
    Fulton and Kirker v. Stuart.
    Where a lessee assigns a part of the premises leased to a third person, for the whole period of time of the lease, it is hut an underleasing, and the lessor can sustain no action on the lease for rent against such assignee.
    This was an action of covenant brought from Muskingum county. The declaration sets forth a lease for years, from the plaintiff to Jeremiah P. Munson, and alleges, that all the estate, right, title, and interest of the said Munson, the lessee, to the demised premises, except thirty feet square of vacant ground, by assignment came to the defendant, who had occupied the same, and assigns the non-payment of the rent reserved as a breach. The defendant demurred generally, and the decision was reversed.
    Silliman and Spangler, in support of the demurrer, cited:
    Hartford v. Hatch, Doug. 183, as settling the doctrine, that an assignment of lease for any period of time short of the whole term, was but an underletting, upon which the lessor could sustain no action against the assignee *for the rent; and they argued that an assignment of a part of the premises was- as clearly an underletting, as an assignment of the whole for a part of the term only.
    Culbertson, for the plaintiff, cited:
    2 Chit. Pl. 455, 456; 1 Saund. 241, c; 2 East, 575; 1 Dal. 210; 1 Saund. 112; 4 Dun. & East, 75; and argued, that the assignee was liable for rent upon the privity of estate, and not upon the privity of contract, and that the same rule ought not to be applied to an assignment of part of the term, and an assignment of part of the premises.
   By the Court :

It seems to be settled, that where a lessee assigns his lease for any shorter period of time than that for which the lease was granted, the lessor can not sustain an action of covenant against the assignee upon the lease; because this is considered, not an assignment of the whole term, but an underletting. The principie applies with at least equal force to the case of an assignment, or underletting of a part of the premises only.

If the lessee constitutes two under-tenants, by assigning one-third of the leased premises to one, and one-third to another, retaining one-third himself, the lessor may have three distinct actions ; and in apportioning the rent, the aggregate given against each might amount to more or less than the amount reserved, and the parties in -either case would be without remedy. If the lessee underlet or assign the whole premises in equal quantities, to different persons, the lessor will be driven to as many actions against different persons, to recover his rent, instead of having one action against the lessee. For the separate assignee of a part can neither be charged with the whole rent individually, nor jointly, with one or more of his co-tenants.

In this case the declaration states, that the defendant was not assignee of the -whole premises; he did not take, and does not hold, the whole term of the original lessee.

The demurrer must, therefore, be sustained. 
      
       Note by THE Editor. — See also iii. 449; vii. Ill, part 2.
     