Law Intelligence.

New Zealand Mail, Issue 317, 9 March 1878, Page 19

Law Intelligence.

SUPREME COURT.—IN BANCO. Friday, March 1. His Honor the Chief Justice delivered judgment in the following case : UNION B.S. COMPANY v. DALTON. This was an appeal against the decision of the Resident Magistrate for the Marlborough District, in an action heard at Picton on September last. The following is an outline of the facts of the case as proved at the hearing. On the sth cf February, 1877, the respondent, Captain Dalton, took passengers’ tickets by the appellants’ steamer Taupo for the earriage of himself and his wife from Picton to Wellington. The tickets were in the usual form, having a number of conditions eudorsed thereon: and amongst the rest one which stated that the company would not be “ responsible for any loss @r damage to, or detention of luggage under any circumstances.” The respondent when he went on board at Picton, took with him a portmanteau, properly labelled and addressed, and a few small parcels, his entire luggage being within the forty cubic feet, which, in accordance with the conditions, he was entitled to carry for himself and his wife. The portmanteau was taken on board by respondent’s porter, who proceeded to take it down the saloon stairs, in order to place it in the respondent’s cabin. He was stopped, however, by one of the company’s stewards, who told him he must place it on the open landing at the top of the saloon stairs. To this the porter objected, but the respondent bade him 44 do as he was told,” and the portmanteau was accordingly placed upon the landing. There was no evidence of the portmanteau having been seeu ou board the Taupo after her arrival at the Wellington wharf, but the respondent swore that he saw it on the port ■ide of the landing before the arrival of the ▼easel, and that he thought he saw it in the name place when he landed. The Taupo reached Wellington at between 1 and 2 o’clock on the morning of February 6th, with a heavy rain falling and strong wind blowing. The respondent landed immediately, without taking his portmanteau, and without leaving any instructions about it ; and about nine o’clock the same morning, when lie came on board for his luggage, it had disappeared. There was no evidence of negligence on the part of appellants other than such as is disclosed by the above facts, and the magi-trate gave no intimation as to whether he considered there was, or was not, proof of negligence. Judgment was given for the respondent for JEB7 Bs. and costs, the amount claimed. Against this decision the company appealed, and the case was argued before his Honor Mr. Justice Richmond in banco during the last circuit sittings at Blenheim, Mr. Pitt, of Nelson, appearing for the appellants, and Mr. GftooUy for th* respondent.

Judgment upon the appeal was delivered as follows : In th : s case it is first necessary to determine whether the appellants are common carriers within the meaning of the Carriers Act 1866. and whether the luggaire of the respondent comes within the terms “ articles, goods, and things,” in the second section of that Act. Doubt has often been expressed whether carriers of passengers are, in relation to the luggage of passengers, liable as common carriers. Chief Baron Pollock, in Stewart v. London and North Western Railway Company (33 Law Journal, Ex. 199), denies the proposition. It is also questioned by Mr. Justice Willes, delivering a considered judgment of the Court of Gommon Pleas in Talley v. Great Western Railway Company, Law Reports. .6 C P., 44, at pa?e 51 But the balance of authority is in favor of the liability. The c>ses of Richards v. London and Brighton Railway Company, 18 Law Journal C. l '., 251, and Butcher v. London and South-Western Railway Company, 24 Law Journal, C P., 137. affirm it. In Munster v. SouthEastern Railway Company, 27 Law Journal. C. P., 308, Chief Justice Cnckburn speaks of the defendant company as common carriers, and the point appears also to be assumed in those cases in which railway companies have been held entitled in respect of pass ngeis’ luggage, or of articles accompanying the person of any passeneer. to the protection of the English Carriers Act, (I Win . 4 c 68) ns for example in Le Couteur v. London and South Western Railway Company. L.R. 1 Q.B. 54; and Morritt v. North-Pastern Railway Company, Law Reports, 1 Q.B. D. 302. As regards the above cited case of Stewar' v London and North-Western Railway Com any, it must be considered as ov r ruled by the recent case of Cohen v. South-Pastern Railway company. Law Reports, 1 Ex. Div. 217, affirmed by the Court of Appeal, 2 Ex. Div. 253. In that case, in :he Exchequer Div sion. Barons Bramwel! and Amphlett held that the defendant company was liable as a common carrier in respect of passengers luggage ; and Lord Jits'ice Mellisli in the Court of Ap eal, without absolutely deciding the point, which was unnecessary states his own opinion to the same effect. All these, it is true, were of land-c irriave, excejJt the last named case, in which a part of the transit was by sea. But nothing turns upo t this point. The law relating to the luggage of passengers by coasting steam packets is ce tainly not different from that relating to the luggage of .assengers by land. Angell on Carriers, s.s. 107, 108 The last case which I shall mention is that of Henderson v. Stevenson in the House of Lords (Law Reports 2, Scotch Appea'. 478). In that case Lord Hatherley took it for granted that a steam packet company, carrying passengers b-tween Dublin and Whitehaven, were, in the absence of special restrictive conditions, liable as common carriers for the safe conveyance of the luggage of passengers. It is, however, proper to state that the decision did not turn upon the point, and in the opinions of the Lood Chancellor and Lord Chelmsford, no more is assumed than the liability of the company to use reasonable care and diligence. Upon the whole it is, T think, the result of the authorities that the appellants are to be considered for the present purpose as common carriers, and they therefore come within the provisions of the 2nd section of the Carriers Act. 1866. I also think that passengers’ luggage is within the terms of the same section. So much of the enactment as relates to this question, is in the very words of the 7th section of the English Railway Traffic Act, 1554, which, in the above cited case of Cohen v. South ICastevn Railway Company, was held to extend to the luggage of passengers. The case being thus within the Carriers Act, 1866. it follows, that the stipulation of the passenger-ticket that “ the company will not hold itself responsible for any loss or damage to or detention of luggage under any circumstances ” is ineffectual to shield the appellants from responsibility for losses occurring through their own faulty arrangements or the negligence of their servants. But I see no reason to think that the stipulation on the ticket does not protect them from losses occurring otherwise than through the neglect or default of themselves or their servants. The colonial Act contains no words which render the Act null and void for all purposes It follows that the real questions in the case are : First, whether the company was in fact guilty of negligence ; secondly, whether there was negligence on the part of the plaintiff which contributed to the loss. If the first question be answered in the affirmative, and the second in the negative, the respondent is entitled to retain his judgment; but if either question ought to receive an opposite answer, then judgment should be for the appellant. Unfortunately the answers to these questions me inferences of fact, which the magistrate does not appear to have drawn, and which this Court has no power to draw. On referring back the case by consent of the parties, in order that the magistrate might state the ground of his decision, he lias reported as follows :' ‘ I grounded my decision on the fact that the steward had taken the luggage out of the possessson of Captain Dalton, and had never redelivered it ” This, in my opinion, is not in law a sufficient ground for the judgment, because it implies that, without proof of negligence, the company would be liable. At the same time the respondent may, should the two above-stated questions be answered in his favor, be entitled, as I have said, to retain his judgment. The fac f s in evidence would warrant t e magis rate, who has here the functions of a jury, in drawing a conclusion either way on either question. Not, of course, that a conclusion either way wo Id be equally sound ; but the question being one of fact, this Court could not interfere with the decision whether for plaintiff or defendant, as contrary to law. The facts in evidence furnish matter on which it is necessary that the magistrate, as judge of facts, should form an opinion, and that opinion will be conclusive. This Court being unable to give a final judgment either for the appellant or respondent, must, in my opinion, for the reasons I ha e stated in the case of Groom v. Mackley, decided at Hokitika on the 26th of March, 1872, have of necessity the power of remitting the case to the Court below. Probably, the proper course will be for the parties, or one of them, to apply for a re-hearing. I should have desired to allow the costs of this appeal to abide the event of the re-hearing, but for the reasons stated in Groom v. Mackley, f feel bound to give the appellants the costs of the appeal. DAVIS V. LYON. The following is the full judgment delivered by tne Supreme Court in the case of Davis v. Lyon on the 27th February : This is an action by one trustee of an association, called the Wellington Land Association, against his co-trustee. The prayer of the declaration is : 1. For a discovery of all books, papers, etc , in the defendant’s possession or under bis control. 2. For an account, and that the defendant may therein be be charged with interest on moneys remaining in his hands uninveste L The declaration alleges the formation of the association in 1841. The rules of the association are set out. From these it appears that the member of the association were to pay subscript ions of ss. per week ; that sections of land in Wellington were to be bought by the association, and divided into lots, and the lots balloted for. It appears from the declaration that the plaintiff, the defendant, and a Mr. Scott. and a Mr Cooper became trustees of the association, and that the first three sections of land, and afterwards another three sections of land were purchased and vesied in these trustees ; that these were divided into lots, and .-i number of the lots wer« allotted to members ; but it is alleged “ that several of the lots remain utidisp -sed of ” It is alleged that Cooper resigned bis trust in 1843 that the plaintiff left Wellington in 1851 and lias since resided in Westland and Canterbu-y, and that, for mauy.years the sole management of the aff irs of the association has been in the ha ds of the defendant. tiiat he has disposed of divers large sums of money on account thereof and otherwise on account of the association and that large sums remain in his hands. That proper hooks of account and otlffir books were kept by the association, we e delivered to the defendant and are now in his possession. In paragra h 18 it is alleged that the plaintiff has applied to the defendant for and been refused accounts of moneys rocslved and paid by tlio defendant. ‘ In ptvftgraph 10 ( it U ftll-god that the fcliiatlS hit i

applied for inspection of the books, papers, etc.; but that has been, and is, r fused. And the plaintiff, in conclusion, avers that he is unable to discover what sums have been received and paid by ttie defendant, and what books, etc., the defendant has in his possession. To this declaration the defendant pleaded, denying that he had been applied to for. or refused, accounts, and denying tha' he had been applied to for, or refused, inspection of books, etc. The defendant avers in his pleading, that before action he gave up to the plaintiff all the books, papers, etc., in his possession, except those loose memoranda which he lias since found. The plea also states that the defendant does not know whether the plaintiff has been unable to discover what moneys the defendant has aid or received, or what books, etc., lie has in his possession. The plea does not put in issue the allegations that the defendant had received and paid large sums of moneys, or tliatlar e sums of moneys are in his hands, or that the affairs of the association have been for many years under his sole management. On the sth May, 1876, by consent, an order was mad referring to the Registrar to make enqui ies whether up to action commenc'd he defendant refused tlie accounts and the inspection mentioned in the declaration; what, if any, lots of lands remained undisposed of; what books, etc., were in possession of the defendant, and what moneys had be n received and paid by the, defendant. Further consideration was adjourned with leave to appL\' On the 2nd March. 1877, the Registrar reported:— 1. That the defendant did not refuse to deliver accounts; that, the plaintiff asked for accounts and the defendant before action delivered to the plaintiff all the books papers, documents, &c., in His possession, but did not render any account of receipts and disbursements. and that it was not proved to his satisfaction that any ucraand of accounts had been made. That there remain five lo s of land undivided—by that is meant apparently live lots still vested in the trustees—subject to some uncertain claims of members to whom the same hud b«en allotted. That a final account of the association, w th its bankers, the Union Bank at Welliugto i, was, in 1846, made out and signed by the defendant and one other trustee. That there is no evidence that plaintiff was aware of this being signed by the trustees ; that that account shows no balance, but that, since that account, the defendant has received £27 12s. 3d., and that he has kept no book of account. The plaintiff, on the 17th day of January last, m-»ved for a decree. That the lands referred in the certificate as undisposed of be sold, and proceeds paid into hands of the Registrar of the Court, and that the moneys in the hands of the defendant, with interest, be paid into the hands of the Registrar—that these moneys abide the further order of the Court, and that the defendant pay the plaintiff costs of the suit. The defendant resisted that decree, and contended that the suit should be dismissed, with costs to be paid by the plaintiff. At the hearing the Court intimated that as the suit was only for an account and discovery, and there we ; e no parties but the two trustees, plaintiff and defendant, the pi intiff could not obtain a decree for the sale of the land and payment into Court of the proceeds of the sale or of the moneys iu the hands of the defendant. The defendant submits to deal with the moneys in his hands as the Court directs, notwithstanding the terms of the declaration. The only question is as to the costs of the suit: Now, referring to the evidence taken before the Registrar, we have arrived at the conclusion that it is evident that there is no such misconduct on the part of the defendant as would justify the Court in decreeing that he should pay the plaintiff’s costs of the suit. It has been a question with us whether the fact of the plaintiff’s delay—his long continued abstaining from the performance of his duty as a trustee, and the other facts foun 1 by the Registrar appearing on the evidence do not show that the suit was so evidently improper and unnecessary as to justify the Court in visiting upon the plaintiff the penalty of paying the defendants costs as well as his own. Looking however at the fact that.the defendant in his plea left undenied the m -terial allegations already referred to, and also that his conduct, though devoid of corruption or wilful misconduct is not wholly free from blame ; we think that each party must pay his own costs see Payne v. Evens, L.R. 18 Eq. p. 357, where a similar decree was made on the ground of negligence of the trustee in not preserving and having forthcoming the accounts and vouchers for the gains of the trust. The defendant must pay the balance in his hands into a hank, to be agreed upon by the trustees, to the credit of an account in the names of himself and cotrustee. PATERIKI TE KIRIHEKE V. ORMOND. (DEMURRER.) The following is a full report of the judgement in the above case, delivered on the 27th February. This was a demurrer, on various grounds, to a declaration iu an action at the suit of one Pateriki te Kiriheke, a Native, against Mr. Ormond, praying that the plaintiff may be declared entitled to au interest in certain land held under Crown grant, dated on Ist April, 1877, under the Native Lands Acts, and which 1 nd and interest the defendant claims to hold under a conveyance to him from one Apera Pahoro, dated March, 1870. The case made by the plaintiff is that Pahoro, the plaintiff, and another Native were, prior to the proceedings in the. Native Lands Court in 1867, entitled according to Maori eustum to an interest in certain land called Heritaunga ; that the title to the said interest was proved in the Land Court to be in the said three persons, but that it was agreed between those three persons that as to this interest Pahoro’s name should alone of the three be inserted in the grant of Heritaunga as owner of “ the said interest,” and that Pahoro should hold “ the said interest” as trustee for tlie three; and that in consequence of this agreement Pahoro’s name alone of the three was inserted in the certificate of title and grant. It is here to be observed that a grant under the Act does not convey the same interest, namely such interest as existed according to Maori custom, but a new interest iu lieu, namely an interest in the land according to law. I thin!, therefore, that what must be intended as meant by these allegations is that Pahoro agreed to hold the new interest as tru-tee for the three ; the consideration for such a promise is not stated, but may perhaps l>e inferred to be the abandoning of the claims before the Court by the plaintiff aud the other co-owner.

J t appears that the reason for this agreemen’ was that there were a large number of owners of different interests in Heritaunga, a.i d the law providing that not more thau ten na nes shall be inserted iu one grant as gr ntees. The declaration then goes on to allege the issue of the grant, which is set out, having Pahoro’s name inserted therein as co-grantet • >f Heritaunga with nine others ; and that on the 20th April, 1869, after the issue of th grant, the sa-d three persons said “that in pursuance of the premises Pahoro should decl ,r in writing that he held the said land as truster as aforesaid, which he did in writing;” and then a writing is set out by which Pahoro declares that he is “ seized of or interested in the said Ittad (Heritaunga,) Jointly with the other

grantees therein named, not solely in my own right, but as trustee for awd on behalf of the two others (naming them and including the plointiff), who are also natives and have an interest with one in the said land.” This is signed by Pahoro and dated 20th April, 1869. The document was registered in the Registry of Deeds on the 29th May, 1869. It is then stated that the defendant has been in possession of a certain part of Heritaunga, defining it, and of the said interest in the same held bv Pahoro as trustee, and “ claims to hold in fee simple in possession in fraud of plaintiff’s, under a conveyance from Pahoro, dated March 22, 1870 ; that Ormond denies the right of plaintiff in Pahoro’s share iu the said part of Heritaunga occupied by defendant; that Ormond has registered the said conveyance, and that the said conveyance was made with full notice to the defendant of tlie At the argument it was contended that the plaintiff could not rely upon the alleged agreement made before the issue of the certificate, inasmuch as by the 75th section of the Native Lands Act, 1865, “ every contract or promise affecting or relating to native land, in respect of which a certificate of title shall not have been issued by the Court, shall be absolutely void,” and moreover it was pointed out that by the 48th section of the same Act the issue of the grant bars all estate rights and interests of all persons except the grantees, and shall vest in the grantees such estate or interest as expressed in the grant. There is not I think any analogy between this case and those cases decided on the Statute of Frauds, where it has been held that that statute ought not to be allowed to be used as an instrument of fraud; and that though the ( Court would not execute a contract within the statute, yet it will not allow the statute to be set up in defence of a fraud, and consequently, where there has been part performance, it will execute such a contract though there is no written evidence of it. The reason being that the object of the Statute of Frauds was to prevent frauds—not to aid aud protect them. The objects of the provisions in the Native Lands Acts were to abolish the native title over lands brought under the A.ct, and in lieu to grant to those who were proved to be interested, according to native custom, the same laud, but under legal tenm - e; and further, by avoiding all contracts before certificate of title, to protect the natives from disadvantageous sales, and discourage the occupation of native lands by Europeans until, the title being ascertained, it became known who were entitled to contract with Europeans as to the land. If a contract is within the words of the section avoiding contracts, aud is against the public policy of the Act, I should be disposed to think that it could not be relied upon for any purpose, though wholly executed oil the part of that side seeking part performance. For instance, if before certificate an European had a contract for a lease or sale, and such contract had on his part been wholly performed, I should suppose that that part performance would nob entitle him to ask the Court to perform the contract, and treat it as valid, though declared void by the statute. In the present case there is no doubt this difference; the contract is between the Maori owners, and it perhaps may be considered does not come within the public policy of the Act. This question is one of difficulty, and perhaps of wide importance ; but it is not necessary to deal with it for the purposes of the demurrer, for the plaintiff also relies upon a declaration of trust made after the issue of the grant. It was contended at the argument that this declaration was insufficient on the ground of uncertainty : further, that being voluntary, it was, in contemplation of law, fraudulent, and therefore void as against the subsequent conveyance to the defendant. But it does not appear from the declaration that the conveyance to the defendant was for valuable consideration, therefore the defendant cannot on this demurrer rely on the conveyance as being for valuable consideration ; consequently the only question is whether the declaration of trust is sufficiently certain, for if certain then though voluntary yet being prior iu time to the conveyance also voluntary, it will be entitled to priority. Though not free from doubt, I have arrived at the conclusion that the terms of the declatlon are sufficiently certain. It has no doubt been decided that to satisfy the Statute of Frauds the trust must be proved in toto, not only that there was a trust, but what it was—Smith v. Matthews, 3 De Gex ; Fisher v. Jones, 139; Forster v. Hall, 3 Ves. 707. But though the words be few and bare, but yet if what the trust intended appears by necessary or fair inference, that I apprehend is sufficient. Now the giantees became, by the retrospective operation of the Native Lands Act Amendment Act, 1869, owners in common of Heritaunga in shares undefined in the grant, but capable of definition by proceedings in the Native Lauds Court. Consequently Pahoro maj be treated at the time of tlie declaration a 3 tenant in common in fee simple of a share ceitaiu but not vet ascertained. .By the declaration of trust he declares himself seized of that as trustee for himself aud the plaiutiff aud another, and he als > declares that those two and himself “have au interest with him iu the said laud.” It seems to me that the words sufficiently point out that it is the whole share in which they have an iu teres' witli him, aud that the expression “ an interest with him” means that the three together are interested in the share ; the onlv difficulty is whether it can be certainly said tiiat the interests of the three were intended lie equal. In the absence of any indication that equality of interest was not intended I tld.uk it is to be inferred that as the three are t;<> participate in the laud they are to p.trtieip ;te equally. See Lidiard v. Liddiard, 6 Jurist N.S., p. 439} Greville v. Greville 27, Beavan

If it had. appeared from the declaration that the supposed conveyance was for a valuable consideration, then no doubt the case would have been open to a different view. Some of the grounds of demurrer assume that the conveyance was one upon a sale, but that does not appear. I therefore think that the demurrer must be overruled, with costs. The following is the full report of the judgment of the Supreme Court in the case of Henare Tomoana and others v. Ormond, delivered on the 2/th ultimo : HENARE TOMOANA V. ORMOND. In this case the plaintiffs are seven aboriginal natives. They seek to recover from the defendant, as their tenant, seven-tenths of an annual rent of £9O 16s. Bd., accruing during a period of eight years ending 3rd February, 1877. The declaration set out a deed of lease expressed to be made between six of the plaintiffs, together with four others, namely, Arihi te Nahu, Matiaha, Apera Pahoro, and Tareha Moananui, of the one part,—(these persons the deed says being “ hereinafter called parties of the first part”)—and the defendant of the other part. The seventh plaintiff is Rata te Horn', the legal representative of Matiaha, who is dead. The deed purports to be a joint demise by the parties of the first part to the defendant of 1231 acres of land, part of the Heretaunga Block, for the term of nineteen years, at the yearly rent of £9O 16s. Bd. for the first eight yeans, and an increased rent for the residue of the term. The reservation is general, the reddendum naming no person to whom the rent is to be payable. The deed contaius a covenant by the defendant expressed to be made “ with the said parties hereto of the first part, their heirs and assigns,” for p <yment of the rent, together with other provisions to which it is unnecessary to refer. The decla-ation avers that by this deed of lease “ the said plaintiffs, except the said Rata te Honi, together with one Arihi te Nahu, Apera Pahoro, and Tareha Moananui, leased to the defendant the land therein named” There is no averment that Matiaha executed, and in fact it seems he did not, as his name does not appear among the signatures to the lease, which are set out. The declaration goes on to aver that the defendant entered and has continued in occupation 5 that Arihi te Nahu, at the time of the making of the deed, was a minor, and also a married woman, being the wife of one Hiraka, and th-t her interest in the rent is one-tenth ; that Tareha Moananui sold and conveyed his interest in the said land to the defendant on or about the 20th July, 1569 such interest being one-tenth part of the whole ; that Matiaha died in January, 1870. and the plaintiff, Rata te Honi, was duly appointed by an order of the Native Lauds Court as his successor to and in the laud leased ; that Pahoro died in 1874-, and no successor has been appointed to him, and his interest in the land is one-tenth ; and that the defendant has never paid the rent, or any part thereof, to the plaintiffs. The defendant has demurred, the first and principal ground being that the declaration discloses only a joint cause of action in the plaintiffs, and others not joined as plaintiffs. The action may be considered as brought either upon the covenant to pay rent, or upon the reservation. In either view it is of importance to ascertain in the first place whether the lessors are to be taken, on the statements of the declaration, to be joint tenants or tenants in common. On the face of the- lease the lessors appear to be joint tenants, since the demise is joint, and the tenants’ covenants are with all lessors. But there is no estoppel created where an actual estate passes; Co. Litt. 45a; Cuthbertson v. Irving, 28 L.J., Ex. 806; therefore, if it appear on the face of the declaration that the lessors were actually tenants in common, the lease must be taken to enure accordingly. Considering the allegations respecting the shares of Matiaha and Pahoro, which are inconsistent with the existence of the jus accrcscendi, we think that the declaration must be taken to show a tenancy in common. It is, indeed, pretty plain that the declaration is framed on the assumption of a tenancy in common; otherwise the pleader would not have joined the representative of Matiaha, but would have claimed his share of the rent, and also that of Pahoro as belonging to the six plaintiffs by survivorship such rent at least as has accrued since the respective deaths of those two natives. But if the lessors were tenants in common, they must necessarily be taken to demise as such. We shall presently have to refer more particularly to the authorities on this point. Next, what is the effect of the non-execution of the lease by Matiaha, and of the infancy and coverture of Arihi. It is clear on the face of the declaration that there has been no demise of the share of either of these natives, aud therefore no valid reservation of rent in respect of those shares. However, there is authority for saying that the lease may nevertheless enure as a good lea e for eight-tenths of the land, subject to a reservation of eighttenths of the rent mentioned in the redden dum. (2 Roll. Abr , 453, 1. 35; Cartwright’s case, cited by the Chief Justice iu Putt v. Nosworthy, 1 Ventris, 135), and such we shall take it to be. It is clear also that a covenant to pay rent is not obligatory if the lessor doe not execute. Pitman v. Woodbury, 3 Exch. Rep. 4. In regard to the purchase by the defendant of Tareha’s share, we see no reason to doubt that an apportionment of the rent would take place iu consequence. We have not found or been referred to any direct authority on this point. But Litt § 222 shows that rent-service is apportionahle on the purchase by the reversioner of parcel of the land out of which the rent is issuing, according to the value of the land. A fortiori must the reut be apportionahle where the purchase is of an undivided part of the whole of the lauds demised ; for in such case no valuation is required, aud though neither Littleton nor Coke puts the case of a purchase by the tenant, it is within the reason of the rule stated by Littleton in s ■ction 222. There is nothing in the objection that by his purchase of Tareha’s share the defendant be-

came co-tenant in common with the other lessees. It is settled that a tenant in common, or even a joint tenant, may be lessee of the undivided shares of his companions. Co. Litt, 186 a ; Cowper v. Fletcher, 34 L.J.Q.8., 187. We shall therefore assume that the purchase of Tareha’s one-tenth left payable seven-tenths of the specified rent. Of these seven-tenths six were payable in. respect of the shares of the six plaintiffs who were lessors, and the remaining one-tenth was payable, not in respect of the share of Matiaha, who did not execute, but in respect of the share of Pahoro. Thus we reach the specific question which appears to us to be raised by the demurrer, viz., whether the declaration is demurrable by reason of the non-joinder of Bahoro s represontati .e. The misjoinder of Matiaha is plainly within the 42nd section of the Supreme Court Practice and Procedure Amendment Act, 1866. The non-joinder of any person in respect of Pahoro’s share is not met in the same way, either by that Act, or by the rules of procedure. Rule No. 118 provides for the nonjoinder of a plaintiff, but only in the case where this appeal's at the trial —that is where it appears on the evidence only, when it is to be amendable as a variance. Where on the face of the declaration the joinder of some other person as plaintiff appears to be requisite, we are of opinion that the case falls within the rule of the common law upon the subject, and that the defect is a ground of demurrer. Kccleston v. Clipshatn, 1 Wm. Saunders, 153, note (1) ; Cabell v. Vaughan, id. 290, note t,4). Rule No." 124, providing that “all objections on the ground of mis-joinder or non joinder of parties shall be made by notice in writing a« aforesaid and not otherwise,” may a.t first sight seem to include even cases where the defect appears upon the face of the declaration. But that rule must be construed in connection with the series of rules relating to the joinder of parties ; when it becomes apparent, especially if the rules are collated with the corresponding sections of the English statute from which they are taken, that nothing more is intended than to substitute a rotice for a plea iu abatement. This is confirmed by the concluding - words of rule 121 itself —“If such notice have not been given, the defendant shall either plead in bar of the action or demur.” These words show that it was a >t meant to supersede demurrer where applicable. Prac ically demurrers to a declaration in our procedure are 1 ttle different from notices requiring the plaintiff to amend. To say that the declaration discloses only a joint cause of action, is to put the objection in a somewhat equivocal form. If we could consider that the cause of action was, in the proper sense of the word, a joint one—that is to say, if we could regard the covenantees as joint tenants of a covenant in gross, the declaration might be unobjectionable, always supposing that the sale hv Tareha merely extinguished his interest in the covenant, and did not wholly destroy the right of action thereon; which perhaps is hardly consistent with its being a covenant in gross. Upon such a view of the case the cause of action would pass to the surviving covenantees, except 1. areha, and the six plaintiffs who signed the lease would now be entitled by survivorship to the whole rea t —that is, to eight-tenths of the sum mentioned in the reddendum, less the oue-tenth extinguished by Tareha’s sale to the defendant. We have, as is very clearly put in the judgment of the Court of Common Pleas, in Thompson v. Hakewill (35 L.J., C.P. 18) to choose between four possible views of the nature of the right of action. It may be (1) a strictly joint right, as just explained ; or (2) a separate right in each covenantee to sue for his own share of reut, running witli his own share in the reversion; or (3) a joint right in all to sue for the whole rent running with what has been called “ the entire reversion”; or (4) a joint and several right in all and each running as to each share of rent with each separate reversion, and also as to the whole rent with the entire reversion. Unless it can be shown that the right is of the kind first mentioned, the plaintiffs must fail, for they are suing jointly for the whole rent— i.e., for the whole as reduced by Tareha’s sale —aud do not represent the entire reversion. It appears to us perfectly clear upon principle, whatever difficulty may be thought to exist upon the authorities, that the cause of action is not of the first kind. That would be to regard the covenant to pay rent as a covenant in gross, by which construction the right to sue on it would be detached from tue reversion, and from the rights of distress and reentry; and every intendment should, we conceive, be made against such a construction as contrary both to the probable intent of the parties, and to the well-established presumption of law, that the rent is incident to the reversion—for, as Lord Hale says: “The law uses all industry imaginable to conform the reservation. to the estate; and the covenant iu incident to the rent.” Sacheverel v. Frogate, 1 Ventris 161, S.C. U. Saunders, 367 a. It is true that Litteiton says (sec 316) ttiat “if two tenants in common make a lease of tbeir tenements to another for term of years, rendering to them a certain rent yearly during the term, if the rent be behind, &c., the tenants in common shall have oue action of debt against the lessee, and not divers actions, for that the action is in the personalty.” From this it seems to have been inferred in the case of Wallace v. Maclaren, 1 Man. and Rv. 516, that the right of action would in the case supposed by Ifitteltou ve-t in the surviving tenant in common. But Litteiton says nothing of the kind, nor is it to be inferred from what he says. It is quite consistent wifcu what he says that the heir of one of the lessors suould succeed to the r ghts of his ancestor. Co hold otherwise implies that on a demise, purporting to be a joint demise by tenants in common, they become joint tenants quoad the rent, which is an impossible contention. True akoit is that the demise, being by persons who are actually tenants in common, ap pears on the face of it to be a joint demise ; but this nowise affects the right to sue for the rent, whether on the covenants or on the reservation. A demise by tenants in common, though joint4n its terms, operates as a sepa-

rate demise by each tenant iu common of his ovvn share, and a confirmation by each of the demise made by his companions. Bac. Abr. ..-eases (O); Co. Litt. 45a; Thompson v. Hakewill, 35 L.J.C.P. 18. Speaking of such a lease, Lord Coke says: “Albeit the reservation of rents severable be iu joint words, yet in respect of the several reversions the law maketh thereof a severance.” Co. Litt. 197 a. By “rents severable ” he means sometliiug devisable as a money rent, in opposition to the reservation of an entire thing as a horse or a hawk ; and though he is speaking of a lease for lives, that makes no difference for the present purpose. So absolute is the principle that it is repeatedly laid down that tenants in common cannot make a joint lease ; Heatherly v. Weston, 2 Wils. 232 ; Doe dem Poole v. Errington, 3 L.J. (n s.), K.B. 215. Nor does it make any difference that the nature of the estates of the lessors does not appear on the face of the lease. There is no estoppel created by such a demise, for an interest passes and the reservation enures according to the true estates of the lessors. This is shown by the above cited authorities, and .very clearly by Trepots’ case, 6 Rep. 14b There A, tenant for life, and B, remainderman in fee, joined in a lease, by deed indented, which it is evident did not disclose the nature of their respective interests, and was an instrument capable of creating an estoppel; yet on its being found by verdict that the oue lessor was tenant for life, and the other re-mainder-mau in fee, it was held that there was no estoppel, and that the dee I, though purporting to be a joint demise, was not such, but enured as the lease of A during his life, and after the death of A as the lease of B. From the case finally put by Popham. G. J , it is manifest that the rent on such a lease would follow the estates, so that the tenant for life would take the whole during his life. Several modern cases have be n decided iu entire accordance with the principles we have stated. In Beer v. Beer, 21 Law Journal, (J P. 124, the Court had before it what purported to be a joint demise by two tenants in common. Mr. Justice Williams said: “ We are not estopped from looking beyond the instrument in order to ascertain the relation oi the parties to it, when considering what is the consequence of the death of one of the lessors. This, therefore, being iu point of fact a lease of I aid by two tenants in common, with a reddendum of rent, generally, on the death of I'homas Beer, the reversion was split and a share of it descended to his heir, who became entitled to the rent.” In the case of Thompson versus Hakewill, already cited, there was a lease by tenants in common whereby they demised according to their several estates ; but apparently the lease did not disclose the nature of their estates, and the Court spealcs of the demise as purporting to be a joint one. The lease contained a covenant to r pair, entered into by the tenant with the lessors and their respective heirs and assigns. The representatives of the surviving tenant in common sued upon this covenant, but it was held that the covenant was indivisible and ran with the entire reversion, and that the owners of the share of the deceased tenant in common ought to have joined as plaintiffs. It is to k- observed that on the part of the plaintiffs it was contended that die covenant ran with their share of the reversion, and by no means that the entire right of action vested in themselves as representing the surviving covenantees. 111 the earlier case of Foley v. Addeubrooke, 12 Law Journal, Q.B, 163, there had been a similar decision. In that case Mary Whitby, one of the original covenantees, had survived her co-tenant in common, and was still living ; and the action was brought by the representatives of the deceased tenant in common. It was held that Mary Whitby should have joined in the action. But it was neither argued by counsel nor held by the Court that the entire right of action vested in Mary Whitby. Contrasted with these cases is that of Bradburne v. Botfield, 14 M. and W., 559, where it was held that the right of action vested solely in the surviving covenantee. In this case the covenant sued on was entered into with the lessors and with four other persons, who had equitable interests, but were at law to be considered as strangers to the reversion. The covenant therefore was in gross, and could not run either with the entire reversion or with the several reversions. That this was the ratio decidendi appears from the remarks of Baron Parke during the first argument, as reported in 14 Meeson and Welsby, at pages 564 and 565. It is the result of the cases of Foley v. Addenbrooke and Thompson v. Hakevvell, that upon what purports to be a joint demise made by tenants in common, the right to sue on a covenant to repair with the lessors does not survive, but devolves in part on the heirs of a deceased lessor. Notwithstanding the joint terms of the demise, the covenant runs with the true reversion. Pari rations it should be tilt; same with a covenant to pay rent reserved upon .-uch a demise. Whether in the case of rent the covenant runs with the entire reversion we need not consider. There is, notwithstanding what Littleton says in section 316, some authority that tenants in common may either join or sever in debt or covenaut for rent. (See Midgiey v. Lovelace, Carthew, 289 ; Jartin v. Crompe, 1 Lird Raymond, 340.) But as already observed this will not help the plaintiffs, who must, to succeed, make out their title to sue for the whole reut. All must join, or each must sue separately. There is no other alternative. We should have thought it unnecessary to reason this matter at so great length, but for the case of Wallace v. Maclaren, already adverted to (1 Man. aud Ry. 5i 6). This ease was nob cited on the argument. It there appears to have been decided that upon a demise by tenants in common, the survivor may sue iu covenant for the whole rent accruing due after the death of his companion, although the reservation was to the lessors according to their respective interests. The reasons given, viz., that the demise was a joint one, and that the action for rent by tenants in common is

a joint action (for whicb Litt., section is cited), are, we venture to think, on the grounds already stated, insufficient and mistaken. The case has been rarely cited, and, so far. as we know, never followed. As the decision appears to us contrary to principle, and opposed to the general current of authority, ancient and modern, we feel justified in disregarding it. It is proper, however, to notice that there are certain dicta to be found in the class, of cases to which we have been referring, which may at first sight seem to warrant the decision in Wallace V. Maclaren. The most pointed reference to the subject is found in what fell from Baron Parke in Wooton v. Steffenoni, 12 M. and W. 129. That was an action on a covenant to repair contained in a lease by tenauts in common, which on the face of it was a joint demise. In the course ,of the argument his Lordship said :—“ Again, this is a demise of two undivided interests, of which the parties are tenants in common, and is a joint covenant with both ; will that run with the reversion ? It does not appear on. the face of the lease that they have separate interests, otherwise the covenant might be construed to be a separate covenant with each in respect of his separate interest. Therefore this is a joint contract with two ; and though their estates are separate, we cannot look out of the lease for that fact.” Perhaps by these expressions the learned Judge meant only to suggest that such a covenant would not run with the separate reversions in each share so as to ertate two distinct rights of action. If his Lordship really intended to deny that the covenant would run with the entire reversion, the dictum is contrary to the case of Thompson v. Hakewill, and also to that of Foley v. Addenbrooke. Such a covenant mav well be joint in the sense that all the reversioners must join in one suit, yet not joint in the sense that the right of action vests in the surviving covenantee. Then as to what is said by the learned baron (and the same doctrine appears in some other modern cases), respecting the inability of the. Court to look out of the lease iu order to ascertain the veil interest of the 1- ssors, this seems directly contrary to T reports’ case, and to the judgment of Mr. Justice Williams in Beer v. Beer. However this may be (and it is a serious thing to contest the an hpvity even of an obiter dictum■ by Baron Parke), the doctrine has never been applied to the reservation of rent, which, it it> beyond doubt, in snob a case, must enure according to tli" true estates of the lessors (Whitlock's case, 8 Rep., /1a) ; nor can it be supposed that the covenant tor payment of rent, if entered into with the persons legally entitled in reversion, and .with them only, would not run with the reversion so long as any right of action exists upon it. It is not allowable to adopt a, construction which would detach the right to the reut from the remedy for its recovery, nor possible that any remedy should exist apart from the right. The result is that the plaintiffs are suing for the whole reut reserved on the lease, less I’areha’s share, that ; s seven-tenths of £9O 16s 8d per annum, whilst they do not show a title tom re than six- tenths, and the defendant is justified in his objection that all the necessary plaintiffs have not been joined. Pos-ibly, as we have already said, the six plaintiffs may be entitled to sue separately each for his own tenth part ; on that we give no opinion ; but they are not, in onr judgment, entitled to club together six several actions each for oue-tenth. They may choose, perhaps, between a joint action for the whole seven-tenths, and separate actions for each tenth. There is no raid lie course. The plaintiffs, it is evident, never meant to sue for Palioro’s share of the rent. They demanded seven-tenths, conceiving that in respect of Matiaha’s share one-tenth was due It is plain that this was a mistake. Had we been of opinion that they had been entitled to sue for Pahoro’s share it would, however, have supported the declaration. But for the reasons above given we think they ai’e not so entitled, and that the demurrer must be allowed. LICENSING COURT. Friday, March 5. (Before Mr. Crawford (chairman), and Messrs. Kebbell and Moore, commissioners.) A NEW HOTEL. Mr. Walter Bishop applied for a license for a hotel in Cuba-street, to be known as Duff’s Hotel. He deposed, in cross-examination by Mr. Ollivier, who appeared to object to the license, that the house was roomy and in everyway suitable for the accommodation of boarders, &c., there being also everything provided which they required for the purposes of an hotel. George Bowden, who stated he had been employed to get signatures towards the petition in favor of the granting of the license, was next examined. He deposed that about 450 householders in all had signed the petition, and he had met with no real opposition. (Witness, on being shown a counter petition, stated that similar signatures appeared upon both, their number being, as it were, either 19 or 20.) After some observations the Chairman of the Bench remarked that, in the re-consideratipn of applications, the requirements of the city should be considered, and when tnat was done it was found that there was insufficient hotel accommodation for travellers and visitors, although perhaps plenty for bar-frequenters and others of that ilk. Mr. Crawford observed that it appeared to him a duty to endeavor to increase as far as possible the hotel accommodation of the city, whilst decreasing the number of drinking shojis. That was their intention, and as far as he was concerned he was determined that such a principle should be carried out. The decision of the Bench, therefore, was that t.he license would ultimately be granted on all the requisite accommodation being provided. THE PRINCESS THEATRE HOTEL. Mr. J. F. Margetts applied for a license for the Princess Theatre Hotel. Mr. Allan appeared to support the application, and Mr. Ollivier appeared on the other side. ' .* •••• Mr. Margetts gave evidence as to the accommodation afforded by the hotel, and stated

that .it possessed eleven bedrooms and one sitting-room on the upper storey, together with other rooms on the ground floor. Mr. Montague L. Browne, agent for the Soldene" Opera Troupe, likewise testified to the fact of the house possessing every accommodation. Messrs. Edward Hunter, Overton, and IST. J. Isaacs gave similar evidence, after which Mr. Ollivier addressed the Court in opposition to the granting of the license, and called the Ven. Archdeacon Stock and the Bev. Mr. Paterson to give evidence as to the necessity for the granting of the license, their evidence going to show that the house was not required. Inspector Atcheson objected to the license being granted, as not required in the neighborhood.—The Bench granted the application. TRANSFERS. The transfer of the license of the Melbourne Hotel from Mr. C. J. Hughes to Mr. Mclntosh was granted.—The transfer from Mr. Fenton to Mr. Mountain, for the New Zealander Hotel, was likewise granted; as also the transfer of the license for the Bank Hotel from Mr. Mclntosh to Mr. Bradford. An application by Mr. Charles Moody for a license for the Tramway Hotel, Adelaide-road, was postponed for a week, so as to enable the applicant to complete various impi’ovements required, and which were now pending.