1822. BONNER against WILKINSON. Judges of both Benches. This, therefore, appears to be a solemn decision, upon conference between the Judges of the two Courts, that this is a good estoppel; and Rastall's Entries, tit. Debt in Courts below, pl. 159.b. is to the same effect. Besides, the Court cannot assume Callerton to be only a house, because the defendant might have pleaded it not to be a vill. ABBOTT C. J. It is certainly true that a party cannot, by his own private instrument, defeat the object of an act of parliament, but he may thereby waive a provision intended for his own benefit. The place of abode serves to distinguish the individual to be outlawed from other persons of the same name, and therefore is an important part of his description. It appears from the cases cited, that the court held, soon after the passing of the act, 1 Hen. 5. c. 5. that the execution of a bond, in which the party was described as of a given place, did not estop him from saying that he was not of that place. It seems, however, that, in the reign of Rich. 3., on mature consideration, the judges of both courts, upon conference, overruled the judgments previously given, and determined the better construction of the statute to be, that a party should not be allowed to say that he was not of the place of which he had described himself in the bond; and, in my experience, I have always considered that as a settled rule of law. I think, therefore, the plea to the assignment of errors is a good estoppel, and consequently that the judgment of outlawry must stand. HOLROYD J. (a) I think this outlawry ought to stand, It appears from the authorities cited in argument, that (a) Bayley J. was absent. in the time of Rich. 3. the judges of both courts, upon conference, decided, contrary to former authorities, that a party should be estopped from saying that he was not of the place of which he had described himself to be by his own deed, and from that time it seems to me that the law has been considered as settled; for, otherwise, there would have been subsequent cases on the subject. The object of the statute was, that it should appear by the description in the indictment or writ, what person of the particular name it was that was intended to be outlawed. Now, that object would be better answered by describing the person as of a particular house, than as of a ville or hamlet, for it is less probable that there should be two persons of the same name in the smaller than in the larger place. BEST J. concurred. Judgment of outlawry affirmed. 1822. BONNER against WILKINSON. HALL against DOE on the Demise of SURTEES and Another. THIS was a writ of error, brought to reverse a judg ment obtained in ejectment in the Court of Pleas at Durham. The declaration was on a demise by Tuesday, Where premises were mortgaged in fee, with a proviso for reconveyance, if the principal this were not paid on a given day, and in the mean time, that the mortgagor should continue in possession; upon special verdict, it was found that the principal was not paid on the given day, but that the mortgagor continued in possession. There was no finding by the jury either that interest had or had not been paid by the mortgagor: Held, that upon finding, it must be taken, that the occupation was by the permission of the mortgagee, and, consequently, that although more than twenty years had elapsed since default in payment of the money, still the mortgagee was not barred by the statute of limitations : Held, also, that an entry is not necessary to avoid a fine levied by the mortgagor. W. Surtees, 1822. HALL against DOE dem. SURTEES. W. Surtees, on the 8th July, 1817, of an undivided third part of certain premises habendum from 7th July, 1817, for seven years, &c. A special verdict was found, stating the following facts. On the 1st May, 1780, one Thomas Labourn being seised of the tenements in question, in fee, mortgaged them to Auburn Surtees in fee, for the sum of 8001, with the usual proviso for reconveyance, if Labourn should pay A. S. the 8007. with interest on the 3d November, 1780, and that Labourn should occupy the premises until default. A default having been made, A. S. thereby became scised in fee by law of the premises, but never entered, and Labourn continued to occupy them until his death. A. Surtees, on the 30th September, 1800, died intestate, and the right to the premises in question descended to W. Surtees, his heir at law. Thomas Labourn died on the 30th June, 1804, and the estate descended to J. Labourn, his son and heir at law, who entered and occupied part of the premises in question, until 1807; the residue being occupied by his mother till her death, in 1813. J. Labourn, in October 1806, conveyed the premises for a valuable consideration to Michael Hall, the defendant below, and on the 8th October, 1806, a fine was levied with proclamations in the Court of Pleas, in the county palatine of Durham, of the premises in question, to the use of Michael Hall. M. Hall, on the 1st August, 1807, entered and occupied one messuage part of the premises in question, into which Joseph Labourn had entered upon the death of Thomas Labourn, and continued to оссиру the same; and immediately after the death of Elizabeth Labourn, in September, 1813, Michael Hall entered into possession, and occupied the residue of the premises in question. W. Surtees, on the 13th July, July, 1813, demanded of Michael Hall the possession of the same, which he refused to deliver up. Littledale, for the plaintiff in error. William Surtees is not entitled to recover, because he has not brought his ejectment in time. His right of entry accrued on the 3d November, 1780, when there was default in the payment of the principal and interest. If the interest had been paid from time to time, then indeed the mortgagor could not be considered as holding adversely to the mortgagee. Hatcher v. Fineaux. (a) But that fact is not found. In Sir Moyle Finch's case (b), it is laid down, that a lessee for years, holding over his term, becomes a tenant at sufferance, and shall not pay rent; for it is the folly of the lessor to suffer the lessee to continue in the possession of his land after his term and it is clear, in this case, that the money not having been paid at the appointed time, the mortgagor was tenant by sufferance; for he came in by a rightful title, though he held over wrongfully. Then, here there being no payment of interest, the mortgagor held by wrong, and consequently the plaintiff ought to have brought his action within 20 years. But, secondly, the plaintiff is barred by the fine, and he ought to have made an entry in order to avoid it. [Bayley J. The fine can have no operation; the mortgagor had no freehold ; for in order to constitute a title by disseisin, there must be a wrongful entry; whereas in this case, there has been at most only a wrongful continuance of the possession. Doe v. Perkins (c) and Smartle v. Williams (d) are authorities expressly upon that point.] 1822. HALL against DoE dem. SURTEES. (a) 1 Ld. Raymond, 740 (b) 2 Lem. 143. VOL. V. Z z Tindal, 1822. HALL against Doɛ dem. SURTEES. Tindal, contrà. The special verdict only states, that the principal was not paid on 3d November, 1780. It was the duty of the mortgagor to pay both principal and interest; and the Court will presume, until the fact be found otherwise, that the mortgagor did his duty. And then this is the case of a mortgagor in possession, paying interest to the mortgagee. ABBOTT C. J. Upon this finding, I am of opinion that this must be considered as an occupation by the permission of the mortgagee; and if so, there was no adverse possession, and the statute of limitations does not apply. The payment of interest would have been conclusive evidence of a continuing tenancy. That fact is not found by the jury; but that is not the only ground upon which the Court can proceed. If there were any circumstances from which the jury might have presumed that the premises were not occupied by the permission of the mortgagee, they ought to have found that fact. Here, however, is nothing to justify us in presuming that this occupation was not by the permission of the mortgagee. The judgment, therefore, must be for the plaintiff. BAYLEY J. I am of the same opinion. The argument proceeds on the ground, that the mortgagor was in possession by wrong; but as the special verdict does not find a wrongful possession, we ought not to presume it. The statute of limitations cannot attach, unless it is shewn that the mortgagor held in opposition to the will of the mortgagee. It is clear the fine cannot operate to displace or divest the right of the mort gagee, |