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The cause was afterwards referred.

1816.

HOLLAND

Onslow, serjeant, and Manley, for the plaintiff.

v.

JOUBDINE.

Best, serjeant, for the defendant.

(Attornies, Holland and Guy.]

If after action brought, money can regularly be paid and before declaration, the into Court, a tender is made defendant offers to pay debt of a sum for damages,, with and costs, and the plaintiff re- costs up to that time, and

rea fuses to receive it, the Court fused, the Court will, on mowill permit the defendant to tion, permit that sum to be pay into Court the debt and paid into Court, and struck the costs up to the time of his out of the declaration, and will offer only. And the plaintiff order all subsequent costs to will be compelled to pay the be paid by the plaintiff, al. costs of the application, and though the plaintiff goes for all costs in the action subse. other causes of action than quent to the offer. Zeevin v. those on which the sum is ten. Cowell. 2 W. P. Taunt. 203. dered. Roberts v. Lambert.

In the same manner, if after 2 W. P. Taunt. 283. action brought, and before

HORSEFALL V. MATHER.

June 15.

THIS

HIS was an action of assumpsit brought Tenant at

against the defendant, who had been tenant able to general from year to year to the plaintiff, for dilapidations bound to use

repairs; he is and injury to the premises recently in his oopp- in a husband. pation. The declaration stated, that in congi- ble no fariner.

1815.

HORSEFALL

deration that the defendant had become and was tenant to the plaintiff of a certain messuage, &c. he undertook to keep the same in good and tenantable repair; to uphold and support, and to deliver up the same to the plaintiff at the expiration of his term, in the condition in which he received it.

MATHER.

It appeared that the defendant had occupied the house about three years at a rack rent. It was in good repair when he entered it; but, upon quitting possession, he had in some degree damaged the ceiling, the walls, and other parts of the house, by removing the shelves and fixtures, and had not left the house in a good tenantable condition. The plaintiff had been put to some small expence in refitting it for the occupation of a new tenant. The plaintiff gave no other evidence than the occupation of the premises by the defendant.

Lens, serjeant, for the plaintiff, contended, that there was a general assumpsit in law, founded in the relation of landlord and tenant, that the latter should keep the premises in tenantable condition; and that this obligation attached upon a tenant from year to year, or a tenant at will. He relied upon Ferguson v. Black. 2 Esp. N. P. 590.

Best, serjeant, contrà. The declaration states the implied assumpsit in terms too large. This is an extensive obligation, which, in the absence of a specific contract, does not result from the relation of landlord and tenant. An implied promise to conduct himself as a good tenant is very different

1815.

from an implied promise to keep premises in repair, to uphold and maintain them, and to surrender them, at the expiration of the tenancy, in that condition.

HORSEFALL

MATHER.

Gibbs, C. J.--I am of opinion that the plaintiff is not entitled to recover. He has laid his ground too broadly. The defendant is answerable to some extent, but not to the extent stated in the declaration. Can it be contended that a tenant at will is answerable if premises are burned down-would he be bound to rebuild if they became ruinous by any other accident ? And yet, if bound to repair generally, he might be called upon to this extent. He is bound to use the premises in a husbandlike manner; the law implies this duty and no more. I am sure it has always been holden that a tenant from year to year is not liable to general repairs.

Plaintiff nonsuited.

Lens, serjeant, and Stanley, for plaintiff.

Best, serjeant, for defendant.

[Attornies, Geldard and Wells.]

The Lord Chief Justice cited lord and tenant is a sufficient a MS. case, on the Western

consideration for the tenant's Circuit, in which Mr. Justice promise to manage a farm in Buller had expressed the same a husbandlike manner. Poreley opinion.

v. Walker. 5 Term Rep. 373. The mere relation of land. Although an action on the

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1815. case may be maintained against part of the premises are suf

a tenant for commissive or fered to be dilapidated, it HORSEFALL wilful waste, no action can be

amounts to permissive waste; MATHER,

maintained for permissive waste and if this action be maintain. only. Gibson v. Wells. 1 New able, such an action might be Rep. 291. In this case, Sir brought against a tenant at James Mansfield, C. J. says, will, who omitted to repair a c. There is no doubt but an broken window. I think this action on the case may be action is an innovation, and I maintained for wilful waste ; am not disposed to encou. but at common law, if any rage it.”

June 15.

SPRATLEY v. Sir H. Wilson, Knt.

TROY

Quære, whe

VROVER for a watch : plea, the general issue. ther a gift of a chattel, not in

The defendant was the executor of a gentlethe possession of the donor at man of the name of Wright, who, in his life-time, the time of making the had lodged with the plaintiff. The day immegift, will so

diately preceding his death, whilst the plaintiff pass the property therein, was at his bed-side, he said to her, “I have left the donee, who a watch at Mr. R-'s, at Charing-cross ; fetch has never obtained posses.

it

away, and I will make you a present of it.” sion, to main. The defendant had obtained the watch after the tain trover against the ex- death of Mr. Wright, and this action was brought ecutor of the donor. to recover it.

If A. on his death-bed, de. sire B. to call at a certain Best, serjeant, for the plaintiff, relied on a passplace, and fetch away a

age in Brookes' Abridgment—Trespass, 303, in watch, adding, which it is stated, if A. give a thing to B., which then make her a present of it;” but no possession is resumed by A. and no delivery made to B. Quære, if this would be good as donatio mortis causa.

1815.

is at York, and a stranger take it, B. may

may maintain trespass for it. He took the distinction: if a man be in possession of a watch at the time he gives it, unless he hands it over, it will not pass to the donee.

SPRATLEY

WILSON.

Lens, serjeant, contrà. In the case in Brookes, trespass might well be maintained, because trespass can be maintained upon a special property against a wrongdoer ; but the case does not go to the extent, that the original owner, or those who represent him, might not reclaim the gift by an action of trover.

Upon further enquiry it appeared, that at the time of the gift, Mr. Wright was sensible of approaching death.

GIBBS, C. J.-I will not determine whether a personal chattel can pass by this mode of gift. It is not necessary to the present question. But is not this good as a donatio mortis causa? The donor has the apprehension of death upon his mind: I am inclined to think it good upon this ground. It is not, however, a case of frequent occurrence.

His Lordship directed the Jury to give a verdict for the plaintiff, and gave the defendant's counsel leave to move, if, upon inquiry, they thought there was any thing in the case.

Best, serjeant, and D. Pollock, for plaintiff.

Lens and Copley, serjeants, for the defendant.

[Attornies, Pocosk and Burley.)

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