*SWEET, Appellant, SEAGER, Respondent. May 4.

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A. held premises under a building lease, with a covenant to pay, bear, and discharge "all such parliamentary, parochial, and county, district, and occasional levies, rates, assessments, taxes, charges, impositions, contributions, burthens, duties, and services whatsoever as during the term should be taxed, assessed, or imposed upon or in respect of the premises, or any part thereof." He granted an underlease (at a rack-rent) to B., the latter covenanting "that the several covenants, conditions, and agreements contained in the original lease on the lessee's part to be performed and observed (except the covenants to pay rent and to insure), should during the continuance of the demise be performed and observed by him :”— Held, that B. was liable for the expense of drainage works done upon the premises under the authority of the Metropolis Local Management Act, 1855, 18 & 19 Vict. c. 120.

THIS was an appeal against a decision of the judge of the county court of Kent holden at Greenwich, in an action of replevin in which the defendant (the respondent) avowed for 227. 108., a quarter's rent due to him from the plaintiff (the appellant) at Christmas, 1856. The following case was stated (and settled by the judge) for the opinion of this court:

By an indenture of lease made the 27th of November, 1829, between Michael Raven, of the first part, Catherine Vaughan Austin, of the second part, and the defendant (William Seager), of the third part,it is witnessed, that, in consideration of the expense which the said W. Seager had been at in erecting the messuage and buildings thereinafter demised, and also of the rents and covenants thereinafter reserved and contained, the said M. Raven demised and leased, and the said C. V. Austin demised, leased, and confirmed, a piece of ground situate in the parish of Charlton, in the county of Kent, therein described, with the said messuage and buildings, unto the said W. Seager, his executors, administrators, and assigns, from the 29th of September then last for the term of 59 years, wanting fifteen days, yielding and paying therefor the yearly rent of 201., without any deduction whatsoever in respect of any taxes, rates, assessments, impositions, or any other matter or thing whatsoever then already or thereafter to be taxed, assessed, and imposed upon or in respect of the said premises, or any part thereof, by authority of *parliament or [*120 otherwise howsoever: And the said indenture of lease contained a covenant by the said W. Seager that he, his executors, administrators, and assigns, would quarterly during the said term pay unto the said M. Raven, his executors, administrators, and assigns, the said quarterly rent of 207. on the several days and times thereinbefore appointed for payment thereof, without any deduction, according to the reservation thereof therein contained, and would in like manner pay, bear, and discharge all such parliamentary, parochial, and county, district, and occasional levies, rates, assessments, taxes, charges, impositions, contributions, burthens, duties, and services whatsoever, as during the said term should be taxed, assessed, or imposed upon or in respect of the said premises thereby demised, or any part thereof, and would during the

said term insure and keep insured the said messuage and buildings from loss or damage by fire, for the sum of 1000l., for a term not less than seven years.

By an indenture of underlease made on the 17th of February, 1846, between the defendant, W. Seager, of the one part, and the plaintiff, G. Sweet, of the other part, after reciting the above-stated lease, the defendant demised the said piece of land, messuage, buildings, and premises comprised in the above-stated lease, to the plaintiff, his executors, administrators, and assigns, from the 25th of December, 1845, for all the residue of the said term of 59 years (wanting fifteen days), except the last day of the said term, at the rent of 851. for the first year of the said term, and the yearly rent of 901. for the second and subsequent years of the said term, payable quarterly, and a proportional part at the expiration of the term: and by the same indenture of underlease the plaintiff covenanted with the defendant that the rent thereby reserved should be paid at the times aforesaid, and that the several covenants, conditions, and *agreements *121] contained in the above-recited indenture of lease on the lessee's part to be performed and observed (except the covenant to pay the rent thereby reserved, and the covenant to keep the said premises insured from fire) should during the continuance of that demise be performed and observed by the plaintiff, his executors, administrators, or assigns: And by the same indenture of lease it is provided that the plaintiff, his executors, administrators, or assigns, might make void that demise, and the term thereby granted, at the expiration of the first three, seven, fourteen, or twenty-one years thereof, by giving to the defendant, his executors, administrators, or assigns, six months' notice in writing to that effect, or at any time while the said messuage and premises, or any. part thereof, should be untenantable by reason of damage from fire, having continued so untenantable for nine calendar months, by giving one week's notice in writing to that effect.

No such notice has been given.

By the Metropolitan Local Management Act, 1855 (18 & 19 Vict. c. 120), s. 31, and sched. B., part 2, the parish of Charlton and other districts are united into a district called "The Plumpstead District," and placed under the management of a board of works for the purposes of the act.

By s. 73 of the said act, the district board of works is empowered to require the owner of any house, whether built before or after the commencement of the act, situate within one hundred feet of a sewer of sufficient size on a lower level, and found not to be drained by a sufficient drain communicating with some sewer, to make a drain, with proper branches, from the house to the sewer, with such other works as may appear requisite to the board or their officers; and, if the owner of such house or building neglect or refuse so to do, the district board

of works is authorized to cause the same to be *constructed and made, and to recover the expenses incurred thereby from such owner, in manner thereinafter provided.

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By s. 217 of the act it is enacted that it shall be lawful for any vestry or district board to require the payment of any costs or expenses which the owner of any premises may be liable to pay under the act, from any person who then or at any time thereafter occupies such premises; and the owner shall allow every such occupier to deduct all sums of money which he so pays, or which are levied by distress, out of the rent from time to time becoming due in respect of the said premises, as if the same had been actually paid to such owner as part of such rent.

By s. 219 of the said act it is enacted that nothing therein contained shall be taken to affect any contract made or to be made between any owner and occupier of any house, building, or other property whereof it is or may be agreed that the occupier shall pay and discharge all rates, dues, and sums of money payable in respect of such house, building, or other property, or to affect any contract whatever between landlord and tenant.

By s. 250 it is enacted, that, in the construction of the act, the word "owner" shall (except for a purpose not material to this case) mean the person for the time being receiving the rack-rent of the land or premises in respect of which the said word is used, whether on his own. account or as agent or trustee for any other person, or who would so receive the same if such land or premises were let at a rack-rent. The act contains other provisions which it might be material to refer to.

The house comprised in the stated lease and underlease is within one hundred feet of a public sewer of sufficient size on a lower level, and, until the execution of the works hereinafter mentioned, was not sufficiently drained into any sewer.

Some time in the month of June, 1856, a good and *sufficient [*123 notice under the said act, by the surveyor to the said board of works, addressed to the plaintiff (the appellant) as owner and occupier of the said house, was left at the said house, requiring him to execute certain drainage works therein specified from the said house into the said sewer, being works authorized by the said act to be done, and giving him notice, that, if the works were not performed, the said board. would cause them to be done, and recover the expenses according to the said statute.

Other notices under the said act, to the same effect, were left at the said house in the month of September, 1856. All the said notices were sent by the plaintiff to the defendant shortly after they were so left at the said house, and before the works hereinafter mentioned were commenced.

The drainage works required by the said notices to be constructed were not done by the plaintiff or by the defendant, but were afterwards

executed by a person employed by the said board of works, under the inspection of their surveyor, in the middle of October, 1856; and, on the 16th of December, 1856, the plaintiff was required by the said board to pay, and did pay to the said board, the sum of 271. 168. 8d., being the amount of the expenses paid by the board for the said works. On the 25th of December, 1856, the sum of 221. 10s. became due from the plaintiff to the defendant, for a quarter's rent for the said house and premises, reserved by the said underlease. The plaintiff claimed to retain the said sum of 227. 108. in part satisfaction of the said sum of 271. 168. 8d. paid to the said board of works.

On the 22d of January, 1857, the defendant distrained the goods of the plaintiff on the said demised premises for the said sum of 227. 108.; and on the same day this action of replevin was brought in the county court by the plaintiff for such distress.

On the 26th of February, 1857, the cause was tried *before *124] the judge of the county court, and adjourned until the 12th of March, 1857, on which latter day the said judge gave judgment for the defendant, on the ground that the plaintiff, by the terms of his lease, was bound to bear and discharge the costs of executing the said drainage works, and was not entitled to deduct the amount from the rent reserved to the defendant.

The question for the opinion of the court, was, whether the plaintiff was entitled to deduct the said sum of 271. 16s. 8d. from the rent reserved by the said underlease to the defendant. If the court should be of opinion that the plaintiff was entitled to make the said deduction, then the judgment for the defendant was to be set aside, and judgment given for the plaintiff, with 408. damages, or a new trial granted: otherwise, the said judgment for the defendant was to stand.

Milward, for the appellant.(a)—The defendant is the person who answers the description of "owner" given by the interpretation clause, s. 250,-the person receiving the rack-rent. [M. Chambers, Q. C., assented.] Then, as such owner, he is the person upon whom is by s. 73 cast the duty of making the drain communicating with the sewer. That section enacts, that, "if any house or building, whether built before or after the commencement of this act, situate within any such parish or district, be found not to be drained by a sufficient *125] drain communicating with some sewer, and emptying itself into the same, to the satisfaction of the vestry or board of such parish or district, and if a sewer of sufficient size be within one hundred feet of

(a) The points marked for argument on the part of the appellant, were,—

"That he was entitled to deduct the expense of the drainage works in question from the rent due to the defendant; that the defendant was owner of the premises within the 217th and 250th sections of the Metropolis Local Management Act, 1855, 18 & 19 Vict. c. 120; and that the expense of the drainage works in question was not such a levy, rate, assessment, tax, charge, imposition, contribution burthen, duty, or service, as the plaintiff by his covenant was bound to pay, bear, or discharge."

any part of such house or building, on a lower level than such house or building, it shall be lawful for the vestry or board, at their discretion, by notice in writing, to require the owner of such house or building forthwith, or within such reasonable time as may be appointed by the vestry or board, to construct and make from such house or building into any such sewer a covered drain, and such branches thereto, of such materials, of such size, at such level, and with such fall as shall be adequate for the drainage of such house or building, and its several floors or stories, and also of its areas, water-closets, privies, and offices (if any), and for conveying the soil, drainage, and wash therefrom into the said sewer, and to provide fit and proper paved or impermeable sloped surfaces for conveying surface water thereto, and fit and proper sinks, and fit and proper syphoned or otherwise trapped inlets and outlets for hindering stench therefrom, and fit and proper water supply and water-supplying pipes, cisterns, and apparatus for scouring the same, and for causing the same to convey away the soil, and fit and proper sand traps, expanding inlets, and other apparatus for hindering the entry of improper substances therein, and all other such fit and proper works and arrangements as may appear to the vestry or board, or to their officers, requisite to secure the safe and proper working of the said drain, and to prevent the same from obstructing or otherwise injuring or impeding the action of the sewer to which it leads; and it shall be lawful for the said vestry or board to cause the said works to be inspected while in progress, and from time to time during their execution to order such reasonable alterations therein, *additions [*126 thereto, and abandonment of part or parts thereof, as may to the vestry or board or their officers appear, on the fuller knowledge afforded by the opening of the ground, requisite to secure the complete and perfect working of such works; and, if the owner of such house or building neglect or refuse, during twenty-eight days after the said notice has been delivered to such owner, or left at such house or building, to begin to construct such drain and other works aforesaid, or any of them, or thereafter fail to carry them on and complete them with all reasonable despatch, it shall be lawful for the vestry or board to cause the same to be constructed and made, and to recover the expenses to be incurred thereby from the owner in the manner hereinafter provided." The mode of recovering the expenses is pointed out by s. 217, viz. by distress on the occupier, to be reimbursed out of the rent. In the absence of any special provision, the owner would be the person liable to pay. And, suppose the owner here had paid the money, he would have had no claim over against any other person. Then comes s. 219, which provides that "nothing in the act contained shall be taken to affect any contract made or to be made between any owner and occupier of any house, building, or other property whereof it is or may be agreed that the occupier shall pay and discharge all rates, dues, and