Wadham v Marlow
| Jurisdiction | England & Wales |
| Judgment Date | 20 November 1784 |
| Date | 20 November 1784 |
| Court | Court of the King's Bench |
English Reports Citation: 99 E.R. 764
IN THE COURT OF KING'S BENCH
Followed, Slipper v. Tottenham & Hampstead Railway Company, 1867, L. R. 4 Eq. 114.
wadham v. marlow (a). Saturday, 20th November, 1784. 1. A common assignment by a lessee, without acceptance of rent from the assignee by the lessor, or some other evidence of his assent, is not sufficient (though the lessor have notice) to discharge the lessee from an action of debt. But, 2. An assignment under a commission of bankruptcy being by act of law, and under tha Statutes of Bankruptcy, is a good plea in discharge of the bankrupt lessee in an action of debt for rent (b). [Followed, Slipper v. Tottenham & Hampstead Railway Company, 1867, L. R. 4 Eq. 114.] In debt for rent, the plaintiff declared, that by indenture bearing date the 1st of January, 1777, between the plaintiff of the one part and the defendant of the other, (a) S. C., 1 H. Bl. 438 (n), 2 Chitty's Rep. 600. (i) See 6 Geo. 4, c. 16, s. 75. 4DOUGL. 55. WADHAM V. MAELOW 765 the plaintiff, in consideration of the yearly rent and covenants therein reserved and contained, and on the part of the defendant, his executors, administrators, and assigns, to be paid and performed, demised to the defendant, his executors, administrators, and assigns, certain premises, in the said indenture mentioned, to have and to hold the same unto tie defendant, his executors, administrators, and assigns, from Christmas which was in the year 1775, for the term of seven years, [55] yielding and paying therefore, yearly and every year, during the said term, the yearly rent of £75, at the usual days of quarterly payments; that the defendant, on the said 1st of January, 1777, by virtue of the said indenture, entered upon the demised premises, and continued possessed thereof till the expiration of the term on Christmas day, 1782. The plaintiff then averred, that the rent for one year and a half was in arrear, on Christmas Day, 1782, and still continued due, whereby an action had accrued to him to recover the same of the defendant. The defendant pleaded, 1. Non est factum; 2. As to one quarter's rent due at Michaelmas, 1781, that, after the execution of the lease, and before the commencement of the action, to wit, on the 15th of December, 1781, he became a bankrupt, within the intent and meaning of the several statutes made and in force concerning bankrupts; and that the said quarter's rent became due before the time when he so became a bankrupt, and of this he put himself on the country ; and as to the residue of the sum demanded, that the plaintiff ought not to maintain his action thereof; because he (the defendant) being a subject of this kingdom, on the 26th of July, 1781, and for a long time, to wit, three years and upwards, was a grocer, dealer, and chapman, &c., and that, after the demise by the plaintiff to him, and before the said residue of the sum demanded became due, to wit, on the said 26th of July, 1781, he became a bankrupt. The plea then went on to state in detail all the formal proceedings relative to a commission of bankruptcy sued out against the defendant, bearing date the 17th of December, 1781, and particularly the common assignment by the commissioners.-That, by virtue of the premises, the assignee, before the said residue became due, entered into the said demised premises, and was possessed thereof till the end of the term, of all which the plaintiff had notice. Then the subsequent proceedings, viz. the bankrupt's last examination, and the execution and allowance of his certificate, previous to the commencement of the action, were stated, and the plea concluded with a verification. The plaintiff replied, to that part of the special plea concerning the quarter's rent therein mentioned, and which became due at Michaelmas, 1781, that he would not further prosecute the defendant for the same, and demurred generally [56] as to the other part, respecting the residue of the demand, which became due after the bankruptcy. This case came on for argument, the first time, in last Trinity term, on Tuesday, the 22d of June, when Baldwin was heard for the plaintiff, and the Court gave judgment against him, without hearing S. Heywood, who was to have argued on the other side. Afterwards, on the last day of that term, Baldwin mentioned some cases he had found since the argument, which he said were in favour of the plaintiff; upon which the Court ordered the cause to be restored to the paper, and to stand over for a second argument. On Tuesday, the 16th of November, Bearcroft argued for the plaintiff, and S. Heywood for the defendant. The argument on the part of the plaintiff was to the following effect: On the former occasion, when this demurrer came before the Court, the case of Marsh v. Brace (c) was referred to as an authority against the plaintiff; but the facts of that case went a great deal farther than the present. It is true it was, like this, an action of debt, not of covenant; but it was there expressly shown in the plea, that the plaintiff, after the assignment, had accepted rent from the assignee. When that is done, a privity is established between the assignee and the landlord ; the assignee becomes the landlord's tenant, and the original lessee is discharged. But here it is not alleged in the plea that there has been any acceptance of rent by the plaintiff from the assignee of the defendant. When a lessee assigns his term, the lessor has two strings to his bow : he may either continue to call upon the original lessee in (c) B. R., H. 11 Jac. 1, Cro. Jac. 334. 766 WADHAM V. MARLOW 4DOTOL.B7. respect of the privity of contract, or on the assignee in respect of the privity of estate. But if he calls on the assignee, he relinquishes his right of proceeding against the original lessee. The first material case on this subject is that of Walker v. Harris (d). That was an action of debt brought against an original lessee for rent in arrear after an assignment. The case was solemnly argued, and the Court unanimously held, that the action lay, notwithstanding the assignment, and entered very fully into the reasons of their [57] judgment, distinguishing the different sorts of privity, in the manner just alluded to, and dividing them into three ; viz. 1. Privity in respect of estate only, as, where the lessor grants over the reversion, there is only privity of estate between the grantee and the lessee [1], and when the lessee assigns his lease, there is only privity of estate between the lessor and the assignee : 2. Privity in respect of contract only, " which," says the report, " is personal privity, and extends only to the person of the lessor, and to the person of the lessee, as in the case at Bar, when the lessee assigns over his interest, notwithstanding his assigning, the privity of contract remains between them, although the privity of estate be removed by the Act of the lessee himself (e)." 3. Privity in respect of estate and contract together, which takes place between the original lessor and lessee. The reasons why the privity of contract should continue after the lessee has assigned are also given by the Court in that case, viz. 1. Because the lessee himself shall not prevent, by his own act, such remedy which the lessor hath against him by his own contract; and, 2. Because the lessee might assign the term to a poor man, who should not be able to manure the land, and who might, for need or for malice, suffer the land to lie fresh, and then the lessor would be without remedy, either by distress, or by action of debt, which would be inconvenient, and in effect concern every man (/). The case concludes with the general position before stated, that "if the lessee assigns over his term, the lessor may charge the lessee or his assignee, at his election ;" adding, which is all that was determined in Marsh v. Brace, [58] " that if the lessor accepts the rent of the assignee, he hath determined his election, and shall not have an action against the lessee afterwards, for rent due after the assignment (g)." The next case is that of Devereux v. Barlow (h). That also was an action of debt, but brought by the lessor against the assignee of a lease. The defendant pleaded, that from the time of the assignment, and from time to time hitherto, the plaintiff had not acknowledged, but had totally refused, the defendant as his tenant. To this plea the plaintiff demurred ; and the Court adjudged that the plea was ill; for that the lessor might refuse to accept of the assignee as his tenant at one time, and yet accept of him afterwards at any time he pleased ; and that, for the rent then in arrear, the plaintiff might sue the first lessee or the assignee, at his election. Then came the case of Coghil v. Freelove (z), which was to the following effect: The plaintiff had demised certain premises to one Freelove for twenty-one years : Freelove, pending the term, died intestate, whereupon the defendant, who was his widow, administered; and the action was debt, in the detinet, for rent in arrear. The defendant pleaded that, before the rent in question became due, she had assigned the lease, and all her right, title, and interest thereunto, &c., which she had in the (d) B. R, E. 29 El. 3 Co. 22 a. There is a short note of the same case, Moore, 351. [1] It is said in the case of Thursby v. Plant, that in such case the grantee of a reversion could not, at common law, bring covenant against the lessee, though he might debt, but that the grantee's right to bring covenant is founded on 32 H. 8, c...
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