with laying out a considerable sum on the premises (the lease to contain certain specified covenants), "and in the mean time, and until such lease shall be executed, to pay rent, and to hold the same premises, subject to the covenants above mentioned," was held to amount to an actual demise. It was also held, in that case, that an action for use and occupation lies for constructive as well as actual occupation, and Burrough, J., says, "This is such a holding as entitled the plaintiff to sue in an action for use and occupation. Actual occupation is not necessary, legal possession is sufficient."

Pearson, in support of the rule.-The entry of one only of the defendants is not sufficient to make both liable in this form of action. [Platt, B.-Is it, not reasonably to be presumed that Dungey entered into possession under that instrument which alone would give him the right?] Farrant did not enter, and Dungey was not his agent for that purpose. The fact that one of the defendants has suffered judgment by default does not affect the question. Thus, in an action upon a joint and several promissory note, where the plaintiff declared against the defendants jointly, and they severed in their pleading, and one of them by his plea admitted his handwriting to the note, and the other pleaded the general issue, it was held, that plaintiff was under the necessity of proving the handwriting of all the defendants. In Nation v. Tozer (a), one of two executors of a deceased tenant for a term of years entered into the demised premises, and it was held that such entry did enure as the entry of the two executors, so as to make them both liable in an action for use and occupation; and Parke, B., at the conclusion of the judgment of the Court, says, "All we decide is, that he is not liable in an action for the use and occupation of that of which neither he, nor

(a) 1 Cr. M. & R. 172.

1849.

GLEN

V.

DUNGEY.

1849.

GLEN บ.

DUNGEY.

any one whose act is in point of law his act, has been in the actual possession."

Cur. adv. vult.

ALDERSON, B., now said:-In this case cause was shewn, in the sittings after last term, against a rule which had been obtained to set aside a verdict found for the plaintiff, and to enter a nonsuit, in pursuance of leave reserved at the trial. We have considered the question arising upon an agreement signed by both the defendants in the action -Dungey and Farrant. It was an action for use and occupation, to which Dungey pleaded the general issue, the other defendant Farrant having suffered judgment by default. We think that the agreement having been executed by both the defendants, the entry of Dungey at the time fixed in the agreement was a reasonable ground for the conclusion of fact by the jury, that when he so entered, he entered under a parol demise from year to year, upon the terms contained in that agreement, that is to say, upon a parol demise to the two parties jointly, and therefore that he entered in respect of them both; and therefore an action for use and occupation may be maintained against them both, although there is no distinct proof that the other defendant, Farrant, who suffered judgment by default, had ever entered at all. It may be observed, that if Dungey did not enter under the terms of that agreement, he was a mere trespasser. The rule must, therefore, be discharged.

Rule discharged.

THE ATTORNEY-GENERAL v. CLEOBURY.

THIS was an information filed by the Attorney-General against the defendant, to recover penalties from him in respect of unstamped instruments subscribed by him, which are hereinafter particularly mentioned, and also to recover stamp duties in respect of the same.

The information contained counts for penalties of 500l. each, under the 35 Geo. 3, c. 63, s. 17, and also counts for penalties of 5l. each, under the 10 Anne, c. 26, s. 71. There were also counts for the duties, and on an account stated. The defendant pleaded nil debet; and issue having been joined thereon, the following case was by consent, and by order of Alderson, B., stated for the opinion of this Court:

In the year 1844, certain persons, of whom the defendant is one, formed a Company called "The Agriculturist Cattle Insurance Company," for the purpose of assuring the owners of cattle from loss arising from death. The business of the Company has been and still is conducted by a board of directors, of which body the defendant is a member. The policies or agreements of insurance issued by the Company have been usually signed by three of the directors, and have usually been in the same form as those hereinafter referred to.

The party mentioned as the assured in the document a copy of which is contained in the Appendix to this case, and marked (A), having made the usual proposal for assurance, and having paid to the Company the premium of 27. 10s., mentioned in the said document, the defendant, being a member and director of the Company, as one of the directors of the Company, in conjunction with two other members and directors of the Company, executed a docu

VOL. IV.

F

EXCH.

A

1849.

June 6.

policy of in

surance on

the lives of cattle is an insur

ance on lives

within the 55 Geo. 3, c. 184, and is liable to

duty. But such

an instrument

is only liable to a 51. penalty for want of a stamp, under the 10 Anne,

c. 26, and not to the penalty

of 5001. under 35 Geo. 3, c. 63, s. 17, which applies to marine insurances only.

1849.

ATT.-GEN.

V.

CLEOBURY.

ment, of which a copy marked (A) is contained in the said Appendix, and which is to be taken as part of this case. The document is partly printed and partly in writing, and contains the several memoranda and is indorsed in all respects in the manner appearing from the said copy.

The document, a copy of which is also contained in the said Appendix, and which is marked (B), was also executed by the defendant, in conjunction with two other directors, as appears from the said copy, which is also to be taken as part of this case. This document also contains the memoranda, and is indorsed in the manner shewn by the said copy.

The party therein described as the assured paid the sum of 15s. to the Company, as the premium mentioned in the said document marked (B).

The sums paid by the parties respectively assured in documents (A) and (B), exceed the rate of 20s. per cent. on the respective amounts indorsed on the said documents as the amount of insurance."

Neither of the documents marked (A) and (B), of which copies are contained in the Appendix, is impressed with any stamp or mark denoting the payment of any stamp duty whatever, nor was any stamp or other duty ever paid in respect of those documents, or of the assurances or agreements entered into by them respectively; and the said documents are on paper which has never been stamped.

The cattle assured by the documents in question were not insured otherwise than by those documents.

The question for the opinion of the Court is, whether the documents in question, or either of them, are or is liable to the stamp duty imposed in respect of assurances or insurances by the 55 Geo. 3, c. 184, or any other statute.

If the Court shall be of opinion that such stamp duty is payable, judgment is to be entered for the Crown, on the count for duties, for the whole amount of duty which the Court shall consider to be payable, and also on such of the

first eighteen counts as shall be applicable thereto, for such penalties as the Court shall consider to have been incurred by the defendant.

If the Court shall be of opinion that no such duty is payable, and that the defendant has not incurred any penalties, a nolle prosequi is to be entered.

APPENDIX (A).

Agriculturist Cattle Insurance Company.

Premium, 21. 10s.

Chief Office, 8, Chatham Place, Blackfriars, London. No. 5760. Memorandum of agreement made this 26th of May, 1846, between J. F. Fitzgerald, N. Cumberledge, and T. M. Cleobury, three of the Directors of the Agriculturist Cattle Insurance Company, of the one part, and S. Gleave, of Sandiway, and hereinafter designated by the name of the “assured," of the other part.

The assured having paid to the said Company the sum of 21. 108., on the 18th day of May instant, they the said Directors hereby declare and agree, that, from the said day of payment during twelve calendar months therefrom, and during twelve calendar months after every 18th day of May during the continuance of this agreement, so long as the said assured shall, within twenty-one days respectively thereafter, continue to pay the like sum of 2l. 10s., and the Directors for the time being shall accept the same, the funds of the said Company shall be liable to pay to the said assured, his executors, administrators, or assigns, three fourths of such loss among the animals enumerated in the schedule below, or which shall be declared by indorsement hereon to be substituted in lieu of them, or any of them, being at this present time, or at the time of such substitution, and at the time of the loss, the property of the as

1849.

ATT.-GEN.

ข.

CLEOBURY.