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debt for the rent, in cases where the tenant had attorned; for that transferred the privity of contract. By the stat. 4 Ann. c. 16. s. 9. attornment is no longer necessary. As to stat. 32 H. 8. c. 37, and what persons are within this statute, see post, under tit. Distress, s. IV.
The action must be brought against the person who took the profits when the rent became in arreary, or against their executors or administrators. If A. make a lease for life , or a gift in tail, reserving a rent, that is a rent-service within this statute. The act is remedial y, and extends to the executors of all tenants for life. If lessee for years assign over the term reserving a rent, he may maintain debt for such rent arrear, although he has not any reversion 2. By stat. 4 Geo. 2. c. 28. s. 1. “ If tenants for life, lives, or years (75), or other persons coming into possession of any lands, &c. under or by collusion with such tenants, shall wilfully (76) hold over after the determination of their term (77), and after demand made (78), and notice in writing (79) given, for deli
t See Allen v. Bryan, 5 B. & C. 512. y Hool v. Bell, Ld. Raym. 172. u 1 Inst. 162. b.
z Newcombe v. Harvey, Carth. 161. X Ib.
(75) “I am aware that a tenant for half a year, or a smaller portion of a year, may, for some purposes, be considered and denominated a tenant for years. But this is a penal statute, and to be construed strictly. I cannot, therefore, include a tenant from week to week in the description of tenants for life, lives, or years; and I do not remember any instance of a tenant for a less time than a year being held within the statute.” Per Ld. Ellenborough, C. J., Lloyd v. Rosbee, 2 Campb. 453.
(76) A tenant who holds over, under a fair claim of right, will not be considered as wilfully holding over within the meaning of this statute; though it may be decided eventually, that he had no right. Wright v. Smith, 5 Esp. N. P. C. 203.
(77) Where the demise is for a certain time, e. g. for one year and no longer, a notice to quit is not necessary at the end of the year to put an end to the tenancy. 8 East, 361.
(78) In Wilkinson v. Colley, 5 Burr. 2694. the court considering this as a remedial law in favour of landlords, the penalty being given to the party grieved, held, that a notice to quit in writing included a demand. On the authority of this case it was holden*, by three judges, that where a woman, tenant from year to year, had received a written notice to quit, and before the expiration of the year married, it was not necessary for the landlord to make a demand on the vering the possession thereof, by their landlord or lessors, or persons entitled to the reversion or remainder of such lands, &c. or their agents (80); such persons so holding over shall, for the time they shall so hold over, pay to the persons kept out of possession, their executors, administrators, or assigns, at the rate of double the yearly value of the lands, &c. for so long time as the same are detained, to be recovered by action of debt, whereunto the defendant shall be obliged to give special bail, against the recovery of which penalty there shail not be any relief in equity.” One tenant in common may maintain an action on this statute 4, without his companion, for double the yearly value of his moiety. An action on this statute may be brought after a recovery in ejectment. The defendant b, after having held of the plaintiff a farm for fourteen years, received a regular notice to quit on the 12th of May, 1806, and the possession was then demanded of him ; but he refused to deliver it up, and held over till the 7th of February, 1807; whereupon the plaintiff brought his ejectment against the defendant and recovered possession ; and afterwards brought this action of debt upon the stat. 4 Geo. 2.
* Lake v. nmth, 1 Bos. & Pul. N. R. 174.
a Cutting v. Derby, 2 Bl. Rep. 1077.
b Soulsby v. Neving, 9 East, 310.
husband, in order to entitle him to maintain an action against the husband, on this statute, for wilfully holding over. Chambre, J. differed from the other judges, conceiving, that a demand ought to be made, upon the party against whom a penal action is brought. N. in a case of this kind the husband may be sued alone, and it is not necessary to join the wife for conformity, the husband being in possession of the estate at the time when possession is to be delivered, and consequently the offence being committed by him; for the offence, which consists in not complying with the demand to deliver possession at the time, when it ought to be complied with, is not complete until the day-for delivering possession arrives. The demand need not be made either on or before the expiration of the term, but may be made afterwards; e. g. six weeks afterwards, the landlord not having in the mean time done any act to recognize the defendant as continuing to be his tenant: but the landlord will be entitled to double the yearly value only from the time of giving notice to quit and making demand. Cobb v. Stokes, 8 East, 358.
(79) Notwithstanding the order in which the words stand in this stat., from which it should seem that the notice ought to be given after the determination of the term, yet the notice may be given before the expiration of the term. Cutting v. Derby, 2 BÍ. R. 1075.
(80) A receiver appointed under an order of the Court of Chancery, is an agent within the meaning of this statute. Wilkinson v. Colley, 5 Burr. 2694.
c. 28. for double the yearly value of the premises, in the interval between the expiration of the notice to quit, (which was the day of the demise in the ejectment,) and the time of recovering the possession under the ejectment. The declaration was in the usual form, alleging the demise to and holding by the defendant: the demand of possession and notice in writing to deliver up the premises at the end of the term, on the 12th of May, 1806: the subsequent refusal of the defendant, and his wilfully holding over for three quarters of a year after the 12th of May; and the annual value of the premises. It was objected, on the part of the defendant, that the plaintiff having before recovered the premises by the ejectment, and thereby treated the defendant as a trespasser, the action of debt upon the statute, in which, as it was said, the defendant was proceeded against as tenant, could not be maintained; but, per Lord Ellenborough, C. J. There is no incongruity in the landlord's bringing this action for the double value after a recovery in ejectment. The legislature considered, that, in many cases, the single value might not be a compensation to the landlord for having been kept out of possession by the misconduct of the tenant, and therefore they gave him double the value. It has no reference to any antecedent remedy which the landlord had to recover possession by ejectment, but is cumulative. The two actions are brought diverso intuitu; the ejectment is in order to get possession of the premises wrongfully withheld; the action of debt for the double value is in order to indemnify the landlord for the wrong. The other judges concurred with the C. J.
In the following case the plaintiff declared in the first count for double the yearly value c; and in the second, for use and occupation. The defendant pleaded as to the demand in the first count, and as to parcel of the demand in the second count, nil debet ; and as to the residue, (being the amount of the single rent,) the defendant pleaded a tender, and paid the money into court, which the plaintiff took out of court, but proceeded to trial. It was contended, on the part of the defendant, that there should be a nonsuit, because the plea of tender of rent covered the whole period, for which the double value was claimed in the first count; and the acceptance of the tender, which adopted the terms and character of it, must be taken to be an admission by the landlord, that the defendant held the premises mentioned in the second count, as tenant to him during the whole period, for which the rent was claimed, and that he received the tender, as of rent for the same premises; and consequently it operated as a waver of the penalty. But the court held, that plaintiff was not estopped from taking the money as part of the larger sum claimed, and that going on with the suit shewed that he did not mean to take it in satisfaction of the lesser sum.
c Ryal v. Rich, 10 East, 48.
Stat. 11 G. 2. c. 19. 8. 18.—By stat. 11 Geo. 2. c. 19. s. 18. If any tenant (81) shall give notice (82) of his intention to quit the premises holden by him, at a time mentioned in such notice, (83) and shall not deliver up the possession thereof accordingly, then such tenant, his executors, or administrators, shall, thenceforward, pay to the landlord double the rent which he should otherwise have paid, to be levied (84), sued for, and recovered, at the same times and in the same manner as the single rent could; and such double rent shall continue to be paid during all the time such tenant shall continue in possession (85).” A tenant, who, after having given notice to quit, holds over for a year, and then pays double rent, according to the foregoing statute, may d quit at the end of such year without giving a fresh notice. N. By stat. 3 & 4 Will. 4. c. 42. s. 3. “ All actions for penalties, damages, or sums of money, given to the party grieved, by any statute now in force, or hereafter to be in force, shall be commenced and sued one year after the end of this present session, or within two years after the cause of such actions or suits. The 4th section contains the usual provision in favour of infants,
d Booth v. Macfarlane, 1 B. & Ad. 904.
(81) A tenant for a year under a parol demise, is a tenant within this statute. Timmins v. Rawlison, 3 Burr. 1603.
(82) It is not necessary that this notice should be in writing. Timmins v. Rawlison, 3 Burr. 1603.
(83) There must be some fixed time mentioned. A notice that the tenant will quit as soon as he can possibly get another situation will not enable the landlord to recover under this statute, although he can prove that the tenant had got another situation. Farrance v. Elkington, 2 Campb. 591. (84) That is, by distress.-N. This remedy was pursued in Tim
Rawlison. (85) It seems, that there would be an incongruity in applying the remedy given by this statute for double rent after the remedy by ejectment, which treats the person in possession as a trespasser. Per Ld. Ellenborough, C. J. 9 East, 314.
femes covert, non compotes mentis, and persons beyond sea, and provides also for the absence of defendant beyond sea.
See further provisions of the legislature for enabling landlords more speedily to recover possession of lands and tenements unlawfully held over by tenants, in stat. 1 Geo. 4. c. 87. and which is not to be construed to prejudice or affect any right of action or remedy which landlords already possessed, s. 7. This statute extends to Ireland, s. 8.
Declaration.—Debt for rent, by the lessor against the lessee, may be brought either where the land lies, or the deed was made e; but debt by the grantee of the reversion against lessee', or by lessor against the assignee of the term , or by grantee of the reversion against assignee of the term ", is maintainable on privity of estate only, consequently is local, and must be brought in that county where the lands are. If the venue is laid in the wrong county, advantage may be taken of it on demurreri. It is a general rule, that, wherever an action is founded on a deed, the deed must be declared upon. But the action of debt, for rent arrear, forms an exception to this rule; for in this case it is not necessary to declare
upon the deedk. Debt against an executor for rent incurred during the life of the testator, must be in the detinet only! But for the rent incurred after the death of the lessee, the action may be brought either in the debet and detinet m, or in the detinet only "; for the lessor has his election (86). Debt byo or against P an executor or administrator, for rent arrear, partly in time of testator or intestate, and partly in time of executor or administrator, is well brought in the detinet only. If, in such case, the plaintiff in the same declaration charge the defendant in the detinet for the rent arrear in time of testator or intestate and in the
e Patterson v. Scott, Str. 776.
1 1 Rol. Abr. 603. (S.) pl. 9. f Bord v. Cudmore, Cro. Car. 183. m Rich v. Frank, Cro. Jac. 238. 1
Trahearne v. Cleabrooke, W. Jones, Bulstr. 22, S. C. Mawle v. Cacyffyr,
43. Thrale v Cornwall, 1 Wils. 165. Cro. Jac. 549. g Per Cur. in Patterson v. Scott, Str. n Royston v. Cordyre, Aleyn, 42. 776.
o Smith v. Norfolk, Cro. Car. 225. h See Barker v. Damer, Carth. 183. p Aylmer v. Hide, M. 13 G. 2. B. R. i 2 Lev. 80. 1 Wils. 165.
Mss. k Adm. per Cur. in Atty v. Parish, q Salter v. Codbold, 3 Lev. 74.
1 Bos. and Pul. N. R. 109.
(86) The only inconvenience of suing in the detinet, is to the plaintiff himself, who waves his right to demand satisfaction out of the estate of the defendant, and contents himself with what the testator's estate will afford. Aleyn, 43.