that in the certificate of the ship's register she was stated to be of the burthen of 230 tons, but in point of fact she measured 269 tons. She was partly laden, and had 90 passengers on board, and a crew of 17 men, including the master. Her cargo was stowed in the hold, and not between decks. On the part of the defendants it was admitted that, if the vessel was to be deemed and taken as of the burthen stated in the register, there were more passengers on board than the law allowed, and consequently the detention of the vessel by the officers of the customs was justifiable; but it was contended that, according to the true construction of the act of parliament, the vessel had no more passengers on board than she was allowed to take, and consequently, the detention being unlawful, the defendants were not liable in this action, inasmuch as they were hindered and prevented from performing the voyage, by inevitable accident, within the meaning of the contract. The Lord Chief Justice was of opinion that, according to the sound construction of the 43 G. 3. c. 56. s. 2. the certificate of the ship's register must be deemed and taken to be conclusive evidence of her burthen; and it being admitted that the vessel had more passengers on board in proportion to her burthen so evidenced than the law allowed, the plaintiff was entitled to a verdict. The plaintiff had a verdict accordingly, and

now

Copley, A. G. moved for a new trial, and contended that, although the tonnage mentioned in the register was 230; yet inasmuch as the vessel actually measured 269 tons, the number of passengers was not disproportioned to the tonnage, and consequently she was not liable to seizure.

take on board a greater number of persons, including the crew, than in the proportion of one person for every two tons of that part of such ship or vessel remaining unladen; and such goods, wares, and merchandise, shall at the sight and under the direction of the collector or comptroller, or other officer of the customs, at the port or place where such goods, wares, and merchandize, shall be taken on board, be bestowed and disposed of in such manner as to leave good and sufficient and wholesome accommodation for the proportion of persons thereby allowed in such case to be received on board."

1824.

BISHOP

0.

MACINTOSH

1824.

BISHOP

v.

It may be true that with respect to a vessel not carrying a cargo, the tonnage is to be deemed and taken to be that mentioned in the certificate of the ship's register; but still, MACINTOSH. if the vessel is only in part laden with goods, then the actual tonnage may be taken into consideration; and therefore the vessel having been improperly detained, the defendants come within the exception contained in the contract between the parties.

ABBOTT, C. J.-We are all of opinion that this case is too plain for argument. The words of the Act admit of no doubt, that whether a vessel be partly laden or not with goods, she shall be deemed and taken to be of such burthen as is described and set forth in the certificate of her register. Here the vessel was described in the certificate of the register as being of the burthen of 230 tons only, and we think that her actual admeasurement cannot be taken into consideration in calculating the number of passengers taken on board.

Rule refused. (a)

(a) The statute abovementioned has been since altered by an act of the present session of parliament.

Tuesday, February 3.

Where the de-
ponent, in an
affidavit to
hold to bail,
described him-

self as of Dor-
set Place,
Clapham Road,
Middlesex,
and his true
residence was

PLATT,

COLLINS v. GOODGER.

on a former day, had obtained a rule calling on the plaintiff to show cause why the bail bond given by the defendant should not be delivered up to be cancelled, and common bail filed, for an objection to the affidavit to hold to bail. The plaintiff was described in the affidavit to hold to bail as of" Dorset Place, Clapham Road, Middlesex ;" whereas the true description of his residence was "Dorset Dorset Place, Place, Clapham Road, Surrey." He referred to the rule Clapham Road, of Court, Mic. 15. Car. 2. which requires that every affidaSurrey, the Court ordered vit to hold to bail shall state the true place of abode, and the true addition of the person making it.

the bail-bond

to be can

celled, and a

common appearance entered.

Andrews urged for cause against the rule, that, as the defendant had not been at all misled by the mistake, the objection ought not to prevail.

ABBOTT, C. J. The rule of Court expressly requires, that the true place of abode of the deponent shall be set forth in the affidavit; and unless we adhere to a rule so expressed, we should open a door to the greatest laxity and carelessness. The rule must be made absolute.

1824.

COLLINS

v.

GOODGER.

Rule absolute. (a)

(a) Vide Tidd, 194.; 1 Archbold's Pr. 51. citing 1 East, 18; 3 East, 154; 1 M. and S. 103; 11 East, 528; 3 M. and S. 165; 3 B. and P. 550; and 4 Taunt. 154.

Tuesday, February 3.

upon the for

payment of

DoEd. Rev. JAMES HARRIS, Clerk, v. GEORGE MASTERS. EJECTMENT for a certain chapel, called Spring Gar- In ejectment den Chapel, situate in Spring Gardens, in the parish of St. feiture of a Martin in the Fields, in the county of Middlesex. The lease for nonlessor of the plaintiff went for a forfeiture, by reason of a rent, where breach of covenant contained in a lease of the demised the proviso was, that, if mises, for non-payment of rent. Plea, not guilty. At the the rent was trial before Abbott, C. J. at the Middlesex sittings after last in arrear for Trinity Term, a verdict was found for the plaintiff, subject to the opinion of the Court on the following case.-By a certain indenture of lease, bearing date 7th March, 1821,

pre

twenty-one

days, the lessor might re

enter, "although no

formal or legal and made between the lessor of the plaintiff, James Harris, demand shall of the one part, and the defendant George Masters, of the be made for

payment thereof:" held,

that ejectment for non-payment of the rent within the time stipulated might be maintained against the lessee, without demanding the rent, or actually re-entering the premises.

Although this case might not be strictly within the stat. 4 G. 2. c. 28. sec. 204., yet the Court refused to relieve the tenant by staying proceedings, upon bringing the rent and the costs of the ejectment, into Court after trial.

in

arrear,

1824.

DOE

0.

MASTERS.

other part, the lessor of the plaintiff demised unto the said defendant the said chapel, called Spring Garden Chapel, for the term of seven years, [wanting fourteen days,] from the 25th March, then instant, at the yearly rent of 250l. payable half yearly, on the 29th September, and the 25th March, without deduction, except as thereinafter mentioned; the first half-yearly payment to be made on the 29th September, then next ensuing; and the said defendant did, amongst other things, covenant with the said J. H. that he would pay the reserved rent on the days and times appointed by the lease for the payment thereof. In the lease, was the following proviso: "Provided always, and it is hereby declared and agreed by and between the said parties hereto, and these presents are upon this express condition, nevertheless that in case the said rent shall be behind or unpaid for the space of twenty-one days next after the respective days whereon the same respectively are hereinbefore appointed to be paid, as aforesaid, although and notwithstanding no formal or legal demand shall be made for payment thereof; that then, and in such case, it shall and may be lawful for the said James Harris into and upon the said demised premises, or any part thereof, in the name of the whole wholly to re-enter, &c." On the 25th March, 1822, the second half year's rent became due, which not having been paid, or offered to be paid, Mr. Harris brought this ejectment, laying the demise therein on the 26th April last. No demand was made, on the part of Mr. Harris, of the rent, nor was any formal re-entry made for breach of the covenant, and there was sufficient distress on the premises to countervail the arrears of rent. The question for the opinion of the Court is, whether the lessor of the plaintiff is entitled to recover? If he is, the verdict to stand; if not, a nonsuit to be entered. (a)

(a) This case was argued at the Sittings after last Michaelmas Term, but was not reported in its proper place, in consequence of the motion made in the cause in this Term, as after mentioned.

Abraham for the lessor of the plaintiff. The question in this case is, whether there should have been a formal demand of rent, before the defendant can be evicted for a forfeiture. According to the construction of the proviso in the lease, it is quite clear, that no such demand was necessary. At common law, and by the statute 4 Geo. 2. c. 28. a demand of rent would be necessary before the tenant could be ejected; but this case is to be determined by the terms of the special provision in the lease, which is the contract between the parties. It is expressly stipulated, that if the rent shall remain unpaid for the space of twentyone days after the day appointed for payment, the landlord shall be at liberty to re-enter, although no formal demand shall have been made thereof. This was an arrangement made with the mutual consent of the parties, in order to dispense with the formalities required by law. It was perfectly competent for them to enter into such a bargain, and whatever may be the strictness of law in cases where no such agreement is entered into, yet the parties must be bound by their covenant. In Dormer's case (a) it is said, that, "by special consent of the parties, re-entry may be for default of payment of rent, without demand of it." The same principle was recognized by Lord Mansfield and the whole Court in Goodright v. Cator (b), where it is said, that, if by the express terms of the lease a demand is dispensed with, no demand whatever is necessary. By the express terms of the lease here, no demand was necessary; and the plaintiff having broken the covenant by non-payment of rent for the space of twenty-one days after it was due, a forfeiture has been incurred, and the lessor of the.. plaintiff is entitled to judgment.

Curwood, contrà. The proviso in this lease did not dispense with the necessity, first of demanding the rent; and second, of making an actual entry before the defendant. could be ejected. It is true that the terms of the proviso (a) 5 Rep. 40. (b) 2 Doug. 477.

1824.

Doe

0.

MASTERS.