Martin, contrà, was stopped by the Court. Lord ABINGER, C. B.-I think the replication is good. The lending and advancing, and giving credit, alleged in the plea, are all consistent with its being but one transaction. There does not appear to have been any sum for which the defendants gave credit, which was not also lent and advanced: the replication, therefore, substantially puts the whole allegation in issue. The defendants may amend on the usual terms, otherwise there will be judgment for the plaintiffs. PARKE, B.-I am of the same opinion. If the averment in the plea were merely that the defendants gave credit to the bankrupts, without stating in what mode, it would be bad on special demurrer. But if the plea as it now stands were demurred to on that ground, the answer would be, that the mode of giving credit was alleged, viz. by lending and advancing the money. The lending and advancing, and giving credit, form but one transaction. ALDERSON, B.-The meaning of the averment in the plea is, that the defendants lent and advanced money to the bankrupts, and upon such loan and advance gave credit. A denial of the loan and advance is a denial of the whole. GURNEY, B., concurred. Leave to the defendants to amend on payment of costs, otherwise Erch. of Pleas, 1843. ALSAGER ช. CURRIE. Judgment for the plaintiff. Exch. of Pleas, 1843. Jan. 19. RISELEY V. RYLE, Esq. A sheriff who CASE against the sheriff of Cheshire, on the statute 8 seizes goods under a fieri facias, and, after notice that the landlord of an action on the case at the suit of the landlord. In such action, no averment of notice to the execиtion creditor is necessary. Nor need it the goods removed were Anne, c. 14, s. 1. The declaration stated, that on the 25th December, 1842, and for a long space of time then last past, to wit, for the space of five years, one J. Knott and one W. Knott occupied a certain brewery, dwelling-house, and appurtenances, as tenants thereof to the plaintiff, at a certain rent theretofore payable by the said J. Knott and W. Knott to the plaintiff for the same. Averment, that the sum of 250l., for one year's rent ending on the day and year aforesaid, was due and in arrear, and that the defendant, being sheriff of the county of Chester, by virtue of a writ of fi. fa. issued against the said J: Knott and W. Knott, together with one C. Knott, at the suit of one John Jackson, directed to the sheriff of Cheshire, took certain goods and chattels then lying and being in and upon the said brewery, dwelling-house, and appurtenances, so be alleged that then being as aforesaid in the tenure and occupation of the said J. Knott and W. Knott as tenants thereof to the plaintiff (a), of great value, &c. The declaration then with a distress. averred notice to the sheriff, before the removal of the goods, of the rent being due to the plaintiff, and request of payment thereof, and alleged as a breach, that the defendant wrongfully carried away the goods, without paying or satisfying the plaintiff the said arrears of rent, &c. &c. Pleas, first, that the said J. Knott and W. Knott did not January 1829, hold, use, occupy, or enjoy the premises in the declaration ment made in mentioned, or any or either of them, or any part thereof, as goods charge able by law In order to maintain the action, it must appear that the premises were held at a rent certain. And where the tenant entered into possession in under an agree October 1828, whereby a lease was to be granted to him from the 20th November, 1828, but no lease was granted; and the tenant continued to occupy until the time of the execution, in February 1842, but no payment of rent was shewn to have been made:-Held, that it did not sufficiently appear that he held as tenant at a rent certain, so as to bring the case within the statute, and render the sheriff liable. Quære, whether any action lies for the landlord against the execution creditor. 1843. tenants thereof to the plaintiff, in manner and form &c.; Exch. of Pleas, secondly, that the defendant did not, during the continuance of the said tenancy, take any goods or chattels, in manner and form &c.: upon which issues were joined. At the trial before Gurney, B., at the last Chester Assizes, it appeared that Messrs. J. & W. Knott took the premises in question from one William Beard, deceased, (whose heiress at law the plaintiff's wife was proved to be) by an agreement dated the 22nd October, 1828; whereby W. Beard, in consideration of the rent, covenants, and agreements thereinafter mentioned, did promise and agree with the said J. Knott & W. Knott, their executors, &c., that he the said W. Beard, his heirs or assigns, should and would, on or before the 20th day of November then next, at the costs of the said J. Knott & W. Knott, grant and execute unto them, their executors, &c., and they the said J. Knott & W. Knott did thereby consent and agree to accept and take, a good and effectual demise or lease, to be prepared by the solicitor of the said J. Knott & W. Knott, of the premises in question,-describing them as a brewery situate in Portwood, in the parish of Stockport, with the plant, utensils, fixtures, articles, and things therein mentioned in the schedule thereunder written, and also a dwelling-house attached thereto, and the yards, stabling, &c., and other appurtenances to the same belonging, and especially the use of the steam and steam-engine erected and being in the cotton-factory of the said William Beard, on the east side of and adjoining the said brewery and premises; to hold the same to the said J. Knott & W. Knott, their executors, &c., for the term of fourteen years, to be computed from the 25th day of October then next, at the yearly rent of 250l., payable as therein mentioned. The agreement then provided for the insertion in the intended lease of various covenants and provisoes, and also contained a stipulation that it should and might be lawful for the said J. Knott & W. Knott, their executors, VOL. XI. C M. W. RISELEY v. RYLE. 1843. Exch. of Pleas, &c., at any time during that demise, to purchase and take,` at the price of 60007., all the premises thereby agreed to be demised, and also the adjoining premises used as a cotton-factory. RISELEY v. RYLE. Messrs. Knott entered into possession of the brewery &c. under this agreement, in January 1829, but no lease was ever executed to them, and they continued in occupation of the premises until the period of the execution out of which this action arose, in February 1841, carrying on the business of the brewery, and living in the dwelling-house attached thereto. The plaintiff did not prove payment by them of any rent. It was contended for the defendant, that the plaintiff ought to be nonsuited, for that no subsisting tenancy was shewn such as to warrant a distress, without which the stat. 8 Anne, c. 14, s. 1, did not apply. The learned Judge thought there was evidence of a tenancy to go to the jury; and a verdict passed for the plaintiff, damages 2501. In Michaelmas Term (November 4), Jervis moved for a rule to shew cause why the verdict should not be set aside and a new trial had on the ground of misdirection, or why the judgment should not be arrested. First, this was not a case to which the remedy given by the statute of Anne is applicable. That statute merely comes in aid of a landlord who would have at common law a right to distrain. The words of the statute are, "that no goods or chattels whatever, lying or being in or upon any messuage, lands, or tenements, which are or shall be leased for life or lives, term of years, at will or otherwise, shall be liable to be taken by virtue of any execution on any pretence whatever, unless the party at whose suit the said execution is sued out shall, before the removal of such goods from off the said premises by virtue of such execution or extent, pay to the landlord of the said premises, or his bailiff, all such sum or sums of money as are or shall be due for rent for the said premises at the time of taking such goods or 1843. RISELEY v. RYLE. chattels by virtue of such execution: provided the said Exch. of Pleas, arrears of rent do not amount to more than one year's rent," &c. This clause clearly contemplates a tenancy at a rent certain, in respect of which a distress could be made: Hodgson v. Gascoigne (a). But this is not a case in which such a tenancy could be implied. This was an agreement made in contemplation of a future lease, under which the parties were tenants at will merely, Chapman v. Towner (b), Regnart v. Porter (c), and until payment of rent, of which there was no proof, no right of distress would exist, but only an action for use and occupation. Besides, the agreement stipulates for the demise not only of the brewery, &c., but also for the use of steam power from the adjoining factory; and there was no evidence that this had been enjoyed by the Messrs. Knott (d). Secondly, the judgment ought to be arrested, on the ground that the statute gives no action against the sheriff, but only against the execution creditor; the words being, that no goods &c. shall be liable to be taken &c., unless "the party at whose suit the execution is sued out" shall before their removal pay the landlord his rent. The statute, therefore, does not require the sheriff to pay over the rent, but makes the original taking a trespass if the execution creditor do not pay it over before removal of the goods. Now, this action is not for the taking, but for the removal without payment of the rent: It was undoubtedly held in Palgrave v. Windham (e), that the action lay against the sheriff for the tort in removing the goods after notice of the rent being due, but it appears to have been thought that there should be notice to the execution plaintiff. [Parke, B.-The provision of the statute is, that the sheriff shall not take the goods unless the landlord's rent be paid before their removal, that is, shall not remove them unless the rent |