on the trial of any issue, or on any inquisition of damages, may, if they shall think fit, give damages in the nature of interest over and above the value of the goods at the time of the conversion.

Costs.-On the subject of costs, see ante, p. 37, post, 1404.

Judgment. The judgment in this action is for the recovery of damages only (d), and in this respect it differs from the judgment in the analogous action of detinue, which is for the recovery of the goods in question, or the value thereof, if the plaintiff cannot have the goods. See ante, p. 663.

(d) Knight v. Bourne, Cro. Eliz. 116.

VOL. II.

Y Y

CHAPTER XXXIX.

USE AND OCCUPATION (a).

FORMERLY an action of assumpsit (b) for rent arrear upon a parol lease for years could not have been maintained, either pending (c), or after the expiration of the term (d), because it was considered as a real contract: the only remedies were by distress or action of debt (e). But on a mere promise to pay a sum of money (f), or so much as the plaintiff deserved to have (g), in consideration of the plaintiff's permitting the defendant to occupy lands, &c., an action of assumpsit might have been maintained by the common law. In this case the objection as to the contract being real, was removed by considering the permission to occupy as not amounting to a lease, and the mere promise to pay a sum of money in consideration of such permission, as not amounting to a reservation of rent.

The action for use and occupation is one of contract, and is founded on the relationship of landlord and tenant; it, therefore, requires evidence of an occupation by the permission of, and under a contract with, the plaintiff. The mere assent of the plaintiff to a letting by a third person is not sufficient (h). "If the court knew nothing in such an action, except that the plaintiff has the title to the land, and that the defendant has enjoyed the land, as the law presumes that a man is to pay for his enjoyment of the land, to the party who is entitled to it, the court, under such circumstances, will support the action for use and occupation. But if the taking possession was by a trespasser, a trespass cannot be turned into a contract, upon the doctrine as to waiving a tort and suing on the ground of an implied contract. So, if the party sued is in possession, having come in and claiming to be in under another person, there can be no action for use and occupation, for you cannot turn a contract with one person into a contract with another." Per

(a) See ante, p. 630.

(b) Brett v. Read, Sir W. Jones, 329; Cro. Car. 343.

(c) 1 Roll. Abr. 7, (0.) pl. 1. (d) Ibid., pl. 2. See also Green v. Harrington, Hob. 284; Hutt. 34, S. C.

(e) The remedy, however, by debt or assumpsit, so far as the indebitatus counts are concerned, is now identical. See ante, p. 69.

(f) Dartnal v. Morgan, Cro. Jac. 598; Chapman v. Southwicke, 1 Lev. 204; Johnson v. May, 3 Lev. 150.

(g) How v. Norton, 1 Lev. 179; Mason v. Welland, Skin. 238, 242.

(h) Churchward v. Ford, 26 L. J., Exch. 354; 2 H. & N. 446. In this case a notice from the plaintiff to the defendant to pay rent to him was proved. See post, p. 1388.

Pollock, C. B., S. C. Where, however, a lease was granted by a writing, not under seal, which contained an undertaking by the lessor, for himself and assigns, for quiet enjoyment, it was held, that his assignee might maintain the action, for, the lessor having granted for himself and assigns, the permission of any person who might become his assignee was virtually included (i). Though the relationship of landlord and tenant must exist, it is not necessary that there should be any reversion in the plaintiff' (k):

In order more effectually to obviate the difficulties which occurred in the recovery of rent, where the demise was not by deed, it was enacted, by 11 Geo. II. c. 19, s. 14, "that landlords, where the agreement is not by deed, may 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 evidence 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 in such action shall not therefore be nonsuited, but may make use thereof, as an evidence of the quantum of the damages to be recovered." Under this statute, a landlord who has rent owing to him is allowed to recover, not the rent, but an equivalent for the rent, a reasonable satisfaction for the use and occupation of the premises, which have been holden and enjoyed under the demise, by action for the use and occupation: and it is provided on his behalf, that, if the demise be produced against him, it shall not defeat his action, as it would have done before the statute; but the fixed rent shall be only used as a medium, by which the uncertain damages to be recovered in this form of action shall be liquidated. A reasonable satisfaction for the use and occupation is the thing intended to be given; the form of action marked out (being enlarged by a necessary construction, so as to be allowed to be maintained without an express promise), is the proper form in which such reasonable satisfaction is to be recovered; but, the reasonable satisfaction, which in its own nature must apply to something specific by which it can be estimated, being here given for use and occupation, and for nothing else, it is a remedy which, in its own nature, is not co-extensive with a contract for rent, nor does it seem to have been within the scope and purview of the statute to make this remedy co-extensive with all the remedies. for the recovery of rents claimed to be due by the mere force of the contract for rent. The statute meant to provide an easy remedy in the simple cases of actual occupation, leaving other more complicated cases to their ordinary remedy (1).

The statute says, "lands, tenements, and hereditaments." The

(i) Standen v. Christmas, 10 Q. B. 135. (k) Pollock v. Stacey, 9 Q. B. 1033.

(1) Per Eyre, C. J., delivering judgment in Naish v. Tatlock, 2 H. Bl. 323.

action, therefore, will lie for the use and occupation of furniture (m), or an incorporeal hereditament, e. g. a fishery (n).

The statute provides a remedy in such cases only, where the agreement is not by deed; but it has been held, that, where the defendant held under a mere agreement for a lease, which did not amount to an actual demise, the plaintiff might maintain an action. for the use and occupation, although such agreement was by deed (o). So where a lease containing the usual words "signed, sealed, and delivered," was executed by both parties, pursuant to a previous agreement, by which it was provided, that the lessee should pay the lessor (the plaintiff) 1007. for the plaintiff's good-will and fixtures, but that the lease should not be delivered, and should remain in the plaintiff's possession until payment of that sum; it was held, that the jury were warranted in finding, that there had been no delivery of the deed so as to operate as a lease; that a tenancy from year to year only, therefore, existed, and that the defendant (who was the assignee in bankruptcy of the lessee, and had accepted the lease) was liable in an action for use and occupation (p).

A corporation aggregate may sue for use and occupation, where the tenant has held premises under them without deed, and previously paid rent (q). So they may be sued, where they have actually occupied land by the permission of the owner, though there be no contract under seal; and where the corporation is a railway company (which is authorized by the 97th sect. of the 8 & 9 Vict. c. 16, to make, by their directors, valid contracts by parol, in cases where private persons could make such contracts), such parol contract may, in the absence of evidence to the contrary, be presumed (r). See ante, p. 70. A director of a company, provisionally registered, who has taken land for the use of, and which is occupied by, the company, may be sued in use and occupation, unless he has expressly taken the premises as such director on behalf of the company (s).

In an action for use and occupation of apartments in the plaintiff's house during half a year, it appeared that the rent was claimed in consequence of the defendant having neglected to give a notice to quit; the defence set up was, that the plaintiff, after the defendant had quitted, had put up a bill in the window but Lord Kenyon, C. J., expressed an opinion, that the defence insisted on would afford no answer to the plaintiff's action. It was for the

benefit of the defendant that the apartments should be let; nor would he infer from the circumstance of the party's endeavouring to let them, that the contract was put an end to; that there must be other circumstances to show it, and not merely an act of so equivocal a kind (t). So where the landlord lit a fire in the apartments his tenant had left, and made use of it when lighted. But if the landlord, while his tenant is in the possession and use of apartments, enters and uses them or any part of them, that will deprive him of his claim to rent (u). See Upton v. Townend, post, p. 1391.

The delivery of the keys of the house by an agent of the tenant to a female servant at the house of the landlord, was held by Lord Ellenborough, C. J., not sufficient to prove a determination of the tenancy, the female servant not having been called, and it not appearing that the keys had ever reached the plaintiff and been accepted by him (x). A tenancy from year to year, created by parol, is not determined by a parol license from the landlord to the tenant to quit in the middle of a quarter, and the tenant's quitting the premises accordingly (y). The Statute of Frauds requires a deed or note in writing, or a surrender by operation of law (z). See ante, p. 834. The necessity of a written surrender may be dispensed with by the admission of another tenant; and where a lessee quitted, in the middle of his term, apartments which he had taken for a year, and the lessor let them to another tenant, who occupied a short time; it was held, that the lessor could not recover in an action for use and occupation against the lessee, for a subsequent portion of the year, during which the apartments had been unoccupied; for the lessor, having precluded the defendant from occupying the apartments by letting them to another, must be taken to have rescinded the agreement, and to have dispensed with the necessity of a surrender (a). If the lessee accepts from the lessor a new lease, that is a surrender of the old one, even though the new lease be for a shorter term or by parol. So where there has been an actual taking of possession by the landlord with the assent of the tenant, the case falls within the reason of the authorities, and amounts to a surrender by act and operation of law (b). Thus, where the defendant took premises from the plaintiffs under a written agreement; before any rent became due, the defendant's wife delivered up the key to one of the plaintiffs (who alone had acted in the matter, except as to the execution of

(t) Redpath v. Roberts, 3 Esp. 225. This doctrine was recognized by Lord Ellenborough, C. J., in Mills v. Bottomly, Middlx. Sitt. after M. T. 58 Geo. III., B. R.

(u) Griffith v. Hodges, 1 C. & P. 419. (x) Harland v. Bromley, 1 Stark. 455. (y) Mollett v. Brayne, 2 Campb. 104. See remark of Gibbs, C. J., on this case, in Whitehead v. Clifford, 5 Taunt. 519. In

Walls v. Atcheson, 2 C. & P. 268, Park, J., says, that he should like to have this case of Mollett v. Brayne reconsidered.

(2) Thomas v. Cook, 2 B. & Ald. 119, cited by Patteson, J., in Gore v. Wright, 8 A. & E. 121.

(a) Walls v. Atcheson, 3 Bingh. 462. (b) Per Tindal, C. J., in Dodd v. Acklom, 7 Scott's N. R. 415.