1851. The Earl of ment shall and may be entered accordingly, and shall be of the same effect in all respects as if the same had been given by the court of general or quarter sessions upon an appeal duly entered and continued." had been an appeal at sessions, there would have been of ST. JAMES's, no costs. Channell, Serjt., stated that he had been informed that the costs allowed in the case referred to were taxed as between party and party. JERVIS, C. J. The officer will inquire as to the practice of the other courts, and draw up the rule accordingly, and also to amend the rate. The rule was afterwards drawn up dismissing Resp. DAVIS v. BURRELL and LANE. April 17. Where a lessee covenants to pay rates and taxes, no de&c., sary, to constiwith tute a breach, mand is neces TRESPASS for an assault and false imprisonment. Pleas,-first, not guilty "by statute,"—secondly, that the defendant Burrell, at the said time when &c., was lawfully possessed of the premises in which and, being so lawfully possessed, the plaintiff, divers other persons, were committing a breach of the peace, and endeavouring to beat in and break the doors avail himself of the proviso for re-entry. of the said premises, and to effect a forcible entry therein; and that thereupon the defendants, to prevent the plaintiff's further proceeding in that breach of the peace, then gave the plaintiff into custody, as they lawfully might for the cause aforesaid,-thirdly, that the defendant so as to entitle the lessor to 1851. DAVIS v. BURRELL. Burrell was lawfully possessed of and in a certain part of a certain yard, and certain stables adjoining thereto, and that the plaintiff entered the yard, with other persons, and made a great noise and disturbance, and used violent and threatening language, and disturbed the defendant Burrell in the peaceable possession of the said yard, in breach of the peace, &c., and that thereupon the defendants, in order to preserve the peace, gave the plaintiff in charge to a police-constable, as they lawfully might, &c. The plaintiff joined issue on the first plea, and replied de injuriâ to the other two. The cause was tried before Jervis, C. J., at the sittings at Westminster after the last term. The facts that appeared in evidence were as follows:-The plaintiff had been tenant to the defendant Burrell of a public-house, yard, stables, and coachhouse, in Catherine Wheel Yard, Great Windmill Street, under a demise for twenty-five years from the 25th of December, 1842, at the yearly rent of 175l., payable quarterly, originally made to one Smith, who had assigned his interest in the premises to Burrell. The lease contained the usual covenants on the part of the lessee and his assigns, to repair and paint, and to pay rent, rates, and taxes, and also a covenant to yield up the fixtures to the lessor at the expiration of the lease, with a proviso for re-entry for breach of any of the covenants. On the 25th of April last, Burrell, during the temporary absence of the plaintiff's servant who had charge of the premises, re-entered under the proviso, for alleged breaches of covenant, in omitting to repair and paint, removing fixtures, and not paying rates, and put padlocks on the gates and outer door. The plaintiff thereupon came to the premises accompanied by several men, and attempted to force their way in; whereupon the defendants gave the plaintiff in charge to a police-constable who was present when the attempt was being made, and who carried him to the police-station, where he was charged by the defendants with "wilfully breaking off some locks from some doors in Catherine Wheel Yard, Great Windmill Street." The justification, so far as related to the non-repair, removal of fixtures, and non-payment of rent, failed; but it was proved, on the part of the defendants, that, at the time the defendant Burrell re-entered, two poorrates were payable in respect of the premises, though there was no evidence of their having been demanded of the plaintiff. It was thereupon contended, on behalf of the defendants, that, Burrell being lawfully in possession, the defendants were justified, under the circumstances, in giving the plaintiff into custody, by the metropolitan police act, 2 & 3 Vict. c. 47. s. 54. div. 10. and s. 66. (a) In leaving the case to the jury, the chief justice said, that breaking locks or breaking the peace in the presence (a) The 54th section enacts "that every person shall be liable to a penalty not more than 40s., who, within the limits of the metropolitan police district, shall, in any thoroughfare or public place, commit any of the following offences, that is to say," (amongst others) Div. 10. "Every person who, without the consent of the owner or occupier, shall affix any posting-bill or other paper against or upon any building, wall, fence, or pale, or write upon, soil, deface, or mark any such building, wall, fence, or pale, with chalk or paint, or in any other way whatsoever, or wilfully break, destroy, or damage any part of any such building, wall, fence, or pale, or any fixture or appendage thereunto, or any tree, shrub, or seat, in any public walk, park, or garden,"-" And it shall be law ful for any constable belonging to And s. 66. enacts "that any 1851. DAVIS v. BURRELL. 1851. DAVIS v. BURRELL. of the constable, would authorise the latter to take the plaintiff; but that here the constable did not seem to have acted of his own authority, but under the direction of the defendants, and therefore the question would be whether or not Burrell was lawfully in possession. "Then," said his lordship," was Burrell in possession? The defendant's counsel says there are three ways in which he may have been so under the proviso for reentry, for non-repair,-for non-payment of rates,-and for not painting. The plaintiff has covenanted to yield up the fixtures to the defendant Burrell at the end of his lease, and he has removed some; but the court of Common Pleas has held that such removal gives no right of re-entry, for, they may be restored before the expiration of the term; and I shall hold so: but fixtures may be so carelessly and improperly removed as to amount to a breach of the covenant to repair. If you find want of repair, the defendant had a right to enter; he would then be lawfully in possession; and in that case I shall direct a verdict for the defendants on the general issue, under the 2 & 3 Vict. c. 47. So, if you find that the rates were in arrear. As to the second plea, the question is, was the plaintiff on the premises making a noise and disturbance. As to the painting, it is not in my opinion a continuing covenant; but it is better to have your opinion upon it." The jury found that the premises were sufficiently repaired and painted; but that the rates were in arrear, and that the plaintiff was there creating noise and disturbance; and they assessed the damages contingently at 51. The chief justice then said,-"I think, that, as the rates were in arrear, the defendant Burrell was entitled to enter, that he was therefore properly in possession, and entitled to a notice of action. The verdict must be entered for the defendants on the general issue." Prentice now moved to enter a verdict for the plaintiff with 57. damages, or for a new trial, on the ground of misdirection. There was no proof that the rates had been demanded; and, until demand and refusal, there could be no breach of covenant. In Hurrell v. Wink (a), in replevin for taking the plaintiff's goods, the defendant avowed, as overseer of the poor, under the 43 Eliz. c. 6., by virtue of a warrant of distress for 104l. 17s. due for several rates, one of which had been quashed on the ground that the plaintiff was not an occupier within the parish where he was rated; and it was held, that, as one of the rates was quashed, the warrant was void, and that the precise sum due for poor-rates should have been demanded from the plaintiff previously to the issuing of such warrant. [Cresswell, J. All that that case decides, is, that there must be a demand of the precise sum due, before the rate is distrained for. Jervis, C. J. How can the omission of the collector prejudice the landlord?] There could be no default until demand. [Jervis, C. J. The rate was due and payable when it was published at the church. Cresswell, J. A demand is only necessary, to justify a distress.] Burrell's possession was not obtained in a lawful manner. In Newton v. Harland (b), it was held, that, where a tenant remains in apartments after the expiration of his term, the landlord is not justified in forcibly asserting his right to the possession, by expelling him. [Cresswell, J. The doctrine of that case has been very much questioned.] JERVIS, C. J. The question resolves itself into one of fact. If the rates were due, and were not paid, the defendant Burrell was lawfully in possession of the premises at the time the plaintiff made the forcible attempt (a) 2 J. B. Moore, 417., 8 Taunt. 369. (b) 1 M. & G. 644., 1 Scott, N. R. 474. 1851. DAVIS บ. BURRELL. |