AND

JOURNAL.

VOL. XXIV.

EXPOSURE OF GOODS FOR SALE.

WHAT constitutes an exposure of goods for sale, under various concommitants, is a question that frequently arises on the construction of different statutes, so that any additional judicial light shed on the subject should be acceptable. The conflict of decisions on the Dublin Police Act (5 Vic. sess. 2, c. 24, s. 5, sub-s. 7), some years ago the latest case being Grant v. Kavanagh 10 Ir. L. T. Rep. 34-however, need hardly be renovated by further commentary (see 10 Ir. L. T. & S. J. 464), nor yet shall it be sought to render perplexity worse perplexed by enlarging on any transatlantic adjudications, such as Adams Express Co. v. Schlessinger, 75 Pa. 256, 12 Vt. 212. But Crane, appellant, v. Lawrence, respondent, reported in the September issue of the Law Journal, should certainly be brought under notice, as a case of much practical interest.

By the Margarine Act, 1887 (50 & 51 Vict. c. 29), sec. 4, it is provided "that every person dealing in margarine, whether wholesale or retail, . . . who is found guilty of an offence under this Act, shall be liable on summary conviction for the first offence to a fine not exceeding £20," &c. And section 6 provides : "Every person, dealing in margarine. shall

conform to the following regulations: Every package, whether open or enclosed, containing margarine, shall be branded or durably marked 'margarine' on the top, bottom, and sides, in printed capital letters not less than three-quarters of an inch square; and if such margarine be exposed for sale by retail there shall be attached to each parcel thereof so exposed, and in such manner as to be clearly visible to the purchaser, a label marked in printed capital letters, not less than one and a half inches square, 'margarine'; and every person selling margarine by retail save in a package duly branded or durably marked as aforesaid, shall in every case deliver the same to the purchaser in or with a paper wrapper, on which shall be printed in capital letters not less than a quater of an inch square, 'margarine.'" Cave and Sinith, JJ., were now called on to determine the meaning of "exposed for sale," within those enactments, under rather peculiar circumstances. It appears that the respondent was summoned for unlawfully exposing for sale by retail a parcel of margarine, there not being attached to such parcel so exposed a label marked "margarine," contrary to the Act. The appellant was an inspector appointed by the vestry of St. Mary, Battersea, for the purpose of enforcing the Food and Drugs Act, 1875, and the Margarine Act, 1887; and the respondent was a retail dealer in butter, margarine, and other things at his shop in the parish of Battersea. Now, on the 25th of January, 1890, the appellant entered the respondent's shop, and

No. 1,232

asked the respondent's wife, who was then in charge, to serve him with half a pound of margarine. The portion required was then cut from a parcel of margarine which was then in the shop and placed in a paper wrapper upon which was printed the word "margarine" as required by the Act; this parcel was the parcel with reference to which the alleged offence was committed. At the time of the purchase it was placed on the counter behind a screen similar to that used in buttershops, for the purpose of the butter, &c., being prepared for sale. Before making the purchase the appellant did not, and could not, see the parcel of the margarine from the side of the counter on which he stood, nor was it open to the view of any of the customers, unless they went behind the counter, where they were not, in fact, allowed to go. The parcel was not in any case or package, and no label or mark of any kind was upon it to indicate that it was margarine; and even if such label had been upon it, it could not have been seen by the customers so long as they remained upon their side of the counter. There was no evidence that the parcel was placed behind the screen to evade the Act, or except in the ordinary way of business.

Under those circumstances, the magistrate was confronted with the contention, on behalf of the appellant, that the respondent had exposed the margarine for sale by retail by his having placed it in his shop for that purpose, while, on behalf of the respondent, it was urged that, inasmuch as the margarine was not, and could not be seen by customers or other persons using the shop, unless indeed they went behind the counter, it was not exposed for sale. But, notwithstanding that a conviction was pressed for on the ground that the words meant put out ready for sale, and not necessarily exposed to sight for sale, the worthy magistrate declined to inflict penal consequences, being of opinion that, to constitute exposure for sale, the margarine must be in such a position as to be seen by customers standing in their usual place in the shop, whereas the parcel of margarine in question could not be thus seen, and a label upon it under such circumstances would have been useless.

Now, no doubt, the word "exposed" is capable of various meanings; a particular thing may be exposed to the air, or to the water, or it may be exposed to view. But, to be exposed to a penalty, the person affected must be clearly brought within terms strictly showing that under the circumstances it has been incurred; and not only must be brought within the words but within the spirit of the enactment-e.g., a person cannot be convicted of using false weights where his scales were incorrect only against himself (Brooke v. Shadgate, L. R. 8 Q. B. 352). "One must look at the surrounding circumstances," said Cave, J., " to see what the words mean in each case. The words here seem to

eyes

me to signify exposed to the view of those who, seeing it, may be induced to buy. Exposure, I think, means exposure to the view of the purchaser. The Act was passed to prevent a man buying margarine with his shut-seeing the article, but not knowing what it was that he was buying. A label was, therefore, to be exposed on it showing that it was margarine. Take the case of a dealer who not having room in his shop for a tub of margarine places it in his cellar, and goes there to get any which is required; surely, it would be absurd to say that under such circumstances because the dealer takes the head off the cask for the purpose of retailing the margarine, therefore the word 'margarine' must be fixed on it. The label attached to the parcel is to be visible to the purchaser: but if the parcel is not itself visible, how can it be marked with a label 'visible to the purchaser'"? "If we give the natural construction to the words 'expose for sale,'" added Smith, J., "they signify an exhibition to a would-be purchaser. Mere putting in a back room or cellar would not be an exposure for sale. The question as to labelling does not arise unless there has been an exposure for sale. The words are, margarine exposed for sale' is to be labelled that is, put into the shop for sale. Moreover, the label is to be visible to the purchaser.' How could that be unless the article was exposed for sale?" Accordingly, the appeal was dismissed, and the respondent escaped the penalty. We have the decision, but where is the Act? If back-rooms, cellars and screens, obviating the operation of the statute, are so essential to the dealer that he cannot deal in margarine without them, why should he deal in it?

TRIAL BY JURY.

Mr. Arthur R. Jelf writes in the Times :

Sir, My letter on "Trial by Jury," published in your issue of the 29th ult., though privately approved of by high authority, elicited no public response in your columns, either by way of assent or dissent. This was, no doubt, chiefly due to the unattractive form in which the subject was presented by me, and partly to the pressure of other matters of interest.

Meanwhile a fresh instance of the weakness of the jury system has occurred in the recent case of Pickett v. Lyon, tried before Baron Huddleston.

In that case the learned judge spent much time and pains in trying, for the sake of greater caution and in order to preveut the possibility of a new trial, to fortify his own strong and doubtless correct view of the facts by obtaining a confirmatory opinion from the jury-an attempt which was frustrated by the obstinacy of one juryman out of twelve. Thereupon the learned judge gave effect to his own view that there was evidence upon which the jury could properly find for the plaintiff by entering judgment for the defendant,

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The same course was taken by the late Mr. Justice Manisty in a celebrated case in which he was subsequently upheld on appeal, and also in another case, in which I was myself engaged, in which, before taking that course, he commented on the rower of individual jurymen to prevent justice being done, and expressed an emphatic opinion that nowadays trial by jury was itself on its trial before the country. Surely these are attempts to work a machine which, in relation to the problems of modern days, is unworkable.

Allow me once more to enumerate the main ad

vantages of trial by judge over trial by jury: (1) The impossibility of an abortive result through sheer indecision; (2) the power of a judge with a free hand to suggest the compromise of a doubtful case, and thus, perchance, to stop a ruinous litigation; (3) the readiness with which a judge, if a case is to be fought, can let counsel know what presses on his mind, so that they can deal with it ; (4) the openness of the judge's reasons to review in the Court of Appeal as opposed to the inscrutability of the jury; (5) the avoidance of the danger of partisanship amongst the jury; (6) the prevention of an artificial finality in the verdict of a jury, such verdict being often really reflected from the opiniou of a strong judge, but invested with a fictitious independence in the Court of Appeal; (7) the removal of the undue strain put upon a judge to disentangle the issues and obtain findings of fact from the jury even on the most obvious points, often leading to absurd and inconsistent verdicts; (8) the saving of jurymen's time.

I might have added a ninth advantage-namely, the far greater rapidity with which cases can be tried before a judge without a jury.

A glance at the daily cause lists will show the proportion in which, cæteris paribus, the two classes of cases can be tried.

In criminal cases I desire to see trial by jury main. tained in favorem vitæ et libertatis.

In some kinds of civil cases I think a jury should be allowed at the discretion of the Court, but not as a matter of right.

In my experience the desire for a jury when analysed is almost invariably based on a secret hope that prejudice may in some form or other prevail.

STAMPS ON MORTGAGE TRANSFERS. The following circular has been sent round by the Inland Revenue Department to solicitors :

"15th August, 1890.

"Sir, The attention of the Board of Inland Re, venue has been drawn to the numerous applications made to them to rectify the stamp duty on instruments of transfer of mortgage with interest accrued or accruing, such transfers having been insufficiently stamped by reason of that interest not having been taken into account when calculating the duty.

"Many inquiries as to the duty chargeable on such class of instruments have also been received. It would thus appear that whilst with some solicitors there is an uncertainty on the point, with others there is a prevailing opinion that duty is payable only in respect of the principal amount transferred. This latter view is not correct, and the Board have therefore deemed it desirable, in order to clear away any doubt for the future, to issue a notice on the subject.

"Prior to the passing of the Stamp Act of 1870, duty was payable in respect of the principal money only, but by that Act, which came into force on the 1st January, 1871, the charge is upon the amount transferred, and, therefore, if any interest has accrued due at the time of transfer, or, if any money representing accruing interest be paid, stamp duty is chargeable in respect of such interest as forming part of the amount transferred. 'I am, &c.,

FUSION.

"W. H. COUSINS."

Another step has been taken in England towards the fusion of barristers and solicitors. When a solicitor desired to become a barrister it was necessary that he should keep four terms, which involved that a solicitor must cease practice for one year in order to become a barrister. A barrister had only to pass the final examination for solicitors in order to be admitted at The question was taken up by the Incorporated Law Society, which placed itself in communication with the Four Inns of Court. The benchers eventually agreed on a new regulation, that a solicitor who has

once.

been admitted for five years and qualified for admission may be called to the bar on passing the final examination, without keeping any terms.

THE DIRECTORS' LIABILITY ACT, 1890.

It may fairly be said that the Directors' Liability Act was strengthened after it left the House of Lords. With respect to the much-discussed question of the expert, a sort of compromise has been arrived at. The director or promoter is not, as he was by the words struck out of the bill by the Lords, made in the first instance responsible for the competence of the expert; but he is to be liable to pay compensation "if it be proved that he had no reasonable ground to believe that the person making the statement, report or valuation was competent to make it." Then, in section 3, sub-section c, it is required as a fact that the expert's opinion shall be correctly represented, and it is not sufficient, as it was under the bill as it left the Upper House, that the promoters shall believe it to have been accurately stated. On the other hand, by the addition of words to this sub-section, liability may be avoided if "after the issue of such prospectus or notice, and before allotment thereunder, he, on becoming aware of any untrue statement therein, withdraw his consent thereto and cause reasonable public notice of such withdrawal, and of the reason therefor, to be given."

On the whole, Mr. Warmington may be congratu lated on the result of his legislative effort. The fate of the bill hung long in the balance, and at one time it seemed that it would either have to be sacrificed altogether or be so emasculated as to be of little use in circumventing the reckless or unscrupulous promotion of bubble companies. For some time, at least, the very existence of a measure of this character will probably act as a deterreut, and tend to raise the standard of commercial probity. Still, it is wise not to be sanguine, and investors must not allow themselves to be lulled into security or relax in their inquiries as to the soundness of undertakings to which they are invited to subscribe. Fraud is infinite, and the ingenuity of men who have neither money nor character to lose is not easily baffled. It is, too, matter of daily experience that experts of all kinds are prone to express the opinions which their clients expect of them, and, save by the establishment of a tribunal of experts, which would be a work of extreme difficulty and tend to eudless complications, what check can be applied to the many different classes of experts who are consulted on the formation of companies ?-Law Journal.

MISCHIEVOUS ANIMALS.

The recent case of Filburn v. The People's Palace and Aquarium Company, Limited, brings up anew the old subject of responsibility for personal injuries caused by animals. In that case the defendants were the owners of an aquarium at Scarborough, and the plaintiff was present at a public entertainment given in the defendants' garden attached to the aquarium. Part of the entertainment consisted of the performances of an elephant, which, during the course of the entertainment, ran at the plaintiff and injured him. The action was tried before Day, J., and a special jury at Leeds, and the learned judge left it to the jury to say (1) whether the elephant was an animal dangerous to man, and known to the defendants to be so; and (2) whether the plaintiff brought the accident upon himself. The jury answered both questions in the negative, and, upou further consideration, the learned judge directed judgment to be entered for the plaintiff, the jury having assessed the damages to await the determination of the point of law. The defendants appealed, and the Court of Appeal decided against them upon the ground that an elephant is one of those animals which the owner is by law bound to prevent from doing mischief in any case without reference to any knowledge on his part of mischievous acts previously done by the particular animal,

The Master of the Rolls laid down the law in the following general proposition: "By the law of England there are two classes of animals. There is one class as to which, if a person kept such an animal, he must keep it at his peril and prevent it from doing any injury, and whether he knows that it is dangerous or not is immaterial. There is another class of animals which are not of a dangerous nature, though individuals of that class might become dangerous, and if a person keeps an auimal of that class he will not be liable for injury done by it unless he knew it to be dangerous. Now, there were some animals which are well known to everybody as not being dangerous anywhere, and the law recognises they are not dangerous, such as rabbits, pheasants, and partridges. There is another division of animals which the law recognises as not being of a dangerous nature in England, such as cows, horses, oxen, dogs, and many others. They were originally in this country as elsewhere of a dangerous nature, but a great number of years ago the whole race of animals of that kind in this country was so tamed that it is well known to everybody that their progeny in this country are not dangerous. Those animals are recognised by the law, by reason of that universal knowledge, as not being of a dangerous nature, and the law assumes that without proof." The Master of the Rolls, then, applying this to the case of an elephant, held it to be an animal of the former class, and therefore decided for the plaintiff. Bowen, L.J., is reported (4 Times L. R. 402) as saying: "The broad principle applicable to this case was that laid down in Rylands v. Fletcher, L. R. 3 H. L. 330, that if a man brought upon his premises something that was liable to do mischief, he took the risk upon himself, but if the animal was of a class not likely to do mischief, then the person was not liable for any mischief done, uuless he knew the auimal to be dangerous." The application of Rylands v. Fletcher is a curious instance of the way in which analogies are cross-applied, for in Rylands v. Fletcher the decision was that a person who brings an excessive quantity of water together in a reservoir upon his own land is bound not to let it escape to his neighbour's damage, and if it does escape he is liable, because it is like a beast of ferocious character that a man keeps at his peril. Whereas here the reverse analogy is applied, and it is said that a man who keeps a beast of a dangerous nature keeps it at his peril, because it is like a dangerous quantity of water or an unsanitary heap of filth that a man keeps on his premises at his peril. Both cases are, as Bowen, L.J., points out, but instances to which the same principle is applied, and is applicable whether the things be beasts, or water, or filth, or stenches.

The only instance, it is believed, in which the elephant is previously mentioned in the books of the law is in Coke's 4th Institute, in the famous comparison of the ideal member of parliament to an elephant, and certainly Lord Coke had a more favourable opinion of the nature of an elephant than the Court of Appeal. "Every member of the House," says Lord Coke, "being a counsellor, should have three properties of an elephant. First, to be without gall, that is without malice, rancour, heat, and envy. Secondly, that he is inflexible and caunot bow. Thirdly, that he is of a most ripe and perfect memory. Whereunto we will add two other properties of the elephant, the one that, though they be maximæ virtutis et maximi intellectus of greatest strength and understanding, tamen gregatim semper incedunt, yet they are sociable and go in companies; for animalia gregalia non sunt nociva, sed animalia solivaga sunt nociva. Sociable creatures that go in flocks and herds are not hurtful, as deer, sheep, &c. ; but beasts that walk solely or singularly, as bears, foxes, &c., are dangerous and hurtful. The other that the elephant is philanthropos, homini erranti viam ostendit." Amiable as Lord Coke's delineation of the elephant may be, it is to be feared that the Court of Appeal are nearer to the truth. In the 19th century we are obliged to concede that the gall is not the seat of the passions of malice, raucour, heat, and envy; we know for a fact that gregarious animals are frequently of a destructive nature, as, for instance,

wolves, wild dogs, &c., as well as animals of a sole and singular walk like the bear. And as to the philanthropic efforts of the elephant to point out the way to wandering mankind, one can only say that the elephant bas not been seen to do so lately.

The nature of the bear has always been indisputably daugerons. It is to be found so laid down in Besozzi v. Harris, 1 Fost, & Fin. 92. In that case the defeudant was the owner of a bear which he kept fastened by a chain six feet long on a part of his premises accessible to persons frequenting his house on the Steep Holms in the Bristol Channel. The plaintiff was one of an excursion party visiting the defendant's house, and, in walking past the place where the bear was chained, she came within the length of his chain, and was seized by him and seriously injured, There was no notice or caution to warn persons visiting the premises. Crowder, J., directed the jury that it must be taken as proved that the defendant knew the bear to be of a fierce nature," as everyone must know that such animals as lions and bears are of a savage nature. And though such nature may sleep for a time, this case shows it may wake up at any time. A person who keeps such an animal is bound to keep it that it shall do no damage."

The nature of the monkey is also well settled to be dangerous. Lord Hale says, in his Pleas of the Crown, part I., c. 33: "1. If the owner have notice of the quality of his beast and it doth any ody hurt he is chargeable with an action for it. 2. Though he have no particular notice that he did any such thing before, yet if it be a beast that is fere naturæ, as a lion, a bear, a wolf, yea an ape or m nkey, if he get loose and do harm to any person the owner is liable to an action for the damage, and so I knew it adjudged in Andrew Baker's case, whose child was hit by a monkey that broke his chain and got loose." And so in May v. Burdett, 9 Q. B. 101, where the plaintiff was bitten by a monkey, the Court of Queen's Bench held the owner liable without any allegation or proof of negligence or want of care in keeping the monkey, saying they were of opinion that the defendant, if he would keep it, was bound to keep it secure at all events.

In Filburn v. The People's Palace and Aquarium Company, Limited, Lord Esher, M.R., was careful to point out that whether the animal is feræ naturæ as not being the subject of property is not the point. Rabbits, pheasants, and partridges are feræ naturæ in the sense of not belonging to anyone till they are reduced into possession by man, but they are not feræ naturæ in the sense of being dangerous. "So a man," says Chief Baron Comyn's Dig., tit. "Biens (F)," 66 may have a property in monkeys, parrots, &c., for they are merchandise and valuable." Yet, as we have already stated, a monkey is feræ naturæ in the sense of being dangerous.

And it must not be supposed from the passage cited from the judgment of Bowen, L.J., that if the animal, being of a dangerous nature, escaped, and did mischief the owner would not be liable, because at that time it would not be in his keeping or under his control. The point was raised in May v. Burdett, 9 Q. B. 101, and the Court of Queen's Bench refused to allow any weight to the objection, holding that if the owner is bound to keep the animal, at all events, from doing mischief he is also bound to prevent its escape, because from its very nature mischief is sure to follow. The Roman law was, no doubt, different in this respect, for it is laid down in Justinian's Institutes, B. 4, tit. IX., that if a bear escape from his master and then do mischief, the former master shall not be called to account, for be ceased to be its master when it escaped and became a wild beast again. But our law is more teuder of the public safety, and makes it incumbeut npou the owner to prevent the escape as well as the mischief, for he is liable for mischief notwithstanding the escape.

An interesting point might be raised, but so far as we know has never occurred, as to the rights of a person meeting an escaped animal of a dangerous nature. Would he be justified in destroying it there and theu, or would he be liable to pay damages to the owner to whom

it was valuable, unless the act was in absolute selfdefence. In Morris v. Nugent, 7 C. & P. 572, it was decided that to justify shooting a dog it was not sufficient to show that the dog was of a ferocious disposition and at large. To justify shooting him he must be actually attacking the party at the time; therefore where in that case the dog ran out and bit the defendant, and ran away, it was held the defendant was not justified in shooting him as he ran away. It need scarcely be said, however, that a dog is not one of those animals that the owner keeps at his peril, until after knowledge of Savageness of disposition. But how would it have been had the animal been a monkey, or a wolf escaped from its owner? After escape, does the owner retain a / sufficient property to eutitle him to maintain an action for loss if the animal is shot without having done any mischief? This seems to be the true test rather than the dangerousness of the animal's nature. The action would be to recover damages for injury to property, aud then the case would turn upon whether the animal was fera nature in the sense of being a subject of property, and the escape would be material because without possession there could be no property in an animal feræ naturæ in this sense, It might be very hard upon the owner of a travelling circus, for instance, if a valuable lion escaped and was shot while trying merely to get out of the way of the party shooting it. But it appears to us that, however morally wrong it might be, in law a man may shoot au escaped lion in England with impunity, and, moreover, become thereby the owner of the skin. The trophy might be very discreditable notwithstanding the rarity of the feat.

There are one or two points which may be noticed as to the liability for injuries done by animals of the other class, before finally taking leave of the subject. The standing type of the other class is the dog. Now it should always be remembered that in an action against a party for keeping a dog to his knowledge accustomed to bite mankind, it is not necessary to prove that the dog is his property; if he harbours the dog or allows it to resort to his premises, that is insufficient (M Kone v. Wood, 5 C. & P. 1). This is a point often overlooked. The defendant sometimes strenuously denies ownership of the dog. This is quite immaterial if the dog makes its home on his premises and he does not attempt to drive it away. Again, the knowledge of the servant in charge of the dog that it is of a savage disposition is sufficient to fix the master with responsi bility though he personally knows nothing of it. (Baldwin v. Casella, L. R. 7 Ex. 325). There is one case that seems to go even further aud to make the know. ledge of the servant sufficient as against the master although the servant is not in charge of the dog or of the premises on which it is kept. (Applebee v. Percy, L. R. 9 C. P. 647). In favour of the master it may he noticed that a mere trespasser cannot maintain an action for being bitten by the dog of the owner of the land. (Sarch v. Blackburn, 4 C. & P. 297.) And no action lies by a stranger for an injury arising from the letting loose a dog on one's own premises for their protection at night. (Brock v. Copeland, 1 Esp. N. P. C. 203).-Justice of the Peace.

COVENANTS RUNNING WITH LAND.-TIED

HOUSES.

A case which was characterised by Lindley, L.J., as one of very great importance both to brewers and also to tenauts who take "tied" houses will be found reported sub nom. Clegg v. Hands (62 L. T. Rep. N. S. 502). The plaintiffs, Messrs Clegg and Wright, brewers at the Alton Brewery, Liverpool, had in Nov., 1886, demised by an agreement (in which they were styled as the "lessors, including in such term each of them and their each and every of their heirs, executors, administrators, and assigns") to Benjamin Hands (called the lessee, including in such term his executors, adminis. trators, and permitted assigns) a public-house known as the Alexandra Hotel, for nine and a half years. In order to secure their business, the lessors required the

lessee to enter into a covenant not to buy, sell, or receive, or permit to be bought, &c., upon the premises any ales or stout (other than best stout) other than such as shall have been bona fide purchased from the lessors, or from them or either of them, either alone or jointly with any other person or persons who may hereafter become a partuer or partners with them or either of them, provided they shall deal in or vend such liquors and shall be willing to supply them of good quality and at the fair current market price. Clegg and Wright disposed of their business and goodwill to Cain, who also sold ales not of his own brewing, and conveyed to him the Alexandra Hotel, with which they expressly assigned the restrictive covenant. The Alton Brewery was closed, and the defendant declined to take beer from Cain. An injunction was granted to restrain the defendant from buying beer contrary to the covenant in his lease, and the defendant appealed.

The arguments on appeal seem to have resolved themselves into the following: First, it was said that as the words "lessors or their partners," &c., alone were used in the covenaut, the intention was to cut down the contract, so to speak, and, though the lease was made between the lessors or their assigns and the lessee, yet the covenant must be with the lessors alone, or, at any rate, only with them and their partners. In other words, the covenant was to be dealt with apart from the definition clause. The answer to this is to be found in the judgment of Lord Justice Lindley, who said: "It appears to me that the words to which I have alluded following lessors' were introduced merely to cover the case of any partuership between the lessors and third parties, or their assigus and third partiesnot only the assigus of the brewery, with which the Covenantees were then coucerned, but any assigns, provided only that they or he should at such time deal in or vend such liquors as aforesaid, and should be willing to supply the same to the said lessee of good quality and at a fair current price." It was then argued that if the covenant was not a personal one with Clegg and Wright and their partners, it must be a covenant for the benefit of anyone, whether a brewer or not, and was thus purely collateral, aud the benefit of it could not be assigned. It seemed clear, however, to the judges of the Court of Appeal that this covenant was assignable, inasmuch as it was not a personal contract, like a contract with a particular painter to paint a picture, for in that case the work must be done personally, and could not be handed over, while here the covenant was to buy beer from the vendors, whether they brewed it themselves or sold that of other persons, provided it was of good quality and at the fair current market price-clearly showing that it was not intended to restrict this covenant for the benefit of the persons who carried on this brewery at this particular place. Then it was argued that this was a covenant which did not run with the land, aud that au assignee could not therefore sue on it.

Did this covenant touch and concern the thing demised so as to run with it at law? "It is,' said Lord Justice Cotton, "a contract relating to the way in which the business of the house is to be carried on; therefore it is a contract relating to the publichouse, just as much, in my opinion, as a contract as to the mode in which the cultivation of a particular piece of land is to be carried on relates to the laud. It affects the value of the reversion; it affects the house; and in my opinion it is a contract running with the land." The covenant being, then, one that ran with the land, the assiguee could sue on it, and, that being the case, the injunction granted by the Court below must stand. There was, however, another ground upon which the judgment of the Court below could be supported, and that was that, inasmuch as the goodwill had been sold to Cain, he was entitled to sue independently of the question of its running with the land, so far as by assignment the landlords could give him the right to do so.

The defendant obtained the publichouse at a less reut than he otherwise would have done, and therefore he was not entitled to deal with it as against the person

entitled to the benefit of the covenant in a way inconsistent with the covenant by reason of which he got it at a lower rent. This was the rule laid down in Tulk v. Moxhay (2 Ph. 774), and, according to the Court of Appeal, ought to be applied in this case. For these reasons the decision of the Court below was upheld and the appeal dismissed.-Law Times.

ATTORNMENT CLAUSES.

A fresh section has recently been contributed to the already voluminous literature dealing with the Bills of Sale Acts. Most of the points which have arisen on that monument of legislative inepitude have been latent difficulties, but Section 6 of the Bills of Sale Act, 1878, with its provision as to attornment clauses constituted a patent difficulty which even now can hardly be said to have met with complete explanation. Now Section 6 provides that "every attornment, instrument, or agreement, not being a mining lease, whereby a power of distress is given or agreed to be given, by any person to any other person by way of security for any debt or advance, and whereby any rent is reserved or made payable as a mode of providing for the payment of interest on such debt or advance, or otherwise for the purpose of such security only, shall be deemed to be a bill of sale, within the meaning of this Act, of any personal chattels which may be seized under such power of distress; provided that nothing in this section shall extend to any mortgage of any estate or interest in any land tenement or hereditament which the mortgagee, being in possession, shall have demised to the mortgagor as his tenant at a fair and reasonable rent.", Perhaps thefirst reported judicial utterance-it is only a dictum-on this section is to be found in ex parte Jackson in re Bowes (1880) 14 Ch. D. 733, where Baggallay, L.J. pointed out that at the date of the mortgage (27th February, 1877) containing the attornment clause then in question a "mortgagee was enabled to treat the chattels of the mortgagor as forming a part of his security, and in a sense as the law then stood to evade the provisions of the Bills of Sale Act of 1854." This was so because in re Stockton Iron Furnace Company, 10 Ch. Div. 335, it had been held that such a clause was not a license or authority to take possession of the chattels within the intent and meaning of the Bills of Sale Act, 1854, which was then in force, but his lordship plainly intimated an opinion that section 6 of the Act of 1878 had, as to bills of sale falling within it, altered the law.

In Daubuz v. Lavington (1884), 13 Q. B. D. 347, the mortgage deed was dated 19th December, 1881, and the attornment clause ran as follows:-"The said mortgagee being in possession according to the true intent and meaning of the Bills of Sale Act, 1878, do hereby demise uuto the said mortgagor and the said mortgagor doth hereby attorn tenant thereof to the said mortgagees at the rent of £360 per annum being a fair and reasonable rent within the meaning of the said Act to be paid in advance half-yearly and provided that the mortgagees might determine the tenancy without giving to the mortgagor any previous notice to quit, and nothing, it was provided, should constitute the mortgagees in possession for any other purpose than making the above determinable demise. Payments were in arrear and notice to quit "forthwith" was given. It will be seen that the attornment clause was framed with a view to the protection afforded by the proviso at the end of Section 6 of the Act of 1878. Whether, having regard to the interpretation placed on this clause in Re Willis, 21 Q. B. D. 384, the proviso would validate an attorument so framed contained in a deed falling under the Bills of Sale Act, 1882; validate it, that is, as to chattels seized under a distress levied pursuant to it, may be doubted. To constitute a mortgagee in possession simply for the purpose of entitling him to certain protection, and not so as to entail on him any of the heavy responsibilities, the rights and duties, incumbent on the normal mortgagee in possession, looks like a patent evasion of the Act. Does the proviso