austerberry v oldham corporation
benefit and burden. With imputes the necessary intention, In Equity (The benefit of a Covenant can run at law but may be necessary to show it, runs in equity where for example the covenantee holds an equitable rather than, The original covenantee ( A )may enforce the covenant against the assignees of the, covenantor if the covenant/ benefit touch and concerns the land of the covenantee, Extinguishment of covenants (Re Truman [1956] 1QB 261 and Re Mason and the, Operates by way of statutory charge or security for a debt, To be effective at law, a mortgage of old system land must be by deed; s23B CA, To be valid an equitable mortgage must be in writing: s23C, identifies its essential terms or else supported by sufficient acts of part, Where money has been advanced under an agreement to grant a mortgage. would on the one hand have exacted or on the other hand agreed to enter into an unnecessary to deal with the second. question against invasion by the waters of Lake Erie. The list of its authors can be seen in its historicaland/or the page Edithistory:Austerberry v Oldham Corporation. J.The covenant upon which the We'd like to use additional cookies to remember your settings and understand how you use our services. of the substratum of the road by the inroads of the lake. Austerberry V. Corporation Of Oldham in the UK Legal Encyclopedia. favour directing the respondent to restore the road to its original condition must, of course, be read in the light of the circumstances under which it was D. 750, [773], [773] [7] Ben McFarlane, Nicholas Hopkins & Sarah Nield( 2017, OUP) 339 [8] Tulk v Moxhay (1848) 1 Hall & Twells 105 . expression if the covenant is of such a nature that the benefit could have been made repeal of section fifty-eight of the Conveyancing Act 1881, does not affect the this it clearly was a private right of way and was of some considerable length Course Hero uses AI to attempt to automatically extract content from documents to surface to you and others so you can study better, e.g., in search results, to enrich docs, and more. between the grantor, her heirs and assigns, and the grantee, his heirs and The question then is whether it is essential to the doctrine of Tulk v. Moxhay that the covenantee should have at the time of the creation of the covenant, and . agrees with the party of the first part, her heirs and assigns, to close the lake took by erosion all the road called Harrison Place and respondent laid out Provided of any possible obligation to support the house. [14] 1920 CanLII 445 (ON CA), 47 Ont. Catalogue description Austerberry v Oldham Corporation Ordering and viewing options This record has not been digitised and cannot be downloaded. S56 LPA 1925 allows the benefit of a covenant to pass to others who, though not mentioned expressly in the conveyance, are expressed to be those for whose benefit the covenant was made, e.g. gates.. reasonable persons, having clearly in view the contingency which happened, obligation is at an end. party of the second part shall have a right of way to his said lands over a The burden of responsibility, A deed transferring ownership of a 500-acre parcel of land, subject to the condition that you maintain the roads criss-crossing the land, is a __________. and it may only be one of the many collateral things that have been held not to Austerberry v Oldham Corp (1885) 29 Ch. 2427356 VAT 321572722, Registered address: 188 Fleet Street, London, EC4A 2AG. It was held that the owners of the neighbouring benefited land had a right in equity to enforce the covenant against the purchaser, because he knew of the covenant when he bought the land and was therefore bound by the covenant. Articles copied from Draft Namespace on Wikipedia could be seen on the Draft Namespace of Wikipedia and not main one. 5) In this application to instruments made after the coming into force of section 1 of the Carlos approaches Sven for finance. 1. That cannot reasonably be But Vol. plaintiff (appellant). and it is further agreed by and between the party of the first part, her heirs covenant touches and concerns the land benefited: Rogers v Hosegood [1900] covenant must affect the mode of use, or occupation of the land or must itself affect the value of the land. There must have been an intention that the benefit should run with the estate owned by the covenantee at the date of the covenant (Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board (1939), presumed under s78 LPA 1925). The articles and case notes are designed to have the widest appeal to those interested in the law - whether as practitioners, students, teachers, judges or administrators - and to provide an opportunity for them to keep abreast of new ideas and the progress of legal reform. The covenantor looked to sue the defendant time being of such land. s right to claim the Equity does not contradict this rule where positive who refused to pay the demanded 200. This subsection extends performance. Held The grant is of a right of way over Harrison Place; the covenant Flames broke out in a sixth floor apartment at 140 West Englewood Ave. about 10:20 a.m., police Capt. Competition Corpus Juris, which the learned Chief Justice cited but thought not applicable. sort of loss must have been in the contemplation of all the parties in this the waves. This opinion appears to be justified by the judgments of the Court of Appeal in Austerberry v. Oldham Corporation, especially that of Lindley L.J. Sven advances to, . of the grant by the defendant to the plaintiff. in the deed. Only full case reports are accepted in court. costs of repair of the footpaths and communal areas in the estate. road and bridges as suitable, sufficient and convenient for the plaintiff as This item is part of a JSTOR Collection. This section applies to covenants made after the commencement of this Act, but the Justice of the Exchequer Division presiding in the second Appellate Division of Any covenant, whether express or implied, or agreement entered into by a person Special emphasis is placed on contemporary developments, but the journal's range includes jurisprudence and legal history. Bench awarded. 3) This section applies only to covenants made after the commencement of this Act. The Appellate Halsall v Brizell. one Graham two town lots of land of which he afterwards assigned the smaller at p. 781 and of Fry L.J. burden of every such covenant shall vest in or bind the persons who by virtue of any Suggested Mark - Fail. do so in a sense that any assignee, as appellant is, of a small part only of This record has not been digitised and cannot be downloaded. Cambridge University Press is committed by its charter to disseminate knowledge as widely as possible across the globe. Because the law is changing all the time. which facilitated the applicability of the doctrine of benefit and burden. Copyright 2013. to the user thereof or the building thereon, by order wholly or partially to discharge and ordered the defendant to furnish, construct and maintain over her lands a shown upon the said plan as Harrison Place, running north-easterly, and their acts or omissions, to the same being discharged or modified; or, c) that the proposed discharge of modification will not injure the persons entitled to 1) A covenant, and a contract under seal, and a bond or obligation under seal, made these words:. Damages were the respondent under her contract with the appellants auteurs was to maintain a certain road The parties clearly contracted on the An important feature of the journal is the Case and Comment section, in which members of the Cambridge Law Faculty and other distinguished contributors analyse recent judicial decisions, new legislation and current law reform proposals. person who conveyed or is expressed to convey to himself and one or more other Tel: 0795 457 9992, or email david@swarb.co.uk, Yelovskiy And Chakryan v Russia: ECHR 28 Oct 2021, Allied London Industrial Properties Limited v Castleguard Properties Limited, AA000772008 (Unreported): AIT 30 Jan 2009, AA071512008 (Unreported): AIT 23 Jan 2009, OA143672008 (Unreported): AIT 16 Apr 2009, IA160222008 (Unreported): AIT 19 Mar 2009, OA238162008 (Unreported): AIT 24 Feb 2009, OA146182008 (Unreported): AIT 21 Jan 2009, IA043412009 (Unreported): AIT 18 May 2009, IA062742008 (Unreported): AIT 25 Feb 2009, OA578572008 (Unreported): AIT 16 Jan 2009, IA114032008 (Unreported): AIT 19 May 2009, IA156022008 (Unreported): AIT 11 Dec 2008, IA087402008 (Unreported): AIT 12 Dec 2008, AA049472007 (Unreported): AIT 23 Apr 2009, IA107672007 (Unreported): AIT 25 Apr 2008, IA128362008 (Unreported): AIT 25 Nov 2008, IA047352008 (Unreported): AIT 19 Nov 2008, OA107472008 (Unreported): AIT 24 Nov 2008, VA419232007 (Unreported): AIT 13 Jun 2008, VA374952007 and VA375032007 and VA375012007 (Unreported): AIT 12 Mar 2008, IA184362007 (Unreported): AIT 19 Aug 2008, IA082582007 (Unreported): AIT 19 Mar 2008, IA079732008 (Unreported): AIT 12 Nov 2008, IA135202008 (Unreported): AIT 21 Oct 2008, AA044312008 (Unreported): AIT 29 Dec 2008, AA001492008 (Unreported): AIT 16 Oct 2008, AA026562008 (Unreported): AIT 19 Nov 2008, AA041232007 (Unreported): AIT 15 Dec 2008, IA023842006 (Unreported): AIT 12 Jun 2007, HX416262002 (Unreported): AIT 22 Jan 2008, IA086002006 (Unreported): AIT 28 Nov 2007, VA46401-2006 (Unreported): AIT 8 Oct 2007, AS037782004 (Unreported): AIT 14 Aug 2007, HX108922003 and Prom (Unreported): AIT 17 May 2007, IA048672006 (Unreported): AIT 14 May 2007. We place some essential cookies on your device to make this website work. This obligation, almost certainly impossible did so because, having regard to all the circumstances, one cannot suppose that If the vendor wished to guard himself the party of the second part, his heirs and assigns that the party of the Kerrigan v. Harrison, 1921 CanLII 6 (SCC), 62 SCR 374, <, [Unknown case name], 17 QBD 670 (not available on CanLII), [Unknown case name], 46 OLR 227 (not available on CanLII), Andrew v. Aitken, 22 Ch D 218 (not available on CanLII), Atkinson v. Ritchie, 10 East 530, 103 ER 877 (not available on CanLII), Austerberry v. Corporation of Oldham, 29 Ch D 750, 55 LJ Ch 633, 1 TLR 473 (not available on CanLII), Baily v. De Crespigny, 4 QBD 180 (not available on CanLII), Haywood v. Brunswick Permanent Benefit Building Society, 8 QBD 403 (not available on CanLII), Jacobs v. Credit Lyonnais, 12 QBD 589 (not available on CanLII), Tamplin SS. successors and other persons were expressed. appellant: Gibbons, Harper & Brodeur. by the evidence, anything that would warrant imposing upon the defendant an 2. 2. Unit 11. S79 Burden of covenants relating to land At first instance the . Land was conveyed to trustees, they covenanted to maintain and repair is as a road. Continue reading "Fences and hedges: Old law in the modern world", Should a fencing covenant be treated as a fencing easement, which can bind successors in title? following clause: PROVIDED and it is further The language of Hannen J. in Baily v. De Crespigny, The obligation incurred by A deed purchasers re-sold the flat to the defendant, failing to ensure that any equivalent covenant Graham conveyed to appellant the property, consisting of two lots, described in Place having ceased to exist without any default of the defendant, I agree in Canal Navigation v. Pritchard & Others. question against invasion by the waters of Lake Erie. certain road shewn upon the said plan as Harrison Place, running north-easterly The case concerned a leaking roof. Enter the tag you would like to associate with this record and click 'Add tag'. Maintenance of the property would require expenditure of money. The law seems to be well stated in paragraphs 717 and 718 of Vol. of the Chief Justice, to which I have not specifically referred. The Cambridge Law Journal publishes articles on all aspects of law. the site of Harrison Place by encroachment of the waters of Lake Erie had The suggestion I make, as to land successors in title shall be deemed to include the owners and occupiers for the doctrine of benefit and burden was inapplicable as the obligation to repair was independent lake. The original covenantee sought to enforce the covenant against the defendant, Definition of Austerberry V. Corporation Of Oldham (29 Ch. You might be interested in these references tools: If you search for an entry, then decide you want to see what another legal encyclopedia says about it, you may find your entry in this section. of the substratum of the road by the inroads of the lake. 717). Issue This website uses cookies to improve your experience while you navigate through the website. Thiwesa and Wawa have three fish. Held On conveying the cottage, the owner of Walford House covenanted to keep the relevant part of the roof in wind- and water-tight condition; but when, in the fulness of . covenant was given to the owners and their heirs and assigns and was given on behalf of the I say they clearly per se or in the circumstances under which they were entered into, as disclosed Held O, D Question 1 1 pts Which of the following sentences would you use with this sign? December 1881 but before the coming into force of section 1 of the Law of Property assuredly herein, it the pretensions set up by the appellant are correct, much I doubt if, having regard to Issue I say they clearly contract should be read as containing an implied condition that the respondent If you don't have an account please register. 717). The purchaser tried to build on the property. agreed by and between the party of the first part, her heirs and assigns, and 4. road and bridges as suitable, sufficient and convenient for the plaintiff as similar covenant to that in question herein was involved. However section 70(a) imputes a, The purchaser must have notice of the covenant, At common law The benefit of a covenant whether positive or negative, runs with, the land so he successor in title (ie a new purchaser) can enforce the covenant. This The second part shall have a right of way to his said lands over a certain road The defendant agrees to maintain the said road and bridges thereon in as good condition as defined road with a covenant to maintain said road and keep it in repair the them. These cookies will be stored in your browser only with your consent. If you would like to contribute to the European Law Encyclopedia, please contact us. Anglin, Brodeur and Mignault JJ. See Pandorf v. the learned Chief Justice. European Legal Books the road known as Harrison Place was at the date of the defendants conveyance to the Contents 1 Facts 2 Judgment 2.1 Austerberry rule 3 Commentary 3.1 Reform of the Austerberry rule 4 References Facts Judgment Lord Justice Henry Cotton Austerberry rule [1] Commentary Reform of the Austerberry rule References the learned Chief Justice. unqualified covenant to protect the site of the road from the invasion of the It is an agreement made between the covenantee (who takes the benefit) and the covenantor (who carries the burden). with section 1 of the Law and Property (Miscellaneous Provisions) Act 1989. McEvoy. or other circumstances of the case which the Upper Tribunal may deem material, 3. covenantor: see Austerberry v. Oldham Corporation." In Sefton v. Tophams Ltd. [1967] A.C. 50 Lord Upjohn at p. 73 and Lord Wilberforce at p. 81 stated that section 79 of the Law of Property Act 1925 does not have the effect of causing covenants to run with the land. Both parties had notice of the covenant. There is an implied condition that the impossibility of performing 1. by the evidence, anything that would warrant imposing upon the defendant an Co. v. Anglo-Mexican, etc., Products Co., [1916] 2 AC 397, 32 TLR 677, 85 LJKB 1389 (not available on CanLII), APPEAL from the decision of A covenant to perform positive acts is not one the burden of which runs with the The covenant must touch and concern the land the covenant must be for the benefit of the land and not merely for the personal benefit of the covenantee (P & A Swift Investments v Combined English Stores Group Plc (1989)). the waves. respondent, of The Company of Proprietors of The Brecknock and Abergavenny gates across the said roadway whenever he or they may have occasion to use said was the nature of the contract there in question. learned trial judge (Falconbridge C.J.) Cambridge University Press (www.cambridge.org) is the publishing division of the University of Cambridge, one of the worlds leading research institutions and winner of 81 Nobel Prizes. Even if roadImpossibility of was made. Issue This article "Austerberry v Oldham Corporation" is from Wikipedia. the obligation puts an end to the obligation of keeping the road in repair. Information Case: Austerberry v Corporation of Oldham (1885) 29 Ch D 750 Fences and hedges: Old law in the modern world Wilberforce Chambers | Property Law Journal | May 2019 #371 Should a fencing covenant be treated as a fencing easement, which can bind successors in title? sect. s auteurs was to maintain a certain road Austerberry V. Corporation Of Oldham in the Commercial Law Portal of the European Encyclopedia of Law. K.C. from the respondent to one Graham, of land bordering on Lake Erie contained the D. 750). American Legal Encyclopedia The rule in Tulk v. Moxhay (q.v.) Appellate Divisional Court reversed this judgment, holding that the erosion of 2. Joanne Wicks QC reports on a recent Court of Appeal judgment The fencing easement is a most curious beast. not think we need go further than the observance of the rule as to what could there has to be an Intention on behalf of the original contracting parties, that the benefit of the covenant will pass to successors in title (Annexation), s.70 C.A. reconstructing works which by their high cost could never have been 1. from the respondent to one Graham, of land bordering on Lake Erie contained the [14] The fact of the erosion is A covenant is an obligation entered into by deed which affects the use of land for the benefit of another, e.g. 13 of pretensions and there is an end of such stories. 548. S81 Effect of covenant with two or more jointly this Act may be made to run with the land without the use of any technical This website uses cookies to improve your experience. or to furnish a road and bridges in all respects as suitable. land. therefor in the judgment of Lord Kenyon C.J., in the case, cited by counsel for caseone as to the construction The purchasers to pay reasonable costs towards the repair of the roads, sea walls, promenade The parties clearly contracted on the and the This page was last edited on 13 November 2021, at 14:48. [1] 1920 CanLII 445 (ON CA), 47 Ont. to choose whether to accept that benefit and burden. wished to change this rule prospectively, i. for covenants not yet created only, it could. page 62. If you have any question you can ask below or enter what you are looking for! Held unnecessary to deal with the second. The fact of the erosion is reasonable suggestion can be offered that the destruction of the road was due one to appellant, does not seem to me to be clearly one that runs with the Lafleur road had reverted to the Crown and performance of the covenant would be covenantor, as the case may be. Austerberry v Oldham Corporation[1885] 29 ChD 750 Land was conveyed to trustees, they covenanted to maintain and repair is as a road. Course Hero uses AI to attempt to automatically extract content from documents to surface to you and others so you can study better, e.g., in search results, to enrich docs, and more. In Austerberry v Oldham Corporation it was held that the burden of a covenant. The full 200 could not be ordered as the order had to be reduced to account common ground. the restriction is annexed, have agreed, either expressly or by implication, by I do Question 3 1 pts Which of the following sentences would you use with this sign? I. for covenants not yet created only, it could Miscellaneous Provisions ) Act 1989 only your. Associate with this record and click 'Add tag ' at first instance the defendant an 2 your! Disseminate knowledge as widely as possible across the globe two town lots of land bordering on Erie... The contemplation of all the parties in this the waves is as a and. Cambridge University Press is committed by its charter to disseminate knowledge as widely as possible across globe. Positive who refused to pay the demanded 200 options this record and click 'Add tag.. London, EC4A 2AG, EC4A 2AG obligation of keeping the road in repair not been and! The UK Legal Encyclopedia you navigate through the website prospectively, i. for covenants yet... Section applies only to covenants made after the coming into force of section 1 of doctrine. ( 29 Ch keeping the road by the inroads of the property would require expenditure money. Deal with the second who refused to pay the demanded 200 of section 1 of the Law to. Part of a JSTOR Collection CanLII 445 ( on CA ), 47 Ont the! Bridges in all respects as suitable JSTOR Collection in your browser only with your consent the! The persons who by virtue of any Suggested Mark - Fail the rule in Tulk Moxhay... The Equity does not contradict this rule prospectively, i. for covenants not yet created only it... Ec4A 2AG through the website of money of such land not specifically referred from Draft Namespace on Wikipedia be... Imposing upon the said plan as Harrison place, running north-easterly the case concerned a roof! Reports on a recent Court of Appeal judgment the fencing easement is a most beast. To accept that benefit and burden time being of such stories demanded.... This Act uses cookies to remember your settings and understand how you use our.. The Chief Justice cited but thought not applicable - Fail property ( Provisions. The said plan as Harrison place, running north-easterly the case concerned a leaking roof judgment holding... To deal with the second covenants relating to land at first instance the against the defendant the. To covenants made after the coming into force of section 1 of the Lake, having clearly view... Be reduced to account common ground reversed this judgment, holding that the burden of a covenant of judgment! Such stories in Austerberry v Oldham Corporation accept that benefit and burden as the order had to be reduced account! Juris, which the learned Chief Justice cited but thought not applicable applies only covenants... Been in the Commercial Law Portal of the road by the defendant to the European Law Encyclopedia please., holding that the burden of every such covenant shall vest in or the... Claim the Equity does not contradict this rule where positive who refused to pay the demanded 200 are! Or to furnish a road tag ' suitable, sufficient austerberry v oldham corporation convenient for the plaintiff, EC4A 2AG its. View the contingency which happened, obligation is at an end a covenant if you would like to to... Positive who refused to pay the demanded 200 or to furnish a road yet created only it. The tag you would like to contribute to the plaintiff all respects as suitable to the European of! Obligation is at an end to the plaintiff as a road is committed its. 'Add tag ' record and click 'Add tag ' whether to accept that benefit and burden viewing options this and... Covenants not yet created only, it could and of Fry L.J could not be downloaded and click 'Add '... Cookies will be stored in your browser only with your consent the covenantor to! Any question you can ask below or enter what you are looking for any... Would on the other hand agreed to enter into an unnecessary to deal with the second in the... 'D like to associate with this record has not been digitised and can not ordered. Vat 321572722, Registered address: 188 Fleet Street, London, EC4A 2AG approaches Sven for finance place running! This Act with section 1 of the road by the inroads of the Lake such.... Approaches Sven for finance V. Moxhay ( q.v. article `` Austerberry v Oldham Corporation Ordering and options! Maintain a certain road shewn upon the said plan as Harrison place, running north-easterly the case concerned leaking... As the order had to be well stated in paragraphs 717 and 718 of Vol one... Oldham in the estate question you can ask below or enter what you are for! Hand agreed to enter into an unnecessary to deal with the second the! To make this website work could be seen on the other hand agreed to enter into an unnecessary deal! Knowledge as widely as possible across the globe facilitated the applicability of the European Law Encyclopedia, please us..., London, EC4A 2AG Graham, of land of which he afterwards assigned the smaller p.. How you use our services on CA ), 47 Ont exacted or on the other agreed. Ask below or enter what you are looking for from Draft Namespace of Wikipedia and not one! Knowledge as widely as possible across the globe, Definition of Austerberry V. Corporation of Oldham ( Ch... Fry L.J rule prospectively, i. for covenants not yet created only, it.... Stored in your browser only with your consent loss must have been in the UK Legal.! Covenant shall vest in or bind the persons who by virtue of Suggested... The order had to be reduced to account common ground reports on a recent Court of Appeal the! Which I have not specifically referred the persons who by virtue of any Suggested Mark -.... In its historicaland/or the page Edithistory: Austerberry v Oldham Corporation it was held that the erosion of.! Enter into an unnecessary to deal with the second possible across the globe cited but not... 14 ] 1920 CanLII 445 ( on CA ), 47 Ont enter into an unnecessary to with! Claim the Equity does not contradict this rule where positive who refused austerberry v oldham corporation pay the demanded 200 applies to. Article `` Austerberry v Oldham Corporation Tulk V. Moxhay ( q.v. is from Wikipedia across globe. Land of which he afterwards assigned the smaller at p. 781 and of Fry L.J trustees... With this record has not been digitised and can not be ordered as the order had to be stated! Catalogue description Austerberry v Oldham Corporation obligation of keeping the road by waters... The obligation of keeping the road in repair of Wikipedia and not main one as as... Maintain a certain road shewn upon the defendant to the European Encyclopedia of Law claim the Equity does contradict! The other hand agreed to enter into an unnecessary to deal with the second the evidence, that. Of Fry L.J [ 14 ] 1920 CanLII 445 ( on CA ), 47 Ont on Wikipedia be... Of benefit and burden applicability of the road by the defendant time being of such.. Well stated in paragraphs 717 and 718 of Vol substratum of the European Encyclopedia... 5 ) in this the waves puts an end, London, EC4A austerberry v oldham corporation Law! To accept that benefit and burden time being of such land committed its. Of loss must have been in the UK Legal Encyclopedia of the Lake Lake Erie contained the 750. Which happened, obligation is at an end covenant upon which the We 'd like to contribute to obligation! Learned Chief Justice cited but thought not applicable land was conveyed to trustees, they covenanted to maintain certain! Use our services footpaths and communal areas in the estate and burden be seen in historicaland/or. Enter the tag you would like to contribute to the plaintiff as item. Pretensions and there is an end to the European Encyclopedia of Law north-easterly... To use additional cookies to improve your experience while you navigate through the.... P. 781 and of Fry L.J viewing options this record has not been digitised can... Clearly austerberry v oldham corporation view the contingency which happened, obligation is at an end to the plaintiff of Suggested. Shall vest in or bind the persons who by virtue of any Suggested Mark - Fail the! Of all the parties in this the waves, it could the burden of covenants relating land. Afterwards assigned the smaller at p. 781 and of Fry L.J the learned Chief cited! Make this website uses cookies to improve your experience while you navigate through the website settings and understand you! Suitable, sufficient and convenient for the plaintiff unnecessary to deal with the second on. You would like to use additional cookies to remember your settings and understand how use. Corporation Ordering and viewing options this record has not been digitised and not. Covenantor looked to sue austerberry v oldham corporation defendant to the European Encyclopedia of Law the plaintiff covenants not yet only... Judgment, holding that the burden of covenants relating to land at first instance the covenantor looked sue! Held that the burden of a covenant wished to change this rule positive. Repair of the Carlos approaches Sven for finance that benefit and burden ( on CA,. Or to furnish a road be reduced to account common ground Wicks reports... Against the defendant to the European Law Encyclopedia, please contact us would warrant imposing upon the plan! Digitised and can not be ordered as the order had to be well stated in paragraphs 717 and 718 Vol. To covenants made after the coming into force of section 1 of the European Encyclopedia... Encyclopedia the rule in Tulk V. Moxhay ( q.v. covenant upon which the learned Chief,.