alleged to have been sustained from a possible contingency. Supposing a lady to have been injured and disfigured in a railway accident, she could not say that she ought to recover damages because she was prevented from going to a ball, at which she might have met a rich husband. Evidence rejected. 1860. PRIESTLY V. MACLEAN. Coram Willes, J. SCALES v. LAWRENCE. Michaelmas On a covenant, cessary well and sufficiently cleanse, &c., as often as ne to repair, COVENANT by tenant, so often as need should require, well and sufficiently to repair, uphold, sustain, paint, glaze, cleanse, scour, &c. a house and premises, with all needful reparations and cleansings, and to leave the premises in such repair, reasonable wear and tear excepted. Breach leaving them not so repaired, upheld, &c. with repair, reason all needful reparations. Plea payment into Court of 301. Replication, that this was not enough. Issue (a). Hawkins and Holl for the plaintiff. Petersdorff, Serjt., for the defendant. and The house, which contained three sitting-rooms and four bed-rooms, with kitchens, stable, outhouses, &c., a large garden and field of some extent, inclosed in a fence, had been let to the defendant in 1852 for seven years, at a rent of 501. a year. He laid out a considerable sum on entering, and had also laid out 127. in 1858. The plaintiff called surveyors to show that the estimate for the requisite repairs on the defendant's leaving was 661. But it appeared that this included repapering, and it did not appear that the old paper was more than dirtied. (a) Vide Robinson v. Harman, 1 Exch. 850, and Finlason's C. L. P. Acts, Edit. 1860, p. 91. and keep and leave in such able wear and tear excepted, the tenant, if he has repaired within a reasonable time before leaving, is only bound, in addition to the repair of actual dilapi dations, to clean the old paint, &c., and not to repaint, &c. 1860. SCALES บ. LAWRENCE. WILLES, J., held, that this, not being expressly mentioned in the covenant, was not comprised within its terms, as it was mere matter of ornament. The utmost that could be included was the cost of replacing such portions of the paper as might be absolutely torn off. With regard to the painting, the plaintiff gave evidence that it was usual to paint the inside once in seven years, and the outside once in three years. It was admitted that the whole had been painted in 1853, and that there had been some repairs in 1858. Holl, for the plaintiff, contended that this made no difference, and that the tenant did not perform his covenant merely by repairing the premises when he entered, if when he left them they were not in a good condition. On the part of the defendant, the plaintiff's witnesses were cross-examined as to the age of the house, which it appeared was 150 years old, and also as to its general condition when defendant entered, when it appeared that it was rather out of repair; and there was evidence as to its being in as good a condition when he left, reasonable wear and tear excepted, as it could be after between six and seven years' use. The money paid into court was proved to be ample enough to cover all that could be considered as dilapidations. The question was entirely as to the degree of repairs required. WILLES, J. (to the jury).-You are to decide the question with reference to the terms of the covenants and the general character and condition of the premises when the defendant entered. By the covenant the defendant was bound to do the things specially mentioned, and also all that was necessary to leave the house in a good condition, with reference to the obligation of a tenant. As to that, you must consider the character and condition of the house; thus, if he takes an old house, he must not let it tumble down, he must keep it up; but only as an old house. No tenant is bound to leave, for his landlord, a new house; but the house which he took, in a state of fit repair, as such house. And if he has painted the outside in three years, and the inside within seven years, he is not bound to do it again when leaving, unless so far as is required by actual dilapidations or destruction of the paint; and so of other repairs. He may, if he likes, have the benefit of his repairs, so as he leaves the premises in a fit state, reasonable wear and tear excepted. If he painted and papered within seven years, and there is no damage in the way of breaking down or tearing off, then the reasonable construction of the covenant is, that he should "cleanse" the old paint, &c. (or renew it only where destroyed), and give up the house in a clean and fair condition, and for fair wear and tear he would not be liable. Questions of this sort are questions of fact for you, to be decided on what are the substantial merits of the case rather than on strict rights or extreme law. The landlord is not to claim for every crack in the glass or every scratch on the paint. The reasonable rule probably would be not to charge for a pane of glass merely with one crack in it, and so forth. Such covenants must not be strained, but reasonably construed, on the principle of "give and take.” Verdict for the defendant. 1860. SCALES v. LAWRENCE. PELL v. ADDISON. Michaelmas Term. ACTION by an incumbent against the executors of a An action for deceased incumbent for dilapidations in the chancel of the non-repair, the parish church. Plea: payment of 701. into Court. Replication, that this was not enough. Issue. payment into Court, and the only question as to the sufficiency of the amount, turning merely on the facts, is fit to be referred to arbitration under the C. L. P. Act, 1854, s. 3. 1860. PELL 2. ADDISON. Griffits for the defendant. It appearing that the only question was as to the degree or amount of repair requisite in the condition of the chancel, and a question arising as to the rule of law upon that subject, WILLES, J., said, the case of Wise v. Metcalfe (a), which is considered as laying down the law on the subject, really does not settle it. It does no more than decide that the repairs are to be more than such as a tenant not under covenant to repair is bound to do, and less than what a tenant under such a covenant is bound to do. The reasonable rule is, perhaps, to put the edifice into substantial repair, without ornament. This is a fit case for a reference to arbitration under the Common Law Procedure Act, 1854, sect. 3, as a mere "matter of account." It is just the kind of case mentioned by the Common Law Commissioners as an illustration; viz., an action for non-repair of a building, the question being only as to amount. Sitting at chambers, I should not have hesitated to order the action so to be referred, nor shall I hesitate to do so now (b), unless the parties agree together to a reference. The parties then agreed to refer. (a) 10 B. & C. 299. take retained in the marginal note. Vide Finlason's C. L. P. Acts, Edit. 1860, p. 168. And it has also been held, that an action technically for unliquidated damages may be so referred. Ibid. Coram Erle, C. J. (a). MACNABB v. JOHNSON AND ANOTHer. 1860. Michaelma's Term. THIS was an action to recover a sum of 781. for alleged Without a plea of immorality, arrears of wages due from the defendants as executors of defendant will one Peel, deceased. The declaration contained indebitatus not be allowed to give that counts for work and services, money lent and accounts fact in evistated. Plea: never indebted. The plaintiff was examined and stated, that Peel had engaged her as a housekeeper at wages of 187. per annum, and that the amount claimed in the action was due. Ballantine, Serjt., for the defendants, began to crossexamine the plaintiff on the circumstances attending her engagement and service, with a view to show that she really was engaged as a mistress, and cohabited with Peel as such. Tozer, Serjt., for the plaintiff, objected. This is not relevant to the issue; there is no plea that the contract was invalid on the ground of its immoral nature; the sole question here is, if the agreement in question was made. ERLE, C. J.-That is so, but I think it is competent for the defendants to put in evidence all the circumstances as tending to impeach the general credit of the plaintiff. I shall direct the jury, however, that it is not competent to them to find for the defendants, on the ground of the immorality of the contract, there being no such plea on the record. Verdict for the defendants. Tozer, Serjt., and Hume Williams for the plaintiffs. (a) This and the following cases are reported by F. Philbrick, Esq. dence as avoiding a contract, but may do so to impeach the plaintiff's credibility. |