v. HAWTREY. Collins M.R. 1903 some such statement. The defendant's solicitor thereupon said MOLYNEUX that he was pressed with other work and could not look at the document at that time. The result was that he did not look into the document produced, and went away without any knowledge in point of fact that the lease contained any covenants of an unusual and onerous character. At the close of that interview where did the onus rest? Had it been shifted from the shoulders of the vendor, upon whom it originally lay, to those of the purchaser, whose solicitor had not in fact had any opportunity of examining the document, because he had no time then to do so? Was the vendor then entitled to say that he had discharged the onus which lay upon him, because his agent had produced to the purchaser's solicitor, not the lease which was to be assigned, but another lease which the solicitor had no time to look at, on the ground that if he had looked at it he might have learned something which the vendor's agent did not himself tell him? The question, as it appears to me, is whether a fair and reasonable opportunity of ascertaining the existence of unusual and onerous covenants was given, having regard to all the circumstances, including the facts that the solicitor's engagements debarred him from then examining the document produced, and that the vendor never took any further steps whatever for the purpose of giving the purchaser's solicitor the information, of which he was prevented from availing himself at the time. The question whether such a fair and reasonable opportunity was given as to discharge the onus which lay on the vendor is really one of fact depending on the particular circumstances of the case. The learned judge has found that the opportunity given was not such as to discharge the onus which in such cases always lies on the vendor. The law on the subject is well established by a series of cases. The case of Reeve v. Berridge (1), to which I have already alluded, merely reiterates the law laid down in Hyde v. Warden. (2) In giving judgment in Reeve v. Berridge (1) Fry L.J. said with reference to the case of Hyde v. Warden (2): "In that case the question arose whether the taking possession of property agreed to be underleased, with notice of the (1) 20 Q. B. D. 523. (2) 3 Ex. D. 72. C. A. 1903 V. HAWTREY. Collins M.R. existence of the lease, was a waiver of all objections based on the terms of the lease. The question, therefore, so far as regards the question of notice, was the same as in the present MOLYNEUX case, and the Court was pressed to decide that notice of the lease was notice of its contents, and that on the authority of various cases, including Cosser v. Collinge. (1) The Court rejected the argument, and said: 'We think it may be considered as settled that the principle of that case can only be applied where (as, indeed, was the case in Cosser v. Collinge (1)) the defendant had a fair opportunity of ascertaining for himself the provisions of the original lease""; and then the learned Lord Justice proceeded to point out that there was no distinction for this purpose between a contract for a sub-lease and one for the assignment of a lease. As I have already mentioned, Byrne J. uses substantially the same language in In re Haedicke and Lipski's Contract. (2) The case of Hyde v. Warden (3) was decided before the Conveyancing Act, 1882. The 3rd section of that Act provides that "A purchaser shall not be prejudicially affected by notice of any instrument, fact, or thing unless-(i.) it is within his own knowledge, or would have come to his knowledge if such inquiries and inspections had been made as ought reasonably to have been made by him; or (ii.) in the same transaction with respect to which a question of notice to the purchaser arises, it has come to the knowledge of his counsel, as such, or of his solicitor, or other agent, as such, or would have come to the knowledge of his solicitor, or other agent, as such, if such inquiries and inspections had been made as ought reasonably to have been made by the solicitor or other agent." That seems to me to leave the law applicable to such cases as this substantially on the same footing as before. It lays down very much the same standard as that laid down by Lord Cranworth in Ware v. Lord Egmont. (4) He used the word "gross" in conjunction with the word "negligence" as indicating the standard by which the duty to make inquiry and inspection is to be measured; and therefore, from that point of view, unless it (1) 3 My. & K. 283; 41 R. R. 70. (2) [1901] 2 Ch. 666. VOL. II. 1903. 2 L (3) 3 Ex. D. 72. C. A. 1903 v. HAWTREY. Collins M.R. 66 could be said that it was gross negligence by the purchaser not to inspect a document, the vendor could not rely on an MOLYNEUX Opportunity having been given for inspection so as to relieve him from the onus of making disclosure. But the question whether the word "gross" is a desirable addition to the word negligence" in this connection is not perhaps very material. The question really is whether there has been an absence of reasonable care on the part of the purchaser or his agent. The question in such cases appears to me to be whether, having regard to the particular circumstances of the case, such as the relation of the parties and their respective engagements, there has been reasonable notice by the person on whom the onus of giving notice lay, or the circumstances are such that the person to whom notice had to be given is really estopped from saying that he had not notice. Upon the facts of this case I think the evidence justified the finding of Wright J. on the point in question, and that this appeal must be dismissed. MATHEW L.J. In this case there is no doubt that the covenants of the lease were unusual and onerous. There is also no doubt that the obligation to disclose the existence of those covenants lay on the vendor, and that the defendant was in fact ignorant of their existence; but it is said that, according to the equitable rule on the subject, knowledge of these covenants must, contrary to the fact, be imputed to the defendant. I entirely agree, if I may say so, with the view of the effect of the equitable rule as to constructive notice which was expressed by Kay L.J. in the case of English and Scottish Mercantile Investment Co. v. Brunton. (1) He said in giving judgment in that case: "I venture to say that the doctrine of constructive notice, if carefully applied and limited in the way pointed out by Wigram V.-C. and Lord Lyndhurst, is a doctrine which will never defeat the ends of justice, but will promote them always. If we were to apply it as we are asked to apply it in this case, we should not only be extending it beyond what has (1) [1892] 2 Q. B. 700. C. A. 1903 V. HAWTREY. Mathew L.J. been laid down in any previous case, but we should be extending it beyond the limits which Lord Lyndhurst and Wigram V.-C. so carefully defined." That passage is taken from the judg- MOLYNEUX ment of the learned Lord Justice in a case in which the Court of Appeal was considering the proper limits within which the application of the doctrine of constructive notice ought to be confined. It was there held that, though the solicitor for the respondents, who were proposing to advance money to a company on an assignment of certain property as security, had notice of the existence of certain debentures charging property of the company, the fact that he had such notice did not affect the respondents with constructive notice of the contents of the debentures, because the solicitor had been told by a director of the company that the debentures were not secured by any trust deed which might cover the property proposed to be assigned as security. Other cases besides that case and Ware v. Lord Egmont (1) might be referred to in which judges have declined to make any extension of the equitable rule as to constructive notice beyond the limits within which it had been decided to be applicable for instance, Lindley L.J. in Manchester Trust v. Furness (2), and Lord Herschell in London Joint Stock Bank v. Simmons. (3) In reference to the proposition that the test in such cases is whether a fair opportunity of inspection has been given, I prefer to be guided by the language of the Conveyancing Act, 1882, which provides that a purchaser shall not be prejudicially affected with notice of anything, unless it would have come to his knowledge if he had made such inquiries and inspections as ought reasonably to have been made by him. It seems to me that the effect of that enactment is very much to elucidate the principles upon which the applicability of the doctrine of constructive notice depends. Looking to the terms of the Act, the question whether the defendant must be taken to have had notice of the covenants of the lease appears to depend on whether the defendant's solicitor had such an opportunity and was placed in such a position that (1) 4 D. M. & G. 460. (2) [1895] 2 Q. B. 539, at p. 545. 2 C. A. 1903 V. HAWTREY. Mathew L.J. under the circumstances he ought reasonably to have made such an inquiry and inspection as would have informed him of MOLYNEUX the existence of these covenants. That comes really to be very much a question of fact. The defendant's solicitor, it appears, went to the office of the house agent acting for the plaintiff, and, in the course of conversation on the subject of the proposed assignment of the lease, asked to see the lease, thereby indicating that he was desirous of information as to the terms of it. He was told that he could not see it then, because it was deposited with other articles belonging to the plaintiff at some repository, but the house agent said that he could shew him another lease in the form which was common in the case of leases of premises forming part of the same property. The defendant's solicitor, however, appears to have in effect pointed out that it would be time enough to go into the matter later: that the negotiations were still going on and might not come to anything; and the reasonable inference from what passed is, I should say, that it was agreed that the matter should stand over. I cannot see that anything then took place which could relieve the vendor from the obligation, which was in common fairness imposed upon him, of disclosing to the defendant the unusual nature of the lease which she was purchasing. The negotiations went on, and no further effort was made on the part of the vendor, or his agent, to furnish information to the purchaser as to the terms of the lease; and the contract was ultimately entered into by the defendant without any inspection of the lease, and in ignorance of the existence of these unusual covenants. Without going through all the cases which have been referred to on the subject, the question appears to me to be whether under the circumstances a reasonable opportunity was afforded to the purchaser, by what took place, of becoming acquainted with the exceptional terms of the lease. That, as I have said, appears to me to be really a question of fact, and it seems to me to have been rightly decided by the learned judge. COZENS-HARDY L.J. I agree that this appeal should be dismissed. I think it is quite plain, when the lease in this |