¶1We are satisfied a distress cannot be maintained in a case like this, for the reason, that the landlord has no right to determine for himself what proportion the rent of the premises actually occupied,' bears to the rent of the entire premises. His remedy is by an action for use and occupation, in which a recovery can be had on a quantum meruit. It is true, the lessee might bring his action to eject the intruder, or tenant holding over a portion of the demised premises, and recover the possession of such portion, but until that is done, the rent cannot be apportioned by the landlord himself, and he permitted to distrain for it. This would be making him the judge in his own cause, of the pro rata compensation to which he was entitled. Whether the amount distrained for, was a fair price for the use of that portion of the demised premises actually occupied by him, is not for him to determine. There is no mode provided, by which the proportionate value to the tenant of the different parts of the premises can be ascertained. To authorize a distress, the rent must be certain and specific.
¶2In Sudwell v. Newman, 6 Term Rep. 458, it was decided that a lessee is not bound to test his right of entry by suit, as the only legal evidence of a breach of the covenant. So in this case, the lessee, Hatfield, was not bound to test his right to that portion of the premises demised, which were in the occupancy of Burns.
¶3The failure of the landlord to give possession of the whole premises leased, as he had agreed to do, deprives him of the right which the law conceded to him of distraining for the rent of that portion of the premises actually occupied, and the only remedy the landlord has, is by an action for use and occupation of such portion. The landlord himself has put it out of the power of the tenant to tender the amount due.
¶4The case of Lawrence v. French, 25 Wendell, 443, is to this effect.
¶5We are referred by the counsel for appellee to the case of Gardner v. Ketellas and Me Carthy, 3 Hill, 330, as a case in point. That case does not conflict with the case cited from Wendell. The opinion in both these cases was delivered by Chief Justice Nelson, and in the case from third Hill, he refers to the case of Lawrence v. French. The case in third Hill was an action on the case, for the neglect of the defendants to put plaintiff in possession of the demised premises, then occupied by a tenant under a prior lease, and holding over. The court said very correctly, if the party holding over is the wrong doer, the remedy of the lessee is as perfect and effectual to dispossess him after, as that of the lessor was before, the execution of the lease.
¶6This case is a very different one. Here the lessee was put in possession, but not of the whole of the premises demised, and the question is, as to the remedy of the landlord under such a state of facts. The case from twenty-fifth Wendell, establishes the proposition, that it is not by distress, and for the plain reason, that the landlord has no authority to apportion the rent, and proceed for it, in this summary way.
¶7The judgment of the Superior Court is reversed, and the cause remanded.
¶8Judgment reversed.