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Defence to that no property passed to the plaintiff by such alleged sale, and claim for

that the property in the said pony remained and remains in the conversion of a pony.

defendant.

6. The defendant in the alternative further alleges that the plaintiff at the time of his alleged purchase of the said pony knew that the said H. H. L. had dishonestly come by it.

7. If necessary the defendant will allege the said pony to have been obtained by the said H. H. L. by larceny and by trick, and that the alleged sale to the plaintiff was not in market overt.

8. The defendant says the said pony was of the value of £45, not £50.

claim for Conversion of tobacco.

Action for Conversion of Tobacco. 1. On or about the 3rd of December, 1875, the plaintiff, who is a tobacco manufacturer, bought of one H. and became the absolute owner and entitled to the possession of fifty hogsheads of tobacco, then lying in bond at the London and St. Katharine Dock.

2. Afterwards H., without any authority from and in frand of the plaintiff, affected to transfer the tobacco to the order of the defendants, and delivered to the defendants the dockwarrant or other receipt issued by the dock company in respect of the goods, and the defendants otherwise became possessed of the dock-warrant and tobacco in wrong of the plaintiff. H. afterwards absconded.

3. The plaintiff applied to the dock company for delivery of his tobacco ; but they, following the ordinary course of business, refused to comply with his request until the dock-warrant should be produced to them duly signed or indorsed in his the plaintiff's favour.

4. Thereupon the plaintiff applied to the defendants for the dock-warrant and for delivery of his tobacco, but they refused to part with or deliver the same to him, and claimed and still claim to retain the same as security for advances alleged to have been made by them to H. at the time of the delivery to them of the dock-warrant, as in the 2nd paragraph mentioned.

The plaintiff claims :

Use and Occupation (a).

Claim for Use and Occupation. 1. The plaintiffs are a railway company who were authorised Claim for by the M. R. (T. H. E.) Act, 1864, to take for the purposes of use and

occupation.

(a) Use and occupation.]—This action is given by 11 Geo. 2, c. 19, s. 14,

The origin which provides that it shall be lawful for landlords, where the agreement of the action is not by deed, to recover a reasonable satisfaction for the lands, tene

of use and ments, or hereditaments held or occupied by the defendants, in an action

occupation. 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

What the acknowledged his title by payment of rent or otherwise ; 2. The occu

plaintiff pation by the defendant; and 3. The amount of rent either expressly must prove. reserved or due on the footing of a quantum meruit.

Title.]-If the plaintiff has not demised or given possession to the de. What title fendant, it would seem he must show that the legal estate was vested in the

plaintiff him at the time from which he claims. Mortgagees may maintain this must have. action. (Rorson v. Eicke, 7 Ad. & E. 451.) 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 proved 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. Stacy, 9 Q. B. 1033), though it has been held that such a demise operates as an assignment (Beardman v. Wilson, L. R. 4 C. P. 57.)

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 (Towene 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. Prcedy, 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, i 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

Claim for use and occupation.

their said Act certain warehouses and premises in Gravel Lane, Aldgate, in the city of L., which belonged to the defendants.

The rela- the relation of landlord and tenant, as it may be implied; as where a vendee tion of enters after contract, and the sale goes off, and he remains in occupation landlord afterwards. (See Crouch v. Tregonning, L. R. 7 Ex. 88.) But the action and tenant will not lie where the defendant enters under an agreement for a lease, may be which, it turns out, the plaintiff cannot grant for want of title. (Rumimplied. ball v. Ilright, 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 liable to them for use and occupation. (Mc Mahon v. Burchell, 2 Phill. Rep. 127; Henderson v. Eason, 12 Q. B. 986.)

DEFENCES. The expiry 1. Erpiry of plaintiff's title.]—If before the occupation in reference to of plain- which the claim is made, the plaintiff's interest has expired, this is a tiff's title good defence, assuming that the defendant has paid his rent to the a defence. person claiming as against the plaintiff, as where the plaintiff's interest

Îas 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 bonâ fide claimant really entitled to the premises, under whom he has commenced a fresh tenancy. (Mount noy v. Collier, 22 L. J. Q. B. 124); or where he has paid the rent to a mortgagee of the plaintiff

under legal compulsion. (Ilickman v. Machin, 28 L. J. Ex. 310.) What 2. Surrender accepted.]-If the landlord has accepted another person amounts as tenant, and the latter has entered with the consent of the defendant, to such a this operates as a surrender (Nickells v. Atherstone, 10 Q. B. 944), eren surrender though the demise be by deed. (Darison v. Gent, 26 L. J. Ex. 122.) of a term as If the landlord has accepted the key of the premises, this operates as a constitutes surrender without the acceptance of another tenant. (Dodd v. Acklorn, 3 defence. 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. (Phoné 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. IIenderson, 46 L. J. Com. Law, 607, explaining Phené v. Popplenrll.)

În 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. Varrable, 11 M. & W.5; Campbell s. Wenlock, 4 F. & F. 716; Wilson v. Finch Hatton, 46 L. J. 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.)

Eviction.]-An eviction by the landlord of the tenant or his sub-tenant is a defence (Prentice v. Elliot, 5 M. & W.606; Burn v. Phelps, 1 Stark. 2. On the 5th March, 1868, the plaintiffs and the defendants Claim for entered into an agreement for the purchase by the plaintiffs use and

occupation.

94); and where the premises are let at an entire rent, eviction from part Eviction by the landlord, when the tenant quits the residue, is a good defence as to by the landsuch entire rent while the eviction continues. (Morrison v. Chadwick, 7 lord from C. B. 266; Upton v. Townend, 25 L. J. C. P. 44.) But a distinction must part of the be observed between expulsion from a part of the premises demised and premises a from something over which the tenant has only an easement, as in the defence. 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 r. Tulick, 6 C. & P. 66.)

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

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 What paypayment of rent to the lessor before notice of the assignment is a good ment is a defence. (4 Anne, c. 16, s. 10.) But payment to the lessor before the defence. 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. Thom80n, L. R. 3 C. P. 144.

The exception in s. 8 of 37 & 38 Vict. c. 54 to the right of a tenant of a Taxes mine to deduct one-half of the rate newly imposed by that Act and paid which by him from the rent payable to his lessor “unless he has specifically tenant may contracted to pay such rate in the event of the abolition of such exemp. deduct tion," does not take effect in favour of the lessor, unless the lease has in from the terms anticipated the imposition of this new liability and thrown it on rent. the tenant; and a covenant to pay the rent " free of and from all rates, taxes, tithe rent-charges, expenses, and deductions whatsoever, parliamentary, parochial, or of any other nature," will not deprive the tenant of his right to make the deduction given by the above section. (Duke of Deronshire v. The Barrow IIematite Steel Co., Limited, 46 L. J. 435, App., affirming decision of Court below.)

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.

Claim for use and occupation.

from the defendants of the said warehouses and premises in Gravel Lane for the sum of £8800.

3. By the said agreement it was (inter alia) agreed that the purchase should be completed and possession given to the plaintiffs' company on the 29th September, 1869, up to which time all outgoings were to be paid by the vendors, and from which time the company were to receive all rents and profits, and that the company should pay interest on the said sum of £8800 at certain rates therein agreed upon from the 29th September, 1867, until the completion of the said purchase.

4. The purchase of the said premises was not completed till the 13th March, 1876, although the plaintiffs were ready and anxious to have completed the said purchase at an earlier date.

5. The plaintiff's paid the said purchase-money by instalments on various dates prior to the said 13th March, 1876, and interest also on the same according to the said agreement of the 5th of March, 1868.

6. The defendants refused to give up possession of the said premises on the completion of the said purchase, and alleged that they were entitled to six months' notice from the plaintiffs prior to their being obliged to give up possession of the said warehouse and premises.

7. The plaintiffs contended that no such notice was requisite to entitle them to the possession of the said warehouse and premises, and therefore issued their warrant to the Sheriff of Middlesex to put them into possession of the same.

8. Possession was accordingly given to the plaintiffs on the 3rd of April, 1876.

9. The defendants have continued in the use and occupation of the said warehouse from the said 5th of March, 1868, until the 3rd of April, 1876, but have paid no rent for the same.

10. The plaintiffs claim rent of the defendants for their use and occupation of the said premises at the rate of £150 per annum as the fair value of the same from the said 29th September, 1869, until the said 3rd April, 1876. The plaintiffs claim £978 14s. for the above-mentioned use

and occupation by the defendants of the said premises.

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