Cannan and Grimley, Assignees of Tanner a Bankrupt v Hartley
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1850 |
| Date | 01 January 1850 |
| Court | Court of Common Pleas |
English Reports Citation: 137 E.R. 1040
IN THE COURT OF COMMON PLEAS
S. C. 19 L. J. C. P. 323; 14 Jur. 577.
1040 C ANN AN V. HARTLEY 9C.B.635. cannan and grimley, Assignees of Tanner a Bankrupt v. hartley. 1850. [S. C. 19 L. J. C. P. 323; 14 Jur. 577.] : A. is tenant to B. of rooms, for a term of years. Upon the bankruptcy of B., A. sends the key of the rooms to the official assignee, where it is left .with a clerk, who is told that it is the key of the rooms which A. had occupied. A. immediately quits possession, and no further communication takes place. Held, not to amount to a surrender by act or operation of law (a)1. Assumpsit for six quarters' rent, accruing due to the plaintiffs, as assignees, on the 29th of September, 1849, on a demise of rooms, apartments, fixtures, chattels, and effects, by the bankrupt, for three years from 25th of March, 1847, with a count on an account stated with the plaintiffs as assignees. [635] Plea, first, non assumpsit; secondly, to the first count, that after the plaintiffs became assignees, and before any part of the money in the first count became due, to wit, on, &c., the defendant surrendered and yielded up to the plaintiffs as assignees the said rooms, apartments, fixtures, chattels, and effects, and the plaintiffs as assignees then accepted (a)2 of such surrender, and took possession of such rooms, &c., and from thence hitherto have had possession thereof; thirdly, to the first count, that after the making of the promise, and before any part of the moneys therein mentioned became due, to wit, on, &c. the defendant was evicted from the rooms, &c., by Erasimus (sic) Wilson, of whom Tanner before he became bankrupt, and the plaintiffs as assignees since his bankruptcy, held the rooms, &c. as tenants thereof, and the [636] defendant hath from thence hitherto continued so evicted; and that the said Erasimus Wilson, (a)1 A surrender by act and operation of law takes place when the tenant of a particular estate becomes party to an act having some other object than that of a surrender, but which object cannot be effected whilst the particular, estate continues. See the cases collected, Com. Dig. tit. Surrender, I.; 20 Vin. Abr. tit. Surrender, F. G-. In these cases the presumed surrender is also presumed to have preceded the act to which the tenant is party. In some recent cases, the courts, more and more unwilling to frustrate the intentions of the parties by a strict adherence to the Statute of Frauds, have gone beyond this, and have held that an act, the direct and the only operation of which is, to extinguish the particular estate, an act done ipsissimo animo sursumreddendi, and differing in nothing from an express verbal surrender except by its informality, may be treated as creating a surrender by act and operation of law-a construction tending to make the exception nearly co-extensive with the enactment, and recalling the times when-as was the fate of the statute De Donis-an act of parliament might be repealed by judicial astuteness. An unqualified statement of this principle occurs in Lynch y. Lynch (6 Irish Law Eep. 131), where Brady, C. B., says, "A surrender by act and operation of law, I think, may properly be stated to be :a surrender effected by the construction put by the courts on the acts of the parties, in order to give to those acts, the effect substantially intended by them." (a)2 This allegation appears to be unnecessary, since without any assent, either expressed or implied, on the part of the surrenderee, the estate vests in him by the mere act of the surrenderor, until actual dissent. See Thompson,v. Leach, 2 Salk. 618, and the note (b) in the sixth edition. Thompson v. Leach is also reported 3 Lev. 284, Lord Holt, 665, Carthew, 211, 250, 2 Mod. 290, 1 Shower,, 296, Freeman, 502, 2 Ventr. 198. In that case it had been at first held in C. P., contrary to the opinion of Ventris, J., that assent on the part of the surrenderee, was necessary for the purpose of vesting the interest in him. And in Townson v. Tickell, 3 B. & Aid. 31, the Court of King's Bench, not being aware that the judgment in Thompson v. Leach had been reversed, acted upon the authority of the original overruled decision. Vide 4 Mann. & B. 189, n. See also Co. Litt. 113 a., ibid. 114 b., ibid. 245 a. b., ibid., 337, n. 294, 2 New Cases, 70, 2 Scott, 128, 2 Swanst. 365, 371, 6 B. & C. 112, 9 D. & E. 136, 2 N. & M. 806, 3 N. & M. 775, n., 5 N. & M. 6, 2 M. & G. 690, 691, 6 M. & G.-456, n.,-1 Mylne & K. 195, Freeman by Smirke, 503, n. 9C.B.837. 0ANNAN V. HARTLEY 1041 at the time lie so evicted, had lawful title (a) to evict the defendant and the plaintiffs as assignees aforesaid. Verification. Eeplication to both the special pleas, de injuria. At the trial before Maule, J. at the London Sittings in last term, the plaintiffs proved a demise by Tanner before his bankruptcy, to the defendant, for three years, from the 25th of March, 1847, at 521. 10s. per annum, payable quarterly. Tanner became bankrupt on the 10th of March, 1848. The rent was paid by the defendant to the assignees up to the 25th of March, 1848. 'ò_:, In May, 1848, the defendant sent the key of the rooms to the office of the plaintiff Cannan, the official assignee; and it was delivered to a clerk there as the key of the demised premises, and was never returned. On the same day the defendant quitted the premises, placing a tin-plate on the door giving information of his removal to another locality. No communication took place between the plaintiffs and the defendant until a little before Christmas 1849, when payment was demanded of the six quarters' rent now sued for. In support of the third plea, certain proceedings taken by William James Erasmus Wilson (J), on the 4th of October, 1848 against Tanner, to obtain possession of the premises so deserted by Tanner, there being no sufficient distress on the premises, were produced; and it was shewn that at Christmas 1848 one Elam entered under Wilson and paid rent to him. It was conceded, that upon the first issue the verdict [637] must be for the plain tiff. Upon the second issue it was contended, on the part of the defendant, that there had been a surrender -by operation of law; and upon the third issue, that he was discharged by an eviction by Wilson, the landlord paramount. The learned judge directed a verdict for the plaintiffs upon all the issues, reserving leave to the defendant to move to enter a nonsuit; but it was ultimately agreed that in case the court should be of opinion, that there was any evidence of an eviction or of a surrender proper to go to the jury, a verdict should be entered for the defendant. May 4.-In the same term Edwin James moved for leave to enter a verdict for the defendant upon the two special pleas accordingly. Upon the first point he cited Dodd and...
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