Respecting the venue, it may in addition be observed that, in debt for rent upon a lease, founded on the privity of estate, as when brought by the assignee or devisee of the lessor against the lessee; or by the lessor or his personal representatives, against the assignee of the lessee or against the executor of the lessee, in the debet and detinet, the action is local; and the venue must be laid in the county where the estate lies.-But in debt by the lessor against the lessee, or his executor in the detinet only, the action is transitory, and the venue may be laid in any county. In debt for rent, not setting forth in what parish the lands were situate, the particulars of demand described them in a wrong parish; yet it was held that the plaintiff might recover, it not appearing that any misrepresentation was intended, or that the defendant held more that one parcel of land of the plaintiff, so as to be misled by it (a). The Pleas.-The pleas to an action of debt for rent reserved on a lease by deed are, 1. Nil debet; 2. Non est factum; 3. Riens in arrière; 4. Entry and eviction; 5. Infancy. Wherever the debt is founded on the deed, the plea cannot contradict it but there is a difference where the specialty is but an inducement to the action and matter of fact is the foundation of it, for there nil debet is a good plea: as in debt for rent by indenture, for the plaintiff need not set out the indenture. Therefore the indenture may plead nil debet to rent reserved by indenture, which he could not do in the case of a bond; because an indenture of lease does not acknowledge an absolute debt as a bond does, for the debt arises from the enjoyment of the thing demised, and so the indenture is but inducement (b). Nil debet is a good plea in debt for rent on a lease by indenture, for the foundation of the action is a mere fact, namely, the arrears of rent, and the indenture is held to be only inducement, which the plaintiff need not set out in his declaration (c). But, though the defendant may plead nil debet, he cannot give in evidence under it, that the plaintiff had nothing in the tenements (e). Though in debt for rent on a demise by indenture, it is not necessary to declare that it was by indenture, but "quod cum dimisisset" generally is sufficient; yet if the defendant plead nil habuit in tenementis, it is said to be primâ facie a good plea, because no estoppel appears upon the record (d); and if the plaintiff reply that he had (a) Davies v. Edwards. 3 M. & S. 380. (6) Warren v. Consett. 2 Ld. Raym. 15001503. Esp. N. P. 233. (c) Dean and Chapter of Windsor v. Gover. 2 Saund. 297. n. I. (d) Palmer v. Ekins. 2 Ld. Raym. 1551. Kemp. v. Goodal. 1 Salk. 277. Wilkins v. Wingate. 6 T. R. 62. Parker v. Manning. 7 T. R. 537. Trivivan v. Lawrence. 6 Mod. 256-8. S. C. 2 Ld. Raym. 1048, 1054. Duppa v. Mayo. 1 Saund. 276. n. 1. Bull. N. P. 170. a sufficient estate to make the demise, he loses the benefit of the estoppel, and as he will not rely thereon, but will reply habuit, the jury shall find the truth; but if he reply (as he ought to do) that the demise was by indenture, and concludes unde petit judicium, if the defendant shall be admitted to plead the plea against his own acceptance of the lease by indenture, the defendant shall be stopped (a). But where the declaration states the lease to be by indenture, the plaintiff need not reply the estoppel, but may demur, because the estoppel appears on the record: otherwise, as is before mentioned, if the declaration be “quod cum dimisisset," without saying that it was by indenture (a). In debt on bond conditioned for the payment of rent reserved upon a demise according to certain articles, the defendant is estopped to say, that he had not any thing in the land demised by the articles (b). Nil habuit in tenementis has been held to be a good plea on demise by deed poll, because, as to the lessee, it is no estoppel. It seems indeed settled that it is not admitted to be pleaded by the lessee in any case where occupation is enjoyed: for the Court will not permit a tenant to impeach his landlord's title: nor indeed will an action for rent lie where the title is in dispute. So, a tenant cannot set up the title of the mortgagee against the mortgagor: because he holds under the mortgagor and has admitted his title (c). But a tenant is not at all events estopped to deny his landlord's title; the estoppel exists only during the continuance of his occupation; and if he be ousted by a title paramount, he may plead it (d). If in a lease special days of payment be limited by the reddendum, the rent must be computed according to that, and not the habendum (e). In debt for rent, where the plaintiff had declared for more than was due upon his own shewing, upon nil debet pleaded, he had judgment and damages and costs, notwithstanding; and it being moved in arrest of judgment that the plaintiff had made an entire demand for rent to a certain sum when it appeared that he could not have an action for so much, yet the Court held that he might release the surplus and damages, and take judgment for the residue (ƒ). If the lessor accept rent due at the last day of payment, and give a discharge thereof and acquittance, this shall discharge all preceding arrears, and this would be good evidence on nil debet; for it is not (a) Kemp v. Goodal. 1 Salk. 277. Veale v. Warner. I Saund. 324-5. note 4. (b) Strowd v. Willis. Cro. Eliz. 362. (c) Heath v. Vermeden. 3 Lev. 146. Esp. N. P. 233-5. Cooke v. Loxley. 5 T. R. 4. Goodtitle d. Norris v. Morgan. IT. R. (d) Hayne v. Maltby. 3 T. R. 438-441. presumable that a man would give a receipt for the last gale of rent, when the former gales were unpaid (a). So, if the defendant plead "levied by distress" and so nil debet, he may give a release or payment in evidence: and even though there never was any distress made, yet is the evidence of payment or the release good; for the issue is on the debt, and the defendant proving it discharged, by any means, supports this issue (b). If the lessor have covenanted to repair, and bring debt for his rent, it seems that the lessee may plead that he expended the rent in necessary repairs, and so owes nothing (c): but he must plead this specially, and cannot give it in evidence on the general issue, for he might have covenant on it against the lessor; wherefore also, if the lessor had brought covenant for rent instead of debt, the lessee could not plead expenditure in reparations at all, the remedy being reciprocal (d). However, where there is an express covenant in the same indenture, that the lessee may deduct for charges and repairs, there clearly the defendant may plead it in bar to debt for rent (e). So, the defendant may plead non est factum; for, dènying the existence of the deed, there can be no estoppel (ƒ). If the defendant plead non est factum, the plaintiff must prove the execution of the deed, and proof that one who called himself B. executed it, is not sufficient, if the witness did not know it to be the defendant (f). Under this plea, the defendant may give in evidence any thing that proves the deed to be avoided, though it were delivered as his deed; for the plea is in the present tense, and if it be avoided, it is not now his deed (ƒ). But if the defendant plead rasure & sic non est factum, nothing else is evidence but rasure (b). Riens in arrière is a good plea in debt for rent, though it would be bad in covenant for rent; for in covenant such plea confesses the covenant broken, and goes only in mitigation of damages (a). Therefore, where the defendant pleaded "that nothing of the rent is in arrear and unpaid as by the declarations is above supposed," it was held to be the same as if he had said nil debet, and that it related to the time of the action brought, as well as that of the plea pleaded, for if the rent were due and be not at the time of the plea, it could not have (a) Esp. N. P. 234. Co. Lit. 373. a. Pennant's case. 3 Co. 65. b. Pamer v. Stabick. 1 Sid. 44. (b) Gallaway v. Susach. I Salk. 284. Cecil v. Harris. Cro. Eliz. 140. (c) Taylor v. Beal. Cro. Eliz. 222. (d) Bull. N. P. 176. Clayton v. Kynaston. I Ld. Raym. 420. Bullock v. Dommitt. 6 T. R. 650. (e) Johnson v. Carre. 1 Lev. 152. Esp, N. P. 234. (f) Bull. N. P. 170-1. ceased to be due, but by the plaintiff's accepting it; and if so, he waives the action, though it was well brought at the time (a). The defendant may also plead payment at or after the day; for acceptance of rent may be pleaded in bar to debt for rent, though not to a recovery in covenant (b). If the defendant plead a tender on the land at the day, he must make a profert of the money (c). Where the plaintiff gave a note of hand for rent in arrear, and took a receipt for it when paid, the defendant afterward distrained for the rent, and the plaintiff brought trespass: it was holden, that notwithstanding this note, the defendant might distrain; for it is no alteration of the debt till payment (d). So, if a landlord acept a bond for rent, this does not extinguish it, for the rent is higher, and the acceptance of a security of an unequal degree is no extinguishment of a debt. But a judgment obtained upon a bond would be an extinguishment of it (d). Entry and eviction of the whole or any part of the premises demised, is a good plea in bar to an action of debt for the rent. It must be a tortious entry and eviction, or expulsion, to occasion a suspension of the rent; a plea that states a mere trespass will not be sufficient (e): for if the lessor enter by virtue of a power reserved, or as a mere trespasser, yet if the lessee be not evicted, it will be no suspension of the rent (f). Therefore, where the lessee pleaded in bar that the lessor entered on the premises and broke and pulled down the ceiling of a summerhouse and tore up the benches, whereby the lessee was deprived of the use thereof, without any eviction being stated, it was held to be bad (e). Debt was brought upon a lease for years of land in D..for rent arrear for a year and a half at the Annunciation, 19 J. 1. The defendant pleaded, and confessed the lease and reservation; but further pleaded, that the lessor and all those whose estate, &c. had common in ten acres in E. always for their beasts levant et couchant upon the said tenements, every year after corn sown, from August 7, until the corn reaped and carried away; and that before any rent was due, the lessor inclosed the said ten acres, wherein he ought to have had his common, with hedges and ditches, and ejected him, so as he might not use his common, and thereby his rent was extinct: whereupon it was demurred (among other objections) that the land inclosed is not alleged to be sown with corn; otherwise, by his prescription, he is not to have common, and the Court held that the plea was ill (g). (a) Wa ner v. Theobald. Cowp. 588-590. | (b) Arthur v. Vanderplank. 7. Mod. 198. (c) Brownlow v. Hewley. 1 Ld. Raym. 82. (d) Bull. N. P. 182. () Huntv. Cope. Cowp. 242. (f) Bull. N. P. 177. (g) Sanderson v. Harrison. Cro. Jac. 679. The plea must state an eviction or expulsion of the lessee by the lessor, and a keeping him out of possession until after the rent became due; otherwise it would be bad (a). In debt for rent, it is optional for the defendant to plead the entry and expulsion by the plaintiff, or to give it in evidence upon nil debet (b). Infancy is another good plea in debt for rent: but a lease made to an infant is not void, but voidable only; and if it be beneficial to him he is liable to an action for the rent reserved (c). Therefore, where to debt for rent, the defendant pleaded infancy at the time of the lease made; on demurrer, the Court held that the lease was voidable only at the election of the infant, manifested by waiving the land before the rent-day came; but he not having done so, and being of age before the rent day came it was deemed an election, and the plaintiff had judgment (d). A set-off may also be pleaded to a general issue in this action, Touching this plea, it was first given by stat. 2 G. 2. c. 22. which enacts, That where there are mutual debts between the plaintiff and defendant, or if either party sue or are sued as executors or administrators, where there are mutual debts between the testator or the intestate and the other party, one debt may be set off against the other, and such matter given in evidence on the general issue, or pleaded in bar; but if intended to be given in evidence on the general issue, notice must be given of the particular sum intended to be set off, and on what account it has become due. The stat. 8 G. 2. c. 24. further enacts, That mutual debts may be set off against each other, notwithstanding such debts were of different natures, unless in cases where either of the debts accrued by reason of a penalty contained in any bond or specialty, in which case, the debt intended to be set off must be pleaded in bar, and in which plea shall be shewn how much is truly due on either side; and in case the plaintiff shall recover, judgment shall be entered for no more than appears to be due after one debt set against another. The general issue mentioned in the statute must be understood to mean any general issue. With respect to the statute of limitations, although the words of that statute are general as to the limitation of all actions of debt for arrearages of rent, yet it has been adjudged that an action of debt. for the arrearages of rent reserved by indenture was not within the meaning of the said statute (d). With respect to a release, it is said that it cannot be given in evidence without pleading; for it being a discharge by deed, all legal (a) Salmon v. Smith. 1 Saund. 204. n. 2. (6) Anon. I Mod. 35. Browne's Case. Ibid 118. (c) Ketsey's Case. Cro. Jac. 320. |