98. The Richmond v. Cake, 1 App. Dist. Col. 447: Hall v. Joseph Middleby, 197 Mass. 485, 83 N. E. 1114; Alger v. Kennedy, 49 Vt. 109, 24 Am. Rep. 117 (semble). See Hyman v. Jockey Club etc. Co., 9 Colo. App. 299, 48 Pac. 671.

99. Ryerse v. Lyons, 22 Up. Can. Q. B. 12; Giles v. Comstock, 4 X. Y. 270, 53 Am. Dec. 374; Hunter v. Reiley, 43 N. J. L. 480; Gugel v. Isaacs, 21 N. Y. App. Div. 503, 48 N. Y. Supp. 594.

1. Schienle v. Eckels, 227 Pa. 305, 76 Atl. 15.

2. Ante, Sec. 58(b).

3. Roper v. Lloyd, T. Jones 148; Hunt v. Cape, 1 Cowp. 242; Lawrence v. French, 25 Wend. (N. Y.) 443; Bennett v. Bittle, 4 Rawle (Pa ) 339.

4. Cuthbertson v. Irving, 4 Hurlst. & N. 742; Wheelock v. Warschauer, 34 Cal. 265; Stub-bings v. Evanstown, 136 I11. 37, 11 L R. A. 839, 26 N. E. 577; George v. Putney, 58 Mass. (4 Cush.) 351, 50 Am. Dec. 788; Home Life Ins. Co. v. Sherman, 46 N. Y. 370; Friend v. Oil Well Supply Co., 165 Pa. 652, 30 Atl. 1134; Maxwell v. Urban, 22 Tex. Civ. App. 565, 55 S. W 1124.

2 R. P.-20 structive,5 and the tenant assumes, by attornment or otherwise, the relation of tenant to the paramount owner and as such becomes liable for rent, this liability is under a different demise, and the rent is a different rent, even though similar in amount.

An eviction under paramount title, like an eviction by the landlord, does not affect the tenant's liability for rent which became due before the eviction occurred, since this rent was fully earned.6"7 This would seem properly to be the case even though the rent is payable in advance, and the eviction occurs before the end of the period for which it is payable.8

If the eviction under paramount title is partial merely, that is, from a part only of the leased premises, the rent is apportioned and the tenant is relieved from liability only for an amount proportioned to the value of that part,9 the rule being different in this regard when the partial eviction is under paramount title from that which controls when it is by the landlord.

- Untenantable condition of premises. Since, as before stated, the landlord is under no obligation to the tenant as regards the condition of the premises, and their fitness for the latter's use and occupation, either at the time of the lease or subsequently thereto,10 it would seem that the tenant should not be relieved from liability for rent in the absence of an express stipulation or a statutory provision in that regard, by reason of defects in the premises. And that this is so is attested by the numerous decisions at common law to the effect that even the destruction of the buildings on the leased premises will not have that effect.11 In New York, however, the tenant has been regarded as relieved from liability by reason of the "untenantable" condition of the premises, the statute before referred to, providing that the tenant shall, be relieved from rent if the building is destroyed or so injured by the elements as to be untenantable and unfit for occupancy, being apparently extended to cases in which the building becomes untenantable without being destroyed or injured.12 In Michigan the tenant has been relieved from liability for rent on account of an untenantable condition existing at the time of his entry under the lease, apparently without reference to any statutes.13 Occasionally, particularly in New York, the existence of an untenantable condition, which the landlord might have removed by making repairs on the premises, but which he fails to remove, has been referred to as relieving the tenant from liability for rent, on the theory that it constitutes an eviction by him,14 and there is a distinct tendency on the part of the courts, because eviction, by the common law precedents, relieves the tenant from rent, to apply the term to any condition which is regarded as sufficient to relieve the

5. Ante, Sec. 58(a).

6-7. 2 Rolle, Abr., Rent (0.); Grobham v. Thornborough, Hob. 82; Pepper v. Rowley, 73 I11. 262; Fitchburg Cotton Manufactory Corp. v. Melven, 15 Mass. 268; Giles v. Comstock, 4 N. Y. 270, 53 Am. Dec. 374.

8. Giles v. Comstock, 4 N. Y. 270, 53 Am. Dec. 374. But see ante, this section, note 98.

9. Halligan v. Wade, 21 I11. 470, 74 Am. Dec. 108; Fillebrown v. Hoar, 124 Mass. 580; Cheairs v. Coats, 77 Miss. 846, 50 L. R. A. Ill, 78 Am. St. Rep. 546, 28 So. 728; Christopher v. Austin. 11 N. Y. 216; Fifth Avenue Building Co. v. Kernochan, 221 N. Y. 370, 117 N. E. 579; Poston v. Jones, 37 S, C. (2 Ired. Eq.) 350, 38 Am. Dec. 683; Tunis v. Grandy, 22 Gratt. (Va.) 109: Mayor of Swansea v. Thomas, 10 Q. B. Div. 48. But see Wilson v. Sale, 41 Pa. Super. 566. 10. Ante, Sec. 51.

11. Ante, this section, notes 81-85.

12. Meserole v. Hoyt, 161 N. Y. 59, 55 N. E. 274; Vann v. Rouse, 94 N. Y. 401. So in Minnesota under a substantially similar statute. Bass v. Rollins, 63 Minn. 226, 65 N. W. 348; Dam-kroger v. Pearson, 74 Minn. 77, 76 N. W. 960; Kafka v. Davidson, 135 Minn. 389, 160 N. W. 1021. See with a stipulation for the making of repairs or improvements by the landlord, and in the majority of cases the stipulations have been regarded as independent.15 But there are a number of decisions in which, without any discussion of the matter on principle, the landlord's failure to comply with a stipulation for the making of repairs or improvements during the tenancy has been assumed to justify the tenant in abandoning the premises and refusing to pay rent.16 Likewise it has occasionally been decided that the landlord's failure to comply with his contract to furnish heat or power excuses the tenant from paying rent.17

Tenant in this respect.14a So an eviction has been said to occur in the case of the landlord's failure to furnish heat to the apartment leased, not only when the lease contained a stipulation requiring the lessor to furnish heat,14b but also even in the absence of such stipulation, when the landlord's control of the heating apparatus and the custom of the community led the tenant to anticipate that heat would be furnished.14c The application of the term, however, to the case of such a mere omission on the part of the landlord is, it is conceived, to be deprecated. Even conceding the desirability of relieving the tenant from liability for rent whenever the premises become untenantable, it is undesirable to confuse the law of eviction for the sake of a merely nominal compliance with the precedents of the common law.14d