1832. Exch. of Pleas, the party was a confirmatory circumstance. On the other point, I think the jury had sufficient evidence before them to be satisfied that a forfeiture had accrued, and that it was for the defendant to shew that the premises were sub. DURNFORD. Sequently repaired. DOE HEMMINGS v. BOLLAND, B.-I am of the same opinion. The objection, that no privity was established, was not pressed at the trial, because it was put to the jury as a case of hardship upon the defendant as assignee. It is too late, therefore, to make that a ground for a new trial now, upon which further evidence, had the objection been urged, might have been offered at the trial. As to the state of repair, the condition in which this house stood, was proved by the evidence of the broker, who, in my opinion, was a competent witness; and, as such a house must get worse and worse every day, and the defendant did not shew that he had taken any steps to repair it, or that he had ordered workmen to go in for that purpose, it must be assumed that it remained in the same state. DOE v. ROE. Rule refused. Where several THERE were two tenants in possession of the premises tenants in pos session are serv- sought to be recovered by this ejectment, and a separate copy of the declaration in ejectment, and notice was served upon each. Lumley, who moved for judgment, said, that it had been doubted whether two rules were not necessary in such a case, but suggested that one was sufficient. And so the COURT agreed, observing that it was but one ejectment; and that service upon one of several joint tenants was good as to all. Rule accordingly. Exch. of Pleas, 1832. Dowson v. CULL. THE plaintiff having taken an assignment, and proceed- In an applica ed on the bail-bond He Humphrey moved to stay proceedings thereon, upon payment of costs, bail above having been perfected. had only the affidavit of one of the bail below, who swore that the application was made without any collusion or concert whatsoever with the defendant. Thesiger contended that there should be an affidavit from both the bail, denying collusion. Upon which Humphrey prayed time to obtain such an affidavit. Time was granted, but the affidavit was not produced. Upon which BAYLEY, B., said, that the affidavit of one of the bail was consistent with collusion and concert between the defendant and the other bail. And, as the Court never interfered without an express affidavit to satisfy them that the application was made purely on the behalf of the bail, at their instance, for their indemnity, and at their expense, without collusion with the defendant, the rule must be Discharged. tion by bail, to stay proceedings on a bailbond, collusion with the defen dant must be de nied by both the bail. Exch. of Pleas, 1332. WEALD V. BROWN. The Court will HOGGINS had obtained a rule to shew cause why the not set aside a final judgment by default, in an action of debt, by reason of no writ of inquiry having been executed, unless final judgment by default, and all subsequent proceedings, should not be set aside, on the ground that the judgment had been signed without any writ of inquiry. The affidavit stated that the action was in debt, for the amount of it appear clearly an apothecary's bill. that the action was not for a sum certain. Kelly shewed cause, submitting, that, as in actions of debt the plaintiff was in general entitled to final judgment without a writ of inquiry, it was for the defendant to shew explicitly that this case was an exception, and one in which a writ of inquiry was necessary. Hoggins, contrà, contended that a writ of inquiry was necessary, citing Arden v. Connell (a), and Brill v. Neele (b), and referring to the opinion intimated by Bayley, J., in the latter case, that if, in debt on a quantum meruit, or in other cases, where a sum certain was not declared for, execution were issued, without first executing a writ of inquiry, it might be ground of error, or at least would be irregular. [Bayley, B.-How does it appear that the declaration was on a quantum meruit, and not for a sum certain?] It must be inferred that debt for an apothecary's bill is upon a quantum meruit. BAYLEY, B.-This objection is sufficiently answered by saying that this is an action of debt. There is no doubt, that, in certain cases of actions of debt, some of which are referred to by my Brother Holroyd, in Brill v. Neele, and Arden v. Connell, a writ of inquiry is requisite. If, from the nature of the contract, the amount must of necessity (a) 5 Barn. & Ald. 885. (b) 2 Chit. 619. 1832. WEALD v. BROWN. be uncertain, then, in an action of debt, as well as in other Exch. of Pleas, actions, there must be a writ of inquiry to reduce it to certainty. An apposite case is an action of debt for not setting out tithe, where the jury must ascertain the single value, before the Court can give to the defendant the treble value of the tithes. But this is an exception to the general rule, that, in actions of debt, the plaintiff is entitled to consider the amount specified as the real debt, and that there is no reason for a writ of inquiry to inform the conscience of the Court. In Taylor v. Capper (a), where execution had been levied without any writ of inquiry executed in an action of debt, wherein the defendant had suffered judgment by default through a mistake in having pleaded non assumpsit, the Court decided that a writ of inquiry was not necessary. It is impossible for us to say, without any thing to shew that the declaration was so framed as to render a writ of inquiry essential, that this judgment, for the want of it, was irregular. VAUGHAN, B.-There is nothing before the Court to shew, that in this action the debt was of such a nature as to require a writ of inquiry to ascertain its precise amount. That can be collected from inference only, which is not enough to bring this case within the exception to the rule, that the sum declared for is the true debt. Exch. of Pleas, 1832. ed certain lease hold premises to trustees, on trust to permit and suffer his wife to receive the rents, &c. during her life. surviving trus tee and the widow granted a lease of the premises, the rent to be paid to the widow, and the lessors to have a power of re-entry upon non-payment of rent; the lease disclosed the title of the widow, who, af ter the death of the trustee, en DOE d. BARKER v. GOLDSMITH. W.B. bequeath- WILLIAM Barker, by his will, dated in 1816, bequeathed to J. Roberts and J. Shirven certain premises in Duval's Lane, Islington, their executors, administrators, and assigns, for the residue of a term, upon trust to permit and suffer his wife Sarah Barker to have, take, and reAfterwards the ceive the rents, &c., during her natural life, if she should so long continue a widow; and from and after her death or future marriage, on trust to sell the same, and divide the produce between H. Barker and J. Barker, his sons; and appointed Roberts and Shirven executors of his will. Shirven died before 29th September, 1823; on which day, by indenture of lease between J. Roberts, therein described as surviving executor of William Barker, Sarah Barker, therein described as widow of the said William Barker, and H Barker, devisee and residuary legatee named in the last will of the said W. Barker, of the first part, and J. Goldsmith, of the other part, reciting an assignment in August, 1816, from Hartwell to the testator W. to the legal es- Barker, of a lease of the above premises to Hartwell, dated November, 1807, for fifty-two years, and also the dispositions in the will of W. Barker deceased, they the said J. Roberts, Sarah Barker, and Henry Barker, demised the said premises to the defendant, at a rent payaable to S. Barker and H. Barker, and the survivor of them, and the executors of such survivor; and with a proviso for re-entry by J. Roberts, Sarah Barker, and Henry Barker, and the survivor of them, and the executor of the survivor, in case of non-payment of rent. After this lease, J. Roberts, the surviving executor, died, and the rent not being paid, Sarah Barker brought an ejectment on the proviso upon her sole demise. The cause was tried before Gurney, B., at the Middlesex Sittings, and a verdict was found for the lessor of the plaintiff, with liberty for the tered on the premises: Held, that be ing a stranger tate, the power of re-entry could not be reserved to her, and that the lease operated as a lease by the trustee and a confirmation by the widow. |