Grey and Others against Friar
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1850 |
| Date | 01 January 1850 |
| Court | Exchequer |
English Reports Citation: 117 E.R. 699
IN THE EXCHEQUER CHAMBER.
[901] in the exchequer chamber. (error from the queen's bench.) grey and others against friar. 1850. See note, p. 889, ante. [For note see 15 Q. B. 891.] Error waa brought in the Exchequer Chamber on the above judgment: there was the common assignment of errors; and it waa also assigned for error that the replica tion waa bad. The case was argued in Michaelmas vacation 1849 (November 29th and 30th), before Maule, Williams and Talfourd Js., and Parke, Rolfe and Platt Ba. Hugh Hill, for the plaintiffs in error. First, the replication is bad in form : it should have assigned some particular breach of covenant, and have concluded to the Court. In Porter v. Shephard (6 T. R. 665), to which the judgment of the Court below refers on this point as well as on the point of substance, the formality of the replication waa not in question, for the plea contained no averment of performance; but Lawrence J. makes this observation: "If it had been necessary for the plaintiff to assign a breach of some other covenant" (that is, some other than the covenant for payment of rent), "I admit that the general allegation in the replication would not have been sufficient: but here the defect is in the defendant's plea, and not in the replication." It is said, in the judgment of the Court below, " this is [902] not like the case of a bond declared on generally for the penalty, with a plea setting out a condition and averring general performance, in which, or any similar case, no doubt, the plaintiff must; in his replication shew a specific breach, and conclude to the Court, giving the defendant an opportunity to plead to that breach." But the pleadings as to the performance of conditions in a bond and of the covenants in a deed must be governed by the same principle, and subservient to the same object: namely, the avoiding of prolixity, and the attainment of a certain and definite issue. This point ia illustrated by Com. Dig. Pleader (E, 26), (F, 14), Co. Litt. 303 b., Stephen on Pleading, oh. 2, a. 4, rule 7, p. 396 (5th ed.), Mints v. Bethil (Cro. Eliz. 749), (Granger v. Hemburow (1 Sid. 77), Church v. Srownewick (1 Sid. 334), notes (4) and (g) to Hayman v. Gerrard (L Wms. Sauud. 103 d. (6th ed.)), Sayre v. Minns (2 Cowp. 575), Plomer v. Ross (5 Taunt. 387). In conformity with this principle, and the cases cited in illustration of it, the lessee in an action of covenant may plead performance generally, and the lessor in reply must assign specific breaches. Here no specific breach is assigned, except in the inducement to the replication; and the replication is therefore bad in form. Secondly, the performance of all covenants by the lessees was not a condition precedent to the determination of the lease. The language of the proviso should receive that construction which will best effectuate the intention of the parties to be collected from the whole of their agreement; lord v. Beech (11 Q. B. 852, 866), [903] ia a striking instance of such construction. The multiplicity of the covenants and the minuteness of some of the matters provided for by them with respect to the farmhold, such as the fallowing of the land, the quantity of grass seed to be sown, and the preservation of the lands so sown from trespass, exclude the supposition that such a condition precedent was contemplated. Again, the other subject of demise, the colliery, ia let at a fixed rent for a term of forty-two years. Is it probable that the 700 GREY V. FRIAR Is Q. B. 904. breach of any one covenant, however unimportant, was considered as involving the liability to such rent for the whole term, even though the coal should become exhausted at the commencement of the term, as in Marquis of Bute v. Thompson (13 M. fe W. 487)? It appears, on the contrary, that the contingency of non-performance by the lessees of some of their covenants at the time of their determining the lease was contemplated; for the landlord's remedy for such a breach is expressly kept alive; which would be useless if the performance of such covenants were a condition precedent. The words "nevertheless, without prejudice to any claim or remedy" "for breach of any of the covenants or agreements hereinbefore contained " cannot refer to covenants on the part of the landlord ; for no such covenants precede the proviso. The words used in this proviso are not apt words of condition, but, rather, words of covenant; 1 Shep. Touch. 121, 122, 2 Bac. Abr. 110, 116 (7th eel.), tit. Conditions (A), (G-). In Hays v. Bkkerstuffe (2 Mod. 34), which was an action on a covenant that the lessee, " paying the rent and performing the covenants on his part to be performed," should quietly enjoy, it was held that the performance [904] of the lessee's covenants was not a condition to the quiet enjoyment. This authority was recognised in Warren v. Asters (2 (T.) Jones, 205), and in Vawson v. Dyer (5 B. & Ad. 584, 587), where Parke J. observed, with reference to Simpson v. Titlerell (Cro. Eliz. 242) (which was cited to shew that a proviso was a condition): " The reason given there is against you ; for it is said by the Court, that a proviso always implies u...
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