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Asche, Austin --- "Epitaph: The rule in Shelley's case" [2001] AltLawJl 56; (2001) 26(3) Alternative Law Journal 147

The Rule In Shelley’s Case

Section 28 of the Northern Territory Law of Property Act 2000, which commenced on 1 December 2000, abolishes the Rule in Shelley’s Case. To honour the memory of this Rule, the HON AUSTIN ASCHE AC QC organised a wake at which Justice Angel gave a funeral oration. The Hon Austin Asche wrote the following epitaph.

The most celebrated case that has ever occurred

respecting the law of real property in England

Campbell, Lives of the Chief Justices,

Vol. 1, p.289 of the John Murray Edition

The controversy between Shelleyites and Anti-Shelleyites … continued to rage with increased violence for years. Many pamphlets were written for and against the rule

Campbell, Lives of the Chief Justices,

Vol. 3, p.309

During the 18th and 19th centuries doubts began to be cast on it and limitations suggested. The result was that the rule during these centuries gave rise to an enormous mass of litigation.

H.E.L. Holdsworth, Vol. 3, p.109

How did the rule originate?

The report is in [1579] EngR 149; 1579 1 Co. Rep. 93b76 ER 206. and recounts how all the great judges in England were called together:

After the said case had been openly and at large argued at three several days by the counsel of each side in the King’s Bench, the Queen hearing of it (for such was the rareness and difficulty of the case, being of importance, that it was generally known) of her gracious disposition, to prevent long, tedious and chargeable suits between parties so near in blood which would be the ruin of both, being gentlemen of good and ancient family, directed her gracious letters to Sir Thomas Bromley, Knt. Lord Chancellor of England, who was of great and profound knowledge and judgement in the law, thereby requiring him to assemble all the justices of England before him, and upon conference had between themselves touching the said questions, to give their resolutions and judgements thereof, and thereupon the Lord Chancellor in Easter term in the 23rd year of her reign, called before him at his house called Yorkhouse, Sir Christopher Wray Knt. Lord Chief Justice of England, and all his companions, Justices of the Queens Bench, Sir James Dyer Knt. Lord Chief Justice of the Court of Common Pleas, and all his companions, Justices of the same court, and Sir Roger Manwood Knt. Lord Chief Baron of the Exchequer and the Barons of the Exchequer, before whom the questions aforesaid were moved and shortly argued … but the said questions were not resolved at that time, the said justices desiring time to consider of the questions. And eight or nine days after in the said term, all the said justices and barons met together in Sergeants-Inn, in Fleet Street, for the resolution of the said case, and there the case was again shortly argued by them, after which arguments the justices at that time did confer among themselves, and took further time to consider of the said questions in the next vacation, till the beginning of Trinity Term then next following; and accordingly in the beginning of the Trinity Term, after great study and consideration of the said record of the special verdict, all the said justices and barons met again in Sergeants-Inn in Fleet Street, at which time upon conference among themselves, all the Justices of England, the Lord Chief Baron and the Barons of the Exchequer, except one of the puisne justices of the Court of Common Pleas agreed.

What is the rule?

Here the rule is stated in the original form in 1 Co. Rep. 106b:

That where in any instrument an estate for life is given to the ancestor, and afterwards by the same instrument, the inheritance is limited either mediately, or immediately, to his heirs or heirs of his body, as a class to take in succession as heirs to him, the word ‘heirs’ is a word of limitation and not of purchase — and the ancestor takes the whole estate.

Confusing? Well, yes, because we are not 19th century equity lawyers.

But it might help a little if we remember that the word ‘purchase’ does not here have the meaning we would endeavour to give it today. Here is what Cheshire says about it in ‘Modern Real Property’, 6th edition 1949, p.342:

Words of purchase (perquisitio) point out by name or description the person who is to acquire (perquisit) an interest in land; words of limitation indicate the size of the interest given by some instrument. A ‘purchaser’ in this technical sense does not denote a person who buys land, but one to whom land is expressly transferred by act of parties, as for instance by conveyance on sale, by gift, or by will. If land is given ‘to A and his heirs’ A is a purchaser since he is the designated transferee but the words ‘and his heirs’ are words of limitation. They merely indicate the quantum of interest that A is to take and give the heirs nothing by direct gift.

There you are. That should make it perfectly clear.

Why did the rule remain in the Northern Territory?

The rule remained in the Northern Territory partly as a historical accident and partly as a sinister plot by academics at Northern Territory University to retain at least one subject that only they could understand!

The Rule was imported into the colonies as part of the law of England ‘reasonably applicable to their condition’. Though some would dispute its applicability there wasn’t any other property law about at the time. In fact the English were the first to get rid of it (in 1925) and the Australian States followed suit at varying times over the next decade or so.

In 1911, when South Australia flogged us off to the Commonwealth, that State still retained the old property law, including Shelley’s case. So our property law remained what it was in 1911. South Australia changed its law later but by then, of course, had no jurisdiction over us. The Commonwealth didn’t feel inclined to bother with the matter while we remained under their aegis, and there were more urgent things to attend to when we got self-government (insofar as we did get self-government). After all, the relevance of Shelley’s case to any NT property transaction was precisely nil, and many felt a sentimental affection for a harmless, picturesque, old ruin, which by now only the NT possessed. There was some talk of preserving it as a tourist attraction and SPAR (the Society for the Preservation of Ancient Relics) felt that it could be housed in the Museum.

However, sterner views prevailed and a jury presided over by Mildren J in his capacity as President of the Law Reform Committee found the Rule guilty of incomprehensibility, senility and dry rot. The death sentence was pronounced and carried out in December 2000 by the new improved Law of Property Act.

Hinc illae lacrimae.

The Hon. Austin Asche AC QC is a former Administrator of the NT, a former Supreme Court and Family Court judge, a former Chief Justice of the NT and is currently President of the NT Law Reform Committee.

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