66 Landlord and breach, whether of the same or of any other covenant or con- CH. XII. s. 9. dition (b); and the breaches of some covenants are so continuing" in their nature, that a waiver during their continuance is of (Forfeiture). little practical value to the tenant (c). waiver. The main act of waiver is a distress for rent (d); but an action Acts of for rent also works a forfeiture (e), and so does acceptance of it (ƒ), or even demand of it, if unqualified (g). In all these cases the rent must have accrued due after the forfeiture; and it must also be borne in mind that when once the landlord has applied the proviso for re-entry to a case of forfeiture, so as to issue a writ of ejectment upon it, no distress or similar act operates as a waiver (h), because the landlord has exercised an irrevocable determination of the tenancy, whereas distress can only be made during the continuance of a tenancy, but any distress made after writ in ejectment is unlawful (i). (d) Relief against Forfeiture. forfeiture for Against forfeiture for non-payment of rent the tenant can obtain Relief against relief from the High Court under the 210th section of the Common non-payment forfeiture for other than Law Procedure Act, 1852, and the 1st section of the Common Law of rent. Procedure Act, 1860, within six months after execution executed (k). Against forfeiture for breaches of covenants or conditions other Relief against than those for rent, and except a covenant or condition against breach of assignment or underletting, or for forfeiture on bankruptcy, or covenants taking in execution of the tenant's interest, or in a mining lease that for rent for inspection, the tenant can obtain relief from the High Court under the 14th section of the Conveyancing and Law of Property Act, 1881, 44 & 45 Vict. c. 41, as amended by the Conveyancing and Law of Property Act, 1892, 55 & 56 Vict. c. 13, the 14th section of the Act of 1881 providing that a lessor shall not enforce the proviso for re-entry without previous notice to the tenant, specifying the particular breach complained of, and if the breach is capable of remedy, requiring the lessee to remedy the breach, and in any case requiring the lessee to make compensation in money for the breach." (b) 23 & 24 Vict. c. 38, s. 6. (c) See as to insurance, Doe v. Woodbridge (1829), 9 B. & C. 376; and as to repair, Doe v. Jones (1850), 5 Exch. 490. (d) Ward v. Day, ubi sup. Shepherd v. Berger, [1891] 1 Q. B. 597. (e) Dendy v. Nicholl (1858), 4 C. B., N. S. 476. See (f) Doe v. Rees (1838), 4 B. N. C. 384. (g) Doe v. Birch (1836), 1 M. & W. 402. (h) Hare v. Elms, [1893] 1 Q. B. 604. (k) Grimwood v. Moss (1872), L. R., 7 CH. XII. s. 10. Landlord and Under Dis Act, s. 14. SECT. 10.-The Action for Use and Occupation. Debt for use and occupation lay at common law, and was not defeated by proof of a demise, not under seal, reserving a certain rent (). And before the Distress Rent Act, 1737, 11 Geo. 2, c. 19, s. 14, it had been frequently held, that an action of assumpsit was maintainable for the occupation of land, notwithstanding the objection that rent sounded in the realty, and could not be the subject of a mere personal action; but that wherever there had been an actual lease, this action would not lie (m). Under that statute, the landlord may in all cases maintain an tress for Rent action for the use and occupation of the premises, unless there be a demise thereof under seal (n). And this action is maintainable for the actual use and occupation even of an incorporeal hereditament; or for the enjoyment of a mere personal right, such as a right to fish (0). Where there is a demise. Effect of sur render or rent due. But where there is a parol demise, the landlord will not be entitled to sue the tenant for rent, in an action for use and occupation, unless an action for rent could be maintained on the demise itself (p). And, by the common law, one of the consequences of this rule eviction before was, that if the tenant were evicted, or the term were surrendered by operation of law, whilst a quarter's rent was current, an action for use and occupation could not be maintained, to recover a proportion of the rent from the preceding quarter-day to the time of such eviction or surrender (q). But by virtue of the Apportionment Act, 1870 (r), such an action may now be maintained; although not before the time when the entire rent would have been payable (s). Apportion ment. If there be a demise it must, in general, be produced. Where the demise is in writing, it must still, generally speaking, be produced and proved by the plaintiff at the trial, in order to show the terms of the tenancy (t). But it has been held that, although an action for the rent reserved by the demise may not be maintainable against the (1) Gibson v. Kirk (1841), 1 Q. B. 850. (n) An agent who lets land for an un- (0) Jones v. Reynolds (1836), 4 A. & E. 805 Bird v. Higginson (1835), 2 A. & E. 696; Holford v. Pritchard (1849), Exch. 793. (p) See Hall v. Burgess (1826), 5 B. 3 & C. 332. (g) Morrison v. Chadwick (1849), 7 C. B. 266, 283. As to what amounts to an eviction, see Upton v. Townend (1855), 17 C. B. 30, 64; Newby v. Sharpe (1878), 8 Ch. D. 39, C. A. (r) 33 & 34 Vict. c. 35, ss. 2, 4. (s) See Swansea Bank v. Thomas (1879), 4 Ex. D. 94. (t) Brewer v. Palmer (1800), 3 Esp. 213; recognised in Ramsbottom v. Tunbridge (1814), 2 M. & S. 434; 15 R. R. 303. Landlord and tenant, still, if he has actually occupied the premises, it is a CH. XII. s. 10. question for the jury, whether he so occupied on an implied Tenant agreement to pay a reasonable compensation in respect of such occupation (u). And there are cases in which this action will lie, even although there has been no actual demise. Thus, where the plaintiff was admitted customary tenant of a cottage, after the death of his mother, and the defendant,-who had resided in it with the mother rent free, until her death,-continued in possession after that time by permission of the plaintiff, but had paid no rent: it was held that the plaintiff could maintain an action for use and occupation against him (x). So it has been held, that a corporation may be sued in this form of action, in respect of the actual occupation of premises, although there has been no contract made by them under seal (y). (Use and Occupation). Action will lie where there is no demise, But still it must be borne in mind, that this action is founded if there be evidence of a upon contract; and that unless there be a contract, express or contract eximplied between the parties, it cannot be maintained (2). When, press or implied. therefore, there is no evidence of a demise to the defendant, there must be some evidence that he held by permission of the plaintiff, and on the terms either express or implied, that he was to pay the plaintiff for the occupation (a). And accordingly, where the person who is in possession of the land is a mere trespasser, the plaintiff cannot waive the trespass and bring an action for use and occupation (b). . So, a person who has never been in actual possession of the premises, although the estate be in him, cannot maintain this action against an occupier, unless there has been a demise (c). But where a tenant holds over after the expiration or determina- Tenant holdtion of his term, the landlord may waive his right to eject, and sue for use and occupation (d). ing over. And where there is a contract, the plaintiff can recover only Plaintiff can according to the contract. And, therefore, where there was an according to recover only (u) Smith v. Eldridge (1854), 15 C. B. 236. V. (x) Hellier v. Sillcox (1850), 19 L. J., Q. B. 295; per Pollock, C. B., and Bramwell, B., Churchward Ford (1857), 2 H. & N. 446, 449, 450. (y) Finlay v. Bristol and Exeter Rail. Co. (1852), 7 Ex. 409; Lowe v. London and North-Western Rail. Co. (1852), 18 Q. B. 632. (z) See Churchward v. Ford (1857), 2 H. & N. 466; Sloper v. Saunders (1860), 29 L. J., Ex. 275; per Ashhurst, J., Birch v. Wright (1786), 1 T. R. 378; per Bayley, J., Hall v. Burgess (1826), 5 B. & C. 332. (a) Per Hill, J., Levi v. Lewis (1861), 9 C. B., N. S. 872; and see Salmon v. Matthews (1841), 8 M. & W. 827, 833. (b) Tew v. Jones (1844), 13 M. & W. 12; and see per Cur., Hellier v. Sillcox (1850), 19 L. J., Q. B. 295; Turner v. Cameron's C. S. C. Co. (1850), 5 Exch. 932, 937. (c) Turner v. Cameron's C. S. C. Co. (1850), 5 Exch. 932. (d) Levi v. Lewis (1861), 9 C. B., N. S. 872, Ex. Ch. ; Ibbs v. Richardson (1839), 9 A. & E. 849. the contract. Tenant (Use and CH. XII. s. 10. agreement to let and take premises "from the 25th March, 1844, Landlord and for a twelvemonth certain, and thence for the continuance of the lessor's interest therein, so long as it should continue, until deterOccupation). mined by six months' notice from the tenant, expiring at any quarter of a year, at the rent of 120l. a year:" it was held that the rent was payable yearly, and that an action for use and occupation would not lie, to recover rent for a quarter ending 25th December, 1845 (e). Entry by lessee neces sary. It would appear from some cases, that the action for use and occupation may be maintained, although the defendant has never entered upon, or actually occupied the premises (ƒ); whilst, on the other hand, it has been held that an actual entry on the premises by the tenant is necessary, in order to entitle the landlord to sue in this form of action (g). And this would seem to be the better opinion (h). (e) Collett v. Curling (1847), 10 Q. B. 785. (f) Izon v. Gorton (1839), 7 Scott, 537, 547; Smith v. Twoari (1841), 2 M. & G. 841; 3 Scott, N. R. 172; Pinero v. Judson (1829), 6 Bing. 206; per Tindal, C. J., Atkins v. Humphrey (1846), 2 C. B. 654. (g) Per Patteson, J.; Woolley v. Wat ling (1836), 7 C. & P. 610; Edge v. Strafford (1831), 1 C. & J. 391; and see How v. Kennett (1835), 3 A. & E. 659. (h) Lowe v. Ross (1850), 5 Exch. 553; and see Towne v. D'Heinrich (1853), 13 C. B. 892. CHAPTER XIII. CONTRACTS FOR SALE OF GOODS. [See Blackburn on Sale, 2nd ed. A.D. 1885; Benjamin on Sale, 4th ed. A.D. 1888; Story on Sales of Personal Property, 4th ed. A.D. 1871; Chalmers on the Sale of Goods Act, 2nd ed. A.D. 1894; Newbolt's Sale of Goods Act, A.D. 1894; Chitty's Statutes, tit." Goods."] |