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1806.

TURNER

versus

and ROTHER HAM.

N covenant for non-payment of rent, and for not repairing, the plaintiff declared against the defendants as assignees of one Barber, on a lease, granted RICHARDSON the 1st January, 1789, by Sir J. C. Turner containing covenants to repair, and to pay rent, &c. with an averment that on the 28th January, 1802,Sir J. C. Turner assigned his interest to the plaintiff, and that, after Barber had entered and was possessed, to wit, on the 1st January, 1796, all Barber's, the lessee's, interest came to the defendants by assignment,who entered and were possessed of the premises for the residue of the term, &c;. and assigned a breach in the non-payment of rent, for three years from August 1st, 1801, &c. and a further breach that the premises were out of repair.

The defendants pleaded, first, that the premises did not come to them by assignment, in manner and form, &c.; 2dly, that they did not enter into the said demised premises, in manner and form, &c. $dly, that they were not possessed of the premises, for the residue of the term, in manner and form, &c. and 4thly, that Barber being a trader, &c. became bankrupt; that he was indebted in 1001. to a creditor, that a commission issued and he was declared a bankrupt, that his personal effects (in general terms,) were assigned to the defendants in trust for the equal benefit of the creditors of the said Barber, but that the right, title, interest, and term of the said John Barber of and in the said demised premises, with the appurtenances, was not nor is particularly mentioned or specified in the said indenture of assignment, from the major part of the commissioners, that the defendants are no otherwise assig nees, and that they have not at any time hitherto taken possession of the said demised premises, with the appartenances, &c., 5thly, after stating the bank Tapley as before, that the defendants have not at any

1806.

TURNER

versus

RICHARDSON

HAM.

day of

time hitherto entered into the said demised premises, with the appurtenances, &c.: 6thly, after stating the bankruptcy as before, that the defendants have not at and ROTHER. any time hitherto consented to accept the estate, right, title, interest, and term of the said John Barber, of and in the premises as part of the estate and effects of the said John Barber the said bankrupt; 7thly, after stating the bankruptcy and assignment, and negativing any other assignment as before, that they the said defendants after the making the said indenture, to wit, on the in the year of our lord to wit, at Newcastle upon Tyne aforesaid, renounced the estate, right, title, interest, and term of the said John Barber, of and in the said premises with the appurtenances, from being and being to be considered as part of the estate and effects of the said John Barber, the bankrupt, as aforesaid. To which the plaintiff replied, tendering issues upon all these several pleas, and upon the last, that before the defendants renounced as aforesaid, they accepted and were possessed of the said demised premises, with the appurtenances, for the residue of the term. In all of which, issues were joined, the defendants alleging, in their rejoinder to the last replication that before they renounced, &c. they did not accept, &c.

The cause was tried before CHAMBRE, J. at the last summer assizes for Newcastle, when the only proof that was given of the defendants having consented to the assignment of this term was in their having advertised the premises for sale in the following terms: "To be sold by public auction at the house of Hugh Brodie Bigg market Newcastle upon Tyne on Monday the 19th December, 1796, between the hours of three and five in the afternoon subject to such conditions as shall then be produced. All those, &c. held by lease for 344 years from Lammas 1789, under Sir J. C. Turner, knight, situnte in or near the Castle Garth, let to different tenants

1806.

1

versus

and ROTHER.

HAM.

for upwards of 2001. per annum. The respective tenants, upon application will shew the premises, and TURNER further particulars may be known by applying at the office of Messrs. Fenwick, in Gate-street, Newcastle." RICHARDSON The defendants had never received any rents and the plaintiff demanding, for the 3 years arrears of rent, at 1321. 6s. per annum, 3961. 18s. and also 1601. for repairs, making a total of 5561. 18s., the defendants under, the advice of their attorney, Mr. Fenwick, issued this advertisement and put the premises up to sale, but there were at that time no bidders. One part of the premises comprised a meeting-house for some dissenters, and the rest were small tenements which were very much out of repair. Afterwards a person offered 1001. for the lease of the meeting-house, but, as that would not pay the plaintiff, the defendants refused to accept it, and interfered no further, but they did not give notice of their abandonment to the plaintiff, and upon this evidence the learned judge thinking that it did not amount to an acceptance of the interest of the bankrupt Barber, by his assignees, the plaintiff was nonsuited.

COCKELL, Serj. in Michaelmas term last obtained a rule to shew cause why there should not be a new trial, and relied upon the case of Broome v. Robinson at N. P. before Lord Kenyon and the case of Bourdillon v. Dalton.

Wednesday, 3d December, 1800, at nisi prius, before Lord Kenyon, C. J.

Broome v. Robinson. This was an action for use and occupation from Lady day to Michaelmas, 1800. The defendant was the assignee of a bankrupt, who was the plaintiff's lessee of the premises. The plaintiff applied to the defendant upon the bankruptcy, to know if he meant to take the bankrupt's interest in the lease. The defendant answered that, if he did

1806.

TURNER

VETSUS

RICHARDSON

HAM

"In the case

PARK and HOLROYD shewed cause. cited, as tried before Lord Kenyon, there was no question but that the party had taken possession for a and RoTnER- time; but here no possession was taken, the assignees only put the estate up to auction, merely to ascertain whether it was of any value or not; one of them being the only meeting-house of the kind at Newcastle. Nobody would bid for the estate, and, before they abandoned it to the lessor they were bound to ascertain the value, because they would be liable to the creditors, if they abandon what is valuable, and do not do every thing which is necessary to shew that it is so or not."

Lord ELLENBOROUGH, C. J. "How do you reconcile it, with respect to the crown, your holding yourselves out to be proprietors in this sale by auction, when you are not so ?"

PARKE. "The crown has not been defrauded by it."

Lord ELLENBOROUGH, C. J. "Yet you meant to do so; you cannot buy in without giving yourselves out

not let it by Lady day, he would give it up. The bankruptcy was in the January preceding, and at Lady day, the defendant paid the rent and offered the plaintiff the key.

Gibbs, for the defendant, contended, that the defendant as assignee was not liable;

But Lord Kenyon, C. J. held, that although he might have refused to accept the lease, at first, yet he could not take it in part and afterwards refuse it, because he found it would not answer and he could not let it.

Verdict for the plaintiff.

Peake's Ni. Pri. Ca. 238. and 1 Espin. 233, and cited Salk, 297, and 1 Lev. 127, às to executor's waving a

term.

to be the owners of the estate. And would it not be evidence to go to a jury, if you had, previous to the sale, given in your name as owner to the auctioneer."

1806.

TURNER

versus

RICHARDSON

HAM.

PARK. “There was no evidence of that being done and ROTHERS and the court will not assume that it was.' He then cited Eaton v. Jaques.*

Lord ELLEN BOROUGH, C. J. addressing himself to Cockell, Serj.; "What have you to answer to the words entered and were possessed?'"

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COCKELL and RICHARDSON, in support of the rule. "The nature of the premises was known to the assignees; they entered or did that which is tantamount to taking possession. There was no communication to Mr. Turner the landlord, but their own attorney, by public advertisement, states that they are assignees of the premises, that they have a term in them, and they are put up to be sold by public auction: which is equivalent to what was done in the case of Broome v. Robertson, in which Lord Kenyon says, that, although it might have been rejected at first, yet the assignee could not take it in part and reject it in part."

Lord ELLENBOROUGH, C. J. "They state nothing in the advertisement, from which you can infer that they had made any entry or had taken possession in any manner. In the case of Broome v. Robinson, there could be no other decision."

LAWRENCE, J. "They only assume, that they have the power of selling the tenements, if they can find a purchaser."

RICHARDSON. In all other cases the assignment is sufficient to make the assignee liable, and here, at

2 Dougl. 438, 455.

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