a EADY J. 1910 BRITISH SOUTH AFRICA COMPANY v. DE BEERS MINES, charge on South African land. But they both contemplated a SWINFEN valid charge, i.e., a charge in accordance with the lex situs, which in Southern Rhodesia requires registration. They also contemplated an effectual licence under the local law. Surely, therefore, South Africa is the place with which the transaction has the most real connection and the local law applies: South African Breweries, Ld. v. King (1); Waterhouse v. Stansfield. (2) Assuming, however, that the agreements are governed by English law, the clog doctrine does not apply. In the first LIMITED. place the transaction was not a mortgage at all. It was purchase of debentures giving a right to an annuity commutable by the plaintiff company for a fixed amount: Attree. v. Hawe (3); In re Southern Brazilian Rio Grande Do Sul Ry. Co. (4) ; City of London Brewery Co. v. Inland Revenue Commissioners (5); Samuel v. Jarrah Timber and Wood Paving Corporation (6); Buckley on Companies, 9th ed. pp. 245, 258. The old debt was cancelled and the parties could bargain as they pleased: Reeve v. Lisle. (7) Secondly, if the transaction was a mortgage the debentures and the floating charge were on the terms of the agreements subject to our licence, so that when paid off the plaintiff company got back the very property mortgaged. Thirdly, the agreement to grant the licence was an independent transaction. Fourthly, in Southern Rhodesia the agreements created no charge for want of registration. The case does not therefore fall within the clog doctrine, which is not very intelligible and ought not to be extended: Samuel v. Jarrah Timber and Wood Paving Corporation. (6) If, however, there is a clog according to English law, it will not be enforced in the case of foreign land. The right to redeem is not a mere personal right. It is an equitable estate or interest in the property mortgaged: Casborne v. Scarfe. (8) A clog or fetter on this right is in the same category. It is either an equitable estate or a limitation or condition affecting an EADY J. 1910 BRITISH AFRICA v. DE BEERS SWINFEN equitable estate: Santley v. Wilde (1); Samuel v. Jarrah Timber and Wood Paving Corporation (2); Jennings v. Ward (3); London and South Western Ry. Co. v. Gomm. (4) This is exactly the class of equity that the Court does not enforce in the case of foreign land: Norton v. Florence Land and Public Works Co. (5); Martin v. Martin (6); In re Fitzgerald (7); Bank of Africa v. Cohen (8); Dicey on the Conflict of Laws, 2nd ed. pp. 500, 510, 810. The cases of Ex parte Pollard (9), Ex parte HoltLIMITED. hausen (10), Cood v. Cood (11), Paget v. Ede (12), and Mercantile Investment and General Trust Co. v. River Plate Trust, Loan and Agency Co. (13) were all instances of exercising jurisdiction in personam, which is the only ground of jurisdiction in these cases: Ewing v. Orr Ewing (14); Lord Portarlington v. Soulby (15); Norris v. Chambres. (16) Peninsular and Oriental Steam Navigation Co. v. Shand (17) turned on special facts, and in Campbell v. Dent (18) no question arose as to the land laws. MINES, The plaintiff company's case therefore fails, and on the counter-claim we are entitled to specific performance. Levett, K.C., in reply. If, as we contend, the agreements are forbidden by the charter, they are ultra vires and void: Lindley on Companies, 6th ed. p. 214. There can be only one proper law of a contract. Of course there can be two contracts in one document, as in Chamberlain v. Napier (19), but one contract cannot be governed by the different local laws applicable to its different subject-matter, though naturally the machinery of transfer and registration necessary to carry out the contract must conform to the local law. An issue of debentures may no doubt be a sale and purchase (1) [1899] 2 Ch. 474. (5) (1877) 7 Ch. D. 332. (6) (1831) 2 Russ. & My. 507. (8) [1909] 2 Ch. 129. (9) Mont. & Ch. 239; 4 Deac. 27, 275, 285. (19) 15 Ch. D. 614, 631. EADY J. transaction, but the present transaction was clearly an equitable swINFEN mortgage even on the Southern Rhodesian land, and the security was not subject to the licence. The clog doctrine therefore applies. With one exception the jurisdiction in personam is exercised in the case of foreign land where the equity is not repugnant to the express foreign law and the foreign Courts have not assumed jurisdiction. The exception is where the equity is merely based on the English doctrine of notice: Westlake's Private International Law, 4th ed. pp. 211, 214, 285; Ashburner on Mortgages, pp. 386, 520. The exception is illustrated by Norton v. Florence Land and Public Works Co. (1), Martin v. Martin (2), and Norris v. Chambres (3), which were all notice cases. Bank of Africa v. Cohen (4) turned on capacity. As to the counter-claim the agreements are void for uncertainty and perpetuity, and even if they are not void as ultra vires they are a direct breach of the plaintiff company's contract with the Crown. The Court does not enforce specific performance of a contract involving a breach of a prior contract: Fry on Specific Performance, 4th ed. p. 178; Willmott v. Barber (5); Manchester Ship Canal Co. v. Manchester Racecourse Co. (6) Lastly, as he who comes into equity must do equity, the defendant company cannot obtain the equitable relief of specific performance without giving effect to the equitable clog doctrine. Upjohn, K.C., in reply on the counter-claim. Uncertainty and perpetuity were not pleaded, but they are easily answered. As to uncertainty, Id certum est quod certum reddi potest. As to perpetuity, the agreements were personal contracts between the very parties now before the Court. The breach (if any) of the charter gives the Crown a remedy by scire facias, but the charter is not a contract with the Crown within Willmott v. Barber. (5) The last point is merely the clog argument in another dress. (1) 7 Ch. D. 332, (2) 2 Russ. & My. 507. (3) 29 Beav. 246; 3 D. F. & J. 583. Cur. adv. vult. (4) [1909] 2 Ch. 129. (5) (1880) 15 Ch. D. 96. (6) [1900] 2 Ch. 352; [1901] 2 Ch. 37. 1910 BRITISH SOUTH AFRICA COMPANY v. DE BEERS MINES, Feb. 10. SWINFEN EADY J. (after stating the nature of the case and the three points on which the plaintiff company relied in the claim and particulars). The questions therefore which I have to determine are whether the agreements are void as being ultra vires, or as amounting to a clog on the equity of redemption, and also whether, according to their true construction, they are intended to continue after repayment of all moneys advanced. The plaintiff company's contention that the agreements are ultra vires is based upon clause 20 of the charter, which provides that "Nothing in this our charter shall be deemed to authorize the company to set up or grant any monopoly of trade." It contends that the exclusive licence is a "monopoly of trade" within the meaning of this clause. The defendant company disputes this contention, and moreover alleges that even if the grant in question were forbidden by the terms of the charter it would not be ultra vires for the plaintiff company to grant that exclusive licence, although it might be ground for a scire facias at the instance of the Attorney-General. The charter was followed by a deed of settlement of the plaintiff company dated February 3, 1891, but this deed cannot extend the provisions of the charter, and indeed article 115 of the deed provides that the provisions of the deed are to be subject to and fully controlled by the provisions of the charter. The charter confers very wide powers upon the company; these are divisible into two classes, administrative and commercial, and the distinction between them is clearly maintained throughout the charter. With regard to its administrative powers and duties, the company is to the best of its ability to preserve peace and order, and may establish and maintain a force of police; it is to discourage and abolish the slave trade and domestic servitude, and prevent the sale of liquor to natives; not to interfere with any religion, except so far as may be necessary in the interest of humanity; in the administration of justice the company is to have regard to the customs or laws of the tribes; to furnish to a Secretary of State annual accounts of its expenditure for administrative purposes, and of all sums received by way of public revenue as distinguished from its EADY J. 1910 commercial profits; also an estimate for the ensuing year of its SWINFEN expenditure for administrative purposes, and of its public revenue. The company is also to provide such Courts and other requisites as may from time to time be necessary for the administration of justice. BRITISH AFRICA v. CONSOLI DATED The charter then confers very wide commercial powers upon the company (including expressly a power to make concessions DE BEERS of mining rights), and it is specially authorized to carry on any lawful commerce, trade, pursuit, business, operations, or dealing LIMITED. whatsoever in connection with the objects of the company. The charter also in terms empowers the company to hold and retain the full benefit of the concessions and agreements made by the chiefs and tribes therein referred to, and all the interests comprised in these concessions and agreements, and from time to time to acquire other rights and interests in other territories, lands, or property in Africa. Thus the administrative duties and powers of the plaintiff company rest on the authority conferred by charter, while its proprietary rights were acquired from and through the chiefs and tribes. It is in the exercise of its proprietary rights that it has agreed to grant the licence to mine for diamonds. It is not in dispute that the mines are vested in the plaintiff company, and that it can grant exclusive rights to any particular company or companies to work ascertained diamond fields, or to search for. diamonds, and when diamondiferous ground is discovered to mine for the stones in defined areas, and, apparently, however large these areas may be; but the contention is that such a grant, if extending over the whole area of ground of which it is the owner and granted to only one company, is void as amounting to a monopoly, which by clause 20 of the charter it is forbidden to grant. In my opinion this contention wholly fails. The provision of the charter is that the company is not authorized to set up or grant any monopoly of trade, and then follows a provision that the establishment of certain undertakings of a public nature, or the establishment of a system of patent or copyright, shall not be deemed monopolies for this purpose. This provision of the MINES, |