M. T. 1864. THE IRISH v. TYRRELL.. Nov. 4. J. P. Hamilton Cited Co. Litt., 43 b, s. 58; Cole on Ejectment, pp., 213–215; Byrne and Brewster Bayley v. Bradley (i); Trevivan v. Walton v. Taylor v. Leathem (n); Ashby (q); Stephenson v. Lambert (r) ; Dowse, in reply, Cited Co. Litt., 229 a.; 3 Chitty's Pr. Pl., 5th ed., p. 1144; Bacon's Abr., O, p. 854; Roberts v. Snell (w); Taylor v. Needham (x); Mercer v. O'Reilly (y); Upton v. Townsend (z). The Court having suggested certain amendments in the pleadings, and, amongst them, either that the defendant should amend his defence by introducing a distinct averment that the lands out of which he alleged he had been evicted were exclusive of the 200 acres mentioned in the lease, and of the one-tenths and compensation lands; or, that the plaintiff should by replication identify the last-mentioned lands with those out of which the eviction took place; and also, that the plaintiff should amend his replication by introducing an averrment that the indenture of lease had been executed by both parties; and the amendments having been madeOn this day the case came on for re-argument on the amended pleadings. M. T. 1864. THE IRISH V. H. T. 1865. J. P. Hamilton. The replication is bad, on two grounds; first, because the lessees would not have been estopped from pleading this defence; and secondly, admitting that they would, the estoppel does not run against the defendant, their assignee. On the first point-this is not a base plea of nil habuit in tenementis, but that plea along with an averment that the plaintiff never got into possession of a portion of the demised premises. It is admitted that if a tenant go into possession of lands under an indenture of lease, he cannot, so long as he remains in the possession and enjoyment of the demised lands, plead nil habuit in tenementis. But the possession and enjoyment of the lands professed to be demised is essential to constitute the estoppel. In Co. Litt., 43 b., s. 58, in the text of Littleton, it is said :— "Tenant for terme of yeares is where a man letteth lands or tene"ments to another for terme of certaine yeares, after the number "of yeares that is accorded between the lessor and the lessee. "And when the lessee entereth by force of the lease, then is he "tenant for terme of yeares; and if the lessor in such case reserve "to him a yearely rent upon such lease, he may chuse for to "distraine for the rent in the tenements letten, or else he may "have an action of debt for the arrerages against the lessee. "But in such case it behoveth, that the lessor be seised in the 'same tenements at the time of his lease; for it is a good plee "for the lessee to say, that the lessor had nothing in the tenements "at the time of the lease, except the lease he made by deed 66 Common Pleas. THE IRISH SOCIETY บ. H. T. 1865. "indented, in which case such plee lieth not for the lessee to "plead." It is to be observed that this passage, which has been cited by every Text-writer since the time of Littleton, as an authority for the general rule that a tenant shall not be allowed to deny his landlord's title, is prefaced by the words, " and when the lessee entereth by force of the lease," which qualify the whole section. TYRRELL. In Cuthbertson v. Irving (a), at page 757, Martin, B., observing on Sergeant Williams's note to Walton v. Waterhouse (b), says:— "We adopt this note as the right statement of the law; and in that "the following propositions may be laid down :-First, if any estate "or interest passes from the lessor, or the real title is shown upon "the face of the lease, there is no estoppel at all. Secondly, if the "lessor have no title, and the lessee be evicted by him who has title "paramount, the lessee can plead this, and establish a defence to "any action brought against him: Doe d. Higginbotham v. Bar"ton (c); but, thirdly, so long as the lessee continues in possession "under the lease, the law will not permit him to set up any defence "founded upon the fact that the lessor 'nil habuit in tenementis.” Again, Tyrrell is the assignee of the lessees Dimsdale and Robinson, and therefore cannot be estopped by a deed he never executed. It is admitted that he would be estopped if the lessees had got into possession; for estoppels run with the land. But here, the lessees never got the possession of the portions of the slob-lands mentioned in the defence: Stronghill v. Buck (d); Hayne v. Maltby (e); Co. Litt., 352 b. On the question of estoppel he also cited Right d. Jeffreys v. Bucknell (f); Doe d. Strode v. Seaton (g); Noke v. Auder (h); Furlong's Landlord and Tenant, p. 439; Stevenson v. Lambard (i). If the defendant then be not estopped from pleading this defence, the next question is, whether it is a good answer to the summons and plaint? and it is submitted it is; whether the result of the facts stated in it be that the rent is suspended or apportionable-in other words, whether the facts amount to an eviction by title paramount, or not. If the rent be suspended, the plea is good, no rent being due; and, if it is apportionable, it is equally good; for to support an ejectment under the Ejectment Statutes, there must be a rent cer In Lessee Swift v. Allanson (a) the action was an ejectment for non-payment of rent; and the rent being a lump rent, and there having been an eviction of the tenant from part of the lands by title paramount, the question was, whether the action would lie? and Brady, C. B., says: "How could the tenant lodge money in Court, or how could he know how much to lodge? or how could "the landlord, in case of judgment by default, swear to any specific, 64 or conscientiously swear to any precise sum as due? or, if a land"lord claimed too much, how could the Court set it right? This "showed that the Legislature never intended that the statutes "should apply to such a case." In Bacon's Abridgment (Rent), M, 3, the mode of apportioning the rent is given :-" This may be "done upon a plea of nil debet pleaded by the tenant, because when "issue is joined on such a plea, it is the business of the jury to "determine whether anything, and how much, is due; and this "is done with regard to the real value of the land remaining in "his hands, and not with regard to the quantity of it." But, whatever be the proper method of ascertaining the rent, it is clear that it cannot be done in an action of ejectment; and the course which the plaintiffs should have adopted was, first, to ascertain the rent, and then to bring an ejectment for non-payment of the rent so ascertained: Daniel v. Grace (b). If the rent be apportionable, it lies on the plaintiffs to plead the facts raising the apportionment: Roberts v. Snell (c). But it is submitted that this is not a case of apportionment at all; that the facts pleaded are not equivalent to an eviction by title paramount, and that the case is governed by Neale v. M'Kenzie (d). (b) 6 Q. B. 145. (a) Batty, 326, n. H. T. 1865. THE IRISH v. TYRRELL. Common Pleas. THE IRISH TYRRELL. H. T. 1865. In that case the action was for trespass quare clausum fregit; and the defendant pleaded, in substance, that the trespass was committed in making a distress for a half-year's rent then due. The plaintiff replied, admitting that he had accepted the lease, and entered under it; but stating that, at the time of the demise, one Adam Charlton was in possession of eight acres, part of the demised premises, under a prior lease from the defendant, which continued and was in force until after the time when the half-year's rent was due; and that during the whole of that time he was kept out of the possession of that part by Adam Charlton-(precisely the facts of the present case). To that replication the defendant rejoined that the plaintiff had notice of Charlton's lease at the time of his entry upon the demised premises. To that rejoinder a demurrer was taken; but the real question was, whether the replication was a good answer to the defence? The case, in the first instance, came before the Court of Exchequer. That Court held, first, that the lessee had an interesse termini in the eight acres demised to Charlton; secondly, that the facts stated in the replication were equivalent to an eviction by title paramount, and, consequently, that the rent was apportionable; and, thirdly, that you could distrain for an apportioned rent. The case afterwards went on appeal to the Exchequer Chamber, where the decision of the Court of Exchequer was reversed; and the report will be found in 1 M. & W., p. 747. The judgment of the Court was delivered by Lord Denman, C. J. It was held, in the first place, that an interesse termini in the eight acres did not pass to the plaintiff, but that the lease was wholly void quoad that portion; and, secondly, that the facts of the case did not constitute an eviction by title paramount; and Lord Denman, at page 758, says :-"But we are of opinion that "the impediment to the plaintiff's taking possession in this case "is not analogous to an eviction; for it appears to us that no "interest in the eight acres previously demised to Adam Charlton "passed to the plaintiff by the demise subsequently made to him. "The demise to Adam Charlton covered the whole time during "which the rent distrained for accrued." Then, after showing that no rent in respect of the eight acres had ever come into existence, |