S.C. 1901. TATTLE V. Court he would have saved the additional expense. But here if the respondent had paid into Court he would have had to pay more. It was a proper case for requiring the actual MCKERROW. damage to be proved to the satisfaction of the Magistrate. Short v. Kalloway(1) was a case of improper resistance to the action in which the costs were incurred. See, further, as to the recovery-over of costs, Rowlatt on Principal and Surety(2). The respondent could not bring in the appellant as a third party, as in Hornby v. Cardwell(3), there being no provision for so doing in the Magistrate's Court. The risk of an action against the party indemnified is one of the most obvious of the contemplated consequences of a covenant to indemnify: Mayne on Damages(4). Apart from the previous judgment, the judgment in the present case is supported by the evidence as to the dilapidations. The definition of "tenantable re"pair" in Proudfoot v. Hart(5) is what the Magistrate went upon. Dalziell in reply. STOUT, C.J.:— Cur. adv, vult. This is an appeal both on law and facts from the decision of the Stipendiary Magistrate of Wellington. The respondent was lessee of certain premises in Featherston Street, Wellington, his landlord being the Society for the Propagation of the Gospel in Foreign Parts. He assigned his lease to Messrs. Haggett and Percy. They became insolvent, and the Official Assignee accepted the lease. The Official Assignee assigned the lease to the appellant, but the transfer was not registered. The lease contained two special covenants, one to repair and one to deliver up the premises in good and tenantable order and repair at the end of the term. It was alleged that during the term the appellant was in possession breaches were committed of both these covenants, and so the Magistrate found. The landlord sued the respondent, the lessee, in the Magistrate's Court for £60. The respondent defended the action, and judgment was given for £52 15s., and costs £7 19s., which was paid to the landlord by the respondent. The appellant had no notice of this action. A registered letter was sent to him, but it was not delivered to him, and his solicitors, who had been acting for him in other matters, had notice, but gave (1) 11 A. & E. 28. (2) p. 186. (3) 8 Q.B.D. 329. (4) 6th ed. 104. 66 S.C. 1901. TATTLE no notice to him. This suit was then begun for £60 14s., the amount of the judgment, and £3 3s., the respondent's costs of defending the action brought against him by the society. It was contended in the Court below that the covenants men- McKERROW tioned had been broken by the appellant, and that the damages that the respondent was entitled to recover was the amount of the judgment and the costs of defending the case. It was also contended that the cost of repairs would equal the amount of the judgment. The Magistrate does not seem to have expressly decided that the measure of damages the respondent was entitled to was the amount of the judgment against him, and his costs. He says that the "question is of little im"portance. Then he says this amount is the measure of damages; and again, "It is not necessary in this case to rest "the judgment wholly on the above view," because he finds as a fact that the amount recovered was not excessive." This decision is attacked on two grounds: first, it is contended that the amount recovered was excessive; second, that a sum representing the amount recovered, and costs, is not the measure of damages. If the matter were open, I should have considered the amount was excessive. It probably is the fact that when the Magistrate heard the case against the respondent the evidence since adduced in this case was not before him. In granting damages for breach of covenant to repair, the tenant is not bound to renovate the building; the age of the building and tear-and-wear have to be considered, and " giving "it up in tenantable repair" means giving it up in such a state that it is reasonably fit for use. Further, if the Magistrate did not consider that the judgment was the measure of damages, it is clear he should not have awarded the costs of the respondent in defending the action. The important question, therefore, is, is the judgment the measure of damages? and a subsidiary question is, was the respondent entitled to recover his costs? In this case no covenant has been entered into by the appelThe first lant to fulfil the covenants in the original lease. assignees did so covenant, but the appellant entered into no covenant. The question, then, is, is he liable to the lessee for the non-performance of the covenants mentioned, and, if so, what is the quantum of damages for breach? Moule v. Garrett (1) is a decisive authority that the appellant is liable. The assignee takes the estate of the lessee subject to the per (1) L.R. 5 Ex. 132; L.R. 7 Ex. 101. S.C. 1901. TATTLE 17. formance of the covenants when he remains assignee. Moule v. Garrett(1) followed the decision of earlier cases: See Burnett v. Lynch (2); Humble v. Langston(3); Wolveridge v. MCKERROW. Steward(4). And the relation between the assignee and the lessee is that the assignee, by virtue of the estate he holds, is bound to indemnify the lessee against the result of any breaches of covenant committed by him (the assignee): See Beattie v. Quirey(5). Being thus liable, the question arises, what is the quantum of damages? Mere breach by the assignee of the covenants in the lease would only give the lessee a right to recover nominal damages: Beattie v. Quirey(5). The lessee must have sustained damage by the breach, and he has sustained damage if a judgment is obtained against him. And this judgment must therefore be the measure of damages. This is not like the case of a lessee suing a sub-lessee. In such a case the relationship is different. There the lessee must sue on a separate covenant. It is the breach of the covenant made by the sub-lessee with the lessee that the action proceeds on, and hence different considerations arise. This will be seen if the many decisions in suits by lessees against against sub-lessees are looked at. See, for example, Penley v. Watts (6); Walker v. Hatton(7); and Logan v. Hall(8). In Penley v. Watts (6) Baron Parke said that if it had been an action on a contract of indemnity different considerations would have arisen: See also Bonner v. Tottenham and Edmonton Permanent Investment Building Society(9). In Moule v. Garrett (1) it was said that the amount of the judgment properly obtained--that is, without fraud or collusion-was the measure of damages. If the cases that seem to be opposed to this rule are looked at, such as.cases of lessee against sublessee, or contractor against sub-contractor, it will be found that the reason for the decisions in these cases is that the suit is on a different contract, though the words of the covenants may have been identical: See Penley v. Watts(6), Walker v. Hatton(7), and Logan v. Hall(8), cited before; and Barendale v. London, Chatham, and Dover Railway Company(10); Fisher v. Val de Travers Asphalte Company(11); and Pontifex v. Foord (12). (1) L.R. 5 Ex. 132; L.R. 7 Ex 101. K. B. 274. (3) 7 M. & W. 517; 10 L.J. Ex. 442. (6) 7 M. & W. 601; 10 L.J. Ex. 229. (7) 10 M. & W. 249; 11 L.J. Ex. 361. (8) 4 C.B. 598; 16 L.J. C.P. 252. (9) [1899] 1 Q.B. 161. (10) L.R. 10 Ex. 35. (11) 1 C.P.D. 511. (12) 12 Q.B.D. 152. S.C. 1901. TATTLE The other question raised is as to the allowance of £3 3s. costs of the respondent in the previous action. That these costs were paid was not clearly proved. What was proved was that the respondent employed a solicitor, that the action was McKERROW. defended, and through the defence the amount of the claim was reduced by £7 5s. The amount of costs granted was what is usually allowed in the Magistrate's Court, and in my opinion the Court had power to allow these. The only case 1 can find in which costs have not in such a case as this been allowed is the case of Hopkins v. Murray(1). In that case the costs were not given, but no reasons appear in the judgment for refusing costs, nor does the matter seem to have been argued. It may be that, as that was a suit for rent due, the amount was known, and the lessee should have paid without a suit. In the last edition of Mayne on Damages (2) it is assumed that Hopkins v. Murray(1) was not rightly decided. It is certainly in conflict with Smith v. Howell(3). See also Hammond & Co. v. Bussey(4); Sedgwick on Measure of Damages(5); Murrell v. Fysh(6); Sutherland on Damages(7); Howard v. Lovegrove(8). In Smith v. Howell(3) the costs of the lessee in the action by the lessor against him were allowed, but not the costs of the first assignee in defending his action brought against him by the lessee; the reason being that he should not have defended it, and that only the costs reasonably incurred are payable. Notice of the action did not reach the appellant here, and therefore the burden of showing that the defence was proper was cast on the respondent. But that onus has been discharged: the amount sued for was reduced by the respondent contesting the claim. I am of opinion, therefore, that the costs are recoverable. I think that the appellant should have been joined as a third party to the action; and it seems to me that section 61 of "The Magistrates' Courts Act, 1893," was meant to provide that form of procedure. The words are not identical with Rule 95 of the Supreme Court Code, and, though they seem to me to mean the same thing, they may not be efficient for the purpose. If they are not, an application for the removal of the case into the Supreme Court should have been made under section 157 of the Magistrates Act, and, I have no doubt, would have been granted. I may point out that in cases of this nature it is (1) 12 Ir. L.R. 359. (2) 6th ed. 340. (3) 6 Ex. 730; 20 L.J. Ex. 377. (4) 20 Q.B.D. 79, 92. (5) 8th ed. Vol. i. § 236. S.C. 1901. TATTLE usual in England and Ireland to resort to what is called the third-party rule: See Baxter v. France(1). So long as there are no breaches, prior to the assignee being in possession, MCKERROW. alleged, the assignee will be joined: See Greville v. Hayes (2). What has happened has certainly placed the appellant at a great disadvantage, and I am of opinion that he has been called upon to pay more than he should have had to pay. At the same time, there was evidence of a substantial breach of the two covenants in the lease that have been mentioned, and therefore in law he is liable for the amount of the judgment and costs in the action against the respondent. Seeing, however, that he was not brought in as a defendant, and that he was not subpoenaed as a witness, I shall not allow costs of the appeal. Appeal dismissed. Solicitors for the appellant: Findlay, Dalziell, & Co. (Wellington). Solicitors for the respondent: Menteath & Beere (Wellington). S.C. IN BANCO. WELLINGTON. 1901. September 15. STOUT, C.J. BIGGS . ELIAS. Magistrate's Court-Appeal on Facts—Additional Evidence-Principles on which should be admitted-New Trial-Discovery of Fresh EvidenceEvidence to contradict Witness as to Previous Statement-"The Magis trates' Courts Act, 1893," Section 161. The Court ought not to allow an application to take additional evidence, on the hearing of an appeal from a Magistrate on the facts, under section 161 of "The Magistrates' Courts Act, 1893," unless under circumstances which would justify it in granting a new trial of a Supreme Court action on the ground of the discovery of fresh evidence. The power given by section 161 should only be used when it is clear that there would be a failure of justice if further evidence were not admitted. Beaumont v. Whitcombe & Tombs(1) and Tattle v. McKerrow (2) followed. THIS was a motion that upon the hearing of an appeal from a Magistrate upon the facts the whole case should be reheard, or, in the alternative, that the Court should take the additional evidence of certain witnesses, under section 161 of "The Magistrates' Courts Act, 1893." |