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CASES REPORTED THIS WEEK.
of the subjects which are now not essential, because, under the In the Solicitors' Journal. Tucker. Re, Bouchier v. Gordon .. 270 system now in force, no matter what marks a candidate may obtain
Wilenck, Re Beddington v. Atlee
269 in the non-essential subjects, he would not be allowed to pass if he
Ystalyfera Gas Co., Re ........... Callow y. Young,
failed in equity, common law, or conveyancing. Clough, Re, Bradford Commercial
In the Weekly Reporter.
Furee Vesta Co. v. Bryant & May 284 A CAREFUL DRAFTSMAN always uses the same words to express Fairlamb and Others v. Beaumont 272 Gregson's Trusts, In re
286 Grimworth's Trusts, Re
Grey's Settlement, In re, Acason the same meaning. Accordingly, if we find that words in an Act Hilleary and Taylor, Re...
287 Hope y. Croydon and Norwood Hetherington's Trusts, In re
of Parliament are repeated without alteration in a subsequent Act Tramways Co.....
292 dealing with the same subject matter, the presumption is that they Hubbuck v. Helms
Official Receiver, Ex parte, In re Ingham v Walker; Ellwood, Clai
are intended to bear the same meaning in each Act; and this pre
271 Phillips. In re Montagu v. Land Corporation of Rawlings. Ex parte, In re Cleaver 281 the earlier Act have received judicial interpretation : see Ex
281 sumption is much stronger, not to say conclusive, if the words in England..
Saffron Walden Election, In re, Ex O'Kelly v. Callaghan
parte Robson Royal Liver Friendly Society, Re. 269 Secretary of State and Fletcher,
290 parte Campbell (5 Ch. 703). Conversely, if the words are altered Ruddiman's Trusts, Re
282 in the subsequent Act, the presumption is that they are intended Rust v. Victoria Graving Dock Co. 268 Staniar v. Evans, Evans v. Staniar 286 to bear different meanings in the two Acts. As an example of Sevton, Re. Seyton v. Satter
“Victoria," The thwaite
this, let us consider what could be sold under the power of sale Sheffield Waterworks Co. v. Guar
Phillips dians of Sheffield Unicn
290 conferred on mortgagees under Lord CRANWORTH's Act (23 & 24
Vict. c. 145, s. 11), now repealed, and by the Conveyancing Act,
1881 (44 & 45 Vict. c. 41, s. 19). The words in Lord CRANThe Solicitors' Journal and Reporter. WORTHS Act are, When any principal money is secured or
charged by deed on any hereditaments of any tenure, or on any LONDON, FEBRUARY 19, 1887.
interest therein, the person to whom such money shall for the time being be payable
shall have the following powers CURRENT TOPICS.
(1) a power to sell
the whole or any part of
the property.” The words in the Conveyancing Act, s. 19, are, LAST WEEK we called attention to two private Bills which had “A mortgagee, where the mortgage is made by deed, shall been introduced into the House of Lords, with a view to the forma bave the following powers (1) a power to sell the tion of company trustees—viz., the National Safe Deposit Bill mortgaged property”; and, (section 21) “ to convey the property and the Securities Insurance and Deposit Corporation Bill. We sold for such estate and interest therein as is the subject of the are informed that both these Bills have now been withdrawn. mortgage.” It was decided in Hiatt v. Hilman (19 W. R. 694)
that, where leaseholds were mortgaged by demise, the power of the business of the Chancery judges if one regards their daily cause and Moves (ante, p. 254) that the power of sale conferred by the A DJOTENED SUMMONSES appear to form a very large proportion of sale given by Lord CranwORTU's Act enabled the mortgagee to sell
the whole term. On the other hand, it was decided in Re Hobson Jists this week. Mr. Justice Kay has had little else in his paper Conveyancing Act only authorizes the mortgagee to convey the during four days, and he announces a like paper for four days next week. Mr. Justice North and Mr. Justice STIRLING have also interest vested in him. Though there has been some doubt on the been occupied during four days with similar work, and the latter point among, conveyancers, the more common opinion was in judge announces his intention of continuing adjourned summonses
accordance with the decision in Hobson and Howes (see 2 Key & on three days next week.
Elphinstone's Prec., p. 24; Wolstenholme & Turner Conv. Act, p. 28). It should, perhaps, be observed that it is easy to supplement
the implied statutory power of sale by provisions enabling the During THE HEARING of an appeal in Court of Appeal No. 2 on mortgagee to sell and convey any interest of the mortgagor in the Thursday last week some difficulty was experienced by reason of property which is not conveyed to him, such as the last day of a there not being copies of some material documents for the use of all term retained by the mortgagor on a mortgage of leaseholds by the judges. Lord Justice Cotton said that each of the three demise, or the legal estate retained by the mortgagor where the judges ought to have a copy of every material document, so that mortgage is by way of charge only. There is no difficulty in he might be able to follow the points which were discussed by giving the power to sell; any form of words that renders the meancounsel. Sir Horace Davey, who was engaged in the case, said ing clear will suffice. There is, however, some little difficulty in that be understood that the taxing master would not allow the giving a power to the assigns of the mortgagee to convey to a purcosts of three copies of a document. Lord Justice Cotton said that chaser property which is not conveyed to the mortgagee. A power he had mentioned this matter before. He thought it was a waste of attorney, expressed to be irrevocable, may be given under the of public time for the taxing masters to prevent suitors from Conveyancing Act, 1882, 8. 8, to the mortgagee to convey to a supplying those copies which are necessary to enable a case to be purchaser. This is certainly good so long as both mortgagor and disposed of in reasonable time.
mortgagee are alive, but there is a serions doubt whether a conveyance, after the death of the mortgagor, under the power, will
defeat the right of his heir, and it possibly ceases to operate on IN OUR ISSUE of the 15th of January we called attention to the the death of the mortgagee (see 2 Key & Élph. Prec. 33 ; contrà, change which the Council of the Incorporated Law Society proposed Wolstenholme & Turner Conv. Act, 70). to make in the division of the subjects for the final examination. The new regulation, which will come into operation in January, 1888, provides for the subjects being divided into four heads, instead of WE REPORT elsewhere a county court decision on what, so far six, as at present. According to the old system, only common law, as we know, is a new point under the Agricultural Holdings Act, Equity, and conveyancing were essential, and a candidate need not 1883. Section 44 of that Act prohibits a distress for rent which
up the other three subjects. Under the new regulation no became due more than one year before the distress ; but provides one subject is more essential than another. There will be a fixed that where, “ according to the ordinary course of dealing between minimum which a candidate must obtain in order to entitle bim the landlord and tenant, the payment of the rent has been allowed to pass, but it will not matter in which of the subjects the candidate to be deferred until the expiration of a quarter of a year or half fiets the necessary marks. Some idea, however, may be gathered a year after the date at which such rent legally became due, then, fifteen questions will be set in conveyancing and fifteen in equity. deemed to have become due at the expiration of such quarter or The third paper will contain fifteen questions also, eleven in half-year as aforesaid, as the case may be, and not at the date at questions will be devoted to probate, divorce, and admiralty, six was made, on the 28th of December, 1886, by the landlord of a holding
The ecclesiastical law. This arrangement will give a greater chance of first of these ball-gears' rent was legally due on the 11th of passing to candidates who possess a special knowledge of any one November, 1885; but it was admitted that, according to the
ordinary course of dealing, the payment of rent was deferred until drawing attention to the reason for the decision-viz., that there the expiration of half a year; consequently, for the purposes of did not appear to be any legal duty imposed on any persons to section 44, the first half-year's rent was to be deemed to have keep such registers.
We assumed that the decision of the court become due in May, 1886, and there was no dispute that the that the registers were inadmissible because it was not proved that landlord was entitled to distrain for the first two half-years' rent. such legal duty existed, must have proceeded upon evidence of The question was whether he could distrain for the last half-year's experts in Scotch law that there was nothing to shew any such rent, legally due on the 11th of November, 1886; it being contended duty ; but we have since learned that the expert who was called for the tenant that the effect of the proviso above quoted is that, in all at the trial before Mr. Justice STEPHEN admitted that he was not cases of rent deferred according to the ordinary course of deal- acquainted with this branch of Scotch law, and simply referred the ing, the rent is to be deemed, for the purpose of a distress, to judge to a book on evidence, without expressing any opinion become due at the expiration of the deferred period, and not at the whether the law as therein stated was correct. The decision of date at which it legally becomes due. The learned county court the Court of Appeal refusing to admit Scotch registers in evidence judge refused to construe the proviso in this way, and we think he must, therefore, be taken to mean only that in the absence of was right in his decision, though we do not find very clearly evidence that they were kept in fulfilment of a legal duty they are indicated in his judgment the true reason for his construction. not admissible. It is possible that some expert, more familiar with It appears to us that the contention of the tenant overlooked the this branch of Scotch law, may hereafter testify that there is such important words of the proviso : "for the purpose of this section a legal duty. the rent shall be deemed to have become due," &c. What is the purpose of the section ? Simply to disable the landlord, save in the cases specified, from distraining for rent legally due more than
THERE IS A STORY afloat that in recent legal examination the a year before the distress. For the purpose, therefore, of rent candidates were asked, amongst other things, to give the meaning legally due more than a year before the distress, but for no other of reditus nigri, and to explain the origin of the rights of propurpose, the right to distrain is to be regulated by the time of perty. The first of these questions seems to have lain beyond the deferred payment. There are no words in the section providing range of reading of most of them; but some ingenious young that the landlord shall in no case recover by distress more than å gentlemen conjectured that it indicated an ancient fugitive slave year's rent. The proviso is introduced by way of exception to the law, or that it corresponded with the operation known in the preprevious restriction on the landlord's legal right of distress; and it sent day as levying black mail. The second of these questions was appears to us that it would be contrary to all rules of construction doubtless within the range of reading of most of the candidates, but. to extract from it a further cutting down of the landlord's rights. out of their power to answer concisely. One of them, however,
seems to have been equal to the occasion, stating that “the
Creator devised the world to the use of man. Тн CASE of The Great Western Railway Co. v. MacCarthy, decided on Monday in the House of Lords, raised once again the constantly-recurring question as to the reasonableness of a condition limiting the responsibility of a railway company in
THE APPELLATE JURISDICTION BILL, 1887. respect of animals or goods delivered to them for carriage. The THERE appears to be some misapprehension as to the exact scope principles upon which the House of Lords decided the case had and effect of the Bill recently presented to the House of Lords by already been well settled, the only question being as to their the Lord Chancellor for the purpose of amending the Appellate application. The condition in question appears to have freed the Jurisdiction Act, 1876. The necessity for an amending Act becompany from all responsibility in respect of cattle delivered to came obvious in November last, when it was found that, as the them for carriage, except when the damage or loss was caused result of section 8 of the Appellate Jurisdiction Act, 1876, Lord by the wilful misconduct of the company's servants It is Herschell and Lord Bramwell could not take part in the hearing quite clear, since Manchester, Sheffield, and Lincolnshire Railway of appeals to the House of Lords during the prorogation of Parlia. Co. v. Brown (8 App. Cas. 733), that such a condition, or
ment. This section provides that “the House of Lords may sit even a much more stringent one,” is reasonable, if a reason and act for the purpose of hearing and determining appeals, and able alternative is given. "If the company are willing and offer also for the purpose of Lords of Appeal in Ordinary taking their to carry for a reasonable remuneration, upon the ordinary legal seats and the oaths, during any prorogation of Parliament." The liability, whatever it may be, whether that of a common carrier latter part of the section, as if to leave no doubt about the matter, or of a bailee for reward, then they may carry on any terms they provides that “no business other than the hearing and determinalike to impose for a lower rate. In the case in question the House tion of appeals and the matters connected therewith, and Lords of of Lords were of opinion that an alternative had been given Appeal in Ordinary taking their seats and the oaths as aforesaid, within this principle, inasmuch as it appeared that the company shall be transa":ted by such House during such prorogation." Lord did hold themselves out as willing to carry, on their ordinary legal Herschell and Lord Bramwell, therefore, not being Lords of Appeal liability, at a rate less than the maximum rate authorized by their in Ordinary, and not having taken the oaths since the last dissoluActs, but ten per cent. greater than the reduced or owners’ risk tion, could not take the oaths during the prorogation. The amendrate. It was contended that this rate, though authorized by the ing Bill remedies the defect by providing" (clause 1) that, notwithstatute, must be considered an unreasonable alternative, on the standing anything contained in section 8 of the Act of 1876, every ground that the two rates must be reasonable inter se, or, in other Lord of Appeal shall be empowered to take his seat and the oaths words, that the alternatives offered would cease to be reasonable at any sitting of the House of Lords during prorogation. whenever the reduced rate was so small as to induce all senders to It is suggested that this amendment does not go far enough, accept it. Their lordships held that a rate authorized by statute because nu provision is made for the case of a new Lord of Appeal must be presumed to be reasonable, and, therefore, the case fell in Ordinary taking his seat during a dissolution, or of a Lord of within the general principle before-mentioned. It was suggested Appeal who happened not to have taken his seat in the previous that certain matters contained in the company's notices with Parliament. Section 9, however, of the Act of 1876, which proregard to the carriage of cattle amounted to a qualification of their rides for the hearing of appeals during a dissolution, differs vers paid, and so the condition was made unreasonable, but, on the appeals during a prorogation. The side-notes of the two sections construction of the lang The case does not seem to establish any novel very important difference between them. During a prorogation,
of the notice, it was held that this are similar, but a careful comparison of the two clauses shews a principle. The main point of practical importance seems to be under section 8, it is the House of Lords which sits for the purpose that the court will assume any rate within the statutory maximum of hearing appeals and for the purpose of Lords of Appeal in. to be reasonable.
Ordinary taking their seats and the oaths. During a dissolution,
under section 9, the House of Lords does not sit at all, but her WE COMMENTED last week on the refusal of the Court of Appeal, House of Lords, to hear and determine appeals. Section 9 merely in Lyell v. Kennedy, to admit old Scotch registers in evidence, I provides for the sitting of the Lords of ? Appeal during a dissolu
was not 80.
tion, and at such sitting no taking of oaths does or can take place.
Section 3 of the amending Bill provides that the Judicial Com COVENANTS RUNNING WITH THE LAND. mittee of the Privy Council shall include such members of her
(II.) COVENANTS IN GENERAL (continued). Majesty's Privy Council as are for the time being holding, or have In our last article we treated of covenants made for the purpose held, any of the offices described in the Appellate Jurisdiction Act, of securing an interest in the land, such as a rent-charge. We 1876, as “high judicial offices.” This provision is supplemented by a new clause, moved by the Lord Chancellor on report, pro
now proceed to the next class of covenants :viding that the expression - high judicial office" shall be deemed, describe more correctly as covenants concerning acts to be done, or
(2) COVENANTS CONCERNING THE USE OF LAND.—These we might (we presume for all the purposes of section 6 of the Appellate not to be done, in connection with the land. The distinction thus Jurisdiction Act, 1876), to include the office of a Lord of Appeal taken between positive and negative covenants is of the utmost in Ordinary and the office of a member of the Judicial Committee importance, for we shall see that while in neither case does the of the Privy Council. With regard to clause 4 of the Bill, which deals with the posi; enforceable in equity.
burden run with the land at law, yet negative covenants are tion of the two retired Indian or colonial judges, it is to be noted that these retired judges will, under the amending Bill, for the recent case of Austerberry v. Corporation of Oldham (1885, 29
(a.) The burden.—This subject was very fully discussed in the first time become members of the Judicial Committee. The 30th Ch. D. 750), and, after a full examination of the cases, the court section of the Act of 1833—the Act for the better administration of Justice in His Majesty's Privy Council—provided that two could never run with the land at law that the matter may be con
was so strongly of opinion that the burden of such a covenant members of the Privy Council who have been judges in India of sidered to be practically decided. It was not, however, necessary the colonies, and who, being appointed for that purpose, attended for the judgment in the case ; this depended also upon whether the sittings of the Judicial Committee of the Privy Council, should the benext could run, and it was settled that it could not, on the receive the sum of £400 a year during the time they so attended. ground that the covenant did not sufficiently concern the land to Clause 4 of the amending Bill specifically provides that any person which it was sought to be attached. After putting aside cases who attends the sittings of the Judicial Committee of the Privy relating to covenants of the first kind-viz., those relating Council in virtue of the 30th section of the Act of 1833 “ shall to an interest in the land, it was found that there were only be deemed to be included as a member of the said Committee for two cases which could be considered authorities that the burden all purposes."
The clause further provides that, if there would run with the land. These were Cooke v. Chilcutt (1870, 3 is only one such person, as is the case at present, he shall Ch. D. 694), decided by Malins, V.C., and Western v. Macdermott be entitled to receive £800 a year for every year_during (1865, 1 Eq. 499), decided by Romilly, M.R. In the first case which he so attends ; but if at any time there be two such H. conveyed land to F., himself retaining adjacent land. F. persons they shall be entitled to receive £400 a year apiece. It is covenanted with H. to erect a pump and supply water to houses not easy to understand the object of this arrangement. The sum
on the land so retained by him. By various mesne assignments H.'s of £400 a year was originally intended as an indemnity for the land became vested in c. and F.'s became vested in Ch., who took expenses which might be incurred by the retired Indian or Colonial with notice of the covenant. Then C. brought an action against judges during their attendance at the sittings of the Judicial Ch. for breach of it. In his judgment the Vice-Chancellor exCommittee. The arrangement appears only to be defensible on the pressed the opinion that the covenant ran with the land, but, as ground that, when there is only one such judge a member of the Ch. took with notice, he was able to decide the case on that equitJudicial Committee his “expenses” are double what they would become if he had a colleague to sit with him. This seems absurd. able ground alone. Here it is to be noticed that the covenant was
The new Bill, so far as we have discussed it, professes to do positive, and the judgment could not be supported now even in however, goes much further than this. The Act of 1876 provided Nos. 9 and 10, in Brock-street, Bath. The two sites were originlittle more than cure defects in previous legislation. Clause 2, equity. Western v. dlacdermott, where the covenant was negative
Here there were adjoining houses, of summons to attend, and to sit and vote in the House ally conveyed by G. to W., who covenanted as to the height of the
buildings to be erected. Then W. conveyed No. 10 to R. in fee of Lords, during the time that he continued in his office and No. 9 to F. in fee. To these conveyances G. was a party, and a Lord of Appeal in Ordinary, and no longer.
both R. and F. covenanted with G. and W. as to the height of 2 of the Lord Chancellor's Bill will entitle
buildings to be erected in the gardens. G. had upon the first conof Appeal in Ordinary to sit and vote for his life.
veyance secured a rent-charge on the property for himself. UltiAlthough this section, in so far as it contemplates the creation of mately No. 9 became vested in M., No. 10 in Wes., and the rentlife peerages, is an innovation of considerable importance, the great charge issuing out of No. 9 in T. In accordance with the constitutional question, which was involved in the case of Lord original plan the street had been regularly built, and it com, Wensleydale, will not be raised. In 1856 the ministry advised manded a fine view to the south. In 1864 M. began to build Her Majesty to issue letters patent to Sir James Parke, creating
a circular projection at the back of No. 9 of such a height as him Baron Wensleydale for life. In the debate which followed to be in violation of the covenant, and T., the owner of the rentLord Lyndhurst's proposal to refer this exceptional patent to the charge, and so, practically, the representative of the original Committee of Privileges, it was common ground that the Crown covenantee, assented. W., the owner of No. 10, then brought an had in former times introduced life-peers to sit in the House of action against him. Romilly, M.R., considered that the burden of Lords, but that no such case had occurred for upwards of 400 ars. the covenant was one that ran with the land, and that, as the benefit The constitutional question at issue, therefore, was, had the of it descended to the successive owners of the adjoining land, it ancient prerogative of the Crown been lost by desuetude; or could
was out of T.'s power to release it. The case went to the Court it be exercised if the Queen thought fit to revive it? The life of Appeal (2 Ch. 72), but here, again, so far as our point is peerages contemplated by the Lord Chancellor’s Bill will, of concerned, the decision was unsatisfactory. Lord Chelmsford, L.C., course, owe their creation, not to the prerogative of the Crown, found himself relieved from considering the matter at law, because but to the act of the three estates of the realm. They will, in there was no doubt that the plaintiff could have an injunction in fact, be created with the consent of the House of Lords itself.
equity, the defendant having purchased his house with notice of the covenant.
In these cases the plaintiff had a good right in equity, and so the The report of the directors of the Provident Life Office, after stating question at law was shelved. It was necessary to have one in which that the proposals for new assurances amounted to £494,930, and that of these there was no claim in equity in order that the question of the legal finds of the office on the 31st of December Series 382,283,935, at the rected right might be raised and authoritatively discussed. This was so in freehold and leasehold estates in all parts of the United Kingdom, the who conveyed land to trustees for the purpose of making a road. ffe:30, 164, adds that: “ In view of the great depreciation in the value of Austerberry v. Corporation of Oldham. A. was one of several owners directors have felt it their duty to make a careful re-valuation of all the The trustees covenanted with A. and the other owners to keep the securities of this description held by the office; and have come to the road in repair, to let the public use it on payment of a toll, and to ou spente account to meet any possible loss that may are in the realidation let A. and the others and their assigns use it free of charge. A.
The matter retained land adjacent to the road on both sides of it.
was complicated by the fact that the Corporation of Oldham took | real property, and to impress upon their lands and tenements a over the road under statutory powers, but, so far as the present peculiar character, which should follow them into all hands, howquestion is concerned, this may be treated as an assignment of the ever remote.” road to C. A. had assigned his remaining land to B. The point The same idea was uppermost in the Chancellor's mind when he to be determined, therefore, was whether the burden of the cove came to the question of notice. Could an assignee be bound by nant ran so as to bind C., and the benefit so as to belong to B. any kind of covenant, no matter how strange to the law? This Judgments were delivered by Cotton, Lindley, and Fry, L JJ. question he answered decidedly in the negative. But, though the The benefit was dealt with very fully by Cotton, L.J. With that same result would be arrived at now, it would be in a different, we are not now concerned, Lindley, L.J., took up the question manner, and the doctrine of notice has been more clearly worked of the burden, and Fry, L.J., agreed with him. As we have said, out. the cases were carefully examined, and the former judge, after
The first good case on the subject appears to be Whatman v. discussing Cooke v. Chilcott and Western v. Macdermott, con Gibson (1838, 9 Sim. 196), but this is not the leading case, and cluded as follows:
we shall have to refer to it again for another purpose. The “I am not aware of any other case which either shews, or appears doctrine was certainly not settled in 1844. The question then to shew, that a burden such as this can be annexed to land by a mere arose in the case of Bristow v. Wood (1 Collyer, 480). B. sold one covenant such as we have got here ; and in the absence of authority plot of land to J., retaining the adjacent one, and B. and J. enterer it appears to me that we shall be perfectly warranted in saying that into mutual covenants as to the value of buildings to be erected, the burden of this covenant does not run with the land. After all, it and as to the use of the land. B. then agreed to sell the plot he is a mere personal covenant. If the parties had intended to charge had retained to w., who, at the time of the agreement, had no this land for ever, into whosesoever hands it came, with the burden notice of the covenant. Afterwards he discovered it, and refused of repairing the road, there are ways and means known to convey to complete. Knight-Bruce, V.C., considered that the question as ancers by which it could be done with comparative ease ; all that to whether the covenant would bind W. was of too doubtful a would have been necessary would have been to create a rent-charge nature for him to be compelled to accept the title. and charge it on the tolls, and the thing would have been done.
The first leading case is Tulk v. Moxhay (1848, 2 Ph. 774) before They have not done anything of the sort, and, therefore, it seems to Lord Cottenham, C. A., who was the owner of the vacant piece me to shew that they did not intend to have a covenant which should of ground in Leicester-square, conveyed it to B., who covenanted run with the land. That disposes of the part of the case which is, for himself and his assigns to preserve it in an open state as a perhaps, the most difficult.”
pleasure gronnd. A. was also the owner of some houses in the So, too, Fry, L.J.
square. B. subsequently conveyed to C., whose deed had no Upon the point whether the burden of the covenant ran with covenant, but who had notice of the original one. Upon C. prothe land of the covenantors, I am clearly of opinion that it did not ceeding to violate it, A., who had retained his houses, prayed for 80 run; and I share the doubt which has been expressed by my, an injunction against him. The judgment was decisive as to the learned brothers whether in any case, except that of landlord and equitable right being quite distinct from the question of whether tenant, the burden of covenants of thie description does ever run the covenant ran with the land at law. with the land." This being so, we may safely assume that a burden of this kind the land, this court cannot enforce it; but the question is, not
“It is said that the covenant being one which does not run with never runs with the land at law, and it only remains to consider whether the covenant runs with the land, but whether a party shall how the question is treated in equity. The most important of the early cases is Keppell v. Bailey tract entered into by his vendor, and with notice of which he pur
be permitted to use the land in a manner inconsistent with the con(1834, 2 My. & K. 517) before Lord Brougham, C. There certain
chased." landowners and owners of ironworks, and, among others, the lessees of the B. Ironworks, formed a joint-stock company to
This was followed in Wilson v. Hart (1866, 1 Ch. 463), where construct a railway connecting a lime quarry with the several
a yearly tenant under a person claiming through the original ironworks ; and in the partnership deed the lessees of the B. covenantor was held to be bound on the ground that he had notice. Works covenanted for themselves and their assigns, with the other The case is interesting too for the doubt displayed by the judges, shareholders, to procure all the limestone used in the iron works Sir G. J. Turner and Sir J. L. Knight-Bruce, L.JJ., as to whether from the quarry. The lessees assigned to C., who took with notice. the covenant ran with the land at law. The former denied it, C. violated the covenant, and the other shareholders brought an
because assigns were not mentioned; the latter expressly withheld action against him. He, on his side, objected to the covenant as
his opinion and relied solely on the equity. tending to a perpetuity, and as being in restraint of trade. The The second leading case, and the one which has for the present former point we shall consider later; the latter was over- completed the doctrine, is Haywood v. Brunswick Permanent ruled, as the restraint was only partial. But the chief questions Benefit Building Society (1881, 8 Q. B. D. 403). C. J. conveyed were whether the covenant ran with the land at law, or, failing land to E. J. in fee, reserving a rent of £11, and E. J. covenanted that, whether it could be upheld on the ground of notice. We to pay the rent and to erect and repair buiidings. By various need not go into the first of these again, but the judgment is mesne assignments the land ultimately became vested in the builduseful as containing a commentary on all the cases from the Prior's ing society as mortgagees, and they took possession. The question case downwards. It was also seen that, if a covenant like this arose whether they were liable on the covenant to repair. Ulti. was allowed to run with the land, then it would be possible to mately the matter came before the Court of Appeal, consisting of burden houses with the most inconvenient obligations ; a purchaser Brett, Cotton, and Lindley, L.JJ. A good deal was said as to the might covenant that only a particular trade should be carried on covenant not running with the land at law, but that does not conin the house, and this would bind it in the hands of his assigns for cern us. Of the utmost importance, however, is the distinction
It is true the covenant in Tatem v. Chaplin (1793, 2 drawn as to the rule in Tulk v. Moxhay, and it was laid down that H. Bl. 133) that a lessee should reside in the house was held to this only applied to restrictive covenants. Both in that case and in bind his assigns, though not named, but this was the case of a lease, Wilson v. Hart the covenants which were sought to be enforced and depended on the privity of estate between the lessee and the were of such a nature. Formerly, indeed, this was unavoidable, reversioner.
because the court had no mandatory injunction at its disposal, but It is more important, however, to consider the manner in which the same holds good now because the principle will not be stretched. Lord Brougham approached the question of notice. In consider- As was said by Cotton, L.J. :-" The covenant to repair can only be ing the matter at law, he had been struck, as we have just enforced by making the owner put his hand into his pocket, and there remarked, by the unusual nature of the service required and the is nothing which would justify us in going that length.”
incidents of a novel kind could be devised and attached to property at the fancy or caprice Oldham (supra), and it was because there was no equitable right
This distinction was acted on in Austerberry v. Corporation of of any owner.”
As bearing on the general question, the following on the covenant there, that the court went, as we have seens.com quotation from the judgment is important :. Great detriment would arise, and much confusion of rights, if hay, have now practically settled the question in a clear and con
fully into the legal question. These two cases, with Tulk v. Moxparties were allowed to invent new modes of holding and enjoying sistent manner.
and a rather wider range of selection of cases adopted, it would be diffiREVIEWS.
cult to suggest any improvement in the execution of the authors' design PRACTICE STATUTES AND RULES.
of furnishing a practical guide to the Act and Rules. We are bound
say that for this purpose, as distinguished from a treatise on the A COMPLETE COLLECTION OF PRACTICE STATUTES, ORDERS, AND law of bankruptcy, we do not know a more useful book. The notes RULES ; BEING A SELECTION OF SUCH PRACTICAL PARTS OF ALL we have consulted, in using the work in practice, we have found STATUTES, ORDERS, AND RULES AS ARE NOW IN FORCE AND accurate, practical, and suggestive. They contain ample crossRELATE TO THE PRACTICE AND PROCEDURE OF THE SUPREME references to sections and rules, and, it need hardly be said, have COURT, FROM 1275 to 1886. SECOND EDITION. By ALFRED the wholesome flavour of thorough familiarity with the subjectEMDEN, Esq., Barrister-at-Law, assisted by HERBERT THOMPSON, matter. The authors are naturally cautious in expressions of opinion Esq, Barrister-at-Law. Stevens & Haynes.
- perhaps here and there to excess, and this is, no doubt, one of A new edition within less than two years of this bulky book the disadvantages of what we may call official authorship; but their appears to indicate a somewhat unusual success, and, indeed, a work book is, nevertheless, one of great value to the practitioner. supplying the place of a small library of practice statutes, orders, and rules ought be welcome to practitioners. The legislation and orders up to last autumn coming within the scope of the book have been added,
BILLS OF SALE. so far as we have observed, with care and accuracy. The Crown Office THE FORM OF BILLS OF SALE GIVEN AS SECURITY FOR MONEY. Rules, 1886, are too voluminous and too special in their application to By STANLEY BUCKMASTER, Barrister-at-Law. Waterlow & Sons be inserted bodily, but such of them as affect the Supreme Court Rules (Limited). are given. The valuable collection of cases under distinctive headings has been largely increased ; according to the preface nearly the practitioner. After a somewhat careful examination we have not
This little book appears to be accurate, and will be very useful to may be best illustrated by taking the mode of treatment of such an Act it to be, very high praise. With commendable courage the author
This is and we intend as the Infants' Settlement Act (18 & 19 Vict. c. 43), which hus recently has given a collection of precedents ; time alone will shew whether come into prominence. At pp. 324. and 325 the reader will find the he has escaped the many pitfalls in the way of the draftsman, but as Act set out, with notes containing references to other statutes and to rules of court bearing on the subject, to authorities on the pro- he proposes, he has done all that is in his power to insure safety.
he has, in almost every case, given the authority for the clause that cedure, and to the cases which have been decided on the sections. The prudent draftsman, however, will always follow the suggestion arranged under short but sufficiently distinctive headings. The
of the author and refer to the discussion in the text rather thar trust result is that the practitioner who has to advise upon or carry out proceedings under the Act has before him, in two pages, a synopsis to the authorities given for the clauses. For example, in the note to of or references to all the law and authorities on the subject. The the covenant to insure at p. 24, the only authority cited is Goldstrom present edition, on the points with regard to which we have tested
v. Tallerman, an authority which is hardly sufficient to shew that the it, displays the same care and industry which we remarked in the clause is safe, while at p. 16 all the authorities are collected. The former edition. We would suggest thať the double references at the only blots in this book are that the proofs have not been corrected tops of the margins to statutes should be abolished and a reference with sufficient care, and that the index is not sufficiently full; but in heavy type to the Act on the page only should be given.
these are small matters considering the substantial merits of the work.
ADMIRALTY AND MARITIME LAW.
SUMMARY JURISDICTION ACTS.
EDITION. By JAMES C. HANNEN, Barrister-at-Law, and W. TARN HAM GLEN, Barrister-at-Law. SIXTH EDITION. By ARCHIBALD
Mr. Glen's well-known collection of statutes and rules has been reALGERNON JONES, French Advocate, and other Foreign Jurists. arranged by the editors. The three parts into which the work is now Two Vols. Butterworths.
divided—viz., (1) Acts, Rules, and Forms dealing exclusively with
the procedure in relation to summary convictions and orders ; (2) The above title shews the large addition which has been made in the Acts prescribing the duties of courts of summary jurisdiction in this edition to the scope of Mr. Pritchard's work. The book now committing persons accused of indictable offences; and (3) an covers the whole subject of maritime law, and embraces not merely appendix containing miscellaneous statutes relating to justices and English courts and their decisions, but also foreign courts and their their clerks -- appear to be convenient. The recent cases have been maritime jurisprudence ; the decisions of these courts being usually added, and notes are now appended to the Act of 1884, in one of conveniently given at the end of each heading: British courts in which we find an opinion of the law officers on the meaning of secforeign countries and colonial courts, colonial legislation on maritime tion 7. The rules of 1886, however, appear without comment. law, and colonial courts and their procedure are also now included in the work. And, with regard to subjects coming more near to the original scope of the book, the legislation relating to unseaworthy ships and the investigation of shipping casualties has involved large additions to the original matter. In the headings we have examined we have found no case omitted for which we have looked ; and we
CORRESPONDENCE. have found evidence, in the references and remarks in the foot-notes TAXATION OF COSTS IN THE CHANCERY DIVISION. to the pages, of anxions care to place before the reader a state
[To the Editor of the Solicitors' Journal.] ment of or reference to everything bearing on the subject treated of in the text. American decisions illustrating points discussed in
Sir,—The question of Colonel Duncan, M.P., which was answered the digested cases are given in these notes, which reminds us of by the Attorney-General on the 7th inst., again brings prominently the remark once made to us by a learned counsel, now on the bench, before Parliament, suitors, and the legal profession, the propriety that, if he was in want of an argument in a case relating to
of the question which Mr. G. C. T. Bartley, M.P, asked the Attorneymaritime law, he had recourse
to the American reports, and General of the late Government early last year, and which the generally found what he wanted there. The work is a monument Attorney-General said he would take care was submitted to the then of skilfully-directed labour and research, and should be invaluable Lord Chancellor. The question was as follows :-"Whether, having to all who are concerned in questions of maritime law.
regard to the additional powers and responsibility conferred on and vested in the eight chancery taxing masters by order 65 of the Rules
of the Supreme Court, 1883, and the rules of December, 1885, and THE BANKRUPTCY ACT, 1883.
to the fact that the fees earned by them amounted on an average to THE BANKRUPTCY Act, 1883, AND RULES, 1886, &c., AND A Com- salaries and the salaries of their clerks of between £9,000 and £10,000
£32,215 per annum, shewing an annual profit, after payment of their WENTARY THEREON. By His Honour Judge CHALMERS and E. per annum, the Government would take under their consideration HOUGH, Inspector in "Bankruptcy, Board of Trade. SECOND EDITION. Waterlow & Sons (Limited).
the propriety of appointing an additional taxirg master, making
the ninth, thus completing the number contemplated and provided The present edition of this book is a very great improvement on the for by section 5 of 5 & 6 Vict. c. 103 ?"
I have asserted, and, as I considered, proved, the absolute need of collected with care, and their effect stated with accuracy and terseness, an additional chancery taxing master. That need is still as pressing, the cases are given, and if references to all the reports were also given not brought to the notice of the House of Commons the magnitude of