Page images
PDF
EPUB
[merged small][ocr errors][merged small][merged small][merged small]

the tenancy at will being deemed to have determined at Whitsuntide, 1819? In what better situation can he be, he having been in possession either as a mere trespasser or as a tenant at sufferance? It is admitted that he would have had no title had the jury *found that his subsequent occupation was under a new tenancy at will. But how would this at all have affected the new right of entry, which had accrued in April, 1839? An attempt was made to do away with the effect of what there happened, by resorting to sect. 10 of the statute, which enacts "that no person shall be deemed to have been in possession of any land within the meaning of this Act merely by reason of having made an entry thereon." But this evidently applies to a mere entry, as for the purpose of avoiding a fine, which may be made by stepping on any corner of the land in the night time and pronouncing a few words, without any attempt or intention or wish to take possession. In the present case, possession was actually taken by the overseers animo possidendi: and whether possession was retained by them an hour or a week must for this purpose be immaterial. They were lawfully in of their fee simple title; and by nothing that had previously happened could their right, in respect of the Statute of Limitations, be at all prejudiced.

A number of cases were cited in the argument, to show that, if, after the determination of the tenancy at will independently of the statute, the tenant continues in posession at sufferance till the expiration of twenty-one years from the commencement of the tenancy, the statute is a bar. We do not consider it necessary on this occasion to examine these cases: and it may be too late now to consider, except in a court of error, whether, where the tenant has remained in possession continuously for twenty-one years, the tenancy at will being determined during that time by an act of the landlord without his actually having been in possession, there be any ground for the distinction as to the operation of the statute between a subsequent tenancy at sufferance and a new tenancy at will, which is allowed to create no bar. But, without conflicting with any prior decision, we think that in this case, by reason of the possession of the overseers in April, 1839, we are bound to decide in their favour. If it were assumed that a tenancy at will cannot now subsist for more than one year, and that a right of entry in consequence did accrue to the overseers at Whitsuntide, 1819, it is quite clear that a new and additional right of entry accrued to them in April, 1839; and it is equally clear that this is the right of entry which they must be supposed to have exercised in July, 1852. Had

there been an issue here, as to whether the defendants entered within twenty years next after their right of entry first accrued, although they should be supposed to have had a right of entry at Whitsuntide, 1819, still, according to our recent decision in Keyse v. Powell (1), the right of entry relied upon by them in pleading must be taken to be that which accrued in April, 1839; and the defendants would be entitled to a finding that it first accrued to them within twenty years.

We are therefore of opinion that the verdict for 201. damages to the plaintiff in respect of the trespass to the cottage must be set aside, and that the issues depending on the title to the cottage must be found for the defendants.

[merged small][ocr errors][merged small]

Rule accordingly.

REG. v. THE MAYOR OF NEW SARUM.

(2 El. & Bl. 654-669; S. C. 22 L. J. M. C. 155; 17 Jur. 934.) [Maintenance of prison by municipal corporation: see now Prisons Act, 1877 (39 & 40 Vict. c. 42), ss. 3, 4, 5, and 16.]

1853. June 25.

RE THE EARL OF HARRINGTON.

(2 El. & Bl. 669–678; S. C. 22 L. J. Q. B. 460; 17 Jur. 1029.) [County court jurisdiction: see now County Courts Act, 1888 (51 & 52 Vict. c. 43), s. 59; County Courts Act, 1903 (3 Edw. VII. c. 42), s. 3.]

1853. June 25.

HOCHSTER v. DE LA TOUR (2).

(2 El. & Bl. 678-694; S. C. 22 L. J. Q. B. 455; 17 Jur. 972; 22 L. T. O. S. 171.) Declaration on an agreement to employ plaintiff as a courier, from a day subsequent to the date of the writ: averment that plaintiff, from the time of the agreement, till the refusal by defendant after mentioned, was ready and willing to perform his part of the contract: Breach, that, before the day for the commencement of the employment, defendant refused to perform (1) Ante, p. 464, 475.

(2) Appr. Frost v. Knight (1872) L. R. 7 Ex. 111, 41 L. J. Ex. 78; Mersey Steel and Iron Co. v. Naylor (1884) 9 App. Cas. 434, 443, 53 L. J. Q. B. 497; Ellis v. Pond [1898] 1 Q. B. 426, 439, 458, 67 L. J. Q. B. 345, C. A.; foll. Roper v. Johnson (1873) L. R. 8 C. P. 167, 176, 42 L. J. C. P. 65; applied, Wilkinson v. Verity 1871) L. R. 6 C. P. 206, 210, 40 L. J.

C. P. 141; dist. Churchward v. Reg.
(1865) L. R. 1 Q. B. 173, 208; Ex
parte Tondeur, Re Agra Bank (1867)
L. R. 5 Eq. 160, 164, 37 L. J. Ch. 121;
Metcalfe v. Britannia Ironworks Co.
(1877) 2 Q. B. D. 423, 428, 46 L. J.
Q. B. 443; Johnstone v. Milling (1886)
16 Q. B. D. 460, 467, 474, 55 L. J.
Q. B. 162; Synge v. Synge [1894] 1
Q. B. 466, 471.—A. C.

1853. June 25.

[678]

HOCHSTER

v.

DE LA TOUR.

[ *679 ]

[ *680 ]

the agreement, and discharged plaintiff from performing it, and wrongfully wholly put an end to the agreement. On motion in arrest of judgment:

Held, that a party to an executory agreement may, before the time for executing it, break the agreement either by disabling himself from fulfilling it, or by renouncing the contract; and that an action will lie for such a breach before the time for the fulfilment of the agreement. That it sufficiently appeared, on the face of this declaration, that there was on the part of defendant, not merely an intention to break the contract, of which intention he might repent, but a renunciation communicated to plaintiff, on which plaintiff was entitled to act; and consequently that plaintiff was entitied to judgment.

DECLARATION: "for that, heretofore, to wit on 12th April, 1852, in consideration that plaintiff, at the request of defendant, would agree with the defendant *to enter into the service and employ of the defendant in the capacity of a courier, on a certain day then to come, to wit the 1st day of June, 1852, and to serve the defendant in that capacity, and travel with him on the continent of Europe as a courier for three months certain from the day and year last aforesaid, and to be ready to start with the defendant on such travels on the day and year last aforesaid, at and for certain wages or salary, to wit" 10l. per month of such service, "the defendant then agreed with the plaintiff, and then promised him, that he, the defendant, would engage and employ the plaintiff in the capacity of a courier on and from the said 1st day of June, 1852, for three months" on these terms; "and to start on such travels with the plaintiff on the day and year last aforesaid, and to pay the plaintiff” on these terms: averment that plaintiff, confiding in the said agreement and promise of the defendant, "agreed with the defendant' to fulfil these terms on his part," and to be ready to start with the defendant on such travels on the day and year last aforesaid, at and for the wages and salary aforesaid." That, "from the time of the making of said agreement of the said promise of the defendant until the time when the defendant wrongfully refused to perform and broke his said promise, and absolved, exonerated and discharged the plaintiff from the performance of his agreement as hereinafter mentioned, he the plaintiff was always ready and willing to enter into the service and employ of the defendant, in the capacity aforesaid, on the said 1st June, 1852, and to serve the defendant in that capacity, and to travel with him on the continent of Europe as a courier for three months certain from the day and year last aforesaid, and to start with the defendant on such travels on the day and year last aforesaid, *at and for the wages and salary aforesaid; and the plaintiff, but for the breach by the defendant of his said

HOCHSTER

[ocr errors]

promise as hereinafter mentioned, would, on the said 1st June, 1852, have entered into the said service and employ of the defendant in DE LA TOUR. the capacity, and upon the terms and for the time aforesaid: of all which several premises the defendant always had notice and knowledge: yet the defendant, not regarding the said agreement, nor his said promise, afterwards and before the said 1st June, 1852, wrongfully wholly refused and declined to engage or employ the defendant in the capacity and for the purpose aforesaid, on or from the said 1st June, 1852, for three months, or on, from or for, any other time, or to start on such travels with the plaintiff on the day and year last aforesaid, or in any manner whatsoever to perform or fulfil his said promise, and then wrongfully wholly absolved, exonerated and discharged the plaintiff from his said agreement, and from the performance of the same agreement on his the plaintiff's part, and from being ready and willing to perform the same on the plaintiff's part; and the defendant then wrongfully wholly broke, put an end to and determined his said promise and engagement: " to the damage of the plaintiff. The writ was dated on the 22nd of May, 1852.

Pleas: 1. That defendant did not agree or promise in manner and form, &c. conclusion to the country. Issue thereon.

2. That plaintiff did not agree with defendant in manner and form &c. conclusion to the country. Issue thereon.

3. That plaintiff was not ready and willing, nor did defendant absolve, exonerate or discharge plaintiff from being ready and willing, in manner and form &c.: conclusion to the country. Issue thereon.

4. That defendant did not refuse or decline, nor wrongfully absolve, exonerate or discharge, nor wrongfully break, put an end to or determine, in manner and form &c.: conclusion to the country. Issue thereon.

On the trial, before Erle, J., at the London sittings in last Easter Term, it appeared that plaintiff was a courier, who, in April, 1852, was engaged by defendant to accompany him on a tour, to commence on 1st June, 1852, on the terms mentioned in the declaration. On the 11th May, 1852, defendant wrote to plaintiff that he had changed his mind, and declined his services. He refused to make him any compensation. The action was commenced on 22nd May. The plaintiff, between the commencement of the action and the 1st June, obtained an engagement with Lord Ashburton, on equally good terms, but not commencing till 4th July. The defendant's counsel objected that there could be no

[681]

HOCHSTER

v.

breach of the contract before the 1st of June. The learned Judge DE LA TOUR. Was of a contrary opinion, but reserved leave to enter a nonsuit on this objection. The other questions were left to the jury, who found for plaintiff.

[ *682 ]

Hugh Hill, in the same Term, obtained a rule nisi to enter a nonsuit, or arrest the judgment. In last Trinity Term (1),

Hannen showed cause:

The breach laid is, that defendant, before 1st June, refused to employ plaintiff; and the averments of readiness and willingness are confined to readiness and willingness until the time when defendant refused to perform his contract. It is upon these averments that issues are taken; and, as they are unquestionably proved, there is no ground for the motion to enter a nonsuit. But the question which arises on the record is a serious one; and it is, whether in law it is possible to break a contract before the day for its performance comes. The cases relied on by the defendant's counsel will probably be Leigh v. Paterson (2), Phillpotts v. Evans (3) and Ripley v. McClure (4). But no one of these is an authority for the defendant. In Leigh v. Paterson (2) there was a contract by the defendants to supply goods to be delivered in all December. The defendants, on 1st October, announced that they would not so deliver: and, on a writ of enquiry to ascertain the amount of damages, the Secondary ruled that the measure of damages was the difference between the contract price and the market price on 1st October, when the plaintiffs first knew that the defendants would not fulfil their contract. This was held wrong; and it is clear on principle that it was wrong; for the defendants could not by their refusal cast upon the plaintiffs a duty to go at once and purchase goods before the time when they wanted them; and, unless such a duty was cast upon them, the measure of damages was the pecuniary difference between the state the plaintiffs were in, having their money and not the goods, and that in which they would have been had the contract been fulfilled, and they had at the time of delivery paid the money and received the goods; the damages therefore clearly depended on the market price at the time when the goods ought to have been delivered. Phillpotts v. Evans (3) was, as far as the decision went, a precisely (1) June 10th. Before Lord Campbell, Ch. J., Coleridge, Erle and Crompton, JJ.

(2) 20 R. R. 552 (8 Taunt. 540).
(3) 52 R. R. 802 (5 M. & W. 475).
(4) 80 R. R. 593 (4 Ex. 345).

« PreviousContinue »