to be charged with the repairs, and that person had a right to traverse the finding of the jury, though he had not a right to traverse the directions of the Commissioners founded on that presentment; Wingate v. Waite (a). We find that from the earliest times that course has been adopted. In the charge given in Callis on Sewers, Appendix, p. 365, ed. by Broderip, the jury are to inquire "of what lands and grounds are lying and being within the reach of injury or danger by any defects or defaults, and to whom they are belonging; and of the persons fit and proper to be charged to the repairs, with the quantity and quality of their estates; so that all such persons may be charged and taxed in proportion to their rights and interests." This is not merely incidental to mentioning the lands, but it is an essential part of the inquiry. For it would be monstrous if an order may be made upon a person and carried out by the imposition of a fine and by distress, without any means afforded to him of disputing his liability, or any opportunity given to him of being heard, or of traversing the finding of a jury made behind his back; and he is to be told that if the Commissioners have done wrong, and exceeded their jurisdiction, he may bring an action against them. That is not the course of our law; though there are one or two singular exceptions which have been reprobated, viz., the finding of a fugam fecit by a coroner's jury, which occasioned a forfeiture of lands and goods. We are asked to put the defendant in the position of a person who has no opportunity of answering the charge. That could not have been done before stat. 3 & 4 W. 4. c. 22. The case of a person coming into the ownership of property after a presentment is just the same as regards (a) 6 M. & W. 799.

1862.

The QUEEN

v.

WARTON.

1862.

The QUEEN

v.

WARTON.

his liability, as if there had been no presentment; and I cannot see what protection it is to say to a person who denies his liability:-" A. B. had the opportunity of contesting his liability six or seven years ago, and did not do so." As a general rule a person must have an opportunity of answering, unless the Legislature has interfered with that right.

That brings me to sect. 13 of stat. 3 & 4 W. 4. c. 22., which recites that doubts had arisen whether a presentment of a jury was not necessary on every occasion; and I apprehend the doubts were whether, when fresh repairs were to be done, it was necessary to inquire by a jury as to the continuance of the liability of a person who had been found liable. Then the Legislature thought that they might go to this extent, --that where a person has had an opportunity of traversing the presentment, and has not done so, he may by reason of his acquiescence be considered liable so long as the same commission lasts. From the change in the phraseology of the section, which has been adverted to, and the use of the word "such" in the clause which empowers the Commissioners to make the order, it seems to me that the order is to be made only on the person or body presented. By introducing the words "the owners and occupiers for the time being," the Legislature may have merely meant to say, "We do not take away from the lands which persons own or occupy any liability thrown upon them"; because by the old law the fine or penalty is leviable upon the lands either by taking the rents and profits or by distress. Whether that be so or not, the order is distinctly to be made on "such person, body politic or corporate," that is, "the person, or body politic or corporate, so presented as aforesaid."

Therefore, whatever meaning is to be given to the words "the owners and occupiers for the time being," Mr. Lush does not bring the case within this section: and, if not, there is no foundation for these orders, because there has been no presentment of the liability of the person charged by them.

BLACKBURN J. I do not express any opinion on the points not necessary to be decided, viz., as to the extent of the power of the Commissioners to survey, to take evidence, and to act upon evidence on the question of fact whether the sea wall or other defence is out of repair.

But I think that the first order is not good on the ground that it was made on the defendant without the presentment of a jury that he is the person upon whom it should have been made. It was laid down, in Wingate v. Waite (a), that the presentment of a jury is the foundation of the jurisdiction of the Commissioners. However that may be, it is clear that the presentment of a jury that a particular person is liable is a necessarily preliminary step to an order on him to repair; because it is unjust and contrary to the general course of law to make such an order on a person ex parte, without giving him an opportunity of being heard.

Then the question is whether sect. 13 of stat. 3 & 4 W. 4. s. 22. has altered that. [His Lordship read the section.] That dispenses with a fresh presentment where a particular person has been presented as liable to repair in respect of any lands. Whether an order can be made on the person named in the presentment after he has in fact ceased to own or occupy the lands in respect of which the presentment proceeded, is a question of diffi(a) 6 M. & W. 739.

1862.

The QUEEN

V.

WARTON.

1862.

The QUEEN

V.

WARTON.

culty which it is not necessary to decide; indeed it is not competent for us now to decide what would be the proper course in such a case. The Commissioners certainly may summon another jury, and have a fresh presentment on the new owner. That course would I think be safe, though, as Mr. Lush says, it is inconvenient; or they may in this case make the order on Stephen Allen, and, if so made, it must be competent for him to say that it was void because he had ceased to be owner of the land. But when an order, as in the present case, is made without a presentment which the person upon whom the order is made could traverse, and is made merely upon declarations that he was owner or occupier, which he had no opportunity of denying, it would be contrary to the general course of law to hold him liable upon it; and if the Legislature intended to enact such an anomaly they should have expressed it in clearer language.

Rule absolute.

1862.

HALL against The CITY OF LONDON BREWERY Friday, Company, Limited.

June 6th.

Lerse.

1. In a contract for the demise of land, a promise of quiet enjoyment Quiet enjoyduring the term is implied by law.

2. A declaration for breach of a covenant or contract for quiet enjoy. ment must allege an eviction by a person claiming title paramount.

THE declaration stated that heretofore, to wit, on the

29th October, 1860, an agreement of demise was made by and between the defendants and the plaintiff, whereby they agreed in the words and figures following (that is to say): "Memorandum of an agreement entered into the 29th October, 1860, between The City of London Brewery Company, Limited, by N. C., secretary, of the one part, and Edward Hall of the other part, as follows; viz. the said Company do hereby agree to let from this day unto the said Edward Hall All that messuage or tenement, with the appurtenances, known by the sign of The White Hart, situate in the Borough Market, in the parish of St. Saviour, Southwark, at a clear yearly rent of 507. of lawful British money, to be paid quarterly without deduction of any kind except in respect of income tax, and at the same rate for any period less than for a quarter of a year, the first quarterly payment to be made on the 29th January now next. And the said Edward Hall doth hereby agree to take the said house and premises upon the terms above mentioned, and to pay the said rent in manner aforesaid, and the land tax, metropolitan drainage rate and sewers rate, and all parliamentary and parochial taxes in respect

ment. Declaration. Breach.