and entitled to the said demised premises, with the appurtenances, under and by virtue of the said demise and assignment, when, where, and as often as need or occasion hath been and required, at his own proper costs and charges, well and sufficiently repaired, upheld, supported, sustained, maintained, glazed, paved, purged, emptied, cleansed, scoured, amended, and kept the said demised messuage or tenement and premises, and every part thereof, with the appurtenances, and the pavements, as well within the said premises as without in the street, so far as thereunto appertained, all and every the pipes, wydraughts, sinks, privies, gutters, and glass windows to the said premises belonging, or in anywise appertaining, in, by, and with all and all manner of needful and necessary reparations and amendments whatsoever, save and except only the said messuage or tenement so burnt down, consumed, and destroyed by fire as aforesaid, since the same has been so burnt down, consumed, and destroyed by fire as aforesaid, according to the form and effect of the said indenture, and of the said covenant of the said John Carbill, so by him made in that behalf as aforesaid, in manner and form as by the said John Bullock hath in his said declaration in that behalf above alleged; and this he is ready to verify, &c.

Demurrer, and joinder in demurrer.

Shepherd, for the plaintiff. The defendant was bound to repair, at all events. All. 27. If the lessee is bound by a covenant to repair, he shall do it, notwithstanding all accidents. Dy. 33. 2 Show. 401. Brown v. Quilter, 2 Com. Rep. 627. 2 Shower's Rep. 420.

Wood, for defendant, admitted he could not distinguish this case from those cited; and

The Court gave

Judgment for plaintiff.

1796.

BULLOCK

against DOMMITT.

1797.

Trinity Term.

liament, autho

EDWARDS against WILSON.

An act of par- DECLARATION states, that whereas the said plaintiff, on, &c., and long before was, and to improve pub- from thenceforth hitherto hath been, and still is, clerk lic streets, and

rising trustees

to sell waste lands to defray the expences of such improvements, and to use the money arising from such sales in such manner as they shall think

to the commissioners acting in the execution of a certain act of parliament, passed in the 32d year of the reign of his present majesty, intitled "An act for paving, cleansing, lighting, and otherwise improv"ing the streets, lanes, and other public passages and places within the borough of Derby, and for selling fit, for the car-❝ a certain piece of waste ground, situate within the rying the pur

poses of the act" said borough, called Nuns Green, towards defraying into execution, does not autho-"the expence of the said improvements ;" and the said

rize them to expend such money in the opposition of a bill in parliament, which, if passed,

would turn out

year

defendant, during all the time aforesaid, was, and still is, one of the trustees appointed by virtue of a certain other act of parliament, made and passed in the eighth of the reign of his present majesty, intitled An act for selling part of a green, called Nuns Green, ous to the pur-" in the borough of Derby, in the county of Derby, and " for applying the money arising from the sale thereof "in the improvement of the remaining part of the "said green, and for other purposes therein mention

disadvantage

poses of the

former act.

'ed," for putting the said last mentioned act, and the several powers therein contained, in execution. And whereas also, after the passing of the said several acts of parliament, and whilst the said plaintiff was such clerk to the said commissioners as aforesaid, and whilst the said defendant was such trustee as aforesaid, to wit, &c. at, &c., the commissioners acting in execution of the said act of the thirty-second year of the reign of his present majesty, did, in due manner, give notice to one J. T., one of the trustees appointed in the said act of the 8th year of the reign of his present majesty, and who, as such trustee, had acted in the

trusts in such act mentioned (there being at the time of giving such notice, no clerk to the trustees appointed in or by virtue of the said last mentioned act); that the trustees appointed in and by virtue of the said act of parliament, made and passed in the eighth year of the reign of his present majesty, should, and they were thereby required to make and deliver to the plaintiff, their treasurer and clerk, a true, fair, and particular account in writing, of all money which should have been by the said trustees from time to time received by virtue of the said act of the eighth year of the reign of his present majesty, and how, to whom, and on what account such money had been paid, together with the proper receipts and youchers for such payments, which said notice had, in due manner, been agreed to, and subscribed by the commissioners present at a certain public meeting of the commissioners, acting in execution of the said act of the 32d year of the reign of his present majesty, duly held at &c. on &c. the number of commissioners present at such meeting amounting to seven; and further, that the trustees appointed in or by virtue of the said act of the eighth year of the reign of his present majesty, did not under their hands, nor under the hands of any five or more of them, within one month next after such notice given by the said commissioners to the said J. T. as aforesaid, make up or deliver to the said plaintiff, a true, fair, and particular account in writing of all money which had been by the said trustees from time to time received by virtue of the said act of the eighth year of the reign of his present majesty, and how, to whom, and on what account such money had been paid, but on the contrary thereof wholly refused and neglected so to do, contrary to the form of the said act of the thirty-second year of the reign of his present majesty; and further, that the trustees appointed in or by virtue of the said act of the 8th year of the reign of his present majesty, from time to time received by

1797.

EDWARDS

against

WILSON,

1797.

EDWARDS against WILSON.

virtue of the same act, divers sums of money, amounting in the whole to a large sum of money, to wit, &c. to wit, at, &c. and that the money, which at the time of giving such notice as aforesaid, remained in their hands, upon the balance of the account of the money received and paid by the said trustees, by virtue of the said lastmentioned act, amounted to a large sum of money, to wit, the sum of &c. to wit, at &c.; of which said several premises the said defendant afterwards, and after the expiration of one month from the time of giving such notice as aforesaid, to wit, on &c. had notice, whereby, and by force of the said act of the 32nd year of the reign of his present majesty, an action hath accrued to the said plaintiff, as such clerk as aforesaid, to demand and have of, &c. from the said defendant, as such trustee as aforesaid, on behalf of all the said trustees, the said sum of, &c. being the money remaining in the hands of the said trustees, upon the balance of such account as aforesaid, parcel, &c. There were also counts for money had and received as trustee, &c. and on an account stated. To this declaration the defendant pleaded the general issue, nil debit. Easter Term, 1796, by a rule of his majesty's court of King's Bench, made in this cause, it was ordered, that the judgment which had been signed in this cause should be set aside, the defendant undertaking to admit every thing necessary for bringing on the question, viz. whether there was any balance in the hands of the trustees under the former act of parliament at the time of bringing the action, which is to depend upon the question, whether the sum of 94l. 17s. 7d. being the expence incurred in opposing the late act, ought to be allowed to the trustees under the former act, or ought to be recovered in this action, as a balance in the hands of the treasurer, and that he the said defendant is a trostee, against whom an action may be brought under the last act.

In

The cause came on to be tried at the last summer assizes, before Mr. Justice Buller, when the following case was made for the opinion of the court, viz. in 8th Geo. III. an act of parliament passed, intituled, " An "act for selling part of a green, called Nuns Green, in "the borough of Derby, and for applying the money "arising from the sale thereof in the improvement of "the remaining part of the said green, and for other purposes therein mentioned;" reciting that there was within the borough of Derby, in the county of Derby, a certain piece of ground, called Nuns Green, containing by estimation forty-eight acres, or thereabouts, on which the freeholders, owners, and occupiers of messuages, lands, and tenements, and burgesses within the said borough, had right of common. Also reciting, that several small buildings had lately been erected thereupon, and great damage had been done to the said green by persons digging gravel thereout, to the no small detriment and loss of the freeholders, occupiers, and burgesses, having right of common thereon, as well as to the prejudice of the health of the inhabitants of the said borough, by reason of the stagnated water and other nuisances. Also reciting that the said borough was, by the increase of trade, become very populous, and that there was a want of more dwelling houses for the inhabitants. Also reciting that if the said nuisances and incroachments on the said green were removed and prevented, and power given to sell part thereof, for the purpose of erecting dwelling houses and buildings thereon, and the money arising from such sale were applied in removing the said nuisances and incroachments, it would greatly tend to the benefit and advantage of the said freeholders, owners, occupiers, and burgesses, as well as of the other inhabitants of the said borough; it was therefore enacted, that the mayor and recorder of the borough of Derby, for the time being, the Right Hon. Lord

1797.

EDWARDS

against WILSON.