Faithful Croft v Benjamin Lumley
| Jurisdiction | England & Wales |
| Judgment Date | 17 April 1858 |
| Date | 17 April 1858 |
| Court | House of Lords |
English Reports Citation: 10 E.R. 1459
House of Lords
Mews' Dig. iv. 1061, 1062; v. 1514; viii. 1006, 1016, 1019, 1163, 1243; x. 892; xiv. 27, 36, 41, 1808. S.C. 27 L.J. Q. B. 321; 4 Jur. N.S. 903; 6 W.R. 523; and, below, 4 E. and B. 608; 24 L.J. Q.B. 78; 1 Jur. N.S. 424; 3 W.R. 234. Considered, on point as to forfeiture, in Davenport v. Reg., 1877, 3 A.C. 131. Distinguished in Ackroyd v. Smithies, 1885, 54 L.T. 132; and cf. Clough v. L. and N.-W. Ry. Co., 1871, L.R. 7 Ex. 35; James v. Young, 1884, 27 Ch.D. 663.
Ejectment - Covenants - Affirmative and Negative - Forfeiture - Waiver.
[672] FAITHFUL CROFT,-Plaintiff in Error; BENJAMIN LUMLEY,-Defendant in Error [June 29, 30, 1857; February 15, April 17, 1858]. [Mews' Dig. iv. 1061, 1062; v. 1514; viii. 1006, 1016, 1019, 1163, 1243; x. 892; xiv. 27, 36, 41, 1808. S.C. 27 L.J. Q. B. 321; 4 Jur. N.S. 903; 6 W.R. 523; and, below, 4 E. and B. 608; 24 L.J. Q.B. 78; 1 Jur. N.S. 424; 3 W.R. 234. Considered, on point as to forfeiture, in Davenport v. Beg., 1877, 3 A.C. 131. Distinguished in Ackroyd v. Smithies, 1885, 54 L.T. 132; and cf. Clough v. L. and N.-W. Ey. Co., 1871, L.R. 7 Ex. 35; James v. Yowig, 1884, 27 Ch.D. 663.] Ejectment-Covenants-Affirmative and Negative-Forfeiture-Waiver. A lease of the Opera House contained covenants on the part of the lessee: First: not to use the house for any but purposes of a theatrical kind, and " to use his best endeavours to improve " the house for that purpose. The house was closed at the end of the season of 1852, and was not opened at all during the following year. Held, that this was not a breach of the covenant. Second: not to grant away, assign, dispose of, eto. the stalls or boxes " for any longer period than one year or season." On the 21st December 1851, the lessee leased certain boxes for one year, to commence from March 1852. On the 1st August 1852 he made another lease of the same boxes to' a different person, with this habendum, " from the 1st February now next ensuing, or from such subsequent day during the year, upon, which the theatre shall be opened, and thenceforth for the full term of one year, to be computed from that day:" Held, that this was not a breach of the covenant. Third: " not to charge nor incumber the theatre, or the income thereof, or the terms hereby granted by mortgaging the same, or granting any rent-charges or any other incumbrance whatever." The lessee was greatly in debt. In respect of Ms debts he granted warrants of attorney (one of which, was to secure payment of bills not then due, and another provided that it was a concurrent security, with an indenture therein recited, that judgment was to be entered up when the grantee thought fit, and be registered), and judgments were signed against him on those warrants of attorney, and upon Judge's orders, and registered: Held, that no breach of this covenant had been committed. A lessee tenders money in payment of rent due, and requires that it shall be accepted as rent; the lessor refuses so to accept it, but says that he will accept it as compensation for past occupation, and (each party still continuing to assert what is his own intention on the matter) takes up the money: Qu. whether this amounts to a waiver of a previous right of re-entry on a forfeiture for breach of covenant? And Qu. whether a waiver will operate upon breaches not known at the time 1 [673] Semble, that where a clause of re-entry is " if the lessee shall make default of or in the performance of all or any of the other covenants," eto. a non-observance of negative covenants will entitle the lessor to re-enter. This was a writ of error on a judgment of the Exchequer Chamber, which had affirmed a previous judgment of the Court of Queen's Bench. In 1845 the Plaintiff demised to Benjamin Lumley, the Opera House in the Hay-market, as to one part for 66, and as to another part for 51 years, at an annual rent 1459 VI H.L.C., 674 CROFT V. LUMLEY [1857-58] of £1934 14s. The lease contained several covenants, some of which the Plaintiff alleged to have been broken, and thereon brought ejectment against Lumley, to recover possession of the house. The cause was tried at the Middlesex Sittings after Hilary Term, 1855, when a verdict was taken, by consent for the Plaintiff, subject to the opinion of the Court on a case. The case stated several parts of the lease, and set forth the following .covenants: -first, that Lumley covenanted with Croft that he, " Lumley, his executors, administrators and assigns shall not, nor will at any time hereafter, during the said term, convert the said theatre or Opera House, or any part thereof, to any other use than for acting or performing operas, plays, concerts, balls, masquerades^, assemblies, and such theatrical and other public diversions and entertainments as have been usually given therein, but shall and will during all the said term, use his and their utmost endeavours to improve the same for that use and purpose." The breach complained of was that the Opera House was not opened after the season of 1852. The second covenant on which a question arose, was that " Lumley, his executors, etc., shall not nor will, without the consent in, writing of Croft, grant away, assign or let, charge or dispose of, the boxes or stalls1 of the said theatre, or any of them, respectively (except ninety-six spe-[674]-cially mentioned) for any term or number of years whatsoever, or for any longer period than one year or season." The breach complained of was the execution of leases of certain boxes and stalls (not of the ex-cepted number), for what were alleged to be terms exceeding one year or season : one instance was this:-On the 20th December 1851, the Defendant leased to one Brandus certain boxes for one year from the 1st March 1852, and on the 1st August 1852, he made another lease of the same boxes to one Hughes, the habendum of which was to hold these boxes " from the 1st day of February now next ensuing, or from such subsequent day during the year 1853, upon which the said theatre or Opera House shall be first opened for the public performance of operas or other theatrical entertainments, and thenceforth for the full term of one year, to be computed from that day; provided, nevertheless, that in case the said theatre or Opera House should not during the said year 1853 be opened for the public performance of operas or other theatrical entertainments, then, in substitution for, and not in addition to, the said term, the term hereby granted should commence on the first day in any ensuing year on which day the said theatre or Opera House should be first opened for the public performance of operas or other theatrical performances, and the same term should thenceforth continue for the term of one year, computed from that day, subject nevertheless to a proviso for redemption." A thied covenant was, that Lumley would not " charge nor incumber the said theatre, or the income thereof, or the terms hereby granted, by mortgaging the same, or granting any rent-charges, or any other incumbrance or incumbrances whatsoever." The breach alleged was, that Lumley had given warrants of attorney to Mr. Hughes and other persons, to secure the payment of different sums of money. One was a warrant of attorney granted in [675] June 1852, to secure the payment of certain bills of exchange, the earliest of which appeared to be payable on the " 30th of July next," and the latest on the " 1st of October next." Judgment was signed on this warrant of attorney on the 10th of August 1852, and was1 duly registered in the Common Pleas Office and the Middlesex Registry Office. Another was a warrant of attorney dated 6th of October 1852, the defeasance of which was relied on. It recited an indenture of the 1st August of that year, whereby, to secure payment of a sum of £2500, it was agreed that the warrant of attorney should be given, and that the judgment to be entered up by virtue thereof was intended as a concurrent security with the indenture, and that " judgment shall forthwith, or at such time hereafter as Hughes shall think fit, be entered up under the authority of the said warrant of attorney, and be registered ; but that no execution shall be issued upon the said judgment unless or until the said sum " (a portion of the gross amount) " shall not be paid on the 1st day of February now next ensuing; but in case such default shall be made, it shall be lawful for Hughes, his executors, etc., immediately, or at any time, to issue execution upon the said judgment against Lumley for the said sum, etc., together with costs, etc., without making or entering into any previous suggestion, and without suing out any writ of scire facias, etc." Judgment was signed on this warrant of attorney upon the 20th October 1852, and it was registered both in the 1460 CROFT V. LUMLBY [1857-58] VI H.L.C., 676 Common Pleas Office and the Middlesex Registry Office. Other warrants of attorney had been given, and there were besides several Judges' orders for payment of money, which orders were made in causes wherein Lumley was the Defendant, and other persons, his creditors, were Plaintiffs. The case found that Hughes was not aware, until about August 1852, that Lumley was the lessee of the Opera [676] House. The lease to the Defendant contained a proviso for re-entry for breach of the covenants to pay the rent; not to let boxes, etc. for more than one year; to insure the property; to pay the premiums on the insurance; or " if Lumley shall make default of or in the performance of all or any of the other covenants hereinbefore contained, which on his part are or ought to be performed, observed, and kept." The case farther stated that Mr. Martelli, the agent for the Plaintiff and for the parties beneficially interested under the lease, became acquainted, in July 1854, with the existence a,nd registration of some, but not all, of these...
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