Court of law. Since the action is in this Court, the Crown already has all that was granted in Attorney-General v. Hallett (11), and the cases there cited, where actions in the Queen's Bench and Common Pleas touching the king's profit were removed into this Court. Those cases shew that where the Crown intervenes, it is the practice to try such actions in this Court. Moreover, the Crown, by substituting its own solicitor in the action, has taken command thereof, and has no ground for applying to equity.

at

The Solicitor-General, in reply.-"Where the Court entertains jurisdiction in specific performance, it is not the course of the Court to permit an action law to proceed for the same subject matter;" Duke of Beaufort v. Glynn (12). There, and in Hudson v. Bartram (13), Powell v. Lloyd (14), and Kell v. Nokes (15), the Court restrained actions begun before the filing of the respective bills; and so in Annesley v. Muggridge (16), where the plaintiff in the action had obtained judgment.

KELLY, C.B. The first question to be answered is, is this information maintainable? I give no opinion on the question as to whether a subject, who is lord of a manor, could maintain such an information, for it is unnecessary. This is an information by the Queen, claiming by virtue of her prerogative, and the Solicitor-General insists on the prerogative. Now the principle has been established by several decisions that where the Crown claims land, or manorial rights in land, or anything in the nature of a claim to realty, the Crown may at any time insist that those claims and rights shall be determined in an information of this kind, and not in an action between other parties which the Crown can only defend through a subject.

The prayer of this bill involves all the questions of right and custom which could be raised in the action; and the

(11) 15 Mee. & W. 97; s. c. 15 Law J. Rep. (N.S.) Exch. 246.

(12) 3 Sm. & G. 226.

(13) 3 Madd. 440.

(14) 1 You. & J. 427.

(15) 32 Law J. Rep. (N.s.) Chanc. 785. (16) 1 Madd. 593.

consequence of allowing both the inform ation and the action to proceed, would be that the manorial rights and the custom might be tried before a jury in this Court, and at the same time the same questions in form and substance might come to be determined by this Court, sitting as a Court of Equity.

It follows, then, as a matter of course, from the general doctrine of equitable jurisdiction, that the Attorney-General, as plaintiff in this information, is entitled to an injunction to restrain the action. Such an injunction was granted under similar circumstances in Leonard v. Rogers referred to in Attorney-General v. St. Aubyn (7). There Leonard, as bailiff of a manor in the Duchy of Cornwall, seized a gelding of Rogers, claiming it as a heriot for the use of the King. Rogers thereupon brought an action of trover on the plea side of this Court against Leonard. Leonard then exhibited an English bill in this Court against Rogers, to be relieved from the action. The Attorney-General to the Prince of Wales moved that the action might be no further proceeded in, and that the cause might be heard on the English bill, stating that Rogers had brought the action intending therein to call in question the custom of the manor, to the disinherison of the King and the Prince of Wales. This Court then made an order that the action be stayed until Rogers had answered the bill. I can see no distinction between that case and the present.

The form of the present bill is in substance the same as that in Attorney-General v. Reveley (10). I think, therefore, the injunction ought to issue on the grounds I have referred to, and without at all relying on the fact (which is not necessary for this decision), that the information is filed, not only against the plaintiff in the action, but against another person not a party to the action, and that it involves more questions than could be determined by the action.

CHANNELL, B.-I do not discuss the rights of lords of the manor where the Crown is not interested, but confine myself to this information, and to this appli cation made to us as a Court of Equity by the Attorney-General on behalf of the

Crown. I think the information is maintainable, and would be held good on demurrer. The next point is, whether the question involved in the information which this Court has jurisdiction to determine, is involved in the action. Clearly it is. Then the rule is that a Court of Equity, where it has jurisdiction over a question in a suit, which is also the subject matter of an action, will not allow the two proceedings to go on at the same time. Fowler's Practice of the Exchequer in Equity, 2nd ed. vol. i. p. 217, speaking of an injunction of this nature, says, "This writ is directed to the defendant to restrain him from proceeding at law against the plaintiff, touching the matters mentioned in the bill. It issues by the order and under the seal of the Court, not on account of any supremacy which this Court assumes over a Court of law, but in respect of its original jurisdiction as a Court of Equity, by which it controls the party and not the Court, from proceeding at law in the particular case made by the bill, till the defendant shall have fully answered it, and this Court shall have made further order." the fact that the question involved in the information is also raised in the action, is enough to warrant us in granting the injunction. The Attorney-General v. Hallett (11), decided that where the Attorney-General alleged that an action in the Common Pleas between subjects involved the profit of the Crown, the Crown could interfere, and have some control over the action-so far as to remove it into the plea side of the Exchequer, subject to the condition that the proceedings in the action be kept in the same state of advancement in the Exchequer, as they had been in the Common Pleas.

Then

The Exchequer, as a Court of Equity, is a Court as distinct from the Exchequer of Pleas, as from the Common Pleas.

That decision does not decide the present case, but it is not inconsistent with it.

But further, the information raises some points which the action may not determine and first, Barker, one of the defendants to the information, is no party to the action; he is a copyholder and landlord of the plaintiff in the action, and

his rights must be dealt with. Again, the right of Kennedy and Turner to a renewal of their license may be determined in the information, but would not necessarily arise in the action.

I think, therefore, the injunction should be granted for the reason I have given above, and also because there is some ground for believing that the action could not determine all the questions which this information can determine.

CLEASBY, B.-I am of the same opinion. Two questions arise here. First, is this a case in which this Court, as a Court of Equity, entertains jurisdiction to grant the prayer of the bill; and is this English bill and information the proper mode for the Crown to adopt in order to have a declaration of the rights which it claims?

I answer that in the affirmative, on the ground of the prerogative in the Crown; and the Attorney-General v. Reveley (10), is a precedent.

Secondly, ought this injunction to issue? Since the rights claimed by the Crown in this bill are called in question in an action between subjects, and since the Crown, by virtue of its preroga tive, is entitled to prevent those rights being decided in the action, it follows, of course, that the same matters cannot be allowed to be the subject of proceedings at the same time in two distinct Courts, one of which is able to determine all the questions involved, and the other is not. Injunction granted.

Attorneys-The Solicitor to the office of Woods, &c., for the Crown; Cunliffe & Beaumont, for defendants.

The

the merchant carried on his business. traveller travelled within the distance as agent and collector for a firm of brewers in the same town, who brewed and sold only beer, ale, and porter, and sold no liquor but of their own manufacture :-Held, that the brewers were not porter, ale, or spirit merchants within the meaning of the bond.

The declaration set out a bond by principal and sureties, for 1007., which recited that the plaintiff, an ale, porter, and spirit merchant, of Colchester, had agreed to admit the defendant, Parson, into his service as a traveller, subject to determination by one week's notice, and was conditioned to be void if (inter alia) the defendant, Parson," do not at any time within twelve calendar months after the determination of his service with C. Josselyn (the plaintiff), travel for any porter, ale, or spirit merchant, as agent, collector, or otherwise in Colchester, or within twenty-five miles thereof." Averment that the plaintiff admitted into his service the defendant, Parson, as a traveller in the trade and business of an ale, porter, and spirit merchant, that the service was determined, and that all things happened, &c. Breach, that the defendant, Parson, within the year travelled for certain other porter, ale, and spirit merchants as agent, collector, or otherwise, in Colchester. Plea, a traverse of the breach, and issue thereon.

At the trial before Byles, J., at the Suffolk Summer Assizes, 1871, the following facts were proved. The plaintiff was an attorney and also carried on the business of an ale, porter, and spirit merchant in Colchester. He did not brew or distil, but bought and sold ale, porter, and spirits. The defendant, Parson, after leaving the plaintiff's service, travelled within the twenty-five miles as agent and collector for Daniell & Bishop, brewers in Colchester. They brewed in Colchester, and sold there and in London, beer, ale, and porter. They did not distil, and sold no liquor but of their own manufacture. A "dealer's license" was taken out for the plaintiff. Daniell & Bishop took out a common brewer's license" for Colchester, and a "dealer's license" for their London stores.

The defendant's counsel admitted that there would be a forfeiture of the bond if Daniell & Bishop were either porter merchants, ale merchants, or spirit merchants within the meaning of the bond, but contended that Daniell & Bishop were not such merchants, but were common brewers.

A verdict for nominal damages was taken for the plaintiff by consent, leave being reserved to the defendants to move to enter the verdict for them on the above ground; the Court to draw all inferences of fact.

A rule nisi having been obtained accordingly

No counsel appeared for the plaintiff to shew cause.

Bulwer and W. Graham, for the defendants, in support of the rule, cited Comyn's Digest, tit. Merchant A.: "Generally everyone shall be a merchant who traffics by way of buying and selling or bartering of any goods or any merchandise."

MARTIN, B.-As my brothers have a very strong opinion on the point, I do not wish to insist upon the contrary view to which I was at first inclined.

BRAMWELL, B.-I think this rule should be made absolute. The question is, did the defendant Parson, by entering the service of a brewer, break his engagement not to enter the service of an ale, porter, or spirit merchant in the disjunctive; i.e., is a brewer as such, without more, a porter or ale merchant? Now, one understands a merchant of or in any merchandise, to be a merchant of that merchandise generally; ex. gr., a wine merchant deals in wine generallyport, sherry, claret, champagne, &c. He need not deal in every wine; for though he sold no Hungarian, he would well call himself a wine merchant. But if he sold port only, he should properly call himself a port wine merchant. So of a spirit merchant: he sells gin, brandy, rum, whisky, &c.; and if he sold brandy only, he should call himself a brandy merchant. A porter merchant in the same way sells porter generally-London porter, Dublin porter, Cork porter; but if he sold one sort only, he should describe himself accordingly, as a Dublin porter merchant,

or, as they commonly say, agent for sale of Dublin porter. Treating the defendant Parson therefore as being in the service of a seller of one sort of beer and ale only, viz., his present master's brewing, I think his master ought to be called a Colchester beer merchant, or some other limited name. I think a porter merchant is a man who deals in all or many sorts of porter, not one only. On this ground alone I should think the defendant right. But in addition to this, I agree with Mr. Bulwer, that a merchant of or in an article, is one who buys and sells it, and not the manufacturer selling. A wine grower is not a wine merchant: even a wine importer is not called a wine merchant, but wine importer. So of a distiller, and so of a brewer, as here. The reason of the thing is the same way. The brewer is a man who deals with the ale and porter merchant, not one who competes with him, at least in all cases.

PIGOTT, B.-I entirely agree. The difference between a manufacturer and a dealer is well defined, and the trade of a porter, ale, and spirit merchant is a well understood business.

Rule absolute.

Attorneys-Doyle & Edwards, agents for Henry Jones, Colchester, for plaintiff; Kingsford & Dorman, agents for Turner, Deane & Elwes, Colchester, for defendants.

[IN THE EXCHEQUER CHAMBER.] (Appeal from the Court of Exchequer.)

1872. Feb. 3.

MOULE V. GARRETT AND
OTHERS.

Lease-Successive Assignments-Liabi lity of Ultimate Assignee-Implied Contract with the Original Lessee-Privity.

The plaintiff being lessee of certain premises assigned his lease to A. B., who as signed to the defendants, who committed breaches of covenant and then assigned over. The plaintiff was subsequently sued by the lessor for the breaches of covenant committed while the defendants were assignees, and was compelled to pay :—Held (affirming the decision of the Court of Exchequer) that the plaintiff was entitled to

recover from the defendants the amount he had been so compelled to pay to his lessor.

The facts of this case [which with the pleadings are set out at length in the report in the Court below (1)] were shortly as follows:

Godfrey Thurgood, by indenture dated the 15th of June, 1845, demised certain premises to the plaintiff, who covenanted for himself his heirs and assigns inter alia well and sufficiently to repair the same.

On the 3rd of May, 1860, the defendants agreed to buy the lease of plaintiff for 60l., for a person to be named by them. The plaintiff agreed to pay rent, rates, and taxes to the 9th of May, on which day he agreed to give up possession to the defendants or their appointee. Ultimately the plaintiff gave up possession to one Bartley, the nominee of the defendants. The assignment to Bartley contained the usual covenant by him to perform the covenants in the lease, and to indemnify the plaintiff.

On the 14th of July, 1860, the defendants took from Bartley a mortgage by way of under lease to secure moneys advanced by them, and on the 23rd of November, 1860, Bartley, by indorsement on the mortgage deed, assigned the lease for the residue of the term to the defendants, free from his equity of redemption, subject to the payment of rent and performance of the covenants. The assignment contained a covenant by the defendants to indemnify Bartley from all actions which should be prosecuted against him, and all costs which he should incur by reason of the non-payment of the rent, and non-observance of the covenants.

The defendants took possession of the premises, and remained in possession till the 29th of January, 1867, when they assigned the lease to Thomas Higgins by an indenture containing a covenant by him to pay rent, and perform the covenants and indemnify the defendants.

On the 4th of July, 1866, Thurgood gave the plaintiff notice to do certain repairs; and in April, 1867, his executors sued the plaintiff for breach of covenant. The plaintiff gave immediate notice of the

(1) 39 Law J. Rep. (N.s.) Exch. 69.

action to the defendants, who replied that they had no interest in the lease.

The plaintiff allowed judgment to go by default in the action at the suit of Thurgood's executors, and paid 1581. 18. 1d. for damages and costs. On the 7th of July, 1868, the present action was commenced.

At the trial a verdict was entered for the defendants, leave being reserved to enter a verdict for the plaintiff for 751., which was agreed upon as the amount of the dilapidations which accrued during the time when the defendants were assignees of the term.

A rule was obtained and subsequently made absolute by the Court of Exchequer (1), Channell, B., and Pigott, B., holding that the plaintiff was entitled to recover; and Cleasby, B., being of the contrary opinion.

The defendants having appealed to this Court,

Risdon Bennett (with him Manisty) argued for them. The view taken by Cleasby, B., in the Court below is the correct one.

There is no privity between the parties to the action here, as there was in Burnett v. Lynch (2); and in Wolveridge v. Steward (3), the other case relied on for the plaintiff, there are qualifying expressions in the judgment which materially affect its authority in governing a case like the present which does not involve suretyship. A lessee in assigning his lease may protect himself against the burden of his covenants by taking covenants from his assignee Platt on Covenants, 493; but it cannot be said that there is any implied contract of suretyship between a lessee as surety and ultimate assignees like the defendants as principals, for he himself remains primarily liable on his covenant with his lessor.

[WILLES, J.-If two persons are bound to perform the same act, whether by the same or by separate instruments, and one of them derives the whole benefit, he must be prepared to bear the whole burden -Dering v. Earl of Winchilsea (4).]

H. T. Cole (with him C. G. Merewether), for the plaintiff.-There can be no doubt as to the defendants' liability to the original lessor-Burnett v. Lynch (2), or indeed to their immediate assignor-Wolveridge v. Steward (3); and the plaintiff has relieved them of this liability. At any rate, if they had discharged their own liability, the plaintiff would not have had to pay damages to his lessor. Neale v. Wyllie (5), and Penley v. Watts (6) also support the plaintiff's case. [He was stopped in his argument.]

Bennett in reply contended that the plaintiff was not in the position of surety properly so called,-referring to the judgment in Humble v. Langston (7).

COCKBURN, C.J.-I think that the judg ment of the Court of Exchequer should be affirmed. There can be no doubt that there was a breach of covenant here in respect of which the defendants were liable, at all events to the original lessor, and also to their own assignor. Now the defendants acquired by assignment the same estate which the original lessee took, and in my opinion they took the estate from the prior assignee subject to all the provisions of the lease, not merely as regards the prior assignee, i.e., their immediate assignor, but also as regards the original lessee himself. It is the same estate burthened with the same conditions and covenants as the original lessee took it with; and I think the defendants took it subject to all the liabilities which those covenants imposed not only upon their immediate assignor, but also upon the first lessee.

But there is another ground upon which the judgment of the Court below may be upheld; namely, that the premises, the subject matter of this lease, being in the possession of the defendants, they were the parties whose duty it was to perform the covenants to be performed upon and in respect. of those premises, and whose immediate duty it was to keep those premises in repair. By reason of their default the plaintiff, the original lessee, became liable (5) 3 B. & C. 533.

(6) 7 Mee. & W. 601; s. c. 10 Law J. Rep. (N.S.) Exch. 229.

(7) 10 Law J. Rep. (N.s.) Exch. 445; s. c. 7 Mee. & W. 530.