1829 a lease of the premises in question by the plaintiff to the defendant expired. By agreement of 5 May 1829, the plaintiff agreed to let them to the defendant by indenture of lease, for the residue of a term granted to the plaintiff therein, reserving a few days, and subject to the covenants in the original lease to the plaintiff, at a clear net rent to be fixed by two arbitrators named, and by such umpire as they should appoint in the event of their disagreement; and the defendant agreed to accept such lease, execute a counterpart, and perform the agreement. The day from which the (under) lease to the defendant was to begin not being stated in the above agreement, the same arbitrators and their umpire, by another agreement of 6th June, were authorized to fix it. By their award of 26th June they accordingly fixed the rent at 431. per annum for the residue of the plaintiff's term, beginning on the 24th June 1829, and awarded 10l. to be paid by the defendant to the plaintiff, for the quarter then ended. No lease was ever executed by the plaintiff to the defendant, and the action was brought for a year and a quarter's rent of the premises. From the 25th March 1829 the houses remained in the occupation of the former tenants, who paid their rent to the defendant, and attorned to him from that day. On this evidence the plaintiff contended that the rent so reserved was so much money had and received by the defendant to the use of the plaintiff. The special counts being abandoned on an objection for want of a stamp to the award, the jury, under the direction of the learned baron, gave a verdict for the plaintiff for a year and a quarter's rent, beginning from Lady-day 1829. Jones Serjt. moved to enter a nonsuit, on the ground that even if the agreement of 5 May 1829 contained words of present demise, as was held at the trial, still it was an executory contract, subject to the execu 1832. NEALE v. SWEENEY. 1832. NEALE v. SWEENEY. tion of the lease, as well as to the term and rent to be fixed by the referees in order to frame that lease. Then the rent of the premises accruing due before the lease executed could only be recovered on a special count, and not on counts importing an executed consideration. When improvements are made by a tenant who is let into possession on the faith of a lease to be executed at a given rent, it would be a great hardship if the lessor, without executing a lease, entitle himself to sue as for use and occupation. But, Per Curiam.-Pending the executory contract, the defendant, by taking the attornments of the tenants in possession, placed himself without authority in the place of the original lessor. Then the occupation by those tenants was occupation by him, and his receipt of rent from them was evidence of use and occupation of the whole premises by him; for he not only received the rents under the executory contract, but also procured attornments to himself. Then the verdict is right for the whole term on the count for use and occupation, and the count for money had and received is also supported. Rule refused (a). (a) See Hegan v. Johnson, 2 Taunt. 148; Elliot v. Rogers, 4 Esp. 59, alluded to in Hamerton v. Stead, 3 B. & C. 482 and 483, in the judgments of Abbott C. J. and Holroyd J.; Dunk v. Hunter, 5 B. & Ald. 326. WIMPENNY, Surviving Executor of BATES, against Three actions HOGGINS moved to make an agreement of reference (by deed) of two causes between these between the same parties were brought in the Exchequer and one in K. B. They were referred to the same arbitrator, on the terms that the order of reference should be made a rule of the K. B. or Exchequer, and the original order was made a rule of court in K. B. The arbitrator awarded distinct sums to the plaintiff in each action. Held, that the order could not afterwards be made a rule of court in Exchequer as to two of the actions there, in which a third party was the real plaintiff, but that his application must be to the K.B. parties, a rule of this court, on filing a copy thereof. Four actions between them had been referred, three in this court and one in the King's Bench, to an arbitrator, who had made his award of distinct sums in each, but the original deed of reference was annexed to the rule obtained in the King's Bench. The terms of the order of reference provided that the agreement to refer should be made a rule of the court of King's Bench or Exchequer. It appeared that Wimpenny brought two of the three actions in the Exchequer for the benefit of James Bates, and it was said that if only one execution or attachment should issue in the K. B., James Bates would have a difficulty in getting his portion of the proceeds; whereas if the order of reference were made a rule of this court, he would get the benefit of the two actions here by attachment or execution upon separate allocaturs in each. Lord LYNDHURST C. B.-I do not think that the agreement to refer, by providing in the alternative that it should be made a rule "of the court of King's Bench or of this court," authorizes two courts to act on a single submission, which has been already made the rule of one. One award has here been made in four actions, parceling out different sums to be paid with costs by the defendant to the plaintiff in respect of each action. Then the application for separate attachments should be made to the King's Bench, where the order of reference is now a rule, and if it cannot be sustained there we cannot entertain it. BAYLEY B.-Here there is only one submission, which has been already made a rule of the King's Bench. That court will effect all the objects of justice between the parties. I also think that we should overstep the words of stat. 9 & 10 W. 3. c. 15., if we made a submission to an award a rule of more than one court of Westminster Hall. The rest of the court concurring, 1832. WIMPENNY V. BATES. The motion was refused. 1832. A declara tion by an administratrix RING against ROXBROUGH. ASSUMPSIT by the plaintiff, administratrix of John Ring deceased. For that whereas the defendant stated a debt heretofore and in the life-time of the said John, to wit, to the intes time, laying the day on 2d Jan. 1832. The letters of administration were after wards stated to have been the intestate's on the 11th Jan. 1831." tate and a pro- on the 2d Jan. 1832, in &c. was indebted to the said mise to pay bim in his life- John in 201. for the work and labour, care and attendance &c. of the said John, by the said John in his lifetime done and bestowed as a surgeon and apothecary at the request of the defendant &c., and in 201. for money lent and paid by the intestate, and in 201. for money received by the defendant to the use of the granted to the intestate, and on an account stated between the deplaintiff "after fendant and the intestate; in the form contained in death, to wit, the Reg. Gen. Trin. 1831. Vol. I. 530. The count then proceeded to the general conclusion there set Held, on spe- forth;-And whereas the defendant afterwards and in cial demurrer, the life-time of the said John, to wit, on the same day and year aforesaid in the county aforesaid, in consideration of the premises respectively, then and there promised to pay the said several monies respectively to the said John on request: yet he hath disregarded his promises and hath not paid any of the said monies, or any part thereof, to the said John in his life-time, or since his death to the said plaintiff, to whom after the death of the said John, to wit, on the 11th Jan. 1831 Where seve in &c. administration of the intestate's goods was granted, to the damage of the plaintiff as administratrix of 20. Profert of the administration, the date whereof is on the day and year in that behalf above mentioned. that this date was repugnant and inconsist ent, and that if it could be rejected the declaration would be bad for want of al leging the day on which a material fact had taken place. ral distinct causes of ac tion, one of which is not sustainable, are stated in one count in assumpsit, ge Demurrer, showing for causes, that it appears by the neral damages declaration that the said defendant was indebted to may be given. Averment John Ring, now deceased, on the 2d Jan. 1832, and it of a promise under a Whereas is good on general demurrer. Where the promise is laid to pay on request, the licet sæpius requisitus need not be laid or proved. 1832. RING บ. is therein alleged that the said defendant promised to pay the said John Ring the several sums of money in the said declaration mentioned on the said 2d Jan. 1832. Whereas it appears in and by the said declara- ROXBROUGH. tion that letters of administration had been and were granted to the said plaintiff of the estate and effects of the said John Ring on the 11th Jan. 1831, whereby it is made to appear that the said plaintiff, as administratrix as aforesaid, has not nor could have any legal right to sue the said defendant, or any right of action against the said defendant. Archbold in support of the demurrer.-1st. Administration is stated to have been taken out at a day before that on which the promises are laid to have been made to the intestate; nor is the sense assisted by any statement of the time of the intestate's death. The causes of action, if any, accrued to the plaintiff since the death, and not to the intestate in his life-time as laid. It is questionable if a repugnant allegation of time can be rejected as surplusage, but if it can, and either date is rejected, the declaration becomes bad for want of alleging a date first to the party's debt, and secondly to the promise to pay, both of which are material allegations. 2d. This form of declaration, which consists of one count only, prevailed before Reg. Gen. Trin. 1 W. 4. (Vol. I. 530,) and is now sanctioned by that rule. The promise is laid to pay "in consideration of the premises respectively." Then as the consideration is clearly bad, the whole declaration is bad. [Bayley B. The promise to pay is entire, being founded on several different considerations. Many authorities show that where general damages are given upon a declaration consisting of several counts, judgment may be arrested if one count be bad; but if several distinct causes of action, one of which cannot |