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tenancy, notwithstanding his bankruptcy and the occupation of the assignees during part of the time for which the rent accrued. Boot v. Wilson, 8 East, But under the Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), ss. 43, 44, 54, 169, the bankrupt's interest in land vests in the trustee on his appointment. Sect. 55 (1) provides that when any property acquired by the trustee consists of land of any tenure burdened with onerous covenants, the trustee, notwithstanding that he has endeavoured to sell or has taken possession of such property, or exercised any act of ownership in relation thereto, may, within three months of the first appointment of a trustee, or where the property shall not have come to the knowledge of the trustee within one month after such appointment, then within two months after he first became aware thereof, by writing under his hand, disclaim such property; (2) the disclaimer operates to determine, as from its date, the rights, interests, and liabilities of the bankrupt in or in respect of the property disclaimed, and to discharge the trustee from all liability in respect thereof, as from the date when the property vested in him, but does not, except so far as is necessary for this purpose, affect the rights or liabilities of any other person. By sect. 55 (3) and Bky. R., 1883, r. 232, the disclaimer of a lease without the leave of the court is void, except in the cases enumerated in that rule. Sect. 55 (4) imposes restrictions on the power of disclaimer. Sect. 55 is cited in extenso, and the cases thereon collected, post, Part III., sub tit. Actions against Trustees of Bankrupts. The above sections will set at rest most of the questions which arose under the former acts, and which are discussed in the notes to Auriol v. Mills, 1 Smith's L. C., 6th ed.

Where a tenant, from year to year, assigned all his personal property to the defendant for the benefit of his creditors, and the defendant executed the deed and acted under it, it was held that he was liable for the rent unless he repudiated the tenancy. White v. Hunt, L. R., 6 Ex. 32.

Use and occupation does not lie against a husband for a half-year's rent due in respect of premises occupied for part of that time by his wife before marriage, and which continued to be occupied by her for a short time after her marriage. Richardson v. Hall, 1 B. & B. 50. Where one of two executors of a deceased tenant for years enters into the premises, such entry does not enure as the entry of both so as to make them both liable in an action for use and occupation. Nation v. Tozer, 1 C. M. & R. 172. And, when one only of two joint lessees holds over the other cannot be charged for rent. Draper v. Crofts, 15 M. & W. 166. But, where two persons sign an agreement to become tenants, and one enters under it, it may be presumed that he entered for both; and use and occupation against both will lie. Glen v. Dungey, 4 Exch. 61. Where premises were held by parol under two trustees, one of whom died, and the lessee continues to hold, the surviving trustee may sue in his own right, and not as survivor. Wheatley v. Boyd, 7 Exch. 20; 21 L. J., Ex. 39.

If, after the determination of a lease, the tenant holds over and pays rent, such evidence is conclusive evidence of a tenancy; and he will be liable in an action for use and occupation for the time he occupies the premises. Bishop v. Howard, 2 B. & C. 100; and see Bayley v. Bradley, 5 C. B. 326, ante, p. 306. So, an executor of a tenant from year to year, holding on and paying rent, will hold on the terms of the former demise, and be personally liable. Buckworth v. Simpson, 1 C. M. & R. 834. But, where a tenant from year to year, after the expiration of his landlord's title, continued in possession for one quarter, and paid rent for that quarter to the party entitled in reversion, but quitted at the end of it, the payment is not evidence of a tenancy for more than the quarter, and the reversioner cannot sue the tenant for use and occupation beyond the quarter. Freeman v. Jury, M. & M. 19; Jenner v. Clegg, 1 M. & Rob. 213.

As to the power of a corporation to sue, and its liability to be sued for

Defendant's Occupation.

309

use and occupation, vide post, Part III., Actions by and against CompaniesContracts by Corporations.

We have seen that it is not necessary that there should be an express contract creating the relation of landlord and tenant between the parties: the relation may be implied. Thus, where the defendant has entered under a contract for sale which ultimately goes off, and his occupation has been a beneficial one, it seems that he may be liable in this action; Hearn v. Tomlin, Peake, 191; but, only for the period since the putting an end to the contract; Howard v. Shaw, 8 M. & W. 118; see Crouch v. Tregonning, L. R., 7 Ex. 88; and he is not liable for rent at all, if the sale goes off for want of title, and there is no agreement about paying for such occupation. Winterbottom v. Ingham, 7 Q. B. 611. And, it has been held that the defendant may rebut an implied agreement to pay for use and occupation by showing hat he entered as vendee under a parol agreement, and that a payment he then made was for purchase money and not rent. Corringan v. Woods, 15 W. R. 318; H. T. 1868, Ir. Ex. But, in a case where the defendant, vendor, was under contract to sell the premises, but subsequently gained possession of them from a sub-vendee by falsely representing that the original contract was at an end, he was held liable to the sub-vendee during such possession for use and occupation, though at that time the defendant had the legal estate. Hull v. Vaughan, 6 Price, 157. So, where defendant took possession under an agreement that plaintiff, the landlord, should put the premises in repair, and that rent should not be payable till the completion of the repairs, and he quitted after six months in consequence of nonepair; yet this was held evidence from which a jury might infer an agreement to pay ad interim, on the footing of a quantum valebant. Smith v. Eldridge, 15 C. B. 236. Where, under an agreement of purchase, the plaintiffs were to receive the rents and profits of the premises from a given day, and to pay the defendants interest on the purchase money from that day, the plaintiffs were entitled to recover the occupation value of the premises although there was no tenancy between the parties. Metropolitan Ry. Co. v. Defries, 2 Q. B. D. 189, 387, C. A.

This action does not lie where the defendant enters under an agreement for a lease which the plaintiff cannot grant for want of title. Rumball v. Wright, 1 C. & P. 589. B. entered into a building agreement with A., which settled the rent to be reserved by the leases of future houses to be built under A., and provided that certain annual rents or sums should be payable to A. in the interim. B. assigned the agreement to C. and C. to D. held, that C. could not be sued for the reserved annual sums after his assignment to D; for that neither B. nor C. became yearly tenants by the payments of the above sums, no estate having passed under the agreement; and the annual sums being only collateral sums, independent of any tenancy, for which B. alone was liable on the contract. Camden, Ms. of, v. Batterbury, 5 C. B., N. S. 808; 28 L. J., C. P. 187, Ex. Ch. ; 7 C. B., N. S. 864; 28 L. J., C. P. 335. But, B. is liable to pay such sums though the leases to be granted exceed three years, and the agreement is not under seal. Adams v. Hagger, 4 Q. B. D. 480, C. A. If the plaintiff is a co-director with the defendant of a company which occupies the plaintiff's premises, he cannot sue defendant on an implied contract. Chadwick v. Clarke, 1 C. B. 700. One co-tenant, who occupies a house alone, but without excluding his co-tenants, is not therefore liable to pay rent to them; McMahon v. Burchell, 2. Phill. 127; and one tenant of a farm, who takes all the profits, is not impliedly liable to his co-tenants for use and occupation. Henderson v. Eason, Ib. 308, and 12 Q. B. 986.

Where A. agreed by letter with B. to take a lease of B.'s iron ore for forty years at a certain rent, engaging to work the veins in a certain manner;

it was held that this was not a mere licence, but a right constituting an hereditament within 11 Geo. 2, c. 19, s. 14, in respect of which use and occupation would lie against A., who had worked under it. Jones v. Reynolds, 4 Ad. & E. 805. So, this action lies against one who, under a written agreement or licence, has used a fishery; Holford v. Pritchard, 3 Exch. 793; or, who has exercised a right of sporting. See Thomas v. Fredricks, 10 Q. B. 775, and Adams v. Clutterbuck, 10 Q. B. D. 403, cited post, p. 314.

Damages.] Where a rent is mentioned in the lease or agreement, such rent will be the measure of damages, though the lease be void by the Statute of Frauds. De Medina v. Polson, Holt, N. P. 47. But, where there is no express agreement as to rent, or where the terms of the agreement have been so far departed from that the stipulated rent is no just criterion of value, the value of the premises must be proved; Tomlinson v. Day, 2 B. & B. 680; and though a tenant, who holds over after the end of his term, is presumed to hold at the old rent, yet where a new tenant is substituted by consent under an agreement afterwards abandoned, no such inference arises, and the jury must find the real annual value. Thetford, Mayor of, v. Tyler, 8 Q. B. 95.

Plaintiff's title expired.] Although the defendant cannot impeach_the title of the plaintiff under whom he holds (ante, p. 303), yet he may show that it has expired. Holmes v. Pontin, Peake, 99; Gravenor v. Woodhouse, 1 Bing. 43. So, he may show ouster of the plaintiff's title by sequestration. Powell v. Hibbert, 15 Q. B. 129. Where the defendant had come in under the plaintiff, it was held not competent for him to show that the plaintiff's interest had been forfeited to the lord of the manor, to whom the defendant had since paid rent upon notice and demand made, unless he has expressly renounced the plaintiff's title, and commenced a fresh holding under the new landlord. Balls v. Westwood, 2 Camp. 11. But, it is not necessary for the tenant to surrender or suffer eviction before he refuses to pay rent. It will be enough if he has paid it to a bona fide claimant really entitled to the premises, under whom he has made a new arrangement and commenced a fresh tenancy. Mountnoy v. Collier, 1 E. & B. 630; 22 L. J., Q. B. 124. See post, Replevin,-Evidence on denial of tenancy. But, a mere claim of rent is no defence at all, unless the defendant has actually given up possession, or has paid the rent to the owner of the legal estate under compulsion, so as to be able to show an eviction. Emery v. Barnett, 4 C. B., N. S. 473; 27 L. J., C. P. 216; Hickman v. Machin, 4 H. & N. 716; 28 L. J., Ex. 310; Wilton v. Dunn, 17 Q. B. 294; 21 L. J., Q. B. 60. As to what amounts to an eviction, vide infra.

Defendant's occupation determined.] As to notice to quit see post, Action for recovery of possession of land by landlord. An agreement that on the tenant's quitting the rent shall cease, and an acceptance of the key by the landlord, or a letting of the premises by him to a third person, is (as already stated, ante, pp. 306, 307) a sufficient defence. Whitehead v. Clifford, 5 Taunt. 518; Hall v. Burgess, 5 B. & C. 332; Grimman v. Legge, 8 B. & C. 324; Walls v. Atcheson, 3 Bing. 462. But, delivery of the keys by an agent of the defendant to a servant at the plaintiff's house, is not alone sufficient to prove an acceptance by the plaintiff. Harland v. Bromley, 1 Stark. 455. Accord. Cannan v. Hartley, 9 C. B. 634; 19 L. J., C. P. 323.

A tenancy from year to year is assignable by deed, and the privity of estate between the landlord and tenant is thereby severed. Allcock v. Moorhouse, 9 Q. B. D. 366, C. A., cited ante, p. 305.

Eviction.] An eviction by the landlord is a defence, as it determines the occupation. Prentice v. Elliott, 5 M. & W. 606. And, where the premises

Eviction.-No Beneficial Occupation.

311 are let at an entire rent, an eviction from part, if the tenant quits the residue, is a complete defence. Smith v. Raleigh, 3 Camp. 513. It has been said that, if the tenant continues in possession of the residue, he is liable pro tanto on a quantum meruit. Stokes v. Cooper, Id. 514, n. But, it is now settled that eviction from any part by the lessor, is a suspension of the whole rent while the eviction lasts. Co. Litt. 148 b.; 2 Wms. Saund. 204, (2) ; Walker's case, 3 Rep. 22 b.; Reeve v. Bird, 1 C. M. & R. 31, 36, per Parke, B.; Neale v. Mackenzie, 1 M. & W. 747, Ex. Ch.; Morrison v. Chadwick, 7 C. B. 266; Upton v. Townend, 17 C. B. 30; 25 L. J., C. P. 44. Eviction from part of the demised premises by a stranger, by title paramount, does not suspend the whole rent, but is merely a ground for its being apportioned. Walker's case, supra; 1 Wms. Saund. 204 a, (ƒ). See also Stevenson v. Lambard, 2 East, 575.

A mere trespass is not an eviction; Hodgskin v. Queenborough, Willes, 130, n. (b); B. N. P. 177; Newby v. Sharpe, 8 Ch. D. 39, C. A.; nor, is a demand of rent by an elegit creditor who had no right to eject the defendant. Poole, Mayor, &c., of, v. Whitt, 15 M. & W. 571. But, a threat of expulsion by a person entitled to possession, and a consequent attornment to him, are equivalent to expulsion. Semb. S. C. So, a demand by a person lawfully entitled and a giving up possession to him may amount to eviction Semb. Carpenter v. Parker, 3 C. B., N. S. 206; 27 L. J., C. P. 78. An eviction of the under-tenant is an eviction of the tenant. Burn v. Phelps, 1 Stark. 94. But, a forcible expulsion of a man put into the plaintiff's house to keep possession for the defendant (tenant), and who was an unfit person, was held no eviction; the jury finding that the plaintiff did not intend to dispossess the defendant. Henderson v. Mears, 28 L. J., Q. B. 305. Where a lease of mines provided that the lessee should, jointly with the lessor, have the use of a railroad upon the demised premises, it was held that an expulsion from this railroad did not amount to an eviction, as the rent issued out of the land demised, and not out of the easement to use the railway. Williams v. Hayward, 1 E. & E. 1040; 28 L. J., Q. B. 374. See further, as to what amounts to an eviction; Dunn v. Di Nuovo, 3 M. & Gr. 105; Upton v. Townend, supra; Wheeler v. Stevenson, 6 H. & N. 155; 30 L. J., Ex. 46; Pellatt v. Boosey, 31 L. J., C. P. 281.

Defendant treated by plaintiff as a trespasser.] If the landlord has treated the tenant as a trespasser, he cannot afterwards recover against him in this action. Thus, if he had recovered against him in ejectment, he could not sue, in this action, for the rent accruing after the date of the writ; for, by suing for the tort, he precluded himself from suing ex contractu. Birch v. Wright, 1 T. R. 378; Bridges v. Smyth, 5 Bing. 410. And, the mere bringing of an ejectment for a forfeiture will prevent the plaintiff from suing for rent subsequently due; for this determines the lease. Jones v. Carter, 15 M. & W. 718; Grimwood v. Moss, L. R., 7 C. P. 360; and see Toleman v. Portbury, L. R., 7 Q. B. 344, Ex. Ch., and Dendy v. Nicholl, 4 C. B., N. S. 376; 27 L. J., C. P. 220.

No beneficial occupation.] In the case of a ready-furnished house there is an implied condition that it shall be reasonably fit for occupation when the tenancy is to begin; and if the house be then uninhabitable by reason of its being infested with vermin; Smith v. Marrable, 11 M. & W. 5; Campbell v. Wenlock, Ld., 4 F. & F. 716; or of defective drainage; Wilson v. Finch Hatton, 2 Éx. D. 336; the tenant may give up occupation, and then ceases to be liable to pay rent. The principle of these cases has not been extended to the case of an unfurnished house. Hart v. Windsor, 12 M. & W. 68, 86; Manchester Bonded Warehouse Co. v. Carr, 3 C. P. D. 507. And, the tenant

is, notwithstanding the destruction of the house demised, liable to pay the rent reserved. S. C.; Baker v. Holtpzaffell, 4 Taunt. 45. Non-compliance of the landlord with a covenant to do repairs, whereby the premises have become unfit for profitable occupation, and that the defendant has quitted them on that account, is no defence. Surplice v. Farnsworth, 7 M. & Gr. 576; Sutton v. Temple, 12 M. & W. 52; and some reported Nisi Prius cases contra, are not law.

See

Payment.] By 4 Anne, c. 16, s. 10, payment of rent by the defendant to his lessor, before he had notice of an assignment of the premises by him to the plaintiff, is a good defence. Cook v. Moylan, 1 Exch. 67-71. But, payment in advance to the lessor before the rent day affords no defence at law, as against the assignee, if the defendant had notice of the assignment before the rent day. De Nicholls v. Saunders, L. R., 5 C. P. 589. Clun's case, 10 Rep. 127; Cromwell, Ld., v. Andrews, Cro. Eliz. 15. If he had not notice before the rent day, the advance then becomes payment. Cook v. Guerra, L. R., 7 C. P. 132. As to what amounts to notice, vide S. C. Payment of property tax by the tenant, which the landlord is bound to allow him, under 5 & 6 Vict. c. 35, Sched. A., No. IV., Rule 9; 16 & 17 Vict. c. 34, s. 40; 27 & 28 Vict. c. 18, s. 15; and 46 & 47 Vict. c. 10, Part II., is, in effect, payment by the tenant of so much of the next rent due by him. See Denby v. Moore, 1 B. & A. 123, 129, 130. It would, however, now seem necessary to plead the defence specially, as it would otherwise be likely to take the plaintiff by surprise. Rules 1883, O. xix., r. 15. The tax must be deducted from the next payment of rent thereafter to be made by the tenant, and if the tenant do not so deduct the tax, he cannot afterwards sue the landlord for it as money paid. Denby v. Moore, supra, Cumming v. Bedborough, 15 M. & W. 438. But, the tenant can enforce an agreement by the landlord to repay him the tax, if he pay the rent in full. Lamb v. Brewster, 4 Q. B. D. 220, 607, C. A. These statutes only allow the tenant to deduct the tax payable on the rent reserved, and not on the full improved value of the premises. Watson v. Horne, 7 B. & C. 286; Smith v. Humble, 15 C. B., N. S. 321. The tax cannot be deducted unless it has been paid by the tenant; see Pocock v. Eustace, 2 Camp. 181; Ryan v. Thompson, L. R. 3 C. P. 144, cited post, Action for illegal distress-Defence. The tenant may also, by way of payment, show payment of rates which he may deduct from his rent under statutes allowing such deduction to be made, e.g., 32 & 33 Vict. c. 41, s. 1; the Public Health Act, 1875 (38 & 39 Vict. c. 55), s. 214; the Rating Act, 1874 (37 & 38 Vict. c. 54), ss. 5, 6, 8, 9. See on this last cited Act, Chaloner v. Bolckow, 3 Ap. Ca. 933, D. P. With regard to payment of an amount equivalent to the rent to the superior landlord, under compulsion or threat of distress, or payment of any other charge on the land, see post, Replevin-Denial of rent being in arrear.

Statute of Limitations.] The Statute of Limitations is a good defence in an action against a person who has been tenant from year to year, but who has not, within the last six years, occupied the premises, paid rent, or done any act from which a tenancy can be inferred; though no notice to quit has been given. Leigh v. Thornton, 1 B. & A. 625.

Illegality.] It is a good defence that the premises have been knowingly let by the plaintiff to the defendant for an immoral purpose; Crisp v. Churchill, cited 1 B. & P. 340; or, for the delivery of blasphemous lectures; see Cowan v. Milbourn, L. R., 2 Ex. 230; or, the occupation knowingly allowed to continue for such purposes. Jennings v. Throgmorton, Ry. & M. 251. Where a lessee assigned the lease, knowing the house was to be continued to be used as a brothel, it was held he could not enforce the covenant

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