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 messuage, 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 due to 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 (c). 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). (a) Hookin v. Quilter. 2 Str. 1271. et n. I. (d) Guest v. Caumont. 3 Campb. 235. (e) Israel v. Simmons. 2 Stark. 356. 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.? 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 (ƒ). Assumpsit lies against a lessee from year to year, upon his agreement to pay rent during his tenancy, notwithstanding his bankruptcy, (4) Bull. N. P. 139. Esp. N. P. 165. Lewis y. Willis. 1 Wils. 314. (6) Bull. N. P. 151. (c) 1 Tidd's Pract. 592. (d) Bull. N. P. 152. (e) Tidd's Pract. 593. (f) Lear v. Edmonds. 1 B. & A. 157. and the occupation of his assignees during part of the time for which the rent accrued, which were pleaded in bar. Quare? 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 suf ficient 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. 455. CHAPTER XIV. Of the Remedies for and against Landlord and Tenant; wherein Of the Actions of Ejectment and Trespass for Mesne Profits for Recovery of Rent and Possession. SECTION I. Of the Action of Ejectment at Common Law, 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. F the various remedies which the law affords for the breach of a contract or the reparation of a wrong, none perhaps so intimately concerns the respective relations of landlord and tenant, as that admirable fiction of the Courts of common law, called the action of ejectment. Besides the remedy given to a landlord, where the lease contains a clause of re-entry on non-payment of rent, by the stat. 4 G. 2. c. 28. s. 2. (of which hereafter) the action of ejectment lies at common law to recover possession, on The expiration of the lease by effluxion of time; or The determination of the lease by Non-payment of rent, or Where the possession is vacant, or In order, however, to explain the action as applicable to these particular cases, we must go into a general account of the nature of the remedy by ejectment. History of the Action.-By the ancient common law, the only method of recovering the possession of land, was by real action by writ of entry or assize, and this is no case where the estate was less than freehold; for a mere leasehold interest or term for years was in the early period of our constitution, when feudal principles more strictly. prevailed, deemed of such little import, that no remedy was provided, whereby the tenant could regain his possession in case he was ousted by his landlord or by a stranger: against the former he could proceed only upon his breach of covenant or agreement; against the latter indeed he might have his writ of ejectment, by which however he could recover damages only, and not the possession (a). In those times the ejectment was a mere personal action of trespass, and the proceedings were by pone, or by capias and distress infinite (a). In process of time,-some say so early as the reign of Ed. 4. (3) Bl. Com. 201.) but certainly about the time of H. 7. when long leases began to obtain, the remedy by ejectment was extended and rendered more efficacious by the object of the action being completely changed, and the term itself recovered. This was effected by the Courts of Law resolving to give judgment in ejectment that the lessee in ejectment should recover possession of the land itself by the process of a writ called an habere facias possessionem (a). From this period, the practice in ejectment became wholly subject to the controul of the Court, and a new method of trial, unknown to the common law, was introduced (a). Ancient Practice.-It now became usual for a man that had a right of entry into any lands, to enter thereon and seal leases, and then the person that next came on the freehold animo possidendi was accounted an ejector of the lessee; by which means any man might be turned (a) 2 Sell. Pract. 162. out of possession, because the lessee in ejectment would recover his term without any notice to the tenant in possession; so that the Courts of Law made it a standing rule, that no plaintiff should proceed in ejectment to recover his lands against such a feigned ejector, without delivering to the tenant in possession a declaration, and making him an ejector and proper defendant if he chose it (a).—This rule of Court became absolutely necessary upon the alteration of the object of the action of ejectment, which was now in rem; for otherwise the Court might have been instrumental in doing an injury to a third person, because a declaration might otherwise be delivered to a stranger, a feigned defence be made, and a verdict, judgment, and execution thereon obtained, whereby the tenant would have been ousted, without notice of any proceedings against him (a).--Upon this notice to the tenant in possession, and affidavit thereof made, it was usual for the tenant in possession to move the Court, that, as the title of the land belonged to him, he might defend the suit in the casual ejector's name, which the Court, upon affidavit of that matter, used to grant, and that the suit should be carried on in the casual ejector's name, the tenant in possession saving him harmless; and then the casual ejector was not permitted to release errors in prejudice of the tenant in possession, as the suit was carried on in his name by rule of Court; and the process for costs was taken out against the casual ejector who was obliged to resort to the tenant in possession to recover back the same, and put his bond of indemnification in suit upon his refusal to pay them. Such leases were to be actually sealed and delivered, otherwise the plaintiff could maintain no title to the term; they were also obliged to be sealed on the land itself, otherwise it amounted to maintenance by the old law to convey a title to any one, when the grantor himself was not in possession (b). Such was the original method of proceeding in ejectment when the term was first begun to be recovered; but one alteration by degrees begat another, and fiction was heaped upon fiction. During the exile of King Charles the Second, an entirely new mode of proceeding was invented and introduced by Lord C. J. Rolle, which method has been followed ever since by the Courts, and is therefore called the modern practice in contradistinction from the ancient one just described (b). Modern Practice.-The new method of proceeding in ejectment depends entirely upon a string of legal fictions; neither actual lease, nor actual entry, is made by the plaintiff nor actual ouster by the defendant, but all are merely ideal, for the sole purpose of trying the title. To this end, in the proceedings, a lease for a term of years is (6) Ibid. 163-4. (a) 2 Sell. Pract. 162. |