Bail Court. 1846. CLEMMETT v. BRADBEE. the same manufactory, upon the understanding that the plaintiff would remove a partition which separated it from a granary adjoining, that he would give the defendant possession of the granary, put window sashes into it, and that he would make improvements in the whole so as to render it "suitable for the defendant's men to work in." Before the arrangement was completed, the defendant asked the plaintiff what he would let the room for, to which the latter answered " about 20%. per annum ;" the defendant then inquired what he meant by "about," whereupon the plaintiff said, "Well, 201. a-year," but that he "could not let defendant have the granary also, unless he gave 301." The defendant then said "10%. would not make the difference, as the room was useless without it." At Christmas the defendant paid the plaintiff by cheque 77. 10s. (the amount of a quarter's rent at the rate of 30%. per annum). Possession of the granary had never been given; and the plaintiff having refused to allow the defendant to use it, and having failed to make any improvements, whereby the room was unfit for use, the defendant repeatedly complained, till, at length, the plaintiff said "the defendant and his men were a set of scamps, and the sooner they were out of the premises the better." At the end of February 1845, the defendant left the premises, and delivered the key to the clerk of the plaintiff at his warehouse. The key was not returned, and, about the end of March, the plaintiff called for rent to Ladyday, saying that he also expected a third quarter's rent; the defendant answered that he " never took the premises for any period," and that "he thought he had no right to pay for another quarter." To this the plaintiff replied "Very well," and took another cheque, (which, however, was not produced) for 77. 10s. One witness stated that from 201. to 30l. was a fair rental. This action was brought to recover a third 77. 10s. for a quarter's rent from Lady-day to Midsummer. It appeared by the undersheriff's notes to have been objected that there was "no evidence of use and occupation;" the jury however returned a verdict for the amount claimed. No leave was reserved, nor did it appear how the case had been left to the jury. Lush on a former day (January 15) moved for a rule calling upon the plaintiff to shew cause why the verdict should not be set aside and a new trial had, upon the grounds of misdirection and that the verdict was against evidence,-contending, 1. That no perfect tenancy appeared to have been created, the defendant having entered upon conditions which had not been fulfilled; 2. That the delivery of the key was a bar to an action for use and occupation: 3. That there was no evidence of a yearly tenancy. He cited Thomas v. Cook (a), Grimman v. Legge (b), Gore v. Wright (c), and Lyon v. Reed (d). A rule having been granted, Miller now shewed cause. 1. Ample evidence was given to shew that the tenancy was a yearly one, for the Courts infer the existence of such a tenancy from occupation and the payment of an aliquot part of an annual rent. Harland v. Bromley (e), Braythwayte v. Hitchcock (f). In Wilson v. Abbott (g), it was only held that Bail Court. 1846. CLEMMETT v. BRADBEE. (a) 2 B. & Ald. 119. (e) 1 Stark. N. P. C. 455. (g) 3 B. & C. 88. Bail Court. 1846. CLEMMETT v. BRADBEE. half-yearly payments did not establish a tenancy for more than a year; that case, therefore, is not adverse to the plaintiff, inasmuch as he only desires to shew that the defendant was tenant for one year. 2. It is contended by the defendant that the hiring was conditional, and that there has been no beneficial occupation. Such matters (if they can be taken into consideration in this action) were for the jury; but, according to Hart v. Windsor (a), they should be made the subject of a cross action. 3. There was no surrender by operation of law. It does not appear that the plaintiff accepted the key. Arland v. Bromley (b), is a stronger case than the present. There the keys had been delivered to a servant at the plaintiff's house, and though he subsequently stated that they had been lost or mislaid, Lord Ellenborough ruled that there was not sufficient evidence to shew a determination of the tenancy, "as it did not appear that the keys had ever reached the plaintiff, and been accepted by him." Lush, contrà. It is manifest that there must have been a misdirection. There was no evidence whatever of any agreement for a yearly tenancy, nor was it shewn either that the cheque produced was paid on account of an aliquot portion of rent, or that it was paid on account of rent at all. There was not one tittle of evidence to warrant the verdict. [He was then stopped.] WILLIAMS, J. My impression is so. There was no proof of any contract to pay a certain annual rent so as (a) 12 M. & W. 68. (b) 1 Stark. N. P. C. 455. See Dodd v. Acklom, 6 M. & G. 672. to raise the agreement of Mr. Miller as to the payment of an aliquot portion: besides, the 77. 10s. was not proved to have been paid on account of any rent at all, nor did it appear whether it was paid on account of one, two, or twelve months. The rule must therefore be made absolute. Rule absolute. WILLIAMS against WELSH and another. IN Michaelmas Term, (November 18), a rule had been obtained on behalf of the plaintiff's personal representative, calling upon the defendants to shew cause why a scire facias should not issue to revive the judgment obtained in this cause in Michaelmas Term 1825. The affidavit upon which the rule was obtained stated that the judgment was given as a collateral security for the payment of an annuity, and that payments on account of the annuity had been made in 1827 and 1828. Hoggins now shewed cause. The general rule is that a scire facias cannot be sued out upon a judgment more than twenty years old. [Williams, J. Have you any authority for that proposition?] It is so laid down in 2 Chitt. Archb. Prac. (a) and as the judgment in this case had relation back to the first day of the Term in which it was given, this application was too late. Had the judgment stood alone, and not been given as a collateral security for the payment of a sum by instalments, there could be no doubt, but, in principle, no distinction can be made. (a) 7th Ed. 832. Bail Court. The reason of the rule is that after twenty years the judg 1846. WILLIAMS v. WELSH. ment is presumed (a) to have been satisfied, and the Court will not allow the presumption to be rebutted by affidavit alone. The plaintiff's proper remedy is by action on the annuity deed, upon the trial of which he would be at liberty to prove payments within twenty years. Swann, contrà. The allowance of a scire facias upon a judgment more than twenty years old is regulated by circumstances. Here, as it stands uncontradicted that payments have been made on account of the annuity which the judgment was given to secure, the writ will be granted; and then, to the declaration in scire facias the defendant may plead payment, and rely upon the presumption that the judgment has been satisfied, if, in point of fact, nothing has occurred by which the presumption can be rebutted. [Williams, J. Does your affidavit state the particular day on which the judgment was signed ?] Yes; the 27th of November, 1825. WILLIAMS, J. It seems to me that the general question, whether there be any inflexible rule as to the (a) The stat. 3 & 4 Wm. 4, c. 27, s. 40, enacts that "no action, or suit, or other proceeding, shall be brought to recover any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy, but within twenty years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, unless in the meantime some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall have been given in writing, signed by the person to whom the same shall be payable, or his agent, to the person entitled thereto, or his agent; and in such case no such action, or suit, or proceeding shall be brought but within |