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Tomlin, Arthur John, Salem rd, Bayswater, Coach Builder. Jan 24 DORO U GH OF SALF ORD at 2 at offices of Browne, Westbourne grove. Tilsley, Abchurch
yard Wallis, James, Kingston-upon-Hull, Timber Merchant. Jan 17 at 12
OFFICE OF TOWN CLERK. at Imperial Hotel, Paragon st, Kingston-on-Hull. Walker and
The Council of the Borough of Salford are prepared to receive Spink, Hull
Applications for the Office of Town Clerk and Solicitor for the Cor. Warwick, Joseph, Gray's inn rd Pianoforte Manufacturər. Jan 13
poration. The salary will be £1,000 per annum. The gentleman to at 12 at offices of Matthews and Wells, John st, Bedford row
be appointed will be required to devote the whole of his time to the Wilkinson, Thomas, Ardleigh, Essex, Grocer. Jan 27 at 12 at
service of the Corporation, and must not be less than thirty-five the Fleece Inn, Head st, Colchester. Pollard, Ipswich
years of age. Applications, with copies of testimonials, addressud Williams, Edward, Weston-super-Mare, Builder. Jan 27 at 11
to the Mayor of Salford, must be delivered at the Town Hall, at offices of Jones, Magdala buildings, Weston-super-Mare
Salford, not later than Thursday, the 29th inst. A list of duties, Wilson, John, Felling, Durham, Grocer. Jan 14 at 3 at offices of
and general terms of conditions, can be obtained from the Town Newlands, King st, South Shields Wright, John, jun, Metal Bridge, near Ferryhill, Durham, Grocer.
Clerk, (By order)
CHRIS. MOORHOUSE, Town Clərk. Jan 18 at 3 at offices of Wilkes, Northgate, Darlington
Town Hall, Salford, January 5, 1881.
| Clerk to a firm of Solicitors at Madras. Must be experienced
in Conveyancing, and acquainted with Company Law.--Address, Anti-Dyspeptic Cocoa or Chocolate Powder.
with full particulars, to M. B., care of Messrs. Moulton, 37, Chan. Guaranteed Pure Soluble Cocod of the Finest Quality, with the
cery-lane, w.c. excess of fat extracted.
The Faculty pronounce it " the most nutritious, perfectly digestible TO COUNTRY SOLICITORS.-A Solicitor prac. beverage for Breakfast, Luncheon, or Supper, and invaluable for tising in the City, desires an Engagement as Clerk for con. Ir valids and Children."
ducting Town Business. Salary (moderate) fixed, or according to Highly commended by the entire Medica Press.
work done.-Letters to W.,“ Solicitors' Journal,” 52, Carey-street, Bring without sugar, spice, or other admixture, it suits all palates,
W.0. keeps better in all climates, and is four times the strength of cocoas
PRELIMINARY, INTERMEDIATE, FINAL (Pass and Honours), THICKENED yet WBAKENED with starch, &c., and IN REALITY CHEAPER
LAW EXAMINATION. than such Mixtures. Made instantaneously with boiling water, a teaspoonful to a Break.
M R. ALBERT GIBSON'S Classes and Postal fast Cup, costing less than a halfpenny.
I Preparation for these Examinations continue throughout COCOATINA A LA VANILLE is the most delicate, digestible, cheapest the year, except during one month in summer. Two Residential Vanilla Chocolate, and may be taken when richer chocolate is pro Pupils received. Terms on application to 35, Southampton-build. hibited.
ings, Chancery-lane, or to St. Mary Cray, Chislehurst. In tin packets at ls, 6d., 38., 58. 6d., &c., by Chemists and Grocers, [N.B.-At the Michaelmas Examination, 1880, out of 26 pupils Charities on Special Terms by the Sole Proprietors,
sent up for the Final 22 passed, out of 17 sent up for the InterH. SCHWEITZER & CO., 10, Adam-street, London, W.C.
mediate 16 passed, and all 9 pupils sent up for the Preliminary passed. At seven out of the last eight Examinations Mr. Gibson's
pupils have taken Xonours; the_successes including First, MR. G. H. JONES,
Second, Third, Fourth, and Fifth Prizemen, besides many Cer.
tificates of Merit. Second and Third Class Honours. In last SURGEON DENTIST,
June pour and in last November three pupils secured Honours.] 57, GREAT RUSSELL STREET, LONDON (Immediately opposite the British Museum),
LONDON GAZETTE (published by authority) and LONDON and Supplies, by his absolutely Painless System of Dentistry, the Great
COUNTRY ADVERTISEMENT OFFICE. Exhibition Prize Medal Teeth (London, Paris, New York, Berlin,
No. 117, CHANCERY LANE, FLEET STREET. Vienna, &c.). S. G. Hutchins, Esq., Surgeon-Dentist to the Queen,
HENRY GREEN, Advertisement Agent, begs to 88ys:-“I am glad you have obtained her Majesty's Royal Letters Patent to protect what I consider the perfection of painless den.
direct the attention of the Legal Profession to the advantages tistry." Professor Gardner, late of the Royal Polytechnic Insti
of his long experience of upwards of thirty years, in the special insertution, says :-"I have examined and tested your patented painless
tion of all pro forma notices, &c., and hereby solicits their continued system of adjustment; it is quite perfect, and is the most successful
support.-N.B. One copy of advertisement only required, and the application of scientific laws for securing actual wear and comfort
strictest care and promptitude assured. Official stamped forms for yet introduced.” Consultation free daily, and terms to suit every.
advertisement and file of “ London Gazette ” kept. By appointment. one, Pamphlet, “Painless Dentistry," 116th Edition, gratis and post free.
DEADING SCHOOL.-A Public School on the
I SEPARATE HOUSE SYSTEM, Number of Boarders EDE AND SON
rapidly increasing. The next Term begins Jan. 19, 1881. Inclusive terms, 64 to 75 guineas.--For fullest particulars apply to the HEAD
TYRANT'S MORELLA CHERRY BRANDY. BY SPECIAL APPOINTMENT,
Have you ever tasted it ? To Her Majesty, the Lord Chancellor, the Whole of the Judicial Bench
The most delicious liqueur in the world.
Nice with hot water, or aërated waters.
MORELLA CHERRY BRANDY,
Obtained at all Refreshment Bars,
All Restaurants, Inns, and Hotels,
And of all Wine Merchants.
RANTS MORELLA CHERRYBRANDY. 94. CHANCERY LANE, LONDON.
The most wholesome of all stimulants,
See Medical Testimonials.
MORELLA CHERRY BRANDY.
Is used in place of Wine.
The Sportsman's and Traveller's Companion. тн в
Esteemed in the Army and Navy.
Supplied to the Queen at all the Palaces.
To the Governor-General of Canada.
To the Aristocracy, and general public.
THOMAS GRANT, The Distillery, Maidstone.
THURGOOD & 00., Estate and Land Agents Half Calf, 5s., 6s., and 8s. 6d., according to Diary space. 1 Surveyors and Auctioneers, Lonsdale Cbam bers, 27, Chancery. WATERLOW AND SONS lane, W.O., hold PERIODICAL SALES ot Property, at the MART, thi LIMITED,
Second Tuesday in each month. Railway, School Board, Corporation 95 & 96, LONDON WALL, & 49, PARLIAMENT ST., LONDON. Board of Works, and other Compensations conducted. Valuati ns fo And may be obtained of all Booksellers,
Probate, Mortgages, &c. Estates managed.
A scale of charges upon application.
MESSRS. DEBENHAM,TEWSON & FARMER': experience chief object. --Apply, F., 129, Gower-street.
LIST of ESTATES and HOUSES to be SOLD or LET, includin Landed Estates, Town and Country Residences, Hunting and Shootin
Quarters, Farms, Ground Rents, Rent Charges, House Property an T AW.-Wanted, by a Gentleman (M.A. Oxford) who Investments generally, is published on the first day of each mont!
has capital, and is to be admitted Solicitor this month, a and may be obtained free of charge, at their ofices, 80, Oheapeide, E.C Clerkship with view to a Partnership. Advertiser has large family or will be sent by postin return for two stamps.- Particulars for inse and some commercial connection.-H. A., Fern Cottage, Park-road,
tion shoulde be received Dot later they four days previous to the en Twickenham,
of the precding mouth.
COVENANT NOT TO ASSIGX WITHOUT CONSENT .........
................. 200 ........................ 200
LEGISLATION OF THE WEEK..
is not intended to provide for the appointment of a LONDON, JANUARY 15, 1881.
successor to Sir James ColvILE. The 3 & 4 Will. 4, c. 41, by which the Judicial Committee was first con
stituted, provided, by section 1, that such committee CONTENTS.
should consist of the Lord Chancellor, the Lords Chief Justices of the Courts of Queen's Bench and Common
Pleas, the Master of the Rolls, the Lord Chief Baron, the CORREST TOPICS
judges of the Admiralty and Prerogative Courts, the CONTINUING SURFACE DAMAGE........
196 Vice-Chancellor of England, the Chief Judge of the RITIES ......
Court of Bankruptcy, and all ex-Lord Chancellors, with CORESPONDENCE ......... CASES OF THE WEEK :
two additional members of the Committee to be appointed Underhav v. Smith ....
by the Crown. The Court of Chancery and Judicial Conacher v. Conacher.
Committee Act, 1851 (14 & 15 Vict. c. 83), which proOBITTARY ...
199 LAW STUDENTS' JOURNAL.....
199 vided for the appointment of two Lords Justices of ApLEGAL APPOINTMENTS ..
peal, enacted, by section 15, that “every person holding, CREDITORS' CLAIMS .....
or who has held, the office of a judge of the Court of COTXIT COTRIS
202 Appeal in Chancery shall, if a member of her Majesty's
204 Corti PAPERS
Privy Council, be a member of the Judicial Committee
201 LOSDOS GAZETTES, &c
207 of the Privy Council.” The Appellate Jurisdiction Act
(39 & 40 Vict. c. 59) provides, by section 6, that the two
Lords of Appeal in Ordinary appointed under that Act CASES REPORTED IN THE WEEKLY REPORTER. I shall, if Privy Councillors, be members of the Judicial “Alhambra," The (Adm. Div.) Allen . Southampton. Roper's claim (Ch.Div. V.C.M.)
Committee, but no corresponding provision was made in Challinor, Ex parte. In re Rogers (App.) .....
205 the case either of the ordinary judge of appeal appointed Charing Cross Advance and Deposit Bank, Ex parte. In re
under the Judicature Act, 1875, or of the three additional Parker (App.) ................
204 Great Britain Mutual Assurance Society, In re (App.) ........ 202 judges of appeal transferred from the Common Law Hills Trusts. In re (Ch. Div. V.C.M.) ..
211 Divisions under the Appellate Jurisdiction Act, 1876. Kane v. Kane (Ch.Div. V.C.H.).......
212 Kingsman v. Kingsman (App.)
The present Act, however, qualifies all the present .....
207 Mayd, In the Goods of (Prob. Div.) ................
214 Lords Justices of Appeal for taking part in the proMillington v. Loring (App.).....
ceedings of the Judicial Committee, by enacting (by Morgan v. Rees (Q.B. Div.) ........................
. 213 Stockil v. Panshon (Prob. Div.) ........
section 1) that "every person holding, or who has held Inion Bank of London v. Ingram (Ch.Diy. M.R.)..
209 in England, the office of a Lord Justice of Appeal shall, Ward, Ex parte. In re Ward (App.)
if a member of her Majesty's Privy Council in England,
201 Warner v. Mosses (App.) .................
be a member of the Judicial Committee of the Privy
THE PROTEST “ against the State's encroachments LORD JUSTICE BRAMWELL is expected to return to
to upon rights assured to the Church of England by solemn Ergland in April next.
Acts of Parliament,” which has found utterance in the memorial by Dean Church and others to the Arch
bishop of Canterbury, is not inaptly followed by a THE MASTER OF THE ROLLs, having regard to the length deprecation of the attempt to “enter into details upon of his list of non-witness causes, will next week take a subject confessedly surrounded with great difficulties.” non-witness causes only.
An Act of Parliament, however, either exists or it does not, and we have endeavoured to discover what are the
rights assured by the solemn Acts of Parliament referred THE COURT OF APPEAL, at the end of the Dale case, to. First, we have the pre-Reformation period, during will proceed with the hearing of the list of interlocutory which by Magna Charta, and afterwards by 25 Ed. 1 appeals from all the divisions of the High Court.
(Confirmatio Chartarum), and 14 Ed. 3, c. 1, it was declared that “the Church of England shall be free, and
shall have her whole rights and liberties inviolable," and THE CAUSE BOOK of the Master of the Rolls is being that “ Holy Church have her liburties in quietness, without Tapidly added to day by day; and it is anticipated that interruption or disturbance.” This is full, affirmative, the next transfer to Mr. Justice Fry will comprise a sweeping, and solemn, though a little vague. Then we have considerable number of the witness causes set down for the Reformation Acts of Henry the Eighth, the most im. the Master of the Rolls.
portant of which is the “ Act of Submission of the Clergie to the Kynge's Majestie" (25 Hen. 8, c. 19). By this Act
no canons may be made without the Royal assent, or IT IS UNDERSTOOD that the building in Chancery-lane made contrary to the Royal prerogative, or the customs, occupied by some of the Chancery Registrars, the Chan laws, or statutes of this realm. Then we have the Acts cery Paymaster, the Record and Writ Clerks, and the of Uniformity of Elizabeth (1 Eliz. c. 1), and Charles the Clerk of Enrolmente, before their removal to the Royal Second (14 Car. 2, c. 1). The first of these Acts revives Courts of Justice, will, towards the latter end of next
a number of prior statutes, of which the Act of Submonth, be handed over to the Honourable Society of
mission is one, and unites all ecclesiastical jurisdiction Lincoln's-ind, in pursuance of the provisions of 28 & 29 “ to the Imperial Crown of this realm." The second, in Vict. c. 48.
providing for the uniformity of worship, recites indeed the
assent of Convocation to its provisions, but contains no THE JUDICIAL COMMITTEE BILL, which has been in- leaving clause for consulting Convocation in future, the troduced in the House of Lords by the Lord Chancellor, only saving clanse being one, section 20, of confirmation
of all former laws and statutes for uniformity of worship. I THE JUDGMENT of the Common Pleas Division, delivered Since the Reformation, all Acts upon the subject have on Tuesday, in the case of Tanner v. The Swindon and been restrictive of the independence of the clergy, Marlborough Railway Company, in which an inquisition (although many acts, of which the Clerical Subscription Act for damages in a compensation case was set aside on the 1865 is the most important, have enlarged their liberty), ground that a champagne lunch had been given to the and it seems to follow that there has been an implied jury by the claimant, has introduced some novel distinc. repeal of the “solemn Acts of Parliament” which were tions into that branch of law (more developed in the passed in the pre-Reformation period. How far the United States than in this country) which relates to Crown might make ecclesiastical law without the consent “ treating" jurors. Thus Mr. Justice GROVE distinof the other branches of the Legislature, or how far the guished between an unpremeditated luncheon and a Act of Submission falls to the ground by the substitution luncheon prepared beforehand, and between a champagne of the High Court of Delegates, by 2 & 3 Will. 4. c. 22, luncheon and a luncheon of every day occurrence. If for the Ecclesiastical Commissioners mentioned in that the only reason for upsetting the verdict of a “ treated" Act, may be questions " surrounded with great diffi jury is that stated by the court-viz., the fear that a culties" ; but having looked with some care into the tendency to favour the person providing the luncheon statutory charter put forward in the memorial, we have will result — then the distinctions, suggested are: no hesitation in saying that (even making full allowance reasonable. A premeditated luncheon will usually for the fact that the Act of Submission registered a be a better luncheon than an unpremeditated one, submission to the Crown, and not, eo nomine, to Parlia, and a champagne luncheon will generally be more ment) “there is nothing in it." And in the second popular than a non-champagne luncheon. But is edition of Blunt's Church Law, revised by Mr. WALTER it clear that this is the only ground for setting aside the PHILLIMORE, page 6, we find it said, " It is now a nearly verdict ? Would it not be reasonable to hold that, recognized principle of the English Constitution that whether the luncheon did or did not influence the minds Parliament is supreme.” In fact, it seems pretty clear of the jury in favour of the provider, it had a tendency that if the “solemn Acts of Parliament” are to be to render their minds unfit for the proper performance of revived, the pre-Reformation constitution of the Church their duties? This is the doctrine of the United States of England must be revived with them-but perhaps courts, or some of them; but, on the ground that it would this may be what the memorialists desire.
be difficult and dangerous to lay down any rule by which
it should be determined whether a juror had drunk too MESSRS. LOFTS & WARNER, in replying in the Times
much or not, they seem to have pushed the doctrine to to an unwise letter by the promoter of the Temple Bar
| an absurd length, and to hold that even the slightest Memorial, relating to the leases on the Conduit Mead
indulgence in drink will incapacitate a juror. Thus, in Estate, mention a course that has been adopted in
State v. Baldy (17 Iowa, 39), the verdict of a jury was some cases which seems to afford a hint of some
set aside because one of the jurors, who had been pervalue. It appears that the Conduit Mead Estate was
mitted to retire for a few moments, drank a glass of ale originally leased at ground-rents for building for
at a grocery store. And in Brant v. Fowler (7 Cow. terms of about sixty years, but renewable in per.
562) the court upset a verdict because one of the jurors
had taken one-third of & gill of brandy “to check petuity upon payment of a fixed fine and fees every fourteen years; and it is stated that the City corporation
diarrhoea.” Subsequent cases have modified the stringency exercise their power in a very arbitrary manner, and that
of this rule, and it appears that now a sick American if a lessee fails to pay the fine before the expiration of
juryman may safely resort to a glass of spirits. the fourteen years, his right to the renewal is absolutely confiscated. “So much importance," continue the writers, “is attached to this, that in some cases our THE COMPLAINTS which have been made by the Surrey clients have had painted up in the halls of their houses magistrates against one of the coroners for that county, the date of the year upon which the fine becomes pay. and which were partly gone into before the Lord able." It would seem that this painting up is the Chancellor on Thursday last, will have drawn attention. voluntary act of the occupier ; but it may be suggested to the question of the liability of a coroner to be reas worthy of consideration, in cases where the head moved from his office. The old writ de coronatore lease of a leasehold house contains any unusual exonerando still lies, and has been, on several occasions, or stringent covenants which may be broken by put in force. The 25 Geo. 2, c. 29, s. 6, also provided the occupier, whether it would not be advisable that if a coroner not appointed by annual election or for the lessee, in granting underleases of the house, nomination, or whose office is not annexed to any other to stipulate that a concise statement of these pro. office, “shall be lawfully convicted of extortion or wilful visions shall be constantly kept painted up on the neglect of his duty, or misdemeanor in his office, it shall wall of some frequented part of the premises. For be lawful for the court before whom he shall be so coninstance, suppose the head lease, containing a proviso for victed to adjudge that he shall be amoved from hisre-entry on breach of covenants, also contains a covenant office.” In Ex parte Parnell (1 J. & W. 451), Lord (such as is to be found on some estates where the ELDON held that this statute has not interfered with ground landlord provides the drainage system for the jurisdiction of the Lord Chancellor to remove rain water from the roofs, &c., only) that the lessee, a coroner from his office for neglect of duty.. his executors, administrators, or assigns, will not | More recently the Coruners Act, 1860 (23 & 24 Vict. c. permit any sewage or polluted water to flow into the 116), s. 6, has put elected and nominated coroners upon water drains, it is very advisable to keep this prohibition the same footing, and has expressly provided that “it. constantly before the attention of occupiers, otherwise shall be lawful for the Lord Chancellor, if he shall think the probabilities are that some waste.pipe from a new fit, to remove for inability or misbehaviour in his office lavatory will be connected with the drain which carries any such coroner elected or appointed, or hereafter to off the water from the roof; and a cause of for- i be elected or appointed." The latest recorded case upon feiture may arise. So, also, in leases of shops held this subject appears to be In re Ward (9 W. R. 843), under head-leases containing restrictions as to the where Lord CAMPBELL issued a writ de coronatore exontrades which may be carried on, it would be de erando, after finding, on an investigation of the evidence sirable, in the interest of the original lessee or his before him, that a coroner had attended an inquest in assignees, that these restrictions should be painted up in | a state of intoxication, and dismissed the jury without some frequented part of the premises. If any covenant adequate reason and without swearing them. He held compelling this painting up is already in use in under. that the Act of 1860 gave him no discretion, but obliged leases, we shall be glad to be favoured with a copy him to hear the evidence on both sides. In that case of it.
the coroner had been fined for drunkenness, and the peti
tion for his removal had been presented to the Lord consent not to be upreasonably withheld.” That is to say, Chancellor by the clerk of the peace for the county, by almost the very words used in the proviso for re-entry in order of the Court of Quarter Sessions.
Treloar v. Bigge were, in the recent case, used in the covenant not to assign, Hall, V.O., however, held that, even when so used, the words did not amount to a coven
ant by the lessor not to unreasonably withhold his conCOVENANT NOT TO ASSIGN
sent. “If I were to decide this case," he said, “irrespec
tive of authority, I should hold that the words merely WITHOUT CONSENT.
qualify the obligation contained in the clause not to SINCE Treloar v. Bigge (24 W. R. 843, L. R. 9 Ex. 151) |
assign without consent. They are contained in the lessees' solicitors have very generally inserted in the
lessee's covenant, and are in a form which looks more covenant not to assign without licence the words “such
like a qualification than a contract. The word 'but* licence not being arbitrarily withheld"; whereupon
points to a qualification and not to a contract. It is, lessors' solicitors, not to be outdone, often add, “in case
moreover, unquestionably a very loose way to insert a a respectable and responsible person is tendered," or
lessor's covenant in the middle of covenants by the words to the like effect. The efforts of these zealous and
lessee.” We do not quarrel with this construction, jealous amenders often end in leaving the covenant to
which is convenient and probably in accordance with the assign in a condition which would have caused great
intention of the parties, but we desire to point out that grief to the late Mr. Lindley Murray, In Treloar v.
it is not free from doubt. Practitioners ought to abandon Bigge some provisions of this kind caused some
the use of ambiguous phrases of this kind, and if they embarrassment to the Court of Exchequer. The plain.
wish to qualify the covenant not to assign without contiff covenanted not to assign without the defendant's
sent, should always say, “ provided such consent is not consent in writing, “such consent not being arbitrarily
unreasonably withheld.” withheld"; and in the proviso for re-entry, in which
We are glad to observe that the word “arbitrarily," power was given to the lessor to re-enter on the lessee's
which had a long run after Treloar v. Bigge, is giving assigning without the lessor's consent, the words had
place to “unreasonably," “ Arbitrarily” is too ambigubeen inserted “but such consent is not to be arbitrarily
ous a word to be used in these covenants. It is true that withheld." The question was raised whether these
in Treloar v. Bigge, Kelly, C.B., seems to have satisfied expressions amounted to a covenant by the lessor,
himself that it “means unreasonable-without reasonso as to give the lessee & right of action against
able cause," and that the refusal (unless the context him for arbitrarily withholding his consent. The
shows the contrary) need not be a refusal having refercourt held that they did not.
ence to the character or solvency of the person to whom As regards the words inserted in the covenant not
the assignment is proposed to be made. But it should to assign, we have always thought that there could
be borne in mind that Amphlett, B., expressed considerbe little question that they did not amount to such
able doubt as to the meaning of the word “ arbitrarily," a covenant. The reasonable interpretation of the
and lessees' solicitors will do well to express directly covenant in Treloar v. Bigge seems to be that the
the meaning ascribed to that word by Kelly, C.B. lessee agrees not to assign without the lessor's consent, provided the lessor does not arbitrarily withhold such consent. If the lessor does arbitrarily withhold such consent, then the covenant does not apply, and the CONTRACT TO LEAVE BY WILL. lessee is free to assign. That construction is more con. sistent with the words of the covenant and the intention | The circumstances of the recent case of Alderson v. of the parties than is the construction contended for by Maddison (29 W. R. 105, L. R. 5 Ex. D. 293) are, we the lessee in Treloar v. Bigge. And it is, as Amphlett, I should imagine, of a character not unfrequently B., pointed out, more convenient that the lessee should, occurring. They were as follows:- The plaintiff, as in case the consent of the lessor is arbitrarily withheld, I heir-at-law of an intestate, claimed the title-deeds of the be at once restored to his common law right of assigning. intestate's farm, of which the defendant had taken and be entitled to deal with the property as he pleases. I possession on his death. The defendant counter-claimed than that he should be remitted to a remedy against the a declaration that she was entitled to a life estate in the lessor for withholding his consent. These appear to us farm, and to retain the title-deeds for her life. The jury to be the grounds on which the decision of the court in found that the defendant was induced to serve the Treloar v. Bigge should be rested; we do not attach intestate as his housekeeper without wages for many much importance to the notion stated by Amphlett, B., years, and to give up other prospects of establishment in in his judgment, that the words “such consent not being life, by his promise to make a will leaving her a life arbitrarily withheld,” could not answer two purposes- estate in his farm if and when it became his property. that they could not both qualify the lessee's covenant Mr. Justice Stephen held, first, that the finding, taken and constitute a covenant by the lessor. Why not? It with the facts, amounted to a finding that there was a does not seem difficult to imagine cases in which words contract to the above effect between the intestate and the of this kind might be reasonably interpreted as fulfilling defendant, and that such contract, being based on a good such a double function.
consideration, was binding on the intestate and his estate; The question of the construction of the clause in the and, secondly, that since the contract had been comproviso for re-entry in Treloar v. Bigge~"but such pletely performed on the defendant's part, section 4 of the consent is not to be arbitrarily withheld "-was a good ! Statute of Frauds did not apply, and that the defendant deal more difficult. It was probably correct to hold that, was entitled to the declaration asked in the counter. considering their position and conteact, they were not l claim. The learned judge laid it down that a represensufficiently clear and explicit to constitute a covenant tation which influences the conduct of a person to whom by the lessor not to arbitrarily withhold his consent. it is made, can only be legally efficacious either by way But it is to be observed that Kelly, C.B., said in his of contract or estoppel. The representation may be a judgment that, “had these words been used elsewhere in term in a contract-in other words, it may be a promise, the instrument, although, perhaps, part of the same or it may give rise to an equity, for estoppels of the sort sentence in which they now stand, it is possible there | referred to in Pickard v. Sears (6 A. & E. 469) are really might be a covenant in them.”
in the nature of equities, entitling the party to whom In the recent case of Sear v. House Property Invest- the representation is made to have the rights of the ment Company (Limited) (29 W. R. 192), a lessee cove. parties determined on the basis of the existence of the nanted with a lessor not to assign the demised property | facts which have been represented to exist. In the case without the consent in writing of the lessor, “but such we are discussing the learned judge held that there was
& contract, and it certainly seems to us that the case is holding out of mere hopes and the making of legal one of contract or nothing.
promises. The word “representation,” which has been much Assume that some person, by false representations of employed in support of the plaintiff's contention in cases his testamentary intentions, gets some poor woman to of the class of Alderson v. Maddison, has much to serve him for years gratis, what is the proper attitude of answer for in the history of the law. It is a word that, the law on the subject ? Ought the law to say, “The to our mind, bears a very bad character, and whenever it woman shall not be deceived: the estate of the testator, is used we begin to look with suspicion, lest some fallacy who sailed so near the wind, and used such expressions should be endeavouring to obtain admission. It is as to create in the woman's mind a notion that he was highly desirable that ambiguous expressions such as bound to leave her such and such property, shall be "representation," wandering about for no good purpose, bound as if the will had been executed ?" In our view, should be "comprehended," to use the language of most distinctly and decidedly, that is not the proper ancient Dogberry, and made to deliver themselves of their attitude of the law. The best protection, in our opinion, meaning, if any. A woman acts as a rich old man's for porsons in consimili casu with the woman of our housekeeper for years, or a man marries a rich old man's hypothesis, and also for the heirs and other relations of daughter, in hopes, to use plain English words corres testators, is the distinct understanding that testamentary ponding to the substance of the transaction, that disposition is free, and that contractual obligations must thereafter advantage may accrue to her or him, such hopes be effectuated otherwise than by testament. We do not say being, perhaps, fanned by expressions of future intention that it is possible to hold this in the face of the decisions on the part of the said rich old man. The rich old man to which Stephen, J., refers, and there may undoubtedly dies and disappoints the hopes so entertained, and, be a difficulty with regard to the past, but we cannot thereupon, with what glib promptitude do your "repre help wishing that, with regard to the future, it was sentations" come on the scene! Seriously, we vehemently possible to re-establish the law on this footing. object to vague equities founded on loose expressions like “ representations." Either there is a contract or there is not, and in the latter case there is nothing. And that is what Mr. Justice Stephen has said. But we wish the line could be drawn tighter than he has thought himself CONTINUING SURFACE justified upon the decisions in drawing it. The notion of a
DAMAGE, contract to make a will is full of objections. There is a most dangerous contradiction involved in the idea, It WHERE, as in the usual case, mines of coal or iron-ore may, no doubt, be that if the law did not admit of such have been worked under leases, with liberty to deposit an idea, in some cases wicked testators would avail them. spoil and refuse upon, and to otherwise appropriate and selves of their power of exciting false hopes to do injus | injuriously affect, the surface, subject to paying comtice and wrong; but it appears to us that the evils on the pensation therefor, and where such working has been of other side more than counterbalance this evil. We would long duration and the lease has been successively have the law say, with no uncertain voice, that any person assigned or successive lessees have worked the mines, and seeking to bind a person's estate after his death must in so doing have used the liberty in question, a very conprocure the desired result to be effected by instrument siderable difficulty not uncommonly arises, and is likely inter vivos. Then there would be no room for ambigui- to arise still more often in the immediate future, regard. ties, for difference of intention on the one side and the ing the liability for the damage continuing to arise from other, and, for what is worse, for perjury on the side of the continuance of the refuse heaps and other prejudione party, when the other is unable to give his version of cially affected surface. Does the liability exist, and, if so, the transaction. The truth is that in this class of case against whom? Is it against the working lessee or assigthe testator seldom or never really supposes that he is nee for the time being, or is it a liability that is to be discontracting himself out of his freedom of testamentary | tributed (subject or not to the Statute of Limitations) disposition on the one side, and it is more than doubtful among the successive workers pro rata, necessitating an whether the other party on the other side really supposes inquiry into the proportions in which each has in his own bim to be doing so. The other party really gives the ser. time contributed to the cause of damage? And when vices, or whatever the supposed consideration may be, in the land is sold, may the purchaser (buying, of course, hope, and would give them none the less though there were with notice of the condition of the land) become no shadow of a promise. Neither party has any idea of entitled, as to a right running with his purchase or other. a contract. The notion of a contract to make a will in wise, to any and what remedy in respect of the continuing a particular way seems to us to run counter to the essen. i damage? And when (as must eventually happen) the tial idea of a will, and to its legal characteristics. The working is discontinued, but the refuse-heaps, &c., curious feature of it is that, according to the doctrine, it remain, has the landowner any right (and how is such is immaterial whether the party makes the will agreed right enforceable) to have the surface restored, or to upon or not, because the law will treat his property have damages or compensation for the abiding injury, exactly as if it were made. Consequently there is, in and upon what principle are such damages or compensubstance, a will without any of the formalities required sation assessable ? by the law.
These questions are becoming yearly more urgent, and We anticipate what will be said in answer to this. It the solution of them is not greatly aided by the existing will be urged that in substance the effect of a contract law as that is to be gathered from the authorities. In to make a will in a particular way is that of an instru the Wigan district, we have been credibly informed, ment inter vivos. For instance, a contract to leave a life these questions, or most of them, are now the subject of estate, as in the case which formed our text, is in sub. considerable controversy, and litigation is imminent, if it stance a disposition inter vivos, by which the right to a has not been actually commenced, for their settlement life estate on the death of the owner arises. But we or attempted settlement. We believe that the like answer that the mischief involved in a form not corres questions concern very many other mining centres. ponding to the reality of the transaction is, in law, very The most recent case (and it is not a very recent one) great. It is of great importance that the associations of bearing proximately on the subject is that of Mordue v. ideas which constitute distinct legal entities, should not Dean, &c., of Durham (L. R. 8 C. P. 336), and that case become confused together, because such confusion may be regarded as the leading authority where the leads to confusion, not only of nomenclature, but of question depends (as it usually does) upon title-that is mental intention. The difficulty of discriminating to say, upon the construction of the deed or deeds is obvious, especially when the discrimination has whereby the mines are severed from the surface lands. to take place after the death of one party, between the l And where the question does not depend upon title in the