1842. PISTOR บ. CATER. Exch. of Pleas, payment of the rent and performance of the covenants.] And lastly, it was by the said articles agreed and declared by and between the said parties thereto, that such lease, when granted in pursuance of such license so to be obtained as aforesaid, should contain covenants, provisoes, and agreements similar to and founded upon the several covenants, provisoes, and agreements, therein contained, and none other. The declaration then averred, that after the making of the said articles of agreement, to wit, on &c., the defendant, under and by virtue of the said articles, entered into and upon the said premises mentioned therein, and became and was possessed thereof, and continued possessed thereof, under and by virtue of the said articles of agreement, from thence until the 25th day of March, 1841, when the said term mentioned in the said articles of agreement expired by effluxion of time; and assigned breaches of covenant in not keeping the premises in repair, and not painting, pursuant to the agreement. Special demurrer, assigning for causes, first, that the declaration does not shew that the premises mentioned in the articles of agreement declared upon were at any time demised and leased by the plaintiff to the defendant for the term of years mentioned in the said articles, in pursuance of the plaintiff's covenant therein contained; and secondly, that it appears by the declaration, that the premises agreed to be demised to the defendant were copyhold premises, and that, in order to enable the plaintiff to demise the same, it was necessary that he should procure the license of the lord of the manor for that purpose, but it is nowhere alleged or shewn in the declaration, that the plaintiff did ever apply for or obtain, or use any endeavour to obtain such license from the lord of the said manor, or that any license was ever granted to the plaintiff by the lord of the said manor, to enable him to demise the premises to the defendant. Joinder in demurrer. Fish, in support of the demurrer.-The declaration dis 1842. PISTOR v. CATER. closes no legal liability on the part of the defendant to re- Each of Pleas, pair the premises. The covenants are only to pay rent, to repair, &c., during the term thereby agreed to be granted, i. e., during the remainder of the term of twentyone years of which a lease is thereafter to be made by the plaintiff to the defendant. The defendant's liability, therefore, did not attach until the remainder of that term had been granted to him by a valid lease. The articles of agreement themselves did not and could not constitute an actual demise, it being necessary first to obtain a license from the lord. The parties have made the grant of that license a condition precedent to the granting of the term, during which alone the defendant's liability under the covenants is to subsist. [Lord Abinger, C. B.—The declaration shews that the defendant has in fact entered on the premises, and held them during the whole remainder of the twenty-one years. Suppose he had been turned out by the lord, and had sued the plaintiff on his covenant for quiet enjoyment, what defence would he have had? The defendant has had the whole benefit of the lease without the license, and yet, at the end of the twenty-one years, says he is not liable on the covenants.] It is clear no term actually vested in the defendant: but the covenant is only to repair during the term. Until a license was obtained, and a valid grant of the term made to him, he was not bound by this covenant. It would be unreasonable to suppose that he should, since he might have been turned out by the lord the day after he had put the premises into complete repair. [Lord Abinger, C. B.On the other hand, he might be content to rest upon the covenant for quiet enjoyment, without the license being obtained.] If there be any hardship on the plaintiff, he has brought it upon himself by not procuring the license and tendering the lease. In Doe d. Coore v. Clare (a), it was held that an instrument on an agreement stamp, (a) 2 T. R. 739. Exch. of Pleas, reciting that A., in case he should be entitled to certain 1842. PISTOR v. CATER. copyhold premises on B.'s death, would immediately demise them to C., and declaring that he did thereby agree to demise and let the same, with a subsequent covenant to procure a license to let from the lord, operated only as an agreement for a lease, and not as an actual demise. That case shews that the license of the lord is a condition precedent essential to a valid lease. The same appears from the case of Doe d. Nunn v. Lufkin (a). If the license had been refused by the lord, the defendant could not have enforced a specific performance of the agreement; why then should the plaintiff be at liberty to take advantage of it in the absence of such license, and of the lease to be founded thereon? Cleasby, contrà, was stopped by the Court. Lord ABINGER, C. B.-It is clear that by these articles of agreement, the parties intended to covenant with each other, independently of the lease to be afterwards granted. If this had been an ejectment by the landlord, after six months' notice to quit, the cases cited might have applied; but then an action might have been brought by the defendant against the plaintiff, on his covenant for quiet enjoyment, for turning him out of possession. This is a contract which is to bind both parties even if no lease be granted, and in addition, the defendant was to have a lease, if the license should be obtained. No lease having been made, but the defendant having occupied for the whole of the term agreed upon, and having had the full benefit which he could have enjoyed under the lease, he cannot now say that the covenants are not binding, because the lease was not granted. ALDERSON, B., and GURNEY, B., concurred. Judgment for the plaintiff. (a) 4 East, 221. STERICKER and Another v. BARKER. ASSUMPSIT by indorsee against drawer of a bill of exchange. The declaration alleged, that the defendant, on the 5th May, 1841, made his bill of exchange in writing, and directed the same to one George Baxter, and thereby required the said George Baxter to pay to the order of the defendant 1037. 7s. 6d., two months after the date thereof, which period had elapsed before the commencement of this suit; and the defendant then indorsed the said bill to the plaintiff's; and that the said George Baxter did not pay the said bill, although the same was presented to him on the day when it became due, whereof the defendant then had notice. Plea, that the defendant had not notice of dishonour of the said bill of exchange on the day when the same became due, modo et formâ. Special demurrer, assigning for cause, that the defendant was not entitled to notice of the dishonour of the bill on the day when it became due, and that the pretended traverse in the plea raised an issue wholly immaterial. Joinder in demurrer. The points marked for argument by the defendant were, that the declaration was insufficient; first, because it stated that the defendant had notice on the day of the dishonour of the bill; secondly, because it contained no averment of any promise by the defendant. Ball appeared to support the demurrer, but the Court called on Wordsworth, contrà.-The plea undoubtedly cannot be sustained. But the declaration is bad on general demurrer, for want of an allegation of a promise to pay. That is Exch. of Pleas, a defect not of form merely, but of substance; Henry v. 1842. STERICKER v. BARKER. Burbidge (a). That was an action by the indorsee against the drawer of a bill of exchange, and no promise to pay was alleged. Tindal, C. J., says "In this action, which is against the drawer, the bill does not constitute a debt, but raises a promise by implication of law, to pay in case of the acceptor failing to do so. That promise, I am of opinion, ought to be alleged in the declaration." The cases of Hayter v. Moat (b), and Harding v. Hibel (c), are authorities to shew that a promise to pay is necessary in an indebitatus count, and that such promise is matter of substance, and not of form merely. Where the action is against the acceptor, indeed, no promise to pay need be alleged, because his liability is not implied and conditional, like that of the drawer, but express and absolute on the face of the contract. Griffith v. Roxbrough (d) will probably be cited on the other side. There, undoubtedly, this Court appeared to think that no promise to pay need now be alleged in a count on a bill or note, and held that at all events the omission of it could only be taken advantage of on special demurrer: but the cases of Hayter v. Moat and Harding v. Hibel were not referred to. Ball, in reply.-The objection to the declaration is, at all events, matter of form only, and not of substance. The count pursues the form given in the rule of Trin. T., 1 Will. 4. The promise to pay is not now traversable, and therefore none need be alleged. Besides, this is an action against the drawer by his indorsee, on a bill payable to the order of the drawer, and there is therefore a privity of contract between the parties. Lord ABINGER, C. B.-It is clear that the defendant (a) 3 Bing. N. C. 501; 4 Scott, 296. (c) 4 Tyrw. 314. (d) 2 M. & W. 734. |