1823.

RENNIE

2'.

ROBINSON.

instrument; as the property was vested in trustees for her sole and separate use, by the deed of settlement after marriage. That, therefore, distinguishes this case from Arnold v. Revoult, where the property of the wife was a mere chattel interest. Here, however, there was a continuing interest in Mrs. Williams after the marriage had been celebrated. Further, by the terms of the will under which the property was originally devised to her, it was given to a trustee for her sole and absolute use and advantage. Williams, therefore, could neither have a legal or equitable interest, as the former was vested in the executor, and the latter in his wife or her trustees, by virtue of the settlement, neither of whom were parties to the lease by which the premises were demised to the plaintiff. As to the deed of settlement not having been registered, and that it was therefore void as against the plaintiff without notice; yet as it was recited in the lease, of which he had notice, the registry acts had been complied with, by causing a memorial of the latter instrument to be registered. There is, consequently, nothing in that objection; and as the defendant has never recognized the plaintiff's title, but paid the rent for the apartments to Mrs. Williams, who was legally entitled to receive it, the present action cannot be sustained; and the plaintiff was therefore properly nonsuited at the trial,

Mr. Serjeant Taddy, in reply, was stopped by the Court.

Lord Chief Justice DALLAS.-The defendant occupied the premises, for the enjoyment of which this action was brought, under a written agreement from Williams, as a tenant from year to year; and by his accepting the occupation, and enjoying the apartments under it, he thereby recognized the title of Williams, who afterwards, by lease, conveyed his interest in them to the plaintiff, of which the defendant had notice, and was required to

pay him any rent that might become due in respect of his occupation thereafter. The plaintiff, therefore, must be taken to stand in the situation of Williams, by his having conveyed all his interest in the premises to him: and although the defendant refused to recognize the plaintiff as his landlord, or attorn to him, yet he continued in the occupation of the apartments; I am therefore of opinion, that as it was not competent to him to dispute the title of Williams as his acknowledged landlord, so neither can he impeach that of the plaintiff, who is consequently entitled to recover.

Mr. Justice PARK concurred.

Mr. Justice BURROUGH.-This being an action for use and occupation, the only question turns on the contract entered into between the defendant and Williams; and it seems to me that the latter had a right to let the apartments to him without his wife signing that agreement. It is therefore unnecessary to consider whether the plaintiff can be considered as the assignee of Williams or not; and if Williams had brought this action, he must have been nonsuited, as he could not dispute his conveyance to the plaintiff, nor controvert his title; and after notice of the lease, an implied contract arises on the part of the defendant to pay rent to him. If Williams had died, the plaintiff would stand in the situation of his representatives. The reversion only was in Williams, under whom the defendant occupied as a yearly tenant: and Williams had clearly a right to assign his interest in the premises to the plaintiff. The rule, therefore, for setting aside the nonsuit, and entering a verdict for the plaintiff for the amount of the rent due from the defendant at the time of the commencement of the action, must be made

Absolute (u).

(a) Soe Doe d. Colemere v. Whitrue, 1 Dow. & Ryl. N. P. C. 1.

1823.

RENNIE

v.

ROBINSON.

1823.

Wednesday,
Feb. 5th.

If a material

RICHARDSON v. FISHER and others.

THIS was an action for goods sold and delivered, in witness states which the plaintiff sought to recover from the defendants the amount of certain articles furnished to them, as part owners of two vessels called the Harriet and Thetis.

on affidavit that

he had made a mistake in giving his testimony at the trial, the Court will grant a new trial. Where, therefore, in an acan action brought against the de

fendants, as

part owners

articles sup

plied by the plaintiff, a notary public swore that one

of the defend

At the trial, before Lord Chief Justice Dallas, at Guildhall, at the Sittings after the last Trinity Term, there was no direct evidence to connect them with the original owners, when the articles in question were furnished, with the exception of one witness, a notary public, who swore that one of the defendants had previously of a vessel, for requested him to prepare the bills of sale, and that after they were executed he delivered them over to him.-Since the trial, however, the notary made an affidavit, stating that he was mistaken; as, on examining his books, he had discovered that he was employed by Messrs. Bagshaw and Seale (the original owners) to prepare the bills goods were fur- of sale, and not by one of the defendants, or either of them. A notice was also given the plaintiff to produce his books at the trial, which he refused to do; but it t-ken, and that afterwards appeared, from a copy of his journal, that Messrs. Bagshaw and Seale only were debited, and that the names of the defendants were not inserted therein; and that in his order book the names of the ships to be re-tried. only were entered, without debiting any particular per

ants employed

him to execute a bill of sale before the

nished; but

after the trial,

swore that he had been mis

Le had been employed by the original owners alone, the Court or

dered the cause

son.

His Lordship left it to the jury to say, to whom the credit was originally given: they thought, from the testimony of the notary, that it was given to the defendants, and accordingly found a verdict for the plaintiff.

Mr. Serjeant Pell having, in the last Term, obtained a

1823.

rule nisi, that this verdict might be set aside and a new trial granted, on the ground that the verdict was against RICHARDSON evidence, but chiefly on the above affidavit of the notary

Mr. Serjeant Vaughan now shewed cause; and submitted, that the affidavit did not affect the merits of the case. That the legal ownership was clearly in the defendants at the time the goods in question were furnished by the plaintiff; and that the jury were fully warranted in presuming that they were liable. That the only question left to them was, whether the credit was given to the defendants, or Bagshaw and Seale, the original owners; and as it was satisfactorily proved that the former were legally part owners at the time the articles were supplied by the plaintiff, he was entitled to recover; and consequently that the verdict could not be disturbed and more particularly so, as the testimony of the notary was immaterial as to the question submitted to the jury.

Lord Chief Justice DALLAS. Why did you call him as a witness, if you did not consider his evidence to be material? The question was not, who were the legal owners, but to whom was the credit originally given by the plaintiff; and it appeared from his own books that, Bagshaw and Seale only were debited, and not the defendants. Independently of this, I am of opinion that there must be a new trial, as the notary has since sworn that he was mistaken as to one of the defendants being the person who employed him to prepare the bills of sale.

Mr. Justice PARK. The plaintiff had notice to produce his books at the trial, but refused to do so. Copies, however, have been since obtained by the defendants' attorney, of his order book and journal, in the latter of which, Bagshaw and Seale only were debited. The testiony of the notary might have turned the scale in the

V.

FISHER.

1823.

RICHARDSON

1.

FISHER.

opinion of the jury; but his affidavit has explained what might have appeared doubtful at the trial, as to who were in fact the ostensible owners. Besides, he was examined on the part of the plaintiff; and as the affidavit since made by him remains unanswered, I have no doubt in saying that this case must go down to a second trial.

Mr. Justice BURROUGH.-The evidence given by the notary formed a material part of the plaintiff's case; and he has since sworn that he was mistaken in the testimony he gave at the trial. The Court cannot weigh with nicety the preponderance of evidence; but I think that on this affidavit, as well as on the merits, there must be a new trial.

Rule absolute, costs to abide the event (a).

(a) See Baker v. Buckle, ante, page 349.

Wednesday, THOMPSON and another, Assignees of CHAPMAN, a Bankrupt, v. BEATSON and others.

Feb. 5th.

and part owner

Where a master THIS was an action of assumpsit for money had and reof a vessel con- ceived; and brought by the plaintiffs as the assignees of signed her to Chapman, a bankrupt, to recover the sum of 1751, 6s. rewho were ship ceived by the defendants from him, under the following usual terms of circumstances:

the defendants,

brokers, on the

commission, on which the ship's papers were handed over to them, and they made disbursements on his account; and he was afterwards arrested, and lay in prison more than two months, on which a commission of bankruptcy was issued against him, and the plaintiffs were appointed his assignees ; and whilst he was in prison the defendants adjusted their account with him, and received the balance due to them on account of their disbursements, and at the same time delivered to him the ship's papers;Held, in an action brought by the assignees for the recovery of such balance, that they were not entitled to recover, as the defendants had a lien on the papers until their account was adjusted and paid; and that neither the bankrupt nor his assignees could have disposed of the vessel before the papers were given up.