ARGUED AND DETERMINED IN THE COURT OF COMMON PLEAS, IN Easter Term, IN THE FIFTH YEAR OF THE REIGN OF VICTORIA. The judges who usually sat in banc during this term were, TINDAL, C. J. ERSKINE, J PRICE v. BIRCH. By an indenture between the plaintiff and defendant, it was covenanted that the defenda should obtain a license from the lord of the manor, and should grant a lease to the plainti and that such lease should contain a covenant that the defendant would, during the ter repair the premises demised, and that till such license was obtained and such lease granted, the plaintiff should hold the premises as tenant from year to year subject to the terms and conditions herein before specified. In an action of covenant upon the indenture, the plaintiff, in his declaration, set out the covenant that the defendant should obtain the license and grant the lease, and the proposed covenant to repair, and then alleged that the parties further covenanted that till the license should be obtained and the lease granted, the plaintiff should be considered as tenant from year to year, &c., and that whilst the plaintiff should be possessed of the premises as tenant from year to year, under the provisions of the indenture, the defendant should repair the said premises: Held, no variance. COVENANT. The declaration stated that, by a certain indenture, bearing date on, &c., made between the defendant of the one part and the plaintiff *of the other part, &c., the defendant did covenant, &c. that he, the *2] defendant, would (inter alia) procure from the lord or lady of the manor of Tettenhall Regis, a license to demise to the plaintiff a certain messuage, &c. for the term of ten years, and would make a good and sufficient lease unto the plaintiff, of the said messuage, &c. for ten years; and it was thereby covenanted that the intended lease should contain (inter alia) a covenant on the part of the defendant that the defendant, his heirs, &c., during the term so to be granted, should, at his or their own expense, repair, uphold, support and keep in repair the external parts of the outer doors and window frames, and the tiles, slates, &c., and all other the external parts of the said messuage, in good and tenantable order and condition, and would paint the outside wood, stone and iron work once in every third year of the said term; and each of the parties did further covenant that in the mean time and until the said license should be obtained and the said lease granted, the plaintiff should be considered as tenant of the said premises from year to year, at the rent, and subject to the terms and conditions therembeto specified; and that, whilst the plaintiff, his executors, &c., should be possessed of the premises as tenant thereof from year to year under the provisions of the indenture, the defendant, his heirs, &c., would, at his and their own expense, repair, uphold, support and keep in repair the external parts of the outer doors and window-frames, and the tiles, slates, &c., and all other the external parts of the said messuage, &c., in good and tenantlike order and condition, and would paint the outside wood, stone and iron work of the premises once in every third year; (prout patet.) Averment: that, by virtue of the indenture,-the license not being obtained and the lease not being granted,-the plaintiff' entered and became possessed as tenant from year to year, at the rent and subject to the *terms and conditions aforesaid, and continued so possessed, &c. and had performed all covenants, &c. Breach: that the defendant did not repair, &c. Plea: non est factum. [*3 At the trial before PATTESON, J., at the last Staffordshire assizes, the indenture in question was given in evidence. It contained covenants, as stated in the declaration, that the defendant would obtain the license and make the lease, and that such lease should contain (inter alia) the covenant by the defendant to repair, and concluded as follows: "And each of the parties hereto doth hereby further covenant with the other of them, that in the mean time and until the said license shall be obtained and the said lease granted, the said Richard Hope Price, (the plaintiff,) his executors and administrators, shall be, and be considered as, tenant of the said premises from year to year, at the rent, and subject to the terms and conditions, hereinbefore specified. In witness," &c. The counsel for the defendant applied for a nonsuit upon the ground of a variance between the declaration and the deed produced, no express covenant being contained in the latter that the defendant should execute the repairs during the tenancy from year to year, as alleged in the decla ration. The learned judge thought there was no variance, and refused to nonsuit the plaintiff; but gave the defendant leave to move to enter a nonsuit in case the court should think that there was a variance, and should refuse to amend, which, by agreement, they were to have the power to do plaintiff having obtained a verdict. The Channel, Serjt., now moved to enter a nonsuit, pursuant to the leave reserved; and renewed the objection taken at the trial. It may be admit ted that all the covenants proposed to be inserted in the intended [* 4 · lease must, during the tenancy from year to year, be considered as amounting to agreements; but the objection is, that the declaration alleges a covenant to be contained in the deed, which, in fact, is not to be found there. [TINDALL, C. J. It would appear that the maxim-verba relata inesse videntur(a)-would apply in this case.] There is no doubt that a covenant may be stated according to its legal effect;(b) but here it is professed to be set out in express words, and also according to its legal effect, and it is not competent to a party to take both courses. The indenture is set out in terms, and then the plaintiff has superadded certain terms which are not in the deed. (a) For the application of this maxim, see Co. Litt. 9 a, 1 Tho. Co. Litt. 509, 10 Vin. Abr. 235, tit. Estate, (K. 2,) pl. 5. (b) Vide Com. Dig. tit. Pleader (C. 37;) 5 Mann. & Ryl. 451; ante, vol. i. p. 281 (39 E. C. L. R.;) post, 9, n. (b.) TINDAL, C. J. The deed contains a covenant that until a lease be granted, the plaintiff shall hold the premises on the same terms as thereinbefore specified, that is, on the terms stated in the proposed lease; the plaintiff then sets out those terms. I think this is clearly no variance. The other judges concurred. *5] *GOLDSMITH v. MARTIN. Rule refused. A. entered his horse for a race and paid the subscription money; the horse won, but it turned out that by the rules of the race he was not entitled to run. Notice of the objection had been given to A. before the race: Held, that he was not entitled to recover his subscription money. ASSUMPSIT, for money had and received, and upon an account stated. Plea: non assumpsit. The particulars of demand were as follows: £14 0 "To the account of the hack stakes at the Cambridge Coronation Races, after deducting the stake of second horse "To the account of the hurdle race sweep-stakes at the Cambridge Coronation Races, deducting the stake of the second horse 30 0 "To cash received by defendant of plaintiff-entrance money to said races, and fees obtained as clerk of the course 3 10" At the trial before TINDAL, C. J., at the last Cambridgeshire assizes, it was proved that the defendant was clerk of the course and stakeholder at the Cambridge "Coronation Races," which took place on the 30th June, 1841. There were two sweepstakes, in respect of which the action was brought, one of which was called the hack stakes, and the other the hurdle stakes. By the printed rules of the races, thorough-bred horses in the hack stakes were to carry seven pounds extra, and in the hurdle stakes they were not to run at all. The plaintiff entered his horse, Cavallo, as "not a thorough-bred" horse, for both stakes, and paid the defendant as clerk of the course, 11. entrance money for the hack stakes, 21. for the hurdle stakes, and 10s. fee. An objection to Cavallo, as a thorough-bred horse, was delivered to the plaintiff before the race. The horse, however, ran, and won both races. The question, had been referred to the stewards; who decided that Cavallo was a thorough-bred horse, *and, therefore, that the plaintiff was not entitled to either of the stakes. On behalf of the plaintiff it was contended, that at any rate he was entitled to recover the 37. 10s. entrance money; but the Lord Chief Justice, on the authority of Marryat v. Broderick, Murph. & Hurlst. 96, S. C. 2 M. & W. 369, directed a nonsuit, reserving leave to the plaintiff to move to enter a verdict for that amount. Channell, Serjt., now moved accordingly, and contended that, either there was no satisfactory proof of the objection having been properly made before the race, or the entrance money had been paid without consideration; and that, either way, the plaintiff was entitled to recover the 3l. 10s. It TINDAL, C. J. This is not like the case of an insurance; where a party paying the premium may recover it back before the risk has commenced.(7) It is more like the case of money paid by a party in his own wrong. is clear from the evidence in the cause, that the entrance money was to form part of the stakes. (a) Vide dict. per Lord Mansfield, C. J., in Tyrie v. Fletcher, Cowp. 668; Penson v. Lee, ? B. & P. 330. B |
