It appears to me that this case does not fall within the rule adverted to; and that upon two grounds.

First, upon the ground that there was no new taking of the premises by the plaintiff, or any letting into possession by the defendant; and secondly, that even assuming there was such a new taking or letting into possession, it was left by me to the jury to say, whether the transaction took place on the part of the plaintiff without a knowledge of the circumstances, and that the jury found such to be the case.

Upon the first point, I think it was competent for the plaintiff to shew that the defendant's title had expired. The plaintiff was in possession of the premises; and after the expiration of the defendant's interest, he con-[152]-tinued to occupy, as tenant by sufferance under the party who was entitled to the intermediate term of three quarters of a year. The witness Richards speaks of a new agreement having been entered into between the plaintiff and the defendant, that the former should continue in possession as tenant to the latter: but there was no new possession given by the defendant; she was in no way prejudiced; she could not have turned the plaintiff out of possession; and before their agreement, if she had brought her ejectment, the plaintiff might have shewn that she had no title, and that the title was in some one else. It is not like the case of a person letting another into possession of vacant premises; it is in fact a remaining in possession of premises which had been formerly occupied by the tenant. It is said, indeed, that this makes no difference, and that the facts of this case amounted, in law, to a new letting into possession; and the case of Balls v. Westwood (a) was cited as an authority to shew that where a party has come in under another, the former cannot shew that the title of the latter has expired without solemnly renouncing such title, and commencing a fresh holding under another person. But though such appears to have been Lord Ellenborough's opinion in that case, his opinion was subsequently altered; for in Doe dem. Lowden v. Watson (2 Stark. N. P. C. 230) that learned judge held that a defendant in ejectment, who had paid rent to the lessor of the plaintiff, might shew that his landlord, pending the term, had sold his interest in the premises; that is, in effect, the tenant was allowed to shew an alteration in his landlord's title. So, in England dem. Syburn v. Slade (4 T. R. 682), which was ejectment by a landlord against a tenant whose term had expired, it was held that the latter was not barred from shewing that his landlord's title had expired. And in [153] effect all that the plaintiff proposes to do in this case is, to shew that the defendant had at one time a good title, which has since expired.

But upon the other point, I cannot distinguish this case from that of Gregory v. Doidge (3 Bingh. 474), where the plaintiff in replevin had occupied lands under A., and upon A.'s death had entered into an agreement to pay rent to the defendant, and paid Is. as an acknowledgment of his title, being ignorant that it was disputed. It turning out afterwards that the defendant had no claim to the property, this court was clearly of opinion that the plaintiff, having come into possession under a former owner, and having entered into the agreement in ignorance of the defect in the defendant's title, might, under a plea of non tenuit, shew that the defendant was not his landlord (b). The tenant's right to dispute the title is there put in the most precise way, being raised by the express plea of non tenuit; and that case seems to me to embrace the case now before us. Upon the second ground therefore, supposing that there had been a new tenancy created after the expiration of the defendant's title, I think it clear that the plaintiff had a right to shew what were the circumstances under which he entered into the agreement with the defendant-a right to shew the jury that, at that time, he was ignorant of the real facts as to the defendant's title. Now, it is highly improbable that the defendant disclosed to the plaintiff that she had no right to the premises; for if she had, no man of common sense (c) would have taken her as his landlady; but, in fact, she then asserted, and even now stoutly maintains, her right to the premises. [154] I left it to the jury to say, whether the agreement in

a claimant would have subjected himself in respect of the covenants of the original lease.

(a) 2 Campb. 11; and see Keilwey, 65.

(b) See Williams v. Bartholomew, 1 B. & P. 326.

(c) He would have placed himself in the position of being liable to pay the amount of the rent over again to the Duke of Portland, either in the shape of mesne profits or as a compensation for the use and occupation.

question was entered into by the plaintiff with a full knowledge of the facts, or under a misapprehension as to their nature; and they, in effect, found the latter. I see no reason to be dissatisfied with their verdict; and the case of Gregory v. Doidge is an authority to shew that the direction to the jury was correct.

Upon the whole, therefore, I am of opinion that the present rule must be discharged.

COLTMAN J. I am of the same opinion. In the case of Doe dem. Higginbotham v. Barton (11 A. & E. 307, 3 P. & D. 194), where a mortgagor in possession had demised the premises, and the tenants, having received notice from a party to whom their lessor had executed a second mortgage, had paid rent to him, the question was, whether the tenants could, in ejectment by such second mortgagee, dispute his title. Lord Denman C. J., in giving the judgment of the court, said, "It is clear that the lessor of the plaintiff never had any legal estate; and he must rely on the rule with regard to landlord and tenant. That rule is fully established: viz. that the tenant cannot deny that the person by whom he was let into possession had title at that time but he may shew that such title is determined. With respect to the title of a person to whom the tenant has paid rent, but by whom he was not let into possession, he is not concluded by such payment of rent, if he can shew that it was paid under a mistake."

In this case, therefore, if the plaintiff was not let into possession by the defendant, it is clear that he is not precluded from shewing that her title is at an end. What, then, is the meaning of being let into possession? The plaintiff, it is admitted, was not let into corporeal possession by the defendant; he had been let in by [155] Tilbury, quite independently of Mackenzie (vide ante, 145 (a)). But then it is argued that in July 1838 the plaintiff entered into an agreement to take the premises from the defendant; and I think that such must be considered to be the result of the evidence. And if she had a legal right at that time, and might have turned the plaintiff out of possession, I am not prepared to say but that he must have formally surrendered to the defendant. But the infirmity of the defendant's case consists in this, that at the time of this agreement she had in fact no power to turn the plaintiff out of possession; and I think therefore that he cannot be said to have been let in by her. The question then is, was this agreement made under a mistaken notion as to the facts? This point was properly left to the jury, and they have found in the affirmative. The plaintiff, therefore, was entitled to shew that, at the time of making the distresses, the defendant's title had determined.

ERSKINE J. I am of the same opinion. The facts of the case are all perfectly clear, and indeed are not disputed. After Midsummer 1838 there was no title in the defendant; but the title of the Duke of Portland did not accrue till the 5th of April following. The plaintiff had been let into possession originally, not by the defendant, but by Tilbury; but after his right had expired (which was at Midsummer 1838, when the defendant's title also expired), the plaintiff had paid rent to the defendant up to Midsummer 1839, and, as it would seem, not under protest. This was a primâ facie acknowledgment of her title; but the cases that have been cited shew, that where such a payment has been made in ignorance of the real circumstances, and the tenant has not been let into possession by the party claiming to be [156] landlord, the former may shew the want of title of the latter. The defendant, however, relies upon an agreement proved by the witness Richards to have been made in July 1838, after the expiration of her term, whereby the plaintiff agreed to hold the premises as her tenant; and if this agreement were made with a full knowledge of the facts, perhaps the plaintiff would not be entitled to deny that he was bound to pay her rent. But it is impossible to suppose that he knew she had no title at the time of the agreement; and the evidence shews that no explanation was at that time entered into. Is the agreement, then, to be taken as conclusive? There were two questions left by my lord to the jury. The first was, whether the plaintiff was in possession as tenant to the defendant under the agreement; the second, whether the agreement was made with a full knowledge of all the circumstances. The jury found a general verdict for the plaintiff, and must therefore be taken to have found, either that there was no agreement, as stated by the witness Richards, or that the plaintiff had, at the time, no knowledge of the facts. It is probable they thought the agreement was in fact made, but under a mistake as to the facts. It is said this is not merely the case of an attornment, but is a letting into possession; and the rule of law is relied upon,

Now

that, under such circumstances, the tenant cannot deny the landlord's title. I agree that this might be so if in July 1838 the plaintiff had made the agreement with knowledge of the facts; but it is clear he was in perfect ignorance as to them, or, at any rate, was not fully aware that the defendant had no title to the premises. Then, is there any difference between an express agreement to hold of a party and an attornment to him? They each amount to an admission of such party's right. Unless it could be shewn that the defendant had put the plaintiff into actual possession, I think the agree-[157]-ment would stand on the same footing as an attornment. If, indeed, at that time, the defendant might have turned the plaintiff out of possession, he could not have denied her title. But that is not so; because if, in July 1838, the defendant had brought her ejectment, she must have stood on her own title, and she had, in fact, none to prove. I am therefore of opinion that an agreement entered into under these circumstances, does not preclude the plaintiff from disputing the defendant's title to the premises.

CRESSWELL J. I also am of opinion that the direction of the Lord Chief Justice was right, and that the finding by the jury was so likewise. It is undoubtedly true that if one person obtain possession of premises by means of another as his landlord, the former is estopped in law from saying that the latter had no right to give such possession. If, therefore, he obtain possession as tenant, he must give up the premises to his landlord,-rebus sic stantibus. But if he mean to insist that the landlord's title is at an end, he must shew a change of circumstances, such as a sale of the property by the landlord, or an expiration of his title by efflux of time, &c. Now, assuming that the plaintiff in this case took possession from the defendant, I should by no means have been sure that the plaintiff might not have shewn that the defendant's title was gone. But the question here is, whether the Lord Chief Justice was right in leaving the questions, as he did, to the jury. (His Lordship here recapitulated the facts of the case.) Now the arrangement with the defendant recognises her as the party entitled to the remainder, which in point of fact she was not. Then the question arises, was that arrangement entered into under a mistake or not? The evidence clearly shews that, at the time, she was asserting her right to the propery; her title therefore was recognised by the [158] plaintiff under a mistake. It seems to me, therefore, that the case was rightly left to the jury, and that there is no ground for disturbing the verdict.

Rule discharged.

BEATY AND ANOTHER v. WARREN. April 30, 1842.

In this court a rule for judgment non obstante veredicto ought to be drawn up "upon reading the record;" but semble, the omission of these words by the misprision of the officer will not prejudice the party who has obtained the rule. At any rate, the record is sufficiently before the court if a copy of the pleadings be annexed to the affidavits on which the rule was obtained.

Assumpsit, on a special contract to make bricks; to which the defendant pleaded non assumpsit, and several special pleas. The cause and all matters in difference were referred. The arbitrator directed a verdict to be entered for the plaintiffs on the first issue, and for the defendant on the other issues, and he found that the plaintiffs were not entitled to any damages for the breaches of the contract alleged.

Channell Serjt., on behalf of the plaintiffs, on a former day (19th April) of this term, obtained a rule nisi to set aside the award, or for judgment non obstante veredicto, upon the ground (inter alia) that the second, third, fourth and fifth pleas were bad in law, and that the sixth did not go to the whole cause of action.

Bompas Serjt. now took a preliminary objection, that, as the pleadings did not appear on the face of the award, and the rule was not drawn up "on reading the record," the record was not before the court, and therefore the plaintiffs could not be heard to object to any thing contained therein. [Tindal C. J. When a motion is made for judgment non obstante veredicto, is not the record supposed to be before the court? Still, in this court it is necessary that the rule should be drawn up on reading the record," although it is not so [159] in the Queen's Bench; and that court, on an application to set aside an award made pursuant to an order of nisi prius, will look at the record, although the rule is not drawn up on reading it. The difference C. P. XII.--3

between the practice of the two courts was pointed out by Patteson J. in Sherry v. Oke (3 Dowl. P. C. 349, 351). (He was then stopped by the court, after they had consulted with the master (Griffith).)

Channell Serjt., contrà. This objection cannot be sustained. In a recent case in the court of Exchequer, where there was an application to set aside a verdict in a cause that had been tried before the sheriff, it was necessary to ascertain the form of the second plea. It was objected that it was not before the court, as the rule was not drawn up "on reading the record;" but Parke B. said he considered the record was in court. [Bompas. The rule in that court is in the same form as in the Queen's Bench (b).] At most this is merely a mistake of the officer in drawing up the rule, for which the party ought not to suffer (c). The terms of the rule are never indorsed by the counsel.

TINDAL C. J. I think this is a mere misprision of the officer. The record is never really in court; and though it seems that the rule should properly have been drawn up "upon reading the record;" still the record may be considered as being virtually and potentially in court (d). It is, after all, but a technical objection.

[160] It then appearing that a copy of the pleadings was annexed to the affidavits upon which the rule nisi had been obtained, the argument in the cause proceeded: but terms were afterwards agreed upon.

GIBSON AND MARTIN, Assignees of F. Harris, v. MUSKETT.

May 4, 1842.

[S. C. 3 Scott, N. R. 419, 427; 10 L. J. C. P. 301; 11 L. J. C. P. 225.] A., a trader, being in embarrassed circumstances, offered his creditors a composition of 7s. 6d. in the pound, which was refused by the majority of them, and by B. among the number. B. filed an affidavit in the court of bankruptcy, and, on the 13th of March, served on A. a copy thereof and a notice, demanding payment pursuant to sect. 8 of 1 & 2 Vict. c. 110, and he also served a notice on an auctioneer, who had advertised the sale of A.'s goods, not to proceed with the sale. The goods were sold, and out of the proceeds a payment was made, on the 5th of April, to the defendant (a creditor) of the amount of the composition of his debt. Held that this was a fraudulent preference. Quære whether, under the act in question, the twenty days after the service of the notice are to be reckoned inclusively of the day of service. The question, whether a fraudulent preference was given, appears to be one of law rather than of fact. (Per Coltman J.).—“A payment really and bonâ fide made," within the eighty-second section of 6 G. 4, c. 16, is a payment made without any intention of its being reclaimed. (Per Tindal C. J.).The court, being greatly dissatisfied with two successive verdicts, ordered a third trial.

Assumpsit, for money had and received to the use of the plaintiffs, as assignees, and upon an account stated with them as assignees. Plea: non [161] assumpsit. At the trial, before Lord Abinger C. B., at the Hertford summer assizes, 1840, a question

(b) See Chitty's Pract. Forms, 707.

(c) He adopts the mistake when he serves the rule.

(d) In Tidd's Practice (9th ed. p. 928), it is said, "The motion in arrest of judgment, or for judgment non obstante veredicto, &c., may be made, in the King's Bench, at any time before the judgment is given, though a new trial has been previously moved for. But it is against the ancient course of the court, to make a rule to stay judgment, unless the postea be brought in; and therefore it is said, that if one move in arrest of judgment, he ought to give notice to the clerk in court on the other side; but the better way is to give a rule upon the postea for bringing it into court, and that is notice of itself.

"In the Common Pleas, the motion in arrest of judgment must be made before or on the appearance day of the return of the habeas corpora juratorum; and it cannot be made, without notice, on the last day of term. On moving in arrest of judgment after verdict, the roll should be brought into court, if it be entered on record; if not, the record of nisi prius should be produced by the associate."

arose, whether a payment made by Harris, the bankrupt, under the circumstances hereinafter stated, was void, as being a fraudulent preference.

Harris had been a trader at St. Albans, and a customer of the defendant, who was a banker there. In February 1839, Harris being largely indebted to various persons, including the plaintiff Martin and the defendant, a composition with his creditors of 78. 6d. in the pound was suggested; and it was on three different occasions proposed to the plaintiff Martin to come into this composition, which he declined to do. On the 13th of March Martin filed, in the court of Bankruptcy, an affidavit of the amount due to him from Harris, pursuant to the stat. 1 & 2 Vict. c. 110, s. 8 (a)1, and a copy thereof, with a notice requiring immediate payment of the debt, was served on J. Harris on the 15th of March. Harris's goods were [162] advertised for sale by one Crawley, an auctioneer, on the 21st. An hour before the sale notice was served upon him by the solicitors of Martin, that proceedings had been instituted for the purpose of making Harris a bankrupt. The sale, however, took place; and, out of the proceeds, Crawley paid to various creditors of Harris (including the defendant) the composition of 7s. 6d. in the pound on their respective debts. The payment to the defendant was made on the 5th of April. Harris not having complied with the requisites pointed out by the act above referred to, a fiat was issued against him on the 9th of April 1839, under which the plaintiffs, on the 2d of May, were appointed assignees. Of thirty-three creditors only fourteen had come into the composition. The sum received by the defendant amounted to 1211. 10s., to recover which the present action was brought.

The Lord Chief Baron told the jury that if they were satisfied that Harris, at the time the payment was made, believed Martin would proceed to make him a bankrupt, or knew he could not prevent Martin from doing so, if he thought that bankruptcy was inevitable, the payment would amount to a fraudulent preference, and they should find a verdict for the plaintiffs; but if they thought that Harris did not intend to commit an act of bankruptcy, and did not conceive that Martin would proceed to make him a bankrupt, they ought to find for the defendant. The jury returned a verdict for the defendant.

Sir Thomas Wilde Serjt. in Michaelmas term 1841 obtained a rule nisi for a new trial, upon two grounds; first, upon the ground of misdirection, as to whether the money had been paid in contemplation of bankruptcy; and secondly, that the verdict was against evidence.

[163] Channell Serjt. in Trinity term 1841 (a)2 shewed cause against the rule, and Sir Thomas Wilde was heard in support of it. The court delivered their judgment as follows:

May 29.-TINDAL C. J. It seems to me, the jury have come to an improper conclusion, and that the case ought to be sent to a new trial. The money, it appears, was paid by Harris to Muskett on the 5th of April, that sum being the amount of 7s. 6d. in the pound on a debt due from Harris to Muskett; and it is important to consider what was Harris's situation with respect to Martin, another of his creditors, at this time.

(a) Which enacts that, "if any single creditor (or creditors, being partners), whose debt shall amount to 1001., or any two creditors whose debts shall amount to 1501., or any three or more creditors whose debts shall amount to 2001. of any trader within the meaning of the laws respecting bankrupts, shall file an affidavit in Her Majesty's court of Bankruptcy, that such debt is due, and that such debtor is such trader, and shall cause him to be served personally with a copy of such affidavit, and with a notice in writing, requiring immediate payment of such debt, and if such trader shall not, within twenty-one days after personal service of such affidavit and notice, pay such debt, or secure or compound for the same to the satisfaction of such creditor, or enter into a bond in such sum, with two sufficient sureties, as a commissioner of the court of Bankruptcy shall approve of, to pay such sum as shall be recovered in any action which shall have been brought, or shall thereafter be brought, for the recovery of the same, together with costs, or to render himself, &c., after judgment recovered, every such trader shall be deemed to have committed an act of bankruptcy on the twenty-second day after the service of such affidavit and notice, provided a fiat shall issue within two calendar months from the filing of such affidavit.' (a) Before Tindal C. J., Coltman, Erskine, Maule JJ.