At the trial before Maule J., at the sittings for Westminster during this term, the following document was given in evidence.

:

"Memorandum of agreement made, &c., between William Sparshott (the defendant) of the one part and Frederick William Palmer, and Charles Palmer (the plaintiffs), of the other part: Whereas an action at law was lately commenced in Her Majesty's court [139] of Exchequer of Pleas by one Thomas (sic) Poole against the said C. P., and upon the trial of the said case a verdict was given for the plaintiff for the sum of 821. 10s. And whereas various proceedings have been taken by and on behalf of the said C. P. to obtain a new trial of the said action, and which proceedings are still pending: And whereas it hath been arranged that any damages, costs, and expenses that may ultimately be recovered by the said T. P. shall be borne and paid in equal shares by the said W. S., F. P. and C. P., and three other parties, who are equally interested with them in certain estates and premises situate at, &c.: And whereas by a certain indenture bearing even date with these presents, and made between the said F. P. of the first part, the said C. P. of the second part, and the said W. S. of the third part, in consideration of the sum of 1501. apiece the said F. P. and C. P. duly conveyed and assured their two several undivided sixth parts, shares, and interests of and in the said estates and premises to the said W. S., his heirs, &c.: And whereas at the time of the completion of the said purchase it was arranged that the said W. S. should retain 501. out of each of the said purchase or consideration moneys of 1501., and release the said F. P. and C. P. from any liability in respect of the said damages, costs, and expenses of the said action: Now these presents witness, that for and in consideration of the said two several sums of 501. and 501. so retained by him as aforesaid, the said W. S. doth hereby, for himself, his heirs (b)1, executors, &c., covenant (b)1 and agree with and to the said F. P. and C. P., their executors, &c., to save harmless and indemnify them the said F. P. and C. P., and each of them, their heirs, executors, and administrators, and their and each and every of their [140] estates and effects of and from and against all damages, costs, and expenses to be in any way incurred in and about the said action, suit, or proceedings as aforesaid or in relation thereto, shall not amount to the sum of 501.; that he the said W. S., his heirs, executors, and administrators, shall and will pay or hand over to the said F. P. and C. P., their executors, &c., the difference in amount between the said sums of 501. and the amount of such respective sixth parts of the said damages, &c., when the same shall be ascertained. As witness, &c."

It was suggested, on the part of the defendant, that there was a variance between the declaration and the document put in evidence, inasmuch as the former stated the contract of indemnity to have been made with the plaintiff alone, and the latter shewed it was made with the plaintiff jointly with Frederick William Palmer. The learned judge was of that opinion; but he offered to amend the declaration; and the plaintiff recovered a verdict for 1861.

Manning Serjt. now moved in arrest of judgment, or for a new trial, supposing the amendment not to have been actually made, in which case the objection as to the variance would be still open. [Tindal C. J. Leave having been given to amend by the learned judge, it must be taken as though the amendment had actually been made.] Then by the amendment the declaration is rendered bad; for it will shew the objection on the face of it. [Erskine J. The amendment only goes to the consideration, and not to the promise; a consideration from two will uphold a promise to one.] The declaration, as amended, shews a joint cause of action; and it is not the less joint because it is for the benefit of the two Palmers separately.

TINDAL C. J. It appears to me that this case falls within the principle, that where a man covenants with [141] two or more jointly, yet if the interest and cause of action of the covenantees be several and not joint, the covenant shall be taken to be several, and each of the covenantees may bring an action for his particular damages, notwithstanding the words of the covenant are joint; as established in Windham's case (5 Co. Rep. 7 a.), and others (b)2. Here, the agreement was certainly joint in its terms, but

(b) The instrument not being under seal, the mention of "heirs" and the insertion of the word "covenant" were of course nugatory.

(b) See Wotton v. Cooke, Dyer, 337 b.; Wilkinson v. Lloyd, 2 Mod. 82; Tippet v. Hawkey, 3 Mod. 263; Withers v. Bircham, 3 B. & C. 254, 5 D. & R. 106; Place v. Delegal, 4 New Ca. 426, 6 Scott, 249.

the interest of the parties was distinct and separate. Each party had, in effect, advanced the sum of 501.; each had sustained a separate damage; and each, therefore, might sue without joining his co-promisee.

COLTMAN J. The language of the agreement is, that the defendant shall "save harmless and indemnify the said Frederick William Palmer and Charles Palmer, their heirs, executors, and administrators, and their and each of their estates," which are clearly severable words.

ERSKINE and CRESSWELL JJ. concurred.
Rule refused.

[142] MAY v. SELBY. May 4, 1842.

In an action against a surveyor for negligence in making a valuation, expenses incurred in making a second valuation, for the purpose of ascertaining the correctness of the first, are not to be allowed in costs.

Channell Serjt. applied for a rule to review the master's taxation in this cause. It appeared that the action was brought against a surveyor for alleged negligence in making a valuation of certain hop-poles and farming effects; that the defendant had subpoenaed thirteen other surveyors as witnesses, who had valued the hop-poles; that at the trial at the Spring Kent assizes the plaintiff was nonsuited; that the defendant's attorney had made out his bill of costs at 3251. 2s., including charges for the sums paid to the thirteen surveyors for valuing the hop-poles, amounting to fifty-five guineas, and for their attendance at the trial; but that the master had taxed off 1761. 2s., including (inter alia) the whole of the sums paid for valuation, and the sums charged for the attendance of five of the surveyors at the trial, and for a brief for a third counsel.

The learned serjeant submitted, that although the general rule was, not to allow the expenses of qualifying a witness to give evidence, yet that where the matter in issue wholly depended upon opinion and not upon facts, it formed an exception.

TINDAL C. J. I do not see how such expenses as these can be called expenses in and about the suit. In cases where experiments have been necessary, the expenses attendant upon such experiments have been disallowed, as in Severn v. Olive (a). To allow such preliminary expenses as the present would be to open much too large a field.

[143] Upon the other points we cannot lay down any express rule; there must be some discretion left with the master; and I do not think this is a case in which the court ought to interfere.

COLTMAN J. concurred.

ERSKINE J. I have always understood the rule to be, that in cases turning upon measure and value, the expenses of surveyors are not allowed.

CRESSWELL J. concurred.

Rule refused.

CLARIDGE v. MACKENZIE. April 20, 1842.

[S. C. 4 Scott, N. R. 796; 11 L. J. C. P.

72.]

A. pays rent to B., a termor by whom A. was not originally let into possession, A.'s possession having been derived from C., under a demise from E., a prior owner of the term. After the expiration of the term, A., not knowing that the term had expired, enters into a parol agreement with B. for a tenancy, and, under such agreement, pays rent to B. A. is not estopped from shewing that B.'s title had expired. -Such agreement is not equivalent to a fresh letting into possession.

Trespass, for breaking and entering the plaintiff's house, situate No. 51 South High Street, Marylebone, with an asportation of goods. There was a second count for similar trespasses on another day.

Plea: not guilty-by statute.

(a) 3 Brod. & B. 72; 6 B. Moore, 235. See also Bayley v. Beaumont, 11 B. Moore, 497.

At the trial, before Tindal C. J., at the sittings for Middlesex after last Michaelmas term, it appeared that the action was brought for two different distresses taken by the defendant, who claimed to be landlady to the plaintiff. The first distress was taken on the 2d of July 1840, for a year's rent up to the preceding Midsummer; and the second in the October following, for a quarter's rent up to Michaelmas. The rent and x-[144]-penses were paid by the plaintiff on both of these occasions under protest (a)1. In anticipation of the defendant's case, it was proved on the part of the plaintiff that in 1710 the Duke of Newcastle purchased the freehold of a plot of ground in Marylebone, including the locus in quo; the property on his death passed to his daughter and heir, afterwards the Countess of Oxford, and was subsequently vested in trustees for her, with powers to them to grant building leases.

ex

In July 1740 the trustees granted a building lease to John Payne of a piece of land comprising the locus in quo, at a ground rent of 61., for a term of ninety-nine years, commencing at Lady-day 1740, old style (6th of April new style), which lease therefore expired on the 6th of April 1839.

The reversion of the estate had vested in the present Duke of Portland by the marriage of one of his ancestors into the Oxford family.

Payne, having mortgaged the premises to John Hatch, bequeathed his interest in them to Jane Saunders, who, together with Mrs. Ann Hatch, the legal representative of the mortgagee, by a lease dated the 23d of June 1762, underlet a portion, comprising the locus in quo, to Thomas Pitts, at a ground rent of 41., for a term of seventysix years from Midsummer-day in that year. This lease therefore expired on the 24th of June 1838.

Jane Saunders, after the underlease to Pitts, paid off the mortgage, and obtained a reassignment from Ann Hatch, of the original term.

Payne's interest in the original lease, by various mesne assignments, passed from Jane Saunders to different parties; and there was some evidence to shew that it [145] was vested in one Gledhall at the time of the expiration of such original lease in April 1839.

Pitts's interest had vested (though it did not appear in what manner) in Daniel Mackenzie, the father of the defendant; and in 1810 D. Mackenzie let the premises to one Tilbury for a term of twenty-eight years from Midsummer in that year; which lease, consequently, expired at the same time with the lease to Pitts, viz. on the 24th of June 1838 (a)2.

Tilbury built two houses on the premises so leased to him, and let one of them (the locus in quo) to the plaintiff, who paid rent (421. per annum) regularly to Mackenzie during his life (the rent being generally paid to the defendant as his agent), and after his death to the defendant, who claimed as his representative.

After the expiration of the sublease to Pitts (24th of June 1838), the plaintiff, supposing that the title to the premises was in the defendant, agreed verbally (according to the testimony of a witness of the name of Richards) to continue her tenant at the rent of 351. per annum; but no explanation as to the state of her title was then given; and he paid the rent regularly up to Lady-day 1839. At Midsummer in that year the defendant demanded a quarter's rent; but the plaintiff, having been made aware of the Duke of Portland's title, refused to pay. The defendant thereupon distrained; the plaintiff replevied, but was nonsuited in the action, which he brought in consequence, by reason of a formal defect of evidence, and the quarter's rent was paid to the defendant. There was some evidence that this payment had been made under protest. No rent was paid to the defendant from that time up to Midsummer 1840; and it was for that year's rent that the [146] first distress was made, in respect of which the present action was brought.

All the evidence as to the title of the Duke of Portland was objected to on the part of the defendant, upon the ground that it was incompetent to the plaintiff, as tenant to the defendant, to dispute her title. The evidence was, however, admitted. The Lord Chief Justice left it to the jury to say whether, at the time of the two distresses, the plaintiff was in possession, as tenant to the defendant, under an agree

(a) Semble, that no protest was necessary, or could be of any effect.

(a)2 According to several modern cases, the demise from D. Mackenzie to Tilbury would operate, not as an underlease, but as an assignment. Vide 5 Mann. & Ryl.

157-162.

ment with her after her term had expired; and, secondly, supposing such an agreement to have been made, whether it was made under error or mistake; and his lordship directed the jury, that if they should be of opinion that there was no agreement, or that, there being one, it had been made under an error or mistake, they were to find for the plaintiff. The jury returned a general verdict for the plaintiff.

Shee Serjt., in last Hilary term (17th January), moved for a new trial, on the ground that the above evidence had been improperly received, and also that the verdict was against evidence.

The court at first refused the rule; but afterwards (21st of January), the Lord Chief Justice intimated that a doubt had occurred to the minds of some of their lordships as to the right of the plaintiff to dispute the defendant's title; and a rule nisi was granted. On a subsequent day (27th of January), on the application of Talfourd Serjt., who moved upon an affidavit that the defendant had put in a fresh distress, the cause was fixed for argument on this day, when

Talfourd Serjt. shewed cause against the rule. The question is, whether, under all the circumstances of the [147] case, the plaintiff is at liberty to dispute the title of the defendant to the premises in question. There is no doubt that the plaintiff did, by paying rent to her after her title had in fact expired at Midsummer 1838, primâ facie acknowledged her title; but it is obvious that such payment was made under a mistake; for it would be absurd (vide infra, 153, 156) to suppose that the plaintiff, knowing that defendant had no title, would voluntarily pay rent to her. It is important to observe that the plaintiff was not let into possession by the defendant, but by Tilbury (b), and that he remained in possession when Tilbury's lease expired. There are three suppositions upon which the plaintiff was justified in disputing the defendant's title.

First, even supposing that the plaintiff had been let into possession by the defendant, still it would be competent to him to shew that her title had since expired. The only payment made subsequently to Lady-day 1839, when the Duke of Portland's title accrued, was made after the plaintiff had, in consequence of an accident, been nonsuited in replevin, and was made under protest; and assuming, that the defendant had title for the three quarters of a year between Midsummer 1838 and Lady-day 1839, there was no acknowledgment of her title after the latter period, and the plaintiff may shew that it then expired. In Burne v. Richardson (4 Taunt. 720), it was decided that a termor, who had let to an under-tenant, could not, after his term had expired, enforce the continuance of the undertenancy by distress, if the undertenant refuse to acknowledge him as landlord, or paid him under threat of distress.

Secondly, the plaintiff may have made the new bargain with the defendant for the three quarters of a year only, [148] on the supposition that she had title for that period. Thirdly, either the alleged agreement with her after her title had expired, if made at all, was clearly made under a mistake as to the facts, or the defendant must have falsely asserted a title to the premises; and either way the plaintiff is not estopped from disputing her title. In Fenner v. Duplock (2 Bingh. 10, 9 B. Moore, 38), payment of rent by a lessee to a lessor after the lessor's title had expired, and after the lessee had notice of an adverse claim, was held not to amount to an acknowledgment of title in the lessor, or to a virtual attornment (b)2, unless, at the time of payment, the lessee knew the precise nature of the adverse claim, or the manner in which the lessor's title had expired. He also relied upon Gregorg v. Doidge (3 Bingh. 474, 11 B. Moore, 394. Vide post, 153).

Shee Serjt., in support of the rule. The fact that the defendant has no title is only shewn by the evidence, the admissibility of which was objected to. It is argued that the plaintiff was not let into possession by the defendant (vide supra, 147 (b)); but he was clearly in possession at the time when the defendant's title is shewn to have expired; and though there was not a letting into corporeal possession, there was distinct proof, that after that period a new contract of tenancy was entered into between the plaintiff and the defendant, for a different term and at a different rent from the former. This amounted to a new letting into possession by the defendant, and not merely to an attornment on the part of the plaintiff. The payment of the rent for

(6) But Tilbury had received the possession from Mackenzie, so that the plaintiff came into possession mediately under Mackenzie. Vide 4 N. & M. 29.

(b) Vide Doe dem. Linsey v. Edwards, 6 Nev. & Mann. 635 (a), 640 (a), 656 (a).

three quarters of a year after Midsummer 1838 is not disputed, and it was again paid after the nonsuit in the replevin, which was after the Duke of Portland's title had accrued. If this nonsuit had been accidental, as it was contended, a new trial [149] might have been obtained. The relation of landlord and tenant, therefore, had clearly been established between the parties; and consequently the rule of law, that the latter cannot dispute the title of the former, applies. The cases of Gregory v. Doidge (3 Bingh. 474, 11 Moore, 394), Gravenor v. Woodhouse (1 Bingh. 38, 7 B. Moore, 289), and Rogers v. Pitcher (6 Taunt. 202, 1 Marsh. 541), might assist the plaintiff, if the facts were that he was not let into possession by the defendant, and if there had been a mere attornment by mistake. But the facts are the other way; and therefore it was not competent to the plaintiff, even to shew that the defendant's title had expired. In Balls v. Westwood (2 Campb. 11) it was held, in an action for use and occupation, where the defendant had come in under the plaintiff, that he could not shew the plaintiff's title had expired, unless he had solemnly renounced the plaintiff's title at the time, and commenced a fresh holding under another person. That course was open to the plaintiff here. In that case Lord Ellenborough expressed himself in these strong terms: "You may as well attempt to move a mountain. You cannot controvert the continuance of the title of the person under whose demise you continue to hold. The security of landlords would be infinitely endangered if such a proceeding were permitted. Had the defendant, upon the premises being seized by the lord of the manor, disclaimed holding of the plaintiff, and entered afresh under the new landlord, we might now inquire into the validity of the seizure, and consider, who is legally entitled to the premises; but the same tenancy continues which was created by the original demise, and the tenant must still pay rent to the lessor whose title he then recognised." In Doe dem. Knight v. Smythe (4 Maule & S. 347), Lord Ellenborough again said, [150] "Who shall be considered as landlord is a consequence to be deduced from the acts of the parties, and is not to be doled away at pleasure." And Dampier J. added, "The tenant in possession paid rent to the lessor, and then disclaimed. But he ought to give back the possession to the lessor, and after that the defendant may have her ejectment. It has been ruled often, that neither the tenant, nor any one claiming by him (vide supra, 147 (b)) can controvert the landlord's title. He cannot put another person in possession, but must deliver up the premises to his own landlord." Suppose A. were to hold as tenant from year to year of B., the freeholder B. dies, and A. then enters into another contract of tenancy with C., the eldest son of B. believing him to have title, and pays him rent, and afterwards finds out that he is illegitimate, can he dispute C.'s title? [Erskine J. That appears to be this very question.] In Phipps v. Sculthorpe (1 B. & Ald. 50) where premises had been let to B. for a term determinable by a notice to quit, and pending such term, C. applied to A. the landlord, for leave to become the tenant instead of B., and upon A. consenting, agreed to stand in B.'s place, and offered to pay rent; it was held that (though B.'s term had not been determined, either by a notice to quit or a surrender in writing) A. might maintain an action for use and occupation against C., and that the latter could not set up B.'s title in defence to that action.

The argument on the other side is, that at the time the plaintiff acknowledged the title of the defendant, he was not aware that she had none in fact; and that when he finds that out he may dispute her title. But that is not so; and the cases cited shew he was bound, either formally to disclaim the possession, or to surrender to her. is not like the case of a mere at-[151]-tornment to a party having no title; it is tantamount to being actually let into possession.

It

TINDAL C. J. This is an action of trespass brought for two distresses; the first for a year's rent claimed by the defendant to be due from the plaintiff at Midsummer 1840; the second for a quarter's rent at Michaelmas in the same year. The question in the case is, whether the plaintiff, who now disputes the legality of these distresses, is at liberty to do so, or whether he is not precluded by a rule of law, that a tenant cannot dispute the title of his landlord. There is no doubt, upon the evidence, that the defendant had, in point of fact, no title whatever to the premises in question after Midsummer 1838. The Duke of Portland's reversionary estate did not accrue till old Lady-day 1839; the mediate interest being vested in some one else, but in whom it did not very clearly appear (a), nor is it material.

(a) Probably this small reversionary interest was not worth the liability to which