1869 POOLE V. WILLATS. reserving the rights of creditors against sureties. If the plaintiff had executed or assented to the deed, he would have discharged the drawers of the bill. In Johnson v. Barratt (1), it was decided that a deed which had no clause reserving rights against sureties was good, unless it was shewn that there were creditors secured by sureties. Here the replication shews that the plaintiff was a creditor who had a right against the drawers as sureties. The question, therefore, is, whether the assent of the sureties to the deed is equivalent to the deed containing a clause reserving the creditors' rights. The deed being bad in its inception, it cannot be made good by matter subsequent; the assent of the sureties, therefore, is of no effect: Oldis v. Armston. (2) Cur, adv. vult. July 3. The judgment of the Court (Cockburn, C.J., Lush, Hannen, and Hayes, JJ.) was delivered by LUSH, J. This is an action by an indorsee against the acceptor of a bill of exchange, to which the defendant pleaded a composition deed registered under the statute. The deed, which was set out in the plea, contained no reservation of rights against sureties. The plaintiff replied that the bill was accepted for value, and indorsed to him for value, and that, if he had assented to the deed, he would have discharged the drawers. To this there was a rejoinder, alleging that before the registration of the deed the drawers consented to the plaintiff executing and becoming bound by the deed. Issue was joined upon this allegation, and found in favour of the defendant. The plaintiff then moved for, and obtained, a rule for judgment non obstante veredicto, which was supported on the ground, that as the deed did not reserve his right against the drawers, the plaintiff was not on equal terms with the other creditors, and that the consent of the sureties to the composition did not remove the inequality. We think this argument cannot prevail. It has been held that a composition deed is not necessarily invalid for not containing a reservation of rights against sureties, because it cannot be assumed that there are any creditors with sureties: Johnson v. Barratt. (1) (1) Law Rep. 1 Ex. 65. (2) Law Rep. 2 Ex. 406. That is a fact which must be shewn by averment. Here the fact that the plaintiff was such a creditor is shewn by the replication; and, were it not for the rejoinder, that would vitiate the deed: because, if he had executed it without the consent of the drawers of the bill, he would have discharged them, and would thus have been in a worse position than the other creditors, who must be supposed to have had no remedy over for the balance of their debts. But the rejoinder, we think, removes this objection, and leaves the deed as it would have been if this fact had not appeared. A deed under the statute has no operation against non-assenting creditors until it is registered. If at that date the plaintiff would have been unable to have come in with the rest of the creditors without forfeiting his security, he would not have been bound by the deed, and no subsequent act or assent would have bound him. But as at that period the drawers' consent had been given, and the plaintiff might have come in for the composition, and have held them liable for the balance; he was in precisely the same position as if the right to have recourse to the drawers had been reserved to him in the deed. The case of Oldis v. Armston (1) is the converse of the present case. There the deed in terms bound the creditors to indemnify the debtor against any bills or notes he might have given them on account of their debts, and was therefore bad on the face of it; and the Court held that it was not made good by an averment that at the time of registration there was no creditor to whom any bills or notes had been given, other than those who had assented to the deed; for creditors were not bound to look beyond the deed, and the deed being bad on the face of it, no averment could make it good. In this case the deed is good on the face of it. We cannot assume that there were any creditors with sureties other than the plaintiff; and as the extrinsic fact which would have vitiated the deed as regards him is met by the rejoinder, and the primâ facie inequality removed, we think he is bound. We therefore discharge the rule. Attorneys for plaintiff: D. & S. Woolff. Attorney for defendant: J. Croft. (1) Law Rep. 2 Ex. 406. Rule discharged. 1869 POOLE v. WILLATS. WEST v. DOBB. Landlord and Tenant-Covenant not to assign without Licence. The plaintiff demised premises in 1860 to T. and P. for fourteen years. The lease contained a covenant by the lessees (not expressed to be on behalf of their assigns), not to assign or part with the possession of the premises without the written consent of the landlord; with a clause of re-entry in case of breach. By a letter of the 25th of March, 1865, the plaintiff assented to a transfer of the lease by the lessees to W. on the same terms as they held it. W., who had purchased the term from them, entered into possession without any formal assignment of the term. W. continued in possession, paying rent, until 1867, when by the written licence of the plaintiff he assigned all his interest in the lease to trustees for his creditors. The trustees sold the lease to the defendant, and he entered into possession. On ejectment for a forfeiture by breach of the covenant not to assign without licence : Held, that there had been no forfeiture; that it was unnecessary to decide whether the covenant would have bound assigns though not named, as there never was any assignee of the whole term, so as to be subject to the covenants in the lease. That the parting with possession by the original lessees to W. without a complete transfer was not a forfeiture: as the licence of the 25th of March, 1865, did not in terms forbid such a parting with possession; and that the possession by the cestui que trusts and the subsequent dealing with the property by them could not be considered the acts of the original lessees, and a breach of covenant by them. EJECTMENT for two farms in the parish of Kenwyn. The defendant defended for the whole. At the trial before Blackburn, J., at the Cornwall Spring Assizes, 1868, it appeared that the plaintiff, being owner in fee, granted a lease of the farms in question on the 29th of September, 1860, to Messrs. Tedder and Pridham, for fourteen years from Midsummer, 1860, at a rent of 1007. per annum. The lessees executed a counterpart, in which there were joint and several covenants by the lessees for themselves and himself, their and his heirs, executors and administrators (not mentioning assigns), “that they, the lessees, their executors or administrators (inter alia) should not nor would underlet, assign, or otherwise part with the possession of the said demised premises or any part thereof without the written consent of the lessor, his heirs, or assigns, being first had and obtained for that purpose." There was a clause of re-entry in case the lessees, their executors, or administrators, should fail in the observance or performance of any of the covenants on their part. Tedder and Pridham entered and paid rent; and in 1865, after negotiations between them, one Wade, and the plaintiff, the plaintiff wrote the following letter to Wade: "25th March, 1865. "According to the understanding I had with you and Messrs. Tedder and Pridham, on Thursday last, I beg to say that I consent for you to take the two estates that Messrs. Tedder and Pridham have been renting of me, on the same conditions and in accordance with their lease. This will be sufficient authority for Messrs. Tedder and Pridham to transfer the lease to you on their paying 757., being for three-quarters year's rent due this day. “P.S.—It will be necessary for you to write me accepting these terms." Mr. Wade wrote in answer: "Your favour to hand, granting permission to hold your farms on the same terms as Messrs. Tedder and Pridham; I am obliged for the preference, Mr. Tedder has handed me the lease, and Wade paid Tedder and Pridham for the assignment, but no formal assignment was executed. Wade entered into and continued in possession, paying rent to the plaintiff, until 1867, when he got into difficulties, and negotiations were set on foot to assign all his property to Messrs. Chirgwin and Hamilton, for the benefit of his creditors. On the 21st of January, 1867, the solicitors acting for Wade and for some of his principal creditors wrote to the plaintiff, saying, "by the lease granted by you to Messrs. Tedder and Pridham, of &c., the lessees cannot underlet without your written consent," and asking the plaintiff, "to be kind enough to give your written consent to the lease being vested in Messrs. Chirgwin and Hamilton, as you did when Mr. Wade took possession." The plaintiff wrote in answer on the 31st of January, 1867 :— "I have no objection to consent to the trustees, Messrs. Chirgwin and Hamilton, acting for Mr. Wade, in respect of the two small farms, to vest the same in their hands, similar to the transfer I allowed Mr. Wade from Messrs. Tedder and Pridham." On the 27th of February, 1867, Wade executed an assignment of all bis estate and effects, including "all the premises held under 1869 WEST v. DOBB. the lease of the 29th of September, 1860, granted by William West to Tedder and Pridham, and now vested in Wade," to Messrs. Chirgwin and Hamilton, upon trust for the benefit of his creditors. The trustees paid rent to the plaintiff; and in November, 1867, the trustees signed an agreement with the defendant for the sale to her, inter alia, of the lease of the two farms; and the defendant, thereupon, took possession of the farms. The learned judge, on these facts, held that no forfeiture was shewn, and nonsuited the plaintiff, giving him leave to move to enter a verdict. A rule having been obtained accordingly Jan. 13. Pinder shewed cause. Kingdon, Q.C., and Charles, supported the rule. The arguments sufficiently appear from the judgment: the cases cited are given in a note, post, p. 637. Cur, adv. vult. May 31. The judgment of the Court (Cockburn, C.J., Blackburn, and Mellor, JJ.), was delivered by BLACKBURN, J. This was an action of ejectment tried before Blackburn, J., during the Spring Assizes, 1868, at Bodmin. It appeared on the trial that the plaintiff had in 1860 demised the premises in question for fourteen years to Tedder and Pridham. This lease contained various covenants made by the lessees, not expressed to be on behalf of their assigns; and, amongst others, a covenant not to assign or part with the possession of the demised premises without the written assent of the landlord. And there was a clause of re-entry in case of the breach of any of the covenants. As the term had not expired by efflux of time, the question at the trial was whether it had been forfeited or not. The facts were not disputed. The plaintiff, by a letter dated the 25th of March, 1865, assented to a transfer of the lease by Tedder and Pridham, to one Wade, on the same terms as those on which they held it. Wade, who had purchased the term from them, entered into possession without having any formal assignment of the term. Wade continued in possession, paying rent, until 1867, when by |