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COVENANTS RUNNING WITH THE LAND.

(II.) COVENANTS IN GENERAL (concluded).

In dealing with covenants relating to the use of land, we have thus discussed thoroughly the manner in which the burden of them may be made binding on successive owners. We shall now, as before, take up the benefit of the covenant, and see in the same manner how it can be annexed to the land.

(b.) The benefit.—It frequently happens that a vendor of land wishes to obtain some advantage for other land which he retains. The main point to be considered here is that such benefit must be really connected with the land retained, as the vendor cannot create rights unconnected with the use or enjoyment of it, and annex them to it. This was decided in Ackroyd v. Smith (1850, 10 C. B. 164). There, upon the conveyance of lands to A., a 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 without success. It was said by Cresswell, J., that, as a covenant for such a right would not run with the land, not being incident 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, the 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, J., that, for a benefit to run with land, it must be a benefit to the owner as owner of the land. And in Ellis v. Mayor of Bridgnorth (1863, 15 C. B. N. S. 52) these two cases were quoted and followed. There a prescriptive right was set up to have free stalls in the market-place opposite certain houses adjoining it, and it was held that this benefit was sufficiently connected with the houses to run with them. But, as we have already remarked, the point was made the subject of special examination by Cotton, L.J., in Austerberry v. Corporation of Oldham (1885, 29 Ch. D. 776). In that case it was held that the benefit of the covenant did not run because it was not closely enough connected with the land, though Fry, L.J., was not altogether satisfied on the point.

It seems, however, that a vendor does not annex the benefit of a covenant to land by merely entering into it. It may indeed be of importance to himself alone, and there is good authority for saying that a purchaser does not take it unless he has notice of it, and unless it really forms part of the subject-matter of his purchase. This was laid down by Hall, V.C., in Renals v. Cowlishaw (1878, 26 W. R. 754). It is to be noticed, too, that the matter does not now depend upon the form of the covenant-i.e., whether assigns are mentioned or no; for by the Conveyancing Act, 8. 58, it is provided that a covenant relating to land of inheritance shall be deemed to be made with the covenantee, his heirs and assigns, and shall have effect as if heirs and assigns were expressed.

But the most important cases at present, both as regards the benefit and the burden of the covenant, are those in which an estate is laid out for building, and the purchasers of the several plots are bound by certain common rules and restrictions. The doctrine of notice has made it easy to secure the uniformity required. Thus in Whatman v. Gibson (1838, 9 Sim. 196), A., upon the sale of his estate in lots, made it a preliminary condition that each purchaser should observe certain stipulations, and there was a covenant in a deed to be executed by A. and all the purchasers that none of them should be an innkeeper. B. and C. were two such purchasers who executed the deed. B. assigned to W. and C. to G., who took with notice. This was before Tulk v. Moxhay, but Sir Lancelot Shadwell, V.C., had no difficulty in holding that the agreement, though personal to the parties executing the deed, was nevertheless binding on all coming in with notice. So in Coles v. Sime (1853, Kay, 56, 5 D. M. & G. 1), in the original agreements with builders a certain covenant was entered into, and somewhat elaborate machinery was designed for making it binding in the subsequent conveyances; bnt it was held binding between assigns from the original purchasers merely by force of the agreement of which they had notice. Jay v. Richardson (1862, 3 L. J. Ch. 398) is an instructive case of the same kind. A. laid his estate out for building. He demised lot x. to B. for an inn, and covenanted to have no other on the estate. Lot y. he let to C., who covenanted not to use it for the sale of beer, &c. Subsequently the reversion in lot y. came to K., who purchased C.'s lease and began to build a public-house. But he had notice of C.'s covenant and was bound by it.

In the above cases there was a general plan of building, and,

where this is so, there is little difficulty in enforcing the covenants relating to it. Such general plan though is, of course, not essential. Thus in Mann v. Stephens (1846, 15 Sim. 377) the covenant related to two adjacent plots only, but it was equally binding on the ground of notice. But where there is a general plan, and each purchaser in turn binds himself, this is in itself a reason why he should have the benefit of the vendor's covenant as against the rest, and so it was held in Child v. Douglas (1854, Kay, 560). But the whole matter was discussed and the cases carefully examined in Keates v. Lyon (1869, 5 Ch. 218). There A. conveyed land to B., who covenanted as to the nature and value of the buildings to be erected. There was no general building plan, but A. conveyed other plots to C. and D. C. and D. were not bought back the land from B.; and C. and D. sought to maintain shewn to have entered into any covenants. Subsequently A. that it was still charged in the hands of A. with the burden of the covenant for their benefit. The court, after referring to the influence of Tulk v. Moxhay on the burden of covenants, said:"The questions which have arisen with respect to the devolution of the benefit of covenants of this kind have been decided similar tions depending on the covenants running or not running with the principles, and equally without reference to any technical distinc

land."

upon

Then, after examining Whatman v. Gibson, Coles v. Sims, and Western v. MacDermott (1 Eq. 499), Selwyn, L.J., proceeded to say: "In all these cases the judgment of the court is based upon clear evidence of intention and contract, supported by mutual covenants, and relating to a particular and defined portion of land agreed to be laid out and dealt with according to a prescribed plan."

In Mann v. Stephens there was indeed no general plan, but there were, at least, covenants by each purchaser. But in the case in question neither of these elements was present, and the court said that the contention that the benefit of the covenant is, as of course, attached to the land, is unsupported either by principle or authority, and would greatly interfere with the free alienation of landed estates. Thus it appears that it is comparatively easy to make the benefit of covenants run with different plots where there is a general plan of building; but otherwise it is necessary, either that the purchaser should have had notice of the covenant and made its benefit part of the subject-matter of his purchase, or that he should have bound himself by a similar covenant. Of course the plan of building must be actually fixed at the commencement, but in Schreiber v. Creed (1839, 10 Sim. 9) it was to be subject to alteration by the vendor; hence the original purchasers who had covenanted in accordance with it had no remedy when the vendor afterwards sold other plots subject to different covenants.

It was,

It must not be supposed, however, that covenants will be enforced in equity regardless of change of circumstances. indeed, pointed out by the Real Property Commissioners (Third Report, p. 55) that one great advantage of leaving covenants entirely to equity lay in the elasticity with which equity could treat them, an elasticity not possible if they ran with the land at law. The court might thus refuse to enforce them when change of circumstances or considerations of public policy made it desirable. A good instance of this is afforded by Duke of Bedford . Trustees of British Museum (1822, 2 My. & K. 552), where the trustees were allowed to build in violation of the original covenant, inasmuch as the successors of the covenantee had themselves permitted the character of the rest of the estate to be altered. At any rate, Lord Eldon, who called to his assistance Sir T. Plumer, M.R., declined to interfere, and left the Duke to his remedy at law.

(3.) Covenants for title and for the production of title deeds.— With regard to covenants for title, we have, of course, only to consider the benefit of the covenant as running with the land sold. There is no question of the burden binding any land which the vendor retains; it falls only on the vendor and those who take his estate, real or personal. But, so far as the benefit is concerned, this runs with the purchaser's land according to the rules which have been laid down for covenants at law generally-that is, it runs on the ground of privity of estate. This was settled in Middlemore v. Goodale (1639, Cro. Car. 503). There G. enfeoffed J. S., and covenanted for further assurance. J. S. conveyed to M., who requested G. for further assurance to levy a fine. G. refused, but it was held that the covenant ran with the land, and so he was

bound. The fact that this was based on privity of estate was brought out in Campbell v. Lewis (1820, 3 B. & Ald. 392). A., a lessee, assigned his term to B., and covenanted for quiet enjoyment. B. assigned to C., who was evicted by the lessor for a breach of covenant committed by A. The court had no doubt that C. took the benefit of B.'s covenant on the ground of privity.

uses.

The only point, then, to be noticed is, that special provision is made by the Conveyancing Act in respect to covenants for title implied under that Act. It is enacted in section 7 (6) that the benefit of such covenants shall be annexed and incident to, and shall go with, the estate or interest of the implied covenantee, and shall be capable of being enforced by every person in whom that estate or interest is, for the whole or any part thereof, from time to time vested. The effect of this is to do away with the necessity for privity of estate between the original covenanting parties; but it must be noticed that the covenant is made to run only with the estate of the covenantee, and so a door is left open for the subtleties of privity of estate between successive assignees. This subject was treated of in our third article, and it was there seen that, to insure safety, a covenant should be entered into with the grantee to uses, inasmuch as the benefit would be attached to each use as it came into existence. But this is, in fact, the case with the implied covenants in question. It is provided by section 7 (1) that they shall be deemed to be made with the person to whom the conveyance is made, and upon a conveyance to uses this is the grantee to As to covenants to produce title deeds, on the other hand, these only apply where a vendor retains land in his hands, or where, upon a sale of the same estate in lots, the deeds are handed over to one among several purchasers. The question as to whether the burden of covenants of this description runs with the land in the hands of alienees has been a vexed one. Lord St. Leonards concludes his discussion of the subject by strongly advocating that it should, upon the ground, chiefly, that, as the deeds are attached to the land as a benefit, so it is not unreasonable that the burden of the covenant to produce them, at the request of the other parties interested, should be attached to the land also. But with this, as with other covenants, the matter has ceased to be very material, for, even if the covenant should not run with the land at law, yet there is no doubt that the successors in title of the purchaser would have a right in equity to enforce the production of the deeds against persons claiming and holding them through the vendor. The Conveyancing Act, too, has here introduced a very useful reform by substituting for the old covenants acknowledgment of the right of production and an undertaking for safe custody of documents. The exact nature of such acknowledgment and undertaking, and the liabilities incident thereto, are very carefully defined in section 9, and we need not here reproduce them. The general effect, however, is to make the legal right to production co-extensive with the equitable right. Also the personal liability of the original covenantor ceases upon his properly parting with the documents, and his obligations are transferred to each subsequent possessor, but for the period only of his possession (Wolstenholme & Turner Conv. Act, note to s. 9). The manner in which this matter has been settled may well arouse regret that the many other vexed points with respect to covenants to which we have referred could not have been settled at the same time.

an

THE SOLICITORS' PRELIMINARY EXAMINATION. AT the recent general meeting of the Incorporated Law Society the president stated that the council had made certain alterations in the regulations as to the preliminary examination which would have the effect of raising its standard, but, as the regulations were then before the judges, he was unable to enter into details. We have not as yet 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 necessary, and no particular amount of knowledge of any description was required, and the course of studies pursued in the office was left entirely to the choice of the pupil. This was a highly unsatisfactory state of things, because, in order to enable a person seeking te become a solicitor to perform his professional duties in a proper manner, he should, before he enters into articles, possess a good

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In 1846 a Select Committee of the House of Commons was appointed to inquire into the state of legal education in Ireland, and the inquiry was afterwards extended to England. The committee in their report, among other things, recommended that, in providing for the special education of a solicitor, a stringent examination should be required in general knowledge previous to admission to apprenticeship-that this examination should embrace, in addition to the commercial education," a ordinary acquirements of the so called " competent knowledge of Latin, geography, history, the elements of mathematics and ethics, and one or more of the modern languages. No steps appear to have been taken in pursuance of this recommendation until 1854, when the Council of the Law Society urged upon the authorities the necessity for establishing a preliminary examination, and they did not cease their exertions in that direction until the Solicitors Act, 1860, was passed, which provided for the bolding of preliminary examinations. With certain exceptions, all persons are required to pass this examination prior to entering into articles of clerkship. The exceptions referred to were made in favour tions. Certain judges were also authorized to exempt, either wholly of persors who had passed various university and other examinaor partially, from the examination, or subject to any conditions they might think fit to impose. The Act also contained a provision 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 have been a popular delusion that such persons were, as of right, entitled to exemption from the preliminary examination, and this dispensing orders to all persons who applied to him for them, and it idea was fostered by the late Chief Baron Kelly, who granted is a well-known fact that numbers of clerks have walked about for years, with orders in their pockets, seeking for solicitors to give them articles. Since the death of the Chief Baron this delusion has nearly died out, and it is now generally understood that orders for exemption will not be granted unless the applicant has passed some examination fairly equivalent to the preliminary; but in special circumstances orders are made allowing the applicants to enter into articles at once on condition of passing the examination within a enrolled or registered until the clerk has passed the preliminary given period-generally twelve months-but the articles are not examination. There is no objection to orders of this kind, as they secure what is required-viz., that a person should, before he is admitted as a solicitor, possess, at all events, a moderate acquaintance with the subjects required for the preliminary examination. In no other profession are persons allowed to enter by a back-door, and there seems to be no reason for an exception being made in the case of solicitors. The business of a solicitor brings him in contact with all classes of the community, and in his intercourse with his clients it is essential that he should be able to comport himself as a gentleman, but the chances are greatly against his being able to do this unless he has had a good general education.

It should not be forgotten that there are various examinations which, under statutory provisions, exempt from the preliminary. Many of those are of a very elementary character, and it is obvious, therefore, that it is comparatively useless to raise the standard of ions be raised to the same level. It is, however, believed that there the preliminary examination, unless the standard of those examinawould be great difficulty about this, and the only other course is to obtain the repeal of the provisions under which these examinations are accepted in lieu of the preliminary examination. The general 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 now than it was then, and so long as the authorities who conduct them choose to give certificates to candidates that they have passed them it is believed that the Law Society cannot go behind such certificates, though the standard of the examinations may have been materially lowered. Some provision should be made for meeting such a contingency as this, although the probability of its arising

may

be remote.

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 of such costs, and in each case the maximum scale allowed by the Corrupt Practices Act of 1883. The sums given are inclusive of returning officers' charges. The summary shews that the total sum for England and Wales spent by 857 candidates was £515,683 (an average of 4s. 1d. a vote) out of the legal maximum of £711,075.

CORRESPONDENCE.

TRANSFER OF BEERHOUSE CERTIFICATES.
[To the Editor of the Solicitors' Journal.]

66

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 under section 4, not section 14, of the Act of 9 Geo. 4, c. 61; section 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 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 judgment in the Blackheath case, that the court was of opinion that 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 licensee taking back the premises or procuring a more eligible transferee, and meantime the justices are bound (apart from the "four grounds") to renew the licence to the holder or his representatives, and it is submitted, therefore, that there is no such hardship as the court seemed to contemplate. These latter observations, as well as your own, apply equally, mutatis mutandis, to applications under the 14th section, and appear to bear out your view that the restrictions of section 19 of the Act of 1869, as amended by that of 1870, only relate to annual meetings, and not to the intermediate sessions. I may mention that the Act 45 & 46 Vict c. 34, referred to at the close of the article, and which supersedes (as to beer only) section 8 of the Act of 1869, is considered to relate, like that section, to new licences. Section 19 of the latter Act is not superseded, and the words of the former Act are hardly strong enough to apply to renewals. WALTER SCADDING. 23, Gordon-street, Gordon-square, W.C., March 1.

COVENANTS RUNNING WITH THE LAND.

[To the Editor of the Solicitors' Journal.]

Sir, It is with some surprise that I find the writer of the instructive articles under this heading quietly accepting the decision in Luker v. Dennis. I expected to find him denouncing it energetically. May I shortly re-state its purport? A. granted a lease to B. of a public-house, and made B. covenant that all beer to be sold in that house and also in another house (held on lease by B. from a different landlord) should be bought from A. Mr. Justice Fry held an assignee 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 property. The doctrine of notice, invented in Tulk v. Morhay and developed by Wilson v. Hart, has come to be applied very much to the trading covenants relating to beer, and, in spite of the explanation repeatedly given that Tulk v. Morhay applies only to restrictive covenants, it is made to apply where the covenant can by no straining of language be deemed restrictive. Let us apply Luker v. Dennis to circumstances one step beyond those that existed. Suppose that the covenantor surrendered the lease of his other house. Would the freeholder have been bound to all time, or for any time, by the foolish covenant of his tenant? If not, how can the freeholder be looked upon as having different rights from those of another assignee? But if he is bound, what a monstrous thing it is!

It is a great pity that decisions so unreasonable, inequitable, and vicious stand, owing to the mercy of a poor litigant whose courage or means fall short of the Appeal Court. Your approval makes one the less hopeful of getting rid of such a case; but Mr. Challis, as you quote him, shews that there is a possibility that the "absurd lengths" to which the principle of notice has been carried may some day be dealt with by lights superior to that of Luker v. Dennis, if, indeed, it is not virtually upset by Austerberry v Corporation of

Oldham.

CHR. PAGE DEANE.

notice. But if, as our correspondent supposes, B. had surrendered 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 of the term; the covenant was expressly limited to the residue of the 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 y. then, if he chooses to accept a surrender, is no worse off than an ordinary assignee.-ED. S. J.]

CASES OF THE WEEK.

RICHARDS. JENKINS, C- A. No. 1, 1st March. BANKRUPTCY-INTERPLEADER-EXECUTION CREDITOR-JUS TERTII. 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 had recovered judgment against one Williams, upon which execution The plaintiff, prior to 1884, had let the goods in question to Williams; was issued, and certain goods in the possession of Williams were seized. but in that year he became bankrupt. His trustee in bankruptcy did not know that he had the property in question, and he concealed the fact from his trustee, but continued to receive payment for the hire of the goods. Upon the goods being seized he claimed them, and an interpleader issue was ordered and was remitted for trial to the county court. The county court judge held that the defendant could not set up the title of the plaintiff's trustee in bankruptcy to defeat the plaintiff's claim. The Divisional Court reversed this decision on the ground that the execution creditor, being, primâ facie, in possession, he could shew that trustee for this purpose. the plaintiff had no right to the goods, and could set up the title of the

The

THE COURT (Lord ESHER, M. R., BOWEN and FRY, L.JJ.), upheld this decision, but on other grounds. Lord ESHER, M.R., said that it was incorrect to say that the execution creditor was in possession. 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 seized the goods the claimant had any right to them. The right which he undoubtedly had at the time he let the goods had passed on his bankruptcy to his trustee. The exection debtor had paid rent to the claimant since the bankruptcy; but that would only create an estoppel as against him and prevent him from saying that the claimant had no title. The execution creditor did not claim through the execution debtor, but against him by the operation of law, and therefore the estoppel did not affect him, nor did the estoppel create any interest in the claimant in the goods. He had, therefore, no claim as against the execution creditor, and the appeal must be dismissed. SOLICITORS, Carter & Church; Richard White, for J. R. Richards, Swansea. - COUNSEL, R. Williams; Glascodine.

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This was a motion by the plaintiff that the defendant might be ordered to give security for the costs of an appeal, of which he had given notice. The plaintiff adduced evidence to shew the inability of the defendant to pay the costs of the appeal, and also to shew that he had carried on other vexatious litigation against the plaintiff. security to be given, but they disallowed the costs of the plaintiff's THE COURT OF APPEAL (COTTON, LINDLEY, and LOPES, L.JJ.) ordered affidavits so far as they related to the alleged vexatious litigation, in which respect they held that the affidavits were irrelevant.-COUNSEL, Colt; Costelloe. SOLICITORS, G. J. Eady; R. D. Teanby.

THE NORTH CENTRAL WAGON CO. . THE MANCHESTER,

SHEFFIELD, AND LINCOLNSHIRE RAILWAY CO.-C. A. No. 2,
24th February.
RAILWAY COMPANY-LIEN FOR TOLLS-RAILWAYS CLAUSES CONSOLIDATION
ACT, 1845, s. 97.

Ch. D. 477, 30 SOLICITORS' JOURNAL, 337), the question being as to the
This was an appeal from a decision of Bacon, V.C. (34 W. R. 430, 32
construction of section 97 of the Railways Clauses Consolidation Act, 1845,
which provides that, "If, on demand, any person fail to pay the tolls due
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, if the
same shall have been removed from the premises of the company, to

3, Union-court, Old Broad-street, E. C., March 1. [The object of the articles is to state the law, not to criticize or ap-detair. and sell any other carriages or goods within such premises belongprove it. It appears that, while most other points have been simplified and settled by statute, the Legislature has not yet ventured to enact the rules relating to the burden of covenants. If it ever does so, the effect these have had on particular trades may have to be considered. It seems clear, however, that the doctrine of Luker v. Dennis (7 Ch. D. 227) would not have the extreme effect which our correspondent fears in his hypothetical change of circumstances. Stated briefly, the case was as follows. A., a brewer, let a public-house x. to B. B. already had a lease of a public-house y. from C. In the lease of x. B. covenanted to get all the beer for x. and y. from A. This covenant, therefore, was collateral to the lease of y., and D., the assignee of y., would not have been bound had he not had actual

ing to the party liable to pay such tolls, and out of the moneys arising from such sale to retain the tolls payable as aforesaid, and all charges and expenses of such detention and sale, rendering the overplus, if any, of the moneys arising from such sale, and such of the carriages or goods as shall remain unsold, to the person entitled thereto, or it shall be lawful for the company to recover any such tolls by action at law." The defendant combut which had been let by them to a company called the B. Colliery Co, pany had detained certain wagons, the property of the plaintiff company, B. Co. By the agreement the plaintiff company let 100 wagons to the B. under a hiring agreement, claiming a lien on them for tolls due from the Co. for three years, at a rent payable quarterly. The plaintiffs were authorized, in case of a quarter's rent being in arrear for seven days, to seize the wagons and put an end to the agreement. The B. Co., whose

was no toll due in respect of them. The appeal, therefore, must be allowed. LOPES, L.J., said that when the Railways Clauses Act was passed it seemed to have been contemplated that private owners would not only run their own carriages over the railways, but also their own private engines. Therefore, it was quite intelligible that the Legislature should draw a distinction between tolls payable in respect of carriages and tolls payable in respect of goods. He was of opinion that it was a condition precedent, at any rate so far as the first part of section 97 was concerned, that, in order to authorize the company to detain and sell a carriage or carriages, the toll in question should be due in respect of a carriage or carriages. And, in order to authorize the company to detain and sell carriages under the second part of the section, he was inclined to think thrt it was also necessary that tolls should be due in respect of carriages. But, at any rate, the railway company failed to justify their right to detain and sell under the second part of the section, because the carriages in question did not belong to a party liable to pay toll within the meaning of that part of section 97.-COUNSEL, Rigby, Q.C., and Phipson Beale; Henn Collins, Q.C., and C. A. Russell. SOLICITORS, Ridsdale & Son; Cunliffes & Davenport.

colliery was connected with the defendant company's railway by anot, therefore, justify the detention of the trucks, simply because there siding, sent coal in the 100 wagons from their colliery over the siding and on to the railway for transit to their destination, the locomotive power being supplied by the defendant company, who sent their engines for the purpose on to the siding. The wagons bore the name-plates of the plaintiff company and the B. Co. Monthly accounts were sent by the railway company to the B. Co., charging against each wagon-load a sum for carriage, made up of a charge (authorized by the railway company's special Act) for the use of the line, and an additional charge for the supply of locomotive power. In February, 1885, the B. Co. having become insolvent, and the sum of £237 7s. 10d. being claimed by the defendant company as due to them on the monthly accounts, the defendant company detained nine of the wagons which were then on their line, claiming a lien on them for the unpaid balance under section 97. Two quarter's rent being in arrear under the agreement, the plaintiffs also seized ninetyone of the wagons, which were not on the railway company's line, and brought this action against the railway company for delivery up of the nine wagons which were in their possession. Bacon, V.C., dismissed the action, on the ground that the hiring agreement was a bill of sale, and was void under the Bills of Sale Act, 1882, and also that the defendants were entitled to the lien which they claimed. On the first point the Court of Appeal reversed the decision (ante, p. 124). The appeal was afterwards heard on the other point.

THE COURT OF APPEAL (COTTON, LINDLEY, and LOPES, L.JJ.) reversed the decision on this point also. COTTON, L.J., said that section 97 was divided into two parts. The first part provided that where there was a toll duei n respect of any carriage or goods, the railway company, before they parted with the carriage or with the goods in respect of which they had a right to toll, might demand payment, and if payment of that toll was not made, then they might detain either the carriage or the goods in respect of which the toll was demandable- that is, before they left the premises of the railway company or got out of their possession. Then the second part of the section provided, "Or, if the same shall have been removed from the premises of the company, to detain and sell any other carriages or goods belonging to the party liable to pay such tolls." The defendant company had made a claim in respect of all the journeys on their line performed by these particular nine wagons. In his lordship's opinion they could have no claim except in respect of the tolls, if any, due in respect of those carriages during the period for which they had been, without having been removed, in the possession of the railway company, because the first part of the section did not give any right of retainer or sale in respect of tolls payable before the property-the carriages or the goods-last came into the possession of the railway company. Their claim was limited to the last service, the last journey performed, to the claim which they had while the goods had been in their possession; and in the present case, in respect of all the journeys except the last, these wagons had been out of the possession of the railway company, having gone from their possession to the colliery company and come back to them. But had they any claim even in respect of any toll due to them for the last journey-that is, during the period when they had not been out of the possession of the railway company? The question was, whether it could be said that there were any tolls due in respect of these wagons, or any of them? It was argued that the tolls given by the special Act, though in form on the coals carried, were really tolls in respect, not only of coals, but also of the carriages in which the coals were carried, and that otherwise no meaning could be given to section 97 (which used the disjunctive words "in respect of any carriage or goods"). But, at the time when the Railways Clauses Act was passed, it was evidently contemplated that railways should be great highways to be used either by the railway companies by their Own carriages and their own engines, or by any persons who brought on to a railway carriages of their own suitable to run upon the line. In order to bring the defendant company within the first part of section 97, they must shew that what they claimed were really tolls in respect of the carriages which they sought to detain, and the toll was really given in respect of the coal carried, not a toll in respect of carriages and coal, but a toll on the coal which had been carried and in respect of that only. The Legislature no doubt considered that it was most convenient to give toll upon the coal and not in respect of the carriage or on the carriage. The claim, therefore, under the first part of section 97 could not be maintained. And, as to the second part of that section, the company were only entitled to detain and sell carriages or goods which were on their premises belonging to the party liable to pay such tolls, whatever "tolls" might mean. Could it be said that they had any right in respect of these wagons, which, at the time when the action was brought, belonged no longer to the B. Co., but to the plaintiffs? In his lordship's opinion it could not. If the defendants had a right to detain they had power to sell the wagons, and, when the Act gave them power to detain and to sell carriages or goods belonging to the party liable for the tolls, it could not be said that they had power to do so as against another person who was the real owner of the carriages or goods. The interest of the B. Co. had been determined and come to an end before this action was brought and the plaintiffs' title had come to be one in possession. Although the original detention by the railway company might have been lawful, yet the continuing of that detention became unlawful when they were informed of the true ownerthip of the wagons and refused to give them up to the true owners on application by them. The damage would only be for detaining them after the real owners' title had accrued and they had required possession of their goods. LINDLEY, L.J., could not come to the conclusion that any toll was payable by anyone in respect of these particular trucks; it was payable only in respect of the coal carried therein. If the railway company could demand toll for hauling the wagons, they had not done so. They could

Re THE TRADE-MARK "NORMAL"-C. A. No. 2, 25th February TRADE-MARK-REGISTRATION-REFUSAL OF COMPTROLLER TO REGISTERAPPEAL TO HIGH COURT-REFERENCE BY BOARD OF TRADE-Patents, DESIGNS, AND TRADE-MARKS ACT, 1883, ss. 62, 90.

This was an appeal from a decision of Chitty, J. (30 SOLICITORS' JOURNAL, 688), the question being, whether a person whose application to register a trade-mark has been refused by the Comptroller of Trade-Marks is entitled to appeal at once to the court, as a person "aggrieved by the omission " under section 90; or whether, as provided by section 62, the refusal of the Comptroller is subject to appeal to the Board of Trade, whose decision is to be final, unless the Board shall think fit to refer the appeal to the court. Section 62 of the Act provides by sub-section 4 that "the Comptroller may, if he thinks fit, refuse to register a trade-mark; but any such refusal shall be subject to appeal to the Board of Trade, who shall, if required, hear the applicant and the Comptroller, and may make an order determining whether, and subject to what conditions, if any, registration is to be permitted." And, by sub-section 5, "The Board of Trade may, however, if it appears expedient, refer the appeal to the court; and, in that event, the court shall have jurisdiction to hear and determine the appeal, and may make such order as aforesaid." And, by section 90, "The court may, on the application of any person aggrieved by the omission without sufficient cause of the name of any person from any register kept under this Act, or by any entry made without sufficient cause in any such register, make such order for making, expunging, or varying the entry, as the court thinks fit, or the court may refuse the application." In the present case the Normal Co. applied to the Comptroller for the registration of the word "Normal" as a trade-mark, in respect of substances used as food or as ingredients of food. Acting under instructions from the Board of Trade not to register as trade-marks mere "dictionary words " as "fancy words" within section 64 (1) (c.), the Comptroller refused to register the word "Normal," and the company, considering that it was hopeless to appeal to the Board of Trade, applied to Chitty, J., to order the registration. The Comptroller took the preliminary objection that the court had no jurisdiction to deal with an application for registration which had been refused by him, unless the applicant had first appealed to the Board of Trade, and the Board of Trade had referred the appeal to the court. Chitty, J., allowed the objection. THE COURT OF APPEAL (COTTON, LINDLEY, and LOPES, L.JJ.) affirmed his decision. COTTON, L.J., said that the question was, whether section 90 of the Act gave an applicant for registration of a trade-mark whose application had been refused by the Comptroller a right to go to the court at once. The main argument for the appellant had been that section 5 of the Trade-Marks Act, 1875, acknowledged the right of an applicant whose application had been refused by the registrar to appeal to the court; and it was said that it could hardly be supposed that the Act of 1883 would take away a right, and therefore it was to be inferred that section 90 of the Act of 1883 must have been intended to give the same right as section 5 of the previous Act. But that right was simply a right under the Act of 1875, and the question was whether the Act of 1883 gave the same right. The words of the two enactments were different. In the earlier Act there was a specific reference to a refusal to register, and there were no other provisions as to appealing from the registrar. The appeal was necessary to the court in that case; but in the Act of 1883 that consideration could not apply. If the Comptroller refused registration, there was liberty to appeal to the Board of Trade. A special mode of remedying the grievance of the applicant being provided by means of an appeal to the Board of Trade, it would be wrong to say that he was aggrieved" by the refusal if he came first to the court. But it was urged that the Act of 1883 could not mean that there was to be an appeal only to the Board of Trade, because there must be cases of doubtful law and disputed facts, with which the legal tribunals would be better able to deal than the Board of Trade. It was, however, to be observed that the Act did commit large powers to the Comptroller and the Board, and it was not unreasonable 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 of State would exercise their discretion unreasonably, or that they would not, if necessary, refer a case to the court. They were not bound to do so, and, if a case were submitted to them in which the point had been clearly decided already, they would not send it to the court-but generally they would do so. If a reasonable question were raised, and the Board did not feel competent to deal with it, they would no doubt exercise their dis

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cretion by referring the case to the court. The object and effect of section 90 were to remedy defects in the register, and to enable the court to remove from it that which could not be the subject of a trade-mark. It was altogether a different question whether a particular thing was a trade-mark proper to be registered. It would be a strained interpretation of the Act to say that on such a question there was an appeal from the Comptroller to the court? when another mode of appeal was provided by the Act. LINDLEY and LOPES, L.JJ., concurred.-COUNSEL, Aston, Q.C., and Chadwyck-Healey; Sir R. Webster, A.G., and Ingle Joyce. SOLICITORS, Munns & Longden; Hare & Co.

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limitation then took effect. The right heirs of R. B. De Beauvoir, at the time of his death, were his three sisters and the five daughters of a deceased sister, of whom the only survivors, at the death of the tenant for life in 1883, were four of the daughters of the deceased sister. An action was brought by a person entitled to a share of the estate of one of the three sisters, claiming a partition or sale, and one of the inquiries directed by the judgment was as to the parties interested in the estate. The chief clerk's finding in answer to this inquiry was based upon the principle that the persons taking as right heirs of R. B. De Beauvoir at 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.

MORTGAGE ASSIGNMENT OF AFTER-ACQUIRED PROPERTY-UNCERTAINTY"ENTITLED UNDER ANY WILL "-DIVISIBLE CONTRACT.

A mortgagor assigned all the household goods and live and dead farming stock, tenant's rights and interests of the mortgagor of, in, or upon any farm now held, or which during this security might be held by him; also all real and personal estate to which he should become entitled under the will of his father; also all moneys of, or to which he then was, or might during that security become entitled under any settlement, will, or other document, either in his own right, or as the devisee, legatee, or next-of-kin of his father, or any person or persons; also a policy of assurance; also all other, the freehold hereditaments, goods, chattels, effects, debts, securities, documents, vouchers, books of account, fixtures and personal property of, in, or to which he was, or during that security should become beneficially seised, possessed, entitled, or interested, with power to enter and possess. By a second deed he assigned all the freehold hereditaments, goods, chattels, and effects, debts, securities, documents, vouchers, books of account, fixtures, and personal property of, in, or to which he was or during that security might become beneficially seised, possessed, entitled, or interested. Each of the mortgages contained an exception of the wearing apparel of the mortgagor and leasehold estate, but such excepted property was to pass on notice. The question was whether property subsequently acquired by the mortgagor as residuary legatee under a will was bound by the mortgages, or whether they were void for uncertainty. 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). The authorities were conclusive as to the part relating to property derived under any will, and the fund in question was, therefore, bound by the mortgages.-COUNSEL, Yate Lee; Byrne; Begg. SOLICITORS, Storey & Cowland for Crick & Freeman, Maldon, Essex; Duffield & Bruty; Paterson, Snow, Bloxam, & Kinder, for F. T. Veley, Chelmsford.

EDEN v. WEARDALE IRON AND COAL CO.-Kay, J., 27th February. PRACTICE-THIRD PARTY-INTERROGATORIES-"PLAINTIFF or Defendant" -RIGHT OF THIRD PARTY TO INTERROGATE PLAINTIFF-R. S. C., 1883, XXXI.,

1.

accordingly. A summons was thereupon taken out by the daughters of the deceased sister to vary the certificate by declaring that the right heirs of R. B. De Beauvoir took as joint tenants, the effect of which would be to make them solely entitled.

This

KAY, J., having taken time to consider the case, now decided that the right heirs took as joint tenants. His lordship, after stating the facts, said that the first question was whether the heirs took as persona designata or as co-parceners. The law was stated by Littleton (section 254) thus: None are called parceners by the common law but females, or the heirs of females, which come to lands or tenements by descent, for, if sisters purchase lands or tenements, of this they are called joint tenants, and not parceners," on which Coke's commentary was: needs no explanation." The term "purchase" here meant, of course, not "buy," but take by purchase, in contradistinction to descent. No authority had been cited to in any way contravene or throw doubt upon this statement of the law; indeed, the authorities such as Mounsey v. Blamire (4 Russ. 384) and Swaine v. Burton (15 Ves. 365), which were recognized in De Beauvoir v. De Beauvoir (3 H. L. C. 524), established the proposition that a direct bequest or devise to the heirs of a third person to whom no estate was given was a gift to the heir or heirs as persona designatæ. It was argued that section 4 of the Inheritance Act might make a difference, but the object of that section was merely to provide in what course land was to descend where the purchaser did not dispose of it, not to alter the estate taken therein by the purchaser himself. To meet this an ingenious argument was founded on section 3 of that Act, which, it was said, in providing that, under a devise to an heir, he was to be considered to have acquired as devisee, and not by descent, made co-parceners take as persona designatæ, and, therefore, it was argued they would, as joint tenants, take a different estate from that to which they would have been entitled under the old law if the descent had not been broken; thus, in effect, altering the purchaser's estate. He was not, however, dealing at present with section 3, but with section 4, which, in 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 summons.-COUNSEL, Horton Smith, Q.C., and R. F. Norton; Marten, Q C., and H. Lake; Smart and S. A. Sampson. SOLICITORS, Lake, Beaumont, & Lake; Parkin, Woodhouse, Trower, & Freeling.

SHAFTO v. BOLCKOW, VAUGHAN, & CO. AND THE ECCLESIASTICAL COMMISSIONERS-Chitty, J., 26th February.

The Ecclesiastical Commissioners had been brought into the action as third parties, and orders had been made giving them leave to defend and deliver a counter-claim. The counter-claim was struck out by the Court R. S. C., 1883, XXV., 4-STRIKING OUT STATEMENT OF CLAIM-INJUNCof Appeal, and the commissioners obtained leave to withdraw their defence. An order was then made that the question between the commissioners and the defendants should be tried after the trial of the action; and that the commissioners should be at liberty to appear at the trial and oppose the plaintiff. The plaintiff obtained leave to administer interrogatories to the commissioners (Eden v. Weardale Iron and Coal Co., 35 W. R. 235), and the commissioners now applied for leave to interrogate the plaintiff.

KAY, J., said that he was bound by what the Lords Justices had said in Eden v. Weardale Iron and Coal Co. (33 W. R. 241, 28 Ch. D. 333), and must hold that the commissioners were not defendants. They were clearly not plaintiffs, so that they did not come within ord. 31, r. 1, and he could not give them leave to deliver interrogatories, although they could themselves be interrogated to any extent.-COUNSEL, Blakesley and Dunham. SOLICITORS, White, Borrett, & Co.; Crossman, Crossman, & Pritchard, for Trotter, Bruce, & Trotter, Bishop Auckland.

BERENS v. FELLOWES-Kay, J., 1st March. Settlement-ConsTRUCTION LIMITATION TO RIGHT HEIRS OF STRANGER Co-HEIRS, WHETHER TENANTS IN COMMON OR JOINT TENANTS-INHERITANCE ACT (3 & 4 WILL. 4, c. 106), ss 3 AND 4.

This case raised a curious question, on which it appeared that there was no direct authority-viz., as to the effect of a limitation by settlement to the right heirs of a person who had no estate of his own in the property so limited, the question being whether, there being co-heirs, they took the estate in the same shares and with the same incidents as if they had acquired it from an ancestor on an intestacy, or as if they had been 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 that they settled an estate belonging to them, called the Downham 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 in the Downham property. The nephews having elected to take under the will, by an indenture of the 29th of January, 1856, they duly settled the Downham Estate as directed by the will of R. B. De Beauvoir, the ultimate limitation being "to the use of the right heirs of R. B. De Beauvoir for ever." The last tenant for life under this settlement died in 1883, and, the preceding limitations having all failed, the ultimate

TION AGAINST LESSORS IN RESPECT OF ACTS BY LESSEES. This was a summons by the defendants, the Ecclesiastical Commissioners, under R. S. C., 1883, XXV., 4, for an order that the plaintiff's statement of claim might be struck out as against the applicants, on the ground that it disclosed no reasonable cause of action against them. It appeared that the plaintiff was tenant of certain copyholds held of the Manor of Bondgate, in Auckland, and that the applicants were lords of

the manor.

The statement of claim alleged that there was no custom of the manor entitling the lords thereof, or persons claiming under them, to get or work the minerals under the copyhold lands of the manor without the consent of the tenants thereof, and that the defendants, Bolckow, Vaughan, & Co., claiming to do so under some lease from the Ecclesiastical Commissioners, had, without such consent on the part of the plaintiff, wrongfully got coal under the plaintiffs' lands, and that the Ecclesiastical Commissioners wrongfully alleged that they were entitled, by themselves and their lessees, to do the acts complained of, and, in fact, justified, and approved of the acts of the defendant company, and alleged that the company, as claiming under the said lease, are received, and claimed to be entitled to receive, from the company rents and were entitled to commit such acts, and that the commissioners had and other dues, and the plaintiff claimed against the defendants injunctions and damages. The applicants submitted, in support of the summons, that there was no precedent for joining a landlord in respect of acts by a lessee under a lease, the legality of which lease was not disputed, and that a mere allegation of wrong would not be permitted as a reason for joining defendants for the mere purpose of discovery, and accounted for their desire to succeed on a technicality on the ground that an investigation of their title deeds would cost the applicants £2,000.

CHITTY, J., said that the statement of claim in substance set up the case that the applicants claimed the right to do the acts sought to be restrained either of themselves or by their lessees. To try such a question in the absence of the applicants would be most inconvenient, and the plaintiff was, in his lordship's view, entitled to join the applicants, not only on the ground that they had a large interest, but also because they claimed a right. The cases of Hext v. Gill (20 W. R. 957, 7 Ch. 699) and Tipping v. Eckersley (2 K. & J. 264) shewed that defendants who claimed a right could be joined, although they had not exercised such right nor done the wrongful acts. That the applicants claimed the right was, in his lordship's judgment, quite sufficient ground

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