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becomes yearly more urgent that an equitable and common-sense view should be taken of the contract of hiring houses for human habitation, that the principles applicable to the hire of goods and chattels personal, should be applied to the hire of a house, and that the implied warranty imported into the letting of a furnished house be extended to the letting of all houses, whether furnished or unfurnished, when let for dwelling purposes.
If it is too late to revive the law as laid down in Edwards v. Etherington, and Collins v. Barrow, it is time the principle applied by the legislature to the dwellings of the working classes be extended to the whole of the community of tenants, irrespectively of position or mode of obtaining a living.
The second point needs to be touched upon but lightly, for much the same line of argument applies.
The rule of law is that the occupier and not the owner of premises is liable, primarily, for damages resulting from a nuisance, or for injuries to third persons or adjoining property, through the same being in a ruinous or dangerous condition ; and that is so, although as between himself and the landlord, the tenant may not be liable to repair. *
And it would appear that there are only two ways in which a landlord can be held liable for injury to a stranger by the defective state of the premises let to a tenant, namely, where he has contracted with the tenant to repair, or when he has let the premises in a ruinous and improper condition.t
But a landlord, by letting premises in a ruinous condition, does not become liable for any damage to the tenant or his guests or customers. I
* Coupland v. Hardingham. [1813.) 3. Camp, 398; Russell v. Shenton. [1842). 3. Q.B., 449 ; Reg v. Watson. 2. Ld, Raym, 856.
+ Nelson ». Liverpool Brewery Co. (1877.] 2. C.P.D., 311 ; Payne r. Rogers. (1794). 2. H.Bl., 349 ; Gwinneli v. Eamer. [1875.) 32. L.T.N.S., 835,
# Robbins v. Jones. (1863.] 15, C.B.N.S., 240 ; Norris v. Catmur, (1885) C. & E, 576.
It may be said that making the occupier of premises primarily liable to a stranger for damages sustained by reason of some defective or dangerous part of the premises is the swiftest way of dealing with the matter, because if the landlord is liable the defendant occupier will speedily join him in the action, or otherwise bring him to book. But such a suggestion merely avoids the real issue which is that only the negligent or tortiously responsible party ought to be sued in the first instance. Of course, according to the arbitrary principles applied to the duty of repairing, the tenant would be deemed to be the negligent party. The writer, however, submits that that is a further argument in favour of casting upon the landlord the implied responsibility of putting the premises into a fit and thorough condition. For it is unjust that a person who is not negligent in doing repairs, &c., should be suddenly called upon by a stranger for compensation in respect of injuries which were caused, for example, through some structural defect or fault.
Why should not the general principle applicable in torts be applied to the landlord, namely, that the owner of a dangerous thing or animal must protect the public from harm by it at his peril. What applies to a reservoir of water, or to the keeping of a monkey, or to the carrying of fire-arms in the open street, &c., or the duty imposed upon the owner of an empty house should apply equally to the owner of the house when it happens to be let.
It would be absurd to reply that the owner should not be liable merely on the ground that he has no implied right to enter the premises in order to effect repairs; for if there were an implied duty to repair, &c., it would involve a right, of necessity, to enter at reasonable times for that purpose.
On the other hand, it is as at present manifestly unfair that a tenant should be held responsible in damages for accident unavoidable by him.
Such is the position of the tenant in relation to strangers. With regard to a tenant's inability to recover from the landlord damages for personal injuries, or injuries to his goods through a falling ceiling, inflow of water, dampness due to imperfect structure, &c., &c., it has already been submitted that the present law is bad and calls for amendment. And since a tenant's family, guests, and customers are deemed, in point of law, to be all identified with the tenant, and the tenant himself for most purposes the representative of the landlord, there is a curious, logical inconsistency in the non-liability of the landlord for injuries to any of these. For might not the comedy of errors be completed in applying to their case the maxim Volenti non fit injuria ?
For the reasons above stated it is submitted that the landlord should be held impliedly to warrant fitness for habitation during the whole of the hiring, and, in consequence, to be liable for damage resulting from every cause directly attributable to the condition of the premises, not due to any omission or act on the part of the tenant.
WALTER R. WARREN.
VII.-REGINA O GRAY.
O one would be disposed to attempt any defence,
from the standpoint of decency and good taste, of the language used with reference to Mr. Justice Darling, which gave rise to the proceedings, in the early part of the year, for the committal of the editor of a Birmingham newspaper. But when the power of the Court is invoked to punish it as a contempt of Court, a serious constitutional question arises, as to the extent and limit of this summary jurisdiction. No case can be found where it has been previously exercised to punish a purely personal
attack on a judge. And although the opinion of Chief Justice Wilmot in Almon's case was relied on as an authority, yet not only does that case differ from the present one, in that the attack was there directed against the propriety of an order made, and that the matter arose at a period, prior to Fox's Libel Act, when the judges had usurped to themselves the function of deciding whether a publication was a libel or not, but every line of that learned and admirable opinion shows that the jurisdiction does not extend to such a case as the present one.
In Almon's case Lord Mansfield had made a certain order in chanibers. One of the objections raised to the jurisdiction to issue a committal was that the order having been made in chambers, it could not be enforced without first being made a rule of court, and that, therefore, the libel complained of was not in reference to a proceeding of the court, and could not be punished as a contempt of court. Chief Justice Wilmot, in dealing with this argument, says :-“ The question resolves itself at last into this single point, whether a judge, making an order at his house or chambers, is not acting in his judicial capacity as a judge of this court, and both his person and character under the same protection as if he was sitting by himself in court? It is conceded that an act of violence upon his person when he was making such an order, would be a contempt punishable by attachment ; upon what principle ? For striking a judge in walking along the streets would not be a tempt of court. The reason, therefore, must be that he is in the exercise of his office and discharging the function of a judge of this court; and if his person is under this protection, why should not his character be under the same protection. It is not for the sake of the individual, but for the sake of the public that his person is under such protection ; and in respect of the public, the imputing corruption and the perversion of justice to him,
in an order made by him at his chambers, is attended with much more mischievous consequences than a blow; and therefore the reason of proceeding in this summary manner applies with equal, if not superior, force to one case as well as the other ; there is no greater obstruction to the execution of justice from the striking a judge than from the abusing him, because his order lies open to be enforced or discharged, whether the judge is struck or abused for making it. The greatest objection upon this part of the case has been, that this Court will not enforce obedience to a judge's order, by an attachment, before it is made a rule of Court; and that the refusal to perform it must be subsequent to its being made a rule of Court, and from thence it has been inferred, that it can be no contempt of the Court to libel a judge for making an order, because it would be no contempt of the Court to disobey it. But, upon consideration, I think the inference is not a just one. The right of the Court to control these orders is to preserve a uniformity of practice, and to prevent any clashing which might arise from four distinct and separate exertions of the same jurisdiction. The refusing to issue an attachment for the breach of such an order, before it is made an order of the Court, was founded upon the same principle. We will not enforce obedience to it till we have adopted it; but that provision only respects the effect of the order when made, and does not the least appiy to the capacity or character in which the judge makes it. He is still opening and exercising the jurisdiction of the Court, and is doing the business which must otherwise be done in Court, exactly in the same manner as we do at the Side Bar; and surely a libel upon the judges for what they do at the Side Bar, within a few yards of the Court, would be as much the object of an attachment as for anything done in Court. Custom legitimates the practice at Chambers, as much