bond was driven to a court of equity. Here, before the statute, the obligor would have been obliged to apply to a court of equity for relief if he had not paid the money at the day. This is therefore clearly a bond within the mis chief contemplated by the legislature.

BEST, J. I am clearly of opinion, both upon authority and principle, that this case is not within the statute of the 8 & 9 W. 3, c. 11. That statute is highly remedial, and calculated to advance justice and to give relief to plaintiffs up to the extent of the damage sustained, and to protect defendants from the payment of more than what is justly due, and ought not to be so construed, as to compel plaintiffs to put unnecessary matter on the record. It appears to me that a suggestion is required in two cases; first, where upon the first breach, all that may become due is not payable, as in the case of an annuity or money payable by instalments, and then justice requires that the party should recover only what is due, which cannot be ascertained without a suggestion. The second case is where *the damages are unliquidated, and must be ascertained by the verdict of a jury, as in cases of breaches of covenant. In this case, the whole sum that the plaintiff could ever become entitled to, became due at one time. There was no occasion, therefore, to summon a jury to assess the damages; they were the subject of computation only.

[*95

Rule discharged.

v. JOHNSON.

Where a latitat has by mistake been served upon a wrong person; the right person may afterwards be served with an alias issued upon it.

LATITAT issued against Thomas Johnson was, by mistake, served on his father, J. Johnson, who lived in the same house. The plaintiff's attorney inquired for common bail, and a person in the office said it was filed. A declaration was then delivered against T. J. The attorney returned it, saying that he had appeared for J. J. sued as T. J. Plaintiff's attorney said he had no action against J. J., and sued out an alias and pluries against T. J., who was served with the pluries.

Comyn moved to set aside the writ, and contended, that having been served on J. J. it was functus officio, and therefore no alias could be sued upon it. Patteson, contrà, contended that the service upon J. J. was altogether a nullity, and that the latitat was not in any way affected by it.

BAYLEY, J. (a) The service of the latitat upon a wrong person by mistake was the same as no service at all. The writ was not affected by it, and consequently the alias and pluries were good.

(a) The only judge in court.

Rule discharged.

*HARDING v. WILSON.

46

[*96

Where a lease of premises described them as abutting on "an intended way of thirty feet wide," which was not then set out, and the soil of which was the property of the lessor; and an underlease was granted, describing the premises as abutting on an intended way,' 71 not mentioning the width: Held, that the underlessee was entitled to a convenient way only, and could not maintain an action against the owner of the soil for narrowing the road to twentyseven feet, no actual injury having been sustained. The underlease was of premises "together with all ways thereunto appertaining." A right of way over the original lessor's soil would not pass by those words. Per HOLROYD, J.

CASE. The declaration stated that the plaintiff was possessed of a dwellinghouse, and, by reason thereof, was entitled to a way from a common highway to his house, for horses, cattle, carts, and carriages; and that defendant obstructed the way by building a wall upon it. Plea, not guilty. At the trial before ABBOTT, C. J., at the Westminster sittings after last Michaelmas term

the following evidence was given. In August, 1809, a lease of a piece of ground was granted by one Sloane to W. Bolton; the abuttal on one side was described as "an intended way of thirty feet wide." The ground over which the way was to be made also belonged to the lessor. In 1811, Bolton underlet to plaintiff's landlord (one Pittard) a part of the ground so demised, "together with all ways thereunto appertaining;" and it was described as abutting "on an intended way," without mentioning any width. Pittard built a house upon it, of which the plaintiff was tenant. In 1820, the defendant purchased the ground on the opposite side of the "intended way" mentioned in the first lease, and also the soil of that way, and built a wall, leaving a road only twenty-seven feet wide in front of the plaintiff's house. When the two leases above mentioned were made, the road had not been set out, but there had been a road thirty feet wide for about four years before the alleged injury was committed. It did not appear that the plaintiff had sustained any actual injury from the erection of the wall, the road being wide enough for carriages to pass and turn *97] round. The lord chief *justice observed, that the plaintiff had not a grant of a way of any particular width, and left it to the jury to say, whether, under those circumstances, the wall was a nuisance. The jury found a verdict for the plaintiff, with nominal damages; and in Hilary term a rule nisi for a new trial was obtained, against which

Gurney and Andrews now showed cause. The plaintiff's landlord was entitled to a way thirty feet wide. The first lease described the intended way as thirty feet wide; and the second lease, speaking of "the intended way," must have meant one of that width. No doubt the first lessee was entitled to a way thirty feet wide, and his under-tenant had the same rights. At all events, the question, whether the wall were or were not a nuisance, was properly left to the jury; and although according to the evidence it was possible for a carriage to turn round upon the road, still they were warranted in finding that it was not so commodious as before the wall was built. That was properly a question for them, and there is no reason to disturb their verdict.

Scarlett and Littledale, contrà. The lease to Pittard did not contain any grant of a way of a particular width. The property is described as bounded by an intended way, not saying how wide that was to be. There was no privity between the under-tenant and the original lessor so as to entitle him to all the privileges granted by the first lease; and even if there were the description in that, it does not amount to a grant of a way thirty feet wide. At the utmost, it would only amount to a covenant by Sloane to Bolton to make a way of that width; *98] and until the way was set out, the party could *only have a right to a convenient way. Although the way may at one time have been thirty feet wide, still the plaintiff must fail unless he can show a grant; for his possession has not been long enough to warrant the presumption of one. It must be admitted that he is entitled to a convenient way, and accordingly his declaration claims generally a right of way for horses and carriages; and the evidence fully established that he has a convenient way for them, notwithstanding the erection of the wall. If Bolton was entitled to a way of thirty feet wide, no doubt he might abridge that right in an under-lease; and here he did so, by using the words "intended way," without specifying any width. If the plaintiff had in this instance the right which he claims, all under-tenants must be entitled to every privilege contained in the original lease.

ABBOTT, C. J. It appeared by the evidence at the trial, that the road now left in front of the plaintiff's house was as wide as convenience required, and that the plaintiff himself had declared that he sustained no inconvenience from the erection of the wall. His landlord, however, has a right to sue in his name; but as no injury has been sustained, cannot recover unless he establishes his right to a road of a particular width. Adverting to the lease from Sloane to Bolton, the former does not grant a way thirty feet wide, but only describes the

land demised as bounded by an intended way of that width.

That is merely

an expression and declaration of an intention. If, indeed, that operated as a grant, the plaintiff's right might possibly have been made out; but if it was not a grant, a departure from the intention expressed will not give a right of aetion, unless some actual damage has been sustained. Here the evidence negatived any such damage. I am therefore of opinion that there ought to be a new trial.

[*99 BAYLEY, J. I am of opinion that this question depends upon the construction of the original lease. Bolton had a right to some way, and he might have bargained for a road of a particular description. Without any express stipulation the law would give him a way of necessity, for the convenience of the houses which were to be built. In this case there was not any express stipulation as to the width of the way, but the abuttal was described as an intended way thirty feet wide. That was merely the intention of the owner of the soil. He does not expressly engage that the road shall be of that width. It was his intention to make it so at the time; but he uses no words which could fetter his intention, and prevent a deviation from it, provided a convenient way was left for Bolton, and his under-lessees.

HOLROYD, J. The plaintiff's claim, as stated in his declaration, is of a right to pass and repass on foot and on horseback, and with cattle, carts, and carriages. He does not specify the particular width of the way; but the declaration would be sufficient, provided he proved a title to a way thirty feet wide. The ground on which the plaintiff's messuage is built, and the road also, originally belonged to Sloane. When he demised it, the party renting would have no right of way but such as was incident to the lease, or such as was expressly given. Upon the evidence, it appears that he still has a convenient way. But the plaintiff says that by the lease, a way thirty feet wide is given either expressly or by implication. It certainly is not given *expressly. The intended way is no part of that which was granted; and the declaration [*100 of an intention is not an implied grant. Again, the under-lease describes the ground demised, and the ways granted by the words all ways thereunto appertaining." The road in question being over the soil of the original lessor, would not pass by those words. Leases generally contain the words "heretofore used," by which such a way would pass. But in the absence of them, or any other words to the like effect, the under-lease would confer nothing more than a convenient way. The rule for a new trial must therefore be made absolute.

BEST, J., concurred.

66

Rule absolute.

BISHOP v. HOWARD.

Where A. who held premises under a lease which expired at Midsummer, refused to give up the possession at that time, and insisted upon notice to quit, and afterwards continued in possession till Christmas, and paid rent at Michaelmas and Christmas: Held, that this was conclusive evidence of a tenancy, and that the landlord was entitled to recover a quarter's rent due at Lady-day.

ASSUMPSIT for use and occupation. Plea, general issue. At the trial before ABBOTT, C. J., at the London sittings after last Michaelmas term, it appeared that the defendant had, under a lease which expired at Midsummer, 1821, been in possession of a house belonging to the plaintiff. A short time before Midsummer the plaintiff applied to the defendant to give up the possession, who refused to do so without notice, and continued in possession until Christmas, when he tendered the keys to the plaintiff, who refused to accept them. No positive evidence was given of the payment of any *rent at Michaelmas; [*101 but it was proved that the defendant paid a quarter's rent in March,

1822, and took a receipt for it, as for a quarter's rent due to the plaintiff at Christmas. This action was brought to recover a quarter's rent alleged to be due at Lady-day, 1822.. The lord chief justice left it to the jury to say, whether a new agreement for a tenancy could reasonably be inferred from that which had passed before Midsummer, 1821, and from the payments above mentioned, or whether it was merely a holding over by the defendant. The jury found a verdict for the defendant; and in Hilary term a rule having been obtained for a new trial,

Scarlett and R. Scarlett now showed cause. After the expiration of the old lease the defendant was merely a tenant at will, and there could be no yearly or quarterly tenancy unless there were a fresh contract. But that was negatived by the jury. Right dem. Flower v. Darby, 1 T. R. 159, proceeded on the ground of such supposed contract. Here, no such contract existed before Midsummer, 1821, and therefore no continuation of it could be presumed. No notice to quit was necessary at Midsummer, for the term ended on a precise day. Messenger v. Armstrong, 1 T. R. 53. And the defendant had a right to quit at Christmas when he tendered the keys of the house, the jury having found that no fresh contract was made. It appears as if there had been a mistake between the parties, and that they supposed the old tenancy to end at Michaelmas. That explains the defendant's refusal to give up the possession at Midsummer, *102] and does away with the idea that any new tenancy was contemplated by the parties. In Zouch dem. Ward v. Willingale, 1 H. Bl. 311, where the landlord had distrained after notice to quit, that was certainly held a waiver of the notice; but there the defendant had before been tenant from year to year. Here there was no such previous tenancy; and the jury negatived the existence of a new agreement.

F. Pollock, contrà. The evidence established a tenancy from year to year, or at least from quarter to quarter, as a presumption of law, and it was not a fit question for the consideration of the jury. Before Midsummer, the plaintiff asked if the defendant would give up the possession, and the defendant refused to do so, and claimed a notice to quit. He must then have considered himself a tenant, and what was formerly a tenancy at will is now held to be a tenancy from year to year. Doe dem. Flower v. Darby; Doe v. Watts, 7 T. R. 83; Doe v Weller, 7 T. R. 478. It is not necessary that rent should have been paid for a whole year; payment for one quarter at Christmas was sufficient. Had the landlord brought ejectment against the defendant without notice, the production of the receipt for rent would have been an answer to the action.

ABBOTT, C. J. It occurred to me at the trial, that the refusal to quit at Midsummer, and the payment of rent at Michaelmas and Christmas, were facts on which a new contract of renting the premises might or might not be presumed; and I considered it as a question for the jury, and not as a question of law. I therefore left it to them to say, whether a tenancy was created, or whe*103] ther there was a mere holding over by the defendant; and they found for him. If those acts were conclusive evidence of a new tenancy from year to year, my direction was wrong, and there ought to be a new trial. My learned brothers think that the commencement of another year and the payment of rent concluded the question in favour of the plaintiff. I have still some slight doubts upon the question, but defer to their authority.

BAYLEY, J. It appears that, before Midsummer, in a conversation between the plaintiff and defendant, the latter insisted upon his right to have a notice to quit; that he was holding himself out as tenant of the premises. He continued in possession until Christmas, and in March following, paid rent for the quarter ending at Christmas; that was evidence that a quarter's rent had been paid at Michaelmas. If he paid that money as rent, it took away his power to say that he was not tenant, as the receipt of it took away that power from the landlord. In the case put of an ejectment brought to recover possession, the productior.

of the receipt or proof of the payment of rent at Michaelmas would have been a bar to the action; and the situation of the plaintiff would be singularly hard if he could not maintain either use and occupation, or ejectment. I think, therefore, that there should be a new trial. HOLROYD and BEST, Js., concurred.

Rule absolute.

*The KING v. THOMAS DOLBY.

[*104

The panel of tales having been quashed in a special jury case, on the ground of unindifference in the sheriff: Held, that a venire facias was properly awarded to the coroner, although two of the special jurymen appeared and were sworn on a former occasion.

Upon an award of tales at Nisi Prius, it is not necessary that the tales should be selected out of persons accidentally present; they may be selected out of persons whose presence the sheriff or coroner has taken previous means to obtain.

INDICTMENT for libel. The case came on for trial before ABBOTT, C. J., and a special jury, at the Middlesex sittings after Michaelmas term, 1821. Two of the special jurymen only having appeared, the prosecutor prayed a tales; the defendant challenged the array of tales, on the ground that John Garratt, Esq., one of the two persons who together constituted the sheriff of Middlesex, was, at the time of arraying the panel of tales, one of the prosecutors of the said indictment. Upon which challenge the prosecutor took issue, and triers were immediately appointed, who found for the defendant on the challenge. The panel of the tales was thereupon quashed, and the cause made a remanet to the sittings after Hilary term, 1822. In the course of that term a rule was obtained for entering a suggestion on the roll, that John Garratt, who, together with W. Venables, made one sheriff, &c., was one of the prosecutors of the said indictment; and further ordering, that the jury process should be directed to the coroners of the county of Middlesex. In pursuance of the said rule, a venire and distringas issued to the coroners to summon the special jury; which being accordingly effected, the cause again came on for trial on the 26th February last. In order to be prepared with a panel de circumstantibus, a considerable number of persons were summoned by the coroner. The cause having been called on, and only two special jurymen attending, a tales was prayed by the prosecutor. It was objected by the defendant's counsel, that there ought [*105 to have been a writ of decem or octo tales; but this objection was overruled, and the lord chief justice called on the coroners, to summon instanter such of the bystanders as in their discretion they should think fit. Mr. Sterling, the only coroner present, was proceeding to obey this order; it was objected by the defendant's counsel, that the venire was awarded to the coroners in the plural, and that the return must be made by both. The lord chief justice allowed the objection, and the case was made a remanet. The indictment again came on for trial at the adjourned sittings after Trinity term, 1822, and the special jurymen having been called over, and six having appeared, amongst whom were the two who appeared on the first occasion, the officer was proceeding to swear talesmen, when the coroners' return was objected to, on the ground, that as two special jurors had appeared when the case was first down for trial, the coroners ought to have then summoned a sufficient number to make up the deficiency, instead of summoning a full jury. This objection was overruled. It was then objected that the coroners, in violation of the statute which directed that the tales should be chosen de circumstantibus, had, by letter, requested persons to attend as jurors. The tales were taken from the common jury panel, from which talesmen were usually summoned. The lord chief justice overruled the objection, and the defendant was tried, and found guilty. A rule nisi for a new trial was obtained, in Michaelmas term, upon three grounds: first, because the coroners had summoned the talesmen, instead of taking those who were accidentally present; secondly, that there was a mistrial, it appearing