themselves to be the agents of Paine, the tenant in possession, for the purpose of letting the premises (which information the deponent swore he believed to be true), -that Paine was abroad; the declaration had been served on these parties, and had also been affixed on the door of the premises. He [29] cited Doe dem. Dickens v. Roe (7 Dowl. P. C. 121, 6 Scott, 754), where, in ejectment to recover possession of a chapel, the tenant in possession having quitted the country and not being likely to return, service had been effected on the person in whose custody the keys of the chapel were placed, on the wife of the tenant, and on his servant; and the court granted a rule absolute in the first instance; and Doe dem. Scott v. Roe (6 New Ca. 207, 8 Dowl. P. C. 254), where the tenant in possession having absconded, leaving the key of his house in the hands of a broker, with instructions to let the house; it was held that service of a declaration in ejectment, by delivering a copy to the broker, and fixing a copy on the door of the house, was a sufficient service.

TINDAL C. J. In the case last referred to, it distinctly appeared that the broker, on whom the service was effected, was the agent of the tenant. Here, the fact of agency is only stated upon the authority of the agent himself; and it is the interest of the lessor of the plaintiff to believe the statement so made.

Rule refused (c).

[30] DOE DEM. STANWAY v. ROCK. April 19, 1842.

[S. C. 11 L. J. C. P. 194; 6 Jun. 266: at Nisi Drummond to Sant, 1871, L. R. 6 Q. B. 768. 22 Ch. D. 618.]

Prius, Car. & M. 549. Discussed,
Applied, Sands to Thompson, 1883,

In 1816 A. let B. into possession of lands under an agreement for purchase, which was never completed. B. continued in possession till his death in 1822, without having paid rent. He devised all his real estate to C., his widow, who entered into possession of the premises. Rent was demanded of her in 1827, which she promised to pay, but did not. In ejectment for the premises brought in 1842 by parties claiming under A., it was left to the jury to say whether a tenancy at will had been created between A. and C.,-the action being otherwise barred by the 3 & 4 W. 4, c. 27, s. 7: Held, a proper direction.

Ejectment, for certain shambles in the market place of the town of Wednesbury. At the trial before Patteson J., at the last assizes for the county of Stafford, the only question was, whether the lessor of the plaintiff was barred by the limitation of actions act (3 & 4 W. 4, c. 27). The following facts were proved.

About the year 1816, one Richard Woolrich entered into an agreement for purchasing the piece of land in question from Sir Joseph Scott, Bart. and Mr. Foley, lords of the manor of Wednesbury, for the sum of 301.; and under this agreement Woolrich was let into possession. In January 1817, Woolrich entered into a written contract with one Thomas Butler for the sale of his equitable interest in the premises for 1001. This contract recited the former agreement, and that Woolrich had got no conveyance of the land, and was unable to pay the purchase-money; and that he had erected shambles on the land in question. Woolrich, however, continued in possession till his death, the exact date of which did not appear, but he was buried on the 8th of January 1822. By his will he devised all his real estate (generally) to his widow; and she received the rents of the shambles in question down to her death in 1837. There was no evidence of any payment of rent by Woolrich or his widow to Scott and Foley; but it was proved, that in the year 1827 the latter held a rent day, and sent a message to Mrs. Woolrich, desiring her to come over and pay the rent for the shambles, and that she sent back word that she would come, or send over, presently; [31] but it was not proved that she either went or paid the rent. Mrs. Woolrich made a general devise of all her real estate, equally, among her children by a former marriage with one Rock. After her death the defendant, one of these children, received the rents of the shambles. No rent was ever paid by him to Scott and Foley. In 1836 Butler died, having appointed the lessor of the plaintiff one of his

(c) And see Doe dem. Richard Barrow v. Roe, ante, vol. i. 238, and cases there collected.

executors, and devised and bequeathed to him considerable interests both in his real and personal estates.

In 1839 (after previous negotiations) the representatives of Scott and Foley conveyed the premises in question, in fee, to the lessor of the plaintiff; but no notice was taken in the conveyance of the original contract for sale to Woolrich.

The declaration in the present ejectment was served on the 8th of January 1842, exactly twenty years after the day of Woolrich's burial.

It was contended on the part of the plaintiff that, even supposing the evidence was not satisfactory as to a fresh tenancy having been created between the lords of the manor and Mrs. Woolrich, still, Woolrich having been let into possession under a contract for purchase before the conveyance, the lords of the manor were mere trustees for him; that his widow, claiming under him, was in the same situation; and that the case consequently fell within the provision of the seventh section of the stat. 3 & 4 W. 4, c. 27 (a).

[32] On the part of the defendant it was contended, that Mrs. Woolrich never was tenant to the lords of the manor; that Woolrich, under the circumstances, was merely a tenant at will under them; that his tenancy was determined, at the latest, by his death; and that consequently the action was not brought in time and also that the proviso of the seventh section did not apply. Patteson J. (after consulting Cresswell J.) was of opinion that the proviso applied only to cases of express trusts; and the only question left to the jury was, whether Mrs. Woolrich had become tenant at will to Scott and Foley. The jury found in the negative, and returned a verdict for the

defendant.

Talfourd Serjt. now moved for a new trial, on the ground of misdirection. He renewed the objection taken at the trial, and contended that the right of the lessor of the plaintiff was preserved under the proviso of the seventh section of the act. In Sugden on Vendors and Purchasers, the rule is laid down that "when a contract is made for the sale of an estate, equity considers the vendor as a trustee for the purchaser of the estate sold, and the purchaser as a trustee of the purchase money for the vendor" (vol. i. p. 273, 10th ed.). In the present case, therefore, the lessor of the plaintiff, claiming under the original vendors, is in the situation of trustee for the purchaser and those who claim under him; for, although there was no express trust, there was an implied one, which brings the case sufficiently within the terms of the statute. If the lessor of the plaintiff can avail himself of the equitable relation of trustee and cestui que trust, there has been no adverse possession. In Hall v. Doe dem. Surtees (5 B. & Ald. 687, 1 D. & R. 340), where premises were mortgaged in [33] fee with a proviso for reconveyance if the principal were paid on a given day, and in the mean time that the mortgagor should continue in possession: upon special verdict it was found that the principal was not paid on the given day, but that the mortgagor continued in possession. There was no finding by the jury either that interest had or had not been paid by the mortgagor; and it was held that, upon the finding, it must be taken that the occupation was by the permission of the mortgagee; and consequently that, although more than twenty years had elapsed since default in payment of the money, still the mortgagee was not barred by the statute of limitations. [Coltman J. referred to Howard v. Shaw (8 M. & W. 118).]

At any rate, supposing Woolrich to have been tenant at will when he died, his widow must be taken to be in the same situation, as she claimed under him; she was in by permission of the lords of the manor, under a similar relation. In Doe dem. Bennett v. Turner (7 M. & W. 226), the lessor of the plaintiff, had, in the year 1817, let the defendant into possession of lands as tenant at will, and in 1827 had determined such tenancy by entry upon the land, and cutting and carrying away stone without

(a) Which enacts "That when any person shall be in possession, or in receipt of the profits, of any land, or in receipt of any rent, as tenant at will, the right of the person entitled subject thereto, or of the person through whom he claims, to make an entry or distress, or bring an action to recover such land or rent, shall be deemed to have first accrued, either at the determination of such tenancy, or at the expiration of one year next after the commencement of such tenancy, at which time such tenancy shall be deemed to have determined: provided always, that no mortgagor or cestui que trust shall be deemed to be a tenant at will, within the meaning of this clause, to his mortgagee or trustee."

the tenant's consent; and the court held, that if the tenant was in afterwards by sufferance only, then the twenty years must be calculated from the expiration of the first year after the commencement of the original tenancy at will, viz. in the year 1818; but that, if a new tenancy at will was created between the parties, then the twenty years should be calculated from the expiration of the first year of such new tenancy, viz. in the year 1828. The determination of the first tenancy at will was, in that case, effected by the act of the landlord; here, by the death of the tenant; but if a new tenancy at will [34] was created, then the statute would not begin to run till the end of a year from the commencement thereof, viz. in 1823; and if that were so, the present ejectment was brought in time.

TINDAL C. J. In order to constitute a tenancy at will something must be done by the lessor. It appears to me that it was properly left by the learned judge to the jury to say, whether a tenancy at will had been created between the lords of the manor and Mrs. Woolrich, that being the only fact on which there could be any question in the case.

ERSKINE J. There appears to have been no evidence to shew that Mrs. Woolrich claimed under her husband.

COLTMAN and CRESSWELL JJ. concurring—

Rule refused.

[35] WARD v. KIRKMAN. April 30, 1842.

The plaintiff issued a distringas, which was served on the defendant, together with the usual notice, stating that his goods had been distrained, though in fact he had no goods to distrain upon (a)1; and the sheriff afterwards returned nulla bona.-Held, that the plaintiff was entitled to enter an appearance.

Channell Serjt. moved on behalf of the plaintiff for leave to enter an appearance for the defendant pursuant to the 2 & 3 W. 4, c. 39, s. 3 (b).

On

It appeared from the affidavits that a writ of distringas [36] to compel an appearance, had issued and been delivered on the 30th of March to a sheriff's officer. the 16th of April search was made for the return to the writ, and it was found that the sheriff had returned nulla bona. On the 2nd of April a copy of the distringas, with the usual notice at the foot (a)2, had been served on the defendant personally, and that there were no goods of the defendant's which the sheriff could distrain.

(a)1 It is sometimes necessary to pursue an established form, where its terms are not strictly applicable to the particular case. Thus, "If a man has judgment to be hanged, his land escheats to the lord, though he die before execution; and the writ of escheat should say,-quia suspensus." F. N. B. 144, H.

(b) This section authorizes the court or a judge to order a writ of distringas to be issued, directed to the sheriff, &c., which writ is to be in the form, and with the notice subscribed thereto, mentioned in the schedule (as above) "which writ of distringas and notice, or a copy thereof shall be served on such defendant, if he can be met with, or, if not, shall be left at the place where such distringas shall be executed; and a true copy of such writ and notice shall be delivered together therewith to the sheriff, &c. to whom such writ shall be directed," and if the writ shall be returned non est inventus and nulla bona, and the plaintiff does not intend to proceed to outlawry, and the defendant does not appear, and the court, &c. shall be satisfied that due and proper means were taken to serve and execute the writ, the court, &c. may authorize the plaintiff to enter an appearance for the defendant, &c.

It is not very easy to follow the course of proceeding pointed out by the legislature in this section. It would rather appear that the service of the writ and notice upon the defendant, if he can be met with, is to precede the delivery of the writ to the sheriff: but the notice states, that the defendant's goods have already been distrained by the sheriff. The power to order an appearance to be entered would also seem to be limited to cases where there has been a return of non est inventus and nulla bona; it having been perhaps thought that, if the defendant could be served with the writ of distringas, he might also have been served with the writ of summons.

(a) The form of the notice given in the schedule (No. 3) to the act (2 & 3 W. 4, c. 39) is as follows:

"Mr. C. D.-Take notice that I have this day distrained upon your goods and

TINDAL C. J. Although the notice at the foot of the writ states what, in the particular case, is not strictly true, namely, that the sheriff had distrained upon the defendant's goods, the defendant himself must have been fully aware of the real state of the facts. The notice is sufficiently intelligible to relieve the case from any difficulty.

The other judges concurring-
Rule granted.

[37] SHARP v. LETHBRIDGE. SAME v. N. FORD. SAME v. J. FORD. SAME V. SHERWELL. SAME v. BOON. April 30, 1842.

Where five separate actions were brought on five distinct guarantees of 501. each, given by five several parties for the payment of 2501., the proceedings, in four of the actions, were ordered by a judge at chambers, to be stayed, the defendants consenting to be bound by the verdict in one, provided that such verdict were to the satisfaction of the judge who tried the cause, the plaintiff to be at liberty to apply to open the order after plea, on the ground that the issue would not decide the merits in the other actions:-Held, that this was a proper order.

In the above actions Maule J. at chambers had made the following order, at the instance of the defendants :

"Upon hearing the attorneys, &c., I do order, that all further proceedings in the four last-mentioned actions be stayed until after the trial of the first-mentioned action; the defendants in such four last-mentioned actions hereby consenting to be bound and concluded by such verdict as shall be given in the first-mentioned action; provided the same shall be to the satisfaction of the judge before whom the same shall be tried. The plaintiff to be at liberty, when the defendant in the first-mentioned action has pleaded, to apply to open this order on the ground that the issue in the first-mentioned action will not decide the merits of the others."

It appeared from the affidavits upon which the order was obtained, that the five actions were brought in respect of five separate guarantees for the amount of 501. each, given by the defendants respectively to insure the payment of the sum of 2501. by one Mason to the National Provincial Bank of England (of which the plaintiff was a public registered officer); that the guarantees were not dated or signed on the same day; and that Mason had become bankrupt, and owed the bank 5001.

[38] Bompas Serjt., on behalf of the plaintiff, applied to rescind the learned judge's order, which, he contended, was of a perfectly novel kind. [Erskine J. Is it not like the ordinary case of consolidating actions brought against different underwriters on a policy of insurance (vide post, p. 39 (b))?] There the different actions are brought upon the same instrument: here they are all upon different instruments. [Erskine J. Is there no instance of the consolidation of actions brought upon different policies where the risk was the same (b)?] But in the present instance, the causes of action are as much separate as if they had arisen upon separate promissory notes (c).

day of

chattels in the sum of 40s., in consequence of your not having appeared in the said court to answer to the said A. B. according to the exigency of a writ of summons, bearing date the and that in default of your appearance to the present writ within eight days inclusive after the return hereof, the said A. B. will cause an appearance to be entered for you, and proceed thereon to judgment and execution."

(b) The rule is stated in Archbold's Prac. (p. 830, 4th ed.) to apply to cases "where several actions are brought upon the same policy."

(c) See Mussenden v. O'Hara (Runnington Serjt. Tidd's Pr. 614, 9th ed.), where three actions having been necessarily brought by the same plaintiff against the same defendant, upon three notes of hand, which became due at three different times, the court of K. B. refused to consolidate them. But in Oldershaw v. Tregwell (3 C. & P. 58), where two actions had been brought on two bills of exchange, payable at different times, the action on the first bill having been brought before the second bill was due; Lord Tenterden C. J. said, "These parties need not in this case have been at the expense of two trials. If an application had been made to a judge at chambers, an order might have been obtained to consolidate the actions." In Cunnach v. Gundry

In the books of practice one instance is certainly mentioned where actions brought against different [39] persons for the same assault were ordered to be consolidated; but that does not appear to have been done a second time (a). In the present case, the fact of Mason having become bankrupt may give rise to great difficulties.

TINDAL C. J. If these guarantees were on one piece of paper, and the defendants were severally liable for 501. each, there could have been no doubt as to the application of the principle of the usual practice in actions on policies of insurance; in which, where several parties are liable on the same policy, it has been the established practice that a consolidation rule should be granted (b). The courts, to avoid unnecessary expense both to the plaintiff and defendant in these cases, have been in the habit of staying the actions brought against the different underwriters till one of such actions is decided. And this is not only a most equitable rule, but one that is highly beneficial for the plaintiff; inasmuch [40] as he has the option of selecting the most favourable case to try.

Then the question here is, whether there is any real and substantial difference, because the guarantees are written upon separate pieces of paper. In fact the same question and the same liability arise in each case. The different defendants might have opposed the present order, on the ground that they would possibly have different defences to set up; but it is not easy to see why the plaintiff should do so.

COLTMAN J. This is in fact an order to stay the proceedings in various actions that have been brought upon the same liability, the object being that all should abide the result of one, the plaintiff having the liberty reserved of selecting any one case. I cannot see why he should object to such an arrangement, as no particular inconvenience can result to him from its being carried into effect. It is objected that Mason has become a bankrupt; but the plaintiff may still prove his debt under the fiat, and receive his dividend. The only purpose for which he can object to the course proposed, must be to increase the costs.

ERSKINE J. There is no doubt as to the rule, that where there are several parties jointly and severally liable on the same instrument, and separate actions are brought against them, the court will consolidate the actions in order to prevent such a vexatious proceeding. And this is not the only case. It appears to me that the same principle applies where there are separate instruments, and a separate liability in respect thereof, (1 Chitt. R. 709, very shortly reported, as Cormack v. Gundry, 3 B. & Ald. 272) the court of K. B. refused to consolidate into one count ninety-eight counts in a declaration, upon as many promissory notes of a country banker, for Il. each; but they made a rule (by consent) that all the counts should be struck out except one, and that the ninety-seven other notes might be given in evidence under the account stated. In Lane v. Smith (W. E. Taunton, Tidd, Pr. 617, 9th ed., 3 Smith, 113), where the declaration contained 286 counts on similar notes, the court had refused to strike out the counts on the notes. It appears from the reports of that case, that, besides the counts on the notes, the declaration contained counts for money lent and money had and received, but it does not appear whether there was also a count upon an account stated.

(a) See Harper v. Woodhouse, Prac. Reg. C. P. 151; Anon. 1 Chitt. Rep. 709 a., where a rule was made to consolidate two actions of trespass for foxhunting over the plaintiff's premises, situate in the same parish, though committed at different times. In Jones v. Enderup, Prac. Reg. C. P. 150, however, where the declaration_contained thirty counts for assaults, the court, upon an affidavit that the defendant had assaulted the plaintiff sixty several times, refused to strike out any of the counts. And in Bayley v. Raby, 1 Stra. 420, the court refused an application, that four several declarations in trespass against four different persons might be put into one, upon an affidavit that the trespass, if any, was committed by all jointly; and observed, "We never went so far as the case of different persons, but only where the declarations are between the same parties. The plaintiff may have the benefit of the others' evidence in his action against either; but this will be to deprive him of that." If the rule had been shaped as in the principal case, that objection, it seems, would not have been applicable.

(b) As to the origin and establishment of this rule,-introduced by Lord Mansfield C. J.,-see Park on Insurance, Introd. vol. i. pp. xliv. xlv. Tidd, Pr. 614, 615, 9th ed.