
    Ann McGunnigle v. Betty H. Blake.
    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.
    Assumpsit, for use and occupation.
    Plea; eviction of part, in bar of the whole action.
    
      Mr. Wallach, for the plaintiff,
    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.
    
      Mr. Morfit, for the defendant.
   The 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.  