GILL AND ANOTHER v LEWIS AND ANOTHER [1956] EWCA Civ 2

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL.

[1956] EWCA Civ 2

Case No Case No.:

Venue Royal Courts of Justice

Between

GILL AND ANOTHER

LEWIS AND ANOTHER

Before

Lord Justice Singleton

Lord Justice Jenkins

Lord Justice Hodson

MR CHRISTOPHER GRUNDY (instructed by Messrs Pettiver & Pearkes)

appeared on behalf of the Appellants (Plaintiffs).

MR C. E. ROCHFORD (instructed by Messrs Green & Underhill)

appeared on behalf of the Respondents (Defendants).

Date 14 March 1956

LORD JUSTICE SINGLETON :

[1]I will ask Lord Justice Jenkins to give the first Judgment. LORD JUSTICE JENKINS: The Appellants in this case, who were Plaintiffs in the action, are Mr Reginald Edwin Gill and Miss Edna Bradshaw. They sued as personal representatives of the late Ida Janet Dufour Cole. The action concerns certain leasehold premises, to be later described, which form part of the estate of Mrs Cole. The Respondent Defendants are a Mr Archibald Lewis and a Mr Neville Wright. They are the tenants of the leasehold premises in question. The action was brought by the Plaintiff executors against the Defendant tenants for non-payment of rent and (as will hereafter appear) judgment, including an Order for possession, was obtained against one of them. They both thereupon applied for relief from forfeiture for non-payment of rent under the provisions of section 46 of the Judicature Act, 1925, read in conjunction with sections 210, 211 and 212 of the Common Law Procedure Act, 1852. The Master held the Defendants entitled to relief. On appeal Mr Justice Pearson in chambers affirmed the Master's decision, and the Plaintiffs now appeal to this court. The premises in question consisted of two adjoining houses, Nos 90 and 92 Ifield Road, Kensington. They were held under two separate leases, the earlier in date being the one which comprised No 92. That was a lease for five years from 25th December, 1952, at a rent of £375, paid quarterly in advance. The lease of No 90 was dated 1st October, 1953, and that was for a term of ten years from 29th September, 1953, at a rent of £450, payable quarterly in advance; making £825 in all for the two houses. The parties to the lease in each case were Mrs Cole, as landlord, and the two Defendants as tenants. The leases contained various covenants - to use the premises as private dwelling-houses only, with an exception as regards the ground floor and basement, which could, I think, be used for office purposes; not to cause any nuisance or annoyance to the landlord or adjoining owners; and not to underlet or part with possession without the consent in writing of the landlord. There was the usual power of re-entry in the event of the rent being unpaid for 21 days. It is said against the Defendants that they were always bad payers; and the facts seem to some extent to bear that out. It is also said that when it was sought to improve their performance in this respect by legal proceedings they were difficult to find. Two actions in respect of rent in arrear were brought before the present action. In the first, a Writ was issued on 26th March, 1954. It was a claim for rent only: there were no claims for possession or tor breach of covenant other than the covenant to pay rent. In that action the claim was for rent due in March, 1954. The Plaintiffs found it impossible to serve the Defendant Wright, who could not be found; and in the result, on 6th July, 1954, judgment was obtained against Lewis alone for the amount of the arrears. That rent was later paid, but the complaint is made that the costs were left outstanding for a long time. The second of the two previous actions was begun by a Writ dated 30th June, 1954, and the claim was for rent due in June 1954, again without any claim for possession. On this occasion an Order for substituted service was obtained against the tenants on 19th July, 1954, and on 26th July, 1954, judgment was obtained against both Defendants for the rent in arrear and costs. There again, it is said that, if those costs have been paid now, at all events it was a long time before they were paid. Mrs Cole died on 22 January 1955; and the Plaintiffs obtained Probate on 11th March, 1955. On 1st April, 1955, the Writ in this action was issued. The relief claimed differed from that in the previous actions, in that possession was claimed on the strength of the non-payment of rent, the claims being for possession of Nos. 90 and 92, arrears of rent and mesne profits. On this occasion, in contrast to the first, it was found possible to serve Wright, but Lewis was not to be found. In the end it appeared that he had been sent to prison over a matter to which I will later refer. The Defendant Wright, although served, did not immediately appear to the action, but he and Lewis entered appearances on 13 July 1955. I think that Lewis was never in fact served, but by arrangement with Wright appearance was entered for both of them, and I suppose service was waived so far as Lewis was concerned. On 17 May, 1955 (the Defendant Wright at this stage not having appeared and the Defendant Lewis not having been served) judgment in default of appearance was signed against Wright alone. Before the signing of judgment against Wright, £400 was paid off the total of £412 10s. 0d. owing for rent. The position thus was that while the bulk of what was due for rent was paid before the date of the judgment, there was a small balance outstanding at that date consisting, apart from costs, of the sum of £12 10s. 0d. It appears that on 20th June 1955 -- that is to say, after the issue of the Writ in the action, and indeed after judgment had been signed against the Defendant Wright -- the Defendant Lewis was convicted of two indecent assaults on boys; and it appears, further, that these assaults were committed at No 92, Ifield Road. The Defendant Lewis was prosecuted, and he was sentenced to two years' imprisonment. It appears that the Defendant Lewis is a coloured man. He apparently is a singer or entertainer, and the Defendant Wright is his manager. I gather that in the ordinary way they spend much of their time, or used to spend much of their time, touring the country giving performances. The facts being as I have stated them, both Defendants, having at length entered appearances on 13th July, 1955, applied to the court for relief from forfeiture, and they made that application under section 46 of the Judicature Act, 1925, read in conjunction with sections 210, 211 and 212 of the Common Law Procedure Act, 1852. As I have already said, when the Summons came before the Master he granted relief; and Mr Justice Pearson affirmed his decision on 11th October, 1955. The learned Judge, having considered the terms of the relevant sections, and also, I understand, the authorities to which we have been referred, or some of them -- I gather that he case was not so fully gone into before him -- doubted whether he had any discretion in the matter: that is to say, he thought the position might well be that on proof of tender or payment of the arrears, the Court was in effect bound to exercise its discretion in favour of the tenants; but he went on to say, having considered the facts, that if there were any discretion in the matter he thought it should be exercised in favour of the Defendants so as to give them relief. On the part of the Plaintiff landlords it is urged that the Court's jurisdiction in this matter is a discretionary jurisdiction; and, while it is conceded that in the ordinary way the Court will make the Order as a matter of course when satisfied that the landlord has received, or has been tendered, all that is due to him for rent and for costs, that is not a wholly inflexible rule, for the conduct of the tenant may be looked into, and upon looking into his conduct it may appear that it would be inequitable or unfair to grant relief, in which case the Court ought, in the exercise of its discretion, to refuse relief. As grounds on which, in his submission, relief should have been refused by the learned Judge in the present case, Mr Grandy relied, in effect, on three matters. The first was the previous history of the difficulties which the landlords had experienced in extracting the rent from the Defendants; the second was the elusive habits of the Defendants, which led to the difficulties of service to which I have referred; and the third was the Defendant Lewis's conviction of the two acts of indecent assault, committed actually on a part of the demised premises that is to say in No. 92. Taking all those matters into consideration, the learned Judge, says (Mr Grandy) ought to have come to the conclusion that the Defendants here were so wholly unmeritorious that it would be inequitable to grant them relief so as to saddle the landlords for a further period with such undesirable tenants. On the other hand, Mr Rochford, for the Defendants, says that, although there may be exceptions, a case must be an exceptional one indeed for the Court to refuse relief on other grounds when all the rent and costs have been paid up. He does not go so far, I think, as to say that the Court would never refuse relief, but he says that the Court would only do so in very exceptional circumstances, such as do not exist in this case. Those, briefly, are the arguments as presented to the learned Judge and to us on the footing that this application properly came before the Court as an application under section 46 of the Judicature Act. I should next refer to that section and, briefly, to the relevant sections of the Common Law Procedure Act. Section 46 of the Judicature Act, 1925 (which substantially replaces section 1 of the Common Law Procedure Act, 1860) is in these terms:

"In the case of any action for a forfeiture brought for non-payment of rent, the High Court or a judge thereof shall have power to give relief in a summary manner, and subject to the same terms and conditions in all respects as to payment of rent, costs and otherwise as could formerly have been imposed in the Court of Chancery, and if the lessee, his executors, administrators or assigns are so relieved they shall hold the demised premises according to the terms of the lease and without the necessity of any new lease."

The provisions of the Common Law Procedure Act, 1852, to which I need refer are these. Section 210 provides (to put it very shortly) that a landlord is to have a right to re-enter when there is a half-year's rent in arrear; and then it goes on to stipulate that any claim to relief (under what was then purely the old equitable jurisdiction) which a tenant desires to make must be made within six months after execution of the judgment in respect of which relief is sought. It therefore sets a time limit on the equitable jurisdiction to which I understand a tenant could formerly appeal at any distance of time. The time limit was first imposed by the Landlord and Tenant Act, 1730, which was in this respect substantially reproduced by section 210 of the Act of 1852. Section 211 is (very shortly) to the effect that relief is not to be granted except on payment of everything that is due to the landlord in respect of rent in arrear and costs. That again imposes a condition or restriction on the claim to relief. Section 212 differs from the two preceding sections in that it confers on a tenant a substantive right and does not merely lay down conditions for the exercise of an existing right. It is in these terms:

"If the tenant or his assignee do or shall, at any time before the trial in such ejectment, pay or tender to the lessor or landlord, his executors or administrators, or his or their attorney in that cause, or pay into the court where the same cause is depending, all the rent and arrears, together with the costs, then and in such case all further proceedings on the said ejectment shall cease and be discontinued; and if such lessee, his executors, administrators, or assigns, shall, upon such proceedings as aforesaid, be relieved in equity, he and they shall have, hold, and enjoy the demised lands, according to the lease thereof made, without any new lease."

It is to be observed that in cases to which that section applies "all further proceedings on the said ejectment shall cease and be discontinued"; and it is to be observed, further, that it applies only to a case in which the amount due to the landlord is paid or tendered before the trial. Those being the statutory provisions, I should briefly consider their application in the present case. It will be remembered that, the Defendant Lewis not having been served, the Plaintiffs signed judgment against the Defendant Wright alone on 17th May, 1955. Judgment for possession of premises held by joint tenants was thus obtained against one only of those joint tenants. There has been a good deal of discussion in the course of the hearing before us as to the effect of a judgment for possession against one only of two joint tenants, and it raises a question of some difficulty; but it seems to me that the right view must be that in order to get an effective judgement for possession against joint tenants judgment must be obtained against both of them. I cannot see that a judgment against one only, both being equally entitled to possession of the whole premises as joint lessees thereof, can have any effect at all. If that view is right, then the position seems to me to be this. I think that the reference in section 212 of the Common Law Procedure Act, 1852, to "the trial" must be a reference to an effective trial binding on all necessary parties, and, I would add, an effective judgment binding on all necessary parties. When all that has happened is that judgment for possession has been signed against one only of two joint tenants, I do not think there has been a completed "trial" within the meaning of section 212, or an effective judgment for possession. Now, although the Defendants did not pay the whole of what was due from them before the judgment of 17th May, 1955, they have since in fact paid or tendered the whole. And if, so far as the claim for possession is concerned, there has as yet been no effective trial, the result appears to be that there has as yet been no "trial" within the meaning of section 212; and as the whole amount due for rent and costs has been paid or tendered, section 212 applies to the case and "all further proceedings" in the action should "cease and be discontinued". I think that, as a corollary to this, and having regard to the concluding words of section 212, the Court ought to make an Order for relief so as to restore the parties to their original position. If that view is right, it is enough to dispose of the case; but I propose also to deal with the matter as it would stand if judgment had been obtained against both joint tenants before the whole of the amount due for rent and costs had been paid or tendered. I have already outlined the arguments on either side on the hypothesis -- that is to say, on the hypothesis that this was simply a case of two joint tenants, after judgment for possession against both, seeking relief under the section 46 of the Judicature Act, 1925, as distinct from a case under section 212 of the Common Law Procedure Act, 1852. By way of illustration of the manner in which the jurisdiction to grant relief from forfeiture for non-payment of rent has been exercised by the Courts, Mr Grundy referred us to Stanhope v Haworth (1886, 3 Times Law Report 34). That was a case in which an order had been made for possession for non-payment of rent, and the premises were a colliery. Relief was applied for towards the end of the period of six months allowed by section 210 of the Common Law Procedure Act. It was held that the parties had so altered their position in the meantime that it would be inequitable to grant relief. It appears that in the meantime the landlord had let other people into possession and had made arrangements with them for the working of the colliery, and a considerable amount of money had been spent on the footing that the lease was at an end. Lord Esher said this:

"Then the court was asked to give equitable relief under the Common Law Procedure Act, 1852, but the Defendant, having judgment against him, had made no application until just before the end of the six months, and in the meantime the position of the plaintiff had become altered, as he had to keep up the colliery at considerable expense, and other parties who offered to take it had laid out money in purchasing plant to work the colliery and were now in possession. It would be unjust now to allow the tenant to dispossess them and resume possession of the colliery."

Lord Justice Lindley, concurring, said:

"The tenant … had delayed his application for relief until just before the end of the six months, and in the meantime the position of the plaintiff was altered. The plaintiff had in the meantime kept the colliery up, and had entered into an arrangement with other parties to let the colliery to them. There was no explanation of the delay by the tenant except that he had not had the money. That was no reason for allowing him now to have relief to the prejudice of the other parties, and it would be unreasonable to give him such relief."

Lord Justice Lopes concurred. He said he quite agreed with the Divisional Court:

"that it would be 'monstrous' now to give the tenant such relief as he asked. Relief ought not to be granted if the landlord and other parties interested could not be put in the same position as before, and here that was impossible, and the relief asked for would be unjust and inequitable."

It will be observed that in that case the landlord and those dealing with him had altered their position on the footing that the lease to the party seeking relief was at an end, and they had been led to do that because the tenant had waited until almost the end of the period of six months allowed to him before he claimed relief. So that case shows that where parties have altered their position in the meantime, and in particular where the rights of third parties have intervened, relief ought not to be granted where the effect of it would be to defeat the new rights of third parties or be unfair to the landlord having regard to the way in which he has altered his position. I may next refer to Newbolt v Bingham (72, Law Times, page 852). I refer to it for the statements of general principle contained in the Judgments. Lord Esher said:

"It seems to me that these Acts of Parliament give very large powers of relief to the court. That power is to be exercised by a judge at chambers. But the position of the judge at chambers as regards granting this relief is made by the Act as nearly as possible the same as that of a judge in a court of equity before the Act. If, at the time relief is asked for, the position has been altered, so that relief could not be given without causing injury to third parties, I think that the case that was cited to us ( Stanhope v. Haworth ) applies. But if, at the time of the application, the position is not altered, so that no injustice will be done, I think, if the conditions mentioned in the section are complied with, that, according to the settled practice in equity, there is no longer a discretion in the judge, but that he ought to make the Order. It does not matter whether it is called discretionary or not, if the discretion ought always to be exercised in one way. If the conditions are complied with, and no interests of third parties have intervened, there is no longer any real discretion in the matter. The Order for relief in this case will, therefore, be made, if all repairs required by the covenants are done to the satisfaction of a surveyor within one month, and the rent in arrear and all costs, including the costs of this appeal, are paid."

Lord Justice Smith agreed, without, I think, adding anything material. Lord Justice Rigby said this:

"I am of the same opinion. It was the settled practice of a court of equity to grant relief against forfeiture for non-payment of rent on payment of all rent in arrear and costs. Of course, the court was not absolutely bound by its practice where it would not do justice, and if some new interest had been created before the application, the court would refuse to interfere. That was not done to put the landlord landlord in a better position, but because the rights of third parties had intervened. I know of no case where a court of equity has refused relief because actions had had to be brought on previous occasions to recover the rent. The Common Law Procedure Act, 1852, section 210, established a new procedure in actions of ejectment for non-payment of rent; but, upon the terms of the proviso, a mortgagee not in possession has lost nothing at all of his right to apply to the equitable jurisdiction, which is now, by section 1 of the Common Law Procedure Act, 1860, vested in the judge at chambers. I am of opinion, therefore, that, upon performing the conditions mentioned in the proviso -- that is, upon repairing the premises in accordance with the covenant to the satisfaction of a surveyor to be appointed by the parties or by the judge at chambers, and on payment of rent in arrear and all costs -- the relief prayed for should be granted."

Mr Grundy relied in support of his argument on the broad equitable principles embodied in such maxims as "He who comes to equity must come with clean hands", and "He that seeks equity should do equity". Mr Rochford referred us to other cases tending to support his argument that relief ought to be granted in all but the most exceptional cases where the statutory conditions have been satisfied. He referred us to the opening passage of the Judgment of Lord Greene, Master of the Rolls, in the case Chandless-Chandless v. Nicholson (1942, 2 King's Bench, page 321). I do not think I need take up time by reading that passage, but Mr Rochford relies on it because Lord Greene did there set out the effect of the equitable jurisdiction in terms tending to support Mr Rochford's view. then there was the case Nance v. Nalor (1928, 1 King's Bench, 263), which was a case in which the tenant seeking relief had actually signed an undertaking to pay the amount due and to give up vacant possession of the premises, but even in the face of that express undertaking it was held that the tenant could still claim relief under the equitable jurisdiction, and that the undertaking afforded no sufficient reason for excluding him from relief. On the other hand, Mr Rochford, very properly referred us to Bowser v Colby (reported in 1 Hare, at page 109) as it tended to support the view of the matter taken by his opponent. The Judgment of Vice-Chancellor Wigram, and it shows quite clearly that, in his view, in the exercise of the equitable jurisdiction to grant relief it was proper to consider the conduct of the parties, and the conduct of the parties might be such as to make it wrong and inequitable to grant relief. The first passage to which we referred in particular was at page 130. He said, in laying down the general principle:

"The object of the proviso in both cases is to secure to the landlord the payment of his rent; and the principle of the court is - whether right or wrong is not the question - that, if the landlord has his rent paid him at any time, it is as beneficial to him as if it were paid upon the prescribed day."

Then, having stated that general principle, he deals at page 132 with the point for which Mr Rochford cited the case:

"I think it clear that the Defendants have a right to bring before me any breaches of covenant which may have been committed other than the non-payment of rent, and which, if committed, would have occasioned a forfeiture of the lease. Whether those breaches of covenant are to be proved in the cause, or to be tried in an issue, must, I apprehend, depend very much on the form and the course which the pleadings have taken"

. Then a little later on at the bottom of that page and the top of page 133, he said:

"I have no doubt that the court is bound to take notice of the conduct of the plaintiffs' testator in dealing with the property comprised in the lease, in considering the question whether he would have been entitled in equity to redeem the lease, although such conduct might not of necessity involve any breach of the covenants contained in it."

In the course of some further observations of later date, the learned Vice-Chancellor said this on page 133 and 134 of the report:

"Thirdly, I was of opinion with the Defendants (the Colbys) that they were entitled, at the hearing of this cause, to prove any breaches of covenant by the plaintiffs' testator, other than that for the payment of rent; and that, if breaches of such other covenants were proved, for which the plaintiffs might have been ejected, this court would not relieve against the breach of covenant for payment of rent."

As to that case, it clearly shows that in the view of the learned Vice-Chancellor other matters besides the non-payment of rent and the right of the landlord to receive in full his rent and costs before relief is granted were proper to be taken into account, and in particular breaches of other covenants under the lease, and even conduct not amounting to a breach of covenant. I think that this goes decidedly further than the more modern authorities. I do not consider that today it would be, generally speaking, legitimate to take into account other breaches of covenant. It should be remembered that many years after Bowser v. Colby was decided the Conveyancing Act, 1881, made it necessary, before bringing any action for forfeiture for breach of covenant, to serve a notice specifying the breaches and requiring them to be remedied if capable of remedy. So that what would have been available breaches of covenant at the time of the Vice-Chancellor's decision in Bowser v. Colby would not have been available breaches at the present time for want of the notice required by what is now section 146 of the Law of Property Act, 1925. Nevertheless, it is a useful authority as showing that the Court is not to exercise this equitable jurisdiction, as it were, "in blinkers". As to the conclusion of the whole matter, in my view, save in exceptional circumstances, the function of the Court in exercising this equitable jurisdiction is, save in exceptional circumstances, the function of the Court in exercising this equitable jurisdiction is to grant relief when all that is due for rent and costs has been paid, and (in general) to disregard any other causes of complaint that the landlord may have against the tenant. The question is whether, provided all is paid up, the landlord will not have been fully compensated; and the view taken by the Court is that if he gets the whole of his rent and costs, then he has got all he is entitled to so far as rent is concerned, and extraneous matters of breach of covenant, and so forth, are, generally speaking, irrelevant. But there may be very exceptional cases in which the conduct of the tenants has been such as in effect to disqualify them from coming to the court and claiming any relief or assistance whatever. The kind of case I have in mind is that of a tenant falling into arrear with the rent of premises which he was notoriously using as a disorderly house: it seems to me that in a case of that sort if the landlord brought an action for possession for non-payment of rent and the tenant applied to the Court for relief, the Court, on being apprised that the premises were being consistently used for immoral purposes, would decline to give the tenant any relief or assistance which would in any way further his use or allow the continuance of his use of the house for those immoral purposes. In a case of that sort, it seems to me it might well be going too far to say that the Court must disregard the immoral user of the premises and assist the guilty tenant by granting him relief. I cannot, however, speaking for myself, find any facts in this case approaching the exceptional state of affairs I have in mind. Here we have the previous actions for rent, but, in my view, those are not material; and it will be remembered that Lord Justice Rigby said in Newbolt v Bingham that he knew of no case where a Court of equity had refused relief because actions had had to be brought on previous occasions to recover rent. Nor, in my view, can anything really be made of the difficulty experienced in finding the two Defendants for the purpose of bringing proceedings against them to recover the rent. Other breaches of covenant are hinted at, but none of them is clearly dealt with in the evidence, and I do not think it can affect the result so far as the present case is concerned. If there are indeed other breaches of covenant, then a landlord objecting to them has his remedy in bringing an action for breach of the covenants in question after all proper notices have been given. We are left as the sole reason for refusing relief the fact of the two acts of indecent assault committed by the Defendant Lewis at No. 92, Ifield Road, against two boys. Mr Grundy urged that that matter was enough in itself to justify the Court in refusing relief. This is the aspect of the case which has occasioned me most difficulty, but, in my view, that matter is not in itself enough to justify the court in refusing relief. So far as the evidence goes, although there are some rather vague hints in an affidavit filed on behalf of the Plaintiff's side, this was apparently one isolated instance. We have no evidence at all beyond the bare fact of the conviction; we know nothing of the circumstances. I should add that it is a charge made against one only of the two joint tenants, and the acts were done at one only of these two houses, which are, as I have said earlier, comprised in two separate and distinct leases. I am, therefore, of opinion that no exceptional case is here made out such as to justify the Court in refusing relief on payment or tender of the whole of the amount due. Accordingly, if the matter depends on the equitable jurisdiction to give relief, I think that the Defendants are entitled to succeed in this appeal. If I am right in the view I have formed that, in view of the fact that the judgment obtained was obtained against Wright only, section 212 of the Act applies to the case, the same result is (as I understand it) produced independently of any question as to the proper mode of exercising the equitable jurisdiction. I should add a reference to a case which I omitted to mention in dealing with the affect of the judgment obtained against Wright alone. That was the decision of Mr Justice Maugham (as he then was) in Fairclough & Sons Limited v. Berliner (1931, 1 Chancery, page 60). The effect of that case was that one of two joint tenants could not claiom relief from forfeiture under section 146 of the Law of Property Act, 1925, and the learned Judge's ground for so holding was that one of two joint tenants was not the "lessee" within the meaning of section 146 of the Law of Property Act, 1925; there are, in such a case, joint lessees, and neither of the two joint lessees can be held himself alone to be the lessee. I think this affords some support for the view that in the present case inasmuch as the two joint tenants together jointly constituted the "lessees" or "tenants" of the premises, and neither of them could be held to be the lessee or tenant by himself alone, any judgment for possession, to be effective, should have been obtained against both. For the reasons I have endeavoured to state, I am of opinion that the result arrived at by the learned Judge in this case was right, and that the appeal fails and should be dismissed. I feel bound to add, by way of postscript, that it was not argued before us that the judgment signed in default of appearance might be supported as an effective judgment for possession against Lewis as well as Wright, on the ground that in an action for possession against two or more joint tenants service of the Writ on one constitutes good service on the others or other of them. See the note to Order IX, rule 9, in the Annual Practice, 1956, to which we were not referred. This point (which does not affect the result in the present case) is therefore to be regarded as open in any future case in which it may arise. LORD JUSTICE HODSON: I agree. In my opinion, no question of relief against forfeiture arises, because I think that this case falls within the language of section 212 of the Common Law Procedure Act, 1852. It is true that judgment has been given against one of the tenants (who are the Defendants here), but the judgment against him is not an effective judgment and not a judgment against both. That the judgment is ineffective is, I think, supported by the reasoning of Mr Justice Maugham in the case of Fairclough & Sons, Limited v Berliner to which reference has been made. The position, therefore, is this, that (adapting the language of section 212) the action is one for ejectment, that there has been no trial, and that before trial, or before effective trial, the tenants have paid or tendered to the lessor or landlord all the rent and arrears, with the costs. There is a reference in the section to payment into Court where the cause is depending. This section covers this case, and the consequence laid down by the section is that all further proceedings on the ejectment shall cease and be discontinued. In my judgment the Order which should issue from this Court ought to reflect the bidding of that section, and, accordingly, proceedings instituted by the landlord must be ordered to cease or be discontinued. If the question of relief had to be considered, the rule is, I think, clearly set out in a passage in the 2nd Edition of Halsbury's Laws Of England, to which we were referred. It is at page 264 of volume 20 of that edition:

"The proviso for re-entry on non-payment of rent is regarded in equity as merely a security for the rent, and accordingly, provided that the lessor and other persons interested can be put in the same position as before, the lessee is entitled to be relieved against the forfeiture on payment of the rent and any expenses to which the lessor has been put."

In the footnote on that page reference is made to Stanhope v Haworth (1886, 3 Times Law Reports, at page 34), a decision of this Court, where, the landlord having changed his position, it was regarded (as the Court put it) as "monstrous" that the tenant should be entitled to relief. Mr Rochford, on behalf of the tenants in this case, has drawn our attention to the fact that here and in many passages in the Judgments this right to relief is referred to as a "right", as if it were an unfettered right; but the one exception to which I have already made reference shows that the right is not unfettered; and indeed section 210 of the Common Law Procedure Act shows that the right to relief is (as it is described) a right to relief in equity. That being the case, it must, I think, necessarily follow that, as equity reserves to itself the right to refuse relief in an appropriate case, the only remaining question is whether this is an appropriate case. I am confirmed in the view I have formed by the observations of Sir James Wigram in Bowser v Colby (1 Hare's Reports, at page 130 and following pages). Although I respectfully agree with what has fallen from my brother Jenkins and with his reference to the fact that breaches of covenant have to be read in the light of the present requirements of notice since the Conveyancing Act, the Vice-Chancellor Wigram clearly had in mind that which I think the Court must always keep in mind, that there may be cases where the Court will refuse relief because the conduct of the applicant is such as to make it inequitable that relief should be given to him. Particularly must that be so where his conduct is in relation to the premises in question -- as in the instance which my brother gave, where a tenant is supposed to have been conducting the premises as a disorderly house; it could hardly be thought in such a case that the Court would grant relief. I need not address myself at length to the facts of this case: the judge has considered those. There is only one matter which is relevant. I think that the question of the tenants having been bad payers in the past, and the fact that they have been elusive when attempts have been made to serve them, are irrelevant matters for consideration, and the only material fact is the matter of the conviction. That was considered by the learned Judge who considered it as an isolated matter and not as a continuous course of conduct. Upon that I think that this Court would not interfere with the exercise of his discretion, and would not take such a severe view of the matter that it ought for that reason to deprive the tenant of that which, on the face of it, he would expect to obtain, namely, relief against forfeiture. I therefore agree that this appeal fails, save in so far as it may be necessary to make a correction of the Order to show that this Court is dealing with this matter on the footing that the proceedings should cease rather than that relief should be granted. Since delivering this Judgment, I have had the opportunity of reading the addition which Lord Justice Jenkins has made to his Judgment, with which I agreed. LORD JUSTICE SINGLETON : I agree. LORD JUSTICE SINGLETON : I will ask Lord Justice Jenkins to give the first Judgment. LORD JUSTICE JENKINS: The Appellants in this case, who were Plaintiffs in the action, are Mr Reginald Edwin Gill and Miss Edna Bradshaw. They sued as personal representatives of the late Ida Janet Dufour Cole. The action concerns certain leasehold premises, to be later described, which form part of the estate of Mrs Cole. The Respondent Defendants are a Mr Archibald Lewis and a Mr Neville Wright. They are the tenants of the leasehold premises in question. The action was brought by the Plaintiff executors against the Defendant tenants for non-payment of rent and (as will hereafter appear) judgment, including an Order for possession, was obtained against one of them. They both thereupon applied for relief from forfeiture for non-payment of rent under the provisions of section 46 of the Judicature Act, 1925, read in conjunction with sections 210, 211 and 212 of the Common Law Procedure Act, 1852. The Master held the Defendants entitled to relief. On appeal Mr Justice Pearson in chambers affirmed the Master's decision, and the Plaintiffs now appeal to this court.

[2]The premises in question consisted of two adjoining houses, Nos 90 and 92 Ifield Road, Kensington. They were held under two separate leases, the earlier in date being the one which comprised No 92. That was a lease for five years from 25th December, 1952, at a rent of £375, paid quarterly in advance. The lease of No 90 was dated 1st October, 1953, and that was for a term of ten years from 29th September, 1953, at a rent of £450, payable quarterly in advance; making £825 in all for the two houses.

[3]The parties to the lease in each case were Mrs Cole, as landlord, and the two Defendants as tenants. The leases contained various covenants - to use the premises as private dwelling-houses only, with an exception as regards the ground floor and basement, which could, I think, be used for office purposes; not to cause any nuisance or annoyance to the landlord or adjoining owners; and not to underlet or part with possession without the consent in writing of the landlord. There was the usual power of re-entry in the event of the rent being unpaid for 21 days.

[4]It is said against the Defendants that they were always bad payers; and the facts seem to some extent to bear that out. It is also said that when it was sought to improve their performance in this respect by legal proceedings they were difficult to find. Two actions in respect of rent in arrear were brought before the present action. In the first, a Writ was issued on 26th March, 1954. It was a claim for rent only: there were no claims for possession or tor breach of covenant other than the covenant to pay rent. In that action the claim was for rent due in March, 1954. The Plaintiffs found it impossible to serve the Defendant Wright, who could not be found; and in the result, on 6th July, 1954, judgment was obtained against Lewis alone for the amount of the arrears. That rent was later paid, but the complaint is made that the costs were left outstanding for a long time. The second of the two previous actions was begun by a Writ dated 30th June, 1954, and the claim was for rent due in June 1954, again without any claim for possession. On this occasion an Order for substituted service was obtained against the tenants on 19th July, 1954, and on 26th July, 1954, judgment was obtained against both Defendants for the rent in arrear and costs. There again, it is said that, if those costs have been paid now, at all events it was a long time before they were paid. Mrs Cole died on 22 January 1955; and the Plaintiffs obtained Probate on 11th March, 1955.

[5]On 1st April, 1955, the Writ in this action was issued. The relief claimed differed from that in the previous actions, in that possession was claimed on the strength of the non-payment of rent, the claims being for possession of Nos. 90 and 92, arrears of rent and mesne profits. On this occasion, in contrast to the first, it was found possible to serve Wright, but Lewis was not to be found. In the end it appeared that he had been sent to prison over a matter to which I will later refer. The Defendant Wright, although served, did not immediately appear to the action, but he and Lewis entered appearances on 13 July 1955. I think that Lewis was never in fact served, but by arrangement with Wright appearance was entered for both of them, and I suppose service was waived so far as Lewis was concerned. On 17 May, 1955 (the Defendant Wright at this stage not having appeared and the Defendant Lewis not having been served) judgment in default of appearance was signed against Wright alone.

[6]Before the signing of judgment against Wright, £400 was paid off the total of £412 10s. 0d. owing for rent. The position thus was that while the bulk of what was due for rent was paid before the date of the judgment, there was a small balance outstanding at that date consisting, apart from costs, of the sum of £12 10s. 0d. It appears that on 20th June 1955 -- that is to say, after the issue of the Writ in the action, and indeed after judgment had been signed against the Defendant Wright -- the Defendant Lewis was convicted of two indecent assaults on boys; and it appears, further, that these assaults were committed at No 92, Ifield Road. The Defendant Lewis was prosecuted, and he was sentenced to two years' imprisonment. It appears that the Defendant Lewis is a coloured man. He apparently is a singer or entertainer, and the Defendant Wright is his manager. I gather that in the ordinary way they spend much of their time, or used to spend much of their time, touring the country giving performances.

[7]The facts being as I have stated them, both Defendants, having at length entered appearances on 13th July, 1955, applied to the court for relief from forfeiture, and they made that application under section 46 of the Judicature Act, 1925, read in conjunction with sections 210, 211 and 212 of the Common Law Procedure Act, 1852. As I have already said, when the Summons came before the Master he granted relief; and Mr Justice Pearson affirmed his decision on 11th October, 1955. The learned Judge, having considered the terms of the relevant sections, and also, I understand, the authorities to which we have been referred, or some of them -- I gather that he case was not so fully gone into before him -- doubted whether he had any discretion in the matter: that is to say, he thought the position might well be that on proof of tender or payment of the arrears, the Court was in effect bound to exercise its discretion in favour of the tenants; but he went on to say, having considered the facts, that if there were any discretion in the matter he thought it should be exercised in favour of the Defendants so as to give them relief.

[8]On the part of the Plaintiff landlords it is urged that the Court's jurisdiction in this matter is a discretionary jurisdiction; and, while it is conceded that in the ordinary way the Court will make the Order as a matter of course when satisfied that the landlord has received, or has been tendered, all that is due to him for rent and for costs, that is not a wholly inflexible rule, for the conduct of the tenant may be looked into, and upon looking into his conduct it may appear that it would be inequitable or unfair to grant relief, in which case the Court ought, in the exercise of its discretion, to refuse relief.

[9]As grounds on which, in his submission, relief should have been refused by the learned Judge in the present case, Mr Grandy relied, in effect, on three matters. The first was the previous history of the difficulties which the landlords had experienced in extracting the rent from the Defendants; the second was the elusive habits of the Defendants, which led to the difficulties of service to which I have referred; and the third was the Defendant Lewis's conviction of the two acts of indecent assault, committed actually on a part of the demised premises that is to say in No. 92. Taking all those matters into consideration, the learned Judge, says (Mr Grandy) ought to have come to the conclusion that the Defendants here were so wholly unmeritorious that it would be inequitable to grant them relief so as to saddle the landlords for a further period with such undesirable tenants.

[10]On the other hand, Mr Rochford, for the Defendants, says that, although there may be exceptions, a case must be an exceptional one indeed for the Court to refuse relief on other grounds when all the rent and costs have been paid up. He does not go so far, I think, as to say that the Court would never refuse relief, but he says that the Court would only do so in very exceptional circumstances, such as do not exist in this case.

[11]Those, briefly, are the arguments as presented to the learned Judge and to us on the footing that this application properly came before the Court as an application under section 46 of the Judicature Act. I should next refer to that section and, briefly, to the relevant sections of the Common Law Procedure Act. Section 46 of the Judicature Act, 1925 (which substantially replaces section 1 of the Common Law Procedure Act, 1860) is in these terms:

"In the case of any action for a forfeiture brought for non-payment of rent, the High Court or a judge thereof shall have power to give relief in a summary manner, and subject to the same terms and conditions in all respects as to payment of rent, costs and otherwise as could formerly have been imposed in the Court of Chancery, and if the lessee, his executors, administrators or assigns are so relieved they shall hold the demised premises according to the terms of the lease and without the necessity of any new lease."

[12]The provisions of the Common Law Procedure Act, 1852, to which I need refer are these. Section 210 provides (to put it very shortly) that a landlord is to have a right to re-enter when there is a half-year's rent in arrear; and then it goes on to stipulate that any claim to relief (under what was then purely the old equitable jurisdiction) which a tenant desires to make must be made within six months after execution of the judgment in respect of which relief is sought. It therefore sets a time limit on the equitable jurisdiction to which I understand a tenant could formerly appeal at any distance of time. The time limit was first imposed by the Landlord and Tenant Act, 1730, which was in this respect substantially reproduced by section 210 of the Act of 1852.

[13]Section 211 is (very shortly) to the effect that relief is not to be granted except on payment of everything that is due to the landlord in respect of rent in arrear and costs. That again imposes a condition or restriction on the claim to relief.

[14]Section 212 differs from the two preceding sections in that it confers on a tenant a substantive right and does not merely lay down conditions for the exercise of an existing right. It is in these terms:

"If the tenant or his assignee do or shall, at any time before the trial in such ejectment, pay or tender to the lessor or landlord, his executors or administrators, or his or their attorney in that cause, or pay into the court where the same cause is depending, all the rent and arrears, together with the costs, then and in such case all further proceedings on the said ejectment shall cease and be discontinued; and if such lessee, his executors, administrators, or assigns, shall, upon such proceedings as aforesaid, be relieved in equity, he and they shall have, hold, and enjoy the demised lands, according to the lease thereof made, without any new lease."

[15]It is to be observed that in cases to which that section applies "all further proceedings on the said ejectment shall cease and be discontinued"; and it is to be observed, further, that it applies only to a case in which the amount due to the landlord is paid or tendered before the trial.

[16]Those being the statutory provisions, I should briefly consider their application in the present case. It will be remembered that, the Defendant Lewis not having been served, the Plaintiffs signed judgment against the Defendant Wright alone on 17th May, 1955. Judgment for possession of premises held by joint tenants was thus obtained against one only of those joint tenants. There has been a good deal of discussion in the course of the hearing before us as to the effect of a judgment for possession against one only of two joint tenants, and it raises a question of some difficulty; but it seems to me that the right view must be that in order to get an effective judgement for possession against joint tenants judgment must be obtained against both of them. I cannot see that a judgment against one only, both being equally entitled to possession of the whole premises as joint lessees thereof, can have any effect at all.

[17]If that view is right, then the position seems to me to be this. I think that the reference in section 212 of the Common Law Procedure Act, 1852, to "the trial" must be a reference to an effective trial binding on all necessary parties, and, I would add, an effective judgment binding on all necessary parties. When all that has happened is that judgment for possession has been signed against one only of two joint tenants, I do not think there has been a completed "trial" within the meaning of section 212, or an effective judgment for possession.

[18]Now, although the Defendants did not pay the whole of what was due from them before the judgment of 17th May, 1955, they have since in fact paid or tendered the whole. And if, so far as the claim for possession is concerned, there has as yet been no effective trial, the result appears to be that there has as yet been no "trial" within the meaning of section 212; and as the whole amount due for rent and costs has been paid or tendered, section 212 applies to the case and "all further proceedings" in the action should "cease and be discontinued". I think that, as a corollary to this, and having regard to the concluding words of section 212, the Court ought to make an Order for relief so as to restore the parties to their original position.

[19]If that view is right, it is enough to dispose of the case; but I propose also to deal with the matter as it would stand if judgment had been obtained against both joint tenants before the whole of the amount due for rent and costs had been paid or tendered. I have already outlined the arguments on either side on the hypothesis -- that is to say, on the hypothesis that this was simply a case of two joint tenants, after judgment for possession against both, seeking relief under the section 46 of the Judicature Act, 1925, as distinct from a case under section 212 of the Common Law Procedure Act, 1852. By way of illustration of the manner in which the jurisdiction to grant relief from forfeiture for non-payment of rent has been exercised by the Courts, Mr Grundy referred us to Stanhope v Haworth (1886, 3 Times Law Report 34). That was a case in which an order had been made for possession for non-payment of rent, and the premises were a colliery. Relief was applied for towards the end of the period of six months allowed by section 210 of the Common Law Procedure Act. It was held that the parties had so altered their position in the meantime that it would be inequitable to grant relief. It appears that in the meantime the landlord had let other people into possession and had made arrangements with them for the working of the colliery, and a considerable amount of money had been spent on the footing that the lease was at an end. Lord Esher said this:

"Then the court was asked to give equitable relief under the Common Law Procedure Act, 1852, but the Defendant, having judgment against him, had made no application until just before the end of the six months, and in the meantime the position of the plaintiff had become altered, as he had to keep up the colliery at considerable expense, and other parties who offered to take it had laid out money in purchasing plant to work the colliery and were now in possession. It would be unjust now to allow the tenant to dispossess them and resume possession of the colliery."

Lord Justice Lindley, concurring, said:

"The tenant … had delayed his application for relief until just before the end of the six months, and in the meantime the position of the plaintiff was altered. The plaintiff had in the meantime kept the colliery up, and had entered into an arrangement with other parties to let the colliery to them. There was no explanation of the delay by the tenant except that he had not had the money. That was no reason for allowing him now to have relief to the prejudice of the other parties, and it would be unreasonable to give him such relief."

[21]Lord Justice Lopes concurred. He said he quite agreed with the Divisional Court:

"that it would be 'monstrous' now to give the tenant such relief as he asked. Relief ought not to be granted if the landlord and other parties interested could not be put in the same position as before, and here that was impossible, and the relief asked for would be unjust and inequitable."

[22]It will be observed that in that case the landlord and those dealing with him had altered their position on the footing that the lease to the party seeking relief was at an end, and they had been led to do that because the tenant had waited until almost the end of the period of six months allowed to him before he claimed relief. So that case shows that where parties have altered their position in the meantime, and in particular where the rights of third parties have intervened, relief ought not to be granted where the effect of it would be to defeat the new rights of third parties or be unfair to the landlord having regard to the way in which he has altered his position.

[23]I may next refer to Newbolt v Bingham (72, Law Times, page 852). I refer to it for the statements of general principle contained in the Judgments. Lord Esher said:

"It seems to me that these Acts of Parliament give very large powers of relief to the court. That power is to be exercised by a judge at chambers. But the position of the judge at chambers as regards granting this relief is made by the Act as nearly as possible the same as that of a judge in a court of equity before the Act. If, at the time relief is asked for, the position has been altered, so that relief could not be given without causing injury to third parties, I think that the case that was cited to us ( Stanhope v. Haworth ) applies. But if, at the time of the application, the position is not altered, so that no injustice will be done, I think, if the conditions mentioned in the section are complied with, that, according to the settled practice in equity, there is no longer a discretion in the judge, but that he ought to make the Order. It does not matter whether it is called discretionary or not, if the discretion ought always to be exercised in one way. If the conditions are complied with, and no interests of third parties have intervened, there is no longer any real discretion in the matter. The Order for relief in this case will, therefore, be made, if all repairs required by the covenants are done to the satisfaction of a surveyor within one month, and the rent in arrear and all costs, including the costs of this appeal, are paid."

[24]Lord Justice Smith agreed, without, I think, adding anything material. Lord Justice Rigby said this:

"I am of the same opinion. It was the settled practice of a court of equity to grant relief against forfeiture for non-payment of rent on payment of all rent in arrear and costs. Of course, the court was not absolutely bound by its practice where it would not do justice, and if some new interest had been created before the application, the court would refuse to interfere. That was not done to put the landlord landlord in a better position, but because the rights of third parties had intervened. I know of no case where a court of equity has refused relief because actions had had to be brought on previous occasions to recover the rent. The Common Law Procedure Act, 1852, section 210, established a new procedure in actions of ejectment for non-payment of rent; but, upon the terms of the proviso, a mortgagee not in possession has lost nothing at all of his right to apply to the equitable jurisdiction, which is now, by section 1 of the Common Law Procedure Act, 1860, vested in the judge at chambers. I am of opinion, therefore, that, upon performing the conditions mentioned in the proviso -- that is, upon repairing the premises in accordance with the covenant to the satisfaction of a surveyor to be appointed by the parties or by the judge at chambers, and on payment of rent in arrear and all costs -- the relief prayed for should be granted."

[25]Mr Grundy relied in support of his argument on the broad equitable principles embodied in such maxims as "He who comes to equity must come with clean hands", and "He that seeks equity should do equity".

[26]Mr Rochford referred us to other cases tending to support his argument that relief ought to be granted in all but the most exceptional cases where the statutory conditions have been satisfied. He referred us to the opening passage of the Judgment of Lord Greene, Master of the Rolls, in the case Chandless-Chandless v. Nicholson (1942, 2 King's Bench, page 321). I do not think I need take up time by reading that passage, but Mr Rochford relies on it because Lord Greene did there set out the effect of the equitable jurisdiction in terms tending to support Mr Rochford's view. then there was the case Nance v. Nalor (1928, 1 King's Bench, 263), which was a case in which the tenant seeking relief had actually signed an undertaking to pay the amount due and to give up vacant possession of the premises, but even in the face of that express undertaking it was held that the tenant could still claim relief under the equitable jurisdiction, and that the undertaking afforded no sufficient reason for excluding him from relief.

[27]On the other hand, Mr Rochford, very properly referred us to Bowser v Colby (reported in 1 Hare, at page 109) as it tended to support the view of the matter taken by his opponent. The Judgment of Vice-Chancellor Wigram, and it shows quite clearly that, in his view, in the exercise of the equitable jurisdiction to grant relief it was proper to consider the conduct of the parties, and the conduct of the parties might be such as to make it wrong and inequitable to grant relief. The first passage to which we referred in particular was at page 130. He said, in laying down the general principle:

"The object of the proviso in both cases is to secure to the landlord the payment of his rent; and the principle of the court is - whether right or wrong is not the question - that, if the landlord has his rent paid him at any time, it is as beneficial to him as if it were paid upon the prescribed day."

[28]Then, having stated that general principle, he deals at page 132 with the point for which Mr Rochford cited the case: "I think it clear that the Defendants have a right to bring before me any breaches of covenant which may have been committed other than the non-payment of rent, and which, if committed, would have occasioned a forfeiture of the lease. Whether those breaches of covenant are to be proved in the cause, or to be tried in an issue, must, I apprehend, depend very much on the form and the course which the pleadings have taken".

[29]Then a little later on at the bottom of that page and the top of page 133, he said:

"I have no doubt that the court is bound to take notice of the conduct of the plaintiffs' testator in dealing with the property comprised in the lease, in considering the question whether he would have been entitled in equity to redeem the lease, although such conduct might not of necessity involve any breach of the covenants contained in it."

[30]In the course of some further observations of later date, the learned Vice-Chancellor said this on page 133 and 134 of the report:

"Thirdly, I was of opinion with the Defendants (the Colbys) that they were entitled, at the hearing of this cause, to prove any breaches of covenant by the plaintiffs' testator, other than that for the payment of rent; and that, if breaches of such other covenants were proved, for which the plaintiffs might have been ejected, this court would not relieve against the breach of covenant for payment of rent."

[31]As to that case, it clearly shows that in the view of the learned Vice-Chancellor other matters besides the non-payment of rent and the right of the landlord to receive in full his rent and costs before relief is granted were proper to be taken into account, and in particular breaches of other covenants under the lease, and even conduct not amounting to a breach of covenant. I think that this goes decidedly further than the more modern authorities. I do not consider that today it would be, generally speaking, legitimate to take into account other breaches of covenant. It should be remembered that many years after Bowser v. Colby was decided the Conveyancing Act, 1881, made it necessary, before bringing any action for forfeiture for breach of covenant, to serve a notice specifying the breaches and requiring them to be remedied if capable of remedy. So that what would have been available breaches of covenant at the time of the Vice-Chancellor's decision in Bowser v. Colby would not have been available breaches at the present time for want of the notice required by what is now section 146 of the Law of Property Act, 1925. Nevertheless, it is a useful authority as showing that the Court is not to exercise this equitable jurisdiction, as it were, "in blinkers".

[32]As to the conclusion of the whole matter, in my view, save in exceptional circumstances, the function of the Court in exercising this equitable jurisdiction is, save in exceptional circumstances, the function of the Court in exercising this equitable jurisdiction is to grant relief when all that is due for rent and costs has been paid, and (in general) to disregard any other causes of complaint that the landlord may have against the tenant. The question is whether, provided all is paid up, the landlord will not have been fully compensated; and the view taken by the Court is that if he gets the whole of his rent and costs, then he has got all he is entitled to so far as rent is concerned, and extraneous matters of breach of covenant, and so forth, are, generally speaking, irrelevant.

[33]But there may be very exceptional cases in which the conduct of the tenants has been such as in effect to disqualify them from coming to the court and claiming any relief or assistance whatever. The kind of case I have in mind is that of a tenant falling into arrear with the rent of premises which he was notoriously using as a disorderly house: it seems to me that in a case of that sort if the landlord brought an action for possession for non-payment of rent and the tenant applied to the Court for relief, the Court, on being apprised that the premises were being consistently used for immoral purposes, would decline to give the tenant any relief or assistance which would in any way further his use or allow the continuance of his use of the house for those immoral purposes. In a case of that sort, it seems to me it might well be going too far to say that the Court must disregard the immoral user of the premises and assist the guilty tenant by granting him relief.

[34]I cannot, however, speaking for myself, find any facts in this case approaching the exceptional state of affairs I have in mind. Here we have the previous actions for rent, but, in my view, those are not material; and it will be remembered that Lord Justice Rigby said in Newbolt v Bingham that he knew of no case where a Court of equity had refused relief because actions had had to be brought on previous occasions to recover rent. Nor, in my view, can anything really be made of the difficulty experienced in finding the two Defendants for the purpose of bringing proceedings against them to recover the rent. Other breaches of covenant are hinted at, but none of them is clearly dealt with in the evidence, and I do not think it can affect the result so far as the present case is concerned. If there are indeed other breaches of covenant, then a landlord objecting to them has his remedy in bringing an action for breach of the covenants in question after all proper notices have been given.

[35]We are left as the sole reason for refusing relief the fact of the two acts of indecent assault committed by the Defendant Lewis at No. 92, Ifield Road, against two boys. Mr Grundy urged that that matter was enough in itself to justify the Court in refusing relief. This is the aspect of the case which has occasioned me most difficulty, but, in my view, that matter is not in itself enough to justify the court in refusing relief. So far as the evidence goes, although there are some rather vague hints in an affidavit filed on behalf of the Plaintiff's side, this was apparently one isolated instance. We have no evidence at all beyond the bare fact of the conviction; we know nothing of the circumstances. I should add that it is a charge made against one only of the two joint tenants, and the acts were done at one only of these two houses, which are, as I have said earlier, comprised in two separate and distinct leases.

[36]I am, therefore, of opinion that no exceptional case is here made out such as to justify the Court in refusing relief on payment or tender of the whole of the amount due. Accordingly, if the matter depends on the equitable jurisdiction to give relief, I think that the Defendants are entitled to succeed in this appeal. If I am right in the view I have formed that, in view of the fact that the judgment obtained was obtained against Wright only, section 212 of the Act applies to the case, the same result is (as I understand it) produced independently of any question as to the proper mode of exercising the equitable jurisdiction.

[37]I should add a reference to a case which I omitted to mention in dealing with the affect of the judgment obtained against Wright alone. That was the decision of Mr Justice Maugham (as he then was) in Fairclough & Sons Limited v. Berliner (1931, 1 Chancery, page 60). The effect of that case was that one of two joint tenants could not claiom relief from forfeiture under section 146 of the Law of Property Act, 1925, and the learned Judge's ground for so holding was that one of two joint tenants was not the "lessee" within the meaning of section 146 of the Law of Property Act, 1925; there are, in such a case, joint lessees, and neither of the two joint lessees can be held himself alone to be the lessee. I think this affords some support for the view that in the present case inasmuch as the two joint tenants together jointly constituted the "lessees" or "tenants" of the premises, and neither of them could be held to be the lessee or tenant by himself alone, any judgment for possession, to be effective, should have been obtained against both.

[38]For the reasons I have endeavoured to state, I am of opinion that the result arrived at by the learned Judge in this case was right, and that the appeal fails and should be dismissed.

[39]I feel bound to add, by way of postscript, that it was not argued before us that the judgment signed in default of appearance might be supported as an effective judgment for possession against Lewis as well as Wright, on the ground that in an action for possession against two or more joint tenants service of the Writ on one constitutes good service on the others or other of them. See the note to Order IX, rule 9, in the Annual Practice, 1956, to which we were not referred. This point (which does not affect the result in the present case) is therefore to be regarded as open in any future case in which it may arise. LORD JUSTICE HODSON: I agree. In my opinion, no question of relief against forfeiture arises, because I think that this case falls within the language of section 212 of the Common Law Procedure Act, 1852. It is true that judgment has been given against one of the tenants (who are the Defendants here), but the judgment against him is not an effective judgment and not a judgment against both. That the judgment is ineffective is, I think, supported by the reasoning of Mr Justice Maugham in the case of Fairclough & Sons, Limited v Berliner to which reference has been made.

[40]The position, therefore, is this, that (adapting the language of section 212) the action is one for ejectment, that there has been no trial, and that before trial, or before effective trial, the tenants have paid or tendered to the lessor or landlord all the rent and arrears, with the costs. There is a reference in the section to payment into Court where the cause is depending. This section covers this case, and the consequence laid down by the section is that all further proceedings on the ejectment shall cease and be discontinued. In my judgment the Order which should issue from this Court ought to reflect the bidding of that section, and, accordingly, proceedings instituted by the landlord must be ordered to cease or be discontinued.

[41]If the question of relief had to be considered, the rule is, I think, clearly set out in a passage in the 2nd Edition of Halsbury's Laws Of England, to which we were referred. It is at page 264 of volume 20 of that edition:

"The proviso for re-entry on non-payment of rent is regarded in equity as merely a security for the rent, and accordingly, provided that the lessor and other persons interested can be put in the same position as before, the lessee is entitled to be relieved against the forfeiture on payment of the rent and any expenses to which the lessor has been put."

[42]In the footnote on that page reference is made to Stanhope v Haworth (1886, 3 Times Law Reports, at page 34), a decision of this Court, where, the landlord having changed his position, it was regarded (as the Court put it) as "monstrous" that the tenant should be entitled to relief.

[43]Mr Rochford, on behalf of the tenants in this case, has drawn our attention to the fact that here and in many passages in the Judgments this right to relief is referred to as a "right", as if it were an unfettered right; but the one exception to which I have already made reference shows that the right is not unfettered; and indeed section 210 of the Common Law Procedure Act shows that the right to relief is (as it is described) a right to relief in equity.

[44]That being the case, it must, I think, necessarily follow that, as equity reserves to itself the right to refuse relief in an appropriate case, the only remaining question is whether this is an appropriate case. I am confirmed in the view I have formed by the observations of Sir James Wigram in Bowser v Colby (1 Hare's Reports, at page 130 and following pages). Although I respectfully agree with what has fallen from my brother Jenkins and with his reference to the fact that breaches of covenant have to be read in the light of the present requirements of notice since the Conveyancing Act, the Vice-Chancellor Wigram clearly had in mind that which I think the Court must always keep in mind, that there may be cases where the Court will refuse relief because the conduct of the applicant is such as to make it inequitable that relief should be given to him. Particularly must that be so where his conduct is in relation to the premises in question -- as in the instance which my brother gave, where a tenant is supposed to have been conducting the premises as a disorderly house; it could hardly be thought in such a case that the Court would grant relief.

[45]I need not address myself at length to the facts of this case: the judge has considered those. There is only one matter which is relevant. I think that the question of the tenants having been bad payers in the past, and the fact that they have been elusive when attempts have been made to serve them, are irrelevant matters for consideration, and the only material fact is the matter of the conviction. That was considered by the learned Judge who considered it as an isolated matter and not as a continuous course of conduct. Upon that I think that this Court would not interfere with the exercise of his discretion, and would not take such a severe view of the matter that it ought for that reason to deprive the tenant of that which, on the face of it, he would expect to obtain, namely, relief against forfeiture.

[46]I therefore agree that this appeal fails, save in so far as it may be necessary to make a correction of the Order to show that this Court is dealing with this matter on the footing that the proceedings should cease rather than that relief should be granted.

[47]Since delivering this Judgment, I have had the opportunity of reading the addition which Lord Justice Jenkins has made to his Judgment, with which I agreed.

LORD JUSTICE SINGLETON : I agree.

Cited in 13 later judgments

and 4 more of the most senior