Burnett and Others, Executors of the Last Will and Testament of Sir Robert Burnett, Deceased, against W. D. Lynch
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1826 |
| Date | 01 January 1826 |
| Court | Court of the King's Bench |
English Reports Citation: 108 E.R. 220
IN THE COURT OF KING'S BENCH.
S. C. 8 D. & R. 368; 4 L. J. K. B. O. S. 274. Referred to, Hancock v. Caffyn, 1832, 1 Moo. & S. 535. Not applied, Humble v. Langston, 1841, 7 Mee. & W. 530. Applied, Gardiner v. Gardiner v. Gardiner, 1861, 12 Ir. C. L. R. 571; Rudge v. Bowman, 1868, L. R. 3 Q. B. 698. Considered, Moule v. Garrett, 1870-72, L. R. 5 Ex. 137; L. R. 7 Ex. 101; Lee v. Mathews, 1880, 6 L. R. Ir. 536. Referred to, Kellock v. Enthoven, 1873-74, L. R. 8 Q. B. 467; L. R. 9 Q. B. 246. Adopted, Woodhouse v. Walker, 1880, 5 Q. B. D. 406. Commented on Baynes v. Lloyd, [1895] 2 Q. B. 615.
220 BURNETT V. LYNCH 5B.&C.589. [589] burnett and others, Executors of the Last Will and Testament of Sir Robert Burnett, Deceased, against W. D. lynch. 1826. In an action by a lessee against the assignee of a lease, the plaintiff having proved the execution of the counterpart of the lease, the defendant put in the original lease, which was produced by a party to whom he had assigned it: Held, that it was not necessary for the plaintiff to call the subscribing witness to prove the execution of the lease. The lessee, by deed-poll, assigned his interest in the demised premises to A., subject to the payment of the rent and the performance of the covenants contained in the lease. A. took possession, and occupied the premises under this assignment, and before the expiration of the term assigned to a third person. The lessor sued the lessee for breaches of covenant committed during the time that A. continued assignee of the premises, and recovered damages against the lessee : Held, that the lessee might maintain an action upon the case founded in tort against A. for having neglected to perform the covenants during the time he continued assignee, whereby the lessee sustained damage. It was averred in the declaration that the defendant continued in possession until the end of the term, and whilst he was in possession as such assignee, suffered the premises to be out of repair. The proof was that he had ceased to be assignee before the expiration of the term : Held, that this was not any variance. [S. C. 8 D. & R. 368 ; 4 L. J. K. B. 0. S. 274. Referred to, Hancock v. Ca/yn, 1832, 1 Moo. & S. 535. Not applied, Humble v. Langstm, 1841, 7 Mee. & W. 530. Applied, Gardiner v. Gardiner, 1861, 12 Ir. C. L. R. 571; Budge v. Bowman, 1868, L. R. 3 Q. B. 698. Considered, Moule v. Garrett, 1870-72, L. R. 5 Ex. 137 ; L. R. 7 Ex. 101; Lee v. Mathews, 1880, 6 L. R. Ir. 536. Referred to, Kellock v. Enthoven, 1873-74, L. R. 8 Q. B. 467; L. R. 9 Q. B. 246. Adopted, Woodhouse v. Walker, 1880, 5 Q. B. D. 406. Commented on, Baynes v. Lloyd, [1895] 2 Q. B. 615.] Declaration stated that the plaintiffs, as executors, before the making of the assignment, and also before the committing of the grievances thereinafter mentioned; to wit, on, &c. at, &c. were lawfully possessed for the residue of a certain term, whereof at the time of making such assignment seven years were unexpired, of and in certain premises with the appurtenances, together with the use of certain household goods, furniture, fixtures, and other things mentioned in a schedule or inventory annexed to an indenture of demise or lease thereof made to Sir Robert Burnett, by 0. P. Meyrick, Esq. bearing date the 30th of August 1804, under and subject to certain rents and certain covenants therein contained by Sir R. Burnett, his executors, administrators, and assigns, to be performed. The following covenants were then set out: " To paint the outside wood-work of the house, and the iron railing, &c. once in every five years, to repair during the term, and to yield up the premises sufficiently repaired at the expiration of the term, and to keep in proper order and condition the [590] garden and gravel walks, preserve the fruit trees therein, and to replace such shrubs and fruit trees as might die or decay with others of an equally good or better sort; and at the end of the said term leave the garden walls properly planted with fruit trees, and the kitchen-garden ground properly planted with vegetables and roots." Averment, that defendant had notice of all these premises. And the plaintiffs being so possessed of the demised premises, afterwards, and before the committing of the grievances by the defendant as thereinafter mentioned, to wit, on the day and year last aforesaid, at, &c. at the request of the defendant all the estate and interest of the plaintiffs of and in the demised premises, with the appurtenances, was duly assigned to the defendant, to hold to the defendant, his executors, &c. from the 29th September 1817, for the residue of the term by the indenture demised as aforesaid, under and subject to the payment of the rents thereby reserved, and to the performance of the covenants therein contained, on the part and behalf of the said Sir Robert Burnett, since deceased, his executors, administrators, and assigns, from the said 29th day of September 1817, to be performed and kept. By virtue of which assignment the defendant entered into and upon the said demised premises, and was possessed thereof for the residue of the term so to the said Sir Robert Burnett demised, and continued so possessed thenceforth for a long space of time, to wit, unto the end and expiration of the term so demised as aforesaid, to wit, at, &e.; whereupon it then and there became and was the duty of the defendant, as such assignee of the demised premises from the 5B.&C.591. BUHNETT V. LYNCH 221 29th September 1817, to perform all and singular the rents and covenants in the said [591] indenture contained for and during so much of the residue of the term as he, the defendant, should remain possessed of the demised premises as such assignee as aforesaid. Nevertheless, the plaintiffs say that the defendant, not regarding his said duty in that behalf, but contriving, &c. to injure the plaintiffs in this behalf, did not, nor would, after he became possessed of the said demised premises, and after the said 29th day of September 1817, during the time he remained and continued possessed of the said demised premises, as such assignee thereof, at his own cost and charges, in a good and effectual manner, once in every five years of the said residue of the said term, paint all the wood-work of the outside of the said mansion-house and offices, &c. Breaches of the covenants to repair were then alleged to have been committed by the defendant, by suffering the premises to be out of repair whilst he was assignee, and so to continue for a long space of time, to wit, until and at the end and determination of the demised term. The declaration then proceeded as follows: By reason whereof, and of the said several breaches of covenant, the said 0. P. Meyrick in Hilary term, in the fifth year of the reign of our lord the now King, in the Court of King's Bench, at, &c. impleaded the plaintiffs as such executors in a plea of breach of covenant for the damages sustained on occasion of such several breaches of covenant as aforesaid ; and such proceedings were thereupon afterwards had in the said action, that in Easter term, in the sixth year of the reign of our lord the now King, it was by the said Court considered that the said 0. P. Meyrick should recover, and the said 0. P. Meyriek recovered against the plaintiffs as such executors 11651. for his damages, as well [592] by reason of the said several breaches of covenant as for his costs and charges about his suit in that behalf expended. By means of all which said several premises the-plaintiffs as such executors were forced and obliged to pay, and afterwards, to wit, on, &c. at, &c. did actually pay the said sum of 11651. so recovered against them as such executors, and were necessarily put to and incurred certain costs and charges amounting to 5001. in and about their defence in the said action, to wit, at, &c. To plaintiffs-damage as such executors as aforesaid of 20001. Plea, the general issue. At the trial before Best C.J. at the Summer Assizes for the county of Surrey, 1825, the plaintiffs proved that the original lease, which had been granted by Meyrick to Sir E. Burnett, had been delivered to the defendant Lynch, and they proved the execution of the counterpart by the testimony of the subscribing witness. The defendant's counsel then put in the lease itself, which was...
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