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COVENANTS RUNNING WITH THE LAND.
(II.) COVENANTS IN GENERAL (concluded).

Iiv 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 hmq/ii5.——It frequently happens that a yendor of land
wishes to obtain some advantage for other land which he ret&1I1B-
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. 16-L). There, upon the conveyance of lands to A., ii
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 Gresswell, 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 W'illes,
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 Bridg-
nor1h(1863, l5 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 Austcrberry v. Corporation of Old/mm (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 (I878,
26 W. R. 754). It is to be noticed, too, that the matter does
not now depend upon the form of the covenant—i.c., whether
assigns are mentioned or no ; for by the Conveyancing Act, s. 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 efiect as if heirs and assigns were expressed.
in 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 What-
man 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 Talk v. Jll'o.v/m_y, but Sir Lancelot Shad-
well, V.C., had no difiiculty in holding that the agreement, though
personal to the parties executing the deed, was nevertheless
binding on all coming in with notice. So in Colea v. Sim: (1853,
Kay, -56, 5 D. M. 8: 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 sub-
sequent 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, 31 L. J. Ch.
398) is an instructive case of the same kind. A. laid his estate
out for building. He demised lot 2:. to‘B. for an inn and
covenanted to have no other on the estate. Lot 3/. he let to C., who
covenanted not to use it for the sale of beer &c 3 b Y

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

where this is so there is little difiiculty in enforcing the covenants yelating 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 tlli1ere_is_a genfiral plan, and each purchaser in turn binds himself, t 18,18 in i set a reason why he should have the benefit of the vendor s covenan as against the rest, and so it was held in Child v. Dmlglafi (1354, KEY» 560). But the whole matter was discussed and the cases carefully examined in Kaatea v. Lyon (1869, 5 Ch. 218). T1(jere‘A. conveyed land to B., who covenanted as to the nature an fipyue of the buildings to be erected. There was no general bui iug plan, but A. conveyed other plots to G. and D. C. and D. were not shewn to have entered into any 0<We11B-I1t9- S\1b59l1“el1l"l_Y bought back the land from B. ; and C. and D_. Bought til mmljtzfin that it was still charged in the hands of A. with the bu en If _ 6 covenant for their benefit. The court, after referring todt e mfluence of Tulle v. h[o.rhn_1/ on the burden of covenants. 5'11 -—_'

“ The questions which have arisen with respect to the davolutionzof the benefit of covenants of _this kind have been decided upmli. 51:11? 4" principles, and equally without reference to any techmca iihlfi; tion: depending on the covenants running or not running wi land.”

Then, after examining Whatman v. G'lb80)‘l, Gales v. Slfl|5,d8l;d Western v. 1lIacDarmott (1 Eq. 499), Selwyn, L.J., procee e o Balltln all these cases lhe judymcnt of the court is based upon clear evidence of intention and contract, supported by mutual covenants, and relating to a particular and dqfined portion Of 14:24 “.9””d 1° be laid out and dealt with according t0_a prcecrzbad plan. th

In Mann v. Stephens there was indeed no generalplan. but 9}“ were, at least, covenants by each purchaser. But in the 21:30 13 question neither of these elements was present, and_the cop 8111 that the contention that the benefit of the covenant 151 ”_° _°‘T“5e' attached to the land, is unsupported either by Pfmml? ° O; authority, and would greatly interfere _with the free_ahenation p landed estates. Thus it appears that it is comparatively e8/Bi ° make the benefit of covenants run with difierent plots where tfliifi is a general plan of building , but otherwise it is necessary, $1 ed that the purchaser should have had notice of the covenau slut made its benefit part of the subject-matter of his purchase,‘ 01‘ 28 he should have bound himself by a similar covenant. O cvllgt the plan of building must be actually fixed at the commengelfllz U; but in Sclzreiber v. Creed (1839, 10 Sim. fl) it was to be su fiechad alteration by the vendor; hence theoriginal purchasers W 0 dot covenanted in accordance with it had no remedy when the V611 afterwards sold other plots subject to different covenants._ b _

It must not be supposed, however, that covenants will I9 9; forced in" equity regardless of change of circumstances. tT:_ A indeed, pointed out by the Real Property Commissioners ( “ts Report, p. 55) that one great advantage of leaving ‘}°"e“°‘:ld entirely to equity lay in the elasticity with Wl110_l1 eqmtll’ ‘*3 at treat them, an elasticity not possible if they ran with the $1111 e law. The court might thus refuse to enforce them _Wl16!1 gdwgit of circumstances or considerations of public l1°Y m de rd desirable. A good instance of this is afiorded by D111“? Of Bfihe v. Trustees of British llfuseum (1822, 2 My. &K- Q5?) where M trustees were allowed to build in violation of the original coveniff A inasmuch as the successors of the covenantee had tllelgse it permitted the character of the rest of the estate to be_ altere1- I any rate, Lord Eldon, who called to his assistance S11: T- P ljimié M.R., declined to interfere, and left the Duke to his reme y law.

(3.) Covcmmts for title and for the production of title deal?-To With regard to covenants for title, we have, of course, 011 in consider the benefit of the covenant as running with the landhfifghé There is no question of tho burden binding any land Whlc his vendor retains ; it falls only on the vendor and those wltake d estate, real or Personal. But, so far as the benefit is couoerlfiicfi this runs with the purchaser’s land according to the rules W. 1 it have been laid down for covenants at law generally—-that 15*. runs on the ground of privity of estate. This W85 Beltjedfizg Miildlemore v. Goodale (1639, Cro. Car. 503). There G- 611M J. S., and covenanted for further assurance. J . S. conveyed) d who requested G. for further assurance to levy a fine. G. refuse“;

. but it was held that the covenant ran with the land» “ad 5° he W

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Mar. 5, I887. THE SOLICITORS’ JOURNAL. 299

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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.

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 covenantes, 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, acovenant 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 uses.

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 laud 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 tile 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 "fry useful reform by substituting for the old covenants an 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 "6'? '-Wfifully defined in section 9, and we need not here reproduce them. The general effect, however, is to make the legal right t° P1’°dIt}0u_ co-extensive with the equitable right. Also the P°"°1181 liability of the original covenantor ceases upon his p'°P°'lY parting with the documents, and his obligations are Efansferredto each subsequent possessor, but for the period only of T: P°588B810n (Wolstenholine & Turner Conv. Act, note to s. 9).

9 manner in which this matter has been settled may well arouse $Kr91i_ that the many other vexed points with respect to covenants

timvghich we have referred could not have been settled at the same

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THE SOLICITORS’ PRELIMINARY EXAMINATION.

AT the recent general ineetin '

- g of the Inco orated Law Society the gmipt stated that the council had made rgertain alterations in the meet of°;B_ {$8 the preliminary examination which would have the the ind 8815:1113 its standard, but, as the regulations were then before hem, wietvh 9 W8-s_unable to enter into details. We have not as yet 1,-mm or wh etr I‘-11? Judges have dissented from the proposed alterammt» to the their precise nature is. Pending an oflicial announceaccount of ti: effect, it may not_ be uninteresting to give a short

Up to th 9 P'@1"1nnary examination.

necessary allzdyear l8o0 no examination previous to articles was was requiired H3 Particular amount of knowledge of any description entirely to tfiemh E116 Oourse of studies pursued in the oflice was left mm of thin 0bOl06 of the pup_il. This was a highly unsatisfactory become a mfi“'-townie, in order to enable a person seeking te 1118-liner hejhmulr l’° P°!'f0fm his professional duties in a proper

’ ° d, before he enters into articles, possess a good

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general education on which to build future acquisitions of legal and
other knowledge. It was also necessary that something should be
done towards the education of solicitors in general knowledge for
the purpose of maintaining their position among the learned profes-
sions.

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 providin
for the special education of a solicitor, a stringent examination should
be required in general knowledge previous to admission to apprentice-
ship—that this examination should embrace, in addition to the
ordinary acquirements of the so called “commercial education,” a
competent knowledge of Latin, geography, history, the elements of
mathematics and et ics, and one or more of the modern languages.

No steps appear to have been taken in pursuance of this recom-
meiidation 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
holding 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
of persors who had passed various university and other examina-
tions. Certain judges were also authorized to exempt, either wholly
or partially, from the examination, or subject to any conditions
they might think fit to impose. The Act also contained n provision
to the effect that certain persons who had been clerks '0 solicitors
for ten years might enter into articles for three years. It seems to
have beena popular delusion that such persons were, as of right,
entitled to exemption from the preliminary examination, and this
idea was fostered by the late Chief Baron Kelly, who granted
dispensing orders to all persons who applied to him for them, and it
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
given per-iod~generally twelve months—but the articles are not
enrolled or registered until the clerk has passed the preliminary
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 acquaint-
ance 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 iii contact _with
all classes of the community, and in his intercom-s_e with his clients
it is essential that he should be able to comport himself as a gentle-
man, 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 'pl:€lll]J.I.l!Bl‘y.
Many of those are of a very elementary character, and it is obvious,
therefore, that it is comparatively useless to raise the standard of
the preliminary examination, unless the standard of those examina-
tion be raised to the same level. It is, however, believed that there
would be great dificulty 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 exammation. The general
exemptions should be confined to the matriculation examinations at
the universities.

As the Acts of Parliament stand, there is nothing whateverto 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 standsrd 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 ansmg may be remote.

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CORRESPONDENCE. TRANSFER OF BEERHOUSE CERTIFICATES. [T0 the Editor of the Solicitors’ Join-naI.]

Sir,--While uite 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. 6| ; section 14 being that providing for emergencies other than simple transfi 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 diflicult 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 blacklieath 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, mututia mutundia, 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 & -16 Vict c. 3-1, 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. Wstraa SCADDING.

23, Gordon-street, Gordon-square, W.C., March 1.

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Sir,—It is with some surprise that I find the writer of the instructive articles under this heading uietly accepting the decision in Lulrer v. Dennis. I expected to find him dcnouncingit energetically. May I shortly re-state its purport P 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 u di:[}'erent 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 ’l'ull- v. Mu.rha_q 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 explmm, tion repeatedly given that ‘lull: v. Morbuy 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 Lllli‘0T v. Den-nz'.i 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 frcchblder be lool-red upon as having different rights from those of another assignee ? But if he is bound, what a monstrous thing it is l

It is a great pity that decisions so unreasonable, ine uitablc d

vicious stand, owing to the mercy of a poor litigant vilhose conrlixge or irlieans fall short of the Appeal Court. Your approval makes one th ' ‘ -

e ess 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 ma soi

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[The object of the articles is to state the law, not to criticize or approve it. It appears that, while most other points have been simpli_ fied and settled bystatuto. the Lcgislaturehas not yet ventured t t the rules relating to the burden of covenants. If it everd 0 mile effect these have had on particular trades may have to be cities 'sd), ll It seems clear, however, that the doctrine of Lulcer vnsiI)i:';“.; (7 Ch. D. 227)_wou_ld not have the extreme effect which our correspendent fears in his hypothetical change of circumstances St t d

riefly, the case was as follows. A., a brewer let a ubl' 11 a e. to B. B. already had a lease of apublic-hoiise fl-) 18- 0111801: lease of ac. B. covenanted to get all the beer forqi 410$ if H tAe This covenant, therefore, was collateral to the l In n 3/. mm '

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This was an appeal by the plaintiff from the decision of the Divisional Court (Wills and Grantham, J,I.), reported 3:1 W. R. 739. The defendant had recovered judgment against one Williams, upoii _wh\ch execution was issued, and certain goods in the possession of Williams were seized. The plaintiff, prior to 1884, had let the goods in question to Williams; but in that year he became bankrupt._ His trustee in bankruptcy did not know that he had the property in question, and he coiicealed the fact from his trustee, but continued to receive payment for the hue of the goods. Upon the goods being seized he claimed them. find 811 inierpleader 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 plaintiffs trustee iii bankruptcy defeat the plaintiff 8 claim. The Divisional Court reversed this decision on the ground tlgait the execution creditor, being, pi-una frwte, in possession, he could iihew; tun: the plflllliilfialllfld no right to the goods, and could set up the tit e o e trustee for ispurpose. .

Tun Coiinr (Lord Esniza, M.R., Bows»: and Fair, L.JJ .1, iipheld this decision, but on other grounds. _Lord Esiixiz, llI.1_l., said _at it $1?! incorrect to say that the_execution creditor was in possession. ‘is shei-ifl’, upon seizing‘, was in possession as the ofilcer of the court, $2 his possession was t e possession of the law, and not of either party. h IE question to be decided was whether_at the moment before the s ‘fill seized the goods the claimant had any right to them. The fight Wl-11;: k° undoubtedly had at the time he 1_et the goods had passed on hisl _ an ruptcy to his trustee. The exection debtor had paid rent to the c Blmlillt since the bankruptcy ; but that would only create an estoppel I}! 585,3: him and prevent him from'saying that the claimant had no title. _ is executioncreditor did not claim through the execution debtor, but élgfléllflt him by the operation of law, and therefore the estoppel did no a liim, nor did the estoppel create any interest in the claimant in the 530“;He had, therefore, no claim as against the 6§€Cl1ti0l1_Ol'6(l.lt05.lBl1I_ 6 appeal must be dismissed. -4 Ccrxsiii, R. I. lhlllmm-1, '"’°‘""Somcirons, Garter 4- C/mrcli ,- Richard White, for J’. R. Rwliards, Swanlfim

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<7 This was an appeal from a decision of Bacon, (34 R' ‘Fags; Ch. D. 477, 30 501.10:-ions‘ J0uii:~:.ii., 337), the question_bB1PB “B $1845 construction of section 97 of the Railways Clauses Consolidation Ac ‘,1 dug which provides that, “ If, on demand, any person fail to PR)’ the t° E to in respect of any carriage or goods, it shall be lawful for the comlllh Yaw detain and sell such carriage, or all or any part of such E°°ds' °r' to same shall have been removed from the premises of the comP::lYO-H _ detain and sell any other carriages or goods within such premises big“ iiig to the party liable to pay such tolls, and out _of the moneysll; and from such sale to retain the tolls payable as aforesaid, and all chiirgi f the expenses of such detention and sale, reiideriiig the overplllfii IfY1 °5hun nioncys arising from such sale, and such of the carriages 0! B°°d5l“; r the remain unsold, to the person Ofltlllfd thrreto, or it shall be lawfu t0com_ company to recover any such tolls by action at law.” The dcieiidan any Pan)’ had detained certain wagons, the ProP@rt_Y 05 the P1lmf fiilmpco ' but which had been let by them to a company called the B. Col iery thé under a hiring agreement, claiming a lien on them for tolls due frotlge in B. Co. By the agreement the plaintiff company let l00 WB8°Ps F0 wen; (Jo. for three years, at a rent payable quarterly. T110 Plmntlfis to authorized, in case of a quarter's rent being in arrear for seven dayfiose seize the wagons and put an end to the agreement. The B. 00-, W

s’ JOURNAL. g g 301

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oolliery was connected With the defendant company’s railway by a not, therefore, justify the detention of the trucks, sim ly because there siding, sent coal in the 100 wagons from their colliery over the was no toll due in respect of them. The aplpeal, therefore, must be

siding and on to the railway for transit to their destination, the locomotive power being supplied by the defendant company, who sent their engines or 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 tho B. Co., charging against each wagon-load a sum for carriage, made up of a charge (authorized by the railway compariy’s special Act) for the use of the line, and an additional charge for the supply ol locomotive power. In February, 1885, the B. Co. having become insolvent, andt e sum of £237 7s. 10d. being claimed by the defendant

allowed. LOPBS, L.J., said that when the Ra‘ ways Clauses Act was passed it seemed to have been contemplated that private owners would not only run their owii 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. Ho 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 scll a carriage or 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

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Appeal reversed the decision (anu, p. 124). The appeal! was afterwards 13¢ THE TRADE-MARK “ NORMAL "-0. A. No. 2, 25th February

heard on the other point.

Tris Coon or Arraar. (COTTON, Lrrmrsr, and Lorss, L.JJ.) reversed T the_ decision on this point also. Cor-roy, L.J., said that section 97 was dividedinto two parts. The first part provided that where there was a toll dnei n respect of any carriage or goods, the railway company, before

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This was an appeal from a decision of Chitty, J . (30 SOLICITOBS'JOUl?-NAL,

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 ii right to toll, might demand payment, and if payment of that tr

ade-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— hat is e ore

under section 90; or whether, as provided by section 62, the refusal of

t ' b f ‘hf! left the premises of the railway company or got out hf their the Comptroller is subject to appeal tothe Board of Trade, whose decision

possession. Then the second part of the section provided, “ Or, if is the sam_e shall have been removed from the premises of the company, to to detain and sell any other carriages or goods belonging to the

to be final, unless the Board shall think fit to refer the appeal the court. Section 62 of the Act rovidcs by sub-section 4 that “ the

Comptroller may, if he thinks fit, reguse 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 ap eal 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 Palfhoular 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- re

gistration is to be permitted.” And, by sub-section 5, “ The Board of

M568 during the period for which they had been, without having been Trade may, however, if it appears expedient, refer the appeal to the 1'9111°Ytd, 1i_i 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 Pflyflhlcbefore the properfy—the carriages or the goods—-last came into section 90, “ The court may, on the application of any person aggrieved {he possession of the railway company. Their claim was limited to the by the omission without sufficient cause of the name of any person from

“fit ""109, the last Journey perrormed, to t-he claim which they had

any register kept imder this Act, or by any entry made without sufiicient

W ile 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

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varying the entry, as the court thinks fit, or the court may refuse the

tooupossession of t e railway company, having gone from their possession ap lication." In the present case the Normal Co. applied to the

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mptroller for the registration of the word “ Normal " as a trade mark

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Sm.‘ "1 1'"P9Ct_of any toll due to them for the last jo1irney—~that is, in respect of substances used as food or as ingredients of food. Acting "F1113 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 “"1"” Company? The question was, whether it could be said that there mere “ dictionary words " as “fancy words " within section 64 (1) (c.), the gm ‘"1? tolls due in respect of these wagons, or any of them? It was Comptroller refused to register the word “ Normal," and the company,

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part of that section, the com an were onl entitled to detain and igltffiflgges or goods which were an Their prenhses belonging to the Ea mid :,mtt° PB? Such tolls, whatever “tolls " might mean. Could it time whe $9)’ had any right in respect of these wagons, which, at the but to tale siflotion was brought, belonged no longer to the B. Co., defmdautshpalfltiffs? In his lordship's opinion it could not. If the when the A id a right to detain they had power to sell the wagons, and, bakmgin tcthgave them power to detain and to sell carriages or goods had powgg 9 Party l1ab_e for the tolls, it could not be said that they of the carriaodo 8° as against another person who was the real owner and come fies °1' 80051‘. The interest of the B. Co. had been determined time had co Bél end before this action was brought and the plaintiffs’ by the railwlge O b° (1118 in p0s.se8Bi0!]. Although the original detention detention be Y ¢°111Pany might have been lawful, yet the continuing of that ship of the fame ufllflwful when they were informed of the true ownerapplicafion hagggfl Bud refused to give them up to the true owners on alter the realy em; _'-The damage would only be for detaining them their goods Ogners title had accrued and they had required possession of was payablé b 11~EY,_L.J., could not come to the conclusion that any toll only in M “£7 *;!1Y0IiB in respect of these particular trucks ; it was payable demand tofi f °h the coal carried therein. If the railway company could °r "“lm8 the wagons, they had not done so. They could

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The words of the two enactments were diflerent. 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 P651531 if he dame first to the court. But it was urged that the Act of 1883 could not mean that there was to he 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 tho Comptroller and the Board, and it was not unreasonable that questions relating to registration should be left to be de<(.-iided in thfi one way pointed out: It would be wrong to suppose that a gpar 11131‘! of State would exercise their discretion unreasonably, or that td iy gs so not, if necessary, refer a case to the court. They were not boun 0 I 1 , and, if a case were submitted to them in which the point had been c ear y decided already, they would not send it to the court—but ge11eIflU)_'dfl1°% would do so. If a reasonable _question were raised, and the Bzillgl 51$. feel competent to deal with it, they would no doubt exerc .

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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 diflerent 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. LXNDLBY and Loves, L.JJ., concurred.—-Coonssi, Aston, Q.C., and Chudwyck-Henley; Sir R. Webster, A.G., and Ingle Joyce. SOLICITORS, Manna ti Lonodm ; Hare Q Co.

Ra CLARKE, COOMBE v. CARTER-Kay, J., 17th, 21st, and 26th February.

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A mortgagor assigned all the household goods and live and dead far ing 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 devises, 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 free

old hereditaments, goods, chattels, and efiects, 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 Y. 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.—Coui-<'sai., Yate Lee ; Bymo; Beyg. SOLICITORS, Storey if (lowland for Crick 4 Freeman, Maldon, Essex; Duflield Q Bruty; Paterson, Snow, Blozam, 5- Kinder, for F. T. Velay, Chelmsford.

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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 of Appeal, and the commissioners obtained leave to withdraw the' 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 (Edm v. Woo:-dale Iron and Coat Co., 35 W. R. 235), and the commissioners now applied for leave to interrogate the plaintiff. _

Kn, J ., said that he was bound_by what the Lords Justices had said in Eden v. Wear¢lala Iron and 00.4100. (33 W. R. 241, 23 Uh. D. 333) and must hold that the commissioners were not defendants. Theyiwere 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 extei:t.—Oouss2i., Blakesley and Du_nham. Soiiciroas, White, Barr-ett,_ 4- Go. ; Crossmlm, Crossman, 4' Pntchard, for Trotter, Bruce, Q Trotter, Bishop Auckland.

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This case raised a curious question, on which it appeared that the;-8 was no direct authority—viz., as to the effect of a limitation by settlement I0 the right heirs of a person who had no estate of his own in the property so l1T1Jli€d.,.i.l18 question being whether, there being co-heirs, they took the estate in the same shares and with the same incidents as if the had acquired it from an ancestor on an intestacy, or as if they had beei actually inserted by name in the settlement. lt. 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 Downhgm 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 inthe Downham property. The nephews having elected to take und the will, by an indenture of the 29th of January 1856 they dul settled the Downham Estate as directed by the will of'R B,De Beauzoi ti ultimate limitation being “to the use of the right heirs of R Br, De lileauvoir for ever." The last tenant for life under this settlementldi d in 1883, and, the preceding limitations having all failed, the ultimdte

limitation then took eilect. 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 lite 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 persons who respectively represented the three sisters, and he certified 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.

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 designates or as co-parceiiers. 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: “ This needs no ex lanation." 'Ihe term “purchase” hers meant, of course, not “buy,”%ut 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 Mounsay v. Blamire (4 Russ. 381) and Swaine v. Burton (15 Vcs. 365), which were recognized in De Beauvoir v. Do Beauvoir (3 H. L. O. 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 persomc designate. It was argued that section 4 of the Inheritance Act might make a difiereneo, 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 foimded 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 devises, and not by descent, made co-parceners take as p£T60Ilt8 deaigmz-tw, 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 efiect, altering the purchaser's estate. He was 11°F. however, dealing at present with section 3, but with section 4, which. 111 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 Blfl11lIl0DS.—-COUNSEL, Horton Smith, Q..C., and R. F. Norton; Harlem Q. C., and H. Lake ; Smart and S. A. Sampson. Somciroas, Lake, Bermmont, Q Lake ,- Pnrkin, Woodhouse, Trower, Q Freeling.

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This was a summons by the defendants, the Ecclesiastical Coma!!!sioners, under R. S. 0., 1883, XXV., 4, for an order that the plsintiifs statement of claim might be struck out as against the applicautsv ‘"1 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 0!. the manor. The statement of claim alleged that there was no_ custom of the manor entitling the lords thereof, or persons claiming lmdef them, to get or work the minerals under the copyhold lands of the mane! without the consent of the tenants thereof, and that the defendants» Bolckow, Vaughan, 8: Co., claiming to do so under some lee-Se fl‘-lm the Ecclesiastical Commissioners, had, without such consent on the Part of the plaintiif, wrongfully got coal under the plaintiffs‘ 18-1113!. Budthat the Ecclesiastical Commissioners wrongfully alleged that the? ""9 entitled, by themselves and their lessees, to do the acts complained Of, and, in fact, justified, and approved of the acts of the deieiidant company, and alleged that the company, as claiming under the said lea-86. 5;; and were entitled to commit such acts, and that the C01BI:l1lS8l0llBf5 ll received, and claimed to be entitled to receive, from the c0I11?°“,7 fen“ and other dues, and the plaintiff claimed against the defendants injunctions and damages. The applicants submitted, in support of the summons, that there wus no precedent for joining a landlord in respect Of $1“ by alessee under a lease, the legality of which lease was not dis?“ ' and that a mere allegation of wrong would not be permitted as a reasoia for joining defendants for the mere purpose of discovery, and B°<f°l1"m, for their desire to succeed on a technicality on the ground that an inWB91' gation of their title deeds would cost the applicants £2,000.

Ciiirrr, J ., said that the statement of claim in substance set up the case that the applicants claimed the right to do the acts s0u8M W be restrained either of themselves or by their lessees. To try such aqwié tion in the absence of the applicants would be most inconvenient, an the plaintiff was, in his lordship's view, entitled to join the BPP11“”“' not only on the ground that they had a large interest. buElm befmusg they claimed a right. The cases of Hort v. Gill (20 W. R. 9:27, t Oh. 699) and Tipping v. Eckersley ('2 K. & J . 264) shewed that defendants who claimed aright could be joined, although they Mli no exercised such right nor done the wrongful acts. That the BPPh°“n':5

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. claimed the right was, in his lordship's judgment, quite suflicient gr<>

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