
    GENERAL COURT,
    OCTOBER TERM, 1798.
    Chase’s Lessee vs. The Executors and Legatees of Lindenberger.
    Ejectment for a lot of ground No. 10, particularly described by bounds, containing 9† acres, and S3 square perches of land, being part of a tract of land called Howard’s Timber Meek, lying in Baltimore county.
    The FXAiNTirr's titee. On the 5th of August 3780, Charles Ridgeiy, son of John, leased the above lot of ground to George Lindenberger, (father of the defendants, and under whom they claim.) for 99 years renewable forever, at the amiual rent of 237,. 13s. 0d. sterling money,» payable on the 1st day of January yearly. Charles Ridgehj died in December 1786.
    On the 26th of November 1792, Samvel Chase, the lessor of the plaintiff, purchased the reversion in fee simple (at auction,) from William McLaughlin, trustee of the creditors of the said Ridgeiy, under a decree of the court of chancery, McLaughlin died before conveyance; and on the 22d of June 1795, Samuel (¡liase obtained a deed from Randolph B. Latimer, appointed by the chaiiceUor trustee in the places of M‘Laughlin. On the 9th of July 1795, Rebecca Ridgely', (widow of the said Charles Ridge-by,) conveyed her life-estate to the said Chase, this lot having been assigned to her as her dowel* in the real estate of her deceased husband!
    The defendants claim under a lease from Charles Ridgely, therefore they cannot controvert, his title, as their lessor. — 1 Term. Rtp. 758. 2 Term. Rep. 698. If two persons claim under tlie same title, neither of them can contravert it. — 5 Term. Rep. 4. The lessor of the plaintiff claims also under the same Charles Ridgely, and if by. his purchase at auction, and his conveyance in consequence thereof, hé has Ridgehf s title of the reversion, he is in virtue thereof entitled to the rents from the time of 'his purchase — Co. Littí 15 lib. 152. a. 305. b. 3 Co. 22. b.
    
    The present ejectm'ént is brought under the statute of the 4 George XL eh. 28, to recover five years rent from, the 1st of January 1792; to 1st of January 1797, at 22Z, 13s. Ofl. sterling per year. — 3 Élack. Com. 206.
    By this statute, in cáse of judgment against the casual ejector; or ivonsnit for not confessing lease, en try and ouster, an affidavit (of lessor) is hecessaxy to prove three things, 1st. That half a year’s rent was due before the declaration in ejectment was served» 2d; That no sufficient distress Was' to be found upon tlie demised premises, countervailing the arrears then due. 3d. That the lessor had power to enter. On trial these three things must be proved.
    The frst thing to be proved under the statute is not denied; Tlie second will be proved, (if required.) The third is incident to the reversion,* and if the plaintiff is entitled to it he had a power to re-enter, ifoitry for nonpayment of rent is expressly stipulated in the lease.— 1 Burr. 620, for the form of affidavit. Runn. Eject. G7. Sheridan’s Pr. 514. 1 Burr. 615, 618, 620.,
    The plaintiff, to support his ejectment at common law, must prove three things. — 1st. That one year’s rent was in arrear before action brought. 2d. That there was no sufficient distress to be found upon the premises. 3d. That the plaintiff made a lawful demand of the rent in arrear.
    The defendant’s defence. That Charles Ridgely, (son of John,) the lessor after the lease, cut down a dam, made' before the lease, to convey water through the demised premises, and thereby turned away the water, and prevented it from passing through the lot.
    To this defence/our objections occur.
      First. Thex*e is no mention of the water in the lease. Qiiere — Is any evicJcnce admissible to prove that the lessee was to have the benefit of the water? 2 Blk. Hep. 1249. 2 Fonblane’s Jrent. Qj |g8j note, where all the cases on the subject are collected. 3 Jllk. 384. Espinasse, 780, 781.
    
      Second. If evidence is legal, and the fact is proved, yet the remedy by the lessee was by action' on the case against the lessor for damages.
    
    An action on the case lies for diverting a water course, but the plaintiff, to maintain such action, must shew a right to such water course. The action is maintainable on this ground, that the plaintiff has a property in the watercourse. — Carth. 116. 1 Ld. Raym. 248, 452. 2 Ld. Raym. 1402. 1 Com. Dig. 59.
    
      Third. If Charles Ridgely, (son of John,) the lessor, did cut down the dam on Ridgely’s Delight, and thereby turned the water from running to lot No. 10, the leased premises; yet such act is not sufficient, in law, to extinguish, or to suspend the rent.
    1st. If the whole of the leased premises were evicted (or recovered at law,) by a stranger, by elder title, the whole rent is extinguished, or destroyed, and can never revive.— Co. Litt. 147. h. 272. h. 8 Co. Rep. 22. a. h. 10 Co. 128. a. Salk. 65. This decision is grounded upon the defect in the lessor’s title.
    
    If no express covenant in the lease, yet the law implies one by the lessor, that the lessee shall enjoy his lease against the lawful entry and eviction of any, man. The lessee, to justify nonpayment of the rent, must shew that he was evicted by an elder title. — -Faugh. 118. Law of Cov. 176. Viru Ab. tit. Rent, 509, pi. 4. Fortes, 306. Cro. Blv%. 52.
    2d. If paht of the leased premises is evicted, or recovered at law by a stranger, by elder title, there shall be an apportionment, or division of the rent, by the jury, who shall try the cause. — Co. Lit. 147. b. Cro. Ja. 310. 3. Fin. Ab. tit. Apportionment, 12, pi. 16, c. 17, pi. 1, 2. And the reason for apportionment is, because, though part be taken away, yet some part remains, and there is a pari of the consideration money remaining due to the lessor; and if there was no apportionment, the act of the law, in the recovery by the stranger, would do wrong to the lessor. — Gilb. L. B. 283.
    3d. If the lessor shall enter and evict (oust or expel,) the lessee of any part of the leased premises, such act suspends the whole rent during such eviction; and there shall be no apportionment of the rent. — Co. Lit. 148. a, Ld. Raym. 77. This decision is founded on these reasons*. 1st. The law will not allow any man to benefit himself by his own wrong, and therefore the lessor shall not apportion the rent by Ms own wrongful conduct. 2d. The contract for the rent is entire; and the lessor by his owe act deprives himself of the benefit of such contract. 3d. The jury ought not to divide the rent in favour of the lessor, because the. lessee contracted to pay the rent for the whole premises, and probably he would not have contracted for one part without the other. The loss of the rent is a proper punishment on the lessor for his violence and injury to Ms lessee. — Güb. Evid. 243. 5 Coke 113. b. Co. Lit. 319. a. Dyer 2\2. b. 18 Fin. Ab. tit. Rent, 513, ph 2. 12 Fin. Mb. tit. Extinguishment, 456, pi. 1. 457. ph 7. 1 Vent. 277. Hob. 190, 326, Styles, 432, 8. G. Hath So Esp. 233.
    
    The reason why a tortious entry by the lessor suspends the whole rent is, because the rent by the original contract is payable out of, and as a retribution for the whole demised premises! therefore when the lessor makes a tor-lions entry into part of the land, the lessee shall pay nothing for the residue! the lessor not suffering the lessee to enjoy that for which the rent was payable by the contract.— G-ilb. Treat, on Motions of Debt, 429, 430.
    To suspend rent, three acts or circumstances must concur: 1st. A tortious entry by the lessor. 2d. An eviction, expulsion, ouster, or putting out, (for they arc all synonimous terms and all mean an amotion of the possession of the lessee, by the lessor. 3d. The holding the lessee out of possession, or not permitting him to re-enter — -Cowp. 243, Muntt vs. Cope. Perkins, sec. 825. 8. P. Vent. 67. L. Maym. 369. Espin. 235, 262, SOT.
    
    The tortious entry alone is no bar. The expulsion makes the first part of the bar, and the holding out the rest Ter IJMfj Comb. 330.
    What fact constitutes a tortious entry by the lessor, or an eviction, or a holding out, of the lessee, is a 'natter of law, to he decided by the court — -18 Vin. Mb, lit. Bent. 504, ph 11.
    The taking* away a pent-house fixed to the premises, h a trespass, but no suspension of the rent. — 2 Jones, US. 8. P. Cowp, 243. Cm, Elia. 341. Golds. 6, 125, ph 15.
    
    It was ibrmoiiy doubted whether the lessor’s entry wrongfully into part of the lands demised did not suspend the whole rent during such tortious entry, or whether the rent ought not to be apportioned. Bat the law Is vow settled, that such tortious entry suspends the whole rent, ■until the tenant be restored to the whole possession. For if an apportionment were allowed in this case, it would be in the power of the lessor to resume any part of the land against his contract, and thus by taking; that which lies most convenient for the tenant, render the. remainder, in effect, useless — 2 Rac. Mb. 450. 4 Rac. Mb, 369 — -and it would encourage the landlord to injure or disturb Ms feasant,
    
      It cannot bo proved that Charles Eidgely, in his lifetime, (or any person claiming under him,) ever made a tor-nous en¿ry on the premises. If there was no tortioiis entry, there could not, be any eviction; if there had been a tortious entry, yet there never was ary eviction; and if there was loth a tortious entry and an eviction, yet there never wag any holding out of the lessee. • To suspend the rent the defendants must, prove that all tlio three acts were com-; mitted by Eidgely, or those who'claim under him, and they cannot prove either act; ergo. they have failed in their defence.
    The rules af pleading are fouuded in good sense; and si uniform mode of pleading is strong evidence of the late — 3 Wood, 53 note. Cunningh.anHs preface to He at his maxims, 4.
    If to an action of debt, or covenant, by lessor against Hoc lessee, for the recovery of rent, the lessee sets up eviction by his lessor, in bar of the action, his plea should properly contain three fads, that the lessor tortiously entered apd evicted him, and kept him out of possession. If the lessor deiiie,, these facts, he must reply, “that he did not evict or expel the lessee,” and issue must he joined thereon. If the facts in the plea are true, but the lessee after the eviction re-entered and enjoyed the premises until after ihc rent became due, the lessor, to destroy this plea in bar, may reply such re-entry and enjoyment, and issue must be taken thereon; and if found for the lessor will maintain his action — Vide Bastal’s Ent. 175. Bro. Bed. 231, 260. 2 Mod. Lit. 135. 1 Sound. 203. PL Geni. 252, 2f8, 279. Thom. 173, 220. Clift, 150. Lili. Ent. 180.
    'Whatever facts plead to an action of debt, or covenant. for rent, are sufficient in law to bar such action, the same fads may he given ia evidence. 'to defeat an action of. ejectment, but no other or less. facts can have that effect. If this was not the law, the right of the parties would depend on the- species of action; and in one the plaintiff, would recover, and in another, for the same cause of action, he would he defeated.
    Let us suppose that Charles Eidgely, in his life-time, (or the present plaintiff,) had brought an action of debt for the recovery of the rent in arrear, and that the defendants had plead eviction, which would run in these' "words: “That after the demise, and before any rent by that demise became due and payable to the plaintiff, the said plaintiff, on the —— day of--, with force and arms, entered into parcel of the premises, and the defendants' from their possession thereof ejected, expélled and amoved, and the said defendants so from thence until — . kept out, &c. i’be replication is, “that the plaintiff did not re-enter, nor expel and amove in manner and form,” &c. and issue. Lilly9s Ent. 180. Garth. 32.2 Mod. Entr. 285,
    
      "Would not the defendants be obliged to prove the truth of their plea? Would evidence of some act done by the plaintiff off the land, from whence consequential damage arose to the defendants, suppoiff the plea? Would such act .sustain any part of the plea? The defendants must prove all the facts in the pica to he true; and for that purpose they must prove first, a tortious or wrongful entry on the land by the plaintiff. If the defendants proved this, and no more, they must fail, because they would then only prove a trespass, for which the law gives a proper and sufficient remedy by action of trespass. If the fact could be proved that Charles Eidgely, the lessor, cut a dam off the lot, by which the water was toned from it, and thereby the benefit of the water was lost by the lessee, yet such act would be no entry on the lot, much less a tortious one, The distinction is' well known, that where the injury is consequential, an action on the case lies; and that where the injury is immediate, and not consequential, an action i>f trespass lies. — 3 Blk. Com„ 133. 2 Term Eep. 231. But the defendants, in the second place must prove, that the plaintiff evicted, or expelled, or amoved them from the possession of the land; and this fact is the gist, or substance of the defence. The third fact, that the plaintiff still held or kept the defendants out of possession, arises out of the second fact, and would be presumed. ■
    ’ 4th. If rent was suspended, yeit it was revived by the subsequent re-entry and enjoyment of the premises by the lessor, until after the rent became due.
    1st. If the lessee,' af ter' eviction, re-enters and enjoys the leased premises until after the rent becomes due, by pucli acts the rent will be revived. If a lessor evicts his lessee, it is in Ids option to be wholly discharged from all future rent; or, if for his benefit, he may re-enter and continue his lease.- — QUb , Treat. on action of debt, 429,430.
    2d. There is a plain and great difference between the suspension, and the extinguishment of a right. A suspen§ion of a right is only a temporary obstruction to the remedy for the recovery thereof. An extinguishment of a right is a perpetual bar. .
    
    To apply this distinction to the present case. The right to reco ver rent may he suspended, or extinguished. Rents are said to be suspended, or not in esse for a time, and in the law phrase, “et tune dormiuntf’ as where the lessor enters and evicts, or expels the lessee of any part of the leased premises; such acts will suspend the whole rent during the time of such eviction or expulsion.
    
    But in this case the rent may be revived, or awakenedj as where the lessee, after tortious entry and eviction, or expulsion, re-enters and enjoys the premises until after he rent becomes due„ Rents are said to be extinguished? 
      or not in esse, or extinct, or dead, or lost forever, and in the law phrase, «eí tune moriuntur,” and will never revive; as where the whole premises are evicted, or recovcred at law, by a stranger by an elder title. If only part of the premises are evicted, or recovered, at law, by a stranger, by an elder title, there will be an apportionment, Bro. Ah. 21, pi. 314. Gill). Evid. 243. Co. Litt. 147. h. 313. a. 11 Vin. Ah. til. Extinguishment, 456.
    
    In ejectment, on condition of re-entry for non-payment of rent, proof of actual entry and ouster is not necessary, nor is it necessary to prove demand of rent since the statute of 4 George II. ch. 28, winch gives ejectment without demand or re-entry. The law was so before the statute. <~Runnington, 21. L. Ray.'7b0. 8. C. Salk. 259. 1 Vent. 332. 1 JYcls. Ab. 654. 3 Blk. Com. 206, bottom, 233. Dougl. 469. Sheridan’s Practice, 514 to 517.
    Statutes respecting rents. Statute 32 Henry VIII. ch. 37, executors of tenants in fee of rents shail have debt or distress for the arrears — husbands seized in right of their wives, or tenant per autre vie, after the death of the wife, or cestui que vie may distrain or have debt for arrears. — id. s. 3.
    Statute 4 Ann. ch. 16, s. 10. — Tenants shall not be prejudiced by payment of rent to a grantor before notice of the grant.
    Statute 8 Ann. ch. 14. — Goods liable to distress not to be taken in execution without paying the arrears, — Action of debt given for arrears upon a lease for life.
    
    Statute 4 George II. ch. 28. — Tenants holding over after demand, to pay double rent. — Ejectment may be delivered where half a year’s rent is in arrear.
    Statute 11 George II. ch. 19. — Tenants giving warning, and not quitting, to pay double rent. Crops grow-, ing may bo distrained. Where the demise is not by deed, rent may be recovered by an action on the case for use and occupation. Penalty on tenants concealing ejectments from their landlords. Landlords may be made defendants with or without tenants.
    Note. In the special verdict in case of Calvert’s lessee us. Eden, et al. (May 1789,) 2 Harris <§• McHenry’s Rep. 290, it is found that this last statute extends to Maryland.
    The following point was submitted for the court’s opinion thereon, to wit:
    Whether the plaintiff, to support the present ejectment under the statute of 4 George SI. ch. 28. entitled, «An act for the more effectual preventing frauds committed by tenants, and for the more easy recovery of rents, and the renewal of leases,” is obliged to prove, on the trial, the three following facts:
    1st. That he, the lessor of the plaintiff, demanded the rent on the demised premises.
    
      2d. That the lessor of the plaintiff demanded the rent on the day on which it became due in virtue of the lease by Charles Midgely, son of John, to George Lindenberger, 011 the 5tll of August 1780.
    Sd. That the lessor of the plaintiff’s demand of the rent was for the exact sum due for the rent.
    
      Cooke, for the plaintiff.
    
      Martin, (Attorney General,) for the defendants.
    
      
       These notes wave made by the lessor of the plaintiff,
    
   The point was waived by the attorney general, ami judgment was entered for the plaintiff for possession^ and costs.  