Re-exchange. to the two mortgages. They were never bound to convey the legal estate to the plaintiff, but only the equity of redemption; and that they never had refused to convey (y). 3. A bill of exchange cannot be accepted on a quantum meruit (2); and where a bill or note is given for the price of goods, evidence of inferior quality is never admissible in reduction of the claim (a). But it is otherwise where the inferiority of the article arises from fraud on the part of the seller; this makes the bill bad ab initio (b). It would appear then, that though a partial absence of consideration may be set up (c), a partial failure of consideration never can, but must always be matter of cross action. For an explanation of re-exchange on dishonoured bills, see Byles, Bills (d). The drawer of the bill is liable to reexchange, no matter how many the hands through which the bill has been returned, and on which the exchange charges have been accumulating, because, by making himself liable for the acceptor, he makes himself liable for all the consequences of the acceptor's default (e). And the same rule holds as to an endorser (f). But the acceptor is not liable on this account, as his contract is only to pay the sum specified in the bill, and legal interest, according to the rate of the country where it is due (g). Where, however, the maker of a note made it "payable in Paris, or at the choice of the bearer, in Dover or London, according to the course of exchange upon Paris," and shortly after all direct exchange ceased between London and Paris, though a circuitous course of exchange was maintained through Hamburg; Held that the (y) Spiller v. Westlake, 2 B. & Ad. 155. (2) Lord Ellenborough, 2 Camp. 347. (a) Ibid.; Morgan v. Richardson, 1 Camp. 40 n.; Fleming v. Simpson, ibid.; Trickey v. Larne, 6 M. & W. 278; [Cripps v. Smith, 3 Ir. L. R. 277 ] ; the ruling of Tindal, C. J., in De Scwhanberg v. Buchanan, 5 C. & P. 345, upon this point seems incorrect. (b) Lewis v. Cosgrave, 2 Taunt. 2; Solomon v. Turner, 1 Stark. 51. (c) Wiffen v. Roberts, 1 Esp. 261; Jones v. Hibbert, 2 Stark. 304. (d) 5th ed., 312. [10th ed., 412. And as to the inadmissibility of evidence of an alleged custom among London merchants, giving to the holder an election between the re-exchange and the amount given for the bill, Suse v. Pompe, 8 C. B. N. S. 538; 30 L. J. C. P. 75.] (e) Mellish v. Simeon, 2 H. Bl. 378. (f) Auriol v. Thomas, 2 T. R. 52. (g) Napier v. Shneider, 12 East, 420; Woolsey v. Crawford, 2 Camp. plaintiff was entitled to recover upon the note, according to the system of circuitous exchange existing at the time the note was presented for payment (h). In the case of a foreign bill of exchange, a protest for non- Protest in case acceptance is necessary by the custom of merchants, to charge of foreign the drawer(); but it may be dispensed with under those circumstances which render notice of dishonour unneces sary (k). Protesting inland bills is unknown to the Common And inland bills. Law (); but St. 9 & 10 W. III. c. 17, authorises the protesting for non-payment of all inland bills for the amount of 57. or upwards, drawn payable at any time after date; and 3 & 4 Ann. c. 9, s. 4, authorises a protest of the same bills for non-acceptance, for which protest there shall be paid 2s. and no more. And 2 & 3 W. IV. c. 98, allows the protesting for non-payment of all bills of exchange, which are made payable at any place, other than the place named as the residence of the drawee. No bills can be protested except such as come within the words of the statutes, and a bill payable so many days after sight is not within stat. W. III., and no expenses of protesting can be recovered upon it (m). It has been thought that the stat. of 3 & 4 Ann. c. 9, which places promissory notes on the same footing for all practical purposes as bills, authorises protest (n). It certainly does not do so in terms, and if they were included, it is strange no mention should be made of them in 2 & 3 W. IV., c. 98. Since it has been decided that interest may be recovered on an inland bill without protest (o), the practice has become quite useless. Expenses of noting and postage, incurred on the return of Noting and an inland bill, must be specially laid (p); and it is doubtful postage. (h) Pollard v. Herries, 3 B. & P. 335. (i) Gale v. Walsh, 5 T. R. 239; Orr v. Maginnis, 7 East, 359. (k) Rogers v. Stephens, 2 T. R. 713; as to these circumstances see Bicker dike v. Bollman, 2 Sin. L. C. 22. [6th ed., 45.] (7) Byles, Bills, 5th ed., 193 [10th ed., 259]; Leftley v. Mills, 4 T. R. 173. (m) Leftley v. Mills, 4 T. R. 170. (n) Byles, Bills, 193. [10th ed., 259.] (0) Windle v. Andrews, 2 B. & A. 696. (p) Hobbs v. Christmas, Byles, Bills, 192 [10th ed. 258]; Kendrick v. Lomax, 2 C. & J. 405. [Under the Summary Procedure on Bills of Exchange Act, 1855, 18 & 19 Vict. c. 67, s. 5, the holder of a dishonoured bill or note has the same remedies for expenses of noting as for the amount of the bill or note.] Cost of former action. Liability of transferor who does not endorse. whether a charge for noting is in any case recoverable on an inland bill that has not been protested (q). A party to a bill, who has been sued upon it, cannot recover the costs of the suit, in an action against the party who is liable to him (r). A party to a bill, who transfers it without endorsement, does not warrant the solvency of the parties to it (s), and no action can be maintained against him, if it is dishonoured. He does, however, warrant it to be such a bill as it purports to be. Therefore if it is forged (t); or if, professing to be a foreign, it is really an inland bill, and therefore void for want of a stamp, the transferor must refund the amount received, though he was ignorant of the defect, and though the bill would have been paid, notwithstanding the defect, only for the bankruptcy of the acceptor (u), or the laches of the holder (a). (q) Kendrick v. Lomax, ibid., ubi sup. (r) See ante, pp. 46, 47. (8) Fenn v. Harrison, 3 T. R. 757. (t) Jones v. Ryde, 5 Taunt. 488. (u) Gompertz v. Bartlett, 2 E. & B. 849. (x) Wilson v. Vysar, 4 Taunt. 288. 1. Actions for Rent. CHAPTER IX. 2. Actions on Covenant to Repair. 4. Actions on Covenant to pay Re- 5. Actions on Covenant to Insure. 8. Actions on Covenant not to assign. In a previous chapter I examined contracts relating to the purchase or sale of land, and the damages which might arise from their breach. In the present chapter I propose to collect together those contracts which relate to the terms on which it is to be held. The most universal and important of these is the contract for payment of rent. Others, such as covenants to repair, present important matter for consideration also. Covenants for title, quiet enjoyment, and against incumbrances, have been discussed before (a), as referring rather to the nature of the thing parted with, than the manner in which it was to be occupied. Rent is generally a fixed sum, reserved by a written instru- Actions for rent. ment. In this case difficulty can seldom arise, as the jury have merely to give a verdict for the amount claimed for arrears, and interest upon it from the time due (b). Where there was a lease of coal mines to the defendant, yielding, and paying yearly for every ton of coal that should be worked, raised, or got in each year, not exceeding 13,000 tons in any year, 8d. per ton, or yielding and paying that amount of money, viz. 4331. 6s. 8d. each year as fixed rent, whether the coal should be worked or not, and also 9d. per ton for each ton over and above that quantity; it was held that the whole rent was payable, though the mine was so exhausted that the lessee (a) Ante, pp. 142-151. (b) 3 & 4 W. IV. c. 42, s. 28. Use and occupation. Where there is an agreement. could not raise 13,000 tons of coal in a year (c). The only two cases which ever admit of conflicting evidence as to the amount to be received are, where the rent is claimed in an action for use and occupation, and where a right to an apportionment is set up. 1. Debt for use and occupation lay even at common law, although there had been a demise at a fixed rent, provided it could be treated as a mere agreement, and not a lease (d). But by 11 Geo. II. c. 19, s. 14, it is lawful for a landlord, where the agreement is not by deed, to recover a reasonable satisfaction for the lands, &c. held or occupied by the defendant, in an action on the case for the use and occupation of what is so held or enjoyed; and if in evidence any parol demise, or any agreement (not being by deed) whereon a certain rent was reserved, shall appear, the plaintiff in such action shall not therefore be non-suited, but may make use thereof as evidence of the quantum of the damages to be recovered. Where there has been an agreement settling the amount of rent, of course the case is clear, and such agreement may be proved for this purpose, though void as a lease by the Statute of Frauds (e). Such an agreement, however, is only evidence of the amount of rent to be paid, where the lessee has enjoyed under it. And where the lessee took under an agreement which he never signed, and the lessor failed to fulfil the agreement, in the principal point which had induced the lessee to propose becoming a party to it, the Court held that he could scarcely be said to have so enjoyed. Accordingly, the jury were at liberty to find any such value, as they considered that which he had enjoyed to be worth (f). Even payment of rent (c) Bute v. Thompson, 13 M. & W. 487; R. v. Bedworth, 8 East, 387; [Jervis v. Tomkinson, 1 H. & N. 195; 26 L. J. Ex. 41. In an action recently brought for breach of a covenant to dig an annual amount of not less than 1000 tons of potter's clay, an equitable plea that there was no clay, and therefore performance was impossible, was held good, the covenant not being considered to amount to a stipulation for a minimum rent in any event; Lord Clifford v. Watts, L. R. 5 C. P. 577; 40 L. J. C. P. 36. Equity will not relieve a tenant from his liability to pay rent after premises have been burnt down, even though the landlord have received funds from an insurance office, and refused to rebuild; Lofft v. Denis, 1 E. & E. 474; 28 L. J. Q. B. 168.] (d) Gibson v. Kirk, 1 Q. B. 850. (e) De Medina v. Polson, Holt, 47. (f) Tomlinson v. Day, 2 B. & B. 680; Swatman v. Ambler, 8 Exch. 72. |