defendants

s tecum, to had deli

s, and that

nts' attorneys; who, formation

Mr. Stew

d the posthe Lord ence of its

nisi for a mstances ce of the ness, and rence to

at which ent, and

endants

defendasmuch uld not

by the

e deed

ence to

d, and

of the

. Hayded, it bels of

• were at the

18

T

E

time of plea pleaded. The law is laid down in similar Exch.
terms in Whelpdale's case (a) (third resolution), and Mi-
chael v. Scockwith (b), that the question refers to the time
of pleading, whether plea or replication, and is whether the
instrument then exists as a deed. So in Fisher v. Ford (c),
where the plaintiff in covenant alleged as excuse for not
making profert, that the deed "being in the possession of
the defendant," the plaintiff was unable to produce it, a
plea that the deed "is not in the possession of the defend-
ant," modo et formâ, was held to apply to the time of
plea pleaded, and therefore to be insufficient. It is stated
in all the treatises on evidence, that non est factum puts in
issue whether the deed be the defendant's deed at the time
of pleading; 1 Phill. Evid. 133; 2 Stark. Evid. 376; and
the same rule must apply to subsequent pleadings. [Parke,
B. It would appear then that the replication is bad, be-
cause it ought to have shewn that the deed was not at any
time the deed of the plaintiffs.] That might have been
ground for a demurrer, but the only question now is, what
was the issue in fact. It is like the plea of nil debet be-
fore the new rules, under which, being in the present tense,
matter subsequent to the accruing of the cause of action
might be given in evidence.

Thesiger, contrà.-This question must undoubtedly be decided by the principles applicable before the new rules, which do not apply to replications and subsequent pleadings. But all the cases cited on the other side were cases of actions brought on the instrument itself. Until the decision in Read v. Brookman (d), it was necessary to make profert of every deed pleaded; and on non est factum, the plaintiff was bound to prove a deed in the state in which it must be produced to the Court. But since it has been

1843.

V.

EMLY.

Exch. of Pleas, admitted that profert might be excused on the ground that the deed was lost or destroyed, or that it was in the possession of the other party, or of a person by whom the party pleading it had no power to compel its production, Bolton v. Bishop of Carlisle (a), Bain v. Cooper (b), Dangerfield v. Thomas (c), the strict rule laid down in the old cases is no longer applicable. If, indeed, the party choose nevertheless to plead it with a profert, he must fail unless he produces the deed: Smith v. Woodward (d), Matison v. Atkinson (e), Whitfield v. Fausset (ƒ), Ex parte Greenway (g). But here the issue would have been supported by proof of the cancelled instrument. Cancellation by consent no doubt destroys a deed creating an interest inter partes: Shep. Touchst. 70, Dennis v. Payne (h); but although this may operate as an avoidance of the deed as between the parties to it, it may still be produced in evidence by a third party. In Bolton v. Bishop of Carlisle, the plaintiff must have been allowed to produce the cancelled instrument in support of his case. There are cases also to shew that a deed which has been improperly cancelled as against a party to it, may be considered, as against the canceller, as an existing deed: Beckrow's case (i), Woodward v. Aston (k). [Parke, B.-It is the deed of the parties in the sense in which the word is used in the plea.]

PARKE, B.-The cases which have been referred to certainly afford strong ground for supposing that the meaning of this replication is, that it is not the deed of the plaintiffs for the purpose of proving a release: and therefore that the issue is proved by the production of a deed

(a) 2 H. Bl. 259.

(b) 8 M. & W. 751.

(c) 9 Ad. & E. 292; 1 P. & D.

287.

(d) 4 East, 585.

(e) 3 T. R. 153, n.

(f) 1 Ves. sen. 389.

(g) 6 Ves. 812.

(h) March, pl. 165.

(i) Hetley, 138.

(k) 1 Ventr. 296.

that

osses

party Bolton

eld v. is no

rthe

pro

1843.

which has operated as a release, although now in a can- Exch. of Pleas
celled state. Under all the circumstances of the case, we
are of opinion that the defendants are entitled to a new
trial on payment of costs, on the ground of surprise.

Lord ABINGER, C. B., ALDERSON, B., and GURNEY, B., concurred.

Rule absolute accordingly.

TODD v.

EMLY.

Atkin

But

f the

oubt

Shep.

may

rties

arty.

ave

supleed

y to

ex

(k). in

er

in

he

re

ed

SMITH V. MARRABLE, Knt.

ASSUMPSIT for use and occupation. Plea, non as-
sumpsit. At the trial before Lord Abinger, C. B., at the
Middlesex sittings after Michaelmas Term, it appeared that
the action was brought to recover a balance of five weeks'
rent of a furnished house at Brighton, which had been taken
by the defendant of the plaintiff under the following agree-

ment:

"Brighton, September 14, 1842.

Jan. 14.

It is an implied condition in the

letting of as house, that it ably fit for ha

shall be reason

bitation; if it be not (e. g. where it is greatly infested with bugs), the tenant may quit it without

"Mr. John Smith, of 24, St. James's-street, agrees to notice.
let, and Sir Thomas Marrable agrees to take, the house
No. 5, Brunswick-place, at the rent of eight guineas per
week, for five or six weeks at the option of the said Sir
Thomas Marrable.

"THOMAS MARRABLE.
"JOHN SMITH.

"The rent to commence on the 15th September.

"T. M.

"J. S."

Under this agreement, the defendant and his family entered into possession of the house on Friday the 16th of September. On the following day, Lady Marrable having complained to the plaintiff that the house was infested with

Exch. of Pleas, bugs, he sent a person in to take means for getting rid of

1843.

SMITH

v.

them, which however did not prove successful; and on the 19th, Lady Marrable wrote the following note to the wife

MARRABLE. of the plaintiff :

"5, Brunswick Place, Sept. 19, 1842. "Lady Marrable informs Mrs. Smith, that it is her determination to leave the house in Brunswick Place as soon as she can take another, paying a week's rent, as all the bedrooms occupied but one are so infested with bugs that it is impossible to remain."

On the following Thursday, the 22nd, the defendant accordingly sent the key of the house, together with the amount of a week's rent, to the plaintiff, and removed with his family to another residence. Evidence was given to shew that the house was in fact greatly infested by bugs. The Lord Chief Baron, in summing up, stated to the jury, that in point of law every house must be taken to be let upon the implied condition that there was nothing about it so noxious as to render it uninhabitable; and that if they believed that the defendant left the plaintiff's house on account of the nuisance occasioned by these vermin being so intolerable as to render it impossible that he could live in it with any reasonable comfort, they ought to find a verdict for the defendant. The jury having found for the defendant,

Hayward now moved for a new trial, on the ground of misdirection. The alleged nuisance is no answer to this action, founded as it is upon a written agreement of demise for a longer period, but must, if true, be made the subject of a cross action. The rent is not in its nature divisible, and inasmuch as it cannot be said that there has been a total failure of consideration, the payment of a part of it is an admission of the tenancy. In Salisbury v. Marshall (a),

(a) 4 C. & P. 65.

1843.

SMITH

v.

MARRABLE.

the defendant, who held a house under an agreement "to Erch. of Pleas, become tenant by occupying," was held to be entitled to shew, in answer to an action for use and occupation, that the house was not in such a reasonable and decent state of repair as to be fit for comfortable occupation: but Tindal, C. J., there says, "I agree with the plaintiff's counsel, that if there had been a separate agreement to do these repairs, then the not having done them would furnish no defence." In Granger v. Collins (a), it was held that no duty arises out of the mere relation of landlord and tenant, in the absence of any special agreement, to protect the tenant against eviction by a reversioner.

But even if this be a defence to the action, it ought to have been pleaded specially. It cannot be denied that this agreement was at one time binding, and therefore the throwing it up for such cause is matter in confession and avoidance. Waddilove v. Barnett (b) is an authority in point. There a defendant, in answer to an action for use and occupation, relied upon a payment of rent made to a mortgagee in consequence of notice from him; and it was held that, so far as this defence related to rent which had accrued due previously to the notice, it was not admissible under non assumpsit, but ought to be specially pleaded. Here, in substance, the defence in truth is that there was fraud, express or implied, on the part of the plaintiff, in concealing from the defendant the fact of the existence of this nuisance.

PARKE, B.-This case involves the question whether, in point of law, a person who lets a house must be taken to let it under the implied condition that it is in a state fit for decent and comfortable habitation, and whether he is at liberty to throw it up, when he makes the discovery that it is not so. The case of Edwards v. Etherington (c) appears

(a) 6 M. & W. 458.
(c) Ry. & M.

(b) 2 Bing. N. C. 538; 2 Scott, 763.
268; S. C., 7 D. & R. 117.