1860. TUTTON v. DARKE. which remain to be considered (a). In Tutton v. Darke the rule will be absolute to enter the verdict for the plaintiff for 151. Rule accordingly. NIXON v. FREEMAN. (a) No judgment was given on those points, the case having been compromised. A April 17. declaration in debt on a demise, for rent, stated LORD WARD V. LUMLEY. THIS was an action of debt on a demise, for three quarters' rent due on the 21st June, 1858. The declaration fully appears in the report of the case, ante, p. 87. In addition to the plea demurred to, the defendant pleaded that the plaintiff did not, by deed, let or demise the premises to that the plain the defendant: upon which issue was joined. that the plain tiff by deed demised to defendant certain premises. Plea: tiff did not by deed demise the premises. Since the rent became due the deed was cancelled by the mutual con. sent of both parties.- Held, that the cancelled deed was evidence in proof of the issue. At the trial before Pollock, C. B., at the Middlesex Sittings after last Hilary Term, the plaintiff produced the lease with the seals torn off; and it appeared that it was cancelled on the 10th August, 1859, with the mutual consent of both plaintiff and defendant. On the part of the defendant it was submitted that the deed, being void, was not evidence in support of the issue. The learned Judge overruled the objection, and directed a verdict for the 37th section of plaintiff, reserving leave to the defendant to move to enter the verdict for him. Under the the Common Law Procedure Act, 1854, the Court may allow an appeal though no Edward James now moved for a rule nisi accordingly.— notice has been The plaintiff was bound to prove a demise by deed, but given and the application is the instrument produced, having the seals torn off, was void: Com. Dig. tit. "Fait" (F. 2), Pigot's Case (a), and not made, until after the ex piration of four days from therefore no evidence in support of the issue. [Pollock, C. B. the time of the decision complained of.. (a) 11 Rep. 27 a. The rent was due before the deed was cancelled; then how does the cancellation affect the plaintiff's right to recover it?] The declaration alleges a demise by deed, the plea traverses that allegation, and, in order to prove the issue, it was necessary for the plaintiff to produce a valid deed. [Bramwell, B.-In debt for rent it is not necessary to state that the demise was by deed.] Here the plaintiff has taken issue on that fact. [Pollock, C. B.-The document was given in evidence, not for the purpose of proving its existence as a deed, but only that it was a deed at the time the rent became due. The point is in effect the same as that decided in Lord Ward v. Lumley (a). Martin, B.All that the parties were trying was, whether upon a certain day an estate existed in the defendant.] The production of a void deed is no more than the production of a piece of waste parchment. The deed being gone, the right to sue upon it is at an end: Davidson v. Cooper (b). POLLOCK, C. B.-We all consider that the arguments fore be no rule. MARTIN, B.-I am of the same opinion. The declaration states that the plaintiff by deed demised to the defendant certain premises; the plea alleges that he did not by deed demise, and it was proved that he did. This is a declaration on the demise, not upon the deed; and the duty and liability to pay the rent is created by the estate vested in the lessee upon the execution of the deed. It is immaterial what becomes of the deed, for its cancellation does not (a) Antè, p. 87. (b) 11 M. & W. 778. In error, 13 M. & W. 843. 1860. LORD WARD v. LUMLEY. 1860. LORD WARD v. LUMLEY. destroy the estate already vested. We so held in Lord Ward v. Lumley, and that case governs this. BRAMWELL, B.-I also think that there ought to be no rule, and I am of that opinion not only on the authority of Lord Ward v. Lumley, but upon principle. It is clear that an estate already vested is not destroyed by the cancellation of the deed which created it. It is equally clear that, no action of covenant will lie on a cancelled deed, but here the question is whether debt upon the demise can be maintained. I am of opinion that it can. In debt on a demise, the declaration need not state how it was made. In 1 Wms. Saund. p. 276 a, it is said "In debt for rent on a demise by indenture, it is not necessary to declare that it was by indenture; but 'quod cum dimississet' generally is sufficient." Again, at p. 276, d, "The general rule is, that wherever an action is founded on a deed, the deed must be declared on. The only case excepted from the general rule is that of debt for rent, in which the deed need not be declared on. That exception however, seems to have proceeded on the ground that, by the demise, an interest has passed in the land: Per Mansfield, C. J., 1 N. R. 109, Atty v. Parish. In other words, that the action is founded on the privity of estate and not of contract." Therefore, if the action is founded on the privity of estate it is immaterial that the deed is not in existence, for so long as the estate remains an action of debt on the demise is maintainable. Here it is true that in one sense no deed was produced; but the allegation in the declaration was proved, because it was proved that an estate was created by the deed. WILDE, B.-The question is whether this issue was proved by producing a cancelled deed. I am of opinion that such a deed was capable of being used in evidence for the purpose of proving that an estate vested in the defendant. That appears from the case of The Agricultural Insurance Company v. Fitzgerald (a), where the question was whether the Company's deed of settlement, which had been altered since its execution, was available for the purpose of proving that the defendant was a shareholder. Lord Campbell, C. J., in delivering the judgment of the Court, said: "There is no ground for saying that if a deed be altered in a material part it is rendered void from the beginning. It ceases to have any new operation; and no action can be brought in respect of any pending obligation which would have arisen from it had it remained entire; but it may still be given in evidence to prove a right or title created by its having been executed, or to prove any collateral fact." That being so, it was competent for the plaintiff to give this cancelled deed in evidence for the purpose of proving that the estate vested in the defendant. Rule refused. 1860. LORD WARD v. LUMLEY. Maude, in Trinity Term (May 23), had obtained a rule calling on the plaintiff to shew cause why the defendant should not be at liberty to appeal. It appeared that, through inadvertence, notice in writing had not been given within four days, and that since the decision the defendant had gone abroad, leaving no property available to satisfy execution. (a) 16 Q. B. 432. 1860. LORD WARD v. LUMLEY. Mellish shewed cause (June 3).-The question turns upon the 37th section of the Common Law Procedure Act, 1854, which enacts that no "appeal shall be allowed unless notice thereof be given in writing to the opposite party or his attorney, and to one of the Masters of the Court, within four days after the decision complained of, or such further time as may be allowed by the Court or a Judge." The further time must be obtained within the four days. According to the ordinary practice in cases of arbitration, where an award is to be made on or before a certain day, or such further day as the arbitrator may enlarge the time for making his award, it has always been held that the arbitrator must enlarge the time before the expiration of the day first named. So, in cases of motions for new trials, some step must be taken within the four days. The words "further time" imply that there is to be no interval. Maude, in support of the rule.-An arbitrator has no power to act except within the period limited, which distinguishes that case from the present. The effect of this clause is, that notice of appeal shall be given within four days, and if not, the Court shall have a discretionary power as to allowing it to be afterwards given. [Bramwell, B.-The rule to extend the time would be a rule nisi, which could not be made absolute within the four days.] BRAMWELL, B.-We are all of opinion that the Court has power to extend the time for giving notice of appeal, though the application is not made within four days. Mr. Mellish seeks to put a restriction on the power of the Court which is not found in the statute, and suggests that it is analogous to the power to extend the time for making an award. Mr. Maude has given the true answer to that objection. His client had a right to appeal, which he |