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contraband of war. This, however, was not conceded, and the United States and Spain are alike at liberty to put in force the ancient laws of maritime warfare, and to search neutral ships for enemy's goods as well as to authorize the employment of privateers. It is announced that the United States will declare against privateering, and, in the interests of neutral commerce it is to be hoped that they will waive the right of search as well, except for contraband goods. It would be difficult then for Spain not to follow their example.

peace.

ASSUMING THAT the belligerents will claim to exercise the right of searching neutral vessels only for the purpose of finding and seizing goods which are contraband of war, there is still room for great doubt what articles fall within this category. GROTIUS divided goods into three classes-the first including things which are useful only for the purposes of war; the second, those whch are not useful for such purposes; and the third, those which are capable of indiscriminate use in war and in As to the first two classes there is no uncertainty. Goods in the first are clearly contraband, those in the second as clearly not. Goods in the third class are, according to the same authority, contraband or not according to the existing circumstances of the war. It is obvious that, on this principle, many classes of goods which are prima facie of a peaceful nature may become contraband if they are intended to be used in a manner which will prolong the war. Thus, although provisions generally are not contraband, yet it was laid down by Lord STOWELL in The Jonge Margaretha (1 C. Rob. 192) that they may become so under circumstances arising out of the peculiar situation of the war, or the condition of the parties engaged in it. But an attempt in 1793 by the English Government to extend this principle by stopping all vessels laden with corn, flour, or meal bound to any French port was followed by claims for indemnity on the part of American owners which had to be satisfied. Without laying any such sweeping embargo upon provisions or other goods destined for the maintenance of a belligerent nation, it is sufficient to use the test whether the articles are actually destined for military purposes, and provisions intended for the use of the army would be so included, but not otherwise. For practical purposes the question is of most importance, perhaps, with respect to coal. In the Franco-German war the British Government, against the remonstrance of Germany, permitted the export of coal to France, though not to the French fleet in the North Sea-and this was right. Coal is clearly a commodity which will be contraband or not according to circumstances. If destined for the use of a belligerent fleet, it is a powerful engine of war and is liable to confiscation.

A MAN named BACH, of German nationality, was brought before the chief magistrate at Bow-street for extradition a few days ago under unusual circumstances. A fortnight previously he had been committed for extradition on certain charges of larceny and other offences, said to have been committed in Germany; but he had not yet been handed over to the German police, as the Extradition Act of 1870 forbids the surrender of a fugitive till the expiration of fifteen days from the date of his being committed to prison to await his surrender. During this time he has a right to apply for a writ of habeas corpus, and so to test the legality of his surrender, and it is the duty of the magistrate to inform him of this right. The Act further provides that a fugitive shall not be surrendered to a foreign State unless the law of that State provides that he shall not be tried for any offence committed before his extradition other than the crime on proof of which his surrender was founded. In the present case it appears that, after BACH had been committed, the German authorities discovered that he had committed a number of other offences, for which they desired to be able to try him in Germany. In order to do so, however, they were obliged to have him committed for surrender on these charges as well as on those first brought against him, and the question arose how the accused was to be brought again before the magistrate. A Secretary of State has power, at the end of the fifteen days, to issue his warrant to the gaoler ordering him to hand over the fugitive to the officers of the State which has asked for

his surrender. There, however, his jurisdiction ends, and the gaoler can only act in obedience to such a warrant or in obedience to a writ of habeas corpus. A writ is, of course, frequently granted in order to test the legality of the surrender, but in this case a writ was granted ad respondendum, ordering the governor of Holloway Prison to take his prisoner before the magistrate to answer the further charges. It is said that this is the first occasion on which this writ has been issued under such circumstances.

JOHN KENSIT can approve of the means he took for gaining FEW OF the persons who sympathize with the objects of Mr. those objects. He was convicted and fined under section 2 of 23 & 24 Vict. c. 32, which makes any person liable to a penalty who is "guilty of riotous, violent, or indecent behaviour" in a church, "whether during the celebration of Divine service or at any other time." The witnesses for the prosecution were crossexamined with the view of shewing that the service which was Proceeding at the time of the disturbance was illegal. An attempt was made to stop this line of cross-examination, but the magistrate very properly held that if the prosecution charged the defendant (as they did) with misconduct during the celebration of Divine service, the defendant was entitled to shew that the service was not "Divine service" within the meaning of the Act. It was admitted by the witnesses for the prosecution that the order of the service which was disturbed tained in another book. Now, the Act of Uniformity (1 Eliz. c.. could not be found in the Book of Common Prayer, but was con2, s. 4) provides that the form of worship contained in the Book of tained in another book. Now, the Act of Uniformity (1 Eliz. c. Common Prayer shall be used in all churches, and that no other forms liable to heavy penalties. The magistrate, therefore, form shall be used, and it makes a clergyman using other form shall be used, and it makes a clergyman using other seems to have had ample justification in law for refusing to hold that Mr. KENSIT was guilty of misconduct during the celebration of Divine service. The statute, however, it will be seen, provides that a disturber may be punished precisely in the same way whether the disturbance took place during Divine service or at any other time." The point therefore was of no avail in saving the defendant from the maximum penalty of £5, which he was condemned to pay.

COMPULSORY SALES AND COVENANTS RUNNING WITH THE REVERSION.

THE immense increase in our population during the past fifty or sixty years and a rapid growth in commercial prosperity, while favouring the nation as a whole, have in some few instances operated as a distinct hardship. Perhaps no class has been hit harder than landowners and their lessees. After having enjoyed years of undisturbed possession, they suddenly find themselves turned out of their belongings by some public company or body on the excuse that a railway must be run through their property, or a site be found for educational purposes. One of the earlier cases in point is that of Baily v. De Crespigny (L. R. 4 Q. B. 180). The facts were shortly as follows: A. leased some land to B. for a term of eighty-nine years and retained the adjoining land, convenanting that neither he nor his assigns would during the term erect any but ornamental buildings on a paddock fronting the premises demised to B. A railway company took the paddock under compulsory powers and built a station upon it. It was held that A. need not observe his covenant. "The Legislature," said HANNEN, J., in delivering the judgment of the Court of Queen's Bench, "by compelling him to part with his land to a railway company whom he could not bind by any stipulation as he could an assignee chosen by himself, has created a new kind of assign such as was not in the contemplation of the parties when the contract was entered into." The lessor, indeed, was discharged on the principle, "lex non cogit ad impossibilia." General words do not bind a covenantor to meet a contingency which could not be reasonably supposed to be in the contemplation of the parties at the time when the covenant was made, and of such a nature was the compulsory assignment to the railway company. It was contended for the lessee that in any event the lessor was only relieved from his liability in respect of acts which the company

other?"

was required by the Act of Parliament to do, and not in respect of those which it was merely empowered to do. But this limitation was rejected. "The covenantor," continued HANNEN, J., "is equally disabled from preventing the railway company from doing those things which it is empowered to do, as those which it is required to do; why then should there be a difference in the liability of the covenantor with respect to the one and the It was further held that the covenantor could not be assumed to have received for his land an additional sum on account of its being sold free from the restrictive covenant, and hence that the lessee could not obtain compensation by calling for such sum to be handed over to him. The covenantor, indeed, was absolutely freed from liability, and the Legislature having omitted to give the covenantee a direct claim against the company, he was without remedy. "The solution of the case," HANNEN, J., concluded, "appears to be that the plaintiff is one of a numerous class of persons injured by the construction of a railway for whom the Legislature has not provided compensation." And he illustrated this by reference to the nature of the special damage claimed in the pleadings. The amenity and comfort of the demised land had, it was alleged, been diminished by reason of the prospect therefrom being interfered with, and by being overlooked by the windows of the station; and these were heads of damage for which railway companies were not in ordinary circumstances bound to give compensation, although the lessor, had he dore similar acts, would have been liable on his covecovenant. It is, of course, otherwise where the works of the railway company cause an interference with rights which the law recognizes as attached to the enjoyment of property, and then the persons interested can obtain compensation from the company on the ground that the land has been injuriously affected (Ricket v. Metropoli'an Railway Co., L. R. 2 H. L. 175; Clark v. School Board for London, L. R. 9 Ch. 120).

In the case last mentioned the school board had purchased land over over which the plaintiff had a right to light, and proceeded to build schools which interfered with the light. It was held that under the Elementary Education Act, 1870, which incorporated the purchase clauses of the Lands Clauses Act, 1845, the school board were entitled to do this, and that the remedy of the plaintiff was to claim compensation. The intention of the Legislature, said Lord SELBORNE, L.C., was to give to the school board the land required by them absolutely free from any jus tertii which would control their dominion over it for the purpose of the duty which they have to discharge. All outstanding rights, therefore, were extinguished in favour of the school board, though, as just stated, the extinguishment was a matter for compensation.

In Kirby v. School Board for Harrogate (1896, 1 Ch. 437) the doctrine that a public body purchases free from restrictive covenants was applied to the case of a voluntary sale. "It seems to me," said NORTH, J., "that the rights of a school board as against a person who can be compelled to sell to them, but who is willing to do so, are not less than they would have been if he had been unwilling to sell but had been compelled to do so"; in other words all voluntary assignments to public bodies for public purposes carry exemption from covenants entered into by the assignor, provided that the public body could have compelled assignment on refusal to enter into an ordinary agreement. The decision of NORTH, J., in that case was affirmed by the Court of Appeal, and it was at the same time held that though a restrictive covenant was put an end to by the voluntary sale, yet the covenantee could recover compensation under section 68 of the Lands Clauses Act, if he could prove actual damage, and thus shew that his land had been injuriously affected. "It would be misreading the Lands Clauses Act," said LINDLEY, L.J., "if we were to hold that a person injuriously affected by the construction of the works could not have the benefit of section 68 if the company had managed to acquire the land by agreement rather than by the exercise of their compulsory powers. I have not the slightest doubt myself that section 68 properly applies to all cases of purchase by railway companies under their powers, and to all cases of purchase by school boards under the powers conferred upon them by this Act of 1870."

J., in Anderson v. Manchester, Sheffield, and Lincolnshire Railway Co. (ante, p. 396) to the case of a covenant for quiet enjoyment. The facts, shortly stated, were as follows: A. leased premises to B. for twenty-one years with a covenant for quiet enjoyment at the hands of A. and his assigns. The lease was effected in 1894. By the Manchester; Sheffield, and Lincolnshire Railway Act, 1893, the defendant company were authorized to make a certain railway, and for that purpose were empowered to enter upon, use, and take the property demised by the lease; but that property did not form any part of the actual site of the railway as constructed. However the company acquired by agreement the reversionary interest of A. (the plaintiff's lessor) in the demised premises, and by an arrangement made in October, 1895, A. assigned the property to the company subject to the plaintiff B.'s lease. The company, by their works on adjoining property, committed what would have been a clear breach of the covenant for quiet enjoyment if such had still existed. B. claimed damages for this on the ground that the company, by taking an assignment of the reversion, had rendered itself liable under the covenant for quiet enjoyment, and refused to pay rent. The company brought a second action against B. for rent due under his lease, B. setting up the covenant for quiet enjoyment as a defence, and counter-claiming for damages for its breach. With the trifling exception of part of the costs of the first action, the company were completely successful, BYRNE, J., deciding that they were not liable on the covenant, and consequently were exempt from damages and entitled to rent. The principle applicable to the case was similar to that in Baily v. De Crespigny (supra), though the circumstances were distinguishable from those in that and other previous cases upon the two-fold ground, (1) that the sale was merely of the reversion subject to the plaintiff's lease, and (2) that the property was not actually used or required as the site of the railway, for the extension of which the Act had been passed. The acts complained of took place, however, upon property acquired for the purpose of the railway, and the result was very much the same as though the railway company been violating a restriction imposed for the benefit of the demised premises upon the use of the adjoining land.

had

There was, however, a substantial point of distinction, and this was the matter to which BYRNE, J., chiefly directed his attention. The lease of the property had been made subsequently to the passing of the railway company's Act, and since the company were by the Act authorized to take the demised property, the possibility of the company being an assign would naturally be present to the lessor when he covenanted on behalf of himself and his assigns for quiet enjoyment. But it was held that this circumstance did not extend the proper effect of the covenant. "I think," said BYRNE, J., "that the true intent and meaning of the covenant is that the covenantor will be answerable for his own acts and for the acts of his assignees, but not that he will be answerable for the acts of the railway company in the exercise of its statutory powers; the company not being in the true sense a voluntary assignee at all, although he conveys to the company and it is not put to the exercise of its compulsory power." And this being the liability of the lessor, it was further held that no further liability was imposed upon the railway company by the assignment. "I think that a railway company taking lands under statutory powers, and constructing works within such powers without negligence, is entitled to take the interest of any person having an interest in land without incurring liability in respect of any existing covenant entered into by the owner whose interest the company acquires, so far as the enforcement of such covenant would impose a burden upon the company in derogation of its statutory rights and obligations." But as in the previous cases, although the person entitled to the benefit of the covenant loses the right to enforce it, he can in ordinary cases recover compensation. The result is that public bodies acquiring, either compulsorily or by agreement, land or interests in land which they are empowered to acquire, take the property acquired free from the outstanding rights of third parties, and the third parties are left to such satisfaction as they may be able to obtain under section 68 of the Lands Clauses Act.

The annual general meeting of the Bar will be held in the old diningThe doctrine in question has recently been applied by BYRNE, hall, Lincoln's-inn, on Tuesday afternoon next, at 4 15.

MR. WARR'S BILL FOR EXEMPTING GRADUATES
FROM THE FINAL EXAMINATION.

WE recently stated the provisions of this Bill, and pointed out that,
as it did not relax the present statutory conditions as to service under
articles of clerkship, the result might be to render the time of service
more fruitful by enabling students to get through the theoretical
work of examinations before practical work is taken up. That, we
understand, is not the view taken by many university men who have
passed both the Law Schools and the Solicitors' Final Examination,
and we have received the following communication from a contribu-
tor who has certainly had an opportunity of judging as to the mode
in which Mr. WARR's proposals are likely to work. While we incline
to think that his apprehensions are too gloomy, there is no
doubt that his observations deserve careful consideration. He says:
Though so far it has attracted but slight attention, the Bill
which Mr. WARR is introducing will, if it passes into law, produce
a most radical and far-reaching change in the present status of the
profession. The aim of the Bill, shortly, is to give the Council of
the Incorporated Law Society a power of exempting all articled
clerks who have obtained university law degrees from the Solicitors'
Final Examination. The ostensible object of the Bill is to increase
the number of university men in the ranks of the profession; and,
so far as can be seen, this is the only benefit its promoters hope to
achieve; but the advantage of the Bill, whether to university men
or to the profession as a whole, is so questionable that I trust the
Council will give the matter serious consideration before they extend
their support to the measure.

If the Bill passes and is adopted, the Council must be prepared to welcome as solicitors a large number of men with no adequate guarantee of proficiency in the practical work of their calling. Though probably the University Law Examinations will be modified by the addition of an examiner appointed by the Council, it is submitted that it will be impossible to conduct these examinations on other than purely theoretical lines. How can the technicalities of conveyancing be grasped without actual experience of drafting? Where is the teacher who can explain the varied steps in an action to one who has never so much as seen a writ? True the examination, whatever it may be, will be succeeded by three years articles, but the testimonial of a good-natured principal is surely an insufficient guarantee of proficiency for admission on the Rolls; and so far as I can see, it will be the only guarantee, for the examination prior to articles cannot in itself be any test whatever of practical knowledge. The profession, then, is in danger of an invasion by a race of pure theorists, who will triumphantly wave university hoods and degrees in the faces of their humbler but more practical brethren. The mischief will penetrate still deeper; there is a large class of men at every university with no definite bent towards any one profession, whose whole object in life is to save trouble. These men are found in the third and fourth classes of the Law and History Schools at Oxford in great numbers, as it is a recognized fact that a fourth class in such subjects is an easier road to a B.A. than a pass degree. What a chance this Bill affords them! After four years' slumber at the university, broken only by the brief effort rendered necessary by the Law School, their profession stands ready made for them, with the sole qualification that the scene of their labours (!) be transferred from their college to the office of a solicitor.

The new regulation will no doubt swell the number of university men in the profession, but they will be of a class which is not wanted and which will do no credit to either themselves or their brother solicitors. In course of time solicitors with degrees will get a bad name—three years articles preceded by a mere theoretical test will not be able to complete with five years articles followed by a thoroughly practical examination-capable university men will fight shy of a profession in which they start with so heavy a handicap; and the Bill, instead of encouraging, will eventually deter the very class of men the Council wants from entering the profession at all. The matter rests with the Council: with their support the Bill will pass; without it, the Bill will be rejected; it is to be hoped that before they definitely decide which course to take they will give some of the considerations I have mentioned their serious attention.

REVIEWS.

RULING CASES.

RULING CASES. ARRANGED, ANNOTATED, AND EDITED BY ROBERT
CAMPBELL, M.A., Barrister-at-Law. Assisted by OTHER MEM-
BERS OF THE BAR. WITH AMERICAN NOTES BY IRVING BROWNE.
VOL. XIII. INFANT INSURANCE. VOL. XIV.: INSURANCE-
INTERPRETATION. Stevens & Sons (Limited).

These two volumes of the "Ruling Cases" series embrace the titles " Infant,' "Injunction," "Inn-keeper,' "Insurance," "Interest," and "Interpretation." The custody of infants is illustrated

was

8

Q. B. D. 454), and Re Agar-Ellis (24 Ch. D. 317). The interest of
by the cases of Rex. v. De Manneville (5 East 221), Reg. v. Nash (10
the first case is now rather historical than practical. It affirmed
under very strong circumstances the common law right of a father
to the custody of his legitimate children, and it was till recent times
doubtful whether the court had any jurisdiction at all to remove a
child from the actual custody of the father (see Re Hakewill, 12 C. B.
230), though there was a wider discretion where the father
was applying to get the custody of the child. In Reg. v.
Nash it was held by the Court of Appeal that the custody
of an illegitimate child belonged to the mother, notwithstanding
the suggestion once made by Maule, J., that she
mere stranger to the child. But in consequence of the statutes
referred to by Mr. Campbell in the notes to Re Agar-Ellis, the
father's right to custody is now no more than a prima facie right
which he will not be allowed to exercise if by his conduct he has
shown himself unequal to the performance of the corresponding
duties; and the courts, following the lead of the Legislature, have
come more and more to regard the welfare of the child as the chief
factor in determining who ought to have the custody. At the same
time Re Agar-Ellis shews that the authority of the father is not to
be lightly set aside, and if he has not forfeited his rights by mis-
conduct or otherwise they will prevail until the children are twenty-
one, in spite of the opposition of the mother and of the children
themselves. The note on American law shews that in the United
States there is a similar tendency to place the welfare of the children
in front of the father's strict rights.

The title "Injunction" affords instances in Duke of Bedford v. Trustees of the British Museum (2 My. & K. 552) and Newson v. Pender (27 Ch. D. 43) of the system of cross-references by which Mr. Campbell very much enhances the value of the series. The former case has already been printed as a ruling case under "Contract," and the latter under "Ancient Light"; but by means of references to the earlier volumes they are now introduced again, the one as an authority in conjunction with Sayer v. Collins (28 Ch. D. 103) on the effect of alterations in the circumstances of an estate in extinguishing restrictive covenants; and the other in conjunction with Griffith v. Blake (27 Ch. D. 474) on the principles regulating the granting of an interlocutory injunction. The bulk of the two volumes is devoted to an elaborate treatment of the subject of insurance, in illustration of which a hundred ruling cases have been selected. These appear to relate exclusively to marine insurance, and it would have been more convenient to have placed them under a head showing specifically their nature. To the law of marine insurance, however, they furnish a very full guide, the first section treating of insurable interest and beginning with Lucena v. Crawfurd (3 Bos. & P. 75), which was twice taken to the House of Lords and, which decided that a contract of marine insurance is a contract of indemnity, and that an insurable interest is necessary to enable the assured to recover. The cases in section 2 deal with insurance agents and include Power v. Butcher (10 B. & C. 329), which defines the mutual relations of assured, broker, and underwriter. Among the matters covered by other sections are the construction of the policy, loss, adjustment of losses, and return of premiums. The decision in Ionides v. Universal Marine Association (14 C. B. N. S. 259), on the application to losses of the maxim causa proxima spectatur, is interesting in view of present possibilities. Where a vessel was wrecked through the captain losing his reckoning, and a light which would have saved her had been extinguished in consequence of war, the loss was held to be due to perils of the sea, and not to hostilities; and an exception in the policy of the " consequences of hostility" did not bar the right of the assured to recover,

BOOKS RECEIVED.

The Laws of Insurance-Fire, Life, Accident, and Guarantee.

Canadian Courts.

Embodying cases in the English, Scotch, Irish, American, and
By JAMES BIGGS PORTER, Barrister-at-Law;
assisted by WILLIAM FIELDEN CRAIES, M.A., and THOS. SHEPHERD
LITTLE, M.A., Barristers-at-Law. Third Edition. Stevens &
Haynes.

Cassell's Family Lawyer; being a Popular Exposition of the Civil Law of Great Britain. By a Barrister-at-Law. Cassell & Co. (Limited).

Principles of the Law of Consent. With Special Reference to Criminal Law, including the Doctrines of Mistake, Duress, and Waiver. By HUKM CHAND, M.A. Bombay Education Society's Press.

The Yearly Abridgment of Reports: being a Full Analysis of all Cases Decided in the Supreme Courts during the Legal Year 1896-7, so far as reported to end of December, 1897, in all the Reports; together with a Selection from the Scotch and Irish Reports, Preceded by Complete Lists of all Cases, Statutes, and Rules Cited, and

concluding with a Copious Index to Points of Law Considered. By ARTHUR TURNOUR MURRAY, B.A., Barrister-at-Law. Butterworth

& Co.

Mr. Justice KEKEWICH (1898-C.-No. 1,059). In re The Civil, Naval, and Military Outfitters (Limited) William Hudson Hand v The Civil, Naval, and Military Outfitters (Limited)

CORRESPONDENCE.

SECTION 25 OF THE COMPANIES ACT, 1867.

[To the Editor of the Solicitors' Journal.]

Sir,-In several instances lately I have noticed that in dealing with this deservedly-abused section-for example, in the leading article in your issue of the 2nd inst., and also in the further report of the Council of the Incorporated Law Society set out in your issue of the 9th inst., p. 399-the case of Veuve Monnier et ses Fils (Limited) v. Bloomenthal is coupled with the Kharaskoma case, Maynard's case, and Ibbotson v. Ibbotson & Co. (Limited) with the intention of shewing the extreme inconvenience and hardship wrought by this ill-drawn section 25.

It seems worth while to point out that in all these cases, except Bloomenthal's, had a proper and complete contract been filed in accordance with the section, no inconvenience would have been felt, whereas in Bloomenthal's case, however complete a contract had been filed, it would not have availed to protect Bloomenthal from being placed on the list of contributories.

The registration of a contract under the section has never been held to exempt the shares from being paid up in full, as it only regulates the mode of payment--that is, when such payment is not made in cash (per Lindley, L.J., Addlestone Linoleum Co., 1897, 37 Ch. D. 205; Almada & Tirito, &c, 38 Ch. D. 425). The decision of the House of Lords in Bloomenthal's case did not turn upon the section at all; it was based on the simple ground of estoppel. The agreement between the parties was one whereby Bloomenthal agreed to lend money to the company upon the security of fully-paid shares of the company. This agreement was followed by the issue to Bloomenthal of a certificate for shares purporting to be fully paid up, and it was held that the company and its liquidator were therefore estopped from saying that the shares were otherwise than fully paid. Had this defence not prevailed, it seems clear that, unlike the other cases referred to, no course was open to Bloomenthal to enable him to protect himself against the effect of section 25. April 20, 1898.

NEW ORDERS, &c.

THE SOLICITORS ACT, 1888. RULES.

ENQUIRER.

By virtue and in pursuance of the Solicitors Act, 1888, and of all other powers and authorities enabling me in that behalf, I, the Right Honourable Nathaniel Lindley, Knight (Master of the Rolls), with the concurrence of the Right Honourable Hardinge Stanley, Earl of Halsbury, Lord High Chancellor of Great Britain, and the Right Honourable Charles, Baron Russell of Killowen, Lord Chief Justice of England, do make and publish the following additional rules for regulating the making, hearing, and determining applications to the Committee under the Act and reports by the Committee to the Court under the Act, and generally for the purposes of the execution of the provisions of the Act.

Dated this first day of April, 1898.
RUSSELL OF KILLOWEN.

PART I.

NATHANIEL LINDLEY, M.R. HALSBURY, C.

Committee determine to proceed in his absence, and in any other 5 (a) In any case in which the solicitor does not appear and the case with the consent in writing of the solicitor, the Committee may, either as to the whole case or as to any particular fact or facts, receive and act upon evidence given by affi lavit, including the affidavit or affidavits upon which the application is made.

5 (b) Any affidavit made for the purpose of the Act or of these Rules shall be sworn in accordance with the provisions of the Commissioners for Oaths Act, 1889.

TRANSFER OF ACTIONS. ORDER OF COURT.

Monday, the 18th day of April, 1898. I, Hardinge Stanley, Earl of Halsbury, Lord High Chancellor of Great Britain, do hereby order that the actions mentioned in the Schedule hereto shall be transferred to the Honourable Mr. Justice Wright.

SCHEDULE.

Mr. Justice KEKEWICH (1898-D.-No. 257).

CASES OF THE WEEK.
Court of Appeal.

ALLHUSEN v. EALING AND SOUTH HARROW RAILWAY CO. No. 2. 19th April.

The

RAILWAY COMPANY-NOTICE TO TREAT-PROPOSAL TO TAKE PART OF A PRIVATE ROAD LEADING TO A MANSION-HOUSE - COUNTER NOTICE REQUIRING COMPANY TO TAKE THE WHOLE OF THE HOUSE AND GROUNDS"PART ONLY OF ANY HOUSE OR OTHER BUILDING OR MANUFACTORY LANDS CLAUSES CONSOLIDATION ACT, 1845 (8 & 9 VICT. c. 18), s. 92. This was an appeal by the plaintiff from a decision of Stirling, J. defendant company proposed to purchase compulsorily, for the purpose of making their railway, a small part only of a private road forming the approach to the house and grounds belonging to the plaintiff, and the plaintiff contended that under section 92 of the Lands Clauses Consolidation Act, 1845, he was entitled to require the defendant company to take the whole of the said house and grounds. The plaintiff therefore moved for an injunction to restrain the defendant company from proceeding Twyford Abbey which was comprised in the defendant company's notice with the purchase of that part of the plaintiff's mansion-house known as to treat, without purchasing at the same time the remaining portion of the plaintiff's said mansion-house. The plaintiff had acquired the property in question by a deed of conveyance dated the 6th of November, 1890, and executed by the devisees of a gentleman named Willan. The defendant company was incorporated by a private Act, which was passed in 1894, and which incorporated the Lands Clauses Acts, and Part I. of the Railways Clauses Act, 1845. The defendant company's notice to treat, which was served on the plaintiff on the 21st of January, 1898, stated their intention to take for the purposes of their railway a portion required only for the purpose of constructing a bridge, which bridge of the plaintiff's private road containing 2r. 31p. This piece of land was necessitated a lowering of the roadway; and the defendant company stated their willingness to purchase and accept, instead of the land itself, an easement enabling them to execute the necessary works. The plaintiff then gave notice that he required the defendant company to purchase and take the whole of the house within the meaning of section 92 of the Lands Clauses Consolidation Act, 1845. The defendant company was proceeding to have the value of the 2r. 31p. they proposed to take determined by a jury, and the plaintiff accordingly brought an action against them, and gave notice of motion for an injunction to restrain them from so proceeding. Stirling, J., decided that the portion of the road which the defendant company proposed to take was not part of the mansion-house known as Twyford Abbey, and refused the motion. The plaintiff appealed. THE COURT (LINDLEY, M.R., and RIGBY and COLLINS, L.JJ.) dismissed the appeal.

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construction of section 92 of the Lands Clauses Consolidation Act, 1845, LINDLEY, M.R., said: I think this case turns, after all, on the true which, of course, must be construed upon the same principles as those which have been applied to its construction ever since the Act was passed. As to those principles, I do not think there has ever been any conflict of judicial opinion. Section 92 of the Act of 1845 is this: "And be it enacted that no party shall at any time be required to sell or convey to the promoters of the undertaking a part only of any house or other building or manufactory, if such party be willing and able to sell and convey the whole thereof." Now, it has been laid down ever since this Act was passed that by the word "house" is meant, not a mere building, whether for residential or for other purposes, but whatever would piss under the conveyance of "a house." There is no doubt at all about that; but, as I observed during the argument, it is very seldom that you have a 66 a house" without some sort of context which enables you conveyance of to see what is meant. The use of the word "house" may convey a piece of land, more or less large, but it does not follow that every garden which of a house"? If we look at the conveyance of November, 1890, we find is enjoyed with the house is part of the house. Still, that is the point we have got to consider is the company here proposing to take "part only that the vendor is selling a portion of a larger estate. Paragraph 14 shows that he is selling under the order of the court, and the recital is that it is ordered that the vendor should be at liberty to sell. Therefore what he was ordered to sell, or authorized to sell, was something more than a house, a good deal more than would pass by a grant of the house. He is authorized to sell a house called Twyford Abbey. Then, if we look at the parcels, what is it that he does sell? He sells the messuage com monly called Twyford Abbey, together with the appurtenances, and the meadow land adjoining the said mansion-house and premises, and When we look at the plan we find what is meant by Twyford Abbey mansion-house. Now, how much of all that can be said under this conveyance to be part of the house? I doubt very much whether the pieces of land marked on the plan 30 and 36-that is, the avenue-are part of the house at all. They are, no doubt, part of the land occupied with the house; but I think they are not part of the house itself. I think it would be stretching language to say that that avenue, situated as it is, is part of the house, or would be included in a conveyance of the house if we had nothing else. If that is so, the company are absolutely in the right. But it is said that the authorities against that view are too strong; and we

so on.

In re Dowling & Son (Limited) John Roberts v Dowling & Son (Limited) are pressed by Mr. Balfour Browne, who is always logical, with authorities

which, it is said, have gone to such an extent that we cannot logically avoid going a step farther. I do not feel disposed to be so logical as to do that which appears to me to be contrary to the right construction of the Act of 1845. I think perhaps the strongest of the cases relied upon is Furniss v. Midland Railway Co.(L.R.6 Eq.473,475). But what was being done there was to destroy the waterworks, or so to interfere with with them that the judge felt bound to prevent that. But I am satisfied that in the present case nobody looking at this plan and attending to the mode in which the house and the land are joined, can reasonably say that the former and the latter are parts of one whole. The land does not fairly come within the description of "part of any house," extensively as that description has been construed by some of the decisions. To hold otherwise would be pressing those decisions too far, and would, I think, be to make a very bad precedent. The appeal must therefore be dismissed. RIGBY, L.J., delivered judgment to the same effect.

of two companies, and that there was a quarrel as to some of the terms of
the amalgamation. His lordship guarded himself from going so far as to
say that the plaintiff company had any monopoly in the use of the word
"Manchester."
COLLINS, L.J., was of the same opinion, and did not wish to add any-
thing. Appeal allowed.-COUNSEL, Moulton, Q.C., Astbury, Q.C., and
O. L. Clare; Cozens-Hardy, Q.C., and Stewart Smith. SOLICITORS, Chester,
Mayhew, Broome, & Griffiths, for Farrar & Co., Manchester; Firth & Co., for
Godfrey, Rhodes, & Evans, Halifax.
[Reported by W. SHALLCROSS GODDARD, Barrister-at-Law.]

High Court-Chancery Division.

COLLINS, L.J., concurred.-COUNSEL, Balfour Browne, Q.C., Bu'cher, R: WHITE'S CHARITIES. CHARITY COMMISSIONERS v. LONDON,
Q.C., and E. Moon; Phipson Beale, Q.C., Freeman, Q.C., and R. F. Norton.
SOLICITORS, Crossman, Prichard, Crossman, & Block; Baxter & Co.

[Reported by R. C. MACKENZIE, Barrister-at-Law.]

MANCHESTER BREWERY CO. (LIM.) v. NORTH CHESHIRE AND
MANCHESTER BREWERY CO. (LIM.). No. 2. 20th April.

LIMITED COMPANY-SIMILARITY OF NAME-NAME OF OLD COMPANY ADDED
TO NAME OF EXISTING COMPANY-COMPANIES ACT, 1862 (25 & 26 VICT. C.
89), s. 20.

MAYOR AND CORPORATION OF. Romer, J. 20th April.
HIGHWAY-OWNERSHIP-RIGHT OF ADJOINING LANDOWNER AD MEDIUM
FILUM VIAE-STREET IN A TOWN-PRESUMPTION-RENT-CHARGE ISSUING
OUT OF STREET-LIABILITY-PRACTICE-CHARITY-CHARITABLE
(RECOVERY) ACr, 1891 (54 & 55 VICT. c. 17), s. 3.

Stonecutter-street.

TRUST3

Summons. This was an application by the Charity Commissioners, under the provisions of section 3 of the Charitable Trusts (Recovery) Act, 1891, and rule 2 of the Rules of the Supreme Court (Charitable Trusts Recovery), 1892, for an order directing the defendants, the Corporation of Appeal by the plaintiff company from a decision of Byrne, J. The London, or (alternatively) the defendant, Hy. Thos. Tubbs, to pay certain action was brought for an injunction to restrain the defendant company, £6 12s. 6d. respectively, issuing out of land whereon the messuage known amounts alleged to be due in respect of two annual rent-charges of £7 and its agents, and servants, from using or carrying on business under its preas 24, Shoe-lane formerly stood. These rent-charges were admitted to be sent name, style, or title, or any other style or name which included the plaintiff company's name, or so nearly resembled the same as to be calcu-charged by the will of T. White, dated in 1619, upon the premises then lated to deceive the public, or induce the belief that the business carried known as 24, Shoe-lane, and the only question argued was whethre the on by the defendant company was the same as the business carried on by Corporation or Tubbs were now liable to pay them. The premises were the plaintiff company, or in any way connected therewith. The plaintiff acquired by the Corporation in 1825, under statutory powers to acquire company was incorporated in 1888, and had its brewery in Manchester, property for a market known as Farringdon Market, and were with other with a large business in that city and neighbourhood. The North Property conveyed to them by the freeholder, subject to the above and other rent-charges. Cheshire Brewery Co. (Limited) was in existence in 1888, and had its The property, formerly 24, Shoe-lane, was as to widen Shoe-lane and brewery at Macclesfield, with a large business in that neighbourhood. The thrown by them into the roadway 80 North Cheshire Co. sold its business to a Mr. Rhodes, who formed it into sold the side of Farringdon Market by auction to Tubbs, subject to partiIn 1892 the Corporation under statutory powers a new company (the defendant company), which was registered on the 11th of October, 1897. On the 20th of October the solicitors of the plaintiff culars and conditions of sale which showed that the land was sold subject company wrote, on the instructions of the board of directors, to the defendant to annual rent-charges amounting to £28 163. 6d., but not upon what company as to their use of the name Manchester Brewery Co., and the writ particular property the said rent-charges were charged, and barred the in the action was issued on the 22nd of October. The directors of the purchaser from requiring an abstract of title or production or delivery to him of any deeds. The property was conveyed to the purchaser or his defendant company did not proceed to an allotment of shares until the 26th of October. The evidence before Byrne, J., went to shew that nominees in several plots, and each plot was conveyed, "subject to such the defendant company's business in Manchester was of a very limited part or parts, if any, of the said rent-charges or any of them as may be charged upon the said hereditaments and promises hereby conveyed." extent, although it was the intention of the directors to extend it as much None of the conveyances contained any covenant for payment of the rentas possible in that direction. Byrne, J., being of opinion that in using the word "Manchester" there was no intention on the part of the charges or for the indemnification of the Corporation. Part of the property, which was conveyed to Tubbs himself, abutted on Shoe-lane aud defendant company to interfere with the plaintiff company's business, Stonecutter-street, and the centre line of Stonecutter-street, where this and that there was no evidence of any of the general public being property abutted on it, ran through the site of the former messuage, 24, deceived by the similarity of the names, dismissed the action. The Shoe-lane. It was contended for the Corporation that the soil of the plaintiff company appealed, and on the hearing of the appeal the court street to the centre must be presumed to have passed to Tubbs on the called attention to section 20 of the Companies Act, 1862, on which the conveyance of the land abutting thereon, and that Tubbs was therefore question primarily turned. Section 20 provides as follows: "No company liable in respect of the said rent-charges charged by the said will of T. shall be registered under a name identical with that by which a subsisting White as owner of the land upon which they were charged, and company is already registered, or so nearly resembling the same as to be calculated to deceive, except in a case where such subsisting company is 71) was cited for Cotton, L.J.'s, statement of the law. Micklethwait v. Newlay Bridge Co. (33 Ch. D. 133, p. 145; 35 W. R. Dig. in the course of being dissolved, and testifies its consent in such manner as the registrar requires."

THE COURT (LINDLEY, M.R., and RIGBY and COLLINS, L.JJ.) allowed the appeal. LINDLEY, M.R.-I cannot take the same view of this case as was taken by the learned judge in the court below. The case is a peculiar one, and turns on the 20th section of the Companies Act, 1862, which I will read. [His lordship read the section, and stated the facts shortly, and continued:] The peculiar thing is that, without consulting them, the defendant company did in fact take the whole of the name of the Manchester Brewery Co. They do not come within the first exception to the section. We have to deal with a larger title. What does it denote? The name of the defendant company would mean to anyone who knew of the existence of the two companies carrying on business, one in Manchester and the other in Macclesfield, that they had been amalgamated. That being so, can it be said that it does not fall within the second part of the 20th section ? In fact, they do deceive people into thinking that the business of the one company is being carried on by the other. I do not see any answer to that. If the defendant company state that they are carrying on business under the larger name, they must be carrying on the business of the Manchester Brewery Co. That is calculated to deceive, and there can be no answer to it. It is true that there is no evidence of actual deception; that was probably due to the fact that the case was tried so soon after the new company was started. The appeal must be allowed, and there must be an injunction substantially in the terms asked for. The defendants have certainly gone too far. I do not wish to say anything which might lead to the idea that the plaintiff company has a monopoly in the name of "Manchester "; but I do say that where a company uses the whole of the name of another company it can be stopped, because that would lead to the inference that there was some connection between the two companies. Such a course is not allowed either by law or by fair dealing.

RIGBY, L.J., was of the same opinion, and said that on hearing the title of the case first of all he expected to find that it was an amalgamation

ROMER, J., said that it was not denied that the rent-charges were between the Corporation and Tubbs, Tubbs ought to pay; and his lordpayable, and the question was which of the defendants was liable. As If the conveyance to him included that part of the highway which was ship was able to do justice, for in his opinion Tubbs was legally liable. at the time vested in the Corporation, he became liable under the circumstances stated. The Corporation, at the date of the conveyance, owned at any rate a moiety of the site of 24, Shoe-lane. The general rule as to the presumption of the highway passing ad medium filum was stated by Cotton, L.J., in Micklethwait's case (33 Ch. D., at p. 145), and, whatever the origin of the doctrine, the law was now settled. It was suggested that the rule did not apply to streets in towns. Why should it not? Where was the line to be drawn? At country towns, small towns, villages, hamlets? Where was the limit to the suggested exception? In his lordship's opinion the rule did apply to streets in towns. Was there anything, then, in the case before the court to rebut the presumption? He could not find anything. Under the circumstances, there was no reason why the Corporation should have wished to retain the soil of the street. secured to them just the same. The public were not prejudiced: the use of the highway was The circumstances of the purchase by Tubbs, the sale by the Corporation, the difficulties in ascertaining what parts of the property were charged, were in his lordship's opinion circumstances tending to support the presumption. It was suggested that the Corporation owning the soil beyond the medium filum was a rebutting circumstance, but in his opinion that was not so. He felt no doubt that if A. owned houses on one side of the highway and B. on the other, but the soil of the highway was not evenly divided between them but was as t the greater part owned by A., supposing that A. conveyed his houses as bounded by the highway the presumption passed A.'s part of the highway. His lordship, therefore, held that Tubbs was legally liable in respect of the rent-charges.-COUNSEL. Vaughan Hawkins; Neville, Q.C., and A. J. Allen; Farwell, Q.C., and Sheldon. SOLICITORS, Clabon; H. H. Crawford;

Leonard Tubbs.

[Reported by J. F. WALEY, Barrister-at-Law.]

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