1822. DOE dem. TENNYSON บ. LORD statute of Elizabeth being a disabling or restraining statute, must be construed strictly; and the intention of the legislature in passing it, was to prevent ecclesiastical and spiritual persons from impoverishing or injuring their YARBOROUGH. Successors, by granting long and unreasonable leases; and although by the third section it is enacted, that "all leases, &c. to be made by any spiritual persons to any persons other than for the term of twenty-one years, or three lives, from the time any such lease shall be made or granted, whereupon the accustomed yearly rent or more shall be reserved and payable during the term, shall be void;" yet the meaning of that clause is to disable them from taking more than the accustomed rent, where the premises had been let, and rent had been ascertained and taken; but in cases where no rent had previously existed, the best or most rent that could be gotten was to be taken; for one of the objects of the statute was to secure a proper revenue to ecclesiastical persons, with which they might support a becoming hospitality. The word accustomed can only refer to an ascertained rent, and a less rent could not be taken. In the case of a power to lease lands, so as there be reserved an accustomed yearly rent or more, such power must be carried into effect according to the intention of those who created it. Goodtitle d. Clarges v. Funucan (a). So here, the intention of the legislature was not only to prevent long leases, but to secure the best rent that could be gotten, where no accustomed rent had been before fixed or paid. If a mere nominal rent had been paid for the land in question, it is quite clear that the lease would be void; but it appears by the original lease, that it was not fenced, but lay open to the common, and that rubbish and other nuisances had been laid thereon. After it was inclosed, the lessor was entitled to rent; and as no rent (a) See verba Lord Mansfield, 2 Doug. 573. had been previously reserved, he was entitled to the best rent that could be obtained for the same; and as the land was altogether unprofitable before the lease in question was made, the vicarage was materially improved by it. Lord Chief Justice DALLAS.-The words of the statute 13 Eliz. c. 10, are, that "all leases by any parson or vicar other than for the term of twenty-one years or three lives, whereupon the accustomed yearly rent or more shall be reserved yearly during the term, shall be utterly void." This can only apply to lands which have been formerly or commonly let or demised. Some rent must have been previously reserved, viz. the accustomed rent or more; and in the Bishop of Hereford v. Scory it was resolved, that the statute of Elizabeth ordains, that no lease shall be good unless warranted by the statute 32 Hen. 8; and that as the former statute appoints that the ancient rent shall be reserved, it is thereby limited and intended that the land should have been usually demised; for otherwise the ancient rent could not be paid for it. That case is precisely in point; and as both the statutes must be taken together, I am clearly of opinion that the lease and confirmations in this case are not binding on the lessor of the plaintiff, and consequently that the verdict found for him at the trial ought not to be disturbed. Mr. Justice PARK.-The true construction of the statute of Elizabeth appears to me to be, that the legislature intended to confine the authority to let, to lands which had been formerly letten, because it is therein expressed, that the accustomed rent must be reserved; and unless accustomably let, there could not be an accustomed rent. The words more or less are relatives; and although this construction may not be favourable to the interests of the parties, yet the Court can decide 1822. DOE dem. TENNYSON v. LORD YARBOROUGH. 1822. DOE dem. TENNYSON v. LORD on the statutes alone, which are the express law of the land. Mr. Justice BURROUGH.-The statutes 32 Hen. 8, and YARBOROUGH. 13 Eliz. must be taken in pari materid, and be construed together. By the first, "so much yearly rent or more as had been most accustomably yielden" was to be reserved; and the same terms were adopted in the latter, which was the disabling or restraining statute. The word "accustomed" would have no meaning whatever if it did not apply to a rent previously reserved; and the chief object of the statute of Elizabeth was to prevent ecclesiastical persons from letting lands for a longer term than twentyone years, or three lives. Mr. Justice RICHARDSON.-The case of the Bishop of Hereford v. Scory was decided on the construction of the statute of Elizabeth, which restrained the enabling statute of Henry 8, and that case appears to me to be not only applicable to, but undistinguishable from the present. Judgment for the plaintiff. Wednesday, An averment in a declaration on a bill of exchange, that when it be THIS BYNNER v. RUSSELL. was an action of assumpsit, brought by the plaintiff, as indorsee, against the defendant, as drawer of a bill of exchange. The first count of the declaration stated that the defendant on the 28th September, 1821, made payable accord- his certain bill of exchange in writing, and directed it to ing to the tenor came due and and effect thereof, to wit, on the 31st March, 1822, it was duly presented for payment: -Held sufficient on a special demurrer, assigning for cause, that the 31st March was on a Sunday; as it was enough to state that the bill was presented when it became payable, according to its tenor, without mentioning any particular day. one George Glover, and thereby required him, six months after the date thereof, to pay to the defendant's order 501. value received. That the defendant endorsed the bill to one Giles, and that he indorsed it to the plaintiff. The plaintiff then averred, that afterwards, and when the said bill of exchange became due and payable, according to the tenor and effect thereof, to wit, on the 31st March, 1822, the said bill was in due manner, and according to the usage and custom of merchants, presented and shewn to Glover for payment thereof, but that he wholly refused to pay the same, of which premises the defendant, on the same day and year last aforesaid, had notice :-By reason of which he became liable to, and promised the plaintiff to pay. The declaration also contained the common money counts. The defendant demurred specially to the first count, and assigned for cause, that the said 31st March, 1822, in the said first count of the said declaration mentioned and specified to have been the day on which the said bill of exchange therein mentioned was presented for payment thereof, was a Sunday, and therefore that the said bill ought not to have been presented for payment upon that day, but that the same ought, in law, to have been presented the day before, viz. on the 30th March in the year aforesaid; and that no sufficient presentment of the said bill for payment was stated in the first count of the declaration. The plaintiff joined in demurrer. The cause came on for argument this day, when Mr. Serjeant Lawes, in support of the demurrer, submitted that as it was special, and assigned for cause that the bill was presented on a Sunday, it was a valid objection, although the averment in the declaration might otherwise be deemed sufficient. But, Per Curium.-The presentment is laid under a 1822. BYNNER v. RUSSELL. 1822. BYNNER V. RUSSELL. videlicet, and is stated to have been made when the bill became due and payable, according to the tenor and effect thereof. That is quite sufficient, as the tenor and effect of the bill will appear upon the face of it. Besides, as it is laid under a scilicet, the precise day is not material, and need not be proved. Even if no day had been mentioned, it would have been enough to have stated that the bill was presented when it became payable, according to the tenor and effect thereof. Judgment for the plaintiff. Mr. Serjeant Pell was to have argued for the plaintiff. Friday, June 21st. COLCLOUGH, Demandant; PRAED, Tenant; SAVAGE, A recovery suf- MR. Serjeant Bosanquet, on a former day in this Term, fered seventy years since, cannot be amended by inserting an ad vowson, although it was omitted by mis take, and had formed part of moved that this recovery, which had been suffered in Trinity Term, 1758, might be amended, by inserting the words "the advowson of the rectory of the church of Little Cumberton." He founded his motion on an affidavit, which stated that the advowson formed part of the estate intended to pass by the recovery; that it was purchased in the year 1741, and was properly described as without an aff. an advowson in the deed to make a tenant to the præcipe; that it was intended to pass by the recovery, but was omitted by mistake; and that it had formed part of the estate since it was suffered, to the present time. the estate since the recovery was suffered; davit, stating how the presentations had time to the application for the amendment. gone from that But the Court required an affidavit to shew how the presentations had gone, from the time the recovery was suffered, and observed that they had lately done so in a case in which Sir Godfrey Webster was the vouchee; and on the affidavit being now produced, the amendment was Allowed. |