[IN THE EXCHEQUER CHAMBER.] (Error from the Court of Queen's Bench.) 1871. Nov. 27.

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COATES AND ANOTHER V.
COLLINS.

Covenant-Lease for Lives-Lapse of one Life-Warranty of Title.

The defendant assigned by deed a lease for the lives of W., J. and H., to hold for the lives of W., J. and H., and the survivors and survivor of them, and covenanted that the lease 66 was a good, valid, and subsisting lease in the law for the lives of W., J. and H., and the survivors and survivor of them, and was not forfeited, surrendered, or become void or voidable." It was proved that J. had died before the making of the deed:Held, by the Exchequer Chamber, affirming the decision of the Queen's Bench, that there was no breach of the covenant, as the defendant only undertook that the lease was subsisting, and not that the three lives were in existence at the date of the covenant.

Error from a decision of the Queen's Bench reported 40 Law J. Rep. (N.s.) Q.B. 157, where the pleadings are fully stated.

The declaration was upon a deed, by which the defendant assigned a lease for three lives to the plaintiff's predecessor in title. The. habendum was to have and hold the premises unto C. (the plaintiff's predecessor in title), "for and during the lives and life of W., J. and H. (the three lives), and the lives and life of the survivors and survivor of them." Then followed a covenant by the defendant, that the lease "is a good, valid, and subsisting lease in the law for the lives of W., J. and H., and the survivors and survivor of them, and is not forfeited, surrendered, or become void or voidable." The breach of covenant relied upon was that J. (one of the lives) had died before the execution of the deed. The majority of the Court of Queen's Bench (Blackburn, J., and Mellor, J.), on demurrer to a plea setting out the deed, held that the fact that one of the lives had dropped at the date of the deed, was no breach of covenant-Lush, J., dissenting from the decision.

J. Brown, for the plaintiff, in error, contended, as in the Court below, that, according to the ordinary meaning of

the words, the covenant was to the effect that the three lives were in existence at the date of the deed.

[WILLES, J., referred to Basket v. Scot (Rolle's Abridgment, vol. ii. p. 249, Parolls), the case of a lease for years to A. determinable on the lives of B., C. and D., and A. assigns the lease to E. after B.'s death, and E. by indenture reciting the lease and the death of B., and the assignment to him, assigns the term to F., and covenants that he is law. fully possessed of the premises for the residue of the term, "if the said C. and D., or either of them, shall happen so long to live, and they, the said C. and D., are yet in full life," it was assigned as a breach that C. was dead at the time of the assignment, and was held that though the words were not, "and (that) the said C. and D. are yet in full life," that this was implied from the words, otherwise the covenant would be of no effect.]

There is nothing to shew that the parties intended that the words as to the lives should be mere matter of description. He cited Barton v. Fitzgerald (1).

Manisty (Lord with him), for the defendant.

J. Brown, in reply.

KELLY, C.B.-But for my brother Lush's opinion, which is always entitled to great respect, I should have thought this case entirely free from doubt. The action is brought upon a covenant by the defendant in July, 1853, that a lease which he then assigned to the plaintiff's predecessor in title, was predecessor in title, was "a good, valid, and subsisting lease in the law for the lives of W. Walker the younger, W. Jones, and R. Heath, and the survivors and survivor of them, and was not forfeited, surrendered, or become void or voidable." Now it appears to me, that the words in this covenant, "survivors and survivor of them," are merely words of description, and were intended to shew that the lease assigned was for the lives of three persons, and the survivors and survivor of them. If there could have been any doubt about the meaning of the words, it is removed by those which follow, in which the defendant cove(1) 15 East 530.

nants that the lease is not forfeited, surrendered, or become void or voidable. If we refer to the practice of conveyancers, I do not think that in a case where it is intended to covenant that the lives are in being, that a single precedent can be found which does not contain an express covenant to that effect, which is generally in brackets, in order that it may be used or omitted according to the intention of the parties. It has been suggested that when we look at the habendum, it is to hold the premises for the lives and life of the three persons, and the lives and life of the survivors and survivor of them. But I do not think that this carries the matter any further. The simple question is, whether what is not expressed can be implied, and I think that it cannot. The learning of my brother Willes has discovered a case in Rolle's Abridgment, which is a direct authority in favour of our view. I am, therefore, of opinion that the judgment of the Court below. should be affirmed.

WILLES, J., CHANNELL, B., KEATING, J., PIGOTT, B., and CLEASBY, B., concurred. Judgment affirmed.

Attorneys Stocken & Jupp, agents for R. Blanchard, Southampton, for plaintiff in error; Routh & Stacey, for defendant in error.

The agents of the defendants at Chili having purchased a quantity of nitrate of soda, and chartered the vessel "Precursor" to convey it to England, the defendants contracted to sell to the plaintiff "600 tons, more or less, being the entire parcel of nitrate of soda, expected to arrive at port of call per 'Precursor.' . . . Should any circumstance or accident prevent the shipment of the nitrate, or should the vessel be lost, the contract to be void." At the date of the sale the greater part of the nitrate of soda intended for shipment had been destroyed by an earthquake. The charter-party was subse

quently cancelled, and notice of this fact was in due course forwarded to the plaintiff. The agents of the defendants afterwards purchased a like quantity of nitrate of soda on account of the defendants, and obtained a transfer of a second charter-party made between the vendors and the owners of "The Precursor" for the conveyance of the second parcel of nitrate of soda to England. Upon the arrival of the cargo in this country, the plaintiff laid claim to it under his contract:-Held, affirming the decision of the Court of Queen's Bench, that the contract related only to the nitrate of soda which was then expected to be carried by the particular voyage, and that upon this voyage being rendered impossible, the liability of the defendants was terminated, and the plaintiff had no claim to the cargo subsequently purchased.

Appeal from a decision of the Queen's Bench, reported 39 Law J. Rep. (N.S.) Q.B. 210, where the facts are so fully stated that it is unnecessary here to add anything to the statement already given in the above head note.

R. G. Williams (Quain with him), for the plaintiff, repeated the arguments urged in the Court below.

Milward (Baylis with him), for the defendants, was not called upon to argue.

KELLY, C.B.-I am of opinion that the judgment of the Court below should be affirmed. The question is, whether the contract relates to a specific parcel of nitrate of soda, which the defendants at the time of the contract knew to have

been purchased by their foreign agents, or whether it relates to any similar quantity of soda which might subsequently have been purchased by these agents and arrived in England on board The Precursor. I am decidedly of opinion that it relates. to the parcel of soda which in August, 1868, was intended to be conveyed and was expected to arrive by The Precursor. The sale note commences "Sold on account of Messrs. W. J. Myers, 600 tons, more or less." If the words had stopped there, the contract would have been satisfied by the delivery of six hundred tons of any such soda. But the note goes on to give a description of what is pur

chased, "being the entire parcel of nitrate of soda expected to arrive at port of call per Precursor." Then follows the proviso, "Should any circumstance or accident prevent the shipment of the nitrate, or should the vessel be lost, this contract to be void." Suppose that besides the soda which was intended to be shipped, and which was destroyed, there had been an additional quantity of 600 tons of the soda already on board The Precursor, and which ultimately reached England, could the plaintiff have claimed it under his contract? I decidedly think that he could not. Now it is true that the accident by which the soda intended for shipment by The Precursor was destroyed occurred before the making of the contract of sale, but it can make no difference in this case whether it took place before or after the contract. I cannot think that the plaintiff could claim anything but the soda which had been collected for shipment, and which, as it turned out, was destroyed, and therefore there was no cause of action against the defendants.

WILLES, J.-I am of the same opinion. I wish to say, though I agree with the judgment of the Chief Baron, that I desire to express no opinion upon the question whether if after the accident The Precursor had arrived with 600 tons of soda and several parties had claimed it, the plaintiff would have been entitled to it under his contract. My impression is that what the shippers stipulated for, was that in case of accident the shipment should be excused, and no property pass to the plaintiff.

CHANNELL, B., KEATING, J., and PIGOTT, B., concurred.

CLEASBY, B.-I am of the same opinion. The cargo which arrived in May, 1869, was not the cargo which was expected to arrive in September, 1868.

Judgment affirmed.

Attorneys-Blaxland & Son, agents for Abbott & Leonard, Bristol, for plaintiff; Walker & Sons, for defendants.

1871. Nov. 18.

THE QUEEN ON THE PROSECU-
TION OF THE MUTUAL TONTINE
WESTMINSTER CHAMBERS AS-
SOCIATION v. THE ASSESSMENT
COMMITTEE OF THE ST. GEORGE'S
UNION.

Poor Rate-Mode of Assessment-Blocks of Buildings-Sets of Rooms--General Assessment Sessions-32 & 33 Vict. c. 67.

Certain blocks of buildings, with separate entrances to a public street, were divided respectively into two ranges by an internal staircase, having one door at the street entrance. The blocks were structurally divided into 117 different sets of rooms, distinct from each other, and capable of being let and occupied separately as residences or offices. Each set had an outer door opening on to one of the internal staircases. The sets of rooms were let severally in writing by the owners, to certain tenants for a year, and then on from quarter to quarter, with power to the lessors to enter for certain specified purposes, and to resume possession on non-payment of rent, &c. And under these agreements the care of each entrance (locked at night) and the rooms connected therewith were in the charge of a porter (resident in a basement set of each block), appointed and removeable by the appellants; there were duplicate keys to the outer door of every set of rooms, one of which was always in the hands of the porter, the other in the care of the tenant while the rooms were in use; and the tenants had the right, free of charge, to the general services of the porter, and to special services, the latter to be rendered as the servant of the tenant: -Held, that the sets of rooms ought to be valued, in the valuation list of the union, as distinct separate rateable hereditaments.

[For the report of the above case, see 41 Law J. Rep. (N.S.) M.C. 30.]

1872. LLOYD AND ANOTHER v. SPENCE. Jan. 11. J SAME v. FLEMING.

Marine Insurance-Assignment of Policy after Loss-Pleading-Right of Assignee to sue in his own Name-31 & 32 Vict. c. 86. 8. 1.

By the first section of 31 and 32 Vict. c. 86, it is provided that "whenever a policy of insurance on any ship, or on any goods in any ship, or on any freight, has been assigned, so as to pass the beneficial interest in such policy to any person entitled to the property thereby insured, the assignee of such policy shall be entitled to sue thereon in his own name : "-Held, that this provision is not confined to cases where the policy is assigned before the loss along with the goods, but also applies to a policy upon goods assigned after loss, and therefore that the assignee of such a policy so assigned may sue upon it in his own name.

Action by the plaintiffs' executors of the last will and testament of William Entwistle, deceased.

Declaration, for that by a certain policy of insurance, bearing date the 17th of October, 1860, certain persons trading

or

and known under the firm of Robinson and Fleming, did and as agents, as well in their own names, as for and in the name and names of all and every other person or persons, to whom the same did, might, or should appertain in part or in all, make assurance and cause themselves and them, and every of them, to be insured, lost or not lost, at and from Rotterdam to Batavia, on 802 boxes of steel valued at 800l., in the ship Twee Anthonys, beginning the adventure from the loading of the said goods on board the said ship as above, and continuing until the same should be at Batavia aforesaid discharged and safely landed, against perils of the seas, &c. That the defendant, in consideration of a certain premium to him paid in that behalf, by certain persons interested in the said goods, and whose interest in the said goods is hereinafter averred, underwrote the said policy for 1007., and became an insurer thereon to the said persons for that amount on the said goods. That the said goods were shipped on board the said ship at Rotterdam aforesaid, to be carried therein on the said voyage,

and certain persons hereinafter referred to, that is to say, Julius Frederick Sichel, Silvester Emil Sichel, and Josias Bracker Canning Alexander, or some or one of them, were or was, then and thence, and until at the time of the happening of the loss hereinafter mentioned, interested in the said goods to the amount of all the moneys by them insured thereon, and the said policy was made by authority, and for account and benefit of the said persons so interested, and the said ship with the said goods on board sailed on the said voyage, and while she was proceeding on the said voyage, the said ship was stranded, and the said goods were, by the perils insured against, injured, damaged, and lost. That by reason of the said loss and misfortune the assured did, by their factors and servants, sue, labour and travel, for, in, and about the defence, safeguard, and recovery of the said goods, and therein and for that purpose did necessarily lay out and expend divers large sums of money, and after the said loss and misfortune and the said expenditure had been incurred as aforesaid, the said policy of insurance, together with all rights accrued under and by virtue thereof, was by the said Julius Frederick Sichel, Silvester Emil Sichel, and Josias Bracker Canning Alexander, for good consideration to them moving from the aforesaid William Entwistle, duly assigned to the said William Entwistle in his lifetime, whereby, and by reason of the premises, the defendant became liable to pay to the plaintiffs as such executors of the said William Entwistle deceased as aforesaid, a large sum of money, and all things have been done and happened, and all times have elapsed necessary to entitle the plaintiffs, as such executors, to be paid the said sum of money, yet the defendant has not paid the

same.

Demurrer and joinder in demurrer. (1) The demurrers were argued (on Nov. 28) by F. M. White, for the defendants, and by Holker (Mac Lachlan with him), for the plaintiffs.

(1) The declaration in the case of Lloyd v. Fleming was similar, and the question raised by the demurrer was the same.

They referred to the 31 & 32 Vict. c. 86, and to the 18 & 19 Vict. c. 111.

Cur. adv. vult.

The judgment of the Court (2) was (on Jan. 11, 1872) delivered by

BLACKBURN, J.—In each of these cases, the declaration is by the executors of William Entwistle against the underwriters on a policy of marine insurance on goods.

The declaration states a loss by the perils insured against, and then avers that, after the loss, "the said policy, together with all rights accrued under and by virtue thereof, was by the assured, for good consideration to them moving from the said William Entwistle, duly assigned to him in his lifetime."

To this, there is a demurrer on the ground that the action cannot be maintained in the name of the assignee.

It is clear that, before the statute 31 & 32 Vict. c. 86, it could only have been maintained in the name of the original. contractor, but, by that Act, after reciting generally that "it is expedient that the assignees of marine policies of insurance should be enabled to sue thereon, in their own names, enacts that "wherever the policy of insurance on any ship, or on any goods in any ship, or on any freight, has been assigned so as to pass the beneficial interest in such policy to any person entitled to the property thereby insured, the assignee shall be entitled to sue in his

The argument in support of the demurrer was that this enactment was confined to cases where the policy is assigned before the loss along with the goods; and in support of this, the words, "entitled to the property," were relied on, as it was said the assignee after a loss could not be so entitled, but we do not think that such was the intention of the legislature, nor do we think the words cited have that effect.

A policy of marine insurance is a contract of indemnity against all losses accruing to the subject matter of the policy from certain perils during the adventure. This subject matter need not

(2) Blackburn, J.; Mellor, J.; and Lush, J.