Ward against Day and Another
| Jurisdiction | England & Wales |
| Judgment Date | 10 May 1864 |
| Date | 10 May 1864 |
| Court | Court of the Queen's Bench |
English Reports Citation: 122 E.R. 486
IN THE COURT OF QUEEN'S BENCH AND THE EXCHEQUER CHAMBER
Affirmed in Exchequer Chamber, 5 B. & S. 359; 33 L. J. Q. B. 254; 10 L. T. 578; 12 W. R. 829.
ward against day and another. Wednesday, June 24th, 1863.-Licence. Forfeiture. Waiver. Election. Distress. Tender.-By deed made the 4th September, 1843, B. granted to A. licence to get all the copperas stone which might be found in a certain part of the manor of M. for twenty-one years, at the yearly rent of 251. payable half yearly on the 24th June and 25th December, with a proviso that if any part of the rent should be in arrear for twenty-one days, it should be lawful for B., his heirs and assigns, by notice in writing delivered to A., his executors, administrators or assigns, to determine the grant, On the Slat January, 1856, J. H., who had become assignee of the licence, assigned the licence to the defendants by way of mortgage, and on the 5th August, 1857, it was absolutely assigned to the defendants by arrangement under The Bankrupt Law Consolidation Act, 12 & 13 Viet. 106, who by oral agreement granted to J. H, the enjoyment of all the rights under it on his paying the rent thereby reserved. On the 27th March, 1858, the plaintiff who had purchased the manor in August, 1854, distrained goods of J. H. and E. H. his son, lying on the part of the manor mentioned in the licence, for arrears of rent due at Christmas, 1857. J. H. and E. H. thereupon brought actions against the plaintiff for the illegal distress, in which he suffered judgment by default; and in 1858, negotiations for a settlement of the actions and for granting a new licence to E. H. for a further term of twenty-one years, commencing on the 24th June, 1864, the dqy on which the grant of the 4th September, 1843, would expire, were carried on between the attorneys of J. H. and of the plaintiff, and it was verbally arranged between the plaintiffs attorney and the attorney for J. H. and E. H. that the actions should be settled on certain terms, one of which was, that such a licence [338] should be granted to E. H. These terms the plaintiff refused to carry out. On the 3d July, 1858, the plaintiff gave a written notice to the defendants and J. H., pursuant to the proviso, to determine the licence. On the llth January, 1859, the defendants tendered to the plaintiff 501. for two years rent due at Christmas, 1858, which the plaintiff refused to accept. In trespass for breaking and entering the plaintiff's close and taking away copperas stone, the Court having power on a special case to draw inferences of fact:-1. Held, that the plaintiff, after the cause of forfeiture had occurred, sufficiently expressed and communicated to the defendants his determination to treat the licence as existing, and was bound by that election, and therefore the subsequent notice was inoperative.-2, Held that the tender of a sum which included rent accrued subsequently as. well as prior to the cause of forfeiture, would not by itself amount to a waiver of the forfeiture.-3. Quaere, whether, the distress being within six months after the cause of forfeiture, the period within which, by stat. 8 Ann. c. 14, ss. 6, 7, a lessor may distrain after the determination of a lease, would by itself amount to an election to treat the licence as existing1! [Affirmed in Exchequer Chamber, 5 B. & S. 359 ; 33 L. J. Q. B. 254; 10 L. T. 578; 12 W. E. 829.] The first count of the declaration was for arrears of rent due from the defendants, as assignees of a licence to search for, pick and get copperas stone otherwise pyrites for a term of years granted by Banks to Austin, the reversion of which was assigned to the plaintiff. The second count was in trespass for breaking and entering the plaintiff's land, being the aea shore between high and low water mark, and taking away the plaintiff's copperas stone and iron pyrites. 4B. & S. 339. WARD V. DAY 487 The tbird count waa for conversion of the plaintiff's copperas stone and pyrites. The first count was disposed of by a plea of payment into Court, accepted by the plaintiff. The pleadings to the other counts were special; a copy of them formed part of the case hereafter stated. The cause came on to be tried, before Cockburn C.J., at the London Sittings after Hilary Term, 1863, when a verdict was found for the plaintiff subject to a special case. At the time of making the indenture next mentioned, Delamark Banks waa seised in fee of the manor of Minster, in the Isle of Sheppy, in the county of Kent. By [339] indenture made the 4th September, 1843, between Delamark Banks of the first part and Daniel Austin of the second part, Delamark Batiks gave and granted to Daniel Austin leave and licence to search for, pick and get, and carry away, all or any of the copperas atone or pyrites which might be found on the shore of the said manor between high and low watermark, for the term of twenty-one years f rorn the 24th June, 1843, at the yearly rent of 251,, payable half-yearly, on the 24th June and the 25th December in every year, subject to a proviso that, if any part of the rent should be in arrear for twenty-one days next after any of the days appointed for the payment thereof, although no demand thereof should be made, it should be lawful for Delaraark Banks, his heirs and assigns, by notice in writing delivered to Daniel Austin, his executors, administrators or assigns, to determine the grant. A copy of the indenture formed part of the case. Daniel Austin entered upon the enjoyment of the licence or grant, and on the 24th March, 1849, assigned to Josiah Hall, by deed, all the rights granted to him by the above mentioned indenture, for the residue of the term. Josiah Hall paid to the executors of Delamark Banks, who died some time previously, all rent which accrued due from him up to 1852. In 1862 the plaintiff agreed to purchase the manor of Minster from the devisees of Banks and informed Hall thereof, and the manor was actually conveyed to the plaintiff by the devisees of Banks, by a deed dated the 9th August, 1854. Between the months of July, 1852, and December, 1856, Hall had large money transactions with the plaintiff to the amount of several thousand pounds, both [340] to his debit and credit, in account with the plaintiff, and during that time no rent waa demanded of Hall, or paid by him to the plaintiff, under the licence. There was no balancing of accounts between the plaintiff and Hall, save in so far as the same were balanced during the proceedings in the Court of Bankruptcy afterwards mentioned. By indenture, made on the 31st January, 1856, Hall assigned to the defendants the grant or licence for the residue of the term by way of mortgage for a debt due from him to them. The defendants did not, however, then enter upon the sea shore of the manor, but after the assignment Hall continued to exercise the licence granted to him. On the 3rd January, 1857, Hall (who was a trader) presented a petition to the Court of Bankruptcy, pursuant to The Bankruptcy Law Consolidation Act, 1849, 12 & 13 Viet. c. 106, for arrangement with his creditors under the superintendence and control of the Court; and by a deed dated the 12th May, 1857, he assigned all his estate and effects to Charles Lee, the official assignee of the Court, George Smith and William Wills, as trustees for the benefit of his creditors. By virtue of an arrangement to that effect made under the petition, and by a deed dated 5th August, 1857, and made between the trustees of the first part, Josiah Hall of the second part, and the defendants of the third part, the graut or licence was absolutely assigned to the defendants free from all equity of redemption whatsoever. Immediately after the execution of this deed, the defendants, by oral agreement, granted to Hall the enjoyment of all the rights and privileges granted by the licence, conditionally on his paying the rent thereby reserved. [341] On the 27th March, 1858, the plaintiff, by his bailiff, made a distress for five and a half year's rent of the licence alleged to have become due at Christmas, 1857, on goods of Hall and of his son, then lying on the shore of the manor, whereupon Hall offered the plaintiff's bailiff to pay him a year's rent up to Christmas, 1857, which was refused, and a sale of the goods was made under the distress by the plaintiff. The notice of distress delivered by the plaintiff to Hall on the above occasion was as follows:-"Mr. Daniel Austin, Mr. Josiah Hall, Mr. Thomas Hermitage Day, Mr. William Henry Nicholson, and Mr. Edgar Hall. Take notice that, by the 488 ward v. day b.& authority and on behalf of Mr. James Ward, of &c., I have this 27th clay of Marob, 1858, distrained the several goods and chattels specified in the schedule or inventory hereunder written, situate on the shore of the manor of Minster, in the parish of Minster, in the Isle of Sheppy, in the county of Kent, for 1371. 10s., being five years and one half of a year's rent due to the said James Ward on the 25th December laat, and if you shall not pay the aaid five years and ona half of a year's rent so due and in arrear as aforesaid, together with the costs and charges of this distress, or replevy the said goods and chattels within five days from the date hereof, I shall cause the said goods and chattels to be appraised and sold pursuant to the statute in that case made and provided. Given under my hand the day and year above written." (Then followed the schedule or inventory.)-" Wm. Pratten," In April, 1858, actions were brought against the plaintiff by Josiah Hall and his son respectively for making the above distress, as being illegal, in both of which actioni the defendant (the now plaintiff) suffered judgment to [342] go by default. The plaintiff in each of the said actions recovered considerable damages. During the month of May and the early part of June, 1858, negotiations for a settlement of the actions, and for...
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