M. T. 1854. removed until the commencement of this action, and had permitted Exchequer. POWER V. POOR-LAW waste in the garden and premises. The following were the issues settled :-First, whether the proviso was as set out in the replication ?-Secondly, whether the defendants covenanted with the plaintiff, as in the replication stated?—Thirdly, whether the sum of £80, or any other sum, was due to the plaintiff for rent on the 1st of November 1852 ?—and whether such sum was paid or tendered before that day to the plaintiff? Fourthly, whether after the making of the lease, and during the continuance of the demise, and before the 1st of November 1852, any and what fixtures which were affixed to the premises were prostrate and severed, or removed from the premises?—and if so, whether they continued to be so on the 2nd of November 1852? Fifthly, whether on the same day the demised premises, or any part thereof, were ruinous or in decay for want of needful and proper repairs, contrary to the provisions of the lease ?-Sixthly, whether the defendants on that day tendered to give up the premises in good and sufficient repair, according to the provisions of the lease," and offered to pay the rent on said day?"-[This was added at the trial by leave of the Judge.]-Seventhly, whether the sum of £160, or any part of it, was due by the defendants to the plaintiff at the commencement of the action? At the trial, before the CHIEF BARON, the plaintiff proved that the defendants had made several alterations in the building-had removed an old corn kiln and cut down bushes in the garden; but it also appeared that these alterations were made for the necessary accommodation of the paupers, and with the knowledge and sanction of the plaintiff himself, who was a Poor-law guardian of the union. The service of the notice was admitted, and it was proved that the clerk of the union had waited on the plaintiff with the rent on the 1st of November 1852, and had offered him a surrender of the premises, but the plaintiff refused to accept the possession, and handed the clerk a list of dilapidations; that the clerk thereupon did not pay the plaintiff the rent, as he refused to accept a surrender of the premises. The jury found the first and second issues for the plaintiff; on the third they found that, on the 1st of November Exchequer. POWER POOR-LAW COMMIS SIONERS. 1852, the sum of £80 was due to the plaintiff for rent-that said M. T. 1854. sum was not paid to him then, and that such sum was not tendered on or before that day; because, although it was offered by the defendants on that day, their offer was accompanied with a condition that the plaintiff should accept possession of the premises. On the fourth, they found that the defendants removed from the premises the corn kiln, some shutters, a rack and manger and a pump, for which a tank was substituted. The fifth they found for the defendants, and the sixth for the plaintiff, under his Lordship's directions; and on the seventh they found that £110 was due to the plaintiff. His Lordship, thereupon, reserved leave for the defendants to move to have the general verdict entered for them, if the Court should be of opinion that they were not bound to do more than yield up the premises in the state with which they had been put by the defendants for the purpose of a workhouse, for which they had been taken. A conditional order having been obtained on a former day, in pursuance of the leave reserved— The per Richard Armstrong (with him J. B. Murphy) showed cause. The finding on the third issue supports the verdict. formance of the covenants by the defendant was a condition precedent: Grey v. Fryer (a). We are also entitled to maintain the verdict on the sixth issue: judgment of Parke, B., in Doe d. Dalton v. Jones (b). Pennefather (with him Lynch), contra. The plaintiff, being a guardian, was aware of the purpose for which the premises were taken. At the time of the lease, the premises were in a most dilapidated condition. No alterations were made, except such as were necessary for the use of the premises in the purpose for which they were taken. Stavers v. Curling (c) ; Pordage v. Cole (d); Young v. Mannix (e); Doe v. Jones (f). As to the offer of the rent, we attended with the keys, and offered POWER v. POOR-LAW M. T. 1854. the rent; and the amendment and reservation of the CHIEF BARON Exchequer. put any question of tender out of the case.-[RICHARDS, B. The case was this the defendants offered to give up the premises and pay the rent; the plaintiff said "No; I will not take up the premises." The defendant then refused to pay the rent. The question therefore is, was the plaintiff justified by the terms of the lease to refuse the possession?]-That is, we insisted that the premises were in the state in which we were bound to give them up. COMMISSIONERS. Murphy, in reply. There was no payment of the rent, and no unconditional tender, which was necessary. PENNEFATHER, B. The question in this case is whether, in consequence of what took place between the parties in and previous to the 1st of November 1852, the lease was not determined on that day?—[states the facts]. It appears that the premises had been unoccupied previous to this lease. It was executed after reciting the purpose (and this is of great importance) for which the premises were to be used. There is the usual covenant to pay the rent, and a clause enabling the lessees to determine the lease by the service of a year's notice, on payment of all rent due, and performance of the covenants. The notice was served in due time. On the 1st of November 1852, the defendants gave directions to their clerk to pay the rent and surrender the premises, and they gave him a cheque for £160, the rent due. The clerk goes to the plaintiff, and he thinks right to examine the premises. The clerk tells him he is come to pay the rent and give up possession. The plaintiff is not bound to accept the possession unless the rent is paid or tendered, or if the premises are out of repair, contrary to the covenant in the lease. On the other hand, if the premises are in repair, according to the terms of the contract, then the plaintiff has no right to refuse the possession. The plaintiff examines the premises, and he alleges that they are in a state of dilapidation, and refuses to accept the possession. Now, what is the transaction between the plaintiff and the clerk of the defendants? There is no question but that the clerk went to pay the money. During his conference with the plaintiff, he changes the cheque, and gets bank notes. The plaintiff, however, says he will not take the possession. There are two things to be donepayment made, and possession taken up. This is not like the common case of payment or tender of a sum of money due; something is to be done on each side. The plaintiff has no right to incumber his acceptance of the rent with a condition not warranted by the lease. He says he will not take up the possession he therefore refuses to receive the money; he insists that the premises shall be restored to their former state, and he tenders a list of dilapidations, insisting that the defendants shall remain liable to the rent until these be made good. If the payment were then made by their clerk, would it not be evidence against the Commissioners that the demand of the plaintiff was consented to by their agent? I look upon this, not as a condition annexed to the payment by the clerk, but as a repudiation by him of a condition annexed to the payment by the plaintiff, which he had a right to make. This leads to the consideration, whether the state of the premises justified the plaintiff in annexing a condition to his acceptance of their surrender. It appears that the premises were contracted for to be used as a workhouse, and therefore, every alteration necessary for the accommodation of the paupers was warranted by the contract. Is it to be said that the kiln was not to be taken away, if the whole space occupied by it in the yard was necessary for the accommodation of the paupers? or that the garden was not to be placed in a proper state for their recreation and exercise, if necessary? As to the issues in this case, I am sorry to have to repeat that the settling of issues by a Judge, who cannot be acquainted with the merits of the case, often tends to an entire frustration of justice. If the parties cannot, under the new system, put on the record the real question to be tried, it is vain to expect that the Judge in every case can. The fourth issue in this case is, whether the defendants removed a certain kiln upon the premises? The issue M. T. 1854. POWER v. POOR-LAW COMMIS SIONERS. POWER บ. POOR-LAW SIONERS. M. T. 1854. does not go to raise the question whether the removal was conExchequer. trary to the true intent and meaning of the instrument, and therefore the finding on that issue is immaterial-not submitting the true point for investigation, having no regard to the use for which COMMIS- the entire premises were taken. This issue could not decide any thing; and it is reported to us that the finding on this led the CHIEF BARON to direct the jury on the sixth issue. It is impossible, therefore, that the verdict can stand. We think that, on the sixth issue, the finding must be changed into one for the defendants, and therefore that the verdict generally must be changed into one for the defendants. We think the money was substantially offered to the plaintiff, and that a condition to its acceptance was unwarrantably annexed by him; that the refusal by him to take up the possession of the premises was not warranted by the circumstances. RICHARDS, B., and GREENE, B., concurred.* *PIGOT, C. B., was absent. |