ever, can only be recovered on a count specially framed, and not on the common count for money paid to the use of the defendant; the money having been expended entirely for the satisfaction of the plaintiff.(1) contract. The defendant may obtain a particular of the grounds, Particular breaches of on which the plaintiff seeks to recover back the deposit; and the plaintiff will, at the trial, be confined to such grounds as are stated in the particular; but if a particular has not been given, the plaintiff will be at liberty to prove any ground for rescinding the contract.(2) A payment of the deposit to the agent, (a) who made the Payment to contract with the plaintiff on behalf of the owner of the agent. estate, is a payment to the principal and proof of such payment will be equivalent to proving, that the money passed into the defendant's hands.(3) (1) Camfield v Gilbert, 4 Esp. N. P. C. 221. (2) Squire v Todd, 1 Campb. 293. (3) D. of Norfolk v Worthy, 1 Campb. 339. (a) Vide Anderson v The President, &c. of the Highland Turnpike, 16 Johns. Rep. 86, CHAP. IV. Of Evidence in an Action of Assumpsit, for the use and THE action for use and occupation affords the most Nature of the convenient remedy for the recovery of rents, where the action. demise is not by deed. At common law, difficulties frequently occurred in recovering in this form of action: for wherever there had been a parol demise, upon which a certain rent was reserved, the courts of law looked upon contract as one respecting the reality, and held that the action of assumpsit, to recover the reserved rent, could not the 39 be maintained, (1) though they allowed it to be brought on a mere promise to pay a sum of money for the use of the premises.(2) But this difficulty has been removed by the, statute 11 G. 2. c. 19. s. 14., which enacts, that where the agreement is not by deed, the landlord may recover a reasonable satisfaction for the lands or hereditaments held or occupied by the defendant, in an action on the case for the use and occupation; and if, on the trial of such action, any paro demise or agreement (not by deed) shall appear in evidence, reserving a certain rent, the plaintiff shall not therefore be nonsuited, but may make use thereof as evidence of the quantum of the damages to be recovered. The statute expressly excepts cases where there has been a demise or agreement by deed, in which cases still, as at common law, the action of assumpsit will not lie.(a) This has been understood as applying only to such deeds as contain words of present demise, or covenants for payment of rent; for if the deed does not amount to an actual demise, but is merely an agreement for a future lease, it will not prevent the plaintiff from recovering in this action.(3)(b) (1) Roll. Ab. 7. (0) pl. 1 Brett v Read, Cro. Car. 343. (2) Dartnal v Morgan, Cro, Jac. 598. Johnson v May, 3 Lev. 150. (3) Elliott v Rogers, 4 Esp. N. P. C. 56. (a) Vide Codman and another v Jenkins, 14 Mass. Rep. 93. The statute giving an action for use and occupation, seems to apply only to the case of a demise, and where there exists the relation of landlord and tenant found ed on some agreement creating that relation; and if a person enters under a contract for a de ed, that relation does not exist; and on his refusing to perform the contract he becomes a trespasser, and an action for mesne profits is the proper remedy. Smith v Stewart, 6 Johns. Rep. 46. Et see Pott ▾ Lesher, 1 Yeates Rep. 576. (b) Assumpsit for use and occupation will lie against a lessee by deed, who holds over after the expiration of the term; and it lies against a tenant holding under a covenant contained in the expired lease for a renewal. Abeel v Radcliff, 13 Johns. Rep. 297. So, the action lies against a tenant holding by the implied permission of the landlord. Osgood v Dewey, 13 Johns. Rep. 240. pre The declaration states generally the nature of the mises, and the use and occupation of the defendant by the permission of the plaintiff; for which occupation the plaintiff seeks to recover a specific sum, or so much as he reasonably deserves. It is not necessary to set forth the demise, or the entry of the lessee, or the time when the rent became due, the action being maintainable in its most general form. Nor is it necessary to state the parish in which the premises are situated ;(1) sometimes it would be inconvenient to require such a statement, as the plaintiff might be turned round, upon a false description.(2) The locality of the premises, therefore, need not be mentioned; but as an averment of the local description cannot be rejected as irrelevant, the situation, if described at all, must be truly described, and the proof must correspond with the description. (3) Declaration. 69 The defendant's occupation of the premises must be Occupation of proved,(a) or, if he has not himself occupied, an occupa premises. tion by his tenant; for an occupation by the defendant's tenant is, as far as respects the plaintiff, an occupation by the defendant himself. (4) But if the plaintiff has recognized another person as his tenant, he cannot afterwards charge the defendant. The plaintiff will have to prove further, that the defendant occupied by his permission, or by the permission of those under whom he claims; and this may be shewn by the proof of the demise or agreement or of former pay (1) King v Fraser, 6 East, 348. which was an action of debt for use and occupation. (2) 6 East,348.by Lawrence J. (3) Guest v Caumont,3 Campb. 235. See cases as to variances in (4) Bull v Sibbs, 8 T. R. 327. (a) The husband is not liable in an action for use and occupation, to pay for the enjoyment of a house, by his wife, dum sola. Richardson v Hall, 1 Broderip & Bingham, 50. 70 ments of rent. If the occupation is founded upon a written contract, the writing must be produced, as the best evidence and if, from defect of stamp, it should be inadmissible, the plaintiff will not be allowed to go into general evidence of the holding.(1) But where parol evidence is offered to prove a tenancy, it is not a valid objection that there is some written agreement relative to the holding, unless it should appear that the agreement was between the parties as landlord and tenant, and that it continued in force to the very time to which the parol evidence applies.(2) The defendant, who has obtained possession, or holds under the plaintiff, will not be allowed to impeach his title,(a) nor to shew, that the title, which he has recognized, has expired,(3) A submission, by the defendant, to a distress for rent, stated in the notice of distress to be due from him as tenant to the distrainer, will be an acknowledgment of the tenancy, and preclude him from disputing the title of his landlord.(4) When his occupation has once commenced, he will be liable to the payment of rent, until the occupation is legally determined; and it will be incumbent on him to prove the determination of his estate and interest, if he resist the payment of rent subsequent to (1) R. v St. Paul's Bedford, 6 T. R. 452. Hodges v. Drakeford, 1 New Rep. 271. (2) Doe dem. Wood v Morris, 12 East, 237. (3) Cooke v Loxley, 5 T. R. 4. Balls v Westwood, 2 Campb.11. Phipps v Sculthorpe, 1 Barn.Ald. 50. (4) Panton v Jones, 3 Campb. 372. (a) Acc. Osgood v Dewey, 13 Johns. Rep. 240. A tenant of a mortgagor, in possession, after the mortgage has become forfeited, during the continuance of the lease from the mortgagor, may attorn to, and take a lease from the mortgagee; and in an action for use and occupation brought against him by the mortgagor, he may set up such attornment as a legal defence. Jones v Clark & Stewart, 20 Johnt. Rep. 51. his giving up the possession. If a notice to quit is necessary, and he quits the premises without having given the requisite notice, and without the consent of the landlord, the landlord may still consider him as his tenant.(1) But the landlord may dispense with the notice by parol, and if the parties make a parol agreement, the one to deliver up possession before the expiration of his tenancy, and the other to accept it, and no claims should be made for rent accruing after giving up the premises, in such a case the plaintiff would not be entitled to recover rent subsequent to the termination of the occupation.(2)(a) (1) Redpath v Roberts, 3 Esp, (2) Whithead v Clifford, 5 Taunt. N. P. C. 225. 518. (a) As to the measure of damages in this action, vide Abeel v Radcliffe, 15 Johns. Rep. 505. CHAP. V. Of Evidence in Assumpsit on Awards, on an Attorney's IT is proposed, in the present chapter, to consider the requisite evidence in some other actions of assumpsit: First, of the evidence in assumpsit on awards; Secondly, in assumpsit on an attorney's bill; Thirdly, in assumpsit on the warranty of a horse; Fourthly, in assumpsit on a special contract for goods sold, &c.; Fifthly, of evidence on the common counts in the general indebitatus åssumpsit, for goods sold, money paid, &c. First, of evidence in assumpsit on an award. The general proofs, in an action upon an award, relate to the submission of the parties to a reference, the award of the arbitrator, and the non-performance by the defend ant. Assumpsit on awards. 71 |