1805. KING against FRASER. Espinasse, in support of the demurrer, relied upon the spe cial causes above assigned; and insisted that as the action of debt for use and occupation was substituted for the ancient method of declaring in debt for rent, it ought so far at least to follow the, former precedents as to describe the place where the premisses are situated, by reason whereof the rent accrued as in Rast. 152, 176. Lev. Entr. 52. 1 Lill. Entr. 185, and Clift's Entr. 237, and all other precedents in debt for rent; and, which was holden to be necessary in Buckland v. Otley (a), and in Grobham v. Thornborough (b); and accords with Gilb. on Debt, 404, &c. and 5 Com. Dig. 280, tit. Pleader, 2. W. 14; and with the rule in the same book, 23, tit. Pleader, C. 20, that a certain place ought to be alleged where every fact material and traversable was done. And this action being founded upon a contract for land, the locality of the demand ought to be certainly alleged. And, he said, that in Wilkins v. Wingate (c), though the Court held upon the authority of a late case in C. B. (d), that it was not necessary in the present form of action to set forth the demise, nor entry of the lessee, nor the time when the rent became due,-yet there the place [350] where the premisses were situated was stated in the declaration to be at Bath, in the county of Somerset, as appeared by one of the briefs in the cause, to which he referred. And this, he observed, was the most important fact to allege, as when the place was stated, the tenant must be presumed to know what the rent reserved was, and the times of payment: but here it is only stated that the defendant was indebted in London, not that the premisses were situated there. Wigley, contrà, said, That though this question might not arise in the last-mentioned case, yet it was there holden that debt for use and occupation would lie and if such general form of declaring be good in one respect, there is nothing in reason to distinguish that case from the present. The objection is reduced to a mere question of venue; and if it were necessary to lay the premisses in any particular parish, they must be taken to be in London where the venue is laid, and where the defendant is alleged to be indebted to the plaintiff. And as to the case in Hob. 82, there must be some mistake 1 (a) Cro. J 683. (b) Hob. 82. (c) 6 Term Rep. 62. ia 1805. KING against FRATER. in saying that the want of venue was holpen by the defendant's confessing the lease; for the venue was laid in London upon a lease of lands in the county of Southampton, not stating in what place; the objection therefore was to the want of description, and not of venue. There is no more reason here for requiring a place to be stated where the lands lie, than in debt for goods sold and delivered, to state the place where the contract was made, or the goods delivered; which is never done. And there is no more inconvenience in this than in any other case of general pleading; and that may always be obviated by calling for a bill of particulars. And he referred to the authorities collected in [351] Mr. Serj. Williams's note (2.) to Thursby v. Plant, 1 Saund. 233, to shew that this general mode of declaring is sufficient, Lord ELLENBOROUGH, C. J. When it was once esta blished, as in Stroud v. Rogers, and Wilkins v. Wingate, that debt for use and occupation would lie, it necessarily followed that the generality of the form of declaring for use and occupation in every respect might be adopted. And if this objection could prevail, it would apply as well to counts in debt for goods sold and delivered, and for work and labour; for the sale and delivery in the one case, and the work and labour in the other, must take place and be done in some given place; but the place not being essential to be stated in those cases, it has never been required: and there is no more reason in this case for saying that the place where the premisses lie is material to be laid. And as to the inconve niences to the tenant, which are pointed out by the causes of demurrer alleged, they may be gotten rid of, by calling for particulars of the plaintiff's demand: or if another ac tion for rent be brought, he may by proper averments in his plea shew that the plaintiff had before recovered the same rent in an action for use and occupation, of the same premisses. It is sufficient therefore that there is as much particularity in this as in other cases to which I have alluded. GROSE, J. I am sorry to see these experiments repeated in varying from the usual and approved method of pleading; but the question is, Whether any injustice or inconvenience arise from not stating the particular place where the premisses lie? And I am not aware of any which may not be obviated F 1 362 by the modern practice of obtaining the particulars of the plaintiff's plaintiff's demand, by which if the defendant be desirous of information he may be truly informed where the lands lie, for the use and occupation of which the plaintiff seeks to recover. And if the defendant be sued again for the same rent, he may shew it by pleading in the manner suggested by my Lord. Therefore, in analogy to the general mode of declaring in assumpsit for use and occupation, and as it tends to encourage brevity of pleading, and is not attended with any real inconvenience to the party sued, I am inclined to support the declaration. 1805. KING against FRASERS LAWRENCE, J. There is no more inconvenience in the mode of declaring in this than in other instances which have been mentioned; and whatever that may be, it may be removed by the defendant's calling for the particulars of the demand. It has been the common form of these counts to describe the place where the premisses lie: but it would be sometimes inconvenient to require it, as if it be doubtful in what parish they are situated, where they are on the confines of two parishes. In that case the plaintiff might be turned round upon a false description. The case has been argued by the defendant's counsel as if this were an action founded upon locality; but no authority has been cited to shew that an action for use and occupation is a local action. If a party have enjoyed the use and occupation of land in Kent, that is a good consideration for a promise in Middlesex, and he may afterwards be sued there. Lord Coke even says (a), that in debt, if a man declare on a lease for years (393) in one county of land in another county, he ought to bring his action where the lease was made, and not where the land lies; for the action is grounded on the contract. But perhaps that is not necessary; and it may be sufficient to bring the action in the county where the premisses lie (b). So here, where a promise is made in one county to pay rent for lands in another, the action may be brought in the former. It does "The writ of cove (a) Bulwer's case, 7 Rep. 2. So F. N. B. 145, E. nant ought to be brought where the covenant was made," &c. And vi. § Com. Dig. 295. But by Fitz. Abr. Covenant, 9, which cites T. 26 H. it ap pears that the lessor may bring covenant either in the county where the land lies, or in that where the lease was made. (a) Dy. 40, a, says, "If a man lease land in Middlesex, which land lay in Essex, rendering rent, an action of debt lies either in the one county or the other; because there is a continual privity between the lessor and lessee." VOL. VI. T not 1805. KING against FRAIZK. [ 354 ] not appear by the case in Hobart whether that were an action by the assignee of the reversion: if it were, it ought to have been brought in the county where the lands lie. Be fore the stat. 16 & 17 Car. 2, c. 8 (b), if the question could have been raised whether the premisses lie in the county where the action was brought, it might have been a material fact to allege where the premisses lie; but it cannot be necsssary now since that statute. Upon'the whole, therefore, the reason of the ancient precedents referred to does not ap ply to this case; there is no locality in this action; and no advantage lost to the defendant by the omission complained of; and after the cases of Stroud v. Rogers, and Wilkins v. Wingate, determining that debt for use and occupation generally will lie, there is no objection to this form of declaration. LE BLANC, J. I should not be disposed to make any great stretch in support of the action where there has been an omission of this sort, because it is always to be wished that precedents should be abided by. But when the Courts got rid of the necessity of pursuing the old remedy of debt for rent, all the strictness required in that form of action was also gotten rid of. In Stroud v. Rogers, the Court of Common Pleas held that a declaration in debt, not setting forth any demise of the premisses, nor for what term, or at what rent they were demised, nor how long the defendant had occupied them, nor when the sum claimed to be due for the use and occupation of them became due, nor for what space of time, was yet sufficient to enable the plaintiff to recover for use and occupation. The particular place indeed where the premisses lie was there mentioned; but I have no doubt that if that also had been omitted, the judg ment of the Court would have been the same. That case was holden to be an authority for the like determination by this Court in Wilkins v. Wingate. Then, after getting rid in this form of declaring of the strictness which had been observed in all other particulars in the old declaration in debt for rent, there is no reason for retaining the place where the premisses lie; especially as it may sometimes be (b) By that statute judgment shall not be arrested after verdict for want of a right venue, so that the cause were tried by a jury of the proper county where the action is laid. arsed used to turn the plaintiff round; and as every inconvenience suggested may be removed by having the particulars of the plaintiff's demand. Judgment for the Plaintiff. 1805. KING against FRASER. HOPKINS against LLOYD. [ 355 ] Wednesday, in the first venue from an OWEN moved on the usual affidavit for a rule nisi for Rule absolute changing the venue from London to Cardiganshire; instance for which rule was at first granted in the form prayed: but The changing the Court having been furnished by the Master with the following note, Lord Ellenborough, C.J. said that the practice appeared now to be sufficiently established for changing the venue from an English to a Welch county, to grant the rule absolute in the first instance. "Hughes v. Hughes, Hil. 40 Geo. 3. On a motion to change the venue from London to Denbigh, the question was, Whether there should be a rule to shew cause, or whether the rule should be absolute in the first instance? Lord Kenyon, C. J. said that it had been so frequently changed from London to Wales, that he thought it might be absolute in the first instance; and it was so taken." Welch county, adavit: on the usual |