is ever which tends to support that: on the contrary, it is shewn that this never was a carriage bridge till within these few years, but was a foot bridge, which was kept in repair by the townships. Where a party is bound to repair a foot bridge, he shall not discharge himself by turning it into a horse or carriage bridge; but still he shall only be bound to repair it as a foot bridge; that pro ratá." Now apply that doctrine to the present case. Here the owners of the abbey lands being immemorially bound to repair the ancient carriage bridge, cannot release themselves from that obligation by reason. of the foot bridge having been added; they remain liable to the burden of repairing the carriage bridge; but the county is liable at common law to repair the foot bridge, which is useful to the public. That case is quite decisive of the present. The issue must be considered as having been found against the defendants: and, consequently, they are liable to repair this foot bridge, and the owner of the abbey lands the ancient carriage bridge. LITTLEDALE J. I am of the same opinion. The question is, Whether that part of the bridge which was made in 1736, is part and parcel of the public carriage bridge which Purkis was bound to repair by reason of tenure? I think the foot bridge, which was erected in comparatively modern times, cannot be considered as having become parcel of the old carriage bridge, repairable by the owners of the abbey lands, but was a distinct structure; and therefore that the verdict must stand for the crown. TAUNTON J. This case is abundantly clear on principle and authority. The issue is, whether Purkis be bound VOL. III. P 1832. The KING against The Inhabitants of MIDDLESEX. 1832. The KING against The Inhabitants of MIDDLESEX. bound to repair the bridge described in the indictment. The allegation in the plea, that he is bound to repair ratione tenuræ, implies an obligation from time immemorial, and the defendants, therefore, were bound to prove such obligation by evidence of repairs done immemorially by the owners of the abbey lands. Now the foot bridge indicted was built in 1736; there could not, therefore, be an immemorial obligation to repair it. In Rex v. The West Riding of Yorkshire (a), certain townships had immemorially used to repair a public foot bridge; and it was there held, that the townships, having enlarged that which had been a foot bridge to a carriage bridge, were liable to repair it to the extent, not of the carriage way but of the foot way only. That case is the converse of this. It is clearly established that the county is not bound to widen a bridge; à fortiori a party bound to repair by prescription is not obliged to repair a foot bridge annexed to a carriage bridge, as this was, within legal memory. I am therefore of opinion that upon the issue here raised, the verdict must be for the crown. PATTESON J. The question is, whether the foot bridge be part of the carriage bridge which Purkis, by reason of the tenure of his lands, was immemorially bound to repair? Now if this adding of the foot bridge be considered a widening of the old bridge, which is putting the case in the most favourable manner for the defendants, still, according to Rex v. Devon, Purkis was not bound to make such widening, or to repair the new part when it was made. Judgment for the crown. (a) 2 East, 358. note. 1832. CATHERINE MANNING and Others against FLIGHT and Another. COVENANT by the plaintiffs as devisees of John Covenant for PE 369 Manning, against the defendants as lessees, for one that before the year's rent reserved by a lease dated 1st of September 1814, which became due on the 29th of September 1830. Plea, that before the arrears of rent became due, the defendants, by indenture dated the 30th of September rent. Plea, rent became due, the de fendants, by deed, assigned all their in- demised pre mises to A, performance of contained in 1829, assigned all their interest in the demised premises B., subject to the payment of to one W. P. Barnard, subject to the payment of rent the rent, and and performance of the covenants contained in the above the covenants lease; and the said W. P. B. did, by the assignment, the lease; and covenant with the defendants to pay the rent during the that he, by the assignment, term, and perform the covenants contained in the lease. covenanted to Averment, that the defendants delivered the lease to him, and that he accepted the same, and entered on the premises by virtue of the assignment. The plea then stated, that W. P. B. being a trader, and indebted to one Lees, on the 16th of October 1829 became bankrupt, and on the 10th of December 1829 a commission issued against him, under which he was duly adjudged a bankrupt: that the arrears of rent became due after the date of the commission, and that after W. P. B. became bankrupt, to wit, on the 31st of January 1830, Lees, the assignee of his estate and effects, declined the lease, of which W. P. B. had notice, and thereupon, within four pay the rent and perform the covenants contained in the lease, that the defendants delivered the and he ac cepted the same, and assignment: the plea then B. became bankrupt, and that the arrears of rent accrued after the date of the com mission that the assignee of his estate declined the lease, and that the bankrupt within fourteen days P 2 teen 1832. MANNING against FLIGHT. teen days after such notice, he W. P. B. delivered up such lease to the plaintiffs. Replication, that the plaintiffs did not accept the lease, or in anywise agree to or accept a surrender of the same, nor had they at any time discharged the defendants from the covenants therein contained, &c. Demurrer and joinder. Hoggins in support of the demurrer. If the plea can be sustained, the replication is bad, and the question is, whether there has been a surrender of the term by operation of law; for if that sufficiently appears on the plea, the acceptance of the surrender by the lessor is wholly immaterial. The 6 G. 4. c. 16. s. 75. enacts, "that any bankrupt entitled to any lease, if the assignees accept the same, shall not be liable to any rent accruing after the date of the commission, or to be sued in respect of any subsequent non-performance of the covenants therein contained; and if the assignees decline the same, shall not be liable as aforesaid, in case he deliver up such lease to the lessor within fourteen days after he shall have had notice that the assignees shall have declined as aforesaid." The object of the legislature undoubtedly was to discharge the bankrupt at all events. Therefore, in Doe d. Cheere v. Smith (a), where a lessee covenanted not to assign, and became bankrupt, and his assignees took to the lease, it was held that his covenant was absolutely discharged by the 49 G. 3. c. 121. s. 19., and, consequently, that if he came in again as assignee of his assignees, he should not be charged with that Now here, if the delivering up of the lease does not amount to a destruction of the term, although covenant. (a) 5 Taunt. 800. the the bankrupt may be discharged from any claim by the lessors, he will be liable over on his covenant with the lessees, to hold them harmless from the payment of rent or observance of the covenants in the lease, and if so, he will not be absolutely discharged. Supposing the bankrupt discharged, the question arises, what has become of the term? It is divested from the bankrupt, and has it become re-invested in the lessees by operation of the statute, or is it destroyed? The statute does not declare the assignment of the term void by the bankruptcy, nor does it empower the lessee, as it does the lessor, to compel the assignees to elect; and supposing that the assignees should refuse to elect, the lessees, if the term be not destroyed, might be liable on their covenant with the lessors, though until the assignees elected, they would be unable to take possession of the premises. The statute empowers the lessor to compel the assignees to elect, and having this advantage, he must also take the burthen. The legislature, therefore, intended, not to draw any line of distinction between the case of a bankrupt lessee and assignee, but that the delivering up of the lease to the lessor by the bankrupt, being the owner of the lease at the time, whether assignee of the lease or lessee, should amount to an actual surrender of it by operation of law. Copeland v. Stevens (a) is an authority to shew that the term remains in the bankrupt till the assignees do some act to manifest their intention to accept the lease; and the statute giving to them an option of refusing the term, and to the lessor the power of forcing them to elect, and the bankrupt being discharged at all events from 1832. MANNING against FLIGHT. |