
    
      James McEwen vs. John R. Joy, Administrator of A. E. Allen.
    
    Debt líos against an administrator for rent upon a parol lease made to the intestate, 
    
    Where debt is brought against an administrator, an objection to the form of action must be taken by demurrer.
    Kent reserved by parol has the same precedence, under the Act of 1789, in a course of administration, as rent reserved by specialty; and it makes no difference whether the rent is due at the death of the intestate, or has become due afterwards.
    When sued in his representative character only, an administrator is liable forthe whole rent, to the extent of the assets in his hands, without regard to the profits received by him from the unexpired term.
    
      Before Wardlaw, J., at Kershaw, Spring Term, 1853.
    The report of his Honor, the presiding Judge, is as follows:
    “Debt for rent. The declaration, alleged that the plaintiff had demised a house and lot inCamd'en to the intestate, Allen, for one year, ending the last day of September, 1852, at the yearly rent of $250. Whether the demise was by deed or by parol, was not stated. The pleas aver no rent in arrear, and plene administravit prceter.
    
    
      “A letter from Allen to the plaintiff, (admitted, notwithstanding objection,) .showed a contract by Allen to take the house for the .year specified, at the rent of $250, payable quarterly, if desired. Allen died 2d January, 1852. Om the 21st January, 1852, the plaintiff acknowledged the receipt from the defendant, as administrator, of $62.50, in full of the rent for the quarter which ended 31st December, 1851. In March, 1852, the defendant tendered the keys and possession of the house to the plaintiff. The plaintiff refused to 'accept. The defendant afterwards advertised the house to be let until the first of October following : and a receipt given by him to one Harris, was adduced, showing that he had received from Harris $20.83, the rent for the month ending the last of September, 1852.
    “ The plaintiff urged his right to recover for the whole year, and to have, under our Act, which settles the order in which the debts of a deceased person shall be paid, the preference which is given to rent over most other contracts of the deceased, whether by specialty or simple contract.
    “The defendant insisted that rent had no preference, unless it had been reserved by indenture; that the evidence of a contract in writing was inconsistent with the declaration; that debt will not lie upon a contract for rent not by specialty; and that, at any rate, the preference given to rent in the distribution of an insolvent’s assets, could not be extended to the rent which accrued at an indefinite time after the death of the insolvent, or to rent, depending upon the contract or acts of the administrator, but must be confined to the rent which was in arrear at the death of the insolvent, or at most to that which became due at the next day of payment.
    “Under my instructions, the jury found for the plaintiff $62.50, with interest from the first of April, 1852 — being the rent which was due at the end of the quarter during which the intestate died.”
    The plaintiff appealed, and now moved for a new trial, on the ground :
    That he was entitled to recover, not only the rent for the quarter current at the death of the intestate, but for those remaining quarters of the term which had expired before action brought.
    The defendant also appealed, and now renewed his motion for a non-suit, and, failing in that, moved in arrest of judgment, on the grounds:
    1. Because the cause of action, as declared on, was a parol demise for rent, aud not a specialty or an instrument under seal.
    2. Because debt will not lie upon a contract of intestate not under seal, against administrator.
    
      
      Kershaw, for plaintiff,
    cited, on plaintiff’s ground of appeal, 2 Williams on Ex’ors, 868, 869; Thompson vs. Thompson, 9 Price Exch. R., 471; Chit. Gen. Pr. 539, 540; 1 Salk. 297; Went. Off. Ex., 285; Jones vs. Harridge, 1 Saund. 1, note; 1 Brev. Dig. Tit. Ex’ors and Adm’rs, $ 33: and on defendant’s grounds, Com. Dig. Tit. Adm’on, 13, 14; Cage vs. Acton, Holt, 309.
    
      Caston, contra,
    cited, on plaintiff’s ground of appeal, 3 Co., 63, 64; Sel. N. P., 610; 3 Lev., 74; 5 Stat., Ill; Hutchinson vs. Bates, 1 Bail, 111: and on defendant’s ground of appeal, 1 Chit. PL, 345; 3B1. Com., 345, 347; 2 Co. Litt, 295, a; Com. Dig. Plead. (2 W. 48); Jac. L. Die. Wager at Law; Pinchonas case, 5 Co., 158; Barry vs. Thompson, 1 New Rep., 293; 3 Wend. BL, 347, note; 1 Chit. PL, 93, 102; 32 Eng. C. L. R., 360; 42 lb., 97; Hardress R., 485 ; 2 Saund., 66 ; 2 Co., 506 ; Chappell vs. Brown, 1 Bail. 528.
    
      
       Wager of law bas been abolished in England by statute, and debt on simple contract now lies, in all the common law courts of that country, against an executor oí administrator. 2 Wheat. Sel. 804. If wager of law does not exist in this State, (and if it exists, it is certainly obsolete,) it would seem plain on principle, that debt on simple contract would lie against an executor or administrator. Cessante ratione, cessat etipsa lex. Vide 1 Dunl. Pr. 11; 3 Bl. Com. 347. R.
    
   The opinion of the Court was delivered by

W audlaw, J.

The defendant is sued in the detinet only: the rent of the first quarter has been paid : the rent of the second quarter, (in the course of which the intestate died,) has been found against the defendant by the verdict: if our Statute of 1789, (5 Stat. Ill, § 26,) in settling the order for payment of the debts of an intestate, confines the precedence which is given to rent over bonds and other obligations, to the rent which was due at the death of the intestate, and that which would become due at the next day for payment after his death, then the plaintiff should recover no more than he has done; but if that precedence is extended to all rent which may accrue under a contract of the intestate, then the defendant here has assets to pay some, if not all, of the rent for the last two quarters, and the plaintiff is entitled to a new trial.

The single word used in the statute is rent, general and indefinite. Conformably to the English cases, (1 Salk. 325; 1 Ld. Raym. 515,) our cases hold that it is immaterial, whether the rent be reserved by lease in writing or by parol, Chappell vs. Brown, 1 Bail. 528. In the right of distress, difference may be made by the death of the lessee; but the preference given to rent seems not to depend on that right, but, like it, to have grown out of the preference yielded to landlords, partly from feudal reasons, and partly from consideration of the necessity of habitation for human beings. That assets, which arose from other sources, should be reserved to meet rent that may, long after the death of an intestate, become due upon a contract, perhaps improvidently made by him for a long lease, will, without doubt, be in some cases inconvenient and unjust; but the unexpired term is assets in the hands of the administrator, the profits it may yield are supposed to exceed the rent, and there is justice in the landlord's claim that those profits should not be directed to the payment of other debts, in defeat of the rent. We conclude that there is no good ground for a distinction, with regard to precedence, between rent which was due at the death of the intestate, and that which became due afterwards.

Against personal liability, the administrator may secure himself by offer to surrender the term, and refusal to enter: even after entry, he may, by proper pleading, confine his personal liability to the profits received by him, if they should be less than the rent; but when sued in his representative character only, he is, to the extent of assets in his hands, liable for the whole rent, without regard to the profits received by him. (See 2 Wms. on Exec’rs, 868, 1491; 1 Saund. 1; 2 Platt on Leases, 372.)

The plaintiff’s motion is granted.

O’Neall, Withers, Whitner and Glover,*JJ., concurred.

Plaintiff's motion granted.  