1850. SMITH t'. LOVELL. The defendant pleaded, amongst other pleas, sixthly, -as to so much of the first count as related to the sum of 841, part and parcel of the said sum of 1267. of the rent in the said first count mentioned, and therein alleged to have become due and payable from the plain- Sixth plea. tiffs to the said W. J. Heale,-that, after the making of the said agreement in the said first count mentioned, and before any part of the said sum of 841. of the rent in the said first count mentioned, accrued or became payable from the plaintiffs to the said W. J. Heale, and whilst the defendant held and enjoyed the said chambers, with the appurtenances, as tenant thereof to the plaintiffs, as in the said first count mentioned, and before the 24th of June, 1848, and before the commencement of this suit, to wit, on the 12th of June, 1848, all the estate, term, and interest, and the tenancy of the defendant in the said chambers, with the appurtenances, were duly surrendered by the defendant to the plaintiffs by act and operation of law, that is to say, by the defendant's then quitting possession of the said chambers, with the appurtenances, by the consent of the plaintiff H. T. Coles, and by the defendant's then delivering up the keys of the outer and other doors of the said chambers to the plaintiff H. T. Coles, and by the defendant's then relinquishing and giving up the possession and enjoyment of the said chambers to the plaintiff H. T. Coles, with the intention of putting an end to the said tenancy in the said first count mentioned, and by the plaintiff H. T. Coles's then accepting the said keys of the outer and other doors of the said chambers, and such possession and enjoyment of the said chambers, with the appurtenances, with the intention of putting an end to the said tenancy in the said first count mentioned; that he, the defendant, has not from thence forward held or enjoyed, or had any further use or occupation of the said chambers, or any part thereof; 1850. SMITH V. LOVELL. Replication to the sixth plea. and that the plaintiff H. T. Coles, in giving such licence, and in accepting the said keys and such possession of the said chambers, acted for and on behalf of himself and the said other plaintiff, C. Smith, with the authority of the plaintiff C. Smith; and that the plaintiff H. T. Coles, from thence until and upon the said 25th of March, 1849, had been in the actual possession, occupation, use, and enjoyment, with the assent of the plaintiff C. Smith, of the said chambers, with the appurtenances: verification. Replication to the sixth plea,-that the defendant of his own wrong quitted the possession and occupation of the said chambers, with the appurtenances, because the plaintiffs said, that, on a certain day, to wit, on the 5th of December, 1846, it was agreed between the plaintiffs and the defendants, in consideration that the defendant would become tenant of the said chambers to the plaintiffs, and indemnify and save them harmless in respect of the rent thereof, in manner and form as in the first count of the declaration mentioned, that, in case the plaintiffs should give notice to the defendant to terminate that agreement, and the defendant should be desirous of continuing his occupation of the premises as tenant to the said W. J. Heale or his assigns, then and in such case that the plaintiffs should not either jointly or severally, occupy the said premises, or interfere to prevent any arrangement which the defendant might be desirous of making for continuing his occupation of the said premises under the said W. J. Heale or his assigns; that the plaintiffs had been always ready and willing, and still were ready and willing, to permit and suffer the defendant to continue the occupation of the said chambers under the said W. J. Heale, and that they did not interfere to prevent the defendant from entering into any arrangement with the said W. J. Heale as therein mentioned; that after wards, to wit, on the 24th of March, 1848, the plaintiffs received the keys of the outer and other doors of the said chambers from the defendant, and afterwards took possession thereof, at the request of the defendant, to the intent that they might be able to let the said chambers for the benefit of the defendant, and that they refused to receive the keys of the outer and other doors of the said chambers from the defendant, except on the terms that the defendant should not be released from his liability in respect thereof, and that the keys of the outer and other doors of the said chambers, and the possession of the said chambers, were received by the plaintiffs from the defendant on no other terms or conditions than on the terms that the defendant should not be released from his liability under the agreement in the first count of the declaration mentioned or referred to;-without this that all the estate, term, and interest, and the tenancy of the defendant in the said chambers, with the appurtenances, were duly surrendered by act and operation of law, in manner and form as in that plea alleged. 1850. SMITH V. LOVELL. Special demurrer, assigning for cause (amongst Special others) that the inducement was inconsistent and in demurrer congruous with the traverse. thereto. Seventh plea, as to so much of the said first count Seventh plea. of the declaration as relates to the sum of 847., parcel of the said sum of 1261. of the rent in the said first count mentioned, and therein alleged to have become due and payable from the plaintiffs to the said W. J. Heale,-that, before the said sum of 847., parcel of the said rent in the first count mentioned accrued or became due from the plaintiffs to the said W. J. Heale, and before the 24th of June, 1848, to wit, on the 12th of June, 1848, it was agreed by and between the plaintiff H. T. Coles, for and on behalf of himself and the said other plaintiff, C. Smith, and with his authority, that 1850. SMITH V. LOVELL. Replication to the seventh plea. the defendant should quit and deliver up to the plaintiff H. T. Coles, and that the plaintiff H. T. Coles, for and on behalf of himself and the said other plaintiff, C. Smith, should take possession of the said chambers, with the appurtenances, before the said 24th of June, 1848, to wit, on the 12th of June, 1848, and that, in consideration thereof, the defendant should be discharged from all liability to pay any further rent or other compensation which would otherwise become due for the holding, occupying, or enjoying the said chambers, with the appurtenances; that, in pursuance of the said agreement, he, the defendant, afterwards, to wit, on the said 12th of June, 1848, being before the said 24th of June, 1848, and before the commencement of this suit, did quit and deliver up possession of the said chambers, with the appurtenances, to the plaintiff H. T. Coles, and the plaintiff H. T. Coles, for and on behalf of himself and the said other plaintiff, C. Smith, and with his authority, then accepted such possession, in pursuance and on the terms of the agreement in this plea mentioned, and in discharge of the liability of the defendant to pay any more or further rent or compensation for the said chambers, with the appurtenances; and that the plaintiff, H. T. Coles, then, with the authority of the said other plaintiff, C. Smith, then entered into and upon the said chambers, with the appurtenances, and thenceforth continually had remained and was in possession thereof, and the defendant had not, since he so quitted and gave up possession of the same, held, used, or enjoyed the same; verification. Replication, that it was not agreed by and between the plaintiff H. T. Coles, for and on behalf of himself and the plaintiff C. Smith, and the defendant, that the defendant should be discharged from all liability to pay any further rent or other compensation which should become due in respect of the said chambers, with the appurtenances, nor was possession accepted of the said chambers, with the appurtenances, in pursuance of the alleged agreement in that plea mentioned, in discharge of the defendant's liability to pay any more rent or compensation for the said chambers, with the appurtenances, in manner and form as in that plea alleged ; concluding to the country. 1850. SMITH บ. LOVELL. thereto. Special demurrer, assigning for cause (amongst Special others) that it was double and multifarious, inasmuch demurrer as the plaintiffs had denied not only the agreement alleged, but also the acceptance of the possession of the chambers in pursuance thereof. Eighth plea, as to the sum of 847., parcel of the Eighth plea. said sum of 1267. of the rent in the said first count men- Replication, -that the plaintiff H. T. Coles did not Replication to eighth plea. |