Upton v Townend
| Jurisdiction | England & Wales |
| Judgment Date | 09 November 1855 |
| Date | 09 November 1855 |
| Court | Court of Common Pleas |
English Reports Citation: 139 E.R. 976
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 25 L. J. C. P. 44; 1 Jur. N. S. 1089.
[30] upton v. townend. upton v. g-reenlees. Nov. 9, 1855. [S. C. 25 L. J. C. P. 44; 1 Jur. N. S. 1089.] A. demised, under separate leases, two, separate tenements to B., with a covenant on the part of A. to insure the premises, and to rebuild in the event of their destruction by fire. B. demised one of the tenements to C., and the other to D.; and during their respective tenancies the whole premises were destroyed by fire. The premises were afterwards rebuilt by A., pursuant to a new plan submitted to B., and approved of and signed by him. B., before the re-building, agreed to surrender the premises, and take a new lease of them in their altered state, which he afterwards did. The new buildings varied from the old ones, inasmuch as the area of C.'s premises was thereby decreased, and that of D.'s increased:-Held, that B. was not entitled to recover against C. and D., as for use and occupation, the rent accruing after the period at which the re-building had arrived at such a stage as permanently to alter (a) Williams, J.,- was absent. 17 C. B. 31. UPTON V. TOWNBND 977 the character of the respective premises,-the alterations in the subject-matter of the demises amounting to an eviction, to which he was a party. By the indorsement on the writ of summons in the first-mentioned action, of Upton v. Townend, the plaintiff claimed as follows :- s. d. " 1854, June 24, half-year's rent to this day, of warehouse on the ground floor and basement of house, No. 5 Bread Street, Cheapside, in the City of London . . . 115 0 0 1854, June 24, half-year's rent to this day, of warehouse on the first floor of the same house . . . 30 0 0 ''145 0 0" The declaration was for money payable for use and occupation of a messuage and rooms, and on accounts stated. The defendant pleaded, as to 721. 10s. parcel of the money claimed, payment into court of that sum, and, as to the residue of the claim, a denial of the debt. The plaintiff accepted the payment in satisfaction, pro tanto, and joined issue as to the residue of the claim. The cause came on for trial before Jervis, C. J., at the sittings in London after Michaelmas Term last, when a verdict was found for the plaintiff, damages, 721. 10s., costs 40s., subject to the opinion of the court upon the following case:- On the 1st of December, 1836, the Goldsmiths' Com-[3i]-pany, of London, being in their corporate character seised in fee-simple in possession of the tenements hereinafter mentioned, by indenture of that date, sealed with their corporate seal, and also executed by the plaintiff, demised to the plaintiff, for twenty-one years from the 25th of March, 1836, the house and premises, No. 5 Bread Street, London, subject to the annual rent of 2701. 12s. 6d., payable quarterly, on the usual days, and to the payment to the company on the 25th of March in each year, of the sum which the company should have paid, or be bound to pay, for insurance of the premises from loss or damage by fire. That indenture contained covenants on the part of the plaintiff, so to pay the said rent and sum for' insurance, without any deduction, and to repair, casualties by fire excepted; and, on the part of the company, to effect, and during the said term to keep in force, an insurance' to the amount of 2500L of the demised messuage and premises from loss or damage by fire; and that, in the event of such loss or damage happening, the sums payable in respect thereof under such insurance should with all convenient speed be applied towards the rebuilding and repairing the said demised premises, or such part thereof as should be damaged or destroyed by fire. Under this demise the plaintiff entered, and held possession of the house and premises thereby demised. On the 30th of May, 1846, the plaintiff, by indenture of that date, executed by him and the defendant respectively, demised to the defendant, for seven years from the 25th of March, 1846, "All those warehouses then or lately in the occupation of Mr. Load, on the ground floor and basement of the before-mentioned house, No. 5 Bread Street, London, subject to an annual rent of 2301., payable quarterly, on the 24th of June, the 29th of September, the 25th of December, and the 25th [32] -of March,-the first quarterly payment to be made on the 24th of June, 1846." That indenture contained covenants on the part of the defendant so to pay that rent, to repair, and yield up the premises at the end of the term in good repair and condition, reasonable use and wear thereof and damage by fire only excepted; and also covenants on the part of the plaintiff, with the defendant, that the defendant, paying the rent and performing the covenants, should peaceably and quietly hold and enjoy the premises thereby demised for^the term thereby granted, without any interruption, eviction, molestation, or disturbance of or by the plaintiff, or the said Goldsmiths'Company,-or other the superior, landlord or landlords of the premises, their successors or assigns, or any other person or persons whomsoever lawfully claiming or to claim by, from, or under him,. them, or any of them; and also that he, the plaintiff, would, if required so, to do by notice in writing signed by the defendant, six months before the expiration of the term thereby granted, at the costs of the defen- 978 UPTON V. TOWNEND 17 a B. 33. for such further term as should be equal to the remainder of the term, less twenty days, which the plaintiff should then have or be entitled to in the thereby demised premises under the lease whereby they were demised to the plaintiff, such further lease to be at the same rent and subject to the like covenants as those contained in this indenture and in the indenture whereby the premises,were demised to the plaintiff, except the covenant for renewal, the defendant, at his costs, executing a counterpart of such lease. . .,' . .:... In this indenture it was. also agreed that a right of way, and use in. common of the gateway and court-yard abutting north on the thereby demised .premises should be reserved to the Goldsmiths' Company, their sue-[33]-cessors and assigns, the superior landlords of the said premises, for the use of their tenant for the time being of the warehouse situate and being at the north-west angle of the said court-yard; and it was thereby further agreed, that it should be lawful for the plaintiff, his executors, administrators, or assigns, and his and their superior landlord or landlords for the time being, and the officers of the establishment in which the premises should be insured against fire, at the times therein mentioned, to enter and see the state of repair. Under this demise, the defendant entered, and held possession of the premises thereby demised. On the 18th of April, 1849, by a memorandum in writing: of that date, subscribed by the plaintiff and the defendant respectively, the plaintiff agreed to let to the defendant the first floor front warehouse or room of the said No. 5 Bread Street, London, for three years from Lady-Day, 1849, and so on for so long as both parties should agree, at the yearly rent of 601., payable quarterly, the first quarterly payment to be due on the 24th of-June, 1849, and, at the expiration of the lease already granted to the defendant as aforesaid of the said ground floor and basement warehouses, to grant a lease of the said first floor front room for such term as the plaintiff had agreed to do by the said lease dated the 30th of May, 1846, at the rent of 601. per annum. Under this agreement, the...
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Commissioners of Crown Lands v Page
...authority of Walls, v. Atchison; volume 3 Bingham, page 462. 7 Mr. Dunn, in opening the case for the appellant, cited to us the case of Upton v. Townend (volume 17 Com ion Bench Reports, page 30; volume 139 English Reports, page 976) a case which, as appears from the textbooks above mention......
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Cummings v Stewart (No. 2)
... ... Eviction from part of the premises is the eviction from the whole: Foa on Landlord and Tenant, 4th ed., p. 168; Upton v. Townsend ( 4 ). [The Master of the Rolls referred to Irish Society v. Tyrrell ( 5 ).] That case turned on section 44 of Deasy's Act (23 & ... ...