all drew the attention of the House and her receiving this intimation, wrote to Sir Fitzroy Majesty's government "to the facts stated Kelly, reminding him of his having been for so long a period retained by the petitioner as in the petition as they contained allega- counsel for his clients, and of his having so tions which, if sustained, were in his mind repeatedly advised on their case; but he recalculated to destroy confidence both be- ceived back for answer from Sir Fitzroy Kelly, tween and in professional men." He then that he had no choice in the matter to which briefly went through the statements con- the petitioner's letter referred; that the crown tained in the petition. And he concluded had required his services, and that he was by observing, that "these matters were of bound by his oath of office to obey.' so serious a nature that he trusted there "That the petitioner then addressed a letter to the solicitor to the Admiralty, who is and would be no objection to the petition being has been from the commencement of these printed.' The chairman of the committee actions conducting the defence of Captain for examining petitions said, that as the Denman, and from him he received for reply, petition had been already ordered to be that having received the directions of the printed, he presumed Major Blackall's ob- Attorney-General to retain Sir Fitzroy Kelly, ject to be attained. Sir George Grey sug- he had not any discretion upon the subject;' gested that such being the case, Major that he had explained to the Attorney-General that Sir Fitzroy Kelly was the leading counsel Blackall should withdraw the motion. and adviser of the plaintiffs, and that on the hearing of the demurrer, (in the course of the pleadings,) Sir Fitzroy had actually appeared in court, and argued for them. Major Blackall then said, that his object being to have the petition printed, and to draw the attention of the government to the subject, he had no objection to withdraw the motion. The following are the statements in the petition. "That the petitioner is the attorney retained by Senor Don Tomas Rodriquez Buron, by Senor Don Domingo Fernandez Martinez, and by Senor Don Angel Iiminez respectively, merchants of Havanna, in the island of Cuba, in three several actions brought by these parties respectively, and now pending in her Majesty's Court of Exchequer of Pleas at Westminster, against the Honourable Captain Joseph Denman, of her Majesty's navy, and to one of which actions, viz. that of Buron v. Denman, the attention of the House has been very recently directed. "That the petitioner, impressed with the great importance it was to his clients that Sir Fitzroy Kelly should continue their counsel, and impressed also with a sense of the great hardship that his clients were made to sustain by being deprived of their leading advocate, memorialised the Lords of the Admiralty, who are defending the actions through their solicitor, but their lordships have refused to forego the services of Sir Fitzroy Kelly. "That the petitioner respectfully begs to call the attention of the House to the fact, that neither the crown nor the department of the Admiralty are parties to these actions, and that the actions (as appears by the titles of them) were instituted, and have been always conducted against Captain Denman individually. And the petitioner therefore humbly submitted that the interference of the Lords of the Admiralty is gratuitous and uncalled for. "That these actions were commenced on the 3rd day of August, 1842, and in the month of "That the petitioner respectfully submitted November, 1842, the petitioner retained the serto the consideration of the House the hardship vices of Mr., now Sir Fitzroy Kelly, Knight, as counsel for the plaintiff in these three several and injustice which his clients are made to actions. And that from the period aforesaid suffer by the conduct of the Lords of the Adup to the month of May last, (with the excep- miralty, and of the chief law officer of the tion of the short interval during which Sir crown, and which not only strikes at the root Fitzroy Kelly held the office of her Majesty's of the independence of the bar, but is calcu Solicitor General,) the petitioner acted under lated to destroy all professional confidence, whilst the advice of Sir Fitzroy Kelly as such counsel it is a flagrant act of tyranny inflicted on the petitioner's clients." in all the stages of these actions at law. "That by means of having advised the petitioner on the affairs of his clients, Sir Fitzroy Kelly has become most intimately acquainted with the case of the petitioner's clients, Buron,' 'Martinez,' and ' liminez.' "That in the month of October last it was intimated to the petitioner that Sir Fitzroy Kelly, although still holding the retainers of the petitioner on behalf of his clients, could no longer act as their counsel, in consequence of the Attorney-General having required his services as counsel for the defendant, Captain Denman. "That the petitioner, immediately on his Where proceedings are conducted in the Queen's name, and the defendant requires the aid of a queen's counsel, it is the ordinary practice to apply for a license, and we never heard of an instance in which it was refused. Here no license is necessary, because her Majesty is no party to the proceedings; but inasmuch as Captain Denman was merely acting, as he conscientiously believed, in the discharge of his duty as a British officer, the Lords of the Admiralty very properly take upon them the burthen amounted in law to an eviction, and that the plaintiff ought to be nonsuited. of the defence. But this ought not to pre- tiff by his clerk, with the plaintiff's authority, judice the right of the plaintiffs to have the services continued of the counsel who had His Honour overruled the objection. accepted their retainer, -to whom they had confided their case in all its points of Cooper then entered upon the defence on the merits, and contended, that this being an action strength or weakness. An attorney-at-law for use and occupation, as now admitted by would not only not be permitted to act the plaintiff, such being brought under the against a former client, but if he ventured statute 11 Geo. 2, c. 19, s. 14, it was a proceedto do so, would be struck off the roll for his ambi-dexterity. Is that rule of morals right which binds the attorney and lets loose the barrister? LAW OF LANDLORD AND TENANT. MARYLEBONE COUNTY COURT. (Before Andrew Amos, Esq.) Reynolds v. Lucking, 16 & 18 Oct. 1847. RENT NOT RECOVERABLE WHERE NUISANCE ALLOWED TO EXIST. THIS was an action to recover 127. 10s., the amount of one quarter's rent alleged to be due at Midsummer last for a dwelling-house at Notting Hill, of which the defendant had been the tenant; the particulars claimed the amount to be due for rent of the premises. Messrs. Roy & Co. appeared for the plaintiff, Mr. W. B, Cooper for the defendant. Cooper took a preliminary objection to the form of action, arguing that unless the plaintiff was prepared to prove a written contract no action for rent could be maintained, and the plaintiff must be nonsuited; the action should have been for use and occupation; he, however, wished the case to be argued upon the merits, and if the plaintiff would state whether he proceeded for the rent of the premises or for its use and occupation, he would not press the objection, but allow the case to proceed. His Honour having directed the plaintiff to make his election, the plaintiff's attorney said he proceeded for the use and occupation. ing of an equitable nature to recover reasonable satisfaction for the use by the defendant of the premises of the plaintiff; and that it was therefore competent for the defendant to show that he had no beneficial occupation by reason of the existence of a nuisance which the landlord was bound to remove, and which existed at the time of the entry by the defendant, and with the landlord's knowledge; that the house being infested and so overrun with fleas as to render the place unfit for habitation; this amounted to such a nuisance as would bar the plaintiff's right of recovering. Smith v. Marrable, 1 C. & Marsh, 479; Cowie v. Goodwin, 9 C. & P. 378. The evidence of the defendant in support of this view of the case proved that he and his wife were unable to remain in their bed at night from the existence and annoyance of fleas. That they had destroyed from 20 to 30 on their persons on going to bed; and that, beyond this, they appeared in great numbers throughout the house, and even presented themselves at the dinner-table in the day time. Defendant also proved that he and his wife were so bitten by these penetrating and diminutive destroyers of rest at night as to render them unable to attend to their duties in the day-time. Roy and Co., in reply, insisted that the only contract the law implied was a contract for quiet enjoyment, and not for beneficial occupation-that Smith v. Marrable had been overruled by Hart v. Windsor, 12 Mee. & W. 68, which clearly laid down the principle that there is no implied warranty attached by law to a demise of land or premises, that they are fit for any particular purpose. For the plaintiff, who is a builder, it was proved by his clerk, and elicited on cross- Cooper observed upon this case and argued, examination, that defendant entered into pos- that Hart v. Windsor was distinguishable from session on the 20th of March last, under a the present case, inasmuch as there the defendparol agreement, at the rent of 50l. per annum, ant held under a written contract, and must be but that after he had occupied the house for presumed, at the time of entering into such about a week, he quitted without notice, and on contract, to have had full knowledge of every the 31st of the same month he called on the circumstance, and might by stipulation in the plaintiff with the key, complaining that the contract, or at least he had it in his power to place was so infested by fleas he could not re- do so, provide against being compelled to conside in it; that plaintiff refused to accept the tinue in possession, or remain liable for the key. The witness admitted he had, with the rent of a house infested like the present; whilst plaintiff's authority, repeatedly entered the the present defendant had no such advantage, house to see if the fixtures were safe. In this the contract, or rather letting, being simply by state of circumstances, the plaintiff, after one parol; and he was therefore remitted back and quarter's rent had become due at Mid-protected by the general principle of law, viz. summer, brought his action, as before stated, that he so became the tenant of this property urging that the defendant was not justified in under an implied warranty that the house was thus quitting the premises, and that he was habitable, free from the nuisance complained still liable for the past and accruing rent. of; and he was therefore entitled to have a Upon this evidence beneficial occupation. Cooper submitted that the entry of the plain His Honour said, he at first considered the Law of Landlord and Tenant. case cited for the plaintiff as conclusive against the defendant, but he had paid attention and was struck with the distinction between the cases taken by Mr. Cooper. He wished to have all the cases handed to him, which he should read, and would give his judgment on Monday. His Honour, on this day (18th), addressing Mr. Cooper, said, he had considered this case, and read the reports of the several cases cited, and he had, after mature consideration, come to the conclusion that the distinction taken by Mr. Cooper between the case of Hart v. Windsor and the present was correct. He should therefore give Judgment for the defendant. 235 M. & R. 112; Cowie v. Goodwin, suprà.) And so, if the premises were uninhabitable in consequence of being infested by bugs, or in consequence of any other nuisance which it was the landlord's duty to remove, the action could be maintained. Smith v. Marrable, supra; Browne's Actions at Law, 494. The case of Smith v. Marrable (reported also 7 Jurist.) came before the Court of Exchequer in Hilary Term, 1843, on a motion for a new trial, on the ground of misdirection. It was an action of assumpsit for use and occupation plea, non-assumpsit. At the trial before Lord Abinger, C. B., in Middlesex, at the sittings after Michaelmas Term, 1842, it appeared the action was brought to recover rent of a furnished house at Brighton, which had been taken by Sir Thomas Marrable under a written agreement, which did not contain any warranty with respect to the condition of the premises; the defendant and his family took possession, and on the following day Lady Marrable complained to the plaintiff that the house was infested with bugs, and from this cause left within a week, offering to pay a week's rent. The Lord Chief Baron told the jury, "that in point of law every house must be taken to be let upon the implied condition that there was nothing about it so noxious as to render it uninhabitable," upon which the jury found for the defendant. On refusing the motion for a new trial, Parke. B., held the objection of the Chief Baron to be right, observing, that "if the demised premises are incumbered with a nuisance, that no person can reasonably be expected to live in them, the tenant is at liberty to throw them up ;" and the Chief Baron also said, "He entertained no doubt on the subject, and thought the defendant was fully justified in leaving the premises as he did." This case was followed and confirmed in the following As a general rule, use and occupation lies Michaelmas Term by Sutton v. Temple, 12 M. not only for the enjoyment of corporeal, but | & W., when the same judges, with Gurney also of incorporeal hereditaments, although the and Rolfe, BB., held precisely the same letting be by parol; (Bird v. Higginson, 4 N. doctrine. This is an important case of Landlord and Tenant, illustrating the duty of a landlord to remove a nuisance or forfeit his remedy against the tenant for rent; and also as distinguishing the wide difference between the law in cases where the tenant holds by written contract or by parol. The statute 11 Geo. 2, c. 10, s. 14, cited above, is expressed to have been passed in order to obviate difficulties that occurred in recovery of rent where the demises were not by deed, and enacts, that where the agreement is not by deed the landlord shall recover a reasonable satisfaction for the lands, tenements, or hereditaments held or occupied by the defendants in an action on the case for the use and occupation of what was so held or enjoyed; and if in evidence on the trial of such action any parol demise or any agreement (not being by deed) wherein a certain rent was reserved, shall appear, the plaintiff in such action shall not therefore be nonsuited, but may make use thereof as an evidence of the quantum of the damages to be recovered." This & M. 515;) but there must be an occupation One year only after Smith v. Marrable came by the defendant; actual or personal occupa- Hart v. Windsor, 12 M. & W. 68, which ention is not required, a constructive occupation tirely overruled all the previous cases. being sufficient. (Bull v. Sibbs, 8 T. R. 327.) was a case also of a written contract, under The action is founded upon the relation of which the defendant became the tenant of a landlord and tenant, either express or implied, house and garden-ground, which he quitted and unless such a relationship can be implied, it will not lie; it will not lie to try the title to law, and where the landlord has treated the tenant as a trespasser, he cannot maintain this action. (6 A. & E. 854; S. C. 2 C. & M. 495; 1 T. R. 378; 5 Bing. 410.) without notice, alleging that he could not reasonably inhabit, or have any beneficial use or occupation therefrom, by reason of the same being greatly infested, swarmed, and overrun with various stinking and nasty insects called bugs." 66 Until the case of Hart v. Windsor, suprà, it The plaintiff having brought an action for had been settled law, that a landlord who had the rent, which was tried before Rolfe, B. at demised by deed or writing, allowing the pre- the sittings in Hilary Term, 1844, when the mises to become or remain in such a state as defendant's plea was fully proved, and a verto render them uninhabitable, lost his remedy diet found for the defendant. Upon a subseagainst the tenant for rent; as where the tenant quent day in the same term a rule for judgment had no beneficial occupation, being compelled for the plaintiff, non obstante veredicto, was to leave the premises through the default of the landlord; this was a good defence to an action by the landlord to recover rent. (Edwards v. Etherington, R. & M. 268; Collins v. Barrow, obtained, on the ground that the facts pleaded were no answer to the action. After a very lengthened and elaborate argument on showing cause, Parke, B., on a subsequent day, delivered 236 The Law Students or Articled Clerks' Society.-Notes of the Week. The meeting shall be devoted, alternately, to the discussion of points purely legal, and of questions of jurisprudence and historical law. At the close of each meeting, one member or more shall be appointed, in rotation, to introduce the subject or subjects to be discussed at the next meeting; and thereupon each shall select a subject from the list of questions approved by the committee. the judgment of the court, in which he entirely vacation, and such other times as may be overruled Smith v. Marrable, observing that appointed. the court were all of opinion" that there is no contract, still less a condition, implied by law in the demise of real property that it is fit for the purpose for which it is let. It is much better to let the parties in every case protect their interest themselves by proper stipulations," and the rule was therefore made absolute. Although in this judgment Smith v. Marrable is avoided as much as possible, because the facts were not quite identical, it is clear the whole tenor and effect of the judgment is to overrule it and the previous cases. The present case of Reynolds v. Lucking, however, steers clear of all the others referred to in this note, and cited above, the contracts being by parol, and seems to have been very properly distinguished and decided by the learned Judge. J. C. W. THE LAW STUDENTS', OR ARTICLED WE have been requested to suggest the Rules and Regulations for governing a Pro vincial Society of Law Students, established for the purpose of discussing moot points. The following is the substance (with some slight alterations) of the Rules of the Law Students' Society which for many years has been allowed the use of a room at the Incorporated Law Society. This legal debating society is very judiciously conducted, and has been productive of much benefit to its members. Every member appointed to introduce a subject shall come prepared with a statement, written or verbal, of his opinion and views with respect to it; and if he neglect to do so, or to appoint a substitute, he shall pay a fine of No topics connected with religion or party politics shall be introduced. No alteration shall be made in the rules without the consent of two-thirds of the members present at a meeting especially convened for the purpose. All other questions shall be decided by a simple majority. We shall take an early opportunity of making some observations on the subjects of discussion, and the mode of conducting the debate. NOTES OF THE WEEK. COMMENCEMENT OF HILARY TERM. ALL the Courts of Law and Equity will commence their Sittings on Tuesday next, being the first day of Hilary Term, at ten o'clock, the reception which the Lord Chancellor gives to the judges, Queen's counsel, &c., which prevented the opening of the courts until the after This Society is established for the purpose of promoting the improvement of its members in professional knowledge by means of conversa-noon, being by a recent regulation confined to tions and discussions on legal and jurisprudential subjects. The Society shall consist of gentlemen who are serving and who have served under articles of clerkship. Gentlemen desirous of admission are to be nominated, at a meeting, by two members of the Society, and shall be balloted for at the next meeting. Each member shall pay mission; and a subscription of on ad the first days of Easter and Michaelmas Terms, which immediately follow the circuits. We understand there is still some doubt, whether the Lord Chancellor's state of health is such as to enable him to take his seat in the Court of Chancery on the first day of the ensuing term. THE IRISH SEALS. The health of the Lord Chancellor of Ire The officers of the Society shall be elected yearly, and shall consist of a president, vice- land is understood to be gradually improving, president, a secretary, treasurer, and a com- but as there is no reason to expect that his mittee composed of the president, vice-presi- Lordship would be able, within a short period, dent, secretary, and six other members. to resume the performance of his official duties, the Seals have been put in commission. The president or vice-president, or in their absence, one of the committee, shall preside. The committee shall have the general management of the Society's affairs, and shall select subjects for discussion. The meeting shall be held every evening at EFFECT OF FINAL ORDER IN INSOLVENCY. Mr. Gurdon, the judge of the Essex County o'clock, except during the long Court, decided in a case of Wylie v. Nash, on Law Appointments.-Superior Courts: Rolls-Vice-Chancellor. the 16th December, that a final order under the stat. 7 & 8 Vict. c. 96, is a bar to a plaint entered in the County Court, for the recovery of a debt mentioned in the insolvent's schedule. Mr. Parry, Q. C., the judge of the Oxford County Court, on the 20th December, in a case of Bartlett v. Blick, determined that a final order under the 7 & 8 Vict. did not protect the insolvent from having an order made against him under the County Courts Act, for a debt contained in his schedule. LAW APPOINTMENTS. 237 HER Majesty has been pleased to appoint Robert Russell, Esq., Barrister-at-Law, to be Registrar of the Court of Chancery, and Clerk of the Patents for the Island of Jamaica. James Watson Sheriff, Esq., Barrister-at-Law, Her Majesty has also been pleased to appoint to be coroner for the Island of Antigua. The Queen has been pleased to direct Letters Patent to be passed under the Great Seal granting the office and place of AdvocateGeneral or Judge Martial of her Majesty's Forces to William Goodenough Hayter, Esq., Barrister-at-Law. RECENT DECISIONS IN THE SUPERIOR COURTS, Rolls Court. Hughes v. Wheeler. Dec. 8, 1847. SUBSTITUTED SERVICE, ORDER OF. The court will not make an order for substituted service where there is no good reason to suppose that by this means notice will really reach the party in respect of whom the order is made; but the order is sought only as a means of making the decree formally correct. Mr. F. White moved for an order for substituted service against a defendant, who was one of two trustees, and being himself a solicitor had put in his own answer, mentioning no place of residence, and had since become bankrupt and gone abroad, leaving no trace of the place he was gone to. Lord Langdale refused to make the order. He observed, that the object of substituting service was to make a provision under which notice would in fact reach the party; but here' the substitution proposed would be a mockery.' It was not suggested that by its means the defendant would really give a knowledge of the proceedings against him. It was, however, a case in which he might probably be able to make a decree in the absence of the party. Where a railway company gave an insufficient notice to one of four tenants in common in fee of intention to take lands, and a bond, the condition of which was that the money should be paid to the four, or some or one of their heirs, executors, administrators, or assigns: Held, that the bond was informal, and an injunction granted to restrain the company from entering on the land. IN this case Robert H. Daubney, Mary H. Daubney, J. H. Daubney, and William H. Daubney, were entitled as tenants in common in fee to certain pieces of land which were required by the railway company. On the 18th received a notice in writing together with an September, 1847, plaintiff, Robert H. Daubney, of a bond. The notice was as attested follows:-Take notice that the original bond, |