attacked on such grounds as fraud or mistake, and such attack must be by direct action, brought for that purpose.

§ 346. Lease of real and personal property by same contract. In leases for dairy purposes, it sometimes occurs that all the property-cows, dairy utensils, wagons, and other personal property-is rented, with the use of the land for pasture, at a money rental, entire; and it not unfrequently occurs that a price for the term, per cow, is the measure of the entire rental. How any action for recovery of possession of the land, in case the rent remains unpaid when due, can be maintained, is not clearly apparent; certainly it will be difficult, in such cases, to enforce the provisions for summary ejectment of the tenant, provided by the laws against tenants holding over, which ordinarily form a part of the statutes of the several States, known as the Forcible Entry and Unlawful Detainer Acts.1

1 Cary v. Welch, Supreme Court of California, July Term, 1874. In this case, these questions arose: a lease was made by plaintiff to defendant " of the following described property, viz., one hundred cows, one wagon, and all the usual and necessary dairy fixtures and utensils to carry on said dairy of one hundred cows, together with sufficient use of the following described land, [describing it] to feed said cattle, and carry on said dairy. To have and hold for the term of three years, to wit, from the first day of October, 1872, to the first day of October, 1875; yielding and paying therefor the rent of $2,700 per year, or the sum of $8,100 for said term of three years." The lease also contained the usual covenants, on the part of the tenant, to pay the rent, and, in default thereof, to yield possession. An installment of rent fell due; defendant did not pay it; demand was duly made, and, under the Forcible Entry and Unlawful Detainer Act, suit was commenced to eject the tenant from the land. Defendant, in due form, demurred to the complaint; and the objection was raised, and at every stage of the trial insisted upon, that such an action could not be maintained.

The Court below overruled these objections, upon the ground that the realty was leased, that the lease contained the usual covenant of forfeiture for nonpayment of rent, and, upon due demand, there having been a refusal on the part of the tenant to respond at all to the demand for rent, it must result that there had occurred such a forfeiture as the lease provided for.

From the judgment of the Court below an appeal was taken to the Supreme Court, where the propositions involved were fully argued and considered by the Court.

The first proposition involved was that the action of forcible entry and unlawful detainer is for real property only. (Taylor's Landlord and Tenant, Sec. 786.)

Second. There is no means of determining the precise amount of rent which was due for the use of the land. To work a forfeiture, there must be some definite sum due and unpaid, and it is not enough that some rent must be payable;

§ 347. Landlord's loss of rent by interference with property.-Interference by the landlord with any of the personal property leased might endanger right to rent of realty. The peculiar danger of leasing personal and real property under one contract becomes apparent from another point of view. It might become questionable whether, under any form of action, the contract for payment of rent could be enforced. If the forfeiture of the lease occur through non-payment of rent, the forfeiture, to be effective, must be entire. There could be no forfeiture

from the necessities of such cases, the amount must be determined or determinable. (Taylor's Landlord and Tenant, Sec. 786; Doe v. Wandlass, 7 T. R. 117; Co. Litt. 202a; Jackson v. Kipp, 3 Wend. 230.)

Third. Before the landlord could enter for the non-payment of rent, he must have made a formal demand for the precise sum due. (Taylor's Landlord and Tenant, Sec. 493; Doe v. Paul, 3 C. & P. 613; Van Renselaer v. Jewett, 2 N. Y. 147; O'Connor v. Kelly, 41 Cal. 432.)

Each of these propositions was sustained, and, judgment being reversed, the cause was remanded, with directions to the Court below to dismiss the action. The chief objections to this form of action in the premises appear also applicable to ejectment, and, had the landlord resorted to that, he might still have encountered the same difficulties. To constitute a forfeiture for non-payment of rent, at common law, it was requisite, among other things, that the demand should have been for the precise sum due. (1 Saunder's Rep. 287, Note 16; 1 Leon, 305; Fabian & Windsor's Case, Cro. Eliz. 209; Taylor's Landlord and Tenant, Sec. 493.) And the statutes of the various States, although relaxing the rigor of the ancient rule as to place, time, and manner of making the demand, do not, in terms or by implication, relieve the landlord from formal demand of the precise sum due.

It is true that the statutes of some of the States have substituted the service of a declaration in ejectment for a formal demand of rent, but an analysis of these statutes shows that the complaint itself must be a demand for the precise sum due, and the difficulty does not seem to be obviated. (2 R. S. N. Y. 505, Sec. 30; 4 Geo. II, Chap. 28.) In O'Connor v. Kelly, 41 Cal. 434, in ejectment, the failure to demand the precise amount due as rent was held to be fatal to plaintiff's hopes of recovery. So, also, in Gage v. Bates, 40 Cal. 385; Gaskill v. Trainer, 3 Cal. 334. From the nature of things, a tenant being rightfully in possession, a forfeiture can only be established in absolute antagonism to him; no waiver of the demand will ever be implied; the mere failure to pay rent will not make a forfeiture; the formal demand for the precise sum due must be shown affirmatively. (Gaskill v. Trainer, 3 Cal. 340.)

It certainly would be a great hardship upon the tenant if à landlord were permitted to destroy the leasehold estate by making a demand generally for rent due, without specifying the particular sum claimed, and thus force the tenant to forfeit all rights under a valuable lease because he may not, by reason of unsettled accounts or otherwise, have paid all the rent which may ultimately be shown to have been due.

But, on the other hand, the danger to the landlord, of these compound leases of real and personal property, becomes apparent where the tenant is impecunious, and the rent is to be made from the dairy product of the cows grazed upon the land.

if the landlord evicted the lessee from any portion of the demised premises;1 nor, if the tenant retained the occupation of the residue, could the lessor hold him for the proportionate rent thereof.2

If a landlord lease premises with a water-course on them, and afterward stop the water-course, the tenant may consider it an eviction; so, if he set up a gate across a lane, or obstruct the lights to a house, or deprive the tenant of the special privilege of using a pump on adjoining property.3

And where a lease is of personal property, with the use of the realty as pasturage, it might well be an eviction on the part of the landlord to deprive the tenant of the use of the cows; and he might deprive himself of the right to retake his cows, if he find that the tenant is abusing them, or to protect himself in any way which would interfere with the possession of any part of the personal property. Any such interference would be at a risk of causing an eviction such as might work a forfeiture, and endanger the collection of any rent.1

1 Taylor's Landlord and Tenant, 315. "It is also implied that the tenant shall have the free use of the whole of the premises; and if he is ousted from any material part thereof, he may treat it as an eviction from the whole premises." (Etherige v. Osborn, 12 Wend. 529; Hay v. Cumberland, 25 Barb. 594.)

2 Leishman v. White, 1 Allen, 489; Christopher v. Austin, 11 N. Y. 216; Taylor's Landlord and Tenant, 379.

3 Rhodes v. Bullard, 7 East, 116; Salman v. Bradshaw, Cro. Jac. 304; Andrews v. Paradise, 8 Mod. 318; Morris v. Edginton, 3 Taunt. 24; Kidder v. West, 3 Lev. 167.

4 Taylor's Landlord and Tenant, 379. "Upon the principle that a tenant shall not be required to pay rent, even for the part of the premises which he retains, if he has been evicted from the other part by his landlord, it has been held that, if a landlord, without the consent of his tenant, uses privileges which are appurtenant to the premises, and which are not expressly reserved in the lease, he is not entitled to collect rent."

Skaggs v. Emerson, Supreme Court of California, 50 Cal. 3. "Upon the forfeiture the plaintiff must rest as his ground for any judgment, and he claims that the forfeiture arose from non-payment of rent. But if the averments of the answer, which were stricken out by the Court below, are true, no recovery can be had upon the covenant to pay rent, since defendant had been evicted by plaintiff from a substantial part of the demised premises. The covenant to pay rent is entire, and canot be severed or apportioned."

Camarillo v. Fenlon, 49 Cal. 203; Briggs v. Hall, 4 Leigh, 484; Christopher v. Austin, 11 N. Y. 216; Shumway v. Collins, 6 Gray, 227; Neale v. Mackenzie, 1 Mees. & W. 747; Blair v. Caxton, 18 N. Y. 529.

But see Edgerton v. Page, 20 N. Y. 281; Academy of Music v. Hackett, 2 Hilt. 217; and Mortimer v. Brunner, 6 Bosw. 653. A mere trespass by the landlord, as where he piled firewood on part of the leased land, and which did not inter

§ 348. Possession, under dairy contract, of real and personal property.-As to the right of possession of the property during the term of the leasing or dairy contract, it may be conceded that the personal property is certainly in the possession of the lessee, or party to the contract, who is to use the animals for dairying purposes.

This is almost necessarily the case, because the owner cannot, from the nature of the case, retain any possession of the cows and other personal property devoted to a particular purpose to which it is to be applied by another. From the very fact of such devotion, the party who is to put it into effect must have possession, except so far as may be affected by special reservation, as, for instance, the wagon and horses may, by special agreement, only be used for marketing the dairy produce by the tenant, while the general possession and use is reserved by the owner. Such instances of reservation, however, only make it more apparent that the possession of the chief personal property to be used in the business must be in the tenant.

As to the land, it is not so clear. The general possession may remain in the owner, subject to so much use thereof as is requisite for the purposes of the contract, or there may be a sort of common possession in both parties to the contract, and, in such a case, it would appear that either could maintain trespass against an intruder who interfered with the enjoyment of the premises to which either party was entitled.1

fere with the substantial enjoyment of the premises, does not amount to an eviction. (Lansberry v. Snyder, 31 N. Y. 514.)

1 Cornell v. Dean, 105 Mass. 435. In this case, it was held that one who has hired a farm on shares may maintain an action against a third party, whose cattle he has agreed to pasture thereon, without joining his lessors.

Herskell v. Bushnell, 37 Conn. 36. "A let his farm to B on shares, the stock being owned in common, each furnishing half the seed, and receiving half the crops, and both living in the house on the farm. Held, that the occupation of B as tenant did not exclude the occupation of A, and that A, under the statute, could seize and take into custody cattle trespassing upon the farm; and held, that he was not bound to act jointly with B in seizing the cattle."

The parties have a common interest in the premises, and each is damaged by the trespass-the entry of the cattle inflicted a common injury to both parties. "It would be absurd to require both tenants in common in the growing crop to participate in taking into custody the trespassing animals."

Each has an immediate interest to protect, and incidentally he protects his cotenant, and the cotenant can have no ground of complaint if he is not asked to join in protecting the common interest; and a stranger who has injured both cannot well complain that both do not sue him. (Ibid, p. 46.)

§ 349. Right to increase from cows under dairy contract. The increase from animals, while leased out for dairying or similar purposes, as a general rule, belongs to the tenant, for, according to the general principle of law, such increase belongs to the person who, by hiring for a time, becomes the temporary proprietor of the animal.

The rule may be taken to be that where animals are let for hire their increase belongs to the person who hires them, unless it be otherwise agreed at the time the contract is made. Where, however, the animal is only loaned without any remuneration for the use of it, this rule does not apply, and the owner of the dam is entitled to, and upon its birth becomes the owner of, her progeny.1

But for injury to property, or for conversion of it, a party can only recover who has actual or constructive possession of it; and if the owner has, for the time being, parted entirely with the possession of the animals leased, the tenant alone should sue for damage to them, especially if he has covenanted, as is usual, to return them in good order and condition. (Putnam v. Wiley, 8 Johns. 434; Orser v. Storms, 9 Cow. 687; Bac. Abr. [C.] 2.)

1 Moore v. Mohney, 1 Mich. Nisi Prius, 143. "A let a farm to B, and by the contract was, amongst other things, to furnish B a team to work in carrying on the farm, and was also to furnish B two or more cows to be kept by B, and B was to deliver to A one-half of all the butter made from said cows. Held, that B was entitled to the increase of the cows during the term."

In this case, the plaintiff leased her farm to defendant for two-thirds of the hay, grain, and other produce to be raised; plaintiff to furnish seed, feed, teams, and tools, and in the contract occurs this agreement: "The said party of the first part, (plaintiff) further agrees to furnish to the said party of the second part, (defendant) two or more cows, which are to be kept by the party of the second part, and the party of the second part further agrees to deliver, to the party of the first part, one-half of all butter made from said cows." Defendant, under this agreement, took possession of the premises and personal property, and remained so in possession, by mutual consent, from year to year, for three years, and then gave up possession to plaintiff, but retained the progeny born from the cows while so in his possession. Plaintiff replevied them, under the plea that, owning the mothers, she also owned the increase, but her claim was not sustained,

The Court says, p. 144: "The written contract being silent on the subject of the increase of the cows during the term, the legal right must be determined by the relation the parties sustain to each other in respect to the cows during that time. The contract seems to make the defendant a bailee of the cows for hire. They were let to him as a part of the condition of the lease of the farm, and he was also bound to deliver to the plaintiff, in consideration therefor, one-half of all the butter made from the cows." "Where animals are let for hire, their increase belongs to the person who hires them, unless it be otherwise agreed upon by the parties when the contract is made. Under this rule, therefore, the defendant is entitled to the increase of the cows."

Orser v. Storms, 9 Cow. 687; Concklin v. Havens, 12 Johns. 314.