to die before, or on the day on which any rent was or shall be reserved, or made payable on any demise, or lease of any lands, tenements, hereditaments, or premises, which shall determine on the death of such tenant for life, that the executors, administrators, and assigns, of such tenant for life, shall and may, either by action of debt, or by action on the case as for the use and occupation of the said lands or premises, recover from the tenant or undertenant thereof, if such tenant for life shall die on the day on which the said rent was made payable, the whole, or if before such day, then a proportion of such rent, according to the time such tenant for life lived, of the last year, half year, quarter of a year, or other time in which the said rent was growing due, making all just allowances, or a proportionable part thereof respectively and that it shall be lawful(e) for the executors, administrators, or assigns of such tenant for life to distrain for such rent, or proportionable rent, as fully as such tenant for life or his assigns might have done, if such tenant for life had outlived the day on which the said rent was made payable. And by the second section(ƒ) it is enacted, that where any person or persons seised of an estate in fee, or of a lesser estate of freehold in any lands, tenements, hereditaments, or premises, has or have demised, or shall demise the same, or any of them, for one or more life or lives, and such demise shall determine, by the death or failure of such life or lives, before the day on which the rent is made payable, the person or persons having made, or making such demise, shall and may recover from the tenant or undertenant of the premises, or their respective heirs, executors, administrators, or assigns, either by action of debt, or by action on the case, as for the use and occupation of the said premises, a proportionable part of such rent, according to the time such life or lives was or were in being of the last year, half year, quarter of a year, or other time in which the said rent was growing due, making all just allowances, or a proportionable part thereof respectively: and that it shall be lawful for the person or persons, having made(g) or making such demise, to distrain for such proportionable part of said rent as fully as he or they might have done for the whole of such rent, if the life or lives by the failure of whom such demise was determined, had been in full life.

The first section(h) of the Irish Act applies to cases where the les

(e) No similar power to distrain is given by the English Statute.

(f) 23 & 24 Geo. III. c. 46, s. 2, Irish; 4 & 5 Will. IV. c. 22, s. 1, English.

(g) No right to distrain is given by the English Act, 4 & 5 Will. IV. c. 22, s. 1.

(h) 23 & 24 Geo. III. c. 46, s. 1, Irish; 11 Geo. II. c. 19, s. 15, English.

sor, being only tenant for his own life, the interest of the lessee determines by the lessor's death during a current gale; and the second section is applicable to the determination of the interest of a lessee holding pur auter vie, by reason of the death of the cestuique vie during a current gale, and the remedy for the recovery of such fractional portion of the rent is given to the lessor, to whom the rent would have been payable if the lease had continued. No apportionment, however, is expressly allowed by the Irish Statute, where a tenant holding pur auter vie underlets for years, or from year to year, and the underlease determines along with the lessor's estate, by the decease of the cestuique vie in the interval between two rent days; but Lord Hardwicke (i) said he had no doubt that a tenant for ninety-nine years, determinable on lives, would be a tenant for lives within the meaning(j) of the Act. It was decided at law(k), that the personal representatives of tenant in tail who granted a lease which was void against the remainder-man, were entitled to apportionment.

Tenant for life, with leasing power, having demised lands from year to year, in a manner not conformable to his power, upon his decease in the period intervening between two rent-days, an apportionment of the current gale was directed(1) between his personal representatives and the remainder-man. So where tenant for life makes a lease, or creates tenancy which determines with his own life, whether the lands are demised by deed, or are held under an equitable article or accepted proposal, or whether a yearly holding is implied (m) from receipt of rent, on the death of the tenant for life during a current gale, the rent becomes apportionable.

Prior to the Statute 4 & 5 Will. IV. c. 22, unless the tenant's interest determined with the life of his lessor, the rent would not have been apportionable. Adam Shaddick, being seised in fee, died in January, 1833, having devised certain premises to his wife for her life, and she died in the month of August following: the lands at the time of the husband's death were occupied (n) by yearly tenants, commencing at Lady-day, and as his omission to give them notice to quit constituted

(Paget v. Gee, 3 Swa. 694; 2 Ambl. by Blunt, 807, App.; 1 Ambl.

198.

(j) 11 Geo. II. c. 19, s. 15, English, corresponding to the first section of the Irish Statute, 23 & 24 Geo. III. c. 46; but see 4 Evans' Statutes, 176, note to this Act.

(k) Whitfield v. Pindar, cited, 2 Bro. Cha. Ca. 662; and by Lord Eldon in

Hawkins v. Kelly, 8 Vesey, 308; Paget v. Gee, 3 Swa. 694; 1 Swa. 341; 2 Ambl. 807; 1 Ambl. 198; Burn's Justice, title " Distress."

(1) Clarkson v. Lord Scarborough, 1 Swa. 354; Symons v. Symons, 6 Madd. 207.

(m) 4 Jarman's Conv. 340.

(n) Botheroyd v. Woolley, 5 Tyrw. 522; 1 Gale's Rep. 66, S. C.

an implied demise for another year, and as the wife could not have put an end to the holdings of the tenants during the continuance of her estate, it was decided that her administrator was not entitled to any apportionment of the half-year's rent which accrued due at Michaelmas, subsequently to her decease, because the interest of the tenants did not determine with her life; but if she had lived for a sufficient period to enable her to determine the yearly holdings by notice to quit, new tenancies would have arisen under her, which would have entitled her administrator to an apportionment of the rent, in case of her death in the interval between two rent-days.

Even in cases to which the Statute is not applicable, if tenants pay their rent for the whole period of their occupation, a Court of Equity will consider that such payment was made for the use of the person from whom the enjoyment of the demised premises was derived. A rector having made a composition for his tithes, payable annually, died in the middle of the year, and the composition for the whole year having been received (o) by the succeeding rector, an apportionment was decreed in favour of the executrix of the deceased rector.

Where a tenant for life died in the middle of a year, it was ruled(p) that land-tax, quit-rents, and other annual charges should be borne exclusively by the estate of the remainder-man, as they had incurred after the death of the tenant for life, the Statute being inapplicable to such cases.

A lease being made by a Master in Chancery, pursuant to the order of the Court, of part of a lunatic's estate, for seven years pending the lunacy, subject to a rent payable half-yearly in May and November: the lunatic, who was only tenant for life, died on the 25th of October, before any rent had become due under the lease. The committee of the lunatic having distrained for a proportionable part of the rent of the current gale, it was decided(q) that such distress could not be supported, because the remedy was only given by the Statute to the personal representatives or assigns of the tenant for life, and the committee having no interest in the estate, except as bailiff, his authority ceased on the death of the lunatic.

15. The English(r) Statute, 4 & 5 Will. IV. c. 22, s. 1, after reciting, that doubts had been entertained whether the provisions of the

(0) Hawkins v. Kelly, 8 Vesey, 308; Aynsley v. Wordsworth, 2 Ves. & B. 331; Oldham v. Hubbard, 2 Yo. & Coll. in Cha. 209.

(p) Sutton v. Chaplin, 10 Vesey, 66.

(q) Persse v. Persse, Alc. & Nap. 35. (r) 4 & 5 Will. IV. c. 22, s. 1. The first section of this Act does not extend to Ireland.

Statute(s) 11 Geo. II. c. 19, s. 15, apply to every case in which the interests of tenants determine on the death of the person by whom such interests have been created, although every such case is within the mischief intended to have been remedied and prevented by the said recited Act; and it was therefore desirable that such doubts should be removed by a declaratory law: and after further reciting, that by law, rents, annuities, and other payments, due at fixed or stated periods, are not apportionable (unless express provision be made for the purpose), from which it often happens that persons (and their representatives), whose income is wholly or principally derived from these sources, by the determination thereof before the period of payment arrives, are deprived of means to satisfy just demands, and other evils arise from such rents, annuities, and other payments not being apportionable, enacts, that rents reserved and made payable on any demise, or lease of lands, tenements, or hereditaments, which have been and shall be made, and which leases or demises determined, or shall determine on the death of the person making the same (although such person was not strictly tenant for life thereof), or on the death of the life or lives for which such person was entitled to such hereditaments, shall, so far as respects the rents reserved by such leases, and the recovery of a proportion thereof by the person granting the same, his or her executors or administrators (as the case may be), be considered as within the provisions of the said recited Act.

By the second seetion of the Statute(t), it is enacted, that from and after the passing of the Act(u), all rents-service reserved on any lease by a tenant in fee, or for any life-interest(v), or by any lease granted under any power [and which leases shall have been granted after the passing of the Act, 16th June, 1834], and all rents-charge, and other rents, annuities, pensions, dividends, moduses, compositions, and all other payments of every description, in the United Kingdom of Great Britain and Ireland, made payable or coming due at fixed periods, under any instrument that shall be executed after the passing of this Act, (being a will or testamentary instrument) that shall come into operation after the passing of this Act, shall be apportioned so and in such manner, that on the death of any person interested in any such rents, annuities, pensions, dividends, moduses, compositions, or other payments, as aforesaid, or in the estate, fund, office, or benefice, from or in

(s) 11 Geo. II. c. 19, s. 15, English; 23 & 24 Geo. III. c. 46, s. 1, Irish. (t) 4 & 5 Will. IV. c. 22, s. 2, English and Irish.

(u) 16th of June, 1834.

(v) The word "life" appears to be inserted by mistake for the word "less."

respect of which the same shall be issuing or derived, or on the determination, by any other means whatsoever, of the interest of any such person, he or she, and his or her executors, administrators, or assigns, shall be entitled (w) to a proportion of such rents, annuities, pensions, dividends, moduses, compositions, and other payments, according to the time which shall have elapsed from the commencement, or last period of payment thereof respectively (as the case may be), including the day of the death of such person, or of the determination of his or her interest, all just allowances and deductions in respect of charges on such rents, annuities, pensions, dividends, moduses, compositions, and other payments, being made. And that every such person, his or her executors, administrators, and assigns, shall have such and the same remedies at law and in equity, for recovering such apportioned parts of the said rents, annuities, pensions, dividends, moduses, compositions, and other payments, when the entire portion of which such apportioned parts shall form part(x), shall become due and payable, and not before, as he, she, or they would have had, for recovering and obtaining such entire rents, annuities, pensions, dividends, moduses, compositions, and other payments, if entitled thereto; but so that persons liable to pay rents reserved by any lease or demise, and the lands, tenements, and hereditaments comprised therein, shall not be resorted to for such apportioned parts specifically as aforesaid; but the entire rents of which such portions shall form a part, shall be received and recovered by the person or persons who, if this Act had not passed, would have been entitled to such entire rents and such portions shall be recoverable from such person or persons, by the parties entitled to the same under this Act, in any action or suit, at law or in equity.

By the third section, it is enacted, that the provisions in this Act contained shall not apply to any case in which it shall be expressly stipulated that no apportionment shall take place, or to annual sums made payable in policies of assurance of any description.

The first section(y) of this Statute does not extend to Ireland, but being merely a declaratory enactment introduced for the purpose of removing doubts on the construction of the English(z) Act, 11 Geo. II. c. 19, s. 15, it will probably be received as an exposition of the meaning of the analogous (a) Irish Statute. The second section of the 4 & 5

(w) See an able dissertation on this Statute in the 16th volume of the Law Magazine, p. 88; and see 1 Hayes on Conveyancing, 334, 5th edition.

(x) Oldershaw v. Holt, 4 P. & Dav. 307-313, by Coleridge, J.; 12 Ad. &

Ell. 590.

(y) 4 & 5 Will. IV. c. 22, s. 1, English.

(z) 11 Geo. II. c. 19, s. 15, English. (a) 23 & 24 Geo. III. c. 46, Irish.