Friar v Grey and Others
| Jurisdiction | England & Wales |
| Judgment Date | 08 July 1850 |
| Date | 08 July 1850 |
| Court | Exchequer |
English Reports Citation: 155 E.R. 256
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S C 19 L J Ex 368, 15 Jur 814 affirmed, 1854, 4 H L C 564 Considered, Bastin v Bidwell, 1881, 18 Ch D 248
[584] friar v grky and others July 8, 18." 0 -The plaintrff demised to the defendant a coal mine for fotty-two years, at a certain yearly rent The lease contained numerous covenants on the part of the lessee for payment of rent, arrd in respect of the woiking of the mine, &c, with a proviso foi re-entry on bieach of any of them , and also a proviso, that if the lessees should be desirous to quit the premises at the end of the hrst eight years of the term, and of such their desire should give the lessoi notice in writing eighteen calendar months before the expiration of such eighth year, then, all anears of rent being paid, and all and singular tbe covenants and agreements on the part of the lessee having been observed and performed, the lease should, at the expnation of the eighth year, be utterly void, but, nevertheless, without prejudice to any claim or remedy which any of the parties might then be entitled to for breach of any of the covenants -Held, in the Exchequer Chamber, (leversing the judgment of the Couit of Exchequer), that the peiformance of all the covenants by the lessee was a condition precedent to his right to determine the lease [S C 19 L J Ex 368, 15 Jur 814 affnmed, 1834, 4 H L C 564 Considered, Boutin v Bulwell, 1881, 18 Ch 1) 248 ] Covenant on an indenture of lease, by the devisee of the reveision against the lessees Breach, non-payment of rent The plea commenced by sotting out on oyei the indenture, \vherebyjohn Frrar, the plaintiff's testator, demised to the defendants* a certain " colliery, coal mine, and Seam and seams of coal, as well opened as not opened," with hbeity to dig pith, shafts, 5 EX 585 FRIAR V GREY &a , "and also a certain tenement or farmhokl, with the fields, closes, and parcels of ground enjoyed theiewith," for a teim of forty-two years, "yielding and paying unto J Friar, his hens and assigns, foi ,md in respect of the eolheiy, coal mines, seam and seams of coal, liberties and privileges, \early and every year, dunng the continuance of the said term, the lent 01 sum of 2801, foi the yearly nnmbei of lJ-1,588 bolls (each boll to contain tvventy-foui imperial gallons), ot coal, to be wrought and gotten forth and out of the said eolheiy and coal mines, and there vended or removed from and out of the hereditaments hereby demised, the said yearly rent of 2801, to be paid whether such numbei or quantity of coal be yearly wt ought and gotten forth 01 out of the said colliery and coal mines, and there vended or thence removed as aforesaid, or not, and also yielding and paying unto J b'nai, his heirs, &c , in respect thereof, over and above the 3'eaily rent of 2X01, a fuithei rent or sum of money foi each and every boll of coal which shall be had and obtained out of the said pits and mines, and there vended ot [585] thence removed, over and above the annual quantity above specified, at and aftei the rate and hi the proportion of 2001 for 1.50,208 bolls, and aUo yielding and paying for 01 in respect of the said tenement or farmhold and lands, and other the premises hereby demised, yearly and eveiy year, dm ing the continuance of the said term of forty-two years, unto J Friars, his bens, &c, the rent 01 sum of 511 , the seveial and respective rents hereinbefore reserved and made payable, to be paid at two days or times in the year (that is to say), the 1 1th of November and the 12th of May, in each year," &c , "and it is hereby declared and mutually agreed by and amongst the parties heieto, that if the quantity of coals wrought in the haid colliery and coal mines by the said lessees, then executors, &c , shall, in any year, fall short of or be less than the quantity specified to be wrought in each year for or in respect of the said tent of 2801, then it shall be lawful for the lessees, then executors, &0 , to make up the deficiency within thiee years next after .such deficiency shall happen, but not after the end or other sooner determination of the teim heieby granted, on any account whatever " Then followed affirmative and negative covenants on. the pjrt of the lessees, in lespect of the several matters mentioned in the following proviso -" Provided alw.iys, and it is hereby declated and agreed between the parties hereto, that if the said several rents or sums of money hereby reserved or made payable, or any of them or any part thereof respectively, shall be in aireai and unpaid for the space of forty days next after the said days or tunes of payment, or rf the lessees, their executors, &c , shall refuse or neglect to make and pay unto J Fnar, his heirs, &c, or their tenants or faimeis, foi the time being, all and every 01 auy sum or sums of money which shall be adjudged or awarded to be paid to him or them for damage, for the exercise of any of the powers arid liberties hereby granted , or shall neglect or refuse to obey 01 peifoim any awaid which shall be made of or concerning [586] any other cause, tn itter, 01 thing, under 01 pursuant to the clause or provision for arbitration heieinaftei contained , or if the said lessees, then executors, &0 , shall neglect to fill up such pits as shall not be needed foi an, or watercourses, or drawing coal, or shall neglect to carry on arid manage the said colliery and lands in the manner herembefoie specified , or shall not leave good and sufficient walls and pillars of coal, as well to support the roof and lemanung patt of the seam as to pi event any creep or thrust comrng in upon the said colliery , 01 shall do or suffer to be dorre any neglect or wilful matter or thing, whereby the same may be drowned or over-burthened with water or sythe, or whereby any creep or thrust may be brought thereon, 01 the same maybe otherwise dam m heel, 01 shall not leave a barrrei of twenty yards agarnst the adjoining collienes, unless authoiised as aforesaid to do otherwise, or shall work 01 win any coal 01 otherwise disturb the stiata underneath the srbe of any of the sard dwelling houses, offices, or other buildings, ot underneath any part of the said land, situate within twenty yaicls fiorn any such site , ot shall at any time neglect or refuse, after having been thereunto required, to give and present to the sard J Fuar, his hens, or assigns, ot his or then agent or agents, such monthly account of the quantities of coal wiought and won as aforesaid, or shall hinder 01 obstruct the said J Friar, hrs hens, &c , from perusing, inspecting, or examining the overseer's book of presentments, or from measuring ot gauging the corves, tubs, or baskets, as aforesaid, or from entering, viewing, and inspecting the said collleiy, or shall not keep and maintain in such repair as aforesaid, all and eveiy the houses, buddings, erections, watei-levels, chains, water -courses, and other matters and things Ex Div xi-9 258 FREAK V (JRtfY B EX 887 belonging to the said...
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