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1862.

CROMPTON J. I think that in this case the objection

- was taken in time to enable the magistrates to forbear MANNERING. giving judgment. When a person summoned before

magistrates has taken an objection and invited them to decide upon it, and they have done so, this Court will not issue the prerogative writ of certiorari to bring up their order. But here the magistrates, thinking that the objection was bonâ fide taken, have forborne giving their judgment, and we ought not to compel them.

BLACKBURN J. I think the distinction between this case and the case cited is that mentioned by my brother Crompton. In that case the objection under stat. 53 G. 3. c. 127. s. 7. was not taken until after the magistrates had decided : here the notice was given before any determination by the magistrates, and when there was full time for them to forbear giving their judgment.

MELLOR J. The argument that the party summoned in this case is not within the proviso to sect. 7 of stat. 53 G. 3. c. 127. because, to some extent, he allowed the magistrates to go into the inquiry, is answered by the consideration that it is convenient that the magistrates should hear what objections are made to the rate. The proviso only requires that notice shall be given before the decision ; and here the magistrates declined to make an order, because they believed that the objection was made bona fide.

Rule refused.

1862.

HELEN EMMA HESTER TURNER v. WILLIAM Friday,

April 25th. BARNES and others.

Mortgage decd.

Building By indenture between G. W. T., proprietor of shares in a Building Society. Society, and the defendants, trustees of the Society, reciting, among Tenancy at other things, that G. W. T. had, pursuant to the rules of the Society, will. agreed to pay unto the Society for the term of fourteen years, the quar- Distress. terly sum of 161. 3s. 2d. in respect of his shares; and that for securing 8 Ann. c. 14. the quarterly payments he had agreed to execute the security intended ss. 6, 7. to be effected by that indenture, G. W. T. conveyed a house, of which he was seised in fee, to the defendants in fee. The deed contained a proviso for quiet enjoyment by G. W. T. if he paid the quarterly sums &c. and observed the rules of the Society and the corenants in the deed; but that in case he made default the defendants might enter, and lease or sell the house, and out of the proceeds retain the amount of payments in arrear, &c., and pay the surplus, if any, to G. W. T.; and a clause by which G. W. T. agreed to become tenant of the house to the defendants, their heirs or assigns, or other the trustee or trustees for the time being of the Society, thenceforth during their will, at the clear net yearly rent of 66l., payable on the usual quarterly days, subject to the powers of distress and entry for non-payment thereof, and to all usual remedies as in leases of like property. G. W. T. died, leaving payments in arrear; the defendants distrained upon the goods in the house, which was in the occupation of his widow, who subsequently took out administration.

1. Quære, whether the deed created the relation of landlord and tenant between the parties? But assuming that it did, held that, the tenancy under the mortgage being at most only a tenancy at will, the distress was not made during the possession of the tenant from whom the rent became due within the proviso in sect. 7 of stat. 8 Ann. c. 4., and therefore was not justified under sect. 6 of that Act.

2. Quare of the decision in Walker v. Giles, 6 C. B. 662.

THE first count of the declaration was for the deten

tion of the plaintiff's goods, that is to say, household furniture, and other chattels and effects of the like nature. The second count was for the conversion of the same goods.

Pleas.-1. To the first count, a traverse of the detention. 2. To the second count, not guilty by statute 11 G. 2. c. 19. s. 21. 3. To the whole decla

1862.

TURNER

V. BARNES,

CO

mess

ration, that the goods were not the plaintiff's. 4. To
the whole declaration, that G. W. Turner, by deed
conveyed a messuage and hereditaments then in his
occupation and possession to the defendants, their heirs
and assigns, by way of mortgage for securing payment
of the sum of 5501. and interest thereon, by instalments
of 161. 3s. 2d. payable quarterly as therein mentioned;
and G. W. Turner thereby agreed to become tenant
to the defendants, their heirs or assigns, of the here-
ditaments and premises thereby appointed and con-
veyed, thenceforth during their will, at the clear net
yearly rent of 66l., payable on the usual quarterly days,
namely, &c., subject to the powers of distress and entry
for non-payment thereof, and to all usual remedies as in
leases of like property. Averment: that G. W. Turner
held and enjoyed the messuage and premises as tenant
thereof to the defendants under the deed and lease
aforesaid and the agreement contained therein, from
the time of the making of the said deed and lease
until the time of his death, and that the plaintiff, as ad-
ministratrix of G. W. Turner, was in possession of and
held and enjoyed the messuage and premises from the
death of G. W. Turner until and at the time of the
detention and committing of the alleged grievances ;
and that, at the time of the death of G. W. Turner, a
large sum of the rent aforesaid became and was due and
in arrear and unpaid to the defendants, and the same so
continued due and in arrear and unpaid at the time of
the detention and committing of the alleged grievances;
and that the goods in the declaration mentioned were at
the time of the detention and committing of the alleged
grievances in and upon the messuage and premises :

1862.

TURNER

BARNES.

wherefore the defendants, within six calendar months next after the death of G. W. Turner, and during the continuance of the title and interest of the defendants in the messuage and premises, and while the plaintiff was still in possession of the messuage and premises, took and distrained the goods and detained the same, and committed the acts in the declaration mentioned, according to the form of the statute in such case made and provided, and as they lawfully might for the cause aforesaid, and which detention and grievances are the same detention and grievances whereof the plaintiff complains.

The plaintiff took issue and joined issue respectively on the several pleas; and for a further replication to the 4th plea set out the deed in that plea mentioned, by which G. W. Turner, being the proprietor of shares in The Exeter and West of England Permanent Benefit Building Society, secured to the Society the payment of the quarterly sums payable on account of his shares.

There was also a demurrer to the 4th plea and joinder therein.

Rejoinder. That, before the detention and committing of the grievances complained of, G. W. Turner made default in payment of the sums which, under the rules of the Society, became payable by him on account of the said shares, and in the observance and performance of the rules of the Society, and of the covenants on his part in the deed contained.

Issue on the rejoinder.

There was also a demurrer to the rejoinder, and joinder therein.

1862.

TURNER

BARNES.

On the trial of the issues in fact, before Channell B., at the Summer Assizes for Devonshire in 1861, a verdict was found for the plaintiff for 1551., subject to the following special case.

At the time of the making of the indenture hereinafter next mentioned, G. W. Turner, of, &c., was seised in fee and was also in the occupation of a messuage or dwelling house with the appurtenances, being No. 14, Castle Street, in the parish of St. Lawrence, in the city of Exeter, and was also the proprietor of five whole shares and one half share in a Benefit Building Society, called The Exeter and West of England Permanent Benefit Building Society, of which Society the defendants were trustees.

By an indenture, bearing date and made the 22d January, a.d. 1857, between and by G. W. Turner, of the one part, and the defendants, therein described as trustees of The Exeter and West of England Permanent Benefit Building Society, of the other part, reciting, among other things, that it had been agreed that 5501. should be paid out of the funds of the Society to G. . Turner, in full satisfaction of his shares, and that in consideration of such payment G. W. Turner had, pursuant to the rules of the Society, agreed to pay unto the Society for the term of fourteen years commencing from the 22d January, 1857, the quarterly sum of 161. 3s. 2d. in respect of his shares, the first and every subsequent quarterly payment to be made at the times and in manner prescribed by the said rules, and that for securing the quarterly sums and other monies thereafter to become payable on account of, or with reference to the said shares, and that security respectively, G. W. Turner

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