452 ACTIONS BY TENANTS IN COMMON. 



contract wliatevcr unless tlic original contract is transferred by opera- 

 tion oflaw" ( //;.)• 



Tenants-in-common may join in suing for use and occiipaf ion a, tenant 

 holding under them ; and payment of rent to an agent " on behalf 

 of the family " is evidence of such holding (Last v. Dinn). An action 

 for rent hy tenants-in-common is in its mdure a joint action, and conse- 

 quently the survivors may sue for the tvlwte, though the reservation be 

 to the lessors according to their respective interests (TFa//«fe v. J/ftc- 

 laren). And it was decided by the Court of Exchequer Chamber, in 

 Henderson v. Eason, that if one of two tenants-in-common soJety occupy 

 land, farm it at his own cost, and take the produce for his own benefit, 

 his co-tenant cannot maintain an action of account against the former 

 uuder 4 Anne, c. 16, s. 27, as his bailiflf, by reason of the former having 

 received more than comes to his just share and proportion ; the statute 

 applies to cases where rent or payment in money or in kind, due in 

 respect of the premises, is received from a third party by one co-tenant, 

 who retains for his own use the whole or more than his proportional 

 share. 



Where it appeared in evidence that A. and B. had taken some jKisturage 

 joititly, and that each had turned his cattle upon it (how many was 

 not shown), and that A. paid the whole rent, it was held by Patteson 

 J., in making a rule absolute for a new trial, in an action against 

 B. for half the sum so paid by A., that the jury were not warranted in 

 finding that the share of each was a moiety (Siuirpe v. Oumminys). " If 

 they took the catage together," said his Lordship, " I think it must be 

 taken that there was a partnershiji, and this case does not come within 

 the rule in Venning v. Lechie, inasmuch as it was not a payment before, 

 but in consequence of the partnership. Suppose they had taken a farm 

 together, can there be any doubt that there would have been a partner- 

 ship then, and that the plaintiff could not have recovered a payment 

 like this ? " 



TliC reservation of a rent in corn means the legal quarter of eight 

 gallons to the bushel. Cwi-n purchased in open market may by the 

 law of Scotland be recovered from the buyer to satisfy rent in arrear 

 of the current year, the corn being part of the produce of that year of 

 the land rented ; and this decision was affirmed by the House of Lords 

 {TJuntop V. JJalhoiii<ie). 



Where in a lease of land for 21 years from the 25th of March, 

 1848, it was covenanted that the lessee should pay a stipulated sum 

 for the first year, with a proviso that the rent for each subsequent year 

 of the term shoiddle reduced or increased according to " the aver acje price 

 of ic Ileal in any one year of the said term," such average " to be taken 



