between this Sort of Covenant and a Covenant to ascertain, whether upon the Non-pers Species of Covenant the Right of Entry acted upon at Law; and, as it appeared, that jectment might be maintained, no Relief was given. The Decision of the subsequent Case of Sanders v. Pope (a) does not seem to me to govern this Case. The Tenant there, not having laid out the Sum of £200 in Repairs within the Period expressed by the Covenant, offered afterwards to lay out that Sum; and it does not appear, that there had been any Dealing by Request and Refusal between the Lessor and Lessee in the Period, during which by the express Covenant the Money ought to have been applied. The Injunction, which had been continued by an Order of the Master of the Rolls (b), implies a Declaration of his Opinion, that the Case was to be regarded as a Case, that might admit Relief. Lord Erskine's Opinion also was, that, the Covenant specifying a liquidated Sum to be laid out within a given Time, and as the Landlord could not be injured by the Expenditure of that Sum, with an Increase, after the Time had expired, and all the Costs, Relief was in the Discretion of the Court. The original Cases upon this Subject are of different Sorts. The Court has very long held in a great Variety of Classes of Cases, that in the Instance of a Covenant to pay a Sum of Money the Court so clearly sees, or rather fancies, the Amount of Damage, arising from Nonpayment at the Time stipulated, that it takes upon itself to act, as if it was certain, that giving the Money Five (a) Ante, Vol. XII. 282. (b) Ante, Vol. XII. 213. Years 1811. HILL 0. BARCLAY. Court ought to give Relief upon a Principle of Equity, resulting from that Act of the Tenant, putting them in such compleat Repair; and a Controversy is raised by the Affidavits on each Side with regard to this Point, which I find it extremely difficult to understand, whether the Premises are not considerably better for not having been repaired until after the Time, than if the Repairs had been done at the Time stipulated: that is, whether the Effect of the Winter being past does not make the State of Repair more compleat and desirable, than if it had been done in the preceding September. Upon these Grounds the Motion was made for an Iojunction to restrain the Ejectment; against which, it was admitted, there could be no Defence at Law; and the Tenant was therefore required to give Judgment, subject to such Terms as the Court should think reasonable. The Question now is, whether upon such Circumstances as are now before me, the Principle of Equity will maintain me in holding, that a Landlord shall not have the legal Effect of his Covenant. Very modern Times have produced Two Cases, perhaps not quite so contradictory as they appear to be; though it may not be very easy to reconcile the Principles, supposed to govern them. In' Wadman v. Calcraft (a) the Master of the Rolls lays down, as Doctrine, making a strong Impression on his Mind, that, though against an Ejectment for Non-payment of Rent the Court would relieve, upon a Principle long acknowledged in this Court, but utterly without. Foundation, it would not relieve, where the Right of the Landlord accrued, not by Non-payment of Rent, but by Non-performance of Covenants, which might be compensated by Damages. That Case coming afterwards before me, my Mind was so strongly impressed with the Dis tinction between this Sort of Covenant and a Covenant for Non-payment of a Sum of Money, or Rent, that I acted upon the Distinction; and put the Party to an immediate Inquiry, to ascertain, whether upon the Non-performance of this Species of Covenant the Right of Entry could be acted upon at Law; and, as it appeared, that the Ejectment might be maintained, no Relief was given. The Decision of the subsequent Case of Sanders v. Pope (a) does not seem to me to govern this Case. The Tenant there, not having laid out the Sum of £200 in Repairs within the Period expressed by the Covenant, offered afterwards to lay out that Sum; and it does not appear, that there had been any Dealing by Request and Refusal between the Lessor and Lessee in the Period, during which by the express Covenant the Money ought to have been applied. The Injunction, which had been continued by an Order of the Master of the Rolls (b), implies a Declaration of his Opinion, that the Case was to be regarded as a Case, that might admit Relief. Lord Erskine's Opinion also was, that, the Covenant specifying a liquidated Sum to be laid out within a given Time, and as the Landlord could not be injured by the Expenditure of that Sum, with an Increase, after the Time had expired, and all the Costs, Relief was in the Discretion of the Court. The original Cases upon this Subject are of different Sorts. The Court has very long held in a great Variety of Classes of Cases, that in the Instance of a Covenant to pay a Sum of Money the Court so clearly sees, or rather fancies, the Amount of Damage, arising from Nonpayment at the Time stipulated, that it takes upon itself to act, as if it was certain, that giving the Money Five (a) Ante, Vol. XII. 282. (b) Ante, Vol. XII. 213. Years 1811. HILL v. BARCLAY. 1 1811. HILL v. BARCLAY. lief of a Te- Years afterwards with Interest it gives a compleat Compensation. That Doctrine has been recognized without any Doubt upon Leases with reference to Non-payment of Rent, upon Conditions precedent, as to Acts to be done, Payment of Money in Cases of specific Performance, and various other Instances: but the Court has certainly affected to justify that Right, which it has assumed, to set aside the legal Contracts of Men, dispensing with the actual specific Performance, upon the Notion, that it places them, as near as can be, in the same Situation as if the Contract had been with the utmost Precision specifically performed: yet the Result of Experience is, that, where a Man, having contracted to sell his Estate, is placed in this Situation, that he cannot know, whether he is to receive the Price, when it ought to be paid, the very Circumstance, that the Condition is not performed at the Time stipulated, may prove his Ruin, notwithstanding all the Court can offer as Compensation. There is however no Doubt, that the Court has always acted upon this as to Rent; and there is also legislative Stat. 4 Geo. 2, Authority for it by the Statute (a), which passed in 1731, c. 28, reguregulating the Powers of Courts of Equity in that Article, lating the Re-limiting the Time, within which the Lessee, who has failed in paying his Rent, may file a Bill to have his Lease restored; specifying the Terms, upon which the Relation, though according to the Contract at an End, shall upon the equitable Doctrine, aided by legislative Provision, continue in Force between them. If it was understood at that Time, that in a great Variety of other Cases this Court upon its equitable Doctrine would relieve against Forfeiture, among other Instances in this of a wilful Neglect to repair, if it was then the acknowledged Doctrine of this Court, that the Lease, forfeited by the Contract, a Breach of Covenant by Non-payment of Rent. (a) Stat. 4 Geo. 2, c. 28, s. 2, 3, 4. might be set up again by the Tenant, coming at any Time with an Offer to do that, which he had wilfully omitted at the Time he had stipulated, it is much to be lamented, that the Power of the Legislature was not interposed in a Case, upon which its Interference was much more desirable. Imperfect and unjust as the Operation of the Rule for giving Relief in Equity against a Forfeiture for Nonpayment of Money must be in most Cases, yet, if the Rule is established, that Payment with Interest from the Time is a Compensation, that is an extremely simple Rule for administering the Equity: but, if a Court of Equity is to trust itself in all Cases with the Consideration of such a Question as this, whether it is just, that a Tenant should come here to prolong the Duration of a Lease, by his express Contract determined, if the Property has not been treated in a Husband-like Manner, the Court has not so sure a Guide as the Calculation of Interest upon a Sum of Money; and, considering the Depositions of Surveyors in this Court, or the Declaration of one of these Plaintiffs, as represented by the Answer, that the Premises are in such Circumstances, that, when all the Repairs are made, it will be a bad Business, the Notion, that the Court upon such Evidence can be sure, that it gives the Party a Compensation in Damages, appears ridiculous. I notice this particularly on account of one Case (a), where the Lord Chancellor appears to go a Length, to which no Judge should follow without great Consideration. According to the Note, which is but loose, his Lordship seems to have thought, that the equitable Jurisdiction might be applied on this Ground; that if the Repairs of the Premises, under a Covenant always to be kept good, are done at the Close of the Term, the Land (a) Brown v. Quilter, Amb. 619. lord 1811. HILL v. BARCLAY. |