1898 EMMERTON บ. SMITH. Hood, J. (b.) Whether the defendants as between themselves and the plaintiff are liable by virtue of the provisions of the said indenture of lease to bear the said costs and expenses and to indemnify the plaintiff against the payment thereof. The parties have agreed that in the event of either of the said questions being answered in the affirmative judgment shall be entered for the plaintiff in this action for the said amount of 2251. with Supreme Court costs to be taxed and that in the event of neither of the said questions being answered in the affirmative judgment shall be entered for the defendants in this action with Supreme Court costs to be taxed." Cussen for the plaintiff-The lease is a long one, and the tenant has agreed to pay charges of this kind. In Budd v. Marshall (a) the same words, "bear, pay, and discharge," are used as in this lease. The condition of affairs at the time the covenant was entered into must be considered. [Mitchell The presumption is in favour of the tenant. HOOD, J. The presumption is that the tenant has not to pay anything he has not agreed to pay.] By the Melbourne and Metropolitan Board of Works Act 1890, sec. 216, and sec. 6 of the Act of 1897, the cost of making these connections remains a charge upon the property until it is paid and comes within the express words of the covenant. The fact that if the landlord had performed the work it would not have become a charge does not apply, because by Act No. 1491 it has become a charge. [HOOD, J. In that view the defendants' liability would depend upon the option of the landlord.] Sec. 114 of the Act of cases of this kind at all. 1890 does not come into operation in This is not a case of default. Brett v. Rogers (b) is in point. The first part of the decision in Hartley v. Hudson (c) meets this case, and is good law. Allum v. Dickinson (d) is distinguishable. The phrase in the covenant "in respect of the occupation thereof" should be construed (a) [1880] 5 C. P. D. 481. (c) [1879] 4 C P. D. 367. (d) [1882] 9 Q. B. D. 632. liberally. It is the intention of the parties to the lease that the tenant should pay all charges imposed upon the premises whether in respect of the landlord or the tenant. Counsel referred to Rawlins v. Briggs (e); Wilkinson v. Collyer (f). Mitchell and Weigall for the defendants-The payment in this case is not anything "imposed on the landlord or tenant in respect of the occupation thereof." Unless the tenant has, by express words, made himself liable in respect of this payment, he is not to be held liable. Allum v. Dickinson shows that as a rule a tenant will not be made liable for payments which permanently improve the capital value of the property, unless there is an express undertaking by him to become liable. If there is any ambiguity in the expression used it should be construed in his favour. These are not "taxes, rates, charges or assessments imposed, etc." There is no There is no "charge." The duty is imposed on the owner either of doing the work himself, in which case there never will be a charge in respect of the premises, or of asking the Board to do it. But that is not a charge upon the premises. The latter part of the decision in Hartley v. Hudson is merely a dictum. That case is distinguishable. The words in that case are "charged on the premises." In this case there is a duty imposed on the landlord, and, as incidental to the sum which the Board pays, there is a charge given on the premises. The charge itself is not imposed by the Act on the premises. Counsel referred to Foa on Landlord and Tenant (2nd ed.), p. 151. The duty on the landlord here is, apparently, either to do the work himself or to ask the Board to do it. The Act provides that, although his duty may be merely to give notice to the Board to do the work, the primary liability is on him. The Board is given a charge over the premises in respect of the sum which he is liable to pay them, until it is paid: Sec. 6 (8) of Act 1491. Counsel referred to Brett v. Rogers (supra), at p. 529. If the rate is payable by the owner or occupier, that, under certain circumstances, would be something imposed on the premises. If made "in respect of" the premises, that would (f) [1884] 13 Q.B.D. 1. (e) [1878] 3 C.P.D. 368. 1898 EMMERTON v. SMITH. Hood, J. 1898 EMMERTON V. SMITH. Hood, J. November 7. make a great difference: Aldridge v. Ferne (g); Tidswell v. That is not a binding authority, and the Acts here are not Cussen in reply-In Foa on Landlord and Tenant (2nd ed.), p. 153, Hartley v. Hudson is referred to without disapproval. The argument in Tidswell v. Whitworth was that the word imposed" had a wider meaning than "charged." Counsel referred to Thompson v. Lapworth (i). Cur, adv. vult. HOOD, J., read the following judgment:-This is a special case stated by consent for the determination of this Court. The dispute arises out of a lease, whereby the defendants covenanted with the plaintiff's testator to "bear pay satisfy and discharge all taxes rates charges and assessments whatsoever whether municipal parliamentary parochial or otherwise imposed or to be imposed upon the said demised premises or any part thereof or upon the landlord or tenant in respect of the occupation thereof." During the currency of the lease the Melbourne and Metropolitan Board of Works, acting under legislative sanction, gave the plaintiff a notice, with the object of having the demised premises connected with the sewerage system. The plaintiff, as he was entitled to do, submitted a plan for carrying out the connection, and requested the Board to do the work at his expense. The Board has done the work, and, by sec. 6 of Act (h) [1867] L. R. 2 C.P. 326. (g) [1886] 17 Q.B.D. 212. (i) [1868] L. R. 3 C.P. 149. No. 1491, the costs and expenses thereof are made a charge upon the property until paid. The plaintiff now contends that the provisions of this section bring the matter within the covenant. It was admitted that this point is covered by authority. In the case of Hartley v. Hudson (k), Lindley, J., held on similar legislation and a similar covenant that the tenant was bound to pay. Although two reasons are given for the judgment, one only of them applies to the present case. It was urged for the defendants here that, while the decision might be correct, yet this particular reason was erroneous. But I find that the case has been referred to without the slightest sign of disapproval on any ground in the latest text-books, and also in Budd v. Marshall (1); Allum v. Dickinson (m); and Wilkinson v. Collyer (n). Covenants of this nature have been interpreted by the Courts in a very wide sense, and the only distinction suggested in the present case is that the landlord was not in default because the money became due by him under agreement. But until payment the expenses incurred are to be a charge on the premises, and are a debt incurred by the landlord in respect thereof: See Rawlins v. Briggs (o). I cannot, therefore, see any ground for not following the English decision, and so I answer the second question in the affirmative, and direct judgment to be entered for the plaintiff for 2251. and costs. Judgment for plaintiff. Solicitors for plaintiff': J. M. Smith & Emmerton. 1898 HESLOP v. PHILLIPS. September 29, 30, November 21, 25. Promissory note-Contemporaneous oral agreement--Inconsistency-Inadmissibility of evidence-Costs. Hood, J. In an action by the indorsee of a promissory note against the indorser, evidence will not be permitted of a contemporaneous oral agreement between the parties whereby the defendant agreed to indorse the note in plaintiff's favour and the plaintiff agreed not to enforce the defendant's liability upon the note unless and until another fund had been exhausted, and then only for the balance unpaid, such an agreement being inconsistent with the terms of the written contract. Breach by the plaintiff of an oral agreement of this kind does not form ground for a cross action. Heseltine v. Simmons ([1892] 2 Q B. 547) discussed and distinguished. POINT RESERVED at the trial of the action. The facts and arguments may be sufficiently collected from the judgment. F. Gavan Duffy and J. C. Anderson for the plaintiff. Counsel referred to Leake on Contracts (1st ed.), p. 188; Erskine v. Adeane (a): Abrey v. Crux (b); Hoare v. Graham (c); Cornish v. Bank of New South Wales (d): Foster v. Jolly (e): Adams v. Wordley (f). Isaac A. Isaacs (A.G.) and Schutt for the defendant. Counsel referred to Bank of Australasia v. Ehrenfried (g): Chalmers on Bills of Exchange (5th ed.), p. 59; Lindley v. Lacy (h); Byles on Bills (10th ed.), p. 177; Bank of South Australia v. Williams (i); New London Credit Syndicate v. Neale (k); Heseltine v. Simmons (1); Clough v. Rowe (m); Morgan v. Griffiths (n); Jervis v. Berridge (0); Thompson v. Clubley (p). Duffy, in reply, referred to Wallace v. Littel (q); Mercantile |