are destroyed by fire, he must continue paying rent: (see, for instance, Baker v. Holtpzaffell, 1811, 4 Taunt. 45; and Leeds v. Cheetham, 1827, 1 Sim. 146). In Paradine v. Jane (sup.) the lessee was ousted by Prince Rupert and his troops; but the court held that the lessee had to pay rent during the time when he was out of possession. The case of Harrison v. North (1667, 1 Chan. Cas. 83) raised some doubt for a time whether a court of equity would not relieve the tenant in such a case. Although the Lord Chancellor intimated that he would relieve the tenant if he could, the fact whether he did or not does not appear from the report. In that case the lessee appears to have been forced out of possession of the house by the Parliamentary troops, and the house was turned into a hospital for wounded soldiers. But it was subsequently decided that a court of equity would not relieve a tenant from the effect of his own covenant.

When, however, we turn to the question of covenants, the difficulties appear to be much greater. There are very few buildings held by tenants in London, or, indeed, anywhere else in England, that are not held under leases containing express covenants with regard to the repairing of the demised premises. In London, as is notorious, the prevalent custom is for the tenant to undertake very burdensome obligations with regard to repainting, repapering, and generally maintaining the property. As a rule, the tenant in London has bound himself to see to the upkeep of the property, both outside and inside. In many country districts the landlord undertakes the outside repairs. In Ireland, as a rule, the landlord often undertakes to do the inside repairs as well as the outside. But in Ireland tenants are a privileged class.

We shal take the case of the ordinary London repairing lease, where the tenant has entered into covenants to paint the outside twice in seven years, and to paint and repaper the inside once during that period, and, generally, to keep the property repaired and at the end of the term to yield up the premises duly maintained, painted, papered, cleansed, and repaired in accordance with the covenants. Suppose the house be wrecked by a bomb from a German aircraft. Is the tenant liable to rebuild the house and make good the damage done to the premises ?

To answer this question we must turn apparently to cases where the effect of covenants for reparation have been considered in relation to damage occurring through unforeseen accidents. There are a large number of cases where the tenant has been held bound to make good the damage to the premises caused by fire. It will be instructive to consider these cases in their chronological order.

In Walton v. Waterhouse (1647, 2 Saun. 420) the lessee sought to escape liability on his covenant to repair, on the ground that somebody else had rebuilt the house before the action was commenced. The somebody else was, in fact, the lessor. The court held that the plea was bad, and Chief Justice Hale appears to have been incensed with what he regarded as the impertinence of the pleader. The report states that the learned Chief Justice would hear none of the defendant's reasons, saying that he considered that the plea had been put forward in order to trick the plaintiff. The learned reporter (Saunders), who himself had drawn the plea, states that the Chief Justice in a passion gave judgment immediately for the plaintiff.

In Compton v. Allen (1649, Style, 162) an action was brought against a lessee for not keeping the demised house in repair. The defendant pleaded that the house was burnt "by casualty." To this the plaintiff demurred that the plea was bad as being contrary to the defendant's express covenant. Chief Justice Roll said that a lessee who covenanted to repair ought to do it if the house be burnt, be it by negligence or by other means. plaintiff succeeded in the action. The report, however, does not state the terms of the covenant.

The

In Poole v. Archer (1651, 2 Show. K. B. 401) a lease of a house in St. Clement's parish in London, contained what the report describes as "the common covenant for reparations, &c." The house was burnt down, and the following day the lessor entered, afterwards suing the defendant, the lessee, on the covenant. The defendant pleaded that the plaintiff's entry had prevented him from performing his covenant and so the action would not

lie. The court eventually gave judgment for the plaintiff. The headnote to this case states a lessee is liable on a covenant to repair although the house is burned down. This, no doubt, was the effect of the case. But there is nothing in the case to suggest that the covenants for reparation were broken by the burning down. On the contrary, it seems that the covenants were broken previously, and then the house was burnt down, and that the defendant sought to escape liability by reason of the plaintiff entering after the fire.

Probably the clearest case on this question is the case of Bullock v. Dommitt (1796, 6 T. R. 650). In that case the lessee covenanted that he, his executors, administrators, and assigns would, during the term of twenty-one years, when, where, and as often as need or occasion should be and require at his and their own cost and charges, repair, uphold, support, maintain, amend, and keep the house in needful and necessary repair. The house was burned through a fire accidentally starting in an adjoining house. The court held that the lessee was bound to repair. "In the year 1754," said Lord Kenyon in giving judgment, "a great fire broke out in Lincoln's-inn, and consumed many of the chambers, and, among the rest, those rented by Mr. Wilbraham, and he, after taking the opinions of his professional friends, found it necessary to rebuild them." Then, addressing himself to the case before the court, his Lordship continued: "On a general covenant like the present there is no doubt but that the lessee is bound to rebuild in case of an accidental fire; the common opinion of mankind confirms this, for in many cases an exception of accidents by fire is cautiously introduced into the lease to protect the lessee."

In the light of the foregoing authorities it appears hopeless to contend that a lessee could escape from liability to make good the damage caused to a house by hostile aircraft, in the case of an ordinary London lease containing the usual repairing covenants. However unforeseen the cause of damage may be, the covenants are unqualified, and, being unqualified, the principle of Paradine v. Jane (sup.) applies, and the covenantor is bound by the literal terms of his covenant.

Now, how far does the question of insurance against fire affect this question? Many leases, of course, contain covenants by the landlord to insure, or, what is much the same thing, a covenant by the lessee to pay by way of an additional rent the amount of the insurance premiums expended by the lessor. In the usual case it is the lessee who covenants to insure the demised premises. It is a very usual, if not a universal, condition in a policy of insurance against fire that no loss will be paid by the insurance office upon fires occasioned by an invasion, foreign enemies, riot, civil commotion, or any military or usurped power. It is not to be disputed that such a clause in a policy would prevent the office being liable for a fire resulting in explosions from bombs dropped by a hostile aircraft. The fire would have been occasioned by both an invasion and alien enemies. The clause has only been judicially construed in this country in one or two cases, and that many years ago. In 1767 a mob aroge in Norwich on account of the high price of provisions. It destroyed quantities of flour presumably with the intention of reducing the price of that commodity. On the Riot Act being read, the mob dispersed, but afterwards reassembled, and burnt down a malting office. This malting office being insured against fire on a policy containing a clause that the office were not to be liable in case of the premises being burnt by any invasion by foreign enemies or any military or usurped power, the question arose whether the clause protected the office from having to pay for the damage. The court, after expressing doubts on the case, decided that the clause did not protect the office. The grounds for the decision appear to have been that inasmuch as the fire was occasioned by the attack of a common mob, and not through an organised rebellion, the fire could not be said to have been caused by any usurped power: (see Drinkwater v. London Insurance, 1767, 2 Wils. K. B. 363).

In the rare cases of the absence of such a clause it would appear that the office would be liable where fire followed a bomb attack by hostile aircraft. The case of Gordon v. Rimmington (1807, 1 Camp. 123) throws some light on this point. That was a case of a ship insured against fire. The actual terms of the

COMMENTS ON CASES.

Right to Let Down the Surface of Land.

A RULE for the interpretation of Inclosure Acts, when the
right to let down the surface of land by the extraction of
minerals from thereunder comes into question, is afforded by
such cases as Love v. Bell (51 L. T. Rep. 1; 9 App. Cas. 286) and
Butterknowle Colliery Company Limited v. Bishop Auckland
Industrial Co-operative Flour and Provision Society Limited
(94 L. T. Rep. 795; (1906) A. C. 305). They have been explained,
as was said by Lord Justice Swinfen Eady when delivering the
considered judgment of the Court of Appeal in the recent case
of Beard v. Moira Colliery Company Limited (noted post, p. 80 ),
as resting upon the change in the nature of the commoners'
interest by the inclosure. But, as his Lordship went on to remark,
there is no ground for extending any principle which may be
found in those authorities to the construction of deeds. And it
was a deed-the instrument of severance-that had to be
construed in Beard's case (ubi sup.). The question was whether
the clear and unambiguous words which were used in the clause
reserving to the vendor power to enter upon the land conveyed,
for the purpose of working, procuring, and carrying away coal,
"in as full and ample a way and manner as if these presents had
not been made and executed," gave to the parties claiming through
him, any right to let down the surface of the land by working
the minerals. Whether, in other words, "the ordinary pro-
position" that was referred to by Lord Halsbury, L.C. in New
Sharlston Collieries Company Limited v. Earl of Westmorland (82
L. T. Rep. 725; (1904) 2 Ch. 443, note),
"that a person may
do as he likes with his own," sufficed to permit of the letting
down of the surface being hazarded. In the ruling that a
vendor, when reserving the power to work minerals under land
conveyed by him, gains the right for himself and those claiming
through him to let down the surface thereof, the purchaser of
the surface is deprived of his common law right of support.
What was attempted to be established was that the cases relating
to the inclosure of lands by lords of manors had modified and
restricted the meaning to be attributed to the language in
question in the present case. But of the soundness of that
contention the appellants, as we have already intimated, failed
completely to convince the learned judges of the Court of Appeal.
And by affirming the judgment of Mr. Justice Eve on this point,
their Lordships have placed beyond controversy in future the
circumstance that purchasers of lands from which all minerals
have been excepted may have to submit to a possible jeopardy to
the property that they have acquired.

Sale of Ship while Charter-party still Executory.

IF, after entering into a contract of charter-party, a shipowner sells his ship, is the charterer thereupon entitled to say that the shipowner has put it out of his power to perform the contract and that it is thereby dissolved? This was the question which came up for decision last week before Mr. Justice Atkin in Fratelli Sorrentini v. Buerger and Teper (post, p. 83. Oddly enough, considering the mass of shipping cases continually coming before the courts, the point seems to have come up for decision in reference to charter-parties for the first time. The general rule is clear that 66 a promisee cannot be compelled, by the promissor or by a third party, to accept performance of the contract from any but the promissor" (Anson on Contracts, 13th edit., p. 272), and in the case before Mr. Justice Atkin it was strenuously argued that there could be no vicarious performance of the contract as the charterer was entitled to look to the personal and financial standing of the shipowner, and might know nothing of the purchaser. In other words, it was sought to bring a charterparty within the category of contracts where the personal element enters just as it does in a contract for the painting of a picture or the writing of a book. This contention was not accepted by Mr. Justice Atkin, who held that the case fell within the principle of the decisions in British Waggon Company v. Lea (42 L. T. Rep. 437; 5 Q. B. Div. 149) and Tolhurst v. Associated Portland Cement Manufacturers (87 L. T. Rep. 465; 89 L. T. Rep. 196; (1902) 2 K. B. 660; (1903) A. C. 414), and that, as both the original Second Sheet

shipowner and his purchaser were ready and willing to do all that was necessary towards the fulfilment of the contract, the mere fact that the ship had been sold did not preclude the performance of the contract by the original owner through the purchaser, the charterer, however, being entitled to look to the original owner for any breach of contract that might happen. This appears to be the businesslike and common sense view of the matter.

THE CONVEYANCER.

Vendor and Purchaser - Restriction as to Light -
Forcing Doubtful Title on Purchaser.

It was decided as long ago as Greenhalgh v. Brindley (84
L. T. Rep. 763; (1901) 2 Ch. 324) that a contract for the sale of
a house with windows looking over the land of a third person
implies no representation or warranty that the windows are
entitled to the access of light over such land, or even that the
prescriptive period is running, and accordingly that the non-
disclosure of the deed acknowledging that the vendor is not
entitled to that light is no ground for refusing the vendor specific
performance or for allowing the purchaser compensation. That
decision has been followed by the Court of Appeal in the recent
case of Smith v. Colbourne (137 L. T. Jour. 381; (1914) 2 Ch.
533). That was an action for specific performance of an
agreement by the defendant to purchase certain shops
and warehouses, in the east and west walls of one of
which warehouses there were certain windows, which
were not ancient, and which were the subject of agree-
ments with the adjoining owner to brick them up when
called upon, and in default gave such adjoining owners the right
of entering upon the property and blocking up the windows.
These agreements were not disclosed to the purchaser, who
objected to complete the purchase owing to such non-disclosure.
It was held by the judge of first instance that there was such a
doubt as to the operation of the agreements as would prevent
the court from compelling the purchaser to accept the title. On
appeal by the vendors, it was argued on the part of the respon-
dents that the agreements as to light were in substance negative,
and therefore binding on the purchaser, and that the case was
similar to Bewley v. Atkinson (41 L. T. Rep. 603; 13 Ch. Div.
283). That was a case where, when K. in 1814 put out four new
windows, he signed a document that they were put out by leave
of his adjoining neighbour S., and that he would, upon the
request of S., at any time block up the same, and in the mean-
time would pay 6d. a year. The rent was paid down to 1859. In
1865 the plaintiff's predecessor bought K.'s house with notice of
the document. In 1877 S.'s successor required the windows to
be blocked up, and, in default of this being done, built, on his own
land a wall obstructing access of light to the windows. The
plaintiff brought an action to have the wall pulled down, but the
action was dismissed by Vice-Chancellor Hall and by the Court
of Appeal. As pointed out by Lord Cozens-Hardy, M.R. in the
course of his judgment in Smith v. Colbourne, the agreements as
to windows in that case were positive in form, not negative, and
that a purchaser from S. would not be under any liability to
perform the obligations entered into by S. The agreements
could be denounced at any time by S., or persons claiming under
him, and the statute, which had no operation during the
continuance of the agreements, would immediately begin to run.
Lord Justice Swinfen Eady observed in the course of his judg-
ment that, in the case of Bewley v. Atkinson, Lord Justice
James did not, in his opinion, mean that the equitable obligation
to block up was one which a court of equity would enforce
against a new owner of the estate, but only that in such circum-
stances the new owner had no cause of complaint when his
neighbour obstructed the light, and this upon the ground that
the new owner had not under the circumstances acquired any
easement of light. Although, as pointed out by Lord Justice
Pickford in his judgment, there are expressions in the judgments
in Bewley v. Atkinson which, read by themselves, seem to support
the contention that the purchaser would be bound by such an
agreement to do some positive act such as removing the windows,

Oct. 21, 22, 23, and Nov. 12. Counsel: Hughes, K.C.
and Ashton Cross; Tomlin, K.C. and R. F. MacSwinney.
Solicitors: Thompsons, Quarrell, and Jones; Kingsford, Dor-
man, and Co., agents for Smith, Mammatt, and Hale, Ashby
-de-la-Zouch.]

Yorkshire

By a settlement dated in Sept. 1885 C. and her mother con-
veyed (inter alia) a freehold house in Yorkshire upon trust to sell
and hold the proceeds on trust for the mother for life and on her
decease for C. absolutely, with power to postpone such sale.
The settlement was duly registered under the Yorkshire
Registry Act 1884. The plaintiffs lent a sum of money in con-
sideration of C. mortgaging to them her reversionary interest
under the settlement on the 11th Jan. 1892. On the 14th Jan.
1892 the plaintiffs gave notice of the mortgage to the trustees
of the settlement, but did not register the same under the
Act of 1884. On the 1st Jan. 1895 C. mortgaged her reversion
in the freehold house which was still unsold. On the 3rd June
1897 the mortgagee transferred that mortgage to A. On the
25th July 1903 A. conveyed it, acting under the power of sale
contained in the mortgage deed, to L., subject nevertheless to
the life estate of the mother of C. under the settlement. This
mortgage, together with the transfer to A. and the conveyance
to L., were all duly registered under the Act of 1884, and were
only entered into after a search had been made in the registry
and without notice of the plaintiffs' mortgage. Notices of
each of these three deeds were also sent to the trustees of the
settlement. On the 21st Oct. 1912 the mother of C. died, and
on the 10th April 1913 the plaintiffs brought a foreclosure
action against C. and L, and subsequent mortgagees of other
portions of the settled property, claiming (inter alia a declara-
tion that their security upon the freehold house, or the proceeds
of sale thereof, had priority over the claim of L, whose
conveyance had been registered under the Act of 1884,
and who claimed priority under sects. 4 and 14 of that
Act. It was decided by Astbury, J. (137 L. T. Jour. 133)
that the principle of Arden v. Arden (52 L. T. Rep. 610; 29
Ch. Div. 702) applied; that the plaintiffs' mortgage was not
registrable under the Act of 1884; and that they had obtained
priority by their notice to the trustees of the settlement.
L. appealed.

Held, that the decision of Astbury, J. was quite right. Appeal
dismissed.

[Gresham Life Assurance Society v. Crowther. Ct. of App.: Lord Cozens-Hardy, M.R, Kennedy and Swinfen Eady, L.JJ. Nov. 23.-Counsel: Percy Wheeler; Hon. Frank Russell, K.C. and O. R. A. Simpkin. Solicitors: Jaques and Co., agents for Massey and Co., Bradford; Devonshire, Monkland, and Co]

Will-Construction of legal Devise-Strict Settlement-Compendious Form.

A testator devised his real estate "unto and to the use of every son of mine and his issue male in succession so that every elder son and his issue male be preferred to every younger son and his issue male, and that my grandsons respectively with their respective issue male take in succession according to their respective seniorities, and so that every such son and every such grandson who shall be begotten in my lifetime take an estate for his life without impeachment of waste with remainder to his first and every subsequent son successively according to seniority in tail male, and that every such grandson who shall be begotten after my decease take an estate in tail male." The plaintiff was born in the lifetime of the testator, who died on the 27th Jan. 1879. The eldest son of the testator succeeded to the estate and. died on the 22nd Aug. 1913 without having executed any disentailing assurance, and leaving his only son, the plaintiff, as his successor. It was decided by Astbury, J. (137 L. T. Jour 213) that the initial words of the devise were not, as in Re Simcoe; Vouler Simcoe v. Vowler (108 L. T. Rep. 891; (1913) 1 Ch. 552), intended to confer any estate at all on the first taker, but were merely introductory to the rest of the clause; and that therefore the plaintiff's father took an estate for life and the plaintiff, being a grandson begotten in the testator's lifetime, took for life only. The plaintiff appealed.

Held, that, giving to the language used by the testator the meaning that he obviously intended it should bear, the conclusion arrived at by the learned judge in the court below was right. Appeal dismissed.

[Re Lord Lawrence; Lawrence v. Lawrence. Ct. of App.; Lord Cozens-Hardy, M.R., Kennedy and Swinfen Eady, L.JJ. Oct. 30, Nov. 2 and 21.-Counsel: Maugham, K.C. and W. A. Greene; Hon. Frank Russell, K.C. and Edward Beaumont ; Dighton Pollock. Solicitors: Dunderdale, Dehn, and Co.; Ranken Ford, Ford, and Chester.]

HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Charity-Bequest of Residue-Interest in Land-Debentures— Australian Company-London Office" Real and personal Property charged-Mortmain and Charitable Uses Act 1888 (51 & 52 Vict. c. 42).

A testator left the residue of his estate upon trust, in the events which happened, as to so much of the trust premises as might by law be applied for charitable legacies for the Sussex County Hospital and another charity. The estate of the testator at his death included certain debentures in two companies which owned land in Australia; by the debentures, which were similar in both cases, the companies charged all "real and personal property for the due payment of the money secured by the debenture." Neither company owned any land in England, but in each case the company occupied an office in the City of London for the transaction of its business; in one case the company held the premises upon a tenancy for years at rack rent, and in the other there was no evidence as to the nature of the tenancy. From the evidence it appeared that neither the Mortmain and Charitable Uses Act 1888 nor the earlier statutes affecting the power of devising land to charities had any application in Australia. The testator died on the 6th Feb 1891, and therefore the Mortmain and Charitable Uses Act 1891, which came into force on the 5th Aug. 1891, had no application. The trustees of the testator took out the present summons for the determination of the question whether the debentures in the two Australian companies, forming part of the testator's estate, could validly be given by his will for charitable purposes.

Held, that the debentures in question were mixed personalty, and that, although the interest in land charged by the debentures was very small, the case could not be distinguished on this ground, and the debentures could not pass to charities, but belonged to the personal representatives of the testator.

[Re Dawson; Pattison v. Dawson. Ch. Div.: Neville, J. Nov. 12 and 18.-Counsel: S. H. Sampson; J. G. Butcher K.C. and J. M. Paterson; A. F. Peterson, K.C. and O. R. Simpkin; C. E Jenkins, K.C. and M. Beebee. Solicitors: Hores, Pattisson, and Bathurst; Clarke, Calkin, and Sons, for Howlett and Clarke, Brighton; Oliver and Lyall.]

Cinematograph-Pictures shown to prospective Customers of Films Licence for Premises Compliance with Regulations under Act-Necessity of-Cinematograph Act 1909 (9 Edw. 7, c. 30), s. 1.

This was an action brought by the Attorney-General at the relation of the London County Council to determine whether the word "exhibition" in sect. 1 of the Cinematograph Act 1909 should be construed to include such a demonstration as was given by the defendant company for the purpose of selling or renting films. The defendant company occupied the ground floor and basement of premises in London, with five floors above them occupied as offices. In the basement was what they called a projection room, which was used by them for running films through the apparatus for the purpose of showing them to prospective customers. These displays were held regularly two days a week and were advertised in the cinematograph trade papers, care being taken to exclude any member of the public who was not a prospective customer. Sect. 1 of the Cinematograph Act 1909 provided that: "An exhibition of pictures or other optical effects by means of a cinematograph, or other similar apparatus, for the purposes of which inflammable films are used, shall not be given unless the regulations made by the Secretary of State for securing safety are complied with, or save as otherwise expressly provided by this Act, elsewhere than in premises licensed for the purpose in accordance with the provisions of this Act." The regulations made by the Secretary of State dealt with places of public entertainment only.

Held, that, though sect. 1 of the Cinematograph Act 1909 was in very wide terms and at first sight would appear to include any exhibition of films, it was clear, reading the whole Act, that it wasnot intended to apply to the office or warehouse of a dealer in the case of his running films through machines, so some restriction must be put on the meaning of the word "exhibition "; that the statute aimed at the safety of the public at cinematograph exhibitions, and ought to be construed as referring to places of public entertainment and as not including the case where a dealer in the bona fide exercise of his trade. of selling or renting out his films merely runs the films through machines whether in the presence of one or more customers.

[Attorney General v. Vitigraph Company. Ch. Div.: Astbury, J. Nov. 19.-Counsel: Sir Charles Macnaghten, K.C. and F. F. Daldy; R. Younger, K C. and Alec Neilson. Solicitors for the relators, Edward Tanner; Crowders, Vizard, Oldham, and Co.]

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