C. A. 1897 GRAHAM v. SUTTON, CARDEN & Co. Rigby L.J. their business, and to reseal them. They ought to have known that that would not do; but they appear to have been acting according to precedent. However, although they have acted wrongly, they are entitled to be relieved-only they must pay the costs of it, and that is not contested. As regards the plaintiff, he has been wrong from first to last. He was wrong in asking for such an extravagant order, and wrong in insisting upon having his pound of flesh. I cannot believe that if any suggestion had been made that he would not get the benefit of an oath on each occasion, that there would have been the slightest difficulty as to his having that. Moreover, I do not think that these strict rights ought to be insisted upon. I have never known any difficulty of this kind arise in practice when documents had to be produced, even where examinations of witnesses have gone on week after week. I doubt whether in these cases there was any order of the Court which prevented ridiculous objections being taken; but solicitors do not do their duty to their clients by insisting upon the strict letter of their rights. That is the sort of thing which, if permitted, brings the administration of justice into odium. It is our duty to prevent such consequences if we can. When the defendants found themselves in a difficulty they applied to the Court for assistance, and they must pay the costs of obtaining it. They must however have the costs of this appeal. The order made by the Court of Appeal, as passed and entered was, so far as material, as follows: This Court doth order that, notwithstanding the said order dated the 30th November, 1896, as to sealing up, the defendants be at liberty on the inspection under the said order to cover up from time to time such parts of the books therein mentioned as do not contain any entries relating to any matter in question in the account directed by the order dated 1st July, 1895, and to produce on such inspection from time to time such entries only as relate to the matters in question in such account without on each occasion sealing up the entries which do not so relate. But at the conclusion of such inspection an affidavit is to be made by Charles Thomas Sutton the younger on behalf of the defendants that no parts of the books which have during such inspection been so covered up contain entries which do so relate. Solicitors: C. E. Tranter Lamb; Howard & Atherton. W. W. K. WHITE v. SOUTHEND HOTEL COMPANY. [1896 W. 2489.] Lease-Hotel-Lessee's Covenant-Covenant not to buy Wines except from A lease by a wine merchant of an hotel for thirty years at a rent of 15007. a year contained a covenant by the lessee with the lessor, his heirs and assigns, that he, the lessee, would not during the term buy or sell on the premises any foreign wines other than should have been supplied by the lessor, his successors or assigns; and it was provided that so long as the lessee should observe this covenant the lessor should allow the lessee an abatement of 751. from each quarter's rent. The lessor died during the term. The plaintiffs, who were his executors, sold his wine business to the firm of W. & P.; and the lessee assigned the lease of the hotel to the defendants. The defendants claimed that, so long as they continued to buy wines from W. & P., they were entitled to the abatement from each quarter's rent; but the plaintiffs insisted that, when the ownership of the wine business and the ownership of the reversion upon the lease were severed, the covenant to buy wines ceased to be operative, and consequently that the defendants were not entitled to the benefit of the proviso: Held, (1.) that, although the covenant to buy wines did not in terms include the assigns of the lessee, the burden of it ran with the tenant's interest under the lease, and (2.) that the assigns of the lessee were still bound by the covenant and entitled to the benefit of the proviso for abatement of rent. The decision of Kekewich J. affirmed. APPEAL from Kekewich J. By an indenture of lease, dated June 13, 1882, Sir Thomas White, who carried on the business of a wine and spirit merchant at 61, Mark Lane, under the firm of White & Price, demised to W. R. Fuller certain freehold premises at Southend, known as the Royal Hotel, Southend, for the term of thirty years from June 24, 1882, at the yearly rent of 1500l., payable quarterly. The lease contained the usual covenant for payment of the rent, and covenants by the lessee that he would not at any time during the term convert the premises into a C. A. 1897 March 23. C. A. 1897 WHITE V. SOUTHEND HOTEL COMPANY. private house, or use or suffer the same to be used for any other trade, profession, business, or purpose than an hotel and licensed victualling house; and would conduct the same in a proper manner, and afford no reasonable ground for refusing or withdrawing the licences. Then came a covenant in the following terms: "And the lessee doth hereby also covenant with the lessor, his heirs, and assigns that he, the lessee, shall not nor will during the term hereby granted buy, receive, sell, or dispose of, either directly or indirectly, nor suffer or permit to be bought, received, sold, or disposed of, either directly or indirectly, in, upon, out of, or about the said premises, or any part thereof, any foreign wines or any spirits, except gin, or other excisable liquors whatsoever, other than shall have been bonâ fide supplied by or through the lessor or his successors or successor, assigns or assign, provided the said person or persons shall be willing to supply the same of good and proper quality to the lessee at the fair current market price thereof." The lease also contained (inter alia) the following proviso:"Provided also and it is hereby agreed and declared, that so long as the lessee shall well and truly observe the covenant on his part lastly herein before contained not to buy, receive, sell, or dispose of, either directly or indirectly, nor suffer or permit to be bought, received, sold, or disposed of either directly or indirectly, in, upon, out of, or about the said premises or any part thereof, any foreign wines, or any spirits (except gin), or other excisable liquors whatsoever, other than shall have been bonâ fide supplied by or through the lessor or his successors or successor, assigns or assign, in manner aforesaid, then the lessor will allow to the lessee an abatement of 751. from each quarterly payment of the rent hereinbefore reserved; but immediately upon any breach of the said covenant such abatement shall cease.' Sir Thomas White died on March 8, 1883, having by his will (which was duly proved) devised all his real and personal estate not otherwise disposed of (which devise included the said freehold premises at Southend) unto the plaintiffs upon certain trusts, and having appointed them his executors. On July 9, 1883, the plaintiffs sold the business of a wine and spirit merchant formerly carried on by Sir Thomas White at Mark Lane to Messrs. T. & J. J. Curtis, who now carried on the same business under the firm of White & Price. On September, 25, 1883, Mr. W. R. Fuller, who had duly observed the covenant as to the purchase and sale of wines and spirits, assigned the lease of the hotel at Southend to the defendants. The defendants claimed that, so long as they continued to purchase their wines and spirits from Messrs. White & Price, they were entitled as of right under the proviso in the lease to a rebate of 75l. from each quarter's rent. The plaintiffs however contended that, upon the ownership of the wine and spirit business and the ownership of the reversion to the demised premises being severed, the covenant in the lease to purchase wines and spirits from Sir Thomas White, his successors or assigns, ceased to be operative, and consequently that the defendants were not entitled to the benefit of the proviso. This was an originating summons taken out by the plaintiffs in order to have the true construction of the lease determined by the Court. The summons was adjourned into court, and came on before Kekewich J. on January 14, 1897, when his Lordship made a declaration that according to the true construction of the lease the defendants were entitled to the abatement of the rent. The plaintiffs appealed. Farwell, Q.C., and Lyttelton Chubb, for the appellants. There is now no enforceable covenant as to the purchase and sale of wines and spirits, and as the covenant has ceased to be binding, and the burden of it is gone, the defendants are not entitled to the benefit of the proviso, which is to take effect only "so long as the lessee shall well and truly observe the covenant." Before severance the covenant might have run with the land. Now the business and the reversion are not going on together. It is no longer an advantage to the landlord to enforce the C. A. 1897 WHITE V. SOUTHEND HOTEL COMPANY. C. A. 1897 WHITE V. SOUTHEND covenant: Vyryan v. Arthur (1); Spencer's Case (2); Doe v. Reid. (3) Eve, Q.C., and Martelli, for the respondents. The negative covenant not to buy or sell, or suffer to be bought or sold, in or about the premises any foreign wines or spirits other than supplied by or through the lessor, his successors or assigns, is a covenant which runs with the land demised during the term, and is binding upon the assignee of the lessee, although he is not expressly referred to in the covenant; and, having the burden of the covenant, he is entitled to the benefit of the proviso, which was no doubt known to him and taken into consideration when the amount of his purchase-money was fixed: Tulk v. Moxhay (4); Clegg v. Hands (5); note to Hinde v. Gray and cases there mentioned (6); Tatem v. Chaplin (7); Fleetwood v. Hull (8); Redman and Lyons' Landlord and Tenant, 4th ed. p. 442. Independently of authority, it is a constant practice to buy hotels and public-houses for the purpose of treating them as "tied houses," and this was no doubt intended here. Primâ facie, a covenant of this kind would run with the land during the whole of the term; and here the words of the covenant support this construction; for the covenant is to operate in favour not only of the lessor, but of his "successors or successor," thus providing for a change of partnership, and his "assigns or assign" providing for a sale of the goodwill of the business. So that we are brought within the words of the clause. Farwell, Q.C., in reply. This was a covenant for the benefit of a particular business, and its true effect was as an affirmative covenant to buy from a particular firm, which covenant has by severance now become merely collateral. [He referred to Thomas v. Hayward (9) and Stevens v. Copp. (10)] LINDLEY L.J., after stating the facts of the case, and the terms of the covenant in the lease as to the purchase and sale (1) (1823) 1 B. & C. 410, 414. (3) (1830) 10 B. & C. 849, 856. (5) (1890) 44 Ch. D. 503. (6) (1840) 1 Man. & G. 208, n. (7) (1793) 2 H. Bl. 133. (8) (1889) 23 Q. B. D. 35. (9) (1869) L. R. 4 Ex. 311. (10) (1868) L. R. 4 Ex. 20. |