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1828.

v.

KIBWORTH HARCOURT.

actually paid." Here the whole rent of 107. was actually

The KING paid; and though a part of it was paid, not by the pauper, but by a third person, still, the whole having been paid, I think the requisites of the statute have been satisfied in that respect. With respect to the question of fraud, the case finds that neither the landlord nor the pauper was a party to the fraud; and though the act requires that the tenement shall be "bonâ fide rented," I think that expression can only be construed to mean that the renting shall be boná fide as between the landlord and tenant. Here the renting was bonâ fide as between the landlord and tenant. It seems to me, therefore, that all the requisites of the 6 Geo. 4, c. 57, have been complied with in this case, that a settlement has been gained under that act, and, consequently, that the order of sessions must be quashed.

The other Judges concurred.

Order of Sessions quashed (a).

(a) See Rex v. Carshalton, 9 D. & R. 132; 6 B. & C. 93; 4 D. & R. M. C. 249.

In an agree

and condition

DOE on the Demise of HENNIKER, Esq. v. WAtt. J.L. DAH. 305. EJECTMENT for lands at Moorlinch, in the county of ment enuring Somerset. At the trial before Burrough, J., at the last as a lease, "It is stipulated Bridgwater assizes (b), the following paper, stamped with ed that the les- a lease stamp, was given in evidence by the plaintiff:"Memorandum of agreement made with George Watt (defendant), bailiff of the manor of Chalcott otherwise Catcott, in the county of Somerset. The said George Watt, in condition; upon a sideration of the rent and conditions hereinafter mentioned,

see shall not

underlet:"Held, that

these words

create a con

breach of is to have, hold, and occupy, as on lease, every part and

which the les

sor may main- parcel of all that piece or tract of turbary land, commonly tain ejectment, without an express clause of re-entry.

(b) Counsel for the plaintiff, Wilde, Serjt., and Moody; for the defendant, Jeremy.

called The five hundred acres,' situate in the said manor,
which may now be in hand and disengaged or unlet, for the
term of 21 years, from Lady-day, 1825, at the yearly rent
of 5s. an acre, payable quarterly, and free and clear of all
charges, rates, and outgoings whatsoever; and is likewise
to have, at the like rent of 5s. an acre, all and every parcel
of the said five hundred acres which may fall in hand and
become unlet between this time and the expiration of the
said term of 21 years. Provided always, that the entire or
total quantity of land in the said five hundred acres, so
occupied by the said George Watt, by virtue of this agree-
ment, shall never exceed 100 acres in the whole, and that
the term or lease of all and every parcel occupied or pos-
sessed under this agreement shall cease or determine in 21
years from Lady-day aforesaid. And it is stipulated that
no house or cottage, stable or other substantial building,
nor any parcel on which such building now stands or may
hereafter be erected, shall be included in or leased, by
virtue of this agreement. And it is further stipulated and
agreed that the said George Watt shall take and occupy, at
the rent aforesaid, every parcel of land in the said five
hundred acres,
as the same may fall in hand, without
choice, exception, or refusal, until the total quantity
amounts to 100 acres, as before mentioned. And also
that the said George Watt shall, on possession, proceed to
cultivate and improve every parcel, as the same comes to
his occupation, whether it be late or early in the said term
of 21 years, in like manner or method as he means towards
the parcels of which he has immediate possession. And
lastly, it is stipulated and conditioned, that the said George
Watt shall not assign, transfer, underlet, or part with any
part or parcel of the said lands or premises, otherwise than
to his wife, child or children. Dated this 24th October,
1825.

[blocks in formation]

Some of the land had fallen into hand, subsequently to which the plaintiff proved an underletting by the defendant.

1828.

DOE

v.

WAIT.

1828.

v.

KIBWORTH HARCOURT.

actually paid." Here the whole rent of 107. was actually The KING paid; and though a part of it was paid, not by the pauper, but by a third person, still, the whole having been paid, I think the requisites of the statute have been satisfied in that respect. With respect to the question of fraud, the case finds that neither the landlord nor the pauper was a party to the fraud; and though the act requires that the tenement shall be "bonâ fide rented," I think that expression can only be construed to mean that the renting shall be bonâ fide as between the landlord and tenant. Here the renting was bonâ fide as between the landlord and tenant. seems to me, therefore, that all the requisites of the 6 Geo. 4, c. 57, have been complied with in this case, that a settlement has been gained under that act, and, consequently, that the order of sessions must be quashed.

The other Judges concurred.

Order of Sessions quashed (a).

It

(a) See Rex v. Carshalton, 9 D. & R. 132; 6 B. & C. 93; 4 D. & R. M. C. 249.

In an agree

ment enuring

is stipulated

and condition

ed that the les

see shall not underlet:"Held, that

DOE on the Demise of HENNIKER, Esq. v. WATT.
I. L. DAH. J00.

EJECTMENT for lands at Moorlinch, in the county of

as a lease, "It Somerset. At the trial before Burrough, J., at the last Bridgwater assizes (b), the following paper, stamped with a lease stamp, was given in evidence by the plaintiff:"Memorandum of agreement made with George Watt (defendant), bailiff of the manor of Chalcott otherwise Catcott, in the county of Somerset. The said George Watt, in condition; upon a sideration of the rent and conditions hereinafter mentioned, which the les is to have, hold, and occupy, as on lease, every part and sor may main- parcel of all that piece or tract of turbary land, commonly tain ejectment,

these words

create a con

breach of

without an express clause of re-entry.

(b) Counsel for the plaintiff, Wilde, Serjt., and Moody; for the defendant, Jeremy.

called The five hundred acres,' situate in the said manor, which may now be in hand and disengaged or unlet, for the term of 21 years, from Lady-day, 1825, at the yearly rent of 5s. an acre, payable quarterly, and free and clear of all charges, rates, and outgoings whatsoever; and is likewise to have, at the like rent of 5s. an acre, all and every parcel of the said five hundred acres which may fall in hand and become unlet between this time and the expiration of the said term of 21 years. Provided always, that the entire or total quantity of land in the said five hundred acres, so occupied by the said George Watt, by virtue of this agreement, shall never exceed 100 acres in the whole, and that the term or lease of all and every parcel occupied or possessed under this agreement shall cease or determine in 21 years from Lady-day aforesaid. And it is stipulated that no house or cottage, stable or other substantial building, nor any parcel on which such building now stands or may hereafter be erected, shall be included in or leased, by virtue of this agreement. And it is further stipulated and agreed that the said George Watt shall take and occupy, at the rent aforesaid, every parcel of land in the said five hundred acres, as the same may fall in hand, without choice, exception, or refusal, until the total quantity amounts to 100 acres, as before mentioned. And also that the said George Watt shall, on possession, proceed to cultivate and improve every parcel, as the same comes to his occupation, whether it be late or early in the said term of 21 years, in like manner or method as he means towards the parcels of which he has immediate possession. And lastly, it is stipulated and conditioned, that the said George Watt shall not assign, transfer, underlet, or part with any part or parcel of the said lands or premises, otherwise than to his wife, child or children. Dated this 24th October, 1825.

[blocks in formation]

Some of the land had fallen into hand, subsequently to which the plaintiff proved an underletting by the defendant.

1828.

DOE

v.

WATT.

1828.

DOE

ບ.

WATT.

On the part of the defendant it was insisted that the clause in the memorandum, prohibiting an under-lease, did not amount to a condition. The learned Judge being of a different opinion, the defendant put in a letter of the lessor of the plaintiff, in which he says, "How much land have you in hand? let me know what you can let it for, then I shall know what it is worth." The defendant's mother stated, that she went with her son to the lessor of the plaintiff, who asked defendant what he would take for his land. Defendant mentioned a price; upon which the lessor of the plaintiff said, "then let it, and I shall know what it will produce next year." The learned Judge thought that the supposed waver did not apply to the land in question, inasmuch as defendant, under the agreement, was not to have the whole turbary, but 100 acres out of 500; and he directed a verdict for the plaintiff, giving leave to the defendant to move to enter a nonsuit. A rule having been obtained for a nonsuit or a new trial,

Moody now shewed cause. By the instrument of 24 October, 1825, a forfeiture was created without an express clause of re-entry. The words " condition," or "conditioned," require no additional term. This is clear from Littleton, sections 328 (a), 329(b), and 330 (c). [Holroyd, J.

(a) Item, there are divers words (amongst others) which, by virtue of themselves, make estates upon condition: one is the word sub conditione, as if A. enfeoff B. of certain land, habendum et tenendum eidem B. et hæredibus suis sub conditione quod idem B. et hæredes sui solvant, seu solvi faciant præfato A. et hæredibus suis annuatim talem redditum, &c. In this case, without any more saying, the feoffee has an estate upon condition.

(b) Also if the words were such, "Proviso semper quod prædictus

B. solvat seu solvi faciat præfato A. talem redditum, &c.;" or these, "Ita quod prædictus B. solvat seu solvi faciat præfato A. talem redditum, &c." In these cases, without more saying, the feoffee has but an estate upon condition; so that if he do not perform the condition, the feoffor and his heirs may enter, &c.

(c) Item, there are other words in a deed which cause the tenements to be conditional. As if upon such feoffment a rent be reserved to the feoffor, &c.; and afterwards it is stated in the deed,

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