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Sales by Auction.

SALES BY AUCTION FOR THE YEAR 1912.

Messrs.

DEBENHAM, TEWSON, RICHARDSON,

and CO. beg to announce that their SALES for 1912 of ESTATES. Investments, Town, Suburban, and Country Houses, Business Premises, Building Land, Ground Rents, Advowsons, Reversions, Stocks, Shares, and other Properties will be held at the Auction Mart, Tokenhouse-yard, near the Bank of England, in the City of London, as follows:Tuesday, June 4 Tuesday, June 11 Tuesday, June 18 Tuesday, June 25 Thursday, June 27 Tuesday, July 2 Thursday, July 4

Tuesday, July 9
Thursday, July 11

Tuesday, July 16

Tuesday, Oct. 8
Tuesday, Oct. 15
Tuesday, Oct. 22

Thursday, July 18
Tuesday, July 23

Thursday, July 25
Tuesday, July 30

Tuesday, Oct. 29 Tuesday, Nov. 5 Tuesday, Nov. 12 Tuesday, Dec. 3. By arrangement, Auctions in Town or Country can also be held on other days. Messrs. Debenham, Tewson, Richardson, and Co. undertake Sales and Valuations for Probate and other Purposes of Furniture, Pictures, Farming Stock, Timber, &c.

Detailed

Lists of Investments, Estates, Sporting Quarters, Residences, Shops, and Business Premises to be Let or Sold by Private Contract can be obtained of Messrs. Debenham, Tewson, Richardson, and Co., No. 89, Cheapside, London. Telephone, Nos. 503 and 504 Bank.

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Nos, 37, 39, 41, 41A, 43, and 45, ACRE-LANE, having a frontage thereto of about 176ft.; the land extends through to Sudbourne-road, to which it has a frontage of about 114ft., with an area of 24 acres, and there are six residences, mostly let on short tenancies, producing £188 per annum. Nos. 17, 19, 21, 23, 27, 29, 31, and 33, ACRE-LANE, comprising eight residences, mostly let on short tenancies, and producing £380 per annum, with large gardens, and capable of further development.

Also

FREEHOLD GROUND RENTS
amounting to

PER £181 10s. ANNUM,

Well secured upon Fourteen Residences, situate and being
Nos. 25, 71, and 73, ACRE-LANE; Nos. 1, 39. and 41,
BRIXTON-HILL, Nos. 1, 36, 38, and 40, BRANKSOME-
ROAD: Nos. 43. 45, and 47. SUDBOURNE-ROAD; and

Solicitors' Benevolent Association.

INSTITUTED 1858.

For the Relief of Poor and Necessitous Solicitors and Proctors in England and Wales and their Wives, Widows, and Families.

Fifty-second ANNIVERSARY FESTIVAL of the Solicitors' Benevolent Association, on THURSDAY, the 6th JUNE 1912, at THE LAW SOCIETY'S HALL, CHANCERY LANE, LONDON, at 7.30 o'clock p.m., the President of the Law Society (W. J. HUMFRYS, Esq. in the Chair.

LIST OF STEWARDS.

R. ELLETT, Esq. (Cirencester), Chairman.
Sir THOMAS BERRIDGE, London.
E. A. BONNOR-MAURICE, Esq., London.
G. HOLME BOWER, Esq., London.
S. P. B. BUCKNILL, Esq., London.
WALTER CHEESMAN, Esq., Hastings.
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CHARLES GODDARD, Esq.. London.
L. GOLDBERG, Esq., London.

J. R. B. GREGORY. Esq. London.

T. ROTHWELL HASLAM, Esq., London.
L. W. NORTH HICKLEY, Esq.. London.
HERBERT HUNTER, Esq., London.

RICHARD S. TAYLOR, Esq. (London), Deputy-Chairman.
Sir HENRY J. JOHNSON, London.

W. G. KING, Esq., London.

CLAUDE LEATHAM, Esq., Wakefield.
HARRY R. LEWIS, Esq, London.
O. G. MAY, Esq., London.
G. MOSLEY, Esq., Derby.

R. A. PINSENT, Esq., Birmingham.
R. H. PURVES. Esq., London.
THOMAS RAWLE, Esq., London.
J. E. W. RIDER. Esq, London.
CHARLES L. SAMSON, Esq., London.
W. ARTHUR SHARPE, Esq.. London.
Sir T. SKEWES-COX, J.P., Richmond.
JOHN R. SYMONDS, Esq., Hereford.
R. W. TWEEDIE, Esq.. London.

W. MELMOTH WALTERS, Esq., London.
W. M. WOODHOUSE, Esq., London.

The Secretary will be happy to hear from members of the Profession who may desire to add their names to the above List of Stewards.

Donations and Subscriptions to be included on the Festival List will be gladly received.

2,

Dinner Tickets (258.) may be obtained of the Stewards, or at the Offices of the Association,
Stone-buildings, Lincoln's-inn, London, W.C.
THOMAS GILL, Secretary.

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reversions URCH-ROAD, BRIXTON: some having early A GENERAL INDEX to the SECOND TEN

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MENUS for EVERY
DAY of the YEAR.

With over 800 Recipes.

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In this useful book the menus are arranged chronologically, a page being devoted to each day, and comprise breakfast, luncheon, dinner, and servants' dinner. Following this are over eight hundred recipes of certain special dishes included in the menus.

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REEVES AND TURNER,

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WANTED TO PURCHASE. by the most eminent legal authorities. 13 per Volume OFFERED for the first Vols. 1897-1903. £3 10s. copies to hand of the Second Edition, including FORMS AND JUSTICE OF THE PEACE, WEEKLY REPORTER, PRECEDENTS. 15 vols. 1906-1909. £12. ENCYCLOPÆDIA OF FORMS AND PRECEDENTS, by UNDERHILL. 17 vols. 19021909. £17 17s.

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Charta to 1910. 18 vols.

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A Book on the leading question of International Policy and
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THE DECLARATION OF LONDON,

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An account of a hunting cruise among the Kurile Islands in quest of the sea otter, with details as to the method of hunting employed, and particulars of the animal's haunts and habits.

HORACE COX. "Field" Office, Windsor House, Bream'sbuildings, London, E.C.

LEGAL & GENERAL

LIFE ASSURANCE SOCIETY.

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UPHELD BY THE COURTS.

Volume XVII. of Lord Halsbury's "Laws of England" was published in July 1911. On pp. 483, 484, the learned contributor The Right Hon. Arthur Cohen, K.C.-deals with the question, whether, in determining a case of constructive total loss, the assured is entitled to add to the cost of repairs the value of the wreck, and submits that, in a case governed by the Marine Insurance Act 1906, "the value of the wreck ought not to be taken into account."

IN THE KING'S BENCH DIVISION.
Dec. 12, 13, 14, and 19, 1911.
(Before BRAY, J.)

HALL V. HAYMAN.

(Headnote of the case as reported in [1912] 2 K. B. 5.) "The law laid down by the House of Lords in Macbeth and Co. v. Maritime Insurance Company [1908]· A. C. 144) is altered by sect. 60, sub-sect. 2 (ii.), of the Marine Insurance Act 1906. In determining whether a ship, which is seriously damaged by perils insured against, can be treated as a constructive total loss within the meaning of that enactment, the assured is not entitled to add the value of the wreck to the cost of repairs."

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46

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CONTENTS

REPORTS.

468

HOUSE OF LORDS. ECCLES PROVIDENT INDUSTRIAL COOPERATIVE SOCIETY T. GRIFFITHS. -Provident society - Nomination by member-Limit of amount 465 HARGREAVE C. HAUGHHEAD COAL COMPANY. Employer and workman Accident in course of employment. JUDICIAL COMMITTEE OF THE PRIVY COUNCIL. KHOO SIT HOH AND OTHERS v. LIM THEAN TONG.-Evidence-Duty of Court of Appeal-Findings of trial judge based on verbal testimony... 470 SUPREME COURT OF JUDICATURE. COURT OF APPEAL. LEVER BROTHERS LIMITED MASBRO' EQUITABLE PIONEER SOCIETY LIMITED. -- Passing off Substitution of goods

V.

STANDING . EASTWOOD AND Co. Employer and workman-Accident Compensation Barge mate's claim-Payment for some time..... CHANDLER v. GREAT WESTERN RAILWAY COMPANY. - Employer and workman - Injury by accident Compensation-Cut finger.

PEEL. WILLIAM LAWRENCE AND SONS LIMITED.

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472

OCCASIONAL NOTES...

PARLIAMENTARY

PRACTICE

AND

477

CONSTITUTIONAL

LAW Topics

-Parliamentary Summary.

88

IRISH NOTES..

89

INTERNATIONAL,

FOREIGN, AND

479

COLONIAL LAW

Marriages in

Japan

89

Employer and

GENERAL

workman - Injury by accident Compensation

and City Courts

482

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Compensation to

MANKS . WHITELEY.-MortgageReconveyance and new mortgage-No notice of intermediate charge -Priorities-Merger of charge.. LONDON GENERAL OMNIBUS COMPANY LIMITED v. HOLLOWAY.- - Suretyship-Guarantee given for fidelity of servant

HIGH COURT OF JUSTICE. CHANCERY DIVISION. Re HOBSON; BARWICK v. HOLT.-Will -Construction-Gift to a number of named persons for their lives...

INTELLIGENCE.

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Committee :

Dinner-Heirs-at-Law and Next of Kin Appointments under the Joint Stock Winding-up Acts -Creditors under Estates in Chancery Creditors under 22 & 23 Vict. c. 35

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LAW SOCIETIES.-Barrister' Benevo-
lent Association: Annual Meeting
Medico-Legal Society: Work-
man's Compensation Act..
LAW STUDENTS' JOURNAL.-The Law
Society: Preliminary Examination
May 1912- London University:
Great Trials of History; The Trial

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490

of Kepler's Mother for Witchcraft 94 PROMOTIONS AND APPOINTMENTS ...

98

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94

94

COURT PAPERS. High Court of

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The Law and the Lawyers.

Business in the King's Bench.

MR. JUSTICE BRAY, in charging the grand jury at Huntingdon this week, expressed the hope that the Government would see their way to fill the two vacancies in the King's Bench Division, because, as he pointed out, there were still arrears, and the sooner the appointments were made the better it would be for the administration of justice. The state of the cause lists at the end of the sittings which have just terminated show that common jury actions set down in the middle of March and non-jury actions at the beginning of April are still untried, while the fact that the special jury list only dates back to the middle of April is largely due to the fact that several heavy actions are standing over until next sittings. The Civil Paper arrears go back to the beginning of March. In the coming sittings, if the staff of judges is maintained at its reduced strength, very little progress can be looked for, inasmuch as the circuits commence next week and a large proportion of the judges will be absent from London until the Long Vacation.

Notes of Evidence on Appeal.

WE are glad to see that Lord Justice VAUGHAN WILLIAMS has again drawn attention to the unsatisfactory state of the practice with regard to the use of the judge's notes and shorthand notes on the hearing of appeals. Apart from patent and certain analogous cases, he pointed out that the old Common Law practice still prevailed, that the Court of Appeal should use

only the judge's notes of the evidence at the trial, but that the parties had no right to see those notes before the case came on to be argued. Such a practice is both inconvenient and undesirable, and we quite agree with the learned Lord Justice that it is a grave mistake that the parties are not allowed to have copies of the judge's notes. In all courts, as at present in the Divorce Court, there should be an official shorthand writer, a copy of whose notes every litigant should be entitled to have at a reasonable price; for this system has proved exceedingly useful in the only division in which it obtains, and it certainly ought to be extended to all the other branches of the High Court.

Judges and Criticism.

ONE does not expect to find in the observations made in an after-dinner speech the care and circumspection which is forthcoming on more formal occasions, bnt the observations of Mr. Justice AVORY, as reported in the Press, at the dinner of the Law and City Courts Committee of the Corporation of London were both indiscreet and injudicious. So long as a judge holds his position it is eminently necessary that by act and word he should maintain a position of strict impartiality and give no cause for any suggestion of any appearance of prejudice. No doubt the objectionable criticism that has sometimes been passed quite unjustly upon some of our judges must raise a strong feeling of personal resentment, but it has hitherto been the invariable practice of judges so maligned to treat such criticism with the contempt it deserves, knowing full well that their strongest defence lies in the full support of public opinion.

The Suffragist Trial.

AFTER a lengthy and impartial trial the jury at the Old Bailey came to the only possible conclusion and found all the accused guilty. Having regard to the attitude adopted by the defendants, it cannot be said that the sentences imposed erred on the side of severity, and, however much one may sympathise with the desire of those who wish to see the franchise extended to women, the conduct of those who have now been made to feel the strength of the law can in no way be defended. It is certainly satisfactory that the principal instigators have been brought to book, their conduct being far more worthy of punishment than that of the rank and file of the women they incited to commit the acts of violence.

STAMP DUTIES ON VOLUNTARY TRANSFERS. THE new stamp duty which is the subject of this article was imposed by sect. 73, sub-sect. 1, of the Finance (1909-10) Act 1910. This sub-section runs as follows: "Any conveyance of transfer operating as a voluntary disposition inter vivos shall be chargeable with the like duty as if it were a conveyance or transfer on sale, with the substitution in each case of the value of the property conveyed or transferred for the amount or value of the consideration for the sale."

The term "conveyance or transfer" is nowhere actually defined either by the Stamp Act of 1891 or the Finance Act of 1910. The latter Act does not attempt a definition, while the nearest approach to one that can be found in the Act of 1891 is contained in sect. 62, which runs as follows: "Every instrument and every decree or order of any court or of any commissioners whereby any property on any occasion except a sale or mortgage is transferred to or vested in any person is to be charged with duty as a conveyance or transfer of property." A very similar description of a conveyance is given in sect. 54, which refers to conveyances for value. It is quite clear, however, that the term includes a great deal more than merely the documents which

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are known to conveyancers by the names of conveyances or transfers; for instance, it doubtless includes an assignment of a lease, and the case of West London Syndicate v. Inland Revenue· Commissioners (77 L. T. Rep. 797; (1898) 1 Q. B., at p. 240) hasdecided that it includes a declaration of trust. The Commissioners of Inland Revenue hold-quite rightly, it is submitted -that it includes an appointment under a general power of appointment, but they say that it does not extend to an appointment under a special power. There is a great deal to be said for the fact that if an ad valorem duty of £1 per cent. had to be paid on the exercise of a special power of appointment it would be a very appreciable hardship, and the opinion of the commissioners is one of considerable practical convenience, but, at the same time, it is difficult to see how such an appointment is not an instrument" whereby property is "vested in any person." The question of a lease is one of more difficulty—the assignment of a lease is certainly a conveyance or transfer," and, that being so, there seems, at any rate, some grounds for saying that the lease itself comes within that category; but in the scheduleto the Stamp Act of 1891, under the heading "Lease," it is stated that under certain circumstances a lease has to be stamped "as if it were a conveyance or transfer, so that this seems to imply that a lease is not within the definition. At any rate, the Somerset House authorities do not claim the duty at £1 per cent. on the voluntary granting of a lease.

66

Previously to the passing of the Finance Act of 1910, conveyances or transfers were stamped, under sect. 1 of the Stamp Aet of 1891, according to which of the following four classes they happened to fall into, for (1) conveyances or transfers, whether on sale or otherwise, of stock of the Bank of England or of certain colonial Governments were chargeable in the former case at the fixed rate of 7s. 9d., and in the latter case at the rate of 2s. 6d. per £100; (2) conveyances or transfers on sale of any property, except as aforesaid, paid duty at the rate of 10s. per £100; (3) conveyances or transfers of any property, except as aforesaid, by way of security, which included mortgages, transfers, &c., paid a small duty, seldom exceeding 2s. 6d. per £100; and (4) all other conveyances paid a fixed duty of 10s. This being so, sect. 73 of the Finance Act 1910 provided that "The stamp duties chargeable under the heading Conveyance or Transfer on Sale of any Property '" (clearly those only in the class secondly above mentioned) "shall be double those specified in the schedule" to the Stamp Act; and sect. 74 as set out above enacts that any conveyance or transfer operating as a voluntary transfer inter vivos shall be stamped as if it was a conveyance or transfer on sale.

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The Commissioners of Inland Revenue take the view that under these circumstances the meaning of sect. 74 above mentioned is that all conveyances or transfers of any sort which operate by way of voluntary disposition have to be stamped as if they were conveyances or transfers for value of the particular kinds which fall within the second class above mentioned. It is quite obvious that conveyances or transfers on sale of some species of property-for instance, stock of the Bank of England' and also conveyances or transfers by way of security when for value-do not come within this second class at all, and it is submitted, although with some doubt, that the true meaning of sect. 74 is simply that every document which carries out a gift has to be stamped in the same way as a document which carries out a sale of the same property.

If this is not so, a transfer of mortgage, to take an example, is stamped at the rate of 6d. per cent. if the transfer happens to be for value, and at the rate of £1 per cent. if not. That is to say, when the transaction happens to be a gift the document is. stamped as if the transaction were a "transfer on sale," and. when the transaction actually happens to be a sale of the security the document is stamped as something else. Moreover, in this case the Legislature must be presumed to have described the same thing in two different ways in two different sections of the same Act.

In estimating the amount of the consideration on which in the case of a transfer for value the stamp duty has to be paid, any mortgage or charge to which the property sold is subject has under sect. 57 of the Stamp Act of 1891 to be added to the amount actually paid. That is to say, if property subject to a

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mortgage for £400 is sold for £200, then stamp duty has to be paid on £600, the aggregate of the two sums; and sect. 74 of the 1910 Act provides that, in the case of the ad valorem duty which has to be paid on voluntary transfers, the value of the property transferred shall be substituted for the amount or value of the consideration for the sale; on this authority the Commissioners of Inland Revenue are only claiming stamp duty in this case on the net value of the property after deducting the mortgage. course, as a matter of fact, if, in the case above, the property had been given, the value of the gift was only £200, but, at the same time, sect. 74 provides that a conveyance or transfer operating by way of voluntary disposition shall be liable to the like stamp duty as if the property has been sold, and it is certainly submitted that a volunteer obtains just as much interest in the property as would a purchaser in this case. More than that, sect. 57 of the Act of 1891 was undoubtedly passed with the object of protecting the Revenue, and, in the case above, when the purchaser has paid off the mortgage he has paid £6 2s. in duty, being £1 per cent. on £600 and 6d. per cent. on £400, while, if the view of the commissioners is right, a volunteer in doing so would obviously have only paid £2 2s.

In order to prevent the very obvious method of avoiding the new stamp duty by inserting in the deed of gift a very small consideration and then stamping the document as a transfer on sale for that amount, the same sect. 74 goes on to provide in sub-sect. 5 that any document shall be liable to the new voluntary transfer duty where, because of the inadequacy of the consideration or for any other reason, in the opinion of the commissioners a substantial benefit accrues to the grantee. It is on this subject that the only case yet decided with reference to this duty-Re Weir and Pitt's Contract (55 S. J. 536)-arose; and Mr. Justice Warrington then decided that, when property has been conveyed for a consideration less than its full value, the fact that stamp duty has only been paid in respect of the consideration mentioned in the conveyance, and not in respect of the value of the property, will not affect a subsequent purchaser for value. It will be interesting to observe what the effect of this decision will be-it is possible that it may go far towards nullifying the sub-section.

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WHEN Commenting upon the want of unanimity in the decision arrived at by the learned judges of the Court of Appeal in Ball v. William Hunt and Sons Limited (see 130 L. T. Jour. 594), we ventured to predict that the adoption by the House of Lords of the dissentient view entertained by Lord Justice Fletcher Moulton was more than probable. But the doubtfulness of the point there raised made such want of unanimity by no means surprising. On the contrary, in the absence of anything even remotely suggesting a clue as to the intentions of the Legislature on the point, a wide divergence of opinion in regard to its decision was only to be expected. Our anticipations, however, as to what would take place in the event of an appeal to the House of Lords have been borne out by the unequivocal opinions expressed by the learned Lords: (see ante, p. 56). They have accepted the broad view of the question that was expressed by Lord Justice Fletcher Moulton, rather than that of the two other members of the Court of Appeal, the Master of the Rolls (Cozens-Hardy) and Lord Justice Buckley: (see 104 L. T. Rep. 327; (1911) 1 K. B. 1048). In other words, they have given an extended meaning to the language of sect. 1 of the first schedule to the Workmen's Compensation Act 1906 (6 Edw. 7, c. 58). In this way, they have filled up the gap left in the statutory provisions by what seemed to be a glaring casus omissus therefrom. "Total or partial incapacity for work "is by the section to be the reason for awarding compensation to a workman who has been injured by accident arising out of and in the course of his employment. The learned Lords have boldly read into those words that which the majority of the learned judges of the Court of Appeal shrunk from doing-that is to say, "ineligibility for Second Sheet.

employment." In Ball's case (ubi sup.) the workman had for many years been totally blind of one of his eyes in consequence of an accident to it. But throughout he had been performing skilled work and was earning full wages thereat. A subsequent accident necessitated the removal of the injured eye. Thus for the first time was rendered apparent the fact that the workman was possessed of only one effective eye. The injury by the subsequent accident was consequently in the nature of a mere disfigurement, as distinct from causing" total or partial incapacity for work." The partial incapacity previously existed, although unknown to the employers, and became patent to everyone through the inevitable surgical operation. The result, therefore, was this, that it was solely on the ground that the workman was so disfigured by that operation that he was unable to obtain employment, either with his former employers or other firms. notwithstanding his ability to do it if he had it. He was reduced to a physical condition which prevented him from getting work. The learned Lord Chancellor (Earl Loreburn) thought that there was "total incapacity for work" when a workman had a physical defect which made his labour unsaleable in any market reasonably accessible, and "partial incapacity" when the same made his labour saleable for less than it would otherwise fetch. So far as an injured workman is personally concerned, he equally suffers, as was remarked by Lord Shaw, whether the accident whereby he was injured prevents him from doing work or renders him ineligible to obtain it. In construing "incapacity for work as including "ineligibility for employment," the House of Lords may conceivably have somewhat strained the strict letter of the statutory language, but certainly not the spirit of it. Compensation for injury to a workman as a wage-earner was what was really contemplated. And the present decision gives full effect to the aim and object of the Legislature.

THE CONVEYANCER.

Unreasonable Conditions Attached to a Licence to Assign.

COVENANTS by lessees not to assign, underlet, or part with the possession of the property without the consent in writing of the lessor, "but so that such consent shall not be unreasonably or arbitrarily withheld," are of frequent occurrence in leases, and the practitioner is not infrequently faced with the question what conditions the lessor is entitled to impose when he is asked to give his licence or consent to assign or underlet. It is clear that he cannot exact a fine, or sum of money in the nature of a fine, for such licence or consent! (sect. 3 of the Conveyancing Act 1892); but it is impossible to lay down any hard-and-fast rule as to what other conditions he may impose. The words "arbitrarily" and " unreasonably," though different in their primary meaning, seem in this connection to have much the same effect. It is not proposed here to enumerate the various conditions which have been decided to be reasonable or the reverse. They will be found collected and summarised, up to the present time, in the sixth edition of Mr. Redman's Law of Landlord and Tenant. We only propose to point out what courses are open to the lessee or assignee, as the case may be, if he considers that the conditions sought to be imposed by the lessor are arbitrary or unreasonable. It is, no doubt, well settled that in such a case the lessee or assignee may assign without consent: (see Treloar v. Bigge, L. Rep. 9 Ex. 151,' in which it was held that a refusal "upon advice," though the grounds of refusal were not specified, was not "arbitrary "). In that case Chief Baron Kelly defined arbitrary refusal as one given "without fair, solid, and substantial cause, and without reason." And that case was followed in Sear v. House Property and Investments Company (43 L. T. Rep. 531; 16 Ch. Div. 387) and in other cases; but the lessee cannot recover damages against the lessor as on the breach of an implied covenant. If, however, the lessee takes the law into his own hands by assigning without leave, the assignee runs the risk of an action being brought against him by the lessor to recover possession under the proviso for reentry on breach of covenant which is usually inserted in leases. If

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