OWNERSHIP AND TENANCY EVIDENCE OF CONTRACT. 447 



for a term certain was granted by writing not under seal, which con- 

 tained an undertaking on behalf of the lessor and his assigns for quiet 

 enjoyment, it was held that his assignee might maintain assumpsit for 

 use and occupation ; for the lessor having granted for himself and his 

 assigns, the permission of any person who might become assignee of 

 the reversion during the lease was virtually included, so that the occu- 

 pation became in point of law permissive on the part of the assio-nee as 

 soon as his interest accrued (Sfanden v. Christmas). An action for 

 use and occupation is one of contract, and is founded on the relation of 

 landlord and tenant ; it therefore requires evidence of an occupation hy 

 the permission of, and under a contract tvith, the jjlaintijf; and though 

 the title on the part of the plaintiff and occupation by the defendant 

 may, in the absence of any other evidence, be a prima facie case from 

 which such a contract may be inferred, yet where the letting has been 

 by another party, the plaintiff will not be allowed to recover ; and 

 so where he fails to prove title or actual contract with himself {C%icrc?i- 

 ward v. Ford). And ivhere the letting has been hy another party , mere 

 notice by plaintiff (even though he has the title) to pay the rent to him 

 will not convert the occupation into an occupation by his permission 

 and under a contract with him ; for such notice, unless assented to by 

 the tenant, does not create a new contract, and can only enable the 

 party to bring ejectment to recover possession of the premises (/&.). 



And per PollocTc C. B. : " There are cases — Hidl v. Vaughan ; 

 Howard v. Shaw ; and Winterbofham v. Ingliam — which show that 

 ownership in the plaintiff and tenancy in the defendant are prima 

 facie evidence of such an implied contract as will sustain the action. 

 If indeed you show positively that there was no contract, it will be a 

 different question ; but if nothing else appears than the plaintifi"'s 

 ownership and the defendant's tenancy, there is a prima facie evidence 

 of an implied contract sufiicient to sustain the action. It was so laid 

 down in Hellyer y. Sillcox." And jyer Bramicell B. : '^ In every case 

 a contract must be shoivn, in order to enable the plaintiff to recover 

 {Gibson X. Kirk). Now here, instead of this being shown, the contrary 

 is shown ; for it is shown that the defendant did not occupy by per- 

 mission of the plaintiff, under any contract with the plaintiff, but by 

 the permission of Mrs. Foss, under a contract with her. It would not 

 only be contrary to all the principles of law and reason, but would lead 

 to gross injustice, if a tenant should be held liable to one party as 

 landlord on a contract made with another. It is not found as a fact 

 that Mrs. Foss let the premises as agent of the plaintiff. In Hellyer v. 

 Sitlco.T the Court of Queen's Bench thought that the occupation was 

 by permission of the plaintiff. In Standen v. Christmas there had not 



