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.

A covenant in the usual form, that "the lessee paying the rent and observing the covenants on his part to be observed, should peaceably hold and enjoy the said premises," is an independent covenant, and nonpayment of rent and non-observance of the lessee's covenant is no answer to a breach by the lessor. Dawson v. Dyer, 5 B. & Ad. 584; Edge v. Boileau, ante, p. 708.

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. 474. 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. 303, "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. 699. 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; Mostyn v. W. Mostyn Coal and Iron Co., 1 C. P. D. 145; 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 has 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. As to damages for not delivering up fixtures at the end of the term, see Watson v. Lane, ante, p. 702.

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.

The landlord may also sue for a breach of the implied give up possession of the premises at the end of the term.

agreement to Vide supra.

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 et seq. 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 authorised 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. 718) is sufficient to put the plaintiff on proof of the whole statement of claim.

Contra, Castleman v. Hicks, 2 M.

See Jones v. Williams, 4 M. & W. 375.
& Rob. 422, cor. Coleridge, J., post, p. 718.

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 non-suit, 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. Swinfen v. 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 offer 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. 718.

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 administrators, shall thenceforward pay to the landlord double the rent or sum which he should otherwise have paid, to be levied, sued for, and recovered at the same times and in the same manner as the single rent or sum, before the giving of such notice, could be levied, &c.; and such double rent or sum shall continue to be paid during all the time such tenants shall continue in possession. The action has usually been in the form of debt.

The notice mentioned in this statute need not be in writing, at least where the tenant holds under an oral demise; Timmins v. Rowlinson, 3 Burr. 1603; but it must give a fixed time for quitting; thus, a notice to quit as soon as the tenant can get another situation" does not render him liable on this statute, though he has got another situation. Farrance v. Elkington, 2 Camp. 591. The statute only applies to those cases in which the tenant has the power of determining his tenancy by a notice, and actually gives a valid notice sufficient to determine it. Johnstone v. Hudlestone, 4 B. & C. 922. It was held by Best, C. J., that this action did not lie against a weekly tenant. Sullivan v. Bishop, 2 C. & P. 359. This decision was, however, against his own view, and in deference to the decision of Ld. Ellenborough in Lloyd v. Rosbee, ante, p. 711, which was, however, a claim for double value, and, it seems, having regard to the difference in the two statutes, that the decision in Sullivan v. Bishop, supra, is incorrect. See Bullen on Distress, 116, n. This action is not in the nature of a penalty.

ACTION ON BOND.

The statement of claim either states only the penal part of the bond, as in the case of common money bonds, or sets out also the special conditions and alleges breaches. The allegation of breaches is obligatory on the plaintiff by stat. 8 & 9 Will. 3, c. 11, s. 8, either in the statement or reply, by way of assignment, which is traversable, or, in certain cases, by way of suggestion, which is not traversable, but must be proved in order to obtain an assessment of damages. Neither the J. Acts, 1873, 1875, nor the Rules, 1883, materially affect the procedure on bonds. Where breaches are not assigned in the statement of claim, the defendant must now set out the condition as part of his defence, if he intends to plead performance. Where issue is joined on the alleged breaches, the proof will of course depend on the allegations traversed. Where breaches are suggested, then the evidence will be as on a writ of inquiry, except that the truth of the breaches, as well as the damages, will then have to be inquired into, and thereupon the defendant may controvert the breaches or any of them; but he cannot show excuse of performance, for that might have been pleaded by him at first. See Canterbury, Archbishop of v. Robertson, 1 Cr. & M. 690; Webb v. James, 8 M. & W. 645.

Where the breaches have been suggested after judgment for the plaintiff, it will be necessary to give some evidence that the bond produced, and in which the conditions are contained, is the same as that on which judgment has been obtained; for this purpose it will be sufficient if the solicitor for the plaintiff testify that the bond produced is the instrument delivered to him to bring the action on, and that he knows of no other of the same date, and the bond need not be strictly proved. Hodgkinson v. Marsden, Peake, Ev. 5th ed. 287; 2 Camp. 122. Where the defendant on oyer set out the condition, which was for performance of covenants in an indenture of lease, and pleaded a plea of judgment recovered, on which there was judgment for the plaintiff; on the execution of the writ of inquiry, Ld. Kenyon ruled that it was not necessary to prove the execution of the lease, as the defendant was estopped from denying it. Collins v. Rybot, 1 Esp. 157. If the defendant let judgment go by default, and the plaintiff thereupon make his suggestion of breaches in which he sets out