1823. JONES บ. THORNE. six years, wanting ten days, assign or set over this indenture of lease, or any part of the said premises, without the licence and consent of the said T. P., his executors, &c. then and from thenceforth, in any or either of the said cases, it shall and may be lawful to and for the said T. P., his executors, &c. into and upon the said hereby demised premises, or into and upon any part thereof, in the name of the whole, wholly to re-enter, and the same to have again, retain, re-possess, and enjoy, as in his or their former estate; and thereout and from thence the said W. T., his executors, &c. and all other occupiers and tenants thereof, utterly to expel, put out, and amove, this indenture or any thing therein contained to the contrary thereof, in any wise notwithstanding." The defendant under this lease entered into possession of the premises, [and in September, 1821, he entered into a written agreement with the plaintiff, whereby, after reciting the former lease, he agreed to let the premises to the plaintiff for the residue of his term, from Michaelmas 1821, for a premium of 6507., and at a rent of 60l. per annum, “subject to the like covenants as in the said original lease," which sub-lease the plaintiff agreed to accept," and to indemnify and save harmless the said W. T. from all damages and expences, in case the said C. J. shall open the house as a licensed victualler." Pursuant to this agreement a lease was duly executed by the defendant to the plaintiff, and the premises have since been opened by the plaintiff as a public house, under a licence obtained by him previous to the execution of the lease, and of which the defendant had notice before he executed the lease. The question for the opinion of the Court is, whether by the granting the lease by the defendant to the plaintiff, and the opening the house as a public-house, or by either of those acts, the covenants and provisoes in the lease from Postlethwaite to the defendant, or any, or either of them, have or hath been broken. Marryatt, for the plaintiff. The real contest between these parties is, whether the defendant is liable to execute another lease to the plaintiff, and it is clear that the former lease having been forfeited, he is liable. The proviso in the original lease is, that no business shall be carried on in the house which "may be, or grow, or lead to be offensive." Now it cannot be doubted that the act of opening a public-house may grow or lead to be offensive, even it be not so in the first instance. Who, for instance, would choose to reside next door to a public-house, if he could avoid it? Of all the trades enumerated in the lease, there is none so likely to become a nuisance as that of a publican. A public-house is necessarily a place of public resort, and generally not of the most agreeable description; and it was evidently the intention of the lessor to prevent the house becoming a place of public resort of any kind. That intention is certainly defeated by the change which has been effected, and therefore the lease becomes void, [Bayley, J. Can we say that the covenant is broken until the business has become actually and positively offensive?] Certainly. The words of the lease are contingent and prospective; they prohibit any trade that is likely to become offensive, and the trade of a publican unquestionably is. [Best, J. Can we take judicial notice of the fact that a public-house is per se, likely to become a nuisance?] The Court will look to the intention of the parties when the lease was framed. It has been decided that a covenant "not to use, or exercise, or permit or suffer to be used or exercised, upon the demised premises, or any part thereof, any trade or business whatsoever," is broken by an assignment to a schoolmaster, who kept his school upon the premises, Doe v. Keeling (a); which is a much weaker and more general covenant than the present. [Best, J. A school is a business, and therefore fell within that covenant; it is also a very noisy business, and might more reasonably fall within the present covenant than a public-house. May not a pub(a) 1 M, & S. 95. 1823. JONES บ. THORNE, 1823. JONES V. THORNE. lic-house, if properly regulated, instead of a nuisance, be a very great convenience to the neighbours?] It never can be any other than "offensive;" its very nature, and the character of the persons likely to frequent it, necessarily render it so. The case of Doe v. Keeling was decided upon the principle of considering the intention of the parties; that principle will govern the Court here, and in concurrence with that view of the case, this lease is void. In addition to this, it is evident that the parties to the second lease thought it probable that the public-house might be considered a nuisance, because they inserted in it a covenant to indemnify the defendant in case he opened the house as such. Littledale, contrà. This is a question of fact, not of law, and more proper for the decision of a Jury than of this Court. A public-house may, or may not, be a nuisance, according to the mode in which it is conducted. It is to be observed, that the business of a publican is not one of those enumerated in the lease, and those which are there enumerated are actually in themselves trades, likely to produce annoyance, which a public-house certainly is not. The trades that are mentioned in the lease are all necessarily attended with smoke, smell, noise, public resort, or danger of fire; none of which evils are at all necessarily, nor generally attendant on the business of a publican. It is an old rule of law, and one which has never been broken in upon, that general words shall not extend to particular cases, The Archbishop of Canterbury's case (a); and the same rule of construction is well laid down by Holt, C. J., in the case of The Countess of Bridgwater (b). But if the construction contended for on the other side were to prevail, no trade of any kind could be carried on in the metropolis; for every trade may by mismanagement be rendered a nuisance in its immediate neighbourhood. If a public-house is to be considered per se a nuisance, then must a coffee(a) 2 Rep. 46. (b) 6 Mod. 106, house, or a tavern, be considered a nuisance also, however respectable in itself, and however respectably frequented. Marryatt, in reply. In the original lease there are additional words of prohibition, evidently meant to apply to those trades which are not specified, and therefore the rule of construction laid down in the cases just cited does not affect the present case. The only question is, what is the general tendency of a public-house, and universal experience answers that it is likely to be" offensive;" and upon that single point it is clear that the trade of a publican was intended to be excluded by the original lease (a). BAYLEY, J.-Your argument must go this length, that every public-house is, per se, and under any circumstances, a nuisance. Can we hold that to be law? I doubt not. We will, however, consider of the case, and certify our opinion to the Master of the Rolls. The following certificate was afterwards sent to the Master of the Rolls: This case has been argued before us, and we are of opinion that by the granting the lease by the said William Thorne to Charles Jones, and the opening the said messuage or tenement as a public-house, or by either of those acts, the covenants or provisoes contained in the lease have not been broken. J. BAYLEY, (a) Vide Spencer v. Marriott, ante, vol. ii. p. 665. 1823. JONES v. THORNE. 1823, to B. in Ame rica, to be NEALE, Widow, Administratrix of WHITTLE, deceased, v. REID and Another. 4. sells goods ASSUMPSIT for money had and received by the defendants, to the use of Conway Whittle, and upon an account stated with him. Plea, the general issue. At the trial before Bayley, J., at the London adjourned Sittings after Trinity Term, 1820, the plaintiff had a verdict, damages 31711., subject to the opinion of the Court upon the drawn by B. in following case. shipped for an European port, and paid for by bills in different sets, and at different dates, favor of A. upon C. and Co. a mercan London, D. is appointed supercargo and joint-trustee by A. and B. tile house in for securing remittances to On the 22d January, 1800, the deceased Conway Whittle, and John George Williams, being at Norfolk in Virginia, Whittle sold to Williams 1771 boxes of sugar, for the price of 27,2017. 17s. 8d., on the terms, that the same should be shipped and consigned from thence on board the ship Martin for Lisbon, and should be paid for by bills of exchange, to be drawn by Williams on the defendants, payable to the order of Whittle; and for the better security of Whittle, it was agreed that John Davidson should proceed with the sugar as supercargo, on the terms hereafter expressed to have been indorsed on the bill of lading. The sugar was and Co. of the shipped accordingly, and Williams, in payment for the who effect in- same, drew bills of exchange on the defendants, in three surance upon distinct sets, each set for 90677. 5s. 10d., being one third the cargo, by the house in London, for the honor of the bills. The goods being shipped for Europe, B. and D. respective ly advise C. transaction, B.'s directions, and at his expence. The ship in her voyage is captured, and B. abandons the cargo to the underwriters as for a total loss, the amount of which is paid to C. and Co. in London, who place it to the credit of B. The London house honor the first set of bills before any fruits are received from the policy, and advise 4. of that fact, in consequence of a letter received from him upon the subject of the bills, informing him that they could then say nothing about the other bills, as the fate of them would depend (not being accepted) upon the state of B.'s account when they became due, with an assurance, however, that they would do every thing they could with propriety, to further the views of all parties. By a subsequent letter, they advise him of the payment of a second set, stating that they did not know what would be the fate of the third, which had not then appeared for acceptance; but that they would do all they could to prevent loss to the parties; part of the remaining set of bills is subsequently paid, but the rest is refused payment by C. and Co. bankrupt, and C. and Co. account with him prior to, and with his assignees, subsequent to his bankruptcy, for all the money ever received by them on his account. B. becomes under B.'s commission, a dividend upon the bills remaining unpaid, and for the balance his administrator brings an action for money had and received, against C. and Co.:Held, that the action was not maintainable. A. receives |