If a termor for years assigns all his interest in his term, reserving an annual rent, it has been doubted whether an action of debt will lie for each payment, as it becomes due, or whether the assignor must not wait till the term is expired, because where the whole is assigned there is no reversion, and consequently the duty reserved may be thought more properly a sum in gross than a rent; but it seems settled that such sums are recoverable as rent, after each day of payment. (a) At common law, where a man made a lease for life, rendering rent, and such rent became in arrear, and the lessor died, it seems, that his executors after the death of tenant for life were entitled to recover the arrears (b); and so where there is tenant for life of a rent, and he dies, the rent being in arrear, his executors at common law may have debt for such arrears. (c) So also, where a man leases for years and dies, the rent being arrear, the executor is entitled to recover the rent. But at common law, neither the heir, nor the personal representative of a man who was seised of a rent-service, rent-charge, or rent-seck, in fee-simple or fee-tail, could bring an action of debt for the arrearages of such rents, incurred in the lifetime of the owner. But by statute, 32 Hen. 8, c. 37, s. 1, it is enacted, that the executors or administrators of tenants in fee-simple, in fee-tail, and for term of lives, of rent-services, rent-charges, rent-secks, and fee-farms, unto whom any such rent or fee-farm is due, and not paid at the time of their death, may have an action of debt for all such arrearages, against the tenant or tenants that ought to have paid the said rent, or fee-farm, so being behind in the time of their testator, or against the executors or administrators of the said tenants. And by section 3, if any man shall have in the right of his wife, any estate, in fee-simple, fee-tail, or for term of life, of or in any rents or fee-farms, and the same rents or fee-farms shall be due, behind and unpaid in the said wife's life, then the said husband after the death of his said wife, his executors, or admi (a) Gilb. on debt, $85. Newcomb v. Harvey, Carth. 161. Loyd v. Langford, 2 Mod. 174. Com.' Dig. Dett, (C). So the assignor may enter for a condition broken, Doe d. Freeman v. Bateman, 2 Barn, and Ald. 168, but he cannot distrain v. Cooper, 2 Wils. 375. Parmenter v. Webber, 8 Taunt. 593. (b) Dyer, 375, b. Ognel's case, 4 (c) Co. Litt. 162, a, and Mr. Hargrave's Note. Gilb. on rents, 98. By whom. Executors. By whom. nistrators, shall have an action of debt for the said arrearages, against the tenant of the demesne that ought to have paid the same, his executors, or administrators. Assignee. Against whom. Lessee. The assignee of the reversion (a), or of the reversion in part of the premises (b), may, at common law, maintain debt for rent arrear after the assignment of the reversion to himself; for the privity of contract is said to be annexed to the person in respect of the estate, and to follow the estate. (c) Therefore the Lord by escheat (d), or he who enters for an alienation in mortmain (e), may have debt for rent arrear. So the assignee in law of the reversion, as the heir or devisee, may bring debt for rent incurred after the death of the lessor (ƒ); and debt lies by an assignee of the reversion against an assignee of the term, after assignment of the reversion by the former, for arrears due before assignment. (g) The assignee of the reversion may maintain debt for rent against the lessee, without giving him any notice of the assignment, but if the defendant has paid the rent to the ori ginal lessor before notice, he may plead that fact and it will be a good bar. (h) A lessee is liable to an action of debt for the rent as long as the term continues, and cannot discharge himself from his liability by assignment, for debt is maintainable by a lessor against a lessee on privity of contract, and such privity remains notwithstanding the assignment (i); but debt will not lie by the assignee of the reversion against the lessee, after assignment by the latter, for there is no privity of contract between those parties. (k) And so, if the lessor accepts the assignee as his tenant, he cannot (a) Walker's case, 3 Rep. 22, b. Glover v. Cope, 4 Mod. 81. 1 Rol. Ab. 591, l. 45, 1 Saund. 241, d, note, 5th edit. (b) Ardes v. Watkin, Cro. Eliz. 651. (e) Walker's case, 3 Rep. 22, b. (e) Com. Dig. Dett, (C). Contra in (f) 1 Rol. Ab. 591, 1. 46. Com. Dig. Dett, (C). (C). Midgleys v. Lovelace, 12 Mod. 45. Carth. 289, S. C. (h) Watts v. Ognell, Cro. Jac. 192. Birch v. Wright, 1 T. R. 385. (i) Rushden's case, Dyer, 4, b. Hellier v. Casbard, 1 Sid. 266. 1 Lev. 127. S.C. 1 Saund. 241, b, notes, 5th edit. And see the observations there on Overton v. Sydhall, Poph. 120, and cited 3 Rep. 24, a. (k) Humble v. Oliver, Poph. 55. 1 Brownl. 56. Cro. Eliz. 328, S. C. Walker v. Harris, Moor, 351. Walker's case, 3 Rep. 23, b. Com. Dig. Dett, (g) Skinner, 367. Com. Dig. Dett, (D). Debt for Rent. afterwards maintain debt against the lessee, because the privity Against whom. of contract between himself and the lessee is determined by the assignment and acceptance of the assignee (a), but notwithstanding such acceptance, the lessee may still be sued on an express covenant for the payment of the rent. (b) If the lessee becomes bankrupt, he cannot be sued, in debt, for rent accruing after the commissioners' assignment; the lessor's assent to such assignment being virtually included in the act of parliament authorising the assignment of the bankrupt's estate. (c) Where the lessee has assigned, the lessor, if he has not accepted the assignee as his tenant, may sue the lessee or assignee at his election. (d) And where the lessee has assigned a moiety of the land for the whole term, the assignee has a sufficient privity of estate to be charged by the lessor for a moiety of the rent (e), or as it is said, the lessor may have a joint action of debt against the lessee and assignee for the whole rent. (f) If the assignee assigns over, debt will not lie against him for rent accruing after the assignment, although the lessor has not accepted the second assignee, and although no notice has been given of the second assignment. (g) Assignee. cutor. Where the lessee has covenanted for himself and his heirs, to Heir and Exepay the rent, debt may be maintained for rent arrear, in the lessee's lifetime, against either the heir, or executor, if assets have descended. (h) The executor of the lessee is liable in debt for the rent, notwithstanding an assignment by the testator or by himself, provided the lessor has not accepted the assignee, for there is a privity of contract between the lessor and his representatives, and the lessee and his representatives, sufficient to mainbe tain this action. (i) An executor of a lessee for years may charged for rent accruing in his own time, either as executor, or if he has entered, as assignee. (k) Lambard, 2 East, 581. (ƒ) Bailiffs of Ipswich v. Martin, Cro. Jac. 411. Com. Dig. Dett, (E). (g) Tongue v. Pitcher, 3 Lev. 295. 2 Vent. 234. 4 Mod. 71. 1 Salk. 81. 1 Show. 340. Carth. 177. 12 Mod. 23, S. C. Com. Dig. Dett, (F). (h) Shep. Touch. 178. (i) See the cases cited, ante, p. 468, note(i), and also ante, p. 446, note, (a). (k) Ante, p. 448; post, p. 470. Of the declaration. When the action is brought against the lessee himself, or against his assignee, the defendant is charged in the debet and In the debet and detinet. When it is brought against an executor, and the whole detinet,or detinet, rent accrued in the testator's lifetime, the action must be in the detinet only (a); and where part of the rent accrues in the testator's time, and part in that of the executor, the plaintiff may recover the whole in one action charging the executor in the detinet. (b) For rent incurred after the death of the lessee, if the executor enters, he may be charged as assignee in the debet and detinet (c); in which case he cannot plead plene administravit (d), and the judgment is de bonis propriis (e); but if the land be of less value than the rent, the defendant may plead the special matter, viz. that he has no assets, and that the land is of less value than the rent, and pray judgment whether he shall be charged otherwise than in the debet. (f) But the executor cannot be sued in one action, in the detinet for the part incurred in his testator's time, and in the debet and detinet for the part incurred in his own time, for then two different judgments would be necessary. (g) The plaintiff in such case must either sue the exe. cutor in one action, charging him in the detinet only, when his judgment will be de bonis testatoris, or he must bring two separate actions. If the executor does not enter, he is still chargeable in the detinet, for he cannot so waive the term as not to be liable for the rent if he has assets. (h) Venue. When the action is brought on the privity of contract, the venue is transitory; when it is brought on the privity of estate, local. Therefore where the action is brought by the lessor against the lessee, or against the executor of the lessee, charging him in the debet as executor, the venue is transitory (i), but where the action is brought by the lessor against the assignee of the lessee, (a) 1 Rol. Ab. 603. (S.) Fruen v. Porter, 1 Sid. $79. 1 Saund. 1, note, 5th edit. (b) Aylmer v. Hide, M. 1S G. 2, B.R. MS. Selw. N. P. 577, 4th edit. (c) Hargrave's case, 5 Rep. 31. 1 (d) Buckley v. Pirk, 1 Salk. 317. Ipswich v. Martin, Cro. Jac. 411. (f) Billinghurst v. Spearman, 1 Salk. 297. Buckley v. Pirk, 1 Salk. 317. (g) Salter v. Cobbold, 3 Lev. 74. (k) Helier v. Casebert, 1 Lev. 127. 1 Sid. 266, S. C. Billinghurst v. Spearman, 1 Salk. 297. Howse v. Webster, Yelv. 103. (i) Patterson v. Scott, 2 Str. 776, 1 Saund. 241, note, 5th edit. King ▼ . Fraser, 6 East, 353, tion. or against the executor of lessee, charging him as assignee in the Of the declara. debet and detinet for rent incurred in his own time, the action is local, and must be brought in the county where the land lies; and so where it is brought by the assignee of the reversion against the lessee or the assignee of the lessee, for in all these cases the action is founded on the privity of estate. (a) Where the action is local, and is brought and tried in the wrong county, the defect is aided after verdict by statute 16 & 17, C. 2, c. 8, and therefore if the defendant intends to take advantage of the wrong venue, he should demur. (b) And if the parcels are not set out in the declaration, the defendant must crave oyer of the indenture, and set it out before he can demur. (c) Debt by an executor or administrator of tenant in fee, &c. for rent services, &c. under statute, 32 Hen. 8, c. 37, is local. (d) It is a general rule that whenever an action is founded on a deed, such deed must be declared on, but the case of rent reserved by deed is an exception. (e) In debt for rent it is not necessary to state that the demise was by indenture, but it is sufficient to say generally that the lessor demised the premises for a certain term, though by this mode of declaring the defendant will be at liberty to plead nil habuit in tenementis, because no estoppel appears upon the record, and the plaintiff in such case will be compelled to reply that the demise was by indenture, whereas, had he stated that fact in his declaration, he might have demurred to the plea of nil habuit in tenementis. (f) But where the lease is of tithes which lie in grant, and can only pass by deed, the deed should be set out in the declaration. (g) The demise may be stated according to its legal effect, and therefore where it was alleged that the plaintiff had demised to the defendant three rooms, and it appeared in evidence that the demise was of three rooms, and the use of the furniture, it was (a) Walker's case, 3 Rep. 22. Barker v. Damer, 3 Mod. 358. Carth. 182, S. C. Wey v. Yally, 6 Mod. 194. 2 Salk. 651, S. C. Stevenson v. Lambard, 2 East, 580. 1 Saund. 241, d, note, 5th edit. but covenant by assignee of reversion, is transitory, ante, p. 451. (b) Mayor of London v. Cole, 7 T. R. 583,588. Bailiffs of Litchfield v. Slater, Willes, 431. (c) 1 Sannd. 246, d, new notes. (e) Atty v. Parish, 1 Bos. and Pul. (ƒ) Warren v. Consett, 2 Ld. Raym. 1503. 1 Saund. 276, a, note, 325, a, note 4, 5th edit. Com. Dig. Pleader, (2 W. 48), ante, p. 459 ; post, p. 474. (g) 2 Saund. 297, note 1, 5th edit. Statement of demise. |