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1812.

LUMLEY against HODGSON.

owed no rent, having paid M. Hutton all the rent due at the preceding half-year. That he afterwards informed M. Hutton of the applications made by Wilkinson and by Hull, when Hutton insisted that the deponent should pay his rent to no other person than himself; in consequence of which the deponent continued to pay his rent as it became due to M. Hutton down to and including the 13th of May 1810, when he quitted the premises and ceased to be tenant. That some time in the summer of 1809 he went to Lumley's house, in Bishopswearmouth, by appointment, where he was introduced to Lumley and Raisbeck; and Wilkinson then inquired of him whether he meant to pay the rent for the premises to him (Wil kinson;) to which the deponent replied that it made no difference to him to whom he paid his rent provided he was made safe in doing so: and he then informed Lumley, Raisbeck, and Wilkinson of the directions he had received from Hutton not to pay the rent to any other person than to him (Hutton). That a notice to quit on the 13th of May 1809, dated the 31st of October 1808, was given to him by Wilkinson, upon the receipt of which he consulted with Hutton, who then directed and insisted that the deponent should not pay any attention to it; for that Wilkinson had no right to give any such notice. That the deponent never considered himself as the tenant of Wilkinson, nor ever paid him any rent in respect of the premises. That after the receipt of the notice to quit, in 1808, Hutton informed the deponent that he had made a transfer of the premises to the house at Stockton, meaning, as the deponent understood, Wilkinson, Snowden, and Lumley, as a guarantie or security for any balance which Hutton, on the settling of

his

1812. his accounts with the house, might owe them; and

Hutton then and at other times informed the deponent LUMLEY against

that if a proper allowance were made to him from the Hodgson. house, as their agent, he should not owe them any

thing

In addition to this the steward of the manor court of Houghton produced an admission of the plaintiffs on the 13th of August 1807, to the premises in question, upon the surrender of Robert and Michael Hutton; which admission was stated to be upon such trusts as Robert Wilkinson who had purchased the premises should direct, and on default of appointment, and in the mean time, in trust for Wilkinson and his heirs. It was then contended for the plaintiffs, that the rent followed the reversion; and that as the defendant had notice of their title before he paid the rent to M. Hutton, he was answerable for it to the plaintiffs. - To this it was objected for the defendant, that he had no notice of the title of the plaintiffs on the record, whatever notice he might have had of Wilkinson's title, as it appeared upon his answer: the demands for rent having either been made by Wilkinson, as for himself, or by a clerk for the banking-house, consisting of Wilkinson, Snowden, and Lumley; and that the stat. 4 & 5 Ann. c. 16. s. 9 & 10., which makes grants and conveyances good without attornment of the tenants, provides that no such tenant shall be prejudiced or damaged by payment of any rent to any such grantor or conusor, before notice shall be given to him of such grant by the comusee or grantee.

The learned judge was of opinion that this was not sufficient notice of the title of these plaintiffs, and thereupon directed a nonsuit. This was moved in the last term to be set aside, on the ground

that

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1812.

that notice of the title of Wilkinson, the cestui que trust, was sufficient to enable his trustees, who held the legal title on his behalf, to sue the defendant as their tenant, without attornment.

LUMLEY

against Hodgson.

Topping and Hullock shewed cause. Before the stat. 4 Ann. c. 16. s. 9. no action for use and occupation could have been maintained against the tenant of the land, without an attornment; and though that act dispenses with the attornment after a conveyance, yet it provides (s. 10.) that the tenant shall not be prejudiced by payment of his rent to the original landlord before notice of the title of the grantee or

Now that must mean notice of the legal title, which alone is capable of being enforced at law; notice of the title of the plaintiffs on the record; a notice therefore by Wilkinson, who was only the cestui que trust, does not satisfy the statute; and was no notice of the title of the plaintiffs.

conusee.

Holroyd, contrà, contended that notice of the title of the beneficial owner of the land was sufficient, after which the tenant paid over the rent to his original landlord at his peril. This was a mere contrivance between the defendant and his first landlord to deprive Wilkinson of his rent. If after such notice of Wilkinson's title, in the presence of the trustees, the defendant had paid his rent to Wilkinson, it would have been good against the trustees : as in Gree y. Nolle (a), the entry of the cestui que trust was held sufficient to avoid the statute of limitations. [Bayley, J.

(Bayley, J. The entry of an agent would be suf

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1812.

LUMLEY against Hodgson.

ficient; and they considered the cestui que trust as an agent.]

Here the tenant had notice of everything which the act intended he should have, to guard against surprise ; but he disregarded the warning, and wrongfully paid over the rent, as before, to his original landlord.

Lord ELLENBOROUGH, C. J. On consideration of the words of the statute, I think that the tenant, after the notice he received, should have withheld the payment of his rent to the original landlord, and paid it over either to the cestui que trust or to his trustees. The statute says that no attornment in these cases shall be necessary; but it provides that the tenant shall not be prejudiced before notice given to him of the new grant or conusance made to the grantee or conusee. Then has such notice been given in this case? tainly had notice, in the presence of the trustees, that the cestui que trust had a good title ; and if after that he had paid the rent to him, such payment would have been good against the plaintiffs on the record, who are his trustees, and the inconvenience meant to be guarded against by the statute would have been obviated.

He cer

GROSE, J. The defendant had notice enough to put him upon his guard; after which he paid the rent at his peril to the original landlord.

LE BLANC, J. The proviso was only introduced into the statute in order to prevent the tenant from being drawn in to pay rent to the original landlord before notice : but here he had previous notice of the title of

the

1812.

the cestui que trust, after which it was his duty to have seen to whom the surrender had been made.

LUMLEY

against HODGSON.

BAYLEY, J. The statute enables the action for use and occupation to be brought without attornment of the tenant; but it provides that the tenant shall not be prejudiced by paying his rent over to the old landlord without notice given to him of the title of the grantee or conusee ; but in order to bring him within that protection he must have made the payment without notice that the old landlord had conveyed away his estate; for after notice of such a conveyance, which the defendant received, it is a fraud to continue paying his rent to the old landlord.

Rule absolute,

Forster and Others against JURDISON and Kim

Saturday,
June 6th.

BERLEY.

TH

THIS was an action upon a bill of exchange for 501., The holders of dated the 16th June 1810, drawn by the defendants change having

a bill of exon J. Losh, payable at two months after date to the presented it for

payment to the order of the defendants; which was accepted by Losh, acceptor with

out effect, gave and indorsed by the defendants to the plaintiffs,' who regular notice presented it for payment on the 18th of August, which of the dishonour

who lived at

a distance, but informed them at the same time, that having reason to believe that a friend of the acceptor's would take it up in a few days, they would, in order to save expense, hold the bill till the latter end of the week, unless they heard from the drawers to the contrary : held that such notice gave the holders a remedy upon the bill against the drawers, though no further notice of non-payment was given to them at the end of the week : but if the construction of the letter bound the plaintiff's to give such further notice at the end of the week, they were only answerable for the neglect in their implied character of agents for the drawers, which they had taken upon themselves without disturbing their remedy upon the bill itself.

was

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