When the person to whom rent was payable had a freehold interest in the rent, as no defense to the claim for rent. Barnett v. Clark, 225 Mass. 185, 114 N. E. 317.

17(1. Heart v. East Tennessee Brewing Co., 121 Tenn. 69, 19 L. R. A. (N. S.) 964, 130 Am. St. Rep. 753, 113 S. W. 364; The Stratford, Inc. v. Seattle Brewing & Malting Co., 94 Wash. 125, L. R. A. 1917C, 431, 162 Pac. 31; In Koen v. Fairmont Brewing Co., 69 W. Va. 94, 70 8. E. 1098, it was decided, that even if the adoption of prohibition was otherwise ground for relief from rent, it was not ground therefor if the tenant continued in possession.

In Mccullough Realty Co. v. Laemmle Film Service, - Iowa, -, 165 N. W. 33, it was held that when there was a lease for the purpose of carrying on a business in

" film theatre" supplies, a change in the law prohibiting such business relieved from liability for rent.

17e. Greil Bros. v. Mabson, 179 Ala. 414, 43 L. R. A. (X. S.) 664. 60, So. 876; Kahn v. Wilhelm, 118 Ark. 239, 177 S. W. 403; Bruns wick-balke-collender Co. v. Seattle Brewing & Malting Co., 98 Wash. 12, 167 Pac. 58.

17f. Standard Brewing Co. v. Weil, 129 Md. 487, 99 Atl. 661 ; Gaston v. Gordon, 208 Mass. 265, 94 N. E. 307; Teller v. Boyle, 132 Pa. 56, 18 Atl. 1069; Miller v. Mc-guire, 18 R. I. 770, 30 Atl. 966; Burgett v. Loeb, 43 Ind App. 657, 88 N. E. 346.

A like view was adopted when the city was made "dry'" by an election held after the making of the nonpayment thereof on demand was considered, at common law, a disseisin of the rent, and consequently the real action of novel disseisin was the proper form of proceeding by which to recover it.18 By statute, however, an exception to this rule was made in favor of the executors and administrators of tenants in fee of rents, who were authorized to sue in debt for arrears of rent due to their decedents.19

Since the abolition of real actions, it has, in England, been decided that an action of debt,20 or its equivalent, will lie in favor of the owner of a rent charge in fee, on the theory that such an action did not lie at common law owing merely to the fact that the higher remedy by real action existed during the continuance of the freehold.21 the lease, the local option law under which the election was held being in force at the time of its making. Houston Ice & Brewing Co. v. Keenan, 99 Tex. 79, 88 S. W. 197.

18. Litt. Sec.Sec. 233-240.

19. 32 Hen. VIII. c. 37 (A. D. 1540); Co. Litt, 162a; Harrison, Chief Rents, 180.

A tenant of land in fee simple who has leased for years has been held not to be a tenant in fee of the rent reserved on the lease for years, so that the statute will authorize an action of debt for the rent by his executors. Prescott v. Boucher, 3 Barn. & Adol. 849.

20. Though the distinct forms of action known as " debt," "covenant," and "assumpsit" no longer exist in many states, they represent, as connected with the recovery of rent, distinctions of a substantive character in regard to the right and basis of recovery, and consequently, even in " code" states, a knowledge of the particular circumstances appropriate to the bringing of one rather than the other of these actions is most desirable.

21. Thomas v. Sylvester, L. R. 8 Q. B. 368, 2 Gray's Cas. 704; Christie v. Barker, 53 Law J. Q. B. 537; Searle v. Cooke, 43 Ch. Div. 519. See In re Herbage Rents [1896] 2 Ch. 811. The correctness of these decisions has, however, been questioned, on the ground that the duty of paying rent was, at common law, imposed on the land alone, - a " real obligation," - and hence the mere abolition of real actions could not make it a personal obligation. See the learned review of the subject by T. Cyprian Williams, Esq., 13 Law Quart. Rev. 288, and the references therein to Ognel's Case, 4 Coke, 48b.

In the case of a rent for life, whether rent reserved on a lease for life or a rent charge granted for life, the tenant of the land was regarded as personally liable for the rent, and, while this personal liability could not be enforced during the existence of the life interest in the rent, because temporarily superseded by the existence of the "real" obligation on the part of the land, upon the termination of such real obligation by the termination of the life interest, the tenant's personal obligation became enforceable by the owner of the rent, or his personal representatives.22

The right of one leasing for years to sue for arrears of rent reserved in an action of debt was recognized at an early date in the history of that action,23 and that the action is available for this purpose has never been questioned.24 The action will also lie for rent reserved upon a tenancy at will.25

Since the common-law action of debt is not founded upon a contract, but is rather a remedy for the recovery of a specific sum in the possession of the defendant belonging to the plaintiff,26 the tenant, in order to be liable therein, need not have contracted to pay the rent, but he is made liable as having taken

22. Ognel's Case, 4 Coke, 49a. Gilbert, Rents, 98; Co. Litt. 162a, Hargrave's note; 13 Law Quart. Rev. 291.

By statute (8 Anne, c. 14, Sec. 4, A. D. 1709), the right was given to bring an action of debt for the recovery of rent service reserved upon a lease for life, even during the lease, but it applied in no case where the relation of landlord and tenant did not exist. Webb v. Jiggs, 4 Maule & S. 113. There are similar statutes in several states. See 1 Tiffany, Landlord & Ten. p. 1819, note 7.

23. 2 Pollock & Maitland, Hist. Eng. Law, 209.

24. Litt. Sec.Sec. 58, 72; Co. Litt, 47b; Gilbert, Rents, 93; Trapnall v. Merrick, 21 Ark. 503; Howland v. Coffin, 26 Mass. (9 Pick.) 52; Id, 29 Mass. (12 Pick.) 125; Out-toun v. Dulin, 72 Md. 536, 20 Atl. 134; Mckeon v. Whitney, 3 Denio, 452; Mcewen v. Joy, 7 Rich. Law (S. Car.) 33; Elder v. Henry, 34 Tenn. (2 Sneed) 81.

25. Litt. Sec. 72.

26. Ames, Lectures on Legul History, 88.