78. Bottling v. Martin, 1 Camp. 317; Pollock v. Stacy, 9 Q. B. 1033.

79. Logan v. Barr, 4 Har. (Del.) 546.

80. McKinney v. Reader, 7 Watts (Pa.) 123; Kiester v. Mul-ler, 25 Pa. St. 481.

And see Ross v. Schneider, 30 Ind. 423; Overman & Baxter v. Geo. P. Sanborn & Co., 27 Vt. 54.

81. Baker v. J. Maier & Zober-lein Brewery, 140 Cal. 530, 74 Pac. 22; Marks v. Chumos, 82 Kan. 562, 109 Pac. 397 (semble); Edwards v. Spalding, 20 Mont. 54, 49 Pac. 443; Dewey v. Payne, 19 Neb. 540, 26 N. W. 248; Tyler

Commercial College v. Stapleton, 33 Okla. 305, 125 Pac. 443; In re Wiley's Estate, 14 Phila. (Pa.) 152.

82-83. Chicago Attachment Co. v. Davis Sewing Mach. Co., 142 111. 171, 15 L. R. A. 754, 31 N. E. 438; Hunt v. Coe, 15 Iowa 197; Nally v. Reading, 107 Mo. 350, 17 S. W. 978; Culver v. Van Valkenburgh, 60 Ore. 447, 119 Pac. 753, and an excellent editorial note in 13 Columbia Law Rev. at p. 150.

Compare Leadbetter v. Pew-therer, 61 Ore. 168, Ann. Cas. 1914B, 464, 121 Pac. 799 and see post, Sec. 547.

- (d) Assignor's rights and liabilities. The liabilities of the lessee, based upon the relation of landlord and tenant, as distinguished from those based on contractual stipulations, that is, as it is technically expressed, those based on "privity of estate" as distinguished from those based on "privity of contract," necessarily continue only so long as that relation continues, and consequently come to an end upon the lessee's assignment of the leasehold interest, the assignee then becoming tenant in the lessee's stead.89 But it is necessary, in order that the lessee be thus relieved from his liabilities based on privity of estate, that the assignee be accepted by the landlord as tenant, either by express assent to the assignment, or by an act indicating assent, such as the receipt of rent from the assignee, since the tenant has no right to destroy the tenancy, into which he has entered, without the landlord's assent.90 So it has been held that an action for use and occupation, which is based on the relation of tenancy, that is, on privity of estate, as well as on contract,91 will lie against the lessee although he has assigned his interest, provided the assignee has not been accepted as tenant.92

84. See e. g., Willison v. Wat-kins, 28 U. S. (3 Pet.) 50, 7 L. Ed. 599; McLean v. Rockey, 3 McLean, 235, Fed. Cas. No. 8,891; Barr v. Bimford, 6 Blackf. (Ind.) 335, 38 Am. Dec. 146; McNeil v. Ames, 120 Mass. 481; Buhl v. Kenyon, 11 Mich. 249, 83 Am. Dec. 738; Smith v. Brinker, 17 Mo. 148, 57 Am. Dec. 265; Northern Bank v. Roosa, 13 Ohio, 334, 82 Am. Dec. 444; Joslin v. Ervien, 50 N. J. L. 39, 12 Atl. 136; Sowers v. Vie, 14 Pa. 99; Kile v. Giebner, 114 Pa. 381, 7 Atl. 154; Thomas' Lessee v. Blackmore, 13 Tenn. (5 Yerg.) 113.

85. State v. Martin, 82 Tenn. (14 Lea) 92, 52 Am. Rep. 167;

Wittman v. Milwaukee, L. S. & W. R. Co., 51 Wis. 89, 8 N. W. 6; Ozark v. Adams, 73 Ark. 227, 83 S. W. 920.

86. Post, Sec. 556.

87. Post, Sec.Sec. 561-565.

88. Post, Sec.Sec. 550-560.

89. Walker's Case, 3 Coke, 22 a; Marsh v. Brace, Cro. Jac. 334; Mills v. Auriol, 1 H. Bl. 433; Auriol v. Mills, 4 Term R. 94; Wall v. Hinds, 70 Mass. (4 Gray) 256, 64 Am. Dec. 64; McBee v. Sampson, 66 Fed. 416; Consolidated Coal Co. v. Peers, 166 111. 361, 38 L. R. A. 624, 46 N. E. 1105; Bliss v. Gardner, 2 111. App. (2 Bradw.) 422.

The principle that liabilities based on privity of estate cease to burden the lessee after an assignment by him finds an application in the rule that an action of debt for rent, being based, not on a contract to pay rent, but rather on the theory that the tenant has takes the profits due by the land, will not lie against the lessee after an assignment by him, and the acceptance by the lessor, either express or implied, of the assignee as his tenant.93 And other liabilities from which the lessee is relieved by an assignment, assented to by the landlord, may be suggested, such as that for waste.

Upon an assignment by a lessee, though, as we shall presently see, the assignee becomes liable upon the express covenants of the lessee which "touch and concern" the land,94 the lessee remains liable on such covenants, as well as on others, for the reason that one who has subjected himself to a contractual liability cannot divest himself thereof by his own act.95 In

90. Auriol v. Mills, 4 Term R. 94; Wadham v. Marlowe, 8 East, 315, note; Consumers' Ice Co. v. Bixler, 84 Md. 4S7, 35 Atl. 1086; Harmony Lodge v. White, 30 Ohio St. 569, 27 Am. Rep. 492; Montgomery v. Spence, 23 U. C. Q. B. 39.

91. See post, Sec. 414.

92. Shine v. Dillon, 1 Ir. R. C. L. 277.

93. See cases cited Sec. 413, notes 26-28.

94. See post, Sec. 56(b).

95. Baynton v. Morgan, 21 Q. B. Div. 101, 22 Q. B. Div. 74; other words the liabilities of the lessee based on privity of contract continue. The fact that the landlord, either expressly or impliedly, consents to such assignment, as when he gives his consent to the assignment in accordance with a requirement in the lease of such consent,96 or he accepts rent from the assignee,96a does not affect the lessee's continuing liability on his stipulations. And an express consent in the instrument of lease to the assignment of the leasehold has no greater effect.97 This principle, that the lessee remains liable on his covenants, is most frequently applied in the case of a covenant to pay rent, upon which the lessee continues liable, and which may be enforced against him in case his assignee fails to perform his duty of paying the

Evans v. McClure, 108 Ark. 531,158 S. W. 487; Samuels v. Ottinger, 169 Cal. 209, Ann. Cas. 1916E, 830, 146 Pac. 638; Garner v. Byard. 23 Ga. 289, 68 Am. Dec. 527; Consolidated Coal Co. v. Peers, 166 111. 361, 46 N. E. 1105, 38 L. R. A. 624, rev'g 59 111. App. 595; Heller v. Railey, 28 Ind. App. 555, 63 N. E. 490; Barhydt v. Burgess, 46 Iowa, 476; Fryszka v. Prybeski. 139 Mich. 461, 102 N. W. 977; Hol-liday v. Noland, 93 Mo. App. 403, 67 S. W. 663; Jackson v. Brown-son, 7 Johns. (N. Y.) 227, 5 Am. Dec. 258; Washington Natural Gas Co. v. Johnson, 123 Pa. 576, 16 Atl. 799, 10 Am. St. Rep. 553; Jones v. Parker, 163 Mass. 564, 40 N. E. 1044, 47 Am. St. Rep. 485: Shaw v. Partridge, 17 Vt. 626. See, as to the continuing liability for rent, post Sec. 407 note 59-59d. 96. Bonetti v. Treat, 91 Cal. 223, 14 L. R. A. 151, 27 Pac. 612; Rector v. Hartford Deposit Co., 190 111. 380, 60 N. E. 528; Jordan v Indianapolis Water Co., 159 Ind. 337, 64 N. E. 680; Pfaff v. Golden, rent.98 It has also been applied, or its application suggested, in the case of a covenant against waste, so as to render the lessee liable for waste committed by his assignee,99 and in the case of covenants to repair,1 to pay taxes,2 to drill for oil,3 and not to build on adjoining premises.4