which enables them to do what the proper law would not. However, in the Hamlyn Case, the choice between Scottish and English law was so fairly balanced that the decision was probably right on the facts. In Robertson v. Brandes, Schönwald & Co. (8 Fraser, 815: cf. L. M. & R., Aug. 1907), the Court, ostensibly founding on Hamlyn, went much further. To a contract which contained only Scottish and Belgian substantial elements, they applied English law, merely because of a clause providing for a London arbitration. In the Johannesburg Case, the same result was arrived at. The contract was for the execution of works by a Scotch firm in the Transvaal. It was, however, in English form, was executed in England, and provided for an arbitration under the English procedure. The parties had further provided that their contract should be "an English contract, determinable in the English Courts." Lord Mackenzie held that this did not. exclude the Scottish Court's jurisdiction: and, considering the domicile of defenders, he did not think that the forum was non conveniens. But on the authority of Hamlyn and Robertson, he held that the English law applied: and he sisted the action to enable arbitration proceedings, if competent, to be taken in England. As in Robertson, therefore, the neat point was raised, whether parties, at their own hand, can adopt for the construction and governance of their contract, the law of any third country they please, and so evade the provisions. of their own law. Hamlyn did not decide anything so exAt the same time, the Johannesburg Case is capable of being supported as an instance of locus regit actum. The contract was executed in England. treme. The Laws of War. We are glad to receive from Professor Holland an emphatic assurance that, in his valuable book The Laws of War on Land, reviewed in our February number, p. 241, there ද is nothing to suggest any doubt as to the duty of giving 66 66 having laid down his arms, or having no longer means of "defence, has surrendered at discretion." He proceeds"It may be a question up to what moment acts of violence. may be continued without disentitling the doer to be ultimately admitted to the benefit of quarter under this "clause." This qualification, he explains,-" has, of course, "reference only to the question of fact, whether or no a "surrender may be considered as fraudulent if an enemy "has continued to fire under cover of a white flag or other "indication of non-belligerency." This makes it clear that Professor Holland by no means intends to imply that quarter may be refused to a soldier who fires up to the last moment before surrendering-as at first sight his words suggest. Professor Holland also thinks that our reviewer imputed to him an approval of the doctrine of von Moltke and the writers on Kriegsraison. It was rather upon the absence. of any strong reprobation of that doctrine that the criticism appears to have been based. T. B. VII. NOTES ON RECENT CASES (ENGLISH). THE HE rule that in construing a will the Court will not permit a clear and unequivocal gift to be altered or cut down by subsequent words unless they are equally clear and unequivocal, is well illustrated by Hordern v. Hordern (L. R. [1909], A. C. 210). There a testator, who had two sons and several daughters, by his will gave each daughter a fixed charge on his estate, and his wife an annuity till death or re-marriage; and directed that the residue of his estate should be divided equally between his two sons on his youngest child attaining twenty-one. By a codicil he gave his trustee a discretionary power at any time to increase the wife's annuity and made a gift over of the residue to his brother in case all his children died without issue. Clearly, full effect could not be given to this provision unless the division of the residue between the sons was postponed until the widow died or re-married and one of the children died leaving issue. The Court held that this construction could not be put upon the words that the provision must be held to apply only to the period before the date on which the will directed the residue to be distributed, namely, the period before the youngest child attained twenty-one. Chapman v. Michaelson, decided by Eve, J. (L. R. [1908], 2 Ch. 612), has now been affirmed by the Court of Appeal (L. R. [1909], I Ch. 239). The question arose out of a mortgage void under sect. 2 of the Money-lenders Act 1900. The trustee of the borrower applied for a declaration that the mortgage was void without asking for any other relief. The money-lender claimed that the relief sought was equitable, and that consequently the maxim "he who seeks equity must do equity" applied, and the plaintiff was therefore not entitled to the declaration unless on the terms that he returned the money that had been advanced on the mortgage. If the relief sought was equitable, there is no doubt the money-lender's contention was correct (Lodge v. National Union Investment Co. (L. R. [1907], I Ch. 300). And there is equally no doubt that declarations of rights were originally granted solely in the Court of Chancery. But equity granted them only as ancillary to other relief; while by Order XXV, r. 5, the High Court is authorised to grant them without granting consequential relief. This the Court of Appeal held made the remedy a new one, unknown to equity. It is respectfully submitted that it would be more correct to say that declarations are now freed from a restriction equity imposed on their issue. If that is so, they remain equitable remedies still, and there is nothing to show that it was intended they should not be subject to the ordinary rule as to equitable remedies. By sect. 25 (8) of the Judicature Act 1873 the issue of interlocutory injunctions was also granted to the High Court, and was also relieved from certain restrictions imposed by equity. Injunctions are now to issue simply where "it shall appear to the Court to be just or convenient that such order should be made." But nevertheless, it has been held that this in no way alters the principles on which injunctions are to be issued (Day v. Brownrigg, L. R., 10 Ch. D., at p. 307). The rule-which by sect. 24 of the Wills Act 1837 was extended to devises-that as respects property comprised in a will, the will is to speak from the death of the testator, was no doubt intended mainly to avert, what the law has always regarded as a calamity, the possibility of the partial intestacy of the testator. It may, however, be doubted whether in averting this, the rule has not created a greater evil by constantly defeating the obvious intention of the testator. In order to prevent this, in the case of a specific devise, the Court of Appeal had in In re Portal and Lamb (L. R., 30 Ch. D. 50), to read "all my land" in a certain parish, as referring to about a fourth part of the land which the testator at his death owned there. In In re Slater (L. R. [1907], 1 Ch. 665), a bequest of shares was altogether defeated because subsequently to the will, through the amalgamation of the company with others, there was nothing to answer the description at the testator's death, though the testator himself had in no way interfered with the investment. Strange to say, according to In re Jameson, King v. Winn (L. R. [1908], 2 Ch. 111), if the amalgamation had taken place before the will was made, and the testator by his own carelessness had used the same words, the legacy would have been perfectly good and the misdescription held to be merely falsa demonstratio. And now in In re Gillins, Inglis v. Gillins (L. R. [1909], I Ch. 345), the same rule has operated to cut down a legacy to just one-fifth of what the testator obviously intended it to be. There the testator gave "25 shares" in a company to W. then £50. After the execution of the will they were split up into £10 shares. Held that the legatee was entitled only to twenty-five £10 shares. The shares were When does a covenant in a lease "touch or concern the thing demised" so as to make it run with the land? Can a covenant not to do something on land not demised touch and concern the land demised? Prima facie one would say, No. But this is not the answer of the law. If such a covenant affects the land demised "as regards mode of occupation or is such as per se, and not merely from collateral circumstances, affects the value of the land," it touches and concerns the land (per Bayley, J., in Congleton Corporation v. Pattison, 10 East 130, at p. 135). So accordingly, a covenant by a lessor not to build on land adjoining the land demised beyond the fixed building line, directly affects the value of the land demised, and so can be enforced by an action for damages at Common law, not merely by the original lessee but by his assignee (Ricketts v. Enfield Churchwardens, L. R. [1909], 1 Ch. 544). But note that this does not mean that the burden of the covenant runs with the adjoining land and so gives the lessee an action against the assignee of it. For example, a covenant may run with the land on a grant in fee simple; but the burden of it cannot at law run with regard to the land retained by the grantor. That is the reason why equity was forced to invent the doctrine of Tulk v. Moxhay (2 Ph. 774). |