said testator's at the time of his decease, more than sufficient in value to pay all the debts the said testator owed at the time of his death, and the legacies bequeathed in his said last will and testament; and assented to the said legacy bequeathed to the said S as aforesaid; and thereby became liable, and in consideration thereof, then and there promised the said S, then sole, to pay her the said sum of $, according to the tenor aforesaid of the said bequest. And the plaintiff avers, that the said S arrived to the age of twenty-one years on &c., to wit, at &c., she being then sole, and having at that time never been married; of which the said D, thereafterwards, on the same day, had notice, and was requested to pay the said legacy of &c., to her: yet the said D never paid the same to the said S in her lifetime; nor has he, since her death, ever paid the same to the plaintiff, though alike requested, viz. on &c., at &c., but unjustly refuses so to do. T. PARSONS.

5. Escapes.

(See ante, Case, p. 435, 436.)

By Statute, 1784, chapter 41, section 1, sheriffs are made liable for escapes happening through the insufficiency of a jail, or the negligence of the sheriff or the jailer, to the plaintiff, creditor, &c. By section 3, in case of a negligent escape, if the sheriff or jailer, &c. shall recover the prisoner within three months afterwards &c., he shall be liable for nothing more than the costs of any action that may have been commenced.

1

In Case, for an escape, the plaintiff recovers damages; in Debt, he goes for the whole debt upon which the debtor was committed. Saund. 35, n. 1.

In chapter 97, Revised Statutes of Massachusetts, section 71, the action of Debt for an escape is abolished, in the case of a prisoner arrested or committed on execution in any civ. action, whether the escape be negligent or voluntary. By sec. 72, the creditor in such case may have an action on the case, to recover the damages sustained by him.

In Debt, for an escape, it is necessary to set out the judgment and execution, and the commitment of the defendant thereon. 2 Lev. 390. But it seems unnecessary to set forth how the original debt became due, or the commencement and proceedings on the original action. Lut. 11. It was formerly held not to be sufficient to make a recital of the recovery of judgment, and that it was necessary to allege directly, "that the plaintiff recovered," &c. But it was held otherwise in Cro. Elizabeth, 877, and the latest precedents commence, "for that whereas," &c.

It is recommended always to declare for a voluntary escape; because evidence of a negligent escape will be admitted under it. 2 T. R. 216. And the sheriff will not be allowed to plead a fresh pursuit. Com. Dig. Escape, E. After a voluntary escape, the officer has no right to re

take the prisoner, so that it seems he could not avail himself of the provision, in case of recovering the prisoner, within three months, in the Stat. 1784. Quære.

DECLARATIONS IN Debt for AN ESCAPE.

Against Sheriff for an escape on execution.

For that whereas the plaintiff, by the consideration of the justices of our S. J. C., holden &c., within &c, on &c., recovered judgment against one M M for the sum of $120 damages, and costs of suit, as by the records of said court remaining appears; and afterwards, to wit, on &c., the plaintiff, for the more speedy obtaining thereof, prosecuted out of the clerks office of said court, a certain writ of execution for the same, in due form of law, against the said M M, directed to the sheriff of said county &c., or his deputy, and returnable into said court, on &c.; which said writ afterwards, and before the return thereof, to wit, on &c., was delivered to the said D, then being sheriff of said county of &c., to be executed in due form of law, by virtue of which said writ the said D, so then being sheriff as aforesaid, afterwards, and before the return thereof, to wit, on &c., at &c., took and arrested the said M M, and then and there had him in his custody in execution, for the damages and costs aforesaid, until the said D thereafterwards, to wit, on the same day, then and there being sheriff as aforesaid, permitted the said M M, against the will of the plaintiff, to escape out of his custody and go at large wherever he would, the plaintiff then, and yet, not being satisfied of the said damages and costs; whereby an action hath accrued to the plaintiff to have and demand of the said D, the said sum of $120; yet the said P, though often requested, has not yet paid the same to the plaintiff, but hath wholly refused and still refuses. See 1 Saund. 33; 2 Saund. 98. See the notes in the same

places.

NOTE. By substituting in the beginning of this declaration," in a plea of trespass on the Case," in lieu of," in a plea of Debt," and ending it with the words, "by reason whereof, the plaintiff has wholly lost all benefit of the above recited judgment," &c., instead of those in italics, this will answer for a declaration in Case under the Revised Statutes.

6. For Rents.

In reciting a lease, it is necessary to set it forth accurately, according to its legal effect; a misrecital will be a fatal variance. The declara

tion should show where the lands lie; but it is not necessary to be more particular or certain than the lease itself. 2 Cro. 124; Salk. 562.

Where the lessor sues the lessee, on a lease for years, it is not necessary to allege an entry or occupation of the land demised, for the lessee is bound to pay, whether he enters or not; but if the lessee is merely tenant at will, it is said to be necessary to set forth an entry and occupation, on account of which alone he is chargeable, and how long he occupied. Salk. 209. However, it is held, that Debt will lie for use and occupation generally, without setting forth the particulars of the demise. 6 T. R. 62.

In declaring for rent payable quarterly, &c., the plaintiff may sue for each periodical sum, as soon as it becomes due; but he cannot sue for any part of such periodical sum without showing that the rest is satisfied, or that he has a right to apportion the rent. Where the lessor sues the lessee, he grounds his action on the contract, and the action is transitory, and may be brought in any county that is consistent with statute regulations. But where the lessor sues the assignee of the term, or the executor of the lessee, and where the assignee of the lessor sues the lessee or his assignee, the action is grounded merely on privity of estate, and must be brought in the county where the lands lie. See 1 Wils. 165; 2 Salk. 651; 2 Stra. 776. If the plaintiff sues as assignee of lessor, he should show a good assignment by deed. 3 Lev. 155; Stra. 814; Ld. Ray. 1536; 1 Saund. 112. For here the assignment cannot be good without deed. In strictness, the plaintiff should show expressly what rent is reserved, and when it became due. 1 Salk. 139; Cro. Eliz. 262.

It seems an under lessee cannot be sued in Covenant, nor even in Debt, on the lease, since there is neither privity of contract nor of estate between the original lessor and him, to sustain the action. Cowp. R. 766.

By ch. 60, Rev. Stat. of Mass. sec. 22, "Every person in possession of land, out of which any rent is due, whether it was originally demised in fee, or for any other estate of freehold, or for any term of years, shall be liable for the amount or proportion of rent due from the land in his possession, although it be only a part of what was originally demised." By section 23, such apportioned rent may be recovered in an action of Debt, &c.

It seems, if rent is payable quarterly, but the lessor dies before the quarter expires, even on the morning of quarter day, the rent goes to the heir and not to the executor; there is no apportionment of the rent between them, because the rent is incident to the reversion; neither will the heir be held to account for it, if the estate should prove to be insolvent.

DECLARATIONS IN DEBT FOR RENT.

For rent by deed.

In a plea of debt; for that the plaintiff on &c., demised his dwellinghouse and garden, situate, &c., to the said A [defendant,] to hold and occupy for one year from that time; in consideration whereof, the said A, by his deed, dated &c., at &c., in court to be produced, covenanted to pay to the plaintiff, the sum of $- rent, at

four quarterly payments; whereby the said A, on &c., at &c., became indebted to the plaintiff in the same sum, rent as aforesaid, for the year then ending; yet, &c. W. READ.

For rent on a parol lease, against husband and wife. For that the plaintiff, on &c., at &c., demised to the said B, then sole, and called A B, his shop, &c., situate, &c., to hold for one quarter of a year, and so from quarter to quarter of a year, so long as both parties pleased, paying the plaintiff the sum of $-, rent for every quarter of a year, so long as she should hold the same tenements; by force whereof the said B entered into the tenements aforesaid, and held the same until &c., when the said B and C intermarried; and they have held the same tenements ever since their intermarriage; and the sum of $- for said rent for three quarters of a year, ending &c., was then behind, and due to the plaintiff from the said B and C; yet, &c. R. DANA.

For rent on indenture, by guardian.

To answer to P, guardian of A and B, both of &c., infants, and late guardian of C, of &c., which A, B, and C, are the children of S, late of &c. in a plea of debt; for that the said P, on &c. at &c., being guardian of all said children of the said S, by a certain indenture of that date, made between the said P, guardian as aforesaid, and the said T, one part whereof is in court to be produced, demised, and to farm-let to the said T, all that farm &c., to hold from that time until &c., yielding and paying the said P, at the expiration of said term, the sum of $- for the rent of said tenements during that term of time; by force whereof, the said T entered into the same demised premises, and held the same during the term aforesaid; and at the expiration thereof, there was due to the said P, from the said T, the same sum of $- for the rent of the demised premises; yet, &c.

For rent on a parol lease, to be paid quarterly.

For that the plaintiff, by parol lease, on &c., at &c., demised to the said T, a house and shop, situate in &c., aforesaid, to hold for one quarter of a year then next ensuing, and so from quarter to quarter as long as both parties should agree, yielding and paying the sum of $- for every quarter he

should hold the premises so demised; by force whereof, the said T then entered the premises and held them until &c., when the sum of $-rent became due, and is still in arrear and unpaid; whereby an action hath accrued to the plaintiff, to recover and have the same sum; yet the said T hath never paid the same sum, but owes and unjustly detains it. THACHER.

Another.

For that the plaintiff, on &c., at &c., by a parol lease, demised to the said T, a house and land, situated &c., to hold for one quarter of a year then next ensuing, and so from quarter to quarter as long as the plaintiff and the said T should agree, yielding and paying, at the expiration of every quarter she should hold the premises so demised, the sum of $-; by force whereof the said T then entered into the premises, and held them until the

day of &c., when the sum of $- for the rent of the same became due and still is in arrear and unpaid, whereby an action hath accrued to the plaintiff to recover and have the same sum; yet the said T has never paid the said sum, but owes and unjustly detains the same.

For rent by heir of lessor.

To answer to A B of &c., Esq., son and heir of B B, late of &c., gentleman, deceased, in a plea of debt, for that the said B B, in his lifetime, viz. on &c., at &c., by a certain indenture, then and there made between the said B B of the one part, and the said D of the other part; one part whereof is in court to be produced, the date whereof is the year and day last aforesaid, demised &c., unto the said D, his executors &c., all that &c., to have and to hold &c., unto the said D, his &c., from &c., for and during the full term of years then next ensuing &c., yielding and paying therefor yearly during the said term unto the said B B, his heirs and assigns, the yearly rent of &c., in four equal quarterly payments, on &c., on &c., on &c. and on &c. as by the said indenture may more fully appear; by virtue of which demise, the said D entered into the said demised premises, and was possessed thereof for the term thereof demised as aforesaid, the reversion thereof belonging to the said B B, his heirs and assigns; and being so possessed, and the reversion thereof belonging as aforesaid, he, the said B B, afterwards, viz. on &c., at &c., died seized of