The Express.
London, England, 1847-02-01 00:00:00

EQUITY COURTS.
sefxe Vkle-Chaecellor Xisiett Parse.

MOXHAT O. Ixaaawtca —BI9ICITIC PIIIPOIIXANCE.—
COVINANT RUNNING WITH rill 141.14 D.—This bill wee
filed by two persons aamed Moxhey and Hyams to compel
the specific performance of an agreement entered into by the
defendant to sell to the plaintiff, Hyams, the ground inclosed
within the iron palisade in the middle of Leioester-equan,
together with the palisade itself, and the statue of King
George 1., which stands in the centre of the square. The
property was put up to auction and sold by Mr. Georp
Robins on the 2,3 rd April, 18:39. Hyams was declared the
highest purchaser at 4511. 10s., and he afterwards sold the
benefit of his contract to Moshay. The particulars ofsele con-
tained the following caution "There is, malheureusement, a
covenant, which restrains the possessor of the fee simple free
building upon this grand and unrivalled open space. Al
act of parliament might remedy the difficulty, end it will,
perhaps, be difficult for an enterprising diameter to withstand
the temptation." About a month after the sale, an abstract
of title was de:ivered to the purchaser's solicitor. It was
returned duly approved, and a deed of conveyance was after-
ward prepared and evroased. After theApgromment, how-
ever, it was discovered by the vendor's elicitor that there
was no covenant in it against building. He then inserted a
covenant of this nature in the deed, and the deed so altered
was executed by the defendant. The plaintiff Mozhay, how.
ever, refused to execute it with the covenant which had
been so inserted; alleging, first, that the covenant agnimt
building contained in the deed which was executed
on the first alienation of the property did not run with the
land, and therefore need not be inserted in sabeequent
deeds ; and secondly, that at all events the covenant which
had been inserted by the defendant was unnecessarily large
and specific, the defendant himself having only covenanted
to keep such covenants "as ought to be kept," and not, in
express words, that be would not build, and that be would
keep the getden in repair, and not deface the statue, &a,
all which thine were specifically mentioned in the covenant
which had been inserted in the defendant's deed. And
admitting that these words, or some of them, were contained
in the deed executed on the first alienation, yet
the defendant had no right to force any more ex-
tensive covenant upon Monkey than he had him-
self entered into. The plaintiff, Moxhay, wee
willing to indemnify the defendant against any action that
might he brought against him for a breach of the covenant
into which the defendant had entered ; and it was now
sought to have the agreement completed on a footing of this
nature. Mr. Russell and Mr. Roundell Palmer appeared
for the plaintiff, Mr. Wigram and Mr. Miller fur the de-
fendant.

His Honour directed a reference to the master to approve
of a proper conveyance. He said that in a similar cage in
which Lord Cottenhans had been pressed to decide whether
or not a certain covenant should be introduced into a con-
veyance, his lordship tookiiiiiiraicouree. With that pre.
oedent before hist, his Honour would not decide (till the
case had been before the muter) whether any and what
covenant should be introduced.

Ream VioaChaaaellor anagram.
Lars O. BLACKWALL RaILWAT C .—RATE OF
COMPENSATION TO Rscvoaa or PARISHES IN LONDOIf
TOR Loss or TITRES ix RESPECT or Houses TALE'S
/OR TER PURPOSES or TEE COSIPANT.—The facts of this
case were noticed un the argument in oar impres-
sion of the 13th inst. His Honour now delivered the follow-
ing judgment upon the ease : " The plaintiff in the lint suit
la the rector of St Olave, Hart-street; and the defendants
are the Blackwell Railway company. By a decree passed in
1646 the plaintiff is entitled to claim of the company 2s. 9d.
in the pound upon the annual value of all houses in the
=of St. Ohne, Hartotreet, in lieu of tithe. The de.
te, under the powers of their act, have purchased or
taken thirty-three houses within the parish : and the ques-
tion is, what render they are hound to make to the rector in
respect to those houses / The answer to this depends
upon the construction to be put upon the 33rd section of
the statute 2 & 3 Victoria, esp. 95. This see-
tin, sitar referring to the prior acts of parliament
empowering the company to take the houses, makes provi-
des fur iemnifying the rectors and impropriators of the
several parishes (including that of St. Olave, Hart-street)
through which the railway wasto run against such loss es
might otherwise accrue to them respectively by reason et
taking down or using for the purposes of the said acts any
hews sr building in the said parishes ; and for that pur-
= Yeses sr
that "after the occupier or occupiers of any
or building to be taken down, for the purposes or
under the powers of the said acts, within the said parishes
or either of them, 'hall have quitted the possession thereat
in premium at the said acts, or of any notice to be left for
that purpose under the powers or provisions thereof; and in
the atiatiars and until new houses or other buildings shall
be ersellni, sompleted, and occupied, on the ground whisk
shall baithered under the provisions of the said acts, with in the
esidpedass or either of them, °finch an annual value that the
tithes sr annual payment in lieu thereof for the time being
actually payable for such new houses or buildings, shall be
fully equal to the tithes or annual mums in lieu thereof, pay-
able foe the houses or buildings so for the time being quitted
by the occupiers thereof within the said parishes or either
of them, the tithe or annual sum of money or customary
byment in lieu of tithes payable in respect of the houses or
uildings within the said parishes or either of them which
shall be so quitted se aforesaid, according to the averment
tiamadf, to the 25th day of March last, or an MIMI) aum of
mewl Or customary payment in lieu of tithes whiz?' the
said rectors and impropriators, their respective success:es,
heirs, or soigne, may sustain by the want of occupier of, Of
by the taking down of sueh,houses or buildings respectively es-
timated ss abrefaid, shall be paid and payable to the said
several rectors and impropnatms their respective PAUMCOIOII,
heirs, and snips, out of the monies to be applied for the
purposes of the said acts." The question is, wnat construe-
don is to be pat upon the words " according to the last la-
saamound thereof to the 25th March lath" The ease made
by the bill is this:—After stating the title of the plaintiff, it
states the decree of 1545. It then states that before the
giblatlr s time the annual vales of the titheable premises
bodies msemsd by agreement between the rector and the
seaspien, at an lapsed maul value of this houses ; and that
the plaintiff, apes Wag iadostad to the rectory, tad col-
lected his tithes gem its of the existing assessment,
upon a thongs el , when the annual value
111,1= 1101100 WM EOM ameesed by agreement; and that,
la asking such smsommets, the poor-rate was usually
SAM' to. The bill then states the acts empowering
Ito sonapsen to oothentet the railway ; that for the purpose
Owed arta, 33 bosom have been taken by the esmpany in
the parish of St. Olen, and that 2,978/. ia the aggregate
annual sum at which those houses have been assessed for the
relief of the poor. The bill then states that the assessment
of the houses agreed upon between the rector and the occu-
piers differed from the assessment to the poor, but that the
aggregate amount was more. The bill then states that the
occupiers have quitted the houaca so taken, and that part
thereof ate still left standing, while others have been pulled
down and new buildings erected in their place; and the bill
then claims 2a. 9d. in the pound upon the old houses minas
2s. ltd. in the pound upon the houses lett standing, end
upon the houses built and to be built by the company. The
plaintiff admits that he did not collect 2a. 9d. in the potted
van the annual value of any houses in the parish except 4,
set which one was occupied by the Trinity Company, a
seessed by the East and West India Dock Company ; a third
used as Commercial Sale-rooms, and, lastly, the Excise.
maw, in Crotched-friars, in the occupation of the de-
ausisists ,• and that upon them four, 2e. sd. in the pound bad
bras pia upon the annual value agreed upon between him-
self sad the occupiers. The plaintiff says that, for the mks
et bensony and good will between himself and his
parblehmes, he had remitted part of the 2s. 9d. in the
pound upon the value, but that such remission was a volun-
tary act on his part, and not the result of a binding agree-
ment ; and he claims to be entitled to the full sum of 2s. 9d.
The defendants, on the other hand, insist that the anneal
sum actually collected by the rector reprettets the " assess-
ment " intended by the legislature in the clause et
the act which has been mentioned. Th? first ques-
tion is, what is meant by the word atonement /
And here it may be observed, that the plaintiff
has not proved any assessment by earcement ex-
=pun the four houses enumerated shoe?, and four
which I shall presently mention. The plaintiff has
aligned that the word " amesement" refer, to the assessment
ter the relief of the poor as • means of measuring the annual
value; and that Is. 9d. in the pound ought to he calculated
upon that in the case of each house taken by the company.
To the' argument I cannot accede, unless there is nothing
in the nature of an assessment relating to the tithes by whisk
the word in the act can reasonably be satisfied. Now it re-
lators to me that that is not the slate in which this case iii
found ; but, on the contrary, that there existed before, and
at the time this act passed, that which the I. gi•lature moat
have intended to describe by the word as eement. The
24. 9d. in the pound given by the decree of 1.545 was a bead
eid
quantity,ito and the charge which each occupier was baths
ed upon the annual value of his house ; and whoa