C. A. 1904 Nov. 29, 30; Dec. 2. [IN THE COURT OF APPEAL.] GEEN v. HERRING. Practice-Costs-Action for Recovery of Land - Landlord and Tenant- The owner of the reversions upon four leases, each comprising a number of houses, brought four actions for the recovery of the houses respectively comprised in each lease, on the ground of forfeiture for breach of covenants to repair contained in the leases. He made defendants in the actions a very large number of persons, who respectively occupied the houses as weekly tenants to one H., to whom the leases had been assigned. H. obtained leave to appear and defend the actions; and, subsequently, having put the houses into a state of repair, he made application in each action for relief against the forfeiture. An order for such relief was made by consent in each action on condition of his paying the plaintiff's costs of the action as between solicitor and client. On taxation of the plaintiff's costs, the master allowed in each action (inter alia) items in respect of copies of the writ for service, and service thereof on each of the weekly tenants. On application for a review of taxation, the Court being of opinion that, under the circumstances, the real object of the actions, namely, to compel the execution of the repairs, might have been attained by one action against H. as sole defendant : Held, that, the above-mentioned items having been unnecessarily incurred, they must be disallowed under Order LXV., r. 27, sub-r. 20, but that, H. having consented to an order for relief in each action being made on condition of his paying the plaintiff's costs of the action, the Court could not order that the plaintiff should only have the costs of one action. APPEAL from an order of Bruce J. at chambers refusing to order a review of taxation of the master as after mentioned. Four actions for the recovery of possession of a large number of houses had been brought under the following circumstances. Four leases for long terms had been granted by the owner of the freehold, each comprising a portion of the beforementioned houses. The owners of these leases had subsequently granted four sub-leases, respectively comprising the houses comprised in the respective leases, of which sub-leases one Herring had become the assignee. The head leases of the houses had become vested in the plaintiff. Both the head C. A. 1904 GEEN V. leases and sub-leases of the houses respectively contained covenants to repair and conditions of re-entry for breach of covenant. Herring had let the various houses comprised in the sub-leases to weekly tenants, who were in occupation HERRING. thereof. It appeared that the plaintiff had received rents due under the sub-leases from Herring. The houses being out of repair, the owner of the reversions on the head leases was threatening to enforce the forfeiture against the plaintiff. Thereupon the plaintiff sought to enforce execution of the necessary repairs by Herring, and a correspondence on the subject ensued between the agents of the plaintiff and the solicitor acting for Herring, of which the last two letters were as follows. On April 21, 1903, the plaintiff's agents wrote to Herring's solicitor in these terms: "The time allowed by the notice attached to the schedule of dilapidations served upon this property has now expired; and, unless we can have some satisfactory guarantee from you that the repairs will be completed at an early date, we must instruct the lawyers to start an action of ejectment. We will delay communicating with the lawyers until Friday next, which will give you sufficient time to let us have a reply to this." To this letter the solicitor acting for Herring replied as follows: "I have received your letter of yesterday. You have already been informed that the builder is carrying out the repairs, and this is being done as fast as it reasonably can. If this does not satisfy you, you may take any course you choose, and I am prepared to accept service." The plaintiff subsequently brought the four actions above mentioned, naming as defendants in the respective writs of summons the various weekly tenants of the houses, the whole number of defendants named amounting to over a hundred. Copies of the writs in the respective actions were served upon the various defendants in each action respectively. Herring obtained leave to appear and defend the actions as the landlord of the defendants. The weekly tenants did not appear, and no further proceedings in the actions were taken against them. Subsequently, having put the houses into a state of repair, Herring made an application at chambers for relief against C. A. 1904 GEEN V. HERRING. the forfeiture in each action. An order was made by the master by consent in each action in the following terms: "On reading the affidavit of the defendant George Herring, [and other affidavits], by consent, and the plaintiff accepting the statement of the said defendant that the freeholder is satisfied as to the repairs carried out by the said defendant, it is ordered that the said defendant George Herring be relieved from the forfeiture, if any, of the lease dated . . . . and all further proceedings in this action be stayed (except for the purpose of enforcing this order), the said defendant George Herring paying to the plaintiff his costs as between solicitor and client of this action, and the proceedings for relief and surveyor's fees in respect of the service of notice and preparation of the specification incurred before action brought, to be taxed." ... The plaintiff's bill of costs carried in for taxation contained items in each action in respect of costs of copies of the writ for service on each of the various defendants named in the writ and of service of the same. On taxation of the costs it was contended for the defendant Herring that the above-mentioned items ought not to be allowed, and that the costs of one action only ought to be allowed, on the ground that under the circumstances it was unnecessary to make the weekly tenants defendants and that there should have been one action only in which Herring should have been made the sole defendant. The master taxed the costs in each of the actions, and (inter alia) allowed the items for copies of the writs for service on each of the weekly tenants, but only allowed as for service on them of notices, and not of writs. On appeal Bruce J. refused to direct a review of taxation. Montague Lush, K.C., and C. Herbert-Smith, for the defendant Herring. It was wholly unnecessary in this case to bring four actions against all the weekly tenants of the houses, and one action against Herring as sole defendant should have been brought. The scope of the action was really to enforce the repair of the premises, and it is never the C. A. 1904 GEEN v. practice that weekly tenants should execute repairs. It may be the usual practice, and no doubt in many cases be necessary, to make the persons actually in occupation as tenants the defendants in an action for recovery of land: as for example HERRING. where there is a question of their setting up an independent title in themselves, or where the plaintiff cannot ascertain the state of the title to a lease; but in the present case the plaintiff was well aware, or at any rate might easily have ascertained on inquiry, that the sub-leases were vested in Herring, and the real object of the actions would have been attained by one action against him alone. Though the orders for relief provide that the plaintiff is to have the costs of the action as between solicitor and client, that does not deprive the master of the jurisdiction to disallow costs improperly, vexatiously, or unnecessarily incurred, which is given by Order LXV., r. 27, sub-r. 20. There is no provision by which it is rendered necessary in all cases to make the persons actually in possession the defendants in an action for recovery of land. There is no special provision on the subject with regard to such actions in the rules, and the practice must therefore be governed by the ordinary rules and practice as to actions in general, which merely require service of the writ on such person or persons as it is sought to make defendant or defendants in an action. [They cited Minet v. Johnson. (1)] Danckwerts, K.C., and Holman Gregory, for the plaintiff. Order LXXII., r. 2, provides that, where no other provision is made by the Judicature Acts or Rules, the previously existing procedure and practice are to remain in force. Sect. 168 of the Common Law Procedure Act, 1852, provided that the writ in an action of ejectment should be directed to the persons in possession by name, and to all persons entitled to defend the possession of the property claimed. [STIRLING L.J. A landlord may be in possession by his tenants. Could not the action have been brought against Herring alone?] It may be admitted that the action could have been so brought, but the question is whether the plaintiff was not (1) (1890) 63 L. T. 507. C. A. 1904 GEEN V. HERRING. entitled under the ordinary procedure to make the tenants in actual possession the defendants. The books of practice appear to lay it down as being the ordinary practice that the action should be brought against those in actual possession of the land see Cole on Ejectment, 83; Woodfall on Landlord and Tenant, 16th ed. 846; see also per Lindley L.J. in Minet v. Johnson. (1) There is a certain amount of risk involved in not making the persons in actual possession defendants; for when the sheriff, upon judgment being obtained, executes the writ of possession, he will turn out these persons, who may bring actions against the plaintiff for wrongful dispossession, not being bound by the judgment. [MATHEW L.J. That may possibly be so where there is any question of an independent title in them, but here it appears to have been known to the plaintiff, or he might without difficulty have ascertained that the sub-leases were vested in Herring, and the occupiers were his tenants.] It is submitted that it cannot be deemed unreasonable that the plaintiff should have followed what is laid down in all the books to be the usual practice in actions for recovery of land. Furthermore, the defendant Herring cannot now raise these objections to the taxation. The time to have raised any objection to the form of the actions, and the fact that four actions were brought, was upon the summonses for relief. The defendant Herring consented to an order in each action that the plaintiff should have his costs of the action as between solicitor and client. The costs of the action referred to in the order are the costs of the action as actually constituted, namely, the action against the weekly tenants as defendants. C. Herbert-Smith, in reply, referred to Foa's Landlord and Tenant, 3rd ed. 698. Cur, adv. vult. Dec. 2. STIRLING L.J. This is an appeal against an order of Bruce J. refusing to interfere with the master's taxation of costs in four actions brought to recover possession of a large number of houses in the following circumstances. It (1) 63 L. T. 507. |