will stand on its own peculiar ground, which is, that an assignment of a lease taken by way of pledge or security, differs, in this respect, from an absolute assignment, so that entry and possession are necessary to make such assignee liable. On the other hand,

three cases in equity have been cited precisely similar to the present case. In the case of Sparkes v. Smith, the Court refused, on bill, to compel an assignee of a term on mortgage to discover his assignment; the object of the lessor in requiring it, being, to make the assignee liable to the covenants of the mortgagor, although he had not taken actual possession of the premises. The Court said, it was the mortgagee's folly to take an assignment of the whole term, whereby he subjected himself to the covenants in the original lease, instead of taking a derivative lease of all the term, but a month, week, or day; yet, as he was only mortgagee, and never in possession, they would not assist the Plaintiff, but left him to recover at law as well as he could. In Pilkington v. Shaller, 100l. were lent by way of mortgage upon an assignment of a building lease, and the mortgagee never entered or took possession, but lost the money lent. The Defendant in equity having recovered against the mortgagee, as assignee, the rent reserved on the lease, the bill was to be relieved against the recovery at law; and the Court dismissed it, saying, the mortgagee was ill advised to take an assignment of the whole term. In both cases the principle of law, that an assignee of a whole term is subject to the covenants of the original lease, is fully admitted. The different event of the application arose, merely, from the parties having changed sides on the applications to the (a) Court.

(a) Powell on Mortgages, c. iv. p. 80. 1st ed. vol. I. p. 233. 235. 4th ed.

The

1

1819.

WILLIAMS

V.

BOSANQUET.

1819.

WILLIAMS

2.

The third case, Lucas v. Comerford, was bill by executors of lessor against the depositary of a lease to secure a debt, for specific performance of a covenant in the lease BOSANQUET. to rebuild houses. Lord Thurlow said it was no matter whether the Defendant took the lease as a pledge or as a purchase, he could not take the estate without taking the burthen (a). The case of Eaton and Jaques stands, then, as a single case, opposed as I have stated; but, if there were no authority against it, is it upon principle to be supported? The assignment of a lease for the whole term, whether absolute, or subject to a proviso for reassignment in a certain event, is, as far as concerns the interest, to be transferred precisely the same; and the assignment, as in the present case, is of all the right, title, and interest, of the assignor in the lease assigned. So completely does the interest pass from the one, and vest in the other, that there is a covenant to re-assign when the money shall be repaid. The whole interest is therefore assigned, and the whole is to be re-assigned. It vests then absolutely, till such re-assignment, in the party who is to re-assign; and is not less absolute, because, by agreement between the immediate parties, to which the lessor is no party, the assignor may, in an event which may or may not happen, entitle himself to a re-conveyance by the money being repaid. In the intermediate time, or till such re-assignment, the assignee stands in the situation of the assignor, and is, as against the lessor, subject to all the liabilities created by the lease; and, if the one were liable without entry and possession, the other is equally so; and, that the former would be liable, has, I conceive, been fully shewn. But, in this case, as it seems to me, there can be no doubt whatever; for, here, the special verdict finds, that the

(a) 1 Ves.jun. 235.

money

1819.

WILLIAMS

V.

money was not paid on or before the day when, if not paid, the assignment was to become absolute: it did, therefore, become absolute; so that this is, strictly, the case of an absolute assignment, and subject, there- BOSANQUET. fore, to all the rules which affect it as such. It has been further said, that there is no privity of estate, because possession was not taken; nor privity of contract, in respect of which the original lessee would be liable without possession. But it is not so; for there is privity of estate, if legal possession, that is, acceptance of the thing assigned by acceptance of the assignment, be equivalent to actual entry, which it is, if there be justness in the observations already made; and, even as to privity of contract, there is such privity also, for the contract of the lessor is with the lessee and his assigns, and the Defendants here are the assigns of the lessee: it is, therefore, a contract between the lessor and the assignee, that is, in this case, between the Plaintiff and the Defendants. The cases of bankruptcy, which have been alluded to, stand on a different ground. In the case of actual acceptance, assignees would, of course, be liable, and they may accept without entry; but the assignment is not compulsory on them to take: if they do not take, they will not be liable, notwithstanding the assignment; but, if they elect to take, then it is their taking, but not singly by the assignment: they become liable as assignees. To the cases of Dale v. Westerdell, and Stone v. Evans, it will be sufficient merely to refer, as shewing the disapprobation which Lord Kenyon entertained and expressed of the decision in Eaton v. Jaques ; and to this it is hardly necessary to add, what is well known, that it did not meet with the approbation of the profession at large, at the time. Remaining, however, as an authority, though a single authority, when this present case came before this Court on demurrer, it was

directed

1819.

WILLIAMS

ข.

directed by the late Chief Justice to be turned into a special verdict, that we might have it argued before all the judges, and collect their opinion on the point. This BOSANQUET. has accordingly been done; and we have authority to say, that, in the opinion of a great majority, Eaton v. Jaques is not to be considered as having been rightly decided. This case being therefore removed out of the way, and the law being otherwise clear, the consequence is, that the Plaintiff is entitled to judgment.

My Brother Richardson not having been present at the argument, declines giving any opinion.

END OF EASTER TERM.

CASES

ARGUED AND DETERMINED

IN THE

Court of COMMON PLEAS,

AND

OTHER COURTS,

IN

Trinity Term,

In the Fifty-ninth ear of the Reign of GEORGE III.

1819.

Lord RIVERS v. PRATT and TROWBRIDGE.

June 15.

of chace, in

volving documentary

THIS was an action of trespass, for breaking and In a cause conentering the Plaintiff's chace, and killing deer cerning rights therein. The Defendant pleaded not guilty; and the question to be tried, was, whether certain lands in the parish of Tollard Royal, in Wiltshire, were within the chace called Cranborn Chace. In a former case, of Lord Rivers v. King (a), a jury, after a trial that lasted two days, had decided, that lands in the parish of Alvediston, in Wiltshire, were not within Cranborn chace; and the

evidence of great length and antiquity, together with much oral

testimony, the Court would not grant a trial at bar, a

new trial having recently been refused in K. B., where another Defendant, who had contested the same rights, had obtained a verdict.

·`(a) Decided in Trinity term, 1818, K.B.

Court