At what Hour Rent is Due. case. This opinion of Lord Hale was denied by counsel in argument in Lord Rockingham v. Penrice, 1 P. Will. 177, 178, and 2 Salk. 578, and the case of Southern v. Bellasis, decided by Mr. Justice Tracy, was cited as an authority against it. But the last case, and a similar one determined by Lord Macclesfield in tain leasehold premises to trustees, on trust to permit and suffer his wife to receive the rents, &c.; and afterwards the surviving trustee and the widow granted a lease of the premises, the rent to be paid to the widow, and the lessors reserved a power of re-entry on non-payment of the rent, and the lease disclosed the title of the widow, who, after the death of the trustee, entered on the premises; it was held that, being a stranger to the legal estate, the power of re-entry could not be reserved to her, and that the lease operated as a lease by the trustee, and a confirmation by her. 2 Cr. & J. 674. Doe v. Goldsmith. Where in an under-lease it was provided that the lessee and the original lessor might re-enter for any breach of covenant, it was held, that the lessee alone might maintain ejectment for a forfeiture incurred by the under-lessee. Bing. 276. Doe v. White. 12 B. Moore, 526. S. C. And now by stat. 8 & 9 Vict. c. 106, s. 5, "under an indenture executed "after October, 1845, an imme 4 C. B. N. S. 372. Shaw v. Coffin. The statute does not apply to leases not under seal. 10 Q. B. 135. Standen v. Christmas. 5 C. B. 929, 931, 932. And the remedy upon the stipulations contained in such leases is by action in the name of the original stipulator. 5 C. B. 921. Bickford v. Parson. 1 Smith L. C. 52, 6th edit. [But it must not be inferred that a party who demises land by an instrument not under seal may not introduce a condition into it, At what Hour Rent is Due-Apportionment of Rent-11 Geo. 2, c. 19, s. 15. the last instant, the rent will go along with the land to him in the reversion or remainder, because being payable on those days during the term, the lessee has till the last instant to pay his rent; and consequently the lessor dying before it was completely due, his representatives can make no title to it (c). of which is the case put by Lord Hale), and one made by a bare bare tenant for life; in the latter case, if the lessor lives to the beginning of the rent-day, at which time a voluntary payment of rent might be made (vide 10 Rep. 127 b), that is sufficient to entitle the executor to the rent rather than it should be lost; but in the former case, by the death of the lessor before provided he uses fit and proper words for the purpose. 8 B. & C. 308. Doe v. Wall.] It is a good defence to an ejectment for a forfeiture, that the landlord, after the execution of the lease, conveyed away his title to the premises by mortgage. 5 B. & Ad. 1065. Doe v. Edwards. 3 Nev. & M. 193. S. C.] (2) And so is the law at this day, [in cases of leases granted before the passing of the stat. 4 W. 4, c. 22,] notwithstanding the statute hereinafter mentioned. 2 Madd. 268. Norris v. Harrison. By statute 11 Geo. 2, c. 19, s. 15, it is enacted, "That where 'any tenant for life shall happen "to die before or on the day on "which any rent was reserved ing due as aforesaid, making all "just allowances, or a proportion"able part thereof respectively." This statute applies to all cases where the lease determines by the death of the tenant for life: therefore, where the tenant for life has a power to make leases upon certain terms, but in fact makes leases not pursuant to the power, upon his death the rent must be apportioned; 1 Swanst. 337. Ex parte Smyth; and see the elaborate notes of the reporter in the same case, and Clarkson v. Lord Scarborough there cited. In those cases the tenant for life having a power to lease by deed, with certain covenants, had leased by parol from year to year. It Apportionment of Rent. should seem, however, that if the lease, or an agreement for it, be in writing, and under such circumstances that the tenant must be considered in equity as a purchaser, the contract, although not made strictly pursuant to the power, will be enforced in equity to the extent of the power, and of course the statute will not apply. 1 Swanst. 357. Ex parte Smyth, note. Whether the executors of tenant in tail, who has made leases, void as against the remainderman, and dies without issue, be within the equity of this statute, seems doubtful. Ambl. Ambl. 198. Paget v. Gee. 2 Bro. C. C. 659. Vernon v. Vernon. Whitfield v. Pindar there cited. 8 Ves. 308. Hawkins v. Kelly. The utmost extent of the cases is, that if the remainderman has received the whole rent, he shall account in equity to the executors of the tenant in tail. It is questioned by Mansfield, C. J., in 3 Taunt. 331. Wykham v. Wykham, whether the executors of tenant pur autre vie are within this statute. But, with submission, that question can hardly arise; for it should seem that either the special occupant, or executor or administrator, or devisee of tenant pur autre vie would be bound by a lease granted by him in his lifetime, and the rent payable under that lease would of course go with the reversion, since the lessee's interest in such case is not determined by the death of tenant pur autre vie, but by the death of cestui que vie. Probably there is an error in the report, and the question intended to be put by Mansfield, C. J., was, whether it had ever been determined that tenant pur autre vie was entitled to a portion of the rent under this statute, where cestui que vie died between two rent-days. That he is within the mischief of the Act seems clear, for otherwise the rent would be lost: and it is no answer to say that he might have provided for the case by express covenant, for so might tenant for his own life. The words of the statute, however, confine its operation to executors of tenant for life, and it might probably be considered too great an extension of the equity of it, if tenant pur autre vie were held to be entitled to its benefit. It has been held that the estate of a devisee for life is not entitled to apportionment of rent upon parol leases from year to year, and not determined by himself; for in such case the interest of the tenant from year to year does not "determine on the death of "the tenant for life." 1 Johns. & H. 651. Cattley v. Arnold. But see 1 Law Rep. Eq. 671. Mills v. Trumper, where a tenant for life, under a settlement of an estate pur autre vie renewed the lease for lives to himself and his heirs, purchased the fee and made a parol demise for a year, but died before the end of the current half-year, a Apportionment of Rent-4 I. 4, c. 22. remainderman entered, received the rent on a bill by the executor of the tenant for life against the remainderman, it was held that the rent must be apportioned under the 11 Geo. 2, c. 19, s. 15. 1 Law Rep. Eq. 671. Mills v. Trumper. [These questions have been cleared by the passing of the stat. 4 W. 4, c. 22, which, after reciting the stat. 11 Geo. 2, c. 19, and that doubts have been enter"tained whether the provisions "of the said Act apply to every case in which the interests of "tenants determine on the death "of the person by whom such "interests have been created, and "on the death of any life or lives "for which such person was en"titled to the lands demised, although every such case is "within the mischief intended to "have been remedied and pre"vented by the said Act; and it "is therefore desirable that such "doubts should be removed by a "declaratory law: and whereas, "by law, rents, annuities, and "other payments due at fixed or "stated periods are not apportion"able (unless express provision be "made for the purpose), from "which it often happens that "persons (and their representa "mands, and other evils arise. "from such rents, annuities, and "other payments not being apportionable, which evils require "remedy," it is enacted, "that "rents reserved and made payable on any demise or lease of lands, tenements, or hereditaments, which have been and shall be "made, and which leases or de"mises determined or shall deter"mine on the death of the person "making the same (although such after the passing of this Act [Royal Assent, June 16, 1834]), "and all rents charge, and other rents, annuities, pensions, dividends, moduses, compositions, " and all other payments of every description, in the United King"dom of Great Britain and Ireland, made payable or coming Apportionment of Rent--4 W. 4, c. 22. "due at fixed periods under any instrument that shall be exe"cuted after the passing of this "remedies at law and in equity "for recovering such apportioned parts of the said rents, annuities, 66 pensions, dividends, moduses, compositions, and other pay"ments, when the entire portion "of which such apportioned parts "shall form part shall become "due and papable, and not before, "as he, she, or they would have "had for recovering and obtaining "such entire rents, annuities, pen sions, dividends, moduses, com"positions, and other payments "if entitled thereto, but so that |