John Kean and Jane His Wife, Administratrix of William Craig, v James Strong and Others, Executors of John Maxwell

• Jurisdiction: Ireland
• Judgment Date: 09 June 1843
• Date: 09 June 1843
• Court: Queen's Bench Division (Ireland)

Queen's Bench.

JOHN KEAN and JANE his wife, administratrix of WILLIAM CRAIG,

and

JAMES STRONG and others, executors of JOHN MAXWELL.

Thomson v. Brown 1 B. Moo. 358.

Sellers v. Bickford Ibid, 460.

Robards v. StokerENR Palm. 110.

Littler v. HollandENR 3 T.R. 590.

Gregson v. HarrisonENR 2 T. R. 425.

Cook v. JenningsENR 7 T. R. 381.

Cordwent v. Hunt 2 B. Moo. 660.

Barker v. FleetwoodENR Godb. 69.

Carroll v. Read Cro. Eliz. 374.

Cotton v. Clinton Cro. Eliz. 755.

Brecknock canal Company v. PritchardENR 6 T. R. 750.

1 B. Moo. 372.

Townson v. TickelENR 3 B. & Al. 31.

Thompson v. LeachENR 2 Vent. 198.

Hotham v. East India CompanyENR 1 T. R. 638.

Lancashire v. KillingworthENR 1 Ld. Raym. 686.

Blackwell v. Nash 1 Stra. 535.

Wynne v. FellowesUNK 1 Show. 334.

Jones v. BarkleyENR 2 Doug. 684.

AnonENR Skin. 39.

Stevenson v. LambardENR 2 East, 581.

Barker v. DamerENRENR 3 Mod. 337; S. C. Carth. 182.

Wey v. YallyENR 6 Mod. 194.

Walker's caseUNK 3 Rep. 22, b.

Patterson v. Scott 2 Stra. 776.

Webb v. RussellENR 3 T. R. 393.

Jourdain v. WilsonENR 4 B. & Al. 266.

Pitcher v. ToveyENR 1 Salk. 80.

Brudnell v. Roberts 2 Wils. 143.

Roe, Lessee Bamford, v. HayleyENR 12 East, 464.

Alfor v. HenningENR Owen, 152.

Simpson v. ClaytonENR 4 Bing. N. C. 751.

Ashby v. Baines,ENR 2 C. M. & R. 22.

Paul v. Nurse.ENR 8 B. & C. 488.

Warn v. Brickford 7 Pri. 555.

Colt v. Howe Cro. Eliz. 348.

Elstob v. ThorowgoodENR 1 Ld. Raym. 284.

Smith v. SharpeENR 1 Salk. 139.

Rubery v. JervoisENR 1 T. R. 229.

Norris v. Elsworth Freem. 462.

Cowell v. WattsENR 6 East, 405.

Henshall v. RobertsENR 5 East, 150.

Gye v. Ellis Stra. 228.

Cocks v. Nash 2 M. & Se. 434.

540 CASES AT LAW. T. T. 1843. Queen'sBench. :April 28. May 2, 3. JAMES STRONG and others, executors of JOHN MAXWELL.* June 9. Where in an COVENANT.-this was an action of covenant, brought by the plaintiff action of cove Jane, as personal representative of the assignee of the lessee of a lease nant brought by the admi- for years, against the defendants, as personal representatives of the lessor, nistratrix of the assignee of on a breach of covenant for renewal. The declaration contained four the lessee counts. It commenced by stating that John Kean and Jane Kean his against the executors of wife, which said Jane is administratrix of all and singular the goods, the lessor for a chattels, rights and credits which were of William Craig, deceased, at breach of co venant to re- the time of his death, who died intestate, and which said William Craig, new at the ex- in his lifetime was assignee of Joseph Craig, complains against James piration of a lease, the de- Strong, H. S. Close, and John Armstrong, executors of the last will and claration omit- ted to state testament of John Maxwell, deceased, in the custody, &c. The first that the plain count then stated, that by an indenture, dated the 1st of November 1800, tiff sued as ad ministratrix ; made between John Maxwell and Joseph Craig, the said John Maxwell and in the first demised to the said Joseph Craig the premises therein mentioned, for and second counts set out a term of twenty years, at a certain rent ; and that the said John a covenant by the lessor for Maxwell did thereby for himself, his executors, administrators and himself, his assigns, covenant, promise and agree with the said Joseph Craig, his executors, ad- ministrators executors, administrators and assigns, at the expiration of the demise and assigns, to then granted, that he the said John Maxwell, his executors, adminis- renew the lease at the trators or assigns, would renew the then present lease, or any future expiration thereof; and in lease which should be granted of the premises, by adding thereto such the third count number of years as in that said present demise, that is to say, the term set forth a co venant by the and space of twenty years, and so on at the end or expiration of every lessor, that he had full title to term; he the said John Maxwell, his executors, administrators and assigns, renew, and averred as a breach that be had no such title ' • and the fourth count averred generally that the lessor had no title to renew; to which the defendant pleaded, first, as to the entire declaration, that he was ready and willing and offered to renew, but that the plaintiff refused to accept a renewal ; secondly, as to the first, second, and fourth counts, an eviction by title paramount ;-Held, on demurrer, that the first plea was bad as to the third count, being no answer to it, and for that reason bad as to the .whole declaration. Held also, that the second plea was bad, it being no answer to an unqualiÂÂfied covenant to state an eviction by title paramount. Semble, the omission to state in the declaration that the plaintiff sued-as administratrix was immaterial, as claiming through her administration she was assignee of the lease, and as such she was entitled to maintain the action. Queere-Is such an objection ground of general demurrer ? Semble, that the covenant being to renew at the expiration of the term ; the true meanÂÂing of that covenant was, to renew before the expiration of the term ; and the privity of • contract, therefore, still subsisting, the action was maintainable. Semble, the omission to state in the breaches to the several counts in the declaration, that the defendants had any estate out of which they could renew, or that they had any power to renew or to aver a previous request, was immaterial, the covenant being an unÂÂqualified covenant, that the lessor, his executors and administrators would renew. Semble, that the admissions made by the pleas supplied the deficiencies (if any), of the averments in the declaration: Coram Crampton, J., and Perrin, J. CASES AT LAW. 541 should and would make out a new lease, or renew the then present lease, which should be granted of the premises, for the term of twenty years; it was then averred that Joseph Craig entered and became possessed of the demised premises, and being so possessed on the 17th of April 1820, he by indenture assigned the said premises, with all right of renewal therein, to William Craig, and that the said William Craig, from thence until the time of his decease, became and continued possessed of the said premises. It then stated the death of William Craig, intestate, and that administration was granted to plaintiff Jane, and the intermarriage of the plaintiffs ; and that after the making of the indenture of the 1st of November 1800, and during the continuance of the term thereby granted, to wit, on the 20th of January 1820, John Maxwell died, and that the lease expired in November 1820. It then averred performance of the covenants by Joseph Craig, William Craig, and the plaintiffs, and assigned as a breach that the defendants would not renew the lease after the expiration thereof, although requested so to do. The second count was the same as the first, except that it stated a triennial fine was reserved by the lease of 1800, which it averred had been regularly-paid. The third count, after stating the lease of November 1800, and Maxwell's covenant to renew, and a covenant that he had good right and full and sufficient title to make such renewal, or new lease, in manner and form in said covenant mentioned, averred in the breach, that Maxwell had not, nor had the defendants as his executors, good right and full and sufficient title to renew the said lease, nor had they any title whatsoever to make such renewal. The fourth count was the...