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action arose on the subsequent subsidence of the surface, owing to the working of the mines prior to the conveyance to C. Where the covenant was of seisin in fee, and the premises were, in fact, copyhold of inheritance, the jury ought to find as damage the difference in value between lands of each tenure. Gray v. Briscoe, Noy, 142.

On a covenant for quiet enjoyment generally, it will not support the breach to show a tortious disturbance by a stranger; for it is only a cove nant against persons having lawful title. Dudley v. Folliott, 3 T. R. 587; 2 Wms. Saund. 178, (8); unless the covenant is against disturbance by a particular person, when it is sufficient to show any disturbance by him, whether by lawful title or otherwise. Nash v. Palmer, 5 M. & S. 374. So, where the covenant is against disturbance by the lessor, his heirs or executors, it is sufficient to show any disturbance by him or them. Forte v. Fine, 2 Roll. Rep. 21; 1 Wms. Saund. 181 b, (g). Thus, where the lessor lets a seam of coal with covenant for enjoyment without molestation, &c., and he afterwards works minerals in the stratum above the coal, so as to damage the coal mine, an action lies for breach of covenant; though a mere nuisance by the lessor on his own land is not necessarily a breach of such a covenant. Shaw v. Stenton, 2 H. & N. 858; 27 L. J., Ex. 253. See further Spoor v. Green, ante, p. 657. Where the covenant is for quiet enjoyment against A. and any other person by his means, title, or procurement, it is sufficient proof of the breach to show an entry by A.'s wife, in whose name A. purchased jointly with his own. Butler v. Swinerton, Palm. 339. So, in the case of a covenant for quiet enjoyment against all claiming by, from, or under him, a claim of dower by his wife is a breach of the covenant. Godb. 333; Palm. 340. So, the appointee of A., by virtue of a power in the making of which A. concurred, is a person claiming under him. Hurd v. Fletcher, 1 Doug. 43 ; Carpenter v. Parker, 3 C. B., N. S. 206; 27 L. J., C. P. 78. So, where A., seised in fee, settled his estate upon himself for life, remainder to his first and other sons in tail, and made a lease, and covenanted for quiet enjoyment without interruption of the lessor, his heirs or assigns, or any other person claiming any estate, right, or interest, by, from, or under him, the eldest son was held to be a person claiming under the lessor. Evans v. Vaughan, 4 B. & C. 261. Where the covenant is that the defendant has not done, permitted, or suffered any act, &c., the assenting to an act which the covenantor could not prevent is not a breach. Hobson v. Middleton, 6 B. & C. 295; Thackeray v. Wood, 6 B. & S. 766: 34 L. J., Q. B. 226. But, where a mortgagee who has entered into a similar covenant, was party to a deed whereby the mortgagor created an incumbrance on the mortgaged land, this is a breach of the covenant; see Clifford v. Hoare, L. R., 9 C. P. 362. A covenant for quiet enjoyment acquitted of all grants, rents," &c., is broken by the existence of a quit rent, incident to the tenure, and due to the lord of the manor, though none was in arrear at the time of the conveyance. Hammond v. Hill, Comyn, 180. A covenant against interruption by the vendor, or his act or defaults, extends to arrears of quit rent due while the vendor was in possession and unpaid by him, though it may have become due before he held the estate. Howes v. Brushfield, 3 East. 491. Entry on a lessee and distress for land-tax, due from lessor before the demise, is not a breach of covenant for quiet enjoyment, without disturbance by the lessor, or any one claiming by, from, and under him; for that is not a claim under him, but a claim against him. Stanley v. Hayes, 3 Q. B. 105. But semb. the plaintiff might have paid the tax and sued for money paid. Vide ante, p. 533. The entry of the party, claiming lawful title, is not less a breach of covenant because the covenantee, who sues, may have instigated him to enforce the claim. Young v. Raincock, 7 C. B. 310. Merely forbidding the plaintiff's tenant to pay his rent, is not a breach of the covenant for quiet enjoyment.

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Breach of Covenant for Title.

659

Witchcot v. Nine, 1 Browl. 81. A legal proceeding interfering not with the possession, but with a particular mode of enjoyment of land, as its use as a beershop, is not a breach of the covenant. Dennett v. Atherton, L. R., 7 Q. B. 316, Ex. Ch. ; see Porter v. Drew, 5 C'. P. D. 143.

A covenant not to use lands for certain specified trades, does not imply a warranty that it may be used for all other trades. S. C.

In a conveyance of land from A. to B., A. covenanted with B. for title and quiet enjoyment, notwithstanding any act or thing done, or suffered by him, or any of his ancestors or predecessors in title: by a subsequent decree in Chancery, which bound B., although not a party to the suit, the land was declared subject to rights of common; this decree was in the absence of any actual disturbance of B. in his possession held no breach of the covenant for quiet enjoyment; nor, in the absence of evidence of a grant of common, by A.'s predecessors in title, was it a breach of the covenant for title. Howard v. Maitland, 11 Q. B. D. 695, C. A.

For an instance of a qualified covenant for title, where a house is granted with appurtenances, as usually enjoyed therewith, see Thackeray v. Wood, ante, p. 658. As to breach of quiet enjoyment of stalls in a theatre, see Leader v. Moody, L. R., 20 Eq. 145. As to the effect of a want of title, which is disclosed by the plaintiff's deed of purchase, see Hunt v. White, 37 L. J., Ch. 326.

The defendant granted the plaintiff a lease he had no power to grant. The plaintiff obtained a fresh lease, from the person having good title, and in an action against the defendant, on the covenant for quiet enjoyment, he was held entitled to recover the difference in the expenses and value of the void and of the valid lease. Lock v. Furze, 19 C. B., N. S. 96; 34 L. J., C. P. 201; L. R., 1 C. P. 441, Ex. Ch. So, where defendant demised premises to the plaintiff, and covenanted that the plaintiff should occupy them, through the term, without any interruption, from the defendant, or any person claiming under him; an action of trespass was brought against the plaintiff by C., who claimed under the defendant, and the plaintiff gave notice of this action to the defendant, but the defendant took no notice thereof; the plaintiff then defended the action, and a verdict was recovered against him; it was held, that the plaintiff was entitled to recover against the defendant the amount of the verdict and costs, he was so compelled to pay, together with his cost of defence, and compensation for the loss of the land, and the value of a conservatory he had erected on the land. Rolph v. Crouch, L. R., 3 Ex. 44. See also Williams v. Burrell, 1 C. B. 402, and Godwin v. Francis, L. R., 5 C. P. 295, cited ante, p. 443. Where there had been no eviction, only such damages were recoverable as the plaintiff had sustained at the date of the writ. Child v. Stenning, 11 Ch. D. 82, C. A. In such case, however, the damages would now, under O. xxxvi, r. 58, ante, p. 284, "be assessed down to the time of assessment."

Where a breach is not assigned in the words of the covenant merely, but goes on to particularize the sort of breach, that alone must be proved; Harris v. Mantle, 3 T. R. 307; unless the judge shall authorize an amendment on the trial by striking out words of needless particularity, ante, p. 650. Where the breach of a covenant for enjoyment specifies an entry and expulsion by the defendant, it is not enough to prove a refusal, by the defendant, to let the plaintiff take possession. Hawkes v. Orton, 5 Ad. & E. 367. But where the first part of the breach, contains the gist of the action, the plaintiff need not prove superfluous matter of aggravation. Deffell v. Brocklebank, 4 Price, 36.

The plaintiff may assign a breach, on the implied covenant for quiet enjoyment contained in the word demise; Com. Dig. Cov. (A. 4); Shep. Touch. 160; or let; Mostyr v. W. Mostyn Coal & Iron Co., 1 C. P. D. 145;

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in a lease under seal these words imply a power to lease, and hence to support the action, it is not necessary that the lessee should be actually evicted; 1 Wms. Saund. 322 a, (2); but the implied covenant ceases with the estate out of which the lease is granted. Adams v. Gibney, 6 Bing. 656; see Penfold v. Abbott, 32 L. J., Q. B. 67; and is restrained by an express covenant for quiet enjoyment. Line v. Stephenson, 4 N. C. 678, Ex. Ch., 5, N. C. 183; Stannard v. Forbes, 6 Ad. & E. 572; Dennett v, Atherton, L. R., 7 Q. B. 316, Ex. Ch. A warranty, of the demise by the lessor, is not an implied covenant, but an express one, and extends to the whole term granted. Williams v. Burrell, 1 C. B. 402.

In a demise by parol there is an implied contract for quiet enjoyment, but not for good title. Bandy v. Cartwright, 8 Exch. 913; 22 L. J., Ex. 285 and xl. note; Hall v. City of London Brewery Co., 2 B. & S. 737 ; 31 L. J., Q. B. 257. See Cross v. Warter, 5 W. N. 1873, p. 137, E. T., Q. B. But, in an agreement for a lease there is no contract for quiet enjoyment; Brashier v. Jackson, 6 M. & W. 549; it is, however, an implied condition that the lessor has a good title to let for the proposed term, and he is liable for a breach of this condition. Stranks v. St. John, L. R., 2 C. P. 376.

Breach of covenant to yield up possession of premises at end of term.] A covenant to this effect is usually to be found in leases; but even in the absence of such a covenant," when a lease is expired the tenant's responsibility is not at an end, for if the premises are in possession of an undertenant, the landlord may refuse to accept the possession, and hold the original lessee liable, for the lessor is entitled to receive the absolute possession at the end of the term." Harding v. Crethorn, 1 Esp. 57, per Ld. Kenyon; approved in Christy v. Tancred, 7 M. & W. 127, 130, per Parke, B. The same rule applies in the case of a tenancy under a parol agreement for a lease. Henderson v. Squire, L. R., 4 Q. B. 170. The landlord is entitled to recover all the loss he has sustained, by not being put in possession of the entire premises, at the end of the term; he is entitled to a sum equivalent to the rent he has lost, and to the costs of an ejectment against an under-tenant, who was wrongfully held over. S. C. So, the lessor may recover for damages occasioned by having to compromise an action, by a person (to whom he had let in reversion), for not giving possession, together with the costs of such action; and his acceptance of rent for the time held over is no answer. Bramley v. Chesterden, 2 C. B., N. S. 592; 27 L. J., C. P. 23.

ACTION FOR DOUBLE VALUE OF LAND DEMISED.

By statute 4 Geo. 2, c. 28, s. 1, in case any tenant for life, lives, or years, or other person who shall come into possession of any lands, tenements, or hereditaments, by, from, or under, or by 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 the possession thereof by his landlord or lessor, or the person to whom the remainder or the reversion of such lands, &c., shall belong, or his agent thereunto lawfully authorized, such person so holding over shall, for the time he shall so hold over or keep the person entitled out of possession of the said lands, &c., pay to the person so kept out of possession, his executors, administrators, or assigns, at the rate of double the yearly value of the lands, &c., so detained, for so long a time as the same are detained, to be recovered by action of debt in one of the Queen's Courts of Record.

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Proof of Demise.-Determination of Term, &c.

661 The landlord may also sue for a breach of the implied agreement to give up possession of the premises at the end of the term. Vide ante, p. 660.

Proof of the demise.] Tenants in common could not sue jointly in this action, where there was no joint demise by them. Wilkinson v. Hall, 1 N. C. 713. Nor could husband and wife sue jointly on a parol demise, by the husband alone, of land whereof he is seised in right of his wife, but the action must be brought by the husband alone. Harcourt v. Wyman, 3 Exch. 817. But such misjoinder is not now material, vide ante, pp. 86, 87. A., the lessor of defendant, required delivery of the premises at Lady-day, when the lease ended, and then made a lease in reversion to B.; defendant held over, and did not recognize B. as landlord: held that A., and not B., was the proper person to sue. Blatchford v. Cole, 5 C. B., N. S. 514; 28 L. J., C. P. 140. A weekly tenant is not liable to the action. Lloyd v. Rosbee, 2 Camp. 453.

Proof of the determination of the term, and of the demand.] In general, the determination of the term, will be proved by evidence of the service of a notice to quit upon the defendant; and if such notice be proved, it will not be necessary to show a demand; for the notice includes a demand. Wilkinson v. Colley, 5 Burr. 2694. A notice to quit, containing a threat of requiring double rent on refusal, is sufficient. S. C. As to proof of the notice or demand, see ante, pp. 8, 14, and cases cited post, Action for recovery of land,-By landlord. The statute requires it to be in writing. Where the defendant has held over after the determination of a term certain, a demand in writing of the possession must be proved; but it need not appear that the demand was made immediately upon the expiration of the tenancy. Cobb v. Stokes, 8 East, 361; though the plaintiff will only be entitled to the double value from the time of the demand made. And where the rent is reserved quarterly, and the demand is made in the middle of the quarter after the expiration of the tenancy, the plaintiff cannot recover the single rent for the antecedent fraction of the quarter. S. C. Where the notice was served upon a tenant, a feme sole, who married before the expiration of the year, it was held that the landlord might maintain debt against the husband, without making a demand of the possession from him; and that in such action it was not necessary to join the wife for conformity. Lake v. Smith, 1 N. R. 174. A person appointed by the Court of Chancery to receive the rents and profits of the estate, is a sufficient agent within the statute to make the demand in his own name. Wilkinson v. Colley, supra. Where a trustee joined with cestui que trust in a mortgage to the plaintiff, and all parties joined in appointing G. to be the agent and attorney of the cestui que trust to demand and collect rent, to give notice to quit, &c., and to do everything that the cestui que trust could have done before the mortgage, it was held that G. was authorized to demand within the statute. Poole v. Warren, 8 Ad. & E. 582.

Value.] In estimating the value, only the land and its real easements and appurtenances can be included. Thus, where the owner of a mill let part of it to the defendant, with the use of the revolving shaft of a steamengine, which passed through the part demised, at an entire rent, the value of the power was excluded. Robinson v. Learoyd, 7 M. & W. 48. Generally speaking, the rent, if a rack-rent, will represent the value; but the unwillingness of the tenant to quit may sometimes be evidence of a greater value.

Defence.

It has been usual in this action to traverse the specific allegations in the statement of claim; but as the action is in the nature of a penal one, it has been suggested that the plea of Not guilty, by statute (post, p. 667), is sufficient to put the plaintiff on proof of the whole statement of claim. See Jones v. Williams, 4 M. & W. 375. Contra, Castleman v. Hicks, 2 M. & Rob. 422, cor. Coleridge, J., post, p. 668.

The defendant may show that the plaintiff has waived the notice to quit or demand of possession, and, where the plaintiff has accepted rent due from the defendant after the expiration of notice to quit, it is a question for the jury whether such rent was received in part satisfaction of the double value, or as a waiver of it. Ryall v. Rich, 10 East, 52. Such waiver need not be specially pleaded. Rawlinson v. Marriott, 16 L. T., N. S. 207, Mellor, J. Where the landlord declared in debt, first for the double value, and secondly for use and occupation, and the tenant pleaded nil debet to the first count, and a tender of the single rent, before action brought, to the second, and paid the money into court, which the plaintiff took out of court, and proceeded; it was held that this was no waiver of the plaintiff's right to the double value, so as to be ground of nonsuit; but that it was a case to go to the jury; and that the plaintiff's going on with the action after taking the single rent out of court was evidence to show that he did not mean to waive his claim for the double value, but to take the single rent pro tanto only. Ryall v. Rich, supra. A recovery of possession in an action, is no waiver of the landlord's right to the double value, for the time between the expiration of the notice to quit, and the time of recovering possession. Soulsby v. Neving, 9 East, 310. A tenant who holds over, under a fair claim of right, will not be considered as wilfully holding over within the statute, though it may appear eventually that he had no right. Wright v. Smith, 5 Esp. 203. A tenant who, during proceedings as to the validity of a devise, made by the lessor, held over, after a notice to quit from the devisee to whom he had in the first instance attorned and paid rent, was held not to have made himself liable to a claim for double value, after the validity of the devise had been established. Swinfenv. Bacon, 6 H. & N. 184, 846; 30 L. J., Ex. 33, 368. Where the action is against co-tenants, a statement by one, on receipt of notice to quit, that "he has nothing to do with the land," is not evidence in his favour to show that his holding was not wilful; but if one offers to give up the land, and the other alone holds out, it is doubtful whether the action will lie against both. Hirst v. Horn, 6 M. & W. 393.

Statute of Limitations.] This double value being in the nature of a penalty can only be recovered within two years of the time the cause of action accrued. 3 & 4 Will. 4, c. 42, s. 3, post, p. 667.

ACTION FOR DOUBLE RENT.

By stat. 11 Geo. 2, c. 19, s. 18, if any tenant shall give notice of his intention to quit the premises holden by him, at a time mentioned in such notice, and shall not accordingly deliver up the possession thereof at the time in such notice contained, then such tenant, his executors, or adminis

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