rents by any lease or demise on the lands, shall not be resorted to for such apportioned parts; but the entire shall be received by the person who, if this act had not passed, would have been entitled to such entire rents; and the proportion shall be recoverable from him by the party entitled to it in any action or suit at law or in equity." By s. 3, "these provisions shall not apply to any case in which there is an express stipulation that no apportionment shall take place; or to annul sums made payable in policies of insurance." *SECTION V. THE DECLARATION. *720 In debt for rent upon a lease founded on privity of estate, Venue. as when brought by the assignee or devisee of the lessor or his personal representatives against the assignee of the lessee, the action is local, and the venue must be laid in the county where the estate lies. But in debt by the lessor against the lessee or his executor, the action is transitory and the venue may be laid in any county; and so may the venue in debt for use and occupation. The plaintiff need not state any of the particulars of the demise, or show the local situation of the premises in the declaration. In debt for rent reserved by deed, The deed it is usual, though not necessary, to state the deed in the decla- need not ration, unless in the case of a lease of tithes or other incorporeal hereditaments which could not be granted without deed."(1) In debt for rent on a lease by the lessor, the plaintiff need not set out his title, as the lessee is estopped from disputing it; but where the action is brought by a party claiming by a deriva- Derivative tive title from the lessor, as by the assignee of the reversion, or title. by the heir of the lessor, or by an executor of a term, or for rent which became due after the death of the testator; the declaration should state the title of the lessor to the demised premises, in order that it may appear that he had such an es be stated. Thrale v. Cornwall, 1 Wils. 165. Patterson v. Scott, Stra. 776. Bord v. Cudmore, Cro. Car. 183. 1 Saund. 241. Egler v. Marsden, 5 Taunt. 25. (1 Eng. C. L. 6.) • Davies v. Edwards, 3 M. & S. 380. Wilkins v. Wingate, 6 T. R. 62. King v. Fraser, 6 East, 348. But if the particulars of the demise be stated, they must be proved as stated. Bristow v. Wright, Doug. 665. 1 Saund. 203, 5th ed. ₫ 1 Saund. 276, d. 2 Saund. 297. 2 Ch. Pl. 279. See Atty v. Parish, 1 N. R. 109. (1) (It is settled that in debt for rent, the plaintiff may state the substance of the demise without declaring on the deed, and, where it is doubtful, whether the lease were by indenture or parol, it is usual to do so, adding a count for use and occupation by way of further caution. Davis v. Shoemaker, 1 Rawle, 135.) tate in the reversion as might legally be vested in the plaintiff in the character in which he sued, and legally entitle him to recover the damages claimed in respeet of the breaches of covenant.a So, in debt by a remainder-man for rent reserved upon a lease by the tenant for life, the plaintiff must show what au*721 thority *the tenant for life had to make the lease. In debt for When an rent reserved on a lease for years, it is not necessary to aver an entry need entry or occupation by the lessee; for though he neither enters not be averred. nor occupies he must pay the rent, it being due by the contract and not by the occupation; but in debt on a lease at will for rent in arrear, the plaintiff must show an occupation, for the rent being only due in respect thereof, it should appear to the court when the lessee entered and how long he occupied. Whenever rent is reserved periodically, the declaration should state at what time it became due; and if the action be for part of a gale due at the end of any particular period, the declaration should state how the remaining part was satisfied, for otherwise the lessee may be exposed to many actions for the same demand.e Variance. Against executor or administrator, If the declaration profess to set out the terms of the reservation of rent, it will be a variance to omit the words "except as hereinafter mentioned," referring to a subsequent proviso by which a deduction is to be made if a certain event happen, although that event may not have happened. Where a declaration in debt for rent stated a demise of a messuage, land, and premises, with the appurtenances; the proof was of a demise of a messuage and land, together with the furniture, utensils, and implements: held, that as the rent issued out of the real property and not out of the furniture, it was sufficient for the plaintiff to allege and prove a demise of the real property, and therefore there was no variance. Where in debt for rent on a lease, by lessor against the assignee of the lessee, the declaration stated that all the estate, &c., of the lessee came to and vested in the defendant. It was in evidence that defendant was assignee of part only of the demised premises: held, a fatal variance. In debt for rent against an executor or administrator, if the *whole rent has accrued in the lifetime of the lessee, the action must be in the detinet only; and even though the personal representative do not enter, he is still chargeable in the detinet, 1 Ch. Pl. 363, Com. Dig. Pleader, c. 36. Gilbert, Debt, 410. Sands v. Ledger, 2 Lord Raym. 792. 1 Saund. 202, a. Bellasis v. Burbrick, 1 Salk. 209. Eaton v. Jacques, Doug. 457. Williams v. Bosanquet, 1 B. & B. 238. (5 Eng. C. L. 72.) 4 Gilbert on Debt, 414. Show. 8. 2 Ch. Pl. 280. Saund. 201, a. 'Vavasour v. Ormrod, 6 B. & C.430. Farewell v. Dickenson, 6 B. & C. 251. Curtis v. Spitty, 1 Bing. N. C. 758. ante, 718. (13 Eng. C. L. 225.) (27 Eng. C. L. 563.) 1 Hodges, 153, for he is bound to perform all the contracts of the lessee as far must be in › as he has assets; but for rent accrued after the death of the the detinet lessee the action may be brought either in the debet or aetinet if the personal representative enters; for he is chargeable as assignee in respect of the perception of the profits, whether he has assets or not, and if judgment be given against him it is › de bonis propriis. And if part of the rent be incurred in the lifetime of the lessee and part after his death, the action may be brought in the detinet only for the whole, but it cannot be brought in the detinet for part and in the debet and detinet for the other part in the same action, for there two different judgments would be necessary. If the declaration be in the debet and detinet, in a case which ought to be laid in the detinet only, it is demurrable; but not so when it is in the detinet only, in a case which might be in the debet and detinet. If the personal representative enter, he cannot plead plene administravit, but if the land be of less value than the rent, he may plead the special matter and pray judgment whether he shall be charged otherwise than in the detinet only.d Detinet for rent against an executor of lessee is transitory, because it is for arrears in the testator's time: but when it is in the debet and detinet for rent accrued in the executor's time, it must be where the land lies; for in this case the executor is charged as assignee on the privity of estate, and not on the privity of contract. If the tenancy be created by deed, and the deed is the Non est foundation of the action, the general issue is non est fuctum; factum. but if the tenancy be not created by deed, or if the deed is an Non de inducement only, non demisit is the general issue.(1) All other misit. 1 Saund. 1. Lord Rich v. Frank, Cro. Jac. 238. 1 Rol. Ab. 603. By 3 & 4 W. IV, e. 42, s. 64, an action of debt on simple contract is in all cases maintainable against executors and administrators. Id. Wilson v. Hobday, 4 M. & S. 120. e Aylmer v. Hide, S. N. P. 610. B. N. P. 169. 1 Saund. 1. Billinghurst v. Spearman, 1 Salk. 297. Gilbert, Debt, B. 2, C. 2. Cormel v. Lisset, 2 Lev. 80. 'See ante, 695, as to what matter this plea puts in issue. 2 Saund. 297. B. N. P. 170. 3 Ch. Pl. 877. (1) (In debt for rent claimed under a lease by indenture nil debet is a good plea; because the indenture is not considered the gist of the action. It does not acknowledge a debt like an obligation; the debt accrues by the subsequent enjoyment of the demised premises under it, and it will be received as evidence to show the relation of landlord and tenant between the Riens in arrere. in tene mentis. matters of defence must be specially pleaded. Formerly riens in arrere might be pleaded in debt, but since the new rules it Nil habuit would be demurrable. If the demise be by indenture, and it is so stated in the declaration, the defendant cannot plead nil habuit in tenementis in an action by the lessor; for he is estopped by the deed from alleging that the plaintiff had no power to demise. But if the indenture be not alleged in the declaration nil habuit in tenementis is primâ fucie a good plea, because no estoppel appears upon the record; the plaintiff, however, may reply that the demise was by indenture and rely upon the estoppel; but if he replies that he had a sufficient estate in the premises, he loses the benefit of the estoppel."(1) Nil habuit in tenementis cannot be pleaded in an action for use and occupation, nor in any case by the lessee where he has occupied the premises.d Entry and Entry and eviction of the whole or part of the premises deeviction. mised may be pleaded in bar to an action of debt for the rent; for the rent is thereby suspended; but the plea to be sustainable must state an eviction or expulsion of the lessee by the lessor, and a keeping him out of possession until after the rent became *724 due. A mere trespass or an illegal ouster by the *lessor will not operate as a suspension of the rent. A plea in bar, that the lessor pulled down a summer-house, whereby the lessee was deprived of the use thereof, without saying that he was expelled or put out of the same, was held insufficient; being a mere trespass, but no eviction.s A plea of eviction by a stranger must show that the stranger had a good title to evict. If a lessor grants more land than he is entitled to, it operates as an eviction as to that part to which he has no title.i 3 Ch. Pl. 877. Wilkins v. Wingate, 6 T. R. 62. And see Parker v. Manning, 7 T. R. 537, ante, 696. Gilbert, Debt, B. 3, C. 3. But it is a good plea in an action on a demise by a deed-poll, because as to the lessee it is no estoppel. See Lewis v. Wallis, 1 Wils. d Curtis v. Spitty, 1 Bing. N. C. 15. (27 Eng. C. L. 291.) 4 Moor & S. 554. Bushell v. Lechmore, I Lord Raym. 370. Hodgskin v. Queenborough, Willes, 129. 1 Saund. 204. The principle upon which eviction is a defence is this, that the rent issues ou of the land and is to be paid out of the profits, and if the land be taken away the rent is discharged. Slade v. Thompson, 1 Roll. 198. Co. Litt. 292, b. İd. Vouchell v. Dancastel, Moor, 891. B. N. P. 177. Where our books speak of an apportionment, in cases where the lessor enters on the lessee in part, they are to be understood where the lessor enters lawfully, as upon a surrender, forfeiture, or such like, where the rent is lawfully extinct in part. Co. Litt. 148, b. It is settled law at this day that the tenant is discharged from the payment of the whole rent till he can be restored to the whole possession. Bac. Ab. "Rent," M. 1. Hunt v. Cope, Cowp. 242. Jordan v. Twells, Cas. temp. Hardw. 171. 1 Saund. 204. Tomlinson v. Day, 5 Moore, 558. 2 B. & B. 680, (6 Eng. C. L. 315,) infra. But see Neale v. Mackenzie, post, 726. plaintiff and defendant, and the amount of the rent, and when payable. Kennedy, J., in Bauer v. Roth, 4 Rawle, 83.) (1) (Davis v. Shoemaker, 1 Rawle, 135.) Where premises are let at an entire rent, an eviction from part, if the tenant thereupon give up possession of the residue, is a complete defence to an action for use and occupation." But if the tenant, after the eviction, continue in possession of the residue, he is liable upon a quantum meruit. Where A. took a farm under an agreement from B. that A. should have the exclusive right of sporting over the manor in which it was situate, and should also occupy certain glebe land within the parish; A. entered into possession, but did not sign the agreement, and it appeared that B. had no power of conferring the right of sporting, nor could he procure the glebe land: in an action for the use and occupation of the farm, held that evidence was admissible to show the annual value of the land without such right, which might be ascertained by the jury, independently of the amount of the rent reserved by the agreement. Where lands had been let to one, who underlets to others, *725 and the latter received a notice to quit from the original landlord, in consequence of which one of them did so, and the lands occupied by him remained unlet for a year, and were then let by the original tenant; it was held that the original landlord could not recover in use and occupation for the rents of the unoccupied premises, as the circumstances amounted to an eviction, and might be pleaded to the whole demand.d and the Where by parol a dwelling-house and premises were de- If a lessor mised for a year, and the lessee accepted the lease, and by vir- demises by parol tue of the demise entered upon the premises, but before and at more land the time of the demise, eight acres included in it had been de- than he is mised to a third party, in whose possession they were, so that entitled to, the lessee could not and did not enter upon them, the Court of at an enExchequer held, that the lessee was in under the lease, he tak- tire rent, ing an interesse termini in the eight acres; and that the want lessee enof possession was not equivalent to an eviction by the tortious ters upon act of the landlord, but was quasi an eviction by an elder title, that porand that, therefore, while out of the possession of the eight tion of the land only acres, the rent was not suspended but was apportioned; and which the might be distrained for. But on a writ of error this decision lessor has was reversed in the court of Exchequer Chamber. Lord Den- a right to man, C. J., in delivering the judgment of the court, observed, let, he is not liable that as the defendant had taken no interest as to the eight acres, and as he was not bound by any estoppel, (this not being tress; for the case of a demise by indenture,) the distress was not justifi- the rent * Smith v. Raleigh, 3 Camp. 513. Ellenborough. Stokes v. Cooper, 3 Camp. 514, n. Dallas. to a dis Tomlinson v. Day, 5 Moore, 558. 2 B. & B. 680, (6 Eng. C. L. 315,) supra. In reference to this case Lord Denman said, in Neale v. Mackenzie, 1 M. & W. 764, post, 726, that if it was an eviction of an exclusive right of sporting, it was by title paramount. The agreement for exclusive sporting was not void because of an agreement to let it to another person, but it was defeated because another person interposed who had a right superior to the landlord. e Burn v. Phelps, 1 Stark. 94. (2 Eng. C. L. 310.) Ellenborough. Neal v. Mackenzie, 1 Gale, 119. 2 C. M. & R. 84. |