1843.

DRURY-LANE
COMPANY

v.

CHAPMAN.

furnished or sold in the theatre, and the liberty of using certain fireplaces, for seven years.

Platt, for the defendant.-I submit that the present action cannot be maintained. The defendant came in at the death of his mother under the lease granted to her, and he is therefore to be treated as the assignee of the lease, and the plaintiffs' remedy must be on the lease, and no action for use and occupation will lie.

WIGHTMAN, J.-The capacity in which the defendant. held is one of the questions which I shall leave to the jury.

Platt addressed the jury for the defendant.-The lease to Mrs. Chapman is a subsisting lease, and, being by deed, it cannot be got rid of by parol or by any thing but another deed, and the whole of Mrs. Chapman's interest in the property is in her representatives. I shall put in letters of administration to Mrs. Chapman granted to the defendant and his brother Mr. Frederick Chapman; and they therefore have all their mother's interest in the property till the lease expires, and they and they alone are suable on the lease, which is by deed, and not in an action for use and occupation. But even conceding that the action for use and occupation would lie, the tenant is not liable if the premises are rendered valueless; and it will be shewn that since the making of certain regulations by Mr. Macready, the lessee of the theatre, the saloon has been rendered valueless to the defendant.

Letters of administration of the effects of Mrs. Mary Chapman, dated the 18th of April, 1843, granted to the defendant and his brother Mr. Frederick Chapman, were put in. The letters of administration stated that Mrs. Chapman had a husband who survived her (a).

(a) Lord Coke says (1 Inst. 3 a), "A feme covert cannot take

any thing of the gift of her husband, but is of capacity to pur

Letters of administration of the same date of the effects of Mr. George Chapman (husband of Mrs. Chapman) granted to the defendant and his brother were also put in (a).

It was proved that the sale of refreshments at Drury Lane Theatre had very much decreased in the years 1841 and 1842, after the regulations made by Mr. Macready for the exclusion of women of improper character from the saloon of the theatre, and after the regulations made by him preventing the fruit-women from going into the pit of the theatre to sell fruit there. But it was proved by Mr. Macready that he had taken the theatre of the defendant in the year 1841, "subject to the rights" of the defendant, and that he made these regulations of his own authority.

Knowles, in reply.-It is quite clear from the evidence that the defendant occupied this property not as assignee or representative of his mother for the remainder of her

chase of others, without the consent of her husband; and of this opinion was Littleton, in our books, and in this book, sect. 677, but her husband may disagree thereunto, and devest the whole estate, but if he neither agree nor disagree, the purchase is good; but, after his death, albeit the husband agreed thereunto, yet she may, without any cause to be alleged, waive the same; and so may her heirs also, if, after the decease of her husband, she herself agreed not thereunto." With respect to a wife taking any thing of the gift of her husband, Messrs. Hargrave and Butler, in their note on this passage, say, "But this doctrine must be understood with various limitations. 1. Though the husband cannot convey to the wife im

mediately, yet he may give to a
trustee, for her benefit, and the
gift will be good. Therefore, he
may convey land to her by way of
use, as by enfeoffing or covenant-
ing with another to stand seised,
or surrendering a copyhold to her
use. 2. According to some books,
by custom of a particular place, or
of York, the wife may take by im-
mediate conveyance from her hus-
band. 3. The husband may give to
his wife by last will, because such
gift cannot take effect till his death,
when the coverture is determined.
4. It seems that a donatio mortis
causâ by husband to wife may be
good, because that is in the nature
of a legacy.

(a) The time of Mr. George
Chapman's death did not appear.

N. P.

1843.

DRURY-LANE
COMPANY

v.

CHAPMAN.

1843.

DRURY-LANE
COMPANY.

v.

CHAPMAN.

term under the lease, but as yearly tenant, having made a new and separate bargain for himself, and this is quite manifest, as the letters of administration are dated in April, 1843, and the present action was commenced before that time (a), and the administration was, therefore, an after thought to defeat the present action; and with respect to the other ground of defence, that the defendant's profits have been diminished by Mr. Macready's arrangements, it is not at all shewn that that is in any way attributable to the plaintiffs; indeed, Mr. Macready himself has stated that he took the theatre subject to all the defendant's rights and privileges, and even assuming that Mr. Macready had exceeded his authority in respect of the defendant's rights, that is no reason why the defendant should not pay his rent to the plaintiffs.

WIGHTMAN, J., (in summing up).—The first question in this case which I shall leave to you is, whether you are satisfied that, after the death of Mrs. Mary Chapman, the defendant entered into a new contract with the Committee of Drury Lane Theatre, to hold this property and these privileges on the same terms as the lease; and whether the defendant held under such new taking, or whether he entered into possession after the death of his mother under the lease itself. With respect to the second point, as to the defendant's alleged loss of profits in consequence of Mr. Macready's regulations, I am of opinion, that unless the defendant was deprived of his profits by some default of the plaintiffs, or of those who represent them, and act by their authority, such loss of profits is no defence to the present action; you will, therefore, tell me whether you think what Mr. Macready did, was done by the authority of the plaintiffs, and I also wish you to say how much the property and privileges of the defendant were, in fact, deteriorated by

(a) The declaration in the pre

sent action was dated 28th of

March, 1843, and the plea the 24th of April, 1843.

the changes which took place in the arrangements of the
theatre.

Verdict for the plaintiffs; and the foreman of the
jury said, "We consider it a new taking; and
we think that the alterations were not made
with the authority of the plaintiffs, but by Mr.
Macready's own authority; and with respect
to the third question, we consider that a de-
duction of £150 should be made."

WIGHTMAN, J.-The other facts being found as they are by the jury, I am of opinion that the defendant is not entitled to any deduction at all, and that the verdict must be entered for £450; and I shall give Mr. Platt leave to move to reduce the damages to £300, if the Court think the deduction of £150 can be made.

The verdict was entered for the plaintiff;
damages £450.

Knowles and Corrie, for the plaintiffs.

Platt and Hugh Hill, for the defendant.

[Attornies-Burgess, and Pitcher.]

1843.

DRURY-LANE
COMPANY

v.

CHAPMAN.

ON a subsequent day, Platt applied for a rule to shew cause why there should not be a new trial, or why the damages should not be reduced; but the Court, after taking time to consider, refused a rule.

1843.

Sittings in London after Trinity Term, 1843.

BEFORE LORD DENMAN, C. J.

Where, on a sale of goods bought and sold, notes are given, the

bought and sold

notes constitute
the contract
between the
parties and
not the entry
of the con-

tract made by
the broker in

his book.

TOWNEND and Others v. DRAKEFORD.

TROVER for sealing-wax.-Pleas, 1st, not guilty; and

2nd, that the plaintiffs were not possessed.

It was opened by Crowder for the plaintiff, that 405 chests of sealing-wax had been bought of the defendant by the plaintiffs through Messrs. Lord & Co., who were brokers.

On the part of the plaintiff, Mr. Stovell, the partner of Mr. Lord the broker, was called. He proved the handBut writing of the signature of Mr. Henry Gibson Lord (who bought and sold was a son and clerk of Mr. Lord the broker) to the bought notes, the entry and sold notes of the sealing-wax in question which were

if there be no

in the broker's

book may be resorted to.

If there be a material discre

pancy between the bought and sold notes,

there is no con

tract.

Where the bought note of 405 chests of India sealingwax contained the terms "Prompt 25th June, brokerage 1 per cent., deposit 157. per cent., payable 2nd April," and the sold

note was

"Prompt 25th

June, broker

age per

cent.," and the

deposit wholly

"London, 22nd March, 1842. "Bought by order of Messrs. W. Townend & Co. the following goods. East India Company's conditions, prompt 25th of June, brokerage 1 per cent., deposit 15 per cent., payable 2nd April.

Per Helen Mary
Brightman
Crusader

Chests.

"Your most obedient servants,

16s. per. cwt. in bond.

"H. W. LORD & Co.

"p. HENRY GIBSON LORD."

omitted:--Held, that this was such a discrepancy between the bought and sold notes as to make it no contract, although, with respect to the brokerage, it was stated by one of the special jury that the buyer would pay the broker one per cent. and the seller half per cent.

Whether the signing of bought and sold notes by the clerk of the broker is sufficient. Quare.