The West Briton and Cornwall Advertiser, 9th April, 1841



Mr. ERLE and Mr. BUTT for plaintiffs; Mr. Serjeant BOMPAS and Mr. TAPRELL for defendant. This was an action brought by Mr. and Mrs. Niblett, of Devonport to recover arrears of rent, amounting to 29. 11s., due on the Tamar brewery at Calstock, and for a cottage adjoining, amounting to 9, at 4 a year. The properties were distinct. It appeared that the brewery was held by the defendant, who was a relative to Mrs. Niblett; and that a distraint for rent due at Midsummer last, amounting to 72. 10s., had been levied in July, 1840. The produce of the goods levied amounted to 12. 19s., after deducting expenses. Mr. YEO, the auctioneer, proved that the defendant acknowledged the rent claimed for the brewery was due, but said that since his relations, the plaintiffs, had distrained, he would not give up possession. The defendant continued to occupy the premises without using them till the 24th of December in the same year - the Rent being 50 a year. But for this period - from Midsummer to the 24th of December - The Judge held that the plaintiff had no claim, as the defendant had been removed by the magistrates' authority under the new Act, from the premises, on the day preceding the termination of the half-year of tenancy. With respect to the arrear of 29. 11s. due at Midsummer, it was proved by Mr. Yeo that the defendant admitted the rent was due, but now proposed to show that somebody else, instead of the plaintiff's, was entitled to it. With this view, he first put in a lease dated January, 1826, from Mrs. Mary Harry, to Mr. Henry Clifford Smith, granting the brewery for 14 years, at 59 a year: and Mr. Smith assigned it to defendant. But it did not appear here that the plaintiff's either claimed under Mrs. Harry, or had the least connection with her. It was true that Mrs. Niblett, while the widow of Mr. Harry, did received 50 a year for the brewery; but whether under this lease, or some demise by her late husband, did not appear. The lease was put in by defendant to show that the present action on assump(?)it was not tenable, inasmuch as the demise was, according to the defendant's showing, under seal. But it did not appear to the Judge, in summing up, that the plaintiffs had made any claim, or that rent had been received from them under this lease, and therefore, it formed no answer on the part of the defendant to the present action. But the defendant further endeavoured to show that the premises were not in Mrs. Niblett, but in certain trustees under her marriage settlement. To show that, the defendant put in some proceedings before two magistrates, proving that on application by Mr. CHAPMAN and Mr. LONGDON, of Devonport, Mrs. Niblett's trustees, the magistrates delivered to them possession of the brewery on the 24th of December. His Lordship, however, held that this application by her trustees, without her cognizance, could not prejudice Mrs. Niblett's right; and that therefore, the defendant had failed in establishing that the rent was due to her trustees, and not to herself and husband. Then as respected the cottage property, the case turned on the evidence of Mr. Yeo, that the defendant, on the occasion of Mr. Yeo's being engaged to sell the distrained goods, told him that he gave 4 a year for the cottage; and although he did not expressly say to whom he paid this rent, it was proved by Mr. BERRYMAN, the steward of the manor of Calstock, who produced the court rolls of the manor, that Charles Harry, a former husband of Mrs. Niblett, was admitted as tenant of the land on which the cottage was built, at the court held in October, in 1821, and that according to the custom of the manor, on the death of Mr. Charles Harry, the tenant, his widow was admitted to the tenancy for her life. Verdict for Plaintiff, 38. 11s.

Contributed by Isabel Harris