¶1The Court said that in an action for mere use and occupation, not founded on an express contract for an entire rent, eviction of part is not a bar to the whole action; because the plaintiff is entitled to recover damages for the actual use and occupation ; and if the defendant was deprived of the use for a certain part of the time, and afterwards resumed the occupation and use of the premises, the jury will consider that circumstance in estimating the damages.
3 D.C. 64
McGunnigle v. Blake
Decided December 15, 1826
Assumpsit, for use and occupation. Plea; eviction of part, in bar of the whole action. contended that if Mrs. Blake resumed the occupation, it was a waiv.er of the eviction, and restored the plaintiff to her right of action. 1 Esp. N. P. p. 2, 72; 4 Stark, on Ev. 1520, 1521; Smith v. Raleigh, 3 Camp. 513; Stokes v. Cooper, 3 Camp. 514; Fitchburg Company v. Melvin et al., 15 Mass. R.. 270.
Decided 1826-12-15