amount equivalent to one moiety of the total cost of the improvement, so that an aggregate improvement rate, which, if capitalized, would represent that moiety, might fairly be imposed upon the lands and buildings or some of the lands and buildings within the specified area. For observe the particular form of the proposal. The increase in the value of a particular property within the area in question was not to be taken as a measure of the actual amount of rate which the property was to bear. That would have been equitable enough. But it was only to be taken as a measure of the proportionate part which the property was to bear, relatively to other properties, of an aggregate rate of an arbitrary and unchallengeable amount. The persons interested in any property proposed to be charged with this improvement rate were to be permitted to call in question the proportionate amount to which their particular property was to be liable in respect of the whole rate, either on the ground that the property ought not to be subjected to the rate at all, or on the ground that its proportion of the rate ought to be diminished by the liability to the rate being extended to some other properties not proposed to be rated, or by a reduction of the amount at which the property was set down as having been increased in value by the improvement. The liberty to show that other properties, though included in liability to the rate, were insufficiently rated, having regard to the actual extent to which they were improved, would appear to have been omitted from some oversight, since it is on all fours with the grounds of objection actually conceded to the persons who were destined to bear the rate. But they were designedly not to be permitted to call in question the total amount of the aggregate improvement rate. The idea of the London County Council was in fact the same as if Parliament, when it authorized the construction of a railway, instead of allowing each owner of adjacent properties which were injuriously affected by the construction to prove the extent of the damage sustained by his property and to recover that amount from the railway company, were to fix in the first instance the aggregate amount to be paid by the company to the owners of all adjacent properties injuriously affected, and were only to leave it to the several owners to prove as between themselves the relative extent to which their respective properties were injured, with a view to settling what proportionate amount of the available fund each owner was entitled to receive. The injustice of such an arrangement is apparent on the face of it; independently of the endless cost and trouble which it would entail upon each owner in proving that the amount of injury inflicted on other properties was over-estimated, as well as that the effect on his own was insufficiently estimated. No less intrinsically unjust is the scheme of the London County Council, and no less oppressive would be the labour and expense which it would impose on the landowners concerned, in showing not only that the estimate of the improvement of their own property was exaggerated, but also that the improvement of other properties was under-estimated. It is also to be observed that a single arbitrator, appointed ad hoc by a strong political partisan, as the Home Secretary might not improbably be, at the request of the London County Council, would be a very unsatisfactory tribunal for assessing the amount of the rate to be borne by the persons upon whom it was sought to be imposed. Our review of the whole subject has, I think, established the conclusion which I suggested at the outset of the inquiry-namely, that betterment, or the liability of property improved by public works to contribute in respect of that improvement to the cost of the works, is a sound legal principle, but that the extent and manner of its recognition and application ought to be very strictly defined. In accordance with this conclusion we shall approve as just and equitable the enactments of 1666, 1875, 1879 and 1882, to which reference has been made. We shall also approve the introduction of the principle into the Strand Improvement Scheme of the London County Council. If property is injuriously affected by diminishing the modes of access to it, there can be no question that it is ameliorated by an improvement in those modes of access. But we shall not approve the method in which the London County Council have proposed to carry out the principle. We shall insist that in its application the following conditions should be recognized and observed :- 1. Just as compensation cannot be obtained by aggrieved parties in all cases of damage caused by the execution of public works, so a betterment tax cannot be imposed on all parties who happen to derive some special benefit from the works. The principle ought only to be applied where property is by the operation clearly increased in value intrinsically, and not merely in reference to any particular use to which it may from time to time be put. 2. Just as, in the case of worsement or the injuriously affecting of property, the owner is allowed by the Lands Clauses Act, 1845 to select whether the tribunal to determine the compensation shall be arbitrators or a jury; so, and much more, in reference to betterment, the party who is to be taxed ought to be permitted to select the tribunal by whom the tax upon him shall be assessed. A recognition of the right of the party who is to be taxed to be satisfied as to the competency and impartiality of the tribunal is essential to the equitable working out of the principle. 3. If the owners of the ameliorated properties are offered no alternative but to submit to the betterment tax, each case ought to be investigated and decided on its own merits; and the tax on each property ought not to be of a greater amount than, when capitalized, will represent the actual increase in value of the property caused by the execution of the works. 4. The assessment of any betterment tax on properties actually or conjecturally improved by the execution of public works otherwise than in accordance with the three conditions just laid down can only be justified, if, as an alternative to bearing the tax, the owners are given the option of requiring the body which is executing the works to purchase the properties at the values at which they stood previously to the commencement of the works. It would be more strictly just and equitable that this option should be given in all cases, even where the tax proposed to be levied strictly represents the actual amount by which the property is increased in value. 5. The betterment tax, whether it is imposed in the form of a perpetual or of a terminable rentcharge, ought to be capable of being redeemed by any person interested in the property, either before it is begun to be levied, or at any time afterwards during its continuance. PHILIP VERNON SMITH. IN BREACH OF PROMISE OF MARRIAGE. N the following pages it is not my intention to expatiate on the details of a department of law so fully settled as this, but rather to trace how this action originated both in England and Scotland, to indicate the position in which it stands at present, and to suggest on what broad principles practical reforms may be made. In the very remarkable extension of actions on the case, and especially of assumpsit, by which so much was brought within the cognizance of the common law, it was held as early as the reign of Charles the First that if A in consideration that B promised him to take him to be her husband, promises to take B to be his wife infra breve tempus after, and after A marries another woman, B may have an action upon the case against A upon this promise, for this is a good consideration1. Considerable objection, however, was taken on the ground that the consideration was a purely spiritual one and that the matter was not cognizable by common law, and a writ of error was brought, but the judgment was confirmed by the Court of King's Bench. In 1651 a similar decision was given in Baker v. Smith2, and nineteen years later the same principle was acted upon in Mills v. Middleton 3, but the most exhaustive discussion seems to have taken place in 1672 when the case of Mary Holcroft v. Dickenson came before the Court of Common Pleas. The allegation of the plaintiff was that the defendant by the breach of his promise had 'hindered her preferment to her damage of 100 pounds.' Each of the three judges who formed the court considered the relative jurisdictions of the courts of common law and the ecclesiastical courts at great length, and finally (Chief Justice Vaughan dissenting) decided that this action was maintainable at common law. 4 In 1698 the action passed into a further stage of development in Harrison v. Cage et uxor 5, in which a man brought a similar action against a lady who had pledged her vows to him and afterwards gone and married another, that fortunate man being joined as defendant for reasons sufficiently obvious before the days of Married Women's Property Acts. It does not appear that any technical objection was taken at the trial, and a prosaic but Stretch v. Parker, Mich. 12 Car. Rot. 21; Ro. Abr. 22. 5 Carthew 467; 5 Mod. 411; 1 Salk. 24. + Cart. 233. sympathetic jury found 'a verdict for the plaintiff and £400 damages, the woman being worth £3000 when the plaintiff courted her, and after the death of her brother worth double that sum' (!) and Chief Baron Ward gave judgment accordingly. After an unsuccessful application for a new trial on the ground of excessive damages, a motion was brought in the King's Bench in arrest of judgment, on the ground that no action lay. In support of the motion it was argued that it is not reasonable that a young woman should be caught into a promise' and voidability from uncertainty as to time was suggested, but the points most relied upon appear to have been that there was no case in which the writ causa matrimoniae praelocuti had been held good against a woman, and that, as in the eye of the law a man was not advanced by marriage, the woman's promise was of no value in law, and thus the contract must fail for lack of consideration. But the judges held otherwise. Rokeby J. pointed out that a man had an action for slander per quod matrimonium amisit, which was hardly consistent with the defendant's ungallant contention as to woman's worth; and Holt C.J. and Turton J. took the simple ground that the promises were mutual, so that if an action lay on the one promise it would lie on the other also. The reasoning of the Chief Justice, however, is not quite so clear when he goes on to say, 'In the ecclesiastical court he [the plaintiff] might have compelled a performance of this promise; but here indeed she has disabled herself, for she has married another,' for the canon law decreed such specific performance only where the words had amounted to matrimonium per verbis de praesenti, which, by the canon law, of itself constituted a marriage, all that was enforced being the additional formality of solemnization in face of the Church. In such case, even if in the meantime one of the parties had actually solemnized a marriage with some one else, the ecclesiastical courts (at the time of their full power) would have treated the latter as void and would have enforced the formalities of the original contract1. If, however, that original contract had not amounted to matrimonium per verbis de praesenti they would not have proceeded beyond an admonition. Perhaps by this time the activity of the ecclesiastical courts had diminished. Perhaps, even apart from any decree of specific performance, the fact that such a substantial thing as an ecclesiastical admonition then was lay behind it, might be sufficient, even at common law, to redeem the promise from the forlorn condition of a nudum pactum. In 17042 Chief Justice Holt further ruled that this action would 1 As in Bunting v. Lepingwell, 4 Co. 355. Phillimore's Ecclesiastical Law, passim. 2 Hutton v. Mansell, 6 Mod. 172. |