the 15th of December, with interest up to that time, and did not do so, and B. brought an action of debt, laying his damages at 107.; held, that B. could not recover more than the principal, the interest up to the 15th of December, and 10%. more, although the interest up to the time of the action amounted to a larger sum; and the judge at the trial would not order the declaration to be amended by inserting a larger sum than 107. as the damages."

SECTION III.

C

THE PLEADINGS.

FORMERLY the general issue in debt on simple contracts or on statutes, or where the deed was only matter of inducement, was nil debet; but now by Reg. Gen. H. T. 4 W. IV, the plea of nil debet is abolished; and it is ordered that in actions of debt on simple contract, other than on bills of exchange and *715 *promissory notes, the defendant may plead that he never was indebted in manner and form as in the declaration alleged, and such plea shall have the same operation as the plea of non assumpsit in indebitatus assumpsit, and all matters in confession and avoidance shall be pleaded specially. In other actions of debt in which the plea of nil debet has hitherto been allowed, including those on bills of exchange and promissory notes, the defendant shall deny specifically some particular matter of fact alleged in the declaration or plead specially in confession and avoidance. The form of plea prescribed by the above rule must be strictly adhered to. A plea that the defendant never did owe, was held bad on special demurrer, the form being that he never was indebted. In debt for work and labor on an implied contract, the defendant may show under nunquam indebitatus that the work was done under circumstances which did not raise an implied contract to pay anything. But upon this plea the defendant cannot go into any evidence of misconduct, except such as shows that there was no implied contract.

b

A plea that parcel of the money claimed was the residue of a sum agreed to be paid for a boat warranted sound and fit for use, but which was afterwards found to be of no greater value

Watkins v. Morgan, 6 C. & P. 661.
Reg. Gen. H. T. 4 W. IV.

Smedley v. Joyce, 2 C. M. & R. 721. Cooper v. Whitehouse, 6 C. & P. 545. don, 2 C. M. & R. 553, ante, 128.

⚫ld.

(25 Eng. C. L. 584.) Littledale.

than the sum paid at the time of the sale, was held bad on demurrer as amounting to the general issue. A plea in debt, that the defendant does not owe the said 10l. above demanded (the sum demanded being 18007.) is sufficient; as the amount may be rejected as surplusage. A plea to an indebitatus count in debt, that when the said sum of, &c., became due and payable, the defendant paid it, according to his contract and liability, should conclude with a verification.

Where in debt against the acceptor of a bill of exchange for 731. the defendant pleaded payment into court of 5., and "that he was not indebted beyond that sum "upon which issue was joined; held, that under this plea the defendant might make any defence applicable to the plea of nil debet though the plea would have been ill on special demurrer.d

Where a declaration in debt demanded 60/. and contained six counts for 107. each, and the defendant pleaded that he did not owe the said sum of 107. above demanded, and the plaintiff *treated the plea as a nullity and signed judgment, the court *716 set the judgment aside. Though under a plea of non assumpsit, evidence of payment is admissible in reduction of the damages, yet under a plea of nunquam indebitatus, the defendant cannot give evidence of payment, for in an action of debt there is no inquiry of damages.

Under a plea of nunquam indebitatus, to an action of debt for goods sold, the defendant may show that the goods were sold on a credit not yet expired.b But he cannot under this plea, give evidence of payment in reduction of damages.i

ment.

In debt, or scire facius, on a judgment or recognisance, the Debt on general issue is nul tiel record, which may be properly pleaded scire facias where there is no record at all, or one different from that which or judgthe plaintiff has declared upon. The plea of nul tiel record to an action of debt on an Irish judgment must conclude to the country.k

Nothing can be pleaded to a scire facias on a judgment which might have been pleaded to the original action. There fore in a proceeding by scire facias on a judgment, a plea of bankruptcy of the plaintiff must show distinctly that the bankruptcy happened at such a time that the defendant had no opportunity of pleading the fact to the original action. A

a Dicken v. Neale, 1 Mees. & Wels. 556. 5 Dowl. 176. Attwood v. Bonacich, 1 D. & R. 473. (16 Eng. C. L. 49.)

• Goodchild v. Pledge, 2 Gale, 7. 1 Mees. & Wels. 363.

a Finleyson v. Mackenzie, 3 Bing. N. C. 824. (32 Eng. C. L.) Sec Rawlins v. Danvers, 5 Esp. 38.

Risdale v. Kelly, 1 C. & J. 410. Edington v. Town, 1 M. & P. 276. But see Macdonnell v. Macdonnell, 3 B. & P. 174.

'See ante, 145.

Belpin v. Butt, Exch. T. T. 1837, MS. Broomfield v. Smith, 1 Mees. & Wels. 542. 2 Gale, 114. See ante, 127.

i Belbin v. Butt, 2 Mees. & Wels. 422. 1 Mur. & Hur. 70. Ante, 716. Gilbert, (Debt,) 444. Marsh v. Cutler, 3 Mod. 41. Tidd's N. P. 363.

Id. Collins r. Lord Mathew, 5 East, 473. See Guiness v. Carrol, 1 B. & Ad. 459. (20 Eng. C. L. 429.)

plea which left it uncertain whether the bankruptcy happened subsequently to the judgment was held bad on special demur

rer.a

Debt lies

SECTION IV.

DEBT FOR RENT.

RENTS reserved on leases for years, or tenancies at will, were for rent on recoverable at common law by an action of debt; and so were a lease for the arrears of rent received on a lease for life after the expira

lives or years.

tion of the lease; but debt did not lie at common law for rent reserved on a lease for lives during the continuance of the lease, until the 8 Anne, c. 14, s. 4, which enacted, that "any *717 *person entitled to rent in arrear, on a lease for life or lives might have an action of debt during the existence of the life, in the same manner as he might have done in case such rent were due or reserved upon a lease for years.'

Executors

nistrators may maintain debt

for rent.

At common law, if a person seised of rent-service, rentand admi- charge, rent-seck or fee-farm in fee-simple died, and there was rent arrear, neither his heir or executor could maintain an action of debt for such rent: the heir was not competent to sue, because he was a stranger to the personal contracts of his ancestor; and the executor was incompetent, inasmuch as he did not represent his testator as to any contracts relating to the freehold and inheritance. To obviate this inconvenience it was enacted by stat. 32 H. VIII, c. 37, s. 1, that an executor or administrator of any person seised of rent-service, rentcharge, or rent-seck, or of a fee-farm rent, in fee, in tail, or for life, might maintain debt against the person who ought to pay the same, and his personal representative.d

Debt will lie for rent whether the demise be by deed, by

Baylis v. Hayward, 1 Harr. & Woll. 609. 5 Nev. & M. 613.

1 Roll. Ab. 594, (G.) pl. 1. Ognel's case, 4 Rep. 49. 2 Saund. 303.

It has been held that this provision applies only to the case of rent due from a tenant holding by lease or demise under his landlord, and therefore that debt does not lie for the arrears of an annuity issuing out of lands, and payable to the annuitant for life, although it is not stated in the declaration that the grantor had a freehold in the premises out of which the annuity was payable; as it must be inferred that he had such an interest, where nothing appears to the contrary. Kelly v. Clubbe, 6 Moore, 335. 3 B. & B. 130. (7 Eng. C. L. 378.) Nor for the arrears of an annuity or yearly rent devised payable out of lands to A. during the life of B., to whom the lands are devised for life, paying the same thereout so long as the estate of freehold continues. Webb v. Jiggs, 4 M. & S. 113.

The executors of tenant for life of a rent-charge, and of tenant pur autre vie, after the death of cestuique vie, might bring debt to recover the arrears of such rent by the common law. But they could not distrain for the arrears by the common law, which they may now do by force of the statute. 1 Saund. 282. This is a remedial law, and shall extend to all tenants for life. Id.

writing not under seal, or by parol. Any words which are sufficient to create a privity of contract between the parties, will enable the landlord to maintain this action. It lies, therefore, for the non-payment of rent on the word "yielding” in a lease for years, for it is an agreement to pay rent which

amounts to a contract.

Since the action of debt is maintainable in respect of the *privity of contract, it is immaterial whether there is any pri- *718 vity of estate or not; therefore the entry of the tenant on the land demised is not necessary to enable the landlord to maintain an action of debt. If the lessor assign the rent without reversion, the assignee may maintain debt for it, because the privity of contract is transferred. Debt lies against a devisee of land, for the breach of covenant by the devisor. If a lessee for years assigns all his interest to another the lessor may still have an action of debt against him, for the rent in arrear after the assignment, for the lessee shall not be permitted to prevent by his own act, such remedy as the lessor had against him on his contract. But if the landlord has accepted rent from the assignee of the lessee, he cannot maintain debt against the lessee or his representatives; his remedy is by an action of covenant on the express contract. It is not clearly settled whether debt lies against the assignee of part of the land demised for the rent of the whole. But debt lies against such assignee for the portion which he holds, or against him and the lessee jointly for the whole rent."(1)

tion.

Debt lies for use and occupation on a parol demise where Use and the premises are held under a lease, not by deed, even though occupathe lessee himself has not occupied the premises; for he is liable in respect of his express contract. If rent be payable quarterly or otherwise debt lies on each default.j

At common law, if the lease was determined before the legal Apportime of payment, there could be no apportionment in respect tionment of part of the time; as if a tenant for life made a lease, render- of rent. ing rent at Christmas and died at Michaelmas, there could be

1 Saund. 233.

Bellasis v. Burbrick, 1 Salk. 209. Allen v. Bryan, 5 B. & C. 512. 22. Marle v. Flake, 3 Salk. 118.

Eaton v. Jaques, Doug. 455. 1 Saund. 202, a.
Eng. C. L. 292.) Robins v. Cox, 1 Lev.

(11

Wilson v. Knubley, 7 East, 127., but

c. 47, ante, 666.

Auriol v. Mills, 4 T. R. 98.

Curtis v. Spitty, 1 Bing. N. C. 758. (27 Eng. C. L. 563.) 1 Hodges, 153. 2 Saund. 182.

¡ Wilkins v. Wingate, 6 T. R. 62. Egler v. Marsden, 5 Taunt. 25. (1 Eng. C. L. 6.) The Dean of Roshester v. Pierce, 1 Camp. 466. Bull v. Sibbs, 8 T. R. 327. Conolly v. Baxter, 2 Stark. 527. (3 Eng. C. L. 453.) But if the plaintiff has recognised another person as his tenant, he cannot afterwards charge the lessee. Thomas v. Cooke, 2 B. & A. 119.

12 Saund. 303.

(1) (Norton v. Vulter, 1 Hall, 384. The assignee of the lessor may maintain debt against the assignee of the lessee. Howland v. Coffin, 9 Pick. 52. 12 Pick. 125.)

no apportionment of the rent for three quarters. But now by *719 *stat. 11 Geo. II, c. 19, s. 15, "where tenant for life dies before, or on the day on which rent is reserved or made payable, upon any demise or lease of lands, &c., which determines on the death of such tenant for life, his personal representative may in an action on the case recover from the under-tenant of such lands, &c., if the tenant for life die on the day on which the same was made payable, the whole, or if before such day, then a proportion of such rent, according to the time the tenant for life lived, of the last year or quarter of a year, or other time in which the said rent was growing due, making all just allowances or a proportional part."

1

- A lease for years by a rector having ceased by his death, the succeeding incumbent received from the lessee the rent for the whole year in the course of which the lessor died; held, that the executor was entitled to an apportionment." Where a tenant for life with leasing power granted leases from year to year, some by parol and some in writing, but not conformable to the power, and died before the expiration of the year, it was held that the lessee's interest was determined by the death of the lessor, and that the rent was apportionable. But where a tenant in fee demised lands from year to year and died, having devised the lands for life, and the devisee for life received rent, but did not live long enough to have a right to determine the yearly tenancy; held, that the administrator of the tenant for life was not entitled to an apportionment of the For the tenant for life could not have put an end to the occupation of the sub-tenants, as notices to quit had not been given; and it was better to adhere to the words of the statute than to force constructions.

rent.

с

By 4 & 5 W. IV, c. 22, the provisions of 11 G. II, c. 19,a respecting the apportionment of rents, are extended to rents reserved on leases, determining upon the death of the person making the same, (although not strictly tenant for life,) or on the death of the tenant pur autre vie. And by sec. 2, "all rents, annuities, and other payments coming due at fixed periods, under any instrument executed, or (being a will) which shall come into operation after the passing of this act, shall be apportioned, so that on the death of any person interested therein, or on the determination, by any other means, of the interest of such person, he or his personal representatives shall be entitled to a proportion thereof, subject to all just deductions; and the person entitled to such proportion shall have the same remedy for the recovery thereof as he would have had for the recovery of the entire portion, but so that persons liable to pay

Hawkins v. Kelly, 8 Ves. 308.

Ex parte Smith, 1 Swans. 337. Symons v. Symons, 6 Madd. 207. A land-tax, quit-rent, &c., is not apportioned as between tenant for life and remainder-man. Sutton v. Chaplin, 10 Ves. 66.

с

Botheroyd v. Woolley, 1 Gale, 66. 1 C. M. & R. 834.

Ante, 719.