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Decisions of the Superior Courts of New South Wales, 1788-1899

Blythe v. Hutchinson (1842) NSW Sel Cas (Dowling) 714; [1842] NSWSupC 65


Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, 10 November 1842

Source: Dowling, Select Cases, Vol. 6, S.R.N.S.W. 2/3464, p. 288

Where a party executes a lease but does not take actual possession of the premises; held that the acceptance of the lease was complete proof of the relationship of landlord and tenant, without entry.*

Replevin for taking the plaintiff's goods. The defendant avowed the taking as a distress for one quarter's rent in arrear for a dwelling house, held and enjoyed by one Isaac Simmons as tenant thereof, to defendant, by virtue of demise therefore made at the yearly rent of £250 payable quarterly. To this avowry the plaintiff pleaded in bar: first, that Isaac Simmons did not hold or enjoy the premises as tenant to defendant under the alleged demise in manner and form. Secondly, that no part of the alleged rent was in arrear from Isaac Simmons to the defendant. Issue on these pleas.

At the trial before Burton J. during the last term it appeared in evidence that whilst the plaintiff was in actual possession of the premises in question, but under what tenure the evidence was silent, and carrying on therein the business of a confectioner, the defendant, Hutchinson, granted a lease thereof to Isaac Simmons for five years from the 1st January 1840 at the yearly rent of £250 payable quarterly. Simmons accepted the lease by executing a counter part thereof, but there was no proof that he entered into the actual possession of the premises. A quarter's rent being due at Christmas 1841 the defendant's bailiff applied to the plaintiff who was in possession for payment, and told him that he called on behalf of the defendant as landlord. The plaintiff said he could not pay it. The bailiff told him he had instructions to take proceedings against him by distress and he replied that he could not help it. He did not say that he had nothing to do with the defendant. He was told by the bailiff that application had been made to Simmons first, or if he had been in the habit of paying the rent and not getting it he was to apply to plaintiff.

The plaintiff not having paid the distress in question was put in and replevied. It was contended on the part of the plaintiff that on the first plea to the defendant's avowry it was necessary for the defendant to prove an actual entry on the premises by Simmons to perfect the tenancy of the latter and that a mere demise by ease would not support the avowry that Simmons held and enjoyed the premises as tenant, so as to justify a distress for rent on the plaintiff, between whom and Simmons there was no consideration or privity. It was proved that the lease to Simmons did not constitute him a tenant to defendant, without proof of an actual entry by him to perfect the tenancy. The learned Judge was of opinion and directed the assessors to find for the plaintiff with one shilling damages and discharged them from finding any verdict on the second issue, that is, whether rent was due from Simmons.

On moving to set aside the verdict and grant a new trial, it was contended that upon the issue raised by the plaintiff's first plea to the avowry there was abundant evidence to prove the defendant's case. The issue on the plea was "whether Simmons did hold or enjoy the premises?" Now as it was proved that Simmons had accepted the lease, by executing a counter part, that was equivalent in law to an entry, even if an entry was necessary. After all, entry was only evidence of an assent to the demise, but here there was an actual acceptance of it by executing a counterpart and there was evidence of Simmons paying rent before the distress on the plainitff's goods.

Dowling C.J. On consideration we think there must be a new trial granted. In determining this case we must confine our attention to the issue raised by the plaintiff's first plea in bar. The plea it is observable is not that Simmons did not "hold and enjoy", but that he did not "hold or enjoy", which does not follow the avowry, which is that Simmons "held and enjoyed". So that as the plea is divisible, the proof that he only held, without enjoyment, would have entitled the defendant to a verdict on that issue.

But without determining the question upon so critical a nicety in the language of the plea and regarding the substance of the issue, that Simmons did not hold and enjoy, it appears to us that the evidence was sufficient to establish the fact that Simmons must be taken to have been the tenant of the defendant's without proof of an actual entry. We are of opinion that the relation of landlord and tenant, with all its liabilities, was created by Simmons' acceptance of the lease, which put it out of his power to say that he was not tenant to the defendant. There is no question raised as to the defendant's title or that he had created a prior lease to the plaintiff or to any other person. It is admitted by agreement for the plaintiff that if Simmons was proved in fact to have entered, the defendant's right to distrain would have been unquestionable. Here then the only question is whether Simmons held and enjoyed?

The acceptance of the lease by executing a counter part is in law complete proof of the relation of landlord and tenant, without entry. The lease proves the tenancy and the acceptance of it is in law an entry. It is assented to by the execution of the counter part and entry is only evidence of an assent, which is more strongly evidenced by the deed. The plaintiff shews no countervailing title and upon the sole issue raised by the first plea there was quite sufficient evidence to sustain the avowry.

This is not like the case of Miller v. Green (1831) [ Miller v. Green (1831) 8 Bing. 92, 131 E.R. 336 ] cited at bar. There the defendant made cognizance in replevin under a power of distress for an annuity granted by one Taylor to Hodgson in September 1806; to which the plaintiff pleaded that in the previous month of May 1806, Taylor, for seising another annuity and in consideration of £3,000, granted, bargained, sold and demised the premises in which the distress was made to one Fletcher for 99 years and it was held that this plea was no bar without alleging entry by Fletcher, or that Fletcher elected that the deed would ensure by way of bargain and sale. There the Court on the authority of E. Coke, The first part of the Institutes of the laws of England, London, 1794, Vol. 3, ch. 8, s. 459; M. Bacon, A new Abridgement of the Law, 7th ed., London, 1832, Title Lease, Vol. 4, observed that the necessity of an entry by the lessee, in order that the estate may vest in him, is put on the ground that it is an acceptance by him of the estate. On those authorities they held that as the plaintiff neither alleged an entry by Fletcher under the lease, nor shewed by any privity between his possession and Fletcher's term not anything equivalent to an entry, such as an acceptance of the estate by the execution of the lease, no estate passed to Fletcher under the lease of May. Consequently the estate remained in the lessor and the grant of the annuity and the power of distress to Hodgson by the indenture of September was a grant capable of taking effect.

That case alone is a sufficient authority for saying that the acceptance of a lease is tantamount to an entry. Now here the term is out of Hutchinson to Simmons, by the lease, which has been actually accepted and which being equivalent to an entry, clearly establishes the relation of landlord and tenant and is a complete answer to the plaintiff's plea in bar. It may be true, that a lessee before entry has only an interest interesse termini, grantable to another, but as an acceptance of the estate by the execution of the lease is regarded as equivalent to entry, it follows as a consequence that the estate is out of the lessor for the term and the lessee may in law be said to hold and enjoy. We have had under consideration the cases of Williams v. Bosanquet (1819) [Williams v. Bosanquet (1819) 1 Br. & B. 238], Cook v. Harris (1698) [Cook v. Harris (1698) 1 Raym. Ld. 367, 91 E.R. 1142 ] and Bellasis v. Burbrick (1696) [ Bellasis v. Burbrick (1696) 1 Salk. 209, 91 E.R. 187].

If Simmons held nothing but a bare lease, which would only give him a right to enter, technically called interesse termini, he could only be a complete tenant for the term when he entered. But all the authorities go to shew that by accepting the lease, that is equivalent to an entry. It appears to us therefore that there ought to be a new trial granted.

Published by the Division of Law, Macquarie University