Page images

has been improved by successive statutes and rules, at least as much as the jurisdiction has been amplified; and has been further improved and codified by the new rules which have just come into operation.

Mr. Morris, the author of the “Lectures" above mentioned, has accordingly also seized the occasion furnished by the opening of the Admiralty Court, to give, though in an unpretending form, as thorough and broad an elementary view of its jurisdiction and practice as can be found in our library for any department of English law. There is no gate through which the first entrance into this branch of study may be better made; and, by steadily keeping the end in view, Mr. Morris has managed not to leave his readers at the gate, but to conduct them by a short walk some distance along the path; and, if the extended jurisdiction of the Admiralty is not soon brought into fuller play, there will not be the excuses which a close court, and an almost unknown region of law, have hitherto furnished with more or less of legitimacy.

In fact, we have now realized that competition between the Admiralty and the superior courts of common law and equity, which Sir Leoline Jenkins declared to be his desire, and contended for with very imperfect success. To attract suitors by the balance of convenience is a noble rivalry; and we agree with Mr. Morris in thinking, that the competition should be allowed on a still larger number of points; and particularly that so much concurrent jurisdiction should be given to the Admiralty, as to enable it to do complete justice in every matter of which it may now become partially possessed, without sending the parties to a second litigation elsewhere. We draw attention to Mr. Morris's suggestions on this point at p. 34, to which we will add this remark in conclusion :- We are altogether at sea upon the relative merits of judges and juries, of written and oral evidence, and on many other questions. Every commission, every opinion of high professional authorities, has so far only worse confounded the confusion. Probably different treatments are best adapted to different kinds of causes. But whether this is so or not, only the public can decide; therefore, even those who could not consent to a competition of courts as a permanent system, may reasonably desire it as a means of eliciting the public judgment on each several class of legal business.



The Act to Amend the Law of Property and to Relieve Trustees

(22 & 23 Vict. c. 35); with Introductions and Practical Notes. By SYLVESTER J. HUNTER, Esq., of Lincoln's Inn, Barrister-atLaw. London: Butterworths, 1859.


UR readers have no doubt long before this made themselves

acquainted with the contents of this Act, which they must have found to work a greater alteration in the law of real property, and the practice of conveyancing, than any that has received the sanction of the Legislature for several years. We propose in this article to treat briefly of the policy which dictated the enactments contained in each group of sections, and of the particular forın adopted to carry out the intended amendments.

Two courses of procedure appear to be open to the jurist who seeks to remove defects admitted to exist in a system so vast and complicated as the English law of property. He may, if he please, propose to abolish the whole, or an important part of the existing law, and enact a series of provisions which will not be obnoxious to the charges whereby the old system has been brought into disrepute. Instances of the successful adoption of this course are not wanting in the history of jurisprudence; but in England it has been more usual to search out the principles of the existing law, whence spring the evil results, and to apply a remedy by removing or modifying just so much as may be absolutely necessary to effect the contemplated purpose. We have no intention at present of discussing the respective merits of these two courses ; it is sufficient to say that the framer of the Act now before us has adopted the latter, and we may congratulate the profession and the public on the result arrived at.

We now proceed to examine successively the various groups of sections of which the Act is composed

1. LEASES, (Secs. 1-3.)- It is probable that every student of English law has, like Sir James Mansfield, “ always wondered at the rule in Dumpor's Case" (4 Taunt. 736); it meets him at almost the first page of his Smith's Leading Cases, and he will not stand alone, if, long after the time of his call to the Bar, or his admission as an attorney, he be obliged to confess that he does not understand it. Such students may be grateful to the Legislature which, after many years' consideration, has at length materially curtailed the operation of this most oppressive and irrational rule; and landlords, tenants, builders, and all others who have dealings with leasehold property, will be glad to find that now their intentions can be carried into effect, without the risk of entailing upon themselves a train of unforeseen and ruinous consequences. It must be observed, however, that the Act in no way affects the vexatæ quæstiones, whether the rule extends to covenants as well as to conditions (see 12 Ves., 191; & 2 Platt on Leases, 270), and whether it extends to a waiver of a past breach as well as to a licence of one that is contemplated (see 4 Taunt. 735). Whatever the law on these points may

ormerly have been, it remains unchanged; moreover, the act does not apply, as is pointed out by Mr. Hunter in his edition mentioned at the head of this article (p. 12), to cases where a licence is given for an act, the licensing of which is not contemplated by the lease.

Lord St. Leonards, indeed, did intend to provide for all these cases by a section which followed the first two sections, but

The alteration in the law which has been effected by these sections, was advocated by the Real Property Commissioners in their Report of 1832, (3rd Rep., p. 49.) The legislature, therefore, has taken sufficient time to consider of the propriety of the alteration.

which, for some inexplicable reason, was struck out in the House of Commons. This section ran as follows :

“ Where

any actual waiver of the benefit of any covenant or condition in any lease, on the part of any lessor, or his heirs, executors, administrators, or assigns, shall be proved to have taken place after the passing of this Act, in any one particular instance, such actual waiver shall not, unless a contrary intention appear, be assumed or deemed to extend to any instance, or any breach of covenant or condition other than that to which such waiver shall specially relate, por to a general waiver of the benefit of any such covenant or condition.”

Mr. Hunter has also suggested (p. 14) another case, in which it seems the Act fails to effect the entire abrogation of the obnoxious rule, but it is one which can but rarely occur.

2. INSURANCE OF LEASEHOLDS, (Secs. 4—9.)- The next group of sections which we have to consider, relates to the effect of accidental breaches of covenants to insure leasehold property. Under the old law, the slightest deviation from the prescribed course was followed by liability to a total loss of the whole property; and when we consider the immense value of the interests held under leases in this country, and the certainty that in the course of numerous transactions, every accident and mistake will occur of which the occurrence is possible, it is not surprising that the old state of the law upon this subject should long have been felt to be a grievance. At the same time we cannot but think, that, in the absence of a legislative enactment, a due regard to the rights of landlords justified the rule observed by courts of equity, of not relieving against a forfeiture incurred by breach of a covenant to insure.

In framing a provision to meet this evil, it was necessary, on the one hand, to guard the landlord against even the risk of loss through fraud or negligence; and, on the other hand, to protect the honest purchaser and the honest tenant from incurring ruinous loss through mere accident or mistake. The Legislature, however, seems to have been only partially successful in carrying out these objects by the provisions contained in the present statute; for though Courts of Equity have now the power of relieving from the consequence of any first offence against a

[ocr errors]

covenant for fire insurance, whenever the breach has arisen through accident or mistake, and has not occasioned any loss; yet, as was pointed out in our last Number (ante, p. 191), a purchaser cannot, in all cases, safely rely upon sect. 8 as giving him a title not liable to be defeated by reason of any past breach of a covenant of this nature.

3. RENT-CHARGES AND JUDGMENTS, (Secs. 10-11.)-Under this head we meet with a rule of law which often prevented beneficial dealings with property, while it never effected any good purpose, and rested on no tenable basis. This rule was, that certain legal rights over land being considered contrary to the “policy of the law,” every excuse was to be taken hold of for the purpose of destroying them. It was from this rule that the doctrine sprung, which teaches that a right of entry for nonpayment of a rent-charge, and a right to take the lands of a judgment-debtor, under an elegit, are indivisible; and, therefore, if they be given up in part they are given up altogether. This rule is now abolished, and a rent-charger or judgment-creditor releasing part of the land, need no longer fear any unnatural effect being given to his act.

It may be doubted whether the rule now repealed had any effect on equitable rights: if not, its importance was considerably diminished by sec. 13 of the statute 1 & 2 Vict. c. 110, whereby the remedies of judgment-creditors were extended, and by the now common practice of securing rent-charges by limiting a long term of years to trustees for the rent-charger; at the same time, the books of precedents sufficiently testify to the trouble caused to conveyancers, by the constantly recurring necessity of carrying out the wishes of their clients in spite of the rule.

Under sec. 10, however, there cannot be a complete release of a rent-charge, unless all the persons interested in the land concur in the release ; for by the Act the rights of persons not concurring are saved, and consequently the released land would remain subject to a suit by them for apportionment; and with regard to

! See Hunter, p. 33.

« PreviousContinue »