THERE is no right at common law to distrain unless there is an actual demise at a fixed rent.

And if the agreement to pay rent is upon a condition which is not performed, a distress cannot be justified.

Dunk v. Hunter.

5 Barn. & Ald. 322-327 (24 R. R. 390).

Distress. Actual Demise.

A landlord has no right to distrain, unless there be an actual demise [322] to the tenant at a fixed rent; and, therefore, where a tenant was in possession, under a memorandum of agreement to let on lease, with a purchasing clause, for 21 years, at the net clear rent of £63, the tenant to enter any time on or before a particular day: Held, that this only amounted to an agreement for a future lease, and that no lease having been executed, and no rent subsequently paid, the landlord was not entitled to distrain.

Replevin, for taking and distraining plaintiff's goods in his dwelling-house, on the 15th March, 1821. Avowry that plaintiff, for one year, ending February 11th, 1821, held, as tenant to defendant, at the yearly rent of £63, payable quarterly, and that defendant distrained for one year's rent in arrear. Plea, first, that he was not tenant; secondly, that the rent was not in arrear. cause was tried before BURROUGH, J., at the last Summer assizes for Sussex, when it appeared, that, on the 19th March, 1819, the following agreement was entered into between the parties. "Mem

*

The

orandum of an agreement between Mrs. Ann Hunter, of [* 323] Southwick, and David Dunk, of Brighton, butcher. Mrs.

No. 1.- Dunk v. Hunter, 5 Barn. & Ald. 323, 324.

Ann Hunter agrees to let on lease, with purchasing clause, for the term of 21 years, all that house and premises, St. James's Street present tenant Thomas Lawler; entering on the said premises by D. Dunk, any time on or before the 11th day of February, 1820, at the net clear rent of £63, per year, and to keep all premises in as good repair as when taken to (reasonable wear allowed), paying on entry £50 in ready cash, and the rent payable quarterly. The term for 7, 14, or 21 years, which term Mr. D. Dunk is to give one clear year's notice, before the expiration of either of the above term of years, if he intends to leave; if purchases before the expiration of the above term by D. Dunk, he is to pay on purchase 1000 guineas." The plaintiff, under this agreement, paid the sum of £50 on the 10th February, 1820; but in consequence, as it was said, of some arrangement between him and the former tenant, he did not enter into the occupation of the premises till the 10th April following. In the March preceding, an application was made, and a lease tendered to the defendant to execute, but she declined to do so, saying she had found that she could not grant one. No rent had been paid by the plaintiff. The jury found a verdict for the defendant. Marryat, in last Michaelmas term, obtained a rule nisi for entering a verdict for the plaintiff, on the ground that the above agreement did not amount to a lease; and that, unless the plaintiff held under a demise, at a specific rent, the defendant had no right to distrain for rent-arrear. And [* 324] now * Gurney and Courthope showed cause. In this case, the plaintiff was tenant to the defendant, for the agree ment amounted to a lease. Here the defendant agreed to let at a specified rent, and the plaintiff has paid the £50, and entered into possession under the agreement. He cannot, therefore, now say, that he did not hold at that rent. Then, the rent being due, the distress was legal. Tempest v. Rawling, 13 East, 18.

Marryat and Chitty, contra. There must be a demise at a specific rent, in order to entitle a landlord to distrain. He cannot distrain for a quantum meruit. The only remedy in such a case is, by an action for use and occupation. Then if so the question is, whether this is an agreement for a lease, or a lease; and clearly it is the former only. Here it specifies, that defendant agrees to let on lease with a purchasing clause; that shows a future lease

1 This is a copy of the original memorandum, except that the spelling has been corrected.

must have been contemplated. The rent, too, must mainly depend, for its amount, on the beneficial clauses which were to be introduced into the future lease. Hegan v. Johnson, 2 Taunt. 148, is not distinguishable from the present case. As to Tempest v. Rawling, there is this distinction, that in that case there had been. a payment of rent; which there has not been here.

ABBOTT, C. J. On looking through the whole of this instrument, which has obviously been framed by an unlettered person, it appears to me, that this is only an agreement preparatory to a demise, and not an actual demise. If it had been the latter, then the defendant * would have been entitled to distrain [* 325] for the rent. But it seems to me that it is not so. It has not any one of the forms of a lease. It begins thus, "Memorandum of an agreement; Mrs. Ann Hunter agrees to let on lease [which obviously means to execute a lease] with a purchasing clause for the term of 21 years, the tenant to enter on the premises at any time on or before the 11th February, 1820, &c." Now, looking at this instrument, I cannot infer when the tenancy was to commence or the rent to become due. The whole is left in doubt, and it is manifest that this was intended as a mere memorandum of an agreement to grant a future lease. Then the question is, whether the allegation in the avowry is sustained by the proof. A party has no right to distrain, unless there be a fixed rent agreed upon; if that be not so, the law gives him a remedy by the action for use and occupation. There can be no distress, unless there be a contract for an actual demise at a specific sum. Where the language of the instrument is such, as to make it a valid contract until something further be done, such instruments have, in some cases, after an actual enjoyment under them, been held to amount to an actual demise. But here, it does not amount to a demise at a certain rent, and therefore the defendant was not entitled to distrain, and cannot sustain the allegation in the avowry. The rule must therefore be made absolute.

BAYLEY, J. The allegation in the avowry is, that the plaintiff held the premises as tenant thereof to the defendant, by virtue of a demise thereof to him the plaintiff theretofore made. The first question is, whether this memorandum of an agreement amounts to a * demise for 21 years. If it does, then the [* 326] allegation in the avowry is made out in evidence. In the case of Morgan v. Bissell, 3 Taunt. 65, the rule is laid down thus, that although there are words of present demise, yet if you collect

No. 1. - Dunk v. Hunter, 5 Barn. & Ald. 326, 327.

on the face of the instrument the intent of the parties to give a future lease, it shall be considered an agreement only. It is clear in this case, that the memorandum of agreement was not intended to operate as a present demise. We cannot ascertain from the language of the instrument, when the term was to commence. There are no words of demise, nor any words from which a warranty of title may be implied, as would be the case if the word "grant" had been inserted. The meaning of the parties seems to have been, that if the defendant entered before the 11th February, the term was to commence from the period of such entry. Upon the whole, therefore, it seems to me, that the parties contemplated the execution of a future lease. Then if this was not an actual demise for 21 years, the party did not at all events hold at the annual rent of £63, and if so, the plaintiff by law could not distrain, the rent not being fixed. If a person bargains for a lease for 21 years, the rent is estimated upon an average for the whole term, and it may be of no benefit to the party whatever for the first year of his occupation. Here the rent of £63 is estimated on the terms of there being a lease granted, and at the time when the distress was made, no lease was granted, and no payment of rent had taken place. I think, therefore, that the plaintiff did not hold the premises at any specific rent, and that the defendant's [* 327] only remedy was by an action for use and occupation in which the amount of the rent would be a question to be left to the jury. This rule, therefore, must be made absolute. HOLROYD, J. I am of opinion that the defendant was not entitled to distrain. This did not operate as a present demise, but was a mere agreement to let in future, and by a different instrument. And there is nothing to show, that it was the intention of the defendant to part with the premises until that instrument was executed. It is clear, that an agreement to grant a lease does not amount to a letting. Besides, in this case, there are subsequent words relative to the introduction of a clause for purchasing, which show, that the letting was to be by a particular instrument containing such a clause. And in addition to this, the stipulation as to the payment of £50 upon entry is quite inconsistent with this being an actual demise. For if it were an actual demise, the tenant would have had a right to enter immediately without paying that sum. I think therefore, that the defendant was not entitled to distrain, and that the rule must be made absolute. BEST, J., concurred.

Rule absolute.

M. agreed verbally with W.'s agent to take a house of W., furnished, [54 n.] at £170 a year rent, for the house and furniture, payable quarterly, and in advance. The house was furnished only in part, but the agent said that it should be completely furnished; not, however, specifying any time. M. was let into possession within a month from the above treaty. After the expiration of a quarter, W. distrained for rent, the furniture not having been sent in as promised. M. brought trespass.

Held, that it was a question for the jury whether the agreement to pay rent was absolute, or on condition only of the furniture being sent in; that there was evidence upon which they might find it to have been conditional; and, therefore, that the distress was not justified.

On

Trespass for taking plaintiff's goods. Plea, Not guilty the trial before ALDERSON, B., at the Gloucester Spring assizes, 1836, it appeared that, the defendant having a house to let, the plaintiff, in May, 1835, entered into a negotiation with one Wood, the defendant's agent, for taking it; and it was agreed verbally between Wood and the plaintiff that the latter should rent the house, furnished, and pay, for the house and furniture, £170 a year, by quarterly payments, to be made in advance. At the time of this treaty the house was furnished in part only, but the agent said that it should be furnished completely, in a manner suitable to a lady's school. No time was fixed at which the furnishing was to be completed. The plaintiff entered on the 25th of May. The furniture was never put in. After the plaintiff had entered, a written agreement was tendered for his signature; but he (by letter to the agent) replied that he declined executing an agreement for a house which was not furnished, complained that furniture had not been sent in, and stated that he had relied upon the honour of Wood for this being performed. In September, 1835, the defendant distrained for £42 10s. The learned Judge left it to the jury to say, whether the payment of rent, as above stated, had been agreed for between the plaintiff and defendant absolutely, or on condition, only, of the house being properly furnished; and, in the latter case, whether or not the defendant had broken the condition. Verdict for the plaintiff.