part of the business, with Palmer's concurrence. In the second instance, an action was carried on in Palmer's name and with his concurrence, in which he never appeared, but Edmonds acted in it, and, under the circumstances, it must be concluded that he did so with Palmer's approbation: and Edmonds claimed the costs. It must be taken that the whole was done with Palmer's concur

rence.

COLERIDGE, J.(a) My mind has been slow in coming to a conclusion, the consequence of which must be so penal. But although I have struggled against that conclusion, yet, following the principle laid down by Lord Tenterden, and to which we have been referred, I feel bound to concur with the rest of the Court, and to say that this party must be struck off the roll.

Rule absolute.(b)

*696]

*BIRD against HIGGINSON. Saturday, January 31.

The rule of Hil. 4 W. 4, that a plea pleaded in bar of the whole action generally, need not commence with actionem non, nor pray judgment, applies to a plea answering the whole of one count, though there are other counts which it does not answer. Declaration alleged that plaintiff agreed to grant and let, and defendant to take, a messuage, with exclusive license to shoot and sport over a manor, and to fish in the waters thereof during the term, to hold the messuage, right, liberties, and premises, for the term, at a rent; that plaintiff let the messuage, right, liberties, and premises to defendant, who entered into and upon the same, and became and was possessed thereof for the term: Breach, non-payment of rent. Plea, that the messuage was small, and taken by the defendant solely for the enjoyment of the right over the manor, which was extensive; and that the agreement was not sealed by either party. Verification. On special demurrer, for that the plea amounted to the general issue:

Held, that the defendant was entitled to judgment; and that, the demise being partly of an incorporeal hereditament, and not under seal, no rent could be recovered on such demise; and that the declaration could not be treated as a claim of compensation for use actually had of the subject of demise, since it alleged only his entry and possession, and not an occupation.

ASSUMPSIT. The first count of the declaration stated an agreement, made 8th of August, 1833, whereby the plaintiff agreed to grant and let to the defendant, and the defendant to take, a certain messuage or tenement, situate at Dinas Mowddy, in the parish &c., together with "full and free and exclusive license and leave to and for the defendant and his servants, &c., to hunt, hawk, course, shoot, and sport, in, over, and upon all that the manor of Dinas Mowddy, situate in, &c., and to fish in the ponds and waters thereof at all seasonable times during the term therein-after mentioned, doing no wilful," &c., "to hold the said messuage or tenement, right, liberties, and premises, thereby agreed to be let unto the defendant, his executors," &c., from the day of the date, &c., until the 1st of February then next, at a rent of 2007., 1007. payable on 12th of October then next, and 1007. on 1st of February then next, which the defendant agreed to pay to the plaintiff, his heirs, &c. The declaration then averred mutual promises, and that the plaintiff then let unto the defendant the said messuage or tenement, "right, liberties, and premises, so agreed," &c., "from the day," &c.; "and the defendant then entered into and upon the same, *697] and *became and was possessed thereof, for the said term so to him thereof agreed to be granted as aforesaid." And although the plaintiff hath always, &c., yet, &c. (Breach, non-payment of the two parcels of rent.) There was a second count on an account stated

The first two pleas are not material. Third plea,-" And for a further plea as to the first count of the said declaration, the defendant says that the said

(a) Williams, J., had gone to hear motions in the bail court. (6) See In re Hodgson and Ross, Easter term, (May 9th).

manor, at the time of making the said agreement therein mentioned, was a manor containing divers, to wit, 32,000 acres of land; and the said messuage or tenement in the said agreement mentioned then was a small house, taken by the defendant, and intended to be occupied by him, solely for the more conve nient enjoyment of the exclusive right or liberty in the said agreement mentioned to be demised or granted to him in and over the said manor. And the defendant further says, that the said agreement, mentioned to be made between the plaintiff of the one part and the defendant of the other part, was and is an agreement under the respective hands of the plaintiff and of one John Eldad Waters, as the agent of the defendant in that behalf; and the same was not nor is sealed with the seal either of the plaintiff or of the defendant, or of any person or persons by them or either of them thereunto lawfully authorized: wherefore the said agreement was and is void in law; and this the defendant is ready to verify," &c. (No prayer of judgment,)

[*698

To this plea the plaintiff demurred specially, assigning for cause, that, whereas the plea is pleaded to the first count only of the declaration, yet the said third plea does not aver that the plaintiff ought not to have or maintain his aforesaid action thereof against him the said defendant; and also that, although the said third *plea is pleaded to the said first count only as above mentioned, yet the said plea does not contain any prayer of judgment; and also that the said third plea amounts to the general issue; and also that the said third plea is argumentative in this, viz., that it indirectly denies that any promise was made by the defendant as in the said first count mentioned; and also that the said third plea is wrongly concluded in this, viz. that, although it denies that any valid promise was made as in the declaration mentioned, yet it does not conclude to the country, but with a verification; and also that the said third plea is in other respects, &c.

The demurrer was argued on a former day of this term. (a)

Kelly, in support of the demurrer. First, as to the causes specially assigned. The want of prayer of judgment is clearly an informality, unless the case be within the rule of Hil. 4 W. 4, General rules and regulations, 9, 5 B. & Ad.

V.

But that rule is confined to pleas "pleaded in bar of the whole action generally." The third plea applies, not to the whole action, but to the third count only. Again the plea amounts to the general issue, and should conclude to the country, for it avers no additional fact, since the declaration sufficiently shewed that the agreement was not under seal, and, being shaped in assumpsit, must be upon a simple contract. The plea is an argumentative denial of the simple contract laid in the declaration. Further, the plea gives no answer to the declaration. It will be contended that this appears to have been a grant of an incorporeal hereditament, *and that such a grant could not be made without [*699 seal. But it does not appear that any such hereditament has been granted; there is a mere parol license to sport, accompanying the use and o cupation. It is a very different case from a transfer of a right, such as that in a several fishery, as in The Duke of Somerset v. Fogwell, 5 B. & C. 875. Nor is this like a case of distress, which would require a technical demise of the he reditament in virtue of which the distress was made, as in Gardiner v. Williamson, 2 B. & Ad. 336.

Sir John Campbell, contrà.. As to the omission of prayer of judgment, the rule clearly applies; for "the whole action" means the whole complaint in s single count; the distinction is, not between a single count and the whole declaration, but between parts of a count and the whole count (whether single or joined with others), containing the cause of action which the plea professes to answer. As to the plea amounting to the general issue, it could not, even be fore the new rules, have been specially demurable on that ground. It was not then true that all which could be shewn under the general issue was incapable

(a) January 23d, before Lord Denman, C. J., Littledale and Williams, Js.

of being pleaded specially. It was allowable to raise the point of law on the record, in order to simplify the issue presented to the jury, or to produce an issue in law. Thus bankruptcy of the plaintiff, release, accord and satisfaction, infancy, and many other matters, might either be pleaded specially, or be proved on non-assumpsit. In an action for goods sold and delivered, a plea that the goods were held by the plaintiff's factor, who was indebted to the defendant *700] *in more than the value, and who, with the plaintiff's privity, sold and delivered them to the defendant as the factor's property, was held to be good though specially demurred to as amounting to the general issue. Carr v. Hinchiff, 4 B. & C. 547. Yet the matter of that plea might have been shewn under non-assumpsit. But, since the rules Hil. 4 W. 4, Pleadings in particular Actions, Assumpsit, 1, 3, 5 B. & Ad. vii. viii. the defendant has no choice, but must plead specially. The want of a deed under seal could not have been shewn under non-assumpsit. [Lord DENMAN, C. J. Would not the plaintiff have been non-suited on his shewing that the contract was under seal?] The plea denies that there was such a deed. Lastly there could have been no valid contract of the kind shewn on this record, but under seal. This is a demise of a fishery in gross, and of a right of sporting. [LITTLEDALE, J. Does it authorise the defendant to carry away what he gets?] That appears to be the effect of the grant; and, as a demise, it should be under seal: Duke of Somerset v. Fogwell, 5 B. & C. 875. Or, if it be a mere easement, without profits a prendre, a deed is equally essential: Hewlins v. Shippam, 5 B. & C. 221. The corporeal and incorporeal hereditaments are demised together, and the rent has regard to both, as in the case put in Doubitofte v. Curteene, Cro. Jac. 453, (see The Dean and Chapter of Windsor v. Gover, 2 Saund. 302,) of a demise of a barn worth 47., with a rectory, the whole at a rent of 1007. and an eviction from the incorporeal hereditament would have been a good answer to an action for the rent: Dalston v. Reeve, 1 Ld. Raym. 77. Eviction from a part would be an answer as to the whole *rent. *7011 And it appears from Gardiner v. Williamson, 2 B. & Ad. 336, that, the rent being reserved on the corporeal and the incorporeal hereditament jointly, there would be no distress for any part of the rent, the incorporeal hereditament not being demised by deed. There is therefore, no valid reservation of rent at all. [LITTLEDALE, J. Are there not cases where, a rent being nominally reserved out of two things, of which one was capable of having rent issuing out of it, and the other not, the rent has been held to issue wholly out of the former ?](a) The Court in Gardiner v. Williamson, 2 B. & Ad. 336, held such a reservation, without deed, wholly invalid. Here the whole demise is void, according to Doe dem. Griffiths v. Lloyd, 3 Esp. N. P. C. 78. It is true that this is so far a license, that if the defendant had taken any game, and the plaintiff had interfered, the former might have treated that as a breach of license: but the action here is, not on any act done, nor on a quantum meruit, but upon a contract. Indeed the declaration is bad; for it should have alleged a contract by deed. It is true that one party might have sealed, and not the other; and perhaps he who had sealed might have brought assumpsit, in such a case, if the contract could be created without deed. But here there is no grant, unless the grantor seal. His seal would have created a covenant, by the mere words of grant.

*702] Kelly, in reply. The purpose for which the house was taken is perfectly immaterial: the allegation in the *plea, therefore, respecting that, may be dismissed from consideration. Then as to the license. If this action will not lie upon such a parol license (and it is admitted on the other side that such a license is given by the agreement), what remedy has the plaintiff? Covenant is out of the question; and so, upon the authorities, is distress. [WILLIAMS, J. Why not use and occupation?] If that action lie, there is an end of the difficulty arising from the want of sealing. Indebitatus assumpsit lies

(a) See 19 Vin. Ab. 105, tit. Reservation (B); ibid. 122. Reservation (0).

[*703

for the use and occupation of a fishery: there are precedents of this, as in Chitty on Pleading.(a) It is true that the easement could not be granted, except under seal: but it does not follow that no action can be brought for the actual enjoyment of an easement by the plaintiff's permission. [LITTLEDALE, J. You are suing on the contract, not on use and occupation. You might have added a count for use and occupation, except for the new rules.](b) The declaration alleges an entry and possession by the defendant: it is therefore good, if indebitatus assumpsit be maintainable at all. Now, the want of the grant under seal is not fatal to indebitatus assumpsit for actual enjoyment. [LITTLEDALE, J. Was there ever a case in which a demise being averred, the plaintiff was allowed to reject that averment, and insist on the use and occupation?] The action for use and occupation always proceeds upon a contract between the parties; whether that be express or implied, can make no difference as to the manner of pleading. Doe dem. Griffiths v. Lloyd, 3 Esp. N. P. C. 78, is inapplicable: there the question was, what interest the defendant in ejectment possessed under the conveyance which was impeached: here the question is, whether the defendant is to pay for what he has actually enjoyed? The law in Dalston v. Reeve, 1 Ld. Raym. 77, is not disputed; but it is inapplicable where the claim is made for bygone enjoyment of a part: for, in such a case, a jury would estimate the damages by way of apportionment of rent. In the Dean and Chapter of Windsor v. Gover, 2 Saund. 303, Saunders, in his argument, (which is recognized by Parke, J., in Gardiner v. Wilkinson, 2 B. & Ad. 339,) says, "If a barn with a portion of tithes be demised reserving 1007. a year rent, it is reserved as well in respect of the tithes as of the barn; and if the tithes are evicted, the rent must be apportioned." [LITTLEDALE, J. That means an eviction by the lessor.] It shews at least that the whole rent is not necessarily extinguished or suspended by that which affects only a part of the thing demised. It is indeed held, that if there be eviction from part of the thing demised, there can be no action on the demise: but that does not affect the action for enjoyment. Cur, adv. vult.

Lord DENMAN, C. J., now delivered the judgment of the Court. After stating the declaration and third plea, his lordship proceeded as follows:The plaintiff demurred, assigning the omission to pray judgment for special cause: but we think the defect is expressly cured by the ninth of the new rules':(c) "In a plea, or subsequent pleading, intended to be *pleaded in bar of the whole action generally, it shall not be necessary to use any [*704 allegation of actionem non," "or any prayer of judgment." "The whole action generally" means the whole cause appearing in the count to which the plea is pleaded.

The other objection is of a more general nature, namely, that the agreement is for the conveyance of an incorporeal hereditament, and ought, therefore, to have been under seal. And we are clearly of that opinion. We wished however for some time, to consider whether the plaintiff might not be entitled to recover on this count, for the actual enjoyment of the thing demised. On examining it more accurately, we find that this count is not so framed, for it only alleges that the defendant entered and became possessed for the term, which be might do without a single hour's occupation of the premises. There are other objections, but this is decisive Judgment for the defendant.

(a) 2 Chitty on Pleading, 36; 6th ed. And see Precedents in Pleading, by Joseph Chitty, jun., part i. p. 138, note (ƒ).

(b) Hil. 4 W. 4, General Rules and Regulations, 5. 5 B. & Ad. iii. (c) Hil. 4 W. 4, General Rules and Regulations, 9. 5 B. & Ad. v.

*DOE on the demise of JAMES DOUGLAS, and FRANCES, his Wife, against ELIZABETH LOCK. Saturday, January 31.

Tenant in fee simple devised lands in London, and a manor and lands in P. in Somersetshire, to a tenant for life, with power to let the lands in London for twenty-one years in possession, and also to make leases of the lands in the manor of P. for ninety-nine years, determinable on one, two, or three lives, in possession or reversion, of such parts as were or had been anciently demised for one, two, or three lives, so as the ancient and accustomed yearly rents and reservations should be thereby reserved; and also to let all other lands in P. for twenty-one years, all the leases being made and granted in the same manner and form, and with and under such and the like reservations, restrictions, covenants, conditions, and agreements, as were usually and customarily contained in leases of the same kind in the several and respective parishes and places where the same premises were situate. Leases for ninety-nine years determinable on lives as aforesaid, having been made by the tenant for life:

1. To shew whether the first proviso in such power be complied with, the previous leases of the same premises, but not other similar leases in P., are evidence; and semble that the latest preceding lease of the same premises is the most proper evidence.

2. To shew whether the second proviso be complied with, leases of the same kind in P. are evidence.

3. Quære, whether a lease be good which reserves the ancient amount of yearly rent on the premises, but makes it payable quarterly, the ancient reservation having been of a half-yearly payment?

4. A lease under the power, with a condition for re-entry on the rent being twenty days in arrear, is not bad, although the condition in the ancient lease was for re-entry after rent being twenty-one days in arrear.

5. Nor is such lease bad for restricting the re-entry to the case of there being no distress upon the premises, the ancient restriction of the re-entry being to the case of there being no overt distress upon the premises.

6. Quære, whether, the ancient lease having reserved, as a heriot, the best beast of the lessee (being one of the lives), his executors, administrators, or assigns, or such person as should be in possession of the premises, and entitled to the same by virtue of the lease, a lease reserving only the best beast of the lessee (being one of the lives), be good?

7. But a lease is not bad under the power, which reserves the best beast of the person or persons who, for the time being, shall be tenant or tenants in possession of the premises.

8. A lease is not bad which reserves suit, &c., to and at the mill of the lessor (tenant for life, her heirs and assigns, and also to the person or persons to whom the freehold of the premises should belong, by grinding all corn and grain at the mill, the ancient lease having reserved the suit to and at the mill of the lord of the said manor, and the manor having been devised to the tenant for life and the remainder-man in fee, with the lands. 9. The reservations of rent, heriot, suit of court, and suit of mill, are strictly reservations: a reservation and exception (so called) of the liberty of hawking, hunting, fishing, and fowling, is not legally a reservation or exception, but a privilege granted to the lessor. 10. Exception and reservation (so called), from the demise, of timber trees, mines and quarries, are exceptions, not reservations.

11. Nor would these necessarily be construed as coming within the word reservations in a power, though the power mentioned rent and reservations, and there appeared to be · in fact no reservation besides, except rent; at any rate the construction would not be such where there were in fact reservations besides rent.

12. Quære, the ancient lease having excepted all mines and quarries of stone and slate, and all other mines, whether a lease is bad in which the exception is of all mines of tin, toll tin, tin works, copper, lead, and all other mines, minerals, and metals whatsoever.

13. The ancient lease exempting from the demise all timber trees and trees likely to prove timber, now standing, growing, or being, or which during the term granted should stand, &c., on the premises, and the lease under the power excepting all timber trees, bodies of pollard and other trees whatsoever, standing, &c.; the latter lease is not good, the difference in the exception varying the subject-matter of the demise, and therefore the rent not being the ancient rent.

THIS was an ejectment tried at the Somersetshire Summer Assizes, 1831, before Alderson, J. A verdict was taken for the plaintiff, subject to the *706] opinion of this Court upon a case, which was substantially as follows:The premises in question are within the manor of Porlock, in the parish of Porlock, in Somersetshire.

:

William Blathwayt, being seised in fee of them, made his will, dated 21st of