In the examination of a witness sent with an order of removal, he stated that he had hired the pauper's husband for a year in 1813, and that he served during that year. The appellants, in their notice of appeal, denied the hiring and service, as alleged in the examination. At the sessions, the witness stated that this occurred in 1810, whereupon, the Sessions quashed the order :-The Court refused a mandamus to hear the appeal, because it had already been decided.

Semble-That the decision of the Sessions was right.

Use and Occupation, where maintainable -What an Agreement for a Lease.

By an agreement between H. and E, H. agreed to execute unto E. a lease of all, &c., situate at, &c., to hold to the said E., his executors and assigns, for the term of seven years, from the 24th of June next, under the yearly rent of 1051., payable half-yearly, the first half-yearly payment to be made at the 25th of December next; and it was agreed that the lease should contain covenants for payment of rent and for repair, with a proviso for re-entry; and E. agreed to accept such lease upon such terms, and to execute a counterpart; and he agreed, on a certain event, to pay an additional rent of 151. during the remainder of the term. H. agreed to make certain alterations, and it was agreed that by the lease the rent therein reserved should be 120l., but that by a separate deed, H. should release 15l. a year. E. was to prepare the lease at his own expense, to be approved of by the lessor's solicitor. It was also agreed, that H. might have the option of making the lease fourteen years-Held, that this was an agreement for a lease only, and not a lease.

After the agreement was executed, H. mortgaged in fee, and having become bankrupt, the mortgagee gave notice to E, and demanded the payment of the rent, which was refused:-Held, that he could maintain an action for use and occupation.

Assumpsit for use and occupation.
Plea-The general issue.

At the trial, before Littledale, J. at the last Sussex Assizes, it appeared that the defendant took certain premises at St. Leonard's, Sussex, from one B. Homan, under the following agreement, dated the 28th of April 1835:

"The said B. Homan agrees to make and execute unto the said C. Eicke, a good and valid lease of all that messuage or tenement and dwelling-house, situate on the Marina, St. Leonard's, and numbered 67, together with all cellars, watercourses, easements, and appurtenances thereunto belonging, to hold to the said C. Eicke, his executors and assigns, for the term of seven years, from the 24th of June next, at and

D

under the yearly rent of 105l., clear of all taxes and assessments, except the land tax, payable half-yearly, the first half-yearly payment to be made on the 25th of December next. And it is hereby agreed, that the said lease shall contain a covenant on the part of the said C. Eicke to pay the said rent, also to keep the said premises in repair (damages by fire excepted), also a proviso for re-entry on non-payment of the said rent by the space of twenty-one days after the same shall become due, or on non-performance of any of the covenants on the lessee's part to be performed; and the said C. Eicke agrees to accept of such lease as aforesaid, upon the terms and conditions above specified, and to execute a counterpart thereof; and the said C. Eicke further agrees (when and so soon as the messuages or dwelling-houses on either side of the said messuages, hereby agreed to be demised, shall become tenanted and occupied), to pay to the said B. Homan an additional yearly rent of 157. during the remainder which shall be thenceforth then to come of the said term of seven years. And the said B. Homan

agrees, on or before the 24th of June next, to make certain alterations and additions. And it is hereby agreed, that by the said lease hereby agreed to be granted, the rent therein reserved shall be 1207.; and that by a separate deed to bear date the day next after the said indenture of lease, the said B. Homan shall release to the said C. Eicke, out of the said annual rent of 120l., the annual sum of 15l. Witness our hands. The said C. Eicke to prepare lease at his own expense, to be approved of by lessor's solicitor.

A

The defendant declined doing so, and this action was brought to recover the halfyear's rent due at Christmas, 1836. year's rent had been paid by the defendant to Homan. The document was signed with an agreement stamp. It was objected that this was a lease, and not an agreement; and therefore the stamp was insufficient, or, if it were an agreement, that it was not assignable; that there was no privity of contract between the plaintiff and the defendant, and the action was not maintainable. The learned Judge refused to nonsuit, but reserved the point. plaintiff having recovered a verdictPlatt, on a former day in this term, moved accordingly, upon the two objections

taken at the trial.

And now

The

Cur. adv. vult.

LORD DENMAN, C.J. said-We have inquired of Mr. Justice Littledale as to this case, and are of opinion that the instrument in question was properly received in evidence. The stamp upon it was correct, as it was an agreement for a lease. Then the objection raised in that alternative cannot avail, because the landlord had parted with his property, and the new proprietor had a right to sue the actual occupier in use and occupation. The rule therefore must be

1837. Nov. 8.

Refused.

BRICKHILL v. SIR SAMUEL
HULSE, BART.

Sheriff-Evidence-Admissions by Agent.

In an action against the sheriff, for taking the plaintiff's goods, an affidavit made by his officer on an interpleader application, is admissible in evidence, to prove both his agency and his declarations.

Trover against the late sheriff of Hampshire, for converting the plaintiff's goods. Plea-Payment into court of 201., and no damages ultra. Issue thereon.

At the trial, before Tindal, C.J., at the last Hampshire Assizes, it appeared, that the sheriff had taken possession of the goods of one Wyatt, under certain executions, when the plaintiff came forward and

claimed the property under a prior bill of sale. One Wade paid the amount of these levies, and the sheriff withdrew from the possession. The plaintiff sued the sheriff for taking those goods, and that action was stayed on an application under the Interpleader Act, to abide the event of an issue between the plaintiff and Wade. In that issue the plaintiff succeeded, and recovered the goods which remained, but as they were insufficient to satisfy his demand, he continued this action against the sheriff, alleging, that through the connivance of the sheriff's officer, a great part of Wyatt's goods had been abstracted from the premises while he was in possession. To connect the sheriff's officer with the defendant, an affidavit made by him, and used on behalf of the sheriff on the interpleader application, was offered in evidence and objected to, but was received by the learned Judge. The plaintiff recovered a verdict, with 1001. damages.

Erle now moved for a rule to set that verdict aside, and for a new trial, on the ground that the evidence had been improperly received. The affidavit in question was similar to depositions made in Chancery, on an application for an injunction, which cannot be used by a stranger against one of the parties to that suitRushworth v. the Countess of Pembroke (1), 1 Phillipps on Evidence, p. 366. So, the evidence of a witness cannot afterwards be used in a different suit, as an admission by the party who called him. Here, the present action is distinct from the application made by the sheriff. The affidavit in question was given in evidence, for the purpose of making out that the officer was the sheriff's agent, and then letting in his declarations; but the agency ought to have been proved aliunde. He was alive, and might have been called.

LORD DENMAN, C.J.-It is desirable, that in cases of this kind, which are of frequent occurrence, there should be no doubt. It seems to me, that a statement of a party, produced by another for his benefit, is afterwards evidence against the party so producing it. At first sight, the case of Rushworth v. the Countess of Pem

(1) Hard. 472.

broke appears-(and it is the only case which does so appear) to be opposed to this doctrine; but the answer to it is found in the nature of the proceedings. That was a deposition. Now, a party who uses a deposition, does not know beforehand what is in it; he refers to the witness, in the belief that he can state something on his behalf: the actual deposition is unknown until it is produced and read in court. The case of a witness examined in court is similar. The party who calls him cannot know what he will say. But it is quite a different case where a party produces an affidavit, the contents of which he must be fully aware of before he uses it. The principle, therefore, which I stated, is not interfered with by the case in Hardres.

PATTESON, J.-We must take it, that the application made to this Court, was made by the defendant. But even if it were made by his officer, still they are identified in interest. Then, the sheriff produced this affidavit, and relied upon it as a statement, authorized by him, containing certain facts. It was produced for his own purposes, and may be used against him.

WILLIAMS, J.-This is precisely the same thing as a statement by the sheriff himself, and what he had said would of course be evidence. He makes an application to the Court, and whether that would be of any avail to him or not, is immaterial, but it was necessary for him to have the state of facts ascertained. The officer makes a statement with a view of furthering that application, and it is of no consequence that it is on oath. If available as a statement, it is equally so as an affidavit. In effect, it was a statement by the sheriff used by him.

COLERIDGE, J.-There is no difficulty in regard to the principle on which this case depends. The only doubt arises on the case in Hardres. But the facts of the two cases are different. The sheriff makes an application to the Court, and uses the statement of his officer. He must be taken to have known what was contained in it. It is afterwards produced against him. It was then open to the remark, that it had been made for a particular purpose; but still it is evidence. What is the case of a deposition? It is the testimony of a witness in a court of law. Can it be said, that

by calling a witness in a court of law, a man makes all his declarations evidence, as his admissions against himself? Certainly not. So it is in a court of equity, where the witness is examined by a public officer. It can never be said, that, because a party afterwards uses the depositions so made, he is to be bound by the admissions of the witness. One, therefore, is the case of a witness sworn to give testimony; the other, is the production of a statement by a party for his own benefit.

The COURT took time to consider whether a rule should be granted, on the ground that the verdict was against the evidence; and, ultimately

Rule refused.

1837. THE QUEEN V. THE INHABINov. 8. TANTS OF CHURCH KNOWLE. Poor Law-Notice of Appeal-Evidence -Order of Removal quashed.

It was found, in a case stated by the Sessions, that a notice of appeal had been given, signed by four churchwardens and four overseers, described as the churchwardens and overseers of the parish of St. M, and that afterwards a statement of the grounds of appeal was delivered, signed by two churchwardens and two overseers of the said parish: -Held, that the appellants were not estopped from shewing that there were not more than four parish officers, and that the Court would not presume that they did not establish that fact.

On an appeal, the respondents, finding a supposed defect in the examination of the pauper, without communicating their motives to the Court or to the appellants, quashed their own order, with the consent of the latter: --Held, that on a subsequent removal to the same parish, this quashed order was conclusive as to the settlement up to that date.

An examination stated that the pauper gained a settlement in the parish of St. M. by a hiring and service, but did not state as a fact that he resided therein:-Held, per Lord Denman, C.J., that this examination was sufficient.

[For the report of the above case, see 7 Law J. Rep. (N.S.) M.C. p. 4.]

Plea of Set-off-Award, Setting aside.

A plea of set-off is not divisible: the defendant by it alleges a demand exceeding or equal to the plaintiff's claim, and if he do not prove that, fails on the whole of the plea.

If he prove a part of his set-off, that may be taken in reduction of damages.

To a declaration for goods sold and delivered, work and labour, money paid, and on an account stated, the defendant pleaded as to all, except 102l. 2s. 9d., non assumpsit, a set-off for 100l. for money had and received to defendant's use, and on an account stated, and payment into court of 1021. 2s. 9d. The plaintiff replied nil debet to the set-off, and damages ultra. The cause and all matters in difference were referred to an arbitrator, who awarded that the verdict should be entered on both the issues joined between the parties, so far as the same applied to the several counts of the declaration, except the count for money paid for the plaintiff, and so far as the same applied to that count for the defendant; and he assessed the plaintiff's damages on the issues found for him, at 191.5s. Id. :-Held, that the arbitrator was wrong in finding the issue on the set-off for the defendant on the third count, as it was pleaded to the whole declaration, and could not be divided. But as such finding was in favour of the defendant, the Court refused to set aside the award at his instance, and had no power to correct it, so as to prevent the plaintiff from paying the costs of the issue found for the defendant.

Where a cause and all matters in difference are referred at Nisi Prius, a motion to set aside the award may be made, though four days have elapsed in term after its publication.

The plaintiff declared in assumpsit for goods sold and delivered, for work and labour, for money paid, and on an account stated.

Pleas-First, as to all except 1027. 2s. 9d., non assumpsit. Second, a set-off of 1007. for money had and received by the plaintiff to the defendant's use, and on an account stated. Third, as to the said sum of 1021. 2s. 9d., payment into court, and

no damages ultra. The plaintiff replied nil debet to the plea of set-off, and to the last plea replied damages ultra. The cause and all matters in difference were referred to a barrister, by an order of Nisi Prius, a verdict having been taken for the plaintiff, damages 2007., the defendant being at liberty to object to any charges in bills already paid. The costs of the cause were to abide the event. The arbitrator, by his award, published April 27, 1837, awarded that the verdict should be entered on both the issues joined between the parties, so far as the same applied to the several counts of the declaration, except the count for money paid, for the plaintiff, and so far as the same applied to the count for money paid, for the defendant; and he assessed the plaintiff's damages on the issues found for him, at the sum of 191. 5s. 1d., and directed that the damages found for him by the jury, should be reduced to that sum; and he awarded that neither of the parties had any claim against the other, for or in respect of any matters in difference between them. The award was taken up by the plaintiff, and a copy served upon the defendant on the 28th. On the 6th of May following,

The Attorney General obtained a rule nisi for setting aside this award, on the ground that it was uncertain and inconsistent; against which, cause was shewn in Trinity term, by

Cresswell and Swann.-It is objected to this award, that the finding is inconsistent and uncertain, but there is a preliminary point: the defendant is now too late to object to the award. It was a reference of a cause at Nisi Prius, and the application ought to have been made within four days of the term next after the making of the award-Borrowdale v. Hitchener (1), Thompson v. Jennings (2), Rawsthorn v. Arnold (3), and Lang v. Sutton (4).

[LITTLEDALE, J.-That has not always been the practice.]

It is true, that in Proudlock v. Allenby (5), where a cause and all matters in difference had been referred, Coleridge, J.

(1) 3 Bos. & Pul. 244.

(2) 11 Mo. 110; s. c. 3 Law J. Rep. C.P. 80. (3) 6 B. & C. 629; s. c. 5 Law J. Rep. K.B. 270.

(4) 5 Dowl. P.C. 39. (5) 4 Dowl. P.C. 54.

entertained an application to set aside an award after the expiration of that time; but he appears to have proceeded upon the peculiar circumstances of the case. But if this be not an answer, still the award itself is good. It is said, that as the arbitrator has awarded a verdict for the defendant as to one count, he must have found that there was a set-off in respect of that count, and consequently the award is imperfect, in not finding what was due to the defendant on the set-off. If he meant that there was no set-off at all, then he ought not to have excepted the count for money paid, and directed that the verdict should be entered for the defendant, on the issues applicable to the count for money paid. But the award is sufficiently intelligible, to enable the Court to give effect to it. The meaning, unquestionably, is a general finding for the plaintiff, the arbitrator having excepted the count for money paid, in order that the defendant might obtain his costs on that count. The pleas, though pleaded to the whole declaration, aise separate issues on each count. If, therefore, the plea of the general issue to the count for money paid, be found against the plaintiff, that count is disposed of; and it cannot be necessary to consider the plea of set-off as pleaded thereto. If pleaded separately, the plaintiff might have entered a nolle prosequi to that count. That is the effect of the award. It was urged, that there was no finding of any amount of the set-off due to the defendant; but it must be taken, that either there was no set-off, or else that it has been allowed in the balance found for the plaintiff.

The Attorney General and Peacock, contrà. As to the preliminary objection, it cannot be supported.

[LORD DENMAN, C.J.-This is a reference of all matters in difference. The application is in time.]

Certainly; and in Hayward v. Phillips (6) that distinction was taken.

[LITTLEDALE, J.-I have great doubt whether there is any such restriction in the case where a cause only is referred, because a party may not know of the award within the time.]