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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.t 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.t since the privity of estate is destroyed (3).

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 The contract for sale of the fee was then rescinded.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, arid recurring to his remedy by this action on the contract (e).

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 (/).

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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 (3).

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 (3).

An action for use and occupation is maintainable without attornment upon the stat. 4 est' 5 Ann. c. 16. s. 9 t& 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 (r).

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. i.e. ig.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. Sculthoipe. 1 B.& A. 50. I (J) Balls v. Westwood. 2 Campb.xi. tt in

(b) Esp. N. P. ax. I lotii.

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

tenant for life, that the executors or administrators of such tenant for life shall and may, in an action on the case, recover of and from such under-tenant, if such tenant for life die on the day on which the same was payable, the whole, or if before such day then a proportion of such rent; according to the time such tenant for life lived, of the last year, or quarter of a year, or other time in which the said rent was growing due.

[Respecting the above statute, see ante C. VIII. S. I. tit. Rent, apportionment of.'}

An executor brought an action for rent due to his testator in his lifetime, and for other rent due in his own time, and there was another count on a quantum meruit for the rent of another message, in which he had not declared as executor. After judgment by default, and a writ of enquiry executed, upon error brought, judgment was reversed, because the demands were incompatible:—but perhaps it would have been helped by a verdict, because for rent due in his own time, he need not declare as executor; and therefore, if it had been tried, the judge ought not to have permitted him to prove rent dueto himself in his own right (a).

An action for use and occupation will not lie, where the premises are let for a purpose illegal, or contra bonos mores; as to a prostitute (b).

An action for rent will not lie where the title is in dispute: the Court therefore will not try a title by the action for use and occupation; an ejectment is the proper remedy. This was decided in a case before the Court of King's Bench, by Lord Kenyon C. J. wherein the action was brought against the tenant for rent, while the heir at law and a devisee were contesting their right to the premises (■"'■

It is not necessary in an action for use and occupation, to state in what parish the premises are situated; but if it be stated, a variance in the name of the parish is fatal (d).

Several persons rent premises to be used as a Jewish synagogue,the seats in which are let out by.an officer appointed annually, who receives the rents and applies them partly in the payment of the rent for the premises and partly for general purposes connected with the Jewish religion, the lessees may maintain an action for the rent due from an occupier of a seat (e).

In an action by a surviving owner for use and occupation of premises, it is not sufficient to allege that the defendant held the premises by the sufferance and permission of the surviving owner only, where they were in fact held under two jointly (e).

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The Pleas.—In assumpsit under the statute for use and occupation of a house by permission of the plaintiff, nil habuit in tenementis is a bad plea; for the action is founded on the promise, and therefore if the plaintiff had an equitable title or no title at all, yet if the defendant enjoyed by his permission, it is sufficient; for it is no more necessary for the plaintiff to say that it was his house, than in assumpsit for goods it is necessary to say that they were his goods (a).

But the plea would be good at common law; for there an interest is supposed to have passed from the lessor (a).

Yet qu. t Whether at this day such plea would be admitted, even in an action for rent at common law: for if it would, the supposition of an interest having passed would be a fiction, not in furtherance of the ends of justice, but in destruction of them •, and the rule laid down by Lord Kenyon, that "in an action for use and occupation it ought not to be permitted to a tenant, who occupies by the license of another, to call upon that other to shew the title under which he let the land or premises," is not a mere technical rule, but is founded on public convenience and policy; and as it was adopted by the Court, in conformity to the recognition of it in cases prior to the one then before them, as well as on the grounds of reason and equity, it may now be considered as a general rule, applicable to all cases of a similar kind.

The defendant may in this action, upon the plea of non assumpsit, which is the general issue, give in evidence any thing which proves nothing due, as the delivery of corn or any other thing in satisfaction; or a release; so he may give in evidence, performance (b). In short, the question in assumpsit upon the general issue is, whether there was a subsisting debt (c) or cause of action, at the time of commencing the suit: therefore, though a distinction has been taken that payment or any other legal discharge must be pleaded; yet that distinction is not law; but in both cases, the defendant is allowed to give in evidence any thing that will discharge the debt (d).

But matters of law, in avoidance of the contract, or in discharge of the action, are usually pleaded; and it is necessary to plead a tender, set-off, or the statute of Limitations (e).

A plea to an action of use and occupation, that the plaintiff before action, took and detained, as a distress for the rent, goods of value sufficient to satisfy the same, was held ill on special demurrer, for not shewing that the rent was satisfied (/).

Assumpsit lies against a lessee from year to year, upon his agreement to pay rent during his tenancy, notwithstanding his bankruptcy,

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and the occupation of his assignees during part of the time for which the rent accrued, which were pleaded in bar. £>uare? Whether a special plea in bar stating no facts but what might have been proved under the general issue, but leaving other facts unanswered, which the general issue would have put in issue, be good (a).

Where premises are let at an entire rent, an eviction from part, if the tenant thereupon gives up possession of the residue, is a complete defence to an action for use and occupation (b).

In an action for the use and occupation of a house for six months, it is prima facie sufficient to shew an occupation of the house by the defendant for the preceding six months, since the continuance of the tenancy is to be presumed until the contrary appear, and it is not sufficient for the defendant, in such case, to prove that the keys had been previously delivered to a servant at the plaintiff's house, and a subsequent declaration on the part of the plaintiff, that the keys had been lost or mislaid (c).

(a) Boot v. Wilson. 8 East. 311. | (c) Harland v. Bromley. I Stark' 4JJ

(J) Smith v.Raleigh. 3 Campb.513.

CHAPTER XIV.

Of the Remedies for and against Landlord and Tenant;

wherein Of the Actions of Ejectment and Trespass for Non profits for Recovery of Rent and Possession.

Section I. Of the Action of Ejectment at Common Sub
section II. Of the Action for Non profits.
Section III. Of a Second Action of Ejectment.
Section IV. Of the Action of Ejectment upon the Statute

4 G. 2. c. 28. Section V. Of the Landlord's Remedy under the Statute

11 G.2. c. 19. where the Premises are

vacant. Section VI. Of the Landlord's Remedy under the Statute

1 Geo. 4. c 87.

Section I. When an Ejectment lies, and the proceedings therein at Common Law.

OF the various remedies which the law affords for the breach of > contract or the reparation of a wrong, none perhaps so intimately concerns the respective relations of landlord and tenant) as

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