objection, the plea not shewing that the business was
done since the statute. If it was done before, and
not in Court, delivery of a bill would not be neces-
sary. The contrary supposition would lead to great
injustice; for an action in respect of conveyancing
charges might be barred by the Statute of Limitations
before a month had elapsed from the passing of the
act, though the plaintiff had been guilty of no laches
in not delivering a bill before, when the law did not
require it. [Lord Denman C. J.
A party who had
waited more than five years and eleven months would
not have much to complain of; and the case is not
likely to happen.] The third plea admits a state-
ment of account; but, where the account between at-
torney and client has been settled without taxation, the
nature of the debt is changed, and the objection that no
bill was delivered is no longer applicable; Hooper v.
Till (a). A statement of account is not a mere admis-
sion, though an admission is evidence of an account
stated. [Patteson J. If it be held that, in an action
for an attorney's charges, when the defendant takes
issue on the account stated, the plaintiff may prove his
case by an admission, the rule as to taxation is defeated,
Lord Denman C. J. The act of parliament, so far,
becomes useless.] The admission would be evidence
merely. The defendant might disprove the stating of an
But it cannot be said that, if, in point of fact,
the accounts had been cast up, and a balance struck,
a defendant might reopen them if one item related to
law proceedings. (He also noticed the omission to
state that the work was done &c. in England or Wales).

account.

Queen's Bench. [1846.]

SCADDING

V.

EYLES,

Volume IX.

[1846.]

SCADDING

V.

EYLES.

Lush, contrà. The argument on the account stated, if successful, would virtually repeal the statute as to taxation. Whatever may have been the result in ordinary cases, when parties have sat down together and settled an account (a state of things not admitted on these pleadings, since the delivery of a bill is denied), the legislature has made express provision for the case of an attorney's bill, and no assumption can be made which the statute does not sanction. [Lord Denman C. J. I think there can be no doubt that the legislature intended to have these bills taxable and examinable in all cases. But what do you say to the first point?] If a party does not in any form deny, he confesses. In a plea of payment, tender or set-off, it is never thought necessary to say in terms, "the defendant admits that he once owed the money." The words "if any" are inconsistent with an admission, because they do not admit the fact, even for the purpose of the action. But "supposed" means "alleged," and does not suggest any doubt of the fact; for which reason it was held unobjectionable in Eavestaff v. Russell (a); and the words "claimed and demanded" are equivalent to supposed. [Lord Denman C. J. We think so.]

Per Curiam (b),

Judgment for defendant.

(a) 10 M. & W. 365. On special demurrer.
(b) Lord Denman C. J., Patteson and Williams Js.

Queen's Bench.

1847.

Doe, on the demise of GOODY, against MARY

CARTER.

EJECTMENT for a cottage, garden &c., in Essex.
Demise, 8th January 1845.

On the trial, before Coleridge J., at the Essex Summer assizes, 1845, it appeared that the defendant was widow of John Carter, who died in 1834, being then

Thursday,

January 14th.

R. C., the pur

chaser of land, was let into

possession

before execu

the

oc

let in his son

cupier of the premises, which he had held, as after men

as tenant at

will. The son

occupied, and

tioned, for a period short of twenty one years; and the built a cottage on, the defendant had occupied them ever since. The other Awards. material facts (as stated in the judgment of the Court delivered this day) were as follows. Robert Carter, the

father of John, purchased the premises (amongst others)

from one Havens, and was let into possession; but, as

R. C. took a

conveyance

from the ven

dor; and,

some time after, he mortgaged the land. The

son continued

he did not pay all the purchase money, no conveyance to occupy the was executed till the 14th December 1824, some years

after the purchase. In the meantime the father had let

his son John, the husband of the defendant, into posses

premises in all respects as at first, till his

death, which happened

within twenty

sion of part of the premises as tenant at will (a) without one years of his entry. The paying any rent. The father afterwards mortgaged the son's widow whole, on 23d March, 1829, for a term of years, now occupy till the expiration of

continued to

twenty one years from her husband's entry. Held, that an action of ejectment afterwards brought against her was barred by stat. 3 & 4 W. 4. c. 27. ss. 2, 7. For that the tenancy at will was not determined by the father's taking a conveyance: and that, if it had, in point of law, been so determined by that event, or by the mortgage, a tenancy by sufferance must be deemed to have commenced from such determination, there being no evidence of a new tenancy at will: and the tenancy, altogether, had continued more than twenty years from the end of the first year.

(a) After being let into possession, and before the conveyance in 1824, John Carter built the cottage (in part at least) with his own materials: and it was contended, in shewing cause against the after mentioned rule, that this gave him an equitable interest, higher than that of a mere tenant at will: but the Court thought that the case, as reported by the learned Judge, did not raise this question.

.

Volume IX. vested in the lessor of the plaintiff. The learned Judge

1847.

DOE dem.
GOODY

V.

CARTER.

directed the jury that, if they believed John Carter, the son, to have entered as tenant at will more than twenty one years before the day of the demise laid in the declaration, this action was barred by stat. 3 & 4 W. 4. c. 27 (a). Verdict for defendant. Lush, in the ensuing term, obtained a rule nisi for a new trial on the grounds of misdirection, and that the verdict was against the weight of evidence. In Trinity vacation, 1846 (b),

Gurney shewed cause. It is assumed on the other side that John Carter always held as tenant at will to his father, and that that tenancy was determined on certain occasions, so that it never lasted for an entire period which would now make up twenty one years. But, first, assuming the son to have come in as tenant at will, he and the defendant have held continually for twenty years from the expiration of one year next after the commencement of the tenancy. [Patteson J. The lessor of the plaintiff represents a mortgagee.] The defendant does not stand upon the right of a mortgagor. If a tenancy at will originally subsisted between the son and father, it could not be determined by the father's taking a formal conveyance. Nor was it determined by the mortgage in 1829, no notice having been given to the tenant on the mortgagee's part to pay the future rents to him, as in Waddilove v. Barnett (c). If the mortgage, without such notice, had any effect, it was only that the tenancy, from that time, became a tenancy by sufferance; Com. Dig. Estates (I 1.); which would not prevent the statute from taking effect at the end of the twenty one years;

(a) Sects. 2. 7.

(b) June 25th. Before Lord Denman C. J., Patteson and Williams Js. (c) 2 New Ca. 538. 542.

1847.

Doɛ dem.
GOODY

V.

CARTER.

Doe dem. Bennett v. Turner (a). There was no evidence Queen's Bench. of any new tenancy being created, at this or any other period. No alteration took place on the death of John Carter; and his holding was continued by his widow. But, further, it cannot be said that John Carter ever was tenant at will; for, when his tenancy under his father commenced, the father himself held only at will; and a tenant at will cannot create an estate at will under him. If that be so, the case is, simply, that the defendant and her husband have had a twenty years' possession without recognition of a title in any other person. [Patteson J. A tenant at will cannot, as against the landlord to whom he is tenant, constitute another person tenant at will; but he can make a tenant at will as against himself. Lord Denman C. J. We must take it here that the case was such.]

He also argued as to the weight of evidence.

Lush, contra. The first material question is, in what character the son occupied. He did not enter as a trespasser; and the only conclusion that can be drawn from the evidence is that he came in, and held, as tenant at will. A tenant at will may create a tenancy at will available as against himself. Then the father, by taking a conveyance in 1824, determined the will; and so the period of twenty years was broken, according to the doctrine of Doe dem. Bennett v. Turner (a), which directly applies to the present case. [Patteson J. There an act was done by the landlord which had a direct operation upon the tenant. Suppose a mortgagor pays off the mortgage and takes a reconveyance: I do not see that a tenancy

(a) 7 M. & W. 226. 334. See Turner v. Doe dem. Bennett, in Excl. Ch., 9 M. & W. 643. Also Doe dem. Dayman v. Moore, antè, p. 555.