we have already expressed our opinion that the plea is a good one. It rests upon the decision of this Court in Young v. Austen (1), and we are not disposed to interfere with that decision. The main point discussed before us was with reference to the breach assigned in the declaration. Now, the declaration sets out a charterparty by which the owner agrees that the Ceres, "expected to be at Alexandria about the 15th of December, 1871," shall "with all convenient speed" sail and proceed to that port, and there receive from the charterer a cargo of cotton-seed. The breach, treating that first statement as part of the contract, alleges that the said ship was not expected to be at Alexandria about the said 15th of December, 1871, but was then in such part of the world and under such engagements that she could not perform those engagements and arrive at Alexandria about that day. The question is whether these words "expected to be at Alexandria about the 15th of December, 1871," are words merely of description, which were not intended to enter into the contract, or are in the nature of a warranty. I am of opinion that they amount to a warranty that the ship was expected to be at Alexandria about the day named, and that the breach is well assigned. The words are doubtless somewhat vague; and I must own that I have felt some difficulty as to the proper construction which they ought to receive, and that that difficulty is not entirely removed from my mind. But, upon the whole, I think the proper conclusion is that they form part of the contract. What weighs with me is this, that it must be of the utmost importance to the charterer to know when the ship is to be at the port of loading. It is a statement which one would expect to find in all charterparties. If the words "expected to be at Alexandria about the 15th of December" do not amount to a contract that the ship is to be there, or that she is in such a part of the world that she may be reasonably expected to be there, about that time, there is no undertaking as to the position of the ship at all, and the charterer is wholly at the mercy of the shipowner. I should hesitate to adopt a construction which would lead to such a consequence, unless forced to do so by the plain words of the contract; and I think we do no violence to the language of (1) Law Rep. 4 C. P. 553. 1873 v. MASSEY. this charterparty in holding those words to be in the nature of a CORKLING Warranty. It is not necessary to say that they amount to a condition. The distinction between a warranty and a condition is well pointed out in the very elaborate judgment of Williams, J., in the Exchequer Chamber, in Behn v. Burness (1), to which it will be sufficient to refer. I think the proper construction of this charterparty is that the statement as to the expectation of the ship's arrival at the port of loading is in the nature of a warranty, giving the charterer a cause of action for a breach of it, and that the breach is well assigned. I therefore think there ought to be judgment for the plaintiff on the demurrer to the declaration, and for the defendant on the demurrer to the plea. HONYMAN, J. I am of the same opinion. As to the plea, Young v. Austen (2) is in point, and we are bound by it. As to the declaration, the statement about Alexandria is, I think, part of the contract. It is the only thing to enable the charterer to know when to have the cargo ready. The ship-owner undertakes that the ship is in such a position that she may reasonably be expected to be at Alexandria about the 15th of December, 1871. I do not see much difference between this case and Gorrissen v. Perrin. (3) There, A. contracted to sell to B. 1170 bales of Gambier "now on passage from Singapore, and expected to arrive in London, viz. per Ravenscraig, 805 bales, per Lady Agnes Duff, 365 bales:" and it was held that this was a warranty that the goods were then on passage. So, in Oliver v. Fielden (4), where the vessel was described in the charterparty as "ready to receive cargo in all May," it was held that the readiness to receive a cargo in all May was a condition precedent to the plaintiff's right to recover for not loading a full cargo, that statement not being a mere description, but part of the contract. It is unnecessary to say whether, if this had been an action for not loading a cargo, it would have been any answer to say that the vessel was not expected to arrive at Alexandria about the 15th of December. The distinction is well pointed out by Williams, J., in delivering the judgment of the Exchequer (1) 3 B. & S. 751; 32 L. J. (Q. B.) 204. (2) Law Rep. 4 C. P. 553. (3) 2 C. B. (N. S.) 681; 27 L. J. (C. P.) 29. (4) 4 Ex. 135; 18 L. J. (Ex.) 353. Chamber in Behn v. Burness. (1) I agree that there should be judgment for the plaintiff on the demurrer to the declaration, and for the defendant on the demurrer to the plea. 1873 CORKLING V. MASSEY. Judgments accordingly. Attorneys for plaintiff: W. A. Waller & Hardson. PRETTY AND WIFE v. BICKMORE. Nuisance-Insecure Coal-plate in a public Footway-Liability to repair- The defendant let premises to a tenant under a lease by which the latter -covenanted to keep them in repair. Attached to the house was a coal cellar under the footway, with an aperture covered by an iron plate which was at the time of the demise out of repair and dangerous. A passer by in consequence fell into the aperture and was injured :— Held, that, the obligation to repair being by the lease cast upon the tenant, the landlord was not liable for this accident. Held also, that the provision in s. 102 of the Metropolis Local Management Act, 1855 (18 & 19 Vict. c. 120), makes no difference in this respect. THE first count of the declaration stated that the defendant, being possessed of a messuage with an arched area and vault in front belonging thereto, in which a certain iron coal-plate was affixed over an aperture in the covering of the said vault (and which said covering was for the protection of persons using the highway there) in, under, and abutting on a highway, wrongfully, knowingly, negligently, and improperly suffered the said coal-plate and the fastening of the said coal-plate, with the stonework surrounding the same, to become and the same were out of repair and a dangerous nuisance to persons lawfully passing on and along the highway, and, whilst the same were such a dangerous nuisance as aforesaid, the defendant let the said messuage, area, and vault to a tenant without requiring and obliging the tenant to repair the same, and without requiring and obliging the tenant to repair the coal-plate and the fastening of such plate together with the stone (1) 3 B. & S. 751; 32 L. J. (Q. B.) 204. May 7. 1873 PRETTY v. BICKMORE. work surrounding the same: by means of which premises and of the wrongful and negligent conduct of the defendant in that behalf, the female plaintiff, at the time she was the wife of the male plaintiff, whilst passing along the said highway, and whilst the said messuage, area, vault, and premises were in the possession of the tenant of the defendant, and whilst the defendant was entitled to the premises subject to the said tenancy, fell through the said aperture from the said highway into the area or vault, and was greatly hurt, &c. Second count, that, before the committing of the grievances thereinafter mentioned, the defendant, being possessed of the said messuage, area, and vault belonging thereto, in which a certain iron coal-plate was affixed over an aperture in the covering of the said area and vault (which said covering was for the protection of persons using the said highway there) in and abutting upon such highway, let the same to a tenant upon the terms that the defendant should and would put and would keep the said covering of the said area and vault and the said coal-plate and its fastening and surrounding stone-work in repair; and the said messuage, area, and vault were at the time of the committing of the said grievances in the possession of the said tenant of the defendant as the defendant's tenant on the terms aforesaid: yet the defendant wrongfully neglected to put and to keep the area and vault and the coal-plate and its fastening and surrounding stone-work in repair, and wrongfully and knowingly permitted the same to become and the same then were out of repair and a dangerous nuisance to persons lawfully using the highway: by reason of which premises, &c., as in the first count. Third count, that, after the making, passing, and coming into operation of the Act for the better local management of the Metropolis, 1855 (18 & 19 Vict. c. 120), and of divers Acts amending the same, and of divers orders in council made under and by virtue of the said Acts and Act, and at the time of the committing of the grievances thereinafter alleged, the defendant was the owner within the intent and meaning of the said Acts and Act of a house and premises to which was then belonging a certain vault, arch, and cellar made either before or after the commencemeat of the said Act or Acts under a certain street situate and being in a parish and district subject to the said Act, Acts, and orders in council, into which said vault, arch, and cellar there was at the time aforesaid an opening in the said street; and that, under and by virtue of the said Act, Acts, and orders in council, it became and was the duty of the defendant to repair and keep in proper order the said vault, arch, and cellar, and all openings thereto in any such street as aforesaid: yet the defendant, being such owner as aforesaid, did not repair and keep in proper order the said vault, arch, and cellar, and all the openings into the same in the said street; whereby the female plaintiff, at the time she was the wife of the male plaintiff, whilst passing along the said street, fell through the said opening in the said street into the said vault, arch, and cellar, and sustained such hurt, &c., and incurred such expenses, &c., as in the first count mentioned. Pleas,-1. not guilty; 2. not possessed; 3., to first and second counts, that the defendant did not let the messuage, area, and vault on the terms alleged; 4., to third count, that the defendant was not the owner of the said house, vault, arch, cellar, opening, and premises, or bound to repair and keep in proper order the same, within the meaning of the Act, as in the third count alleged. Issue thereon. The cause was tried before Brett, J., at the last sitting at Westminster in this term. The facts were as follows:-The defendant was the owner of a house in Boundary Road, St. John's Wood, which he let in June last to one Kay on a lease for twentyone years, determinable at the end of the first seven or fourteen years, at the yearly rent of 657., payable quarterly, with a covenant by the lessee to keep the premises in repair; the lessor having agreed to put them in repair and convert the lower part into a shop. Kay entered into possession of the premises and paid rent. Connected with the premises was a coal-cellar under the foot-path of the public highway, the flap or iron covering of the hole or shoot whereof was at the time of the demise out of repair so as to be dangerous. The female plaintiff, walking along the foot-way, stepped upon the flap, which gave way, and she was injured. At the time of the accident the defendant's workmen were still executing the repairs which he had stipulated to do. But the tenant had entered into possession and paid rent. 1873 PRETTY V. BICKMORE. 4 |