*would make the right to fine commensurate with the power;
but they have no right to impose a fine unless they are satisfied
that it is the proper one. And, on a conviction like this, the
magistrates may have intended one party to pay a fine little
more than nominal, and the other a more considerable one; yet
the first might be imprisoned till the latter had paid his fine.
It is laid down in the passage of Hawkins, already referred to,
that a judgment having this effect would be erroneous.
rule must be discharged.

LITTLEDALE, J.:

The

The party informing in this case might have proceeded against the plaintiff and Parker jointly or severally, either by action or criminally. The proceeding is instituted under stat. 9 Geo. IV. c. 31: the magistrates hear the complaint, and decide that 4s. be paid as a fine, and 6s. for costs, and that the parties be imprisoned fourteen days, unless the fine and costs be sooner paid. It is not certain, upon the face of the conviction, whether the magistrates intended that each defendant should pay 4s., or that that sum should be paid between them; but, upon the whole, I think it must be taken to mean that one fine of 4s. should be paid. Then, supposing the case were that of an indictment against two persons, could there be a judgment against them jointly, that they should pay a fine? It is the constant practice in this Court, on judgment against several parties, where a fine is imposed, that the case of each is considered separately. By the stat. 9 Geo. IV. c. 31, s. 28, a summary conviction of assault, under that Act, is made a bar to any further criminal proceeding. The conviction, therefore, stands in the place of an indictment; and the officers of the Court say that, on indictment, there is no instance of a joint

upon two persons for an assault. In Godfrey's case (1), referred to in the margin of the passage of Hawkins which has been cited, it is said that when a fine is imposed against law, as joint, where it should be several, it may be avoided by plea and judgment of the Court. And so in this case, the adjudication of a joint fine, being brought before the Court, may be declared. (1) 11 Co. Rep. 42 a.

MORGAN

v.

BROWN.

[518]

[ *519]

MORGAN

ተ.

BROWN.

invalid, as well as if the question had been raised by plea. The general result of the authorities cited in Hawkins, I think, is that, where a fine is imposed upon several defendants, it should be imposed upon them separately. And therefore, upon those authorities, as well as on the grounds of reason and the practice of the Court, I am of opinion that there should, in this case, have been separate fines, and that the conviction was bad, not in form but in substance.

WILLIAMS, J. concurred.

1836. Jan. 19.

[ 520 ]

Rule discharged.

JOHNSON v. THE CHURCHWARDENS AND OVERSEERS OF
THE PARISH OF ST. PETER, HEREFORD.

(4 Adol. & Ellis, 320–327; S. C. 6 N. & M. 106; 1 H. & W. 720; 5 L. J.
(N. S.) K. B. 116.)

A. demised to B., for a term of years, two messuages; the lease contained a covenant by B., that he would, during the term, keep the premises in repair, and leave them, at the end of the term, in good repair and in the same state as they were in at the beginning. At the end of the term, the messuages were out of repair, and had been converted into a single house. B. held on without a fresh lease, and C. afterwards purchased the reversion of A., and B. continued to hold on under C. Held,

1. That B. was not liable in assumpsit on an implied contract to put the messuages in such repair, and in the same state, as they were in at the commencement of the term.

2. That, supposing B. so liable, C. had no right of action for breaches of the contract committed before he purchased the reversion.

ON the trial of this cause at the Hereford Summer Assizes, 1834, before Alderson, B., a verdict was taken for the plaintiff. with 500l. damages, subject to the award of a barrister, who was to state on the face of his award any question of law which he might be requested to raise, either as to the right of the plaintiff to recover, or as to the principle on which the damages, if any, were to be settled. The arbitrator found specially

as follows:

I find that, by an indenture of lease, bearing date 15th of December, 1807, Harcourt Woakes demised two messuages to Francis Gritton and William George, churchwardens, and

JOHNSON

v.

THE CHURCHWARDENS OF

HEREFORD.

[ *521 j

Thomas Day, overseer, of the poor of the parish of St. Peter in Hereford, and to their successors, for the term of twentyone years from the 25th of December then next, at the yearly rent of 161. 168. payable at Midsummer and Christmas. This ST. PETER, lease contained the following covenant by Gritton, George, and Day, for themselves and their successors, churchwardens and overseers of the parish of St. Peter for the time being that they the said F. G., W. G., and T. D., and their successors, churchwardens and overseers, &c., shall and will from time to time, and at all times during the said term, at their own costs and charges, keep in good and tenantable repair the said messuages or dwelling houses hereby demised, and, at the end or sooner determination of the said term, shall and will quit and leave the said premises and every part thereof in such good and tenantable repair; and also they the said F. G., W. G., and T. D., churchwardens, &c., shall and will use and keep the same, and every part thereof, as and for a workhouse or house of industry for the use of the said parish of St. Peter, or for such other uses and purposes as they may think proper to convert the same, provided the said premises and every part thereof are left in the same state and condition as they are at present, at the end of the said term. The premises were occupied by the parish of St. Peter under this lease, until its expiration on the 25th of December, 1828, the two messuages having been converted into one poor-house, and continuing in that state on the 25th of December. Possession of the premises was not given up at that time; but they continued to be occupied as the parish poor-house; and the rent of 161. 68. per annum was paid by the parish officers for the time being until the 2nd of February, 1833, when possession was given up, after notice to quit served by the churchwardens and overseers upon the plaintiff; but the premises were not re-converted into two distinct tenements.

I find that the interest of Harcourt Woakes in the premises had, at the time when the lease expired, become vested in one John Henderson, who afterwards conveyed the same to the plaintiff by lease and release of 9th and 10th of February, 129. The rent payable by the parish for these premises was

JOHNSON

r. THE CHURCH

WARDENS OF

ST. PETER,

HEREFORD. [ *522 ]

[ *523 ]

then apportioned, and a part paid over to Mr. Henderson; from
which time the rent-days were altered from Christmas and
Midsummer to the 2nd of February and the 2nd of August.
I find that the above covenant to repair was broken by the said
Gritton, George, and Day, at the expiration of the said lease.
and the dilapidations amounted to the sum of 531.; and I find
that that amount of dilapidations still continued at the time
when the possession was given up, on the 2nd of February, 1833,
but no more.
And I find that the covenant for the leaving of
the premises in the same state and condition as at the time
of the demise was also broken at the expiration of the lease,
if the Court shall be of opinion that the non-conversion of the
workhouse into two distinct tenements constituted a breach
thereof. If the defendants are to be considered as holding
after the determination of the lease upon the terms of tenants
from year to year simply, then I find that they fully repaired
the premises during the whole of such their yearly tenancy, as
far as such tenants are liable. If they are to be considered
as holding subject to the same terms as were contained in the
above lease, then, as to the amount of dilapidations, I do not
find any thing to be due beyond the above mentioned sum
of 531., which was so due, as already stated, on the 25th of
December, 1828, and still continued due on the 2nd of February,
1833, the dilapidations being the same at both periods; but
I find that the re-conversion of the poor-house into two houses,
in the same state and condition as at the original demise, would
have cost the sum of 51.

The declaration consisted of three counts. The first stated that, in consideration that the defendants had become tenants to the plaintiff of certain premises that had before then consisted of two separate messuages, but which had been altered and converted into a workhouse, and so continued and remained a the time of making the promise after mentioned, upon certain terms and conditions, that is to say, that the defendants would during the continuance of the said tenancy keep the said premises in good and tenantable repair, and, at the expiration of the said tenancy, re-alter and re-convert the said workhouse in tw separate houses, and restore the said premises to the same stat

JOHNSON

ፖ.

THE CHURCHWARDENS OF

HEREFORD.

and condition in which they were previous to their alteration and conversion, and deliver them up in such good and tenantable repair, the defendants promised so to do: the plaintiff then alleged that the tenancy continued for a long space of time, ST. PETER, until the defendants quitted and delivered up possession; and he stated, as a breach, that the defendants did not keep the said premises in good and tenantable repair, nor re-alter or re-convert the said workhouse into two separate messuages, or restore the said premises to their former state and condition. The second count was confined to the non-repair, and alleged that the defendants held the premises upon terms and conditions similar to those contained in the covenant of Gritton, George, and Day. The third count was the common count for not keeping in good and tenantable repair. The defendants pleaded the general issue.

Upon the above statement of facts, I award that the verdict now entered for the plaintiff shall be set aside, and a verdict be entered for the defendants, unless the Court shall be of opinion that the plaintiff is entitled to recover the said several sums of 531. and 51., or either of them; and according to such decision I award that the said verdict shall be reduced to the sum of 581., 531., or 5l., with forty shillings costs.

In Michaelmas Term, 1834, Maule obtained a rule to shew cause why the verdict and judgment should not be entered for the plaintiffs for 531., or 51., or both sums, and the award be set aside.

Talfourd, Serjt. and Godson now shewed cause (1):

The arbitrator has found properly. Both plaintiff and defendants are strangers to these covenants. The plaintiff purchased after the lease had expired, and the covenant had been broken; he took the premises as they were at the time of the sale to him; but he could not purchase a right of suing for past breaches. And the price which he paid must have been estimated upon this principle. Again, the defendants came into possession after the lease had expired, and after the

(1) Before Lord Denman, Ch. J., Littledale, and Williams, JJ.

[ 524 ]