1825. HOWELL v. YOUNG. been the cause of action, he would have recovered for this fresh injury; but the Court held that he could not. But in the cases of the excavations, there was a continuing cause of action. Shower, who was for the plaintiff in the case in Salkeld, compared it to a nusance, where every new dropping is a fresh cause of action; but HOLT, C. J. said, that there was no new battery by the defendant, and that the consequence of the battery was not the cause of action; and in the present case there is not any new negligence. If an action had been brought before the non-payment of the interest, the jury might take into their consideration the probable loss the plaintiff might incur. And if such an action had been brought, the fresh damage by the failure of interest would not have made a fresh cause of action. If so, the plea is proved, and the whole cause of action accrued more than six years ago. Rule discharged. LITTLEDALE, J. had left the Court before Mr. Justice. HOLROYD had concluded his judgment. On this point see, in addition to the cases above cited, Lowe v. Harwood, Palm. 529; Saunders v. Edwards, 1 Sid. 95; and Whitehead v. Howard, 2 B. & B. 372. On the question, how far fraud takes a case out of the statute of limitations, see the cases of Bree v. Holbech, Doug. 630; South Sea Company v. Wymondsell, 3 P. Wms. 143; Lord Warrington's Case, 3 P. Wms. 144; Brown v. Howard, 2 B. & B. 73; and Clark v. Hongham, 3 Dow. & Ry. 322. CASES AT NISI PRIUS. COURT OF KING'S BENCH. Sittings at Westminster, in Hilary Term, 1826. BEFORE LORD CHIEF JUSTICE ABBOTT. DOE on the demise of CHANDLESS v. ROBSON. EJECTMENT to recover a house, in the parish of St. Mary-le-bone. The defendant was the under-lessee, and the ejectment was brought by the landlord on an alleged forfeiture incurred by breach of two of the covenants contained in the lease. One of them being a covenant to pay the rent, and the other a covenant to duly keep in repair the pavement of a certain footpath, according to the provisions of a private act of parliament, relative to the pavements of the parish of St. Mary-le-bone. 1826. Feb. 1st. To support an forfeiture of a ejectment on a performance of lease by non a covenant, if the covenant be to do an act, the lessor of the give some evi omission of the act. And if the covenant be for payment of rent, plaintiff must prove a demand The lease containing these covenants, and a proviso for the lessor of the re-entry for non-performance of any of the covenants therein contained, was put in, and it was shewn that the of such rent. defendant was the under-lessee, but no evidence was given on the part of the lessor of the plaintiff to show that any rent had ever been demanded, or that the footpath was not in good repair. VOL. II. 1826. DOE v. ROBSON. ABBOTT, C. J.-I think the plaintiff must be called, for in all cases of forfeiture, the lessor of the plaintiff must give some negative evidence that the thing has not been done. If the covenant is to pay rent, it ought to be shewn that the rent has been demanded; and if the covenant be for the doing of any act, some evidence of the omission should be given before a remedy so highly penal can be put in force. Nonsuit. Denman and Chitty, for the lessee of the plaintiff. Storks, for the defendant. [Attornies C. Wilkinson and Hallet & H.] Sittings at Westminster after Hilary Term. Feb. 14th. an ejectment against the as ant on a forfei ture of a lease by breach of covenant, it appear that the landlord so acted as to induce the tenant's as DOE on the demise of KNight v. Rowe. If on the trial of EJECTMENT to recover a house and premises at Kensington. The lessor of the plaintiff was the landlord, and signee of a ten- the defendant had been appointed assignee of a person named John Leonard Jones, who was the lessee, he having taken the benefit of the Insolvent Debtors' act. The lease, which was dated July 20, 1820, contained the usual clause of re-entry for breach of any of the covenants, and inter signee to believe alia the following covenant: "And also, that he, the said was doing all John Leonard Jones, his executors, administrators, and that he oughtThe landlord assigns, or some or one of them, shall and will, at his and cannot recover, their own costs and charges, forthwith insure and cause to although the covenants be be insured upon the said messuages, tenements, and buildactually broken, and there be ings, and upon all such other erections and buildings as neither release shall or may, during the continuance of the said term herenor a dispensation on the part by granted, be erected and built on the premises hereby that the latter of the landlord. demised, or any part thereof, in two thirds of the value thereof at the least, from loss or damage by fire, in the Sun Fire Insurance Office for insurance from fire, or in some other respectable office in the joint names of the said William Knight, his heirs and assigns, and the said John Leonard Jones, his executors, administrators, and assigns; and from time to time during the continuance of this demise, the said John Leonard, his executors, administrators, and assigns, shall and will renew, and keep in force such policy or policies of insurance, and also shall and will produce and shew the policy or policies of such insurance, and the receipt of the premium and duty thereof from time to time when thereunto requested by the said William Knight, his heirs, or assigns." And it was further provided, that in case of Jones, or his executors, &c. omitting to insure as before covenanted, that the lessor should be at liberty to do so, and to take the premium as increased rent. On the part of the plaintiff, the execution of the lease was proved, and also, that the defendant was appointed assignee of the lessee under the Insolvent Debtor's Court in March, 1823; and it further appeared, that in the month of October, 1825, Mr. Knight called on the defendant, and asked to see the policy of insurance effected on those premises. It was shewn him, and was for 8007., and in the defendant's name only. And it was proved on the part of the plaintiff, that the premises were worth from 17007. to 18007; however, on this point there was a contradiction; the defendant's witnesses stated the value not to exceed 12007. The defence was, that the defendant had believed that he was doing what was right, but that he was deceived by the conduct of the lessor of the plaintiff himself. And it appeared, that when Jones executed the original lease, both that and the counterpart remained with the lessor, he having a lien on them for money lent. But in the year 1822, Jones wishing to raise money upon the lease, Mr. 1826 DOE V. Rowe. 1826. DOE v. Rowe. Knight, the lessor of the plaintiff, being an attorney, prepared an abstract, which was then shewn to the defendant. In that abstract it was stated, that the tenant was "to insure and keep insured the premises, and to produce the policy and receipts; and if no insurance, or a refusal to produce the policy and receipts, Mr. Knight is to be at liberty to insure." At Christmas, 1823, a year's rent was due, and Jones having been discharged under the Insolvent Debtors' act, it appeared, that from Christmas, 1823, to Christmas, 1824, the lessor of the plaintiff had himself insured the premises at the Phoenix Fire Office at 8001., and that at Christmas, 1824, the defendant insured them. at that office at the same sum. On these facts, Campbell, for the defendant, argued that the defendant had acted bonâ fide; that he was led to do what he had done by having seen an abstract furnished by the lessor of the plaintiff himself; and that as to the sum insured, that was the precise value at which the lessor of the plaintiff had himself insured the premises in the previous year. Scarlett, contra, contended, that these facts were neither a release nor a dispensation with the covenant, and that as to the abstract, any one who was going to purchase the premises, or to lend money on them, would not do so without a perusal of the original lease. ABBOTT, C. J.-The lessee and his assigns are, by this covenant, bound to effect an insurance on the premises at two-thirds of their value; and though there is clearly no dispensation in this case, I am of opinion, that if the conduct of the lessor of the plaintiff was such as to induce any cautious and reasonable man to suppose that he would be doing enough if he insured at 8007. in his own name, as this is a case of forfeiture, the lessor of the plaintiff would not be entitled to recover: and, in that way, I |