Pott v. Lesher

By the court. We feel no inclination to turn the plaintiff round to another suit, if justice could be administered in the present action, agreeably to the established rules of law; we however feel ourselves bound to adhere to the settled boundaries of actions. We should in an action for use and occupation, under the evidence adduced, try an ejectment, the defendant holding adverse to the plaintiff’s title, and not under his licence. The suit is brought for use and occupation under the defendant’s permission; and the allegata andprobata must agree. Independent of the authorities cited, why should these matters be laid in the declaration, if it was not necessary that they should be proved ? It was formerly held, Hutt. 24, Cro. El. 242, that case would not lie for rent. But the law is now settled to be otherwise where there is an express promise. 3 Mod. 73, 239. Cro. Car. 414. 1 Rev. 204. 2 Show. 135. Referred to in 51 Pa., 265. Cited in 68 Pa., 60, in support of the proposition that an express contract to pay rent may be proved under a count for use and occupation. Cited in 72 Pa., 154, to show that the action of assumpsit is founded on a contract express or implied, and will not lie where the relation of landlord and tenant does not exist. Messrs. Clymer and M. Biddle, pro. quer. Messrs. Read and Spayd, pro def. To aid the interests of landlords, the statute of n Geo. 2, c. 19, was enacted in England, which allowed a degree of evidence, not admissible before, in suits similar to the present. Such actions have also been brought in Pennsylvania. But a promise either express or implied, must be shewn, even since the statute, and proof given that the defendant came into possession by the permission of the plaintiff; or at least such strong circumstances must be shewn, as would preclude the idea of an adversary claim. The decision in the case of Birch v. Wright, went on the ground, that the defendant was originally tenant from year to year to Mr. Bowes; and that under the operations of the indenture and fine levied by him and lady Strathmore his wife, the plaintiff became the rightful landlord until the time of the ejectment brought. And Buller, J. lays it down, (1 Term Rep. 387,) that the action for use and occupation is founded on contract; and unless there were a contract either express or implied, the action could not be maintained. Here the proof to support this species of action, is materially defective. But the plaintiff is not without remedy. If he is equitably entitled under the agreement of 10th June 1784, and has substantially performed his part of the covenants, he can support ejectment for the undivided third part of the premises; and succeeding herein, he may bring trespass for the mesne profits. But in this family dispute, we recommend a reference to * neighbours. This not the plaintiff suffered a nonsuit. being agreed to, r;,;gyg