Salmon v Smith
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 205
COURT OF KING'S BENCH
[202] de term. sancti hil. anno regni regis car. II. 20 & 21. 29. salmon versus smith. Mich. 20 Car. II. Reg. Rol. 458. London, to wit.-Be it remembered, that heretofore, to wit, in Easter term last past, before our lord the King at Westminster, came John Salmon by Hugh Ganilin his attorney, and brought here into the Court of our said lord the King then there, his certain bill against Samuel Smith gentleman, one of the clerks of Sir Robert Henley Knight, chief clerk of our lord the Kitig, assigned to inrol pleas in the Court of our said lord the King before the King himself, according to the liberties and privileges of the said Court for such chief clerk and his clerks, from time whereof the memory of man is not to the contrary used and approved of in the same, present here in Court in his proper person, of a plea of debt, and there are pledges of prosecution, to wit John Doe and Richard Roe; which said bill follows in these words, to wit; London to wit, John Salmon complains of Samuel Smith gentleman, one of the clerks of Sir Robert Henley Knight, chief clerk of our lord the King, assigned to inrol pleas in the Court of our said lord the King, before the King himself, according to the liberties and privilegea of the said Court for such chief clerk and his clerks, from time whereof the memory of man is not to the contrary used and approved of in the same, present here in Court in his proper person, of a plea that he render to him nine pounds of lawful money of England, which he owes to and unjustly detains from him, for this, to wit, that whereas the said John, on [203] the 1st day of January, in the year of our Lord 1663, at London aforesaid, to wit, in the parish of St. Sepulchre, in the ward of Farringdon Without, demised, granted, and to farm let to the said Samuel three rooms and one cellar, being parcel of the then mansion-house of the said John, situate, lying, and being in the parish aforesaid, to have and to occupy to the said Samuel and his assigns, from the Feast of the Birth of our Lord then last past, unto the end and term of one whole year thence next ensuing, and fully to be complete and ended, and so from year to year for so long as both parties should please; yielding and paying therefore yearly to the said John and his assigns nine pounds on the four most usual feasts or terms of the year, that is to say, the Annunciation of the Blessed Virgin, St. John Baptist, St. Michael the Archangel, and the Nativity of our Lord, by equal and even portions. By virtue of which said demise, he the said Samuel entered (1) into the said rooms and cellar with the appurtenances, and had and (1) The time of entry is often inserted, as "that the defendant afterwards, to wit, on the day of in the year entered," and particularly where the term is to commence on a day subsequent to making the lease. But it is unnecessary; for irirtute cujus intravit generally, has been held sufficient without shewing the time; for it will be intended that the lessee entered according to the demise; Cro. Jac. 549, Mawle v. Cacyjjyr. Lat. 196, Gh'een v. Moody; and so are a great many entries. Clift. 231, pi. 5, 232, pi. 6, 235, pi. 8. Lib. Plac. 114, pi. 11, 117, pi. 23, 118, pi. 27. Or, if he entered before his title began, it is not material. Cro. Eliz. 169, Alexander v. 206 SALMON V. SMITH 1 WM8. SAUND. 203. occupied the same from the Feast of Christmas, in the year of our Lord aforesaid, for two whole years and three quarters of a year then next following; and that the said nine pounds of the rent aforesaid, for one whole year, ended on the Feast of St. Michael the Archangel, in the year of our Lord 1666, were in arrear to fcha said John, and still are unpaid; whereby an action hath accrued to the said John, to demand and have of the said Samuel the said nine pounds, yet the said Samuel, (although often required) has not yet paid to the said John the said nine pounds, but the same to pay to him has hitherto altogether refused, and still refuses, to the damage of him the said John of 51. : and therefore he brings suit, &c. And now at this day to wit, on Friday next after three weeks of St. Michael in this same term, until which day he the said Samuel Smith had leave to imparl to the said bill, and then to answer, before our lord the King at Westminster, comes as well the aaid John Salmon, by his said attorney, as the said Samuel Smith, in hia proper person : and the said Samuel Smith defends the wrong and injury when, &c, and as to 41. arid 10s. parcel of the said nine pounds of the rent aforesaid, for the half of one year, ended on the Feast of the Annunciation of the Blessed Virgin Mary, in the said Dyer. For the entry is not traversable. Dougl. 461, 3d edit., Walker v. Eeeves, in the notes. Arid in the ease of a lease for years like the present (this being a lease for two years certain), 1 Salk. 209, Heliosis v. Bwrbrick, S. C. 1 Ld. Eaym. 170. 2 Salk. 414, Legg v. Strudwick. 1 T. R. 380, Birch v. Wright,(a} it is not necessary to set forth any entry or occupation at all by the lessee; for though he neither enters nor occupies, he must pay the rent, it being clue by the lease or contract, and not by the occupation. 1 Salk. 209, Belltixis v. Burbrick, recognised as to this point in Doug. 455, Eaton v. Jacques. Ibid. 461, note 1, Walker v. Reeves.(b) But in debt for rent upon a lease at will, the plaintiff must shew an occupation ; for the rent is only due in respect thereof. 1 Salk. 209.(e) (a) [9 A. & E. 658, Doe v. Green. 1 Perr. & D. 454, S. C. 1 Q. B. 247, Rj. v. Chawton (Inhab. of). 4 Perr. & D. 525, S. C.] See also 4 East, 29, Denn v. Cart- wright, where the words of the demise were " not for one year only, but from year to year;" and were held to enure for two years at the least. And he cannot be ejected after notice to quit at the end of the first year. See also 1 T. R. 180, Birch v. Wright, per Buller J.S.P. But see 2 Camp. 573, Thompson v. Maberky, where the words were " for twelve months certain, and six months' notice afterwards: " in which case Lord Ellenborough C.J. held, that a notice to quit at the end of the first year was good, laying considerable stress upon the word certain, the application of which to the first twelve months shewed that every thing afterwards was uncertain, and depended on the notice. [The word "afterwards" here seems to mean, that if the tenant chose to bold on after the time named as certain, the first twelve months, then six months' notice should be necessary. 9 A. & E. 661. 1 Perr. & D. 456. See also 1 Q. B. 806, Doe v. Dobell 1 G. & Dav. 218, S. C.] (b) See 1 Brod. & Bing. 238, Williams v. Bosanquet awl Others, in which all the cases, respecting the necessity of entry on the part of an assignee of a lessee in order to make him chargeable for the rent, are collected. The Court held, that the assignee is chargeable without entry. And the case is particularly strong, being one of an assignment by way of mortgage. Dallas C.J. in delivering the judgment of the Court noticed, that it was the opinion of a great majority of all the Judges that Eaton v. Jacques had not been rightly decided. (fl) In debt for use and occupation, the plaintiff need not state any of the particulars of the demise. 6 T. R. 62, Wilkins v. Wingate. 6 East, 348, King v. Fmser. 5 Taunt. 25, Egler v. Marsden. 3 M. &. S. 380, Davies v. Edwards; where no place was alleged in the declaration, and the particulars of demand described the premises as situate in a wrong place; yet, as the defendant held only one parcel of land under the plaintiff, he could not be misled, and the mistake was held immaterial. But if the particulars of the demise be stated, they must be proved, as stated. 2 Dougl. 665, Bristow v. Wright. [Debt for use and occupation lies at common law, and is not defeated by proof of a demise (not under seal) reserving a certain rent. 1 Q. B. 850, Gibson v. Kirk. 1 G. & Dav. 252, S. C.] 1 WMS. SAUNB. 204. HIL. 20 AND 21 CAR. II. REGIS 207 year of our Lord 1666, he the said Samuel says, that he does not owe to the said John Salmon the said 41. and 10s. or any penny thereof, in manner and form as the said John Salman has above complained against him, and of this he puts himself upon the country; and the said John thereof likewise, &c. And as to 41. and 10s. re-[204]-sidue of the said nine pounds of the rent aforesaid, for the half of one year ended on the Feast of St. Michael the Archangel, in the said year of our Lord 1666, he the said Samuel says, that the said John Salmon ought not to have or maintain his said action thereof against him, because he says, that the said John, on the said 1st day of January, in the said year of our Lord 1663, at London aforesaid, in the parish and ward aforesaid, did demise, grant, and to farm let to the said Samuel, not only the said three rooms and one cellar, but also another room called a dining-room, being other parcel of the said mansion-house of him the said John Salmon; to have and to hold the said first-mentioned three rooms and the said cellar to the said Samuel and his assigns, from the said Feast of the Nativity of our Lord then last past, unto the end and term of one whole year then next ensuing, and fully to be complete and ended, and so from year to year for so long as both the said parties should please, as the said John Salmon has above alleged ; and to have and to occupy the other room called the dining-room, to the said Samuel, from the said Feast of the Nativity of our Lord then last past, unto the end and term of one whole year thence next ensuing, and fully to be complete and ended, and so from year to year, for so long as both the said parties should please, (such time as one Kichard Whitmore Esquire should be resident within the City of London, only excepted ;) yielding and paying therefore yearly to the said John and his assigns, the said yearly rent of nine pounds on the said...
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