rawan borrows a horse, the law implies a promise bender to feed the animal properly and sufficiently } x charge and possession. (g) And in the case of hels generally, the law implies a promise from the - sed reasonable care of the thing borrowed; to use tions given or understood; to restore it at the or it in a proper condition. (h) If a ship is a promise or undertaking from the insurer that at the time that the insurance is effected; and if assured by another, there is an implied understandassurer to make a full disclosure of all material cirKnowledge affecting the health of the assured.

to become surety for a debtor at his request, the ...om the latter to indemnify the surety from all exhis situation of surety; (i) and if several persons .. for one principal in respect of the same debt or Aly or severally, or by the same or different con

plied contract or understanding amongst them all ir several proportions of the common liability; and pelled to pay the whole debt, or more than his own may sue his co-sureties upon an implied promise of over from each individually an aliquot share or promon burthen. (k) But this implied promise may be stances tending to show a different understanding and A parties. (7) If one of several joint contractors, also, s is compelled to pay a demand, for the satisfaction e all jointly liable, the law raises an implied promise pay their several shares and proportions of the common

rized from persons who undertake a gratuitous trust, or to of skill.-The law implies also from all persons who ty, charge, office, employment, or trust, a promise to act and diligence, and proper and reasonable care, in the exe 2

tion of such duty, trust, or employment, and according to orders given and assented to. (n) A banker, who has in his hands sufficient funds of a customer, impliedly undertakes to pay a check drawn by the latter, if the check be presented within banking hours; (0) and a man who undertakes the duty and office of an executor, and has assets sufficient for the purpose, impliedly promises to pay for a funeral suitable to the station in life of his testator, furnished and provided by a third person in the absence of the executor, and without his knowledge and concurrence; and the law implies a request from the executors to the stranger who has undertaken the necessary duty, to do what he has done, although in point of fact they gave no orders, and made no promise. (p) If a man voluntarily takes charge of the goods and chattels of another, the law implies a promise from him to take reasonable and proper care of them. (g) The law also implies a promise from a common innkeeper to secure his guest's goods in his inn, (r) and to take all reasonable and proper care of horses and cattle placed in his stables; (s) from a common carrier, to be answerable for the goods he carries; (t) from a ferryman, safely to transport things entrustedto him across a river, and deliver them on the opposite bank; from a common farrier, that he will shoe a horse without laming him, in which, if they fail, an action lies to recover damages for the breach of their implied undertaking; (u) also from a trainer of horses, that he will exercise reasonable skill and management in the riding of horses entrusted to him; (x) from every artificer and handicraftsman, that he will exercise his art rightfully, truly, and skilfully, as he ought; (y) and from brokers, agents, attorneys, surgeons, and other professional men, that they will severally, in their respective callings, exercise competent skill and proper care in the service they undertake to perform, in which, if they fail, an

(n) Black. Com. 3, p. 163. Govett v. Radnidge, 3 East, 66. Streeter v. Horlock, 7 Moore, 287. Gurford v. Bayley, 4 Sc. N. R. 398.

(0) Marzetti v. Williams, 1 B. & Ad. 415. Whitaker v. Bank of England, 1 C. M. & R. 751. Boyd v. Emmerson, 2 Ad. & E. 184.

(p) Rogers v. Price, 3 Y. & J. 28. Tugwell v. Heyman, 3 Campb. 297.

(q) Southcote's case, 4 Rep. 83, b. 84. Coggs v. Barnard, Raym. 909; 2. Smith's leading cases, 82, 104; Story on Bailments, ch. 2.

(r) "Secundum legem et consuetudinem regni nostri Angliæ, hospitatores qui hospitia communia tenent ad hospitandum homines per partes ubi hujusmodi hospitia existunt transeuntes et in eisdem hospitantes, eorum bona et catalla infra hospitia illa existentia absque distractione aut amissione custodire die ac nocte teneantur, ita quod pro defectu dictorum hospitatorum vel servientium suorum damna non eveniant ullo modo."

Fitz. nat. brev. 91. a. b. 94. Reg. p. 105. Calye's case, 8 Rep. 32, a. Stannian v. Davis, 1 Salk. 404; 6 Mod. 223, s. c. Sanders v. Spencer, Dyer, 266, a. Story on Bailments, § 470, 472. Richmond v. Smith, 8 B. & C. 9. But the innkeeper is exonerated where the guest takes a room for purposes of trade, and chooses to have his goods under his own care. Burgess v. Clements, 4 M. & S. 306.

(s) Dawson v. Cholmeley, 13 Law Jour. Rep. N. S. Q. B. 33.

(t) Muschamp v. Lancaster and Preston Railway Company, 8 M. & W. 421. Wyld v. Pickford, 8 ib. 460, 461. Cairns v. Robins, 8 ib. 258. Coggs v. Bernard, Raym. 918. (u) Walker v. Jackson, 10 M. & W. 161. (x) Wilson v. Brett, 11 M. & W. 113. (y) Norris v. Staps, Hob. 211; Rol. Abr. 91, pl. 15. Best v. Yates, 1 Ventr. 268. Slater v. Baker, 2 Wils 359.

206

CHAPTER VII.

OF COVENANTS AND SIMPLE CONTRACTS AND PROMISES CREATED BY IMPLICATION OF LAW.

SECTION I.-Implied covenants as between grantor and grantee, and lessor and lessee of an estate, right, or interest-Of the duration of the implied covenant for quiet enjoyment when the lessor is tenant for life only-Of implied covenants as between assignor and assignee.

SECTION II.-Implied promises as between lessor and lessee, and assignor and assignee-Borrower and lender-Insurer and insured-Principal and surety-And between sureties by way of contribution to their common liability-Of promises implied from persons who undertake a gratuitous trust, or to discharge an office of skill-Also from a husband in respect of necessaries furnished, and protection afforded, to his wife when living, and in respect of her burial when dead-Implied promises in respect of benefits derived from a part execution of a special contract.

SECTION III. Of implied promises resulting from work and service-Also from work done and materials supplied under a special contract which has been abandoned or rescinded, or which proves to be invalid or nugatory-Building contracts-When the employer loses the benefit of his special contract, and becomes liable upon an implied promise to pay by measure and value. SECTION IV. Of implied contracts of sale and implied warranties and promises in respect of goods sold-Implied promise by the vendor to disclose latent defects known to him; to resort to no artifice, or concealment, or wilful misrepresentation; to furnish an absent purchaser with an article fairly corresponding with the description given in the order-Implied warranties on sales by a vendor who is told that the subject matter of the sale is required for a specific purpose, or who manufactures and sells an article to be used in a particular mannerner-Implied warranties on sales of provisions.

SECTION V. Of implied promises in respect of money lent; money paid; money had and received ; and an account stated-And of the implied promise to refund money received through mistake, or through the medium of oppression, extortion, or deceit, or by virtue of an illegal contract.

SECTION I.

OF IMPLIED COVENANTS.

Although the words of a contract under seal do not in themselves import any express covenant, yet the law, in order to give a proper force and

effect to the contract to promote good faith and make men act up to the spirit as well as to the letter of their engagements, will create and supply, as a necessary result and consequence of the contract, certain covenants and obligations which bind the parties as forcibly and effectually as if they had been expressed in the strongest and most explicit terms in the deed itself. By the common law, whenever any estate or interest was granted by deed, there resulted an implied covenant on the part of the grantor, that he would do nothing to defeat or destroy the estate or interest he professed to grant. If one man granted to another an incorporeal right, the law implied a covenant from the grantor that he would do nothing to annul or avoid such grant; if he granted a watercourse, a right of way, or estovers, there resulted from such grant, by inference of law, a covenant for the quiet enjoyment of the thing granted, and if the grantor stopped up the watercourse, or the road, or cut down the wood out of which the estovers were to be taken, the grantee was entitled to an action of covenant against him for the misfeasance. (a)

Now, however, it is enacted by the act of 7 & 8 Vict. c. 76, s. 6, which extends to all estates, rights, and interests created on and after the 1st of January, 1845, that the word "grant" in a deed, shall not have the effect of creating any COVENANT by implication, except in cases where by any act of parliament, it is, or shall be declared, that the word "GRANT" shall have such effect.

Implied covenants as between landlord and tenant.-On the execution of a lease under seal the law implies from the word "demise" or any equivalent words in the contract constituting and creating a lease, a covenant on the part of the lessor that he has a right to make the lease and to grant the estate or interest in the land which he professes to create, and that the lessee shall quietly possess and enjoy that estate without any interruption from the lessor or those claiming under him, or from any person claiming by title paramount, and also from the words "yielding" or "paying," or any equivalent words amounting to a reservation of rent, a cOVENANT, on the part of the lessee, to pay the rent so reserved, although the words do not in themselves import any express covenant. (b) And if a man by deed takes upon himself to demise that which he has no right to demise, an action may be maintained against

(a) 1 Saund. 321; Bac. Abr. Covenant, B. (b) Shep. Touch. 165, 167; 1 Sid. 447; Co. Litt. 365, a. Noke's case; 4 Co. Rep. 80, b; 2 Lev. 206; T. Jones, 102; Cro. Jac. 73; 1 Salk. 38; 1 Show. 78, s. c.; Carth. 135; 1

B. & C. 410; 2 D. & R. 670, s. c.; 9 Ves. 330; 15 Ves. 264; 12 M. & W. 85; Buller, J., 2 B. & P. 26; Domat. 1, tit. 2, s. 10; Tindal, C. J., 4 M. & P. 510.

him by his lessee for the breach of this implied covenant, whether the latter has or has not entered upon the land, and been actually evicted therefrom. Thus, where the lessee alleged as a breach of such implied covenant, that at the time of the demise the lessor was not seized of the land but a stranger, but did not show any entry on the lands by virtue of the lease, nor any ejectment by the stranger; it was held, that the action would lie notwithstanding, "for the breach of the covenant was, that the lessor had taken upon himself to demise that which he could not, and it is not reasonable to force the lessee to enter upon the land, and so commit a trespass." (c)

When a lease has been granted by a tenant for life, the duration of the implied covenant for quiet enjoyment is restricted to the lifetime of such tenant for life; if, therefore, the lessee is evicted by the remainder-man after the death of the tenant for life, but before the expiration of the term, the lessee cannot maintain an action of covenant against the executors of the tenant for life in respect of such eviction. (d) In all assignments of leases and existing interests, there is an implied covenant on the part of the assignor, that he has resorted to no fraudulent concealment or wilful misrepresentation to mislead the assignee, and that he has himself done nothing, and will do nothing, to prejudice or defeat the estate, title, or interest that he professes to assign.

The proprietor of a medicine, and a recipe for making the same, "bargained, sold, assigned, transferred, and set over," the medicine and recipe, and all his "right, title, interest, claim, or demand to the said medicine, &c.," to a purchaser; and it was held that the law would imply from the transfer and assignment a covenant from the vendor, that he would not himself prepare and vend the medicine so assigned, or engage with others in so doing. (e) So, where a man by deed "bargained, sold, assigned, and transferred," a sum of money due to him from a third person, it was held that the law would imply, from the words of transfer and assignment, a covenant from the assignor to do no act to prevent the assignee from obtaining possession of the sum so assigned. (ƒ)

(c) Holder v. Taylor, Hob. 12. Hacket v. Glover, 10 Mod. 142.

(d) Adams v. Gibney, 4 M. & P. 510; 6 Bing 656, s. c.

(e) Seddon v. Senate, 13 East, 63.

(f) Dering v. Farington, 3 Keb. 304; Freem. 368; 1 Mod. 113.