Like counts. Douglas v. Forrest, 4 Bing. 686; Cowan v. Braidwood, 1 M. & G. 882; Patrick v. Shedden, 2 El. & Bl. 14.

Count for costs awarded by a decreet of the court of session in Scotland in a suit for divorce. Russell v. Smyth, 9 M. & W. 810.

Count on a judgment of the court of queen's bench in Ireland. Sheehy v. Professional Life Assurance Co. 13 C. B. 787.

Count on a colonial judgment. Robertson v. Struth, 5 Q. B. 941. On a decree of a colonial court of equity. Henderson v. Henderson, 6 Q. B. 288.]

OBS.

LANDLORD AND TENANT.

At common law a demise, except of incorporeal hereditaments, such as of a right to shoot, Bird v. Higginson, 6 Aď. & E. 824, or fish, Jones v. Reynolds, 4 Ad. & E. 805, or a demise of tithes, Gardiner v. Williamson, 2 B. & Ad. 336, need not have been in writing. But by the statute of frauds (29 Car. 2, c. 3, s. 1), all leases, estates, interests of freehold, or terms of years, or any uncertain interest, of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, made or created by livery and seisin only, or by parol, and not put in writing, and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only; and shall not, at law or in equity, have any greater effect, notwithstanding any consideration for making such parol leases or estates. As to the sufficiency of a memorandum under this section, see Bayley v. Fitzmaurice, 8 El. & Bl. 664; 27 L. J. Q. B. 143, Ex. Ch.; affirmed in House of Lords, 8 W. R. 750. Section 2 excepts "all leases not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord, during such term, shall amount unto two-third parts at the least, of the full improved value of the thing demised." By the 8 & 9 Vict. c. 106, s. 3, it is enacted, "that every lease, required by law to be in writing, of any tenements or hereditaments, made after the 1st day of October, 1845, shall be void at law unless made by deed." But an instrument, though void as a lease, governs the terms of the holding; and at the end of the term the tenant is bound to quit without notice. Tress v. Savage, 4 El. & Bl. 36; Lee v. Smith, 9 Ex. 662, 665, per Martin B.; Parker v. Taswell, 2 De G. & J. 559; Tooker v. Smith, 1 H. & N. 732; [Bond v. Rosling, 1 B. & S. 371; Tidy v. Mollett, 16 C. B. N. S. 298.] No action lies against a lessee under a parol demise for not entering. Edge r. Strafford, 1 C. & J. 391.

Until the passing of the Com. L. P. Act, 1852, which dispensed with the necessity for mentioning the form of action in the writ, there were nice distinctions as to the proper form of action to be adopted. Where the contract was not under seal, either assumpsit or debt was the remedy. Thus, when the action was for rent due on a lease executed by the lessee, either debt or covenant might be maintained by the lessor or his assignees, or representatives against the lessee or his assignees, or representatives; with this exception, that where the landlord had accepted rent from the assignee, and had thus recognized the assignment, he could not sue the lessee in debt. 1 Saund. 241; 2 Saund. 297; 1 Chit. Pl. 7th ed. 126. Where the claim upon a lease was not for rent, an action thereon by the lessor or lessee, or by or against either of their personal representatives, must have been in covenant. Though these technical forms of action are now abolished, where the contract is under seal, it must be declared upon according to its terms and legal effect. See an exception, Form 3, post, 184. But counts on the contract may be joined with any other claim a landlord may have against his tenant, as in tort for waste, &c. See Marker v. Kenrick, 13 C. B. 198. The venue is transitory in actions on leases founded on the privity of contract between the parties, as by the lessor or his personal representatives against the lessee, or by the lessee against the lessor; by the assignee of the reversion against the lessce, or by the lessee against the assignee of the rever

OBS. sion. But the venue is local where the cause of action arises out of the privity of estate, and not by reason of the privity of contract, as by the assignee or devisee of the lessor against the lessee; by the lessor or his personal representatives, or the assignee of the reversion against the assignee of the lessee; against the executor of the lessee where the executor is charged as assignee; and by the assignee of the lessee against the lessor. 1 Saund. 241 b, c, d, note (6); 1 Chit. Pl. 7th ed. 284. See, as to the statement of venue and the consequences of misstating it, ante, 2, Obs. (D). In Boyes v. Hewitson, 2 Bing. N. C. 575; 7 C. & P. 127, S. C.; in a local action of covenant on a lease, the plaintiff laid the venue in a wrong county, but as the locality of the premises did not appear on the declaration and no issue was raised thereon, it was decided that the defendant was not entitled to a nonsuit; the defendant ought, it seems, to have pleaded that the venue wrongly laid. Richards v. Easto, 3 D. & L. 515. If the objection appears upon the record it seems that defendant may demur. Simmons v. Lillystone, 8 Ex. 431; Mayor of Berwick upon Tweed v. Shanks, 3 Bing. 459; 16 & 17 Car. 2, c. 8. The 3 & 4 W. 4, c. 42, s. 22, gives a power to the court to direct local actions to be tried in any county. In Tremeere e. Morrison, 1 Bing. N. C. 89, in a local action of covenant, the declaration stated the county in the margin, and charged that the defendant entered and became possessed of the premises, "to wit, in the county aforesaid," and it was held, on demurrer, that this amounted to a sufficient allegation that the premises were situate in the county mentioned in the margin.

was

In general a party suing upon a lease must show his title in the declaration. Where the lessor is the plaintiff, his title is not made the subject of any special allegation, because the lease operates as an e-toppel against the lessee and his assigns, and the title is admitted; Beckett v. Bradley, 7 M. & G. 994; post, Pleas, "Eviction;" where the lessor has only an equitable interest, that fact may be stated in the declaration, in which case the covenants to pay the rent, &c. will be considered as covenants in gross, so as to estop the defendant from pleading that the plaintiff had no reversion in the premises. Pargeter v. Harris, 7 Q. B. 708. But when the lessor's title begins by the estoppel which the lease creates between the lessor and the lessee, such estoppel runs with the land into whosoever hands it comes, whether heir, or assignee, or devisee. 2 Wms. Saund. 418 a, (1); Cuthbertson v. Irving, 4 H. & N. 742; 28 L. J. Ex. 306; affirmed in error, 8 W. R. 704; [4 H. & N. 742; 6 H. & N. 135;] and this whether the demise was by lease under seal or by parol. Hickman v. Machin, 28 L. J. Ex. 310; [4 H. & N. 716. As to the rule that the tenant is estopped to dispute his landlord's title, see 1 Chitty Contr. (11th Am. ed.) 462, and note (1) and cases cited; and the exceptions to it, see 1 Chitty Contr. (11th Am. ed.) 464-466, and notes, 6, note (b), 79, note (m); Swatman v. Ambler, 8 Ex. 72. Where the estoppel is set up by one claiming as assignee of the lessor, the tenant may show that such assignment was ineffectual to pass the lessor's title. Gray J. in Hilbourn v. Fogg, 99 Mass. 12; Gillett v. Mathews, 45 Missou. 307; Dunshee v. Grundy, 15 Gray, 317; Bergman v. Roberts, 61 Penn. St. 497. See, further, for exceptions to the estoppel, 1 Chitty Contr. (11th Am. ed.) 462, note (t).] It was formerly necessary, in actions brought by the assignee or representatives of the lessor, specially to deduce the plaintiff's title on the face of the declaration, and to show what the lessor's title was, and how it passed. But in an action by the assignee of the reversion, it would seem to be sufficient to allege that the lessor by deed assigned the reversion to the plaintiff, without showing what the lessor's title was, though a departure from the accustomed forms is to be deprecated. See Cuthbertson v. Irving, supra. If the above mode of alleging the plaintiff's title be adopted, it would seem that an application might be made under the C. L. P. Act, 1852, s. 52, to compel the plaintiff to deduce his title specially, on the ground that the general statement in the declaration tended to embarrass the defendant. Per Martin B. in Cuthbertson v. Irving, supra. If there have been several mesne assignments under which the plaintiff is entitled, in strictness they should all be stated; 1 Saund. 112 b, note (1); Ib. 234; though since the Com. L. P. Act, 1852, probably a general averment that the reversion was assigned to the plaintiff might suffice, subject to an application to the court as above; and

OBS. to this disadvantage, that on a traverse of such averment the plaintiff would be compelled to be prepared at the trial with evidence of the whole title; whereas, if he deduced the title step by step, the proof might be narrowed by a part only of the title being put in issue by the defendant. See post, 198, note (h). As to the mode of describing the estate and quantity of interest, and showing the derivation of title, see Steph. 4th ed. 334, 342; 1 Chit. Pl. 7th ed. Index, Title Pleaded. In deducing a title it is the established rule, that conveyances are to be pleaded as they operate. Per Parke B. Price v. Williams, 1 M. & W. 14; Moore v. Earl of Plymouth, 5 B. & Ald. 70. Thus, if a deed operate in law as a surrender, it should be pleaded as such, though it purport to be a conveyance. 1 Saund. 235 b, note (9).

-

USE AND OCCUPATION. As to this count, see, generally, [1 Chitty Contr. (11th Am. ed.) 510 et seq.;] Woodfall's Landlord and Tenant; Rosc. Evidence. At common law an action of debt was maintainable for use and occupation, even though there was an actual demise, if not under seal; Gibson v. Kirk, 1 Q. B. 850; and by 11 Geo. 2, c. 19, s. 14, it is enacted, "that it shall be lawful for a landlord, where the agreement is not by deed, to recover a reasonable satisfaction for the lands, tenements, or hereditaments held or occupied by the defendant in an action on the case (i. e. assumpsit), for the use and occupation of what was so held or enjoyed; and if in evidence on the trial of such action, any parol demise, or any agreement (not being by deed), whereon a certain rent is reserved, shall appear, the plaintiff shall not therefore be nonsuited, but may make use thereof as an evidence of the quantum of the damages to be recovered." See per Holroyd J. Hall v. Burgess, 5 B. & C. 333. [Assumpsit for use and occupation of land, by permission and assent of the plaintiff, on an express promise to pay a certain sum, or in general to pay to the plaintiff's satisfaction for such use, lies at common law independently of this statute. Eppes v. Cole, 4 Hen. & M. 171. It also lies on an implied promise. See 1 Chitty Contr. (11th Am. ed.) 511, note (x1) and cases cited.] This count may be used though there be an express written demise not being by deed. But the plaintiff can only recover according to the terms of the express contract. Collett v. Curling, 10 Q. B. 785; Watson v. King, 3 C. 13. 603; but see Smith v. Eldridge, 13 C. B. 236. If there be a demise under seal, the plaintiff must declare for rent on a demise, as post, Form 3, or on the covenant for payment of rent, as post, Form 4; [Warren v. Ferdinand, 9 Allen, 357; Richards v. Killam, 10 Mass. 243; Codman v. Jenkins, 14 Mass. 93;] but a lease under seal executed, but never delivered so as to operate as a lease, will not defeat the action for "use and occupation." Gudgen v. Bessett, 6 El. & Bl. 986. Where there is a written agreement or demise, it must be produced by the plaintiff duly stamped, and parol evidence of the tenancy is not admissible; and if it appear on his own showing, or on crossexamination of his witnesses, that there was such writing in reference to the claim in question, and plaintiff did not produce and prove it, duly stamped, he will be nonsuited (if never indebted has been pleaded). See Brewer v. Palmer, 3 Esp. R. 213; Ramsbottom v. Tunbridge, 2 M. & S. 434; Hodges. Drakeford, 1 New R. 273; Fenn v. Griffiths, 6 Bing. 533. If, however, the plaintiff can get through his case without disclosing that fact, it is no ground of nonsuit if it afterwards appears that there is such a written agreement; Fry v. Chapman, 5 Dowl. 265; and the defendant cannot then put in such written agreement without producing it stamped. Fielder v. Ray, 6 Bing. 332; Rex v. Inhabitants of Padstow, 4 B. & Ad. 208. This count may be used whether a specific rent were agreed upon, or the rent is claimed on a quantum meruit. Collett v. Curling, ubi supra. The action is one of contract, and is founded on the relation of landlord and tenant, and it requires evidence of an occupation by the permission of the plaintiff, and under a contract with him. Churchward v. Ford, 2 H. & N. 446; 26 L. J. Ex. 354; Sloper v. Saunders, 29 L. J. Ex. 275; [5 H. & N. 964; Boston v. Binney, 11 Pick. 1; Featherstonhaugh v. Bradshaw, 1 Wend. 134; Smith v. Stewart, 6 John. 46; O'Conner v. Tyves, 3 Rich. 276; Ward v. Ball, 1 Branch, 271; Stoddert v. Newman, 7 Harr. & J. 252; Vandenheuvel v. Storrs, 3 Conn. 203; Bancroft v. Wardwell, 13 John. 489; Levi v. Lewis, 9 C. B. N. S. 872, 876; Tew v. Jones, 13 M. & W. 12; 1 Chitty Contr. (11th Am. ed. 515.] This contract may be implied in favor of a person who has a

OBS. legal title to the premises held by the defendant, although there was nc demise by the plaintiff to the defendant, and the title of the former accrued from the defendant's landlord pending the defendant's tenancy, and the defendant has not attorned; as in the case of a mortgagee, or a trustee, &c. Standen v. Christmas, 10 Q. B. 135; Turner v. Cameron's Coal Co. 5 Ex. 932; Moss v. Gallimore, Dougl. 279; Rennie v. Robinson, 1 Bing. 147; Burrough v. Graden, 1 D. & L. 218. But in such case the plaintiff must prove a legal title to the premises; Stephens v. Lynn, 8 C. & P. 389; Cornish r. Searell, 8 B. & C. 471; a contract will not be implied in favor of a person who has a mere equitable title, but where there is an express demise the tenant will be estopped from disputing the title of his lessor or his lessor's assignees. Hickman v. Machin, 28 L. J. Ex. 310; [4 H. & N. 716; ante, 180; 1 Chitty Contr. (11th Am. ed.) 462, and note (t), 464-466; Towne v. Butterfield, 97 Mass. 105; Galloway v. Ogle, 2 Binn. 268; George v. Putney, 4 Cush. 351.] As by the assignee of a mortgagor who had subsequently to the mortgage let the defendant into possession as his tenant; Hickman v. Machin, 28 L. J. Ex. 310; [4 H. & N. 716;] and this count may be maintained by the assignees of the reversion, though the demise to the defendant was by parol. Standen v. Christmas, ubi supra; or against the assignees of the tenant. How . Kennett, 3 Ad. & E. 659; Hellier v. Sillcox, 19 L. J. Q. B. 295. And where a tenant held over after his own term and that of his landlord, having applied to the superior landlord for a fresh term, and be referred to his landlord as being still tenant, and the latter subsequently paid rent to the superior landlord; held, that this was evidence from which a jury might infer a contract by the tenant to pay his landlord for the occupation. Levy v. Lewis, [6 C. B. N. S. 760; S. Č. 9 C. B. N. S. 872.]

This is not a proper form of action to try a title in the absence of the relation of landlord and tenant; [Boston v. Binney, 11 Pick. 1; Binney Chapman, 5 Pick. 127; Codman v. Jenkins, 14 Mass. 96; Williams v. Mayor, 6 Harr. & J. 350; Wyman v. Hook, 2 Greenl. 338;] and the presumption in favor of a contract arising from ownership on the one hand, and occupation on the other, or even from payment of rent, Knight v. Cox, 18 C. B. 645; Harden v. Hesketh, 4 H. & N. 175, may be destroyed by any evidence negativing a contract, as that the defendant entered under a contract with a third person; Marquis Camden v. Batterbury, 28 L. J. C. P. 335; [see Buell v. Cook, 4 Cowen, 238;] or as a trespasser; Turner v. Cameron's Coal Co. 5 Ex. 932; or adversely to the plaintiff; Tew v. Jones, 13 M. & W. 12; [Boston v. Binney, 11 Pick. 1; Featherstonhaugh v. Bradshaw, 1 Wend. 134; Smith e. Stewart, 6 John. 46; O'Conner v. Tyves, 3 Rich. 276; Ward v. Ball, 1 Branch, 271; Stoddert v. Newman, 7 Harr. & J. 252;] so an intended purchaser or intended lessee who has entered under an agreement for sale or for a lease to him, and has occupied beneficially, until the contract has gone off for want of title, is not on these grounds alone liable in this form for the period of his occupation up to the time of the contract going off; Winterbottom v. Ingham, 7 Q. B. 611; [Greenup v. Vernon, 16 Ill. 26; 1 Sugden V. & P. (8th Am. ed.) 179, 180; Hough v. Birge, 11 Vt. 190; Little v. Pearson, 7 Pick. 301; Carson . Baker, 4 Dev. 220; Jones v. Jones, 2 Rich. 542; Brewer v. Craig, 3 Harr. 214; Doe v. Cochran, 1 Seam. 209; Jones v. Tifton, 2 Dana, 295; Bell v. Ellis, 1 Stew. & P. 296; Smith v. Stewart, 6 John. 46; Coffman e. Huck, 19 Miss. 435; Bancroft v. Wardell, 13 John. 459; McNair e. Schwartz, 16 Ill. 24; Rogers v. Wiggs, 12 B. Mon. 504:] but if he continues in pos session after the contract goes off, he may be liable for his subsequent occupation. Howard v. Shaw, 8 M. & W. 118; [Dwight v. Cutler, 3 Mich. 566. If the contract fails by accident, as, by reason of the destruction of the premises by fire, before the conveyance, but while the vendee is in possession; or goes off by consent, the tenant is liable for the use and occupation of the premises, so far as beneficial; Gould . Thompson, 4 Met. 224; or, at least, for the time he occupied, after the termination of the contract. ard v. Shaw, and Dwight v. Cutler, ubi supra. If the contract fails of performance by the fault of the vendee, who has taken possession, he is liable for an occupation rent. Smith v. Stewart, 6 John. 46; Bancroft v. Wardell, 13 John. 489; Vandenheuvel v. Storrs, 3 Conn. 203; Clough v. Hosford, 6 N. H. 234; Alton v. Pickering, 9 N. H. 495, 498; Ayer v. Hawkes, 11 N. H 148; Seabury v. Stewart, 22 Ala. 207; Davidson v. Ernest, 7 Ala. 817;

How

088. Smith v. Wooding, 20 Ala. 324; Patterson . Stoddard, 47 Maine, 355; Hough . Birge, 11 Vt. 109; Johnson v. Beauchamp, Dana, 124; Towne v. Butterfield, 97 Mass. 106; Dunham v. Townsend, 110 Mass. 440. This action does not lie against the vendor who remains in possession after a sale. Greenup v. Vernon, 16 Ill. 26.] Where there has been an actual demise this count cannot be maintained when no action would lie on the demise, as where the tenant has been evicted before rent has become due; Hall v. Burgess, 5 B. & C. 332; Morrison v. Chad. wick, 7 C. B. 266, 283; but see Smith v. Eldridge, 15 C. B. 236; and where there is a demise of premises by a mortgagor in possession, mere notice to the tenant by the mortgagee to pay rent to him will not make the occupier tenant to the mortgagee. Hickman v. Machin, 28 L. J. Ex. 310; [4 H. & N. 716;] Cuthbertson v. Irving, [4 H. & N. 742; 6 H. & N. 135,] and supra. It suffices to establish a holding or tenancy, without showing actual occupation by the defendant; his constructive possession is enough to support this count; Pinero v. Judson, 6 Bing. 206; How v. Kennett, 3 Ad. & E. 663; Wooley v. Watling, 7 C. & P. 610; but not unless there has been an actual entry by him; Lowe v. Ross, 5 Ex. 553; Towne v. D'Heinrich, 13 C. B. 892; aliter where defendant is assignee. How v. Kennett, supra. Where two persons enter into an agreement for a lease to them, an entry by one upon the premises may operate so as to render them both liable for use and occupation. Glen v. Dungey, 4 Ex. 61. But occupation by one of two executors, of premises held by the testator, will not make both liable. Nation v. Tozer, i Cr., M. & R. 172. One joint tenant holding over after expiration of term, will not make both liable in this form. Tancred v. Christy, 12 M. & W. 316; Draper v. Crofts, 15 M. & W. 166. One co-tenant of a house or a farm, who occupies the entirety, and takes all the profits, but without excluding his cotenant, is not impliedly liable to his co-tenant for use and occupation. Henderson v. Eason, 12 Q. B. 986; [Gowen v. Shaw, 40 Maine, 56. But when one tenant in common has received more than his share of the rents of the estate owned by them in common, in money, or as bailiff of the other, the latter may maintain an action for his share. Sargeant r. Parsons, 12 Ma-s 148; Sturdivant v. Smith, 29 Maine, 387; Munroe v. Luke, 1 Met. 453; Buck v. Spofford, 31 Maine, 34; Stinton v. Richardson, 13 M. & W. 17.] A husband cannot be sued in use and occupation to recover half a year's rent of premises occupied by his wife partly before and partly after marriage. Richardson v. Hall, 1 B. & B. 50. It lies though defendant underlet; Bull v. Sibley, 8 T. R. 327; Bertie v. Beaumont, 16 East, 33; or the premises were burnt, defendant being bound to repair, &c. Izon v. Gorton, 3 Bing. N. C. 501; Ibbs v. Richardson, 9 Ad. & E. 849; 1 P. & D. 618; Packer v. Gibbins, 12 Q. B. 421; Bennett v. Ireland, 28 L. J. Q. B. 48; [Baker v. Holtzapffel, 4 Taunt. 45; Davis v. Alden, 2 Gray, 313; Kramer v. Cook, 7 Gray, 550; Foster v. Peyster, 9 Cush. 247; Fowler v. Bott, 6 Mass. 63; Leavitt v. Fletcher, 10 Allen, 119, 121; Beach v. Gray, 2 Denio, 84; Pollard v. Shaaffer, 1 Dall. 210; Neidelt v. Wales, 16 Missou. 214; Wagner v. White, 4 Harr. & J. 564;] or the premises have become unfit for occupation, or for the purpose for which they were let; Hart v. Windsor, 12 M. & W. 68; Sutton v. Temple, Ib. 52; [Libbey v. Tolford, 48 Maine, 317; Foster v. Peyster, 9 Cush. 242, 247; Welles v. Castles, 3 Gray, 323, 326; Cleves v. Willoughby, 7 Hill, 83; Dutton v. Gerrish, 9 Cush. 94; Leavitt v. Fletcher, 10 Allen, 119, 121; Arden v. Pullen, 10 M. & W. 321; Moffatt v. Smith, 4 Comst. 126; Royce v. Guggenheim, 106 Mass. 201, 202;] aliter perhaps in the case of furnished apartments infested with bugs. Ib.; Smith v. Marrable, 11 M. & W. 5. [See Howard v. Doolittle, 3 Duer, 464; Dutton v. Gerrish, 9 Cush. 89, 94. In Royce v. Guggenheim, 106 Mass. 202, 203, Gray J. said: "The English authorities, ancient and modern, are conclusive, that even where the landlord is bound by custom or express covenant to repair, and by his failure to do so the premises become uninhabitable, or unfit for the purposes for which they were leased, the tenant has no right to quit the premises, or to refuse to pay rent according to his covenant, but his only remedy is by action for damages;" and he there cites the ancient and modern authorities relied upon.] So it lies against a corporation for actual occupation by them, though there be no contract under their seal. Finlay v. Bristol & Exeter Ry. Co. 7 Ex. 409; Lowe v. London & North Western Ry. Co. 18 Q. B. 632.