Wheeler against Branscombe
| Jurisdiction | England & Wales |
| Judgment Date | 27 November 1843 |
| Date | 27 November 1843 |
| Court | Court of the Queen's Bench |
English Reports Citation: 114 E.R. 1290
IN THE QUEEN'S BENCH
S. C. D. & M. 406; 13 L. J. Q. B. 83. For subsequent proceedings see 6 Q. B. 13.
wheelbr against branscombe. Monday, November 27th, 1843. Replevin. Avowry for a quarter's .rent in arrear. Pleas: 1. Non tenuit. 2. Riens in arrere. Issues thereon. Defendant was mortgagor in possession, having mortgaged to H. in 1834. Defendant, in 1838, demised the premises to plaintiff at an annual rent, payable quarterly ; and in 1840 he gave H. an authority to receive the rent of the premises, described as occupied by plaintiff and belonging to defendant. H. communicated this authority to plaintiff, and gave him notice not to pay rent to defendant but to H. Plaintiff accordingly paid several quarters' rent to H.: but, shortly before Michaelmas 1841, when the quarter's rent mentioned in the avowry became due, defendant gave notice to plaintiff not to pay it to H. but to defendant. Plaintiff paid to neither; and defendant distrained. At that time, a small arrear of interest was due from defendant to H. under the mortgage. Held, 1. That the authority and payments of rent effected no change in the tenancy, and that the issue on the plea of uon tenuit must be found for the defendant. 2. That the issue on the plea of riens in arrere must also be found for the defendant, since, if the facts proved amounted to a defence, they ought to have been made the subject of a special plea. But semble, that the facts did not amount to a defence. [S. C. D. & M. 406; 13 L. J. Q. B. 83. For subsequent proceedings see 6 Q. B. 13.] Replevin. Avowry for a quarter's rent due 29th September 1841, from plaintiff to defendant. Pleas. 1. Non tenuit. 2. That no part of the rent, &c. was or is in arrear in manner and form, &c. Issues thereon. On the trial, before Wightman J., at the Devonshire Summer Assizes, 1842, it appeared that, in 1838, the defendant demised the premises mentioned in the avowry to the plaintiff for three years certain from March 25th in that year, at an annual reut of 211., payable quarterly; and that after the expiration of the three years (a) The Court sat in Bane on the 27th and 28th of November, and from the 4th to the 9th of December, inclusive. Q. B.S74. WHEELER V. BRANSCOMBE 1291 plaintiff continued to occupy the premises, paying the same rent. In 1834 the defendant had mortgaged the same together with other premises to one Hawkins; and in March 1840, the mortgage still subsisting, he signed and gave to Hawkins an authority to receive the rents, as follows. "I hereby authorise Mr. John Hawkins, of," &o,, "to receive the rents, quarterly or at any other time or timea that he may think proper, [374] of Mr, Wheeler and Mr. Eardley, for the houses that they now occupy belonging to me, situate in Torquay." Hawkins made the plaintiff acquainted with the terms of this authority, and also, in May 1840, served him with notice not to pay to Brauacombe "your former landlord of the same; he having agreed that the rents arising therefrom shall in future be paid to me, or to my order. J. Hawkins."...
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Same against Heath
...... English Reports Citation: 115 E.R. 5 QUEEN'S BENCHSame against Heath S. C. 13 L. J. Q. B. 247; 8 Jur. 688. [13] branscombe against scarbrough. same against heath. Friday, May 24th, 1844. Replevin bonds are not an exception to the rule that, on a bond, the plaintiff cannot ...[S. C. 13 L. J. Q. B. 247; 8 Jur. 688.] The plaintiff in these actions was the defendant in an action of replevin, Wheeler v. Branscomle (5 Q. B. 373). The cause was tried, and a verdict found for the plaintiff, but leave reserved to move to enter a verdict for the ......