particular amount or fixed scale of charge; but they must be fair and reasonable. ()

Excessive distresses.-If the lessor distrains goods and chattels beyond what is reasonably and fairly necessary for the purpose of realizing the rent and expenses, the distress is an excessive distress, and he renders himself liable to an action for damages at the suit of the lessee. (m) If he distrains the crops growing in two fields when the crop growing in one would be sufficient when at maturity to satisfy the rent and charges, the distress is an excessive distress. (n) But it is not for every trifling excess that an action is maintainable; it must be disproportionate to some considerable extent. And " if there is but one thing which can be taken, so that it must be taken or the party must go without his distress for taking it no action lies, though it much exceeds the sum for which the distress is taken!" (0)

The action may be brought by a lodger or under-tenant whose goods have been taken as well as by the lessee himself; (p) and if the lessee, after the distress, enters into an agreement with the landlord respecting the sale and disposition of such distress, or authorizes him to dispense with some or all of the usual forms preparatory to a sale, he does not thereby waive or abandon his right of action for the excessive distress. (q)

Of the action for USE AND OCCUPATION.-To obviate difficulties that sometimes occurred in the recovery of rents by action, when the demises were not by deed, it has been enacted, by 11 Geo. 2, c. 19, s. 14, that it shall be lawful for a landlord, where the agreement is not by deed, to 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 any evidence on the trial of such action any parol demise, or any agreement (not being by deed) whereon a certain rent is reserved shall appear, the plaintiff in such action shall not, therefore, be non-suited, but may make use thereof as an evidence of the quantum of damages to be recovered."

To charge a party in an action for use and occupation, it must be proved either that he held under a demise not under seal; or that he actually occupied, or that there has been an occupation by some other

(1) Lyon v. Tomkies, 1 M. & W. 603.

(m) 52 Hen. 3, c. 4. Wells v. Moody, 7 C. & P. 59. Holland v. Bird, 3 M. & Sc. 363; 10 Bing. 15, s. c. Yates v. Tearle, 6 Ad. & E.,

N. s. 282.

(n) Piggott v. Birtles, 1 M. & W. 441. As to the implied promise by the lessor to indemnify his own bailiff or servant executing the

distress when such distress is illegal. Toplis v. Grane, 7 Sc. 620.

(0) Per Lord Ellenborough, Field v. Mitchell, 6 Esp. 71, 72.

(p) Fisher v. Algar, 2 C. & P. 374. (q) Willoughby v. Marshall, 4 D. & R. 539; 2 B. & C. 821, s. c.

parties standing in such a relation to him that their occupation is his, and that he is personally liable for it. (r) An actual personal occupation is not necessary to sustain the action when there is a written contract of demise for a term not exceeding three years, as the lessee "holds" within the words of the statute, although he does not occupy; and "if there is an actual holding, and the power to occupy and enjoy is given by the landlord to the tenant, so far as depends on the landlord, the action for use and occupation is maintainable." (s) But it is otherwise if there is no written contract of demise between the parties, and no actual occupapation or enjoyment. (t)

The lessor may, in this form of action, recover rent agreed to be paid on a written demise, although the premises have become dilapidated and uninhabitable, or have been destroyed or injured by fire, and the tenant has been obliged to quit them. (u) Also the rent or compensation reserved or agreed to be paid for the working of a mine, (x) and compensation for the actual enjoyment of an incorporeal hereditament. (y) The compensation accrues de die in diem, so that if there is no express contract for the payment of rent at specific periods, the lessor is entitled to be paid from day to day so long as the occupation lasts. (2)

Very slight circumstances, such as entry on the land, the putting up a notice or advertisement; sending a woman to clean windows or rooms, or workmen to put up paper, or do repairs, will suffice to establish the fact of actual occupation. (a)

An occupation by an undertenant of the lessee against the will of the latter is the lessee's own occupation as much as if he was himself personally present upon the land. (b) But if one of two joint lessees holds over after the expiration of his lease, without the assent of his co-lessee, the latter is not responsible in respect of the occupation of such co-lessee. (c)

(r) Bull v. Sibbs, 8 T. R. 327. Waring v. King, 8 M. & W. 574. (3) Tindal, C. J., Izon v. Gorton, 5 Bing., N. C., 507; 7 Sc. 547. Erskine, J., Smith v. Twoart, 3 Sc. N. R. 174; Gibbs, C. J., 5 Taunt. 519. Pinero v. Judson, 3 M. & P. 497; 6 Bing. 206, s. c. Woolley v. Watling, 7 C. & P. 610. How v. Kennett, 3 Ad. & E. 665; 5 N. & M. 1, s. c. Gregory v. Badcock, 2 Smith, 18.

(t) Ante, 93, 94. The occupation of the wife before marriage is not the occupation of the husband. Richardson v. Hall, 3 Moore, 307; 1 B & B. 50, s. c.

(u) Baker. Holtpzaffel, 4 Taunt. 45. Izon ▼. Gorton, 7 Sc. 507. Surplice v. Farnsworth,

(2) Packer v. Gibbins, 1 Ad. & E., N. s. 421. Kirkman v. Jervis, 7 Dowl. 678.

(a) Sullivan v Jones, 3 C. & P. 579. Smith v. Towart, 2 M. & Gr. 841.

(b) Harding v. Crethorn, 1 Esp. 57. Ibbs v. Richardson, 9 Ad. & E. 849; 1 P. & D. 618, 8. c. Christy v. Tancred, 9 M. & W. 438. (c) Christy v. Tancred, 9 M. & W. 448; 12 M. & W. 323. Draper v. Crofts, 15 Law J., N. S., Exch. 92.

The actual possession and use by one of two executors of property holden on lease by their testator is not in law a possession and use by both, and does not render both chargeable as joint occupiers in their own right. (d) If a lessor sells or transfers his legal estate and interest in the demised premises to a third party, and the lessee receives notice of the transfer, and is required to pay his rent to the transferee, and refuses, he is liable to an action for use and occupation at the suit of the latter. (e)

The defendant may show that the plaintiff's interest in the premises has expired or has been transferred to some third party, but he is estopped from denying the lessor's original title to grant the property to be enjoyed, (ƒ) and cannot show that he has only the equitable estate, or that he is entitled only as co-executor with others who do not join in the action. (g)

The courts will not, it is said, try a doubtful title in this form of action. (h)

If a tenant has occupied land under a corporation, and paid rent to the corporate body, he may be made liable in an action for use and occupation, although the corporation cannot in general contract, except by virtue of its common seal.(?) If a man is let into possession under an agreement for a lease to be granted at a future time, and occupies and receives the profits of the land, he is liable in this form of action for reasonable compensation to be paid to the owner for the use and enjoyment of the property. If a man takes possession of property as a purchaser, under a contract of purchase and sale, and the vendor is unable to make out a title, and the bargain consequently goes off, the purchaser is not in general bound to pay any compensation or remuneration to the owner for the temporary occupation and enjoyment of the property. (j) But if, after a contract of purchase and sale has gone off, or been abandoned, the intended purchaser continues to occupy and take the rents and profits of the land, by the sufferance and permission of a party who is then entitled to the immediate possession, he is bound to pay a reasonable compensation to such party for the permissive use and occupation of the property. () So if the vendor of a house continues to reside in it after he has sold it, he is

(d) Nation v. Tozer, 1 C. M. & R. 175; 4 Tyr. 561, s. c.

(e) Lumley v. Hodgson, 16 East, 104. Birch v. Wright, 1 T. R. 383. Rennie v. Robinson, 7 Moore, 539.

(f) Phipps v. Sculthorpe, 1 B. & Ald. 50. (g) Dolby v. Iles, 11 Ad. & E. 335; 3 P. & D. 287.

(h) Woodfall. 627.

(i) Mayor of Stafford v. Till, 12 Moore, 260; 4 Bing. 75.

(j) Kirtland v. Pounsett, 2 Taunt. 145. Winterbottom v. Ingham, 14 Law J., N. S. (Q. B.) 298, 300. Hearne v. Tomlin, Peake, 253.

(k) Howard v. Shaw, 8 M. & W. 123. War ing v. King, ib. 571. Hull v. Vaughan, 6 Pr.

157.

not liable in respect of such subsequent residence to an action for use and occupation, () unless it be shown that he was permitted to remain in possession upon the express or implied understanding that the occupation was to be paid for. But it has been holden, that if the tenant or occupier has entered as a trespasser and wrongdoer, and against the will and consent of the lord, and has remained in possession and used and occupied the land, the latter may, if he pleases, waive the tort, and consent to the occupation, and sue the tenant upon the ordinary implied promise to pay a reasonable remuneration for the occupation and enjoyment of the property. (m)

If the owner accepts rent from a trespasser, this of course is a waiver of the tort, and a creation of a tenancy, with its accompanying rights, duties, and responsibilities.

A lessee is not liable for use and occupation after a fiat in bankruptcy has been issued against him, if the assignees accept his interest in the premises, or if, on their refusal, he delivers or tenders the possession of them to the lessor. (n)

Of the TENANT's liability to MAINTAIN and REPAIR the demised premises.

Express covenants and agreements to repair.-When the lessee has entered into an express covenant or agreement to repair, uphold, and keep in repair a house, or any other structure or building demised to him, he is bound to rebuild or reconstruct it if it be burned by an accidental fire, or be blown down by tempest, or destroyed by floods, or by any inevitable accident;(0) for "when the party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. And therefore, if the lessee covenant to repair a house, though it be burned down by lightning, or thrown down by enemies, yet he ought to repair it.” (p)

Thus where a lease was made of a meadow, by which the river Exeran, and the lessee covenanted to sustain and repair the banks, to prevent the water from overflowing, upon pain of forfeiture of ten pounds. And afterwards, "by reason of a great, outrageous, and sudden flood," caused by

(1) Tew v. Jones, 13 M. & W. 12.

(m) Patteson, J., Church v. Imperial Gas Company, 6 Ad. & E. 854. Mayor of Newport v. Saunders, 3 B. & Ad. 412. Holroyd, J., 3 D. & R. 298. Birch v. Wright, T. R. 379, 387.

(n) Slack v. Sharpe, 8 Ad. E. 366; 3 N. &

P. 390. As to the liability of the assignees in such cases, Gibson v. Courthope, 1 D. & R. 206. Naish v. Tatlock, 2 H. Bl. 320.

(o) 40 Ed. 3, fol. 6, pl. 11.

(p) Paradine v. Jane, Aleyn 27; 2 Saund. 421, a. (2).

the subversion of the weirs in Devonshire, the banks were overthrown and perished; it was held, that the lessee was excused from the penalty, because the flood was the act of God, which could not be resisted, but that he was still bound to make and repair the banks of the river in convenient time, because of his own covenant. (q)

A builder covenanted to erect and finish, in a substantial and workmanlike manner, a bridge across the river Usk, and to uphold and keep the said bridge in complete repair for seven years; and an action having been brought against him for a breach of this covenant, he pleaded that he had built the bridge according to his covenant, and kept it in complete repair, and capable of resisting any usual or ordinary flood, and that the said bridge, by the act of God, by a great, unusual, and extraordinary flood of water, such as such bridge, so well built and in complete repair, could not reasonably be expected to resist, by means of the waters of the said flood rushing and pressing against the same was, without the default of the defendant, broken and washed away, &c. ; it was held, that the defendant was nevertheless bound by his covenant to rebuild the bridge; and that if the defendant had wished to protect himself from the consequences of any extraordinary flood, he should have provided therefor by his contract, and should have made a loss of that description an express exception to the general liability. (r)

A tenant for life of a house under a marriage settlement, had covenanted to repair the house during his life, and so leave the same at his death; and an action having been brought against him for a breach of this covenant, he pleaded that three-fourth parts of the house were burnt down, and that he repaired it until it was burnt, and had repaired the residue that was not burnt; and on demurrer to this plea the court held that it constituted no answer at all to the action, for the defendant having covenanted to repair without any exception, it imported that he should at all events repair the house, and in case it were burnt or fell down, should rebuild it. (s) So where a lessee covenanted "to repair, uphold, support, maintain, amend and keep," the demised messuage and premises in needful and necessary repair, and an action having been brought against him for a breach of this covenant, he pleaded that "the house was by accident, and without the default of the defendant or his servants or family, namely, by means of a fire, which accidentally broke out in an adjoining house, and communicated from that to the house in question

(g) Dyer, 33, a. pl. 10.

(r) The Brecknock Co. v. Pritchard, 6 T. R.

750.

(s) Chesterfield v. Bolton, Com. 627.