Slack against Sharpe
| Jurisdiction | England & Wales |
| Judgment Date | 29 May 1838 |
| Date | 29 May 1838 |
| Court | Court of the Queen's Bench |
English Reports Citation: 112 E.R. 876
IN THE COURT OF QUEEN'S BENCH
S. C. 3 N. & P. 390; 1 W. W. & H. 496; 7 L. J. Q. B. 225; 2 Jur. 839.
slack against sharpe. Tuesday, May 29th, 1838. A lessee, under an unwritten contract reserving rent on 6th April and 6th October, became bankrupt, and a fiat issued in March, the rent due in the previous October having been paid. Upon the assignees refusing to accept the premises, the bankrupt offered, within fourteen days after his receiving notice of such refusal, and one day before 6th April, to deliver up possession to the lessor. Held that, under stat. 6 G. 4, c. 16, s. 75, he was not liable in assumpsit for use and occupation to pay any thing in (a) Eeg. Gen. Hi!., 1834, General Eules, &c., 5. SAD. teS.ni. SLACK V. SHARPK 877 respect ol the time subsequent to 6th October. Where the bankrupt holds by an unwritten lease, offering possession is a delivery within sect. 75. [S. C. 3 N. & P. 390; 1 W. W. & H. 496; 7 L. J. Q. B. 225; 2 Jur. 839.] The following case was stated for the opinion of this Court, according to sfcat. 3 & 4 W. 4, c. 42, s. 25. The defendant was tenant to the plaintiff of certain premises, from 1st January 1833 until the time of the bankruptcy and fiat hereinafter mentioned. The tenancy was from year to year, at the rent of 501., payable on 6th April and 6th October in every year. On 25th March, 1834, the defendant committed an act of bankruptcy ; and, on 31st March 1834, a fiat in bankruptcy issued [367] against him. The defendant requested the assignees to accept the premises, which they declined: whereupon the defendant, conformably to stat. 6 G. 4, c. 16, s. 75, offered to deliver up possession of the premises to the plaintiff, on 5th April 1834; and the plaintiff accepted the possession on 7th April 1834. The plaintiff claimed compensation for the defendant's enjoyment of the premises from 6th October 1833 until the issuing of the fiat on 31st March 1834. Each party was to be at liberty to avail himself, in support of his case, of sect. 75 of the Bankrupt Act, according as the Court should consider that it went to maintain or defeat the demand, without reference to the pleadings (a). If the Court should be of opinion that the plaintiff was entitled to a verdict, the rent was to be considered the measure of damages in proportion to the time of occupation. Wightman for the plaintiff. First, independently of stat. 6 G. 4, c. 16, s. 75, the bankrupt is liable for the rent which accrued before the fiat. In Auriol v. Mills (b)1 [368] it was held that a bankrupt was not discharged from payment of rent under a covenant, the rent accruing after the bankruptcy. In Boot v. Wilson (8 East, 311), the same point was decided in assumpsit for use and occupation, the bankruptcy having occurred before the day on which the rent claimed became due. There Lord Ellenborough remarked that Wadham v. Marlowe (b)2 "only decided that the action of debt on the reddendum would not lie against the lessee, for rent accruing after his bankruptcy, when he had ceased to occupy the premises, and the assignee was in possession under the commissioners' assignment." In Boot v. Wilson (8 East, 311), the facts were specially pleaded, and there was a special demurrer: atid Lord Ellen-borough remarked (page 313), "That the plea either denied the occupation of the defendants as tenants, and then it was bad on the demurrer, as amounting only to the general issue; or it did not; and then...
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