surrender of all the plaintiff's interest, and was not intended so to operate; and inasmuch as V., the defendant, not being a party to the agreement, might, at the expiration of T's lease, have entered for the residue of his term and repaired. Held, also, that the declaration was good, inasmuch as the plaintiffs were entitled to the whole reversion which remained, and were not prevented from suing as assignees under stat. 32 Hen. 8, by reason of the partial merger of the term. Action of covenant for non-repair. 18th June 1751, and stated in the declaration in action, that the said action shall be compromised, and settled on the following terms:-First, the said M. E. T. and H. T. hereby, for themselves jointly and severally, and for their respective executors and administrators, agree with the said plaintiff to pay him the sum of 3007. on Monday the 15th day of this present month of July. Secondly, the above-named defendants, for themselves as trustees of the property of the late Sir Wm. Garrow, their executors and administrators, agree to pay to the above-named plaintiff the sum of 2007. on or before the 12th Oct. next. Thirdly, the said M. E. T. and H. T. hereby for themselves jointly and severally, and for their respec tive executors and administrators, agree to pay the plaintiff his costs of the above-mentioned action as between party and party, including the costs incurred for a special jury one week after the same shall have been taxed, &c. Fourthly, the said M. E. T. and II. T. for themselves jointly and severally, and for their respective executors and administrators, agree to pay to the plaintiff within fourteen days all arrears of rent due on the said lease up to the 24th June last.. Fifthly, the said M. F. T. and H. T. for themselves jointly and severally, and for their respective execntors and administrators, agree to deliver or cause to be delivered to the plaintiff, within one week from this time, the possession of the property demised by the lease stated in the declaration, and the defendants to deliver or cause to be delivered to Mr. W. H. Frampton, of Gray's-inn, London, within fourteen days from this time, the said indenture of lease in trust for the benefit of the plaintiff, but to be from time to time produced by Mr. Frampton for the purpose of supporting any claim or claims to be made by the defendants or either of them on John Vigurs or any other person or persons whomsoever for the recovery of any rent or arrears of rent of or relating to the premises in question due or to become due to the said defendants, or contribution, indemnity, or compensation in respect of any moneys to be paid by the defen dants, or either of them, under this present agreement or otherwise, in respect of the liabilities of the defendants under the lease mentioned in the declaration, or for any damages under or by virtue of any covenants contained in any under-lease or under-leases of the said premises or any part thereof; and that when all such claims shall have been satisfied, or in any manner put an end to, the said W. H. Frampton shall deliver the said lease to the plaintiff; and also that the said M. E. T. and H. T., or one of them, shall and will, at the request of the plaintiff, or the person or persons entitled to the remainder of the premises comprised Pleas-First, payment into court of 18., except as to in the said lease stated in the declaration, executa the breach for not surrendering up at the end of the and procure to be executed by all proper parties a term, &c. Secondly, as to the breach excepted, that good and valid legal surrender or assignment of the the said leasehold premises were demised by deed by said lease; and the said defendants hereby agree to John Llewellyn the elder and John L. the younger to concur in surrendering or assigning their estate and R. Pytt and T. Lewis for ninety-nine years, from interest in the said lease, as the plaintiff or the person 25th Dec. 1750, with liberty to build, &c., and coveor persons entitled in reversion may require and nants to repair, and to surrender at the end of the counsel shall advise. Sixthly, that the said cause hath term in good repair; that, after certain buildings had by consent been made a remanet, and the said plainbeen erected, the same term came by assignment to tiff shall not proceed further in the said cause, unless Sir W. G., and is the same mentioned in the declara- default shall be made in payment of the said costs as tion; that J. V. and L. S. demised the said leasehold aforesaid, or in the performance by the defendants of premises by deed to G. Tennant for twenty-three some one or more of the foregoing stipulations to be years, from 25th June 1825, upon like covenants; performed on their part, in which case he is to be at that G. T. entered and afterwards died, and his estate liberty to proceed to trial therein at some future vested in Margaret Elizabeth T., his widow and exe-assizes. Seventhly, the sums above agreed to be paid cutrix. That, after the assignment to the plaintiffs to the plaintiff, are, when paid, to be accepted by him and to L. S., and after his death and the death of in full satisfaction of all claims and demands whatG. T., an action of covenant was brought in the Exch. soever, under and by virtue of the said lease, for by one J. D. Lewellyn, then entitled to the reversion, dilapidations, rent, or otherwise howsoever. Eighthly, against the now plaintiffs as assignees of the covethat each party shall bear his own costs of these vant by R. Pytt and T. Lewis; in which action issue presents. Witness the hands of the above parties this was joined; but, before trial, the following agreement 12th day of July 1844. And the defendant further in writing was at the request of the now plaintiffs, but says, that the said action was then settled and put an without the privity or consent of the said J. V. entered end to on the terms in the said agreement specified; into between J. D. Llewellyn, Esq. plaintiff, and Edward and that afterwards, in pursuance of the said agreeBadely and William N. Lettson, Esqs., defen-ment, and at the instance and request, and with the dants:-It is hereby mutually agreed by and between privity, assent, and procurement of the now the above-named plaintiff and defendants, and also Margaret Elizabeth Tennant, widow, and Henry Tennant, Esq., who are respectively interested in the property comprised in the indenture of lease of the said J. V. bargained, sold, assigned, transferred, and set over all the estate and term of years then to come of him the said J. V. of and in the said leasehold premises, to hold the same to the said L. S., his executors, administrators, and assigns, thenceforth during all the then residue of the said term of twentyfive years and one quarter of a year, whereupon and whereby the said term so to the said J. V. and L. S. granted as aforesaid, as to one undivided sixth part of and in the said leasehold premises, merged in the said reversion of and in the said three sixth parts The declaration alleged that Sir William Garrow, whereof the said L. S. and the plaintiffs were so posknight, before and at the time of the making of the sessed as aforesaid; and thereupon the said plaintiff's indenture of demise hereinafter mentioned, was law-became and were, as joint tenants, possessed of and in fully possessed of certain tin works, with the mills, the reversion of and in two of the last-mentioned three messuages, erections, buildings, machinery, fixtures, sixth parts for all the residue of the first-mentioned and apparatus belonging thereto, and certain land term, and continued so possessed, and were and with the appurtenances, for the residue of a term of continued so as aforesaid possessed of the said reninety-nine years, computed from the 25th Dec. version of and in the other two sixth parts, until A.D. 1750, which premises are hereinafter called the and at the expiration of the said term of twenty-five said leasehold premises; and, being so possessed, the years and one quarter of a year, which term, and the said Sir William Garrow, by deed, in the lifetime demise whereby the same was created as aforesaid, of the said John Vigurs and of one Leonard Smith, continued as to the last-mentioned four sixth parts let to the said John Vigurs and the said Leonard until the determination of the last-mentioned term Smith the said leasehold premises, to hold for twenty- by effluxion of time, which happened before the five years and one quarter of a year, from the 25th Dec. action; and the plaintiffs say that the said L. S. died A.D. 1823; and the said John Vigurs and the said after the making of the last-mentioned indenture, and Leonard Smith by the said deed jointly and severally in the lifetime of the said J. V., and long before the covenanted with the said Sir W. G., his heirs, &c., that expiration of the said term by effluxion of time as they the said J. V. and L. S., their executors, &c., aforesaid, and although all things were always by all should and would from time to time and at all times persons done to entitle the plaintiffs, after the death during the continuance of the said demise, repair, up- of the said Leonard Smith, to have the said covenants hold, support, maintain, sustain, and keep in such performed and kept, yet the said John Vigurs, his good, sound, and tenantable repair and condition as executors and administrators, did not nor would from the same then were in, all and singular the said time to time during the said continuance of the said works, messuage, or dwelling-house, &c.; and the term and demise, as to the said four sixth parts, after same premises, &c., being well and sufficiently rethe death of the said L. S., and whilst the plaintiffs paired, &c. and kept in repair, should and would at were such assignees of the said Sir W. G., in respect the end or other sooner determination of the said of the said four sixth parts, repair, uphold, &c. all term thereby granted peaceably and quietly leave, and singular, or any of them the said works, messurrender, and yield up unto the said Sir W. G., his suages, &c., nor did nor would at the said determinaheirs, &c.; by virtue of which demise the said J. V. tion of the said term, as to the said four sixth parts, and L. S. then entered into and upon all and singular peaceably and quietly yield, surrender, and give up the said demised premises, with the appurtenances, unto the plaintiffs, then being sole assignees of the and became and were thereof possessed as joint said Sir W. G. as aforesaid, in respect of the said tenants thereof for the said term so to them granted, four sixth parts, the same premises well or sufficiently the reversion of and in the said leasehold premises repaired, &c., but on the contrary thereof, &c., the belonging to the said Sir W. G. for all the residue of said works, &c., were for want of being then well and the first mentioned term, until and at the time of the sufficiently repaired, &c., in bad order, out of repair, making of the grant thereof hereinafter mentioned; and dilapidated, and not in the same good, sound, and and the said Sir W. G., being so possessed, &c., after-tenantable repair and condition as the same were in wards by deed, during the continuance of both the said terms, granted the said reversion of and in the said leasehold premises unto the said Leonard Smith and the plaintiffs, their executors, administrators, and assigns, for all the residue of the first mentioned term, whereupon and whereby the said term so to the said J. V. and L. S. granted as aforesaid was, as to one undivided sixth part of and in the said leasehold premises, merged in the said last-mentioned reversion, and the said Leonard Smith and the plaintiffs became and were as joint tenants possessed of the reversion of and in three undivided sixth parts of and in the said leasehold premises; and the plaintiffs became and were, as joint tenants, possessed of the said reversion of and in two other undivided six parts of and in the said leasehold premises; and the said parties continued so possessed of the said three sixth parts and two sixth parts respectively as aforesaid, until the making of the indenture hereinafter mentioned. And the plaintiffs say that the title and estate of the said J. V. and L. S. of and in the said leasehold premises, which vested in them by the said demise to them and by their said entry, was not in any way altered or affected from the time of the said entry until the making of the last-mentioned indenture, except so far as it was altered and affected by the said grant of the said reversion to the said L. S. and the said plaintiffs, and by the said merger consequent thereupon, and by the legal effect and operation of that grant, merger, and transaction. And the plaintiffs say that afterwards, and during the continuance of both the said terms, by an indenture made in the lifetime of the said L. S., between the said J. V. of the one part and the said L. S. of the other part, the at the time of the making of the said demise to the plaintiffs, but without the privity or assent of the said John Vigurs, and long before the said respective terms of twenty-three years, twenty-five years and one quarter of a year, and ninety-nine years, or either of them, had expired by effluxion of time, to wit, at the time in the said agreement in that behalf provided, the possession of the said leasehold premises, with the appurtenances and every part thereof was by the said M. E. Tennant, executrix as aforesaid, given up to the said J. D. Llewellyn, who thereupon, without the privity, consent, or agreement of the said John Vigurs, entered into, and thenceforth until and at and after the expiration of the said term of twenty-five years and one quarter of a year kept and retained possession of, the said leasehold premises, with the appurtenances and every part thereof. And the defendant further says that the said John Vigurs died after the said entry by the said J. D. Llewellyn, and before the said term of twenty-five years and one quarter of a year had expired by effluxion of time; and that by means of the premises, after the possession of the said leasehold premises, with the appurtenances, was so given up to the said J. D. L. as aforesaid, the said J. V. during his lifetime, and the defendant as executor, since his death, have been prevented and hindered from entering into or upon the said leasehold premises with the appurtenances or any part thereof, and repairing the same; and the defendant, as executor as aforesaid, hath been necessarily wholly and absolutely hindered and prevented from yielding, surrendering, or giving up the same with the appurtenances well or sufficiently repaired, &c., and hath been and was absolutely and necessarily hindered and prevented from keeping, and it became and was impossible for him to keep, the said covenant of the said John Vigurs in that behalf, as he might and otherwise would have done. Demurrer thereto. This case was twice argued before Lord Campbell, C.J., and Wightman, Erle, and Crompton, JJ. First, on the 26th April 1853, by Willes, for the plaintiffs, and H. Hill, for the defendant; secondly, on the 25th April, 1854, by Bramwell, for the plaintiffs, and H. Hill, for the defendant. The following authorities were referred to :- -On the question whether the agreement of July 12, 1844, acted upon, operated as a surrender of Vigurs' lease, Bac. Abr. "Surrender, Lease;" Smith v. Mapleback, 1 T. R. 441; Weddall v. Capes, 1 M. & W. 50; Nickells v. Atherstone, 10 Q. B. 944; Hughes v. Robotham, Cro. El. 302. As to the prevention of performance by the plaintiff's act, Com. Dig. "Condition," L. 6; Co. Lit. 206, b; Anon. Keilw. 34, b; Carrel v. Read, Cro. El. 374; Ellen v. Topp, 6 Exch. 424. As to sufficiency of declaration, whether covenant to repair apportionable, Stevenson v. Lambard, 2 East, 575; Bro. Ab. "Apportionment," 5, "Contract," 16; Thursby v. Plant, 1 Wms. Saund. 241, a; Bac. Ab. “Extinguishment," A.; Twynam v. Pickard, 2 B. & A. 105. As to the merger of the term in the reversion, Sir R. Bovey's case, Vent. 193; Burton, Conv. 246, 295; Co. Litt. 182,b; Webb v. Russell, 3 T. R. 393. As to joinder of Smith's representatives as plaintiffs, Foley v. Addenbrooke, 4 Q. B. 197; Bradburne v. Botfield, 14 M. & W. 559, 570; Vin. Ab. “Covenant," K. 19; Anderson v. Martindale, 1 East, 497; Wetherell v. Langston, 1 Exch. 634; Petrie v. Bury, 3 B. & C. 353; Wakefield v. Brown, 9 Q. B. 209. As to suspension of right to sue, Richards v. Richards, 2 B. & Ad. 448; Webb v. Salmon, 7 D. & L. 330, aff. H. L. Cur. adv. vult. WIGHTMAN, J. now delivered the judgment of the Court.-This was an action of covenant for nonrepair of leasehold premises during the term, and for leaving them out of repair at the end of the term, contrary to the covenant of the lease under which they were held by the defendant's testator. The declaration stated that Sir William Garrow held the premises in question under a lease for ninety-nine years, which expired on the 25th Sept. 1849; that during the time he so held the premises he granted an underlease of them to the defendant's testator John Vigurs, and one Leonard Smith, for twenty-five years and a quarter from the 25th Dec. 1823; that by this lease Vigurs and Smith jointly and severally covenanted with Garrow, his heirs, executors, administrators, and assigns, that they, their executors, administrators, and assigns, would during the term granted to them repair the premises, and at the end of the nants contained in any under-lease or under-leases of in common must join in an action of this nature. apportionment. The whole reversion that remains is To this objection, however, we think that it was well in the present plaintiffs; and the lessees, on their answered, as before remarked, that the interest of the covenant, are bound to repair the whole premises; plaintiffs was not in common with any other party, and the plaintiffs are injured if each portion of the but that they were the assignees of all the reversion premises is not kept in repair according to the cove which existed. The difficulty, therefore, arising nant, though, their interest being only in the reversion from the inconvenience of two or more actions being of two-thirds of the original lease, their damage will brought by different tenants in common for the same be less by one-third than if they had represented the breach of covenant does not arise here. It was said entire original reversion. Twynam v. Pickard shows, also that, as Smith had some interest in the reversion also, that the case of a covenant to repair is not like after the grant by Sir Wm. Garrow to him and the the case of an entire service, like that of the render of plaintiffs until the subsequent assignment by Vigurs a hawk mentioned in the old authorities cited before to him, he would be a party, to be joined both as us on this part of the case; and that it is capable of plaintiff and defendant in any action brought division, if necessary to divide it, in reference to during that time in respect of any breach of the reversion being divided as to different parts of covenant; and that, therefore, there was a sus- the land. As to the objection also of the service being pension of all rights on the covenant; and that entire, it must be remembered that here the thing to such suspension, once having taken place, destroys be done under the covenant is not to be divided, the remedy at law under the covenant for ever. Two no other person than the plaintiffs having an interest answers may be given to this objection: first, that on in the covenant, and they having a right to the entire the original conveyance to Smith and the plaintiffs, thing being done. The remaining point to consider the one-third of the reversion was at once destroyed, is, whether it is necessary to maintain an action on Smith having then half the lease, and consequently the privity of contract transferred by the statute of more than sufficient interest in the lease to coalesce Henry 8-that the entire interest in the covenant with one-third of the reversion, so that Smith never must have passed to the plaintiffs. Twynam v. Picktook as reversioner, but became at once tenant of the ard is an authority to show that in the case of the one-third of the estate in possession-the reversion of assignment of all the reversion as to part of the lands, the two-thirds passing to the plaintiffs, according to the assignee, though not having the whole interest in Viner's Report of Sir Ralph Bovey's case, which is, the covenant, may sue; and that case, therefore, perhaps, the more intelligible view of the case. If shows that it is not true as a universal proposition, this were so, Smith never could have been a party to that an action cannot be maintained unless the whole sue in right of any reversion. Supposing, however, interest in the covenant passes. The objection is that as alleged in the declaration, that Smith took and the contract is entire, and not capable of division. remained interested in one-sixth of the reversion But the statute was construed in Twynam v. Pickard until that one-sixth was destroyed by the to transfer the right of action as to part, and that in subsequent assignment of Vigurs to him, the right a case where the lessee might be subjected to two of action now under consideration, and which actions by different parties for nonrepair under the arose only at the termination of the lease, never original covenant-a much stronger case than the preaccrued to him; and we are disposed to adopt the sent, where there can only be one action. The case of distinction pointed out by Mr. Willes, as to the doc- Yates and others v. Cole, in 2 Brod. & Bing. 660; trine of a right of action once suspended being gone 5 Moo. 554, is a very strong authority in favour of the for ever being applicable only to the case where there maintenance of the present action. That case very has once been a subsisting right of action which is nearly resembles the present in some very important suspended; and not being applicable to the case where respects. It was an action by the lessors of some the objection is that, if such right of action had ac- undivided parts of the reversion against the lessee crued earlier, it could not have been enforced, from for not repairing. It appeared on the plea that the fact of the same party being one of the parties to after the demise one Bonner, who was the tenant in recover and to be recovered against upon the cove- common with the plaintiffs of the residue of the undinant. Here, assuming that the privity of contract vided shares, had assigned those shares to the defenpassed sufficiently to the plaintiff's under the statute dant. In that case, like the present, so much of the of Hen. 8, no cause of action for the breach of lease as corresponded with the shares assigned to the covenant in question could ever have vested in Smith. defendant would be merged in the reversion, and the It was urged further, on the part of the defendant, defendant would be possessed of his undivided shares that, the plaintiffs' alleged right of action being of the premises, whilst the plaintiffs remained the founded on the privity of contract transferred by owners of the reversion of all that remained of the virtue of the statute Hen. 8, there could be no ap-lease; so that, as in the present case, the whole origiportionment, according to the authority of Steven-nal reversion was not in the plaintiffs, and the defenson v. Lambard, 2 East, 575; and it was also said that a covenant to repair was in its nature an entire thing, resembling the case of an entire service by the render of a hawk, or the like, and that there could be no apportionment with regard to such an entire thing. Stevenson v. Lambard does not appear to us at all to govern the present case. That was an action for rent after an eviction, and it was held that an action of covenant would lie at the suit of the lessor against the assignee of the lessee, on the privity of estate; but that, in an action of covenant on the privity of contract between lessor and lessee, the rent would not have been apportioned after the eviction by which the lessee had lost part of the land. Twynam v. Pickard, 2 B. & Ald. 105, is, however, an authority that this doctrine does not apply to a case like the present; for it was there held that the assignee of the reversion of part of the premises might sue the lessee for not repairing that part. The objection of there being no apportionment, where the action depends on the privity of contract transferred by the statute of Hen. 8, would have been much more applicable there than in the present case, as in that case the covenant to repair was in effect divided, and the lessee would be liable to two distinct parties to repair two distinct parts of the premises. Moreover in the present case there is no the residue of the term granted by Sir William Garrow to him and Smith, there was nothing to prevent nim from performing the covenant to leave in repair according to his covenant. It was said, secondly, that the agreement, coupled with the giving up possession, showed that there was a surrender or assignment of the interest of the plaintiff to Llewellyn, the owner of the inheritance. Even supposing the intention of the parties to the agreement to have been that the legal interest of the plaintiffs should have necessarily ceased, still, as they had only the reversionary interest after the expiration of the lease to Vigurs and Smith, who were no parties to the agreement, the giving up by them and the Tennants, the sublessees of Vigurs and Smith, could not operate as a surrender of the whole lease. The whole interest, if at all, must have passed by the assignment of the reversion to Llewellyn the superior reversioner, so as to merge the plaintiffs' estate. But it is difficult to see how such a reversionary interest could pass without deed. We are of opinion, however, that it was not the intention of the parties to the agreement that the lease to the plaintiffs, or the plaintiffs' reversion upon that lease after the determination of the lease to Vigurs and Smith, should be put an end to. We think that the lease to the plaintiffs was intended to be kept up, and that a future instrument of regular assignment or surrender by all the parties was contemplated. The proviso for the lease being kept in the hands of Frampton for use, and for the recovery of rent and damages for breach of covenant, and the necessity of keeping up the lease to preserve the remedies of the plaintiffs on the under-lease, and the agreement to concur in a future surrender or assignment, when all the interests should be got in, at the request of Llewellyn or the person entitled to the reversion, and as Llewellyn or the person entitled might require all show that the parties neither intended to, nor did, put an end to the legal estate of the plaintiffs in the premises, but that that estate was decidedly kept alive. The plea therefore being, in our opinion, bad, it becomes necessary to consider the questions arising on the declaration. These are questions of great difficulty, involving technical points of an abstruse nature, as to which we have entertained, and still entertain, very considerable doubt. The plaintiffs claim against the representatives of one of the original covenantors damages for breach of covenant in not leaving the premises in repair; and they claim in respect of their interest as assignees of all that remains of the reversion on that lease. Either by one-sixth of the lease and reversion having coalesced at the time of the grant of the reversion by Sir William Garrow to Smith and the plaintiffs and another one-sixth at the subsequent assignment of Vigurs's interest to Smith, as alleged in the declaration, according to Sir Ralph Bovey's case, 1 Vent. 193, or else by one-third of the lease and reversion coalescing at the time of the grant of the reversion by Sir Wm. Garrow, according to the version of Sir Ralph Bovey's case in Vin. Abr. "Merger," G. 16, it is clear that Smith was no longer at all interested in any reversion upon the lease. His interest in the lease coalescing with all his interest in the reversion, he became tenant in possession of a third of the land, and the reversion as to a third was entirely destroyed, whilst the plaintiffs remained reversioners of twothirds of the lease. It is important to observe that they do not hold any reversion jointly or in common with any third party; but the whole that remains of the reversion is in them alone. The question then is, whether the privity of contract as to the covenant in question is transferred to them by the statute of 32 Hen. 8, c. 34? It is said, on behalf of the plaintiffs, that they have all the reversion that now exists. and that at the end of the lease they were entitled to have the premises left in the state in which the lessees have covenanted to leave them, though, being only interested in two-thirds of the property, the damages would only be two-thirds of the entire damages for not leaving in repair. Several objections were made on behalf of the defendant to the title of the plaintiffs to sue. It was insisted, on the authority of Foley v. Addenbrooke, 4Q. B. Rep. 197, and the cases there cited, that ten ants dant himself, by the assignment of part to him, became tenant in common with the plaintiffs, though not, as observed before in reference to this case, tenant in common with the plaintiffs of any interest in the reversion. If the destruction of part of the estate in the lease by the assignment to the lessee, and the consequent merger, destroys the covenant to repair, that would have been an answer to the action; and we must take this case as deciding that the covenant was not gone by the partial merger, and that the repair might be enforced by the remaining lessors in respect of their interest in the covenant. It may be remarked that Yates v. Cole does not seem to have been the subject of much discussion; and, not being cited in the argument in the present case, we had not the advantage of having any comments on it at the bar. We think, however, that we ought to be guided by it as far as it goes; and, as it establishes that the remaining lessors in such case may sue the lessee for repairs, of course the damages being commensurate with their interests, and as it seems from Twynam V. Pickard, that an interest less than an entire interest in a covenant to repair may pass by virtue of the statute of Henry 8, we do not think that the objections to the plaintiffs title in this case are made out to our satisfaction. It might often be most unjust that the partial merger of a lease, by part of the reversion coming to the lessee, should deprive the colessors of their remedy on the covenant to repair. On the declaration, the plaintiffs, as representing all that remains of the interests in the reversion, seem entitled to the benefit of the covenant. No other action can be brought by any other party; and, as for the reasons above given we do not feel satisfied with the technical objections made, and the authorities we have cited seem in favour of the action, we think that we ought to give our judgment for the plaintiffs. Judgment for the plaintiffs. EXCHEQUER CHAMBER. ERROR FROM THE EXCHEQUER. Friday, June 16. (Before COLERIDGE, MAULE, WIGHTMAN, CRESSWELL, ERLE, WILLIAMS, CROMPTON, and CROWDER, JJ.) HAMMOND v. BRADSTREET. Evidence-Ancient map-Production and custody. On an issue whether a locus in quo is in the county of A., a map was tendered in evidence, printed on paper from an engraved copper-plate, and having on the face of it the following words: “New map of the county of A., taken from the original map published by B. C. in 1736, who took an accurate survey of the whole county, now republished with corrections and additions by the sons of the author, 1766, and engraved by D. E." This map was produced out of the custody of a county magistrate, who had had it in his possession for the preceding twelve years: Held, that it was inadmissible in evidence, the statement on the map merely amounting to a statement of the sons of the author as to its accuracy, without in any way showing that they had authority to make the map from any one interested; and that the custody from which it came was also insufficient. This was an action brought for taking a distress for poor-rates from premises alleged to be situate in the county of Norfolk, instead of the county of Suffolk. The issues joined were on the pleas: first, that the defendants did not take the goods modo et formâ and, secondly, that they took them in the parish of Gorleston-with-Southtown, in the county of Suffolk, absque hoc they took them in Norfolk. To this plea, in order to have a return of the goods replevied, an avowry was added that the goods were taken by the defendants, the overseers of the parish of Gorleston-with-Southtown in the county of Suffolk, under the authority of the 43 Eliz. The plaintiff, to prove that the goods were taken in Norfolk, tendered in evidence a map printed on paper from an engraved copper-plate, and having on the face of it, as part of the general impression, the following printed words and figures, that is to say, "New map of the county of Suffolk, taken from the original map published by John Kirby in 1736, who took an accurate survey of the whole county; now republished, with corrections and additions, by Joshua and William Kirby, sons of the author, 1766, and engraved by John Ryland." This map was produced by a Mr. Stewart, a magistrate, who had bought it twelve years before, and in whose custody it had ever since been. The question was, whether this document was receivable in evidence. There was a second point, as to the admissibility of another document, as to which it will be seen that no decision was given. N. Palmer (Worllege with him), for the plaintiff in error (the defendant below).-This map was improperly admitted in evidence. It is not an original mapit is only a copy-and is stated to have been corrected; and the magistrate who produced it was not of necessity the keeper of this document. A county history has been rejected. [MAULE, J.-If a particular copy of a county history had been kept by a person having authority, then it would have been in the nature of a declaration.] Yes; but that is not so here. There is nothing to show who Kirby was. It does not appear that the map was made for public purposes, but rather for his own profit. [MAULE, J. -Is there any evidence of custody?] None; but Mr. Stewart said, "I bought it twelve or fourteen years ago, and have had it ever since." He cited Weeks v. Sparke, M. & S. 679; Duke of Beaufort v. Smith, 4 Exch. 450; Evans v. Taylor, 7 A. & E. 617; Pollard v. Scott, 1 Peake N. P. C. 26; Rex v. Melton, 1 C. & K. 58; Evans v. Getting, 6 C. & P. 586. Couch (Byles, Serjt. with him) for the defenant in error, the plaintiff below.-[MAULE, J.-Do you put this forward as reputation, or as evidence of an old document coming from the proper custody?] As reputation. I am entitled that the date of this map should be taken to be that which appears on its face. [COLERIDGE, J.-If I brought into court a deed relating to your estate, that would not be accepted as evidence of the date alone, I apprehend.] Yes; an instrument must be taken to be prima facie of the date it bears: (Daris v. Lowndes, 6 M. & G. 527.) As to the custody, all that is required is that the document comes from such custody-that there is no reasonable cause of suspicion that it has been tampered with. How could the custody of a document 100 or 200 years old be traced? [MAULE, J.-You argue as if this was the original map, whereas it only purports to be a copy of an original which was made in 1766. COLERIDGE, J.-You know it has been decided that the copy of a letter taken by a copying-machine is not an original. But even take it that you have a map with 1766 on it, have you anything more? Would a map in a county history, which had been in your possession twenty or thirty years, supposing the makers to be dead, be good?] There are reasons for saying that the same amount of local knowledge is not necessary where the question is the boundary of a county as where the question is the boundary of a parish; the question here is, whether it is necessary to prove that Kirby had any local connections or knowledge of the county. [COLERIDGE, J.-Who do you now assume to be dead, so as to make this a declaration ?] Kirby, the son. [COLERIDGE, J.-There is no proof of his existence.] This map was produced by a person holding an official position in the county, and acting as a magistrate there. [COLERIDGE, J.-All that would apply if he had bought it the day before.] The custody in this case was sufficient to exclude the presumption of fraud. The following cases were cited :— Davis v. Lowndes, 6 M. & G. 527 ; Freeman v. Phillips, 4 M. & S. 486; Crease v. Borrett, 1 C. M. & R. 919; Bishop of Meath v. Winchester, 3 N. C. 183; Barker v. Ray, 2 Russ. 67. JUDGMENT. Cur. adv. vult. COLERIDGE, J.-The decision of this case depends on the admissibility of two documents which were tendered in evidence at the trial, and received after objection made. If either was inadmissible, a venire de novo must be awarded. One question argued before us was, Did the map in question come from proper custody? In one sense it did, for it was produced by a gentleman, a magistrate, who bought it twelve years ago; but the fact of it being in the custody of the party who had such lawful possession of it does not at all vouch for its accuracy, nor that it is what it proesses to be. It is wholly unlike the case of a deed purporting to be a conveyance of land. If such a deed is found in the custody of the party who, if it were such conveyance, would have the right to it, and kept amongst his title-deeds, such custody tends to show that it is what it professes to be. But, assuming it to be what the inscription upon it declared it to be a map prepared in 1766, in part from an older map in 1736, by Joshua and William Kirby, sons of John Kirby, who made the survey in 1736-at the utmost, this is only a declaration by Joshua and William that they believed the boundaries to be as described by him, or that they were described by them. What circumstances were given in evidence to render such declaration admissible? The relation of Joshua and William to John Kirby would not have that effect. They do not appear to have been deputed to make the map by any persons interested in the question; nor did they have any knowledge of their own on the subject, nor were they in any way connected with the district so as to make it probable that they had such knowledge. The grounds upon which ancient pedigrees are received in evidence are, therefore, wanting in this case. We think, therefore, the map was inadmissible. There was a second point in the case, as to the admissibility of an apportionment under the Tithe Commutation Act, with a map annexed to it, which was tendered and received in evidence by the learned judge who tried the cause. We have had some doubts on that matter, but we should have come to a conclusion on them if we thereby could have assisted the learned judge who will have to try the cause again in a decision of the point when it shall arise. But it appears to us, if we were to decide it on the present state of the bill of exceptions, the parties on either side will have to add new facts, so as so entirely to vary the question of its admissibility that we should render no assistance by pronouncing an opinion on it. It strikes us as matter to admit of a great deal of argument and doubt; and, as far as matter of prudence goes, it would be matter of consideration whether it would not be better for those who tender it not to press the admissibility of it on the second trial. We say nothing more than that there must be a venire de novo on the other point. Venire de novo. NISI PBIUS. Guildhall, Friday, June 9. (Before COLERIDGE, J.) MEESON v. OLIVER. Telegraphic messages-Contract-Commission. Semble, telegraphic messages are admissible evidence. A broker cannot recover on a quantum meruit for the sale of a ship unless the contract be signed by vendor and purchaser, and the sale in all other respects be complete. Work and labour. Plea, never indebted. This was an action to recover commission for negotiating the sale for the defendant of the ship the General De Witt. A question was raised whether a telegraphic message could be given in evidence. COLERIDGE, J.-It would be a very good thing to make such messages admissible, as it would be a very difficult thing to prove them. Thomas Meeson, the plaintiff, was then called, and said: I am a commission-agent at Liverpool, and the defendant is a large shipowner there. The defendant called on me and said, he hoped I would make money for him, saying he would be glad to have offers from me. I said to him, "I shall look to for you my commission." He said, "Very well, I'll see to that; try and get me a purchaser." The vendor of the ship always pays the commission. 1 per cent. is the usual commission. I have never lost my commission where the purchaser has acceded to the seller's terms. I have never had commission where there was no signed contract. Thomas Harrison.-I negotiated with the plaintiff for the purchase of the ship General De Witt, and signed the contract. I refused to complete the purchase, on account of a clause inserted by the defendant after I had signed it. It did not appear that the defendant had signed the contract. Joseph Lachlen, a ship and insurance broker.— Commission is payable when the agreement is complete. I know of no case where the ship-broker has not received his commission when the vendor and purchaser have been brought to terms, and the bargain has gone off. On cross-examination.-It is understood among merchants that where the contract is signed the shipbroker gets his commission. It often happens that a great deal of negotiation takes place, and at the last moment the thing goes off and we lose our commission. COLERIDGE, J.-On this evidence, I understand that where the contract is not signed by both parties commission is not earned. T. Jones, for the plaintiff.-Unless there is a usage depriving the plaintiff of his commission, there is a case for the jury on a quantum meruit. COLERIDGE, J. thought no contract had been proved; but it was agreed to go to the jury on the usage. Bovill, for the defendant.-The bargain was not complete, and therefore the plaintiff must lose his It was ultimately agreed that the verdict should HOUSE OF LORDS. Thursday, July 6. PATERSON v. WALLACE. Master and servant-Negligence causing death of servant-Evidence for a jury-Nature of exception to judge's ruling. and killed him. but in this main road. The stone fell on my father | therefore there was nothing to leave to the jury. Besides, the exception is not specific enough, and does not point to the withdrawing the case from the jury as the ground of exception: (Bell v. Whitehaven and Furness Railway Company, 7 Bell's Appeals 80.) Hodgson replied. Daniel Quin, one of the roadsmen sent to take down the stone, also examined :-Was in pit at time of the accident. There was a bad stone in the roof. I had seen it before the accident. I was afraid of it. I said to Robert Paterson it was a bad stone. I was near him within fifteen yards, and saw it fall. He was filling a hutch of coals and the stone fell on him. Other workmen used to pass under it, and it had been often complained of. I had got orders that morning to take down this stone and others. I did not. Why? Paterson was filling his hutch to get coals, and then we were to take it down. I got no orders to wait till he filled his hutch. I got orders from roadsman; but I was not forward in time. Paterson was filling hutch when I came forward, and stone fell while he was filling. His hutch was not full, and I waited. I was waiting till he filled his hutch. Coals would have been dirtied if I had taken down the stone before the hutch was filled. This induced me to wait, and that led Paterson to go on filling. Cross-examined :—I waited between a quarter of an hour and ten minutes, and O'Neill waiting beside me. We understood it was better for Paterson's interest to fill the hutch. It would have taken him ten minutes. He had coals wrought out sufficient to fill the hutch. O'Neill did not tell me he was desired to wait till the hutch was filled. It was our own doing. If Paterson had not been filling the hutch, O'Neill and I would have begun immediately to take down the stone. In an action by the widow of A., a miner, to recover tion that which is bad law. This was an appeal from the Court of Session in Scotland on a bill of exceptions. The action was brought by the widow and children of Robert Paterson, a miner in defendants' coalpit, to recover compensation for the death of the said Robert Paterson, who was killed, as alleged, by the negligence of defendants and their servants in not removing a stone in the roof of the said pit, which stone had been negligently suffered to remain in a dangerous position until it fell and killed the deceased. The plea, in substance, was that the deceased had met with his death in consequence of his own rashness and culpable negligence. Issue thereon. At the trial, before Lord Justice Clerk Hope, one of the witnesses for the plaintiffs was the son of the deceased, and proved as follows: On the morning of the accident witness and the deceased were engaged in widening the main road in the pit. One Snedden, the underground manager, told me and deceased to work at the spot in question. I said it was dangerous. Snedden said I was afraid of snow when none fell. Deceased also said it was dangerous; to which Snedden replied, "Robin, you might make your bed under it." Deceased had often complained of that part of the road being dangerous, and in particular of one large stone hanging in the roof. Snedden said he would send two men to take it down. This stone was about four yards lower down from my father. It was partly in the roof and partly in the side. Two men were sent to take out the stone. One man who was there was directed to do it, who was waiting for a hutch. The men thought it would dirty the half hutch coals, and would take it away first. Snedden was there, and saw them take the hutch away. We had not got four shovels of coals into the hutch when the stone fell. Myfather was filling the hutch, not in his own room, the grounds of his ruling thus:-"Now, the two facts J. H. Hodgson, for the appellants, contended that The Solicitor-General (Bethell) and Bovill, for respondents.-It was clear from the evidence that the deceased had brought the accident on himself, and The LORD CHANCELLOR.-My Lords, it seems to me extremely clear that the learned judges in the court below have come to an erroneous conclusion in overruling these exceptions. The question arises upon a trial, which was brought by the representatives of a deceased workman, to recover compensation in consequence of the death of the deceased having been occasioned, as it is said, by the default of his master, under such circumstances as made the master responsible. The law of Scotland is admitted on all hands to be this-and I believe it to be entirely conformable to the law of England also-that where a master is employing a servant in a work, particularly work of a dangerous character, he is bound to take all reasonable precautions that there shall be no extraordinary danger incurred by the workman. A case has been put by Mr. Bovill of a rope going down I take it that, in England just as in to a mine. Scotland, if the master of a man negligently puts a rope that is so defective that it will break with the weight of a man upon it, he is responsible to the workman just as he would be responsible for his negligence to a stranger. It has been decided, according to my recollection, in England, that masters are liable to strangers for all accidents which occur by negli gence on the part of their servants. The case is different where the master is employing several servants, and employing competent persons. In that case, suppose an accident happens to one of them, owing to the neglect of another servant, I think it has been determined in the courts in England that the master is not responsible. I thought this was a case of that sort, when I intimated that there might be a difference between the law of Scotland and the law of England upon this subject; but, in the actual state of the case, I do not believe there is any difference at all. I believe by the law of England just as by the law of Scotland, in the actual state of the case with which we have to deal here, a master employing servants upon any work, particularly a dangerous work of this sort, is bound to take care that he does not induce them to work under the notion that they are working with good and sufficient tackle, whilst he is employing improper tackle, and being guilty of negligence, his negligence occasioning loss to them. That, however, is generally admitted on all hands to be the law of Scotland. My Lords, this action was brought upon this ground, that this unfortunate man had come by his death by reason of the masters, through their agents, having carelessly left a very large stone in the roof of a mine, in so dangerous a position that the workman, when engaged in digging out the coal, owing to their negligence, lost his life. There being no doubt that the poor man did lose his life by this great stone falling upon him, which killed him on the spot, in order to recover damages the family must establish two propositions. First of all, they must show that that stone was in a position in which it was dangerous owing to the negligence of the master; and next, that the workman whose life was forfeited lost it owing to that negligence, and not to his own rashness. It is said that by the law of Scotland the master is bound to provide against the rashness of the workmen, and I see in one of the learned judges' opinions an expression which might give countenance to such a notion. That is evidently a proposition which, as matter of law, can never be sustained. In England, in Scotland, and in every civilised country, a party, who rushes into danger himself, cannot say―That is owing to your negligence. As a question of fact, it may very well be laid down that that which would be negligence and reasonably treated as rashness in other persons, may not be fairly treated as rashness in a workman, if his master knows that such conduct is what workmen ordinarily pursue. That is all the learned judge could have meant. The plaintiffs here must make out that the deceased came to his death owing to the stone in question having been improperly left to remain where it was, being dangerous to the |