The cause was afterwards referred. Onslow, serjeant, and Manley, for the plaintiff. Best, serjeant, for the defendant. [Attornies, Holland and Guy.] 1815. HOLLAND v. JOURDINE. If after action brought, and before declaration, the defendant offers to pay debt and costs, and the plaintiff refuses to receive it, the Court will permit the defendant to pay into Court the debt and the costs up to the time of his offer only. And the plaintiff will be compelled to pay the costs of the application, and all costs in the action subsequent to the offer. Zeevin v. Cowell. 2 W. P. Taunt. 203. In the same manner, if after action brought, and before money can regularly be paid into Court, a tender is made of a sum for damages, with costs up to that time, and re fused, the Court will, on motion, permit that sum to be paid into Court, and struck out of the declaration, and will order all subsequent costs to be paid by the plaintiff, although the plaintiff goes for other causes of action than those on which the sum is tendered. Roberts v. Lambert. 2 W. P. Taunt. 283. HORSEFALL V. MATHER. June 15. THIS was an action of assumpsit brought Tenant at will is not li. against the defendant, who had been tenant able to general repairs; he is bound to use the premises from year to year to the plaintiff, for dilapidations and injury to the premises recently in his occupation. The declaration stated, that in congi- but no farther. in a husband like manner, 1815. HORSEFALL 2. 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 tenantMATHER. able 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. 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 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. 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. 1815. HORSEFALL v. MATHER. Quære, whe ther a gift of a chattel, not in SPRATLEY V. Sir H. WILSON, Knt. TROVE ROVER for a watch: plea, the general issue. The defendant was the executor of a gentleof the donor at man of the name of Wright, who, in his life-time, the possession the time of making the gift, will so pass the property therein, as to entitle the donee, who had lodged with the plaintiff. The day immediately preceding his death, whilst the plaintiff was at his bed-side, he said to her, "I have left a watch at Mr. R's, at Charing-cross; fetch it away, and I will make you a present of it." sion, to main- The defendant had obtained the watch after the death of Mr. Wright, and this action was brought to recover it. has never ob tained posses tain trover against the ex ecutor of the donor. If A. on his death-bed, desire B. to call at a certain place, and Best, serjeant, for the plaintiff, relied on a passfetch away a age in Brookes' Abridgment-Trespass, 303, in watch, adding, which it is stated, if A. give a thing to B., which "that he will 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 a donatio mortis causa. maintain is at York, and a stranger take it, B. 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, Pocock and Burley.] 1815. SPRATLEY V. WILSON. |