road licensed premises have to be closed at an earlier hour than those on the opposite side. This anomaly, however, is inevitable where districts must have a boundary and the requirements of districts are not identical. But it cannot be disputed that since the new restrictions as to hours have come into force there has been a marked improvement throughout the whole country with regard to drunkenness and those crimes for the commission of which drink is largely responsible. Increase of price has, no doubt, had its effect, but restricted hours have also largely contributed to the general improvement in the habits of the population.

Rating and Valuation Bill

GOVERNMENT departments in their proposed legislation show no tendency to abandon the vicious system of legislation by reference, and the present Rating and Valuation Bill introduced by the Minister of Health on Monday last is no exception. It is quite a short measure, consisting of but six sections and two schedules, but most of its provisions are absolutely unintelligible save to those who are intimately acquainted with the Rating and Valuation Act 1925, and in fact it took the Minister some considerable period of time to explain its effect to the House of Commons. Clause 1 is, maybe, excusable, for it merely applies sect. 24 of the Act of 1925, which provides for the valuation of hereditaments containing machinery and plant, to London. Clause 2 contains an amendment as to the ascertainment of rateable values also in the metropolis, and is an attempt to bring the scale of deductions which now exist in London more into uniformity with the rest of the country. Compounding rates forms the subject of clause 4, and it permits the rating authority during the period of the first new valuation list to allow rated owners under sub-sect. (1) of sect. 11 of the Act of 1925 a percentage not exceeding 15 per cent. instead of the substituted 10 per cent., to which the commission was reduced by the legislation of 1925. It was explained that the reason for this concession was owing to the decision in Nicholson v. Jackson (125 L. T. Rep. 802), for, as the tenant would have to pay a larger amount of net rates, he would lose the benefit of the previous larger commission and there might be a considerable increase of the rent payable by him. Clause 4 is a useful one, as it provides for decisions of doubtful points of law for the purpose of getting uniformity. It provides :

(1) If on the representation of the Central Valuation Committee it is made to appear to the Minister of Health that a substantial question of law has arisen in relation to the valuation of hereditaments or of any class of hereditaments for the purposes of rating and that, unless that question is authoritatively determined, want of uniformity or inequality in valuation may result, the Minister may submit the question to the High Court for its opinion thereon, and the High Court after hearing such parties as it thinks proper shall give its opinion on the question.

(2) The Central Valuation Committee may appear as parties on the hearing of any such case for the purpose of supporting any contention with respect to the question at issue and may, if they think fit so to do, contribute such amount as they think proper towards the costs of any persons appearing on the hearing for the purpose of supporting the contrary contention.

And it is a statutory provision that might be well applied to revenue cases. Three minor amendments

of the principal Act are contained in clause 5, the first two of which are designed to dispense with unnecessary notices in the case of persons unaffected. The desirability of the other amendment under subclause 3 is not so apparent. No doubt the measure will be considered in committee, for further explanation of some of its provisions is clearly necessary.

MORTGAGEES UNDER THE LANDLORD AND TENANT ACT 1927 CONCERN seems to be felt in a great many quarters as to the position of mortgagees under the Landlord and Tenant Act 1927, and it has been suggested that mortgagees may seriously be prejudiced by some of its provisions. While not entirely sharing these fears, we are bound to admit that the mortgagee must keep a watchful eye on any steps he may contemplate taking, with a view to the preservation of his security, since he might thereby place himself in a far worse position. It might be of advantage, therefore, to examine the position of We a mortgagee under the Landlord and Tenant Act 1927. would like, however, to utter a word of caution, that the Act literally bristles with difficulties, and that the propositions which are set out here might possibly not meet with general approval.

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It is necessary in the first place to consider the definition of · landlord." "Landlord is defined in sect. 25 (1) as any person who under a lease is as between himself and the tenant or other lessee for the time being entitled to the rents and profits of the demised premises payable under the lease," lease" being defined as "a lease, underlease, or other tenancy, assignment operating as a lease or an underlease, or an agreement for such lease, underlease tenancy, or assignment."

There would appear to be three ways in which a person may be entitled to receive the rents and profits, as between landlord and tenant-i.e., at law, as, for example, where the landlord is the original landlord, or the personal representative of the original landlord; or in equity, as, for example, where a binding contract for the sale of the reversion has been entered into between the landlord and a third person, the latter being entitled in equity to the rents and profits, till the date of the completion of the sale; or by statute, e.g., under sect. 141 of the Law of Property Act 1925 on an assignment or severance of the reversion.

The question must therefore be considered whether a mortgagee can in any circumstances be regarded as a person who, under a lease, is, as between himself and the tenant for the time being, entitled to the rents and profits. Under the Law of Property Act 1925 a mortgagee will be granted a mortgage term by the mortgagor, and will have, therefore, a term of years, which he will hold under the mortgagor. The Law of Property Act, however, is to be regarded as having effected changes rather in the form than in the substance of mortgages, so that the remedies and powers of mortgagees remain unchanged.

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Under the previous law, a mortgagee may allow the mortgagor to remain in possession and collect the rents and profits, or, with a view to enforcing his security, he may appoint a receiver or enter himself into possession. So long as the mortgagor is allowed to remain in possession it will be the mortgagor and not the mortgagee who will be regarded as the landlord," since it will be the former and not the latter who will be entitled to the rents and profits. And this result will equally follow where a receiver is appointed, because a receiver is to be regarded as the agent of the mortgagor. Once, however, the mortgagee enters into possession and thereby becomes entitled to the rents and profits, the mortgagee, and not the mortgagor, will become the landlord. Whichever course a mortgagee adopts, he will be subject to certain disadvantages, but, on the other hand, he will enjoy certain benefits.

It is to be remembered that, in order to make any improvements under the Act, the tenant must serve on the landlord notice of his intention to make the improvements, and if any objection is raised the matter will be determined by the tribunal. So long as the mortgagee, therefore, does not enter into possession, he can have no say on the question of the proposed improvements, being neither entitled to be served with the notices, &c., with regard to the proposed

improvements, nor entitled to appear before the tribunal. This may be a matter of some importance to a mortgagee, since, in the event of his being the "landlord” when a claim for compensation is made in respect of the improvements, he will be the person on whom will rest the obligation of paying such compensation; for it is quite clear, by reason of the definition of landlord and the interval of time that may elapse between the execution of the improvements and the making of the claim in respect thereof at the termination of the tenancy, that the landlord may not be the same person at both these times.

So long as a mortgagee, therefore, remains out of possession, he can steer clear of any liability in respect of compensation, whether for improvements or goodwill; but by taking possession he will become a "landlord," within the meaning of the Landlord and Tenant Act, a position which he can equally as well acquire by exercising his rights of foreclosure, or by purchasing the equity of redemption.

It is necessary to consider, next, what would be the effect of a payment of compensation and the obtaining of a charge under the Act. It is to be noted that, where a landlord has paid compensation, he may obtain an order in favour of himself and any person deriving title under him, charging the holding or any part thereof with the repayment of the amount paid or expended, including any proper costs or charges incurred by the landlord in opposing any proposal or in contesting the claim of the tenant (Sched. I., par. 1); and such charge will be a charge on the holding "for the landlord's interest therein and for interests in the reversion immediately expectant on the termination of the lease" (ibid., par. 4).

Where the landlord is an absolute owner beneficially entitled, there can be no occasion, unless he wishes to raise the money from third persons, for him to obtain a charge on his own holding, on the payment of compensation by him, and the position it seems must be the same whether or not the holding has been mortgaged by him, the mortgagee in such case having priority over the landlord mortgagor. If the mortgagee, however, has paid the compensation as landlord, he would, in addition to the original mortgage, clearly be entitled to a charge on the holding in respect of the amount paid, and the land would be liable to satisfy this charge even after his mortgage had been paid off.

A question of some difficulty arises where subsequent advances have been made by third persons to a landlord mortgagor. If the charge obtained by the mortgagee is registered, it would clearly have priority to any mortgage made subsequently thereto. Where, however, a subsequent advance is made by a third person on the security of the holding, and the charge itself is created subsequently to such mortgage, will such charge have priority to the subsequent mortgage? It is submitted not, since tacking would not be permitted by sect. 94 of the Law of Property Act 1925.

The leasing powers of mortgagors, it should also be noted, are somewhat extended by the Landlord and Tenant Act 1927. Under this Act, a landlord may in certain circumstances evade the liability to pay compensation to the tenant in respect of improvements or goodwill by offering the latter a renewal of the tenancy of the premises (cf. sect 2 (1) (d) ; sect. 4 (1) (b); and by sect. 14 of the Act it is provided that "where the powers of a landlord to sell or grant leases are subject to any statutory or other restrictions, he shall, notwithstanding any such restrictions or any rule of law to the contrary, be entitled to offer to sell or grant any such reversion or lease as would under [Part I. of the Act] relieve him from liability to pay compensation thereunder ." (i.e., in respect of improvements or goodwill). Now the leasing powers of a mortagor are governed by the provisions in the mortgage deed and by sect. 99 of the Law of Property Act 1925, the provisions of which section, however, might be excluded by agreement (cf., sect. 99 (13) of the Law of Property Act 1925). It is submitted, therefore, that whatever may be the powers of the particular mortgagor, he is given a paramount power by sect. 14 of the Landlord and Tenant Act 1927 to grant renewals of leases, which will relieve him from the liability to pay compensation, whether for improvements or goodwill.

And the position with regard to the granting of new leases under sect. 5 of the Act appears also to be somewhat similar, although the granting of new leases is not expressly brought within the scope of sect. 14 of the Landlord and Tenant Act.

The position of reversionary leases also requires some consideration. Where the tribunal is of opinion that a tenant is entitled to a new lease under sect. 5, but the term which the

immediate landlord can offer is not adequate, the tribunal can order one or more superior landlords to grant to the tenant applicant reversionary leases, so that the length of the tenure of the holding by the tenant might be adequate (cf. sect. 5 (11). Such reversionary leases are further to be deemed to be leases "authorised by sect. 99 of the Law of Property Act 1925": (sect. 5 (11) of the Landlord and Tenant Act 1927). It is not quite clear, however, whether the provisions of sect. 99 are to apply in their entirety to such leases, and there are certain difficulties in such a construction. Thus under sect. 99 the mortgagor or mortgagee is empowered to grant leases only while in possession (sect. 99 (1); and such leases must take effect in possession not later than twelve months after its date (sect. 99 (5); and, further, the provisions of sect. 99 may be excluded by the mortgage deed (sect. 99 (13). It will be seen, therefore, especially by these two latter provisions, i.e. sub-sect. (5) and sub-sect. (13) of sect. 99, that to adopt the construction that reversionary leases under the Landlord and Tenant Act 1927 are to be governed by sect. 99 of the Law of Property Act 1925 would practically have the effect of nullifying sect. 5 (11) of the Landlord and Tenant Act 1927. On the other hand, inasmuch as reference is made expressly to sect. 99 of the Law of Property Act 1925, it is difficult to accept any other construction.

So far we have been considering the position of a landlord who has mortgaged his interest, but the converse side of the picture, i.e., the tenant who has mortgaged his interest, also requires attention.

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When a tenant mortgages his interest, he will still continue to be the tenant under the Act, so long, at any rate, as he remains in possession. If, however, the mortgagee takes possession, will he, i.e., the mortgagee, be entitled to be regarded as the tenant ? He certainly appears to come within the definition of " tenant” in sect. 25 (1) of the Landlord and Tenant Act 1927, " tenant being there defined as any person entitled in possession to the holding under any contract of tenancy, whether the interest of such tenant was acquired by original contract, assignment, operation of law, or otherwise "; and if the mortgagee in possession is the tenant, who is to be regarded as his landlord? It is submitted the mortgagor, as the mortgagor would be entitled immediately to the reversion expectant on the determination of the mortgagee's mortgage term.

Assuming, however, that in an ordinary case the tenant who has mortgaged his interest has remained in possession and has obtained compensation from his landlord, has the mortgagee any rights in respect of such compensation? Cases on the compulsory acquisition of land throw some light on the point. It would seem from such decisions as Cooper v. Metropolitan Board of Works (50 L. T. Rep. 602; 25 Ch. Div. 472) that compensation for goodwill which was not personal, but which attached to the premises, would belong to the mortgagee, so that the mortgagee would be entitled to have recourse against any such compensation paid to the tenant. Similarly it seems, as improvements are to be regarded as being incorporated in the premises, that compensation for improvements would also belong to the mortgagee of the tenant entitled thereto. In every case, however, the provisions of the particular mortgage deed would have to be carefully considered.

COMMENTS ON CASES

Binding a Company

THE decision of the House of Lords in Houghton and Co. v. Nothard, &c., Limited (138 L. T. Rep. 210; (1928) A. C. 1), shows that people dealing with a company must be careful how they make use of the statement in Buckley on the Companies Acts (10th edit.), p. 174: "A stranger dealing with a company has a right to assume, as against the company, that all matters of internal management have been duly complied with." Within certain limits there is no doubt that that is true, but it is safer to ascertain that any power of delegation has been properly exercised before dealing with an apparent agent. L., one of the directors of the defendant company, entered into an agreement with the plaintiff company affecting the defendant company but to which the latter company was not a party. The secretary of the defendant company purported to confirm the agreement on the part of that company. The articles of association contain the usual power for the directors to delegate their powers, but the plaintiffs or their representative, did not know of this power, and so

could not rely on it. The agreement being very disadvantageous to the defendant company, it became necessary to see if L. and the secretary had in fact bound it, to its harm. In regard to the director, as he was acting wrongly in the matter, it was held that his knowledge could not be treated as the knowledge, and therefore acquiescence, of the company. The knowledge of the secretary did not affect the company as it was not part of his work to make such contracts. "It may be assumed," said Lord Dunedin, that the knowledge of directors is in ordinary circumstances the knowledge of the company. The knowledge of a mere official like the secretary would only be the knowledge of the company if the thing of which knowledge is predicated was a thing within the ordinary domain of the secretary's duties." As to the suggestion that there had been negligence on the part of the unincriminated directors which would found an estoppel against the company, the same learned law lord held that there was no ground for this. It is no part of a director's duty to inspect accounts every day. There was nothing in the circumstances to arouse the suspicions of the two directors as to the existence of any such agreement." The moral is that the seal of the company should be required for any unusual agreement intended to bind it, or, if there is any suggested delegation, that the existence of the power to delegate and the proper exercise of the power should be proved.

THE CONVEYANCER

Settled Land-Bridgett and Hayes' Contract

ATTENTION may again be called to the direction of the Senior Registrar of the Principal Probate Registry (ante, p. 174) recently issued in consequence of the decision in Re Bridgett and Hayes' Contract (138 L. T. Rep. 106). That direction is to the effect that" in all future grants save and except settled land the formula to be used shall be save and except settled land vested in the deceased which was settled previously to his or her death and remains settled land notwithstanding his or her death.' Where all the land vested in the deceased ceased to be settled land on his death a general grant will issue. Where a grant save and except settled land has been issued in the form prior to the aforesaid decision, and it appears by an affidavit of the grantees that there was settled land vested in the deceased which ceased to be settled land on the death of the deceased, the grant may be amended by substituting the formula given in par. 1, provided that no grant limited to that settled land is in existence. If such grant has been made it must first be revoked." Some such direction was to be expected as Re Bridgett and Hayes' Contract only applied where land ceased to be settled land at the death of the tenant for life, and not where land remained settled land after that event. The expression "all the land" in the aforesaid direction must mean all the settled land." Why, when a grant has been issued excepting settled land and all the settled land ceased to be settled at the death of the tenant for life, the probate should not be amended by simply striking out the words of exception is not clear.

Powers of a Sole or Surviving Personal Representative

OWING to the enactment that there must be two trustees in order to give a receipt for capital money, practitioners are sometimes in doubt as to whether a sole or surviving personal representative can give a good discharge for the purchase money of land. Sect. 2 (1) of the Administration of Estates Act 1925 (15 Geo. 5, c. 23) makes it quite clear that he can do so, as it provides that all such powers of disposition as were before the commencement of the Act exercisable as respects chattels real by the survivor or survivors of two or more personal representatives, as well as by a single personal representative, or by all the personal representatives together, shall be exercisable by the personal representatives or personal representative of the deceased with respect to such real estate; and see Wolstenholme and Cherry's Conveyancing Statutes, 11th edit., p. 483. Further, it is provided by sect. 27 (2) of the Law of Property Act 1925, as substituted by the Law of Property (Amendment) Act 1926, Schedule, that though the proceeds of sale of land, or other capital money, is not to be paid to fewer than two persons, except where the trustees are a trust corporation, that sub-section is not to affect the right Second Sheet

of a sole personal representative, as such, to give valid receipts for the proceeds of sale, or other capital money, nor, except where capital money arises on the transaction, is it necessary to have more than one trustee. It is true that the Judicature Act 1925, s. 160 (1), provides that probate or administration shall not be granted to more than four persons in respect of the same property, and that administration shall, if there is a minority or if a life interest arises under the will or intestacy, be granted either to a trust corporation, with or without an individual, or to not less than two individuals; but sub-sect. 2 provides that if there is only one personal representative (not being a trust corporation) then, during the minority of a beneficiary, or the subsistence of a life interest, and until the estate is fully administered, the court may, on the application of any person interested or of the guardian, committee or receiver of any such person, appoint one or more personal representatives in addition to the original personal representative. If, however, there is a sole or a single executor, competent and willing to act, then even where there is a minority, or life interest, it is not necessary that probate should be granted to a trust corporation, or to not less than two individuals as executors; but, as already appears, the persons interested may apply for the appointment of one or more additional executors: (Wolstenholme and Cherry's Conveyancing Statutes, p. 498).

Conveyances by Executors who are also Trustees PRACTITIONERS are cautioned against taking conveyances by persons as executors and trustees" or "as trustees and executors,” as they cannot act in both capacities at the same time. The difficulty generally arises when it is doubtful whether or not there has been an assent to the devise to the trustees, or where the vendors have purported to sell as trustees and it turns out that they have not power to sell in that character. Thus in Re Milner and Organ's Contract (123 L. T. Rep. 168) the vendors contracted to sell the property as trustees of a will. It subsequently transpired that the trust for sale had not arisen. They then offered to sell as personal representatives, but, as observed by Mr. Justice Eve in the course of his judgment, the purchaser was naturally unwilling to take a conveyance on that footing, inasmuch as the fact that they had contracted to sell as trustees was almost conclusive evidence that as executors they had assented to the vesting of the land in themselves as trustees, and were, therefore, no longer in a position to sell as legal personal representatives. The actual decision in that case was that the vendors conduct in contracting to sell, acting upon mistaken advice as to the construction of the testator's will, was not so reckless or inconsistent with that of an ordinarily prudent man as to deprive them of their right to rescind.

Settlements by Reference-Compound Settlement

SECT. 32 of the Settled Land Act 1925 provides in very plain language that where a settlement takes effect by reference to another settlement the trustees for the time being of the settlement to which reference is made are to be trustees of the settlement by reference. But that does not apply if the settlement by reference contains an appointment of trustees thereof for the purposes of the Settled Land Acts 1882-1890 or any of them or the Settled Land Act 1925. Nevertheless, that section has been the subject of at least two decisions, namely, Re Adair (164 L. T. Jour. 65) and Re Shelton's Settled Estates (ante, p. 80). In Re Adair Sir Frederick Adair by his will made in 1905 devised certain estates on the like trusts and limitations as those comprised in the will of Sir R. C. Adair. Sir Frederick appointed trustees for the purposes of the Settled Land Acts 1882-1890; a disentailing deed was executed in 1918, and a partial resettlement in 1919. It was decided by Mr. Justice Russell that the compound settlement consisted of the will of Sir Frederick, the disentailing deed, and the resettlement only, and that the trustees of that will were the trustees for the purposes of the Act of the compound settlement, and were the proper persons to execute any vesting deed or deeds which were required in favour of the plaintiff, the tenant for life. That decision was followed in the recent case of Re Shelton's Settled Estates. The facts (which will be found ante, p. 80) differed somewhat from those in Re Adair, as in the Shelton case the testator did not appoint trustees for the purposes of the Settled Land Act. It was, accordingly, further decided by Mr. Justice Clauson that by virtue of sub-sect. 3 of sect. 30 of the Settled Land

Act 1925 the personal representatives of the testator were the trustees of the settlement effected by reference for the purposes of the Settled Land Act 1925.

Bequests of Railway Stock-Amalgamation of Railways

WHEN the various railway companies were amalgamated in groups, under the Railway Act 1921, it was, of course, provided that the substituted stock was to be held on the same trusts and privileges as affected the stock for which it was substituted and that any reference in any Act of Parliament, deed, will, codicil, or writing, to stock of the six amalgamated companies should be deemed to be a reference to the stock of the company substituted therefor by virtue of the scheme. But for a provision of the kind questions of ademption might have arisen, and Re Anderson; Public Trustee v. Bielby (ante, p. 143) should be noted.

To be a personal representative or a trustee generally involves much toil for no reward, and produces a series of problems, which must be solved correctly, as failure is liable to cause the unfortunate personal representative or trustee personal loss. One particular source of difficulty is that when the period arrives for distributing the deceased's assets or the trust property it is often practically impossible to trace the persons who are beneficially entitled to the property. The Law of Property Amendment Act 1859, s. 29, gave some protection to personal representatives in dividing an estate in such circumstances. This section has been re-enacted as sect. 27 of the Trustee Act 1925 with some considerable modifications and additions which are of importance. This new section, which has been altered by the Law of Property (Amendment) Act 1926, now runs as follows: "With a view to the conveyance to or distribution among persons entitled to any real or personal property, the trustees of a settlement or of a disposition on trust for sale or personal representatives, may give notice by advertisement in the Gazette, and in a circulating in a district in which the land is situated, newspaper and such other like notices, including notices elsewhere than in England and Wales, as would, in any special case, have been directed by a court of competent jurisdiction in an action for administration, of their intention to make such conveyance or distribution as aforesaid, and requiring any person interested to send to the trustees or personal representatives within the time, not being less than two months, fixed on the notice or, where more than one notice is given, in the last of the notices, particulars of his claim in respect of the property or any part thereof to which such notice relates." The most important addition made by sect. 27 is that it extends the protection of such notice by advertisement to trustees; under the old sect. 29 of the Act of 1859 the protection offered only covered personal representatives. As it has been held that the section extends not only to the case of persons who claim as creditors against the trust property, but also to the case of persons who claim as next of kin or as beneficiaries (see Newton v. Sherry, 1876, 34 L. T. Rep. 251; 1 C. P. Div. 246), the section will be of considerable use to trustees. Although personal representatives have undoubtedly a more wandering class of beneficiary to deal with, yet trustees, where property has been settled over a long period of years, often have extreme difficulty in tracing the persons ultimately entitled under their trust instrument. The new protection conferred on them will in many cases save the cost of an application to the court for an inquiry or the need for payment into court. A further alteration introduced by the section is that the newspapers in which the advertisements have to be inserted are specified. The section as originally drafted required the advertisement to be inserted in a London newspaper in addition to the Gazette. This requirement has now been cut out and all that is necessary is for the advertisement to be in a local paper; but unless the deceased carried on business in a very limited area advertisement in a London newspaper is always desirable. The period of two months which must be allowed for the bringing in of claims is also an addition. It was held that under the old section there was no absolute rule that even a month must be allowed. After the expiration of the time fixed by the notices the trustees or personal representatives may convey or distribute the property or any part thereof to which the notice relates to or among the persons entitled thereto, having regard only

to the claims of which they then have notice, and they are not liable to any person of whose claims they have not had any notice at the time of distribution. The section does not enable the trustee or personal representative to disregard a claim of which he has notice because the person entitled has failed to answer the advertisements. When inserting advertisements in order to obtain the protection of this section, personal representatives should see that it clearly appears on the face of the advertisement if the deceased died intestate as to the whole or any part of his estate. Where the deceased left a will, but nevertheless there is an intestacy, this should be stated; unless this is done the next of kin have no clear intimation that they have any interest in the estate, and may reasonably consider the advertisement is only one for creditors, and consequently make no application. The point, of course, does not arise where the deceased left no will, for then it is obvious that the next of kin are sought.

Infant Joint Tenants-The Transitional Provisions

OUR correspondent writes:-"Perhaps you will permit me to refer again to the articles under this heading which appeared in the LAW TIMES for the 18th Feb. last and the 3rd inst. The position of land which, at the commencement of the Law of Property Act 1925 and the Settled Land Acts 1925, was held by one or more infants jointly and beneficially entitled appears to be a matter of opinion. The writer of these articles thinks that in such a case there is a gap in the provisions of the Settled Land Act 1925 if, after the commencement of that Act, one of the infants attains the age of twenty-one years, and that when that event takes place new trustees cannot be appointed in the place of the Public Trustee under Sched. II., par. 3 (iv.), of the Settled Land Act 1925, as the parents or guardians of the persons entitled who are still infants have then lost their power to appoint. First, then, as to the gap alleged to exist in the Settled Land Act. If the word "infant" be read in the plural throughout this par. 3 the gap appears to be filled up. If one of the infants attains the age of twenty-one after the commencement of the Act it makes no difference. The legal estate

is still vested in the Public Trustee or in the trustees appointed in his place, and they can deal with it until the youngest joint tenant attains the age of twenty-one simply because the eldest joint tenant could not deal with it alone (as he could if he were a tenant for life). Joint tenants do not hold in shares. Each holds the whole of the land and the proceeds of sale thereof, and they must act together through the trustees until they are all of age when they can require the trustees to convey to them under the Settled Land Act, s. 7 (5). Then as to the power of the parents or guardians to appoint new trustees. It seems to me that if the land is vested in trustees until the youngest joint tenant attains the age of twenty-one years, the power to appoint new trustees would also continue until then. I cannot find any provision limiting this power as suggested."

NOTES OF NEW DECISIONS

By Our Reporters in the Several Courts
HOUSE OF LORDS

Sale of goods-Measure of damages—Subsales--Chain of contracts-Breach-Default by first sellers.

Appeal from the decision of the Court of Appeal (Lord Hewart, C.J., Bankes and Scrutton, L.JJ.) (reported 137 L. T. Rep. 585). On the 3rd Nov. 1925 the defendants, Messrs. P., sold to the plaintiffs, Messrs. H., an unascertained cargo of Australian wheat of the quality and description and at the price stated in the contract for December or January shipment. Messrs. H., without waiting to receive the cargo, resold it to buyers on the same terms except as to price. There were further subsales in a chain of contracts. By subsequent nomination, Messrs. P., in Jan. 1926, nominated the steamship I. as the ship which was containing the cargo, the subject of the contract of the 3rd Nov. 1925. Messrs. P. (the sellers) had in their hands the documents of the cargo of the steamship I., and could have delivered them to their purchasers and, although they knew that their purchasers had resold the cargo, they broke their contract and refused to deliver

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the documents to their purchasers. The breach of contract was admitted, the only question being with regard to the measure of damages. The matter went to arbitration, and the arbitrators stated that they were unable to find that it was in the contemplation of the parties or ought to have been in the contemplation of Messrs. P. at that time (i.e., the date of the contract), that the cargo would be resold, or was likely to be resold before delivery; in fact, the chances of its being resold as a cargo and of its being taken delivery of by Messrs. H. were about equal." There was evidence before the arbitrators that Messrs. H., the purchasers, carried on a trade in which they used themselves about half of the cargoes which they bought, and resold the remainder. The Court of Appeal held, that having regard to the finding of the arbitrators, there were no materials on which the court could find that, at the date of the making of the contract, the parties contemplated that the cargo would be resold before delivery. The only inference that the court could draw was that the purchasers possibly not probably-might not use the grain, but might resell it. There was nothing in the contract itself nor in the circumstances to justify the court in departing from the ordinary rule as to damages. In the circumstances, therefore, the purchasers were not entitled to the extended damages measured by the profit which they would have made on the resale as well as all damages which they might be called on to pay by reason of their inability to deliver to subpurchasers, but the damages payable must be limited to the difference between the contract price and the market price at the date of the breach. The purchasers appealed.

Held, (1) that it was a question of the terms of the contract and that those terms provided for the case of resale. Whether such a resale was likely or not did not matter, if the buyers stipulated, as they had done, for power to resell; and (2) the measure of damages was not merely the amount of damage measured by loss in the market which arose in the usual course of business from the breach. It extended, whenever the special circumstances required this, to such possible damages as might reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it. Appeal allowed.

[Re R. and H. Hall Limited and W. H. Pim (junior) and Co.'s Arbitration. H. of L.: Lords Haldane, Dunedin, Shaw, Phillimore, and Blanesburgh. Nov. 21, 24, 28, 1927, and March 2, 1928.-Counsel for the appellants, A. T. Miller, K.C. and C. W. Lilley; for the respondents, Rayner Goddard, K.C. and D. B. Somervell. Solicitors: for the appellants, Thomas Cooper and Co.; for the respondents, Coward Chance, and Co.]

COURT OF APPEAL

Damage-Contract—Bailment-Breach of contract Jewellery left for repair-Failure to re-deliver-Loss-Measure of damages.

The plaintiff claimed from the defendants damages for the loss of certain articles of jewellery which the plaintiff had left with the defendants, who were jewellers, to be repaired and altered. The plaintiff said that she left the jewellery at the defendants' premises for repairs and her case was that she arranged to call for them on a certain day. But the defendants having finished the repairs returned the jewellery by messenger to an address at which the plaintiff had previously lived. The packet was received at that address by the plaintiff's husband, who signed for it and placed it on the hall table. From there it disappeared and had not been seen since. The defendants' case was that they had returned the jewellery when they finished the repairs and alterations to the address given by the plaintiff, which was entered on the form for that purpose when she left the articles with them. They denied that any arrangement was made about her calling for the jewellery. The jury having accepted the evidence of the plaintiff and found that the defendants had committed a breach of contract, the question of the measure of damages arose to be decided by the court. Lord Hewart, C.J. said that, acting, as he must, on the verdict of the jury, he must hold that the articles of jewellery were lost to the plaintiff when the defendants, in breach of

the contract which was found by the jury, had parted with the possession of them and put it out of their power to redeliver them to the plaintiff. The measure of damages was the agreed value of the jewellery.

Held, that the defendants' breach of contract was the direct cause of the loss, and the principle of Lilley v. Doubleday (44 L. T. Rep. 814; 7 Q. B. Div. 510) applied and the measure of damages was the value of the goods lost. Decision of Lord Hewart, C.J. affirmed.

[Booth v. Wellby. Ct. of App.: Scrutton and Sankey, L.JJ., and Romer, J. Feb. 29.-Counsel: W. A. Jowitt, K.C. and Storry Deans; Norman Birkett, K.C., Gilbert Stone and C. C. Ross; Solicitors: Richardson, Sadlers, and Collard; Theodore Goddard and Co.] Insurance-Turpentine-Risk of leakage-Leakage from any -Volatile substance-Temperature affecting bulkEvaporation — Certificate of Insurance Construction Liability of underwriters-Limitation of time for bringing action-Limitation clause in policy—No limit in certificate— Certificate to take the place of policy-Action under certificate.

cause

On the 27th July 1923 sellers in America sold to the plaintiffs in Rotterdam 100 barrels of turpentine at a c.i.f. price in Dutch guilders, per sixteen gallons net shipping weight. “one gallon out per barrel,” American net weight to be reduced at one gallon equals 3.25 kilos; payment by draft at sight with bill of lading and insurance policy attached, and (or) certificate of insurance ; insurance documents to include risk of leakage in excess of one per cent. upon the basis of the above reduction in weights. Turpentine was a very volatile substance, expanding and evaporating under heat, and American turpentine was sold for export in barrels by gallons. A complicated system of gauging the barrels was adopted, which included a system of filling a barrel to one gallon short of its capacity to allow for expansion. The practice in the trade was not to weigh, but to measure, the amount of turpentine shipped in America and to weigh, not to measure, the amount delivered in Europe, and a conventional measure to turn gallons into weight was used in the trade to see whether what was shipped was delivered, and it was taken in the trade that the normal loss on a voyage by evaporation was one per cent. There was a system of insurance of leakage from any cause over the normal one per cent. On the 23rd Aug. 100 barrels of turpentine were gauged at Jacksonville, in Florida and allowing for the one gallon per barrel a shipment of 5107 gallons was certified. The steamer on which the turpentine was shipped remained on the coast of Florida from the 23rd Aug. to the 19th Sept. before sailing for Rotterdam, and there was considerable evaporation. The sellers, to carry out their contract of insurance, obtained an American certificate of insurance issued under what were stated to be policies of insurance issued by the defendants, covering risks of " leakage from any cause in excess of one per cent. on each invoice conversion of kilograms to be made into American gallons shall be made on the basis of 3.25 kilograms to the gallon." In the alleged policies there was a condition that no claim under the policies could be maintained unless brought within a year after the happening of a loss, but the certificate of insurance contained no such limitation of time. When the turpentine was discharged in Europe in October, the weight was short, as compared with the weight calculated from the number of gallons shipped in Florida in August. The plaintiffs claimed against the defendants for the loss in excess of one per cent. but the defendants declined to pay in the absence of injury to the barrels or some clear sign of leakage. As the action was not brought within one year of the loss the defendants also relied on the condition in the policies limiting the time for bringing an action within one year.

Held, (1) that the defendants were liable to pay for loss of weight or bulk in excess of one per cent., even if such loss was caused by change of temperature, and (2) as the condition limiting the time for bringing the action was not in the certificate, nor was any notice of it given to the consignees, the defendants could not rely on it. The plaintiffs were entitled to succeed on both points. Decision of MacKinnon, J. affirmed.

[De Monchy and others v. Phoenix Insurance Company of Hartford and others. Ct. of App.: Scrutton and Sankey, L.JJ. and Russell, J. March 5.-Counsel: Jowitt, K.C.