title to the apportioned rent without the consent of the tenant, and intimated a very strong opinion that the purchaser of part would have the same remedies for the apportioned rent as the original landlord would have had for the entire rent. The Court, after hearing Sugden, stated that they thought it necessary to confer with the Vice-Chancellor before they heard the case further argued. In last term it was again argued by Preston for the plaintiff. It may be admitted that, consistently with the authorities, the rent could not be apportioned by a vendor and purchaser so as to bind the tenant. The purchaser, however, has the same rights and remedies against the lessee in respect of the apportioned rent as he would have had in case no rent had been mentioned in the conveyance from the vendor, and the annual rent of 40%. had been apportioned by a jury. It is clear that a rent may be apportioned; Co. 1. Inst. 148.; 2 Inst. 504. and Bacon's Abr. tit. Rent, M. are authorities in point. The passage in 2 Inst. 504. is full and explicit: "If a man make a lease for years, reserving a rent, if he grant away part of the reversion, the rent shall be apportioned by the common law, and albeit the grantee of part demand or claim more in his action of debt or avowry than is due, yet shall he recover so much as the jury shall find upon a just apportionment to be due." And for this, four reasons are given." 1st, For, that it is a rent-service, and not a bare contract, and rent services were apportionable at the common law. 2d, It is incident to the reversion, which is severable et accessorium sequitur naturam sui principalis. VOL. V. 3 M 1822. BLISS against COLLINS. 1822. BLISS against COLLINS. principalis. 3d, The rent being a rent-service is severable by recovery of part in an action of waste, or upon surrender in part. 4th, It is a general case, and specially in case of wills, which many times are void for a third part." (a) [Abbott C. J. The authorities go to establish this position, that there are two modes of apportioning rent, one by granting the reversion of part of the land out of which the rent issues; the other by granting part of the rent to one person and part to another. In the present case, each portion of the rent issues out of the whole land. Bayley J. Suppose the grantee to distrain for 40l. rent, the avowry must state that the tenant held it at an annual rent of 40%.] It may be admitted, that the avowry must so state the title to the rent; but the reversioner may recover a less sum than 40%., though he states the tenancy to be at 407. a-year. However, it is conceded, that unless this case assumes that the rent has been duly and legally apportioned, there is great difficulty in arguing the plaintiff's case on grounds which are tenable. It is incumbent on the defendant to shew that his remedies at law are different, in consequence of the rent being apportioned by the lessor, than they would have been if the rent had been apportioned by a jury. The right of re-entry for non-payment of rent is gone, because the condition was entire. The grantee has a remedy for the rent by distress, or by bringing an action of debt or covenant. These propositions are established by the passage already cited from 2 Inst. 504. The same doctrine is to be found in Bacon's Abr. tit. Rent, M: "If A., possessed of a term for 20 years, leases it for 10 years, (a) 13 Co. 57. reserving reserving 30%. rent, and afterwards A. devises 201. of the rent to three of his sons, equally to be divided; this is a good devise, and each of the sons shall have an action of debt for his third part, though the reversion to which the rent was originally incident remains entire." Now, in the case put, the lessor divides the rent by his own act only, and he might divide it into as many parts as he pleases, obliging the tenant to pay each separately, and rendering him liable to different remedies. This power, of apportioning the rent by the lessor, will be beneficial to the tenant, by preventing the necessity of an action of debt for the purpose of having the apportionment made by the jury. And it is observed by Lord Ch. B. Gilbert, that the apportionment imposes no hardship on the tenant; for, though it subjects him to several actions and distresses, he may always avoid them by punctual payment. Chitty, contrà. The apportionment can only be legally made by the lessor, with the consent of the lessee, or by the verdict of a jury. It cannot even be made by the Court. This is so laid down in Bacon's Abr. tit. Rent, M, where all the authorities are collected. Indeed, if this apportionment be valid, how is the tenant to know what sum he is to tender to the person claiming the rent? If the reversion belongs to two tenants in common, the tenant cannot discharge himself against one by paying too much to the other; but the former may distrain. Harrison v. Barnby. (a) If this apportionment is valid, the tenant may, without notice, pay too much to either. It is clear that if there be a right of re-entry reserved to the purchaser of part of the premises, he cannot 1822. BLISS against COLLINS. 1822. BLISS against COLLINS. enter alone; neither can he distrain, because the tenant, who has contracted only for the payment of an entire rent, is not subject to distress except for the whole. If the tenant concurs in the conveyance, and makes himself tenant to the purchaser at the apportioned rent, the latter will have all the remedies against the tenant which he would have had if the apportioned rent had been originally reserved. Here the tenant did not concur in the apportionment, and it cannot, therefore, be binding upon him. Preston, in reply. The form of the question assumes that the apportionment is equivalent to one by a jury, and the only question is, whether the landlord has the same remedies in one case as in the other. If the Court does not so consider the question, no reason can be offered for the right of binding the tenant by an apportionment to which he was not a party. The following certificate was afterwards sent : We have heard this case argued by counsel, and are of opinion, that the purchaser of the estate in question hath not, by the aforesaid conveyance, acquired the same rights and remedies against the lessee as he would have acquired if the rent had been legally apportioned by a jury; inasmuch as we think, that the lessee is not bound by this apportionment, made without his consent, but may dispute the propriety thereof, and cause the rent to be apportioned anew by a jury. (a) (a) 4 Maddox, 229. C. ABBOTT. J. BAYLEY. G. S. HOLROYD. W. D. BEST. 1822. ARDEN against CONNELL. DEBT for use and occupation, in the Palace Court. Judgment by default. The prothonotary of that court would only permit interlocutory judgment to be signed, and expressly refused to suffer the plaintiff to enter up final judgment; and, on an application to the judge of that court, he refused to interfere. Thesiger now moved for a mandamus to the judge of that court, requiring him to permit final judgment to be signed; and he contended, that by the general practice in actions of debt, the plaintiff was entitled to have final judgment. In writs of enquiry the jury were sworn to assess the damages between the parties; but in debt nominal damages only were given. A writ of enquiry was, therefore, nugatory, and of course an interlocutory judgment would be irregular, HOLROYD J. (a), It is not true, as an universal proposition, that in debt, where the defendant suffers judgment by default, the plaintiff is entitled to final judgment without executing a writ of enquiry. In actions on the stat. of Edw. 6. for not setting out tithes, there must be a writ of enquiry to ascertain the value of the tithe; so, in an action of debt for foreign money, a jury must find the value of the money. In the old form of declarations of debt, the contract stated was, that` A. sold to B. a horse for a particular sum; and if the defendant suffered judgment to pass by default, he was considered |