§ 4. The attornment of a tenant to any stranger shall be void, unless it be with the consent of the landlord of such tenant, or pursuant to or in consequence of the judgment, order, or decree of a court.

3. Effect of Eviction.

When and how rent may be apportioned.

The actual use and enjoyment of the land being the consideration for the rent, eviction before the rent becomes due, is a good answer to a claim therefor. Co. Lit. 292, b; 1 Saund. 204, note; Wood v. Partridge, 11 Mass. 488; 23 Pick. 299.

Sometimes the eviction of part suspends the entire rent. Briggs v. Hall, 4 Leigh 484. Sometimes the rent may be apportioned. Newton v. Wilson, 3 H. & M. 479; Bac. Abr. tit. Rent L, M 2; 1 Rol. Abr. 236, Apportionment C, pl. 2.

The revisors of the Code of Virginia proposed the following as chapter 140:

§ 1. On the determination, by death or otherwise, of the estate or other thing, from or in respect of which any rent, hire or money coming due at fixed periods, issues or is derived, or on the death of any person interested in such rent, hire or money, the person or the personal representative or assignee of the person, who would have been entitled, but for such death or determination, to the rent, hire or money coming due at any such period, shall have a proportion thereof according to the time which shall have elapsed of the time for which the said rent, hire or other money was growing due, including the day of such death or determination; deducting a proportional part of the charges.

§ 2. For recovering such proportion, the said person, representative or assignee, shall, after such fixed period, have such remedies as he would have had for recovering the whole of such rent, hire or other money, if entitled thereto.

§3. This chapter shall not apply to any case in which it is expressly provided that no apportionment shall take place.

To this chapter the revisors subjoined (p. 708, 9 of their reports,) the following note:

The rule of the common law, that an entire contract cannot be apportioned, was altered in England by the statute of 11 Geo. 2, ch. 19, 15, in the case of a tenant for life dying before the day on which rent was payable. The statute of Virginia, in 1 R. C. 1819, p. 389, § 56, has gone a little farther in providing for the apportionment of hire as well as rent. It directs that "the rent of land or hire of slaves shall be apportioned between the executor or administrator of him who, having a freehold or other uncertain estate in the land, and the use for life, or for other uncertain term, in the slaves, shall die before the rent or hire becomes due, and him who shall succeed to the land

and slaves as heir, devisee, or person in reversion or remainder, unless, in case of a devisee, the contrary be directed by the testator." The case of a person still alive, whose interest determines on the death of another, is equally within the mischief of the English statute of George, and of the Virginia act, but is not within the letter of either. To remedy this in England, there was enacted on the 16th of June 1834, the statute of 4 Will. iv., ch. 22. The preamble to this statute recites, that "by law, rents, annuities and other payments, due at fixed or stated periods, are not apportionable, (unless express provision be made for the purpose,) from which it often happens that persons (and their representatives) whose income is wholly or principally derived from these sources, by the determination thereof before the period of payment arrives, are deprived of means to satisfy just demands, and other evils arise from such rents, annuities and other payments not being apportionable;" and the statute provides for all cases of this description, besides remedying the particular defect before mentioned in respect to leases. The present chapter is a revision of the Virginia act in 1 R. C. 1819, p. 389, § 56, and of both the English statutes referred to, to wit, the 11 Geo. 4, ch. 19, § 15, and the 4 Will. iv., ch. 22, § 1, 2, 3.

The legislature adopted the chapter as proposed; adding to it the following:

§4. Where the holder of a rent shall purchase part of the land out of which the same issues, the rent shall be apportioned, in like manner as if the land had come to him by descent; and where the holder of land, being part of land out of which a rent shall be issuing, shall purchase such rent or part thereof, the rent so purchased shall be apportioned as aforesaid.

The English cases shewing the state of the law prior to the statute of 4 & 5 Will. 4, c. 22, are collected in Mr. Swanston's note to the case of Ex parte Smyth, 1 Swanst. 337. Decisions upon that statute have been made in Browne v. Amyot, 3 Hare 173, 25 Eng. Ch. Rep. 173; Regina v. Treasury Com'rs, 16 Adol. & El. 357, 71 Eng. Com. Law Rep. 357, 4 Eng. Law & Eq. 277; Lock v. De Burgh, 6 Eng. Law & Eq. 65.

Mis

4. Particularly of the action for use and occupation. take to suppose that no such action lay at common law. Review of the cases. Clear that in England the action was maintained before the statute of 11 Geo. 2, c. 19, § 4. Decisions recognize the action in Virginia, Maryland, Pennsylvania, Kentucky and Massachusetts.

For the use and occupation of the plaintiff's house or land by his permission, there might be maintained at common law an action of debt. Egler v. Marsden, 5 Taunt. 25, 1 Eug. VOL. II.-24

Com. Law Rep. 6. As remarked by Tindal, C. J., ante, p. 366, this action has long prevailed and has been placed on the same footing as assumpsit.

It is a mistake to suppose that "an action of assumpsit for use and occupation would not lie at common law;" that it was first authorized by the English statute of 11 Geo. 2, ch. 19. It is a mistake, notwithstanding grave judges may have so laid down. 1 Denio 38.

Mr. Espinasse in quoting the statute of 11 Geo. 2, c. 19, remarks, that "before this statute, rent was recoverable only by action of debt;" that "at common law assumpsit would not lie for it." 1 Esp. N. P. 20. 1 Esp. N. P. 20. For this he refers to Green v. Harrington, Hutt. 34. Upon examining that case, it will be found that the count set forth, that whereas the defendant was indebted to the plaintiff £10 for the rent of a house and land which he had demised to him for one year then past, the defendant promised to pay it upon request; it was moved in arrest of judgment that no action lies upon this promise because it is debt for the rent of land and the assumpsit is of a less nature, as if one be indebted upon an obligation, and that being forfeited he promised to pay it, no action lies, for the debt is due upon the obligation and the opinion of the court accorded.

The distinction at common law was between rent reserved on a lease, for which only such action would lie as upon a specialty, and a promise to pay in consideration of occupying, on which assumpsit would lie. Hunt v. Stone, Cro. Eliz. 118; Read v. Johnson, Id. 242. This distinction may not be sufficient to explain the cases in Elizabeth's reign. Hunt v. Stone, Cro. Eliz. 118; Reade v. Johnson, Id. 242; Clerc v. Palady, Id. 259. But it is very clearly developed in the case of Green v. Harrington, decided in the 17 Jac. and other cases which follow.

Thus in assumpsit it was set forth that whereas the plaintiff locasset to the defendant a certain warehouse, the defendant assumed to pay unto him for every week that he occupied it 8s.; and it was alleged that he occupied it 27 weeks; for which, upon not paying on request, the action was brought. It was moved in arrest of judgment that this is a lease (at least at will) of the warehouse, and that the 8s. weekly is in nature of rent. The court agreed that for rent reserved upon a lease assumpsit lies not, nor for a debt upon specialty or upon record. But this was considered not rent on a lease but merely a promise that as long as the plaintiff permitted the defendant to occupy the warehouse he would pay; and for this promise in consideration of the occupying &c. it was adjudged the

action well lay. Dartnal v. Morgan, Cro. Jac. 598; Slack v. Bonsal, Id. 668; Brett v. Read, Cro. Car. 343; S. C. Sir W. Jones 329; Acton v. Simonds, Id. 364.

So in an action on a promise to pay a sum of money in consideration that the plaintiff had licensed and permitted the defendant to enjoy such lands, it being moved in arrest of judgment that the license and permission here amount to a demise, and therefore the action should have been debt, Hale, C. B. said, "this license and permission does amount to a lease upon which an action on the case does not lie without express promise; but upon an express promise to pay rent an action upon the case will well lie; and so it has been adjudged; for it may be the promise was the ground of the lease and reservation. And here we are after a verdict which has found the promise. So that we are to presume there was an express promise to pay so much money in consideration that the plaintiff would permit him to enjoy the land." Trevor v. Roberts, Hardr.

35.

So in another action of assumpsit there was set forth in consideration the plaintiff would permit the defendant to enjoy such lauds, a promise to pay him as much as he deserved, and that plaintiff permitted defendant to enjoy same three years and the lands were worth £ 10 per annum. It was moved in arrest of judgment 1, that it did not appear that the plaintiff had any title to the land; and 2dly, that if he had title debt lies and not this action. But the court held the contrary in both points and gave judgment for the plaintiff, How v. Norton, 1 Lev. 179; a judgment which may be regarded as overruling the case of Clerc v. Palady, Cro. Eliz. 859, cited by the supreme court of Massachusetts in Codman &c. v. Jenkins, 14 Mass. 98.

After this in the 35 Car. 2, there was an action of assumpsit, setting forth that in consideration of there having been surrendered a copyhold estate which the plaintiff should permit the defendant to enjoy from the 10th August, anno 33 Regis, till the 1st May following, he promised to pay the plaintiff 50s. and shewed that he so permitted, and the defendant had not paid the 50s. On a demurrer it was urged that here is a term for years and a rent reserved for which debt lies, and not this action; and in the argument were cited many cases; among those to support the demurrer, Brett v. Read and Chapman v. Southwick, 1 Sid. 279; and among those on the other side, Hunt v. Stone, Dartnal v. Morgan, and Acton v. Simonds. Because this had been vexata questio, the four justices took time to deliver their opinions; and afterwards they all agreed that the action lay, and gave

judgment for the plaintiff. Johnson v. May, 3 Lev. 150. They held the action for use and occupation to be, in its own nature, collateral to the action on a contract for rent upon a demise. 2 H. Bl. 323.

It is then very clear that before the statute of 11 Geo. 2, C. 19, 14, actions of assumpsit for the occupation of land were frequently maintained, not withstanding the objection that rent sounded in the realty and could not be the subject of a mere personal action. 1 Adol. & El. N. S. 855. When then a court observes that the action for use and occupation is estab lished by that statute, the expression must not be taken as meaning that it was introduced by that act but only that it was established even in cases where there was an express demise at a certain rent, if not under seal. Id. In the language of Tindal, C. J., (ante, p. 366,) the landlord was enabled to sue in that form, notwithstanding the existence of a demise by written agreement.

This being the ground of the statute of 11 Geo. 2, c. 19, § 14, can it be that Lord Denman is entirely accurate when he observes that "no instances of indebitatus assumpsit for use and occupation will be found before that act, nor any founded upon a quantum meruit;" that "they are all for some fixed sum ?" 1 Adol. & El. N. S. 855.

True it is that in Johnson v. May, the judges seem to have been of opinion that if non-assumpsit had been pleaded, there must have been proof of an express promise; they intended an express promise and not a bare promise in law arising upon the contract which they thought would not lie. And in view of this case and of Chapman v. Southwick, Sir Francis Buller lays down that "at common law it was holden that assumpsit would lie for rent on an express promise, but not upon an implied promise, and such express promise must have been made at the same time with the lease." Bull. N. P. 138.

Sir Francis Buller seems not to have referred to a decision after Johnson v. May; a decision in the 1 Jac. 2, in a case wherein the plaintiff declared that in consideration that he would permit the defendant to occupy land of the plaintiff's for one year, he would give him for it as much as it was worth. It was moved in arrest of judgment that the action would not lie, and argued on the other side that it would; for that if I contract to give for my lodging, or for such a chamber, as much as it is worth, this is a good contract, and if so, then an action lies upon it; and the plaintiff could not have an action of debt because uncertain. Mason v. Welland, Skin. 238. On a subsequent day the court said that they had perused the books, and that those cited in support of the mo