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Legislature has at the same time imposed on the Government the obligation of establishing and maintaining suitable schools, and has also provided for a supply of efficient and properly trained teachers, who are made officers in the public service. In this way, while rendering the duty of educating children compulsory, it has also provided facilities for enabling parents to comply with the obligation imposed on them." But as there is no volition left a poor parent as to choice of school, there is compulsion on such parent to send his child to the public school. Is not this a disturbing element in the precedents relied on!
In the case of Byrnes v. Lambert (27 N. S. W. W. N. 221) a point of interest to many outside Australis as well as in it was passed on by the Chief Judge in Equity in Sydney, although the case had been determined on other grounds. Shortly, for the purpose of this note, Mrs. Cooper, a woman married in 1885, when the law of husband and wife in New South Wales was similar to the law in force in England, obtained a dissolution of the marriage in 1909 on the grounds of desertion and adultery. In 1910 certain funds came to her under an equity suit which had been instituted to enable her (inter alia) to obtain her share in her father's estate bequeathed to her by his will. On the subject of the husband's rights in his wife's property, the learned Chief Judge said: "It seems curious that the point should not have been decided before. In some of the cases it is stated that the husband has an estate in fee simple in his wife's lands for the joint lives of himself and his wife; in others that he takes only a freehold interest during coverture. There is a further difficulty: at the date when some of the older cases were decided, the only form of divorce, as now understood, was by Act of Parliament, and the judges in deciding those cases might not have taken divorce into account, as the Acts of Parliament when passed usually dealt with the proprietary rights of the parties. I am satisfied that there is a substantial preponderance of authority to the effect that whatever rights the husband had were put an end to by the dissolution of the marriage. So far as dower is concerned, it has been expressly decided that the effect of divorce is to destroy the wife's right": (Frampton v. Stephens, 46 L. T. Rep. 617; 21 Ch. Div. 164). After referring to an old English report and two American cases which had been cited, he continued: Although I am not bound by the two latter decisions, yet they must necessarily have great weight, and they tend to show that the principle, as stated by Coke in Greneley's case (4 Coke, Pt. viii., 71, 73). must be taken to be a correct statement of the law, and that divorce has the same effect on the husband's rights as it has in the case of dower.'
The test as to whether a bequest was a good charitable bequest is, in the words of Lord Justice Buckley in Re Sidney (98 L. T. Rep. 625, at p. 628; (1908) 1 Ch. 488, at p. 492), "whether under this will the trustee is bound to apply these funds to charitable purposes. If consistently with the will he could apply any part of it to purposes which are not charitable in the sense in which the word is understood in this court, the gift must fail as being too indefinite for the court to execute." Upon this foundation the High Court of Australia built its judgment in the interesting case of Byrne v. Dunne (11 C. L. R.), which came before it on appeal from the Reference Court of Queensland. The plaintiff was one of the next of kin of a Roman Catholic priest, who had died having made a will in which several legacies were bequeathed, and directed that 'the residue of my estate shall be handed to the Roman Catholic Archbishop of Brisbane and his successors, to be used and expended wholly or in part as such archbishop may judge most conducive to the good of religion in this diocese. The defendant was the executor of the will, and was forced to defend the charges (1) that the words wholly or in part" did not earmark the part to be devoted to the purposes of the trust, and (2) that the words such purposes as he may think conducive to the good of religion" did not bind the archbishop to expend the fund for religious purposes. The Supreme Court of Queensland unanimously decided in favour of the defendant, depending for support upon Langham v. Petersen (87 L. T. Rep. 744; 19 Times L. Rep. 15), Smith v. Kearney (1881, 2 N. S. W. L. R. (E) 49), Grimond v. Grimond (92 L. T: Rep. 476; (1905) A. C. 124), White v. White (2 Ch. 41), Townsend v. Carus (3 Hare, 257), West v. Shuttleworth (1835, 2 My. & K. 684), Arnott v. Arnoti (1 Ir. Rep. 127), and Brown v. Whitty (11 Q. L. J. 133). The Queensland judges considered the words "wholly or in part "had relation to the time or times during which the archbishop and his successors controlled the trust funds. The High Court, by a majority of three to two, allowed the appeal, and decided that the bequest was void from uncertainty and was not a good charitable bequest. During his judgment (of the majority) the Chief Justice said that it was settled law that religious services or institutions, all of which are, no doubt, in one sense religious purposes, can only be considered charitable so far as they tend to the edification and instruction of the public. It seemed to him at least doubtful whether purposes may not be for the good of religion although they do not directly tend to such edification or instruction. Again, it seemed to him that purposes may reasonably be called conducive to the good of religion although they have no such direct tendency. For instance, it might well be said tuat a political propaganda for the purpose of procuring State endowment of churches or denominational schools, or the establishment of a newspaper conducted on religious or high moral principles, or the establishment of a contemplative order of nuns, would be purposes conducive to the good of religion. Certainly, the archbishop might reasonably think so. He did not at present see his way to deny such a proposition. But he did not think that either purpose would be a charitable purpose. Reading the whole disposition together, without separating the two phrases upon which the debate had turned, he could not help being impressed with the view that the testator,
who was a Roman Catholic priest (if that was material), implicitly trusted his archbishop, and desired to give him an absolute discretion as to the disposition of the fund, not presuming to dictate either what part should be applied to the objects more particularly specified, or how the part applied to them should be distributed, and that he d d not intend that the archbishop's judgment as to what would te most conducive to the good of religion should be subject to any control whatever. The only argument in opposition to this view is the notion of the overriding trust to be implied from the fact that the gift was to the archbishop and his successors in trust. But such a gift, as he had tried to show, although it may suffice in some cases, is not sufficient in this. The overriding trust must appear aliunde, and cannot be inferred from the debatable words of the particular trust itself. He should add that, in his opinion, the presumption against intestacy cannot be called in aid for the purpose of supporting a gift in trust which is impeached on the ground that the trusts are too indefinite for the court to execute.
The case of Sawtell v. Gardner (27 N. S. W. W. N. 172) is interesting as the occasion when two judges of the Supreme Court of New South Wales, sitting in Banco, expressed themselves as bound by the opinions of two of the judges of the High Court when sitting on an appeal from the New South Wales Supreme Court. In Sawtell v. Gardner the defendant, a licensed victualler, was charged with selling liquor at a time when his premises should be closed for such sale. The evidence showed that, in the absence of the defendant, the person in charge of the premises served liquor to one A. C. at an hour prohibited. The defendant had warned the person in charge not to serve anyone during his absence. The magistrate, relying on Ex purte Lynch (8 S. R. (N. S. W.) 636), which declared that mens rea was a necessary ingredient in the offence, dismissed the information. On appeal to the State Full Court, it was pointed out that the appeal from Ex parte Lynch had gone to the High Court (8 C. L. R. 592), but that on that appeal the exact point to be determined in the appeal in Sawtell v. Gardner had not been decided. However, two judges-Justices O'Connor and Isaacs-had expressed strong opinions contra the State Supreme Court's decision in Ex parte Lynch. The opinion of the two High Court judges was based on Sherras v. De Rutzen (1895) 1 Q. B. 918). The State Full Court, although no formal decision had been given on the application of mens rea to the Licensing Act, accepted the situation and sustained the appeal. It will be noted that the High Court consists of five justices, and that it was to an opinion of a minority of them that the State Full Court yielded. The decision adds another terror to the life of an hotel-keeper.
The Commonwealth Constitution Act created one of the most extraordinary situations that can be found in any system of jurisprudence set up by rational men. Instead of standing by one court of final appeal, the framers of the Constitution gave the public a High Court which should be a Court of Appeal from the State Courts-if the litigants wished to go there while parallel to this stands the Judicial Committee of the Privy Council, which has ever been and still remains available for litigants to which to carry their grievances. It can be easily understood that such a state of things causes friction and makes work for the local courts. Fortunately the composition of the High Court Bench has been good, and so there is a growing disposition for litigants to pass the Privy Council and go on to the High Court. And the State judges are also showing that the High Court is the natural tribunal for Australians to seek when wishing to know the last word of the law. In the case recently decided in Queensland, Re Trust and Agency Company of Australasia Limited (1910, St. Rep. Q. 320), a motion was made to the State Full Court for leave to appeal to the Privy Council from a judgment of the court in which a decision was given on a point under the Income Tax Act as to whether the applicant company was liable to pay income tax. It was urged that the judgment was not final, as, notwithstanding it, the Commissioner would have to take other steps to recover the money payable as duty. Such a judgment was merely the determination of a question preliminary to making an assessment. Against this the following cases were quoted: Re Income Tax Acts; Outtrim's case (1905, V. L. R. 463), Lovell and Christmas Limited v. Commissioner of Taxes (97 L. T. Rep. 651; (1908) A. C. 46), Scottish Provident Institution v. Commissioner of Taxes (84 L. T. Rep, 241; (1901) A. C. 340), Commissioners of Taxation v. Kırk (83 L. T. Rep. 4; (1900) A. C. 588), and Broughton v. Commisioner of Stamps (1899) A. C. 99). The court unanimously refused to grant leave to appeal. The question of whether the judgment was a final judgment or not was held to be doubtful, and it was distinguished from Outtrim's case by Mr. Justice Real. In the course of his judgment Chief Justice Cooper said: "And looking at the matter as doubtful, I do not think this court ought to allow the parties the opportunity of passing the High Court and going to the Privy Council. They have clearly the right to appeal to the High Court, and I think they ought to adopt that course." Mr. Justice Real in his judgment said: "There being a special Court of Appeal provided by the Commonwealth for all judgments, final and interlocutory, of this court, and there being in the Orders in Council power to this court to give leave to appeal, and thus, as it were, pass by the court provided by our own Constitution, should we facilitate any party in taking an appeal to the Privy Council in a case where it is doubtful whether such an appeal could be had without the assistance of the court? I do not think we should. We should allow them to go to the court provided by the Constitution of the Commonwealth." This decision is a readable indication of the bent of the legal mind in Australia. Our law is the English law, and our judges are exponents thereof, and have been brought up to trace it to its source and to recognise the instruments of its highest expressionthe Privy Council-as having the last word. But slowly the modern epirit that Australia is growing self-sufficient in legal matters is
showing itself, and the High Court is coming fast to be recognised as the one final Appeal Court for us.
It was fortunate for Mr. R. J. Haddon and his wife, who dwelt on the Dandenong-road, Caulfield, a suburb of Melbourne, that sixty years ago Lord Justice Knight Bruce expressed himself in Walter v. Selte (4 D. G. & S. 315) that the inconvenience in cases of nuisance which the court will protect against must not be one of mere delicacy and fastidiousness, but must be an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain. sober, and simple notions among English people. Mr. Haddon and his wife were disturbed by the ringing of a cburch bell adjoining their residence, which clanged fo: two minutes at 7.30 a.m. and again for three minutes at 8 a.m. on each Sunday morning. Requests to have the noise discontinued not having been complied with, Mr. Haddon and his wife brought action against the incumbent and church officers to secure the suppression of the noisy nuisance, and for damages. In giving judgment the court, Mr. Justice à Beckett, ruled that the ringing of the bell at the hours mentioned was a nuisance, and granted an injunction to suppress it. He also gave judgment for £5 as damages, that amount only having been claimed. After stating that he thought it was reasonable to object to being roused at 7.30 a.m. on Sunday by a neighbour's bell, he said: "I think it not exceptionable, and that a large proportion of the dwellers in Melbourne suburbs would be found in bed and asleep at half-past seven on Sunday. The plaintiffs cannot be considered delicate or fastidious for complaining of intrusion at an hour at which a like intrusion would be resented by thousands if they were subjected to it. That many people are up and about at half-past seven on Sunday does not lessen the right of others to remain in bed and complain of being pulled out by the ears, if I may so describe the assaults of St. Paul's bell." He then referred to Lord Selborne's dicta in Gaunt v. Fynney (27 L. T. Rep. 569; L. Rep. 8 Ch. 12) and St. Helens Smelting Company v. Tipping (11 H. L. Cas. 642), and continued : Applying these dicta to the facts in the present case, and without any disrespect treating the church for that purpose as if it carried on a trade, I say that the early morning bell is not a necessary incident of its trade. It is not wanted to attract customers, and I do not suppose that a single customer would be lost by its discontinuance. It is no part of the church service, no incentive to attend. It merely announces the time for attendance in a manner uncalled for in these days of cheap clocks and watches. The bell may revive pleasant associations for a good Churchman, but he would not wish them revived at the expense of his neighbour's comfort. I hold the early morning ringing to be an unreasonable disturbance of the plaintiffs' comfort-a nuisance which the court should restrain." And these happenings are set out in the case of Haddon v. Lynch as reported in Victorian Law Reports 1911, p. 5. EVERARD DIGBY.
COMMENTS ON CASES.
"THE tenant for life of a settled estate is entitled to all annual and casual profits which accrue during his life tenancy, in the absence of any provision to the contrary in the settlement." The proposition thus enunciated in Mr. Gover's Law of Capital and Income, 2nd edit., p. 4, is supported by several authorities. of which Brigstocke v. Brigstocke (38 L. T. Rep. 760; 8 Ch. Div. 357, at p. 363) is the first cited. The question raised in the recent case of Re Lacon; Lacon v. Lacon (noted post, p. 105) was whether a sum paid as compensation in respect of a claim for damages for dilapidations to certain buildings forming part of settled land, which had been leased with the mansion-house to a lessee, came within the description of "casual profits," and, therefore, belonged to the tenant for life, who was not impeachable for waste; or whether it was in the nature of capital money arising under the settlement and should be paid to the trustees thereof. In deciding that the latter was the right conclusion, Mr. Justice Swinfen Eady, before whom the case came in the court of first instance, was much influenced by the provisions of sect. 53 of the Settled Land Act 1882 (45 & 46 Vict. c. 53), which enacts as follows: "A tenant for life shall, in exercising any power under this Act, have regard to the interests of all parties entitled under the settlement, and shall, in relation to the exercise thereof by him, be deemed to be in the position and to have the duties and liabilities of a trustee for those parties." The learned judge was of opinion that, having regard to the true construction and effect of that section, the sum paid in respect of the dilapidations was payable to the trustees of the settlement and not to the tenant for life for his own benefit. If the opinion which has been expressed by the authoritative textwriters is to be accepted as any criterion, the conclusion arrived at by Mr. Justice Swinfen Eady may be taken as being in consonance with the view entertained by the Profession generally. That compensation paid for dilapidations in lieu of repairing is conceived to be capital money appears from what is said in Wolstenholme's Conveyancing, &o., Acts (9th edit., pp. 335, 412), Hood and Challis' Conveyancing, &c., Acts (7th edit., p. 243), and Gover's Law of Capital and Income (2nd edit., p. 5). But notwithstanding the excellent reasons given by the learned judge in the court below for his decision, the Court of Appeal did not see their way to affirm it. The fact that the tenant for life was unimpeachable for waste was regarded as a factor of the utmost importance. As legal reversioner he was, as the Master of the Rolls (Cozeng-Hardy) pointed out, entitled to sue at law and claim damages
for breach of the covenant to repair which was comprised in the lease/ and he would sue for his own benefit and so be entitled to the amount recovered. Or, as Lord Justice Kennedy put it, money paid by the lessee in satisfaction of his legal duty under the covenant to prevent waste would not, when it came into the hands of the tenant for life, represent a corresponding liability on his part, because, by the express terms of the settlement, he has been relieved from any such liability. The decision of Mr. Justice Bigham in Mitchell v. Armstrong (17 Times L. Rep. 495)-a case directly in point-cannot, therefore, now be treated as sound law, but must be looked upon as overruled. A strong ground in favour of the view taken by the Court of Appeal is to be found in the fact that if the money paid by the lessee as compensation were received by the trustees of the settlement as capital money a:ising thereunder, the same could not, without breach of trust, be devoted to making good the repairs which the lessee ought himself to have effected during his tenancy. It could not be utilised for the purpose for which it would have been paid by the lessee, inasmuch as capita! money cannot be applied in effecting repairs to buildings: (see Settled Land Act 1882, s. 21). What, then, could the trustees have done with the money except hold it as part of the trust property? On the other hand, there is certainly no equity that the tenant for life should personally receive the compensation; the equity, indeed, is distinctly in the opposite direction. Although exonerated by the settlor from impeachability for waste, yet it is somewhat startling that such money-constituting, as it does, damages received in respect of the whole inheritance-should come within the ordinary rule that a tenant for life is entitled to make all the profit he can out of the legal incidents of his life estate without any liability to account. For if the money is put into his own pocket, the needful repairs remain uneffected, and the consequence is that the settled land suffere. At the same time, sect. 53 of the Act of 1882 does not, as was said by Lord Justice Buckley, create in favour of the remaindermen a trust to apply the money in a manner in which the settlor has not directed it should be applied. While this decision is fully in accord with what was laid down in the old case of Noble v. Cass (2 Sim. 343), it is regrettable that a result more in harmony with the dictates of equity was not possible.
THE rule that one executor can deal with the personal estate of his testator without the concurrence of any co-executor is familiar to all lawyers, and the decision of Mr. Justice Joyce in Solomon v. George Attenborough and Son (noted ante, p. 80) shows that this right can be exercised at a great distance of time after the testator's death. The testator died in 1878, and his debts, funeral and testamentary expenses were paid within the year. In the year 1892 one of the executors pledged some plate, forming part of the testator's estate, and used the proceede in payment of his private debt. This dishonest act had been discovered only recently, and when proceedings were taken to prevent the pledgee realising his pledge, the learned judge held that as one executor had power at any distance of time to pledge his testator's personalty and the pledgee had no notice of any traud, the action must be dismissed. A great difficulty occurs in these cases, when it is feared that the executor may have assented to the legacy. It is clear that the assent of one executor is sufficient: (Williams on Executors, 10th edit., p. 1107). Consequently, as the assent makes the legacy immediately vest in the legatee, it no longer forms part of the testator's estate. It is easy to imagine that A. and B. have been appointed joint executors and that A. has assented to the vesting of the legacy in C. (the legatee), and, in spite of this, that B. in ignorance of the assent, or in fraud, pledges the chattel bequeathed. Presumably, in such a case the pledgee would have no title; but how is he to know? The assent may be merely verbal so that there is no document about which he should inquire. This same difficulty has been carried on in the recent attempt to assimilate the law of realty with that of personalty. A mortgage, for instance. now vests in the mortgagee's executors or executor, with power "for one only of several joint personal representatives," to deal with it (Conveyancing and Law of Property Act 1881, s. 30), Eo that one executor could ignorantly or dishonestly deal with the mortgage after his colleague has assented to its vesting in a specitic legatee. Again, under the Land Transfer Act 1897, while one co-executor cannot convey the real property, it is not certain that one cannot assent to a devise, though no purchaser of unregistered land could, having regard to the prohibition in sect. 2, sub-sect. 2, contained against transfer, as well as sale, be advised to accept the title of an heir or devisee who claimed under an assent or conveyance by one out of several executors: (Brickdale and Sheldon's Land Transfer Acts, 2nd edit., p. 291). In regard to land vesting in the heir of an intestate an assent is not sufficient, but a conveyance is necessary (Land Transfer Act 1897, e. 3), and presumably one co-administrator could not convey it to the heir. A difficulty arises in the case of an intestacy, but of a different kind. An administrator must convey to the heir, but suppose the heir is the administrator, how can he convey to himself? Logically, it would appear that in such a case the real property remains part of the testator's estate, as the administrator cannot convey it to the heir and a mere assent has no effect.
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THE recent very instructive judgment of Mr. Justice Warrington_in Watling v. Lewis (104 L. T. Pep 132; (1911) 1 Ch. 414) calls attention to a point of frequent cccurrence in the course of conveyancing practice-namely, the proper way of framing a mortgage or charge by trustees and others in a fiduciary capacity so as to avoid personal liability. The question is not free from difficulty. In that case the facts were shortly as follows: The plaintiff was the present trustee of the will of P. L., and the defendants were the present trustees of the will of H. L. P. L. and H. L. were formerly partners, and were entitled as part of their partnership property to certain hereditaments at X. which were subject to a mortgage of £2000 and interest. In the year 1903 an action was brought by the teneficiaries under the will of P. L. as to his share in the partnership property. Such action was compromised on the terms of the plaintiff accepting in satisfaction of such share certain debentures in a limited company which had been formed to acquire the partnership business, and the defendants receiving the share of P. L. in the mortgaged property subject to that mortgage. In order to carry out the compromise, a deed was executed by which the plaintiff as trustee conveyed to the defendante P. L.'s share in the mortgaged property, and the defendants as such trustees, but not so as to create any personal liability on the part of them or either of them," thereby jointly and severally covenanted with the plaintiff that they or one of them, their or one of their heirs, administratora, or assigns, would pay the principal sum of £2000 then due in respect of the mortgage and all interest thenceforth to Decome due thereon, and would keep indemnified the plaintiff and his estate and effects and the estate and effects of P. L. from all claims and demands on account thereof. In 1909 the mortgagees sold the property for less than the mortgage money and made a demand on the plaintiff for the deficiency, amounting to upwards of £500. The plaintiff gave notice of that claim to the defendants and paid it. The defendants refused to repay the plaintiff on the ground that they were not personally liable under the covenant. Mr. Justice Warrington said that he had no doubt, as a matter of construction, that the defendants had covenanted to pay the money and to indemnify the plaintiff, but that they had at the same time attempted to quality the obligation which would be imported by their absolute covenant to pay, and the question was whether they had succeeded in displacing that obligation. As regards authority, the question was whether Furnivall v. Coombes (5 Man. & G. 736) or Williams v. Hathaway (6 Ch. Div. 544) applied. In Furnivail v. Coombes the church wardens and overseers of a parish had covenanted to pay certain moneye, but had qualified the covenant by a proviso which may be shortly epitomised as follows: " Nothing herein contained shall be construed as a personal covenant of the covenanting parties or in any wise personally affect them in their private capacity, but shall be binding upon the churchwardens and Overseers and their successors for the time being as such churchwardens and overseers, but not further or otherwise." It was held in that case that the attempt to exclude personal liability was repugnant to the covenant, and that the defendants were therefore liable under the covenant as if the proviso had not been there. In Williams v. Hathaway the facts were shortly as follows: A vicar and incumbent entered into a building contract with a contractor to build a new church and parsonage, and they covenanted "to the intent (eo far as they lawfully could or might) to bind such person or persons as aforesaid" -that is, the persons for the time being entitled to apply the fund to be raised-but not so as to bind either of themselves or his heirs, executors, or administrators after he or they should have ceased to be entitled to apply the same fund," and it was held by Jessel, M.R. that the liability of the covenantors was restricted to the period during which they were respectively vicar and incumbent, and that in any case their liability extended only to the amount of the building fund and no further. The decision turned upon the fact that the proviso merely limited the liability and did not destroy it altogether, and was therefore not repugnant. It would seem from the case of Watling v. Lewis that a covenant by trustees to the intent to bind themselves "if and so long as they are trustees and to the extent of the trust property would be good. The question arises whenever trustees or executors, or other persons in a fiduciary capacity, have occasion to raise money on mortgage. The forms given in the precedent books differ. It is submitted that the ordinary and best plan is, either by way of mortgage or charge, to charge the property with the payment of the principal and interest, and not to insert any covenant, agreement, or declaration as to payment apart from the charge, and, if that plan is adopted, it does not seem necessary to insert any proviso negativing personal liability on the part of the trustees. It must be borne in mind in this connection that no particular form of words is necessary in order to create a covenant. În Courtney v. Taylor (6 Man. & G. 851) Lord Chief Justice Tindal said: "To charge a party with a covenant, it is not necessary that there should be express words of covenant or agreement. It is enough if the intention of the parties to create a covenant be apparent." The question was fully conidered in Jackson v. North Eastern Railway Company (37 L. T. Rep. 664; 7 Ch. Div. 573). In that case a deed, dated in 1860, between a company. X., a director, and certain trustees recited that certain collieries had been acquired by X, on behalf of the company, that the outlay had been provided as to £467,079 out of the company's money, and as to £43,216 by X. for the benefit of the company, and thereby
consideration of the repayment of the £43,216 being secured in шinner thereinafter appearing it was declared that the collieries
should be held upon trust to secure first the interest on the £467,079 and, secondly, the interest on the £43,216 "so due to X." There was also a provision for investing any surplus rents as a means of paying off the principal. The collieries were sold under a special Act of Parliament. but did not realise sufficient to pay the £467,079. It was contended on behalf of the plaintiff X. that as the debt to him was fully and distinctly acknowledged in the deed of 1860 that amounted to a covenant. It was held by the court that the deed did not constitute X. a specialty creditor of the company, but only operated to give him a charge upon the property comprised in the deed. It is to be gathered from the judgment, and from the cases referred to therein, that the mere admission of a debt in a deed, where such admission has no other object, implies a covenant for payment, but that it does not so operate where it is made for some other purpose, such as to show what is intended to be secured by the deed. See, further, Norton on Deeds, pp. 198 and 491.
SOMEWHAT germane to the foregoing subject is that of a covenant by a person with himself and others. It must be taken now as settled law that such a covenant if joint, and not several, is void. One of the earliest cases on the point is De Tastet v. Shaw (1 B. & Ald. 664). In that case a man entered into a covenant with himself and his partners to pay a certain debt due from himself to the firm, and it was decided that no action would lie on the covenant as such either at law or in equity. In Boyce v. Edbrooke (88 L. T. Rep. 344; (1903) 1 Ch. 836) a lease was granted by a tenant for life under the Settled Estates Act 1887 to himself and others as lessees containing covenants by the lessees to pay the rent and perform the covenants of the lease. One of the objections to the lease was that the lessees had not covenanted with the lessor to pay the rent and perform the other obligations of the lease. Mr. Justice Farwell in the course of his judgment said: "It is argued that the covenants are joint and several. I have done my best to spell a several liability out of the document, but I am wholly unable to do so, and I do not think the court is at liberty to alter the plain words. . . Now, when the Act of Parliament mentions covenant' it means a legal covenant which can be sued upon at law, and not some right which might or might not arise from equitable considerations; but if this is a joint covenant no action could have been brought upon it at law, at any rate while the lessor lived." As was said by Chief Justice Best in Neale v. Turton (4 Bing. 149, 151): "There is no principle by which a man can be at the same time plaintiff and defendant" [this principle is sometimes overlooked by practitioners when issuing an originating summons]. Accordingly his Lordship held that the covenant in that case was not such a legal covenant as was required by the Act of Parliament. The question has recently come before the court in Ellis v. Kerr (102 L. T. Rep. 417; (1910) 1 Ch. 529). In that case by a marriage settlement X. assigned to the trustees a policy of assurance to be held upon the trusts thereof, and he and B. C. and D. E. (two of the trustees of the settlement) covenanted with the trustees to keep up the policy. A new trustee was afterwards appointed in the place of one who retired, and the policy and the right to enforce the covenant were vested in B. C, D. E, and F. G. (the new trustee) as joint tenants. X. made default in paying the premiums, and B. C. and D. E. refused to make the payments personally. F. G. brought and action against X., B. C', and D. E., the covenantors, for a declaration that they were jointly and severally liable to pay the premiums, and for an order on them accordingly. The defendants gave notice of trial of a question of law under R. S. C., Order XXV., r. 2, asking for a declaration that the covenant was void, and created no cause of action so far as regarded them, by reason of their being named there in both as covenantors and covenantees, and that the action might be dismissed with costs, or all further proceedings therein be stayed, and it was held by the court that the covenant was void and the action must be dismissed. Mr. Justice Warrington in the course of a very lucid judgment, after referring to De Tastet v. Shaw and Boyce v. Edbrook, said that those cases established that the objection taken by the two applicants was not one of form, but of substance, and that there never was, as part of the trust estate in that case, any such chose in action as would be created by an effective covenant by the defendants to pay the premiums on the policy of insurance, and therefore there was nothing in which the beneficiaries under the settlement could ever have had any equitable interest. The action was dismissed without prejudice to any action which might be brought againet B. C. and D. E. founded on an obligation arising otherwise than on the covenant. A similar point arose in Napier v. Williams (104 L. T. Rep. 389; (1911) 1 Ch. 361). There a testator directed he trustees to grant a lease of a freehold house forming part of his estate to his son C. R., such lease to contain a covenant by the lessee to repair, and such other covenants as are usual in a London repairing lease. C. R. was himself one of the trustees, and a lease was granted by him and his co-trustees to himself as lessee, and he covenanted with the lessors to keep the property in repair, and not to assign without the lessors' consent. C. R. subsequently assigned the premises to a company for the residue of the term. The company issued debentures, which were secured by a trust deed, by which deed the premises were assigned to the trustees of such deed for the residue of the term. The lessors brought an action against such trustees for a declaration that the lease was binding on them, and that they held the premises subject to the lessee's covenants. The defendants, who had never been in possession, contended that by reason of the fact that the covenantor was himself one of the covenantees and that the covenants were joint, and not joint and several, they were void, and created no obligation by which the defendants were bound.
Held, that the lease was not void in law, but that as the covenants were by one person with himself and others jointly, they were void (following Ellis v. Kerr), and therefore that there was no covenant which could run with the land and impose any personal liability on the defendants. Mr. Justice Warrington, referring to the plaintiff's right in equity, said: "It may be conceded that the relations between the lessee himself and his co-trustees and the beneficiaries, and the circumstances under which the lease was granted, would render him liable to perform the obligations which the lease purported to impose upon him. The assignees must, no doubt, be treated as having notice that the lessee was a trustee and that the lease was granted in purguance of the will. As regards the nature of the interest they took under the lease, it may well be that it would be subject to the same equities as the interest thereunder of the lessee, and, as I have already pointed out, the defendants do not deny this, for they admit that the lease may be determined unless they perform its conditions. But to impose on the assignees a personal liability by reason of notice is a totally different matter. There is no principle and no authority by virtue of which it could be imposed in such a case as the present.'
On Tuesday, the 13th inst., a lunacy application, Re Joyce, and interlocutory appeals from the Chancery Division will be taken in Appeal Court II. On the 14th inst. National Telephone Company v. His Majesty's Postmaster General will be in the list for hearing On and after Monday, the 19th inst., Chancery appeals (general list) will be taken.
In Appeal Court I. appeal motions (Ex parte), original motions, and interlocutory appeals from the King's Bench Division will be in the paper for hearing on the 13th inst. Admiralty appeals (with assessors) will be taken on the 14th inst. and following days.
On the first day of next term motions and adjourned summonses will be taken by Mr. Justice Warrington. On Wednesday, the 14th inst., Wilson and others v. Wilson Brothers Bobbin Company Limited will be in the list for hearing (for Mr. Justice Parker).
On and after Tuesday, the 13th inst., and until further notice, Commercial summonses will be taken by Mr. Justice Hamilton at 10.15 and the court will sit until 4.15.
Appeals from County Courts will be heard by a Divisional Court. sitting in Bankruptcy, on Tuesday and Wednesday, the 13th and 14th inst.
Sir S. T. Evans, who will act as Vacation judge during the Whitsun Vacation, will sit in his private room (No. 644) at the Royal Courts of Justice on Thursday next, the 8th inst., at 10.30, to hear applications and summonses. He wil not sit again during the Vacation. On other days during the Vacation applications in urgent matters may be made to him by post or, if necessary, personally. His duties as Vacation judge will terminate on Monday, the 12th inst.
Mr. Justice Pickford left London for Aylesbury, on the Midland Circuit, last Monday, and opened the commission on the following day. He will go the circuit alone until Nottingham is reached on Wednesday, the 5th July, when he will be joined by Mr. Justice Ridley. At the conclusion of the business at this town Mr. Justice Pickford will return to London, where he will remain until the end of the sittings, and Mr. Justice Ridley will continue the circuit, going on to Warwick and Birmingham.
Mr. Justice Lawrance left London on Wednesday last for Reading, on the Oxford Circuit, and opened the commission on the following day. He will go the circuit alone until Stafford is reached on Monday, the 10th July, when he will be joined by Mr. Justice Bucknill. When the business at this town is finished Mr. Justice Lawrance will return to London, where he will remain until the end of the sittings, and Mr. Justice Bucknil will continue the circuit, going on to Birmingham, where he will be joined by Mr. Justice Ridley on Saturday, the 15th July, and the commission will be opened by them on the following Monday.
Mr. Justice Bray will open the commission at Presteign, on the South Wales Circuit, on Friday next. When the business at this town is finished he will return to London, where he will remain until Tuesday, the 4th July, when he, being joined by Mr. Justice Bankes, will return to the second part of the circuit at Chester, and will open the commission on the following day.
On Saturday next Mr. Justice Bankes will open the commission at Mold, on the North Wales Circuit. When the business at this town
finished he will return to London, remaining until Tuesday, the 4th July, when he will return to the second part of the circuit at Chester, being joined by Mr. Justice Bray. The commission will be opened on the following day.
There will be six judges of the King's Bench Division away performing their judicial duties on their respective circuits during the whole of the Whitsun Vacation-viz.: Mr. Justice Lawrance will be at Reading, on the Oxford Circuit; Mr. Justios Coleridge at Wells, on the Western Circuit; Mr. Justice Bray at Brecon, on the South Wales Circuit; Mr. Justice Pickford at Northampton, on the Midland Circuit; Mr. Justice Avory at Norwich, cn the South-Eastern Circuit ; and Mr. Justice Bankes at Ruthin, on the North Wales Circuit.
The next general sessions for cases arising on the north and south sides of the Thames will commence on Tuesday week, the 13th inst., at the Sessions-house, Newington, at 10.30.
The June Sittings at the Mayor's Court will commence on Monday, the 12th inst., at 10.30.
The city of Worcester (adjourned) sessions will be held on Friday next at 10.30 a.m.
The Local Government Board has added to the index marks of the London County Council for motor-cars the letters L.E., in addition to A., L C., L. N., L.B., L.D., and L.A., previously assigned. Owing to the absence on leave of His Honour Fredk. Mackenzie Maxwell, the Hon. H. K. M. Sisnett, Acting Attorney-General, has been appointed to act as Chief Justice of British Honduras.
Chief Justice P. M. C. Sheriff, Chief Justice, St. Lucia, and Mr. D. T. Tudor, K.C., Attorney-General, Grenada, have arrived in England on leave.
Mr. Arthur Hudson, Attorney-General of the Gold Coast Colony, who has recently been acting as Colonial Secretary, has arrived in England on leave of absence.
Sir J. Bromhead Matthews, K.C., Chief Justice of the Bahamas, has arrived in England on two months leave of absence. Mr. F. C. Wells Durrant, K.C., is acting as Chief Justice and Mr. Harcourt G. Malcolm, K. C., as Attorney-General.
The London County Council has decided to fix (a tablet on 55, Lincoln's-inn-fields, to commemorate the residence there of Sir William Blackstone, judge and author of Commentaries on the Laws of England.
At the Wellingborough County Court recently a female witness came into court with her head uncovered. His Honour Judge Snagge said: "I will not have a woman coming into court with her head uncovered. Go away and get a hat or a bonnet."
Mr. Joseph Mason Moore, of Harton Hall, South Shields, solicitor formerly mayor and town clerk of South Shields, who died on the 4th March, aged eighty, left estate of the gross value of £92,618, with net personalty £69,024.
Mr. George Allen, of St. John's, Putney-hill, S. W., and of Carlisle street, Soho-square, W., Eolicitor, of the firm of Messrs. Allen and Son, who died on the 22nd April last, aged eighty-three, left estate of the gross value of £287,098, of which the net personalty has been sworn at £266,021.
The Treasurer of the Inner Temple (Mr. Justice Bray) and the Masters of the Bench entertained between 200 and 300 visitors from the Colonies to the Royal Horticultural Society's great flower show in the Inner Temple Garden on the 23rd and 24th ult. and to tea in their Parliament chamber.
The following Advisory Committee for the selection of Justices of the Peace for Kent has been appointed by the Lord Lieutenant, with the approval of the Lord Chancellor : Lord Harris, Lord Weardale.. Mr. F. S. W. Cornwallis, Mr. W. Wheler Berry, Mr. Alfred John. Baker, and Sir Montague Bradley.
An intermediate session for cases arising in the county of Middl sex was opened on Wednesday last at the Caxton Hall, Westminster. before Mr. Montagu Sharpe (chairman), Mr. Herbert Nield, M.P. (deputy chairman), and other justices. The calendar contains the names of seventeen persons. There will be no sessions held during.. the present month of June.
The Australian Federal High Court gave its decision on Wednesday in the Osborne case, which was the outcome of the serving of a writ in January last on the Commonwealth Government on behalf of Mr. Osborne, a North Sydney landowner, attacking the validity of the Australian Land Tax Act as ultra vires. The court unanimously upheld the tax.
The jurors who recently sat at the second session of the assizes at Charente- Inférieure have made a presentment to the effect that in many cases prisoners are acquitted on account of the severity of the minimum sentence which the Code enacts for various offences, and calling upon Parliament to amend the Code so that minor offences should be adequately dealt with by the jury trying such cases.
Even in these days of golf and motoring there are many keen fishermen in the Legal Profession who will appreciate Chalkstream and Moorland: Thoughts on Trout Fishing, by Harold Russell, of the Inner Temple and Midland Circuit (Smith, Elder, and Co.). It is just the book an angler will delight to have with him on his excursions, if only to compare experiences and opinions.
A gardener named Marino and a ship hand, one Daucet, have not been too severely punished at the Assize Court at Eure-et-Loir, the former being sentenced to eight years travaux forces and the latter to five years reclusion. These two miscreants are twenty years of age, and on leaving a cabaret in a state of drunkenness swore that they would kill the first man they me. They carried out their vow by slaying a waggoner, a married man with a family.
The Bar Golfing Society will hold their ninth annus wurnament on the Princes' Course at Sandwich from Wednesday next, the 7th inst.. to Saturday, the 10th inst., inclusive. There are 113 entries. Among the fifteen who have drawn byes in the first round is last year's winner, Mr. D. M. Smith. The first round includes Mr. Ernest Baggallay (handicap 2), Mr. J. F. Tindal Atkinson (plus 2), who has won from Mr. Justice Scrutton (13), Mr. Marshall Hall, K.C., M.P. (4), Sir K. Muir Mackenzie (14), Sir Thomas Parkyns (4), and Mr. Justice Bucknill (17).
The annual report of the Prison Commissioners for Scotland for 1910 states that the number of commitments during the year, including persons sentenced to terms of penal servitude, again shows large decrease, being 46,466, as compared with 54,190 in the previous year, the total being the lowest recorded since 1887, when the population of Scotland was 3,989.836, as against 4,929,521 estimated for 1910.
His Honour Judge Edge, at the Clerkenwell County Court, on the 29th ult., addressing a solicitor who appeared in court unrobed, said: "You are the third solicitor who has appeared before me this morning unrobed. I must have this rule observed. A robe can be obtained from the court-keeper." His Honour Judge Bacon had occasion to make similar observations at the Bloomsbury County Court a short time ago.
Mr. Christopher James, of Old-square, Lincoln -un, W.C., and of Connaught-square, W., barrister-at-law, for some years Secretary in Lunacy, who died on the 21st Dec. 1st, aged sixty-four, son of the late Mr. John William James, formerly superintendent of Swansea Harbour. and nephew of Lord Justice James, left estate of the gross value of £96,054, of which the n t personalty has been sworn at £64.428. Mr. James left the sum of £1500 to his clerk, Mr. A. G. Richardson.
Mr. Hugh Spottiswoode, the editor of Printer's Pre, the ninth annual volume of which has just been published, is about to place the publication on a permanent footing. He has consulted a large proprietor of newspapers and magazines, who has valued the copyright of Printer's Pie at £10,000. In these circumstances he has decided to form a private limited liability syndicate with £10,000 preference shares. These shares will be placed in the hands of trustees of the Printer's Pie Trust, and the profits will continue to be divided among the institutions which have received them in the past.
At the pilots' conference at Liverpool on Wednesday the action of the Bristol Pilotage Committee in excluding representatives of Bristol pilots from participation in the conduct of examinations for pilots' licences [and masters' and mates' pilotage certificates was strongly condemned. Mr. Davies, of Swansea, spoke of the "parrot-like' system of examination in operation at Bristol as a betrayal of the public confidence. Mr. William Fish, of Fleetwood, said that the Bristol system was not nearly so bad as that of Fleetwood, where the captains were examined by their own marine superintendent. A resolution was adopted urging that the examinations be attended by local pilots' representatives, and, if they desired, by local ship.
At a Congregation held at Cambridge on the 25th ult., the ViceChancellor (the Master of St. John's) presiding, the degree of LL.D. (honoris causa) was conferred upon Sir Horace Edmund Avory, Corpus, Judge of the King's Bench Division of the High Court. The Public Orator, Dr. Sandys, in presenting Mr. Justice Avory, said that eighteen years had passed since members of the Supreme Court of Judicature had been added to the list of those members of the university on whom Cambridge had the power of conferring complete degrees honoris causa, and twelve since the degree of LL.D. ˆhad accordingly been conferred on an honorary Fellow of Peterhouse, then known as Sir John Gorell Barnes. Sir Horace Avory, who applied for the same degree, had been a scholar of Corpus Christi College, and captain of the College Boat Club, and was His Majesty's judge of the present assize. The Orator referred to Sir Horace's services as follows: "Nostis, in causis publicis per annos plus quam viginti erandis, accusatoris partes quanta iuris peritia, quanta assiduitate, ...quanta auctoritate egerit; idem res fisci quanto acumine tractaverit; quam praeclare denique ostenderit, populi salutem supremam esse legem."
A venerable member of the Paris Bar, Maître Carraby, retired from practice on Thursday of last week. He was an avocat of the ...Court of Appeal, a chevalier of the Legion of Honour, and was enrolled as an avocat as far back as 1851. Me. Pierre Etienne Carraby, who was born on the 4th May 1831, was a member of the council of the Order, but not their doyen, this distinction belonging to Me. Charles Limet, the poet lawyer, who was born at Auvers in 1820, a short account of whom will be found in the LAW TIMES of the 4th March last, p. 438. On the sixtieth anniversary of his being sworn in," the council of the Order, accompanied by the bâtonnier, Me. Busson Billaut, waited upon Me. Carraby and congratulated him upon the event. The old man was much affected by the high compliment paid him by his colleagues, and he showed his appreciation by handing over to the bâtonnier, as representing the Order, State bonds to the value of 33,000 francs (£1320), which is to be invested and the annual income given to an avocat who shall in the opinion of the council cf the Order be the most deserving. The Gaulois desired to interview Me. Carraby concerning his benefaction, but the donor adopted an attitude of modesty worthy of his high calling and himself. This is what he said: "Although now I am far away from the Palais my thoughts constantly turn towards her. It is with pleasure that I notice the young men with talents-talents recognised-the coming men. But, on the other hand, there are brave young fellows, always struggling, upon whom fortune does not smile. The little sum which I have set aside is for no other object than to aid one or other of such, whom the council shall consider the most deserving. That is all I have to tell you, and it is with reluctance that I have said this muh-car les journalistes sont parfois bavards c'est de ne rien ajouter à cette courte déclaration.': The comment of the Gaulois, it will be agreed by all who read these lines, is also worthy of its high position and the occasion: "Nous respectons votre désir, cher maître, mais vous nous permettrez bien de vous féliciter de votre joli geste.'
On the 27th ult., in honour of His Majesty's birthday, the Home Secretary entertained the following guests at Claridge's Hotel: The Lord Chancellor, Mr. Birrell, Mr. Burns, Mr. J. A. Pease, the Lord Chief Justice, the Lord Chief Justice of Ireland. Lord Mersey, Lord Macnaghten, Lord Shaw, Lord Robson, Mr. Alfred Emmott, M.P., Sir John Edge, Sir Andrew Scoble, the Master of the Rolle, Lord Justice Fletcher Moulton, Lord Justice Farwell, Lord Justice Buckley, Lord Justice Kennedy. Sir Samuel Evans, Mr. Justice Grantham, Mr. Justice Darling, Mr. Justice Joyce, Mr. Justice Swinfen Eady, Mr. Justice Warrington, Mr. Justice Bargrave Deane, Mr. Justice Neville. Mr. Justice Parker, Mr. Justice Pickford, Mr. Justice Hamilton, Mr. Justice Avory, Mr. Justice Horridge, Mr. Justice Lush, the Lord Mayor, Sie Ernest Hatch, Sir Kenelm Digby, Sir Henry Maxwell-Lyte, Sir Almeric FitzRoy. Sir Albert de Rutzen. Sir Albert Bosanquet, Mr. Masterman, Mr. Whitley, Mr. Herbert Lewis, Mr. F. E. Smith, Mr. Edward White, Alderman and Sheriff Johnston, Sheriff Buckingham, Mr. J. S. Churchill, Sir Edward Troup, Sir Henry Cunynghame, Sir Edward Henry, Sir Melville Macnaghten. Dr. Whitelegge, Mr. Redmayne, Mr. Blackwell, Mr. Byrne, Mr. Delevingne, Mr. Pedder, Mr. Aitken, Major Cooper-Key. Mr. Robertson, and Mesers. E. Marsh and Harris (private secretaries).
Sir Arthur Conan Doyle presided at a drawing-100w meeting held on the 25th ult. by the Divorce Law Reform Union at Hayter House, Cheniston gardens Studios, Kensington, by permission of Mr. and Mrs. Hugo Ames. The absence of any popular agitation, he said, had been given in both Houses of Parliament as the reason why they should not interfere with the present marriage laws, and the Reform Union therefore desired to give the public an opportunity of expressing their view of the great hardship and injustice that was being done to a large part of the community, so that when the report of the Royal Commission appeared-probably very soon-a strenuous effort might be made to obtain some stringent legislation that would have the effect of abolishing the present scandals created by the unjust marriage laws. They required in the way of reform nothing of an exaggerated nature. The principle "planks" in their programme were marriage laws equally applicable to both sexer, divorce to follow separation after the lapse of a certain period, a cheaper method of obtaining divorce for the poorer classes, and divorce in cases of permanent insanity. habitual drunkenness, and long periods of imprisonment. Mre. Hugo Ames and Mr. W. G. Ramsay Fairfax also addressed the meeting, and a resolution wae adopted, on the proposition of the chairman, strongly supporting drastic reform of the existing marriage laws of England.'
The decision of the judges of the Seine Assize Court, to the effect that the law separating the Church of France from the State removed the disability which formerly attached to the clergy from serving on juries, has had a somewhat interesting if not altogether satisfactory se quel. Father Barrué, after his dignified protest as reported in this column last week, withdrew, but the next day he again took hie place. The lots were again drawn, but M. Barrue's name remained in the urn. The substitute for the Advocate-General then announced that if M. Barrué's name should be drawn, he should ask the court to excuse him, for it seemed possible that if he sat it might be necessary to take the opinion of the Court of Cassation on the point. The priest, nothing daunted, attended the court on the following morning, and on this occasion M. l'Avocat-Général Dagousy was present himself. The name of Father Barrué was drawn fourth. No. protest was made on the part of the Public Prosecutor, or by the counsel for the defence, so the priest took his place among the jury. The case that had to be decided was a charge of fraud against a municipal offic'a', and the prisoner was acquitted. The Gaulois, a strong Clerical organ, understands that the other jurors were prepared to protest had further opposition been offered to Father Barrue serving.
A writer in the lay Press, referring to the temporary withdrawal, owing to ill-health, of His Honour Judge Willis, K.C., from his work. as County Court judge, describes him as a breezy personality, first when at the Bar and subsequently when on the Bench. In the House of Commons, in which the learned judge sat from 1880 till 1835 as member for Colchester, his career was eminently breezy. He united fighting qualities with profound constitutional lore, and very frequently expounded principles of Parliamentary practice and the conventions governing the relations of both Houses when making a vigorous onslaught on his opponente. When his efforts to re-enter Parliament at the General Elections of 1885 and 1886 unsuccessful, members in every quarter of the House regretted the absence of a highly taking personality. One of the learned judge's greatest Parliamentary triumphs was his all but successful effort to carry the following motion on the 21st March 1884, which was defeated by eleven votes only, although opposed by the Liberal Government of the day: "That the legislative power of bishops in the House of Peers in Parliament is a great hindrance to the discharge of their spiritual duties, prejudicial to the Commonwealth, and fit to be dealt with by Bill." On the 28th July 1884 he placed the following notice of motion on the paper, which is of interest as an unconscious anticipation of the constitutional crisis of nearly a generation later: "That it is necessary to declare that the House of Lords in rejecting the Representation of the People Bill for the purpose of forcing the Ministers of the Crown to dissolve Parliament has abused its authority and assailed the independence of this House, and in refusing its assent to the second reading of the eaid Bill because it did not contain provisions for the redistribution of electoral power has violated the fundamental right and privilege of this House to determine in what order it will redress the grievances which happen within the realm."