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![handle is hein.slavery/ssactsengr0088 and id is 1 raw text is: NEALE V. RATCLIFF
payable to the end of the term, and that the breaches were to the prejudice of
a very remote reversion. If the judgment of the Court below be reversed generally,
the jury may hereafter give substantial damages. [Parke B. We have no right
to assume that damages have been assessed improperly; there is no bill of ex-
[915]-ceptions. Alderson B. This Court has not decided that the lease has been
determined, but merely that the pleading of the plaintiff below is bad : as to the deter-
mination of the lease we have intimated our opinion ; but that is all.] The costs are
assessed jointly. [Parke B. That certainly creates a difficulty; we cannot tell how
to apportion the costs.]
Hugh Hill, contrh, contended that the Court of Error had power to confine the
reversal of the judgment to the only part of the record which had come in question
before it; and cited Bourne v. Gallife (7 Man. & G. 850), to shew that there was no
objection in principle to an adjustment of costs by the Court.
Parke B. In the case cited there was no difficulty: the Court merely deducted
one sum from another. The judgment of the Court below must be reversed generally:
we cannot confirm it pro tanto without the consent of the plaintiff below. He
might, if he pleased, take the is. damages and 40s. costs found by the jury; but,
as he is not content with this, we cannot amend the judgment; and this rule must be
discharged.
Maule, Cresswell, and Talfourd Js., and Alderson and Platt Bs., concurred.
Rule discharged (b).
[916] NEALE against RATCLIFF AND ANOTHER. Saturday, July 6th, 1850.
Plaintiff and defendants agreed, the plaintiff to let, and defendants to take, a
messuage, barn, stable and outbuildings ; and defendants agreed to keep in repair
the said messuage, buildings and premises, the same being first put into repair
by the plaintiff. In an action of assumpsit for non-repair (declaration alleging
that, although plaintiff, before the breach of promise, put the said messuage,
buildings and premises into repair, yet defendants did not keep the same in
repair; to which defendants pleaded that plaintiff did not first put the said
messuage, buildings and premises into repair; and issue was taken thereon) it
was proved, and found in terms by the jury, that the plaintiff had not put the
whole premises into repair, but part only ; and that defendants had not kept that
part in repair; and the jury gave damages for the part. Held,.1. That the repair
by plaintiff was a condition precedent to the obligation on the defendants to keep
in repair. 2. That, on this contract, the condition precedent could not be divided,
and that plaintiff could not recover for non-repair of any part of the premises
without having first repaired the whole. Quere, whether such a condition
precedent might not be divided, if it related to subject matters clearly distinct in
their nature; as if the contract in question had related to two dwelling houses
entirely separate from each other.
[S. C. 20 L. J. Q. B. 130; 15 Jur. 166.]
Assumpsit. The declaration stated that, heretofore, to wit on 10th May 1845, in
consideration that defendants, at their request, had become and were tenants to plaintiff
of certain premises, with the appurtenances, of the plaintiff, to wit a messuage or
public house called the Swan Inn, situate, &c., together with the house and stable
and other outbuildings thereto belonging, upon and subject to the terms that the
defendants should maintain and keep in good tenantable repair and condition the said
messuage or public house, buildings and premises, the same being first put into good
tenantable repair and condition by the plaintiff, and should deliver up the same in
such repair and condition at the expiration of their said tenancy, defendants then
promised plaintiff to maintain and keep in good tenantable repair and condition the
said messuage or public house, buildings and premises, the same being first put into
such repair and condition by the plaintiff, and that defendants would deliver up the
same in such repair, &c. at the expiration of their [917] said tenancy : and, although
such tenancy continued from thence, to wit until 11th October 1847, and although
plaintiff, after the making of the said promise, and during the continuance of the said
(b) Reported by H. Davison, Esq.
704
15 Q. B. 915.](ViewImageLocal?handle=hein.slavery/ssactsengr0088&div=1&collection=&method=preview&ext=.png&size=3)