Swatman v Ambier
| Jurisdiction | England & Wales |
| Judgment Date | 26 June 1852 |
| Date | 26 June 1852 |
| Court | Exchequer |
English Reports Citation: 155 E.R. 1264
COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S C 22 L J Ex 81 Distinguished, Morgan v. Pike, 1854, 14 C B 473, Babington v O'Connor, 1887, 20 L r Ir 246
[72] swatman v amiueh June 26, 1852-Debt upon an indenture, dated the 27th of December, 1849, alleged to have been made between five Commissioners of an inland navigation, under the authority of several Acts of Paiharnent, on the one part, and the defendant on the other part, whereby tbe Commissioners, as was alleged in the declaiatiori, in consideration of the rent theiein mentioned, demised the tolls of the said navigation to the defendant for one year, from the 1st of January, 1850, at the rerrt of 34701, payable monthly, together with certain other payments, and the defendant covenanted with the Commissioners, parties to the said indenture, and also with the whole body of the Commissioners of the navigation, as a separate covenant, for the due payment of the rent The declaration then averred an entry by virtue of the demise, and the occupying and receiving the tolls during the entire year Breach, the non payment of the rent Plea, that the Commissioners, the lessors named in the indenture, never executed the lease, and that the entry and occupation was at the will of the Commissioners only, and not under the demise Replication, that the defendants had enteied and had received and enjoyed the tolls, &c, by the permission of the Com-tnissioners, under the terms of the rndentuie -Held, that, as the lessois had 8 EX 73 SWATMAN 7' AMBLER 1265 not executed the le ise, the lessee had tievet received the consideration for which lie had stipulated, namely, a petnianent estate duung the demise, and under its teims, and theiefoie, that he was not liable to be sued upon his covenant in that instrument [S C 22 L J Ex 81 Distinguished, Motgan v Pike, 1854, HOB 473 , BahngtoHv O'Cmmor, 1887, 20 L R Ii 246] Debt by the plaintiff, as clerk to the Commissioners of the Eaw Brink Navigation, foi carrying into execution, and acting under, the 45 Geo \ c Ixxu The hist count of the declaiation stated, that, on the 27th of December, A D , 1849, by a oettam indenture then marie between the said Commissioners, to wit, being hve of certain Comrmssioneis of Navigation acting in execution of seveial Acts of Paihament, viz. 35 Geo o, c Ixxvn , arid of the several Acts subsequently passed for amending &c the original Act, which said several Acts aie generally called the Eaw Brink Acts, of the one part, and the defendant of the othei pait, (piofert), aftet lecitmg, as the fact was and is, that by an Act &c (according to the powers given to the Commissioneis by the 1 & 2 Will 4, c Ixxm s iG , see note, post, p 76), and further reciting, that the said Commissioners, at their respective general meeting held in the then present year, pursuant to dnections of the said Acts, passed oideis directing that the said tolls should be let by auction under the said powers, and that the propei notices of the intention of letting the &aid tolls had been duly given, &c , and that at a meeting of the sard Commissioners, held at A,c, on the 4th of December, the said tolls were, in pursuance of the same notices, offered to be let by public auction foi the teim of one yeai from the 1st of January then next, subject to certain conditions then and there produced, and that the defendant was then declared to be the highest bidder foi the same, at the rent of J4701 It was by the said indenture witnessed, that, in [73] consideiation of the piemises, and pursuant to and in exercise of the power 01 authotity to the said Commissioners for that purpose given by the said lecited Act, and every othei power and authorrty whatevei in anywise enabling them in this behalf, and also in consideration of the rent theiemaftei reserved, and of the several covenants and agreements thereinafter contained, on the pait of the defendant to be paid, observed, and performed, they, the saicl Commissioners, parties to the said indenture, did demise, lease, and to faim lot to the defendant all and singular the tolls to become payable by virtue of or...
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