Bowers against Nixon
| Jurisdiction | England & Wales |
| Judgment Date | 27 November 1848 |
| Date | 27 November 1848 |
| Court | Court of the Queen's Bench |
English Reports Citation: 116 E.R. 973
QUEENS BENCH
S. C. 18 L. J. Q. B. 35, 41; 13 Jur. 334.
[546] bowers against nixon. Thursday, June 15th, 1848. Covenant on an indenture of lease, reserving an annual rent, payable half yearly; and also certain annual penal rents at a specified rate, such rents, if incurred, to be payable throughout the term, on the days of payment of the ordinary rent. One of such penal rents was made payable for any land from which should be taken a third crop in any one course of tillage without seeding down the same, at the time of sowing the third crop, in a husbandlike manner, and sowing it with a prescribed quantity of proper grass seeds. The sixth breach alleged that in three successive years, 1843, 1844 and 1845, defendant took three successive craps in one course of tillage from six acres and a quarter, and did not seed down, &c., and did not sow, &c., as required by the lease; that the penal rent of 1251., being at the specified rate, was thereby incurred, and that 621. IQs, far the first half year became due on 25th March 1845. The seventh breach alleged that two subsequent half yearly portions of the same penal rent had become due on 29th September 1845 and 25th March 1846. Third plea. As to the sixth and seventh breaches, that defendant, at the time of sowing the third of the said three crops, did seed down, &c., and did sow, &c., as required. Issue fchereon. On the trial it appeared that the 25th March 1845 was about the very time for the required seeding down, &c.; the plaintiff therefore waived his claim ta the first half year's penal rent; and the defendant had a verdict as to the sixth breach. As to the seventh breach the verdict was for the plaintiff. A rule for a nonsuit on the ground of variance in the declaration was made in Easter term 1847 and refused ; and in the following vacation the plaintiff entered up judgment and issued execution. At this time the postea on the judgment roll stood thus;-" As to the issue," &c. " on the third plea, as to the breach of covenant sixthlj? within alleged, the jurors" "say that the defendant did at the time of sowing the third of the said crops " " seed down," &c., " and did sow," &c. "And, as to the issue, &c." " on the third plea, as to the breach of covenant seventhly within assigned, the jurors " " say that the defendant did not at the time of sowing the third of the said three crops" "seed down," &c., "and did not sow," &c. And the postea contained an assessment of 1251. as the damages on this breach. The defendant brought error ; atid the inconsistency of the postea with respect to the sixth and seventh breaches was assigned as a ground of error. In Hilary vacation 1848 the Court of Error, on the argument of the case, suggested that application might be made to the Judge who tried the cause to amend the postea by his notes ; and judgment was stayed to give time for such application. In the same vacation the Judge made an order for such an amendment. The postea, as amended, stood: "As to the issue," &c. "on the third plea, the jurors" " say that the defendant did not at the time/' &o. "seed down," &c., "and did not sow," &c. "And, as to the " same issue^ "so far as the same relates to the non-payment by the defendant of the sum of 621. 10s., alleged by the plaintiff afterwards to have fallen due on the 25th March 1845, the jurors" " say that the said last mentioned sum did not, nor did any part thereof, become due and payable from the defendant to the plaintiff, in manner 974 BOWERS V. NIXON 1! Q. B. H7. and form as in the said breach alleged." In the same vacation, by authority of another order, the judgment roll and transcript thereof were amended so as to be conformable to the amended poatea. Held that the amendments were made in timej and rightly, as the errors amended were mere mispriaions : the error in the postea being a raisprision in relation to the verdict; and the error in the judgment becoming a misprision as soon as the postea had been amended, and a variance appeared between the judgment and postea. [S. C. 18 L. J. Q. B. 35, 41; 13 Jur. 334.] Peacock, in last Easter term, obtained a rule to shew cause why an order of Maule J. that the postea in this cause be amended conformably to his [547] notes of the trial, and a subsequent order of Parke B. that the judgment roll and the transcript thereof be amended conformably to the amended postea, should not be respectively rescinded, and the amendments made on the said postea and judgment roll be set aside ; and why the said postea and judgment roll should not be restored to the state in which they respectively were before the amendments thereon were made. The declaration (a) was in covenant on an indenture of demise, between John Philips, from whom the plaintiff derived title, of the one part, and William Nixon the Elder and the defendant of the other part. The indenture, after granting u term of ninety-nine years, from September, 1807, and reserving an annual rent of 1001. payable half yearly on 25th March and 29th September, and reserving a further yearly rent of 201. the acre, and so in proportion, payable on the same days of payment as the said yearly rent, for breaking up pasture land, or for underletting, &c., and also (besides other contingent reservations) a similar contingent rent of 201. per annum for any land "from which should be taken a third crop in any one course of tillage without seeding down the same at the time of sowing the third crop in each course of tillage in a husbandlike manner and sowing every acre thereof, and so proportionably, with twelve pounds' weight at least of good red clover or other proper grass seeds, at the option of" Philips, his heirs, &c., if notice of such option should be given, and laying and spreading, on each and every acre of the land so seeded down, after the crop of corn or grain should [548] have been gotten, a sufficient quantity of good rotten dung or other compost: " the said several eventual or other contingent rents, if any such should become due, to be additional to the first mentioned rent, and to be paid and payable half-yearly by equal portions; and the first payment thereof to become due and be made at that day of payment of the said first mentioned rent which should first and next happen after such eventual or contingent rent should be incurred, and to continue payable from thenceforth during all the residue of the term thereby created." Covenants by the lessees to pay the said yearly rent and also the said several additional rents, &c.; and covenants also not to do certain of the particular acts in respect of which the said additional rents would become payable. The sixth breach alleged that " the defendant did, in three successive years, to wit in the years 1843, 1844 and 1845, and in one course of tillage, sow and take three successive crops of corn, to wit of oats, that is to say, one of such last mentioned crops of corn in each and every of the said last mentioned three years respectively, upon, off and from a certain other part of the said demised premises, to wit upon, off and from six other acres and a quarter of another acre of the said close called," &c., " and did not seed down the same, or any part thereof, at the time of sowing the third of the said three crops of corn in the said course of tillage, in a husbandlike manner, or in any other manner whatsoever ; and did not, nor would, saw every acre thereof, and so proportionably, with twelve pounds' weight at the least, or with any other quantity, of good red clover, or with any other proper grass seeds whatsoever ; contrary to the form and effect of the said indenture of demise and [549] of the said covenant of the defendant in that behalf : whereby the defendant became liable to pay to the plaintiff, by such half-yearly payments as aforesaid, a certain other yearly rent, to wit the yearly rent of 1251., being at and after the rate of 201. the acre as aforesaid, over and above the said first...
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