the terms of the contract of alienation, attach undue importance to the circumstance, often accidental', of one contract being prior to the other, and render it necessary in each case to examine the circumstances surrounding the contract of alienation in order to decide whether or no the law will impute to the parties an additional contract which they did not make in fact, and which in many cases they did not intend to make, and would not have made if their attention had been called to the particular point 2. Lord Westbury perceived that the contract of alienation (lex traditionis) ought on sound legal principles to govern the rights of the parties subsequent thereto. When the owner of two tenements sells and conveys one to a purchaser for an absolute estate therein, he puts an end by contract to the relation which he had himself created between the tenement sold and the adjoining tenement, and discharges the tenement so sold from any burden imposed upon it during his joint occupation, and the condition of such tenement is thenceforward determined by the contract of alienation, and not by the previous user of the vendor during such joint ownership 3. The rules of English law are too well settled at this date, but it is suggested that it would have been well if the Courts had adopted the dictum of Mellish C.J., that 'the order of the two contracts of alienation is immaterial,' and had applied to all cases the rule of Roman law, that the quasieasements will not be transformed into actual easements by the fact of alienation, but that their transformation must be an express term of the contract of alienation.

ERNEST C. C. FIRTH.

The facts in Pyer v. Carter, 1857, 1 H. & M. 916, Wheeldon v. Burrows, 1879, L. R. 12 Ch. D. 31, and Beddington v. Atlee, 1887, L. R. 35 Ch. D. 317, establish that the priority of one contract is often accidental: e. g. two tenements are offered for sale at the same auction; one is knocked down there and then to a purchaser; the other is disposed of by private treaty a month afterwards: according to the rules of English law considerable consequences may follow from the accident that the latter was not disposed of at the auction.

2 Birmingham, Dudley and District Banking Company v. Ross, 1888, L. R. 38 Ch. D. 295. 3 Suffield v. Brown, 1864, 4 De G. J. & S. 185.

MAINTENANCE AND EDUCATION.

HE Courts have been asked from time to time, in cases of

construction, to define the extent of a provision in terms of a yearly sum or of the proceeds of a fund, expressed to be made 'for the maintenance and education' of a person or group of persons, in the absence of indication, other than that afforded by the words themselves, of the intended duration of the benefit. The last judicial utterance that I can find in a case of this kind is that of Hall V.-C. in Wilkins v. Jodrell, 13 Ch. D. 564, decided in 1879. It is remarkable as expressing, (apart from authority,) a dissent from the opinion of Wood V.-C. in Gardner v. Barber, 18 Jurist 508 (1854), on the limitation of time of enjoyment which these words prima facie indicate. It is also remarkable as containing a criticism of the principal case on which Wood V.-C. relied, which made that case, in the opinion of Hall V.-C., irrelevant alike to Gardner v. Barber and Wilkins v. Jodrell. Shortly stated, in Vice-Chancellor Wood's opinion, such a provision as above mentioned for the maintenance and education of A ought to be considered as limited to the period of A's minority, unless there is something in the context to extend it; in Vice-Chancellor Hall's opinion, such a provision should continue during the life of A, unless there is something in the context to confine it. Wood V.-C. considered his opinion to be supported by the authority of Knapp v. Noyes, Ambler 661, decided by Lord Chancellor Camden in 1768; Hall V.-C., while not impugning the authority or correctness of that case, was persuaded to take a view of it which enabled him to pass it by.

It is somewhat strange that the decision of Hall V.-C. should have excited so little comment, as the point is one of considerable interest and importance, and seems, from an inspection of the reports, to have arisen with some frequency. I venture to think that the point has for more than a century been covered by authority, that Wood V.-C., whose carefully considered judgment in Gardner v. Barber was never challenged until 1877, when Malins V.-C. in Frewen v. Hamilton, 47 L. J. (Ch.) 391, (presently to be noticed,) disregarded it in a rather summary fashion, was right, and that Hall V.-C. was not free to give effect to his own view. The fact that the decision in Wilkins v. Jodrell, and the consequences involved in that decision, have been noticed in various professional books in general use

(e. g. Jarman, Wills, 5th edition, i. 371, note (z); Lewin, Trusts, 9th edition, 146; Seton, Decrees, 5th edition, 1376; Simpson, Infants, 2nd edition, 315) without adverse comment, and in one case at least (Jarman, loc. cit.) with apparent approval, is my excuse for venturing on this criticism, which, if well founded, may be of some use when the point again arises. As it does not appear that Hall V.-C. would have been prepared to disregard or overrule the decision of Lord Camden if he had been convinced of its relevance, it is convenient to begin by examining that case, in which the Lord Chancellor is reported to have said that 'maintenance and education are confined to minority.' The examination will, I think, show that Hall V.-C. was wrongly advised when he professed his agreement with the argument of counsel that when Lord Camden used these words he was merely referring to the terms of the will then before him, being such that in that particular case they were so confined, and was not laying down any general rule that maintenance and education in such a clause or provision would ordinarily and per se determine with minority' (13 Ch. D. 571). And it seems to me not unimportant, as Wood V.-C., while relying on the words quoted from Lord Camden's judgment, spoke of them as only a dictum,' to examine the decision with some care in order that it may appear that these words were really something more than a dictum. It will after this examination be convenient to notice the chain of later cases, of which Wilkins v. Jodrell appears to be the last.

Knapp v. Noyes, Amb. 661, is a somewhat remarkable case. The judgment only is reported; it is short, and runs as follows:

'Noyes, having five children at the date of his will, gave them, by name, 1,500 each, to be paid to his daughters respectively at the time of their several marriages with the consent of his executrix and executor, or the survivor; and if any of them should marry without such consent, then he gave her or them so marrying respectively £500 only; and he gave the icoo to such of his daughters as and when they should marry with such consent, in equal proportions.

Mary, one of the daughters, having attained twenty-one, died unmarried. Q. Whether the portion survived? or, in other words, whether the time of payment is confined merely to marriage? If I should determine for the plaintiff it will be with reluctance. It is very unnatural for a parent to impose a consent to marriage during his daughter's whole life. To consider it upon the will, which I shall construe with liberality. These portions clearly vested at the death of the testator; and if they had not been devised over, I should think that in case any of the daughters had died before the time of payment, the portion would have gone to her representative.

'But still the question is, Whether marriage is the sole time of payment?

A material observation arises on a clause in the will, by which the testator appointed the same persons who are his executors to be guardians of his daughters during their minority.

It is a fair construction to say that he appoints the guardians merely with a view to their consent, and the same as if he had inserted that clause in the clause of consent.

'The clause of maintenance and education is also material. "Till portions become payable" must be understood, "till twenty-one, or marriage with consent."

Maintenance and education are confined to minority; and though there may have been a case where under the word education the provision has been extended after twenty-one, yet that must have been a very special case, and contrary to the natural sense of the words. If this construction is right, it puts an end to the question; because the condition of marriage with consent must mean at an earlier time than twenty-one.'

Now it is to be observed that the decision ultimately arrived at by the Lord Chancellor is based on the conclusions extracted from certain indications in the will, independent of one another, but all, in the Lord Chancellor's opinion, pointing in the same direction. He argues on the antecedent unlikelihood of a testator intending to fetter his daughter's liberty of marriage during her whole life, and on the circumstance of the persons whose consent is expressed to be required being appointed to act as guardians during the daughter's minority, as though this exhibited the testator's intention to reduce the required consent to an incident of guardianship. He then relies on a further indication, which is the important point for us to notice. There was a 'maintenance and education' clause in the will, and seemingly the allowance for maintenance and education was to be made 'till portions become payable 1.' It is plain that the allowance for maintenance and education was not in terms expressed to be limited to minority, otherwise the last two paragraphs of the judgment would be pointless, as the Lord Chancellor would only have had to refer to the time-limit expressed in the will, instead of arriving at the same result by a roundabout method of inference. The argument appears to be this: The testator directed an allowance for maintenance and education until the portions should become payable-maintenance and education are words referable to minority in the absence of special circumstances therefore portions must have been payable at majority, if marriage did not take place earlier.'

We are not in the least concerned with the correctness of this

See the account of Knapp v. Noyes given by Wood V.-C. in his judgment in Gardner v. Barber, 18 Jur. 509.

reasoning, or with the reasoning on the other matters on which the Lord Chancellor relies in his judgment. Assuming the report to be in all points accurate-and perhaps this is a large assumption in the case of a precedent reported by Ambler-it may strike us with some surprise that the Lord Chancellor did not refer to Atkins v. Hiccocks, 1 Atk. 500, decided by Lord Hardwicke in 1737, a case which seems very much in point1. It also seems allowable to think that the words 'till portions become payable' displace under the circumstances the natural inference to be drawn (in the Lord Chancellor's opinion) from the use of the words 'maintenance and education.' But it seems clear that Lord Camden did not mean to say that from the particular will before him he collected a special intention of the testator that maintenance and education should only continue during minority. The words used, and the context in which they occur, require us to believe that in saying 'maintenance and education are confined to minority,' the Lord Chancellor was enunciating what he believed to be a known rule of interpretation, and applying it to a certain sentence in the will before him, extracting from this process a conclusion which, added to and agreeing with certain other conclusions extracted from other expressions in the will, justified him, (in his opinion,) in deciding that the portion of the deceased daughter of the testator survived to her representative. When we notice that the Lord Chancellor, as appears from the last paragraph of his judgment, regarded this point about the maintenance and education clause as important, if not decisive, it is difficult to regard the words 'maintenance and education are confined to minority' as a mere dictum2.

At the date of this judgment, Lord Camden, who is described by Lord Campbell as a profound jurist and an enlightened statesman,' had had a much longer experience as a common law judge than as an equity judge. See his life in Campbell's Lives of the Chancellors, vol. v.

2 So clear did it seem to me after considering the judgment that Lord Camden intended to enunciate a general rule and not to deliver a particular interpretation, that I carefully examined all the reports of Wilkins v. Jodrell that I could find, with a view of learning, if possible, what was the nature of the argument by which counsel prevailed on Hall V.-C. to take the view of Knapp v. Noyes which he did. The case is reported in 13 Ch. D. 564, 49 L. J. (Ch.) 26, 41 L. T. 649, 28 W. R. 224, but none of these reports, either in the arguments or the judgment, throw any light upon the point. It is unlikely that the report in Ambler would be corrected or supplemented by a reference to the record without any reference to the fact in the judgment. In the report in Ambler, immediately under the title of the case, is the note [no entry], but as this is followed by a reference to a footnote which manifestly refers to the case immediately preceding, it is difficult to say to which case the reporter refers. I am inclined to suspect that counsel and judge in Wilkins v. Jodrell were misled by the headnote of Knapp v. Noyes, which runs as follows: Testator bequeathed to his daughters £1,500 each, to be paid them respectively at the time of their marriage with consent of his executrix or executor who are made guardians during their minority with a clause for maintenance and education till twenty-one. Held, a child attaining twenty-one her legacy was vested; the condition is to be understood as confined to marriage under twenty-one.' For the reasons already given, I think the provision for maintenance and education was expressed to continue 'till portions become payable,' and that, on the strength of