1861.

HUTCHINSON

บ.

BARROW.

tion, the land measures 20 a. 3 r. 31 p.; and excluding the close in question and the Potato Patch it measures 20 a. Or. 36 p. The road used by the testator to the Potato Patch is shewn on the plan marked yellow; and after he took the close in question into his own occupation in the Spring of 1856, he used the same road to enter this close at the gate F.

The testator died on the 4th June, 1856. The words of the devise are as follows:-"I give and devise all that my messuage or dwelling-house, with the buildings and lands belonging thereto, now occupied by me, situate at Welham aforesaid (containing about twenty acres), together with the close of land called The Hall Close (containing about fourteen acres and a half), now occupied by Edward Wright as tenant thereof, and also the three cottages and garden cottage at Welham aforesaid (except as to the cottage now occupied by my servant Francis Brown, being one of the above three cottages, with the orchard and piece of ground behind and adjoining thereto, containing about one acre and a half, which I hereby give and devise to the said Francis Brown and to Sarah his wife successively during their lives, after the decease of my wife Mary Billyard Hutchinson and subject to such estates for life) unto and to the use of my said wife, her heirs and assigns for ever."

It was contended on behalf of the defendant, first, that the close in question passed to the testator's wife, upon the true construction of the devise, independent of the Statute of Wills, 7 Wm. 4 & 1 Vict. c. 26, and if not, then, secondly, that it passed by virtue of that statute.

We think it clear that the first proposition cannot be maintained. The lands to pass by the devise are lands belonging to the messuage or dwelling-house with the buildings "now" (which before the statute undoubtedly meant at the time of the making the will) occupied by the

HILARY VACATION, 24 VICT.

testator. The close in question answers no part of this description. It did not belong to the messuage or dwellinghouse and buildings of the testator, it belonged to the farm of the tenant who was then in the occupation and possession of it. Nor was it occupied by the testator.

Secondly, it was contended that by virtue of the 24th section of the statute it passed to the testator's wife. That section enacts that every will shall be so construed, with reference to both real and personal estate, to speak and take effect as if it had been executed immediately before the death of the testator unless a contrary intention shall appear by the will. In our opinion a contrary intention does appear by this will. We think it was the intention of the testator, as expressed in this devise, to state his will to be, that the lands to be taken by his wife were as described by the then existing state of circumstances, and that the word "now" merely expresses the date as if he had said, "On the 10th of April, 1854."

In Jarman on Wills, vol. 1, p. 261, to which we were referred in the argument, the operation of the statute is discussed with great learning and ability. There is a case there referred to, Cole v. Scott (a), in which "now" is considered by Lord Chancellor Cottenham to mean the date of the will, and on considering the words of this will it is to us clear that "now" is to be read as if, instead thereof, the testator had put the actual date, and we think there is nothing in the will which will enable us to add the property in dispute to the house which is undoubtedly the subject of the devise.

Judgment for the plaintiff.

(a) 16 Sim. 259; 1 Mac. & G. 518.

1861.

HUTCHINSON

v.

BARROW.

1861.

Feb. 25.

WALKER v. GodÈ.

In ejectment THIS was an action of ejectment to recover possession

the plaintiff
proved that
S. was the
tenant of the
premises when
he became

the owner, and

to him for many
years; that
she quitted
and was suc-

ceeded by H.;

that N. suc

In

ceeded H. and paid rent. the beginning of September 1858, the defendant and N. severally called on the plaintiff and asked if he would accept the

of a public house called "The Shovel."

At the trial, before Martin, B., at the Middlesex sittings in Michaelmas Term, the plaintiff proved that one Mary had paid rent Staples was tenant of "The Shovel" at the time when he became owner of it, and had paid rent to him for fifteen or sixteen years. One Humphreys succeeded her. Newman succeeded Humphreys, and paid rent to the plaintiff. About the end of September, 1858, the defendant called on the plaintiff and asked the plaintiff if he would accept him as tenant. The plaintiff said he had no objection. Newman afterwards called on the plaintiff and asked him if he would take the defendant as tenant. The plaintiff said he would, at the same rent which Newman had given. defendant On the 7th of September the defendant took possession of the premises. On the 19th of October the plaintiff received from the defendant a quarter's rent, due at Michaelmas, and gave a receipt for it as for rent due from Newman. The plaintiff received the rent due at Christmas, 1858, and October of the gave the defendant a receipt for it. On the 24th of March, 1859, the plaintiff gave the defendant notice to quit at to Michaelmas Michaelmas, 1859, "provided your tenancy originally commenced at that time of the year, or otherwise &c. at

as tenant. On

each occasion the plaintiff said he would.

On the 7th

of September

the defendant took possession, and in

same year

paid the rent

1858, for which

the plaintiff gave a receipt as for rent due from N. The plaintiff received the rent at Christmas 1858, and gave a receipt for it to the defendant as for rent due from him. In March, 1859, the plaintiff gave to the defendant notice to quit at Michaelmas or otherwise at the end of the year of the tenancy which should expire after the end of one half year from the time of his being served with that notice. On the 17th of December, 1859, the plaintiff's agent served a notice on the defendant to quit at Midsummer. The defendant said the plaintiff might have the house if he paid the valuation of the fixtures and goodwill.-Held, that it was a question for the jury, and not for the Judge, to be determined by a consideration of all the facts, at what time the tenancy commenced; that there was evidence of a tenancy ending at Michaelmas, and that it was a misdirection to withdraw from the jury all the facts, except the conduct of the defendant when the notice to quit at Midsummer was served on him. Martin, B., dissentiente.

the end of the year of your tenancy which shall expire after the end of one half year from the time of your being served with this notice." The plaintiff, however, continued to receive rent until Midsummer, 1860. One Richards, a witness, proved that on the 17th of December, 1859, he served a notice, signed by the plaintiff, requiring the defendant to quit the premises at Midsummer, 1860, when the defendant said that the plaintiff might have the house if he paid him the valuation of the fixtures and goodwill. The defendant and his witnesses proved that the defendant had paid about 300l. to Newman for the goodwill and fixtures, and that he told the plaintiff of this arrangement and asked him for an agreement for a term of years. The plaintiff would not grant a lease, but told the defendant that if he paid his rent regularly he would not disturb him during his life. At the conclusion of the defendant's case his counsel insisted that the tenancy was shewn to have begun at Michaelmas, 1858, or a few days before.

The learned Judge told the jury that the case depended on the evidence of Richards; that there was nothing to shake it in any way; and that the only question was whether the jury, from the defendant's conversation with Richards, would infer that the tenancy began at Midsummer. The jury having found a verdict for the plaintiff,

Huddleston, in Hilary Term (Jan. 12), obtained a rule nisi for a new trial, on the ground that the learned Judge misdirected the jury in telling them that the case depended only on the evidence of Richards, and that there was nothing in the defendant's evidence to alter that, and that there was evidence to shew that the tenancy expired at Michaelmas.

Day shewed cause in the same Term (Jan. 24).—The

1861.

WALKER

v.

GODE.

1861.

WALKER

v.

GODE.

only material evidence was that on the 17th of December the plaintiff gave the defendant notice to quit the premises at Midsummer. The defendant said, in effect, "I will go out if Mr. Walker pays me the money I paid to Newman." This was evidence which the jury might treat as an admission that the tenancy had been determined by the notice: Doe d. Baker v. Woombwell (a). [Wilde, B.-The rule was not granted on the ground that the language of the defendant when served with the notice was not evidence to that effect. Martin, B., referred to Doe d. Clarges v. Forster (b).]

Huddleston, in support of the rule.-Where a tenant from year to year quits the premises in the middle of a quarter, and another comes in, if the incoming tenant pays the rent up to quarter day, the rule is that the tenancy is considered to commence from the day up to which he pays the rent: Doe d. Holcomb v. Johnson (c). Upon that principle, the defendant's tenancy must be taken to have commenced at Michaelmas, and therefore not to have been duly determined by a notice to quit expiring at Midsummer. Though the defendant may not have objected to the 'insufficiency of the notice to quit at the time he received it, his omission to do so did not preclude him from objecting to its insufficiency at the trial: Oakapple d. Green v. Copous (d). It was a question of fact, which should have been left to the jury, whether there was a new taking when Newman gave up possession and the defendant came in. Cur. adv. vult.

The learned Judges differing in opinion, the following judgments were now delivered.