1832. SMITH V. WALTON. one the yearly rent of 37. 10s., payable half yearly, that is to Plea, non tenuit modo et formá, and issue joined thereon. Upon this issue a jury having found that the rent was payable at Old Martinmas, a verdict was entered for the Plaintiff, which, by leave of the Judge who tried the cause, Wilde Serjt. obtained a rule nisi to set aside, and enter a verdict for the Defendants instead. Jones Serjt. shewed cause in the last term. Although, upon a parol demise with rent payable at Lady-day, evidence of the custom of the country is admissible to shew that by Lady-day the parties meant Old Lady-day, Doe d. Hall v. Benson (a), yet it has been holden that a lease of lands by deed since the new style, to hold from the feast of St. Michael, must be taken to mean from New Michaelmas, and can not be shewn by extrinsic evidence to refer to a holding from Old Michaelmas. Doe d. Spicer v. Lea. (b) Now a plea must receive the same construction as a deed; and the Defendants having pleaded that the rent was payable at Martinmas must be taken to have pleaded that it was payable at New Martinmas, the words, "to wit, on the 23d of November," being mere surplusage. But the Plaintiff having proved, and the jury having found, that the rent was really reserved, payable at Old Martinmas, the avowry (a) 4 B. A. 588. (b) 11 East, 312. affords affords no warrant for the distress, and the verdict for the Plaintiff must stand. 1832. SMITH บ. As there are two Martinmasses, one which falls on the 11th, and one on the 23d of November in every year, the words, "to wit, on the 23d of November," are a material part of the plea, inserted for the express purpose of preventing ambiguity, and therefore cannot be rejected as surplusage. If the Defendants had avowed for a rent payable at Old Martinmas, they would have been entitled to the verdict. It is the same thing, but expressed with more precision, to say the rent was payable November 23d. (a) Cur. adv. vult. TINDAL C. J. The question in this case arises upon an avowry and cognizance by the Defendants, in which they allege, that the Plaintiff, for one year and a half next before and ending at Martinmas 1830, to wit, on the 23d day of November 1830, held and enjoyed the place in which, &c. as tenant thereof to the avowant by virtue of a certain demise thereof to the Plaintiff made, at and under the yearly rent of 31. 10s. payable half yearly, that is to say, at Whitsuntide and Martinmas in every year; and because the sum of 5l. 5s. of the rent aforesaid for the space of one year and a half ending as aforesaid at Martinmas, to wit, on the 23d day of November 1830, and from thence, &c. was due and payable, therefore the Defendants avow and acknowledge the distress made. To this avowry and recognizance there was a plea in bar, that the Plaintiff did not hold modo ac formá; and upon the trial of an issue joined on this plea the jury found that the rent was payable at Old Martinmas, and a verdict was entered for the Plaintiff. A motion has been made to set aside this verdict, and (a) But see Houlden v. Fasson, 6 Bingh. 424. VOL. VIII. R to WALTON. 1832. SMITH บ. WALTON. to enter a verdict for the Defendants, by leave of the learned Judge who tried this cause; and, after hearing argument against and in support of the rule, the majority of the Judges who heard this argument think the present verdict ought to stand. The case of Doe d. Spicer v. Lea appears to them to be decisive upon the present point. There it was held, that since the existence of the new style sanctioned by act of parliament, a lease by deed, to hold from the feast of St. Michael, must be taken to mean New Michaelmas; and that extrinsic evidence is not admissible to shew that it means a holding from Old Michaelmas. And we think where there is an allegation upon the record that the tenant holds at a rent payable half yearly, that is to say, Whitsuntide and Martinmas in every year, the same rule which governs the construction of a deed, must govern the construction of a plea, and that it can only be understood to mean New Martinmas, there being only one day set down as Martinmas in the calendar which forms part of the statute for the alteration of the style. It is true, that in another part of the avowry, distinct from the allegation of the terms of the tenancy, the Defendants state the year's rent for which the distress was taken, to be for a year ending at Martinmas, “to wit, on the 23d November." But we think ourselves. bound to take notice that Martinmas falls on the 11th of November in every year, by the enactment of the statute above referred to, and that it cannot fall on any other day; and, consequently, that all which follows under the videlicet, which is inconsistent with and contrary to such enactment, must be rejected. Evidence, no doubt, is admissible in the case of a parol taking at Martinmas, generally, to shew whether the day of taking was intended to be calculated according to the new or old style; indeed, such evidence was admitted in this very case for the purpose of shewing that that the rent was payable at Old Martinmas, which the jury found to be so. But no case can be found in which, where a party pleads upon the record that the taking was from Martinmas, he has been allowed to shew that he meant by that pleading Martinmas according to the old style. My brother Gaselee thinks the words under the vide licet amount, in effect, to a distinct averment, that the word Martinmas in the pleading so explained, means the feast of Old Martinmas which falls upon the 23d of November; and that the allegation in the first part of the avowry, that the holding was for a period ending at Martinmas, viz. "the 23d of November;" and again, a similar allegation in the latter part of the pleadings, shew that the word Martinmas mentioned in the reservation of rent, must be intended to apply to the same day, that is, Old Martinmas. He agrees with the rest of the Court in the opinion, that no extrinsic evidence ought to be received to explain the record. 1832. SMITH V. WALTON. Rule discharged. DOE v. HARVEY. TRESPASS for mesne profits. At the trial before Alderson J., at the last Somerset assizes, the Plaintiff, after proving that the Defendant Jan. 31. Where a party holds land under a writ ten agreement, parol evidence cannot be had occupied the premises in question from May 1829 to May 1830, offered in evidence a judgment in an ejectment brought for the same premises by the Plaintiff the fact under in this action against Simon Payne (a), and called as a (a) See Doe v. Whitcombe, ante, 46. the received of whom he came into possession. 1832. DOE v. the son, had put the defendant in possession. It appearing, however, that this had been done under a written agreement, which was not produced, it was objected, on behalf of the Defendant, that the witness could not, while that instrument existed, by parol evidence, disclose under whom the Defendant held, and that without evidence that the Defendant held under Payne, the judgment against Payne could not be produced against the Defendant. And the learned Judge being of this opinion nonsuited the Plaintiff. Wilde Serjt. obtained a rule nisi to set aside this nonsuit, against which rule Stephen Serjt. argued last term that the written agreement was the best evidence to shew under whom the Defendant held, and that the agreement being in existence and not produced, parol evidence to that point was properly excluded. Then, with respect to the judgment against Payne, he contended, as in Doe v. Whitcombe, and on the authorities there cited, that the Defendant not having been shewn to be party or privy, the judgment was no evidence against him. Wilde. Parol evidence of any of the stipulations in the written agreement could not be received; but it was competent to the Judge to admit evidence of facts independent of the agreement; as, who professed to be landlord and received the rent. Those were facts which could not alter or interfere with any stipulation in the agreement, and might, therefore, be proved by other evidence. In R. v. Holy Trinity, Hull (a), it was held that parol evidence of the fact of tenancy was admissible, although the tenant held under a written. (a) 7 B. & C. 611. agree |
