2. By the deed of conveyance the consideration was expressed to be, and, in fact, was, the giving of certain bills of exchange, accepted by the defendant A. B.

3. The defendant A. B. accepted and delivered the said bills of exchange to the plaintiff, who has negotiated some of them. None of them have yet matured.

4. The defendant A. B. does not admit that the defendant E. F. had notice at any time of the plaintiff's alleged lien.

1. He has no knowledge of and does not admit any of the allegations contained in paragraph 1 of the statement of claim. 2. He denies that he gave no consideration for the conveyance to him of the 14th of July, 1883.

3. The said conveyance was made to the defendant C. D. in consideration of his guaranteeing payment of the defendant A. B.'s overdrawn account to the L. & C. Banking Company. The defendant C. D. has been compelled to pay £750 upon his said guarantee, and is still liable to pay large sums thereon.

The origin of the action of use and occupation.

What the plaintiff

must prove.

Use and Cccupation (@).

Claim by Railway Company (Purchasers) against Vendor for
Use and Occupation.

1. By an agreement in writing dated the 14th of August, 1880, and made between the plaintiffs and the defendant, the

(a) Use and occupation.]-This action is given by 11 Geo. 2, c. 19. s. 14, which provides that it shall be lawful for landlords, where the agreement is not by deed, to recover a reasonable satisfaction for the lands, tenements, or hereditaments held or occupied by the defendants. in an action for the use and occupation of what was so held or enjoyed: and if 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 shall not therefore be non-suited, but may make use thereof as evidence of the quantum of damages to be recovered.

The plaintiff must prove-1. That the defendant came in under him or acknowledged his title by payment of rent or otherwise; 2. The ocenpation by the defendant; and 3. The amount of rent either expressly reserved or due on the footing of a quantum meruit.

defendant agreed to sell to the plaintiffs for £2,000 his warehouse and premises, No. 200, Water Lane, in the city of London, such sale to be completed on the 29th of September, 1880.

2. The plaintiffs have duly completed the sale and paid the purchase money and interest thereon from the 29th of September, 1880.

3. The defendant retained and remained in the use and occu

Title.]—If the plaintiff has not demised or given possession to the defendant, it would seem he must show that the estate was vested in him at the time from which he claims. Mortgagees may maintain this action. (Rowson v. Eicke, 7 Ad. & E. 451.) The owner may sue (although he has mortgaged his estate), until the mortgagee gives notice to the tenant to pay rent to him. Tenants in common may join in the action where rent has been paid to their joint agent, that being evidence of a joint letting. (Last v. Dinn, 28 L. J. Ex. 94.)

The plaintiff's title is generally established by the production of a writing or agreement, which is prove in the usual manner, or, in its absence, by payment of rent by the defendant or other circumstance, such as his submitting to a distress.

It would appear that there need be no interest or reversion left in the plaintiff to maintain this action, as where a person demises all the residue of his term to the defendant (Pollock v. Stacey, 9 Q. B. 1033), it has been held that such a demise operates as an assignment (Beardman v. Wilson, L. R. 4 C. P. 57.)

What title the plaintiff must have.

Occupation of defendant.]—A person who has agreed to take premises Occupation but has not entered, cannot be sued in this action, as an occupation, by the either actual or constructive, is necessary (Towne v. D'Heinrich, 22 L. J. defendant C. P. 219); and it seems that a constructive occupation will not be suffi- essential. cient in the absence of an actual demise. (Atkins v. Humphrey, 2 C. B. 654.) An occupation prior to the date of assignment of the reversion to the plaintiff will not enable him to recover for use and occupation prior to the assignment. (Mortimer v. Preedy, 3 M. & W. 602.) Adverse possession by the defendant will not enable plaintiff to maintain the action, as the occupation must be with his permission. (Tew v. Jones, 13 M. & W. 12); but a tenancy at sufferance, arising from occupation after expiry of lease is sufficient, though the defendant continues to hold as tenant to a stranger. (Hellier v. Sillcox, 19 L. J. Q. B. 295.) Occupation by a third person by permission of defendant, or by his tenant or assignee, is sufficient, provided in the latter case the plaintiff has not recognized the assignee as his tenant. (Shins v. Dillon, 1 Ir. R. C. L. Ex. 227.)

If two persons sign an agreement to become tenants, and one enters, both can be sued for use and occupation. (Glen v. Dungey, 4 Ex. 61.) But where one of two joint lessees holds over, the other is not liable for the occupation of the former. (Draper v. Crofts, 15 M. & W. 166.)

It is not necessary that there should be an express contract creating The relathe relation of landlord and tenant, as it may be implied; as where a tion of vendee enters after contract, and the sale goes off, and he remains in landlord occupation afterwards. (See Crouch v. Tregonning, L. R. 7 Ex. 88; and tenant Leggott v. Metrop. Rail. Co., L. R. 5 Ch. 716.) But the action will not lie where the defendant enters under an agreement for a lease, which, it turns out, the plaintiff cannot grant for want of title. (Rumball v. Wright, 1 C. & P. 589.)

One co-tenant who occupies a house or farm alone taking the full benefit thereof, without excluding the others, is not able to them for

may be

implied.

The expiry of plaintiff's title a defence.

What

of a term as constitutes a defence.

pation of the warehouse and premises from the 29th of September, 1880, until the 29th of September, 1881.

4. The fair value of the warehouse and premises was and is £100 per annum.

The plaintiffs claim £100.

use and occupation. (McMahon v. Burchell, 2 Phill. Rep. 127; Henderson v. Eason, 12 Q. B. 986.)

As to the owner's right where there has been a wrongful entry on the land, to waive the trespass and to sue for use and occupation, see Turner v. Cameron Coal Co. (5 Exch. 932).

Defences. Expiry of plaintiff's title.]-If before the occupation in reference to which the claim is made, the plaintiff's interest has expired, this is a good defence, assuming that the defendant has paid his rent to the person claiming as against the plaintiff, as where the plaintiff's interest has become forfeited to the lord of the manor under whom the defendant has commenced a fresh holding and paid rent, after having renounced the plaintiff's title (Balls v. Westwood, 2 Camp. 11), or where he has paid rent to a bona fide claimant really entitled to the premises, under whom he has commenced a fresh tenancy (Mountnoy v. Collier, 22 L. J. Q. B. 124); or where he has paid the rent to a mortgagee of the plaintiff under legal compulsion (Hickman v. Machin, 28 L. J. Ex. 310).

Surrender accepted.]—If the landlord has accepted another person as amounts to tenant, and the latter has entered with the consent of the defendant. such a this operates as a surrender (Nickells v. Atherstone, 10 Q. B. 944), even surrender though the demise be by deed (Davison v. Gent, 26 L. J. Ex. 122). If the landlord has accepted the key of the premises, this operates as a surrender without the acceptance of another tenant. (Dodd v. Acklorn, 6 M. & G. 672.) Or, if after refusal of the key, which the tenant leaves behind, the landlord enters and puts up notice that the premises are to be let. (Phené v. Popplewell, 31 L. J. C. P. 235.) Anything which amounts to an agreement by the tenant to abandon and by the landlord to resume possession, creates a surrender. (Ib.) Where a tenant on lease has quitted the demised premises before the expiration of the term, and has sent the key to the landlord with the intention of giving up possession, the mere fact that the landlord has received the key and attempted unsuccessfully to re-let does not estop him from alleging that the tenancy still subsists. And if afterwards, before the expiration of the term, the landlord re-lets the premises, the surrender by operation of law takes effect from such re-letting, and does not relate back to the original receipt of the key. (Oastler v. Henderson, 46 L. J. Com. Law, 607, explaining Phené v. Popplewell.)

Eviction by the landlord

from part

In certain cases the consent of the landlord is not necessary to complete the surrender, as where furnished lodgings are let in a state unfit for occupation on account of being infested with vermin, and the tenant leaves in consequence. (Smith v. Marrable, 11 M. & W. 5; Campbell v. Wenlock, 4 F. & F. 716; Wilson v. Finch Hatton, 46 L. J. Q. B. 489.) This would not apply to the case of an unfurnished house. (12 M. & W. 68, 86.) A landlord omitting to repair pursuant to his covenant, whereby the premises become unfit for profitable occupation would not exempt the tenant from liability for rent in the event of his quitting. (Roscoe, Ev. 13th ed. 345.) But the tenant could counter-claim in damages.

Eriction.]-An eviction by the landlord of the tenant or his subtenant is a defence (Prentice v. Elliot, 5 M. & W. 606; Burn v. Phelps, 1 Stark. 94); and where the premises are let at an entire rent, eviction from part by the landlord, when the tenant quits the residue, is a good

Claim by Owner of Land for Compensation agreed to be paid by the Defendant for Occupation of Land pending a sale to him.

1. On the 24th of June, 1879, the defendant entered into possession, and has ever since continued in the use and occupation of the Farm, Bexley, in the county of South

ampton, the property of the plaintiff.

defence.

defence as to such entire rent while the eviction continues. (Morrison of the prev. Chadwick, 7 C. B. 266; Upton v. Townend, 25 L. J. C. P. 44.) But a mises a distinction must be observed between expulsion from a part of the premises demised and from something over which the tenant has only an easement, as in the latter case he would not by quitting exonerate himself from liability to an action for use and occupation of the other premises. (Pellat v. Boosey, 31 L. J. C. P. 281.) And an eviction by a stranger by title paramount from part of the premises is only a ground for having the rent apportioned

A threat of expulsion by a person entitled to possession and a conse- Threat of quent attornment or giving up possession to him are equivalent to an expulsion, eviction. (Mayor of Poole v. Whitt, 15 M. & W. 571; Carpenter v. when Parker, 27 L. J. C. P. 78.) But it is no eviction that the tenant left the equivalent premises in apprehension of a distress by the superior landlord. (Rickett to an v. Tullick, 6 C. & P. 66.)

A mere trespass is not an eviction. (Hodgskin v. Queenborough, Willes, 13, n. (b).) See, as to what constitutes an eviction, Upton v. Townend, supra; Wheeler v. Stevenson, 30 L. J. Ex. 46; Pellat v. Boosey, supra.

A landlord cannot treat the same person as a trespasser and a tenant. Therefore where the plaintiff sued in ejectment he was held not to be entitled afterwards to sue for use and occupation. (Birch v. Wright,

1 T. R. 378.

Illegality.]—See several cases cited under the head of Illegality, ante, pp. 355-6, bearing on this subject.

Payment.]-Where there has been an assignment of the reversion the payment of rent to the lessor before notice of the assignment is a good defence. (4 Anne, c. 16, s. 10.) But payment to the lessor before the rent day is no defence if before the rent day the defendant received notice of the assignment. (De Nicholls v. Saunders, L. R. 5 C. P. 589.) Where payment has been made in advance and no notice has been given before quarter-day, the advance becomes payment. (Cook v. Guerra, L. R. 7 C. P. 132.)

Payment of rates, which the tenant may deduct from the rent under 32 & 33 Vict. c. 41, s. 1, or under 37 & 38 Vict. c. 54, ss. 5, 6, 8, 9, or of the land-tax, is in effect payment by the tenant pro tanto of the rent next falling due. It cannot be deducted from rent falling due subsequently, at least as regards the land-tax. (Cumming v. Bedborough, 15 M. & W. 438.) See as to the right of deducting such sums, Ryan v. Thomson, L. R. 3 C. P. 144; Duke of Devonshire v. The Barrow Hematite Steel Co., 46 L. J. 435 Ch.)

The amount realised by a sale under a distress would be a defence so far as such amount, but not the value of the goods distrained. If the goods have been sold at too low a rate, the defendant's remedy was formerly by a separate action (Efford v. Burgess, 1 M. & Rob. 23), but now an unjustifiable sale may be made the subject of a counter-claim.

eviction.

What pay

ment is a

defence.

2. On the 10th of January, 1880, the defendant in writing agreed with the plaintiff to purchase the said farm for £1,963, and that until the payment of the said sum he would pay £100 a year to the plaintiff for the use and occupation of the farm. 3. The defendant has refused to perform the said agreement, and has not paid the said sum of £1,963.

The plaintiff claims £400.

Defence.

1. The defendant was evicted from the whole of the farm on the 24th of June, 1880, by A. B., the true owner thereof.

9. The plaintiff's interest in the farm ceased on the 24th of June, 1880.

3. Before action, that is, on the 17th of November, 1883, the defendant tendered £100 to the plaintiff for the use and occupation of the farm from June 24, 1879, to June 24, 1880.

4. The defendant has paid the sum of £100 into Court, and says it is enough to satisfy the plaintiff's claim for the use and occupation of the farm up to the 24th of June, 1880.

Wager.
See Illegality.

Waiver.

See Landlord and Tenant-Recovery of Land.

Warehouse.

Claim for Warehouse Rent.

The plaintiff's claim is for warehouse rent for 80 hogsheads of sugar, which the plaintiff received into his warehouse at an agreed rent of £5 per month.