GRANT and Another against GILL, 2 Whart. 42

The opinion of the Court was delivered by Sergeant, J. The first error assigned is, that the court below did not state that as the declaration was for use and occupation by the defendants below, from the 1st of July to the 1st of Oct. 1832, and the evidence of the plaintiff proved that there was no such occupation, therefore the plaintiff could not recover. In this point the defendants take it for granted that there was no occupation by them of the premises during the quarter in dispute.

But it is not necessary in order to render the defendants liable in assumpsit for use and occupation, that they should actually hold the possession for the whole time. If they have by their contracts and acts become the plaintiff’s tenants, and retained the control and command of the property under that contract, they are liable in this suit. In point of law they have used and occupied the property. In M‘Gunnagle v.

Thompson, (10 Serg. & Rawle, 251,) the defendant agreed to rent a house, from the 1st of April for one year, there being then in it a tenant till the 1st of May, with whom the defendant arranged for his leaving it on the 1st of May. The defendant never took possession at all, yet he was held liable in assumpsit for use and occupation. Mr. Justice Duncan says, it is not necessary in every case to prove the occupation by the defendant for the time claimed.

He might have occupied it; he was not prevented by the landlord; he did by the tenant occupy it till the 1st of May, and thereby entered on the possession in contemplation of law. His not occupying was his own fault; if occupation were necessary for the whole time, the tenant by stepping out a few days before the expiration of the term, would not be liable. So in the present case, Joseph and William Seaver rented of the plaintiff on the 1st of Jan. 1830, for one year, at $850, payable quarterly.

They took possession under the lease, and continued to hold during 1830, 1831, and part qf 1832, by which they entered upon a third year, commencing the 1st of January, 1832. On the 17th of March, they made an assignment tb the defendants, in trust for them and other creditors, (giving the defendants a preference,) of “ all their effects of whatsoever nature or kind, and wheresoever being,” which words carried the lease. The defendants accepted the assignment and paid the rent of the quarter ending 1st of June, 1832. This showed an occupation by them under the assignment, and made them tenants for the year.

The defendants could not afterwards terminate the lease when, they pleased; it could not be apportioned at their will. They took the place of the Seavers, and had the control and disposition of their interest, and might have occupied longer if they chose. They could not annul the contract for the running year at any time that suited them; they were bound till the end of the year if the plaintiff insisted on it; and in legal contemplation, they used and occupied the premises from the 1st of Julyto the 1st of October, even though they did not choose to keep possession all the time.

The second error is, that the Judge did not state, that as the assignment was a voluntary one, and no provision made to pay the rent, the assignees (the defendants below,) are not bound any longer than the assigned effects remained in the store. The liability of the defendants arises from their becoming the tenants of the premises, ■and is founded on privity of contract. It is immaterial whether they chose to keep the assigned effects in the store or not. The claim of the plaintiff is not as a creditor under the assignment, and does not'depend on' its terms.

Whether the defendants could charge the rent against the assigned estate, is a matter between them and the creditors. If it constituted a part of the necessary expenses of executing the trust, then it is provided for in the assignment. The third error is in stating that the fact of payment of one quarter’s rent by the defendants to the plaintiff, established the relation of landlord and tenant. The whole charge of the court on this point must be taken together, and it is in substance that the defendants became assignees, and as such, paid one quarter’s rent.

These two facts taken together, show, in the absence of any evidence to the contrary, that they did become tenants; if they did not, there was no tenant at all, for the Seavers had transferred all their right in the lease by the general words of the assignment, to the defendants, and could not prevent the defendants from claiming the right to the lease and possession if they chose to do so. Their payment of rent as assignees, amounts to an admission that they did take possession, and that they were the tenants, and the Seavers no longer so.

The evidence was in writing,- uncontroverted, and it was the duty of the court to decide upon its effect. The fourth error is in stating that the payment of rent by the assignees, made them personally liable to the plaintiffs. These assignees stand on the same footing as other assignees, by deed or act of the party, as contradistinguished from assignees in law, such as assignees under bankrupt or insolvent laws.

They are not sued to reach a fund held by them, but as persons who,'for their convenience or accommodation in the management of their trusts, have chosen to take the place of the former tenants; they are pexsonally responsible as such tenants, and not in any representative capacity. Judgment affirmed.