
    Hugh R. Kendall vs. Brien Carland & others.
    Tha plaintiff, in a declaration against two partners on a lease signed by their partnership name, having set forth the demise to the defendants, and their covenant to pay a certain yearly sum, was allowed, after verdict, to amend, by inserting after the allegation of the demise, the words “ yielding and paying therefor the clear yearly rent,” &c., by substituting “ rent” for “ sum,” and by alleging that the demise was made to, and the covenant by, the defendants in their copartner ship name.
    
      A plaintiff may, by leave of court, after verdict and judgment in his favor on one count, amend his declaration by inserting other counts for the same cause of ar tian, and take a general verdict on all the counts.
    The rule of court, that a defendant, who intends to deny the signature of an instrument declared on, must file a written notice of such intention, applies to the case of a partner intending to deny the signature of the partnership name by his co-partner, on the ground of a want of authority in him to sign the same.
    The tenant under a demise from “ A. attorney to C.” having occupied and enjoyed the premises demised without disturbance by C or any other person, cannot ob ject in an action for rent by an assignee of the lease, that the lease is void because not the lease of C.
    An assignment by a lessor of the rent, without the reversion, gives the assignee a right to sue in his own name for rent subsequently accruing.
    Under a joint lease to two tenants, the occupation of one is sufficient to make both liable for the rent.
    This was an action of debt for the rent of certain premises in Batterymarch street, in Boston, brought by the plaintiff against Brien Garland, John W. Langdon and William B. Spooner, the last two doing business as merchants under the firm of J. W. Langdon & Co. The declaration contained four counts. The first set forth that James and Abigail Crosby, being seized in fee of the premises in question, on the 16th of September, 1843, demised the same to the defendants, to hold for the term of five years thence next ensuing, in consideration whereof the defendants by their deed indented of that date covenanted to pay the said James and Abigail the yearly sum of three hundred and twenty-five dollars, by equal quarterly payments, on the 16th days of December, March, June, and September, in each year; that by virtue of said demise the defendants entered into the premises and were possessed thereof, until the 16th day of December, 1846 ; that the said James and Abigail, after the said demise and entry, on the 16th of March, 1846, assigned and conveyed to the plaintiff the reversion of the premises: Wherefore by reason of said demise, entry, occupation and assignment, the sum of two hundred and forty-three dollars and seventy-five cents of the rent aforesaid, for the space of nine months, on the said 16th of December, 1846, elapsed, became and was due and payable to the plaintiff and still was in arrear and unpaid, &c. The second count was for the recovery of $243.75, for the use and occupation of the premises, before the 16th of December, 1846. The third count was like the first, except that it alleged, that Zabdiel B. Adams, being seized in fee of the premises in question, made the demise to the defendants; that the defendants covenanted to pay the said yearly sum to Adams; and that Adams made the assignment to the plaintiff. The fourth count was on a quantum meruit for the use and occupation of the premises, previous to the 16th of December, 1846.
    At the trial before Cushing, J., in the court of common pleas, the plaintiff offered in evidence an indenture of lease, dated the 16th of September, 1843, bearing the signatures of Brien Garland, John W. Langdon & Co., and Z. B. Adams, attorney to J. & A. Crosby, and a seal to each signature, whereby “ Zabdiel B. Adams of Boston, physician, and attorney to James and Abigail Crosby,” demised “ unto Brien Garland, and J. W. Langdon & Co.,” the premises in question, to. hold ior the term of five years from the said 16th of September, yielding and paying therefor the yearly rent of three hundred and twenty-five dollars; and the lessees covenanted to pay the rent in equal quarterly payments of eighty-one dollars and twenty-five cents each, on the 16th days of December, March, June, and September of each year. The lease contained the usual covenants, and a stipulation that if, during the term, it should become necessary or expedient to make a different disposition of the premises, the lessees should be held bound to remove and deliver up the premises to the lessor, upon receiving one quarter’s notice, and in such case one quarter’s rent should be given up to them.
    The following assignment under seal was written upon the back of the lease: —
    “Boston, March 16th, 1846. For value received I hereby assign to Hugh B. Kendall, Esq., of Brookline, all my right, title and interest in and to the within lease, and the moneys due and to become due under the same from the lessees named therein, which I authorize him to collect and sue for in his own name, or in my name and as my attorney. To have and to hold the assigned premises to said Kendall, his heirs and assigns, to his and their use and behoof for ever.” “ Z. B. Adams, attorney to J. & A. Crosby.”
    The defendants objected to the admission of the lease as evidence ; but the judge admitted it.
    
      The plaintiff also proved, that the defendant Garland was in the occupation of the premises in question, from the 16th of March, 1846, to the 3d of October in the same year; and gave in evidence a warranty deed, from James and Abigail Crosby, dated July 22d, 1845, purporting to convey the fee of the premises in question to the plaintiff, in which no reference was made to any lease of the premises conveyed, and they were warranted free from all incumbrances. The plain1 iff then rested his case.
    The defendants, having pleaded the general issue, and not having filed any notice of their intention to deny the signatures of the lease declared on, objected that the plaintiff could not recover: 1st, Because the lease offered in evidence was not the lease of the Crosbys as stated in the declaration; 2d, Because the plaintiff had not alleged with sufficient certainty the character of the assignment, or shown in his declaration how he acquired his title; 3d, Because the plaintiff had not declared against the defendants Langdon and Spooner in the name by which they signed the indenture; 4th, Because there was no evidence that the lease was executed with the seals of the defendants, or that either partner had power to bind the other partner by signing the partnership name to a sealed instrument; 5th, Because the declaration did not allege the entire contract concerning the payment; 6th, Because there was no privity of contract or estate proved, which would authorize the assignee to sue in his own name; 7th, Because the declaration stated no covenant to pay any thing in the nature of rent issuing out of the land, which would authorize the plaintiff to sue in his own name.
    The presiding judge ruled, that all the objections, except the last, were immaterial, and gave the plaintiff leave to amend in order to cure the last objection ; but no amendment was then offered.
    A verdict was rendered, under the instructions, in favor of the plaintiff, for one quarter’s rent. Some days after the verdict, and after the filing of a motion in arrest of judgment, the plaintiff moved for leave to amend his declaration, by substituting instead of the word “ defendants,” wherever it occurred in the declaration, the words “ the said Garland and the said Langdon and Spooner under and by their copartnership name and firm of J. W. Langdon & Co.”; and also, in the first and third counts, by inserting after the words “ thence next ensuing,” the words “ yielding and paying therefor the clear yearly rent of three hundred and twenty-five dollars, at the times and by the payments hereinafter mentioned,” and the word “ said ” before the word “ yearly,” and by substituting for the word “ sum ” after the word “ yearly,” the word “ rent ”; which motion was allowed by the judge without costs.
    To all the above rulings the defendants filed exceptions.
    After the filing of these exceptions, and after judgment had been ordered upon the first count, the plaintiff having waived the other counts in the writ, the judge allowed him to amend by reinserting the other counts, and to take a general verdict on all the counts; the defendants objecting that this ought not to be done, 1st, because under the third count there was no evidence of an assignment of the reversion by Adams; 2d, because there were no counts in debt for use and occupation; and, 3d, because there was no evidence of joint use and occupation. And to the order of the judge allowing this amendment the defendants excepted.
    
      G. G. Davis, for the defendants.
    
      W Sohier, for the plaintiff.
   Wilde, J.

1. The defendants’ first objection is, that there is a variance between the declaration and the lease given in evidence; it not being averred in the declaration, that J. W. Langdon & Co. signed by their partnership name. If this .objection would otherwise have been good, the defect was cured by the amendment moved for b-y the plaintiff, and properly allowed by the court. The Rev. Sts. c. 100, §§ 21, 22, 23, give great power to the court in the matter of amendments. By § 21, “ No writ, process, declaration, ór other proceeding in the courts, or course of justice, shall be abated, arrested, quashed, or reversed, for any circumstantial errors or mistakes, when the person and case may be rightly understood by the court, noi through defect or want of form only. By § 22 the couW i.-authorized, at any time before judgment rendered, to “ allow amendments, either in form or substance, of any process, pleading, or proceeding,” in an action, on such terms as shall be just and reasonable. And § 23 provides for the amendment, after judgment rendered, “ of any defects or imperfections in matter of form, found in the record or proceedings,” “ if substantial justice requires it, and if the amendment is in affirmance of the judgment.” Under these provisions of law, there can be no doubt, that this amendment, as well as the others made in this case, were rightly allowed by the court of common pleas.

2. It is next objected, that both partners are not bound by the signature of “ J. W. Langdon & Co.,” because, it is said, one partner has no power to bind his copartner, without his assent, by an instrument under seal. This doctrine has been established in England since lord Kenyon’s decision in Harrison v. Jackson, 7 T. R. 207, overruling a nisi prius decision of lord Mansfield. In this state, the question was much discussed in Cady v. Shepherd, 11 Pick. 400, though not necessary to the decision of that case.

But, however the law may be on this point, the defendants cannot here deny this signature. In an action of debt on a lease under seal, nil debet is a bad plea, if the defendant means to deny the signature ; he should plead non est factum. Even if this would be otherwise in this state, since special pleading was abolished, still the defendant would be obliged to specify his intention in defence. This point is settled by the thirty-eighth rule of the court of common pleas, (being the same as the fifty-third rule of this court,) which provides, that “ when an action is brought on a promissory note, bill of exchange, or other instrument, the defendant shall not on the trial be allowed to deny his signature, or that of any other party to the instrument, unless it be under a plea of non est factum to a bond or other deed, or unless the defendant shall have filed a notice in writing of his intention to deny the signature.” And this rule applies to the case of one partner who would deny the signature of the name of the firm, made by his copartner, equally with other cases, and for the same reason, to prevent the plaintiffs being taken by surprise.

3. The defendants then object that the lease given in evidence is not the lease of James and Abigail Crosby, because the demise is not in then names. But although it might not be a good conveyance as against the Crosbys, yet the defendants are estopped to deny the validity of the lease; for, if not the lease of the Crosbys, it is the lease of Adams, and the defendants, having occupied and enjoyed the premises without being disturbed by the Crosbys or by any other person, cannot deny the title of their lessor.

4. The defendants contend, that the assignment is void, as it transfers the rent only, and not the reversion. But the cases of Allen v. Bryan, 5 B. & C. 512, and Demarest v. Willard, 8 Cow. 206, cited by the plaintiff, show that where the rent alone is assigned, the assignee may sue in his own name for rent accruing after the assignment. Besides, the plaintiffs had a valid title to the premises by the deed from the Crosbys.

5. The last objection worthy of notice is that there was no evidence of a joint occupation. But under a joint lease the occupation of one is sufficient. Exceptions overruled.  