claim, that the conviction of the defendant not having been followed by a record of the conviction on the licence, the licence was not "affected" within the meaning of the covenant in the lease, and that there had been no breach of covenant by the defendant, and consequently no forfeiture. Goodtitle dem. Luxmore v. Saville (16 East, 95), and the dicta therein of Lord Ellenborough, C.J., and Le Blanc, J., cited and discussed. THIS was an action by the plaintiffs to recover possession of a public house and premises, of which the defendant was tenant under a lease from the plaintiffs, on the ground that the defendant, having been convicted by the justices under the Licensing Acts 1872, 1874, for offences against the said Acts, had thereby committed a breach of her covenant in the said lease, and had so incurred a forfeiture of such lease.

The plaintiff's statement of claim:

1. On the 29th Aug. 1874, the plaintiff Dorothy Hannah Wooler, then Dorothy Hannah Heslop, spinster, by deed let to the defendant a public house or inn called the Black Lion Hotel, and premises, situated in Middlesbrough, in the county of York, for a term of six years from the 13th May 1874, at the yearly rent of 501., payable half yearly, the first payment of such rent to be made on the 23rd Nov. then next.

2. By the said deed the defendant covenanted with the said plaintiff, D. H. Wooler, her heirs and assigns, to pay the said yearly rent of 50l. at the times and in the manner so appointed as aforesaid for the payment thereof, and to "keep the said public house or inn and premises open as a public house, and that in the usual customary way and manner as houses of that description were kept, and that she would not do or omit or permit, or suffer to be done or omitted, any act, matter, or thing whatsoever, that could or might affect, lessen, or make void either or any of the licences for the time being granted to the said public house or inn and premises."

3. The said deed also contained a clause or proviso whereby it was agreed and provided that in case the rent thereby reserved, the same being legally demanded, should be in arrear for twenty-one days, or" in case any breach or default should be made in any of the covenants, clauses, or agreements in the said deed contained, upon the defendant's part to be observed and performed, it should be lawful for the said plaintiff, D. H. Wooler, her heirs and assigns, into or upon the said premises, or any part thereof, in the name of the whole, to re-enter and the same to have again, re-possess, and enjoy, as in her and their former estate as if the said demise had not been made, and the said defendants from thence to expel, remove, and put out, anything in the said deed to the contrary notwithstanding."

4. On the 26th day of Sept. 1875, the said D. H. Wooler, then the said D. H. Heslop, intermarried with and became the wife of the plaintiff, Edward Wooler.

5. On the 14th Oct. 1875, the defendant kept open the said public-house during prohibited hours. And on the same day she permitted drunkenness, and was herself drunk in the said publichouse; and she was afterwards, on or about the 18th day of Oct. 1875. duly convicted before the magistrates sitting at Middlesbrough aforesaid, and fined by thein in respect of the two former of the said offences.

[Ex. Div.

6. No payment or satisfaction whatsoever has been made by or on behalf of the defendant to the plaintiffs or either of them in respect of the occupation by her of the said demised premises for the period of time which has elapsed since the 13th May 1875, from which time up to the present she has remained and still now remains in the possession and occupation thereof.

The plaintiffs claim-1, possession of the said public-house and premises; 2, 1000l. damages for the defendant's breaches of the said covenant respecting the mode of conducting the business of the said public-house and premises. Statement of defence:

Demurrer by the defendant to the plaintiffs' statement of claim as bad in law, on the ground that it does not show any breach by the defendant of the covenants in the said deed contained, or of any of them, whereby the plaintiffs have a right to re-enter upon and recover possession of the said premises, or to receive from the defendant any damages for breach of covenant, or any payment or satisfaction for occupation by her of the said premises; and on other grounds sufficient in law to sustain this demurrer.

Joinder in demurrer by the plaintiffs.

The plaintiffs' points. First, that the facts alleged in the statement of claim, and admitted by the demurrer, are sufficient to entitle the plaintiffs to judgment in this action in respect of the matters claimed in such statement; secondly, that the facts alleged in the 5th paragraph of the statement of claim, and admitted by the demurrer, constitute a clear breach of the covenant mentioned in the second paragraph; thirdly, that the facts alleged in the 5th paragraph show that the defendant omitted or permitted or suffered to be done or omitted matters that could or might have affected the said licences for the time being within the true intent and meaning of the said covenant; fourthly, that the facts alleged in the 5th paragraph show, that the defendant did not keep the said public house or inn and premises in the usual and customary manner as houses of that description are kept, inasmuch as she did not keep it in accordance with the licensing statutes in force for the time being; fifthly, that upon the admitted facts, the defendant was guilty of offences against the provisions of the 35 & 36 Vict. c. 94, and the 37 & 38 Vict. c. 49, which were of a nature to affect and lessen and tended to make void the said licences by virtue of the several provisions of the said Acts; and sixthly, assuming the defendant was, upon the admitted facts, guilty in point of law of a breach of either of the covenants referred to in the 2nd paragraph, it follows that the plaintiffs are entitled to recover possession of the said demised premises under the proviso for re-entry, which is referred to in the 3rd paragraph.

The defendant's points: First, it does not appear by the statement of claim how any of the facts therein mentioned was or were a breach or default of or in any of the covenants, clauses, or agreements in the said deed contained, on the defendant's part to be observed and performed, which entitled the plaintiffs to recover possession of the said public-house and premises, or to recover any damages as claimed by the plaintiffs; secondly, it does not appear by the said statement that any rent reserved by the said deed was in arrear, or that the defendants did not keep the

said public-house or inn open as a public-house in the usual and customary way and manner as houses of that description were kept; thirdly, it does not appear by the said statement what licence or licences was, or were, or had been for the time being granted to the public-house, or inn and premises, or how and in what manner the defendant did, omitted, or permitted, or suffered to be done or omitted any act, matter, or thing that could or might affect, lessen, or make void either or any of the licences for the time being granted to the said public-house, or inn, and premises; fourthly, if it be intended by the statement of claim to rely on the Licensing Acts of 1872 and 1874, and any licence which may have been granted, or is affected or regulated under or by virtue of those statutes or either of them, with respect to the said publichouse, then it is to be observed that neither the 13th section of the former of the said statutes, which imposes a penalty, on persons licensed to sell excisable liquors by retail in any house or premises, for the offence of permitting drunkenness in such houses and premises, nor the 9th section of the latter statute, which imposes a penalty on such persons, &c., for the offence of keeping open such premises for the sale of intoxicating liquors during the time at which such premises are by the said statute directed to be closed, enacts that the committing by or the conviction of the licensed persons for such offences, or either of them, shall cause the licence or licences granted to such person to sell excisable liquors as aforesaid to be affected, lessened, or made void. By sect. 30 of the Licensing Act 1872 and sect. 13 of the Licensing Act 1874 it is only after two previous convictions of either of the offences of which the defendant was convicted, and where such two previous convictions are directed by the convicting justices in their discretion to be recorded on the licence, that a third conviction of either of such offences, also ordered to be recorded on such licence, causes a forfeiture of such licence. Sect. 13 of the 37 & 38 Vict. c. 49, enacts that the justices convicting any person of either of the offences of which the defendant was convicted, shall, as part of their sentence, direct whether or not the said conviction shall be recorded on the licence of such person. The statement of claim does not allege that any previous conviction of the defendant for either of the said offences had been so directed or ordered to be recorded on the licence, or even that any previous conviction of the defendant of such offences, or either of them, had ever been made or taken place. 6. The said Licensing Act 1872, sect. 15, enacts that any licensed person permitting his premises to be a brothel, shall not only be liable to a penalty not exceeding 201., but shall on conviction forfeit his license. Other offences of a more venial nature do not by the said licensing Acts, or any other law, entail or cause such forfeiture, unless not only repeated but repeated under such circumstances of aggravation, negligence, or wilful default by the person licensed as to induce the convicting magistrates as part of their sentence to order such conviction to be recorded on the licence. Only on a conviction of the said offences, or either of them, of which the defendant was convicted after two previous convictions which have been so ordered to be recorded on the licence, is the licence forfeited. The defendant having been convicted and fined as in the 5th paragraph of the statement MAG. CAS.-VOL. X.

[Ex. Div.

of claim is alleged, had undergone the punishment intended and prescribed by the statute. But neither of such convictions having been recorded, or ordered to be recorded on her licence, it is a harsh, forced, incorrect, unsound, and illegal construction of her covenants in her said lease, and of the dependent clause or condition of re-entry by the lessor, and contrary to the intention of the parties to the said lease to hold that the lessee has committed a breach of contract, and thereby has incurred a forfeiture of the estate and interest granted to her by the lease, in procuring which she may have invested all her means, and on retaining which her livelihood may depend.

By an agreement between counsel on both sides these additional facts were taken as admitted in the course of the argument, viz., that the justices who convicted directed, as part of their sentence, that the convictions should not be recorded on the defendant's licence, and that consequently neither of such convictions was so recorded.

66

Cave, Q.C. (with whom was Heath), for the defendant, in support of the demurrer.-The court are called on to say whether these two convictions, unaccompanied by any record of them on the back of the licence, constitute a breach of the lessee's covenant and a consequent forfeiture. Has the defendant done anything which, in the actual words of the covenant itself, can or may affect, lessen, or make void the licence?" There is no pretence for saying that the licence has been "lessened or avoided," and therefore the sole question is, has it been "affected." Under sect. 13 of the Act of 1872, permitting drunkenness on the premises is an offence, and it is now an offence under sect. 9 of the Act of 1874, to keep a public house open for the sale of intoxicating liquors during prohibited hours, sect. 24 of the Act of 1872 being repealed. If two convictions are recorded on the licence, and then a third conviction ensues, the licence is rendered ipso facto void, and the premises are disqualified, unless the justices otherwise order (sect. 30 of the Act of 1874); but, in the absence of a record of the conviction on the licence, the licence is not avoided nor are the premises disqualified by any number of convictions. The indorsement of the licence is the test, and if the licence is not directed to be indorsed with a record of the conviction, it is not in any way affected" by the conviction. Under the Act of 1872 the licence was to be indorsed by the justices' clerk, unless the justices otherwise directed; but by the latter Act of 1874, the burden is thrown upon the justices, and they are required to inspect the register of licences (which is provided for by sect. 31 of the Act of 1872), and to declare as part of their sentence whether the conviction shall or shall not be recorded on the licence The Act of 1874 came into operation on the 30th July in that year, and the lease here was executed on the 20th Aug. following, and it is probable that the person who drew this covenant intended the word "lessen to refer to the provision of that Act under which (s. 49) a licence may be reduced from a seven day to a six day licence, or (s. 7) the hour for closing may be made earlier, and each word of the covenant would thus have a definite meaning. An offence against the Act not followed by conviction cannot "affect" the licence, nor could the parties have meant to leave the question of forfeiture to a jury upon so vague, indefinite, and wide a question as that of drunken

66

X

ness. Covenants, the breach of which involve a forfeiture, are always construed most strictly and with a strong leaning against the forfeiture.

Morgan Lloyd, Q.C. (with him was Willis) for the plaintiffs contra.-Whether or not the justices direct the licence to be indorsed is not the question, for whether the licence be indorsed or not the conviction must be recorded on the register of licences (sect. 31 of the Act of 1872), and thus the premises are immediately affected. There is a vested cause of action which is not and cannot be touched by the exercise of the justices' discretion. Protection to the landlord from proceedings which may incur the loss of the licence is needed, and by so reading the covenant a plain meaning is given to the words, "which may or can affect," &c. The words are not "any act which shall have affected" as the defendant's construction would seek to make them. That it is the conviction, and not the record of it on the licence which disqualifies the premises is obvious from sect. 56 of the Act of 1872, by which, on conviction of the tenant for an offence against the Act, "and such offence is one, the repetition of which may render the premises liable to be disqualified," the owner of the premises is to have notice of the conviction; but not a word is said about recording it. In the plain and ordinary understanding of language, a conviction for an offence against the Act must be held to "affect the licence." He cited Goodtitle dem. Luxmore v. Saville (16 East, 95), where the rule as to the construction of clauses of forfeiture is laid down.

Cave, Q.C., was not called on to reply.

KELLY, C.B.-In this case it appears to me that no offence has been committed leading to a forfeiture, and therefore our judgment should be for the defendant. The words of the covenant, the breach of which, it is alleged, has caused the forfeiture, are that the tenant " will not do, omit, or permit or suffer to be done or omitted, any act, matter, or thing whatever, that can or may affect, lessen, or make void, either or any of the licences for the time being granted to the said public house, or inn and premises." Now it appears that there was only one licence in existence at the time in question. I am glad to have had the assistance of my brother Huddleston, who was a member of the Legislature when one or both of these important Acts were passed, and who, therefore, is accurately acquainted with the question and the provisions of the statutes relating to it. Let us then, first of all, consider what is the state of the law upon the matter. The object of the landlord, is, of course, that the licence shall be kept intact, and ultimately unavoided. Now, a licensed tenant may be convicted of one, or even of two, offences against the Act, but the licence is not avoided, and no forfeiture effected unless those two convictions are recorded on the licence itself, and are followed by a third conviction. The justices have the power of doing an act by which, and it is the first act by which, under these statutes, the licence may be in any wise affected, and that is, they may order the conviction to be indorsed upon the licence; but unless and until that indorsement is made, the licence is entirely unaffected. In a sense, no doubt, the licence may be said to be affected directly the offence is once ordered to be, or is, indorsed upon it; but it is only in case that is followed by subsequent offences, and the subsequent result of such

[Ex. Div.

offences, that the licence is avoided. The question, then, is, whether anything that has been done, or that may be done, which renders it more or less probable that at last the licence will be avoided, can be said to "affect" the licence and work a forfeiture. In considering the question, I do not propose to follow closely either Lord Ellenborough or Le Blanc, J., in the views taken by them upon the subject of forfeitures in Goodtitle dem Lucmore v. Saville (16 East, 95). In my judgment, in order to work a forfeiture of property, the acts which are to effect the forfeiture or affect the property, should be expressed in language so clear, express, and intelligible, as to leave no room or reason for doubt in the mind of the judge who is called upon to decide the question, that the act in question does, according to a fair and reasonable construction of the language used, and the understanding and intelligence of the parties to the contract, amount to a forfeiture. Indeed, as has been justly observed by the learned counsel for the defendant, it would be highly inconvenient and unjust that persons who may have invested, it may be, their whole fortune, in taking and setting up a public house, should, by reason of the uncertainty or ambiguity of the language of their lease, be kept in perpetual dread of the risk of a forfeiture, which might be their ruin. I do not, therefore, propose to take, on the one hand, the too severe and strict view, or, on the other hand, the too lenient view of the language here used with regard to offences against these Acts of Parliament; but I say that, upon every principle of common sense and justice, the particular acts which are to constitute or to incur a forfeiture ought to be most clearly defined and expressed, and to be most clearly understood between the parties. Now it was contended by Mr. Lloyd for the plaintiffs, that any act amounting to an offence against the Licensing Acts would be a breach of the tenant's covenant, and cause a forfeiture, even before it is ascertained or known whether there will or not be a conviction. But see what the result of that would be. It is an offence against the Act, under the closing clause, if the premises are allowed to be kept open after the prescribed time for closing, and it might be that an accident had happened in the neighbourhood, and the injured person might be brought to the house in a dying state, and the house might be kept open beyond the hour for closing, in order to administer the requisite necessaries and stimulants, in the hope of saving the man's life, and thus an offence against the Act would have been committed. But who in such a case would dream of prosecuting for it? or, if anybody did, what magistrate would convict the innkeeper ? I can only say, if the parties meant and intended to contract, that such acts as these should be followed by such consequences, nothing would have been easier than to say in a few words that, if the tenant should commit any offence against the Act followed by prosecution and conviction, and if he should repeat the offence and be again convicted, then the premises should be forfeited. If that was the intention of the parties, and the tenant chose to enter into such a covenant, and take his chance of the consequences, then no one could complain. It would be easy to express these consequences and what would be the cause of a forfeiture, in a single sentence, or even in a single line, if such were intended. I think it is only

Ex. Div.]

the previously recorded convictions, if any, and to declare as part of their sentence whether the present conviction should or should not be recorded upon the licence. The burden is thus thrown upon the justices. I think, not giving to the words " 'may affect" the extended meaning for which Mr. Loyd argued, viz., that they mean any act which, if other steps follow, will affect the licence, but giving to them a fair interpretation, that the reasonable construction of the covenant is, if the justices, having all the circumstances before them, choose not to order the conviction to be indorsed on the licence, then the licence is not affected; if, on the other hand, they choose to have it so indorsed, then the licence is affected substantially; then, for the first time there is something which may be regarded as the first step in a series of steps, which may end in that which may cause a forfeiture. That first step is a record of a conviction on the licence. By thus construing the words of this covenant I think we shall really be dealing fairly between the two parties, and putting on the words the interpretation which they may be reasonably supposed to have themselves intended. Mr. Morgan Lloyd, who omitted no possible point in favour of a harsh construction of the covenant, drew an argument from the 56th section of the Act of 1872, enacting that on conviction of a tenant for an offence, the repetition of which may render the premises liable to be "disqualified," the justices' clerk shall serve the owner of the premises with a notice of the conviction. It is obvious from the marginal note that the object of the section was to protect the owners, not only such owners as brewers, but mortgagees, trustees, and others interested in the property. Mr. Lloyd's argument, and it was a fair one, was that from the use of the phrase "repetition of the offence," the Legislature must be taken to have imagined that the mere conviction without indorsement on the record would affect the owner. I do not, however, think that that ought to alter our view of what is the fair meaning and construction of this covenant, and whether, upon the facts admitted, there has been a forfeiture. I have arrived at my present conclusion, not without considerable difficulty and doubt, but I congratulate myself upon being able to come to the same conclusion as that arrived at by the Lord Chief Baron, and to say that the defendant is not liable. Judgment for the defendant.

Solicitor for the plaintiffs, O. B. Wooler. Solicitors for the defendant, Iliffe, Russell, and Iliffe, agents for Barron, Darlington.

[Ex. Div. have, directly or indirectly, by himself or his partner, any share or interest in any contract or employment with, by, or on behalf of the council of such borough." And by sect. 53 of the same statute, if any person shall act as alder

man or councillor.. for any borough... without being duly qualified at the time of making the declaration hereinbefore required in that behalj, or after he shall cease to be qualified according to the provisions of this Act, or after he shall become disqualified to hold any such office, he shall, for every such offence, forfeit the sum of 501., to be recovered, &c."

The defendant was a tradesman and an alderman of the borough of M., and between 19th June and 31st Dec. 1874, different orders for the supply of goods by him for the use of the Corporation were given to him on the part of the toron council, the defendant from time to time sitting in his capacity of alderman on the committee of the council by whom the resolutions for the ordering of the goods were passed. The orders were in due course on each occasion sent to the defendant's shop, and the goods therein specified were supplied by him; the prices of the goods supplied on the several occasions being 3s., 68., 68., 107., 27. 10s., and 58. respectively. The total amount (131. 108.) was paid by the town council to the defendant by a cheque on the 6th May 1875.

In an action against the defendant for penalties under sects. 28 and 53 of the statute, for acting as an alderman after having become disqualified. the declaration charged that before and at the time of committing the offence, &c., the defendant, being an alderman of the borough, had become disqualified to hold the office by having an interest in certain contracts for the supply of goods to the town council for reward to the defendant, and after becoming so disqualified, and within three months before suit, he acted as alderman for the said borough, contrary to the form, &c.; and it was, upon the facts above stated,

Held, by the Court (Bramwell, Cleasby, and Amphlett, BB.), that the dealing in question was a contract within sect. 28 (see Nicholson v. Fields, 31 L. J. 233, Ex.; 7 H. & N. 810), but that the allegations in the declaration were not proved, and the defendant, by acting as an alderman, as alleged, had not rendered himself liable to the penalties imposed by sect. 53.

By Bramwell, B.- Sect. 28 only shows that the defendant was not de jure an alderman, and sect. 53 imposes a penalty upon a person, not for acting when not de jure an alderman but, for acting without being duly qualified at the time of making the declaration required by the statute upon his election.

By Cleasby, B.-The words of sect. 53, "after he shall become disqualified, &c.," must be read to mean, "after he shall become disqualified, and while he is so disqualified."

THIS was an action by the plaintiff, as a burgess of the borough of Macclesfied, to recover under sect. 53 of the Municipal Corporation Act (5 & 6 Will. 4, c. 76) divers penalties of 501. each against the defendant, for having acted as an alderman for that borough on various occasions after he had become disqualified to hold that office, by reason of his having a share or interest in a certain cortract with the council of the said borough, within the meaning and provisions of sect. 28 of the said statute. By his declaration the plaintiff charged