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COURT OF EXCHEQUER CHAMBER. to say the term and space of twenty years, and so

KEAN 0. STRONG.Feb. 2, 3, and May 30. on at the end or expiration of every term, he the Coram Blackburne, C. J, Doherty, C. J. Pigot, and assigns, should and would make out a new lease,

said John Maxwell, his executors, administrators, C. B., Pennefather, B., Torrens, J., Crampton, J, or renew the then present or any future lease which Perrin, J., Richards, B.

, Jackson, J., Moore, J. should be granted of the said last mentioned preAbsente Ball, J. and Lefroy, B.

mises, for the term and space of twenty years, and Covenant, construction ofEvidence-Bill of

so on to be continued." The declaration then Exceptions.

stated a covenant by the lessee, his executors, adWhere in a lease there are covenants for renewal and ministrators, and assigns, to pay to the lessor, his quiet enjoyment (with intervening covenants), the executors, administrators, and assigns, a triennial first unlimited, the latter qualified, and the cove- fine of £1 2s. 9d. during that demise; the entry of nants are not inconsistent with each other, the the lessee ; the assignment on the 17th April, 1820, general covenant is independent and uncontrolled by the lessee, of his whole interest to William by the qualified covenant, and was held to be rightly Craig, in as beneficial a manner as he held it him. set forth in the declaration as an unqualified cove- self, and subject to all the covenants of the original nant.

lease of 1800 ; that William Craig, being so posHeld that evidence of the value of a lease was ad sessed of the said term, and of the said right of missible--though not strictly applicable to the issue renewal, died in the month of April, 1820; that the raised--for the purpose of guiding the jury in their plaintiff

' Jane Kean, before her marriage, took out estimate the question being wholly one of dama- administration, and became thereby possessed of the ges.-Richards, B. dissentiente.

residue of the said term of twenty years; and her Held that where the renewal, if granted, would be marriage with the plaintiff in October, 1820; the

valueless, the grantor having no interest from death of John Maxwell the lessee, on the 20th of which to renew, that the judge should have di- January, 1820; and that the term of twenty years rected the jury to find for nominal damages.

granted by the said John Maxwell, expired on the Held that exceptions to different expressions in the 1st of November, 1840. The regular payment of judge's charge seriatim, without stating clearly the triennial fines by Joseph and William Craig, what the judge did tell the jury, or what the de- and by said Jane before her marriage, and by her fendant required him to tell them, was not a pro- husband and her since her marriage to the said per mode of framing a bill of exceptions; and, John Maxwell in his life-time, and to his executors per Blackburne, C. J.

, that on this ground alone since his death, and the demand of a renewal by the exceptions should be overruled.**

the plaintiff, and the refusal of the defendants. "This was error from the judgment of the Court of In the lease, after some intervening covenants, there Queen's Bench, on exceptions to the ruling of the was a qualified covenant for quiet enjoyment as folLord Chief Baron, on the trial at Armagh Summer lows_. And the said John Maxwell does covenant, Assizes, 1847. The action was in covenant by the promise, and agree to and with the said Joseph assignee of lessee against the personal representa-Craig, his executors, administrators, and assigns, that tives of the lessor. The declaration contained four he and they paying the hereby reserved rent and recounts upon the same covenant. Pleas, non est fac-ceiver's fees and duties, and performing the con. tum to the lease of 1800, and also to the assignment ditions hereinbefore mentioned and expressed shall of it in 1820, and plene administravit. There were and may quietly and peaceably hold, and occupy, other pleas which were not now before the court, and enjoy the hereby granted premises with their being held bad upon demurrer-(reported 5 I. L. R. and every of their appurtenances, except as before 540.) The second count (which alone was before excepted, without the let, hindrance, or molestation the court) stated that John Maxwell, on the 1st of him the said John Maxwell, or any other person day of November, in the year 1800, demised to deriving by, or from, or under him.” Joseph Craig, his executors, administrators, and The plaintiff gave in evidence the lease of 1800, assigns, certain lands with the appurtenances, ex and the assignment in 1820; endorsed on the lease cept as therein excepted, to hold with the appur- of 1800 was the following memorandum:tenances except as aforesaid, to the said Joseph « Received from the within-named Joseph Craig Craig his executors, administrators, and assigns, the sum of £950 sterling, as a fine for the within from the said Ist day of November, 1800, for the mentioned lands of Manooney, given under my hand term of twenty years, at a certain rent, “and the this first day of November, 1800. said John Maxwell did in and by the said last (present) mentioned indenture for himself, his executors, ad. The following receipt was also given in evidence, ministrators, and assigns, covenant, promise and subject to objection:agree to and with the said Joseph Craig, his ex • Received from Mr. Joseph Craig on account of ecutors, administrators, and assigns, that at the a purchase of a part of Manooney farm, Nine hunexpiration of the demise then granted, he, the said dred and thirteen pounds, fifteen shillings, sterling. John Maxwell, his executors, administrators, and Dublin, Sep. 20, 1800. assigns, would renew the then present lease, or any

By procuration from John Maxwell. future lease which should be granted of the said

John MAXWELL. last mentioned premises, by adding thereto such

EDWD. ARMSTRONG. number of years as in that present demise, that is

£913 15 0

Now received, 36 50 The difference of opinion in the Court was rather on

£950 0 0-in full, the result of the evidence, than on te legal propositions here stated.

Dec. 22, 1800.


Evidence of the payment of the rent and re- and told, and directed the said jury that it did not newal fines to John Maxwell and his executors, amount to a contract that John Maxwell would have under the lease of 1800 was also given. Mr. such an interest as would enable him, at the expiraH. L. Prentice, a witness for the plaintiff, was asked tion of the lease, to grant sach renewal; and the what was the value of such a farm held under a learned Judge read to the said jury the covenant for College lease, taking into consideration the risk on quiet enjoyment contained in the said lease, and told the one side that the College might not renew, and them that the latter covenant was such that if an the chance on the other side that they would? The eviction by title paramount, that is to say, by any question was objected to, but admitted by the Lord person claiming and having title not derived through Chief Baron. There was no evidence of any demand or under John Maxwell, took place during the term of renewal

, nor of any tender for execution by the of the said lease, or after its expiration, and after a plaintiff of any deed of renewal, all of which matters renewal of it damages could not be recovered for were subject of exception by the defendant. The such an eviction upon the last mentioned covenant, defendant gave evidence that the lands in question or upon a similar covenant contained in such renewal. were a part of the College estate, and proved a lease And the learned

Judge told the jury that as no da. of them to Robert Maxwell for twenty years from mages could, in such case, be recovered on the core. the 30th of March, 1754, and renewals thereof tonant for quiet enjoyment, then, if no valid renewal 1769. On the 22nd of February, 1774, the lease could have been granted by the executors of Johan was renewed to Henry Maxwell , to whom the renew- Maxwell

, he would, without giving them a positive als were granted till 1816, after which period they direction upon the amount of damages, which was were made to Maxwell Close till 1824, the last re- a matter entirely for the jury, advise them to give newal proved. The payment of rent under the lease nominal damages only; bat the learned judge fur. was proved, the practice of the College to renew, ther told and directed the jury, that a material ques and the will of Robert Maxwell, the first lessee, tion for the consideration of said jory upon the said whereby he devised his interest to Henry Maxwell, evidence was, whether, at the time of the execution and that probate thereof was granted to John Max- of the said lease of the 1st day of November, 1800, well, one of the executors; that Henry Maxwell in by the said John Maxwell, there was in fact such an 1816 devised his interest to the Reverend Samuel estate or interest in the said premises vested in the Close, who, on the 31st of December, 1816, devised said John Maxwell as would have enabled him or his interest to Maxwell Close; that Henry Maxwell his executors to grant a valid renewal of the said had possession under the will of Robert Maxwell, lease at the expiration thereof, whereupon the said and that John Maxwell, who made the lease of 1800 counsel for the said defendant did then and there to Joseph Craig, paid a rent of £19 10s. to Maxwell except to the said opinion and directions to the said Close for the premises demised by John Maxwell in jury of the said learned Judge as well because he the lease of 1800; that Maxwell Close had given refused so to inform and direct the said jury as last John Maxwell notice to quit, and recovered posses- aforesaid prayed by the said counsel for the defension of these premises under a judgment in ejectment dant, as because he

so informed and directed the said in Hilary Term, 1822, and continued in possession jury as last aforesaid, and they were by him informed till he sold the land to the defendant Strong. Evi- and directed as to a material question as aforesaid dence was given of a search for the habere under for them upon said evidence. And the said learned which Maxwell Close obtained possession, but that Judge further held and so informed the said jury it could not be found. There was no evidence of that the said lease of the Ist day of November, 1800, rent being paid to any person by J. Maxwell prior if unexplained and in no way affected by other evito 1818. The defendant admitted assets. The dence, would import on the face of it that the said charge of the Lord Chief Baron was thus stated in John Maxwell had an estate in said premises co-exthe bill of exceptions:

tensive with that which he professed to grant thereby, And the said counsel for the said defendant did and that there was a distinct intimation given by the then and there insist that the said learned Judge said lease to the lessee thereof that he, the said John ought to direct the said jury that inasmuch as it so Maxwell, then had a lease under the said College, appeared in evidence as aforesaid that all the estate of the said premises mentioned in the said lease of and interest which the said John Maxwell in his life the 1st day of November, 1800. And the said learned time had or the said defendants his executors as Judge further informed the said jury that if the said aforesaid as such executors had in the said premises John Maxwell was, at the time of the execution of demised by the said lease of the 1st day of Novem- said lease of the 1st day of November, 1800, the ber, 1800, were evicted as aforesaid by the said owner of a lease of the said premises from the said Maxwell Close, having such title paramount thereto, College, then it was clear from the practice disclosed as aforesaid, the said plaintiff was not entitled to to the said jury by the said witness, Joshua Nann, a verdict for more than nominal damages; but the that there might have been an interest in the said said learned judge then and there refused so to inform John Maxwell or the defendants, his executors, out . and direct the said jury, and on the contrary thereof, of which a renewal of the said lease of the Ist day of after stating to the jury the issues upon which they November, 1800, could have been granted to the were to find, and the evidence relating to the said present plaintiffs, and that though the legal interest issues, told the said jury that they were also to in such lease under the said College, if any, was not assess the damages sustained by reason of the breach vested in the said John Maxwell, yet if any party of covenant stated upon the record, and that the was interested therein as a trustee for him, an equi

. question of damages was one entirely for the jury; table estate might have been granted to the said and the learned Judge read for the said jury the plaintiffs by an instrument purporting to be a recovenant for renewal contained in the lease of 1800, newal. And the said learned Judge further held and

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so informed the said jury that in his opinion the state- thereby demised, at the expiration of the said lease ment in the said lease of the 1st day of November, of the 1st day of Noveinber, 1800. But the said 1800, of a lease to the said John Maxwell from the learned judge refused so to direct and inform the said College with the other evidence in the case, said jury, and the said counsel for the said defenraised a question for the said jury, whether such an dant did then and there except to the said opinion instrument did not exist as would have enabled the and ruling of the said learned judge, because he redefendants in 1820 to execute a renewal to the plain- fused to direct and inform the said jury as last aforetiff of the said premises. And the said learned judge said prayed by the said counsel for the said defenafter calling the attention of the jury to the evidence dant, but left the question in that behalf to the said given by the defendant, tending to procure eviction jury as aforesaid. And the said counsel for the said by title paramount, told the jury there was on the defendant did then and there insist before the said other side evidence for their consideration that John learned judge that he ought, and they did then and Maxwell might have had such title as aforesaid at there pray him to inform and direct the said jury the time of the execution of said lease of the 1st day upon the whole of the said evidence given on the of November, 1800, and the said learned judge part of the said plaintiff and the said defendant as called the attention of the jury to the evidence from aforesaid, that if the said jury believed the said eviwhich it would appear that the said John Maxwell dence they should either find a verdict for the said remained in the enjoyment of the said demised pre- defendant or a verdict for the said plaintiff for nomises till shortly before the date of the said eject-minal damages only; but the said learned judge rement brought by the said Maxwell Close as afore-fused so to inform and direct the said jury, and on said, and that the said Johạ Maxwell received the the contrary thereof held and affirmed and told the rents of the said preinises and a triennial fine there- said jury that if they believed the whole of the said out, and the learned judge told the jury that there evidence they might find a verdict for the said plainwas on the record an admission that those rents and tiff for substantial damages, but the amount thereof, fines were paid, and called their attention to the evi- and whether the same should be substantial or nomidence of the finding of the lease of 1800 among the nal was a matter entirely for them. papers of the defendant, and to the fact that the The jury found a verdict for the plaintiff for lease under which John Maxwell held was not found £1000. The plaintiff elected take their verdict among said papers or produced at the trial. And upon the second count alone. the said learned judge left it to the said jury to con The postea stated," that a special jury to try sider whether such continuance as aforesaid in the the said issues so joined between the said parties enjoyment of the said demised premises by the said pursuant to the statute, &c. (certain jurors, naming Jolin Maxwell was consistent with the supposition them) came and are duly elected and sworn upon that there was no such title in the said John Max. that jury, and because the residue of the jurors of well under the said College as aforesaid. But the the same jury did not appear, therefore one other learned judge told the jury that they should also take person of those standing round in court, by the into consideration the evidence of the said Maxwell sheriff of the said eounty, at the request of said John Close, and the whole of the evidence given by the Kean, &c. and by command of the said justices, is defendant, that the said John Maxwell was only newly set down, and was sworn upon that jury, and tenant at will of the said premises to the said Max. the said juror so newly set down, together with said well Close, and thereupon the counsel for the said jurors so sworn and impanelled, being duly elected, defendant did then and there, on the part of the tried and sworn to declare the truth, find, &c.said defendant, except to the said opinion and direc Mr. Holmes and Mr. Napier, Q.C., Mr. Ormsby tion to the said jury of the said learned judge, and with them. The only covenant stated in the declato what he so told the said jury; inasmuch as he ration* is that for renewal; that for quiet enjoyment thereby left matters to the said jury for their consi- appeared on the production of the lease at the trial. deration and decision not legally arising upon the The construction of the first covenant depends upon said issues and evidence aforesaid to consider and that of the latter, which is limited to the acts of J. decide; but which, if proper to be considered at all Maxwell and those claiming under him. There upon said issues and evidence, it belonged to the are two classes of exceptions, to the evidence and learned judge exclusively to consider and decide, the charge: the first is to the admission of the receipt and which he ought to have considered and decided for £950, it not being mentioned in the deed, nor himself upon the legal construction of the said lease material to the issues on the record. The second of the Ist day of November, 1800, and the legal and third exceptions are to the reception of evidence effect of the other evidence so given as aforesaid as as to the value of this farm-lease, and go to the conapplicable, if applicable at all, to the construction, struction of the covenant; the fourth is to the charge effect, and legal operation of the said lease, and to of the learned judge. [That the whole instrument was have directed the said jury accordingly. And the to be taken into consideration they cited and commentcounsel for the said defendant did then and there ed upon Broughton v. Conway, (Dyer, 240, S. C; insist before the said learned judge that he ought, Moore, 58;) Browning v. Wright, (2 B. & P. 13;) and they did then and there pray him to inform and Foord v. Wilson, (8 Taun. 545, s. C. 2 B.; Moore, direct the said jury that there was no legal evidence 592;) Mends v. Marshall, (1 Brod. & Bing. 319; of any such estate or interest in the said demised s. C. 3 B. Moore, 703;) Brown v. Brown, (1 Keb. premises being vested in the said John Maxwell at 234;) Merrill v. Frame, (4 Taun. 329;) Deering the time he executed the said lease of the 1st day of November, 1800, or at any time afterwards, as could The covenant for quiet enjoyment was stated in the have enabled him, or the defendant as his execu- third count, on which the plaintiffs allowed the defendants tors, to grant a valid renewal of the said lands to have judgment.--Reporter.


v. Farrington, (1 Mod. 113;) Line v. Stephenson, v. Stephenson, (6 Scott, 447,) and Stannard v. Für (6 Scott, 447; S. C. 5 Bing. N. C. 183; s. C. in bes, (6 Ad. & El. 572.), were cases of an ireplied error; 7 Scott, 69, per Lord Denman ;) Stannard covenant being controlled by an express covenant v. Forbes, (6 Ad. & El. 572.)] The fifth and sixth The same principle will be found laid down in exceptions are in effect that where either expressly Platt on Cov.; Howell v. Richards, (11 East. 643;) or impliedly acts were covenanted to be done on Wigg v. Lutterworth, (13 East. 138; 548,3;) Goins both sides , neither can maintain an action for the forth v. Griffith, (1 Saund. 60;) Smith v. Compton

, breach without averring that he has done his part, (3 B. & Ald. 189;) Hesse v. Stevenson, (3 Bos.& or his willingness to perform what he has not done. Pul. 565;) Barton v. Fitzgerald, (15 East. 530. [Pennefather, B.- This argument does not appear It was not necessary to show any eviction by some to be open to you under the plea of non est factum.] one claiming under John Maxwell

, nor of loss to the Edmonds v. Groves, (2 M. & W. 642, per Alderson, plaintiffs. The receipt was legally in evidence

, as B.;) Smith v. Martin, (9 M. & W. 304.) [Penne- suming it to be connected with the lease, and was father, B.- In both cases an inference was attempted clearly admissible as an admission of the value by to be drawn from an admission on the record.] the parties at the time the lease was made. The Freeman v. Mayor of Waterford, (1 Sch. & Lef.451.) question to Mr. Prentice was also legitimate on the The seventh exception is that the learned judge question of value. The lease was in evidenice, and should not have left it to the jury to say whether was stated to be derived from the College, and the John Maxwell might not have had some title con witness proved that such leases were marketable in trary to that established by the evidence of the de- Armagh; it was, therefore, a legitimate question as fendants, to be in the Close family. The learned to the value of the clause of a renewal. There was judge should not have told the jury that there might no necessity for tendering a renewal as contended be some title or beneficial interest in John Maxwell; for. Steer v. Shalecroft, (12 Mod. 401 ;) Hicks v. if there was we admit the verdict was right. There Goats, (Cro. Jac. 391.) Non-direction is not a is no evidence that John Maxwell had any estate ground for a bill of exceptions. M-Alphine v. out of which he could have given the plaintiffs that Mangnall, (3 Man. & Gr. & Sc. 517.) (Pennewhich they required, and if not they cannot com- father, B.- If a plaintiff call upon a judge to plain of not getting that which would be valueless. "direct in a particular manner, and he refuses to Lastly, there was a mis-trial. It appears from the do so, he may except to the non-direction.] Bulpostea that there not being a sufficient number of ler, N. P. 316; Bridgman v. Holt

, (Show, P.C. special jurors present, a tales-man was taken de cir. 115.) When the judge leaves to the jury the evicumstantibus ; the twelfth juror or tales-man was dence on both sides, and gives them no direction or improperly chosen; this is a statutable jury, and the law, a bill of exceptions will not lie. Philips must be chosen pursuant to the statute, [35 7.8, c. v. Chichester, (Sir T. Jones, 146;) (S. C. Sir T. 6; 10 Car. 1, sess. 2, c. 13, s. 3]; Peeters v. Opie, Ray. 404.) A portion of one part of the charge (2 Saund. 349, n. 1;) 6 Geo. 4, c. 51. By the 28th or another is not to be made the matter of exsect. of the 3 & 4 W. 4, c. 91, the tales-man should ception to the entire charge. Newcastle v. Brisbe taken from the common jury, and the officer tow, (4 B. & Al. 280.) We contend that the should have taken and put them into the ballot-box. question of damages is wholly irrespective of the [Perrin, J.-He is bound to take them from the question as to whether John Maxwell had power circumstantibus ; if possible they should have a qua- to renew. [Blackburne, C. J.-I do not underlification, if not, whoever is present. Pennefather, stand that the judge's charge is to be objected to B.~Would not a consent cure the defect? if so the word by word and letter by letter.] De Medina averment is, that the plaintiff consenting, the jury v. Nurman, (9 M. & W. 820.) As to the mis-trial

; was taken de circumstantibus, and the defendant the cases cited do not apply to that before the court. went on to trial.] Finesv. Norton, (Cro. Car. 279;) All the precedents are general, and it must be now Crowe v. Edwards, (Hob. 5;) Jenk. Cent. 89, case intended that the sheriff did his duty. Car.ade.rult

. 73; Gardner's case, (5 Rep. 36 b.;) Holt v. Mellow. The court being divided in opinion, now decroft and King v. Perry, (5 T. R. 453;) Fermor livered their judgments seriatim. v. Dorrington, (Cro. EI. 222;) Hassett v. Payne, May 30.- MOORE,J.-This case comes before us (Cro. El. 256 n.;) King v. Tremearne, (5 B. & c. upon a writ of error by the defendant in the court 254;) Drumgoole v. Home, (1 Hud. & B. 212;) below, where the question came on a bill of excepFarmer v. Mountfort, (8 M. & W. 266.)

tions to the ruling of my Lord Chief Baron. The Mr. T. O'Hagan, Q.C. and Mr. H. H. Joy, Q.C., Court of Queen's Bench gave judgment for the plainwith them Mr. T'omb, Q. C.- The covenant is ab- tiff below, the defendant here. The learned judge solute and unrestricted, and the court cannot enter having read the pleadings.) Some of the exceptions tain a question as to damages only. Bac. Ah., tit. in this case, were taken during the progress of the Damages; Hixt v. Goats, (2 Roll. Ab. 703;) Lowe case, and at its conclusion. It was contended v. Piers, (4 Burr. 2229.) These covenants are inde- that the covenant for renewal was qualified by that pendent of and unrestricted by the other. There are for quiet enjoyment; there was no controversy, several intervening covenants, therefore the express but that the plaintiffs below were entitled to a ver. covenant is not controlled by the other. The cases dict on the plea of non est factum, and that of plene cited on the other side are not applicable; Brown- administravit. The only question—sabject to a ing v. Wright, (2 B. & P. 13,) is in our favour. question of variance, on the plea of non est facum, In Mends v. Marshall

, (1 Brod. & Bing. 319,) the to be tried—was that of damages, and of the princwenant was immediately connected with the pre- ciple upon which they were to be assessed. The c:ding one, and Foord v. Wilson, (2 B. Moore, lease and assignment being proved, the receipt of 592,) was also a case of connected covenants. Line the purchase money was offered in evidence. The

eceipt bears date after the execution of the lease, restricted by the qualified covenant for quiet enjoyand was signed by John Maxwell the lessor. The ment; a large covenant in one instrument, may be emorandum on the lease states that the consider- restricted by another covenant in the same instrution for the lease was £950. That memorandum ment. Where two covenants are inconsistent, one as not sigued by John Maxwell, though the re- should give way to the other ; the courts have said eipt was. £913, a portion of this consideration, that a general covenant is to be qualified by a limited as paid before the execution of the lease, the re-covenant, and if a party were to declare as upon a

ainder after. The defendant objected to the ad general covenant, that would not be the true conlissibility of the receipt; but my Lord Chief Baron struction ; but in the case now before the court as of opinion it ought to be received. Now, I there is no inconsistency. The covenant to grant onfess I am not able to understand the ground a renewal, is to do an act, and the qualified covepon which it was objected to; it was offered only nant is not inconsistent with it; there is nothing o the question of damages, which was the sole to restrict the act—no qualification of the covenant uestion in controversy. Could the jury possibly declared on ; the covenant is an absolute one; and ave any better criterion of value than that which there is no variance between the covenant declared he lessor and lessee had agreed to put upon it at on, and the covenant in the lease. I am of opinion he time of the grant ? It is clear, from the receipt, that there is nothing to restrict this unqualified hat £950 was given and taken for the interest.covenant—that it is absolute and declared upon Therefore, it appears to me that a receipt signed according to its true legal construction; and this y the lessor was clearly admissible against his therefore no ground of objection ; and so far as I epresentatives, to shew the amount of damages. have considered, the exception I have referred to, Therefore, I am of opinion that this exception the court fully agree in this view. The plaintiff's hould be overruled. The next objection is the case, having closed, the defendant then went into vidence of Mr. H. L. Prentice; where a question his case, and gave evidence of a lease and renewal s wholly one of opinion, it must frequently be put from the College to the Maxwell family, from 1754 ypothetically ; nothing is more common than in to 1824 ; that the defendant, in 1818, paid rent to ctions upon the warranty of horses, to ask what, Maxwell Close, in whom the interest in these Colu the opinion of the witness, would be the value of lege lands became vested. It was also proved that he horse if sound, and what, if unsound: there John Maxwell was his tenant at £19 10s. per anare many persons quite incompetent to give an num; and a notice to quit served on John Maxwell

, opinion as to the unsoundness, or otherwise quite signed by Maxwell Close ; and further, the defend. competent to speak as to the value. If the ques- ants gave evidence of an ejectment on the title to ion may be put in that case, it may here also ; and recover the possession from John Maxwell of the even if the question were objectionable, it is removed premises comprised in the lease of 1800, which by the subsequent part of the case, which shews ejectment was served upon the defendants as clearly a course of renewal on the part of the Col-executors of John Maxwell. The defendants ege. The next objection is, that there was no evi- having closed their case then called upon the learned lence of an eviction by John Maxwell. I am of judge to tell the jury that the plaintiffs were not en. opinion no such evidence was necessary. Suppos- titled to more than nominal damages. It then be. ng the plaintiff not to be disturbed, that would comes material to ascertain what my Lord Chief e no answer to an action of covenant, for not Baron told the jury upon the question of damages. granting a renewal. The fourth exception is, that There are but two points of view, in which this he judge refused to direct the jury, that as there question could be submitted to the jury: First, that vas no notice on the part of the lessee requir-John Maxwell, or his executors, had a power to grant ng the lessor to renew, that they should find for a valid renewal. Secondly, that he had no such he defendant. It is stated in the declaration, power—and the charge shews that the Chief Baron hat a demand of renewal was made and refused. did leave it in both these views. Mr. Napier in the n any event there was no obligation to tender any argument, put this question upon its right foundauch renewal. The plain meaning of the words are, tion. The question is not as to the preponderance hat a renewal should be granted. I do not think of evidence, but whether there was any evidence his is any ground for exception. The next excep- to go to the jury that John Maxwell had such a ion is, that the learned judge being called upon to title as he could renew from. If there were none lirect the jury that the plaintiff was in no event en- such, the Lord Chief Baron was wrong; if there itled to more than nominal damages, declined to was such evidence, he was right, and bound to leave lo so, as there was nothing to shew any eviction by it so to the jury. The question is one entirely on itle paramount, or of loss sustained by the refusal the weight of evidence, and comes before us on the o renew. For anything that appeared, John Max- exception to the charge of the learned Chief Baron. vell might have had in him a sufficient title; there. The defendants say there was not any evidence ore, I am of opinion that this objection must fail. from which the jury could infer that John Maxwell t was then contended that there was a substantial had the power to grant a renewal. I think there ariance under the issue raised by the plea of non is such evidence; it is to be collected from the lease st factum ; and that on this plea the learned judge stated in the exception, that John Maxwell had a bould have directed the jury to find for the de- lease from the College. Now supposing that lease endant. That though this covenant for renewal was to other members of the Maxwell family, it

as apparently unqualified, yet it was controlled might have been in trust for John Maxwell, or be y the qualified covenant for quiet enjoyment, and assigned to him, and be called his lease from the hould have been declared upon as a qualified cove-1 College ; and where a man grants a lease, and ant. It is clear the covenant for renewal may be states that he has a lease from the College, that is

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