Marseilles v. Kerr

Rogers, J., delivered the opinion of the court. That the actual occupation of the premises leased, is not necessary to support an action of assumpsit for use and occupation, is ruled in M‘Gunnagle v. Thornton, (10 S. & R. 251,) and in the other cases cited at the bar. This action depends either upon actual occupation, or upon an occupation'which the defendant might have had if he had not voluntarily abstained from it. Whitehead v. Clifford, (5 Taunt. 518.) But it is said no action is maintainable for use and occupation, on account of rent due, after acceptance of possession by the landlord, where there has been no actual possession or occupation. Coventry Sp Hughes, Dig. 1454 ; 5 Taunt. 518. And this is true, because from the time of unqualified acceptance of the possession, the contract is at an end. But is that the case here 1 The landlord accepts the key, takes possession, puts a bill on the house for rent, but at the same time .apprises his tenant that he still holds him liable for the rent. This was for the benefit of the tenant; and was not intended, nor can it have that effect, to put an end to the contract and discharge him from rent. Although the tenant did not actually occupy the premises, he was at liberty to do so; and is therefore liable for the action. Judgment affirmed.