ተ. WALTON. HITCHMAN present case to say, that that case establishes that he may treat his mortgagor, as against a stranger, as his tenant at will: he is not bound to do so, and therefore it is that he may bring ejectment against him as a trespasser, without a previous demand of possession. This issue, therefore, is made out in favour of the plaintiff. And even if the defendant could have shown that the fixtures belonged to him as assignee, he would still be without defence. unless he had pleaded specially. [ *416 ] We then come to the count in trover. Now the ground on which the rule was granted was, that the fixtures in question were supposed to have been put up after the date of the mortgage; it now appears, however, that they were affixed before the mortgage was granted, and therefore the point on which the rule was granted does not *arise. There is no doubt that by a conveyance, whether to a purchaser or to a mortgagee, fixtures annexed to the freehold will pass, unless there be some words in the deed to exclude them. Colegrave v. Dios Santos is an authority to that effect in the case of a purchaser, and Longstaff v. Meagoe in the case of a mortgagee. Then it is said that, under the terms of the original lease to the bankrupt, all the fixtures, as well those which should be afterwards put up during the term, as those which were upon the premises at the date of the lease, belong to the landlord. And I am certainly disposed to think that on the strict construction of the lease it is so, although there can be little doubt that it is contrary to the intention of the parties, who probably had in their contemplation only what are properly called landlord's fixtures, but have omitted to distinguish between the two kinds. The difficulty, however, if any exist, is removed by the decision in Boydell v. M‘Michael, where it was held that a tenant has, during the term, a sufficient interest in the fixtures to entitle him to maintain trover against a third party who wrongfully removes them, although at the end of the term he may be bound to leave them for the use of the landlord. Here, also, that interest, which has passed to the mortgagee of the tenant, enables him during the term to maintain trover, although at the end of the term he is bound to restore them to the landlord: and the measure of damages is the value of all the fixtures; for, ex concessis, he is bound to leave them all on the premises, and therefore he is to be indemnified for the loss of them. GURNEY, B., concurred. Rule discharged. CALVERT v. BAKER (1). (+ Meeson & Welsby, 417-419; S. C. 1 H. & H. 404; 8 L. J. (N. S.) Ex. 40; 2 Jur. 1020; 7 Dowl. P. C. 17.) In an action by indorsee against acceptor of a bill (not stated to be payable at any particular place), it is a good defence, under a plea that the defendant did not accept the bill declared on, that after he had accepted it generally, it was altered without his knowledge, by the addition of a memorandum making it payable at a banker's. The acceptor of a bill, on application to him for payment, answered that the bill had been altered as to the acceptance by being made payable at a particular place; that he never made it payable there, nor elsewhere than at his own house, and that he should take such steps as the law would authorize on the subject; that he had been prepared for payment, and the party might have the money by calling at his house: Held, that this letter was no acknowledgment of a subsisting debt, so as to support a count on an account stated. ASSUMPSIT by the indorsee against the acceptor of a bill of exchange for 401., not stated to be made payable at any particular place. There was also a count on an account stated. Plea to the first count, that the defendant did not accept the said bill of exchange in the declaration mentioned, in manner and form, &c.; to the second count, non assumpsit. At the trial before Alderson, B., at the Middlesex sittings in this Term, the drawer of the bill was called as a witness for the defendant, and proved that the bill, having been in the first instance accepted generally, was subsequently altered by him (the drawer) by the addition of the words "payable at Williams & Co., bankers." The bill, on being presented at Williams & Co.'s, was not paid; and it was proved that on notice being given to the defendant of the dishonour, and application made to him for payment of the bill, an answer in the following terms was received from his attorney: "SIR, Mr. Baker, of Bulbrook, has placed in my hands your letter relative to the dishonour of his bill for 401.: he never made that bill payable at Williams & Co.'s, nor any other place in town, but refused to pay it except at his own house. The bill must therefore have been altered as to the acceptance, and he will take such steps as the law will authorize on the subject. He has been prepared for payment, and the party may have his money by calling at Bulbrook." No application for the money to the defendant at Bulbrook was proved. The jury found that the alteration was made without the (1) See the Bills of Exchange Act, 1882 (45 & 46 Vict. c. 61), s. 64 (2).—R. Ç. 1838. Exch. of Pleas. [417] CALVERT v. BAKER. [418] [ *419 ] defendant's consent, and, under the direction of the learned Judge, found a verdict for the defendant. R. V. Richards now moved for a new trial, on the ground of misdirection: First, it was not competent to the defendant, under the plea of non-acceptance, to set up as a defence that the bill had been thus altered. If he intended to rely on the circumstance that the bill, having been once valid so as to charge him, was afterwards made invalid by the alteration, so as to require a new stamp, that was a matter in confession and avoidance of the contract declared on, and ought to have been pleaded specially: Walter v. Cubley (1). Cock v. Coxwell (2) may be referred to as an authority to the contrary; but there the bill declared on was the bill as altered, viz. in the date; and on its being argued that the alteration ought to have been specially pleaded by the defendant, as in Atkinson v. Hawdon (3), ALDERSON, B., said "He has pleaded it specially, by saying that he did not accept the bill you declared on and produced in evidence, but a different one." (PARKE, B.: On the plea of non est factum, cannot an alteration in the deed after its execution be given in evidence? It may however be said, that this plea is in the present tense; but here the declaration suits the bill as well in the one form as the other; but you do not produce in evidence any bill the defendant ever accepted; he says he never accepted the altered bill.) At all events, the letter of the defendant's attorney was evidence to charge the defendant on the account stated, being an admission that 401. was due from him to the holder of the bill: Highmore v. Primrose (4), Clayton v. Gosling (5). LORD ABINGER, C. B.: The first question is, whether the forged addition to the acceptance makes the acceptance itself a nullity. The plea in substance is, "I did not accept the bill in the manner you charge:" and the plaintiff *proves a bill in the form in which he did not accept it; his plea is therefore made out. As to the other point, the letter contains no acknowledgment of a liability on the bill; the defendant (1) 39 R. R. 739 (2 Cr. & M. 151). (3) 41 R. R. 493 (2 Ad. & El. 628). denies any obligation to pay at the banker's, but says he will pay at his own house if it be presented there. PARKE, B.: I am of the same opinion. In Highmore v. Primrose there was an admission of a subsisting debt between the parties; here the defendant denies any liability to pay, unless after a condition previously performed by the other party. It is quite clear there is here no engagement to pay on request, either express or implied. Rule refused. FOSS v. RACINE, LONG, HARRISON, AND ANOTHER. A collector of taxes cannot break open a house for the purpose of taking a distress for land-tax, under the 38 Geo. III. c. 5, s. 17(1), without the presence of a constable. TRESPASS for breaking and entering the plaintiff's house, and taking his goods. Plea, Not guilty. At the trial before Alderson, B., at the Middlesex sittings in this Term, it appeared that the plaintiff was a weekly tenant to the defendant Long of a house, and became seventeen weeks' rent in arrear; that Long having been called upon by the defendant Racine, who was the collector of land-tax for the district, for a sum of 2l. 11s., due for land-tax in respect of this house, refused to pay it, on the ground that he could get no rent, and sent Racine, in company with the other defendant, Harrison (who was a broker employed by Long to distrain on the plaintiff for the rent), to obtain the land-tax from the plaintiff. Racine and Harrison accordingly came to the house, and the former having knocked at the door and demanded the *tax, and obtained no answer, broke open the door, which was locked, and went in. Long immediately afterwards came in and paid Racine the 27. 11s., and having made his distress, the parties withdrew from the premises. It was contended for the defendants, that, under the statute 38 Geo. III. c. 5, s. 17, the defendant Racine was authorized to break open the door for the purpose of levying for the land-tax. The learned Judge thought otherwise, but gave the defendants leave to move to enter a nonsuit, and a verdict passed against the three defendants above named. (1) See now the Taxes Management Act, 1880, s. 86. Platt now moved accordingly: The question in this case depends on the construction of the Land Tax Act, 38 Geo. III. c. 5, s. 17, which enacts, that, on making a distress for arrears of land-tax, it shall be lawful for the collectors "to break open, in the day time, any house, and, upon warrant under the hands and seals of any two or more of the commissioners, any chest, trunk, box, or other thing where any such goods are, calling to their assistance the constable, tythingman, or headborough, within the counties ridings, cities, towns, or places, where any refusal or neglect shall be made:" and the question is, whether this last provision is to be confined to the case of breaking open a chest, &c. within the house, or to be extended. also to the case of breaking open a house, so as to render it necessary in either case to have the presence of a constable. If it be construed in the latter sense, the rest of the section would go to show that a distress cannot ever be made without a constable being present. LORD ABINGER, C. B.: The clause is certainly ambiguous, but I think the latter words override the whole of it. Or if the words "and upon warrant, &c., any chest, &c., where any such goods are," be placed within a parenthesis, it seems as if the party is authorized by his general *warrant to break open any house, calling to his assistance the constable or headborough, in order to keep the peace, but requires a special warrant to break open any chest, &c., in which the goods are. PARKE, B.: I also think that the latter words override the whole clause. There is more reason for requiring the presence of a constable when the house is broken open, than in the other case. Rule refused. ELIZABETH BARKER, WILLIAM BRUTON WROTH, (4 Meeson & Welsby, 421-432; S. C. 8 L. J. (N. S.) Ex. 5.) A testator devised lands to his wife E. B., his daughter A. W., and W. B. W. her husband, and their heirs, to hold to them and their heirs, on trust, to permit and suffer his said wife E. B. to receive and take all the net rents and profits during her life to her own use, subject to a rent-charge |