or interest in possession, granted, appointed, or otherwise assured by any instrument (other than a will) to him or some other person through whom he claims, by al: person being in respect of the same estate or interest in the possession or receipt of the profits of the land, or in receipt of the rent, and no person entitled under such instrument shall have been in such possession or receipt, then such right shall be deemed to have first accrued at the time at which the person claiming as aforesaid, or the person through whom he claims, became entitled to such possession or receipt by virtue of such instrument." Upon both points, therefore, I am of opinion there should be a new trial.

PARK, J.-Upon the second point I could have wished for further time to consider; though I am disposed to concur with his lordship in thinking that the statute referred to does not control this case, Mr. Butt having, as I conceive, clearly shewn that it falls within neither branch of the 3rd section. As to the other point: no evidence was offered to shew that the testator possessed leasehold at his death: there must therefore be a new trial.

GASELEE, J.-If the court had on this occasion, been disposed to settle the point raised upon the statute, I also should have desired time to consider it: the question is one of great importance, arising upon the construction of an act of parliament which has not yet been the subject of an adjudication in either of the courts. Before the cause

goes down again, I should recommend the parties to revise their pleadings. The avowry seems to me not to be supportable: there is no allegation in it as to whether or not the testator died possessed of the leasehold property; it would probably be better that that fact should appear. The matter ought to be so put that an ulterior judgment might if thought necessary be taken upon it.

1836.

JAMES

v.

SALTER

1836.

JAMES

V.

SALTER.

BOSANQUET, J.-Upon the first issue the question is whether or not any presumption arises from the fact of the avowry setting out the will under which the avowant claims, that the testator died possessed of leasehold property. The distress was made on the freehold. The avowant may be insisting that the annuity passed to him whether there was leasehold property out of which it could be satisfied or not. It appears to me that no inference results from the avowry, that the testator died possessed of any leasehold. The other question is one of great importance-whether an annuity which has never been received at all will entitle the annuitant to distrain for arrears accruing within the last twenty years. It is admitted that the right of distress would be barred if the first year's annuity had been received, and none had been paid since; but it is contended that, the anannuity never having been paid at all, the statute does not operate in bar of the avowant's claim, notwithstanding the lapse of more than twenty years since the right first accrued to him. If the matter stood simply on the 2nd section of the statute, it might have admitted of question whether the intention of the legislature was not, that, if the rent were at any time suffered to be in arrear for twenty years, the right of distress should be barred. But the 3rd section gives a detailed definition of what shall be held to fall within the 2nd section, with regard to the time of the accrual of the right. This case does not fall within either of the explanatory instances contained in the 3rd section. That being so, it appears to me, as at present advised, that the right of distress in question was not barred by the statute.

(a) See Doe d. Corbyn v. Bramston, 3 Ad. & E. 63, a decision on the 3 & 4 Will. 4, c. 27, s. 17. And see the remarks of Mr. Hayes upon

Rule absolute (a).

this statute, in the forthcoming edition (3rd) of his valuable Treatise on Conveyancing.

ods to the WADDILOVE v. BARNETT, 00 10 vultudar

1

ASSUMPSIT for use and occupation.-Plea, non assumpsit. At the trial before Vaughan, J., at the Sittings in London in Easter Term last, it appeared that the defendant had been let into the possession of the premises in question under an agreement in writing between, himself and the plaintiff, made on the 19th December, 1826, which stipulated that the occupation should commence upon and from that day, but that the rent should become payable only from Midsummer, 1828. The action was brought for arrears of rent accruing under, this agreement. On the part of the plaintiff, it was proved, that, in 1831, he had distrained for rent due in respect of the premises, and that the defendant on that occasion gave him a bill of exchange in satisfaction of the arrears due. The defendant proposed to shew, that, prior to the date of the agreement, the plaintiff had mortgaged the premises; and that, after the rent in question became due, but before any rent had been paid, the mortgagee had given him notice not to pay the same to the mortgagor. The learned judge thought that this evidence was by the new rules in pleading of Hilary Term, 4 Will. 4, precluded from being given under non assumpsit. A verdict was thereupon taken for the plaintiff, for 811. 5s.

Bompas, Serjeant, in Easter Term last, obtained a rule nisi for a new trial, on the ground that the evidence tendered had been improperly rejected.

1836.

Friday, Jan. 29th.

for use and

possession of

In assumpsit occupation of premises into which the tered under an agreement between himplaintiff:— under non assumpsit, the

defendant en

in writing

self and the

Held, that,

defendant might

give in evidence

the fact of the

plaintiff having
mortgaged the
his tenancy
and that he
notice from the
mortgagee not

premises before

commenced,

had received

to pay rent to

the mortgagor; merely amounting to a denial fact stated in from which the

these facts

of a matter of

the declaration

promise in law
is implied.
But, held,
that the defen-

dant could only
discharge him-

under that plea

self as to the rent that be

came due after the notice: as

Busby, in Michaelmas Term, shewed cause. The de- to the by-gone

rent, the matter must be pleaded

fendant having come in under the plaintiff upon an express
contract in writing, and having acquiesced in his title as specially.
landlord by submitting to a distress, he is estopped from
now disputing it. In Panton v. Jones, 3 Camp. 372, it was

1836.

WADDILOVE

บ.

BARNETT.

expressly ruled, that, if the occupier of a house submits to a distress for rent stated in the notice of distress to be due from him as tenant to the distrainor, this is an acknowledgment of the tenancy. At all events, if the defendant had intended to rely on the fact of the plaintiff's title having expired, he should have pleaded specially the mortgage and the notice served upon him by the mortgagee; for, by the rule of Hilary Term, 4 Will. 4, Assumpsit, 1, it is provided, that, "in all actions of assumpsit, except on bills of exchange and promissory notes, the plea of non assumpsit shall operate only as a denial in fact of the express contract or promise alleged, or of the matters of fact from which the contract or promise alleged may be implied by law." In Edmunds v. Harris, 4 N. & M. 182, in debt for goods sold and delivered, the defendant pleaded nunquam indebitatus: and it was held that he could not give in evidence under this plea that the goods were sold on a credit that had not yet expired. And in Barnett v. Glossop, ante, Vol. 1, 621, 1 New Cases, 633, 3 Dowl. 625, it was held, in assumpsit for the price of a copyright bargained and sold, that a defence on the ground that the copyright was not assigned in writing must be pleaded specially.

Bompas, Serjeant, in support of his rule.-The effect of the mortgage was entirely to divest the title of the mortgagor. The instant the mortgagee claims or gives notice to the tenant not to pay rent to the mortgagor, the interest of the latter is at an end: and it makes no difference whether the mortgage was made before or after the tenancy commenced. In Moss v. Gallimore, 1 Doug. 279, it was held that a mortgagee, after giving notice of the mortgage to the tenant in possession under a lease prior to the mortgage, is entitled to the rent in arrear at the time of the notice, as well as to what accrues afterwards; and he may distrain for it after such notice. And it is competent to the tenant, under non assumpsit, to give in evidence that

the authority of the mortgagor to receive the rent has been determined by a notice from the mortgagee. In Barnett v. Glossop, the bargain was admitted; but the defendant sought to avoid it by shewing that the requisitions of a statute had not been complied with in the transfer of the copyright: whereas here the defendant merely asserts that he has not used and occupied the plaintiff's premises. In Cousins v. Paddon, 2 C. M. & R. 547, it was held, that, under the general issue to an action for goods sold and delivered, or for work and labour done, the defendant may prove (even since the new rules) that the goods delivered were not such as were contracted for, or that the work was done in an unworkmanlike manner, although there was a special contract to pay for the goods or work at a certain price. [Tindal, C. J.-The defendant was let into possession as tenant. Until the mortgagee asserted his right, the defendant could not dispute the mortgagor's title: the question therefore is whether this is not rather like the case of an eviction, which must be pleaded specially.] If the premises were held under a lease or a special agreement for a term, and the plaintiff declared thereon, the defendant would be bound to plead the eviction: but the facts which would amount to an eviction may be given in evidence under non assumpsit where the plaintiff declares simply for the use and occupation.

Cur, adv. vult.

TINDAL, C. J., now delivered the judgment of the court:This was an action of assumpsit for use and occupation, to which the defendant pleaded non assumpsit: and the only question on the trial was, whether, consistently with the new rules in pleading made in Hilary Term, 4 Will. 4, the defence intended to be set up at the trial could be given in evidence under that plea. It appeared at the trial, upon the plaintiff's evidence, that the defendant had been let into possession of the premises in question under D D D 2

1836.

WADDILOVE

V.

BARNETT.