Tae Srewanns oF tHe Suaxomat Race Crup THE SHANGHAI CRICKET Chup, (On adjournment from 4th instant.) For Plaintiffs—Mr. R. E. Watyewnicur. For Defendants—Mr. W. V. Druanioxp.
Mr. Druyatoxn said he had already placed before his Lordship the greater part of the facts which bore upon the position of the defence in this case. Chere was one little matter to which he wished to refer. He found that he had made a slight error in using one word instead of another, and it might make some difference to (although it had no practical hearing upon) the correctness of the case. He was reported to have said, by the rert-—(and as it was very correctly reported had no doubt he had)—that he had made use of the words "Cricket Club" instead of 2 Cricket ground," he by this mistake, having attributed the growth of the Recreation Fund ent significance. In the first place he did not to the surplus funds of the Cricket Club. It know if his friend relied upon this bond, as it ought to have been to the Cricket ground, the was called, being a covenant running with the distinction being that the Cricket Club was land, If he did not, it was not necessary for only one of the different societies who clubbed him to say anything further upon that point. together and purchased a piece of ground for Mr, WaArsEwnichr said he alleged that it recreation purposes, and it was by the sale of this ground that the foundation of the Re-was in the nature of a covenant running with the land. creation Fund was laid.
His Lorvsmr.—You do not, I presume, Mr. Watsewricnr produced the original say that it is a covenant upon which an action subscription list, which was headed " Recrea-at law could be sustained. tion Fund," and dated 24th July, 1861.
Mr, Warsewnicnr—I beg your pardon Mr. Drusnroyp asked if this document wis your Lordship. I misunderstood my friend. in Mr. Wainewright's possession.
T do not allege that it is a covenant running Mr. Warsewntont said it was found the with the land, but an agreement binding it equity upon the holders of the land, otter day amongst some papers, where Lorpsmir.—Not so much a covenant ought not to have been. Mr. Hogg found it quite accidentally. unning with the and as an equity attaching toit. I think you may put aside all question His Lonnsnrr remarked that it had been about its being' covenant sustainable in an before him on several other occasions. action at law.
Mr. Drvsntoxp believed that otherwise Mr. Drvanioxp.—If it is not contended nearly all the facts had been set out in the that the covenant runs with the land, then, old petition which had been presented to his of course, that removes my duty of saying Lordship, with a variety of other documents anything upon it, or of alluding to a variety and affidavits. He mentioned this because of cases, which' bear upon the question of his Lordship said the facts of the case brought covenants running with the land. The case before him the other day were totally of Tulk v. Mozbay had been referred to by variance with those brought to his notice when his learned friend, and was one of his chief that former application was made. This cases, and no doubt it ran through the judg-should be cleared up to his Lordship's satisments in all the subsequent cases, It was faction, because it very much affected the very complete case in itself, and it was some-matter, if not on strictly legal, of any rate what a novel doctrine when it was tried, from other points of view. The facts he had But he contended, and proceeded to point out, foreshadowed, and what he had stated pre-that the facts of that and the present case, viously, were the basis of the defendants' though very analogous on the Hace of thea, case. Substantially there were three grounds were different, assuming that the Chinese upon which he relied; the frst being the document wasa good binding agreement. In question of the so-called bond, which affected the one case the person who bought the land the value and the exact position of the diffe-aid a less price for it in consequence of rent parties; the second, that the possess its being burdened with a restriction which of the thirty mow was entirely took away a considerable portion of its from the rest of the property. The third, value. In this case it was a grant by the letters beating upon, the agreement of the Chinese owners of a limited right in this property and nothing more. They did to be non-existent. He had prepared a list raising one supposing the, other grounds not convey the property to the Race Club, and of questions which he would read to his Lord-it appeared to him to be really a grant of an ship now, because when he came to sum up easement. He did not know whether any the evidence, he should refer to them; as precedent could be found for strictly calling they were questions which his Lordship would this an easement, but it was no doubt nearer necessarily take into consideration and answer to that than to anything else. The term was in one way or the other in coming to a judg used in the latest case in the Privy Council ment in the case, They were as follows og synonymous with a grant made in a case in 1-—Who are the parties and what juriedic-Canada, and if taken in this light that the tion has the Court in the matter?
Race Club paid $466 for the right of view ov toy Wit the Chinese document amounts perty itself. ' It might be said it was a ight the property, that was a limitation of the 3.—The purpose for which it was obtained?
Epputtonant to. the property which would 4.—30 mow of this land having been subse-have followed it into anyone's hands. Ho quently purchased by the Race Club, whether thought now he had shown the facts of the the Chinese document was not thereby merged two cases to be very different, there was no qua the 30 mow. pretence here that this land itself was parted 5.—Whether the Recreation Fund did not buy the 30 mow from the Race Club free from ability to build or to do anything else, and with, and that it was placed under the dis-
conditions, and what evidence is there of any that in consequence of this a lower rice was condition es to building in the agreement for sale by Race Club to Recreation Fund of 30 accepted fort, It, was agreed that there was a separate substantial, agreement or mow? covenant binding this Iand in the hands 6.—Whether the 30 mow does not include of the then owners, and attaching to it a large portion of the Cricket Ground, and if in the hands of any subsequent assignees so, whether it is proved that it does' not in-of the property having notice of that. restricclude the site of the Cricket Pavilion? tion, It was necessary to analyse the two 7.—Whether the 430 mow was purchased cases and see how far they accorded, and by Race Club (or Race Course Shareholders) also to see if there was any difference between or by the Recreation Fund from the Chinese them, #0 a8 to deprive the authority quoted owners of its' value. With regard to the other cases, 8.—If by the Race Club, whether the Chinese he need not object to any one of them as document was not met and whether any being unsound in law; although he need not new agreement of condition was made between far to distinguish the difference between Race Olub and Recreation Fund? them. The case Hart " Wilson clearly 9.—If by the Recreation Fund, whether shewed that it was nob a covenant running the Race Club did not know of, and agree to with the land, so that it was not necessary to the terms and conditions of the sale, and refer to it any further. After briefly ahu whether the condition as to the Tls. 125 per to another case, cited by plaintiff' counsel, mow was not the only condition and which he held to be exactly the same as 10.—Whether any agreement was made by the case Tulk v, Mozbay, and reading a part of the letters between Cricket Club and Race the judgment therein, Mr. Drummond referred Club, binding at law or in equity, and if so the Court to the question of easements as what was the consideration received by the defined in Gale on Easements, 133, and Cricket Club? in Woodfall, page 281, 9th ed., where it was more briefly expressed in the term merger, right of summing up the evidence, and he Hee presumed he should have the usual He thought he should succeed in proving that therefore did not propose to enter into it having originally purchased a small part of beforehand, but would merely refer briefly this property the Race Club subsequently to the law so far as it touched the case. The purchased the whole of it, and upon its com-authorities which had been cited by his Tearned friend were all very valuable, and ing into heir possession the right which, they previously acquired merged into the larger covered a great deal of sound Inw, no doubt estate and was at once lost. With regard to analogous to the present case, and he did not intend to impugn one of them for the the prescription, he would only refer the Court to 3, William 6th, Cap. 71, where it was statements contained in them. He would fully set out that nothing less than 20 years of only point out one or two things in regard to continual, user would establish a right by them to which he attached a somewhat ditferprescription, That was certainly not the
Text read from the printed page and cleaned; old type leaves the occasional error.