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to take possession without a title, justice required that the one party should take back his money, and the other his house.

An action for use and occupation may be maintained against a tenant from year to year upou an agreement by him to pay rent during the tenancy, notwithstanding his bankruptcy, and the occupation of his assignees during part of the time for which the rent accrued (2).

Declaration-In consideration that the defendants, on the 26th November, 1801, had become and were tenants of a messuage under a yearly rent of 7., the defendants promised to pay the same during the continuance of the tenancy, with an averment that the defendants continued tenants from the time of making the promise hitherto, that the defendants did not, during the continuance of the tenancy, pay the rent; that on the 29th September, 1803, half a year's rent was in arrear.-2d Count. Indebitatus assumpsit for use and occupation.-3d. Count. Quantum meruit.Plea, That the defendants were traders, and committed an act of bankruptcy on the 2d of April, 1803; that a commission issued on the 5th of May following; that au assignment was executed on the 21st May of the interest of the defendants in the messuage to A. and B., who became and were on the last-mentioned day, and thence until the rent became due, continued to be possessed of and occupied the messuage; on special demurrer it was holden, that as it had been determined in Auriol v. Mills', that a bankrupt lessee, though out of possession, was still liable upon his covenant to pay; so here the defendant was liable on his agreement to pay the rents; that there was not any distinction in this respect, between an agreement and a covenant, which is an agreement under seal, except as to the form of the remedy upon it; that the case of Auriol v. Mills, to which this was perfectly analogous, did not turn on any particular effect of a covenant under seal, but on its being the personal agree

q Boot v. Wilson, 8 East, 311. r 4 T. R. 94.

s But see stat. 49 Geo. 3. c. 121. s. 19. ante, p. 226.

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(2) But debt does not lie against a bankrupt on the reddendum of a lease, for rent accruing after the commissioners' assignment; the lessor's assent to such assignment being virtually included in the act of parliament authorising the assignment of the bankrupt's estate. Wadham v. Marlowe, Mich. 25 G. 3. B. R. 8 East,

314. n.

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ment of the parties; and although it was objected, that if the action was holden to lie, the consequence would be, that there must be an apportionment of the rent, yet the court observed, that the landlord had nothing to do in this case with the question of apportionment of the rent; for he pro-. ceeds against the parties with whom he made the agreement, which has been broken; the court, therefore, said nothing of his right to recover against the assignees.

Bringing an ejectment will not be a bar to an action for use and occupation for rent due before the day of the demise laid in the declaration in ejectment; but rent due subsequent to that day cannot be recovered in an action for use and occupation".

The defendant, in this action, will not be allowed to impeach the title of the plaintiff, by whose permission he entered upon and occupied the tenement demised. Hence a plea of nil habuit in tenementis, cannot be pleaded; and this rule holds even where the declaration does not state the tenement demised to belong to the plaintiff, provided it is stated, that defendant occupied by permission of the plaintiff. Upon the same principle it has been holden, that nil

t Birch v. Wright, 1 T. R. 378.
u Per Buller J. S. C. 1 T. R. 388.
x Richards v. Holditch, (3) H. 13
Geo. 2. cited in Lewis v. Wallis,
Say, R, 13.

y Richards v. Holditch, H 13 Geo, 9. cited in Lewis v. Wallis, Say. R. 13. 1 Wils. 314. S. C.

An

(3) The case of Richards v. Holditch was this:-Error to reverse a judgment in action on the case upon several promises, in Stepney Court, because the plaintiff declared, that in consideration he permitted the defendant to enjoy several houses, without shewing what title he had. Yelv. 227, 8. Glasse's case, and 3 Lev, 193. Aylet v. Williams were cited. E contra it was said, that permission to enjoy without shewing any title, was a sufficient consideration. 1 Leon. 43. Cro. Jac. 598. 1 Lev. 304.3 Lev. 150. objection was made to the plea, that this action being founded on a collateral promise, and not on a contract for the rent, nil habuit in tenementis, as was pleaded in this case, was not a good plea, and of that opinion was the whole court; for if any one enjoys a benefit at his request, and by permission of another, that is a sufficient consideration for an assumpsit. N. Chapple cited a case as ruled by Lord Hardwicke, where A., without title, gave possession of a house to B.: C. the owner, brought assumpsit for the use and enjoyment; but because 5. did not receive his possession from C. nor anywise occupied under him, Lord Hardwicke held the action not maintainable by him.

habuit in tenementis cannot be given in evidence in this action.

In an action for use and occupation of glebe lands, it appeared, that the former incumbent had let the lands in question to the defendant, who had continued tenant to the present incumbent, the plaintiff, and had paid him half a year's rent for the same. This action being brought for some arrears of rent, the defendant offered to give evidence of the plaintiff's having been simoniacally presented, of which, as it was stated, the defendant was ignorant, when he paid the former rent; but Lord Kenyon C. J. refused to receive this evidence, being of opinion that the case fell within the common rule, that a tenant should not be permitted to impeach the title of his landlord in an action for use and occupation. There was a verdict accordingly for the plaintiff. The court of B. R., on motion for a new trial, concurred in opinion with the C. J.

Neither will a defendant, who has obtained possession under the plaintiff, be permitted to shew that the plaintiff's title has expired, unless he solemnly renounced the plaintiff's title at the time, and commenced a fresh holding under another person. Proof of payment of rent to a third person claiming title is not sufficient, without a formal renunciation of the plaintiff's title. The judge will not permit the amount of the property-tax to be deducted at Nisi Prius from the

rent due.

In an action for use and occupation; if it appear that the premises were let to the defendant for the purposes of prostitution, the action cannot be sustained, the contract being contra bonos mores.

Assumpsit for use and occupation; on examination of a witness who proved the occupation by defendant, it appeared that there had been an agreement in writing, but not stamped. It was contended by plaintiff's counsel, that the agreement, not having been stamped, was not binding on the parties, and that therefore the plaintiff might wave this, and go into evidence generally for use and occupation. It was insisted for defendant, that it appeared that plaintiff held under a written contract, and therefore he was bound to give it in evidence. Eldon C. J. was of this opinion, observing, that this being a specific contract between plaintiff and de

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fendant, the plaintiff is bound to shew what that contract was; it may contain clauses which may prevent plaintiff from recovering; others for the benefit of defendant, which he had a right to have produced; but the contract not being stamped, it could not be given in evidence (4), therefore the plaintiff must be nonsuited.

(4) R. v. the Inhabitants of St. Paul's, Bedford, 6 T. R. 452. S. P.

CHAP. XLI.

WAGER.

I. Introduction Of Legal Wagers-Form of Action. II. Of Illegal Wagers.

I. Introduction Of Legal Wagers-Form of
Action.

Introduction.-Ir has frequently been lamented, that idle and impertinent wagers between persons not interested in the subject or event were ever considered as valid contracts. Grave and learned judges have thought that it would have been more beneficial for the public, if it had been originally determined, that an action would not lie for the enforcing the payment of any wager. Actions, however, on wagers relating to a variety of subjects, having been entertained under certain restrictions, and the legislature not having as yet interposed to prohibit them entirely, it may be proper to state in what cases an action will lie for enforcing the payment of a wager, aud in what such action cannot be maintained.

Of Legal Wagers.-In Andrews v. Herne, where a wager was laid, that Charles Stuart would be king of England within twelve months next following, he then being in exile, it was holden good. (1) So in the Earl of March v. Pigot,

a 1 Lev. 33.

b 5 Burr 2802. But see the observation of Heath J. on this case, in 3

Camp. N. P. C. 172. viz. that it was a case not to be cited, being of very doubtful authority.

(1) But as it was justly observed, by Lord Ellenborough C. J., iu Gilbert v. Sykes, B. R. Trin. T. 52 G. 3. the illegality of this wager, on the ground of its being against public policy, does not appear to have been brought under the consideration of the court. In Gilbert v. Sykes, the defendant, in the year 1802, in consideration of one hundred guineas, agreed to pay the plaintiff a guinea a day

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