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Lessee of

1812. tion upon them, according to the apparent intention of

the contracting parties. It is not disputed that if the GOODTITLE, lessee had an intention to cut down the whole of the LUXMORE, timber, and gave notice of it, he had a right to cut all

against SAVILLE. of it: and the only consequence arising from his delay

in cutting down all is to draw in question the genuineness of his intention to cut down the whole: but the case was not put by the plaintiff to the jury in that way, to which the evidence tended, inasmuch as the lessee did not follow up his notice, but ceased cutting after he had began, and resumed it again at several times afterwards. The evidence given at the trial was only applicable to that view of the case, whether he really did intend to cut down the whole, or only to acquire an option of cutting it down at any time when he should be disposed so to do. The words “ when and so oftenare not immaterial; because the lessee might have succes-sive purposes of successive falls and sales of the timber : but here the notice is that he should cut down the whole; though such a notice could not in fact apply to the whole growth of timber during the term, but only to that which was then growing and capable of being cut down. It could be no detriment however to Lord Courtenay, that the lessee did not immediately proceed to fell all the growing timber; for it was drawing nourishment all the time from the soil of the lessee himself, and it was to his own detriment to leave it standing, so as to prevent the application of the land to other purposes. It might, perhaps, be a question (but I give no opinion upon that point,) whether another court would not, upon application under these circumstances, give the lessor a new option to purchase. But sitting here, I cannot but say that if the lessee have once bonâ fide

enter

1812.

entertained and properly communicated his intention to the lessor to cut down the whole of the timber, and the latter has not availed himself of his right of purchase, the lessee has acquired the right of cutting it down. The lessor may bring another ejectment, if he can impeach the intention of the lessee to cut all the timber of which he gave notice : but at present I see no ground to impugn the construction put by the learned judge at the trial upon the clause in question of the lease.

GOODTITLE,

Lessee of LUXMORE,

against SAVILLE.

GROSE, J. I do not know how upon any sound ground to dissent from the construction put at the trial upon the lease. The only questions are whether Mr. Holland really meant to cut down all the timber; and whether he gave due notice of such his intention to the lessor. Now as to his intention I cannot doubt it, because Lord Courtenay himself so understood it at the time. Then I can only consider the notice as communicating that intention, as it was understood by every person at the time.

LE BLANC, J. This ejectment is brought on the ground of a forfeiture of the term demised ; and certainly the Court must be thoroughly satisfied of the construction of the lease contended for, as establishing such forfeiture, before they give an opinion which is to destroy the lease. That lease was granted in 1798, and contains a proviso, that “when and so oftenas the lessee shall intend to sell the timber, &c. growing or to grow on the premises, he shall immediately thereupon give notice in writing to the lessor of such his intention, who shall be entitled to the option of purchasing it in order to prevent its being cut down. The question VOL. XVI.

H

arises

1812. arises on the words " when and so often,whether a

fresh notice is to be given at every fall, or whether upon GOODTITLE,

Lessee of any one intention of the lessee. to cut down all the LUXMORE, timber, &c., and such intention manifested by a notice

against SAVILLE. to that effect, he may proceed to cut down a part in one

season, and other parts at future periods; or whether he is bound to follow up such his intention immediately, by cutting down the whole at once? Now the words “ when and so often” are to be construed according to the subject-matter; and this was a renewing subjectmatter; for the timber and coppice would grow from time to time during the continuance of the term; and therefore to give the lessee the benefit of his purchase from time to time as the wood was fit to be cut, it required not merely one notice, but different notices at different periods, as there was a fresh growth of wood, which was not growing at the time of the lease granted. Besides, there was evidence in this case of an entire disclaimer by Lord Courtenay of any intention to avail himself of the notice given to him; and there was no evidence offered to impeach the fact that there was a bonâ fide intention on the part of the lessee to cut down all the timber, &c. then growing, of which he had given notice. Then why are we to say that the lessee was concluded from following up his general notice in a subsequent season. He could not cut it all down in one season without manifest loss; after giving notice to entitle him to cut at all, he must find purchasers to take it.

As to any hardship upon the lessor by this construction, though Lord Courtenay had once renounced the benefit of the proviso, if he afterwards wished to pay the price for the timber and preserve it, I am not satisfied that there is not another mode by which he

might

1812.

might be let in to purchase it; but that is not now necessary to be decided. It is sufficient for the present purpose that there has been no forfeiture, unless the Court could say that the lessee was obliged to give a fresh notice on every occasion when he carried into execution his original intention of cutting down the timber, which I see no reason for saying.

GOODTITLE,

Lessee of LUXMORE,

against SAVILLE.

BAYLEY, J. had left the court before judgment was given.

Rule discharged

use and occu

out attornment upon

the stat.

a

the trustees of one whose title

Lumley and Raisbeck against Hodgson. Suturday,

June 6th. THIS NHIS was an action for the use and occupation of An action for

certain copyhold messuages, warehouses, and an pation is mainacre of land in Bishopswearmouth, in the county of tainable with Durham; and it was brought to recover a year and

4&5 Ann.c.16., half's rent from the defendant, as tenant, which had ac- 5.9 & 10., by crued after the surrender of the premises, (as aftermentioned,) by one Michael Hutton to the plaintiffs, the tenant (ale

fendant) had calculated up to the 13th of May 1810, when the defend- notice of before

he paid over bis ant quitted the premises; and which rent the defendant rent to his ori. had actually paid to Mr. Hutton, his former landlord, though the te. of whom he had taken the premises. The circumstances nant had no of the case appear in the following bill and answer in legal title being a suit in Chancery, which were admitted and read in on the record. evidence.

The bill, which was for a discovery, was filed by these plaintiffs against the defendant; to which he put in his answer, stating that on the 13th of May 1807,

notice of the

1812.

LUMLEY

against HODGSON.

of the pre

he became tenant from year to year to Michael Hutton of the premises in question, which were copyhold, at a rent of 1001. a-year, (including the fixtures, valued at 401. a-year,) payable half-yearly. That money transactions to a considerable amount had passed between Robert Wilkinson, G. Snowden, and the plaintiff Lumley, who were bankers at Stockton, and M. Hutton, who acted as their agent; and that if any surrender was made of the premises by Hutton to Lumley and Raisbeck, in trust for Wilkinson, his heirs, &c., as stated by the bill, such surrender was, as the deponent believed, intended only as a security for any balance due from Hutton to the banking-house. That the deponent admitted that he was tenant from year

to year mises at the date of the surrender ; but denied that Hutton gave him any notice of it at the time. That Lumley and Wilkinson called upon the deponent in 1808, (whether on the 14th of March or afterwards he could not say,) when Wilkinson informed him that the premises which he (the deponent) then occupied belonged to him, (Wilkinson,) and inquired what rent the deponent paid for the same, when the deponent informed him, &c. and told Wilkinson at the same time that M. Hutton had not informed the deponent that he had surrendered the premises to Wilkinson; and that he (the deponent) could only pay his rent to one landlord, and that it was of little consequence to him to whom he paid his rent, provided he was safe in doing so. That neither Wilkinson nor Lumley then demanded any rent of him, but in a few days afterwards one R. Hull, a clerk of Wilkinson, Snowden, and Lumley called on the deponent, and demanded of him, on their account, payment of rent for the premises, when the deponent informed Hull, as the truth was, that at that time he

owed

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