to consider, what the mischief was before the act, and what remedy is provided at common law. If tenant for life, or any who had a determinable estate, died but a day before the rent reserved on a lease of his became due, the rent was lost: for no one was entitled to recover it. His representatives could not, because they could only bring an action for the use and occupation; and that would not lie where there was a lease, but debt or covenant: nor could the remainder-man, because it did not accrue in his time. Now this act appoints the apportioning the rent, and gives the remedy. But there are two descriptions of persons to whose executors the remedy is given; in the preamble, it is one having only an estate for life; in the enacting part it is, tenant for life. Now tenant in tail comes expressly within the mischief. I do not know how the judges at com. man law construe it, but I should be inclined in this court to extend it to them. I should make no doubt, were this the case of tenant in tail after possibility of issue extinct; for he is considered in many respects as tenant for life only: he cannot suffer a recovery; he may be enjoined from committing waste, such as hurts the inheritance, as felling timber; though not for committing common waste, being considered as to that as tenant in tail. Were it the case of tenant for years determinable on lives, he certainly must be included within the Act, though it says only tenant for life; it would be playing with the words to say otherwise. These cases shew the necessity of construing this Act beyond the words. Tenant in tail has certainly a larger estate than a mere tenant for life; for he has the inheritance in him, and may, when he pleases, turn it into a fee; but if he does not, at the instant of his death he has but an interest for life. Such too is the case of a wife tenant in tail ex provisione mariti. Upon this point I give no absolute opinion. As to the equity arising from the statute, I know no better rule than this, equitas sequitur legem. Where equity finds a rule of law agreeable to conscience, it pursues the sense of it to analogous cases. If it does so as to the maxims of the common law, why not as to the reasons of Acts of Parliament? nay, it has actually done so, on the statute of forcible entry; upon which this court grounds bills, not only to remove the force, but to quiet the possession. That Act requires a legal estate in possession; this court extends the reason to equitable in interest. But I ground my opinion in this case upon the tenant's having submitted to pay the He has held himself bound in conscience to pay it for the use and occupation of the land the last half year. He paid it to the defendant, which he was not bound to do in law and in such case, the person he pays it to shall be accountable, and considered as receiving it for those who are in equity entitled to it. The division must be that prescribed by the statute; and then the plaintiff is en rent. : titled to such a proportion of the rent as accrued during the testator's life-time. And accordingly it was decreed (a). So, rent paid to the receivers by tenants holding under demises determinable upon the decease of tenant in tail, who died without issue, was afterwards apportioned between the representative and the remainder-man. But in this case the Lord Chancellor Thurlow observed that the case of Paget and Gee (a) seemed rather to be a decision what the statute ought to have done, than what it had done: but that the question here seemed to turn on another ground, that the tenant holding from year to year, or from period to period, from a guardian without lease or covenant, cannot be allowed to raise an implication in his own favour that he should hold without paying any rent to any body (b). Thus, by the statute 11 G. 2. rent is apportionable where it has accrued on a lease determinable on the life of the tenant for life. Still however the rigid rule of law obtains as before the statute, where the estate does not so terminate, but continues notwithstanding the death of tenant for life, as where it is under a power, or by licence of the lord (if a copyhold,) or not pursuant to the enabling statute 32 H. 8. in case of a tenant in tail; so that in either of these cases if the party die at any time before the accruing rent has become payable, his representatives and his creditors lose every benefit which they would have derived from his estate; and the rent goes to the reversioner. Such being the case, we would recommend the parties concerned to attend to the suggestion of Lord Chancellor Cowper, who observed that the gift in law of the rent, which the lessee of tenant for life obtained previous to the statute, by the death of the tenant for life in the middle of a half year, might be guarded against by preserving the rent weekly (c). Quit rent will not be apportioned as between tenant for life and remainder-man (d). If lessee for years of land, rendering rent, accept a new lease from the lessor of part of the land, which is a surrender of this part, the rent shall be apportioned; for this comes by the act of the parties (e). If a man lease three acres for life or years rendering rent and after grant the reversion of one acre, the rent shall be apportioned (ƒ). A lease was made of land and a flock of sheep, rendering rent. All the sheep died. Several justices and serjeants were of opinion that the rent was apportionable and many others that it was not; but all thought that it was equitable and reasonable to apportion it; and (a) Paget v. Gee. Ambl. 198. (b) Vernon v. Vernon. 2 Br. R. 659. (6) Moratta v. Murgatroyd. 1 P. Wms. 392. (d) Sutton v. Chaplin. 10 Vez. 66. 12.) (f) Ibid. (B. 7.) afterwards the case was argued in the reading of Moore the Lent following, and it seemed to him and to four justices that the rent should be apportioned, inasmuch as no default was in the lessee (a). If a man being seised in fee of Blackacre, and possessed for twenty years of Whitacre, lease both for ten years, rendering rent, and die, by which the reversion of one acre comes to his heir, and the other acre to his executor, the rent, it seems, shall be apportioned, because it happens by act of law (b). When a man leases lands of which he is seised in fee, and lands of which he is seised for life at one entire rent, the rent may be apportioned after his death for the lands of which he was so seised in fee. A lessee who grants or assigns part of his estate is, notwithstanding, liable on his covenant to pay the entire rent, for he cannot apportion it; the action as between the lessor and lessee being personal and upon a mere privity of contract, and on that account transitory, as any other personal contract is (c). But covenant lies against the assignee of the lessee of an estate for a part of the rent; as in such cases it is properly a real contract in respect of the land, and is local in its nature, and not transitory; and in case of eviction, the rent may be apportioned as in debt or replevin (c). Where a man seised in fee of a manor holden in moieties by socage, and knight's service (since abolished), and of a parsonage appropriate, leased them for an entire rent, and on his death, devised the manor for life, remainder in tail; it was held that the remainderman, on a surrender to him of the estate for life, might distrain on the lessee for an appointment of the rent; and that a bat to his avowry must shew the value of all the premises, and answer the rate of the apportionment. So, on an avowry for an estate rent, if the plaintiff plead eviction of part of the land by elder title, he must shew how much in value was evicted and how the rent ought to be apportioned (d). But a lessee, who is evicted in consequence of a statute acknowledged by a former owner of the estate, cannot be sued by his lessor for an apportionment of the rent (é). So, if I lease lands, reserving 20/. rent yearly, and at the end of three quarters be evicted, the lessor shall have no rent; for rent shall never be apportioned in respect of time, for being one contract and one debt it cannot be divided, and annua nec debitum judex non (a) Vin. Abr. tit. Apportionment. (C. 1o.) | Hatch. Doug. 186. Stevenson v. Lambard. (b) Ibid. (D. 3.) 2 East. 575. (c) Broom v. Hore. Cro. Eliz. 633. Ards v. Watkin. Cro. Eliz. 637. Holford v. (d) Ewer v. Moyle. Cro. Eliz. 771. separat (a). Where there are two parceners, and one will take advantage of a forfeiture, and the other not, there must be an apportionment (b). For by entry into any part of the premises demised, the rent is suspended. But if the lessor enter by virtue of a power reserved, or even as a mere trespasser, if the lessee be not evicted, it will be no suspension of the rent (c). Rent when due.-By the old law, it was demandable and payable before the time of sun-set of the day whereon it was reserved; for anciently the day was accounted to begin only from sun-rising, and to end immediately upon sun-set (d). But Lord Hale held, that although the time of sun-set was the time appointed by the law to demand rent in order to take advantage of a condition of re-entry, and to tender it in order to save a forfeiture, yet the rent is not due until midnight: for if a man seised in feet make a lease for years, rendering rent at the feast of St. John the Baptist, upon condition of re-entry for nonpayment; now the lessor, if he will take advantage of the condition, must demand it at sunset; yet if he die after sun-set, and before midnight, his heir shall have this rent and not his executors, which proves that the rent is not due until the last minute of the natural day (e). A difference, it seems, subsists between the case of a lease made by tenant in fee, or under a power, and that of one made by a bare tenant for life: in the latter case, if the lessor live to the beginning of the rent-day, at which time a voluntary payment of rent may be made, that is sufficient to entitle the executor to the rent, rather than it should be lost; but in the former case, by the death of the lessor before the last instant, the rent will go along with the land to him in the reversion or remainder, because being payable on those days during the term, the lessee has till the last instant to pay his rent, and consequently the lessor dying before it was completely due, his representatives can make no title to it (e). As to the time for the payment of rent; where a time certain is appointed for that purpose, neither agent nor principal is bound to attend at any other time: and if the thing be to be done on a day certain, but no hour of the day is set down wherein the same shall be done; in this case, they must attend such a distance of time before sun-set, that the money may be counted, and the demand should be made on the most notorious part of the premises (f). [See also "Condition to re-enter on non-payment of rent." Post Chap. X. Sect. II.] Cowp. 242. (d) Co. Lit. 302. 2 Bl. Com. 43. (e) Duppa v. Mayo. I Saund. 287. et n. 17. (ƒ) 6 Bac, Abr. 31. SECTION II. Of Taxes. It is a general principal that the occupier of the premises is liable to pay all parliamentary taxes and parochial rates, as respects the rights of the public. Thus the land-tax is not the landlord's tax with respect to the public, though it is as between landlord and tenant. In fact, the land itself, in the hands of the occupier, is the debtor to the public (a): the land-tax, therefore, is primâ facie the tenant's tax, because all the remedies are against him (b). The land-tax differs from the poor's-tax. The landholder who receives the rent is to pay the land-tax; but the poor's-tax is payable by the occupiers. The occupier ought to be rated regularly by name: therefore when some particular person cannot be fixed upon who may be properly rated as occupier, it follows as a necessary consequence, that no rate can at all be made upon the premises (c). The land-tax acts, from the 4th of W. & M. c. 1. s. 13. and the 28th G. 2. c. 2. s. 17. & 35. to the present time, direct the tenant to pay the land-tax in the first instance, and to deduct out of the rent so much of the rate as in respect of the said rent the landlord should and ought to pay and bear: and the landlords both mediate and immediate, according to their respective interests, are required to allow such deductions. Under a covenant, therefore, in a building lease, by the tenant, to pay all the taxes, except the land-tax, the landlord is to pay only the old land-tax, and not the additional land-tax occasioned by the improvement of the estate; for the legislature did not mean that the whole of the land-tax in respect of all the rent should be borne by the original landlord, but each was to make that allowance in proportion to the rent that came to him (d). Upon the same principle A. having granted a building lease to B. at the yearly rent of 71. which estate B. improved and afterwards underlet at 541. per annum, A. was held liable only to pay the landtax in proportion to the old rent (d). So likewise, a landlord, under a covenant in a lease to pay the land-tax, is bound to pay the land-tax in proportion to the quantum of rent only (e). So, on a lease in which rent was reserved, to be paid "without any deduction or abatement whatsoever," it was resolved that as the land-tax act enables the tenant to deduct that tax out of his rent, he has in all cases a right to stop it, unless there is an express agreement to the contrary. (a) Rex v. Mitcham. Doug. 226. n. 65. (c) (d) Hyde v. Hill. 3 T. R. 377. Leman. 2 Stran. 1191. Yoe v. (e) Whitfield v. Brandwood. 2 Stark, 440. |