that where a defendant has been shewn to be in possession, the continuance of the tenancy is to be presumed until the contrary appears; and by Bull v. Sibbs (a) and Harding v. Crethorn (b) it is established that for the purposes of an action by the lessor, the occupation of an under-tenant is the occupation of the lessee. A rule nisi having been granted, Wilde Serjt. shewed cause. The evidence is not sufficient to raise a presumption that the Defendant is tenant. From the circumstance of his having made a payment on a precise quarter day, and having never been on the premises since, the presumption is rather the other way. In Freeman v. Jewry (c), A. being in possession under a lease for years, underlet the premises from year to year to the defendants, who knew the extent of his interest; the plaintiff afterwards took a lease of the same premises, expectant on the determination of A's term; and the defendants, after the determination of A.'s term, continued in possession for a quarter of a year, when they paid the rent for that period, and claimed to give up the premises; and it was held, in an action for use and occupation for a subsequent period, that there was no evidence of a tenancy continuing beyond that quarter of a year. In Ward v. Mason the only question was, whether there were any facts to go to the jury in discharge of the defendant. In the present case the occupation and payment by Lewis, coupled with the absence of the defendant, were sufficient to warrant the direction of the Judge and the finding of the jury. In Harland v. Bromley it did not appear that the defendant was out of possession. (a) 8 T. R. 327. (b) 1 Esp. 57. (c) 1 M. & M. 19. Jones. 1832. WOODCOCK V. NUTH. 1832. WOODCOCK V. NUTH. Jones. In Freeman v. Jewry, the defendants had claimed to give up the possession at the end of the term, and the premises remained unoccupied. So in Hall v. Burgess (a), a tenant, who paid rent half yearly, having quitted at the end of a year, and the landlord having relet the premises to a new tenant before another half year expired, it was held he could not recover from the old tenant for the interval between his quitting and the entry of the new tenant. But here the Defendant is shewn to have been in possession and to have paid rent; and there is nothing to shew that Lewis was not his servant or under-tenant, or that the Plaintiff had accepted Lewis as tenant instead of the Defendant. TINDAL C. J. There is no reason for setting aside this verdict. It is not necessary to determine whether at the expiration of his term Nuth became tenant from year to year. Assuming that he did, which is the most favourable supposition for the Plaintiff, the question is, whether there was any evidence of a new tenancy. The Plaintiff contends there was none; but I think there was enough to be left to a jury, and to warrant the conclusion they have drawn. The premises in question were originally let to Nuth, and at Midsummer-day 1829, precisely a quarter after his term had expired, he paid a quarter's rent, deducting 101. for certain repairs. That is the only time he has been seen on the premises, since the term expired, and the rent has never since been paid upon the precise quarter-day. What is the reason of this difference? It is natural that, during the continuance of a tenancy, the lessor should not be rigid to exact payment on the precise day when it becomes due; it is natural that, (a) 5 B. & C. 332. See also also Bishop v. Howard, 2 B. & C. 100. when when the parties come to a settlement upon the tenant's quitting, the settlement should take place upon a quarter day. It is also to be observed, that Nuth, ever since the payment in question, has lived at Hammersmith, and that all the subsequent payments have been made by Lewis or his wife. It is true the witness says he received them on account of Nuth, but he gives no reason for such an assertion, which seems to have been no more than an inference of his own. That being so, and no application having been made to Nuth, although the landlord knew he was living at Hammersmith, I cannot say there was not evidence to go to a jury that Lewis was really the tenant. BOSANQUET J. I am of the same opinion. The case has gone to the jury with the consent of the Plaintiff's counsel, and the question is, whether there was reasonable evidence to support the verdict, the Plaintiff insisting that Nuth was his tenant during the time for which rent has been demanded. No doubt, payment of rent is primâ facie evidence of a continuing tenancy, but it is evidence which may be rebutted; and what are the facts here? Nuth makes a payment of rent, deducting something for repairs, at a precise quarter day; and it must be taken that he quitted the premises on that day, for he is never seen there afterwards; but the business of a publican is from that time carried on in the premises by Lewis, who pays the rent for four successive quarters. During this time Nuth's residence was known to the Plaintiff, and yet he was never applied to. As to the collector's saying that he received the rent on account of Nuth, that appears by the learned Judge's report to have been his own inference, and not a statement grounded on any fact within his knowledge. VOL. VIII. N ALDERSON 1832. WOODCOCK V. NUTH. 1832. WOODCOCK v. NUTH. ALDERSON J. If this case depended on the principle said to have been laid down by Lord Tenterden in Freeman v. Jewry, I should pause before I gave it my assent. But it is not necessary to decide that point; for though under some circumstances a man may become tenant by act of law, the lessor may afterwards accept another tenant in his stead. The Plaintiff's case here rests altogether on the testimony of the collector, to which the jury were entitled to give what degree of credit they chose. He thought fit to append to his statement of the receipt of rent the qualification, that he received it on account of Nuth. The jury might believe the payment, and yet see grounds to disbelieve the qualification appended by the witness. PARK J. There is great weight in the circumstance, that the last time Nuth paid rent it was on the exact quarter day; that he was never afterwards seen on the premises, and that the payments of Lewis were at irregular periods. The allegation of the collector, that the money was received from Lewis on account of Nuth, was merely his own inference, unsupported by any fact which he could mention. Rule discharged. Jan. 25. It is no ground for a plea in abate ment, that a Defendant, sued as a Το CANTWELL V. Earl of STIRLING. an action on a bill of exchange, the Defendant pleaded as follows: And the Right Honourable Alexander Earl of Stirling and Dovan, of that part of the United Kingdom of Scotch peer, is also described as having privilege of parliament. Great Great Britain and Ireland called Scotland,-whom the Plaintiff by his said declaration admits to be Earl of Stirling and Dovan, but alleges, that he, the said Plaintiff, sued out his original writ against him as Alexander Humphreys Alexander, calling himself Earl of Stirling; and against whom the Plaintiff has thereupon declared as the Right Honourable Alexander Alexander Earl of Stirling and Dovan, having privilege of Parliament, comes and defends the wrong and injury, and prays judgment of the same writ and declaration thereon founded, because, he says, that he now is, and before and at the time of suing out the said writ was and from thence hitherto hath been Earl of Stirling and Dovan, of that part of the United Kingdom of Great Britain and Ireland called Scotland, and entitled to and has and had privilege of peerage; but he further says that he has not, nor had he on the day of suing out the said writ, or at any time since hitherto privilege of parliament, as by the declaration is above supposed; and this he is ready to verify. Wherefore he prays judgment of the said writ and declaration thereon founded, and that the same may be quashed. Demurrer and joinder. Merewether Serjt. in support of the demurrer. A plea of peerage ought to shew in what manner the peerage was created; and, if the Defendant was not the first peer under that creation, the mode in which the peerage came to and vested in him; but this plea does not even contain any distinct or positive allegation that the Defendant was or is a peer of Scotland. And the Defendant cannot plead in abatement of the writ, or of the declaration in respect of the form of the writ, without craving oyer of the writ. The allegation that the Defendant has privilege of parliament is mere surplusage. And the assertion in the plea, of the Defendant's 1832. CANTWELL V. Earl of STIRLING. |