fraternity, to sell beer, will find no difficulty in ascer

THE purchasers of building lots on the estates of the various land companies, and their tenants, will do well to consider carefully the line of cases which has settled the meaning of the covenant which prevents a house erected on any lot from being used for the purpose of a "beerhouse" or beershop." These words would, in all probability, be treated as synonymous in the mind of the average purchaser or tenant, and the covenant would be considered to be merely a safeguard against the conversion of the premises into a public-house. In point of fact, in most leases of any standing in which the disqualifying covenant is inserted, the draftsman has evidently used the words "beerhouse" and "beershop" without drawing any marked distinction between them. Recent decisions have, however, finally established a rule which should be carefully noted, that, while a covenant nct to use any premises as a 'beershop prohibits the occupier from selling beer in any form or kind whatever, such a covenant, if the word "beerhouse" is used, is not broken if the beer is sold to be consumed off the premises.

The first of these propositions, which had been previously laid down by the late Lord Chief Justice Cockburn and Mr. Justice Mellor in Bishop of St. Albans v. Battersby (26 W. R. 679), has now received the formal sanction of the Court of Appeal in the case of London and Suburban Land and Building Company v. Field (L. R. 16 Ch. D. 645). In that case the conveyance to the purchasers contained a covenant that except on certain specified plots of land no public-house, tavern, or beershop should be built, nor should any messuage or other building to be erected on any piece of land be converted into or used as such. The defendant had erected a shop on his plot and obtained an off license empowering him to sell beer at his shop not to be drunk on the premises, and it was held, upholding the previous decision of the Master of the Rolls, that the sale of beer by the defendant was a breach of the covenant. It was contended on behalf of the defendant that "beershop" had acquired a technical meaning in the trade as a house where beer was sold by retail to be drunk on the premises, but the court unanimously rejected this construction, Lord Justice Brett observing that the word "must be construed according to the ordinary construction as meaning a place and a shop where beer is sold. It therefore in cludes a beerhouse, but something more-a place where beer is sold and yet is not a beerhouse, and the case stated is one which is struck at by the covenant." Following this decision came Holt v. Collyer (29 W. R. 50), in which Mr. Justice Fry decided that a covenant not to use premises as a public-house, tavern, or beerhouse" was not broken by the sale of beer not to be drunk on the premises where the defendant carried on the business of a grocer. Mr. Justice Fry, after refusing to allow evidence of the meaning of the word "beerhouse" in trade usage to be given, and observing that it was important for the public that the meaning of a word should be definitely settled once for all, said, referring to the previous cases of Bishop of St. Albans v. Battersby and London and Suburban Land and Building Company v. Field, "Independently of authority, I should have come to the same conclusion. Can it be said, in fact, that a grocer's shop at which beer is sold, whether wholesale or retail, is, according to the ordinary acceptation of the term a 'beerhouse'? It appears to me clear that it cannot, and in arriving at this conclusion I am assisted by observing the collocation of the words forming the clause in which the term occurs-i.e., 'public-house, tavern, or beerhouse.""

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Those who draw instruments relating to businesses of this sort will now know definitely on what principles to proceed, and grocers who propose, like so many of their

of an action to restrain them.

THE LAW OF LICENSING.

II.

RENEWALS OF LICENSES.

"THE renewal of a license," we are told in the interprotation clause of the Licensing Act, 1872 (35 & 36 Vict. c. 94), s. 74,"means a license granted at a general annual licensing meeting by way of renewal." This cannot be called a very satisfying definition. The expression, "by way of renewal," appears to have been taken from the 7th section of the Wine and Beerhouse Act, 1869 (32 & 33 Vict. c. 27), in which section, if we mistake not, the term "renewal" is first used in the Statutebook, for it is of the utmost importance to bear in mind that the earlier licensing Acts knew nothing of the vital distinction which modern legislation has drawn between 66 new licenses" and "renewals." Oue distinction there was, and one only, and this was that the preliminary notices which were required to be given by the applicants for new licenses were dispensed with in case of application for licenses in respect of premises already licensed. The status of irremovability, if we may so term it, which such applicants now practically enjoy grew up out of the rights which for thirty-nine years, from 1830, when Lord Brougham's Beer Act (11 Geo. 4, and 1 Will. 4, c. 64) was passed, to 1869, when Sir H. S. Ibbetson's Wine and Beerhouse Act (32 & 33 Vict. c. 27) was passed, were insured to certain persons to sell beer and wine under excise licenses without magisterial restriction. When the Act of 1869 was passed, the Legislature, with its usual tenderness for vested interests, protected the premises to which such particular licenses were attached at the time of its passing by special clauses of peculiar phraseology. By parity of legislation, but by legislation based on reasoning scarcely so sufficient, the Act of 1872 has protected premises to which general licenses were attached at any time and have since remained attached by other special clauses of peculiar phraseology. We will examine these two sets of special clauses, and deal first with those clauses in the Acts of 1872 and 1874 which affect all applicants for renewals, whether holders of the general public-house license, or of the special beer and wine licenses under one of the six Excise Acts recited in the Wine and Beerhouse Act, 1869.

The 42nd section of the Act of 1872 provides for the case where a "licensed person applies for the renewal of his license" :

"(1) He need not attend in person at the general annua licensing meeting, unless he is required by the licensing justices so to attend :

(2) The justices shall not entertain any objection to the renewal of such license, or take any evidence with respect to the renewal thereof, unless written notice of an intention to oppose the renewal of such license has been served on such holder not less than seven days before the commencement of the general annual licensing meeting: Provided that the licensing justices may, notwithstanding that no notice has been given, on an objection being made, adjourn the granting of any license to a future day, and require the attendance of the holder of the license on such day, when the case will be heard and the objection considered, as if the notice hereinbefore prescribed had not been given.

"(3) The justices shall not receive any evidence with respect to the renewal of such license which is not given on oath.

"Subject as aforesaid, licenses shall be renewed, and the powers and discretion of the justices relative to such renewal shall be exercised as heretofore."

The final paragraph of this section is very explicit. For its meaning we go back to 9 Geo. 4, c. 61, where we find that justices are empowered to grant licenses (and we have already pointed out that, independently

of the Acts of 1872-4, grants and renewals stand on the same footing) "to such persons as they, the said justices, shall, in the exercise of their discretion, deem fit and proper❞—that is, to all the applicants if the justices so please, or to no applicants if the justices so please, or to selected applicants as the justices please. The 42nd section of the Act of 1872, read with this section, clearly gives no title to a renewal. It is strongly in favour of the applicant, but all it does is to insure him a full hearing, and enable him to take all legal precautions to defend his license. But the 26th section of the Act of 1874, reciting verbatim the provision numbered (1) of the 42nd section of the Act of 1872 above set out, enacts that the requisition of the licensing justices" shall not be made, save for some special cause personal to the licensed person to whom such requisition is sent." The same section also enacts that "a notice of an intention to oppose the renewal of a license served under section 42" of the Act of 1872 "shall not be valid, unless it states in general terms the grounds on which the renewal of such a license is to be opposed." The saving clause for the discretionary powers of the justices which appears in the 42nd section of the Act of 1872 is absent from the 26th section of the Act of 1874, but, by section 1 of the Act of 1874, the two Acts, so far as is consistent with the respective tenors of such Acts," are to be construed " one Act." Does, then, the 26th section of the Act of 1874 confer any statutory title to renewal ? Practically, no doubt, the position of the applicant, strong under the Act of 1872, is very much strengthened by the Act of 1874. We believe, too, that in no single case, either before the Act of 1872 or after it, has a renewal been ever refused, except on grounds of bad character. If such a case has occurred we should be glad to be informed of it. But the question is not what the practice in fact is, or ought to be, but what the practice in law may possibly be, and we have no hesitation in saying that the discretion of the justices to refuse a renewal on any ground or no ground, and with reasons or without, still remains. Upon the 42nd section of the Act of 1872 there were three avenues of attack upon the renewal (1) by requisition to attend ; (2) on an objection being made," and (3) after written notice of opposition. The first avenue is closed by the Act of 1874, or rather it is restricted to attacks for "special cause personal," whatever that may mean. The third is restricted by the requirement that the notice of opposition must state the grounds of opposition. Beyond this, the applicant is at the mercy of the justices as he was before.

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as

We now come to those applicants for renewals to whom the Wine and Beerhouse Act, 1869, applies, as well as the enactments of 1872-4 above examined. Section 19 of that Act enacts that "where, on the 1st of May, 1869, a license under any of the recited Acts [authorizing the grant of certain excise licenses without giving the Excise any power to refuse them] is in force with respect to any house or shop for the sale by retail therein of beer, cider, or wine to be consumed on the

premises, it shall not be lawful for the justices to refuse an application

except on one or more of the grounds upon which an application for a certificate under this Act in respect of a license for the sale of beer, cider, or wine not to be consumed on the premises, may be refused in accordance with this Act." The reference is to section 8 of the Act, which prescribes that no application for any such certificate "shall be refused, except on one or more of the following grounds, viz :— "(1) That the applicant has failed to produce satisfactory evidence of good character:

'(2) That the house or shop in respect of which a license is sought... is of a disorderly character: "(3) That the applicant having previously held a license, the same has been forfeited for misconduct :

(4) That the applicant, or the house in respect of which he applies, is not duly qualified as by law is required:" and it is added that, where the grounds of refusal is the

fourth ground, "the justices shall specify in writing the grounds of their decision."

There have been two or three decisions of importance upon these 8th and 19th sections of the Act of 1869. It was held in Reg. v. Curzon (21 W. R. 886, L. R. 8 Q. B. 400) that where a license existing on the 1st of May, 1869, has been suffered to drop, the privileges of the 19th section are lost. In Reg. v. Sykes (24 W. R. 141, L. R. 1 Q. B. D. 52) a mandamus issued to justices under section 8 to state on which of the four grounds a license had been refused, and in Ex parte Smith (26 W. R. 682, L. R. 3 Q. B. D. 374) a similar mandamus issued, although the justices made affidavit that they had in fact acted upon one of the grounds on which they were by law empowered to refuse the license. The expression 'qualified as by law is required" has reference to a number of qualifications scattered over a number of successive statutes. Among the more important qualifications may be mentioned those under 3 & 4 Vict. c. 61, of residence for the person, and sufficient annual value for the premises in the case of a license to sell beer to be drunk on the premises-the qualification as to value being materially affected by the 45th and 46th sections of the Act of 1872. It may be just worth while to point out that a mandamus to justices in this, as well as in other cases, would not be a maudamus to grant the license applied for, but a mandamus to hear and determine the application for it.

In event of the application for renewal being refused there is clearly a right of appeal to quarter sessions under the 27th section of 9 Geo. 4, c. 61, preserved as to renewals and transfers by the Act of 1872. But if the application for renewal be granted, is there a right of appeal in the person who opposed it? The 27th section of 9 Geo. 4, c. 61, gives the appeal to 'any person aggrieved by any act of any justice." It would seem from Reg. v. Middlesex Justices (3 B. & Ad. 938) that these words are confined to a person immediately aggrieved, as by the refusal of a license to himself, and do not include the case of a person consequentially aggrieved. Perhaps, however, the proceedings might be brought upon certiorari by the opposing party, and it seems clear that ever since the passing of the Summary Jurisdiction Act, 1879, a case might not be stated by justices on the application of either party, under section 33 of that Act, which allows any "order, determination, or other proceeding" to be questioned in this manner, for the licensing justices do not appear to be a "court of summary jurisdiction" within the meaning of that enactment.

The forty-seventh half-yearly general meeting of the members of the Solicitors Benevolent Association will be

held at ten a.m. on Wednesday, the 12th of October, at the Pavilion, Brighton, during the sittings of the Incorporated Law Society, to receive the half-yearly report and statement of accounts, and for the election of directors and auditors for the ensuing year, and other general business.

inn, has addressed the following letter to the Times : — Mr. Arthur J. Parker, of 3, Stone-buildings, Lincoln's"Before it is too late will you raise your powerful voice to secure the widening of the now scandalously narrow footways in Chancery-lane? The Honourable Society of Lincoln'sinn have been allowed to rebuild on the west side of this important thoroughfare without adding one inch to the footway, which along the whole length of their property is not 3ft. wide. Within a short time Lincoln's-inn will erect more new buildings towards the south, and unless steps are taken to secure a reasonable increase to the footway, the width of the footway on the west side of this thoroughfare for about a quarter of its length will be irrevocably fixed at 3ft. Everyone acquainted with the locality must admit that such a footway is quite insufficient for the traffic. the removal of the new iron railing now standing in front of the Lincoln's-inn property, about 3ft. could be added to the footway. Is this too much to ask? Perhaps some of your readers can say how it is that the authorities apparently have been inactive in this matter."

B

RECTIFICATION OF THE REGISTER OF TRADE-MARKS.

II.

APPLICATIONS to rectify the register of trade-marks by the entry of a mark have not been by any means universally successful; in fact, if the case of cotton marks are set on one side, the instances of success are pretty fairly balanced by those of failure. Among the very first cases decided under the Act of 1875 was Ex parte Stephens (24 W. R. 963, L. R. 3 Ch. D. 659), in which registration was refused to the word or combination of letters "Aeilyton," on the ground that the word was claimed as a new mark, and that mere combinations of letters forming fancy names were excluded from registration as new marks by the language of the 10th section of the Act of 1875. Similarly, on the construction of the same section, which provides for the registration of old marks consisting of special and distinctive combinations of letters, but says nothing as to single letters used as trade-marks, it was held, in In re Mitchell (26 W. R. 326, L. R. 7 Ch. D. 36), that a single letter could not be registered as a trade-mark for steel pens, notwithstanding that the applicants for registration and their predecessors in business had used the letter in question as a trade-mark for many years.

In re Rosing, which came before the Court of Appeal in November, 1878, was a somewhat different case, for there the opposition to registration was not raised by the regis. trar, but by the Cutlers' Company of Sheffield, to whom the Act of 1875 and the rules assign a position rather like that of the Manchester Committee of Experts as to cotton goods. Moreover, the opposition was not based

on any inherent defect in the mark itself, rendering it unregistrable, but on its resemblance to another mark which was already duly appropriated as a Sheffield corporate mark. The Court of Appeal, reversing the decision of Bacon, V.C., were of opinion that the two marks were so similar, especially when looked at as stamped upon the substance of the metal goods, that deception might not improbably be occasioned, and they refused the registration.

A more questionable decision is that in 'In re Royal Baking Powder Company, in which the Court of Appeal, affirming the decision of Bacon, V.C., last year, refused leave to register the word "Royal," or the words " Royal Baking Powder," as a trade-mark, for baking powder. The decision of the Vice-Chancellor was clearly founded on a misapprehension, as he seemed to consider that the registration of the word "Royal,” without additional words specifying the article in respect of which it was to be used, would give the applicant a right to the exclusive use of the word for all classes of goods, although the form of application and advertisement in the Trade- Marks Journal clearly specified and limited the class of goods for which registration was sought. The Court of Appeal apparently considered that the entire labels used by the company, or, at all events, the name of the company, ought to have been treated as composing the trade-mark. But after the decision of the House of Lords in Orr-Ewing v. Registrar of Trade-Marks (28 W. R. 17, L. R. 4 App. 479) it is difficult to escape coming to the conclusion that the true registrable trade-mark is the essential particular-in that case the animal device, in the baking powder case the word " Royal." The word had been prominently used in varying labels with different inscriptions, and the spirit of the Registration Acts seems to require that the essential particular, which is the true trade-mark, should, as far as possible, be claimed apart from the common words and details with which it is used.

The cases hitherto referred to have had reference to applications to rectify the register by placing on it some mark or name to which registration had been refused; but the 5th section of the Act of 1875 provides also for the removal from the register of marks or names which

have been wrongly placed there, so that even if & mark is advertised and actually registered without challenge, it is still not too late for the matter to be put right if the registration is wrongful. This possibility was well exemplified in the case of In re Hyde & Co. (26 W. R. 625, L. R. 7 Ch. D. 724), in which a mark which had for many years been used in common by the sealing-wax trade was registered without opposition as the exclusive property of one firm, but was afterwards, on application by other persons interested in the trade, ordered to be removed from the register, and the Master of the Rolls went so far as to give the successful applicants the costs of the application, holding that they were under no obligation to see the advertisement in the Trade-Marks Journal, and were not responsible for the wrongful registration having been obtained. In Rose v. Evans (48 L. J. Ch. 618) Vice-Chancellor Hall held that the word "Limetta" had been wrongly registered, and must be removed from the register unless the parties moving would consent to some less stringent measure.

After the Trade-Marks Rules, 1876, had been framed, it was found to be advisable that the proprietor of a registered trade-mark should be in a position to remove his mark from the register, and the rule of February 4, 1878, was accordingly made, by which the registered proprietor of a trade-mark is empowered to apply at any time to the registrar to cancel the entry of such trademark on the register, and the registrar is authorized to cancel such entry. Under this rule, in Ex parte Sales, Pollard, & Co., which came before the Master of the Rolls in July, 1878, the applicants obtained the removal from the register of the letters "S. P.," the initials of their firm, which they had discovered to have been in common use in their trade (the snuff trade) for many years, though they had been the first to use it.

In In re Lysaght (July, 1878) the proprietor of a trade-mark registered for all the goods contained in class 5, instead of applying to have the mark removed from the register altogether, applied to the Master of the Rolls to have the register rectified by limiting the registration to galvanized sheet iron on which alone it was his old mark; and in some other cases the registration has been limited by a note appended to the entry in the register, usually on the application of some rival trader who has objected to unlimited registration as interfering with the rights of the trade. Thus, in In re Leonardt (April, 1878), certain trade-marks had been registered for steel pens, and a note was added to the registration disclaiming any exclusive right in certain details common to the trade, which had been included in the registration. So in In re Mitchell (W. N. 1878, p. 101), where marks on steel pens were again in question, and in In re Kuhn, which came before the Master of the Rolls in November, 1878, the same thing was done again with respect to marks used in the same trade. There have also been a number of other cases in which registration has been limited in various respects, but in those cases the question has arisen upon an ordinary opposed application to register, and have therefore been outside the scope of the present article.

Rules 35 to 37 are specially directed to the alteration and rectification of the register, and provide that the registered proprietor of any registered trade-mark may, by leave of the court, alter such trade-mark, so that he does not alter any of the essential particulars of such mark. Then follow provisions as to the manner in which such alteraton is to be effected, and provision is also made for alterations in the address of a registered proprietor. This last provision appears to be intended to relate only to alterations of the entry of the address in the register, and not to alterations of an address appearing as part of a trade-mark. Accordingly, when alterations of the latter description have been desired, application has been made to the court to sanction them, as in Ex parte Lazenby (February 26, 1880), in which Malins, V.C., allowed an alteration of a trade-mark in respect of an address and some other details included in it. Aud

in Ex parte Walker (July, 1878) the same Vice-Chancellor allowed a trade-mark consisting of the letter "W.," a crown, and the word "Netherton" to be altered by substituting the word "Dudley" for the word "Netherton," holding the address not to be an essential particular of the trade-mark, and the case to be therefore within the 35th rule, which allows alterations in non-essential particulars.

CASES OF THE WEEK.

PATENT INJUNCTION-INFRINGEMENT. -In a case of Lister v. Pearson, before Cave, J., Vacation Judge, on the 1st inst., a motion was made by the owners of a patent, taken out in 1871, for improvements in looms for weaving pile fabrics, to restrain the infringement by the defendants, who were machine makers, and formerly in the employ of the firm of one of the plaintiffs. The patented machine was a combination for cutting velvets and pile fabrics so as to impart an equal lustre to both parts. The infringement related to a knife or blade working between sharpening rollers, used for separating the velvet or pile fabric, and making two distinct surfaces. CAVE, J., said he must grant the injunction asked for. In his opinion, on the evidence, it was clear the defendants were infringing the plaintiffs' patent, and their affidavits to the contrary were too bald for him to rely upon. It had been argued that the specification was bad, on the ground that an ordinary mechanic could not construct the machine from it. In his opinion that was not so, and the specification was perfectly good. He should grant an injunction until the trial, and the costs of both parties would be costs in the action. The plaintiffs must give the usual undertaking in damages.-SOLICITORS, Speechly & Co; Johnson & Wetheralls.

INJUNCTION CHARGE ON SHARes-Debt due-PRACTICE -STAMP.-In a case of Terrell v. Oppert, before Cave, J.. on the 1st inst., a motion was made by the plaintiff, who held a charge on all shares coming to the defendant in a limited company in respect of sums due for costs, to restrain the defendant from dealing with the shares until the trial. The defendant denied that anything was due, and had in fact commenced an action against the plaintiff for an account and payment. The defendant also alleged in his affidavit that the plaintiff's manager had come to him and on several cccasions recently had offered him sums in settlement of the claims by the defendant against him, and certain other persons. This, it was alleged, showed that a sum was due from the plaintiff to the defendant, and that no injunction ought to be granted. Certain shares had been recently transferred to the defendant's name, and the plaintiff moved to continue an interim order he had obtained until the trial. An objection was taken by the defendant that the plaintiff's charge was not stamped, and after some discussion it was ordered that the registrar could consider and adjudicate upon the necessity of a stamp for the document, and should refer to the judge on the point. On the main question, CAVE, J., said he must grant an injunc tion to restrain the defendant dealing with the shares until the trial, as the plaintiff's debt was in respect of costs; he would, however, allow the defendant to take ont a common order to tax and make an application to him to expedite the taxation.-SOLICITORS, Terrell, Harper, & Co.

PRACTICE-INTERIM RECEIVER-BILL OF SALE-FORE. CLOSURE-DISMISSAL OF ACTION-REMOVAL OF MORTGAGED CHATTELS.-In the case of Payne v. Jacobs, before Cave, J., Vacation Judge, on the 3rd inst., a motion was made by the defendant to restrain the plaintiff from removing certain stock-in-trade alleged by the defendant to be comprised in a bill of sale. The action was for an account and redemption, and all matters in dispute were referred to an arbitrator who awarded that a large sum was due to the defendant, and that, unless such sum was paid before a day now past, the action should be dismissed. The defendants now alleged that certain stock-in-trade comprised in the bill of sale was being removed, and they

SMALLPOX HOSPITAL-NUISANCE-INJUNCTION-LACHES. -In a case of Chambers. The Managers of the Metropoli tan Asylum District, before Cave and Kay, JJ., sitting as a divisional court, on the 3rd inst., a motion for an injunction was heard by way of appeal from Bowen, J., at chambers, to restrain the defendants until the trial of the action from sending any more smallpox patients into their Fulham hospital. The evidence of one of the plaintiffs, the lessee of some adjoining athletic grounds, was to the effect that his business was being destroyed by the hos pital. There was also evidence by another plaintiff, the owner of land round the hospital, as to the nuisance, and the other plaintiff, who lived near, deposed that his daughter had caught the disease. The plaintiffs had also the affidavits of physicians in the district, who stated that the hospital was a centre of contagion, and that the district was never free from the disease when there were patients in the hospital. Plans were produced giving the numbers of smallpox patients within radii of a quarter of a mile, half a mile, three-quarters of a mile, and a mile, and which showed an enormous proportion of cases near the hospital. Affidavits had been filed on the part of the defendants, showing that the hospital was very carefully managed, and that the cases of smallpox near the hospital could be traced to other causes. The case was partly argued on the 25th ult., when it stood over to enable an arrangement, if possible, to be carried out, and eo prevent an injunction being granted. This, however, was not assented to, and the case was resumed on the 3rd inst. The court called upon the defendants to show cause why they should not be restrained from sending patients from outside districts to the hospital. It was then contended for the defendants that the plaintiffs, by reason of their laches in not commencing an action until 1881 against a hospital opened in 1877 had lost their right to an interisa injunction. CAVE and KAY, JJ., held upon the evidence that an injunction ought to be granted, and they stated that they had determined to restrain the defendants until the trial from bringing inpatients to the hospital from any district lying beyond a radius of one mile from the hospital. The order would be without prejudice to any question, and the plaintiffs must give the usual undertaking in damages.-SOLICITORS, John Tomlyn; Few & Co.

PRACTICE-SERVICE OF WRIT OUT OF THE JURISDICTIONCONFLICT AS TO CAUSE OF ACTION WITHIN JURISDICTION— FORM OF ORDER.-In a case of Nottage v. Aitken, before a divisional court, Williams and Kay, JJ., sitting on on the 7th inst., a motion was made by way of appeal from an order of Cave, J., in chambers, refusing to discharge a previous order of Bowen, J., allowing service of the writ in the action on the defendants in Scotland. The defendants had appeared, but their solicitor had made an affidavit stating that the appearance was entered under a misapprehension, and that, when he did so, he was misled by the plaintiff's affidavit, and did not know that no cause of action had arisen in England. By leave of the court the question was also argued on the footing of the present appeal being to set aside the appearance. The affidavit of the plaintiff upon which leave to serve the writ had been given, was not very explicit, and the defendants positively denied (the action being one for penalties for a piracy) that they had sold any of the pirated articles within the jurisdiction. They alleged that they had sold the articles in Glasgow to a Scotch firm. For the plaintiff it was Dow argued that the defendants by appearing had waived their objection to the jurisdiction, and further that there was suf

'ficient evidence of the cause of action arising in England to justify the order of Bowen, J. For the defendants it was submitted that, at any rate, there was a conflict of evidence, and that an order in the form of Diamond v. Sutton (L. R. 1 Ex. 130) should be made. WILLIAMS, J., said that the plaintiff ought to satisfy the court that the cause of action arose within the jurisdiction. The plaintiff's affidavit was not very satisfactory, and, on the other hand, the defendants distinctly swore that there was no cause of action within the jurisdiction. That being so, there was a conflict on the point, and, therefore, he thought the case was exactly analogous to that of Diamond v. Sutton, where Martin, B., had required the plaintiff to undertake to be nonsuited unless he could prove at the trial a cause of action within the jurisdiction. In the present case the plaintiff must give an immediate undertaking in the same form, otherwise the appeal would be allowed and the leave to serve the writ and the appearance of the defendants set aside with costs. If the undertaking were given, then the costs would be reserved. KAY, J., concurred. He said that in an ex parte application the greatest good faith was required, and the affidavit filed by the plaintiff was by no means sufficiently explicit. Moreover, the plaintiff had not chosen to deny the affidavit of the defendants that no cause of action had arisen within the jurisdiction. There might, however, be a cause of action within the jurisdiction, and, therefore, the proper order would be one similar to that in Diamond v. Sutton.SOLICITORS, Druce, Jackson, & Attlee; Chorley, Crawford, & Chester.

THE RAILWAY COMMISSION.* July 12, 13; Aug. 6.-Richardson and others v. Midland Railway Company.

Undue preference-Brewers' traffic-Railway and Canal Traffic Act, 1854, a. 2.

To a complaint under section 2 of the Railway and Canal Traffic Act, 1854, of an inequality of charge, it is no answer that the traffic favoured and the traffic prejudiced are not in the same locality; and, assuming that there is a competition of interests, and that circumstances in other respects are not dissimilar, the traffic of two localities, both on the same system of railways, although at a distance from each other, is as much within the Act as the traffic of two or more individuals in the same locality.

Nicholson v. Great Western Railway Company (5 C. B. N. S. 366) followed.

A railway company carried beer from B. at less rates than from N., which was forty miles distant from B. Upon complaint by brewers at N. that their traffic was unduly prejudiced by not being carried on as favourable terms as from B., it appeared that the railway company charged all brewers at B. a uniform rate of 14. per ton per mile, station to station, with a minimum of 5s., including loading and unloading, and an abatement off the quoted rates of 9d. per ton for loading or unloading, and 44d. per ton for haulage when the brewers did those services themselves instead of employing the railway company to do them, and that the railway company's charges for brewers' traffic from N. exceeded the charges from B. to the extent of twenty-five to thirty per cent.

Held, that the lower charges for carrying beer from B. were justified.

This was a complaint by two firms at Newark, one doing business as brewers and maltsters, the other as maltsters only, that their traffic was unduly prejudiced by the Midland Railway Company, by not being carried on as favourable terms as to rates and in other respects as Burton traffic.

It appeared that there were agreements in force between the Midland Railway Company and Messrs. Bass & Co. (dated in 1860, 1861, and 1863), by which, in consideration of Messrs. Bass & Co. agreeing to send their ale, and some parts of their other traffic, by the Midland Railway, the Midland Railway Company engaged not to charge them higher mileage rates than those specified in the agreements, or than the rates which any other company might at any time charge to any other brewers in Burton.

The agreements with Bass & Co. were the only ones of the kind the Midland Company had at Burton, but the rates at which they carried under them for Bass & Co. had become in practice the rates at which they carried for all brewers in Burton.

No difference was now made as respects charges for convey.

* Reported by W. H. MACNAMARA, Esq., Barrister-at-Law.

ance, direct or indirect, between Bass & Co. and any other brewers at Burton; but all had alike had the benefit of the agreement rates extended to them, and they were under no conditions or obligations which might account for their being given a preference over traders not in Burton, such as employing the Midland Company only as their carriers by railway or guaranteeing it a minimum quantity of traffic. The agreement rates thus made the standard of Burton rates in general fixed the charge for beer from Burton at a uniform rate of 1d. per ton per mile, station to station, with a minimum of 5s.. and that for stores, malt, and barley at 1d. per ton per mile, with 2. 6d. added, station to station, exclusive of loading and unloading, grain to be carried according to the scale as to weight given in the classification of the clearing house. The rates, however, which the company quoted to and from Burton, were in many cases, from the competition of other railway companies, or from other causes, below the full amount they might charge by the agreements, and the company also remitted portions of their quoted rates in the shape of drawbacks or allowances.

The Burton rates nominally, or rather in the terms of the agreements, were exclusive of loading and unloading, but they were now deemed to inclu le those services. The principal brewers at Burton loaded and unloaded for themselves, and they also did the haulage over the company's branch lines in Burton, between their breweries and the company's deposit-sidings adjoining the main line, and for doing these services themselves, instead of employing the railway company to do them, they were allowed off the quoted rates abatements of 93. per ton for loading or unloading, and 4d. per ton for haulage.

Gully, Q.C., and J. E. Russell, for the applicants.

Pope, QC., Webster, Q.C., and Sutton, for the respondents. The COMMISSIONERS, in delivering judgment, said :—We decided in Bell v. London and North-Western Railway Com pany (19 SOLICITORS' JOURNAL, 715, 2 Nev. & Mac. 185), which was a case about the unloading of staves for casks at Burton, that a difference of 9d. in the gross rate, according as the unloading of staves was done by the company or the consignee, was more than was right, and it appears that the course the company has since taken has been to continue the allowance of 9d. to brewers who load or unload, whether the load be staves or any other goods, and to make brewers an allowance of half that sum, or 44d. per ton, if required to load or unload for them. In effect, therefore, the net Burton rates are now all round 44d. less than they appear on paper. Newark is another place on the Midland system, where the Midland Railway carry brewers' traffic, but their charges at Newark are considerably higher than at Burton, and are alleged to exceed the latter to the extent of 25 to 30 per cent., and the questions raised by the applicants is whether the rates on their traffic are due and reasonable as compared with the lower rates on like traffic to and from Burton. The chief points of difference are in the amount of the rates, the computations of weight for the articles of malt and barley, and the mode of charging for consignments not exceeding 500lbs. in weight.

As instances of rates on traffic inwards, Thrapstone to Newark and Bedford to Burton are each a distance of seventy-eight miles; but the rate for malt and barley (stations to stations) to Newark is 10a., and to Burton to the premises of the brewers, 8s. 6d. Cambridge to Newark is 116 miles, and to Burton 103. The rate to Newark is 12s. 6d., to Burton 103. 7d. It must be observed also, as regards the rates to and from Burton, that they are the published rates, and that, as already explained, the Burton rates, as published, are in excess of the net rates by 4d. per ton.

It is not contended on the part of the railway company that it is any answer to a complaint of inequality of charge that the traffic favoured and the traffic prejudiced are not in the same locality; and, assuming that there is a competition of interests, and that circumstances in other respects are not dissimilar, the traffic of two localities, both on the same system of railways, but it may be at a distance from each other (and Newark is forty miles from Burton), is as much within the Railway and Canal Traffic Act of 1854 as the traffic of two or more individuals in the same locality is. This was, in effect, decided in Nicholson v. Great Western Railway Company (5 C. B. N. S. 366). That was a complaint that the railway company gave an undue preference to the coal traffic of the Ruabon Coal Company,