1833. Saturday, ditioned for the payment of money at a given day, and interest in the mean time, with a stipulation that on any default in paying the interest, the whole sum should be de JAMES against THOMAS and Another. On a bond with THE plaintiff brought an action of debt on a bond in a penalty, conthe penal sum of 560l., conditioned for the payment of 2801., in three years from the date of the bond, with 5 per cent. interest payable half yearly; " and also that the said plaintiff should be at liberty to call in and demand payment of the said principal money and all interest thereon, in default of the payment of the said interest half-yearly." The declaration stated, that one year's interest being due and unpaid, the plaintiff demanded the principal and all interest thereon, but the defendants did not pay; whereby the bond became forfeited. The particular of demand stated the action to be brought to recover the principal sum of 280l., and interest as above, from the date of the bond to the day of payment therein mentioned. mandable; the obligee, on the interest falling into arrear, brought an action to re cover the whole principal and interest: Held, that the case was not within 8 & 9 W. 3. c. 11. s. 8., and, therefore, that the plaintiff was entitled after verdict, to and execution for the whole principal sum, and not merely E. V. Williams now moved for a rule to shew cause why, upon payment of the year's interest above menhave judgment tioned, all further proceedings should not be stayed; and he cited Masfen v. Touchet (a), where the obligee of a bond conditioned to pay 6007. and interest, in three years from the date of the bond, by instalments of 157. half-yearly, and 615l. at the end of the term, brought an action, on default made in paying the interest, and recovered for the whole penalty; and the Court ordered judgment to be entered for the whole, with stay of exe for the arrears of interest. (a) 2 W. Bla. 706. cution on payment of the interest due. [Parke J. The condition there was different. Here it is, that on any default of payment the whole sum shall be due.] It is the same, virtually, on any bond with a penalty. [Patteson J. The judgment on an ordinary bond would be for the penalty; but then the defendant would be relieved by 8 & 9 W. 3. c. 11. s. 8., on paying the arrears found due upon trial or enquiry. Parke J. In the case cited the same end was attained, only by a shorter course.] It is not clear, in this case, that the plaintiff ought not to assign breaches, according to the statute, to entitle himself under the condition; and then he would gain no more than he may by what is now proposed. [Parke J. Yes; by the special agreement embodied in the condition, he would recover 280l. and interest. Littledale J. This is like the case of a warrant of attorney, where the Court never holds a party entitled to relief under the statute.] Per Curiam. There must be no rule. Rule refused. 1839. JAMES against THOMAS. The cause was tried at the ensuing Summer assizes for Glamorganshire before Bosanquet J., and a verdict was found for the plaintiff for Is., but leave given to the defendant to move that a verdict should be entered for such sum as the Court should think fit. In Michaelmas term (Nov. 6th), E. V. Williams moved that a verdict should be entered upon the record for 201., the actual arrear of interest, and no more, as in actions upon bonds with a penalty, 1833. JAMES against THOMAS. penalty, within 8 & 9 W. 3. c. 11. s. 8., and the plaintiff be at liberty to levy for that amount only, the judgment standing as a security in case of future breaches. He contended that the case was, substantially, within the statute, the provision that, in default of paying the interest, the whole sum should become due, being in the nature of a secondary penalty. It is as if an annuity had been granted, with a fixed sum to become due on default in any of the payments. That sum would be merely a penalty to secure the payments. [Parke J. You would represent this as a bond with two penalties. The effect of the provision here is, that on any default the 2801. becomes payable as the debt; it is not a mere penal sum to secure the interest.] The intention of the statute of William was to prevent the necessity of going into a court of equity. That reason applies to the present case. A court of equity would relieve the defendant. [Parke J. I question whether it would.] The Court (a) refused a rule. (a) Denman C. J., Parke, Taunton, and Patteson Js. 1833. DOE dem. ROBERT SMITH, WILLIAM CLEEVE, Saturday, EJECTMENT. At the trial before Gurney B., at the name of Blenheim or Woodstock Park, situate and being in the county of Oxford, and now in the occupation of one Richard Smallbones, in a direct line across the said park from the gate called Old Woodstock Lodge, (following the words of the inquisition,) lying on the north-west side of the said line, (setting out the other abuttals in the words of the inquisition,) together with the farm houses, and other houses, &c. belonging or appertaining to the said premises, and which now are in the occupation of the said R. S., except and always reserved unto Under a lease of the park of all that part called B., situate and being in the and now in the county of O., occupation of certain spe cified abut. cals, with all houses, &c. belonging thereto, and which now are in the occupation of S., a house on a part which is within the abuttals, but not in the occupation of S., will pass. 1833. Dor dem. SMITH against GALLOWAY. unto the said W. Marsh, J. H. Stracey, and M. Stewart, their executors, administrators, and assigns, all mines and quarries of stone, timber, and other trees whatsoever (with a like exception and reservation of hedges, of a right of hunting, shooting, fishing, and fowling, and of the liberty of keeping a herd of deer in the park, and depasturing three heads of cattle there). Since the execution of this deed, Marsh, Stracey, and Stewart had become bankrupts, and all their property had been regularly assigned before the action was brought; the plaintiff, therefore, relied upon the lease to Smith, Cleeve, and Southam. The premises claimed were within the line and abuttals set out in the inquisition and lease: but the defendant had occupied them, by the permission of the original owner, up to the time of the inquisition, without paying any rent, no demise having been made to her. Smallbones had also suffered her to occupy them in the same way during the whole time. of his tenancy; and she had continued in a similar occupation up to the time of the action brought. It was now insisted for her, that the premises, not having been in the occupation of Smallbones, did not pass by the lease. The learned Judge directed the jury to find a verdict for the plaintiff, reserving leave to the defendant to move to enter a nonsuit. The defendant obtained a rule to that effect in Michaelmas term, 1832. Talfourd Serjt. and Walesby now shewed cause. There can be no doubt that the intention of the parties to the lease of the 22d of June 1824, was that all which the lessors held by the elegit should pass; and the words of the demise are sufficient to carry that into effect. |