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CONSULTATIVE COMMITTEE

THE Right HONOURABLE THE EARL OF HALSBURY, LATELY LORD HIGH CHANCELLOR OF GREAT BRITAIN

THE RIGHT HONOURABLE LORD ALVERSTONE,

LORD CHIEF JUSTICE OF ENGLAND

The Right HONOURABLE SIR R. B. FINLAY, G.C.M.G., K.C.,

LATELY ATTORNEY-GENERAL

EDITOR

Max. ROBERTSON, BARRISTER-AT-LAW

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WILLIAM GREEN & SONS, EDINBURGH
STEVENS & SONS, LIMITED, LONDON

AGENTS FOR THE UNITED STATES OF AMERICA
THE BOSTON BOOK COMPANY

AGENTS FOR CANADA
THE CANADA LAW BOOK COMPANY

1913

Printed by WILLIAM GREEN & Sons, Edinburgh

March 1913

16030

CASES ARGUED and DETERMINED in the COURT

of COMMON PLEAS. By JAMES MANNING, Serjeant at Law, and T. C. GRANGER, of the Inner Temple, Esquire, Barrister at Law. Vol. IV. From Easter Term, 1842, to Michaelmas Term, 1842, both inclusive. London, 1844. .

[1] CASES 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., Coltman J., Erskine J., Cresswell J.

PRICE v. BIRCH. April 18, 1842.

[S. C. 1 D. N. S. 720; 11 L. J. C. P. 193.] By an indenture between the plaintiff and defendant, it was covenanted that the defendant should obtain a licence from the lord of the manor, and should grant a lease to the plaintiff, and that such lease should contain a covenant that the defendant would, during the term, repair the premises demised, and that till such licence was obtained and such lease granted, the plaintiff should hold the premises as tenant from year to year, subject to the terms and conditions thereinbefore specified.--In an action of covenant upon the indenture, the plaintiff, in his declaration, set out the covenant that the defendant should obtain the licence and grant the lease, and the proposed covenant to repair, and then alleged that the parties further covenanted that till the licence 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 [2] of the other part, &c., the defendant did covenant, &c. that he, the defendant, would inter alia) procure from the lord or lady of the manor of Tettenhall Regis, a licence 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 licence 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 thereinbefore specified ; and that, whilst the plaintiff, his executors, &c., should be possessed of the

C. P. XII.-1

premises as tenånt 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 tenant-like 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 licence 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 [3] 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.

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 licence 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 said parties hereto doth hereby further covenant with the other of them, that in the mean time and until the said licence 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 declaration.

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. The plaintiff having obtained a verdict,

Channell Serjt. now moved to enter a nonsuit, pursuant to the leave reserved ; and renewed the objection taken at the trial. It may be admitted that all the [4] covenants proposed to be inserted in the intended 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. [Tindal 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 (6); 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.

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.
Rule refused.

[5] GOLDSMITH v. MARTIN. April 19, 1842.

[S. C. 4 Scott, N. R. 620; 11 L. J. C. P. 201.] 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

(a) For the application of this maxim, see Co. Litt. 9 a., 1 Tho. Co. Litt. 500, 10 Vin. Abr. 235, tit. Estate (K. 2), pl. 5.

(6) Vide Com. Dig. tit. Pleader (C. 37); 5 Mann. & Ryl. 451; ante, vol. i. p. 281; post, 9, n. (6).

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