1843. June 2. The Company of Proprietors of Drury Lane a corporation counters of the saloon of the theatre and the M. C. for seven THE THEATRE ROYAL DRURY LANE COMPANY OF PRO- DEBT for use and occupation " of certain rooms, offices, It was opened by Knowles, for the plaintiffs, that the plaintiffs were incorporated under an act of Parliament, [50 Geo. 3, c. ccxiv., loc. and pers.] (a), and that the defendant had occupied what were called the Fruit Offices of Drury Lane Theatre, with the use of the counters in the saloon of that Theatre, and the privilege of selling fruit and her son, the and refreshments there, for which he was to pay the plaindefendant, soon tiffs £400 a year: that, on the 1st of January, 1843, a the committee balance of £450 was due for a year and a half's rent, after after applied to of the theatre to become tenant deducting a sum of £150 which had been paid. The defendant intended to object to the form of the present ac on the same terms as the lease, and they accepted him. He occupied down to January, 1843, and paid rent down to the latter part of 1841:-Held, in an action for use and occupation, that it was a question for the jury whether the defendant had occupied as assignee of the lease to his mother, or upon a fresh taking upon the same terms as the lease, and, if the latter, he was liable in the present action: and held, also, that he would be so liable, although in April, 1843, he and his brother had taken out letters of administration to Mrs. M. C. (therein described as a feme covert at the time of her death), and also to her husband, who had survived her. Held, also, that it was no ground for reducing the damages, that, in 1841, the plaintiffs had let the theatre to Mr. M. "subject to the rights" of the defendant, and that Mr. M. had made regulations as to the theatre and its saloon which caused a loss of profit to the defendant, unless those regulations were made by the authority of the plaintiffs, or of persons acting for them and by their authority. (a) In the case of The Mayor of Stafford v. Till, 12 Moore, 260, which was an action for the use and occupation of a house and premises, the Court of Common Pleas held that a corporation aggregate might maintain assumpsit for use and occupation where the tenant has occupied premises under them and paid rent. And in the case of The Mayor and Burgesses of Carmarthen v. Lewis, 6 C. & P. 608, it was held that a corporation aggregate might maintain assumpsit for the use and occupation of tolls, though they did not grant the tolls to the occupier by any instrument under their common seal. 1843. DRURY-LANE tion on the ground that he held under a lease, and also to object that the business in the saloon of the Theatre was lessened by reason of the lessee of the Theatre, Mr. COMPANY Macready, having made regulations by which a particular CHAPMAN. class of ladies were excluded from the saloon. It was proved by Mr. Dunn, the secretary of the plaintiffs, that the defendant had occupied the counters of the saloon of Drury Lane Theatre, and what were called the fruit-offices, from the year 1837, and paid a rent of £400 a year, to the 1st of July, 1841; but, in answer to questions put by Platt, for the defendant, Mr. Dunn said, "There was a lease of the same property and privileges that the defendant had at the Theatre. This lease was granted to Mrs. Mary Chapman, the mother of the defendant, who died in the month of January, 1837. The defendant paid the rent of the half-year in which his mother died. The lease is not expired by lapse of time. The defendant, soon after his mother's death, applied to the committee to take him as their tenant, on the same terms as the lease, and they accepted him (a)." Platt, for the defendant.-I apprehend that the lease must be produced, to shew the terms. WIGHTMAN, J.-The plaintiffs must produce the counterpart of the lease. The defendant is to hold on the same terms as the lease, and we must see what these terms are. The counterpart of the lease was proved, and put in. It was a lease dated the 30th July, 1836, from the plaintiff's to Mary Chapman, of the use of the counters of the saloon of the Theatre, and the exclusive right of selling fruit, tea, coffee, and such other refreshments, and also books of the plays, when permitted by the authors, as have been usually (a) Mr. Dunn did not give the date of this transaction. v. 1843. DRURY-LANE v. CHAPMAN. furnished or sold in the theatre, and the liberty of using certain fireplaces, for seven years. Platt, for the defendant.-I submit that the present action cannot be maintained. The defendant came in at the death of his mother under the lease granted to her, and he is therefore to be treated as the assignee of the lease, and the plaintiffs' remedy must be on the lease, and no action for use and occupation will lie. WIGHTMAN, J.-The capacity in which the defendant held is one of the questions which I shall leave to the jury. Platt addressed the jury for the defendant.-The lease to Mrs. Chapman is a subsisting lease, and, being by deed, it cannot be got rid of by parol or by any thing but another deed, and the whole of Mrs. Chapman's interest in the property is in her representatives. I shall put in letters of administration to Mrs. Chapman granted to the defendant and his brother Mr. Frederick Chapman; and they therefore have all their mother's interest in the property till the lease expires, and they and they alone are suable on the lease, which is by deed, and not in an action for use and occupation. But even conceding that the action for use and occupation would lie, the tenant is not liable if the premises are rendered valueless; and it will be shewn that since the making of certain regulations by Mr. Macready, the lessee of the theatre, the saloon has been rendered valueless to the defendant. Letters of administration of the effects of Mrs. Mary Chapman, dated the 18th of April, 1843, granted to the defendant and his brother Mr. Frederick Chapman, were put in. The letters of administration stated that Mrs. Chapman had a husband who survived her (a). (a) Lord Coke says (1 Inst. 3 a), "A feme covert cannot take any thing of the gift of her husband, but is of capacity to pur .Letters of administration of the same date of the effects of Mr. George Chapman (husband of Mrs. Chapman) granted to the defendant and his brother were also put in (a). It was proved that the sale of refreshments at Drury Lane Theatre had very much decreased in the years 1841 and 1842, after the regulations made by Mr. Macready for the exclusion of women of improper character from the saloon of the theatre, and after the regulations made by him preventing the fruit-women from going into the pit of the theatre to sell fruit there. But it was proved by Mr. Macready that he had taken the theatre of the defendant in the year 1841, "subject to the rights" of the defendant, and that he made these regulations of his own authority. Knowles, in reply.-It is quite clear from the evidence that the defendant occupied this property not as assignee or representative of his mother for the remainder of her chase of others, without the consent of her husband; and of this opinion was Littleton, in our books, and in this book, sect. 677, but her husband may disagree thereunto, and devest the whole estate, but if he neither agree nor disagree, the purchase is good; but, after his death, albeit the husband agreed thereunto, yet she may, without any cause to be alleged, waive the same; and so may her heirs also, if, after the decease of her husband, she herself agreed not thereunto." With respect to a wife taking any thing of the gift of her husband, Messrs. Hargrave and Butler, in their note on this passage, say, "But this doctrine must be understood with various limitations. 1. Though the husband cannot convey to the wife im mediately, yet he may give to a (a) The time of Mr. George N. P. 1843. DRURY-LANE v. CHAPMAN. 1843. DRURY-LANE v. CHAPMAN. term under the lease, but as yearly tenant, having made a new and separate bargain for himself, and this is quite manifest, as the letters of administration are dated in April, 1843, and the present action was commenced before that time (a), and the administration was, therefore, an after thought to defeat the present action; and with respect to the other ground of defence, that the defendant's profits have been diminished by Mr. Macready's arrangements, it is not at all shewn that that is in any way attributable to the plaintiffs; indeed, Mr. Macready himself has stated that he took the theatre subject to all the defendant's rights and privileges, and even assuming that Mr. Macready had exceeded his authority in respect of the defendant's rights, that is no reason why the defendant should not pay his rent to the plaintiffs. WIGHTMAN, J., (in summing up).-The first question in this case which I shall leave to you is, whether you are satisfied that, after the death of Mrs. Mary Chapman, the defendant entered into a new contract with the Committee of Drury Lane Theatre, to hold this property and these privileges on the same terms as the lease; and whether the defendant held under such new taking, or whether he entered into possession after the death of his mother under the lease itself. With respect to the second point, as to the defendant's alleged loss of profits in consequence of Mr. Macready's regulations, I am of opinion, that unless the defendant was deprived of his profits by some default of the plaintiffs, or of those who represent them, and act by their authority, such loss of profits is no defence to the present action; you will, therefore, tell me whether you think what Mr. Macready did, was done by the authority of the plaintiffs, and I also wish you to say how much the property and privileges of the defendant were, in fact, deteriorated by (a) The declaration in the present action was dated 28th of March, 1843, and the plea the 24th of April, 1843. |