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Superior Courts : Exchequer Chamber.-Bankruptcy.--Analytical Digest of Cases. 425 his having a good defence on the merits as s. 90, to remove the petition from London to to a part, and admitted the residue, and Bristol, was refused where a long time had the Commissioner then dispensed with the elapsed, and the stock was in London, and bond under s. 82: Held, allowing excep the assignees who were traders also resided tions to the ruling of Mr. Baron Martin there, although it was alleged the petition in an action to try the validity of the Act had been improperly filed and prosecuted of bankruptcy thereon, that no act of in London. bankruptcy had been committed.
| This was an application under the 12 & 13 This was an action directed by the Court of Vict. c. 106, 8. 90, to remove the petition in Bankruptcy, in order to try whether the plain- this case from London to Bristol, on the tiff had committed an act of bankruptcy. It ground it had been improperly ordered to be appeared that upon his being summoned, under filed and prosecuted in the former place. the 12 & 13 Vict. c. 106, ss. 78, 79, to admit a By that section it is enacted, that “every pedebt due to the defendant, the plaintiff ad-tition for adjudication of bankruptcy against mitted a part of the debt, and deposed to his or by any trader liable to become bankrupt, having a good defence on the merits as to the shall be filed and prosecuted in the Court residue, and Mr. Commissioner Evans then within the district of which such trader shall dispensed with the bond required by s. 82. On have resided or carried on business for six the trial before Martin, B., the jury were di- months next immediately preceding the time rected that the plaintiff had committed an act of filing such petition, except where otherwise of bankruptcy on the eighth day after filing in this Act specially provided :-provided althe admission of the part of the debt, and the ways that the senior Commissioner shall have defendants accordingly obtained a verdict. power, whenever he may deem it expedient, to
Pearson appeared in support of exceptions order any petition against or by any trader to from this ruling; Hugh Hill for the defendants, be prosecuted in any district, with or without contrà.
reference to the district in which the trader The Court said, that as the provisions of the shall have resided or carried on business.” 82nd section had not been followed the plain-l Exparte Morrison, i Mont. Deac. & De G. tiff had not committed an act of bankruptcy, 635; Exparte Blake, i Mont. Deac. & De G. and the judgment was accordingly reversed. 262; In re Oram, 3 ib. 330; Exparte Mitchell,
ib. 397; Exparte Downes, i De Gex, 390, were Court of Bankruptcy.
cited. (Coram Mr. Commissioner Evans.)
The Court said, that as so long a time had
elapsed, and the stock was all in London, and In re Milsted. March 17, 1853.
the assignees, who were persons in trade, also BANKRUPTCY LAW CONSOLIDATION ACT.-Tresided there, it would not be beneficial to the CHANGE OF VENUE.
creditors to send the petition to Bristol, and the An application, under the 12 8:13 Vict. c. 106, I application must therefore be refused.
ANALYTICAL DIGEST OF CASES,
REPORTED IN ALL THE COURTS.
LANDLORD AND TENANT. rated as an agreement for a lease, and that, by
the payment of rent, B. became tenant from Tenancy under agreement to grant a lease.
year to year, subject to the terms of the agreeNotice to quit.--X., who held a long lease of
ment; that his interest expired of itself at the certain premises, and B., by writing, (not un
end of the term of three years first-mender seal), agreed, by words of present de
tioned in the agreement, without any notice to mise, for a lease for three years. 'from 20th quit; and that his having exercised his option September, 1845, by A. to B., and that, if B.
to take a renewed term, and given notice acshould, at the end of the term of three years,
cordingly, gave him no interest in the land; desire to renew his tenancy, then, on notice
and, consequently, that the plaintiff was engiven by B., six months before the end of such
titled to the verdict. Doe dem. Davenish v. term, A. should renew the tenancy for a further |
Moffatt, 13 Q. B, 257. term of three years, or grant an underlease of| Case cited in the judgment: Doe dem. BromAi's term, at the option of B. B. was let into field v. Smith, 6 East, 530. possession and paid rent, and afterwards gave notice that he desired a renewal of his tenancy;
ARREARS OF A FEE.FARM RENT. but the renewal was not agreed upon; and the A. was, from the 2nd July, 1805, till the 10th original term of three years expired. A., with of July, 1841 (when he was found a lunatic), out giving notice to quit, brought ejectment, and B., his committee, had ever since been, laying the demise on 30th Sept. 1848.
seised as of fee of two-thirds of a fee-farm rent Stat. 7 & 8 Vict. c. 76, was in force from of 201. 5s. per annum, payable on the 25. of 1st Jan. 1841, to 1st Oct. 1845.
September and the 25th of March, created by Held, that the demise, not under seal, ope- letters patent of the 29 Hen, 8. No payment 426
Analytical Digest of Cases : Landlord and Tenant. of this rent, or of any part thereof; had been auctioneer by an act of trespass. Brown v. made since March, 1831, nor had there been Arundell, 10 C. B. 54. any acknowledgmeni in writing relating thereto. Case cited in the judgment: Adams v. Grane,
Held, that the case was governed by the 1 C. & M. 380; 3 Tyrwh. 326. 42nd section of the 3 & 4 Wm. 4, c. 27, and, See Mortgagor. consequently, that neither the lunatic nor his committee was entitled to recover any arrears
DOUBLE VALUE. of the rent after the expiration of six years from
Form of notice to quit.-Demand of possesthe 29th of Sept. 1831. Humfrey v. Gery, 7
sion.-An action for double value under Stat. C. B. 567.
4 Geo. 2, c. 28, s. 1, for holding over after
notice to quit, is not supported by a notice DILAPIDATIONS.
that the landlord requires the tenant to give See Vicarage.
up possession at 12 at noon on, &c. (the day DISTRESS.
when the tenancy was determinable), at whick 1. Sale of goods.-How the five days are to time the landlord will attend to receive the be calculated.-In construing i Stat. 2 Wm. 4. keys and rent, and that, in the event of the c. 5, s. 2, which authorises the sale of goods/tenant not so surrendering, the landlord will distrained within five days next after the tak, demand 7s. daily rent (a rate more than double ing, the days must be calculated, as the rule the original rate of rent) till he can obtain legal now is in other cases, inclusively of the last, possession. and exclusively of the day of taking. Robind! For the requisition to deliver up the premises son v. Waddington, 13 Q. B. 753.
at noon is premature, and insufficient as a no2. Liability of landlord for act of broker.
tice to determine the tenancy. A principal is not liable in trespass for the ac
| Although a notice to quit, when regular, tion of his agent, unless he authorised it be
operates also as a demand of possession under forehand, or subsequently assented to it with the Statute without a more specific demand, knowledge of what had been done. Therefore semble, that a notice having the above defect is where, in an action of trespass against a landlord. not equivalent to a demand. Page V. TOTE, it appeared tbat he gave a broker a warrant to 15
to 15 Q. B. 684. distrain for rent, and the broker took away and
Case cited in the judgment: Wilkinson . sold a fixture, and paid the proceeds to the
· Colley, 5 Burr. 269 +. defendant, who received thein without inquiry,
EJECTMENT. but without knowledge that anything irregular Forfeiture.- Demise by estoppel.-Notice to had been done : Held, that no such authority quit. —A., in May, 1823, demised premises to or assent appeared as would sustain the action. B. for 80 years, with a proviso for re-entry in Freeman v. Rosher, 13 Q. B. 780.
case the lessee, his executors, &c., should exCases cited in the judgment: v. Gibson, ercise or carry on, or permit to be exercised or
Lane, 30; Lewis v. Read 13 M. & W. 834. carried on, the business (amongst others) of a 3. Warrant to distruin for rent.--Refusal to victualler or publican. B., in Nov., 1823; accept tender.- Where a landlord gives a war
mortgaged to C., and, in June, 1829, the rant to distrain for rent, he thereby authorises mortgage term was assigned to D., and ulte the bailiff to receive the rent if tendered, and. mately became vested in E. per Lord Campbell, C.J., semble, that the land
After B. had assigned to C., and when he lord cannot prohibit the bailiff from accepting
had no reversion, but a mere equity of redempsuch tender.
tion, he, by indenture, granted an under-lease At all events, where a warrant is delivered to
for 76 years to F., with a proviso for re-entry the bailiff, directing him to distrain and to
similar to that contained in the original lease proceed for recovery of the rent as the law
from A. Some of the mesne assignments were directs, the bailiff cannot refuse a tender on
n made subject to this underlease. the ground that he was afterwards forbidden byl In ejectment by the legal representatives a the landlord's attorney to receive it: and if, on
| E. for a breach of the covenant in the origina that ground, though truly alleged, he proceeds | lease, in using the premises as a public-house to sell, he and the landlord are liable in trover. °
or beer-shop, Hatch v. Hale, 15 Q. B. 10.
Held, ist, that the underlease granted by 4. Breaking outer door of a stable to distrain. 1 B. operated merely as a demise by estoppel, 10 -A landlord cannot break open the outer
asmuch as he had not at the time of making door of a stable, though not within the cur
or since, any legal interest; 2ndly, that the tilage, to levy an ordinary distress for rent.
lessors of the plaintiff, or the persons under Brown v. Glenn, 16 Q. B. 254.
whom they claimed, not being parties Case cited in the judgment: Poole v. Longue
underlease, or to any of the assignments
recognised and referred to it, were not bog vill, 2 Wms, Saund. 284, C., note 2.
by any covenants contained therein; 3rdly; 5. Goods protected from distress for rent that the payment to, and acceptance by, L. Auctioneer. -Goods sent to an auctioneer for rent under the underlease by B. to F. mer sale on premises occupied by him are privi- created a tenancy from year to year; and leged from distress for rent, although the such tenancy was well determined by a no place of sale is merely hired for the occasion, to quit served upon the attorney of the or the occupation has been acquired by the I nistratrix of the person who had paid to
Analytical Digest of Cases : Landlord and Tenant.
427 to the lessors of the plaintiff, and under whom
NOTICE TO QUIT. the defendant claimed. Doe dem. Prior v. See Agreement; Double Value ; Ejectment. Ongley, 10 C. B. 25.
SURRENDER OF LEASE.
By operation of law.-Eviction. ---ArgumenPayment of rent.—The payment of rent by tative traverse.-In assumpsit, the first count a tenant to an authorised agent, who pays over stated, that A. and B. were tenants of certain the rent to his principal, is evidence as against chambers to one C. at a certain rent, payable the tenant of the principal's title, although the quarterly : and that, in consideration that A. agent do not disclose his principal's name at and B. Would underlet the Chambers to D. at the time.
Ja certain rent payable quarterly, D. promised Where A. had paid rent to B., the agent of A. and B. that he would pay the said rent to C. and D., and the property for which the rentC., and that, if he should not do so, he would was paid was subsequently conveyed to C and indemnify A. and B. in respect thereof, and E., and A. still paid the rent to B., but was pay the same to
Bi; but was I pay the same to them; and the breach asnot informed by the latter of the change, and
signed was, nonpayment by D. of the rent due B. paid over the rent to C. and E.: Held, that from A. and B. to C.: Heid, that, whether the the payment so made was some evidence of declaration meant to allege the contract to the title of C. and E. to the property, and that, have been, that D. should pay C. the rent due under the circumstances, there was no neces- from A. and B. to C., or the rent due from D. sity (in an action of replevin by A. against to A. and B. under the demise which was the parties claiming under C. and E.) for the proof Iconsideration for his promise, it was not to be of the conveyance to C. and E. Hitchings v. I taken as alleging that Di's promise to pay C. Thompson, 5 Exch. R. 50.
was to extend further than his liability to pay EXECUTION,
rent under his own tenancy to A. and B. Right of landlord to one year's rent.-Cus-l D. pleaded, 6thly, a surrender (called a todid legis.--Stat. 8 Ann. c. 14, s. ), makes it surrender by operation of law), by his deliverunlawful to remove goods taken in execution ing up the possession of the chambers to A., without paying one year's arrears of rent to the and A. accepting possession thereof, with the landlord; but it does not invalidate the execu- intention of putting an end to the tenancy; tion itself. Goods, therefore, so taken are in averring that A., in so accepting the possescustodiâ legis, and cannot be distrained on by sion, acted for and on behalf of himself and the landlord for the year's rent; and they are B., with B.'s authority. To this plea A. and equally in custodia legis, for this purpose, whe. B. replied, that D., of his own wrong, quitted ther they are in the hands of the sheriff or of possession of the chambers,- because they said his vendee. Wharton v. Naylor, 12 Q. B. 673. it was agreed between them, in consideration Cases cited in the judgment: Peacock v. Purvis, that D. would become tenant of the said
2 Brod. & B. 362: Riseley v. Ryle, 11 M. & clambers to A. and B., and indemnify them in W. 16; Smallman v. Pollard, 6 M. & G. 1,001; respect of the rent, as in the first count menWest v. Hedges, Barnes, 211; Henchett v. tioned, that, in case A. and B. should give noKimpson, 2 Wils. 140.
tice to D. to terminate that agreement, and D. FISHERY.
should be desirous of continuing his occupaBy agreement in writing, the plaintiff. let to Ition of the premises, as tenant to C., A. and B. the defendant at a yearly rent the right of fish
should not occupy them, or interfere to preing in a certain river with rod and line only. Yer
| vent any arrangement which D. might be de. The defendant having so used the fishery, held,
sirous of making for continuing his occupation that the plaintiff might recover the rent under
of the premises under C. ; that A. and B. were an indebitatus count for the use and occupa
and continued ready and willing to suffer D. tion of the fishery, and that there was no ob
to continue such occupation under C., and did jection to the particulars so describing his
not interfere to prevent D. from entering into
any arrangement with C. as therein mentioned; claim. Holford v. Pritchard, 3 Exch. R. 793.
that A. and B. received the keys of the chamMORTGAGOR.
bers from D., and took possession thereof, to Right of distress.-A mortgage-deed, exe- the intent that they might let them for the becuted by the mortgagor only, contained a refit of D.; and that they refused to receive clause whereby, “ for the more effectual reco- the keys, except on the terms that D. should very of the interest, the mortgagor did attorn not be released from his liability in respect of and become tenant to the mortgagee of the the agreement in the first count mentioned, premises, at the yearly rent of 406., to be paid absque hoc, that all the estate, &c., and tenancy half-yearly, so long as the principal sum re- of D. in the chambers, were duly surrendered mained secured.” The mortgagor continued by act and operation of law, in manner and in possession, and made several of these half- form, &c. : Held, bad, on special demurrer, on yearly payments: Held, that the subsequent the ground that the inducement was incon. occupation, connected with the covenant, cre- sistent and incongruous with the traverse. ated the relation of landlord and tenant, and The 7th plea stated, that, before the rent that the mortgagee might distrain for a half- became due from A. and B. to C., it had been yearly payment in arrear. West v. Fritche, 3 agreed between A., for and on behalf of himExch. R. 216.
self and B., and with his authority, and D.,
Analytical Digest of Cases : Landlord and Tenant. that D. should deliver up the possession of the maintain trespass unless he does some act inchambers to A., and that, in consideration dicating an intention to continue in possession. thereof, D. should be discharged from further Brown v. Notley, 3 Exch. R. 219. liability for rent; and that D. did accordingly
Case cited in the judgment: Smith v. Miles, 1 deliver up possession to A., which he on be
T. R. 475. half of himself and B. accepted : Held, that this plea set up a good defence by way of exe
UNDER-TENANT. cuted contract.
Set-off.- Rent distrained for by superior landTo that plea A. and B. replied, traversing lord.-In 1840, A. being lessee of a warehouse that it was agreed by and between A., for and and cellar under a demise from B., and also on behalf of himself and B., and D., that D. lessee under C. of other adjoining property, should be discharged from liability to pay any comprising inter alia a vault; D. became ten further rent, and that possession was accepted, ant from year to year to A. of the warehouse, in pursuance of the alleged agreement, in dis- and cellar, and vault, at an annual rent of 1851., charge of D.'s liability, in manner and form, made up of 1401. for the warehouse and cellar, &c. : Held, that the traverse was too large. and 451. for the vault. On the 27th October,
Quære, whether the replication was not also 1845, A. became bankrupt, 921. 10s. being at bad for duplicity and multifariousness? that time due as rent from D. to the bankrupt.
The 8th plea alleged, that, before the rent The assignees, upon being appointed, electei became due from A. and B. to C., A., with the to take the property held under B.; and on the sanction and authority of B., evicted D. Re- 26th of February, 1846, elected not to take the plication, traversing that A. evicted D., with property held under C. At Christmas, 1845, the sanction and authority of B. : Held, bad, rent to the amount of 1141. 78.6d., became due the traverse being too large.
from A. to C., for which amount, on the 19th The 11th plea, to the 2nd and 3rd counts of February, 1846, C. distrained upon the (the former being for use and occupation, the goods in the vault held by 1)., who, to relieve latter upon an account stated), averred, that, himself of that distress, paid that sum to C. after the accruing of the causes of action, and An action having subsequently been brought before action brought, D. was discharged by the assignees of A. against D. to recorer under the Insolvent Debtors' Act. Replica- the above sum of 921. 10s., and 351, for a quare tion, that the causes of action accrued after the ter's rent due at Christmas for the warehouse order and adjudication in the plea mentioned: and cellar : Held, that D. was not entitled to Held, bad, as amounting to an argumentative set-off the sum so paid by him to C.: Held, denial of the allegation in the plea, that the also, that the plaintiffs could well sue for the order and adjudication were made after the ac- quarter's rent due since the bankruptcy in the cruing of the causes of action. Smith v. representative character as assignees. Grakas Lovell. 10 C. B. 6.
v. Allsopp, 3 Exch. R. 186. Cases cited in the judgment: Gore v. Wright,
VICARAGE. 8 Ad. & E. 118; 3 N. & P. 243; Wallace v. Kelsall, 7 M. & W.264; 8 Dowl. P.C. 841 ; |
| Dilapidations. -- H., the incumbent of 2 1 H. & W. 25; Lush v. Russell, 5 Excb. R. vicarage, died leaving the buildings of the 203.
vicarage out of repair. B. succeeded him, and
died, whereupon S. was appointed. The preTENANT FOR LIFE AND REMAINDER-MAN.
mises still being dilapidated, the executrix of · Estoppel.-Presumption of surrender of term. B. was compelled to pay S. the amount neces
-Tenant for life, under a devise with a leas- sary to put them in repair, and she then brought ing power, let to defendant by a lease, not no- an action against the executor of H.; Held, ticing the power. After the death of lessor, a that the action was maintainable, this being a succeeding tenant for life, under the same de personal right, which survived to the execuvise, brought ejectment against defendant, on trix ; that she was entitled to recover so much the ground that the lease was not a valid exe- as would compensate for the dilapidations which cution of the power.
occured in the time of H.; and that the fact of Held, that the defendant was not estopped there being timber or stone on the glebe which from setting up an outstanding term of years might be used for repairs, was only a circumin trustees, created by a tenant in fee, from stance in diminution of damages. Banbury ". whom the devisor had inherited, and that (be- Hewson, 3 Exch. R. 558. fore Stat. 8 & 9 Vict. c. 112, came into opera
WARRANTY. tion) a surrender of the term could not be presumed from mere lapse of time. Doe dem.
No implied warranty of fitness for habitaties Lord Egremont v. Larodon 120 B zu. T arises from a mere contract of letting. There
is no implied duty in the owner of a house Cases cited in the judgment: Doe dem. Black
m. Black which is in a ruinous and unsafe condition, 39 nell v. Plowman, 2 B. & Ald. 573.
Jinform a proposed tenant that it is unfit for TRESFASS.
| habitation : and no action will lie against hier Not maintainable by tenant.--Where the in. / for an oinission to do so, in the absence of eso terest of a tenant is determined by the death of press warranty, or active deceit. Keales a tenant for life under whom he holds, the pos- | Earl of Cadogan. 10 C. B. 591. session ceases with the interest, and he cannot
The Legal Observer,
DIGEST, AND JOURNAL OF JURISPRUDENCE.
SATURDAY, APRIL 2, 1853.
JURISDICTION OF THE ECCLESI- touched, our friends at Doctors' Commons ASTICAL COURTS.
predict that, the kingdom will be convulsed
Without participating in the apprehenMANIFESTO FROM DOCTORS' COMMONS. sions upon which this suggestion is founded.
It is quite clear that the limited but we are prepared to admit that the question highly respectable and influential section of upon which the Legislature and the Gothe Profession which is associated with the vernment is now expected to act, is one, the name of Doctors' Commons, is not about to importance of which can hardly be exagsubmit without a struggle to the sentence gerated. We believe it is truly stated, of condemnation which the House of Com-that “ the public has no idea of the nature mons-on this occasion it must be ad- and amount of the common form business mitted responding to the opinion of the transacted in the Prerogative Registry. general community-seems disposed to pass Nearly 12,000 grants of probate and admiupon the Ecclesiastical Courts. A paper, nistration have passed its seal in the last framed with great labour and ability, has twelve months, disposing of property which been put forward, with the sanction of the may be estimated at about 50,000,0001. heads of the Profession practising in Doc- sterling. The stamp duties during that tors' Commons, avowedly with the modest time gathered in to the revenue by the and confined purpose of “ making the pub- agency of the practitioners, exceeded lic acquainted with the system pursued in 800,0001.” We are disposed to agree, the Prerogative Court of Canterbury,” but therefore, with those who consider this as really with the intention of showing how a “national and not a professional quesmuch may be said in favour of the main- tion," and in that view advocate the transtenance of the jurisdiction now exercised by fer of jurisdiction to a tribunal, which canthe Ecclesiastical Courts, and how little ad- not only grant probate of a will, but also vantage would result from the transfer of try its validity, and carry out its provisions the jurisdiction to any tribunal differently in every case. constituted.
As may be expected, the opponents of In time of peace, the profits' made in the change take courage in this instance from Prerogative Court from testamentary causes a consideration of the numerous and aboris the source from which the emoluments tive efforts made, from time to time during of that branch of the Profession congre- the last twenty years, to effect that which gated in Doctors' Commons chiefly arises, is now regarded by the public generally as and the great object aimed at in the mani- a necessity, and treated in and out of Parfesto alluded to, is to suggest the inexpe- liament-indeed everywhere but in Doctors' diency of interfering with the existing Commons-as determined upon. After Courts of Probate. Suits for church-rates, adverting to the fact, that so long since as brawling, and defamation, nay, even matri- the year 1833, the Real Property Law Commonial causes, may be taken away without missioners recommended the transfer of much lamentation, or any great public in- jurisdiction in testamentary and matrimojury, but if the system now in operation for nial causes to a Court of Equity, the folthe administration of the personal estates lowing enumeration is given of measures of persons dying testate and intestate be introduced in Parliament, which, in the
VOL. xlv. No. 1,308.