On a foreign judgment. The judgment sued on cannot be im peached on the merits. This rule applies to foreign judgments. Grounds on 3. On or about the 1st day of -, 1877, in the Isle of Man, in a suit depending between the now plaintiffs and the of defence in an action on the judgment. But a matter which would be a ground for an absolute and unconditional injunction against the continuance of this action, and which even formerly might have been set up as an equitable defence, may be set up as a defence; or the defendant may claim an injunction on the strength of it in his statement of defence. Whether the former requirement, viz., that the facts must be such as to be ground for an absolute and unconditional injunction, would now be necessary for the purpose of a defence, it is not easy to determine. This would not, however, apparently be necessary to found a claim to an injunction, as by the 25th section, sub-section 8, of the Judicature Act of 1873, injunctions may be granted, either conditionally or unconditionally, by all the divisions of the High Court. A matter which is the subject of error cannot be set up as a defence to an action on the judgment. (Dick v. Tolhausen, 4 H. & N. 695.) The principle already laid down that any matter which could have been set up as a defence on the merits in the original action cannot be pleaded to an action on the judgment, applies to actions on the judgments of foreign Courts. (Henderson v. Henderson, 6 Q. B. 288; De Cosse Bressac v. Rathbone, 6 H. & N. 301; 30 L. J. Ex. 238; Munroe v. Pilkington, 31 L. J. Q. B. 81, 89; Castrique v. Imrie, 29 L. J. C. P. 321; 8 C. B. N. S. 1, 405.) Neither will a defendant be permitted to defend on the ground that the foreign judgment was erroneous in point of law and on the merits; or that fresh evidence had been discovered since the judgment, showing it to be erroneous; or for a mistake in the law of the foreign state in which the judgment was given (Munroe v. Pilkington, 31 L. J. Q. B. 86, 89); or that evidence was admitted which would not be admissible by English law. (De Cosse Bressac v. Rathbone, supra.) A foreign judgment may, however, be impeached on any of the folwhich a lowing grounds, viz.: (1) that the Court had no jurisdiction in respect foreign of the matter of the suit or of the parties (Ferguson v. Mahon, 11 A. & judgment E. 179; and see Robertson v. Struth, 5 Q. B. 941); (2) for errors on the may be face of the judgment, and for this purpose the reasons assigned in the impeached. judgment form part of it (Reimers v. Druce, 26 L. J. Chan. 196; 23 Beav. 150); (3) for repudiating English law where it was necessary to decide the case (Reimers v. Druce, supra; Semson v. Fogo, 29 L. J. C. 657; Munroe v. Pilkington, 31 L. J. Q. B. 81); (4) that the judgment was contrary to natural justice (Buchanan v. Rucker, 1 Camp. 63); (5) that the judgment was not final and conclusive (Patrick v. Sheddon, 2 E. & B. 14; Frayes v. Worms, 10 C. B. N. S. 149; Plummer v. Woodburne, 4 B. & C. 625); (6) that the defendant was not summoned, and had no notice of the proceedings (Buchanan v. Rucker, supra; Reynolds v. Fenton, 3 C. B. 187). It was laid down in Schibby v. Westenholz, L. R. 6 Q. B. 155, that a judgment of a foreign Court obtained in default of appearance against a defendant, cannot be enforced in an English Court where the defendant, at the time the suit commenced, was not a subject of nor resident in the country in which the judgment was obtained, for there existed nothing imposing on the defendant any duty to obey the judgment. (7) That the judgment was obtained by fraud. (Ochsenbein v. Papelier, L. R. 8 Ch. 695.) Other grounds on which foreign judgments may be controverted will be found stated 2 Smith's L. Cas., 7th ed., 823-825. And see Story's Conflict of Laws, 7th ed., p. 732. defendant in the Court of Chancery, being a Court of the said On a Island duly holden at C., and having jurisdiction in that foreign judgment. behalf, the plaintiffs recovered against the defendant by the judgment of the said Court, and according to the laws of the said Island, the sum of £200, with interest thereon from the 3rd day of December, 1877, until payment, and the amount of taxed costs of the suit, which sums of money, interest, and costs the defendant was by the said Court adjudged and ordered to pay. 4. The said judgment is still in force and unsatisfied. The plaintiffs claim : Statement of Defence. 1. As to paragraph 3 of the statement of claim, the de- Defence. fendant denies that the said Court of Chancery was a Court duly holden and having jurisdiction as alleged. 2. As to paragraphs 3 and 4, the defendant says that the said action was commenced according to the laws then and still in force in the said Isle of Man, by process and summons, and that the defendant was not at the time of the commencement thereof or for many years previously, namely, for ten years or thereabouts, domiciled within the jurisdiction of the said Court, and the defendant was not at any time before the recovery of the said judgment served with any process or summons in the said action, nor did the defendant appear in the said action, nor had he before the recovery of the said judgment any notice or It has been recently held in Godard v. Gray, L. R. 6 Q. B. 139, that a defendant cannot set up as an excuse for not paying money awarded by a judgment of a foreign tribunal having jurisdiction over him and the cause, that the judgment proceeded on a mistake as to English law, and that it made no difference that the mistake appeared on the face of the proceedings. The fact that an appeal is pending against the judgment cannot be Appeal made the ground of a defence to an action thereon, though it can be pending made the ground for staying execution on the judgment in such action. no defence. (Munroe v. Pilkington, 31 L. J. Q. B. 81.). Formerly, if it was desired to have execution on a judgment obtained in England on property in Ireland or Scotland, or conversely, it could not be done without first bringing an action on the judgment in the country in which it was sought to have execution. Now, however, by 31 & 32 Vict. c. 54, the holder of a judgment in one country can have execution on it by registering it in the country in which he wishes to issue execution. On a foreign judgment. Defence. knowledge of any process or summons, or of any proceedings in the said action, or any opportunity of defending himself therein. 3. The defendant says that he was not in any way subject to the laws of the said island at any time during the said action, nor was he then nor is he under any obligation to submit to the jurisdiction of the said Court of Chancery of the said island. If he was or is under any obligation to submit to the jurisdiction of the said Court, which he denies, he repeats the allegation in the 2nd paragraph hereof contained, and says that the course of procedure which has been adopted is inconsistent with natural justice. 4. The defendant denies that the said sum of £200, or any part thereof, is due and owing from the defendant to the plaintiff, as alleged, or otherwise. Claim for rent. How relation of landlord and tenant created. When it must be Landlord and Tenant (a). Statement of Claim for Rent. 1. By an agreement in writing under the hands of the plaintiff and defendant, dated the of 1876, the (a) The relation of landlord and tenant is constituted either by deed, writing, or parol agreement, accompanied or followed in each case by delivery of possession. In two cases, viz., tenancy at will and tenancy by sufferance, it arises apart from any express agreement. Leases for a term not exceeding three years from the making thereof, whereupon the rent reserved during such term shall amount to two-thirds of the full improved value of the thing demised, may be either by agreement in writing simply or by word of mouth (29 Car. 2, c. 3, ss. 1 and 2). All leases for above that period are required by the statute just mentioned to be in writing, signed by the parties making the same, or their agents authorised by writing, and if they are not so made, they will only create tenancies at will. And now by the 8 & 9 Vict. c. 106, s. 3, it is provided that leases required by law (i. e., by the Statute of created by Frauds, 29 Car. 2, c. 3) to be in writing, shall be void at law, unless they are made by deed. It has, however, been held that an instrument purporting to be a lease for over three years was good in equity, as an agreement for a lease on which specific performance could be decreed. (Rollason v. Leon, 7 H. & N. 73.) Now that the distinctions between the doctrines of law and equity are abolished, and those of the former which were in conflict with the latter are no longer to have any effect in any Court, it follows that such instruments would not be treated as void in the Common Law Divisions. deed. plaintiff agreed to let and the defendant agreed to take the Claim for messuage or dwelling-house and shop, with the cottage in rent. Leases of incorporeal hereditaments, such as of tithes, or of the right to shoot over land for even the shortest period, require to be by deed. (Gardiner v. Williamson, 2 B. & Ad. 336; Bird v. Higginson, 6 A. & E. 824.) Where a lease is in two parts, one party executing each part, if there is a material variation between the two parts, it is void for want of mutuality. (Wynne's Case, L. R. 8 Ch. 1002.) The persons who are immediately entitled to bring actions and liable to be sued on the covenants in leases are the lessor and lessee and their assignees. covenants run At common law certain covenants "run" with the land or thing de- When mised, i. e., the burthen and benefit of the covenants pass to the assignees of the leases. These covenants are:-1st. Where the covenant refers to a thing in esse, parcel of the thing demised, as to keep a house with the on the demised premises in repair. The benefit of this covenant passes land. to the assignee of the lease, even though the word "assigns" be not used in the covenant. 2nd. If the covenant relates to something to be done on the land demised, as to build a wall thereon, it runs to the assignee, if the covenant has been made for the lessee and his assigns. Covenants of this kind did not, however, run with the reversion, i. e., pass to the assignee thereof, until the 32 H. 8, c. 34 provided that such assignees should be entitled to the same rights and subject to the same liabilities on covenants in the lease as their assignors. It has been held that this statute only applied to covenants running with the land. (See Spencer's case, 1 Smith's L. C. 7th ed., 60.) When Liabilities on execution of lease or agreement.]-The lessor binds him- Lessor self to give the party to whom he demises possession, and not a mere bound right to take possession from a wrongdoer by an action of ejectment, and to give the lessee binds himself to accept possession and pay the rent. (Stanley possession. v. Hayes, 3 Q. B. 105.) If a party agrees to take a house from a particu lar day, provided certain things are then done by the landlord, and the things are not done, he may decline to take possession. (Tidey v. Mollett, 33 L. J. C. P. 235.) A person who has contracted orally for the hire of realty, and who neglects or refuses to accept possession, cannot be sued on such agreement for not taking possession, nor on any oral promise to pay rent, nor for use and occupation. (Addison on Contracts, 7th ed. 555.) lessee is not bound to enter. Covenants by lessor - Quiet enjoyment.]— Apart from an express The cove covenant for quiet enjoyment, the use of the word "demise or nant for "let" in an indenture of lease imports such a covenant. (Hall v. City of quiet London Brewery, 31 L. J. Q. B. 257.) But if there be an express cove- enjoyment. nant either as to quiet possession or title, no implication arises from these words. (Line v. Stephenson, 5 Bing. N. C. 183; Adams v. Gibney, 6 Bing. 656.) The liability on implied covenants is confined to the lessor, and does not attach to his executors. (Adams v. Gibney, supra.) On a parol demise the law implies a promise of quiet enjoyment, but not for good title. (Bandy v. Cartwright, 8 Ex. 913.) There is no No imimplied warranty in a lease of a house or land, that it is reasonably fit plied warfor habitation or cultivation. (Sutton v. Temple, 12 M. & W. 52; Hart ranty of v. Windsor, ib. 68.) It is different where there is a contract for letting fitness for a house and furniture; and if they are unfit at the commencement of the habitation, term the tenant does not obtain that for which he contracted, and may &c. rescind the agreement. (Wilson v. Finch-Hatton, 46 L. J. 489.) What constitutes a breach of covenant or promise for quiet enjoyment.]-This being a covenant against disturbance by any person having Claim for rent. the rear thereof, in Bishop's-court, with the appurtenances thereto, situate and being No. -, Old Bailey, in the city of What is a lawful title, will not be broken by a tortious disturbance by a stranger. breach of Dudley v. Follcot, 3 T. R. 587. A covenant for quiet enjoyment against covenant A.," and all persons by his means, title, or procurement," is violated by for quiet an entry by A.'s wife, in whose name A. purchased jointly with his own. enjoyment. (Butler v. Swinerton, Palm. 339.) An entry on the demised premises Damages recovered by lessee. On a covenant to pay rent lessee remains and distress for land-tax due from the lessor before the demise is not a This action may be brought on the covenant for quiet enjoyment implied from the word demise. (Com. Dig. Cov. (A. 4)). And an action for breach of contract for quiet enjoyment lies on the promise of quiet enjoyment implied from a parol demise. (Bandy v. Cartwright, 22 L. J. Ex. 285; Hall v. City of London Brewery Co., 31 L. J. Q. B. 257.) Measure of damages.]-Where the tenant was sued for trespass by another person claiming under the lessor, and gave notice of the action to him (lessor), but the latter took no notice thereof, and the tenant then defended the action, and a verdict was recovered against him, it was held in an action by the tenant against the lessor, that the plaintiff was entitled to recover the amount of the verdict and costs, his own costs in defending the action, compensation for the loss of the land, and also the value of a conservatory he had erected. (Rolph v. Crouch, L. R. 3 Ex. 44. And see Moors-le-Blanch v. Wilson, L. R. 8 C. P. 227.) Covenants or promises of tenant-1st, rent.]—The lessor can recover rent accrued due under a demise whether by deed or simple contract, and whether there has been an actual occupation under the demise or not. (1 Wms. Saund. 202, a, n. 1.) When the demise is by deed, and there is a covenant for the payment of rent, though the lessee may have assigned the lease, and the landlord have accepted the assignee, the lessee remains liable (1 Wms. Saund. 240; 2 Wms. Saund. 302, n. (5) ), and usually protects himself in such circumstances by a covenant by the assignee to indemnify him. There liable even is, however, an implied promise to indemnify. (See " Money.") The mere reservation of rent in a lease by deed, in the absence of a covenant for payment of it, would not render the lessee liable after assignment. (Wadham v. Marlowe, 8 East, 314.) after assignment. It is no defence to an action for rent that the defendant was induced to take the lease by the plaintiff's fraud. (Feret v. Hill, 23 L. J. C. P. 185.) An informality in the execution of a lease by the lessor will not affect the lessee's covenants, whether to pay rent or otherwise. (Toler v. Slater, L. R. 3 Q. B. 42.) |