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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. x. 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 (f).
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 5/. thereby supposed to be due became due, nor for what space of time;
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^. c. 19. x. 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 li).
After a landlord has recovered in ejectment against his tenant, he may maintain debt upon the stat. 4 G. 1. 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 ot 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 (/).
An executor must bring debt in the detinet only, though this would be aided after verdict by the statute of Jeofails (f).
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.
(0) Wilkins v. Wingate. 6 T. R. 61. et in notes.
(4) Brittow v. Wright. Doug. 464-468.
f» Bull. N. P. 169.
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 with, out 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 (f). 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. I Saund. 183. n. a. I (d) Pocock v. Eustace. » Camp. 181. Br. (4) Salmon v. Smith. 1 Saund. 106. I kcr v. Davis. 3 Campb. 474.
(c) M Quillin v.Cox. 1 H. Bl. R. 249. | (,) 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 26/. per ann. on which an action was brought for use and occupation j the defendant paid 26/. into Court. At the trial, the plaintiff offered to give parol evidence, that beside the 26/. per ann. the defendant was to pay the ground landlord 2/. 12/. 6d. but this evidence was rejected; particularly as no evidence was offered of the actual payment of such rent (/).
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
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 (f).
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 (h).
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