« PreviousContinue »
STIMSON’S LIST of PROPERTIES for
BALE for the present month contains 2,000 investments and can be had free. Particulars inserted without charge. It is the recognized medium for selling or punchasmg proglerty by private contract.—Mi-. Sriusoir, Auctioneer, urveyor, and Valuer, I, New Koiit.-road, S.E.
‘NI R. B. A. REEVES. LAND AGENT and . SURVEYOR. LONSDALE CHAMBERS, 1'1. C-IZIANCERY LANE, is (‘prepared to conduct Sales of Freehold and Leasehol Properties by Auction on moderate terms. The Management of Property and Collection of Rents undertaken.
LONDON LLB. list in Honour!) lire’ pares for all Law Exams.-—London LLIR. n speciality—bv Correspondence and privntely.—I;or particulars of those and Correspondence Cinswfl 01‘ all London University Exams. address Prof. CLIVE. 54. Nelson-square. London. ELF}. _ _V __,._ . LEONARD H. WEST, Ll:-B-. Solicitor. First. Divi=ion and Honours in Common Law and Equity, 1887; First Division M111 Honours in Jurisprudence nnd Roman Law, 1885. University ot London ; Sir Hem?! J _nmes Gold _Medullist, 1886. &c., prepares Pupils a _h_u cllzmbm m 76"" and hv correspondence tor the Solicitors Intermediate and Final. Bar, LL.B., and other Lnw Exnminatious. Terms moderate.-Apply. Brough, East X orkshire.
MR. UTTLEY, Solicitor, successfully PREPARES CANDIDATES. either Privntelv or by Correspondence. for SOLICITORS’ and BAR PRELIMINARY. INTERMEDIATE. and FINALd and LL.B. Examinations. Pupils have obtains Honours. Terms irom £i ls. per month.—Addrsss. 17, Brazennose-street, Albert-square, Manchester.
LAW. — Solicitor requires Partnership ; admitted 1861 ; at present and for five years Inst past in one of the largest City oflices ; has connection and command oi onpital; preliminary clerkship nut objected to.—X.. at the Oflice oi this Paper. LAW.—Wanted, Copying Clerk, must write neatly and expeditiousi_v.—AEply. by letter, g. Bl? care of Housekeeper, 4, Token ouse-buildings, 8.11 .
T OTTENHAM LOCAL BOARD of HEALTH. APPOINTMENT OF SOLIGITOR.
Th B rd is prepared to receive and consider appll(!8:I0::I0‘l‘ the post of " Sohcitcr to the Board."
Particulars of the duties will _be sent to apphcants §;S0llLIOOlSl on a written igiplication to me st the
oai-d's Oflioes, Coombes roit House, High-road, Tottcnham. _ _
Applications endorsed "Solicitor" must be l\" ceived at the Board's Oflices at or before noon on the 22nd February, 1867.
E order. EDW D GROWNE. Clerk to the Board. Tottenham. Bid February, 1881. i *7 W!
Riivisiin CONDITIONS or Assuimwa. — Foreign Residence and Travel.—Ali Policies alrsadv lsluqfl and to be issued alter havingiéieen Five Yeursui Force-—flilI Liie Assured not ng engaged infill? Military, Naval, or Seaiai-ing Service. sud oi the aie of Thirty years and upwards-shall be relieved iroiii all conditions as to Foreign Residence and '1‘raveL
HALF-CREDIT Sx'si'i~:u.-Merchants. Traders. and others requiring the full use of their Capital. and desiring a Life oiicy at the cheapest 1%:-escnt outlayare invited to examine tho terms oi t eliali-Credit System oi this Oiiice.
Prospectuses and further iniormation to be O'Dtained at the Head Oflioe, or of any oi the Agenls
H- RLES STEVEW8 C K Actuary and Secretary. ‘
A LONDON SOLICITOR of pflflillD!l and means is willing to negotiate for the purchase oi a Town Practice of a deceased solicitor or one desirous oi retiring. Principals only dealt with, and any Aaarticulars given will be received in confidence. —A dress, Soniciroa. care of Mr. C. F. Scripps, Advertising Agent, 13, South Moitnii-street. W
DIEW ZEALAND BARRISTFJIIS and
SOLICITORS Mode of becoming Such. Cgfy
New Zealand Law Practitioners’ Acts and R es
thereunder. Sent post-free tor 6s.—N. Z , care of
Hooper 8: Battv. Advertising Contractors, 1-i, Widbroo . London, E.C.
H:DUOATl()N.—To Solicitors and other Professional Men and Gentlemen oi Limited Income.—A few ‘boys, sons 0! the above. are admitted into aweil-known School oi high tone on greatly reduced iecs.— For iuii particulars address, in strict confidence, "MU." care of Messrs. Rolfe Bros., 6, Ciiarterhouse-buildings. Aldcrsgnte, City, E.C.
)ETE(JTiVE OFFICES (SLA'i‘ER’S).—
The only acknowledged Establishment in the City of London. A ply, write, wire, or telephone_ Terms moderate. Consultations tree. Telephone No. 900.—_HENlZY SLATER, Manager, 27, Basinnhallstreet, City. __ ESTABLISHED isrz. I I I if I NSTI’l'UTION_ ior BUYS of the UPPER __ CLASSES only in any Misfortune or Distress.
wo Guineas on admission and Five Guineas per uartor for education, maintenance, and clothing.APPIY to the_CHaPLam. St. Michael's, Woodside. C-roydon. Latin, French, Mathematics.
CASES REPORTED THIS WEEK.
Webber, Ex parts, In re Webbcr.. $08
The Solicitors’ Journal and Reporter.
Tna srocizsrioss we ventured to throw out a few weeks ago with regard to the London-provincial meeting of the Incorporated Law Society have been practically adopted. The council have issued a circular to all the London members of the society informing them that the meeting usually held in the provinces in October will this year_ be held in London, in the week commencing the 6th of June ; and in order to make some return for the hospitality received in the provinces, it is proposed to give a dinner, a ball, and some other entertainment, either theatrical or iuusical, to be fixcd on afterwards. The invitation will be extended to all the country members of the society, and, having regard to the time of the year andthe occasion, it is likely to be very well attended. To meet the expenses ii guarantee fund is proposed to be formed by the‘ members of the council and the London members of the society. All members who guarantee up to, but not exceeding, ten guiiieas are to be members of a grand committee for carrying the otjects in view into effect, and those who guarantee not less than five §111_I1c1_1s will be entitled to take part in the entertainment. Subscriptions of a less amount than five guineas will also be received. S_llfll0l€l|1i guarantees ought to flow in soon, though it is doubtful whether the maximum has not been put at too low a figure. As soon as the guarantees have been received, it is proposed to appoint a_sub-committee, to whom the duties connected with the organization of the entertainment will be iiitrusted. This committee should be small and well chosen, because upon it will, in a great measure, depend the failure or success of the undertaking. While on this subject. we desire to throw out a suggestion, which is that the club should admit as extraordinary members for the week commencing the 6th of June all country members present at the meeting. This may be ullrd vireo, but we do not suppose that
even the most exacting member of the society would take exception to it. We doubt, however, whether it would be ultrd sires, because permitting a person, under exceptional circumstances, to use a. club for a few days, does not constitute him a member. In every provincial town which the Law Society have visited, the solicitors attending the meetings have been made honorary members for the time being of all the clubs in the town.
An ixoiuvious ATTEMPT was made last week, in Phipps v, Jackson, to induce Mr. Justice STIRLING to undertake the enforcement of a stipulation in an agricultural agreement to maintain on the demised farm a sufiicient stock of sheep, horses, and cattle. If the attempt had succeeded, the court might before long have had added to its other manifold duties that of superintending the execution of agricultural agreements throughout the country. As the latc Master of the Rolls said in Musgrave v. Homer (23 W. R. 125, a case which seems to have been lost sight of in Phipps v. Jackson), “the court would be inundated by suits to compel farmers to farm in accordance with their covenants, followed by motions to commit them for not doing so ”; and as there are probably few judges or chief clerks who know turnips from mangold wurzel, it is obvious that this extension of jurisdiction would have involved the addition of an Agricultural Department to the offices of the Supreme Court, and ruddy-faced assessors, clad in leather gaiters, would have had to sit by the learned judges on the hearing of these applications. The rule that the court will not enforce specific performance of covenants in a farming lease has never been doubted since Rayner v. Sfono (2 Eden, l28), where Lord Noirrnnvcrox asked, “How can a Master judge of repairs in husbandry ? ” It has always been considered that these contracts are of such a nature that the court cannot enforce their performance. But, although the court will not grant a mandatory injunction to compel a tenant to cultivate and manage his farm in accordance with his agreements, it has often grantcdinjunctions to restrain acts of farm tenants inconsistent with their express or implied obligations; and there is no small difliculty in laying down any clear rule as to the limits within which the granting of these injunctions will be confined. In Johnson v. Golswaine (3 Austr. 749) the Court of Exchequer, sitting in equity, attempted to limit the intervention by injunction to cases of threatened injury in the nature of irreparable waste, and refused to restrain mere breaches of contract, such as carrying ofi' straw and manure contrary to the tenant’s agreement; but about the same time, in Geast v.‘ Belfast (1ln'd., 749, note (11.) ), an injunction was granted to restrain a tenant from carrying ofi manure in breach of an aflirmative covenant to spend upon the premises all the hay and manure arising from_ them _(see also Fleming v. Snook, 5 Beav. 250, where the doctrine of irreparable injury was disregarded). And in Om-low v._Anon (l6Ves.173) a tenant from year to year was restrained from takipg aw_ay crops and manure contrary to the implied afiirmative stipulation to farm d'n to the custom of the country. The lino of division
carries with it a negative." He thought that_ t _c c_0v8lmI1
keep a sufficient stock on the farm did not fall within either class, and that the application was in reality that the_court should super' t d th execution of this particular stipulation during the rest
should be gircn to the Court of Appeal of aying ow _ _ _ precisely the limits of the intervention of the court by injunctloll
in the case of agricultural agreements.
Tun iii-:ci::vr IRISH cast: of Reg. v. Barrett (I8 L. R. Ir. 480) is of considerable interest as a decision by the Court for the Con; sideration of Crown Cases Reserved that a threat to _boy_cottd is an indictable ofience. The prosecution had been llltjtltlgtef under the Whiteboys Act, 1831 (1 & 2 wdl. 4_, 0- 4_-1); 996"” ° which imposes a sentence of transportation or imprisoiiment on any person who “ shall knowingly print, write, post, publish, circulate,
' to be rinted written P081565, Pubhshedi
send, or deliver, or cause P 1 , 18
circulated, sent, or delivered, any notice, letter, or message exciting, or tending to excite, any riot, tumultuous or unlawful meeting, or assembly, or unlawful confederation or conspiracy, or threatening violence, damage, or injury, upon any condition or in any event or otherwise, to the person or property, real or personal, of any person whatever, or demanding any . . . matter or thing whatsoever, or directing or requiring any person to do, or not to do, any act, or to quit the service or employment of any person, _or to set or give out any land.” The indictment was for knowingly and unlawfully printing a certain notice, described in the first count as “ exciting, or tending to excite, an unlawful confcderacy amongst the traders of Loughrea to refuse to supply goods of all kinds to certain persons then being caretakers of lands, with intent to injure the said persons”; in the second count as “threatening injury and damage to the traders of Loughrea, and their property, if they should supply goods to certain persons then being caretakers ”; and in the third count as “directing and requiring the traders of Loughrea not to supply goods to certain persons being caretakers.” The notice set out in the indictment was a copy of a resolution passed by the local branch of the Irish National League condemning tho action of the traders of Loughrea in supplying goods to emergency men, and stating that the league would
‘ take such steps as we may deem advisable to boycott any trader who supplies them with such goods.” At the trial it was proved that several copies of this notice had been printed and circulated by the prisoner’s directions. The prosecution put in a copy of the DubIinGaz12tte containing a proclamation of the district of Loughrea, but gave no other evidence of its disturbed state, and the prisoner was convicted, subject to a case reserved by Mr. Justice ANDRE\\'S. There was some difference of opinion among the judges, but four of them upheld the conviction. The only udges who thought that the conviction ought to be quashed were the Lord Chicf Baron and Mr. Justice O'BRIEN. The former thought that the meaning of the word “boycott” ought to have been explained by evidence, so as to satisfy the jury that the notice amounted to a threat of force or violence. He further held that all the three counts were bad, apart from the consideration that they could not have been sustained without further evidence of “ the existence of \Vhitcboy disturbance” in the district. Mr. Justice O’Bi<isi~r also held that all the counts were bad, since an “unlawful combination or confederacy,” as contemplated by the statute, could not include “ the casual identity in conduct of a number of traders of different kinds upon uncertain and contingent occasions which in fact may never arise at all.” ' In the earlier case of Rey. v. Coady (10 L. 1t. Ir. 205), a prosecution for boycotting broke down because the court held that the jury should have been asked whether a notice by which a man was “declared boycotted by the competent tribunal” tended, as alleged in the indictment, to excite an unlawful confederacy within section 3 of the Whiteboy Act.
Ir MAY BE asiisiisizusn that throughout the discussions last year and the year before of the Lunacy Bills introduced by Earl Si-:i.iiomzE, and subsequently by Lord HERSCHELL, we urged the necessity for giving to every person to whom lunucy was imputed (subject, of course, to special provisions in urgent cases) an absolute ri_ght_ to demand a judicial investigation before he was deprived of his liberty. We pointed out the illusory character of the pro. visions intended to carry out this object in Lord Hnascnsi.L’s Bill and when we observed the more effectual provisions which appeui in clause 3 of Lord HaLsnUnY’s Lunacy Bill we hoped that the necessity for further protest had ceased. In committee on the Bill, however, both the predecessors of the present Chancellor fell tooth and nail, on these provisions, being apparently greatly more impressed with the necessity for dealing “ promptly ” and it with out unnecessary delay ” with alleged lunatics, than with the possibility that a sane person may be imprisoned. It seems that in deference to these objections, the clause is to be modified d it remains to be seen how far the alteration will be carri d, mlf the clause should he seriously mutilated, We hope that theere. will be found so, 1 ' th H f to restore itliibfiibibhiiyin i e ouse 0 Commons who Wm attemllt
Goldslrom v. Tullcrman (34 W. R. 507, 17 Q. B. D. 259) in the court below, as deciding that a provision that moneys paid for insurance by the grantor of a hill of sale should remain a charge during a fixed period at twenty per cent. interest, invalidated a bill of sale, but did not refer in- this connection to the reversal of that decision on appeal (reported 18 Q. B. D. 1).
REASONABLENESS OF A CONDITION UNDER THE RAILWAY AND CANAL TRAFFIC ACT.
Trincase of Dickson v. GrcatNorthe1'n Railway 0'0. (35 W.R.202, l8 Q. B. D. 176) raised a number ofinteresting and important points with regard to the liability of railway companies as carriers of animals and the construction of the provisions of the Railway and Canal Traflic Act, 1854. The decision arrived at seems to us to be based on most convincing arguments so far as the particular case was concerned, but each of the judges of appeal, in delivering j udgmcnt, appears to have enunciated a proposition about which we must confess to feeling some little difficulty.
The question upon which the case turned was whether a certain condition contained in a printed ticket signed by a person delivering a dog to a railway company for carriage was just and reasonable within the meaning of the 7th section of the Railway and Canal Traflic Act, 1854. The condition was as follows :-—“The company are not and will not be common carriers of dogs, nor will they receive dogs for conveyance except on the terms that they shall not be responsible for any amount of damages for the loss thereof, or for injury thereto, beyond the sum of £2 unless a higher value be declared at the time of delivery to the company, and u percentage of five per cent. paid upon the excess of value beyond the £2 so declared.” The court held, in substance, that, though the company were not bound to he common carriers of dogs, they were bound to carry dogs on reasonable terms, and that the condition was unreasonable on the ground that the percentage of five per cent. was unreasonably large. They held that the addition of that percentage to the ordinary fare made the total fare for the carriage of the dog from London to Newcastle, on the terms of the ordinary liability of bailees for hire, outrageously large, and, therefore, practically left the sender no alternative but to accept terms which imported total absence of liability on the part of the company even for gross negligence or wilful misconduct of their servants.
Inasmuch as they appear to have held this with regard to tlw condition as applied to the particular case—viz., that of a jflllmei from London to Newcastle—the proposition to which we allude is, perhaps, to be regarded as only an obiter dictum. It appom to be to the effect that, when the condition is by way of gellfirfil notice or condition given or used by the company indiscriminately 111 all cases, the reasonableness or otherwise of the condition must be judged of, not in relation to the circumstances of the particular case only, but to all possible cases to which the condition would appl)’For instance, a percentage on the value of the dog Wllifill mlfihl‘ make the fare not excessive for a long distance—as from L011ll°ll to Newcastle—might. still conceivably make it excessive for ri journey of a few miles. And it would seem that the court though‘ that, if such a condition were unreasonable as applied to_suchs Joilrney, it would be unreasonable generally, although it W85 really unnecessary to decide the point. Lord Esher, M R» "Y9: “The condition appears to be a notice to the public in ,s@11"“lapplicable to the case of all persons for whom dogs are 0B.l'!'l€('l1 "ml I think, therefore, we have to see whether it is reasonable B5 aPPlicd to all cases to which it is applicable.” Lin<lle)’»'L'J'i says: "‘ The contract in question is c printed form applicable indiscriminately to all senders of all dogs by all trains ai1d_l° all places to which the company agree to carry dogs. This circumstance justifies the court in looking to the contract, not 0nlY “uh reference to the plaintiff, but also with reference to its reasonableness to the public generally. It is not like a special contract which is not a common form." Lopes, L J., said: " H*}““3 Tegfifd to the fact that the terms are contained in ii Pimttid notice, and are used indiscriminately, whatever the ordinary £3119 _m9-Y be, and whether the distance is long or short. I ‘ml of oP_1nion that the reasonableness of the terms must be determined with reference to the public at large and not with reference to lh? conveyame °f this PB-rticular dog from London t0 New’ cast e. ’
Feb. 26, I887. THE SOLICITORS’ JOURNAL. 281
We cannot help feeling some doubt whether this view of the case is not at bottom inconsistent with the principle finally established by the case of Peek v. North Stqflorzls-hire Railway Co. (10 H. L. Gas. 473). The decision that the condition, to be effective, must be embodied in a signed special contract seems to us to involve the view that these notices or conditions are, after all, only effective as terms of a contract; and, that being so, it seems to us diflicult to see why the reasonableness of such a condition should be considered, otherwise than with regard to the circumstances of this particular contract. It is not as if the Legislature had given to the company power to make general conditions in invilos, to afi'ect the public, as being in the nature, as it were, of statutory byelaws; it might well be then that the condition must be reasonable, as applied to all circumstances, to be valid; but we cannot very well see, having regard to the decisions, how the section can be construed as meaning anything more than that the special contract must be reasonable, and, if so, it seems to follow that that must be judged of with regard to the bearing of the contract on the particular case in reference to which it is made. We shall look forward with interest to the further discussion of this point, which may be very important in relation to the construction of these special contracts.
Though there may be little difficulty in arriving at the conclusion that the percentage in the particular condition which we are discussing was too large, it seems to us that the effect of the considerations relied upon by the judges is to shew the great difliculties that must arise in the application of the provisions of the 7th section of the Railway and Canal Trafilc Act to the exigencies of railway traffic in general. The 7th section in terms makes, with regard to certain animals, provisions which, in form, are analogous to those of the condition in the case we are discussing. It is provided, with regard to sheep for instance, that no more than £2 shall be recoverable unless the value is declared, in which case the company may charge a reasonable percentage on the excess of value so declared over £2. It would appear that this percentage may be fixed irrespectively of the distance for which the animal is carried; and, if the statute provides for the same percentage being imposed, whatever the distance, in the ease of sheep, it appears impossible to say that the same is not to hold good in the case of percentages fixed by special contracts with regard to animals not expressly provided for by the 7th section. It seems extremely diflieult to say with reference to what considerations the reasonable percentage is to be fixed. There is nothing to shew whether the Legislature contemplated something in the nature of a premium of insurance or a reward for extra responsibility involving extra care. In one case the reasonableness would seem to depend on some such basis as the calculation of the average rate of casualties in proportion to the number of carriages of animals of the sort in question. We do not know how far such a calculation would be possible, but it is manifest that many difficulties would arise. In the other case it seems equally diflicult to arrive at a reasonable percentage as apphcable to all distances indiscriminately.
COVENANTS RUNNING WITH THE LAND. (11.) COVENANTS IN GENERAL (continued).
I-1\'_our last article we shewed that there has been a strong current of judicial opinion setting against the possibility of the burden of any such covenants as those now in question running with the land ——_covenants, namely, touching the doing or not doing of certain things connected with it. But, in the place of the doctrine thus 9xP1°d°d, R more powerful engine still for efiecting the 5111116 purpose has been discovered in the equitable doctrine of notice. This we shall now further examine. It rests, as we have seen, “P°l1 the view that a man who has purchased anything, knowing that his vendor has entered into a contract with regard to that thing, is bound to do nothing that would cause a breach of such contract. This, of course, is a great development of the doctrine, H5 compared with the manner in which it was applied'by Lord B"°"8l1aminKe polv. Bailey (1834, 2 My. a K. 517). He, as Fe h“°_ 59°11, Ieiiised to give efiect to notice when the covenant In ‘ll-1_98tion was of an unusual nature. The extent to which the d°@tl1ne has been carried is well illustrated by the case of De Malice v. Gibson (1858, 4 De G. 8: J. 282), though it is not one
relating to land. A., the owner of a ship, entered into a charter-
“Reason and justice seem to prescribe that where a man, by yifl
This form of the doctrine of notice was applied in Catt v. Tourle (1869, 4 Oh. 654). C., a. brewer, conveyed land to the trustees of a freehold land society, who covenanted with him that he should have the exclusive right of supplying beer. The trustees conveyed a plot to T., who was also a brewer, with the result that C. sought to protect himself by praying for an injunction against him. It was attempted on various grounds to shew that the covenant was not binding. Uncertainty, want of mutuality, restraint of trade, all were tried and all failed. The notice which T. had had was deemed to be conclusive, and Sir C. J. Selwyn, L.J., ‘founded his judgment on the extension the doctrine had received in Dc Matias v. Gibson.
It may be interesting to refer to the powerful effect the doctrine had in Daniel v. Sfepney (1872, L. R. 7 Ex. 327, 9 Ex. 185). S. demised mines to E. for forty years, and took power of distress over any lands of E. that might have openings into the mines. Lands answering this description were sold to D. In the Exchequer they went by strict law. A rent service issues only out of the land demised, and a rent-charge must be properly imposed, and cannot shift about from one piece of land to another. Thus, in neither form, could the power be supported. But, on appeal, S. brought in the late Mr. Joshua Williams, who expounded to the court and his opponents the doctrine of notice, a doctrine which the latter at once admitted they could not withstand. Thus the power of distress was held good_as against_D.
Finally, we may notice how this modern doctrine of notice has quite done away with the old requirement of privity of estate between covenantor and covenantee, if it ever existed; how, indeed, no relation of any kind other than that created by the covenant itself is necessary. Thus, in Lu/cer v. Dennis (1877, 7 Ch. D. 227), where the purchaser of a p_ubhc-house_covenante_d to get beer from a particular brewer, not his vendor, it was said by Fry, J ., that, although there was no antecedent relation betw cen the original covenantor and covenantee, such as lessor and lessee, vendor and purchaser, yet the covenant bound a purchaser takmg with notice. He also pointed out how the equitable doctrine had been extended since the time of Lord Brougham in Keppel vBailey, referring to the cases of De Malta: v. Gibson and Gail v. Tourle just quoted. _ _
Thus the doctrine of notice has practically replaced the _old doctrine of covenants running with the laud, and the required etiect is produced in a plain and straightfo_rward‘manner. Some alarm, however, has been felt at the ease with which burdens may in this way be imposed on land, and it h_as been suggested tlhat it constitutes an infraction of the rule agamst perpetuities. h he point was raised, as we have already remarked, by Lord Bl‘f>l13h;111 in Koppel v. Bailey (2 My. & K., at p. 52_7). The objection is t t_ 8restraint imposed on land by covenant impedes its free alienii 1:11 for a time which may exceed the lim_1t allowed by the rule. fit o f Brougham admitted this, _but decided that, if the b6l_lt9 tho the covenant was vested in _a person able to I'6l88.S61a1 (,1 hen it was possible for a good title to be made to _the u to fie from the covenant, and so there was really no hindrapcle 1 8 alienation. In this, however, there were two fundameq que1'l‘ol;iBThe rule against perpetuities did not apply to_ the casq 11 AB bflzlhé even supposing it did, the use made of it was rncqrfiio -_ a e first point, it is only necessary to quote the 0 °Wm8 P ‘"5
from Sanders’ Uses and Trusts (vol. 1, p. 204) :—
“ A perpetuity may be defined to be a future limitation, restraining the owner of the estate from aliening the fee simple of the property discharged of such future use or estate, bqfore the event is determined or the period is arrived when such future -use or estate t8 to arise."
It is implied, of course, that such event or period is more remote than the law allows. Thus, the rule against perpetuities forbids future estates and interests from arising beyond the proper period ; but the covenants we are discussing are present interests, and no more offend against the rule than easements or perpetual rent-charges, or any other of the lesser rights which may be cut off from the totality of rights known as the ownership. Again, the rule against perpetuities may be infringed although the objectionable interest is vested in a person who is capable of releasing it. The mistake of Lord Brougham was repeated very strikingly in Gilbertson v. Richards (4 H. & N. 277, 5 H. & N. 453). The same view was taken also by Fry, J., in Birmingham Canal Co. v. Cartwright (ll Ch. D. 421). This was a case in which the owner of land had covenanted to give a right of pre-emption over it, unlimited in point of time. Mr. Justice Fry expressed himself as follows :—“ I think that whereevera right or interest is presently vested in A. and his heirs, although the right may not a-rise until the happening of some continzgency which may not take eflizct within the period defined by the ru e against perpetuities, such right or interest is not obnoxious to that rule, and for this reason. The rule is aimed at preventing the suspension of the power qf dealing with propert_1,—-the alienation of land or other property. But, when there is a present right of that sort, although its exercise may depend upon a future contingency, and the right is vested in an ascertained person or persons, that person or persons, concurring with the person who is subject to the right, can make a perfectly good title to the property. The total interest in the land, so to speak, is divided between the covenantor and the covenantee, and they can together at any time alienate the land absolutely.”
The whole matter, however, was reviewed, and the above opinion corrected in London and South-Western Railway 00. v. Gomm (1882, 30 W. R. 321, 620, 20 Ch. D. 562). There the company sold superfluous land, and the purchaser covenanted to re-convey at the same price whenever it was wanted for the railway. The matter first came before Kay, J. He quoted the two cases just referred to, but refused to be ‘bound by them. In his opinion a present right to an interest in property which might arise at a period beyond the legal limit was void, notwithstanding that the person entitled to 1t might release it. This view he established on the authority of eminent writers, such as Butler, Lewis, and Jarman. But as he considered that the covenant in question did not, in fact create_an interest in the land, he held that the rule against per: pctuities did not apply, and that the covenant could be enforced on the prmciple of Tulle v. Moahay. In the Court of Appeal he was strongly supported as to the former part of his udgment and the matter was fully treated by Jessel, M.R., but, as to the’latt,e1- i1; was held that the covenant did constitute an interest in land rind so was void within the rule. '
It is thus clearly established that a covenant binding the laud in equity_—t.e., binding successive owners with notice—is not void as infringing the rule against perpetuities, unless it is of such a nature as to create, when it takes effect, an interest in the land
But, although the doctrine that the burden of the covenants‘ in question is binding by virtue of notice seems to be thus settled and the objection to it, on the ground of perpetuity to be suc’ oessfully overcome, ycta learned writer on the law of rbal pro on _ has expressed a doubt upon the final acceptance of the dociring £1’-“:1i1):yt;>pl:pt1eg'p§t1pg to quote the following from Mr. Challis (Real
“ But the whole principle of Tulk u. Moxhu res ' grounds if equity, and it seems in the courtsybeloiii ttiiolirxllitbhous carried to some absurd lengths. It has never been c -'d Jam the .H/ruse of Lords; and it is not improbabl destonitz ler.e by doctrine of the consolidation of mortgage; 10 haze Hie ’ lg? the whenever it shalt come bgfore that august }¢,'bu,,al_,,' 16:71.98 c zpped
provided the intention be clear that the assigns should be bound, it is immaterial whether they are mentioned or not. Reference may be made, however, to Wolstenholme and Turner's Conveyancing Acts, p. 113, where, in the note to section 58, it is stated to be advisable for assigns always to be mentioned when they are intended to b_e bound. The section only deals with the devolution of the benefit of the covenant; the framers of the Act seem to have preferred not to touch the question of the burden.
BEFORE the passing of the Wine and Beerhouse Act, 1869, absorhouse licence was obtained from the Excise without any intervention of justices, but that Act required a certificate from the general annual licensing meeting of justices as an authority for the Excise licence, thus assimilating the law as to bcerhouses to that relating public-houses under 9 Geo. 4, c. 61. But by section S a certificate in respect of a licence for sale for oopsumption off thipremisesfiwgs neg to be refused except on some of t e four grounds t ere speci e , an by section 19 a. certificate for sale for consumptlilon on the prilenilises was not to be refused in the case of a house wit respect to w ic an on-licence was in force on 1st May, 1869, except on some of the same grounds. By section 7 of the Wine and Beerhouse Act Amendment Act, 1870, section 19 of the Act of 1869 is made to extend to licences by way of renewal from time to time of licences in force on lst May, 1869, “ whether such licences continue to be held by the same person; or have been or may be transferred to any other erson or ersons. ’
Thepquestion the above case was whether the justices at special sessions intrusled with transfers of public-house justices’ licences and beer-house certificates (among other cases) from an outgoing to an incoming occupier of premises, were, on an application for transfer of a certificate for an on-licence for premises in respect of whichlan on-licence was in force on lst May, lSG9,drestricted to 1r;f\1fsl;1g the transfer upon some of the ounds referre to in section o 6 Act of 1869, or whether they hill an unqualified discretion to refuse the transfer. _
In the Act of 1869 the only distinct provision—and, it is submitted. the only provision—relative to transfers is sectior; 9, at1:1t1h<$z1ng 1; transfer at ett sessions, which was to remain in orce ' 8 1191 special sessiponsy or the next annual licensing meeting, whichever came first ; and that enactment merely says: “ Acertificate maybetransferred to a new tenant . . . by thejustices . . . in petty sessions."_'l‘heenactment was repealed by the Act of 1870, and the enactments 1!] that Act on this subject are the following :—Section -1, sub-section (4). enflflllflr “ It shall be in the discretion of the justices to whom an application for a transfer is made, either to allow or refuse the application. 0? l° adjourn the consideration thereof “ ; and sub-section (5). film’ repealing section 9 of the Act of 1869 as already mentioned, enact-‘I that, “ subject to the provisions of this section, all the provisions Oi the Act 9 Geo. 4, o. 61, and Acts amending the same, relating l° . . . the transfer, removal, and transmission of such hceiwflfl [that is, justices’ licences], and the grant of licences upon $551511‘ "lent. death. change of occupancy, or other contingency - - shall have effect with regard to certificates granted, or to be granted, under the principal Act [tho Act of 1869] and this Act.” The words “ subject to the provisions of this section ” can only have reference t0 the preceding sub-section (4).
In the above case the court, consisting of Lord Coleridge, _C-J» and Bowen, L.J., having taken time to consider, in their Pldgment adopted the idea that before the passing of tho Act of 1870 there _Wfl5 “ a. fetter ” on the discretion of the justices in the case of aPP1i°"t“°us for a transfer, and, there being no provision previously made for the adjournment of special sessions, considered that section 4, sub-section (‘lb Of the Act of 1870 “though perhaps inartistically 8XP1'°5s°d‘ really was designed only to perfect the procedure at a frflllifet sessions by making adjournments lawful," and accordingly held Hm there was the same restriction upon the power of a special session! 5° refuse a transfer as there was upon the power to refuse a renewal at the annual licensing meeting.
The provisions affecting the uestiori under consideration 599"‘ scarcely to have been adequately dealt with in the judgment, and we submit, with deference, that the conclusion come to by the court was erroneous. We are unable to find any previous statut01'$' fetter on the transfer such as the court was referring to; section 19 of the ActQi15_69' which appears to have been supposed to place this fetter 119°" lusmes at special sessions, uses the expression “ it shall not be lawful for the justiws 5° refuse,” but it appears to lis that this section, M “'83 °°.n' tended by counsel for the justices has no reference l/0 _5Pe.cml sessions, and that the scheme of the Act shews that the_J115t1_°°s mentioned in this section are the justices at the anmlfll lwensmg