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IN the earlier edition of Smith's Leading Cases (notes to Spencer's case), it was stated, that if a lease be made by indenture, in such a form as to create between the lessor and lessee an estoppel to deny that the lessor had a reversion, and the lessor conveyed all his interest, the disputed question arises, whether the asssignee can sue the lessee or his assignee for breaches of covenant, in respect of which the lessor might have sued had there been no assignment (see 5th ed., notes to Spencer's case, p. 66); and that Parke, B., in Goldsworth v. Knight (11 M. & W. 337), expressed an opinion in the affirmative, and that there seemed to be no sound reason why the assignee of a reversion should not establish his title by way of estoppel; that an estoppel did not necessarily involve a falsehood; that, on the contrary, facts were ascertained through the medium of an estoppel, without reference to the question whether really true or false; and that it would be sheer fallacy to assume that a fact established by estoppel has, therefore, no real existence, and that, for judicial purposes, it ought to be dealt with as if it really existed. And in the fifth edition it was announced that the question had at length been decided in the affirmative, by the unanimous judgments of the Courts of Exchequer and Exchequer Chamber, in the case of Cuthbertson v. Irving (4 H. & Norm. 742; in error, 6 H. & Norm. 135; S. C., 5 Jur., N. S., part 1, p. 740; 6 Jur., N. S., part 1, p. 1211). The recent case of Saunders v. Merryweather (5 H. & C. 903) may now be added. In Cuthbertson v. Irving the action was by the assignee of the lessor against the lessee on a covenant to repair. The lessor had no legal reversion, either at the time of the lease or at the time of the assignment to the plaintiff. The lease did not disclose the fact that the lessor's estate was in mortgage; the covenants declared on were stated to be with the lessor, his heirs and assigns; and at the time of the execution of the lease, the defendant was in possession under a former lease, and had continued in possession during the whole term. During the term the lessor sold and conveyed all his interest in the premises to the plaintiff; the deed of assignment, however, recited the mortgage, and then shewed on the face of it that the lessor was without legal title. The Court held, that an estate in reversion by estoppel was created by the lease, and conveyed to the plaintiff by the assignment, or, as is put in the note to the case, 5 H. & C. 909, the Court held "that the defendant was estopped from disputing the validity of the lease on the ground that the lessor had no legal interest or title in the premises, and that the estoppel continued in favour of the plaintiff, notwithstanding the assignment to him shewed that the lessor had no legal title." The Court, however, observed, that it would have been otherwise if the want of title appeared on the face of the lease itself. It will have been observed, that in the notes to Smith's Leading Cases it is said, that it would be a sheer fallacy to assume, that a fact established by estoppel has no real existence, and that, for judicial purposes, it ought to be dealt with as if it really existed; and thus that the estoppel does not merely, according to Lord Coke's definition, "close or stop the mouth" against alleging the truth, but also establishes as a reality for judicial purposes the fiction it asserts, and is ever after to be dealt with, at least between the same parties and their privies, as an actual fact, even though the subsequent deeds expressly shew it to be a fiction, and not a fact. And in Cuthbertson v. Irving, Martin, B., in delivering the judgment of the Court, expressed his satisfaction in thus perpetuating the estoppel, and by means of it holding the lessee to his covenants, and treating the legal reversion as an existing fact, of which the purchaser and assignee of the lessor's estate might avail himself to sue. "This state of the law," said the learned judge, "in reality tends to maintain right and justice, and the enforcement of the contracts which men enter into with each other (one of the great objects of all law); for so long as a lessee enjoys everything which his lease purports to grant, how does it concern him what the title of the lessor,—that is, the heir or assignee of his lessorreally is? All that is required of him is, that having received the full consideration for the contract he has entered into, he should on his part perform it.” In Saunders v. Merryweather, however, the want of title appeared on the deeds; and, therefore, though the assignee of the term had come in under a deed of assignment, which appeared to treat the equitable owner as lessor; and though the assignee of the term had entered into possession, and enjoyed the property, and paid the rent to the equitable owner; and though the intention of the parties was as manifest as it was in Cuthbertson v. Irving, yet the Court held, that there was no estoppel, as it appeared from the lease itself, in the first instance, what the true state of the title was, and also by reference to the lease, from the recitals in the deed of assignment under which the defendant claimed. That the Court was astute to discover, if possible, the means of carrying out, in this case also, the intention of the parties, though they were unable to do so, is evident from the observations made. Martin, B., during the argument, said, “In modern times the Courts endeavour to ascertain the intention of the parties, and to so construe the condition as to give effect to that intention;" and it will presently be seen that, irrespective of the question of estoppel, the same learned judge suggested a construction of the condition in the case before him, which would have had that effect, but which he felt to be too forced a construction to be adopted. In order fully to understand the case of Saunders v. Merryweather, it is necessary to refer to the numerous and complicated deeds under which the respective parties to the action claimed. The summary of the learned reporters relieves us from all difficulty in this respect. The action was one of ejectment for forfeiture for assigning the term without license. Waine had a lease of a public-house from the corporation of Liverpool for a term of seventy-five years, from the 20th December, 1847, and by indenture of that date he 10 mortgaged the premises to Tyrer; and by indenture with him, that when the recital in the indenture of the of the 26th April, 1849, to which Tyrer and Waine 4th October, 1864, is looked at, there is no estoppel, both were parties, the premises were leased to John- but the real fact appears by reference to the indenture son for twenty-one years from the 1st May, 1849. construe this proviso as an assignment in futuro to of the 26th April, 1849. I also think we could not That deed contained a proviso for re-entry by Tyrer Warne without straining its language, and giving it an and Waine, their assigns, &c., if the lessee should as- effect different from its actual meaning; there is, sign or underlet without Waine's approval in writing. therefore, no ground on which the plaintiff Waine can The mortgage to Tyrer, after several mesne assign-recover in this ejectment. With regard to Saunders, ments, was assigned, by indenture of the 28th No-who is the legal owner of the reversion, no right of vember, 1859, to the plaintiff Saunders. The lease to entry is reserved to him." Johnson, after several mesne assignments, to which Waine was a party, by indenture of the 7th February, 1861, to which Waine was a party, vested in Reid; then, by indenture of the 4th October, 1864, to which Saunders and Waine were both parties (which indenture recited the lease to Johnson), the lease was assigned to Merryweather. This indenture contained a covenant by Merryweather not to assign or underlet without Waine's consent in writing; and the proviso followed, that, if he did so, "it should be lawful for the said Waine, his executors, &c., in and upon the said premises, and any part thereof, in the name of the whole, to re-enter, and the same, and every part thereof, with the appurtenances, to repossess and enjoy, as in his and their former estate; anything herein contained to the contrary notwithstanding." Merryweather entered under this deed into possession of the premises, and paid rent to Waine; and then, by indenture of the 13th January, 1865, he assigned the lease to Anne Snowden without Waine's consent. Anne Snowden afterwards married the defendant Kelly, having previously by a marriage settlement assigned the lease to trustees, who were the other defendants. The Court, consisting of Pollock, C. B., and Martin and Channell, BB., unanimously held that there was no estoppel, and no mode of dealing with the facts, so as to enforce the manifest intention of the parties. In giving judgment, Baron Martin said he was clearly of opinion that there was no estoppel. The indenture of the 4th October, 1864, recited the indenture of the 25th April, 1849, by which the real truth appeared, and with regard to the argument based on intention, that the insertion of this condition shewed that the intention of the parties was, that Merryweather should not assign the lease without the consent of Waine, Martin, B., said "No doubt that is true; and if I could carry out that intention by giving any reasonable construction to the language of the condition, I should be inclined to do If the rules of law permitted, that might be done by construing this proviso, not as a condition, but as a reassignment of the term by Merryweather to Waine, to take effect in futuro, if the former demised, assigned, or in any parted with the possession of the premises without the license and consent of Waine. But I think that such a construction cannot be put on the proviso, and that we ought not to strain the language so as to make it operate in a manner different from what the words express. It seems to me, therefore, that the condition fails, because the right of re-entry is reserved to the party to the lease who is not the legal owner of the reversion." And Mr. Baron Channell said, "It is scarcely necessary to add anything to the observations of my Brother Martin, but I agree So. THE LONDON CORPORATION GAS BILL. WE refer to the debate on this bill, for the purpose of protesting against Lord Cranbourne's doctrine, that when an agreement has been made between the Legislature and a company or set of adventurers, the Legislature is bound for ever, although the adventurers may have broken their engagements. The doctrine because, as Sir George Grey feebly endeavoured to had in fact no application to the case before the House, shew, the Metropolis Gas Act did not affect to bind Parliament to abstain from interfering with the monopoly of the existing companies. The companies had already established themselves, and made their outlay; they did not spend a shilling on the faith of purely a measure of police regulation, intended to any exclusive privileges given by the act. keep the peace between contending companies, and to protect the pavements from unnecessary violation, and the consumers of gas from more than a liberal maxiated among the companies we do not care to inquire. mum of extortion and imposition. How it has operIt has, probably, been beneficial to the pavements, but as a protection to consumers it is found to be an utter failure. It was It is a mistake to represent Parliament as a contracting party, in the ordinary sense of that expression, when it grants privileges to those who seek its special interference. All that the adventurers can claim is a due consideration of the expenditure they have made and the risk they have incurred, when it is proposed to expose them to competition. The ethics of parliamentary enjoyment involve considerations very different from those which determine the rights and be established on sound principles. But it is clear duties arising out of private contracts, and are yet to that Parliament ought never to consider itself precluded from revising and undoing any arrangement, which, if fairly considered at the time of making it, would have appeared to be prejudicial to the public interests-interests seldom sufficiently represented or and it is not too much to imply in every legislative protected (as the companies' whip on Tuesday shewed); concession, as some little guarantee of good faith on the part of the undertakers, a condition that the grant may be revoked if it shall appear to have been improvident. Good faith in dealing with companies, damned, and act accordingly-means something very which have nothing to be kicked and nothing to be different from good faith between individuals. The Queen has been pleased to appoint Walter Morgan, Esq., now a Judge of the High Court of Judicature at Fort William, in Bengal, to be Chief Justice of the High Court for the North-western Provinces of the Presidency of Fort William; and Alexander Ross, Esq., William__Edwards, Esq., William Roberts, Esq., and Francis Boyle Pearson, Esq., all of the Bengal Civil Service, and Charles Arthur Turner, Esq., Barrister-at-Law, to be Judges of the said High Court for the North-western Provinces. 1866. Emperial Parliament. HOUSE OF LORDS.-Monday, March 5. LAW OF EVIDENCE AMENDMENT BILL. The Lord Chancellor, in moving the second reading of this bill, stated that he had introduced it at the suggestion of Sir James Wilde. At present parties to suits were allowed to be witnesses in their own cases, except in the instances of suits in regard to adultery, and of actions for breach of promise of marriage. He proposed to abolish the exception in the latter case altogether. He did not think that persons ought to be rendered liable to be asked whether they had or had not committed adultery, since the object of adducing evidence was to get at the truth; and he did not think this end would be attained by placing persons in a position in which they might think that it was less wrong to commit perjury than to confess the commission of adultery. He did not, therefore, propose that persons should be compelled to give evidence in such cases. But, on the other hand, he thought that a wife or a husband should be allowed to give evidence in explanation of his or her conduct if he or she desired. At present a husband or wife was allowed to give evidence on any issues of cruelty or desertion which might arise in the course of a suit for divorce or judicial separation instituted by the wife. But it was most inconvenient to allow a witness to be examined on one or more points, and to exclude his or her evidence on another. What he proposed, therefore, was, to render both parties competent, but not compellable, to give evidence in all matrimonial causes, on the issue of adultery as well as on others. It might be said that this would be unfair, because if parties who were thus rendered competent to give evidence did not offer themselves for examination, the inference that they had committed adultery would be irresistible. But he did not think that this was an objection to the measure; because the object they all had in view was the attainment of truth; and if persons really had committed adultery, and therefore could not give evidence, no injustice would be done by convicting them of it. Lord Chelmsford said that a bill containing similar provisions to those embodied in the present bill was rejected by the House of Commons; and he was of opinion that it would be extremely dangerous to admit any relaxation in the present law of evidence on this subject. He thought that there would be no practical difference between permitting and compelling to give evidence. In every case the "may" would be the "must." If persons did not come forward and give evidence, the jury would be certain to infer their guilt; and knowing this, they would often be induced to commit perjury. At all events, a great temptation to commit that offence would thus be held out both to a guilty wife and to her paramour. In order to shew how strongly this inducement would act, he might refer to a case which had occurred just before he left the bar. An action for criminal conversation was brought against a gentleman who was a county magistrate. After a verdict had been given for the plaintiff in that case, the husband proceeded to the Ecclesiastical Court in order to obtain a divorce a mensâ et thoro. On that occasion the adulterer appeared and made a deposition that no adultery had been committed. On that an indictment for perjury was preferred against him. He (Lord Chelmsford) was retained for the defence, and it became a very serious matter for consideration how that defence should be conducted. It was clear that the defendant had no hope of obtaining an acquittal unless the wife would appear and swear that she had never committed adultery. The result was, that the wife did so appear as a witness; did swear as the defendant had done, and the latter was acquitted. The Divorce Court was established shortly afterwards. The husband went into that court. The adultery was clearly proved. A divorce was decreed, and almost the first act of his official life as Lord Chancellor was to remove the defendant from the commission of the peace. He, therefore, said, that if they relaxed the present rule, they would hold out to guilty persons a temptation to commit perjury which would be almost irresistible. The scandal of the Divorce Court was now very great, but the scandal would be greatly increased if the wife, the husband, and the corespondent were allowed to give evidence, and were to be subject to cross-examination on all the events and details of their lives. He was convinced that they would regret passing this bill, and he, therefore, trusted that they would refuse it a second reading. With respect to the other part of the bill, it was quite clear, that if the female plaintiff in an action for breach of promise were allowed to give evidence, her case would be proved with dangerous facility. It might be said that the defendant would also be allowed to tell his story; but all the sympathy would be on the side of the woman, and in nine cases out of ten her story would be believed, whether it was true or not. The result of passing this bill would be to convert all the actions which were at present brought as actions for seduction into actions for breach of promise of marriage. The woman would be sure to allege that she had yielded under a promise of marriage; and a jury before whom it was proved that she had been seduced by a defendant would look with so much severity on his conduct, that they would most likely give a verdict against him on the promise of marriage. Feeling so strongly as he did on this subject, he should move that this bill be read a second time that day six months. Lord Taunton also opposed the bill, adducing against it the authority of the late Lord Denman, who said that he would never place a man in a position in which public opinion would sanction his committing perjury rather than betray a woman whom he had seduced. read a second time, when there were- 29 29 The Lord Chancellor said, that as the rule in cases of equality of voices was præsumitur pro negante, the bill would not be read a second time. The bill was then ordered to be read a second time that day six months. DIVORCE AND MATRIMONIAL CAUSES BILL. This bill was read a second time. Tuesday, March 6. DIVORCE AND MATRIMONIAL CAUSES BILL. This bill passed through committee. SAVINGS BANKS AND POST-OFFICE SAVINGS BANKS BILL. So. This bill also passed through committee. HOUSE OF COMMONS.-Tuesday, March 6. LONDON (CITY) CORPORATION GAS BILL. Mr. Crawford, in moving the second reading of this bill, said that in 1851 the Central Gas Consumers' Company entered into an arrangement with the city authorities, by which they bound themselves, that in the event of an act being obtained, the price of gas should be never more than 48. per thousand feet, and it should be reduced to 38. 6d., and subsequently to 3s., if the dividends enabled them to do Parliament gave its sanction to the bill. In 1858 and 1859 committees of the House of Commons investigated the subject, and the result was an act by which the whole gas supply was now regulated. The city was advised that the measure contemplated by the promoters would not affect them, and they took no part in the agitation on the subject; but after the bill became law, they found that the effect of it was to annul the understanding between themselves and the Central Gas Consumers' Company. The consequence was, that this company confederated with the other gas companies, and the price was immediately raised to 48. 6d. per thousand feet, and the chargs for the public lamps from 21. 19s. 6d. in 1857 to 51. 98. 6d. The corporation now introduced a bill for manufacturing gas for the use of the city, and that was the bill now before the House. It was said to be irregular and improper for the corporation to undertake the sale of gas. But his answer was, that that principle had been admitted by Parliament, and in many cases throughout the country gas and water were supplied hy the corporations to the inhabitants, and great advantages had been derived from the plan. He might be told that the act of 1860 was a settlement of the question; but surely it was competent for the House to reconsider what it had done at any time? The gas companies were bound by statute to make a report of the state of their affairs as to capital, expenditure, division of profits, &c., and that report was presented to Parliament. The view which he took of the filing of these accounts was this-that they were intended to be examined by the House, and for the accounts so rendered the companies were to be held answerable. It was for that reason that he would venture to suggest that, in case of this bill being read a second time, the inquiry should be extended to the whole metropolis, so as to see whether the requirements of the act of 1860 had been complied with. He had examined into the accounts of two of the companies; the Central Gas Consumers' Company, in 1864, divided 107. per cent. upon their capital, and also laid by a considerable amount. The gross profits of the company were 47,4287.; they divided 107. per cent. on their capital, paid themselves a further sum of 11,7417. as arrears due upon former years, and carried to the next year's account a further sum of 17,0177. The Imperial Gas-light Company was possessed of a capital of 1,235,000l. They had also another item of capital which required some investigation, viz. 130,000l. of what were stated to be proprietors' 10l. per cent. bonds. But these bonds had in later years taken the place of capitalised profits. In 1864 the gross profits were 560,000l. On some portion of their capital they paid 201. per cent., and they carried 42,000l. to their reserve fund. It was plain from this, that the Imperial Gas Company had actually realised a profit exceeding 107. per cent. applied to the House of Commons for leave to make 300,000l., Another gas company had which they had realised in profits, a part of their capital. He, therefore, moved that the bill be referred to a select committee. [Mar. 10, three years to sanction the introduction of another gas company in any of these districts. intentionally misled the House, if he led them to believe that the act gave an absolute monopoly, even for three years, to But the noble Lord had unthese gas companies, without the power of interference by Parliament. company other than the company to which such limits are It was stated at the end of the clause, that "no assigned, or shall hereafter be assigned, shall supply gas for sale within the same limits unless authorised by Parliament." The act, therefore, expressly contemplated the interference of Parliament, and no breach of faith could be imputed to Par liament if a case were made out for the second reading of this bill. Another clause provided, that if complaint were made to the Secretary of State of the quantity or quality of the gas, he was to appoint a person to inquire into the matter. In him, and Dr. Letheby was appointed to inquire. one case, and one case only, a complaint had been made to fully sustained the complaint, and shewed that the quality of the gas in the district was very inferior. The company was His report thereupon required to remedy that defect, and no other complaint having reached him, he presumed that the quality of the gas had improved. He was inclined to think that the best way would be to read the bill a second time, and to instruct the committee to which it would be referred to conduct companies had fulfilled all the obligations they were bound it should appear, as the result of that inquiry, that the gas a complete inquiry into the operation of the act of 1861. If to fulfil, and supplied gas sufficient in quantity and quality, and at a moderate and fair price, there would be no case for quiry led to a different result, the bill might be allowed to proceeding with this bill. If, on the other hand, the inproceed. the House, which had, no doubt, been packed for the occa- The House then divided, when there voted- Against it . 193 219 26 Lord Cranborne said that he was a member of the committtee which sat in 1860, and to which the question of the metropolitan gas companies was referred. He felt bound to say a few words on the subject, as the gentleman who had presided over the committee, Mr. Sotheron Estcourt, was not now a member of the House of Commons. He should first state that, in common with the majority of the inhabitants of London, he felt that the metropolitan gas companies were not treating the public fairly. more important than that the London gas companies should But there was something be compelled to act fairly, and that was the maintenance of the public faith of the House of Commons. It appeared to him to be a matter of supreme importance, that when, in the case of any commercial undertaking, the House of Commons made certain promises, and when, trusting to those promises, any persons took part in that undertaking, the pledges of the House should be kept with the most scrupulous and rigid good faith. The committee sat for a considerable part of the year 1860, and after much discussion it was resolved to divide the city into certain districts, each of which was to be lighted by one gas company. The committee also resolved that the profits of the shareholders in gas companies should be limited to 107. per cent. per annum, and that back dividends could be paid up for six years. Any profit beyond this was to go to the public. The case relied on by Mr. Crawford was, that this regulation had been infringed by the shareholders of the gas companies, who had divided more than 101. per cent. profit. Now, the committee had taken care that in case such a violation of the act should take place, the inhabitants of the metropolis could have recourse to a tribunal far more summary and more convenient than the House of Commons. A clause of the act provided, that in case a petition from twenty gas consumers in any district, stating that the company which supplied the gas to that district had violated their engagements, was presented to the Secretary of State for the Home Department, it should be competent for him to make inquiries into the matter, and then to make any changes in the boundary of the district to which the company supplied gas that he thought proper. Had the Corporation of London taken the course so plainly pointed out by the act? Obviously they had not; but, in-mittee, with an instruction to them to inquire into the operaThe bill was then ordered to be referred to a select comstead of appealing to the Home Secretary, they appealed to tion and results of the Metropolitan Gas Act, 1860. the House of Commons, and introduced the bill now under discussion. He moved that the bill be read a second time that day six months. Mr. H. Adair seconded the amendment. Sir G. Grey said that the noble Lord had stated very fairly the greater part of the clause, which, in effect, after assigning certain specified districts to each gas company, provided that, upon the application of certain persons, the Secretary of State should have power at the end of every Majority The bill was then read a second time. ometers in the city, two being near the Temple; and, from the removal of the gasometers in the city, and that that bill THE INSURANCE DUTY. Mr. Hubbard gave notice of his intention to move, after COMMONS AND OPEN SPACES. move for leave to bring in a bill for the preservation and |