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contraband of war. This, however, was not conceded, and the his surrender. There, however, his jurisdiction ends, and the United States and Spain are alike at liberty to put in force the gaoler can only act in obedience to such a warrant or in ancient laws of maritime warfare, and to search neutral ships obedience to a writ of habeas corpus. A writ is, of course, for enemy's goods as well as to authorize the employment of frequently granted in order to test the legality of the surrender, privateers. It is announced that the United States will declare but in this case a writ was granted ad respondendum, ordering against privateering, and, in the interests of neutral commerce the governor of Holloway Prison to take his prisoner before the it is to be hoped that they will waive the right of search as well, magistrate to answer the further charges. It is said that this except for contraband goods. It would be difficult then for is the first occasion on which this writ has been issued under Spain not to follow their example.

such circumstances.

ASSUMING THAT the belligerents will claim to exercise the right JOHN KENsIt can approve of the means he took for gaining

Few of the persons who sympathize with the objects of Mr. of searching neutral vessels only for the purpose of finding and those objects. He was convicted and fined under section 2 of seizing goods which are contraband of war, there is still room for great doubt what articles fall within this category. GROTIUS 23 & 24 Vict. c. 32, which makes any person liable to a penalty divided goods into three classes--the first including things which who is "guilty of riotous, violent, or indecent behaviour" in a are useful only for the purposes of war; the second, those

church, whether during the celebration of Divine service or at whch are not useful for such purposes ; and the third, those any other time." The witnesses for the prosecution were crosswhich are capable of indiscriminato use in war and in peace. examined with the view of showing that the service which was As to the first two classes there is no uncertainty. Goods in the proceeding at the time of the disturbance was illegal. An first are clearly contraband, those in the second as clearly attempt was made to stop this line of cross-examination, but not. Goods in the third class aro, according to the same

the magistrate very properly held that if the prosecution authority, contraband or not according to the existing cir- charged the defendant (as they did) with misconduct during cumstances of the war. It is obvious that, on this principle, show that the service was not " Divine service” within the

the celebration of Divine service, the defendant was entitled to many classes of goods which are prima facie of a peaceful nature may become contraband if they are intended to be meaning of the Act. It was admitted by the witnesses for the used in a manner which will prolong the war.

Thus, although prosecution that the order of the service which was disturbed provisions generally are not contraband, yet it was laid down by tained in another book. Now, the Act of Uniformity (1 Eliz. c.

could not be found in the Book of Common Prayer, but was conLord STOWELL in The Jonge Margaretha (1 C. Rob. 192) that they 2,8.4) provides that the form of worship contained in the Book of may become so under circumstances arising out of the peculiar Common Prayer shall be used in all churches, and that no other situation of the war, or the condition of the parties engaged in form shall be used, and it makes a clergyman using other it. But an attempt in 1793 by the English Government to forms liable to heavy penalties. The magistrate, therefore, extend this principle by stopping all vessels laden with corn, flour, or meal bound to any French port was followed by claims seems to have had ample justification in law for refusing to for indemnity on the part of American owners which had to be hold that Mr. Kensin was guilty of misconduct during the satisfied. Without laying any such sweeping embargo upon pro

celebration of Divine service. The statuto, however, it will be visions or other goods destined for the maintenance of a belligerent seen, provides that a disturber may be punished precisely in the nation, it is sufficient to use the test whether the articles are

same way whether the disturbance took place during Divine actually destined for military purposes, and provisions intended service "or at any other time.” The point therefore was of no for the use of the army would be so included, but not otherwise.avail in saving the defendant from the maximum penalty of £5, For practical purposes the question is of most importance,

which he was condemned to pay. perhaps, with respect to coal. In the Franco-German war the British Government, against the remonstrance of Germany, permitted the export of coal to France, though not to the French COMPULSORY SALES AND COVENANTS RUNNING fleet in the North Sea—and this was right. Coal is clearly a com

WITH THE REVERSION. modity which will be contraband or not according to circum- The immense increase in our population during the past fifty or stances. If destined for the use of a belligerent fileet, it is a sixty years and a rapid growth in commercial prosperity, while powerful engine of war and is liable to confiscation.

favouring the nation as a whole, have in some few instances operated as a distinct hardship. Perhaps no class has been hit

harder than landowners and their lessees. After having enjoyed A MAN named BACH, of German nationality, was brought years of undisturbed possession, they suddenly find themselves before the chief magistrate at Bow-street for extradition a few turned out of their belongings by some public company or body days ago under unusual circumstances. A fortnight previously on the excuse that a railway must be run through their he had been committed for extradition on certain charges of property, or a site be found for educational purposes. One of the larceny and other offences, said to have been committed in earlier cases in point is that of Baily v. De Crespigny (L. R. 4 Germany; but he had not yet been handed over to the German Q. B. 180). The facts were shortly as follows : A. leased some police, as the Extradition Act of 1870 forbids the surrender of a land to B. for a term of eighty-nine years and retained the fugitive till the expiration of fifteen days from the date of his adjoining land, convonanting that neither he nor his assigns being committed to prison to await bis surrender. During this would during the term erect any but ornamental buildings on a time he has a right to apply for a writ of habeas corpus, and so to paddock fronting the premises demised to B. A railway test the legality of his surrender, and it is the duty of the magis- company took the paddock under compulsory powers and built trate to inform him of this right. The Act further provides that a station upon it. It was held that A. need not observe his a fugitive shall not be surrendered to a foreign State unless the covenant. “The Legislature,” said HANNEN, J., in delivering law of that State provides that he shall not be tried for any the judgment of the Court of Queen's Bench, "by compelling offence committed before his extradition other than the crime on him to part with his land to a railway company whom he could proof of which his surrender was founded. In the present case not bind by any stipulation as he could an assignee chosen by it appears that, after Bach had been committed, the German himself, has created a new kind of assign such as was not in the authorities discovered that he had committed a number of other contemplation of the parties when the contract was entered offences, for which they desired to be able to try him in Germany. into." The lessor, indeed, was discharged on the principle, In order to do so, however, they were obliged to have him “ lex non cogit ad impossibilia.General words do not bind a committed for surrender on these charges as well as on covenantor to meet a contingency which could not be reasonably those first brought against him, and the question arose supposed to be in the contemplation of the parties at the time how the accused was to be brought again before the magis- when the covenant was made, and of such a nature was the trate. A Secretary of State has power, at the end of the fifteen compulsory assignment to the railway company. It was con. days, to issue his warrant to the gaoler ordering him to hand tended for the lessee that in any event the lessor was only over the fugitive to the officers of the State which has asked for relieved from his liability in respect of acts which the company

was required by the Act of Parliament to do, and not in respect J., in Anderson v. Manchester, Sheffield, and Lincolnshire Railway of those which it was merely empowered to do. But this limita- Co. (ante, p. 396) to the case of a covenant for quiet enjoyment. tion was rejected. “The covenantor," continued HANNEN, J., The facts, shortly stated, were as follows: A. leased premises to "' is equally disabled from preventing the railway company from B. for twenty-one years with a covenant for quiet enjoyment at doing those things which it is empowered to do, as those which it the hands of A. and his assigns. The lease was effected in 1894. is required to do; why then should there be a difference in the By the Manchester; Sheffield, and Lincoloshire Railway Act, liability, of the covenantor with respect to the one and the 1893, the defendant company were authorized to make a certain other ?"

railway, and for that purpose were empowered to enter upon, use, It was further held that the covenantor could not be assumed and take the property demised by the lease; but that property to have received for his land an additional sum on account of its did not form any part of the actual site of the railway as conbeing sold free from the restrictive covenant, and hence that the structed. However the company acquired by agreement the lessee could not obtain compensation by calling for such sum to reversionary interest of A. (the plaintiff's lessor) in the demised be handed over to him. The covenantor, indeed, was absolutely premises, and by an arrangement made in October, 1895, A. freed from liability, and the Legislature having omitted to give assigned the property to the company subject to the plaintiff B.'s the covenantee à direct claim against the company, he was lease. The company, by their works on adjoining property, comwithout remedy. The solution of the case," HANNEN, J., mitted what would have been a clear breach of the covenant for concluded, “ appears to be that the plaintiff is one of a numerous quiet enjoyment if such had still existed. B. claimed damages for class of persons injured by the construction of a railway for this on the ground that the company, by taking an assignment whom the Legislature has not provided compensation.” And he of the reversion, had rendered itself' liable under the covenant illustrated this by reference to the nature of the special damage for quiet enjoyment, and refused to pay rent. The company claimed in the pleading8. The amenity and comfort of the brought a second action against B. for rent due under his lease, demised land had, it was alleged, been diminished by reason of B. setting up the covenant for quiet enjoyment as a defence, the prospect therefrom being interfered with, and by being and counter-claiming for damages for its breach. With the trifling overlooked by the windows of the station; and these were heads exception of part of the costs of the first action, the company of damage for which railway companies were not in ordinary were completely successful, BYRNE, J., deciding that they were circumstances bound to give compensation, although the lessor, not liable on the covenant, and consequently were exempt from had he doce similar acts, would have been liable on his cove- damages and entitled to rent. The principle applicable to the covenant. It is, of course, otherwise where the works of the case was similar to that in Baily v. Crespigny (supra), though railway company cause an interference with rights which the the circumstances were distinguishable from those in that and law recognizes as attached to the enjoyment of property, and other previous cases upon the two-fold ground, (1) that the sale then the persons interested can obtain compensation from the was merely of the reversion subject to the plaintiff's lease, and company on the ground that the land has been injuriously (2) that the property was not actually used or required as the affected (Ricket v. Metropoli'an Railway Co., L. R. 2 H. L. 175; (site of the railway, for the extension of which the Act had been Clark v. School Board for London, L. R. 9 Ch. 120).

passed. The acts complained of took place, however, upon In the case last mentioned the school board had purchased property acquired for the purpose of the railway, and the result land over over which the plaintiff had a right to light, and pro- was very much the same as though the railway company had ceeded to build schools which interfered with the light. It was been violating a restriction imposed for the benefit of the held that under the Elementary Education Act, 1870, which demised premises upon the use of the adjoining land. incorporated the purchase clauses of the Lands Clauses Act, There was, however, a substantial point of distinction, and this 1845, the school board were entitled to do this, and that the was the matter to which BYRNE, J., chiefly directed his atten. remedy of the plaintiff was to claim compensation. The inten- tion. The lease of the property had been made subsequently tion of the Legislature, said Lord SELBORNE, L.C., was to give to the passing of the railway company's Act, and since the to the school board the land required by them absolutely free company were by the Act authorized to take the demised from any jus tertii which would control their dominion over property, the possibility of the company being an assign would it for the purpose of the duty which they have to discharge. naturally be present to the lessor when he covenanted on All outstanding rights, therefore, were extinguished in favour behalf of himself and his assigns for quiet enjoyment. But it of the school board, though, as just stated, the extinguishment was held that this circumstance did not extend the proper effect was a matter for compensation.

of the covenant. “I think," said BYRNE, J., “that the true In Kirby v. School Board for Harrogate (1896, 1 Ch. 437) the intent and meaning of the covenant is that the covenantor will doctrine that a public body purchases free from restrictive be answerable for his own acts and for the acts of his assignees, covenants was applied to the case of a voluntary sale. "It but not that he will be answerable for the acts of the railway seems to me," said NORTH, J., "that the rights of a school company in the exercise of its statutory powers; the company board as against a person who can be compelled to sell to them, not being in the true sense a voluntary assignee at all, although but who is willing to do so, are not less than they would have he conveys to the company and it is not put to the been if he had been unwilling to sell but had been compelled exercise of its compulsory power.And this being the to do so.”; in other words all voluntary assignments to public liability of the lessor, it was further held that no further bodies for public purposes carry exemption from covenants liability was imposed upon the railway company by the assignentered into by the assignor, provided that the public body ment. “I think that à railway company taking lands under could have compelled assignment on refusal to enter into an statutory powers, and constructing works within such powers ordinary agreement. The decision of North, J., in that case without negligence, is entitled to take the interest of any person was affirmed by the Court of Appeal, and it was at the same having an interest in land without incurring liability in respect time held that though a restrictive covenant was put an end to of any existing covenant entered into by the owner whose by the voluntary sale, yet the covenantee could recover com interest the company acquires, so far as the enforcement of such pensation under section 68 of the Lands Clauses Act, if he could covenant would impose a burden upon the company in derogaprove actual damage, and thus show that his land had been tion of its statutory rights and obligations.". But as in the injuriously affected.

“It would be misreading the Lands previous cases, although the person entitled to the benefit of the Clauses Act,” said LINDLEY, L.J., " if we were to hold that a covenant loses the right to enforce it, he can in ordinary casos person injuriously affected by the construction of the works recover compensation. The result is that public bodies acquircould not have the benefit of section 68 if the company had ing, either compulsorily or by agreement, land or interests in managed to acquire the land by agreement rather than by the land which they are empowered to acquire, take the property exercise of their compulsory powers. I have not the slightest acquired free from the outstanding rights of third parties, and doubt myself that section 68 properly applies to all cases of the third parties are left to such satisfaction as they may be able purchase by railway companies under their powers, and to all to obtain under section 68 of the Lands Clausos Act. cases of purchase by school boards under the powers conferred upon them by this Act of 1870." The doctrino in question has recently been applied by BYRNE, hall, Lincoln's-inn, on Tuesday afternoon next, at 4 15.

The annual general meeting of the Bar will be held in the old dining.



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MR. WARR'S BILL FOR EXEMPTING GRADUATESQ. B. D. 454), and Re Agar-Ellis (24 Ch. D. 317). The interest of

by the cases of Rex. v. De Manneville (õ East 221), Reg. v. Nash (10 FROM THE FINAL EXAMINATION.

the first case is now rather historical than practical. It affirmed WE recently stated the provisions of this Bill, and pointed out that, under very strong circumstances the common law right of a father as it did not relax the present statutory conditions as to service under to the custody of his legitimate children, and it was till recent times articles of clerkship, the result might be to render the time of service doubtful whether the court had any jurisdiction at all to remove a more fruitful by enabling students to get through the theoretical child from the actual custody of the father (see Re Hakewill, 12 C. B. work of examinations before practical work is taken up. That, we 230), though there a wider discretion where the father understand, is not the view taken by many university men who have was applying to get the custody of the child.

In Reg. v. passed both the Law Schools and the Solicitors' Final Examination, Nash it was held by the Court of Appeal that the custody and we have received the following communication from a contribu- of an illegitimate child belonged to the mother, notwithstanding tor who has certainly had an opportunity of judging as to the mode the suggestion once made by Maule, J., that she in which Mr. WARR's proposals are likely to work. While we incline mere stranger to the child. But in consequence of the statutes to think that his apprehensions are too gloomy, there is no

referred to by Mr. Campbell in the notes to Re Agar-Ellis, the doubt that his observations deserve careful consideration. He says: father's right to custody is now no more than & primâ facie right

Though so far it bas attracted but slight attention, the Bill which he will not be allowed to exercise if by his conduct he has which Mr. WARR is introducing will, if it passes into law, produce shown himself unequal to the performance of the corresponding a most radical and far-reaching change in the present status of the duties; and the courts, following the lead of the Legislature, have profession. The aim of the Bill, shortly, is to give the Council of

come more and more to regard the welfare of the child as the chief the Incorporated Law Society a power of exempting all articled factor in determining who ought to have the custody. At the same clerks who have obtained university law degrees from the Solicitors' | time Re Agar-Ellis shews that the authority of the father is not to Final Examination. The ostensible object of the Bill is to increase be lightly set aside, and if he has not forfeited his rights by mis, the number of university men in the ranks of the profession; and, conduct or otherwise they will prevail until the children are twentyso far as can be seen, this is the only benefit its promoters hope to one, in spite of the opposition of the mother and of the children achieve; but the advantage of the Bill, whether to university men

themselves. The note on American law shews that in the United or to the profession as a whole, is so questionable that I trust the States there is a similar tendency to place the welfare of the children Council will give the matter serious consideration before they extend in front of the father's strict rights. their support to the measure.

The title “Injunction” affords instances in Duke of Bedford v. If the Bill passes and is adopted, the Council must be prepared to Trustees of the British Museum (2 My. & K. 552) and Newson v. welcome as solicitors a large number of men with no adequate Pender (27 Ch. D. 43) of the system of cross-references by which Mr. guarantee of proficiency in the practical work of their calling: Campbell very much enhances the value of the series. The former Though probably the University Law Examinations will be modified case has already been printed as a ruling case under “Contract,' by the addition of an examiner appointed by the Council, it is sub- and the latter under “ Ancient Light”; but by means of references mitted that it will be impossible to conduct these examinations on to the earlier volumes they are now introduced again, the one as an other than purely theoretical lines. How can the technicalities of authority in conjunction with Sayer v. Collins (28 Ch. D. 103) on the conveyancing be grasped without actual experience of drafting ? effect of alterations in the circumstances of an estate in extinguishWhere is the teacher who can explain the varied steps in an action / ing restrictive covenants; and the other in conjunction with Griffith to one who has never so much as seen a writ? True the examination, v. Blake (27 Ch. D. 474) on the principles regulating the granting of whatever it may be, will be succeeded by three years articles, but an interlocutory injunction. The bulk of the two volumes is devoted the testimonial of a good-natured principal is surely an insufficient to an elaborate treatment of the subject of insurance, in illustration guarantee of proficiency for admission on the Rolls; and so far as I of which a hundred ruling cases have been selected. These appear ta can see, it will be the only guarantee, for the examination prior to relate exclusively to marine insurance, and it would have been more articles cannot in itself be any test whatever of practical knowledge. convenient to have placed them under a head showing specifically

The profession, then, is in danger of an invasion by a race of their nature. To the law of marine insurance, however, they furnish pure theorists, who will triumphantly wave university hoods and a very full guide, the first section treating of insurable interest and degrees in the faces of their humbler but more practical brethren. beginning with Lucena v. Crawfurd (3 Bos. & P. 75), which The mischief will penetrate still deeper; there is a large class of men was twice taken to the House of Lords and, which decided that a conat every university with no definite bent towards any one profession, tract of marine insurance is a contract of indemnity, and that an whose whole object in life is to save trouble. These men are found insurable interest is necessary to enable the assured to recover. The in the third and fourth classes of the Law and History Schools at cases in section 2 deal with insurance agents and include Power v. Oxford in great numbers, as it is a recognized fact that a fourth class in Butcher (10 B. & C. 329), which defines the mutual relations of such subjects is an easier road to a B.A. than a pass degree. What assured, broker, and underwriter. Among the matters covered by a chance this Bill affords them ! After four years' slumber at the other sections are the construction of the policy, loss, adjustment of university, broken only by the brief effort rendered necessary by the losses, and return of premiums. The decision in Ionides v. Universal Law School, their profession stands ready made for them, with the Marine Association (14 C. B. N. S. 259), on the application to losses of sole qualification that the scene of their labours (!) be transferred the maxim causa proxima spectatur, is interesting in view of present from their college to the office of a solicitor.

possibilities. Where a vessel was wrecked through the captain losing The new regulation will no doubt swell the number of university his reckoning, and a light which would have saved her had been men in the profession, but they will be of a class which is not extinguished in consequence of war, the loss was held to be due to wanted and which will do no credit to either themselves or their perils of the sea, and not to hostilities; and an exception in the brother solicitors. In course of time solicitors with degrees will policy of the “consequences of hostility” did not bar the right of get a bad name-three years articles preceded by a mere theoretical the assured to recover, test will not be able to complete with five years articles followed by a thoroughly practical examination-capable university men will fight shy of a profession in which they start with so heavy a handicap; and the Bill, instead of encouraging, will eventually deter the very

BOOKS RECEIVED. class of men the Council wants from entering the profession at all.

The Laws of Insurance-Fire, Life, Acoident, and Guarantee. The matter rests with the Council: with their support the Bill will before they definitely decide which couree to take they will give some assisted by WILLIAM FIELDEN CRAIES, M.A., and Thos. SHEPHERD pass; without it, the Bill will be rejected; it is to be hoped that Embodying cases in the English, Scotch, Irish, American, and

Canadian Courts. By JAMES BIGGS PORTER, Barrister-at-Law; of the considerations I have mentioned their serious attention.

LITTLE, M.A., Barristers-at-Law. Third Edition. Stevens

Cassell's Family Lawyer; being a Popular Exposition of the Civil

Law of Great Britain. By a Barrister-at-Law. Cassell & Co.

(Limited). RULING CASES.

Principles of the Law of Consent. With Special Reference to RULING CASES. ARRANGED, ANNOTATED, AND EDITED BY ROBERT Criminal Law, including the Doctrines of Mistake, Duress, and CAMPBELL, M.A., Barrister-at-Law. Assisted by OTHER MEM- Waiver. By HUKM CHAND, M.A. Bombay Education Society's BERS OF THE BAR. WITH AMERICAN NOTES BY IRVING BROWNE. Press. VOL. XIII.: INFANT-INSURANCE. VOL. XIV.: INSURANCE INTERPRETATION. Stevens & Sons (Limited).

The Yearly Abridgment of Reports : being a Full Analysis of all

Cases Decided in the Supreme Courts during the Legal Year 1896-7, These two volumes of the “Ruling Cases” series embrace the

so far as reported to end of December, 1897, in all the Reports; titles " Infant,” “Injunction,” “ Inn-keeper, “Insurance," "In- together with a Selection from the Scotch and Irish Reports, Preterest,” and “

Interpretation.” The custody of infants is illustrated ceded by Complete Lists of all Cases, Statutes, and Rules Cited, and

concluding with a Copious Index to Points of Law Considered. By ARTHUR TURNOUR MURRAY, B.A., Barrister-at-Law. Butterworth & Co,

Mr. Justice KekBWICH (1898–C.-No. 1,059).
In re The Civil, Naval, and Military Outfitters (Limited) William Hudson

Hand v The Civil, Naval, and Military Outfitters (Limited)



[To the Editor of the Solicitors' Journal.]

Court of Appeal. Sir, In several instances lately I have noticed that in dealing ALLAUSEN v. EALING AND SOUTH HARROW RAILWAY CO. No, 2. with this deservedly-abused section-for example, in the leading

19th April. article in your issue of the 2nd inst., and also in the further report RAILWAY COMPANY—Notice to Treat-PROPOSAL TO TAKE PART OF A of the Council of the Incorporated Law Society set out in your issue PRIVATE ROAD LEADING TO MANSION-HOUSE COUNTER NOTICE of the 9th inst., p. 399—the case of Veuve Monnier et ses Fils REQUIRING COMPANY TO TAKE THE WHOLE OF THE HOUSE AND GROUNDS (Limited) v. Bloomenthal is coupled with the Kharaskoma case, May " Part ONLY OF ANY HOUSE OR OTHER BUILDING OR MANUFACTORY"nard's case, and Ibbotson v. Ibbotson & Co. (Limited) with the inten LANDS CLAUSES CONSOLIDATION Act, 1845 (8 & 9 Vict. c. 18), s. 92. tion of shewing the extreme inconvenience and hardship wrought by This was an appeal by the plaintiff from a decision of Stirling, J. The this ill-drawn section 25.

defendant company proposed to purchase compulsorily, for the purpose of It seems worth while to point out that in all these cases, except making their railway, a small part only of a private road forming the Bloomenthal's, had a proper and complete contract been filed in approach to the house and grounds belonging to the plaintiff, and the accordance with the section, no inconvenience would have been felt, plaintiff contended that under section 92 of the Lands Olauses Consolidawhereas in Bloomenthal's case, however complete a contract had been tion Act, 1845, he was entitled to require the defendant company to take filed, it would not have availed to protect Bloomenthal from being the whole of the said house and grounds. The plaintiff therefore moved placed on the list of contributories.

for an injunction to restrain the defendant company from proceeding The registration of a contract under the section has never been Twyford Abbey which was comprised in the defendant company's notice

with the purchase of that part of the plaintiff's mansion-house known as held to exempt the shares from being paid up in full, as it only regu- to treat, without purchasing at the same time the remaining portion of lates the mode of payment--that is, when such payment is not made the plaintiff's said mansion-house. The plaintiff had acquired the in cash (per Lindley, L.J., Addlestone Linoleum Co.,1897, 37 Ch. D. 205 ; property in question by a deed of conveyance dated the 6th of NovemAlmada & Tirito, &c, 38 Ch. D. 425).

ber, 1890, and executed by the devisees of a gentleman named Willan. The decision of the House of Lords in Bloomenthal's case did not The defendant company was incorporated by a private Act, which was turn upon the section at all; it was based on the simple ground of passed in 1894, and which incorporated the Lands Clauses Acts, and Part estoppel. The agreement between the parties was one whereby I. of the Railways Clauses Act, 1845. The defendant company's notice to Bloomenthal agreed to lend money to the company upon the security treat, which was served on the plaintiff on the 21st of January, 1898, of fully-paid shares of the company, This agreement was followed stated their intention to take for the purposes of their railway a portion by the issue to Bloomenthal of a certificate for shares purporting to of the plaintiff's private road containing 2r. 31p. This piece of land was be fully paid up, and it was held that the company and its liquidator necessitated a lowering of the road way; and the defendant company were therefore estopped froin saying that the shares were otherwise stated their willingness to purchase and accept, instead of the land itself, than fully paid. Had this defence not prevailed, it seems clear that, an easement enubling them to execute the necessary works. The plaintiff unlike the other cases referred to, no course was open to Bloomenthal then gave notice that he required the defendant company to purchase and to enable him to protect himself against the effect of section 25. take the whole of the house within the meaning of section 92 of the Lands April 20, 1898.

ENQUIRER. Clauses Consolidation Act, 1845. The defendant company was proceed

ing to have the value of the 2r. 31p. they proposed to take determined by a jury, and the plaintiff accordingly brought an action against them, and

gave notice of motion for an injunction to restrain them from so proceedNEW ORDERS, &c.

ing. Stirling, J., decided that the portion of the road which the defendTHE SOLICITORS ACT, 1888.

ant company proposed to take was not part of the mansion-house known

as Twyford Abbey, and refused the motion. The plaintiff appealed. RULES.

The Court (LINDLEY, M.R., and Rigby and COLLINS, L.JJ.) dismissed By virtue and in pursuance of the Solicitors Act, 1888, and of all the appeal. other powers and authorities enabling me in that behalf, I, the Right construction of section 92 of the Lands Clauses Consolidation Act, 1845,

LINDLEY, M.R., said : I think this case turns, after all, on the true Honourable Nathaniel Lindley, Knight (Master of the Rolls), with which, of course, must be construed upon the same principles as those the concurrence of the Right Honourable Hardinge Stanley, Earl of which have been applied to its construction ever since the Act was passed. Halsbury, Lord High Chancellor of Great Britain, and the Right As to those principles, I do not think there has ever been any conflict of Honourable Charles, Baron Russell of Killowen, Lord Chief Justice judicial opinion. Section 92 of the Act of 1845 is this : " And be it of England, do make and publish the following additional rules for enacted that no party shall at any time be required to sell or convey to regulating the making, hearing, and determining applications to the the promoters of the undertaking a part only of any house or other Committee under the Act and reports by tho Committee to the Court building or manufactory, if such party be willing and able to sell and under the Act, and generally for the purposes of the execution of convey the whole thereof.” Now, it has been laid down ever since this the provisions of the Act.

Act was passed that by the word "house" is meant, not a mere building, Dated this first day of April, 1898.

whether for residential or for other purposes, but whatever would p.188 NATHANIEL LINDLEY, M.R.

under the conveyance of “ a house." There is no doubt at all about that; RUSSELL OF KILLOWEN.

but, as I observed during the argument, it is very seldom that you have a HALSBURY, C.

conveyance of a house without some sort of context which enables you

to see what is meant. The use of the word "house" may convey a piece PART I.

of land, more or less large, but it does not follow that every garden which Committee determine to proceed in his absence, and in any other of a house"? If we look at the conveyance of November, 1890, we find

5 (a) In any case in which the solicitor does not appear and the is enjoyed with the house is part of the house. Still, that is the point we case with the consent in writing of the solicitor, the Committee may, that the vendor is selling a portion of a larger estate. Paragraph 14 shows either as to the whole case or as to any particular fact or facts, that he is selling under the order of the court, and the recital is that it is receive and act upon evidence given by affidavit, including the ordered that the vendor should be at liberty to sell. Therefore what he affidavit or affidavits upon which the application is made.

was ordered to sell, or authorized to sell, was something more than & Ő (6) Any affidavit made for the purpose of the Act or of these house, a good deal more than would pass by a grant of the house. He is Rules shall be sworn in accordance with the provisions of the Com- authorized to sell a house called Twyford Abbey. Then, if we look at missioners for Oaths Act, 1889.

the parcels, what is it that he does sell? He sells the messuage com; monly called Twyford Abbey, together with the appurtenances, and

the meadow land adjoining the said mansion-house aud premises, and TRANSFER OF ACTIONS.

When we look at the plan we find what is meant by Twyford ORDER OF COURT.

Abbey mansion-house. Now, how much of all that can be said under this

conveyance to be part of the house ? I doubt very much whether the Monday, the 18th day of April, 1898. pieces of land marked on the plan 30 and 36-that is, the avenue--are part I, Hardinge Stanley, Earl of Halsbury, Lord High Chancellor of Great of the house at all. They are, no doubt, part of the land occupied with Britain, do hereby order that the actions mentioned in the Schedule hereto the house ; but I think they are not part of the house itself. I think it shall be transferred to the Honourable Mr. Justice Wright.

would be stretching language to say that that avenue, situated as it is, is SCHEDULE.

part of the house, or would be included in a conveyance of the house if we

had nothing else. If that is so, the company are absolutely in the right. Mr. Justice KEKBWICH (1898-D.-No. 257).

But it is said that the authorities against that view are too strong; and we In re Dowling & Son (Limited) John Roberts v Dowling & Son (Limited) are pressed by Mr. Balfour Browne, who is always logical, with authorities

80 on.


which, it is said, have gone to such an exteut that we cannot logically of two companies, and that there was a quarrel as to some of the terms of avoid going a step farther. I do not feel disposed to be so logical as to the amalgamation. His lordship guarded himself from going so far as to do that which appears to me to be contrary to the right construction of say that the plaintiff company had any monopoly in the use of the word the Act of 1845. I think perhaps the strongest of the cases relied upon is

Manchester." Furniss v. Midland Railway Co.(L.R.6 Eq.473,475). But what was being done COLLINS, L.J., was of the same opinion, and did not wish to add any. there was to destroy the waterworks, or so to interfere with with them that thing. Appeal allowed.-COUNSEL, Moulton, Q.C., Astbury, Q.C., and the judge felt bound to prevent that. But I am satisfied that in the 0. L. Clare ; Cozens-Hardy, Q.C., and Stewart Smith. SOLICITORS, Chester, present case nobody looking at this plau and attending to the mode in Mayhew, Broome, f Griffiths, for Farrar & Co., Manchester; Firth $ Co., for which the house and the land are joined, can reasonably say that the Godfrey, Rhodes, f: Evans, Halifax. former and the latter are parts of one whole. The land does not fairly

[Reported by W. SHALLCROSS GODDARD, Barrister-at-Law.] come within the description of “part of any house," extensively as that description has been construed by some of the decisions. To hold otherwise would be pressing those decisions too far, and would, I think, be to make a very bad precedent. The appeal must therefore be dismissed.

High Court-Chancery Division. RIGBY, L.J., delivered judgment to the same effect.

COLLINS, L.J., concurred.-- COUNSEL, Balfour Browne, Q.C., Bu'cher, R: WHITE'S CHARITIES. CHARITY COMMISSIONERS v. LONDON, Q.C., and E. Moon; Phipson Beale, Q.C., Freeman, Q.C., and R. F. Norton.

MAYOR AND CORPORATION OF, Romer, J. 20th April. SOLICITORS, Crossman, Prichard, Crossman, f Block; Baxter & Co.




Summons. This was an application by the Charity Commissioners, LIMITED COMPANY-SIMILARITY OF NAME_NAME OF OLD COMPANY ADDED under the provisions of section 3 of the Charitable Trusts (Recovery) Act,

TO NAME or EXISTING COMPANY-COMPANIES Act, 1862 (25 & 26 Vict. c. 1891, and rule 2 of the Rules of the Supreme Court (Charitable Trusts 89), s. 20.

Recovery), 1892, for an order directing the defendants, the Corporation of Appeal by the plaintiff company from a decision of Byrne, J. The London, or (alternatively) the defendant, Hy. Thos. Tubbs, to pay certain action was brought for an injunction to restrain the defendant company, £6 128. 6d. respectively, issuing out of land whereon the messuage known

amounts alleged to be due in respect of two annual rent-charges of £7 and its agents, and servants, from using or carrying on business under its present name, style, or title, or any other style or name which included the

as 24, Shoe-lane formerly stood. These rent-charges were admitted to be plaintiff company's name, or so nearly resembled the same as to be calcu- charged by the will of T. White, dated in 1619, upon the premises then lated to deceive the public, or induce the belief that the business carried known as 24, Shoe-lane, and the only question argued was whethre the

The premises were on by the defendant company was the same as the business carried on by Corporation or Tubbs were now liable to pay them. the plaintiff company, or in any way connected therewith. The plaintiff acquired by the Corporation in 1825, under statutory powers to acquire company was incorporated in 1888, and had its brewery in Manchester, property for a market known as Farringdon Market, and were with other with a large business in that city and neighbourhood.

The North property conveyed to them by the freeholder, subject to the above and Cheshire Brewery Co. (Limited) was in existence in 1888, and had its thrown by them into the road way so

The property, formerly. 24, Shoe-lane, was

as to widen Shoe lane and brewery at Macclesfield, with a large business in that neighbourhood. The North Cheshire Co. sold its business to a Mr. Rhodes, who formed it into sold the side of Farringdon Market by auction to Tubbs, subject to parti.

Stonecutter-street. In 1892 the Corporation under statutory powers a new company (the defendant company), which was registered on the 11th of October, 1897. On the 20th of October the solicitors of the plaintiff culars and conditions of sale which showed that the land was sold subject company wrote, on the instructions of the board of directors, to the defendant to annual rent-charges amounting to £28 163. 61., but not upon what company as to their use of the name Manchester Brewery Co., and the writ particular property the said rent-charges were charged, and barred the in the action was issued on the 22nd of October. The directors of the purchaser from requiring an abstract of title or production or delivery to defendant company did not proceed to an allotment of shares until the him of any deeds. The property was conveyed to the purchaser or his 26th of October. The evidence before Byrne, J., went to shew that nominees in several plots, and each plot was conveyed, " subject tɔ such the defendant company's business in Manchester was of a very limited part or parts, if any, of the said rent-charges or any of them as may be extent, although it was the intention of the directors to extend it as much charged upon the said hereditaments and promises hereby conveyed.' as possible in that direction. Byre, J., being of opinion that in using charges or for the indemnification of the Corporation. Part of the pro

None of the conveyances contained any covenant for payment of the rentthe word Manchester there was no intention on the part of the perty, which was conveyed to Tubbs himself, abutted on Shoe-lane and defendant company to interfere with the plaintiff company's business, Stonecutter-street, and the centre line of Stonecutter-street, where this and that there was no evidence of any of the general public being property abutted on it, ran through the site of the former mes iuage, 24, deceived by the similarity of the names, dismissed the action. plaintiff company appealed, and on the hearing of the appeal the court street to the centre must be presumed to have passed to Tubbs on the

Shoe-lane. It was contended for the Corporation that the soil of the called attention to section 20 of the Companies Act, 1862, on which the conveyance of the land abutting thereon, and that Tubbs was therefore question primarily turned. Section 20 provides as follows: "No company liable in respect of the said rent-charges charged by the said will of T. shall be registered under a name identical with that by which a subsisting White as owner of the land upon which they were charged, and company is already registered, or so nearly resembling the same as to be Micklethwait v. Newlay Bridge Co. (33 Ch. D. 133, p. 145; 35 W. R. Dig. calculated to deceive, except in a case where such subsisting company is 71) was cited for Cotton, L.J.'s, statement of the law. in the course of being dissolved, and testifies its consent in such manner as the registrar requires."

Romer, J., said that it was not denied that the rent-charges were The Court (LINDLBY, M.R., and Rigby and Collins, L.JJ.) allowed the between the Corporation and Tubbs, Tubbs ought to pay : and his lord

payable, and the question was whicb of the defendants was liable. As appeal.

LINDLEY, M.R.--I cannot take the same view of this case as was taken ship was able to do justice, for in his opinion Tubbs was legally liable. by the learned judge in the court below. The case is a peculiar one, and at the time vested in the Corporation, he became liable under the circum,

If the conveyance to him included that part of the highway whieh was turns on the 20th section of the Companies Act, 1862, which I will read. stances stated. The Corporation, at the date of the conveyance, owned [His lordship read the section, and stated the facts shortly, and continued :] The peculiar thing is that, without consulting them, the de

at any rate a moiety of the site of 24, Shoe-lane. The general rule as to fendant company did in fact take the whole of the name of the Manchester Cotton, L.J., in Micklethwait's case (33 Ch. D., at p. 145), and, whatever

the presumption of the highway passing ad medium filum was stated by Brewery Co. They do not come within the first exception to the section. the origin of the doctrine, the law was now settled. It was suggested We have to deal with a larger title. What does it denote? The name of that the rule did not apply to streets in towns. Why should it not? the defendant company would mean to anyone who knew of the existence Where was the line to be drawn? At country towns, small towns, of the two companies carrying on business, one in Manchester and the villages, hamlets ?. Where was the limit to the suggested exception? In other in Macclesfield, that they had been amalgamated. That being so, his lordship’s opinion the rule did apply to streets in towns. Was there can it be said that it does not fall within the second part of the anything, then, in the case before the court to rebut the presumption? 20th section ? In fact, they do deceive people into thinking that he could not find anything. Under the circumstances, there was no the business of the one company is being carried on by the other. I do not see any answer to that. If the defendant company state that they street. The public were not prejudiced: the use of the highway was

reason why the Corporation should have wished to retain the soil of the are carrying on business under the larger name, they must be carrying secured to them just the same. The circumstances of the purchase by on the business of the Manchester Brewery Co.. That is calculated to Tubbs, the sale by the Corporation, the difficulties in ascertaining what deceive, and there can be no answer to it. It is true that there is no parts of the property were charged, were in bis lordship's opinion circumevidence of actual deception; that was probably due to the fact that the stances tending to support the presumption. It was suggested that the case was tried so soon after the new company was started. The appeal Corporation owning the soil beyond the medium filum was a rebutting cir. must be allowed, and there must be an injunction substantially in the cumstance, but in his opinion that was not so.

He felt no doubt that it terms asked for. The defendants have certainly gone too far. I do not A. owned houses on one side of the highway and B. on the other, but wish to say anything which might lead to the idea that the plaintiff the soil of the highway was not evenly divided between them but was as to company has a monopoly in the name of “Manchester”, but I do say the greater part owned by A., supposing that A. conveyed his houses as that where a company uses the whole of the name of another company it bounded by the highway the presumption passed A.'s part of the highway: can be stopped, because that would lead to the inference that there His lordship, therefore, held that Tubbs was legally liable in respect of was some connection between the two companies. Such a course is not the rent-charges. - Counsel. Vaughan Hawkins ; Neville, Q.C., and 4. allowed either by law or by fair dealing.

Rigby, L.J., was of the same opinion, and said that on hearing the title Allen ; , Farwell, Q.C., and Sheldon. Solicitors, Clabon ; #. #. Crawford; of the case first of all he expected to find that it was an amalgamation

(Reported by J. F. WALEY, Barrister-at-Law.)


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