Doe d. Bennett v Turner
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1840 |
| Date | 01 January 1840 |
| Court | Exchequer |
English Reports Citation: 151 E.R. 749
EXCH. OF PLEAS.
S. C. 10 L. J. Ex. 213; affirmed, 9 M. & W. 643. Distinguished, Lynes v. Snaith, [1899] 1 Q. B. 489. Referred to, Jarman v. Hale, [1899] 1 Q. B. 996.
doe 0. bennett v. turner. Exch. of Pleas. 1840.- Where A., in 1817, let B. into possession of lands as tenant at will; and in 1827, A. entered upon the land without B.'s consent, and cut and carried away stone therefrom:-Held, that this entry amounted to a determination of the estate at will; and that B. thenceforth became tenant at sufferance, until, by agreement express or implied, a naw tenancy was created between the parties : and therefore, that unless the fact of such new tenancy were found by the jury, an ejectment brought by A. in 1839 was too late, inasmuch as, by the stat. 3 & 4 Will. 4, c. 27, s. 7, his right of action first accrued at the expiration of one year after the commencement of the original tenancy at will, i.e. in the year 1818. [8. C. 10 L. J. Ex. 213 -. affirmed, 9 M. Se W. 643. Distinguished, Ly-iies v. Smith, [1899J 1 Q. B. 489. Referred to, Jannan v. Hale, [1899] 1 Q. B. 996.] At the trial of this ejectment, at the last assizes for the county of Gloucester, before Parke, B., it appeared that [227] the lessor of the plaintiff, who was admitted to have been in the year 1817 the owner of the lands in question, in that year let the doiendant into possession of them as tenant at will. In the year 1827, the defendant being still in possession, the lessor of the plaintiff' entered upon the land, and took and carried away a quantity of stone from a quarry on the estate, The defendant, however, continued in possession as before, until the year 1839, when the lessor of the plaintiff, after the expiration of six months' notice to quit, brought this ejectment ta recover possession of the property. It was contended for the defendant, that the action was brought too late, the right of the lessor of the plaintiff having been, under the provisions of the stat. 3 & 4 Will. 4, c. 27, ss. 2 & 7, barred at the expiration of tweuty-une years from the commencement of the original tenancy in 1817. The learned Judge, however, thought that the original tenancy at will was determined by the entry in 1827, if it was without the tenant's consent; that a new tenancy at will was then created, and that, consequently, the ejectment was well brought within twenty-one years from that period. It was then objected that the plaintiff was precluded, by his having given a notice to quit, from treating it as other than a, tenancy from year to year. The learned Judge thought that the lessor of the plaintiff was not concluded thereby, and left it to the jury to say, first, whether the defendant was tenant at will, or from year to year; and next, whether the act done by the plaintiff in 1827 wag or was not done with the consent of the defendant. The jury found that the defendant was tenant at will, and that the entry in 1827 was without his consent, and the verdict was thereupon entered for the plaintiff. At the commencement of this term, Kelly obtained a rule nisi for a new trial, on the ground of misdirection ; against which, on a subsequent day, [228] The Attorney-General, Ludlow, Serjt., W. J. Alexander, and Talbot, shewed cause. The question is, whether, under the circumstances of this case, the lessor of 750 DOE V. TURNER 7M.&W.229. the plaintiff is barred by lapse of time from recovering in this ejectment. It is admitted that the original possession of the defendant, from 1817 to 1827, was as tenant at will. Nor can it be disputed that that tenancy at will was determined by the entry of the lessor of the plaintiff, and the taking and carrying away of the stone, in 1827. It is clearly laid down in Co. Litt. 55 b. that "if the lessor, without the consent of the lessee, enter into...
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