1815. HARRIS against BAKER. At the trial before Lord Ellenborough C. J. the case, as it appeared upon the statement of the plaintiff's counsel, was thus: the highway in question had been cleansed in the beginning of May, and in doing it the labourers heaped the scrapings in round heaps, between two and three feet high, and about two yards asunder, on both sides of the road; and on that side on which the plaintiff's house was, some heaps stood before his house and shop about three feet from the curb-stone, which, from having remained there nearly a month, had become hard, and were stated to be an annoyance to the housekeepers and passengers. In the evening of the 30th of May, after it was dark, there being no lamps by the road side, the plaintiff's wife having occasion to cross the way, on her return home fell over one of these heaps, and broke her arm. His Lordship was of opinion upon this case that the trustees were not liable to damages for the injury complained of, they being too far removed from the cause of it; and he directed a nonsuit. Park now moved for a new trial, upon the ground that the leaving the heaps on the side of the road, without any lamps to light it, was in violation of the duties prescribed to the trustees by the act of parliament, from which a particular injury had accrued to the plaintiffs, and therefore the plaintiffs shall have their remedy for it. And as to the defendants being too far removed from the injury, the rule in such cases is respondeat superior, as the plaintiffs cannot possibly know what hand was the immediate cause of the injury. And so it was ruled in Matthews v. West London Water Works Com Company (a); and in Bush v. Steinman (b), though Eyre C. J. seems to have doubted at first, on account of the remoteness of the persons from the act complained of, whether they were liable in damages for an injury arising from that act, yet he was afterwards satisfied that the action would well lie. Here the clerk being substituted for the trustees, there is no such difficulty as occurred in Yarborough v. The Bank of England. (c) Lord ELLENBOROUGH C. J. It does not appear by the act of parliament that this action is maintainable against the trustees. The act indeed empowers them to cause such number of lamps to be provided as they shall think necessary: but suppose they did not think necessary to provide any lamps, can it be said that an action would lie against them upon that account? If by omitting to put up lamps where it is necessary they are guilty of a breach of public duty, they may be indicted for it. But to hold that every trustee of a road is liable in damages for such an accident as this, would, I conceive, be going farther than any case warrants. LE BLANC J. In Bush v. Steinman, the limeburner's servant who committed the nuisance from which the injury arose, was considered as being in the employment of the owner of the house, and working for his benefit, and that the owner was bound to see that those employed by him did not commit any nuisance. Per Curiam (d), Rule refused. 1815. HARRIS against BAKER. (a) 3 Campb. N.P.C. 403. (b) 1 Bos & Pull. 404. (c) 16 East, 6. (d) Dampier J. had left the court. 1815. Monday, GOODRIGHT, on the Demise of NICHOLLS, against MARK. Lease of lands N ejectment, tried before Dampier J. at the last summer assizes for Cornwall, the case was this: by indenture for 21 years, with proviso that it should be determin able, by lessee Ann Elford, being seised in fee, by indenture, (4th of June 1800,) demised the lands in question to one Lukey or lessor, at the and the defendant, for 21 years, from Lady-day then last, at a yearly rent, and subject to covenants, with a end of the first 7 or 14 years, and memoran dum, indorsed proviso that it should be determinable by the lessees at the end of the first seven or fourteen years, upon twelve months' notice. Upon this indenture, before its execution, and of the same date with the indenture, was six years after the execution of the lease, "of its being agreed between the parties previously to the execution, that not dispossess indorsed a memorandum, by which it was agreed that the lessor shall the lessor should have the same option of determining the lease as the lessees, upon a like notice. Afterwards, on the 21st of June 1806, (Lukey being then dead,) the following memorandum was indorsed upon the inden nor cause the lessee to be dis possessed of the said estate, but to have it for the term of 21 years from this present time;" which memorandum was signed by the parties, and stamped with a ture: "Memorandum of its being agreed by and between the parties within named, previously to the execution of the within deed, that the said Ann Elford, her heirs lease stamp, but and assigns, shall not dispossess, nor cause the said John Mark to be dispossessed of the said estate, but to have it for the term of 21 years from this present time; dated this 21st June 1806. not sealed: Held that the lessor might, notwithstand ing, determine the lease at the end of the first 14 years; for the memorandum did not operate as a new lease and surrender of the first lease. (Signed) A. Elford. J. Mark. This memorandum was stamped with a lease stamp. In 1812 A. Elford died, having devised the lands in fee to to the lessor of the plaintiff, who, on the 20th of March 1813, gave notice to the defendant of her intention to determine the lease at Lady-day 1814, and after the expiration of that time brought this ejectment. The defendant rested his defence upon the last memorandum, contending 1st, that it operated as a dispensation by the lessor of the proviso contained in the first memorandum for determining the lease by the lessor, (which it was admitted was to be taken as part of the lease); or 2dly, that it amounted to a new lease to the defendant. The learned Judge ruled upon both points against the defendant; upon the 1st, because otherwise the last memorandum, which was not under seal, would have the effect of a release of that which was under seal, which it could not have; upon the 2d, because it could only be a new lease by operating as a surrender of the former lease, which seemed plainly against the intention of the parties, that a lease without any rent or covenants should be substituted for a lease which contained both. So there was a verdict for the plaintiff. A rule nisi having been obtained in last Michaelmas term for entering a nonsuit, or for a new trial upon these points, Burrough and Casberd now shewed cause, and denied th at the memorandum had any force whatever. For considering it as a lease for a farther term, which it purports to be on the face of it, it is absolutely void, because it is a grant of a reversion'; and a reversion cannot be granted to pass without deed; for a deed is of the very essence of the grant of a reversion. There fore the utmost that it can amount to is an agreement which may be operative in a court of equity. Gifford, 1815 GOODRIGHT d. NICHOLLS against MARK. 1815. GOODRIGHT d. NICHOLLS against MARK. Gifford contrà, argued that it was plainly the intention of the parties to the memorandum to give to the lessee an absolute interest in the term, instead of an interest determinable by the lessor, that is, to discharge the power of the lessor to determine it. And though a covenant cannot be discharged but by an instrument under seal, yet it is otherwise with a condition, which the proviso in this case, that the lessor may determine the lease, is. For as conditions may be made and annexed to any estate of a thing grantable without deed, which this term was, without any writing at all (a), so may they be discharged without writing; and therefore a condition broken may be discharged by an act in pais. In like manner the lessor in this case may dispense with the condition in his favour for determining the lease, by an agreement not under seal. But granting that for want of a seal it cannot operate as a discharge, yet if the Court see a plain intention, they will give effect to it in such manner as by law they may. And therefore the agreement shall operate as a demise; the words, " fhall not dispossess or cause to be dispossessed, but to have it for 21 years," being sufficient words of demise; and then the taking such new lease will no doubt be a surrender of the former lease, albeit the second lease be by word only, and the first lease be by deed (b). And in that case, the tenant will not hold under the second lease discharged from the rent and covenants, because the tenancy under the second lease will impliedly be subject to the same rent and covenants as in the first. (a) Sheph. Touch. 116. 4th edit. (b) Sheph. Touch. 300. 3 Bac. Abr. Leases, (S.) 3. Dyer, 140. Abr. 496. pl. 11. 2 Roll. The |