Eviction-In debt, as in other remedies for rent arrear, an eviction may be pleaded in bar, for that occasions a suspension of the rent; but care must be taken that an eviction, or such facts as amount in law to an eviction, be stated in the plea; for, if a mere trespass, or an illegal ousterf only, be stated, the plea will be insufficient. See post, Replevin. If the land be evicted, or the lease determine before the legal time of payment, no rent shall be paid; because there shall never be any apportionment in respect of part of the time, as there shall be in respect of part of the land (89). Hence, at common law, if tenant for life made a lease for years, rendering rent at Easter, and the lessee occupied for three quarters of a year, and in the last quarter before Easter the tenant for life died; in this case there was not any apportionment of rent for the three quarters of a year (90). But now by stat. 11 Geo. 2. c. 19. s. 15. "Where tenant for life dies before or on the day on which rent is reserved or made payable, upon any 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 a day, then a portion 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." See Botheroyd v. Woolley, 5 Tyrw. 522.

To remove doubts which had been entertained upon the construction of the foregoing provision, it was enacted and declared by stat. 4 & 5 W. 4. c. 22. s. 1. [27th June, 1834,] that rents reserved and made payable on any lease of lands, &c. which

e Reynolds v. Buckle, Hob. 326. Hunt f Vochell v. Dancastell, Moor, 891. v. Cope, Cowp. 242. g Clun's case, 10 Rep. 128. a.

(89) "Where our books speak of an apportionment in case where the lessor enters upon 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."1 Inst. 148. b.

(90) "If there be lawful eviction from part by an elder title, it is clear that the rent is apportioned only, and not suspended." Per Parke, B., delivering the judgment of the court in Neale v. Mackenzie, 5 Tyrw. 1125.

shall determine on the death of the person making the same (although such person was not strictly tenant for life thereof,) or on the death of the life for which such person was entitled to such hereditaments, shall, so far as respects the rents reserved by such lease, and the recovery of a proportion thereof by the person granting the same, his executors, or administrators (as the case may be,) be considered as within the foregoing provision. And by s. 2. "All rents service reserved on any lease by a tenant in fee, or for any life interest, or by any lease granted under any power, all rents-charge and other rents, annuities, pensions, dividends, moduses, compositions, and all other payments, in G. B. and I., made payable at fixed periods, shall be apportioned in such manner, that on the death of any person interested in any such rents, annuities, &c. or in the estate, &c. from which the same shall be issuing, or on the determination by any other means, of the interest of any such person, he and his executors, administrators, or assigns, shall be entitled to a proportion of such rents, annuities, &c. and other payments, according to the time which shall have elapsed from the commencement or last period of payment thereof respectively (as the case may be), including the day of the death of such person, or of the determination of his interest, all just allowances and deductions in respect of charges on such rents, &c. and other payments being made; and that every such person, his executors, administrators, and assigns, shall have the same remedies at law and in equity for recovering such apportioned parts, when the entire portion, of which such apportioned parts shall form part, shall become payable, and not before, as he would have had for recovering such entire rents, annuities, &c. if entitled thereto, but so that persons liable to pay rents reserved by any lease, and the lands, &c. comprised therein, shall not be resorted to for such apportioned parts specifically, but the entire rents of which such portions shall form a part shall be received and recovered by the persons, who if this act had not passed would have been entitled to such entire rents; and such portions shall be recoverable from such persons by the parties entitled to the same under this act, in any action or suit at law or in equity; provided, that these provisions shall not apply to any case, in which it shall be expressly stipulated, that no apportionment shall take place, or to annual sums made payable in policies of assurance of any description."

Nil habuit in tenementis.-If the plaintiff declares upon

h S. 3.

an indenture of lease, the defendant cannot plead nil habuit in tenementis, or non dimisit; because the defendant, by the execution of the counterpart of the indenture, is estopped from controverting either the power of the plaintiff to demise or the actual demise; but otherwise it is, where the demise is by deed poll, or by parol. In debt for rent reserved upon a lease by indentures, if the defendant pleads nil habuit in tenementis, the plaintiff need not reply the estoppel, but may demur; because the declaration being on the indenture, the estoppel appears on the record. If to debt on a demise, without deed, the defendant pleads nil habuit in tenementis, the plaintiff ought in his replication to shew specially what estate he had in the premises. But if, instead of doing this he replies, "that he had a good and sufficient title," and issue is joined thereon and found for the plaintiff, the defect in the replication will be aided by the verdict. Nil habuit in tenementise cannot be pleaded to debt for use and occupation.

Statute of Limitations.-By stat. 21 Jac. 1. c. 16. s. 3. actions of debt for arrearages of rent shall be commenced and sued within six years next after the cause of such actions. This statute is confined to actions for arrears of rent, upon a demise without deed, and does not extend to cases of rent reserved by specialty. But by stat. 3 & 4 W 4. c. 42. s. 3. [14 Aug. 1833,] "All actions of debt for rent upon an indenture of demise shall be commenced and sued within ten years after the end of this present session, or within twenty years after the cause of such actions or suits, but not after." See 3 & 4 W. 4. c. 27, s. 42, and Paget v. Foley, 2 Bing. N. C. 679, ante, p. 522.

a Gilb. Debt. B. 3. c. 3.

b Per Cur Lewis v. Willis, 1 Wils. 314.

d Gill v. Glasse, Yelv. 227.
e Curtis v. Spitry, Bingh. N. C.

15.

c Heath V. Verneden, 3 Lev. 146. f Freeman v. Stacy, Hutt 109. Kemp v. Goodall, Salk. 277.

IX. Debt against Sheriff, &c. for Escape of Prisoner in Execution-Stat. 13 Ed. 1. c. 11. 1 R. 2. c. 12.What shall be deemed an Escape-Of Recaption-By whom the Action for an Escape may be brought— Against whom.-Declaration-Pleadings-Evidence.

By the common law, sheriffs and gaolers were obliged to keep persons in execution "in close and safe custody;" but if such prisoners escaped, the only remedy which the creditor had against the gaoler, was, by an action upon the case, grounded upon the tort; for, at the common law, an action of debt did not lie for an escape. The statute of Westminster the second (13 Ed. 1. c. 11.) first gave the action of debt against the gaoler who permitted the escape of a person committed to prison by auditors for arrears of account. That statute having authorised the commitment of the bailiff or receiver, in case he is found in arrear, proceeds thus: Et caveat sibi vicecomes vel custos (91) ejusdem gaolæ, sive sit in libertate sive non, quod per commune breve, quod dicitur replegiare, vel alio modo sine assensu (92) domini ipsum a prisoná exire non permittat; quod si fecerit, et super hoc convincatur, respondeat domino de damno per hujusmodi servientem sibi illato, secundum quod per patriam verificare poterit, et habeat [dominus] suum recuperare, per breve (93) de debito [versus custodem]. Et si custus gaolæ non habeat per quod justicietur vel unde solvat, respondeat superior suus (94), qui custodiam hujusmodi gaolæ sibi commisit, per idem breve (95).

(91) This act extends to all keepers of gaols, as well by wrong or de facto, as de jure. 2 Inst. 382.

(92) This assent may be by parol, and shall be a sufficient bar in an action of debt brought for the escape. 2 Inst. 382.

(93) Although this statute and the subsequent stat. 1 R. 2. c. 12, only mentions" 'per breve," yet a bill of debt lies also by the equity of these statutes. 2 Inst. 382.

(94) When a person, having the custody of a gaol of freehold or inheritance, commits the same to another, who is not sufficient, the superior shall answer for the escape of the prisoner. The mayor and citizens of London having the shrievalty of London in fee, and the sheriffs of London being guardians under them, and removable from year to year, the mayor and citizens are the superiors;

The next statute on this subject is stat. 1 R. 2. c. 12. by which it is ordained, "that no warden of the Fleet shall suffer any prisoner there being, by judgment at the suit of the party, to go out of prison by mainprize, bail, nor by baston, without making gree to the said parties of that whereof they were judged, unless it be by writ or other commandment of the king, upon pain to lose his office, and the keeping of the said prison. And if any such warden be attainted by due process, that he has suffered such prisoner to go at large against this ordinance, then the plaintiffs shall have their recovery against the warden, by writ of debt." Though this statute is confined in terms to the wardens of the Fleets, yet it has been holden that sheriffs and other gaolers are within the equity of it. On the preceding statutes, extended by a liberal construction, the action of debt against sheriffs and other gaolers, for original escapes out of execution, is wholly founded. It is observable, however, that these statutes being in affirmance of the common law, have not taken away the common law remedy by action on the case: and that it is at the election of the party to bring either the one or the other (96). There is, however, an advantage attending the remedy given by statute, which makes it more eligible than proceeding by the common law: when an action

g Plowd 35 b.

h Burton v. Eyre, Cro. Jac. 289.

and, although the sheriffs appoint a keeper under them, yet he is not within the statute; for there cannot be two superiors within this act, but one superior and one inferior only. 2 Inst. 382. In Plummer v. Whitchcott, 2 Lev. 158. 2 Mod. 119. T. Jones, 60. S. C., the court were of opinion, that the warden of the Fleet in fee, having granted the office to A. for life, who permitted a prisoner in execution to escape, was responsible, A. not being sufficient at the time of action brought.

(95) It was said, arg. in Plummer v. Whitchcott, 2 Lev. 159. that after this statute, and before the stat. 1 R. 2. c. 12, actions of debt were brought in other cases besides Account, and 16 E. 3 FitzDam. 81. Mich. 41 E. 3. pl. 1. 41 Ass. Bro. Escape, 28, were cited. And by Buller, J. in Bonafous v. Walker, 2 T. R. 132, it was said, that this statute (13 Edw. 1. c. 11.) by a liberal construction had been holden to extend to all cases.

(96) An action on the case is the only remedy against the sheriff for the escape of prisoners who have been arrested on mesne process; the statutes 13 Edw. 1. c. 11. and I Ric. 2. c. 12. being confined to escapes out of execution.