England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF CHANCERY

33 ER 1037

1st, 2d March 1810

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HILL

-v-

BARCLAY

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Judgment
 


The Plaintiff was tenant for years under the Defendant; with covenants to lay out £150, within a given time: to keep the premises in repair; to leave them in repair at the end of the term; that it should be lawful for the Defendant twice in the year to enter, and survey the premises; and to require the necessary repairs to be done within three calendar months; and a right of entry was reserved upon breach of any of the covenants.

An Ejectment being brought by the landlord, assigning various breaches of the covenant to repair, a motion was made for an Injunction.

Sir Arthur Piggott, Mr. Richards, and Mr. William Agar, in support of the Motion. Sir Samuel Romilly and Mr. Wingfield, for the Defendant. The late case of Sanders v. Pope,^[1] and the cases there referred to, were cited: the Counsel for the Defendant insisting upon the distinction, appearing to have been taken in Wadman v. Calcraft (10 Ves. 67); which case, it was contended for the Plaintiff, does not, at least by the decision, affect this question: the relief being confined to the breach of covenant by non-payment of rent: the Statute (stat. 4 Geo. II. c. 28, s. 2) on the same account being equally inapplicable.

The Lord Chancellor [Eldon]. With regard to the case, decided by Lord Erskine, upon a covenant to lay out £200 in repairs within a given time, it would not become me at present to say more than that I am inclined to think, considerable arguments may be urged against the relief, given in that instance. The Judgment, delivered by Lord Erskine, which is the more valuable, as he comments upon all the cases, that were cited, goes a length (extra-judicial certainly, the circumstances not calling for it), which would reach this case: a general covenant to repair. As to the case of Wadman v. Calcraft, the particular circumstances did not require me or the Master of the Rolls, to state the opinion, that we did state in substance, though shortly, upon the doctrine, which must be applied to the case now before me; that a Court of Equity would not relieve against a breach of a general covenant to do repairs: the relief being sought upon no other ground than an ejectment, brought upon the clause as to non-payment of rent.

As to the circumstances of this case, besides the general covenant to keep the premises in repair, and to leave them in repair at the end of the term, the landlord under the other distinct covenant had right to enter upon any two days of the year he thought fit, whether the worst or the best time for doing repairs; to require the necessary repairs to be done within three calendar months; with a right of entry upon breach of either of those distinct covenants: the one, to repair, generally: the other, according to requisition. That requisition might have been made in February 1809; when the tenant was living: but the landlord was under no obligation to make it; as, without taking that remedy, he might have maintained an ejectment; assigning, as a breach, the fact, that the premises were out of repair. The Particular delivered has no reference to a breach of the covenant to repair according to requisition upon entry; but goes upon the general want of repair; not adverting to that particular covenant; and the principle, upon which the motion is made, admits, that the landlord can recover at Law.

The first difficulty upon the cases decided is, that, the Plaintiff proposing to give Judgment at Law, without giving me more information, I shall not know, when the application may be made hereafter to stay execution, whether the recovery was for not mending a window, or for the utter ruin of the premises; if all the breaches, stated in the Particular, should be proved. There is no ground for relieving a tenant, whose conduct with reference to his covenant has been gross and ruinous, that the landlord may be placed in the same situation by afterwards putting the premises in sufficient repair. How can it be ascertained, that the subsequent repairs do put the landlord in the same state? That sort of speculation therefore has never been considered as affording a ground for relief. The object of such a covenant is, that the landlord shall have that species of security, which is the result of keeping the premises from time to time in that state, which the covenant requires.

Before I interfere therefore to stay the execution, I must have an admission of the state of the property; which forms the right of the landlord under this instrument to recover the possession of the premises.

The next consideration is, what is to be done, supposing I knew the facts; disposing of this upon a mere motion; and finding this case of Sanders v. Pope; and I confess, I entertain great doubt upon the subject. See how it stood before that decision. The Statute (stat. 4 Geo. II. c. 28, s. 2) determines no case except that of rent; upon which relief is given at law, as well as in equity; and the Statute expressly excludes any farther relief in Equity. The relief in that case of rent is given perhaps upon too loose a ground: viz. payment with interest; which by no means puts the party in exactly the same situation as if the rent had been paid at the time stipulated: that doctrine of a Court of Equity being contradicted by general experience. The situation of the landlord is however very different as to rent and as to these other covenants. He may bring an ejectment upon non-payment of rent: but he may also compel the tenant to pay the rent. He cannot have that specific relief with regard to repairs. He may bring an action for damages: but there is a wide distinction between damages and the actual expenditure upon repairs, specifically done. Even after damages recovered the landlord cannot compel the tenant to repair: but may bring another action. The tenant therefore, standing those actions, may keep the premises until the last year of the term; and from the reasoning of one of the cases (Hack v. Leonard, 9 Mod. 91) the conclusion is, that the most beneficial course for the landlord would be, that the tenant, refraining from doing the repairs until the last year of the term, should then be compelled to do them.

The difficulty upon this doctrine of a Court of Equity is, that there is no mutuality in it. The tenant cannot be compelled to repair. This Court, according to Lord Thurlow's opinion, would not entertain a Bill for that purpose (see Mosely v. Virgin, 3 Ves. 184, and the references); and is the tenant to have the option, against the will of the landlord, of keeping the lease upon those terms; from time to time breaking the covenant, which he cannot be compelled to perform; and avowing, that he will not fulfil his obligations? Even with regard to a covenant to lay out a sum of money within five years, how can I estimate, whether, if laid out in the sixth year, that will be equally beneficial to the landlord? As to the old cases, it is very difficult to know what to do with them. In Webber v. Smith (2 Vern. 103; 1 Eq. Ca. Ab. 115, pl. 14) both Reports represent the relief to be upon undertaking to do the repairs. How the relief was actually to be given, what became of it, we are not informed. Probably nothing more was done. This is a very dangerous jurisdiction. Very little information upon it is to be collected from ancient cases; and scarcely any in modern times. At least, I must, before I stay the execution, know the fact, what was the state of these premises, and their want of repair, when the ejectment was brought. Taking it, that all these breaches of covenant assigned were proved, there is no ground for relief. If, the premises having been suffered to fall much out of repair, and the landlord making the requisition to repair, the tenant refused to comply, I cannot perceive any pretence for applying to a Court of Equity (18 Ves. 56).

Note 1   Sanders v. Pope, 12 Ves. 282. See the notes, 10 Ves. 70; 3 Yes. 693.    [Back]