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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.
Landlord and Tenant (a).
Claim for rent.
Statement of Claim for Rent. 1. By an agreement in writing under the hands of the plaintiff and defendant, dated the — of — 1876, the
How rela- (a) The relation of landlord and tenant is constituted either by deed, tion of writing, or parol agreement, accompanied or followed in each case by landlord delivery of possession. In two cases, viz., tenancy at will and tenancy and tenant by sufferance, it arises apart from any express agreement. created. 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 When it only create tenancies at will. And now by the 8 & 9 Vict. c. 106, s. 3, must be 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 lan, unless they deed. are made by deed. It has, however, been held that an instrument pur
porting 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.
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. Iligginson, 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.
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 covenants assignees of the leases. These covenants are :- 1st. Where the covenant "run" 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.)
Liabilities on rxccution 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 When things are not done, he may decline to take possession. (Tidey v. Mollett, lessee is
not bound 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 to enter. 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.)
Covenants by lessor - Quiet enjoyment.}- Apart from an express The covecovenant 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 corenant 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. Srinerton, Palm. 339.) An entry on the demised premises
and distress for land-tax due from the lessor before the demise is not a breach of the covenant, for that is not by a person claiming through but against him. (Stanley v. Hayes, 3 Q. B. 105.) But semble if the tenant pays out the distress he may recover the amount against his lessor as money which the lessor was legally compellable to pay, and the tenant has been compelled to pay. An entry by a person claiming through the lessor is not the less a breach because the lessee has instigated it. (Young v. Raincock, 7 C. B. 310). Merely forbidding the tenant's subtenant to pay him rent is not a breach. (Witchcot v. Linesey, 1 Browl. 81.) Restraining the tenant by means of legal proceedings not from the possession but from enjoying the premises in a particular manner, as using them as a beershop, is not a breach. (Dennett v. Atherton, L. R. 7 Q. B. 316, Ex. Ch.) A refusal by a lessor to give or to allow the plaintiff to take possession, cannot be made the ground of an action for breach of covenant or promise for quiet enjoyment. (Harkes v. Orton, 5 Ad. & E. 367.)
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. Cartreright, 22 L. J. Ex. 285; Hall v. City of London Brewery Co., 31 L. J. Q. B.
257.) Damages Measure of damages.]-Where the tenant was sued for trespass by recovered another person claiming under the lessor, and gave notice of the action by lessee. 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-18t, 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.) On a cove
When the demise is by deed, and there is a covenant for the payment nant to
of rent, though the lessee may have assigned the lease, and the landlord pay rent
have accepted the assignee, the lessee remains liable (1 Wms. Saund. lessee 240 ; 2 Wms. Saund. 302, n. (5)), and usually protects himself in such remains circumstances by a covenant by the assignee to indemnify him. There liable even is, however, an implied promise to indemnify. (See “ Money.") The mere after as
reservation of rent in a lease by deed, in the absence of a covenant for signment.
payment of it, would not render the lessee liable after assignment. (Wadham v. Marlowe, 8 East, 314.)
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.)
London, for the term of three years from the date thereof, at Claim for the yearly rent of £105, the first year's rent to be paid in ad- rent.
Liability for repairs.]-It is usual in leases of houses to introduce a Liability covenant to repair during the term, and to leave in a proper state of of tenant reparation, and also a covenant to repair after notice. These covenants for repairs. are usually distinct and independent, but they may be so framed as only to form one covenant, so that the one is engrafted on the other. In the former case a tenant is liable for non-repair, though no notice to repair has been given ; but in the latter case no liability arises until after notice to repair has been given. (See Woodfall's Landlord and Tenant, p. 486, 9th ed., for the tests for determining when the covenants are separate and when dependent.) A breach of covenant to put in repair is not a continuing breach. (Coward v. Gregory, L. R. 2 C. P. 153.)
No contract to repair is implied from the fact of the relation of landlord and tenant being created. (Standen v. Christmas, 10 Q. B. 135; and see Granger v. Collins, 6 M. & W. 458.)
Where the tenant covenanted to keep the demised premises in repair, the same being first put into repair by the landlord, the repairing by the landlord is a condition precedent to the tenant's obligation on the covenant. (Neale v. Ratcliffe, 20 L. J. Q. B. 130 ; Corard v. Gregory, supra.)
Measure of damage.]- In actions for breaches of covenant or promise Measure of to repair, the measure of damages during the continuance of the lease is damages the diminution of the value of the reversion. (Turner v. Lamb, 14 in actions M. & W. 412; Doe v. Ronlands, 9 C. & P. 734 ; Smith v. Peat, 23 L. J. for nonEx. 84 ; Mills v. East London Union, L. R. 8 C. P. 79; Williams v. repair. Williams, L. R. 9 C. P. 659.) Where the landlord's interest in the lease is determined by forfeiture or otherwise, the preceding test would be inapplicable, and the measure of damages would be the sum it would cost to put the premises in the state of repair agreed upon. (Daries v. Underwood, 27 L. J. Ex. 113; 2 H. & M. 570.) The measure of damage also State of depends on the state of the premises on the creation of the tenancy, the premises tenant's liability being measured by reference to the condition of the at compremises at that time. (Payne v. Taine, 16 M. & W. 541 ; Stanley v. mencement Towgood, 3 Bing. N. C. 4 ; Burdett v. Withers, 7 A. & E. 136.) The of tenancy fact that the dilapidation prevented the landlord from letting, may to be consemble be considered where special damages are claimed. (Woods v. sidered. Page, 1 Bing. N. C. 467.) If a second action be brought on a covenant to keep in repair, the verdict in the former action may be given in evidence in mitigation of damages. (Coward v. Gregory, supra.)
Where the tenant has sublet, and the underlessee has neglected to Tenant repair, the tenant in an action against him may claim as special damage, may rethe forfeiture of his lease on account of the breach of covenant. (Clow cover from v. Brogden, 2 M. & G. 39), or the loss sustained by him through being sub-tenant sued for breach of the covenant to repair. (Walker v. Hatton, 10 M. & W. for forfei249.)
ture of In cases where the lessor covenants to repair, the tenant, in an action lease for for non-repair, may allege as special damage that he was unable to carry non-repair. on his trade in the premises, and was obliged to remove. (Green v. Eales, 2 Q. B. 225.)
Covenant to insure.] The covenant to keep buildings insured against Covenant fire runs with the land, as the 14 Geo. 3, c. 78, s. 83, enables the land- to insure lord to have the insurance money laid out in reinstating the premises, runs with so that the covenant with the aid of the statute amounts to a cove- land. nant to repair. (Vernon v. Smith, 5 B. & A. 1.) The operation of this section is not confined to the metropolitan district. (Ex parte Gorley, 34 L. J. Bkcy. 1.) A covenant " to insure at all times previously to the expiration of the
Claim for rent.
vance, and the rent during the residue of the said term to be paid quarterly, the first of such quarterly payments to be made
term," is satisfied by an insurance within a reasonably short time after the execution of the lease.
A covenant to insure in the name of A. is not satisfied by an insurance in the joint names of A. and the lessee. (Pennial v. Harborne, 11 Q. B.
368. But see Havens v, Middleton, 22 L. J. Ch. 746.) Covenant Corenant to cultirate in a husbandlike manner, fc.]--Actions on coveto cultivate nants of this kind are not very common, particularly during recent years. in hus- · The reader is referred to Woodfall's Landlord and Tenant, 11th ed., for bandlike the law on the subject. manner. If the plaintiff means to rely on bad cultivation by the defendant, he
should state that distinctly as his ground of complaint, as under a claim for non-cultivation, he would not be allowed to give evidence of bad cultivation merely, though it is pr able that the plaintiff would in such a case obtain leave to amend on the trial, unless where on the amendment he would only be entitled to merely nominal damages. (Times Insurance Co. v. IIawke, 28 L. J. Ex. 317.) Where covenants of this kind are controlled or modified by particular customs as to the mode of cultivation or as to the rights of the parties on the termination of the tenancy, the plaintiff should mention them in the statement of claim. If, however, the plaintiff ignores the custom, but the defendant
relies on it, it is for the latter to set it out in his statement of defence. Covenant Covenant not to carry on a particular trade on the premises.]-A not to covenant not to do anything on the demised premises which may be a carry on
nuisance to the occupiers of the adjoining premises, was held not to be 1 articular broken by opening a national school thereon. (Harrison v. Good, L. R. trade. 11 Eq. 338.) A covenant not to use the premises as a beerhouse, inn, or
public-house for the sale of spirituous liquors is not broken by the sale of beer by retail under a license preventing its being drunk on the premises. (London f North-Western Rail. Co. v. Garnett, L. R. 9 Eq. 26.) Nor is à covenant not to use a building as a public-house for the sale of wine, beer, malt liquors, or spirits broken by such sale under a similar license, (Pearse v. Coates, L. R. 2 Eq. 689.) A covenant that the trade or calling of a hotel or tavern-keeper, publican, beershop keeper, or seller by retail of wine, beer, spirits, or spirituous liquors should not be carried on on the premises, was held, per James, V.-C., now Lord Justice, not broken by the sale of wine in bottles by a grocer in the ordinary course of his trade, (Jones v. Bone, L. R. 9 Eq. 674. But see Feilden v. Slater, L. R. 7 Eq. 523, in which a decision apparently inconsistent with that in Jones .
Bone is given, and which must be considered as overruled by it.) Covenant Covenant not to assign.]—A sub-demise is not a breach of this covenot to nant. See 1 Sm. L. Č., 7th ed., Spencer's case. It would be different if assign. the covenant were not to let, or assign over” the demised premises,
any part thereof.” (Gregson v. Ilarrison, 2 T. R. 425.) Where the covenant contained words against " demising," leasing,” or “ aliening," the premises, or any part thereof, for the term or any part thereof, it was held a breach to give a partner of the tenant the exclusive possession of part of the house. (Dingley v. Sales, 1 M. & S. 297.) Taking a lodger is not a breach of a covenant not to under-let the house, unless there be a distinct agreement for the exclusive occupation of particular rooms. (Greenslade v. Tapscott, 1 C. M. & R. 59.) An assignment by one joint assignee of a lease to the other is a breach of the covenant not to assign. (Varley v.
Coppard, L. R. 7 C. P. 505.) Where as- A covenant not to assign without the consent of the lessor, such consent signment not to be arbitrarily withheld, does not entail a forfeiture, or enable the subject to lessor to sue when the tenant assigns after the lessor has arbitrarily consent. refused his consent. The refusal must be unfair and unreasonable to