shipper, or for the benefit of the shipper only, could not be excused by reason of insignificant delay not amounting to deviation, and there are many cases of reasonable delay in ports of call, for purposes connected with the voyage, though not necessary for its completion, which do not amount to deviation. It could not be insisted upon if a deviation were involved. The place, the season, the extent of the deterioration, the opportunity, and means at hand, the interests of other persons concerned in the adventure, whom it might be unfair to delay for the sake of the part of the cargo in peril; in short, all circumstances affecting risk, trouble, delay and inconvenience, must be taken into account. Nor ought it to be forgotten that the master is to exercise a discretionary power, and that his acts are not to be censured because of an unfortunate result, unless it can be affirmatively 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 from hour to hour, that such a cargo, therefore, if damp, ought to be dried, if reasonably possible, and not sent on in a state of fermentation. It must be taken from the finding as to particular average, that such drying would have been a reasonable and prudent course in the interest of the shippers, and one which they would have been sure to take if they had been owners of the whole adventure. The facts stated are all in favour of the conclusion that the beans might have been dried during an insignificant delay, at a moderate expense, which there would have been no difficulty in providing from or upon the credit of the shippers; and no circumstance is stated to shew any special risk, trouble, inconvenience or other objection. The master thought proper, as he was entitled to do, to reject the offer of the shippers to take the beans out of his hands upon terms not unreasonable, and insisted, as he was entitled to do, upon keeping them in pledge for the

future freight; and, having done so, he thought proper to reship and replace a large part of them, and put to sea with them in a state in which no prudent or reasonable man would have shipped or put to sea with them, taking the risk of their arriving at Glasgow just in the state of beans, so as to carry full freight for the shipowners, but largely deteriorated by the fermentation during the transit. We thus agree with the Court below, that the duty exists in law, and that, under the circumstances, the breach of duty is sufficiently made out in fact, and that the defendants, as shipowners, are liable in damages. The judgment of the Court of Queen's Bench must therefore be affirmed.

Judgment affirmed.

Attorneys-Gregory, Rowcliffes & Rawle, agents for Duncau, Squarey & Co., Liverpool, for plaintiffs; Markby & Tarry, for defendants.

[IN THE EXCHEQUER CHAMBER.] 1871. June 14. 1872. Feb. 16.

DENNETT v. ATHERTON.

Landlord and Tenant-Covenant for Quiet Enjoyment-Sub-lessee without Notice of Restrictive Covenant.

In a conveyance in fee of land to the defendant he covenanted with the grantor not to permit any part of the premises to be used for selling beer. The defendant afterwards granted a lease of part of the land, with covenants by the lessee not to carry on certain trades, but not mentioning that of a seller of beer, and with the usual covenant by the lessor for quiet enjoyment. The term was assigned to the plaintiff, who having no notice of the defendant's restrictive covenant used the premises as a beershop, and being restrained by injunction in Chancery, at the suit of the vendor of the fee, sued the defendant for breach of the express covenant 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 enjoy ment 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 covenant.

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; 8. c. 18 Law J. Rep. (N.s.) Chanc. 83.

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

The Court would appear to have considered that Spencer v. Marriott (3) was in point, where there was a lease of premises with a clause of re-entry if they were used for any public business, and the lessee sublet them, covenanting for quiet enjoy ment, but without giving notice of the restrictive covenant in the head lease. It was held that an action could not be maintained on this covenant for a forfeiture incurred by the act of the person in possession, who used the premises as a place of business, for this could not be considered as an eviction or interruption by the lessor. But it appears from the report of the case in Dowling v. Ryland's Reports (4), that the defendant was not the original lessee, but only an assignee of the lease, so that the forfeiture could not be said to be the result of a breach of duty on his part in not informing the plaintiff of the restrictive covenant.

(MARTIN, B.-How can the interference by the freeholder be said to be a disturbance by the lessor or any one claiming through him? The title of the freeholder is above that of the lessor.]

The burthen imposed on the lessee in favour of the freeholder is the act of the lessee. In Wickham v. Hawker (5), where the right to the game was reserved, it was held that this was not a reservation but a re-grant by the lessee to the lessor. He also cited 2 Sugd. V. & P., 10th ed., 512, 514; Butler v. Swinnerton (6); Calvert v. Sebright (7).

Prentice (Finlay with him), for the defendant. The case of Jackson v. Cobbin (8) is a distinct authority that a promise cannot be implied from the mere fact of a lessee having entered into an agreement for an under-tenancy that he has power to let without restriction as to the purposes for which the premises are to be used. The plaintiff's case, therefore, must rest upon the express covenant for quiet enjoyment, and of this there has been no breach. The opening of the beer-shop

was the plaintiff's own act, and there was nothing in the lease to authorize it. If he had wished to secure himself he should either have investigated the title, or have obtained a covenant that he should be at liberty to use the premises for the purpose which he had in view. Whatever difference there may be as to the facts in Spencer v. Marriott (3), the ground of the decision was that the forfeiture was not increased by any act of the lessor. The case is treated as an authority in Sugden's V. & P., 14th ed., 602; Dart's V. & P., 4th ed., 717. Cur. adv. vult.

The judgment of the Court (9) was (on Feb. 16, 1872) delivered by

WILLES, J.-This was an action for the breach of a covenant for quiet enjoyment, alleged to be expressed or implied in a lease of a house, which was used as a grocer's shop when let, and which the tenant turned into a beer-house. The alleged breach consisted in a decree in a Chancery suit, founded upon a covenant by the lessor with the person from whom he obtained the property, that the house should not be used as a beer-house, by which decree the tenant was restrained by injunction from so using it, and lost his expenses, profits and costs. The foundation of this decree was that the Court of Chancery imputed to the tenant a constructive knowledge of the title of his landlord, and the restraint upon him, upon the ground that he need not have become tenant without investigating the title, and that having done so, he could claim no greater right than his landlord. Whether this extension of restrictions upon the use of property other than in leases be sound or not, it is not for us to determine. At the common law the benefit of covenants made upon a purchase runs with the land, but not the burthen, except in the case of a lease, where the assignee would, as a matter of course, refer to the lease itself and find the restriction set down. We must take it, however, as established that the Court of Chancery has imposed this new

(9) Kelly, C.B.; Martin, B.; Willes, J.; Channell, B.; Byles, J.; Keating, J.; and Cleasby, B.

burthen upon the use of property, and that its authority has been lawfully exercised in the present case. The question therefore is, whether a decree in Chancery restricting a particular use of the land by reason of a covenant of the lessor, but not otherwise interfering with the title, be a breach of the covenant for quiet enjoyment. In deciding this we must remember that there is no suggestion of fraud, and that the covenant must have the same effect in the case of a tenant who knew as in the case of a tenant who did not know of the restriction. All the argument upon the hardship of the case is therefore irrelevant. Now there can be no doubt that a proceeding of the Court of Chancery or of a Court of common law interfering with the title and possession of the land does amount to a breach of the covenant for quiet enjoyment, as in case of dower, common, rent, or such like-Calthorp v. Heyton (10), Hunt v. Danvers (11). On the other hand, it has 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 with or without a partially restrictive covenant, has therefore been regarded as a covenant to secure title and possession, and not to guarantee to the tenant that he may lawfully use the land for any purpose not in his restriction. To give it a wider effect might involve some strange consequences. If a seller or lessor had worked out mines, and the purchaser or lessor were to build a house, which sunk into the old workings, here would be a breach at once. In other words, a warranty would be read in that the land was capable of being used for any purpose, or for any purpose not expressly excluded. This would be a novelty in itself and inconsistent with the settled rule, that a covenant for quiet enjoyment excludes all inferences of an implied covenant for title, which in the absence

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

statute

of an express covenant, however limited, possibly the word "demise" might be relied upon to raise, notwithstanding the - Noke's Case (13). For these reasons we think Spencer v. Marriott (3), where an expulsion by the head landlord for breach by an act of the under-lessee of a covenant in the head lease as to the use of the premises of which the underlessee had no notice, was held to be no breach of a covenant for quiet enjoy. ment in the under-lease, and which case this appeal seeks in effect to over-rule, was rightly decided, according to the established course of precedents, and that there is no ground in reason for setting it aside. The judgment must therefore be affirmed.

Judgment affirmed.

Attorneys-Loxley & Morley, for plaintiff; R. Wilson, for defendant.

1872. Jan. 24.

THE QUEEN v. THE JUSTICES OF
STAFFORDSHIRE.

Order of Removal — Appeal — County Quarter Sessions-Borough Quarter Sessions-Jurisdiction to hear Appeal.

Where a pauper becomes chargeable in a union which includes a borough having a separate Court of Quarter Sessions, the guardians may obtain an order for the removal of such pauper to his place of settlement from the justices of the borough, although the particular parish from which he is to be removed is not within the borough, and, in such case, the proper tribunal to hear an appeal against the order is the quarter sessions for the borough, and not the quarter sessions for the county.

[For the report of the above case, see 41 Law J. Rep. (N.S.) M.C. p. 78.]

Attorney and Solicitor - Liability for Negligence-Duty to Register lis pendens -2 & 3 Vict. c. 11. s. 7.

In an action against a solicitor for negligence, the declaration stated that the plaintiff was equitably interested in fourth-tenth parts of the lease of a colliery, that the lessee had entered into negotiations for the sale of the lease to a company, and that the plaintiff retained the defendant, as solicitor, to file a bill in Chancery against the lessee and the company for the purpose of enforcing the plaintiff's claim in respect of his shares, and praying that the lessee might convey and secure to the plaintiff four-tenths of the purchase money, and that the company might be decreed to do all things necessary to confirm such conveyance and security and might be enjoined from paying the plaintiff's proportion of the purchase money to the lessee. Breach that the defendant did not register the bill as a lis pendens according to 2 & 3 Vict. c. 11. s. 7, whereby the plaintiff was enabled to dispose of the lease to another company and to receive the purchase money, and the plaintiff was deprived of his share in it:-Held, that the declaration was good, as the bill in Chancery which prayed for an equitable lien against the intended purchasers of the lease was a lis pendens, which ought to have been registered under the statute, and that having regard to the terms of the bill it was the duty of the defendant as a solicitor to have registered it, without any express request on the part of the plaintiff.

Declaration-That before and at the time of the retainer and employment of and of the committing of the grievances by the defendant as hereinafter mentioned the defendant was a solicitor, and the plaintiff was interested in and equitably entitled to four-tenth parts or shares of the benefits to be derived from a lease of a colliery and plant called the Shoreoaks Colliery (granted by the Duke of Newcastle to one James Nugent Daniell), and of the profits which might be derived from the sale or disposal of the 'ease of the colliery and plant by Daniell, and Daniell had entered NEW SERIES, 41.— Q.B.

into a negotiation for the sale and disposal of the lease, colliery and plant to a company called the Shoreoaks Colliery alleged and claimed that the said fourCompany (Limited), and the plaintiff tenth parts or shares of the benefits aforesaid were provided for by and mentioned in an agreement made by and between the plaintiff and Daniell, dated the 18th of December, 1863; and the plaintiff before and at the time, &c., had retained and employed the defendant as and being such solicitor for reward, to institute and prosecute, and in and about the instituting and prosecuting a bill of complaint in the Court of Chancery on behalf of the now plaintiff against Daniell and the Shoreoaks Colliery Company (Limited), for the purpose of asserting, enforcing and protecting the plaintiff's interests and claims in respect of the parts or shares of the benefits and profits aforesaid, and in and by which bill of complaint the plaintiff prayed, amongst other things, that Daniell might be decreed specifically to convey and secure to the plaintiff four equal tenth parts of the purchase money and shares or other consideration agreed to be paid or given by the Shoreoaks Colliery Company (Limited) for the colliery, lease, plant and other things, and that the Shoreoaks Colliery Company (Limited) might be decreed to do all things necessary to confirm such conveyance and security to the plaintiff. Secondly, that Daniell might be decreed to account for and pay or transfer to the plaintiff four equal tenth parts of such purchase money and shares in the bill mentioned or other consideration as he had already received from the company. Thirdly, that the company might be decreed to pay and transfer to the plaintiff four equal tenth parts of the consideration money and shares or other consideration money remaining unpaid, and might be restrained by the injunction of the Court of Chancery from paying such four-tenth parts to Daniell or any other person than the plaintiff or as he should direct, and that Daniell might be restrained by like injunction from receiving such four-tenths. Fourthly, that Daniell might be decreed to account for and pay to the plaintiff four equal

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