(1878, 38 L. T. Rep. 281; 7 Ch. Div. 815) a covenant to repair on the part of the lessor carries with it an implied licence to enter upon the premises and to occupy them for a reasonable time to do what he has undertaken to do, it would seem perhaps equally reasonable that such a licence should also be implied to enable him to enter at reasonable times for the purpose of finding out whether what he has undertaken to do is necessary or not. If this had been the law-and it is apparently now much too late to regard this as possible-a good deal of difficulty in dealing with cases of this class would probably have been saved. But, on the other hand, it might no doubt expose tenants to a certain amount of annoyance or vexation from which they are now free. E. F. COPYHOLDS AND THE NEW LAW OF PROPERTY ACTS

QUESTIONS have arisen as to when and what fines are payable to the lords of manors since the coming into operation of the new Law of Property Acts.

The Law of Property Act 1922 was amended by the Law of Property Act 1924 and, as so amended, came into force, by virtue of sect. 202 of the Law of Property Act 1925, on the 1st Jan. 1926. Sched. 12 of the Act of 1922, as amended by the Act of 1924, sets out the effect of enfranchisement of copyholds made by those Acts. In the first place the land is not thereafter to be subject to any custom whatsoever, but shall be governed as to descent on death and intestacy and devolution on death by the provisions of the Acts relating to freehold land, and, amongst other things, it is enacted that every mortgage of the copyhold estate in the land shall become a mortgage for a term of years absolute (i.e., a term of 3000 years without impeachment of waste), subject to a proviso for cesser corresponding to the right of redemption subsisting under the mortgage.

On the 1st Jan. 1926 the person standing tenant on the court rolls of a manor would either be the beneficial owner thereof, a mortgagee, or a trustee, and, of course, it might be that the last person who was admitted had died, and on the day named no person had been admitted in his place. We leave out of consideration, for present purposes, the position of infants and deal only with common cases.

Clause (8) of Sched. 12 referred to reads, as amended, as follows, that is, so far as the cases we are dealing with are concerned :

"(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 a 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; 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 be admitted than the devisee or customary heir. "(f) If the copyholder in fee is a mortgagee, the freehold estate in fee simple shall (subject to the term of years absolute of any mortgagees) vest in the person entitled to the equity of redemption.

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(g) If a copyholder in fee, or other person entitled to an interest corresponding to a legal estate, is a trustee for a corporation or other person absolutely and beneficially entitled, the freehold estate in fee simple or other corresponding legal estate (as the case may be) shall vest in the corporation or other person so entitled.

"(h) If a person has under the Limitation Acts acquired a customary estate corresponding to a legal estate, then a legal estate corresponding to the customary estate so acquired shall vest in him."

The above clause and sub-clauses are followed by nine provisos, the first leaving it to the court to decide questions that may arise as to who is the person having the best right to be admitted, and to make an order vesting the fee simple in some person when the proper person to be admitted cannot be found or ascertained. Proviso ii. deals with settled land which is to vest in the tenant for life upon the trusts of the settlement and also with a fee simple conditional. Proviso iii. relates to the case of infants; iv. with undivided shares, and

v. with trusts for sale. Proviso vi. says that, where under the provisions of this schedule the freehold estate in fee simple is (subject or not to any mortgage term) made to vest in any person who was not the copyholder in fee at the commencement of this Act, then such person shall be deemed to have been admitted tenant to the inheritance immediately before such commencement, and 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 (viii.) if at the commencement of this Act there is a copyholder in fee (whether or not being a mortgagee), then notwithstanding that, by virtue of this Act, the freehold estate in fee simple is made to vest in some other person who has not been admitted to the inheritance, but is deemed to have been so admitted, no fines or fees shall be payable on that account. From the above it would seem to follow that if on the 1st Jan. 1926 there was a copyholder on the court rolls who was neither a trustee nor a mortgagee the fee simple will vest in that person, and, except for the right of compensation in respect of manorial incidents when extinguished, and other rights reserved as to minerals, franchises, royalties, or privileges of markets, warren, &c., where he has them, the lord will cease tohave any interest in the land.

If there is no copyholder, then the fee simple vests in the person having the best right to be admitted, otherwise than a mortgagee, but such person shall be personally liable to pay the fines and fees which would have been payable by him on admittance. That seems just and reasonable, because the lord is entitled to have a tenant on the court rolls in respect of each tenement, and it would not be right for the owner to escape payment of such fines and fees as would have been payable on his admittance. Where there is a living tenant on the court rolls, of course, it is different, inasmuch as the lord has received all fines and fees due to him up to the date of the enfranchisement brought about by the new Acts. This clause further provides that if the last person who was admitted as copyholder in fee (being a trustee) has died before the commencement of the Act, his personal representative, if any, shall be deemed to have had a better right to be admitted than the devisee or customary heir. The reason for this is that the Conveyancing Act 1881, s. 30, which provided that trust estates should devolve upon the personal representatives, was, by the Copyhold Act 1894, s. 88, made not to apply to copyholds, so that on the death of a trustee of copyholds his personal representative had no right to be admitted, the land devolving upon the devisee where there was one, and in the case of an intestacy, upon the heir. It will be observed that this clause merely states that the personal representative shall be deemed to have had a better right than the devisee or heir, so that the fee simple would vest in such personal representative in such a case. This relates, however, to the vesting of the trust estate. A further question might be asked here, and that is, whether the person who was beneficially entitled to the land under the trust had not a better right to have the fee simple, especially as clause (g) provides that if a trustee is on the court rolls the fee simple shall vest in the person beneficially entitled.

If there is a copyholder in fee who is a trustee, then, as has been already pointed out, the fee simple vests in the corporation or person beneficially entitled. At first sight, it would appear that proviso vi. applies to such a case, and that the beneficial owner would be liable for the fines and fees that would have been payable by him on admittance, but on further consideration it would seem that the proviso only refers to the case where there is no copyholder on the rolls, and that proviso viii. makes it clear that, where there is a copyholder in fee in whom the fee simple does not vest, the person in whom it does vest is not liable for the payment of any fine, notwithstanding he is deemed to have been admitted. This, for the reasons before stated, is just, because the lord loses no fine where he has a tenant, and he receives compensation for loss of future fines.

There will doubtless be cases where copyhold property was sold late in the year 1925 and the purchaser was not admitted in that year. He cannot now be admitted, the land having been enfranchised by the Acts. The vendor on the court rolls would, it seems, become a trustee for the purchaser, so that under proviso (g), above set out, the fee simple would vest in the purchaser and no fine would be payable.

In the case where a mortgagee was the admitted tenant, the fee simple would under proviso (f) vest in the person entitled to the equity of redemption, and there again no fine would be payable.

WINDING UP A FOREIGN COMPANY

A CORPORATION or company incorporated abroad under another jurisdiction is not a company 66 formed " 66 or registered" under the Companies Acts 1908-1917. In English law, therefore, it is 66 an unregistered company." The principles upon which such a company may be wound up in England are as follows:

1. If the foreign company has a branch office and assets in this country, it may be wound up here: (Re Commercial Bank of India, L. Rep. 6 Eq. 517; Buckley on Companies Acts, 10th edit. (1924), p. 554).

2. If the foreign company is being wound up in the country of its incorporation, the English courts still have jurisdiction, if the company is within rule 1, to make an ancillary windingup order: (Re English, Scottish, and Australian Chartered Bank, 69 L. T. Rep. 268; (1893) 3 Ch. 385; Buckley, ibid.).

3. If the foreign company has no branch office or assets, but merely has agents in this country, there is no jurisdiction to wind it up in England: (Re Lloyd Generale Italiano, 29 Ch. Div. 219; Buckley, ibid.).

4. If the foreign company, which is within rule 1, has been dissolved in the country of its incorporation, it has been suggested that it may still be wound up here, under Companies (Consolidation) Act 1908, s. 268 (iii.) (a): (per Lord Wrenbury in Russian Bank, &c., v. Comptoir d'Escompte, &c., 132 L. T. Rep. 99; (1925) A. C. 112, at p. 149).

1. That a foreign company may, under certain circumstances, be wound up in England, was laid down in Re Commercial Bank of India (L. Rep. 6 Eq. 517). A joint stock company formed in India, registered in India, and having its principal place of business in India, and a branch office and agent in England, Lord Romilly ordered to be wound up here: "I think I have jurisdiction to make the order: if the company is not wound up here, these persons will not be able to get their money." This decision has been followed

in a multitude of other cases. In Re Matheson (1884, 51 L.T. Rep. 111; 27 Ch. Div. 225) the principle was applied to an unregistered joint stock company formed and having its principal place of business in New Zealand, but having a branch office, agents, assets and liabilities in England. If the company could not be wound up in England, "there might be no means by which the English creditors could obtain payment of their debts": (per Mr. Justice Kay). "Is it to be said,” he continued, "that a company formed in a foreign country, which chooses to carry on business, have assets, and contract debts in this country, does not come within the spirit, as it clearly comes within the letter, of the 199th section? (i.e., of the Companies Act 1862). But a winding-up order had already been made in New Zealand. This did not affect the matter, said the learned judge: “This court upon principles of international comity would no doubt have great regard to that winding-up, and would be influenced thereby, but the question of jurisdiction is a different question, and the mere existence of a winding-up order made by a foreign court does not take away the right of the courts of this country to make a windingup order here, though it would no doubt exercise an influence upon this court in making the order." In the case of Re Mercantile Bank of Australia (67 L. T. Rep. 159; (1892) 2 Ch. 204), where a foreign company had not a registered office in England, but had a place of business here, counsel both for the petitioners and for the company admitted that it could not be argued that there was no jurisdiction to wind up the company here. In the case of Re Jarvis Conklin Mortgage Company (1895, 11 Times L. Rep. 373) the headnote states: Semble, the court has jurisdiction to entertain a petition for winding up a foreign company, some of the shares being held, and there being some uncalled capital in this country." The company was incorporated in Missouri for lending money on American land. There was a branch office here. A year previously the company began liquidation proceedings in America. It was not suggested that liquidation in America would not be efficient or that assets could not be got in. Mr. Justice Romer dismissed the petition on the ground that it was not required. He did not decide the point as to jurisdiction, but, in view of the previous cases, he no doubt had jurisdiction, though, in the exercise of his discretion, he declined to exercise it. The general principle was upheld and applied by Mr. Justice Byrne in the case of Re Syria Ottoman Railway Company (1904, 20 Times L. Rep. 217). The company was formed in Turkey to work a Turkish concession for the construction of a Syrian railway. "It is true that the company is a foreign company, but it is one

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.. having all its shareholders in England, having all its assets there are to be remitted there, having for years past had an office only in London. Its affairs have been conducted as though it were an English company. There is ample authority for saying that a company incorporated in another jurisdiction, but not in this country, whose principal place of business is in another jurisdiction, but which has an office and assets here, may be wound up under the English Acts." This principle applies wherever the foreign country in question is situate, and whether or not it is part of the British Empire.

2. The relation between concurrent winding-up proceedings, i.e., proceedings instituted both here and in the country of incorporation, was discussed by Mr. Justice North in Re Commercial Bank of Australia (1886, 55 L. T. Rep. 609; 88 Ch. Div. 174). A banking company incorporated in Australia had a branch office in London. There were many English creditors and English assets. The company stopped payment, and a provisional liquidator was appointed to realise and to protect the English assets. The petitions were ordered meanwhile to stand over, and when they came on again for hearing, it was stated the winding-up proceedings had been instituted in Australia and that a provisional liquidator had been appointed there. Of a winding-up order, however, there was not sufficient evidence. It was held that, despite the proceedings instituted in Australia since the presentation of the English petitions, the court had jurisdiction to make the order. The creditors were not to be left to recover their debts in an Australian winding-up. No special directions were inserted in the order, but the opinion was expressed that the winding-up here will be ancillary to a winding-up in Australia. I shall take care that there shall be no conflict between the two courts, and I shall have regard to the interests of all the creditors and all the contributories. [The Australian petition] may affect the course of the winding-up, but it cannot affect the jurisdiction."

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Similarly, in Re Queensland Mercantile Agency Company Limited (1888, 58 L. T. Rep. 878), a winding-up order of a Queensland company having been made in Queensland, a winding-up order was shortly afterwards made to wind up the same company in England, and was directed to be ancillary to the colonial order. An action pending in the Scots courts by the Australian Investment Company (a Scots company) against the Queensland company was stayed, because it was more convenient that the basis of the claim-fraudulent and improper investment-should be investigated in the liquidation than in the Scots action. If the Australian Investment Company had gained any priority or security, it would be preserved in the winding-up.

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The converse case of a colonial winding-up being ancillary to an English winding-up was considered in North Australian Territory Company Limited v. Goldsborough and Co. Limited (1889, 61 L. T. Rep. 717). The registered office was in England, the branch office and the bulk of the business in Australia. The company resolved to wind up voluntarily in England. Shortly afterwards a compulsory winding-up order was made in Australia. Held, "the compulsory winding-up in Australia did not supersede or interfere with the voluntary winding-up in this country." Mr. Justice Kay said: Any order made by the Australian courts for winding-up in Australia would merely be ancillary, just as in the converse case, an order made in this country for winding up an Australian company could only be ancillary to any winding-up taking place in Australia." The theory of concurrent liquidations was further examined by the Court of Appeal in Re English, Scottish, and Australian Chartered Bank (69 L. T. Rep. 268; (1893) 3 Ch. 385). The bank's principal place of business was in Australia. Having stopped payment, it was ordered to be wound up here. A scheme of reconstruction was proposed, and Mr. Justice Vaughan Williams ordered particulars and numbers of proxies for and against the scheme to be telegraphed from Australia. These votes being counted, the scheme was carried and sanctioned. The learned judge was upheld. His view was this: "Where there is a liquidation of one concern, the general principle is ascertain what is the domicile of the company in liquidation; let the court of the country of domicile act as the principal court to govern the liquidation; and let the other courts act as ancillary, as far as they can, to the principal liquidation." This was a principal liquidation, and, therefore, "I am bound to make provision for creditors in all parts of the world coming in and being heard if they think fit." Hence, the objection to counting the proxies was overruled.

3. The limits to the exercise of jurisdiction were laid down in Re Lloyd Generale Italiano (29 Ch. Div. 219). It was a marine insurance company. There were a number of English creditors, but no assets in England. The company was wound up in Italy, and it was alleged that the liquidators were desirous of sending money to England to pay a dividend to the English creditors, and accordingly wished for a duly appointed English liquidator. There was no branch office in England, and Mr. Justice Pearson declined to make the order. There is no jurisdiction to wind up a foreign company in England, which has carried on business in England by means of agents, but without a branch office. "The jurisdiction to wind up a company is a purely statutory one under the Companies Acts.

I am decidedly of the opinion that the Act is confined to English companies and foreign companies carrying on business in England, with, so to speak, a residence of their owna branch office in this country."

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4. All the cases so far cited refer to companies which, though winding-up, have not yet been dissolved by the courts of the country of their incorporation. But, what if the foreign company has already been dissolved by the law of the country of its incorporation? Can it be wound up here? By sect. 267 of the Companies (Consolidation) Act 1908 an unregistered company "includes (with certain exceptions), any partnership association or company consisting of more than seven members By sect. 268 an unregistered company may be wound up, but only by the court (sub-sect. (ii.). To determine which court has jurisdiction, the company is "deemed to be registered in that part of the United Kingdom where its principal place of business is situate." (Sub-sect. (i.). Three circumstances are specified in which an unregistered company may be wound up (sub-sect. (iii.). They are as follows:

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(a) If the company is dissolved, or has ceased to carry on business, or is carrying on business only for the purpose of winding up its affairs; (b) If the company is unable to pay its debts; (c) If the court is of opinion that it is just and equitable that the company should be wound up." The words in italics would seem to suggest that a foreign company which is dissolved by its law can be wound up here.

This interesting question was considered by Lord Wrenbury in the famous Russian bank case, Russian Commercial and Industrial Bank v. Comptoir d'Escompte de Mulhouse (132 L. T. Rep. 99; (1925) A. C. 112, 148). The head office of the bank was at Petrograd, a branch office at London. The London manager was authorised by power of attorney to act on behalf of the bank. He deposited with the Westminster Bank Brazilian and Chinese Government Bonds as security for a banker's credit. In 1918 the Soviet Government (subsequently recognised de facto and de jure by England) purported to dissolve and to nationalise private banks. These became a State Bank, then a People's Bank, then a Government department for banks. The London manager paid off the amount agreed due to the French bank, and sued the French and the London banks for the return of the bonds. The action was instituted in the name of the Russian bank. Mr. Justice Sankey dismissed the action on the ground of the manager's lack of authority. The Court of Appeal upheld Mr. Justice Sankey (Lord Justice Atkin dissenting), on the ground that the Russian bank-and therefore the English branch-had ceased to exist. The House of Lords reversed the Court of Appeal. They held: (a) There was not sufficient evidence to show that the bank had actually been dissolved. "The decrees read more like a declaration of policy than a positive enactment which is to take immediate effect.": (per Lord Chancellor Cave). Moreover, regulations were subsequently issued showing that the decrees did not entirely dissolve the banks. (b) It was too late to raise the defence of the manager's lack of authority; the respondents should have moved to strike out the bank as plaintiffs. (c) Once having accepted payment of the amount due, the respondents were estopped from denying that the London manager had authority to receive back the bonds.

During the currency of the proceedings, an order was made to wind up the appellant company under sect. 268, and Lord Wrenbury's judgment is devoted to the question whether an order could have been made, had the company been already dissolved abroad. A foreign corporation, though it can sue and be sued here (said he) is not a corporation within our law." Seeing that such a company is " an unregistered company," and seeing that it is not otherwise incorporated, is it not to be regarded juristically as a partnership—“ an association of natural persons bound together by a nexus of

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partnership but not corporate ? If so, its dissolution abroad as a corporation might not affect its existence here as an association of natural persons." The question, then, is whether the association is not to be treated here as an association or partnership of natural persons whose relations inter se are to be found in the articles of association of the company and are to be ascertained with reference to the lex loci contractus, but which is nevertheless an association whose existence is not terminated by the death of the foreign corporation, but continues for the purpose of winding up its affairs so far as this country had control over the persons and the assets within its jurisdiction. The natural persons forming such an association are not dead even if the corporation is. Lord Wrenbury said he would like to have heard more argument upon sect. 268 (iii.), and the possibility of winding up here companies dissolved abroad.

The notion that a foreign corporation, duly incorporated abroad, may be regarded in England as a corporation for one purpose but not for another, appears, it is true, somewhat anomalous. Moreover, it might be thought that, just as the status of a natural person is to be ascertained with reference to his domicile, so ought the status of a juristic person to be so ascertained. If (that is) a corporation is duly incorporated under the law of its domicile and is there regarded as a persona, should it not in England, too, be so regarded? If it ceases to be a persona there, should it not cease here also to be a persona? In answer to these contentions it can be argued that a corporation, having no mind, can only have residence but not domicile. It can be said that a company can have several residences, and that if the law of the country of one of its residences regards it as incorporated, it need not necessarily always be so regarded by the law of the country of another of its residences. And as regards the power to sue and be sued that is part of the lex fori. Just as for convenience a firm may sue and be sued in the firm's name, the same reasoning (it can be said) will apply to a foreign company with an English office. Similarly, winding-up is part of the lex fori. And if a foreign company dissolved abroad cannot be wound up here, what is to happen to the English assets and the English creditors? They may be without a remedy, and the assets here there may be no power to distribute. Finally, there are the explicit and unlimited words of the subsection. Accordingly, on the whole, Lord Wrenbury's suggestion appears correct.

THE CONVEYANCER

Incumbrancers and Undivided Shares

ONE result of the Law of Property Act 1925 was that on the 1st Jan. 1926 mortgagees awoke to find their position radically altered, but the change was supposed not to lessen their security or affect their rights and remedies. This is so in most cases, but the mortgagee of undivided shares is, it is submitted, put in a position substantially less secure than before the Act came into operation. Legal estates in undivided shares in land having been abolished by the Law of Property Act, s. 1 (6), and s. 34, some method had to be found for bringing into line land so held immediately before Jan. 1926. This is effected by the transitional provisions contained in Sched. I., Part IV., of the Act. It is under these provisions that the position of an incumbrancer of an undivided share is, it appears, prejudicial. The scheme of Part IV. is to vest the legal estate in land held in undivided shares in various selected persons to hold on the statutory trusts. The position of incumbrancers of the entirety is not prejudiced. Under sect. 1 (8) of Part IV., the land vests in them for legal terms of years absolute in accordance with the Act, but not so as to affect subsisting priorities. Sect. 1 (7) further provides that, where all the undivided shares in the land are vested in the same mortgagees for securing the same mortgage money and the rights of redemption affecting the land are the same as might have been subsisting if the entirety had been mortgaged by an owner before the undivided shares were created, the land, by virtue of the Act, vests in the mortgagees as joint tenants for a legal term of years absolute, subject to cesser on redemption by the trustees for sale. Such incumbrancers are in as good a position as mortgagees of land not within the schedule. The position of incumbrancers of an undivided share is different. Their incumbrance is shifted from the share in the land to the proceeds of sale thereof, and they must look for payment to the trustees in whom the land has vested on the statutory

trusts, which trusts make specific provision for the payment of an incumbrancer of a former undivided share in land (see sect. 35 of the Act). Part IV. of Sched. I. vests the legal estate in land held immediately before the commencement of the Act at law or in equity in undivided shares, if it is subject to incumbrances affecting undivided shares, either (sect. 1 (1) in the trustees if the entirety is already vested in trustees, or (sect. 1 (3) in the trustees of the settlement if the entirety is settled land, or (sect. 1 (4) in the Public Trustee. In all three cases the land vests free from such incumbrances. In the first two the trustees are persons whose interests are not liable to conflict with the mortgagee; in the third, however, the position is different. Here, under sect. 1 (4) (iii.), any persons interested in more than an undivided half of the land or the income thereof may appoint new trustees in the place of the Public Trustee. Such persons can appoint whom they please, and, indeed, in some cases such appointors have appointed themselves. Such latter appointment is, however, probably bad. There are two checks provided to protect the mortgagee's interest; firstly, sect. 1 (4) (iii.) provides that the appointors can only act with the consent of any incumbrancers of undivided shares; and secondly, under sect. 1 (9), the trust for sale and powers of management vested in persons who hold the land on trust for sale, are not exercisable without the consent of any incumbrancer, being of full age, affected whose incumbrance is divested by Part IV. As, however, in both cases a purchaser is not concerned to see or inquire whether any such consent has been given, the necessity for securing such consent is no very real safeguard. The old protection, which resulted from the obligation on a purchaser of seeing that the mortgagee was paid or concurred in the sale, has been removed, and a dishonest trustee appointed by a dishonest mortgagor has, it seems, such a mortgagee at his mercy. Further, as the incumbrance has been transferred to the proceeds of sale, it cannot be registered as a charge. The mortgagee is to a certain extent protected in that sect. 102 of the Act provides that, a person who was before the commencement of the Act a mortgagee of an undivided share in land shall have the same power to sell his share in the proceeds of sale of the land and in the rents and profits thereof until sale, as, independently of the Act, he would have had in regard to the share in the land; and shall also have a right to require the trustees for sale in whom the land is vested to account to him for the income attributable to that share or to appoint a receiver to receive the same from such trustees corresponding to the right which, independently of the Act, he would have had to take possession or to appoint a receiver of the rents and profits attributable to the same share.

Sale of Settled Land

This

UNDER the old Settled Land Acts it was possible for the tenant for life, together with the remaindermen, if they were absolutely entitled, to make a good title to the settled land by virtue of their beneficial interests and without resorting to the powers conferred by the Acts. This method of conveyance was often employed where there were no Settled Land Act trustees and it was not desired to incur the expenses of a new appointment or of an application to the court. practice cannot now be followed. Where land is settled land, so long as the settlement is subsisting, title must be made under the new Act. The alternative method formerly used has been abolished as a result of two new principles in the 1925 legislation. Firstly, a vendor selling settled land cannot insist that a purchaser shall take a title otherwise than under the Act; secondly, if an attempt is made to convey the land in other ways the legal estate does not pass. As to the first, the Law of Property Act 1925, s. 42 (1), provides that: "a stipulation that a purchaser of a legal estate in land shall accept a title made with the concurrence of any person entitled to an equitable interest shall be void, if a title can be made discharged from the equitable interest without such concurrence (a) (b) under this Act, or the Settled Land Act 1925, or any other statute." As to the second, though the legal estate in settled land is vested in many under the transitory provisions of the Law of Property Act in the tenant for life, yet a purchaser cannot get a good title from the tenant for life, as the Settled Land Act, s. 13, provides that: Where a tenant for life or statutory owner has become entitled to have a principal vesting deed or vesting assent executed in his favour, then until a vesting instrument is executed or made pursuant to this Act in respect of the settled land, any purported disposition thereof inter vivos by Third Sheet

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any person, other than a personal representative (not being a disposition which he has power to make in right of his equitable interests or powers under a trust instrument), shall not take effect except in favour of a purchaser of a legal estate without notice of any settlement but, save as aforesaid, shall operate only as a contract for valuable consideration to carry out the transaction after the requisite vesting instrument has been executed or made, and a purchaser of a legal estate shall not be concerned with such disposition unless the contract is registered as a land charge." Further, sect. 18 (1) provides that: "Where land is the subject of a vesting instrument and the trustees of the settlement have not been discharged under this Act, then . . . (b) if any capital money is payable in respect of a transaction, a conveyance to a purchaser of the land shall only take effect under this Act if the capital money is paid to or by the direction of the trustees of the settlement or into court." The only method, therefore, by which a purchaser can get the legal estate in the settled land is by taking a conveyance from the tenant for life and paying the money to the Settled Land Act trustees in accordance with the provisions of the Act.

The New Conveyancing-Settled Land Act-Mortgagees

WHEN a tenant for life sells part of the settled land, subject to a mortgage on the fee, or now for a long term of years, the question often arises as to how the mortgagee should be dealt with in cases where he is not paid off out of the purchase money. This is now provided for by sect. 69 of the Settled Land Act 1925, and by sect. 1 of the Fourth Schedule to that Act. Sect. 69 provides that where there is an incumbrance affecting any part of the settled land (whether capable of being overreached on the exercise by the tenant for life of his powers under this Act or not), the tenant for life, with the consent of the incumbrancer, may charge that incumbrance on any other part of the settled land, or on all or any part of the capital money, or securities representing capital money, subject, or to become subject, to the settlement, whether already charged therewith or not, in exoneration of the firstmentioned part, and by a legal mortgage, or otherwise, make provision accordingly. And sect. 1 of the Fourth Schedule provides that the power conferred by sect. 5 of the Settled Land Act 1882, of shifting incumbrances on a sale, exchange, or partition, shall be deemed always to have authorised a charge on all or any part of the capital money, or securities representing capital money, arising from the transaction, or otherwise subject to the settlement. And "incumbrance" in sect. 5 aforesaid is to be deemed always to have included any incumbrance, whether capable of being overreached on the exercise by the tenant for life of the powers conferred by the Settled Land Acts 1882-1890 or not. It will be observed that this latter section is retrospective. A form adapted to the purpose provided for by sect. 69 will be found in the Encyclopædia of Forms and Precedents, 2nd edit., p. 113.

The New Conveyancing-Secret Trusts

It may not be generally known that sometimes persons -more particularly perhaps builders and land jobbers-buy land and take the conveyance in the name of a third party. The reasons for doing so are various, some of which may be surmised. Having regard to this practice, practitioners should bear in mind the provisions of pars. 3 and 6, Part II., of the First Schedule to the Law of Property Act 1925. Par. 3 provides that where immediately after the commencement of the Act any person is entitled, subject or not to the payment of the costs of tracing the title and of conveyance, to require any legal estate (not vested in trustees for sale), to be conveyed to or otherwise vested in him, such legal estate is by virtue of that part of that schedule to vest in manner thereinafter provided. And par. 6, after enumerating certain particular cases, provides that in any case in which the preceding subparagraphs of that paragraph do not apply, the legal estate affected is to vest in the person of full age who, immediately after the commencement of the Act is entitled (subject or not to the payment of costs and any customary payments), to require the legal estate to be vested in him; but subject to any mortgage term subsisting or created by the Act. In consequence of the foregoing enactments it is usual for a purchaser's solicitor to make a requisition asking whether on the 1st Jan. 1926 the property was subject to any secret trust; and a very eminent conveyancing counsel has settled a form of requisition (among others)—a print of which can be obtained from the Solicitors' Law Stationery Society Limited-to that effect.

If the answer to the requisition is in the affirmative, then the person having the legal estate, that is, the quondam cestui que trust, should join in the conveyance to the purchaser. If, on the other hand, the answer is in the negative, the purchaser must either accept the reply, or require it to be verified by statutory declaration. An experienced conveyancer may be able, in some cases, to form an opinion as to whether a reply in the negative is probably correct. For instance, if the vendor has been occupying the property himself it would seem to be less likely that it was subject to a secret trust, than if he bought the property to sell again: (see further Sir Benjamin Cherry's Lectures on the new Property Acts, pp. 113 to 118). The foregoing observations, however, will lose much of their force if and when the Law of Property Amendment Bill becomes law, as among the minor amendments in the schedule thereto is the following: “In paragraph 3 [of Part II., of Sched. I. to the Law of Property Act 1925] after the words 'hereinafter provided' the following proviso shall be inserted: The divesting of a legal estate, by virtue of this paragraph, shall not, where the person from whom the estate is so divested was a trustee, operate to prevent the legal estate being conveyed, or a legal estate being created by him, in favour of a purchaser for money or money's worth, if the purchaser has no notice of the trust, and if the documents of title relating to the estate divested are produced by the trustee or by persons deriving title under him.'”

The New Conveyancing-Perpetually Renewable Leases

A FEW words about the alteration in the law affecting perpetually renewable leases may be useful. This troublesome tenure is abolished by the Law of Property Act 1922; and by par. 1 of the Fifteenth Schedule to that Act perpetually renewable leases are converted into terms of 2000 years, to be calculated from the date at which the existing terms commence. And by par. 2 perpetually renewable underleases are converted into terms of 2000 years, less one day, to be calculated from the date at which the head term created by the Act commenced. In each case the term is subject to the covenants of the lease, and also to an implied covenant by the lessee, or underlessee, within one year from the commencement of the Act, to produce the lease or underlease, or sufficient evidence of it, with any particulars required to show that a perpetual right of renewal was subsisting at the commencement of the Act, to the lessor, or his solicitor or agent, who will, on payment of the costs, if the right of renewal is admitted or proved, endorse notice of the fact on the lease or underlease, or assignment, or a copy thereof; and such endorsement, signed on behalf of the lessor, will, in favour of a purchaser, be sufficient evidence that the right of renewal was subsisting (par. 10 (1) of the said schedule). The lease or underlease is also to contain power for the lessee or underlessee to determine the lease or underlease, at the date at which it would have expired if it had not been renewed ; also an implied covenant to register assignments, and devolutions of the term, including probates and letters of administration with the lessor, or his solicitor or agent, and pay a premium of one guinea. Of course, if any fine or other money, including a heriot, is payable by the lessee or underlessee on renewal, and additional rent is to be paid, but no additional rent is to be payable on account of any work which is rendered unnecessary by the Act. Such additional rent is to be ascertained on the basis of the fines, and other payments, which would have been payable on the occasion of the first renewal after the commencement of the Act: (par. 12 of the said schedule). Thus, if a lease is renewable at the end of fourteen years, for a fine of £14 the parties will generally agree to add to the yearly rent an annual sum which would, if accumulated at 5 per cent. compound interest, amount to £14 at the end of the fourteenth year: (see Wolstenholme and Cherry's Conveyancing Statutes, 11th edit., p. 99). The lessor and lessee may agree for the commutation of the additional rent, or any part thereof: (par. 14 of the said schedule). A future grant of a lease, with a covenant for perpetual renewal, will take effect as a demise for 2000 years, free from any obligation for renewal, or for payment of any fines, fees, costs or other money in respect of renewal: (par. 5 of the said Schedule). It will be observed that the Act does not contain any provision enabling the lessee to acquire the freehold reversion, and thus enfranchise the property, as in the case of copyholds. That must wait for the Leasehold Enfranchisement Bill, if and when forthcoming.

The New Convevancing-Vesting Deeds

ALTHOUGH the contents of a vesting deed are clearly defined by sect. 5 of the Settled Land Act 1925, the precise form of it will vary with the draftsman. One of the points on which there is a difference of opinion is as to the advisability of having a specific description of the property brought up to date, with schedule and plan, or a general description by reference to the description in the settlement. It certainly would seem more convenient to have a specific description, brought up to date-particularly where, as sometimes happens, there has been no previous specific description of the property -for the following reasons: (1) It will save trouble on a future sale; (2) In course of time the deed may be made a root of title; and (3) Unless there is a specific description, it will be difficult, when the property is subject to numerous mortgages on different parts of it, as often happens in the case of old family estates, to define the property subject to the respective mortgages.

NOTES OF NEW DECISIONS

By Our Reporters in the Several Courts
COURT OF APPEAL

Practice Action for libel-Plea of justification—Particulars of justification-Admissibility.

The plaintiff, who at all material times was a member of the Executive Council, Minister for Industry and Commerce, and Director-General of the Criminal Investigation Department of the Irish Free State, brought an action for libel contained in a book, The Real Ireland, published by the defendants. The plaintiff alleged that the defendants falsely and maliciously caused to be printed and published of and concerning the plaintiff, and of and concerning him as such member, Minister, and Director-General, the following words: “ Lemass, for example, was known to have ambushed a Ford car containing three Free State officers and an N.C.O. near Leeson-street Bridge, a bomb being thrown which killed three of the occupants of the car and wounded the fourth. Responsibility for the murder of Lemass was brought home with reasonable certainty to Joe MacGrath [meaning the plaintiff], then Free State Minister of Labour and head of the Free State Military Secret Service. He attended the Imperial Conference. He started his career as private secretary to Jim Larkin. It is considered pretty certain that he knew who were the men implicated in the attack made last year on British troops at Queenstown." The plaintiff said (by way of innuendo) that "the said words meant that the plaintiff was intimately acquainted with the death of the said Lemass, and had incited, connived at, and brought the same about, that he was well aware of those responsible for the attack upon British troops at Queenstown; that he took no steps to bring to justice those guilty of such acts, but encouraged aided, and abetted the same; that he was a murderer and a man who associated with and assisted murderers, and was unfit to hold any office of trust or responsibility or of any kind, and was a person with whom no honest or respectable man ought to have anything to do.” The defendants justified as follows: "If and so far as the words complained of or any of them meant or were understood to mean or were capable of meaning that the plaintiff took no steps to bring to justice persons guilty of the death of Lemass or of the attack upon British troops at Queenstown, or that the plaintiff was a man who associated with murderers, or that the plaintiff was unfit to hold any office of trust or responsibility, or of any kind, or that the plaintiff was a person with whom no honest or respectable man ought to have anything to do with, such words were and are true in substance and in fact." The defendants avoided justifying the allegations that the plaintiff was a murderer and that he murdered Lemass. The plaintiff obtained an order that the defendants should deliver particulars of their plea of justification. The defendants delivered particulars of seventy-two murders in Ireland for five years with an allegation that the plaintiff had assisted to organise them or employed people to organise them. The plaintiff sought to have the particulars struck out on the ground that they were irrelevant to the plea of justification.

Held, that notwithstanding that the defendants did not justify the specific allegations of murder, the particulars