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1821.

June 1.

TOMLINSON v. DAY.

A lessee took THE Defendant took a mansion-house and farm

a farm under

an agreement,

which he

and the terms

of which his lessor, in a material point, failed to fulfil. In an

action for the use and occu

pation of the farm, Held, that the jury might ascertain the value of the land, without regarding the amount of rent reserved

of the Plaintiff, under an agreement, by which the Plaintiff agreed, among other things, that the Defendnever signed, ant should have the exclusive right of sporting over the manor within which the farm lay, and should occupy the glebe land of the parish. The rent to be paid was 450%. This agreement, though acknowledged and recognised, was never signed by the Defendant; but he occupied the farm for some time. The Defendant's chief inducement to take the farm was the promised privilege of an exclusive right to sport; but it turned out that the Plaintiff (not being the owner of all the lands in the manor, nor having free warren) had no power to grant any such privilege, and the Defendant was in fact warned off by the several occupiers within the manor. The Plaintiff also failed in procuring the by the agree- glebe for the Defendant's occupation, and for this he offered to make a proportionate abatement of the rent. The Defendant, being sued in an action for use and occupation, for 450l., one year's rent, as reserved by the agreement, paid 350%. into Court, and proved the foregoing facts at the trial before Dallas C. J., at the London sittings after last Hilary term, when the jury found a verdict for the Defendant, considering 350l. to be the annual value of the land, independently of the glebe and the privilege of sporting.

ment.

Vaughan Serjt., on a former day, obtained a rule nisi for a new trial, on the ground that the agreement, though not signed, having been acknowledged by the Defendant's occupying the land, he must be bound by it as to the quantum of rent, under the 11 Geo. 2. c. 19. s. 14.; that the value of the land being ascertained by

the

the rent reserved in the agreement, the jury were not at liberty to find any other value; and that, with respect to the Plaintiff's failure to procure the exclusive privilege of sporting, the Defendant might obtain redress in

a cross-action.

Pell Serjt., in shewing cause against the rule, contended, that as the Defendant never signed the agreement, nor had ever attained under it the chief object which he proposed to attain, the agreement must be considered a nullity as far as regarded him; and then, the Plaintiff being entitled to sue for nothing but the unascertained value of the land, the jury were at liberty to ascertain and decide what that value was.

Taddy and Vaughan Serjts., in support of the rule, argued that the Defendant was bound by the agreement, though he never signed it, because he had taken a benefit under it (a): if so, the action being on the agreement, the jury could not travel out of it; and the failure to afford the sporting privilege was no bar to the action, because it did not go to the whole consideration.

The Court were of opinion, that an agreement between lessor and lessee was only evidence of the amount of rent to be paid, where the lessee had enjoyed under such agreement; that the lessor in the present instance, having failed to fulfil the agreement in the chief object which had induced the lessee to propose becoming a party to it, the lessee could scarcely be said so to have enjoyed; but that, at all events, the Defendant in an action for use and occupation, as in an action of debt for rent, might shew an eviction of the whole or of part; that, in case of an (a) Co. Litt. 231. a.

1821.

TOMLINSON

ข.

DAY.

eviction

1821.

TOMLINSON

V.

DAY.

eviction of part, the jury must ascertain, independently of any agreement, what the Defendant ought to pay; and that an eviction of part of the subject-matter of the demise (namely, of the exclusive privilege of sporting) having been clearly proved in the present instance, the rule for a new trial must be Discharged.

June 20

The Plaintiff

declared on three bills of

WILLIAM DUNCAN v. SAMUEL HILL, RICHARD
HILL, HENRY WRIGHT, and GEORGE BOLTON
MAINWARING.

IN

N this case, which was tried before Dallas C. J., at the London sittings after Hilary term, a verdict

exchange, in having been found for the Defendants,

three several counts; but,

according to his particular, only sought to recover on the bill set forth

in the first

count. The defence being, that the De

fendants were when the bill

not partners

set forth in

the first count

was drawn, the Plaintiff

tendered in

Lens Serjt., on a former day, obtained a rule nisi for a new trial, on the ground that admissible evidence had been excluded.

Taddy and Lawes Serjts. having subsequently shown cause against the rule,

DALLAS C. J. now delivered the judgment of the Court. (a) This is an action on three several bills of exchange, each being the subject of a distinct and separate count. The first count was on a bill for 12007.; the third count on a bill for 403l. 6s. 6d.; and the fifth count on a bill for 4077. 17s. 9d. The Defend

evidence the other two bills, for the purpose of establishing the fact of the partnership: the evidence having been rejected, on the ground that these bills were not included in the particular, the Court granted a new trial.

(a) The facts of the case, and the arguments on both sides, are so sufficiently stated in the judgment that it was deemed unnecessary to repeat them.

ants

ants applied for a particular of the Plaintiff's demand, which particular was in these words: "This action is brought to recover principal and interest, and expences due for, and in respect of, the bill of exchange in the first count of the declaration mentioned, and the Plaintiff will avail himself of all the counts of the declaration for recovery thereof." On the trial of the cause, the two Hills having suffered judgment by default, and the two Defendants, Wright and Mainwaring, having pleaded the general issue, after the evidence had been given as to the first bill, the Plaintiff offered in proof the two other bills, which were objected to by the Defendants. No evidence was offered to connect the two last bills with the first, as given in payment of a sum remaining due on that bill, or as connected with it in any way whatever, except as after mentioned; and, with the exception of the two Hills, who were the drawers of the first bill, and the acceptors of the two latter, the parties were different on the face of the bills. But the purpose for which it is said they were offered in evidence was this: The defence set up was, that Wright and Mainwaring, who had originally been partners in the stone pipe company, on whose account these bills were stated to have been drawn, had ceased to be so, or were not proved to be such, when the first bill was drawn; and that Samuel Hill and Co. was the firm of the house of the two Hills, carrying on, as wine merchants, a separate trade, to which character these bills might be referred; and, to rebut this defence, these two bills are alleged to have been offered in evidence, to shew a continuation of the partnership at and subsequent to the time when the first bill for 1200l. was drawn, the two latter bills being of a subsequent date, and dated at the same place with the former bill, where the business of the stone pipe company was carried on.

VOL. II.

3 B

It

1821.

DUNCAN

V.

HILL.

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It has been stated, on the part of the Defendants, that the two bills were only offered in evidence in support of the counts, in which they are stated as substantive causes of action; and it is agreed on both sides, that, if so offered, they were properly excluded. But the fact has been correctly stated on the part of the Plaintiff, namely, that they were offered as auxiliary evidence only, and in the manner I have stated; and it is equally true that, so offered, I did not receive them, considering them as excluded by the particular, and therefore objected to by the Defendants.

I thought that the Plaintiff, having expressly declared on three bills, but, by his particular, having confined his right to recover to one bill only, the Defendants had no reason to apprehend that the two bills would be given collaterally in proof, under the general notice ; but that, by all the other counts, was to be understood the common counts, as in the usual way. Supposing no counts had been on the two bills specifically, I should have had no doubt that they might be received as auxiliary evidence, under the common counts; but the peculiarity consisted in their having been originally declared on as distinct and substantive causes of action, and, by the particular, abandoned as such.

My Brothers, however, are of opinion, that, under this particular, the Plaintiff had a right so to apply the two bills; and with this opinion, on final consideration, I agree; and the more especially for this reason, that it appears to me that I ought, at all events, to have received the bills in evidence. If admitted, and they had weighed nothing, they would then have left the case where it was; and, if they had weighed any thing, the Defendants might have moved the Court, as may done in such a case, on an affidavit, stating that they had been misled by the particular, as framed, in which case

be

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