said goods and chattels as such distress as aforesaid, for and towards payment and satisfaction of said rent so due and owing to him from Defendant, and of the costs and charges of said distress, and incidental thereto; and J. Nicholles before his bankruptcy, and said Plaintiffs, as assignees as aforesaid, since his bankruptcy, had been and were much prejudiced, injured, and damnified by means of the premises, to wit, at &c. There were several other counts, varying the statement of the same injury, and claiming damages for the distress by Caffyn at a time when, in consequence of the payment to Harrison, nothing was due. By the agreement of 10th of September 1828, in consideration of 400l. paid down, and 1200l., with interest, to be paid by instalments in three years, Caffyn agreed to sell Nicholles the furniture on the premises, and covenanted that he would, immediately after the full payment of the sum of 12001. and interest, pursuant to the covenant in that behalf thereinafter contained, well and effectually, by indenture, demise and lease unto the said J. Nicholles, his executors, administrators, and assigns, all that messuage or tenement situate and being No. 21. in Lower Grosvenor Street, in the parish of St. George, Hanover Square, in the county of Middlesex, with the cottage built behind the same, and all the appurtenances thereunto belonging, as the same had been for some time prior to the execution of that agreement, in the occupation of the said J. Caffyn, and of which possession had been or was intended to be given that day to the said J. Nicholles; to hold the same unto him the said J. Nicholles, his executors, administrators, and assigns, from the day of the date of that agreement, for the term of twenty-five years, at the yearly rent of 250l., payable quarterly; that, in such indenture of lease there should be contained the like covenants and agreements on the part of the said J. Nicholles, his exeBb 3 cutors, 1832. HANCOCK V. CAFFYN. 1832. HANCOCK บ. CAFFYN. cutors, administrators, and assigns, as were contained on the part of the lessee in the indenture of lease whereby the said J. Caffyn held the said premises, with others, and also all other usual and reasonable covenants, provisions, clauses, and agreements whatsoever. Nicholles then covenanted that he would, "in the mean time, and until such lease should be granted, well and truly pay or cause to be paid unto the said J. Caffyn, his executors, administrators, and assigns, the said yearly rent or sum of 250l. on the respective days and in the manner thereinbefore appointed for payment of the same; and also well and truly observe, perform, and keep all and singular the covenants and agreements which would be to be performed and kept by him the said J. Nicholles, his executors, administrators, or as signs, in case the said lease was actually granted: Provided always, and the said J. Nicholles did thereby for himself, his heirs, executors, administrators, and assigns, covenant, grant, and agree to and with the said John Caffyn, his executors, administrators, and assigns, that if at any time thereafter, before the said lease should be granted, the said yearly rent or sum of 250l., or any part thereof, should be unpaid for the space of fourteen days next after any or either of the quarterly days of payment thereinbefore appointed for payment of the same, then it should be lawful for the said John Caffyn, his executors, administrators, or assigns, to enter upon the said premises thereinbefore agreed to be demised, or any part thereof, and to distrain for so much of the said quarterly rent as should be in arrear." Damage to a considerable amount having been proved at the trial, a verdict was found for the Plaintiff, with leave for the Defendant to move to set it aside and enter a nonsuit on objections taken at the trial. Jones Serjt. moved accordingly on three objections, First, that the Defendant had no such duty to per form form towards Nicholles as that required at his hands, unless the relation of landlord and tenant existed between him and Nicholles; that such relation could not exist without an actual demise; and that the agreement of September 10. 1828 contained no such demise. Secondly, that if a tenancy could be assumed, and such a duty be implied, the remedy was by action on the written agreement, and not by an action on the Case for a supposed breach of duty.. Thirdly, that the right of action, if any, was one which did not pass to the assignees of the bankrupt. He also objected to the amount of damages. A rule nisi having been granted, The agree Wilde and Spankie Serjts. showed cause. ment of the 10th of September 1828 establishes the rela tion of landlord and tenant, by giving Nicholles immediate possession, stipulating for the payment of rent, and, above all, containing a power of distress. If the relation of landlord and tenant be assumed, it is a consequence of the contract which creates it that the landlord should impliedly be responsible for the quiet enjoyment of the tenant; and for the disregard of this duty the tenant may sue in assumpsit or in case, although the details of the contract are contained in an instrument under seal. In Burnet v. Lynch (a), it was held that case (not covenant,) lay by the assignor against the assignee of a lease assigned by deed poll, upon his implied duty to perform the covenants in the original lease, although the assignor had, by the assignment, parted with all his interest; and although assumpsit might lie, that case was the better form of action for the injury sustained by the assignor in consequence of the assignee's breaches of covenant. 1832. HANCOCK V. CAFFYN. 1832. HANCOCK V. CAFFYN. And this right of action passes to the bankrupt's assignees; for though they cannot sue for an injury to the person of the bankrupt, injury to his property, which diminishes the fund available for creditors, gives the bankrupt's assignees that right of compensation of which the creditors are to have the benefit. In Smith v. Coffin (a), Buller J. said, "The Court is bound to construe the bankrupt laws in the most liberal and beneficial manner for the creditors. I therefore hold, that every species of right, of which by any possibility profit can be made, passes to the assignees." In like manner, ever since the statute 4 Ed. 3. c. 7., executors have been entitled to recover in respect of any damage to the property of their testator, although an action for injuries to the testator's person does not accrue to them. Jones. The stipulation for a lease to be granted after the payment of a certain sum of money is conclusive to shew that the agreement between Nicholles and Caffyn did not operate as an actual demise, but merely as an agreement for a demise: Dunk v. Hunter (b). But even if it operated as a demise, the Plaintiff ought to have sued on the written contract. He cannot resort to an implied contract, where there is a writing to settle the rights of the parties. His remedy, therefore, was by covenant; for though assumpsit or case may lie indifferently where the Defendant fills a certain known character, as carrier or banker, yet in ordinary cases, if there be a written contract, the party aggrieved is confined to such remedy as that contract affords him. At all events, this right of action does not pass to the assignees: they could not have sued in trover, for the goods were rightfully taken; Wallace v. King (c); and if they could not recover the goods, neither can they recover for an injury occasioned (a) 2 H. Bl. 463. (b) 5 B. & Ald. 322. (c) 1 H. Bl. 13. by by taking away the goods. There are no words in the bankrupt act, 6 G. 4. c. 16., large enough to pass a right of this description. TINDAL C. J. I think this rule ought to be discharged. The first objection which has been made to the verdict for the Plaintiff is, that an allegation on the record of a demise by the Defendant Caffyn to Nicholles, has not been made out in evidence, and that the relation of landlord and tenant between them has not been established. The evidence adduced to establish that point was the agreement of the 10th of September 1828; and undoubtedly, in its main object and purport that agreement appears to be executory; for if we look at the whole situation of the parties, much remained to be done before the contract would be complete. Part of the agreement was, that upon payment of a stipulated sum, a lease by indenture should be granted; and if that had been the whole, it would have been difficult to say that the relation of landlord and tenant subsisted: but Nicholles was to be put into immediate possession; he was to pay rent on certain specified days; and it is difficult to say that the mere stipulation for a future lease shall defeat the relation which arises upon such a stipulation for payment of rent. However, it is not necessary to say in this case that there was a letting by actual demise; it is sufficient to say that the relation of landlord and tenant existed, although the lease by indenture had not been executed; and if any doubt on that point could arise from the terms of the agreement, Caffyn has ended such doubt by his own voluntary act, for in October following, before any lease by indenture had been executed, he puts in a distress for rent, which he could not legally do unless the relation of landlord and tenant existed. He cannot be allowed to distrain on the supposition that a tenancy existed, 1832. HANCOCK V. CAFFYN. |