The statute of Limitations, 21. J. 1. c. 16. which enacts, That all actions for rent in arrear, or grounded on any lending or contract without specialty, must be brought within six years, is another good plea: and such plea must conclude with a verification, as when pleaded to an action of assumpsit (a).

As to the plea of infancy, see ante C. IV.

So a plea of set-off is allowed: and also a tender and refusal. So a release.

Where to debt for rent on a demise of three rooms, the plea was, that the plaintiff demised the said three rooms and another room, and that he entered into the other room, but did not traverse the demise of the three rooms only, it was held to be bad for want of such a traverse (b).

It is now settled that in an action of debt on a simple contract, as this is, the plaintiff may prove and recover a less sum than he demanded by his writ (c).

SECTION V. Of Assumpsit for Use and Occupation. Another remedy for the recovery of rent, where the demise is not by deed, lies by action of assumpsit for use and occupation.

In an action for use and occupation, the property tax will not be deducted at nisi prius from the rent due, if not paid before the trial; but where it was paid before action brought the deduction was allowed (d).

At common law it was holden, that assumpsit would lie for rent on an express promise, but not an implied promise, and that such express promise must have been made at the same time with the lease (e). But now,

The stat. 11 G. 2. c. 19. s. 14. in order to obviate some difficulties that many times occur in the recovery of rent, where the demises are not by deed, enacts, That it shall be lawful for the landlord, where the agreement is not by deed, to recover a reasonable satisfaction for the lands, tenements, 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.

The action for use and occupation is founded on a contract; and

(a) Duppa v. Mayo. 1 Saund. 283. n. 2.
(b) Salmon v. Smith. I Saund. 206.
() M Quillin v. Cox. 1 H. Bl. R. 249.

(d) Pocock v. Eustace. 2 Camp. 181. Baker v. Davis. 3 Campb. 474.

(e) Bull. N. P. 138.

unless there were a contract express or implied, the action cannot be maintained (a).

A husband is not liable, in the form of action, to pay for the enjoyment of a house by his wife, dum sola (b).

If there be an agreement by deed to demise, but the words do not amount to an actual demise, an action for use and occupation is maintainable (c).

But a written agreement, though coming out of the possession of the opposite party, cannot be given in evidence in any action unless it be legally stamped.

Therefore where counsel were about to ask a party as to his occupation and payment of rent to the defendant in an ejectment, he was stopped by Lord Kenyon, who observed, that the occupation had been under an agreement in writing, and the rent had been paid in pursuance of it; if, said his Lordship, the agreement cannot be given in evidence, you cannot enquire as to the occupation; the party might have been in possession by licence and permission of the defendant, and not as tenant (d).

A. agreed in writing to pay the rent of certain tolls, which he had hired, to the treasurer of the commissioners :" held that no action for the rent could be maintained in the name of the treasurer; for the contract is to pay the commissioners through the medium of their officer (e).

Where there is a note in writing expressing the quantum of rent or the duration of the term, evidence of a parol agreement to annul or substantially to vary the written contract, is inadmissible; else the statute of Frauds would be eluded, and the same uncertainty introduced by suppletory or explanatory evidence, which that statute has suppressed in respect to the principal object (f).

Thus, where there was a written agreement that a lease should be let of a house at 261. per ann. on which an action was brought for use and occupation; the defendant paid 26. into Court. At the trial, the plaintiff offered to give parol evidence, that beside the 261, per ann. the defendant was to pay the ground landlord 27. 12s. 6d. but this evidence was rejected; particularly as no evidence was offered of the actual payment of such rent (ƒ).

But where a lessee took a farm under an agreement which he never signed, and the terms of which, in a natural point, the lessor failed to fulfil. In an action for use and occupation of the farm, it was

(a) Birch v. Wright. 1 T. R. 378-387.
(b) Richardson v. Hall. 1 B. & B. 50.
(c) Elliot v. Rogers. 4 Esp. R. 59.

(e) Pigott v. Thompson. 3 Bos. & Pul. R.

147.

(f) Preston v. Merceau. 2 Bl. R. 1249

(d) Doe d. St. John v. Hae. 2 Esp. R. Meres v. Ansell, 3 Wils. 275-6. 724-1249.

held that the jury might ascertain the value of the land, without regarding the amount of the rent received by the agreement (a).

Parol evidence, indeed, of a verbal agreement cannot be received where it appears that it was reduced to writing: and this even where the written agreement, for want of being stamped, or for other informality or defect, was inadmissible (b): for parol evidence cannot be admitted to vary the substance of a written agreement. With respect to collateral matters, however, it is otherwise; for a person may shew by parol proof who is to put a house in repair, or the like, concerning which nothing is said in the written agreement. So, it may be admitted to explain a deed or other instrument; or to prove other considerations than those expressed in a deed (c).

But where an agreement in writing, unstamped, for the letting of a tenement at a certain rent, was lost, it was held that parol evidence of its contents was not admissible, for the sake of proving thereof the value of the tenement (d).

Where, however, upon the letting of premises to a tenant, a memorandum of agreement was drawn up, the terms of which were read over and assented to by him, and it was then agreed that he should, on a future day, bring a surety and sign the agreement, neither of which he ever did; it was held that the memorandum was not an agreement, but a mere unaccepted proposal, and that the terms of the letting, therefore, might be proved by parol evidence (e).

This action being founded on a contract either expressed or implied, it is a general rule, that wherever the defendant uses or enjoys the premises by permission of the plaintiff [as his tenant] he shall be liable in this action (ƒ).

So, this action may be maintained by a grantee of an annuity, after a recovery in ejectment against a tenant who was in possession under a demise from year to year, for all rent in his hands at the time of the notice by the grantee, and down to the day of the demise: but not afterwards (g).

So after a recovery of possession of the premises, the plaintiff is entitled to the profits for use and occupation, to the time of the demise, but not after, if he thinks fit to sue for them (b).

So also if a landlord in the middle of a quarter accepts from his tenant the key of the house demised, under a parol agreement that upon her then giving up the possession, the rent shall cease, and he never afterwards occupies the premises, he cannot recover in an

(a) Tomlinson v. Day. 2 B. & B. 680. (6) Curry v. Edensor. 3 T. R. 524-528. Rex v. St. Paul, Bedford. 6 T. R. 452.

(c) Wilson v. Poulter. 2 Str. 794 in notis. Rex. v. Laindon. 3 T. R. 379.

(e) Doe d. Bingham v. Cartwright. 3 B. & A. 326.

(ƒ) Bull v. Sibbs. 8 T.R. 327.

(g) Birch v. Wright. 387.

(b) Doe d. Cheney v. Batten. Cowp. 246.

(4) Rex. v. Castle Morton. 3 B. & A. 588. Birch v. Wright, I T. R. 387.

A A

action for the use and occupation of the house, for the time subsequent to his accepting the key (a).

So likewise where A. by parol let a house to B., who underlets to C., and A. with B.'s assent accepts C. as his tenant, and receives rent from him, A. cannot afterwards recover against B., since the privity of estate is destroyed (b).

But where A. having an equitable title to a house, under an agreement for the lease of it, permits his mistress to occupy it, and it is afterwards agreed between them that she shall take up the bills which he has accepted, in part payment of the purchase-money, and that the lease shall be assigned to her; and she remains in possession, and does not take up the bills, and marries the defendant, who occupies the house; A. cannot recover against the defendant for use and occupation (c).

The defendant in 1799 agreed to take the premises for seventeen years at a yearly rent, and entered. In 1813 the plaintiffs contracted to sell the fee to A., who thereupon bought from the defendant the residue of his term, and without the assent of the plaintiffs, put in a new tenant, who occupied for two years. The contract for sale of the fee was then rescinded. Held, that the plaintiffs were entitled to recover from the defendant, in an action for use and occupation, the rent from 1813 to the end of the original term, as there had been no surrender in writing of his interest, and as the plaintiffs had not assented to the change of tenancy (d).

An action for use and occupation and an ejectment, when applied at the same time, are totally inconsistent: for in one, the plaintiff says that the defendant is his tenant, and therefore he must pay him rent; in the other, he says that he is no longer his tenant, and therefore must deliver up the possession. He cannot do both (e).

This action therefore being founded on a contract express or implied, will not lie where the possession of the tenant is adverse and tortious; unless indeed the plaintiff ceases to consider it as such, by waiving the tort, and recurring to his remedy by this action on the contract (€).

The defendant in this action, as in all actions for rent, is not admitted to call in question the plaintiff's title to the premises; or in any way to impeach it.

Therefore, in an action for use and occupation by an incumbent against a tenant of the glebe lands, the defendant cannot give evidence of a simoniacal presentation of the plaintiff, in order to avoid his title (f).

(a) Whitehead v. Clifford. 5 Taunt. 518.
(b) Thomas v. Cooke. 2 Stark. 408.
(c) Keating v. Bulkely. 2 Stark. 419.
(4) Matthews v. Sawell. & Taunt. 270.

(e) Doe d. Cheney v. Batten. Cowp. 243246. Birch v. Wright. 1 T. R. 378-387. (f) Cooke v. Loxley. 5 T. R. 4, 5•.

So where premises had been let to B. for a term determinable by a notice to quit, and pending such term C. applied to A. the landlord. for leave to become the tenant instead of B, and upon A.'s consenting agreed to stand in B.'s place, and offered to pay rent; it was held that (although B.'s term had not been determined either by a notice to quit or surrender in writing) A. might maintain an action for use and occupation against C., and that the latter could not set up B.'s title in defence to that action (a).

So, in an action for use and occupation, the plaintiff having given evidence of payment of rent by the defendant for nineteen years, the defendant would have gone into evidence to prove a title in another. Per Wilmot, J.-Payment of rent and holding under a person for so long a time, is conclusive evidence against the defendant, and he cannot set up a title in another and as to the objection that has been made, that the defendant may be liable to two actions for the rent, by persons having different titles, that cannot be the case; for though another has title, yet he cannot bring an action for the rent till he has made an entry, and recovered in ejectment; [which entry need not now be actually made in such case, but is supposed, 3 Burr. 1895. Run. Eject. 199.] and then it must be trespass for the mesne profits (b).

But it was agreed, that though a defendant cannot controvert the title of the plaintiff, yet he may give evidence to explain the holding under him, as that he was executor during the minority of A. B. and that his interest was then determined; for that admits the plaintiff's title during the time the defendant held under him (b).

An action for use and occupation is maintainable without attornment upon the stat. 4 & 5 Ann. c. 16. s. 9 & 10. by the trustees of one, whose title the tenant had notice of before he paid over his rent to his original landlord; though the tenant had no notice of the legal estate being in the plaintiffs on the record (c).

In an action for use and occupation, where the defendant has come. in under the plaintiff, he cannot shew that the plaintiff's title has expired, unless he solemnly renounced the plaintiff's title at the time, and commenced a fresh holding under another person (d).

In an action for use and occupation, where the defendant did not come in under the plaintiff, the plaintiff can only recover rent from the time he has had the legal estate in him, although he may have had the equitable estate long before (d).

By the abovementioned statute (11 G. 2. c. 19. s. 15.) it is enacted, That where any tenant for life shall happen to die before or on the day on which any rent was reserved or made payable upon any demise or lease of any lands, &c. which determined on the death of such

(a) Phipps v. Sculthorpe. 1 B. & A. 50. (b) Esp. N. P. 21.

(c) Lumley v. Hodgson. 16 East, 99.

(d) Balls v. Westwood. 2 Campb. II. et in notis.