SANDFORD NEYILE, ESQ. OF THE INNER TEMPLE, AND WILLIAM M. MANNING, ESQ. OF LINCOLN'S INN, BARRISTERS AT LAW. VOL. I. LONDON: PRINTED FOR S. SWEET, 3, CHANCERY LANE; A. MAXWELL, 32, Law Booksellers and Publishers: AND MILLIKEN AND SON, GRAFTON STREET, Dublin. 1832. DOE v. same month the defendant was served with a declaration in ejectment. An order was obtained for the delivery of the particulars of the breaches of covenant in respect of BRINDLEY. which the ejectment was brought. The lessor of the plaintiff stated two breaches: first, that the tenant had not repaired the premises generally; secondly, that he had not kept them insured from fire, pursuant to the said lease. That cause came on for trial on the 12th March, 1852, at the spring assizes for the county of Kent, when, by the consent of the parties, an order was made by the Court that a juror should be withdrawn, and that the defendants should put the mills into repair on or before the 24th June, 1832, such repairs to be made to the satisfaction of Larkin and Simpson, and if they differed in opinion, then to the satisfaction of an umpire. On the 28th of March, the lessees paid to the lessor of the plaintiff a quarter's rent, which had become due on the 25th of March. The premises were not put into repair to the satisfaction of the referees, and on the 2d of July the declaration in the present action of ejectment was served, entitled, "Thursday, 28th June, in Trinity term, 2 Will. 4." An order for delivery of particulars of the breaches complained of in the second action was obtained, and the breach assigned by the lessor of the plaintiff was, the not repairing within three months after notice, pursuant to the proviso in the lease. A verdict having been found for the plaintiff, Thesiger now moved for a rule nisi for a new trial, on two grounds; first, that another notice to repair was necessary; and secondly, that the action was not well brought under the 1 Will. 4, c. 70, s. 36. It is clear, that notice to put the premises in repair was necessary. The plaintiff, by consenting to the order of the Court, when the first ejectment was tried, that a juror should be withdrawn, waived the notice which he had previously given. The order of Court, by substituting new terms of agreement, superseded the notice. The case resembles that of Doe v. Meux. (a) By analogy to that case, this ejectment could not be maintained during the existence of an order of Court. A new notice to repair was therefore necessary. The acceptance of rent only a few days before the time at which the notice would expire, must be considered as a waiver of the notice and an abandonment of any right of re-entry then accrued. Secondly, the notice, if good, expired on the 6th of April; the right of entry therefore accrued on the 7th of April, which was before the commencement of Trinity term. This case therefore is not That statute applies only within 1 Will. 4, cap. 70, s. 36. PARKE, J.-There is no ground for granting a new trial upon either point. Notice to repair was given on the 6th of January. If the premises were not put into repair by the 6th April, the landlord had a right of re-entry, and not before that time. The first ejectment could not therefore have been supported for the breach of the covenant to repair. That ejectment was determined by the order of Court. The case is the same as if the defendant had agreed to repair the premises before the 24th of June. That agreement not having been complied with, the parties are in the same situation as if no action had been brought, and they are at liberty to bring another ejectment. The receipt given on the 28th of March for rent due on the 25th, cannot be construed into a waiver of the notice, which did not expire until the 6th day of the following month; for at the time the rent became due, the right of entry had not accrued. The second objection cannot be taken at nisi prius or under the general issue, as it is merely an objection to the regularity of the proceedings. TAUNTON, J.-The order of Court did not supersede the notice to repair, but merely enlarged the time during (a) 4 B. & C. 606; 7 D. & R. 98. 1832. DOE v. BRINDLEY. 3 LIBRARY OF THE LELAND STANFORD, JR., UNIVERSITY LAW DEPARTMENT. A.56115 JUL 15 1901 LONDON: PRINTED BY C, ROWORTH AND SONS, BELL YARD, TEMPLE BAR, JUDGES OF THE COURT OF KING'S BENCH, During the period comprised in this volume. CHARLES Lord TENTERDEN, C. J. Succeeded by Sir THOMAS DENMAN, Knt. Sir JOSEPH LITTLEDALE, Knt. Sir JAMES PARKE, Knt. Sir WILLIAM ELIAS TAUNTON, Knt. Sir JOHN PATTESON, Knt. N.B. LITTLEDALE, J. sat in the Bail Court in Michaelmas Term; PARKE, J. in Hilary Term; and PATTESON, J. (TAUNTON, J. being indisposed,) in Easter Term. ATTORNEYS-GENERAL. Sir THOMAS DENMAN, Knt. SOLICITORS-GENERAL, Sir WILLIAM HORNE, Knt. |