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of the right to recover. Further, it was contended that if the plaintiffs insured for the benefit of their customers, and if a policy happened to cover only the insurer's own property or personal interest, nevertheless they would have to share the sum insured with the cestui que trust, and thus miss realizing a security for their own losses. The question, observed Erle, J., is, whether the plaintiffs, when intending to insure their own interest, made in the term of the policy a special stipulation with the insurance company, that if they had a defence against the owner and sender of the goods, under any provision of law relating to carriers, they would avail themselves of it. “I would add,” continued the learned judge, “that if, for the future, insurance companies, allowing a carrier to insure goods passing through his hands, mean to limit the liability that they incur to such liability as by law could be enforced against the carrier in invitum, more definite words to that effect should be employed than are to be found in the present policy.
On the authority of the case already cited, as well as on principle, judgment was given for the plaintiffs. Assuming that the respectable company which defended the action did not mean to enter on the contract as it has been thus interpreted by the court, but had the effect of the Carriers' Act in view when they framed the terms of the policy, they should have taken pains to express their meaning clearly, and we commend the observation of Erle, J., to the notice of their legal advisers.
4. LOFFT v. DENNIS. (28 L. J., Q. B., 168.) Fire Insurance-House burnt down—Rent payable for Use and Occupation
Lord St. Leonards Handy-book observed upon. An equitable plea had been pleaded in this case, which was for rent due for use and occupation. The effect of the plea was, that the value of the premises holden by the defendant of the plaintiff had been diminished by reason of certain buildings thereon having been burnt down ; that, although the plaintiff had received his insurance money from a fire-office, he had not rebuilt, and the defendant thereupon claimed to be exempt from paying the full rent. Among the authorities quoted in this case were Leeds v. Cheetham (1 Sim, 146), Brown v. Quilter (Ambl., 619), and Lord St. Leonards' Handy-book (1st Ed., p. 101). The passage from the last authority is as follows :
“ If, therefore, you mean that a tenant at rackrent shall insure at his own costs, you must make him agree to do so by the contract. If you omit this, the lease must be so framed as to exempt him from making good accidents by fire. But, even in
this case you are not bound to insure; and although the house should be burnt down, yet the tenant must continue to pay the rent, so that each bears his burden-you lose your house, and the tenant loses his rent during the term. If, however, you have insured, although not bound to do so, and received the money, you cannot compel payment of the rent if you decline to lay out the money in rebuilding."
Lord Campbell concludes his judgment in Lofft v. Dennis by expressing the deep respect he has for the opinion of Lord St. Leonards, but affirms that what he states in the above passage does not appear to have been made law hitherto. “If it were,” the Chief Justice adds, “ I should support it.” So Crompton, J., remarked—“ If it had not been for the passage in Lord St. Leonards' Handy-book I should not have felt any difficulty in this
There was no agreement to insure the premises, nor any thing to show any obligation to insure; but it merely appears that the plaintiff chose to do so, and then the tenant says, 'Well, if you are going to insure, I will not ! If any inducement had been held out to the defendant not to insure the premises, the case might have been different."
In Brown v. Quilter the plaintiff had rented a house for a term of years, and in the lease he covenanted to repair, &c., accidents by fire excepted, and the defendant entered into the usual covenant for quiet enjoyment. The house was burnt down, and the defendant, who had insured, received the insurance money, but did not rebuild the house ; insisting, nevertheless, upon his right to the rent. The defendant having brought an action for the rent, the plaintiff filed his bill for an injunction to compel the defendant either to rebuild or pay to the plaintiff the insurance money. The defendant, by his answer, offered to take back and cancel the lease ; but the plaintiff, choosing to continue tenant without having the house rebuilt, rather than to give up the lease, he consented to the dismissal of the bill. The main point, therefore, was not decided otherwise than in the remarks by Lord Northington, which we will now quote :
“ The justice of the case is so clear, that a man should not pay rent for what he cannot enjoy, and that occasioned by an accident which he did not undertake to stand to, that I am much surprised it should be looked upon as so clear a thing, that there should be no defence to such an action at law; and that such a case as this should not be considered as much an eviction as if it had been an eviction of title, for the destruction of the house is the destruction of the thing. Though this covenant does not extend to oblige the defendant to rebuild, yet when an action is brought for rent after the house is burnt down, there is a good ground of equity for an injunction till the house is rebuilt."
Turning now to Leeds v. Cheetham: the defendant had there demised by indenture to the plaintiff a factory for twenty-one years. The plaintiff covenanted to pay the rent, and to rep: ir the inside of the factory, and the defendant covenanted to maintain all the outer part of the premises in good repair. There was no exception with respect to accidents by fire, either in the covenant for payment of the rent, or in the covenants to repair. The premises were burnt down, and defendant, who had insured, received the insurance money. Under this state of facts, Leach, V.C., held that there being in the lease no exception as to the case of accident by fire, the plaintiff by law continued bound to pay his rent, he continued bound also by his covenant to keep in repair the inside work of the factory. On the other hand, the defendant, for want of the like exception, continued bound by his covenant to repair the outer part of the building; and, from the particular terms of the defendant's covenant, the judge said that he was “bound to rebuild the factory, and to cover in the same with
proper roofing and slating, or tiling ... It appears to me that, in this respect, equity must follow the law. The plaintiff might have provided in the lease for a suspension of the rent in the case of accident by fire; but, not having done so, a court of equity cannot supply that provision which he has omitted to make for himself, and it must be intended that the purpose of the parties was according to the legal effect of the contract. With respect to the equity which the plaintiff alleges to arise from the defendant's receipt of the insurance money, there is no satisfactory principle to support it. The defendant having so contracte i with the plaintiff as to render himself liable to rebuild the outer work of the factory in case of accident by fire, has very prudently protected himself by insurance from the loss he would otherwise have sustained by such an accident. But upon what principle can it be that the plaintiff's situation is to be changed by that precaution on the part of the defendant, with which the plaintiff had nothing whatever to do? The plaintiff has sought his protection in the contract by the covenant which he has required from the defendant; and to those covenants must he alone resort." To which he adds, “The remedy is at law, and this court cannot
The statement of the lawin Lord St.Leonards' book, which we have printed in italics, was founded on the ruling in Brown v. Quilter, and the learned lord in his new edition (7th, p. 127, n.) distinguishes his statement of the law from that in Leeds v. Cheetham, and Lofft v. Dennis. In the first place, in Leeds v. Cheetham there was no exemption from casualties by fire ; while Lord St. Leonards is referring to cases where the tenant is exempt from such casualties. Again, in Leeds v. Cheetham the plaintiff and defendant were
left to their remedies at law, as distinctly pointed out by the judge, and it was a mere act of prudence on the part of the landlord to protect himself against liabilities by insuring ; but in the case proposed by Lord St. Leonards, the tenant would have no remedy whatever at law against the landloril, there being no covenant on the part of the latter to rebuild. In Lofft v. Dennis, the tenant, it would seem, was merely a tenant from
year; therefore “the decision in that case was not opposed to any rule of equity, for equity would not compel a lessor to lay out the money on rebuilding when either party inight put an end to the relation of landlord and tenant before the foundation could be well laid."-(Handy book, 7th edit., p. 128, note.) Lord St. Leonards, accordingly, has retained his original text; but remarks, in the note from which we have just quoted, that the decision in Lofft v. Dennis was supposed to overrule it, though we may observe that the court of Q. B., on consideration, will probably see that it does no such thing
A curious phenomenon may be observed in the judicial proceedings which we have referred to. Thirty years ago, a V.C. came to his decision in Leeds v. Cheetham, on the ground that ' equity must here follow the law." The Court of Queen’s Bench, instead of deducing from legal principle the result they should arrive at, considered itself "bound" to follow "the solemn judgment” of the V.C. in Leeds v. Cheetham, and thus, contenting itself to follow equity, completed a vicious circle.
Though the judgment in Lofft v. Dennis may perhaps, considering the fact of the tenant being a yearly one, be pretty generally acquiesced in, yet the processes by which the Lord Chief Justice (closely followed by his puisnes) arrived at the particular results reported, do not afford overwhelming evidence of judicial acumen.
We will take the opportunity also of drawing the reader's attention to the difference between the law of England and the Scotch law on this head--one of which only can be founded on genuine equity ; for it is stated in the judgment of Lofft v. Dennis, that “ by the law of Scotland, if premises are burnt down by an accidental fire, the tenant is relieved from payment of the rent;" which is not so by the law of England, where, if there is an absolute covenant to pay rent, such covenant must be performed.
Notices of New Books.
[*** It should be understood that the notices of new works forwarded to us for review, and which appear in this part of the Magazine, do not preclude our recurring to them at greater length, and in a more elaborate form, in a subsequent number, when their character and importance seem to require it.]
A Handy-Book on Property Law, in a Series of Letters. By Lord
St. Leonards. Seventh Edition, with Additions and an Index. W. Blackwood & Sons. Edinburgh and London : 1859.
SINCE the 1st January, 1858, this remarkable work has passed through seven editions. We call it "remarkable,” not only because of its intrinsic merits, an 1 its appearing in an age wherein a multitude of not remarkable works are vomited from the press, and sink or swim for a time on the waves of the public approbation according to accident; but because we know of no other instance in the universal history of legal literature, where an author may see his book in the library of the country gentleman-nay, on the drawing-room table of an English ladyas well as hear it cited at the Bar, and admitted by the Bench as an authority. It affords, indeed, the best example we know of the power of simplicity arising from perfection of knowledge.
We reserve for future consideration certain new matter introduced by the author since the publication of the first edition of this Handybook. The perusal of its pages, in its present form, suggests much which cannot be hastily noticed. We will content ourselves for the present by mentioning to our readers, that the chief addition is the new letter (IX.), containing observations on a "General Registry” in connection with titles to real property.
We have in this number, in our notes of recent leading cases, considered Lofft v. Dennis in relation to Lord St. Leonards' remark,
Other new and interesting matter will also be found interspersed through his pages.
We will add, the book is worthy of a more complete and correct index than the one it has been furnished with. Not only is it imperfect, but occasionally the reference to the pages is inaccurate. Cases selected from those heard and determined in the Vice-admiralty
Court for Lower Canada, relating chiefly to the Jurisdiction and Practice of the Court as involving Questions of Maritime Law, of frequent occurrence in the Trade and Navigation of the River and Gulf of St. Lawrence, and edited by George Okill Stuart, Esq., Q.C. Stevens & Norton, 1858. The above title explains the subject of this volume-which, though