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claims to Tattersalls Limited, an association formed in order (inter alia) to adjudicate upon bets, whose decisions were enforced by the Jockey Club. The committee called upon the plaintiffs to attend on a specified day for the investigation of the complaint, whereupon the plaintiffs claimed an injunction to restrain the committee from investigating the dispute without the plaintiffs' consent and a similar injunction against the defendants to stop their proceeding with arbitration jebefore the committee, and the plaintiffs relied on the express agreement in this case as ousting the general authority of the committee. Mr. Justice Eve treated the paragraph in the book of rules governing the transactions between the parties as an integral part of the terms upon which alone would the plaintiffs do business, and one of the conditions was that disputes should go to the newspaper in which they advertised and not to the committee. The learned judge held that there was only one contract, and that one by way of gaming and wagering and void, and as such unable to be made the foundation of any successful application in the courts. It was further held that even if the contract were not tainted with illegality the court would not grant an injunction against Tattersalls but the plaintiffs would be left to recover from their clients such damages as they might ultimately be held entitled to. The committee was regarded as the recognised tribunal in these matters and if clients choose to appeal to it the plaintiffs must elect whether they will submit to arbitration or allow it to proceed in their absence. The actions therefore failed and were dismissed with costs. Société Anonyme, &c., du Touquet Paris-Plage v. Baumgart (136 L. T. Rep. 799; (1927) W. N. 78) is a decision by Mr. Justice Shearman which turned upon some losses at a casino at Paris-Plage, the plaintiffs being the proprietors of that casino to whom the defendant had given three cheques for a total of £400. The claim was by specially endorsed writ against the defendant as drawer and there was an alternative claim for money lent. The cheques had been given by the defendant in return for French currency and counters used for the purposes of gambling at the casino at games illegal in England but legal in France. The defendant contended that the consideration for the cheques was therefore illegal and that the plaintiffs could not recover either on the cheques or on the footing of money lent. Mr. Justice Shearman agreed that the cheques were given for an illegal consideration within the Gaming Act 1835, s. 1, and that the action on them was not maintainable. The learned judge, however, declined to hold that because the plaintiffs had taken cheques their claim for money lent also failed, and accordingly he gave judgment for the plaintiffs on this part of their case.

In the very early days of the last judicial year the Divisional Court had before it, on a case stated by justices, an interesting little question arising out of the law of HUSBAND AND WIFE, upon which there have been some doubts. Outerbridge v. Outerbridge (136 L. T. Rep. 303; (1927) 1 K. B. 369) arose out of an order for maintenance made in 1915 against a husband at the instance of his wife. Payments got into arrear and a summons was taken out for arrears and at the same time the husband sought to have the original order discharged on the grounds of his wife's adultery. When the two cases came on the husband succeeded in obtaining a discharge of the order, but the question of the arrears stood over for a time and was eventually settled by the justices ordering the husband to pay arrears up to the date on which they had found adultery to be proved. The doubts in these cases arise out of sects. 6 and 9 of the Summary Jurisdiction (Married Women) Act 1895. The former enacts that "no order" is to be made on the application of the wife if she has committed adultery. It has been thought by some that the order for payment of arrears came squarely within sect. 6. In sect. 9 the Act goes on to add that the payment of any sum of money directed to be paid by an order is to be enforced just as the payment of money is enforced under an affiliation order, and on this it was argued that when an order is not in existence an application for arrears under it cannot be made. The court drew a distinction, however, between an order made under the Act and an order for the enforcement of a payment due under the original order. It was held here that in these cases one is thrown back for enforcement on the procedure, not of the Act of 1895, but of the Act of 1872, the Bastardy Laws Amendment Act. Under sect. 4 of the latter, magistrates, on an order being disobeyed and no adequate distress being available, can send the defendant to prison up to three months. Mr. Justice Avory expressed some hesitation as to the possibility of an order made under the 1895 Act being enforced after it has been discharged, but the court as a whole supported the decision of the justices.

Amongst the INSURANCE cases which have been determined during the course of the past judicial year, the decision of the House of Lords in Lake v. Simmons (137 L. T. Rep. 233; (1927) A. C. 487) should not be overlooked. In this case a jeweller had insured against loss to jewels by theft under a policy which excepted "loss by theft or dishonesty committed by any customer or broker or broker's customer in respect of goods entrusted to them by the assured." Ellison, being a person who had on previous occasions bought things from the jeweller, fraudulently represented that she was the wife of a certain man (with whom she lived), and about to be related to someone else who was a very wealthy man, but who did not in fact exist. She was permitted to take away on these pretexts jewels worth large sums which she appropriated. In due course she was sentenced at quarter sessions in Exeter to hard labour. The insurers now pleaded the exception above set out. Mr. Justice McCardie held that Ellison had been fraudulent, and was guilty of larceny by a trick, small preliminary purchases by her being mere designs for ulterior purposes, and in this view the Court of Appeal concurred, Lord Justice Atkin dissenting. The House of Lords agreed thus far. On the meaning of the word "entrusted" Lord Haldane pointed out that it might have very different significations, according to circumstances, as when, on one hand, one entrusts something to a friend to hold while putting on an overcoat or, on the other hand, 66 entrusting to a broker may imply some definite contract. The noble Lord regarded Ellison as a mere intermediary or messenger who got no property in the pearls, and only got in a qualified sense any possession, and he held that there was no contract at all, or anything beyond the result of a trick played on a jeweller. Lord Sumner agreed that the woman was not a customer for the purpose of the exceptions clause, and Lord Blanesburgh built up his whole argument for agreement with Mr. Justice McCardie upon Ellison not being a customer. Lord Blanesburgh thought that the Court of Appeal, who by a majority had reversed Mr. Justice McCardie, should have noticed that reasons which might be apt enough to justify the inclusion of customers of the assured as such in the exception, had no application to brokers or their customers, and that in construing the clause no wider meaning could properly be attached to the word "customer" in one or other case.

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Glicksman v. Lancashire and General Assurance Company (136 L. T. Rep. 263; (1927) A. C. 139) is a House of Lords decision on burglary insurance which affirms a Court of Appeal decision upon which comment has already been made in these columns. The proposal form contained a question as to a previous rejection of a proposal for burglary insurance. The insured here were two partners, and they replied to the question "Yorkshire accepted, but proposers refused." A policy was issued and a burglary ensued. The facts brought to light were that when the appellant had previously carried on business alone another company had refused a proposal, and that the burglary happened at a time when he was again carrying on business alone. The company in this case roundly alleged that there had been no burglary, and no stock in trade, but the arbitrator, on a reference, found for the appellant to a loss amounting to £1656. It was held that the refusal by the insurance office of the proposal on a former occasion was a material fact and that it had not been revealed, and so the insurance company was under no liability. That the decision is eminently unsatisfactory is suggested by a paragraph in the judgment of Lord Dunedin, who, after referring to the company's agent keen on getting business and the client who could neither read nor write and could only sign his name, whose natural language was other than English, stated that there was an impar congressus. He continued: “I am left with this impression that those shall I call them attractive ?-qualities which we are prone to ascribe to the Hebrews, among whom Shylock has always been the prototype, have been quite as satisfactorily developed on the part of this insurance company as ever they were by the little Polish Jew." Lord Atkinson referred to the company's way of putting questions in ambiguous language. Lord Wrenbury spoke of the " mean and contemptible policy" of the company in taking premiums and refusing to pay on a ground which no one says is really material. Here, upon purely technical grounds, they, having in point of fact not been deceived in any material particular, avail themselves of what seems to me the contemptible defence that, although they have taken the premiums, they are protected from paying."

In regard to the accident policies, there is a decision in connection with a motor car which is of importance. James v.

British and General Insurance Company (137 L. T. Rep. 156; (1927) W. N. 106) brought before Mr. Justice Roche a policy taken out by the plaintiff, wherein there was indemnity against liability for accidental bodily injury to third parties, and there was a provision that the insurers would represent the plaintiff at an inquest and would defend police court proceedings. The plaintiff, while driving his car, collided with a motor cycle with two passengers, of whom one was injured and one killed. The injured man, in civil proceedings, obtained damages and costs and the plaintiff incurred expense thereby and also by attending the inquest on the person killed. Proceedings being taken against the plaintiff for manslaughter and unlawful wounding, he was convicted of manslaughter and again incurred costs. It was found at the trial that the plaintiff was drunk when the collision occurred. The insurers argued that they were not liable on the policies, as the plaintiff had committed criminal acts and had created a risk never in the contemplation of the parties. They urged that the causes of the collision were not accidental, and that a policy indemnifying the consequences of criminal acts would be contrary to public policy and void. Mr. Justice Roche was unable to accede to this view, holding that it would cut at the root of a large number of motor insurances, and would be a principle applicable to all who drove to the public danger. Mr. Justice Roche held that the conduct which brought about the criminal responsibility in these cases was negligence, and not intention, and this did not involve such a degree of criminality as made an indemnity improper. The learned judge did not think the drunken plaintiff morally worse than a person who in his sober senses drove recklessly and with indifference to other people's safety. Both were guilty of criminal conduct, and neither intended the consequences flowing therefrom. The plaintiff was held entitled to recover his several items of claim except the costs of the defence at assizes, which was not included in the policy.

In connection with life insurance there has been an important decision by Mr. Justice Acton in Looker and another v. Law Union and Rock Insurance Company Limited (ante, p. 66; (1927) W. N. 217) in which a question arose upon an affimative answer to the question in a proposal for insurance66 Are you now free from disease or ailment ?" The company conditionally accepted the proposal in which occurred the words: if the health of the life proposed remains unaffected, the policy will be issued on payment of the first premium. The risk of the company will not commence until receipt of the first premium and the directors meanwhile reserve the power to alter or withdraw this acceptance." Six days after this communication the proposer was taken ill and on the following day a friend of the proposer (who had an interest in the commission payable in respect of the insurance) filled in a cheque for the premium which the proposer signed. Three or four days more elapsed when this friend, learning that the cheque had not been posted, himself saw to this. The cheque was duly received by the company, the proposal was accepted, and it was stated that the policy would follow in due course. On the following day the proposer died. Thereupon his personal representatives claimed against the company for the £5000 insured, and the defendants refused payment, alleging that under the circumstances there had been no acceptance or, alternatively, that it had been conditional upon the health of the insured remaining unaffected between the proposal and the first payment of the premium. Mr. Justice Acton had thus to consider the rights of parties where a material change takes place between the time when a proposal is made and the time when a company accepts it. It is obvious that the change here was that at the first time the proposer was well and at the second time that he was so seriously unwell that he died within twenty-four hours of the company receiving his cheque. The learned judge held that there was no answer to the contention of the company that its notice of conditional acceptance intimated the condition that the proposers' health should remain unaffected. Again, the company successfully claimed that the documents protected them and that there had been a failure of a duty resting on all proposers of contracts of insurance such as that before the court-viz., the duty to inform the insurer of any material change in the nature of the risk. The decisions show that the materiality is dependent on the nature of the fact and not on whether the person concerned does or does not think that it is material. Looking at the circumstances of this particular case, Mr. Justice Acton held that the company were justified in refusing to pay.

The LANDLORD AND TENANT cases, as usual, cover a wide ground and bring to light facts of infinite variety. Metcalfe

v. Boyce (136 L. T. Rep. 606; (1927) 1 K. B. 758) tells us something about surrenders by operation of law where a county police constable was concerned. The county in the case at one time worked on the system of paying their men a grant in aid of rent and the house in dispute in this case had been occupied by S., a policeman, on a quarterly tenancy, and he paid rates and taxes. This went on until S. was moved to a new station when the defendant B. became constable in his place and the arrangement continued, B. drawing his grant, paying his rent and taking his receipt himself. Then a new system was adopted. The Chief Constable became the tenant of all houses occupied by policemen. The latter occupied merely as servants. The rents, rates and taxes were paid by the Chief Constable and deductions were made from the men's pay. Apparently this went on for some fourteen years without any formal notice to end the defendant's tenancy being given by either side. In due course the defendant qualified for retirement on pension, and he refused to give up the house and the Chief Constable, as plaintiff, sought possession on the basis that by operation of law the tenancy had been surrendered or assigned. On appeal from a County Court it was held by Justices Salter and MacKinnon that the facts justified an inference that an arrangement had been made between the defendant, the landlord, and the Chief Constable, by virtue of which the defendant surrendered his tenancy to the landlord and the landlord accepted the same, agreeing to take the Chief Constable as his tenant while the defendant agreed to occupy the house in future as a servant and not as a tenant. This case is worthy of notice when reliance is placed on sect. 3 of the Statute of Frauds, requiring assignments and surrenders to be in writing "or by act and operation of law." It indicates that a physical change of occupation is not essential if the occupation is changed in its nature. The court regarded the defendant as estopped from denying a surrender for the plaintiff had paid the rent and rates in fact. A case of a very unusual character came before Mr. Justice Eve in Horlick v. Scully (163 L. T. Jour. 298) where the problem turned on a repairing covenant in connection with a lake. The plaintiff was the landlord and the defendant the tenant, and the latter covenanted to keep and leave the pleasure grounds in good and proper order and condition. Amongst these grounds were two ponds and three lakes. These were a feature of the property and provided boating and fishing. The breaches of covenant alleged against the defendant were (a) mud and weeds in the lakes and ponds; (b) coarse fish therein; (c) no restocking of the lakes with trout. There was also complaint as to the condition of some stone curbing round the lakes. It may be said at once that this last complaint failed, the learned judge deeming it trivial. The claim as to the coarse fish was abandoned at the trial and so the decision resolved itself into a claim on the mud and weeds. There was evidence that at the date of the lease some mud was to be found in all the lakes, but they were in good fishing condition and two of the lakes had been cleared some nine years previously. One of the lakes received detritus from a river which entered it, and all of them had become very shallow, having less than the two and a half feet essential for fish welfare. The tenant having admitted liability to cut the weeds, Mr. Justice Eve held that the clearance of mud was not, as it were, a structural affair to be executed by the landlord. The words " proper order and condition" in connection with these lakes was treated as meaning the arrest of any injurious element which left the lakes out of order, but would not mean an obligation to clear out the lakes entirely. Mr. Justice Eve ordered that the lake which received the river detritus should be cleared to such an extent as would leave two and a half feet from the surface of the mud to the surface of the water. The same clearance was ordered in respect of a boating lake as regards a certain defined portion of it. The monetary liability was calculated to be £300 for one lake, plus a sum to be estimated by surveyors as to another lake plus £20 for trout stocking. O'Cedar Limited v. Slough Trading Company (137 L. T. Rep. 208; (1927) 2 K. B. 123) is another rather unusual case heard by Mr. Justice Branson, where the lessor compelled the lessee to agree in the lease not to use the premises demised in such a way as to render an increased premium necessary for the demised premises. The lessors subsequently used premises adjoining the lessees' premises for wood working, with the consequence that the lessees insurance went up from 3s. 5d. per cent. to 19s. 2d. The lessees took proceedings to recover the difference between these two figures on the footing of breaches of implied covenants not to do anything to increase premiums and not to derogate from their own grant. Mr. Justice Branson

regarded the fact that the lessor had put the lessee on this obligation as not resulting in a correlative obligation on the part of the lessor. He, however, observed that if the lessor's action had been such as to render it commercially impossible to insure the lessee's premises at all, some different considerations would have entered in, but he was unwilling to accept the contention to extend the principle of derogation from a grant to a case where the lessor had done something not unreasonable in itself or adversely affecting the demised premises in any physical manner or rendering them less fit for the conduct of the business carried on in them, and he gave judgment for the lessors.

(To be continued.)

FOREIGN MATRIMONIAL DECREES PRIVATE international law has always been fruitful of leading cases, and yet another has to be added to the list, by reason of the decision of the House of Lords in Salvesen or Von Lorang v. Administrator of Austrian Property (163 L. T. Jour. 490).

This case deals with the jurisdiction of a foreign country where the parties are domiciled to declare a marriage celebrated between them in another country null and void, on the ground that the marriage was celebrated without the formalities necessary to render the marriage valid according to the lex loci celebrationis.

The material facts of this case were shortly as follows: In June 1897, the appellant, a British subject, domiciled in Scotland, went through a form of marriage in Paris with an Austrian subject. This marriage, however, was void according to French law because the parties had not observed the formalities of, inter alia, residence and publication. In 1898 the parties settled in Germany, where they lived until the outbreak of war; the man thereupon joining the Austrian forces, and the appellant going to live in Switzerland. In 1919 both parties took up their residence in Germany until the end of the year 1923. In that year the Administrator of Austrian Property claimed the moveable property of the appellant in Scotland on the ground that she was an Austrian national. The holders of the moveable property thereupon brought an action in the Scottish courts to have the question determined as to who was entitled to the property, and the appellant claimed the property on the ground that her marriage was void, and that, therefore, she had never lost British nationality While this action was pending, the appellant instituted proceedings in the German courts, and obtained a decree of nullity on the ground that the marriage which had been celebrated in France was void according to French law by reason of the non-observance of certain essential formalities. This decree was relied on by the appellant in the proceedings in the Scottish court with regard to her property; but the administrator contended that the Scottish court was not debarred by the German decree from determining the question whether the marriage was in fact void according to French law, and he further contended that according to French law the marriage was not necessarily null and void. The administrator, moreover, alleged collusion between the appellant and the other party to the French marriage ceremony; but the courts held that no collusion was established. Had that been the case, the English courts would, of course, according to the well-known principle of private international law, have treated the judgment of the German court entirely as a nullity.

The whole of the facts, therefore, in the above case must be regarded quite apart from any consideration as to the effect of such matters as fraud or collusion.

The sole question which the House of Lords, therefore, was called upon to consider was whether where the court of the domicile of both parties to a marriage has pronounced their marriage to be invalid on the ground of nullity for want of formalities—and the italicised words must carefully be noted a court in this country where they are not domiciled can review that decision. In other words, is the foreign court in such circumstances competent to dispose conclusively and finally of the question as to the validity of the marriage, or is its decision, notwithstanding, open to review in the courts of this country?

In determining this question the fact that the courts of the domicile are not the only competent courts for the purpose of adjudicating upon the validity of the marriage would appear to be immaterial. Thus in Salvesen's case (sup.), inasmuch as the marriage was celebrated in France, the French courts would also apparently have had jurisdiction to adjudicate Second Sheet

upon its validity, but Lord Haldane apparently treated this factor as immaterial for the purpose of his judgment.

In order to determine the question raised in Salvesen v. Administrator of Austrian Property, it is necessary, as in determining any other point of law, to go back to fundamental principles.

It is a fundamental principle of private international law that a judgment in rem given by a competent foreign court having jurisdiction will be binding on all other courts. Thus Mr. Justice Blackburn in Castrique v. Imrie (4 H. L., at p. 427) says: When a tribunal, no matter whether in England or in a foreign country, has to determine between two parties and between them only, the decision of that tribunal, though in general binding between the parties and privies, does not affect the rights of third parties. But when the tribunal has jurisdiction to determine not merely on the rights of the parties, but also on the disposition of the thing, and does in the exercise of that jurisdiction direct that the thing and not merely the interest of any particular party in it, be sold or transferred, the case is very different. It is not essential that there should be an actual adjudication on the status of the thing." After thus explaining the distinction between a proceeding in rem and a proceeding in personam, Mr. Justice Blackburn goes on to indicate the effect of a judgment in rem delivered by a foreign court : We think," the learned judge says (ibid., at p. 429) "the inquiry is, first, whether the subject-matter was so situated as to be within the lawful control of the State under the authority of which the court sits; and, secondly, whether the sovereign authority of that State has conferred on the court jurisdiction to decide as to the disposition of the thing and the court has acted within its jurisdiction. If these conditions are fulfilled, the adjudication is conclusive against all the world."

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Briefly then, the principle is that a judgment in rem, delivered by a foreign competent court, having jurisdiction, will be conclusive in these courts. There are, of course, certain qualifications of this principle, where, for example, fraud is proved, or where it is shown that the foreign court has acted contrary to the principles of natural justice, but a consideration of these qualifications is not material for our purpose.

Now judgments in rem may be divided into various categories, and within one of these categories come judgments as to status.

Judgments declaring a marriage dissolved, or granting a decree of judicial separation, are clearly judgments as to status, and accordingly judgments in rem. 66

A

Thus Lord Dunedin says in Salvesen's case : All are agreed that a judgment of divorce is a judgment in rem. The first remark to be made is that neither marriage nor the status of marriage is in the strict sense of the word a res, as that word is used when we speak of a judgment in rem. res is a tangible thing within the jurisdiction of the court, such as a ship or other chattel. A metaphysical idea, which is what the status of marriage is, is not strictly a res, but it— to borrow a phrase-savours of a res, and has all along been treated as such."

Is a judgment of nullity, however, to be considered as a judgment as to status, and if so, is the characteristic of a judgment for nullity the same, whatever the grounds on which the judgment for nullity may be based? The House of Lords, dissenting from the Court of Session, have, in Salvesen's case, answered both these questions in the affirmative.

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Reference may usefully be made to two passages in the judgments, respectively of Lord Haldane and Lord Dunedin. Thus Lord Haldane, in speaking of views taken by the Lord President in the First Division, says: The Lord President held that the principle [as to judgments in rem] applies to a decree of divorce, making it conclusive of the dissolution of the marriage-at all events, if the grounds of the divorce was one or other of those recognised by the law of Scotland, namely, adultery and desertion. But he limits the application of the principle. It applies, in his view, to a decree of judicial separation, for this alters the married status; it applies also to a decree of declaration of marriage. He thinks, too, that a decree of nullity founded on the impediment of impotency also falls within the principle. This is, indeed, in his view, not a bar to the constitution of marriage, but only a resolutive condition of the contract, invalidating by non-performance a marriage that was complete, and assimilating the case to divorce. But the Lord President goes on to say that, as in other instances, nullity proceedings, on certain grounds, may be instituted by third parties having interest, the principle under discussion cannot be one of

universal application. He therefore thinks that a sentence of nullity on the ground of insanity, propinquity, prior marriage, or non-compliance with the lex loci, is not a judgment disposing of married status and so a judgment in rem. There does not appear to be any reason why a judgment of nullity, even on such restricted grounds as the Lord President mentions, should not be regarded as disposing of the status of married persons [and therefore being a judgment in rem.]"

Again, Lord Dunedin says: "Now the learned judges (in the court below) make this distinction. They say that in an action for divorce you have to do with a res, to wit, the status of marriage, but that in an action for nullity there is no status of marriage to be dealt with, and therefore no res. Now it seems to me that celibacy is as much a status as marriage. I notice that in the Oxford Dictionary the word 'status is defined, inter alia, as 'the legal standing of a person; condition in respect of, e.g., liberty or servitude, marriage or celibacy, infancy or majority.' The judgment in a nullity case decrees either a status of marriage or a status of celibacy."

It has been laid down in more than one decision, delivered by the House of Lords and the Privy Council, that the courts where the parties are domiciled are competent courts for granting the parties a decree of dissolution or separation, and that where a decree has been pronounced in such circumstances by a foreign court, the decree will be binding in these courts, at any rate, where the grounds on which the decree has been made are such as are recognised by the latter: (Le Mesurier v. Le Mesurier, 72 L. T. Rep. 873; (1895) A. C. 517; Lord Advocate v. Jaffrey, 124 L. T. Rep. 129; (1921) 1 A. C. 146; Attorney-General for Alberta v. Cook, 134 L. T. Rep. 717; (1926) A. C. 444).

Salvesen v. Administrator of Austrian Property (sup.) may now be regarded as having extended the above principle to decrees for nullity, even where the decree is founded on the fact that the marriage was solemnised without the observance of certain essential formalities, and where such a decree is pronounced by a competent court in the country where the parties are domiciled, the decree will in general be regarded as final and conclusive in these courts.

If some of the earlier cases are examined it will be observed that the view is taken in them that in nullity suits the courts of She country of domicile have no jurisdiction, and that even if they nave such jurisdiction, our courts are not bound by the decrees of the courts of the foreign country in which the parties may have been domiciled: (cf. for example, the observations in Niboyet v. Niboyet, of Lord Justice James, 39 L. T. Rep. 486; 4 Prob. Div., at p. 9, and of Lord Justice Brett, and see also Simonin v. Mallac, 2 Sw. & Tr. 67). As to Niboyet v. Niboyet, however, it may be observed that that case, decided that domicile was not the basis of jurisdiction in divorce, a principle which has since been overruled; and as to Simonin v. Mallac and other similar cases, depending for their determination on the law as it stood prior to the passing of the Matrimonial Causes Act 1857, that these cases were determined at a time when the general view of the law was that a marriage could not be dissolved by those courts at all, and much less by a foreign court, such a marriage, if dissoluble at all, being only rendered so by a private Act of Parliament.

Is the principle of Salvesen's case, however, to be read as subject to the qualification that, when the marriage has been celebrated in England or Scotland, the English or Scottish courts, as the case may be, will consider that they are not debarred by a decree of nullity, granted in a foreign country where the parties are domiciled, from adjudicating upon the validity or otherwise of the marriage? If reference be made to Ogden v. Ogden (1908, P. 46), it will be seen that the English courts did not treat the decree of nullity pronounced by the French courts as conclusive, the marriage having been olemnised in English form in England.

Ogden v. Ogden, however, was unfavourably commented upon by Lord Merrivale, in delivering the judgment of the Privy Council in Attorney-General for Alberta v. Cook (sup.), and also by Lord Phillimore in Salvesen's case (sup.), and it is doubtful whether it is to be regarded as good law.

It would seem, therefore, that even where the marriage has been celebrated in England or Scotland, the English or Scottish courts, as the case may be, will concede jurisdiction to a foreign court, which has granted a decree of nullity to the parties domiciled within the jurisdiction of the latter, and that such a decree will be just as binding as it would be if the marriage had been celebrated in a foreign country.

THE CONVEYANCER

Enfranchised Land-Legal Estate

WHEN Copyhold or customary freehold land has been enfranchised under the Law of Property Act 1922, it becomes necessary to ascertain in whom the freehold estate in fee simple was vested on or immediately after the 1st Jan. 1926. The Twelfth Schedule to the Act of 1922, sub-s. (8), as amended by the Law of Property (Amendment) Act 1924, Second Schedule, par. 4, provided that on the enfranchisement of any land by virtue of the Act of 1922, (a) if there is a copyholder in fee (not being a mortgagee) the freehold estate in fee simple shall vest (subject as provided in this schedule) in that person; (b) if there is no copyholder in fee the freehold estate in fee simple shall (subject as provided in this schedule) vest in the person who immediately before the commencement of this Act had the best right to be admitted as copyholder in fee otherwise than as mortgagee, but such person shall (save as hereinafter provided) be personally liable to pay the fines and fees which would have been payable by him on admittance; and if the last person who was admitted as copyholder in fee (being a trustee) has died before the commencement of this Act (whether or not having disposed of the land by will), his personal representative, if any, shall be deemed to have had a better right to have been admitted than the devisee or customary heir. But the aforesaid enactments are subject to the provisions of the First Schedule to the Law of Property Act 1925, Part II., ss. 3 and 6, the former of which provided that where immediately after the commencement of that Act any person was entitled to require any legal estate (not vested in trustees for sale), to be conveyed to or otherwise vested in him, such legal estate should by virtue of that part of that schedule vest in manner thereinafter provided. And by sect. 6 (c), where at the commencement of that Act, or by virtue of any statute coming into operation at the same time, the land is settled land, the legal estate affected is to vest in the tenant for life or statutory owner, entitled under the Settled Land Act 1925 to require a vesting deed to be executed in his favour, or in the personal representative, if any, in whom the land might be vested, or the Public Trustee, as the case might require, but subject to any mortgage term subsisting or created before that Act; and by sub-sect. (d) in any case in which the preceding subparagraphs do not apply the legal estate affected is to vest in the person of full age who, immediately after the commencement of that Act, was entitled to require the legal estate to be vested in him, but subject to any mortgage term subsisting or created by that Act. Then follow certain exceptions to the vesting. Having regard to the aforesaid provisions of Part II. of the First Schedule to the Law of Property Act 1925, unless the copyholder in fee, or the person having the best right to be admitted as copyholder in fee, is also the estate owner, it would seem that the freehold estate in fee simple will not vest in such copyholder, or person having the best right to be admitted, but will vest in the estate owner, who will usually be the tenant for life.

Conveyance by Estate Owner

THERE is one basic principle of the Law of Property Act 1925 which some practitioners are somewhat slow to appreciate, namely, that land is to be conveyed by, or in the name and on behalf of, the estate owner, that is, the owner of the legal estate, and not as formerly in exercise of a power by a person often having no estate. Thus sect. 7, sub-sect. (4), of the Act, with regard to cases which, under the Lands Clauses Act, or the Schools Sites Act, or any similar statute, the fee simple was liable to be divested by a person who was not the estate owner, provides that the power is, when practicable, to be exercised in the name, and on behalf of, the estate owner. Again, by sect. 29, sub-sect. (4), it is provided that where at the commencement of the Act an order made under sect. 7 of the Settled Land Act 1884 is in force (that is the section under which the court could give leave to a tenant for life of the proceeds of sale of land limited in trust for sale to exercise the powers of a tenant for life), the person on whom any power is thereby conferred shall, while the order remains in force, exercise such power in the names and on behalf of the trustees for sale, in like manner as if the power had been delegated to him under that section. Then by sect. 88 it is provided that where an estate in fee simple has been mortgaged by the creation of a term of years absolute, or by a charge by way of legal mortgage, and the mortgagee sells under his statutory or express power of sale (a) the conveyance by him

shall operate to vest in the purchaser the fee simple in the land conveyed, subject to any legal mortgage having priority to the mortgage in right of which the sale is made, and to any money thereby secured, and thereupon (b) the mortgage term, or the charge by way of legal mortgage and any subsequent mortgage term, or charges, shall merge or be extinguished as respects the land conveyed; and such conveyance may, as respects the fee simple, be made in the name of the estate owner in whom it is vested. The learned editors of Wolstenholme and Cherry's Conveyancing Statutes, 11th edit., p. 277, in a note to that section, say that the option to convey in the mortgagors' name will not usually be exercised, and we believe that the practice in conveyances by mortgagees is to ignore the mortgagor, but it does not seem to the present writer to be quite orthodox, as the legal estate in fee simple is in the mortgagor. It is true that by sect. 123 of the Act it is provided that the donee of a power of attorney may, if he thinks fit, execute or do any assurance, instrument, or thing in and with his own name and signature, and under his own seal, where sealing is required by the authority of the donor of the power, and that every assurance, instrument, and thing so executed and done shall be as effectual in law to all intents as if it had been executed and done by the donee of the power, in the name and with the signature and seal of the donor thereof. But sub-sect. 2 provides that sect. 123 is to operate without prejudice to any statutory direction that an instrument is to be executed in the name of an estate owner.

Reversion-Reversionary Leases

THE present writer has always felt some difficulty in arriving at the true meaning of the word "reversion." According to Stroud's Judicial Dictionary, vol. 3, p. 1754,

In

Reversion '-reversio-commeth of the Latine word revertor, and signifieth a returning againe (Co. Litt. 142b)." A Reversion" is the undisposed of interest in land which reverts to the grantor after the exhaustion of the particular estates-e.g., for years, for life, or in tail-which he may have created. "There cannot in the usual and proper sense of the term be a reversion expectant upon an estate in fee simple" (per Lord Selborne, in Attorney-General of Ontario v. Mercer, 49 L. T. Rep. 312; 8 App. Cas. 767). So far so good, but in dealing with reversionary leases it is very easy to be puzzled. Leases are not infrequently granted to commence in reversion upon the determination of an existing lease. It might be thought that such a reversionary lease amounted to an assignment of the reversion expectant on the existing lease. That, however, is not so. It was decided in Smith v. Day (2 M. & W. 284) that where A., being seised in fee, leased premises to B., for sixty-one years, and afterwards granted a lease to C., of the same premises, to commence at the expiration of the sixty-one years, that by the lease to C. A. did not part with his reversion so as to disturb his right to distrain for rent due from B. under his lease. Mann, Crossman, and Paulin Limited v. The Registrar of the Land Registry (117 L. T. Rep. 705; (1918) 1 Ch. 202) it was held by Mr. Justice Neville, that the interesse termini, which a reversionary lease for a term to commence more than twentyone years after its date confers on the lessee, is not an executory, but an immediate vested interest. Therefore, that such a lease does not offend the rule against perpetuities. The law in this respect, however, has been altered by sect. 149 of the Law of Property Act 1925, which abolished the doctrine of interesse termini, and provided that, as from the commencement of that Act, all terms of years absolute, whether created before or after such commencement, should be capable of taking effect, at law or in equity, according to the estate interest or powers of the grantor, from the date fixed for commencement of the term, without actual entry. And further (sub-sect. (3)) that the term at a rent or granted in consideration of a fine, limited after the commencement of that Act, to take effect more than twenty-one years from the date of the instrument purporting to create it, should be void; but that sub-section was not to apply to any term taking effect in equity under a settlement (such as a term for raising portions), or created out of an equitable interest under a settlement, or under an equitable power for mortgage, indemnity, or other like purpose; but nothing in the Act was to affect the rule of law that a legal term, whether or not being a mortgage term, might be created to take effect in reversion expectant on a longer term, which rule was thereby confirmed. Akin to this subject is that of concurrent leases, that is, leases granted for a term which is to commence before the expiration or sooner determination of a previous lease

of the same property. It may be granted either to the same lessee, or to another person. If granted by deed to another person it passes an actual reversion. In Harmer v. Bean (3 C. & K. 307) A. let a house to B. as tenant from year to year, and afterwards granted a lease by deed to C. of the house and other property for twenty-one years, and it was held that this transferred the reversion to C.-and see Wordsley Brewery Company v. Halford (90 L. T. Rep. 89). If the second lease is granted to the same lessee it operates as an implied surrender of the previous term, and takes effect as a lease in possession for the new term. In Re Moore and Hulme's Contract (106 L. T. Rep. 330; (1912) 2 Ch. 105) leaseholds were mortgaged by sub-demise for the residue of the original term of ninety-nine years, except the last day. The following day, by another mortgage, they were subdemised to a second mortgagee for the residue of the original term, except the last day, subject to the first mortgage. The second mortgage was paid off during the continuance of the first mortgage, and the second mortgage deed was handed back to the mortgagor, and subsequently a receipt was indorsed thereon for all principal money and interest secured thereby. A purchaser of the leasehold property from the mortgagor declined to complete without a formal surrender of the term created by the second mortgage, and it was held by Mr. Justice Joyce that he was entitled to such a surrender. His Lordship, in the course of his judgment, said: "I think that a legal estate or interest did pass to the second mortgagee. I think that Worrall (that is the second mortgagee), acquired a legal reversion upon the term created by the first mortgagee. I think he got a legal term under his mortgage. If the money secured by the earlier mortgage had been paid to the first mortgagee on the date fixed for payment I think that the second mortgagee would have had a right to the actual possession of the leasehold premises, and if the lease granted by the first mortgage had been terminated in any manner during the continuance of the second mortgage, the second mortgagee would have been entitled in possession to the residue of the term created by the mortgage."

Tenants for Life-Covenants for Title

BEFORE 1926 a tenant for life when selling settled land usually conveyed as beneficial owner, qualifying the covenants so implied by a proviso that they should not extend to the acts and defaults of any person other than the vendor and those claiming through or in trust for him. The changes introduced by the new legislation, which have resulted in equitable interests being withdrawn from the vendor's title, have given rise to the question whether a tenant for life should now sell as beneficial owner, qualifying the covenants so implied as was the custom before the new law came into operation, or whether he should sell as trustee. The correct method of sale appears to depend on whether the land to be sold was settled by an instrument coming into operation before 1926 or no. The Settled Land Act 1925, s. 110 (2), provides that, in the case of a settlement subsisting at the commencement of the Act, a purchaser shall be concerned to see that the person in whom the settled land is vested is the person in whom it ought to be vested as tenant for life or statutory owner. A purchaser in such a case has to investigate the beneficial title of the tenant for life, and if it appears that the vendor is beneficially interested in the property as having a life interest or as being tenant in tail there is no objection to the tenant for life giving the covenants implied by selling as beneficial owner restricted in the usual ways. Where the settlement arises after 1926 a quite different situation exists. A purchaser is debarred from going behind the vesting deed to look at the trust instrument, so he cannot know the nature of the tenant for life's interest. The vendor may be practically an absolute owner, subject only to trifling family annuities, or he may be merely the statutory owner, who has no beneficial interest whatsoever; the purchaser having only the vesting deed before him cannot know. In such a case, unless the purchaser otherwise stipulates in the contract of sale, he must accept a conveyance from the tenant for life as trustee. The purchaser is in no worse position than if he was buying from a personal representative or mortgagee, and unless the equitable title is disclosed there seems no other arrangement which would not often add unreasonably to the burdens of a tenant for life who is only a bare trustee. The Encyclopædia of Forms and Precedents and both Prideaux and Key and Elphinstone's Precedents make a tenant for life sell as trustee where the property becomes settled after 1925, and this seems now to be the general practice.