Bennett against Womack
| Jurisdiction | England & Wales |
| Judgment Date | 25 January 1828 |
| Date | 25 January 1828 |
| Court | Court of the King's Bench |
English Reports Citation: 108 E.R. 856
IN THE COURT OF KING'S BENCH.
S. C. 1 Man. & Ry. 624; 6 L. J. K. B. O. S. 175: at Nisi Prius, 3 Car. & P. 96. Followed, Parish v. Sleeman, 1860, 1 De G. F. & J. 333. See Midgley v. Smith, [1893] W. N. 120.
[627] bennett against womack. Friday, January 25th, 1828. A party contracted for an assignment of a lease of a public-house, which was described as holden at a certain net rent, upon usual and common covenants. The lease contained a covenant by the tenant to pay land-tax, sewers-rate, and all other taxes, and a proviso for re-entry, if any business but that of a victualler should be carried on in the house, and it was proved that a considerable majority of public-house leases contained such a proviso: Held, that the covenant to pay land-tax, &c. was a common covenant in a lease, reserving a net rent; and that the proviso for re-entry must, with reference to a lease of a public-house, also be considered usual and common. [S. C. 1 Man. & Ey. 624; 6 L. J. K. B. O. S. 175: at Nisi Prius, 3 Car. & P. 96. Followed, Parish v. Sleeman, 1860, 1 De G. F. & J. 333. See Midgley v. Smith, [1893] W. N. 120.] *# ! le/zo.M-^a. Assumpsit on an agreement to purchase the lease of a public-house, which in the agreement was described as held by the plaintiff at a certain net annual rent under 7B.&C. 628. BENNETT V. WOMAOK 857 common and usual covenants. Plea, the general issue. At the trial before Lord Tenterden C.J. at the London sittings after last Michaelmas term, it appeared that the defendant had entered into the agreement set out in the declaration, but the lease contained a covenant by the tenant to pay the land-tax, sewers-rate, and all taxes, besides the rent specified, and a proviso for re-entry by the landlord if any business but that of a victualler should be carried on in the house; and these the defendant's counsel contended were not common and usual covenants, wherefore he was not bound to take the lease. The Lord Chief Justice thought that the stipulation for a net annual rent answered the objection as to the land-tax and sewers-rate; and evidence being given that the proviso for re-entry was inserted in at least six out of ten leases of public-houses, his Lordship thought it must, with reference to the lease in question, be considered as common and usual, and directed the jury to find a verdict for the plaintiff, giving the defendant leave to move to enter a nonsuit. F. Kelly now moved...
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