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Exch, of Pleas, A counterpart of the lease was produced by the plaintiff; 1832.
and the defendant's counsel did not deny that the defend
ant was not in possession as assignee; but, in his address Hemmings to the jury, urged the hardship of a forfeiture on the de
fendant as such assignee; and also contended, that, in point of law, it was incumbent on the plaintiff to shew that the premises were out of repair on the day of the demise. The learned Judge told the jury that a prima facie case had been made out by the plaintiff, which called upon the defendant to shew that the premises were in tenantable repair after the 7th of January; and a verdict, thereupon, having been found for the plaintiff, now
Mansel moved for a new trial.-No sufficient evidence of privity of estate was given, to render the defendant liable under the covenants of the lease as assignee, since the mere payment of rent implies a tenancy from year to year; and, in an action of ejectment, mesne assignments will not be presumed.
Secondly—The plaintiff was bound to shew by a surveyor, or some person competent to form a judgment, that the premises were out of tenantable repair, and also that they were so out of repair after the distress, which was a waiver of the forfeiture, either on the day of the demise, or at least a very short time before-Adams on Ejectment, 74.
BAYLEY, B.—I cannot say I entertain any doubt on either point. On the first point, I consider that there was sufficient to shew a privity between the defendant and the lessor, and that the defendant was in under the lease. The lease was produced, and was at once admitted by the defendant's counsel. The lease came out of the custody of the lessor of the plaintiff, and was executed by the original tenant; and the admission by the defendant shews that he was cognizant of it. The defendant was in possession of the premises, and it turns out that he was in the habit of paying the rent reserved by the lease. I am of opinion,
then, that there were circumstances which made out a pri. Exch. of Pleas,
1832. md facie case of privity. Then comes the question, whether there was any forfeiture, and whether there was a waiver of that forfeiture; it is clear that the premises were HEMMINGS out of repair on the 7th of January, which no doubt was a ground of forfeiture. Up to the 25th of December—I may say up to the 2nd of January, when the entry under the distress was made—the tenancy continued; but there may be a description of forfeiture de die in diem; and, if a neglect to repair continues from day to day, that is a continuing cause of forfeiture. There are two cases which may be referred to upon this subject :-Doe d. Bryan v. Banks (a), and Doe d. Sir Charles Flower v. Peck (6); in the latter of these cases, there was a covenant to insure the demised premises, and keep them insured during the term. The premises were never insured previously to a distress for rent, and the parties continuing to suffer them to remain uninsured de die in diem after that distress, it was held that this was a continuing breach, for which the lessor might recover in ejectment, on a demise subsequent to the distress. Now, in this case, after the time of the distress, there was no new waiver of the forfeiture. It was proved, that, on the 7th, the premises were in an improper state of repair; and there was no evidence to shew that after that period any thing was done to repair them. If the premises had been repaired, the defendant might have proved it; and I think it was incumbent on him so to do.
Vaughan, B.-I think the verdict right. I at first doubted upon the question of privity; but now I think there was sufficient evidence. The counterpart of the lease being found in the possession of the lessor of the plaintiff, was one step towards making that out; the payment of the same rent was another; and the possession of
(a) 4 Barn. & Ald. 401.
(6) 2 B. & Ad. 428.
Exch. of Pleas, the party was a confirmatory circumstance. On the other 1832.
- point, I think the jury had sufficient evidence before them Doe to be satisfied that a forfeiture had accrued, and that it Hemmings was for the defendant to shew that the premises were sub.
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. Where several THERE were two tenants in possession of the premises tenants in possession are serv- sought to be recovered by this ejectment, and a separate
copy of the declaration in ejectment, and notice was served rate copies of CPY me an ejectment, upon each. one rule is sufficient against the casual ejector.
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,
Exch. of Pleas,
1832. Dowson v. CULL. THE plaintiff having taken an assignment, and proceed- In an applicaed on the bail-bond
tion by bail, to stay proceedings on a bail
bond, collusion Humphrey moved to stay proceedings thereon, upon with the defen
dant must be depayment of costs, bail above having been perfected. He nied by both 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
The Court will not set aside a
Exch. of Pleas, 1832.
Weald v. Brown. OGGINS had obtained a rule to shew cause why the final judgment final judgment by default, and all subsequent proceedings, by default, in an
debtan should not be set aside, on the ground that the judgment by reason of no had been signed without any writ of inquiry. The affiwrit of inquiry having been davit stated that the action was in debt, for the amount of executed, unless it appear clearly an apothecary's bill. that the action was not for a
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(6), 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