lessor will not operate as a suspension of the rent a. A plea in bar, that the lessor pulled down a summer-house, whereby the lessee was deprived of the use thereof, without saying that he was expelled or put out of the same, was held insufficient; being a mere trespass, but no eviction b. A plea of eviction by a stranger must shew that the stranger had a good title to evict . If a lessor grants more land than he is entitled to, it operates as an eviction as to that part to which he has no title ". Where premises are let at an entire rent, an eviction from part, if the tenant thereupon give up possession of the residue, is a complete defence to an action for use and occupation e. But if the tenant, after the eviction, continue in possession of the residue, he is liable upon a quantum meruit 1. Where A. took a farm under an agreement from B. that A. should have the exclusive right of sporting over the manor in which it was situate, and should also occupy certain glebe land within the parish; A. entered into possession, but did not sign the agreement, and it appeared that B. had no power of conferring the right of sporting, nor could he procure the glebe land: in an action for the use and occupation of the farm, held that evidence was admissible to shew the annual value of the land without such right, which might be ascertained by the jury, independently of the amount of the rent reserved by the agreement 8. Where lands had been let to one, who underlets to charged. Slade v. Thompson, 1 Roll. 198. Co. Litt. 292. b. a Id. Vouchell v. Dancastell, Moor, 891. B. N. P. 177. Where our books speak of an apportionment, in cases where the lessor enters on the lessee in part, they are to be understood where the lessor enters lawfully, as upon a surrender, forfeiture, or such like, where the rent is lawfully extinct in part. Co Litt. 148. b. It is settled law at this day that the tenant is discharged from the payment of the whole rent till he can be restored to the whole possession. Bac. Ab. "Rent." M. 1. Hunt . Cope, Cowp. 242. Jordan v. Twells, Cas. temp. Hardw. 171. 1 Saund. 204. d Tomlinson v. Day, 5 Moore, 558. 2 B. & B. 680, infra. But see Neale v. Mackenzie, post, 726. Smith v. Raleigh, 3 Camp. 513. Ellenborough. f Stokes v. Cooper, 3 Camp. 514. n. Dallas. 8 Tomlinson v. Day, 5 Moore, 558. 2 B. & B. 680, supra. In reference to this case Lord Denman said, in Neale v. Mackenzie, 1 M. & W. 764, post, 726, that if it was an eviction of an exclusive right of sporting, it was by title para others, and the latter received a notice to quit from the original landlord, in consequence of which one of them did so, and the lands occupied by him remained unlet for a year, and were then let by the original tenant; it was held that the original landlord could not recover in use and occupation for the rents of the unoccupied premises, as the circumstances amounted to an eviction, and might be pleaded to the whole demand ". re If a lessor demises by parol more land than he is enti tled to, at an entire rent, and enters upon that por tion of the land only which the lessor has a right to let, he is not liable to a dis tress; for the rent Where by parol a dwelling-house and premises were demised for a year, and the lessee accepted the lease, and by virtue of the demise entered upon the premises, but before and at the time of the demise, eight acres included in it had been demised to a third party, in whose possession they were, so that the lessee could not and did not enter upon them, the Court of Exchequer the lessee held that the lessee was in under the lease, he taking an interesse termini in the eight acres; and that the want of possession was not equivalent to an eviction by the tortious act of the landlord, but was quasi an eviction by an elder title, and that therefore while out of the possession of the eight acres, the rent was not suspended but was apportioned; and might be distrained for b. But on a writ of error this decision was versed in the court of Exchequer Chamber. Lord Denman, C. J., in delivering the judgment of the court, observed, that as the defendant had taken no interest as to the eight acres, and as he was not bound by any estoppel, (this not being the case of a demise by indenture,) the distress was not justifiable as to the whole or any portion of the rent; no demise of the eight acres had ever taken place, and consequently no right to any rent in respect thereof had ever come into existence. There was no case where an entire rent reserved had been held to be apportionable, in which the tenant had not been at some period subject to the entire rent by virtue of the demise. The right of apportionment in this case was not founded on any eviction or other matter occurring subsequent to the demise, but on an original defect in the demise itself, by which the entire rent was cannot be appor tioned. Plea of the statute of limitations. reserved. The impediment to the defendant to take possession was not analogous to an eviction; for no interest in the eight acres passed to him, the demise being wholly void a. All actions of debt for the arrears of rent not reserved by deed must be brought within six years, and actions for rent due on specialty must be brought within twenty years after the cause of action accrued c. The statute of limitations must in all cases be specially pleaded, and the plea must conclude with a verification d. SECTION VII. A tenant holding over after tion of his term, to be liable to double value. DEBT FOR DOUBLE VALUE. BY 4 Geo. II. c. 28. s. 1, "if any tenant for life or years or other person who shall come into possession of any lands, tenements, the expira- or hereditaments by, under, from or in collusion with such tenant, shall wilfully hold over any lands, &c., after the determination of such term and after demand made and notice in writing given for delivering possession thereof, by the landlord or lessor or person entitled to the reversion or remainder of such lands, &c., or his or their agent, such person so holding over shall, for the time he 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 in any court of record by action of debt, whereunto the defendant shall be obliged to give special bail, and against the recovery of which penalty there shall be no relief in equity." This is a remedial law, as the penalty is to be given to the party aggrieved, therefore it is to be construed liberally; accordingly it has been held, that though the words are “after demand made, and notice in writing given," the notice in writing is of itself a sufficient demand; and that a receiver appointed Neale v. Mackenzie, 1 Mees. & Wels. 747. See Bac. Ab. "Leases," (N.) Dove v. Wilcott, Cro. Eliz. 160. Com. Dig. "Estates," (G. 13.) b 21 Jac. I. c. 16. See "Limitations, statute of," post. © 3 & 4 W. IV. c. 42. s. 3, post. d 1 Saund. 283. under an order of the Court of Chancery is "an agent lawfully authorized" within the meaning of the statute". Lord Ellenborough, however, considered that, as it was a penal statute, it ought to be construed strictly, and he therefore held that it did not extend to a weekly tenant, and consequently that an action of debt for double value would not lie against him for holding over after notice to quit ; and a tenant who holds over under a fair claim of right will not be considered as wilfully holding over within the meaning of the statute, and therefore will not be liable to pay double value though it eventually turns out that he had no right. But though the landlord has recovered the premises in ejectment, he may afterwards maintain an action for double value during the time that the tenant held over after the expiration of notice to quit; for it is cumulative and has no reference to any antecedent remedy which the landlord had to recover possession. The two actions were brought diverso intuitu, the one to recover possession wrongfully withheld, the other to indemnify the landlord for the wrong d The statute does not ex tend to weekly tenants, or to tenants holding over under a fair claim of right. rent. Acceptance of a single rent is a waiver of the double value. Acceptance of single But where a landlord declared in debt, first, for the double value; secondly, for use and occupation; the tenant pleaded nil debet to the first, and a tender of the single rent before the action brought to the second count, and paid the money into court, which the plaintiff took out before trial, and still proceeded; it was contended that the plaintiff ought to be nonsuited upon the ground that such acceptance of the single rent was a waiver of his right to proceed for the double value. But the court held otherwise, observing that the plaintiff's going on with the action after taking the single rent out of court, was evidence to shew that he did not mean to waive his claim for the double value, but to make it pro tanto; and they seemed to think that though the single rent were paid into * Wikinson v. Colley, 5 Burr. 2694. Lloyd v. Rosbee, 2 Camp. 453. See Sullivan v. Bishop, 2 C. & P. 359. It seems to be doubtful whether quarterly holdings come within this statute. Wilkinson v. Hall, If notice be given to a woman and she after wards mar ries, it is not necessary to give notice to her husband. court on the second count, yet, if the plaintiff had not accepted it, but had recovered on the first count, the defendant would have been entitled to have the money so paid in deducted out of the larger sum recovered a. If a landlord give notice to quit or pay a certain rent, and the tenant holds over, the former may maintain use and occupation, and shall recover the rent specified in the notice b. Notice to quit, under this act, may be previous to the expiration of the lease ". In debt for double the yearly value, the plaintiff, after stating a demise to the defendant's wife, and her subsequent intermarriage with the defendant, alleged in the first count a notice to quit, and demand of possession delivered to the defendant and his wife; and in the second count alleged a notice to quit, and demand of possession delivered to the wife previous to her intermarriage with the defendant; held, that to support the second count, the husband need not be joined for conformity, and that to sustain the action it was not necessary to have given a notice to the husband subsequent to the intermarriage d. be Though a demise be for a certain time, a demand of possession and notice in writing, &c., are necessary to entitle the landlord to double rent or value; but such demand may made above six weeks afterwards, if the landlord have done no act in the mean time to acknowledge the continuation of the tenancy; and if the tenant hold over, the landlord will be entitled to double value from the time of such demand; but if the rent be reserved quarterly, and the demand be made in the middle of a quarter, the landlord cannot recover single rent for the antecedent fraction of such quarter e. Tenants in common cannot sue jointly, under this statute, for double value, where there has been no joint demise. They must sever if the tenant held the premises by a separate demise from each, for persons cannot join in an action unless they have a |