« ForrigeFortsett »
1806. venant should be expressed in any particular form of
"words, but the meaning of .the parties is to be col
versus lected from the whole of their contract, and the natuBliani.. fa| constructiou of this covenant is, that, as long as the pump, in the course of years, shall remain, for so long, the plaintiff is to have the use of it; and if the construction in favour of the defendant is right, the plaintiff might have called upon the defendant to repair it. In Griffiths v. Goodiiand,* there was a covenant that the -plaintiff should for seven years, have all the grains made in the plaintiff's biewhouse ;breach that the defendant put hops in the grains before they were delivered, whereby the plaintiff was injured; and it was held good; for it was the intention that the plaintiff'should have them for the use of his cows, Jn Cole's casc,i-one lets a house except two rooms and a free passage to them; the lesser was disturbed in the passage, and it was held that covenant lay; but not so for the rooms. 11 may be admitted, that if thepump were destroyed by accident, the lessor would not have been answerable in covenant, nor, if it were necessary to take it away. In Hol/isv. Carr,^ in a marriage settlement it was slated that a fine was intended to be levied, and thai was held a covenant to levy a fine. And in Chaneellor v. Poo/e,§ it is clearly held, that no particular words are necessary to make a covenant. This is altogether a question of intention, and it is obvious that the intention o; the parties was, that the reasonable use of the pump should be given as long as it should remain, in the ordinary course of things; and the taking it away, without any reason, is a breach of the covenant." He cited also Branch v. Ewington,^ IVhitleu v. Loftus,\\ Stevens v. Carringlon** and Lloyds. Tomkies.-[f
Raym. 46'4. t Salk. IQ6 12 Mod. 86. § Dovgl. 765. Ti Dovgl. 5\8. || 8 Mod. IgO. **' Doi/gl. 27. + + 1 Term. Rep. 67 1.
Abbott. "The cases cited as to the construction i£<v3. of implied covenants do not apply to this case; be- Rbodi;» cause there is here an express covenant, and the only „ w** question is, what is the meaning of these express words. The words in the covenant, ' whilst it shall twain there,' have not been considered in thcarguroent for the plaintiff'; and they can have no meaning, unless they are used as a limitation of the covenant."
Lord Ellenborough, C.J. "The question turns on the meaning of a covenant contained in a lease where by certain premises are demised, followed by a covenant that thelessor will permit and suffer the colessee and the plaintiff their executors, administrators, and assigns, at all times during the continuance of the said term, to have free ingress, egress, and regress with horses, carts, and carriages, goods, and merchandizes, through the gate at the bottom of the yard, belonging to the said messuage or tenement and premises, to the warehouse aforesaid ; and also free ingress, egress, and regress, for themselves, friends, and servants, by nud through the passage leading from Cltrkeitwell Close, aforesaid, through the said messuage or tenement, into the said yard; and the use of the pump in the said van', jointly with the said defendant, his executors, administrators, anti assigns, whilst the same should remain there, paying half the expences of keeping it iu repair. If these words 'whilst the same shall remain there,' were not inserted, I should have thought that a covenant, that he should have the use of the pump, was a covenant, that he should have the use of it, during the lease. But the covenant is qualified with these words; and the question is, whether they do not reserve to the lessor a free uncontrolled election to remove it at his pleasure; that pleasure being governed by motives of any sort whatever. This case can derive very little light from the construction of other covenants in other cases, it is no more No. xxix. N. s. A a
than saying, as to the use of the pump, you shall hav^ half the use of it; but I will not be bound to keep U up for you ; or, if I should choose to erect the pump any where else.which I may do for useful purposes, I shall be at liberty to take it away; In general the demise of .the use of a thing is a demise of the thing itself; but still even that does not cast on the lessor an obligation to repair it. Here is an obligation on the lessor to repair it. And he might remove it, although his
intention might be capricious or even injurious."
Grose, J. Of the same opinion.
Lawrence, J. " I think that the true construction of the covenant is, that the lessor shall be at liberty to remove the pump ; but I have had great doubts whether that was really the intention of the parties. For, if it had been his intent to remove it at pleasure, it would have been very easy for him to have added, that it shall not prevent the lessor from removing the pump."
Le Blanc, J. "The owner only meant to covenant, that while he chose to keep the pump there, for his own use, the lessor should have the joint use of it. I see a difficulty in giving any other construction to the words, * whilst it remains there,' than, that it 'I a qualification, by which the lessor intended to reserve to himself that power which he had before over it."
Judgment for the Plaintiff.
Gordon and Another against Corbett.—3d Feb. 1S0fi-,
ne motion to refer it to the matter to compute principal andinterett, b)c. u not to be made till ike day after interlocutory judgment i$ signed.
RULE having been obtained to shew cause why it Oosdow should not be referred to the master to compute and Anothe>
"4 ■. » ■" versus
principal and interest upon a bill of exchange, CoKBiTt,
Comyn shewed cause, upon the ground that the judgment was irregular; but
The Covet held, that the regularity of the judgment could not be questioned on this motion.
It then appeared that the judgment had been signed, and the motion to refer, &c made on the same day. The master said, the practice was, to sign judgment one day, and move at a subsequent day.
Wherefore by The Court
THE RULE DISCHARGED.
Cl*wlt and Another against Ramsbottom.—3d
After a rule to abide by a plea, the defendant cannot withdraw a
Semble, he may plead the two special pleas, without the non est factum.
'J'HE plaintiff's declared in covenant as between landlord and tenant, for not repairing; with a 2d Cliwlt
. , „ . . , i /. I mi and Another
breach for not quitting at the end or the term, ihe ^ defendants pleaded a sham demurrer, whereupon the R*m»»o«°* plaintiff's served a rule on them to abide by their Dle&j the dej'enduntt then waved the demurrer, and
1B06. pleaded nan est factum, and also, first, that they did
Qlewiv repair, and to the second breach that they did not
»nd Another holdover. Upon this, the plaintiff's signed judgment
Ramuottom. as for want of a plea. The defendants obtained a rule
to shew cause, why this judgment should not be set
,' aside for irregularity.
Wig Ley, shewed cause, and contended that after « i.. •'
pleading a sham plea, and being ruled to abide by
the plea, the defendants could only plead the general issue, and could not by the rules of the court be allowed to plead the general issue, and also two special pleas.
Wood, contra, argued that in effect the general issue,
non estfactum, could never meet the general merits of the case, and, although there were two several pleas, yet they were only to the separate breaches in the declaration; and therefore, formed in fact but one general issue, which put the whole facts and merits upon trial by the country.
Lord Ellenbokoogh, C. J. "If you had only taken issue upon two of the breaches, voir might have been within the equity of the rule, if not the letter of it. But now, having pleaded the general issue with two special issues, you are neither within the letter nor the spirit of the rule. If the mere formal general issue will not bring all the matter of fact in issue, as in this case it does not, you may plead that which is nearest to it;"
Lawrence, J. Observed that it was evidently a trick to get over the term.
Gbose, J. Expressed a wish, that the practice should be rendered similar to that of the Common Pleas, where the motion foe leave to plead several matters is a special motion. . .