ACTION FOR RENT BY TENANTS IN COMMON. 289 



of their right to distrain for rent ah'eady due, and this hardship is an 

 incident to that species of property ; all remedy for the rent is not 

 gone, but an action may be clearly brought in the name of all, as before 

 the severance of the reversion an avowry must have been by all 

 {Staveley v. AUcoclc). K^vd. per Patteson J. : "An authority is required 

 to show that, by the severance of the reversion, the rent already due to 

 the six was apportioned." A terre tenajit, holding under two tenants in 

 common, cannot pay the whole rent to one after notice from the other not 

 to pay it ; and if he do, the other tenant in common may distrain for 

 his share {Harrison v. Barnlnj). And per Abbott C.J., in Poivis v. 

 Smith, "It is clear that if there be a joint lease by two tenants in 

 common, reserving an entire rent, the two may join in an action brought 

 to recover the same ; but if there be a separate reservation to each, there 

 must be separate actions. Here, by the original contract, there was 

 a letting of the whole premises by the two tenants in common at an 

 entire rent ; afterwards the rent was severed. It became a question of 

 fact upon the whole evidence, whether the parties thereby meant to 

 enter a new contract, with a separate reservation of rent to each, or 

 whether they meant to continue the old reservation of rent, each of 

 the plaintiffs receiving his own moiety." 



It is a well-known rule that the action for rent by tenants in common 

 is in its nature a joint action, and consequently upon a lease by them 

 the survivors may sue for the whole of the rent, althougli the reserva- 

 tion be to the lessors according to their respective interests {Wattace v. 

 Maclaren). And they can recover an ejectment under the Common 

 Law Procedure Act (1852), on a joint writ, the whole of the property 

 to which they are entitled {Elliss v. Elliss). A tessee ivho under- teccses 

 for tess titan Ms whote estate in the term has a power of distress {Wade v. 

 Marsh), but not where he demises the whole of his interest {Preece v. 

 Carrie). In Parmenter v. Webber the lessee of two farms agreed with 

 the plaintiff that he should have them during the leases for the same 

 price, and remain his tenant, with the stipulation that he should farm 

 according to the tenor of the leases, and incur forfeiture and be paid for 

 the fallows and dung on leaving the farms. The plaintiff took posses- 

 sion, and paid one year's rent growing due after the date of the agree- 

 ment to the sub-lessee, who afterwards distrained for the rent in arrear. 

 The Court held that the agreement did not operate as an underlease, 

 but as an absolute assignment by the defendant to the plaintiff of all 

 the defendant's interest in the farms, and that therefore the defendant, 

 having no reversion left in him, could not legally distrain. 



A demise by a tenant from year to year to another atso to hotdfrom year 

 to year, is in legal operation a demise from year to year during the con- 



u 



