apportioned part shall be recoverable from such heir, or other person, by the executors or other parties entitled under this Act to the same, by action at law or suit in equity.

By sect. 5, in the construction of this Act :

·

The word "rents" includes rent-service, rentcharge, and rent-seck, and also tithes, and all periodical payments or renderings in lieu of, or in the nature of rent or tithe.

By sect. 7, the provisions of this Act shall not extend to any case in which it is, or shall be expressly stipulated, that no apportionment shall take place.

4. Where the lessor dies before the rent becomes due, but the lessor's interest does not thereby expire, the rent is payable to the heir or remainder-man. If the lessor dies after the rent has become due, it is payable to his executor (); and so of tenant for life, where the lease is not determined by his death (m); for the statutes above cited do not apply to cases where the lease is not determined by the death of the lessor (n).

The proper action in which to apportion rent between a lessor and lessee is an action of debt, and it cannot be apportioned in an action of covenant by lessor against lessee, the action being personal; but in covenant against an assignee whose obligation

(2) Duppa v. Mayo, 1 Saund. 287. (m) Norris v. Harrison, 2 Mad. Ch. R. 269; Barwick v. Foster, Cro. Jac. 227, 233; Lord Strafford

v. Lady Wentworth, 9 Mod. 21; 1 P. Wms. 180.

(n) Ante, p. 172.

arises from privity of estate, and not of contract, the case is different against him, therefore the rent may be apportioned in an action of covenant (0).

(0) Stevenson v. Lambard, 2 East. 575.

Action.

1. ACTION.

In order to enforce payment of the rent in arrear, the landlord may bring an action of either debt for use and occupation or covenant (a). If the demise is not by deed, an action of covenant (b) will not lie (c) ; but the landlord may bring an action of debt on simple contract (d), or of assumpsit for the use and

(a) Since the Common Law Procedure Act, 1852, an action for use and occupation may be considered either as an action on the case, founded on 11 Geo. II. c. 19, s. 14 (see infra), or as an action of debt at common law.

(b) As to what words constitute a covenant, see ante, pp. 114, 116.

(c) If there is a mere agreement by deed to demise, an action for use and occupation may be maintained. Elliot v. Rogers, 4 Esp. 59; Gudgen v. Bessett, 6 E. & B. 986.

(d) Wilkins v. Wingate, 6 T. R. 62; Stroud v. Rogers, 6 T. R. 63 n; Elger v. Marsden, 5 Taunt. 25; Gibson v. Kirk, 1 Q. B. 850.

occupation of the premises. The remedies by debt and covenant existed at common law, but the action of assumpsit is given by statute, 11 Geo. II., c. 19, s. 14 (e).

occupation.

By 11 Geo. II., c. 19, s. 14, "To obviate some diffi- Use and culties that many times occur in the recovery of rents, where the demises are not by deed, it shall and may be lawful to and for the landlord or landlords, where the agreement is not by deed, to recover a reasonable satisfaction for the lands, tenements, or hereditaments, held or occupied by the defendant or defendants in an action on the case, for the use and occupation of what was so held or enjoyed; and if in evidence on the trial of such action, any parol demise, or any agreement (not being by deed), whereon a certain rent was reserved, shall appear, the plaintiff in such action shall not therefore be nonsuited, but may make use thereof as an evidence of the quantum of the damages to be recovered."

An action for use and occupation is always founded on some contract, express or implied (f), and the defendant must have occupied the premises under such express or implied contract (g). Thus a tenant who agrees to take lodgings, but does not enter, is not liable for use and occupation (h). But where there is no express or implied contract, and the defendant is a mere wrong-doer or trespasser, this action will not

(e) See Selwyn's Nisi Prius, tit. Use and Occupation.

(f) Birch v. Wright, 1 T. R. 378, 387; Beverley v. Lincoln Gas Light and Coke Co., 6 A. & E. 829; Gibson v. Kirk, 1 Q. B. 850; Churchward v. Ford, 2 H. & N. 446, 26 L. J. Ex. 354.

(g) Marquis of Camden v. Batterbury, 5 C. B. N.S. 808, 7 Id. 864, 28 L. J. C. P. 335; Levi v. Lewis, 6 C. B. N.S. 766, 9 Id. 872; Hall v. Burgess, 5 B. & C.

333; Hellier v. Silcox, 19 L. J.
Q. B. 295, explained in Church-
ward v. Ford, 2 H. & N. 446,
449, 450; Smith v. Elridge, 15 C.
B. 236; Smith v. Twoart, 2 M. &
G. 841; Bailey v. Bradley, 5 C.
B. 396.

(h) Edge v. Strafford, 1 C. & J.
391; Lowe v. Ross, 19 L. J. Ex.
318, 5 Exch. 553; Towne v.
D'Heindrich, 13 C. B. 892, 22 L.
J. C. P. 219.

Debt.

lie (); nor will such an action lie if it be proved that the plaintiff's title expired after the demise, and before the period in respect of which the action is brought, although there has not been any eviction, and the possession has not been given up to the plaintiff (j).

In order to support this action under the statute, it is sufficient if there is an actual holding on the part of the tenant, and if he has the power to occupy the premises so far as depends on the landlord. Thus the tenant would be liable for use and occupation, although the premises were destroyed by fire (k). And it is sufficient if the tenant allow another person to occupy (). If a lease is made to two persons, and one holds over at its expiration, without the assent of the other, they are not both liable for use and occupation (m).

Rent payable in advance must be declared for specially (n).

The action of debt for rent is founded upon privity of contract, express or implied (0), or sometimes upon privity of estate (p). Unlike the action for use and occupation, it can be brought where the demise is by

(i) Marquis of Camden v. Batterbury, supra; Churchward v. Ford, supra; Tew v. Jones, 13 M. & W. 12; Turner v. Cameron's Coalbrook Co., 5 Exch. 932, 20 L. J. Ex. 71; Levi v. Lewis, supra. (j) Mountnoy v. Collier, 1 E. & B. 630.

(k) See Pindar v. Ainsley, cited in the judgment in Belfour v. Weston, 1 T. R. 312; Baker v. Holtzappel, 4 Taunt. 45; Leeds v. Cheetham, 1 Sim. 146; Izon v. Gorton, 5 Bing. N. C. 501; Packer v. Gibbins, Q. B. 421; Surplice v. Farnsworth, 7 M. & G.

576; Loft v. Dennis, 1 E. & E. 856.

(1) Bull v. Sibbs, 8 T. R. 327; Bertie v. Beaumont, 16 East. 33; Christy v. Tanaed, 7 M. & W. 127, 9 M. & W. 438, 12 M. & W. 316; Waring v. King, 8 M. & W. 571.

(m) Draper v. Crofts, 15 M. & W. 166.

(n) Angell v. Randal, 16 L. T. N.S. 489.

(0) Bull, N. P. 167.

(p) Lord Ward v. Lumley. 5 H. & N. 87, 656, 29 L. J. Ex. 322.