Exch. of Pleas, 1832.

A coach maker

who was ten

ant from year to

year of certain premises, and had several

coaches on hire, became bankrupt, and his as

upon the pre mises to keep

the coaches in

ance of the

tracts; in August, the bankrupt's effects were sold

and the key of

ANSELL V. ROBSON and Another, Assignees, &c. ASSUMPSIT against the assignees of a bankrupt for use and occupation, to recover one quarter's rent, due at Christmas, 1831, for premises let by the plaintiff to the bankrupt.

At the trial before Gurney, B., it appeared that the signees entered bankrupt had carried on an extensive business as a coach manufacturer, and at the time of the bankruptcy, on the 9th of March, 1831, had upwards of three hundred coaches repair in pursu- let on hire, under contracts. The assignees made use of bankrupt's con- the premises in question for the purpose of continuing the works and to keep the coaches in repair, pursuant to the terms of the contract; and, on the 26th of March, the day after the assignment, half a year's rent was paid under a distress. On the 15th of August, a sale took place, and on the 17th the assignees sent the key of the premises to the bankrupt, but they paid rent up to Michaelmas. The learned Judge directed the jury to find for the plaintiff, if they were of opinion that the defendants had taken possession of the premises with a view to a beneficial occupation; and the jury having accordingly found a verdict for the plaintiff—

the premises delivered to the bankrupt, but the asssignees

paid the rent up to the Michael

mas following. In an action by

the landlord for

a quarter's rent

due the Christ

mas following

Held, that the assignees were liable.

Hutchinson moved for a new trial, submitting that the defendants were not liable, inasmuch as there was no actual occupation from Michaelmas to Christmas, and no contract for a tenancy; and that their acts would not have amounted to an acceptance of the term, if the bankrupt had held under a lease, but merely to an experiment for the purpose of ascertaining the value of the premises. If liable here, they would be equally so had they only gone on the premises for one day.

Lord LYNDHURST, C. B.,-That would have been equi

1832.

ANSELL

v.

vocal; but, if assignees go on the premises for the purpose of Exch. of Pleas, taking possession, and actually take possession, that is sufficient to bind them to take the premises. A tenancy from year to year, until it is terminated, is the same as a lease. The interest of the bankrupt vested in the defendants; and it was expressly found by the jury that they took possession and occupied with a view to benefit the estate; a finding perfectly consistent with the evidence.

Rule refused.

ROBSON,

WILLIAMS v. JONES.

THE defendant being in the custody of the Sheriff of Carnarvonshire, in the county goal, at the suit of a different plaintiff, surrendered to a commission of bankrupt which was worked in that county. He was now brought up under a writ of habeas corpus ad satisfaciendum issued by the present plaintiff, in order to be charged in execu

tion.

R. V. Richards, for the petitioning creditor, moved that he might be remanded, and that the costs of his removal and return should be paid by the plaintiff.

J. Jervis contended that the plaintiff was entitled to charge a defendant in a county goal in execution, either by lodging a capias ad satisfaciendum with the sheriff, or bringing up the defendant by habeas corpus ad satisfaciendum, in order to remove him into the custody of the Warden of the Fleet. He cited Dax's Practice, 109-Tidd's Practice, 364.

[Bayley, B.-Have you any authority which says you have a right to proceed by habeas corpus? The proceedTT?

Where a defen

dant is in a

county gaol, the

entitled as of right to a writ

plaintiff is not

of habeas corpus

ad satisfacien

dum, with a view

to remove him to the custody of the Warden of the Fleet. The issuing of such a

writ is discretionary with

the Court.

Exch. of Pleas, ing by capias ad satisfaciendum is more obvious, and more

1832.

WILLIAMS

ย.

. JONES.

convenient.]

In Owen v. Owen (a), it was not disputed that a plaintiff might elect which writ he would resort to; and the only question raised was whether the delivery of a ca. sa. to the Sheriff completed the execution, so as to preclude the plaintiff from subsequently proceeding by habeas corpus ad satisfaciendum.

BAYLEY, B.-I think that the issuing of this writ is an act within the discretion of the Court, and therefore, that, if they had been apprised when it was applied for, that the party was in a distant county goal, and that the only object was to charge him in execution and commit him to the custody of the Warden of the Fleet, they would not have granted it. In the exercise of a sound discretion, the Court will consider the circumstances under which they are called upon to grant the writ, and, looking at them in this case, it is clear that it is writ which the plaintiff ought never to have asked for, as he might have charged the defendant in execution as effectually in the Court below by a writ of capias ad satisfaciendum lodged with the sheriff. The writ, then, has improperly issued, and the defendant has a right to be remanded. I cannot help thinking that it would be an oppresive act in a case like this to allow such a writ to issue, and a great hardship to open the prison of this Court to all prisoners in the county prisons, at the option of execution creditors.

The prisoner was—

(a) 2 B. & Ad. 805.

Remanded.

Exch. of Pleas, 1832.

DIXON V. WIGRAM.

COVENANT on a mortgage deed. On a rule to shew cause why the plaintiff should not assign and reconvey the mortgaged premises, and deliver up the mortgage deeds, on bringing the principal money, interest, and costs, into Court, and why proceedings should not be stayed, it appeared that the plaintiff who was first mortgagee, had received a notice from a second mortgagee of his interest, and had been desired not to deliver up the deeds.

Alexander shewed cause, and contended that the case was not within the statute 7 Geo. 2, c. 20, first, as the action was not in ejectment or on a bond for payment of the money secured by the mortgage, or performence of the covenant therein contained;" and, secondly, as the second mortgagee did not consent to the delivering up of the deeds, and, therefore, might have his remedy against the plaintiff, after notice, in a Court of equity.

Beames, contrà, submitted that the case was clearly within the intention of the act, which was remedial and was passed to save the delay, trouble, and expense of resorting to a Court of equity; that the second mortgagee could not call the plaintiff to account in equity, unless he were guilty of some fraud or negligence in his character of trustee; and that the interest of the second mortgagee could not be compromised, as a note of the existence of his interest might be indorsed on the deed, which would operate as ample notice to a subsequent incumbrancer. He cited Besthen v. Street (a), where the Court interfered in an action of covenant, Pickering v. Truste (b), and Banks v. Brand (c), as shewing that the Court possessed

A first mortgee brought covenant in the

an action on the

mortgage deed,

having receiv

ed notice from a

second mortga

gee not to deli

ver up the deeds.

The mortgagor applied to the Court to compel the plaintiff, under the stat. 7 Geo. 2, c, 20, to re

convey the pre

mises upon pay

ment of the

est, and costs; and the Court

held it to be a

case within the

statute, and

made the order.

(a) 8 T. R. 326.

(b) 7 T. R. 53.

(c) 4 M. & S. 525.

1832.

Exch. of Pleas, and would exercise an equitable jurisdiction, in staying proceedings where a defendant offered to do all that justice required.

DIXON

v.

WIGRAM.

The Court said the case was within the statute, and, as to the second point, that the second mortgagee would be in no danger, as several modes might be adopted to prevent any injury arising to him in consequence of the interference of the Court.

Rule absolute.

IN THE EXCHEQUER CHAMBER.

[In Error from the Court of K. B.]

The costs occa

sioned by a fri

atious election

petition, may be recovered under the stat.

9 Geo. 4, c. 22, ss.57,69, against one of several petitioners.

GURNEY v. GORDON and Another.

DEBT upon the statute 9 Geo. 4, c. 22. The declaravolous and vex- tion stated that the defendant below (Gurney) was indebted to the plaintiffs, under and by virtue of a certain act of Parliament made and passed in the ninth year of the reign of his late Majesty, George the Fourth, to consolidate and amend the laws relating to the trial of controverted elections or returns of members to serve in Parliament, in the sum of 12607. 10s. 8d., for the costs and exexpences incurred by the plaintiffs in opposing the petition of the said defendant, and one Charles King Esq., complaining of an undue election and return for the Borough of Tregony; and to be paid by the said defendant to the plaintiffs when he, the defendant, should be thereunto afterwards requested: whereby, and by reason of the said last-mentioned sum of money being and remaining wholly unpaid, and by virtue of the said act, an action had accrued to the said plaintiffs, to demand and have of