CRESSWELL, J.-The plaintiff has declared upon an agreement by the defendant to pay him a sum of money for a certain consideration, and also to give him a Judge's order in order to secure the payment of the money so agreed to be paid. The Court of Exchequer have set the order aside, but in doing so they did not decide that there was no such agreement. Whether there were such an agreement or not is a question that remains to be tried. The case of Doe d. Carthew v. Brenton (a), does not at all apply. There is no attempt here to defeat an arrangement to which the plaintiff has assented in another Court. ERLE, J., concurred. Rule discharged; the defendant to have fourteen (a) 6 Bing. 469. 1845. WADE v. SIMEON. DOE dem. WYATT v. BYRON. THIS was an ejectment for premises at Paddington, which A sub-lessee had been demised by Wyatt to one Steel, who afterwards being in difficulties, sub-let the property to the defendant and other persons, as trustees for his creditors, for the whole of the original term, except the last two days. The lease is a tenant of premises within the meaning 4 Geo. 2, of the stat. c. 28, s. 4, and is therefore payment into rent in arrear and costs. entitled to a to Steel contained various covenants on his part to build, stay of prorepair, pay rent, &c., but a power of re-entry was reserved ceedings upon to Wyatt only in case of the non-payment of rent. The Court of the covenants were not kept, and the rent being in arrear, this action was commenced, upon which the defendant, before trial, took out a summons before Maule, J., at Chambers, to stay all proceedings, upon payment of the rent and costs, pursuant to stat. 4 Geo. 2, c. 28, s. 4. It was objected that a sub-lessee did not come within the provision of that 1845. Doe dem. v. BYRON. section of the act, but the learned Judge made the order for a stay of proceedings upon the terms above stated. A rule nisi was subsequently obtained to rescind this order. Talfourd, Serjt., (with whom was J. Addison), shewed cause. In the first place, the Court has power, at common law, to give relief to the tenant in possession, by staying proceedings for a forfeiture upon payment of the rent due and costs. The Courts exercised a discretion in such cases before the stat. 4 Geo. 2, c. 28, was passed, and the statute does not interfere with that discretion. In Downes v. Turner (a), the Court stayed all proceedings upon the tenant's bringing all the rent into Court, and accepting a new lease. Smith v. Parks (b) was decided upon the same principle. The existence of such a practice before the statute is also recognised by Lord Ellenborough, C. J., in Roe d. West v. Davis (c), where he observes, that the statute only meant to legalise the practice to a certain extent, viz., upon the application of the tenant before trial, as in the present instance. In that case, therefore, the Court refused to interfere when the application was made after a trial had taken place, and the authority of this decision was acknowledged in the subsequent case of Doe d. Harris v. Masters (d). It is submitted, however, secondly, that the defendant clearly comes within the scope of the fourth section of the statute (e). There is no reason why the (a) 2 Salk. 597. (b) 10 Mod. 383. (c) 7 East, 366. (d) 2 B. & C. 490. (e) Section 4. "That if the tenant or tenants, his, her, or their assignee or assignees, do or shall at any time before the trial in such ejectment, pay or tender to the lessor or landlord, his executors or administrators, or his, her, or their attorney in that cause, or pay into the Court where the same cause is depending, all the rent and arrears, together with the costs, then and in such case, all further proceedings on the said ejectment shall cease and be discontinued: and if such lessee or lessees, his, her, or their executors, administrators or assigns, shall upon such bill filed as aforesaid," (referring to the preceding section) "be relieved relief should not be co-extensive with the penalty imposed, and the parties who will really suffer by the forfeiture of the lease are those whom the defendant represents. The second section of the act confers upon the landlord the power of re-entry without making any formal demand, and the fourth section bestows a corresponding boon upon the tenant or his assignee. The question then really comes to this, is the defendant an assignee of the term within the meaning of the latter clause? It is submitted that he does come within the equity of the statute. In Doe dem. Whitfield v. Roe (a), it was held that the mortgagee of a lease has the same title to relief against an ejectment for nonpayment of rent, as the lessee. Here the defendant has the whole interest in the Term, except two days. Byles, Serjt., in support of the rule. The order of the learned Judge ought to be set aside. There is no doubt that the defendant might formerly have obtained relief in equity, but the effect of the stat. 4 Geo. 2, c. 28, is to restrain relief. Very great injustice would be done if the language of the fourth section were not to receive a construction strictly in accordance with the words of it. The defendant, being only a sub-lessee, is not liable to the covenants of the lease, and the lessor of the plaintiff is, therefore, without any remedy against him. The defendant, however, claims to be relieved from the forfeiture incurred by the lessee's breach of covenant. There is no precedent for such an application, except on the part of the person who is bound by the covenants in the lease. The third section recognises a right to equitable relief not only in the lessee or assignee, but also in the sub-lessee, because it speaks of "persons claiming any right, title, or interest, in law or equity, of, in, or to the said lease." That clause, and the second, were in equity, he, she, and they shall have, hold, and enjoy the demised lands, according to the lease thereof made, without any new VOL. III. D lease to be thereof made to him, (a) 3 Taunt. 402. D. & L 1845. Doe dem. v. BYRON. 1845. Doe dem. บ. BYRON. intended for the protection of the landlord, but then comes the fourth section, and introduces new provisions, not in favour of the landlord, but of the tenant. Nothing, however, is said in this clause of "other persons" claiming any interest in the lease; the words are simply "tenant" and "assignee." The word "tenant" is not used in the section to signify per se "the tenant in possession," because the tenant in possession may be a tenant at sufferance, or a trespasser. It is submitted that the word "tenant" means "lessee," and the words "such lessee or lessees," which occur in a subsequent part of the clause, materially The authorities cited strengthen that view of the case. on the other side do not support the position for which the defendant contends, and the more ancient of them shew that the Court would only interpose upon the terms that the party applying for a stay of proceedings should accept a new lease, and thus be bound by the covenants contained in it, to which a sub-lessee would not be liable. The TINDAL, C. J.-We do not mean to decide this case on the particular circumstances of difficulty in which the landlord is placed by the peculiar construction of the lease; because we should arrive at the same determination if the original lease had contained a condition for re-entry in the event of non-performance of any one of the covenants. The particular circumstance of difficulty imported into this case is, the neglect of the landlord to insert in the lease a provision against sub-letting, without his consent. question between the parties arises upon the construction of this act of Parliament, and turns chiefly on the words "tenant or tenants, his, her, or their assignee or assignees," contained in the fourth section. I think, however, that we ought not merely to look at the fourth section, but to the other clauses of the act, and see whether any consistent meaning can be given to these words. The word "tenant" is clearly large enough in itself to comprehend not only the original lessee or assignee of a lease, but also the person coming in under the lessee. The word "assignee" will have its full force if you give to the word "tenant" the meaning of "lessee." Now, the second section of the statute contains a provision in favour of landlords, the words of which are these: "in case the lessee or lessees, his, her, or their assignee or assignees, or other person or persons claiming or deriving under the said leases, shall permit and suffer judgment to be had and recovered" in ejectment, &c., they shall be barred from relief at law or in equity. Clearly, therefore, the persons in the contemplation of the Legislature who are thus debarred from any remedy are persons who are in possession of the land either as lessees or assignees, or such as claim under them. Upon looking at the fourth section, we find a benefit conferred upon the tenant, and when that section refers to the terms upon which proceedings may be stayed, we should expect to find that the words used in that section were coextensive with those employed in the former clause. The fourth section says, "that if the tenant or tenants, his, her, or their assignee or assignees, do or shall at any time before the trial in such ejectment, pay or tender to the lessor or landlord, his executors or administrators, or his, her, or their attorney in that cause, or pay into the Court where the same cause is depending, all the rent and arrears, together with the costs; then and in such case, all further proceedings on the said ejectment shall cease and be discontinued." It seems to me that it would be a singular thing to give a stricter and closer meaning to these words, when a remedy is pointed out by requiring the payment of the money into Court, than is attached to them in the second section of the act, which confers and limits the rights of the parties. It is to be observed, too, that the fourth section provides that the proceedings shall be stayed upon payment of rent and all arrears of rent, without reference to the party from whom the rent may be due. I think, therefore, that the meaning of this section, which is of a remedial character, is not necessarily narrowed within the limits contended for, 1845. Doe dem. v. BYRON. |