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1806. TN covenant for non-payment of rent, and for not ? repairing, the plaintif declared against the defen

TURNER
T

rersus dants as assignees of one Barber, on a lease, granted RichardSON the 1st January, 1789, by Sir J. C. Turner containing an covenanls to repair, and to pay rent, &c. with an averment that on the 28th January, 1802,Sir J. C. Tura ner assigned his interest to the plaintiff, and that, after Barber had entered and was possessed, to wit, onthe 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 froin August 1st, 1901, &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. 3dly, 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 cominission 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 appartenances, was not nor is particularly mentioned or specified in the said indentare of assignment, from the major part of the commissioners, that the defendants are no otherwise assignees, and that they have not at any tiine hitherto taken possession of the said dcmised premises, with the appartenances, &c. ; 5thly, after stating the banktaptry as before, the the defendants have rot at any

1806.

TURNER

versus RICHARDBON and ROTHER

NAN.

ţime hitherto entered into the said demised premises,
with the appurtenances, &c.: 6thly, after stating the
bankruptcy as before, that the defendants have not at
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 Burber the said bankrupt; 7thly, after sta-
ting the bankruptcy and assigninent, and negativing
any other assignment as before, that they the said
defendants after the making the said indenture, to wit,
on the day of . 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 appurte-
nances, from being and being to be considered as part of
the estate and effects of the said John Barber, the bank-
rupt, as aforesaid. To which the plaintiff replied, ten-
dering 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 de-
fendants alleging, in their rejoinder to the last replica-
tion that before they renounced, &c. they did not ac-
cept, &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 adverrised 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 191h 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 34 years from Lummas'1789, under ŞirJ.C.Turner, koight, situsite in or near the Castle Garth, let to different tenants

URNER

and ROT BR.

HAN.

for upwards of 2001. per annum. The respective 1806. tenants, upon application will shew the premises, and more further particulars may be known by applying at the verseas

» RICHARDSON office of Messrs. Fenwick, in Gate-street, Newcastle.un The defendants had never received any rents and the plaintiff demanding, for the 3 years arrears of rent, at 1991. 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 coinprised 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 ibis 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.

COčKELL, 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 Bour. dillon v. Dalton.*

* Wednesday, 30 December, 1800, at nisi prius, before Lord Kenyon, C. J.

Broome v. Robinson. This was an action for use and occupation from Lady duy 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 tbe bankrupt's juterest in the lease. The di tendant answered that, if he did

Versus
ARDSON

THER-
HAM

1806.

PARK and HOLROYD shewed cause. " In the case

cited, as tried before Lord Kenyon, there was no quesTURNER

tion but that the party had taken possession for a ON 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 lo the crown, your holding yourselves out to be proprietors in this sale by auction, when you are nut so?"

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

Lord ELLENBOROUGH, C. J. “Yet you meant to do 50; 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 deferdant 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.

Verlict for the plaintiff.

Peake's Ni. Pri. Ca. 238. and i Espin. 233, and cited Salk. 297, and i Leo, 1:7, às to caecutor's raving a term.

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to be the owners of the estate. And would it not be 1806. evidence to go to a jury, if you had, previous to the to sale, given in your name as owner to the auctioneer.", versus

RICHARDSON Park. There was no evidence of that being done and and the court will not assume that it was.” He then cited Eaton v. Jaques.*

Lord ELLEN BOROUG#, C. J. addressing himself to Cockell, Serj. ; “ What have you to answer to the words' entered and were possessed?'”. · 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. Ro. bertson, 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 teneinents, if they can find a purchaser."

RICHÅRDSON. "In all other cases the assignment iş sufficient to make the assignee liable, and here, it

* ? Dougl. 438, 455.

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