common carrier, to be delivered to C., proof that B. asserted he had delivered the goods to C., whereas in truth C. had never received them, is not sufficient evidence of conversion to support trover against B. So in trover for a horse in an inn-keeper's possession, refusal is not a conversion, or evidence of a conversion, unless the plaintiff tender a sum sufficient for the keep of the horse, and the jury is to judge of the sufficiency of the tender* (26). But if A. put a horse to pasture with B., and agree to pay him a certain sum per week as long as he remains at pasture, and afterwards sell him to C., who brings trover against B., B. cannot detain the horse against C. the purchaser, until he be paid, but must have recourse to his action against A.

In trover against several defendants, all cannot be found guilty on the same count, without proof of a joint conversion by all.

Possession ought to be proved in the defendant himselfa, for delivery to a servant is not sufficient, if the goods do not come to the hands of the defendant, unless the servant be employed by his master to receive goods for him, and the goods are delivered in the way of his trade; as if a pawn be delivered to a pawnbroker's servant.

In trover for a bill of exchange, the damages are to be calculated according to the amount of the principal and interest due upon the bill at the time of the conversion.

x Anon. 2 Show. 161. per North, C. J. y Chapman v. Allen, Cro. Car. 271. But see Chase v. Westmore, B. R. Trin. 56 G. 3.

z Nicoll v. Glennie and others, 1 Maule & Selwyn, 588.

a Bull. N. P. 44.

b Jones v. Hart, Salk, 441.

c Mercer v. Jones, 3 Camp. N. P. C. 477.

(26) "If a man brings his horse to an inn, and leaves him there in the stable without any special agreement as to what he is to pay, the innkeeper is not bound to deliver the horse until the owner has defrayed his charge for the horse; but he may justify the detainer of the horse for his food and keeping; and after the horse has eat as much as he is worth, the innkeper, upon a reasonable appraisement, may sell him, and it is a good sale in law. But if there be a special agreement, that the owner of the horse shall pay a certain sum for the keep, in that case, although the horse eat out double his price, the innkeper cannot sell him." Per Popham, C. J. Yelv. 67. But see Chase v. Westmore, ub. sup. and see also Jones v. Pearle, Str. 556, where it was holden, that an innkeeper cannot sell the horse of his guest, except in the city of London.

Of staying the Proceedings-Costs-Judgment.

Formerly, if the defendant was desirous of staying the proceedings against him, by bringing the subject matter of the action into court, and undertaking to pay the costs incurred, the court refused to listen to the application, unless the action was brought for money, observing, that they had not any warehouse for the purpose. But of late years it has been usual to grant applications of this kind, when a proper case has been brought before the court (27). But not where it appears that the goods are altered, and of less value than they were when taken (28).

Costs.

The action of trover not being within the stat, 22 and 23 Car. 2. c. 9. the recovery of damages to any amount will entitle the plaintiff to costs by virtue of the stat. of Gloucester.

The stat. 8 & 9 W. 3. c. 11. s. 1. which gives costs to persons who are improperly made defendants in actions or plaints of trespass, assault, false imprisonment, or ejectio firma, does not extend to actions of trover.

Judgment.

The judgment in this action is for the recovery of damages only, and in this respect it differs from the judgment in the analogous action of detinue, which is for the recovery of the goods in question, or the value thereof, if the plaintiff cannot have the goods.

(27) See Pickering v. Truste, 7 T. R. 53. where this doctrine was extended to trespass for taking goods.

(28) Where the goods are ponderous, the court will grant a rule to shew cause, why, on the delivery of the goods to the plaintiff, and on payment of costs, the proceedings should not be stayed. Cooke v. Holgate, C. B. Barnes, 281. ed. 4to. Watts v. Phipps, B. R. E. 7 G. 3. Bull. N. P. 49.

CHAP. XLI.

USE AND OCCUPATION.

FORMERLY an action of assumpsit for rent arrear upon a parol lease for years could not have been maintained, either pending, or after the expiration of the term, because it was considered as a real contract: the only remedies were by distress or action of debt. But on a mere promise to pay a sum of money, or so much as the plaintiff deserved to have, in consideration of the plaintiff's permitting the defendant to occupy'lands, &c. an action of assumpsit might have been maintained by the common law. In this case the objection as to the contract being real, was removed by considering the permission to occupy as not amounting to a lease, and the mere promise to pay a sum of money in consideration of such permission, as not amounting to a reservation of rent.

In order, however, more effectually to obviate the difficulties which occurred in the recovery of rent, where the demise was not by deed, it was enacted by stat. 11 G. 2. c. 19. s. 14. "that landlords, where the agreement is not by deed, may recover a reasonable satisfaction for the lands, tenements, or hereditaments, held or occupied by the defendant, in an action on the case, 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 was reserved shall appear, the plaintiff in such action shall not therefore be nonsuited, but may make use thereof as an evidence of the quantum of the damages to be recovered."

It will be observed, that under this statute, a landlord

a Brett v. Read, Sir W. Jones, 329. Cro. Car. 343.

b 1 Rol, Abr. 7. (O.) pl. 1.

c Ib. pl. 2. see also Green v. Harrington, Hob. 284. Hutt. 34. S. C.

d Dartual v. Morgan, Cro. Jae. 598. Chapman v. Southwicke, 1 Lev. 204.

Johnson v. May, 3 Lev. 150. Adjudged on demurrer.

e How v. Norton, 1 Lev. 179. Mason v. Welland, Skia. 238.242.

f Per Eyre, C. J. delivering the opinion of the Court in Naish v. Tatlock, 2 H. Bl. 323.

who has rent owing to him is allowed to recover, not the rent, but an equivalent for the rent, a reasonable satisfaction for the use and occupation of the premises, which have been holden and enjoyed under the demise, by the action for the use and occupation: and it is provided on his behalf, that if the demise be produced against him, it shall not defeat his action, as it would have done before the statute; but the fixed rent shall only be used as a medium, by which the uncertain damages to be recovered in this form of action shall be liquidated. A reasonable satisfaction for the use and occupation is the thing intended to be given; the form of action marked out (being enlarged by a necessary construction, so as to be allowed to be maintained without an express promise) is the proper form in which such reasonable satisfaction is to be recovered; but the reasonable satisfaction which in its own nature must apply to something specific by which it can be estimated, being here given for use and occupation, and for nothing else, it is a remedy which, in its own nature, is not co-extensive with a contract for rent, nor does it seem to have been within the scope and purview of the statute to make this remedy co-extensive with all the remedies for the recovery of rents claimed to be due by the mere force of the contract for rent. The statute meant to provide an easy remedy in the simple cases of actual occupation, leaving other more complicated cases to their ordinary remedy.

Since this statute, the action for use and occupation has been resorted to as one of the most convenient remedies for the recovery of rent arrear, in cases to which the statute applies. The plaintiff usually declares in the form of a general indebitatus assumpsit with a quantum meruit (1). Hence the declaration is very concise. It has been, however, the practice to state in the declaration, the parish in which the land, messuage, &c. occupied by the defendant, are situated; and plaintifs have very often been nonsuited for a variance between the parish mentioned in the declaration and that proved in evidence. But it is conceived, that, as in the case of King v. Fraser, 6 East, 348. and ante p. 579. it was determined, that in debt for use and occupation there was not any necessity for naming the parish, because there was not any locality in the action so in indebitatus assumpsit the like doctrine would

:

g See Wilson v. Clark, 1 Esp. N. P. C. 273, and Guest v. Caumont, 3 Camp. N. P. C. 235.

(1) As to the action of debt for use and occupation, see ante, tit. Debt, p. 579.

be laid down, for the same reason. It may be prudent, therefore, in all cases, to omit naming the parish, in order to avoid any objections on the ground of a variance.

It will be proper to remark, that the statute provides a remedy, in such cases only, where the agreement is not by deed; but it has been holden, in one case1, where the defendant held under a mere agreement for a lease, which did not amount to an actual demise, that the plaintiff might maintain an action for use and occupation, although such agreement was by deed.

In an action for use and occupation of apartments in the plaintiff's house during half a year*, it appeared that the rent was claimed in consequence of the defendant having neglected to give a notice to quit: the defence set up was, that the plaintiff, after the defendant had quitted, had put up a bill at the window; but Lord Kenyon, C. J. expressed an opinion, that the defence insisted on would afford no answer to the plaintiff's action. It was for the benefit of the defendant that the apartments should be let, nor would he infer from the circumstances of the party's endeavouring to let them, that the contract was put an end to; that there must be other circumstances to shew it, and not merely an act of so equivocal a kind'. That as the plaintiff had proved the taking the premises, and the payment of the rent, it was incumbent on the defendant to prove that the tenancy was determined, by express evidence. The defendant thereupon proved, that a notice to quit had been given, in which the plaintiff had acquiesced, and obtained a verdict.

A tenancy from year to year created by parol, is not determined by a parol license from the landlord to the tenant to quit in the middle of a quarter, and the tenant's quitting the premises accordingly. The statute of frauds requires a deed or note in writing, or a surrender by operation of law.

66

re

The words of the statute are, that the plaintiff may cover a reasonable satisfaction for the lands, &c. held or occupied by the defendant, in an action for use and occupation." An occupation by the tenant of the defendant, is, as far as respects the plaintiff, an occupation by the defendant himself; hence, if A. agree to let his lands to B., who permits C. to occupy them, A. may recover the rent in an action against B. for the use and occupation. So rent accruing after