Wilkinson v Hall and Another
| Jurisdiction | England & Wales |
| Judgment Date | 30 January 1837 |
| Date | 30 January 1837 |
| Court | Court of Common Pleas |
English Reports Citation: 132 E.R. 506
IN THE COURT OF COMMON PLEAS
S. C. 3 Hodges, 56; 6 L. J. C. P. 82. Referred to, Doe v. Lightfoot, 1842, 8 Mee. & W. 564. Discussed, Doe v. Day. 1841, 2 Q. B. 153. Dictum applied, Duxbury v. Sandiford, 1898, 80 L. T. 553.
[508] wilkinson v. hall and another. Jan. 30, 1837. [S. C. 3 Hodges, 56; 6 L. J. C. P. 82. Eeferred to, Doe v. LigUfoot, 1842, 8 Mee. & W. 564. Discussed, Doe v. Day, 1841, 2 Q. B. 153. Dictum applied, Duxbury v. Sandiford, 1898, 80 L. T. 553;] An allegation that Defendant held premises as tenant for a term of years, from year to year, is not made out by proof that he held by the quarter.-Plaintiff mortgaged land in fee, with a proviso for redemption on payment of principal in June 1833 ; but it was agreed that the mortgagee should not call in the principal till 1840, if interest were regularly paid in the mean time; and that the mortgagor should hold the premises and take the rents, issues, and profits for his own use, till default should be made in the payment of principal and interest as aforesaid: Held, that this operated as a redemise to the mortgagor till 1840. This was an action of debt upon the statute 4 G. 2, c. 28, s. 1, brought by the Plaintiff, who claimed as one of two tenants in common in fee of a wharf and warehouse, called Botolph Wharf, or Botolph Quay, in the city of London, against the Defendants, as tenants of the same premises, to recover double the yearly value of one undivided moiety of the same premises, which it was "alleged the Defendants had wrongfully held over after the service upon them of notice to quit and demand of possession. The declaration contained two counts upon the statute, as follows :- That whereas the Defendants, before and at the time of the giving of the notice to quit and making the demand as herein-after mentioned, and from thence until a certain day, to wit the 14th of June 1834, held and enjoyed one undivided moiety or half part, the whole into two equal parts to be divided, of and in certain tenements, to wit, a certain quay or wharf, and certain warehouses, vaults, and buildings, with the appurtenances, as tenants thereof to the Plaintiff; that is to say, as tenants thereof for a term of years, from year to year, for so long a time as the Plaintiff and the Defendants should respectively please ; and the Defendants, during all the time aforesaid, held and enjoyed the other undivided moiety of the said tenements with the appurtenances as tenantsj thereof to one William Stennett, for a term of years, from year to year; that [509] is to say, for so long a time as the said W. Stennett and the Defendants should respectively please, the reversion of and in the said first-mentioned one undivided moiety of the said premises with the appurtenances during all that time belonging to the said Plaintiff, and the reversion of and in the other undivided moiety thereof during all that time belonging to the said W. Stennett; and thereupon, heretofore, and whilst the Defendants so held and enjoyed the said first-mentioned one undivided moiety of the said tenements with the appurtenances as tenants thereof to the Plaintiff, and the said other undivided moiety thereof as tenants thereof to the said W. Stennett as aforesaid, and whilst the said reversion of and in the said first-mentioned one undivided moiety thereof so belonging to the Plaintiff, and whilst the said reversion of and in the said other undivided moiety thereof so belonged to the said W. Stennett as aforesaid, to wit, on the llth of December 1833, the said Plaintiff and the said W. Stennett, and each of them, gave notice in writing to the Defendants,, and thereby demanded of and required the Defendants to quit and deliver up the possession of the said tenements with the appurtenances to them the Plaintiff and the said W. Stennett, or - to either of them; that is to say, possession of the said first-mentioned undivided moiety to the Plaintiff or the said W. Stennett, and the possession 3 BING. (N. C.) 510. WILKINSON V. HALL 507 of the said other undivided moiety to the said W. Stennett or to the Plaintiff, on the said 14th day of June 1834, provided the said Defendants' tenancy of the said premises originally commenced at that period of 'the year; or otherwise, to quit and deliver up the possession of the said premises, that is to say, of the said first-mentioned undivided moiety thereof to the Plaintiff or the said W. Stennett, and the possession of the said other undivided moiety thereof to the said W. Stennett or the Plaintiff, at the end of the [510] current year of their tenancies, which should expire next after the end of half a year from the time of their being served with the said notice : and the Plaintiff averred the said term and tenancy of the said first-mentioned undivided moiety of the said tenements with the appurtenances, the reversion of and in which so belonged to him the Plaintiff as aforesaid, and the said term and tenancy of and in the said other undivided moiety of the said tenements with the appurtenances, the reversion of and in which so belonged to the said W. Stennett as aforesaid, afterwards, to wit, on the 14th of June 1834, ended, and were and each of them was duly determined by the said notice; and that, after the determination of the said tenancy of the Defendants of and in the said first-mentioned undivided moiety of the said tenements with the appurtenances the reversion of and in which so belonged to the said Plaintiff as aforesaid, and after the determination of the tenancy of the said Defendants, of and in the undivided moiety of the said tenements with the appurtenances, the reversion of and in which so belonged to the said W. Stennett as aforesaid, and whilst the Defendants continued in possession of the entirety of the said tenements with the appurtenances as aforesaid, and the Plaintiff was so entitled to the possession of the said first-mentioned undivided moiety thereof, and whilst the said W. Stennett was so entitled to the possession of the said other undivided moiety thereof as aforesaid, to wit, on the said 14th of June 1834, .the said Plaintiff and the said W. Stennett, by a certain notice in writing then made and signed by him the Plaintiff and the said W. Stennett, and delivered to the Defendants, demanded and required the Defendants to deliver the possession of the said tenements with the appurtenances to the Plaintiff and the said W. Stennett; that is to say, the Plaintiff thereby demanded and required the Defendants to quit and de-[511]-liver up the possession of the first-mentioned undivided moiety of the said tenements with the appurtenances to him the Plaintiff or the said W. Stennett; and the said W. Stennett thereby required the Defendants to quit and deliver up the possession of the said other undivided moiety of the said tenements with the appurtenances to him the said W. Stennett or the Plaintiff: nevertheless, the Defendants, not regarding the statute in such case made and provided, did not nor would, on the determination of the said term and tenancy of and in the said first-mentioned undivided moiety of the said tenements with the appurtenances as aforesaid, deliver the possession of the said first-mentioned undivided moiety of the said tenements with the appurtenances, of any part of such moiety, to the Plaintiff or to the said W. Stennett, or any other person or persons for or on behalf of him the Plaintiff, according to the said notice so given, and the said demand so made as aforesaid, but wholly neglected and refused so to do; but on the contrary thereof, the Defendants wilfully held over the said first-mentioned undivided moiety of the said tenements with the appurtenances after the determination of the said term and tenancy of the said Defendants in the said first-mentioned undivided moiety of and in the said tenements with the appurtenances, and after the said notice so given as aforesaid, and the said demand so made as aforesaid, for a long space of time, to wit, from thence hitherto; during all which time the Defendants so kept the Plaintiff out of the possession of the said first-mentioned undivided moiety of the said tenements with the appurtenances, and every part thereof, the Plaintiff, during all that time, being entitled to the possession of the said first-mentioned undivided moiety thereof, contrary to the form of the statute in such case made and provided. The Plaintiff then averred that the said first-mentioned undivided moiety of the said tene-[512]-ments with the appurtenances, during the said time of holding over the same and keeping the Plaintiff out of the possession thereof as aforesaid, was of great yearly value, to wit, of the yearly value of 10001.; and by reason of the premises, and by force of the statute in such case made and provided, the Defendants became liable to "pay to the Plaintiff a large sum of money, to wit, the sum of 16211. 18s. 4d., being at the rate of double the yearly value of the said first-mentioned undivided moiety of the said tenements with the appurtenances, for so long time as the same was so detained as aforesaid; and thereby, and by force of the statute, an action had accrued to the Plaintiff, to demand 508 WILKINSON V. HALL 3 BING. (N. C.) 513. and have of and from the Defendants the said sum of 16211. 18s. 4d., parcel of the sum demanded. The second count alleged that the Defendants, on the 3d of December 1833, and from thence until a certain day, to wit, the 14th day of December in the same year, held and enjoyed one undivided moiety of the said tenements with the appurtenances, as tenants thereof to the Plaintiffs, for the residue and remainder of a certain tenancy for a term of years to them the Defendants theretofore, to wit, on the 12th of June 1832, granted, the reversion of the one undivided moiety in that-count mentioned, of the said tenements with the appurtenances, during all that time belonging to...
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