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man v. Legge, 8 B. & C. 324 ; 2 M. & R. 438 — that the plea shows a surrender by act and operation of law, we think the plea is bad, on special demurrer, as amounting only to an argumentative denial that any breach had been committed during the continuance of the tenancy."

Judgment for the plaintiff. T. Jones, in support of the demurrer. Peacock, contra.

M’LOUGHLIN v. CRAIG,
QUEEN'S BENCH, IN IRELAND. 1856.

[Reported 7 Ir. C. L. 117.) The summons and plaint claimed a sum of £150 for one and a half year's rent due out of certain premises demised by the plaintiffs and others deceased, to one William Boyd, on the 15th of July, 1833, for a term of three lives still subsisting, and renewable forever; which premises, it was alleged in the plaint, had vested in the defendant by assignment, and that since said assignment the said sum of £150 had accrued due.

To this the defendant pleaded as to £75, part of said sum of £150, that before and at the time of making the said indenture of 15th July, 1833, one Matilda M'Loughlin was by herself and her under-tenants, and still is, in possession of a portion of said premises in plaint mentioned ; and that being so in possession, the plaintiffs and William Boyd in his lifetime instituted proceedings in ejectment against the said Matilda M'Loughlin, for recovery of said portion, and that Matilda M'Loughlin had recovered judgment in said ejectment against the plaintiffs and William Boyd, and before any portion of said sum of £75 became due, and has since retained and continued in possession of the said portion of the premises ; and that, by reason thereof, the said William Boyd in his lifetime, and the defendant since his death, and from thence and before the time of the accruing of said sum of £75, were kept out of the possession and enjoyment of said portion of the premises, and neither he nor the said William Boyd had, since making said indenture, or since said judgment in ejectment, any use, possession, or enjoyment of the said portion. To this defence the plaintiff demurred.

Mackay (with him T. O'Hagan), in support of the demurrer.
Concannon and D. Lynch, contra.

LEFROY, C. J. In this case we are of opinion that this demurrer must be overruled. It is plain that, upon an eviction by title paramount, the lessee may either give up the lease or hold the part of which he remains in possession, at an apportioned rent. That is well settled. Then the question in this case is, Are the matters stated on the defence, by which the defendant says he was disabled from getting possession of

1 The rest of the opinion, relating to another point, is omitted.

sa

ments of title ; had nothing

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a portion of the lands, equivalent to an eviction by title paramount; that is, has enough been shown to satisfy the court that the lessee was prevented, by title paramount in Matilda M'Loughlin, from getting possession of the entire of the land demised by the lease? The defence alleges that Matilda M'Loughlin was in possession of part of the premises previous to the lease being made; and that she continued in possession up to and after the making of the lease ; and that subsequently

yectment was brought by the lessor and lessee in that lease, and at they failed to disturb her possession. It must be assumed that she

ed title against both parties, against the lessor antecedent to the , and against lessor and lessce after the lease ; and that ever since, "g the accrual of the rent, she continued in possession. The quesben is, whether that is a substantial averment of matters whence deduces what may be called a presumptio juris, that, de jure,

in possession by title paramount? When the landlord made case, he must have known in what condition the property stood at me he let it; it was his duty not to make a lease to a stranger, what he had to demise ; a stranger could not know that Matilda lin was in possession by title paramount. He had no muniTitle ; had nothing to do with the land before the lease was him. The lease imports that the title went with the possesere is no recital in it of any outstanding lease, or that there

in reversion. It was incumbent on the landlord, therefore, when he se

seeks to enforce the entire rent, to show his right, to establish

da M'Loughlin was in possession as a sub-lessee, or in some way under bi

r him; whereas it is averred, in the defence, that the lessee

any benefit or enjoyment under the lease of the portion of ses in question. If anything were shown to establish that a been received for this portion from Matilda M'Loughlin, by

lant getting the reversion to which that rent was incident, Hd not be inconsistent with the right of the landlord to recover

rent; but that averment ought to have come from the plain

defence amounts in substance to an eviction by title paraand as in such case the lessee is entitled to hold the remaining

the premises, paying a proportionate part of the entire rent, don all, so here the defendant is entitled to a similar election. Urrer, therefore, must be overruled. TON, J. I do not dissent from the judgment pronounced by

Chief Justice, although I feel some difficulty on the points 1. It has never been decided that the position of a lessee,

Tease at an entire rent from a landlord, who had power to portion only of the thing demised, not having power to demise de, is equivalent to an eviction by title paramount. I do not at has yet been decided, although the case cited, of Doe v. comes near it. A party there made an underlease of premises, T of which he had a power, and over another portion of which Do power. It was held in that case that there must be an

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never had any benefit or en the premises in question. rent had been received the defendant getting that would not be inconsistent w the entire rent; but tiff. This defence amount mount; and as in such cas portion of the premis or to abandon all, so This demurrer, the

CRAMPTON, J. my Lord Chief Justice, suggested. It has never be

taking a lease at demise a portion the residue, is eg think that has Meyler, comes, over part of which he had no po

apportionment, and that the tenant must pay the apportioned rent for the portion the landlord had power to demise. There is another question on which I also have some difficulty; that is, as to the meaning of that portion of the plea which alleges a possession in Matilda M'Loughlin, and nothing more. It is consistent with that plea that Matilda M'Loughlin may have been in a temporary possession, or she may have been a tenant of the lessor; and if that were so, the whole rent is payable to the landlord, and there is no apportionment. It is said, however, that there are statements in the plea contradictory of the presumption that Matilda M'Loughlin was in as tenant to the lessor. I feel some difficulty on these two points ; but if the landlord allege she had only a temporary interest, the court will not prevent his now replying that matter, upon payment of the costs of the demurrer. PERRIN and MOORE, JJ., concurred with the Chief Justice.

Demurrer overruled.

ECCLESIASTICAL COMMISSIONERS v. O'CONNOR.

QUEEN'S BENCH IN IRELAND. 1858.

(Reported 9 Ir. C. L. 242.] ACTION to recover three half-yearly gales of rent reserved by an indenture of demise dated the 24th of April, 1846, whereby the plaintiff's demised to the defendant a certain messuage, lands, and premises, with the appurtenances, for three lives, and a concurrent term of 999 years, at the yearly rent of £400, payable half-yearly. The first defence alleged that, prior to the making the demise in the plaint mentioned, the plaintiffs had demised two roods, parcel of said demised premises, to Captain Wynder, which prior demise was still in force, whereby the defendant was kept out of possession of said parcel of the demised premises, although always desirous of entering thereon, whereof the plaintiffs had due notice ; whereby the defendant was prevented from having all the profit and advantage he otherwise would have thereout. The second defence alleged a prior demise, still in force, of two roods of land, parcel of the demised premises, to one Patrick Murray and one Timothy Murray, and in other respects was in the same terms as the first defence.

Demurrer to the first defence, upon the following grounds: Be. cause the said defence does not disclose any matter whereby the demise made by the plaintiffs to the defendant, as in the summons and plaint alleged, is shown to have been, wholly or as to any part of the prem. ises thereby purporting to be demised, void or ineffectual, or whereby the rent reserved became or was wholly or in part extinguished or suspended ; and because the said demise made by the plaintiffs to the defendant, as in the said summons and plaint alleged, was effectual to

pass the reversion of the said parcel of the said demised premises occupied by the said Captain Wynder; and because the said defence is pleaded to the whole of the said first cause of action, although, at best, only an answer to part thereof; and because it does not appear that the said Captain Wynder has, or ever had, any greater estate or interest in the said parcel of the said demised premises than that of tenant rom year to year; and because it does not appear that the said de

dant ever gave a proper and legal notice to quit to the said Captain ynder, or otherwise used legal means to determine his tenancy; and

Cause it is not shown by the said defence what estate or interest the sara captain Wynder has or had in the said parcel of the said demised Poses; and because it is not alleged by the said defence that the

etendant is not in receipt of the rent payable by the said Captain ter in respect of the said parcel of the said demised premises ; ecause, consistently with the said defence, the said Captain Wynay have always been, and still be, in occupation of the said par

the said demised premises, by the consent or default of the

defendant himself.

is not a good answ tainly be a very stran here presented to us, that because two possession of an unde

duly reserved and iu

grounds of demurrer to the second defence were in similar terms se of the first defence, substituting the names of Patrick and my Murray for that of Captain Wynder.

erstone (with him T. Lefroy), for the demurrer. Morris (with him G. Fitzgibbon), contra. ROY, C. J. We are all very clearly of opinion that this defence i good answer to the claim for the whole rent. It would cer

a very strange state of the law if, upon the facts which are ented to us, we were compelled to hold it to be a legal defence, ause two roods of the demised premises were lawfully in the on of an under-tenant at the date of the demise, that circum"S to operate as a suspension of the entire rent of £400 a year,

rved and fully secured by sufficient covenants. We were, howore that such was the law, as settled by the case of Neale v.

le. But it turns out that the case of Neale v. Mackenzie, inbeing an authority in support of the present defence, is, for reasons given by Lord Denman, when delivering the judgment ourt of Exchequer Chamber, an authority for upholding this "; for the distinction there taken was, that the second lease,

the defendant in error, was utterly yoid, inasmuch as, with Lo eight acres, part of the demised premises, no interest at all O the lessee, — not even a reversion, which can only be granted under seal; whereas the second lease in that case was not

Mackenzie. But it stead of being an a the very reasons gi of the Court of 5 demurrer ; for the made by the defendan respect to eight acres, part of t passed to the lessee, by deed under s

i The points close any matter been wholly or in pat secondly, that the an answer to part demurrer to the se

points noted for argument were, first, that the said defence does not disMatter whereby the said demise in the plaint mentioned is shown to have ly or in part void, or the rent wholly or in part extinguished or suspended ; that the said defence is pleaded to the whole rent, although at best only

to part thereof, and the points in the body of the demurrer. The points of to the second defence were precisely similar. – REP.

VOL. 11. – 47

under seal. In the present case, however, it appears that the plaintiffs, who were seised of these lands, and made this lease, were, at the time of this demise, in possession of the great body of the property ; but about two roods of it (taking the facts from the pleadings) were then in the possession of some one else, under a former lease. As to these two roods, therefore, the plaintiffs had nothing but a reversion. Under these circumstances, the plaintiffs demise the entire premises by a lease under seal, reserving an entire rent for the whole. The first question then is, What was the operation of that instrument? It was a lease in possession of all the land of which the lessors had the possession at the time of the demise; and, in point of law, it was a lease of the reversion of that part of the lands of which the lessors had not the possession. Where a person has only a reversion expectant on a lease, with a rent incident thereto, he may make a lease by deed of that reversion for any term, and reserve a rent thereout; he may deal with it as if it were an interest in possession, and he cannot be said not to have a title to such rent. He cannot, it is true, recover it by ejectment, and there may be a difficulty in the way of his distraining for it; but he can recover it either by an action upon express covenant, or by an action of debt upon the implied contract which arises upon the deed between the parties. Are we to be told then that an action for the entire rent will not lie? I am happy to find that the law, so far back as I have been able to trace it, still continues to be unchanged in this respect, and that the reasons assigned by Lord Denman, in pronouncing the judgment of the Exchequer Chamber, in Neale v. Mackenzie, the case which was said to have interfered with the law as I have stated it, were, on the contrary, in perfect harmony with it, established, as it has been, by the high authority of Chief Baron Gilbert, unaffected by any subsequent case. Upon these grounds, therefore, we feel quite authorized in maintaining that state of the law which is consistent as well with common-sense and justice, as with an uninterrupted current of legal authority down to the present time. We, therefore, allow the demurrer.?

PENDLETON v. DYETT.
SUPREME COURT OF NEW YORK. 1825.

[Reported 4 Cowen, 581.] COVENANT for rent upon a lease dated October 15th, 1818, given by the plaintiff to the defendant, for the term of two, three, five, or eight years, but not for a less term than two years, of two rooms, or the whole of the second floor, and two rooms chosen by the defendant ou

1 Williams v. Hayward, 1 E. & E. 1040 (1859), which comes here in chronologica order at the end of the English cases, is printed ante, p. 700. Cf. Blair V. Cu N. Y. 529 (1859).

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