to retain out of the rent a sum which he might set-off as money paid to the use of the landlord. (h) A Court of Equity will not suffer a tenant to set up a title against his landlord. (i) Nor can a tenant file a bill of interpleader against his landlord on notice of ejectment by a stranger adverse to the landlord. (k) But if different parties claim the rent, such as trustees for the separate use of a married woman and the husband, the Court will, on the motion of the plaintiff and the consent of the defendants, order the tenants to pay the rent into Court. If the tenants are not parties to the suit, they are not competent to make such a motion. (1) The rule that a tenant cannot file a bill of interpleader against his landlord does not hold, where the question arises upon the act of the landlord subsequent to the lease, (m) or other commencement of the relation of landlord and tenant. (n) And where two persons claim the rent, neither of whom has been acknowledged by the tenant, he may file a bill of interpleader for the purpose of ascertaining to which of the claimants it is to be paid. (0) The lessee will be liable under his covenant to pay rent, although the demised premises may be consumed by fire. (p) upon When tenant may file a bill of interpleader against his landlord. Tenant will from payment not be relieved of rent when the premises In some former cases, where the landlord insured, and the premises being consumed, received the insurance money are burnt, and neglected to rebuild, a Court of Equity interfered to enjoin the landlord from proceeding in an action for the rent, until he should have rebuilt the house; and, in case of his refusal, gave the tenant the option of surrendering his lease. (q) But the law is now settled to the contrary, and it is clear, that (h) Waters v. Weigall, Anstr. 675. (i) Wilson v. Lord J. Townsend, 2 Ves. jun. 696. White v. Foljambe, 11 Ves. 344. (k) Dungey v. Angove, 2 Ves. jun. 304. (7) Belbee v. Belbee, 6 Madd. 28. (m) Cowtan v. Williams, 9 Ves. 107. (n) Clarke v. Byne, 13 Ves. 383. (p) Supra, 227. (q) Camden v. Morton, 2 Eden. 219. Brown v. Quilter, 2 Eden, 219. S. C. Ambl. 619. Steele v. Wright, cited 1 T. R. 708. And see Cutter v. Powell, 6 T. R. 323. though the landlord may have received insurance money. nor where premises are destroyed by floods, &c. the Courts will not now assist the tenant under these circumstances. (s) Equity, however, afforded relief in a case in which a piece of land had been demised at a small annual rent, with a reservation of so much per wey of coals, to be obtained from the premises, and a covenant by the tenant to raise 900 weys yearly, if so much good merchantable coal could be had, and with a proviso relieving the tenant for his rent, in case, after using due diligence, 900 weys a-year could not be obtained; or if all the coal, except the pillars, should be worked. The colliery becoming not worth working, the tenant offered to pay for all the coal that could be got, and was relieved from the future rent and his covenant to work the mine. (t) Where the premises have been destroyed by floods, or where the tenant is kept out of possession by rebels or enemies, there is no equity to relieve him from the payment of his rent. (u) 115. (s) Holtzapffell v. Baker, 18 Ves. Leeds v. Cheetham, 1 Sim. 146. Supra, 227, et vide Hare v. Grover, 2 Anst. 576. (t) Smith v. Morris, 2 Br. Ch. Ca. 311. (u) Harrison v. Lord North, 1 Ch. Ca. 83. 665 CHAPTER THE THIRD. Of the Landlord's and Tenant's Remedies against HERE a stranger is guilty of an injury to the estate demised, the landlord, in respect of his reversionary interest, may charge him, provided the injury be of such a nature as to affect the reversion; and in that case he may recover proportionable damages. But as the injury is not immediate, but is consequential to the landlord upon the act of the wrong-doer, trespass will not lie by the landlord for such an injury, but his proper remedy is by an action upon the case. (a) If, however, a stranger enter upon the tenant, and cut down trees, the landlord, immediately, upon their severance, acquires such a possession as will enable him to maintain trover for them. (b) Where the reversioner brought an action on the case for an injury to his reversion, and stated in his declaration that (a) 2 Rol. Abr. 551. 1. 46. Jefferson v. Jefferson, 3 Lev. 130. Biddleford v. Onslow, ibid. 209. Panton v. Isham, ibid. 359. S. C. 1 Salk. 19. Jesser v. Gifford, Burr. 2141. Evelyn v. Raddish, Holt's (b) Harlakendan's case, 4 Rep. II. The te nant's remedies against strangers. he was seized in his demesne as of fee, of a certain close, &c. which said close at the time of the grievance was and still is in the possession of H. V., as tenant of the said plaintiff, the Court of Common Pleas held, that it was sufficient to prove that the close was in the possession of H. V. at the time of the injury committed, though the tenant had been changed before the action was brought. (c Where the landlord had distrained his tenant's goods, and delivered them to A. upon A.'s undertaking to pay the rent, which he failed to do, it was held that the landlord could not maintain an action for money had and received against A. for the value of the goods. (d) The landlord of a tenement in respect of which he claims a right of way over the lands of a stranger, does not lose or spend his right to use such way for proper purposes, by demising the premises and transferring the occupation of them to a tenant. Where, therefore, A. brought an action against B. for breaking and entering his close, and B. pleaded a right of way, and at the trial it appeared that the premises, in respect of which the right was claimed, were in the occupation of B.'s tenant, and that B. went over the locus in quo to assert the right of way which had been obstructed, the Court held that B. the landlord, might use the way to view the waste, to demand rent, or to remove an obstruction. (e) II. The tenant's possessory interest enables him to maintain trespass against a stranger for any act by which his possession is immediately affected; or an action upon the case for the commission of any act, the consequences of which are injurious to his possession. (ƒ) (c) Vowles v. Miller, 3 Taunt. 137. (d) Leery v. Goodson, 4 T. R. 687. (e) Proud v. Hollis, 1 B. & C. 8. (ƒ) 2 Rol. Abr. sup. It is said by Lord Coke (g) that for waste committed by a stranger, he in reversion cannot have any remedy but against the tenant, and that the tenant shall have his remedy against the wrong-doer, and recover all in damages against him, and by this means the loss shall light upon the wrong-doer. However, both lessor and lessee shall sue in respect of trees injured by a stranger, the lessor for the body of the tree, the lessee in respect of the shade and fruit. (h) So if a stranger subvert land leased at will, or for years, the lessee may bring trespass against him and have damages for the profits, and the lessor may have another action of trespass, and shall recover damages for the destruction of the land. (i) Where a stranger enters and cuts down trees, the tenant may maintain trespass against him for the breaking of his close, and the cutting down of the trees. But since their severance puts an end to his interest in them, he cannot recover for the value of the trees, or maintain trespass, de bonis asportatis, or trover against the party for carrying them away. (k) The tenant after his term has expired, may maintain either case or trespass, according to the nature of the injury done to his possession, during the existence of his term. (1) The damages to be recovered by the tenant must be proportioned to his temporary interest in the land. Where, however, the landlord demised lands at an annual rent for twenty-one years, with liberty to the lessee to dig half an acre of brick earth annually; and the lessee covenanted that he would dig no more; or, if he did, that he would pay an increased rent of 3751. per half acre, being after the same (g) 2 Inst. 303. (h) Biddlesford v.Onslow, 3 Lev. 209. (i) 19 Hen. VI. 45. 2 Rol. Abr. 551, pl. 4, 5. (*) Harlakenden's case, 4 Rep. 62. b. Evans v. Evans, 2 Camp. 191. (1) Bro. Abr. Trespass, 456. |