issued only for the balance of the moiety of the loss sustained by the greater sufferer, after deducting the moiety of the loss sustained by the other vessel." This was a view he could not adopt. "A monition is, according to the practice of the Admiralty Court, the first step in the process to enforce payment, not the declaration of liability; and though it issues only for the balance of the sums for which the parties have been declared liable, each to each, yet this, in my opinion, is done only as a matter of convenience to work out the result of the cross-claims, to avoid process being issued by each party against the other." With such opposition between the two sets of judges, namely, the MASTER of the ROLLS and Lord Justice BRETT on the one side, and Lords Justices BAGGALLAY and COTTON on the other, the case upon which we have touched cannot be considered a satisfactory one. It will be a misfortune if it is not carried up to the House of Lords.

INASMUCH as the 37th section of the Bankruptcy Act 1869 appears to contemplate the possibility of a double proof in bankruptcy, decisions such as that of the Court of Appeal in Ex parte Banco di Portugal, Re Hooper (40 L. T. Rep. N. S. 406) are extremely valuable. In that case two persons carried on business in partnership in two different places, namely, as wine merchants in London under the firm of R. Hooper and Sons, and in Oporto as shippers of wine under the firm of R. Hooper Brothers. The Oporto firm drew bills of exchange upon the London firm. These bills were accepted and subsequently discounted for the Oporto firm by a Portuguese bank. The London firm filed a liquidation petition, and the affairs of the Oporto firm were liquidated according to the Portuguese law. The bank received a dividend from the Portuguese assets in respect of the bills, and then claimed to prove on the bills in the English liquidation. Now the 37th section of the Bankruptcy Act 1869 provides that if any bankrupt is at the date of the order of adjudication liable in respect of distinct contracts as member of two or more distinct firms, or as a sole contractor, and also as a member of a firm, the circumstance that such firms are in whole or in part composed of the same individuals, or that the sole contractor is also one of the joint contractors, shall not prevent proof in respect of such contracts against the properties respectively liable upon such contracts. Did this section give to the bank the right claimed? The registrar had decided that the proof could be admitted only upon condition that the bank should not receive any dividend thereon until the other creditors had received a dividend equal to that which the bank had received in the Portuguese liquidation. The bank appealed on the ground that they were entitled to prove in the English liquidation without giving credit for what they had received from the Portuguese assets. In reference to this contention it was material to consider the effect of Ex parte Wilson, Re Douglas (26 L. T. Rep. N. S. 489), which was analogous to that before the Court of Appeal. In that case the Court held that the 152nd section of the Bankruptcy Act 1861 did not apply unless there were two estates to be wound-up. That section, however, differs from the 37th of the Act of 1869, in that the words "having two estates to be wound-up," which were contained in the earlier Act, were omitted in the later, and it was urged that the only necessary condition under sect. 37 was the existence of distinct contracts. Lord Justice JAMES met the argument by pointing out that the words above mentioned were omitted merely because they were surplusage, consequently no distinction could be drawn between the two cases, Ex parte Wilson and Ex parte Banco di Portugal. "The only distinction intended to be made, as I gather," said his Lordship, "and the only distinction in fact made between the 152nd section of the former Act and the 37th section of the present Act, was that the former was confined entirely to bills of exchange and promissory notes, and that limitation was left out of the subsequent enactment, which was meant to apply to any other contracts." Lord Justice BRAMWELL had a difficulty in seeing how the 37th section applied: "It is a section for, in certain cases, the permitting of double proofs. I am fully sensible of the difficulty there is in the construction. It is, however, a section for the non-prevention of double proofs, and it contemplates double proofs, therefore, and to my mind, it contemplates that there must be two estates." Having examined the action of the Portuguese courts, and pointed out that there were not two estates, the one an English estate, the other a Portuguese estate, his Lordship went on to inquire into the claim made on behalf of the bank here to prove against the estate: "What is proposed now? That they shall be admitted to prove against the same estate here. In respect of what? In respect of the indebtedness. I suppose it would be put upon that ground, treating it as though the bank had made a sort of proof, received a sort of dividend in respect of the drawee in Portugal; but that is not so. What the Portuguese courts do is not to make a separate estate, as it were, but to lay hold of what property they can get, and distribute it among the Now it seems to me, therefore, that there are not two estates, one in Portugal and one here, and consequently there is not a possibility of a double proof. Consequently the 37th section does not apply, and I am further of opinion that that case of Ex parte Wilson, Re Douglas, is in point, and I am satisfied with the reasons of it." This decision of the Court of Appeal is valuable, not only as enunciating the rule of law that there cannot

creditors.

be a right of double proof unless there are two estates, but also as indicating the circumstances under which it can be said that there are two estates.

:

AN extremely important decision as to what constitutes a piracy under the penal clause of the Copyright of Designs Act 1842, was pronounced by the MASTER of the ROLLS in a case of Mallet v. Howitt. The material words of the 7th section are, that "no person shall do, or cause to be done, any of the following acts (1) No person shall apply any registered design, or any fraudulent imitation thereof, for the purpose of sale to the ornamenting of any article of manufacture; (2) No person shall sell, or expose for sale, any article of manufacture," after, in effect, having notice that it is an infringement of the registered design. It will thus be seen that the Legislature distinguishes between the cases of applying, or causing to be applied, for the purpose of sale, in other words, manufacturing, or causing to be manufactured, and selling or exposing for sale, in which case a scienter of the piracy is necessary before any offence is committed. In the above case it was not shown that the defendant, whose design was, according to the MASTER of the ROLLS, a clear imitation of the plaintiff's registered design, knew of the registration, and the question was therefore argued, when under the first part of the section, it was not necessary also to show knowledge. On this the MASTER of the ROLLS was clear that the Legislature intended to distinguish between manufacturing and selling, and that in the case of a manufacturer he did so at his own peril; that it was his business to inquire whether a design was registered, and that if he chose to manufacture without inquiry, and it turned out that the design was registered, he must take the consequences, and that he would be guilty of piracy. In the case of selling or exposing for sale, his Lordship pointed out that no such result was intended, and that no offence would be committed until it was shown that the offender had a guilty knowledge. In Mallet v. Howitt no offence could be proved under the second part of the section, as, immediately the defendant received notice of the piracy he at once stopped the sale of his design, and, therefore it was only attempted to fix him under the first sub-section. What the defendant had done was as follows: It appeared that he had received the design complained of from an anonymous sender on the 18th April, 1878, before the registration of the plaintiff's design (which did not take place till the 20th), and that the defendant thereupon gave such design, together with numerous others, to a lace manufacturer to be used by him if possible, and on the terms that if such pattern turned out a success, the defendant was to have the first call of it for the purpose of sale. The manufacturer only made what was called undressed lace, and this lace was then sold to the defendant, and sent by him subsequently to other persons for the various processes necessary to convert it into dressed lace ready for the market. The defendant's pattern turned out successful, and one package of undressed lace of such pattern was sold to the defendant, and a small portion resold by him to another purchaser, but nothing further occurred before the defendant had notice of the registration. On these facts, and as the defendant was only proved to be the merchant, and not in any sense the actual manufacturer, it was argued that he did not come within the meaning of the section, and had not even " caused the design to be applied" to the lace. The MASTER of the ROLLS was, however, clearly of opinion that an offence had been committed under the section, and that the defendant had " caused the design to be applied for the purpose of sale." He said that it was never intended that the person should actually manufacture himself, and, as a matter of fact, this rarely happened, the manufacture being always by means of servants or workmen. But if a man set the manufacture on foot, or took an active part in the manufacture, that would be quite sufficient to fix him under the extensive words "causing to be applied." In his opinion the defendant had "caused" the design to be manufactured, and therefore that the plaintiffs were entitled to his judgment in that issue. His Lordship's construction of the section will, as was stated, have considerable bearing on the Nottingham lace trade, but the decision will also be of much practical importance to persons who may have been at great expense in registering new designs, and who must be benefitted in having a large interpretation put upon the words of the section. The decision will remove the responsibilities of manufacturers, but, as was also pointed out by the MASTER of the ROLLS, there is, in consequence of the provisions of the Act, very little difficulty in finding out whether a design is registered or

not.

66

THE RIGHT OF OWNERS OF FORESHORE TO
DESTROY NATURAL SEA BANKS.

MR. JUSTICE FRY was recently occupied for more than four days with a case of great importance to owners of lands adjoining the sea coast. The river Deben runs into the sea at a point called Bawdsey Haven, on the coast of Suffolk, and on the right bank of the river, not far from its mouth, the Crown is the owner of an inclosed piece of land, which adjoins the sea shore, on part of which land is a martello tower. Colonel Tomline is the lord of the manor in which the land is situate, and is the owner of the

shore. On the shore, and extending between the Crown land and the sea, there is a bank of shingle, which is of an "accumulative" nature; that is to say, if left alone from year to year it will increase, although it is liable to be temporarily decreased in size by the occurrence of gales from certain points of the compass. For some time prior to the commencement of the action which has just been tried (The Attorney-General v. Tomline), Colonel Tomline, the defendant, had been in the habit of selling shingle from the bank and the shore in various quantities, for various purposes, including that of ballast for ships, and, in consequence of the removal of the shingle in large quantities, the bank became so much decreased in size that apprehensions were entertained by the Crown that its lands would be flooded and the martello tower destroyed; hence the present action, which was for an injunction to restrain the removal of " any shingle from the natural barrier of shingle" protecting the Crown land from the sea. It is rather curious that there is no direct authority on the question whether a subject who is the owner of the foreshore can so use his property as to cause the sea to make inroads and imperil the existence of the lands of other people behind him. Perhaps the nearest approach to an authority is the case of Hudson v. Tabor (36 L. T. Rep. N. S. 492; L. Rep. 2 Q. B. Div. 290), where the Court of Appeal, affirming the judgment of the Queen's Bench Division, held that, in the absence of a prescriptive liability to repair, the owner of land adjoining the sea, on which land was a sea-wall, was not bound to keep the wall in repair. As Mr. Justice Fry pointed out, there is a considerable difference between having no obligation to repair and having the right to destroy. The Attorney-General, in opening the case for the Crown, although, luckily for his case, he did not abandon the right of the Crown under its prerogative, relied mainly on the Crown's right as a landowner to have the barrier of shingle preserved. The learned law officer argued that the case was governed by the decision of the House of Lords in Fletcher v. Smith (L. Rep. 2 App. Cas. 781), where it was held that a mine-owner, who for his own convenience had diverted a stream, was bound to take care that the new course provided for it was sufficient to prevent mischief from an overflow; and that, if a defendant was so liable, he would a fortiori be liable, if he destroyed the natural course of a stream and did not make any artificial course in substitution, for any damage thereby occasioned to his neighbour. Various defences were raised on behalf of the defendant, and first, that the defendant had a right to use his own land in a natural manner, and that if the owner of the adjoining land wished to prevent his land being damaged he ought to put up an artificial barrier. It was also argued that the Crown's duty, if it had a duty, to protect the lands of the realm from the encroachment of the sea, was to do so at the common expense, not by compelling one landowner to do so, who would thereby be disabled from using his own land, and have a greater burden thrown on him than was borne by the rest of the community. The arguments and judgment in this case are long and learned, and it is not our intention to discuss them in detail at present. Suffice it to state that the court, after commenting on such authorities as had reference to the question, decided that the Crown was entitled to the injunction asked, on the ground that there was a prerogative and duty in the Crown to protect the lands of the realm against inundation, that every one of Her Majesty's subjects was entitled to have that duty enforced, and that the defendant had violated that right.

LANDLORD AND TENANT-RIGHT OF TENANT TO RECOVER PAYMENT FOR PROPERTY TAX. THE Queen's Bench Division has been recently engaged in the examination of a question of no less importance than novelty in the law of landlord and tenant. That question was the legality of an agreement by a landlord to repay amounts of property tax which had not been deducted from the rent; or rather, the right of an occupier to recover from his landlord payments made by the former in respect of property tax, such payments not having been deducted from the rent at the request of the landlord: (Lamb v. Brewster and another, 40 L. T. Rep. N. S. 457.) By 5 & 6 Vict. c. 35, s. 103, it is provided that if any person shall refuse to allow any deduction authorised to be made by the Act out of any rent or other annual payment mentioned in the 9th and 10th rules of No. 4, Schedule A., he shall forfeit the sum of fifty pounds, and all contracts, covenants, and agreements made or entered into for the payment of rent. The claim in this case was for six years' property tax paid by the plaintiff as tenant of a testator, the plaintiff alleging that the testator promised the plaintiff that, if he should continue to pay the rent in full, without deducting anything for the payment of the property tax, the testator would pay to him all sums which he had paid or shoald pay for such property tax. The defendants demurred. In support of the demurrer a number of cases were cited, and it was argued that the payment was voluntary, and the agreement itself illegal.

A reference to the cases will show that the actual point raised has not been the subject of legal decision, although there are not wanting authorities in which the courts have refused to allow to a tenant or occupier any right to claim for payments of pro

perty or land taxes which he has neglected to deduct out of the rent as it accrued due.

One of the leading cases with reference to the right of a tenant to recover from his landlord payments of property tax made by the former, is that of Denby v. Moore (1 B. & Ald. 123). In that case the plaintiff was the occupier of land belonging to the defendant. For many years the defendant had received the full amount of his rent from the hands of the plaintiff, without deducting or allowing for the landlord's property tax charged upon the premises, although the same was duly paid by the plaintiff as such occupier. No demand for the payment of the property tax was made at the time of the payment of rent by the plaintiff. After the lapse of twelve years from the time of the first of such payments being made, the plaintiff claimed repayment of the amount so paid by him. The question for the court, which consisted of Lord Ellenborough and Justices Bayley, Abbott, and Holroyd, was whether the plaintiff was entitled to recover for all or any part of those payments. His claim was urged as being founded upon the principle that when a man pays money for another, who is under a legal obligation to pay it, assumpsit will lie. On the other hand, it was contended that, inasmuch as 46 Geo. 3, c. 65, had pointed out the mode by which the tenant could obtain redress, namely, by deducting the amount of the tax out of the next rent, the tenant ought to have adopted it, and having neglected to do so, could not now avail himself of the common remedy by action. A judgment of nonsuit was entered. Having mentioned that the payment was made at a time when the tenant was able to deduct the sums in question, and that the payment was a voluntary one, and irrecoverable, being made with knowledge, Mr. Justice Holroyd went on to examine another ground against the plaintiff's claim, namely, that it was a fraud upon the Property Tax Act: "If the tenant had insisted on deducting the tax from the next rent that became due, the landlord might, and probably would, have raised the rent if the tenant be allowed not to deduct immediately, but to go on paying for many years, and then to call on the landlord to repay him altogether, that will have a tendency to defraud the revenue. The tenant will thereby have a great advantage. If he does not, as in the case before the court, deduct the £10, it is an admission on his part that the land which is let to him for £100 is worth £110. But if so, the Government ought to have received £11 per annum, and not £10, which they have done." Mr. Justice Abbott, whilst agreeing with the rest of the court in this decision, suggested that there might be cases in which a tenant could recover. Nor would he affirm that the clause giving the power of deduction took away all other remedies.

Stubbs v. Parsons (3 B. & Ald. 516) was an action in replevin. The defendant made cognisance, as bailiff of A. and B., under a demise, for a quarter's rent. The plaintiff pleaded as to a sum of money, parcel of the said rent, that before the said rent became due divers sums of money had from time to time duly assessed and rated upon the premises for the land tax due in respect thereof by virtue of the statute in such case made and provided; and that from time to time the plaintiff, as tenant and occupier of the dwelling-house, in pursuance of the said statute was called upon to pay the sum due by land tax, wherefore he deducted that sum. To this plea the defendant demurred because it did not contain a statement that the land tax became due after the accruing of the rent out of which it was sought to be deducted. The Court, consisting of Justices Bayley and Holroyd, agreed in substance with the defendant's argument, for they held that the plea in question was bad for not stating the specific periods for which the respective sums were assessed or paid, and in not stating that the payment was not made after the rent distrained for had accrued or was accruing. "A payment to the land tax," said the former learned judge," can only be deducted out of the rent which has then accrued or is then accruing due, for the law considers the payment of the land tax as a payment of so much of the rent then due, or growing due, to the landlord; and if afterwards he pays the rent in full, he cannot, at a subsequent time, deduct that overpayment from the rent; he may, indeed, recover it back as money paid to the landlord's use." Mr. Justice Holroyd pointed out that, if a tenant was allowed to deduct a payment for land tax made previously, the assignee of his lessor might be made liable. Hence the rule that the occupier had a lien on the next rent given him by the Legislature for the land tax paid by him; but, if he parted with the rent without making the deduction, he lost his lien, and had only his remedy by action or set-off.

The above case turned in effect upon the true construction of 38 Geo. 3, c. 5, s. 17, which provided that the several tenants should pay such sum as might be rated upon their houses, and deduct out of the rent so much of the rate as in respect of the said rents of any such house the landlord ought to bear. Denty v. Moore (1 B. & Ald. 123) was a decision upon the Property Acts; and cases like Sapsford v. Fletcher (4 T. R. 511) and Taylor v. Zamira (6 Taunt. 524) were distinguishable, for in each the payment was made after the rent, from which it was sought to be deducted, had accrued or was accruing.

Tax

The decision of the King's Bench in Denby v. Moore was discussed at some length by the Court of Exchequer in the subse quent case of Cumming v. Bedborough (15 M. & W. 438), which

turned upon the construction of a rule given in the Property Tax Act (5 & 6 Vict. c. 35), which in this particular is identical with the 46 Geo. 3, c. 65. In that case the action was for money paid to the use of the landlord. The plaintiff was tenant of three of the defendant's houses. An execution having been put into one of the houses, the defendant claimed from the plaintiff arrears of rent amounting to £140. Ultimately the execution creditor agreed to take the furniture and pay the defendant £100. The defendant subsequently distrained on the other two houses for £185 rent due at Christmas 1844. It was then agreed between the plaintiff and defendant that the latter should take the furniture in one of those two houses for £295, from which the sum of £205 was to be deducted for rent and other charges. The balance of £90 was to be retained as security for rent thereafter to become due for one of those two houses, and of any rates and taxes then due. It was contended that the plaintiff was entitled to a verdict for the amount of several payments made by him for property tax which he had not deducted out of the subsequent payments of rent. Lord Denman directed a verdict for the defendant on the authority of Denby v. Moore, reserving leave to the plaintiff to move. The rule obtained pursuant to such leave was discharged. "In the first place," said Baron Parke, "I am of opinion that the tenant, after he has paid the property tax, and omitted to deduct from the next rent, cannot sue the landlord for the amount. He is not in the situation of having paid money to the use of the landlord, but in that of a tenant who has paid rent in advance. The transaction between those parties in January 1815 was in the nature of a compromise, and thereby all demands were settled up to that time, and the plaintiff did not then claim to be entitled to deduct the property tax. Not having done so, he cannot recover it back, either as money paid or money had and received." To the same effect Baron Alderson remarked that money had and received would not lie, because it was not shown that the rent was overpaid at all, and that the payment was either a voluntary payment or none at all.

The noteworthy point in all the above decisions is, that there was no request made by the landiord not to deduct. Consequently the argument that the payments made by the tenants were voluntary was upon its face an argument of force. This distinction, it will be seen, was material to the decision.

None of the cases quoted during the argument in Lamb v. Brewster and another convinced the learned judges that the agreement was an improper one. "In the cases cited," observed Mr. Justice Mellor, "the judges have used strong expressions as to the policy of the Property Tax Act, but I do not think that the decisions in those cases go further than this, that when a tenant does not take the opportunity upon the next payment of rent to deduct the amount of property tax, then the payment of the tax must be held to have been voluntary, and so no action would lie for its recovery. But here the case is altogether different, for a demand for deduction was made, and it was only at the request of the landlord that the tenant abstained from insisting on it; that too upon a promise of subsequent payment." Mr. Justice Field agreed with this view, and the demurrer was overruled. Of course it does not follow from this result that the plaintiff has made out his claim; his difficulty may be to prove the agreement upon which he relies. There is, however, no difficulty in distinguishing the case, so far as it goes, from previous authorities.

ON COVENANTS WHICH RUN WITH THE LAND AT LAW.

Ir remains to speak of covenants which "inhere" in the land although there is no privity of estate between the covenantor and covenantee. Of these we had two examples in the above-cited cases of the prior and of the two coparceners. Here we observe that, although the covenant ran with the land as in favour of the covenantee, it was a mere personal covenant as against the covenantor; the benefit of the covenant ran with the land, but the burden did not run at all, and remained a mere personal obligation. In the case of the prior, the covenantor was a corporation, and therefore in the eye of the law lived for ever and was for ever liable. In the case of the two coparceners, the covenantor himself appears to have been sued in person. If he had died, the liability would have descended upon his executor or administrator, not upon the assignee of his share of the land. It was perhaps this fact, that in these cases there was nothing with which the burden could "run," which afterwards gave rise to the doubt (if indeed it is not more than a doubt) whether the burden of a covenant would ever run with the land. That the benefit would 80 run could not of course be doubted, in sight of the cases above mentioned.

Although the subject of covenants without privity lacks some features which give logical precision and completeness to the subject of covenants with privity, yet there was no reason why it should not be kept free from perplexity and confusion. The latter subject displays a simple and harmonious theory, which does not at all depend for its reasonableness upon any peculiarities of English law. If two persons, having between them privity of estate in respect of the same land, have entered into a covenant directly affecting the nature and enjoyment of that land, the

doctrine that the bond established between them by the covenant shall always hold good as between the persons who for the time being are their successors in the respective estates which gave them their mutual privity of estate, is a doctrine so reasonable in itself that it might find a place in the most scientific code ever drafted. And this is, in fact, the doctrine laid down by the Act of Hen. 8. Having this excellent pattern to guide them, the interpreters of our law, when they found themselves saddled by Spencer's Case with the necessity of admitting some covenants to run with the land without any privity of estate between the parties, might have laid down rules for their guidance which should be perfectly clear. There was no difficulty (or, at least,. no greater difficulty) about the subject-matter of the covenants; for this was and is confessedly the same as in covenants with privity. Then it only remained to observe that upon one side, viz., on the side of the party who had rot got the land, the covenant was merely personal. The covenant might then be allowed to run with the land, both as regards the benefit and the burden, as nearly as circumstances would permit,. in the same manner as when there was privity of estate between the parties. But the actual course of legal interpretation did not attain either to this simplicity or to this reasonableness> The clouds continued to gather till the keenest vision could not pretend to see its way clearly, as sufficiently appears by Keppel v. Bailey (2 M. & K. 517), the last case, we believe, in which the authorities were exhaustively cited and discussed.

Analogy would have demanded that the terre-tenant should be the true successor in title of his predecessor, with whom or by whom the covenant was made; that he should have the same estate, neither more nor less, and be in by the same title. This, however, was not the law, as clearly appears by the prior's case. It is true the authorities lay it down that the terre-tenant must be in of the same estate as his predecessor; but, as the terretenant in the prior's case was tenant in special tail, while the original covenantee was tenant in fee simple, it is plain that the phrase does not imply identity of estate. The "one" whom the grandfather" did enfeoff in fee," and who gave the manor in special tail to the younger son and his wife, retained in fact a reversion in fee simple upon the special tail estate, and, by analogy with the law relating to covenants with privity, the terre-tenant would have had no more right to sue upon the covenant than the under-tenant of a lessee would have the right to sue the lessor. And yet it was adjudged, Coke tells us, that he "should have an action of covenant against the prior." It was to this class of cases that we referred above, when we said that some cases could not be logically explained without supposing that the covenant was really and truly appurtenant to the land in the fullest sense of the words. For the last pretence of sustaining the relation between the parties as the basis upon which the continuing covenant rests, is gone so soon as we admit any breach of unity in estate between the assignor and assignee, either as regards quantum of interest or devolution of title.

This last point, devolution of the title, was what the authorities were looking to when they laid it down that the assign must be in of the same estate as the assiguor. They meant that he must be in in the per as distinguished from in in the post: a canon which gave rise to one of the most curious of the devices invented by conveyancers. When lands had been conveyed to the common uses to bar dower, the purchaser, if he wished to sell during his wife's lifetime, either selling without her consent, or being desirous to avoid the expense of levying a fine, was obliged to have recourse to his power of appointment in order to make an estate to his purchaser. Then the estate so made was not derived from his own, but from the estate of the original vendor who had created the power of appointment; the new purchaser was in by the latter's act, not by the act of the appointor, and he did not succeed to, but displaced, the appointor's estate. Therefore he was in in the post; and the question arose, whether he could take the benefit of covenants made with the appointor. In order to meet the doubt the custom arose, whenever a conveyance was made to uses, to take the covenants from the seisee to uses, which was done in reliance upon the doctrine that the benefit of the covenants would somehow flow along with the seisin, as the latter by force of the statute from time to time fed the uses which it served. Our readers will perhaps be of opinion that the theory of these covenants was hardly in such a state of delicate adjustment in all its parts, that it could safely bear the strain of so subtile and searching an application. If the analogy above pointed out between covenants with privity and covenants without privity were to be followed, there would be no reason why the burden of a covenant without privity should not run with the land in any case in which the benefit would run. For example, it is conceived that if the prior had covenanted, not to sing in the chapel parcel of the manor, but to keep it in repair, the benefit of this covenant would have passed to any new lord of the manor who was "in of the same estate" as the former lord. Now suppose that, instead of the prior covenanting with the lord, the lord had covenanted with the prior and his covent to keep a chapel parcel of the manor in good and fit repair for them to sing in. No reason that we know of can be given why the burden of this covenant should not run with the land.

But it is, in fact, very doubtful whether the burden of covenants without privity will run, though, as we said, there is no doubt that the benefit will. The nature of the case makes the occurrence of covenants conferring a benefit much more likely to occur in practice than covenants imposing a burden; and this partly accounts for the ambiguity in which the question rests; but not wholly, for the question has repeatedly emerged and seemed to be on the point of being decided, only to elude decision. We have left ourselves no space to speak of the details of the cases. We propose to conclude the whole subject with some examination of the interference of equity to enforce a collateral covenant upon a purchaser who has taken with notice of the covenant-a rank growth which has sprouted up around Lord Cottenham's decision in Tulk v. Moxhay.

LAW LIBRARY.

Precedents of Mortgages, with Practical Notes. By JOHN ANDREWS, B.A., Oxon, S.S.C. London: Reeves and Turner. MR. ANDREWS is favourably known as the compiler of a volume of Precedents of Leases. This companion volume is marked by the same care and intelligence as we observed in the previous work, the notes being in the largest sense practical, and written in a style which makes thoroughly intelligible to the mind of a tyro the precedents to which they are appended. In the work of the conveyancer reliable precedents are an absolute necessity, and Mr. Andrews gives only such as have been settled by counsel, or have been tested by actual use. They comprise Precedents of Memorandums of Equitable Deposits and Agreements, of Mortgages, Miscellaneous Precedents and Forms, Forms of Notices. Stamps are dealt with separately, and a part is devoted to the Trustee Act 1850, Locke King's 1854, Amendment Act 1867, Further Amendment Act 1877 (23 & 24 Vict. c. 149), an Act to give trustees, mortgagees, and others certain powers now commonly inserted in settlements, mortgages, and wills; and the Bills of Sale Act 1878:

The Law and Customs of the London Stock Exchange. By RUDOLPH E. MELSHEIMER, Barrister-at-Law, and WALTER LAWRENCE, of the London Stock Exchange. London: Henry Sweet.

THIS work comes somewhat late-the interest in Stock Exchange matters certainly not being on the increase, but business being in such a condition that few questions are likely to arise for some time to come, in the solution of which Messrs. Melsheimer and Lawrence would be of assistance. Nevertheless, it cannot be said that a little vade mecum of this kind will not be found useful both to those engaged on the Stock Exchange and to the outside public. A barrister, having associated with him a member of the Stock Exchange, has been able to furnish technical details of the business, whilst recording the effect of the legal decisions. This is a distinct advantage to lawyers, many of whom require to be instructed in the mysteries of contango, backwardation, and the dike, before they are in a position to form very clear opinions upon the rights and remedies of parties to transactions connected with stocks and shares. We meet some phrases which we have not met before, such as "cornering," which appears to be a proceeding by which directors of companies allot to nominees or themselves a large quantity of shares, and thereby put into a difficulty dealers who have bought with the expectation of a free market. The reported cases are intelligently explained, and in a small Compass we have concisely stated the law and practice relating to the Stock Exchange.

MR. SHEARWOOD, Barrister, of Lincoln's-inn, has written a guide for students for the Bar, articled clerks, and candidates for University law examinations. The object of the work is to aid those who have not the capacity in the years and amidst the associations of apprenticeship to learn the elements of a science from the ordinary text-books. This class of students ought not to be encouraged the Profession is better without them. It follows that this kind of work is not such as we should desire to see encouraged.

NEW EDITIONS.

MR. WYNNE E. BAXTER (solicitor) has produced a third edition of his work on the Judicature Acts and Rules (London: Butterworths). Mr. Baxter mentions a few facts in his preface quite as of course, which, to our mind, are somewhat startling. The Appellate Jurisdiction Act has been passed, seven sets of new rules have been made, two Orders in Council have been issued, and nearly one thousand cases of practice decided. We should like to know how many practice cases have been decided since the Acts came into operation. How little have the new rules and judicial decisions done to make the practice plain and intelligible! How much have they done to render it chaotic and confused! Authors like Mr. Baxter do all they can to explain the practice, and to him and them the Profession is much indebted. He has in this edition inserted the amending sections in the place of those

repealed, and the cases are all brought down to the date of publication. Mr. Baxter's volume is a most useful work.

Mr. W. D. J. Foulkes has brought out a second edition of his Elementary View of an Action at Law (founded on Smith). All the recent rules will be found in the Appendix, and the result of the cases is incorporated in the volume, which clearly states the steps to be taken in the modern action in the Common Law Divisions.

AMERICAN LAW BOOKS.

A Treatise on the Liability of Stockholders in Corporations. By SEYMOUR D. THOMPSON. St. Louis: F. H. Thomas and Co. WHEN it is stated, as Mr. Thompson states in his preface, that in respect of the liability of what in America are termed stockholders, and in this country shareholders, there is no substantial difference between an American corporation organised without the "individual liability" of some of the States, and an English limited company, the value of this work to the English lawyer will become apparent. Mr. Thompson moreover intimates that he has found the English books rich in cases cn points on which American books are silent, and into those cases he has gone with considerable detail. In his preface Mr. Thompson makes some candid comments upon our English courts and judges. The con⚫ clusion at which he arrives is that Lord Romilly and his contemporary Vice-Chancellors, in dealing with the rights and liabilities of shareholders, "endeavoured to uphold the sound maxims of equity," and that "their efforts were to a considerable extent broken down and discouraged by the Court of Appeal in Chancery, and even by the House of Lords." He has also, he says, been impressed with the conclusion that the English courts of law, in the few cases which they have decided, exhibit a higher appreciation of the principles of honesty (sic) than that exhibited by the Courts of Equity. As an illustration he cites Lord Campbell in Henderson v. The Royal British Bank, and Lord Justice James in Carling's case. It is satisfactory to find that in the main our author has formed a high opinion of the law on several points established by the English Courts of Equity.

As to the merits of Mr. Thompson's work, we may observe that is does not aspire to excel in simplification, nor does it aim at codification. Indeed, it is pure essay writing, without much regard being had to the growing demand for confining propositions within as narrow limits as accuracy will permit. Our author appears to us unnecessarily to labour points which are now beyond controversy; e.g., giving many judicial opinions of the effect of Oakes v. Turquand, upon which case all the judges are of one mind. But a considerable portion of the volume is devoted to an interesting examination of the agreement and divergence of the doctrines established in England and in America, particularly with reference to the effect of fraud and mistake and divestiture of liability. There are no original features in the work, which is devoted principally to stating the facts and law as found in the numerous reported cases. We do not know that as a text-book it adds very much to the material already possessed by us, but, giving as it does the American authorities which are not to be found in any English text-book, it may have a value which it would not otherwise possess. The style is clear, and Mr. Thompson is evidently thoroughly at home in his subject.

The Law of Extradition, International and Inter-state. By SAMUEL T. SPEAR, D.D. Albany: Deed, Parsons, and Co. THIS work is a welcome addition to the law relating to a very important and somewhat troublesome subject; and we may say at once that Dr. Spear handles his theme with skill and judg ment. He begins by investigating the origin of extradition, and after citing some cases, he arrives at the conclusion that they "show that the international surrender of fugitive criminals, except as provided for by treaty, has no basis and no sanction in the usage of the United States. The usage, so far as there is any, is to the contrary effect."

In 1848 Congress passed the first law on the subject, which was supplemented by subsequent Acts in 1860, 1869, and 1876, and the only cases to which that law, by its express terms is applic able, are those arising under treaties. "The obvious implication is," says Dr. Spear, "that there are no other cases of such extradition." The President of the United States, with the consent of the Senate, may make treaties with foreign countries. "The framers of the Constitution," our author says, "seem to have regarded the whole question as being covered by the treaty power, and hence make no other provision in regard to it. That is the source from which Congress derives its authority to enact a law for the delivery of fugitive criminals from other countries." He adds: "If Congress be thus limited in its power, what reasonable pretence can there be for the theory that the President, with no treaty and no law giving him the authority, has the power to order the arrest and delivery of a fugitive crimi nal from another country ?" And, further on, he says "the opinions" (of the courts) " are unanimous to the effect that there is no obligation to surrender fugitive criminals, except as provided for by treaty stipulations."