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He alleged that the non-payment of the rent due on the 26thNovember, 1896, was due to a misunderstanding of the terms ofthe lease.
On the 20th February, 1897, the defendant in this suit instituteda cross action in the same Court, claiming to have the leasecancelled on the ground of the non-payment of the rent due onthe 26th November, 1896.
By consent the two actions were tried together. No evidencewas called on either side, but the case was decided on thepleadings and the admissions of counsel.
The District Judge found (1) that the lessor was not entitledto cancellation of the lease; (2) that his re-entry on the laudwithout lawful authority was unlawful: (3) that the respondentsfailed to fulfil the lease agreement in so far that they did not paythe rent on the day specified: (4) that in consequence of suchfailure they could claim no benefit under the lease until paymentor proved tender of the amount, and that neither party is entitledto damages up to the institution of the action ; (5) that the lessorhad no ground for refusing to accept the rent when tendered,and has therefore remained in wrongful possession. The DistrictJudge ordered that the lessee be restored to possession, and thatthe lessor pay damages at the rate of Rs. 25 a month from the dateof the commencement of his action until restoration to possession,together with the costs of both suits, and that the money paid intoCourt be paid unto him.
The lessor appealed against this judgment.
Domhorst, for appellant.
Wendi, for respondents.
11th October, 1898. Bonsbk, O.J. (after stating the facts ofthe case):—
There is no doubt that the appellant was wrong in taking theiaw into his own hands and re-entering without an order of Court,and the District Judge- was quite, right in so deciding. Therespondents were entitled to be restored to possession and torecover damages for unlawful dispossession. But the questionarises whether the appellant was not entitled to succeed in hiscross action. Ts there any reason why the Court should notenforce the express agreement of the parties that, if the rentwas not punctually paid, the lessor should be entitled to benefit VThe doctrine of the English Court of Chancery was that theobject of such an agreement was only to secure to the landlord the
October 11.
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October 11.Bonser.C.J.
payment of his rent, and the principle of the Court is—whetherright or wrong is not the question—that if the landlord has hisrent paid to him at any time it is as beneficial to him as if it werepaid on the prescribed day (Bowser v. Colby, 7 Hare, 130).
The origin of this doctrine is not quite clear, but Lord Eldon,who strongly disapproved of it, styling it a principle utterlywithout foundation and unjust in its operation in most cases,found it too strongly established to be shaken (Hill v. Barclay, ISVes., pp. 58, 61). The Legislature, however, interferred to confinethis doctrine within more reasonable limits, and by 4 Geo. 2, c. 28,provided that the tenant should be barred of all relief unless hefiled his bill within six months after execution of the judgmentof ejectment. Before that statute he might at any indefinite timeafter he was ejected have filed his bill and been relieved againstthe effect of mere non-payment of rent.
Did the doctrine of the English Court of Chancery prevail inthe Roman-Ductch Law ? My brother Withers in Sanford v.Don Peter (2 S. C. R. 35) stated that he was unable to find anyauthority for the proposition. There is no doubt that the oldEnglish Chancery Judges went further than would at the presentday be deemed consistent with sound public policy in interpretingagreements, not by the intention of the parties as expressed inthe documents, but in accordance with their views of what wasright and proper.
Van Leeuwcn states the law thus: ‘‘ The lease expires if, the“ lease being made for some years on condition that the rent should“ be paid on fixed periods without any delay, the tenant be negligent“ in satisfying the same in due time ” (Van L. Gens. For., bk. IV.,chapter 21, section 7). From this it is clear that an agreement by alessee that, if the rent were not paid punctually, the lease should bedetermined, was not considered by the Roman-Dutch Law as beingcontrary to public policy. Of course there may be circumstancesof fraud, accident, or mistake which would render it inequitablethat such an agreement should be enforced ; and this is all thatin my opinion was intended to be laid down by this Court in thecase to which I have referred. I do not understand that theCourt intended to hold that the unrestricted doctrine of the oldEnglish Court of Chancery was in force in this Island. In thepresent case I can find no circumstances, either alleged or proved,which would render it inequitable that the parties should bekept to theii' bargain.
In my opinion the appellant was entitled to judgment in thisaction. As regards the respondents’ action, the proper order willbe that it be dismissal without costs.
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October II.
When the pleadings cover all the points in dispute, there is noharm in leaving the case for the Court's decision.
But it is rarely safe in this country to adopt that course, for ithappens far oftener than not that the pleadings do not exhaust allthe points in dispute, and an examination of the parties is nearlyalways necessary to a-sceratin exactly what the facts are and whatthe contentions on both sides are. In this case I should haveliked to ask the lessees what good cause they had to show whythey should not surrender the premises which they had bargainedto do in case they failed to pay the rent punctually.
The modern doctrine seems to be that parties to contractsshould be bound by their bargains. It has a business-like ring,and the rule is a good working one, but I am not certain that itshould be an inflexible rule. If the circumstances under which acontract is made remained constant, then it would be all verywell, but a state of things may emerge in which it would beunconscionable to demand the ground leased. As to what our lawon the point is, I have little more to say than what I did in thecase of Sanford v. Don Peter. I am as little sure about it as I wasthen, and until the matter has been much more fully discussed Idecline to commit myself to any positive opinion.
For the lessor a solitary passage of Van Leeuwen was relied on.In book IV. of the Censura Forensis (chapter 22, tit. 3) theauthor states this proposition of law as to letting and hiring : Si“ is qui ad quinquennium aut complures annos, ut plurimum in“ prcediis rusticis fieri folet, prcedium ea lege locavit, ut singulis“ annis solvatur merces constituta, adersus conductorem, ut con-“ ductionis jure cadat, et cedibus expellatur, actionem habet."
If this author means that in all circumstances the landlordwould be entitled to have his leased buildings restored to him, Iquestion if the authorities to whom he refers completely bearhim out. The attitude of the Roman lawyer in dealing with acase of this kind would, I imagine, be somewhat like this : If atenant wants to keep his premises, he must observe his obligations.If he fails to pay his rent as and when he has bargained to do, andhe has expressly consented to let the landlord resume possessionin the event of his failing to pay rent according to his stipulations,he cannot ask the Court to prevent the landlord from resumingpossession of his premises if he, the tenant, does so fail to pay therent (see Dig. XIX., tit. 2,54, section 1). Justinian (in his Institutes,
Withers, J.—
I agree with the decision of the Chief Justice. The partieshave chosen to let the case be decided on the pleadings, and on thepleadings I think that the lessor is entitled to succeed.
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October 11,Withkrs, J.
L. 3, T. 24, De Locatione el Conductions, 6) says, “ Conductor“ omnia secundum legem conductionis facere debet el, si quid in lege“ prcetermissum fuerit, id ex bona el aequo debet prcestare; ” butwhen a landlord comes to Court to exact the payment of rent withinterest (mora) and to demand the expulsion of the tenant as well,in accordance with a stipulation to that effect in the contractof lease, I am not sure that he would have decree for re-entry as amatter of course.
I am inclined to think that the Roman-Dutch lawyers wouldgovern themselves by the principles observed in cases of penalstipulations in contracts. Those principles are stated by Voet inhis book on the Pandects (L. 46, tit. I, l. 13):—“ Denique moribus“ hodiernis volnnt, ingente poena conventioni apposita, non totam“ poenam adjudicandam esse, sed magis arbitrio judicis earn ita“ oportere mitigari, Ut ad id prope reducatur ac restringatur“ quanti probabiliter actor is interesse potest."
I prefer to think for the moment that each case should bedecided on its own peculiar circumstances, it being clearly under-stood that very good cause must be shown by the party who desire.sto escape from the terms of his contract why those terms shouldnot be strictly observed.