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where this is so, there is little difficulty in enforcing the covenants COVENANTS RUNNING WITH THE LAND. relating to it. Such general plan though is, of course, not essen(II.) COVENANTS IN GENERAL (concluded).

tial. Thus in Mann v. Stephens (1846, 15 Sim. 377) the In dealing with covenants relating to the use of land, we have covenant related to two adjacent plots only, but it was equally thus discussed thoroughly the manner in which the burden of them binding on the ground of notice. But where there is a general may be made binding on successive owners. We shall now, as

plan, and each purchaser in turn binds himself, this is in itself a before, take up the benefit of the covenant, and see in the same

reason why he should have the benefit of the vendor's covenant as manner how it can be annexed to the land.

against the rest, and so it was held in Child v. Douglas (1854, Kay, (6.) The benefit.—It frequently happens that a vendor of land 560). But the whole matter was discussed and the cases carewishes to obtain some advantage for other land which he retains. fully examined in Keates v. Lyon (1869, 5 Ch. 218). There A. The main point to be considered here is that such benefit must be conveyed land to B., who covenanted as to the nature and value really connected with the land retained, as the vendor cannot of the buildings to be erected. There was no general building create rights unconnected with the use or enjoyment of it, and plan, but A. conveyed other plots to C. and D. C. and D. were not annex them to it. This was decided in Ackroyd v. Smith (1850, bought back the land from B.; and C. and D. sought to maintain

shewn to have entered into any covenants. Subsequently A. 10 C. B. 164). There, upon the conveyance of lands to A., a that it was still charged in the hands of A. with the burden of the right of way not connected with the use of them was given to him.

A. assigned to B., who claimed the right of way, but covenant for their benefit. The court, after referring to the inwithout success.

It was said by Cresswell, J., that, as a covenant fluence of Tulk v. Moxhay on the burden of covenants, said:for such a right would not run with the land, not being incident the benefit of covenants of this kind have been decided

The questions which have arisen with respect to the devolution of


similar to it, so the right itself could not be annexed. In this case the benefit was given to the purchaser, but the principle is, of course, tions depending on the covenants running or not running with the

principles, and equally without reference to any technical distincthe same where it is secured by the vendor. So, again, in Bailey v. Stephens (1862, 12 C. B. N. S. 91), it was laid down by Willes,

land." J., that, for a benefit to run with land, it must be a benefit to the

Then, after examining Whatman v. Gibson, Coles v. Sims, and owner as owner of the land. And in Ellis v. Mayor of Bridg- Western v. MacDermott (1 Eq. 499), Selwyn, L.J., proceeded to north (1863, 15 C. B. N. S. 52) these two cases were quoted and say: followed. There a prescriptive right was set up to have free stalls In all these cases the judgment of the court is based ироп

clear in the market-place opposite certain houses adjoining it, and it was evidence of intention and contract, supported by mutual covenants, held that this benefit was sufficiently connected with the houses to and relating to a particular and defined portion of land agreed to be run with them. But, as we have already remarked, the point laid out and dealt with according to a prescribed plan.was made the subject of special examination by Cotton, L.J.,

In Mann v. Stephens there was indeed no general plan, but there in Austerberry v. Corporation of Oldham (1885, 29 Ch. D. 776) were, at least, covenants by each purchaser. But in the case in In that case it was held that the benefit of the covenant did not question neither of these elements was present, and the court said run because it was not closely enough connected with the land, that the contention that the benefit of the covenant is, as of course, though Fry, L.J., was not altogether satisfied on the point. attached to the land, is unsupported either by principle or

It seems, however, that a rendor does not annex the benefit of a authority, and would greatly interfere with the free alienation of covenant to land by merely entering into it. It may indeed be of landed estates. Thus it appears that it is comparatively easy to importance to himself alone, and there is good authority for saying make the benefit of covenants run with different plots where there that a purchaser does not take it unless he has notice of it, and is a general plan of building; but otherwise it is necessary, either unless it really forms part of the subject-matter of his purchase. that the purchaser should have had notice of the covenant and This was laid down by Hall, V.C., in Renals v. Cowlishaw (1878, made its benefit part of the subject-matter of his purchase, or that 26 W. R. 754). It is to be noticed, too, that the matter does he should have bound himself by a similar covenant. Of course not now depend upon the form of the covenant-.e., whether the plan of building must be actually fixed at the commencement, assigns are mentioned or no; for by the Conveyancing Act, 8. 58, it but in Schreiber v. Creed (1839, 10°Sim. 9) it was to be subject to is provided that a covenant relating to land of inheritance shall be alteration by the vendor; hence the original purchasers who had deemed to be made with the covenantee, his heirs and assigns, and covenanted in accordance with it had no remedy when the vendor shall have effect as if heirs and assigns were expressed.

afterwards sold other plots subject to different covenants. But the most important cases at present, both as regards the benefit It must not be supposed, however, that covenants will be enand the burden of the covenant, are those in which an estate is laid forced in equity regardless of change of circumstances. It was; out for building, and the purchasers of the several plots are bound indeed, pointed out by the Real Property Commissioners (Third by certain common rules and restrictions. The doctrine of notice has Report, p. 55) that one great advantage of leaving covenants made it easy to secure the uniformity required. Thus in What- entirely to equity lay in the elasticity with which equity could man v. Gibson (1838, 9 Sim. 196), A., upon the sale of his estate treat them, an elasticity not possible if they ran with the land at in lots, made it a preliminary condition that each purchaser should law. The court might thus refuse to enforce them when change observe certain stipulations, and there was a covenant in a deed to of circumstances or considerations of public policy made it be executed by A. and all the purchasers that none of them should desirable. A good instance of this is afforded by Duke of Bedford be an innkeeper. B. and c. were two such purchasers who v. Trustees of British Museum (1822, 2 My. & K. 552), where the executed the deed. B. assigned to W. and C. to G., who took with trustees were allowed to build in violation of the original covenant, notice. This was before Tulk v. Moxhay, but Sir Lancelot Shad- inasmuch as the successors of the covenantee had themselves well, V.C., had no difficulty in holding that the agreement, though permitted the character of the rest of the estate to be altered. At personal to the parties executing the deed, was nevertheless any rate, Lord Eldon, who called to his assistance Sir T. Plumer, binding on all coming in with notice. So in Coles v. Sime (1853, M.R., declined to interfere, and left the Duke to his remedy at Kay, 56, 5 D. M. & G. 1), in the original agreements with law. builders a certain covenant was entered into, and somewhat elaborate machinery was designed for making it binding in the sub- with regard to covenants for title, we have, of course, only to

(3.) Covenants for title and for the production of title deeds.-sequent conveyances ; bnt it was held binding between assigns consider the benefit of the covenant as running with the land sold. from the original purchasers merely by force of the agreement of There is no question of the burden binding any land which the 398) is an instructive case of the same kind. A. laid his estate estate, real or personal. But, so far as the benefit is concerned covenanted to have no other on the estate. Lotoy. he let to "c., who have been waid down for covenants at law generally—that is, it covenanted not to use it for the sale of beer, "&c. Subsequently runs on the ground of "privity of estate. This was settled fin the reversion in lot y. came to K., who purchased c.'s lease and Middlemore v. Gondale (1639, Ero. Car. 503). There G. enfeoffe. began to build a public-house. But he had notice of C.'s covenant J. S., and covenanted for further assurance. and was bound by it. In the above cases there was a general plan of building, and, but it was held that the covenant ran with the land, and so he was

who requested G. for further assurance to levy a fine. G. refused,




bound. The fact that this was based on privity of estate was general education on which to build future acquisitions of legal and brought out in Campbell v. Lewis (1820, 3 B. & Ald. 392). A., other knowledge. It was also necessary that something should be a lessee, assigned bis term to B., and covenanted for quiet enjoy- done towards the education of solicitors in general knowledge for ment. B. assigned to C., who was evicted by the lessor for a breach the purpose of maintaining their position among the learned profes

sions. of covenant committed by A. The court had no doubt that C.

In 1846 a Select Committee of the House of Commons was took the benefit of B.'s covenant on the ground of privity. The only point, then, to be noticed is, that special provision is the inquiry was afterwards extended to England. The committee in

appointed to inquire into the state of legal education in Ireland, and made by the Conveyancing Act in respect to covenants for title their report, among other things, recommended that, in providing implied under that Act. It is enacted in section 7 (6) that the for the special education of a solicitor, a stringent examination should benefit of such covenants shall be annexed and incident to, and be required in general knowledge previous to admission to apprenticeshall go with, the estate or interest of the implied covenantee, and ship—that this examination should embrace, in addition to the shall be capable of being enforced by every person in whom that ordinary acquirements of the so called “commercial education," a estate or interest is, for the whole or any part thereof, from time competent knowledge of Latin, geography, history, the elements of

mathematics and ethics, and one or more of the modern languages. to time vested. The effect of this is to do away with the necessity

No steps appear to have been taken in pursuance of this recomfor privity of estate between the original covenanting parties; but mendation until 1854, when the Council of the Law Society urged it must be noticed that the covenant is made to run only with the upon the authorities the necessity for establishing a preliminary estate of the covenantee, and so a door is left open for the subtleties examination, and they did not cease their exertions in that direction of privity of estate between successive assignees. This subject was until the Solicitors Act, 1860, was passed, which provided for the treated of in our third article, and it was there seen that, to insure holding of preliminary examinations. With certain exceptions, all safety, a covenant should be entered into with the grantee to uses, persons are required to pass this examination prior to entering into idasmuch as the benefit would be attached to each use as it came

articles of clerkship. The exceptions referred to were made in favour into existence. But this is, in fact, the case with the implied tions. Certain judges were also authorized to exempt, either wholly

of persors who had passed various university and other examinacovenants in question. It is provided by section 7 (1) that they or partially, from the examination, or subject to any conditions shall be deemed to be made with the person to whom the convey- they might think fit to impose. The Act also contained a provision ance is made, and upon a conveyance to uses this is the grantee to to the effect that certain persons who had been clerks to solicitors

for ten years might enter into articles for three years. It seems to As to covenants to produce title deeds, on the other hand, these have been a popular delusion that such persons were, as of right, only apply where a vendor retains land in his hands, or where, entitled to exemption from the preliminary examination, and this upon a sale of the same estate in lots, the deeds are handed over dispensing orders to all persons who applied to him for them, and it

idea was fostered by the late Chief Baron Kelly, who granted to one among several purchasers. The question as to whether the is a well-known fact that numbers of clerks have walked about for burden of covenants of this description runs with the land in the years, with orders in their pockets, seeking for solicitors to give hands of alienees has been a vexed one. Lord St. Leonards con- them articles. Since the death of the Chief Baron this delusion has cludes his discussion of the subject by strongly advocating that it nearly died out, and it is now generally understood that orders for should, upon the ground, chiefly, that, as the deeds are attached to exemption will not be granted unless the applicant has passed some the land as a benefit, so it is not unreasonable that the burden examination fairly equivalent to the preliminary; but in special of the covenant to produce them, at the request of the other circumstances orders are made allowing the applicants to enter into parties interested, should be attached to the land also. But

articles at once on condition of passing the examination within a with this, as with other covenants, the matter has ceased to given period – generally twelve months – but the articles are not be

enrolled or registered until the clerk has passed the preliminary very material, for, even if the covenant should not run with the examination. There is no objection to orders of this kind, as they land at law, yet there is no doubt that the successors in title of secure what is required-viz., that a person should, before he is the purchaser would have a right in equity to enforce the produc- admitted as a solicitor, possess, at all events, moderate acquainttion of the deeds against persons claiming and holding them through ance with the subjects required for the preliminary examination. In the vendor. The Conveyancing Act, too, has here introduced a no other profession are persons allowed to enter by a back-door, and very useful reform by substituting for the old covenants an

there seems to be no reason for an exception being made in the case acknowledgment of the right of production and an undertaking for of solicitors. The business of a solicitor brings him in contact with safe custody of documents. The exact nature of such acknow- it is essential that he should be able to comport himself as a gentle

all classes of the community, and in his intercourse with his clients ledgment and undertaking, and the liabilities incident thereto, are

man, but the chances are greatly against his being able to do this very carefully defined in section 9, and we need not here reproduce unless he has had a good general education. them. The general effect, however, is to make the legal right It should not be forgotten that there are various examinations to production co-extensive with the equitable right. Also the which, under statutory provisions, exempt from the preliminary. properly partiag with the documents, and his obligations are therefore, that it is comparatively useless to raise the standard of transferred to each subsequent possessor, but for the period only of the preliminary examination, unless the standard of those examinahis possession (Wolstenholme & Turner Conv. Act, note to s. 9). would be great difficulty about this, and the only other course is to The manner in which this matter has been settled may well arouse Tegret that the many other vexed points with respect to covenants

obtain the repeal of the provisions under which these examinations

are accepted in lieu of the preliminary examination. The general to which we have referred could not have been settled at the same exemptions should be confined to the matriculation examinations at

the universities.

As the Acts of Parliament stand, there is nothing whatever to shew what the subjects required for these examinations were when

the Acts were passed, or whether the standard is higher or lower THE SOLICITORS' PRELIMINARY EXAMINATION.

now than it was then, and so long as the authorities who conduct At the recent general meeting of the Incorporated Law Society the them it is believed that the Law Society cannot go behind such cer

them choose to give certificates to candidates that they have passed President stated that the council had made certain alterations in the tificates, though the standard of the examinations may have been the ti of raising its standard, but, as the regulations were then before suche nas contingeney as this, although the probability of its arising the judges, he was unable to enter into details. We have not as yet may be remote. heard whether the judges have dissented from the proposed alterations, or what their precise nature is. Pending an official announcement to this effect, it may not be uninteresting to give a short account of the preliminary examination.

Up to the year 1860 no examination previous to articles was wersary, and no particular amount of knowledge of any description all the candidates at the late general election, together with the details

A Blue-book published on Saturday contains a return of the costs of etirely to the choice of the pupil. This was a highly unsatisfactory Practices Act of 1883. The sums given are inclusive of returning officers entirequired, and the course of studies pursued in the office was left af such costs, and in each case the maximum scale allowed by the Corrupt become things, because, in order to emblea hiperon seeking the Charges the summary Shews that the total sum for England and Wales manner, he should, before he enters into articles, possess a good 1 of the legal maximum of £711,075.


notice. But if, as our correspondent supposes, B. had surrendered CORRESPONDENCE.

the lease of y. to C., then, although C. would probably be bound by a

similar actual notice, yet this would only affect the house for the rest TRANSFER OF BEERHOUSE CERTIFICATES.

of the term; the covenant was expressly limited to the residue of the [To the Editor of the Solicitors' Journal.]

existing tenancy of y., and, apart from this, it is clear that no act of

the tenant could bind the house beyond the term. The freeholder of Sir, - While quite agreeing with your article in last week's issue on this subject, will you allow me to point out that transfers are effected y. then, if he chooses to accept a surrender, is no worse off than an under section 4, not section 14, of the Act of 9 Geo. 4, c. 61; section

ordinary assignee. -Ed. S. J.] 14 being that providing for emergencies other than simple transf. rs ? Section 4 expressly enables justices to grant transfers " in the exercise of their discretion,” and this section is one of those by the Act of 1870 made applicable to beerhouses, and it is difficult to see how

CASES OF THE WEEK. anything in the earlier Act (1869) can cut down this provision. As to hardship, too, it would appear by the report of Lord Coleridge's

RICHARDS v. JENKINS, C- A. No. 1, 1st March. judgment in the Blackheath case, that the court was of opinion that

BANKRUPTCY-INTERPLEADER-Execution CREDITOR—Jus TERTII. a licence might be lost at a transfer meeting, but the licence does not lapse by a refusal to transfer, and there is nothing to prevent the Court (Wills and Grantham, JJ.), reported 34 W. R. 739. The defendant

This was an appeal by the plaintiff from the decision of the Divisional licensee taking back the premises or procuring a more eligible transferee, and meantime the justices are bound (apart from the “ four

had recovered judgment against one Williams, upon which execution

was issued, and certain goods in the possession of Williams were seized. grounds ”) to renew the licence to the holder or his representatives, The plaintiff, prior to 1884, had let the goods in question to Williams; and it is submitted, therefore, that there is no such hardship as the but in that year he became bankrupt.

His trustee in bankruptcy did court seemed to contemplate. These latter observations, as well as not know that he had the property in question, and he concealed your own, apply equally, mutatis mutandis, to applications under the fact from his trustee, but continued to receive payment for the hire the 14th section, and appear to bear out your view that the restric- of the goods. Upon the goods being seized he claimed them, and an tions of section 19 of the Act of 1869, as amended by that of 1870, interpleader issue was ordered and was remitted for trial to the county only relate to annual meetings, and not to the intermediate sessions court. The county court judge held that the defendant could not set up

I may mention that the Act 45 & 46 Vict c. 34, referred to at the the title of the plaintiff's trustee in bankruptcy to defeat the plaintiff's close of the article, and which supersedes (as to beer only) section 8 of claim. The Divisional Court reversed this decision on the ground that the Act of 1869, is considered to relate, like that section, to new

the execution creditor, being, primâ facie, in possession, he could shew that licences. Section 19 of the latter Act is not superseded, and the trustee for this purpose.

the plaintiff had no right to the goods, and could set up the title of the words of the former Act are hardly strong enough to apply to renewals.

The COURT (Lord Esher, M. R., Bowen and Fry, L.JJ.), upheld this WALTER SCADDING.

decision, but on other gronnds. Lord ESHER, M.R., said that it was 23, Gordon-street, Gordon-square, W.C., March 1.

incorrect to say that the execution creditor was in possession. The sheriff, upon seizing, was in possession as the officer of the court, and his possession was the possession of the law, and not of either party. The

question to be decided was whether at the moment before the sheriff COVENANTS RUNNING WITH THE LAND.

seized the goods the claimant had any right to them. The right which he [To the Editor of the Solicitors' Journal.]

undoubtedly had at the time he let the goods had passed on his bank.

ruptcy to his trustee. The exection debtor had paid rent to the claimant Sir,- It is with some surprise that I find the writer of the instruc- since the bankruptcy; but that would only create an estoppel as against tive articles under this heading quietly accepting the decision in him and prevent him from saying that the claimant had no title. The Luker v, Dennis. I expected to find him denouncing it energetically. execution creditor did not claim through the execution debtor, but against May I shortly re-state its purport? A. granted a lease to B. of

him by the operation of law, and therefore the estoppel did not affect public-house, and made B. covenant that all beer to be sold in that him, por did the estoppel create any interest in the claimant in the goods. house and also in another house (held on lease by B. from a different appeal 'must be dismissed. — Counsel, R. v; Williams; Glascodine.

He had, therefore, no claim as against the execution creditor, and the landlord) should be bought from A. Mr. Justice Fry held an assignee SOLICITORS, Carter of Church ; Richard White, for J. R. Richards, Swansea. of this other house bound by that covenant.

I really think that a more outrageous straining of the doctrine of notice cannot be made for the purpose of placing burdens upon

THOMAS v. DOUGHTY-C. A. No. 2, 2nd March. Property. The doctrine of notice, invented in Tulk v. Morhay and AppEAL-SECURITY FOR Costs-Costs of IRRELEVANT EVIDENCE–R. S. C., developed by Wilson v. Hart, has come to be applied very much to

1883, LVIII., 15; LXV., 27 (20). the trading covenants relating to beer, and, in spite of the explana This was a motion by the plaintiff that the defendant might be ordered tion repeatedly given that Tulk v. Morhay applies only to restric- to give security for the costs of an appeal, of which he had given notice: tive covenants, it is made to apply where the covenant can by no

The plaintiff adduced evidence to show the inability of the defendant straining of language be deemed restrictive. Let us apply Luker v.

to pay the costs of the appeal, and also to shew that he had carried on that the covenantor surrendered the lease of his other house. Would security to be given, but they disallowed the costs of the plaintiff'ko Dennis to circumstances one step beyond those that existed. Suppose other vexatious litigation against the plaintiff. the freeholder have been bound to all time, or for any time, by the fidavits so far as they related to the alleged vexatious litigation, in which foolish covenant of his tenant ? If not, how can the freeholder be respect they held that the affidavits were irrelevant. —Counsel, Colt ; looked upon as having different rights from those of another Costelloe. SOLICITORS, G. J. Eady; R. D. Teanby. assignee ? But if he is bound, what a monstrous thing it is!

It is a great pity that decisions so unreasonable, inequitable, and THE NORTH CENTRAL WAGON co. v. THE MANCHESTER, vicious stand, owing to the mercy of a poor litigant whose courage or means fall short of the Appeal Court. Your approval makes one


24th February. the less hopeful of getting rid of such a case ; but Mr. Challis, as you RAILWAY COMPANY-LIEN for Tolls-Railways Clauses CONSOLIDATION quote him, shews that there is a possibility that the “absurd lengths” to which the principle of notice has been carried may some

Act, 1845, s. 97. day be dealt with by lights superior to that of Luker v. Dennis, if, ch. D. 499, -30 SOLICITORS" JOURNAL, 337), the question being as to 1313,

This was an appeal from a decision of Bacon, V.C. (34 W. R. 430, 32 indeed, it is not virtually upset by Austerberry v Corporation of construction of section 97 of the Railways Clauses Consolidation Act, 1845 Oldham


which provides that, " If, on demand, any person fail to pay the tolls due 3, Union-court, Old Broad-street, E.C., March 1.

in respect of any carriage or goods, it shall be lawful for the company to

detain and sell such carriage, or all or any part of such goods, or, it the [The object of the articles is to state the law, not to criticize or ap- detaic and seir any other carriages or goods within such premises belongs fied and settled by statute, the Legislature has not yet ventured to mpact from touch bare yo retain the polis payable as aforesaid, and all charges and effect these have had on particular trades may have to be considered moneys arising from such“sale, and such of the carriages or goods to shine It seems clear, however, that the doctrine of Luker consiDerendis remain unso)d, to the person entitled thereto, or it shall be lawful for the (7 Ch. D. 227) would not have the extreme effect which our corres

company to recover any such tolls by action at law." The defendant combriefly, the case was as follows. A., a brewer, let a public-house x.

pany had detained certain wagons, the property of the plaintiff company, lease of z. B. covenanted to get all the beer for%. and y: from A.B.Cror Byredo ezagree nae na tem pa payable quarterly. The plaintiff'ayo, to

under a hiring agreement, claiming a lien on them for tolls due from the assignee of y., would not have been bound hands het not had actual size the dragons and puquanten'a ten the sig greement. The B. Co., whose


demand toll for hauling the wagons, they had not done so. They could feel competent to deal with it, they would no doubt exercise their dis.

301 colliery was connected with the defendant company's railway by a not, therefore, justify the detention of the trucks, simply because there siding, sent coal in the 100 wagons from their colliery over the was no toll due in respect of them. The appeal, therefore, must be siding and on to the railway for transit to their destination, the locomotive allowed. LOPES, L.J., said that when the Railways Clauses Act was power being supplied by the defendant company, who sent their engines passed it seemed to have been contemplated that private owners would not for the purpose on to the siding. The wagons bore the name-plates of only run their own carriages over the railways, but also their own private the plaintiff company and the B. Co. Monthly accounts were sent by the engines. Therefore, it was quite intelligible that the Legislature should railway company to the B. Co., charging against each wagon-load a sum draw a distinction between tolls payable in respect of carriages and tolls for carriage, made up of a charge (authorized by the railway company's payable in respect of goods. He was of opinion that it was a condition special Act) for the use of the line, and an additional charge for the supply precedent, at any rate far as the first part of section 97 was concerned, of locomotive power. In February, 1885, the B. Co. having become that, in order to authorize the company to detain and sell a carriage or insolvent, and the sum of £237 7s. 10d. being claimed by the defendant carriages, the toll in question should be due in respect of a carriage or company as due to them on the monthly accounts, the defendant com- carriages. And, in order to authorize the company to detain and sell pang detained nine of the wagons which were then on their line, claiming carriages under the second part of the section, he was inclined to think ā lien on them for the unpaid balance under section 97. Two quarter's thrt it was also necessary that tolls should be due in respect of carriages. rent being in arrear under the agreement, the plaintiffs also seized ninety- But, at any rate, the railway company failed to justify their right to one of the wagons, which were not on the railway company's line, and detain and sell under the second part of the section, because the carriages brought this action against the railway company for delivery up of the in question did not belong to a party liable to pay toll within the meaning nine wagons which were in their possession. Bacon, V.C., dismissed the of that part of section 97.-COUNSEL, Rigby, Q.C., and Phipson Beale ; action, on the ground that the hiring agreement was a bill of sale, and was Henn Collins, Q.C., and C. 4. Russell. SOLICITORS, Ridsdale & Son ; Cun. void under the Bills of Sale Act, 1882, and also that the defendants were liffes & Davenport. entitled to the lien which they claimed. On the first point the Court of Appeal reversed the decision (ante, p. 124). The appeall was afterwards Re THE TRADE-MARK "NORMAL"-C. A. No. 2, 25th February heard on the other point.

The Court of Appeal (Cotton, LINDLEY, and Lopes, L.JJ.) reversed TRADE-MARK-REGISTRATION—Refusal of COMPTROLLER TO REGISTERthe decision on this point also. Cotton, L.J., said that section 97 was

APPEAL TO High COURT-REFERENCE BY BOARD OF TRADB-PATENTS, divided into two parts. The first part provided that where there was a

DESIGNS, AND TRADE-MARKS ACT, 1883, ss. 62, 90. toll dnei n respect of any carriage or goods, the railway company, before This was an appeal from a decision of Chitty, J. (30 SOLICITORS' JOURNAL, they parted with the carriage or with the goods in respect of which they 688), the question being, whether a person whose application to register a had a right to toll, might demand payment, and it payment of that trade-mark has been refused by the Comptroller of Trade-Marks is entitled toll was not made, then they might detain either the carriage or the to appeal at once to the court, as a person "aggrieved by the omission " goods in respect of which the toll was demandable-that is, before under section 90; or whether, as provided by section 62, the refusal of they left the premises of the railway company or got out of their the Comptroller is subject to appeal to the Board of Trade, whose decision possession. Then the second part of the section provided, “Or, if is to be final, unless the Board shall think fit to refer the appeal the same shall have been removed from the premises of the company, to the court. Section 62 of the Act provides by sub-section 4 that "the to detain and sell any other carriages or goods belonging to the Comptroller may, if he thinks fit, refuse to register a trade-mark; but party liable to pay such tolls.” The defendant company had made a any such refusal shall be subject to appeal to the Board of Trade, who claim in respect of all the journeys on their line performed by these shall, if required, hear the applicant and the Comptroller, and may make particular nine wagons. In his lordship's opinion they could have no an order determining whether, and subject to what conditions, if any, claim except in respect of the tolls, if any, due in respect of those car- registration is to be permitted?” And, by sub-section 5, "The Board of riages during the period for which they had been, without having been Trade may, however, if it appears expedient, refer the appeal to the removed, in the possession of the railway company, because the first part court; and, in that event, the court shall have jurisdiction to hear and of the section did not give any right of retainer or sale in respect of tolls determine the appeal, and may make such order as aforesaid.” And, by payahle before the property, the carriages or the goods-last came into section 90, “ The court may, on the application of any person aggrieved the possession of the railway company. Their claim was limited to the by the omission without sufficient cause of the name of any person from last service, the last journey performed, to the claim which they had any register kept under this Act, or by any entry made without sufficient while the goods had been in their possession; and in the present case, in

cause in any such register, make such order for making, expunging, or respect of all the journeys except the last, these wagons had been out of varying the entry, as the court thinks fit, or the court may refuse the the possession of the railway company, having gone from their possession application." In the present case the Normal Co. applied to the to the colliery company and come back to them. But had they any claim Comptroller for the registration of the word “Normal ” as a trade-mark, even in respect of any toll due to them for the last journey, that is, in respect of substances used as food or as ingredients of food. Acting during the period when they had not been out of the possession of the under instructions from the Board of Trade not to register as trade-marks railway company? The question was, whether it could be said that there mere “dictionary words as “fancy words” within section 64 (1) (c.), the Were any tolls due in respect of these wagons, or any of them? It was Comptroller refused to register the word "Normal,” and the company, argued that the tolls given by the special Act, though in form on the coals considering that it was hopeless to appeal to the Board of Trade, applied carried, were really tolls in respect, not only of coals, but also of the to Chitty, J., to order the registration. The Comptroller took the precarriages in which the coals were carried, and that otherwise no meaning liminary 'objection that the court had no jurisdiction to deal with an could be given to section 97 (which used the disjunctive words in application for registration which had been refused by him, unless the respect of any carriage or goods'). But, at the time when the Railways applicant had first appealed to the Board of Trade, and the Board of Trade should be great highways to Shauses Act was passed, it was evidently contemplated that railways had referred the appeal to the court. Chitty, J., allowed the objection.

be used either by the railway The Court of Appeal (COTTON, LINDLEY, and Lopes, L.JJ.) affirmed his companies by their own

carriages and their engines, or decision. COTTON, L.J., said that the question was, whether section 90 of by any persons who brought on to a railway carriages of their own suitable to run upon the line.

the Act gave an applicant for registration of a trade-mark whose applicaIn order to bring the defendant com tion had been refused by the Comptroller a right to go to the court at pany within the first part of section 97, they must shew that what they once.

The main argument for the appellant had been that section 5 of claimed were really tolls in respect of the carriages which they sought to

the Trade-Marks Act, 1875, acknowledged the right of an applicant whose detain, and the toll was really given in respect of the coal carried, not application had been refused by the registrar to appeal to the court ; and A toll in respect of carriages and coal, but a toll on the coal which had it was said that it could hardly be supposed that the Act of 1883 would been carried and in respect of that only. The Legislature no doubt conmered that it was most convenient to give toll upon the coal and not in the Act of 1883 must have been intended to give the same right as section the first part of section 97 could not be maintained. And, as to the of 1875, and the question was whether the Act of 1883 gave the same right. second part of that section, the company were only entitled to detain and The words of the two enactments were different. In the earlier Act there sell carriages or goods which were on their premises belonging to the was a specific reference to a refusal to register, and there were no other party, liable to pay such tolls, whatever “ tolls” might mean. Could it provisions as to appealing from the registrar. The appeal was necessary be said that they had any right in respect of these wagons, which, at the

to the court in that case; but in the Act of 1883 that consideration could de tentara the plaintiffs ? "In his "fordships opinion line certa nibe. Bis che appear to the Board of Trade. er at special mode of remedying the grievance

of the applicant being provided by means of an appeal to the Board of hehem the Act gave them power to detain and to sell carriages or goods Trade, it would be wrong to say that he was aggrieved” by the refusal anche carriages or goode. The interest to bene B. who has been determined because there must be cases of doubtful law and disputed facts, with which

becamento do so as against another person who was the real owney not mean that there was to be an appeal only to the Board of Trade, tiede home to an end before this action was brought an deene plaintines be legal tribunals would be better able to deal than the Board of die hetic ailway company might have been lavtleges the originaling ten that powers to the Comptroller and he board, and it was not unreasonable detention became unlawful when they were informed of the true ownership of the wagons and refused to give them up to the true owners on

that questions relating to registration should be left to be decided in the

one way pointed out. It would be wrong to suppose that a department their love deal owners' title had aceed and they had required fponiesi theo n60, in the cessary, refiere a date to the courtun They were not bound to do so, paly Payable by anyone in respect of these partiether tradisions that payabile decided already, they botic not dena it to the court but generally they



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302 cretion by referring the case to the court. The object and effect of limitation then took effect. The right heirs of R. B. De Beauvoir, at the section 90 were to remedy defects in the register, and to enable the court time of his death, were his three sisters and the five daughters of a to remove from it that which could not be the subject of a trade-mark. deceased sister, of whom the only survivors, at the death of the tenant It was altogether a different question whether a particular thing was a for life in 1883, were four of the daughters of the deceased sister. trade-mark proper to be registered. It would be a strained interpretation action was brought by a person entitled to a share of the estate of one of of the Act to say that on such a question there was an appeal from the the three sisters, claiming a partition or sale, and one of the inquiries Comptroller to the court ? when another mode of appeal was provided directed by the judgment was as to the parties interested in the estate. by the Act. LINDLEY and LOPES, L.JJ., concurred.COUNSEL, Aston, The chief clerk's finding in answer to this inquiry was based upon the Q.C., and Chadwyck-Healey ; Sir R. Webster, A.G., and Ingle Joyce. principle that the persons taking as right heirs of R. B. De Beauvoir at SOLICITORS, Munns & Longden ; Hare & Co.

the date of his death took as tenants in common, and not as joint tenants,

and, consequently, that a one-fourth share in the estate was vested in the Re CLARKE, COOMBE v. CARTER-Kay, J., 17th, 21st, and 26th persons who respectively represented the three sisters, and he certified February.

accordingly. A summons was thereupon taken out by the daughters of

the deceased sister to vary the certificate by declaring that the right heirs MORTGAGB- ASSIGNMENT OP AFTER-ACQUIRED PROPERTY-UNCERTAINTY of R. B. De Beauvoir took as joint tenants, the effect of which would be “ ENTITLED UNDER ANY WILL”-DIVISIBLE CONTRACT.

to make them solely entitled. A mortgagor assigned all the household goods and live and dead farming

KAY, J., having taken time to consider the case, now decided that the stock, tenant's rights and interests of the mortgagor of, in, or upon any right heirs took as joint tenants. His lordship, after stating the facts, farm now held, or which during this security might be held by him ; said that the first question was whether the heirs took as persone also all real and personal estate to which he should become entitled under designatæ or as co-parceners. The law was stated by Littleton (section the will of his father; also all moneys of, or to which he then was, or 254) thus:-“None are called parceners by the common law but females, might during that security become entitled under any settlement, will, or the heirs of females, which come to lands or tenements by descent, or other document, either in his own right, or as the devisee, legatee, or for, if sisters purchase lands or tenements, of this they are called joint next-of-kin of his father, or any person or persons; also a policy of as teriants, and not parceners," on which Coke's commentary was: “This surance; also all other, the freehold hereditaments, goods, chattels, needs no explanation.” The term “purchase” here meant, of course, effects, debts, securities, documents, vouchers, books of account, fixtures not “buy," but take by purchase, in contradistinction to descent. No and personal property of, in, or to which he was, or during that security authority had been cited to in any way contravene or throw doubt upon should become beneficially seised, possessed, entitled, or interested, with this statement of the law; indeed, the authorities such as Mounsey v. power to enter and possess. By a second deed he assigned all the free Blamire (4 Russ. 384) and Swaine v. Burton (15 Ves. 365), which were hold hereditaments, goods, chattels, and effects, debts, securities, docu- recognized in De Beauvoir v. De Beauvoir (3 H. L. C. 524), established the ments, vouchers, books of account, fixtures, and personal property of, in, proposition that a direct bequest or devise to the heirs of a third person or to which he was or during that security might become beneficially to whom no estate was given was a gift to the heir or heirs as persona seised, possessed, entitled, or interested. Each of the mortgages con

designate. It was argued that section 4 of the Inheritance Act might tained an exception of the wearing apparel of the mortgagor and lease make a difference, but the object of that section was merely to provide hold estate, but such excepted property was to pass on notice. The in what course land was to descend where the purchaser did not dispose question was whether property subsequently acquired by the mortgagor of it, not to alter the estate taken therein by the purchaser himself. To as residuary legatee under a will was bound by the mortgages, or whether

meet this an ingenious argument was founded on section 3 of that Act, they were void for uncertainty.

which, it was said, in providing that, under a devise to an heir, he was to KAY, J., said that the agreement was divisible and that the case thus differed from the Official Receiver v. Tailby (35 W. R. 91, 18 Q. B. D. 25), co-parceners take as persona designatæ, and, therefore, it was argued they

be considered to have acquired as devisee, and not by descent, made The authorities were conclusive as to the part relating to property derived would, as joint tenants, take a different estate from that to which they under any will, and the fund in question was, therefore, bound by the would have been entitled under the old law if the descent had not been mortgages.-COUNSEL, Yate Lee; Byrne ; Begg. SOLICITORS, Storey s broken ; thus, in effect, altering the purchaser's estate.

He was not, Cowland for Crick & Freeman, Maldon, Essex ; Duffield & Bruty ; Paterson, however, dealing at present with section 3, but with section 4, which, in Snow, Bloxam, g Kinder, for F. T. Veley, Chelmsford.

his opinion, did not alter the estate of the co-heirs. The application was

accordingly acceded to and the certificate varied as asked by the EDEN v. WEARDALE IRON AND COAL CO.-Kay, J., 27th February. summons. -COUNSEL, Horton Smith, Q.C., and R. F. Norton ; Marten, PRACTICE—THIRD PARTY_INTERROGATORIES—“PLAINTIFF OR DEFENDANT

Q C., and H. Lake ; Smart and s. A. Sampson. SOLICITORS, Lake, Beau-Right OF THIRD PARTY TO INTERROGATE PLAINTIFF-R. S. C., 1883, mont, & Lake ; Parkin, Woodhouse, Trower, g Freeling. XXXI., 1. The Ecclesiastical Commissioners had been brought into the action as

SHAFTO v. BOLCKOW, VAUGHAN, & CO. AND THE ECCLESI. third parties, and orders had been made giving them leave to defend and

ASTICAL COMMISSIONERS—Chitty, J., 26th February. deliver a counter-claim. The counter-claim was struck out by the ourt R. S. C., 1883, XXV., 4-STRIKING OUT STATEMENT OF Claim-INJUNCof Appeal, and the commissioners obtained leave to withdraw their

TION AGAINST LESSORS IN RESPECT OF ACTS BY LESSEES. defence. An order was then made that the question between the com. missioners and the defendants should be tried after the trial of the action; sioners, under R. S. O., 1883, XXV., 4, for an order that the plaintiff's

This was a summons by the defendants, the Ecclesiastical Commisand tbat the commissioners should be at liberty to appear at the trial and oppose the plaintiff. The plaintiff obtained leave to admivister inter- ground that it disclosed no reasonable cause of action against them. It

statement of claim might be struck out as against the applicants, on the rogatories to the commissioners (Eden v. Weardale Iron and Coal Co., 35 appeared that the plaintiff was tenant of certain copyholds held of the W. R. 235), and the commissioners now applied for leave to interrogate Manor of Bondgate, in Auckland, and that the applicants were lords of the plaintiff.

the manor. KAY, J., said that Le was bound by what the Lords Justices had said in

The statement of claim alleged that there was no custom of Eden v. Wearilale Iron and Coal Co. (33 W. R. 241, 28 Ch. D._333),

the manor entitling the lords thereof, or persons claiming under

and must hold that the commissioners were not defendants.

them, to get or work the minerals under the copyhold lands of the manor

They were clearly not plaintiffs, so that they did not come within ord. 31, r. 1, and

without the consent of the tenants thereof, and that the defendants, he could not give them leave to deliver interrogatories, although they the Ecclesiastical Commissioners, had, without such consent on the part

Bolckow, Vaughan, & Co., claiming to do so under some lease from could themselves be interrogated to any extent. -Counsel, Blakesley and of the plaintiff, wrongfully got coal under the plaintiffs' lands, and Dunham. SOLICITORS, White, Borrett, Co.: Crossman, Crossman, š that the Ecclesiastical Commissioners wrongfully alleged that they were Pritchard, for Trotter, Bruce, & Trotter, Bishop Auckland.

entitled, by themselves and their lessees, to do the acts complained of,

and, in fact, justified, and approved of the acts of the defendant com. BERENS v. FELLOWES-Kay, J., 1st March.

pany, and alleged that the company, as claiming under the said lease, are SETTLEMENT—ConstructION—LIMITATION TO Right Heirs or Stranger, received, and claimed to be entitled to receive, from the company. Tento

ANCE ACT (3 & 4 WILL. 4, c. 106), ss 3 AND 4.

and other dues, and the plaintiff claimed against the defendants injuncThis case raised a curious question, on which it appeared that there

tions and damages. The applicants submitted, in support of the sum: was no direct authority-viz., as to the effect of a limitation by settlement by a lesgee under a lease, the legality of which lease was not disputed,

mons, that there was no precedent for joining a landlord in respect of Acts erty so limited, the question being whether, there being co-heirs, they for joining defendanes for the mere purpose of discovery, and accounted took the estate in the same shares and with the same incidents as if they for their desire to succeed onea Techn Touring on the ground' that an investihad acquired it from an ancestor on an intestacy, or as if they had been gation of their title deeds would cost the applicants £2,000. actually inserted by name in the settlement. R. B. De Beauvoir, who died in 1854, by his will gave certain benefits to his nephews on condition

CHITTY, J., said that the statement of claim in substance set up the that they setiled an estate belonging to them, called the Downham restrained either of themselves or by their lessees. To try such a quand

case that the applicants claimed the right to do the acts sought to be Estate, on certain trusts which included an ultimate limitation to the right heirs of the testator. R. B. De Beauvoir had no estate of his own

tion in the absence of the applicants would be most inconvenient, and in the Downham property. The nephews having elected to take under

the plaintiff was, in his lordship’s viert, entitled to join the applicants, the will, by an indenture of the 29th of January, 1856, they duly settled they claimed a right.

not only on the ground that they had a large interest, but also because the Downham Estate as directed by the will of R. B. De Beauvoir, the

The cases of Hext v. Gill (20 W. R. 957, 7 ultimate limitation being * to the use of the right heirs of all. B. the defendants who claimed a right could be joined, although they had ante

Ch. 699) and Tipping v. Eckersley (2 K. & J. 264) shewed that Be21883, and, the precedingt limitations having air failed, then antimate claimed the signie has, in his hordani pa so judgment, quite sufficient ground

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