Liability ratione tenura. for him and his executors, covenanted with the lessor to repair the house at all times necessary; the lessee afterwards assigned it over to another party, who suffered it to decay; it was adjudged that covenant lay at suit of the lessor against the assignee, although the lessee had not covenanted for him and his assigns; for the covenant to repair, which extends to the support of the thing demised, is quodammodo appurtenant to it, and goes with it; and, inasmuch as the lessee had taken upon himself to bear the charges of the reparations, the yearly rent was the less, which was to the benefit of the assignee, and Qui sentit commodum sentire debet et onus (r). The following case may also serve to illustrate the same principle. An action was brought by the devisee in fee of the premises against the executor of a devisee for life of the same premises for permissive waste, the devise providing that the tenant for life should keep the premises in repair. The Court pronounced judgment in favour of the plaintiff on the ground that, however doubtful might be the liability of a tenant for life, in respect of permissive waste, upon whom no express duty to repair was imposed by the instrument creating the estate, yet where such a duty was imposed the liability passed with the enjoyment of the thing thus demised (s). A liability to repair a public highway may attach to Corporations and to individuals by reason of the tenure of lands held by such Corporations or individuals; and in former days it was common for testators to leave portions (r) Dean and Chapter of Windsor's case, 5 Rep. 25; cited per Tindal, C.J., Tremeere v. Morrison, 1 Bing. N. C. 98; which case is followed in Sleap v. Newman, 12 C. B. N. S. 116, 124. (8) Woodhouse v. Walker, 5 Q. B. D. 404; 49 L. J. Q. B. 609; Aspden v. Seddon, 1 Ex. D. 496; 46 L. J. Ex. 353. of their estate charged with this liability (t); and owners adjoining, abutting, or fronting a new street, may now be called upon to contribute to its repair under the provisions of a statute noticed below (u). So, it has been designated a principle of "universal application" that "where a contract has been entered into by one man as agent for another, the person on whose behalf it has been made, cannot take the benefit of it without bearing its burthen. The contract must be performed in its integrity" (x). and agent. A further important illustration of the rule occurs, Principal where a party adopts a contract which was entered into without his authority, in which case he must adopt it altogether. He cannot ratify that part which is beneficial to himself, and reject the remainder; he must take the benefit to be derived from the transaction cum onere (y). Where, therefore, the owner of goods who was undisclosed at the time of the contract for their sale, subsequently interferes and sues upon the contract, justice requires that, if the defendant has credited and acquired a set-off against the agent before the principal interposed, the latter should be bound by the set-off, in the same way that the agent would have been had he been the plaintiff on the record; and that the defendant should be placed in the same situation at the time of the disclosure of the real principal, as if the agent had been in truth the principal (2). (t) Glen on Highways, 107 et seq. (u) 38 & 39 Vict. c. 55, s. 150; and see cases collected in Chitty's Statutes, 4th ed., vol. v., 658. (x) Per Lord Cranworth and Lord Kingsdown, Bristow v. Whitmore, 6 H. L. Cas. 391, 404, 418 (where there was a difference of opinion as to the application of the principal (y) Per Lord Ellenborough, C.J., (z). See text to Thompson v. Davenport, Smith's L. C. 8th ed. vol. 2, p. 377. Assignee. Analogous rule in equity, Again, it is a very general and comprehensive rule, to which we have already adverted, and which likewise falls within the scope of the maxim now under consideration, that the assignee of a chose in action takes it subject to all the equities to which it was liable in the hands of the assignor; and the reason and justice of this rule, it has been observed, are obvious, since the holder of property can only alienate or transfer to another that beneficial interest in it which he himself possesses (a). If, moreover, a person accepts anything which he knows to be subject to a duty or charge, it is rational to conclude that he means to take such duty or charge upon himself, and the law may very well imply a promise to perform what he has so taken upon himself (b). In administering equity the maxim, Qui sentit commodum sentire debet et onus, may properly be said to merge in the yet more comprehensive rule-equality is equity-upon the consideration of which it is not within. the scope of our present plan to enter. The following instances of the application in equity of the maxim more immediately under our notice must suffice. The legatee of a house, held by the testator on lease at a reserved rent, higher than it could be let for after his death, cannot reject the gift of the lease and obtain an annuity under the will, but must take the benefit cum onere (c). A testator gives a specific bequest to A., and directs that in consideration of the bequest, A. shall pay his debts, and makes A. his residuary legatee and executor, the payment of the debts is, in this case, a condition annexed (a) 1 Johns. (U.S.) R. 552, 553; 11 Id. 80; Brandon v. Brandon, 25 L. J., Chanc. 896. (b) See Lucas v. Nockells, 1 Cl. & Fin. 457, citing a passage in Abbott, (c) Talbot v. Earl of Radnor, 3 My. & K. 252. to the specific bequest, and if A. accept the bequest, he is bound to pay the debts, though they should far exceed the amount of the property bequeathed to him (d). Scotch law. We may observe also, that the Scotch doctrine of and in 'approbate and reprobate," is strictly analogous to that of election in our own law, and may, consequently, be properly referred to the maxim now under consideration. The principle on which this doctrine depends is, that a person shall not be allowed at once to benefit by and to repudiate an instrument, but that, if he chooses to take the benefit which it confers, he shall likewise discharge the obligation or bear the onus which it imposes. "It is," as was remarked in an important case upon this subject, "equally settled in the law of Scotland as of England, that no person can accept and reject the same instrument. If a testator give his estate to A., and give A.'s estate to B., courts of equity hold it to be against conscience that A. should take the estate bequeathed to him, and at the same time refuse to give effect to the implied condition contained in the will of the testator. The Court will not permit him to take that which cannot be his but by virtue of the disposition of the will, and at the same time to keep what, by the same will, is given or intended to be given to another person. It is contrary to the established principles of equity that he should enjoy the benefit, while he rejects the condition of the gift" (e). Where, therefore, an express condition is annexed to a bequest, the legatee cannot accept and reject, approbate and reprobate the will containing it. If, for example, the testator possessing a landed estate of (d) Messenger v. Andrews, 4 Russ. 478; and see Armstrong v. Burnett, 20 Beav. 424. 21. (e) Kerr v. Wauchope, 1 Bligh. The converse of this maxim holds. Grant of ferry, &c. small value, and a large personal estate, bequeaths by his will the personal estate to the heir, who was not otherwise entitled to it, upon condition that he shall give the land to another, the heir must either comply with the condition, or forego the benefit intended for him (f). We may add, that the above rule as expressed by the maxim -Quod approbo non reprobo-likewise holds where the condition is implied merely, provided there be clear evidence of an intention to make the bequest conditional; and in this case, likewise, the heir will be required to perform the condition, or to renounce the benefit (g)-Qui sentit commodum sentire debet et onus. The converse of the above maxim also holds, and is occasionally cited and applied; for instance, inasmuch as the principal is bound by the acts of his authorised agent, so he may take advantage of them (h), Qui sentit onus sentire debet et commodum (i). In like manner, it has been observed (k), that wherever a grant is made for a valuable consideration, which involves public duties and charges, the grant shall be construed so as to make the indemnity co-extensive with the burthen-Qui sentit onus sentire debet et commodum, In the case, for instance, of a ferry, there is a public charge and duty. The owner must keep the ferry in good repair, upon the peril of an indictment. He must keep sufficient accommodation for all travellers, at all reasonable times. He must content himself with a reasonable toll-such is the jus publicum (1). In return, (f) Shaw, on Obligations, s. 184. (h) Seignior v. Wolmer, Godb. (i) 1 Rep. 99. (k) Per Story, J., 11 Peters (U. S.), R. 630, 631. (1) Paine v. Patrick, 3 Mod. 289,, 294. |