ment of the rent; for he proceeds against the parties with whom he made the agreenient, 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 2, 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 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 ques x Birch v. Wright, 1 T. R. 379. a Richards v. Holditch, H. 13 G. 2. cited in Lewis v. Waltis, Say R. 13. 1 Wils. 314. S. C. b Cooke, Clerk v. Loxley, 5 T. R. 4. recoguised in Brooksby v. Watts, 1 Marsh. 39. 6 Taunt. 333. S. C.. (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. An 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 B. did not receive his possession from C. nor anywise occupied under him, Lord Hardwicke held the action not maintainable by him. tion 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 dued. Where premises are let at an entire rent, an eviction from part, if the tenant thereupon gives up possession of the residue, is a complete defence to this action. A. lets lands to B., who underlets to C. and others; during these tenancies, A. gives notice to C., and the other undertenants to quit, and C. does quit, and the lands before occupied by him remain unoccupied for a year, and are then again let by B.; A. cannot recover against B. for the use and occupation of this land for the year. And semble, under these circumstances, an eviction might be pleaded to the whole demand'. 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 defendant held under a written contract, and therefore the plaintiff was bound to give it in evidence. Eldon, C. J. was of this opinion, observing, that this being a specific contract between plaintiff and defendant, 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. An action for use and occupation is maintainable without attornment upon the stat. 4 and 5 Ann. c. 16. s. 9, and 10. by the trustees of one whose title the tenant (defendant) had notice of before he paid over his rent to his original landlord; although the tenant had no notice of the legal title being in the plaintiffs on the record. i Lumley v. Hodgson, 16 East, 99. (4) R. v. the Inhabitants of St. Paul's, Bedford, 6 T. R. 452. S. P. CHAP. XLII. WAGER. I. Introduction-Of Legal Wagers-Form of Action. II. Of Illegal Wagers. I. Introduction--Of Legal Wagers-Form of 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, and 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. See also Bland v, Collett, 4 Camp. 157. (1) But as it was justly observed, by Lord Ellenborough, C. J., in Gilbert v. Sykes, 16 East, 150. 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 where two heirs apparent betted on the lives of their respective fathers, no objection was made to the subject of the wager; and it was further holden, that the circumstance of one of the fathers being dead at the time when the wager was made, but of which circumstance the parties were ignorant, did not affect the validity of the wager. In Murray v. Kelly, B. R. M. 25 Geo. 3. on a rule to shew cause why the defendant should not be discharged on filing common bail, on the ground that the action was on a wager, whether A. kept a military academy at such a place, or not; Lord Mansfield said, that as it was merely a wager on a private event, he saw no reason why it should not be considered as a legal debt; and the rule was discharged. In Jones v. Randall, Cowp. 37. a wager, on the event of an appeal to the House of Lords from the Court of Chancery, was holden good, the wager having been made between parties who could not in any degree bias the judgment of the house, and there not being any fraud or colour in the case. So in Good v. Elliott, 3 T. R. 693. where the subject of the wager was, whether one S. T. had or had not, before a certain day, bought a waggon, lately belonging to D. C., it was holden good, per three justices; but Buller, J. was of a different opinion, 1st, on the ground that two persons shall not be permitted, by means of a voluntary wager, to try any question upon the right or interest of a third person; and, 2dly, that all wagers, whether in the shape of a policy or not, between parties not having any interest, were prohibited by stat. 14 Geo. 3. c. 48. So in Hussey v. Crickitt, a wager of a rump and dozen, e Trin. T. 30 G. 3. B. R. d C. B. E. T. 52 G. 3. 3 Camp. N.P.C. 168. during the life of Bonaparte. The defendant paid the guinea a day for some years; but theu desisted. The action was brought to recover the arrears. The jury having found a verdict for defendant; on motion for a new trial, it was contended, in support of the verdict, that the wager was illegal, inasmuch as it had a tendency to create an interest in the plaintiff in the life of a foreign enemy, and which, in the case of invasion, might induce him to act contrary to his alle giance. The court, being of opinion that the justice of the case had been satisfied, refused to disturb the verdict; and Lord Ellenborough, C. J. expressed a strong opinion against the legality of the wager, as well on the ground before-mentioned, as also on the ground, that the party suffering under such a contract, might be induced to compass and encourage the horrid practice of assassination, in order to get rid of a life so burthensome to him, |