Simons and Another v Farren
| Jurisdiction | England & Wales |
| Judgment Date | 17 November 1834 |
| Date | 17 November 1834 |
| Court | Court of Common Pleas |
English Reports Citation: 131 E.R. 1121
IN THE COURT OF COMMON PLEAS
simons and another v. fakren. Nov. 17, 1834. To covenant for rent, plea that Defendant, with the consent of lessor, carried on the business of a retail brewer and retailer of beer, whereupon a forfeiture was incurred, and he was evicted by B. C. having good right and title to the premises as heir of C., with whom Defendant's lessor had covenanted not to carry on the business of a retailer of beer without the consent of C., Held ill. Covenant for rent due under an indenture of demise of the 9th of July 1830, between Plaintiff and Defendant, in which, among other things, Defendant had covenanted not to carry on upon the premises demised the business of a retailer of beer, ale, or spirituous liquors, without first obtaining the Plaintiffs' leave in writing. The Defendant pleaded, that one Chantrell and his wife, being seised in fee of the premises, by indenture of August 1820, demised them to one Ponder for twenty-one years, and that Ponder, for himself and his assigns, covenanted not to carry on upon the premises the business of a common brewer or retailer of beer or spirituous liquors, without first obtaining the leave of Chantrell and his wife in writing; and that it was provided that the term granted to him should determine and be void, and that the Chantrells should be entitled to re-enter, upon his failing to keep his covenant: That the Plaintiffs, after making the indenture of July 1830, by licence in writing, authorised the Defendant to exercise on the premises the trade of retail [273] brewer, that is to say, the business of a brewer and of a retailer of beer (a): That the Defendant, after such consent, and before the rent claimed in the declaration became due, entered on the premises and there carried on the trade of a retail brewer, and of a retailer of beer (a): And that whilst he was in possession of the premises, and so carrying on in them the trade of a retailer of beer (a), On the ground that he was so carrying on upon the premises the business of o retailer of beer (a), and that a forfeiture of the lease of August 1820 was occasioned thereby, One K. D. Chantrell, having good right and title to the premises as eldest son and heir to the said Chantrell and wife, before the rent claimed in the declaration became due, delivered a declaration in ejectment to the Defendant, upon which judgment was afterwards entered up, and a writ of possession issued against the Defendant, and thereupon, Before the rent claimed in the declaration became due, the Defendant was by force of that writ, put out, amoved, and evicted from the said demised premises. Eeplication, That the said supposed licence or consent in writing, in the said plea (a) The words in italic were inserted upon amendment. See ante, p. 126. C. P. IX.-36 1122 SIMONS V. FARREN 1 BING. (N. C.) 274. of the Defendant mentioned, was and still is subject to a certain proviso therein mentioned, in the words and figures following, that is to say, " We do hereby authorise and permit Mr. James Farren to use and exercise his trade of a retail brewer upon the premises comprised in a certain indenture of lease of even date herewith; and we undertake not to molest or disturb the said James Farren, his under-tenants or assigns, in his or their [274] possession, notwithstanding any such occupation of the said premises may be contrary to the proviso in such lease contained. Provided always, nevertheless, that this authority is not to exempt, or be construed to exempt, the said James Farren, or his executors or administrators, from any liability under his covenant contained in the said indenture of lease, in case the original lessor or his assigns should commence any proceedings for the breach of any such covenant or proviso as contained in the original lease : as witness our hands this 9th day of July 1830.-John Simons, Richard Battley." Demurrer and joinder. W. H. Watson in support of the demurrer. The replication is ill, for it neither denies, nor confesses and avoids the plea. And the Plaintiffs having themselves authorised the Defendant to carry on the business of a retail brewer, subject to his liability to forfeit...
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Wotton v Hele
...after verdict for the plaintiff it was moved in arrest of judgment, that the declaration was not good, (g) [But in Simons v. Fairen, 1 Bing. N. C. 272. 1 Scott, 105, S. C. it was doubted whether these decisions applied to the case of a plea, where the lessor, in answer to a claim for rent b......