WHITE v. CORBETT. 1859. Feb. 25. [697] *698 ] c. 16, which did not contain the provision which is to be found in stat. 12 & 13 Vict. c. 106, s. 178. On this consideration, this Court desired that the present case might be reargued. But these doubts have been resolved by the case of Boyd v. Robins (1), decided in this Court last Term. That case is an authority against the defendant. There is therefore no need for a further argument, and our judgment must be for the plaintiff. Judgment of Queen's Bench affirmed. IN THE QUEEN'S BENCH. BISHOP v. TRUSTEES OF BEDFORD CHARITY. (1 El. & El. 697-713; S. C. 28 L. J. Q. B. 215; 5 Jur. N. S. 488; 7 W. R. 345.) Defendants, owners of a house and premises, demised them to M. for thirty years, from Christmas, 1851, at a rent payable quarterly, the lease containing a covenant by M. to repair, and a proviso for re-entry in case of non-observance of covenants by M., or of the rent being in arrear at any time for more than fifteen days. M., down to March, 1856, occupied the first floor of the house himself, and let out the rest of it to separate weekly lodgers. In front of the house was an area covered with an iron grating, and in the area was a tank of water, all forming part of the premises let with the house to M. M. did not let the area to any of the weekly lodgers, but they each had an easement over it for the purpose of drawing water from the tank. In March, 1856, M. let the first floor to T., as a weekly lodger, with the same easement over the area as the other lodgers had. M. then ceased to reside on the premises, and, in July, 1856, became insolvent, and took the benefit of the Insolvent Act, 1 & 2 Vict. c. 110; two quarters' rent (for Lady Day and Midsummer, 1856) being then, and down to the time this action was brought, in arrear and unpaid by him to defendants. M. was discharged by the Insolvent Court on 30th July, 1856, having given up the lease to the official assignee. Defendants opposed his discharge. On 12th July, 1856, defendants gave notice to the weekly lodgers to pay rent in future to defendants instead of to M. Two of the lodgers paid rent to defendants accordingly before 4th August, 1856. On that day plaintiff sustained an injury by falling through the grating into the area. On 7th August, 1856, T. received a notice from the inspector of nuisances for the district to repair the grating. T. handed the notice to defendants, who immediately repaired the grating at their own sole expense. In November, 1856, defendants obtained an order from the Insolvent Court for delivery to them of the lease, the official assignee having repudiated it; and it was accordingly delivered to them. It was admitted that plaintiff had sustained severe injury from the accident, and that it was caused by the negligence of some one in not keeping the grating in repair: Held, by Lord CAMPBELL, Ch. J. and HILL, J., that upon these facts there was evidence to go to the jury that defendants were responsible to the plaintiff for this negligence. Held, by WIGHTMAN, J. and ERLE, J., that there was no such evidence to go to the jury. Judgment of WIGHTMAN, J. and ERLE, J. affirmed in the Exchequer Chamber; where held, further, that a lease made to a person who afterwards seeks the benefit of the Insolvent Act, 1 & 2 Vict. c. 110, remains vested in him till either it is taken to by the assignees, or given up to the landlord. THE declaration alleged that, before and at the time of the injury to plaintiff thereinafter mentioned, *defendants were (1) 5 C. B. N. S. 597; see 116 R. R. 787. possessed of a certain messuage, area, cellar and premises, with the appurtenances, situate at No. 23, Bedford Street, which said messuage was near to a certain common and public footway there, and the said area or cellar of the said messunge was near to and under the said public footway, and was covered and protected with and by an iron grating, which it was the duty of defendants at all times to keep in good and sufficient order and repair, so that persons passing along the said footway might not be in danger of falling into the said area; yet defendants, well knowing the premises, and whilst they were so in possession of the said messuage, area, cellar and premises, with the appurtenances, to wit on 4th August, 1856, wrongfully permitted the said grating to be and continue in such bad repair that plaintiff, who was then lawfully passing along the said footway, then fell into the area or cellar, and thereby sustained severe injury. Pleas. 1. Not guilty. Issue thereon. 2. That defendants were not, at the time &c., possessed of the messuage, area, cellar and premises mentioned in the declaration. Issue thereon. At the trial, before Lord Campbell, Ch. J., at the sittings in London after Trinity Term, 1858, the defendants did not dispute that the plaintiff, a child between five and six years old, had sustained severe injury from falling through the grating into the area upon the day in question, and that the accident was caused by the neglect of some one in not keeping the grating in repair; but it was contended that there was no evidence to go to the *jury to show that the defendants were responsible for this neglect, for that the facts showed that they were neither in possession of the grating, nor bound to keep it in repair, at the time of the accident. The facts appeared to be as follows. The defendants were the owners of the house, area, cellar and premises, No. 23, Bedford Street, of which the grating and area formed part. On 1st April, 1852, they granted a lease of this house and premises to one Murton, for a term of thirty years from Christmas Day, 1851, at the rent of fifty guineas a year, payable quarterly; the lease containing a covenant by Murton to repair during the term, and a proviso for re-entry by the defendants for non-observance of covenants by Murton, or if the rent should at any time. during the term be in arrear for fifteen days after it became payable. Murton, the lessee, down to March, 1856, occupied the first floor of the house himself, and sub-let the rest of it to separate weekly lodgers, giving each of them liberty to take water from a tank in the area, and to make use of the area in order to do so; but not giving them, or any of them, exclu BISHOP v. TRUSTEES OF BEDFORD [ *699 ] BISHOP v. TRUSTEES CHARITY. sive possession of the area or of any part of it. In March, 1856, Murton let the first floor likewise to a weekly lodger OF BEDFORD named Travers, and went himself to reside elsewhere, Travers having the same right as the other lodgers to the use of the area for drawing water from the tank. In July, 1856, Murton, who had not paid the defendants either the quarter's rent due at Lady Day, 1856, or that due at the following Midsummer, both of which were still unpaid at the time this action was brought, took the benefit of the Insolvent Act, 1 & 2 Vict. c. 110. He was discharged, on the 30th of that month, by order of the Insolvent Court, having previously given up the *lease of the house in question to the official assignee. The defendants were the only creditors who opposed his discharge. About 12th July, 1856, the defendants, by their agent, gave notice to the weekly lodgers occupying the house under Murton to pay rent in future to the defendants instead of to Murton. Two of these lodgers complied with this notice, and had paid rent, to the defendants' collectors before 4th August, 1856, the day on which the accident happened. Travers was one of them. On 7th August, 1856, after the accident had happened, he was served with a notice from the inspector of nuisances for the Holborn district, of which the following is a copy. [700] [701] "BOARD OF WORKS FOR THE HOLBORN DISTRICT, "1st August, 1856, "To Mr. Travers, of 23, Bedford Street, Bedford Row, or whom else it may concern. Pursuant to the directions of the Act of Parliament passed in the 59th year of the reign of King George the Third, intituled 'An Act for the better paving, improving and regulating the streets of the Metropolis, and preventing nuisances and obstructions therein,' and of the Act of Parliament passed in the 18th and 19th years of the reign of Queen Victoria, intituled An Act for the better local management of the Metropolis,' I do hereby require you immediately to cause the stone curb belonging to the area grating at the front of your house to be repaired, and not to suffer any more danger to the public there in future; and, if you neglect or refuse so to do, it will be my duty to proceed against you for the offence as the above Acts direct, without further notice. (Signed) "L. D. PRINCE, "Inspector of Nuisances for the above district." Travers immediately handed this notice to the defendants' agent, and the grating was then immediately repaired by the defendants at their own sole expense. On 11th November, 1856, the defendants obtained from the Insolvent Court an order for the delivery up to them of the lease which they had granted to Murton, the official assignee having repudiated it; and, on 14th November, it was delivered up to them. The jury found a verdict for the plaintiff, with 175l. damages, the learned Judge giving leave to the defendants to move that that verdict should be set aside, and a verdict entered for the defendants, or that a nonsuit should be entered instead thereof. Knowles, in last Michaelmas Term, obtained a rule calling upon the plaintiff to "show cause why the verdict obtained in this cause should not be set aside and a verdict entered for the defendants, or why a nonsuit should not be entered instead thereof, on the grounds that the evidence did not show the defendants to be occupiers of the premises in which the plaintiff received injury; and that the fact of their being owners and landlords did not make them liable; and that in the meantime proceedings be stayed." Digby Seymour, in the same Term (1), showed cause: First; there was evidence to go to the jury that the defendants, at the time that the accident happened to the plaintiff, were in the possession and occupation of the area and grating, and therefore bound to keep the grating in proper repair. The notice of 12th July, 1856, which, before the accident happened, they had given to the weekly lodgers occupying the house under Murton, requiring them in future to pay rent to the defendants instead of to Murton, was evidence of an exercise by the defendants of the power of re-entry reserved to them in the lease. Murton was then two quarters' rent in arrear, and was hopelessly insolvent: the defendants, therefore, had every reason for putting an end to the term by re-entry; and their intention must be taken into account. (WIGHTMAN, J.: The power of re-entry could not be well exercised without a formal demand of rent and the other usual formalities. LORD CAMPBELL, Ch. J.: Even if the power was not well exercised, the defendants, if in fact in possession of the area and grating, may be liable; though I do not say that they are so.) From Jones v. Carter (2) it may be collected that any act by a lessor, unequivocally indicating his intention to avoid a lease which he has the option to make void (and here the giving of the notice of 12th July to the lodgers was such an act) (1) Before Lord Campbell, Ch. J., (2) 71 R. R. 800 (15 M. & W. 718). Wightman, Erle and Hill, JJ. BISHOP ፖ. TRUSTEES CHARITY. [ *703 ] operates as a final election by him to determine the term, which is thenceforth at an end. In Jones v. Carter (1), the lessor, it OF BEDFORD is true, had brought ejectment against the lessee: but the judgment of the COURT favours the contention that any other unequivocal act by a lessor, amounting to a re-entry, is sufficient. At all events, the defendants' notice, acted upon by the lodgers, coupled with the fact that no subsequent rent was ever received from Murton by the defendants, constituted evidence of a surrender to the defendants by operation of law, according to the doctrine recognized in Nickells v. Atherstone (2). But, secondly, even if the term was not put an end to before the accident, the defendants were still liable, as owners and *landlords, for the continuance of a nuisance, such as this dangerous grating, on their premises: Thompson v. Gibson (3). Moreover, their act in repairing the grating after the accident, in compliance with the notice served by the inspector of nuisances on Travers, is evidence that, before the accident, the duty of repairing it lay upon them. If so, they are responsible for its defective condition, even though it be held that they were not in possession or occupation of the premises: Leslie v. Pounds (4). If the owner of a house is bound to repair it, he, and not the occupier, is liable to an action for an injury sustained by a stranger from the want of repair: Payne v. Rogers (5). [ *704 ] (HILL, J.: Surely the more reasonable doctrine would be that the occupier should be responsible under such circumstances as the present.) Keane, contrà: There was no evidence to go to the jury that the defendants were responsible. First, the lease to Murton was a good and valid subsisting lease down to the time when it was delivered to the defendants out of the Insolvent Court, namely, down to the November after the accident. The defendants had done no act equivalent to a re-entry. Their notice to the lodgers to pay rent to them in future was given merely for their own protection as landlords; but Murton also remained liable to them for the rent subsequently accruing. As to Jones v. Carter (1), the act of the lessors here falls very short of the unequivocal act of the lessor in that case, who was rightly held to have put an end to the relation of landlord and tenant by bringing an ejectment for a forfeiture against the lessee. *Here the lessors had, down to the time of the accident, done (1) 71 R. R. 800 (15 M. & W. 718). (4) 13 R. R. 718 (4 Taunt. 649). (5) 3 R. R. 415 (2 H. Bl. 349). |