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avow

set out, the plaintiff is bound to Term Rep. 539. Sullivan traverse some particular point. v. Stradling, 2 Wilson, 28. It is clear, therefore, that the 2. So, in an action of debt plea of nil habuit, &c. could for use and occupation, nil ha. have been po answer

to an

buit in tenementis is a bad plea, avowry at common law. The and cannot be given in evi. stat. 11 Geo. II. was passed

dence under nil debet : bewith the view of obviating cause, to maintain this action, the difficulties which often the plaintiff must shew a conarose in stating long and in tract with the defendant, tricate titles. It enacts, “ That

which contract is an admis" it may be lawful for de sion of the plaintiff's possesfendants in replevin to sion; and, therefore, in this

or make cognizance action the plaintiff cannot re“ generally, that the plaintiff cover on the strength of his

or other tenant of the land, title, without shewing a taking 66 where the distress was made, by the tenant, or an attorn" enjoyed the same under a ment, which is an admission of grant or demise at a certain

his title. In the same manner, “ rent, during the time where in an action of assumpsit for 66 in the rent distrained for was use and occupation, nil habuit - incurred, which rent was in tenementis is a bad plea; 66 then and still remains due,

for this action is founded upon 66 without setting forth the a personal contract, in which

grant, tenure, demise, or it is not necessary for the " title, of such landlord, or plaiotiff to shew any title; “ lessor, &c.” This clause and, upon proof of the use has effectually taken away the and enjoyment of the pretenant's right to controvert mises by the defendant, he is his landlord's title in replevin. entitled to recover a compenIn the same manner, if a lease sation. It is, however, to be be by indenture, the lessee and observed, that the action for all claiming under him are use and occupation is not coprecluded from pleading nil extensive with the action on a habuit in tenementis to an ac contract for rent upon a detion brought by the lessor, or mise, nor with all the reme. his assignee. For the inden dies for the recovery of rent. ture operates as an estoppel. It is merely collateral to these Palmer v. Ekins, Lord Raym. remedies; and if the defendant 1550. 2 Strange, 817. Comyn. has, in fact, occupied by the 391. Parker v. Manning, 7 permission of the plaintiff,

1817.

PARRY

v. House.

though the plaintiff have, in his landlord, under whom he truth, no title, or a defeasible held : that this was not a mere title, or perhaps an equitable technical rule, but one foundtitle only, the action may be ed in public convenience and maintained. 5 T. R. 4 1 Wil- good policy.--Per Lord Elson, 314. Bull. N. P. 139. lenborough. And, in FrogNash v. Tatlock, 2 H. Black. morton v. Scott, 2 East. 467. 323. Therefore, in an action it was held, that a rector, whose for use and occupation by an own lease was avoided by nonincumbent agaiost a tenant of residence, might recover in the glebe land, who has paid ejectment against his

own the incumbent rent, the de lessee. And, in Doev.Smythe, fendant was not suffered to 4 Maule and Selw. 347. it is give evidence of a simoniacal said, that when the tenant in presentation of the plaintiff, possession pays rent to the in order to avoid his title. lessor, and then disclaims, he 5 T. R. 4. And, in a similar ought to give back the possesaction, where the defendant sion. " It has been often had come in under the plain. ruled, that neither the tenant, tiff, Lord Ellenborough would

nor any one claiming by him, not even permit him to shew can controvert the landlord's (what in any other action for title. He cannot put another rent, or in replevin, may be person in possession, but must shewn,) that the plaintiff's deliver up the premises to his title had expired, unless he

own landlord. This, I behad solemnly renounced the lieve, has been the rule for title at the time, and com twenty years. I remember it menced a fresh holding under was so laid down by Buller, J. another person. 2 Campb. 11. on the western circuit.”-Per So, a lessee of land in the Dampier, Justice. Bedford level was not per Courts of equity concur with mitted to object to an action the courts of common law in this by his landlord, for a breach principle; and, for the reasons of covenant, that the lease upon which the principle itself was void, by the 15 Ch. II. is founded, they extend it furc. 17. for want of being re ther. In 2 Vesey, jun. 696, gistered. Hodson v. Sharpe, Lord Loughborough, Chancel10 East. 351. For it is an

lor, says,

66 You cannot act ; universal rule that a tenant you cannot come forth to a shall not be permitted to set court of justice, claiming in reup an objection to the title of pugnant rights. Upon that it

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1817.

PARRI

.

House.

sey, 344.

is, that a court will not allow only be maintained, where the a tepant to set up a claim contract is by parole, or writ. against his own landlord. Aing, not under seal.

If the man may take a lease of his demise be by deed, the action own estate, but no court of should be brought upon the justice will permit him to set deed, and either be debt, or up his title against his land. covenant. Wilkins v. Win. lord.” See likewise, 11 Ve- gate, 6. T. R. 62. King v.

Fraser, 6 East. 348. In this 3. Nil habuit in tenementis is, action a landlord, who has however, a good plea, in debt rent owing to him, is allowed for rent upon a lease, not by to recover, not the rent, but deed indented; for where an equivalent for the rent, a there is a demise by deed, a reasonable compensation for seisin, and a right to make the the use and occupation of the lease, is the foundation of the premises; and it is premised action for rent. If the land. in his behalf that if the demise lord had no title to demise, be produced against him, (if the tenant has not a quid pro it be not a deed) it shall quo; and he must pay the rent not defeat his action, as it to the owner of the land. would have done before the 2 Wils. 208. And to a plea statute 11 Geo. II. c. 19; but of nit habuit, the plaintiff might the fixed reot shall be only plead quod satis habuit.

used as a medium to ascertain The ancient method of de. the damages. Nash v. Tat. claring in debt for rent is now, lock, 2 Hen. Black. 323. We however, seldom had recourse have already shewn that the to, being superseded by the tenant cannot, in this form of modern action for use and oc action, dispute the title of his cupation. This action has many conveniences, inasmuch 4. There are, however, cases as the plaintiff is allowed to in which the tenant is permit, declare generally, and to pro ted to controvert his landlord's duce the contract in evidence title, in some cases directly, ia in support of his declaration. other cases indirectly. It is, He is not called upon to state indeed, a general maxim that any of the particulars of the the tenant shall not dispute his demise, or even the place where lessor's title in a case where he the premises lie. But this ac has originally received possestion, it is to be observed, can sion from him, or has paid him

lessor.

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rent.
But there are excep-

C. J.

So where a tenant by tions even in this case; for, al- mistake, or misrepresentation, though receiving possession pays rent to a person Dot from the landlord is the strong entitled to demand it, he is est presumption of title, yet not precluded by such payeven there, the tenant may ment from giving evidence, in shew that the landlord's title a plea of non tenuit modo et has ceased ; that it has been re. forma, against the supposed covered from him by a judgment landlord, to 'shew that he is at law, and that he has no right not entitled to the rent. Ro. to turn him out of possession; gers v. Pitcher, 1 Marsh, 541. or that the lessor has assigned In this case, however, the or granted over the reversion. plaintiff did not originally reEngland v. Slade, 4 T. R. 682. ceive possession from the avowJackson V. Ramsbottom, 3 ant. Paying rent is, indeed, Maule and Selw. 316. But a strong presumption; and the the tenant, whilst the lease presumption of title must be subsists under which he has infinitely stronger where the been let into possession, will tenant receives possession from not be permitted to shew that the lessor; yet, even in this his lessor had no title at the case,

the continuance of the time of the demise, though he lessor's title may be disputed, may shew the expiration of though the tenant cannot maio. that title. And he may shew tain possession of the land, that his lessor's title has ex and contend that the landlord pired in an action of debt for had originally no right to derent, reserved upon a deed in. mise. So, in every plea of e. dented, where he would be viction, there is an averment estopped to plead nil habuit in that the lessor had not a pertenementis. Palmer v. Ekins fect title when he demised. Lord Raym. 1552. So, in debt But the plea of eviction is not for rent, a tenant who has sufficient, unless it be added as agreed in writing to hold pre a fact, that the lessee was in mises at a certain rent, may

consequence ousted.

Cowp. . allege that the party with whom 242. he made the contract never 5. In replevin, however, the had any interest in the pre tenant may always deny the mises, if such party never was demise and tenancy, and that in possession; otherwise not, any rent was in arrear; con2 Lord Raym. 746, per Holt, cluding each plea to the coun

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try. The latter plea is, in the grantee might distrain on deed, in the nature of the ge the premises; that the annuity neral issue in this action. Per

was in arrear, and that the Lord Mansfield, Warren v. grantee demanded it, and Theobald, Cowp. 588.

It is

threatened a distress; and that under this plea, or the plea of the plaintiff paid the amount non tenuit modo et formâ, that of the rent due, &c. and so nothe tenant may shew that his thing in arrear. Taylor v.

%alandlord's title has determined

miru, 6 Taunt. 524. in the manner stated above; So, to an avowry for rent, but a suspension of the rent by the tenant may plead payment eviction or expulsion must be of a ground rent to the supespecially pleaded ; and a mere rior landlord ; and he may eidisturbance in the possession, ther plead the payment of the or a trespass, is not sufficient landlord's property tax, assessto maintain this plea. There ed under the 46th Geo. III. c. must be an expulsion in fact. 65. s. 74. or he may claim it Cowp. 242.--So, to an avowry as a deduction from his rent, for rent it is a good plea that, giving it in evidence under the before the lessor had any thing plea of nothing in arrear. in the land, a termor granted Clennell v. Read, 7 Taunt. 50. an annuity or rent charge, and But the tenant cannot avail granted and covenanted that himself of any other set off.

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