he does not pay rent, he must pay interest only.' But if a likeness must be found, I think, as it was put by Ashhurst, J., in Moss v. Gallimore, a mortgagor is as much if not more like a receiver than a tenant at will: in truth he is not either. He is not a tenant at will, because he is not entitled to the growing crops after the will is determined. He is not considered as tenant at will in those proceedings which are in daily use between a mortgagor and mortgagee, I mean in ejectments brought for the recovery of mortgaged lands. If he were tenant at will, the demise could not be laid on a day antecedent to the determination of the will. But it is every day's practice to lay the demise on a day long before there has been any actual determination of the will, some time back to the time when the mortgage became forfeited, and no objection has ever been made on that account.

And the decision in Partridge v. Bere has not altered the law; for, as Buller, J., said in Moss v. Gallimore, "Expressions used in particular cases are to be understood with reference to the subject-matter then before the Court;" and in Partridge v. Bere the Court said, that a mortgagor in possession was tenant to the mortgagee, not for the purpose of laying down the respective rights of those two parties, but merely to prevent justice being defeated in a claim against a third party by an immaterial variance in the declaration. The plaintiff, there, declaring against the defendant for an injury to his reversion, had alleged that the property injured was in the possession of one Turner as his tenant: it turned out that the plaintiff had become entitled to the reversion under a mortgage from Turner, who remained in occupation: under those circumstances the Court might fairly decide that, as against a wrong doer, Turner might be called tenant to the plaintiff, without deciding that, as against the plaintiff, Turner had any such interest as would entitle him to a notice to quit, or even demand of possession. It was sufficient to satisfy the declaration if he were tenant by sufferance.

Cross. The mortgagor, when permitted by the mortgagee to remain in possession, becomes thereby his tenant at will, and as such entitled, before an ejectment is brought, to be informed of the determination of the mortgagor's will by a demand of possession. To deny him this, would operate with great hardship and injustice; because the mortgagee, by allowing him to remain in possession, impliedly rescinds the strict letter of the contract, and encourages him to sow in the fair expectation that he shall reap. If he be tenant at will, Lord Coke says, "The lessor may, by actual entry into the ground, determine his will in the absence of the lessee, but by words spoken from the ground the will is not determined, until the lessee hath notice." (Co. Lit. 55 b.) In Keech v. Hall, Thunder v. Belcher, 3 East, 449, and other cases which have decided that the mortgagee may eject without notice to quit, the mortgagor was not the person in possession, but some person claiming under him, and, by that circumstance alone, the mortgagor had himself determined the will. But in Powseley v. Blackman, Cro. Jac. 659, in order to support an ejectment against the heir of the mortgagor, the mortgagee entered before the ejectment.

In Smartle v. Williams, 1 Salk. 245, Holt, C. J., says, "Upon executing the deed of mortgage, the mortgagor, by covenanting to enjoy till default of payment, is tenant at will." In Moss v. Gallimore, Ashhurst, J., said, "Where the mortgagor is himself the occupier of the estate, he may be considered as tenant at will; but he cannot be so considered if there is an under-tenant, for there can be no such thing as an under-tenant to a tenant at will. The demise itself would be a determination of the will." And from what fell from Buller, J., in Birch v. Wright, it may be collected, that what he laid down with respect to the mortgagor's interest, was not

meant to apply to cases where he is left in possession by the mortgagee; for he says, " Mr. J. Ashhurst said, in some respects a mortgagee is strictly tenant at will,—but that is not so here, for the mortgagor is not in possession."

Then, Partridge v. Bere is an express and a recent decision that the relation of landlord and tenant subsists between the mortgagee and the mortgagor in possession, and even on a tenancy at will the will must be determined in some way, before an ejectment can be brought: Goodtitle v Herbert, 4 T. R. 680.

Cur. adv. vult.

BEST, C. J. This was an action of ejectment brought by a mortgagee against a mortgagor. By the mortgage-deed, if the principal sum remained unpaid on a given day, it was covenanted that the mortgagee might enter, and if not paid within thirty days from the day fixed for its payment, he was at liberty to proceed to a sale of the estate without the concurrence of the mortgagor.

This action was brought two days after the day on which the mort · gagee had a right to reënter for non-payment, and before any interest had been paid on the money lent. It was insisted at the trial that an ejectment could not be brought until the mortgagee had required the mortgagor to deliver up possession of the estate.

My brother Vaughan, who tried the cause, reserved, for the consideration of the Court, the question, Whether this action could be maintained without a demand of the possession of the estate previous to the service of an ejectment.

It has never yet been decided that it is incumbent on a mortgagee to nake such a demand previous to the commencement of an action of ejectment against the mortgagor. In Partridge v. Bere, which was an action brought by the plaintiff for an injury to his reversion, the Court thought that a mortgagee might describe himself as a reversioner, the mortgagor being in possession of the estate, and said that he was a tenant within the strictest definition of the word. This case comes nearer to the present than any I have been able to find.

But this was not a case between the mortgagee and the mortgagor in which the Courts were called upon to decide what are the rights of the one against the other. The defendant in that case was a wrong-doer, and had, therefore, no right to object to the plaintiff calling himself a reversioner as long as he permitted the mortgagor to be in possession of the land.

It has been argued that the mortgagor is tenant at will to the mortgagee; and, therefore, the latter can maintain no action against the former till that tenancy is determined. Lord Mansfield, in the case of Moss v. Gallimore, said, "That a mortgagor was not properly a tenant at will to the mortgagee, for he is not to pay him rent." In Birch v. Wright, Mr. Justice Buller says, "A mortgagor is not considered as a tenant at will in those proceedings which are in daily use between a mortgagor and a mortgagee; I mean in ejectments brought for the recovery of mortgaged lands."

This opinion of Mr. Justice Buller is directly to the point now in question. The words of Lord Mansfield, "he is not to pay him rent," are very important. The payment of rent countenances a right to the possession of the land; the payment of interest does not; it relates to the debt, and not to the property pledged. A landlord is not, by taking rent, to induce a man to sow the land, and then turn him out before he can

take the crop; and therefore a tenant at will has emblements, or may take the crop for his own use. Co. Lit. 55, b. Lord Mansfield says, in Keech v. Hall, “A mortgagor is not entitled to reap the crop as other tenants at will are, because all is liable to the debt.' A mortgagor resembles a person who has executed a statute or recognizance. Whatever these persons do to give value to the property under pledge, is done for the benefit of the creditor.

In Bardens and Withington's case, 2 Leonard, 54, A. is bound in a statute to B., and sows the land; B. extends the lands, which are delivered to him in execution. It was adjudged, that the conusee shall have the corn sown. The same law in the case of a recognizance.

If the mortgagor is not a tenant at will, then the law relative to tenants at will has no application to this case.

We must look at the covenant he has made with the mortgagee to ascertain what his real situation is. We find from the deed between the parties, that the possession of his estate is secured to him until a certain day, and that if he does not redeem his pledge by that day, the mortgagee has a right to enter and take possession. From that day the possession belongs to the mortgagee. And there is no more occasion for his requiring that the estate should be delivered up to him before he brings an ejectment, than for a lessor to demand possession on the determination of a term. The situation of a lessee on the expiration of a term, and a mortgagor who has covenanted that the mortgagee may enter on a certain day, is precisely the same.

If this situation exposes mortgagors to any hardship, they must guard against it by an alteration in the terms of the mortgage deeds. Mortgagees, however, do not find it to their advantage to enter upon the estates if they can get their interest regularly paid; for from the time that they get possession, their situation is far from desirable, from the constant state of preparation that they must be in to account to the mortgagor whenever he shall be ready to discharge the mortgage-debt.

This circumstance has rendered any security for the mortgagor agains hasty actions of ejectment unnecessary.

The rule for a nonsuit must be discharged.

Rule discharged accordingly.

END OF HILARY TERM.

CASES

ARGUED AND DETERMINED

IN THE

COURT OF COMMON PLEAS,

AND OTHER COURTS,

IN

EASTER TERM,

In the Tenth Year of the Reign of GEORGE IV.— 1829.

The metropolis paving act, 57 G. 3, c. 29, s. 136, has repealed the Clink liberty paving act, 52 G. 3, c. 14, as to the time of commencing actions.

By the 52 G. 3 c. 14, an act for better paving the Clink liberty in the borough of Southwark, the commissioners appointed under the act, are empowered (s. 39) to compensate the occupiers of premises, if they require them to quit, after purchasing the premises under that act.

Section 122 enacts, that no action shall be commenced for anything done in pursuance of that act until twenty-one days' notice thereof shall be given in writing to the clerk or treasurer, or after sufficient satisfaction, or tender thereof, or after six calendar months after the fact committed, for which such action shall be brought.

By the metropolis general paving act, 57 G. 3 c. 29, s. 136, it is enacted, that no action shall be commenced for anything done in execution or pursuance of any local act or acts of parliament relating either exclusively or jointly with any other objects or purposes to the pavement of any parochial or other district within the jurisdiction of that act, until twenty-one days after notice in writing, &c., nor after three calendar months next after the fact may be committed for which such action shall be brought.

But by s. 138 of that act it is enacted, that neither any act or acts relating either exclusively, or jointly with any other objects, to the paving or repairing the pavements of the streets or public places in any parochial or other district within the jurisdiction of that act, shall be thereby repealed.

The plaintiff was in the occupation of a house in the Clink liberty; the defendants requiring the premises for purposes connected with the Clink paving act, paid a compensation to the parties who appeared to them to possess any interest in the same; and considering that the plaintiff had none, gave him notice to quit without any compensation. The plaintiff considering himself to be entitled to something, declined to quit, whereupon the defendants on the 13th of July, entered, and accomplished their objects.

On the 20th of August ensuing, the plaintiff gave them notice of an action of trespass, and commenced this action on the 11th of January, 1828. At the trial before the Chief Baron, last Surrey assizes, it was objected that the action ought to have been commenced within three calendar months pursuant to the 57 G. 3, c. 29, s. 136, which, in that respect at least, it was contended, had repealed the 52 G. 3, c. 14, s. 122, and the learned Chief Baron being clearly of this opinion, the plaintiff was nonsuited; whereupon Andrews, Serjt., now moved to set aside the nonsuit, on the ground that this was in effect an action brought for a compensation; that the compen sation sought, could only be given under the Clink paving act, and, therefore, must still be regulated by the terms of that act, notwithstanding the 136th section of 57 G. 3, c. 29, especially when the 138th section of that act had expressly provided that no local act relating to the pavement should be repealed. If the action were regulated by the Clink paving act, it was commenced in time.

BEST, C. J. Whatever may be the case as to other matters, with respect to the time for suing, the 57 G. 3, c. 29, is express, that for anything done under the local act, the action must be commenced within three calendar months. There is no ground for disturbing the nonsuit.

PARK, J. It has been ingeniously put by the learned Serjeant, that as in this instance the defendants could only proceed under the local act, the time for suing should also be regulated by that act. But when we see that s. 136 of the general act applies to all that is done under the local act, his ingenious fabric falls to the ground.

The rest of the Court concurred.

Rule refused.

KNIGHT v. HUNT.- p. 432.

Plaintiff had refused to sign an agreement to receive of his debtor a composition of 10s. in the pound; but the debtor's brother offering to supply him with coal to the amount of the other 10s., he signed the composition agreement.

The other creditors knew nothing of the coal transaction.

Plaintiff having been supplied with the coals,

Held, that he could not recover upon a promissory note for the amount of the 10s. composition.

ONE William Watson, being in bad circumstances, proposed to compound with his creditors for 10s. in the pound.

The plaintiff, to whom he owed 3 0l., refused to accede to the proposal. Whereupon John Watson, W. Watson's brother, went to the plaintiff, and spontaneously agreed at his own cost to supply the plaintiff with coals to the amount of 150/. if he would sign the agreement for William Watson's composition. The plaintiff consented, and then signed an agreement, dated October 20, 1818; "To take 10s. in the pound, to be paid with the other creditors." The plaintiff signed the last, but the arrangement about the coals was not known to the other creditors.

For the 10s. in the pound the plaintiff afterwards agreed to take the joint and several promissory note of William Watson, one Aldred, and the defendant, payable on demand, with interest.

The note was given, and bore date November 1, 1818. John Watson furnished the plaintiff with coals to the amount agreed on, and interest was paid on the promissory note.