Statement of case.

280-293.) Where the landlord ousts the tenant of part he cannot recover rent, but where he re-enters forfeiture, or by special condition for entry into part, then the rent becomes apportioned after the entry. (Mayor, etc., v. Ketchum, 67 How. Pr. 161-165.) The whole lease being an entirety, and each holder of part of the premises being bound to see that the whole rent is paid, the Van Rensselaers credited all payments on account of the lease, and the balance remaining unpaid is the amount of rent in arrears. (Main v. Green, 32 Barb. 448-460.) Apportionment of lands subject to rent charges may take place, but it cannot by any independent act of the lessor. (Van Rensselaer v. Chadwick, 22 N. Y. 32-35.) If an apportionment is to be made, it is probably to be made on the value of the several parts held by each and not by the quantity. (Van Rensselaer v. Gallup, 5 Den. 454.)

William Youmans for respondent. Plaintiff's act, in suing the occupant of the other portion of the lot, and taking judgment and possession against him, of itself is an apportionment of the rent and land. (McAdam's Landlord and Tenant, 344; Gilbert on Rent, 186; Van Rensselaer v. Chadwick, 22 N.Y. 32; Nellis v. Lathrop, 22 Wend. 120; Van Rensselaer v. Bradley, 3 Denio, 135; 5 id. 454; Grissler v. Dudley, 58 N. Y. 323; 3 Kent's Com. [6th ed.] 469.) When a portion of the leasehold estate has been recovered by the landlord, the rent is extinguished pro tanto, to the extent of such recovery. (Blair v. Claxton, 18 N. Y. 533; 8 Bacon's Abridgment, Rent Title, L. [ed. 1846) 515, 517; Vaugh, 199; Pollex, 142.) An assignee of a lease can only be made liable upon an implied covenant, beyond the land occupied by him, and the time he actually occupied. (Astor v. Hoyt, 5 Wend. 603.) By an entry of the lessor into a part of the premises, the whole rent is suspended. He cannot apportion it by a wrongful act. (8 Bacon's Abridgment, 523.) By bringing an action against George Wilson in ejectment, the lessor has elected to declare the lease forfeited, and the tenants are considered trespassers thereafter, and not tenants holding under

Opinion of the Court, per FINCH, J.

the lease. (McAdam on Landlord and Tenant, 189; Stuyvesant v. Davis, 9 Paige, 427; Linden v. Hepburn, 3 Sand. 668; 9 N. Y. Legal Observer, 80.)

FINCH, J. We agree with the General Term in the result which it adjudged, and should adopt its opinion but for its discussion of a subject not necessarily involved in the case, and the soundness or unsoundness of which we ought not to determine in the present action. That opinion intimates that the effect of plaintiff's successful re-entry upon a part of the premises leased in fee may be to extinguish the rent upon the remainder. The defendant, however, makes no such claim, but concedes the plaintiff's right to re-enter upon such remainder for rent in arrear, and the whole controversy is simply what amount of such rent should be stated in the judgment, as the basis of a possible redemption. The case, therefore, proceeds upon the assumption that there is rent in arrear which should be stated in the judgment, and that the amount is either the whole unpaid rent, treating the lease as an entirety, or the proportionate share of the sixty acres and of the ten acres, treating the rent as having been apportioned.

These manor leases have been held to create a rent charge rather than a rent service; and while at common law it was said that a rent charge could not be apportioned because it issued out of the whole land, we have held that such an apportionment is possible by the concurring assent or action of both the landlord and the tenant. (Van Rensselaer v. Hays, 19 N. Y. 76; Van Rensselaer v. Chadwick, 22 id. 34, 35.) And so, the possibility existing, we are concerned only with the facts which are claimed to have effected an apportionment. The plaintiff recovered in ejectment 100 acres of lot 378, which contained the sixty acres additional involved in this action as held under the lease to Martin Tubbs, and the day of redemption has passed. In like manner he recovered and holds the whole of lot 402, except the ten acres owned by the defendant under the lease

Opinion of the Court, per FINCH, J.

to Abbott and Russ, and which ten acres, with the sixty, constitute the lands in controversy. The opinion of the General Term points out very clearly the injustice of a rule which would permit a lessor in fee to have the bulk of the land and at the same time all the rent in arrear, and suggests adequate reasons in support of a different result. The severance of the lease by the landlord in the pursuit of his remedy was preceded by long continued payments by the owners of the parcels in controversy measured by the proportion which their holdings bore to the full quantity of the two lots, and this had continued for many years. These pro rata payments were accepted by the lessor, and although credited, as is said, upon the whole lease as an entirety, do not appear to have been accepted upon that condition. And when that long course of dealing is followed by a re-entry upon a part of the land, leaving the defendant undisturbed in the possession of his seventy acres, it would seem as if a severance of the rent by the act and assent of the landlord was a reasonable and just inference.

But beyond that, the application and operation of the common law has been seriously affected by the statutory provisions for redemption, and those which seem to place it in the power of occupants of separate parcels to compel a severance of the action when the remedy sought is ejectment. It does not here appear that the severance relied upon was by compulsion and against the will of the lessor (Code of Civ. Pro. §§ 1504, 1505, 1507, 1516), and treating it as voluntary and in connection with the actual apportionment made and accepted, we think we are justified in affirming the judgment, without, for the present, going beyond the facts before us. The judgment should be affirmed, with. costs. All concur, except РECKHAM, J., not sitting. Judgment affirmed.

Statement of case.

HELEN J. WRIGHT, Respondent, v. WALTER S. CHURCH, Appellant.

In an action for malicious prosecution, it appeared that a writ of possessiou having been issued to the sheriff upon a judgment in an action of ejectment brought by defendant against N.; that officer, on going to the premises to execute the writ, found plaintiff in possession, claiming title under a deed from a third person, she making no claim under N., and, upon affidavit that she made threats to use violence in resisting the execution of the writ, defendant made application for and obtained a warrant for her arrest under the Code of Criminal Procedure (S$ 84, 90), for the purpose of obtaining surety of the peace. Defendant offered to show that there was no consideration for the deed under which plaintiff claimed, "but that it was a mere scheme or device to defeat the execution." The evidence was excluded. Held, no error. Defendant also offered to prove that there had been frequently, and within a brief period before the occurrence in question, in that section of the country, resistance to the execution of similar writs on the part of those in possession, both men and women, under claim of some superior title, and that such resistance had been carried to the point of killing the officers who were executing the writs. This evidence was excluded. Held, no error.

(Argued June 26, 1888; decided October 2, 1888.)

APPEAL from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made January 26, 1886, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee.

This was an action for malicious prosecution. The evidence and findings of the referee disclose the following facts:

The defendant was assignee of a judgment in ejectment recovered in 1865, on a lease in fee for non-payment of rent, in which judgment Caleb Nelson was defendant. In February, 1883, an order was granted on the application of defendant, giving him leave to issue a writ of possession thereon. Such writ was issued and placed in the hands of a deputy sheriff to be executed. Thereupon and on May 7, 1883, defendant, with the deputy sheriff, went to the premises,

Statement of case.

found the plaintiff in possession, claiming under title hostile to defendant's right, and when informed of their purpose to take possession under the writ, she objected to its execution, and denied that her possession was in any way subservient thereto. An altercation between defendant and the plaintiff, and some of her friends who were present, ensued. The plaintiff denied his right to dispossess her under the writ, and declared her purpose to make resistance if that was attempted. On May ninth defendant made complaint, on oath, before a justice of the peace, charging that the plaintiff threatened to commit an offense against the person of Chamberlain “to wit, to kill, hurt or maim" him, and to do him great bodily harm, and that he had great cause to fear that she would carry such threats into effect. On this complaint he procured a warrant from the justice against the plaintiff and caused her arrest thereunder. She was under arrest several days when the proceeding ended by her discharge. Among other findings of the referee he found that the only threat made by the plaintiff was that of resistance against the execution of the writ against Nelson, and from that threat there was no probable reason to apprehend a breach of the peace or a violation of law; and, further, that the complaint made by the defend, ant against the plaintiff, and the proceeding of the warrant thereon and her arrest and detention thereunder, was willful and malicious and without probable cause.

The further material facts are stated in the opinion.

S.W. Rosendale for appellant. The referee erred in finding that there was malice and want of probable cause, both of which must exist before recovery can be had. (Moak's Underhill on Torts, 163, rule 5.) What amounts to probable cause in this action is a question of law. (Stewart v. Sonneborne, 98 U. S. 187; Fagnan v. Knox, 66 N. Y. 525; Thaule v. Krekeler, 81 id. 428.) Mrs. Nelson herself would have been estopped to deny, as against appellant, Church, her husband's possession. (Finnegan v. Carraher, 47 N. Y. 493.) The proof being clear that appellant acted in this matter, fully