arguments urged against the defendant when the special case was before the Court was, that the question, whether the plaintiff ought to have demanded the rent or made an actual entry was not to be decided by the common law, or by the 4th Geo. 4. c. 28, but by the special provisions in the lease, and therefore it cannot now be said that this is a case within the statute. That statute seems to contemplate such cases only as those in which the ordinary rules in the action of ejectment would be applicable, and not a case like the present. The 4th section, upon which the decision in Roe v. Davis was founded, has the word "such," (such ejectment) i. e. referring to the cases enumerated in the second section, none of which are cases of this description. It is true that the second section is in the disjunctive, and begins by stating first, that in all cases between landlord and tenant when half a year's rent shall be in arrear, and the landlord has a right of re-entry for non-payment thereof, he may bring ejectment, &c. or, in case the same cannot be legally served, &c. or, in case such ejectment shall not be for the recovery of any messuage, &c. and in case of judgment against the casual ejector or nonsuit for not confessing lease, entry and ouster, it shall appear by affidavit or be proved upon the trial in case the defendant appears, that half a year's rent was due, before the declaration served, and that no sufficient distress was to be found on the premises, and that the lessor had power to re-enter; then and in every such case the lessor in ejectment shall recover judgment and execution, &c.; but it is perfectly clear from this enumeration of the cases to which this section refers, that this is not one of those cases. It cannot be said therefore that Roe v. Davis is an authority for refusing this application in all cases after trial; and if it be so considered, it seems to have been decided without due regard to the words of the statute. This is to be decided as if the statute had not passed, and it seems but reasonable that the defendant should have that indulgence extended to him which the Court in former times was in the habit of granting to defendants in ejectment. 1824. DOE v. MASTERS. ABBOTT, C. J. (a)-My learned brothers and myself agree in thinking that Doe v. Davis is a decision in point, and we are perfectly satisfied that if the ancient practice of the Court in letting in defendants in the manner now contended for, had been more extensive than it is stated to have been, still it ought not to be allowed to let in a particular case which happened not to be within the very terms of the statute. We consider the line drawn by the statute as the line beyond which this species of application ought not to be extended, even in cases not precisely within its terms. That is a very reasonable construction, and it is of great importance that the statute should be so construed, because we cannot conceive any thing more unjust, than that a tenant should be allowed to put his landlord to the trouble, delay, and expense of proving a case of forfeiture, and then turn round upon him after he is entitled to execution, and say, "Your ejectment shall not avail yon; I'll pay you your rent and your costs, and I shall remain in possession of the premises and keep the lease." We certainly shall not sanction that doctrine, but put the same construction upon the statute in this particular case, as it received in Roe v. Davis. Rule discharged with costs. (a) Holroyd, J. was gone to chambers. Tuesday, February 3. A. being sole owner of a British-built ship, signed and delivered KAIN T. OLD and Others, Executors of DODDS. ASSUMPSIT. The declaration stated that in the lifetime of William Dodds, in consideration that the now plaintiff Kain would buy from Dodds a certain vessel, to to B. a written instrument describing the vessel, among other enumerated particulars, as being copper-bolted, &c. but not reciting the certificate of her register. At the bottom of the instrument was written the following memorandum:-" Sold the withinmentioned ship to B." The vendor afterwards received the purchase-money and executed a bill of sale to the vendee in the usual form, but the vessel was not therein described as copper-bolted. B. then resold the vessel to C. upon the like terms as he had bought her, and executed to him a similar conveyance. It turned out that the vessel was not copper-bolted, and C. brought case against B. and recovered damages for the wit, the Snow Fortitude, at the price of 1650l. to be therefore paid by plaintiff to Dodds, he (Dodds) undertook and faithfully promised plaintiff that the said vessel was then copper-bolted. Averment, first, that plaintiff, confiding in the promise of Dodds, bought the said vessel of him, and paid to him the price thereof; and that plaintiff, further confiding as aforesaid, afterwards, and after the death of Dodds, sold the said vessel to one James Shepherd, and upon such sale, warranted the vessel to be copper-bolted; that at the time of making the promise of Dodds, and at the time of the sale, the said vessel was not copper-bolted, by means whereof the said vessel had become and was of little value to plaintiff; and by reason thereof Shepherd brought an action against him for a breach of warranty, and plaintiff paid 10007. in satisfaction of the damages and costs recovered against him by Shepherd, and in payment of his own costs in defending that action, to the damage of plaintiff of 2,000l. Plea, non assumpsit, and issue thereon. At the trial before Abbott, C. J. at the London Adjourned Sittings after Trinity Term, 1822, the plaintiff had a verdict, damages 7831. 5s. 6d. subject to the opinion of the Court upon the following case :-On the 25th October, 1816, the testator, being sole owner of a ship called The Fortitude, signed and delivered to the said G. J. Kain an instrument of which the following is a copy:-" For sale or charter, one boom-main-sail, one lower-steering-sail, one middle-stay-sail, and one top-gallant-stay-sail, The Snow Fortitude, 4. 1. British built, copper-bolted, and new coppered in 1813, admeasures per register 277 tons; is well calculated for any trade where a vessel of her dimensions is wanted; lying in the Surrey Canal. Inventory `(here followed an inventory of stores, furniture, &c.) Sold the within-mentioned ship to Messrs. Kain and Son 1824. KAIN v. OLD. the breach of the warranty in that respect; and B. now brought assumpsit against A.'s executors upon the same warranty, averring as damage the verdict recovered against him by C.: Held that the action was not maintainable, inasmuch as the instrument containing the warranty, was void by the 34 G. 3. c. 68. s. 14. for not reciting the certificate of the ship's register. 1824. ΚΑΙΝ 0. OLD. meaning G. J. Kain). W. Dodds." On the 28th October, 1816, the testator received the said 1650l. and duly executed a bill of sale of the said ship to the said G. J. Kain, which bill of sale accompanied the case, and contained the usual covenants, but it did not describe the ship as copperbolted. On the 14th September, 1818, Kain, having expended a considerable sum of money upon the Fortitude, agreed to sell her to J. Shepherd, according to printed particulars substantially the same as those already set out. At the foot of those particulars Kain wrote, "I agree to sell Mr. Shepherd the Fortitude, with all her stores, as per inventory, for the sum of 2,300l. G. J. Kain." The Fortitude was conveyed by Kain to Shepherd by bill of sale, in the same form as that by which she had been conveyed by the testator to Kain. In Hilary Term, 1821, Shepherd commenced an action against Kain in the Court of King's Bench, in respect of the said last-mentioned sale. A copy of the declaration accompanied the case, from which it appeared that it was upon a warranty that the vessel was copper-bolted, with a count for a deceitful representation that she was copper-bolted. Upon the trial of that action, the jury found a verdict for Shepherd, damages 500l. which, together with 142/. 10s. taxed costs, were paid by Kain to Shepherd before the commencement of this action. Kain's own costs in that action amounted to 140l. 15s. 6d. and make, together with the two former sums, the aggregate sum of 7831. 5s. 6d. Kain gave no notice of the action of Shepherd v. Kain to Dodds or his executors. At the time of the sale of the ship by Dodds to Kain, the ship was not copper-bolted. The questions for the opinion of the Court are, Whether Kain is entitled to recover in this action, and to what amount. If the Court shall be of opinion that the action is maintainable, and that Kain is entitled to recover as well the damages recovered against him in the action of Shepherd v. Kain, as also the taxed costs paid by him, and his own costs in the said action, then the verdict is to stand for 7831. 5s. 6d. If the Court shall be of opinion that he is entitled to recover the said two sums of 500l. and 1427. 10s. or is only entitled to recover in this action the damages found by the jury in the action of Shepherd v. Kain, then the verdict is to be reduced accordingly. But if the Court shall be of opinion that Kain is not entitled to recover any thing, then a nonsuit to be entered. Manning, for the plaintiff. The objection raised on the part of the defendants to the maintenance of this action, is founded chiefly upon two cases. The first is Biddell v. Leeder, (a) which, though mainly relied on, is essentially distinguishable from the present case. The question there turned upon the construction of the Register Act, (b) and was decided upon the ground that the instrument contained words of present sale; for it is said there by Bayley, J. "If it be necessary, in order to bring an agreement within the operation of this statute, that it should convey a present interest, this agreement certainly possesses that character." And by Holroyd, J. "This instrument plainly shews that it is an agreement for an immediate and actual sale." But the instrument in this case contains no words expressive of any intent to make an immediate transfer of the vessel, and the court will not infer it, because they will rather presume that the parties meant to act in conformity to the law. Biddell v. Leeder, therefore, does not govern this case. The other case, Pickering v. Dowson, (c) certainly comes nearer the present in its circumstances; but the present objection, that such an instrument as this will not support an action, was never suggested there either by the bench or at the bar; the point decided there was, that where a representation is made before the sale with opportunity for the vendee to ascertain its truth, and the contract of sale is afterwards reduced into writing, but does not contain the representation, an action of deceit will not lie on the ground that the article sold does not answer the representation, (a) Ante, vol. ii. 499. (8) 34 G. 3. c. 68. s. 14. (c) 4 Taunt. 779. 1824. KAIN v. OLD. |