William Hayes, Plaintiff, and Charles Bickerstaff, Defendant

JurisdictionEngland & Wales
Judgment Date01 January 1823
Date01 January 1823
CourtCourt of Common Pleas

English Reports Citation: 124 E.R. 997

IN THE COMMON PLEAS.

William Hayes, Plaintiff, and Charles Bickerstaff
Defendant

[118] pasch. 21 cab. II. in bang. william hayes, Plaintiff', and charles bickerstaff, Defendant, in Arrest of Judgment. Charles Bickerstaff being possessed of a long term of yeara in certain woodlands and eopces in Cobham, in the county of Kent, demis'd, sett, and to farm lett the same for six years, parcel of his term to the plaintiff, under a rent and other reservations, 998 HATES V. BICKERSTAFF VAUXtHAN, 119. and covenanted; the plaintiff keeping and performing the agreements of his part to be kept and performed. Quod pfiBi.iictus Willielraus Hayes legitime haberet, teneret, & gauderet, & habere, tenere, & gaudere, potuisset prtedicta, dimiasa, prEemissa juxta conventionem prm-antea; in & per Indenturam praadict. dimiss. absque aliquo impedimento, pertur-batione, evictione, vel interruptione quibuscunque de vel per dictum Carolum Bickerstaff Executorea, Adminiatratores, vel Assignatos suos, aut aliquem eorum prout per Indenturam pradictam plenius apparet. That by virtue of the said demise he entred, and was posses'd, and that after, the defendant being possess'd for a longer term, granted the reversion to Charles Duke of Lenox, to whom the plaintiff atturn'd ; and that afterwards the said duke, and others by bis command, entred upon the plaintiff, although he observ'd all agreements of his part, and carried away many loads of faggots and wood, and kept, and still keeps him out of possession, to his damage of eight hundred pounds. And brings his action for breach of the covenant aforesaid. The defendant pleads enjoyment according to the demise, and traverseth the grant of the reversion to the duke, raodo & forma. All covenants between a lessor and his lessee, are either covenants in law, or express covenants. By covenant in law, the lessee is to enjoy his lease against the lawful entry, eviction, or interruption of any man, but not against tortious entries, evictions, or interruptions, [119] and the reason of law is solid and clear, because against tortious acts the lessee hath proper remedy against the wrong doers. So are the express books of 22 H, 6, where a man leas'd by deed-poll without express covenant, and 32 H. 6, where the lease was by deed indented. If the lessor leaseth the term by deed-poll, and outeth the lessee, he shall have a writ of covenant upon that deed-poll, although he hath no indenture of it. But if a stranger, who hath no right, outs the lessee, then he shall not have a writ of covenant against the lessor, because he hath remedy by action against the stranger; but if a stranger enter by elder title, then he shall have a writ of covenant, for he hath no other remedy. This shews the law gives not remedy to the lessee upon the covenant, when he hath a proper and natural remedy against another who doth the wrong. By the same reason, if the lessee be by express covenant to enjoy his term (or enjoy it against all men, which is the same) he shall not have an action of covenant against the lessor, unless he be legally outed or evicted : for if he be outed tortiously by any stranger, he hath his remedy. So is the express book of 26 H. 6, f. 3 b. where it is agreed, that the warranty of a lease for years, is but an action of covenant, which extends not to tortious entries for the former reason. Yet I agree, if the lessor expressly covenants that the lessee shall hold and enjoy his term without the entry or interruption of any, whether such entry or interruption be lawful or tortious 1 There the lessor shall be charg'd by an action of covenant for the tortious entry of a stranger, because no other meaning can be given to his covenant. Accordingly the new authorities run grounded upon that sound and ancient reason of law, that the leasor shall not be charg'd with an action upon his express covenant for enjoyment of the terra against all men, where the lessee hath his proper remedy againat the wrong doer. Against this truth there is one book that hatli, or may be pretended, which I will cito in the first place, because the answer to it may be more perspicuous from the authority I shall after deliver to redargue that case. [120] It is the casa of Sfount/ord and Cutesby in the Lord Dyer. Catesby, in consideration of a sum of mony and a horse, msde a lease to Mountford for term of years, et super se assumpsit, quod the plaintiff Mountford pacifice, & quiete haberet & guaderet, the land demis'd durante termino sine evictione & interruptione alicujus peraonjB; after Catesby's father entred upon him and so interrupted him ; whereupon Mountford brought his action upon this assumpsit, and Catesby pleaded he did not assume, and found against him. It was moved in arrest of judgment for the defendant, that the entry might be wrongful, for which the plaintiff had his remedy, but disallowed, and...

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6 cases
  • Wotton v Hele
    • United Kingdom
    • Court of the King's Bench
    • 1 January 1845
    ...Eliz. 914, Chant/lower v. Priestley. Cro. Jac. 425, Broking v. Cham. Cro. Car. 5, Hamond v. Dod. 1 Rol. Abr. 429, pi. 7. 430, pi. 11, 12. Vaugh. 118, 119, 120, 122, 123, Hayes v. Bickurstaff. Com. Rep. 230, Southgate v. Chaplin. 10 Mod. 383, S. C.(c) (c) But where a person covenants to save......
  • King v David Allen and Sons Billposting Ltd
    • Ireland
    • King's Bench Division (Ireland)
    • 19 May 1915
    ...C. B. (N. S.) 717. (1) L. R. 9 Q. B. 249. (1) [1914] 1 K. B. 663; C. A.31 T. L. R. 97. (1) [1915] 1 K. B. 1. (1) [1897] 2 Q. B. 445. (1) Vaughan, 118. (2) 10 Mod. Rep. (3) 5 M. & S. 374. (1) 13 Q. B. D. 547. (1) [1891] 2 Q. B. 680. (2) 13 Q. B. D. 547. (3) [1915] 1 K. B. 776. (1) [1906] 1 K......
  • Curtis and Another against Vernon
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    • Court of the King's Bench
    • Invalid date
    ...34, 35. Chant/lower v. Priestly, Cro. Eliz. 914. Broking v. Cham, Cro. Jac. 425. Hammond v. Dod, Cro. Car. 5, and Hays v. Bif.kerslaff, Vaugh. 118, which are to the same effect. (b) Vid. Ocjden v. Folliott, in Error, post, 726. 748 CURTIS V. VERNON 3 T. K, 888 executor, nor ever possessed o......
  • Spunner v Walsh
    • Ireland
    • Rolls Court (Ireland)
    • 24 May 1847
    ...Ir. Eq. Rep. 147. Norman v. FosterENR 1 Mod. 101. Waring v. HoggartENR Ry. & Mood. 39. Iggulden v. May 9 VEs. 325. Hayes v. BickerstaffENR Vaugh. 118. Smith v. Pocklington 1 Cr. & Jer. 445. Vickery v. JacksonENR 2 Stark. 293. Whatman v. GibsonENR 9 Sim. 196. Whitton v. Peacock 2 Scott, 630.......
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