Use and occupation lies, where the tenant quits the premises without any regular determination of the demise. And where in an action for the use and occupation of apartments in the plaintiff's house during half a year, it appeared that the rent was claimed in consequence of the defendant having neglected to give a notice to quit; and the defence set up was, that the plaintiff, after the defendant had quitted, had put up a bill at the window; Lord Kenyon, C. J., expressed an opinion that the defence insisted on would afford no answer to the plaintiff's action. It was for the benefit of the defendant that the apartments should be let; nor would he infer from the circumstances of the landlord's endeavouring to let them, that the contract was put an end to; there must be other circumstances to shew it, and not merely an act of so unequivocal a kind; and as the plaintiff had proved the taking the premises, and the payment of the rent, it was incumbent on the defendant to prove, by express evidence, that the tenancy was determined. (e) Where the defendant, in 1799, agreed to take the premises for seventeen years at a yearly rent, and entered; and 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of the plaintiffs, put in a new tenant, who occupied for two years, and then the contract for sale of the fee was rescinded. It was 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. (ƒ) This case is clearly distinguishable from Phipps v. Sculthorpe before noticed. (g) Where, however, a tenant from year to year, at a rent (e) Redpath v. Roberts, 3 Esp. 225, recognized by Lord Ellenborough in Mills v. Bottomley, cited Selw. N. P. 1421, 9th edit. (f) Matthews v. Sawell, 8 Taunt. 270. (g) Supra, p. 517. or after the tenant has quitted without mined. not if tenant be treated as a trespasser; payable half yearly, without giving any notice to the landlord, quitted the premises at the expiration of a year; and before the next half year expired, the landlord let the premises to another tenant who occupied them; it was held, that the landlord was not entitled to recover rent from the first tenant from the expiration of the year, when he quitted the premises, to the time when the landlord relet the same to the second tenant the contract for letting being entire. (g) So where a lessee quitted apartments which he had taken for a year, in the middle of his term, and the lessor let them by the week to another tenant, it was held that the lessor could not recover, in an action for use and occupation, against the lessee for a subsequent portion of the year, during which the apartments had been unoccupied. (h) And where a landlord, in the middle of a quarter, accepted from his tenant the key of the house demised, under a parol agreement that upon her then giving up the possession the rent should cease, and she never afterwards occupied the premises, it was held, that he could not recover in an action for the use and occupation of the house for the time subsequent to his accepting the key. (i) A party can be charged for use and occupation so long only as the plaintiff treats him as his tenant; for if the owner treat the occupier as a trespasser, he cannot claim rent of him; and, therefore, if he recover the lands in ejectment, he cannot afterwards charge the defendant for use and occupation beyond the day of the demise in the ejectment. (k) But the action was held to lie against a lessee from year to year, notwithstanding bankruptcy and the occupation by his assignee during part of the term for which the rent accrued. (1) (g) Hall v. Burgess, 5 B. & C. 332. (h) Walls v. Atcheson, 3 Bing. 462. (i) Whitehead v. Clifford, 5 Taunt. 518; and see Grimman v. Legge, supra, 515. (k) Birch v. Wright, 1 T. R. 378. Carmier v. Mercer, cited ibid. 387. And see Doe dem. Cheny v. Batten, Cowp. 243. (1) Boot v. Wilson, 8 East, 311. tion. If the rent be entire, and the landlord evict the tenant or after evicout of part of the demised premises, the tenant may abandon the residue, and in that case he cannot be charged for the occupation of any part. (m) But if, after the eviction, he still continue to occupy the residue, it seems that he may be charged for such occupation upon a quantum meruit. (n) If A. let lands to B., who underlets to C. and others; and during these tenancies A. gives notice to C. and the other under-tenants to quit, and C. quits, and the lands before occupied by him remain unoccupied for a year, and are then again let by B.; A. cannot recover against B. for the use and occupation of this land for the year in which it was unoccupied; such a case amounts to an eviction, and may be pleaded to the whole demand. (0) If one of several executors enters on the demised premises, such entry will not enure as the entry of all, so as to make all the executors liable in an action for use and occupation. (p) The declaration for use and occupation may be as general Declaration. in assumpsit as in debt; and the same rule as to setting out the local situation applies to either form of action. (q) A plea of nil habuit in tenementis is bad both in assumpsit Plea. and in debt for use and occupation. (r) In an action by a surviving owner for the use and occupa (m) Smith v. Raleigh, 3 Camp. 513; and see Pope v. Biggs, 9 B. & C. 245. (n) Stokes v. Cooper, 3 Campb. 513, note. And see Tomlinson v. Day, 2 B. & B. 680. (0) Burn v. Phelps, 1 Stark. 94. (p) Nation v. Tozer, 1 C., M. & R. 172. (9) Guest v. Caumont, 3 Camp. 235, et vide 9 Geo. IV. supra. For the declaration for use and occupation in debt, vide Chitt. on Plead. Vol. II. p. 36, 6th edit. The ex ception in favour of debts for rent (r) Curtis v. Spitty, 1 Bing. 15. Evidence. tion of premises under two jointly, it is not sufficient to allege that the premises were held by the sufferance and permission of the surviving owner only: (r) but in such case there are two modes of declaring: either by alleging that the defendant was indebted to both, for the use and occupation by the permission of both; or that he is indebted to one, for the use and occupation of the premises, held and enjoyed by the joint permission of both. (s) In an action for use and occupation, the plaintiff is allowed to resort to the original agreement, though void under the Statute of Frauds, in order to ascertain the amount of the rent due. (t) But where a lessee took a farm under an agreement which he never signed, and the terms of which his lessor omitted to fulfil, in an action for use and occupation, the Court of C. P. held that the Jury were not bound by the amount of rent mentioned in the agreement, but might ascertain the value of the land by other evidence, and give their verdict accordingly. (u) A printed paper read to the tenant, and assented to by him, although not signed by either of the parties, may be referred to by the attorney to shew the terms of the letting. (v) Where premises had been demised by two tenants in common, and the rent for a time paid to the agent of both, but afterwards the tenant had notice to pay a moiety of the rent to each of the two, and separate receipts were thereupon given; it was holden to be a question of fact for the jury whether or not the parties meant to enter into a new contract with a separate reservation of rent to each. (w) (r) Israel v. Simmons, 2 Stark. (s) Per Holroyd, J., ibid. 360. (u) Tomlinson v. Day, 2 B. & B. 680. (v) Lord Bolton v. Tomlin, 1 Nev. & P. 247. (w) Powis v. Smith, 5 B. & A. 850. SECTION IV. OF THE LANDLORD'S REMEDY FOR BREACH OF COVENANT OR AGREEMENT. of covenant. The action of covenant lies not only for the rent reserved, 1. By action but also for damages in all cases in which any covenant, express or implied, has been broken. And where lessee for years had been ousted, the ancient remedy was by writ of covenant, by which, when ousted by the lessor, and the term was still in being, he recovered the term and damages; or if the term were expired, or the ouster were committed by a stranger claiming an elder title, damages only. (x) Whether a party has broken any of his covenants or not, is a matter properly triable at law, as the damages (supposing a breach) cannot be settled without such trial. (y) deed under seal. The action of covenant lies only where the covenant upon Lies only on which the defendant is to be charged has been made by him by deed under seal, either indented or polled ; (≈) for if A. and B. enter into a covenant, and only A. seal, he cannot maintain covenant against B.; (a) a rule not without exceptions; thus, if a lease be made to A. and B. by indenture, and A. Exceptions. seal a counterpart, and B. agree to the lease, but do not seal, B. may be sued for covenant broken; (b) and where the crown by letters patent, grants a lease to A., which A. accepts, without sealing any counterpart, his mere acceptance |