Turner v Lamb
| Jurisdiction | England & Wales |
| Judgment Date | 28 June 1845 |
| Date | 28 June 1845 |
| Court | Exchequer |
English Reports Citation: 153 E.R. 535
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
Referred to, Joyner v. Weeks, [1891] 2 Q. B. 31; Conquest v. Ebbetts, [1896] A. C. 490.
[412] turner u. lamb. June 28, 1845.-Senible, in covenant for non-repair, the declaration ought to state the term for which the premises were demised. [Referred to, Joyner v. Weeks, [1891] 2 Q. B. 31 ; Cmiqiumt v. Ebbettn, [1896] A. C. 490.] This was an action of covenant by lessor against lessee, for not repairing. The declaration stated, that on &c., by a certain indenture, made between the plaintiff of the one part, and the defendant on the other part [profert], the plaintiff', for the considerations therein mentioned, did demise, lease, set, and to farm let to the defen- I dant, his executors, &c., a certain messuage, tenement, and premises, with the : apportanances^ more particularly mentioned and described in the said indenture. It then set qut the covenant to repair, and assigned breaches thereou. Special demurrer, assigning for cause, that the declaration omitted to state the term for ivhich the premises were demised. Joinder in demurrer. Pearson, in support of the demurrer. The declaration ought to shew the duration ' of the term demised. In an action for non-pnynient of rent, this may not be necessary ; but in an action for non-repair it is ; because the jury cannot otherwise properly assess the damages. The precedent given in the case of Thursby v. Plant (1 Saund. 230 b. ; 233 note (2)) sets out both the term and the parcels. For the same reason, in a declaration against a sheriff for extortion in the execution of a fi. fa., the declaration ought to state the sum actually taken by him, and it is not sufficient to allege that he 536 PKNNELL V. AHTONT 14 M. & W. 413. took a certain sum more than is allowed by the statute. Ashby v. Ifarrin (2 M. & W. 673). [Parks, LJ. The question is, whether there is not a difference in the damages, if 'the lessee hold for one year or a thousand years : if there is, the declaration is not sufficiently certain. In Vivian v. C'amj ion,(c) which [413] was an action by the heir on the demise of his ancestor, the breach assigned was, that on the 1st of April, 3rd Anne, and for ten years before then, the premises were out of repair; and Lord Holt saj's,-"If the premises were out of repair in the time of the ancestor, and continued so in the time of the heir, it is a damage to the heir ; the jury give as much in damages...
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