1831. COURT OF COMMON PLEAS. Second Sitting at Westminster, in Hilary Term, 1831. BEFORE MR. JUSTICE GASELEE. Jun. 19th. by which A. agrees to "let" premises to B., "on lease" for a certain term, at a certain rent, holds," and "to keep the said stipulations in every respect until the said lease shall be granted, which WILSON V. CHISHOLM, An agreement, USE and occupation, on the following agreement:— "Memorandum of agreement, made the 1st day of March, 1826, between John Wilson, of &c., and Thomas Chisholm, of &c. Witnesseth, that the said John Wilson "subject to the doth hereby agree to let the house, No. 17, Guildford stipulations and Street East &c., to the said Thomas Chisholm, on lease, covenants in the original lease, for the term of seven years from Lady-day next, at the under which he net rent of 451. per annum, payable quarterly, free and clear of and from all taxes and rates whatsoever, and subject to all the stipulations and covenants that are contained in the original lease, by which the said John Wilson lease, when re- holds the said house and premises, and to keep the said quired by B., is stipulations, in every respect, until the said lease shall be granted, which lease, when required by the said Thomas Chisholm, shall be prepared by the solicitor of the said John Wilson, but at the costs and charges of the said Thomas Chisholm. To all the before-mentioned terms and conditions, the said Thomas Chisholm hereby agrees. In witness &c." There was a memorandum at the foot of the agreement, commencing—" Mr. Wilson to lay on the water, &c." The original lease referred to in the agreement was put in and read. to be prepared by" A.'s solici tor, but at B.'s expense is a lease, and not only an agreement for one. Storks, Serjt., for the defendant.-This instrument is not a lease, but merely an agreement for one. It is an agreement to let on lease for a term of seven years, if the defendant chooses to require it; for the words are"which lease, when required by the said Thomas Chisholm, shall be prepared &c." It is for him to say whether he will have a lease or not; and, if he does not choose to have one, the agreement merely creates a tenancy from year to year. And if the tenancy is of that description, I shall shew that it has been put an end to by a notice given before Michaelmas, 1829, to quit at Lady-day, 1830. I shall also further prove, that the key of the house was sent to the plaintiff, and that he put up a bill, for the purpose of letting it, which, I submit, will amount to evidence of a surrender. The cases of Goodtitle d. Estrick v. Wray (a), Whitehead v. Clifford (b), Thomas v. Cook (c), and Wright v. Trevezant (d), are in favour of (a) 1 T. R. 735. "Words of present contract, with an agreement that the lessee should take possession immediately, and that a lease should be executed in future, operate only as an agreement for a lease, and not as a lease itself." (b) 5 Taunt. 518. "If a landlord, in the middle of a quarter, accept from his tenant the key of the house demised, under a parol agreement, that, upon her then giving up the possession, the rent shall cease, and she never afterwards occupy the premises, he cannot recover in an action for the use and occupation of the house for the time subsequent to his accepting the key." 66 (c) 2 B. & A. 119, and 2 Stark. 408, A., being tenant from year to year, underlet the premises to B., and the original landlord, with the assent of A., accepted B. as his tenant, but there was no surrender in writing of (d) Vol. 3 of these Reports, p. 441. 1831. WILSON v. CHISHOLM. 1831. WILSON บ. CHISHOLM the defendant; and though Poole v. Bentley (e) may appear to be in some respects against him, yet that case was decided upon its own peculiar circumstances, and was not intended, as the Court expressly said, to shake the cases which had been previously decided. GASELEE, J.-I will take your facts. I think it is a lease. It appeared that the notice to quit was not served on the plaintiff himself, but left at his house, with a female servant. The key was taken by the plaintiff, on an understanding that the house should be let for the benefit of whoever might be entitled, according as it should turn out, in point of law, that the agreement amounted to a lease or created a tenancy from year to year only. A bill also was put up by the plaintiff, for the purpose of letting the house. GASELEE, J.—As to the notice to quit, it seems that it was not delivered to the plaintiff himself; if it had been, and he had received it without saying any thing, it might have operated against him. But that was not the case, and he might treat it as altogether a nullity. With re January, &c. is a lease, and not (e) 12 East, 168, and 2 Camp. other agreed to take land for sixty-one years, at a certain rent, for building, and the tenant agreed to lay out 2000l., within four years, in building five or more houses; and, when five houses were covered in, the landlord agreed to grant a lease or leases, which might be for the more convenient underletting an assignment of the leases; but that agreement was to be considered binding, till one, fully prepared, could be produced -the instrument was held to operate as a present lease." spect to the putting up of a bill, for the purpose of letting the house, it will be for the Jury to say, whether that was not done in pursuance of the understanding upon which the key was accepted; and, if so, it will not be an answer to the action. I think, upon the whole, that the plaintiff is entitled to a verdict. Verdict for the plaintiff-227. 10s., being Merewether, Serjt., and Busby, for the plaintiff. Storks, Serjt., for the defendant. [Attornies-W. S. Wilson, and Swan.] 1831. WILSON บ. CHISHOLM. Third Sitting at Westminster in Hilary Term, 1831. BEFORE MR. JUSTICE GASELEE. STOCKEN v. CARTER. THE plaintiff, in his declaration, complained that the defendant, on the 21st of July, 1830, seized him by the collar, and struck him several blows, and pushed him along on the king's highway, &c. Plea-Not guilty. On the part of the plaintiff, two witnesses were called, from whose evidence it appeared, that, on the day named in the declaration, between 11 and 12 in the morning, a crowd of persons were assembled in front of Apsley-house, the residence of the Duke of Wellington, in expectation Jan. 26th. A police constafed under the stat. 10 Geo. 4, ble is not justi c. 44, s. 7, in laying hold of, pushing along the highway, and ordering to be off, a person found by him conversing in a crowd merely because with another, the person with whom he hap pens to be conversing, is known to be a reputed thief. of the arrival of his Majesty, who, it was understood, was going to visit him; that the plaintiff, who, according to their account, had the appearance of a respectable tradesman, was among the spectators; that the defendant, who was an inspector of police, called out" Ladies and gentlemen, take care of your pockets, you've got pickpockets and thieves here among you;" and immediately pushed the plaintiff with his hand, saying "You had better be off;" that the plaintiff remonstrated, and said that he was not a thief or a pickpocket; but that the defendant kept pushing him repeatedly, and telling him to be off; that the plaintiff told him his name, and where he lived, to which the defendant replied "I know you well, I know what you are, and where you live. You had better be off, or I'll put you somewhere, which you wont like;" all the time keeping his hand on his collar; and that, at last, he gave him a violent push into the road. On their cross-examination, they admitted that the plaintiff was, at the time the defendant spoke to him, in conversation with a man, who, on hearing what the defendant said, immediately went away. It appeared, that, in fact, the plaintiff was, as he told the defendant, a furnishing undertaker, residing at Knightsbridge. On the part of the defendant, six police constables, and two other witnesses, were called, who swore, that the defendant did not touch the plaintiff at all; and Mr. Mayne, one of the police commissioners, proved, that when the plaintiff came to make complaint against the defendant before him, he only charged him with having accused him of being a thief, and did not say anything about any assault upon him. One of the defendant's witnesses also proved, that he knew the person with whom the plaintiff was conversing, to be a reputed thief. Taddy, Serjt., for the plaintiff.-The circumstance of a man's being seen conversing in a crowd with a person whom he does not know, and who turns out afterwards to |