poffeffion, he foon afterwards paid the refidue of the price, upon which inducement the Plaintiff permitted him to enter and occupy the premifes. In the month of October, the Plaintiff not having made out a good title, the Defendant declared that he refcinded the contract; he accordingly quitted the poffeffion of the premises, and brought an action for money had and received, under which he received back from the Plaintiff the whole purchase money, and the expences of investigating the title. The Plaintiff then commenced this action to recover rent for the fpace of time during which the Defendant had occupied the premises. Beft Serjt. and Selwyn, for the Defendant, contended that there was no contract either exprefs or implied in this cafe; that the ftatute which gives the action for use and occupation, requires that fome contract of demife fhould fubfift, and that the contract of fale, which was proved, by fufficiently accounting for the poffeffion of the premises, difaffirmed the existence of any other implied contract. They urged that in the cafe of Hearne v. Tomlins, Peake N. P. Cafes 192. Lord Kenyon C. J. had decided that on a purchafe being defeated by the want of a title, nothing could be recovered by the vendor in this form of action. Efpinaffe, contrà, obferved that Lord Kenyon limited that pofition to the cafe where the occupation of the house "was not beneficial." Mansfield C. J. at firft inclined, to think that the action might be fupported; for that if a man had contracted for the purchase of an estate, of the annual value of many thousand pounds, and had, through the imprudence of the vendor, been permitted to take poffeffion, which he might poffibly retain for feveral years, pending a difcuffion of the validity of the title in a court of equity, it would be ftrange if the purchafer could hold the poffeffion and receive the profits during all that time, without paying any confideration for for it to the vendor. But upon the ground that during all the Defendant's occupation of the premises the Plaintiff had been in poffeffion of the purchase-money, of which he had made, or might have made interest, the Chief Juftice directed a nonfuit, with liberty for the Plaintiff to move that it might be fet afide, and a verdict entered for the Plaintiff with 87. 15. 24d. damages, being the amount of the difference, by which the jury found the reasonable value of the houfe during the Defendant's occupation, to exceed the intereft of the purchase-money, being computed for the time during which the money was in the Defendant's poffeffion. Accordingly Shepherd Serjt. on this day moved for a rule nifi, contending, that where a purchaser is let into poffeffion in purfuance of a contract, if that contract is refcinded, and the parties are remitted to their original fituation, an undertaking to pay rent for the time of the poffeffion arifes by implication of law: he endeavoured to distinguish this from the cafe of Hearne v. Tomlins, because in that cafe the Plaintiff had fuftained a lofs by having taken poffeffion. MANSFIELD C. J. I doubted extremely whether in any view of the cafe the Plaintiff could recover for the occupation of the house; if no money had been paid, perhaps it might be a different question: but if a man pays part of his money, and is fo unwife as to take poffeffion without a title, is it not just that the one party should take back his money, and the other take back his houfe? It is impoffible to make the rules of law depend on the balance of lofs or gain in each tranfaction. The poffeffion of a house is always beneficial; for it protects the occupier from the inclemency of the weather. A contract cannot arife by implication of law under circumstances, L 2 1809. KIRTLAND ย. POUNSETT. 1809. KIRTLAND V. POUNSETT. cumstances, the occurrence of which neither of the parties ever had in their contemplation. The Court unanimously held that the nonfuit was right, and Refused the Rule. Nov. 9. Buig 36.2. If, under an is let into poffef- rent. For there is no demife, exprefs or implied. HEGAN V. JOHNSON. REPLEVIN. Because the Plaintiff for three-quarters of a year, ending on the 29th September 1808, had held the house in which, &c. as tenant thereof to George Rofs, by virtue of a certain demife to the Plaintiff theretofore made, at a certain yearly rent of 401. payable quarterly, and because 30l. rent for the said space of three quarters of a year, ending on the said 29th day of September, was in arrear, the Defendant made cognizance as bailiff of Rofs. Upon the trial of this caufe at the Croydon Summer Affizes 1809, before Lord Ellenborough C. J., it appeared that the Plaintiff held the premises under an agreement, whereby Rofs agreed " that he would by indenture demife to the Plaintiff the house then in his occupation, for the term of 14 years from the 25th day of December then last past, (determinable as thereinafter mentioned,) at the yearly rent of 40/., payable quarterly, clear of all taxes, (except land-tax); but if the Plaintiff fhould pay to Rofs the fum of 401. before the expiration of the first quarter, which should be at Lady-day then next, in that cafe the rent fhould be reduced to the rate of 331. per annum, payable quarterly." The Plaintiff had been in poffeffion three quarters of a year. The jury, under his Lordship's direction, who thought this inftru ment ment was no demise, and did not support the cognizance, found a verdict for the Plaintiff. Beft Serjt. now moved to fet afide this verdict, and enter a verdict for the Defendant. The Plaintiff was in poffeffion, and fince he was not a trefpaffer, he was a tenant, and there was a demife; the word demife is rendered neceffary in the cognizance by the ftatute 11 G. 2. c. 19. f. 22. Although this agreement would not have proved a demife, yet it was evidence of the terms on which the demife fubfifted. Under every agreement of this nature, the occupier becomes tenant from year to year, and cannot be ejected without notice to quit: it would therefore be highly mischievous if the landlord could not diftrain. The Court afked, whether he could diftrain at all under fuch an agreement? The occupier certainly did not become tenant from year to year at the beginning of the first month or first three months: for clearly at any time before the end of the first year, if a lease had been tendered to the occupier, and he had refused to execute it, the leffor might have ejected him without any notice to quit, and if he had executed it, he would thenceforth have held, not under the fuppofed demife, but under the leafe. When a person is fo foolish as to enter upon the premises under an agreement for a lease, without a ftipulation that in cafe no leafe is executed, he fhall hold, for one year certain, if he does not execute, the landlord may turn him out without notice. The effect is, that the leffor cannot diftrain for the rent: he must bring his action. Rule refufed. 1809. HEGAN v. JOHNSON. L3 1809. Nov. 13. If a party en titled under a contract to receive a profit from another, by PRINGLE V. TAYLOR. As SSUMPSIT. The Plaintiff affigned a breach by the Defendant, in not fupplying the Plaintiff with fmall-coal for the use of his engine, according to the terms of the agreement hereinafter stated: at the trial of this caufe before Wood B. at the Northumberland aflizes, 1808, the jury found a verdict for the Plaintiff, with which he was to 401. 155. damages, fubject to be changed for a nonfuit, according as the opinion of the Court should be, upon the following cafe: his own act fo confounds the measure of that receive, that it can be no longer afcertained, he vacates his whole claim. A. agreed to find fufficient coals for B.'s en gine, to draw water from 4.'s mine, and B's little coal, as they then find. B. funk to a lower feam, in draining which, he drain ed the other two feams, but con fumed for his engine more The Plaintiff was poffeffed of a feam of coal, called the little coal of Beadnell, in the county of Northumber. land, and of a steam engine, which was originally used by him for drawing off water therefrom; the Defendant was poffeffed of a feam of coal contiguous to, and nearly upon a level with the Plaintiff's, but had no steam engine for drawing the water therefrom. It was neces fary to draw the water from thefe collieries before they could be worked, and the Defendant, before the making of the agreement, was not able to work his coal, except at fuch times when the engine of the Plaintiff had been worked long enough to draw the water from the Defend ant's as well as the Plaintiff's coal. Upon the 22d of De coal than before, cember 1806 the following agreement was written and figned Held that A. was by the Defendant, in the shape of a letter addreffed to the no longer bound Plaintiff: "I hereby agree to give you small coals for your "engine, to draw your water from your little coal and my coal, to furnish any coal, because B. had deftroyed the measure of fufficiency. as they now ftand, on condition you keep your engine where fhe now ftands, and a person to attend her; you defraying every other expence that neceffarily attends "fuch. The above conditions to commence from this "day to the 12th November 1807." The Plaintiff ac ceded |