Hopwood v Whaley
| Jurisdiction | England & Wales |
| Judgment Date | 21 November 1848 |
| Date | 21 November 1848 |
| Court | Court of Common Pleas |
English Reports Citation: 136 E.R. 1440
IN THE COURT OF COMMON PLEAS
S. C. 6 D. & L. 342; 18 L. J. C. P. 43; 12 Jur. 1088. Applied, In re Bowes, 1887, 37 D. 133.
[744] hopwood v. whaley. Nov. 21, 1848. [S. C. 6 D. & L. 342 ; 18 L. J. C. P. 43 ; 12 Jur. 1088. Applied, In re Bowes, 1887, 37 Ch. D. 133.] Executor of lessee for years is, in the absence of other assets, liable, de bonis propriis, for the rent reserved, to the extent to which he might, by the exercise of reasonable diligence, have derived profit from the premises.-In debt, on an indenture of lease, by A., the lessor, against C. as assignee of B., the lessee, demanding 2471. 10s. for rent for 2f years, at the rate of 901. a year, accruing after the assignment, C. pleaded " that he ought not to be charged with the said rent, otherwise than as executor of B.; that C. entered upon the premises as such executor, and that he had not at any time since the death of B. derived any profit or advantage, as such executor, or otherwise, by or from the premises; that the premises had not, since the death of B., yielded any profit whatever; that the premises did not vest in him, C., by assignment, or otherwise than as such executor; and that he has no assets (b) Citing Middleton's case, 5 Co. Eep. 28 b.; S. P. by Walmsley, Serjeant, argu- endo (with reference to the relation of a statute), in Luke v. Grevell, F. Moore, 119; S. P. Barefoot v. Barefoot, Palmer, 411; S. P. by Holt, C. J., in Whitehall v. Squire, ubi supra. And see 2 Co. Eep. 39 a. (c) I.e. the assignment, originally void, because made by a person having no repre sentative character legally ascertained, becomes good ab initio as soon as the repre sentative character, created by the will, is legally evidenced by probate. (d) Citing 3 Prest. on Abst. 146 ; Bacon v. Simpson, 3 M. & W. 87, per Parke, B. (e) Citing The Kingv. The Inhabitants of Great Glenn, 5 B. & Ad. 188, 2 N..& M. 94. 6 C. B.745. HOPWOOD V. WHALEY 1441 in his hands to be administered." Eeplication, " that C. did, after his entry upon the premises, derive great profit and advantage by and from the premises, which have yielded to him profit to the amount of the said rent sought to be recovered :"- Held, that, after verdict, the statement in the plea must be taken as amounting to an allegation that C. could not have derived any profit from the premises.--The jury having found that the premises could have been let for 601. a year, a verdict was entered for the plaintiff for 2471. 10s., with leave to the defendant to move to reduce it to 1651. :-Held, that the plaintiff was entitled to the latter sum only. This was an action of debt. -The first count of the declaration stated, that, by an indenture of lease made between the plaintiff of the one part, and one William Whaley of the other part, a certain messuage, with the appurtenances, was demised by the plaintiff to the said William Whaley,-habendum to Whaley, his executors, administrators, and assigns, for twenty-one years from Christmas, 1834, at a rent of 901. a year, payable quarterly that the said William Whaley thereupon entered and became possessed; that, on the 8th of April, 1843, all the estate and interest of the said William Whaley came to the defendant by assignment; that the defendant entered and became possessed; and that, after the assignment, and during the term, and whilst the defendant was possessed, to wit, on the 26th of March, 1846, the sum of 2701. for rent for three years, from the 25th of March, 1843, became due and [745] still was in arrear, contrary to the form and effect of the indenture. The declaration contained also a count demanding the same sum upon an account stated. Plea, to the account stated, never indebted; upon which issue was joined. To the first count, the defendant pleaded, that he, the defendant, ought not to be charged with the rent so due and owing as in the said first count mentioned, or any part thereof, otherwise than as the executor of the last will and testament of the said William Whaley, because .he said that the said William Whaley, in his life-time, to wit, on the 26th of March, 1843, duly made and published his last will in writing, and thereby constituted and appointed the defendant executor thereof, and afterwards, and after the making of the indenture in the declaration mentioned, and during the term thereby granted, to wit, on the 27th of March, 1843, the said William Whaley died possessed of the said messuage, with the appurtenances, and without revoking or altering his said will; that, after his death, to wit, on the 20th of June, 1843, the defendant duly proved the said will, and took upon himself the burthen of the execution thereof; that thereupon, afterwards, to wit, on the day and year last aforesaid, he, the defendant, as such executor as aforesaid, entered into and upon the said messuage, with the appurtenances, and became and was possessed thereof for the residue of the term by the said indenture granted, and then yet to come and unexpired of and in the said messuage, with the appurtenances; that he, the defendant, had not, at any time since the death of the said William Whaley, had, received, or derived any profit, interest, or advantage, as such executor, or otherwise, by or from the said demised premises, or any part thereof, and that the said demised premises, or any part thereof, had not, since the death of the said William Whaley, yielded any profit whatever; [746] that the estate and title, right, and term of years of the said William Whaley of and in the said demised premises, or any part thereof, did not at any time come to or vest in the defendant by assignment, otherwise than as such executor as aforesaid, and that the said entry of the defendant in the declaration mentioned, was made by him as such executor as aforesaid; and that the defendant has not, nor, at the time of the commencement of this suit, or at any other time...
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