rent or rents of 191. 4s. each, made up to 15l. a year reserved out of the house in respect of the use of the house, and 41. 4s. a year reserved out of the house in respect of the additional value given to it by having annexed thereto the right to use the gardens in the same way as other gardens in the squares of London are ordinarily used.

Now the vendor had power to convey all these advantages to the purchaser if, in point of law, the 41. 4s. was rent issuing out of the house; for had the conveyance been made the purchaser would have acquired the reversion in fee simple in the four houses with the rents thereto annexed during the term, and at its expiration he would by the conveyance have had the fee simple. in possession; and by the grant provided for by the eighth condition, the perpetual right to use this garden by himself and his heirs or their tenants.

Whether this grant and that in the lease are to be considered as creating an easement at common law appurtenant to the house, it is not necessary to consider. It is enough to observe that this use of the garden was secured, as it could by law be; that no objection was raised, probably none could have been raised, as to the effect of such a grant; and that this benefit, whatever be its legal character, was necessary for the comfort of the house.

On the part of the defendant in error, it is contended that the sum of 41. 4s. is a mere sum in gross secured by the personal covenant of the lessee, and which he and his representatives only are liable to pay to the lessor and his personal representatives only during the term.

And the defendant in error relies upon the terms of the lease by which he alleges that that sum is only covenanted to be paid as a sum in gross, and not reserved as rent for the houses.

On the other hand the plaintiff in error, admitting that *the question must turn upon the words of the lease, insists that it may and ought to be construed in accordance with what his counsel contended to be the manifest intention of the parties, and the nature of the transaction itself as reserving the 41. 4s. for rent of the principal subject-matter, viz. the houses, in consideration of the additional value given to it by the annexation of the right to use this garden.

And we are of opinion that such appears from the lease itself to have been the intention of the parties, and that, following the guidance of the Court of Common Pleas in the leading case of Roe v. Tranmerr (1), we ought to construe the words in such a manner as to give effect to the intention of the parties as it (1) Willes, 682.

ROBINS ". EVANS.

[*426]

appears upon the instrument, even though the words used are not strictly technical.

There are to our minds many indications of such an intention both in this transaction itself and in the language of the lease, and no clear indication to the contrary. It was intended by the parties to make and take a lease which should be assignable with all the benefits conferred by the lease, including the right to use the garden, and the reversion of which should in like manner be assignable with its advantages. All convenience, and therefore the probable intent of the parties, requires that this should be upheld so far as the law will allow. And it may be upheld if the 41. 4s. be a garden rent, but not if it be a sum in gross. If it be not a rent this absurdity may follow, that the assignee of the houses will enjoy the garden, and the lessee who has parted with the houses and garden will have to pay the original lessor who may have parted with the reversion.

Now, the character of the transaction and the general intent of the parties being thus clear, let us refer to the *lease in order to see whether the words compel us to defeat that intention, or enable us to give effect to it.

The lease recites that it is made in consideration of, amongst other things, "the yearly rents hereinafter reserved." Here rents are spoken of in the plural, and although we agree that no words can make a rent of what is not in its nature a rent, yet, when the question is whether a payment is to be considered as intended to be a rent or not, its being called so by the parties interested, ought to be considered as proof of their intention.

The reddendum is, "yielding and paying therefor the yearly rent of 157." This does not exclude a reservation of further rent.

Accordingly, it is further witnessed, that "for the considerations aforesaid," that is, in consideration of taking the lease. of the house, and in consideration of the "further rent," the landlord covenants that the lessee and his assigns shall have the use of the garden, which could only be used by the occupiers of the house and is but an accessary to it, the principal subjectmatter of the demise.

Then follows the covenant by the lessee to pay the 157. a year, and also the further yearly rent or sum of 41. 4s., for, and in respect of, the right of user herein before granted of the said garden or pleasure ground, such last-mentioned rent to be payable on the days, and in all respects in a similar manner with the rent of 15l. per annum herein before reserved and made payable." This language is not merely to the effect, but to my apprehension expresses, that the 41. 4s. a year is reserved and

made payable as the 157. a year is, with a statement annexed that it is payable not out of the incorporeal hereditament from which it could not issue, but out of the houses from which it could issue; and that in consideration of the value of the houses, without *which the use of the garden could not be had, being increased by the use of the garden.

This is again apparent in the terms of the proviso for re-entry for the landlord and the assignee of the reversion, which applies to both the payment of the 157. and the payment of the 4l. 4s., and which could not be exercised by the assignee of the reversion, unless the 41. 4s. were considered to be reserved as a rent.

Therefore, inasmuch as the parties have themselves called the payment a rent, and it is capable of being so, and the intention expressed upon the lease can be given effect to by so holding it, and will be defeated by not doing so; we construe it to be a rent, and we hold that the vendor had a good title to what he contracted to sell.

As for the cases cited in which certain collateral payments have been held not to be rents, they are inapplicable to the case of a covenant to pay an additional sum as rent for the principal subject of demise in respect of some benefit to be enjoyed with the house as an accessary thereto.

It may be added, that the question whether a demise by the lessor and a covenant by the lessee to pay a yearly sum without any formal reservation constitute a rent, was decided in the affirmative by Lord CoкE in Atto v. Hemming (1).

In our opinion the judgment of the Court of Exchequer ought to be reversed and judgment given for the defendant. But as the majority of the COURT are of a different opinion, the judgment is affirmed. Judgment affirmed.

IN THE COURT OF EXCHEQUER.

CURLEWIS v. BROAD.

(1 H. & C. 322-326; S. C. 31 L. J. Ex. 473; 10 W. R. 797.)

A process server is not liable to an action for a breach of duty in neglecting to indorse on a writ of summons the time of service, as required by the 15th section of the Common Law Procedure Act, 1852 (2).

DECLARATION. That after the passing and coming into force of the Common Law Procedure Act, 1852, and before and at the time of the defendant's employment, as hereinafter mentioned, the defendant was a process server and the business of a process server exercised and carried on; and the defendant (1) 2 Bulst. 281.

(2) See now R. S. C., Order IX.,

CURLEWIS

r.

BROAD.

[ *323 ]

before such employment had on divers occasions been employed by the plaintiff and other persons to serve writs of process on the persons against whom such writs were issued; and the defendant had served such writs and had duly indorsed on such writs the indorsements of the time of such service within the time and as was and is required by the said statute. And thereupon, after the coming into force of the said Act, the plaintiff commenced an action in her Majesty's Court of Exchequer, &c., against one W. Wignall, for the recovery of a debt justly due to the plaintiff from the said W. Wignall, by the plaintiff causing to be issued a writ of summons out of the said Court against the said W. Wignall at the suit of the plaintiff, in the form and under and according to the said Act, and which said writ the plaintiff caused to be duly indorsed with the indorsements required by the Act, and also to be specially indorsed with the particulars of the plaintiff's claim, according to the said Act, in the special form therein provided. (The declaration then set out the indorsements.) And thereupon the plaintiff retained and employed the defendant as such process server to serve the said writ of summons upon the said W. Wignall, according to the provisions of the said Act of Parliament, for reward to the defendant in that behalf; and for that purpose the plaintiff at the same time caused the said writ of summons, with the said indorsements thereon, together with a copy of such writ and indorsements, to be delivered to the defendant as such process server for the purpose aforesaid, and the defendant as such process server accepted such retainer and employment, and received the said writ with the said indorsements thereon, and the said copy of the said writ and of the said indorsements thereon, from the plaintiff for the purpose aforesaid. And thereupon the plaintiff as such process server, in consideration of the premises, promised the plaintiff that in case he, the defendant, should serve the said writ upon the said W. Wignall, that he the defendant would do and perform his duty in that behalf. Averments: that the defendant did afterwards personally serve the said writ of summons with the said indorsements thereon upon the said W. Wignall, according to the said Act: that all things have happened, &c., to entitle the plaintiff to have the defendant do and perform his duty in that behalf. Breach: that the defendant as such process server did not do or perform his duty in that behalf in this: that he did not nor would, within three days after such service of the said writ on the said W. Wignall, indorse on the said writ the day of the month and week of such service thereof as required by the said Act, and as he ought to have done, but wholly omitted and neglected so to do: that although the said W.

Wignall did not cause any appearance to be entered in the said. action to the said writ, according to the exigency of the said writ, and made default in such appearance, yet by reason of the defendant's said neglect and omission of his said duty, &c., the plaintiff was wholly hindered and prevented from signing final judgment in the said action against the said W. Wignall, as he might and ought and otherwise would have been entitled to have done and would have done, at the expiration of eight days after such service of the said writ, *inclusive of the day of such service; and thereby the said service of the said writ and the expense thereof became and were wholly useless and of no avail, &c.

Plea. That the defendant, before and at the time of the alleged employment in the declaration mentioned, was not retained or employed or instructed in any way to indorse on such writ of summons the time of service thereof as required by the 15th section of the Common Law Procedure Act, 1852 (1), and that he never was at any time retained or employed by the plaintiff, or any other person for him, to do more than serve the said writ, and was not at any time requested or directed to make such indorsement.

Demurrer, and joinder therein.

H. T. Cole, in support of the demurrer:

The plea affords no answer to the action. The defendant having, as a process server, accepted the employment to serve the plaintiff's writ, it was the duty of the defendant to indorse on it the time of service, as required by the 15th section of the Common Law Procedure Act, 1852 (1).

*

(CHANNELL, B.: Is it not the duty of the attorney to see that the indorsement is made ?)

Perhaps the attorney sends the writ into the country at a distance to be served.

(MARTIN, B.: Suppose the defendant had pleaded that he was told by his employer to serve the writ but not to indorse on it the time of service.)

In that case he would be excused, but in the absence of any directions it was his duty to indorse the writ.

(CHANNELL, B.: The Act says "the person serving the writ; therefore, if the fact of being employed to serve it raises a duty, if an attorney sent the writ in a letter to a friend and asked him to serve it he would be bound to indorse it.)

(1) See now R. S. C., Order IX. r. 15.

R.R.-VOL. CXXX.

35

CURLEWIS

v.

BROAD.

[ *324 ]

[ *325 ]