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shipper, or for the benefit of the shipper future freight; and, having done so, he only, could not be excused by reason of thought proper to reship and replace a insignificant delay not amounting to de- large part of them, and put to sea with viation, and there are many cases of rea- them in a state in which no prudent sonable delay in ports of call, for purposes or reasonable man would have shipped connected with the voyage, though not or put to sea with them, taking the risk necessary for its completion, which do not of their arriving at Glasgow just in the amount to deviation. It could not be state of beaus, so as to carry full freight for insisted upon if a deviation were involved. the shipowners, but largely deteriorated The place, the season, the extent of the by the fermentation during the transit. deterioration, the opportunity, and means We thus agree with the Court below, at hand, the interests of other persons that the duty exists in law, and that, concerned in the adventure, whom it under the circumstances, the breach of might be unfair to delay for the sake of duty is sufficiently made out in fact, and the part of the cargo in peril; in short, that the defendants, as shipowners, are all circumstances affecting risk, trouble, liable in damages. The judgment of the delay and inconvenience, must be taken Court of Queen's Bench must therefore into account. Nor ought it to be forgot- be affirmed. ten that the master is to exercise a dis

Judgment affirmed. cretionary power, and that his acts are not to be censured because of an unfortu

Attorneys-Gregory, Rowcliffes & Rawle, agents nate result, unless it can be affirmatively

for Duncan, Squarey & Co., Liverpool, for

plaintiff's ; Markby & Tarry, for defendants. made out that he has been guilty of a breach of duty. In the present case the circumstances affecting the propriety of drying the beans are not stated in detail, and a good deal is left to our general knowledge and experience. It is common knowledge that beans are a cargo which specially suffers from damp, that the effects of the damp spread and are aggravated

[IN THE EXCHEQUER CHAMBER.) from honr to hour, that such a cargo,

1871. therefore, if damp, ought to be dried, if June 14. reasonably possible, and not sent on in a 1872. state of fermentation. It must be taken Feb. 16. from the finding as to particular average, that such drying would have been a rea

Landlord and Tenant - Covenant for sonable and prudent course in the interest

Quiet Enjoyment-Sub-lessee without Notice of the shippers, and one which they would

of Restrictive Covenant. have been sure to take if they had been In a conveyance in fee of land to the deowners of the whole adventure. The fenılant he covenunted with the grantor not facts stated are all in favour of the con- to permit any part of the premises to be clusion that the beans might have been used for selling beer. The defendant afterdried during an insignificant delay, at a wards granteil a lense of part of the lund, moderate

expense, which there would with covenants by the lessee not to carry on have been no difficulty in providing from certain trules, but not mentioning that of u or upon the credit of the shippers ; and no seller of beer, and with the usual covenant circumstance is stated to shew any special by the lessor for quiet enjoyment. The terin risk, trouble, inconvenience or other ob- vous assigned to the plaintif, who having no jection. The master thought proper, as notice of the defendant's restrictive covenant he was entitled to do, to reject the offer used the premises as a beershop, and being of the shippers to take the beans out of restrained by injunction in Chancery, at his hands upon terms not unreasonable, the suit of the vendor of the fee, sued the and insisted, as he was entitled to do, defendant for breach of the express covenant upon keeping them in pledge for the for quiet enjoyment, and also for breach of


a covenant for title alleged to be implied from the terms of the lease-Held (affirming the judgment of the Court of Queen's Bench), that the covenant for quiet enjoyment excluded any implication of such an implied covenant, and that there had been no breach of the former covenant, as it did not guarantee to the tenant that he might lawfully use the land for any purpose not included in the restrictions in the lease.

Spencer v. Marriott (1 B. & C. 457; s. c. 2 Dowl. & Ry. 665) affirmed.

Appeal from the decision of the Court of Queen's Bench discharging a rule to shew cause why the verdict for the defendant should not be set aside and entered for the plaintiff.

The action was for breach of covenants in a lease, granted by the defendant to one Thomas Rawlings and his assigns, the residue of which lease became vested by divers mesne assignments in the plaintiff.

The defendant purchased the freehold of the demised premises, and the same were conveyed to him by an indenture of the 29th of April, 1861, in which he covenanted for himself and assigns amongst other things, not to permit the trade of a seller of beer, &c., to be carried on upon the land conveyed to him.

On the 14th of August, 1863, the defendant granted a lease to Rawlings and his assigns of part of the above-mentioned premises for the term of twenty-one years, at the rent of 321. The lease contained a covenant by the lessee not to use the premises for various offensive trades, but that of a seller of beer was not specified among them. On the part of the lessor there was the usual covenant for quiet enjoyment without disturbance from the lessor or anyone claiming under him. The premises, at the time of the lease, were used as a grocer's shop, but shortly before the assignment by the plaintiff were denuded of all internal fittings and unused. By different assignments the residue of the lease became vested in the plaintiff. The plaintiff at the time of the assignment had no notice or knowledge of the existence of any covenants on the defendant's part restricting the user of the premises in any manner whatever. The plaintiff after entering upon the premises expended

money in altering and fitting them up as a shop for the sale of beer by retail.

In December, 1868, Bell, the grantor of the premises to the defendant, gave notice to the plaintiff and to the defendant that the trade or business of a seller of beer should not be carried on upon the premises contrary to the covenant of the defendant in the indenture of the 29th of April, 1861. This was the first intimation the plaintiff had of the existence of any such


In January, 1869, the plaintiff was served with an injunction from Chancery restraining him from carrying on the trade of a beerhouse-keeper or seller of beer on the premises. The costs of Bell in the Chancery suit were taxed at 631. which the plaintiff had been compelled to pay. The present action was then brought, the declaration setting out the lease and assigning two breaches, one of the express covenant for quiet enjoyment, and the other of an implied covenant that the defendant had not been party to anything whereby he was prevented from letting the premises to be used as a beershop. The defendant pleaded the general issue, and at the trial a verdict was entered in his favour with leave for the plaintiff to move. A rule was granted to enter the verdict for the plaintiff, on the ground that on the facts above mentioned he was entitled to recover, and that there was evidence of the covenants both express and implied, as averred in the declaration. The rule in May, 1870, was discharged by the Court of Queen's Bench. The plaintiff now appealed.

J. Brown (Philbrick with him) (June 14, 1871), for the plaintiff.-It is conceded that the express covenant for quiet enjoyment excludes all inference of any implied covenant for title. But there has been a clear breach of this covenant by the defendant, for by covenanting on the purchase of the freehold not to allow the premises to be used as a beer-house, he subjected them by his own act to a negative easement, which in equity is binding on a lessee even without express notice Tuck v. Moxhay (1); Wilson v. Hart (2).

(1) 2 Philli. 774; s. c. 18 Law J. Rep. (N.s.) Chanc. 83.

(2) 35 Law J. Rep (N.s.) Chanc. 569.


The Court would appear to have con- was the plaintiff's own act, and there was sidered that Spencer v. Marriott (3) was in nothing in the lease to authorize it. If he point, where there was a lease of premises had wished to secure himself he should with a clause of re-entry if they were used either have investigated the title, or have for any public business, and the lessee obtained a covenant that he should be at sublet them, covenanting for quiet enjoy. liberty to use the premises for the purment, but without giving notice of the pose which he had in view. Whatever restrictive covenant in the head lease. difference there may be as to the facts in It was held that an action could not be Spencer v. Marriott (3), the ground of the maintained on this covenant for a forfei. decision was that the forfeiture was not ture incurred by the act of the person increased by any act of the lessor. The in possession, who used the premises as a case is treated as an authority in Sugien's place of business, for this could not be V. 8 P., 14th ed., 602; Dart's V. & P., considered as an eviction or interruption 4th ed., 717. by the lessor. But it appears from the re

Cur. adv. vult. port of the case in Dowling v. Ryland's Reports (4), that the defendant was not the The judgment of the Court (9) was original lessee, but only an assignee of the (on Feb. 16, 1872) delivered by lease, so that the forfeiture could not WILLES, J.—This was an action for the be said to be the result of a breach of breach of a covenant for quiet enjoyment, duty on his part in not informing the alleged to be expressed or implied in a plaintiff of the restrictive covenant. lease of a house, which was used as a

(Martin, B.-How can the interference grocer's shop when let, and which the by the freeholder be said to be a disturb- tenant turned into a beer-house. The ance by the lessor or any one claiming alleged breach consisted in a decree in a through him? The title of the free. Chancery suit, founded upon a covenant holder is above that of the lessor.]

by the lessor with the person from whom The burthen imposed on the lessee in he obtained the property, that the house farour of the freeholder is the act of the should not be used as a beer-house, by lessee. In Wickham v. Hawker (5),

which decree the tenant was restrained where the right to the game was reserved, by injunction from so using it, and lost it was held that this was not a reservation his expenses, profits and costs.

The but a re-grant by the lessee to the lessor. foundation of this decree was that the He also cited 2 Sugd. V. & P., 10th ed., Court of Chancery imputed to the tenant 512, 514; Butler V. Swinnerton (6); a constructive knowledge of the title of Calvert v. Sebright (7).

his landlord, and the restraint upon him, Prentice (Finlay with him), for the upon the ground that he need not have defendant.-- The case of Jackson v. Cobbin become tenant without investigating the (8) is a distinct authority that a promise title, and that having done so, he could cannot be implied from the mere fact of claim no greater right than his landlord. a lessee having entered into an agreement Whether this extension of restrictions for an under-tenancy that he has power to upon the use of property other than in let without restriction as to the purposes leases be sound or not, it is not for us to for which the premises are to be used. determine. At the common law the The plaintiff's case, therefore, must rest benefit of covenants made upon a purchase upon the express covenant for quiet en. runs with the land, but not the burthen, joyment, and of this there has been no except in the case of a lease, where the breach. The opening of the beer-shop assignee would, as a matter of course,

refer to the lease itself and find the re(3) 1 B. & C. 457.

striction set down. We must take (4) 2 Dowl. & Ry. 665.

it, however, as established that the Court (5) 7 Mee. & W. 63. (6) Palm. 339.

of Chancery has imposed this (7) 15 Beav. 156.

(8) 8 Mee. & W. 790; 8. C. 10 Law J. Rep. (9) Kelly, C.B.; Martin, B.; Willes, J.; Chan(n.s.) Exch. 389.

nell, B.; Bylos, J.; Keating, J.; and Cleasby, B.


burthen upon the use of property, and of an express covenant, however limited, that its authority has been lawfully exer- possibly the word “demise" might be cised in the present case. The question

relied upon to raise, notwithstanding the therefore is, whether a decree in Chancery statute Noke's Case (13). For these restricting a particular use of the land by reasons we think Spencer v. Marriott (3), reason of a covenant of the lessor, but where an expulsion by the head landlord not otherwise interfering with the title, for breach by an act of the under-lessee be a breach of the covenant for quiet of a covenant in the head lease as to the enjoyment. In deciding this we must use of the premises of which the underremember that there is no suggestion of lessee had no notice, was held to be no fraud, and that the covenant must have breach of a covenant for quiet enjoy. the same effect in the case of a tenant ment in the under-lease, and which who knew as in the case of a tenant who case this appeal seeks in effect to did not know of the restriction. All the over-rule, was rightly decided, accordargument upon the hardship of the case ing to the established course of preceis therefore irrelevant. Now there can dents, and that there is no ground in be no doubt that a proceeding of the reason for setting it aside. The judgCourt of Chancery or of a Court of com- ment must therefore be affirmed. mon law interfering with the title and possession of the land does amount to

Judgment affirmed. a breach of the covenant for quiet enjoyment, as in case of dower, common, rent, or such like-Calthorp v. Heyton (10), Attorneys - Loxley & Morley, for plaintiff; R. Hunt v. Danvers (11). On the other hand, Wilson, for defendant. it bas long been settled that such a proceeding interfering only with a particular mode of enjoyment of the land, or part of it, but not with the title or possession, is not a breach— Morgan v. Hunt (12). The covenant for quiet enjoyment, whether

1872. THE QUEEN V. THE JUSTICES OF with or without a partially restrictive

Jan. 24. covenant, has therefore been regarded as Order of Removal Appeal County a covenant to secure title and possession, Quarter Sessions - Borough Quarter Ses. and not to guarantee to the tenant that he sionsJurisdiction to hear Appeal. may lawfully use the land for any purpose not in his restriction.

To give it a

Where a pauper becomes chargeable in a

union which includes a borough having a wider effect might involve some strange

separate ('ourt of Quarter Sessions, the consequences. If a seller or lessor had worked out mines, and the purchaser or

guardians may obtain an order for the removal lessor were to build a house, which sunk

of such pauper to his place of settlement from into the old workings, here would be a

the justices of the borough, although the parbreach at once. In other words, a

ticular parish from which he is to be re

moved is not within the borough, and, in warranty would be read in that the land was capable of being used for any pur

such case, the proper tribunal to hear an pose, or for any purpose not expressly

appeal against the order is the quarter sesexcluded. This would be a novelty in

sions for the borough, and not the quarter

sessions for the county. itself and inconsistent with the settled rule, that a covenant for quiet enjoyment excludes all inferences of an implied

[For the report of the above case, see covenant for title, which in the absence

41 Law J. Rep. (N.s.) M.C. p. 78.]


(10) 2 Mod. 54.
(11) T. Raym. 370.
(12) 2 Vent, 213.
(13) 4 Rep. 806.




into a negotiation for the sale and disJan. 19.

posal of the lease, colliery and plant to a

called the Shoreoaks Colliery

company Attorney and Solicitor Liability for Negligence-Duty to Register lis pendens alleged and claimed that the said four

Company (Limited), and the plaintiff

) -2 3-3 Vict. c. 11. 8. 7.

tenth parts or shares of the benefits In an action against a solicitor for aforesaid were provided for by and men. negligence, the declaration stated that

tioned in an agreement made by and the plaintiff was equitably interested in between the plaintiff and Daniell, dated fourth-tenth parts of the lease of a the 18th of December, 1863; and the colliery, that the lessee had entered into plaintiff before and at the time, &c., had negotiations for the sale of the lease to a retained and employed the defendant as company, and that the plaintiff retained the and being such solicitor for reward, to defendant, as solicitor, to file a bill in institute and prosecute, and in and about Chancery against the lessee and the com- the instituting and prosecuting a bill of pany for the purpose of enforcing the plain- complaint in the Court of Chancery on tiff's claim in respect of his shares, and behalf of the now plaintiff against Daniell praying that the lessee might convey and and the Shoreoaks Colliery Company secure to the plaintif four-tenths of the (Limited), for the purpose of asserting, purchase money, and that the company enforcing and protecting the plaintiff's might be decreed to do all things necessary interests and claims in respect of the to confirm such conveyance and security and parts or shares of the benefits and profits mighi be enjoined from paying the plain. aforesaid, and in and by which bill of tiff's proportion of the purchase money to complaint the plaintiff prayed, amongst the lessee. Breach that the defendant did not other things, that Daniell might be decreed register the bill as a lis pendens according, specifically to convey and secure to the to 2 8. 3 Vict. c. 11. 8. 7, whereby the plain- plaintiff four equal tenth parts of the tiff was enabled to dispose of the lease to purchase money and shares

or other another company and to receive the purchase consideration agreed to be paid or money, and the plaintiff was deprived of given by the Shoreoaks Colliery Comhis share in it :-Held, that the declaration pany (Limited) for the colliery, lease, was good, as the bill in Chancery which plant and other things, and that the prayed for an equitable lien against the in- Shoreoaks Colliery Company (Limited) tended purchasers of the lease was a lis might be decreed to do all things necespendens, which ought to have been registered sary to confirm such conveyance and under the statute, and that having regard security to the plaintiff. Secondly, that

, to the ternis of the bill it was the duty of Daniell might be decreed to account for the defendant as a solicitor to have registered and pay or transfer to the plaintiff four it, without any express request on the part equal tenth parts of such purchase money of the plaintiff

and shares in the bill mentioned or other

consideration as he had already received Declaration-That before and at the from the company.

Thirdly, that the time of the retainer and employment of company might be decreed to pay and and of the committing of the grievances transfer to the plaintiff four equal tenth by the defendant as hereinafter mentioned parts of the consideration money

and the defendant was a solicitor, and the plain- shares or other consideration money retiff was interested in and equitably entitled maining unpaid, and might be restrained to four-tenth parts or shares of the benefits by the injunction of the Court of Chancery to be derived from a lease of a colliery from paying such four-tenth partsto Daniell and plant called the Shoreoaks Colliery or any other person than the plaintiff or (granted by the Duke of Newcastle to one as he should direct, and that Daniell James Nugent Daniell), and of the profits might be restrained by like injunction from which might be derived from the sale or receiving such four-tenths. Fourthly, disposal of the 'ease of the colliery and that Daniell might be decreed to account plant by Daniell, and Daniell had entered for and pay to the plaintiff four equal NEW SERIES, 11.- Q.B.


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