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1812.

DOE, Lessee of BR IERLY,

against PALMER.

person notice to quit does not operate to create a tenancy in him. [Lord Ellenborough, C. J. It does not necessarily do so, but it is generally considered as an acknowledgment of a subsisting tenancy : and if the party obey the notice, how can he be deemed a trespasser, on account of a prior notice to another person? Nothing appears to shew that the defendant had knowledge of any other notice to quit than the one which was served upon him. Bayley, J. The second notice gives the defendant to understand that if he quit at Michaelmas 1811, he will not be considered as a trespasser.] As to the second notice, he argued that unless some act expressive of the defendant's intention to give up the tithes at Old Michaelmas 1811 were proved to have been done by him, it was impossible for the lessor of the tithes to know whether the defendant had given up the possession or not till the succeeding harvest; and no recovery could be had in ejectment till half a year more after that time. (Bayley, J. If a demand were made of the lessee after the expiration of the notice whether he meant to give up the tithes, and he were silent, that would be evidence for the jury that he did not mean to give them up. Lord Ellenborough,C.J. There could be no delivery up in fact of the subjectmatter, but at most only a symbolical delivery, or a declaration of the lessee to that effect. Where the lessee's intention however is doubtful, the lessor always has it in his power to bring it to the test, by demanding of the other whether he means to give them up: and if he be silent, the inference would be that he did not mean to do so.] He then observed that in fact the defendant was not the tenant in possession who was served with the notice of declaration, but had come in, upon the rule of court, to defend as landlord. The notice of declaration

was

1812.

was in fact served upon the farmers of the defendant's own estate. His defending therefore under that rule was evidence of his claiming to continue in possession.

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Lord ELLENBOROUGH, C. J. The rule of court by which the defendant was permitted to come in and defend, not having been given in evidence at the trial, could not be taken notice of; and as it is not to be presumed that the defendant meant to hold over without some evidence of it, we cannot set aside the nonsuit except upon payment of costs. But I am inclined to think that the plaintiff's case would have been made out, if that rule had been proved.

BAYLEY, J. It would be better for the plaintiff to have the rule of Court ready to be proved at the next trial, if he should be obliged to go to trial again; as that may be evidence that the defendant considered his right to the tithes as continuing after the expiration of the notice to quit. But it would be as well if in the mean time the plaintiff applied to the defendant to know if he meant to hold over. Per Curiam,

Rule absolute on payment

of costs.

MITCHELL

1812.

Friday, June 5th.

MITCHELL against STAVELEY. To debt on bond, condi.

THE plaintiff declared in debt on a bond, dated 10th

THI tioned to per

of July 1804, in the penal sum of 40001., which form an award, bond was alleged in one count to be lost by accident, under a reference of all mat- and in another, to be in the possession of the defendant, ters in difference between and therefore could not be proffered to the Court by the the parties, it is a good plea in plaintiff; and also for goods sold and delivered, work and bar that at the labour, and

upon

the time of the sub

money counts. The defendant mission certain took several issues to the country, and then pleaded, negotiable bills of exchange, 4thly, As to the first count, that the bond was given drawn by the defendant and

with a condition, purporting that all matters in difference accepted by the between the parties were referred to the award of W. C. then outstand and J. C., arbitrators; and to be void if the defendant ing, and that an indemnity

performed the award of the said arbitrators, of and conof the defend cerning the premises; so as it was made in writing and such bills was a

was a ready to be delivered to the parties on or before the 10th matter in dif. ference be of August 1804: and then the defendant averred that no tween the parties, which was

award was made of and concerning the premises aforesaid, notified to the arbitrators be. according to the said condition. To this plea the plainfore the award tiff replied an award made on the 14th of July 1804, in made, and that they made no manner and form as set forth in the 5th plea; of which award concernin.git: and that the defendant then had notice; and that on the 1st of some of the bills bad not

November 1808 an instalment of 501., part of the 15001. been paid by

awarded, became due and in arrear from the defendant the plaintiff, and the defend- to the plaintiff; the instalments before then due having ant was still liable to the

been paid and satisfied to the plaintiff by the defendant. holders: though it appeared by the award set forth that the arbitrators stated therein that they had heard the allegations of the parties, and examined all the accounts, bills of exchange, &c. and all other evidence and proofs produced to them touching the matters in difference, and awarded of and concerning the same, that the defendant should pay to the plaintiff 15001. in full of all claims and demands upon him, &c.; and so proceeded to award concerning other specific matters; but without mentioning such outstanding bills, or any indemnity concerning the same.

And

MITCHELL

And then he alleged a breach in the nonpayment of that 1812. instalment. To this the defendant demurred generally. 5thly, to the same count, that the bond was made sub

against

STAVELEY. ject to the same conditions as before set forth, and that the arbitrators, on the 14th of July 1804, made their 5th plea. award in writing, &c. purporting that they had been attended by the said parties, and heard their allegations, and carefully examined all the accounts, books, notes, bills of exchange, deeds, and other papers and writings, and all other evidence and proofs produced to them the arbitrators, touching the matters in difference; and having duly considered the same, did award and determine of and concerning the same, 1st, that the defendant should pay to the plaintiff 15001, in full of all claims and demands upon him, on any account whatsoever, up to the date of the said writing obligatory, to be paid by instalments of 501.

every three months; the first payment to be made on the 1st of November then next, &c.; until the whole 15001. should be fully paid : 2dly, that the defendant should on the same 1st of November, pay to the plaintiff the costs then incurred in an action then lately commenced by him in B. R. against the defendant, to be settled as between party and party by Mr. Ramsden, attorney in Halifax; 3dly, that a moiety of all debts and sums of money owing to the then late partnership between the plaintiff and defendant should be recovered, got in, or received by the plaintiff, by virtue of the assignment thereof, some time then ago executed by the defendant to him, or otherwise howsoever; (as so much thereof as should be so recovered or received before the said 15001. should be paid by the instalments aforesaid, after deducting one-half of the expenses attending the recovery thereof,) be taken in part-payment of the said

15001.;

1812.

MITCHELL

against STAVELEY.

15001. ; and as to such parts of the said debts as should be recovered or received by the plaintiff after the 15001. should have been paid to him as aforesaid, the plaintiff should duly account for and pay one moiety thereof to the defendant on demand, after deducting half the expenses as aforesaid : Athly, that the defendant should receive to his own use all dividends and sums of money which should be paid in respect of a debt of 6221. 16s. 6d. then already proved by the plaintiff under a commission of bankrupt against the defendant, and that the plaintiff should execute an assignment thereof to the defendant on demand; and should also indemnify him against all claims and demands not exceeding 1601., which Messrs. Ingrams might have against them jointly on their late copartnership account: and, fifthly, that as soon as the 15001. should have been fully paid, and the debts owing to the partnership got and received or liquidated and settled, and one moiety thereof accounted for and paid by the plaintiff to the defendant, subject as aforesaid, and the said assignment of the dividends on the debt of 6221, 16s. 6d. executed by the plaintiff as aforesaid, the parties should execute mutual releases to each other of all claims and demands up to the date of the writing obligatory. And then the defendant averred that no other award was at any time made or published in anywise relating to the premises so submitted as aforesaid: and that there had not been nor were at the time of making such writing obligatory any sum of money due or owing from the defendant to the plaintiff, or any claims or demands alleged or pretended by the plaintiff against the defendant on any account whatsoever to the extent of the said 15001., but to a much less extent only, that is, to the extent of 10231, 13s, and no more.

To this plea

the

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