pleaded the general issue, which was found for him, the other two suffered judgment by default, and the jury assessed the damages against them at a farthing. He said the statute 43 Eliz. c. 6, s. 2, did not apply to an assessment of damages, where judgment had gone by default, and that such was always considered to be the practice.

*159] The enactment is, "If upon any action personal to be brought in any of Her Majesty's Courts at Westminster, not being for any title or interest of lands, &c., it shall appear to the judges for the same Court, and so signified or set down by the justices before whom the same shall be tried, that the debt or damages to be recovered therein in the same Court, shall not amount to the sum of 40s. or above, that in every such case the Judges and Justices before whom any such action shall be pursued, shall not award to the party plaintiff any greater or more costs than the sum of the debt or damages so recovered shall amount unto, but less at their discretions."

If the word "tried" is material, the present case has been tried, an issue having been joined against one defendant, as well as damages assessed against the others. And Tidd (2 Tidd, 973, 9th ed.) states a case from 9 Price, 336, (Harber v. Rand,) where, in trespass for breaking and entering plaintiff's close, defendant pleaded right of way over the locus in quo, and plaintiff took issue thereon, and new assigned extra viam; whereupon defendant suffered judgment by default; the jury found the right of way for the defendant, and 1s. on the new assignment; and the Court held the defendant entitled to costs of the issue found for him, and the plaintiff to no more costs than damages on the new assignment. This decision, indeed, was under the statute 22 & 23 Car. 2, c. 9; but in that the Judge is empowered "at the trial of the cause. And Tidd states no such general practice as was supposed; though to writs of inquiry before the sheriff, the words of the act do not apply.". Rule refused.

*160]

*BIRD against HIGGINSON. Monday, Nov. 17.

If a Judge at nisi prius decides erroneously as to the right to begin, the Court will not on this account (at least, without other reasons) grant a new trial.

Ar the trial of this cause before VAUGHAN, J., at the last Summer assizes for Merionetshire, the only evidence offered by the plaintiff was an advertisement and a letter. Some question arose as to the admissibility of these documents : and if they had not been receivable in evidence, the defendant, on whom an affirmative issue lay, would have been entitled to begin. The learned Judge, however, thought them admissible; and the plaintiff put them in, had the reply, and obtained a verdict.

Sir James Scarlett, in this term(a) moved for a new trial, on the ground, among others, that the only evidence for the plaintiff had been improperly admitted; that he, therefore, ought not to have been allowed to begin; and, consequently, that there had been a mistrial.

Lord DENMAN, C. J. If the documents were improperly received, that is ground for a motion, if the objection was taken at the trial. But as to the right to begin, the decision of the learned Judge on that point, even if we disagreed with him as to the admissibility of the evidence, would be no sufficient ground for this application. There is nothing like a mistrial. If the Judge is wrong on such a point, it may be a bad mode of trying the cause; but I never knew an instance in which *the Court interfered on that account. judge who presides at the trial, determines as to such a question finally.

*161]

(a) Nov. 6th. Before Lord Denman, C. J., Taunton, Patteson, and Williams, Js.

The

Supposing that this might be a ground, among others, for granting a new trial, it certainly would not alone.

THE COURT took time to consult with Vaughan, J., as to the other parts of the case, and on this day the rule was

Refused.

DOE dem. WETHERELL against BIRD. Monday, Nov. 17.

In a lease of a house (made in 1802,) there was a covenant, with a clause of forfeiture, not to use or exercise the trades or business of a butcher, baker, slaughterman, melter of tallow, tallow chandler, tobacco pipe maker, tobacco pipe burner, soap maker, sugar baker, fellmonger, dyer, distiller, victualler, vintner, tavern-keeper or coffee housekeeper, tanner, common brewer, or any offensive trade, without license: Held, that the lease was not forfeited by carrying on any occupation besides a trade, and that it was not a trade to use the house as a private lunatic asylum; the word trade in this covenant being applicable only to a business conducted by buying and selling.

EJECTMENT for a house, &c., in Middlesex. On the trial before Denman, C. J., at the Middlesex sittings, in December, 1833, it appeared that the action was brought upon a forfeiture of a lease, granted in 1802 by the father of the lessor of the plaintiff to a person of the name of Soilleaux, who assigned to the defendant. The lease contained a power of re-entry upon breach of any of the covenants; and there were covenants (amongst others) to repair and uphold the buildings, brick walls, &c., "and further, that the said J. N. J. Soilleaux, his executors, administrators, and assigns, shall not nor will, at any time during the said term hereby granted, permit or suffer any person or persons whomsoever to inhabit or dwell in or upon any part of the said hereby demised premises, who shall use or exercise therein or thereupon the trades or businesses *of a butcher, baker, slaughterman, melter of tallow, tallow-chandler, tobac- [*162 co-pipe maker, tobacco-pipe burner, soap maker, sugar baker, fellmonger, dyer, distiller, victualler, vintner, tavern keeper, or coffee-house keeper, tanner, common brewer, or any offensive trade, without the special license and consent of the said Thomas Wetherell, his heirs and assigns, in writing, first had and obtained for that purpose." The breaches insisted upon were two; first, that a wall had been taken down; and, secondly, that a person who held under the defendant had used the house as a private lunatic asylum. The defence as to the first breach turned entirely upon facts: with respect to the second breach, evidence was given on both sides as to the degree of annoyance, if any, created by the use of the house for the purpose mentioned. The Lord Chief Justice told the jury that he was of opinion that the manner in which the house was used came within the word "trade" in the covenant, and he left it to them whether it was offensive, asking, whether or not they would choose to live near a house so occupied. The jury found a verdict for the plaintiff, stating that they did so with respect both to the wall, and to the offensiveness of the trade. In Hilary term last, Sir James Scarlett obtained a rule nisi for a new trial, on the grounds, as to the first breach, of surprise, and of the verdict being contrary to evidence; and, as to the second breach, of misdirection.

Sir John Campbell, Attorney-General, F. Pollock, and Kelly now shewed cause. (a) This is an offensive trade, within the meaning of the covenant. It is not a *fair criterion, whether or not it would be a trade within the

bankrupt laws; several of the trades before specified in the covenant are [*163 not so now, and others were not so as the bankrupt laws stood at the time of the lease, 1802. And the bankrupt laws were passed alio intuitu. The word trade is used here

(a) Before Lord Denman, C. J., Taunton, Patteson, and Williams, Js. The arguments as to the first breach are omitted.

in the popular sense, as Shakspeare calls the gathering samphire on the face of Dover cliffs a "dreadful trade." In Johnson's Dictionary, among the definitions of trade, is "occupation; particular employment, whether manual or mercantile, distinguished from the liberal arts or learned professions," and again, "any employment not manual." A fisherman does not get his livelihood by buying and selling, yet it would scarcely be disputed that he would come under this covenant, if he carried on his calling so as to make it offensive. In Doe dem. Bish v. Keeling, 1 M. & S. 95, it was held that keeping a school was a breach of a covenant not to "use or exercise any trade or business whatsoever." It is clear, from the language of the covenant here, that trade and business are used in the same sense; for the covenant first provides against the "trades or businesses of a butcher," &c., and then adds " or any offensive trade." In fact this use of the premises is very analogous to that which would be made of them if they were turned into a tavern, except that the occupation by the occasional inmates would be less offensive in that case than in the present. It will be said that the court leans against forfeitures; but it is impossible to give a different construction to a covenant when the action is ejectment, from that which could be given to the same instrument in an action of covenant. If this be a trade, there can be no *doubt, especially after the verdict, of its being offensive. Lord Ellen*164] borough, in Doe dem. Bish v. Keeding, expressed himself strongly as to the annoyance created even by schools; 1 M. & S. 99.

Sir James Scarlett, Thesiger, and Steer, contrà. The question of offensiveness was left too broadly to the jury. If they were to determine whether they would choose to live near such a house, the question becomes one of a more or less sensitive imagination; but the real question is, whether the mode of occupation was offensive to the senses. Independently of this, the occupation is not a trade at all, either in the technical or common sense of the word. Such a term was never applied to it before. In this lease, the "trades or businesses" mentioned relate merely to the occupations specified; then follows the general prohibition, which is confined to trade. If, however, it be true that "trade" and "business" are here used in the same sense, there is as much ground for saying that "business" is narrowed to "trade," as that "trade" is extended to "business." But the words are in fact used distinctly; and this was the view taken by Le Blanc, J., in Doe dem. Bish v. Keeling, 1 M. &. S. 100. The words in that case differed very much from those in the present; there the prohibition was general against "any trade or business whatsoever;" here, there is no general prohibition of any thing but a trade. The expressions of Lord Ellenborough, in that case, which have been relied upon on the other side, were beside the point; and the case of Jones v. Thorne, 1 B. & C. 715, is stronger *165] the other way. There, the covenant, after providing against several specified "trades or businesses," added the words "any other trade or business that might be or grow or lead to be offensive;" and it was held that using the premises as a public house was no breach. It is not enough that there is a possibility of an occupation becoming offensive. Cur, adv. vult.

Lord DENMAN, C. J., in this term (November 22d) delivered the judgment of the Court. This was an action of ejectment on the forfeiture of a lease by virtue of a proviso for re-entry on breach of any of the covenants. The two breaches of covenant, for which the plaintiff had a verdict, were, pulling down a wall, and carrying on an offensive trade upon the demised premises.

With respect to the former, the defendant has entitled himself to a new trial, by raising considerable doubt whether the facts were fairly brought forward. It must be on payment of costs.

This, however, could avail him nothing, if the verdict could stand for the other and more important breach; and it has become necessary to consider whether the verdict recovered upon it can be sustained. The terms of the covenant are, that the lessee shall not carry on any of the trades or businesses enumerated, or any offensive trade whatever. (His lordship here read the

covenant.) The question is, whether these words comprehended every occupation carried on for the purpose of profit, and include the business of keeping a lunatic asylum, to which use the premises have been converted. It was argued that trade does not necessarily consist of buying and selling, though the bankrupt laws are restricted to trades of that description; that the lessor's

obvious meaning was to interdict, not buying and selling merely, but any [*166

kind of occupation which is offensive, as the jury have expressly found this to be. But supposing these general observations to be correct, and that such must have been the object of requiring the covenant, we can only collect the obligation actually entered into from the terms of the contract. Now it commences with prohibiting trades as well as businesses, two words which may be synonymous, or may have a different meaning; and when we find, in the latter part of the sentence, that one of the words is retained and the other omitted, we cannot extend the meaning of that which is retained to the more general sense which may be given to that which is omitted. Every trade is a business, but every business is not a trade; to answer that description it must be conducted by buying and selling, which the business of keeping a lunatic asylum is not. This argument is strengthened by observing that the trades and businesses enumerated are conducted by buying and selling; and, if the same general word must be held to introduce any others in addition, these at least must be ejusdem generis with the former.

Therefore, as the verdict proceeded on the assumption that the defendant's business was a trade within the terms of this covenant, there must be a new trial on this point also. Rule absolute.

*LONGSTAFF and Another against MEAGOE. Monday,

Nov. 17.

[*167

Lessee of a house containing fixtures, executed an assignment of the premises by way of mortgage, not mentioning the fixtures. He afterwards assigned the premises, and all his estate and effects, to trustees. The trustees being in treaty for a sale of the fixtures, the mortgagee, whose principal and interest were due, took forcible possession of the house, and refused, on demand, to deliver the fixtures up. The trustees brought trover:. Held, that they could not recover for the fixtures.

TROVER for counters, presses, grates, coppers, workboards, cupboards, glazed doors, moveable partitions, &c. Plea, general issue. At the trial before DENMAN, C. J., at the sittings in Middlesex after Michaelmas term, 1833, the following facts appeared. The plaintiffs were assignees of the estate and effects of Nightingale and Austin, tailors, under an indenture of assignment in trust for creditors, bearing date December the 4th, 1824. In September, 1822, Nightingale took a lease of a house and premises in Conduit street, and bought the fixtures. In April, 1824, he assigned the premises to the defendant to secure the principal and interest of 10007., advanced to Nightingale and Austin for the purposes of their business. The deed was a mere mortgage, not containing any power of sale. No mention was made in it of fixtures. Nightingale had erected fixtures since he took the house, but it did not appear whether he had put up any since the mortgage. In December, 1824, Nightingale and Austin assigned to the plaintiffs all their leasehold messuages, goods, chattels, and effects; and Nightingale also assigned to them all his leasehold messuages, effects, and separate estate, in trust for the creditors of Nightingale and Austin. The defendant did not execute the trust deed. In the spring of 1828 the plaintiffs put an auctioneer into possession of the premises, for the purpose of selling the furniture and fixtures. In the beginning of April the furniture was sold, but the sale of the fixtures was stopped at the desire of a person who was in

*168] treaty with the plaintiffs and defendant for the premises and fixtures, and proposed taking the latter at a valuation. The auctioneer, as soon as the furniture was removed, locked up the premises, and left no person upon them. The defendant, whose principal and interest, under the mortgage, were due and unpaid, finding the house unoccupied, got into possession; a man was afterwards sent in by the auctioneer, but the defendant turned him out; and a demand of the fixtures being made on behalf of the plaintiffs, he refused to deliver them up. Sir John Campbell, Solicitor-General, for the defendant, contended that, assuming the value of these fixtures to be recoverable in trover, the defendant was still entitled to retain them, having been rightfully in possession of the house, as mortgagee, at the time of the alleged conversion; and he cited Colgrave v. Dias Santos, 2 B. & C. 76, and Lyde v. Russell, 1 B. & Ad. 394. Sir James Scarlett, for the plaintiffs, denied that those cases were applicable where the proprietor of the fixtures was turned out by force. The Lord Chief Justice put two questions to the jury; first, whether or not the defendant had taken forcible possession; and, secondly, what was the value of the fixtures. The jury found that forcible possession had been taken, and that the value of the fixtures was 80%. It was then agreed that a nonsuit should be entered, subject to a motion to enter a verdict for the above sum. A rule nisi was obtained accordingly; the Lord Chief Justice, upon the motion, stating his impression to be, that, as the mortgagee had a legal title to the premises, although he might have acted illegally in taking possession, he had a right to keep it as against the plaintiffs; and that *trover could not be maintained for the fixtures, of which he had taken possession at the same

*169]

time.

Sir John Campbell, Attorney-General, now shewed cause. The defendant, as mortgagee, having entered with superior title, had a right to the possession of the fixtures, even if they were erected since the mortgage. They went with the house, and constituted a part of his security. Whether he took possession by force or not, is immaterial. Colegrave v. Dias Santos, 2 B. & C. 76, shews that trover cannot be maintained for fixtures after the tenant has delivered up possession; they then pass by the conveyance which passed the freehold. On the authority of that case, and on general principles of law, this action is not maintainable.

Sir James Scarlett and S. Temple, contrà. It is clear from Davis v. Jones, 2 B. & Ald. 165, and Pitt v. Shew, 4 B. & Ald. 206, that fixtures, of some kinds at least, may be sued for as goods and chattels, and the value of them recovered in trespass and trover. Colegrave v. Dias Santos, 2 B. & C. 76, is distinguishable from this case. The owner there had sold and delivered up the premises without any reservation as to fixtures; the buyer had taken lawful possession of them by the consent of the proprietor, and it could not afterwards be contended that they did not pass by the sale and delivery. But here there was no delivery of the fixtures to the defendant; the intention of the owners while in possession was to sell them; and they had actually begun doing so, but were stopped by a person in treaty with the defendant. The latter must *170] have been cognisant of that *proceeding. Nor was the house ever delivered by the plaintiffs to the defendant: he took possession by force, and wrongfully; for the mortgagor, if in default as to his payments, was still entitled to hold the premises till he was put out in a legal manner. The fixtures thus taken by the defendant were duly demanded of him, and refused. The plaintiffs, therefore, have a clear right of action. At all events, there were some articles comprised among the fixtures which would not pass with the freehold, and for these there must be a verdict.

Lord DENMAN, C. J. According to the last suggestion, a distinct inquiry ought to have been instituted as to every article. I understood that the opinion of the jury was taken as to the value of what were called the fixtures; that a list of things was submitted to them under that name, and no question made as