the vestry can get everything they want for the purpose of widening Church-street and carrying out the improvements they contemplate, and the owners of the orphanage say they are willing that they should get it, in the way that the Act says they may get it, by giving notice to take, not the whole, but part of the house. Coming then to the best conclusion I can arrive at from the authorities which have been cited before me upon the construction of this very awkward section, I must grant an injunction restraining the vestry from acting upon the notice they have given in its present form, and from taking more than the part of the house which they require for the purpose of widening the street, and making the improvements they are about to make; the owners of the orphanage being willing to sell them that part, and not requiring them to take the whole. I must put that in, for I do not mean to decide that in any case hereafter, if the owners of the property should require the vestry to take the whole, the vestry would not be bound to do so. I express no opinion now of any sort or description.

Some discussion followed as to the form of the order, in the course of which his Lordship said :-I think, if the vestry were going to take so much of these buildings that what was left would be a mere wall or a staircase, and one or two kitchens, it would be unreasonable for them not to take the whole, or for the owners to make them pay for all damage by severance. As I understand the matter from the plans before me, a very substantial part of the house, or the larger part of it, will still be left. All that will be cut off from it, according to the evidence before me, will be a part of the house which the trustees say can be replaced, or at all events be reinstated in such a way as to enable them to use the other parts of the buildings as perfectly as they use them now. Therefore I think the vestry ought only to take that part which they actually want, the owners of the orphanage being willing to sell it.

Solicitors for plaintiffs, Blount, Lynch, and Petre.

Solicitors for defendants, Pontifex, Hewitt, and

Pitt.

QUEEN'S BENCH DIVISION. Saturday, March 14, 1885. (Before MATHEW and SMITH, JJ.)

LLOYD v. LLOYD. (a)

Game-Poaching-Act for Prevention of (25 & 26 Vict. c. 114), s. 2-Person seen by constable with rabbits in possession on highway-Flight of accused and pursuit by constable-Search of accused and seizure of rabbits 200 yards from highway-Accused and rabbits never out of constable's sight-Information and conviction under sect. 2-Validity of.

Where a constable sees a man on a highway having rabbits in his possession which the constable has good cause to suspect have been unlawfully searched for or pursued by such man, who, on catching sight of the constable, runs away across an adjoining field, and on being pursued by the constable throws down the rabbits in the field some 200 yards from the highway, and neither the man nor the rabbits have been lost sight of by the constable, the latter may then and there search (a) Reported by HENRY LEIGH, Esq., Barrister-at-Law. MAG. CAS.-VOL. XIII.

[Q.B. DIV.

the man and seize the rabbits under sect. 2 of the Poaching Prevention Act (25 & 26 Vict. c. 114), and a conviction of the man under that section before justices is good and will be upheld. So held by Mathew and Smith, JJ., distinguishing the cases of Clarke v. Crowder (L. Rep. 1 C. P. 638; 38 L. J. 118, M. C.) and Turner v. Morgan (33 L. T. Rep. N. S. 173; 44 L. J. 161, M.C.; L. Rep. 10 C. P. 587).

IN this case an information was laid by the respondent, a police constable, before justices in petty session, against the appellant, under sect. 2 of the 25 & 26 Vict. c. 114, under the following circumstances:

Between five and six o'clock in the morning of the 20th Sept. 1884, as the respondent was standing on the highway at Burghley, he saw the appellant and two other men, all of whom he had good cause to suspect of coming from land where they had been unlawfully in search of game. One of the men had a bag slung over his shoulder, apparently containing rabbits. Upon catching sight of the constable the defendant (appellant) ran away across some fields, and the constable (the respondent) instantly followed in pursuit of him. Upon finding that he was being chased the appellant threw down the rabbits on the ground about 200 yards from the highway, but the constable did not lose sight of either the appellant or the rabbits from the first moment of seeing them on the highway till their seizure in the field about 200 yards off.

Before the justices it was contended for the appellant, that the appellant could not be convicted, inasmuch as the rabbits had not been actually seized on the highway, as it was required that they should have been to bring the appellant within the penal clause of the Act; but the justices were of opinion that the seizure was good within the terms of the statute, which (sect. 2) enacts that "it shall be lawful for any constable in any county borough, or place in Great Britain, in any highway, street, or public place, to search any person whom he may have good cause to suspect of coming from any land where he shall have been unlawfully in search or pursuit of game and having in his possession any game unlawfully obtained and should there be found any game as aforesaid upon such person, to seize and detain such game and such constable shall in such case apply to some justice of the peace for a summons to such person to appear before two justices in petty sessions, as provided by the 18 & 19 Vict. c. 106, s. 9;" and on conviction of the offence charged, the offender is to forfeit any sum not exceeding 51., &c.

The justices accordingly convicted the appellant, who thereupon appealed to the Queen's Bench Division of the High Court of Justice, and the cause now came on for argument accordingly.

Anderson for the appellant.-The justices were in error in convicting the appellant, who ought to have been discharged by them, and the summons and information dismissed. It is necessary under the statute that the game should be seized on the highway, which was not done in this case; and for that proposition, in addition to the terms of the Act itself, the cases of Clarke v. Crowder (L. Rep. 4 C. P. 638; 38 L. J. 118, Mag. Cas.) and

4 R

Q.B. Div.]

Turner v. Morgan (33 L. T. Rep. N. S. 172; 44 L. J. 161, Mag. Cas.; L. Rep. 10 C. P. 587), are authorities.

W. R. Smith, for the respondent, contra.-The justices put the proper construction, and the only reasonable one, upon the 2nd section of the Act; for, if that is not so, and their decision be held to be wrong, it will follow that, upon a poacher laden with game, unlawfully procured, being met on the highway by a police constable, he will only have to step aside a yard or two off the highway, and so be enabled to defy the constable and the Act of Parliament together.

MATHEW, J.-I am of opinion that the justices took a correct view of the statute and of the facts of this case, and that the conviction of the appellant must be confirmed. The facts are, that the appellant was seen by the respondent, the police constable, on a public highway, in company with two other men, between five and six o'clock in the morning of the 20th Sept. last. The appellant was carrying a quantity of rabbits in a bag across his shoulders. Upon catching sight of the constable he started off and ran across a field, instantly and closely pursued and followed by the constable, by whom he was caught and stopped in the field, and the rabbits were found close by in the same field, on the spot where the constable saw the appellant throw down the bag containing them, and that spot being about 200 yards from the highway where he was first seen; the constable never having lost sight of him or the bag of rabbits from the time when he first saw him on the highway to the moment of his stopping him in the field. The Act of Parliament in question (25 & 26 Vict. c. 114), by sect. 2, enacts as follows: [His Lordship read the section as above set forth, and then proceeded:] Unless, therefore, the appellant was searched on the highway, and the game was also seized there, the justices would have no jurisdiction in the matter. The statute directs that the person stopped by the constable shall be searched on the highway, and that the game which may be found upon him shall be seized and detained by the constable. It is evident that it is intended that the search, seizure, and detention are to take place then and there, but it surely cannot be intended that the whole of these proceedings must necessarily take place upon and within the narrow limit of the highway itself; for, if it were, a poacher could easily evade the statute by throwing the game over a fence into an adjoining field. The cases cited by Mr. Anderson for the appellant are clearly distinguishable. In neither of them did the seizure take place at the same time as the search. In one of them, Turner v. Morgan (ubi sup.), no search had taken place; and in the other case, Clarke v. Crowder (ubi sup.), something had been seen, but the suspected man was not searched, and so the statute was not complied with. In the present case both the man and the game were seen by the constable on the highway, and neither the game nor the man was lost sight of until he was stopped close to the highway. The proposition put forward on behalf of the appellant, that the game should be taken from the poacher on the highway, is not supportable.

SMITH, J.-But for the two cases which have been cited before us on the appellant's part, I

[CT. OF APP.

should have had not the slightest doubt on the point that has been raised here. The Act of Parliament was passed for the purpose of preventing game that had been poached being carried into towns in the early morning. Sect. 2 of the Act says, "And should there be found any game as aforesaid such upon to seize and detain person, such game," &c. It would not be enough to search and let the person go, and to detain the game afterwards. In the case of Hall v. Knox (9 L. T. Rep. N. S. 380; 4 B. & S. 515; 33 L. J. 1, Mag. Cas.) it has been already decided that if the police constable sees rabbits fastened round the poacher's neck, that fact constitutes a sufficient search by the constable. Here the constable, in hot pursuit, stopped the man, and seized and detained the game, having never lost sight of either game or poacher from the time when he first saw them on the highway.

A joint-stock company having been formed for the purpose of raising capital to make a certain road, A., for value, by deed conveyed a piece of land in fee as a part of the site of the road to the trustees of a contemporaneous deed of settlement for the benefit of the company, which contained provisions for making and maintaining the road. In the conveyance the trustees covenanted with A., his heirs and assigns, that they, the trustees, their heirs, and assigns, would make the road and at all times keep it in repair, and allow the public to use it, subject to the payment of such tolls as the trustees might from time to time determine. The trustees duly made the road, and A. afterwards sold to B. certain land adjoining the land conveyed to the trustees, and the trustees sold the road to the corporation of the town in which it was situated, both parties taking with notice of the covenant to repair.

Held (affirming the decision of the Vice-Chancellor of the Duchy of Lancaster), that the covenant did not run with the land, either at law or in equity; that Tulk v. Moxhay (2 Ph. 774) did not apply to covenants of this description, but only to restrictive covenants; and therefore B. could not enforce the covenant against the corporation.

(a) Reported by W. C. Biss, Esq., Barrister-at-Law.

CT. OF APP.]

[CT. OF APP.

Morland v. Cooke (18 L. T. Rep. N. S. 496;

L. Rep. 6 Eq. 252) explained. Holmes v. Buckley (1 Eq. Cas. Abr. 27) discussed. Certain persons who had formed themselves into a joint-stock company for the purpose of making a road, declared by deed that it should not only be enjoyed by them "for their individual purposes, but should be open to the use of the public at large for all manner of purposes in all respects as a common turnpike road," subject to the payment of such tolls as might from time to time be demanded.

Held, that the road was not dedicated to the public, and was not a highway repairable by the inhabi tants at large under sect. 150 of the Public Health Act 1875.

Semble, there cannot be a dedication to the public by an individual of a road as a highway subject to a toll without the authority of the Crown or an Act of Parliament.

IN the year 1837 the highway leading from Higginshaw to Lower Moor, in the borough of Oldham, being very circuitous, it was proposed that the owners of the property adjacent to it should construct a shorter and more direct road between those places, that they should sell the necessary strips of land for sums of money which were agreed upon, amounting to 1737. 198. 10d., and that the road should be constructed and maintained by an association or company of proprietors who were to be represented by

trustees.

On the 3rd March 1837 a deed of settlement was executed to carry out this arrangement. The parties were Joshua Milne, John Milne, and Samuel Lees of the first part, James Milne and John Travis of the second part; the said James Milne and various other persons whose names and scals were comprised on the second schedule thereto, together with the other persons who should from time to time execute the deed, and whose names and seals should be comprised in the third schedule thereto, of the third part. It recited that the making of the proposed new road would be of great public advantage; that the several parties thereto, being willing at their own expense to carry out the undertaking, had agreed to form amongst themselves a joint-stock company, under the style of the Higginshaw and Lower Moor Road Company, and to raise capital for the purchase of land for the formation of the road and making and maintaining the same; that it had been agreed that the said Joshua Milne, John Milne, and Samuel Lees should be the trustees in whose names the land necessary for the road should be purchased, and that the road when completed should not only be appropriated, used, and enjoyed by the parties thereto "for their individual purposes, but (subject as thereinafter mentioned) should be open to the use of the public at large for all manner of purposes in all respects as a common turnpike road;" that contracts had been entered into by or on behalf of the said company for the purchase of the necessary lands for a total sum of 1737. 19s. 10d., and proper conveyances had been prepared and were awaiting execution for vesting such lands in the said Joshua Milne, John Milne, and Samuel Lees, who were to stand possessed thereof upon

business of the said company should be carried on subject to the provisions thereinafter contained. It was then witnessed and agreed that the said Joshua Milne, John Milne, and Samuel Lees, and the survivor and survivors of them and the heirs of such survivor, should for ever thereafter stand possessed of the lands intended to be granted to them upon the trusts thereinafter declared. And it was further witnessed and agreed that the said parties thereto and all other persons who should thereafter become proprietors as thereinafter mentioned, should, whilst holding shares in the capital of the said company, be, and they were thereby united into a company for making and maintaining the said road, and should be and continue the proprietors thereof under the name of The that for the purpose of making and maintaining Higginshaw and Lower Moor Road Company; the road and other general purposes attending the same a capital of 16007. should be raised in 32 shares of 501. each; that the number of shares held by each person should be written opposite his or her names at the time of his or her executing the deed; that the said 173l. 19s. 10d. should be paid out of the capital of the company for the purchase of the land necessary for the road as aforesaid, and that the remainder of the money to be received by the said company, whether by way of capital or profits, or otherwise, should be applied by the trustees in paying the costs of the present deed, of the conveyances, and of the establishment of the said company, and that the remainder of the capital should be applied in making and afterwards maintaining in repair the said road pursuant to the specification, ground plan, and cross section contained in a schedule of even date, and in setting up the necessary toll-gates. The line of the road was then described, and provisions were made for the erection of tables of tolls to be fixed from time to time by a majority in value of the company at a meeting for the purpose; that no person or persons (except such person, and for the purposes only as are mentioned in the said several conveyances of the said land so purchased by the company as aforesaid), shall be allowed to travel upon, use, or enjoy any part of the said road, or pass through any such toll-gate, side-bar, or chain, to be erected or set up as aforesaid, without having previously paid such toll as may from time to time be demanded of him, her, or them pursuant to the table of tolls for the time being authorised by the said company to be demanded and taken as aforesaid;" for payment of tolls by the parties to the deed; that the trustees should apply the tolls in payment of the current expenses of the company, and in repairing and keeping in repair the said road,” and in discharge of the principal and interest of any moneys borrowed on the security of the tolls, and then in payment of the dividends declared to the proprietors of the company. Then followed various provisions as to meeting, rights of voting, the keeping of the company's books, calls on and forfeiture of shares, declaration of dividends, the appointment of new trustees by the shareholders, variation or modification of any clauses in the deed, and enrolment of this or any future deed of settlement by the trustees if deemed expedient.

66

66

The schedule of even date referred to in this

CT. OF APP.]

deed was signed by the parties to the deed and the owners of the land which was to be conveyed as the site of the road. It contained a specification describing the construction of the road, and there was a plan showing its exact position and the land through which it was to run, with the owners' names. Amongst these names was that of John Elliott, the plaintiff's predecessor in title, and it appeared that he owned the land on both sides of the road.

By an indenture, dated the 3rd April 1837, John Elliott conveyed his piece of land to the trustees. The parties were Elliott of the one part, and the said Joshua Milne, John Milne, and Samuel Lees of the other part; and in consideration of the sum of 14l. 11s. 8d. paid to him by the said Joshua Milne, John Milne, and Samuel Lees, Elliott granted and released unto the said Joshua Milne, John Milne, and Samuel Lees, their heirs and assigns, the plot of land therein described, being part of certain lands belonging to Elliott, called Higher Moor Field, and which said plot of land was therein expressed to be intended to form part of the said intended road from Higginshaw to Lower Moor, together with liberty to enter upon the adjoining lands of Elliott for making and completing the said road, and to erect on the said plot of land toll-gates, and demand and take the tolls mentioned in any table of tolls put up at any such toll-gate before any horse, beast, cattle, cart, waggon, or carriage (except as thereinafter mentioned), should be permitted to pass through such toll-gate, and except for mines and minerals," and also except such rights and privileges of passing toll free over the said line of road for certain purposes, as is hereinafter mentioned and expressed." To hold the said plot of land, liberties, powers and privileges unto and to the use of the said Joshua Milne, John Milne, and Samuel Lees, their heirs and assigns for ever, for the ends, intents, and purposes therein in that behalf expressed and declared of and concerning the

same:

Provided always, and it is hereby agreed and declared by the said parties to these presents, and each of them the said Joshua Milne, John Milne, and Samuel Lees, for himself severally and respectively, and to and for his several and respective heirs and assigns, doth covenant and agree with the said John Elliott, his heirs and assigns, by these presents in manner following (that is to say), that they, the said Joshua Milne, John Milne, and Samuel Lees, their heirs or assigns, or some or one of them shall, and will within the space of three years now next ensuing, at their or his own costs and charges, convert, make, and form, and fence off, in a good, workmanlike, and proper manner, the whole of the said plot of land, hereditaments, and premises hereby granted and released, into a road or way to form part of the said line of road from Higginshaw to Lower Moor aforesaid, and in like manner make and form the remainder of the said line of road, which, when so finished, shall be of the length, width, dimensions, and construction, and made of such stone and other materials, and in such manner as is set forth and expressed, and as drawn and laid down or delineated in the specification ground plan and cross section contained in a certain schedule or writing bearing date the 3rd day of March last past, and since the date and execution hereof signed by the said several persons, parties to these presents, and by several other persons, owners of other lands over which the said intended line extends; and also that the said line shall, from and immediately after the expiration of the said term of three years (subject nevertheless to such tolls for horses, cattle, beasts, carts, and carriages, passing thereon as may by the said Joshua Milne, John Milne, and Samuel Lees, their heirs, and assigns, be fixed and determined upon) be used by the public; and shall and

[CT. OF APP.

will for ever hereafter be kept open and used as and for a road for the use of the public (subject as aforesaid); and also that they, the said Joshua Milne, John Milne, and Samuel Lees, their heirs and assigns, shall and will from time to time, and at all times hereafter, keep and maintain the said road, and every part thereof, in good repair, order, and condition, except such part thereof as hereinafter is mentioned.

It was then provided that no toll should be demanded or taken from Elliott, his heirs or assigns, lessees, tenants, or occupiers, for any horse, beast, cattle, or carriage laden with materials for repairing the fences or drains thereinafter covenanted to be kept in repair and maintained by Elliott, his heirs or assigns, or his or their tenants or occupiers of the lands adjoining the said plot of land thereby granted, nor for any horse, &c., or carriages passing over the said line of road for any purpose connected with the occupation of the said lands called Higher Moor Field for farming or agricultural purposes only or relating to the cultivation thereof. And Elliott covenanted that he, nis heirs or assigns, or the tenants or occupiers of the lands adjoining the said plot of land thereby granted would at all times keep in repair and maintain the fences and ditches on each side of so much of the said road as passed over the lands belonging to Elliott, and also keep the drains thereof in repair.

Elliott was not a member of the company and never executed the trust deed. In May 1837 the other landowners executed similar conveyances of the land belonging to them which was required for the new road. At this time the land through which the road passed had been and was used for agricultural purposes.

The trustees took possession of the land conveyed to them, and the road was duly made and called Shaw-road. Tolls were charged upon traffic passing over the roadway, but it was free to foot passengers, and the trustees for the time being maintained the road out of the tolls until it was purchased by the corporation of Oldham.

The

After the completion of the road Elliott and the other owners of the land adjoining it from time to time erected houses abutting on it, until the road lost its agricultural character and became absorbed in the town of Oldham. plaintiff had subsequently purchased Elliott's land, and alleged that the money had been expended in building these houses on the faith of the covenants in the above mentioned conveyance, and the provisions of the trust deed with the full knowledge and acquiescence of the persons for the time being entitled to Shaw-road, such persons being the predecessors in title of the defendants, the corporation of Oldham; and that the access afforded by Shaw-road was essential to the proper use and enjoyment of the houses.

In 1865 the Oldham Borough Improvement Act (28 & 29 Vict: c. cccxi.) was passed, sect. 27 of which contained the following provisions "with respect to the road or street called Shawroad." That the corporation might purchase and take all private rights of way and other rights in, over, or affecting the said road or street, and all rights of levying tolls in respect of traffic thereon, and the interests of all persons in any tolls so levied. That for the purposes of such purchase and taking, all the rights and interests aforesaid should be deemed to be lands within the meaning of the Act and any Act incorporated therewith.

CT. OF APP.]

That on the completion of such purchase and taking all the rights and interests aforesaid should be absolutely extinguished, and the corporation should remove all gates, bars, &c., and thenceforth the said road or street should be and continue a street open to the passage of the public, and should be subject to all the provisions relative to the sewering, draining, levelling, and paving, or otherwise completing streets not being highways repairable by the inhabitants at large. That the powers of compulsory purchase conferred on the corporation by this section should not be exercised after the expiration of five years after the commencement of the Act, and that nothing in the Act should empower the corporation to purchase or take any estate or interest in the soil of the said road or street.

By an indenture, dated the 21st April 1884, in consideration of 5801., Elliott conveyed to J. T. Austerberry, the present plaintiff, in fee simple the lands called Higher Moor Fold, and all other the lands of him, Elliott, adjoining Shaw-road, together with the houses and buildings thereon, and the appurtenances. The plaintiff had notice of the conveyances relating to Shaw-road, and alleged in his evidence that the fact that it was the duty of the trustees to keep the road in repair materially influenced him in making the purchase. The plaintiff afterwards built several houses on the property, and paid the usual tolls when using the road.

Shaw-road was kept in repair by the trustees until the passing of the Oldham Improvement Act 1880 (43 & 44 Vict. c. cxlvii.) That Act referred to sect. 27 of the Act of 1865, and recited that the corporation had not exercised their powers under that section within the time limited by that Act, and that a transfer of Shawroad to them without compulsion had been agreed on for the sum of 6000l. By sect. 62 it was provided that

Nothing contained in the Act of 1865, or in this Act, shall exclude, limit, or affect the right of the corporation to exercise the powers conferred upon them by sect. 150 of the Public Health Act 1875, as regards the road or street within the borough called Shaw-road.

Sect. 63 provided that with respect to Shawroad the following provisions should take effect, namely:

(1.) On the corporation paying J. M. Cheetham, William Taylor, and C. E. Lees [the then trustees of the deed of settlement, and the defendants in the present action] or two of them, or to the survivor of them, out of the borough fund or borough rate, or out of moneys which the corporation are by this Act authorised to borrow for the purpose, the consideration money aforesaid; and on a copy of this Act being produced to the Commissioners of Inland Revenue, stamped with such an ad valorem stamp as would be required by law to be impressed on a deed of conveyance of Shaw-road by them or him to the corporation, then, and in that case, but not sooner or otherwise, all the rights, interests, property, and things comprised in sect. 27 of the Act of 1865, as subsisting at the time of the vesting thereof under this section, and the soil of Shaw-road shall by virtue of this section vest absolutely in the corporation and their successors, for all the estate and interest therein of Joshua Milne Cheetham, William Taylor, and Charles Edward Lees, and each of them, their and each of their heirs, executors, and administrators, and of all persons and bodies claiming through or under them.

(2.) The receipt of the said trustees for the consideration money paid to be a good discharge.

(3.) The persons to whom payment is so made shall hold the money received by them, subject to payment

[CT. OF APP.

and discharge of all debts and liabilities (if any) properly payable thereout, or chargeable thereon, in trust for such persons as are at the time of payment beneficially interested in Shaw-road, and according to the proportions or respective amounts of the interests of those persons.

(4.) On the vesting aforesaid taking effect, all rights and levying tolls in respect of traffic on Shaw-road, and the interests of all persons in any tolls so levied, shall be by virtue of this section absolutely extinguished.

In Nov. 1880 the corporation paid the 60007. referred to in the Act to the trustees, and Shawroad became absolutely vested in the corporation as owners, and they then removed the toll-gates, and no further tolls were levied.

In 1881 the corporation, acting under the powers conferred by sect. 150 of the Public Health Act 1875, caused notices to be served on Austerberry and the other owners and occupiers of premises fronting on Shaw-road, requiring them to sewer, level, flag, channel, pave, and complete the road within a specified time. The plaintiff and the other owners failed to comply with the notices, and the corporation then did the work themselves, and summoned the owners before the justices to recover the expenses which had been apportioned on the several frontages. Orders were made for payment of the various sums, but pending an appeal, no further steps had been taken to enforce the orders.

On the 4th July 1883 the corporation duly declared Shaw-road a public highway, pursuant to sect. 152 of the Public Health Act 1875, by which it is provided that, upon such declaration being made with regard to any "street,' the same shall become a highway repairable by the inhabitants at large."

99.66

The plaintiff resisted the claim of the corporation, on the ground that he and the other persons served with the notices had no such interest in Shaw-road as to render them liable under the Public Health Act 1875, or otherwise, for the work done by the corporation; that Shaw-road was not a street" within the meaning of that Act, but it was and always had been a road repairable by the owners thereof, and that the corporation, on behalf of the ratepayers or inhabitants at large, having become the owners, the road thereupon became "a highway repairable by the inhabitants at large;" that the corporation, having purchased the road with notice of and subject to the provisions of the trust deed and the conveyances to the trustees, were estopped from making any claim against the plaintiff and other adjoining owners on account of any expenses incurred in relation to the road and necessary for the maintenance thereof, and thus evading their liability as assigns of the grantees under the conveyances and trust deed, or in respect of covenants running with the land purchased by the corporation. The plaintiff also contended, in the alternative, that if the corporation were entitled to be repaid their expenditure, or any part thereof, as being necessary for the maintenance of Shaw-road in good repair, such right constituted a "liability " within the meaning of the provisions of sect. 63, subsect. 3 of the Oldham Improvement Act 1880, and that such expenditure was properly payable out of the purchase moneys in the hands of the trustees, and that the plaintiff and the other adjoining owners were entitled to have such purchase moneys, or a sufficient part thereof,