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venant should be expressed in any particular form of words, but the meaning of the parties is to be collected from the whole of their contract, and the natural construction of this covenant is, that, as long as the pump, in the course of years, shall remain, for so long, the plaintif is to have the use of it; and if the construction in favour of the defendant is right, the plaintifo might have called upon the defendant to repair it. In Griffiths v. Goodland,* there was a covenant that the plaintiff should for seven years, have all the grains made in the plaintiff's brewhouse; breach that the defendant put hops in the grains before they were delivered, whereby the plaintif was injured ; and it was held good; for it was the intention that the plaintiff should have them for the use of his cows, In Cole's case, † 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. It may be admitted, that if the pump were destroyed by accident, the lessor would not have been answerable in covenant, nor, if it were necessary to take it away. In Hollis v. Carr,& in a marriage settlement it was stated that a fine was ințended to be levied, and that was held a covenant to levy a fine. And in Chancellor v. Poole, 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 of 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, IVhitley y. Loftus,|| Stevens v. Carrington,** and Lloyd v. Tomkies.tout
Raym. 464. + Salk. 196 1 2 Mod. 86. § Dougl. 765. Dougl. 518. || 8 Mod. 190.
** Dougl. 27. ++ 1 Term. Rep. 671.
ABBOTT. “ The cases cited as to the construction 1806. of implied covenants do not apply to this case; be. Raones cause there is here an express covenant, and the only
BULLAND, question is, what is the meaning of these express words. The words in the covenant,' whilst it shall remain there,' have not been considered in the arguinent 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 the lessor will permit and suffer the colessee and the pluintiff 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 inerchandizes, through the gate at the bottom of the yard, belonging to the said messuage or tenement and premise's, to the warehouse aforesaid ; and also free ingress, égress, and regress, for themselves, friends, and servants, by, and through the passage leading from Clerkenwell Close, aforesaid, through the said messuage or tevement, into the said yard; and the use of the pump in the said yari', jointly with the said defendant, his executors, administrators, and assigns, whilst the same should remain there, paying half the expences of keeping it io repair. If these words ' whilst the same shall remain there,' were not inserted, I should bave thought that a cove. nant, 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 uncontrouled 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, IXIX. N. S. - A a
than saying, as to the use of the pump, you shall have half the use of it; but I will not be bound to keep it up for you; or, if I should choose to eșect 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 is a qualification, by which the lessor intended to reserve to himself thal power which he had before over it."
JUDGMENT for the PLAINTIFF.
GORDOŃ and Another against CORBETT.-3d Feb. 1806.
&c. is not to be made till the day after interlocutory judgment is .
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should not be referred to the master to compute and Anothes principal and interest upon a bill of exchange,
CORBETT, Comen shewed cause, upon the ground that the judgment was irregular ; but ful l 91,621
The court held, that the regularity of the judge ment 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 judge ment one day, and move at a subsequent day. Wherefore by THE COURT
THE RULE DISCHARGED. I
Clewly and Another against RAMSBOTTOM.-3d
demurrer and plead non est factum, and also two special pleas
tend to put the facts in issue.
THE plaintiffs declared in covenant as between land.
lord and tenant, for not repairing; with a 2d CLEWLY breach for not quitting at the end of the term. The an defendants pleaded a sham demurrer, whereupon the RAUSBOTTOM plaintiffs served a rule on them to abide by their plea; the defendants then waved the demurrer, and
1806. pleaded non est fuctum, and also, first, that they did Cew LY repair, and to the second breach that they did not and Another hold over. Upon this, the plaintiff's signed judgment RAMSHOTTUM. as for want of a plea. The defendants obtained a rule
to shew cause, why this judgment should not be set ..:: aside for irregularity.' .
WIGLEY, shewed cause, and contended that after pleading a shain 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 al. lowed to plead the general issue, and also two special pleas.
Wood, contrà, argued that in effect the general issue, non est factum, 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 ELLENBOROUGH, C. J. “ If you had only taken issue upon two of the breaches, you might have been within the equity of the rule, if not the letter of it. But now, having pleaded the general issue with Čwo 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 nearextio it."
Lawrence, J. Observed that it was evidently. trick to get over the term.
GROSE, J. Expressed a wish, that the practice should be rendered similar to that of the Common Pleas, where the motion for leave to plead several matters is a special motion,