you that they cannot part with or give possession without my consent; and, as to his removing before quarter-day to avoid rent, if I thought he would do so, I would put in Chancery and get an injunction against such proceedings. If, however, I understand your letter that you will pay the rent and insurance to Lady-Day next from Michaelmas, that is all I can ask you: but be pleased to observe the insurance must be the amount agreed, 167. The insurance afterwards can be regulated according to agreement, that is, if you would like to continue as tenants, notice to that effect being given January 9th next ensuing. "S. BARNEWell." *By an assignment dated the 5th of November, 1853, Fletcher's *546] executors assigned to the defendants all the plant, machinery, &c., comprised in the before-mentioned assignment, dated the 1st of June, 1851, with the exception of the furniture and household linen. On the 9th of January, 1854, the defendants gave Barnewell notice of their intention to quit the premises at Lady-Day, 1854. The following correspondence passed between Barnewell and the defendants: "Messrs. Le Gros & Co. "Coventry, January 10, 1854. "Gentlemen,-I have received your notice: and, as you are not likely to want the premises, I should be glad if you would allow me a board To let' to be hung on the chimney-shaft. It may perhaps get me a tenant by Lady-Day; and I hope it will, as I do not like empty houses. I shall be glad also to receive your check for the quarter's rent and insurance, as agreed, Say, half-year's rent Half of insurance, as agreed to Lady-Day, 1854 41 8 9 6 0 0 £47 8 9 "S. BARNEWell." "Coventry, February 3d, 1854. "Gentlemen,-I enclose receipt for rent in part due St. Thomas last; and shall be obliged by your interest in letting the factory. "S. BARNEWELL." "Coventry, March 2d, 1854. "Gentlemen,-As I have not taken any steps at present towards letting the premises you now hold, I shall be glad to hear from you as early as convenient *whether you accept the last terms offered you, or whether it is your intention to leave on the 25th instant. "S. BARNEWell." *547] Barnewell also stated, that, between the 2d and 21st of March, 1854, he verbally agreed to let to defendants the said premises for another year; and the defendants continued tenants to Barnewell for such year, and thenceforward, and paid rent to Barnewell up to the time of the trial. The following correspondence also took place between Barnewell and the defendants: "Coventry, March 21, 1854. "Dear Sirs,-The amount due to me, according to agreement, this 25th of March, is 577. 88. 9d., which includes the 167. agreed to be paid for insurance to the above. From the 25th March, I will insure for 20007. on the buildings, &c., instead of 8000l., as formerly, you paying the amount I pay to the office, above the 1507. for rent of factory: and, if you will insure your stock in the same office, the Imperial, I shall be glad. I am interested in its welfare; and I believe you cannot find one more highly respectable. S. BARNEWELL." "London, 22d March, 1854. "Dear Sir, We have yours of yesterday's date. We are very willing to favour the Imperial, if there is any gain in it: but, as it is agreed we should effect the insurance for 2000l. (see your letter to us, 8th February last) we shall to-morrow ascertain what the Imperial will charge, and what the Lancashire (in which we have some interest) will charge; and, as they are both undeniably good and safe, the cheapest. shall have it. "LE GROS, THOMPSON & BIRD. "Coventry, March 31st, 1854. "Gentlemen,-Your check 401. 138. 9d. is at hand, which will leavea balance on your agreement of *8l. 178. 6d. As follows is a copy of my memorandum taken in your own warehouse :"Half-year's rent to Lady-day, 1854 "Insurance to that time. "Cash received "Balance [*548 75 0 0 16 0 0 91 0 Q 80 13 9 82 17 6 £8 2 6 "Dear Sirs,-My rent-book is always at my residence at Camden; and I have written to you from my warehouse. This will account for the apparent discrepancies. The memorandum made in my books at your own warehouse was as follows:-Messrs. Le Gros will pay the rent Baylis is paying, to Lady-Day, and 167. insurance; and to inform me in January about its continuance.' A second memorandum,Messrs. Le Gros & Co. will continue on the premises till Lady-Day, 1857, at 150l., and insurance for 20001.' Is the above right or not? If you imagine for one moment that I should allow you to occupy my premises without insuring, you are mistaken. No reasonable man could expect it. The premises are insured to Michaelmas at the rate of 157. 158. per annum, which sum must be paid by you. As to Baylis's correspondence, if you refer again, you will find the rent was to be 150l., the insurance 157. 158. for 30007., as stated by Mr. Baylis, but which afterwards turned out 221. 48. 9d. This was explained to you before, and ought not to require it again. I shall be glad to receive a check for the amount of rent and insurance due Midsummer last. VOL. IV.-22 "S. BARNEWELL." *Mr. Pearce was also called on behalf of the defendants at the *549] trial, who stated that he acted as solicitor for Fletcher and his executors, and in particular for the executors in negotiating for the before-mentioned assignment of the plant, &c., by Fletcher's executors to the defendants, dated the 5th of November, 1853: and he also stated that he held, as such solicitor, the original lease before mentioned, but that no act was ever done to take possession of the premises, but that it was purposely avoided, and that the defendants declined to take the lease, and that there was never any arrangement between the defendants and Fletcher's executors about the premises themselves. On the 11th of December, 1854, the plaintiff became and was duly adjudged to be a bankrupt. On the 21st of December, 1854, the plaintiff took out letters of administration to the estate of his mother; and, on the 24th of February, 1855, he obtained probate of his father's will. The court were to draw inferences as a jury. The question for the opinion of the court, is, whether, under the circumstances of the case, the plaintiff is entitled to succeed in the said action of ejectment. If the court should be of opinion that the plaintiff is so entitled, then the verdict is to be entered for the plaintiff; otherwise, the verdict is to stand for the defendants. C. Wood (with whom was Montague Smith, Q. C.), for the plain*550] tiff. (a) There has been no breach of *covenant so as to work a forfeiture; and, if there has been, Barnewell never took advantage of the forfeiture, or did anything that was equivalent to a re-entry. In order to establish the alleged forfeiture, the defendant must rely upon a breach of the covenant to repair or to pay rates, or on the bankruptcy of the plaintiff. As to the want of repair,-no forfeiture accrues by reason of the breach of a covenant for repairs framed like this. [COCKBURN, C. J.-If the lessee is bound to repair, independently of the inspection and notice, the forfeiture clearly attaches upon the premises being suffered to be out of repair.] The obligation to repair presupposes a want of repair. Does a forfeiture arise the first moment that the premises are out of repair? If not, it follows that the lessee. must have a reasonable time for doing the repairs. [COCKBURN, C. J.The lessee covenants to repair and keep in repair the premises demised, (a) The points marked for argument on the part of the plaintiff, were, "1. That the facts stated in the case do not amount in law to any forfeiture of the lease of the 28th of September, 1850, either by reason of non-repair, the non-payment of rates, &c., or the bankruptcy of the plaintiff : "2. That the mere fact of the premises being out of repair, without notice to repair and amend, as provided for in the lease, would not in law enure as a forfeiture: "3. That it does not appear in the case that there were any arrears of rates due on the 24th of October, 1853, or that the rates so stated to be then unpaid, were unreasonably overdue; and that therefore in law there was no forfeiture by reason of the same being unpaid, as therein stated: "4. That there could be no forfeiture in 1853, by reason of the plaintiff's bankruptcy, as it did not occur till December, 1854: "5. That if, by reason of any of the above causes, a forfeiture accrued before the 24th of October, 1853, yet the facts do not show that Barnewell did anything to take possession of the premises in consequence of the same, or anything which would in law put an end to the lease: "6. That the facts show, that, if even this was a forfeiture in October, 1853, yet that Barnewell waived such forfeiture, by subsequently receiving the rent reserved in the said lease from the defendants or others in possession of the premises: "7. That the lease of the 28th of September, 1850, is still in full force." [*551 and there is a power to the lessor to enter and view the state of the premises, and to give the lessee notice of any want of repair, and a further covenant by the lessee to do the repairs within three months after notice,-do you say that the first covenant is merely introductory of the second?] The whole constitutes one covenant. [WILLIAMS, J.-It is settled law that these are separate covenants: Roe d. Goatly v. Paine, 2 Campb. 520; Doe d. Morecraft v. Meux, 4 B. & C. 606 (E. C. L. R. vol. 10), 7 D. & R. 98 (E. C. L. R. vol. 16)]. Bayley, J., says, in Doe d. Morecraft v. Meux,-"The landlord in this case had an option to proceed on either covenant, and, after giving notice to repair within three months, he might have brought an action against the defendant upon the former covenant, for not keeping the premises in repair. But that is very different from insisting upon the forfeiture." [COCKBURN, C. J.-He treats the two as independent covenants.] The court was only considering whether or not the forfeiture was waived. In Horsfall v. Testar, 7 Taunt. 385 (E. C. L. R. vol. 2), 1 J. B. Moore, 89 (E. C. L. R. vol. 4), it was held that a covenant to repair at all times, when, where, and as often as occasion should require during the term, and at furthest within three months after notice of want of reparation, is one covenant; and it cannot be stated as an absolute covenant to repair at all times when, where, and as often as occasion shall require during the term. [COCKBURN, C. J.-There, the whole clearly formed one entire covenant.] Wood v. Day, 7 Taunt. 646, 1 J. B. Moore, 389, rather looks the other way: but the case is distinguishable from the present, inasmuch as there the term was ended; here, it is still subsisting. In Sicklemore v. Thistleton, 6 M. & Selw. 9, the plaintiff demised a messuage and farm to J. T. at a rent payable quarterly; and the defendant covenanted that J. T. should pay the rent and observe the covenants, and that, in case J. T. should neglect to pay the rent for forty days, the defendant would pay on *demand: and it was held that the defendant was not chargeable until after forty days, and demand [*552 made. Lord Ellenborough says: "I cannot help thinking this is a qualified covenant, and that the stipulation, that, if the lessee shall neglect to pay for forty days, the surety shall pay on demand,' which must have been introduced in ease and for the protection of the surety, does, in reasonable construction, pervade and restrain the former covenant." [CockBURN, C. J.-None of us entertain a shade of doubt. Doe d. Morecraft v. Meux, 4 B. & C. 606 (E. C. L. R. vol. 10), 7 D. & R. 98 (E. C. L. R. vol. 16), and Wood v. Day, 7 Taunt. 646 (E. C. L. R. vol. 2), 1 J. B. Moore 389 (E. C. L. R. vol. 4), are distinct authorities to show that the covenant to repair, and the covenant to repair within three months, are separate and in dependent covenants. Independently of authority, we should have felt no doubt.] Assuming that to be so, still there is nothing in this case to show any forfeiture has been incurred. To constitute a forfeiture for non-repair, a reasonable time must be given for doing the repairs: Doe d. Baker v. Jones, 5 Exch. 498.† There is no allegation here that a reasonable time had elapsed. [COCKBURN, C. J.— Is not that necessarily involved in the statement that "shortly before and on the 24th of October, 1853, the premises were dilapidated and out of repair, so as to be a breach of the covenant?"] There is nothing to show how long the premises have been out of repair. [COCKBURN, C. J.—They are said to have been in a state of dilapidation: to be so, they must have been out of repair for a considerable time. That is the fair inference from the statement.] The law always leans against forfeitures. [COCKBURN, C. J.-I have yet to learn that the law altogether disregards the interest of the landlord. I must confess, I see no hardship in the forfeiture being insisted upon here.] Then, has the landlord taken advantage of the breach? Barnewell says, that, on the 24th of October, 1853, *knowing that the premises were out of *553] repair, and that the rates were unpaid, he made a verbal agreement with the defendants that they should occupy the premises as tenants to him until Lady-Day, 1854: and, in reply to the question,"How came you to let the premises to the defendants?" he said,-"I let them with the intention of decidedly putting an end to the lease, and taking possession." The court cannot take notice of the intention with which an act is done. Besides, Barnewell's subsequent correspondence with the defendants shows that he did not on the 24th of October, 1853, intend to treat the lease as no longer subsisting. It is to be observed, too, that no notice of this dealing with the under-tenants was given to the lessee. Bovill, Q. C. (with whom was C. Pollock), for the defendants.(a)— [WILLIAMS, J.-How did the defendants originally come in? Wood.— The fact does not appear in the case: but it must be assumed that they came in under the plaintiff. CROWDER, J.-The landlord being entitled to re-enter upon a forfeiture, lets the premises to a tenant whom he finds there, and receives rent from him. Is not that a taking advantage of the forfeiture?] The case states, that, "between the 2d and 21st of *554] March, 1854, Barnewell verbally agreed to *let to the defendants the said premises for another year, and the defendants continued tenants to Barnewell for such year, and thenceforward, and paid rent to Barnewell up to the time of the trial." [COCKBURN, C. J.-That is conclusive.] COCKBURN, C. J.-I am clearly of opinion that a forfeiture has been incurred here. The lease in question contains a general covenant by the lessee, his executors, &c., to repair and keep the premises in repair; and also a covenant that it should be lawful for the lessor, his executors, &c., to enter at all convenient times to view the condition of the premises, and to give the lessee notice of any want of repair, requiring him to do such repairs within three months, and that the lessee, his executors, &c., should within that period repair accordingly. These two covenants are quite separate and independent. The authorities are all clear to that effect; and they coincide with the common sense of the thing. It would indeed be monstrous, if, giving credit to his tenant that he will duly perform his engagement, the landlord abstains from harassing him with continual inspection, and then should find himself debarred of his remedy for a breach of a positive covenant. I cannot entertain the slightest doubt that there has been a forfeiture here. As to the (a) The points marked for argument on the part of the defendants were as follows:"1. That, at the commencement of this action, the plaintiff had no such title to the premises in question as would enable him to maintain it against the defendants: "2. That the covenants of the lease from Barnewell to the plaintiff's father were broken; that a right of re-entry accrued to Barnewell; and that he duly exercised such right: "3. That there was a forfeiture of such lease, and that the forfeiture has never been waived: "4. That the acts of Barnewell and those claiming or acting under him amounted to a determination of the lease." |