shew that the plaintiff should be carried from Cardiff to Gloucester in time to overtake the Newcastle train. That is a point on which the ticket does not assist us. It contains only a statement that the carriage would run from Cardiff to Newcastle; and to this statement the law attaches the obligation that the journey shall be performed in a reasonable time. The only remaining circumstance is, that the train should have started at 4.34. This means only that the train was due to start at Cardiff at 4.34; and the question is, whether it was due in the ordinary sense of the term. That depends on what rules the duties in respect of trains arise; and that must be proved. But the only proof offered is from the officers of the company. The real proof, however, lies in the time bills, to which so much importance was given in Denton v. The Great Northern Railway Company. Then, I apprehend, it was clearly for the plaintiff to give that evidence; and if it had been produced, we should have seen whether there was a warranty, or whether the arrangement was not for the next available train. I think that both the law and the merits are with the defendants. BYLES, J.-I am of the same opinion. The case is an important one, as it affects every railway ticket for long distances. I can see here no absolute promise or guarantee in regard to time. The declaration states only that the plaintiff was to be carried in a reasonable time; but no one can say that the ticket states anything to that effect. It only shews that there must be a reasonable mode of executing the contract. To prove a guarantee the time bill should have been produced. SMITH, J.-I am of the same opinion. This was not a contract to carry within a reasonable time, simpliciter, but according to the terms on which the trains were advertised. It is clear that there were bills relating to the trains; and either they were in evidence or they were not. If they had been, it would have appeared on their face that the company had made an express stipulation that they would not be liable for a detention of this character. I think, therefore, that it was not a breach of contract.-Rule absolute. THOMPSON and Others v. HAKEWILL.-June 24 and able wear and use thereof only excepted; and like aurone and on July 10. Joint demise by tenants in common-Demise by tenants surrendered and yielded up the whole of the said messuage, buildings, premises, and fixtures greatly out of repair, and in a very ruinous and bad condition, reasonable wear and use excepted, contrary to the said covenant in the said lease. Demurrer, and joinder in demurrer. The grounds of demurrer stated in the margin were, that the declaration shews no title in the plaintiffs to sue, and that the joint covenant set forth in the declaration, under the circumstances therein set forth, does not run with the reversion. Plaintiffs' points: -1. That the declaration shews that the plaintiffs are entitled to sue the defendants on the covenants to repair contained in the lease in the time of the breach, as is admitted, in the plainquestion, the reversion on that lease having been at tiffs. and during the said term, all the estate and interest | of the said John Cobley in the said messuage vested in one Richard Monkhouse, by assignment. And the plaintiffs say, that after the making of the said lease, the said Henry Thompson died, leaving the said Judith Thompson and Sarah Thomasin Teshmaker him surviving; and afterwards, and during the said term, the said Sarah Thomasin Teshmaker died, leaving the said Judith Thompson her surviving; and afterwards, and luring the said term, the said Judith Thompson died, eised of and in her said reversion in the said demised remises; and by divers deeds and conveyances all the state and interest of the said Judith Thompson in he said demised premises, and her said reversion of nd in the same, which was in her at the time of her eath, became vested, and is now vested, in the plainffs, who are seised of the same. And the plaintiffs y, that afterwards, and during the said term, and hilst the said Richard Monkhouse was assignee as foresaid, and whilst the said reversion was vested in e plaintiffs as aforesaid, entry was made upon the id demised premises, by and on behalf of the plainffs, to see the then state and condition of the repations thereof, according to the said lease; and notice ad warning, in writing, of divers defects, decays, and ints of reparation, then found upon the said view in d about the said demised premises, and the buildings en erected and built upon the same, was given at the id demised premises to and for the said Richard onkhouse, to repair and amend the same within the ace of three months then next following, according the said lease. And the plaintiffs say, that three onths after the said notice and warning elapsed, in e lifetime of the said Richard Monkhouse, before is suit, and all things have been done and have hapned, and all periods of time have elapsed necessary entitle the plaintiffs to sue the defendants on the ad lease, and to bring this action; and before this it, and whilst the said Richard Monkhouse was asgnee as aforesaid, and whilst the then said reversion as vested in the plaintiffs as aforesaid, the said lease-The very question now to be decided was put, in the White, for the defendant, in support of the demurrer. pired, ended, and determined, yet the said Richard onkhouse, in his lifetime, after he became, and whilst B.:-"This is a demise of two undivided interests, of case of Wooton v. Steffenoni (12 M. & W. 134), by Parke' was, assignee as aforesaid, and after the said reverwhich the parties are tenants in common, and it is a n came to and was vested in the plaintiffs as afore-joint covenant with both. Will that run with the id, and during the continuance of the said demise, reversion?" The first point is, that this is a joint ffered the whole of the said messuage, and all the covenant. [Byles, J.-In respect of the covenantees.] en buildings and fences which were then erected, (Foley v. Addenbrooke, 4 Q. B. 197). [Byles, J., reult, and set up upon the said demised premises, to ferred to Beer v. Beer (12 C. B. 60).] The cause of or remain greatly out of repair, for want of need-action is joint, because the interest of the tenants in and necessary reparations and amendment, conary to the said covenant in the said lease. And the aintiffs also say, that the said Richard Monkhouse, his lifetime, and while he was assignee as aforesaid, id after the said notice and warning in writing, and hilst the said reversion was vested in the plaintiffs aforesaid, did not, within the space of three months ext following the said notice and warning in writing, pair or amend the defect, decays, and want of repation mentioned therein, or any of them, but wholly eglected so to do, contrary to the said covenant in the id lease. And the plaintiffs also say, that at the end, spiration, and determination of the said lease as aforeaid, the said Richard Monkhouse, in his lifetime, did ot surrender or yield up the said messuage and denised premises, with the buildings then erected upon he same, or any part thereof, well or sufficiently reaired, upheld, or kept, according to the covenant in he said lease; nor did he surrender or yield up the same, or any part thereof, with the fixtures, or any of them, which during the said lease had been affixed or set up in and about the said demised premises, in good plight or condition, reasonable wear and use thereof excepted, but the said Richard Monkhouse 2. That the reversion of the whole or of a moiety of the demised premises having been at the expiration of the lease vested in the plaintiffs, and the whole of the demised premises having been then out of repair, as is admitted, the plaintiffs are entitled to recover damages for the non-repair of the whole or of a moiety of the premises. 3. That the plaintiffs being the representatives of the surviving covenantee, are entitled to sue on the covenants. Defendant's points:-1. That the declaration shews no title in the plaintiffs to sue. 2. That the joint covenants set forth in the declaration, under the circumstances therein set forth, do not run with the reversion. 3. That the declaration is bad, by reason of the nonjoinder of the representatives of Sarah Thomasin Teshmaker, who is therein described as tenant in common of an undivided moiety of the messuage and land referred to in the said declaration. of the covenant. It is a question of construction; so respec Maude (Comyn with him), for the plaintiffs.-The case has been argued as if the parties were joint But as far as tenants, and not tenants in common. the estates are concerned, these are perfectly several. (Co. Litt. 45. a.; Bac. Ab., " Covenant," K.) The covenant is not joint, for at the end of it are the words "respective heirs, &c." If this is a case where the words do not point precisely to a joint covenant, the Court, having regard to the several holdings of the tenants, will construe the covenant to be several. Tenants in common have separate estates, and if they join in a lease they will have separate reversions. [Willes, J.-The word "heirs," in the clause "respective heirs and assigns," is not of much importance. They would be heirs or executors, according as the reversion was real or chattel. "Assigns," however, is a different term.] The declaration correctly sets out the lease. [Willes, J.-I think the pleading do not raise the point; the deed ought to be set out.] This is a covenant with the parties severally, their several heirs and assigns. (Eccleston v. Clipsham, 1 Wm. Saund. 153; Servante v. James, 10 B. & Cr. 410; Badeley v. Vigurs 4 El. & Bl. 71; Gates v. Cole, 2 B. & B. 660). White, in reply.-The question is one of construction. [Willes, J.-The difficulty is in the assignment. If the original lessors had brought actions jointly, not stating their interest, there would have been no dedefence. Byles, J.-My only difficulty is the language of the Court in Foley v. Addenbrooke.] [Maude referred to Simpson v. Clayton (4 Bing. N. C. 758).] Cur, adv. vult. July 10.-WILLES, J., delivered the judgment of the Court. The declaration in this case was in cove nant on a joint lease of certain lands by two tenants in common, whereby they demised the land, according to their several estates, to the lessee, who covenanted with them and their respective heirs and assigns to repair. It then deduced a title to the plaintiff as the assignee of one only of the undivided shares, traced the lease to the defendant's testator, and assigned a breach by him of the covenant to repair, in the time of the plaintiff. To this declaration there was a demurrer; and the objection taken was, that both the tenants in common of the reversion at the time of the breach ought to have joined as plaintiffs in the action. The form of the covenant which we have to construe renders us little assistance. It was suggested that the words "heirs and assigns," being in the plural, assisted the plaintiff. But the word "heirs" is commonly used in the plural, and is satisfied either by heirs in succession or by heirs in co-parceny. The word "assigns" imports no more than that a benefit from the covenant was intended to the assignees of the undivided estates in the reversion; but whether severally or jointly, it does not help us to discover. The word "respective" is equally appropriate, whether the respective heirs and assigns of the covenantees are to join or sever in an action. On the other hand, it may be observed that the covenant is with the lessors, and not with the lessors and each of them. There is no doubt that a demise by tenants in common, though joint in its terms, operates as a separate demise by each tenant in common of his undivided share, and a confirmation by each of his companions. (Eccleston v. Clipsham, 1 Wms. Saund. 153; 2 Rol. Ab. 64; Preston's Shep. Touch. 85; Heatherley v. Weston, 2 Wils. 232). And there is also no doubt that the covenants in a lease by several lessors may be construed as joint or several in respect of the covenantees according to their interest in the land apparent on the face of the deed. (Soubie v. Parke, 12 M. & W. 146). The form of the covenant helping us little, we are at liberty to endeavour to gather the intentions of the parties, by considering the consequences of construing this covenant as joint or several in respect of the covenantees. The interest of the covenantees, tenants in common in a covenant of this nature, may be of four kinds : First, the covenantees may be simply joint tenants of the covenant. This construction of the covenant | is attended with the inconvenience, that the right to sue, vesting in the survivor and his representative, real or personal, may be severed from the estate, or some of the estates, though the plaintiff at law would, no doubt, sue as trustee for the owners of the rever sion at the time of the breach. Secondly, the covenant may be split, and treated as separate covenants running respectively with each undivided share in the reversion of each tenant in common. The inconvenience of this constitution is, tha: a plurality of actions will always be necessary, which plurality might cause great hardship both to the landlords and to the tenant. There is this further inac venience, that the damage which a jury might give m an action by one of several tenants in common woll not be binding on a jury in another action at the sur of another tenant in common, who, therefore, in spect of another interest in the reversion exactly the same in degree, might for the same breach recover damages much more or much less. Lastly, there should be split up into two tenancies in common, this inconsistency, that, if one of the original shares those two tenants in common, at all events, may join in suing. (Kitchen v. Buckley, 1 Lev. 109). covenant running not with undivided shares of the Thirdly, the covenant may be treated as one entire reversion, but with the whole reversion. The only in convenience of this construction is, that no action wil lie, unless all the owners of the entire reversion at the time of the breach can be induced to join as plaintifs. It is clear that a covenant to repair may run with the entire reversion of tenants in common. (Kitchen v. Buckley). But it may be observed, that in that case the covenants could not have been several, as the de Imise was before the severance of the reversion. Fourthly, such covenant may be construed as a covenant in suing, on which the tenants in common may join or sever at their election. And the language of the report in Kitchen v. Buckley is in favour of such a construction where the severance of the reversion is after the demise. We, however, are now called on to decide that the benefit of such a covenant contained in a joint demse originally made by tenants in common, not only but must run with the entire reversion; in other work the tenants in common so situated not only may must join as plaintiffs in an action of covenant. The balance of convenience inclines in favour of this con struction, and is also sustained by the authority of Le case of Foley v. Addenbrooke (4 Q. B. 197), where Court of Queen's Bench held, that tenants in c mon of the reversion must join in an action on s a covenant as this contained in a lease made b themselves jointly. It is true that one of the core nantees there did not, on the face of the declarat appear to have had an interest in the reversion, te the Court said that they must assume that she had, and on that assumption pronounced judgme The judgment, therefore, of the Queen's Bench be on the very point before us, must govern our d sion. We accordingly give our judgment for the d fendant. This view is also in accordance with Littleton, sec 314, that, even in the case of rent, where the thing be rendered is indivisible and due to all, tenants common must join. The analogy of this to the ca of a covenant with two tenants in common to re a house, in every brick of which they are jointlyterested, and more especially to such a covenant repair after notice, is too striking to require furtis : illustration.-Judgment for defendant. ROLLS COURT. Re Fox's WILL.-July 22 and 24. Will-Time for ascertaining class—" Surviving." Bequest of successive estates for life in residuary personal estate to the widow and sister of testator, and after the death of the sister, a direction to divide the residue among the testator's surviving brothers and sister and their children. The widow survived the sister and brothers of the testator. Two of the brothers left issue: -Held, that the class of persons to take was to be ascertained at the death of the widow, and that they took per capita. Petition for payment out of money paid into court under the Trustee Relief Act. Francis Fox, by his will, dated the 24th March, 1795, gave successive life estates in his residuary personal estate to his wife Hester Fox, and his sister Elizabeth Allen; and it was his mind and will, that after the death of my sister Elizabeth Allen, the reiduary effects shall go to my surviving brothers and ister, and their children, to be divided equally beween them." The testator died shortly afterwards, leaving suriving his widow, and three brothers and one sister eside Elizabeth Allen. Elizabeth Allen died in 1810. All the brothers and the sister survived her, but died in he lifetime of the widow. The widow died in 1859. At her death there were living children of two of the rothers. The other brother and sister had died with ut issue. The question was, at what time the class of persons atitled was to be ascertained. E. F. Smith, Q. C., for the petitioners, contended, that he class was to be ascertained at the death of the estator. (Shailer v. Groves, 6 Hare, 162; see reports of same case 11 Jur. 485, and 16 L. J., Ch., 367; Evans Eeans, 25 Beav. 81; Kidd v. North, 3 De G., Mac., G. 951; and 2 Jarm. Wills, 691). For, for some of the respondents, contended that he death of the widow was the time for ascertaining he class. (Atkinson v. Bartrum, 28 Beav. 219). Fooks and Romilly, for other respondents. Sir J. ROMILLY, M. R.-The present case appears fost strongly to resemble Atkinson v. Bartrum; the ord "surviving" applying to the whole class. The eriod of distribution is the death of the surviving mant for life, and in order to take, they must survive he period of distribution, and they take per capita nd not per stirpes. This decision is consistent with hailer v. Groves, although not with the reasons for e decree given in the judgment in Mr. Hare's reorts. Probably the words in that case were " or their sue," and not" and their issue," which would explain he inconsistency. VICE-CHANCELLOR WOOD'S COURT. WILSON V. HART.-July 10, 11, and 12. Notice-Covenant running with the land. Juare, whether a covenant not to carry on offensive trades runs with the land, as being a personal covenant merely? Though a purchaser is not affected with notice of an instrument which he is told does not concern him, and which does not lie in his path, yet if he is told of any thing as affecting the property, though incorrectly, he is bound to inquire, and will be held to have notice of the whole truth. Therefore, where a person, in negotiating the taking of a house from an agent, who had authority merely to let, subject to a restrictive covenant as to user, was only No. 559, VOL. XI., NEW SERIES. partially informed by the agent of the extent of the restriction, he was held to have constructive notice of the whole covenant, as he was bound to have made inquiry of the principal. Parker v. Whyte (1 Hem. & Mil. 167) observed upon. Motion for decree.-The bill was filed against Jane Hart and John Thompson for an injunction to re strain the use of a house for the sale of ale, beer, the following circumstances:-— wine, or spirits, or any other intoxicating liquor, under estate in Darlington, known as the Pindar Bank EsThe plaintiffs were the owners in fee of a building tate; and by an indenture, dated in December, 1859, for the valuable consideration therein stated, they conveyed a piece of land, part of the estate, unto and to the use of R. Robinson, his heirs and assigns; and the indenture contained a covenant by Robinson for himself, his heirs, executors, and administrators, with the plaintiffs, their heirs and assigns, to repair the roads, and to erect the buildings in the manner in the indenture appearing; and further, "that no building or buildings erected or to be erected on the said purchased premises, or any part thereof, shall be used for the sale of ale, beer, wine, or spirits, or any other intoxicating liquor; nor for the purpose of carrying on any trade or business of a noxious character, or which shall be deemed either a public or private nuisance." The house in question was erected by Robinson, who subsequently conveyed away the premises, and they afterwards became vested in the defendant Jane Hart in fee. The defendant Jane Hart admitted that she had notice of the restrictive covenant, and submitted to the injunction. The house and premises were let by her through W. T. Robinson, an auctioneer, as her agent, to the defendant John Thompson, as tenant from year to year, at rack rent, from the 23rd November, 1864; and he has since then sold ale and beer there, and though requested, refused to desist. The plaintiffs, therefore, filed this bill, and they charged, that the defendant Thompson had, at the time of taking the house, notice of the restrictive covenant, or if not, that it was through his own neglect in not making proper inquiries; and they prayed for relief as above. The defendant Thompson, by his answer, denied all notice, knowledge, or suspicion of the covenant, or of the fact that there was any restriction against the sale of beer in the house let to him, or in any house in the neighbourhood; and he stated that, having lived some distance from Darlington, he had no particular knowledge of the place; but in September, 1864, he was looking out for a house in the town, in which to carry on his business of a grocer, part of which was the sale of ale or beer to be taken away from his shop; and having heard from a friend, Mr. Littlefair, that the house in question was to be let, they went together to the office of W. T. Robinson, who asked what the defendant Thompson intended to use the house for, and he told him that he wished to carry on the business of a provision dealer in it. Robinson then said, his orders were not to let it for a butcher's shop, but that the defendant could carry on any other business in the house that he chose. Littlefair also denied knowledge of the covenant, and his version of what took place was substantially the same; but W. T. Robinson gave evidence, "that the defendant Thompson told him he wanted the house for a greengrocer's and baker and provision dealer's shop, and that what he said as to the purposes for which he required the house, I did not think it necessary to say anything about the restriction against selling ale or beer on the premises, being also under the impression, that the k k .. from defendant Thompson and Littlefair were both well aware of the restriction. I told the defendant Thompson that he was not to use the premises for a butcher's shop, but I did not say to him that he could carry on any other business in the house." This was, however, contradicted by an affidavit of the defendant Thompson, in reply; and he also said, that if that statement had not been made, he would have inquired whether there was any other restriction. Evidence was given on the part of the plaintiffs, that there was a large district of the town of Darlington in which there was no beer-shop or public-house, and that the existence of restrictive covenants against using houses for those purposes was a matter of public notoriety in the town. On the other hand, it was proved that there were two houses on the Pinderbank estate in which beer was sold; but the occupier of one of them had, on request, promised to desist from so using his house. The defendant Thompson submitted that, to the extent of his interest, he was a purchaser for value, without notice. Since the filing of the bill, he had received notice to quit the house. The suit now came on, on motion for decree. Giffard, Q. C., and Fry, for the plaintiffs, cited Spencer's case (5 Rep. 16; S. C., 1 Smith's L. C. 36); Roach v. Wadham (6 East, 289); The Duke of Bedford v. The Trustees of the British Museum (2 My. & K. 552); Minshull v. Oakes (2 H. & Norm. 793); Hewitt v. Loosemore (9 Hare, 449); Robson v. Flight (13 Weekly Rep. 196); Parker v. Whyte (1 Hem. & Mil. 167); and Moses v. Taylor (11 Weekly Rep. 81). De Gex, Q. C., for the defendant Jane Hart, took no part in the argument. Kay, for the defendant Thompson. Sir W. P. WOOD, V. C.-Two questions of considerable importance arise in this case, though the subject-matter of the suit is of very small amount. [His Honor stated the facts.] As to the covenant running with the land, I have great doubt, since it was held in Spencer's case that a covenant relating to something not already made did not bind the assignee, except by express words, which are wanting here; and further than that, it is to be considered whether a covenant like this, as to carrying on a trade, is not a mere personal covenant. The covenant is simply as to the personal act of the person living on the property, for the non-performance of particular acts. Nevertheless, a vendor has a right to insist on such a covenant, as was held in Tulk v. Moxhay (11 Beav. 571; 2 Ph. 774), and if there be notice, it must be performed. Then, as to the question of notice. In the first place, it was urged that there was no proof of the execution of the original deed by R. Robinson. But this is immaterial, except upon the question as to whether or not the covenant runs with the land, and the other deeds are duly proved, and Robinson was clearly bound in equity, whether he executed the deed or not, and therefore the case is made out as to the property being conveyed subject to this equity. Then, the defendant Thompson denies in his answer all notice of this covenant, and that being the case, the plaintiffs entered into evidence (though they make out nothing as regards the defendant upon this point), that many houses in the neighbourhood are let with this restrictive covenant. On the other hand, the defendant shews that two houses on the Pindar Bank estate are let for selling beer. But that does not bring the case up so high as The Duke of Bedford v. The Trustees of the British Museum, and the question is simply one of notice. In Parker v. Whyte I rested my decision on the ground that the lessee said, "I will make no inquiries and take the property unbound by equities." The case there did not require so broad a ground as that on which I put it; but I held that a person taking property in that way, without inquiry, was bound with notice of a covenant. I have looked again, since this argument, at the case of Jones v. Smith (1 Hare, 45). There are authorities which seem to require some midification of the doctrine laid down in Parker v. Whyte, and Vice-Chancellor Wigram, following the opinion of Lord St. Leonards, in his work on Vendors and Par chasers, says, "If mere want of caution, as distinguis from fraudulent and wilful blindness, is all that can be imputed to the purchaser, there the doctrine of constructive notice will not apply." But the doctrine can hardly be put so strong as that, as we see by the case of Jackson v. Rowe (2 Sim. & S. 472); and Lors St. Leonards himself, judging by his illustrations hardly intended that it should be put so high. I cat. not conceive that a person buying a large estate is not bound to use precaution, and has a right to say he has taken no title, and therefore is not bound by 10tice. I do not see that he would be justified in making inquiry, though there is, of course, considerable difficulty in saying how far constructive notice should extend. In this case I have, after great anxiety, come to the conclusion, that it is within the line drawn in Jos Smith, since though a person is not bound by an instrument which he is told does not concern him, and which he is not entitled to, and does not lie in his path, yet at the same time if he is told that anything affects him, though he be not told correctly, he is bound to inform himself of the whole. After referring to the case of Jackson v. Rowe, Vice-Chancellor Wigram says, with reference to that case, more nearly bearing on this, of Taylor v. Baker (5 Price, 306), "It is unnecessary to go out of the language of the judgment of the Lord Chief Baron. A party at the time of making his par chase, and before it was made, had actual notice that one Strong had a judgment or warrant of attorney which affected the purchased estate. Strong, in fact had a mortgage, and not a judgment, and the Cou most correctly held, that the purchaser, having noti that Strong had an interest affecting the premis could not ward off the claim of the incumbrance. only because the nature of the claim was differ from that which the notice conveyed to him." If s person is told that anything affects the property, la cannot rely on what is told him, but he is bound ** ascertain the exact truth. Then, in this case, let us take the defendant's o statement. He admits that he was dealing with a agent, and not with the principal; and his own & count is-" Robinson asked me what I intended to the said house for. I told him that I wished to cas on the business of a provision dealer in it. He the said his orders were not to let it for a butcher's shy but that I could carry on any other business in the said house that I chose." Therefore, if those were t words used, the defendant was informed that the agent could not let it as a butcher's shop; and, cording to Taylor v. Baker, he ought to have seen the principal. He was dealing with an agent with limited authority, and he ought not to have been satisfe with what he told him. If he had made inquiry of the principal, she would have told him that the ba could not be let for the selling of beer. I have sumed, so far, that the statement of the defendant a fair account of what passed, but I doubt whether is accurate. The evidence differs as to the exact words used, and the auctioneer says the defendant told h he was going to use it for a baker's, and he talked of provisions; and therefore he said that the defendant |