TITLE XXVIII. RENTS. Discharge of 2 Roll. Ab. 489. Gilb. 145. CHAP. III. Of the Discharge and Apportionment of Rents. § 1. Difcharge of Rent-Service. A Section 1. portioning of Rent. RENT-SERVICE being fomething given by way of retribution to the leffor, for the ufe and occupation of the land demifed; the leffor's title to the rent is founded upon the principle, that the land demised is enjoyed by the tenant. But if the tenant be by any means deprived of the land demised, his obligation to pay the rent ceases; as it would be unjust, that he should be obliged to make a return for that which he does not enjoy. § 2. From this principle it follows, that if the tenant be evicted from the lands demifed to him, he will thereby be discharged from payment of the rent ; but, in cafes of this kind, the tenant is liable to the payment of the rent, which became due before the eviction; because the obligation continues as long as the confideration. S 3. If § 3. If the tenant be evicted by a title paramount, Idem. before the day appointed for the payment of the rent, fuch eviction will difcharge the tenant from payment of any part of the rent. $ 4. As the tenant is discharged from the payment of the rent, when the land is evicted by a title para- Gilb. 149. mount; fo, by a parity of reason, he fhall be dif charged from it, when the lord purchases the tenancy: for, in such case, the lord cannot have both the land and the rent; nor fhall the tenant be under any obli gation to pay rent, when the land, which was the confideration is refumed by the lord into his own hands. And this refumption, or purchase of the tenancy by the lord, makes what the law books call an extinguishment of the rent. § 5. If the conveyance of the land be not abfolute, Gilb. 150 but upon condition; or, if it were only of a particular eftate of fhorter duration, than the eftate which the lord had in the rent-fervice; in these cases, though there be an union of the tenancy and of the rent in the fame hand, yet as that union is only temporary; (for upon the performance of the condition, or determination of the particular eftate, the tenant will be restored to the enjoyment of the land by virtue of the donation; and confequently the obligation to pay the rent will revive:) therefore the rent is in fuch cafe only fufpended, not extinguished. § 6. Where a perfon who has a rent-fervice, pur- Gilb. 152. chases part of the land out of which the rent iffues, the Lit. f. 222. Dyer, 33 a. Paradife v. Jane, Allen. 26. the whole of the rent-fervice is not thereby discharged, but only a part, proportioned to the quantity of land purchased; becaufe, in the cafe of a rent-fervice, the tenant is under the obligation of fealty to perform to his lord the fervices, due for the land which he holds of him and this obligation continues, while any part of the land is held by the tenant; for, otherwise the remaining part of the lands would be held of nobody, and freed from all feudal fervices; which would formerly have been a detriment to the public. And, as the tenure between the lord and tenant continued for fo much of the land as remained unpurchased, the tenant was by his oath of fealty obliged to perform the fervices; but, as the lord had refumed part of the land, the fervices were diminished in proportion to the quantity of land refumed. § 7. Where the law creates a duty or charge, and the party is difabled to perform it without any default in him, and has no remedy over, there the law will excufe. This is the principle, upon which the tenant has been held in the preceding cafes to be discharged from the payment of rent. But when the party by his own contract creates a charge or duty on himself, he is bound to make it good, notwithstanding any accident by inevitable neceffity; because he might have provided against it by his contract. § 8. In confequence of this doctrine, it was refolved that a leffee for years was bound to pay his rent, though an army had entered upon the lands, and kept him out, fo that he could not enjoy them; for ; for the rent was a duty created by the reservation and, had there been a covenant to pay it, there had been no queftion but the leffee must have made it good, notwithstanding the interruption by enemies : for the law would not protect him beyond his own agreement; and, the refervation being a covenant in law, it was the fame as if there had been an actual covenant. Another reason was added; that, as the leffee was to have the advantage of cafual profits, fo he must run the hazard of cafual loffes, and not lay the burthen of them upon his leffor. § 9. It has been refolved that, if the leffee of a house covenants to pay the rent during the term, he is compellable to pay it though the house is burnt down, and the landlord is bound to rebuild it. this doctrine has been fully confirmed in a modern cafe. And Belfour v. Term R. Weston, 310. S 10. In a leafe of a house and warehouse at Wapping, the leffee covenanted to pay the rent and keep the premiffes in repair, cafualties by fire only and always excepted. The house was burnt down by accident, and the leffor brought an action of covenant for the rent. The leffee pleaded that the house was burnt down by accident. Upon demurrer the court was of opinion that the point had been determined in the cafes of Paradife v. Jane, and Monk v. Cooper. Ante. And Mr. Juftice Buller read a note of the cafe of Pindar v. Rutter, at the fittings at Westminster after Mich. 1767. That was an ejectment by the tenant against his landlord, to recover the poffeffion of fome houses which had been burnt down during the term, and had been rebuilt by the landlord. In the lease there was an exprefs covenant on the part of the tenant to pay rent, but he had paid none fubfequent to the fire. Lord Mansfield, before whom the cause was tried, faid, the confequence of the house being burnt down was, that the landlord was not obliged to re-build, but the tenant was obliged to pay the rent during the whole term. The premiffes confifted of houses only, and the fire had made them quite useless. In March 1793 the premiffes were worth nothing; but the landlord if he had infifted on the rigor of the law, might have obliged the plaintiff to pay rent for nothing during the remainder of the term; and then the plaintiff would have been glad to have delivered the premiffes. Therefore he left it to the jury to confider whether it was not to be prefumed that the tenant had abandoned the lease at the time of the fire; and accordingly the defendant had a verdict. up S 11. This doctrine does not appear to have been fupported by the Court of Chancery, for in a cafe of this kind which arofe in 1764, but which went off upon another ground, Lord Northington faid,-"The "justice of the case is so clear that a man should not 66 pay rent for what he cannot enjoy, and that occa⚫ "fioned by an accident which he did not undertake "to stand to, that I am much furprised it should be "looked upon as fo clear a thing that there should be "no defence to such an action at law; and that such "a cafe |