2. He cannot be compelled without his own assent to leave England upon public service in army or navy. But that consent once given cannot be withdrawn during the period for which it has been given.

3. It is very doubtful whether he can be compelled specifically to perform any contract, whether with Crown or subject, to serve abroad in any capacity which does not bring him within the Army or Navy Discipline Acts, or the Merchant Shipping Act of 1854.

WM. F. CRAIES.

IN

REMOTENESS AND PERPETUITY.

N the recent case of Whitby v. Mitchell1 it was held that where remainders are limited to children unborn at the date of the deed limiting them for the lives of those children, followed by remainders to such of their children as shall be living at the death of a party to the deed, the latter remainders are void.

6

The judgment professed to be based on the existence of an absolute rule independent of the rule against perpetuities' to the effect 'that any estate cannot be given to an unborn person for life followed by an estate to any child of such unborn person.'

The decision, if acquiesced in, will have accepted as part of the law of England a proposition which, previously, although stated as law by such masters as Mr. Sugden, afterwards Lord St. Leonards, and Mr. Joshua Williams, had not been judicially recognised, and had been doubted or dissented from by other writers of probably equal authority, and in particular by those authors who have specially treated of the head of law of which that proposition is now affirmed to form part. As Mr. Justice Kay based his decision solely on the authority of Mr. Joshua Williams, and neither his court nor the Court of Appeal appear to have had presented to it the reasons for doubting Mr. Williams's conclusion, I venture to state the authorities, so far as I have discovered them, in favour of and opposed to the decision in Whitby v. Mitchell, and the merits and demerits of the rule it establishes as part of the law.

Before doing so it will be convenient to consider some statements by judges and text-writers of high reputation concerning the parts of the law to which the proposition established in Whitby v. Mitchell is related. Of these the last in order of date may be taken first.

In a case heard by Mr. Justice Kay since his decision in Whitby v. Mitchell, the learned judge said :—

Contingent remainders were invented long before the rule against perpetuities, and were not originally subject to any such rule. But they were subject before this rule was invented to another rule which was thus expressed in the old legal language, that you could not limit a possibility upon a possibility, and the familiar illustration is that you could not limit by way of legal devise or conveyance

1 42 Ch. D. 494; aff. 44 Ch. D. 85.

a gift to A, an existing person for life with remainder to his unborn son for life, with remainder to any child of such unborn son. That last remainder was void, because, according to the phrase used by the old lawyers, it was a possibility upon a possibility. Now I think there is no question that this is the law to this day, although the reason for it has been contested by modern lawyers 1.

Mr. Fearne led the way to Mr. Justice Kay's position by stating the doctrine of double possibilities in the part of his great work which treated of contingent remainders and the rule against perpetuities in the part relating to executory devises 2.

Mr. Sugden, afterwards Lord St. Leonards, in the introduction to his edition of Gilbert on Uses,' published in 1811, which was afterwards reprinted in the successive editions of his 'Treatise of Powers,' wrote:

Remainders might have been limited to take effect at any period however remote. Questions of perpetuity did not arise till the simplicity of the common law gave way to the complications of modern conveyancing. But yet with a view to prevent inconvenient dispositions of property, it was held that a possibility could not be limited on a possibility; therefore an estate could not have been limited even by way of remainder to an unborn son of an unborn son as a purchaser. It was doubtful whether there would be a son born, but it was doubly so whether there would be a further male succession 3.

In the year 1832 the Real Property Commissioners said: All future interests not being remainders are restrained in their limits by the rules of the law relating to perpetuities,' and the section of their report relating to remainders, future interests and perpetuities is written on the assumption that the rule against perpetuities does not relate to remainders.

Mr. Joshua Williams, in his Treatise on the Law of Real Property,' of which the first edition was published in 1845, followed Mr. Fearne in stating the rule against perpetuities in his chapter on Executory Interests,' while that on 'Contingent Remainders' contains the following passage, which has been repeated in the subsequent editions:

In the reports of Lord Coke, however, a rule is laid down of which it may be useful to take some notice, namely, that the event on which a remainder is to depend must be a common possibility, and not a double possibility, or a possibility on a possibility, which the law will not allow. This rule, though professed to be founded on former precedents, is not to be found in any of the cases to which Lord Coke refers 5, in none of which do either

1 In re Frost, 43 Ch. D. 246, 251, 252.

3 1 Sug. Pow. 7th ed. Introduction ii.

2 F. C. R. 251, 502. Third Report, p. 29.

5 See these cases collected and stated in Mr. Gray's valuable Rule against Perpetuities,' Boston, 1886, pp. 81-86.

the expressions' possibility on a possibility,' or 'double possibility,' occur. It appears to owe its origin to the mischievous scholastic logic which was then rife in our courts of law, and of which Lord Coke had so high an opinion that he deemed a knowledge of it necessary to a complete lawyer. The doctrine is indeed expressly introduced on the authority of logic:- as the logician saith, potentia est duplex, remota et propinqua.' This logic, so soon afterwards demolished by Lord Bacon, appears to have left behind it many traces of its existence in our law; and perhaps it would be found that some of those artificial and technical rules which have the most annoyed the judges of modern times owe their origin to this antiquated system of endless distinctions without solid differences. To show how little practical benefit could ever be derived from the distinction between a common and a double possibility, let us take one of Lord Coke's examples of each. He tells us that the chance that a man and a woman both married to different persons shall themselves marry one another is but a common possibility. But the chance that a married man shall have a son named Geoffrey is stated to be a double or remote possibility. Whereas it is evident that the latter event is at least quite as likely to happen as the former. And if the son were to get an estate from being named Geoffrey, as in the case put, there can be very little doubt but that Geoffrey would be the name given to the first son who might be born. Respect to the memory of Lord Coke has long kept on foot in our law books the rule that a possibility on a possibility is not allowed by law in the creation of contingent remainders. But the authority of this rule has long been declining, and lately a very learned living judge has declared plainly that it is now abolished.

But, although the doctrine of Lord Coke, that there can be no possibility on a possibility, has ceased to govern the creation of contingent remainders, there is yet a rule by which these remainders are restrained within due bounds, and prevented from keeping the lands, which are subject to them, for too long a period beyond the reach of alienation. This rule is as follows;-that an estate cannot be given to an unborn person for life, followed by any estate to any child of such unborn person; for in such a case the estate given to the child of the unborn person is void. This rule is apparently derived from the old doctrine which prohibited double possibilities. It may not be sufficient to restrain every kind of settlement which ingenuity might suggest; but it is directly cpposed to the great motive which usually induces attempts at a perpetuity, namely, the desire of keeping an estate in the same family; and it has accordingly been hitherto found sufficient 1.

These passages suggest that contingent remainders appeared before other contingent limitations,-that the rules whereby the creation and existence of the former are governed were settled before those relating to the latter were recognised, that there existed long before the rule against perpetuities another rule whereby the

1 Williams' Real Property, 6th ed. 245.

power of creating contingent remainders was restricted, which was that a possibility cannot be limited upon a possibility: a rule expressed in several other ways and in this paper referred to as the rule against double possibilities,—and that the rule against perpetuities does not apply to contingent remainders. The above-quoted writers and Mr. Justice Kay further state that either the rule against double possibilities still governs the creation of contingent remainders, or if that rule does not exist, a single example of it exists, consisting of the proposition :—an estate cannot be given to an unborn person for life followed by an estate to any child of that unborn person.

Let us consider the parts of the theory in their order.

First, contingent remainders may have been limited before other contingent interests were created; but that such was the case is not certainly known. Sir Edward Sugden in arguing Cadell v. Palmer said, 'Lord Coke alludes to a few earlier cases in the Year Books' relating to executory devises, and Mr. Joshua Williams cited a passage in the last of the Year Books 2 which disclosed the existence as late as 1537 of a doubt whether any contingent remainder could be valid. About half a century earlier 'the authority of Littleton is express, that every remainder which beginneth by a deed must be in him to whom it is limited, before livery of seisin is made to him who is to have the immediate freehold ".'

Secondly, the rules whereby the creation and existence of contingent remainders are governed were not settled before those relating to other contingent interests were recognised. It was in the time of Lord Coke that the validity of a gift in remainder to become vested in some future contingency became well established*, and by decisions some of which Lord Coke reported and in others of which he participated, the validity of executory devises and bequests was recognised 5. Again, it is in Lord Coke's reports we find the commonly cited authorities for the doctrine of double and remote possibilities ", and it is a decision in which Lord Coke took part which has been called the Magna Charta of the Rule against Perpetuities 8.

Thirdly, the assertion of the rule against double possibilities dates from the same period. Although there are traces of the objection to the limitation of a possibility upon a possibility earlier than the

1

1 Cl. & F. 388; cf. Gray, Perpetuities, 79, 80.

2 Year Book, 27 Hen. VIII, 24 a: Williams, Real Property, 6th ed. 238; cf. Gray, Perpetuities, 87.

Ib citing Litt. s. 721.

Williams, Real Property, 6th ed. 240; cf. Gray, Perpetuities, 5.

5 Matthew Manning's case, 8 Rep. 94 b.

6 2 Rep. 50a, 51a; 8 ib. 73 a, 75 a; 10 ib. 46 b, 50 b.

7 Pells v. Brown, Cro. Jac. 590.

81 Cl. & F. 388.