goes in discharge of damages, not of the covenant itself, for that remains (a). Therefore, where the plaintiff declared that in consideration that he would permit S. P. to enjoy a farm at C. for one year, the defendant covenanted to pay the rent of 721. per ann, and also 2001. then in arrear, and the breach assigned was the non-payment of the rent; the defendant pleaded that "before any cause of action did arise on the covenant, that it had been agreed between him and the plaintiff, that the plaintiff should take 30/. in discharge of all covenants, which the plaintiff had accepted;" on demurrer this plea was held to be a bad one, for at the time there was no covenant broken or damages sustained (a). Tender and refusal is also a plea to this action. The damages, not the debt, being for the most part the thing in demand by this action, tender and refusal need not in general be pleaded with an uncore prist (a). But where it is brought for rent, it being a debt ascertainable and certain, it is best to plead this plea with an uncore prist. Riens in arrière, or payment at the day, is a good plea to covenant for non-payment of rent. But levied by distress," cannot be pleaded; for that is a confession that it was not paid at the day, to which time the breach refers (b). Infancy is another plea in this action, which may or may not be good, according to circumstances. If the defendant have leave to plead double under the stat. 4 & 5 Ann. c. 16. he shall not be allowed to plead inconsistent pleas, as non est factum, and a condition precedent (c). But non-tenure, riens in arrière, and infancy may be pleaded together (d). Bankruptcy is no plea to a covenant to pay rent (e), for besides that the rent was not a debt due at the time of the bankruptcy, and so could not be proved under it, it is a settled principle, that the tenant's liability on his covenant to pay rent, subsists during the continuance of the lease, notwithstanding he may become a bankrupt and be deprived of all his property: but of the assignee of the tenant, otherwise (f). Where the plaintiff declared in covenant for seven quarters' rent, a plea shewing a surrender before the last four of the seven quarters' rent accrued, is bad on demurrer, because it does not go to the whole breach; and the breach is not entire, but part of it may be proved (g). (a) Esp. N. P. 308. (b) Ibid. 309. (e) Ibid. Gilb. R. 123. (d) Wilson v. Ames. 5 Taunt. 340. (e) Mayor v. Steward. 4 Burr. 2440 2444. Miles v. Auriol. 1 H. Bl. 433. (f) Hammond v. Toulmin. 7 T. R. 612616. Doe d. Michinson v. Carter. 8 T. R. 57-61. (g) Barnard v. Drithy. 5 Taunt. 27. In an action of covenant for rent, or for 51. an acre for ploughing meadow, the count being for a liquidated sum, money may be paid into Court (a). Where an action of covenant was brought upon a lease for nonpayment of rent, and not repairing, &c. the Court made a rule, that upon payment of what should appear to be due for rent, the proceedings as to that should be stayed, and as to the other breaches, that the plaintiff might proceed as he should think fit (b). So the Court have referred it to the master to compute what is due in covenant for non-payment of rent (c). Respecting the verdict and judgment in this action; in covenant for non-payment of rent at divers days which amounts to so much, if in the declaration the sum be miscast, it is not an error, but the plaintiff shall have a verdict for so much as is really in arrear (d). Judgment cannot be given on two covenants where one is bad; therefore where a general verdict was given, and entire damages were assessed, judgment was arrested (e. So if covenant be brought against two and there be judgment by default against one, and the other plead performance, which is found for him, the plaintiff shall not have judgment against the other, for on the whole the plaintiff has no cause of action (ƒ). In covenant for rent upon a lease by A. to B. the point in issue was whether C. (whose title both admitted) demised first to A. or to another person; C. is a competent witness to prove the point in issue, for the verdict cannot be given in evidence in any action which may afterwards be brought either by or against him (g). A bill in equity may be brought for rent, where the remedy at law is lost or become very difficult, and the Court will relieve in such case on the foundation of length of time (b). SECTION IV. Action of Debt for Use and Occupation. An action of debt will also lie, or of assumpsit for use and occupation, where rent is in arrear by a tenant who holds under a lease not by deed: as under a writing without deed or a parol demise. Of Debt.--First with respect to the action of debt. This action, we have before observed, is founded upon a contract, either express or implied, in which the certainty of the sum or duty appears, and the plaintiff is to recover the sum in numero and not in damages (i). (a) Esp. N. P. 310. (6) 1 Tidd's Pract. 565. (c) Anon. 1 Wils. 75. Byrom v. Johnson. 8 T. R. 410. Campion v. Crawshay. 6 Taunt. 356. (d) Thwaites v. Ashfield. 5 Mod. 213. (e) Anon. Cro. Eliz. 685. (f) Porter v. Harris. 1 Lev. 63. Where there was a tenant at will, with a rent reserved, the lessor might always have an action of debt for arrears of rent (a). But in declaring on a lease at will for rent arrear, the plaintiff must shew an occupation; for the rent being only due in respect thereof, it should appear to the Court when the lessee entered and how he occupied (b). An action of debt for use and occupation is not a local action (e). Against tenants at sufferance, it seems that an action of debt lay not for rent arrear, for the contract was determined, and they are in by wrong but in such cases there is now a special provision. Where a tenant holds over, for double value.-By stat. 4 G. 2. c. 28. s. 1. it is enacted, That if any tenant or tenants for life, or lives, or years, or persons coming in under or by collusion with them, hold over any lands, tenements, &c. after the determination of their estates, after demand made and notice in writing given for delivering the possession thereof by the landlord, or the person having the reversion or remainder therein, or his agent thereunto lawfully authorized, such tenant or tenants so holding over, shall pay to the person so kept out of possession at the rate of double the yearly value of the lands, tenements, &c. so detained, for so long a time as the same are detained; to be recovered by action of debt, whereunto the defendant or defendants shall be obliged to give special bail. Debt for double value on the above statute does not lie against a weekly tenant (d). For double rent.-Also, by stat. 11 G. 2. c. 19. s. 18. it is enacted, That in case any tenant or tenants shall give notice of his, her, or their intention to quit the premises, and shall not accordingly deliver up the possession thereof, at the time in such notice contained, the said tenant or tenants, his, her, or their executors or administrators, shall from thenceforth pay to the landlord double the rent or sum which he, she, or they should otherwise have paid. Upon these statutes it has been held, that With respect to the 4 G. 2. it is a remedial law; the penalty being given to the party aggrieved (e). The notice to quit may be before the expiration of the lease, or time of demise, or after (ƒ). The notice in writing is of itself a sufficient demand, within the words of the statute after demand made and notice in writing given" (e). In debt for double value under the stat. 4 G. 2. the plaintiff after stating a demise to the defendant's wife and her subsequent inter (a) Esp. N. P. 188. (b) Bellasis v. Burbrick. I Salk. 209. Eaton v. Jaques. Doug. 455-457 (c) Egler v. Marsden. 5 Taunt. 25. (d) Lloyd v. Rosbee. 2 Campb. 453. marriage with the defendant, alleged in the first count a notice to quit and demand of possession delivered to the defendant and his wife, and in the second count alleged a notice to quit and demand of possession delivered to the wife, previous to her intermarriage with the defendant; held that to support the second count the husband need not be joined in conformity; and that to sustain the action, it was not necessary to aver to have given notice to the husband subsequent to the intermarriage (a). A receiver appointed under an order of the Court of Chancery is "an agent lawfully authorized" within the words of the statute (a). One tenant in common may maintain this action for double value of his money; for where the injury is separate, tenants in common may have several actions (b). The administrator of an executor cannot sue for double the value of lands held over after notice to quit under a demise from the testator, according to 4 G. 2. c. 28. without taking out administration de bonis non, even though the tenant has attorned to her for most certainly, in any case in which the plaintiff means to make title, she must take out administration de bonis non (c). With respect to the stat. 11 G. 2. a parol demise from year to year is a sufficient holding within the statute so as to subject the tenant to the penalty of double rent, if he hold over after he has given notice to quit (d). The notice by the tenant to quit, need not be in writing: a parol notice to quit is sufficient (d). The acceptance of a (single) rent accrued since the notice, is, it seems, a waiver of the landlord's right to double rent, but does not necessarily imply that the tenancy should continue (e). By stat. 11 G. 2. c. 19. s. 12. it is enacted, That every tenant to whom any declaration in ejectment shall be delivered for any lands, &c. shall forthwith give notice to his or her landlord, or his bailiff or receiver, under the penalty of forfeiting the value of three years improved or rack-rent of the premises to the person of whom he or she holds; to be recovered by action of debt. Debt will lie for use and occupation generally, without setting forth the particulars of the demise, or where the premises lie (ƒ). Therefore, in a case, where to a count for use and occupation generally, the defendant demurred and assigned for causes that it did not set forth any demise of the premises, nor for what term they were demised nor what rent was payable, nor for what length of time the defendant held and occupied the premises, nor when the sum of 51. thereby supposed to be due became due, nor for what space of time; (e) Doe d. Cheny. v. Batten. Cowp. 243 (a) Lake v. Smith. I N. R. 174. (c) Tingrey v. Brown. I Bos. & Pul. 310. (d) Timmins v. Rawlinson. 3 Burr. 16031607. S. C. 1 Bl. R. 533. 246. (f) Wilkins v. Wingate, 6 T. R. 62. et in notes. 7 after argument, the Court of Common Pleas gave judgment for the plaintiff on that count (a). But if the particulars of a demise be alleged, they must be proved. Therefore in an action for double rent on the stat. 11 G. 2. c. 19. s. 18. where the declaration stated a lease for three years, but on the evidence it appeared, that the lease for three years was void under the statute of Frauds, and that the defendant was only tenant from year to year: though this was sufficient for the action, yet a lease for three years having been laid, and not proved, the plaintiff was nonsuited (b). After a landlord has recovered in ejectment against his tenant, he may maintain debt upon the stat. 4 G. 2. for double the yearly value of the premises during the term the tenant held over after the expiration of the landlord's notice to quit (c). A landlord declared in debt, first, for the double value, secondly, for use and occupation; the tenant pleaded nil debet to the first, and a tender of the single rent before action brought to the second count, and paid the money into Court, which the plaintiff took out before trial, and still proceeded: held that this was no cause of nonsuit upon the ground of such acceptance of the single rent being a waiver of the plaintiff's right to proceed for the double value; but that the case ought to have gone to the jury, and that the plaintiff's going on with the action after taking the single rent out of Court, was evidence to shew that he did not mean to waive his claim for the whole value, but to take it pro tanto: it seems that though the single rent were paid into Court on the second count, yet that if the plaintiff had not accepted it, but had recovered on the first count, the defendant would not have been entitled to have the money so paid in, deducted out of the larger sum recovered (d). Debt against an executor shall be in the detinet only; for he is chargeable no farther than he has assets (e). An administrator may be declared against as assignee in debt for rent, for the time that he enjoyed the land and was in possession; and the declaration may be in the debet and detinet (ƒ). An executor must bring debt in the detinet only, though this would be aided after verdict by the statute of Jeofails (ƒ). The Pleas.-In debt for rent on demise in writing without deed or by parol, the proper plea is non demisit (g). Entry and eviction is a good plea to this action; so as it be such a tortious entry and expulsion as to prevent an enjoyment of the premises. For if there were no beneficial occupation, there can be no ground for the action. (a) Wilkins v. Wingate, 6 T. R. 62. et in notes. (6) Bristow v. Wright. Doug. 464-468. 8 (e) Bull. N. P. 169. (f) Ep. N. P 217. Bull. N. P. 169. (g) Bull. N. P. 170. Wilson v. —. Hard. 332. |