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*LOW against BURROWS. Friday, Jan. 16.

To an action by a drawer of a bill of exchange against acceptor, defendant pleaded that there was no consideration for the acceptance, concluding with a verification and plaintiff replied that there was a consideration, to wit, the sale and delivery of goods, concluding to the country: Held, that the plaintiff was not bound to prove the consideration alleged, and that it lay on the defendant to shew want of consideration. But that, if the replication had concluded with a verification, the consideration alleged would have been part of the issue, and the plaintiff must have proved it.

ASSUMPSIT by the drawer of a bill of exchange for 361. against the acceptor. Plea, as to 207., that the consideration was the sale and delivery of a cow to the defendant by the plaintiff, on which sale the cow was warranted by the plaintiff to be sound; and allegation that she was not sound; and died in consequence; and, as to the remainder of the sum of 367., that there was no consideration for the acceptance; concluding with a verification. Replication, as to the 20%, that the plaintiff did not warrant the cow; and, as to the remainder that there was a consideration for the acceptance, to wit, the sale and delivery of two cows by the plaintiff to the defendant; conclusion to the country. Similiter. On the trial before Lord Denman, C. J., at the London sittings after last Michaelmas term, Platt, for the plaintiff proved the bill of exchange, and rested his case there. Ball, for the defendant, contended that the plaintiff was bound to prove the consideration alleged in his replication, and he cited Green v. Armitstead, tried before Alderson, B. at the sittings in London after Trinity term 1834, in which, to a plea of no consideration, the plaintiff had replied that there was a consideration, and had set it out; and the learned Judge held that the plaintiff could not close his case on proving the bill, but must go farther and prove the consideration which he had alleged. tioned that Parke, B. had ruled the other way. The Lord Chief Justice was of opinion that it lay upon the defendant to shew want of consideration. *Ball then produced evidence to prove the warranty; and other evidence to prove that the 167. was merely an accommodation to the plaintiff: and Platt called witnesses in reply, but offered no proof of the consideration laid in the replication.

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The jury found that the warranty was not proved; and, as to the rest of the case, they gave a verdict for the plaintiff for 57. some payments having been admitted. Ball then applied for leave to move to enter a nonsuit, which the Lord Chief Justice refused.

Ball, in this term (January 14th,) moved (a) for a new trial on the ground of misdirection, and also on the evidence; and he renewed the objections taken at the trial. Cur. adv. vult.

Lord DENMAN, C. J., now delivered the judgment of the Court. In this case the question is, whether the particular consideration laid in the replication should have been proved by the plaintiff. That depends upon whether the replication conclude with a verification. If it had so concluded here, the particular consideration would have been parcel of the issue; but the conclusion being to the country, and the particular consideration laid under the videlicet, the issue is merely whether there was any consideration. As to the evidence, unless suspicion had been raised respecting the 167., to the extent of making a primâ facie case, there was no answer to the action. Rule refused.(b)

(a) Before Lord Denman, C. J., Littledale and Williams, Js. (6) See Percival v. Frampton, 2 C. M. & R. 180.

*WATSON against WALTHAM, ROBERTS, HAMMOND, and MOORHEAD. Friday, January 16.

In trespass quare clausum fregit, the defendants pleaded that the plaintiff, being seised in fee, surrendered the premises, which were copyhold, to the use of A. upon the trusts declared by a certain deed, for securing the repayment of principal and interest to W.; and that by the deed, to which the plaintiff was party, it was covenanted that A. should stand seized in trust to resurrender to the use of the plaintiff on payment of the principal and interest; but in case of default, upon trust that A. should at any time thereafter, when W. should think proper, sell the premises and surrender them to the use of the purchaser and the plea averred that it was further covenanted that the premises should at all times remain and be to the use of A., but nevertheless upon and for the trusts, intents, and purposes before declared, and should and might accordingly be peaceably and quietly enjoyed, and the rents and profits received and retained accordingly without let, &c.

The plea then alleged that the plaintiff had not paid the principal money, wherefore the defendants, as the servants and by the command of A., under and by virtue of the said indenture, broke and entered, &c., in order that A. might take, hold, and enjoy possession of the premises. On special demurrer,

Held, that the power given by the deed, and the covenant for quiet enjoyment, were subject to the condition that W., cestuy que trust, should think proper to have the premises sold. And (assuming that the deed could operate as a license to A. to enter although he had not been admitted tenant),

That the plea was bad in not stating that W. had thought proper to enforce the power of sale, or that the defendants entered for the purposes of the deed: although the demurrer did not raise these objections.

Held, also, by Lord Denman, C. J., that the power to sell, and covenant for quiet enjoyment, did not imply a power of entry. Contrà, semble, per Littledale, J.

TRESPASS. The declaration contained three counts, for breaking and entering plaintiff's dwelling-house, mill, &c., damaging the doors and locks, amoving plaintiff, &c. Plea, to the first count, that the dwelling-house, &c. were parcel, and a customary tenement, of the manor of Skidby, in Yorkshire, demised and demisable by copy of the court-rolls, by the lord or his steward, in fee-simple or otherwise, at the will of the lord, &c. That the plaintiff, before the commencement of the suit, to wit, &c. was seised in his demesne as of fee, at the will of the lords of the said manor, of the said dwelling-house, &c; and being so seised, he, without the court of the then lords (the master, fellows, and scholars of Trinity College, Cambridge,) surrendered into the hands of the said lords, according to the custom &c., by the hands and acceptance of their steward, *the said dwelling-house, &c., and his estate and interest therein, to the [*486 use and behoof of Thomas Owst Atkinson, his heirs and assigns, according to the custom, &c., for ever, upon the trusts, and to and for the intents and purposes declared of and concerning the same, for securing the payment to the defendant Waltham, his executors, &c., of the sum of 2007. with interest at 5 per cent., in the indenture next after mentioned. And thereupon afterwards, and before the said times, when, &c., to wit, on the 2d of May 1829, by a certain indenture then and there made between the plaintiff of the first part, the defendant Waltham of the second part, and T. Ô. Atkinson of the third part, (profert,) in consideration of 2001. paid to the plaintiff by Waltham, and 10s. by Atkinson, it was covenanted and agreed and declared by and between the said parties to the said indenture, so far as they were respectively interested, and the said plaintiff did thereby expressly direct, that he, the said T. O. Atkinson, his heirs and assigns, should stand and be seised of and interested in the said dwelling-house, mill, and premises in the said first count mentioned, subject nevertheless to a certain conditional surrender to one Ann Duckett, therein-before mentioned, and the principal sum of 6007., and interest thereby secured; upon, amongst others, the trusts, and to and for the intents and purposes, following, that is to say, that in case the said plaintiff, his heirs, execu tors, &c., should, on the 2d of November then next ensuing, well and truly pay

unto the said Joseph Waltham, his executors, &c., the said sum of 2007. with interest, &c., then upon trust at any time or times after such payment, upon the request, and at the proper costs and charges of the said plaintiff, his heirs, *&c. to resurrender and reassure the said premises unto and to the use of *487] the said plaintiff, his heirs and assigns, or in such manner as he or they should direct or appoint; but in case default should be made in payment of the said 2007, or interest, or any part of the same respectively, contrary to the true intent and meaning of the said indenture, then upon trust that T. O. Atkinson, his heirs or assigns, should, at any time or times thereafter, when he the said J. Waltham, his executors, administrators, or assigns, should think proper, sell and dispose of the said last-mentioned premises by public auction. or private contract, and for such price or prices as he or they should think reasonable, and should surrender and assure the same when sold to the purchaser or respective purchasers thereof, or as he, she, or they should respectively direct. And the plaintiff did thereby further covenant, that all and singular the said dwelling-house, &c., should and might from time to time, and at all times thereafter, remain, continue, and be (subject nevertheless as therein aforesaid) to the use of the said T. O. A., his heirs and assigns, but nevertheless upon and for the several trusts, intents, and purposes therein-before declared of and concerning the same, and should and might be accordingly peaceably and quietly had, held, and enjoyed, and the rents, issues, and profits thereof received and retained accordingly, without any lawful let, suit, trouble, denial, eviction, molestation, interruption, disturbance, claim, or demand whatsoever, of or by him the said plaintiff, or his heirs, or any other person or persons whomsoever, other than and except the said Ann Duckett in respect of the said 6007. and interest therein-before mentioned to be secured to her; and that free and clear, or *488] freed and clearly acquitted, *&c., of and from and against all and all manner of former and other estates, rights, titles, charges, and incumbrances whatsoever, the said surrender to the said Ann Duckett and the principal moneys and interest thereby secured only excepted; as by the said indenture, &c. And the defendants further say, that the said plaintiff hath not paid the said sum of 2007., or any part thereof, and the same is still wholly due and unpaid; wherefore the said defendants at the said times when, &c., as the servants, and by the command of the said T. O. Atkinson, under and by virtue of the said indenture, and by and with the consent of the said Ann Duckett, broke and entered the said dwelling-house, &c., the outer doors being open, and stayed, &c., and because the doors in the first count mentioned, being inner doors, were wrongfully locked and fastened, &c., so that the said T. O. A. could not hold and enjoy the said dwelling-house, mill, and premises in the first count mentioned, in so ample and beneficial a manner as he was entitled to do, and there was no person present to open the said doors, the defendants at the said times, when, &c., as the servants, and by the command of the said T. O. A. necessarily and unavoidably forced and broke open, &c., in order that the said T. O. A. might take, hold, and enjoy possession of the said dwelling-house, &c., as they lawfully might, &c. Similar justifications were pleaded to the other

counts.

The plaintiff demurred to the first plea, assigning for causes the want of any averment that Atkinson was ever admitted tenant by the lords of the manor; or that they ever granted him any seisin in fee according to the custom of the *489] manor or otherwise; or that *Ann Duckett was ever admitted tenant; or that the plaintiff ever delivered to her, or to Atkinson, possession of the premises; or that he was ever dispossessed thereof, or of his legal estate and interest therein, and right to the possession thereof; or that Atkinson had any possessory right or legal interest to justify the alleged entry and trespasses: or that the defendants, as the servants or by the command of Ann Duckett, committed the trespasses: and that the plea was an informal plea of leave and VOL. XXIX.-16

license. There were like demurrers to the other plea, The defendants joined in demurrer.

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Knowles, in support of the demurrer. In the first place, the pleas are bad for not stating that the surrenderee was ever admitted. Without admittance no estate passed to him; the right of possession continued in the surrenderor; Berry v. Greene, Cro. Eliz. 349; Rex v. Dame Jane St. John Mildmay, 5 B. & Ad. 254. Then, does the deed of uses make any difference? That deed is only part of the surrender; if nothing passes by the surrender, nothing passes by the deed. The statement as to the deed is, that it was thereby covenanted, agreed, and declared, and the plaintiff "did thereby expressly direct," that Atkinson should stand seised to the uses after mentioned. That conveyed no greater estate than the surrender itself gave; the covenants that the premises should be to the use of Atkinson upon the declared trusts, and that he should peaceably enjoy the same, cannot be considered as a license entitling the party to enter upon a copyhold. If it could, the necessity of admittance might always be done away *with. [Lord DENMAN, C. J. A right of possession may be given without admittance. A copyholder may make a lease, or give a license to enter upon the premises, although the party licensed may not be entitled to enter as owner.] At all events, this was a mere covenant for quiet enjoyment; if it has been broken, the covenantee might have a right of action, but he has not a right of entry. If the defendants rely upon this deed as giving a power, from which a right of entry is to be inferred, it becomes necessary to consider what the power is, and whether it has been strictly pursued. The trusts declared are, if Waltham be paid his principal and interest, to re-surrender to the use of the plaintiff; but in default of payment, to sell, and surrender to the purchaser. In either event the purposes of the deed are to be effected by a surrender, and that could not take place without admittance. The power of entry, supposing it to be given, is to be exercised only for the purpose of sale, and when Waltham shall think proper to sell: the pleas do not aver that Waltham desired Atkinson to sell, or that the entry was for that purpose.

Cresswell, contrà. It may be conceded that a mere surrender, without admittance, conveys no right of entry; and that the surrenderee, if he enter without having been admitted, is liable to an action; but that is, if there be nothing to justify his entry beyond the mere surrender. The question here is, whether there be not such justification. It is not necessary that a right of entry should have been expressly given by the deed, if a power has been given which cannot be exercised without entry. The plea states that the plaintiff directed [491 that *Atkinson should stand seised in trust to re-surrender if the plaintiff should pay the principal and interest, and in case of default, to sell the premises when Waltham should think proper: then follows an independent cove nant, that the premises shall remain and be to the use of Atkinson, "upon and for the several trusts, intents and purposes before declared of, and concerning the same," and shall be accordingly peaceably and quietly had, held, and enjoyed, and the rents, issues, and profits thereof received and retained accordingly without any lawful let, suit, &c., claim or demand whatsoever, of, or by the said plaintiff.' This is a covenant which could not take effect without entry. Nor is there any thing in this covenant to make any desire on the part of Waltham necessary before Atkinson shall take the rents and profits; the objection, therefore, that he is not stated to have "thought proper" to sell, does not bear upon this part of the deed. It cannot be contended that the covenant is ineffectual as a license, without admittance. [Lord DENMAN, C. J. For mere possession, admittance is not necessary.] If the argument for the plaintiff on this point were correct, license could never be pleaded in an action for trespass to copyhold. And this covenant implied a right to enter. [LITTLEDALE, J. The pleas state that the defendants entered by virtue of the indenture, but not that they did so for the purpose of selling, or for any speci

fied purpose.] That objection is not stated on the demurrer. The plea shews. that the defendants entered for the purposes of the deed, and is sufficient, at least without special demurrer. If this action lay, the plaintiff would be liable *492] to a cross action upon the covenant for quiet enjoyment, and the damages recovered in this suit would be the measure of the damages *in that. The present pleas, therefore, may be well pleaded, to avoid circuity: Dean v. Newhall, 8 T. R. 168, recognising the doctrine of Lacy v. Kinnaston, Holt's Rep. 178, 2 Salk. 575, 1 Ld. Ray. 688, 12 Mod. 548, on this point; 2 Wms. Saunders, 150, note (2), and Keilw. 34 b. pl. 2, there cited.

Knowles, in reply. The question comes to this point: whether it is a sufficient plea that the defendants entered by virtue of the deed? If Atkinson was authorized to enter, it was only upon the request of Waltham. The covenant for quiet enjoyment is by its terms made upon the trusts, and for the intents and purposes before declared: now the power before given is, in default of payment, to sell, at any time when Waltham shall think proper. The covenant does not attach unless the power has been strictly pursued. Supposing that the defendants might have entered in order to sell, it does not appear by these pleas that the entry was not for other purposes. [Lord DENMAN, C. J. Your argument as to the covenant for quiet enjoyment is, that it only goes to warrant the title of the trustee as such, and does not, of itself, give him power to do any particular act.] That is the effect of the covenant.

Lord DENMAN, C. J. It appears to me that the deed as set out in the pleas, and which has been supposed to operate as a license to enter upon these premises, gave no such power as that contended for. The deed constitutes Atkinson a trustee generally for Waltham, the lender of 2007. to the plaintiff, and *193] gives him certain powers to enforce payment. In case of default in paying *the principal or interest, he is authorized to sell the premises; but the pleas do not state that the entry in question was made for the purpose of selling. Nor was it necessary, for that purpose, that an entry should be made. And at all events the power given is only to sell when Waltham shall think proper; and it is not averred that he did so. Till that happens, the case in which the power is to be executed does not arise. I at first thought that the covenant for quiet enjoyment might be looked at as unconnected with the rest of the deed, (a) but that covenant is expressly stated to be upon and for the trusts, intents and purposes before declared. It therefore does not exempt the defendants from shewing that they entered for the purposes, and were authorised to do so by the circumstances mentioned in the earlier part of the deed.

LITTLEDALE, J. In a common case of mortgage, the mortgagee may enter on default made by the mortgagor; and so might Atkinson have done in this, which is a case of copyhold, if he had been admitted. Here no admittance had taken place, but the defendants rely upon the power contained in the deed of uses, and upon the covenant for quiet enjoyment: and I think these would afford a sufficient defence, but for the qualification introduced as to Waltham. Waltham is the lender of the money; Atkinson only his trustee. The deed says that, if default be made in the payments, Atkinson shall, at any time thereafter when Waltham shall think proper, sell and dispose of the premises: there *494] is no right, therefore, to enter but as Waltham thinks proper. Then the *covenant that the premises shall remain and be to the use of Atkinson, is made "nevertheless, upon and for the several trusts, intents, and purposes before declared:" that covenant therefore is still governed by the reference to what Waltham shall think proper: and the subsequent clause is, that the premises shall be peaceably and quietly enjoyed, "accordingly;" that is, if Waltham shall think proper to have the deed put in force. That continues to be a condition precedent. Had it not been for that limitation, the trustee, who has

(a) See, as to the effect of a covenant for quiet enjoyment, taken alone, or in connection with other parts of a deed, Doe dem. Pritchard v. Dodd, 5 B. & Ad. 689.

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