1840. CLOW V. BROGDEN. respect of which this action was brought, the defendants are not liable for damages for the loss of the term in question. Channell Serjt., for the plaintiffs. This case will be simplified by considering only three terms, namely, first, the term for ninety-nine years granted in 1783, the reversion in fee being in the Somers family; secondly, that for ninety-four years wanting twenty days, the residue of which was vested in the plaintiffs and Rebekah Bird at the time that the lease of twenty-one years was granted to the defendants, and two others whom they have survived; and, thirdly, the last mentioned lease. Under that lease the defendants were entitled to the possession of the premises for twenty-one years, paying the rent, and performing the covenants therein reserved and contained. The plaintiffs, on the other hand, were entitled to the rent, and to the reversion expectant on the determination of the lease. This is therefore an ordinary case between landlord and tenant. The plaintiffs complain that, by reason of the breach of covenant by the defendants, Lord Somers, the reversioner in fee, became entitled to sue for a forfeiture, and that he brought an ejectment, under which he recovered judgment, and thereby (a) destroyed their interest in these premises. It is not disputed that Lord Somers recovered possession of the property; but it appears, on reference to the particulars delivered in the ejectment, that Lord Somers brought his action for all the premises comprised in the original lease, and for breach of other covenants, besides the covenant to repair. It seems also that there were dilapidations in other houses distinct from those in question, and that a breach of one of the covenants, namely, not to alter the boundaries of the property, was not brought home to the defendants. (a) Vide note A, at the end of this volume. The first objection made by the defendants is, that the plaintiffs have lost no term which was vested in them and Rebekah Bird, the term in question having, by virtue of Joseph Bird's will, vested in the plaintiffs alone. It will be said that very slight circumstances will induce the court to assume that the plaintiffs, as executors, and Rebekah Bird as executrix, assented to the bequest to the plaintiffs as trustees for the testator's daughter; and that the fact stated in the case, namely, that the daughter received the rents, is equivalent to a receipt of the rents by the plaintiffs themselves. The question is whether, upon the pleadings, this objection is open to the defendants. [Tindal C. J. The breach is, that the defendants did not repair, by reason whereof all the estate and interest of the plaintiffs and Rebekah Bird in the demised premises became forfeited.] It will be said that, beyond the breach, the plaintiffs have alleged special damage, which they must prove; that they have stated the term forfeited to be the plaintiffs and R. Bird's, whereas it belonged to the plaintiffs. If the objection may be taken, the court will be asked to amend under the power given to them by the special case. [Tindal C. J. The objection arises on the per quod; it is not a part on which a traverse can be taken; the question is, whether it may not be rejected. Maule J. It is not stated that the dilapidations were in Rebekah Bird's lifetime. Tindal C. J. There is no traverse of the allegations in the declaration, the only traverse being of the breach of the covenant to repair. If there had been a traverse, that the plaintiffs and R. Bird were possessed of the term, then the objection would have been available. Is this an objection that could have been made at nisi prius, when the jury were only sworn to try the question of repairs?] It is submitted that this objection is not open to the defendants; but if so, that the court may amend or otherwise reject the part as surplusage. 1840. CLOW V. BROGDEN. 1840. CLOW ย. BROGDEN. The second objection is, that inasmuch as the term, in whomsoever vested, has been determined, the plaintiffs can only recover nominal damages. It is difficult to see how that circumstance can interfere with the right of the plaintiffs to recover the amount of the dilapidations. There may be some pretence for saying that the plaintiffs ought not to recover the 300%., the value of the term, inasmuch as the forfeiture was incurred, as well by the breach by other parties of other covenants, as by the breach of the covenant to repair committed by the defendants; but there seems no reason at all, when the acts of the defendants have at least been assisting in producing the forfeiture, that the plaintiffs should be prevented from recovering for the dilapidations. [Maule J. Is it stated that the defendants had notice of the lease from Lord Somers, and of the covenants it contained ?] No; but the covenants to repair in that lease and in the underlease to the defendants, are substantially the same. [Tindal C. J. There is this difficulty in the way of the plaintiffs. In the particulars delivered in the ejectment brought by Lord Somers, it appears that the action was brought for a forfeiture caused by a breach of a covenant which is not contained in the lease to the defendants. How are we to know that Lord Somers did not recover in respect of that breach alone?] A surveyor was called, who proved the dilapidations in the house held by the defendants. [Tindal C. J. But he would also prove that the boundaries of other houses had been altered. How can we tell on which breach of covenant the jury founded their verdict? It certainly does seem a harsh measure, that a party is to be held liable without knowing whether his landlord is seised in fee or only holds the property under a term containing covenants of which he knows nothing. I do not, however, say that he is not liable.] Here, the defendants knew that the plaintiffs were themselves only lessees. [Tin dal C. J. But they might have a reversion of only a day beyond the extent of the underlease. Bosanquet J. You must say, that where there is other property included in the original lease, the tenant is answerable for the value of the whole of the property which is forfeited by his act.] TINDAL C. J. We will give no opinion on this part of the case, for the difficulty is thrown on the plaintiffs of shewing that the forfeiture was caused by the acts of the defendants. This the plaintiffs are unable to do, which affords the court ground enough for saying that they are not entitled to recover from the defendants the sum they claim in respect of the loss of their term. Allan (Wilde, Solicitor-General, was with him,) for the defendants. With respect to the claim for dilapidations, the plaintiffs are only entitled to nominal damages; for while the lease was in existence the plaintiffs were not prejudiced by the house being out of repair, since it might have been completely restored before the expiration of the term. (a) [Tindal C. J. According to that argument, damages for dilapidations never could be recovered. If there is an existing term, it is very difficult to say that a landlord is not prejudiced by a house being out of repair. If he wanted to sell it he could not get so good a price for it.] That might be ground for special damage. [Coltman J. You say here that the term having expired, the plaintiffs have sustained no damage.] In Vivian v. Campion (b), the plaintiff, as heir, declared that his ancestor, by indenture, demised to a party who assigned to the defendant, and who covenanted to repair, and to leave in repair, and, for breach, assigned that on a certain (a) Sed vide Luxmore v. Robson, 1 B. & Ald. 585. (b) 1 Salk. 141. S. C. 2 Lord Raym. 1125. 1840. CLOW V. BROGDEN. 1840. CLOW บ. BROGDEN. day, and for ten years before, the premises were out of repair. After verdict for the plaintiff, it was moved, in arrest of judgment, that part of the ten years occurred in the life of the ancestor. But Holt C. J. said, "If the premises were out of repair in the time of the ancestor, and continued so in the time of the heir, it is a damage to the heir, and the jury gives as much in damages as will put the premises in repair; but here no damages are given in respect of the length of time they continued in decay, but in respect of what it will cost, at the time of the action brought, to put the premises in repair, therefore per decem annos was frivolous; and he said that this was not a hard action; and good damages are always given in these cases, because the damages recovered ought to be applied to the repair of the premises. [Tindal C. J. That case is frequently cited to shew that a covenant to repair is a continuing covenant. Was not the lease there still subsisting? Maule J. It must have been so; for Lord Holt says, that it was not a hard action; as the damages ought to be applied in repairing the premises, evidently meaning that the lessee would get the benefit of the repairs.] TINDAL C. J. I see no reason why the plaintiff's should not recover in this action the sum of 297., the amount agreed upon as the damages for the dilapidations caused by the breach of the covenant to repair entered into by the defendants. The answer set up is, that the plaintiffs have sustained no actual damage, because (partly, at least, by the default of the defendants,) the term in the premises has been determined. I think that it does not lie in the mouths of the defendants to make such an objection. But, independently of that, I am not convinced that the objection is reasonable; for the plaintiffs may be answerable over to the superior landlord, for the amount of these damages; and I see no |