CHAP. XL. USE AND OCCUPATION. FORMERLY an action of assumpsit for rent arrear upon a parol lease for years could not have been maintained, either pending, or after the expiration of the term, because it was considered as a real contract: the only remedies were by distress or action of debt. But on a mere promise to pay a sum of money, or so much as the plaintiff deserved to have, in consideration of the plaintiff's permitting the defendant to occupy lands, &c. an action of assumpsit might have been maintained by the common law. In this case the objection as to the contract being real, was removed by considering the permission to occupy as not amounting to a lease, and the mere promise to pay a sum of money in consideration of such permission, as not amounting to a reservation of rent. In order, however, more effectually to obviate the difficulties which occurred in the recovery of rent, where the demise was not by deed, it is enacted by stat. 11 G. 2. c. 19. s. 14. "that landlords, where the agreement is not by deed, may recover a reasonable satisfaction for the lands, tenements, or 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." It will be observed, that under this statutef, a landlord a Brett v. Read, Sir W. Jones, 329. Cro. Car. 343. b 1 Rol. Abr. 7. (0) pl. 1. c Ib. pl. 2. see also Green v. Harring- Johuson v. May, 3 Lev. 150. Adjudged on demurrer. e How v. Norton, 1 Lev. 179. Mason v. Welland, Skin. 238.242. f Per Eyre C. J. delivering the opinion of the Court in Naish v. Tatlock, 2 H. Bl. 323. who has rent owing to him is allowed to recover, not the rent, but an equivalent for the rent, a reasonable satisfaction for the use and occupation of the premises, which have been holden and enjoyed under the demise, by the action for the use and occupation; and it is provided on his behalf, that if the demise he produced against him, it shall not defeat his action, as it would have done before the statute; but the fixed rent shall only be used as a medium, by which the uncertain damages to be recovered in this form of action shall be liquidated. A reasonable satisfaction for the use and occupation is the thing intended to be given; the form of action marked out (being enlarged by a necessary construction, so as to be allowed to be maintained without an express promise) is the proper form in which such reasonable satisfaction is to be recovered; but the reasonable satisfaction which in its own nature must apply to something specific by which it can be estimated, being here given for use and occupation, and for nothing else, it is a remedy which, in its own nature, is not co-extensive with a contract for rent, nor does it seem to have been within the scope and purview of the statute to make this remedy coextensive with all the remedies for the recovery of rents claimed to be due by the mere force of the contract for rent. The statute meant to provide an easy remedy in the simple cases of actual occupation, leaving other more complicated cases to their ordinary remedy. Since this statute, the action for use and occupation has been resorted to as one of the most convenient remedies for the recovery of rent arrear, in cases to which the statute applies. The plaintiff usually declares in the form of a general indebitatus assumpsit with a quantum meruit (1). Hence the declaration is very concise. It has been, however, the practice to state in the declaration, the parish in which the land, messuage, &c. occupied by the defendant, are situated; and plaintiffs have very often been nonsuited for a variance between the parish mentioned in the declaration and that proved in evidences. But it is conceived, that, as in the case of King v. Fraser, 6 East, 348. and ante p. 354. it was determined, that in debt for use and occupation there was not any necessity for naming the parish, because there was not any locality in the action; so in indebitatus assump g See Wilson v. Clark, 1 Esp. N. P. C. 273. (1) As to the action of debt for use and occupation, see ante, tit. Debt, p. 553. sit the like doctrine would be laid down, for the same reason. It may be prudent, therefore, in all cases, to omit naming the parish, in order to avoid any objections on the ground of a variance. It will be proper to remark, that the statute provides a remedy, in such cases only, where the agreement is not by deed; but it has been holden, in one case, where the defendant held under a mere agreement for a lease, which did not amount to an actual demise, that the plaintiff' might maintain an action for use and occupation, although such agreement was by deed. In an action for use and occupation of apartments in the plaintiff's house during half a year, it appeared that the rept was claimed in consequence of the defendant having neglected to give a notice to quit: the defence set up was, that the plaintiff, after the defendant had quitted, had put up a bill at the window; but 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 party's endeavouring to let them, that the contract was put an end to; that there must be other circumstances to shew it, and not merely an act of so equivocal a kind. That as the plaintiff had proved the taking the premises, and the payment of the rent, it was incumbent on the defendant to prove that the tenancy was determined, by express evidence. The defendant thereupon proved, that a notice to quit had been given, in which the plaintiff had acquiesced, and obtained a verdict. A tenancy from year to year created by parol, is not determined by a parol license from the landlord to the tenant to quit in the middle of a quarter, and the tenant's quitting the premises accordingly. The statute of frauds requires a deed or note in writing, or a surrender by operation of law. The words of the statute are, that the plaintiff may recover a reasonable satisfaction for the lands, &c. held or occupied by the defendant, in au action for use and ocqupation." An occupation by the tenant of the defendant, is, as far as respects the plaintiff, an occupation by the defendant himself; hence, If A. agree to let his lands to B., who h Kirtland v. Pounsett, 1 Taunt. 570. iElliot v. Rogers, 4 Esp. N. P. C. 59. Kenyon C. J. k Redpath v. Roberts, 3 Esp. N. P. C. 225. 1 Mollett v. Brayne, 2 Camp, N. P. C. : m Bull v. Sibbs, T. R. 9271 39 1 permits C. to occupy them, A. may recover the rent in an action against B. for the use and occupation. Where the defendant has not obtained possession 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. The defendant entered upon a leasehold cottage under J. S., who soon after mortgaged it to W. S., and in 1806, assigned the equity of redemption to the plaintiff". On the 18th of July, 1808, W. S. assigned the legal estate in premises to the plaintiff. The defendant continued in possession till the Michaelmas following, and bad paid no rent for the last two years. It was contended, that although a person having the equitable estate only, perhaps could not maintain use and occupation without privity of contract, yet the plaintiff being now clothed with the legal estate, his title would have reference to the time when the equity of redemption was assigned to him, so as to entitle him to two years' rent. But Lord Ellenborough clearly held, that he could only recover rent for the period between the 18th of July and Michaelmas-day, 1808. His lordship likewise ruled in the same cause, that the defendant, who just before he quitted had been distrained upon by the ground landlord for several years' ground rent, amounting to a much larger sum than was due to the plaintiff, could only set off a part of this sum proportioned to the period during which the plaintiff had the legal estate; and that the fact of the plaintiff having brought an ejectment for the same premises, laying a demise on the 18th July, 1808, was no bar to the present action, but was only matter of special application to the court. In an action against the assignees of B. a bankrupt, the declaration stated, that the defendants on such a day were indebted to the plaintiff in-. for the use and occupation of two houses, &c. before that time occupied as well by the bankrupt, whose estate therein the defendants afterwards had, as by the defendants, at their special instance and request, for one year then elapsed, and as tenants thereof respectively, to the plaintiff, and by his permission. The second count was upon a quantum meruit, to the same effect as the indebitatus assumpsit. The facts of the case were, that after B. had occupied the premises during part of the year, under an agreement to pay. a-year for them, he became a bank Cobb v. Carpenter, 2 Camp. N. P. o Naish v. Tatlock and others, assignees of Lediard, a bankrupt, 2 H. Bl. 319. C. 13. n. rupt, whereupon the defendants, his assignees, entered into possession and continued in the possession for the remainder of the year. A proportion of the annual rent for that part of the year during which the defendants were in possession, was paid into court. It was holden, that if the plaintiff could recover at all in this form of action against one person for the use and occupation of another, (as to which the court would not give any opinion,) it must be on the ground of that occupation having been permitted at the defendant's request, and that request must be proved; that the words "at the special instance and request of the defendants," were in this case words of substance and operative, connecting the occupation of the defendants, for which they were bound to make a satisfaction, with the occupation of B., a stranger, for whose occupation, primá facie at least, the defendants were not liable; that in point of fact it was not at the request of the defendants that B. had been permitted to occupy; the defendants had no relation to B., but as his assignees, and that relation did not commence until the close of B.'s occupation; that relation, therefore, alone could not have the effect of making them personally liable to answer for his occupation before his bankruptcy. The averment, that he had been permitted to occupy "at the request" of the defendants, was therefore substance, and not mere form, and as the plaintiff had failed in the proof of it, he was not entitled to recover from the defendants the rent due for B.'s occupation. The defendant contracted to purchase of the plaintiff a lease of a house, and on payment of the purchase money, A few months afterwas permitted to take possession. wards, the plaintiff not having made out a good title, defendant declared his intention to rescind the contract; he accordingly quitted possession of the house, and brought an action for money had and received against the plaintiff, and recovered the whole of the purchase money and the expenses of investigating the title. The plaintiff then brought an action for use and occupation against the defendant; but it was holden, that it would not lie; Mansfield C. J. observing, that a contract could not arise by implication of law under circumstances, the occurrence of which neither of the parties ever had in their contemplation, that if no money had been paid, perhaps it might be a different question; but if a person paid his money, and was so unwise as p Kirtland v. Pounsett, 2 Taunt. 145. But see Hearn v. Tomlin, Peake's, N. P. C. 192. |