delivered the opinion of the court.

The judgment will be reversed for the giving of the instruction asked by the plaintiff. That instruction assumes that the judgment in the justice’s court, after being affirmed in the land court, • established the amount of rent that was due at the institution of this proceeding. By the act concerning landlords and tenants in St. Louis county, when a complaint is made under it, the sole inquiry is whether any rent is due. As the proceeding is duly to restore the possession to the landlord, whether the rent is due is only a fact in the case necessary to be proved in order to entitle the plaintiff to a judgment; but, when the fact is ascertained that rent is due, the amount due forms no part of the judgment, nor is it necessary to enter it on the record.

*528Whether the plaintiff would fail in his action if it should turn out that he had demanded more rent than was due is a question not necessary to be determined now, as it does not arise on the record. Such a question could only be raised by an appeal from the justice’s court, and on the trial of the appeal in the land court would be brought to this court by a bill of exceptions. By entering the amount of rent proved to be due on the justice’s docket or in the record of the land court, the question could not be raised; but the variance between the amount claimed and that proved being a fact, the evidence showing the variance should be preserved in a bill of exceptions and not by entering it on the record.

The justice, then, having no jurisdiction to ascertain the amount of the rent due and demanded, there was error in so much of the instruction given for the plaintiff as related to that subject. So also there was error in that portion of the instruction which took from the consideration of the jury the amount of rent afterwards accruing, and which directed them, as a matter of law, that two hundred dollars was the rent of the premises. Even if the defendant was bound for the rent fixed by the lease, the execution of the lease was not submitted to the jury as a matter of fact. There was evidence in the case from which a jury might have found that the defendant assented to the payment of the rent fixed by the lease. Where the law makes any other person than the lessee named in the lease liable for the rent, such person would bo liable according to the terms of the lease.

The second instruction asked by the defendant was properly refused, as the assent of the landlord to the occupation of the premises by the defendant was not necessary. The statute authorizes this proceeding against the tenant or person occupying the premises. -

We do not see how the defendant was damnified by the rejection of the record in the case of the plaintiff against Mrs. Bittner as evidence. That proceeding did not claim any rent that is claimed in this suit, and the defendant, though *529not liable for the rent there demanded, may have subjected himself to this proceeding by his subsequent conduct.

The judgment will be reversed and the cause remanded ;