and I am about to deliver the judgment of the Court in both cases.

66

It is plain from all the authorities that a distress for rent must be made in the daytime; and the only question is, whether daytime" is to be considered as the time after sunrise and before sunset, or after daybreak and before dusk. We think that sunrise and sunset form the true limits. A vast number of cases were cited, and a number of authorities on the law respecting burglary; indeed, all the cases in the books in which the words "day" and night" occur seem to have been mentioned; but it is sufficient to say that in Co. Lit. 142 a, it is laid down: "For a rent service the landlord cannot distrain in the night, but in the daytime;" and the reference is to the Mirrour of Justices, c. 2, s. 26, where it is expressly laid down that daytime is after sunrise and before sunset. So far as we can ascertain, there is not a single authority to the contrary, nor any dictum to the effect that a distress may be made before sunrise or after sunset. Also, in Co. Lit. 202 a, it is said that "the last time of demand of the rent is such a convenient time before the sun setting of the last day of payment as the money may be numbered and

received."

The question may occur, what is sunrising and sunsetting, but upon this we give no opinion; for in one of these cases it is clear that the distress was before the sun had made its appearance, and in the other after the sun had gone down. However, persons who distrain should bear in mind that a distress is to be made in the daytime, and they ought not to go so near the limits as to raise any doubt on the subject. Some doubt was expressed as to the authority of the Mirrour of Justices; but it is spoken of by Lord Coke in the highest terms.

In the case of Nixon v. Freeman there are other points

1860.

TUTTON

v.

DARKE.

ΝΙΧΟΝ

V.

FREEMAN.

1860.

TUTTON

which remain to be considered (a). In Tutton v. Darke the rule will be absolute to enter the verdict for the plaintiff

FREEMAN.

(a) No judgment was given on those points, the case having been compromised.

April 17.

LORD WARD V. LUMLEY.

A declaration THIS was an action of debt on a demise, for three

in debt on a demise, for rent, stated

quarters' rent due on the 21st June, 1858. The declaration fully appears in the report of the case, ante, p. 87. In addition to the plea demurred to, the defendant pleaded that the plaintiff did not, by deed, let or demise the premises to that the plain the defendant: upon which issue was joined.

that the plain tiff by deed demised to defendant certain premises. Plea:

tiff did not by deed demise

the premises. Since the rent became due the deed was cancelled by the mutual con. sent of both parties. Held, that the cancelled deed was evidence in proof of the issue.

At the trial before Pollock, C. B., at the Middlesex Sittings after last Hilary Term, the plaintiff produced the lease with the seals torn off; and it appeared that it was cancelled on the 10th August, 1859, with the mutual consent of both plaintiff and defendant. On the part of the defendant it was submitted that the deed, being void, was not evidence in support of the issue. The learned Judge overruled the objection, and directed a verdict for the 37th section of plaintiff, reserving leave to the defendant to move to enter the verdict for him.

Under the

the Common

Law Procedure

Act, 1854,

the Court may

allow an appeal

though no

Edward James now moved for a rule nisi accordingly.

notice has been The plaintiff was bound to prove a demise by deed, but given and the

application is the instrument produced, having the seals torn off, was void: Com. Dig. tit. "Fait" (F. 2), Pigot's Case (a), and

not made, until

after the ex

piration of

four days from therefore no evidence in support of the issue. [Pollock, C. B.

the time of

the decision

complained of.

(a) 11 Rep. 27 a.

EASTER TERM, 23 VICT.

The rent was due before the deed was cancelled; then how does the cancellation affect the plaintiff's right to recover it?] The declaration alleges a demise by deed, the plea traverses that allegation, and, in order to prove the issue, it was necessary for the plaintiff to produce a valid deed. [Bramwell, B.-In debt for rent it is not necessary to state that the demise was by deed.] Here the plaintiff has taken issue on that fact. [Pollock, C. B.-The document was given in evidence, not for the purpose of proving its existence as a deed, but only that it was a deed at the time the rent became due. The point is in effect the same as that decided in Lord Ward v. Lumley (a). Martin, B.All that the parties were trying was, whether upon a certain day an estate existed in the defendant.] The production of a void deed is no more than the production of a piece of waste parchment. The deed being gone, the right to sue upon it is at an end: Davidson v. Cooper (b).

POLLOCK, C. B.-We all consider that the arguments and judgment of this Court in the case of Lord Ward v. Lumley (a) directly apply to this case. There will there

fore be no rule.

MARTIN, B.-I am of the same opinion. The declaration states that the plaintiff by deed demised to the defendant certain premises; the plea alleges that he did not by deed demise, and it was proved that he did. This is a declaration on the demise, not upon the deed; and the duty and liability to pay the rent is created by the

estate vested in the lessee upon the execution of the deed. It is immaterial

what becomes of the deed, for its cancellation does not

(a) Antè, p. 87.

(b) 11 M. & W. 778. In error, 13 M. & W. 843.

1860.

LORD WARD

v.

LUMLEY.

1860.

LORD WARD

v.

LUMLEY.

destroy the estate already vested. We so held in Lord Ward v. Lumley, and that case governs this.

BRAMWELL, B.-I also think that there ought to be no rule, and I am of that opinion not only on the authority of Lord Ward v. Lumley, but upon principle. It is clear that an estate already vested is not destroyed by the cancellation of the deed which created it. It is equally clear that, no action of covenant will lie on a cancelled deed, but here the question is whether debt upon the demise can be maintained. I am of opinion that it can. In debt on a demise, the declaration need not state how it was made. In 1 Wms. Saund. p. 276 a, it is said "In debt for rent on a demise by indenture, it is not necessary to declare that it was by indenture; but 'quod cum dimississet' generally is sufficient." Again, at p. 276, d, "The general rule is, that wherever an action is founded on a deed, the deed must be declared on. The only case excepted from the general rule is that of debt for rent, in which the deed need not be declared on. That exception however, seems to have proceeded on the ground that, by the demise, an interest has passed in the land: Per Mansfield, C. J., 1 N. R. 109, Atty v. Parish. In other words, that the action is founded on the privity of estate and not of contract." Therefore, if the action is founded on the privity of estate it is immaterial that the deed is not in existence, for so long as the estate remains an action of debt on the demise is maintainable. Here it is true that in one sense no deed was produced; but the allegation in the declaration was proved, because it was proved that an estate was created by the deed.

WILDE, B.-The question is whether this issue was

EASTER TERM, 23 VICT.

proved by producing a cancelled deed. I am of opinion that such a deed was capable of being used in evidence for the purpose of proving that an estate vested in the defendant. That appears from the case of The Agricultural Insurance Company v. Fitzgerald (a), where the question was whether the Company's deed of settlement, which had been altered since its execution, was available for the purpose of proving that the defendant was a shareholder. Lord Campbell, C. J., in delivering the judgment of the Court, said: "There is no ground for saying that if a deed be altered in a material part it is rendered void from the beginning. It ceases to have any new operation; and no action can be brought in respect of any pending obligation which would have arisen from it had it remained entire ; but it may still be given in evidence to prove a right or title created by its having been executed, or to prove any collateral fact." That being so, it was competent for the plaintiff to give this cancelled deed in evidence for the purpose of proving that the estate vested in the defendant.

Rule refused.

1860.

LORD WARD

v.

LUMLEY.

Maude, in Trinity Term (May 23), had obtained a rule calling on the plaintiff to shew cause why the defendant should not be at liberty to appeal.

It appeared that, through inadvertence, notice in writing had not been given within four days, and that since the decision the defendant had gone abroad, leaving no property available to satisfy execution.

(a) 16 Q. B. 432.