The plaintiff claims £281 and interest until judgment.

date, &c., of the release should be set forth in the statement of defence. A debt of record can only be released by deed.

Discharge.]-One defence formerly available on this ground, viz., the arrest of the defendant under a ca. sa., is no longer open to him, imprisonment for debt being now abolished except under certain circumstances.

Where a person is imprisoned for a debt in any of the cases in which he is still liable to arrest, the debt is not discharged.

There can be no defence of accord and satisfaction to this action. (1 Chitty's Pleadings, 9th ed., 464.)

Matter impeaching calidity of judgment.]-The defendant is not at liberty to plead any facts which might have been set up as a defence in the original action (1 Chitty, 7th ed., 512.) Neither can facts which may afford ground for an application to set aside the judgment be raised by way of defence in an action on the judgment. But a matter which would be a ground for an absolute and unconditional injunction against the continuance of this action, and which even formerly might have been set up as an equitable defence, may be set up as a defence; or the defendant may claim an injunction on the strength of it in his statement of defence.

Whether the former requirement, viz., that the facts must be such as to be ground for an absolute and unconditional injunction, would now be necessary for the purpose of a defence, is not easy to determine. This would not apparently be necessary to found a claim to an injunction, as by the 25 section, sub-section 8, of the Judicature Act of 1873, injunctions may be granted, either conditionally or unconditionally, by all the divisions of the High Court.

A matter which is the subject of error cannot be set up as a defence to an action on the judgment. (Dick v. Tolhausen, 4 H. & N. 695.)

The judg ment sued on cannot be impeached on the merits.

This rule applies to foreign

The principle already laid down that any matter which could have been set up as a defence on the merits in the original action cannot be pleaded to an action on the judgment, applies to actions on the judgments of foreign Courts. (Henderson v. Henderson, 6 Q. B. 288: De Cosse judgments. Bressac v. Rathbone, 6 H. & N. 301 ; 30 L. J. Ex. 238: Munroe v. Pilkington, 31 L. J. Q. B. 81, 89: Castrique v. Imrie, L. C. 4. H. L. 414; 29 L. J. C. P. 321; 8 C. B. N. S. 1, 405.)

Neither will a defendant be permitted to defend on the ground that the foreign judgment was erroneous in point of law and on the merits; or that fresh evidence had been discovered since the judgment, showing it to be erroneous; or for a mistake in the law of the foreign state in which the judgment was given (Munroe v. Pilkington, 31 L. J. Q. B. 86, 89); or that evidence was admitted which would not be admissible by English law. (De Cosse Bressac v. Rathbone, supra.)

A foreign judgment may, however, be impeached on any of the fol- Grounds on lowing grounds, viz.: (1) that the Court had no jurisdiction in respect which a of the matter of the suit or of the parties (Ferguson v. Mahon, 11 A. & foreign E. 179; and see Robertson v. Struth, 5 Q. B. 941); (2) for errors on the judgment face of the judgment, and for this purpose the reasons assigned in the bad. judgment form part of it (Reimers v. Druce, 26 L. J. Chan. 196; 23

The defendant says that:

Defence.

1. The said Court of was not a Court duly holden or having jurisdiction according to the laws of France over the subject-matter of the said suit.

2. The action was commenced by process and the defendant was not at the time of the commencement thereof or for ten

Beav. 150); (3) perhaps for repudiating English law where it was necessary to decide the case (Reimers v. Druce, supra; Semson v. Fogo, 29 L. J. C. 657; Munroe v. Pilkington, 31 L. J. Q. 81. But see Godard v. Gray, L. R. 6. Q. B. 139); (4) that the judgment was contrary to natural justice (Buchanan v. Rucker, 1 Camp. 63); (5) that the judgment was not final and conclusive (Patrick v. Sheddon, 2 E. & B. 14; Frayes v. Worms, 10 C. B. N. S. 149; Plummer v. Woodburne, 4 B. & C. 625); (6) that the defendant was not summoned, and had no notice of the proceedings When a (Buchanan v. Rucker, supra; Reynolds v. Fenton, 3 C. B. 187.) It was foreign laid down in Schibby v. Westenholz (L. R. 6 Q. B. 155) that a judgment judgment of a foreign Court obtained in default of appearance against a defendant, may be cannot be enforced in an English Court where the defendant, at the time impeached. the suit commenced, was not a subject of nor resident in the country in which the judgment was obtained, for there existed nothing imposing on the defendant any duty to obey the judgment, and see Rousillon v. Rousillon (14 Ch. Div. 351). (7) That the judgment was obtained by fraud. (Ochsenbein v. Papelier, L. R. 8 Ch. 695.) This principle has been sanctioned by the Court of Appeal in the very recent case of Abouloff v. Oppenheimir (10 Q. B. Div. 295) where it was laid down that a foreign judgment obtained by the fraud of a party to the suit in the foreign Court cannot be afterwards enforced by him in an action brought in an English Court, even although the question whether the fraud had been perpetrated was investigated in the foreign Court, and it was there decided that the fraud had not been committed. (8) That the judgment is admitted to have been erroneous (Meyer v. Ralli, 1 C. P. D. 358.) Other grounds on which foreign judgments may be controverted will be found stated 2 Smith's L. Cas.. 7th ed., 823-825. And see Story's Conflict of Laws, 7th ed., P. 732.

Appeal pending no defence.

It was held in Godard v. Gray (L. R. 6 Q. B. 139), that a defendant cannot set up as an excuse for not paying money awarded by a judgment of a foreign tribunal having jurisdiction over him and the cause, that the judgment proceeded on a mistake as to English law, and that it made no difference that the mistake appeared on the face of the proceedings.

The fact that an appeal is pending against the judgment cannot be made the ground of a defence to an action thereon, though it can be made the ground for staying execution on the judgment in such action. (Munroe v. Pilkington, 31 L. J. Q. B. 81.)

Formerly, if it was desired to have execution on a judgment obtained in England on property in Ireland or Scotland, or conversely, it could not be done without first bringing an action on the judgment in the country in which it was sought to have execution. Now, however, by 31 & 32 Vic. c. 54, the holder of a judgment in one country can have execution on it by registering it in the country in which he wishes to issue execution; and by the 45 & 46 Vic. c. 31, the judgments of inferior courts in England, Ireland, and Scotland can be registered and enforced in one another.

years previously domiciled within the jurisdiction of the said Court, and the defendant was not at any time before the recovery of the said judgment served with any process in the said action, nor did the defendant appear in the said action, nor had he before the recovery of the judgment any notice or knowledge of any process or of any proceedings in the said action, or any opportunity of defending himself therein.

3. The defendant was not subject to the laws of France at any time during the said action, nor was he then nor is he now under any obligation to submit to the jurisdiction of the said Court of

Action of Detinue based on a Foreign Judgment In Rem.

1. By a judgment dated the 14th of November, 18—, of the Supreme Court of the United States, a court having jurisdiction in that behalf, the steam-ship "Alfrida" was condemned as the plaintiffs' lawful prize and adjudged to be and it is the property of the plaintiffs.

2. The defendant detained and detains from the plaintiffs the plaintiffs' said ship which is now lying at Kingston-onHull.

The plaintiffs claim a return of the said ship or her value and £10,000 for her detention.

Landlord and Tenant (a).

Statement of Claim for Rent.

The plaintiff's claim is for £65, being one quarter's rent for the quarter ending Ladyday, 1883, of the house and premises

(a) The relation of landlord and tenant is constituted either by deed, writing, or parol agreement, accompanied or followed in each case by delivery of possession. In two cases, viz., tenancy at will and tenancy by sufferance, it may arise apart from any express agreement. Leases for a term not exceeding three years from the making thereof, whereupon the rent reserved during such term shall amount to twothirds of the full improved value of the thing demised, may be either by agreement in writing simply or by word of mouth (29 Car. 2, c. 3, ss. 1 and 2).

All leases for above that period are required by the statute just mentioned to be in writing, signed by the parties making the same, or their

How relation of

landlord

and tenant created,

When it must be created by deed.

When covenants

"run"

with the land.

Lessor

bound to

give possession. When

lessee is

not bound to enter.

The covenant for

quiet enjoyment.

No. 11, High Street, Droitwich, due under an agreement in writing dated April 2, 1882, and made between the plaintiff and the defendant.

agents authorised by writing, and if they are not so made, they will only create tenancies at will. And now, by the 8 & 9 Vict. c. 106, s. 3, it is provided that leases required by law (i.e., by the Statute of Frauds, 29 Car. 2, c. 3) to be in writing, shall be void at law, unless they are made by deed. It has, however, been held that an instrument purporting to be a lease for over three years was good in equity, as an agreement for a lease on which specific performance could be decreed. (Rollason v. Leon, 7 H. & N. 73.) Now that the distinctions between the doctrines of law and equity are abolished, and those of the former which were in conflict with the latter are no longer to have any effect in any Court, it follows that such instruments would not be treated as void in the Queen's Bench Division.

Leases of incorporeal hereditaments, such as of tithes, or of the right to shoot over land for even the shortest period, require to be by deed. (Gardiner v. Williamson, 2 B. & Ad. 336; Bird v. Higginson, 6 A. & E. 824.) But see Adams v. Clutterbuck (10 Q. B. D. 403) as to the effect of this.

Where a lease is in two parts, one party executing each part, if there is a material variation between the two parts, it is void for want of mutuality. (Wynne's Case, L. R. 8 Ch. 1002.)

The persons who are immediately entitled to bring actions and liable to be sued on the covenants in leases are the lessor and lessee and their assignees.

At common law certain covenants "run" with the land or thing demised, i.e., the burthen and benefit of the covenants pass to the assignees of the leases. These covenants are:-1st. Where the covenant refers to a thing in esse, parcel of the thing demised, as to keep a house on the demised premises in repair. The benefit of this covenant passes to the assignee of the lease, even though the word "assigns" be not used in the covenant. 2nd. If the covenant relates to something to be done on the land demised, as to build a wall thereon, it runs to the assignee, if the covenant has been made for the lessee and his assigns. Covenants of this kind did not, however, run with the reversion, i.e., pass to the assignee thereof, until the 32 H. 8, c. 34 provided that such assignees should be entitled to the same rights and subject to the same liabilities on covenants in the lease as their assignors. It has been held that this statute only applied to covenants running with the land. (See Spencer's case, 1 Smith's L. C. 7th ed., 60.)

Liabilities on execution of lease or agreement.]-The lessor binds himself to give the party to whom he demises possession, and not a mere right to take possession from a wrongdoer by an action of ejectment, and the lessee binds himself to accept possession and pay the rent. (Stanley v. Hayes, 3 Q. B. 105.) If a party agrees to take a house from a particular day, provided certain things are then done by the landlord, and the things are not done, he may decline to take possession. (Tidey v. Mollett, 33 L. J. C. P. 235.) A person who has contracted orally for the hire of realty, and who neglects or refuses to accept possession, cannot be sued on such agreement for not taking possession, nor on any oral promise to pay rent, nor for use and occupation. (Addison on Contracts, 7th ed. 555.)

Covenants by lessor.-Quiet enjoyment.]-Apart from an express covenant for quiet enjoyment, the use of the word "demise" or "let in an indenture of lease imports such a covenant. (Hall v. City of London Brewery, 31 L. J. Q. B. 257.) But if there be an express covenant

The defendant says that :

Defence.

1. Since April 2, 1882, and before December 25, 1882, the plaintiff had ceased to have any estate or interest in the premises demised.

either as to quiet possession or title, no implication arises from these words. (Line v. Stephenson, 5 Bing. N. C. 183; Adams v. Gibney, 6 Bing. 656.) The liability on implied covenants ceases with the estate of the lessor, and, where he is a tenant for life, does not attach to his executors. (Adams v. Gibney, supra.) On a parol demise the law implies a promise of quiet enjoyment, but not for good title. (Bandy v. Cartwright, 8 Ex. 913.) There is no implied warranty in a lease of a No implied house or land, that it is reasonably fit for habitation or cultivation. (Sutton v. Temple, 12 M. & W. 52; Hart v. Windsor, ib. 61.) It is different where there is a contract for letting a house and furniture; and if they are unfit at the commencement of the term the tenant does not obtain that for which he contracted, and may rescind the agreement. (Wilson v. Finch-Hatton, 2 Ex. Div. 336; 46 L. J. Exch. 489; 36 L. T. 473; 25 W. R. 537.)

warranty

of fitness

for habita

tion, &c.

What constitutes a breach of covenant or promise for quiet enjoy. What is a ment.]-This being a covenant against disturbance by any person having breach of lawful title, will not be broken by a tortious disturbance by a stranger. covenant (Dudley v. Folcott, 3 T. R. 587.) A covenant for quiet enjoyment against for quiet A., "and all persons by his means, title, or procurement," is violated by enjoyment. an entry by A.'s wife, in whose name A. purchased jointly with his own. (Butler v. Swinerton, Palm. 339.) An entry on the demised premises and distress for land-tax due from the lessor before the demise is not a breach of the covenant, for that is not by a person claiming through but against him. (Stanley v. Hayes, 3 Q. B. 105.) But semble if the tenant pays out the distress he may recover the amount against his lessor as money which the lessor was legally compellable to pay, and the tenant has been compelled to pay. An entry by a person claiming through the lessor is not the less a breach because the lessee has instigated it. (Young v. Raincock, 7 C. B. 310.) Merely forbidding the tenant's subtenant to pay him rent is not a breach. (Witcheot v. Linesey, 1 Browl. 81.) Restraining the tenant by means of legal proceedings not from the possession but from enjoying the premises in a particular manner, as using them as a beershop, is not a breach. (Dennett v. Atherton, L. R. 7 Q. B. 316, Ex. Ch.) A refusal by a lessor to give or to allow the plaintiff to take possession, cannot be made the ground of an action for breach of covenant or promise for quiet enjoyment. (Hawkes v. Orton, 5 Ad. & E. 367.) The proper remedy is specific performance.

This action may be brought on the covenant for quiet enjoyment implied from the word demise. (Com. Dig. Cov. (A. 4)). And an action for breach of contract for quiet enjoyment lies on the promise of quiet enjoyment implied from a parol demise. (Bandy v. Cartwright, 22 L. J. Ex. 285; Hall v. City of London Brewery Co., 31 L. J. Q. B. 257.)

Measure of damages.]-Where the tenant was sued for trespass by Damages another person claiming under the lessor, and gave notice of the action recovered to him (lessor), but the latter took no notice thereof, and the tenant then by lessee. defended the action, and a verdict was recovered against him, it was held in an action by the tenant against the lessor, that the plaintiff was entitled to recover the amount of the verdict and costs, his own costs in defending the action, compensation for the loss of the land, and also the