1838.

May 31.

THE QUEEN, ON THE PROSECU-
TION OF H. TAYLOR, V. THE
MANCHESTER AND LEEDS
RAILWAY COMPANY.

Certiorari-Affidavits.

Where a certiorari is sought to bring up an inquisition that it may be quashed for some error, a copy of it must be shewn to the Court when the rule is applied for, or the applicant must swear positively to some defect contained in it.

An affidavit that A. B. objects that there is a certain defect in an inquisition, is insufficient.

This was an application for a certiorari to remove an inquisition, taken on the 2nd of February last, to assess the valuation of certain premises at Manchester, taken by the company under their act, the 6 & 7 Will. 4. c. cxi., for the purposes of the railway. A rule nisi had been obtained upon affidavits, which alleged, in effect, that the company had claimed certain lands and premises not included in their parliamentary line, nor allowed to be taken by their act; and it was stated, that the company having given notice of the summoning of a jury to assess the value, Mr.

Taylor served a protest upon the company, and upon the sheriff of the county of Lancaster, previous to the entering upon the inquisition, in which he denied the right to take certain premises therein specified. Mr. Taylor's affidavit, after setting out a copy of this protest, stated, that the inquisition was taken, and the jury gave a verdict for a sum of 17,000l. to be paid by the company for the purchase of the premises previously described, which it was said, "are in such inquisition, stated to be particularized in the said warrant, and to be by the act of parliament authorized to be taken by the company, but which this deponent asserts is not the fact;" and that the sheriff pronounced judgment for the purchase-money. The affidavit continued thus: "And the defendant further objects, that the inquisition does not set forth or contain the notice to treat, required to be given by the company to the parties interested in the lands previously to the summoning of a jury, which notice the defendant considers and is advised the inquisition. ought to contain." It was stated, that all the facts set forth in the protest were true.

Cresswell, Sir W. W. Follett, and Tomlinson, now shewed cause, and after objecting that as it was enacted in the statute, that

the inquisition should be final upon the parties, the certiorari was taken away, (which objection, however, the Court overruled,) alleged that it did not appear that the inquisition had the defect complained of (1), as it was not brought before the Court by the applicant, and that for a like reason the Court could not compare the property contained in the schedule of the act of parliament, with that in the inquisition.

Sir F. Pollock and Sir G. Lewin, in support of the rule, contended, that the affidavits were strong enough to warrant the Court in ordering the certiorari to issue to bring up the inquisition, the affidavit stating that it does not contain the matter required.

LORD DENMAN, C. J.-No doubt this certiorari will issue if anything has been taken from the applicant, which the act of parliament did not authorize to be taken; but we must clearly see that it is so, and I do not understand how we can see it unless a copy of the inquisition be set out, or unless it be shewn that an exact copy of it cannot be obtained; and the party distinctly affirms, that something has been done contrary to the act of parliament. That is not done where the applicant says he further objects that such and such defects exist. That mode of stating the objection is not enough. It merely shews that he is making an objection which he believes to be a bona fide objection. With respect to the other matter, the inquisition stating generally, that there was an authority, it should have been stated distinctly that there was not. That is not done by the statement that some of the lands were not in the schedule, because the company have power to take others, if certified by two Justices of the Peace. The existence of that certificate ought to have been negatived.

[Sir F. Pollock referred to the affidavit, in which the applicant asserted that the statement in the inquisition was not the fact.]

LORD DENMAN, C.J.-I do not understand that; he should have stated how it was not the fact. But his affidavit is wholly

(1) As to which, see The King v. the Trustees of the Norwich and Watton Turnpike Roads, 5 Ad. & El. 563; s. c. 6 Law J. Rep. (N.s.) K.B. 41. NEW SERIES, VII.-Q.B.

insufficient to shew that the proceeding, which is prima facie right, is defective. disclaim the argument, that we are to have the inquisition brought up, to see whether it is perfect or not; but we ought to have it made out to us that there is some defect, though we may not pledge ourselves on granting the rule to say that it is fatal. We cannot encourage applications of this sort, unless we distinctly see there is some matter of fact upon which, in point of law, some doubt may be raised.

LITTLEDALE, J.-A regular copy of the inquisition ought to have been set out, or a statement of what it contains.

PATTESON, J.-In regard to the use of the word object, it is said, that any person of common sense must understand what it means. Then, why cannot the party use the word swear? I will not encourage a man to use another word, and then come and say it means the same thing. In another court the practice is for a party to say, I farther submit. That is allowed, I apprehend, because it is a question of law to which the party deposes. As to the other point, we ought to be very cautious how we grant any certiorari, unless we see some objection that will probably be fatal.

WILLIAMS, J.-It is true, we are not called upon to quash this inquisition, but before we grant the certiorari, to bring it up, some presumption should be raised that it does contain an error. In regard to convictions, they are not complete until the last moment, and the error takes place at the hearing; yet we require it to be shewn that the error was at the hearing, and is not a mere matter of form, which will be set right. Here the inquisition was and must be as it is. It was filed at the Sessions, and a copy might have been obtained if the applicant had applied for it. It ought to have been presented to us in solido.

This was an action of libel, to which the defendants pleaded two pleas-Not guilty, and a justification, on which issue was joined.

The trial took place at Guildhall, the Sittings after Michaelmas term, 1836, before Lord Denman, C. J., when the jury found a verdict for the defendants on the first issue, upon the ground that the publication was not a libel. No evidence was offered in support of the justification, and the jury found a verdict for the plaintiff thereon. The defendants obtained the record, and prepared the postea, alleging that the jury found for the defendants on the first issue, but were discharged by consent on both sides from giving any verdict on the second issue. In Easter term, 1837

Bompas, Serj. on behalf of the plaintiff, obtained a rule, calling on the defendants to shew cause why the Nisi Prius record, with the marshal's indorsement on the panel, should not be delivered up to the plaintiff to enable him to prepare the postea, and enter up final judgment thereon, with the costs of the application.

The Attorney General and W. H. Watson now shewed cause. As the jury found a verdict for the defendants on the general issue, and therefore negatived the existence of the libel, it would be most incongruous to suffer the other issue, which

justifies the truth of the libel, to be found for the plaintiff. The jury cannot say that the libel is not true, when they have already said that the defendants did not publish the libel. The only way to avoid that incongruity, is for the Judge to discharge the jury from finding any verdict upon the second issue. Many cases shew that the Judge can do so-The King v. Johnson (1), Cossey v. Diggons (2), Dibben v. the Marquis of Anglesea (3), Powell v. Sonnett (4), and Cook v. Caldecot (5).

[LORD DENMAN, C. J.-I did not discharge the jury from finding any verdict on this issue. I should think it most unjust that a party should defend himself by casting strong and violent imputations against the plaintiff, and yet not be liable to pay the plaintiff's costs upon that issue.]

If the jury find one issue for the defendant, why need they go on to determine other issues, which will be wholly immaterial? No doubt, if the postea be drawn as the plaintiff seeks to have it, the plaintiff will be entitled to the costs of the issue -Spencer v. Hamerton (6); and that is contrary to the justice of the case.

Bompas, Serj., Humfrey, and S. Hughes, in support of the rule, were stopped by the Court.

LORD DENMAN, C. J.-The argument goes to this extreme length, that not only the Judge has the power to discharge the jury, but that he is bound to do so. This question did not arise in the cases cited, because the two findings of the jury would there have been inconsistent. But if we see that there is a mode by which the findings of the jury here can be explained without any necessary inconsistency, we must consider that they have acted in that manner, and must put such construction upon their findings. The result of the verdict then is the same as if the jury had

(1) 5 Ad. & El. 488; s. c. 5 Law J. Rep. (N.S.) Exch. 282.

(2) 2 B. & Ald. 546.

(3) 2 C. & M. 722; s. c. 4 Law J. Rep. (N.S.) Exch. 278.

(4) 3 Bing. 381; s. c. 1 Dow Parl. C. (N.s.) 56; 1 Bli. N.S. 552.

(5) 4 Car. & Pay. 315.

(6) 4 Ad. & El. 413; s. c. 5 Law J. Rep. (N.s.) K.B. 114.

Poor Rate-Occupation.

A. engaged to serve R. & Co. as a clerk and brewer, at an annual salary, with the privilege of living in a house in the brewery yard. He did live there for some time, but afterwards took another house, in his own name, though the landlord stated that he considered R. & Co. to be his tenants. A. lived in this house, but R. & Co. paid the rent and taxes, which were assessed upon -Held, that he was liable to be rated to the poor-rate in respect of the occupation of this

latter house.

A:

Covenant-Lessor and Lessee.

By indenture dated March 21, 1828, A. demised to B. habendum from the 25th of March instant, for the term of seven years thence ensuing, wanting seven days, yielding yearly and every year during the said term, the yearly rent of 2851., by four equal quarterly payments, on the 25th of March, the 24th of June, &c. in every year, commencing from the said 25th of March then instant. There was a covenant to pay the said yearly sum on the said days appointed for payment :· Held, that the lessor was entitled to recover the rent for the last quarter of the seventh year, though it was not complete until the term had expired.

(7) See, as to the discharge of the jury by the Judge without consent-Tinkler v. Rowland, Ad. & El. 868; s. c. 6 Law J. Rep. (N.s.) K.B. 269.

Covenant on an indenture of demise, dated March 21, 1828, whereby the plaintiff demised a certain messuage to the defendant, habendum from the 25th of March then instant, for and during the term of seven years thence next ensuing, wanting seven days, yielding and paying therefore, yearly and every year during the said term, the yearly rent or sum of 2851., by four equal quarterly payments, on the 25th of March, the 24th of June, the 29th of September, and the 25th of December in every year, commencing from the said 25th of March then instant. The defendant covenanted yearly and every year during the continuance of the said demise, to pay the said yearly sum of 2851., on the days and in manner therein appointed for payment. Breach, non-payment of the said yearly rent in every year; and that in the last year of the term, defendant omitted to pay more than one-half the rent thereof, and that on the 25th of March 1835, two quarterly payments of the said yearly rent, chargeable in respect of the same premises. during the same two quarters, on that day, in that year, were due and payable to the plaintiff. The defendant paid into court 71. 10s. for the rent due at Christmas 1834, and demurred to the declaration so far as it applied to the other quarter.

Ogle, in support of the demurrer.-The plaintiff claims a quarter's rent due on the 25th of March 1835, but the term of the lease expired seven days previously; therefore, no rent was due on that day. The covenant is to pay during the continuance of the term, on certain specified days; the day when the rent was said in this declaration to be due, was not one of those days. The intention of the parties can only be gathered from the covenant itself. If the plaintiff be entitled to a compensation for the occupation of the premises during the term, he must resort to some other remedy.

Bayley, contrà.-The plaintiff was to have rent for seven years. If the defendant's construction were correct, he would only be entitled to six years and three quarters rent. There is nothing to shew that the rent was due on the 25th of March 1835; it may be considered as due on the first day of the year, and then that is a day within the continuance of the term-Hill

v. Grange (1). According to Hutchins v. Scott (2), where this point was considered, it was decided, that though the landlord might not distrain, still the remedy on the contract remained. Baden v. Flight (3) is also an authority for the plaintiff, and Long v. Burrows (4) is not applicable.

Ogle replied. It cannot be said, that the plaintiff is claiming the rent for the first quarter of the year, because it is admitted that one quarter's rent has been paid, and the plaintiff must have applied that payment to the first quarter's rent. Stevenson v. Lambard (5) shews that an action of covenant cannot be maintained against the lessee for a portion of the rent covenanted to be paid.

LORD DENMAN, C. J.-The defendant has contracted to pay 2851. in each of the seven years, but quarterly payments are to be made on certain days. The term begins on the 25th of March, and the payments are to be made from that time, but the first payment is not thrown forward to the 24th of June. The first year is to be considered as commencing on the 25th of March, during any time of which, the rent may be paid.

It

LITTLEDALE, J.-The sum of 2851. is to be paid yearly, by four quarterly payments, on particular days. It is not intended, It is not intended, however, that the rent is not to be paid except on those days. The lease, though inartificially drawn and difficult to be construed, may, however, be reconciled. may be read, as expressing that the first year's rent is to be paid on some day in the year commencing on the 25th of March. The mention of the quarter days, is only to point out the order in which the payments are to be made. There is no objection to our construing the word from as on, for the former word is sometimes inclusive in its signification. Such a construction agrees with the intention of the parties, and we may treat this as a forehand rent. PATTESON, J.-I cannot entertain the

(1) Plow. Com. 164, 171.

(2) 2 Mee. & Wels. 810; s. c. 6 Law J. Rep. (N.S.) Exch. 186.

(3) 3 Bing. N.C. 685; s. c. 6 Law J. Rep. (N.S.) C.P. 190.

(4) 1 Lord Kenyon, 217; (5) 2 East, 575.

slightest doubt, but that the parties intended that the annual sum of 2851. should be paid seven times. The words of the lease, are "yielding and paying the yearly sum of 2851. ;" so far there is no doubt. But it is added, that it is to be paid by four equal quarterly payments, on the 25th of March, &c. It is contemplated, that seven such annual sums should be paid one in each year, but the question is, whether the intention is so expressed. As the term is to commence on the 25th of March, and the payment is to be made on the 25th of March, it may appear that the parties intended a forehand rent; in which view, the last quarter would clearly become due during the term. But if that be not a fair construction of the lease, there is a reservation of a yearly rent during the term, which is to be paid during each year, on any of the days mentioned, and then there is an express covenant to pay on the days mentioned. The payment might be made on the 25th of March in the last year, and the objection fails.

WILLIAMS, J.-There can be no doubt as to the intention of the parties, and we ought to adopt any mode of effectuating it. When I see that the date of the lease was the 21st of March, and the first payment of rent was to be made on the 25th of March, I think it was the intention of the parties that the rent should become due on the 25th of March; if so, the whole sum would become payable in the last year. Judgment for the plaintiff.