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uses, involving as one consequence a diminution of familiarity among lawyers with the distinction between the two kinds of limitations. Especially does it appear inconvenient when the ineradicable instinct to find a reason for a rule drives those who recognise that under consideration to set up again, as Mr. Justice Kay has in a case heard by him since Whitby v. Mitchell1, the doctrine described and repudiated within perhaps a century of its first mention that you could not limit a possibility upon a possibility.' Hereafter advocates and judges will seek for reasons for these unreasonable rules, and citing the words of Mr. Justice Kay, 'the mischief is the same,' will enquire whether the rule now recognised must not have some wider application. The admission of that rule as a part of the law tends not only to the discredit of the law as a rational system, but also to its incertitude. One doubt will be, whether in this respect equity follows the law and governs equitable remainders by this rule. Another will be that already adverted to, whether that uncertainty of voice which respect for Lord Coke, according to Mr. Williams, has induced in lawyers including, indeed, himself with reference to the doctrine of double possibilities, for he acknowledges it in one sentence and repudiates it in another, may not be revived by Whitby v. Mitchell and In re Frost, so that we may again hear arguments concerning the invalidity of limitations because they are possibilities on possibilities, or double or remote possibilities, and concerning the meaning of those terms and the instances of them which do and those which do not invalidate limitations,—and whether the doctrine concerning them relates to remainders only or to other contingent gifts also.

In view of the chance of the question whether the doctrine of double possibilities is part of the law being revived, it will be well to consider, in addition to Mr. Williams's above-cited objections to it, the following definition of the doctrine given by Mr. Josiah W. Smith:

A limitation may be made to depend on any number of contingencies, even though they may be engrafted on each other, so long as each amounts to a common probability, and so long as they may, according to common probability, grow out of, or be connected with, each other, in the manner specified by the instrument containing the limitation. But a limitation is invalid, when made to depend on a single contingency, if it is made to depend on a remote possibility, or when made to depend on two contingencies, if, according to common probability, they do not grow out of, or are not connected with, each other, in the manner specified 2.

In re Frost, 43 Ch. D.

2 Original View of Executory Interests, ss. 697, 698, citing Fearne, C. R. 250-252 and Butler's note.

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Mr. Challis appears to have a tender feeling towards the doctrine and writes: The maxim against double possibilities, when rightly viewed, is nothing worse than a somewhat clumsy restriction upon the remoteness of legal limitations; and some of the criticisms which have been passed upon it are much more foolish than the maxim itself1.' This passage makes me think it possible that there may be more in the doctrine than has been shown by its cited. propounders, but as exhibited by Mr. Williams and Mr. Josiah Smith its features are not attractive.

The propositions I have endeavoured to prove are, First, that, unless there are authorities yet uncited, there was not before Whitby v. Mitchell any judicial authority for the statement that there exists an absolute rule independent of the rule against perpetuities to the effect that an estate cannot be given to an unborn person for life, followed by any estate to any child of that unborn person-a rule which, according to the same authority, applies, though the limitation be so qualified as that the remainder must vest within the period required by the rule against perpetuities; Secondly, that the non-judicial authorities in favour of the doctrine taught by Whitby v. Mitchell are not only modern, indefinite, and discrepant, but based on misconceptions; Thirdly, that there are many weighty authorities, including the observations of judges on the bench, opposed to the doctrine of Whitby v. Mitchell; and, Fourthly, that that doctrine is inconvenient.

J. SAVILL VAIZEY.

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P.S. Since this paper has been in type Mr. John C. Gray has done me the honour of reading it in proof, and the kindness of pointing out an omission. The opinions of Mr. Booth and Mr. York in 1769, though the first of the authorities commonly cited for the doctrine of Whitby v. Mitchell, were given later by ten years than the first hint of its existence discovered by Mr. Gray. The first suggestion to be found in the books that the doctrine of the invalidity of successive remainders for life is an independent original rule, and that the provisions of law concerning remoteness in conditional limitations have been copied from it, is to be found in Lord Keeper Northington's judgment in Marlborough v. Godolphin 1, above referred to by its name in Brown of Spencer v. Marlborough. His words were: 'Though by the rules of law an estate may be limited by way of contingent remainder to a person not in esse for life, or as an inheritance, yet a remainder to the issue of such contingent remainderman as a purchaser is a limitation unheard of in 2 Gray, 137.

1 Real Property, 92.

law, nor ever attempted, as far as I have been able to discover. Why the law disallowed these kind of limitations I will not take upon me to say, because I have never met in the compass of my reading with any reason assigned for it: and I shall not hazard any conjecture of my own; for technical reasons upheld by old repute and grown reverend by length of years bear great weight and authority, but a new technical reason appears with as little dignity as an usurper1.' In a subsequent passage Lord Northington also used language which suggests the existence in his mind of the idea that some other and older rule than that against perpetuities gave a bound to the limitation of remainders 2. Nevertheless, perpetuity' was the solid foundation of Lord Northington's judgment, to which he again and again recurs; and Mr. Gray, in his work on Perpetuities already cited, concludes his comment on the whole case thus:

It is submitted that the statement of the counsel in the House of Lords, that the doctrine is a corollary of the Rule against Perpetuities, is not only more reasonable, but is historically correct 3.

Having had the privilege of seeing Mr. Vaizey's paper in manuscript, I should like to make one or two remarks thereon. For the sake of brevity it is expedient to use some short expressions to denote the rules or alleged rules which are under discussion. The rule adopted by Mr. Justice Kay and the Court of Appeal in Whitby v. Mitchell on the authority of Mr. Joshua Williams I may take the liberty of referring to as Mr. Joshua Williams' rule;' the 'rule against double possibilities' may express the suggested origin of Mr. Joshua Williams' rule; and Mr. Lewis' rule' may denote the ordinary rule of remoteness which regulates at all events the creation of successive interests in personalty.

Now in Whitby v. Mitchell the limitation which was under discussion conformed to Lewis' rule, but was held bad for violating Joshua Williams' rule. Mr. Justice Kay did not put his decision on the rule against double possibilities, but in Re Frost he referred to Whitby v. Mitchell as having been decided on the ground of the existence at the present day of the rule against double possibilities, and that rule he gave as one of the grounds of his decision in Re Frost. And he further decided in Re Frost that Lewis' rule applies to remainders. Since then the Court of Appeal has in Re Hargreaves, 43 Ch. Div. 401, decided that Lewis' rule applies to equitable remainders.

Mr. Vaizey has produced very strong arguments against the existence of either Mr. Joshua Williams' rule, or the rule against 3 Gray, 139.

1 1 Eden, 415, 416.

2 Ib. 418, 419.

double possibilities. As to the latter, I have no remark to make. But Mr. Vaizey cannot argue against the existence of Joshua Williams' rule, without showing that remainders are restrained by some other rule, and accordingly he contends (and certainly in very good company) that Lewis' rule is applicable to remainders; and it is on this contention that I venture to comment.

I assume without prejudice that Lewis' rule must be taken with the following amplification, viz. that a limitation which would otherwise be bad for transgressing the line, is not rendered good by being so limited that it is or must necessarily become transmissible and alienable within the line. For instance, a settlement of money in trust for 4 his executors administrators and assigns for 100 years, and then upon trust for B his executors administrators and assigns, would, I assume, be bad. If so, in discussing the question of remoteness, it will be immaterial whether a remainder is vested or contingent.

Now if Lewis' rule be taken with this amplification, I submit that it cannot be a true proposition that it applies to all remainders; for if it did, the normal form of a marriage settlement of realty would be bad. Take a settlement in the following form: To the use of A (the intended husband) for his life, with remainder to B and C their executors administrators and assigns for 500 years, with remainder to the first son of the marriage in tail. Why is this not bad, if you must conform to Lewis' rule? Surely the mere fact that you put a trust on B and C cannot make a difference.

I submit therefore that Lewis' rule does not without some modification apply to all legal remainders. Unless some modification be suggested, or some mark or characteristic be pointed out by which we may know to what class of legal remainders it is to apply, might not we conclude that it does not apply to any legal remainders?

If this conclusion is correct, legal remainders would be left without any restraint, unless they are subject to some other rule. It must be a rule peculiar to themselves, for no other rule than Lewis' rule has been suggested as applicable to personalty settlements. And in searching for such a rule, provided that the existence of some such rule, the terms of which we do not know, be placed beyond doubt, what is the objection to referring to the practice of conveyancers as Mr. Joshua Williams does?

With regard to remainders after estates tail, is it correct to say that the reason why they are valid is not that they are remainders, but that they are barrable? How was it before the method of barring remainders by recovery was invented?

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G. H. BLAKESLEY.

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TINKERING COMPANY LAW.

FTER her marriage with Prince Albert, the Queen often pressed Lord Melbourne that the Prince should be created a King Consort. Let us hear no more of it, Madam,' said the sagacious old minister. If you once teach the people of England the habit of making kings, they will soon learn to unmake them.' The habit of making and unmaking laws is an equally bad lesson for a people to learn; for it is the immutability of law, 'the law which altereth not,' which impresses the imagination, and is the root of reverence. The people of Crotona recognised this in a very practical way. Any one who proposed a change of the law was to appear in the assembly with a halter round his neck, which was immediately tightened if he failed to carry his bill. This heroic remedy for rash legislators is perhaps not yet within the range of practical politics, but it may well rebuke the recklessness of our modern legislation, 'laws heaped on laws,' which is not only sapping the reverence for law, but derogating from what Lord Bacon calls 'that primary dignity of the law, certainty.' Melancholy as is this want of reverent care' in tampering with the law, it is not more melancholy than the manner of our legislation. 'There are two ways in use of making new statutes,' says the philosophic Chancellor, one confirms and strengthens the former statutes in the like cases, at the same time adding or altering some particulars : the other abrogates and cancels all that was enacted before, and instead thereof, substitutes a new uniform law. And the latter is the best. For in the former the decrees become complicated and perplexed, and though the business be performed, yet the body of laws in the meantime becomes corrupt: but in the latter, greater diligence must be used when the law itself comes to be weighed anew, and what was before enacted to be reconsidered antecedent to its passing by which means the future agreement and harmony of the laws is well consulted 1.'

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Modern legislators have not chosen the better part. The English mind, by a curious paradox, is constitutionally distrustful of change while full of reforming energy. The result is a superabundance of legislation, but of a tentative and temporising kind, unscientific, crude, confused; the despair of judges, and of all who value law as a science. Take the Married Women's Property Acts. The principle of separate property has been familiar since the days of Charles I.

1 Bacon, De Augm. Sc. Sec. Aph. LIV.

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