Walsh V. Lonsdale [1882 W. 1127.]

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WALSH v. LONSDALE [1882 W. 1127.]
This is one of the most frequently cited authorities on the effect of the Judicature Acts so far as the fusion of law and equity is concerned. Essentially the question down on whether the defendant could bring a legal remedy (distress) with respect to a lease which formerly would have been regarded as equitable only (effectively an agreement to grant a lease rather than one in proper legal form). Facts:The Defendant on the 29th of May 1879, agreed to grant and the Plaintiff to accept a lease of a mill for seven years at the rent of 30s. a year for each loom run, the Plaintiff not to run less than 540 looms. The lease to contain such stipulations as were inserted in a certain lease of-the 1st of May, which was a lease at a fixed rent made payable in advance, and contained a stipulation that there should at all times be payable in advance on demand one whole year’s rent in a addition to the proportion, if any, of the yearly rent due and unpaid for the period previous to such demand. The Plaintiff was let into possession and paid rent quarterly, not in advance, down to the 1st of January, 1882, inclusive, having run in 1881 560 looms. In March, 1882, the Defendant demanded payment of £1000 14s. 840 as one whole year’s rent for 560 looms at 30s., and £165 as the proportionate part of the rent from the 1st of January last), and put in a. distress. The Plaintiff thereupon commenced his action for damages for illegal distress, for an in- and for specific performance, and moved for an injunction. Fry, J., granted the injunction on the terms of the Plaintiff paying the into Court. The Plaintiff appealed. JESSEL, M.R.

It is not necessary on the present occasion to decide finally what the rights of the parties are. If the Court sees that there is a fair question to be decided it will take security so that the party who ultimately succeeds may be in the right position. The question is one of some nicety. There is an agreement for a lease under which possession has been given. Now since the Judicature the possession is held under the agreement. There are not two estates as there were formerly, one estate at common law by reason of the payment of the rent from year to year, and an estate in equity under the agreement. There is on]y one Court and the equity rules prevail in it. The tenant holds under an agreement for a lease. He holds, therefore, under the same terms in equity as if a lease had been granted, it being case in which both parties admit that relief is capable of being by specific performance. That being so, he cannot complain of the exercise by the landlord of the same rights as the landlord would have had if a lease had been granted. On the other hand, he is protected in the same way as if a lease had been granted; he cannot be turned out by six months’ notice as a tenant from year to year. Be has a right to say, “ I have a lease in equity, and you can only re-enter if I have committed such a breach of covenant as would if a lease had been granted have entitled you to re-enter recording to the terms of a proper proviso for re-entry.” That being so, it appears to me that being a lessee in equity he cannot complain of the exercise of the right of distress merely because the actual parchment has not been signed and sealed. The next question is, how ought the lease to be drawn? And that is a question of some nicety. I do not wish now finally to decide it, and on an application of this kind it is not necessary to do so, but I think the Court is bound to say what its present opinion is, because that is material on the question of what ought to be done until the’ trial. The whole difficulty arises from a single clause. Instead of taking the trouble to state in detail what covenants the lease was to contain they have adopted this short form:— “The lease to be prepared by the solicitor to the lessorand approved by the solicitor to the lessee, and to contain such covenants,...
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