1862.

HALL against The CITY OF LONDON BREWERY Friday, Company, Limited.

June 6th.

Lease.

1. In a contract for the demise of land, a promise of quiet enjoyment Quiet enjoyduring the term is implied by law.

2. A declaration for breach of a covenant or contract for quiet enjoyment must allege an eviction by a person claiming title paramount.

THE declaration stated that heretofore, to wit, on the

29th October, 1860, an agreement of demise was made by and between the defendants and the plaintiff, whereby they agreed in the words and figures following (that is to say): "Memorandum of an agreement entered into the 29th October, 1860, between The City of London Brewery Company, Limited, by N. C., secretary, of the one part, and Edward Hall of the other part, as follows; viz. the said Company do hereby agree to let from this day unto the said Edward Hall All that messuage or tenement, with the appurtenances, known by the sign of The White Hart, situate in the Borough Market, in the parish of St. Saviour, Southwark, at a clear yearly rent of 501. of lawful British money, to be paid quarterly without deduction of any kind except in respect of income tax, and at the same rate for any period less than for a quarter of a year, the first quarterly payment to be made on the 29th January now next. And the said Edward Hall doth hereby agree to take the said house and premises upon the terms above mentioned, and to pay the said rent in manner aforesaid, and the land tax, metropolitan drainage rate and sewers rate, and all parliamentary and parochial taxes in respect

ment. Declaration. Breach.

1862.

HALL

V.

City of LONDON Brewery Company.

of the said premises, and to quit and surrender up the possession thereof unto the said Company, or their authorized agent, at any time hereafter upon the expiration of three calendar months notice requiring him so to do, whether such notice shall expire at the time of the year his tenancy commenced, or at any other period or day in the year. And the said Edward Hall doth hereby also agree that he will keep open the said house as a public house at the usual hours of business, and not suffer any other person to occupy the same, nor ask, demand or receive from any person any consideration or gratuity, directly or indirectly, by way of premium or goodwill for the same, nor in anywise injure or lessen the trade thereof, nor do or suffer to be done anything whereby the licence for selling beer shall be lost, forfeited or endangered, but will at all times use and occupy the said house properly as a licensed public house only; and also that, on quitting the same, he will assign over the beer and other licenses of the said house unto any person or persons whom the said Company may appoint, on being paid for the unexpired term therein; and also that he the said Edward Hall will, during all the time he shall occupy or retain possession of the said premises, purchase and keep a sufficient stock of porter, ale and beer for sale therein, of the brewing of the said Company and of none others, and also that he the said Edward Hall will not at any time alter or suffer to be altered the quality of such porter, ale or beer. And it is also agreed that no repairs or alterations of the said house and premises shall be allowed for unless made under the authority of the surveyor of the said Company. And it is mutually agreed between the said parties hereto that if either of them shall break or

infringe or refuse to comply with and perform any of the articles and agreements above mentioned on their respective parts to be performed (save and except such of the said articles and agreements as this present provision cannot legally or properly be applied to), then the party so breaking or refusing shall pay to the other of them, on demand, the sum of 300l., of lawful money of Great Britain, as liquidated damages hereby settled between the said parties for such breach or non-performance; and no abatement or relief shall be applied for to any Court of law or equity. And, lastly, it is agreed that the said Company, their successors and assigns, shall have power to distrain for the said rent upon any fixtures in the said house and premises, from time to time as often as the rent shall be in arrear, and to sell, dispose of and deal with such fixtures in the same manner in all respects as a landlord may sell, dispose of and deal with distrainable goods and chattels distrained and taken for rent in arrear. Witness the hands of the parties the day and year first above written." Averments. That by virtue of the said agreement of demise the plaintiff afterwards, to wit on the said 29th October, 1860, entered into and upon the said demised premises and became and was possessed thereof for the said term so to him thereof granted; and that the plaintiff had done all things necessary on his part to entitle him to have the quiet enjoyment of the demised premises for the term so to him thereof granted. The declaration then alleged that the plaintiff was, after the making the demise, and after his entry, and during the term, ejected from the demised premises by persons having title thereto, and had from thence hitherto been deprived of the possession, use, occupation and

1862.

HALL

V.

City of

LONDON

Brewery Company.

1862.

HALL

V.

City of LONDON Brewery Company.

enjoyment thereof; by means and by reason of which premises he wholly lost the goodwill and trade of the business of a licensed victualler which he carried on in and upon the demised premises, and was prevented from selling the same to one James Nash, and also by reason of the premises the plaintiff lost certain fixtures which he then had in and upon the demised premises, and was put to expence in obtaining another house and in removing thereto, and was otherwise injured: and that, after he was ejected and evicted as aforesaid, and by reason thereof and of the premises, the defendants became and were liable to pay to the plaintiff the said sum of 300%. in the agreement mentioned as and for such liquidated damages as aforesaid when they should be thereto requested: Yet the defendants had not, although requested so to do, paid to him the said sum of 300l. &c.

Demurrer, and joinder therein.

Bushby, for the defendants.-The declaration is bad on several grounds. First, it is not averred that the eviction of the plaintiff was by persons having title to the premises before or at the time of the lease to the plaintiff. [He cited Pargeter v. Harris (a).] [Beasley, contrà, referred to the form of declaration given in Precedents of Pleadings, by Bullen and Leake, p. 120, and to note 10 to Wotton v. Hele, 2 Wms. Saund., 177, 181, 6th ed. Wightman J. Suppose the tenant had made a sublease; according to the allegation in this declaration the eviction may have been by the sublessee, and consequently under a title derived from the plaintiff himself. Crompton J. The person evicting must shew good title by title paramount. Therefore this allegation is defective; but the Court would probably allow it to be amended.] (a) 7 Q. B. 708.

Secondly. Suppose the declaration amended in that respect, it is bad for not shewing a breach of agreement, inasmuch as a contract for quiet enjoyment is not necessarily implied in this demise; Note (c) to Wotton v. Hele, 2 Wms. Saund. 177, 178, 178 a, 6th ed. In Bandy v. Cartwright (a) the declaration alleged that one of the terms of the demise was that the plaintiff should, during the term, quietly enjoy the premises, and, this being traversed, the jury found for the plaintiff. [Crompton J. But the point whether a covenant for quiet enjoyment could be implied by law from a parol demise was reserved for the Court; and in the argument the following passage from 1 Shep. Touchst., by Preston, p. 165, 7th ed., was cited: "If one make a lease for years of land by the words 'demise or grant,' and there is not contained in the lease any express covenant for the quiet enjoying of the land; in this case the law doth supply [read, imply] a covenant for the quiet enjoying of it against the lessor, and all that come in under him by title, during the term." Cockburn C. J. And a promise which the law implies need not be set out in the declaration.] The decision in Bandy v. Cartwright conflicts with the judgment of Cresswell J. in Messent v. Reynolds (b). In the sale of a personal chattel there is no implied warranty of title; Morley v. Attenborough (c). [Cockburn C. J. We cannot overrule Bandy v. Cartwright; and it is inconsistent with common sense that, when a man is let into possession for a year, a promise by the lessor for quiet enjoyment against himself and all that claim by title under him should not be implied.]

1862.

HALL

V.

City of LONDON Brewery Company.

(a) 8 Exch. 913.

(b) 3 C. B. 194. 203.

(c) 3 Exch. 500.