1828.

BUNTER against WARRES

&c. as tenants to the defendant, at a yearly rent of 600%. payable quarterly on, &c. and because the rent was in arrear, defendant took the corn as a distress. Plea in bar, denying the tenancy modo et formâ, and issue joined thereon. At the trial before Hullock B., at the last assizes for the county of Somerset, the defendant gave in evidence a lease of the premises in question, bearing date the 29th September, 1818, from Mr. Warre to James and Thomas Bunter for seven years, by which a rent of 6001. payable quarterly was reserved. This lease was executed by Warre, but not by the plaintiff or Thomas Bunter. It was admitted that Warre was, at the time of the granting of the lease, seised in fee of the premises in question; and that, upon his death, on the 21st May, 1819, they descended to Miss Warre the defendant. It was proved that Thomas Bunter had paid rent in respect of the premises in question, and that the lease had been delivered to him, and some evidence was given to shew that Thomas and James Bunter were in possession at the time of the lease, and had continued in possession from that time. The Bunters paid for the lease, and an account in the handwriting of James Bunter was put in, by which he admitted half a year's rent to be due at the rate mentioned in the lease. Upon the close of the defendant's case, the plaintiff's counsel conceiving that Thomas Bunter was a party upon the record, applied to the judge to have a verdict entered for him, for the purpose of making him a witness for the plaintiff, James Bunter. The learned Judge was of opinion, that there was evidence to go to the jury to shew that Thomas Bunter and James Bunter were joint tenants, and refused the application. This application was made and refused under a mistaken notion, that Thomas Bunter was a

party

party to the record. The learned Judge in his report stated, that he did not recollect whether Thomas Bunter was offered as a witness in the further proceedings in the cause, but that he had certainly mentioned to one of the plaintiffs' counsel, that he thought Thomas Bunter was an incompetent witness, on the ground that he was interested in disproving the avowries, inasmuch as if the plaintiff failed in the action, Thomas Bunter would be liable in contribution to James Bunter for the costs, and therefore, that he was interested in the event of the cause; and the learned Judge stated in his report, that if the Court should be of opinion that Thomas Bunter was a competent witness under the circumstances, there ought to be a new trial. The plaintiff gave evidence to shew that the holding was not under a fixed pecuniary rent, but that the rent was to depend on the price of corn, and the learned Judge left that question of fact to the jury upon the evidence, and they found a verdict for the defendant. A rule nisi having been obtained in Hilary term last for a new trial, on the ground that Thomas Bunter should have been admitted as a witness.

Adam and C. F. Williams shewed cause. Thomas Bunter was not a party to the record, the question must therefore be considered as if he had been called as a witness and rejected. At the time when the witness was rejected, there was evidence to satisfy the learned Judge that the farm was in the joint occupation of the plaintiff and the witness. The avowry states such a joint occupation, and if the defendant had afterwards brought an action against the two Bunters for the money rent, this record would have been evidence against her. But even if that were not so, still the witness had a

1823.

BUNTER

against WARRE

1823.

BUNTER against WARRE.

direct interest in the event of the suit, for had the rent claimed been recovered, he would have been bound to contribute to the payment of that, and of the costs also. Goodacre v. Breame. (a) [Bayley J. You assume that the witness was jointly liable; might he not be competent to deny that on the voir dire.] As the case then stood, the witness was joint-tenant with the plaintiff, and the question as to the admissibility of a witness, must be decided upon what has been proved when he is called. Then there was a lease executed by the defendant's ancestor. The Bunters indeed had not executed, but they paid for it, kept it when sent to them, and paid rent with reference to it. The plaintiff and the witness must, therefore, be taken to have been joint-tenants. witness was also incompetent, because he came to defeat a lease adopted, though not executed by him.

R. Bayley, contrà, was stopped by the Court.

The

BAYLEY J. I think that Thomas Bunter was a competent witness, not having any direct interest in the event of the suit. It has been argued, that he had such an interest, first, because the verdict would be evidence in another action, between the defendant on one side and the plaintiff and the witness on the other; secondly, because he would be liable to contribute to the costs, if a verdict was found for the defendant. There might, also, have been a question, whether it would not have been for the benefit of Thomas to prevent à return of the goods being made, but no evidence was given to prove them joint property; if they had been, the defendant might

(a) Peake N. P. C. 174.

have put an end to the action by plea in abatement. The judgment in this case, whichever way it was given, could not be évidence in any other proceeding, for or against Thomas, as to the point decided, which was a question of tenure. In order to make a record evidence, the parties must be the same, or must be privies in estate, as heirs or devisees, or in character, as personal representatives. In either case the claim must be under a party to the record, or it will not be evidence; it would otherwise bind where there has been no opportunity of cross-examining the witnesses, either by the party to the subsequent cause, or by the person under whom he claims, which would be contrary to the well known rule upon this point. Secondly, it does not appear that Thomas would have been liable to contribution for the rent or costs, if the defendant had recovered in this action. As to the costs, it is sufficient to observe, that for any thing that appears, the plaintiff brought the action wrongfully. But it is said that the sum recovered by the defendant would have been a measure for contribution to be made by Thomas. That assumes that he was so connected with the plaintiff as to be liable for the rent. If that had appeared on the voir dire, it would have been difficult to shew that Thomas was competent; some evidence was given to raise that inference, but Thomas, if examined on the voir dire, might have rebutted it; and that is the constant course of proceeding. There was nothing to prevent him from explaining on the coir dire all that had before been proved. Then, as to his incompetency to contradict the lease, that would have been a sufficient objection if he had acted under it; but the evidence for the defendant does not prove that, for although the farm was occu

1823.

BUNTER against WARRE

1829/

BENTER

-against WARRE

pied, and the rent paid, yet Thomas always refused to sign the lease. If examined on the voir dire he might have explained that the payment of rent was made on behalf of his father. Upon the whole, I think that no such interest was proved as rendered Thomas inadmissible, and that as his eivdence was improperly rejected, there must be a new trial.

HOLROYD and BEST JS. concurred.

Rule absolute.

Covenant by the reversioner against the assignee of the

grantee. Dethat A. and B.

claration stated

did grant licence for a

term of years

to C. to con

open through

The Earl of PORTMORE against Bunn.

COVENANT. The declaration stated, that, by a cer

tain indenture, bearing date the 19th day of June, 1798, made between Charles, Earl of Portmore, and one Bennett Langton, (since deceased) of the one part, and Alexander Raby of the other part, the said earl and B.

Langton did give and grant licence unto A. Raby to continue a channel tinue one channel, opening, way, or passage through the west bank or side of the river Wey, near Coxe's lock, seventy-eight feet wide, upon condition that Raby would repair, to the satisfaction of the said earl and B. Langton,

the bank of a navigation, in order that the

waste water

might pass through the

channel to the mills of C., the latter paying a certain annual sum therein mentioned. Breach, nonpayment of that annual sum. Semble, That upon the face of the declaration 4. and B. must be considered as having the sole ownership of the navigation, and the sole power of granting this privilege; and, in that case, that the deed would operate as the grant of an interest in an hereditament, and that the assignee of the grantee would be liable to an action by the reversioner within the statute 32 Hen. 8. By the deed produced in evidence, A. and B. were described as persons having the greatest proportion or share in the profits of the navigation: Held, that by this deed it appeared, that the grantors had not the power of granting the privilege of which the deed as set out in the declaration purported to be a grant, and therefore that there was a variance.

Held, also, that the deed shewed that the assignee of the grantee was not bound by the covenants, inasmuch as it appeared that the grantors had not any legal or equitable estate in the real hereditament which the deed set out in the declaration purported to grant.