Waddilove v Barnett
| Jurisdiction | England & Wales |
| Judgment Date | 29 January 1836 |
| Date | 29 January 1836 |
| Court | Court of Common Pleas |
English Reports Citation: 132 E.R. 210
IN THE COURT OF COMMON PLEAS
S. C. 2 Scott, 763; 1 Hodges, 395; 5 L. J. C. P. 145. See Evans v. Elliot, 1838, 9 Ad. & E. 353. Disapproved, Wilton v. Dunn, 1851, 17 Q. B. 301.
waddilove v. babnett. Jan. 29, 1836. [S. C. 2 Scott, 763; 1 Hodges, 395; 5 L. J. C. P. 145. See Evans v. Elliot, 1838, 9 Ad. & E. 353. Disapproved, Wilton v. Dimn, 1851, 17 Q. B. 301.] In assumpsit for use and occupation, held, that under the issue of non assumpsit, the Defendant might give in evidence that the Plaintiff had mortgaged the premises before the Defendant came into occupation, and that the mortgagee had given notice to the Defendant not to pay to the Plaintiff any rent becoming due after such notice.-Obedience to the mortgagee's notice as to rent due before the notice, must be specially pleaded. This was an action of assumpsit for use and occupation, to which the Defendant pleaded non assumpsit; and the only question on the trial was, whether, consistently with the new rules in pleading made in Hilary term 4 W. 4, the defence intended to be set up at the trial could be given in evidence under that plea. It appeared upon the Plaintiff's evidence, that the Defendant had been let into possession of the premises in question under a written agreement made between the Plaintiff and the Defendant on the 19th of December 1826, by which it was stipulated that the occupation should commence from that day, but that the rent should become payable from Midsummer 1828; and the action was brought for arrears of rent which accrued under that agreement. In answer to the action, the Defendant tendered evidence, that before the agreement was made the Plaintiff had mortgaged the premises, and that after the agreement the mortgagee had given notice to the Defendant to pay all arrears of rent then due, and all future rent that should become due, to him the mortgagee, and not to the mortgagor. This evidence was rejected by the learned Judge at the trial of the cause as inadmissible under the proper construction of the new rules, and the Plaintiff recovered a verdict for 811. [539] Bompas Serjt. having obtained a rule nisi for a new trial, Busby shewed cause. A written agreement by the Defendant to occupy the premises under the Plaintiff having been proved, and an acknowledgment that the Defendant so held them having been shewn by the fact that he submitted to a distress on the part of the Plaintiff, and gave a bill of exchange for the amount claimed, the Defendant could not, under the issue of non assumpsit, be...
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