1903 FIELDING v. TURNER. C.J. for the purpose of unlawful gaming within the section, but we are clearly of opinion that if the operation was unlawful the appellant was rightly convicted of keeping the room for the Lord Alverstone purpose; in fact, the only substantial question is whether or not, assuming the operation to constitute gaming, it was unlawful gaming within s. 4 of the Gaming House Act (16 & 17 Vict. c. 119). That Act contains no definition of unlawful gaming, but it refers in s. 2 to the Act 8 & 9 Vict. c. 109, and that Act enables us to ascertain what was the class of game or transaction which was considered to be unlawful. The preamble of that Act recited the Act of Henry VIII., which had undoubtedly included within its purview many games which were in every sense of the word games of skill, and s. 1 repealed the Act of Henry VIII. so far as it relates to these games. Sect. 2, which dealt with unlawful gaming, not only in houses occupied for that purpose and open to the public, but with houses which were alleged to be open for the use of subscribers only, enacted that in default of other evidence it should be sufficient in support of the allegation in any indictment or information that any house is a common gaming-house to prove "that such house or place is kept or used for playing therein at any unlawful game, and that a bank is kept there by one or more of the players exclusively of the others, or that the chances of any game played therein are not alike favourable to all the players, including among the players the banker or other person by whom the game is managed or against whom the other players stake, play, or bet, and every such house or place shall be deemed a common gaming-house." This section is somewhat difficult to construe, but in our opinion it does indicate that a game in which the chances are not alike favourable to all the players, including among the players the person by whom the games are managed, or against whom the players stake, is an unlawful game. We are of opinion that the operation of this machine falls within that definition, and that that being so the operation carried on was one of unlawful gaming, and that the appellant knowingly occupied the shop and permitted it to be used for that purpose. We were referred by Mr. Llewelyn Davies to the case of Jenks v. Turpin (1), and, without saying that that case is a direct authority in favour of the view which we have expressed, the opinion of Hawkins J., at p. 524, and the opinion of A. L. Smith J., at pp. 532 and 533, support the view which we have expressed. With regard to the contention that because the money staked was only one penny the transaction is not within the statute, we are clearly of opinion that the smallness of the amount is not a conclusive test, but that the mischief pointed out by A. L. Smith J. of unlawful gaming may be present although the stakes are small. We are therefore of opinion that the conviction should be affirmed, and the appeal dismissed with costs. Appeal dismissed. Solicitors for appellant: Keith & Humphries. Solicitors for respondent: Chester, Broome & Griffithes, for H. Booth & Sons, Oldham. 1903 FIELDING V. TURNER. Lord Alverstone C.J. A. P. P. K. STOCKDALE v. ASCHERBERG. Landlord and Tenant-Tenancy for Three Years-Agreement by Tenant to pay Outgoings-Order by Sanitary Authority to reconstruct Drain Liability of Tenant. The plaintiff let a house to the defendant for a term of three years, the tenant agreeing to pay all "outgoings payable in respect of the premises." During the tenancy the plaintiff, in obedience to an order from the sanitary authority, reconstructed the drainage system of the house : Held, that the shortness of the term was no reason for putting a more limited construction upon the expression "outgoings" than that which would have been put upon it in a lease for a longer period, and that the defendant was liable under his agreement to recoup the plaintiff the expense of the drainage work. Decision of Farwell J. in Valpy v. St. Leonards Wharf Co., (1903) 1 L. G. R. 305, distinguished. TRIAL before Wright J. without a jury. By an agreement in writing dated March 25, 1902, the plaintiff, Mrs. Stockdale, let a house, No. 68, Brondesbury Villas, Kilburn, to the defendant for a term of three years at (1) 13 Q. B. D. 505. 1903 April 23. 1903 the yearly rent of 551. By the said agreement the defendant STOCKDALE agreed to pay "all taxes, rates, assessments, and outgoings of ASCHERBERG, every description for the time being payable in respect of the v. premises as they become due, landlord's property tax only excepted." On September 4, 1902, a notice was served upon the plaintiff by the Willesden Urban District Council, under the provisions of the Public Health Act, 1875, stating that a nuisance existed upon the premises and requiring the plaintiff to abate it, and for that purpose to take up and relay throughout the premises the existing drain, which was defective. The plaintiff, in obedience to the notice, executed the required work at a cost of 831. 10s., and the action was brought to recover that sum from the defendant under the above-mentioned agreement. Hohler, for the plaintiff. The expense incurred by the plaintiff was an "outgoing" within the meaning of the defendant's covenant: Aldridge v. Ferne. (1) And in Foulger v. Arding (2), where the expense sought to be recovered was that of abating a nuisance by removing a privy and constructing a water-closet, Collins M.R. (3) treated it as clear that the word "outgoings" would cover such an expenditure. In Brett v. Rogers (4), where the landlord was required under the Public Health (London) Act, 1891, to take up a defective drain and relay it, it was held that the obligation was a "duty imposed in respect of the premises"; and that decision was approved by the Court of Appeal in Farlow v. Stevenson. (5) And the word "outgoing" is as comprehensive as the word "duty." Foù (A. Brown with him), for the defendant. It may be that, according to the earlier cases decided before Foulger v. Arding (2), the terms of the present covenant would have sufficed to render the defendant liable. But that case constitutes a new departure. Collins M.R. there points out (6) that "underlying the whole matter is the consideration that we are dealing with a contract of demise between landlord and (1) (1886) 17 Q. B. D. 212. (3) [1902] 1 K. B. at p. 707. (4) [1897] 1 Q. B. 525. 1903 V. tenant, and the covenant must be assumed to relate only to matters which may reasonably be supposed to have been con- STOCKDALE templated by the parties as being within the purview of such a ASCHERBERG. contract." The Master of the Rolls was there, no doubt, specially referring to the nature of the work to be done; but he must be assumed to have meant that, in considering whether the covenant covered the particular obligation, all the circumstances of the case must be looked at, including the length of the term, the locality, and the proportion which the rent reserved bears to the cost of the work. In Valpy v. St. Leonards Wharf Co. (1), where there was a lease of a cottage from year to year at a rent of 201., Farwell J. adopted the above-mentioned dictum of Collins M.R., and held that a covenant by the tenant to pay "outgoings" did include the expense of paving a yard in obedience to a notice from the local authority at a cost of 581. In Wilkinson v. Collyer (2) the expenses sought to be recovered from the tenant, amounting to 277. 16s., were the apportioned part of the cost of paving the street upon which the premises abutted. The Court held that, having regard to the limited terms of the covenant in that case, the tenant was not liable; but Watkin Williams J. (3) added as a further reason for so holding: "Seeing that the term was for three years only, and the annual rent of the premises but 381., I cannot think the parties could have contemplated that such a burthen as this should be imposed upon the tenant." On the other hand, in Batchelor v. Bigger (4), where the lease was for three years at a rent of 751., Kay J. held that the payment of 681. 15s. 11d. for the landlord's share of the expenses of paving the street came within the expression "outgoings," and that the meaning of that expression could not be affected by the shortness of the term. But that case is distinguishable from the present to this extent, that the fact of the street not having been already paved was perfectly apparent to the eye, and the tenant may reasonably be supposed to have contemplated that the local authority might possibly during the term require the work of paving to be done, whereas the defective condition of (3) 13 Q. B. D. at p. 9. (4) (1889) 60 L. T. 416. (1) 1 L. G. R. 305. the drainage system of a house is not apparent, and, therefore, STOCKDALE not equally within the contemplation of the parties. 1903 บ. ASCHERBERG. Secondly, assuming that the word "outgoings" primâ facie includes such an expense as the present, nevertheless its primâ facie meaning ought to be cut down if the context of the lease requires it: Arding v. Economic Printing Co. (1); and here the covenant refers to outgoings "for the time being payable," and "as they become due." That language points rather to the contemplated outgoings being of a recurrent nature, and not as including such an expense as the present, which is practically incurred once for all. WRIGHT J. In this case I think I am bound by the decisions in Brett v. Rogers (2) and Farlow v. Stevenson (3), except with regard to two points-as to the effect to be given to the words "for the time being payable" and "as they become due," and as to the shortness of the term and the proportion which the rent reserved bears to the expenditure sought to be recovered. I do not think that the words "as they become due" can be regarded as cutting down the application of the covenant to costs of an ordinarily recurrent character. So to interpret those words would be to give them a more limited meaning than they would ordinarily bear. Nor, in my opinion, do the words "for the time being" assist the defendant's contention. The other point presents greater difficulty. There has, no doubt, for a long time past been a tendency on the part of the Courts in cases of this kind to restrict the primâ facie meaning of the covenants by reference to the circumstances of the particular case; and that tendency has become more marked in recent cases.. It is one, however, which I confess I have some difficulty in appreciating, for I cannot help agreeing with what Kay J. says in Batchelor v. Bigger (4), that "it is extremely difficult to say that a covenant, the words of which would, in the case of a term of twenty-one years, include a payment by the tenant, must be construed not to include it because the (1) (1899) 79 L. T. 622. (3) [1900] 1 Ch. 128. |