(1903) JELR 80164 (CA)    
Court of Appeal  ·  14 Jul 1903 ·  United Kingdom
Other Citations
[1903] 2 Ch 539;72 LJ Ch 716; 89 LT 249;51 WR 646; 47 Sol Jo 690
Vaughan Williams, Romer and Stirling LJJ
Core Terms Beta
legal covenant
mutual land co
plaintiff's case
construction of the covenant
personal representative of roger formby
breach of the covenant
possession of the land
lead judgment
said roger hesketh formby
learned vice-chancellor
case of a covenant
benefit of a restrictive covenant
present case
breaches of contract
general rule
vaughan william lj
virtue of the deed
rules of common law
personal covenant
conscience of persons
personal representative
restrictive covenants
doctrine of tulk v
plaintiff's construction
will of roger formby
house of lords
right of action
maxim actio personalis moritur
exception of actions
sale of land
real property
mere personal covenant collateral
question of the plaintiff
general rules
particular purpose
equity of the doctrine of negative easements
breaches of contract pass
present time
lord chancellor
instance of a plaintiff
lord justice
land company
valuable consideration
conclusions of the vice-chancellor
execution of the deed
particular way
special circumstances

VAUGHAN WILLIAM LJ (reading the lead judgment)

(stated the facts and said that as the Mutual Land Co took possession of the land by virtue of the deed of 1868, and the defendant claimed under them, the non-execution of the deed by the company only resulted in the rights thereunder being merely equitable, because there was no legal covenant, held that, on the construction of the covenant, “shop” therein meant“beer-shop,” and continued)

This view really puts an end to the plaintiff's case, but as another defence was raised and is discussed by the learned Vice-Chancellor, I think it right to deal with that point also. The learned Vice-Chancellor expressed his opinion that, even if the plaintiff's construction of the covenant was right, and there had been a breach of the covenant, nevertheless the plaintiff was not entitled to sue – that is to say, was not entitled to sue either as personal representative of Roger Formby, or as residuary devisee under the will of Roger Formby. I agree with …

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