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CASES REPORTED THIS WEEK. ‘of the subjects which are now not essential, because, under the

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system now in force, no matter what marks a candidate may obtain

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The Solicitors’ Jour-nal and Reporter.



LAST WEEK we called attention to two private Bills which had

c been introduced into the House of Lords, with aview to the forma

tion of company trustees——viz., the National Safe Deposit Bill

-and the Securities Insurance and Deposit Corporation Bill. We are informed that both these Bills have now been withdrawn.

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Drums run 1lE.\R1.\‘G of an appeal in Court of Appeal No. 2 on Thursday last week some difliculty was experienced by reason of lherc not being copies of some material documents for the use of all the judges. Lord Justice COTTON said that each of the three Judges ought to have a copy of every material document, so that he might be able to follow the points which were discussed by counsel. Sir HORACE Dsvsr, who was engaged in the ease, said that he understood that the taxing master would not allow the costs of three copies of a document. Lord Justice Corrou said that he had mentioned this matter before. He thought it was a waste of public time for the taxing masters to prevent suitors from F1_1PPlylng those copies which are necessary to enable a case to be disposed of in reasonable time.

his oun issue of the 15th of January we called attention to the " ‘"188 which th_e_Council of the Incorporated Law Society proposed to make in the division of the subjects for the final examination. The “°w_"‘8l1lation, which will come into operation in January, 1888, li_rov1des for the subjects being divided into four heads, instead of

the earlier Act have received judicial interpretation : see Ea:
parte Ca mpbell (5 Ch. 703). Conversely, if the words are altered
in the subsequent Act, the presumption is that they are intended
to. bear different meanings in the two Acts. As an example of
this, let us consider what could be sold under the power of sale
conferred on mortgagees under Lord Cn.ii\*wonrn’s Act (23 & 24
Vict. c. 145, s. ll), now repealed, and by the Conveyancing Act,
1881 (44 & 45 Vict. c. 41, s. 19). The words in Lord Cass-
\von1'u’s Act are, “When any principal money is secured or
charged by deed on any hereditaments of any tenure, or on any
interest therein, the person to whom such money shall for the time
being be payable . . . shall have the following powers
. . . (1) a power to sell . . . the whole or any part of
1/ie properly.” The words in the Conveyancing Act, s. I9, are,
“ A mortgagee, where the mortgage is made by deed, shall . . .
have the following powers . . . (1) u power to sell . . . the
mortgaged property ”; and, (section 21) “ to convey the property
sold for such estate and interest therein as is the subjcct of the
mortgage." It was decided in Hialt v. Ililman (19 W. R. 694)
that, where leascholds were mortgaged by demise, the power of
sale given by Lord CKA.\‘WORTII'S Act enabled the mortgagee to sell
the whole tcrm. On the other hand, it was decided in Re Hobson
and lloicea (mile, p. 254) that the power of sale conferred by the
Conveyancing Act only authorizes the mortgagee to convey the
interest vested in him. Though there has been some doubt on the
point among conveyancers, the more common opinion was in
accordance with the decision in Hobson and Ilowcs (see 2 Key &
Elphinstone’s Prec., p. 2-1; Wolstenholmc & 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
mortgagee to sell and convey any interest ot the mortgagor in the
property which is not conveyed to him, such as the last day of a
term retained by the mortgagor on a mortgage of leaseholds by
demise, or the legal estate retained by the mortgagor where the
mortgage is by way of charge only. There is no difiiculty in
giving the power to sell; any form of words that renders the mean-
ing clear will sutfice. There is, however, some little- difficulty in
givinga power to the assigns of the mortgagee to convey to a pur-
chaser property which is not conveyed to the mortgagee. A power
of attorney, expressed to be irrevocable, may be given under the
Conveyancing Act, 1882, s. 8, to the mortgagee to convey to a
purchaser. This is certainly good so long as both mortgagor and
mortgagee are alive, but there is a serious doubt whether a convey-
ance, after the death of the mortgagor, under the power, will
defeat the right of his heir, and it possibly ceases to operate on
the death of the mortgagee (see 2 Key & Elph. Prec. 33 ; contra,
Wolstenholme & Turner Conv. Act, 70).

VVE iisronr elsewhere a county court decision on what, so far

X-_9B 8t present. According to the old system, only common law, as we know, is a new point under the Agricultural Holdings Act, “lultfi and conveyancing were essential, and a candidate necd not 1883. Section 44 of that Act prohibits a distress for rent which “lie “P the other three subjects. Under the new regulation no became due more than one year before the distress; but provides "1'1_e_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 him t
‘° Pa", but it will not matterin which of the subjects the candidate t
pets the necessary marks. Some idea, however, may he gathered
i‘§,tt° the "&1_11eto be attached to each paper from the fact that
‘J_hee:h(_]l1eStlOl]B will be set in conveyancing and fifteen in equity.
M: "ii paper will contain fifteen questions also, eleven in
(uen Elf. and four in bankruptcy. _ In the fourth paper, six
{lo cri°{1Bnll be devoted to_ probate, divorce, and admiralty, six
em1ee'lP111:§ law and proceedings before _magistrates, and three to

as i as ica law. This arrangement will give a greater chance of
P Q "8 $0 Candidates who possess a special knowledge of any one

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he landlord and tenant, the payment of the rent has been allowed o be deferred until the expiration of a quarter of a year or halt a year after the date at which such rent legally became due. then, for flu: purpose of this section, the rent ct such holdmg shall be deemed to have become due at the expiration of such quarter or half-year as aforesaid, as the case may be. and not at the date at which it legally became due.” In .Fairla1nb v. Beaumont a distress wasmade, on the 28th of December, 1886, by the landlord of aholding to which the Act applies, for three half-years’ rent in arrear. hTh¢; first of these half-years’ rent was M51115’ due °n file Ht fig

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ordinary course of dealing, the payment of rent was deferred until the expiration of half a year; consequently, for the purposes of section 4-1, the first half-year’s rent was to be deemed to have become due in May, 1886, and there was no dispute that the landlord was entitled to distrain for the first two half-years’ rent. The question was whether he could distrain for the last half-year's rent, legally due on the llth of November, 1886 ; it being contended for the tenant that the effect of the proviso above quoted is that, in all cases of rent deferred according to the ordinary course of dealing, the rent is to be deemed, for the purpose of a distress, to become due at the expiration of the deferred period, and not at the date at which it legally becomes due. The learned county court judge refused to construe the proviso in this way, and we think he was right in his decision, though we do not find very clearly indicated in his judgment the true reason for his construction. It appears to us that the contention of the tenant overlooked the important words of the proviso: “for the purpose of this section 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 a year before the distress. For the purpose, therefore, of rent legally due more than a year before the distress, but for no other purpose, the right to distrain is to be regulated by the time of deferred payment. There are no words in the section providing that the landlord shall in no case recover by distress more than a year’s rent. The proviso is introduced by way of exception to the previous restriction on the landlord’s legal right of distress; and it appears to us that it would be contrary to all rules of construction to extract from it :1 further cutting down of the landlord’s rights.

THE ossn of The Great Western Railway Co. v. MacCartliy, 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 respect of animals or goods delivered to them for carriage. The principles upon which the House of Lords decided the case had already been well settled, the only question being as to their application. The condition in question appears to have freed the company from all responsibility in respect of cattle delivered to them for carriage, except when the damage or loss was caused by the wilful misconduct of the company’s servants It is quite clear, since Manchester, Sheflielzl, am! Lincalzzslzz)-0 1i’aiIzcn_»/ Co. v. Brown (8 App. Cas. 733), that such a condition, or eyen a much more stringent one, is reasonable, if a reasonable alternative is given. If the company are willing and offer to carry for a reasonable remuneration, upon the ordinary legal liability, whatever it may be, whether that of a common carrier or of a bailec for reward, then they may carry on any terms they like to impose for a lower rate. In the case in question the House of Lords were of opinion that an alternative had been given within this principle, inasmuch as it appeared that the company did hold themselves out as willing to carry, on their ordinary legal liability, at a rate less than the maximum rate authorized by their Acts, but ten per cent. greater than the reduced or owners’ risk rate. It was contended that this rate, though authorized by the statute, must be considered an unreasonable alternative, on the ground that the two rates must be reasonable inter ae, or, in other words, that the alternatives offered would cease to be reasonable whenever the reduced rate was so small as to induce all senders to accept it. Their lordships held that a rate authorized by statute must be presumed to be reasonable, and, therefore, the case fell within the general principle before-mentioned. It was suggested that certain matters contained in the company’s notices with regard to the carriage of cattle amounted to a qualification of their ordinary liability as carriers in cases where the higher rate was paid, and so the condition was made unreasonable but on the construction of the language of the notice, it was held that thi was _not so. The _case does not seem to establish an novel plpinciple. Tl18_fi!81ll point of practical importance seemli to be

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drawing attention to the reason for the decisi0n—viz., that there

did not appear to be any legal duty imposed on any persons to keep such registers. We assumed that the decision of the court that the registers were inadmissible because it was not proved that such legal duty existed, must have proceeded upon evidence of experts in Scotch law that thcre was nothing to shew any such duty; but we have since learned that the expert who was called at the trial before Mr. J usticc STEPHEN admitted that he was not acquainted with this branch of Scotch law, and simply referred the judge to a book on evidence, without expressing any opinion whether the law as therein stated was correct. The decision of the Court of Appeal refusing to admit Scotch registers in evidence must, therefore, be taken to mean only that in the absence of evidence that they were kept in fulfilment of a legal duty they are not admissible. It is possible that some expert, more fauuhar with this branch of Scotch law, may hereafter testify that there is such a legal duty.


Tnsna IS A sronv afloat that in a recent legal examination the candidates were asked, amongst other things, to give the meaning of reditus nigr-1', and to explhin the origin of the rights of property. The first of these questions seems to have lain beyond the range of reading of most of them; but some ingenious young gentlemen conjectured that it indicated an ancient fugitive slave law, or that it corresponded with the operation known in the present day as levying black mail. The second of these questions was doubtless within the range of reading of most of the candidates, but 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."

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Tnaar. appears to be some misapprehension as to the exact scope und effect of the Bill recently presented to the House of Lords by the Lord Chancellor for the purpose of amending the Appellate Jurisdiction Act, 1876. The necessity for an amending Act became obvious in November last, when it was found that, as the result of section 8 of the Appellate Jurisdiction Act, 1B16,L9rd Herschell and Lord Bramwell could not take part in the hearing of appeals to the House of Lords during the prorogation of Parliament. This section provides that “the House of Lords may sit and act for the purpose of hearing and determining appeals, and also for the purpose of Lords of Appeal in Ordinary taking their seats and the oaths, during any prorogation of Parliament." The latter part of the section, as if to leave no doubt about the matter, provides that “no business other than the hearing and determination of appeals and the matters connected therewith, and Lords_0f Appeal in Ordinary taking their seats and the oaths as aforesaid, shall be transacted by such House during such prorogation.” Lord Herschell and Lord Bramwell, therefore, not being Lords of Appeal in Ordinary, and not having taken the oaths since the last dissolution, could not take the oaths during the prorogation. The amending Bill remedies the defect by providing (clause 1) that, notwithstanding anything contained in section 8 of the Act of 18751 "GT! Lord of Appeal shall be empowered to take his seat and the oaths at any sitting of the House of Lords during prorogation. ' It is suggested that this amendment does not go far enougnv because no provision is made for the case of a new Lord of APPe"1 in Ordinary taking his seat during a dissolution, or of a Lord Of Appeal who happened not to have taken his seat in the previous Parliament. Section 9, however, of the Act of 1876, which Pm‘ vides for the hearing of appeals during a dissolution, differs \'PY.\' materially from section 8, which provides for the hez1rll1S_ °f appeals during a prorogation. The side-notes of the two sect10l15 are similar, but a careful comparison of the two clauses shew_8 fl very important difference between them. During a p1‘0T°€‘m°"’ under section 8, it is the House of Lords which sits for the pl-"'P°§° of hearing appeals and for the purpose of Lords of APP9l_ "1 Ordinary taking their seats and the oaths. During a dissolution, under section 9, the House of Lords does not sit at 1111, but ha Msiesty ‘MY 9'uth°IiZB the Lords of APPeal, in the name of the House of Lords, to hear and determine appeals. Section 9 l§J91‘°l5' provides for the sitting of the Lords of Appeal during 8 d*"°]“'




tion, and at such sitting no taking of oaths does or can take place.

Section 3 of the amending Bill provides that the Judicial Committee of the Privy Council shall include such members of her llIujesty’s Privy Council as are for the time being holding, or have held, any of the oflices described in the Appellate J urisd.iction Act, 1876, as “high judicial oflices." This provision is supplemented by anew clause, moved by the Lord Chancellor on report, providing that the expression “ high judicial oflice” shall be deemed, (we presume for all the purposes of section 6 of the Appellate Jurisdiction Act, 1876), to include the ofiice of a Lord of Appeal in Ordinary and the oflice of a member of the Judicial Committee of the Privy Council.

With regard to clause 4 of the Bill, which deals with the position of the two retired Indian or colonial judges, it is to be noted that these retired judges will, under the amending Bill, for the first time become members of the Judicial Committee. The 30th section of the Act of l833—the Act for the better administration of Justice in His Majesty’s Privy Council—provided that two members of the Privy Council who have been judges in India or the colonies, and who, being appointed for that purpose, attended the sittings of the Judicial Committee of the Privy Council, should receive the sum of £400 a year during the time they so attended. Clause 4 of the amending Bill specifically provides that any person who attends the sittings of the Judicial Committee of the Privy Council in virtue of the 30th section of the Act of 1833 “ shall be deemed to be included as a member of the said Committee for all purposes." The clause further provides that, if there is only one such person, as is the case at present, he shall be entitled to receive £800 a year for every year during which he so attends; but if at any time there be two such persons they shall be entitled to receive £400 a year apiece. It is not easy to understand the object of this arrangement. The sum of £400 a year was originally intended as an indemnity for the expenses which might be incurred by the retired Indian or Colonial judges during their attendance at the sittings of the Judicial Committee. The arrangement appears only to be defensible on the ground that, when there is only one such judge ll member of the Judicial Committee his “expenses ” are double what they would become if he had a colleague to sit with him. This seems absurd.

_ The new Bill, so far as we have discussed it, professes to do little more than cure defects in previous legislation. Clause 2, however, goes much further than this. The Act of 1876 provided that a Lord of Appeal in Ordinary should be entitled to a writ of summons to attend, and to sit and vote in the House of Lords, during the time that he continued in his oflice as a Lord of Appeal in Ordinary, and no longer. Clause 2 of the Lord Chancellor’s Bill will entitle a Lord of Appeal in Ordinary to sit and vote for his life. Although this section, in so far as it contemplates the creation of life peerages, is an innovation of considerable importance, the great constitutional question, which was involved in the ease of Lord Wensleydale, will not be raised. In 1856 the ministry advised H_'cr Majesty to issue letters patent to Sir James Parke, creating him Baron Wensleydale for life. In the debate which followed Lord Lyndhurst’s proposal to refer this exceptional patent to the Committee of Privileges, it was common ground that the Crown had in former times introduced life-peers to sit in the House of Lords, but that no such case had occurred for upwards of 400 years. The constitutional question at issue, therefore, was, had the ancient prerogative of the Crown been lost by desuetude; or could it be exercised if the Queen thought fit to revive it? The life peerages contemplated by the Lord Chancellor's Bill will, of course, owe their creation, not to the prerogative of the Crown, but to the act of the three estates of the realm. They will, in fact, be created with the consent of the House of Lords itself.


The report of the directors of the Provident Life Otfice, after stating that the proposals for newassurances amounted to £494,930, and that of these 343 were accepted and policies issued for £385,580, and that the total funds of the oflice on the 31st of December were £2,485,955, an increase °‘ £30,164. adds that: “ In view of the great depreciation in the value of freehold and leasehold estates in all parts of the United Kingdom, the directors have felt it their duty to make a careful re-valuation of all the securities of this description held by the otfice; and have come to the conclusion that the sum of £60,000 should be for the present placed to a. °‘“*P°nse account to meet any possible loss that may arise in the realization of assets of this nature."

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IN our last article we treated of covenants made for the purpose
of securing an interest in the land, such as a rent-charge. We
now proceed to the next class of covenants :-

(2) Covsiunrs CONCERNING THE USE or L.\xn.—These we might
describe more correctly as covenants concerning acts to be done, or
not to be done, in connection with the land. The distinction thus
taken between positive and negative covenants is of the utmost
importance, for we shall see that while in neither case does the
burden run with the land at law, yet negative covenants are
enforceable in equity.

(11.) T/re bur-de1i.—This subject was very fully discussed in the
recent case of Ausferberry v. Corporation of Oldlram (1885, 29
Ch. D. 750), and, after a full examination of the cases, the court
was so strongly of opinion that the burden of such a covenant
could never run with the land at law that the matter may be con-
sidered to be practically decided. It was not, however, necessary
for the judgment in the case; this depended also upon whether
the benefit could run, and it was settled that it could not, on the
ground that the covenant did not sutficiently concern the land to
which it was sought to be attached. After putting aside cases
relating to covenants of the first kind—viz., those relating
to an interest in the land, it was found that there were only
two cases which could be considered authorities that the burden
would run with the land. These were Oooke v. Chilcult (1876, 3
Ch. D. 694), decided by Malins, V.C., and Western v. Macdormolt
(1865, 1 Eq. 499), decided by Romilly, M.R. In the first case
H. conveyed land to F., himself retaining adjacent land. F.
covenanted with H. to erect a pump and supply water to houses
on the land so retained by him. By various mesne assignments H.’s
land became vested in C. and F.’s became vested in Ch., who took
with notice of the covenant. Then C. brought an action against
Ch. for breach of it. In his judgment the Vice-Chancellor ex-
pressed the opinion that the covenant ran with the land, but, as
Ch. took with notice, he was able to decide the case on that equit-
able ground alone. Here it is to be noticed that the covenant was
positive, and the judgment could not be supported now even in
equity. Western v. Jllacdermoil, where the covenant was negative
or restrictive, is a better case. Here there were adjoining houses,
Nos. 9 and I0, in Brock-street, Bath. The two sites were origin-
ally conveyed by G. to W., who covenanted as to the height of the
buildings to be erected. Then \V. conveyed No. 10 to R. in fee
and N o. 9 to F. in fee. To these conveyances G. was a party, and
both R. and F. covenanted with G. and W. as to the height of
buildings to be erected in the gardens. G. had upon the first con-
veyance secured a rent-charge on the property for. himself. Ulti-
mately N o. 9 became vested in M., No. 10 in Wes., and the rent-
charge issuing out of N o. 9 in T. In accordance with the
original plan the street had been regularly built, and it com-
manded a fine view to the south. In 1864 M. began to build
a circular projection at the back of No. 9 of such a height as
to be in violation of the covenant, and T., the owner of the rent-
charge, and so, practically, the representative of the original
covenantec, assented. W., the owner of No. 10, then brought an
action against him. Romilly, M.R., considered that the burden of
the covenant was one that ran with the land, and that, _as_ the benefit
of it descended to the successive owners of the adjoining land, it
was out of T.'s power to release it. The case went to the Court
of Appeal (2 Ch. 72), but here, again, so far as our point is
concerned, the decision was unsatisfactory. Lord Chelmsford, L.C.,
found himself relieved from considering the matter at law, because
there was no doubt that the plaintiif could have an injunction in
equity, the defendant having purchased his house with notice of
the covenant. _ _ _

In these cases the plaintifi had a good right in equity, and so the
question at law was shelved. It was necessary to have one in which
there was no claim in equity in order that the question of the legal
right might be raised and authoritatively discussed. This was so in
A usterberry v. Corporation of Old/ram. A. was one of several owners
who conveyed land to trustees for the purpose of making a road-
The trustees covenanted with_A. and the other owners to keep dthe
road in repair, to let the public use it on payment of ii toll, 8" 9°
let A. and the others and their assigns usc_ it free _of charge. A-
retained land adjacent to the road on both sides of it. The matter

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was complicated by the fact that the Corporation of Oldham took over the road under statutory powers, but, so far as the present question is concerned, this may be treated as an assignment of the road to C. A. had assigned his remaining land to B. The point to be determined, therefore, was whether the burden of the covenant ran so as to bind C., and the benefit so as to belong to B. Judgments were delivered by Cotton, Lindley, and Frv, LJJ. The benefit was dealt with very fully by Cotton, L.J. With that we are not now concerned, Lindley, L.J., took up the question of the burden, and Fry, L.J., agreed with him. As we have said, the cases were carefully examined, and the former judge. after discussing Coohc v. Ghilcott and Western v. Macdermott, concluded as follows :—

“ I am not aware of any other case which either shews, or appears to shew, that a burden such as this can be annexed to land by a mere covenant such as we have got here; and in the absence of authority it appears to me that we shall be perfictly warranted in saying that the burden of this covenant does not run with the land. After all, it is a more personal covenant. If the parties had intended to charge this land for ever, into whosesoaver hands it came, with the burden qfrepairinq the road, there are ways and means known to conveyancero by which it could be done with comparative ease; all that would have been necessary would have been to create a rent-charge and charge it on the tolls, and the thing would have been done. They have not done anything of the sort, and, therefore, it seems to me to shew that they did not intend to have a covenant which should run with the land. That disposes of the part of the case which is, perhaps, the most diflicult.”

S0, too, Fry, L.J.

“ Upon the point whether the burden of the covenant ran with the land of the covenantors, I am clearly of opinion that it did not so run; and I share the doubt which has been expressed by my learned brothers whether in any case, except that of landlord and tenant, the burden of covenants of this description does ever run with the land.”

This being so, we may safely assume that a burden of this kind never runs with the land at law, and it only remains to consider how the question is treated in equity.

The most important of the early cases is Keppell v. Bailsy (183-L, 2 My. & K. 517) before Lord Brougham, C. There certain landowners and owners of ironworks, and, among others, the lessees of the _B. Ironworks, formed a joint-stock company to construct a railway connecting a lime quarry with the several ironworks; and in the partnership deed the lessees of the B. Works covenanted for themselves and their assigns, with the other shareholders, to procure all the limestone used in the ironworks froni_thc quarry. The lessees assigned to C., who took with notice. C. _violated the _covenant, and the other shareholders brought an action against him. _ He, on his side, objected to the covenant as tending t0_a perpetuity, and as being in restraint of trade. The former point we _shall consider later; the latter was overruled, as the restraint was only partial. But the chief questions were whether the covenant ran with the land at law, or, failing that, whether it could be upheld on th_e ground of notice. \Ve need not go into the first of these again, but the judgment is useful as containing a commentary on all the cases from the I’/-ior’s case downwards. It was also seen that, if a covenant like this was allowed to _run with the land, then it would be posgiblg to burden houses with the most inconvenient obligations ; a purchaser {night covenant that only a particular trade should be carried on in the house, and this would bind it in the hands of his assigns for ever. It is true the covenant in Tate-m v. Chaplin (1793 2 H. Bl. 133) that a lessee should reside in the house was held to bind his assigns, though not named, but this was the case of o. lease and depended on the privity of estate between the lessee and the reversioner.

It is more im ortant however to consid ' ' Lord Bronghampapproabhed the question (fir lzllliilclianlllllilr ldlonlzillileciil ing the matter at law, he had been struck, as we have 'ust remarked, by the unusual nature of the service required and Jth inconvenience that would follow if “incidents of o. novel 1;; 3

could be devised and attached to propertv at thc fanc or 'u of any_ owner.” As bearing on the generlal question the folldiivliliie

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real property, and to impress upon their lands and tenements a peculiar character, which should follow them Hllfl all hands,‘ how. ever remote.”

The same idea was uppermost in the Chancellor’s mind when he came to the question of notice. Could an assignee be bound by any kind of covenant, no matter how strange to the law? This question he answered decidedly in the negative. But, though the some result would be arrived at now, it would be in a different manner, and the doctrine of notice has been more clearly worked out.

The first good case on the subject appears to be Whatman v. Gibson (1838, 9 Sim. 196), but this is not the leading case, and we shall have to refer to it again for another purpose. The doctrine was certainly not settled in 1844. The question then arose in the case of Bristow v. Wood (1 Collyer, 480). B. sold one plot of laud to J ., retaining the adjacent one, and B. and J . entered into mutual covenants as to the value of buildings to be erected, and as to the use of the land. B. then agreed to sell the plot he had retained to W., who, at the time of the agreement, had no notice of the covenant. Afterwards he discovered it, and refused to complete. Knight-Bruce, V.C., considered that the question as to whether the covenant would bind W. was of too doubtful a nature for him to be compelled to accept the title.

The first leading case is Tulk v. Jllozliay (1848, 2 Ph. 774) before Lord Cottenham, C. A., who was the owner of the vacant piece oi ground in Leicester-square, conveyed it to B., who covenanted for himself and his assigns to preserve it in an open state as a pleasure ground. A. was also the owner of some houses in the square. B. subsequently conveyed to C., whose deed had no covenant, but who had notice of the original one. Upon C. proceeding to violate it, A., who had retained his houses, prayed for an injunction against him. The judgment was decisive as to the equitable right being quite distinct from the question of whether the covenant ran with the land at law.

“ It is said that the covenant being one which does not run with the land, this court cannot enforce it; but the question is, not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract ontered into by his vendor, and with notice of which he purchased."

This was followed in Wilson v. Hart (1866, 1 Ch. 463), where a yearly tenant under a person claiming through the original eovenantor was held to be bound on the ground that he had notice. The case is interesting too for the doubt displayed by the jlldgefii Sir G. J. Turner and Sir J. L. Knight-Bruce, L.JJ., as to Whether the covenant ran with the land at law. The former denied it. because assigns were not mentioned ; the latter expressly withheld his opinion and relied solely on the equity.

The second leading case, and the one which has for the prefiellt completed the doctrine, is Hayzvood v. Brunswick Permarwrli Benefit Building Society (1881, 8 Q. B. D. 403). C. J. conveyed land to E. J. in fee, reserving u rent of £11, and E. J. (ovens!-iied to pay the rent and to erect and repair buildings. By various inesne assignments the land ultimately became vested in the buildmg 5°°1°tY 85 flloftgagees, and they took possession. The question arose whether they were liable on the covenant to repair. Ultimately the matter came before the Court of Appeal, consisting Oi Brett, Cotton, and Lindley, LU. A good deal was said as to the covenant not running with the land at law, but that docs not concern us. Of the utmost importance, however, is the distinction drawn as to the rule in Tulk v. flloa-hay, and it was laid down that this only applied to restrictive covenants. Both in that case and in

lVilson v. Hart the covenants which were sought to be euiolced were of such a. nature. Formerly indeed, this was unavoidable, because the court had no mandatorly injunction at its disposfili bi the same holds good now because the principle will not be stretched. As was said by Cotton, L.J. :-—“ The covenant to repair can onl.'/ bf ‘f"f‘"‘¢BIl by niahing the owner put his hand into his pocket, and thfirfi is nothing which would justify us in going that length.”

This distinction was acted on in Austerberry v. Uorporation Of Ol'””""' (-Wprri), and it was because there was no equitable right on the covenant there, that the court went as we have seen, 5° fun)’ int) the legal question. These two caises, with Tull: v. JIMIl.”-?have now P"-°ti°aHY Bettled the question in a clear and 0°11


sistent manner.




I EMDEN, E:sq., Barrister-at-Law, assisted by HERBERT THOMPSON, Esq , Barrister-at-Law. Stevens & Haynes.

A new edition within less than two years of this bulky book appears to indicate a somewhat unusual success, and, indeed, a work supplying the place of a small library of practice statutes, orders, and rs es ought be welcome to practitioners. The legislation and orders up to last autumn comingwithin the scopeofthebook havebeen added, so far as we have observed, with care and accuracy. The Crown Ofiice Rules, 1886, are too voluminous and too special intheir application to be mserted bodily, but such of them as affect the Supreme Court Rules are given. The valuable collection of cases under distinctive headings has been largely increased ; according to the preface nearly 2,000 cases have been added. The value of the book to the practitioner may be best illustrated by taking the mode of treatment of such an Act as the_ Infants’ Settlement Act (18 & 19 Vict. c. 43), which h-is recently come mtc prominence. At pp. 324. and 325 the reader will find the Act set out, with notes containing references to other statutes and to rules of court bearing on the subject, to authorities on the procedure, and to the cases which have been decided on the sections, arranged under short but sufiiciently distinctive headings. The 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 of or references to all the law and authorities on the subject. The present edition, on the points with regard to which we have tested it, displa‘ys_the same care and industry which we remarked in the former e ition. We would suggest that the double references at the tops of the margins to statutes should be abolished and a reference in heavy type to the Act on the page only should be given.


Piiirciiiiiufs DIGEST or ADMIRALTY AND MARITIME Law. THIRD EDITION. By JAMES C. HANNEN, Barrister-at-Law, and W. TARN PRITOHABD. INCLUDING Cases on AVERAGE, CARRIAGE or Goons, AXD M.iai.~iE INSURANCE. By J . P. Asrmsnn and GORDON Siiirn, Bari-isters-at-Law, and W. BENNING PRITCHARD, Solicitor. Wirn NOTES or CAsEs on FRENCH AND OTHER FOREIGN Law. By ALGERNON JONES, French Advocate, and other Foreign J urists. Two VoI.s. Butterworths.

The above title shews the large addition which has been made in this edition to the scope of Mr. Pritchard’s work. The book now covers the whole subject of maritime law, and embraces not merely English courts and their decisions, but also foreign courts and their mantime jiuisprudence; the decisions of these courts being usually conveniently given at the end of each heading. British courts in foreign countries and colonial courts, colonial legislation on maritime law, and colonial courts and their procedure are also now included m_ the work. And, with regard to subjects coming more near to the °1'{E"1al scope of the book, the legislation relating to unseaworthy 9l11Qs_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 have foimd evidence, in the references and remarks in the foot- notes to the pages, of anxious care to place before the reader a statelllept of or reference to everything bearing on the subject treated Of In the text. American decisions illustrating points discussed in the digested cases are given in these notes, which reminds us of the remark once made to us by a learned counsel, now on the bench, that, _if he was in want of an argument in a case relating to manhme law. he had recourse to the American reports. and generally found what he wanted there. The work is ii monument Of slnlfully-directed labour and research, and should be invaluable to all who are concerned in questions of maritime law.

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and a rather wider range of selection of cases adopted, it would be dithcult to suggest any improvement inthe execution of the authors’ design of furnishing a practical guide to the Act and Rules. We are boimd to say that for this purpose, as distinguished from a treatise on the law of bankruptcy, we do not know a more useful book. The notes we have consulted, in using the work in practice, we have found accurate, practical, and suggestive. They contain ample crossreferences to sections and rules, and, it need hardly be said, have the wholesome flavour of thorough -familiarity with the subjectmatter. The authors are naturally cautious in expressions of opinion —perhaps here and there to excess—and this is, no doubt, one of the disadvantages of what we may call oflicial authorship; but their book is, nevertheless, one of great value to the practitioner.

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Tris Fosii or Bums or SALE GIVEN AS BEcur.i'rv FOR MONEY. By STANLEY BUCKMASTER, Barrister-at-Law. Waterlow & Sons (Limited).

This little book appears to be accurate, and will be very useful to the practitioner. After a somewhat careful examination we have not been able to detect any misleading blunder. This is,and we intend it-to be, very high praise. With commendable courage the author has given a collection of precedents; time alone will shew whether he has escaped the many pitfalls in the way of the draftsman, but as he has, in almost every case, giien the authority for the clause that he proposes, he has done all that is in his power to insure safety. The prudent draftsman, however, will always follow the suggestion of the author and refer to the discussion in the text rather than trust to the authorities given for the clauses. For example, in the note to the covenant to insure at p. 24, the only authority cited is Goldstrom v. Tallerman, an authority which is hardly sufficient to shew that the clause is safe, while at p. 16 all the authorities are collected. The only blots in this book are that the proofs have not been corrected with sufiicient care, and that the index is not suificiently full; but these are small matters considering the substantial merits of the work.


THE SUMMARY Junisnicriozv Acrs, 1848-188-2. By W. CUNNING-
HAM GLEW, Barrister-at-Law. Sixrn Enrriox. By ARCHIBALD
HENRY BODKIN, Barrister-at-Law, and CECIL G1-zones DOUGLAS,
Chief Clerk, Guildhall Justice Room, London. Shaw & Sons.

Mr. Glen’s well-known collection of statutes and rules has been rearranged by the editors. The three parts into which the work is now divided—viz., (1) Acts, Rules, and Forms dealing exclusively with the procedure in relation to summary convictions and orders; (_Z) the Acts prescribing the duties of courts of summary jurisdiction in committing persons accused of indictable offences; aud_ (3) an appendix containing miscellaneous statutes relating to justices and their elerks—appear to be convenient. The recent cases have been added, and notes are now appended to the Act of 1884, in one of which we find an opinion of the law oflicers on the meaning of section 7. The rules of 1886, however, appear without comment.

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Six-,—The question of Colonel Duncan, M.P., which was answered by the Attomey-General on the 7th inst., again brings prominently before Parliament, suitors, and the legal profession, the propriety of the question which Mr. G. C. T. Bartley, M.P , asked the AttorneyGencral of the lat/e Government early last year, and which the Attorney-General said he would take care was submitted to the then Lord Chancellor. The question was as follows _:f-“ Whether, having 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, 1.885, and to the fact that the fees earned by them amounted on an average { £32,215 per anuum, shewing an annual profit, after payment of their salaries and the salaries of their clerks of between £9,000 and £10,000 per annum, the Government would take under their consideration the propriety of appointing an additional taxing master, making the ninth, _thus completing the number contemplated and provided for by section 5 of 5 & 6 Vict. c._103? d f

I have asserted, and, as I considered, proved, the absolute nee_ 0 an additional chancery taxing master. That need is still as pressing, or, more pressing, than ever. The question of Colonel Diincni. has


not brought to the notice of the House of Commons the magnitude 01

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