the present action. The question turns entirely on the true construction of the statute referred to. There is a very old rule in the construction of statutes, that a remedial law shall be construed liberally, but a penal law strictly; and occasions sometimes arise where this rule is applicable, and may govern the construction; but whether a statute be remedial or penal, it is the duty of the court to ascertain its true construction according to the language used, and with reference to the subject about which it is used, and to give effect to that which they discover to be the plain meaning of the Legislature. The present statute is a very remarkable one: it is extremely stringent and prohibitory-it interferes with the common law rights of masters and servants in making their contracts, and it is in some respects penal; it renders null any payment, however honest, and any set-off, however just and correct, if contrary to the statute. Its general policy and object are not avowed and declared by the Legislature-it is a collection of enactments to which we are bound to give effect, but which we cannot extend, under the notion of acting in the spirit of the statute; and the question is, does the statute in any of the enactments apply to the present case? There is nothing in the case before us to throw any doubt on the bona fides of the contract between the employer and the artificer. We must assume that this is not an arrangement to evade or defeat the statute, but is the honest agreement between the parties; and with that assumption-which I think we are bound to make-what are the wages of the plt.? Certainly not the entire sum claimed, for that includes matter which is not furnished by him, but by the master. Is, then, the agreement anything more than a detail of the manner in which the wages shall be calculated and ascertained; or is the use of the machine a mode of payment, and the deduction of that from the assumed price of the articles to be considered as a stoppage of the wages? It appears to me, from the case I am now about to put, that result follows so clearly, that I do not think it necessary to go into any lengthened detailed argument beyond that. Suppose the marketable value of the article produced were made the basis of the calculation, and there were deducted from that first the material of which it was composed, then the other matter mentioned in this case, and the balance remaining were taken to be the wages due; could it be said that the workman was entitled to recover the full marketable value of the article as wages, because the value was made the basis of the calculation, and that the value of the material was a deduction from his wages prohibited by the statute? I should say very clearly no; and I cannot in principle distinguish the case before us from the case I have here supposed, and the deduction of the value of the material from the market value of the article is so obviously a matter of plain justice before you assign anything as the wages of the workman, that I cannot conceive any one acquainted with the subject entertaining any doubt about it, and the benefit the workman derives from the use of the machine, and the deduction made in consequence, appears to me to stand upon precisely the same footing. I think, therefore, that the case of Chawner v. Cummings was rightly decided, and the judgment of the Q. B. must be affirmed. The court being equally divided, the judgment of the court below will be affirmed.

Attorney for the plt., Jeremiah Briggs, 5, High Pavement, Nottingham.

Attorney for the deft., Ashwell, Middle Pavement, Nottingham.

Equity Courts.

ROLLS COURT.

[ROLLS.

Reported by H. R. YOUNG, Esq., Barrister-at-Law.

Tuesday, March 4.

JAY v. RICHARDSON.

Vendor and purchaser-Hotel-Covenant not to build a public-house near to-Notice-Injunction. The plt. was the lessee of the Q. Hotel. The lease of the hotel cont nined a covenant by the lessor that he, his heirs, or assigns, would not build or use any building as a public-house within one quarter of a mile of the hotel. The lessor was also the owner of land adjoining to that on which the hotel stood, and he subsequently granted a lease of a portion of the latter ground, about sixty yards from the hotel, to S., such lease containing a covenant similar to that in the lease of the hotel. The lessor sold the reversion in fee on both leases to N., who afterwards sold the reversion on the second lease to the deft. The particulars of sale stated that the lot was sold subject to any restrictions as to building public houses, and so forth, contained in any leases granted by the lessor of the Q. Hotel, or his lessee, to any person or persons whomsoever. The deft. afterwards bought up the interest of S. in the property, and proceeded to erect a public-house on the ground, within a quarter of a mile from the Q. Hotel. Upon a bill filed for an injunction to restrain the deft. from so doing:

Held, that the deft. had had actual notice of the covenant in the lease of the Q. Hotel, and that the injunction must be granted, and must be perpetual.

This cause came on upon a motion for a decree. The bill in it was filed for the purpose of obtaining an injunction; and it stated among other things, as follows:

In the year 1855 Samuel Hemming, a builder and contractor for public works, entered into a negotiation with George Morant for taking a lease of a plot of land called "The Queen's Hotel plot," and for building thereon an inn or hotel. In the course of such negotiation George Morant, as an inducement to Samuel Hemming to give a large rent and to improve the property by building the inn or hotel thereon, agreed that no other house or building on his property within a quarter of a mile of the Queen's Hotel should be used as an hotel or inn for the sale of beer, ale, spirits, or other fermented liquors by retail, and on the faith of such agreement on the part of George Morant, Samuel Hemming on his part agreed to give a rent of 2001. for the Queen's Hotel plot, which was much greater than the value thereof in the absence of such a restriction as to hotels or inns on the property.

By an indenture of lease dated the 31st Jan. 1856, and made between George Morant of the one part and Samuel Hemming of the other part, George Morant demised to S. Hemming the Queen's Hotel plot, by the following description:-"All that piece or parcel of land situate in the parish of Farnborough, in the county of Hants, and adjoining the road leading out of the Farnborough and Farnham turnpike road to Lynchford, commencing at the junction of the said roads and extending to within thirty feet from a private road leading from out of the said Lynchford-road to plantations belonging to the said G. Morant, containing in length from west to east 1900 feet, and in width from north to south 200 feet: To hold the same unto the said Samuel Hemming, his executors, adininistrators and assigns, from the 21st Aug. then last, for the term of forty years, at the yearly rent of 2001." Such last-mentioned lease, amongst other covenants, contained the following:

"And the said Samuel Hemming, for himself, his

was notice, therefore, that if he bought lot No. 31, he would buy it subject to any restriction as to building leases contained in any lease granted by Mr. Morant or his lessee. That is a plain intimation that some of those leases did contain restrictions as to building public-houses. . It is clear, therefore, that if any one bought subject to a positive restriction (whatever it was) in any one of those leases, and having at the same time a doubt or hesitation as to the effect or character of such restriction, it was his duty to ask the auctioneer what was the meaning and the extent of that restriction. No purchaser who had thought fit to omit that plain and easy duty could afterwards complain if he found that the restriction was a very strong and binding one. Now, in the present case it is in evidence, and positively sworn to, that the restriction was explained at great length during the time of the auction. The deft. says he did not hear the explanation; but whether he did or did not is, if the evidence of Mr. Swann is to be believed, not of the slightest consequence: for he has not contradicted the conservation which is sworn to by Mr. Swann as having taken place between the deft. and himself; when the latter showed the deft. his lease, and told him, on his proposing to purchase Swann's ground, from him, and build a public-house upon it, that a public-house could not be built so near to the Queen's Hotel; the lease of that hotel containing a covenant that no public-house should be built within a quarter of a mile from it. That is distinct notice. It is true that if that were all, the notice, however distinct in itself, might be of no force in the case; for it might have come from a stranger, or it might have been inaccurate. But what is really the fact as to the notice? It was distinct; and, moreover, it was given by the tenant to the purchaser of the very plot of land which he was going to buy. It was given to him after he had seen the lease which contained a restriction against using the house as a public-house. With that knowledge, and with that present to his mind at the time, the purchaser goes to the auction; and at the auction there is this read out to him, "That lot 31 is sold subject to any restriction as to building publichouses, and so forth, contained in any leases granted by Mr. Morant." It might well be that he would not ask for further information; but this appears to me to be clear, that he had distinct explanation of what the lease was, independent of what was stated in the auction-room. The deft. fancied that if there was a proviso against letting, it would not prevent him from selling, whereupon the purchaser might set up a publichouse, if he pleased, without being affected by the covenant in any way. That, I think, is the question which the deft. is here to try; and, I think that he has never in fact been in any ignorance or obscurity with respect to it; though he was in the belief that no court of justice could have prevented him, on the terms of the covenant, from building a public-house within a quarter of mile from the Queen's Hotel. That he had distinct notice of the covenant, and that he knew the character of it, although he believed it would not go to that extent, is, in my opinion, established by the evidence. It is therefore clear that he is bound by that covenant; he has bought subject to it. It is a covenant which binds every person claiming under Mr. Morant; it binds Mr. Newman, and binds him exactly in the same manner as if Mr. Morant was now endeavouring to convert lot 31 into a public-house. Well, then I come next to the consideration of the effect of the covenant. The covenant is this: "George Morant covenants, for himself, his heirs, executors, administra tors and assigns, as follows: [His Honour read the covenant by Mr. Morant, as above stated, and continued.] The Queen's Hotel stands at this junction of the road. Now, can it be reasonably contended that Mr. Morant would not have broken that covenant if he had on the

[V.C. K.

next day sold a plot of land immediately opposite the Queen's Hotel, and the purchaser had set up a publichouse there? It is obvious that the meaning of the covenant is this-that he will not let any house to be used as an hotel or inn for the sale of beer, ale, or spirits: that is, he will do nothing so as to suffer that to take place. In my opinion, that binds every person who claims under him. I think, therefore, that the true construction of the covenant is that which I have stated; and that, in order to have it clearly esta blished now, I shall grant a perpetual injunction to restrain the deft., his heirs or assigns, during the continuance of the demise of the Queen's Hotel, from allow ing any house, building, or erection to be used, a letting any land for the erection of any house building to be used, as an hotel or inn for the sale of fermented liquor, and of course the plt. must have the costs of the suit.

V. C. KINDERSLEY'S COURT. Reported by JOSHUA METCALFE, Esq., Barrister-at-Law.

Wednesday, March 5. Re RIGG. WADHAM v. RIGG. Practice in chambers-Chief clerk's finding-Er tions to the same-Marriage-settlement. Certain funds standing in the name of a testate were claimed by his widow, who alleged that previous to their marriage an agreement for a se ment had been come to, and a memorandum to the effect signed by her husband and herself. Unde an administration summons in chambers the chi clerk found that these funds did not form part the testator's personal estate, as there was a binding agreement for a settlement. Exceptions were taken to this finding on the ground that it was not com petent for the chief clerk upon an administration summons to enter on these questions : Held, that the objections could not be maintained.

This was an adjourned summons to vary the ch clerk's certificate. The following are the circumstances of the case :

In May 1827, the deft. Mrs. Rigg, then Eliza Pr nell, intermarried with Samuel Rigg, the testatori this cause, who at that time was in practice as a soli citor in the city of Canterbury. At the time of be marriage Mrs. Rigg was entitled to 24921. 4. Three-and-a-Quarter per Cent. Annuities standing her name in the books of the Governor and Company of the Bank of England, and to a debt of 500 secured to her by the promissory note of the trusters of the Wesleyan Chapel at Canterbury.

Upon the treaty for the said marriage, it was agree between the testator and Mrs. Rigg that a settle ment of the above sums should be prepared and executed. The draft of a settlement was according prepared by the testator, whereby it was agreed that the said several sums of 1428. 5s. 7d 13 10707. 18s. 10d. Three-and-a-Quarter per Cent. Bank Annuities, and the said promissory note for the sur 500/. belonging to the said Eliza Parnell, should be transferred and assigned unto William Parnell and William Howland, in trust for the said Eliza Pare until the said intended marriage, and immediately after the solemnisation thereof, upon trust to pay dividends, interest, or annual proceeds thereof from time to time, when and as the same should becom due, unto the said Eliza Parnell for her own sole and separate use, free from the debts and control of her intended husband the said William Rigg, and after her decease to pay the interest, dividends, or an proceeds of the said Bank Annuities and the said 50 from time to time, when and as the same should be received, unto the said Samuel Rigg during his life, and after the decease of the survivor of them upon trust

to pay, transfer and make over all and singular the said Bank Annuities and the said 5007. unto all and every the child and children of the said Samuel Rigg and Eliza Parnell equally amongst them, share and share alike, and if but one such child then the whole to such one child; and after the usual clauses for education, advancement, &c., it was declared that if there should be no child or children of the said intended marriage, or being such, if all of them should die under the age of twenty-one years, then and in such case the said Wm. Parnell and Wm. Howland, or the survivor of them, his executors or administrators, should stand possessed of the said Bank Annuities and the said 500l. sterling in trust to pay the same, after the decease of the survivor of them, the said Samuel Rigg and Eliza Parnell, to such person or persons as she the said Eliza Parnell should at any time or times during her life, and notwithstanding her said intended coverture, by any writing or writings, with or without power of revocation, by her last will and testament direct or appoint."

To the above draft settlement was appended the following memorandum :—

"We, the said Samuel Rigg and Eliza Parnell, have together and separately read over and considered this draft marriage-settlement, and mutually approve thereof, this day of Feb. 1847.

"As witness our hands, "SAMUEL RIGG.
"ELIZA PARNELL."

On the 10th March 1847 Eliza Parnell received a letter from the testator in the following terms:“In travelling I recollected I omitted in the form of codicil I left with thee last night to insert therein for thee absolutely all the effects and property of every description in and about the house at Harbedown-place, but, as that is only the form of the intended codicil I shall make, if thee approve of it, instead of the settlement, which I wish on due consideration thee may, and if thou canst put as much confidence in a husband as in trustees, thou will prefer the codicil and avoid a great, and I may say unnecessary expense and trouble, as well as unpleasantness to thyself, and also avoid thy property being tied up in the hands of trustees from the time of marriage, and who they may happen to be after the death of the two that have been named who can tell? and once money is in the hands of trustees it is difficult to say what may be the expense and difficulty that may be occasioned from and by reason of the trusts of a settlement. But do as thou please; but if thou has any confidence in me of my regard for thee and thy happiness and welfare, no better trustee than thy husband, or any one to be equal to him for thy interest, can be expected, and so I shall only add, that if thou hast not confidence in me, don't trust me."

To this letter the following reply was sent by Eliza Parnell:

"I am truly thankful and happy to hear of your safe arrival, and am much obliged by your kind thoughtfulness, but must say I feel most inclined to the settlement, and I am much pained that you should for a moment suppose it is from any want of confidence in you, which I can positively say is not the case; but my mind seems directed and settled down to the thing. Knowing you would wish me to give a free and unbiassed answer, I have done so, and leave it with you."

On the 14th March 1847 the said Eliza Parnell received a letter of the date from the testator Mr. Rigg which, after referring to having called at the house of the said Wm. Parnell, and having had some pleasant conversations with him on the business of the settlement, proceeded thus:-"I left it with him for his perusal, and he has been with me and returned it approved to copy and leave the paper. I have inclosed herein Furley and Co.'s bank for them to get a power of

[V.C. K.

attorney from thee to their banking agents in London, to get the Bank Stock standing in thy name transferred into the names of Wm. Howland and Wm. Parnell as thy trustees named in the intended settlement, which (on receiving the account of the transfer of the stock) will be signed by thee and me, to which, as thou still wish it, I cheerfully acquiesce in, my only desire being to meet thy wishes and to study thy happiness; the only meaning I had was to avoid unnecessary expense and trouble to thee and taking the power from thee and giving it to the trustees in case of my death before thee. On second thoughts, perhaps I had better not send the paper I intended to inclose until I return next week, but the day I cannot say at present, as I have to return to St. Albans again this evening, and will write to thee from there."

The marriage took place without any settlement having been executed pursuant to the aforesaid agreement in that behalf, nor was any transfer made of the aforesaid sum of 24921. 4s. 5d. Bank Annuities, until after the marriage. Mrs. Rigg stating that in Oct. 1847 she was in London with Mr. Rigg, who took her to the Bank of England, and pointing to a book lying open, asked her to sign her name there, as he wished the money to stand in the name of Rigg. She then signed what was before her, which, since his decease, she discovered was a transfer of the sum of 24921. 4s. 5d. Bank Annuities from her name to his. She also stated that from the time of the marriage until the decease of Mr. Rigg, in Sept. 1858, he always regularly paid to her the dividends of the Bank Annuities, and also the interest which became due on the 500l. secured by the note of hand.

In 1855 Mr. Rigg purchased a leasehold house at Notting-hill for 250., and thereupon removed from Canterbury and resided in the house so purchased from that time until his death. In order to pay the purchase-money and the expenses connected with the purchase, Mrs. Rigg stated that her husband said to her that 300l., part of the debt due on the aforesaid note of hand, should be called in; to this she acceded, and a fresh note was then given to Mr. Rigg in his own name by the trustees of the said Wesleyan chapel for 2004. and interest. This interest Mr. Rigg continued to pay to his wife until his decease.

Mr. Rigg died in 1858, having by his will, after leaving certain legacies, given a life-interest to his wife on all the residue of his estate, and after her death, subject to certain bequests to charitable institutions, he left the residue among certain of his other relations. This will was proved in London by his widow and Dr. Gourlay, two of the executors, the other executors having renounced probate.

On the 7th March 1860 Mrs. Rigg joined with Dr. Gourlay in the sale of 14921. 4s. 5d., part of the aforesaid sum of 24921. 4s. 5d. Bank Annuities, the produce of which was paid to Dr. Gourlay and paid by him into the western branch of the Bank of England, and on the same day the sum of 1000. Bank Annuities, being the residue of the said sum of 24921. 4s. 5d. Bank Annuities, was transferred into her name. On the 20th March 1860 Dr. Gourlay drew out of the Bank of England 12007., part of the said sum of 14921. 4s. 5d., and paid it into the bank of the National Assurance Company to his own account.

Dr. Gourlay having misappropriated the above sum of 14921. 4s. 5d. was proceeded against under the Fraudulent Trustees Act and imprisoned.

By an order made in this matter and cause, dated the 26th Nov. 1860, it was ordered that the National Assurance Association should, on or before the 10th Dec. 1860, pay the aforesaid sum of 1200l. cash into the bank to the credit of this matter and cause; and it was further ordered that Mrs. Rigg should, on or before the 15th Jan. 1861, transfer the aforesaid sum of 1000l. Bank Annuities into the name of the accountant