LEASES BY A PERSON TO HIMSELF AND

OTHERS.

It is not infrequently desired in practice to prepare a lease to two or more persons, one of whom is the owner of the property proposed to be leased. Sometimes, for instance, a firm of partners arranges to occupy and take a lease of offices or other premises belonging to one of the partners. Such a lease, though not perhaps at first sight seeming to present any special difficulty, nevertheless brings into play several important legal principles which are apt to be overlooked by the unwary practitioner.

Doubtless the reader is well aware of the old rule at common law that a man could not convey to himself; nor likewise could he convey to himself and other persons. The expression "convey," in this connection, is, of course, used in its widest sense-that is to say, the maxim applies not only to conveyances of freehold property, but also to assignments of leasehold property, as well as to leases of either kind of property.

Thus, formerly, if A. wished to convey freehold property to himself and B., it was necessary for him to convey the property to a third person to the use of himself and B., and such a conveyance would, by virtue of the Statute of Uses, cause the property to become vested in A. and B. In the case of leasehold property, the Statute of Uses was not available, as there could be no seisin to the use of another, and consequently it was necessary to have two deeds, by the first of which the property was assigned to a third person, and by the second such person assigned it to the desired assignees.

Now let us consider how this former state of affairs has been affected by modern legislation. The first alteration in the law above stated was brought about by the Law of Property Amendment Act, 1859. By sect. 21 of that Act it is provided that a person should have power to assign personal property then by law assignable, including chattels real, directly to himself and another person or other persons by the like means as he might assign the same to another. The second alteration was effected by sect. 50 of the Conveyancing Act 1881. That section provides that a person may convey freehold property and choses in action to himself jointly with another person by the like means by which it might be conveyed by him to another person. The latter Act also provides (sect. 1) that, unless a contrary intention appears, conveyance" includes (inter alia) a lease of property, and convey" has a meaning corresponding with that of " veyance." In regard to the last provision, it should be observed that the earlier Act contains no provision in regard to the expression "assign" used in sect. 20 (above quoted) corresponding with that contained in sect. 1 of the latter Act.

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It will be seen from the above enactments that, owing to the interpretation clause contained in sect. 1 of the Conveyancing Act 1881, it is now permissible for a person to demise freehold property-that is, to grant a head lease thereof-directly to himself and another person. It is still, however, not permissible for a person to demise leasehold property-that is, to grant an underlease directly to himself and another. If it should be desired to effect such an underlease, it becomes necessary to consider how the arrangement can best be accomplished. Perhaps the most convenient plan, without the introduction of a third person or requiring two deeds, would be for the lessor to grant the underlease to his intended co-lessee in trust for both of them. If this is done, the lessee should then enter into the usual lessee's covenants with the lessor, who, in that case, ought to give an indemnity to the lessee against such covenants to the extent of the lessor's equitable share of responsibility in respect of them.

Where the desired lease is of freehold property, the matter, as we have seen, is simplified by the fact that the lessor can grant the lease direct to himself and others. But even in this case there is a difficulty to be contended with, which does not arise in the case of the underlease before considered. The difficulty referred to is with respect to the lessee's covenants. Just as a man cannot, in law, convey to himself, so also he cannot covenant with himself. This was well illustrated in the recent case of Ellis v. Kerr (102 L. T. Rep. 417; (1910) 1 Ch. 529). In that case, to put the matter concisely, in a marriage settlement the settlor and two of three trustees covenanted with the three trustees to keep a policy of assurance on foot and to pay the

premiums. Mr. Justice Warrington held that the covenant' being entered into by two persons with themselves and another jointly, was void.

Again, in a later case-Napier v. Williams (104 L. T. Rep. 380; (1911) 1 Ch. 361)-three trustees of a will as lessors leased to one of themselves as lessee a freehold house, and the lessee covenanted with the lessors (inter alia) to keep the property in repair and not to assign without the lessors' licence. Here, also, Mr. Justice Warrington, following his previous decision, held that, though the lease was not in itself invalid, the covenants, being by one person with himself and others jointly, were void.

From the above decisions it will be seen that in the case of a lease of freehold property by a person to himself and others, the lessees cannot covenant in the ordinary way with the lessor. This difficulty, it is suggested, might perhaps be met by confining the lessees' covenants to the lessees other than the lessor and limiting the responsibility in respect of the covenants to the proper share or proportion of the covenantors.

Before concluding this article, the case of Boyce v. Edbrooke (88 L. T. Rep. 344; (1903) 1 Ch. 836) might appropriately be referred to as dealing with a lease of somewhat similar kind to that we have been considering. There a tenant for life granted, or purported to grant, under the powers of the Settled Estates Act 1877, a lease of part of the settled property to himself and his two partners, and the lease contained the usual covenants on the part of the three lessees jointly. It was held by Lord (then Mr.) Justice Farwell that the covenants, being joint covenants by a man and others with himself, were not enforceable at law, and consequently the lease was declared to be void as not being in conformity with the Settled Estates Act.

In conclusion, it may be remarked that it is by no means felt that the foregoing observations fully dispose of this difficult subject. At the same time, it is to be hoped that they may be of some service to the reader in calling his attention to some of the points which arise in the preparation, not only of leases of the kind above discussed, but also of other legal documents which contain covenants between the parties.

STATUTORY AND OTHER PUBLIC DUTIES. MUCH discussion has been held amongst jurists as to whether the Constitution of England possesses certain fundamental laws and ideas of right which Parliament may not or ought not to change without express authority, such as the laws relating to personal security and proprietary rights: (see Haines, Am. Doct. of Judicial Supremacy, p. 26 et seq.). Whatever the true answer may be to this question, it is certain that Parliament is ever slow to interfere with personal and proprietary rights. As Fonblanque puts it (Equity, ii., 207), the preservation of every man's goods is the preservation of the Commonwealth. Private rights are, however, being subordinated to public interests more and more as time goes on (Lord Haldane, L.C. in Local Government Board v. Arlidge, 111 L. T. Rep. 905; (1915) A. C. at pp. 130, 131), but the old principles still remain in considerable strength.

To show the jealous protection which the Government, even when passing legislation beneficial to the public, exercises over private rights, we may cite Oriental Bank v. Wright (43 L. T. Rep. 177; 5 App. Cas. 842), showing that the rights of the individual will not be affected unless the words of the statute are very clear. Then, too, statutes which create penalties, or new offences, are always construed strictly in favour of the individual. Recognition of the same principle is also evidenced by the fact that Parliament is careful, where practicable, to provide for compensation to any who are likely to be injured by the exercise of statutory powers: (see Arnott v. Whitby Urban District Council, 101 L. T. Rep. 14; Hobbs v. Winchester Corporation, 102 L. T. Rep. 841; (1910) 2 K. B. 471).

The courts, too, in interpreting legislation, jealously distinguish between statutory powers which are directory and such as are permissive only, and anyone claiming to act under statutory powers must, if he asserts it, be prepared to prove that they were really directory and not merely permissive: (Metropolitan Asylum District v. Hill, 44 L. T. Rep. 653; 6 App. Cas. 193). Even

when such powers have been legitimately exercised, the old common law liability remains in force which requires persons possessing them to keep the work in good repair, so as to entail no further loss on others. Nor is the mere fact that the enabling statute clearly contemplates great benefits to the public to result from its provisions any reason for interpreting it loosely in favour of those executing its provisions: (Harrison v. Southwark and Vauxhall Water Company, 64 L T. Rep. 864; (1891) 2 Ch. 409). The above rules are fundamental legal principles, and they reflect their influence upon the interpretation of Acts of Parliament passed for the protection of persons who carry out statutory powers and other public duties.

Public duties are not undertaken by officials of their own volition or for their own advantage, but in the interest of the public, and those who perform them must, it is considered, not only be immune from liability so long as they keep within their powers, but also that they should be promptly challenged if they should, when acting bonâ fide (cp. Fry, L.J. in Midland Railway Company v. Withington Local Board, 49 L. T. Rep. 489), exceed their powers, so as to enable them to offer compensation for the injury without being subjected to hostile proceedings. In Irvine v. Wilson (1791, 4 T. R. 485) money had been extorted by duress by a revenue officer. In an action for its recovery it was held that, as it had not been obtained bonâ fide, it could be recovered without the usual notice of action. The earlier statutes on the subject dealt principally with statutory undertakings carried on by commercial associations, such as railway, gas, water, or tramway companies. Under such statutes the two most illuminating decisions are Palmer v. Grand Junction Railway Company (1839, 4 M. & W. 749) and Carpue v. London and Brighton Railway Company (1844, 5 Q. B. 747).

Such companies do not come within the scope of the Public Authorities Protection Act 1893 for the reasons hereinafter appearing. They have only their own special Acts of Parliament to rest upon.

In Palmer v. Grand Junction Railway Company (ubi sup.) the action was against the defendants for loss to goods carried on the company's railway. The special Act provided that notice. must be given to the company of "all proceedings against them of anything done or omitted to be done in pursuance of the Act, or in execution of the powers or authorities or of any of the orders made under the Act." Baron Parke, at pp. 767-8, held that the goods were carried under a private contract and not immediately in execution of a statutory duty. It would have been otherwise had loss arisen through a failure to perform such a duty as to keep fences in repair. His Lordship held that the status of the defendants was that of contracting carriers, and not of public officers. In Carpue v. London and Brighton Railway Company (ubi sup.) the claim was for negligence on the part of the defendants in carrying the plaintiff, and it was held that no notice of action was required, as the company was sued, not as proprietors in respect of their statutory works, but as common carriers in respect of a private contract to carry the plaintiff safely. Parker v. London County Council (90 L. T. Rep. 415; (1904) 2 K. B. 501) was a tramway case, but the defendants were a public body, and not a commercial concern. In giving judgment, Mr. Justice Channell observed that a commercial company would not, upon an allegation of negligence, be entitled to the statutory notice of action: (Attorney-General v. Margate Pier and Harbour Company, 82 L. T. Rep. 448; (1900) 1 Ch. 749).

His Lordship agreed that the public were to a certain extent interested in such concerns, but not sufficiently to justify its being said that it carried on its business under statute as distinct from acting on its own volition and in accordance with its own purposes: (Parker's case, sup., pp. 504, 505). In the case of a municipal body the expenses were paid out of the rates, and it would not be fair that a burden created at one time should be put on a later generation of ratepayers, which, his Lordship considered, might have been an argument in the mind of the Legislature, differentiating a commercial company from a municipal authority. It is true that the protecting provision of the Act then under consideration did not actually make such a distinction, but then the Legislature in years gone by could

scarcely contemplate a municipal commercial body as carrying on commercial enterprises.

Mr. Justice Farwell has expressly recognised the changed character of public authorities in recent years by observing in Sharpington v. Fulham Guardians (91 L. T. Rep. 739; (1904) 2 Ch., at p. 454) that public authorities now perform many functions which compel them to enter into all sorts of contracts. Hence where a municipal corporation became a harbour authority, with statutory powers to take tolls, it was held that it remained a public authority carrying out a public duty, although the particular duties were outside the scope of strictly municipal functions: (The Ydun, 81 L. T. Rep. 10; (1899) P. 236.

Under the Public Authorities Protection Act many decisions have been given as to whether this or that act of a municipal authority complained of can be said to have been done under statutory authority or in pursuance of some public duty or authority, the effect of which has now become fairly apparent.

In Midland Railway Company v. Withington Local Board (49 L. T. Rep. 489; 11 Q. B. Div., at p. 794) Brett, M.R was inclined to think that in drafting a similar provision in the Public Health Act 1875, s. 246, the draftsman had his mind directed to torts, and that the provision applied only to actions sounding in damages, but in this case and also in Edwards v. St. Mary's Vestry, Islington (60 L. T. Rep. 725; 22 Q. B. Div., at p. 341), his Lordship declared that the court had not to proceed on any assumption of that or any other kind, but had simply to construe the meaning of the words used in the Act.

In Ambler's case (87 L. T. Rep. 217; (1902) 2 Ch. 585, at p. 592), however, Lord Justice Romer said that in construing the Act the court ought to look at the general scope of the Act as expressed in its title. The fact that the Act operated hardly on a plaintiff must make no difference to its construction.

The leading word or idea in sect. 1 of the Public Authorities Protection Act 1893 is undoubtedly the word "duty." The word "authority" does not appear to extend the word "duty" so as to embrace voluntary acts.

A "duty" is some act done in pursuance of an obligation cast by statute which does not exceed the actual obligation so cast. Mr. Justice Farwell pointed out in Sharpington's case (sup., at p. 455) that this idea would at first sight appear to bring all contracts within the Act, for in one sense, as Mr. Justice Farwell pointed out in Sharpington's case, every contract must be entered into as a public duty or under statutory authority or it would be ultra vires. The learned judge, however, drew a line between obligatory duties and such as are voluntary. In Ambler's case (sup.) Lord Justice Romer said that the provision only applied to acts done directly in execution, or intended execution, of the Act. The distinction is made as clear as possible by Lord Justice Vaughan Williams in Lyles v. Southend-on-Sea Corporation (92 L. T. Rep. 586; (1905) 2 K. B., at p. 13), where his Lordship said that an act done in pursuance of some obligation incurred voluntarily and beyond the obligation cast by statute is outside the protection of the Act. Such acts have for convenience sake been termed acts incidental to the duty or authority: (Mr. Justice Farwell in Sharpington's case, sup., at p. 455). In the recent case of Myers v. Bradford Corporation, Lord Justice Buckley makes the distinction between the obligation and the incidental act very clear. The defendants were empowered by their Act to make and sell gas and also to sell coke as a residual product. They sold some to the plaintiff, and in delivering it their servant negligently broke one of the plaintiff's windows. Lord Justice Buckley observed that it may have been the defendants' duty to sell the coke, but not the particular ton to the particular man. The contract with the plaintiff was a "voluntary contract," although entered into under statutory authority. A contract is voluntary, said the learned judge, when it is in the volition of both parties to enter into it or not. No cases have occurred in which the Public Authorities Protection Act has been held to apply to a voluntary contract.

In Sharpington's case (sup.) the defendants' "duty" was to build a home for poor children. They entered into a contract with the plaintiff under which he undertook to execute the work for them. A dispute arose as to what payment the plaintiff was entitled to under the contract. It was held that, although the

duty to build a home was a "duty," the non-performance of which would affect the children, or, perhaps, the public, yet in carrying out the duty the defendants had entered into a private contract, which did not fall within the terms of the Public Authorities Protection Act. The construction by a municipal authority of an electric railway, under statutory authority, is a duty as also is its maintenance.

The carriage of passengers would be a contractual matter in the case of a commercial company, in connection with which a tort-e.g., negligence-might arise, but in the case of a municipal tramway or railway it is a duty. The reasons given for this distinction are as follows: (1) The fact that the profit and losses go to or are thrown on the rates and that the Light Railways Order was sanctioned at the instance of the authority, whose duty it was to levy the rate, is legislative recognition of the duty of the public authority in respect of the carriage of goods and passengers thereon: (Lyles' case, sup., at p. 17). (2) In the case of such a tramway and passenger there is no contract, because the passenger does not invite the company to carry him. He merely asks to be carried. Neither side makes an offer. The basis of the transaction is a statutory duty: (Lord Justice Phillimore in Myers' case). He held that the fact that the public authority was empowered to lease the undertaking would make no difference to its character.

In Chamberlain and Hookham Limited v. Bradford Corporation (83 L. T. Rep. 518) it appeared that the defendants had obtained meters from third parties and let them out on hire. The plaintiffs were the owners of the patent for such meters. Mr. Justice Kekewich held that the defendants had merely per. formed their duties within the meaning of the defendan's' Provi sional Order, and were entitled to notice of an action to restrain the infringement of the patent, and the fact that contractual relations had supervened between the defendants and the sellers and the defendants and the customer did not remove the defendants from the protection afforded by the order.

COMMENTS ON CASES.

Certiorari applied for by Crown.

THE difficult question that was raised in the recent case of Rex v. Amendt (noted ante, p. 431) called forth a decision of the Court of Appeal that is of much practical importance: The Crown is not bound by rule 21 of the Crown Office Rules 1906, and the time limit therein fixed of six calendar months within which to apply for a writ of certiorari next after any judgment, order, conviction, or other proceeding, does not affect the Crown. In thus reversing the decision of the Divisional Court, the Court of Appeal gave consideration to two cases to which it does not seem that any reference was made in the judgments of the learned judges in the court below. They were cited, it is true, in the course of the arguments, but not in the judgments. Those two cases were Rex v. Inhabitants of Clace (4 Burr. 2456, at p. 2458) and Rex v. Battams (1 East, 298). In the former case, Lord Mansfield stated that he believed that there was a distinction between an indictment only in the name of the Crown, as all indictments must be, and an indictment actually prosecuted by the officer of the Crown. And his Lordship referred to the unreported case of Rex v. Tindall, in which he was then himself Attorney-General, remarking that it was there held that the King had a right in every case where the Crown was concerned to demand a certiorari, and that the court were bound to grant it, unless the King's right to it was restrained by some Act of Parliament. The other case of Rex v. Battams (ubi sup) was cited because of the note thereto (at pp. 303, 304 of 1 East). Mention is there made of the distinction that prevails in the practice of the Crown Office between the case of the Crown and that of a private person in regard to a certiorari. After directing attention to the unreported cases that Lord Mansfield said that he had in his mind when giving his judgment in Rex v. Inhabitants of Clace (ubi sup.), a further unreported case of Rex v. James (M. 26 Geo. 3) is cited. It appears that the court there granted the AttorneyGeneral a certiorari to remove a record of conviction after six

months, although the statute 5 Geo. 2, c. 18, expressly directs that the certiorari shall be applied for within that time. Rex v. Stannard (4 T. R. 161) is likewise referred to. The Court of Appeal in the present case considered that the same construction should be placed upon rule 21 of the Crown Office Rules 1906 as upon sect. 5 of the statute from which that rule was derived-an incontrovertible conclusion, it would seem. And if the learned judges of the Divisional Court had equally taken Rex v. Inhabitants of Clace (ubi sup. and Rex v. Battams (ubi sup.) as their guide, their Lordships would doubtless have come to the same conclusion. For the section is in identical terms with the rule.

Reduction of Payments for Maintenance of Wife.

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WITH modifications too trivial to call for mention, sect. 1 of the Matrimonial Causes Act 1866 (29 & 30 Vict. c. 32), which was repealed by sect 2 of the Matrimonial Causes Act 1907 (7 Edw. 7, c. 12), was reproduced in the later Act, and forms sect. 1, subsect. 2 (a), thereof. The important decision of the Court of Appeal in the recent case of Hall v. Hall (noted ante, p. 456) was upon the Act of 1907. The fact that the order in question in that case was made in 1906 did not necessitate the earlier Act having to be resorted to. Under the sub-section, inability to make payments for the maintenance and support of a wife on the part of her husband is a ground for warranting the court in relieving him from his liability to make the same. But the sub section affords no clue as to whether, in circumstances such as presented themselves for consideration in Hall v. Hall (ubi sup.)—cɔmmon enough as, doubtless, they are-a reduction of payments made for that purpose can be ordered by the court. All that the sub section empowers the court to do if the husband afterwards from any cause becomes unable to make such payments" is "to discharge or modify the order or temporarily to suspend the same as to the whole or any part of the " payments. The grounds for claiming a reduction in the present case, as stated in our note, were certainly of a nature to justify that claim to the full. Very different was the case of Neil v. Neil (4 Hagg. Eccl. Rep. 573), which was relied upon in opposition to the claim in so far as the diminution of the husband's income was a reason why the payments for maintenance should be reduced. Similarly, the case of Sharpe v. Sharpe (99 L. T. Rep. 884; (1909) P. 20), which was cited in reference to the improvement in the wife's income, was not an actual decision on that point. All that Mr. Justice Bargrave Deane there said was that if a wife came into a substantial income thereafter, there was nothing in the Act of 1907 which enabled the husband to apply to vary the order for maintenance when once it had been made. In alluding to that casus omissus— a state of affairs that has been unfortunately overlooked as his Lordship remarked-the learned judge was merely anticipating a possible future event in the case before him. But, as was said by Lord Justice Phillimore in the present case of Hall v. Hall (ubi sup.), the statute does not tie the hands of the court where the hands of the court were free before. Accordingly, the Court of Appeal did not hesitate to repair the statutory omission. It is said that this decision will revolutionise the present practice. But unquestionably it involves a change that ought to be made.

"Policy" and "Instrument Evidencing a Contract."

THE decision of the majority of the learned judges of the Court of Appeal-the Master of the Rolls (Lord Cozens Hardy) and Mr. Justice Joyce-with which Lord Just ce Phillimore could not see his way to concur, throws considerable light on the meaning of certain especially material words of sect. 30 (a) of the Assurance Companies Act 1909 (9 Edw. 7, c. 49). The case is noteworthy, therefore, apart from any probability that there will be a widespread recourse to the ingenious and enterprising undertaking which was introduced in the recent case of Hampton v. Toxteth Co-operative Provident Society Limited (noted ante, p. 455) to benefit purchasers of goods from a co-operative society through the medium of a scheme for providing a sum to be paid on the death of a purchaser. For the decision therein cannot fail to prove to be by no means devoid of much general interest and importance. By the sub-section, "policy on human life shall mean any instrument by which the payment of money is

assured on death (except death by accident only) or the happening of any contingency dependent on human life, or any instrument evidencing a contract which is subject to payment of premiums for a term dependent on human life." That definition -which, to say the least of it, is expressed in somewhat crabbed and not very easily intelligible terms-was the cause of the difference of opinion between Lord Justice Phillimore and his learned colleagues on the Bench. Did the scheme that was adopted by the society in the present case, as outlined in our note, constitute the carrying on of the business of life assurance, within the meaning of sect. 1 of the Act? In the first place, no "policy" was issued in the ordinary acceptation of that word. The only documents that were supplied to a member of the society were a membership card, a purchase book, and a print of the rules of the society. Neither the Master of the Rolls nor Mr. Justice Joyce could be induced to regard the membership card as a "policy," or as an instrument evidencing a contract." It is to be gathered, therefore, that, in the opinion of their Lordships, it is necessary that the instrument that is contemplated by the sub-section should be of a much more definite character than a document, the mere possession of which warrants a claim for benefits in the nature of life assurance. Whether there was a "payment of premiums " had next to be considered. The contention was that a portion of the excess of the price paid by a member for every article purchased by him over cost price was a premium paid to insure a sum at death. Although that contention was one that prevailed with Lord Justice Phillimore--and there seems to be a good deal of reason for thinking that the learned judge took the right view of it (see the authority upon which his Lordship relied-namely, Nelson and Co. v. Board of Trade, 84 L. T. Rep. 565, at p. 567)— yet it failed to make any impression upon the other members of the court. The arrangement was, in the view that they took, nothing more than an appropriation of income, or possibly of capital, which might at any moment be terminated by the vote of a special general meeting of the society.

THE CONVEYANCER.

Payment of Premiums on Husband's Life Policy by Wife-Lien.

THERE is an impression among many persons that if they are even remotely interested in a policy of life insurance, and if they pay the premiums for keeping it up, they are entitled to a lien on the policy for the premiums so paid. This, however, is not so except in certain cases. It was decided as long ago as Re Leslie; Leslie v. French (48 L. T. Rep. 564; 23 Ch. Div. 552) that when a person, not the sole beneficial owner, pays the premiums to keep up a policy of life insurance, he is entitled to a lien on the policy or the proceeds thereof in the following cases: (1) By contract with the beneficial owner; (2) by reason of the right of trustees to an indemnity out of their trust property for money expended by them in its preservation; (3) by subrogation to their right of some person who at the request of trustees has advanced money for the preservation of the property; (4) by reason of the right of a mortgagee to add to his charge any money paid by him to preserve the property; and that in no other cases could a lien on a policy for premiums paid be acquired either by a stranger or by a part owner of the policy. In Re Leslie the facts were very shortly as follows: In 1843 E. F., a widow, insured her life for £5000. Shortly afterwards she married the testator, Leslie, and on that occasion handed to him the policy, and he thenceforth until his death paid the premiums out of his own moneys. In 1863 a settlement was made, to which Mr. and Mrs. Leslie were parties, on the occasion of the marriage of their daughter with Mr. Trevelyan. By that settlement Mr. Leslie covenanted to pay to the trustees thereof on the death of his wife £6000 for the benefit of Mr. and Mrs. Trevelyan and their issue, and Mr. Leslie assigned the aforesaid policy to the trustees as security for £6000, and covenanted to pay the premiums on the policy during the life of his wife. Subsequently, in 1863, by his will he Second Sheet.

bequeathed any surplus of the policy moneys, after payment of the £6000, upon the trusts of the said settlement. He also made some small specific bequests to his wife, which raised a case of election between her right to the policy, which he had never reduced into possession during her life, and the benefits given to her by his will. He died in 1877, leaving his wife surviving. After his death the premiums were paid by his executor out of his estate. In an action by his executor against Mrs. Leslie and the persons interested under the said settlement, claiming a lien on the policy for the premiums paid by Mr. Leslie and his executor, it was held by Lord Justice Fry (who had just been appointed to the Court of Appeal) that the plaintiff had no lien. In the course of a very interesting judgment his Lordship said: "The law relating to confusion appears to me stronger to show that no such right [namely, in the case of payment of premiums by a stranger] would exist. If I pour out my gold into your heap, or put my silver into your melting-pot, or turn my corn into that in your granary, I have no right to an account, or any relief against you, but, on the contrary, I have actually transferred the property in what was mine to the person with whose property I have mingled it." He also observed that the right of contribution was a personal right, and conferred no lien. Further, that the law of contribution arose only between persons joined for a common purpose, or persons in the position of tenants in common or coparceners, and he concluded that Mr. Leslie made the payments in question down to the date of the settlement in maintenance of his own right in the policy; and afterwards in pursuance of his covenant with his daughter's trustees; but that in no case did he make them by reason of any contract between himself and his wife, or by reason of any mistake as to his title to the policy. The question has recently come before Mr. Justice Astbury in Re Jones; Stunt v. Jones (ante, p. 383). In that case, by a marriage settlement made in 1876, certain property belonging to the wife, and policies on the life of the husband, were settled in trust for the wife for life, and after her death for her husband for life, or until he incumbered, and subject thereto in trust for the issue as the husband and wife should by deed appoint, and in default as the survivor should in like manner or by will appoint, and in default for the children who being sons attained twenty-one, or being daughters attained that age or married, in equal shares. The husband covenanted to pay the premiums, with a proviso that the trustees might, with the wife's consent, apply any part of the income or capital in payment of the premiums. The trustees were not to be bound to enforce the husband's covenant. In 1905 the wife and husband appointed the trust funds, subject to their life interests, to their only child, N., for life, and after her death for her children, and in default of children to N. absolutely. The appointors reserved to themselves or the survivor power to revoke such appointment. From the year 1890 the wife voluntarily paid the premiums on the policies. The husband died in 1914, and thereupon the wife wrote to the trustees of the settlement claiming payment to her out of the policy moneys of the amount she had paid for premiums; and in her letter said that, if she was not entitled to such payment, she proposed to revoke the joint appointment made in 1905, and release her, power, and that then she and her daughter would direct payment out of the policy moneys. Held, by Mr. Justice Astbury (following Re Leslie), that the wife was not entitled to be recouped. As pointed out by the learned judge, the wife was not a life tenant of the policy moneys when she made the payments.

Release of Power of Appointment-Fraud on Power.

IT is well settled that a particular power of appointment, such as a power to appoint among children, can be released. even though the effect of such release will be to benefit the donee of the power: (see Re Radcliffe; Radcliffe v. Bewes, 66 L. T. Rep. 363; (1892) 1 Ch 272, C. A.; and Re Somes; Smith v. Somes, 74 L. T. Rep. 49; (1896) 1 Ch. 250). In the latter case the facts were very shortly as follows: A fatber, tenant for life under his marriage settlement, had, in the events which had happened, an exclusive power to appoint for the benefit of a daughter or her issue, and in default of appointment the fund went to the daughter absolutely; the father, being in want of money,

released this power, and subsequently he and his daughter mortgaged their interests in the fund for £10,000, the whole of which was paid to the father, and applied by him for his own purposes. Held, by Lord Justice Chitty (then Mr. Justice Chitty), that the release was valid. In the course of his judgment his Lordship said that it appeared to him that there was a fallacy in applying to a release of a power of that kind the doctrines applicable to the fraudulent exercise of such a power. There is no duty imposed on the donee of a limited power to make an appointment. There is no fiduciary relationship between him and the objects of the power beyond this, that, if he dues exercise the power of appointment, he must exercise it honestly for the benefit of an object of the power, and not corruptly for his own personal benefit; but the learned judge could not see any ground for applying that doctrine to a case of the release of a power. The donee of the power might, or might not, be acting in his own interest, but he was at liberty to say that he would never make any appointment under the power, and to execute a release of it. If, however, the court is called on to exercise its judicial discretion in other respects (as, for instance, under sect. 7 of the Conveyancing Act 1911), the court may take into consideration the object of the release, and refuse to assist in giving effect to it as in Re Little; Harrison v. Harrison (60 L. T. Rep. 246; 40 Ch. Div. 418). When, however, as in the case of Re Jones' Settlement above cited, a parent has made an appointment to a child, reserving a power of revocation, such power (as decided by Mr. Justice Astbury in that case) is as fiduciary as the original power, and cannot be exercised with the object of getting a benefit for the appointor, a stranger to the power. It is true that in Shirley v. Fisher (47 L. T. Rep. 109) a parent was allowed to exercise a power of revocation of the kind. In that case trust funds were settled upon the children of a marriage, subject to a power of appointment among them by their father. There were four children, one of whom died in 1869, a bachelor and intestate, and his father became his legal personal representative. In 1876 the father appointed the trust fund to the other three equally, reserving to himself a power of revocation. In 1880 he revoked this appointment, and proposed to execute a release of his power, and claimed the deceased son's share as his legal personal representative. It was held by ViceChancellor Bacon that there was no evidence of fraud, and that the father was entitled to the share. But, as observed by Mr. Justice Astbury in Re Jones' Settlement, in Shirley v. Fisher there was no intention on the part of the father of obtaining more than the law would have given him if the original appointment had not been made.

Particular Charities.

WHERE a charity to which a legacy has been given becomes amalgamated with another charity before the testator's death, no one can say for certain what the testator would have wished done with the legacy. The death of a person, unless he is within the exception created by sect. 33 of the Wills Act 1837, in whose favour a testamentary disposition has been made, makes that disposition to lapse. So if the charitable institution had wholly disappeared before the testator's death there would be a lapse of any legacy to it unless the doctrine of cy-près applies. Mr. Justice Parker (as he then was) discussed in Re Wilson (108 L. T. Rep. 321; (1913) 1 Ch. 314) the two classes of cases relating to the failure of a particular charity. If the paramount intention of the testator was for a general charitable purpose rather than a particular one, the court steps in and directs a scheme for carrying out as far as possible the testator's wishes. If, on the other hand, there is no general charitable purpose, the gift must fail. The doctrine of cy-près may be applied, though the charity was in existence at the testator's death. Thus, in Re Cunningham (110 L. T. Rep. 371; (1914) 1 Ch. 427), where a testatrix left a house, which she held on a 999 years' lease, to a charity and gave an annuity to maintain it as a home for the charity, and the house was sold after her death, Mr. Justice Astbury held that the annuity would not fail, but must be applied cy-près. The case of amalgamation presents some difficulty, as may well be that the testator was interested in a particular charity, and if that is swamped in some large one he may not

it

take the same interest, and of course the official of the old charity can no longer give a receipt for the legacy. On the other hand, if the testator was interested in a particular form of charity, it would be argued that he probably desired the gift to remain, though the smaller charity had become merged in a larger. Re Pritt (noted ante, p. 457) is a case in point. The legacy was to the N. P. Union, and before the testatrix's death this was amalgamated with the N. C. League. The testatrix was aware of the amalgamation and gave a subscription to the league. Mr. Justice Eve held that the league was entitled to the legacy. This case is also interesting on a point of practice. The league was an unincorporated charity and therefore could not be sued as a body, and it was practically impossible for all the members to be sued. The learned judge held that in such a case the proper method was to sue A. B., being the treasurer, secretary, or other responsible officer of the charity, on behalf of the charity, naming it.

NOTES OF RECENT DECISIONS NOT YET REPORTED.

BY OUR REPORTERS IN THE SEVERAL Courts.

HOUSE OF LORDS.

Trade Competition-Passing off-Misrepresentation as to Plaintiffs' Goods.

Appeal from an order of the Court of Appeal reversing a decision of Sargant, J. For about three years. previous to 1910 the plaintiffs advertised and sold footballs under the name of "Orb 64 or Improved Orb" footballe. In 1910, defects having been found in the making of the balls, the plaintiffs discarded a large number of them as unsatisfactory and sold them as waste rubber to a firm who resold them to the defendants. In 1912 the plaintiffs brought out a rew ball, the seams of which were not merely moulded together but sewn, and advertised it as the " Improved Sewn Orb "Improved Orb," or "Specially Tested Orb," Patent No. 15,168, at 10s. 6d. each. In 1912 the defendants advertised the old "Orb" balls for sale at 49. 9d. each, under the description of 'Improved Orb" footballs, with the addition of the Patent No. 15,168. The plaintiffs thereupon wrote to the defendants pointing out that the advertisements were not justified, and, although the defendants at once gave an undertaking to cease advertising the footballs in the way complained of, the writ in the action was issued. The plaintiffs claimed an injunction restraining the defendants from selling, adver tising, offering for sale, or supplying footballs other than the plaintiffs, "Improved Orb" or Specially Tested Orb" footballs as and for the plaintiffs' "Improved Orb" or "Specially Tested Orb" footballs. Sargant, J. granted an injunction together with an inquiry as to damages. The Court of Appeal were of opinion that the untrue representation had deceived no one, and, the defendants having withdrawn the advertisements as soon as their attention was called to the matter, the plaintiffs were not entitled to succeed in their action. The plaintiffs appealed.

Held, after consideration, vhat there had been a passing off, and that the judgment of Sargant, J. must be restored.

[A. G. Spalding and Brothers v. A. W. Gamage Limited and others. H. of L.: Viscount Haldane, L.C., Lords Atkinson, Parker, Sumner, and Parmoor. Feb. 5, 9, and March 23.Counsel: for the appellants, Sir Robert Finlay, K.C., Martelli, K.C., and A. F. Topham; for the respondents, A. J. Walter, K.C. and Kerly, K.C. Solicitors: Lawrence, Webster, Messer and Nicholls; Ward, Perks, and Terry.]

COURT OF APPEAL. Cinematographs-Application by Company for Renewal of Licence -Majority of Shareholders of Company Alien Enemies-Refusal by County Council to renew-Mandamus-Cinematograph Act 1909 (9 Edw. 7, c. 30), s. 2.

Applicants' appeal from a judgment of the Divisional Court (Lord Reading, C.J., Bray and Shearman, JJ.) of the 22nd Feb. Two rules calling on the L. County Council to show cause why a writ of mandamus should not issue commanding them to hear and determine according to law certain applications on behalf of the London and Provincial Electric Theatres Limited (the applicants for the rules) for the renewal of cinematograph licences and of music licences in respect of certain theatres in the county of London. The rules were obtained upon the grounds: (1) That the council had failed to hear and determine