Superior Courts: Exchequer Chamber.—Bankruptcy.-Analytical Digest of Cases. his having a good defence on the merits as 425 s. 90, to remove the petition from London to Bristol, was refused where a long time had elapsed, and the stock was in London, and the assignees who were traders also resided there, although it was alleged the petition had been improperly filed and prosecuted in London. THIS was an action directed by the Court of Vict. c. 106, s. 90, to remove the petition in THIS was an application under the 12 & 13 Bankruptcy, in order to try whether the plain- this case from London to Bristol, on the tiff had committed an act of bankruptcy. appeared that upon his being summoned, under filed and prosecuted in the former place. It ground it had been improperly ordered to be 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. order any petition against or by any trader to power, whenever he may deem it expedient, to be prosecuted in any district, with or without Pearson appeared in support of exceptions from this ruling; Hugh Hill for the defendants, contrà. The Court said, that as the provisions of the 82nd section had not been followed the plaintiff had not committed an act of bankruptcy, and the judgment was accordingly reversed. Court of Bankruptcy. (Coram Mr. Commissioner Evans.) reference to the district in which the trader shall have resided or carried on business." 635; Exparte Blake, 1 Mont. Deac. & De G. Exparte Morrison, 1 Mont. Deac. & De G. 262; In re Oram, 3 ib. 330; Exparte Mitchell, ib. 397; Exparte Downes, 1 De Gex, 390, were cited. The Court said, that as so long a time had elapsed, and the stock was all in London, and the assignees, who were persons in trade, also BANKRUPTCY LAW CONSOLIDATION ACT.-resided 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 & 13 Vict. c. 106, application must therefore be refused. ANALYTICAL DIGEST OF CASES, REPORTED IN ALL THE COURTS. LANDLORD AND TENANT. AGREEMENT FOR LEASE. years, Tenancy under agreement to grant a lease.— Notice to quit.-A., who held a long lease of certain premises, and B., by writing, (not under seal), agreed, by words of present demise, for a lease for three years, from 29th September, 1845, by 4. to B., and that, if B. should, at the end of the term of three desire to renew his tenancy, then, on notice given by B., six months before the end of such term, A. should renew the tenancy for a further term of three years, or grant an underlease of 4.'s term, at the option of B. B. was let into possession and paid rent, and afterwards gave notice that he desired a renewal of his tenancy; but the renewal was not agreed upon; and the original term of three years expired. A., without giving notice to quit, brought ejectment, laying the demise on 30th Sept. 1848. Stat. 7 & 8 Vict. c. 76, was in force from 1st Jan. 1844, to 1st Oct. 1845. Held, that the demise, not under seal, ope rated as an agreement for a lease, and that, by the payment of rent, B. became tenant from year to year, subject to the terms of the agreement; that his interest expired of itself at the end of the term of three years first-mentioned in the agreement, without any notice to quit; and that his having exercised his option to take a renewed term, and given notice accordingly, gave him no interest in the land; and, consequently, that the plaintiff was entitled to the verdict. Doe dem. Davenish v. Moffatt, 13 Q. B, 257. Case cited in the judgment: Doe dem. Bromfield v. Smith, 6 East, 530. ARREARS OF A FEE FARM RENT. A. was, from the 2nd July, 1805, till the 10th of July, 1841 (when he was found a lunatic), and B., his committee, had ever since been, seised as of fee of two-thirds of a fee-farm rent of 201. 5s. per annum, payable on the 20, of September and the 25th of March, created by 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 made since March, 1831, nor had there been any acknowledgment in writing relating thereto. Held, that the case was governed by the 42nd section of the 3 & 4 Wm. 4, c. 27, and, consequently, that neither the lunatic nor his committee was entitled to recover any arrears of the rent after the expiration of six years from the 29th of Sept. 1831. Humfrey v. Gery, 7 C. B. 567. DILAPIDATIONS. See Vicarage. DISTRESS. auctioneer by an act of trespass. Brown v. Case cited in the judgment: Adams v. Grane, DOUBLE VALUE. Form of notice to quit.-Demand of possession.-An action for double value under Stat. 4 Geo. 2, c. 28, s. 1, for holding over after notice to quit, is not supported by a notice that the landlord requires the tenant to give up possession at 12 at noon on, &c. (the day when the tenancy was determinable), at which 1. Sale of goods.-How the five days are to time the landlord will attend to receive the be calculated. In construing 1 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. Robinson v. Waddington, 13 Q. B. 753. Case cited in the judgment: Wilkinson r. EJECTMENT. For the requisition to deliver up the premises 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. More. it appeared that he gave a broker a warrant to 15 Q. B. 684. distrain for rent, and the broker took away and sold a fixture, and paid the proceeds to the defendant, who received then without inquiry, but without knowledge that anything irregular had been done: Held, that no such authority or assent appeared as would sustain the action. Freeman v. Rosher, 13 Q. B. 780. Cases cited in the judgment: v. Gibson, Lane, 30; Lewis v. Read 13 M. & W. 834. 3. Warrant to distrain for rent.-Refusal to accept tender.-Where a landlord gives a warrant to distrain for rent, he thereby authorises the bailiff to receive the rent if tendered, and, per Lord Campbell, C. J., semble, that the landlord cannot prohibit the bailiff from accepting such tender. At all events, where a warrant is delivered to the bailiff, directing him to distrain and to proceed for recovery of the rent as the law directs, the bailiff cannot refuse a tender on the ground that he was afterwards forbidden by the landlord's attorney to receive it: and if, on that ground, though truly alleged, he proceeds to sell, he and the landlord are liable in trover. Hatch v. Hale, 15 Q. B. 10. Forfeiture.-Demise by estoppel.—Notice to quit.-A., in May, 1823, demised premises to B. for 80 years, with a proviso for re-entry in case the lessee, his executors, &c., should exercise or carry on, or permit to be exercised or carried on, the business (amongst others) of a victualler or publican. B., in Nov., 1823, mortgaged to C., and, in June, 1829, the mortgage term was assigned to D., and ultimately became vested in E. After B. had assigned to C., and when he tion, he, by indenture, granted an under-lease had no reversion, but a mere equity of redempfor 76 years to F., with a proviso for re-entry similar to that contained in the original lease from A. Some of the mesne assignments were made subject to this underlease. E. for a breach of the covenant in the original In ejectment by the legal representatives of lease, in using the premises as a public-house or beer-shop, Held, 1st, that the underlease granted by 4. Breaking outer door of a stable to distrain. B. operated merely as a demise by estoppel, in-A landlord cannot break asmuch as he had not at the time of making it, open the outer door of a stable, though not within the curor 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 to the underlease, or to any of the assignments which Case cited in the judgment: Poole v. Longue-recognised and referred to it, were not bound vill, 2 Wms. Saund. 284, c., note 2. 5. Goods protected from distress for rent.Auctioneer.-Goods sent to an auctioneer for sale on premises occupied by him are privileged from distress for rent, although the place of sale is merely hired for the occasion, or the occupation has been acquired by the by any covenants contained therein; 3rdly, that the payment to, and acceptance by, E. of rent under the underlease by B. to F. merely created a tenancy from year to year; and that such tenancy was well determined by a notice to quit served upon the attorney of the admi nistratrix of the person who had paid the rent Analytical Digest of Cases: Landlord and Tenant. to the lessors of the plaintiff, and under whom the defendant claimed. Doe dem. Prior v. Ongley, 10 C. B. 25. EVIDENCE OF HOLDING. Payment of rent. The payment of rent by a tenant to an authorised agent, who pays over the rent to his principal, is evidence as against the tenant of the principal's title, although the agent do not disclose his principal's name at the time. Where A. had paid rent to B., the agent of C. and D., and the property for which the rent was paid was subsequently conveyed to C and E., and A. still paid the rent to B., but was not informed by the latter of the change, and B. paid over the rent to C. and E.: Held, that the payment so made was some evidence of the title of C. and E. to the property, and that, under the circumstances, there was no necessity (in an action of replevin by A. against parties claiming under C. and E.) for the proof of the conveyance to C. and E. Hitchings v. Thompson, 5 Exch. R. 50. EXECUTION. Right of landlord to one year's rent.-Custodid legis. Stat. 8 Ann. c. 14, s. 1, makes it unlawful to remove goods taken in execution without paying one year's arrears of rent to the landlord; but it does not invalidate the execution itself. Goods, therefore, so taken are in custodia legis, and cannot be distrained on by the landlord for the year's rent; and they are equally in custodia legis, for this purpose, whether they are in the hands of the sheriff or of his vendee. Wharton v. Naylor, 12 Q. B. 673. Cases cited in the judgment: Peacock v. Purvis, 2 Brod. & B. 362; Riseley v. Ryle, 11 M. & W. 16; Smallman v. Pollard, 6 M. & G. 1,001; West v. Hedges, Barnes, 211; Henchett v. Kimpson, 2 Wils. 140. FISHERY. NOTICE TO QUIT. 427 See Agreement; Double Value; Ejectment. SURRENDER OF LEASE. By operation of law.—Eviction.—Argumentative traverse. In assumpsit, the first count stated, that A. and B. were tenants of certain chambers to one C. at a certain rent, payable quarterly; and that, in consideration that A. and B. would underlet the Chambers to D. at a certain rent payable quarterly, D. promised A. and B. that he would pay the said rent to C., and that, if he should not do so, he would indemnify A. and B. in respect thereof, and pay the same to them; and the breach assigned was, nonpayment by D. of the rent due from A. and B. to C.: Held, that, whether the declaration meant to allege the contract to have been, that D. should pay C. the rent due from A. and B. to C., or the rent due from D. to A. and B. under the demise which was the consideration for his promise, it was not to be taken as alleging that D.'s promise to pay C. was to extend further than his liability to pay rent under his own tenancy to A. and B. D. pleaded, 6thly, a surrender (called a surrender by operation of law), by his delivering up the possession of the chambers to A., and A. accepting possession thereof, with the intention of putting an end to the tenancy; averring that A., in so accepting the possession, acted for and on behalf of himself and B., with B.'s authority. To this plea A. and B. replied, that D., of his own wrong, quitted possession of the chambers,-because they said it was agreed between them, in consideration that D. would become tenant of the said chambers to A. and B., and indemnify them in respect of the rent, as in the first count mentioned, that, in case A. and B. should give notice to D. to terminate that agreement, and D. should be desirous of continuing his occupation of the premises, as tenant to C., A. and B. should not occupy them, or interfere to prevent any arrangement which D. might be desirous of making for continuing his occupation of the premises under C.; that A. and B. were and continued ready and willing to suffer D. to continue such occupation under C., and did not interfere to prevent D. from entering into that 4. and B. received the keys of the chamany arrangement with C. as therein mentioned; 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 401., 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 halfyearly payments: Held, that the subsequent occupation, connected with the covenant, created the relation of landlord and tenant, and that the mortgagee might distrain for a halfyearly payment in arrear. West v. Fritche, 3 Exch. R. 216. By agreement in writing, the plaintiff, let to the defendant at a yearly rent the right of fishing in a certain river with rod and line only. The defendant having so used the fishery, held, that the plaintiff might recover the rent under an indebitatus count for the use and occupation of the fishery, and that there was no objection to the particulars so describing his claim. Holford v. Pritchard, 3 Exch. R. 793. MORTGAGOR. form, &c.: Held, bad, on special demurrer, on the ground that the inducement was inconsistent and incongruous with the traverse. The 7th plea stated, that, before the rent became due from A. and B. to C., it had been agreed between A., for and on behalf of himself and B., and with his authority, and D., 428 Analytical Digest of Cases: Landlord and Tenant. that D. should deliver up the possession of the chambers to A., and that, in consideration thereof, D. should be discharged from further liability for rent; and that D. did accordingly deliver up possession to A., which he on behalf of himself and B. accepted: Held, that this plea set up a good defence by way of executed contract. To that plea A. and B. replied, traversing that it was agreed by and between A., for and on behalf of himself and B., and D., that D. should be discharged from liability to pay any further rent, and that possession was accepted, in pursuance of the alleged agreement, in discharge of D.'s liability, in manner and form, &c.: Held, that the traverse was too large. Quare, whether the replication was not also bad for duplicity and multifariousness? The 8th plea alleged, that, before the rent became due from A. and B. to C., A., with the sanction and authority of B., evicted D. Replication, traversing that A. evicted D., with the sanction and authority of B.: Held, bad, the traverse being too large. The 11th plea, to the 2nd and 3rd counts (the former being for use and occupation, the latter upon an account stated), averred, that, after the accruing of the causes of action, and before action brought, D. was discharged under the Insolvent Debtors' Act. Replication, that the causes of action accrued after the order and adjudication in the plea mentioned: Held, bad, as amounting to an argumentative denial of the allegation in the plea, that the order and adjudication were made after the accruing of the causes of action. Smith v. Lovell. 10 C. B. 6. Cases cited in the judgment: Gore v. Wright, 8 Ad. & E. 118; 3 N. & P. 243; Wallace v. Kelsall, 7 M. & W. 264; 8 Dowl. P. C. 841; 1 H. & W. 25; Lush v. Russell, 5 Exch. R. 203. TENANT FOR LIFE AND REMAINDER-MAN. Estoppel.-Presumption of surrender of term. -Tenant for life, under a devise with a leasing power, let to defendant by a lease, not noticing the power. After the death of lessor, a succeeding tenant for life, under the same devise, brought ejectment against defendant, on the ground that the lease was not a valid execution of the power. Held, that the defendant was not estopped from setting up an outstanding term of years in trustees, created by a tenant in fee, from whom the devisor had inherited, and that (before Stat. 8 & 9 Vict. c. 112, came into operation) a surrender of the term could not be presumed from mere lapse of time. Doe dem. Lord Egremont v. Langdon, 12 Q. B. 711. Cases cited in the judgment: Doe dem. nell v. Plowman, 2 B. & Ald. 578. maintain trespass unless he does some act in- Case cited in the judgment: Smith v. Milles, 1 UNDER-TENANT. Set-off.-Rent distrained for by superior landlord.—In 1840, A. being lessee of a warehouse and cellar under a demise from B., and also lessee under C. of other adjoining property, comprising inter alia a vault; D. became tenant from year to year to A. of the warehouse, and cellar, and vault, at an annual rent of 1851., made up of 1401. for the warehouse and cellar, and 451. for the vault. On the 27th October, 1845, 4. became bankrupt,_927. 10s. being at that time due as rent from D. to the bankrupt. The assignees, upon being appointed, elected to take the property held under B.; and on the 26th of February, 1846, elected not to take the property held under C. At Christmas, 1845, rent to the amount of 1141. 7s. 6d., became due from A. to C., for which amount, on the 19th of February, 1846, C. distrained upon the goods in the vault held by D., who, to relieve himself of that distress, paid that sum to C. An action having subsequently been brought by the assignees of A. against D. to recover the above sum of 927. 10s., and 351. for a quar ter's rent due at Christmas for the warehouse and cellar: Held, that D. was not entitled to set-off the sum so paid by him to C.: Held, also, that the plaintiffs could well sue for the quarter's rent due since the bankruptcy in their representative character as assignees. Graham v. Allsopp, 3 Exch. R. 186. VICARAGE. Dilapidations.-H., the incumbent of a vicarage, died leaving the buildings of the vicarage out of repair. B. succeeded him, and died, whereupon S. was appointed. The premises still being dilapidated, the executrix of B. was compelled to pay S. the amount necessary to put them in repair, and she then brought an action against the executor of H.: Held, that the action was maintainable, this being a personal right, which survived to the executrix; that she was entitled to recover so much as would compensate for the dilapidations which occured in the time of H.; and that the fact of there being timber or stone on the glebe which might be used for repairs, was only a circumstance in diminution of damages. Banbury v. Hewson, 3 Exch. R. 558. WARRANTY. No implied warranty of fitness for habitation arises from a mere contract of letting.-There is no implied duty in the owner of a house Black-which is in a ruinous and unsafe condition, to inform a proposed tenant that it is unfit for habitation: and no action will lie against him Not maintainable by tenant.-Where the in-for an omission to do so, in the absence of exterest of a tenant is determined by the death of press warranty, or active deceit. Earl of Cadogan. 10 C. B. 591. TRESPASS. a tenant for life under whom he holds, the possession ceases with the interest, and he cannot Keates v. 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 by it. 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 50,000,0007. 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 800,0007." 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. Z |