Debt for Use and Occupation.

WHERE the demise is not by deed, it is usual to sue for rent in an action of debt, or assumpsit (a), for use and occupation. In this form of action the defendant is merely charged in respect of his occupation; and it is therefore not necessary to set out any demise of the premises, nor for what term they were demised, nor what rent was payable, nor for what length of time the defendant occupied the premises, nor when the sum sought to be recovered became due, nor for what space of time (b); and a corporation, which cannot demise, but by deed, may maintain use and occupation, for that action does not suppose a demise. (c)

The place, or county, where the premises occupied lie, is immaterial, and therefore need not be mentioned in the declaration, and the inconvenience of this generality may be obviated by calling upon the plaintiff for particulars of his demand. (d)

It was doubted in a late case, whether on a judgment by default, in an action of debt for use and occupation, a writ of inquiry was necessary before signing final judgment. (e)

(a) Ante, p. 404.

(b) Stroud v. Rogers, Hil. 32 Geo. 3. C. B. the first instance of this form of action being maintained, recognised in Wilkins v. Wingate, 6 T. R. 63. (c) Dean and Chapter of Rochester v. Pierce, 1 Campb. N. P. C. 466.

(d) King v. Fraser, 6 East, 350. Egler v. Marsden, 5 Taunt. 25. See further as to setting out the place, ante, p. 411.

(e) Arden v. Connell, 5 Barn. and Ald. 885.

Who is a tenant within the statute.

Demand.

Debt for Double Value.

By statute 4 Geo. 2, c. 28, s. 1, it is enacted, that in case any tenant or tenants for life, lives, or years, or other persons who shall come into possession of any lands, &c. by, from, or under or by collusion with such tenant or tenants, shall wilfully hold over any lands, &c. after the determination of their term, and after demand made and notice in writing given, for delivering possession thereof, by his or their landlord, or lessor, or the person or persons to whom the remainder or reversion of such lands, &c. shall belong, his or their agents, thereunto lawfully authorised, such persons so holding over, shall, for, and during the time he or they shall so hold over or keep the person or persons entitled out of the possession of the said lands, &c. pay to the person or persons so kept out of possession, their executors, administrators, or assigns, at the rate of double the yearly value of the said lands, &c., for so long time as the same are detained, to be recovered by action of debt, whereunto the defendant or defendants shall be obliged to give special bail, against the recovery of which penalty there shall not be any relief in equity. (a) A tenant for a less term than a year, as tenant from week to week, was held by Lord Ellenborough not within the statute (b); and a tenant who holds over under a fair claim of right, will not be considered as wilfully holding over within the statute, though it appear eventually that he had no right. (c)

The statute requires a demand to be made, and a notice in writing to be given; but it has been held, that a notice to quit includes a demand. (d) Where the tenant holds over, after the determination of a term certain, although no notice to quit is necessary to put an end to the tenancy, yet a demand of the possession must be made, in order to entitle the landlord to double value; such demand, however, need not be made on or

(a) This statute was said by the court in Wilkinson v. Colley, 5 Bur. 2698 (recognised in Lake v. Smith, 1 B. & P.N. R. 178), and by Gould, J. in Cutting v. Derby, 2 W. Bl. 1077, to be a remedial law; but Lord Ellenborough, in Lloyd v. Rosebee, 2 Campb. 454, held it to be a penal statute, which was to be

construed strictly.

(b) Lloyd v. Rosebee, 2 Camp. N. P. C. 453; but see the last note.

(c) Wright v. Smith, 5 Esp. N. P. C. 203. See Soulsby v. Neving, 9 East, 312.

(d) Wilkinson v. Colley, 5 Burr, 2694.

before the expiration of the tenancy, though the landlord will only be entitled to the double value from the time of demand made. (a) If the rent was reserved quarterly, and the demand is made in the middle of a quarter, the landlord cannot recover single rent for the antecedent fraction of such a quarter. (b)

Where notice to quit was served upon the tenant, a feme sole, who married before the expiration of the year, it was held, that the landlord might maintain debt against the husband without making a demand of the possession from him, and that in such action it was not necessary to join the wife for conformity. (c)

An agent is authorised by the statute to give the demand and notice; and it has been held, that a person appointed by the Court of Chancery to receive the rents and profits of the estate, is an agent lawfully authorised within the meaning of the statute. (d)

Agent.

If the landlord accepts rent from the tenant after the expir- When the right ation of the notice to quit, it is a question for the jury whether to double value such rent was received in part satisfaction of the double value, is waived. or as a waiver of it. (e) And where the landlord declared in debt, 1st, for the double value; and 2ndly, for use and occupation; and the tenant pleaded nil debet to the first count, and a tender of the single rent before action brought to the second, and paid the money into court, which the plaintiff took out before trial and proceeded; it was held, that this was no waiver of the plaintiff's right to proceed for the double value, so as to nonsuit the plaintiff; but that the case ought to have gone to the jury; and that the plaintiff going on with the action after taking the single rent out of court, was evidence to shew, that he did not mean to waive his claim for the double value, but to take the single rent pro tanto. (f)

A recovery in ejectment is not a waiver of the landlord's right to the double value for the time between the expiration of the notice to quit, and the time of recovering possession under the ejectment. (g)

One tenant in common may sue for the double value without joining his cotenant. (h)

(a) Cobb v. Stokes, 8 East, 361 ; and see Cutting v. Darby, 2 Wm. Bl. 1075. (b) Ibid.

(c) Lake v. Smith, 1 Bos. and Pul. N. R. 174.

(4) Wilkinson v. Colley, 5 Burr. 2694.

(e) Ryal v. Rich, 10 East, 52; and
see Doe d. Cheny v. Batten, Cowp.
243.

(ƒ) Ryal v. Rich, 10 East, 48.
(g) Soulsby v. Neving, 9 East, 310.
(h) Cutting v. Derby, 2 W. Bl. 1077.

Debt for Double Rent.

By statute 11 Geo. 2, c. 19, s. 18, if any tenant shall give notice of his intention to quit the premises holden by him, at a time mentioned in such notice, and shall not accordingly deliver up the possession thereof, at the time in such notice contained, then such tenant, his executors, or administrators, shall thenceforward pay to the landlord double the rent, or sum, which he should otherwise have paid, to be levied, sued for, and recovered, at the same times, and in the same manner as the single rent or sum, before the giving such notice, could be levied, &c., and such double rent or sum, shall continue to be paid during all the time such tenant shall continue in possession. (a)

As this statute directs the double rent to be recovered in the same manner as the single rent, the landlord may maintain either debt or assumpsit in case of a parol demise, or may distrain. (6)

The notice mentioned in this statute need not be in writing (c); but the time for quitting, specified in it, must be fixed; and, therefore, where a tenant from year to year gave his landlord notice, that he would quit as soon as he could possibly get another situation, and he did get another situation, it was held, by Lord Ellenborough, that he was not liable on this statute. (d) Although a recovery in ejectment is not a bar to an action for double value, yet there may be some incongruity in applying the remedy for double rent after the remedy by ejectment. (e)

(a) It is said, in Cutting v. Derby, 2 Wm. Bl. 1077, that this statute, and the 4 G. 2, c. 28, (ante, p. 478) being in pari materiâ, ought to have the same construction; and so it is said by Chambre, J. Lake v. Smith, 1 Bos. and Pul. N. R. 180, that these statutes being in pari materiâ, may be considered as throwing light on each other. So far as as they are both remedial laws, (ante, p. 478, note a;) this is true; but there appears to be one strong distinction be

tween the two statutes, that the 4 G.?, c. 18, treats the tenant as a trespasser, while the 11 G. 2, c. 19, recognises him as a tenant, and only imposes double

rent.

(b) Timmins v. Rowlison, 3 Burr. 1603.

(c) Ibid.

(d) Farrance v. Elkington, 2 Campb. N. P. C. 591.

(e) Per Ld. Ellenborough, Soulsby v. Neving, 9 East, 314.

Ejectment.

THE action of ejectment is a possessory remedy, by which a per- Nature and orison, who has a right of entry upon any corporeal hereditaments, gin of the action. may acquire the possession, whether he be tenant in fee, in tail,

for life, for years, or by elegit or statute merchant.

In the earlier periods of the law, the right of the freeholder to the possession or property of lands, was always tried in a real action, adapted to the circumstances of the case; but the estate of tenant for years was deemed to be of so fragile a nature, that for a long time he possessed no means of recovering his term, if ousted by a wrong-doer. Leases for years being originally considered merely as contracts or covenants for the enjoyment of the rents and profits, the only remedy for the lessee, if ejected by his lessor, was at first a writ of covenant, in which he wast entitled to recover his term and damages; or if ejected by a stranger, his damages only. (a) The remedy of the lessee against his lessor, or those claiming under him, was afterwards facilitated, by the introduction of the writ of quare ejecit infra terminum. (b) If the termor was dispossessed by a stranger, the lessor might have recovered possession of the land in assise (c); but the only remedy for the lessee was a writ of ejectione firma, in which, at this time, damages merely, and not the term, were recoverable. (d) In the reign of Edward IV. an alteration had taken place in the law, and the termor was allowed to recover, not only damages, but likewise his term (e); and in the time of Elizabeth, the ejectio firmæ appears to have become the common form of action, for the trial of titles to land. (f)

(a) F. N. B. 145 L. Br. Ab. Cov. 33. 3 Bl. Com. 158, 200. Gilb. Eject. 2, 2nd edit.

(b) Ante, p. 98.

(c) Ante, p. 64.

(d) Fitz. Ab. eject. firmæ, 2. Jenk. Cent. 67. The writ of ejectione firma seems to have been introduced in the reign of Edw. 3. 3 Reeves' Hist. 29.

(e) Dictum per Fairfax, 7 Ed. 4, 6, b. Br. Ab. Quare Ejec. 6. 3 Reeves' Hist. 391. The first instance of a judgment to recover the term is in 14 Hen. 7. See Jenk. Cent. 67. Rast. Ent. 253, a. 4 Reeves' Hist. 165.

(f) See Alden's case, 5 Rep. 105, b. Preface to 11 Rep. xii.