Doe dem. Benjamin Hornby against Glenn
| Jurisdiction | England & Wales |
| Judgment Date | 19 April 1834 |
| Date | 19 April 1834 |
| Court | Court of the King's Bench |
English Reports Citation: 110 E.R. 1126
IN THE COURT OF KING'S BENCH
S. C. 3 N. & M. 837; 3 L. J. K. B. 161.
doe dem. benjamin hornby against glenn. Saturday, April 19th, 1834. Lessee of premises, under a covenant of re-entry if the rent should be in arrear twenty-eight days, died in bad circumstances, and his brother became executor de son tort. B., his brother, agreed with the landlord to give him possession, and suffer the lease to be cancelled, on his abandoning the rent, which was twenty-eight days in arrear. B. afterwards took out letters of administration : Held, that the agreement of B., as executor de son tort, did not conclude him as rightful administrator, nor give a right of possession to the landlord who had entered under the agreement, but who had not made any formal claim in respect of the forfeiture, nor taken a regular surrender of the lease. [S. C. 3 N. & M. 837; 3 L. J. K. B. 161.] Ejectment for a messuage, &c. At the trial before Taunton J., at the York Lent Assizes 1834, it appeared that the premises were demised by the defendant to Preston Hornby, his executors, administrators, &e., for fourteen years from the 6th of April 1829. The lease contained a proviso for re-entry in case the rent should be behind and" unpaid twenty-eight days after any of the specified times of payment; and that, in that case, the lease, and every thing therein contained, should cease, determine, and be utterly void. Preston Hornby died on the 5th of November 1833 ; and, on the 25th of the same month, his brother Benjamin Hornby, the lessor of the plaintiff, took out administration of his effects, on the renunciation of the widow and of other parties entitled. The intestate died in bad [50] circumstances. On the 19th of November the defendant went to the house to ask for half a year's rent, which had been due more than twenty-eight days. He there found the lessor of the plaintiff, who was about to remove the effects of the deceased: and a verbal agreement was made between them, in the presence of the widow, that the defendant should abandon the rent, and should thereupon have possession of the premises, and the lease be cancelled. Upon this agreement the defendant obtained possession; but, on the 25th of November, the lessor of the plaintiff, having then taken out administration, tendered the rent, and demanded to have the premises given up to him. The lease had not been cancelled or surrendered otherwise than as above...
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