agreed to take the said close, &c. as tenant thereof, and the defendant thereupon became the incoming tenant of B, justifying the trespass as such incoming tenant. Replication, admitting that the close was the soil of B, de injuria absque residuo causæ :— Held, on special demurrer, that the replication was ill, as improperly putting in issue an authority in law derived from the plaintiff. Held, also, that the plea was good, upon general demurrer. Milner v. Myers, 15 Law J. Rep. (N.S.) Q.B. 157; nom. Milner v. Jordan, 8 Q.B. Rep. 615. (B) CONTRACTS Between. [See (A) (a) (4).] (a) Construction of. Where by a memorandum in writing the plaintiff agreed to let a house at a yearly rental of 50%, with a proviso that in consideration of the yearly rent as aforesaid being duly paid, &c., and the memorandum concluded "likewise the stable and loft now occupied by H (a third party) at a further rental of 251. per annum, to be paid on the usual quarter day:"-Held, that the quarterly payment applied only to the latter rent. Coomber v. Howard, 1 Com. B. Rep. 440. A A railway company agreed with the landlord for part of a farm; and afterwards by a mistake he, on the same day, conveyed the part to the company, and granted a lease of the whole to a tenant. question arose whether the landlord or the company should make compensation to the tenant. The company took possession, and the tenant brought ejectment:- Held, that the company could maintain a suit to stay the ejectment and ascertain the rights, and an inquiry was directed. Norwich Rail. Co. v. Wodehouse, 11 Beav. 382. (b) For quiet Enjoyment. A, in 1841, agreed to let to B premises, "subject to the same conditions as were mentioned in an agreement to A from F," at a certain yearly rent, for the term of eight years and a quarter, and that if F was willing to accept B as tenant instead of A, B was willing to take the remainder of the lease or memorandum from F, and become his tenant. F was tenant to D, and F's term expired in 1844, whereupon F brought an action of ejectment against B, and recovered possession:-Held, in an action by B, on this agreement, alleging after mutual promises that the defendant promised "that B should and might quietly use, occupy, possess, and enjoy the said premises during the said term for which A had so agreed to let them," that this claim was not made out, as the law would not imply from an agreement to let subject to conditions, in the absence of shewing what they were, an absolute contract for quiet enjoyment, and that it was not incumbent on the defendant to shew what they were. Held, also, that, at all events, the implied contract for quiet enjoyment, if indeed it could at all be implied from a mere agreement to let, was confined to the interest of A; and that, in order to enable B to recover, he ought to shew the continuance of A's interest. Messent v. Reynolds, 15 Law J. Rep. (N.S.) C.P. 226; 3 Com. B. Rep. 194. (C) OF THE RENT. (a) At what Period payable. Premises were demised from A to B from the 25th of March 1844, for a twelvemonth certain, and from thence until determined by a six months' notice from B expiring at any quarter of a year, at the rent of 1201., per annum :-Held, that the rent was payable yearly, and that A could not recover in use and occupation for the quarter ending the 25th of December 1845. Collett v. Curling, 16 Law J. Rep. (N.S.) Q.B. 390; 10 Q.B. Rep. 785. (b) Payment to Ground Landlord. A plaintiff in replevin may, in bar to an avowry for rent, plead a compulsory payment to the ground landlord or other incumbrancer having claims paramount to those of the immediate landlord making the distress. Under such a state of facts the proper form of plea is riens in arrere, concluding to the country. A plea setting out the facts specially and concluding with a verification,-Held, to be bad on special demurrer. Jones v. Morris, 18 Law J. Rep. (N.S.) Exch. 477; 3 Com. B. Rep. 742. In the year 1840, A being the lessee of a warehouse and cellar, under a demise from B, and being also the lessee under C of property comprising inter alia a vault, D became tenant from year to year to A of the warehouse and cellar and vault, under an annual rent of 1851., made up of 1401. for the warehouse and cellar, and 451. for the vault. On the 27th of October 1845 A became bankrupt, 921. 10s. being at that time due as rent from D to A. 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 from this distress, paid that sum to C. An action having been subsequently brought by the assignees of A against D, to recover the above sum of 921. 10s., and also 351., being one quarter's rent of the warehouse and cellar, due at Christmas 1845,-Held that D was not entitled in such action to avail himself of the payment of 1147. 7s. 6d. made by him to C. Graham v. Allsopp, 18 Law J. Rep. (N.S.) Exch. 85; 3 Exch. Rep. 186. (c) When Payment of, Evidence of Title. A receipt of rent from the tenant by an actual agent of a lessor, although not known to be such by the tenant at the time of payment, is evidence for the jury of the lessor's title to the premises. Replevin. Plea in bar, non tenuit. W and B being entitled to certain premises as trustees of C, conveyed their estate to Ŵ and N, who conveyed it to the defendants. The plaintiff paid rent to H during the time that he was agent both for W and B and W and N, and received from him receipts in the following form:-"Received for the trustees (not naming them) of C," &c. The plaintiff was ignorant of the conveyance of the legal estate to W and N, and of H being their agent. The defendants proved the conveyance from W and N to themselves, but not the conveyance from W and B to W and N-Held, that the payment of rent to the agent of W and N, although he was not known to be such, was evidence of the defendants' title to the premises. Hitchings v. Thompson, 19 Law J. Rep. (N.s.) Exch. 146; 5 Exch. Rep. 50. (d) Penal Rent. A demised premises to B for a term of years, "yielding and paying to A the yearly rent of 100l., and also yielding and paying to A on the days of payment of the said yearly rent, over and above the same rent, a further yearly rent or sum according to the rate of 201. the acre of grazing land which should be broken up into tillage by B during the term, and also yielding and paying to A on the days of payment of the said yearly rent first named, over and above the same rent, "according to the rate of 201. the acre" of any closes which B. should underlet, or from which he should take a third crop of corn without seeding it down, and also yielding and paying to A on the days of payment of the firstmentioned rent, over and above the same rent, the further yearly rent or sum of 201. the acre of land which should be mowed for hay, &c., without being manured once at least in every three years. The said several eventual and contingent rents, if any such should become due, to be additional to the firstmentioned rent, and to be paid and payable halfyearly by equal portions. The first payment to be made on the day of payment of the first-mentioned rent which should first or next happen after such eventual or contingent rent should have been incurred, and to continue payable thenceforth during all the residue of the term thereby created." B in one year took a third crop of corn without seeding down:Held, that B was liable to the penal rent of 201. per acre during the residue of the term though the branch of the covenant imposing such penalty did not contain the terms "further yearly rent" which were contained in the other branches of such covenant. Bowers v. Nixon, 18 Law J. Rep. (N.S.) Q.B. 35; 12 Q.B. Rep. 558. (D) LANDLORD'S REMEDIES. (1) At Common Law. A distress cannot be made at common law after the tenancy has been determined by notice to quit, though the rent may have become due before such determination. And an avowry for such rent must therefore be framed so as to bring the case within the 8 Ann. c. 14. Williams v. Stiven, 15 Law J. Rep. (N.S.) Q.B. 321; 9 Q.B. Rep. 14. (2) Notice of. A parol notice of distress is insufficient, under the statute 2 Will. & M. sess. 1. st. 5. s. 2. Wilson v. Nightingale, 15 Law J. Rep. (N.S.) Q.B. 309; 8 Q.B. Rep. 1034. A notice of distress for rent in arrear stated that the party giving the notice had "distrained the goods, chattels and things mentioned in the inventory hereunder written." In the inventory referred to one article was named, and then followed the words "and any other goods and effects that may be found in and about the said premises," &c. :-Held, in an action for a wrongful sale, that such notice, though DIGEST, 1845-1850. very loose, could not be considered insufficient, as it appeared that all the goods upon the premises were intended to be, and were distrained upon. Upon the trial of an action against several defendants, where the only plea pleaded is not guilty, it is in the discretion of the Judge at the end of the plaintiff's cases to direct a verdict of acquittal in favour of one of the defendants against whom there is no evidence. Wakeman v. Lindsey, 19 Law J. Rep. (N.S.)-Q.B. 166. (3) What may be distrained. Where the sheriff seizes goods in execution, and assigns to the execution creditor, having notice that a year's rent is due to the landlord, though he may be liable to an action at the suit of the landlord, yet such landlord cannot distrain for his year's rent while the goods are in the possession of the sheriff or his assignee. Re Trespass qu. cl. fr. of plaintiff. Plea, entry to seize growing crops under a distress for rent. plication, a previous seizure under a fi. fa., at the suit of the plaintiff against the tenant of the locus in quo, and an assignment to the plaintiff by the sheriff under it. Rejoinder, that the seizure was made after notice to the sheriff and to the plaintiff that a year's rent was due to the landlord, and that neither the plaintiff nor the sheriff paid such year's rent, wherefore the landlord (the defendant) distrained : -Held, that the rejoinder was bad. Held, also, that the replication was good, and was no departure from the declaration, which stated the closes to be the closes of the plaintiff, for although the replication shewed a tenant from whom the rent was due at the time of the execution, yet such possession was consistent with the possession of the plaintiff at the time of the trespass. Wharton v. Naylor, 17 Law J. Rep. (N.s.) Q.B. 278; 12 Q.B. Rep. 673. Though growing crops seized under a fi. fa. are protected from distress at common law, yet if the execution creditor by reason of his claiming some things distrainable at common law is driven to rely on the statute 56 Geo. 3. c. 50, he is bound to bring himself in his pleading within the provisions of that statute. And therefore, in an action of trover for pigs, swine, wheat, straw, and other goods, &c., the defendant (the landlord of a farm) justified under a distress for rent, and the plaintiff, in his replication, set out a fi. fa. on a judgment recovered against M C (the tenant), and an assignment to him (the plaintiff) by the sheriff of all the crops, under an agreement by which the plaintiff agreed to use and expend the produce on the farm according to the custom of the country, and alleged that the wheat, straw, &c. seized was the produce of the crops, and that the pigs and swine were kept to consume the straw and produce under the provisions of the statute and the agreement:-Held ill, for not shewing that there was no covenant or written agreement between the landlord and tenant within the 3rd section. Secondly, the plaintiff's agreement, as set out in the replication, being that he would not sell or dispose of or carry off from the farm any straw, &c., except such as M C had a right to sell or dispose of in case the execution had not issued,-Held, that the replication which did not negative that the 3 A straw, &c. was straw which M C had a right to dispose of, was, for this reason, also ill. Thirdly, the plea having stated the possession of M C, the replication as to the residue of the goods, &c., stated that M C at the time when, &c. was in possession of part only, and not of the whole of the said farm, and the said residue was not on the said farm in the possession of M C,-Held ill, as being either an argumentative denial of M C's possession, and of the cattle, &c. being on the farm, or an informal new assignment. Hutt v. Morrell, 16 Law J. Rep. (N.S.) Q.B. 240. To a declaration in replevin, for taking the cattle, goods, and chattels of the plaintiff, the defendant made cognizance as bailiff of W M, and justified the taking for rent due to W M, from the occupier JT (W M's tenant). Plea in bar, that the premises in which the cattle, goods, and chattels were taken, were occupied by J T as tenant, at a yearly rent; that, at the time of the making of the distress, JT was a 66 common public livery stable-keeper,' and was used in his trade" as such," from time to time, to take in, to feed, to keep, and to clean all other persons' horses and carriages who placed the same with him; that it was necessary for the carrying on such trade that horses and carriages should be kept and taken care of on the premises and that the cattle, goods, and chattels distrained were placed and remained on the premises to be managed and dealt with by J T in his said trade, as defendant well knew, &c.:-Held, that horses and carriages standing at livery may be distrained for In trespass for entering the plaintiff's dwellinghouse, the defendant pleaded, that at the said time when, &c., S held certain premises, situate at, &c., as tenant thereof to the defendant, under a certain demise thereof, made on &c., by the defendant to S, for the term of, &c., from thence next ensuing, upon which a yearly rent of 607. was reserved by quarterly payments on &c.; that half a year's rent was owing from S to the defendant, and that after the said rent became due, and while it was unpaid, S fraudulently removed certain goods from the demised premises to prevent the defendant distraining, and in concert with the plaintiff deposited the said goods in the said dwelling-house of the plaintiff, in which, &c., and justified entering the plaintiff's house within thirty days after the removal, for the purpose of seizing the said goods as a distress, there being no sufficient distress upon the demised premises, under 11 Geo. 2. c. 19. s. 1: -On special demurrer, it was held that the plea contained a sufficient statement of the defendant's right to distrain. Angell v. Harrison, 17 Law J. Rep. (N.S.) Q.B. 25. (5) Retention of Goods. Trespass for seizing and taking away goods. Plea, that the defendant had demised a house to the plaintiff; that rent was in arrear; that the plaintiff fraudulently removed the goods to prevent a distress, and that no sufficient distress being left, the defendant seized the goods in question. The plaintiff new assigned, that after the defendant had seized the goods, as in the plea mentioned, and after the plaintiff had paid the defendant the arrears of rent and costs of distress, and after the defendant had received the same in full satisfaction and discharge, and after the defendant ought to have restored the goods distrained, the defendant retained possession of the goods, and afterwards sold and disposed of them :-On special demurrer, held, that the new assignment did not sufficiently allege an act of trespass; that as the new assignment did not state that the acceptance of the rent took place before the impounding of the goods, it must be considered to have taken place afterwards; and that where a landlord after a lawful distress and impounding accepts the rent in arrear and costs of distress, he is not liable as a trespasser for retaining possession of the goods distrained, and selling and disposing of them. West v. Nibbs, 17 Law J. Rep. (N.s.) C.P. 150; 4 Com. B. Rep. 172. (6) Tender of Rent. A bailiff acting under a warrant of distress for arrears of rent, has an implied authority to receive the amount of the rent and costs, if tendered by the tenant; and such authority cannot be limited by a previous express instruction, given on behalf of the landlord to the bailiff, not to receive the rent, but to refer the tenant to the landlord's attorney. Hatch v. Hale, 19 Law J. Rep. (N.s.) Q.B. 289; 15 Q.B. Rep. 10. (7) Time to replevy. The five days allowed to a tenant or owner of goods by the statute 2 Will. & M. sess. 1. c. 5. s. 2. to replevy a distress for rent, are to be reckoned exclusively both of the day of distress and the day of sale. Robinson v. Waddington, 18 Law J. Rep. (N.S.) Q.B. 250. (8) For Penalty under a Demise. Replevin. Avowry, that A held land as tenant to B under a demise, subject to certain rents, provisions, conditions and stipulations, inter alia, that H should not during the continuance of the tenancy sell any hay off the premises, under the penalty of 2s. 6d. for each yard of the hay so sold, to be recovered by distress as for rent in arrear. Averment of the sale of 800 yards of hay by A, contrary to the said stipulation, by reason whereof a sum of money at 2s. 6d. per yard became due to B; nonpayment thereof; and a distress for the same. Plea, non tenuit. Verdict for the defendant and judgment under the statute 17 Car. 2. c. 7. The Court of Queen's Bench, on error, affirmed this judgment (16 Law J. Rep. (N.s.) Q.B. 25; s. c.11 Q.B. Rep. 949). On error, brought upon the judgment of the Court of Queen's Bench,-Held, by the Court of Exchequer Chamber, that the sum distrained for not being a rent service, the judgment under the statute 17 Car. 2. c. 7. was erroneous, although after verdict the avowry might have sustained a judgment for the defendant at common law. Held, also, that under these circumstances this Court had no power to give judgment for the defendant pro retorno habendo at common law, but could simply reverse the judgment of the Court below. Pollitt v. Forrest, 17 Law J. Rep. (N.S.) Q.B. 291; 11 Q.B. Rep. 962. (b) Re-entry. Where the lease provided that, on non-payment of a half-year's rent, the landlord might enter on the premises for the same until it should be fully satisfied,-Held, that the 4 Geo. 2. c. 28. did not operate to dispense with the formal demand of rent. Doe d. Darke v. Bowditch, 15 Law J. Rep. (N.S.) QB. 266; 8 Q.B. Rep. 973. The statute 1 Geo. 4. c. 87. s. 1, enabling landlords to recover possession of premises unlawfully held over by tenants, does not apply to the case of a subsisting lease, a condition of which has been broken, and a right of re-entry has accrued. Doe d. Cundey v. Sharpley, 15 Law J. Rep. (N.S.) Exch. 341; 15 Mee. & W. 558. Where land is demised subject to a condition for re-entry on default in payment of the rent, the right of re-entry does not accrue until the rent has been duly demanded. Hill v. Kempshall, 7 Com. B. Rep. 975. Goods sufficient to countervail arrears of rent are not "to be found" on the demised premises, so as to avoid the operation of the statute 4 Geo. 2. c. 28. s. 2, unless they are so visibly there that a broker going to distrain would, using reasonable diligence, find them, so as to be able to distrain them. Doe d. Haverson v. Franks, 2 Car. & K. 678. (c) Restitution of deserted Premises. The appeal allowed by the statute 11 Geo. 2. c. 19. s. 17, against an order of magistrates giving possession to a landlord, under section 16, is to the Judges of Assize, as individuals. Held, therefore, that an indictment alleging that the Judges of Assize had made an order for restitution of the premises to the tenant, was not supported by production of an order, made upon an appeal to A B and C D (the Judges), "and others their fellows, Justices," and signed by the deputy clerk of assize only. Semble, such an order should be signed by the Judges who made it. Semble, also, that it is not necessary, on such indictment, to prove the proceedings before the magistrates preliminary to the restitution, and that it is sufficient to put in the record made up by them, in which, after reciting the complaint and other proceeding, they declare that they put the complainant into possession. Regina v. Sewell, 15 Law J. Rep. (N.S.) Q.B. 49; 8 Q.B. Rep. 161. (d) Use and Occupation. [See (A) Of the Tenancy, (d) Holding over.] (E) LANDLORD'S LIABILITIES. (a) Wrongful Distress. A principal is not liable in trespass for the wrongful acts of his agent, though he receives benefit from them, unless at the time of the receipt he has notice of the illegality. Where a broker, under a warrant from the landlord authorizing him to distrain the goods and chattels of the tenant, seized a fixture, which was afterwards sold, and the proceeds paid to the landlord,-Held, that the receipt of the proceeds did not make the landlord a trespasser, it not being shewn that he was aware of the illegal seizure. Freeman v. Rosher, 18 Law J. Rep. (N.s.) Q.B. 340. The declaration in an action on the case against two defendants, complained that they wrongfully and injuriously distrained upon the plaintiff's goods for more rent than was due, and also that they afterwards wrongfully sold the same for the alleged rent and the expenses of the distress. The defendants pleaded payment into court of 1s., and no damages ultra. The jury found for the plaintiff, damages 401. There was no evidence given at the trial to connect one of the defendants with the acts complained of: -Held, that no such evidence was necessary, as by the payment into court the defendants admitted a joint wrong, not only in respect of the alleged distress, but also of the subsequent sale, which was to be considered not merely as matter of aggravation, but as an alleged substantive wrong. Held, also, that case was a proper form of action, and that it was not necessary to allege in the declaration that the wrongs complained of had been done maliciously. Leyland v. Tancred, 19 Law J. Rep. (N.S.) Q.B. 313. In case for selling goods distrained for rent, without complying with the provisions of the statute 2 Will. & M. sess. 1. c. 5, the damages are, the value of the goods distrained, less the amount of rent due. Whitworth v. Maden, 2 Car. & K. 517. A was seised in fee of nine acres of land charged with legacies, for which there was a power of distraining. A let the land to B, and the legatees assigned their legacies to C, who gave notice to B to pay the rent to him:-Held, that B was not justified in so doing upon a notice only, although he would have been under the threat of a distress. Whitmore v. Walker, 2 Car. & K. 615. (b) To double Value under 2 W. & M. c. 5. s. 4. In case upon the 2 W. & M. c. 5. s. 4. for double value, for distraining, no rent being due, the jury ought to be directed, if they find for the plaintiff, to give damages to double the amount of the value of the goods. Masters v. Harris, 1 Com. B. Rep. 715. (F) TENANT'S RIGHTS AND LIABILITIES. A debtor assigned by bill of sale all the household goods and furniture, horses, cows, &c. and all the hay, corn, and grain, as well in stock and in the barn and granary as now standing, growing, and being upon the farm, &c., and all carts, waggons, &c.," and also all the tenant right and interest yet to come and unexpired" of the debtor, in trust, to sell and pay the debt and the residue to the debtor: -Held, that away-going crops sown after the execution of the bill of sale passed under it as a tenant right yet to come. Petch v. Tutin, 15 Law J. Rep. (N.S.) Exch. 280; 15 Mee. & W. 110. A tenant who has agreed to keep and deliver up premises in good repair at the end of his term, is bound to put and keep them in good repair with reference to the class to which they belong. It is not sufficient for him to keep them in as good condition as he found them. Payne v. Haine, 16 Law J. Rep. (N.s.) Exch. 130; 16 Mee. & W. 541. Where tenant for years agrees to keep the premises in repair during the tenancy, and, before the expiration of the term, an action is brought against him for breach of this agreement, the plaintiff is entitled to recover nominal damages only. Marriott v. Cotton, 2 Car. & K. 553. (G) NOTICE TO QUIT. [Bessell v. Landsberg, 5 Law J. Dig. 376; 7 Q.B. Rep. 638.] [Doe d. Clarke v. Smarridge, 5 Law J. Dig. 376; 7 Q.B. Rep. 957.] A notice to quit, given by an agent, in the names of W and B, and also several other parties, is valid as a notice from W and B only. Doe d. Bailey v. Foster, 15 Law J. Rep. (N.s.) C.P. 263; 3 Com. B. Rep. 215. Where a tenant is entitled to six months' notice to quit, a notice to quit "at the expiration of the present year's tenancy" is sufficient, although it does not appear on the face of it that it was given six months before the period therein specified for quitting. Doe d. Gorst v. Timothy, 2 Car. & K. 351. (H) ASSIGNEE OF REVERSION. The statute 32 Hen. 8. c. 34. applies only to cases of demise by deed, and an assignee of the reversion cannot maintain assumpsit on a contract to repair made with the assignor. Where a lease contains an express contract on the part of the tenant to repair, there can be no implied contract to repair arising from the relation of landlord and tenant. A and B being entitled to copyhold premises in certain shares, B demised the whole to defendant, in his own name, by lease in writing (not under seal), for one year, at a rent payable half-yearly; and B thereby agreed for himself, his heirs, &c. and assigns with defendant that he should peaceably hold the demised premises. Before the first half-year's rent fell due, B surrendered his interest in the premises to A, of which the defendant had notice, and afterwards paid that rent to an agent employed by A and B. In assumpsit, for use and occupation, brought by A to recover the last half-year's rent,-Held, that the occupation of defendant having become in point of law an occupation by the permission of A, as soon as his interest accrued, the action was maintainable by virtue of the 11 Geo. 2. c. 19. s. 14. Admitted copies of the court roll of the manor, by which the premises purported to have been surrendered, were held sufficient evidence of their being copyhold. Standen v. Chrismas, 16 Law J. Rep. (N.S.) Q.B. 265; 10 Q.B. Rep. 135. The defendant entered into possession of certain premises as tenant under a written agreement, for a term of years, made on the 28th of March 1845, between the plaintiff and T of the one part, and the defendant of the other part, and which agreement was prevented from operating as a lease by the 7 & 8 Vict. c. 76. The agreement stipulated that the defendant would put and keep the premises in good repair and condition. On the 16th of June 1847, T assigned all his interest in the premises to the plaintiff, of which the defendant had notice, and afterwards paid the rent to the plaintiff alone:Held, that a tenancy from year to year, upon the terms of the written agreement with the plaintiff and T, was to be presumed; that after the assignment by T a new substituted agreement with the plaintiff, upon the same terms as those contained in the original agreement, might be implied; and that the plaintiff might sue alone for a breach of such implied agreement by the defendant in not repairing the premises. The repealing statute, 8 & 9 Vict. c. 106, does not apply to agreements made before October 1845, and which by the 7 & 8 Vict. c. 76 are prevented from operating as leases. Arden v. Sullivan, 19 Law J. Rep. (N.s.) Q.B. 268. LANDS CLAUSES CONSOLIDATION ACT. (B) COMPULSORY POWERS OF PURCHASE. (c) Taking part of House, Manufactory, &c. (C) NOTICE TO TAKE LANDS. (D) ASSESSMENT OF COMPENSATION. (1) Appointment of Umpire. [See (2).] |