Harrison, Ainslie & Co. v. Lord Muncaster, App. dealing, I think it will be seen that the present decision will come within what he there said. I take as the proposition by which the present case must be decided the statement that it appears to be in every case a question of fact whether the quiet enjoyment of the land has or has not been interrupted. I should decide that question of fact in favour of the present plaintiffs, for to swamp a man's mine so that he cannot work it is certainly an interruption of his enjoyment of the mine. But the Lord Justice goes on to say that the covenant appears to be broken where the ordinary and lawful enjoyment of the demised land is substantially interfered with by the acts of the lessor or those lawfully claiming under him. The enjoyment, therefore, must not only be interrupted, but it must be interrupted by the acts of the lessor or those claiming under him. Those words require some explanation, and, having regard to the subject-matter with which the Lord Justice was dealing, I have no doubt that they mean an interruption by the acts of the lessor, or those claiming under him to have the right to do the acts which caused the interruption. The act that is here relied on as having originally caused the interruption was the picking away of the stratum; that act was not done by the lessor, but by persons claiming under him to have the right to do that act. If, therefore, it can be said that that act was, within the meaning of the covenant, the cause of the interruption, then the covenant was broken. But the immediate cause of the interruption was the flow of water into the plaintiffs' mine, and that was not authorised by the defendant. It has already been held that the words of such a covenant as this must be restricted, and they have accordingly been so restricted. This covenant must, therefore, be construed as including only what was contemplated by both parties at the time. when it was entered into. The parties neither could have foreseen, nor ought they by reasonable care to have foreseen, that the consequence of the act of picking away the limestone would be to cause an irruption of water into the plaintiffs' mine. No person of ordinary intelligence could have contemplated such a consequence, which was not the natural consequence of the act done. It was not contended that the act of picking could amount to a breach of the covenant. The flow of water was an extraordinary result; it could not have been foreseen by the parties, and therefore is not within the terms of the covenant, which only includes acts of the lessor or persons claiming under him, and the consequences of acts which could have been foreseen. The defendant consequently is not liable, and the judgment of Mr. Justice Day must therefore be affirmed. BOWEN, L.J.-The Parkside Company's mine is undoubtedly held by persons claiming under the defendant; but the question to be decided is whether what has here happened amounts to an interruption of the enjoyment of the plaintiffs' mine within the meaning of the covenant for quiet enjoyment. The plaintiffs' mine was flooded owing to the manner in which the Parkside Company's mine was worked. The act done by the company was the picking away of limestone rock, which was followed by a flow of water into the plaintiffs' mine. It was said by Sir Horace Davey that the picking away of the rock by the lessees of the defendant was an occurrence which was foreseen by the defendant when he made the lease; and that although the consequences which followed were not foreseen, yet the act itself was foreseen, and that a man must be held to be liable for the direct and necessary consequences of such an act. The fallacy in that mode of putting the plaintiffs' case is the assumption that the interruption here, which is the only matter against which the defendant covenanted, consisted of the picking of the limestone. what interrupted the enjoyment of the plaintiffs' mine was not the picking away of the limestone, but the flow of water into their mine, which alone constituted the interruption; and unless it can be made out that that interruption was caused by the defendant or by persons claiming under him, the judgment of Mr. Justice Day must be upheld. In one sense I But agree that the interruption was caused by the act of the Parkside Company; but in order to determine whether it was caused Harrison, Ainslie & Co. v. Lord Muncaster, App. by their act within the meaning of the covenant, it is necessary to draw a distinction between an act and its consequences. The defendant, no doubt, authorised the act done in this case; but unless the flow of water, which was the consequence of that act, can be shewn to amount to an interruption by the Parkside Company, the defendant will not be liable. This is a pure question of construction of the meaning of the covenant, which is in the usual form; and it is to be remembered that a covenant of this kind must be construed with reference to the transaction, which is one of demise, so as to give effect to what may reasonably be supposed to have been the intention of the lessor and lessee. If the covenant were an implied and not an express covenant, it would be measured by what both the parties must have intended should be the minimum effect given to the transaction, and the minimum security given for the possession which was secured by the lease. When the transaction is one between a landlord and a lessee, a covenant for quiet enjoyment is not, in the absence of express words, to receive such an interpretation as would make it wholly unreasonable, and give to the lessee a security which was beyond the possible intention of the parties. The case of Dennett v. Atherton (2) shews that the covenant is not an absolute warranty for quiet enjoyment. The Court of Exchequer Chamber there held that a warranty was not to be implied from a covenant for quiet enjoyment, that the land was capable of being used for any purpose not expressly excluded. It, therefore, seems to me that it would be unreasonable to suppose that a covenant for quiet enjoyment, in the absence of express words, would make a lessor liable for every possible consequence which might happen from any acts done under colour of his title by any person who claimed under him. I think it would be unreasonable to hold that the covenant amounts to a warranty that nothing should happen to interfere with the quiet enjoyment of the lessee, if such an event could possibly be traced to any lawful act of the lessor or of those who claimed under him. In the present case, was the flow of water into the plaintiff's mine caused by the Parkside Company, VOL. 61.-Q.B. within the meaning of the covenant? I think that the covenant must be confined within reasonable limits, and that an interruption under such a covenant is not caused by a lessor or by those claiming under him unless it is caused by a direct act, or by some act the consequence of which it was, or ought by reasonable care to have been, foreseen would in the particular case be an interruption. In Shaw v. Stenton (4) the interruption seems to have been treated from first to last as one which had been caused by the direct act of the lessor, and not as a consequence which could not have been foreseen at the time; and upon that ground I think that Shaw v. Stenton (4) is not inconsistent with the judgment we are now giving. It also seems to me that the passage in the judgment in Sanderson v. The Mayor of Berwick (1), which has been referred to, must be read in the way in which it has been read by the Master of the Rolls, and I have no doubt that that was what was meant by the Court of Appeal. There is nothing in Dennett v. Atherton (2) that is inconsistent with that decision, when it is observed that in Dennett v. Atherton (2) the purpose for which the land was used was not a purpose which was in the reasonable contemplation of the parties at the time when the demise was made. I, therefore, think that the judgment of Mr. Justice Day ought to be affirmed. KAY, L.J.-It is very difficult to lay down any general rule for the construction of a covenant for quiet enjoyment; but what we have to determine is whether under the particular circumstances of this case there has been a breach of this covenant which would make the covenantor, the lessor, liable. I observe that the covenant is the ordinary restricted covenant, and not the absolute covenant that is generally put into a mortgage. The Parkside Company are certainly persons claiming under the lessor, the defendant, because they are lessees, although under a lease granted to them previously to that granted to the plaintiffs; and it is not disputed that the covenant applies to acts done by them, if those acts are acts of interruption or eviction. The question, therefore, is whether the act that was P of Shaw v. Stenton (4), in Anderson v. Oppenheimer (5)—a case of a flow of water from a cistern which had been provided by the landlord for the use of all the occupiers of the house-Mr. Justice Field uses these words: "The flow of the water into the plaintiff's warehouse to the extent proved is, I think, such an interference with the plaintiff's possession as to amount to an interruption within the meaning of the covenant; and if that interruption had been caused by any wilful act of the defendant-Andrews v. Paradise (6)—or a probable or necessary consequence of any act of the defendant-Shaw v. Stenton (4)—I should have held that there had been a breach of the covenant for quiet enjoyment." It is, therefore, plain that Mr. Justice Field understood that Shaw v. Stenton (4) only decided that a probable or necessary consequence of an act by a lessor would, if it interrupted the quiet enjoyment of the lessee, be a breach of a covenant of this kind. For these reasons, I agree with the decision of the other members of this Court, and think that the appeal should be dismissed. Harrison, Ainslie & Co. v. Lord Muncaster, App. done in the Parkside mine is an act that amounts to a breach of the covenant for quiet enjoyment. It seems to me to make no difference, so far as the question we have to determine is concerned, whether the act in question was done by the Parkside mine or by the lessor himself. It was admitted that what was done by the Parkside mine was done in the course of proper mining, and not in breach of any duty on the part of the company to their lessor. If the lessor had done the act, he would have been working his own adjoining mine in a lawful manner in getting the minerals, and nothing in the nature of negligence on the part of the company here has been suggested. What actually took place was an extraordinary event: a supply of water, the nature of which is not even now known, was tapped by the working in the Parkside mine, and it turned out to be of such a peculiar nature that it flooded not only the Parkside mine, but also the plaintiffs' mine, which was on the rise of the Parkside mine. It is plain that an event of the kind that occurred Icould not have been foreseen at all. In fact, the accumulation of a body of water in the neighbourhood of the Parkside mine, sufficient to cause such a flood, was not a thing of which either of the parties to this covenant either had or could have had any suspicion. I therefore think it may be inferred that this occurrence-the consequence of the lawful working of the Parkside mine-was one that was not and could not have been foreseen, and was not in any sense the necessary or probable consequence of the working of the Parkside mine. The sole question, therefore, to be determined in this case is whether this covenant provided against such a consequence, and contemplated what was not a necessary consequence of lawfully working the Parkside mine, but was a consequence that the parties did not and could not foresee. It would, in my opinion, be going too far to hold that a covenant of this kind contemplates such a consequence, or that a consequence of a lawful act by a covenantor, which consequence was not a necessary or probable consequence of what he did, and could not have been foreseen could be within the scope of this covenant. I observe that when dealing with the case Appeal dismissed. Solicitors -Dowson, Ainslie & Martineau, for plaintiffs; H. T. Boodle, for defendant. [IN THE COURT OF APPEAL.] 1891. ) BOUND v. LAWRENCE. Master and Servant-Grocer's Assistant -Conviction for Leaving Service without Notice Manual Labour Workman Employers and Workmen Act, 1875 (38 d 39 Vict. c. 60), s. 10. [For the report of the above case, see 61 Law J. Rep. M.C. 21.] (5) 49 Law J. Rep. Q.B. 456; Law Rep. 5 Q.B. D. 602, 605. (6) 8 Mod. 319. Practice Writ of Summons-ServiceForeign Partnership-Place of Business within Jurisdiction-Service on Person having Management-Rules of Supreme Court, Order XLVIII. a, rules 1 and 3. Order XLVIII.a, rules 1 and 3, do not apply to a firm carrying on business in partnership in Glasgow, the members of which are domiciled and resident in Scotland, and having no place of business within the jurisdiction; nor do the rules affect the principle laid down in Russell v. Cambefort & Co. (58 Law J. Rep. Q.B. 498; Law Rep. 23 Q.B. D. 526). The firm of A. & Co., woollen manufacturers, consisted of two partners, who carried on their manufactory in Glasgow and resided there. MacC. rented an office in London, consisting of two rooms in Milk Street Buildings, Cheapside, and acted as agent for A. & Co. for the receipt of orders and instructions from London customers, which he transmitted to Glasgow for approval, and was paid a commission on business done. One room was used by MacC, as an office, and the other was used by him for storing samples of the firm's goods. The name of A. & Co. appeared in large letters outside MacC.'s office and at the doorway, but on the doorway MacC.'s name was written below the firm's name in smaller letters. Upon A. & Co.'s letter paper, in the same space allotted for their Glasgow address, the words "London Warehouse, 2 Milk Street Buildings," also appeared-Held (by the Queen's Bench Division and by the Court of Appeal), that MacC's office was not a place within the jurisdiction of the business of the partnership of A. & Co.; that MacC. was not a person having control of the partnership business; and that service of a writ of summons, issued against A. & Co. at the suit of G., upon MacC. was not a good service. Held also, that the firm did not * Coram Q.B. D.: Lord Coleridge, C.J., and Wright, J. C. A. Lord Esher, M.R., and Kay, L.J. carry on business within the jurisdiction, and that the writ of summons having been improperly issued must be set aside. This was a motion on the part of the defendants that the writ of summons to which they had entered a conditional appearance, and the service thereof, and all subsequent proceedings in the action, be set aside, on the ground that the writ had been improperly issued for service and served within the jurisdiction of the Court, by reason that all the members of the defendants' firm resided and carried on business out of the jurisdiction of the Court-namely, at or near Glasgow in Scotland and not within such jurisdiction. The plaintiff was a merchant carrying on business in the city of London, and the writ was indorsed with a claim of 3451. 68. 8d. for damages sustained by him through the defendants' breach of contract, dated the 21st of March, 1890, in delivering certain flannel goods to him in London which were not in accordance with the sample pattern. The defendants were described in the writ as William Anderson & Co., of 2 Milk Street Buildings, Cheapside, in the city of London. On the 7th of October, 1891, a copy of the writ in the action, together with the following notice, was, in pursuance of Order XLVIII.a (1), rule (1) Order XLVIII. a, rule 1: "Any two or more persons claiming or being liable as co-partners, and carrying on business within the jurisdiction, may sue or be sued in the name of the respective firms, if any, of which such persons were co-partners at the time of the accruing of the cause of action; and any party to an action may in such case apply by summons to a Judge for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, co-partners in any such firm, to be furnished in such manner, and verified on oath or otherwise as the Judge may direct." Rule 3: "Where persons are sued as partners in the name of the firm under rule 1, the writ shall be served either upon any one or more of the partners, or at the principal place, within the jurisdiction, of the business of the partnership upon any person having at the time of service the control or management of the partnership business there; and, subject to these rules, such service shall be deemed good service upon the firm so sued, whether any of the members thereof are out of the jurisdiction or Grant v. Anderson & Co., App. 4 (of the Rules of June, 1891), served on one Duncan MacCallum at 2 Milk Street Buildings. The notice signed by the plaintiff's solicitors was as follows: "Grant v. Anderson & Co.-We hereby give you notice that this writ is served upon you as the person having at the time of such service the control or management of the partnership business of the defendants, pursuant to Order XLVIII. rule 4 of the Rules of the Supreme Court, 1891." Affidavits in support of the present motion were filed, and were to the effect that the only partners in the defendants' firm were James Anderson, who resided near Glasgow in North Britain, and Robert Anderson, who also resided near Glasgow, neither of whom had any place of residence within the jurisdiction of the Court. That the firm carried on business as woollen manufacturers in Glasgow, and that they did not carry on business within the jurisdiction of the Court. The office at No. 2 Milk Street Buildings, where the writ was served, was occupied by Duncan MacCallum, who was the tenant of the premises and paid the rent out of his own moneys; he conducted the business in London on his own account as agent for the firm, and his remuneration consisted of a commission on the business done. The agreement between MacCallum and the defendants was verbal only. The premises consisted of a small office and sample room, and no stock was kept on the premises. MacCallum had no power to conclude transactions except on express instructions from the defendants in Glasgow. The negotiations between the plaintiff and the defendants were for the most part conducted by correspondence with the defendants at Glasgow. plaintiffs' offer for the goods in question was addressed to Glasgow, and the defendants' acceptance was dated from Glasgow. When the plaintiff made any communication to MacCallum it was transmitted to Glasgow for instructions. The not, and no leave to issue a writ against them shall be necessary: provided that in the case of a co-partnership which has been dissolved to the knowledge of the plaintiff before the commencement of the action, the writ of summons shall be served on every person within the jurisdiction sought to be made liable." An affidavit was filed by the plaintiff in opposition, which stated that the premises No. 2 Milk Street Buildings were not merely an office, but consisted of a large warehouse on the first floor. The large front windows of such warehouse opened on the important business thoroughfare of Milk Street, Cheapside, and the only names written in large letters on the windows were "William Anderson & Co.," and the name of MacCallum in no way appeared thereon. There was a side entrance, where on a board the name "William Anderson & Co." appeared in very large letters, and the name of MacCallum also appeared, but in very small letters. That MacCallum was the only representative of the defendants in London, and conducted the business on their behalf only, and not on his own account. The defendants used printed memoranda and note-paper on which, in the same space allotted for their Glasgow address, the following words were also printed : "London Warehouse, 2, Milk Street Buildings, Correspondence was also put in, tending to shew that the negotiations for the goods were carried on between the plaintiff and MacCallum, as representative of the defendants. Mr. MacCallum made an affidavit to the effect that he objected to accept service of the writ because it had nothing to do with him; that the premises No. 2 Milk Street Buildings consisted of a front room 20 feet by 15, and a back room 12 feet by 14, neither of which was used for warehousing goods, but only for keeping samples and small parcels of goods sent to him for delivery to his customers. The back room was his office. He conducted the business on his own account as agent, and his remuneration consisted of a commission on the business done. The agreement produced marked "A" was his agreement for tenancy of the premises. Robson, for the defendants.-It is submitted that the service of this writ should be set aside upon the grounds set out in the notice of motion. The defendants' firm consists of two partners, both of |