Exch. of Pleas, 1842.

Jan. 26.

Where premises are let for a certain

term to A. and B., and A.

the expiration

of the term, with B.'s assent, both are liable in an action for use and occupation, for so long as A.

THIS

CHRISTY V. TANCRED & THOMPSON.

was an action of assumpsit, commenced on the 21st of December, 1840, to recover the sum of 498l. 13s. 3d. The declaration contained an indebitatus count for use holds over after and occupation, a count for money paid by the plaintiff for the use of the defendants, and for money found to be due on account stated. The defendants severally pleaded non assumpsit, upon which issue was joined. The cause came on to be tried before Lord Abinger, C. B., at the sittings for London after Hilary Term, 1841, when a verdict was found for the plaintiff, damages 498l. 13s. 3d., subject to the opinion of the Court upon the following case, with liberty for either party to turn it into a special verdict.

continues actually to occupy, but no longer.

Quære, whe

ther both are so

liable where A. holds over without B.'s consent.

A judgment

obtained by A.

in an action of

use and occu

pation, against

B. and C., is no evidence to

charge B. in a

subsequent ac

tion brought by

A. against him alone, for the use and occupation of the same premises

for a subsequent period.

By articles of agreement, bearing date the 12th July, A. D. 1838, and purporting to be made between the plaintiff of the one part, and Sir James Douglas Hamilton Hay, Bart., Sir John Ross, Knt., Alexander Finlay, Augustus Warren Payne, the above-named defendants Charles Tancred and Charles Thompson, and Thomas Tisdall, Calder Campbell, Cay Lewis, and Christian Hesse, of the other part, which said articles of agreement were signed by all the parties thereto except the said Augustus Warren Payne and Thomas Tisdall, who did not sign the same, the plaintiff agreed to let unto the said Sir J. D. H. Hay, Sir J. Ross, A. Finlay, A. W. Payne, the defendants Charles Tancred and Charles Thompson, and T. Tisdall, C. Campbell, C. Lewis, and C. Hesse, and the said parties agreed to take from the plaintiff, the premises in question, for the term of one year, to be computed from the 24th June then last, at the rent of £420; such rent to be payable quarterly, on the 29th September, the 25th of December, the 25th of March, and the 24th of June, then next ensuing, the first of such payments to be made on the

1842.

CHRISTY

v.

TANCRED.

29th of September then next ensuing. At the time of the Exch. of Pleas, making of the above agreement, the defendants, and all the other parties to the agreement, except the plaintiff, were provisional directors of a joint-stock banking company called "The London and Dublin Trades Banking Company." It appeared in evidence that the defendant Tancred, on the 17th of April, 1838, applied for and obtained from the secretary of the company a certificate in the following form :

"LONDON AND DUBLIN TRADES BANK.

"London, April 17th, 1838. "This is to certify, that Charles Tancred, Esq., will be entitled to five shares of £10 each in the London and Dublin Trades Bank, (upon which £1 per share has been paid), on his signing the deed of settlement, and conforming to the regulations of the company.

"J. T. SCOTT,

"THOMAS TISDALL, Provisional Directors.

"FREDERICK EDGELL, Secretary."

The defendant Tancred paid £5 deposit on obtaining the said certificate. The defendant Thompson also, in like manner, applied for and obtained a similar certificate, and paid a deposit thereon. But neither of the defendants. ever signed the deed of settlement, nor was the same signed by any one.

Shortly after the date of the above agreement, viz. on the 19th of July, 1838, the defendants and the said Sir J. D. H. Hay, Sir J. Ross, A. Finlay, C. Campbell, C. Lewis, and C. Hesse, were let into possession of the said premises by the plaintiff under the above agreement, and occupied the same for the purposes of the said banking company.

The defendant Tancred ceased to be a director in January, A. D. 1839. After the defendant Tancred retired, some new directors were appointed.

Exch. of Pleas,

1842.

CHRISTY

v.

TANCRED.

The premises were not delivered up to the plaintiff on the 24th of June, 1839, but continued to be occupied up to the 7th of November, 1839, by the said banking company, of which the defendant Charles Thompson continued up to that time a director. The rent was paid under the above agreement up to the 25th March, 1839.

The plaintiff, on the 21st November, 1839, commenced an action of assumpsit against the above-named defendants, and A. Finlay, C. Campbell, C. Lewis, C. Hesse, and Sir J. D. H. Hay. The plaintiff's particulars stated, that the action was brought to recover the sum of £210, due for half-a-year's rent, from the 25th March, 1839, to the 29th of September in the same year, of certain premises occupied by the defendants, and 57. 11s. 4d. for insurance premiums. The plaintiff recovered a general verdict, and judgment was entered up thereon for £110, in addition to the sum of 110l. 11s. 4d., paid into Court by the defendant Tancred. The judgment in such action was to be referred to, if necessary, and to be considered part of the case, subject to any objection as to its admissibility in

evidence.

Public notice was given, on the 7th of November, A.D. 1839, that the said banking company had stopped payment. On the 7th of December, 1839, Frederick Edgell, who had been secretary to the banking company, tendered to the plaintiff, unconditionally, the key of the premises in question. The plaintiff referred the said F. Edgell to Mr. Murray, his solicitor, and the attorney in the previous action. Mr. Edgell subsequently, on the 9th of December, wrote to Mr. Murray, who, upon the representation of the said F. Edgell that he came from a committee of shareholders of the said banking company, refused to accept the key of the premises, until the said F. Edgell should procure an authority for giving up the same from the defendants and the other parties who, by the articles of agreement, had originally taken the said premises from

1842.

CHRISTY

v.

TANCRED.

the plaintiff. Mr. Edgell then tendered the key uncon- Exch. of Pleas, ditionally to the said Mr. Murray, who then refused to receive it. The defendant Thompson was a member of the said committee of shareholders, and he was one of the persons who authorized the tender of the key, but his name was not mentioned to Mr. Murray. On the 24th December, 1839, the said F. Edgell packed up the key in a parcel, and addressed it to the plaintiff, and sent it to the plaintiff's house by a porter, who left it there on the same day.

The question for the opinion of the Court is, whether the plaintiff is entitled to recover for the use and occupation of the premises from the 29th of September, 1839, to the 30th of November, 1840, or any and what portion of that period. If the Court should be of opinion that the plaintiff was entitled to recover for the whole or any portion of that period, a verdict was to be entered for him, with damages, to be calculated at the rate of 4271. 8s. 6d. a year, for such period as the Court might think him entitled to recover, and costs, 40s. But if the Court should be of opinion that the plaintiff was not entitled to recover from the defendants for any part of the said period, then a nonsuit was to be entered.

R. V. Richards, for the plaintiff.-The defendants are not charged in the character of tenants, but for the use and occupation of the premises: and that they did so occupy, the judgment in the former action against them and other co-defendants (a) is conclusive evidence. In the course of the argument in that case, Parke, B., says-" Suppose there had been no negotiation between the parties, and some of the defendants had continued to occupy, they would all have remained liable. It is their duty, at the end of the term, to give up the tenancy; if by themselves, or by sub

(a) Christy v. Tancred, 7 M. & W. 127.

1842.

CHRISTY

v.

TANCRED.

Exch. of Pleas, tenants, or joint-tenants, they remain in, they are liable as holding over." In the present case, therefore, the question will mainly resolve itself into one of fact, when the possession was given up to the plaintiff. [Parke, B.-Is the judgment in the former action evidence in this? the parties are constituted differently.] There were more defendants in that action than in this, including these two defendants, who therefore are liable to the effect of that judgment. In Blakemore v. Glamorganshire Canal Co. (a), it was held that a verdict recovered for the same cause of action by one of the then plaintiffs, Blakemore, against the same defendants, was evidence for both the plaintiffs in that action. [Parke, B.-If the parties in the former action and in this had been the same, a judgment obtained against the former would be evidence against the latter but there is no authority that a judgment against A. & B. jointly is evidence in an action against A. alone, because it may have proceeded on the admission of B., which might or might not be evidence against A. according to circumstances. In Blakemore v. The Glamorganshire Canal Co., the other plaintiff claimed under Mr. Blakemore.] It is submitted that it is evidence to shew that these two defendants and others paid rent for the premises up to a certain time.

The main point however is, when the possession was given up. The onus of shewing that is upon the tenant. As to the rent from the 29th September to the 7th Dec. 1839, there can be no question. Then the tender of the key on that day, not being shewn to have been made on behalf of these defendants, did not amount to a surrender. The plaintiff had nothing to do with the "committee of shareholders." [Parke, B.-The case does not state in terms that the committee were the persons who carried on the business of the bank on the premises.] Neither

(a) 2 C., M. & R. 133.