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1828.

Doe

v. WATT.

cove

always, and it is further covenanted, that the lessee shall
not assign except to the lessor.” The lessee assigned, and
on a question in an ejectment, if this were condition or
covenant, all the justices held it to be a condition ; for it is
a rule when there is a proviso, that the lessee shall do or
not do a given thing, and there is no penalty, it is a con-
dition, otherwise it is void. Another case is Lord Pem-
broke and Sir Henry Berkley (a). That was the case of
a grant of a walk in a forest, and it was provided in the
grant, that the party should not fell any wood. There the
question was, whether this was a condition or a
nant, Gawdy and Clench thought it was a covenant only,
but Popham and Fenner thought it was a condition.
Those Judges held it to be a condition, and they would not
suffer it to be argued because it had been disputed among
them before judgment, and judgment was given by their
advice that it was a condition. In Cro. Elizabeth 486 (6),
it was agreed that A. should let to B. for five years to
Michaelmas next; provided always that B. should pay the
annuity (during the term) of 1201. a-year at Michaelmas
and Lady-Day. A. brought debt for the arrears of the
1201., and whether this proviso was a good reservation or
a condition only, was the question, there being no words of
agreement to pay, nor any express words of reservation.
But the Judges held that it was a good reservation, and
Popham said it was a reservation, and a condition also, as
in Sir Henry Berkley's case, where the words made it a
condition and covenant also.

In Coke Littleton, 203, a man by indenture let land,“ provided always, and it was further covenanted and agreed that the lessee should not alien." It was adjudged this was a condition, but also a proviso in a covenant by force of the other words. We are therefore of opinion in this case, that this is a condition. Then upon the question whether or not the plaintiff was in a condition to insist on the breach of this condition, there was the evidence of the defendant's mo(a) Cro. El. 384.

(6) Harrington v. Wise.

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ther (a). It was said on behalf of the lessor of the plaintiff, that the learned Judge was of opinion, at the time of the trial, it did not refer to the land in question, and therefore he did not think he should do right if he left it to the jury; but on looking to the whole of the report, we cannot see to what other land it could refer. He asks what he will take for his land, and he had no other land except that which was the subject of this contract; and when he mentioned the price, he said “ No, let it; because if I see for what you let it, as you are only to give me five shillings an acre, I shall be able, by estimating the difference of that between the price you let it and the five shillings, to ascertain if what I can give you is a fair and reasonable compensation for the benefit you have in the estate.” We are of opinion in this case, therefore, that there ought to be a new trial.

Rule absolute.

(a) Ante, 696.

Cornish and another v. Seanell. ASSUMPSIT for use and occupation. Plea, non as- Pending a desumpsit. At the trial at the last assizes for the county of from Ă. to B., Devon (6), before Littledale, J., the facts of the case ap- a sequestra

tion issues out peared to be these:

of Chancery On the 25th of June, 1816, Allen Searell, the father of against A.

B. signs an (6) Counsel for the plaintiff, Merewether, Serjt., and Buyly; for the unstamped defendant, Wilde, Serjt., and Manning.

paper, pur

porting that he attorns and becomes tenant to the sequestrators, to hold on such terms as may be afterwards agreed on :-Held, first, that the sequestrators could not maintain use and occupation against B., because an attornment infers a continuance of a subsisting tenancy, which here was by deed: secondly, that the sequestrators had no estate to which an attornment would apply: thirdly, that the instrument, if it had any operaLion, would operate as a new demise, and could not be read without a stamp. A tenant who attorns to a party from whom he did not receive the possession, is not estopped from shewing want of title in such party.

1828.

CORNISH

u. SEARELL

the defendant, demised the premises in question to the defendant, habendum from the 25th of March then last, for the term of 21 years, if the estate and interest of the said Allen Searell therein should so long continue, at the rent of Sol., payable yearly. On the 8th of March, 1825, an order was made by the Court of Chancery, in a cause in which Marshall, Drake, and Browne, were plaintiffs, and Allen Searell was defendant, directing Allen Searell to pay over to Bentall, the receiver appointed in the cause, certain sums of money. Upon this order a writ of execution issued, tested on the 19th of March, 1825. This writ having been disregarded, a sequestration issued; and the sequestrators having applied to the present defendant, as the party in possession, he signed the following instrument:

" 31st January, 1826. I do hereby attorn and become the tenant of a certain estate and premises called Goulds, and also of certain closes of land and orchard and premises, called Cleave and Westaway, situate in Staverton, in the county of Devon, to James Cornish and Frederick Angel, two of the sequestrators named in a certain writ of sequestration issued in a certain cause now pending in the Court of Chancery, between Richard Marshall, George Drake, and Alan Browne, plaintiffs, and Allen Searell, defendant; and to hold the same for such time, at such rent, and on such conditions as may subsequently be agreed on between me and the sequestrators aforesaid. Witness,

(Signed) John Searell. (Signed) Allen Searell, jun."

The annual value of the premises was estimated by surveyors at 751. or 801. Upon this evidence it was objected that the instrument of the 31st of January, 1826, did not recognise or create any relation of landlord and tenant between the plaintiffs and defendant; that if that relation was created, it would constitute all the sequestrators joint landlords, who should therefore all have joined in suing as co-plaintiffs ; that supposing this to be evidence of thę

1828.

CORNISH

SEARELL.

creation of a tenancy, it would require a stamp; that supposing it to operate as an attornment, it was an attornment to a subsisting tenancy by deed. The learned Judge was of opinion that there was considerable weight in these objections, but thought that the case had better go to the jury, giving the defendant leave to move to enter a nonsuit in case the verdict should be against him. His lordship also pointed out another difficulty, namely, that no application had been made to the defendant to agree upon the terms of the future holding, agreeably to the stipulation in the instrument of attornment. The jury found a verdict for the plaintiffs, damages 30l., as for one year's rent.

In last Michaelmas term, Wilde, Serjt., moved according to the leave reserved, and obtained a role nisi for entering a nonsuit: against which,

It

Merewether, Serjt., and Bayly, now shewed cause. lay upon the plaintiffs to shew that the defendant was actually in possession, that he was their tenant, and the value of the premises during the defendant's occupation. The possession was not disputed, and there is no question depending upon the value. The tenancy is proved by the defendant's admission in the attornment that he held under the plaintiffs. The attornment was produced only for the purpose of establishing an acknowledgment of tenancy. It was not of itself an agreement to hold, or if it was an agreement, that agreement was collateral to the purpose for which the plaintiff sought to use the instrument. [Bayley, J.-Do not you use it to prove a surrender of the lease, and is it not evidence of an agreement to hold on terms hereafter to be fixed ?] It was an absolute knowledgment of a tenancy, and it lay upon the defendant to apply to the plaintiffs to define the terms. stamped instrument is admissible in evidence for collateral purposes, Grey v. Smith (a), Rex v. Pendleton (6), Weldon

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1828.

CORNISH

V. SEARELL.

v. Matthews (a), Watkins v. Hewlett (6). So in Drant v. Browne (c), where a proposal was made in writing to let land, which proposal was afterwards accepted by parol, it was held that the proposal was receivable in evidence without a stamp; so here, the attornment was merely a proposal to become tenant. It was evidence to prove that the defendant became tenant, and without a lease. It was not used to shew an agreement, or as a memorandum of an agreement. [Bayley, J.-There is a material distinction between the effect of an attornment and of receiving possession. It was held in Rogers v. Pitcher (d), that in the former case you may dispute your landlord's title, though in the latter you cannot. Holroyd, J.-This is not so much an attornment as a stipulation for a new tenancy; an attornment proceeds upon an old tenancy.] In Childers v. Boulnois (e), the Court held that an I O U requires no stamp. [Holroyd, J.-A receipt stamp is only necessary where a discharge is given for a subsisting debt (3).] If the parties came to no agreement as to the terms of the holding, the defendant ought not to occupy the plaintiff's land without payment.

Manning, contra, referred to Gravenor v. Woodhouse (g), in wbich the distinction laid down in Rogers v. Pitcher had been recognised and acted upon. (Here he was stopped by the Court.)

BAYLEY, J.-In every view of this case the plaintiffs are not entitled to recover. The defendant held under a lease granted by his father, against whom a sequestration after

(a) 2 Chitt. Rep. 399.

(b) 1 Bro. & Bingh. 1; S. C. 3 J. B. Moore, 211. And see Sutton v. Toomer, ante, 125; Mullett v. Hutchinson, ante, 522, 7 B. & C. 639; Langdon v. Wilson, ante, 10, 7 B. & C. 640, n.

(c) 5 D. & R. 582.

(d) 6 Taunt. 202, 1 Marsh. 541, S.C.

(e) 1 Dowl. & Ryl. N.P.C. 8.

(f) Tomkins v. Ashby, 6 B. & C. 541.

(g) i Bingh. 38, 7 J. B. Moore, 289, S.C.

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