to be considered as the language of Lord Chief Baron Gilbert) as follows: "If one make a lease to A. for ten years, and the same day make a parol lease to B. for ten years of the same lands, this second lease is absolutely void, and can never take effect either as a future interesse termini, or as a reversionary interest, though the first lessee should forfeit or otherwise determine his estate, or though the first lease were on condition, and the condition broken within ten years; neither shall the lessor have the rent reserved upon such second lease, but such second lease is absolutely void, as if none such had been made. The reason whereof is, because the first lease being made for ten years, the lessor during that time had nothing to do with the possession, or to contract with any other for it; and the second lease being made the same day, and for no longer term than the first ten years, would not pass any interest as a future interesse termini certainly; for the first lessee had the whole interest during that time; and his forfeiture or determination of it sooner, which was perfectly contingent and accidental, shall never make good the second lease as a future interesse termini, when at the time of making thereof it was absolutely void for want of a power in the lessor to contract for it; and as a reversionary interest it cannot be good for want of a deed." And a little further on, "But now, if such second lease had been made for twenty years, then it had been good as a future interesse termini for the last ten years, and void for the first ten years for the reasons before given, but for the last ten years it had been good; because, when the first ten years were elapsed, the second lessee might then execute and reduce into possession by entry as well as if it had been at first made in possession; for, it had been good for the whole twenty years if the first lease had not stood in the way, and that can stand in the way no longer than it continues, and therefore, by its termination, lets in the second lease; but, as a grant of the reversion such second lease could not be good for want of a deed, for the reasons before given, neither could any attornment help it or let in the second lease, till the first ten years ran out by effusion of time." And afterwards it is said that if, after a lease for ten years, a second lease by deed poll were made for twenty years, it might take effect with attornment as a grant of the reversion, or, if no attornment could be had, "yet it would inure as a future interesse termini for the last ten years, and would be absolutely void for the first ten years, as much as if it had been made by parol."

It has been remarked that the doctrine here laid down is derived from the argument of counsel in the case of Bracebridge v. Clowse, in Plowd. 421; but it may be answered, that although the matter introduced into Bacon's Abridgment is first distinctly found in the argument set forth at length in Plowden, it now stands upon the authority of Lord Chief Baron Gilbert. Moreover, the point immediately under consideration in this case is confirmed by the opinion of Gawdy, J., in Dove v. Willcot, Cro. Eliz. 160, who says: "If a lease be made for two years, and after the lessor let the land for four years, this is but a

lease for two years, although the first lessee surrender, for he had no power to contract for the first two years at the beginning; but otherwise when the estate is determinable upon an uncertainty;" and cites Plowd. Comment. Smith and Stapleton's Case, which is the case where the argument is fully stated, fo. 432.

It may be remarked also that in Comyns's Digest, title Estates (G. 13), it is said that a lease which cannot take effect in interest, except by possibility, if it be not an estoppel, shall be void; as, if tenant in fee leases by parol to A. for nine years, and the same day to B. for nine years, the lease to B. shall be void. For this he cites Plowden, 432; and though this statement be only part of the language of the apprentice who argued the case of Smith v. Stapleton, Chief Baron Comyns, by introducing it in this general way, must be considered as adopting it in some degree at least as authority; in what is said by Gawdy, as referred to in Cro. Eliz. 160, there is afterwards added Smith v. Stapleton, Plow. 426, though it is not clear whether this be his language or that of the reporter.

This same doctrine, as far as regards a second parol lease for years after a former lease for years, appears to have been treated as clear law in various books; though the effect of such a lease made after a prior lease for life, has been the subject of discussion. See Bro. Abr. Lease, pl. 35, 48; Plowden, 521, note of the reporter. Welchden v. Elkington, Plowd. 521; Plowden's Quæries, 122 and 161; Sir Hugh Cholmondeley's Case, Moore, 344, in the argument of Cook, AttorneyGeneral. So, in Watt v. Maydewell, Hutton, 105: "If a man make a lease for twenty-one years, and after makes a lease for twenty-one years by parol, that is merely void; but if the second lease had been by deed, and he had procured the former lessee to attorn, he shall have the reversion." Edward v. Staler, Hardr. 345, arguendo. So, Sheppard's Touchst. 275 b.: "If the second lease be for the same or a less time, as, if the first lease be for twenty years, and the second lease be for twenty or for ten years, to begin at the same time, these second leases are for the most part void," but if the second lease be by fine, deed indented, or poll, it may pass the reversion with attornment when attornment is necessary, and without, if not necessary. But if the second lease be by word of mouth, it is otherwise. . . . And if the second lease be by fine, or deed indented, then it may work by way of estoppel both against the lessor and the lessee; so that, if the first lease happen by any means, as, by surrender or otherwise, to determine before it be run out, then the second lessee shall have it.”

Upon these authorities, therefore, we feel ourselves obliged to hold that the lease to the plaintiff was utterly void, so far as regarded the eight acres demised to Charlton.

If that be so, we are unable to distinguish the case in principle from that of Gardiner v. Williamson, 2 Barn. & Adolph. 336, where the tithes of a parish, together with a messuage used as a homestead for collecting the tithes, having been demised by parol at a rent of £200

per annum, and a distress made for arrears, the Court of King's Bench held that an action of trespass would lie, because the demise of the tithes, being by parol, was void. There was no valid demise, it was said, of the whole subject-matter, nor any distinct rent reserved for that part of it upon which there might have been a legal distress. That case was the stronger, because it was contended that the whole rent must be taken to be issuable out of the corporeal hereditament, upon which alone a distress could be made. And accordingly, in a case of a lease by indenture, Dyer is reported to have held (Moore, 50), that, if lands at common law and copyhold lands are leased by indenture rendering rent, all the rent is issuing out of the lands at common law; for the lessor had no power to make such a lease of copyhold, wherefore as to this the lease is utterly void; but it is added, that if a man lets lands, parcel of which he is seised of by disseisin, then the rent is issuing out of all the land, and by the entry of the disseisee the rent shall be apportioned, because the lease of this was not void but voidable. In this last case the tenant took an interest, and enjoyed all the lands demised till the time of his being evicted from a parcel thereof by the disseisee, and was therefore liable in respect of such interest and enjoyment to a portion of the rent. In the case before the court, which is not the case of a demise by indenture, the rent is reserved in respect of all the land professed to be demised, and to be issuing out of the whole and every part thereof; and as the plaintiff, as to a portion of the land comprised in the demise (which might be great or small, as far as the principle is concerned), has taken no interest, and had no enjoyment, and is not bound by any estoppel, we are of opinion that the distress made by the defendant is not justifiable, either in respect to the whole rent reserved or any portion of it.

It may further be observed, that even supposing the plaintiff to have taken an interesse termini in the eight acres, capable of being executed by entry in case the demise to Charlton should happen to be forfeited or surrendered, yet, as that demise to Charlton was in force at the commencement of the plaintiff's tenancy, and continued during the whole period, in respect of which the distress has been made, no demise of those eight acres to the plaintiff ever took effect; and, consequently, no right to any rent in respect of those eight acres has ever come into existence. And we are not aware of any case where an entire rent reserved has been held to be apportionable, in which the tenant has not been at some period subject to the entire rent by virtue of the demise. Here, the right of apportionment is not founded upon any eviction, or other matter occurring subsequently to the demise, but upon an original defect in the demise itself by which the entire rent was reserved. In this respect it is strictly analogous to Gardiner v. Williamson.

In the case of Tomlinson v. Day, 5 Moore, 558, which has been referred to, the landlord did not claim an apportioned part of an entire rent, either by avowry for a distress or by action for the rent. It was an action for use and occupation, in which he was allowed to make use

of an agreement for a lease (according to the express provision of the Statute 11 Geo. 2, c. 19, § 14), "as evidence of the quantum of damages to be recovered;" and, as the defendant had been interrupted in the full enjoyment of what had been agreed for, the plaintiff was held "entitled to recover a reasonable compensation for the property enjoyed by the defendant as an equivalent for rent." The interruption to the defendant's right of exclusive sporting was indeed compared by Lord Chief Justice Dallas and Mr. Justice Richardson to an eviction; but, if it was an eviction, it was clearly an eviction by title paramount. The agreement for exclusive sporting was not void on account of the landlord having made a prior agreement to let it to some other person; but it was defeated, because other persons interfered who had a right superior to that of the landlord. Supposing the circumstances, therefore, to amount to an eviction, it would be a case of apportionment according to the acknowledged rule; and would not assist the argument in favor of the defendant.

Upon the whole, therefore, we are of opinion that the judgment of the Court of Exchequer ought to be reversed.

Judgment reversed.1

COLTMAN, J., delivered the judgment of the court.2

This was an action by a landlord against his tenant, founded on a promise to use the demised premises, during the continuance of the tenancy, in a tenant-like manner. The breach alleged, is, that, during the continuance of the tenancy, he used them in so untenant-like a manner that they became ruinous, &c. There was also a count for use and occupation, and there were the money counts.

To the first count of the declaration, the defendant pleaded, — secondly, that the plaintiff, during the continuance of the tenancy, and before any breach, entered into a certain part of the demised premises, to wit, the shed, and ejected, expelled, and put out the defendant from the possession thereof, whereupon the defendant, before any breach, and whilst he was so expelled, &c., wholly quitted, abandoned, and gave up to the plaintiff the residue of the demised premises, and the possession thereof, and the plaintiff has from thenceforward had the same, and the possession thereof.

To this plea the plaintiff demurred, insisting that it amounted only to an argumentative denial of the allegation that a breach was committed during the tenancy.

1 See Tunis v. Grandy, 22 Grat. 109.
2 The pleadings are stated in the opinion.

For the defendant, it was said, that the plea was a good plea in confession and avoidance: for, it was insisted, that, when the plaintiff entered on his tenant, and evicted him from a part of the premises, the tenant was justified in relinquishing the possession of the remainder, and was no longer bound to perform the agreement he had entered into on becoming tenant. But we are of opinion that this proposition cannot

be supported.

An eviction by a landlord of his tenant from a part of the premises, creates a suspension of the entire rent during the continuance of the eviction, until the tenant re-enters and resumes possession: see the authorities cited in 1 Wms. Saund. 204, n. (2). But there is no authority for holding that the tenancy is thereby put an end to, or the tenant discharged from the performance of his covenants, other than the covenant for the payment of rent.

It may be urged, that the landlord may have evicted the tenant from the possession of a part of the demised premises, the possession of which part was the main inducement to him to enter into the covenants of the lease, and therefore that he ought not any longer to be bound by them. But it is to be borne in mind, that, in addition to the suspension of the rent, the lessee may maintain his action against the lessor for the eviction; by which, it is to be presumed that he will obtain satisfaction for any inconvenience or loss which he may suffer.

If the eviction of a part by the landlord will not discharge the tenant from the performance of the covenants of his lease, other than the covenant to pay rent, will the relinquishing the possession of the land, and the landlord's taking possession, have that effect? We think it will not; for the allegations do not show a dissolution of the tenancy by mutual consent. The tenancy, therefore, continues; and whilst the tenancy continues, the obligation to perform the covenants continues.1 We think, therefore, the plea is bad.

The third plea alleges a surrender of the tenancy before any breach, by operation of law, by the defendant's quitting possession of the lands demised, with the consent of the plaintiff, with the intention of putting an end to the tenancy, and by the plaintiff's accepting such possession, with the intention of putting an end to the tenancy.

It was contended, on the part of the plaintiff, that this plea was bad, on the ground that the agreement stated in the plea, would not constitute a surrender by act and operation of law; and that the plea, unless it showed a surrender, furnished no answer to the declaration. And we agree that this is so; for the breach is admitted; and, if the tenancy continued, no answer is given to it.

If, however, it ought to be held - agreeably to what is said in Grim

1 It would appear, therefore, that, where the lessor has evicted the lessee or assignee, or has taken possession with his assent, the lessee or assignee would, under a covenant to repair, be bound to re-enter upon the lessor for the purpose of doing the repairs. It would, of course, be a good answer to an action of covenant for not repairing, to say that the defendant was prevented by the plaintiff from entering. — REP.