West v. Cartledge — 5 Hill & Den. 488

Majority

p. 488

West and another vs. Cartledge and another.

Headnote

In an action for rent reserved by deed, the lessor should declare specially up on the demise ; he .cannot recover under the general indebitatus count for use and'occupation. »

Where the lessor in such case counts specially, he need not make profert of the deed; it is enough to set out the demise according, to its legal effect, omitting all allusion to the seal. Per Cowen, J.

The rule is the same whether the action be against the original lessee or his assignee. Per Cowen, J.

The lessor may recover under a count upon an insimul computassent, though the evidence be of an accounting concerning rent secured by deed.

Debt, tried at the New-York circuit, in July, 1842, before Kent, C. Judge. The plaintiffs demised certain premises in the city of New-York to one Gaylor, who executed an instrument under seal reciting the demise and promising to pay the rent. Gaylor assigned to the defendants, and this action was brought to recover for the use and occupation. The declaration contained the general indebitatus count for use and occupation, together with a count on an insimul computassent; and there was evidence at the trial tending to show an accounting ' between the parties and a promise by the defendants to pay the amount found due. The judge decided that, as the payment of the rent was secured by an instrument under seal, the plaintiffs were not entitled to recover on the indebitatus count; that they should have declared specially on the demise. He held, however, that the plaintiffs were entitled to a verdict under the insimul computassent count, and instructed the jury to find accordingly, if they believed the evidence sustained the allegation of an accounting and promise to pay. The defendants’ counsel

p. 489

excepted. Other questions were raised at the trial which need not be noticed. The jury rendered a verdict in favor of the plaintiffs; and the defendants now moved for a new trial on a bill of exceptions.

E. Paine & C. O’Conor, for the defendants.

J. H. Magher & E. Sandford, for the plaintiffs. .

There is scarcely any thing in this case calling for remark, except the point made as to the form of the declaration. No doubt debt was a proper action. The sum due being certain, debt was concurrent with covenant. The payment being, however, secured by a covenant under the seal of the lessee, no room was left for treating the contract as a simple one, express or implied, to pay for use and occupation. Had the action been directly against the lessee, this would have been very obvious. The action for use and occupation is given by 1 R. S. 739, § 26, 2d ed., which excepts the case of rent reserved by deed. The assignee comes into the place of the lessee, in respect to liabilities as well as rights. It might not indeed have been necessary to set forth or make proferí of the deed. The general necessity for this, in an action upon the deed, is dispensed with as between landlord and lessee in debt for rent; and I suppose, by parity, it would be where the action is against the assignee. This however does not excuse the necessity of setting out the demise according to its legal effect; though you may omit all allusion to the seal, as in 2 Chit. Pl. 430, 1, Am. ed. of 1840. The whole subject is there treated in the notes.

The judge being correct, therefore, in holding that the evidence of the demise was inapplicable to the counts for use and occupation, was he right in deciding that the plaintiffs were entitled to recover under the count upon the insimul computassent ? The cases collected in 1 Leigh’s N. P., 100, 1, are very full to the point that he was; and it is no objection to the evidence of an accounting, that the rent was secured by specialty. (Mora

p. 490

via v. Levy, 2 T. R. 483, note (a); Buller, J in Foster v. Allanson, id. 482, 3.)

Various exceptions were taken at the trial to which we have not particularly alluded. It is enough to say we felt quite clear from the time they were mentioned that they could not he sustained.

New trial denied.