the written licence of the plaintiff he assigned, inter alia, all his interest in the lease to Chirgwin and Hamilton, as trustees for his creditors. It appeared that the plaintiff had assented to this transfer under the belief that, by an arrangement between the trustees and Wade, the family of Wade were to be allowed to continue in possession; but the trustees, taking a different view of the matter, sold the term to the defendant, and the defendant entered into possession. Two grounds of forfeiture were relied on at the trial. First, the unlicensed parting with the possession by Chirgwin and Hamilton, the trustees, to the defendant; and secondly, the parting with the possession by the original lessees, Tedder and Pridham, to Wade, without executing a transfer of the lease, so as to make him an assignee, and as such bound by all such covenants as ran with the land. A nonsuit was directed, reserving leave to enter a verdict for the plaintiff. Mr. Kingdon obtained a rule nisi accordingly, which was argued in last Hilary Term. There was much argument at the bar as to whether, upon the true construction of the covenant in the lease, it bound the lessees only not to assign, and was merely a personal restriction not affecting their assigns, or whether it was a covenant running with the land and binding every assign. (1) In the view we take of the matter, it is not necessary to express any opinion on this point, as there never was, in our opinion, any assignee of the whole term so as to be subject to any of the covenants in the lease, and therefore if there was any forfeiture of the term, it could only be in conse (1) The defendant's counsel contended, that, assigns not being mentioned, the covenant not to assign, though decided in Williams v. Earle (Law Rep. 3 Q. B. 739) to run with the land, did not bind assignees on this he cited Doe v. Payne (1 Stark. 86); Seers v. Hind (1 Ves. 295); Roe v. Harrison (2 T. R. 425); 2 Platt on Leases, 272–273 ; Wood fall's Landlord and Tenant, 9th ed. 550; 5 Davidson's Conveyancing, 176, n. (c); Whitchcot v. Fox (Cro. Jac. 398); Doe v. Smith (5 Taunt. 795); Paul v. Nurse (8 B. & C. 486). The plainVOL. IV. 3 F tiff's counsel referred to Bally v. Wells 1 1869 WEST บ. DOBB. 1869 WEST V. DOBB. quence of a breach of covenant by the original lessees, Tedder and Pridham. It was also argued, that the parting with the possession by Chirgwin and Hamilton, the trustees for Wade's creditors, to the defendant was such a breach of covenant on the part of Tedder and Pridham, the original lessees: because it was said that the law takes no notice of the relation of trustee and cestui que trust; and therefore, it was argued, that the possession of Chirgwin and Hamilton, the cestui que trusts, must be considered at law as the possession of Tedder and Pridham, and the change of the cestui que trusts from Chirgwin and Hamilton to the defendant must be considered a parting with the possession by the trustees, Tedder and Pridham, and consequently, a breach of covenant on their part, for which they would be liable in damages, though they neither were parties to the change nor had any power to prevent it. But no authority was cited in support of this very artificial reasoning. And we think it obvious that it involves in itself the fallacy of requiring the Court to hold (contrary to the fact) that Chirgwin and Hamilton (the assigning cestui que trusts) were merely servants to Tedder and Pridham; and yet to take notice that the defendant, to whom they transferred their equitable interest, was more than a servant to Tedder and Pridham. The second ground of forfeiture depends upon the effect of the written licence of the 25th of March, 1865. We do not doubt that the plaintiff might have granted a licence to assign the term, so expressed as to forbid the lessees parting with the possession until a complete transfer of the legal interest had been executed. But the practice of letting a purchaser into possession before the legal estate is transferred is so common, that if it was intended to forbid such a change of possession, it ought to have been clearly expressed, and in the present case it was not. The utmost effect which can be given to the expressions in the letter is that the landlord had a right to call upon the parties to complete the transfer of the legal estate, which he never did. The rule, therefore, must be discharged. Rule discharged. Attorneys for plaintiff: Coode, Kingdon, & Cotton, for Shilson, Coode, & Co., St Austell. Attorneys for defendant: Hooke & Co. BERRIDGE v. FITZGERALD. Bill of Exchange-Notice of Dishonour. The plaintiff, having supplied goods in the way of trade to a company, was about to sue the company, but agreed to take a bill of exchange for the amount accepted by the company, if two of the directors indorsed it. The plaintiff accordingly attended at the office of the company, and a bill was drawn on the company, and accepted on behalf of the company by the manager; and the defendant and another director, both of whom were in the habit of attending at the company's office, put their names to the bill as indorsers. When the bill became due it was not paid, the company being then in progress of being wound up, and the plaintiff, not knowing the defendant's residence, immediately sent a notice of dishonour addressed to the defendant at the office of the company; but the defendant did not receive it till long after, having ceased to attend there on the company becoming embarrassed :— Held, that, under the circumstances, the notice of dishonour was good. DECLARATION against the defendant as indorser of a bill of exchange. Plea: A traverse of the notice of dishonour. Issue thereon. At the trial before Blackburn, J., at the sittings in London after Michaelmas Term, 1868, it appeared that the plaintiff had supplied stationery for the purposes of the business, to the Industrial London Loan and Interest Company, Limited, and threatened to sue the company for the amount, 727. 10s.; but he agreed to take a bill of exchange for the amount accepted by the company, provided two directors of the company indorsed the bill. Accordingly the plaintiff attended at the office of the company, 20, Great George Street, and a bill of exchange dated the 22nd of April, 1868, was drawn by the plaintiff to his own order, for 727. 10s., payable at three months, upon the "Industrial London Loan and Interest Company, Limited, 20, Great George Street, W.C.," and the bill was then and there accepted on behalf of the company, by C. Beavan, manager, and indorsed by the defendant and J. Johnstone, both of whom were acting directors, and in the habit of attending at the company's office. Soon after this there was a proposal for amalgamation with the Provident Union Company, Bridge Street, Blackfriars, but the amalgamation was not carried out; and in June a petition was VOL. IV. 3 G 1 1869 June 9. 1869 BERRIDGE V. FITZGERALD. filed, and on the 17th of July an order made for winding up the company. The bill being unpaid at maturity, the plaintiff immediately sent notice of dishonour to the defendant, addressed to the office of the company, 20, Great George Street, but it did not reach him till some time afterwards, as he had ceased to attend at the office of the company upon the company becoming embarrassed. The defendant lived at Petersham, but the plaintiff knew nothing about him. The plaintiff made inquiries at the office of the Provident Union Company, and also of one of the directors of the other company, who informed him that the defendant lived somewhere on the South Western line of railway; but the plaintiff did not inquire at the office of the defendant's company, 20, Great George Street. The writ was issued on the 29th of July, and served on the defendant on the 4th of August, 1868, at his house at Petersham. In answer to a question of the learned judge, the jury found that the plaintiff had done his best to find out the private residence of the defendant; and a verdict was directed for the plaintiff, with leave to the defendant to move to enter a nonsuit. A rule was obtained accordingly, on the ground that there had been no notice of dishonour, and no circumstances to excuse the want of it. Warton shewed cause, and contended that the plaintiff did make sufficient inquiry as to the place of residence of the defendant; and if not, the notice of dishonour at the place of business of the company for whose debt the bill was accepted, and on his behalf the defendant, as director, became surety, was sufficient. The defendant gave no other address, and for the purposes of the bill he must be considered to have held out that place as his place of business. He cited Siggers v. Browne (1); Hewitt v. Thompson (2); Beveridge v. Burgis (3); Rowe v. Tipper. (4) [HAYES, J., referred to Bateman v. Joseph. (5)] Hodgson, for the defendant, was directed by the Court to confine his argument to the second point, and he cited Re Leeds Banking Company, Ex parte Prange. (6) (1) 1 Moo. & Rob. 520. (3) 3 Camp. 262. (4) 13 C. B. 249; 22 L. J. (C.P.) 135. (5) 12 East, 433. (6) 35 L. J. (Ch.) 33. COCKBURN, C.J. I am of opinion that the rule should be discharged. There can be no doubt that, when the holder of a bill of exchange seeks to sue an indorser, he must give due notice of dishonour, if the bill when due is not met by the acceptor, and he must find out the indorser, or at all events use reasonable diligence to find out either his place of residence or place of business, if the bill has been indorsed in his way of business or trade; and if the bill has been given or indorsed in the way of business it is enough if the holder give notice of dishonour at the indorser's place of business. In the present case the notice was not given at the defendant's place of residence, but only at the office of the company of which the defendant was a director. We have to consider whether the office of the company was the place of business of the defendant, or at all events, looking at the circumstances under which the bill was given, whether the defendant authorized the plaintiff to treat the office of the company as his place of business for the purposes of the bill, or as the place where he would be likely to be found. The bill was given for a debt of the company of which the defendant was an acting director; and when the plaintiff agreed to take the bill he insisted that it should have the names of two directors as an additional security. The bill was accordingly drawn and accepted at the office of the company, and the defendant indorsed the bill at the office as a director of the company; and though he may have thought he had not made himself liable in his individual capacity, yet the bill was given to keep the affairs of the company straight, and the transaction took place at the office of the company as a business transaction of the company. Under the circumstances, therefore, I think the defendant authorized the plaintiff to treat the office of the company as the place, in case the bill was not paid, at which the defendant would be found, or from which the notice of dishonour would be forwarded to him so as to reach him in due time; therefore I think the office of the company was the place of business of the defendant with reference to this particular transaction, which was entirely for the business of the company. Upon the other point it is unnecessary to give any decided opinion, though I am strongly inclined to think the plaintiff did not use reasonable diligence to find out the defendant's place of residence. 1869 BERRIDGE V. FITZGERALD. |