
    Joshua Elder vs. G. A. Henry, Adm'r, &c.
    
    Limitations. Debt for arrearages of rent. Act of 17'16, ch. 27, § 5. An action of debt for the use and occupation of real estate, is debt for arrearages of rent within the meaning of the Act of 1715, ch. 27, § 5, -and is barred after three years.
    FROM MONTGOMERY.
    The plaintiff brought his action of debt in the circuit court of Montgomery against the defendant, as administrator, for the use and occupation of certain real property in the town of Clarksville, by defendant’s intestate during his life-time, from the year 1847, until his death, in 1851. The writ was issued the 20th of August, 1853. The defendant pleaded the bar of the statute of limitations of 1715, ch. 27, § 5, which upon the trial at September term, 1854, judge Pepper held to be applicable to the action. The plaintiff’s recovery was limited accordingly. He moved for a new trial, which was overruled, whereupon he tendered his bill of exceptions, and prosecuted a writ of error to this court.
    James E. Bailey, for the plaintiff,
    said:
    That the word “rent” has a legal technical signification, and means a certain profit which issues yearly out of lands and tenements. Comyn on Land, and Ten. 95 marginal paging, in Law Library.
    
      The profit, to be “rent” must, therefore, be certain and fixed in amount. IMd. 95-96.
    It must be payable annually. It must be founded upon an express contract, for without such a contract, neither the sum to be paid, nor the time when payable could be fixed.
    The rent thus defined, is a debt of a very high order. It is of as high a nature as a specialty, although reserved by parol, and may be paid by an executor in preference to a specialty debt, for it savors of the realty. 29 Eng. Com. Law Keports, 168.
    It had in England, by common law and statute, annexed to it the privilege of being collected by distress.
    The action of debt for rent, was founded upon pri-vity of contract in respect of the estate, as soon, therefore, as the privity of estate was transferred, the remedy by debt was gone. Com. Land, and Ten., 422.
    And (in many cases it was a local action. IMd. 428.
    To this action defendant might plead in bar: that on the day the rent became due, he was upon, and continued to be upon the land, ready and willing to pay the rent. IMd. 529.
    And as his liability to pay rent arose upon his contract, it was no defence to' the action for rent to say he never occupied. IMd. 536.
    As at common law it was not every reservation of rent nominally, which constituted a rent, properly so called; IMd, 364. So, where there was no specific rent agreed upon, the action for use and occupation was the only remedy. Per Bayley J., 7 Eng. Com. L. R., 117.
    
      In the first, as in the last case, debt for rent would not lie, because it was not rent due.
    The ancient form of “debt for rent” has given way to the more convenient action of debt for use and oe-ciopation. In this action the defendant is merely charged in respect of his occupation. It having been held unnecessary to set forth any demise, or for what term, or at what rent the lands were demised, or for what space of time, or at what period the defendant occupied them'. The action also is transitory. All that is necessary to state is, that the defendant is indebted for the use and occupation of certain premises belonging to plaintiff, and occupied by defendant for a long time. Com. Land, and Ten., 431.
    This action is distinguished from the action of “debt for rent” — that it is not founded upon an express contract. That it is not for a sum certain and fixed by the parties, but for a reasonable remuneration for the use of the land. 41 Eng. Com. Law Rep., 810.
    That it is not for a sum of money issuing annually from the land, the remuneration accruing from day to day. 41 E. C. L. R., 810.
    It is in all cases a transitory action. Com. Land, and Ten., 431. It is not necessary to describe the land or set forth any demise. The defendant can be charged only for the time he actually occupied the land.
    The action is of modern origin. The first action of the hind in England, being in 32 Geo. HI, which was subsequent to the year 1715, when the statute relied on, was passed. Per Denman J., 41 E. C. L. R., 410. Comyn’s Land, and Ten., 431.
    The foundation of the action is this: Where land of one person by bis: permission is occupied by another, without any express contract, a promise to remunerate him is raised by the law. The obligation is co-exten--,sive with and measured by the enjoyment, and as soon .as the occupation ceases, the implied contract ceases. In such cases the action of debt for rent would not lie. The action was wanted for no other case than-where the occupation was for no certain time at no> fixed rent, for in all other cases, the action of debt for' rent was the appropriate remedy. Per Denman, O’. J., delivering the opinion of the court of Q, D. 41 Eng', Com. Law Rep., 410.
    This then is not an action of “ debt for arrearages-of rent,” such as was contemplated by our act of 1715, and the only statute of limitations applicable to this case, is the statute, 21 James 1.
    The statute of 21 James 1, although it recognizes actions of “debt for arrearages of rent” as differing from actions “founded upon a contract without specialty,” yet makes the limitation the same, and so do the statutes of the. different States of the union, with the exception of Tennessee and North Carolina. See appendix to Ang. on Lim. And hence, it is impossible to find, either in England or America, any authority directly upon this question of the statute of limitations.
    Shackleeoed, for the defendant,
    cited and relied upon the act of 1715, ch. 27, § 5.
   CaRtjtheRS, J.,

delivered the opinion of the court.

This is an action of debt for the use and occupation of a house and lot in the town of Clarksville from 1846, to the death of the intestate, in 1851.

The defendant felt it to be his duty, as administrator, to rely upon the defence of the statute of 1715, ch. 27, sec. 5, by which '‘actions of debt for arrearages of rent” are limited to three years. The court charged the jury that the act of 1715, applied to this action, so the plaintiff must, therefore, he limited in his recovery to three years from the commencement of his suit.

The plaintiff recovered according to the charge, but believing the limitation to he six years, instead of three, appealed in error to this court, from the judgment of the court refilling a new trial, for this supposed misdirection of the jury.

The single question presented is, whether this action of debt is for “arrearages of rent,” in the meaning of the act. If not, and there is no other bar for this action, in our legislation, it must fall under the English statute of 21, James 1, ch. 16, sec. 3, which has been declared to be in force here, except so far, as7 it has been superseded by our own act. That is more general in reference to the action of debt, and embraces all such actions, as are '■‘■grounded on any binding, or contract without specialty.” Oar. and Rich., 770. For some reason satisfactory to themselves, the time of limitation was only shortened by the legislature in 1715, in the action of debt in the single case specified. To say no more of it, certainly the argument made by the counsel for the plaintiff, that the word “rent,” has a technical meaning, in which it was used in the act of 1715, and that the same does not embrace an unsettled claim for the use of land, is quite plausible. But still, we regard such a construction 'as too close and technical, to be applied to the language used by a legislature of plain and practical men. It is true, that the word “rent” has a legal and technical signification, and means a certain profit, which issues yearly out of lands and tenements, and is generally fixed by contract, and payable annually, and had in England, a preference over other debts in payments by execution, as it savors of the realty, and might be collected by the summary remedy of distress. Oomyn on Land, and Ten., page 96. Law Lib., 29. Eng. Com. L. B., 168-11. Same, 810.

It is also true, that the action of debt, for use and occupation, is of comparatively modern origin, perhaps the first instance of it since the year 1716; but it has since become the most common action for the recovery of remuneration for the use of lands, and has, to a great extent, superseded the same action for rent, properly so called — as it requires less particularity in declaring, and more latitude in the proof, not requiring a special contract, fixing the terms and price to be averred or proved, but only the use of the land and the reasonable price.

An action of indebitatus assumpsit was always a concurrent remedy with debt for the use of land, where there was no demise under seal. There are, as argued, many points of distinction between an action of debt or assumpsit for rent, properly so called, and remuneration for occupation of land. The first, being fixed and certain in amount, as well as time by contract, and the latter, unsettled as to the amount, and for no particular time, depending on tbe .facts, instead of express contract for botb. It is bare permissive use of another’s land, for which the occupant is liable for the time he is in possession, and no • longer,, and for the amount it is proved to be reasonably worth. Whereas, the renter, by special contract is bound for the sum stipulated, whether he owns the property or not, and for the time agreed upon in any event. In these, and other respects, as well as in the rules of pleading and evidence, there is certainly a dissimilarity in the two cases, but still, it is not perceived how this can affect the application of the statute of limitations. .

There is no reason to be found in the policy of the act of 1715, shortening the time for the bar in debt for- rent, that would not apply to the same action for use and occupation. Indeed, that policy would seem to dictate the reverse. All acts of limitations are for the benefit of defendants, to protect them from stale demands, and save them from the consequences of loss of evidence, or death, or forgetfulness of witnesses. If this be so, then there would certainly be more danger from a claim indefinite and undefined by contract, than one rendered special and definite by distinct stipulations, either verbally or in writing.

It can hardly be supposed, that when the legislature, in the act of 1715, prescribed three years as the limitation of .an action of debt, for “rent” that they intended the time should still continue .to be six years, under the act of James 1st, if in the same form of action then, or afterwards adopted in practice, the action .should be grounded on “the use and occupation,” instead of a technical renting. The action is still in substance, the same.. It is for the recovery of a just remuneration for the use of the property. In the one case, there is an express, and in the other, an implied contract to pay what is right — in the former, -the price is fixed by the parties, and in the other, by the proof of witnesses; but the consideration and the substance of the debt sued for, is still the same.

It has been well settled in this State, that although the bar of the statute applies to the form of the action, yet, if since the statute, other remedies are given for the same kind of demands, as by motion, instead of the ordinary action, yet the same limitation prescribed for the action, will be applied to the new remedy.

There was no error in the charge, and the judgment will be affirmed.  