UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 THE 
 
 LAW 
 
 OP 
 
 LANDLORD and TENANT. 
 
 BY WILLIAM WOODFALL, ESQ.
 
 ■% 
 
 % 
 
 C. WOOnFAI.I,, PRIKTrK, 
 
 ak»;bi. tovnr, mtiKKrn rrHurcr, f.ONDON.
 
 THE 
 
 LAW 
 
 OF 
 
 LANDLORD and TENANT; 
 
 TO WHICH IS ADDED, 
 
 AN APPENDIX OF PRECEDENTS. 
 
 BY WILLIAM WOODFALL. 
 
 OF THE MIDDLE TEMPLE, ESQ. BARRISTER AT LAW. 
 
 THE FIFTH EDITION, 
 
 WITH CONSIDERABLE ALTERATIONS AND ADDITIONS, 
 "AND A NEW INDEX. 
 
 HtmtJOtt : 
 
 PRINTED FOR JOSEPH BUTTERWORTH AND SON, 
 
 43, FLEET STREET ; 
 
 AND J. COOKE, ORMOND QUAY, DUBLIN. 
 
 1819.
 
 r ^,
 
 1*^ 
 
 6 
 
 TO 
 THE RIGHT kONOURABLE 
 
 JOHN LORD ELDON, 
 
 BARON ELDON OF ELDON IN THE COUNTY PALATINE OF DURHAM, 
 LORD HIGH CHANCELLOR OF GREAT BRITAIN, 
 
 Sfc. 8sc. 4-c. 
 
 THIS WORK IS DEDICATED, 
 
 WITH THE MOST PROFOUND RESPECT, 
 
 FOR HIS lordship's EXTENSIVE KNOWLEDGE 
 
 AND DISTINGUISHED TALENTS 
 
 AS A LAWYER, 
 
 AND INTEGRITY A3 A MAN, 
 
 AND 
 
 WITH GRATEFUL REMEMBRANCE 
 
 OF HIS lordship's PERSONAL KINDNESS ; 
 
 BY HIS lordship's 
 
 MOST OBEDIENT HUMBLE SERVANT, 
 
 WILLIAM WOODFALL.
 
 ADVERTISEMENT 
 
 TO THE FIFTH EDITION. 
 
 In preparing for the Press the present Edi- 
 tion of THE Law of Landlord and 
 Tenant, the whole Work has been carefully 
 revised. The decisions not conformable with 
 the Law as it at present stands, have been 
 omitted, and the Cases reported since the 
 publication of the last Edition have been 
 added to the text. 
 
 The original Index also, being generally 
 preferred to the one substituted in the Fourth 
 Edition, has been restored in an abridged 
 and improved state, and will it is hoped be 
 now found sufficiently copious for the pur- 
 poses of reference, without unnecessarily 
 increasing the bulk of the Volume. 
 
 Hilari/ Vacation. 
 1819.
 
 ADVERTISEMENT 
 
 TO THE SECOND EDITION. 
 
 The Patronage, with which this Treatise 
 has been honoured by the Public, is so fully 
 evinced by the rapid sale of the First Edi- 
 tion, and by the approbation of those who 
 are most competent to judge of its merits ; 
 that every feeling of gratitude has in the 
 present instance confirmed the principle of 
 emulation, which induces an Author to en- 
 deavour to render his Work as useful and 
 complete, as his means and capacity will 
 allow. 
 
 Under these impressions, this Second Edi- 
 tion of THE Law of Landlord and 
 Tenant has been very carefully revised ; 
 and, besides other necessary augmentations 
 to the several subjects as they originally stood 
 in the Work, three new Chapters have been 
 added, which treat, 1. Of the remedy for a
 
 ADVEKTISEMENT. 
 
 forcible entry. 2. 01" the remedy for any 
 infringement of a right of way. 3. Of the 
 right to accommodation in the Parish Cimrch, 
 and of the HabiHty to bear the expenses inci- 
 dent to the Church EstabHshment. 
 
 The Appendix has also been rendered more 
 perfect, by the introduction of some accurate 
 and useful Precedents. 
 
 Middle Tejtiple, 
 Trinity Term, 1804.
 
 CONTENTS. 
 
 CHAPTER I. 
 
 Page 
 Sect. I. TNTRODUCrORY observations on leases 
 
 in general 1 
 
 Sect. II. Of the requisites to a lease, and how it may be 
 
 made 4 
 
 Sect. III. Of registering leases 15 
 
 CHAPTER II. 
 
 Sect. I. Of agreements for leases, and the remedies thereon 1 9 
 Sect. II.- Of the stamps required to leases, and agreernenis, 
 
 for leases 39 
 
 CHAPTER III. 
 
 Of the parties to a lease; wherein by whom a 
 Lease may he made. 
 
 Sect. I. Who may make leases, and herein of leases made 
 
 by tenant in fee-simple 31 
 
 Sect. II. Of leases made hy tenant in tail 33 
 
 Sect. III. Of leases by tenant in tail after possibility of 
 
 issue extinct 38 
 
 Sect. IV. Of leases by tenant for life, absolute or contingent 39 
 
 Sect. V. Of leases by tenants pour outer vie 41 
 
 Sect. VI. Of leases by tenant by the courtesy of England, 
 
 in dower or jointure ib. 
 
 Sect. VII. Of leases under powers 42 
 
 Sect. VIII. Of leases by tenants for years 60 
 
 Sect. IX. Of leases by tenant from year to year, or for a 
 
 less term 61 
 
 Sect. X. Of leases by corporations ib. 
 
 Sect. XI. Of leases by ecclesiastical persons 64 
 
 Sect. XII. Of leases by trustees of charities. 71 
 
 Sect. XIII. Of leases by married women, and husbands 
 
 seised in right of them 72 
 
 Sect. XIV. Of leases by infants and guardians 76 
 
 Sect. XV. Of leases by executors or administrators 79 
 
 Sect. XVI. Of leases by mortgagors and mortgagees ib.
 
 xii CONTENTS. 
 
 Page 
 
 Sect. XVII. Of leases by tenants by elegit, statute merchant, 
 
 and statute staple, Sfc 82 
 
 Sect. XVIII. Of leases by copyholders ; wherein of licence.,., ib. 
 
 Sect. XIX. Of leases by joint-tenants, coparceners, and te- 
 nants in common 86 
 
 Sect. XX. Of leases pursuant to authority ; wherein of 
 
 leases by attomies, agents, Sfc 89 
 
 CHAPTER IV. 
 To whom leases may be made 91 
 
 CHAPTER V. 
 Of the Subject- Matter of Leases. 
 
 Sect. I. Of corporeal hereditaments ; zvherein of farms, 
 
 lands, houses, and lodgings 95 
 
 Sect. II. Of incorporeal hereditaments ; wherein of ad- 
 
 vowsons, tithes, ^c 99 
 
 CHAPTER VI. 
 
 For what Term Leases may he made. 
 
 Sect. I. Of terms for life, and how created 104 
 
 Sect. 11. Of terms for years absolutely, or on condition, 
 wherein of the commencement, duration, 
 and termination of them, and of the sur- 
 render and renewal of leases..,. liO 
 
 CHAPTER VII. 
 
 For what Terms Leases may be made (continued). 
 
 Sect. I. Of tenants from year to year; wherein of notice 
 
 to quit 154 
 
 Sect. II. Of tenants for a less term ; wherein of lodgings. 166 
 
 Sect. III. Of strict tenants at will 170 
 
 Sect. IV. Of tenants at sufferance 173 
 
 CHAPTER VIII. 
 Of the general Incidents to Leases. 
 
 Sect. I. Rent, what and how payable 173 
 
 Sect. II. Of taxes 187 
 
 Sect. III. Of the poor's rates 191 
 
 CHAPTER IX. 
 
 Of the general Incidents to Leases (continued). 
 Sedt. I. Of waste; wherein ofjixiures , 206
 
 CONTENTS. xiii 
 
 Page 
 
 Sect. II. Of common of estovers 221 
 
 Sect. III. Of emblements 226 
 
 CHAPTER X. 
 Of the general Incidents to Leases (continued). 
 
 Seel. I. Of implied covenants and agreements 232 
 
 Sect. II. Of express covenants and agreements 235 
 
 CHAPTER XI. 
 
 Of ussignmeiits and under-leases, and in what cases assignees 
 are hound hy covenants, or may take advan- 
 tage of them ; whether the assignment or 
 under-lease he absolute, or by way of mort- 
 
 gage 
 
 264 
 
 CHAPTER XII. 
 
 Of changes happening by marriage, bankruptcy, insolvency, or 
 death; wherein of assignees, devisees, execu- 
 tors and administrators, and in what cases 
 they are hound by, and may take advantage 
 of, covenants , 278 
 
 CHAPTER XIII. 
 
 Of the Remedies for and against Landlord and 
 
 Tenant, 
 
 First, Of remedies for the landlord for recovery of rent 
 
 Sect. I. By distress ; wherein of pound-breach and rescue 293 
 
 Sect. II. Of the action of debt, where the lease is hy deed... 314 
 
 Sect. III. Of the action of covenant, where the lease is by deed 326 
 
 Sect. IV. Of the action of debt, for use and occupation 336 
 
 Sect. V. Of the action of assumpsit, for use and occupa- 
 tion 340 
 
 CHAPTER XIV. 
 
 Of the Remedies for and against Landlord a^id 
 Tenant; wherein 
 
 Of the actions of ejectment and trespass for mesne profits, for 
 recovery of rent and possession. 
 
 Sect. I. Of the action of ejectment at common law 346 
 
 Sect. II. Who may defend the action of ejectment, Sfc 376 
 
 Sect III. Of the action for mesne profits 412 
 
 Sect. IV. Of a second action of ejectment 416 
 
 Sect. V. Of the action of ejectment upon the statute 4 G. 2. 
 
 c. 28. s, 2 418
 
 3tiv CONTENTS. 
 
 p«ee 
 
 Sect. VI. 0/ the remedy for the landlord, under the statute 
 11 G. 2. c. 19. where the premises are va- 
 cant 42S 
 
 CHAPTER XV. 
 
 Of the Remedies for and against Landlord and 
 Tenant (continued). 
 
 For the landlord, for the breach of covenants and agreements, 
 other than for rent. 
 
 Sect. I. Of the action of covenant 425 
 
 Sect. II. Of the action of assumpsit 437 
 
 CHAPTER XVI. 
 Of the Remedies for Waste, 
 
 Sect. I. Of the action of uaste, on the statute of G\oucester, 
 
 and trover for waste 440 
 
 Sect. II. Of the action upon the case in the nature of waste. . . 450 
 
 Sect. III. Of the remedies in equity, in the case of waste.., 451 
 
 CHAPTER XVII. 
 Of the Landlord's Remedy against Third Persons. 
 
 Sect. I. By action on the case for nuisances to the injury of 
 
 his reversion 454 
 
 Sect. II. Of the action on the case against the sheriff, for re- 
 moving goods tinder an execution, without 
 paying a year's rent, by virtue of the statute 
 8Ann. c. 14 458 
 
 Sect. III. The landlord's remedy on the statute 11 G. 2. c. 19. 
 touching goods fraudulently carried off the 
 premises , 462 
 
 CHAPTER XVIII. 
 Of the Remedies for Tenants against Landlords. 
 
 Sect. I. Of the action of replevin 466 
 
 Sect. II. Of the writs in replevin 473 
 
 Sect. III. Of the verdict and judgment in replevin 491 
 
 Sect. IV. Of the remedies ivhere the pledges prove insufficient 497 
 
 CHAPTER XIX. 
 
 Of the Remedies for Tenants against Landlords 
 (continued). 
 
 (>f the remedies for an unfounded, irregular, or excessive dis- 
 tress 502 
 
 Sfcl. I. For rent pretended to be anear , , ib.
 
 CONTENTS. XV 
 
 Page 
 
 Sect. II. For other supposed right to distrain 504 
 
 CHAPTER XX. 
 
 Of the Remedies for Tenants against Landlords 
 (continued). 
 
 Of the tenant's remedies by action of covenant or assumpsit, ac- 
 cording as the lease is bj/ deed, or without deed 511 
 
 CHAPTER XXI. 
 
 Of the Remedies for Tenants against Third 
 Persons, 
 
 Sect. I. Of distress for damage feasant ; and rescous 514 
 
 Sect. II. Of trespass for immediate injuries to the tenant's 
 
 possession, and case for consequential ones... 516 
 
 CHAPTER XXII. 
 
 Of Remedies against Third Persons ; 
 wherein of 
 
 Forcible entry and detainer 528 
 
 CHAPTER XXIII. 
 
 Of Remedies against Third Persons ; 
 wherein of 
 
 Obstruction of a right of way, and of the actions of 
 trespass, and on the case, for disturbing a right 
 of way 5-36 
 
 CHAPTER XXIV. 
 
 Of liability to repair the church, and of the right to pews therein 589
 
 THE 
 
 LAW 
 
 OF 
 
 LANDLORD AND TENANT, 
 
 c?^C. ^^C. cj^C. 
 
 CHAPTER I. 
 
 Section I. Introductory Observations on Leases in general. 
 
 T^EFINITION of a Lease. — A lease Is a contract for the possession 
 and profits of lands and tenenrents on tlie one side, and a recom- 
 pense of rent or other income on the other ; or it is a conveyance of 
 lands and tenements to a person for life, or years, or at will, in con- 
 sideration of a return of rent or other recompense. The party letting 
 the land is called the lessor or landlord, and the party to whom the 
 lease is made, the lessee or tenant. 
 
 Antiquity of Leases^ ^c. — It has generally been supposed, that the 
 connection between landlord and tenant has gradually improved from 
 that of master and slave into a state of total independance, and mutual 
 interest in the soil. In support of this opinion, we are told (a) that 
 lands were originally occupied by bondmen ; but as these men derived 
 no profit from their labour, and had consequently no interest in being 
 industrious, it became necessary to have a free man to manage the 
 farm, who probably at first had some acres set apart to him for his 
 maintenance and wages. In progress of time, it was found more 
 politic to give him an interest in the produce, first, by allowing him 
 a certain proportion in place of wages, and ultimately, by reserving 
 to the master a yearly quantity certain, and permitting the servant to 
 retain the overplus. One further step, necessary to bring this con- 
 
 (a) Kaims' Hist. Law Trac. 
 
 B
 
 4 
 
 2 Introduclorij Observations [Chap. I. 
 
 tract to its due perfection, was to give the servant a lease for years, 
 without which he was not secure that his industry would turn to 
 his own profit. By a contract in these terms he acquired the name 
 of tenant, because he was entitled to hold the possession for years 
 certain. 
 
 But the notion that the cultivation of the ground was formerly 
 carried on by slaves alone, is contradicted by the evidence afforded 
 by the records and monuments of the middle ages («), which prove, 
 that while slavery existed in this country, there were also tenants and 
 free labourers of the ground, who held their lands under lease. It 
 appears that the practice of letting lands was known among the 
 antient British: a proprietor of lands being permitted to let them for 
 a year at his pleasure, though he could not alien or charge them {b)^ 
 Those who formerly held large districts and tracts of land being 
 unacquainted with the arts of husbandry and tillage, found it their 
 interest to lease out their demesnes, which, for want of care and 
 cultivation, lay waste, and afforded them little or no profit. These 
 leases were granted for years ; this mode of letting being thought 
 best to answer the designs and intentions of the lord, as well as the 
 expectations of the tenant : for if they had let them for life, this had 
 given the tenants too great a power over the lord, because then they 
 would have had a property in the freehold, and by suffering dis- 
 seisins or feigned recoveries to be had against themselves, might have 
 shaken or endangered the inheritance of the owner; and on the other 
 side, if they had leased their land only at will, few would have 
 chosen to bestow any great pains or industry upon so precarious a 
 possession, which the arbitrary will and pleasure of a peevish lord 
 might have defeated (c). 
 
 (d) Thus, these estates were originally granted to mere farmers or 
 husbandmen, who every year rendered some equivalent in money, 
 provisions, or other rent, to the lessoi^s or landlords; but in order to 
 encourage them to manure and cultivate the ground, they had a per- 
 manent interest granted them, not determinable at the will of th^ 
 lord. Their possession, however, was esteemed of so little conse- 
 quence, that they were rather considered as bailiffs or servants who 
 were to receive and account for the profits at a settled price, than as 
 liaving any property of their own ; they were, therefore, not allowed 
 to have a freehoM estate, but their interest, such as it was, vested 
 after their deaths in their executors, who were to make up the ac- 
 counts of their testator with the lord, and his other creditors, and 
 were entitled to the stock upon the farm. The lessee's esiate might 
 also, by the antient law, be at any time defeated by a common re- 
 covery suffered by the tenant of the freehold; which annihilated all 
 
 (a) See Bell on Leases, C. I. (A) i Whit. Manch. s. 4. p. 377. 
 
 (f) Bac. Abr, Tit. Leases. (i) » BI. Com. 141.
 
 Sect. J.] on Leases in general. S 
 
 leases for years then subsisting, unless afterwards renewed by the 
 recoverer, whose title was supposed to be superior to his by whonj 
 those leases were gramted. 
 
 While estates for years were thus precarious, it is no wonder that 
 they were usually very short, like our modern leases upon rack rent; 
 and indeed, we are told that, by the antient law, {a) no leases for 
 more than forty years were allowable, because any longer possession, 
 (especially when given without any livery declaring the nature and 
 duration of the estate,) might tend to defeat the inheritance. Besides, 
 such leases were only made to serve the occasions and exigencies of 
 the lord in cultivating and improving his demesnes ; (b) not to borrow 
 money upon, or to raise portions for daughters, or such other uses as 
 are now made thereof : therefore there was no need to extend them 
 to any great length of time, since they might be renewed as often as 
 occasion required ; the lessees likewise, if they were evicted, being 
 only to recover damages, it would have been fruitless to prolong 
 leases for the term of a thousand years, when the persons who would 
 have to possess under such leases had no remedy for their damages, 
 but by recourse to the representatives of the original lessor. The 
 law, however, that restricted the duration of leases for years to forty 
 years, if it ever existed, was soon antiquated : [c) for we may observe 
 in Madox*s Collection of Antient Instruments, some leases for years 
 of an early date, which considerably exceed that period ; and long 
 terms for three hundred years, or a thousand, were certainly in use 
 in the time of Edward III. and probably of Edward I. But un- 
 doubtedly when by the statute 21 //. 8. c. 15. the termor (that is, 
 he who is entitled to the term for years) was protected against these 
 fictitious recoveries, and his interest was rendered secure and ptr- 
 manent, long terms began to be more frequent than before ; and 
 were afterwards extensively introduced, being found extremely con- 
 venient for family settlements and mortgages. 
 
 But though, at this day, terms for years are multiplied to a much 
 longer duration than they were formerly, and there is ample remedy 
 to recover the term Itself, yet the succession continues the same : {d) 
 for besides the reason already given, it would be inconvenient to have 
 had one rule of property for short terms, and another for those that 
 were longer, being all of the same nature, and still no more than 
 leases for years. The difficulty, also, of fixing the just bounds to 
 any precise determinate number of years occurs, since one or two 
 years, more or less, would have made very little difference in reason, 
 were the bounds affixed to leases of never so long a continuance ; and 
 long or short are only terms of comparison, as a lease for forty years is 
 long with respect to one of eight or ten years, and yet short with 
 
 {a) a Bl. Com. 14a. {b) Bac. Abr. Tit. Leases. 
 
 [s) a Bl. Com. 14a. {d) Bac.Abr.Til.Lea$ej. 
 
 B2
 
 4 Of the Requisites to a Lease^ [Chap. I. 
 
 respect to another of n hundred years ; therefore', that there might be 
 an uniformity in the law, all leases for years are held to be of less 
 
 T value than estates for life, as being originally of much shorter dura- 
 tion ; and also because they were under the power of the tenant of 
 the freehold to destroy, and therefore are considered only as chattels, 
 
 I and cast upon the executor. 
 
 Section 1 1. Of the Requisites to a Lease, and how it may 
 
 be made. 
 
 In every lease It is requisite that there should be, i. A lessor able 
 to grant it. 2. A lessee capable of accepting it. 3. A subject- 
 matter that is demiseable. 4. There must also be the needful cere- 
 monies, &c. ; as where a freehold estate is created by lease, livery of ~¥ ^■■^•' 
 seisin must be given to the lessee; and where a lease is for a term of 
 years there must be an entry by him. 
 
 No lease is good unless it contains a sufficient degree of certainty, 
 as to its beginning and ending ; though it may determine prior to the 
 period for which it Is granted. In consequence of a proviso or con- 
 dition ; and a'l modern leases contain a proviso enabling the lessor 
 to re-enter and determine the lease on non-payment of rent, or 
 breach of the covenants (a). It is Immaterial whether any rent be 
 reserved upon a lease for life, years, or at will, or not ; except only 
 In the cases of leases made by tenant in tail, husband and wife, and 
 ecclesiastical persons : of which hereafter. 
 
 By nvhat words made. — The usual words, ib) whereby a lease is 
 made, are " demise, grant, and to farm let," and whatsoever words 
 amount to a grant may serve to make a lease. Farm, ferme, fearme, 
 Jirtnoy is derived of the Saxon word '* feorman," to feed, or relieve ; 
 because, In antient time, they reserved upon their leases, cattle and 
 other victual and provision for their sustenance, so that a farmer, 
 JirmariuSy was one who held his lands upon payment of a rent or 
 feorme, though at present, by a gradual departure from the original 
 sense, the word •' farm" is brought to signify the very estate or 
 lands so holden upon farm or rent : and this word " farm," in a will < 
 is sufficient to pass a leasehold estate, If It appear to have been the 
 testator's intention that it should so pass(i). 
 
 Here, it may be laid down for a rule, that whatever words are 
 sufficient to explain the intent of the parties, that the one shall divest 
 himself of the possession and the other come into it, for such a deter- 
 minate time, whether they run in the form of a licence, covenant, or « 
 agreement, are of themselves sufficient, and will, In construction of 
 
 (->) Cruis. Lig. Ltasc. (i) Co. Lit. 45. Ibid. 5. z Black. 318. (<•) 6 T. R. 345.
 
 Sect. II.] and how it may be made. 5 
 
 law, amount to a lease for years as effectually as if the most proper 
 and pertinent words had been made use of for that purpose. 
 
 Thus the word " eiecir is said to be a sufBcient word to make a 
 lease for years (a). 
 
 So, a licence to inhabit amounts to a lease (Z"). 
 
 If therefore one " license" another to enjoy such a house or land 
 from such a time to such a time, it is a lease ; [c) for it is a certain 
 present interest, ^nd ought to be pleaded ns a lease : it may, however, 
 be pleaded as a licence ; and if it be pleaded as a lease for years and 
 traversed, the lessee may give the licence in evidence to prove it. 
 
 The words " covenant, grant, and agree" that A. shall have the 
 lands for so many years, are apt words to make a lease for years, and 
 enure as a lease [d). 
 
 The word " covenant" will make a lease, though the words " grant 
 and agree" be omitted {e). 
 
 ■ So, a covenant, " to stand seised" entered into by the owner, is a 
 lease (/). 
 
 Covenant and entry amount to a lease : but a lease merely does not 
 vest the estate in the lessee, but only gives him a right to epter and 
 possess it. 
 
 A paper writing was entitled " Memorandum of an Agreement be- 
 tween A. and B. and signed by them, expressing that in consideration 
 of 40/, A. doth agree to let, and B. doth agree to take a messuage, &c. 
 at 40/. per annum rent, and it is further agreed that A. shall not 
 raise the rent nor turn out B. so long as the rent is duly paid quar- 
 terly, and he does not sell any article injurious to A. in his business:" 
 though the terms do not exclude the construction of actual demise, 
 yet the import of the whole looking to some future instrument, and a 
 more permanent interest, than from year to year, a demurrer to a bill, 
 for specific performance against A, who had succeeded in an eject- 
 ment, was overruled (^). 
 
 A deed that the person shall " hold and enjoy the premises from 
 seven years to seven years, for and during the term of forty-nine 
 years," with a proviso " that it shall be void on payment of so much 
 money," though intended only as a collateral security, amounts to a 
 present lease (/j). 
 
 One made his will in this manner : " I have made a lease to J. S. 
 for term of twenty-one years, paying but 2oj-. rent j" this was held a 
 good lease, or demise by will, for twenty-one years ; and that the 
 woi^^d f,* have" should be taken in the present tense, as dedi is in a 
 deed of feoffment, to comply with the intent of the testator (?)• ^ 
 
 (a) Co. Lit. 301 B. (r; 4 Burr. 2209. i Mod. 14. 11 Mod. 42. I Ld. Raym. 404. 
 
 a Salk. 223. (c) Bac. Abr. Tit. Leases. (J) Cro Jac. 91. (e) 2 Mod. 80. 
 
 (/) 3 Burr. 1446. (g) 14 Ves. 156. 409. {L) Cro. Jac. 172. Z Mod. 8. 
 
 (ij Bac. on Leases, 163.
 
 6 Of the Requisites to a Lease, fChap. I. 
 
 Articles by which « it is covenanted and agreed that A. doth let 
 the said lands, &c." amount to an immediate lease {a) and z proviso 
 that the lessee *' shall pay to the said A. annually, &c." is a good 
 reservation of rent, and not a condition : one of the judges, hovi'ever, 
 held it to be a reservation and a condition also ; as in another case, 
 where a proviso joined with v/ords of covenant made it a condition 
 and a covenant also. 
 
 So, an agreement to grant a lease, whereby the lessor did let and 
 set for twenty-one years from a future day, shall be a lease in prasentiy 
 if the circumstances shew the party's Intent so to be (b). 
 
 But although no specific words are necessary to create a lease, yet 
 there must be words used which shew an intention to demise. 
 
 Therefore where a lessee of tithes agreed with the owner of lands, 
 for certain collateral considerations, not to take tithes in kind from 
 the tenants of their lands for twelve years, but to accept a reasonable 
 composition not exceeding 3J'. 6d. per acre ; this was adjudged to be 
 no lease: (c) for ist, the rent affected to be reserved is uncertain; under 
 this agreement it is at the option of the party either to pay tithes in 
 kind, or to tender the reasonable value of the tithes, which may be 
 under 31. 6d. per acre ; 2dly, the owner of the lands, the person with 
 whom the agreement is made, is neither to enjoy any thing nor pay 
 any rent ; it cannot therefore be a demise to him. It can, at the ut- 
 most, amount to no more than a mere covenant with A. that B. shall 
 enjoy, and creates no lease to either. 
 
 So, where one made a lease for life, is' provisum est, that if the 
 lessee die within sixty years, then his executors and assigns should 
 enjoy the land in his right for so many years as should be behind of 
 the sixty years from the date of the lease ; this vv^as held to be only a 
 covenant and no lease ; [d) for which divers reasons are assigned in the 
 books i the best however seems to be, that he having in the first part 
 of the deed made a lease in express and proper v/ords, must be sup- 
 posed to mean something less in the last part of the deed, which varies 
 so widely in the form of expression, and which has a natural and 
 proper meaning of its own as a covenant, but cannot amount or come 
 up to a lease, without violence and force done to the words, as well as 
 the intent of the parties. This seems the more probable, because it is 
 held clearly, that if it had been provided that if the lessor die within 
 sixty years, that then he demised the land to another, (who was also a 
 party to the deed) for so many of the sixty years as should be then to 
 come, this would be a good lease ; for here he comes into the very same 
 form of expression made use of in the first part of the deed, which 
 was an actual demise, and therefore must be supposed to mean the 
 
 (u) Cro, r.lii. 486. 385. Cro. Car. ao;. S. C. {b) a Bl. Rep. 97,^ 
 
 (*) Amu. 41.J. (Jj U,K-. Ab. 'I'll. LcntC!,. K.
 
 Sect. II.] a7id how it may be made. 7 
 
 same thing in the latter part too, and consequently such words would 
 make it an actual demise. 
 
 In one case it is said, that though a grant " to have and to hold" 
 land for years be a good lease, yet a grant to " enjoy" lands in the 
 same manner is but a covenant; (a) [but unless it be with reference 
 to a stranger, it is conceived that this opinion is erroneous, if the case 
 itself be rightly reported.] 
 
 For, a covenant " that a stranger shall enjoy such land for so many 
 years at such a rent," does not amount to a lease, but a covenant [b). 
 
 It is said also, that a covenant " that he shall permit the covenantee 
 himself to hold the land for so many years," does not amount to a 
 lease ; for it sounds only in covenant : [c) [but this seems doubtful at 
 this day, not merely because a hcence to inhabit amounts to a lease, 
 but because the intention of the parties clearly is that the one grants 
 and the other accepts a lease.] 
 
 An article {d) " that he is content A. shall have a lease for six 
 years, that the rent shall be lo/." does not amount to a lease; for it 
 appears to be only instructions for a lease. 
 
 So, « I agree to let my land," this is no lease (r). 
 
 So, an agreement or covenant made between A. and B. that C. shall 
 have such land for years ; this being made between strangers, cannot 
 amount to a lease [f). 
 
 So, if A. covenants with B. that his executors shall have such land 
 for twenty-one years, this cannot amount to a lease {g). 
 
 Formerly, whenever an instrument contained words of present de- 
 mise, it was held to amount to an absolute lease, although covenants 
 were added prospective of some further act to be done ; such cove- 
 nants being construed to be merely in further assurance. 
 
 Thus these words in an instrument, " be it remembered that A. B. 
 hath let and by these presents doth demise, ^c." were held to ope- 
 rate as a present demise ; although the instrument contained a farther 
 covenant for a future lease (/6). 
 
 So also where before the statute of frauds a party said, " you shall 
 have a lease of my lands in D. for twenty-one years, paying therefore 
 los. per annumy make a lease in writing and I will seal it t" this was 
 held a good lease by parol, and the making of it in writing was but 
 a further assurance {i). 
 
 So also and for a similar reason the words " doth let" in articles of 
 agreement have been held a present demise, although there was a fur- 
 ther covenant " that a lease should be made and sealed, according to 
 the effect of the articles, before a certain day" (I). 
 
 But a different principle now prevails. The intention of the par- 
 fa) Cro.Jac. 172. (*) Com. Dig. tit. Estates (G. I.) (<r) Ibid. (./) Ibid. 
 (e) Cro. Eliz. 156. (/) Ibid. 173. {g) Ibid. (*) 5 T. R, 165. 
 (/■) Cro. Eliz. 33. {k) Cro. Eliz. 486. Noy. S7'
 
 8 Of the Requisites to a Lease, [Chap. L 
 
 ties is alone considered ; and, to use the M'ords of Lord Chief Baron 
 Gilbertf " if the most proper form of words of leasing are made use 
 of, yet if upon the whole there appears no such intent, but that the 
 instrument is only preparatory and relative to a future lease to be 
 , made, the law will rather do violence to the words, than break 
 through the intent of the parties, by construing a present lease when 
 the intent was manifestly otherwise" (a). 
 
 Thus, an instrument, setting forth the conditions of letting a farm, 
 the term to be from year to year, and the lands to be entered upon 
 at a period fixed, &c. and that a lease was to be made upon these con- 
 ditions with all usual covenants, at the foot of which instrument the 
 intended lessee wrote, " I agree to take the premises at the rent of, 
 &c. subject to the covenants," was held to be an agreement for a 
 lease, and not a present demise ; there being not only a stipulation 
 for a future lease, but time being given to prepare it, before the com- 
 mencement of the term, and no present occupation as tenant con- 
 tracted for {b). 
 
 So, where articles were drawn up as follows : *' A. doth demise his 
 close to S. to have it for forty years," and a rent was reserved, with 
 a clause of distress ; upon which articles a memorandum was also 
 written, " that the articles were to be ordered by counsel of both 
 parties, according to the due form of law ;" it was ruled that the 
 articles were not a sufficient lease {c). 
 
 So, where the worcis were " A. cioth agree to let, and B. agrees to 
 take," for a certain term at a certain rent, all his estates, the said B. to 
 enter upon the premises immediately, and it was further agreed that 
 leases with the usual covenants should be made and executed by a 
 certain date ; the stipulation that leases should be so drawn, was held 
 to shew plainly that it was not the intention of the parties that such 
 agreement, although containing words of present demise, should 
 operate as a lease, but only to give the defendant a right to the im- 
 mediate possession till a lease could be drawn {d). 
 
 So also where, upon an agreement stamp, A. agreed to demise and 
 let certain copyhold premises for a certain term at a certain rent, and 
 further undertook to procure a licence to let such premises, the court 
 held, that the instrument was an executory agreement only, for two 
 reasons •, first, because if it were held to be a lease, a forfeiture would 
 be incurred, which would be contrary to the intent of the parties, 
 who had cautiously guarded against it, by the insertion of a covenant 
 that a licence to lease should be procured from the lord ; and, secondly, 
 because the stamp was conformable to the nature of an agreement for 
 a lease, and not adapted to an absolute lease {e). 
 
 So also where the words were "that the said mills he shall hold 
 
 (.1) B,ic. AI1. Til. Leases, 164.— 2 Black. 973. (//) 1,^ East, 18. 
 
 (0 Noy, 1x8. {>!) I T. R. 735- (') a '!"• K. 73V-
 
 Sect. II.3 and how it may he made, 9 
 
 and enjoy, and I engage to give a lease in, for a certain term," &c. 
 it was ruled that the words *' shall hold and enjoy" would have ope- 
 rated as words of present deniise, if they had not been controuled by 
 those which followed {a). 
 
 So also where the words were " agreed this day to let my house to 
 jB." for a certain term, " a clause to be added in the lease to give my 
 son a power," &c. it was considered to be manifest from the latter 
 words, that a future instrument of demise was contemplated {b). 
 
 So also where, in an instrument which contained words of present 
 demise, there was no direct reference to any future lease, but it ap- 
 peared upon taking the whole instrument together, that a future lease 
 was intended, the same rule of construction prevailed. In this case 
 the agreement was, " A. agrees to let to B. all his farm, &c. (except 
 three pieces of land) to hold for twenty-one years, determinable at 
 the end of the first fourteen, at the yearly rent of 26/. payable, &c. 
 and at and under all other usual and customary covenants and agree- 
 ments, as between landlord and tenant where the premises are situate ; 
 ji. to allow a proportionate part of the rent, for the three pieces of 
 land above excepted -," and the court held that it only amounted to 
 an agreement for a lease for the following reasons : because, " at the 
 yearly rent, &c." and " at and under all usual covenants, &c." is not 
 the language in which a lawyer would introduce into a lease the tech- 
 nical covenant for further assurance, but contemplates the entire ma- 
 king of an original lease, and because no landlord or tenant of com- 
 mon sense would enter on a term for twenty-one years, without ascer- 
 taining what were the terms on the one side and the other, by which 
 they were to be bound for that period, and what was to be the rent 
 apportioned for the excepted premises (c). 
 
 But where an instrument upon an agreement stamp was as follows, 
 " A. agrees to let, and B. agrees to take, all that land, &.c. for the 
 term of sixty-one years from Lady-day next, at the yearly rent of 
 120/. and for and in consideration of a lease to be granted by the said 
 A. for the said term of years, the said B. agrees to expend 2000/. in 
 building within four years five houses of a third class of building ; 
 and the said A. agrees to grant a lease or leases of the said land, as 
 soon as the said houses are covered in, and the said B. agrees to take 
 such lease or leases, and execute a counterpart or counterparts thereof : 
 this agreement to be considered binding till one fully prepared can be produced ;"* 
 the court held the same to be a lease, considering it to be the inten- 
 tion of the parties, that the tenant, who was to expend so much capital 
 upon the premises within the four first years of the term, should 
 have a present legal interest in the term, which was to be binding 
 upon both parties ; although when a certain progress was made in 
 
 (<») 5 T. R. i6j. (i) 6 East, 530. (<r) 3 Taunt. 65.
 
 10 Of the Requisites to a Leasee [Chap- 1. 
 
 the buildings, a more formal lease or leases, in which perhaps the 
 premises might be more particularly described for the convenience of 
 under-letting or assigning, might be executed (a). 
 
 So where the instrument was " A. agrees to let, and also upon 
 demand to execute to B. a lease of certain lands, and B. agrees to 
 take and upon demand to execute, a counterpart of a lease of the 
 said lands for a certain term at a certain rent ; the lease to contain 
 the usual covenants, and the agreement to bind until the said lease be 
 made and executed, &c." it was held to be a present demise ; and 
 that the agreement for a future lease, with further covenants, was for 
 the better security of the parties [b). 
 
 A Lease, hoiv made. — A lease may be made either, i . by deed ; 
 2. by writing without deed ; or 3. by parol demise. 
 
 A deed is a writing sealed and delivered by the parties. Deeds are 
 either deeds poll or deeds indented. The former are commonly used 
 where the granting party only seals, and there is no need of the other 
 party sealing a counterpart, the nature of the transaction requiring no 
 covenant from him. It can therefore rarely happen that a lease is 
 made by deed poll ; since leases generally contain a variety of mutual 
 covenants. — When a lease is granted by indenture, two parts or copies 
 are made, one of which is executed by the lessor, and delivered to 
 the lessee, and is called the original ; the other is executed by the 
 lessee, and delivered to the lessor, and is called the counterpart. Some- 
 times each part is executed by all parties, which renders them both 
 originals. 
 
 As every lease is presumed to be by deed, till the contrary be 
 shewn, so every deed that is pleaded shall be intended to be a deed 
 poll, unless it be alleged to be indented [c). Whenever a lease, 
 therefore, is pleaded as an indenture, it must be so alleged [d). 
 
 Parts of a Lease. — A lease by deed indented consists of the follow- 
 ing parts: I . the premises ; 2. the habendum Tind tenendum s 3. r^^^^n- 
 dum^ or reservation ; 4. covenants ; and 5. provisoes or conditions. 
 
 The premises of a lease are all the parts that precede the haben- 
 dum [e). The ofhce of this part of the lease is rightly to name the 
 lessor and lessee, and to comprehend the certainty of the thing demised, 
 either by express words, or by that which by reference may be re- 
 duced to a certainty ; and the exception, or thing excepted, if there 
 be any. The recital also, if there be any, is for the most part con- 
 tained in the premises. 
 
 i^J) A lease to one for life habendum to his three sons successively, 
 but omitting to mention the sons in the premises of the deed, was 
 held to be for life of the father only, and that the sons should not 
 take in possession or by way of remainder : for it being limited to 
 
 (-) i; East, lOS.^;"^' "■ ' C'^j 15 East, 2^4. (<;) i Sir. SSS- 
 
 (V) Cio. lili/.. 658. (r) She]). Touch. 75. (/) Cio. Eliz. 58.
 
 Sect. II.] (ind how it may he made. 1 1 
 
 the father for his life, that was a greater estate than for the hvcs of 
 others ; and the three sons were named as persons to have an estate, 
 and not to make a limitation of an estate. 
 
 The habendum et tenendum is that part of the lease (o), which begins 
 with " to have and to hold," and properly succeeds the premises. 
 'The ofRce of the habendum is to name the lessee, and to limit the cer- 
 tainty of the estate. It may also abridge or alter the generality of 
 the premises [b). The habendum^ in short, limits, enlarges, ascer- 
 tains, and fixes, the meaning of the premises, but it cannot con- 
 tradict them. The tenendum was formerly used to denote the lord of 
 whom, and the tenure by which, the estate was to be holden, which 
 has long been unnecessary; it is retained merely by custom. 
 
 If a man have a lease for years of land, and he, reciting this, by 
 the premises of the deed grants all his estate in the land, to have 
 and to hold the land or the term after his death, or for part of the 
 time only ; in this case the habendum is void, and the whole estate 
 passes immediately by the premises (c). 
 
 An exception is a clause in a deed, whereby the lessor excepts 
 something out of that which he has granted before by the deed : and 
 being the act and words of the lessor, shall be taken strictly against 
 him {d). But {e) where an exception does not defeat the grant, or 
 is contrary to it, it must stand. In every good exception, these 
 things must always concur; i. the exception must be by apt words, 
 as <* saving and excepting," ^c. 2. it must be of part of the thing 
 demised, and not of some other thing; 3. it must be part of the 
 thing only, and not of all, the greater part, or the effect of the 
 thing granted : an exception therefore, in a lease, which extends to 
 the whole thing demised, is void (^f) ; 4. it must be of such a thing 
 as is severable from the premises demised, and not of an inseparable 
 incident; 5. it must be of such a thing as he that doth except may 
 have, and which properly belongs to him. It must be of a particular 
 thing out of a general, and not of a particular thing out of a parti- 
 cular thing ; 6. it must be certainly described and set down : there- 
 fore, if one demise a manor excepting one acre, without setting 
 forth which, or what acre it shall be, the exception is void. But {g) 
 if a man be possessed of a new house and an old house, and make a 
 lease with an exception of the new house for the use of the lessor 
 when he pleases to reside there, and at other times for the use of the 
 lessee, the new house is well excepted ; which exception is not 
 avoided by the words " at all times to be used by the lessee, when 
 the lessor doth not dwell there," for that sentence doth not enure as 
 an exception out of an exception, (which sets the matter at large,) 
 
 (a) Shep. Touch. 75. Com. Dig. tit. Fait. (£. 9.) (b) Lofft. 191. 
 
 (0 Shep. Touch. 114. i Salk. 346. S. P. {d) Shop. Touch. 77. 
 
 (0 IZ Mod. 15. Dyer 264. b. Kob. 173. (/) Cro. VXu. 6. 
 - it) 3 Salk. 156. 4Mod. U.S. C.
 
 12 Of the Requisites to a Lease, [Chap. I. 
 
 but only as a declaration of the lessor's intention in making the ex- 
 ception. The latter words, however, make the lessee tenant at will. 
 So if a man lease his houses, excepting his new house, during 
 / the term, this exception is good : but if he except it during life, it 
 y is void ; or if a man having a term of two houses for certain years, 
 grant his houses, excepting one of them, for life, this exception is 
 void ; for tlie words " during life," qualify the exception, and shew 
 his intent that the one house shall not be excepted during the whole 
 term, and so is void [a). 
 
 The reddendum or reservation is a clause in the lease, whereby the 
 lessor reserves some new thing to himself out of that which he 
 granted before (^): and this commonly and properly succeeds the 
 tenendum^ and is usually made by the words " yielding and paying,'* 
 and such like. In every good reservation, these things must always 
 concur: i. it must be by apt words j 2. it must be of some other 
 thing issuing or coming out of the thing granted, and not a part of 
 the thing itself, nor of some thing issuing out of another thing ; 3. 
 it must be of such a thing whereunto the grantor may have resort to 
 distrain ; 4. It must be made to one of the grantors, and not to a 
 stranger to the deed. 
 
 A covenant is a clause of agreement contained In the lease, whereby 
 either party is bound to do, perform, or give something to the other, 
 A condition, or proviso, is a clause of restraint in the lease, which 
 is commonly expressed by the words " provided," or " provided al- 
 ways," or words similar [c). 
 
 Formalities requisite. — It is requisite that the respective parties, the 
 lessor and lessee, whose deed the lease is, should seal, and now in 
 almost every case, sign it also : an instrument not under seal, is no 
 deed, for a seal is essential to a deed (<:/). The neglect of signing, 
 and custom of resting only on the authority of seals, remained very 
 long among us ; for it was held, in all our books, that sealing alone 
 was sufficient to authenticate a deed. The common form of attest- 
 ing deeds, " sealed and delivered," continues in great measure to 
 this day; notwithstanding that the statute 29 C. 2. c. 3. commonly 
 called " The Statute of Frauds and Perjuries," revives the Saxon 
 custom, and expressly directs the signing in all grants of lands and 
 many other species of deeds : in which, therefore, signing seems to 
 be now as necessary as sealing, though it has sometimes been held 
 that the one includes the other. 
 
 The lease must also be delivered, either by the parties themselves, 
 or their certain attorney or attornics, which delivery is also ex- 
 pressed in their attestation " sealed and dcUveredy' for delivery makes 
 it a lease (<?). Almost [f) any manifestation, however, of the party's 
 
 (a) la Mod. 15. (b) Shqi.Toiuh. 8o. (<r) Co. Lit. iS- ('^) ^ ■'"• ^- ^'95- 
 
 2 Bl. Com. 197, 3 Iiiil, 169. [e) Co. Lit. 36. a liL Com. 307. (/) i Vcs. jiin. ao6.
 
 Sect. II.] and how it may he made, 13 
 
 intention to deliver, if accompanied by an act importing the same, 
 will constitute a delivery. If the date be false or impossible, the de- 
 livery ascertains the time of it. If another person seals the deed, 
 yet if the party delivers it himself, he thereby adopts the sealing, 
 and, by a parity of reason, the signing also, and makes them both 
 his own. Every deed shall be intended to be delivered on the day it 
 bears date, unless the contrary be proved. 
 
 The last requisite is the attestation or execution of the lease in the 
 presence of witnesses, though this is necessary rather for the pre- 
 servation of the evidence, than to constitute the essence of the deed. 
 Ever since the reign of Henry VIII. the witnesses have usually sub- 
 scribed their attestation, either at the bottom or on the back of the 
 deed : but such actual subscription by the witnesses is not required 
 by law, though it is prudent for them so to do in order to assist their 
 memory when living and to supply their evidence when dead. When 
 a deed has a subscribing witness, he alone (if living and to be 
 found) can prove its execution, and he may be compelled to give 
 evidence, for, by subscribing his name as a witness, he undertakes to 
 give evidence at a proper time, and in a proper manner ; but if when 
 called he deny the deed, other witnesses may be called to prove it. 
 If however no intelligence can be obtained respecting the subscribing 
 witness after reasonable inquiry has been made, or if he be insane, 
 &c. proof of the hand-writing of the contracting party and of the 
 witness will be sufficient. 
 
 A lease by deed may be avoided or rendered of no effect, if it 
 wants either i. proper parties and a proper subject-matter [a) ; 2. writ- 
 ing, (or printing) on paper or parchment duly stamped ; 3. suffi- 
 cient and legal words properly disposed ; 4. reading, if desired, 
 before the execution {b) for not reading a deed to a person in 
 the rough draft, nor in the engrossment before execution, is a 
 badge of fraud; 5. sealing, and by the statute of Frauds, in most 
 cases, signing also ; or 6. delivery (r). Without these essentials it 
 is void ab initio. It may also be avoided by matter ex post facto : as 
 I. By erasure, interlineation, or other alteration in any material 
 part [d). If a deed be altered by a stranger, in a point not material, 
 this does not avoid the deed ; but otherwise, if it be altered by a 
 stranger in a point material, for the witnesses cannot prove it to be 
 the act of the party, where there is any material difference : an im- 
 material alteration, however, does not change the deed, and conse- 
 quently the witnesses may attest it without danger of perjury. But 
 if the deed be altered by the party himself, though in a point ma- 
 terial, yet it avoids it, [unless a memorandum thereof be made at 
 the time of the execution and attestation. 2 BI. Com. 308.] for the 
 
 (a) z Bl. Com. 308. (i) 2 Atk. 327. 
 
 (0 Cro. Car. 399. Bull. N. P. 267. {/) a Str. I160. 
 6
 
 1 4 Of the Requisiles to a Lease, S;c. [Ciiap. I. 
 
 law takes every man's act most strongly against himself. So, if 
 there be several covenants in a deed, and one of them be altered, 
 this destroys the whole deed ; for it cannot be the same, unless every 
 covenant of which it consists be the same also. 2. By breaking off, 
 or defacing the seal, unless, indeed, it be done by accident. Thus, 
 on an indenture to guide the uses of a common recovery being 
 offered in evidence, with the seals torn off, yet, it being proved to 
 have been done by a little boy, the indenture was allowed to be read. 
 3. By delivering it up to be cancelled ; that is, to have lines drawn 
 over it in the form of lattice work, or cancelliy though the phrase is 
 now used figuratively for any manner of obliterating or defacing 
 it (a). 4. By the disagreement of such whose concurrence is necessary 
 in order for the deed to stand: as the husband where a feme-covert is 
 concerned ; an infant, or a person under duress, when those dis- 
 abilities are removed ; and the like [b). 5. By the judgment or de- 
 cree of a court of judicature. This was antiently the province of 
 the court of Star Chamber, and now is that of the court of Chan- 
 cery : and is exercised when it appears that the deed was obtained 
 by fraud, force, or other foul practice, or is proved to be an absolute 
 forgery ; in any of which cases, the deed may be avoided either in 
 part, or totally, according as the cause of avoidance is more or less 
 extensive. 
 
 Of a Lease by writing without deed. 
 
 Although the court will presume the lease to be by deed, a lease 
 for a term of years may be created or assigned by writing without 
 deed, provided the instrument be signed by the party and properly 
 stamped {c). For by the stat. 29 Car. 2. c. 3. /. 3. it is enacted that 
 " No leases, estates, or interest either of freehold or term of years, 
 or any uncertain interest (not being copyhold or customary interest) 
 of, in, to, or out of any messuages, &c. shall be assigned, granted, 
 or surrendered, unless by deed or twte in writirigy signed by the party 
 50 assigning, granting, or surrendering the same, or their agents 
 thereunto lawfully authorized by writing, or by act and operation of 
 law." 
 
 Of a Lease by parol demise. 
 
 A lease may likewise be made by parol demise, or verbal contract ; 
 provided it does not exceed the term of three years, to which period 
 it is limited by the provisions of the stat. 29 Car. 2. c. 3. commonly 
 called the statute of Frauds and Perjuries. 
 
 By that statute it is enacted, that all leases, estates of freehold, or 
 term of years, created by parol and not put into writing and signed 
 
 («) a Bl. Com. 308. (i) a Bl. Com. 309. 
 
 (#} 1 'itr. _<;is- a Will. 26. 5 Dii.r. aSa;.
 
 Sect. III.] Of registering Leases. 15 
 
 by the parties making the same, or their agents thereunto lawfully 
 authorized by writing, shall have the effect of estates at will only ; 
 except leases not exceeding three years from the making, whereupon 
 the rent reserved amounts to two thirds of the improved value ; and 
 no such estate or interest shall be granted or surrendered but by deed, 
 or note in writing. A parol lease therefore for a longer period than 
 three years, enures only as a tenancy ai nvilly and until the lessor does 
 some act acknowledging the lessee as his tenant, the lessee may be 
 ejected at any moment. But when the lessor has accepted rent, or 
 otherwise acknowledged a tenancy, the lessee becomes tenant from 
 year to year, and holds under the terms of the lease in all respects 
 except as to the duration of the term (a). 
 
 A lease for three years to commence infuturo by parol, is not war- 
 ranted by the statute of Frauds [b). 
 
 But a lease by parol for a year and a half, to commence after the 
 expiration of a lease which wants a year of expiring, is a good lease 
 within the statute ; for it does not exceed three years from the 
 making {c). 
 
 If land be leased to J. for a year, and so from year to year as long 
 as both parties shall agree, this is a lease for two years certain ; and 
 if the lessee hold on after two years, he is not a lessee at will, (as the 
 old opinion was) but for a year certain, and his lease is not determi- 
 nable till that year be ended ; for his holding on is an agreement to 
 the original contract : and such executory contract is not void by the 
 statute of Frauds, for there is no term for above two years ever sub- 
 sisting at the same time ; and there can be no fraud to a purchaser, 
 for the utmost interest that can be to bind him can be only for one 
 year. But if the original contract were only for a year at 8/. per ann. 
 rent, without mentioning any time certain, it would be a tenancy at 
 will after the expiration of the year ; unless there was some evidence, 
 by a regular payment of rent annually, or half yearly, that the intent 
 of the parties was that he should be tenant for a year {d). 
 
 Section III. Of registering Leases, 
 
 The registry of deeds has been rendered necessary in particular parts 
 of the kingdom, by certain statutes passed at various periods of time, 
 in order to prevent the frauds which were practised by means of se- 
 cret transfers and prior mortgages. 
 
 The statute 2 and 3 Ann. c. 4. enacts, that a memorial of all deeds 
 and conveyances niade and executed in the West-Riding of the 
 
 (a) 3 T. R. 16. 4 T. R. 680. 8 T. R. 3. 5 T. R. i6z. (*) la Mod. 610. 
 
 »Ld. Ray. 736. (0 Bull. N. P. 177. i Str. 651. (a-) Bull. N, P. 84. 
 
 Cro. Eliz.775. iSalk. 414. i Wils. a6a, 
 
 7
 
 16 Of registering Leases, [Chap. I. 
 
 county of Tork^ after September 29, 1 704 ; whereby any honors, 
 manors, lands, &c. may be any way affected in law or equity, may, 
 at the election of the party or parties concerned, be registered in an 
 office to be kept at Wahjieldj in the said Riding, for that purpose \ 
 which memorial must be written and directed to the register of the 
 said office ; and must be under the hand and seal of some or one of 
 the grantors, or grantees, his or their guardians or trustees, attested 
 by two witnesses, one v/hereof to be one of the witnesses to the exe- 
 cution of such deed or conveyance : which witness shall, upon oath 
 before the said register or his deputy, prove the signing and sealing 
 of the said memorial, and the execution of the deed or conveyance 
 therein mentioned ; and that every such memorial shall contain the 
 date of such deed or conveyance, and the names and additions of all 
 / the parties thereto, with the places of their abode; and shall also 
 
 i mention the honors, manors, lands, ^c. contained in such deed, Isfc, 
 
 r j.< and the names of the parishes, ^c. wherein they are situated ; every 
 
 deed or conveyance that shall, at any time after such memorial is so 
 registered, be made and executed of the honors, manors, lands, ^c. 
 or any part thereof contained in such memorial, shall be adjudged 
 fraudulent and void against any subsequent purchaser or mortgagee 
 for valuable consideration ; unless such memorial thereof shall be re- 
 gistered as the act requires, before the registering of the memorial of 
 the deed or conveyance under which such subsequent purchaser or 
 mortgagee shall claim. 
 
 The statute 6 Ann. c. 35. contains provisions of a similar nature 
 with respect to the East-Riding of the same county, and the town of 
 Kingston-iipon-HuIl, and appoints the Register-office to be kept in Be- 
 verley in the said Riding. 
 
 The statute 8 G. 2. c. 6. contains provisions of a similar nature 
 with respect to the North-Riding of the same county. 
 
 The statute 7 jtinn. c, 20. contains provisions of a similar nature 
 with respect to the county of Middlesex. The Master of the Kin^s 
 Bench to be the Register who may appoint a deputy, both of them to 
 be under the controul of the Lord Chancellor^ by whom rules may be 
 made for the management of the office, which is to be kept in or 
 near the Inns of Court or Chancery. The registers to endorse a 
 probate of every deed so registered, which certificate shall be allowed 
 as evidence of such registry in all courts of record whatsoever. Upon 
 certificate and proof made to the register that money due on a mort- 
 gage entered in the registry has been satisfied, the register shall make 
 an entry thereof in the margin against the enrollment. 
 
 By statute 25 G. 2. c. 4. the deputy of the chief clerk of the King^s 
 
 Bench y is appointed a register for Middlesex y instead of the chief clerk. 
 
 By these statutes, deeds, conveyances, and devises by will shall be 
 
 void against subsequent purchasers and mortgagees, unless registered
 
 Sect. HI.] Of registering Leases. 17 
 
 before the conveyances under which they claim ; also no judgment, 
 statute, or recognizance, shall bind any lands in those counties, but 
 from the time a memorial thereof shall be entered at the Register-of- 
 fice. But the acts do not extend to copyhold estates, leases at rack- 
 rent, or to any leases, not exceeding twenty-one years, where the 
 possession goes with the lease ; nor to any chamber in the inns of court. 
 
 The intention of the register act plainly is to secure subsequent 
 purchasers and mortgagees against secret conveyances and fraudulent 
 incumbrances [a). 
 
 Where a person had no notice of a prior conveyance, there the re- 
 gistering of his subsequent conveyance shall prevail against the prior; 
 but if he had notice of a prior conveyance, then that was not a secret 
 conveyance by which he could be prejudiced. The enacting clause 
 which says " that every such deed shall be void against any subse- 
 quent purchaser or mortgagee, unless the memorial thereof be regis- 
 tered, kd'c." gives them the legal estate, but does not say that such 
 subsequent purchaser is not left open to any equity which a prior 
 purchaser or incumbrancer may have ; for he can be in no danger 
 where he knows of another incumbrance, because he might then have 
 stopped his hand from proceeding. — The operation of the register act 7 
 Ann. c. 20. and that for the inrollment of bargains and sales 27 H, 
 8. and the construction of them, are the same ; and it would be a most 
 mischievous thing, if a person taking advantage of the legal form ap- 
 pointed by an act of parliament, might under that protect himself 
 against a person who had a prior equity, of which he had notice (a). 
 
 The register act is notice to every body, and the meaning of it was 
 to prevent parol proofs of notice [b). It is only in cases of fraud 
 that the court of Chancery have broke in upon the act, although one 
 incumbrance was registered before another : and though clear notice 
 is a proper ground of relief, suspicion of notice will not suffice. 
 
 A registered conveyance therefore of premises in Middlesex for a 
 valuable consideration, was established against a prior devise not re- 
 gistered ; the evidence of notice, which ought to amount to actual 
 fraud, not being found (c). 
 
 But notwithstanding that it was said that the register act is notice 
 to every body, registration in Middlesex of an equitable mortgage 
 was held not presumptive notice of itself to a subsequent legal mort- 
 gagee, so as to take from him his legal advantage {d). 
 
 So, after an assignment of a mortgage, payments to the mortgagee 
 without notice, must be allowed by the assignee ; the registry, (the 
 premises being in Middlesex) not being notice for this purpose {e). 
 
 Registering an assignment is not registering the lease. Therefore, 
 where the defendant claimed under a lease made in 1730, which was 
 
 (a) 3 Atk. f)$X'%. {b) % Atk. 375. Ambl. 436, s. c, {c) 3 Ves. jun. 478. 
 
 {<£) Ambl. 678. {e) t Ves. jun. 389. 
 
 c
 
 ^J 
 
 18 Of registering Leases. [Chap. I. 
 
 soon after mortgaged, and in 1731, sold out and out to the defend- 
 ant ; the original lease was not registered, but the first mortgage of 
 it, and the defendant's purchase were : and it not being a lease at 
 rack-rent, the question was, whether this was a registry within the 
 meaning of 7 Ann. c. 20 ? and the Chief Justice (Holi) held it not to 
 be sufficient: for the act says the deed under which the party claims, 
 with the witnesses' names, shall be registered ; and of this a subsequent 
 purchaser can have no notice by the bare registry of the assignment, 
 and it is also required that the original be produced to the officer (a). 
 
 On a proviso in a lease of lands of the Duchy of Lancaster^ according 
 to Stat. 27 H. 8. c. II. that it should be enrolled with the auditor; 
 the certificate of the auditor on the margin was held to be sufficient 
 evidence of the enrollment (1^). 
 
 If a memorial is executed by any party to a deed, resident in the 
 metropolis, whether it be grantor or grantee, and it is convenient to 
 the witness to attend at the registering office, the oath of such execvi-fi 
 tion is administered verbally, in the following terms : " You swesiri 
 that you saw this memorial signed and sealed, and the deed to which 
 it refers duly executed by the party (or parties) thereto, whose ex^ 
 cution you have attested:" {c) and it is not necessary, in such case;, 
 to affix an affidavit stamp, or any other, to the parchment on which 
 such memorial is written. But if the memorial is necessarily executed 
 by all parties in the country, and there sworn, the affidavit must be 
 engrossed on the proper stamp, and may be either written under, or 
 annexed to, the memorial. It must be on parchment, and its form 
 will be found among the precedents in the Appendix. 
 
 It being often found more convenient to obtain the registry of an in- 
 strument by a representative of a deceased party, under some one of 
 the designations of heir, executor, administrator, guardian, or trustee, 
 than by any of the survivors, who if grantors may perhaps hesitate to 
 do justice-, and as the direction of the act does not convey a very dis- 
 tinct idea of the manner in which the registry by such representative 
 is to be effi^cted, it may be useful to premise, that the instrument to 
 be registered, notwithstanding it is already sufficiently executed for 
 general legal purposes, must, in addition, be sealed and delivered by 
 the person requiring the registry, as if he was a party in his own 
 right ; {c) and such person must also sign and seal a memorial, which 
 win be varied from the usual form where it refers to witnesses, [See 
 Appendix.] An alteration in this case is to be written under, or in- 
 dorsed on the instrument in the following terms : *< Sealed and de- 
 livered by C D. one of the executors (or otherwise) of the within- 
 named A. B. (for the purpose of registering) in the presence of 
 ." In respect to the parties to the deed residing out of town, if 
 
 (a) % Str. 1064. (Ji) Doug. 56. (t) Rit;gc on rcgistaing Deeds, 74.
 
 Sfect'. III.] Of registering Leases. 19 
 
 Such deed appears properly executed and attested, the proof of its 
 execution, and that of the memorial by any one of the parties (conso- 
 nant to the form of oath contained in the preceding paragraph) will 
 render any affidavit from the country useless : neither is it material 
 that the witness should see the same party execute the deed who 
 signs and seals the memorial ; for instance, if the deed be made from 
 A. to B. and the witness attests the execution of the deed by the 
 former, his seeing the memorial executed by B. will suffice. It 
 wall be requisite, however, in such memorial to state the other attes- 
 tation, (or attestations, if more than one) to the deed, with the de- 
 scriptions of all the witnesses. [For more particulars respecting these 
 Acts, the reader is referred to Mr. Rigge'a Observations on the Sta- 
 tutes for registering Deeds,] 
 
 ' A lessee of land in the Bedford Level cannot object to an action 
 by his landlord for a breach of covenant in not repairing, that 
 the lease was void by the stat. of 15 Car. 2d. c. 17. for want o£ 
 being registered, such act, enacting that " no lease, &c. should 
 be of force, but from the time it should be registered," not avoid- 
 ing it as between the parties themselves, but only postponing its 
 priority with respect to subsequent incumbrances registering their 
 titles before {a). 
 
 (a) 10 Eaft, 350. 
 
 CHAPTER II. 
 
 Section I. Of Agreements for Leases, and the Remedies 
 
 thereon. 
 
 Section II. Of Stamps required to Leases and Agreements, 
 
 Section I. Of Agreements for Leases, and the Remedies 
 
 thereon, 
 
 TT7E have already seen that where an agreement for a lease con- 
 ' ^ tains words of present demise, and there are circumstances 
 from which it may be collected that the tenant was meant to have an 
 immediate legal interest in the term, such an agreement will amount 
 to an actual lease ; and also, on the other hand, that, although words 
 of present demise are used, yet if it appears on the whole, that no 
 legal interest was intended to pass, and that the agreement was only 
 preparatory to a future lease to be made, the construction will be 
 governed by the intention of the parties, and the contract will be held 
 not to amount to more than merely an agreement for a lease, which 
 equity will enforce. 
 
 C2
 
 4 
 
 20 " Of Agreements for Leases, [Chap. II. 
 
 An agreement to lease at a certain rent, and that the lessor should 
 not turn out the tenant so long as he paid the rent, and did not 
 sell, &c. any article injurious to the lessor's business, creates only 
 a tenancy from year to year, determinable by either party giving 
 a regular notice to quit, for it must otherwise operate, as, a jLease 
 for life, which cannot be created except by deed {a)., =r-r,**.=,( ,. ^.jg, 
 It was formerly held that an agreement for a lease formed as valid 
 a defence to an action of ejectment as a lease itself would do; but it 
 is now clear that an agreement for a lease cannot in any case avail at 
 law after a regular notice to quit (J)). i 
 
 An agreement to make a lease is a good lease in equity, and a con- 
 firmation of such lease by him in remainder is a good lease. Hamilton 
 V. Lady Cardress, H. Brown^s Cas. in Pari, by Tomlins, ".isdj' 
 
 An agreement for a lease from a dean and chapter, executed 
 by the dean for himself and chapter, though signed by him only, shall 
 bind the chapter notwithstanding (c). "'rails 
 
 If an agreement be by A. B. and C. to make a lease, and it is .exe- 
 cuted by A. it shall be decreed that B. and C. who were the son;§,pf 
 A. shall execute it, though the agreement was by parol ; for It was 
 out of the statute (J). 
 
 With respect to parol agreements, it is an established rule, [e) that a 
 parol agreement, part performed^ is not within the provisions of the 
 statute of Frauds, but will be decreed to be executed by a court of 
 equity ; for where a part of the agreement is performed on one side, 
 it is but common justice that it be carried into execution, (f) Plea, 
 therefore, of the statute of Frauds to a bill for discovery of a parol 
 agreement part performed will not be allowed. So a parol agreement 
 confessed or in part executed, is binding [g). „^^ 
 
 As to what acts amount to a part performance, the general rule is, 
 (h) that the acts must be such as could be done with no other view or 
 design than to perform the agreement, and not such as are merely in- 
 troductory or ancillary to it. A tender of conveyances, therefore, is 
 not part performance of an agreement ; it must be something in actual 
 execution of the contract, not merely towards the execution : thus, in 
 a letter, " I will give 16,500/." answer, " I will not take less than 
 17,000/." answer returned, "I will give 17,000/." this is not an 
 agreement executed in writing within the statute of Frauds (i). 
 
 Delivery of possession, however, or payment of money, is a part 
 performance of an agreement not reduced into writing : {k) for deli- 
 very of possession by a person having possession to the person claim- 
 ing under the agreement is a strong and marked circumstance (/). 
 
 (<i) z r.aft, 165. (i) Cowp. 437. Bro. R. 397. I T. R. 735. {c) Com. Dig. tit. 
 
 Agreement, (a C. I.) a Atk. 44. (r/) i Vern. aiO. (e) 2 Bro. R, 566. a Atk. 
 
 100. X Str. 783. (/) 1 Vcs. 397. ((t) Ibid. 441. (/j) Ambl. jb6. Bip. R. 41a. 
 {$) Lofft. 786. [li) 3 Atk. 4. (/) 3 Ves. jun. 381. 
 
 6
 
 Sect. I."l and the Remedies thereon. 21 
 
 THuS} upon an agreement for the surrender of a term where the 
 lessor accepts the key, he shall be bound to accept of the surrender [a). 
 — But though taking possession, or such other act in pursuance of an 
 agreement, is sufficient evidence to have the agreement decreed, yet the 
 circumstance of vendees ordering conveyances to be drawn in pursu- 
 ance of a parol agreement, and going several times to see the premises, 
 and a letter from the vendor, mentioning the agreement, but not the 
 price, will not induce the court to decree a performance ; nor will 
 sending an appraiser to value the thing agreed for {h). 
 
 So in another case, it is said that where a man, on promise of a 
 lease to be made to him, lays out money in improvements, he shall 
 oblige the lessor afterwards to execute a lease, because it was executed 
 on the part of the lessee {c). 
 
 Therefore, {d) where a lessor made a verbal promise to his lessee, 
 to secure him in the possession of the premises during the lessee's 
 life, in consequence of which promise the lessee made considerable 
 alterations and improvements, and after the lessor's death, a memoran- 
 dum of this promise was found among his papers, wherein he ex- 
 pressed a hope that the same would be observed. Lord Thurloiu held 
 that the memorandum took the case out of the statute of Frauds, and di- 
 rected a lease to be made for ninety-nine years, determinable on his life. 
 But the bare entry of a steward in his lord's contract book with 
 his tenants is not an evidence of itself that there is an agreement for 
 a lease between the lord and one of the tenants, but must be sup- 
 ported by other proof {e). 
 
 Plaintiff, pursuant to a parol agreement for a building lease of 
 Wildhouse, had proceeded to pull down part and build part. Before 
 any lease executed, the owner of the soil died. The defendants, his 
 representatives, knew nothing of the matter, and insisted on the 
 statute of Frauds. The Lord Keeper dismissed the bill, but on ap- 
 peal to the Lords in Parliament, his dismission was reversed, and a 
 building lease decreed [f). 
 
 If there be a parol agreement for a lease for twenty-one years, and 
 lessee enter and enjoy for several (as for example, six) years, he shall 
 not, upon a bill brought to compel him to execute a counterpart for 
 the residue of the term, plead the statute (^). 
 
 For an agreement, though not in writing, being executed on one 
 part and an enjoyment accordingly, equity will not avoid it, as it has 
 been already carried into execution {Jo). 
 
 But {i) where a bill was by a tenant of a farm for a specific per- 
 formance of a parol agreement for a new lease, stating improvements 
 made at a considerable expense and continuance of possession after 
 
 (<?) 3 Vern. 113. i Atk. la. {b) \ Eq. Ca. Abr. ao. {c) Prec. Cha. 561. 
 
 {d) 3 Bro. R. 149. (f) I Atk. 499. (/) % Vern. 456. \ Eq. Ca. Abr. ai. 
 
 (^) a Str. 783. (/j) Prec. Ch. 519. . (i) 3 Ves. jun. 378.
 
 22 Of Agreements for Leases, [Chap. II. 
 
 the expiration of the old lease, and payment of an increased rent 
 under the agreement, the plea of the statute of Frauds was ordered 
 to stand for an answer, with liberty to except. 
 
 Bill for specific performance of a parol agreement for a lease within 
 the statute of Frauds charging possession taken under the agreement 
 and other acts of part performance ; plea of the statute and answer 
 not denying the acts alleged as a part performance, but stating, that 
 being advised that he entered as tenant at will, he gave noticfetb 
 quit : plea overruled (a). 
 
 Though the agreement be by parol, yet if it be agreed to be reduced 
 into writingy and part of the agreement is executed, but the redttcinig 
 of it into writing is prevented by fraud, it may be good {b). '''" 
 
 Therefore, an agreement to assign a term and goods, and th^t It 
 should be put in writing, was decreed to be executed, it being part 
 of the agreement, that it should be put in writing, and part of die 
 money having been paid (c). 
 
 So, if a lease by y/. to B. is agreed by parol, and drawn and ih- 
 grossed by the counsel of JB. and afterwards executed by J. it shall 
 not be avoided by B. [d). 
 
 Bills were to have an execution of parol agreements touching leases 
 of houses, setting forth that in confidence of these agreements, the 
 plaintiffs had expended great sums about the premises ; and it was 
 alleged, that it was agreed, that the agreements should be reduced 
 into writing : the defendant pleaded the statute of Frauds. Lord 
 Xifig said, that the difliculty was, that the act makes void the estate, 
 but does not say that the agreement itself shall be void; and 'ftiiere- 
 fore, he thought, that if that subsisted so as to entitle the party to 
 damages at law, it might be decreed in equity, and directed that point 
 to be tried ; but as to the improvements made, his Lordship was 
 clearly of opinion that for such as were of use and necessity, and not 
 merely for humour and fancy, the party was entitled to have satis- 
 faction {e). '< e°i*fiq 
 
 Lease was not decreed upon expenditure in repairs and Improve- 
 ments under an alleged agreement proved by one witness, the answer 
 containing a positive denial of the agreement ; which denial was also 
 confirmed by circumstances. No relief upon general equity from ex- 
 penditure under the observation of the landlord by a tenant, but not 
 under any specific engagement or encouragement (y). 
 
 Where there Is an agreement by parol, and part of It executed, 
 equity will decree specific execution of the whole ; {g) but where 
 there is an agreement by writing executed, evidence cannot supply 
 any defect In that agreement, which was Intended to be part of that 
 
 (.») 4 Vcs. jun. 91, (i) I r.q. C.i. Abr. 19. (c) a Ch. Cn. 135, 6. 1 Vern. 151, 
 
 (J) Ikaai.a. (<•) i Kq. Ca.Abr. 20. (/) I a Vcs, jun. 78. 
 
 {g) Bunb. 65. 9 Mod. 6.
 
 Sect. I.] a7id the Remedies thereon, 23 
 
 agreement, but was not inserted in it : [unless, as is conceived, in 
 ■ case of fraud.] 
 
 Yet, if there is an agreement in writing for taking a house at 32/. 
 the owner to put it in repair, and afterwards a parol agreement for 
 40/. the owner having rebuilt with the tenant's consent, and the lessee 
 brings a bill for specific performance of the written agreement, parol 
 evidence may be given of the new agreement to rebut the equity 
 prayed {a). 
 
 So [b) if a bill is brought to carry into execution an agreement for 
 the lease of a house, the defendant, the lessor, shall be admitted to 
 parol proof that the plaintiff, who wrote the agreement, omitted to 
 make the rent (which was reduced to 9/. instead of 14/. the former 
 rent,) payable, clear of all taxes. 
 
 Sealing is not necessary in order to bring an agreement out of the 
 statute of Frauds [c). 
 
 A letter takes a parol agreement out of the statute : but wherever 
 a letter is relied on as evidence of an agreement, it must be stamped 
 before it can be read j it must also furnish the terms of the agree- 
 ment, or must at least refer to some written agreement in which the 
 (^erms are set forth [d). 
 - ;■ There have been cases where a letter written to a man's own agent, 
 and setting forth the terms of an agreement as concluded by him, has 
 been deemed to be a signing within the statute, and agreeable to the 
 provision of it [e). 
 jj>-j. Therefore, (y) if there be a complete agreement in writing, and 
 • i^a person who is a party, and knows the contents, subscribes it as 
 a witness only, he is bound by it, for it is a signing within the 
 Statute of Frauds ; which was passed in order to prevent any thing 
 depending either on the mistake or the perjury of witnesses. 
 \- If there be an agreement for a lease in the county of N. where the 
 lessor usually repairs, at 30/. per ann. without saying who shall re- 
 pair, if it appear that the land is of greater value, it shall be decreed, 
 that the lessee shall take a lease and do the repairs, and pay 30/. per 
 ann. without deduction, except for taxes by parliament {g). 
 Articles of agreement may be rectified by the minutes [h). 
 But though a formal mistake in a deed may be rectified by articles 
 of which it purports to be an execution, essential additions cannot be 
 made to a conveyance from articles of which it does not purport to 
 be an execution : nor can the transaction be rescinded by the court (/). 
 The court will not relieve against a contract in writing, unless 
 there is express proof of the mistake of the intention of the parties (k). 
 Effect of an indefinite representation by a vendor, as that a lease- 
 
 (fl) a Ves.jun. 229. (b) 3 Atk. 388. (c) Prec. Ch. 17. {d) 2 Bro. R. 3a. 
 
 I Str. 426. I Atk. 12. (f) 3 Atk. 503. (/) Ibid. (^) a Vein. 231. 
 
 (i) I Ves.jun. 456. («■) 3 Ves. jun. 184. (i) 3 Yes. juii. 317.
 
 24? Of Agreements for Leases^ [Chap. II, 
 
 hold estate was nearly equal to freehold, behig renewable upon a 
 single fine, may, connected with certain circumstances, be fraudu- 
 lent, and form a ground for rescinding the contract [a). 
 
 It has been held that if a bond is given with a penalty, a specific 
 performance shall not be decreed : for the party has relied upon the 
 penalty {b), ■ c ' 
 
 But this may well be doubted as a general proposition : [c) for v it 
 is clear that a bill lies for a specific performance though a remedy be 
 at law ; for the remedy by specific performance is superior in many 
 cases to that of damages : and a penalty has never been held to re- 
 lease parties from their agreement, for though incurred they must, 
 perform it notwithstanding (^). 
 
 Thus where a proviso was in articles for the purchase of an estate, 
 that if either party should break the agreement he should pay loo/. to 
 the other, and the defendant on being oifered two years' purchase more 
 accepted it notwithstanding that agreement ; Lord Hardiuicke decreed 
 a specific performance {e). 
 
 The constant doctrine of the court is, that it is in their discretion 
 whether they will decree a specific performance, or leave the plaintiff > 
 to his remedy at law (/). 
 
 Specific performance of an agreement to build may be decreed if 
 sufiiciently certain : but a general covenant to lay out a certain sum 
 in a building of a certain value cannot be so executed (g^). 
 
 A. agrees for the lease of certain lands for three lives j the lease is 
 prepared according to the agreement, except the insertion of a clause 
 to restrain the tenant from alienation without the consent of the 
 landlord : this clause being no part of the agreement, the landlord is 
 bound to execute a lease without it {h). 
 
 (Jn a covenant to build, the lessors are entitled to come into a 
 court of equity for a specific performance, but not on a covenant to 3 
 repair (/). ^si'' rt« sev 
 
 Specific performance may be decreed against one become a lunatic 
 since the agreement, if the legal estate is in trustees {k). 
 
 In bills for specific performance, the court never gives relief where 
 the act is impossible to be done, but leaves the party to his remedy at 
 law (/). 
 
 If an agreement be otherwise than certain, fair, and just in all its 
 parts, the court will not decree a specific performance {in). 
 
 Specific performance will not be decreed of an agreement to renew 
 a lease in consideration of money previously laid out by the tenant ; 
 such promise is nudum pactum ; nor will the case be varied by money 
 
 (-0 14 Vc.jim. 144, (/;) Cli. Ca. 188. (c) I Ves.jun. 542. 
 
 (</) 2Alk. .^71. (<•; Ihid. (/) Ibicl. 389. 
 
 Of) .? Vcs. jiiii. 104. -^ (h) I Bro. Ca-.. in Tarl. 2,i-\- (') 3 Atk. 515. 3 Bro. R. 166. 
 
 (/) I Vci.jun. 82. (0 i Aik. 57J. («) 3 Aik. 386.
 
 Sect. I.] and the Remedies thereon, 25 
 
 having been expended by him after such promise. — But if previous to 
 such promise, the tenant had signified his intention to lay out money, 
 and on that consideration the promise had been made, a specific per- 
 formance would be decreed {a). 
 
 Specific performance of articles to grant a lease to the plaintiff 
 decreed, though he had contracted to under-let, contrary to those 
 articles (b). 
 
 But the court will not decree a specific performance of an agree- 
 ment to grant a lease, if under a clause for re-entry, the lease, when 
 granted, would be at an end by the tenant's acts ; except on the 
 ground of there having been a waiver of the forfeiture, and upon an 
 undertaking to give possession when required by the court, and to 
 pay the rent due {c), 
 
 B. treats with A. for a piece of land, intending to build a mill, to 
 which the consent of a corporation is necessary ; but A. refuses to 
 treat on condition ; B. fails in obtaining consent : this failure in his 
 speculation is no defence against a bill for specific performance (J). 
 
 A plea to a bill for a specific performance of an agreement for a lease 
 to the plaintiff, and for an injunction against an ejectment, that the 
 defendant had, since the filing of the bill, taken the benefit of an in- ' 
 solvent act, was over-ruled (e). 
 
 So the bankruptcy of a person who has agreed to purchase does not 
 discharge the contract. It must be a very strong case, however, that 
 will induce the court to carry into execution an agreement between 
 landlord and tenant, the estate not being executed at law, where the 
 person, who is to become the tenant, has become a bankrupt (/*). 
 
 So, the court would not execute an agreement to grant a lease to a 
 man who had committed felony (^). 
 
 An agreement may be decreed to be delivered up on the ground of 
 surprise ; neither party understanding the effect of it ; as where there 
 was an agreement for a lease, with a covenant for perpetual renewal, 
 at a fixed rent of premises held under a church lease, renewable upon 
 fines, continually increasing. A single lease for 2 1 years was refused : 
 no terms of agreement for such an interest appearing ; and under the 
 circumstances permission to try the effect of it at law was also 
 denied {h). 
 
 Bill for specific performance of an agreement to grant a lease to the 
 plaintiff would, on evidence of his fraud, misrepresentation, and 
 insolvency, have been dismissed with costs, if not compromised (£). 
 
 A lessee's bill for the specific performance of an agreement was 
 dismissed, his interest being described as 50 years, the residue of a 
 
 {a) z Br. Ch. C. 140. 1 Eq, Ca. Abr. i8. (A) 3 Ves. jun. 59. (c) i Ves. & Beam. 68. 
 (^iBro. 567. (f) 1 6 Ves. jun. 466. (/) 3 Vcs.jun. ajj. (^) Ibid. 169. 
 
 ib) 16 Ves. jun. 72. (0 Ibid. 168.
 
 26 Of Ag^-eements for Leases, [Chap. 11. 
 
 terra free from incumbrances ; but being, in fact, a few years only 
 of an old term, and a reversionary term from another lessor, and old 
 incumbrances not shewn {a). 
 
 A. being in insolvent circumstances suffers another person to be- 
 come the apparent owner of the farm (though under a secret trust for 
 him.) A. shall not have against the landlord a specific execution of 
 an agreement made by him with the trustee, the landlord supposing 
 the trustee to have been the rightful owner and confiding in his 
 solvency, i ^che. Lef. 123. 
 
 So, specific performance was not decreed where there was conceal- 
 ment on the part of the vendor {b). 
 
 Even where one party to an agreement trifles or shews backward- 
 ness in performing his part of it(r), equity v/ill not decree a specific 
 performance in his favour; eepecially if the circumstances and situa- 
 tion of the other party are materially altered in the mean time. 
 
 But the refusal of a tenant to execute a lease when tendered, de- 
 claring himself satisfied with the agreement, cannot be considered 4s 
 repudiating the agreement, and is not a sufficient ground for refusing 
 a specific performance {d). 
 
 Remedies at Law. — If either of the parties to an agreement for a 
 lease refuse to perform the stipulations which it contains, besides the 
 relief which a bill in equity for a specific performance may afford 
 him, the party injured has one of two remedies at common law ; 
 namely, an action of debt, or covenant if the agreement be by deed, 
 or an action of debt, or special assumpsit^ if it be either by writing 
 without deed, or by parol, provided the contract be to be performed 
 within a year from the making thereof (^). 
 
 Covenant. — A covenant is the agreement or consent of two or more 
 by deed in writing, sealed and delivered, whereby either or one of 
 the parties doth promise to the other, that something is done already, 
 or shall be done afterwards. He that makes the covenant is called 
 the covenantor, and he to whom it is made, the covenantee {/)» 
 
 An action of covenant lies when a man covenants with another by 
 deed to do something and does it not ; and it lies upon a covenant in 
 any deed, whether indented or poll. But covenant does not He upon 
 an agreement without deed; but an action upon the case, except in 
 London, where covenant lies without deed, by custom (g). 
 
 In covenant all is recoverable in damages, and those will be what 
 the party can prove that he has actually sustained ; (*?>) therefore in 
 covenant it is sufficient to assign the breach in the words of the cove- 
 nant. 
 
 (a) II Vcs.jun. 337. (i) I Bro. 440. (<:) I Bro. Cas. in Pnrl. 136. 
 
 (rf) I Ves. juii. fi Bca. 73. (i) 29 C. Z. c. 3. (/) Shcp. Touch. 160. 
 
 li) Com. Dig. tiu Covenant, (A. i.) (A) Bull. N. P. 161.
 
 Secti I.] and the Remedies thereon. 27 
 
 ' * Assumpsit. — If the agreement be by writing without deed or by parol, 
 damages for the breach of it may be recovered in an action on the 
 case upon a special assumpsit. 
 
 By the statute of Frauds (a), no action shall be brought to charge, 
 isfc. upon any contract, or sale of lands or tenements, or any interest 
 in or concerning them, or upon any agreement that is not to be per- 
 formed within the space of one year from the making thereof, unless 
 the agreement, or some memorandum or note thereof, be in writing, 
 and signed by the party to be charged therewith, or by some other 
 person by him thereunto lawfully authorized. 
 
 One contracts with the owner of a close for the purchase of a grow- 
 ing crop of grass there, for the purpose of being mown and made 
 into hay by the vendee : this is a contract of sale of an interest in or 
 concerning land, within the 4th section of the statute of Frauds. 
 
 If a party has entered into a parol agreement for a lease, and a draft 
 of it is prepared (^), though the agreement is void under the statute of 
 Frauds, yet an indorsement by the party, referring to the draft, ad- 
 mitting the agreement, is sufficient within the statute. 
 
 An action may be brought in consideration that the plaintiff will 
 make a lease according to a former agreement {d); for the agreement 
 is not executed till the lease is made. 
 
 •'' So if an agreement be to assign a term of years, as well as where 
 it is for an interest created de novo (e ). 
 
 But in an action upon an agreement to deliver possession for 
 certain considerations subject to a forfeiture on failure by either party, 
 the person who was to deliver possession cannot sue for the for- 
 feiture, without shewing in his declaration a possessory title in him- 
 self{/). ^ .;.;,,.;-: 
 
 Ax:tion for money had and received on the common counts (g). 
 Defendant was possessed of a lease for years, which he sold to plain- 
 tiff for sixteen guineas, and at the time of the sale observed that it 
 was a good lease for seven years ; it turned out afterwards that the 
 lessor was tenant for life only, and had no right to make a lease for a 
 longer term than his own life j in consequence of which the plaintiff 
 was turned out of possession in two years after the assignment of 
 the lease had taken place, the lessor having died previously to the 
 bargain between the plaintiff and the defendant. The plaintiff 
 brought this action, therefore, to recover the money paid for the 
 lease, as paid on a consideration vi^hich had failed. On Leicester ob- 
 jecting to plaintiff recovering on this declaration, which contained 
 only the common counts, Lawrence^ J. referred to the case of Crips 
 V. Readcy 6 T. R. 606. tried before him at Oxford^ in which a lease 
 
 (a) 29 C. a. c. 3. (J,) 6 East, 655. (c) S Copin. 190. 
 
 (J) I Roll. iz. I IS. (e) I Vent. 361. - (/) Doug. 6zo. 
 
 Q) Matthews v. Hollinss. Cor. Lawrence, J. at Shrewsbury, Ox, Sum. Cir. MSS.
 
 28 Of Agreements for Leases, [Ghap. II. 
 
 had been sold by one as administrator, whose letters pf administra- 
 tion were afterwards repealed, and there he permitted the plaintiff tp 
 recover on a similar declaration, and the court of King's Ben^J|i cpOr 
 firmed his opinion. Verdict for the plaintiff. 
 
 *- But a contractor for the purchase of an estate to which the title 
 proves (without collusion) defective, is not entitled to any satisfac- 
 tion for the loss of his bargain {a) : for such contracts are merely on 
 condition frequently expressed, but always implied, that the vendor 
 has a good title ; if he has not, the return of the deposit, with in- 
 terest and costs, is all that can be expected, the purchaser cannot be 
 intitled to any damages for the fancied goodness of the bargain 
 which he supposes he has lost. 
 
 An agreement, though not under seal, may be declared on spe- 
 cially, in which case it may be said to bind the parties by its own 
 force : or the plaintiff may, in some instances, declare generally, and 
 give the written contract in evidence (^). 
 
 Where money has been paid under an agreement, which has not 
 been performed, it may be recovered in an action for money had and 
 received : and though the agreement be in writing, the party need 
 not declare specially (r). 
 
 Thus (d) A. having sold certain leasehold premises to B. assigned 
 them by indenture containing a proviso that B. should not assign 
 over until the whole of the purchase-money should have been paid, li 
 and B. and C. covenanted for themselves, their executors, administra- 
 tors, and assigns, for the payment of the money. The premises 
 having been taken in execution for a debt of B. who had not paid the 
 purchase -money, were sold by the sheriff to D. who paid down the 
 deposit, and agreed to complete the purchase on having a good title: 
 held, that the non-payment of the purchase-money by B. was a 
 sufficient objection to the title, and that D. might recover back his 
 deposit in an action for money had and received, 
 
 A. {e) agreed with B. to let him land rent-free, on condition that 
 A. should have a moiety of the crops ; while the crop was on , the 
 ground it was appraised for both parties ; A. declared in indebitatus 
 assumpsit for a moiety of the crop sold to B. without stating the 
 special agreement : and it was held that he might well do so, as the 
 special agreement was executed by the appraisement, and the action 
 arose out of something collateral to it, Semb. such an agreement 
 need not be in writing, under the statute of Frauds. 
 
 A. if) agreed in consideration of i o/. to let a house to B. which 
 A. was to repair and execute a lease of within ten days ; but B. was 
 to have immediate possession, and in consideration of the aforesaid, 
 was to execute a counterpart and pay the rent. B. took possession 
 
 {a) z HI. R. 1078. (i) 6 T. R, 319. (c) % Esp.R. 639. 
 
 U) 3 Bos. & I'ul. 181. \c) I Bos.& Pul, 367. (/) J East, 557-
 
 Sect. I.] and the Remedies thereon, 29 
 
 aftd paid the lo/. immediately; but u4. neglected to execute the lease 
 and make the repairs beyond the period of the lo days, notwithstand- 
 ing which B. still continued in possession ; held that B. could not by 
 quitting the house for the default of A. rescind the contract and re- 
 cover back the lo/., in an action for money had and received; but 
 could only declare for a breach of the special contract. 
 
 A. (a) agreed to under-let his house to B. the latter paying for the 
 furniture at an appraisement ; A. at the time that he quitted the 
 house, was in arrear for rent to his landlord : held therefore that B, 
 was excused from the performance of the agreement, for the furni- 
 ture would be liable to be distrained for the rent due by A, ? . •- ' 
 
 In an action (^) of assumpsit for non-performance of a confirafct for 
 the sale of a house with counts to recover back the deposit, the 
 plaintiff having in his first count alleged that the defendant who 
 was to make a good title, had delivered an abstract which was ** in- 
 sufficient, defective, and objectionable," the court obliged the plain- ' 
 tifF to give a particular of all objections to the abstract arising upon 
 Shatters of fact ; for the party ought to specify every mzttleiCiqii^gstl 
 ■wlhich he meant to rely upon at the trial. :h;ir/iv'- '-',,««-iM 
 
 A case (c) was sent to a jury by way of inquiry of damages by 
 the court of Chancery} where It appeared that the parties who ap- 
 plied to the court for a specific performance of an agreement, had 
 by their committee and surveyor, viewed without complaint, the pro- 
 gress of the party in repairing premises which they at last insisted, on 
 being rebuilt. 7 --5 
 
 A purchaser discovering an incumbrance, may retain so much for 
 it as remains in his hands (d). 
 
 lad 
 
 Section II. Of the Stamps required to Leases and Agree- 
 ments, 8^c, 
 
 A LEASE must be stamped as a lease by deed, though It be not by 
 deed; for it has been held that the statute 23 G. 3. r. 58. which im- 
 poses a stamp duty on <* indentures, leases, and other deeds," ap- 
 plies to every instrument that operates as a lease, whether it be by 
 deed or not {e\ 
 
 A deed is good though executed before it be stamped, provided 
 that when it is offered in evidence it be stamped, and with the pro- 
 per stamp appropriated to the particular instrument [f ). 
 
 "Whether or not the instrument were valid, by the revenue being 
 satisfied in point of amount of duty, though the particular stamp 
 or stamps were not used, was a point on which the court had, at 
 
 (a) 3 Bos. & Pul,l7a. {b) Ibid. 246. («) 3 Atk.517. 
 
 {d) I Ves. 88. (f) I T. R. 737- 3 Burr. 1563. (/) i Str.6»4. » Str. 716.
 
 30 Of the Stamps required [Chap. IL 
 
 different times, held contradictory opinions, but now by stat. 5^0 Gf. 
 3. c. 35. /. 15., and Stat. 55 G. 3. c. 184. s. 4. it is enacted that 
 wherever an instrument has been stamped with a stamp of equal 
 or greater value than such instrument required, but not of the pro- 
 per denomination, it shall nevertheless be deemed valid and effectual 
 in law, except where the stamp used on such instrument shall h^ve 
 been specially appropriated to any other instrument, by having its 
 name on the face thereof. 
 
 Though a parol lease for three years is good, yet if a man, through, 
 caution, will reduce it into writing, he must pay for the stamp, other- 
 wise the court are inhibited from receiving it in evidence [a). 
 
 Where an instrument contains a written contract of demise In its 
 general terms, with a several operation in respect to the different 
 tenants who sign it for different estates, at the different rents set 
 opposite their signatures, and one stamp only appears upon the paper, 
 it is matter of evidence to which contract such stamp applies j and 
 the circumstance of juxta-positlon of the stamp to the defendants* 
 signature, which stood untouched, while the other names appeared 
 to be cancelled, together with the date of the stamp-office receipt for 
 the stamp and penalty, which shewed that it had been affixed recently 
 before the trial, and there being no evidence of a dispute with any 
 other tenant, which could make the stamp necessary for another pur- 
 pose, are evidence that it was intended to be applied to the contract 
 with the defendant {b). 
 
 By the last stamp act, stat. 55 G. 3, c. 184. the following duties- 
 are imposed upon leases for lives or years. 
 
 For every lease granted in consideration of a sum of money by- 
 way of fine or premium, without any yearly rent, or with any yearly 
 rent under 20/., the same duty as for the conveyance on the sale of 
 lands for a sum of money of the same amount, (except leases for a 
 life or lives not exceeding three, or for a term of years determinable 
 with a life or lives not exceeding three, by whomsoever granted, and 
 also leases for a term absolute not exceeding 21 years, granted by 
 ecclesiastical corporations, aggregate or sole.) 
 
 For every lease at a yearly rent without any sum of money paid by 
 way of fine or premium, where the yearly rent shall not amount to 
 20/., i/. i where the same shall amount to 20/. and not to 100/,, 
 i/. \os.\ to 100/. and not to 200/., 2/.; to 200/. and not to 400/., 
 3/. ; to 400/. and not to 600/., 4/. ; to 600/. and not to 800/., 5/. ; 
 to 800/. and not to 1000/., 61. \ to 1000/. and upwards 10/. 
 
 For every lease with fine or premium, and also a yearly rent 
 amounting to 20/. and upwards \ both the ad valorem duties payable 
 for a lease in consideration of a fine only, and for a lease in con- 
 
 (<7) Dull. N. P. 169. (4) 13 East, a4i
 
 Sect. II.] to Leases and Agreements, S^c, SI 
 
 slderatlon of a rent only of the same amount, (except the leases 
 above excepted.) 
 ' For leases not otherwise charged i/. 15X. 
 
 For the counterpart of any lease charged with a duty not exceed- 
 ing i/., the same duty as the lease, for the counterpart of every other 
 lease i/. 10/. 
 
 And where the lease, (together with schedule, receipts, &c.) shall 
 contain 2,160 words or upwards, a further progressive duty of i/., 
 for every entire quantity of 1,080 words. 
 
 ' A lease for years made before this statute in consideration of a sum 
 certain, and at a pepper corn rent, does not require the ad valorem 
 duty chargeable upon leases under stat.. 48 G. 3. c. 149 (a), 
 
 (a) 4 M. & S. 43. 
 
 joc iiiVJl -•■' 
 . bnfi c^dilq' ' ■ ■ - 
 
 i>a7fi3^q£ 6, CHAPTER III. 
 
 Qfn:^ ''Parties to a Lease, 'wherein by >whom a Lease 
 
 \ /t5'A. , may be made. 
 
 Section I. Who may make Leases, and herein of Leases 
 by Tenants in Fee Simple, 
 
 "TT^ITH respect to the persons who are capable, by the common 
 ' ^ law, of making leases, it may be laid down, that all those who 
 are capable of alienating their property, or of entering into contracts 
 respecting it, may make leases, which will endure as long as their in- 
 terest in the thing leased, but no longer {a). 
 
 j As an estate in fee simple is the largest estate which a man can 
 have in lands, giving him a full dominion over property with an 
 aosolute power of alienation ; it necessarily includes the smaller 
 power of granting leases, which, consequently, he may do without 
 limitation or restraint. 
 
 Where lessor leased lands of which he was seised in fee, and other 
 lands of which he was seised for life with a power of leasing, at one 
 entire rent, and the lease was not well executed according to the 
 power, it was held that the lease was good after the lessor's death for 
 the lands in fee, though not for the other lands, for the rent might be '^ 
 apportioned {b). 
 
 GO Crui$. Dig. Leases. (i) a M. & S. »76. tfJuM, H^ *^'^
 
 C 32 ] 
 
 Section II. Of Leases by Tenants in Tail 
 
 An estate in fee tail, though an estate of inheritance, is of a li- 
 mited nature ; being a gift to a man and the heirs of his body, who 
 are prohibited from alienation, except by particular modes prescribed 
 by law. 
 
 If tenant in tail after the statute de doti'is had made a lease for 
 years and died, the lease was not absolutely determined by his death, 
 Ijut the issue in tail was at liberty either to affirm or avoid it, as he 
 thought fit. 
 
 Acceptance by tenant in tail of the rent or fealty, or bringing an 
 action for the recovery thereof, or an action of waste, were such acts 
 as amounted to a confirmation of the lease, because these plainly ma- 
 nifested his intent to continue the lessee in possession upon the terms 
 of his lease ; and by consequence such issue could never afterwards 
 avoid it during his own life {a). 
 
 If a tenant in tail makes a lease to A. for twenty years, and the 
 lessee makes a lease to B. for ten years, and then the tenant in tail 
 dies, and the issue accepts the rent of B. this is no affirmation of the 
 lease, because B. was under no obligation to pay his rent to him, and 
 is answerable for it over again to A. ; and therefore his payment to 
 the issue in tail was voluntary and in his own wrong, and the issue's 
 acceptance thereof not conclusive, more than if he had received it of 
 a mere stranger ; and, by consequence, the issue in tail may enter and 
 avoid the lease : but if the issue had accepted the rent from A. this 
 had amounted to a confirmation of the lease made to A. and by con- 
 sequence he could not after avoid the lease to B. which was derived 
 thereout (a). 
 
 But if A. had assigned five acres of the land in lease to B. for the 
 residue of twenty years, and the issue in tail had accepted the rent 
 from B. this would amount to a confirmation of the entire lease to 
 A. because the rent Issuing out of the whole and out of every part of 
 the land, B. as to these five acres, succeeded in the place of A, by 
 having his whole interest therein ; and then the issue in tail by ac- 
 ceptance of the rent from one whose part, as to him, was equally 
 chargeable with the whole rent, hath given his consent that the whole 
 estate chargeable therewith shall continue, though he chose to take 
 his rent out of part only ; for otherwise he would do injustice to A. 
 who would be liable to make recompence to B. for the overplus of 
 the rent, and yet have no recompence himself, if the issue might de- 
 feat the residue of the lease remaining in his hands [a). 
 
 If a tenant in tail makes a lease for ten years, to begin ten years 
 hence, and dies, and the issue within the ten years enters and makes 
 
 (a) Bac. Abr. tit. Leases (D.)
 
 Sect. II.] Of Leases In) Tenants in TaiL 33 
 
 a feofFment in fee, the feofFee, at the end of the ten years, shall have 
 election either to affirm and make good such lease, or to avoid it ; for 
 upon the death of tenant in tail, the possession was become vacant, 
 and none had a right to enter but the issue in tail, for the time of the 
 lessee's entry was not yet come ; then v/hen the issue enters generally, 
 his primary right was, in respect of the inheritance, descended to him 
 as issue in tail, and he had no occasion to direct his entry at that time 
 to any other purpose ; and therefore his entry shall be intended in 
 respect of the estate-tail descended to him ; and when after such 
 entry he makes a feoffment in fee to a stranger, this transfers the 
 possession just in the same plight as the issue in tail himself had it, 
 without any thing done to determine his election, one way or ano- 
 ther ; and then the same power of election passes incorporated in the 
 feoffment ; and the feoffee, when the time for making use thereof, is 
 come, may use it either to determine the lease by ousting the lessee, 
 or to affirm or make it good by acceptance of rent from him. 
 
 If tenant in tail make a lease for life, whereby he gains a new re- 
 version in fee so long as tenant for life lives, and he grants a rent- 
 charge out of the reversion, and afterwards tenant for life dies, 
 whereby the grantor becomes tenant in tail again, and the reversion 
 in fee is defeated ; yet, because the grantor had a right of the entail 
 in him, clothed with a defeasible fee simple, the rent-charge remains 
 good against him, but not against his issue {a). 
 
 A man seised in fee made a lease for ninety-nine years, if three 
 persons so long lived ; then he settled the reversion upon himself in 
 tail, with power to make leases for twenty-one years, and then he 
 made such a lease and died ; the son, who was the issue in tail, levied 
 a tine and sold the reversion ; the first lease determined, and the 
 court thought that the cognizee might avoid the second lease, because 
 it never was in the election of the tenant in tail, or his issue to avoid 
 it, they having conveyed away their estates before this second lease 
 was to commence ; for if tenant in tail make a lease to commence in 
 praseritif and convey away his estate by fine, the cognizee must hold 
 it charged with such lease ; but if it be to commence infuturo^ it is 
 otherwise, because it cannot be avoided before the commencement. 
 Therefore, if tenant in tail makes a voidable lease for years or life, 
 and dies, and the issue, before entry on the lessee, levies a fine to a 
 stranger, the cognizee shall not avoid the lease, because such lease 
 being only voidable by entry, when the issue before entry conveys 
 over the land by fine, the power of entry, which was the only means 
 of avoiding such lease, is by the fine destroyed and gone ; for a right 
 of entry cannot be transferred to a stranger any more than a right of 
 action : so, if the tenant in tail himself after such lease, had levied a 
 fine to a stranger, or even to the reversioner, and died, yet ihey could 
 
 {a) Co. Lit. c. 12. 66. 
 
 D
 
 34 Of Leases by Tenants in Tail. [Chap. III. 
 
 not avoid the lease ever after, because, if they could, it must be by 
 reason of the right of entry transferred by the fine, which would have 
 come to the issue if no such fine had been levied ; and the law abso- 
 lutely condemns all alienations of right only, whether it be right of 
 entry or of action, and consequently in these cases, by such aliena- 
 tion, the lease is become absolute and unavoidable {a). 
 
 If tenant in tail makes a lease for thirty or forty years, rendering 
 rent, and dies with issue, his wife privement ensienty with a son, and 
 the donor enters, and as to himself avoids the lease, then the son is 
 born, and the lessee re-enters; the son at full age may either affirm 
 or avoid such lease as he thinks fit ; for the lease was not absolutely 
 determined or avoided, more than the estate-tail itself, out of which 
 it was derived, but only secundum quidy and subject to be set up again 
 upon the birth of the issue, which revived the estate-tail. But if 
 such lease were made by the tenant in tail before marriage rendering 
 rent, and then he married and died, leaving his wife privement ensienty 
 and the donor enters, and as to himself avoids the lease, yet if the 
 wife be afterwards endowed, the lease is revived as against her, be- 
 cause her estate is, quodam modoy a continuance of the estate-tail of the 
 husband, and therefore, revives all charges made by him before the 
 marriage : but if the wife be after delivered of a son, and dies, 
 now the issue may again avoid that lease or affirm it, as he thinks fit : 
 or if such lease were made after marriage, and the wife being en- 
 dowed thereof, avoids that lease, yet after her death the issue in tail 
 may revive it ; for in all these cases the avoidance of such leases being 
 only by those who had a temporary estate or interest in the land, it 
 cannot bind those who succeeded to the inheritance thereof, but that 
 they may, if they think fit, re-establish and set up such lease again, 
 which, as to them, was at first only voidable, and not absolutely void. 
 And herein a lease at common law by the tenant in tail differs from 
 rent granted by such tenant which is void by the death of the grantor ; 
 whereas a lease is only voidable by the issue in tail, whose acceptance 
 of rent amounts to a confirmation (^). 
 
 Power to lease by the enabling statute. — Thus, by the common-law, 
 tenant in tail could make no leases which should bind his issue in tail, 
 or the reversioner; to remedy which, the statute ^32 Henry 8. c. 28. 
 commonly called The Enabling Statute (^c)y was passed. 
 
 By this statute, any person whatsoever, of full age, that hath any 
 estate of inheritance in fee tail in his own right of any lands, tene- 
 ments, or hereditaments, may at this day, without fine or recovery, 
 make leases of such lands for lives or years, and such leases shall be 
 good; so as these conditions following be observed. 
 
 ffl) Bac. Abr. Tit. '« Leases," (D.) 3 Salk. 336. 4 Mod. i, 
 
 (i) Cruise's Dig. tit. II. c. 2. s. 8. Bro. Abr. tit. " Grant" 14J. % Ld. Raym. 779. 
 
 (0 3* H. 8. c, aS.
 
 Sect. II.] Of Leases hy lenanis in Tail. 25 
 
 i(d i. Such lease must be by indenture; and not by deed-poll or by 
 parol. 
 
 2. It must be made to begin from the day of the making thereof, or 
 from the making thereof: therefore a lease made to begin from Afi- 
 chaelmasy which shall be three years after, for twenty-one years ; or a 
 lease made to begin after the death of the tenant in tail, for twenty-one 
 years, is not good. But a lease made for twenty years, to begin at 
 Michaelmas next, it seems is a good lease ; for • 
 
 3. If there be an old lease in being, of the land, the same must be 
 expired, surrendered, or ended within a year of the time of the /jj^ 
 making of the new lease ; and this surrender must be absolute and 
 
 not conditional; also, it must be real, and not illusory, or in show 
 
 only. Therefore, Jud ^ssviiai • . 
 
 4. There must not be a double or concurrent lease In being at one '"H^ 
 time; as if a lease for years be made according to the statute, he in 
 reversion cannot afterwards expulse the lessee, and make a lease for 
 
 life or lives, or another lease for years according to the statute> npr 
 e converso. 
 
 But if a lease for years be made to one, and afterwards a lease for 
 life is made to another, and a letter of attorney is made to give livery 
 of seisin upon the lease for life, and before the livery made the first 
 lease is surrendered, in this case, the second lease is good. 
 
 5. These leases must not exceed three lives, or twenty-one years 
 from the time of making them; for the words of the statute are to 
 make a lease for three lives, or twenty-one years, so that either the 
 one or the other may be made, but not both. Therefore, if tenant in 
 tail make a lease for twenty-two, or for forty years, or for four lives, 
 this lease is void ; and that not only for the overplus of time more than 
 three lives, or twenty-one years, but for that time of three lives or 
 twenty-one years also ; and it hath been resolved, that if tenant in tail 
 make a lease for ninety-nine years, determinable upon three lives, that 
 tlus is not a good lease. But if a lease be made by a tenant in tail for 
 a lesser time, as for two lives, or for twenty years; this is a good 
 lease. If a lease be made for four lives, and it happens that one of 
 
 , the lives die before the tenant in tail die ; yet this accident will not 
 make the lease good, but it remains voidable notwithstanding. 
 
 6. These leases must be of lands, tenements, or hereditaments, 
 manurable or corporeal, which are necessary to be let, and Xvhereout 
 a rent by law may be issuing and reserved. Therefore, if a tenant in 
 tail make a lease of such a thing as doth lie in grant, as an adyowson, 
 fair, market, franchise, or the like, out of v/hich a rent cannot he 
 reserved, especially if it be a lease for life ; this lease is void, and that 
 albeit the thing have been anciently and accustomably let. A grant 
 of rent-charge, therefore, out of such lands is void ; and if a tenant 
 in tail make a lease for three lives of a portion of tithes rendering rent; 
 
 D2
 
 26 Of Leases by Tenants in Tail. [Chap. III. 
 
 this lease is unquestionably void; so also it seems it is, if it be a lease 
 of twenty-one years. — But now by the statute 5 G. 3. c, 17. a lease of 
 tithes, or other incorporeal hereditaments alone, may be granted by 
 any bishop, or any such ecclesiastical or eleemosynary corporation, 
 and the successor shall be entitled to recover the rent by an action of 
 debt, which (in case of a freehold lease) he could not have brought at 
 common law. 
 
 7. They must be of such lands or tenements, which have been 
 most commonly let to farm, or occupied by the farmers thereof, by 
 the space of twenty years next before the lease made; so as if it had 
 been let for eleven years, at one or several times within twenty years 
 before the new lease made, it is sufficient. Albeit the letting have 
 been by copy of court-roll only, yet such a letting in fee, for life, or 
 years, is a sufficient letting, and so also is a letting at will by the 
 common law. But these lettings to farm must be made by such as are 
 seised of an estate of inheritance : for if it have been only by guardian 
 in chivalry, [now abolished] tenant by the courtesy, in dower, or 
 the like; this will not serve to be a letting within the intent of the 
 statute. 
 
 8. There must be reserved upon such leases yearly, during the 
 same leases, due and payable to the lessor and his heirs to whom the 
 reversion shall appertain, so much yearly farm or rent, or more, as 
 hath been most accustomably yielded or paid for the lands, ^c. with- 
 in twenty years next before such lease made. Therefore, if the rent 
 be reserved but for part of the time of the new lease, this lease is 
 void. So, if the tenant in tail have twenty acres of land that have 
 been accustomably let, and he make a lease of these twenty acres, and 
 of one acre more which hath not been accustomably let, reserving the 
 usual yearly rent, and so much more as to exceed the value of the 
 other acre; this is not a good lease by the statute. So, if the tenant 
 in tail of two farms, the one at twenty pounds rent, the other at ten 
 pounds rent, make a lease of both these farms together, at thirty 
 pounds rent, this is not a good lease within the statute. But if besides 
 the annual rent, there have been formerly reserved things not annual, 
 as heriots, fines or other profits, upon the death of the farmers, or 
 profit out of another's soil, as pasturage for a colt, k^c. if upon the 
 new lease the yearly rent be reserved, albeit these collateral reserva- 
 tions be omitted, yet these leases are good. So also, if there be more 
 rent reserved upon the new lease than the rent that hath been anciently 
 paid, the lease is good notwithstanding. So, {a) if tenant in tail of 
 land let a part of it that hath been accustomably let, and reserve the 
 rent pro rata, or more, this is good, for that is in substance the ac- 
 customable rent. Also, if two co-parccncrs be tenants in tail of twenty 
 acres, every one of equal value, and accustomably letten, and they 
 
 (<f) Co. I, it. 44. 6.
 
 V t 
 
 ■t : 
 
 Sect. II.] Of Leases hy Tena7its in Tail, S7 
 
 make partition so as each have ten acres, they may make leases of 
 their several parts of each of them, reserving the half of the accus- 
 tomable rent. If the accustomable rent had been payable at four 
 days or feasts of the year, yet if it be reserved yearly, payable at one 
 feast, it is sufficient, for the uords of the statute are, to be reserved 
 yearly. On a question. Whether the reservation of the ancient 
 " copyhold," rent or more, in a lease made by tenant in tail, would 
 answer the description of the ancient " accustomed" rent, within the 
 statute, it was held that it would [a). 
 
 9. Such leases must not be made without impeachment of waste. 
 Therefore, if a lease be made for life, the remainder for life, ^c. this 
 is not warranted by the statute, because it is dispunishable of waste. 
 But, if a lease be made to one during three lives, this is good; for the 
 occupant, if any happen, shall be punished for waste. Prebend makes 
 a lease for years, reserving the running of a colt, rendering rent, a 
 new lease, rendering the same rent, without reserving the running of 
 a colt, adjudged good ; because quoad this, it is neither reservation, 
 nor exception. But if a lease be of a manor, except the woods, 
 rendering rent, and after the expiration of it, there is a new lease 
 rendering the same rent without such exception, the second lease is 
 bad {b). 
 
 By this statute, then, a tenant in tail is enabled to grant such 
 leases as shall bind his issue in tail •, though not those in remainder or 
 reversion. 
 
 If tenant in tail male demise for a term of ninety-nine years, and 
 his lessee assign over to another, but before such assignment tenant in 
 tail male dies without issue male, no action of covenant upon the 
 lease can be maintained against the representatives of the grantor by 
 such assignee, the lease being void at the time of the assignment, and 
 no interest passing under it (c). 
 
 Tenant in tail male, had issue two sons by divers venters, and died; 
 the eldest son entered and made a lease for twenty-one years, reserv- 
 ing rent generally to him and his heirs and assigns, and died without 
 issue, leaving two sisters his heirs at lav/; and if by this reservation, 
 the rent belonged to the second brother, to whom . the reversion de- 
 scended, as heir male/of the body of the father, was the question ; for 
 if not, then the lease could not bind him within 32 if. 8. c. 28 ; and 
 it was adjudged to be a good lease, and that the rent should go along 
 with the reversion ; for the words of the statute are, that the rent 
 shall be reserved t') the lessor his heirs, or " to those to whom the 
 lands would go if no such lease had been made " and here the intent, 
 was, that the rent should go along with the reversion ; and so it may 
 
 {a) Moore, 759. (i) Moore, 6. (t) i Bos. & Pul N. R. Jj8.
 
 38 Of Leases by TenanBTn Tail [Chap. III. 
 
 here, for rent naturally follows the reversion, and the second brother 
 is heir to the intail and reversion, though not to the lessor (a). 
 
 Tenant in tail makes a lease for twenty years, rendering the usual 
 rent, hahendum from Michaelmas next ensuing (V)'. this seems a good 
 lease, though it did not begin from the making of the lease, accord- 
 ing to the proviso 32 i/. 8. c. 28. for the intent of the statute was 
 only that the lease should not exceed the number of twenty-one years 
 from the making, which this lease did not, and in the margent, a- 
 case is of Thompson and Traffordy iPoph. 8.] 35 Eliz. in JB. R. cited to 
 be adjudged, per totam curiam^ that it was a good lease, and well 
 warranted by the statute : though my Lord Coke lays it down for one 
 of his rules, that leases upon that statute are not good if they do not 
 commence from the day of the making, which perhaps may be recon- 
 ciled upon the same diversity, where they are under twenty-one years 
 and where not so, that from the time of the sealing and executing the 
 lease, till the expiration thereof, there does not intervene more thari 
 twenty-one years. For, if the commencement of the lease be at such 
 a distance, that between the time of the sealing and executing there- 
 of, and the expiration, there do not intervene above twenty-one years, 
 then such lease seems to be without any aid from this statute, though 
 the time for continuance thereof in the possession of the lessee be 
 under twenty-one years; for otherwise the tenant in tail might so 
 procrastinate the commencement of the lease, as to have always the 
 greatest part of the twenty-one years running out in the time of his 
 issue, which the statute never intended to countenance. 
 
 So, where one made a lease for ten years, and after made another 
 lease for eleven years, both these leases are good, because they do not 
 in all exceed twenty-one years, and so the inheritance is not charged 
 with more than a lease for twenty-one years, which the statute 
 allows (r). 
 
 Copyholds are not within the statute. 
 
 Section HI. Of Leases by Tenant in Tail after possibility 
 of Issue ea:tinct. 
 
 This estate is where one is tenant in special tail, and the person from 
 vliose body the issue was to spring, dies without issue, or having 
 issue that issue becomes extinct (r/). The law looks upon this estate 
 as equivalent to an estate for life only, and in truth the tenant is only 
 tenant for life, and is permitted to exchange his estate with a tenant 
 for life ; an exchange that can only be made of estates that are equal 
 in their nature. 
 
 ; r- 
 iu) Bacon Abr. tit. " Leases," (D.) X. (l>) Ibid. (<r) Ibid. (/) t Bl. Com. ii4^ 
 
 6
 
 Sect. IV.] Of Leases by Tenant for Life. 39 
 
 His power to demise, therefore, will come more properly within 
 the consideration of the next subject. 
 
 Section IV.] Of Leases by Tenant for Life ; absolute or 
 
 contingent. 
 
 Tenant for life can make no leases to continue longer than his own 
 life; for his leases are absolutely void at his death {a). 
 
 Thus {b) where tenant for life leased premises for twenty-one years, 
 and before the expiration of that term died ; the trustees of the re- 
 mainder-man, then an infant, continued to receive the rent reserved, 
 and he, on coming of age, sold the premises by auction ; in the con- 
 ditions of sale the premises were declared to be subject to the lease, 
 and in the conveyance to the purchaser, the lease was referred to as 
 in the possession of the lessee ; and in the covenant against incum- 
 brances, that lease was excepted ; the purchaser mortgaged, and in 
 the mortgage deeds the like notice was taken of the lease, and the 
 mortgagee for some time received the rent reserved : held that the 
 lease expired with the interest of the tenant for life, and that the 
 notice since taken of it did not operate as a new lease. 
 
 Therefore a lease so rendered void against him in remainder, cannot 
 be set up in a court of law by such remainder-man's acceptance of 
 rent, and suffering the tenant to make improvements after his interest 
 vests in possession [c). — But when the remainder-man lies by, and 
 suffers the lessee or assignee to rebuild, and does not by his answer 
 deny that he had notice of it, all these circumstances taken together, 
 will bind him in a court of equity from controverting the lease after- 
 wards. 
 
 Also, a lease executed by a tenant for life, in which the reversioner, 
 who was then under age, is named, but which was not executed by 
 him, is void on the death of the tenant for life, and an execution by 
 the reversioner afterwards is no confirmation of it, so as to bind the 
 lessee, for it is not his covenant (d). 
 
 But if tenant for life makes a lease for twenty years generally, and 
 afterwards he in reversion confirms that lease, and then the tenant for 
 life dies ; though this at first would have determined by the death of 
 the lessor, yet the confirmation hath made it good for the whole term {e). 
 But if the lease had been for twenty years, if the lessor tenant for life 
 should so long live, there, if the reversioner had confirmed this lease, 
 yet it would not prevent its voidance upon the death of the tenant 
 for life. 
 
 (a) Bac. Abr. tit, « Leases," (I.) (*) i Bos. & Pull. 531. (/) Doug, 50. 
 
 Cowp. 48a. BulL N. P. 96. 7 T. R. 83. 478. 3 Atk. 393. [d) i Tr. 86. 
 
 (<f) Bac. Abr. tit. " Leases," (L. a.)
 
 40 Of Leases hy Tenant for Life, [Chap. III. 
 
 The diversity between which cases is this {a) : that in the first case, 
 the lease being made generally for twenty years, nothing appears to 
 the contrary, but that it was a good lease for that time absolutely ; for 
 the death of the lessor, which would determine it sooner, does not 
 appear in the lease itself; then when the reversioner, who alone could 
 take advantage of that implied limitation, thinks fit to waive it, and 
 confirms the lease as it was made at first for twenty years absolutely, 
 this makes it his own lease^ for so much of the time as would have 
 fallen into his reversion by the death of the tenant for life being made 
 the express limitation and circumscription of the twenty years in the 
 lease itself, no confirmation of that lease so limited can enlarge it to 
 extend beyond the life of the lessor, that being the express determi- 
 nation affixed to it. — For although we find one case, where it is held, 
 that if a man makes a lease for twenty-one years, if the lessee so long 
 live, and afterwards the lessor and lessee join in a grant by deed of 
 the term to another, after which the first lessee dies within the twenty- 
 one years, yet the grantee shall enjoy it during the residue of the term 
 absolutely. To reconcile this case with the other, it must be intended, 
 that in the assignment no notice is taken of the express limitation af- 
 fixed to the lease, but that they joined in an assignment of the lease, 
 for the residue of the twenty-one years, and then it may be well con- 
 strued to amount to a cofifirmation by the lessor for that time, as the lessor 
 may confirm the land to the lessee for any longer time, and thereby en- 
 large his estate or interest. 
 
 B. tenant for the life of C. and he in remainder or reversion in fee 
 join in a lease for years by indenture {b) ; this during the life of C, is 
 the lease of B. who then only had the present interest in the lands, 
 and the confirmation of him in the remainder or reversion ; but after 
 the death of C. then this becomes the lease of him in the reversion or 
 remainder, and the confirmation of B. ; for the lessors having several 
 estates in them in several degrees, the lease shall be construed to move 
 out of each one's respective estate or interest, as they become capable 
 of supporting it, which is the most natural and useful construction of 
 the lease, especially as there can be no estoppel in this case, by reason 
 of the several interests which passed from eaciu Therefore during 
 the life of tenant for life, if the lessee, being evicted, should declare 
 of a lease for both ; this would be against him, as was adjudged, be- 
 cause for that time it was only the lease of the tenant for life. 
 
 /I. lessee for life makes a lease to B. and C. on condition that if 
 they die leaving A. then the land shall revert to A. without deter- 
 mining ;uiy estate certain in the grant ; all the estate passes under 
 the conditiij.M, for in precipe A. was not received on default of B, 
 and C. (r). 
 
 (</) Bac. All), tit. " Iajsi-:.," (L. 2.) (/•; Ilml. (.) Co. Lit. t. 6. t. j6. ii. il.
 
 Sect. VI.] Of Leases hy Tenant bij Curtesi/, S;c. 41 
 
 If tenant for life and he in remainder in tail join in a lease to yl. 
 for life, remainder to B. for life, and the issue in tail accepts the rent 
 of A. and levies a fine, the lease in remainder is good, notwithstanding 
 the feoffment (a). 
 
 Where lessee for life makes a lease for years, excepting the wood, 
 underwood, and trees growing upon the land, it is a good exception, 
 although he has no interest in them but as lessee, because he remaina 
 always tenant, and is chargeable in waste ; wherefore to prevent it, 
 he may make the exception. — But if lessee for years assign over hit; 
 term, with such an exception, it is a void exception (J>). 
 
 Section V. Of Leases bij Tenants pour autre Vie. 
 
 Where a person holds for the term of another's life, he is called 
 tenant /)owr autre vie ; and leases made by him of course determine on 
 the death of the cestui que vie, or person during whose life he holds, 
 but not on his own death ; for by the statute of Frauds every estate 
 pour autre vie is made devisable, and if not devised, it shall be assets 
 in the hands of the heir, if limited to the heir ; if not limited tp the 
 heir, it shall go to the executor or administrator of the grantee, and 
 be assets in their hands. 
 
 Section VI. Of Jjeases hy Tenant hy the Curtesy of 
 England ; in Dower ; or Jointure. 
 
 Tenant by the curtesy is where a man marries a woman seised of 
 an estate of inheritance, and has by her issue born alive, which was 
 capable of inheriting her estate (c). Tenancy in dower, is where the 
 husband of a woman dies, with or without issue, in which case, the 
 wife shall have the third part of all the lands and tenements whereof 
 he was seised for an estate of inheritance at any time during the co- 
 verture, to hold to herself during the term of her natural life. Tenant 
 in jointure is by the 27th H. 8. c. 10. commonly called the statute of 
 Uses,' by which dower may be barred by a jointure, or by conveying 
 a joint estate to husband and wife ; but in common acceptation, it 
 means a sole estate limited to the wife only (<:/). 
 
 As to these respective estates, it will be sufficient to observe, that 
 if either of the tenants make a lease for years, reserving rent, and 
 die, this lease is absolutely determined, so that no acceptance of rent 
 by the heir or those in reversion can make it good ; for though their 
 estate is, quodam tnodo, a continuance of the estate of the husband or 
 wife, yet it is a continuance only for life, and they have no power to 
 
 (a) Cro. Eliz. %s%. (Ji) Cro. Jac, 296. {c) 2 Bl. Com. 126. (</) a Bl. Com. 36.
 
 42 Of Leases under Powers, QChap. II L 
 
 contract for, or intermeddle with, the inheritance, and consequently 
 their leases or charges fall off with the estate whereout they were de- 
 rived, and the lessee is become tenant by sufferance by his continuance 
 of possession after {a). 
 
 Section VII. Of Leases under Powers, 
 
 The limitation and modifying of estates by virtue of powers, came 
 from equity into the common law with the statute of Uses {b) : as. 
 therefore powers came into the courts of law with the statute of Uses, 
 60 the construction of them, by the express direction of the statute, 
 must be the same as in courts of equity {c) ; for whatever is a good 
 power or execution in equity, the statute makes good at law {d). As 
 powers are derived from equity, and ought even at law to be construed) 
 equitably, so in the construction of powers originally in their nature 
 legal, courts of equity must follow the law, be the consideration ever 
 so meritorious. 
 
 The circumstances attending the execution of such leases may be 
 considered, i. With respect to the lessor; 2. to the lessee ; 3. to the 
 subject on which the power is to operate ; 4. to the quality and quan- 
 tity of interest to be granted ; 5 . to the rent ; 6. to the form of the 
 lease [e). 
 
 I, With respect to the lessor. 
 
 He must, as we have observed, pursue the power strictly. If te- 
 nant for life, therefore, has a special power of granting leases for a 
 longer term than his own life, upon his death the lease is void, unless 
 he has strictly pursued the power [f). So, tenant for life, with power 
 of leasing under certain conditions, must demise in strict conformity 
 with those conditions {g). Indeed in respect to the execution of 
 powers {h)y courts of justice have always looked with a jealous eye 
 to see that the conditions in favour of the next taker be pursued, not 
 literally only, but substantially. 
 . So, tenant for life, with power to make leases for three lives, or 
 
 '^**^''.'» twenty-one years, cannot make such leases by letter of attorney, by 
 *^^ If • virtue of his power (z) *, because such leases not being derived out of 
 the interest of the tenant for life, but by an authority derived from 
 the tenant in fee, and to charge the estate of third persons, the 
 trust for that purpose is personal, and cannot be delegated to another. 
 
 It has also been determined, that where a power of leasing was 
 given to the father, tenant for life, and after his decease, to the son^ 
 tenant for life, and the son obtained a grant from the father, of his 
 
 (fl) Bac. Abr. tit. " Leases," (1) i Cro. Car. 398. {h) 1 Burr. iio. ' 
 
 {c) Doui. 293. (</) a Burr. 1146. i Bl. R. 283. («■) Powel on Pow. 390. J 
 
 (/) I 1". R. 709. 5 T. R. 567. (^) 6 Bro. Cas. in Farl. 175. 
 
 (J}) I Burr. 111. («■) % Co. 76. a.
 
 Sect. VII.] Of Leases under Fawers, 43 
 
 life estate, (without noticing the power) subject to a certain rent, 
 with a power of re-entry for non-payment ; the son, during the life- 
 time of his father, could not lease under the power {a), 
 
 A power to make leases generally, extends only to leases in posses- 
 sion, and not to leases in reversion, or in futtiro {b). 
 
 The grant of a lease need not be in actual possession, but a con- 
 structive possession, by the receipt of the rents and profits, is a suf- 
 ficient compliance with the power. If actual possession were neces- 
 sary, a leasing power could never be executed where the land is in the 
 hands of a tenant (c). 
 
 Therefore where a tenant for life, with power to grant leases in 
 possession for twenty-one years at the best rent, conveyed his life- 
 estate to trustees to pay an annuity for his life, and the surplus to 
 himself; the power was held to be not thereby extinguished, but he 
 might still grant a lease agreeable to the terms thereof (d), 
 
 2. With respect to the lessee. 
 
 The lessee, in a lease under a power, must, it should seem, be a 
 person in being at the time when it is made ; for generally such leases 
 cannot be made in reversion or infuturo : and it has been held, that 
 if a power be to make leases to one, two, or three persons, the donee 
 of the power cannot make a lease for the life of the first son of y. 
 S. because the person to take under the power ought to be in esse (<?), 
 
 If a man covenant in consideration of natural affection, with a 
 power to make leases, a lease to a stranger is void (f). 
 
 3. With respect to the subject on which the power is to operate. 
 
 A tenant for life, having power to grant building leases for sixty- 
 one years, reserving the best improvement ground rent, granted a lease 
 for that term, which was not expressed to be a building lease, but 
 which contained a covenant by the lessee to keep in repair the pre- 
 mises demised (old houses) or such other " house as should be built 
 during the term ;" held that this was not a building lease within the 
 power, and therefore void (g). 
 
 If a leasing power be restrained to be exercised only over heredi- 
 taments usually lettetty lands twice letten are included within that 
 description {h). 
 
 But lands that have been but once letten, are not within such a 
 power (z). 
 
 So, if lands had been leased by virtue of a contract, from year to 
 year for three years, this cannot be said to be usually letten, because 
 this is but one lease, though renewable every year. 
 
 Any kind of demise is sufficient to support such power, there being 
 no necessity that it should have been demised by indenture ; a demise 
 
 (a) 13 Easv R- 118. {b) Cro. Jac. 31?. i Com. R. 39. s. p. (c) Doug. 293. 
 
 (.^Ibid. (<r)T. Ray. 163. (/) Cro. Jac. 180. (^) Willes, 169. 
 
 {b) % Roll. Abi. a6l. (0 Ibid. 13.
 
 44 Of Leases imder Poxvers. [Chap. III. 
 
 at will or by copy, is sufficient to make land to be accounted usually 
 demiseable (a). 
 
 But lands not demised for the space of twenty years before the ex- 
 ecution of a power to demise, at the rent then usually reserved and 
 paid, cannot be leased under such power [b). 
 
 Thus [c] where there was a tenant for life, with power to make 
 leases of all or any of the lands in an indenture of settlement, parti- 
 cularly mentioned, which at any time theretofore had been usually 
 letten or demised, for and during the term of twenty -one years or 
 under, in possession and not in reversion, reserving the rent thereupon, 
 then yielded or paid, or more. Tenant for life made a^ase of part 
 of the premises mentioned in the settlement, which had been let at 
 lool.perann. for twenty-one years, but which term of twenty-one 
 years had expired, and the premises had not been let for the space of 
 twenty years before the demise, under the power which was the sub- 
 ject of dispute. It was held, that what was not farmed at the time 
 of the proviso made, nor twenty years before, could not be said to be 
 at any time before commonly farmed ; for those twenty years were a 
 time before in which it was not farmed. Besides, the proviso was, that 
 leases might be made for twenty-one years of any lands in the deed, 
 reserving the rents thereupon reserved at the time of the deed made, 
 which necessarily implied, that the land demiseable by that proviso 
 must be land which then was under rent *, for if no rent then was, 
 the rent then thereupon reserved could not be reserved. But the 
 premises in question had then no rent upon them, for they were not 
 let of twenty years before, nor then, and therefore were not demise- 
 able by that proviso. The words " or more," could not at all help 
 the lessee ; for the words " more" or " less," were words of relation; 
 the one of addition to what was before, the other of diminution : for 
 " more" or " less," must relate to something positive before, and 
 could never be a relation to nothing, 
 
 A covenant to stand seised, as it is a lease if made by the owner, 
 so also is it an evidence of the usual manner of demising {cl). 
 
 It seems now to be . settled, that the question, whether, (under a 
 power to lease lands, and other hereditaments, provided that such rent 
 or more be reserved upon every lease as hath been reserved, or paid 
 for it within a given time, previous to the creation of the power) 
 lands not before in lease may be demised, is a question of construc- 
 tion on the intention of the author of the power, to be collected 
 from the instrument creating the power, or the circumstances of the 
 estate [e). 
 
 Thus, where a power was to lease a manor except the demesne 
 
 (a) Powell on Puw. 392. 3 Cro. J;ic. 79. (i) Powell on Pow. 395. 
 
 (.) Vaugl). 31. Sir T. Jones, 27. K. C. (J) 3 liuir. 1446. 
 
 («) Powrll on Pow. 40J. a Roll. Abr. 162, i J. 3 Kcb. 597.
 
 Sect* VI I.J Of Leases under Powers, 45 
 
 lands, althougli copyholds, being within that description, could not be 
 demised under such power, yet the rents and services of the manor 
 might (a) ; for it appeared to be the intent of the settlement, that 
 part of the manor should be demiseable ; and notwithstanding a qua- 
 lification annexed to the power which said that the ancient rent 
 should be reserved, and no reservation of rent could be upon a lease 
 of rents and services, out of which no rent issues, yet the rents and 
 services might be demised within the power ; for it appeared, that 
 part of the manor was intended to be comprised within the power, 
 but that the demesne lands were not to be comprised ; then the 
 rents and services must be, for the whole of the manor consists in 
 demesnes, rents, and services ; and if a man hath a power reserved 
 to him of making leases of two things, and a qualification is annexed 
 to the power, which cannot extend to one of these things, he may 
 make a lease of that thing without any regard to the qualification. 
 
 Accordingly, where there is a power to make a lease of a manor, 
 and every part thereof, so that such rent be reserved upon every lease 
 as was paid for two years before, and it happens that some part of 
 the land was not leased at any rent within two years before ; a man 
 may make a lease of such land, reserving what rent he pleases, for 
 the Intent appears to be, that he might make leases of the whole 
 manor [b). 
 
 So, also, where a man had power to make leases of a rectory, 
 tithes, and other lands, reserving the ancient rent, it was held, that 
 he might make leases of tithes, although no rent can issue out of 
 tithes ; but he might demise them without any rent if it pleased him, 
 for it appeared, that tithes were within the power (c). 
 
 So, under a power to lease all manors, messuages, lands, &c. " so 
 as there be reserved as much rent as is now paid for the same," such 
 parts of the estate enumerated in the power as have never been de- 
 mised, may be let (d). 
 
 But where a devise was to trustees in strict settlement with power 
 to lease " all or any part of the lands so limited, so as there be re- 
 served the ancient and accustomed yearly rents ;" the power was held 
 not to extend to such parts of the lands as had never been before let (e). 
 
 And under a power in a family-settlement to make leases for all or 
 any part of the premises, reserving the ancient rent, lands always oc- 
 cupied with the family seat cannot be demised ; for in such case, the 
 qualification annexed to the power, " that the ancient rent must be 
 reserved," manifestly excluded the mansion-house, and lands about it 
 never let ; the nature of the thing in such case, speaks the intent {/). 
 
 So, under the settlement of an estate, with a power to the tenant 
 
 (-i) 5 Mod. 245, 378. I Com. R. 37, &c. (i) Ibid. {c) Ibid. & i Vent. 294, cases cited, 
 (a) Doug. 56J. (c) 3 M. & S, 99. (/) 8 Mod. 249. Fort. 331.
 
 46 Of Leases under Powers, f Chap. III. 
 
 in possession, to let all or any part of the premises, so as the usual 
 covenants be reserved, a lease of tithes, which had never been let 
 before, was held void. — In all these cases, the intention of the parties 
 is to govern the court in construing the power (a). 
 
 Every power, in the construction of it, is to be taken with such a 
 restriction, that the estate itself, which is subjected to the power, 
 shall not be destroyed by the exercise of it. Therefore, in the case of 
 Winter and Loveday^ Rokeby^ J. held that, had the express words used 
 in that case, " so as it be not of the demesne lands" been left out, 
 yet there would have been a restraint by implication from making 
 leases of customary land held of the manor ; for if the customary land 
 might be demised, the manor would be destroyed, which, it must be 
 presumed, was not the intent of the parties (b). 
 
 One who has a power to grant a concurrent lease within seven years 
 of the expiration of the old, may grant a lease at any time on the sur- 
 render of the old one (c). 
 
 4. With respect to the quality and quantity of interest to be 
 granted. 
 
 Upon a general power to make leases, without saying more, the 
 law adjudges, that the leases ought to be leases in possession j for if 
 upon such power a lease might be made upon a lease, the party 
 might, by making infinite leases, detain those in remainder out of 
 possession for ever, which would be contrary to the intent of the par- 
 ties and against reason [d). 
 
 So, a general power to make leases for one and twenty years, does 
 not enable the party to make such a lease in reversion, by which a 
 widow would be deprived of the benefit of her jointure, to secure 
 which the land was settled by act of parliament : for, besides that 
 jointures are favoured in law, the statute intended not to give him 
 that liberty ; and, it being a liberty and power, it must be strictly 
 pursued (e). 
 
 If a man has power to make leases in possession or reversion, if 
 he makes a lease in possession once, he shall never after make a lease 
 in reversion ; for he has an election to do the one or the other, but 
 not both (/). 
 
 Devisee for life, with power to make leases for twenty-one years, 
 whereupon the old accustomed rent shall be reserved, makes a lease 
 for twenty-one years under the old rent, ^c. and a year before the 
 expiration of that lease, he makes a lease to another for twenty-one 
 years to begin presently ; this lease seems to be good within his power 
 as a concurrent lease, because it is no charge upon the reversion, nor 
 
 (a) 5 T. R. 665. {!>) Powell on Pow. 407. 5 Mod. 245, 378, &c. 
 
 (0 Com. Dig. tit. Estates, (G. 13.) (V) t Brownl. 148. i Com. R, 2% Sec. ante. 
 (/) Cro. Elii, 5. (/) Ld. Raym. J67. 
 
 0'
 
 Sect. VII.] Of Leases under Powers, 47 
 
 is there any more than twenty-one years in toto against the reversioner: 
 but this power would not warrant the making of leases in reversion, 
 for then he might charge the inheritance ad itifinitum (a). 
 
 But notwithstanding, where one having power to make leases for 
 twenty-one years in possession, made a lease to A. for twenty-one 
 years in trust for the payment of debts, but the lease was made to 
 commence from a time to come, and so not pursuant to the power, yet 
 being made for the payment of debts, it was supported in equity {b). 
 
 Under a power to lease in possession for one, two, or three lives, 
 or for thirty years, or any other number of years determinable on 
 one, two, or three lives ; or in reversion for one, two, or three lives, 
 or for thirty years, or any other number of years determinable on 
 one, two, or three lives, a man cannot make an absolute lease in 
 possession for thirty years ; but an absolute lease in reversion, for 
 thirty years, he may [c). 
 
 Where there is a power to grant leases in possession, but not by 
 way of reversion or future interest, a lease per verba de prasentiy is 
 not contrary to the power, although the estate, at the time of grant- 
 ing the lease, was held by tenants at will, or from year to year j if at 
 the time, they received directions from the grantor of the lease to pay 
 their rent to the lessee (</). 
 
 So, {e) one under a power in a marriage settlement to lease for 
 twenty-one years in possession, but not in reversion, grants a lease 
 to his only daughter for twenty-one years, " to commence from the 
 day of the date," adjudged a good lease. — It was held that the word 
 ** from" may mean either inclusive or exclusive, according to the con- 
 text and subject-matter; and the court will construe it so as to 
 effectuate the deeds of parties, and not to destroy them. But the 
 authority of this determination has been much questioned. 
 
 Under a power in a will to lease in possession, and not in rever- 
 sion, a lease for years, executed the 29th of March to the then tenant 
 in possession, habendum as to the arable from the 1 3th of February 
 preceding, and as to the pasture from the 5th of April then next, &c. 
 under a yearly rent, payable quarterly, on the loth of July, loth 
 of October, loth of January, and loth of April, is void for the 
 whole, though such lease were according to the custom of the coun- 
 try, and the same had been before granted by the person creating the 
 power (/). 
 
 Under a power to demise for twenty-one years in possession, and 
 not in reversion, a lease dated in fact on the 17th of February, 1802, 
 habendum from the 25 th of March next ensuing the date thereof is 
 good, if not executed and delivered till after the 25th of March, for 
 
 (a) Powell on Pow. 418. Bac. Abr. tit. " Leases," 417. Leon. 147, 8. Hard. 413. 
 
 [b) Bac. Abr. Ibid. 418. Cha. Ca. lO. (0 Ld. Raym. 267. {d) Doug. 565. 
 {<:) Cowp. 714. a Wils. 165. (/) % East's R, 376.
 
 48 Of Leases under Powers, [Chap. III. 
 
 k then takes effect as a lease in possession with reference back to the 
 date actually expressed [a). 
 
 One had power in effect to make leases for the lives of A. B. and 
 C. and he makes a lease to them for their three lives, and the life of 
 the longer liver of them : and this was held to be sufficient within 
 the power, because, for three lives generally, and for three lives, and 
 the longer liver of them, is all one, since without such words it 
 would have gone to the survivor. — So, a lease to one for three lives, 
 or to three for their lives, is all one {b). 
 
 Where a man makes a settlement of the reversion of lands, de- 
 mised for life or years, to the use of one for life, with power to make 
 leases generally, he may make a lease during the continuance of a 
 former lease, to commence after the former ; as otherwise his power 
 would be ineffectual (f). 
 
 So, a forttoriy if a power expressly enable one to make leases in 
 reversion, such a lease will of course be good by virtue thereof (d). 
 
 Under a power to make, leases " for ninety-nine years, or three 
 lives in possession, or for two lives in possession, and one in rever- 
 sion, or for one life in possession, and two in reversion," the party, 
 during the continuance of the first lease, made a lease for life to T. ; 
 and the question was. Whether the latter lease, being m.ade whilst 
 the lives in the former lease were in being, was authorized by the 
 power? By two of the justices, out of three, it was held, that had 
 the words, <* in possession," and the words of the power been 
 generally to make leases, the case had been strong in favour of the 
 lease, the settlement being of a reversion ; but the power being ex- 
 pressly to make leases in possession, the lease in reversion was not 
 within it ; and they noticed the particular wording of the power to 
 make leases, namely, " for two lives in possession, and one in rever- 
 sion i" or ** one in possession, and two in reversion ;" so that it ap- 
 peared, that the scope and intent was, never to have an estate above 
 three lives in being at one time {e). 
 
 The nature of a lease in reversion is this. In the most ample 
 sense, that is said to be a lease in reversion, which hath its com- 
 mencement at a future day, and then it is opposed to a lease in pos- 
 session ; for every lease that is not a lease in possession, in this sense 
 is said to be a lease in reversion. Where mention is made of leases 
 in reversion of a power, this shall be intended of leases to commence 
 after the end of a present interest in being ; which is the second 
 notion of a lease in reversion. But as a lease for life cannot be made 
 to commence at a future day, where a power is given to make leases 
 for one or two lives in reversion and to make leases for years, the 
 very same expression (lease in reversion) will have a different signifi- 
 
 (.;) 10 Easf , 427. (J,) Bac. Abr. tit. " Leases." 3 Keb. 44. (0 i Com. R. 315. 
 
 {J) 8 Kcp. ()<j. (f) Po'.vell on Povv. 4*0. % Lev. 167, &c.
 
 Sect. VII.] Of Leases under Porvers. 49 
 
 cation in the same conveyance : being applied to a lease for life, it 
 shall be intended of a concurrent lease, or a lease of the reversion, 
 viz, a lease of that land which is at the same time under a demise j 
 and then it is not to commence after the end of the demise, but hath 
 a present commencement, and is concurrent with the prior demise ; 
 but being applied to a lease for years, it shall be intended of a lease 
 which shall take its effect after the expiration or determination of a 
 ■ lease in being (a). 
 
 The law therefore, which is founded in reason and common sense, 
 considers " possessory" and " reversionary," according to the natural 
 and ordinary import of those terms, (without annexing any artificial 
 idea to them,) as including the simple ideas of time present, and time 
 to come: and consequently, that every subsisting interest, or time 
 not present, is an interest or time to come {b). 
 
 The circumstance of a second lease for years being granted to the 
 same lessee who holds under a former lease, to commence after the 
 expiration of such former lease, does not operate to make the latter a 
 continuation of the former lease, where the terms are granted by dif- 
 ferent deeds ; although the residue of the time to come after the for- 
 mer lease, together with the period for which the latter lease is 
 granted, do not in length of time exceed the limits fixed by the 
 power : for the latter will, notwithstanding, be considered as a re- 
 versionary lease, as much as if it had been granted to a reversionary 
 lessee (c). 
 
 But, if under a power to demise for fourteen years, a lease were 
 made of lands, ^c. habendmuy for seven years, and so from seven 
 years to seven years, the latter, it seems, would be but a continuance 
 of the former term, and an addition to it, and not a remainder or 
 future interest (^). 
 
 If there be a power to make leases in possession expressly, which 
 attaches upon an estate, part of which is in possession, and other 
 part thereof in reversion, at the creation of the power : the donee of 
 the power may immediately make leases in possession of the estate 
 in reversion, as well as of that in possession : for in such case, the 
 word « possession," in the power, refers to the lease, and not to the 
 land {e). 
 
 But it seems, that if a power enable any one to make leases in re- 
 version, as well as in possession, and some part of the land subject 
 to the power be in possession, and other part of it in reversion, he 
 cannot make a lease in possession and another lease in reversion of 
 the same land; but his power to make leases in reversion, will be 
 
 (a) 5 Mod. 245, 378. I Com. R. 39, &c. {b) Powell on Pow. 434. 
 
 (0 5 T. R. 568. (</) I Lev. 45. 3 T. R. 462. 
 
 {c) Powell on Pow. 425. Bac. Abr. tit. " Leases." Cro. Jac. 347. 
 
 E
 
 50 Of Leases under Powers. [Cliap. III. 
 
 confined to such land as was not then in possession: and note the 
 distinction between these two cases (a). 
 
 If a power be created to enable a tenant for life, to make leases for 
 one, two, or three Ii\es, or for any term or number of years, deter- 
 minable upon one, two, or three lives, in possession, ^c. of such 
 part and parts, and so much only of the manors, ^c. of the creator 
 of the power, as are then demised or granted for any such time, ^c. 
 no lands or hereditaments can be demised under such a power, but 
 what are at the time of the execution of the power under lease for 
 one, two, or three concurrent lives, or for any term of years, deter- 
 minable upon one, two, or three concurrent lives ; for the meaning 
 of such restriction is, that the candles shall be all burning at the 
 same time (b). 
 
 A power to make a lease for three lives was held not to be well 
 executed in law, by a lease for ninety-nine years, determinable upon 
 three lives. The reason seems to be, that the estates are different, 
 one being a freehold, and the other a chattel. Such was the con- 
 struction in Whitlock's, case (c), and such seems now to be the settled 
 rule of law, notwhhstanding that the Judges, in 3 Keb. 746, thought 
 the construction too nice, and contrary to the intent of the parties, 
 and though determinations to the contrary are in the books [d). 
 
 An estate was settled on several tenants for life in succession with 
 remainders in tail, with power to every tenant for life, from time to 
 lime by indenture to make leases for any term or number of years, 
 not exceeding twenty-one years or for the life or lives of any one, 
 two, or three persons, so as no greater estate than for three lives be 
 at any one time in being in any part of the premises and so as the 
 ancient yearly rent, l^c. be reserved. Held first, that the power 
 only authorized either a chattel lease not exceeding twenty-one years, 
 or a freehold lease not exceeding three lives, and that a lease by 
 tenant for life for ninety-nine years determinable on lives, as it might 
 exceed twenty-one years, was void at law, and was not even good pro 
 tnnto for the twenty-one years ; but the special verdict finding that 
 the tenant in tail had received the rent reserved by such lease accru- 
 ing after the death of the tenant for life who made it, and who had 
 not given any notice to quit. Held secondly, that the receipt of rent 
 was evidence of a tenancy, the particular description of which it was 
 for the jury to decide upon, and for the defect of the special verdict 
 in this respect, a venire dc mvo was awarded; but the court intimated 
 that under the circumstances of the case, and the disparity of the 
 rent reserved being 4/. 2/., while the rack-rent value was 60/. a year 
 (though one of the lessees had been presented by the homage as 
 tenant after the death of tiie tenant for life, and admitted by the 
 
 (a) PowcH on I'ow. 417. 1 Com. R. 39, ante. {b) Powell on Pow. 541. 7 T. R. 713. 
 (f) iJ Rep. 70. 13. z btr. ')<)%. S. P. (</) 8 Com. 69, 70. Bac. Abr. Tit. " Leases."
 
 Sect. VI I.] Of Lease fi under Foxvcrs. 51 
 
 lord's steward, and the 4/. 2s. reserved was more than tJie ancient 
 rent), a jury would be strongly advised, to decide against a tenancy 
 from year to year (d). 
 
 Powers to lease, habendum for lives or years, may be either abso- 
 lutely for one, two, or three lives ; or for an absolute term of years, 
 as for thirty years -, or qualified, as for any number of years, deter- 
 minable upon one, two, or three lives. 
 
 A man, having a power to grant leases, may do less than such 
 power enables him to do ; or, if he do more, it shall be good to the 
 extent of his power. 
 
 Thus, under a power to lease «' for the term of 21 years," the 
 party may grant a lease for 14 {b). So, where the city of London under 
 a power granted by act of parliament to lease for one and one-and- 
 twenty years, granted a lease for one-and-twenry, it was held no vari- 
 ance upon oyer of the indenture in vv^hich such power was recited (r). 
 
 So, if a man hath power to lease for ten years, and he leaseth for 
 twenty years, the lease for twenty years shall be good for ten years of 
 the twenty in equity ; and so it has been settled several times {d). 
 
 So, where tenant for life had power to let leases for twenty-one 
 years in possession, and he made a lease for twenty-six years, with- 
 out referring to the power ; it was held that the first lease should be 
 presumed to have been surrendered, and the remainder-man should 
 be bound for twenty-one years of the new lease {e). 
 
 If a man pursues all the requisites within his power, though he 
 does it by more deeds than are necessary, it will be good (/"). 
 
 A power may be executed at different times, if not fully executed 
 at first, provided that the party, in the whole execution, does not 
 transgress the limits of the power (^). 
 
 Therefore if a woman, seised of an estate for life, with a power 
 to lease for three lives, or twenty-one years, marries, and then she 
 and her husband join in making the lease, and the husband and wife 
 both die before the lease is expired ; here, though the husband, in 
 right of his wife, and she in her own, are possessed of an estate for 
 life, and therefore can as owners make a lease, and there appears no 
 intention of the parties, (imagining perhaps that they should have 
 outlived the lease,) that this lease should be made by virtue of the 
 power ; yet because the lease, supposing it made by them as owners, 
 cannot have the effect the parties intended, for some it would have 
 (viz. it would be a good lease during the lives of the husband and 
 wife,) yet because it cannot have all, it shall be esteemed to be made 
 by virtue of the power (h). 
 
 If the deed has not a full operation, except where it is in execution 
 
 (u) lO East, 158. {b) 3 M. & S.382. (c) Eac. Abr. tit. " Leases." 
 
 {d) I Chan. Ca. 13. (,) Amb. 740. (/) Com, Dig. Tit. « Poir," (C. 3.) 
 
 (iO I BI. R. 183. {h) 10 Alod. ^6. 
 
 E2
 
 52 Of Leases under Poxvers. [Cliap. III. 
 
 of the power, it will notwithstanding be good : as if tenant for life 
 make a lease, without taking notice of his power, it shall be an exe- 
 cution of his power to make leases -, for otherwise the lease will not 
 have an effectual continuance [a). 
 5. With respect to the rent. 
 
 There are two methods of leasing in common use in this kingdom •, 
 at the best rent, and upon fines, which as the lives or leases drop, are 
 considered among the annual profits. 
 
 The latter mode is not very commofi in England, where the power 
 of leasing usually Introduced in settlements requires the best rent to 
 be reserved, and expressly prohibits the taking of any fine or pre- 
 mium (b). 
 
 Where a lease is made under a power requiring the best rent to be 
 reserved, the question whether the best rent has been reserved must 
 be left to a jury. — Improvements by the tenant will not authorize a 
 lease at an undervalue, and if a fine be taken the lease cannot be 
 supported, though the rent be ever so considerable. The surrender 
 of an existing lease, and the grant of a new one at an increased rent, 
 is not equivalent to taking a fine (f). 
 
 Power to lease so that there be reserved the best rent « without 
 taking any sum or sums of money, or other thing, for or in lieu of a 
 fine i" party granted a lease by indenture dated 15 th October, to com- 
 mence, as to the meadow land, from 13th February last, as to the 
 pasturage, from 25th of March, and as to messuage, from 12th 
 of May, at a certain rent, payable half yearly, on i ith November and 
 25th March; and reserved the first half year payable on the next 
 nth of November, twenty-seven days after the date of the lease ; 
 this was held not to be taking a sum of money for a fine, being in 
 consideration of a previous occupation (d). 
 
 A power to make leases of lands in ^. at the mostrenty and lands in 
 B. at " the usiialy or other the most rentj^ was held to warrant a lease 
 of lands in B. upon a fine, and at a reserved rent, which rent exceed- 
 ed the rent received upon a former lease, in being at the time of the 
 creation of the power, and upon which lease the party creating the 
 power had also taken a fine {e). 
 
 In a power to grant building leases, the term, best rent, must, 
 although not so expressed, be understood to mean the best rent, 
 which can be obtained with reference to the gross sum to be laid out 
 by the tenant in buildings or improvements (/). 
 
 A lease at 43/. a year, granted under a power directing the best 
 rent to be reserved, cannot be impeached merely by shewing that the 
 lessor rejected at the time twp specific offers, one of 50/. and another 
 from 50/. to 60/. from other tenants, though the responsibility of such 
 
 (o) I Vtnt. az8. {h) Sugd.on Powers, 511. (0 '^''d- 5iii5i2i5l3- 
 
 (</) 3 M. i!c S. 382. (0 4 M.& S. 37X. (/) Sugd. on Powers, 513.
 
 Sect. VII.] Of Leases under Ponders. 53 
 
 other tenants could not be disproved ; for in the exercise of such a 
 power, where fairly intended and no fine or other collateral considera- 
 tion is received or injurious partiality plainly .manifested by the lessor, 
 all other requisites of a good tenant are to be regarded, as well as the 
 mere amount of the rent offered, unless something extravagantly 
 wrong in the bargain for rent be shewn. The best rent means the 
 best rack-rent that can reasonably be required by a landlord, taking all 
 the requisites of a good tenant for the permanent benefit of the estate 
 into the account (a). 
 
 The sufficiency of the rent must be governed by the consideration 
 on whom the onus of the repair is thrown (^b). 
 
 A power was given to lease for twenty-one years reserving the best 
 rent, so as the lease should not contain any clause whereby authority 
 should be given to the lessee to commit waste, or whereby he should 
 be exempted from punishment for committing waste, and so as such 
 lease should contain such other conditions, covenants and restrictions, 
 as were generally inserted according to the usage of countries where 
 the premises were situate. It was held that a lease was good, though 
 the lessor thereby took on himself the repairs of the mansion-house 
 (excepting the glass windov/s), and covenanted that if he did not 
 repair it within three months after notice, the tenant might do so, 
 and deduct the expense out of the rent reserved ; and though the 
 lessor covenanted in consideration of a large sum to be laid out by the 
 lessee in the repair of the premises in the first instance, to renew 
 during his the lessor's life, at the request of the lessee, his executors, 
 ^c. on the same terms ; because this covenant only bound the lessor 
 himself, and if the best rent were not reserved upon such renewal, the 
 lease would be void against the remainder-man (c). 
 
 If a power be to make leases, rendering the ancient rent, a lease 
 which does not reserve it will be void : as if the party leases two acres 
 with other land, and reserves the rent of the two acres for the whole (d). 
 By a reservation in a power to lease of the ancient and accustomed 
 rent, is to be understood that which was reserved at the creation of 
 the power, if a lease were then in being •, or that which was last l>efore 
 reserved, if no lease were then in being ; for he who created such a 
 power intended no more than that the lessor and lessee should not be 
 able to put the estate in a worse condition than it was in when the 
 power was created, but should keep it in the same plight and con- 
 dition at least, as it was in when so settled. This was the opinion of 
 Lord Holtf who also observed, that without a certainty, the power 
 could not be executed even by reserving a sum in particular ; and, 
 therefore, he gave it as his opinion, that upon any settlement where 
 a power was reserved to the tenant fj^ life to make leases of the lands 
 
 («) lo East, 273. (A) la East, 305. (c) Ibid. (i) Com. Dig. tit. " Poir," 
 
 (C.6.)— 3M,&S.99.
 
 ^'^ Of Leases under Poxeers. [Chap. III. 
 
 in that settlement, (which were anciently and accustomably demised, 
 and whereof fines had been taken), at the ancient, usual, and ac- 
 customable rent, for three lives, for one and twenty years, or any 
 other number of years determinable on three lives, that rent which 
 was then or /asi lefore reserved upon a lease in being of the same lands, 
 or on a loas.^ wh-ch expired last before the time of the settlement 
 made, must be the sum and no other {a). 
 
 But Lord Coivpery in the same case, doubted as to this point, and 
 suggested, that suppose lands were leased once at a greater and twice 
 at a lesser rent, he took the rent of the former lease to be the ancient 
 rent : the last lease might be made by him that had the fee, who was 
 not bound to reserve the ancient rent, but might let it for nothing if 
 he pleased.— So, his lordship thought that this rule would likewise 
 not apply to lands anciently demised, whereof fines had been taken ; 
 for there the rents were more or less, as the fines were higher or 
 lower (i^). 
 
 But it seems that, if the custom of the country where the lands lie 
 be to lease partly on a rent, and to take a fine for the remaining value, 
 then Lord i/c//'s mode of ascertaining the ancient rent is most rea- 
 sonable. — So, if such power be to lease, reserving so much yearly 
 rent or more as hath " been most accustomably" yielded or paid within 
 twenty years next before such lease thereof made, the rent reserved 
 within the twenty years must be the measure of the reservation upon 
 leases made by virtue of such power, although a greater rent hath 
 been reserved before tlie twenty years (r). 
 
 But if several rents have been reserved within the twenty years re- 
 ferred to. Lord Holt's rule seems in that case the most proper to go 
 by: unless the leases on which the rent has been reserved within the 
 twenty years have been sometimes with fines and sometimes without, 
 in which case Lord Coiuper's rule seems best (d). . 
 
 Tenant for life under a power in a settlement to lease at the " usual 
 rent" may demise upon reserving the usual fines and rent, where the 
 usual profit had heretofore been made by fines •, for if the trustees 
 under the settlement were obliged to let the lands at a rack-rent, it 
 might be quite inconsistent with the nature of these estates (^). 
 
 If a lease be made under a power to demise, reserving the true and 
 ancient rent, and the rent reserved be not conformable to that both in 
 quantity aqd quaHty, and manner of reservation also, the lease (it is 
 said) will be void(y). 
 
 Thus where rent anciently payable in gold, was in a new lease 
 under a power so restricted made payable in silver, such lease would 
 notbnin: for the variation may be prejudicial to the remainder-man. 
 But a reservation of ** eight bushels" where " a quarter of corn" 
 
 (d) .3 Cb. Rrp. <'j6. i Vcrn. 5.11,54a. Bac. Ahr. tit. " Lrasfs." (/5) Ibid. 
 
 (0 jrowelj on Power*, ^jil. (-V) Ibid. (<•),) Bui r. 1446. (/) Powell on Povv.j^J, 
 
 6
 
 Sect. VIL"] Of Leases under Foxoers. 55 
 
 •was mentioned in the power, v/IU be good: for the variation is only 
 in words (<t). 
 
 If a tenant in tail be of two farms, under a settlement, one of 
 which has been always let at 20/. rent, and the other for 10/. rent, 
 he may not, (it is said) by virtue of such power, make a lease of both 
 for twenty-one years, rendering an entire rent of 3c/. (^). 
 
 So, two farms, usually let to separate tenants, cannot be let by one 
 lease to one tenant, by 32 i7. 8. c. 28. though a greater rent be re- 
 served (c). 
 
 For the intent of such reservation is, not only that the old sum of 
 money shall be reserved, but that it shall be issuing out of the old 
 land (J). 
 
 Improving the estate will not be considered such an alteration as 
 varies the rent, by making it to issue out of other hereditaments than 
 those contained in the power: as where the tenant entered and built a 
 new house upon the land, and then made a lease for twenty-one years, 
 reserving only the ancient rent, ^c, the court would not suffer an ob- 
 jection to it to be argued (e). 
 
 If a power to lease be, provided, that two parts in three of the im- 
 proved value be reserved as a rent, the reservation may be made in 
 the terms of the power; and the constant payment of such a sum as 
 amounted to that at the time of making such a lease, will be good, 
 whether the tenements that are the subjects of it rise or fall in 
 value (/). 
 
 But in general, it seems necessary, that the sum intended to be re- 
 served under such provisoes in family settlements and conveyances, 
 should be specifically stated in the lease : for otherwise the remainder- 
 man may be put to infinite trouble and expense. It hath, therefore, 
 been held, that the reservation may not be made in the same or as 
 general terms as the power itself is; as, by simply transcribing the 
 clause respecting the reservation of the ancient and accustomable rent, 
 £s*r. in the instrument creating the power to lease, into the lease, 
 leaving the necessity of averring and proving what was the ancient and 
 accustomable rent to the tenant for life or remainder man (g). Tenant 
 for life with power to make leases of all lands anciently demised, re- 
 serving the ancient rents or more, and of other lands reserving the 
 best and most improved rents that could be got, makes a lease of part 
 of the premises usually demised reserving " the old accustomed 
 rents;" and a lease of other part not usually demised, reserving " such 
 sum of money as should amount to the best and most improved yearly 
 rent :" both these leases were held to be void as against the remainder- 
 
 (d) Resol. in 5 Rep. 3, 6. Mountjoy's Case. [b) Ibid. (f) Cro. Car. SJ. 
 
 {d) Powell on Powers, 554. (i) i Leon. 147. (/) Powell on Powers, 555. a Ch. R. 8z. 
 {£) Powell ut ante. 3 Bro. r«r. Ca. 248. Gilb. Eq. R. 45. ij. C. % Vein. 531, 542.
 
 -56 Of Leases under Powers. [Chap. 111. 
 
 man ; the first not being warranted by the power, and the other for 
 the uncertainty of it (a). 
 
 So, where tenant for life had made a lease of the lands not usually 
 letten, reserving therefore the best and most approved rents for the 
 same according to the words of the power ; this was held to be so 
 utterly uncertain, that nothing was offered to support it {b). 
 
 But where such rent is ascertainable, it is otherwise ; for id certum 
 est quod certum reddi potest. — ^Therefore, where a power was, by a set- 
 tlement, to make leases of land anciently demised, reserving at least 
 1 2d. for every Cheshire acre, and a lease was made of all the lands 
 anciently demised, reserving all the rent intended to be reserved: though 
 these words were very general and uncertain in themselves, the reser- 
 vation was held good, because it might easily be ascertained by 
 the reference of the i2d. at least for every Cheshire acre, for it is 
 known what a Cheshire acre is, and that may by admeasurement 
 be at all times ascertained, and depends not upon uncertain evi- 
 dence {c). 
 
 If the lease be of lands subjected to a power, together with other 
 lands not so subjected, and there be equivocal words, tinder which 
 the reservation of the rent may be referred to, namely, whether to the 
 premises on which the power attaches, or otherwise, and the lease 
 cannot take effect unless the rent be to issue out of those premises : 
 then the better opinion seems to be, that the reservation shall be taken 
 as referable only to the premises subjected to the power, and that by 
 that means the lease may be made good {d). 
 
 It seems that several leases may be made in the same deed, under 
 such a power, if the reservations be several and certain. — Thus where 
 a lease for a term of years was made of the manors of A. B. and C. 
 by indenture, rendering annually to the lessor, his heirs and assigns, 
 for A. I o/. for B. 61. for C. 4/. at the feast, l^c. and payable at one 
 place out of the manor, with a condition to re-enter into the said 
 three manors for non-payment of the said rents, or any of them, or 
 any part or parcel of them within a month after the said feast, is'c. 
 The lessor entered upon the lessee into all the three manors, for rent 
 of one of the manors in arrear, and one point was, whether the 
 several reservations of the rent, were several tenures, demises, rever- 
 sions, and rents, and to be avowed for severally ? Three of the jus- 
 tices held that they were : but Dyer J. held not, because they were 
 not divers leases, but one lease to one person, and one limitation of 
 an estate, and consequently that there was but one reversion to which 
 the rent was incident ; and that therefore, the several reservations of 
 
 (a) (> liro. C;is. in Pari. 145. (/-) I'dwcH iii riiilc. (<-) B.ic. Abr. tit. " Leases." 
 
 3 Lli. li. 61, 76. (/) I'owcU on I'liwcrs, 567. 1 Viiit. 3,18, sy). I Vent. 2a8. diitc.
 
 Sect. VII.] Of Leases wider Poxvers* 57 
 
 several rents could not change the nature of the reversion, which was 
 the principal, the rent being only accessary. Idea quare (a). 
 
 When a power was to lease certain lands at the ancient rent; and 
 a lease was granted of several parcels of the lands, reserving a sepa- 
 rate rent for each separate parcel ; and the lease was void as to one 
 of the parcels because the ancient rent for that parcel was not re- 
 served ; the lease was nevertheless held good for the other parcels 
 upon which the ancient rent was reserved (^). 
 
 if there be a difference as to the time of the payment of the rent, 
 so that it be not payable at the same periods as anciently, that will 
 vitiate a lease, under a power restricted to be made, rendering the true 
 and ancient rent (c). Thus a reservation of the rent at two days, 
 where the rent was formerly reserved and payable at four days, was 
 hold, in Motintjofs case, to make the grant and render void ; be- 
 cause it was ad nocumentumy to the injury of the heirs in tail, which 
 was restrained by the statute that created the power : for it was more 
 beneficial for them to have it paid at four feasts than two ; and all 
 beneficial qualities of the rent ought to be reserved and observed (<^). 
 
 In this respect, leases under powers in settlements differ from 
 ecclesiastical leases under 13 Eli-z. (of which hereafter :) for in them 
 a reservation at two days when the rent was payable formerly at four 
 days does not vitiate the lease, because the statute does not avoid such 
 lease if the accustomed yearly rent or more be reserved {e). 
 
 The whole rent must be payable annually during the whole term ; 
 for the design of the donor is not answered, unless a continual re- 
 venue be yearly payable by compulsion of law, and not in expectancy, 
 or infuturo {f). 
 
 But, under a power to make leases, reserving the ancient yearly 
 rent annually, yet if it were reserved upon a day before the year was 
 up, as if the year ended at Christmas, and it was reserved at Michael- 
 masy it would be well pursuant to the power (^). 
 
 Heriots and the like need not be reserved in a lease made under a 
 power, restrained to the rendering the true and ancient rent ; for they 
 are casual and accidental services, and therefore fall not within the 
 meaning of such restriction {!:). 
 
 Although in common law conveyancesj no rent can be reserved but 
 to the lessor, donor, or feoffor, and his heirs, who are privies in blood, 
 and not to any who is privy in estate, as, to him in reversion, remain- 
 der, ^c. yet in the case of powers the reservation by tenant for life is 
 good, and shall enure as rent to the remainder-man, and he may dis- 
 train for it (/) ; and this, though it be reserved to such tenant for life, 
 and his heirs ; for powers take effect through the medium of the sta- 
 
 (ff) Powell on Powers, j6o. {b) 3 M. & S. 99. {c) Powell on Powers, 571. 
 
 (,0 a8 H. 8. c. 28. («•) Cro. Jac. 76. (/) i Burr. 121. 
 
 (i;) a Ld. Ray. 2198. (Jj) Cio. Juc. 76. 1 Com. R. 312. Q) Powell on Powers, J73.
 
 >1 
 
 58 Of Leases under Po'ivers, [Ciiap. III. 
 
 tute of Uses, which executes the possession according to the limita- 
 tion of the use, and such lease, when made, takes effect, out of the uses 
 of the settlement by which it is created (a). 
 
 Thus, where a question was, whether the words of the reservation 
 did not make that which was called a rent, to be only a sum in gross, 
 and not rent, and so turn the reservation of rent into a condition ? the 
 Court held that the land was distrainable for it as for rent, and that it 
 was not a payment upon condition {b)\ one reason for which was, that 
 it was not the intent of those who were parties to the indenture to 
 make it a condition, but rather to make a limitation of the rent for 
 the uses mentioned ; and that it could not ensue the nature of a con- 
 dition, for it could not be taken as a condition at common law, because 
 those in the remainder were mere strangers to the condition ; and a 
 condition united to the use of the term it could not be ; for, if it 
 were so, he in remainder being a stranger, could not in law take ad- 
 vantage of it : but if it were rent, he immediately in remainder might 
 distrain for the rent, when it incurred due, by reason of the statute 
 27 H. 8. c. 10. of Uses, by which it was enacted, " that the intent 
 of the parties should be observed." Therefore, if the use were so 
 limited that a stranger should have the rent, l^c. he should have it, 
 and might distrain for it (r ). 
 
 When the power declares that the lease shall be under the hand 
 and seal oi the party, and executed in the presence of and attested by 
 witnesses, the attestation must state that the lease was signed as 
 well as sealed and delivered in the witness's presence, or it will be 
 void. And the omission cannot be supplied by parol testimony or 
 by a subsequent attestation in the proper form after the death of the 
 lessor {d). 
 
 In the usual power of leasing, besides the reservation of the best 
 rent, it is commonly required that the lessee covenant for payment of 
 the rent, that a clause of re-entry in default of payment be inserted, 
 that the lessee be not made dispunishable for waste, and that he 
 execute a counterpart ; and if these conditions are required, and any 
 of them be not complied with, the lease will be void. It should 
 seem indeed that the circumstances, usually made requisite in powers 
 of leasing, must be considered as implied, although not expressly re- 
 quired (^). 
 
 Under a power to lease reserving a condition of re-entry for non- 
 payment of rent for twenty-one days, a lease granted with a condition 
 for re-entry for non-payment of rent within twenty days, in case no 
 sufTicicnt distress could be taken on the premises, whereby to levy the 
 rent, ^c. is not a good execution of the leasing power •, because such 
 
 (j) 8 Rep. 70. {!,) Andcr. 378. {>■) Stat. ^^ \\. 8. c. 10. (</) 4 Taunt. 213. 
 
 6 Taunt. 402. a Maish. loi. aM.&iJ,j76. 3 M. & 6. jxa. (f) Sugden on 
 
 ro\vci5,ja7,jjo.
 
 Sect. VII.] Of Leases under Foxvers, .59 
 
 conditional power of re-entry is less beneficial to the remainder-man 
 than an absolute power of re-entry on non-payment of rent [a). 
 
 If contrary to the clause that the lessee be not made dispunishable 
 for waste, he be empowered to work unopened mines {h), to fell tim- 
 ber, or the like, the lease is void ; unless in the case of a building 
 lease, where the clause would be deemed repugnant to the power, and 
 the lessee might pull down old buildings, ^c. in order to erect new 
 ones {c). 
 
 Where a power to lease was restrained to be executed, reserving 
 ancient, usual, and accustomed rents, heriots, boons, and services, a 
 covenant " to keep in repair," was held to be " an ancient boon," and 
 the omission of it was deemed fatal {d). 
 
 Under a power to a tenant for life to lease for years, reserving the 
 
 ..husual covenants, ^c. a lease made by him, containing a proviso, that 
 
 ^in case the premises were blown down or burned, the lessor should 
 
 rebuild, otherwise the rent should cease, is void ; the jury finding that 
 
 such covenant is unusual {e). 
 
 What covenants are usual or not is a question of fact, it seems, 
 for the decision of a jury : for Buller J. in the preceding case, ob- 
 served, iliat " the Court were relieved from determining whether the 
 covenant was usual or not •," because the jury had expressly found 
 that it was unusual {f). 
 
 But if the covenants in a lease under such a power be, upon the 
 whole, such as leave the parties upon the same footing as under former 
 leases, (as where it appeared that what was thrown on the landlord 
 was compensated by what was paid by the tenant), their differing in 
 trivial circumstances will not be material {g). 
 
 A renewable lease was held not to be inconsistent with a covenant 
 to let and manage to the best advantage, with reference to the sub- 
 ject which was a trust for creditors [h). 
 
 It is no objection to a lease under a power " that it is in trust for 
 him who executes the power," provided the legal tenant be bound 
 during the term in all requisite covenants and conditions (i). 
 
 Livery is not necessary to a lease for lives, under a power, (though 
 it be incident thereto at common law,) and it hath been held to be a 
 forfeiture of the pov/er ; but Lord Ha/e conceived it was not a for- 
 feiture, because a lease by virtue of a power, takes effect out of the 
 settlement that gives the power, and by sealing the lease the power 
 is executed ; and then the livery comes too late to affect it. 
 
 If a power be to ^. or his assigns, to make leases, ^c. the power 
 runs with the estate to the assignee in deed, or in law. — If, therefore, 
 a power be given to a lessee for years and his assigns, to make leases 
 
 (a) i3East,R. n8. (i) Ambl. 740. (c) Willes, 169. (J) Cited ibid. ia2. 
 
 <<?) 1 T.R. 70J. (/) Powell on Powers, 579. (g) Ibid. Dong. 563. 
 
 (4) 13 Vcs. 547. (0 I Burr. ia4.
 
 €0 Of Leases hij Tenant for Years. [Chaj). III. 
 
 for lives, such power goes to his executor, though only an assignee 
 in law, or to the assignee of the executor. But a power to an executor 
 to raake leases does not extend to the executor of his executor {a). 
 
 A power under an Act of Parliament to lessee, his executors, ad- 
 ministrators, and assigns, to grant building leases, does not extend to 
 the tenant in a renewed lease, according to the usual course of church 
 leases {b). 
 
 If A. settles land to the use of himself for life, with power to make 
 leases, and afterwards to D. upon such trust as he shall afterwards 
 declare ; if A. declares the trust for payment of debts, and afterwards 
 leases at a small rent, the lease is not defeated by the execution of his 
 power, for it is precedent to it [c). 
 
 So, if a man having a power annexed to his estate, charge his estate, 
 and afterwards executes his power, the estate which arises by the exe- 
 cution of the power shall be subject to the charge during the estate : 
 as if tenant for life, with power to make leases, grants a rent-charge, 
 and afterwards makes a lease, the lessee shall take, subject to the rent- 
 charge during the life of the lessor {d). 
 
 A lease under a power by a person having only a particular estate, 
 if not conformable to the power, is not good at law ; but when the 
 persons granting the lease, have at law the inheritance, with directions 
 only how they are to execute leases, the legal estate passes (^). 
 
 If there be a power of revocation, and a lease for years is made, 
 such power is suspended quoad the term, but after it is good {f). 
 
 Section VIII. Of Leases by Tenant for Years. 
 
 As a lessee or tenant for years may assign or grant over his whole 
 interest, so he may grant it for any fewer or lesser number of years 
 than he himself holds it ; and such derivative lessee is compellable to 
 pay rent, perform covenants, t^c. according to the terms agreed in 
 such grant or assignment. Also it is said [in Broke title Distress 7,] 
 tliat a termor so assigning may distrain for the rent, without any power 
 jeserved for that purpose ; though a person who assigns his whole in- 
 terest cannot, because he has no reversion (^). 
 
 But such derivative lessee is not liable (to the original lessor) for 
 the rent reserved on the original lease, otherwise than as his cattle, 
 i^c.) may be liable to a distress for rent arrear to the original lessor, 
 as any stranger's levant and couchant may be; for there is no privity 
 between him and the original lessor, as there is between a lessor and 
 an assignee : and therefore such an one, though he take the whole 
 term except one day, shall not be Uable to any of tlie covenants in 
 the original lease (/>). 
 
 {a) I Veat. 340. % Jon. no. (//) 13 Vcs. 155. (<•) Skin. 417. {d) Haid. 415. 
 (f) ijVcs. jgo. (/)iMuJ.ni, (iO Uat. AL.ui. "Lcascb." (A) Ibid.
 
 [ 61 ] 
 
 Section IX. Of Leases hy Tenant from Year to Year ; 
 or for a less Term. 
 
 Any one, possessed of a certain quantity of interest, may alienate 
 the whole, or any part of it, unless restricted from so doing, by agree- 
 ment with the party from whom he derives that interest or estate, or 
 by the terms upon which he takes it. 
 
 In fact the tenant has it as a right incident to his tenancy to make 
 a sub-tenancy, in order to do which, it is by no means necessary to 
 have the first landlord's assent : the law gives him authority to assign 
 his interest (a). 
 
 A tenant from year to year, therefore, may assign his term, or may 
 under-let part of it, as for three quarters of the year, or so many 
 months, life. So, upon the same principle, one possessed of lands or 
 tenements, for a lesJ term, as for half a year, a quarter, or a month, 
 or the like, may grant his interest, however small the quantity, or anv 
 portion of it, to another : for, while such interest endures, he has the 
 absolute disposition of it, unless some agreement subsists between him 
 and his lessor, that, by circumscribing his power, qualifies that dispo- 
 sition. 
 
 A tenant at will, however, cannot lease, for there can be no such 
 thing as an under-tenant to a tenant at will ; the demise itself would 
 amount to a determination of the will. Neither can he surrender, 
 any more than he can grant ; for, to surrender also, would be to de- 
 termine his will, and relinquish his estate (b). 
 
 As a tenant at will cannot grant or surrender, so h fortiori cannot 
 a tenant at suiferance. 
 
 Section X. Of Leases by Corporations. 
 
 A corporation cannot make a disposition of their property, nor do 
 any act relating to it, nor receive a grant, without deed. They cannot, 
 without deed, make a lease for years, nor grant a licence to take away 
 their trees ; and if a disseisin be made to their use, they cannot agree 
 but by writing under their common seal (c). 
 
 If a lease for years be made to a corporation aggregate of many, 
 they cannot make an actual surrender thereof, but by deed under their 
 seal ; but if they accept a new lease thereof, this is a surrender in law 
 of their first lease, and may therefore, by the statute of Frauds, be 
 without writing (d). 
 
 Neither can a corporation aggregate without deed authorize their 
 servant or agent to enter into land on their behalf, for a condition 
 broken j though this does not seem to have been always free from 
 
 (a) I East R. 598. T's. MSS. s. c. (3) i Inst. 57. a. Doug. 283. Cro. Eliz. 156. 
 
 (f) Ky. on Corp. ^63. (^) Bac. Abr. tit. Corporations, (E. 3.) 
 
 7
 
 62 Of Leases hy Corforalions, [Chap. III. 
 
 doubt (a). In one place It is said, that a man cannot justify as servant 
 to a corporation, without shewing a deed of retainer, and it is con- 
 trasted with the case of a man avowing as bailiff to a corporation, 
 which may be done without deed. In another place, where it is re- 
 ported to have been said by Littleton^ that it was the opinion of all 
 the Judges in the Common Pleas and King's Bench, that an assign- 
 ment of auditors by a commonalty is good without deed, it is added, 
 ** and so of a justification by their commandment." In a third place, 
 It is said to be the better opinion, that he who pleads the freehold of 
 dean and chapter, and that he entered by their commandment, ought 
 to shew a command in writing ; and the same of a servant of mayor 
 and commonalty. In another place, a distinction is made between a 
 corporation which has a head, as mayor and commonalty, and a cor- 
 poration without a head : in the first case, it is said, that a man may 
 justify entering into land by the commandment of the mayor, without 
 writing ; in the latter, that a command to enter must be by writing. — 
 Rolle lays it down as clear law, that " a corporation aggregate cannot 
 command their bailiff to enter into land of their own leasing for years, 
 for a condition broken, without deed ; for such commandment without 
 deed Is void {y) :" and this is consonant to the principle, that, where 
 the interest or title of the corporation is concerned, their officer must 
 be appointed by deed. 
 
 It seems however to have been generally admitted, that a bailiff 
 might be appointed to take a distress without deed. It is even said, 
 that " it is not necessary that he should be made bailiff before he dis- 
 train ; it is sufficient if the corporation agree to it afterwards, for 
 that his being bailiff is not traversable, and a member of the corpora- 
 tion may distrain in right of the corporation, and justify as bailiff." 
 Again, it Is said, "a man may justify as bailiff to dean and chapter, 
 and the like, without shewing the deed constituting him bailiff:" and 
 in more modern times, it has been laid down as a rule, that " a cor- 
 poration aggregate may appoint a bailiff to distrain without deed or 
 warrant, because the distress neither vests an interest in them, nor 
 devests one out of them (r)." 
 
 Where any personal act is necessary in the case of a corporation, 
 that act must be done by attorney appointed by deed under their com- 
 mon seal d). 
 
 Thus, if they accept rent from the assignee of a lease made by 
 them, that must be by warrant of attorney, in order to discharge the 
 original lessee : unless the corporation have a particular officer, whose 
 business it is to manage the revenues ; as is the case of the city of 
 Loudon. So, wherever delivery of a deed Is thought necessary, that must 
 be by attorney, who must have a letter of attorney for the purpose (<■.) 
 
 («) Bac, Abr. lit. Corf orations, (E. 3.) 262. (i) i Rol. 514. (<) KyJ. on Corp. i6o. 
 (7) Ibid. %(i%. (0 Ibid. 269.
 
 Sect. X.] Of Leases by Corporations » G3 
 
 A dean and chapter made a lease for three lives, and a letter of 
 attorney to deliver it on the land. Tivisden J. thought the letter was 
 void, the lease being a perfect lease by sealing, and the delivery after- 
 wards insignificant ; but Hale C. J. observed, that since he had sate 
 in the court, it had been ruled, that the latter execution was good, 
 and that the lease, on being sealed, was but an escrow, where the 
 letter of attorney was delivered at the same time (a). 
 
 On evidence at a trial in ejectment, the case was this. — A dean 
 and chapter having a right to certain land, but being out of posses- 
 sion, sealed a lease with a letter of attorney to deliver It upon the 
 land, which was done accordingly ; and this was held to be a valid 
 transaction, on the ground, that though putting the seal of a corpo- 
 ration aggregate to a deed be equivalent to a delivery, yet the letter of 
 attorney to deliver It on the land, suspends the operation of it till 
 actual delivery of It by the attorney {b). x 
 
 A deed by a corporation out of possession, containing a lease of 
 land and letter of attorney, is not good under the common seal, if the 
 attorney does not deliver it upon the land {c). 
 
 It Is a general rule, that a corporation cannot take but by their cor- 
 porate name : It is also a general rule, that It cannot grant but by Its 
 proper name of Incorporation, though every minute variation In the 
 name is not material to avoid a grant [d). 
 
 As to naming the corporation, we shall only observe, that corpora- 
 tions aggregate^ as dean and chapter, mayor and commonalty, warden 
 and fellows, ^c. may make or confirm leases, without expressing 
 either the christian or surname of the dean, mayor, warden, is'c be- 
 cause in their politic capacity, as a corporation aggregate, they con- 
 tinue always the same, and are said never to die ; but in leases or con- 
 firmations by a bishop, dean, mayor, ^c. or other sole corporation, 
 both their christian and surname, or at least their christian name, 
 ought to be expressed, [as John bishop of P.] because they are sub- 
 ject to death and succession, ^c, and therefore must be particularly 
 named, to shew whose lease, ^c. it was, and so, some hold too, in 
 the first case (e). 
 
 Where a corporation, declaring in a covenant by their modern 
 name, stated that citizens, isfc. were from time to time Immemorial 
 incorporated by divers names of incorporation, and at the time of 
 making the indenture by A. B. declared on, were known by a certain 
 other name, by which name A. B. granted to them a certain water- 
 course, and covenanted for quiet enjoyment : held that the deed 
 granting the water-course to them by such name was evidence as 
 against the defendants, who claimed under the grantor, that the cor- 
 
 (a) Kyd. on Corp. 270. (i)Ibid. (c) Com. Dig. tit. Fait. (A. 4.) (J) Carth. Z34- 7- 
 {e) 2 Inst. 666. Eac. Abr. tit. Leases, (G. 3.)
 
 64 Of Leases by ecclesiastical Persons, [Cliap. III. 
 
 poratlon was known by that name at the time, upon an issue taken on 
 that fact {a). ■ 
 
 A corporation aggregate may take any chattel, as bonds, leases, &c. 
 in its corporate capacity, which shall go in succession, because it is 
 always in being {h). 
 
 But regularly, no chattel shall go in succession, in case of a sole 
 corporation. By custom, however, it may : as in the instance of the 
 chamberlain of London. — ^Therefore, if a lease for years be made to a 
 bishop and his successors, and the bishop dies, this shall not go to 
 his successors, but to his executors (r). 
 
 A covenant in a corporation lease, to renew upon the falling in 
 " of one life for ever :" there is no equity to extend it to the case 
 where two are suffered to fall in, although a compensation be offered {d). 
 
 This subject is connected with that which follows ; other informa- 
 tion therefore will be found under the next article. 
 
 Section XL Of Leases by ecclesiastical Persons. 
 
 As to leases by ecclesiastical persons : bishops with the confirmation of 
 the dean and chapter^ parsons or vicars with the consent of their patron§ 
 and ordinaries, archdeacons, prebends, and such as are in the nature 
 of prebends, as precentors, chantors, treasurers, chancellors, and 
 such like ; also, masters and governors, and fellows of any colleges 
 or houses (by what name soever called), deans and chapters, masters 
 or guardians of any hospital, and their brethren, or any other body 
 politic, spiritual and ecclesiastical, (concurrentibus his qua in jure re- 
 qitirimtitr) might, by the ancient common law, have made leases for 
 lives or years, or any other estate of their spiritual or ecclesiastical 
 living, for any time without suit or limitation (<?), 
 
 By the before-mentioned statute, of 32 //. 8. c. 28. bishops and 
 the rest of the said spiritual persons, (except parsons and vicars) may, 
 at this day, make leases of their spiritual livings for three lives ^ or tiventy 
 one years y and such leases ivill be good both against themselves and their 
 successors. But, in order to be binding, they must have the effect of 
 all the qualities or properties before-mentioned and required by the 
 said statute, in the lease made by tenant in tail, and be made after 
 that pattern. But with respect to the old lease being surrendered, 
 there is an exception in favour of a bishop ; for if he make a lease for 
 twenty-one years to come to one man, and then, within a year after, 
 make another lease to another for twenty-one years, to begin from 
 the making of it, this, so as it be confirmed by dean and chapter, is 
 resolved to be a good lease. A lease by a bishop, wherein more 
 
 (rf) 10 East, 487. {!)) 13ac. Abr. til. Corporations, (E. 4.) {c) Ibicl. 
 
 ('/) 3 Dro. R. 5 J';. (fj Shcp. Touch. a8i.
 
 Sect. XI.3 Of Leases hij ecclesiastical Persons, 65 
 
 than the old rent was reserved, was held good ; two of the Judges 
 however, who were absent when the case was argued, were of a 
 diiferent opinion (a). 
 
 Next follows, in order of time, the disabling or restraining statute, 
 I EHz. c. 19. (made entirely for the benefit of the successor) which 
 enacts, that all grants by archbishops and bishops, (which include 
 even those confirmed by the dean and chapter ; the which were good 
 at common-law) other than for the term of one and twenty years, 
 or three lives from the making, without reserving the usual rent, 
 shall be void. Concurrent leases, if confirmed by the dean and 
 chapter, are held to be within the exception of this statute, and 
 therefore valid; provided they do not exceed (together with the lease 
 in being) the term permitted by the act. But, by a saving expressly 
 made, the statute did not extend to any grants made by any bishop 
 to the crown: the statute i J. i. t\ 3. however, extends the prohibi- 
 tion to grants and leases made to the king, as well as any of his sub- 
 jects. — Next comes the statute 13 Eliz. c. 10. explained and enforced 
 by the statures 14 Eliz. c. 11. iff 14. 18 Eliz. c. 11. and 43 Eliz. c. 
 29. which extends the restrictions laid by the last-mentioned sta- 
 tute on bishops to certain other inferior corporations, both sole and 
 aggregate {b). 
 
 These statutes are, however, in some respects altered by stat. 39 
 £5* 40 G. 3. r. 41, J-. I. whereby it is enacted, that where any part of 
 the possessions of any archbishop, bishop, master, and fellows, dean 
 and chapter, master or guardian of any hospital, or any other per- 
 son or persons, or body or bodies politic or corporate, having any 
 ecclesiastical living, shall be demised by several leases which was for- 
 merly demised by one, or where a part shall be demised for less than 
 the ancient rent and the residue shall be retained in the possession of 
 the lessor ; the several rents reserved on the separate demises of the 
 specific parts shall be taken to be the ancient rents within the mean- 
 ing of the statutes 32 H. 8. c. 28. i Eliz. c. 19. 13 Eliz. c. 10. and 
 14 Eliz. c. II. 
 
 Section 2. provides, that no demise made before passing the act 
 shall be valid, unless the several rents reserved upon the separate de- 
 mises of separate parts of tenements accustomably demised under one 
 lease, or if part be reserved in the possession of the lessor or lessors, 
 unless the rent reserved on the parts demised shall be at least so far 
 equal to the whole amount of the ancient rent or rents, that the part 
 not demised shall be sufficient to answer the diiference. 
 
 Section 3. provides, that where the whole of such dem.ises shall in 
 future be demised in parts, the aggregate rents reserved shall not be 
 less than the accustomed old rent, and so in proportion, where a pare 
 shall be retained in possession by the lessor. 
 
 («) % Mod. [57.] (/.) 2 El. Com. 330, 
 
 F
 
 C6 Of Leases hij ecclesiastical Persojis. [Cliap. Ill, 
 
 Section 4. provides, that no greater proportion of the accustomed 
 rent shall be reserved by any separate lease than the part of the pre- 
 mises demised will bear. 
 
 Section 5. provides, that where a specific thing shall have been re- 
 served by the lessor, it may be charged on a competent part of the 
 premises ; and in case such provision shall have been made for pay- 
 ment of any sum of money, stipend, is'c. it shall be deemed lawful 
 if the lands, &c. charged be greater annual value, exclusive of the 
 rent reserved. 
 
 Section 6. provides, that no lease shall be confirmed whereon no 
 annual rent is reserved to the lessors, ^c. 
 
 Section 7. provides, that the act shall not authorize the reservation 
 of any rent, on any such lease, made by any master, z^'c. of any col- 
 lege, in any other manner than required by the 1 8 E/iz. c. 6. 
 
 Section 8. provides, that where payments have been reserved to 
 vicars, curates, schoolmasters, and other persons than the lessor, pro- 
 vision shall be made in the leases for the future payment thereof out 
 of premises of three times the annual value, exclusive of the rent, 
 except (section 9.) such payment depends only on the will of the per- 
 son granting or renewing the lease. 
 
 Section 10. provides, that persons holding such leases in trust, or 
 granting under-leases of specific parts under covenants of renewal, 
 may surrender them, in order that separate leases may be granted 
 by the original lessors to the cestui que trusts, and under-leases, on 
 reasonable terms, subject to the accustomed rent, l^c. and every such 
 surrender, and the new leases granted thereupon, shall be good in 
 law and equity, notwithstanding such under-leases and cestui que trusts 
 may be infants, issue unborn, Ifjc. or other persons incapacitated to 
 act for themselves ; provided such new leases be for their benefit, and 
 such be expressly declared in the body of each lease. 
 
 From laying all which together, we may collect, that all colleges, 
 cathedrals, and other ecclesiastical, or eleemosynary corporations, 
 and all parsons and vicars are restrained from making any leases of 
 their lands, unless under the following regulations: i. They must 
 hot exceed twenty-one years, or three lives, from the making. 2. The 
 accustomed rent, or more, must be yearly reserved thereon; respect- 
 ing which, the first sections of 39 and 40 G. 3. are particularly ex- 
 planatory, 3. Houses in corporations or market-towns may be let for 
 forty years, provided they be not the mansion-houses of the lessors, 
 nor have above ten acres of ground belonging to them, and provided 
 the lessee be bound to keep them in repair; and they may also be 
 alienated in fee simple for lands of equal value In recompense («) ; 
 therefore, a bond or covenant for rendering or making a lease within 
 a city or town may be enforced (h). 4. Where there is an old lease 
 (./) 1 lol.. ^(^>). (I,) a HI. Com. 320.
 
 Sect. XL] Of Leases by ecclesiastical Persons, 67 
 
 in being, no concurrent lease shall be made, unless where the old 
 one will expire within three years (a). Since the statute of Frauds 
 and Perjuries, (29 C. 2. c. 3.) which requires all surrenders to be in 
 writing, it was usual to have a covenant from the parson or corpora- 
 tion to whom the surrender was made, that they would, within such 
 a time, make a new lease, under such and such terms : the statute, 
 however, does not extend to surrenders in law, by taking a new lease 
 in writing {b). No lease (by the equity of the statute) shall be made 
 without impeachment of waste. 6. All bonds and covenants, tend- 
 ing to frustrate the provisions of the statutes of 13 and 18 Eliz. shall 
 be void (c). 
 
 As to lease?, therefore, made by parsons, vicars, and others, 
 having benefices or promotions with cure of souls, these things are 
 to be observed : i. That parsons and vicars are expressly excepted out 
 of 32 jF/. 8. c. 28. so that they are not, as other sole corporations, 
 enabled by that statute to make any leases to bind their successors 
 without the confirmation of the patron and ordinary, but remain as 
 they did, perfectly at common law, for any thing in that statute. 
 2. That an annual rent must be reserved to the lessor or lessors, 
 otherwise the lease cannot be confirmed. 3, That they are not re- 
 strained by 13 Eliz. c. 10. from making leases for twenty-one years, 
 or three lives ; but then such leases must not only be confirmed by the 
 patron and ordinary, but must also be made in conformity to the rules 
 or qualities before mentioned, otherwise they will not bind the suc- 
 cessor. 4. They, as well as others, are restrained by 13 Eliz. c. 10. 
 from making leases for any longer time, notwithstanding any confir- 
 mation, or conformity to those rules or qualities {d). 
 
 Another restriction occurs with regard to college leases (e), which 
 is created by stat. 18 Eliz. c. 6. (and is specially exempted from the 
 operation of the 39 £ff 40 G. 3. r. 41. by j-. 7. of that Act,) by which 
 it is directed, that one third of the old rent then paid, should for the 
 future be reserved in wheat or malt, reserving a quarter of wheat foi* 
 each 6s. 8d. or a quarter of malt for every .^s. or that the lessees 
 should pay the same according to the price that wheat and malt should 
 be sold for in the market next adjoining to the respective colleges, on 
 the market-day before the rent becomes due. This sagacious plan is 
 said to have been the invention of Lord Treasurer Burleigh and Sir 
 Thomas Smithy then principal Secretary of State ; who observing how 
 greatly the value of money had sunk, and the price of all provisions 
 risen, by the quantity of bullion imported from the newly found 
 IndieSf devised this method for upholding the revenues of colleges. 
 Their foresight and penetration have, in this respect, been very ap- 
 parent. The corn rent has made the old rent approach in some 
 
 (a) Bac. Abr. tit. Leases, (E. 3.) {l>) 39 & 40 G. 3. c. 41. s. lO. (c) % Bl. Com. 34O. 
 f(/) Bac. Abr. tit. Leases, (F.). ■ (J) 'i. Bl. Com. 3*2. 
 
 F2
 
 68 . Of Leases hj/ ecclesiastical Persons. [Chap. Ill, 
 
 degree, nearer to Its present value [a) ; otherwijse, it should seem, 
 the principal advantage of a corn rent, is to secure the lessor from 
 the effect of a sudden scarcity of corn. — The leases of beneficial 
 clergymen were farther restrained, in case of their non-residence, by 
 Stat. 13 Eliz. c. 20. 14 Eliz. c. II. 18 Eliz. c. ii. and 43 Eliz. c. 9. 
 But by 43 G. 3. c. 84. J-. 10. the 13 Eliz. c. 20. is repealed, together 
 with every explanation, l^c. thereof made by the ii\ Eliz. c. 11. 18 
 Eliz. c. II. and 43 Eliz. c. 9. and the penalties for non residence are 
 altered altogether. As far as the 43 G. 3. respects the present sub- 
 ject, it may be observed that by sect. 34. all contracts or agreements 
 made afier the passing of the Act, for the letting of houses of resi- 
 dence, or the buildings, gardens, orchards, and appurtenances ne- 
 cessary for the convenient occupation of the same, belonging to any 
 benefice, donation, perpetual curacy, or parochial chapelry, to which 
 houses of residence any spiritual persons shall be, by the order of the 
 archbishop or bishop, required to proceed and reside therein, (a copy 
 of such order being, immediately on the issuing thereof, transmitted 
 to one of the churchwardens, who shall forthwith serve it on the 
 occupier of such house of residence, or left at the same) shall be 
 null and void ; and any person continuing to hold such house or any 
 such building, ^c. or premises, after the day on which such spiritual 
 person shall by the said order be directed to reside therein, and after 
 service of such copy as aforesaid, shall forfeit forty shillings for every 
 day he shall, without the archbishop's or bishop's consent in writing, 
 wilfully continue to hold such house, building, l^fc. the said penalty 
 or penalties to be recovered by action of debt, bill, plaint, or infor- 
 mation in any court of record at Westminster^ or the courts of great 
 sessions In Walesy and the whole to go to the person suing, together 
 with costs : but in case of any contract before the Act, the person 
 holding shall not be liable to any penalty for three calendar months 
 from the service of such order as aforesaid : and sequestration for dis- 
 obedience to reside shall not issue for three calendar months, to be 
 computed from the service of such order of the archbishop or bishop. 
 Neither shall any person be liable for non-residence while such tenant 
 shall continue to occupy, -f. 35. 
 
 At common law, if a parson had made a lease for years of his glebe 
 land, to begin after his death, or granted a rent-charge in that manner, 
 and such lease or grant were confirmed by the patron and ordinary, 
 this would have bouml the successor of the parson ; because here were 
 the consent and concurrence of all persons interested, and the lease or 
 charge bound immediately from the perfecting of the deed by the par- 
 son, patron, and ordinary, though it was not to take effect in pos- 
 session, till after the parson's death : but now, no confirmation what- 
 
 (rt) Cliii:.tinii'» N. 4.
 
 Sect. XI.] Of Leases hy ecclesiastical Persons. 60 
 
 ever will make such lease or grant good against the successor, by 
 reason of the statutes made to avoid them (a). 
 
 If a parson obtain a grant to build houses on church or college lands, 
 which is confirmed, (in case where confirmation is necessary,) yet 
 this grant is no alienation against the statutes, but is only a covenant 
 or licence, and nothing else j for the soil remains in the grantor, and 
 by consequence the houses built thereon are in him (^). 
 
 In some cases, the confirmation of the patron is necessary, and in 
 some not ; wherein this diversity is taken in the books. That such 
 sole corporations, who have not the absolute fee and inheritance in 
 them, as prebends, parsons, vicars, and such like, if they make any 
 leases or estates, there in order to bind their successors, the patron 
 must confirm the same : but such sole corporations who have the 
 whole estate and right in them, as bishops, abbots, ^c. or such 
 corporations aggregate, who have the whole fee and inheritance in 
 them, as dean and chapter, masters, fellows, and scholars of any 
 college, hospital, i^c. these may make leases to bind their successors, 
 without any confirmation of the patron or founder, though the bishop, 
 abbot, dean, master, ^c. were presentable ; and the reason of this 
 diversity appears in the nature of the right with which each is in- 
 vested (c). 
 
 But if a parsonage or vicarage be a donative, then the confirmation 
 of patron alone is sufficient to all leases, ^c. made by the parson or 
 vicar, and shall bind the successor without the confirmation of any 
 other (J). 
 
 Yet, if there be a lord-paramount, as well as an Immediate patron, 
 confirmation of the immediate patron, without the other's confirma- 
 tion, is not good ; as if a parson be patron of the vicarage of the same 
 church, and the vicar makes a lease confirmed by the parson and or- 
 dinary, this is not good without the confirmation of the patron of the 
 rectory also, because both have an interest in the possessions of the 
 vicarage (e). 
 
 As a patron may confirm explicitly by his deed or writing, so may 
 he also confirm by consequence of law : for, if a parson makes a 
 lease for years to the patron, who grants or assigns it over to another, 
 this amounts to a confirmation in law by the patron, because a confir- 
 mation being nothing but an assent under the hand and seal of the 
 party confirming, such assent in this case sufficiently appears by his 
 assigning over the lease to another (y). 
 
 Another difference observable in the manner of confirming such 
 leases as we are treating of, is, as to their duration, or continuance : 
 for, if a parson make a lease for twenty-one years at this day, and the 
 
 (o) Bac. Abr. tit. Leases, (E.) (l>) Ibid. {c) Bac. Abr. tit. Leases, (G. a.) 
 
 (</; Ibid. (0 Ibid. (/) Ibid.
 
 70 Of Leases by ecclesiastical Persons. [Chap. III. 
 
 patron and ordinary confirm his estate therein for seven years, or (after 
 reciting the lease) « not beyond" that term, yet is the estate or lease 
 well confirmed for the twenty-one years ; for when they confirm the 
 estate of the lessee, that is intire, and cannot be divided (a). 
 
 As to the estate wliich they who make such confirmation ought to 
 have, to make the lease effectually binding upon the successors, this 
 regards chiefly the patron, whose advowson or right of patronage, 
 being a temporal inheritance, and considered as such, is to be govern- 
 ed by the same rules as other temporal inheritances are : his confir- 
 mation, therefore, being in nature of a charge upon the advowson, is 
 to be directed by the estate which he hath in the advowson, and caii 
 continue no longer than that endures (b). 
 
 If, therefore, the patron had a conditional estate in the advowson, 
 and he confirm a lease of the parson's, and afterwards the condition 
 be broken, this defeats also his confirmation, so that the succeeding 
 incumbent shall not be bound by it. So, if a church be full of a 
 parson, and afterwards another is made parson, and he makes a lease 
 for years, which is confirmed by the patron and ordinary, yet the 
 lease is void; because he who made it 'was not parson, the church 
 being full before (f). 
 
 As to the time of confirmation, generally speaking, it is not 
 material whether it be before or after the making of the lease, which 
 is to be confirmed, so it be made in the life-time of the parties who 
 make the lease : for the confirmation is but an assent or agreement by 
 deed, to the making such lease or grant, and not a confirmation of 
 the estate itself (<^). 
 
 Thus, where a bishop made a lease on the second of May^ which 
 was confirmed the third of May^ and sealed the fourth of May^ this 
 was held a good confirmation [e). 
 
 Yet it hath been holden on the contrary, that if a confirmation be 
 made and delivered before the grant or lease be confirmed, that this is 
 not a good confirmation; and though, after the grant or lease, the 
 deed of confirmation be delivered again, yet that will not make ic 
 good; for that it was a deed by the first delivery, and the second 
 delivery will not make it good as an assent, because the assent ought 
 to be by deed, and the first delivery was void ; but that confirmation 
 may be made before the grant or lease be confirmed, the other cases 
 are express {/)■ 
 
 If a bishop, parson, or any other sole ecclesiastical corporation, 
 make a lease for years, which needs confirmation, his confirmation 
 ought to be made in the life and during the incumbency of the lessor, 
 for after his death, resignation, deprivation, or other amotion, the 
 
 (./; L5.it. Al.r. tit. Liases, (CJ. a.) {i) Ihid. (G. 3.) (.) Ibid. (7) Ibkl. (G. 3.) 4- 
 
 (r) Ibid. (/) Ibicf.
 
 Sect. ICII.] OJ Leases hij Trustees of Charities, 71 
 
 lease is become void for want of confirmation ; and then, confirmation 
 made after cannot revive it, though it be made in the vacation before 
 any successor comes in [a). 
 
 But if a parson make a lease for years, v/hich is not confirmed by 
 the bishop or patron, then in being, but by the succeeding bishop and 
 succeeding patron, this is a good lease, and shall bind the successor. 
 
 Section XII. Of Leases h^ Trustees of Charities. 
 
 Leases of charity lands are under the peculiar cognizance of the 
 Court of Chancery, and where a lease is made by trustees at an under- 
 value, by collusion between them and the lessee, the court can make 
 a decree not only against the trustees, but also against the lessee for 
 the surplus value {b). 
 
 The mode of granting leases of charity lands is sometimes pre- 
 scribed by the founder, as that the term shall not exceed twenty-one 
 years, that no fine shall be taken, ^c. and then the terms of the 
 power must be strictly pursued : and sometimes power is given to the 
 trustees to make leases generally, in which case they have a power 
 both in law and equity, either to take fines or reserve rents, as is most 
 beneficial for the charity {c). Where there is no power, the trustees 
 must be guided by the general principles of the court, which will take 
 care that a reasonable discretion is exercised [d). 
 
 Where the rules of the foundation directed that no lease should be 
 granted for more than twenty-one years, and that at the old rent, 
 taking a fine of two years' value ; a lease for twenty-one years at the 
 old rent, with a covenant by repeated renewals to make it up sixty 
 years, was decreed upon certain conditions, to be confirmed for 
 twenty-one years from the last renewal, but the covenant for renewal 
 was declared void, as rendering the lease no less prejudicial than an 
 actual lease for sixty years {e). 
 
 A college restrained by its constitution from making leases, other 
 than for twenty-one years, at a rack-rent, made an entry in their 
 audit book, recommending it to their successors to renew a particular 
 lease at less than the rack-rent, the tenant having made great im- 
 provements. The court refused to decree the renewal, censuring the 
 parties who had signed the order for a breach of the college statutes {/). 
 
 Where long leases of charity lands have been procured upon terms 
 very inadequate to their fair value, the court has, in several instances, 
 interfered to annul them, and to bring the lessees to a just account 
 of the rents and profits (g). 
 
 An alienation for ninety-nine years of a charity estate, if it be a 
 
 (<i) Bac. Abr. tit. Leases, (G. 3.) 4. (b) High, on Mort. 449. («) Ibid. 
 
 {d) lo Ves. Jun. s^S' (^) a Vein. 410. (/) i P. Wms. 655. 
 
 (^) 6 Ve.. Jun. 4^a. 10 Ves, Jun. S5S-
 
 72 Of Leases hy Trustees of Charities. fChap. III. 
 
 mere husbandry lease and without consideration, is a lease which the 
 court will not permit to stand, unless it is shewn to be fair and 
 reasonable, and for the benefit of the charity (r?). A long lease of a 
 charity estate is prima fade a breach of trust, and a proof of the cir- 
 cumstances that make it a" provident administration is thrown on those 
 who take such a lease {}>). Therefore, trustees of a charity cannot in 
 genera!, unless specially empowered, grant a lease for seventy years, 
 except for the purpose of building [c)\ for a case may occur in which 
 the property cannot be made beneficial without building, and the 
 trustees may have no fund. 
 
 In 1 7 15 the trustees of a charity granted a lease of lands, thereto- 
 fore let at "i^il. per annum ^ for nine hundred and ninety-nine years, in 
 consideration of 500/. to be laid out in improvements, and of /\J..per 
 anmim additional rent. The court considered this to be a sort of per- 
 petuity, destructive to the charity estate, and therefore decreed the 
 lease to be given up, but as the tenant had lately laid out 600/. ia 
 improvements, it was ordered that he should have just allowances 
 made him in the account which was directed [d). 
 
 It is laid down in a recent case (^), that neither a lease of charity 
 land for ninety-nine years, as a mere husbandry lease, upon terms and 
 at a rent adapted to a lease for twenty-one years ; nor a building lease 
 of nine hundred and ninety-nine years upon an expenditure, com- 
 mensurate to a term of ninety- nine years, can be supported. 
 
 But a lease of charity lands for eighty years, was supported as to 
 the interest of a sub-lessee, who had given a fair consideration, and 
 had no notice, except that the estate belonged to a charity (/) \ the 
 court observing that its feelings upon the abuse of a charity estate 
 must not carry it beyond what is just, even against those who are 
 guilty, much less against other persons ; and upon that ground the 
 decree should be mollified with regard to the interests of sub-lessees 
 having given a fair consideration ; merely directing them to pay the 
 rent to other persons than those to whom they had contracted to pay 
 it. The interests of those persons may be very fair, as between them 
 and those from whom they take ; and the relief in these cases is to be 
 adapted to the conduct of the parties, as the court finds them respec- 
 tively to have acted fairly or not, towards the trust. 
 
 Section XIII. Of Leases hy married Women ; and 
 Ilusbajids seised in right of them. 
 
 By the common law, if a husband seised of lands of inheritance in 
 right of his wife, make a lease thereof by indenture or deed-poll, 
 
 (^) 6 Vet. Jun. 4V2- lO Ves. Jim. 553. {b) Ihid. (0 ».^ Ves. Jun. J65. 
 
 (J) 6 Vc5. Jun. 4jZ. (r) 17 VcD. Jun. aSj. {/) Ibid.
 
 Sect. XIII.] Of Leases hj married Women, 8^c, 73 
 
 reserving rent, this, though voidable, will be good, unless the wife by 
 some act after the husband's death shews her dissent thereto ; for if 
 she accept rent which becomes due after his death, the lease is thereby 
 become absolute and unavoidable. 
 
 If a widow chooses to avoid such lease, notwithstanding her having 
 joined therein, then it is so absolutely defeated ab initio as to her, that 
 she may plead non demisit ; because, as to any interest that passed from 
 her she did not demise, nor in truth had any power to contract, but 
 the whole interest passed from the husband, and the lessee is in merely 
 by virtue of the husband's contract ; and yet because the lessee, by 
 his acceptance of such lease, admitted them both to have power to 
 join therein, he must accordingly during the coverture declare of the 
 lease by them both as an essential part of the description of the lease 
 whereby he makes title [a). 
 
 But the indenture or deed-poll, whereby such lease was made, being 
 no essential part either of the description or lease itself, because the 
 husband, during the coverture, might have made it by parol only ; 
 therefore it is not necessary nor usual for the lessee in his declaration 
 to make any mention thereof (^). 
 
 A lease made by husband and wife of the lands of the wife, and de- 
 livered by letter of attorney in both their names, will support a decla- 
 ration in ejectment on a lease by the husband only; for the delivery 
 by attorney being void as to the wife, it is the lease of the husband 
 only {c). 
 
 But if the husband and wife join in a lease for years by parol of 
 the wife's lands rendering rent, or if the husband solely make such 
 parol lease, rendering rent, this determines absolutely by his death, so 
 that no acceptance of rent, or other act done by the wife, will prevent 
 its avoidance ; for a lease for years being an immediate contract for, 
 or disposition of the land itself, if the same appears in writing duly 
 executed, so that there can be no variation or deviation therefrom at- 
 tempted by the lessee after the husband's death ; the law so far gives 
 countenance to such lease for the encouragement of farmers and hus- 
 bandmen, that the same shall continue in force till the wife's actual 
 dissent or disagreement thereto ; but because there can be no such 
 certainty of the terms of a parol lease, when nothing appears in writing 
 to manifest them, therefore they, like other charges of the husband, 
 fall off or drop with his estate or interest therein [d). 
 
 If the husband and wife make a lease for years of the wife's land, 
 without reservation of any rent, yet it hath been adjudged that this is 
 a good lease by them both during the coverture, and that the wife, 
 after the husband's death, may affirm the same by acceptance of fealty, 
 or bringing an action of waste : so that the reservation of rent is not 
 
 WBac.Abt. tit. Leases, (C. I.) (^) Ibid. (0 Cro. Jat. 6iJ. 
 
 {d) Bac. Abr. ut ante. 
 
 6
 
 74 Of Leases bif married Women; and [Chap. III. 
 
 essential to the existence or continuance of such lease after the hus- 
 band's death, but only a writing attesting the same, and the wife's 
 allowance and approbation thereof j for as the husband made such 
 lease at first without any reservation of rent, so the wife, if she thinks 
 fit, may continue the lessee in possession after his death upon the same 
 terms [a). 
 
 A husband seised in right of his wife cannot grant copies in his 
 own name, but the wife ought to join {b). 
 
 But if a husband seised of a copyhold in right of his wife, make a 
 lease not warranted by the custom, it is a forfeiture of the estate du- 
 ring the life of the husband only ; for it is not a continuing detriment 
 to the inheritance, or such an act as tends to the destruction of the 
 manor, in which case it would bind the inheritance of the wife after 
 the husband's death (c). 
 
 A husband letting copyhold lands of which he is seised in right 
 of his wife, by indenture, will not destroy the custom of demising 
 by copy, because the wife may enter after his death and avoid such 
 lease {d), 
 
 A woman guardian in socage, marries and joins with her husband 
 by indenture, in making a lease for years of the ward's land, yet after 
 her husband's death she may avoid the same in right of the infant 
 whose guardian she still continues to be, and to whom, when he comes 
 of age, she must be accountable for the profits [e). 
 
 A husband, in whom a long term of years was vested in right of 
 his wife, made an under-lease for the ten years, and upon borrowing 
 money of the lessee, covenanted to grant him another lease after the 
 end of the ten years, and to continue during the time he had any 
 right, but died before he made such lease ; it was decreed to be a 
 good disposition of the term in equity (f). 
 
 Touching leases made by husband and wife, pursuant to the sta- 
 tute 32 //. 8. c. 28. [concerning which statute vide antCy] the husband 
 may at this day, without fine or recovery, make leases of the lands, 
 tenements, or hereditaments, whereof he hath any estate of inherit- 
 ance in fee-simple or fee-tail in right of his wife, made before or after 
 the coverture, so as there be in such leases observed the conditions or 
 limitations before required in the leases made by tenant in tail ; and 
 so that the wife join in tlxe same deed, and be made party thereunto, 
 and seal and deliver the same deed herself in person : for if a man 
 and his wife make a letter of attorney to another to deliver the lease 
 upon the land, this lease is not a good lease from the wife warranted 
 by the statute ; and yet then, as in other like cases, of leases not war- 
 ranted by the statute, it is a good lease against the husband. When 
 the lease is such an one as is warranted by the statute, it binds the 
 
 (") B.<c. Abi. til. Lfastj, (C. 1.) (Ji) C»o. J.ic. yy. ((.) B^c. AI)r. iit ajuc, ic Cro. Cat. 7. 
 (y) ll.id. Cro. Liu. 45';. (,) H'lJ- v (/) IZ Mod. 43. 
 
 7
 
 Sect. XIII.] . Husbands seised in right of them. 75 
 
 husband and wife both, and the heirs of the wife ; but if it be an 
 estate-tall, it doth not bind the donor nor him in remainder (a). 
 
 Husband and wife, the husband purchased land to him and his 
 ■wife, and their heirs, and afterwards he, without his wife, lets this 
 land for sixty years, if they should so long live, rendering 280I. per 
 ann. rent at the two usual feasts, during the term, then the husband 
 dies, and if this lease should bind the wife by the 32 H. 8. c. 28. was 
 the question ; and it was held by three justices that it should : for the 
 wife is appointed to join only when she hath the sole inheritance by 
 the appointment of the rent to be reserved to the heirs of the wife, 
 and not where she hath a joint-estate, as in this case ; and then clearly 
 by the body of the act, the lease by the husband solely is good, and 
 the proviso does not extend to it ; in truth, the lease determined by 
 the death of either of them [b). 
 
 A husband possessed of a term> in right of his wife, may dispose 
 of the whole or any part of it. 
 
 So, he may make a lease to commence after his death, and it will 
 be good, though the wife survive ; for, having an interest to dispose 
 of in his life, he might dispose of all the term, and it should bind the 
 feme : so, when he hath disposed by an act executed in his life of the 
 interest of the term, and hath created a term in interest, this is as 
 good as if he had granted all the term (<:). 
 
 But, if the wife had only the possibility of a term, the husband 
 cannot dispose of it : as if there be a lease to a husband and wife for 
 their lives, and afterwards to the executor of the survivor, the hus- 
 band cannot grant this executory Interest (J). Therefore he cannot 
 grant a lease to endure beyond both their lives. 
 
 It is now settled that a nian possessed of a term of years in right of 
 his wife as executrix of her former husband, has power to grant and 
 convey the same : for the husband may administer in right of his 
 wife without her consent, though she cannot administer without the 
 consent of her husband ; and if the husband can administer. Jure 
 uxorisy without her consent, it is incident to the power of administra- 
 tion to sell or dispose of a term of years {e). 
 
 If the husband possessed of a term for seventy years in right of his 
 wife, make a lease of those lands for twenty years, to begin after his 
 death, this is good and shall bind the wife ; because the term being 
 but a chattel, he had power to dispose of it wholly, and by conse- 
 quence may dispose of any lesser interest thereout as he thinks fit, 
 and this being a present disposition, which he cannot revoke, binds the 
 interest of the lands immediately, though it takes not effect in posses- 
 sion till after his death : this differs therefore from a devise of such 
 
 {a) Shep. Touch. a8o. {i) Bac. Abr. tit. Leases, (C. i.) (<r) Com. Dig. tit. Barou & 
 I'cme, (E. 3.) 1 Cro. Eliz, %Z-J, {d) Com. Dij. tit. lU ante. {e) 3 Wils. 277. 
 
 a Bl. R. 801. s. c.
 
 76 Of Leases Inj Infants and Guardians. [Chap. III. 
 
 term, or any part thereof by the husband, by his will ; for that not 
 taking effect, nor binding the interest at all till after his death, comes 
 too late to prevent the operation of law, which, at the instant of death, 
 immediately casts it upon the wife surviving, and so defeats and de- 
 stroys the operation of the devise [ci). 
 
 But as to the residue of the term, whereof the husband makes no 
 disposition in his life-time, the wife, if she survives, will be entitled 
 to it ; because as to that, the law is left to take place, as it would have 
 done for the whole, if he had not prevented it by such his disposition 
 of part {h). 
 
 Yet if the husband demise for part of the wife's term, rendering 
 rent, the rent shall go to his executor or administrator, though the 
 wife survive (r). 
 
 Yet if the husband had granted away the whole term upon condi- 
 tion and died, though the condition were afterwards broken, and his 
 executors entered for breach thereof, the wife would, notwithstanding, 
 be for ever barred to claim any interest in the said term ; because 
 there was a total disposition thereof by the husband in his life-time, 
 and the breach or non-performance of the condition was perfectly 
 contingent and uncertain : besides that, the breach of the condition 
 happened not till after his death, and so the disposition continued per- 
 fect and uninterrupted during his life ; for if the condition had been 
 broken during his life, and he himself had entered for breach thereof, 
 it might be a great question if the wife surviving should not have the 
 term after his death, because by his re-entry for the condition broken 
 he is restored to the whole term in statu quoy and then being possessed 
 of it in right of his wife as he was before, it seems but reasonable 
 that the^vife should have it, if she survived the husband, as she 
 would have had if no such disposition had been made, since that dis- 
 position is now defeated and gone {d). 
 
 Section XIV. Of Leases by Iifants and Guardians. 
 
 With respect to the power that an infant possesses to grant a lease 
 that shall be binding, the cases in the books are somewhat contra- 
 dictory, and the point is hitherto unsettled. The better opinion how- 
 ever seems to be, that leases made by infants are not absolutely void, 
 but voidable on their attaining their majority. 
 
 " All gifts, grants, or deeds, made by infants, by matter in depd, or 
 in writing, which do take effect by delivery of his hand, are voidable 
 by himself, by his heirs, and by those who have his estate (<•)." The 
 words " do take effect," are the essential part of the definition, and 
 
 (j) Dae. Abr. lit. Baron & Feme, (C. a.) (A) Ibid. (<:) i Vern. 7. i8. 3 Atk. I35« 
 (i) 13ac. Abr. lit. Baton & Icmc, (C. 2.) (<) Perk. *. iz.
 
 Sect. XrV.] Of Leases by Infants and Guardians, 77 
 
 exclude letters of attorney, or deeds which delegate a mere power and 
 convey no interest {a). 
 
 All the books agree, that if an infant make a lease for years, he 
 cannot plead non est factum^ but must avoid it by pleading the special 
 matter of his infancy ; vi^hich favours the opinion of those who hold, 
 that the lease is not absolutely void ; for if it were absolutely void, 
 there is no good reason why he should not plead non est factum^ as a 
 feme-covert certainly may do in such a case, whose lease is absolutely 
 void, so that no acceptance of rent after the husband's death can make 
 it good [b). 
 
 An infant made a lease for years, and at full age, said to the lessee, 
 *< God give you joy of it ;" this was holden by Mead a good affirma- 
 tion of the lease •, for this is a usual compliment to express one's as- 
 sent and approbation of what is done (c). 
 
 What seems decisive upon the question is, that " the lessee can in 
 no case avoid the lease, on account of the infancy of the lessor," 
 which shews it not to be void, but voidable only ; and it is better for 
 infants that they should have an election {d). 
 
 The court of Chancery will decree building leases for sixty years of 
 infants' estates, when it appears to be for their good (i). 
 
 Where an infant makes a lease for years, reserving rent, and the 
 lessee enters, the infant hath election to allow him to be his tenant, 
 or to be his disseisor, whichever is most to his advantage j so, where 
 one enters, and claims as guardian, and occupies, the infant may allow 
 him to be either disseisor, or accomptant, whichever shall be for his 
 best advantage {f). 
 
 In case there be no testamentary guardian nor a mother, if the in- 
 fant has any socage land and is of the age of twelve if female, or 
 fourteen if male, he or she is allowed to choose his or her guardian, 
 as is frequently done on circuit, and is the constant practice, and 
 what the court of Chancery frequently calls on infants to do ; though 
 this is still liable to any reasonable objection made to such choice [g), 
 
 A guardian in socage may make leases for years in his own name, 
 and the lessee may maintain ejectment thereupon {h) ; for this guar- 
 dian is a person appointed not by any special designation of the party, 
 but by the wisdom of the law, in respect of the lands descended to 
 the infant; so that where no lands descend, there can be no such 
 guardian (i) : and his office originally was to instruct the ward in the 
 arts of tillage and husbandry, that when he came of age he might be 
 the better able to perform those services to his lord, whereby he held 
 his own land ; and though the office now be in some measure changed, 
 as the nature of the tenure itself is since the time that the socage 
 
 {a) 3 Burr. 1804. {b) Bac. Abr. tit. Estates, (B.) {c) Ibid. (d) 3 Burr. 1806. 
 (<•} 2 Vern. 124. (/) Cro. Car. 306. (f)aVes.375. (;&) Bac, Abr. tit. Leases, (1. 9.) 
 
 (;) Cro. Jac. 99.
 
 76 Of Leases by Infants and Guardians. J[Cliap. III. 
 
 tenants bought off their personal labours and services with an annual 
 rent to the lord, yet it Is still called socage tenure, and the guardian 
 in socage is still only where lands of that kind (as most of the lands 
 in England now are) descend to the heir within age ; and though the 
 heir after fourteen may choose his own guardian, who shall continue 
 till he Is twenty-one, yet as well the guardian before fourteen, as 
 he whom the infant shall think fit to choose after fourteen, are both 
 of the same nature, and have the same office and employment as- 
 signed to them by the law, without any intervention or direction of 
 the infant himself ; for they were appointed, because the infant, in 
 regard of his minority, was supposed Incapable of managing himself 
 and his estate, and consequently derive their authority, not from the 
 infant, but from the law ; and that Is the reason they transact all af- 
 fairs In their own name, and not in the name of the infant, as they 
 would be obliged to do. If their authority were derived from him. 
 
 From what has been said, it appears that a guardian in socage hath 
 not only a bare authorityy but an interest in the lands descended, and 
 therefore during that time may make leases for years in his own name, 
 as any other who hath an interest in lands may do ; for he is quasi 
 dominus pro tempore. If he makes leases for years to continue beyond 
 the time of his guardianship, such leases seem not to be absolutely 
 void by the infant's coming of age, but only voidable by him, if he 
 thinks fit ; for they are not derived barely out of the interest of the 
 guardian, or to be measured thereby, but take effect also by virtue of 
 his authority, which, for the time, was general and absolute ; and 
 therefore all lawful acts done during the continuance of that authority, 
 are good, and may subsist after the authority itself, by which they 
 were done, is determined, and consequently the infant, when he comes 
 of age, may by acceptance of rent, or other act, if he thinks fit, 
 make such leases good and unavoidable (a), 
 
 A testamentary guardian, or one appointed pursuant to the statute 
 12 Car. 1. c. 24. J-. 8. 9. 10. 1 1. Is the same In ofHce and interest as a 
 guardian in socage. 
 
 But a guardian by nurture cannot make any leases for years, either 
 in his own name, or in the name of the infant, for he hath only the 
 care of the person and education of the infant, and hath nothing to 
 do with the lands merely In virtue of his office ; for such guardian 
 may be, though the infant has no lands at all, which a guardian in 
 socage cannot {b). But such guardian, it seems, may make leases at 
 will. Though every guardian, except a guardian in socage, is but 
 tenant at will, and by consequence cannot make a lease for any cer- 
 tain time or number of years ; yet If a lease be made by such guar- 
 dian, the lessee is estopped to say, that being only tenant at wlll> he 
 had>K) power to make the lease {c). 
 
 (a) Bar. Al.r. tit. Leasts, (I. 9.) (/>) Iliiil. '-^ {c) 8 Mod. ,^12.
 
 Sect. XVI.] Of Leases hy Mortgagors and Mortgagees, 79 
 
 A lease renewed by a guardian for an infant's benefit, shall follow 
 the nature of the original lease : and in general a guardian or trustee 
 shall not alter the nature of the infant's property, so as to change the 
 right of succession to it in case of the infant's death, Unless by some 
 act manifestly for the advantage of the infant at the time [a), 
 
 A devise to a person as guardian, that he may " receive set and let" 
 for his ward, gives him an authority only, and not an interest {b). 
 
 Section XV. Of Leases by Eocecutors and Administrators, 
 
 Executors and administrators, as they may dispose absolutely of 
 terms of years vested in them in right of their testators, or intestates ; 
 so may they lease the same for any fewer number of years, and the 
 rent reserved on such leases shall be assets in their hands, and go in 
 a course of administration (r). 
 
 If administration be granted generally to one during the minority of 
 an infant executor, the grantee has authority to make leases of any 
 term vested in such infant, which shall be good till he comes of age j 
 and, as it has been also holden by ^ome, till he avoid them by actual 
 entry [d). 
 
 Section XVI. Of Leases hy Mortgagors and Mort- 
 gagees, 
 
 The mortgagor has no power of making leases to bind the mort- 
 gagee, but he may make leases which will bind his equity of re- 
 demption. 
 
 Where the mortgagor is himself the occupier of the estate, he may 
 be considered as tenant at will : but he cannot be so considered If there 
 be an under-tenant, that is a tenant in possession under a lease prior 
 to the mortgage ; for there can be no such thing as an under-tenant 
 to a tenant at will ; the demise itself would amount to a determina- 
 tion of the •w\\\[e). 
 
 If, therefore, a mortgagor, who continues in possession by consent 
 of the mortgagee, makes a lease for years, and the lessee enter, claim- 
 ing nothing but his lease, he is not a disseisor, but on payment and 
 acceptance of his rent, a tenant at will ; and if the mortgagor enter 
 after the expiration of the lease, he shall be tenant at will again to the 
 mortgagee : and his acts being by permission of the mortgagee, shall 
 not turn to his prejudice (/). 
 
 But if a mortgage be made with a proviso and agreement between 
 the parties, that the mortgagee, his heirs and assigns, " shall not 
 
 (a) 3 P. Wms. 101. & n. i. {b) Cro. Eliz. 678. (f ) Bac. Abr.lit. Leases', (f. 7.) 
 
 (d) 6 Co. 676. Bac. Al^j^tit. Leases, (I. 7.) (-r) Doug. 383. (/) Cro. Jac. 660.
 
 80 Of Leases hy Mortgagors and Mortgagees, [Cliap. III. 
 
 intermeddle with the actual possession of the premises, or perception 
 of the rents," until default of payment, the mortgagor is a tenant 
 at sufferance to the mortgagee, and not a tenant at will, as he would 
 have been on a covenant that he should take the profits till default of 
 payment (a). 
 
 Indeed the legal interest of a mortgagor in possession, has been 
 held to be inferior to that of a mere strict tenant at will {b). How- 
 ever, 'as to what in strictness is the interest of a mortgagor, after the 
 usual time given for the payment is expired, the estate becomes abso- 
 lute in the mortgagee at law. 
 
 As all leases, or other interests in the land, created by the mortga- 
 gor, subsequently to the mortgage, and before the foreclosure, are 
 void against the mortgagee ; he may treat the tenants under such 
 leases, or persons claiming such interests, as trespassers, disseisors, 
 and wrong-doers (<:), or not, at his election ; unless where the acts of 
 the mortgagor have been done with the permission of the mortgagee. 
 If the mortgagee permits the lessee to enjoy his lease, the mort- 
 gagor may thenceforth be considered as a receiver of the rent, or, in 
 some sort, a trustee for the mortgagee, who may at any time counter- 
 mand the implied authority, by giving notice to the tenant not to pay 
 the rent to the mortgagor any longer (d). But if the mortgagee 
 elects the other alternative, the lessee may be turned out by eject- 
 ment {e). 
 
 Though the tenant be in possession under a lease prior to the 
 mortgage, yet the mortgagee, after giving notice, is entitled to the 
 rent in arrear at the time of the notice, as well as to what shall accrue 
 afterwards, and he may distrain for it after such notice (/)• 
 
 But where there is a tenant from year to year, and the landlord 
 mortgages pending the year, the tenant is entitled to six months' no- 
 tice, before he can be evicted by the mortgagee {g). 
 t With respect to leases by the mortgagee, he cannot, before foreclo- 
 sure of the equity of redemption, make a lease for years of the pre- 
 imises in mortgage to bind the mortgagor*, unless to avoid an apparent 
 loss and merely in necessity (h). 
 
 If mortgagor of a term join with the mortgagee in a lease for a 
 shorter term, in which the covenants for the rents and repairs are only 
 • with the rnortgagor and his assigns, and the interests of the mortgagor 
 and mortgagee become extinguished during the lease by the rever- 
 sioner acquiring their estates, still the mortgagor may maintain an 
 I action pf covenant against the lessee, the covenants being in gross (/). 
 But if a mortgagor and mortgagee make a lease in which the cove- 
 nants for the rent and repairs are only with the mortgagor and his 
 
 (a) Cro. J.1C.660. (A) Doug. 12. (c) Pow. on Molt. 227. Dougl, 21. 
 
 (</) I Aik.CoO. (f) Doug. 21. (/) Doug. 279. CiO I'l. R. 378. . 
 
 (A) 9 Mod. I. (0 6 T. K. 678.
 
 Sect. XVI.] OJ Leases by Mortgagors and Mortgagees, 81 
 
 assigns, the assignees of the mortgagee cannot maintain an action for 
 the breach of these covenants on stat. 32 H. 8. c. 34. because they 
 are collateral to his grantor's interest in the land, and therefore do not 
 run with it {a). 
 
 A court of equity refused on bill to compel an assignee of a term 
 in mortgage to discover his assignment ; the object of the lessor in 
 requiring it, being to make him liable to the covenants of the mort- 
 gagor, although he had not taken actual possession of the premises. 
 The Court dismissed the bill, and left the party to his remedy at law (b). 
 
 But in a subsequent case, where one hundred pounds were lent by 
 way of mortgage upon an assignment of a building lease, and the 
 mortgagee never entered nor took possession, but lost the money lent, 
 the defendant in equity having recovered against the mortgagee, as 
 assignee, the rent reserved on the lease, the bill was to be relieved 
 against the recovery at law ; and the Court dismissed it, saying, the 
 mortgagee was ill advised to take an assignment of the whole term {c). 
 
 Upon re-consideration of this question in the case of Eaton against 
 jfacquesy it was determined that a mortgagee, assignee of a term for 
 years, should not be liable to the covenants in the lease, unless he had 
 taken actual possession. But this doctrine no longer obtains (<^). 
 
 Indeed that the assignee is liable only in respect of actual posses- 
 sion is certainly contradicted by a case which arose on a bill by the 
 executor of a lessor against the depositary of a lease to secure to him 
 a debt, for the specific performance of a covenant to rebuild houses 
 upon the premises in the eleventh year of the term, which was a term 
 of seventy-one years ; to be held for the first ten years at a pecuniary 
 rent, for the eleventh year at a pepper-corn rent, and for the rest of 
 the term at a pecuniary rent. The defendant, by his answer, seated 
 the fact of the disposal by way of mortgage, and insisted that having 
 no title but as mortgagee, he was not bound to rebuild. Lord Thur- 
 low (Chan.) thought that there could not be a decree to rebuild, as 
 he could no more undertake the conduct of a rebuilding than of a 
 repair. But his lordship said, it was no matter whether the defendant 
 took it as a pledge, or as a purchase, for he could not take the estate 
 as a security, and refuse the burthen that was upon it ; but having 
 once taken it, he could not abandon it : that being then only an as- 
 signee in equity, no action could be brought, and that the only relief 
 that he could give the plaintiff, as he could not give him damages, was 
 to put him in a situation to recover them ; his lordship therefore de- 
 creed, that the defendants should take an assignment of the lease and 
 execute a counterpart, and that they should pay the costs {/). 
 
 Indeed, the principle, that a mortgagee is liable only in respect of 
 his possession seems no longer to be recognized in either a court of 
 
 (*) 6 T. R, 393. {b) Pow. oil Mort. l^z. (c) Ibid. 234. (d) Dou;. 455. 
 
 (<■) I Pow. on Mort. 241. 
 
 G
 
 S2 Of Leases hy Copyholders ; [Chap. III. 
 
 law or equity (a). — Thus, where the plaintifF was the original lessee 
 of a term, which he assigned to Kay, who assigned it by way of mort- 
 gage to the defendant as a security for the re-payment of a sum of 
 money, the action was brought to recover the amount of ground-rent 
 paid by the plaintifF during the interest of the defendant as mort- 
 gagee. Lord Kefjyon said, that the defendant was liable as assignee : 
 his liability was not limited by his possession, but as long as he had 
 the legal estate, so long he continued liable to perform the covenants 
 in the lease. If he wished to avoid that liability, he should have 
 taken an under-lease {b\. 
 
 A mortgagee in possession is not obliged to lay out money any 
 further than to keep the estate in necessary repair. — If the estate lies 
 at such a distance that he must employ a bailiff to collect the rents, 
 what he paid to the bailiff shall be allowed ; but not where he does or 
 may receive the rents himself (r). 
 
 If A. mortgage land to B. upon condition to re-enter on payment 
 of 10/ ; and afterwards A. before the day of payment is come, being 
 in possession, make a lease for years by indenture to C. and then af- 
 terwards performs the condition, this shall make the lease to C, good 
 against himself by estoppel {d). 
 
 Section XVII. Of Leases by Tenants hy Elegit, Statute- 
 Merchant,' and Statute-Staple, 8^c, 
 
 As tenant under these executions have only uncertain interests, 
 determinable at any time on payment of the sum secured, they cannot 
 enter into any contract for a lease, which will not be liable to be put 
 an end to in the same event ; but till such contingency occurs their 
 demises are good. It however very rarely happens that leases are 
 granted by persons thus entitled, and we shall not therefore enter 
 more at large into the subject. 
 
 Section XVIII. Of Leases by Copyholders; xvherein of 
 
 Licence. 
 
 A copyholder cannot, unless by special custom or by licence from 
 the lord, convey any common law interest in his lands to another, as 
 such an act is incompatible with his tenancy ; so that if he make a 
 lease for years without licence, though by parol only {e) ; or even if 
 it be to commence //; futuro (/), it will be a forfeiture of his tene- 
 
 («) Stone V. Kvans, Sitt. at Wcstm. T.T. 39 G. 3. T's. MSS. 
 
 (i) Doug. 438. («) 3Atk.5i8. (</) Bac. Abr, tit. Leases. (0.) 
 
 (<•) Moort, 393. Cm. F.liz. 498. (/) 'bid.
 
 Sect. XVIII.] wherein of Licence. 85 
 
 ment. But an interest must actually pass ; for a promise or covenant 
 to demise will not create a forfeiture, for it is no lease (a). 
 
 By special custom a copyholder may make leases for three, nine, 
 or twenty-one years, or for life and forty years after, without licence 
 from the lord ; upon which also he may maintain an ejectment {b). 
 
 But a custom that the lease shall be void if the lessor dies, is good; 
 though not if the lessor alien (c). 
 
 A lease for a year, without Hcence, is good ; but a lease for one 
 year et sic de anno in annum during ten years, being a good lease for 
 ten years, is a forfeiture : but otherwise of a lease for one year, with 
 a covenant for the holding it for a longer time at the will of the 
 lessor. So a lease for a year et sic de afttto in annum for the life of the 
 lessee, being a lease for two years at least, is not good. So, if de 
 anno in annunij excepting one day in every year, for it is a certain 
 lease for two years, excepting two days, which is a lease in effect for 
 more than one year ; and although there be the intermission of a day, 
 yet that is not material (d). 
 
 So, if a copyholder make three leases together, each to commence 
 within two days after the expiration of the other, it is a mere evasion 
 of the custom and therefore not good [e). 
 
 So if a copyholder, to secure a person who has become bound for 
 him, covenant that such person shall hold and enjoy the copyhold 
 estate for seven years, and so from seven years to seven years, for 
 the term of forty-nine years, if the copyholder so long live, it is a 
 forfeiture of the estate ; though there is a clause that the deed should 
 be void on the bond being paid; for this deed, though intended only 
 as a collateral security, amounts to a present lease (f). 
 
 A copyholder, having licence to lease, ought to pursue his licence 
 strictly, otherwise his lease is void(g). 
 
 As, if he has a licence to lease for twenty-one years from Michael- 
 mas last, and he leases for twenty-one years from December next. 
 So if he has a licence to lease for two years and he leases for three 
 years. So if a copyholder in fee has a licence to lease for years, if 
 he so long live, and he leases for years absolutely (/?>). 
 
 So, a copyholder having licence to make a lease for twenty-one years, 
 cannot make two leases for that term ; for he has satisfied his licence 
 by one lease [i). 
 
 If a copyholder makes a lease by licence, the lessee may assign with 
 licence, or make an under-lease, for the lord by his licence has parted 
 with his interest (k). 
 
 So if the lessor after a lease by licence dies without heir, the leasee 
 
 (a) 3 Keb. 638. i Bulst. 190. (b) Com. Dig. tit. Copyhold. (K. 3-1 
 
 W Ibid. (rf) Cro, Jac. 30X. (e) Cro. Car. 233. 
 
 (/) 2 Mod. 79. (g) Com. Dig. ut ante. {h) Ibid. 
 
 (1) Ibid. (/■) Com. Dig. v/ antf. 
 
 - G2
 
 S4 Of Leases by Copijholders ; [Chap. III. 
 
 shall have It for his term against the lord ; for the licence is a confir- 
 mation of the lord {a). 
 
 If the lord licence his copyholder to make a lease of lands in the 
 tenure of A. though they are in the tenure of B. yet the licence is 
 good [b), 
 
 A copyholder, having a licence to lease, may lease for fewer years 
 than his licence allows ; as a lease for three years, under a licence to 
 let for twenty-one, which is good (r). 
 
 If the lord license his copyholder for life to make a lease for three 
 years, if he so long live, a lease for three years absolutely is good: for 
 a lease by a copyholder for life determines by his death, and therefore 
 the condition annexed, being implied by law, is void (^d). 
 
 If the lord license upon condition, the condition is void j for he 
 gives nothing, but only dispenses with the forfeiture (e). 
 
 A licence may however be upon a condition precedent ; for till the 
 condition be performed it is no licence [f). 
 
 If a copyholder make a lease for years of land whereof a feme by 
 custom is to have her widow's estate, she shall not avoid the lease, 
 unless there be a special custom to avoid it ; for he comes under the 
 custom, and by the lord's licence, as well as the feme [g). 
 
 So if a copyholder, after a lease by licence, forfeits his copyhold, 
 the lord shall not avoid the lease ; or if he die, as before observed, 
 without any heir {h). 
 
 If a copyholder by licence makes a lease for years, rendering rent, 
 he cannot afterwards release the rent without a surrender of the 
 reversion (;'). 
 
 A lease for years by parol, made by the remainder-man of a copy- 
 hold in fee, commences immediately, if the tenant for life join with 
 him and surrender the estate to his use {k). 
 
 When the baron was seised of a manor in right of his feme, and 
 let a copyhold parcel thereof for years by indenture and died, it was 
 held that it should not destroy the custom to demise it by copy, but 
 after the death of her baron, the feme might so demise it as before. The 
 same law is, if tenant for life of a manor lets a copyhold parcel of 
 the manor for years, and dies, it shall not destroy the custom as to 
 him in reversion (/). 
 
 A lease for years by a copyholder, with the licence of the lord 
 where the widow by custom would be entitled to her freebench, if 
 the copyholder had died seised, defeats the widow of her free- 
 bench (w). 
 
 A lease without a licence, and contrary to the custom, in order to 
 
 (o) Com. Dig. ut ante. (l>) Cro. Elii. i6o. (0 Ibid- 535- tJro. Jac. 437. 
 
 (</) Cro. Eliz. [46z.] (<•) Ibid. (/) Com. Dig. ut ant*. 
 
 (jf) Cro. Jac. 36. (A) Com. Dig. ut ante. (») Ibid, 
 
 (i) Cro. El»«. 160. (/) Ibid. 4;^. {m) Cowp. 481.
 
 Sect. XVIII. ] Xi)herem of Licence. 85 
 
 amount to a forfeiture must be a perfect lease, and must have a cer- 
 tain beginning and a certain end, for otherwise the lease is void, and 
 carries but an estate at will at most, which is no forfeiture (a). 
 
 -Therefore, where a copyholder had demised his copyhold for a 
 year, and agreed to grant a further term of twenty-one years, pro- 
 vided he could obtain of his lord a licence for that purpose, this was 
 held to be a condition precedent, and that therefore no forfeiture was 
 incurred. 
 
 So where a copyholder agreed to demise, and let certain premises, 
 for a term of twenty-one yeais, and covenanted to procure a licence 
 to let the same, and that the lessee should peaceably enjoy for the 
 said term of twenty-one years ; this was held to be an executory 
 agreement, and not a lease ; for if it were held to be a lease, a for- 
 feiture would be incurred ; whereas that would be contrary to the in- 
 tent of the parties, who have cautiously guarded against it by the 
 insertion of a covenant that a licence to lease should be procured from 
 the lord {b). 
 
 A demise by a copyholder for one year, and at the end of that 
 term from year to year for the term of thirteen years more, in all 
 fourteen years, if the lord will give licence, and so as there shall be 
 no forfeiture with the usual covenants in a farm lease ; the licence 
 is a condition precedent, and not being granted, there is no lease at 
 law farther than from year to year, and there is no equity upon the 
 circumstance, that the lord purchased his tenant's interest with notice 
 of demise, and an express exception of all subsisting leases or agree- 
 ments for leases {c). 
 
 So an agreement by a copyholder to grant a lease for twenty-one 
 years, if the licence of the lord could be obtained, and that he would 
 use his best endeavours to obtain such licence, and that in the mean 
 time it should be lawful for the lessee peaceably to enjoy and occupy 
 the premises ; does not amount to a lease for a longer time than a 
 year, and is therefore not a forfeiture {d). 
 
 An infant copyholder without licence of the lord, made a lease for 
 years by parol, rendering rent, and at full age was admitted, and ac- 
 cepted the rent, and then ousted the lessee ; and in this case it was 
 adjudged, that the lease was a good lease till avoided, and that a lease 
 for years by a copyholder without licence is not a disseisin : and ad- 
 mitting that it should be a forfeiture in this case, yet if the lord 
 enters for it, the infant may re-enter upon him, and so is no mis- 
 chief; and therefore he, having accepted the rent at full age, hath 
 made it good and unavoidable, and being at all events a good lease as 
 to all strangers, for that reason principally it was adjudged that such 
 acceptance had made it good [e). 
 
 (a) Bac, Abr. tit. Leases. (I 6.) {!>) z T. R. 739. (.) n Ves. 170. 
 
 (<^) a Taunt. 54. __ _ ^(«) Bac. Abr. K/ j/i.'/.
 
 SC Of Leases by Jomt-Tena?its, [^Chap. 111. 
 
 A lease by a copyholder for a year, with a covenant to renew yearly, 
 we have before observed is not a forfeiture. In such covenant it 
 would perhaps be still better if it were worded " to permit and suffer" 
 the lessee to have, hold, and enjoy the lands in such manner : for a 
 covenant in that form, even of freehold lands, will not amount to an 
 immediate lease, because the words " permit and suffer" prove that 
 the estate is still to continue in him from whom the permission is to 
 come ; for if any estate thereby passed to the covenantee, he might 
 hold and enjoy it without any permission from the covenantor, and 
 therefore in such case the covenantee hath only the bare covenant for 
 his security of enjoyment, without any actual estate made over to 
 him (fl). 
 
 A copyholder agreed to grant a lease for years, if a licence could 
 be obtained, and also to procure the lessee a licence to dig fuller's 
 earth, and that in the mean time the lessee might dig, filling up the 
 holes. The lessee having dug, without filling them up, it was in- 
 sisted that the omission was an act of waste ; but it was held that the 
 digging constituted the waste, and that as the under-tenant dug by 
 the lessor's own licence, he could not insist on the forfeiture (^). 
 
 The admittance of a copyholder, after a forfeiture is incurred, is 
 clearly a waiver, and any act equally solemn will operate in the same 
 manner. Such acts as operate as a waiver do not operate as a new 
 grant, but admit the tenant to be in of his old title [c). 
 
 Every one having a lawful interest in a manor, may make voluntary 
 grants of copyholds escheated, or come to his hands, as well as ad- 
 mittances, rendering the ancient rents and services, which bind him 
 who has the inheritance (^d). 
 
 A grant therefore by any steward having colour of title, and grant- 
 ing not contrary to the command of the lord, is good. So of a clerk 
 of a steward, if he holds a court and makes grants ; for the tenants 
 cannot examine his authority, nor need he give them an account of 
 it. So, of a deputy [e). 
 
 But a tenant at will of a manor cannot grant a copyholder licence 
 to alien for years ; and if tenant for life of a manor grants a licence to 
 alien for years, it determines at his death {/). 
 
 Section XIX. Of Leases hij Joint-Tenants^ Coparceners, 
 and Tenants in common. 
 
 Joint-tenants, coparceners, and tenants in common, may either 
 make leases of their undivided shares, or else may all join in a lease 
 of the whole to a stranger. One joint-tenant, or tenant in common, 
 
 (/t) Cro. Jac. 310. Bzi. Ahr. ut ante. (i) a Tiiuiit. 52. {c) i'V.V.. iTt. 
 
 (./; Co;n. Dig. tit. Coi-yliold. (C. 3.) (<■) Ibid. (C. 5.; (/; Ibid. (C. 3.)
 
 Sect. XIX.] Coparceners, and Tenants in common. 87 
 
 may also make a lease of his part to his companion ; for this only 
 gives him a right of taking the whole profits, when before he had but 
 a right to the moiety or share thereof; and he may contract with his 
 companion for that purpose as well as with a stranger {a). 
 
 If there be two joint-tenants, and they make a lease, by parol or 
 deed-poll, reserving rent to one only, it shall enure to both ; yet if 
 the lease had been by deed indented, the reservation should have been 
 good to him only to whom it was made, and the other should have 
 taken nothing. — ^The reason of the difference is this : where the lease 
 is by deed-poll or parol, the rent will follow the reversion, which is 
 jointly in both lessors, and the rather, because the rent being some- 
 thing in retribution for the land given, the joint-tenant to whom it is 
 reserved ought to be seised of it in the same manner as he was of the 
 land demised, which was equally for the benefit of his companion and 
 himself; but where the lease is by deed indented, they are estopped 
 to claim the rent in any other manner than is reserved by the deed, 
 because the indenture is the deed of each party, and no man shall be 
 allowed to recede from or vary his own solemn act [b). 
 
 If one joint-tenant does a thing which gives to another an estate, 
 or right in the land, it binds the survivor; as if a joint-tenant in fee 
 or for life makes a lease for forty years (c). 
 
 Therefore, if two joint-tenants are in fee, and one lets his moiety 
 for years, to begin after his death, this is good, and shall bind the 
 other if he survive, because this is a present disposition, and binds the 
 lands from the time of the lease made, so that he cannot afterwards 
 avoid it. 
 
 So if one joint-tenant grant the vesture or herbage of the land for 
 years, and dies, this shall bind the survivor ; or if two joint-tenants 
 are of a water, and one grants a separate piscary for years and dies, 
 this shall bind the survivor ; because in these cases the grant of the 
 one joint-tenant gives an immediate interest in the thing itself whereof 
 they are joint-tenants [d). 
 
 If there are two joint-tenants for life, and one of them makes a 
 lease for years of his moiety, either to begin presently or after his 
 death, and dies, this lease is good and binding, against the survivor: 
 the reason whereof is that notwithstanding the lease for years, the 
 joint-tenancy in the freehold still continues, and in that they have a 
 mutual interest in each other's life, so that the estate in the whole or 
 any part is not to determine or revert to the lessor till both are dead, 
 for the life of one as well as the other was at first made the measure 
 of the estate granted out by the lessor, and therefore so long as either 
 of them lives, if the joint-tenancy continues, he is not to come into 
 
 (a) I Inst. 186. a, (J>) Bac. Alir. tit. Joint-tenants and Tenants in common. ( H. i.) 
 
 Cro. Jac. 91. ic) Com. Dig. tit. Eitates. (K. 7.) - (</) Bac. Abr. ui a,tu.
 
 88 Of Leases by Johit-TenantSy 8^c. [Chap. III. 
 
 possession (a). Now these joint-tenants having a reciprocal interest in 
 each other's life, when one of them makes a lease for years of his 
 moiety, this does not depend on its continuance for his life only, but 
 on his life, and the life of the other joint-tenant, whichsoever of them 
 ,J_ shall live longest, according to the nature and continuance of the 
 estate whereout it was derived ; and then so long as that continues, 
 so long the lease holds good, and by consequence such lessee shall 
 hold out the surviving joint-tenant and the reversioner, till the estate, 
 whereout this lease was derived, be fully determined. 
 
 But if a rent were reserved on such lease, this is determined and 
 gone by the death of the lessor: for the survivor cannot have it, be- 
 cause he comes in by title paramount to the lease, and the heirs of the 
 lessor have no title to it, because they have no reversion or interest in 
 the land [b) ; but the executors or administrators may maintain an 
 action of debt or covenant ; this remedy being now given to the re- 
 presentatives of such a lessor ; for by statute 1 1 G. 2. c. 19. s. 15. the 
 executors or administrators of tenant for life shall, on his death, 
 recover of the lessee a rateable proportion uf the rent from the last 
 day of payment to the death of such lessor. 
 
 A. and B. being joint-tenants for life, a lease made by A.y of the one 
 moiety to have and to hold after the death of B. for sixty years if J, 
 so long live, and of the other moiety to have and to hold after the 
 death of A. for sixty years if B. so long live^ and A. dies, B. surviving, 
 is bad for both moieties : for by the first words it was a good lease 
 from A. of his part, upon the contingency of his surviving B. but that 
 never happened, and as to ^.'s part, A. had no power to lease or con- 
 tract for it during the life of B. though he had happened after to sur- 
 vive him, for it was but a bare possibility, which could not be leased 
 \j or contracted for, and therefore the lease was void in the whole (r). . 
 
 So, if one joint-tenant make a lease for years, "if he and his com- ' 
 panion live so long," and afterwards surrender his moiety, and take 
 back another estate, the lease determines by the death of either of 
 them : for it hath no continuance longer than the jointure continues, 
 which is severed by the surrender, a new estate being taken {d). 
 
 If joint-tenants join in a lease, this shall be but one lease, for they 
 have but one freehold ; but if tenants in common join in a lease, this 
 shall be the lease of each for their respective parts, and the cross 
 confirmation of each for the part of the other, and no estoppel on 
 either part, because an actual interest passes from each respectively, 
 and that excludes the necessity of an estoppel, which is never ad- 
 mitted, if by any construction it can be avoided (^). 
 
 (a) Bac. Abr. u/ a/i/f. Cro. Jac. 91. (/;) Bac. Abr. i/< anff. {c) Cro. Jac. 9a. 377. 
 
 ((/) Cro. Jac. 377. {e) Com. Dig. tit. Estatci. (K. 8.) Bac. Abr. tit. Joint-Tenants, 
 
 axid T<nuiti in Common^ (H. 4.)
 
 C 89 ] 
 
 Section XX. Of Leases pursuant to Authority; wherein 
 of Leases by Attornies, Agents, ^c. 
 
 If one hath power, by virtue of a letter of attorney, to make leases 
 for years generally by indenture, the attorney ought to make them in 
 the name and style of his principal, and not in his own name ; for the 
 letter of attorney gives him no interest or estate in the lands, but only 
 an authority to supply the absence of his principal by standing in his 
 stead, which he can no otherwise do than by using his name, and 
 making them just in the same manner and style as his principal would 
 do if he were present. If he should make them in his own name, 
 though he added also " by virtue of the letter of attorney to him made 
 for that purpose," yet such leases seem to be void, because the in- 
 denture being made in his name, must pass the interest and lease from 
 him, or it can pass it from nobody : it cannot pass it from the princi- 
 pal immediately, because he is no party, and it cannot pass it from 
 the attorney at all, because he has nothing in the lands ; and then his 
 adding, *< by virtue of the letter of attorney," will not help it, because 
 that letter of attorney made over no estate or interest in the land to 
 him, and consequently he cannot, by virtue thereof, convey over any 
 to another [a). 
 
 Neither can such interest pass from the principal immediately, or 
 through the attorney (l>) j for then the same indenture must have this 
 strange effect at one and the same instant, first to draw out the 
 interest from the principal to the attorney, and from the attorney to 
 the lessee, which it certainly cannot do, and therefore all such leases 
 made in that manner, seem to be absolutely void, and not good, even 
 by estoppel against the attorney, because they pretend to be made not 
 in his own name absolutely, but in the name of another, by virtue of 
 an authority which is not pursued (c). 
 
 This case therefore of making leases by a letter of attorney, seems 
 to differ from that of a surrender of a copyhold, or of livery of seisin 
 of a freehold by letter of attorney ; for in those cases when they say, 
 ** we A. and B. as attornies of C" or, " by virtue of a letter of 
 attorney from C. of such a date, ^c." " do surrender, ^c" or 
 <* deliver to you seisin of such lands," these are good in this manner, 
 because they are only ministerial ceremonies, or transitory acts in pais, 
 the one to be done by holding the court rod, and the other by deliver- 
 ing a turf or twig ; and when they do them as attornies, or by virtue 
 of a letter of attorney from their principals, the law pronounces there- 
 upon as if they were actually done by the principal himself, and 
 carries the possession accordingly (d). 
 
 i^) Bac. Abr. tit. Leases. (I. lo.) (b) Ibid. (e) % Ld. Ray. J4i8. 
 
 {J) Bac. ou Lea. I4a>
 
 90 Of Leases pursuant lo Authority ; [Chap. III. 
 
 But in a lease for years it is quite otherwise, for the indentures or 
 deeds alone convey the interest, and are the very essence of the lease, 
 both as to the passing it out of the lessor at first, and its subsistence 
 in the lessee afterwards. The very indenture or deed itself is the con- 
 veyance, without any subsequent construction or operation of law 
 thereupon j and therefore it must be made in the name and style of 
 him who has such interest to convey, and not in the name and style 
 of the attorney, who has nothing therein ; but in the conclusion of 
 such lease it is proper to say, " in witness whereof A. B. of such a 
 C place, Iffc. in pursuance of a letter of attorney hereunto annexed, 
 
 bearing date such a day :" or if the letter of attorney be general, and 
 concern more lands than those comprised in the present lease, then to 
 say, " in pursuance of a letter of attorney, bearing date such a day, 
 ^c. a true copy whereof is hereunto annexed, hath put the hand and 
 seal of the principal," and so to write the principal's name, and 
 deliver it as the act and deed of the principal ; in which last cere- 
 mony of delivering it in the name of the principal of such attorney, 
 this exactly agrees with the ceremony of surrendering by the rod, or 
 making livery by a turf or twig, by the attorney in the name and as 
 attorney of his principal ; which proves that there is a great diversity 
 between using the name of the attorney in the making of leases, and 
 using his name in making a surrender of copyhold or livery of seisin 
 of a freehold estate. 
 
 A special agent under a limited authority cannot bind his principal 
 by an act beyond the scope of such limited authority {a). 
 
 The Court of Chancery will interfere, where an agent procures his 
 principal to grant a lease on disadvantageous terms ; it appearing that 
 the agent took an interest in the lease {b). 
 
 If the defendant insist that the lease declared on is not the plaintiff's, 
 the plaintiff may shew that it was made by A. who had authority from 
 him to execute it in his name, and the authority need not be pro- 
 duced. But the lease must be made and executed in the name of the 
 principal (c). 
 
 But in a recent case it was held, that where a party executes a deed 
 under a power of attorney, the power ought to be produced (d). 
 
 Agreements for a lease, made with an agent who acts under a 
 power of attorney, and a lease executed by such agent in pursuance 
 of the agreement, shall bind the principal (^). 
 
 "Where a man does such an act as cannot be good by any other 
 means but by virtue of his authority, it shall be intended to be an exe- 
 cution of his authority ; but where a man has an interest and an 
 authority, and docs an act without reciting his authority, it shall be 
 intended to be done by virtue of his interest (/). 
 
 (rt) 3 T. U. 575. (A) 16 Vcs. Jim. 94. (0 Bull. N. P. l?7- 
 
 {d) I lisi.. R. yo. (0 1 Bu Tail. (Jas. J41. (/) 1 Ld. Ray. 660.
 
 Sect. XX.] wherein qj^ Leases by Attornies, c^-c. 9t 
 
 A bailiff of a manor cannot, by virtue of his office, make leases for 
 years ; for his business is only to collect rents, gather the fines, look 
 after the forfeitures, and such like : but he hath no estate or interest 
 in the manor itself, and therefore cannot contract for any certain 
 interest thereout. But the lord of the manor may give him a special 
 power to make leases for years, as he may do to any stranger, and 
 then such leases, if they are pursuant to the power, and made in the 
 name of the lord, will be as good as leases by the lord himself; for the 
 bailiff, though he hath such power, cannot make them in his own 
 name {a). 
 
 But a general bailiff of a manor may make leases at will, without 
 any special authority, because, being to collect and answer the rents 
 of the manor to his lord, if he could not let leases at will, the lord 
 might sustain great prejudice by absence, sickness, or other inca- 
 pacity to make leases when any of the former leases were expired ; 
 and such leases at will are for the benefit of the lord, and can be no 
 ways prejudicial to him, because he may determine his will when he 
 thinks fit [b). 
 
 Such, however, must be taken to be strict tenancies at will ; other- 
 wise, as general tenancies at will are construed to be tenancies from 
 year to year, and half a year's notice to quit is required, before a te- 
 nant can be ousted, such tenancies might prove very prejudicial to the 
 lord's interest. 
 
 But if the bailiff of a manor hath a special power to make leases for 
 years, as he ought to make them in the name of his master, so they 
 ought to be made in writing, that the authority may appear to be 
 pursued ; a parol lease such bailiff has no power to make (c). 
 
 (a) Bac. Abr. tit. Leases. (I. 8.) (b) Ibid. (c) Bac. Abr. ut ante. 
 
 CHAPTER IV. 
 
 To ivhom Leases may be made. 
 
 EVERY person is capable of being a lessee, unless rendered in- 
 competent by some legal disability ; such as infancy, coverture, 
 insanity, ^c. 
 
 Spiritual persons. — By 43 G. 3. c. 84. (which recites the 21 if. 8. 
 c. 13.) it is made lawful for any spiritual person to take to farm to 
 himself, or to any person or persons to his use, by leuse, or otherwise, 
 for term of life, years, or at will, any messuage or dwelling-house, 
 with or without orchards, gardens, or other appurtenances, although 
 not in any city, borough, or town ; and any spiritual person having or
 
 92 To whom Leases may be made. [Chap. IV. 
 
 holding any [benefice, 46 G. 3. c. 109. /. i.] donative, perpetual 
 curacy, or parochial chapelry, not having sufiicient or convenient 
 glebe or demesne lands annexed to, or in right of, or by reason of his 
 benefice, or cure, or chapelry, or any stipendiary curate, or unbene- 
 ficed spiritual person, with the consent in writing of the bishop of 
 the diocese, may take to farm to himself, or to any person, to his use 
 for a limited term of years, any farm or farms, that may, under all 
 the circumstances, appear to such bishop proper to be taken or occu- 
 pied by such spiritual person, for the convenience of his household 
 and hospitality only, wituout being liable to any penalties, ^c. under 
 the recited Act, or any other Acts by reason thereof : provided that 
 nothing herein shall authorize any non-residence of any such spiritual 
 person as aforesaid, s. 4. 
 
 And any spiritual person or persons, by himself or themselves, or 
 any other, to his or their use, may have, hold, use, or occupy in ferm, 
 any manors, lands, ^c. demised, leased, or granted to him or them, 
 or his or their property and estate, or to take, purchase, receive, or 
 hold, as the property and estate of such spiritual person, any lease or 
 leases for life or lives, or for term or terms of years, absolute or de- 
 terminate on any life or lives, or to take any annual rent, or other 
 annual advantage or profit by occasion of any lease or ferm of any 
 manors, ^c. the property or estate of any such spiritual person or 
 persons belonging to him or them, either in his or their own right, or 
 in right of any other person, or by reason of his or their holding any 
 spiritual dignity or benefice, or so taken, purchased, ^c. as aforesaid 
 as the property or estate of such spiritual person, notwithstanding 
 the said recited or any other Act ; Provided that nothing herein con- 
 tained shall authorize any spiritual person holding any dignity, prebend, 
 benefice, donative, perpetual curacy, or parochial chapelry, or serving 
 a stipendiary curacy, to take, receive, or hold any manors, IfSc. after 
 the passing of this Act, for the purpose of occupying or to occupy 
 the same, for the cultivation thereof, or procuring profit therefrom, 
 by himself, or any bailiff or servant, to his use, unless the same shall 
 have been taken, received, or holden under a lease granted to such 
 person on or before the first day of January 1 803, or unless by the 
 consent in writing of the bishop as aforesaid, s. 5. — And by j-. 6. 
 such spiritual persons are authorized to buy or sell cattle or corn for 
 the occupation or profit of such farms, Iffc. so holden. Provided 
 that they do not buy or sell any cattle or corn in person in any market, 
 fair, or place of public sale. 
 
 And any spiritual person having any vicarage or perpetual curacy, 
 or any stipendiary curate thereof, may occupy by himself or any other 
 to his use, the impropriate parsonage, rectory, or vicarage, or any 
 part thereof, or take any profit or rent out of such farm, notwith- 
 standing the said recited or any other act. But if such impropriate
 
 Chap. IV.], To whom Leases may be made. 9S 
 
 parsonage, rectory or vicarage, or such part thereof, shall not have 
 been occupied, at any time before the passing of this Act, by the same 
 or any other such spiritual person as aforesaid, such person shall re- 
 main liable to the penalties, i^c. under the said recited or any other 
 Act, unless he shall have obtained the licence of the bishop for such 
 occupation, s. 8. 
 
 And any clergyman who shall be licensed or be exempted from re- 
 sidence under this or any other Act, may take to ferm and occupy in 
 the parish where he resides, or any adjoining parish, such lands for the 
 convenience of his household and hospitality only, as the bishop may 
 in writing allow, j-. p. 
 
 All contracts or agreements made after the passing of the Act for 
 letting houses in which any spiritual persons shall be, by order of the 
 archbishop or bishop, required to reside, shall be void ; and persons 
 holding possession after the day appointed by such order, shall forfeit 
 40/. for each day he shall so hold over, such penalty to be recoverable 
 by action of debt, ^c. in any court of record at JVestminstery or the 
 courts of great sessions in Wales, and to go to such person who shall 
 inform and sue for the same, together with costs : but in case of such 
 contracts or agreements made before the passing of the Act, no such , 
 penalty shall be incurred for three months from the service of the 
 copy of such order as aforesaid upon such occupier or at such house 
 of residence ; but after such period the person continuing to hold 
 shall forfeit 40J". for each day's continuing to hold over as aforesaid. 
 /. 34. 12. 
 
 This Act shall not deprive any spiritual persons of any privileges 
 they enjoyed under the said recited Act or otherwise. J. 43. 11. 
 
 Infants. — In debt for rent the defendant pleaded infancy at the time 
 of the lease made ; and upon demurrer, the Court held the lease void- 
 able only at his election ; for if it were for his benefit. It shall be no ^ 
 ways void, but the infant at his election may make it void, by refusing 
 and waiving the land before the rent-day comes ; in which case no ac- 
 tion of debt would lie against him j but the defendant not having so 
 done, and being of age before the rent-day due, and it not being 
 shewn to the court that in this case the rent was of greater value, the 
 plaintiff had judgment [a). 
 
 If a person jointly interested with an infant in a lease, obtain a re- 
 newal to himself only, and the lease prove beneficial, he shall be held 
 to have acted as trustee, and the infant may claim his share of the be- 
 nefit ; but if it do not prove beneficial he must take it upon himself. 
 This is the peculiar privilege of the unprotected situation of an 
 infant (^). 
 
 Where a lease to an infant however is not by deed, he will perhaps 
 be liable at all events for use and occupation of the premises in which 
 (a) BuU. N. P. 177. Cro. Jac jao. («) l Bos. & PuL 376.
 
 94 To whom Leases may be made. [Chap. IV. 
 
 he resides ; for he is liable for necessaries, under which description, 
 lodging must surely come : wherefore such case would probably be 
 held to fall within the fair liability which the law imposes on infants 
 of being bound for necessaries, which is a relative term, according to 
 their station in life (a). 
 
 Femes Covert. — A feme -covert cannot be a lessee, for her free 
 agency is so suspended during coverture, that she may plead non est 
 factum to an action on any covenant in the lease, for evidence that 
 she was covert at the time of executing the lease, will prove it to be 
 not her deed. For use and occupation of premises, her baron will 
 be liable (b). 
 
 Aliens. — With respect to aliens, the statute of 32 H. 8. c. 16. s. 13. 
 makes all leases of any dwelling-house or shop, within this realm or 
 any of the king's dominions, made to any stranger, artificer, or han- 
 dicraftsman born out of the king's obeisance, not being a denizen, 
 void and of none effect [c). This statute may be pleaded in bar to an 
 action of debt for rent, brought against an executor or administrator ; 
 but in pleading it, it seems necessary to aver that the messuage de- 
 mised was a dwelling-house or shop. A place need not be alleged 
 where he was an alien and an artificer {d). 
 
 The abovementioned statute is still in force ; but though it makes 
 leases of dwelling-houses or shops granted to any stranger artificer void, 
 yet if such artificer occupy a dwelling-house or shop under .fl« agree- 
 ment which does not amount to a lease, as if he be tenant from year 
 to year, or for a shorter time, an action for use and occupation will 
 lie against him notwithstanding the statute {e). 
 
 An alien may however take by purchase ; but then it is for the be- 
 nefit of the crown : but unless the crown interpose, he may maintain 
 an action for lands purchased by him (J). 
 
 There is no instance where a woman alien is in possession of an 
 estate, but that it must be for the benefit of the crown ; and the hus- 
 band by marrying her cannot be said to be seised of such estate (g). 
 
 But though an alien cannot, as such, take a lease of a dwelling- 
 house or shop, by reason of the statute 32 H. 8. c.i6. yet he may oc- 
 cupy a tenement of 10/. a year, and carry on his trade there like any 
 other person : and as he may do so, he has that interest which enables 
 him to gain a settlement by the provision of the legislature (/j). 
 
 All children born out of the king's dominions, whose fathers, (or 
 grandfathers by the father's side) were natural born subjects, though 
 their mothers were aliens, are now by various statutes deemed to be 
 natural born subjects themselves to all intents and purposes, unless 
 their said ancestors were attainted j or banished beyond sea for high 
 
 (<i) 8 T.R. 578. {b) Cro. Jac. 17a. (<;) I Saund. R. 56. 
 
 {J) 1 Saund. 8. n. a, (e) Ibid. n. i. (/) a Atk. 398. i Bos. & Piil. 48. 
 
 (£) 2 Atk. 398. {h) 4 Enbi's R. 107.
 
 Sect. I.] Of corporeal Hereditaments, 9,5 
 
 treason ; or were at the birth of such children in the service of a 
 prince at enmity with Great Britain. But grandchildren of such an- 
 cestors shall not be privileged in respect of the alien's duty, except 
 they be protestants, and actually reside w^ithin the realm j nor shall be 
 enabled to claim any estate or interest, unless the claim be made within 
 five years after the same shall accrue. 
 
 The issue of an English woman by an alien, born abroad, is an alien. 
 The children of aliens born in England are, generally speaking, 
 natural born subjects, and entitled to all the privileges of such (a). 
 
 Denizens. — A denizen is an alien born, but who has obtained, ept 
 donatione regisy letters patent to make him an English subject, an high 
 and incommunicable branch of the royal prerogative, A denizen is 
 a kind of middle state, between an alien and a natural born subject, 
 and partakes of both of them (b). 
 
 He may take lands by purchase or devise, which an alien may not, 
 but cannot take by inheritance. 
 
 A denizen therefore may be a lessor or lessee, for the chief inca- 
 pacity which he retains regards the defect of inheritable blood, so 
 that in other respects his situation may, in a great degree, be assimi- 
 lated to that of a bastard. He cannot however take any grant of 
 lands, ^c. from the crown j nor sit in a council, or in either house 
 of parliament (c). 
 
 Naturalization cannot be performed but by act of parliament ; for 
 by this an alien is put in the same state as if he had been born in the 
 king's ligeance ; except only that by the stat. 12 JF. 3. he is incapable, 
 as well as a denizen, of being a member of the privy council, or of 
 either house of parliament, holding offices, taking grants of the 
 crown, ^c. 
 
 (a) I Bl. Com. 373. (i) 7 Rep. ij. (c) St. i% W. 3. c. %. 
 
 CHAPTER V. 
 
 Of the subject-matter of Leases. 
 
 Section I. Of corporeal Hereditaments ; 'wliereinqfFarms^ 
 Lands, Houses, and Lodgings, 
 
 Section II. Of incorporeal Hereditaments ; xvherein of 
 Tithes, Tolls, Advowsons, Rent, ^c. 
 
 Section I. Of corporeal Hereditaments. 
 
 \ FTER such time as leases for years began to be looked upon as 
 -*^ fixed and permanent interests, and that the lessees were suffi- 
 ciently provided to defend themselves and their possessions against
 
 96 Of corporeal Hereditaments. [Chap. V, 
 
 the acts and incroachments, as well of the lessor as of strangers, men 
 found It their interest to improve and encourage this sort of property, 
 and therefore extended it to all sorts of interests and possessions what- 
 soever, being led thereto by that known rule, that -whatsoever may 
 be granted or parted with for ever, may be granted or parted nvith for a 
 time (a). 
 
 Not only lands and houses, therefore, have been let for years, but 
 also goods and chattels ; though the interest of the lessee therein differs 
 from the interest he hath in lands or houses so let for years ; for if 
 one lease for years a stock of live cattle, such lease is good, and the 
 lessee hath the use and profits of them during the term j but yet the 
 lessor hath not any reversion in them to grant over to another either 
 during the term or after, till the lessee hath re-delivered them to him, 
 as he would have of lands in case of such lease for years ; for the 
 lessor hath only a possibility of property in case they all outlive the 
 term ; for if any of them die during the term, the lessor cannot have 
 them again after the term, and during the term he hath nothing to do 
 with them, and consequently of such as die, the property rests abso- 
 lutely in the lessee {b). 
 
 So, whether they live or die, yet all the young ones coming of 
 them, as lambs, calves, ^c. belong absolutely to the lessee as profits 
 arising and severed from the principal, since otherwise the lessee 
 would pay his rent for nothing ; and therefore this differs from a lease 
 of other dead goods and chattels, for there, if any thing be added for 
 the repairing, mending, or improving thereof, the lessor shall have 
 the improvements and additions together with the principal, after the 
 lease ended, because they cannot be severed without destroying or 
 spoiling the principal. But the lessee, in such case, cannot kill, de- 
 stroy, sell, or give them away, during the term, without being subject 
 to an action of trespass, as it should seem (c). 
 
 Touching the import of the word " hereditament," Lord Kenyan ob- 
 served ld)i that it was not so strong a word as tenement ; but was 
 merely a description of the thing itself, and not the quality of it or 
 interest in it : and this accords with the difference taken between the 
 two words hareditas and hareditamentum ; for the word hareditas im- 
 ports the estate which a man has in the land ; here dit amentum the land 
 itself which may be inherited, and therefore cannot be applied to the 
 estate in the land {e). Holty C. J. however says the word " heredita- 
 ment" implies a fee (/) : which is consonant to Sir E. Cokeys exposi- 
 tion of the word, which he says is by much the largest and most com- 
 prehensive expression ; for it includes not only lands and tenements, 
 but whatsoever may be inherited, be it corporeal or incorporeal, real, 
 personal, or mixed {g). 
 
 (a) B.c.Abr.tit.Lcase$. (A.) (i) Ibid. (0 Ibid. (^ST.R.JOJ. 
 
 (<■) I Com. R. 164. (/)Holt.Z36. Of) Co. Lit. 19, »o. zBl.C0m.17. Shep.Touch.yi.
 
 Sect. I.] Of corporeal Hereditaments. 97 
 
 Corporeal hereditaments consist wholly of substantial and perma- 
 nent objects ; all which may be comprehended under the general de- 
 nomination of land only ; for iatid comprehends, in its legal significa- 
 tion, any ground, soil, or earth whatsoever j so the word " land" in- 
 cludes, not only the face of the earth, but every thing under it, or 
 over It ; and therefore, if a man grant all his lands, he grants thereby 
 all his mines of metal and other fossils, his woods, his waters, and 
 his houses, as well as his fields and meadows : not but that the parti- 
 cular names of the things are equally sufficient to pass them, except 
 in the instance of water ; by a grant of which, nothing passes but a 
 right of fishing, and to recover the land at the bottom of which, it 
 must be called so many " acres of land covered with water." But the 
 capital distinction is this : that by the name of a castle, messuage, 
 toft, croft, or the like, nothing else will pass, except what falls with 
 the utmost propriety under the term made use of, (though indeed, 
 by the name of a castle, one or more manors may be conveyed : and 
 e conversoy by the name of the manor, a castle may pass) ; but by the 
 name of land, which is mmen genendissimumy every thing terrestrial 
 will pass {a). 
 
 Leases for life, or years, or at will (now construed to be from year 
 to year), may be made of any thing corporeal or incorporeal that lieth 
 in livery or grant {b). 
 
 A man therefore may demise his farm, which may comprehend a 
 messuage and much land, meadow, pasture, wood, ^c. thereunto be- 
 longing, or therewith used : for this word doth properly signify a ca- 
 pital or principal messuage, and a great quantity of demesnes there- 
 unto appertaining {c). 
 
 So, by the name of a messuage, he may pass a house, a curtelage, 
 a garden, an orchard, a dove-house, a shop, or a mill, as parcel of the 
 same ; the like of a cottage, a toft, a chamber, a cellar, ^c. Yet 
 these may pass by their own single names also, as " of one messuage, 
 one curtelage, ^c. (d)." 
 
 If A. lets a garden ground for years, and the lessee demises part of 
 the term to an under-tenant, who builds on it, by a grant of the gar- 
 den ground the buildings thereon will pass [e). 
 
 So, a house \ and in case of a lease of a house, together with goods, 
 it is usual to make a schedule thereof and affix it to the lease, and to 
 have a covenant from the lessee to re-deliver them at the end of the 
 term j for without such covenant the lessor could have no other re- 
 medy, but trover or detinue for them after the lease ended [f). 
 
 The demise of a house ** with the appurtenances," will, it seems, 
 pass the house, with the orchards, yards, and curtelage, and garden, 
 but not the land {g) : especially if it be at a distance, though occupied 
 
 («) a Bl. Com. i8. (i) Shep. Touch. 268. (f) Iliid.93. (^ Ibid. 12. 
 
 {e) Cro. Jac. 648. (/) Bac. Abr. tit. Leases. '^A). {g) Cio. Car. 57. Cro. Jac. 526. 
 
 H
 
 !9 s Of corporeal Hereditaments. [CI i ap . V. 
 
 with the house •, but if the lesser had built a conduit, though in ano- 
 ther part of the land, yet the conduit would pass with the house, be- 
 cause it is necessary, et quasij appendant thereto {a) : yet if the lessee 
 erect such a conduit, and afterwards the lessor, during the lease, sell 
 the house to one, and the land wherein the conduit is to another, and 
 afterwards the lease determines, he who has the land wherein the. 
 conduit is may disturb the other in the using thereof, and may break 
 it, because it was not erected by one who had a permanent estate or 
 inheritance, nor made one, by the occupation and usage of them to- 
 gether, by him who had the inheritance.— So, the demise of a house, 
 ** and the appurtenances," will not pass an adjoining building not ac- 
 counted p:.rcel of the house although held with it for thirty years {b). 
 But in one case it was held that a grant from the crown, of a house 
 cum pertineniiis would pass land that was occupied with the house : in 
 this case however it should not be overlooked that the point arose on 
 a special verdict, in which the house and land were found to be all 
 one (r). 
 
 Whether the thing claimed as appurtenant be accounted parcel or 
 not, and the inteniion of the parties, are the rules by which to judge 
 in these cases [d]. 
 
 Thus, where there is a conveyance in general terms of all that acre 
 called Black- acre, every thing which belongs to Black-acre passes with 
 it ; but whether parcel or not of the thing demised is always matter 
 of evidence [e). 
 
 It may be necessary, however, to put a different construction on 
 leases made in populous cities from that on those made in the country. 
 It is known, for example, that in the metropolis different persons 
 have several freeholds over the same spot, (as in the case of the 
 Adelphi) ; dilTerent parts of the same house are let out to different 
 people ; such is the case in the inns of court. It would therefore be 
 very extraordinary to contend that if a person purchased, a set of 
 chambers, then leased them, and afterwards purchased another set 
 under them, the after-purchased chambers would pass under tji^ 
 lease (/). 
 
 So, the demise of premises in Westminster late in the occupation of 
 A. (particularly describing them), part of which was a yard, was held 
 not to pass a cellar situate under that yard, which was then occupied 
 by B. another tenant of the lessor ; for though prima facie indeed, 
 the property in the cellar would pass by the demise, yet that might be 
 regulated and explained by circumstances •, and, as the construction 
 of all deeds must be made with a reference to their subject-matter, it 
 is right in such cases to let in evidence to shew the state and condition 
 of the property at the time when the lease was granted (jT). 
 
 (a) Cro. Jac. iir. {b) Cio, C.-.r. 17. (c) Ibid. 169. (a-) JbiJ. 17. 
 
 (0 1 r. R. 704. (/) Ibul. joy
 
 .Sect. II.] Of incorporeal llcred'ilamenh. <?f) 
 
 The respective apartments of a house may be, and frequently arc, 
 let to several and distinct individuals; which tenancies are termed 
 lodgings, and the tenants thereof lodgers, respecting which see more 
 **~ at large hereafter. 
 
 Section II. Of incorporeal Hercditamcnls. 
 
 An incorporeal hereditament is a right issuing out of a thi.ng cor- 
 porate, (whether real or personal) or concerning, or annexed to, or 
 «'■'•' exercisable within the same. Incorporeal hereditaments are principally 
 these, viz. advowsons, tithes, tolls, estovers, commons, ways, ofBces, 
 franchises, corrodies or pensions, annuities, and rents [a). 
 
 Incorporeal hereditaments are, generally speaking, capable of being 
 demised, and such demise must be by deed, for they lie in grant and 
 not livery ; so things incorporeal may be granted by copy of court- 
 roll {b). 
 
 Advoivsons . — An advowson is a valuable right, and properly the ob- 
 ject of sale ; it is therefore real assets in the hands of the heir : but 
 as the exercise of this right is a publick trust, it cannot, it ought not, 
 to produce any profit. — Therefore, though an advowson may be granted, 
 3^ either by a grant by deed or will, of the manor, ^c. to which it is 
 ffij- appendant, without any exception of the advowson, in which case it 
 -''will pass, (for it is parcel of the manor, except in the case of the 
 king) or by grant of the advowson alone, and such grant may be ei- 
 *-* ther in fee, or for the right of one or more turns, or for as many as 
 T shall happen within a time limited : yet it cannot properly be the sub- 
 " ject of a demise, for as no profit is permitted to accrue, no rent can 
 • be reserved, nor any services performed to the proprietor. 
 
 This, however, does not seem to be quite correct : for there is no 
 doubt, (says Mr. Wooddeson,) but that the lessee of tithes, an advow- 
 soTif or any incorporeal hereditament, would be liable to an action of 
 debt for the rent agreed upon [c). So where lessee for years of an 
 advovi'son was presented to the advowson by the lessor, it was ad- 
 judged to be a surrender of his term (^).— Thus it seems clear that 
 an advowson may be the subject of a demise : and though L. C. Talbot 
 doubted {e) whether the word " tenements," which had been said to 
 carry an advowson in a will, extended to incorporeal inheritances, 
 yet it appears to be the better opinion, that as lands and houses are 
 tenements, so is an advowson a tenement (^f). 
 
 Tithes. — ^Tithes have been defined to be, a tenth part of the increase, 
 yearly arising and renewing from the profits of lands, the stock upon 
 lands, and the personal industry of the inhabitants ; and are an eccle- 
 
 (a) Co. Lit. 19, 20. {b) I T. R. 360. Willes, ^z^. 1 Inst. 9. 
 
 ic) 2 Woodd. 69. (d) Cro, Jac. 84. (^) Cm. temp. Talbot, 144. 
 
 (/) Co, Lit, 19, ?o. a Bl. Com. 17. 3 P. Wms. 461. 
 
 H2
 
 100 Oj incorporeal Hereditaments. [Chap. V. 
 
 siastical inheritance, collateral to the land, and properly due to an ec- 
 clesiastical person. 
 
 A parson of a church may grant his tithes for years, and yet they 
 are not in him [a). 
 
 By the statute 5 G. 3. c. 17. entitled " An act to confirm all leases 
 already made by archbishops and bishops, and other ecclesiastical per- 
 sons, of tithes and other incorporeal hereditaments, for one, two, or 
 tliree life or lives, or twenty-one years 5 and to enable them to grant 
 such leases, and to bring actions of debt for the recovery of rents re- 
 served and in arrear on leases for life or lives," any other person or 
 persons, having any spiritual or ecclesiastical promotions, are enabled 
 to grant such leases of tithes, tolls, or other incorporeal inheritances, 
 «* which shall be as good and effectual in law against such archbishop, 
 bishop, masters and fellows, or other heads and members of colleges 
 or halls, deans and chapters, precentors, prebendaries, masters and 
 guardians of hospitals, and other persons so granting the same, and 
 their successors, and every of them, to all intents and purposes, as 
 any lease or leases already made, or to be made by any such archbi- 
 shop, l^cJ' by virtue of the stat. 32 H. 8. c. 28. or any other statute 
 then in being ; and an action of debt may be brought by such lessors 
 for rent in arrear, as in the case of any other landlord or lessor. 
 
 Tolls. — ^Tolls also may be let or mortgaged {b). ,-- , 
 
 Estovers. — So, estovers (of which more hereafter) may be leased : 
 the grantee, therefore, of house-bote, or hay-bote, may let it to 
 another {c). 
 
 Commons. — With respect to commons, the stat. 13 G. 3. r. 81. /. 15. 
 empowers the lord of any manor with the consent of three-fourths of 
 the persons having right of common upon the wastes and commons 
 within the manor, at any time to demise or lease, for any term or 
 number of years, not exceeding four years, any part of such wastes 
 and commons, not exceeding a twelfth part thereof, for the best and 
 most improved yearly rent that can by public auction be got for the 
 same ; and directs that the clear net-rents shall be applied to drain, 
 fence, and otherwise improve the residue of the wastes and commons, 
 
 A lessee for lives cannot acquire a fee by encroachment upon the 
 waste adjoining the land demised, though accompanied by thirty 
 years' uninterrupted possession, but it shall be intended that he in- 
 closed the waste in right of the demised premises, for the benefit of 
 the lessor after the term expired ; more especially, if his lessor be 
 seised in fee of the waste. Acts exercised in assertion of right upon 
 one part of a waste arc admissible in evidence against occupiers of 
 another part of the same waste (J). 
 
 Ways. — Ways are, or a right of way is, demiseable with the land \ 
 
 (a) Shep. Toufh. 141. V') » T. R. 169. (c) Shep. Tojch. 2JZ. Bac. Abr. tit. 
 
 Lra&es. (A.) {d) i 'J'aiiiit. 208.
 
 Sect. II.3 Of incorporeal Hereditaments. • loi 
 
 for the grantee or lessee shall have all the ways, easements, Sifc. which 
 the grantor or lessor had {a). 
 
 Therefore, where one as trustee conveys land to another, to which 
 there is no access but over the trustee's land, a right of way passes of 
 necessity, as incidental to the grant (b). 
 
 If a man, upon a lease for years, reserve a way to liimself through 
 the house of the lessee to a back-house, he cannot use it but at sea- 
 sonable times and upon request (r). 
 
 Offices, — An office may be granted by way of lease, provided no in- 
 convenience or injury to the public is likely to ensue ; and it may be 
 granted in fee tail, for life, or years, or at will i^d). 
 
 But an office to which a trust is annexed, or which concerns the 
 administration of justice, cannot be granted for years, for then it 
 would go to the executor, or administrator, or ordinary, and might 
 be seised upon outlawry, ^c. {e). Therefore the office of marshal of 
 the King's Bench cannot be granted for years, because it is an office 
 of trust and daily attendance ; and such a termor for years may die 
 intestate, and then it would be in suspence until administration is 
 committed, which is the act of another court [f). 
 
 It hath however been held, that a lease thereof for years during 
 the life of the grantee is good ; for hereby the danger of the office 
 going to executors is avoided. It appears also, that the dean and 
 chapter of Westminster made a lease for years of the Gate-house prison 
 [since pulled down] and the lessee had committed several offences 
 which amounted to a forfeiture, for which the office was seised : but 
 no objection was made to its being let for years. There seems to be 
 a diffisrence, however, between the two cases : the first, namely, that 
 of the marshal of the King's Bench, (since regulated by statute 
 13 G. 2. c. 17.) was a grant from the crown, in whom all offices, in 
 relation to the administration of justice, are originally and inherently 
 lodged, and therefore for the crown to grant out such office for years 
 may be liable to the objections before mentioned ; but in the latter 
 case, namely, that of the Gate-house prison, the dean and chapter are 
 the immediate grantees of the crown, and they have the office to 
 them and their successors for ever in fee, and are perpetual gaolers 
 themselves, and answerable to the crown, notwithstanding any lease 
 over to another ; and therefore they alv/ays take security of such un- 
 der-lessee for their own indemnity (^1. 
 
 Such offices as do not concern the administration of justice, but only 
 require skill and diligence, may be granted for years, because they may 
 be executed by deputies, without any inconvenience to the public. 
 
 Where one made a grant for years of the stewardship of a court- 
 
 (a) 6 Mod. 3, 149. Cro. Jac. 170, 190. {b) 8 T. R. 50,56- (0 1 Vent. 48. 
 
 (rf) Com. Dig. tit. Officer. (B. 7.) &c. (*) Ibid. (/) 3 Mod. 145. 
 
 {£) 6 Mod. 57. Bac. Abr. tit. Leases. (A.) 
 
 6
 
 102 0/ incorporeal Heredilaments. [Chap. V. 
 
 leet and court-baron, it was held void as to the court-Ieet, being a 
 judicial office, but good as to the courr-baron, being only ministerial, 
 and the suitors judges thereof; but the grant appearing afterwards to 
 be for years determinable upon the death of the lessee, it was held 
 good for both, because there was no danger of its coming to exe'cUi 
 tors or adn^inistrators. u'^uw 
 
 An oflice cannot be demised by parol [a). ftlDSq 
 
 Dignities and lionours cannot be granted for years. ^ ^^^ 
 
 Fra;ichises. — Francliises may be demised, except indeed in some few-' 
 particular cases, as where the franchise is a personal immunity, ^c.- 
 Thus a fair or market, either with or without the right of taking toll, ' 
 either there or at any other public places, as at bridges, wharfs, or the 
 like, may be demised. Every fair is a market, but not e contra {b). 
 
 Corrodies and Pcnsiofis. — Touching corrodies and pensions jth^ 
 great endov.-ments of lands, rents, and revenues, given to the church- 
 men by the laity, were for the maintenance of hospitality and v.^orks 
 of charity: the founders and benefactors thereby obtained a right of 
 corrody or entertainment at such places, in nature of free quarter (r). 
 A corrody therefore is a right of sustenance, or to receive certain al- 
 lotments of food for one's maintenance ; in lieu of which, especially 
 when due from ecclesiastical persons, a pension or sum of money is 
 sometimes substituted ; and these are chargeable on the person of the 
 owner of the inheritance in respect thereof. It is said, that a ct^ir'^' 
 rcdy may be due to a common person by grant from one to another.' 
 A corrody is either certain or uncertain, and may be not only for lifd 
 or years, but in fee. If one hath a corrody for life, he may let it''td' 
 another, or to the grantor himself (J). 
 
 Annuities. — An annuity is an annual sum of money granted to 
 another in fee, for life or years, which charges the person of the 
 grantor only; or it may be due by prescription, which always implies 
 a grant (i?). Such annuity may be dejnised by way of assignment (y). 
 
 Rents. — Rents form the last kind of incorporeal hereditaments, and 
 may be the subject of a lease. 
 
 The word rcnfj or render, reditus, signifies a compensation or re- 
 turn, it being in the nature of an acknowledgment given for the pos- 
 session of some corporeal inheritance (g). 
 
 There are at common law three manner of rents: rent-servide, 
 rent-charge, and rent-seek. Rtnt-service is so called because it hiath 
 some corporal service incident to it, as at the least fealty : for if a tenant 
 hold his land by fealty, and ten shillings rent, or by service of plough- 
 injg the lord's land and five shillings rent, these pecuniary rents 
 being connected with personal services, are therefore called rent- 
 
 (d) 2 Ltl. Raym. 853. Bac. Abr. tit. Leases (A.) (i) 2 Inst. 406, 221. (r) 2 Bl. Com. 
 /ji. Bac. on V.ng. iinv. b. i. c. Ixvi. (d) New 'Jerms of Law. B.ic. Abr. tit. Lenses. (A.) 
 (r) Co. Lit. I'H-'J- Com. Dig. tit. Aiiiuiity. (A. I.) (/) IhiJ, (Iv.) (^r) a 13). Com. .11.
 
 Sect. II. j Of incorporeal lleredilamenls. ]03 
 
 service; and for these, in case they be behind or in arrcar at the day 
 appointed, the lord may distrain of common right, without reserving 
 any special power of distress ; provided he hath in himself the rever- 
 sion, or future estate of the lands and tenements, after the lease or 
 particular estate of the lessee or grantee is expired. A rent-charge is 
 where the owner of the rent hath no future interest, or reversion ex- 
 pectant in the land : as where a man by deed maketh over to others 
 his whole estate in fee-simple, with a certain rent payable thereout, 
 and adds to the deed a covenant or clause of distress, that if the rent 
 be in arrear, or behind, it shall be lawful to distrain for the same : in 
 this case the land is liable to the distress, not of common right, but 
 by virtue of the clause in the deed j and therefore it is called a rent- 
 charge, because in this manner the land is charged with a distress for A — 
 the payment of it [a). — A clear rent-charge must be free from the 
 land-tax {b). 
 
 If a rent-charge be granted out of a lease for years, it hath been 
 adjudged that the grantee may bring annuity when the lease is 
 ended {c). 
 
 RenUsech or barren renty idem est quod reditus s'lccusy is in effect 
 nothing more than a rent reserved by deed, but without any clause of 
 distress {d). 
 
 There are also other species of rents, which are reducible to the 
 following three. Rents of assize^ which are the certain established 
 rents of the freeholders and ancient copyholders of a manor, and 
 which cannot be departed from : those of the freeholders are fre- 
 quently called chief-rents, reditus capitalesy and both sorts are in- 
 differently denominated quit-rents, quieti reditus ; because thereby the 
 tenant goes quit and free of all other services. 
 
 Rack-rent is only a rent of the full value of the tenement or near 
 
 A fee-farm rent \s z rent-charge or rent-service, which is reserved 
 on a grant in fee ; the name is founded on the perpetuity of the rent 
 or service, not on the quantum ( /). 
 
 This point however is questioned, though as Mr. Hargrove's seems 
 to us to be the better opinion, we have adopted it. Vide Doug. 605. 
 
 A grant of lands therefore reserving so considerable a rent, was 
 indeed only letting lands to farm in fee-simple instead of the usual 
 terms for life or years (^). Since the statute 01 quia avptores, IVestm. 
 18 Ed. I. St. I. it seems such grants by any subject cannot be made, 
 because the grantor parting with the fee is by operation of that statute 
 without any reversion, and without a reversion there cannot be a rent- 
 service (h). 
 
 (a) z Bl. Com. 41. (Ji) Doug. 628. (^) Mooi. c. 4iC. 
 
 {d) 2 Bl. Com. 41. (e) Haig. n. 5. Co- Lit. 144. (/) LI, Cum. ui an'.e. 
 
 (jt) 2 Bl. Com. 43. {h) Haigrave^ e. .'../)..•.
 
 104 Of Terms for Life, and how created. fChap. VL 
 
 If the reservation be of corn, as in the case of an hospital lenevved 
 lease, where the reddendum was " so many quarters of corn," it will 
 be understood to mean legal quarters, reckoning the bushel at eight 
 gallons j although the old leases before the statute 22 and 23 Car. 2. 
 c. 12. contained the same reddendum^ and although till lately the lessees 
 paid by composition, reckoning the bushel at nine gallons {a). 
 
 These are the general divisions of rent ; and the difference between 
 them (in respect of the remedy for recovering them) is now totally 
 abolished by stat. 4 G. 2. c. 28.; as all persons may have the like 
 t. remedy by distress for rents-seek, rents of assise, and chief-rents, that 
 is for such as had been paid for three years, within twenty years 
 before the passing that act, or for such as have been since created, as 
 in case of rents reserved upon lease {U). 
 
 Statute \i C 1, c. 24. s. 5. provides that nothing therein contained 
 shall be construed to take away any rents certain, or other service, 
 incident or belonging to tenure in common socage, or the fealty and 
 distress incident thereunto -, and that such relief shall be paid in re- 
 spect of such rents as is paid in case of a death of a tenant in com- 
 mon socage. 
 
 Occasionally also, acts of parliament empower the officers of govern- 
 ment to grant leases of the duties thereby imposed ; as the act 12 C. 2. 
 c. 23. s. 27. respecting the duties of excise upon ale, beer, i^c. and 
 also c. 25. J-. 3. of the same reign, <^c. 
 
 00 6 T. R. r:,'i. {b) 3 Bl. Com. 43. 
 
 CHAPTER VL 
 
 For zchat Term Leases may be made. 
 Section I. Of Terms for Life^ and how created. 
 
 Section II. Of Terms for Years, absobitely or on con- 
 dition, wherein of the co7mnencenient, duration, and ter- 
 mination of them ; and of the surrender and renewal of 
 Leases. 
 
 Section I. Of Terms for Life, and how created, 
 
 TIERE a lease is granted for life, it confers a freehold interest 
 in land ; the duration of which is confined to the life or lives 
 of some particular person or persons, or to the happening, or not 
 happening, of some uncertain event [a). But a demise for the term 
 
 (./) t'nij. Dig. liitaie loi J.ilc. 
 
 w
 
 Sect. I.] Of Terms for Life ^ and how created. 105 
 
 of a life or lives, requires to be perfected by livery of seisin ; and 
 the assignments of leases for lives are commonly made by lease and 
 release. 
 
 If lands are demised or granted to a man generally, without de- 
 noting the quantity of estate intended to be given, and livery be made 
 upon it, such demise or grant to another generally, by tenant in fee, 
 shall be an estate to the lessee for his own life ; for his life is greater 
 in consideration of law than another's life ; and therefore if he leases 
 to him in remainder or reversion for his life, he shall have it after the 
 death of the lessee, for it was not a surrender : but if it be by tenant 
 in tail, it shall be for the life of the lessor : for that is all he can law- 
 fully grant, unless he lease according to the stat. 32 H. 8. c. 28 {a). 
 
 So, a demise to another for a time indeterminate, passes for life, if 
 livery be made [b). 
 
 Or a demise of things which lie in grant, without livery (c). 
 
 Estates for life granted absolutely, will, generally speaking, endure 
 as long as the life for which they were granted {d). 
 
 But there are some estates for life which may determine upon 
 future contingencies before the life for which they are granted expires ; 
 as where a ^ease is to a man quamdiu se bene gesserit j to a woman 
 durante vtduitate or dum sola; to husband and wife during coverture; 
 to A. as long as he inhabits, or pays such rent, or till he be preferred 
 to such a benefice, or till out of the profits he has paid 100/. or other 
 sum, or during his exile, if he be absent from his country volun- 
 tarily, and not by edict. In these and such like cases the duration of 
 the estate depends merely upon the condition {e). 
 
 So, if the king grants an office at will, and a rent for it for his life, 
 the grantee has an estate for life in the rent, though it determines 
 with his office (y). 
 
 But if one make a lease for life, and say that if the lessee within 
 one year pay not 20^. he shall have but a term for two years; by this 
 if he do not pay the money, he has only a lease for two years, even 
 though livery of seisin be made upon it (^). 
 
 But where a person devises lands to his executors for payment of 
 his debts and until his debts are paid, although the determination of 
 such estate be uncertain, yet it is not an estate for life ; for if it 
 were, it must determine at the death of the executors, which would 
 frustrate the intention of the testator, for all the debts might not be 
 then paid : the law therefore gives the executors a chattel interest, 
 which will go to their executors, and continue until all the testator's 
 debts are paid, and the freehold and inheritance will descend in ih? 
 
 (a) Com. Dig. tit. Estates. (E. i.) and Co. Lit. 412, S:c. {b) Ibid. 
 
 (0 Iliid. {d) % Bl. Com. I2X. {e) Co. Lit. ut antt. 
 
 (/) Ibid. (£) Co. Lit. %1-B.
 
 106 Of Tertns for Life, and how created. [Chap. Vf. 
 
 mean time to the heir. But if a limitation of this kind were made 
 by deed, it is a freehold conditional (a). 
 
 Of Livery of Seisin. — Livery by the common law, is necessary to 
 be made upon every grant of an estate of freehold in hereditaments 
 corporeal, whether of inheritance or for life only. 
 
 Livery of seisin is either in deed or in law. 
 
 Livery in deed is thus performed : the lessor, or his attorney, to- 
 gether with the lessee, or his attorney, (for this may as effectually be 
 done by deputy or attorney, as by the principals themselves in per- 
 son,) come to the land, or to the house, and there, in the presence 
 of witnesses, declare the contents of the lease on which livery is to 
 be made. Then the lessor, if it be of land, delivers to the lessee, 
 all other persons being out of the ground, a clod, or turf, or a twig, 
 or bough, there growing, with words to this effect, " I deliver these 
 to you in the name of seisin of all the lands and tenements contained 
 in this deed." But if it be of a house, the lessor must take the ring, 
 or latch of the door, the house being quite empty, and deliver it to 
 the lessee In the same form, as in the case of land : and then the 
 lessee must enter alone, and shut to the door, and then open it, and 
 let in the others. If the conveyance be of divers lands, lying scat- 
 tered in one and the same county, and then in the lessor's posses- 
 sion, livery of seisin of any parcel in the name of the residue is suffi- 
 cient for all J but if they be in several counties, there must be as 
 many liveries as there are counties ; for if the title to these lands 
 comes to be disputed, there must be as many trials as there are coun- 
 ties, and the jury of one county are no judges of the notoriety of a 
 fact in another. Also, if the lands be out on lease, though all lie in 
 the same county, there must be as many liveries as there are tenants ; 
 because no livery can be made in this case, but by the consent of the 
 particular tenant, and the consent of one will not bind the rest. — In 
 all these cases, it is prudent and usual to endorse the Hvery of seisin 
 on the back of the deed, specifying the manner, place, and time of 
 making it, together with the names of the witnesses {b). 
 
 Livery in laiv is where the same is not made on the land, but in 
 sight of it only ; the lessor saying to the lessee, *' I demise, grant, 
 and to farm let, such land unto you, enter and take possession (-£■)." 
 Here if the lessee enter during the life of the lessor, it is a good 
 livery, but not otherwise ; unless indeed he dare not enter through 
 fear of his life, or bodily harm ; and then his continual claim made 
 yearly in due form of law, as near as possible to the lands, will 
 suffice without entry ; and such continual claim by tenant for life is 
 sufficient for him in reversion or remainder. This livery in law can- 
 
 (/i) CrulK's Dig. lit.3. ?. 8. i Inst. 42. a. 8 Rep. 8i. b.96. a. Cm. Eli?.. 316. i P.Wrns.J09. 
 (i) aBl. Com. 315. (*) Ibid. 316.
 
 Sect. I.] Of Terms for Life, and how created. 107 
 
 not however be given or received by attorney, but only by the parties 
 themselves [a). 
 
 If a lease be to A. and B. livery to one of the lessees is suffi- 
 cient {b), 
 
 A lease for life of any thing whatsoever, whether it lie in livery or 
 in grant, if it be in esse before, cannot begin at a day to come ; for 
 an estate of freehold cannot commence in futuro (c). 
 
 Therefore if a lease be made habendum from Michaelmas next, or 
 after the death of the lessor, or after the death of 'J. S. to the lessee 
 for life, this lease would not be good (^d). 
 
 So also where one doth make a lease of land to another for years, 
 the remainder to a stranger for life, in this case livery of seisin must 
 be had and made to the lessee for years, or else nothing will pass to 
 him in remainder, and yet the lease for years will be good (<?). For if 
 a man leases to A. for years, remainder to B. in fee, in tail, or for 
 life, he must make livery to A. {/). 
 
 But livery of seisin is not needful or requisite to be had and made 
 in cases where such estate for life is made or granted of any lands 
 by matter of record ; nor where such estate is created by way of cove- 
 nant and raising of use, or of exchange, or endowment ; nor where 
 such estate is passed or granted by way of surrender, devise, release, 
 or confirmation ; or by way of increase or executory grant ; as when 
 the fee-simple is granted to the lessee for life or years in possession (g). 
 
 Neither is it requisite, or can be made, where any incorporeal 
 licreditaments are granted for life. Nor is it requisite in some 
 cases, where an estate of freehold is made of a corporeal thing; as if 
 a house or land belong to an office, and the office be granted by deed, 
 the house or land passes as incident thereunto. So if a house or 
 chamber belong to a corrody (^). 
 
 Neither is it needful, where one doth grant to me and my heirs all 
 the trees growing on his ground ; for these will pass without livery 
 of seisin at all («"). 
 
 Though, if a man make leases for three lives, there must be livery ; 
 yet if tenant for life with power to make leases for three lives, makes 
 a lease accordingly, livery is not necessary (^). 
 
 Tenant for life or cestuique vie beyond sea^ ^c. — By the 19 Car. 1. c. 6, 
 Whereas divers lords of manors and others have used to grant estates 
 by copy of court-roll for one, two, or more lives, according to the 
 custom of their several manors, and have also granted estates by lease 
 for one or more life or lives, or else for years determinable upon one 
 or more life or lives ; and it hath often happened that such person or 
 
 {a) Gilb. L. of Ten. {b) Com. Dig. tit. FeofFment. (P. i.) («) Shep. Touch. 
 
 %-jZ. a Bl. Com. 144. 314. {d) Shep. Touch. 272. Cowp- 725. («) Ibid, aia 
 
 (/) Com. Dig. tit. Feoffment. (B. i.) {£) Shep. Touch. %\o. iji) Ibid. 
 
 (0 Ibid. ill. (^) I Ld. Ray. i66.
 
 108r Of Terms for Life, and how created, [Chap. VI. 
 
 persons for whose life or lives such estates have been granted, have 
 gone beyond the seas, or so absented themselves for many years, that 
 the lessors and reversioners cannot find out whether they be alive or 
 dead, by reason whereof such lessors and reversioners have been held 
 out of possession for many years, after all the lives upon which such 
 estates depended are dead, in regard that the lessors and reversioners, 
 in actions for recovery of their tenements, have been put to prove the 
 death of their tenants when it was almost impossible to discover the 
 same •, for remedy thereof it is enacted, that if such person or persons 
 for whose life or lives such estates have been or shall be granted, shall 
 remain beyond the seas, or elsewhere absent themselves in this realm 
 for seven years together, and no sufficient proof be made of their lives 
 in any action for recovery of such tenements by the lessors or rever- 
 sioners, in such case they shall be accounted dead, and the judges 
 shall direct the jury to give their verdict accordingly, s. i, 2. 
 
 Provided, that if any shall be evicted out of any lands or tenements 
 by virtue of this Act, and afterwards such person or persons upon 
 whose life or lives such estate or estates depend, shall return again 
 from beyond seas, or shall on proof in such action as aforesaid be 
 made appear to be living or to have been living at the time of the 
 eviction ; that then and from thenceforth the tenant or lessee who 
 was ousted of the same, his or their executors, administrators, or 
 assigns, may re-enter, re-possess, have, hold, and enjoy the said 
 lands or tenements in his or their former estate, during the life or 
 lives, or for so long term as the said person or persons upon whose 
 life or lives the said estate or estates depend, shall be living, and shall, 
 upon action brought by them against the lessors, reversioners, tenants 
 in possession, or other persons respectively, which since the said 
 eviction received the profits of the said lands or tenements, recover 
 for damages the full profits thereof, with lawful interest from the time 
 he or they were ousted and kept out of the same lands or tenements ', 
 and this as well in the case where the said person or persons upon 
 whose life or lives such estate or estates did depend are or shall be 
 dead at the time of bringing such action; as if they were then 
 living, s. 5. 
 
 And by the 6 yjfin. c. 18. any person who hath or shall have any 
 claim to any remainder, reversion or expectancy, in or to any estate 
 after the death of any person within age, married woman, or other 
 person whatsoever, upon affidavit in the court of Chancery by the 
 claimants of their title, and that they have cause to believe that such 
 party is dead, and that his or her death is concealed by such guardian, 
 trustee, husband, or any other person, may once a year, if the party 
 aggrieved think fit, move the Lord Chancellor, Keeper, or Commis- 
 sioners of the Great Seal to order, and they shall order such guardian, 
 trustee, husband, or other person, suspected to conceal such person,
 
 Sect. I.] Of Terms for Life^ and how created. lt)9 
 
 at such time and place as the Court shall direct, on personal or other 
 due service of such order, to produce and shew to such person or 
 persons (not exceeding two,) in such order named by the parties pro- 
 secuting the same, such minor, married woman, or other persons 
 aforesaid : and if such guardian, Isfc. shall neglect or refuse to pro- 
 duce and shew such infant, is'c. on whose life such estate doth de- 
 pend, according to the said order, then the Court is required to order 
 such guardian, ^6-. to produce such minor, tsfc. in Court or before 
 commissioners by the Court appointed, at such time and place as the 
 Court shall direct, two of which commissioners to be nominated by 
 the party prosecuting such order at their costs and charges ; and if 
 such guardian, is'c. neglect or refuse to produce such infant, ^c. in 
 Court or before such commissioners, whereof return shall be made by 
 such commissioners, and be filed in the petty bag office, in either of 
 the said cases the said minor, ^c. shall be taken to be dead, and it 
 shall be lawful for any person claiming any right, title, or interest, in 
 remainder, or reversion, or otherwise, after the death of such infant, 
 ^c. to enter upon such lands, ^c. as if such infant, ^c. were actually 
 dead. /. i. 
 
 And if it shall appear to the said Court by affidavit that such minor, 
 iffc. for whose life such estate is holden, is or lately was at some cer- 
 tain place beyond the seas in such affidavit to be mentioned, the party 
 prosecuting such order may, at their costs and charges, send over one 
 or both the persons appointed by the said order, to view such minor, 
 fcff. and in case such guardian, iffc. shall refuse or neglect to produce 
 or procure to be produced to such person or persons, a personal view 
 of such infant, ^c. then such person or persons are required to make 
 (3 return thereof to the Court, to be filed in the petty bag office, and 
 thereupon such minor, ^c. shall be taken to be dead ; and any person 
 claiming any right, iffc. after the death of such Infant, i^c. may enter 
 upon such lands, iifc. as if such infant were actually dead. /. 2. 
 
 Provided, that if it shall afterwards appear, upon proof in any 
 action brought, that such infant, isfc. for whose Ufe any such estate 
 is holden, were alive at the time of such order made, that then it 
 shall be lawful for such infant, married woman, or other person 
 having any estate or interest, determinable upon such life, to re-enter 
 upon the said lands, i^c. and for such.infant, married woman, or other 
 person, having any estate or interest, determinable upon such life, 
 their executors, administrators or assigns, to maintain an action against 
 those who since the said order received the profits of such lands, iffc. 
 or their executors or administrators, and therein to recover full 
 damages for the profits so received from the time that such infant, tfc. 
 were ousted of possession, j. 3. 
 
 Provided always, that if such guardian, trustee, husband, or other 
 person, holding or having any estate or interest determinable upon the
 
 110 Of Tenns for Years ^ ahsoluieljj^ [Chap. V?. 
 
 life or lives of any other person or persons, shall by affidavit or other- 
 wise to the satisfaction of the Court, make appear that they have used 
 their utmost endeavours to procure such infant, ^c. to appear in the 
 said Court or elsewhere, according to the order of the said Court, and 
 that they cannot procure or compel such infant, ^c so to appear, and 
 that such infant, ^c. is, are, or were living at the time of such return 
 made and filed as aforesaid, then it shall be lawful for such person or 
 persons to continue in possession of such estate, and receive the rents 
 and profits thereof during the infancy of such infant, and the life or 
 lives of such married woman or other person or persons, on whose 
 life or lives such estate or interest depends, as fully as they might have 
 done if the Act had not been made. s. 4. 
 
 ; And every person who, as guardian or trustee for any infant, and 
 every husband seised in right of his wife only, and every other person 
 having any estate determinable upon any life or lives, who after the 
 determination of such particular interests, without the express consent 
 of the next immediately entitled, shall hold over and continue in pos- 
 session of any manors, messuages, lands, tenements, or heredita- 
 ?ments, shall be adjudged trespassers: and the party entitled and their 
 executors and administrators, may recover in damages against every 
 such person or persons so holding over and their executors and ad- 
 ministrators, the full value of the profits received during such wrong- 
 ful possession, s. 5. 
 
 Section II. Of Terms for Years, absolutely, or on con- 
 dition ; ivherein of the commencement, duration, and ter- 
 mination of them : and of the surrender and renewal of 
 Leases, 
 
 Tenant for term of years shall be, where a man lets lands, tene- 
 ments, or hereditaments to another for a term of certain years ; and 
 every estate which must expire at a period certain and prefixed, by 
 whatever words created, is an estate for years [a). 
 
 Therefore this estate is frequently called a term, termhms, because 
 its duration or continuance is bounded, limited, and determined (h). 
 It is properly called a term of years and the lease is made for ten, a 
 hundred, a thousand years, and the like, as the lessor and lessee agree; 
 for the word " term" doth not only signify the limits and limitation of 
 time, but also the estate and interest that doth pass for that time(c). 
 
 Such terms are frequently created for particular purposes, as to raise 
 portions, b'V, and when the purpose is answered, they attend the in- 
 heritance ; so, they are created, as has been before mentioned, by way 
 
 (ff) Com. Dig. tit. Estate. (C i.) Lit. 58. {h) a Bl. Com. I43- 
 
 {() Sliep. Touch, c. 14. 267.
 
 Sect. II.] or on Condition, S^c, 111 
 
 of mortgage {a). Lands are often conveyed in the nature of a lease 
 for long terms, as five hundred years, &c. in order to raise portions, 
 •and for other purposes, in family settlements, and such are not ac- 
 counted leases, but terms to attend the inheritance ; no man has a 
 
 , lease, for example, of two thousand years, as a lease, but as a term 
 -to attend the inheritance {b). Half the titles in the kingdom are so (c). 
 
 ■^, - An estate for a thousand years is only a chattel, and reckoned part 
 
 ,,j9f the personal estate (d). 
 
 Therefore, if a lease be devised to one, and the heirs male of his 
 body, yet his executors shall have it : for a term is but a chattel, 
 which cannot be entailed, and such devisee may well alien the term 
 to whom he pleases [e). 
 
 .«^. If, however, it be limited to attend the inheritance, it may be en- 
 tailed ; though the entail of the inheritance and of the term be by 
 diiFerent clauses, or deeds executed at different times (/"). 
 r,^ Commencement of a Lease for Tears. — With respect to the commence- 
 
 .; 4Beut of a lease for years, as it is a mere chattel, it may be made to 
 
 , (Commence either in prtesenti or infuturo: according to the agreement 
 pf the parties; and the lease that is to commence in futuro, is called 
 interesse termini, or future interest (^). — A lease for years, therefore, 
 may begin at a day to come, as at Michaelmas next, or for three or 
 ten years after, or after the death of the lessor, or of J. S. and is as 
 good as where it doth begin presently (/j). 
 
 So a lease to commence adfestum Annunciationis, after the determi- 
 nation of a former lease, is as good as if it had been afestoy ^c. (/). 
 
 A lease to commence after the determination of a prior lease, shall 
 - begin presently, if the prior lease was void at law [k). 
 
 So a lease intended to commence in futuro, which misrecites the 
 prior lease on which it depends in a material point, shall begin im- 
 mediately (/). 
 
 This rule, that if the former lease be misrecited in the date, t^c. and 
 a new lease made, to begin after the expiration of the said recited lease, 
 that such new lease shall begin presently, holds as well in the lease 
 itself, as where the jury find an indenture of lease, whereby it is re- 
 cited, that the lessor made such former lease of such date and under 
 such rent without finding it in fact, but only by way of recital in the 
 deed, such second lease shall in construction of law be adjudged to 
 begin presently, though in the deed it is limited to begin after the 
 expiration of the first lease so recited; because the jury do not actually 
 find the first lease, but only a recital of it in another deed, which 
 recital may be false for aught that appears to the Court : and then the 
 second lease shall begin presently, as if no such first lease were at all, 
 
 {a) I Salk. 154, (i) Cowp. 597. (<:) 7 T. R. 723. (</) 2 Bl. Com. 143. 
 
 (0 Co. R. 10, p. 87. (/) I Vent. 194. 5. (g) a Bl. Com. 144. Shep- Touch. 467. 
 {b) Ibid. 273. (>•) Cro. Car. 398. jca. (i) Ibid. {I) Ibid. 400,
 
 112 Of Terms for Years, ahsolutely, [Chap. VI. 
 
 since the not finding it effectually is as if there were none such 
 made {a). 
 
 With regard to the date of a lease, it was formerly held that a lease 
 to commence a datu included the day of the date, but that a die datus 
 excluded the day(^). 
 
 But it has since been held, that the word « from" may mean either 
 inclusive or exclusive, according to the context and subject-matter (c); 
 though this decision has been much questioned. 
 
 A lease *' from the day of the date," and " from henceforth,*' is 
 the same thing {d). 
 
 If a lease be made to begin from an impossible date^ it shall take 
 effect from the delivery ; because it could not be any part of the 
 agreement between the parties, as from the 30th day of February^ or 
 the 3 2d day of April next (^): — but where the limitation is tinca-taint — 
 as a lease made the loth day of October^ habendum from the 20th day 
 of Novembefy without saying what November was meant, whether last 
 past, or next ensuing, or what other November, the lease is thereby 
 vitiated, because the limitation was part of the agreement, but the 
 Court cannot determine it, not knowing how the contract was(y"). 
 
 So, where a lease is made to begin from the nativity of our Lord 
 last past, without saying from the feast of the nativity, this lease shall 
 begin presently; because it could be no part of the agreement be- 
 tween the parties that the lease should begin from the nativity itself, 
 which is past so many hundred years ago ; and therefore for this im- 
 possibility of relation, the lease shall begin presently [g): — but if it 
 were to begin from the nativity of our Lord generally, or next ensuing, 
 omitting the word " feast," Twesden was of opinion that such a lease 
 should be void for the uncertainty of the commencement ; but Siderjin 
 in reporting the case, makes a qu^re, if it shall not begin presently ; 
 and in truth, this seems the most reasonable opinion, for as to im- 
 possibility of relation, there is the same in this as there is in the 
 other, and therefore by the same reason, it shall begin presently. 
 The editor of Bacon asks what sound reason can be assigned why it 
 should not commence from the Christmas intended by the parties ? 
 which well applies to the lease to begin from the nativity of our 
 Lord next ensuing if not to the former [h). 
 
 Where a lessee for an hundred years made a lease for forty years to 
 B. if he should so long live, and after leased the same lands to C. ha- 
 bendum for twenty-one years from the end of the term of B. to begin > 
 and be accounted from the date of these presents : and the question 
 was, if the lease to C. should be said to begin presently, or after the 
 term of B. ? the judges were clearly of opinion, that the lease to C. , 
 
 {a) Bac. Abr. tit. Leases. (L. I.) (^) % S.ilk. 413. x I A. Ray. 84. 
 
 (t)Cowp. 714. ((/) Cro J.1C. 258. (<•) Bhc. Abr. «/ <!«/<•. 
 
 (/) I Mpd, 180. Cp) Bac, Abr. ul ante. (A) Sid. 4.6 J-
 
 Sect. II.] or on Conditio7i, 8^c. 113 
 
 should not be accounted from the time of the date, but from the end 
 of the term of B. because by the first words it is a good lease in re- 
 version in that manner, and then it shall not be made void by any 
 subsequent words, or as Coke said, the last words ought to be con- 
 strued to give an interest as a future interest presently, and the actual 
 possession after the expiration of the first forty years is well granted 
 by the first words {a). 
 
 A lease may commence at one day, in point of computation, and at 
 another in point of interest {b). 
 
 Therefore, a lease " to hold from a day past for fifty years then 
 next ensuing, the said term to commence and begin immediately after 
 the determination of an existing lease in the same premises," was not 
 esteemed uncertain as to its commencement {c). 
 
 So, a lease habendum to the lessee for his life, which term shall 
 begin after the determination of a previous term for three lives, is 
 good {d). 
 
 So, if an indenture of demise bear teste 25th March, j^ Car. and is 
 delivered the day of the date, and the habendum is from and after the 
 day of the date of these presents, for and during the time and term 
 of seven years from henceforth next and immediately following, fully 
 to be complete and ended, this lease begins in computation from the 
 delivery of the deed, which was the day of the date, and in interest 
 the next day after the date, and so all the words will have an ope- 
 ration : for it appears that he was not to have the possession till 
 the next day after the date, by the words habendum from and after the 
 day of the date, which excludes the day of the date : but that the 
 seven years should commence by computation from the delivery, viz. 
 from henceforth, which refers to the limitation of the seven years {e), 
 
 A lease of lands by deed, since the new style, to hold from the 
 feast of St, Michael, must be taken to mean from new Michaelmas ; 
 and cannot be shewn by extrinsic evidence to refer to a holding from 
 old Michaelmas [f). 
 
 But all leases for years, whether they begin in prasenti^ or infuturoy 
 must be certain ; that is, they must have a certain beginning, and 
 certain ending, and so, the continuance of the term must be certain ; 
 otherwise they are not good {g). 
 
 Yet if the years be certain, when the lease is to take effect in in- 
 terest or possession, it is sufficient, for until that time it may depend 
 upon an uncertainty, viz. upon a possible contingent precedent before 
 it begin in possession or interest, or upon a limitation or condition 
 subsequent ; but in case it is to be reduced to a certainty upon a con- 
 tingent precedent, the contingent must happen in the lives of the 
 parties : and though there appear no certainty of years in the lease, 
 
 (./) Bac. Ahr. ut ante. {U) % Burr. 1090. (c) Ibid. [fy Cro. Eliz. 269. 
 
 (<•) Bac. Abr, ut ante. (/) 11 East, 312. {£) Shep. Touch. 272. 
 
 I
 
 t 
 
 114 Of Terms for Years absolutely, [Chap. VI. 
 
 yet if by reference to a certainty it may be made certain, it is suffi* 
 cient {a). 
 
 As, if a lease be granted for twenty-one years after three lives in 
 being ; though it is uncertain at first when that term will commence, 
 because those lives are in being, yet when they die it is reduced to a 
 certainty {b). 
 
 So if A. seised of lands in fee, grant to B. that when B. shall pay 
 to A. twenty shillings, that from thenceforth he shall hold the land 
 for twenty-one years, and after B. pays the twenty shillings ; in this 
 case, B. shall have a good lease for twenty-one years from thence- 
 forth {c). 
 
 So if J. grant to B. that if his tenant for life shall die, that B. shall 
 have the land for ten years, this is a good lease •, and if one makes a 
 lease for years after tlie death of C. if C. die within ten years ; this 
 is a good lease if C. die within the ten years, otherwise not (r). 
 
 So if a lease for years be made of land in lease for life, to have 
 and to hold from the death of the tenant for life ; — or to have and to 
 hold from Michaelmas next after the death of the tenant for life ; — or 
 from Michaelmas next after the determination of the estate of the 
 t-nsnt for life : these are good leases [c]. 
 
 Even if one make a lease to begin after the death of "J. S. and to 
 continue until Michaelmas, which shall be amjo Domini 1650, this is a 
 good lease (c). 
 
 So, if a man make a lease to B. for ninety years to begin after the 
 death of A. on condition to be avoided upon the doing of divers acts 
 by others ; and afterwards makes another lease of the land, habendum • 
 after the determination or redemption of the former lease ; it seems 
 this is a good lease and certain enough {d). 
 
 So, if a man have a lease of land for an hundred years, and he 
 make a lease of this land to another, to have and to hold to him for 
 forty years, to begin after his death ; this is a good lease for the whole 
 forty years, if there shall be so many of the hundred years to come 
 at the time of the death of the lessor. So if he grant all his estate, 
 or all his term, or all his interest, in the premises of the deed, and 
 then say, to have and to hold the land, ^c. to the grantee for all the 
 residue of the term of an hundred years that shall be to come at the 
 time of his death -, by this the whole estate and interest of the grantor 
 in the land doth pass presently, by these words in the deed : and if in 
 this case the lessee for an hundred years make a lease of the land, to 
 have and to hold after his death for an hundred years ; this will be a 
 good lease for as many of the first hundred years as shall be to come 
 at the time of his death {d). 
 
 So if A. doth make a lease of land to B. for so many years as B. 
 
 {a) Sbei'. ■«"oud). 27Z. (b) 8 T. R. 463. {c) Shep. Touch. 173. 
 
 {d) Ibid. Z74. 
 
 6
 
 Sect. II.] or on Condition, S^-c. 115 
 
 hath in the manor of Dale^ and B. hath then a lease for ten years in 
 such manor ; this is a good lease for ten years {a). 
 
 So, if a lease be made during the minority of J. S. or until J. S. 
 shall come to the age of twenty-one years, these are good leases ; and 
 if 7, S. die before he come to his full age, the lease is ended. So, if 
 a man make a lease for twenty-one years, if J. S. live so long : or if 
 the coverture between J. S. and D. S. sliall so long continue ; or if 
 y. S. shall continue to be parson of Da/e so long •, these and such 
 like leases are good (1^). 
 
 If one makes a lease to j^. for twenty- one years, and after makes 
 another lease to B. for years, to begin from the en4 and expiration 
 of the aforesaid term of twenty-one years demised to A. ; and then 
 the lease to J. is determined, cither by an express surrender, or by an 
 implied surrender in law, as by y^.'s acceptance of a new lease for 
 life from the lessor, the tease to B. shall begin presently ; but if the 
 lease to B, had been to begin after the end and expiration of the afore- 
 said term of twenty-one years, there the lease to B. should not begin 
 upon the surrender, forfeiture, or other determination of the first term to 
 A. till the twenty-one years actually run out by effluxion of time ; 
 the reason of which difference is, that in the first case the word "term" 
 comprehends as well the estate or interest in the land, as the time for 
 which it is demised, and therefore the second lease being limited to 
 begin from the end and expiration of the aforesaid term of twenty- 
 one years, whenever the term is determined, the lease to B. shall 
 begin -, but in the other case the lease to B. is not to begin till after 
 the end and expiration of the twenty-one years, which cannot be 
 ended but by effluxion of time (r). 
 
 So, it was held that a proviso in a lease for years to j^. to re-enter 
 if lessee died within the term, is a mere condition, and not a limita- 
 tion ; and a second lease habendum cum post mortem sive per mortem sur- 
 sum reddithnem seuforisfacturampradictiA. vacar'i acc'iderity is good, and 
 commences when the first term is determined by effluxion of time [d). 
 
 So, if one makes a lease to another for so many years as f. S. shall 
 name, this at the beginning is uncertain •, but when f. S. hath named 
 the years (in the life-time of the lessor), this ascertains the com- 
 mencement and continuance of the lease accordingly. — But if the lease 
 had been made for so many years as the executors of the lessor should 
 name, this could not be made good by any nomination ; because to 
 every lease there ought to be a lessor ^id lessee ; and here the nomination 
 which ascertains the commencement not being appointed till after the 
 death of the lessor, makes the lease defective in one of the main parts 
 of it, viz. a lessor, and therefore of consequence must be void ; which 
 is also the reason that in the first case the nomination ought to be 
 
 (4) Shep. Touch. ^74. (J,) Ibid. {c) Bac. Abr. tit. Leases. (L. i.) {d) Cro. Jac. 71. 
 
 I 2
 
 116 Of Teryns for Years absolutely, [Chap. VI. 
 
 made in the life-time of the lessor, and not by J' S. after his death, 
 for then it will be void (a). 
 
 A lease in reversion of several parcels of land, made to commence 
 on the happening of several contingencies, shall take effect and com- 
 mence respectively as those contingencies happen (^). 
 
 In a case where B. had a lease for t'vventy-one years of copyhold 
 lands to commence after the determination of the estate vv^hich ^. at 
 that time had therein, and the widow of ^. being entitled to her free- 
 bench, happened to outlive her husband twenty-one years, it was held 
 by the Lord Chancellor, that the estate of the wife was only an ex- 
 crescence of her husband's estate, which did not determine till the 
 wife's death, at which time the lease made to B. should commence 
 and continue for twenty- one years (c). 
 
 A lease for years, reserving rent " after the rate" of 1 8/. a-year, is 
 void for uncertainty (J). 
 
 As to leases void for uncertainty in respect to the time of their 
 commencem.ent, if ^. be seised of land in fee, and lease it to B. for 
 ten years, and it is agreed between them that B. shall pay to j4. ioo/. 
 at the end of the said ten years, and that if he do so and shall pay the 
 said ioo/. and loo/, at the end of every ten years, that then the said 
 B. shall have a perpetual demise and grant of the premises from ten 
 years to ten years continually following extra memorlam hominum^ l^c; 
 ■ this, although it be a good lease for the first ten years, yet it is void 
 for all the rest for uncertainty (e). 
 
 So, if the lessor grant the land to another, to have and to hold to 
 him for and during all the residue of the term of one hundred years 
 that shall be to come at the time of the death of the grantor, this is 
 void for uncertainty : had he granted all his estate, or term, or interest, 
 it had been otherwise {jf). 
 
 So, it is said, if a lease be made to ^. for eighty years, if he live 
 so long, and if he die within the said term or alien the premises, that 
 then his estate shall cease ; and then he doth further by the same 
 deed grant and let the premises for so many years as shall remain 
 unexpired after the death of j4. or alienation, to B. for the residue of 
 the said term of eighty years, if he shall live so long : in this case the 
 lease to B. is void ; for after the death of ^. the term is at an end ; 
 but if he say for the residue of the eighty years, it is otherwise (g). 
 
 So, a lease made to another until a child in its mother's belly shall 
 come to the age of twenty-one years, is not good (/6). 
 
 So, if y/. make a lease to B. for so many years as y!. and B. or 
 cither of them shall live, not naming any certain number of years, 
 this cannot be a good lease for years (/'). 
 
 (rt) Bac. Abr. tit. Leases. (L. 2.) (l>) do. Eliz. 199. (c) Bac. Ahr. til anU. 
 
 {J) 4 Mod. 78. {t) .Shcp. Touch. 27,^. (/) Ihid. 774. (^) Iliirf. 
 
 (b) Il.l.l. (i) Ibid. 275. 
 
 7
 
 Sect. II.] <)r on Condii/o7i, S^x. 117 
 
 So, if the parson of Dale make a lease of his glebe for so many 
 years as he shall be parson there ; this is not certain, neither can it 
 be made so by any means ; and yet if a parson shall make a lease 
 from three years to three years so long as he shall be parson, this is 
 a good lease for six years, if he continue parson so long, and for the 
 residue void for uncertainty. 
 
 So, if I make another a lease of land, until he be promoted to a 
 benefice; this is no good lease for years, but void for uncertainty (a). 
 
 So, if I have a piece of land of the value of 20/. per annum, and 
 I make a lease of it to another, until he shall levy out of the profits 
 thereof 100/. this is no good lease for years, but void for uncertainty. 
 — But if I have a rent-charge of 20/. per annum, and let it to another 
 until he shall have levied 100/. this is a good lease for five yqars {h). 
 
 Note. — In all these cases of uncertain leases made vi^ith limitations 
 as aforesaid, as until such a thing be done, or so long as such a thing 
 continue, life, if livery of seisin be made upon them, they may be 
 good leases for life, determinable upon these contingencies, albeit 
 they be no good leases for years (<r). 
 
 In leases for years, or other chattel interests, livery of seisin is not 
 necessary ; but instead thereof an actual entry is requisite, to vest the 
 estate in the lessee : for to many purposes he is not tenant for years 
 until he enter (d). 
 
 Before entry the lessee hath but an interesse iennim, an interest of 
 a term, and no possession; and therefore a release, which enures by 
 way of enlarging an estate, cannot work without a posi<ession, for 
 before possession there is no reversion. Such is the case of leases at 
 common law ; for if it be so framed as to be a bargain and sale 
 under the statute, the possession is immediately executed in the lessee, 
 so that no entry is necessary [e). 
 
 Yet if a tenant for twenty years in possession make a lease to B. 
 for five years, and B. enter, a release to the first lessee is good, for 
 he had an actual possession, and the possession of the lessee is his 
 possession. So it is if a man make a lease for years, the remainder 
 for years, and the first lessee doth enter, a release to him in the re- 
 mainder for years is good to enlarge his estate. A release therefore 
 that enures by enlargement cannot work without a possession ; but 
 an actual estate in possession is not necessary, for a veted interest 
 suffices for such a release to operate upon. — But lessee may release 
 the rent reserved before entry, in respect of the privity (/). 
 
 Neither could the lessor grant away the reversion by the name of 
 the reversion before entry, unless the lessee attorned, which is now 
 unnecessary (^). 
 
 (^) Shpp, Touch. 275. (^) lt>id. (0 Ibid, (i) z Bl. Com. 314. IblJ. 144- 
 
 Co. Lit. 46. b. {e) Ibid, Z70. & 11. a. (/) Ibid, {£) Ibid. 46. b. 3. Jon. 8.
 
 118 OfJ'ennsfory'earsahaoluldij^ [Chap. VI. 
 
 If a man make a lease for a thousand years, this lease is perfect 
 by the delivery of the deed without any livery of seisin (a). 
 
 The interest, interesse termini^ which the lessee hath before entry, 
 is grantable to another ; and although the lessor die before the lessee 
 enter, yet the lessee may enter into the lands : so, if the lessee die 
 before he enter, yet his executors or administrators may enter, be- 
 cause he presently by the lease hath an interest in him ; and if it be 
 made to tv/o, and one die before entry, his interest shall survive ib). 
 
 This interesse term'mi is in the lessee, whether the 'ease be made to 
 commence immediately, or at a future day (r). 
 
 This entry by the tenant himself serves the purpose of notoriety, 
 as well as livery of seisin from the grantor could have done \ which 
 it would have been improper to have given in this case, because that 
 solemnity is appropriated to the conveyance of a freehold (f/). 
 
 When the lessee therefore has actually so entered, and thereby ac- 
 cepted the grant, the estate is then and not before vested in him, and 
 he is possessed, not properly of the land, but of the term of years ; 
 the possession or seisin of the land remaining still in him who hath 
 the freehold {e). 
 
 Duration of a Lease for Tears. — As to the certainty of leases for 
 years in respect of their continuance or duration, this ought to be 
 ascertained either by the express limitation of the parties at the time 
 of the lease made, or by a reference to some collateral act, which 
 may with equal certainty measure the continuance thereof, otherwise 
 it will be void (^f). 
 
 If a man makes a lease for years, without saying how many, this 
 shall be a good lease for two years certain ; because for more there is 
 no certainty, and for less there can be no sense in the words {f). 
 
 If a man leases lands for such a term as both parties shall please, 
 this is but a lease at will ; because what that term will be is utterly 
 uncertain, and the pleasure of the parties seems to be limited to 
 attend the continuance as well as the commencement and first fixation 
 thereof (/). 
 
 80, if a parson makes a lease for a ^year, and so from year to year 
 as long as he shall continue parson, or as long as he shall live ; this 
 is a lease for two years at least, if he lives and continues parson so 
 long ; and after the two years, or at most after three years, but an 
 estate at will for the uncertainty, unless livery be made {f)- 
 
 A parson made a lease of his rectory to one for three years, and at 
 the end of those three years, for other three years, and so from three 
 years to three years, during the life of the lessor ; the whole Court 
 held it clearly a lease for twelve years ; but by DoddridgCy if the lease 
 
 (a) Shrp. Touch, an. {!,) Co. Lit. 46. b. (c) Com. Dig. tit. Estates. (G, 14.) 
 
 {d) t Bl. Com. 31. J. (f) Ibid. 144. (/) Bac. Abr, lit. Leases. (L. j.)
 
 Sect. II.] or on ConcUlion, 8^c, 119 
 
 had been for three years, and so from three years to three years, and 
 so from the said three years to three years, this had been but a lease 
 for nine years ; because the words " from the said three years" tie up 
 the relation retrospectively to the three years last mentioned, which 
 make in all but six years, and then there are but three years more 
 added, which make the whole but nine years; and for the words 
 *' during the life of the lessor," they cannot enlarge it to any further 
 certain number of years by reason of the uncertainty of the lessor's 
 Hfe, and therefore beyond the twelve years, or nine years, it amounts 
 only to a lease at will, unless livery were made, which must neces- 
 sarily pass a freehold determinable upon the lessor's death {a). 
 
 Yet in one book, where a lease was made for three years, and 
 after the end of those three years, for other three years, and so from 
 three years to three years, during the life of the lessor, this was 
 held to be only a lease for nine years *, because the words *' and so 
 from three years" shall be referred to the three years last mentioned, 
 for otherwise these words would exclude the three years next after 
 the six years, and make the three last years to begin after nine years, 
 and so make a chasm in the lease by shutting out the three years 
 next after the six years, so as for the three last years it should be 
 only a future interest : which case seems to be of a new stamp, and 
 to thwart the preceding case as to the resolution of it being a lease 
 for twelve years j and there Jofies and Wild held, that a lease from 
 three years to three years, was but a lease for three years to com- 
 mence in futuro (b). 
 
 One made a lease for three years, and so from three years to three 
 years until ten years be expired ; this was resolved to be a lease but 
 for nine years, and that the odd year should be rejected, because that 
 cannot come to fall within any three entire years according to the 
 limitation, which in this case are to be taken altogether as one year, 
 or else so much of the limitation as cannot come within that descrip- 
 tion must be rejected ; and this seems to agree with Brook [tit. Leasesj] 
 and Plonvden, [Reports^ 273, 522. a.'] who in general hold a limita- 
 tion in that manner, from year to year for forty, fifty, or one hundred 
 years, to be a good lease for the whole term, because there is no 
 such break of an odd year at the latter end of the lease, as there is 
 in the other case (c). 
 
 Where the lessor demised certain freehold and copyhold lands at an 
 entire rent, habendum to so much as freehold for twenty-one years, 
 and so much as copyhold for three years (warranted by the custom), 
 and covenanted for renewal of the lease of the copyhold every three 
 years, toties quoties, during the twenty-one years, under the like cove- 
 nants ; and that in the meantime, and until such new leases should be 
 
 («) Bac. Abr. tit. Leases. (L. 3.) (i) Ibid. 3 Keb. 760. 768. 
 
 (*) Bac. Abr. ut anie; el vide % Show. 31,
 
 120 Of Terms for Years ahsolidely ^ [Chap. VI. 
 
 executed, the lessee should hold the said land as well copyhold as 
 freehold, &c. This was held to be a lease of the copyhold for the 
 three years only (a). 
 
 A parol demise to hold from year to year, and so on as long as it 
 shall please both parties, is a lease for two years, and after every 
 subsequent year begun, is not determinable till that year be ended [b). 
 
 If therefore A. demise lands to B. for a year, and so from year to 
 year ; this is not a lease for two years and afterwards at will, but it is 
 a lease for every particular year, and after the year is begun, the de- 
 fendant cannot determine the lease before the year is ended. But in a 
 lease at will, the lessee may determine his will after the payment of 
 his rent at the end of a quarter, but not in the beginning, lest his 
 lessor should lose his rent, Iii that case, therefore, the question seems 
 to have been, whether after the third year commenced, the lessor was 
 entitled to the whole year's rent, and Holt held that he was, because 
 the tenant could not determine the estate in the middle of the year; 
 and the expression " for every particular year does not mean that 
 such a lease operates as a distinct demise for each year separately, 
 but that when any year has commenced, it is good for the whole of 
 that year (c)." 
 
 So, where A. agreed by parol to sell an estate to B. on certain 
 terms, provided B. would continue C. his tenant " not for one year 
 only, but from year to year" {C. having just before been let into 
 possession under a contract for the purchase of the estate, which he 
 had failed to pay for in time, and had therefore forfeited his deposit;) 
 and A. thereupon agreed to take C's forfeited deposit as part of the 
 purchase-money ; A. and B. afterwards reduced their agreement re- 
 specting the purchase into writing, in which no notice was taken of 
 the stipulation concerning C.'s tenancy, yet it was held, that this 
 stipulation, being collateral to the written agreement, was binding 
 upon B. and that the agreement operated as a tenancy for two years 
 certain at least, though a rent was not then mentioned, but was to 
 be settled afterwards ; and that the tenancy could not be put an end 
 to at the expiration of the first year by six months' notice to quit [d). 
 
 A lease " for seven, fourteen, or twenty-one years, as the lessee 
 shall think proper," upon which the lessee enters and continues in 
 possession, is undoubtedly a good lease for seven years, whatever 
 may be its validity as to the two other eventual terms of fourteen and 
 twenty-one years (r). 
 
 So, a lease in 1785, for three, six, or nine years, determinable in 
 17H8, 1 79 1, and 1794, is a lease for nine years determinable at the 
 end of three or six years, by cither of the parties, on giving reason- 
 able notice to quit(y). 
 
 (-/) iM.h S. ^SS- {'') 2 S.ilk. 414. Si.lk. 313. a. I. Wils. a6a. 4. EaR's R. 32. 
 
 {c) I T. R. jSo. VrAk. 414. if, (■/) 4 Easi'i R. 31. (» a Bur. 1034. (/) 3 T. R. 4G2.
 
 Sect. II.] or on Condition, 8^c. \^l 
 
 An agreement to grant a lease for seven, fourteen, or twenty-one 
 years, without saying at whose option, gives the option to the lessee 
 alone {a). 
 
 So also where a lease is granted for twenty-one years, determinable 
 at the end of the first seven or fourteen, without saying at whose 
 option, it is only determinable at the option of the lessee {b) ; for a 
 grant shall always be taken most strongly against the grantor. 
 
 One lets a stable for a week for 8j-. and so from week to week at 8/. 
 a week, as long as both parties pleased ; this was held at most but a 
 lease for three weeks certain, and for the residue at will [c). 
 
 Where a lease is to two for forty years, if they so long live, Rolle 
 [in his reports, 309, 310.] seems to think that this does not determine 
 by the death of one of them, because it is an interest in both, which 
 shall survive ; but the other books are against it ; because their life is 
 but a collateral condition and limitation of the estate, which therefore 
 is broken when one dies : — this differs therefore from a lease to two 
 persons for their lives, for that gives an estate to both for their lives, 
 and both have an estate of freehold therein in their own right ; which 
 consequently cannot determine by the death of one of them, for then 
 the other could not be said to have an estate for his life, as the lease 
 at first gave it (d). 
 
 So, where one made a lease for forty years, " if his wife or any of 
 their issue should so long live :" it was adjudged that the lease was 
 not determined by the death of one of them, but should continue 
 till all were dead by reason of the disjunctive or, which goes to and 
 governs the whole limitation : but if the words had been *< if his 
 wife and issue should so long live," there clearly, by the death of any 
 of them within the forty years, the term had been at an end, by 
 reason of the copulative and, which conjoins all together, and makes 
 all their lives jointly the measure of the estate {e). 
 
 A lease was for twenty-one years, if the lessee lived so long and 
 continued in the lessor's service ; the lessor dies ; and. Whether the 
 term was determined ? was the question. Three of the Justices held, 
 that the lease continued ; for there is not any laches in the lessee that 
 he did not serve, but it is the act of God that he did not serve 
 any longer : but the fourth was strongly against it ; because it is 
 a limitation to the estate, that it shall not continue longer than he 
 serves [f). 
 
 If a person, having an interest for three years only, make a lease 
 for five years, it would be good for the three years : for where an au- 
 thority is given to any one to execute any act, and he executes it con- 
 trary to the effect of his authority, this is utterly void j but if he exe- 
 
 {a) 17 Ves. J. 363. (p) 3 B. & P. 399. (e) Bac. Abr. tit. Leases. (L. 3.) 
 
 \d) Ibid. (L. 4.) {e), Cro, IZliz. 270. Co. Lit. zaj. «. (</) Cro. Eliz. 643-
 
 122 Of Terms for Years absolutely, [Chap. VI. 
 
 cutes his authority and withal goes beyond the limits of his warrant, 
 this is void for that part only wherein he exceeds his authority [a). 
 
 If a lease be made for life or years to A. and afterwards the lessor 
 makes a lease for years to B. regularly, this concurrent lease to B. is a 
 good lease at least for so many years of the second lease as shall be to 
 come after the first lease is determined according to the agreement : as 
 if the first lease to A. be for twenty years, and the second lease to 
 B. be for thirty years, and both begin at one time, in this case the 
 second lease is good for the last ten years {b). 
 
 If the lord of a manor may by the custom grant copyhold estates " to 
 three persons habendum to them successively, as they shall be named 
 and not otherwise," a surrender to A. for his own life, and for the 
 lives of B. and C. is warranted by the custom (c). 
 
 Although, as hath been said, a lease for years must have a certain 
 beginning, and a certain end, yet the continuance thereof may be un- 
 certain, for the same may cease and revive again in divers cases. As 
 if tenant in tail make a lease for years reserving 20/. and after take a 
 wife and die without issue ; now as to him in the reversion the lease 
 is merely void : but if he endow the wife of tenant in tail of the land 
 (as she may be though the estate tail be determined) now is the lease 
 as to tenant in dower (who is in of the estate of her husband) revived 
 again as against her, for as to her the estate tail continues, for she 
 shall be attendant for the third part of the rent-services, and yet they 
 were extinct by act in law (d). So it is, if tenant in tail make a lease 
 for years as before, and die without issue, his wife ensient with a son, 
 and he in the reversion enter, against whom the lease is void ; but 
 after the son be born the lease is good, if it be made according to the 
 statute, and otherwise is voidable. So, if tenant in fee-simple take a 
 wife, and then make a lease for years, and die, and the wife is en- 
 dowed ; in this case she shall avoid the lease, but after her decease the 
 lease shall be in force again [e). 
 
 So, a rent-charge for life is suspended by the acceptance of a lease 
 of the land ; and by the surrender of such lease, revives again {/). 
 
 Termination of a Lease for Tears. — With respect to the termination 
 of a lease, a demise may be determined by either of these circum- 
 stances occurring ; namely, by the period expiring during which the 
 premises were leased, which may take place upon the contingency, 
 if there be any, happening; by surrender to the lessor ; by cancellation 
 of the deed [de quo quare?'] ; by condition within the deed or indorsed 
 thereon ; or by forfeiture for the breach of some contract express or 
 implied. 
 
 I . Termination by Effluxion of Time. — The common means whereby a 
 lease determines, is by the period expiring for which the lands, ilfc. 
 
 (-1) Bull. N. P. 106. Comp. Copy. 93. {b) Shcp. Touch. ^75. («) 6 Mod. 73. 
 
 (d) Co. Lit. 46. («) 31 H. 8. c. a8. Shcp. Touch. 475. (/) Cro. Car. lOi.
 
 Sect. II.] or on Condition^ S^c. 123 
 
 were demised ; or upon the contingency happening that was to create, 
 as it were, such period j as where a lease is made during the minority 
 of J. S. when J. S. comes to his full age the lease terminates; or if he 
 die before, it is ended. 
 
 Where a lease is expired, the tenant still continues liable, unless he 
 deliver up complete possession of the premises, or the landlord accept 
 of another in his room (<3). 
 
 The circumstance of the landlord signing a notice, by which a 
 tenant, whose lease is expired, orders his under-tenant to pay his rent 
 to him in future, is not evidence of his agreement to accept him as 
 his tenant, unless it be proved that he knew the contents of the 
 notice [b). 
 
 2. Termination by Merger. — Another means, whereby a lease for years 
 may be defeated, is by way of merger, that is, when there is an union 
 of the freehold or fee and term of years in one person at the same 
 time ; in which case the greater estate merges or drowns the lesser 
 because they are inconsistent and incompatible {c). 
 
 Thus, if a lease for years be made to commence after the death of 
 A. and the grantee of the inheritance afterward makes a lease for 
 years to B. and then the lessee of the future interest assigns to the 
 grantee of the inheritance, the future interest is drowned in the in- 
 heritance [d). 
 
 ■•> So, where a fee-farm rent is purchased in, by the person that is 
 seised in fee of the lands out of which it issues, it is merged in the 
 inheritance [e). 
 
 ' Lord Coke lays it down for a general rule, that one cannot have a 
 term for years in his own right and a freehold in outer droity but that 
 his own term shall drown in the freehold ; and puts these cases : If a 
 man, lessee for years, intermarries with the feme lessor, this shall 
 merge and drown his own term for years ; but if a feme lessee for 
 years intermarries with the lessor, her term is not thereby drowned ; 
 because, says he, one may have a term of years in outer droity and a 
 freehold in his own right, as the husband in this case shall have. So 
 if lessee for years makes the lessor his executor, the term is not thereby 
 drowned, because the lessor hath the term in outer droit. — So also, if 
 the master of an hospital, being a sole corporation, by the consent of 
 his brethren makes a lease for years of the possession of the hospital, 
 and afterwards the lessee for years is made master, the term is drowned 
 causa qua supra ; but if it had been a corporation aggregate, the making 
 of the lessee master had not extinguished the term, no more than if 
 the lessee had been made one of the brethren : yet if a lessee for years 
 of the glebe be made parson, the term is merged by reason of the 
 
 (a) I Esp. R. 57. (i) Ibid. (<r) Bac. Abr. tit. Leases. (R.) (</) Cro. Jac. 619. 
 
 {e) 10 Mod. 523,6.
 
 124 Of Terms for Years ahsohilelij, [CIuip. VI, 
 
 union of the term and freehold in him to his own right and juse, 
 though he has them in several capacities (a). 
 
 But this rule seems to admit of divers exceptions ; for if a husband 
 be possessed of a term in his own right, and the inheritance descend 
 to his wife, the term will not merge by his descent itt outer droit ; for 
 it was by act and operation of law {b). So if a lease had been made 
 upon trust, for the advancement of such a woman, and the lessee had 
 after intermarried with that woman, and then the inheritance had de- 
 scended to her ; this, it was agreed, would not merge the term, but 
 he might clearly dispose thereof to the purpose intended ; because he 
 had it in outer droit and to another use. — So, it seems to be agreed, 
 that if a man being possessed of a term for years in right of his wife, 
 purchases the inheritance, that by this the term for years, though in 
 right of his wife, is merged and extinct, because the purchase was the 
 express act of the husband, and therefore amounts in law to a dispo- 
 sition of the term, by reason of the merger consequent thereupon : 
 but a bare intermarriage of the feme termor with the reversioner v/ill 
 not work a merger of the term, because by the intermarriage the term 
 is cast upon the husband by act of law, without any concurrence or 
 immediate act done by him to obtain the same ; and therefore, in such 
 case, the law will preserve the term in the same plight as it gave it 
 to the husband, till he by some express act destroys it, or gives it 
 away (c). 
 
 Where however the husband himself is lessee for life, anB inter- 
 marries with the lessor, this merges his own term, because he thereby 
 draws to himself the immediate reversion, in nature of a purchase by 
 his own voluntary act, and so undermines his own term ; whereas, in 
 the other case, the term existing in the feme till the intermarriage, is 
 not thereby so drawn out of her, or annexed to the freehold as to 
 merge therein j because that attraction which is only by act of law 
 consequent upon the marriage, would, by merging the term, do wrong 
 to a feme-covert, and so take the term out of her, though the husband 
 did no express act to that purpose, which the law will not allow. 
 But in such case, if the feme should survive, and have dower of these 
 lands, this seems a merger of her term for a third part at least ; be- 
 cause now she hath the term and freehold both in her own right, and 
 then the accession of the freehold mxxsi pro tanto merge and drown the 
 term (J). 
 
 liut if a feme executrix takes husband, and the husband after pur- 
 chases the reversion, and dies, yet the feme surviving shall not have 
 the term to any other purpose but as assets to pay debts ; for as to any 
 right of her own therein, the term is extinct by such purchase of the 
 
 (.a) U;h. Ahr. ul ante. 
 (<•) liac. Abr. ut ante. 
 
 Co. Lit. 338. 
 
 (i) Cro. J:.c. a 75.
 
 Sect. II.] or on Condition, 4'C. ItS 
 
 husband, because that was his own express voluntary act, and there-i 
 fore amounts to a disposition of the term by the merger wrought 
 thereupon (o). 
 
 One lets lands to -^. for life, and twenty years over, and after lets 
 the same lands to B. for forty years, to commence after the death of 
 j4. and the end of the said twenty years ; then B. intermarries with 
 ^. and ^. dies, and B. the husband hath the term for twenty years, 
 yet his term of forty years is not surrendered by it, because that was 
 not begun, but was a future interesse terminiy to begin wholly after the 
 first lease ended ; so there was no union at all of the terms (b). 
 
 Land was given to the husband and wife, and to the heirs of the 
 husband ; the husband makes a lease for years, and dies, and the wife 
 enters and intermarries with the lessee : it was holden that this termi 
 Was not extinct, because the entry of the wife put a total interruption 
 to the interest of the lessee, and avoided the term entirely as to herself, 
 because she was in of the freehold by survivorship paramount the 
 lease, and then the lease cannot take place again till after her death 
 against the heirs of her husband, and whether she will outlive the 
 term or not is uncertain ; so that during her life, the lessee had no in- 
 terest, but only a bare possibility, which cannot be touched or hurt, 
 by the intermarriage, but continues just as it was before {c). 
 
 As more particular notice of cases touching this matter would tend 
 little, if at all, to elucidate the subject of this work, we shall merely 
 mention, that a court of law cannot merge estates unless it finds them 
 in the same person, and acquired (subject to some exceptions) in the 
 same right. But courts of equity look into the beneficial interests and 
 views of parties, and do not regard whether the estates are strictly in 
 the same person, or in different persons. Hence it is a general rule 
 with these courts, that where the owner of an estate becomes entitled 
 to a charge upon it secured by a term of years, such term shall sink 
 for the benefit of the heir. Thus, though the owner were a lunatic, 
 the term shall merge j for as between his mere absolute real and per- 
 sonal representatives, no equity can exist. — But exceptions to this 
 rule are admitted in several instances. 
 
 3. Terniinatton by Surrender. — A third mode by which a lease may be 
 made to determine, is by surrender, which properly is a yielding up of 
 an estate for life or years to him that hath the immediate estate in re- 
 version or remainder, wherein the estate for life or years may drown 
 by mutual agreement [d): and It differs from a release in this respect, 
 that the release operates by the greater estate descending upon the 
 less; whereas a surrender Is the falling of a less estate Into a greater (f). 
 
 A surrender is made by these words, " hath surrendered, granted, 
 and yielded up." The surrenderor must be In possession, and the 
 
 {a) Bac. Abr. ut antf. (i) Bac. Abr. tit. Leases. (S. 3.) {() Ibid. (R.) 
 
 (d) Co. I,it. 337. (/•)Ibici. 11. I. 
 
 1^'
 
 126 Of Terms for Years absolutely^ [Cluip. VI, > 
 
 surrenderee must have a higher estate, in which the estate surren- 
 dered may merge : therefore tenant for life cannot surrender to him 
 in remainder for years. In a surrender there is no occasion for livery 
 of seisin ; for there is a privity of estate between the surrenderor and 
 the surrenderee, the particular estate of the one and the remainder of 4, 
 the other being one and the same estate ; livery therefore having been 
 j once made at the creation of it, there is no necessity for having it 
 1^1 .afterwards {a). 
 
 If an estate be surrendered, the whole estate is determined without 
 other ceremony ; and as to the parties themselves, it will be deter- , 
 mined to all intents {V). 
 
 By the statute of frauds and perjuries (29 Car. 2. c. 3.) it is pro- 
 vided, that no leases, estates, or interests, either of freehold or term 
 of years, shall be surrendered, unless it be by deed or note in writing, 
 signed by the party so surrendering or their agents thereunto lawfully , 
 authorized by writing, or by act and operation of law. j. 3. , 
 
 It was held, that a lease for years cannot be surrendered by cancel- ■_ 
 ling the indenture without writing ; because the intent of the statute., . 
 was to take away the manner they formerly had of transferring inte- 
 rests in lands, by signs, symbols, and words only ; and therefore, as a 
 liv.ery and seisin on a parol feoffment was a sign of passing the fregj- 
 hold, before the statute, but is now taken away by the statute, so the , 
 cancelling a lease was a sign of a surrender before the statute, but is 
 now taken away, unless there be a writing under the hand of the 
 party. — It has also been held, that the statute does not make a deed 
 absolutely necessary to a surrender; for it directs it to be made either • 
 by deed or note in writing, which note in writing, though not a deed, 
 must, it is conceived, be stamped, according to stat. 23 G. 3. c. 58. s. 
 I. which imposes a duty on " any conveyance, surrender of grants 
 or offices, release," ^f. and the surrender of a lease is the surrender 
 of a grant, and is, as it were, a re-demise (c). 
 
 It seems doubtful whether this provision of the stat. of Frauds ex- , 
 tends to leases hy parol. Where a landlord said to his tenant (who 
 held under a parol demise) in the middle of a quarter, " you may 
 quit when you please," and the tenant accordingly left the premises a ,, 
 few days afterwards, it was ruled by Lord Ellenhoroughy C.J. that the,,v 
 tenant was notwithstanding liable for the rent, for that the tenancy 
 "Was not determined by such parol license ; for there was a subsisting 
 term, which by the stat. of Frauds could only be determined by a note 
 in writing or by operation of law ; and on a motion for a new trial 
 the Court of King's Bench confirmed his direction (J). But in a sub- 
 sequent case in the Court of Common Pleas, where there was a parol 
 agreement that the landlord should give up his rent, and the tenant 
 
 [a) a El. Com. 326. Co. Lit. 337. (A) Com. Dig. tit. Surrender. (L. i.) Co. Lit. 338. 6. 
 (#) n, I, to Co. Lit. 338. ((/) % Camp. lOj.
 
 Sect. IL] or on Condition^ ^c, 127 
 
 his possession, and the tenant quitted accordingly, it was held to be 
 a good defence to an action for use and occupation ; and Gibbsi C. J. 
 said that the difference between the cases was, that in the latter both 
 parties acted upon the agreement, and in the former the tenant only ; 
 and that the statute of Frauds had nothing to do with the matter {a). 
 
 As to what estate a surrender may operate upon, it was once 
 doubted whether years could merge in years ; but it seems to be now 
 settled, that if a term in reversion be greater than a term in posses- 
 sion, the greater would merge the lesser, as ten years may be sur- 
 rendered and merge in twelve or fourtee n years [b). 
 
 Even though the reversion were for a less number of years, yet 
 the surrender would be good, and the first term drowned ; as if one 
 were the lessee for twenty years, and the reversion expectant there- 
 upon were granted to one for a year, who granted it over to the lessee 
 for twenty years, this would work a surrender of the twenty years' 
 term, as if he had taken a new lease for a year of his lessor : for the 
 reversionary interest coming to the possession drowns it, and the 
 number of years is not material, for as he may surrender to him who 
 hath the reversion in fee, so he may to him who hath the reversion 
 for any lesser term {c). 
 
 It was held therefore, that where lessee for twenty years makes a 
 lease for ten years, and the lessee for ten years surrenders to his les- 
 sor, viz. to the lessee for twenty years, that this is good, and the 
 lessor shall have so many of the years as were then to come of his 
 former term of twenty years, that is, as it seems, so many years as 
 were to come of his reversion shall now be changed into possession (d). 
 Whether a lease for years in possession may be surrendered' so as 
 to be merged in a lease in remainder, be the term in remainder greater 
 or lesser than the term in possession, seems to be no where settled : 
 an estate for life however cannot, it is conceived, be surrendered to 
 or merge in a reversion, If it be only for years, but this is held other- 
 wise elsewhere (e). 
 
 Surrenders In law, or Implied surrenders, are excepted in the statute 
 of Frauds, and remain as they did at common law, if the lease, 
 which is to draw out such surrender, be in writing pursuant to that 
 statute (/). 
 
 As to the surrender in law of leases in possession, this is wrought 
 by acceptance of a new lease from the reversioner, either to begin 
 presently, or at any distance of time during the continuance of the 
 first lease : the reason why such acceptance of a new. lease amounts 
 to a surrender and determination of the first Is, because otherwise the 
 lessee would not have the full advantage that he had contracted for by 
 
 (i) 5 Taunt. 518. (b) Bac. Abr. tit. Leases. (S. %.) Cro. Eliz. 302. 
 
 (<r) Ibid. I Ld. Raym. 402. {i) Ibid. Poph. 30. (e) Bac. Abr. ut ante. 
 
 (/) Shcp. Touch. 301. & Com. Dig. th. Surrender. (L. X.) Perk. 68. stat. 29 C. a. t. j.
 
 128 Of Terms for Years ahsohttely, [Chap. VI. 
 
 acceptance of the second lease, if the first should stand in the way 
 and consume any of those years comprised in the second lease : for 
 which reason, and to enable the lessor to perfect and make good his 
 second contract, the lessee must be supposed to waive and relinquish 
 all benefit of the first [a). 
 
 If therefore lessee for life, or years, take a new lease of him in re- 
 version, of the same thing in particular contained in the former lease 
 for life or years, this is a surrender in law of the first lease. For this 
 purpose, it is not necessary that the surrenderor be in possession, for 
 if a lease be to commence at Michaelmas next, and the lessee take a 
 new lease before Michaelmas, this is a surrender in law of the first 
 lease {b). 
 
 So, if lessee for years accept a new lease from the guardian in 
 socage [c). 
 
 So, if lessee for twenty years takes a lease for ten years, to begin 
 at Michaelmas, there is no doubt but that the term of twenty years is 
 surrendered or determined presently •, for by the lessee's acceptance 
 he allows the lessor able to let the land during the other lease,, and 
 indeed by such acceptance the lessor hath power to make a new lease 
 during the former, and at the time of the lease making {d). 
 
 Where a lease was granted for twenty-one years, with a proviso 
 that it should be determinable by the lessee or lessor at the end of the 
 first seven or fourteen years, and a memorandum was indorsed six 
 years after the execution of the lease, " of its being agreed between 
 the parties previously to the execution, that the lessor shall not dis- 
 possess nor cause the lessee to be dispossessed of the said estate, but 
 to have it for the term of twenty-one years from this present time ;" 
 which memorandum was signed by the parties and stamped with a 
 lease stamp, but not sealed -, it was held that the memorandum did 
 not operate as a new lease and a surrender of the first lease [e). 
 
 If there be two lessees for life, or years, and one of them take a 
 new lease for years, this is a surrender of his moiety ; whereby it ap- 
 pears that a surrender in law may be made of some estates which 
 cannot be surrendered by a surrender by deed j for potior est disposith 
 legis qiiam hominis f). 
 
 But the reversion of the surrenderee must be an immediate rever- 
 sion (g). 
 
 If therefore J. lets to B. for ten years, who lets to C. for five years, 
 C. cannot surrender to J. by reason of the intermediate interest of B, 
 but in such a case B. may surrender to J. and after so many years C. 
 likewise, because then his lease for five years is become immediate to 
 the reversion of ^. (h). 
 
 (rt) Bac. Abr. tit. 31 V.ind. (S. 3.) Cro. Eliz. jai. 605. {/>) Shcp. Touclu 3PI. 
 
 (0 Com. Dij',. tit.Sunciidcr. (L. i.) (d) Cro. Eliz. 5za. (0 4 M. & S-..30. 
 
 (/) .SJifp.Twuch. 302. (x3 Plowil. 54.J. (/.) Bac.Abr. tit. (.S, 3.}
 
 Sect. II.] or 071 Condition, &^'c. 129 
 
 Where the lessee for years of a house accepts a grant of the cus*- 
 
 tody of the same house, it is a surrender, and has been so adjudged ; 
 
 for the custody of the same thing which was let before, is another 
 
 interest in the same thing leased, and cannot stand with the first 
 
 lease {a). 
 
 If the first lease be of the land itself, and the second lease is of the 
 vesture of the same land, this is held to be a surrender of the first 
 lease. 
 
 So, if the lessee accepts a grant of common, or rent out of the 
 same land, to commence at a certain day within the term {b). 
 
 So, if the grahtee of an office accepts a new grant of the same office, 
 it will be a surrender {c). 
 
 Lessee for years to begin presently cannot, till entry or waiver of 
 the possession by the lessor, merge or drown the same by any express 
 surrender ; because till entry there is no reversion wherein the posses- 
 sion may drown : but if the lessee had entered, and assigned his estate 
 to another, such assignee before entry might have surrendered his 
 estate to the lessor, because by the entry of the lessee the possession 
 was severed and divided from the reversion, which possession, being 
 by assignment transferred to the assignee, may without other entry be 
 surrendered, and drown in the reversion (d). 
 
 If there be two joint-tenants, and one of them have the particular 
 estate, and the other the fee-simple ; as where an estate is limited to 
 two and the heirs of one of them, and he that hath the estate for life 
 aliens his part to a stranger, in this case the alienee may surrender to 
 the other joint-tenant ; — so, if there be three joint-tenants for life, 
 and the fee-simple is limited to the heirs of one of them, and one of 
 the joint-tenants for life releases to the other, and he to whom this 
 release is made surrenders to him that hath the fee-simple, this is a 
 good surrender of a third part, — But otherwise one joint-tenant can- 
 not surrender to another joint-tenant, although he who makes the 
 surrender be tenant for life, and he to whom it is made be tenant in 
 fee-simple {e). 
 
 One executor may surrender an estate or lease for years, which the 
 executors have in the right of their testator (^f). 
 
 But if one enter into land, and make a lease for the trial of the 
 title only, and afterwards the lessor (he and the lessee being both out 
 of possession) make another lease of the same thing to the lessee, it 
 seems this is no surrender of the first lease ; but if the lessor enter 
 before he make the lease, contra (^). 
 
 If the husband have a lease or estate for years in the right of his 
 wife, he alone, or he and his wife together, may surrender it ; but if 
 
 (ii) Cro. Jac. 177. (^) Com. Dig. tit. Surrender. (I. I.) (c) Ibid. 
 
 (/) Bac. Abr. tit. Leases, (z.) (0 Shep. Touch. 303. (/) Ibid. (^) Ibid. 
 
 K
 
 130 Of Terms for Years ahsolutely, [Chap. VI. 
 
 the husband have an estate for life hi the right of his wife, being 
 tenant in dower or otherwise, and he alone, or he and she together, 
 surrender it, this surrender is good only during the life of the hus- 
 band, except it be made by fine [a). 
 
 Lessee for twenty-one years took a lease of the same lands for forty 
 years, to begin immediately after the death of J. S. it was held, that 
 this was not any present surrender of the first term, because J. S. 
 might wholly outlive that term, and then there would be no union to 
 work a surrender ; and it being in equilibrio in the mean time, whether 
 he will survive it or not, the first term shall not be hurt till that con- 
 tingency happens, for if J, S. die within the first term, then what 
 remains of it is surrendered and gone by the taking place of the se- 
 cond (3). 
 
 Although the statute of Frauds directs that the deed or notice in 
 ■writing shall be signed by the surrenderor, yet where an agreement 
 was entered into between the lessor and lessee, at the instance of the 
 former, for the surrender of a lease, an assignment actually prepared, 
 the key delivered up and accepted, and a long acquiescence on the 
 part of the lessor, without any claim or demand upon the lessee ; it 
 was decreed in equity that the lessee should be discharged of the rent 
 from the time he had delivered up the key (c). 
 
 But (J) if in a lease determinable on three lives, it is covenanted 
 that on the death of one, the lessee may if he please surrender, and 
 that the lessor shall thereupon and upon payment of a fine, grant a 
 new lease for three lives in the terms of the old lease, and in a new 
 lease there is a covenant to surrender the same absolutely, as a life 
 drops equity will assist the lessee to retain possession as if the prior 
 lease had continuance [e). 
 
 If lessee re-demise his whole term to his lessor, it is a surrender in 
 law, and as fully as if it had been actually surrendered : and this not- 
 withstanding a reservation of rent be made {/). 
 
 So, where a lease came into the hands of the original lessor, by an 
 agreement entered into between him and the assignee of the original 
 lessee, " that the lessor should have the premises as mentioned in the 
 lease, and should pay a particular sum over and above the rent an- 
 nually, towards the goodwill already paid by such assignee," it was 
 adjudged that such agreement operated as a surrender of the whole 
 term (g). 
 
 But if a lessee reserve to himself any interest in or part of the 
 estate, it is no surrender. For if lessee for years makes a lease to his 
 lessor for all but a day, this is clearly no surrender of his lease, be- 
 cause the day disjoins the union, and prevents the merger which 
 
 (<i) Shcp. Touch, ul ante. {L) Bac. Abr. tit. Leases. (S. 53.) (<;) Bac. on Leases, an. 
 [j) 9 Mod. 56. (/) 4 Bro. R. 419. (/) a Mod. 175. (^) I T. 441. 
 
 6
 
 Sect. 1 1. 3 or on Condition^ S^c. ISl 
 
 would have followed if the lease had been for the whole term ; for 
 then the lessor would have had the whole estate entire in him, as he 
 had before he made the lease, and consequently the lease would be 
 merged and drowned in the reversion (a). 
 
 So, if he lease to his lessor for the lessor's life ; for he has a possi- 
 bility to have it again [b). 
 
 An agreement between the lessor and a stranger that the lessee shall 
 have a new lease, is no surrender (c). 
 
 If lessee accepts a new lease in trust for another, it is no sur- 
 r.ender [d). 
 
 So, if he accepts a grant of a thing consistent with the lease of the 
 land, it is no surrender : as if the lessee of a manor accepts the grant 
 of a bailiwick, or the stewardship of the same manor, for it is col- 
 lateral ; so if he accepts the office of parkkeeper of the same park for 
 his life, that is no surrender, for the same reason {e). 
 
 But where lessee for years of an advowson was presented to the ad- 
 vowson by the lessor, it was adjudged to be a surrender of his term (^f). 
 
 So, if a copyholder in fee takes a lease for years of the same land, 
 it is an extinguishment of his copyhold in perpetuum : but if he take 
 a lease for years of the manor, that is but a suspension of his copy- 
 hold during the term {g). 
 
 It is said, that if a man hath lands in J. and other lands in B. and 
 lets those in A. for twenty-one years, and the next day lets all his 
 lands in B. for ten years, it is not any surrender of the lands In J. 
 but shall be construed as a lease of all the other lands ; which may 
 well stand with the former lease {h). 
 
 So i'f a lessee take a grant of a rent-charge out of the same land 
 for life, or if a lessee for life take a grant of a rent-charge for years, 
 that is not any surrender, because he might have the benefit of that 
 rent after the estate in the land is determined : but if a lessee for life 
 take a grant of a rent-charge for life out of the same land, that is a 
 surrender, for otherwise the rent- charge cannot take any effect. 
 
 So it is said, if the lessor grants a rent, common, ^c. out of the 
 land to his lessee, without saying at what time it shall commence, it is 
 no surrender ; but it shall be intended after his term {i). [But qitare 
 this ? for if the delivery of the deed constitute the commencement, 
 as it does in all cases where no date occurs or period is fixed, it seems 
 it would be a surrender.] 
 
 So, if the king grant an office by patent, or make a demise for 
 years, the acceptance of a new patent in the one case, or of a new 
 lease in the other, is no surrender of the first grant {k). 
 
 (a) Com. Dig. tit. Surrender, (H.) (I/, a.) Bac. Abr. tit. Leases. (S. 3.). 
 
 (*) Com. Dig. ut ante. {c) Cro. Eliz. 173. (,/) Com. Dig. ut ante. 
 
 (0 Cro. Jac. 176. (/) Ibid.84. (f) Ibid. (/-) Cro. Jac. 177. 
 
 (»■) Com. Dig. ut ante* (i) Cro. Car. 197. 
 
 K2
 
 132 Of Terms for Years ahsohitelrj , [Clinp. VI. 
 
 A fine levied by a tenant for life to a reversioner in fee, to the use 
 of the conusee and his heirs, upon condition broken to the use of the 
 conusor for life, and one year over, is not a surrender [a). 
 
 No surrender, express or implied, in order to or in consideration of 
 a new lease, will bind, if the new lease is absolutely void ; for the 
 cause, ground, and condition of the surrender fails ; it is not indeed 
 reasonable in itself, nor can it be the intent of the parties, that an 
 acceptance of a bad lease, should be an implied surrender of a good 
 one. Indeed a void contract for a thing that a man cannot enjoy, 
 cannot in common sense and reason imply an agreement to give up a 
 former contract [b). 
 
 The mere cancelling in fact of a lease is not a surrender of the term 
 thereby granted within the statute of Frauds, which requires such 
 surrender to be by deed or note in writing, or by act or operation of 
 law; nor is a recital in a second lease, that it was granted in part con- 
 sideration of the surrender of a prior lease of the same premises, a 
 surrender by deed or note in writing of such prior lease. Where 
 tenant for life with a power for leasing, in consideration (as recited) 
 of the surrender of a prior term of ninety-nine years, and certain 
 charges to be incurred by the tenant for repairs and improvements, 
 isc granted to him a new lease of the premises for ninety-nine years, 
 by virtue of the power, which new lease was void by not following 
 the directions of the power, it was held that the second lease being void 
 under the power should not operate in law as a surrender of the prior 
 term, though the indenture of lease were in fact cancelled and deli- 
 vered up when the new lease ware granted (r). 
 
 So, if a surrender is intended for a particular purpose, and that 
 purpose (the only motive of it) fails j the surrender ought to fail 
 too [d). 
 
 If therefore the new lease does not pass an interest according to 
 the contract and intention of the parties, an acceptance of it is not 
 an implied surrender of the old lease [e). 
 
 A lessee may surrender upon condition, and if the condition be 
 broken, the particular estate shall be revested (/). 
 
 If lessee agrees to quit upon condition, and the condition be not 
 performed, it does not amount to a surrender of his interest ; as 
 where a person being in possession of premises as tenant from year to 
 ye:>r, under an agreement for a lease of fourteen years, and the rent 
 being in arrear, executed a deed, which stated that he had agreed to 
 quit the premises, and that a valuation was to be made of his effects, 
 which were in the mean time to be assigned to a trustee for the land- 
 lord, and the deed accordingly assigned the effects upon trust to have 
 
 (,.) Cro. Klix. 688. (//) 3 Burr. 1807. 4 Burr. 1980. (t) 6 East, 661. 
 
 (,/) 3 Burr. 1807. -1 Burr. 1980. {t) Com, Die. tit. Est.ires. (G. 13.) 
 
 (/) Co. Lit. ai8 1..
 
 Sect. II.] or on Condition, t^-c. 133 
 
 the valuation made, and out of the aniouiit to retaui the arrears of 
 rent, and pay the residue to the tenant ; but the tenant did 
 not in fact quit possession, nor was any valuation made •, it was 
 held that the agreement to quit being conditional, and the condition 
 not having been performed, nor the agreement in any manner acted 
 upon, it did not operate as a surrender of the tenant's legal term from 
 year to year, and consequently that the landlord's right to distrain for 
 the arrears of rent continued after six months from the making of the 
 deed («). 
 
 If lessee for years surrender his whole term to the original lessor 
 upon condition, he may upon non-performance of the condition re- 
 enter and revive the term [b). 
 
 Leasee for life made a lease for years, rendering rent, and after sur- 
 rendered to the lessor upon condition, then the lessee for years takes a 
 new lease for years of the lessor, and after the lessee for life per- 
 formed the condition, and evicted the lessee for years who re-entered, 
 and the lessee for life brought debt for the first rent reserved ; and it 
 was ruled, that it was not maintainable, for the lease out of which it 
 was reserved is determined and gone -, for though the surrender of the 
 tenant for life, which made the lessee for years immediate tenant to 
 the first lessor, and so enabled him to make such surrender, was con- 
 ditional, yet the defeasance of the estate for life by performance of 
 the condition cannot defeat the estate of the lessee for years, which 
 was absolute and well made, and then the rent reserved thereon is 
 gone likewise (r). 
 
 If lessee for years of^ands accepts a new lease by indenture of part 
 of the same lands, this is a surrender for that part only, and not for 
 the whole, because there is no inconsistency between the two leases 
 for any more than that part only which is so doubly leased ; arid 
 though a contract for years cannot be so divided or severed, as to be 
 avoided for part of the years, and to subsist for the residue, either 
 by act of the party or act in law, yet the land itself may be divided 
 or severed, and he may surrender one or two acres, either expressly 
 or by act of law, and the lease for the residue will stand good and 
 untouched {d). 
 
 As to surrenders of leases /// futuro or future interests, a lessee for 
 years of a term to begin at a day to come cannot surrender it by an 
 actual surrender before the day of the term begin. But he may by a 
 surrender in law (e). 
 
 To make a good surrender in deed of lands, these things are re- 
 quisite. I. That the surrenderor be a person able to make, and the 
 surrenderee a person capable and able to take and receive a surrender^ 
 
 (j) 12 East, 134. (Jo) 2 Mod, 176, (c) Bac. Abr. tit. Leases. (S. 3.) 
 
 (1/) Bac, Abr. lit. Leases. (D. 3.) («) Shep. Toiicli. 304. Cro. Eliz. JZ2. 605.
 
 134 Of Terms for Years absolutely, [Chap. VI. 
 
 and that they both have such estates as are capable of a surrender ; 
 and for this purpose, that the surrenderor have an estate in possession 
 of the thing surrendered at the time of the surrender made ; and not 
 a bare right thereunto only, 2. That the surrender be to him that 
 hath the next immediate estate in remainder or reversion, and that 
 there be no intervening estate. 3. That there be a privity of estate 
 between the surrenderor and surrenderee. 4. That the surrenderee 
 have a higher and greater est-ite in the thing surrendered than the 
 surrenderor hath, so that the estate of the surrenderor may be drowned 
 therein. 5. That he have the estate in his own right, and not in the 
 right of his wife, ^c. 6. That he be sole-seised of this estate in re- 
 mainder or reversion, and not in joint-tenancy (a). 
 
 Such persons, therefore, as are disabled to grant, are disabled to 
 surrender (i^) ; and such persons as are disabled to take by a grant, are 
 disabled to take by a surrender : so such persons as may be grantees 
 may be surrenderees, therefore a surrender to an infant is good, pro- 
 vided it be a surrender in law, by the acceptance of a new lease, and 
 that such new lease increase his term or decrease his rent ; a surrender 
 by an infant-lessee by deed is absolutely void (c). 
 
 In respect to pleading a surrender ; if a surrender be by acceptance 
 of a new lease, it is not good to say, that the lessee being possessed of 
 a former lease, the lessor demised to him ; but that the lessee surren- 
 dered and then the lessor demised, or that the lessor entered and de- 
 mised (d). 
 
 So, regularly he ought to plead that he surrendered the estate and 
 land i but if the party plead a surrender of a lease, it is sufficient to 
 say, " the demise aforesaid." 
 
 So, regularly he ought to shew, that the lessor assented to the sur- 
 render, where the other party pleads or brings an action in disaffirm- 
 ance of it ; but it is not of necessity, and the omission will be aided 
 after verdict (e) : and when it is pleaded that the lessor agreed to the 
 surrender, it shall be intended that he entered ; and it is not usual to 
 plead a re-entry upon a surrender, no more than when a feoffment is 
 pleaded, to plead livery and seisin thereof ; because it is admitted (f). 
 
 A surrender has in certain circumstances been presumed, where 
 evidence of the fact was not to be had : indeed, the Court will, not 
 require positive proof of a surrender in any case where there is suf- 
 ficient presumption of it (g). 
 
 But there must be presumption of the surrender from some facts or 
 circumstances ; for length of time alone is nothing : and though the 
 Court in one case did lay it down that after a recovery of forty years 
 standing, they would without any other circumstances, presume a 
 conditional surrender to have been made by the tenant for life, yet 
 
 (a) Shrp, Touch. 303. (i) Ibid. (0 Cro. Car. 504. 
 
 (J) Com. Dig. tit. Surrender. («). (e) Ibid. (/) Cro. Car. joi. (^) 2 Burr. 72.
 
 Sect. II. j or on Condition^ cj-c. 1 3.5 
 
 there were other circumstances in the case to induce the supposition 
 of a surrender having been made. So where possession had not gone 
 with the recovery, the Court will not presume a surrender by the te- 
 nant for life. — Entry in an attorney's book was admitted in evidence 
 on the subject (a). 
 
 A surrender of a lease was presumed in order to let in the statute 
 of limitations (^). 
 
 0/ the renewal of Leases. — Concerning the renewal of leases, some 
 nice points occur in the books, touching the construction of covenants 
 for that purpose. 
 
 A. and B. covenant in a lease for sixty-one years, that at any time 
 within one year after the expiration of twenty years of the said term 
 of sixty-one years, upon the request of the lessee and his paying 61. 
 to the lessors, they would execute another lease of the premises unto 
 the lessee for the further term of twenty years, to commence from 
 and after the expiration of the said term of sixty-one years, ^c. and 
 so, in like manner, at the end and expiration of every twenty years, 
 during the said term of sixty-one years, for the like consideration and 
 upon the like request, would execute another lease for the further 
 term of twenty years, ^c. to commence at and from the expiration 
 of the term then last before granted, ^c. Under this covenant, the 
 lessee cannot claim a further term at the end of the first and second 
 twenty years in the lease ; for this is an agreement on the part of the 
 lessor to grant a further lease on a precedent condition to be per- 
 formed by the lessee, which in the principal case he had not done (f ). 
 
 Under a devise of seven different estates, to a sister, brothers, and 
 nephews respectively, one to each stock including as to six of the es- 
 tates three several lives in succession, on each estate ; and as to the 
 seventh, which, in the first instance, was only limited to two persons 
 for life in succession, giving those two a power to add another life or 
 lives to make three, in like manner as afccr-vncntioned for other per- 
 sons to do the same, and then giving this general power, that when 
 and so often as the lives on either of the estates before given shall be 
 by death reduced to two \ that then it shall be in the power of the 
 person or persons then enjoying the said estate or estates to renew the 
 same with the person, or persons, to whom the revenue thereof shall 
 belong, by adding a third life in such estate, and paying such rever- 
 sioner two years' purshase for such renewal, and also to exchange 
 either of the said two lives on payment of one year's purchase : Held 
 that this power of renewal only authorized the addition of one life to 
 the three on each estate, and of making one exchange of a life (d). 
 
 "Where a lessor covenants that if a lessee surrender at any time du- 
 ring the term, he will grant him a new lease, and then accepts a fine 
 
 (a) J Burr. 1075. (*) I Burr. ia6. (^) x T. R. 229. (</) 10 East, 549.
 
 136 Of Ter^ms for Years absolutely^ [Chap. VI. 
 
 of the premises ; this is a breach of the condition, and in an action of 
 debt on bond for the performance of covenants, the lessee need not 
 shew that he offered to surrender {a). 
 
 If a lease for ninety-nine years, determinable on three lives be con- 
 veyed in trust for A. for life, and A. covenant to use his utmost en- 
 deavours, as often as any of the persons on w^hose lives the premises 
 are held shall die, to renew the same by purchasing of the lord of the 
 fee a new life in the room of such as shall fail, it is no breach of the 
 covenant if upon one of the lives falling he procure a renewal upon 
 his own life [b). 
 
 A lease was for twenty-one years \l. rent, with covenant to tenants 
 to renew from twenty-one years to twenty-one years, to make up 
 ninety-nine years ; at the expiration of the first term, an arrearof rent 
 being due and no application being made for a renewal, the lessor 
 brought an ejectment and obtained judgment and possession ; on a bill 
 filed in Chancery for a renewal on payment of the rent in arrear and 
 interest, it was decreed ; the delay being accounted for, and there being 
 no neglect on the part of the lessee or prejudice to the lessor [c). 
 But where it was covenanted that the lessor would renew whenever 
 any life or lives dropped, provided that if the lessee, his executors, 
 or administrators, upon or after the death of any of the life or lives, 
 shall refuse or neglect to renew the said lease or make application 
 therein, ^c. or tender such new lease, and pay or tender a certain 
 fine, l^c. then the indenture, ^c. to be void : by such neglect the 
 lessee forfeits his right of renewal, and may, it seems, be ejected for 
 not applying when the first life dropped {^d). 
 
 An agreement was in writing between landlord and tenant, signed 
 by the landlord, for a new lease to be granted at any time after the 
 completion of the repairs to be made by the tenant with all conve- 
 nient speed, but blanks were left for the day of commencement ; the 
 repairs being completed, the landlord tendered a lease to commence 
 from that time, and on refusal filed a bill in Chancery for specific 
 performance ; the answer admitted that the agreement was accepted ; 
 but insisted that the new lease was not to commence till the expiration 
 of the old ; and so was it decreed, parol evidence in explanation being 
 refused {e). 
 
 The lessor of the plaintiff, a prebendary of Sarum, brought an 
 ejectment to avoid a lease made by his predecessor, as not being con- 
 formable to the proviso in 32 i/. 8. c. 28. s. 2. which requires that 
 upon renewals, the old lease must be expired, surrendered, or ended 
 within one year next after making the new lease : and his objection 
 was that the surrender of the former lease was with the condition, 
 that if the then prebendary diil not within a week after grant a new 
 
 (./) Cowji. lljy. Cm. Eli/.. 450. 47(;. (/<) i iJos. & Piil. 455. (.) 4 Bi. R. 415- 
 
 (J) .5 Vts. jiiii. 2ys. (,) Ibid. 34.
 
 Sect. II.] or 071 Condition, ^d, 137 
 
 lease for three lives, the surrender should be void ; whereby the whole 
 term was not absolutely gone, but the lessee reserved a power of set- 
 ting it up again. But the court held this to be within the statute, 
 which was that there should not be two long leases standing out 
 against the successor. Here the new lease was made within the week, 
 and from thence it became an absolute sun-ender both in deed and in 
 law ; and the whole was out of the lessee, without further act to be 
 done by him. In the proviso there is the word ended as well as sur- 
 rendered, and can any body say the first lease is not at an end ? This 
 was no more than a reasonable caution in the first lessee to keep some 
 hold of his old estate, till a new title was made him [a). 
 
 Where a lessor covenanted to renew the lease at the request of the 
 lessee within the term ; but the lessee did not request ; his executors 
 however did request within the term : it was objected that the request 
 ought to have been made by the lessee, and not by his executors who 
 might be insolvent persons, and consequently the lessor in danger of 
 losing his rent. But by the Lord Chancellor (Lord Macclesfield) : The 
 executors of every person are implied in himself and bound without 
 naming ; and the meaning of the covenant was to the end that the 
 lessee might be reimbursed the money which he had laid out in the 
 improvement of the premises, for which reason, it is immaterial whe- 
 ther the testator or his executors required the renewal of the lease, it 
 need not be personal. As to the objection that the executors might 
 be insolvent, and such as the defendant would not care to trust, to 
 this it may be answered, that a clause of re entry is in the lease, and 
 the value of the premises being doubled by the improvements of the 
 original lessee, such clause will secure the landlord against any insol- 
 vency of the tenant. The usual term being for twenty-one years, let 
 the defendant demise the premises to the plaintiff for twenty-one years, 
 or for any lesser term, as the plaintiff shall elect : and though the 
 lease is to be made on the same covenants, yet that shall not take in a 
 covenant for the renewing this lease, forasmuch as the lease would 
 never be at an end [b). [Lord Hardwicke said this case did not apply 
 as an authority on the subject, being rather like an award and a com- 
 promise, than a decree [c). But vide post, 3 Ves. Jun. 298.] 
 
 Whether the Lord Chancellor's apprehension in the above case, of 
 the perpetuity of the lease, had he permitted to be inserted " cove- 
 nants for the remaining lease," be well or ill founded seems rather 
 doubtful. 
 
 Indeed., where (d) A. demised to B. for the life of the said B. and 
 also for the lives of C. and D. and covenanted that if B. his heirs, 
 ^c. should be minded at the decease of the said B. C. and D. or any 
 of them, to surrender the said demise and take a new lease, and 
 
 {a} 2 Str. 1201. il>)z.V. Wni3. 197. (<r) 3 Atk.448. Mod. 458. 
 
 (J) Cowp. 8x9. 2 Bi, R. 6.^9. i/i. II.
 
 138 Of Terms for Years absolutely, [Chap. VI. 
 
 thereby add a new life to the then two in being in lieu of the life so 
 dying, that then he the said A. his heirs, i^c. upon payment of 
 every life so to be added in lieu of the life of every of them so dying, 
 would grant a new lease for the lives of the two persons named in the 
 former lease and of such other person, as the said B. his heirs, ^c. 
 should appoint in lieu of the person named in the preceding lease, as 
 the same should respectively die ** under the same rents and coven- 
 ants :" There had been successive renewals from the time of a for- 
 mer lease granted by the ancestor of A. and in each a like covenant 
 of renewal. Lord Mansfield. — The question in all these cases is, 
 *' Whether under the same rents and covenants" shall be construed 
 inclusive or exclusive of the cause of renewal. Arguments drawn 
 from every part of the agreement are material : here the parties them- 
 selves have put the construction upon it ; for there have been frequent 
 renewals, and in all of them the covenant of renewal has been uni- 
 formly repeated. How then shall the Court say the contrary ? — 
 Willes, J. The act of the parties seems to differ in this case from all 
 the cases cited j here there have been four or five renewals all in the 
 same terms. I do not think otherwise that Furnival and Crewe {a) 
 would be a sufficient authority alone to determine this case ; because 
 there, the additional words, " and so to continue renewing from time 
 to time," were inserted. But the case of Bridges v. Hitchcock is very 
 much the same as this : for there the words were, ** under the same 
 rents and covenants," and no other words. I cannot say that in this 
 country this kind of lease should be much favoured, though the in- 
 ducement for granting them in Ireland may be a good one. Ashurst^ J. 
 I think this is a very hard case on the part of the lessor, and there 
 does not seem any mutuality, as in the case of improvement of 
 Jands. But inasmuch as there have been four successive renewals, the 
 lessor himself has put his own construction upon the covenant : and 
 therefore is bound by it. Buller, J. I think the case of Bridges v. 
 Hitchcock {b) decides this. In that case, both the House of Lords 
 and the Exchequer determined, that the words " under the same 
 rents and covenants" in the tiew lease, contained a perpetual covetiant 
 to renew. 
 
 But the judgment of the Master of the Rolls (Lord Alvanley), in 
 Baynham v. Guys Hospital (c), (in which case a right of renewal was 
 held to be forfeited by the laches of the tenant) seems to demolish a 
 doctrine which goes to establish a perpetuity, which the law abhors. 
 Master of the Rolls. — I strongly protest against the argument used 
 by the learned judges in Cooke v. Booth, Cowp. 819. as to construing a 
 legal instrument by the equivocal acts of the parties and their under- 
 standing upon it ; which I will never allow to affi;ct my mind. That 
 
 (a) 3 Atk. 83. (i) I Br. l\ C. J 11. (0 3 Vcs. jun. 198.
 
 Sect. II.] ^^ ^^* Condition, ^c, 139 
 
 case was sent to law by Lord Bathurst. The learned judges thought 
 fit to return an answer to the Chancellor, that the legal effect was a 
 perpetual renewal, upon the ground, that by voluntary acts, which 
 the parties might or might not have done, the parties themselves had 
 put a construction upon it. Mr. J. Willes stated, that as his only 
 ground ; Lord Mansfield made it his chief ground ; but that ground 
 was disapproved by Lord Thurlow ; and is, J think, totally un- 
 founded. I never will construe a covenant so. I never was more 
 amazed ; and Mr. J. Wilsoriy who argued it with me, was astonished 
 at it. When it came back, Lord Bathurst not having retained the 
 great seal long enough for it to come again before him, it came to 
 Lord Thurloivy who said that, sitting as Chancellor, when he asked 
 the opinion of a court of law, whatever his own opinion might be, 
 he was bound by that of the court of law : therefore he decreed a re- 
 newal, but said he should be very glad if Mr. Booth would carry it 
 to a superior tribunal. We had a consultation, and I wrote to Mr. 
 B. upon it ; but he, being only tenant for life, refused to appeal. 
 There stands the case of Cooke v. Booth. I see I have put a note upon 
 that case referring to Triiton v. Foote (a), (in which case it was holden 
 that a covenant to renew under the same covenants, is exclusive of 
 the covenant of renewal) which is a positive determination against 
 the claim. I collect, therefore, from these cases, this ; that the 
 courts in England at least, lean against construing a covenant to be 
 for a perpetual renewal, unless it is perfectly clear that the covenant 
 does mean it. Furnival v. CrewCy relied on in Cooke v. Booth, had 
 clear words for a perpetual renewal, which made it impossible to 
 construe it otherwise. 
 
 One in consideration of 5/. 8x. in nature of a fine and of a yearly 
 rent of 6s. gd. demised certain grounds with the buildings, ^c. for 
 twenty-one years with a proviso for distress, if the rent were in 
 arrear for fourteen days, and the lessor covenanted at the end of 
 eighteen years of the term, or before on request of the lessee, to grant 
 a new lease of the premises for the like fine for the like term of 
 twenty-one years at the like yearly rents with all covenants, grants, 
 and articles as in that indenture contained j held that this covenant 
 was satisfied by the tender of a new lease for twenty-one years, con- 
 taining all the former covenants except the covenants for future re- 
 newal, and held that an averment that the covenant for renewal in 
 the indenture declared on corresponded with various other leases 
 before then successively made by the owners of the inheritance for 
 the time being could not be taken in aid to construe the meaning of 
 the indenture ; for supposing such evidence admissible in any case 
 where the renewals had been uniformly the same, yet tmt constat 
 
 [a) I Br. R. 636.
 
 l^O Of Terms for Years ahsolutelij, [Chaj). VI. 
 
 from this averment that all the former leases contained the same 
 covenants for renewal (a). 
 
 Where a lease contained a covenant for perpetual renewal, a spe- 
 cific performance was refused under circumstances, as laches and al- 
 teration in the property, so that it could not be enjoyed according to 
 the stipulations {b). 
 
 ■ Tenant right of reneivaL — It has long been an established practice to 
 consider those who are in the possession of lands under leases for 
 lives or years, particularly from the crown, colleges, l^c. as having 
 an interest beyond the subsisting term; and this interest is usually de- 
 nominated " the tenant-right of renewal," which though not any 
 certain or even contingent estate, there being no means of com- 
 pelling a renewal, yet is so adverted to in all transactions relative 
 to leasehold property, that it influences the price in sales, and is often 
 an inducement to accept of it in mortgages and settlements (£•), 
 
 For other cases on this subject we refer to the cases cited below [d). 
 cautioning the reader at the same time against an implicit reliance, as 
 on the authority in points applicable to English law, on the Irish 
 cases, which turned (as has been observed) on a local equity. 
 
 By the statute 4 G. 2. r. 28. which recites, that whereas many per- 
 sons hold considerable estates by leases for lives or years, and lease 
 out the same in parcels to several under-tenants, and whereas many 
 of those leases cannot by law be renewed without a surrender of all 
 the under-leases derived out of the same, so that it is in the power 
 of any such under-tenants to prevent or delay the renewing of the 
 principal lease, by refusing to surrender their under-leases, notwith- 
 standing they have covenanted so to do, to the great prejudice of 
 their immediate landlords the first lessees; for preventing such incon- 
 veniences, and for making the renewal of leases more easy for the 
 future, it is enacted, that in case any lease shall be duly surrendered 
 in order to be renewed ; and a new lease made and executed by the 
 chief landlord or landlords, the same new lease shall, without a sur- 
 render of all or any the under-leases, be as good and valid to all in- 
 tents and purposes as if all the under-leases derived thereout had 
 been likewise surrendered at or before the taking of such new lease \ 
 and every person, ^c. in whom any estate for life or lives, or for 
 years, shall be vested by virtue of such new lease, and his i!fc. exe- 
 cutors and administrators shall be intitlcd to the rents, covenants, 
 and duties, and have like remedy for the recovery thereof, and the 
 under-lessees shall hold and enjoy the messuages, lands and tene- 
 ments, in the respective under-leases comprised, as if the original 
 leases, out of which the respective under-leases are derived, had 
 liccn still kept on foot and continued ; and the chief landlord and 
 
 [a) 7 East, lyi. 1 15o:,. ;v I'ul. N. R. 4-J';- {!>) i'\ Vcs. 449- (') 5 ^'- I'^''- ^^'• 
 
 (rf) I Ik. P, C. i40. alii. ,-ii-l- S- S 131- !'• C. 20. 31. 2 Di. R. 6.!9. in «.
 
 Sect. II.] or on Conditio?!, S;c. 141 
 
 landlords shall have the same remedy by distress and entry upon the 
 messuages, Cffr. for rents, &c. reserved by such new lease, so as the 
 same exceed not those reserved in the kast out of which such under- 
 lease was derived, as they would have had in case such former lease 
 had been still continued, or the under-lease had been renewed under 
 such new principal lease, j". 6. 
 
 4. Termination by cancelling the Deed. — A fourth means whereby a 
 lease may be [or rather might have been] determined, is by cancelling 
 the deed by which it is granted. 
 
 Whatever doubts may have been formerly entertained as to the 
 effect of erasing or otherwise cancelling a lease for years, now, since 
 the statute of Frauds and Perjuries, stat. 29 C. 2. ^. 3. which makes 
 all leases for above three years to have only the force and effect of 
 leases at will, unless they be in writing, and signed by the party, 
 isfc. the deed or writing, whereby such lease is made, seems to be of 
 the same essence as the lease itself, and therefore the cancelling or 
 destruction of that seems to destroy and avoid the lease itself, be- 
 cause it destroys all evidence allowed by law for the support thereof : 
 though in such case Chancery frequently sets up the lease again, or 
 decrees the party to execute a new one for the residue of the term ; 
 which is not against the prohibition of the act; because there was 
 once a good and effectual lease made pursuant to the statute (o). 
 
 Though that statute excepts leases not exceeding the term of three 
 years, yet even these are not absolutely excepted ; for it goes on, not 
 exceeding the term of three years from the making thereof, where- 
 upon the rent reserved to the landlord during such term shall amount 
 unto two-third parts at least of the full improved value of the thing 
 demised, and that no leases, estates, or interests either of freehold 
 or terms for years, or any uncertain interest, not being copyhold or 
 customary interest of, in, to, or out of any messuages, manors, 
 lands, isfc. shall be assigned, granted, or surrendered, unless it be 
 by deed or note in writing signed by the party so assigning, granting, 
 or surrendering the same, or their agents thereunto lawfully autho- 
 rized by writing, or by act and operation of law. 
 
 Since the above statute, therefore, it should seem that a deed can- 
 not be determined by cancellation of the indenture, for that the 
 surrender by deed or note in writing was especially prescribed in lieu 
 thereof. 
 
 The mere cancelling, in fact, of a lease, is not a surrender of the 
 term thereby granted, within the stat. of Frauds, which requires 
 such surrender to be by deed or note in writing or by act or operation 
 of law [b). 
 
 0<) Bac. Abr. tit. Leases. (T.) (i) 6 East, 66i.
 
 142 Of Terms for Years absolutely i [Chap. VI. 
 
 5. Term'tnattoti by condition indorsed. — A lease may also be determined 
 by force of a condition indorsed upon the back side thereof, if it be 
 before the ensealing and delivery j as well as by force of a condition 
 within the deed [a). 
 
 A proviso in a lease for twenty-one years, that if either of the 
 parties shall be desirous of determining it in seven or fourteen years, 
 it shall be lawful for either of them, his executors or administra- 
 tors, so to do, upon twelve months' notice to the other of them, his 
 heirs, executors or administrators, extends by reasonable intend- 
 ment, to the devisee of the lessor, who was entitled to the rent and 
 reversion [b). 
 
 It is now clearly held, that to avoid the consequences of bank- 
 ruptcy, a landlord may take a clause that the lease shall determine on 
 the bankruptcy of the tenant ; and many prudent men take such a 
 clause (c.) 
 
 6. Termination by forfeiture of the Lease. — The sixth and last mode by 
 which a demise may be determined is by forfeiture of the lease. 
 
 Any act of the lessee, by which he disaffirms or impugns the title 
 of his lessor, occasions a forfeiture of his lease ; for to every lease 
 the law tacitly annexes a condition, that if the lessee do any thing 
 that may affect the interest of his lessor, the lease shall be void, and 
 the lessee may re-enter ; besides, every such act necessarily deter- 
 mines the relation of landlord and tenant ; since to claim under an- 
 other, and at the same time to controvert his title ; to affect to hold 
 under a lease, and at the same time to destroy that interest out of 
 -which the lease arises, would be the most palpable inconsistency {d). 
 
 A lessee may thus incur a forfeiture either by act in pais, or by 
 matter of record. By matter of record : where he sues out a writ or 
 resorts to a remedy which claims or supposes a right to the freehold ; 
 or where, in an action by his lessor, grounded upon the lease, he 
 resists the demand under the grant of a higher interest in the land ; 
 or where he acknowledges the fee to be in a stranger : for having thus 
 solemnly protested against the right of his lessor, he is estopped by 
 the record from claiming an interest under him. By act in pais : as 
 where he aliens the estate in fee, which however, (except the king 
 be in remainder or reversion, in which case a feoffment in fee will 
 effect it,) must be by feoffment with livery ; for that only operates 
 upon the possession, and affects a disunion ; it cannot be by grant, 
 or any conveyance operating only on the grantor's interest, and pass- 
 ing only what he may lawfully part with ; nor consequently, can it 
 be of things lying in grant : a lease by the tenant for more years than 
 he has in the land is still more venial ; because it is only a contract 
 
 (a) Cro. Jac. 4j6. (A) li East, 464. (0 15 Ves, jun. a68. 
 
 (</) Bac. on Lcises. 119.
 
 Sect. II.] or on Condition, ^c, 143 
 
 between him and his under-lessee (or rather assignee) which cannot 
 possibly prejudice the interest of the original lessor, and does not 
 even pretend to usurp or touch the freehold or inheritance (a). 
 
 A forfeiture hj tenant for years in levying a fine, not having been 
 taken advantage of by the entry of the then reversioner to avoid the 
 lease, cannot be taken advantage of after the reversion has been 
 conveyed away, so as to recover the estate in ejectment from the 
 tenant, upon the several demises of the grantor and grantee of such 
 reversion (^). 
 
 A forfeiture is also incurred by the breach of express or conven- 
 tionary conditions : for the lessor, having the Jus disponendi, may 
 annex whatever conditions he pleases to his grant •, provided they be 
 not illegal, unreasonable, or repugnant to the grant itself, and upon 
 the breach of these conditions may avoid the lease [c). 
 
 Therefore, though it has been held that a lessee might make a fe- 
 ofFment, and that notwithstanding the presence of the lessor, for 
 that the lessee has the possession and may dispose of it, yet it was 
 an extinguishment of the lease, and the lessor might enter for the 
 forfeiture {d). 
 
 The law however will always lean against forfeitures, as courts of 
 equity relieve against them : and as courts adhere strictly to the pre- 
 cise words of the condition in order to prevent a forfeiture ; so, 
 where a forfeiture has manifestly been committed, they will not 
 allow the lessor to take advantage of it, if they find that he has 
 afterwards done any act that amounts to a waiver of it 5 as by accept- 
 ance of rent due after the forfeiture incurred, or action brought to 
 recover the same {e). 
 
 Forfeitures of leases stand on the same ground with forfeitures of 
 copyholds ; and there are a great many cases in the old books, where 
 it is held, that a mere knowledge and acquiescence in an act consti- 
 tuting a forfeiture, does not amount to a waiver, but there must be 
 some act affirming the tenancy (y). 
 
 The forfeiture must be known to the lessor at the time, in order 
 to render his acceptance of rent or any other act a waiver {g) ; for it 
 has been established in many cases, that acceptance of rent shall not 
 operate as a waiver of the forfeiture, or as a confirmation of the 
 tenancy, unless the landlord has notice that a forfeiture was incurred 
 at the time (h). 
 
 It is also necessary some positive act of waiver should take place. 
 The landlord will not lose his right, by merely lying by, and wit- 
 nessing the forfeiture (however long the period) j but if with a full 
 knowledge thereof, he permits the tenant to expend money in im- 
 
 (a) Bac. on Leases. 119. (*) " ^a^t, 444. {i) 2 T. R. 137. Cowp. 805. 
 
 (<0 Cro. Eliz. 322. (e) Bull. N. P. 96. Bac. on Leases. aa6. 3 T. R. 170. 2 Cowp. 147, 
 (/) 3 Taunt. 80. (f) Cro. Car. 134. (J>) jT. R, 431. Cro, Elia. MO,
 
 144 Of Terms for Years absolutely, [^Chap. VI, 
 
 provements, It is a ground for application to a court of equity for 
 relief; and it seems also to be a circumstance, from which a jury may 
 presume a waiver of the forfeiture (a). 
 
 So, when it is said that a forfeiture may be waived, it must be 
 understood to apply to those cases In which, by the terms of the 
 contract, the estate, upon the tenant doing or failing to do that 
 which he has stipulated to abstain from or to perform. Is determi- 
 nable, and not where It absolutely determines : for. It is to be ob- 
 served, that where the estate or lease Is ipso facto void by the con- 
 dition or limitation, no acceptance of rent afterwards can make It 
 to have a continuance, otherwise it Is of an estate or lease voidable 
 by entry {b). 
 
 If ji. tenant for life subject to forfeiture, remainder over to B. 
 lease to C. for a term, and afterwards, apprehending that he has for- 
 feited, acquiesce in Z).'s claim to and receipt of the rent from C, his 
 executor may, on shewing that he acquiesced under a false apprehen- 
 sion, recover from C. the amount of the rent erroneously paid to B. ; 
 for in order to constitute a confirmation of the payment, some 
 act must appear to have been done by ^. with knowledge of his 
 own situation. — Suppose, said Mr. J. Bul/er, that one disseises an- 
 other of an estate and continues In possession of the rents and profits 
 with the knowledge of the disseisee, will any body say that the dis- 
 seisee shall not recover against the teAs*nt (c) ? 
 
 Of Leases in reversion. — With respect to leases in reversion. It Is to 
 be observed that " all leases where there Is a particular estate out, are 
 leases in reversion (d)." 
 
 Thus if one lets a manor for thirty years, and the next day lets it to 
 another for forty years to commence from Michaelmas next after the 
 date, this passes a reversionary Interest ; for the lease being for years 
 Is a chattel which may well expect or wait -, and if I have a rent In fee, 
 I may grant it for years to commence at Michaelmas ; for an estate 
 doth not pass, but an interest. 
 
 So, a husband may make a lease of lands held in joint-tenancy with 
 his wife, to commence after his death, and it will be good though the 
 wife survive : for the husband having an interest to dispose of in his 
 life, he might dispose of all the term, and it should bind the wife ; so 
 when he hath disposed by an act executed In his life of the Interest of 
 the term, and hath created a term in Interest, this Is as good as if he 
 had granted all the term [e). 
 
 As to the manner of making such leases for years where there is a 
 prior lease or estate then in being, they cannot be made by parol lease ; 
 for independent of the statute of Frauds, a deed is of the very essence 
 of the grant of a reversion, or reversionary Interest, and without it 
 
 (-) 3 I'aunt. 7?.. (^) Doui;. 57- (a9-) (0 » ^- ^ ^^- 3l6. 
 
 . (./; Doiip. 568. (r) Cro. Kliz. *87. 
 
 7
 
 Sect. II.] , or on Condition, i^r. 14.5 
 
 no reversion or reversionary interest can pass out of the lessor. Such 
 leases therefore must be made by cither deed-poll, or indenture [a). 
 
 If one makes a lease for life, and afterwards giants that the lands or 
 reversion shall remain to another for twenty-one years after the death 
 of the tenant for life, these words are sufficient to pass a reversionary 
 interest by way of future lease without attornment, though there is not 
 the word " demise," or any other word usual or proper to describe a 
 lease for years by; for here, being words sufficient to prove a present 
 contract for the reversionary intei^est of these lands, after the estate for 
 life determined, these, in case of lease for years, which is but a con- 
 tract, are in themselves sufficient, and adequate to any other form {b). 
 
 A lea.se in reversion of several parcels of land, made to commence 
 on the happening of several contingencies, shall (as has been ob- 
 served) take effect and commence respectively as those contingencies 
 happen (f). 
 
 If one had made a lease for life, or for eighty years, if the lessee 
 should so long live, and after by indenture let the same lands to 
 another for years to begin presently, and then the first lease deter- 
 mined by death, surrender, or forfeiture, the second lessee should 
 have the lands in possession presently for the residue of the years, 
 because such second lease, by reason of the estoppel, took effect be- 
 tween the parties presently, and therefore shall come in possession 
 whenever the first lease is out of the way ; but if such second lease 
 had been only by deed-poll, there must have been an attornment to 
 have made it good as a grant of the reversion, as there must likewise 
 in the other case, where it was made by indenture •, and without such 
 attornment the second lease could only have taken effect in possession 
 upon the determination of the first lease by the death of the lessee ac- 
 cording to the express limitation ; and not upon any sooner or other 
 determination by surrender, forfeiture, or otherwise {d). 
 
 The nature of a lease in reversion we have more particularly ex- 
 plained in Chap. III. Sect. VII. 
 
 Of Attornment. — Touching the subject of attornment, (which now 
 exists scarcely in any case) it may be as well to observe, that after the 
 statute quia emptores terrarum [e) was passed, by which subinfeudation 
 was prohibited, it became necessary that when the reversioner or re- 
 mainder-man after an estate for years, for life, or in tail, granted his 
 reversion or remainder, the particular tenant should attorn, or consent 
 to pay his rent, Is'c. to the grantee. This necessity of attornment was 
 in some degree diminished by the statute of uses {f)y as by that statute 
 the possession was immediately executed to the use ; and by the 
 statute of wills, by which the legal estate is immediately vested in the 
 devisee : attornments however are now rendered almost unnecessary 
 
 {a) Bac. Abr. tit. Leases. (N.) {b) Ibid. (K.) (<:) Cro. Eliz. 199. 
 
 {d) Bac. Abr. tit. Leases. (N.) (») 18 E. i. St. i. (/) z^ H. 8. c. 10. 
 
 L
 
 146 Of Terms for Years absolutely^ [Chap. VI, 
 
 in any case, by the statute of Anncy which enacts that all grants and 
 conveyances of manors, lands, rents, reversions, ^c, by fine or other- 
 wise, shall be good without the attornment of the tenants j but notice 
 must be given of the grant to the tenant, before which he shall not be 
 prejudiced by payment of any rent to the grantor, or of breach of the 
 condition for non-payment («). Also, by an act (b) in the last reign, 
 attornments of lands, l^c. made by tenants to strangers claiming title 
 to the estate of their landlords shall be null and void, and their land- 
 lord's possession not affected thereby : the statute, however, does not 
 extend to vacate any attornment made pursuant to a judgment at law, 
 or with the consent of the landlord ; or to a mortgagee on a forfeited 
 mortgage. 
 
 Of Estoppel. — Leases for years sometimes enure by way of estoppel, 
 which word signifies an impediment or bar to a man's invalidating his 
 own solemn act. 
 
 Therefore, if one makes a lease for years, by indenture, of lands 
 wherein he hath nothing at the time of such lease made, and after- 
 wards purchase those very lands, this shall make his lease as good and 
 xmavoidable as if he had been in the actual possession and seisin there- 
 of at the time of such lease made ; because he having by indenture 
 expressly demised those lands, is by his own act estopped and con- 
 cluded to say that he did not demise them, and if he cannot aver that 
 he did not demise them, then there is nothing to impeach the validity 
 of the indenture, which expressly aflirms that he did demise them, 
 and consequently the lessee may take advantage thereof, whenever 
 the lessor comes to such an estate in those lands as is capable to sustain 
 and support that lease ; for an estoppel that affects the interest of the land 
 shall run nuith it into whose hands soever the land comes [c). 
 
 But if it appear, by recitals in the lease, that he had nothing at the 
 time of the demise, and afterwards he purchases the lands as afore- 
 said, that will not enure by estoppel {d). 
 
 This estoppel by indenture is so mutual and reciprocal, that if a 
 man takes a lease for years by indenture of his own lands, whereof 
 he himself is in actual seisin and possession, this estops him during 
 the term to say that the lessor has nothing in the lands at the time of 
 the lease made, but that he himself or such other person was then in 
 actual seisin and possession thereof ; for by acceptance thereof by in- 
 denture, he is for the time as perfect a lessee for years, as if the 
 lessor had at the time of making thereof the absolute fee and inherit- 
 ance in him. But if such lessee of his own lands, being ejected by 
 the lessor, should bring an ejectment, and the lessor should plead not 
 guilty, and give the lease and some matter of forfeiture thereof in 
 
 {a) ViHc 34 tc 35 H. 8. c. 5. 4 Ann. c. 16. s. 9. 1 T. R. 379. {b) n G. z. c. 19. 
 
 (f) Bnc. Abr. tit. Liases. (O.) 6 Mod. 258. % \A. Kaym. 1048. s. c. i Salk. %li>. s. c. 
 3 T. R. 371. (c/) I L(l« Kaym. 729.
 
 Sect. II.] or on Condition^ ^x. 147 
 
 evidence to support his plea, without pleading, and relying on the 
 estoppel, and the jury should find the special matter, viz. that the 
 defendant had nothing in the lands at the time of such lease made, 
 but that the plaintiff himself was then in actual seisin and possession 
 thereof, whether the Court, upon this verdict, are bound to adjudge 
 according to the truth of the case, namely, that such lease by one 
 who had then nothing in the lands was void ; or if they are to adjudge 
 according to the law, working by way of estoppel upon such lease by 
 indenture, seems to be a doubt upon the books ; but Lord Cohe lays 
 it down for a rule, that the jury do well to find the truth, viz. that 
 the lessor had then nothing in the land ; but then upon such finding, 
 the Court is to adjudge, according to the operation of law upon the 
 estoppel wrought to both parties by the indenture, that they are 
 bound : and this seems to be the better opinion [a). 
 
 Therefore in debt for rent upon an indenture, if the defendant 
 plead nil debety he cannot give in evidence that the plaintiff had no- 
 thing in the tenements, because if he had pleaded it specially, the 
 plaintiff might have replied the indenture, and estopped him, or might 
 demur, for the declaration being on the indenture, the estoppel ap- 
 pears on record. But if defendant plead nihil hahuity tsfc, and the 
 plaintiff will not rely on the estoppel, but reply habuity the jury shall 
 find the truth [b). 
 
 But if such lease for years were made by deed-poll of lands, where- 
 in the lessor had nothing, this would not estop the lessee to aver that 
 the lessor had nothing in those lands at the time of the lease made, 
 because the deed-poll is only the deed of the lessor, and made in the 
 first or third person ; whereas the indenture is the deed of both par- 
 ties, and both are, as it were, put in and shut up by the indenture. 
 This however is where both parties seal and execute the indenture as 
 they may and ought, for otherwise, if the lessor only seals and exe- 
 cutes it, the lessee seems to be no more concluded than if the lease 
 were by deed-poll ; for it is only the sealing and delivery of the in- 
 denture as his deed that binds the lessee, and not his being barely 
 named therein, for so he is in the deed-poll ; but that being only 
 sealed and delivered by the lessor, can only bind him, and not the 
 lessee, who is not to seal and execute it : yet it should seem that sucji 
 lease by deed-poll binds the lessor himself as much as if it were by 
 indenture, because it is executed on his part with the very same so- 
 lemnity, and therefore it should seem he is bound by such lease by 
 way of estoppel {c). 
 
 Estoppels ought to be mutual, otherwise neither party is bound by 
 them J therefore, if a man take a lease for years of his own lands 
 from an infant or feme -covert by indenture, this works no estoppel on 
 
 (o) Bac. Abr. ut ante, {b) Bull. N, P. 170. Salk. 277. cited. % lA. Raym. 1154. 1551. 
 (c) Bac. Abr. tit. Leases. (O.) 
 
 L 2
 
 148 Of Terms for Years ahsohttehj, [Chap. VI. 
 
 cither part, because the infant or feme, by reason of their disability 
 to contract, are not estopped ; therefore neither shall the lessee be 
 estopped [a). 
 
 So, if a man take a lease for years of his own lands by patent from 
 the king, rendering rent, this shall not estop the lessee, as an inden- 
 ture between common persons in such case would do, because the 
 king cannot be estopped ; and if he be not estopped, neither shall the 
 lessee {b). 
 
 If one lets lands to me by deed enrolled, unknown to me, and brings 
 debt upon the lease, I may say ne lessa pasy it seem? ; but he who 
 made such lease is concluded to say the contrary, which is in point to 
 establish, that in case of a deed poll (as this which is called a deed 
 enrolled must be intended to be) the lessor himself is estopped, though 
 the lessee be at large : and this cannot be intended an indenture, be- 
 cause then the lessee would have been estopped likewise, if he had 
 sealed it, which in this case it appears he did not, because it was un- 
 known to him, and therefore was not estopped, whether it were by in- 
 denture or deed-poll. 
 
 These estoppels continue no longer on either part than during the 
 lease ; for as they began at first by making the lease, so by determina- 
 tion of the lease, they are at an end likewise, for then both parts of 
 the indenture belong to the lessor (r). 
 
 When an interest actually passes by the lease, there shall be no 
 estoppel ; though the interest purported to be granted be really greater 
 than the lessor at that time had power to grant : as if A. lessee for the 
 life of B. makes a lease for years by indenture, and after purchases 
 the reversion in fee and then B. dieth, A. shall avoid his own lease, 
 though several of the years expressed in it be still to come : for he 
 may confess and avoid the lease which took effect in point of interest, 
 and determined by the death of B. {d). 
 
 If a m.an takes a lease for years of the herbage of his own land by 
 indenture, this is no conclusion to say that the lessor had nothing in 
 the lands at the time of the lease made ; because it was not made of 
 the lands themselves (<?). 
 
 If A. seised of ten acres, and B. of other ten acres, join in a lease 
 for years by indenture, they are several leases according to their se- 
 veral estates, and no estoppel is wrought by the indenture to either 
 party, because each has an estate whereout such lease for years or in- 
 terest may be derived ; and the reason why estoppels are at any time 
 allowed is, because otherwise, when the party had nothing in the 
 lands, the indenture must be absolutely void, which would be hard to 
 say, when the party hath under his hand and seal done all in his power 
 to make it good ; and since it can be good no otherwise, it shall be 
 
 (o) Bac. Ahr. lit. I.casM. (O.) Co. Lit. .^52. (//) Bac. Abr. u/ an/c 
 
 (0 Co. 1-it. 47. Cro. Kliz. 36. (</) Co. Lit. 47. b. (/) Ibid.
 
 .Sect. II.] or on Condi tion, t^c 14^ 
 
 good by estoppel, rather than be absolutely void ; but when an inte- 
 rest passes from each lessor, the indenture works upon such interests 
 to carry that, and therefore leaves no room for its operating by way of 
 estoppel ; but yet, since both equally joined in the lease, without dis- 
 tinguishing the several interests they had therein, the indenture works 
 by way of confirmation, with respect to each from whom the whole 
 interest did not pass •, that is A.'s confirmation for BJs part, and ^.'s 
 confirmation for y^.'s part («), 
 
 So, if two tenants in common of lands join in a lease for years by 
 indenture of their several lands, this shall be the lease of each for 
 their respective parts, and the cross confirmation of each for the part 
 of the other, and no estoppel on either part ; because an actual inte- 
 rest passes from each respectively, and excludes the necessity of an 
 estoppel, which is never admitted, if by any construction it can be 
 avoided, as being one of those things which the law looks upon as 
 odious, because it clokes and disguises the truth (b). 
 
 But if two joint-tenants for life or in fee, join in a lease for years 
 by indenture, reserving the rent to one of them only, this shall give 
 him the rent exclusive of the other : and here the estoppel turns not 
 upon the interest passed by the lease, for that is several according to 
 their several rights as in the other cases, which excludes any estoppel, 
 but it turns upon the reservation of the rent, which being made in 
 this manner, to one exclusive of the other by indenture, works an 
 estoppel against all the parties to say the contrary ; and though the 
 rent issues out of one part as well as the other, yet it not being part 
 of the thing demised, but moving, as it were, rather by way of grant 
 from the lessee after the lease made, the lessors are considered as ac- 
 cepting it in '.his manner by indenture, which concludes them as well 
 as it doth the lessee [c). 
 
 But if the lease had been by parol or deed-poll, reserving rent to the 
 one joint- tenant only, this would not have excluded the other joint-te- 
 nant from an equal share therein ; because this reservation coming, as 
 it were, by way of grant from the lessee, and being only by parol or 
 deed-poll, could not conclude the lessors, who, with respect to the 
 rent, were, as it were, grantees, and only passive ; and the rent shall 
 follow the reversion in proportion to their several estates, and so let 
 in both parties to an equal participation thereof [d). 
 
 If two coparceners join in a lease for years, by indenture, of their 
 several parts, this is said in one book to be but as one lease : because 
 they have not several freeholds therein, but only one, as both making 
 but one heir, and therefore shall join in an assize ; but where in eject- 
 ment the plaintiff declared of a lease by two coparceners quod demise- 
 rutitf exception being taken to it, the exception was allowed, because 
 
 (a) Co. Lit. 45. a. Bac. Abr.lii, Leases. (O.) (i) Ibid. 
 
 (c) Ibid. Co. Lit. 47. a. Gilb. on Rents, 63. (d) Ibid.
 
 150 Of Terms for Years absolK tell/, [Chap. VI. 
 
 the lease was several as to each coparcener for their own respective 
 moiety ; and this seems to be the better law, because though they 
 have but one freehold with regard to their ancestor, and therefore if 
 disseised, shall join in an assize, yet as to their disposing power thereof 
 they have several rights and interests, so that neither of them can 
 lease or give away the whole {a). 
 
 But where the declaration in ejectment was on the joint-demise of 
 ^. and B. and on the evidence it appeared that they were tenants in 
 common, the plaintiiF failed (/'). 
 
 A lease for years may operate as to part by estoppel, and as to the 
 residue by passing an interest (<:). 
 
 Debt on bond conditioned for the performance by ^. G. of all the 
 covenants on his part mentioned in a certain indenture, bearing even 
 date with the bond, made or expressed to be made between the plain- 
 tiff and the said R. G. Plea, that before the execution of the bond it 
 was agreed that the plaintiff should grant to R. G. a lease under 
 certain covenants, and that the defendant should enter into a bond as 
 surety for the performance of those covenants ; that the defendant did 
 accordingly enter into the bond on which the action was brought, and 
 that the indenture mentioned in the condition thereof is the lease so 
 agreed upon and no other ; but that the said lease never was executed. 
 On demurrer, it was held that the defendant was estopped by the con- 
 dition of the bond from pleading this plea. Lord Eldon, C. J. ob- 
 served, that the condition of the bond was for the performance of co- 
 venants comprised iii a certain indenture " made or expressed to be 
 made" between the trustees and the defendant : and that the object of 
 introducing thoce words seemed to have been, that whether the exe- 
 cution of the indenture could be proved or not, the covenants con- 
 tained in the paper-writing which purported to be an indenture be- 
 tween the trustees and the defendant should be considered as the co- 
 venants of the defendant [d). 
 
 As to estoppels, though the reason why they are allowed seems to 
 be, that no man ought to allege any thing but the truth for his defence, 
 and what he has alleged once is to be presumed true, and therefore he 
 ought not to contradict it, for allegans contraria non est audiendus {e) ; 
 yet, estoppels in general are not to be favoured ; they are to be ex- 
 tended only as far as positive rules have gone, because the tendency of 
 them is to prevent the investigation of the truth of the case {f). 
 
 Of future Interests being barred. — Respecting future interests, as to 
 tlieir being barred or destroyed, it has already appeared, that all leases 
 for years at common law when they come in esse, are to be executed by 
 the entry of the lessee ; but as to future interests, it has been clearly 
 iicid, that if one make a lease to commence two years after, when the 
 
 (<) Bac. Al)r. tit. Leasts, (O.) (//) Co. Lit. 45. a. («:) Sjtlk. 275. 
 
 (/) 2 Boj. £j I'ul. 277. 0) Co. Lit. 3 J z. 11. I. (/)4T. R. 154. ^ Mod. 313.
 
 Sect. II.] or on Condilion, &^x, 151 
 
 two years shall have expired, the lessee before any entry may grant his 
 term, although the lessor continues in possession, because such lessee's 
 interesse termini^ was not divested or turned to a right, but continued 
 in him in the same manner as it was at first granted, and in the same 
 manner he transfers it over to another, who by his entry may reduce it 
 into possession whenever he thinks fit {a). 
 
 One made a lease for years, to begin after the end of a former lease 
 for years then in being ; the first lease determined, and before entry 
 of the second lessee, he in reversion entered and made a feoffment in 
 fee, and levied a fine with proclamations, and five years passed without 
 entry or claim of the second lessee, and if his term were barred 
 was the question. It was adjudged, that by this fine and non-claim 
 his term was barred, because after the first lease expired, the second 
 lease was actually then come in esse, and reducible into possession by 
 an entry presently, and then his not entering, which was his own 
 fault and laches, could not stop the operation of the fine from run- 
 ning against him (b). 
 
 But if such fine had been levied during the continuance of the 
 first lease, it was agreed that in such case the operation thereof should 
 not begin to run out against the second lessee till the first lease were 
 determined, because till then the second lease was only an interesse 
 termini, which the second lessee >could not reduce into possession by 
 any entry till the first lease determined, and therefore was not obliged 
 to take notice of the acts of strangers, or of the ter-tenant in posses- 
 sion ; for if such future interest might be divested before it came in 
 esse, the lessee or grantee thereof, having never entered, would have 
 no means to revest it, and therefore till it comes in esse, the law takes 
 care to secure it to the lessee or grantee in the same manner as it was 
 at first granted ; but when the first lease is at an end, then the second 
 lessee is to take care of it himself, and if he suffers five years to 
 elapse after that time without entry or claim, this will bar such inte- 
 rest, because his right then commences in possession, and from thence- 
 forth the operation of the fine begins to run on against him. The 
 case ixi Noy 123 has been denied by Tivisden to be law (c). 
 
 As the lessee must enter when his lease comes into possession, so, 
 if he enters before, it will be a disseisin, and no continuance of pos- 
 session, though after the term actually begins, will purge the disseisin, 
 or alter the estate of the lessee (J). 
 
 Yet debt lies for the rent in respect of the privity of contract upon 
 the lease made [e). 
 
 Where one declared of a lease 1 6 April habendum from the annun- 
 ciation last past for ten years, " by virtue of which he entered and 
 had the tenements aforesaid from the said annunciation :" this was 
 
 (a) Bac. Abr. tit. Leases* (P.) Cro. Eliz. 157. (b) Bac. Abr. ut ante. Cio. Jac. 60. 
 
 3 Mod. 198. iLd. Ray. 179. {c) 'Qic. Ahx. ut ante. (</) Cro. Eliz. 169. (*) Ibid.
 
 152 Of Terms Joj' Years ahsolulctjj^ [Chap. VI. 
 
 held good, and that the lessee was no disseiser : for it shall be intend- 
 ed that he entered and occupied before by agreement ; and a diversity 
 was taken between this case, where the commencement of the lease 
 is limited from a time past, and that where it is limited to begin at a 
 time to come, in which case the entry of the lessee before that period 
 is a disseisin [a). 
 
 Of Tenns in trust. — As to terms or leases for years in trust, the 
 relation of landlord and tenant is little, if at all, elucidated by a con- 
 sideration of them ; but as they have occasionally been mentioned in 
 the course of the work, it may not perhaps be superfluous shortly to 
 notice them. 
 
 These terms are either vested in trustees for the use of particular 
 persons, or for particular purposes, or else upon trust to attend the in- 
 heritance. In the first case they are called terms m gross ; and the per- 
 sons entitled to the beneficial interest, have a right in equity to call 
 on the trustees, or persons who have the legal interest in the term, for 
 the rents and profits of the lands, and also for an absolute assignment 
 of the term [b). 
 
 It has been held, that if a man be cestuique trust of a term, it is not 
 assets within the statute of Frauds (t). 
 
 It has been held by the court, that a fine levied in pursuance of a 
 trust cannot destroy any lease made by cestuique trust ; but though a 
 fine by cestuique trust does not destroy or extinguish the trust, yet it is 
 not safe to do it, by reason of the danger of not being able to prove 
 an agreement to the contrary. 
 
 Upon trial of an issue out of Chancery, it was upon evidence 
 agreed, that if one made a lease for an hundred years in trust for 
 himself and his wife, and afterwards they both join in levying a fine to 
 a purchaser for a valuable consideration who had no notice of this 
 lease in trust, though the fine does not convey the term itself to the 
 conuzee, the estate in law being in the trustee, yet this destroys the 
 trust, so that the lease shall not hurt the purchaser. 
 
 Terms attendant on the inheritance owe their existence to the fol- 
 lowing circumstances. When terms for years became fully esta- 
 blished, and the interest of the term was secured against the effect of 
 fictitious recoveries, long terms became common : in all cases of this 
 kind, though the purposes for which the term was raised were fully 
 satisfied, yet it did not determine, so that the legal interest con- 
 tinued in the trustee ; but as the owner of the inheritance was en- 
 titled to all the benefit and advantage of it, the term became, in fact, 
 consolidated with the inheritance, and is usually called a term attend- 
 ant on the inheritance [b). 
 
 Of Leases by luay of Mortgage. — Tenant for years may also be 
 
 (.i) Cro. Liu. yoj. (/>) Ciuis. Di^;. 'I'ii. XII. i. 3. 
 
 (.) z Vein. 2-)8.
 
 Sect. II.] or on Condition, <^c. 153 
 
 created by way of mortgage, the nature of which is explained in 
 Chap. III. Sect. XIV. We shall therefore merely again observe, 
 that 
 
 As to mortgages, by way of creating terms, this was formerly by 
 way of demise and re demise, as for example; A. borrowed money 
 of B. whereupon A. would demise the land to B. for a term of 500 
 l^c. years absolutely, with common covenants, against incumbrances 
 and for farther assurance, and then B. would the day after re demise 
 to A. for 499 years, with condition to be void on non-payment of the 
 money at the day to come. This manner of mortgaging came in 
 after the 21 H. 8. c. 15. for falsifying recoveries, when there was a 
 fixed interest settled in terms for years. It was esteemed best for the 
 mortgagor, because it avoided all manner of pretension from the in- 
 cumbrances and dower of the feoffee in mortgage, and it was reputed 
 best for the mortgagee, inasmuch as it avoided the wardship and feudal 
 duties of the tenure, and was only inconvenient in this — that if the 
 second deed were lost, there appeared to be an absolute term in the 
 mortgagee {a). 
 
 The common method of mortgaging however, is by a demise of the 
 land for a term, under a condition to be void on payment of the mort- 
 gage-money and interest ; and a covenant is inserted at the end of 
 the deed, that till default shall be made in the payment of the money 
 borrowed, the mortgagor shall receive the rents and profits, without 
 account (b). 
 
 A mortgage in the form of a lease was granted of a feme-covert's 
 estate, by the husband and wife. After the husband's death, the 
 deed being in the hands of the mortgagee, the widow had directed 
 the tenants in possession to attorn to the mortgagee, had settled with 
 him for the balance of the rents, styling him mortgagee, and had 
 not questioned his possession for many years. In delivering the judg- 
 ment of the Court, Lord Mansfield said, that they were all of opinion 
 that the conveyance in this case, though in the form of a lease, was 
 in substance a mortgage, and not being within the reason for which 
 leases by a feme-covert are held to be only voidable, was absolutely 
 void on the death of the husband : but that the acts done by the 
 widow, the deed being in possession of the mortgagee, were tanta- 
 mount to a re-delivery, which, without a re-execution, is equivalent 
 to a new grant [c). 
 
 Where the lease is not a beneficial lease, it is for the interest of the 
 mortgagee to continue the tenant \ and where it is, the tenant may 
 put himself in the place of the mortgagor, and either redeem himself 
 or get a friend to do it (J). 
 
 Upon a refusal of the money by the mortgagee, a tender being 
 
 00 B-ic, Abr. ik. MoMsase. (A.) {b) lljid. (c) Doug. jj. [17.] 
 
 {d) Doug. 12.
 
 154 Of Tenants from Year to Year, [Chap. VII. 
 
 made at the place and at some time of the day specified in the condi- 
 tion, the condition is saved for ever, and the land is discharged, be- 
 cause upon the tender the demise is void (a). 
 
 But if one mortgage his reversion in fee to the lessee for years, 
 whereby his term is surrendered, and afterwards pays the money 
 pursuant to the condition, yet his term shall be extinguished and not 
 revived (b). 
 
 (/i) Bac. Abr. tit. Mortgage. (D.) (i) Com. Dig. tit. Surrender. (L. i.) 3 Leon. 6. 
 
 CHAPTER VII. 
 
 For what Term Leases may he made. 
 
 Section I. Of Tenants from Year to Year, wherein of 
 
 Notice to quit. 
 
 Section II. Of Tenants for a less Term, wherein of 
 
 Lodgings. 
 
 Section III. Of strict Tenants at Will. 
 
 Section IV. Of Tenants at Sufferance. 
 
 Section I. Of Tenants from Year to Year, whereiii of 
 
 Notice to quit. 
 
 THAT which was formerly considered as a tenancy at will has 
 been since properly construed to enure as a tenancy from year 
 to year {a), which, therefore, may now be said to be when a man lets 
 lands or tenements to another, without Umiting any certain or deter- 
 minate estate ; especially if an annual rent be reserved {b). 
 
 A general parol demise, therefore, at an annual rent, where the bulk 
 of the farm is enclosed and a small part of it in the open common 
 fields, is only a lease from year to year ; and not for such time as the 
 round of husbandry continues (c). But where the crop, as of liquo- 
 rice, madder, ^c. does not come to perfection in less than two years, 
 it might be otherwise (d). 
 
 Averment in a declaration that plaintiff was possessed of premises 
 for the remainder of a certain term of years then unexpired therein, 
 which he agreed to assign to the defendant, is supported by evidence 
 of a tenancy from year to year [e). 
 
 (a) 8 T. R. 3. 3 T. R. 16. (/') Com, Dig. tit. Estates. (H. 1.) 
 
 («) z 131. R. 1171. (rfj Ibid, (0 I Campb. 317.
 
 Sect. I.] wherein of Notice to quit. 155 
 
 The distinction taken between a tenant from year to year and a te- 
 nant for a term of years, is rather a distinction in words, than in sub- 
 stance. A tenant from year to year is entitled to estovers, and 
 the same advantages as a tenant for a term of years ; in truth, he is a 
 tenant from year to year as long as both parties please : and consider- 
 ing how many large estates are held by this tenure, it would be dan- 
 gerous to say that the term ceased at the end of the year (a). 
 
 It would be extremely unjust, that a tenant who occupies land, 
 should, after he has sown it, be turned out of possession without rea- 
 sonable notice to quit ; and it was in order to avoid so unjust a mea- 
 sure, that so long ago as in the time of the Year-Books it was held 
 that a general occupation was an occupation from year to year, and 
 that the tenant could not be turned out of possession without reason- 
 able notice to quit ; and that rule has always prevailed since (b). The 
 doctrine, in truth, respecting notice to quit was laid down as early as 
 the reign of Henry VIII. (c). 
 
 Touching the distinction between six months* and half a year*s no- 
 tice, the case in the Year-Books requires half a year's notice ; for the 
 moment the year began the tenant had a right to hold to the end of 
 that year (d). The six months' notice, therefore, means half a year, 
 and not merely the space of six months at any time of the year ; for 
 such half year's notice must expire at the end of the year, or it will 
 not be a good notice {e). 
 
 If there be a lease for a year, and by consent of both parties the 
 tenant continue in possession afterwards, the law implies a tacit re- 
 novation of the contract ; for where a tenant holds over after the ex- 
 piration of his term, without having entered into any new contract, 
 he holds upon the former terms : they are therefore supposed to have 
 renewed the old agreement, which was to hold for a year. JBut then 
 it is necessary, for the sake of convenience, that if either party should 
 be inclined to change his mind, he should give the other half a year's 
 notice before the expiration of the next or any following year (/"). 
 
 In tenancies from year to year there must always be six months' 
 notice to quit on either side, according to the ancient law ; except 
 where any special agreement, or the custom of particular places in- 
 tervenes {g). 
 
 But, by special custom, three months' notice, or twelvemonth's, 
 will be the proper notice [h). As by the custom of London, where a 
 tenant under the yearly rent of 40J". is only entitled to a quarter's no- 
 tice (/■). 
 
 An agreement by which " the tenant is always to be subject to 
 
 (a) 6 T. R. 297. (^) 7 Tr. 85. (c) I T. R. 163. 13 H. 8. 15. b. 
 
 id) Ibid. {e) % Salk. 413. 3 WiU. IS. i H. Bl. 97. i T. R. 163. i Esp. R. a66. 
 (/)iT.R. 16a. (£) z Bl. R. 1x23. 3T. R. 17. (6) Peake'sR.5. 
 
 (1) I Skill. 649.
 
 156 Of Tenants Jrom Year to Year, [Cliuj). VII. 
 
 quit at three months notice," constitutes a tenancy which may be de- 
 termined by a three months' notice to quit, expiring at the same time 
 of the year it commenced, or at any corresponding quarter-day [a). 
 
 But where premises are let from year to year upon an agreement 
 that either party may determine the tenancy by a quarter's notice ; 
 this notice must expire at the period of the year when the tenancy 
 commenced (^). 
 
 A quarterly reservation of rent is not of itself sufficient to dispense 
 with the necessity of a regular six months' notice to quit (c). 
 
 Though a lease be void by the statute of Frauds as to the duration 
 of the term, the tenant holds under the terms of the lease in other 
 respects; and therefore the landlord can only put an end to the te- 
 nancy at the expiration of the year {d). 
 
 So, where tenant for life grants a lease for years M'hich is void 
 against the remainder-man, and the latter, before he elects to avoid it, 
 receives rent from the tenant, whereby a tenancy from year to year is 
 created, yet this is with reference to the old term, and therefore a half 
 year's notice to quit from the remainder-man ending with the old year, 
 is good (e). 
 
 So, where tenant for life makes a lease for years, to commence on a 
 certain day, and dies before the expiration of the lease, in the middle 
 of the year; the remainder-man receives rent from the lessee, (who 
 continues in possession, but not under a fresh lease) for two years to- 
 gether on the days of payment mentioned in the lease : this was held 
 to be evidence from which an agreement will be presumed to subsist 
 between the remainder-man and the lessee, that the lessee should 
 continue to hold from the day, and according to the terms of the 
 lease ; so that notice to quit ending on that day is proper [f). 
 
 Tenant in tail having received an ancient rent of i/. i8j-. 6d. from 
 the lessee in possession under a void lease granted by tenant for 
 life under a power, the rack-rent value of which was 30/. a year, can- 
 not maintain an ejectment laying his demise, at least, on a prior day, 
 without giving the lessee some notice to quit, so as to make him a 
 trespasser after such recognition of a lawful possession either in rela- 
 tion of tenant, or at least as continuing by sullerance till notice [g). 
 
 It once was doubted, whether if the landlord or tenant died, the 
 same notice to his executors or administrators was necessary as would 
 have been requisite had he lived ; and it was even suggested that a 
 month's notice in such case would suflice (/»). 
 
 It is now settled, however, that in the case of a tenancy from year 
 to year as long as both parties please, if the tenant die intestate, his 
 administrator, as his legal representative, has the same interest in the 
 
 («) 3 Camp. 510. (/^ 2 Camp. 478. {c) 1 lisp. a66. {d) 5 T. R, 4^1. 
 (-•) 1 T. R. 8j. 7r.R. 478- 2 Dip. 1^-Joi. (/) ill. lil. 97. 
 
 (-) 10 Easi, 261. (A) 1 Bl. R.5';6.
 
 Sect. I.] wherein of Notice to quit. 157 
 
 land which his intestate had ; for such tenancy is a chattel interest, 
 and whatever chattel the intestate had, must vest in his adminis- 
 trator as his legal representative (o). 
 
 This principle is so settled that it has been adjudged (^) that the 
 executor of a tenant from year to year of an estate under lo/. a year, 
 may gain a settlement by residing on it forty days : on the ground 
 (inter alia) that he resided on an estate of his own and continued 
 there forty days irremoveable. 
 
 In this respect the right and the remedy must be reciprocal ; as the 
 representative capacity of executor or administrator is not affected by 
 the testator or intestate having been in the situation of either landlord 
 or tenant. 
 
 But although, if the testator die in the possession of a term for 
 years, it shall vest in the executor, and although if it be worth 
 nothing, he cannot waive it, for he must renounce the executorship 
 in toto or not at all ; yet this is to be understood only where the exe- 
 cutor has assets : for he may relinquish the lease, if the property be 
 insufficient to pay the rent ; but in case there are assets, to be at the 
 loss for some years, though not during the whole term, it seems the 
 executor is bound to continue tenant till the fund is exhausted, when 
 on giving notice (thereof) to the lessor, he may waive the posses- 
 sion (c). 
 
 So in the case of an infant. Therefore, where an infant becomes 
 entitled to the reversion of an estate leased from year to year, he can- 
 not eject the tenant without giving the same notice as the original 
 lessor must have given {d). Also if a tenant hold under an agreement 
 for a lease at a yearly rent, whereby it is stipulated that the agreement 
 shall continue for the life of the lessor, and that a clause shall be 
 inserted in the lease, giving the lessor's son power to take the house 
 for himself when he came of age, the son must make his election in a 
 reasonable time, as for example, a week or fortnight, after he comes 
 of age ; the delay of a year is unreasonable, and the tenant cannot be 
 ejected upon half a year's notice to quit served after such a delay (f). 
 
 So, where an ejectment has been brought on the demise of an in- 
 fant, which action is compromised, and the tenant in possession 
 attorns to the defendant ; though the infant, on coming of age, does 
 not accept rent or do any act to confirm the tenancy, yet, as the 
 former ejectment was brought at his suit and for his benefit, he shall 
 not be allowed to consider the tenant as a trespasser, and bring a new 
 ejectment, without giving notice to quit {^f). 
 
 Tenant from year to year also before a mortgage or grant of the 
 
 (a) 3 T. R. 1 6. {h) 6 T. R. 395. (c) Toll L. of Ex. & Adm. 
 
 109. and the cases there cited, (</) a T. R. 159. (*) Ibid. 436. 
 
 (/) 3ESP.530.
 
 158 Of Tenants from Year to Year, [Chap. VII. 
 
 reversion, is entitled to six months' notice to quit before the end of 
 the year from the mortgagee or grantee [a). 
 
 Thus where a tenant held from the 22d of November as a yearly 
 tenant; and a mortgagee who became such in July was desirous of 
 ousting him, it was too late to give notice then for the tenant to quit 
 at the end of the current year ; for the tenant, at the time that the 
 mortgagee's title accrued, had as permanent an interest in the estate 
 till the 2 2d of November y as if it had been leased to him by deed till 
 that period {b). 
 
 There is no distinction in reason between houses and lands, as to 
 the time of giving notice to quit ; it is necessary that both should be 
 governed by one rule. There may be cases where the hardship would 
 be felt in determining that the rule did not extend to houses as well as 
 lands : as in the case of a lodging-house in London being let to a 
 tenant at Lady-day to hold from year to year, if the landlord should 
 give notice to quit at Michaelmas, he would by that means deprive the 
 lessee of the most beneficial part of the term, since it is notorious 
 that the winter is by far the most profitable season of the year for 
 those who let lodgings. The notice should be half a year preceding 
 the expiration of the year (c). 
 
 Tithes in this respect are assimilated to land. If, therefore, a com- 
 position for tithes be made by ^. as proprietor, and he lease them to 
 B. whose interest is afterwards put an end to by ^. before any altera- 
 tion is made in the composition, yf. cannot determine it without six 
 months' notice (d). 
 
 Where a house, lands and tithes, were held under a parol demise at 
 a joint rent, a notice to quit « the house, lands, and premises with the 
 appurtenance^^ includes the tithes, and is sufficient to put an end to the 
 tenancy {e). 
 
 A notice to quit has reference, in all cases, to the letting ; there- 
 fore, where a house was taken by the month, it was held that a 
 month's notice was sufficient to entitle the party to recover (/"). 
 
 A tenant sometimes enters upon different parts of the land at 
 different periods of the year, although all are contained in one demise. 
 When this happens, the notice to quit must be given, with reference 
 to the time of entry, upon the substantial parts of the demised pre- 
 mises, without regard to the other parts which are auxiliaries only ; 
 though the tenant will be obliged to quit them at the respective times 
 of his entry thereon. 
 
 Thus, where the demise was that the tenant should hold the arable 
 land from the 13th of February then next, the pasture from the 5th 
 of April, and the meadow from the 12th of May, at a yearly rent, 
 
 {a) I T. R. 580. {!,) Ibid. 381. (r) Ibid. 162. (</) 1 B. & p. 438. 
 
 («) 3 Camp. 71. (/) X lisp. 94.
 
 Sect. 1.] wherein of Notice to quit, 159 
 
 payable at Old Michaelmas and Old Lady-day^ the first payment to be 
 made at Old Michaelmas then next, it was held to be a tenancy from 
 Old Lady-day to Old Lady-day ; because the custom of most countries 
 •would have required the tenant to have quitted the arable and meadow- 
 lands on the 13th of February and 12th of May, without any special 
 agreement, and a notice to quit at Old Lady-day delivered before Old 
 Michaelmas was held sufficient [a). 
 
 So also upon a demise of the same nature, namely, that the tenant 
 should enter upon the arable land at Candlemas^ and the house and 
 other premises at Lady-day ; to which was added a proviso, that the 
 tenant should quit the premises "according to the times of entry as 
 aforesaid" it was held by the Court, that the proviso made no alteration 
 in the tenancy, so as to require a notice six months before Candlemas, 
 because it merely expressed what the law would otherwise have 
 implied ; that the substantial time of entry was at Lady-day, with a 
 privilege to the tenant, on the one hand, to enter on the arable land 
 before that period, for the purpose of preparing it, and on the other 
 hand, a stipulation by him when he quitted the farm, to allow the 
 same privilege to the in-coming tenant ; and, therefore, that a notice, 
 given six months previous to Lady-day, although less than six months 
 before Candlemas, was sufficient (^). 
 
 So, where the premises contained in the demise consisted of dwell- 
 ing-houses, and other buildings, used for the purpose of carrying on 
 a manufacture, a few acres of meadow and pasture land, and bleach- 
 ing grounds, together with all watercourses, &c. and the tenant held 
 under a written agreement for a lease to commence, as to the meadow 
 ground, from the 25th of December then last; as to the pasture, 
 from the 25th of March then next ; and as to the houses, mills, and 
 all the rest of the premises, from the ist of May ; the rent payable on 
 the day of Pentecost and Martinmas. The court held, that the sub- 
 stantial time of entry was the ist of May, inasmuch as the substan- 
 tial subject of the demise was the house and building for the pur- 
 pose of the manufacture, to which every thing else in the demise was 
 merely auxiliary (r). 
 
 So, where a house and thirteen acres of land were demised for 
 eleven years, to hold the lands from the 2d of February, and the 
 house and other premises from the ist of May, at the yearly rent of 
 24/., payable at Michaelmas and Lady-day, the jury found the land to 
 be the principal subject of the demise ; and the plaintiff was nonsuited 
 on account of the notice to quit not having been given six months 
 previous to the 2d of February. The court was afterwards moved to 
 set aside the nonsuit, on the ground that the house was the principal 
 part of the demise (being situated near a borough) j or, at all events, 
 
 (a) a Bl. R. 12*4. {6) 6 East, 120. (>■) 7 East, 551. 
 
 6
 
 160 Of Tenants from Year to Year, [Chap. VI L 
 
 that the relative value and importance of the house and lauds were so 
 nearly balanced, it was immaterial to which the notice referred •, but 
 the court refused the rule, saying, it was for the jury to decide 
 which was the principle, and which the accessary part of the 
 demise (fl). 
 
 Difficulties frequently arise as to the period of the commencement 
 of a tenancy, and when a regular notice to quit on any particular day 
 is given, and the time when the term began is unknown, the effect 
 of such notice, as to its being evidence, or not, of the time of the 
 commencement of the tenancy, will depend upon the particular cir- 
 cumstances attending its delivery. 
 
 If the tenant, having been applied to by his landlord respecting the 
 time of the commencement of his tenancy, has informed him that it 
 began on a certain day, and, in consequence of such information, 
 a notice to quit on that day is given at a subsequent period, the tenant 
 is concluded by his own act; and will not be permitted to prove that 
 in point of fact the tenancy has a different commencement : nor is it 
 material whether the information be the result of design, or ignorance, 
 as the landlord is in both instances equally led into an error [b). 
 
 In like manner, if the tenant, at the time of the delivery of the notice, 
 assent to the terms of it, it will waive any irregularity as to the period 
 of its expiration •, but such assent must be strictly proved : thus the 
 words, " I pay rent enough already, and it is hard to use me thus," 
 have been held not to amount to an acceptance of the notice, but to 
 be merely the words of an angry man {c). 
 
 It was formerly held {d) that a notice to quit on any particular day, 
 was always prima facie evidence of a holding from that day ; but this 
 doctrine is now exploded, and no such presumption will arise unless 
 the delivery be to the tenant personally, and he then read the con- 
 tents, or they be explained to him, without any objection being 
 made on his part as to the time of the expiration of the notice {e) ; 
 though, if the delivery be attended with these circumstances, the 
 proof of the time of the commencement of the tenancy, will still be 
 thrown upon the tenant. 
 
 When the landlord is ignorant of the time when the term of his 
 tenant commenced, a notice to quit is sometimes given, not specify- 
 ing any particular day, but ordering the tenant, in general terms, to 
 quit and deliver up the possession of the premises " at the end and 
 expiration of the current year of his tenancy thereof, which shall 
 expire next after the end of one half year from the date of the 
 notice (/);" and such general notice is sufficient to support an eject- 
 ment. But the landlord must in such case give some evidence of the 
 time of the commencement of the tenancy)| so as to satisfy the court 
 
 (a) XI East, 498. (A) a Esp. 635. (0 4 T. R. 361. (</) i T. R. 161. 
 
 (OaCowp. 387. Ibid. 647. 13 East, 405. 3 Co wp. 388. (/)aEsp.j89.
 
 Sect. I.] "^'herein of Notice to quit, 161 
 
 that the current year had expired before the day of the demise in the 
 declaration. As where a notice was given on the 22d of Marchy by 
 a landlord to his tenant to quit at the expiration of the current year ; 
 and a declaration in ejectment, laying the demise on the first of No- 
 vemhety was on the i6th of Jamiary following, served upon the te- 
 nant, who at the time made no objection to the notice to quit, but said 
 he should go out as soon as he could fit himself. This was held to 
 be primd facie evidence, that the tenancy commenced at MichaelmaSy 
 and was determined before the day of the demise (a). 
 
 So also, where the landlord proved that the defendant's rent was due 
 at Michaelmas and Lady day respectively; and that it was the general 
 custom of the county where the demised lands lay, to rent the same 
 from Lady-day to Lady -day ; this was held sufficient primd facie evi- 
 dence of a holding from Lady-day [h). 
 
 Where tenant by lease continues to hold after the expiration of it, 
 as tenant at will, and assigns to another, the tenancy of the assignee 
 shall be held to commence at the day on which it commenced under 
 the lease, and a notice to quit on that day only is good, notwithstand- 
 ing the assignee came in on a different day (f). 
 
 A notice should be clear and certain in its terms, and not ambiguous 
 or optional, or it will be invalid. But it must be really ambiguous or 
 optional, and not merely apparently so ; for if it appear from the no- 
 tice altogether, that the landlord had no other end in view than that 
 of turning out the tenant, it will be a good notice notwithstanding an 
 apparent alternative. 
 
 Thus where notice in writing was served on a tenant and was in 
 the following words, " I desire you to quit possession on Lady-day 
 next, or I shall insist upon double rent ;" the Court held it to be suf- 
 ficiently positive, and the latter words were added only by way of 
 threat of the consequence of holding over the possession {d). 
 
 But it seems that if the notice had been in these words, " I desire 
 you to quit, or else that you agree to pay double rent, it would have 
 been an optional notice {e). 
 
 So, a notice delivered to a tenant at Michaelmas ^ i79Sj to quit "at 
 Lady-day which will be in the year 1795," was holden to be a good no- 
 tice to quit at Lady-day^ 1796 : for the intention was clear, and 1795 
 shall be rejected as an impossible year (y). 
 
 So a notice to " quit possession of the rooms or apartments which 
 you now hold of me, on the 25th of March, or the 6th day of April 
 next ensuing," was held to be sufficient notice to the tenant to quit 
 if he received it six months before the end of the tenancy, for that 
 the notice was intended to meet an holding commencing either at old 
 or nenv Lady-day, and not to give an option to the tenant, and at 
 
 (ii) 3 Camii. 559. (i) Adams's Eject. 277. («)jEsp. 173. (rf) Doug. 176. 
 
 Wlbid. (/)7T.R.8j. 
 
 M
 
 162 Of Tenants from Year to Year, [Chap. VII. 
 
 whichsoever day it actually commenced, the notice was calculated to 
 meet it, being given on new Michaelmas-day^ and the demise laid after 
 the 6th of April {a). 
 
 So, where a notice is given to quit at Lady-day or Michaelmas ge- 
 nerally, it shall be prima facie held to mean neiv Lady-day or Michael- 
 mas^ but is open to explanation that old Michaelmas or old Lady-day 
 was intended {h). 
 
 So, where a farm was leased for twenty-one years at a rent of i8o/. 
 per aunwHy consisting, as described in the lease, of the Town Barton, 
 and its several parcels described by name, at the rent of 83/. ; other 
 closes named, at other rents, and the Shippen Barton and its several 
 parcels decribed by name at another rent ; with a power reserved to 
 either party to determine the lease at the end of fourteen years, on 
 giving two years' previous notice. It was held that a notice by the 
 landlord to his tenant to quit " Town Barton, &c." agreeably to the 
 terms of the covenant between them at the end of the fourteenth year 
 of the term, given in due time, was sufficient ; for the Town Barton 
 meant Town Barton cum j-cnVx;— otherwise as there was no power to 
 determine the lease as to part only, the notice could have no operation 
 -at ull(f). 
 
 So where a house, lands, and tythes were held under a parol demise 
 at a joint rent, a notice to quit *' the house, lands and premises, with 
 the appurtenances," included the tythes, and was sufficient to put an 
 end to the tenancy (d). 
 
 A lease of lands by deed since the new stile, to hold from the feast 
 of 5/. Michael^ must be taken to mean from neiv Michaelmas^ and can- 
 not be shewn by extrinsic evidence to refer to a holding from old Mi- 
 chaelmas ; and this rule prevails, although the tenancy be created by a 
 holding over after the expiration of the lease, and the original entry 
 was according to the old style {e). 
 
 If premises are taken for " twelve months certain, and six months* 
 notice to quit afterwards," the tenancy may be determined by a six 
 months' notice to quit, expiring at the end of the first year {f). 
 
 Demise from -<^. to B. for twenty-one years, if both should so long 
 live ; but if either should die before the end of the said term, then 
 the heirs, executors, ^c. of the person so dying should give twelve 
 months* notice to quit, ^c. Held that the lease could only be deter- 
 mined by twelve months' notice given «< by the representatives of the 
 party dying before the end of the term ;" and consequently that such 
 notice given by the lessor to the representatives of the lessee (who 
 died during the term) did not determine it [g). 
 
 Where a power is given to a party to determine a lease on giving a 
 notice in writingy he cannot determine it by giving zparol notice [h). 
 
 (<j) 4 Esp. 6. {!>) I Esp, 197. a Camj). 256. {c) 14 Kast, 245. (</) 3 Camp. 71. 
 (r) II East, J I J. (/) a Cowp. J 73. (?) WiUef, 4J. {h) Ibid.
 
 Sect, r I.] xvltercin of Notice to quit. 163 
 
 A parol notice, it should seem, would be sufficient under a parol de- 
 mise (a) ; though in other cases it should be in writing (^). 
 
 Although a lease of tythes cannot be without deed, yet a parol 
 agreement for retaining tythes must be determined by a notice, with 
 analogy to the notice given in a holding of land [c). 
 
 Where there are three joint-trustees of an estate, notice to quit or 
 discontinue the possession given by two is bad, even though given in 
 the name of the third, and the third trustee afterwards adopts it and 
 joins in the demise in ejectment (d). 
 
 Notice to quit, served upon one of two tenants on the premises^ 
 under a joint demise, is evidence that the notice reached the other, who 
 lived elsewhere (e). 
 
 It Is not necessary that a notice to quit should be directed to the 
 tenant In possession, if proved to be delivered to him at the proper 
 time {/). 
 
 When a notice to quit is signed by the party and attested by a wit- 
 ness, such witness must be called to prove the handwriting of the 
 party or his absence be accounted for, although he was not the person 
 who served it upon the tenant ; proof that it was served upon the te- 
 nant, that he read it, and did not object to it, is not In such case suf- 
 ficient (g). 
 
 The delivery of the notice to quit to the servant of the tenant at 
 his dwelling-house, to whom the nature of it was explained, though 
 such dwelling-house was not situated on the premises, and it did not 
 appear to have come to the tenant's hands, is strong presumptive evi- 
 dence that It reached him, which may be rebutted by the evidence of 
 the servant (h). 
 
 But the mere leaving of a notice to quit at the tenant's house, with- 
 out further proof of its being delivered to a servant, and explained, 
 or that it came to the tenant's hands, is not sufficient to support an 
 ejectment (z). 
 
 If a landlord receive rent due, after the expiration of a notice to 
 quit, it is a waiver of that notice. But if the money had not been 
 received as rent, but as a satisfaction for the injury done by the te- 
 nant In continuing on his late landlord's premises as a trespasser, then 
 the late landlord might have recovered in ejectment (k). 
 
 A landlord of premises about to sell them, gave his tenant notice 
 to quit on the nth of October, 1806, but promised not to turn him' 
 out unless they were sold, and not being sold till February, 1807, the 
 tenant refused on demand to deliver up possession, and on ejectment 
 brought, it was held that the promise which was performed was no 
 waiver of the notice, nor operated as a license to be on the premises, 
 
 (a) 3 Surr. 1609. Bl. R. S3i- (^) ^ B. & P. 465. (c) 3 Camp. 71. 
 
 (</) 5 Esp. 149. (,) 7 East, SSI. S Esp. 196. (/) 4 Esp. 5. (j-) z M. & S. 62. 
 
 (*) 4 T. R. 464. (0 5 Esp. 153. {i) 6 T. R, azo. i Bl. R. 311. 
 
 M 2
 
 164 Of Tenants from Year to Year, [Chap. VII. 
 
 otherwise than subject to the landlord's right of acting on such no- 
 tice if necessary, and therefore that the tenant not having dehvered up 
 possession on demand after a sale, was a trespasser from the expira- 
 tion of the notice to quit («). 
 
 Though a notice to quit is in general waived by the receipt of rent 
 due subsequent to such notice, yet the mere acceptance of rent by a 
 landlord subsequent to the time when the tenant ought to have quitted 
 according to the notice given him for that purpose, is not itself a 
 waiver, on the part of the landlord, of such notice ; but matter of 
 evidence only to be left to the jury, under the circumstances of the 
 case : for the landlord might possibly have accepted the rent under 
 t^ms, or made an express declaration that he did not mean to waive 
 the notice, and that notwithstanding his acceptance or receipt of the 
 rent, he should still insist upon the possession ; or fraud or contri- 
 vailce might have been practised on the part of the tenant in paying 
 it. — The question therefore, in such cases', is quo ammo the rent was 
 received, and what the real intention of both parties was (^). 
 
 Where rent is usually paid at a banker's, if the banker, without any 
 special authority, receives rent accruing after the expiration of a no- 
 tice to quit, the notice is not thereby waived (r). 
 
 Where a landlord gave notice to quit different parts of a farm at 
 different times, which the tenant neglected to do in part, in conse- 
 quence of which the landlord commenced an ejectment j and before 
 the last period mentioned in the notice was expired, the landlord, ap- 
 prehending that the witness by whom he was to prove the notice 
 would die, gave another notice to quit at the respective times in the 
 following year, but continued to proceed with his ejectment, it was 
 held that the second notice was not a waiver of the first (d). 
 
 So, a notice to the tenant, that if he do not quit in fourteen days, 
 he will be required to pay double value, given after the expiration of 
 a regular notice to quit, is no waiver of such notice [e). 
 
 So, if a landlord gives notice to his tenant to quit at the expiration 
 of the lease, and the tenant hold over, the landlord is entitled to double 
 rent ; and a second notice delivered to the tenant after the expiration 
 of such notice " to quit on a subsequent day or to pay double rent," 
 is no waiver of the first notice, or of the double rent which has ac- 
 crued under it (/). -S^ 
 
 Where a second notite was given to a tenant to quit at Michaelmas^ 
 i8i I, it was held a waiver as to him of a former notice given to the 
 original lessee (from whom he claimed by assignment) to quit at Mi- 
 chaelmas 1810 (^). 
 
 Where one in remainder, after the expiration of an estate for life, 
 gave notice to the tenant to quit on a certain day, and afterwards ac- 
 
 (a), TO East, 13. {I') Cowp. 245- (O ^ <-'=""P- 38^). (J) Z East's R. a.^;. 
 
 (,) I Comp. 117. (f) Ibid. (,f) 16 E.i3t, 5.r
 
 Sect. I.] "wherein of Notice lo quit, 16.5 
 
 cepted of half a year's rent ; such acceptance being only evidence of 
 a holding from year to year, is rebutted by the previous notice to quit, 
 and therefore the notice remains good [a). 
 
 But when three months' notice was given where the rent was re- 
 served quarterly, and the landlord expressed neither his assent nor dis- 
 sent to admit it, and took the rent up to the time when his tenant 
 quitted ; it was construed to be such an acquiescence as amounted to 
 presumptive evidence that the parties intended to dispense" with the 
 notice, and was therefore deemed a waiver of it [b). 
 
 So, if at the end of the year (where there has been a tenancy from 
 year to year) the landlord accepts another as his tenant, without any 
 surrender in writing, such acceptance shall be a dispensation of the 
 notice to quit {c). 
 
 Notice to quit, however, is not necessary in every case. Thus when 
 a lease is determinable on^a certain event, or at a particular period, 
 no notice to quit is necessary, because both parties are equally ap- 
 prized of the determination of the term {d]. 
 
 So, if the tenant have attorned to some other person, or done some 
 other act disclaiming to hold as tenant to the landlord, in that case no 
 notice is necessary [e). Indeed if a tenant put his landlord at defiance, 
 his landlord may consider him either as his 'tenant or a trespasser, 
 and in the latter case need not give him a notice to quit before he 
 brings his ejectment [f). 
 
 But a refusal to pay rent to a devisee in a will which was contested, 
 is not such a disavowal of the title as to empower such devisee to 
 maintain an ejectment without giving a.previous notice [g). 
 
 A mortgagee may recover possession against the mortgagor, or a 
 tenant under a lease from the mortgagor posterior to the mortgage^ 
 without notice to quit ; for when the mortgagor is left in possession, 
 the true inference to be drawn is an agreement that he shall -possess 
 the premises at will in the strictest sense, and therefore no notice is 
 ever given him to quit [h). 
 
 Wherever the lessee holds under a void demise, no notice is ne- 
 cessary ; as in the case just mentioned of a lease by a mortgagor after 
 the mortgage (/). 
 
 It may again be observed, that where the estate or lease is ipsojacto 
 void on the condition or limitation, no acceptance of the rent aftejr; 
 can make it to have a continuance ; otherwise it is of an estate or lease 
 voidable by entry (k) • and this distinction is, because the acceptance 
 of rent in the one case cannot make a new lease, and the old one was 
 determined ; but the acceptance of the rent in the other, is, a suffi- 
 
 (a) i6 East, i6i. (6) Esp. R. z66. (.) aEsp. R.J05. (J) 1 T. R. j4, 162. 
 
 (^) Bull. N. P. 96. Esp. N. P. 463. (/) Ptake'sR.l97. (^) ibid. (-f.) Doug. 2 a. 
 
 (0 1 T. R. 95. >::.p. N. r.463. (k) Co. Lit. 31J. VVillesj 169.
 
 166 Of Tenants for a less Term [Chap. VII. 
 
 cient declaration that it is the lessor's will to continue the lease, for 
 he is not entitled to the rent bat by the lease (a). 
 
 It need scarcely be again observed, that where the relation of land- 
 lord and tenant does not subsist, notice to quit is out of the question. 
 Thus the receipt from the cestiiiqiie of a quit-rent res<"rved on the 
 grant of a copyhold does not constitute a tenancy from year to year, 
 so as to entitle his widow to notice to quit ; the rent not being received 
 as between landlord and tenant, but attributable to another considera- 
 tion : for as to the question of tenancy from year to year, the pay- 
 ment of rent cannot be evidence of a holding from year to year, if, 
 as in the case of a conventionary rent like this, it be not a payment 
 of rent as between landlord and tenant [b). 
 
 In the case of Mihhuay v. Shirley ^ Dorchester Summer Assizes, l 806, 
 where the lessor of the plaintiff claimed thirty acres of leasehold, on 
 a lease settled on him long before extinct, on which a rent of 13J'. /\d. 
 was reserved, it appeared that after the lease had run out, the steward 
 not knowing that, had continued regularly to receive the 13/. 4^. on 
 the day on which it was reserved by tlie lease ; wherefore it was ob- 
 jected, that this payment of rent created a tenancy from year to year, and 
 that there ought to have been a notice to quit. But, however, Thomp- 
 son, B. held that it was not necessary, that no contract as of a ten- 
 ancy from year to year could be presumed, that the payment was 
 made alio intuitu, and that the case fell within the principle of that 
 determined in 3 East, 260, — (cited 10 East, 165.) 
 
 Tenant from year to year underlet part of the premises, and then 
 gave up to his landlord the part remaining in his own possession, 
 without either receiving a regular notice to quit the whole, or giving 
 notice to quit to his sublessee, or even surrendering that part in the 
 name of the whole. The landlord cannot entitle himself to recover 
 against the sub-lessee, (there being no privity of contract between 
 them) upon giving half a year's notice to quit in his own name, and not 
 in the name of the first lessee ', for as to the part so underlet, the 
 original tenancy still continued undetermined {c). 
 
 Skction II. Of Tenants for a less Term than from Year 
 to Year: tvherein of Lodgings, 
 
 We have had occasion before to observe, that any one possessed of 
 a certain quantity of interest may alienate the whole or any part of it, 
 unless restricted from so doing by agreement of the party from whom 
 he derives that interest or estate, or by the terms upon which he 
 takes it. 
 
 («) Co. Lit. n. I. (A) 3 East's R. a6o. (*) 14 East, 234, ,
 
 Sect. II.] than from Year to Year: — Of Lodgings. 167 
 
 Upon the same principle he may demise it or any part of it for 
 any term shorter than that of which he is possessed •, and when part 
 of a messuage or tenement is let to another, it is called a lodging or 
 lodgings. 
 
 Of Lodgings. — Lodgings may be let in the same manner as lands 
 and tenements : in general, however, they are let either by agree- 
 ment in writing between the landlord and tenant, or by parol agree- 
 ment. 
 
 It is a general rule in the case of a yearly tenancy, that notice to 
 quit must be half a year before the expiration of the year ; the case of 
 lodgings depends upon a particular contract, and is an exception to 
 the general rule. The agreement between the parties may be for a 
 month or less time, and there much shorter notice v/ould be suffi- 
 cient, where the tenant has held ever the time agreed upon, than in 
 the other case («). 
 
 The whole question depends upon the nature of the first contract : 
 so that if the parties have agreed that the tenant shall hold for a term 
 certain, no notice of course can be necessary {b) ; but if the tenant 
 hold for no particular period, reasonable notice must be given, which 
 is regulated generally, if not always, by the local custom of the par- 
 ticular place or district, which for the most part requires the same 
 space of time for notice as the period for which the lodgings are 
 taken, as a week's notice, where taken for a week ; a month's, where 
 taken for a month, and so forth ; but this is not always the case, 
 for it is not always necessary (it is presumed) that a quarter's notice 
 should be given where the rent is paid quarterly, and it is under- 
 stood to be a quarterly taking, for a month's notice is sometimes 
 customary, and which probably a court and jury would think gene- 
 rally reasonable [c). 
 
 If a house, originally entire, be divided into several apartments, 
 with an outer door to each apartment, and no communication with 
 each other subsists, in such case the several apartments are consi- 
 dered in law as distinct mansion houses. But if the owner live in 
 the house, all the untenanted apartments shall be considered as parts 
 of his house. Yet, if there be two several tenements originally, and 
 they become inhabited by several families, who make but one avenue 
 for both, and use it promiscuously, the original severalty is so far re- 
 cognized and regarded, that they continue to be severally rateable to 
 the poor {d). 
 
 These lodgings constitute such an interest according to the dura- 
 tion of the term, that to many purposes the lodgers are considered 
 in law in the light of householders, and enjoy the same protection 
 
 {a) I T. R. 162. (i) Ibid. 
 
 {e) I Esp. R. 94. [d) 6 Mod. 214.
 
 1^8 Of Tenants for a less Term [Chap. VII. 
 
 and greater immunities, for they are not compellable to serve parish 
 offices. 
 
 As to the question, what shall be deemed the house of the party 
 within the meaning of domus niansionalis, it turns upon the fact of 
 there being an outer door or not ; for every house certainly must have 
 an outer door. 
 
 Thus chambers in inns of court and in colleges, which have each 
 of them an outer door that opens upon the common staircase, have 
 been held, in cases of burglary, to be the houses of the respective 
 occupiers. From the nature of these buildings, they are all as 
 several houses, and have separate outer doors, which are at the extre- 
 mity of the obstruction ; because the staircase is no outer door : 
 again, they are enjoyed as separate property; iu Liticolns Inn they 
 have separate estates of inheritance, in the others they have estates 
 for life, and in colleges as long as they reside. So, if that which 
 was one house originally comes to be divided into separate tenements, 
 and there is a distinct outer door to each, they will be separate houses, 
 as Newcastle House, 'i he distinction therefore can only be between 
 several outer doors, and one outer door {a). 
 
 Therefore if one ^ hire a part of a house to lodge in, which is 
 actually divided from the rest, and have a door of his own to the street, 
 a burglary committed therein may be alleged in domo fnatisionali of 
 such person (b) j and even if the owner occupy a shop or cellar in 
 the house, unless he sleep therein, it is the mansion of each lodger, 
 although there be but one outer door •, but it is otherwise, if the 
 owner sleep therein [c). 
 
 A house, in fact, wherein a man dwells for only part of the year, 
 or which he has actually hired, but not moved into ; or a chamber in 
 an inn of court, or a house hired by a man's wife, for her separate 
 residence v/ithout his knowledge, " for it is the husband's house," 
 are all of them sufficient to satisfy the words domus mansionalts {d). 
 
 But if the person had taken an apartment as a shop or workhouse, 
 lor his use in the day-time only, it seems that a felony therein cannot 
 be alleged to have been committed in the mansion-house ; not of 
 him that lets it, because it is severed by the lease from that part of 
 the house whicli belongs to him, nor of him to whom it is let, be- 
 cause he does not take it to lodge in. But if he sleep in any part of 
 the building, however distant from the shop, it may be allcdged to 
 be his mansion-house ; provided the owner does not sleep under the 
 same roof also {c). 
 
 So where a burglary is committed in the apartments of one who 
 lodges in a house, the circumstance of the owner living in it, or 
 occupying only a shop or cellar, in which he docs not sleep, makes 
 
 (rt) L'owj). 8. (//) I H.i\v, I". C 164. s. 15. (c) Ibid. a. b. 
 
 ^J) ll.ul. l6j. ^r) Jbui. 164. i. l6.
 
 !^ect. II.] Ihunjrum Year io Year. — Of Lodgings. 163 
 
 a very material difFerence as to the form of the indictment : for ire 
 the latter case, the lodger has the outer door entirely to himself, and 
 the burglary in such case must be laid in the house of the lodger ; 
 but it is otherwise in the former case, for there it must be laid in the 
 house of the owner [a). 
 
 If with intent to rob a house, a person takes lodgings in it, and 
 then fall on the landlord and rob him, such person is guilty of bur- 
 glary(^). 
 
 As to the Stat. 39 Eliz. c, 15. making it a capital felony to commit 
 a larceny of goods to the valae of 5J^. in a dwelling-house in the day- 
 time, it seems agreed that a chamber in one of the inns of court, 
 wherein a person usually lodges,, is properly a dwelling-house within 
 the statute ; but a lodging in Whitehall or Somerset House is not (c). 
 
 But this privilege of a lodger's tenement being regarded as his man- 
 sion-house, extends only to the purposes of protection to a man and 
 his family, and is to be taken strictly (jl). A bailiff, therefore, in the 
 execution of mesne process may break open the door of a lodger, 
 having first gained peaceable entrance at the outer door of the house ; 
 for the rule, that every man's house is his castle, must be confined to 
 the breach of windows and of outer doors intended for the security 
 of the house against persons from without endeavouring to break in {e). 
 
 For the protection of landlords against a species of pillage to which 
 persons letting ready furnished lodgings are much exposed, it being 
 doubted whether the taking things in a lodging -room was more than 
 a breach of trust at common law, because of their being lent to a 
 person and lawfully in their possession, therefore the taking away 
 from such lodgings, with an intent to steal, embezzle, or purloin any 
 chattel, bedding or furniture, which by contract or agreement they are 
 to use, or shall be let to them with the said lodgings, is made larceny 
 and felony {f). — A man and his wife cannot both be guilty of the 
 same larceny in robbing their lodgings ; for if they both had com- 
 mitted it together, the woman must be acquitted, for she is under his 
 coercion. If the lodgings be let jointly, it is the taking of the hus- 
 band only (^). 
 
 In respect to letting houses, though, as has been before observed (hi), 
 there is no distinction in reason between houses and land^ as to the 
 time of giving notice to quit in yearly tenancies, it being necessary 
 that both should be governed by one rule, and that where rent is Re- 
 served quarterly, it does not dispense with the regular six months* no- 
 tice to quit required by law, but is merely a collateral matter (/') : yet 
 in the case of a house being let for a shorter term than a year, the 
 holding assmiilates itself to that of a lodging : therefore where a 
 
 («) Cowp. 8, {b) Haw. p. C. 161. s. 5. (0 2 Haw. P. C. 500. s. 97. Cro. Car. 47. 
 {d) Cowp. I. (<?) Fost. C. L. tit. Homicide, c. 8. s. zo. (/) Stat. 5 W. & M. c. 9. s. 5. 
 {g) I Haw. P,C. 137. n. J, {h) i T. R. i6z. {i) Esp. 166.
 
 170 Of strict Tenants at Will. [Chap. VH. 
 
 house was taken by the month, it was held that a month's notice was 
 sufficient : for a notice to quit has reference in all cases to the let- 
 ting [a). 
 
 A tenant from week to week, continuing in possession after the ex- 
 piration of a notice to quit and demand made, is not liable to an ac- 
 tion on the Stat. 4 Geo. 3d. c. 28. for double value {b). 
 
 If the lodgings be furnished, it may be as well to have a schedule 
 of the goods they contain affixed to the agreement, if there be one in 
 writing ; in the same manner as in the case of a lease of a house with 
 goods (f). 
 
 Section III. Of strict Tenants at Will. 
 
 Although courts of law have of late years leaned as much as pos- 
 sible against construing demises {d)j where no certain term is men- 
 tioned, to be tenancies at will, but (as we have just seen) have rather 
 held them to be tenancies from year to year so long as both parties 
 please, especially where an annual rent is reserved {e) ; and although 
 it is said, that in the country, leases at will in the strict legal notion 
 of a lease at will, being found extremely inconvenient, exist only no- 
 tionally, the observation, Mr. Hargrove thinks, means, not that estates 
 at will may not arise now as well as formerly, but only that it is no 
 longer usual to create such estates by express words, and that the 
 Judges incline strongly against implying them {/). 
 
 Tenant at will is where lands or tenements are let by one man to 
 another, to have and to hold to him at the will of the lessor, by force 
 of which lease the lessee is in possession. In this case, the lessee is 
 called tenant at will, because he hath no certain nor sure estate, for 
 the lessor may put him out at what time it pleaseth him. But every 
 lease at will must be at the will of both parties (g). 
 
 If a termor grants the land generally, the grantee is but tenant at 
 will ; for it does not appear that the grantor meant to pass his whole 
 interest, and this is enough to satisfy the grant. — But if a termor de- 
 vises the land, all his term passes ; for the devisee cannot be tenant at 
 will, because the devisor must die before the devise can take effect ; 
 and one cannot be tenant at will to a dead man [h). 
 
 If one lease for years, with a proviso, that lessor may enter at his 
 will, it is a lease at will (i). 
 
 So, if one demises a tenement to another excepting the new house 
 for his habitation, when he pleases to stay there, and at other times 
 for the use of the lessee ; the lessee has the new house as tenant at 
 will {k). 
 
 (a) Esp. 94. (A) a Campb. 453- W f^'d' """■' »4», 3- (.d) » Bl. Com. 147. 
 
 (/) 3 Burr. R. 1609. (/) Co. Lit-JJ- (.c) "''d- (,l>) I Salk. 436. 
 
 (.) Co. Lit. 55. a. {i) 4 Mod. 9.
 
 Sect. III.] Of strict Tenants at Will 171 
 
 So, if one give to another licence to take the profits of his land 
 without mentioning for how long a period, or reserving an annual 
 rent, it shall be a lease at will («). 
 
 A man who enters and enjoys under a void lease, and pays rent, is 
 a tenant at will, and not a disseisor {b). 
 
 But if a man enter by colour of a grant or conveyance which was 
 void, and did not stand with the rule of law ; he shall be disseisor, and 
 not a tenant at will (f). 
 
 A mortgagor is in some respects strictly tenant at will, and in many 
 cases is like a tenant at will (d). 
 
 Therefore if a mortgagee covenants that the mortgagor shall take 
 the profits till default of payment; or that the mortgagor and his 
 heirs shall take the profits, in the one case the mortgagor, and in the 
 other his heir after his death, shall be tenant at will [e). 
 
 But if mortgagee covenants that he will not take the profits till de- 
 fault of payment, and the mortgagor enters immediately; he shall 
 not be tenant at will ; but only at sufferance ; for it was not agreed 
 that he should take, but that the mortgagee should not take [f). 
 
 A mortgagor however is not properly a tenant at will to the mort- 
 gagee, for he is not to pay him rent : he is indeed as much if not 
 more like a receiver than a tenant at will ; though in truth he is not 
 either ( g). He is only a tenant at will, because he is not entitled to 
 the growing crops after the will is determined ; for the mortgagee 
 may bring his ejectment at any moment that he will ; and he is enti- 
 tled to the estate as it is with all the crops growing on it {h).- 
 
 If tenant for years continues after his term, and his rent is paid 
 and accepted as before, it is said that he shall be tenant at will j but 
 that while he so continues, till his rent is paid and accepted, he is 
 tenant at sufferance or rather at will. This however would be now 
 construed to be a tenancy from year to year (f). 
 
 When tenancy at will was more known than it is now, the relation 
 might be determined at any time ; not as to those matters which du- 
 ring the tenancy remained a common interest between the parties ; 
 but as to any new contract the will might be instantly determined. 
 When that interest was converted into the tenancy from year to year, 
 the law fixed one positive rule for six months' notice ; a rule that may 
 in many cases be very convenien' , m others, as for instance, that of 
 nursery grounds, most inconvenient (i). 
 
 If a tenant whose lease is expi.cd 's permitted to continue in pos- 
 session, pending a. treaty for a further lease, he is not a tenant from 
 
 (a) 3 Salk. 223. {b) I Wils. 176. {c) Com. Dig. tit. Estates. (H. a.) 
 
 (d) I T. R. 382. (e) Com. Dig. ut ante (H. I.) Cro. Jac. 660. 
 
 (/) Com. Dig. tit. Estates (H. %.) (g) Doug. zSt, 3. (A) i T. R. 383. 
 
 (i) Com. Dig. tit. Estates (H. I. and 1. 1.) {i) i6 Ves. I. 57. 
 
 6
 
 172 Of strict Tenants at Will. [Chap. VII. 
 
 year to year, but so strictly at will, that he may be turned out of pos- 
 session without notice [a). 
 
 A lessee at will may take a release of the inheritance, and thereby 
 his estate is enlarged ; or a confirmation for his life, upon which a 
 remainder may be dependant {b). 
 
 Where a lease is made at will, rent being payable quarterly, the 
 lessee, after a quarter of a year is commenced, may determine his 
 will, but then he must pay that quarter's rent {c) ; and if the lessor 
 determine his will after the commencement of a quarter, he shall lose 
 his rent for that quarter. So, if half yearly (d). 
 
 Tenant at will may be ousted also by express words, or by impli- 
 cation : as if lessor come upon the land, and say tliut lessee shall 
 not continue over, he may determine his will, though in the absence 
 of the lessee. But words oiF the land will not, till notice to the 
 lessee {e). 
 
 Any act of desertion, or which is inconsistent with an estate at 
 will, done by the tenant, operates as a determination of the estate \ 
 as assignment over to another, or commission of an act of waste (/"), 
 
 If therefore tenant at will take upon him to make a lease for years, 
 which is a greater estate than he may make, that act is a disseisin 
 [and a determination of the will.] [g). 
 
 But though lessee at will make a lease to commence at a future 
 day, it does not amount to a determination, till the lease commences 
 in point of interest. So of an extent, till the liberate ,- and of out- 
 lawry, till seizure [h). 
 
 Though a person let into possession under an agreement to pur- 
 chase, may be considered as tenant at will, yet his admission of a 
 fictitious lease by entering into the common consent rule, is not a 
 constructive determination of the will whereon an ejectment is main- 
 tainable (/). 
 
 But, though a tenant at will is at the will of both parties, the will 
 shall not be determined by every act (k). 
 
 Thus, where a feme lessee at will takes husband, or a feme makes 
 a lease at will and takes husband, although the feme hath put her will 
 in her husband, yet it shall not be said to be a determination without 
 the election of the lessor or the husband (/). 
 
 In tenancies at will the rent becomes due in consideration of tlie 
 occupation ; which, it is said, must therefore be averred (w). 
 
 Tenant at will has an estate that he cannot forfeit for treason (//). 
 
 (a) a Ksp. R. 717. (i) Com. Dig. ut .mtr (H.3.) 
 
 (f) 3 8alk. 121,413. 4 Mod. 79. i 1-d. Raym. 702. a Ibid. 1008. 
 
 {d) Com. Dig.tit. liitjtcs (H. y.) {c) Ibid. (H. 6.) 
 
 (/) Cruise's Dig. tit. ix. s. 17. 1 Jvisf. 57. n. SS ^- "• 12. {£) Cio. C.nt. 304. 
 
 (ii) Com. Dig. ut ante (i) 13 Hast. 2io. (t) Cro. Car, 303. 
 
 (/) Ibid. 304. (m) 1 Ld. Ru)m. 171. S.tlk. 209. (") 1 Wilh. 176.
 
 [ 173 ] 
 
 Section IV. Of Tenants at sufferance^ 
 
 Tenant at sufferance is he who enters by lawful demise or title, 
 and afterwards wrongfully continues in possession ; as if tenant pur 
 outer vie continues in possession after the death of the cestui que vie {a). 
 
 So, any one who continues in possession without agreement, after 
 a particular estate is ended (b). 
 
 There is a great diversity therefore between a tenant at will and a 
 tenant at sufferance ; for tenant at will is always by right, whereas 
 tenant by sufferance entereth by a lawful lease, and holdeth over by 
 wrong [c). 
 
 But against the king there is no tenant at sufferance, for the king 
 not being capable of committing laches, such person will be an in- 
 truder [d). 
 
 So, if a guardian continue in possession after the full age of the 
 heir : he is not a tenant by sufferance, but an abator {e). 
 
 Mortgagee covenants that mortgagor shall quietly enjoy till default 
 of payment, and assigns : after assignment, mortgagor is only tenant 
 at sufferance ; for his continuing in possession does not turn the term 
 to a right (/). 
 
 {a) Co. Lit. 57. b. (4) Com. Dig. ut ante. (e) Co. Lit. 57 b. (J) Ibid . 
 
 (<r) Ibid.&a7l. a. (/)Salk.a45. 
 
 CHAPTER VIII. 
 
 Of the general Incidents to Leases. 
 
 Section I. Rent, when and hoxv payable. 
 
 Of Public ImpositionSy parochial and parliamentary. 
 
 Section II. Taxes. 
 Section III. Poor's Rate. 
 
 Section I. Rent, when and how payable, S^c. 
 
 IN a preceding part of this work we have had occasion to explain 
 the nature of rent, and the different kinds thereof. 
 It must be remembered, that a rent cannot at law issue out of a 
 term of years, but must come out of the reversion -, therefore, if a 
 lessee assign his term, he cannot distrain for the rent without expressly 
 reserving a power for that purpose {a). 
 
 (-1) a Wils. 375-
 
 174 Rent, 'when and how payable, S^c. [Chap* VIII. 
 
 The reservation of rent ought to be certain ; for if a man demise, 
 rendering " after the rate of" 1 8/. per ann. while the lease continues, 
 it will be void ; for it does not appear what rent he shall pay in cer- 
 tain, or at what time : wherein it differs from a contract for goods, 
 for in such case the jury may judge of the value [a). 
 
 Reservation of Rent. — As to what is deemed a good reservation of 
 rent, if a man make a lease of Plackacre^ to commence in futuro, and 
 of Whiteacre^ to begin in present ■ rendering rent payable at Michael- 
 mas before the commencement o^ ■ he term in Blackacre^ this is a re- 
 servation immediately, for it is bat one entire rent, and as such is 
 payable according to the reservation {b). 
 
 So it is, if a man grants a future interest in land ; as if it be a 
 lease for years to commence five years after the making of the lease, 
 the lessor may reserve a rent immediately, because this is a good con- 
 tract to oblige the lessee to pay, and the lessor may have an action of 
 debt on the contract, and may likewise have his remedy by distress 
 for the arrears when the lessor comes into possession [c). 
 
 A lease of the vesture or herbage of the land, reserving rent, is 
 good ; because the lessor may come upon the land to distrain the les- 
 see's beasts feeding thereon [d). — But a reservation of grass, herbage, 
 or other vesture of the land would be bad, because they are part of 
 the thing demised {e). 
 
 So, where by articles of agreement indented between A. and B. it is 
 covenanted and agreed, that A. doth let Blackacre to B. for five years, 
 provided always that B. shall pay at Michaelmas and Lady-day lo/. by- 
 even portions yearly ; this proviso is a good reservation of the rent, 
 for as the words amount to an immediate demise of the land, the rent, 
 which is but a retribution for the land, ought to be paid immediately; 
 and it cannot be construed to be a sum in gross, because by the words 
 of the articles, (which being indented are the words of both parties,) 
 it is to be paid yearly (^ ). 
 
 A difference is here to be noted between a rent reserved entire in the 
 reddendum upon a demise of several things in the same lease, (for the 
 reservation shall be taken as one and entire) and where the rent is not 
 at first reserved entire, but upon the reservation is several and appor- 
 tioned to the several things demised. — For instance, if a lease be made 
 of several houses, rendering the annual rent of 5/. at the two usual 
 feasts, •u/'z. for one house 3/., for another ! oj-. and for the rest of the 
 houses the residue of the said rent of 5/. with a clause of re-entry into 
 all the houses for non-payment of any parcel of the rent ; this is but 
 one reservation of one entire rent, because all the houses were leased, 
 and the 5/. was reserved as one entire rent for them all, and the " viz.'* 
 
 (a) I Salk. 262. 4 Mod. 79. (A) Glib, on Rents, aj. (<:) Ibid. 
 
 (-/) Ibid. a6. {e) Co. Lit. 47. (/) Gilb. on Renti, 33.
 
 Sect. 1.3 Rent, when and how payable. S^c, 1 75 
 
 afterwards does not alter the nature of the reservation, but only de- 
 clares the value of each house (a). 
 
 But if the lease had been of three houses, rendering for one house 
 3/. for another 20s. and for the third 20/. with a condition to re-enter 
 into all for the non-payment of any parcel ; these are three several 
 reservations, and in the nature of three distinct demises, for which the 
 avowries must likewise be several ; for each house in this case is only 
 chargeable with its own rent, the entire sum being not at first reserv- 
 ed out of all the houses demised, and afterwards apportioned to the 
 several houses according to their respective value, as in the former 
 case ; but the particular sums are at first reserved out of the several 
 houses, and therefore the non-payment of the rent of one house, can 
 be no cause of entry into another [b). 
 
 So, if one demises the scite and demesnes of a manor, and also the 
 manor itself, and all other lands and tenements thereunto belonging, 
 reserving for the said scite and demesnes and premises therewith letten 
 9/. this is not a joint, but a several lease, viz. one lease for the scite 
 and demesnes, and another for the residue of the manor, and the re- 
 servations also are several and distinct (r ). 
 
 So, if a lease be made of two manors habendumy one manor for 20s. 
 and the other manor for i os. these are several reservations : and each 
 manor is charged with its respective rent [d). 
 
 If the respective rents were equal sums, it would make no difference 
 it seems ; so as the words in the habendum make it as several leases. 
 
 But where one made a lease of a cellar for a year, and if at the 
 end of the year the parties should agree that the demise should con- 
 tinue, then to have and to hold the same for three years, " rendering 
 from that time annually during the said term 40^." this is one entire 
 reservation, as well for the first year as for the three years; for the 
 words dicto term'ino extend to both terms indifferently {e). 
 
 As there may be several reservations in the same lease, by the 
 words of the parties, so there may by act of law : as where a lease is 
 made to a bishop in his public capacity, and J. S. reserving a rent ; 
 the lessees are not joint-tenants, but tenants in common, and there- 
 fore the reservation must be several, and the reversion to which the 
 rent is incident must follow the nature of the particular estates on 
 which it depends, and therefore must be several also(/"). 
 
 So, if there be two tenants in common, and they make a lease for 
 life, rendering rent, this reservation, though made by joint words, 
 shall follow the nature of the reversion, which is several in the lessors ; 
 and therefore they shall be put to their several assises, if they be dis- 
 seised, as if they had been distinct reservations. — But if the reserva- 
 tion had been of a horse, or hawk, or any other thing not in its own 
 
 (a) Gilb, on Rents, 34. (*) Ibid. . (<;) Ibid. 36. Cro. Eliz. 341. 
 
 (J) Gilb. on Rents, 36. (*) Ibid. (/) Ibid. 37.
 
 176 Rent, wheii and how payable , S^c. [Chap. VII f. 
 
 nature severable, then, for the necessity of the case, the law admits 
 them to join in one assise (a). 
 
 Upon a surrender reserving rent, though the rent is not good by 
 way of reservation, yet it shall be so by way of contract. 
 
 If a lessee, however, simply covenant to pay such a sum yearly, 
 without mentioning it as a consideration of the demise of the pre- 
 mises, it has been held to be not a rent, but a sum jn gross {b). 
 
 In an action of debt on an agreement, it appeared that the plaintiff 
 covenanted by the agreement to grant a lease of certain premises upon 
 certain conditions therein specified and at a certain rent. The defen- 
 dant covenanted to pay a certain rent, and perform certain conditions 
 on which the lease was to be granted. The declaration averred that 
 the defendant had entered, upon a breach for non-payment of rent. 
 A former lease to one Edmunds had subsisted, at the expiration of 
 which that mentioned in the agreement as to be granted to the defen- 
 dant, was to commence ; the declaration averred that Edmunds* s lease 
 had expired, and that the defendant had entered; but not that any 
 lease had been made. There was also a count for use and occupa- 
 tion : — Upon demurrer to the first special counts j Lord Kenyotiy C. J. 
 said, " I have always admired an expression of Lord Hardzvichey ' that 
 there is no magic in words.' It appears that a rent was to become 
 due on a certain day mentioned : perhaps this money to be paid is not 
 strictly to be called rent, the relation of landlord and tenant not 
 having then commenced: but still the parties intended that this 
 money should be paid, according to the best construction I can give 
 of the agreement. Collecting therefore the meaning of the parties, 
 without encumbering myself with the technical meaning of the word 
 renty I think the case is with the plaintiff. The other Judges agreed 
 in opinion with Lord Kenyan. They observed, that the conditions 
 mentioned in the lease were the conditions of sale at the auction at 
 which it was bargained for. The intent seemed to be, that the de- 
 fendant should, after the determination of Edmunds's lease, take pos- 
 session and proceed to cover in the house. On the house being 
 covered in, the plaintiffs were to grant a lease j but in order to insti- 
 gate the defendant to do this, he was to pay annually a certain sum 
 before the granting of the lease, equal to what he was to pay after- 
 wards, the whole being denominated " rent." If that were not 
 meant, the covenant to pay rent was useless, for the lease, when 
 made, would certainly contain such a covenant. — The deed and con- 
 ditions of sale were very obscurely worded, though it appeared that 
 the city of London had used that form for upwards of a century {c). 
 
 Note also, a diversity between a reservation, which is always of a 
 thing not //; esscy but newly created or reserved out of the land or tene- 
 
 (a) Gilb. on Rents, j;. (i) i T. R. 441. 
 
 (/) City of London v. Dias, T. "i". 41 G. 3. 'I'.'s MSS
 
 Sect. I.J ]^e?i.t, wJien and how paj/aUe, S^r. 177 
 
 ment demised ; and an exception, which is ever of part of the thing 
 granted, and of a thing in esse (a). 
 
 Rent reserved upon a lease issuing out of copyholds and freeholds 
 (the lease of the copyhold being made with licence) was held good (^). 
 But the rent shall be considered as issuing out of the freehold only, as 
 in the case of rent issuing out of lands and goods. 
 
 In a lease of lands, for which the lessor is bound to reserve the 
 best rent that can be gotten, he must reserve the best rent that can be 
 gotten at the time the lease is made, without any regard to a former 
 lease in which the rent might have been fairly reserved on account of 
 money to have been expended in improvements (f). 
 
 If there be an order, confirmed by parliament, that an indenture of 
 demise, upon which a rent was reserved, should be vacated and can- 
 celled, and that a stranger should enter into the lands demised and re- 
 ceive the profits, yet the same rent in value granted by the lessee for 
 the better securing the rent reserved, is not discharged, although the 
 intention appears that there should be but one rent paid (d). 
 
 The rent must be reserved to the lessor himself, and not to a 
 stranger (e) ; for it ought to be made to him from whom the land 
 passes ; and where one reserves rent to a stranger, neither the heir nor 
 stranger shall have it (f). 
 
 Therefore, if a man, and B. his son, reciting that B. is his heir ap- 
 parent, let for years, to commence after the death of the father, (who 
 was sole seised) and rendering rent to the said B. it will be void; for 
 a reservation to him by his proper name, and not to him as heir, is the 
 same as if it were to a stranger. — But the king may make a reservation 
 of rent to a stranger (^). 
 
 So, if a lease for years be made, rendering rent to the heirs of the 
 lessor, the reservation, it is said, is bad, because not to the lessor 
 first {/}). 
 
 The clearest and safest way is, to reserve the rent generally during 
 the term, without saying to whom, and leave it to be distributed by 
 the law. For if the reservation of rent be general, the law gene- 
 rally directs it according to the intent and the nature of the thing de- 
 mised (z). 
 
 This has always been taken most in advantage of the lessee and 
 against the lessor, and yet so as the rent be paid during the time (k) ; 
 for if no person be mentioned, the reservation shall be extended by 
 implication of law, to the lessor and his heirs (/). 
 
 But if the reservation be only to the lessor, and the deed do not say 
 
 (a) Co. Lit. 47. a. (-5) Cro. Eliz. 6za. (c) Esp. R. 80. 
 
 (d) I Saund. 196. {e) Co. Lit. 47, 143. b. (/) aSaund. 370. 
 
 (g) Com. Dig. tit. Rent. (B. 5.) (A) 8 Co. R. 70. (;) Ibid, i Vent. 161. 
 
 (i) Shep. Touch. 114. (/) Dyer, 5. 
 
 N
 
 178 Rent, uiiien and ho*tv payable, S^c. [Chap. VIII. 
 
 also " to his heirs, executors, ^c." this reservation shall continue 
 onljr for the life-time of the lessor, and shall determine with his death : 
 for expressum facit cessare taciturn [a). 
 
 So, if a man reserved rent to him or his heir, it will be good to 
 him for his life and void to the heir {h). So also if the lessor be seised 
 in fee, and make a lease for life or years, rendering rent to the lessor, 
 or his executcr, or assigns ; in this case the rent shall continue only 
 for the life of the lessor {/). 
 
 But if the reservation be to the lessor, his heirs and assigns, in the 
 copulative, or in the disjunctive to him or his heirs, or to him or his 
 successors, (if it be the lease of a corporation,) during the term j then 
 all the assignees of the reversion shall enjoy it {d). 
 
 So, if the reservation be thus : " yielding and paying so much rent," 
 without any more words, this shall be taken for all the time of the 
 estate, and shall go to him in reversion accordingly [e). 
 
 For, if the rent be made payable yearly, without saying durnig the 
 term, the payment must be made during the term(/). 
 
 Therefore if a man seised of land in fee makes a lease for years, re- 
 serving rent to him and his assigns during the term, this reservation 
 shall not determine by the death of the lessor as was once wrongly 
 ruled, but the rent shall go to his heir ig) ; for though there be no 
 mention of his heirs in the reservation, yet there are words which 
 evidently declare the intention of the lessor to be that the payment of 
 the rent shall be of equal duration with the lease, the lessor having 
 expressly provided that it shall be paid during the term ; consequently 
 the rent must be carried over to the heir, who comes into the inheri- 
 tance after the death of the lessor and would have succeeded in pos- 
 session of the estate if no lease had been made : and if the lessor 
 assigns over his reversion, the assignee shall have the rent as incident 
 to it; because the rent is to continue during the term; therefore it 
 must follow the reversion, since the lessor made no particular dispo- 
 sition of it separate from the reversion [h). 
 
 If tenant in tail demise for years, rendering rent to him and his 
 heirs, this goes to the heir in tail (z). 
 
 If tenant for life, with power to make leases, demises, rendering 
 rent to him, his heirs, and assigns, it shall be adjudged to him in 
 remainder {k). 
 
 One seised in fee lets for years reserving rent " during the term,'* 
 to the lessor, his executors, administrators and assigns, and lessee 
 covenants to pay it accordingly, and the lessor devises the reversion 
 
 (a) Shtp. Touch. 114. -u'lJe etiam % Wms.'s Siuind. 368. n. (a.) {b) Co. Lit. ai4. a. 
 
 {c) Com. l)i{^. tit. Rent. (13. 5.) Shep. 'roiicli. »/ <vn/<-. {d) Ibid. {e) Ibid. 
 
 (/) Moor, 459. {f,) Gilb. on Rents, 66, 7. Rhci). 'roiich. 115, (/.) Cro. %\\i. ai;. 
 (/') Com. Di/. tit. Rrnt. (B. 5.) (>) Ibid. 
 
 7
 
 Sect. L] Bent, when and how payable, S^-c, 1 79 
 
 and dies ; the reservation is good to continue the rent during the whole 
 term, and the devisee shall have an action of covenant for non-pay- 
 ment (a). 
 
 If a copyholder by licence leases, rendering rent to him and his 
 wife, and his heirs, where by the custom the wife has her free-bench, 
 the wife shall have the rent as incident to the reversion (^). 
 
 If a lease be made by a husband, reserving rent to him for life, and 
 to his wife for life, it will be a reservation during the life of the sur- 
 vivor (c). 
 
 A posthumous child, born after the next rent-day had incurred, 
 after the death of his father, is under the stat, 10 ^ 11 7F". 3. c. i5. 
 intitled to the intermediate profits of the lands settled, as well as the 
 lands themselves ; for that act of parliament was made to enable 
 posthumous children to take estates as if born in their father's life 
 time, though there should be no estate limited to trustees to preserve 
 the contingent remainders (^). — Indeed it is now laid down as a fixed 
 principle, that wherever such consideration would be for his benefit, 
 a child in ventre sa mere shall be considered as absolutely born ; for all 
 the cases establish this point, that there is no distinction between a 
 child in ventre sa mere and one actually born {e). 
 
 It may be observed that " heir" is the only word of privity in law 
 requisite to the reservation of rents, and in conditions ; the heir being, 
 in representation, in point of taking by inheritance, the same person 
 with the ancestor (/). 
 
 A man may reserve a rent to himself for his life and a different 
 rent to his heir {g). 
 
 If there be two joint-tenants, and they make a lease for years by 
 parol, or deed-poll, reserving rent to one only, yet it shall enure to 
 both. But if the lease had been indented, the reservation should have 
 been good to him only to whom it was made, and the other should 
 have taken nothing. — The reason of the difference is this : where the 
 lease is by deed-poll, or by parol, the rent shall follow the reversion, 
 which is jointly in both lessors ; and the rather, because the rent 
 being something given to the joint-tenant to whom it is reserved in 
 retribution for the land, he ought to be seised of the rent in the same 
 manner as he is of the land demised, which is equally for the benefit 
 of his companion and himself; but where the lease is by deed indented, 
 they are estopped to claim the rent in any other manner than it is 
 reserved by the deed, because the indenture is the deed of each party, 
 and no man shall be allowed to recede from his own solemn act. Co. 
 Litt. 47. a. Gilb. on Rents, 63. 
 
 («) a J aund. 367. S. C. a Lev. 13. Sir T. Raym. 213. i Vent. 148, 161. a Keb. 798, 
 819, 833 839. {b) Com. Dig. tit. Rent. (B. 5.) (<:) Ibid. (B. 7.) (d) 3 Atk. 203. 
 (0 J T. «.. 60, 6i. Watk. L. Des. a H. Bl. 401. i P. Wms. 345. (/) Hob. 130. 
 
 (») Com Dig. ut ante. Co. Lit. ai3. b. ai4. a. 
 
 N2
 
 ISO Rent, wlien and how payable, c^c [Chap. VIII. 
 
 So, if two joint-tenants let by deed to A. rendering to them lox. 
 per ann. and only one seals the deed, the demise shall be but of a 
 moiety, rendering only ^s. per ann. [a). 
 
 If a rent be payable yearly without saying " during the said term," 
 yet the payment must be made every year during the continuance of 
 the lease {b). 
 
 If therefore a lease be made for years, provided that the lessor shall 
 pay for it at Michaelmas and Lady-day lol. by equal portions « during 
 the term," though this rent is not made payable yearly, yet the law 
 construes it to be so, because it is payable at the two feasts during the 
 term, and then consequently it must be paid yearly ; for if there be 
 any omission of the payments in any one year during the lease, it is 
 not paid at the two feasts during the term [c). 
 
 So, if a man demise for five years, rendering loo/. to be paid by 
 equal portions during the term, it shall be paid yearly, though that 
 word was omitted [d). 
 
 If a lease be made rendering rent at two usual feasts of the year, 
 without specifying what feasts, the law construes such payments to be 
 made at Michaelmas and Lady-day ^ because those are the usual days 
 appointed in contracts of this nature for payment {e). 
 
 So, if a man grants a rent of lo/. to another payable at the two 
 usual feasts of the year, this shall be intended by equal portions, 
 though not so mentioned in the deed ; because where there are two 
 several days appointed for payment, it is the most equal construction, 
 that a moiety of the rent shall be paid at each day [f). 
 
 If a man make a lease to another the 6th day of August^ rendering 
 yearly the rent of 40s. at two terms of the year, viz. at Lady-day and 
 Afichaelmasj by equal portions, though in this case by the appointment 
 of the parties. Lady-day be the first term mentioned, yet the first pay- 
 ment shall be made at Michaelmas ensuing the date of the lease •, for 
 ■without such transposition of the words of the deed, the intention of 
 the parties could never be fulfilled, because the rent is reserved an- 
 nually, and the lessor would lose the profits of one half year if the 
 rent was not payable the first Michaelmas ; and the lessee must enjoy 
 the land from the date of the lease to the first Michaelmas without 
 paying any thing; and so likewise from the last Lady-day of the term 
 to the expiration of it ; because though the rent ended in August, yet 
 the payment was not to be made till the Michaelmas ioWo^'m^y before 
 which time the lease expired (^). 
 
 So, if a man makes a lease the ist of May^ reserving rent payable 
 quarterly: this shall be intended quarterly from the making of the 
 lease ; for if the beginning of the quarter should be construed to be 
 
 {a) Com. Dig. tit. Rent. (B. 6.) 
 
 {h) Gilb. on Rents, 51. 
 
 {c) Ibid. 50. 
 
 (<0 Com. Dig. tit. Rent. (B. 8.) 
 
 {{) Gilb, on Rents, ji. 
 is) "''J' 49- 
 
 (/; Ibid,
 
 Sect. I.] Kent, when aticl how pai/able, S^c, 181 
 
 any other day than the date of the lease, the lessor would lose the pro- 
 fits of his land for some time, and consequently not have quarterly 
 payment made during the continuance of the lease (a). 
 
 A rent was reserved half yearly from Michaelmas ; an action brought 
 for half a year's rent ending the 25th day of Marchy which was not 
 half a year from Michaelmas ; and the rent being reserved half yearly 
 without mentioning any day, there must be a full half year before it 
 is due ; but otherwise, where it is made payable at such and such 
 feasts, quarterly or half yearly ; there though the quarter or half year 
 in reality be not then expired, yet, as to the reservation and payment, 
 it is {b). 
 
 If rent be reserved quarterly or half yearly, each apportionment of 
 rent is a distinct debt (c). 
 
 Where there are special days of payment limited upon the reddendum^ 
 the rent ought to be computed according to the reddendum^ and not 
 according to the habendum : but where the reservation is general, as half 
 yearly or quarterly, and no special days are mentioned, there the half 
 year or quarter must be computed according to the habendum (d). 
 
 If tenant in fee makes a lease for years to begin at Michaelmas, ren- 
 dering 100/, per annum at Michaelmas and Lady-day ^ or within ten 
 days after every feast; it seems to be the better opinion that the rent is 
 due the last Michaelmas-day of the term, without any regard to the 
 ten days ; for the reservation being annual, at the two feasts, or 
 within ten days, it shall be construed to be at the end of every ten 
 days during the termy as most agreeable to the design of the contract ; 
 and therefore the law rejects the ten days after the last feast, because 
 the term ending at Michaelmas y there cannot be ten days after it dur- 
 ing the term, for payment of the rent. This construction is the more 
 reasonable, because to give the lessee his election to make the last 
 payment either at Michaelmas or ten days after, were to put it in his 
 power to avoid payment of the last half year's rent : for if it could be 
 construed not to be due till the end of the ten days, the lessor could 
 never oblige him to pay it, because then the term would be ended 
 before the rent became due ; for the addition of the ten days was only 
 to enlarge the time of payment, but not to prevent the payment, or 
 to remit any part of the rent it). 
 
 If a man, possessed of a term of one hundred years, make a lease 
 for fifty, reserving rent to himself and his heirs, this rent determines 
 at his death ; for his heir cannot have it, because he cannot succeed 
 to the estate, it being but a chattel interest, to which the rent, if it 
 continues after the life of the lessor, must belong ; and the execu- 
 tors cannot have it, because there are no words to carry it to them (/"). 
 
 (a) GJlb. on Rents, 50. {h) 7 Mod. 97. (<r) a Vent. 119. {d) ^ L4. 
 
 Raym. Sio. i Salk. 141. 3. c. (') a Ld. Raym. oZO. I Salk. 33. Cio. Jac. az;, 235. 
 
 (/) Gilb. ut ante, 66.
 
 182 Rent; apportionment q/^ [Cliap. VIII. 
 
 [It would however form a part of the residuary estate, It is con- 
 ceived, and be assets in the hands of the executor or administrator : 
 and this construction is warranted by Lord Hale expressly in the 
 case cited. For a term of years, being a chattel real, is assets in the 
 hands of the executor or administrator ; and if such be the nature of 
 the thing demised, the rent reserved upon it will of course accom- 
 pany its principal, and not go to the heir {a)]. 
 
 Where, however, an inheritor reserves rents, upon a lease for 
 years, this shall not go to the executor, but to the heir, with the re- 
 version ; other than arrearages of it behind at the death of the tes- 
 tator (b). 
 
 Therefore where the lessor died upon Michaelmas-day between 
 three and four o'clock in the afternoon, before sun-set, the rent being 
 reserved payably on Michaelmas- day y the question was, whether the 
 executor or the heir, or, which is the same, the jointress of the 
 lessor, should have the rent ? It was decreed that the rent should 
 go to the heir or jointress, because at the time of the death of the 
 lessor, there was no remedy nor means to compel the payment 
 thereof (c). 
 
 Apportionment of rent. — At common law, rent cannot be appor- 
 tioned, neither can a rent-charge, or rent-seek {d\ but the rever- 
 sioner becomes entitled to the accruing rent from the rent-day, ante- 
 cedent to the decease of the tenant for life, whose representative was 
 entitled only to the arrearages due at some rent-day before the death 
 of the testator or intestate : for the law does not apportion rent in 
 point of time, neither does equity [e). 
 
 If, therefore, a tenant for life made a lease for years, and died the 
 day before the rent was due, (which is not payable till the last mo- 
 ment of the day on which it is expressly reserved in the lease,) the 
 rent was lost both to the executor and the reversioner, and the law 
 being so, equity would not relieve (y). 
 
 The strict adherence to this rule of law was productive therefore 
 of a very manifest and grievous injustice. This however has been in 
 a great degree remedied by the statute 1 1 G. 2. r. 19. j. 15. which 
 after reciting, that Whereas where any lessor or landlord, having 
 only an estate for life, in the lands, tenements or hereditaments, de- 
 mised, happens to die before, or on the day, on which any rent is 
 reserved or made payable, such rent or any part thereof, is not by 
 law recoverable by the executors or administrators of such lessor or 
 landlord ; nor is the person in reversion intitled thereto, any other 
 than for the use and occupation of such lands, tenements, or here- 
 ditaments, from the death of the tenant for life, of which advantage 
 
 (rt) I Vtnt. i6l. Coin. Dij;. tit. Rent. (B. 5.) (/;) Went. Off". Ex. 53. 
 
 («) I S.ill<. 578. I S^iiind. af?;. (./) Co. Lit. p. 147. b. [e) 1 S.tlk. 65. Cio. liliz. Jj6. 
 1 I'. VVms-.v^Z. X r. Wms. 176. (/) Ibid. J02.
 
 Sect. I.] Rent; apporlioimtent iif'. 18S 
 
 hath often been taken by the under-tenants, who thereby avoid paying 
 any thing for the same : enacts^ that Where any tenant for life shall 
 happen to die before or on the day on which any rent was reserved 
 or inade payable upon any demise or lease of any lands, tenements, 
 or hereditaments which determined on the death of such tenant for 
 life, the executors or administrators of such tenant for life shall and 
 may, in an action on the case, recover of and from such under- 
 tenant or under-tenants of such lands, i^c. if such tenant for life 
 die on the day on which the same was made payable, the whole, or 
 if before such day, then a proportion of such rent according to the 
 time such tenant for life lived, of the last year or quarter of a year, 
 or other time in which the said rent v/as growing due as afore- 
 said, making all just allowances or a proportionable part thereof 
 respectively. 
 
 In a leading case on the above statute, (in which Lord Hantwicke 
 inclined to extend the remedy to the representatives of a tenant in 
 tail whose lease determined with his life,) the facts were these: Ten- 
 ant in tail, remainder to the defendant in fee, leased for years, and 
 died without issue a week before the day of payment of the half 
 year's rent. The lessee at the day paid all the half year's rent to the 
 defendant. The executor of the tenant in tail brought his bill for ap- 
 portionment of the rent. By the L, C, Hardwicke, this point has 
 never been determined •, but this is so strong a case that I shall make 
 it a precedent. There are in it two grounds for relief in equity : 
 the first arises on the statute of the 1 1 G. 2. the second arises on the 
 tenant's having submitted to pay the rent to the defendant. The re- 
 lief arising upon this statute, is either from the strict legal construc- 
 tion, or equity formed upon the reason of it. And here it is proper 
 to consider, what the mischief was before the act, and what remedy 
 is provided at common law. If tenant for life, or any who had a 
 determinable estate, died but a day before the rent reserved on a lease 
 of his became due, the rent was lost : for no one was entitled to re- 
 cover it. His representatives could not, because they could only 
 bring an action for the use and occupation ; and that would not lie 
 where there was a lease, but debt or covenant : nor could the re- 
 mainder-man, because it did not accrue in his time. Now this act 
 appoints the apportioning the rent, and gives the remedy. But there 
 are two descriptions of persons to whose executors the remedy is 
 given : in the preamble, it is one having only an estate for life ; in 
 the enacting part it is, tenant for life. Now tenant in tail comes ex- 
 pressly within the mischief. I do not know how the judges at com- 
 mon law construe it, but I should be inclined in this court to extend 
 it to them. I should make no doubt, were this the case of tenant in 
 tail after possibility of issue extinct 5 for he is considered in many 
 respects as tenant for life only : he cannot suffer a recovery i he may
 
 184 Rent; apportionment oj'. [Chap. Vlll. 
 
 be enjoined from committing waste, such as hurts the inheritance, 
 as felling timber ; though not for committing comnnon waste, being 
 considered as to that as tenant in tail. Were it the case of tenant 
 for years determinable on lives, he certainly must be included within 
 the Act, though it says only tenant for life ; it would be playing 
 with the words to say otherwise. These cases shew the necessity of 
 construing this Act beyond the words. Tenant in tail has certainly 
 a larger estate than a mere tenant for life ; for he has the inheritance 
 in him, and may, when he pleases, turn it into a fee ; but if he does 
 not, at the instant of his death he has but an interest for life. Such 
 too is the case of a wife tenant in tail ex provisione mariti. Upon this 
 point I give no absolute opinion. As to the equity arising from the 
 statute, I know no better rule than this, equitas sequkur legem. Where 
 equity finds a rule of law agreeable to conscience, it pursues the 
 sense of it to analogous cases. If it does so as to the maxims of the 
 common law, why not as to the reasons of Acts of Parliament ? nay, 
 it has actually done so, on the statute of forcible entry ; upon which 
 this court grounds bills, not only to remove the force, but to quiet 
 the possession. That Act requires a legal estate in possession ; this 
 court extends the reason to equitable in interest. But I ground my 
 opinion in this case upon the tenant's having submitted to pay the 
 rent. He has held himself bound in conscience to pay it for the use 
 and occupation of the land the last half year. He paid it to the de- 
 fendant, wliich he was not bound to do in law : and in such case, 
 the person he pays it to shall be accountable, and considered as re- 
 ceiving it for those who are in equity entitled to it. The division 
 must be that prescribed by the statute ; and then the plaintiff is en- 
 titled to such a proportion of the rent as accrued during the testator's 
 life-time. And accordingly it was decreed (a). 
 
 So, rent paid to the receivers by tenants holding under demises de- 
 terminable upon the decease of tenant in tail, who died without 
 issue, was afterwards apportioned between the representative and the 
 remainder-man. But in this case the Lord Chancellor Thurlow ob- 
 served that the case of Paget and Gee (above cited from Burn and 
 Ambler) seemed rrither to be a decision what the statute ought to have 
 done, than what it had done : but that the question here seemed to 
 turn on another ground, that the tenant holding from year to year, 
 or from period to period, from a guardian without lease or covenant, 
 cannot be allowed to raise an implication in his own favour that he 
 should hold without paying any rent to any body (b). 
 
 Thus, by the statute 1 1 G. 2. rent is apportionable where it has 
 accrued on a lease determinable on the life of the tenant for life. 
 Still however tin; rigiil rule of law obtains as before the statute, 
 
 (,;) 1 Ijuiii'.. Ju:i. ut. Djiticss. Aiiibl. ipy.i. I.. \J') Z Br. R. Oj<j.
 
 Sect. I. j Rent; apporlionment of, 185 
 
 where the estate does not so terminate, but continues notwithstand- 
 ing the death of tenant for life, as where it is under a power, or by 
 licence of the lord (if a copyhold,) or not pursuant to the enabling 
 statute 32 H. 8. in case of a tenant in tail ; so that in either of these 
 cases if the party die at any time before the accruing rent has become 
 payable, his representatives, and his creditors, lose every benefit 
 which they would have derived from his estate ; and the rent goes to 
 the reversioner. Such being the case, we would recommend the 
 parties concerned to attend to the suggestion of Lord Chancellor 
 Coivpery who observed that the gift in law of the rent, which the 
 lessee of tenant for life obtained previous to the statute, by the death 
 of the tenant for life in the middle of a half year, might be guarded 
 against by reserving the rent weekly (a). 
 
 Quit-rent will not be apportioned as between tenant for life and 
 remainder-man [b). 
 
 If lessee for years of land, rendering rent, accepts a new lease 
 from the lessor, of part of the land, which is a surrender of this 
 part, the rent shall be apportioned ; for this comes by the act of the 
 parties {c . 
 
 • If a man leases three acres for life or years rendering rent and after 
 grants the reversion of one acre, the rent shall be apportioned (d), 
 
 A lease was made of land and a flock of sheep, rendering rent. 
 All the sheep died. Several justices and serjeants were of opinion 
 that the rent was apportionable and many others that it was not ; but 
 all thought that it was equitable and reasonable to apportion it : and 
 afterwards the case was argued in the reading of Moore the Lent fol- 
 lowing, and it seemed to him and to four justices, that the rent 
 should be apportioned, inasmuch as no default was in the lessee [e). 
 
 If a man being seised in fee of Blackacrcy and possessed for twenty 
 years of Whiteacre^ leases both for ten years, rendering rent, and 
 dies, by which the reversion of one acre comes to his heir, and the 
 other acre to his executor, the rent, it seems, shall be apportioned, 
 because it happens by act of law {f). 
 
 When a man leases lands of which he is seised in fee, and lands 
 of which he is seised for life at one entire rent, the rent may be ap- 
 portioned after his death for the lands of which he was so seised ia 
 fee. 
 
 A lessee who grants or assigns part of his estate is, notwiihstand-- 
 ing, liable on his covenant to pay the entire rent, for he cannot ap- 
 portion it ; the action as between the lessor and lessee being personal 
 and upon a mere privity of contract, and on that account transitory, 
 as any other personal contract is {g). 
 
 (.1) 1 P. Wms. 392. (b) 10 Ves. 66. {c) Viu, Abr. tit. Apportionment. (B. 5. 12.) 
 {d) Ibid. 7. {e) Ibid. (C. 10.) (/) Ibid. (D. 3.) (-; Cro. Eliz. 633, 637. 
 
 Uuus. 186. a Eati'i R, 575.
 
 186 Rent; apportionment of. [Clia}3. VIII. 
 
 But covenant lies against the assignee of the lessee of an estate for 
 a part of the rent ; as in such cases it is properly a real contract in 
 respect of the land, and is local in its nature, and not transitory •, 
 and in case of eviction, the rent may be apportioned as in debt or 
 replevin {a). 
 
 Where a maa seised in fee of a manor holden in moieties by socage, 
 and knight's service, (since abolished) and of a parsonage appro- 
 priate, leased them for an entire rent, and on his death, devised the 
 manor for life, remainder in tail j it was held that the remainder- 
 man, on a surrender to him of the estate for life, might distrain on 
 the lessee for an apportionment of the rent ; and that a bar to his 
 avowry must shew the value of all the premises, and answer the rate 
 of the apportionment. So, on an avowry for an estate rent, if the 
 plaintiff plead eviction of part of the land by elder title, he must 
 shew how much in value was evicted and how the rent ought to be 
 apportioned ib). 
 
 But a lessee, who is evicted in consequence of a statute acknow- 
 ledged by a former owner of the estate, cannot be sued by his lessor 
 for an apportionment of the rent [c). 
 
 So, if I lease lands, reserving 20/. rent yearly, and at the end of 
 three quarters be evicted, the lessor shall have no rent; for rent 
 shall never be apportioned in respect of time, for being one contract 
 and one debt it cannot be divided, and annua nee dehitum judex non 
 separat [d). Where there are two parceners, and one will take ad- 
 vantage of a forfeiture, and the other «ot, there must be an appor- 
 tionment (e). 
 
 For by entry into any part of the premises demised, the rent is 
 suspended. But if the lessor enter by virtue of a power reserved, or 
 even as a mere trespasser, if the lessee be not evicted, it will be no 
 suspension of the rent [f). 
 
 Rent luhen due. — By the old law, it was demandable and payable 
 before the time of sun-set of the day whereon it was reserved ; for 
 anciently the day was accounted to begin only from sun-rising, and to 
 end immediately upon sun-set (^). 
 
 But Lord Hale held, that although the time of sun-set was the time 
 appointed by the law to demand rent in order to take advantage of a 
 condition of re-entry, and to tender it in order to save a forfeiture, 
 yet the rent is not due until midnight : for if a man seised in fee, 
 makes a lease for years, rendering rent at the feast of St. 'John ttoe 
 Baptisty upon condition of re-entry for non-payment ; now the lessor, 
 if he will take advantage of the condition, must demand it at sun- 
 set i yet if he dies after sun set, and before midnight, his heir shall 
 
 (o) Cro. Eli/.. 633, 637. Doug. 186. 7. East. R. 581. {b) Cro. Eliz. 771. Cro. Jac. 160. 
 
 (t) Cro. Klir. i^S- (>*) i Salk. 6.?. (e) Vin. Abr. tit. ApportioDincnt. (A. 38.) 
 
 X Salk. 186. (/) Bull. N. r. 165. 177. Cowp. 2.13. (^) Co. Lit. 302. 2 Bl. Com. 43.
 
 Sect. II.] Of Taxes. 187 
 
 have this rent and not his executors, which proves that the rent is not 
 due until the last minute of the natural day {a). 
 
 A difference, it seems, subsists between the case of a lease made 
 by tenant in fee, or under a power, and that of one made by a bare 
 tenant for life : in the latter case, if the lessor lives to the beginning 
 of the rent-day, at which time a voluntary payment of rent may be 
 made, that is sufficient to entitle the executor to the rent, rather than 
 it should be lost ; but in the former case, by the death of the lessor 
 before the last instant, the rent will go along with the land to him in 
 the reversion or remainder, because being payable on those days 
 during the term, the lessee has till the last instant to pay his rent, and 
 consequently the lessor dying before it was completely due, his repre- 
 sentatives can make no title to it (b). 
 
 As to the time for the payment of rent ; where a time certain is 
 appointed for that purpose, neither agent nor principal is bound to 
 attend at any other time ; and if the thing be to be done on a day cer- 
 tain, but no hour of the day is set down wherein the same shall be 
 done ; in this case, they must attend such a distance of time before 
 sun-set, that the money may be counted, and the demand should be 
 made on the most notorious part of the premises {c). 
 
 [See also " Condition to re-enter on non-payment of rent." Post 
 Chap. X. iiect. //.] 
 
 Section II. Of Taxes. 
 
 It is a general principle that the occupier of the premises is liable 
 to pay all parliamentary taxes and parochial rates, as respects the 
 rights of the public. 
 
 Thus the land-tax is not the landlord's tax with respect to the 
 public, though it is as between landlord and tenant. In fact, the 
 land itself, in the hands of the occupier, is the debtor to the public {d) : 
 the land-tax, therefore, is prima facie the tenant's tax, because all the 
 remedies are against him (f). 
 
 The land-tax differs from the poor's-tax. The landholder who re- 
 ceives the rent is to pay the land-tax ; but the poor's-tax is payable by 
 the occupiers. The occupier ought to be rated regularly by name : 
 therefore when some particular person cannot be fixed upon who may 
 be properly rated as occupier, it follows as a necessary consequence, 
 that no rate can at all be made upon the premises {f). 
 
 The land-tax acts, from the 4th of W. ^ M. c. i. s. 13. and the 
 28th G. 2.C. 2. s. 17. £if 35. to the present time, direct the tenant 
 to pay the land-tax in the first instance, and to deduct out of the rent 
 so much of the rate as in respect of the said rent the landlord should 
 
 («) i Saund. 287. (^) Ibid. n. 17. (c) 6 Bac. Abr. 31. (i) Dougl. aa6. [165.] 
 («) % Const's BoU's r. L. zy^. pi. aSl. {/) Caldecott 379. i Bur. 1063.
 
 188 Of Taxes and Farti/ Walls. [Chap. Vlll. 
 
 and ought to pay and bear : and the landlords both mediate and im- 
 mediate, according to their respective interests, are required to allow 
 such deductions. 
 
 Under a covenant, therefore, in a building lease, by the tenant, to 
 pay all the taxes, except the land-tax, the landlord is to pay only the 
 old land-tax, and not the additional land-tax occasioned by the im- 
 provement of the estate ; for the legislature did not mean that the 
 whole of the land-tax in respect of all the rent should be borne by the 
 original landlord, but each was to make that allowance in proportion 
 to the rent that came to him [a). 
 
 Upon the same principle A. having granted a building lease to B, 
 at the yearly rent of 7/. which estate B. improved and afterwards 
 underlet at 54/. per annum^ A. was held liable only to pay the land- 
 tax in proportion to the old rent {h). 
 
 So, on a lease in which rent was reserved, to be paid " without 
 any deduction or abatement whatsoever," it was resolved that as the 
 land-tax act enables the tenant to deduct that tax out of his rent, he 
 has in all cases a right to slop it, unless there is an express agreement 
 to the contrary. 
 
 The owner of a quit-rent shall pay taxes only in proportion to what 
 the land pays : but if the matter has been examined by the commis- 
 sioners of the land-tax, the Court of Chancery will not re-examine 
 
 A house within the limits of an hospital, appropriated to an officer 
 of the hospital for the time being, is not assessable to the land-tax {d). 
 
 But a bill in equity will not lie for a tenant to be relieved out of the 
 arrears of rent, for taxes which he has actually paid on account of rent 
 reserved to a charity, which appears to be exempted from taxes [e). 
 
 The act of the 7th G. 3. c. 37. exempting the owner of certain lands 
 embanked from the river Thames from all taxes and assessments what- 
 soever, does not exempt the occupiers of houses built on such lands 
 from the payment of the house and window duties imposed by stat. 
 28 G. 3.^. 4o(/). 
 
 Houses built on lands embanked from the Thames^ pursuant to stat. 
 7 G. 3. c, 36. which vests those lands in the hands of the owners "free 
 from taxes," are not liable to the general land-tax imposed by stat. 27 
 G. 3. though such act is conceived in general terms, and was passed 
 subsequently to the act creating the exemption. Nor are such houses 
 liable to the rates imposed by stat. 11 G. 2,. c. 29 [g). 
 
 Of Party Walls. — The statute 14 G. 3. f. 78. is "An Act for the 
 further and better regulation of buildings and party-walls 5 but being 
 very voluminous, we refer the reader to the Act itself. In the con- 
 struction of that statute Eye^ C. J. observed, that it was easy to sec 
 
 (rt) J "I". R. .177. 2 Sir. 1191. (*) 3 i"' K. .',79. (r) t 1'. Wms. 32R. 
 
 {4) I H. Bl. R. 6C. (^; 1 r. Wini. lio. 11. (/ ; b 1'. R. /16S. (iO 4 'f- »•• 2-
 
 .Sect. II.] Of Taxes and Party Walls, 189 
 
 that it was an ill-penned law, and that its meaning was left uncer- 
 tain {a). 
 
 The lessor of a house at a rack-rent, (there being no other person 
 entitled to any kind of rent) is liable to contribute to the expenses of 
 a party-wall under the statute, though the lessee has improved the 
 house demised (^). 
 
 So, if a lessee of a house at a rack-rent underlet it at an advanced 
 rent ; he is liable to contribute to the expenses of a party-wall built 
 under the statute ; nor is the operation of the Act at all varied by 
 any covenants to repair, entered into between the landlord and his te- 
 nant. In this case, Eyre^ C. J. said, I think that it was intended by the 
 legislature that the tenant should pay a moiety of the expense to the 
 person building the wall, and reimburse himself by deducting the 
 amount out of the rent of his immediate landlord, leaving it to him to 
 make his claim on such other persons as he may think liable : that ap- 
 pears to me to be the best construction for putting the business in a 
 practicable shape. I should incline to that opinion, even if it were made 
 out that the covenant on the part of the tenant [among the covenants 
 on the part of the lessee was one to make " all needful and necessary 
 reparations and amendments whatsoever ;"j included this case ; for 
 though the conduct of the tenant might be a breach of covenant, it would 
 be fitter that the damages should be settled in an action of covenant, 
 than to break in on the rules established by the statute. I know of 
 no way of executing this law, if we enter into all the derivative claims 
 of different landlords. If the tenant pays the money, let him reimburse 
 himself, and leave the other parties to dispute among themselves. 
 And Btiller, J. (who entirely agreed with the C. J.) said, There are 
 three parties in this business ; the man who built the wall, the tenant, 
 and the tenant's immediate landlord. The owner of the adjoining 
 house pursued the directions of 14 G. 3. c. 78. which gave him a 
 right to call on the plaintiff (in replevin) for a moiety of the expense ; 
 that being settled, how does the case stand between the tenant and 
 his landlord ? I agree that we must consider whether the landlord 
 be the owner of an improved rent ; but in this case he has an im- 
 proved rent, since he receives more than the person of whom he took 
 the premises : and if the landlord has the improved rent, he certainly 
 is liable, though there be only one year of the term to come. As to 
 the question, whether the expense can be apportioned, that does not 
 arise here, but if any thing could be found to warrant an opinion 
 thrown out by Lord Mansfield in ^tone v. Greeniuell (cited in 3 T. i?. 
 461.) that the parties might be liable to a rateable proportion in some 
 cases, it would tend much to the advancement of justice. The 
 building a party-wall is certainly a great improvement to the premises, 
 
 («) I Bos. it Pul. 305. (i) 8 T. R. ai4. 3 T. R. 461,
 
 190 Of Taxes and Party Walts. [Chap. VI 11. 
 
 and every person interested in the fee and receiving a benefit from it, 
 ought to contribute (a). 
 
 It is indeed clear that the owner of the improved rent, not of the 
 ground-rent, is liable to pay the expenses of a party-wall built under 
 the statute {b). 
 
 But where the tenant of a house covenanted in his lease to pay a 
 reasonable share and proportion of supporting, repairing, and amend- 
 ing all party-walls, ^c. and to pay all taxes, duties, assessments, and 
 impositions parliamentary and parochial, " it being the intention of 
 the parties that the landlord should receive the clear yearly rent of 60/. 
 in net money without any deduction whatever ;" during the lease the 
 proprietor of the adjoining house built a party-wall between that 
 house and the house demised, under stat. 14 G. 3. c. 78. held that it 
 was the tenant, not the landlord, who was bound to pay the moiety of 
 the expense of the party-wall : for, said Lord Kenyan^ the covenants in 
 the lease render it unnecessary to consider which of the parties would 
 have been liable under the Act of Parliament : modus et conventio -y/n- 
 cunt legem. We collect the intention from the whole of the instru- 
 ment. If this had rested itself merely upon a covenant to pay taxes, 
 ^c. I should not have thought a tenant liable, but here is a cove- 
 nant that the landlord should have the rent clear and net, A cove- 
 nant is always taken most strongly against the covenantor. I cannot 
 bring my mind to doubt from the whole but that the tenant should 
 pay the whole. Groscy J. This is as if the landlord had reserved a 
 clear rent- charge to himself. Lawrence^ J. The intention of the par- 
 ties was that the landlord should have his rent free from any charge. 
 It is not necessary to decide which party is the owner of the improved 
 rent. Le Blanc^ J. I ground myself on the covenant that the tenant 
 should pay a reasonable proportion of the party-wall {c).\ 
 
 A lessee for twenty-one years at a pepper-corn rent for the first 
 half-year and a rack-rent for the rest of the term, who by agreement 
 was to put the premises in repair, and covenanted to pay the land-tax 
 and all other taxes, rates, assessments, and impositions, having as- 
 signed his term for a small sum in gross, was held not to be liable to 
 pay the expense of a party-wall, either by the provisions of the stat. 
 14 G. 3. c. 78. J-. 41. or the covenant ; for where the parties contract 
 for a lease at rack-rent, the landlord is the person who ought to bear 
 the expense of the party-wall {d). So, where the parties stand, as in 
 the principal case, in the relation of landlord and tenant, the former 
 is liable under the Act of Parliament to pay the expense ; for the le- 
 gislature intended to throw the burthen on the lessees of building 
 leases, by whom the value of the estates is considerably improved, 
 and who afterwards made under-leases, reserving improved rents (e). 
 
 («) I Boi. & l\.l. 303. (t) 5 T. R. 130. (0 P. F. R. 6oa. 
 
 (J) 3 T. R. 4.?8. (0 ll)i.l.
 
 Sect. III.] Of the Poors-Rates. 191 
 
 If however a large sum were paid for the purchase of a lease, the 
 original lessee, though no improved rent were reserved to him, would, 
 it seems, be liable to pay this expense within the act of Parliament (a). 
 
 The three months' notice required by j. 38. of the 14 G. 3. c. 78. 
 is necessary only where the person who at the time when it is neces- 
 sary to build, i^c. is liable to pay, cannot agree with the owner of the 
 adjoining house (b). 
 
 The penalty of 13/. inflicted by s. 67. of the statute, for not having 
 the new building surveyed, is recoverable against the master-builder, 
 where the regulations of the Act are not complied with, and not 
 against the proprietor of the premises (c). 
 
 When a party-wall is built half upon one party's land and half 
 upon the other party's, they are not tenants in common of such wall, 
 although the same be erected at their joint expense {d). 
 
 Under a covenant to repair generally lessee is not bound to do the 
 repairs to party-walls required by the building act {e). 
 
 The building act has not destroyed the right to lateral windows, 
 which existed before that act [f). 
 
 It is no defence to an action for darkening ancient lights, that they 
 are not conformable to the provisions of the building act {g). 
 
 If a building is erected contrary to the provisions of the building 
 act, and no conviction be had upon s. 60. within three months, it is 
 not rendered legal thereby, but may be afterwards proceeded against 
 under that act (h). - 
 
 A tenant who rebuilds a house in Zc«fi?o«, without a lease or agree- 
 ment for a lease, and makes therein use of the party-wall of the ad- 
 joining house, cannot be sued for half the cost tts owner of the im- 
 proved rent ; though he afterwards obtains, in consideration of the 
 rebuilding, a beneficial lease at a low ground-rent, habendum from a 
 day before the building {i). 
 
 Where the tenant of a house agreed with a builder, the owner of 
 the adjpinin*g"house, that he should build a party-wall and he would 
 pay him what was right acd fair, he is liable for his share of the ex- 
 pense, without reference tQ the*fHlllling act {k). 
 
 Section III. Of the Poors-Rates. 
 
 Lht foundation of the Poor Laws was laid by the stat. 43 Eliz. c. 2. 
 which was passed for the best of purposes, namely, to compel the 
 idle to be industrious, and to relieve the wants of the unfortunate, 
 and afford them those comforts which they are disabled to procure 
 
 {a) 3 T. R. 4j8. (J>) 5 T. R. 130. {c) 3 Esp. R. 223. {d) 5 Taunt, ao. 
 
 (0 Ibid. 90. </) Ibid. 465. is) Ibid. {h) 5 Taunt. 465. 
 
 (;) 6 Taunt. 249. (^) ^ Taunt. 158. 3 Mars. 435.
 
 192 Of the Foors-Rales: [Chap. Vif . 
 
 from infirmity or age : from neglect and abuse, however, its provisions, 
 and those of many other Acts passed for the same wise and benevo- 
 lent purposes, are in a great measure frustrated. 
 
 By sect, i of the stat. of Eliz. it is enacted, " that the church- 
 wardens of every parish, and four, three, or two substantial house- 
 holders there, as shall be thought meet, having respect to the propor- 
 tion and greatness of the same parish and parishes, to be nominated 
 yearly in Easter week, or within one month after Easter^ under the 
 hand and seal of two or more Justices of the Peace in the same 
 county, whereof one to be of the Quormriy dwelling in or near the 
 same parish or division where the same parish doth lie, shall be called 
 overseers of the poor of the same parish : And they, or the greater 
 part of them, shall take order from time to time, by and with the con- 
 sent of two or more such Justices of the Peace as is aforesaid, for 
 setting to work the children of all such whose parents shall not, by 
 the said churchwardens and overseers, or the greater part of them, be 
 thought able to keep and maintain them, and use no ordinary and 
 daily trade of life to get their living by : And also to raise weekly or 
 otherwise {^'^ taxation of every ifihabiianty parson, vicar, and other, and 
 of every occupier of lands, houses, tithes impropriate, propriations of 
 tithes, coal-mines, or saleable under-woods, in the said parish, in such 
 competent sum and sums of money as they shall think fit) a conve- 
 nient stock of flax, hemp, wool, thread, iron, and other necessary 
 ware and stufi^, to set the poor on work : And also competent sums 
 of money for and towards the necessary relief of the lame, impotent, 
 old, blind, and such other among them, being poor, and not able to 
 work, and also for the putting out such children to be apprentices, to 
 be gathered out of the same parish, according to the ability of the 
 same parish, and to do and execute all other things as well for the 
 disposing of the said stock, as otherwise concerning the premises, as 
 to them shall seem convenient." 
 
 Sect. 4. " It shall be lawful, as well for the present as subsequent 
 churchwardens and overseers, or any of them, by warrant from any 
 two such Justices of the Peace as is aforesaid, to levy as well the said 
 sums of money and all arrearages, of every one that shall refuse to 
 contribute as they shall be assessed, by distress and sale of the offen- 
 der's goods, as the sums of money or stock which shall be behind 
 upon any account to be made as aforesaid, rendering to the parties 
 the overplus ; and in defect of such distress, it shall be lawful for any 
 two such Justices of the Peace to commit him or them to the com- 
 mon gaol of the county, there to remain without bail or mainprise, 
 until payment of the said sum, arrearages, and stock : And the said 
 Justices of the Peace, or any of them, to send to the house of cor- 
 rection or common gaol such as shall not employ themselves to work, 
 being appointed thereunto as aforesaid \ and also any such two Jus-
 
 Sect. III.] Of the Poors-Rates. 19s 
 
 tices of Peace to commit to the said prison every one of the said 
 churchwardens and overseers who shall refuse to account, there to 
 remain without bail or mainprise, until he have made a true account, 
 and satisfied and paid so much as upon the said account shall be re- 
 maining in his hands," 
 
 Sect. 19. enacts, ** That if any action of trespass or other suit shall 
 happen to be attempted and brought against any person or persons, for 
 taking of any distress, making of any sale, or any other thing done, 
 by authority of this present Act, the defendant or defendants, in any 
 siich action or suit, shall and may either plead not guilty, or other- 
 wise make avowry, cognisance, or justification for the taking of the 
 said distresses, making of sale, or other thing done by virtue of this 
 Act, alleging in such avowry, ^c. that the said distress, sale, tres- 
 pass, or other thing, whereof the plaintiff or plaintiffs complained, 
 was done by authority of this Act, and according to the tenor, pur- 
 port, and effect of this Act, without any expressing or rehearsal of 
 any other matter or circumstance contained in this present Act ; to 
 which avowry, cognisance, or justification, the plaintiff shall be ad- 
 mitted to reply, That the defendant did take the said distress, made 
 the said sale, or did any other act or trespass supposed in his declara- 
 tion, of his own wrong, without any such cause alleged by the said 
 defendant : whereupon the issue in every such action shall be joined, 
 to be tried by verdict of twelve men, and not otherwise, as is accus- 
 tomed in other personal actions : And upon the trial of that issue the 
 whole matter to be given on both parties in evidence, according to the 
 very truth of the same, and after such issue tried for the defendant, 
 or nonsuit of the plaintiff after appearance, the same defendant to re- 
 cover treble damages, by reason of his wrongful vexation in that be- 
 half, with his costs also in that part sustained, and that to be assessed 
 by the same jury, or writ to enquire of the damages, as the same shall 
 require." 
 
 By Stat. 17 G. i.e. 37. waste lands improved and drained shall be 
 rated to the relief of the poor within such parish and place which lies 
 nearest to such lands : and the Justices in general quarter sessions may 
 hear and determine disputes concerning the same, and cause the land 
 to be fairly assessed in such parish as they shall think proper, j-. i, 2. — 
 But the allotments of the Sessions shall not affect the boundaries of 
 parishes, other than for the purposes of rating such laws [a). 
 
 On inclosure of waste in the parish of ^. on which the land -holders 
 of the parish of B, have right of common appurtenant, the allotments 
 given in lieu of that right shall be assessed to the poor of the parish 
 of A. The common itself quasi common was certainly not rateable, 
 
 («) I Const's Bott. 8*. pi. 107. 
 O
 
 194 Of the Poors-Rates. [Chap. VIII. 
 
 not being the subject of occupation, but if at all it must have been 
 assessed as an accessary to the principal at B. (a). 
 
 So, where the inhabitants of one parish had common appendant in 
 certain waste grounds which lay in another parish ; and the question 
 was, whether the commoner should pay taxes for this, and should be 
 assessed in the parish where the waste lay, or in that wherein his farm 
 lay ? it was held, that he ought to be assessed where his farm lay, for 
 that the common is incident, and could pass by grant of the farm, k5fc. 
 So that it should be considered as part of the farm, and the farm to 
 be taxed the higher [b). 
 
 But a farmer, it seems, is not rateable for the stock on his farm 
 necessary for its manurance, though for superabundant riches and 
 stock he ought to be rated U). 
 
 The poors-rate is not a tax on the land, but a personal charge in re- 
 spect of the land. — In general, the farmer or occupier, and not the 
 landlord, is liable- to this tax ; for the poors-rate is'a charge upon the 
 occupier in regard to his possession, and not on the lessor in regard to 
 the rent received {^d). 
 
 The occupier of land is rateable to the poor, and it is immaterial 
 by vi'hat tenure he holds it, or whether he has any title, or not {e) : 
 for if a disseisor obtain possession of land, he is rateable as the occu- 
 pier of it. If a man does not live within a parish, he is to be assessed 
 according to his land j but if he live within the parish, he is to be 
 rated as dwelling there [f). 
 
 The Act 20 G. 3. c, 1']. s. 19. for regulating the right of voting 
 does not, in the form of assessment that it gives, prevent parishes 
 from rating landlords or other persons by name ; or they may still, de- 
 clare their intention to rate the landlord (g). 
 
 But payment of a poors-rate assessed on the occupier of a house 
 is not in itself evidence of occupation by the party so paying (h). 
 
 Every inhabitant ought to be rated according to the present value of 
 his estate, wheilierit continue-of the same value as when he purchased 
 it, or be rendered more valuable by the improvements which he has 
 made on it. If a person choose to keep his property in money, and 
 the fact of his possessing it be clearly proved, he is rateable for that : 
 but if lie prefer using it in the melioration of an estate or other pro- 
 perty, he is rateable for the same in another shape. Suppose a per- 
 son has a small piece of land in the heart of a town, which is only of 
 small value, and he afterwards build on it, he must be rated to the 
 
 (a) I Const's Eott. 81. pi. 108. a Bl. R. 1245. (^) » '^alk. 169. 
 
 (f) I Conit's Bott. 115. pi. 150, 151. a Ld. Raym. 1281. 4 Burr. 2290. Cowp. 453. 
 
 (d) a Const's Bott. 92. pi. laa. {c) i T. R. 341. 7. ibid. 59J, 608. 
 
 (/) I CoiiJt'i Bott. 93. pi. 125. (g) a Ibid. 268. pi. 280. 
 
 {i) R. V. Bristow, Sitt. m Weitm. after E. T. 1800. T.'j MSS,
 
 Sect. III.] Of the Poors-Rates. 195 
 
 poor according to its improved value with the building upon the land. 
 — In short, in whatever way the owner makes his estate more valua- 
 ble, he is liable to contribute to the relief of the poor in proportion 
 to that improved estate (a). 
 
 So personal property, if visible, and yielding a certain annual per- 
 manent profit, is rateable. 
 
 It may be stated, therefore, as a general proposition, that the imme- 
 diate profits of land (some mines excepted) are a proper subject of 
 assessment, or, to speak more correctly, that the person who is in pos- 
 session of the immediate profits of land may be taxed to the relief of 
 the poor in respect of those profits {b). 
 
 The court is not precluded, by the Sessions stating in the case " that 
 the party rated is the occupier," from examining into the propriety of 
 that conclusion, if the Sessions also state all the circumstances of the case, 
 and desire to have the opinion of the superior Court upon the whole (c). 
 Where, however, the Sessions found that the master-gunner at Seaford 
 was the " occupier" of the battery-house there, which was the pro- 
 perty of the Crown, and from whence he was removable at pleasure ; 
 it was held, that the fact found of his being " the occupier," pre- 
 cluded any other question, and fixed his liability to be rated (^d). 
 
 Where the aftermath of a meadow was vested in trustees with 
 power to let the same in pastures for cattle, and they let it out to va- 
 rious persons, but not for any certain term, or in any certain propor- 
 tions, at so much a head for horses, ^c. ; it was held that the trus- 
 tees must themselves be taken to be the occupiers of the land, and 
 were consequently rateable for the same (f). 
 
 In the case of St. Luke's Hospital, and of Chelsea Hospital, the offi- 
 cers are rateable as occupiers. The corporation of London are not dt 
 facto the occupiers of St. Bartholomem/s Hospital ; the poor are occu- 
 piers ; but they are not rateable. 
 
 The general rule of law must be followed, which is, " That you 
 must find an occupier to be rated," The poor people cannot be rated 
 at all : the servants cannot be rated as occupiers i nor can the corpo- 
 ration be charged as occupiers (/). 
 
 For property is not rateable to the poor, unless there be some person 
 in the beneficial occupation of it [g). 
 
 Therefore, the trustees of a Quaker's meeting-house, of which no 
 profit is made by pews, t^fc. are not rateable. So, a person employed 
 by the Philanthropic Society to superintend the children at annual 
 wages, under an agreement that she shall have a « dwelling-house free 
 from taxes, Id'c^ with certain other perquisites, and who may be dis- 
 missed at a minute's warning on receiving three months' wages, is not 
 
 (.) 5 T. R. 587. 
 (/) 4 Bur^ 3439- 
 T. R, 730, 
 
 {a) 6 T. R. 155. 7 T. R. 549. (*) a H. Bl. a6o. 
 
 (rf) 3 T. R. 497. W 13 East's R. 155. 
 
 a Burr. 1053. 1063. I Bl. R. %S0. s. e. ( ^) 4 
 
 O 2
 
 196 Of the Poors-Rates., [Chap. VIII. 
 
 rateable as the occupier of the house provided by the Society, she 
 having no distinct apartment in the house but a bed-chamber, and her 
 family not being allowed to live there {a). 
 
 But the occupiers of a charitable foundation in the actual occupa- 
 tion of the alms-house and lands for their own benefit, in the manner 
 prescribed by the rules of the constitution, and liable to be dismissed 
 for any breach of such rules, are rateable in respect of such occupa- 
 tion (b). 
 
 Therefore the master of a free-school, appointed by the minister 
 and inhabitants of the parish under a charitable trust, whereby a house, 
 garden, l^c. were assigned " for the habitation and use of the master 
 and his family freely, without payment of any rent, income, gift, sum 
 of money, or other allowance whatsoever," for teaching ten poor boys 
 of the inhabitants, is rateable for his occupation of the same : for it 
 is not like the case of an exemption by Act of Parliament, by which 
 the legislature had a right to bind every person ; for here the party 
 was appointed by deed, and only those who are parties to a deed are 
 bound by it {c). 
 
 A corporation seised of lands in fee for their own profit are within 
 the meaning of stat. 43 Eliz. c. 2. inhabitants and occupiers of such 
 lands, and in respect thereof liable in their corporate capacity to be 
 rated to the poor (rf). 
 
 But the possessions of the Crown or of the public are not rateable 
 to'the relief of the poor: and as to public buildings, those are such 
 as are applied to public purposes [e). 
 
 A warehouse may be rated to the proprietor or occupier according 
 to the use to which it is applied. If it be left for instance to the ex- 
 cise or custom-house for public purposes, the burthen must be borne 
 by the proprietor : but if it be afterwards converted to a private use, 
 the occupier of it will be liable to the rates (/). 
 
 Therefore, stables rented by the Colonel of a regiment, by order 
 of the Crown, for the use of the regiment, are not liable to be 
 rated (g). 
 
 But persons holding houses or lands under the Crown, or under any 
 hospital, if for their own separate benefit, are li.ible to be rated {h). 
 
 The ranger of a royal park, therefore, is rateable, as for inclosed 
 lands in the park yielding certain profits. — But he is not rateable for 
 the herbage and pannage, which yield no profit (/). 
 
 Tolls directed by Act of Parliament to be applied to public pur- 
 poses were held not to be rateable [k). 
 
 But lands purchased by a company, and converted into a dock, ac- 
 
 («)5T. R. 79. Il)id. 587. (i) I East's R. 584. 
 
 (</) Cowp .79. R.;,84. (e) 2 T. R. 375. a IJos & l*ul. 129. 
 
 (j) a r. R. 37J. W 3 f • R- 497- (0 « 1'- R- 
 
 (0 6 T.R. 333. 
 (y)4T. R.8. 
 338. »H. BLR. 465. 
 (i) A T. R. 730.
 
 Sect. III.] Of the Poors-Kates. 197 
 
 cording to Act of Parliament, which declares that the shares of the 
 proprietors shall be considered as personal property, are rateable in 
 proportion to the annual profits [a). 
 
 An exemption in a private statute in 12 Car. 2. of lands given to 
 charitable uses »* from all public taxes, charges and assessments vi'hat- 
 soever, civil or military," extends to the poors-rate (h). 
 
 Where a statute empowered the proprietors of a canal to take rates 
 in respect of vessels navigating the same, and expressly exempted such 
 rates from the payment of taxes, rates, ^c. ; it was holden that the 
 land occupied by the canal was thereby exempted from poors-rate (c). 
 
 The masters in Chancery are not rateable as occupiers of their res- 
 pective apartments in Southampton Buildings under the Paving Act 1 1 
 G. 3. c. 22., for they are for public purposes, and the masters have no 
 individual benefit in them {d). 
 
 If the owner of a house occupy part of it, he is liable to be rated 
 for the whole ; unless there be a distinct occupation of the rest by some 
 other person [e). 
 
 Houses, shops and sheds, which render an annual revenue, are rate- 
 able to the poor [f). 
 
 A house and engine for carding cotton, which are rented as one en- 
 tire subject, and decribed by the general name of *' an engine-house," 
 may be rated. So may the profits of a weighing-machine-house (g). 
 
 A person entitled to toll tin and farm dues (which are certain por- 
 tions of the tin raised by the adventurers in the tin-mines) is liable to 
 be rated in respect thereof (h). 
 
 Lead-mines, it has been held, are not rateable to the poor. But a 
 lessee (under the Crown) of lead-mines, is rateable for the profits ari- 
 sing from lot and cope, which are duties paid him by the adventurer 
 without risk on his part (/). 
 
 Ihe lessee of a coal-mine has even been held to be rateable, though 
 he derived no property from the mine ; the mine being rateable pro- 
 perty. If the property be rateable, and the party rated be in the oc- 
 cupation of it, the Court cannot examine any farther, and inquire 
 whether or not the tenant has made an unprofitable bargain. Suppose 
 a landlord makes so hard a bargain with his tenant, that the latter de- 
 rives no benefit from the farm, must not the tenant be rated to the 
 poor ? The landlord certainly is not liable [k). 
 
 So, a slate-work, (or as it is improperly called a slate mine) is rate- 
 able to the poor (/). 
 
 Linen works are rateable in the hands of the occupier ; though 
 there be risk and expense in the working, and the profits be uncer- 
 tain (;«). 
 
 (<i) I T. R. 219. (^) 3 T. R. 602. (c) I B. & A. 263. (d) 2 Bos. & Pull. 129. 
 
 (O4T. R. 477. (/) I Const's Bott.115.pl. 144. (_^) I T. R. 727. 
 
 (i)5T. R. 480. (OiBl. R. 389. Cowp.45i. (-{) 5 T. R. 596. 
 
 (/) a Ban's R. 164. (»») i East'eR. 534.
 
 198 Of Oie Poors-Rates. [Chap. Vlfl. 
 
 The objects of a charitable foundation in the actual occupation of 
 the ahns-house and lands for their own benefit in the manner pre- 
 scribed by the rules of the constitution, and liable to be discharged 
 for any breach of such rules, are rateable in respect of such occupa- 
 tion [a). 
 
 Where J. having granted to B. a lease for years of way-leaves 
 (for the purpose of carrying coals,) and the liberty of erecting bridges, 
 and levelling hills over certain lands ; B. made the waggon-ways, in- 
 closed them, thereby excluding all other person^ erected bridges, 
 and built two houses on the lane for his servants ; B. was held to be 
 liable to be rated to the poor for " the ground called the waggon- 
 way {b):' 
 
 But a mere easement is not rateable. Therefore, a party who has 
 an exclusive right to use a way-leave, paying so much prr ton for the 
 goods carried over it, is not liable, Qu^re^ "Whether the owner of the 
 land who receives a profit for such way-leave, is not liable to be rated 
 for such an increase of value ? for it is not a grant of the profits ^ 
 the land (c). 
 
 The proprietors of tithes are liable to be rated ; therefore fish being 
 tltheable by custom, such tithe is rateable : for the legislature intended 
 that, when rates are made for the relief of the poor, every person 
 should contribute according to the benefit which he receives within 
 the parish. Here the parties receive a certain benefit arising from the 
 tithe of fish in this parish, and run no risk whatever. To say that 
 only property which is visible should be rated, is carrying the rule of 
 exemption too far ; for oblations and other offerings, which constitute 
 the rectorial or vicarial dues, are rateable (i/). — If a rector makes a ver- 
 bal lease of his tithes for a year, and the lessee let the tithes to the 
 respective land-holders for sixpence per acre more than he is to pay 
 the rector, the lessee is the occupier of the tithes, he having them in 
 such a manner as to make a profit of them [e). 
 
 A sum of money made payable by the owners of lands in lieu of 
 tithes by Act of Parliament, with a clause of distress annexed, is liable 
 to the poors-rate : for it is a mere composition for tithes, which were 
 before subject to the poors-rate; and the superadding a power of dis- 
 tress does not turn it into a rent, but rather proves the contrary ; for 
 if it were a rent, the distress would be incident to it, without any spe- 
 cial provision in the Act {/ ). 
 
 So payment in lieu of tithes settled under a compromise between 
 a parson and a parish, and confirmed by Act of Pariiament, are rate- 
 able {g). 
 
 A parson is rateable for his tithes as the occupier of a tenement; so 
 is a vicar ; and the liability is not removed, alihougu he lets his tithes 
 
 (a) I E;.st'» R. 5S4. [1) 7 T. R. jyH. (.) i T. R. 94. (<^) Ibid- 386. 
 
 (#)8Mod.62. (/j 1 J{l. R.iv,j;.. (^) VM. i<j(>. i Conu's Cott. 164. pi. 184.
 
 Sect. 111.] Of the Poors- Rates, 199 
 
 to the parishioners ; and the tax must be upon the parson and not upon 
 the lessee of his tithes (a). 
 
 Quit-rents, and other casual profits of a manor, are not rateable. — 
 But ground-rents are rateable (b). 
 
 If A. rent a quantity of land together with a mineral spring arising 
 therefrom, at a gross yearly rent, he is rateable to the poor for the 
 whole of such rent, though the annual, value of the mere land is only 
 in proportion of two to eight of the reserved rent. 
 
 Whether or not chambers in an Inn of Court are rateable is unde- 
 termined : the fact of their being extra-parochial does not seem to be 
 a sufficient ground of exemption ; for if it were, the poor of extra- 
 parochial places would be deprived of the benefit of the statute of 
 Elizabeth^ which has been construed to extend to them. — However, 
 most of the old colleges, being extra-parochial, are upon that ground 
 not rateable c). 
 
 The overseers and churchwardens may make a poors-rate, without 
 tlie concurrence of the parishioners : and if a rate be necessary, they 
 may be compelled by mandamus to make it. But such rate is not bind- 
 ing till allowed by two Justices out of sessions; for the sessions can- 
 not order an original rate to be made, and the allowance by the Justices 
 is compellable by mandamus [d). 
 
 How to be made and raised. — A rate being made by the churchwar- 
 dens and overseers, it is proclaimed in the church, when it becomes 
 formal and public. If any one feel aggrieved by the making of the rate 
 (he need not be damnified by the I'ate j) he must appeal to the next 
 sessions ; and if any point of law arise on hearing the appeal, it may 
 be removed into the Court of King's Bench, by certiorari, in order to 
 be determined. 
 
 The Stat. 17 G. 2. c. 3. j-. i. after reciting that, Whereas great in- 
 conveniences do often arise in cities, towns corporate, parishes, town- 
 ships, and places, by reason of the unlimited power of the church- 
 wardens and overseers of the poor, who frequently on frivolous 
 pretences, and for private ends, make unjust and illegal rates in a se- 
 cret and clandestine manner, contrary to the true intent and meaning 
 of a statute made in the forty and third year of the reign of Queen 
 Elizabeth, intituled, " An Act for the Relief of the Poor j" enacts, 
 That the churchwardens and overseers, or other persons authorized to 
 take care of the poor in every parish, toWnship, or place, shall give or 
 cause to be given public notice in the church, of every rate for the 
 relief of the poor, allowed by the Justices of the peace, the next 
 Sunday after the same shall have been so allowed; and that no rate 
 
 (a) I Const's Bott. 116. p. 15a. 117. pi. 153. 118. pi. 154. & in n. 
 (B) I Bl. R. 312. I East's R. 585. i Const's Bott. 115. pi. 147. Cowp. 619. 
 ■(«) aCora. R,534. (</) i Ld. Raym. loi j. i Ibid. 798. i Barnard, 137. i Bl. R 637.
 
 200 Of the Poors-Rates. [Chap. VIII. 
 
 shall be esteemed or reputed valid or sufficient, so as to collect and 
 raise the same, unless such notice shall have been given. 
 
 If a poors-rate be not published in the church on the Sunday next 
 after it is allowed, it is a nullity ; and payment under it cannot be en- 
 forced, though there be no appeal to the sessions. Supposing the pa- 
 rish ofhcers were to give notice of the rate at some other public place 
 in the parish, it would not be sufficient, though it may be equally no- 
 torious. The omission is a radical defect in the rate itself, which no- 
 thing can cure {a). 
 
 In an'action of trespass by a person whose goods were distrained 
 for non-payment of the rate, the publication of the rate under the 
 Stat. 17 G. 2, c. 3. must be proved [h). 
 
 *The superior Court cannot enter into the inequality of the rate, un- 
 less it appear to them to be self-evidently, necessarily, and unavoidably 
 unequal : they cannot presume it to be so {c). The Justices at the 
 sessions are the proper judges respecting the equality or inequality of 
 the rate [d]. The distinction between orders of Justices and special 
 verdicts has long been established : in the latter, where it concludes 
 generally, the M'hole case must appear upon record ; but the very re- 
 verse is the rule which obtains in the case of orders of Justices, for 
 the Court will intend every thing to be right which does not appear 
 to be otherwise, and they will not entertain any doubt upon a subject 
 upon which the Justices did not [e). 
 
 By Stat. 17 G. 2. c. 3. the overseers shall permit the inhabitants to 
 inspect every rate at all seasonable times, on payment of \s. and shall 
 on demand give copies thereof to any inhabitants at the rate of 6d. for 
 twenty-four names : on penalty of 20/. for refusal. And true copies 
 of all rates for the relief of the poor shall be entered in a book within 
 fourteen days after any appeal from any such rate is determined, which 
 the overseers shall attest by their names thereto ; which book shall be 
 kept for public perusal, s. 2, 3, 13. 
 
 And overseers neglecting to execute this Act, shall, if no other pe- 
 nalty is provided, forfeit to the poor not exceeding c/. nor less than 
 10s, s. 14. And where there are no churchwardens, overseers may 
 perform all matters relating to the poor. j-. 15. 
 
 Where a statute says, that^a company shall not be liable to any rates 
 which had not usually been assessed, it only means that they shall not 
 have any other kind of rate imposed on them than those which were 
 then levied, but does not fix the proportion of the rate {f). 
 
 Where to he collected. — A person shall be rated for profits where they 
 become due, not vyhcrc they happen to be received (^). 
 
 Where a navigation ran from A. to B. through several intervening 
 
 (/i) 4 T. R, 36y. (i) 8 T. U. 664. (0 4 Eurr. 2494. (</) 6 T. R. 66^, 6. 
 
 (0 a Str. 93 z, 975. (/) 2 T. R. 660. (^) Ibid.
 
 Sect. III.] Of the Poors-Rates, 201 
 
 parishes, and the tolls for the whole navigation were collected in those 
 two parishes, it was holden that they might be assessed in the two pa- 
 rishes for the whole amount, according to the proportion collected in 
 each ia). 
 
 A barge-way and toll-gate In the hamlet of Hamptonwicky purchased 
 by the city of London, by virtue of stat. 17 G. 3. c, i8. (for completing 
 the navigation of the Thames, and empowering the city to levy tolls 
 and duties towards the charges of navigation,) was held to be rateable 
 for such tolls as became due there, notwithstanding the tolls were col- 
 lected in a different parish (J)). 
 
 The grantee of the navigation of the river Ouse, is rateable to the 
 poor of Cardlngton in respect to the tolls arising there, though he him- 
 self resides, and the tolls are collected, elsewhere (<:). 
 
 So, where a Navigation Act empowered the proprietors to take so 
 much per mile per ton for all goods carried along the canal, it was 
 holden, that they were rateable to the poor for the tolls in the different 
 parishes where the tolls became due, that is, where the respective 
 voyages finished, though for their own convenience they were autho- 
 rized to collect the tolls where they pleased, and did in fact collect 
 them in other parishes (^). 
 
 So, where by a Navigation Act the proprietor was entitled to a toll 
 of 4/. per ton for goods carried from A. to B. or from B. to A. and to 
 a proportionable sum for any less distance, and was also enabled to 
 appoint any place of collection ; it was holden that the tolls for goods 
 carried the whole voyage from A. to B. were rateable in B., though in 
 fact they were collected in a parish between A. and B., because the tolls 
 became due where the voyage is completed {e). 
 
 County Justices cannot rate a parish within their jurisdiction, in 
 aid of another parish, lying within a borough which has an exclusive 
 jurisdiction, though within the same hundred and county {/). 
 
 By stat. 17 G.I. c. 38. /. 12. it is enacted. That where any person 
 or persons shall come into or occupy any house, land, tenement, or 
 hereditament, or other premises, out of, or from which any other per- 
 son assessed shall be removed, or which at the time of making such 
 rate was emptied or unoccupied, that then every person so removing 
 from, and every person so coming into, 0/ occupying the same, shall 
 be liable to pay such rate in proportion to the time that such person 
 occupied the same, respectively in the same manner, and under the 
 like penalty of distress, as if such person so removing had not removed, 
 or such a person so coming in or occupying had been originally rated 
 and assessed in such rate j which said proportions, in case of dispute, 
 fihall be ascertained by two Justices of the peace. 
 
 By stat. 43 Eliz. c. 2. s, 4. [ante) the present as well as subsec][uent 
 
 . (^2) 2 T. R. 660. (A) 4 T. R. ai. {e) Cowp.581. 
 
 ■ Id) 8 T. R. 34c. (^0 4 T. R. 543. (/) Ibid. 778.
 
 202 Of the Poors-Rates, [Cliap. V I i I. 
 
 overseers ar-e empowered to levy the poors-rate and arrears thereof by 
 distress, as therein directed. And the warrant may be granted as well 
 by city Magistrates as by country Justices ; (j-. 8.) although the dis- 
 tress has relation to taxes to which they are liable. i6 G. 2. c. 1 8. /. i. 
 
 Distress for Poors-Rate. — By stat. 17 G. 2. c. 38. /. 7. " for the 
 more effectual levying money assessed for the relief of the poor," it 
 is enacted, That the goods of any person assessed and refusing to pay, 
 may be levied by warrant of distress, not only in the place for which 
 such assessment was made, but in any other place within the same 
 county or precinct ; and if sufficient distress cannot be found within 
 the said county or precinct on oath made thereof before some Justice 
 of any other county or precinct, (which oath shall be certified under 
 the hand of such Justice on the said warrant,) such goods may be 
 levied in such other county or precinct by virtue of such warrant and 
 certificate ; and if any person shall find him or herself aggrieved by 
 such distress as aforesaid, it shall and may be lawful for such person 
 to appeal to the next General or Quarter Sessions of the Peace for the 
 county or precinct where such assessment was made ; and the Justices 
 there are hereby required to hear and fully determine the same. And 
 in case any person refuse to pay the present overseers, the succeeding 
 overseers may levy the arrears and reimburse their predecessors. [See 
 also 41 G. 3. c. 23. J". 9.] 
 
 By Stat. 27 G. 2. c. 20. the Justices granting such warrant of dis- 
 tress shall therein order the goods so to be distrained to be sold with- 
 in a certain time to be limited in such warrant, so as it be not less than 
 four days, nor more than eight days ; unless the sum for which such 
 distress shall be made, together with the reasonable charges of taking 
 and keeping such distress, be sooner paid. And the officer may deduct 
 the charges of taking, keeping, and selling such distress, out of the 
 anoney arising from the sale, and also the sum distrained for. But he 
 shall, if required, shew the warrant to the party distrained upon, and 
 shall permit a copy thereof to be taken, s. 1,2. 
 
 A distress and sale, indeed, given by statute, is in the nature of 
 an execution. 
 
 By stat. 28 G. 3. c. 49. s. 12. Justices acting for adjoining coun- 
 ties and personally resident in one of them, may grant warrants of 
 distress 5 and the acts of any officer in obedience thereto shall be as 
 valid as if they had been granted by Justices acting for the proper 
 county; but such warrant must be directed and given in the first 
 instance to the constable or other officer of the county to which they 
 relate, and such constable, ^c. may take persons apprehended, ^c. 
 before Justices in the adjoining county. And by stat. 35 (/'. 3. c. ^^. 
 where sufficient distress cannot be found within the jurisdiction of the 
 Justice who granted the warrant, it may, on being backed by a Justice 
 of another county, be executed llicrcm. Also by 28 G. 3. c. 49. s. ^.
 
 Sect. III.] Of the Poors-Rates, 'J03 
 
 Justices for countieis at large may act as such within any city being a 
 county of itself situate therein or adjoining to such county, provided 
 they are Justices for such city. 
 
 By 17 G. 2. c. 38. s. 8. to prevent all vexatious actions against 
 overseers of the poor, it is enacted, that vi^here any distress shall be 
 made for any sum of money justly due for the relief of the poor, the 
 distress itself shall not be deemed to be unlawful, nor the party 
 making it be deemed a trespasser, on account of any defect, or want 
 of form in the warrant for the appointment of such overseers, or in 
 the rate or assessment, or in the warrant of distress thereupon ; nor 
 shall the party distraining be deemed a trespasser ah initio^ on account 
 of any irregularity, which shall be afterwards done by the party dis- 
 training ; but the party aggrieved by such irregularity, shall or may 
 recover full satisfaction for the special damage sustained thereby, and 
 no more, in an action of trespass, or on the case, at the election of 
 the plaintiff or plaintiffs. 
 
 l^ote. A warrant may be made to distrain before the time for 
 which the rate is made is expired (a). The practice in those cases 
 has been to grant a conditional warrant to distrain ; and by //i?//, C. J. 
 communis error facit jus {b). 
 
 A constable may levy a poors-rate on goods in another parish ; for 
 though he cannot execute out of his own district a warrant directed 
 generally to all constables, yet he may execute any where within the 
 limits of the Justice's jurisdiction, a warrant directed particularly to 
 him (f). 
 
 A distress for a poors-rate for lands not in the occupation of the 
 plaintiff may be replevied, notwithstanding the Sessions on appeal had 
 Confirmed the rate : the determining that a man may be assessed for 
 what he does not occupy being an excess of jurisdiction {d). 
 
 The granting of a warrant of distress by magistrates to enforce 
 payment of a poors-rate, is a judicial, not a ministerial act {e). Before 
 a distress for the rate be levied, a summons should go to the party, that 
 he may have an opportunity to shew that he has paid for it, or other- 
 wise to exonerate himself: for a poors-rate cannot be distrained for 
 before it be demanded, and the payment thereof refused (/). 
 
 If a landlord tender the poors-rate for his tenant, the overseers must 
 receive it, and a warrant ought not to be granted to distrain upon the 
 tenant [g). 
 
 If a landlord direct a tenant, who is overseer of the poor, to pay 
 on the landlord's account, rates irregularly assessed on him, and pro- 
 mises that the levies shall eat out the rents, the tenant may set them 
 off, or prove them as payment in an action for use and occupation [h). 
 
 (a) Bull. N. p. 8a. {b) I Const's Butt. 34:- pl- -i°- W ^ Ld. Raym. 545- 
 
 {d) % Bl. R. 1350. (f) 7 T. R. ^^o. (/) I Con:t's Bott. 241- pl- ^3^- 
 
 (jj) Ibid, Z12. pi. 139. Doug. 426. {A) 3 'riunit. 76.
 
 204 Of the Poors-Rates. [Chap. VIII. 
 
 If personal property be rateable, it is not to be done at random, and 
 to leave the party rated to get off as he can ; but the officer making the 
 rate must be able to support what he has done by evidence [a). 
 
 Where a person is overcharged in a poors-rate, the Sessions may re- 
 lieve him on appeal, and amend the rate, by lessening the sum 
 assessed on him, under thei 7 G. 2. c. 38 {b). 
 
 The Stat. 21 J. i. c. 12. enacts. That Justices of the peace, mayors, 
 bailiffs, churchwardens, and overseers of the poor, constables, and 
 other peace officers, may plead the general issue, and give the special 
 matter in evidence. It also enacts, That any action brought against 
 them shall be laid in the proper county ; and if upon the general issue 
 pleaded the fact shall appear to be done in another county, the jury 
 shall find the defendant not guilty. 
 
 By Stat. 7 7. I. f. 5. If case, trespass, battery or false imprisonment 
 shall be brought against any Justice of the peace, mayor, bailiff, con- 
 stable, life, concerning any thing by them done by virtue of their 
 office, they may plead the general issue, Cffr. and if the verdict shall 
 pass with the defendant, or the plaintiff shall be nonsuited, or suffer 
 any discontinuance thereof, the defendant shall have his double costs 
 allowed by the Judge before whom the matter is tried. 
 
 This act has been construed to extend to under-sheriffs and deputy- 
 constables, though they are not particularly mentioned (c). 
 
 Note. The 21 J. I. c. 12. extends this Act to churchwardens and 
 overseers of the poor [d). 
 
 The officers must get a certificate from the Judge, that the action 
 was brought against him for something done in the execution of his 
 office, in order to entitle himself to double costs (e). 
 
 Likewise the stat. 24 G. 2. c. 44. enacts. That no writ shall be sued 
 out against a Justice for what he shall do in the execution of his office, 
 till notice in writing of such intended writ shall have been delivered 
 to him, or left at the usual place of his abode a month before, and the 
 Justice may tender amends, and in case the same is not accepted, plead 
 such tender in bar to the action, together widi the plea of not guilty, 
 and any other plea with leave of the Court ; and if upon issue joined 
 thereon the jury shall find the amends so tendered to have been suf- 
 ficient •, then they shall give a verdict for the defendant. It likewise 
 enacts, That no action shall be brought against any constable or other 
 officer, or any other person acting by his order, for any thing done 
 in obedience to a Justice's warrant, until demand be made of the 
 perusal and copy of such warrant, and the same has been refused for 
 the space of six days ; and in case the warrant be shewed and a copy 
 taken, and afterwards an action be brought against the constable, 
 without making the Justice who signed or sealed the warrant a de- 
 
 (<.) 4 T. R. 7 77. (*) z T. R. 6z3. CO Bull. N. P. 33i« 
 
 (0 Ihid. («) rfcid.
 
 Sect. III.] Of tlie Poors-Rates. 205 
 
 fendant, the jury shall, on producing the warrant, find a verdict for 
 the defendant, notwithstanding any defect of jurisdiction in the Jus- 
 tice ; and if such action be brought jointly against the Justice and him, 
 upon producing the warrant, the jury shall find for him ; and if they 
 find against the Justice, the plaintiff shall recover the costs he is to 
 pay to such defendant against the Justice, with a proviso, that if the 
 Judge certify that the injury was wilfully and maliciously com- 
 mitted, the plaintiff shall be intitled to double costs : and a proviso 
 likewise, that such action shall be commenced within six calendar 
 months after the act committed. 
 
 The above Act extends only to actions of tort. 
 
 The officer must prove that he acted in obedience to the warrant ; 
 and where the Justice cannot be liable, the officer is not within the 
 protection of the Act (a). 
 
 If a man be imprisoned on a Justice's warrant on the first day 
 of January^ and kept in prison till the first day of February, he will 
 be in time if he brings his action within six months after the first of 
 February; for the whole imprisonment is one entire trespass. The 
 Justice having pleaded tender of amends, the plaintiff obtained a rule 
 for the defendant to bring the money into Court for the plaintiff to 
 take the same, upon discontinuing his action {b). 
 
 An overseer of the poor, who distrains for a poors-rate under a 
 Justice's warrant, is an oflUcer within the protection of the Act [c). 
 
 But a churchwarden taking a distress for a poors-rate under a war- 
 rant of magistrates, is entitled to the protection of 42 G. 2. c. 44. in 
 having the magistrates made defendants with him in an action of 
 trespass {d). 
 
 Upon a distress for a poor's-rate being replevied, the Justice who 
 granted the warrant need not be joined, according to the directions 
 of the 24 G. 2. c. 44. ; for replevin is an action in rem, to which the 
 statute has never been held to extend : and so (it was said) with re- 
 spect to an action of trespass, if an excess of jurisdiction has been, 
 and the assessment was coram ?ion judice ; for such is not like the case 
 where the Justice had a general jurisdiction, and whose warrant the 
 officer is implicitly bound to obey (e). 
 
 Overseers cannot be guilty of trespass in levying a poors-rate by 
 distress, although the rate is objectionable, if the party has not ap- 
 pealed to the Sessions : neither does any defect in the rate unap- 
 pealed from, avoid the warrant {f). 
 
 No action of debt will lie for a poors-rate {g). 
 
 Whether the representative of a party assessed to the poors-rate be 
 liable to distress for the rate, seems doubtful. It seems clear, how- 
 ever, that the representative is intitled to notice, before his testator's 
 
 (tf) 3 Burr. 1766. (i) Bull. N. p. 24. («) Ibid. Leoflft. 249. (rf) a Bl. R. 1331. 
 (») 7T.R. %jo. (/) I Const's Bott, 2^6. pi. 24a. i Burr. J87. {g) % Burr. iij;. 
 6
 
 206 Of Waste ; wherein of Fia^tures. [Chap. IX. 
 
 or intestate's goods are distrained : in order that he may have the 
 same opportunity of exempting them from the distress, as his tes- 
 tator or intestate v/ould have had [a). 
 
 As to what is distrainable for a poors-rate, the principle of a dis- 
 tress being a pledge, does not in this case obtain as it does in respect 
 of rents and amerciaments. In this instance the duty is personal, 
 and the thing distrained is in satisfaction of the non -performance of 
 it, and not as in the old common law distresses, In the nature of a 
 nomine poetiay to compel payment (b). The solid distinction is, that 
 the seizing under the 43 Eliz. and such like Acts of Parliament, is 
 but partly analogous to the common law distress (as being reple- 
 visable, l^c.) y but is much more analogous to the common law exe- 
 cution ; like z. fieri facias i where the surplus, after sale, shall be 
 returned (c). 
 
 Therefore money, it seems, may be distrained for a poors-rate. 
 So the tools of a man's trade, his wearing apparel, and all other 
 articles necessary to enable him to earn the money for which the 
 goods are taken (J). So, beasts of the plough are distrainable for the 
 poors-rate, even although there were other distrainable goods on the 
 premises ; on the principle of analogy to an execution {e). 
 
 The Appeal. — With respect to the particular grounds and the course 
 of appeal, the reader is referred to stats. 5 G. 2. c. 19. 17 G. 2. f. 
 38. ^ 41 G. 3. f. 23. and to the cases thereon in i Comfs Boifs Poor 
 Laws, 
 
 (a) a Burr. 1 157. I Bl. R. 284. s. c. (A) 1 Burr. 588. {c) 1 Willes, 169. 
 
 (</) I Const's Bott. a4a. pi. 230. p. aap. («■) i Bur. j88. 
 
 CHAPTER IX. 
 
 Of the general Incidents to Leases (continued, J 
 
 Section I. Of Waste ; wherein of Fixtures, 
 Section II. Of Common of Estovers. 
 Section III. Of Emblements. 
 
 Section I. Of Waste ; wherein of Fixtures. 
 
 WASTE, vastutHy is a spoil or destruction in houses, gardens, 
 trees, or other corporeal hereditaments, to the disherison of 
 him that hath the remainder or reversion in fee-simple or fee-tail (a), 
 
 (0) Co. r, it. /J.
 
 Sect. I.] Of Waste ; wherein of Fixtures. 207 
 
 Waste, Is either voluntarj^ which is a crime of commission, as by 
 pulling down a house ; or it is permissive^ which is a matter of omis- 
 sion only, as by suffering it to fall for want of necessary reparations; 
 both of which are equally injurious to him that hath the inherit- 
 ance {a). Voluntary waste chiefly consists in ist. felling timber- 
 trees; 2dly, pulling down houses; 3dly, opening mines, or pits; 
 4thly, changing the course of husbandry; 5thly, destroying heir- 
 looms (b). 
 
 Whatever does a lasting damage to the freehold or inheritance is 
 waste ; therefore, removing wainscot, floors, or other things once 
 fixed to the freehold of a house, is waste. With respect however to 
 what shall be deemed fixtures of such a nature, or under such cir- 
 cumstances as that they can or cannot be removed by an out-going 
 tenant, or taken by his executor, or by the heir, the law is much less 
 strict at this day, than it used to be. The old and general rule of 
 law was, that whatever was fixed to the freehold became part of it, 
 and could not be taken away. But of late years there have been ex- 
 ceptions to this rule [c]. The first is between landlord and tenant, 
 the latter of whom may now take away during the term all chim- 
 ney pieces, and even wainscot put up by himself; so of beds fas- 
 tened to the ceiling with ropes ; nay even though nailed ; and all 
 such things necessary for trade, as brewing utensils, furnaces, cop- 
 pers, fire-engines, cyder-mills, &c. as he has himself put up or 
 erected {d). 
 
 But such removal must be within the term^ otherwise he will be 
 deemed a trespasser. Thus, where tenant for years made an un- 
 der-lease of a house to J. S. who was by trade a soap-boiler : jf. S. 
 for the convenience of his trade, puts up vats, coppers, tables and 
 partitions, and paved the back-side, &c. and now upon a Jieri facias 
 against J. S. which issued on a judgment in debt, the Sheriff took 
 up all these things, and left the house stripped and In a ruinous con- 
 dition, so that the first lessee was liable to make it good, and there- 
 fore brought a special action on the case against the Sheriff and those 
 that bought the goods, for the damage done to the house. Et per 
 Holty C.J. it was held; ist, that during the term, the soap-boiler 
 might well remove the vats he set up in relation to trade, and that 
 he might do it by the common law, (and not by virtue of any special 
 custom) in favour of trade and to encourage industry: but after the 
 term, they became a gift in law to him in reversion, and are not 
 removable ; 2dly. that there was a difference between what the soap- 
 boiler did to carry on his trade, and what he did to complete the 
 house, as hearths and chimney-pieces, which he held not remov- 
 able ; [the latter however, at least, are now removable ;] 3dly, that 
 
 (a) Wood's Inst. 5»i. (i) i Cruise's Dig. tit 3. s. 14. 
 
 (/) 3 Atk. 16. n. I. \d) I Atk. 477, 8.
 
 5K)8 Of Waste ; "wherein of Futures. [Giap. IX. 
 
 the ShurifF might take them in execution, as well as the under-lessee 
 might remove them; and so this was not like tenant for years without 
 impeachment of waste : in that case he allowed the Sheriff could not 
 cut down and sell, though the tenant might, and the reason is, be- 
 cause in that case, the tenant hath only a bare power without an in- 
 terest, but here the under-lessee hath an interest as well as a power, 
 as tenant for years hath in standing corn, in which case the Sheriff 
 can cut down and sell (a). 
 
 Where the tenant, however, has by law a right to carry away any 
 erections or other things, on the premises which he has quitted, the 
 inclination of Lord Kenyan's mind was, that he had a right to come 
 on the premises, for the purpose of taking them away : but as to 
 that point, the defendant in the principal case had let judgment go 
 by default (b). 
 
 In trover for ten load of timber, the case was, that the defendant 
 had been tenant to the plaintiff, and erected a barn upon the pre- 
 mises, and put it upon pattens and blocks of timber lying upon the 
 ground, but not fixed in or to the ground : and upon proof that it 
 was usual in that country to erect barns so, in order to carry them 
 away at the end of the term, a verdict was given for the defen- 
 dant (f). But though Lord Chief Justice Treby thought proper in 
 that case to take advantage of the custom of the country, yet it is 
 apprehended that it would now be determined in favour of the ten- 
 ant without any difhculty. — But when a purchaser of lands had 
 brought an ejectment against the tenant from year to year, and the 
 parties had entered into an agreement that judgment should be en- 
 tered for the plaintiff, with a stay of execution till a given period ; 
 though in such agreement no mention was made of any buildings or 
 fixtures, it was held that the tenant could not in the mean time re- 
 move buildings (a wooden stable standing upon rollers) or fixtures 
 (posts or rails) from the premises, which he had himself erected 
 before action brought ; because the fair interpretation of such agree- 
 ment was, that the defendant should in the mean time do no act to 
 alter the premises, but should deliver them up in the same condition, 
 as when the agreement was made, and judgment signed. For 
 though he would clearly have been entitled to take away the articles, 
 if he had done it during the continuance of his term from year to 
 year, yet by the agreement the parties had made a new contract, 
 which put an end to the term (d). 
 
 If, however, a man sells a house where there is a copper, or a brew- 
 house where there are utensils, unless there was some considera- 
 tion given for them, and a valuation set upon them, they would not 
 pass (e). 
 
 (a) I Aik. 477. I Salk. 368. (*) 3 Esp. R. 35- (0 Bull. N. P. J4' 
 
 (^; I H. Bl. iji. (0 I Atk. 478.
 
 Sect. I.] Of Waste ; *ti'here.in of Flvturcs. 209 
 
 In an action of covenant brought by the plaintiff' against the de- 
 fendant who had been his lessee, under a lease containing a coven- 
 ant that the lessee should leave all the buildings which then were, or 
 should be erected on the premises during the term, in repair, {jV. 
 the breach assigned was, that the defendant took down and carried 
 away two sheds, which had been erected during the term. The de- 
 fendant pleaded performance of the covenants, and issue was taken 
 on the breach as above assigned. The buildings in question were two 
 sheds, called Dutch barns, which had been erected by the defendant 
 during his term ; and which his counsel contended he had a right to 
 remove. Lord Ketiyoti. — If a tenant will build upon premises de- 
 mised to him a substantial addition to the house, or add to its magni- 
 ficence, he must leave his additions at the expiration of the term, 
 for the benefit of his landlord : but the law will make the most fa- 
 vourable construction for the tenant, where he made necessary and 
 useful erections for the benefit of his trade or manufacture, and 
 which enable him to carry it on with more advantage. It has been 
 held so in the case of cyder-mills, and in other cases ; and I shall 
 not narrow the law, but hold erections of this sort, made for the 
 benefit of trade, or constructed as the present, to be removable at 
 the end of the term. It was then contended, that by the express words 
 of the covenant the tenant was to leave all erections on the premises 
 at the end of the term. Lord Kenyoti. — I am aware of the full ex- 
 tent of that, and not quite sure that it concludes the question. It 
 means, that the tenant should leave all those buildings which are an- 
 nexed to and become part of the reversionary estate {a). [See Lord 
 EllenhorotigU s Notice of this N'ls'i Priiis Case, in Ehves v. Manvy i 
 East's R. 38.] 
 
 A covenant by a tenant to yield up in repair at the expiration of 
 his lease all buildings which should be erected during the term upon 
 the demised premises includes buildings erected and used by the ten- 
 ant for the purpose of trade and manufacture, if such buildings be 
 let into the soil, or otherwise fixed to the freehold, but not where 
 they merely rest upon blocks or pattens {b). 
 
 Fixtures.— U.2LngmgSy pier-glasses, ^c. though forming part of the 
 wainscot and fixed with nails and screws to the freehold, are not to 
 be taken as part of the freehold, but are removable by the lessee of 
 the house (c). — So marble chimney-pieces may be removed by the 
 tenant [d). 
 
 To trespass for breaking and entering, i^c. and pulling down and 
 taking away certain buildings, i^c. the defendant, as to the break- 
 ing and entering, suffered judgment by default, and pleaded not 
 guilty as to the rest. It was held^ that such plea was sustained by 
 
 (a) 3 Esp. R. II. (i) I Taunt. 19. 
 
 (<:) I P. Wms. 94. (</) I Atk. 477.
 
 510 OJ' JVade ; -ivhercin of Fixtures. [Cliap. IX, 
 
 shewing that the building taken away, which was of wood, was 
 erected by him as tenant of the premises, on a foundation of brick, 
 for the purpose of carrying on his trade, and that he still continued 
 in possession of the premises at the time when, i^c. though the term 
 was then expired. — At the trial. Lord Kenyan observed, that the 
 mere erection of a chimney would not prevent the right of taking 
 awav the rest of the building, which surrounded it, where the trade 
 was carried on. In Dudley and Dudley^ a steam-engine, to which a 
 chimney necessarily belonged, was held to be removable. Modern 
 determinations have, for the benefit of trade, allowed many things 
 to be removed, which the rigour of former determinations, consider- 
 ing them as fixed to the freehold, prohibited. The case of cyder-mllls 
 is familiar to us all. The construction ought to be favourable to the 
 tenant, and my opinion is, that he was warranted in removing the 
 building in question ; but I will reserve the point [a]. And upon the 
 case being argued afterwards, his Lordship said. That the old cases 
 upon this subject leant to consider as realty whatever was annexed to the 
 freehold by the occupier ; but in modern times the leaning has al- 
 ways been the other way in favour of the tenant, in support of the 
 interests of trade, which is become the pillar of the state. What 
 tenant will lay out his money in costly improvement of the land, if he 
 muot leave every thing behind him which can be said to be annexed 
 to it ? Shall it be said, that the great gardeners and nurserymen in 
 the neighbourhood of this metropolis, who expend thousands of 
 pounds in the erection of green-houses, hot-houses, ISc. are obliged 
 to leave all these things upon the premises, when it is notorious that 
 that they are even permitted to remove trees, or such as are likely to 
 become such, by the thousand, in the necessary course of trade } If 
 it were otherwise, the very object of their holding would be defeated. 
 This is a description of property divided from the realty ; and some 
 of the cases have even gone further in favour of the executor of tenant 
 for life againt the remainder-man, between whom the rule has been 
 holden stricter ; for it has been determined that the executor of tenant 
 for life was entitled to take away the fire-engine of a colliery. The 
 case of Fitzherbert v. Skaiv (i H. Bl. R. 15B. vide ante.) turned upon 
 the construction of an agreement that such things should be left on 
 the premises, and decided nothing against the general principle. Here 
 the defendant did no more than he had a right to do : he was in fact 
 still in possession of the premises at the time the things were taken 
 away, and tliereforc there is no pretence to say that he had abandoned 
 them. And by Lawrence^ J. it is admitted that the defendant has a 
 right to take these things away during the term : and all that he ad- 
 mits upon this record against himself by suffering judgment to go by 
 default as to the breaking and entering is, that he was a trespasser in 
 
 (.1) 4 Tsp. R. ,1V
 
 ^ct. 1-3 Of ifasle ; wliercin ()!' I'i.vturcs. 21 1 
 
 coming upon the land, but not a trespasser dc bonis asportntis ; as to 
 so much therefore he is entitled to judgment {a). 
 
 Another exception is between tenant for life or in tail, and the 
 reversioner or remainder-man. The former also may remove brew- 
 ing utensils, furnaces, coppers, fire-engines, cyder-mills, c3*r. which 
 he has erected, and by which he not only enjoys the profit of the 
 estate, but carries on a species of trade ; and if he does not remove 
 them in his lifetime, they go to his executor [b). Reasons of public 
 benefit and convenience have tended to establish this principle ; and 
 indeed it is but consonant to common ideas of justice : as for in- 
 stance, in the case of a fire-engine, it is very well known that little 
 profit could be made of coal mines without such an engine ; and 
 tenants for life would be discouraged in erecting them, if they must 
 go from their representatives to a remote remainder-man, when the 
 tenant for life might possibly die the next day after the engine was 
 set up (c). So, emblements go to the executor, and not to the re- 
 mainder-man, the public being interested in the produce of corn and 
 other grain. But corn growing belongs, it is said, to a devisee of 
 land, and not to the executor. Though a devisee of goods, stock 
 and moveables shall take it from both (<7). Hangings, chimney= 
 glasses, or pier-glasses, being matters of ornament and furniture, do 
 not go with the house, but to the executor {e). 
 
 The rule however still holds as between heir and executor : the 
 freehold descending on the heir, the executor cannot enter to take 
 away fixtures without being a trespasser [f). Indeed, in questions 
 between the heir or devisee and the executor, cupboards, presses, 
 lockers, and other fixtures of the like kind, may with propriety enough 
 be considered as annexed to and parts of the freehold. The law will 
 presume, that it was the intention of the owner, under whose bounty 
 the executor claimeth, that they should be so considered, to the 
 end that the house might remain to those, who by operation of law 
 or by bequest should become intitled to it, in the same plight he put 
 it, or should leave it, entlie and undefaced. But in capital case: 
 Mr. Justice Foster [g) was of opinion tiiat such fixtures which merely 
 supply the place of chests and other ordinary utensils of household, 
 should be considered in no other light than as mere moveables, par= 
 taking of the nature of those utensils, and adapted to the same use. 
 Therefore in favour of life, a distinction is to be taken between cases 
 relative to mere property and such wherein life is considered. — An 
 action of trover (h) was brought by the plaintifTs as administrators of 
 Robert Latuton against the defendant for certain salt-pans which were 
 put into wyche houses in Cheshire. The pans were brought in' pieces. 
 
 (a) a E«i*s R. 83. {b) I Atk. 477, 3. (0 3 Atk. i6. 
 
 {d) Bull. N. P. 34. (f) I p. Wms. 94. (/) I Atk, 477. (g-) Fost. 109. 
 
 (*y Lavrton -^ I a\vton,B,R, East, 2:; G, 3, cited n. i, 3 Atk 16. & i. H; Bl. R. 3J9. n.«. 
 
 P2
 
 212 Of JFaste : wherein of Fixtures. [Chap. IX, 
 
 The wyche houses are of no use without the pans, nor is the brine of 
 any use without them. There was room for the workmen to walk 
 round them within the building. The pans were fixed by brick and 
 mortar to the floor of the building ; and there was a furnace under it. 
 The building and lodging rooms at the end of it, which building, 
 with the pans, let for 8/. a week. The question was, whether these 
 pans were to go to the executor or to the heir. The ancestor was 
 seized in fee. Lord Mansfield delivered the opinion of the Court. 
 All the old cases (and there are some to be found in the year-books, 
 ^hep. Touch. 469, 470.) lean in favour of the heir, and so rigidly, that 
 if a tenant was to put up a wainscot or pictures let into the wainscot, 
 life, he should not take them away. There has been a relaxation of 
 two species of property, the one between landlord and tenant, as 
 marble chimney-pieces, and things which are necessary for trade, l^c. 
 and in the removal of these there is no hurt to the landlord. The 
 tenant says, I leave the premises just as I found them. The other 
 species in which there has been a relaxation is, between tenant for 
 life and the remainder-man. If the former has been at any expense 
 for the benefit of the estate, as by erecting a fire-engine, or any thing 
 else by which it may be improved, in such case it has been deter- 
 mined that the fire-engine should go to the executor, on a principle 
 of public convenience ; being an encouragement to lay out money in 
 improving the estate, which the tenant would not otherwise be dis- 
 posed to do. The same argument may be applied to the case of 
 tenant for life and remainder-man, as to that of landlord and tenant ; 
 namely, that the remainder-man is not injured, but takes the estate in 
 the same condition as if the thing in question had never been raised. 
 The tenant for life will not erect such things unless they can go to 
 his executor. But I cannot find any case (except that about the 
 cyder-mill) where there has been any relaxation between the heir and 
 executor. That case is not printed at large, but it most probably 
 turned upon a custom. Now consider the present case, which is very 
 strong. A salt brine in the county of Cheshire is a most valuable in- 
 heritance. But there is no enjoying the inheritance without the build- 
 ings and salt-pans : they are of no use but for that purpose, and the 
 inheritance is of no value without them. To the executors they can 
 be worth no more than old iron and old bricks, if taken away : he 
 could never mean, therefore, to give them to the executor, and put 
 him to the expense of taking them away without any advantage to 
 him, who could only have the old materials, or a contribution from 
 the heir in lieu of them. Here the ancestor erected them at his own 
 expense on his fee-simple. It is impossible that he should mean them 
 to be severed at his death ; for they are worth nothing to an executor, 
 and very valuable to the heir, who gains 8/. per week by them. On 
 the reason of the thipR, therefore, and the intention of the testator,
 
 Sect. I.] Of Waslc ; xvhetein of Futures, 21 S 
 
 they must go to the heir. It would have been a very different consi- 
 deration, if this salt-brine had been let to a tenant who had erected 
 these pans. There he might have said, I was at the expense of erect- 
 ing them, and therefore my executor should have them ; and I leave 
 the estate as I received it : that, as I stated before, v/ould be for the en- 
 couragement and convenience of trade, and the benefit of the estate. 
 Therefore we are of opinion they go to the heir. Judgment for the 
 defendant. 
 
 This subject, so important to every one in the situation of landlord 
 or tenant, is treated in a manner so elaborate and perspicuous by the 
 late learned and noble Chief Justice of the Court of King's Bench, 
 in the judgment delivered by him in the case of Eliues v. Maiv (a), 
 that the information which we are desirous to convey to our readers 
 would be incomplete were we to forbear to insert any part thereof. 
 
 The immediate point decided was, that a tenant in agriculture, who 
 erected at his own expense, and for the mere necessary and convenient 
 occupation of his farm, a beast-house, carpenter's shop, fuel-house, 
 cart-house, pump-house, and fold-yard wall, which buildings were of 
 brick and mortar, and tiled, and let into the ground, cannot remove 
 the same, though during his term, and though he thereby left the 
 premises in the same state as when he entered. 
 
 In delivering the judgment of the Court, Lord Ellenboroughy having 
 stated the above facts of the case, said. The question for the opinion 
 of the Court was, Whether the defendant had a right to take away 
 these erections ,•* Upon a full consideration of all the cases, we are 
 all of opinion that the defendant had not a right to take away these 
 erections. 
 
 Questions respecting the right to what are ordinarily called fixtures, 
 principally arise between three classes of persons, ist. Between dif- 
 ferent descriptions of representatives of the same owner of the inhe- 
 ritance, viz. between his heir and executor. In this first case, i. e. as 
 between heir and executor the rule obtains with the most rigour in fa- 
 vour of the inheritance, and against the right to disannex therefrom, 
 and to consider as a personal chattel, any thing which has been af- 
 fixed thereto. 2dly, Between the executors of tenant for life or in 
 tail, and the remainder-man or reversioner ; in which case the right 
 of fixtures is considered more favourably for executors, than in the 
 preceding case between heir and executor. The 3d case, and that in 
 which the greatest latitude and indulgence have always been allowed 
 in favour of the claim to having any particular articles considered as 
 personal chattels, as against the claim in respect of freehold or inhe- 
 ritance, is the case between landlord and tenant. 
 
 But the general ruh on the subject is that which obtains in the first
 
 214 Of IVaste ; "wheyein of Fixtures, [Chap. IX. 
 
 mentioned case, /. e. between heir and executor ; and that rule was 
 found in the year-book i7 ii. 2./). 518. and laid down at tlie close of 
 Herlakendetf s case, (4 Co. 64. and Co. Lift. 53. in Cooke v. Humphrey y 
 MoorCf 177. and in Lord Derby v. Jsqutihi Hob. 334. and in other 
 cases :) is that where a lessee, having annexed any thing to the freehold 
 during the term, afterwards takes it away, it is waste. But this rule 
 at a very early period had several exceptions attempted to be engrafted 
 upon it, and which were at last effectually engrafted upon it, in favour 
 of trade and of those vessels and utensils which are immediately sub- 
 servient to the purposes of trade. In the year-book 42 ^. 3. 6. the 
 right of the tenant to remove a furnace erected by him during his term 
 is doubted and adjourned. In the year-book of the 20 i/. 7. 13. a. ^ 
 b. which was the case of trespass against executors for removing a fur- 
 nace fixed with mortar by their testator and annexed to the freehold, 
 and M'hich was holden to be wrongfully done, it is laid down, that 
 •' If a lessee for years makes a furnace for his advantage, or a dyer 
 make his vats or vessels to occupy his occupation during the terin^ he may 
 remove them : but if he suffer them to be fixed to the earth after the 
 term., they then belong to the lessor. And so of a baker. And it is not 
 waste to remove such things within the term by some, and this shall 
 be against the opinions aforesaid." But the rule in this extent in fa- 
 vour of tenants is doubted afterwards in 21 //. 7. 27. and narrowed 
 there, by allowiiig that the lessee for years could only remove, within 
 the term, tilings fixed to the ground, and not to the walls of the prin- 
 cipal building. However in process of time the rule in favour of the 
 right in the tenant to remove utensils set up in relation to trade be- 
 came fully established : and accordingly we find Lord Holt in Poole's 
 case, Salk. 368. laying down, (in the instance of a soap-boiler, an un- 
 der-tenant whose vats, coppers, isjc. fixed, had been taken in execu- 
 tion, and on which account the first lessee had brought an action 
 against the sheriff,) that " during tlic term the soap-boiler might well 
 remove the vats he set up in relation to trade ;" and that he might do 
 it by common law, and not by virtue of any special custom, •• in fa- 
 vour of trade, and to encourage industry," but that after the term tliey 
 became a gift in law to him in reversion, and were not removable. 
 He adds, that there was a difference between wliat the soap-boiler did 
 to carry on " his trade" and what he did to complete " his house," as 
 •* hearths and chimney-pieces," which were held not removable. 
 The indulgence in favour of the tenant for years daring the term has 
 been since carried further, and he has been allowed to carry away 
 matters of ornament, as ornamental marble chimney-pieces, pier- 
 glasses, hangings, wainscot fixed only by screws, and the like. Beck 
 V. ReboiVy I /'. IVnis, 94. expartc Quinceyy I Jtk. 477. and Laivton v. 
 jMivtouy '}, yltk. 13. [see also ^ ///<?. J I'ut no adjudged case has yet 
 j^onc tiic length of cstablibhifig tiiai buildings subservient to purposes
 
 •Sect. 1.] Of ll'aste ; xvhercin qj' Fivturcs, 21.5 
 
 of agriculture, as distinguished from those of trade, Iiave been re- 
 movable by an executor of tenant for life, nor by the tenant himself 
 who built them during his term. In deciding whether a particular 
 fixed instrument, machine, or even building, should be considered as 
 removable by the executor, as between him nnd heir, the Court in 
 the three principal cases on this subject {^viz. 3 Atk. 13. Ambler 1 13. 
 and I. H. Black. 259. in /<. [andyM. j-, c] may be considered as having 
 been decided mainly on the ground, that where the fixed instrument, 
 engine, or utensil, (and the building covering the same falls within 
 the same principle,) was an accessary to a matter of a personal na- 
 ture, that it should be itself considered as personalty. The fire-engine 
 in 3 Atk. and Ambler was an accessary to the carrying on the trade of 
 getting and vending coals ; a matter of a personal nature. Lord Hard' 
 nvicke says, in the case in Ambler, " A colliery is not only an enjoyment 
 of the estate, but in part carrying on a traded And in the case in 3 Atk. 
 he says, " One reason that weighs with me is its being a mixed case, 
 between enjoying the profits of the lands, and carrying on a species 
 of trade ; and considering it in this light, it comes very near the in- 
 stances in brewhouses, isfc. of furnaces and coppers." Upon the 
 same principle, Lord C. B. Comyns may be considered as having de- 
 cided the case of the cyder-mill •, i. e. as a mixed case between enjoy- 
 ing the profits of the land and carrying on a species of trade ; and as 
 considering the cyder-mill as properly an accessary to the trade of 
 making cyder (c). In the case of the salt-pans, Lord Mansfield does 
 not seem to have considered them as accessary to the carrying on a 
 trade ; but as merely the means of enjoying the benefit of the inhe- 
 ritance. He says, ♦♦ The salt-spring is a valuable inheritance, but no 
 profit arises from it unless there be a salt-work : which consists of a 
 building, ^r, for the purpose of containing the pans, <^c. which are 
 fixed to the ground. The inheritance cannot be enjoyed without 
 them. They are accessaries necessary to the enjoyment of the princi- 
 pal. The owner erected them for the benefit of the inheritance." 
 Upon this principle he considered them as belonging to the heir, as- 
 parcel of the inheritance for the enjoyment of which they were made, 
 and not as belonging to the executor, as the means or instrument of 
 carrying on ^ trade. If, however, he had even considered them as 
 belonging to the executor, as utensils of trade, or as being removable 
 by the tenant, on the ground of their being such utensils of trade, 
 still it would not have affected the question now before the Court, 
 xvhich is the right of a tenant for mere agricultural purposes to remove 
 buildings fixed to the freehold, which were constructed by him for the 
 ordinary purposes of husbandry, and connected with no description of 
 trade whatsoever ', and to which description of buildings no case (ex= 
 
 (o) 3 iiiisi's Fs.. 33.
 
 216 Of Waste ; xvlierein iif Futures, [Chap. 1X» 
 
 cept the Nisi Prius case of Dean and Allaly {Esp. R.) before Lord 
 Kenyotii and which did not undergo the subsequent review of himself 
 and the rest of the Court) has yet extended the indulgence allowed 
 to tenants in respect to buildings for the purposes of trade. In the 
 case in Bull. N. P. 34. of Culling v. Tuff?ielly before Lord C. J. Treby 
 at Nisi PriuSf he is stated to have holden that the tenant who had 
 erected a barn upon the premises, and put it upon pattens and blocks 
 of timber lying upon the ground, but not fixed in or to the ground, 
 might by the custom of the country take them away at the end of his 
 term. To be sure he might, and that without any custom ; for the 
 terms of ihe statement exclude them from being considered 2.% fixtures ^ 
 " they were not fixed in or to the ground." In the case of Fitzherbert 
 V. Shaw, 1 H. Bl. 258, we have only the opinion of a very learned 
 Judge indeed, Mr. J. Gould, of what nvould have been the right of the 
 tenant, as to the taking away a shed built on brick-work, and some 
 posts and rails which he had erected, if the tenant had done so during 
 the term : but as the term was put an end to by a new contract, the 
 question, what the tenant could have done in virtue of his right un- 
 der the old term, if it had continued, could never have come judicially 
 before him at Nisi Prius : and when that question was offered to be 
 argued in the Court above, the counsel were stopped, as the question 
 was excluded by the new agreement. As to the case of Penton v. Ro- 
 bart, 2 East's R. 88. it was the case of a varnish-house, with a brick 
 foundation let into the ground, of which the wood- work had been re- 
 moved from another place, where the defendant had carried on his 
 trade with it. , It was a building for the purpose of trade ,- and the tenant 
 was entitled to the same indulgence in that case, which, in the cases 
 already considered, had been allowed to other buildings for the pur- 
 poses of trade, as furnaces, vats, coppers, engines, and the like. And 
 though Lord Kenyan, after putting the case upon the ground of lean- 
 ing, which obtains in modern times, in favour of the interests of trader 
 upon which ground it might be properly supported, goes further, and 
 extends the indulgence of the law to the erection of green-houses and 
 hot-houses by nurserymen, and indeed by implication to buildings by 
 all other tenants of lands : there certainly exists no decided case, and, 
 I believe, no recognized opinion or practice on either side of Westmin- 
 ster Hall, to warrant such an extension. The Nisi Prius case of Dean 
 V. Allaly (reported in Mr. WoodfalPs book, and Mr. Espinasse's, 2 vol. 1 1 .) 
 is a case of the erection and removal by the tenant of two sheds called 
 Dutch barns, which were, I will assume, unquestionable fixtures. 
 Lord Kenyan says, " The law will make the most favourable construc- 
 tion for the tenant, where he has made necessary and useful erections 
 for the benefit of his trade and manufacture, and which enable him to 
 carry it on with more advantage. It has been so holden in the case of 
 cjrdcr-mills and utlicr cases; and I shall not narrow the law, but hold
 
 .^ect. I.] Of Wade ; 'wherein of Fh'luvcs, 217 
 
 erections of this sort made for the benefit of trade, or constructed ag 
 the present." Lord K. here uniformly mentions the benefit of trade, 
 as if it were a building subservient to some purposes of trade ; and 
 never mentions agriculture, for the purposes of which it was erected. 
 He certainly seems, however, to have thought that buildings erected 
 by tenants for the purposes of farming, were, or rather ought to be go- 
 verned by the same rules which had been so long judicially holden to 
 apply to buildings for the purposes of trade. But the case of build- 
 ings for trade has been always put and recognized as a known allowed 
 exception from the general tule, which obtains as to other buildings ; 
 and the circumstance of its being so treated and considered, establishes 
 the existence of the general rule to which it is considered as an ex- 
 ception. To hold otherwise, and to extend the rule in favour of te- 
 nants in the latitude contended for by the defendants, would be, as 
 appears to me, to introduce a dangerous innovation into the relative 
 state of rights and interests holden to subsist between landlords and 
 tenants. But its danger or probable mischief is not so properly a con- 
 sideration for a court of law, as whether the adoption of such a doc- 
 trine would be an innovation at all ; and being of opinion that it 
 would be so, and contrary to the uniform current of legal authorities 
 on the subject, we feel ourselves, in conformity to and in support of 
 those authorities, obliged to pronounce that the defendant had no 
 right to take away the erections stated and described in this case. 
 
 If a house be destroyed by tempest, lightning, or the like, which is 
 the act of Providence, it is no waste : and the stat. 6 Ann. c. 3 1. enacts, 
 that no action shall be prosecuted against any person in whose house 
 any fire shall accidentally begin ; with a proviso that the Act shall not 
 defeat any agreement between landlord and tenant {a). It seems to 
 be somewhat doubtful whether tenant by the curtesy is within this 
 statute. So, of tenants in dower {b). 
 
 Waste may be done in houses, by pulling them down, or suffering 
 them to be uncovered, whereby the rafters or other timber of the house 
 are rotteft : but the bare suffering them to be uncovered, without rot- 
 ting the timber, is not waste. So, if a house be uncovered when the 
 tenant cometh in, it is no waste in the tenant to suffer the same to fall 
 down. But though the house be ruinous at the tenant's coming in, 
 yet if he pull it down it is waste, unless he re-edify it again ; yet if 
 a house built de novo was never covered in, it is no waste to abate it. 
 Also, if glass-windows (though glazed by the tenant himself) be 
 broken down or carried away, it is waste ; for the glass is part of hi* 
 house. If the house be uncovered by tempest, the tenant must in 
 convenient time repair it : and though there be no timber growing 
 
 («) a Bl. Com. a8i. (*) i Inet. j;. a. n. i. Cruise VI. c.3. «. 39*
 
 I'lS . Of Waste. '[Chap. iX-, 
 
 upon the ground, yet the tenant must at his peril keep the house from 
 wasting [a). 
 
 The law favours the support and maintenance of houses for the ha- 
 bitation of mankind : therefore if two or more joint-tenants or tenants 
 in common be of a house of habitation, and the one will not repair 
 the house, the other shall have by the law a writ of de reparatione fa- 
 c'tenda, and the writ saith ad sustentationcm ejusdem domus temantiir. So 
 it is, if the lessor, by his covenant, undertake to repair the houses, yet 
 the lessee (if the lessor doth it not) may with the timber growing 
 upon the ground repair it, though he be not compellable thereunto (^). 
 
 But if the tenant do or suffer waste to be done in houses, yet if he 
 repair them before any action brought, there lieth no action of waste 
 against him ; but he cannot plead quod non fecit vastum^ but the special 
 matter (r). For the tenant may cut trees to mend houses, ^c. and 
 to do reparation : but if houses decay by the default of the tenant, to 
 cut trees to amend them is waste {d). Not so, however, if they were 
 ruinous at the time of the lease made : but if a frame was once co- 
 vered in in the time of the lessor, and the lessee erase it after his 
 death, -the heir shall have waste {e). 
 
 The tenant cuts down trees for reparations, and sells them, and 
 afterwards buys them again and employs them about necessary repa^ 
 rations ; yet it is waste by the vendition : he cannot sell trees and 
 with the money cover the house (/). 
 
 If the tenant of a dove-house, warren, park, vivary [a fish-pond jj 
 estangues, or the like, do take so many that such sufficient store be 
 not left as he found when he came in, this is waste ; and to suffer 
 the paling to decay, whereby the deer is dispersed, is waste (^). 
 
 If tenant cut down or destroy any fruit-trees, growing in the gar- 
 den or orchard, it is waste ; but if such trees grow upon any of the 
 ground which the tenant holdcth out of the garden or orchard, it is no 
 waste {h). 
 
 To suffer the germins [« germ'may the young roots of trees] upon 
 the roots of the trees to be again newly destroyed, (having before felled 
 the trees) it is new waste: and treble damages shall be recovered for 
 both (:). 
 
 Waste may also be committed in respect of timber trees, {yi-z. oakj 
 ash, and elm, and these be timber trees in all places) either by cutting 
 them down or topping them, or doing any act whereby the timber 
 may decay •, for timber is part of the inheritance. Also, in countries 
 where timber is scant, and beech or the like are converted to building 
 for the habitation of man, or the Uke, they are all accounted timber: 
 
 (a) Co. 1/itt. 53,4. and notes. (b^ Co. Lit. jj. (0 Ibid. 53, 4, and ncttj. 
 
 ill) V. N. D. 39. K. {<■'] ll'id. 6c. Q^ Dyei , 36. (/ ) Co. Lit. ut and. 
 
 (r) \M. Si. (i) Ibid. (0 I-. N. B. ^9. M. f-
 
 ■Sect. I.] Of Waste. 219 
 
 Cutting down of willows, beech, birch, r.sp, maple, or the like, 
 standing in ilie defence and safeguard of the house, is destruction : 
 so, if there be a quickset fence of whitethorn, if the tenant stub it up, 
 or suffer it to be destroyed, this is destruction ; and for all these and 
 the like destructions, an action of waste lietli. But cutting up of 
 quicksets is not waste, if it preserves the spring; nor is cutting of 
 ash under the growth of twenty years waste («). 
 
 With respect to what wood shall be deemed timber (by which is 
 meant such trees only as are fit to be used in building and repairing 
 houses) it is the custom of the country which makes some trees timber, 
 which in their nature, generally speaking, are not so, as horse-chesnut 
 and lime-trees : so of birch, beech, and asp ; and as to pollards, not- 
 withstanding what is said in Ploivd. 470. that these are not timber, 
 and that tithes arc to be paid of their loppings, (which could not be 
 if pollards were timber,) yet if the bodies of them be sound and 
 good, I incline to think them timber ; seeks if not sound, they being 
 in such case fit for nothing but fuel. Per Lord Chancellor Kmg: So 
 walnut-trees, where of considerable value, are to be estimated as 
 timber {b). 
 
 As to pollards, where an action was brought to recover the value of 
 certain pollard trees, on an estate purchased by the defendant of the 
 plaintiff, in the particular of which it was expressed, that all timber 
 nnd timber like trees should be taken at a fair valuation ; the defen- 
 dant resisted payment for the pollards, not deeming them to come 
 under the general description of timber-like trees : but after a long 
 hearing, a verdict was given for the plaintiff, for the value of the said 
 pollards (f). — "Where trees are of value, and the parties cannot agree 
 in the valuation of them as timber, the Court of Chancery will send 
 it to be tried, vt^hether by the custom of the country, any and which 
 of them are timber (i/). It was determined in the county of Torky 
 that birch-trees were timber, because they were used in that county 
 for building sheep-houses, cottages, and such mean buildings : and 
 al! the Justices on a conference were of opinion, that in that county 
 they were timber and belonged to the inheritance, and therefore could 
 not be taken by the tenant for life (e). 
 
 Windfalls are the property of the lord j for the timber while stand- 
 ing is part of the inheritance : but whenever it is severed, either by 
 the act of God, as by a tempest, or by a trespasser and by wrong, it 
 belongs to him who has the first vested estate of inheritance, whether 
 in fee or in tail, who may bring trover for it {/). So, where there 
 arc intermediate contingent estates of inheritance, and the timber is 
 cut down by combinations between the tenant for life and the person 
 
 (a) Co. lilt, ut ale, and ■aide post. Z P. Wins. 6ci. (i) 2 P- Wnii. 6ci. 
 
 (c) Rabbet V. Raikes, Suffolk Summer Assizcsj ijjoj, cor. Macdonald, C. B. 
 
 (d) i r. \Vnts.6c6. (.') Mooir, Sij. (/) 3 P. Wnib. a68.
 
 220 Of Waste, [Cliap. IX^ 
 
 who has the next vested estate of inheritance ; or if the tenant for life 
 himself has such estate and fells timber ; in these cases, the Court of 
 Chancery will order it to be preserved for him who has the first con- 
 tingent estate of inheritance under the settlement {a). A tenant for 
 life without impeachment of waste has as full power to cut down 
 trees and open new mines, for his own use, as if he had an estate of 
 inheritance ; and is in the same manner entitled to the timber, if 
 severed by others. This privilege, given by words, nvithout impeach- 
 ment of waste, is annexed to the privity of estate, so that if the person 
 to whom that privilege is given change his estate, he loses the privi- 
 lege. It has been held that the intent of this clause is only to enable 
 the tenant to cut down timber and open new mines, and that it does 
 not extend to allow destructive or malicious waste; such as cutting 
 down timber which serves for shelter or ornament of the estate (^). 
 
 If the tenant suffer the houses to be wasted, and then fell down 
 timber to repair the same, this is a double waste (c). 
 
 Digging for gravel, lime, clay, brick, earth, stone, or the like, or 
 for mines of metal, coal, or the like, hidden in the earth, and not 
 open when the tenant came in, is waste (d) ; but the tenant may dig 
 for gravel or clay for the reparation of the house, (though no pit 
 were open at the time of the lease,) as well as he may take convenient 
 timber trees (e). But if the pits or mines were open before, it is no 
 waste in the tenant continuing to dig them for his own use ; for it is 
 now become the mere annual profit of the land. Though mines be 
 open at the time, one cannot take timber to use in them (/). 
 
 It is waste to suffer a wall of the sea to be in decay, so as by the 
 flowing and reflowing of the sea the meadow or marsh is surrounded, 
 whereby the same becomes unprofitable ; but if it be surrounded 
 suddenly by the rage or violence of the sea, as by tempest, without 
 any default of the tenant, it is no waste punishable. So it is, if the 
 tenant repair not the banks or walls against rivers, or other waters, 
 whereby the meadows or marshes be surrounded, and become rushy 
 and unprofitable (g). 
 
 It is a general principle, that the law will not allow that to be 
 waste, which is not in any way prejudicial to the inheritance ; never- 
 theless it has been held, that a tenant or lessee cannot change the 
 nature of the thing demised. — Therefore if the tenant convert arable 
 land into wood, or e converso, or meadow into arable, it is waste ; for 
 it changes not only the course of husbandry, but the proof of his evi- 
 dence. The same rule is to be observed with regard to converting 
 one species of edifice into another, even though it be thereby improved 
 in its value {h). Thus if a lessee convert a corn-mill into a fulling- 
 
 (•) I T. R. 54. (A) Co. Lit. aao. n. 1. 3 Wood, 399. {c) Co. Lit. 53. 
 
 (/) Ibid. (0 I Wood's Inst. b. i. c. j. s. 4. Bl. Com. »8a. (/) Co. Lit. J3- 
 
 (X) ibid. (A) Cro. jK.iSa. 
 
 8
 
 Sect. II.] Of Common of Estovers, ^c. 221 
 
 mill, it is waste, though the conversion be to the lessor*s advantage. 
 So, the conversion of a brewhouse of 120/. per annum into other 
 houses let for 200/. per annum is waste ; because of the alteration of 
 the nature of the thing, and of the evidence (a). So, if the tenant 
 pull down a malt-mill and build a corn-mill it is waste. — Waste in the 
 house is waste in the curtilage, and waste in the hall is waste in the 
 whole house {b). 
 
 An injunction was granted against proceeding with alterations in a 
 house under an agreement for a lease, upon circumstances that would 
 probably prevent a specific performance, viz. surprise, the effect 
 of fraudulent misrepresentation and concealment, and the particular 
 nature of the alteration, for the conversion of a' private house to the 
 purpose of a coachmaker's business, wholly changing the nature of 
 the subject {c). 
 
 A tenant was restrained from cutting turf for sale, his lease giving 
 a right of estovers only, notwithstanding an uninterrupted practice 
 of eighty years {d). 
 
 A tenant from year to year having received notice to quit, a motion 
 was made for an injunction to restrain him from taking away the crops, 
 Cs'r. contrary to the usual course of husbandry, and from cutting and 
 damaging the hedge-rows, ^c. The Court observed, that though 
 there was no case of this sort upon a tenancy from year to year, yet 
 the principle applies equally to such a tenancy as to a lease for a 
 longer term. The Judges have uniformly said in modern times that 
 a tenant from year to year must treat the farm in a husband-like man- 
 ner, according to the custom of the country ; and the Court must 
 give its aid equally in that case, with the qualification that he is not to 
 remove any thing except according to the custom of the country (*). 
 [See also with respect to timber the following Section.] 
 
 Section II. Of Common of Estovers ; wherein of Wood. 
 
 Common of stovers, or estouviersf that is necessaries, or materials, 
 (from estoffer^ to furnish,) is a liberty of taking necessary wood for 
 the use and furniture of a house or farm from ofi^ another's estate. 
 Estovers are three kinds in law, and are incident to the estate of 
 every tenant, whether for life or years; but not at will, for such estate 
 is too mean(y). 
 
 The Saxon word bote (^), which signifies allowance or compensa- 
 tion, is used by us as synonimous to the French estouverit and therefore 
 house-bote is a sufficient allowance of wood to build or repair the 
 house, or to burn in it, which latter is sometimes called fire-bote ; 
 plough-bote and cart-bote are wood to be employed in making and 
 
 («) I Lev. 309. [b) I Mod. 95. (0 14 Ves. 526. (J) 1 Sch. & Lef. Rep. 8. 
 (0 16 Ves, Jun. 173, (/) Co. Lit. it». a. 2. Bl. Com. 35, (f) Ibid.
 
 1>:22 Of Common of Estovers ; [Chap. IX. 
 
 repairing all instruments of husbandry, as ploughs, carts, harrows, 
 rakes, fork.?, ^c. [a) ; and hay-bote or hedge-bote is wood for re- 
 repairing hedges or fences, as pales, stiles, and gates, to secure inclo- 
 sures. These botes or estovers must be reasonable ones; and such any 
 tenant or lessee may take ofF the land let or demised to him, without 
 waiting for any leave, assignment or appointment of the lessor, unless 
 he be restrained by special covenant to the contrary, which is usually 
 the case) (j^) : for house-bote, hay-bote, and fire- bote, do appertain 
 unto a termor of common right, and he may take wood for the same: 
 but if the tenant take more house-bote than needful, he may be 
 punished for waste V). 
 
 Common of estovers cannot be appendant to land, unless it be by 
 prescription : but to a house to be spent there. Therefore, though it 
 be said, that a custom that if the house fall, the materials shall be the 
 tenant's, would not be good ; yet when a house, having estovers ap- 
 pendant or appurtenant is blown down by wind, if the owner rebuild 
 it in the same place and manner as before, his estovers shall continue. 
 So, if he alter the rooms and chambers, without making new chim- 
 nies ; but if he erect any new chimnies, he will not be allowed to 
 spend any estovers in such new chimnies (d). But a prescription to 
 have estovers not only for repairing but building new houses on the 
 land is good ; yet it seems, if a man have common of estovers by 
 grant, he cannot build new houses to have common of estovers for 
 those houses {e). 
 
 It may not here be superflous to explain the meaning of the terms 
 appendant and appurtenant {/). — A thing appendant is that which be- 
 yond memory has belonged to another thing more worthy, which it 
 agrees with in its nature and quality. Therefore a common of turbary 
 may be appendant to a house {g)\ for a thing incorporeal may be ap- 
 pendant or appurtenant to a thing incorporeal ; but a thing corporeal 
 cannot be appendant to a thing corporeal, as land cannot be appendant 
 to land : and common appendant must be by prescription, for it can- 
 not begin at this day (/->'. A thing appurtenant is that which commences 
 at this day ; as if a man at this day grant to one common of estovers, 
 or of turbary, in fee-simple, to burn in his manor ; and if he make a 
 feoffment of the manor the common shall pass to the feollee (/). 
 Common appurtenant therefore is claimable by an existing grant ; as 
 well as by prescription : which always implies a grant ; and ;i right ol 
 common by prescription may be regulated by custom {h). 
 
 The lord may have the land of his tenant common appendant to his 
 own demesnes : and occupiers of land may, by custom, claim a right 
 
 (<j) Wood'i In .r. 344. (i) I". N. B. 59. M. (0 Terms de Ley. 
 
 {d) Co. 1-it. iij.b. F. N. B. 180. C. b. la Mod. 95. 4 Rep.87. 4 I^fO". 383- 
 \e) Cro. Jac. 25. 1-. N. U. 180. H. (/) Co. Lit. lai. 1). (^) i l^ol. 130. \. 36. 
 
 ILid. 1. 50. Ibid. 396. 1. 41. (/•) C). Lit. in. b. 1 Vnit. 407. i''- N. B. i8j. N. 
 
 (1) Cro. Car. 4X1, (/*) Z F.l. Uaym. 1186.
 
 Sect. 1 1. 3 xvJwrcia of IVood. 22^ 
 
 in aiieno solo [a] ; though inhabitants cannot, for Inhabitancy is too 
 vague a description, and extends to many others, besides the actual 
 occupiers of houses or land {b). 
 
 If a man have common of estovers in the woods of another, and he 
 who is tenant and owner of the wood cut down all the wood, he who 
 ought to have the estovers shall not have an action of waste, but shall 
 have assize of his estovers (c). Trespass also would lie and be a bet- 
 ter remedy (d). 
 
 If the tenant who hath common of estovers shall use them to any 
 other purpose than he ought, he that owns the wood may bring tres- 
 pass against him ; as where one grant twenty loads of wood to be 
 taken yearly in such a wood, ten loads to burn, and ten to repair pales ; 
 here he may cut and take the wood for the pales, though they need no 
 amending, but then he must keep it for that use [e). 
 
 So, where two elms were cut down for the purpose of repairs, one 
 of which only was used, it was said that although that tree which was 
 not employed [and which had been felled five years] was more than 
 sufficient to repair the house ; yet seeing that the tenant cut it down 
 for that purpose, and peradventure did not know what would serve 
 for that purpose, it v/as not any forfeiture ; for it had been judged, 
 that where one cut down wood to make hedges, and used the greater 
 part thereof in hedging, yet for the rest that was cut down for that 
 purpose, no tithes shall be paid [f). 
 
 Though the tenant may cut down and take sufficient wood to repair 
 walls, pales, fences, hedges, i^c. as he found them, yet he may not do 
 so to make new ones [g). 
 
 The tenant may cut down dead wood : and it is not waste to fell 
 seasonable wood which is used to be felled every twenty years, or 
 within that time (/j); but oaks cannot be said to be seasonable wood, 
 which are passed the age of twenty years ; but by a custom in, any 
 place where is plenty of wood (timber), oaks under twenty years may 
 •be seasonable wood -, and such custom may be alleged in the wood 
 itself (/■). 
 
 A termor may cut tlie underwood growing under the great woods 
 and tall woods {k) : but if there be not any tall wood, then he cannot 
 cut the underwood (/); for where waste was brought for topping and 
 lopping twenty ashes and twenty elms, on demurrer it was adjudged 
 for the plaintiff (w). It has however, notwithstanding, been held to be 
 a good custom, that copyholders in fee shall have the loppings of 
 poUengers, and the lord cannot, in such case, cut the trees down, for 
 that would deprive the copyholder of the future loppings. [PoUengers 
 or pollards are such trees as have been usually cropped, therefore dis,- 
 
 (<i) F. N. B. i8o.D. c, (,'.) iBl. R.928. (,; F. N.E. 59. A. Ilud. I'S. F. d, 
 
 (</) 12 Mod. 379. {e\ 9 Rep. 113. (/) Cro. Eiiz. 499. 
 
 if) I Inst. 53. \rooa\ [ji-t. 5)5. • (/.) F. N. E. 59. M. (0 Ibid, J. 
 
 ■'>} F. N. B. 6c. E. ,(/} Ibkl. b. ' ■■/,v} Cro. Cur.6-v.
 
 224 Of Common of Estovers ; [Chap. IX. 
 
 tinguished from timber-trees («).] And it has been resolved that by 
 the common law, a copyholder may cut off the under boughs, for such 
 lopping cannot cause any waste [b). 
 
 Though the termor hath of common right oaks, elm, ash, Is^c. for 
 repair of the house, and underwood, l2fc. for inclosures and firing, 
 yet it is said he cannot cut either oaks or ash for fire-wood ; but the 
 cutting at the age of seven years is not waste (f). 
 
 If a man cut wood to burn, where he hath sufficient dead wood, it 
 is waste {d). 
 
 A rector may cut down timber for the repairs of the parsonage- 
 house, or of the chancel, but not for any common purpose ; and if it 
 is the custom of the country, he may cut down underwood for any 
 purpose, but if he grubs it up it is waste. He may cut down timber 
 likewise for repairing any old pews that belong to the rectory; and he 
 is also entitled to botes for repairing barns and outhouses belonging 
 to the parsonage (e). And a parson or prebendary shall have a writ 
 of waste upon their lease {/). 
 
 It is true, that the first owner of the inheritance in esse shall have 
 timber blown down, but as an estate in contingency is no estate, and 
 the trees must become the property of somebody, therefore the first 
 remainder-man of the inheritance in being takes them {g). 
 
 So, with respect to tb^ case of a copyholder, who has only a pos- 
 sessory property in the timber trees, of which, if severed from the 
 freehold by tempest or otherwise, the property will be in the lord , 
 and a custom for the tenant to claim such trees would be a hard one, 
 and so likewise of the materials of the house (h). In either case, 
 being things annexed to the inheritance, the severance shall not trans- 
 fer the property •, this therefore is to be understood as of a copyholder, 
 not of inheritance (J). 
 
 For, as to a right to cut down timber by custom, where a copy- 
 holder hath the inheritance, and where his successor comes in by his 
 nomination, there such a custom may be good [k) : but a custom for 
 a copyholder for life to cut down and fell trees was held not to be 
 good, unless it be to build new houses on the land (/). 
 
 A custom that every copyhold tenant may cut down trees at his 
 will and pleasure, is unreasonable and void, for then a tenant at will 
 might do it ; so it is for a copyholder for life to do it ; and one of the 
 reasons given is, that the succeeding copyholder would not have where- 
 withal! to maintain the house and plough, which plainly intimates, that 
 a copyholder may cut timber to make reparations, and the rather, be- 
 cause permissive waste is a forfeiture in him(»H). 
 
 The lord may cut down timber trees, leaving sufficient, and the 
 
 (a) Plowd. 469. (*) Cro. Elii. 361. (0 F- N. B. 59. N. i. {d) Ibid. M. 
 (e) % Atk. 217. (/) V. N. B.60. K. ig) 3 Atk, 755. (*) II Mod. 68. 
 
 (i) Ibid. 95. (i) Cio. Cm. 2ZI. (/) Cro. Jac. aj. {m) C.ilhtrt's Tenures, 237. 
 
 Cro. Jac. 29,
 
 Sect. 1 1. 3 wherein of Wood, 225 
 
 custom to; cut makes no alteration j for it has been resolved, that every 
 copyholder may take trees for house-bote of common right ; so that 
 the laying the custom seems to be only by way of caution (a). 
 
 The right of the lord to take trees on a copyhold, perhaps, is ren- 
 dered somewhat doubtful by the reversal on error brought in parlia- 
 ment of the judgment in the case of Ashmead against Ranger {b). 
 
 It is clear that a copyholder may take the necessary estovers or 
 botes on his copyhold without a special custom [c]. 
 
 But to enable him to make them on other lands, a special custom 
 must be shewn [d). 
 
 As a tenant for life has a right to what may be sufficient for repairs 
 and botes, care must be taken in felling timber to leave enough upon 
 the estate for that purpose ; and whatever damage is done to the tenant 
 for life on the premises by him held for life, the same ought to be 
 made good to him {e). 
 
 Estovers may be granted in fee, and in a grant of estovers the gran- 
 tor may take the trees with the grantee. But underwood is a thing of 
 inheritance and perpetuity, and may be granted in fee by copy of 
 court-roll, and will support trespass quare claiisum f regit ; for in such 
 case, the grantor cannot meddle with the woods, nor can his lessee ; 
 for he hath entirely granted the underwood, and not estovers or so 
 many loads of wood, — A grant may be m?.de to a person by a deed 
 to which he is no party (/"). 
 
 If the lord of a manor cut down so many trees as not to leave suf- 
 ficient estovers, his copyholder may bring trespass againt him, and re- 
 cover the value of the trees in damages ; and even if the lord leave 
 sufficient estovers, yet he shall recover special damages, Wz. for the 
 loss of his umbrage, breaking his close, treading down his grass, l^c. 
 for the tenant had the same customary or possessory interest in the 
 trees that he has in the land ; and if the lord has a mind to cut trees, 
 his business is to compound with the tenant (^). [But see Ashmead 
 v. Ranger y ante.] 
 
 The lord of a manor, as such, has no right without a custom to 
 enter upon the copyholds within his manor, under which there are 
 mines and veins of coal, in order to bore for and work the same, and 
 the copyholder may maintain trespass against him in so doing (/>). 
 
 But an inclosure of the common by the lord may be no interrup- 
 tion of the tenants' enjoyment of their common of estovers ; nay, 
 probably it may be better for such inclosure. If indeed, by such in- 
 closure, their common of estovers were affected, or they were inter- 
 rupted in the enjoyment of it, they might certainly bring their action ; 
 
 (a) Gilbert's Tenures, 239. (i) il Mod. 18. iz Mod. 378. Salk. 638. Holt, 162. 
 
 Com. Rep. 71, i Ld. Raym. 551. (c) I.d. Raym. ante. & 1 1 Mod. 68. 
 
 {d) 4 Co. 31. b. (e) 3 P. Wms. 268. (/) Cro. Eliz. 413. (^) 12 Mod. 379. 
 
 Bull. N. P. 8^ s. c. (^) 10 East, 189.
 
 226 Of Emblements. ' [Chap. IX. 
 
 and the lord, in such case, could not justify such inclosure in preju- 
 dice to those rights (a). 
 
 If the lord of a manor plant trees on a common, the commoner has 
 no right to abate them, though there be not a sufficiency left ; his re- 
 medy is by action. But if the lord so plant as to destroy the common, 
 such an act would be considered as a nuisance, and the commoner 
 might abate it [b). 
 
 The distinction seems to be this : if the lord of the manor make a 
 hedge round the common, or do any other act that entirely excludes 
 the commoner from exercising his right, the latter may do whatever is 
 necessary to let himself into the common ; but if the commoner can 
 get at the common, and enjoy it to a certain extent, and his right be 
 merely abridged by the act of the lord, in that case his remedy is by 
 an action on the case, or by an assise, and he cannot assert his right 
 by any act of his own (r). 
 
 Section III. Of Emblements. 
 
 The word emblements is derived from the French emhlavence de hledy 
 corn sprung or put above ground, and strictly signifies the profits of 
 sown land ; but the doctrine of emblements extends not only to corn 
 sown, but to roots planted or other annual artificial profits (J). — Hops 
 growing out of ancient roots, have been held to be like emblements, 
 which shall go to the husband or executor of the tenant for life, and 
 not to him in remainder ; and are not to be compared to apples or fruits, 
 which grow of themselves (<•), 
 
 But it is otherwise of fruit-trees, grass, and the like, which are not 
 planted annually at the expense and labour of the tenant, but are ei- 
 ther a permanent or a natural profit of the earth : for when a man 
 plants a tree, he cannot be presumed to plant it in contemplation of 
 any present profit ; but merely with a prospect of its being useful to 
 himself in future, and to future successions of tenants {f). 
 
 It shall be intended primdfac'ie^ that the property of the corn is in 
 the owner of the soil. But, the public being interested in the pro- 
 duce of corn and grain, (among other reasons for the rule) emble- 
 ments go to the executor, and not to the remainder-man (^). 
 
 In some cases, indeed, he who sows the corn shall have the emble- 
 ments, In others not. 
 
 If tenant in fee, or in tail, or in dower, die after sowing the corn, 
 and before severance, his executor or administrator generally shall 
 have the emblements {h). 
 
 Tenant for life, or his representatives, shall not be prejudiced by any 
 
 (a) 6 T. R. 478. (/-) 2 lios. & Pull. R. 13. (i) WiUes, 1.^7. 6 T. R. 485. 
 
 (d') 2 Bl, Com. 123. (f) Cio. Car. 515. (/) 2 HI. Com. 12.3. 
 
 (g) % Sauiid. 401. I P. Wms. 94. {h) Com. ilij. tit. liu ns. (G. 3.) 
 
 7
 
 Sect. III.] Of Emblements. 227 
 
 sudden determination of his estate ; because such a determination is 
 contingent and uncertain. — Therefore, if a tenant for his own Ufe sows 
 the land, and dies before harvest, his executors shall have the emble- 
 ments or profits of the crop ; for the estate was determined by the act 
 of God, and it is a maxim in the law, that actus Dei nemini fac'it injii- 
 riam. The representatives therefore of the tenant for life shall have 
 the emblements, to compensate for the labour and expense of tilling, 
 manuring, and sowing the lands ; and also for the encouragement of 
 husbandry, which being a public benefit, tending to the increase and 
 plenty of provisions, ought to have the utmost security and privilege 
 that the law can give it [a). 
 
 Therefore if a man sows land and lets it for life, and the lessee for 
 life die before the corn be severed, his executor shall not have the em- 
 blements, but he in reversion; but if he himself had sowed the land 
 and died, it were otherwise (h). 
 
 So, if tenant for life sows the land, and grants over his estate, the 
 grantee dies before the corn severed, such grantee's executor shall not 
 have the corn (r). 
 
 So, if the lessee of a tenant for life be disseised, and the lessee of 
 the disseisor sows the land, and then the tenant for life dies, and he in 
 remainder enters, yet he shall not have the emblements, but the lessee 
 of the tenant for life (^). 
 
 So it is also, if a man be tenant for the life of another and cestui que 
 vicf or he on whose life the land is held, dies after the corn sown, the 
 tenant pur auter vie shall have the emblements {e). 
 
 The same is also the rule, if a life estate be determined by the act 
 of law (jT). 
 
 Therefore if a lease be made to husband and wife during coverture, 
 (which gives them a determinable estate for life) and the husband 
 sows the land, and afterwards they are divorced a vinculo matrimonii^ 
 the husband shall have the emblements in this case ; for the sentence 
 of divorce is the act of law. 
 
 So if tenant in tail give or grant his emblements of corn growing. 
 on the ground ; the donee may cut and take them after the death of 
 the tenant in tail (^). 
 
 So every one who has an uncertain estate or interest, if before se- 
 verance of the corn, his estate determine either by the act of God or 
 of the law, he shall have the emblements, or they shall go to his exe-r 
 cutor or administrator (/;); for, so it is in all cases regularly, where a 
 man sows land wherein he hath such an estate as may perhaps conti- 
 nue until the corn be ripe {i). 
 
 But if the estate be determined by the tenant's own act, as by for- 
 feiture by tenant for life for waste committed ; or if a tenant during 
 
 {a) a Bl. Com. 142. (h) Cro. Eliz. 464. (<:) Ibid. ' {i) Ibid. 463. 
 
 (r) Ibid. IZ3. (/) Ibid. (o-) Shep. Touch. 344. {J?) Ibid. (0 Ibid. 471- 
 
 0^2
 
 228 Of EmUements. [Chap. IX. 
 
 widowhood marries •, in these and similar cases the tenants having 
 thus determined the estates by their own acts, shall not be entitled to 
 take the emblements [a). 
 
 The under-tenants or lessees of tenants for life, have the same, nay 
 greater, indulgencies than their lessors, the original tenants for life. 
 The same ; for the law of estovers and emblements, with regard to 
 the tenant for life, is also law with regard to his under-tenant, who re- 
 presents him and stands in his place : Greater ; for in those cases where 
 tenant for life shall not have the emblements because the estate deter- 
 mines by his own act, the exception shall not reach his lessee who is 
 a third person [b] : thus, in the case of a woman who holds durante vi- 
 duitate ; her taking husband is her own act, and therefore deprives her 
 of the emblements, which, if she be a feme copyholder, the lord shall 
 have ; but if she leases her estate to an under-tenant who sows the 
 land, and she then marries, this her act shall not deprive the tenant of 
 his emblements, who is a stranger and could not prevent her (c). 
 
 With regard to emblements or the profits of lands sowed by tenant 
 for years, there is this difference between him and tenant for life : that 
 where the term of tenant for years depends upon a certainty, (as if he 
 holds from Midsummer for ten years,) and in the last year he sows a; 
 crop of corn, and it is not ripe, and cut before Midsummer^ the end 
 of the term, his landlord shall have it [d') ; for the tenant knew the 
 expiration of his term, and therefore it was his own folly to sow that 
 of which he never could reap the profits. In such case the landlord, 
 it is said, must enter on the lands to take the emblements {e). 
 
 But where the lease for years depends upon an uncertainty ; as 
 upon the death of the lessor, being himself only tenant for life, or 
 being a husband seised in right of his wife ; or if the term of years 
 be determinable upon a life or lives ; in all cases of this kind, the 
 estate for years not being certainly to expire at a time foreknown, 
 but merely by the act of God, the tenant, or his executors, shall 
 have the emblements in the same manner that a tenant for life would 
 be entitled thereto i^f). 
 
 Not so, however, if it determine by the act of the party himself : 
 as if tenant for years surrenders before severance, or does any thing 
 that amounts to a forfeiture ; in which case the emblements shall go 
 to the lessor, and not to the lessee, who hath determined his estate by 
 his own default (^). 
 
 If, however, lessor covenants that lessee for years shall have the 
 emblements which are growing at the end of the term, there the 
 property of the corn is well transferred to the lessee, though it be not 
 severed during the term (/>). 
 
 If tenant at will sows his land, and the landlord before the corn is 
 
 (a) a lil. Com. 123. (/^) IlilJ. (c) Cro. Eli/.. 460. (,/) a Bl. Com. 145. 
 
 («) I Bac. All. 511. (y; 2 lil. Cam. 14.'^. {v) lliid. (A; V.o. I, it. jj. n. 11.5,
 
 I 
 
 Sect. III.] Of Emblements. 229 
 
 ripe, or before it is reaped, put him out, yet the tenant shall have 
 the emblements, and free ingress, egress, and regress, to cut and 
 carry away the profits : and this for the same reason upon which all 
 the cases of emblements turn ; namely, the point of uncertainty : since 
 the tenant could not possibly know when his landlord would deter- 
 mine his will, and therefore could make no pi'ovision against it ; and 
 having sown the land, which is for the good of the public, upon 
 a reasonable presumption, the law will not suffer him to be a loser 
 by it [a). 
 
 So, if the estate of a tenant at will be determined either by his death 
 or by the act of the landlord, he or his executors may reap the corn 
 sown by him. — Wherefore the corn sown by a tenant at will (who 
 dies before harvest) and purchased by another person, cannot be dis- 
 trained by the landlord for rent due to him from a subsequent 
 tenant (/>). 
 
 But it is otherwise, and upon reason equally good, where the 
 tenant himself determines his will ; for in this case the landlord shall 
 have the profits of the land (r). 
 
 So in the case of entry of the lessor before sowing, the lessee at will 
 shall not have the costs of ploughing and manuring (d). 
 
 A. lets lands to B. for ninety-nine years determinable on his life, 
 with a proviso of re-entry if let to tillage without licence ; C. under- 
 tenant ploughs and sows in the life-time of B. who dies, no re-entry 
 being made •, the proviso was gone, for it could only operate during 
 the continuance of the lease ; and A. having never been in possession 
 by right of re-entry for the condition broken, can have no advantage 
 thereof; and he who ploughed and sowed the land, has, in law and 
 justice, a right to reap and take the emblements [e). 
 
 If a husband holds lands for life, in right of his wife, and sows the 
 land, and afterwards she dies before severance, he shall have the em- 
 blejuents [f). 
 
 So where the wife has an estate for years, life, or in fee, and the 
 husband sows the land and dies, his executors shall have the corn (^). 
 
 But if the husband and wife are joint-tenants, though the husband 
 sow the land with corn and die before it be ripe, the wife, and not 
 his executors, shall have the corn, she being the surviving joint- 
 tenant ((6), 
 
 If a widow is endowed with lands sown, she shall have the emble- 
 ments, and not the heir : and a tenant in dower may dispose of corn 
 sown on the ground ; or it may go to her executors, if she die before 
 severance (i). Indeed it is provided by the stat. of Merton^ 2 //. 3. 
 
 (a) Co. Lit. 55. a. a Bl. Com. 146. (,5) WiUes, 136. (0 Ibid. 
 
 {d) Co. Lit. s^. a. n. 4. W 3 Wils. 140. (/) 1 Nels. Abr. 701. 
 
 {g) Ibid. ^ox. (h) Co. Lit. jj. b. Cio. Eliz. 6i. (0 a Inst. 80, 81.
 
 230 Of Emblements, [Chap. IX. 
 
 c. 2. that a doweress may dispose by will of the growing corn, other- 
 wise it goes to her executor («). 
 
 But where lands are limited to a woman during life for her jointure, 
 she has the same rights with respect to estovers and emblements, and 
 is under the same restrictions respecting waste, (unless there is a 
 deficiency in her jointure,) as other tenants for life. A jointress is 
 not, however, entitled to the crop sown at the time of her husband's 
 death; because a jointure is not a continuance of the estate of the 
 husband, like dower : on the death of a jointress, therefore, her re- 
 presentatives are not entitled to emblements (b). 
 
 If tenant by statute-merchant sows the land, and before severance a 
 sudden and casual profit happens, by which he is satisfied, yet he 
 shall have the emblements (c). 
 
 Where lands sown are delivered in execution upon an extent, the 
 person to whom they are so delivered shall have the corn on the 
 ground (ci). 
 
 So, where judgment was given against a person, and then he 
 sowed the land, and brought a writ of error to reverse the judgment, 
 but it was affirmed ; it was adjudged that the recoveror should have 
 the corn [e). 
 
 If a man enter by title paramount, he shall have the emblements ; as 
 if a disseisor sow and the disseisee enter before severance {/). 
 
 The advantages also of emblements are particularly extended to the 
 parochial clergy by the stat. 28 //. 8. c. 11., which considers all per- 
 sons who are presented to any ecclesiastical benefice, or to any civil 
 oflice, as tenants for their own lives, unless the contrary be expressed 
 in the form of the donation. By this statute, if a parson sows his 
 glebe and dies, his executors shall have the corn ; and such parson 
 may by will dispose thereof, s. 6. (g). 
 
 A. grants to B. that he may sow A's. land, which is done accord- 
 ingly; yet A. shall have the emblements, because B. hath not an 
 interest [h). 
 
 If the lessee for a tenant for life be disseised, and the lessee of the 
 disseisor sow the land, and then the tenant for life dies, and he in 
 remainder enters, yet he shall not have tlic emblements, but the lessee 
 of the tenant for life ; for quicquid plontatur soloy solo credit (/'). 
 
 Where there is a right to emblements, ingress, egress, and regress 
 are allowed by law, in order to enter, cut, and carry them away 
 when the estate is determined [k). 
 
 Emblements are distinct from the real estate in the land, and sub- 
 
 (ii) I Iiibt. 55. h. 11. 3. {!>) 9 Viii. Abr. 374. I Kq. Cns. Abr. 221. Cruise's Dig. VII. 
 
 r. I. 8. 34, ZS^ 36. (0 Co. Lit. $$. b. {<!) 2 Leon. 54. {<■) 2 Uulst. 213. 
 
 (/) Co. Lit. 55. b. (<«) 2Bi.C0m. I2J. (/■) Co. Lit. 55. a. 11 i. {j) do. 
 
 Liiz. 463. (/) I In.t. 56.
 
 Sect. III.] Of Emblements, 231 
 
 ject to many, though not all, the Incidents attcndhig personal ch;sttels : 
 they are deviseable, and at the death of the owner, shall vest in his 
 executor, and not his heir : they are forfeitable by outlawry in a per- 
 sonal action; and by the stat. ii G. 2. c. 19. (though not by the 
 common law) they may be distrained for rent arrear [a). 
 
 But though emblements are assets in the hands of the executor, are 
 forfeitable upon outlawry, and distrainable for rent, they are not in 
 other respects considered as personal chattels, and particularly they 
 are not the object of larceny before they are severed from the 
 ground (b). 
 
 Of Gleaning. — It may perhaps be as well to introduce here a word 
 respecting gleaning or lesing. An idea very universally prevails among 
 the lower classes of the community that they have a right to glean, 
 that is, to take from off the land the corn that remains thereon after 
 the harvest has been gotten in ; than which notion nothing can be 
 more erroneous. By custom, indeed, such a right may possibly in 
 some particular places exist ; and the laudable kindness of tenants 
 generally induces them to permit the poor to collect the corn they 
 have left upon the land, and to appropriate it to their own use. As a 
 right, however, it has no more existence than a right to take the 
 tenant's furniture from out of his messuage, and the pillage in the one 
 case is as much felony as the plunder would be in the other : for the 
 act is not simply a trespass, but a felony; and the compiler well re- 
 members a conviction at the Old Bailey on an indictment found for 
 the exercise of this supposed right. The parties were tried before 
 Mr. Justice Rooke, (if he mistake not) about six years ago. Indeed, 
 it has been determined, after two solemn arguments, that no such 
 right exists at common law ; whatever may possibly be the case on 
 the ground of custom in particular places (c). 
 
 For though it is no larceny, but a bare trespass, to take corn or 
 grass growing, it is larceny to take them being severed from the free- 
 hold, whether by the owner or by the thief himself, if he sever them 
 at one time and then come again at another time and take them (J). 
 
 (a) 2 Bl. Com. 404. (h) Ibid. (c) i H. Bl. R. SS- 4 Burr. 1926. 
 
 (0 I Haw. P. C. c. 83. s. ai.
 
 C 232 ] 
 
 CHAPTER X. 
 
 Of the general Incidents to Leases (continued,) 
 
 Section I. Of implied Covenants and Agreements. 
 Section II. Of express Covenants and Agreernents. 
 
 Section I. Of implied Covenants and Agreements. 
 
 /"COVENANT, contract, and agreement, are often used as synony- 
 ^^ mous words, signifying an engagement entered into, by which 
 one person lays himself under an obligation to do something beneficial 
 to, or to abstain from an act which, if done, would be prejudicial to 
 another (a). 
 
 A covenant is either Implied or expressed, it subsists either in law 
 or in fact. 
 
 An implied covenant, or a covenant in law, in that which the law 
 intends and implies, though it be not expressed by words in the deed. 
 
 For quiet enjoyment. — Thus, when one makes a lease for years by 
 the words " demise and grant," without any express covenant for 
 quiet enjoyment; in this case, the law intends and makes such a 
 covenant on the part of the lessor, which is, that the lessee shall 
 quietly hold and enjoy the thing demised against all persons, at least, 
 having title under the lessor, and at least during the lessor's life, and 
 (as some think, i Inst. 384.) during the whole term {b) : and here- 
 upon an action of covenant may be brought against him In the rever- 
 sion ; so that if the heir that Is in by descent put out the termor of 
 his father, the termor may have this action against him. — If the party 
 ousting the covenantee has no title, the covenantee it Is said cannot, 
 where the covenant is created by law, bring an action of covenant 
 against the lessor (c). 
 
 But though such covenant In law is general against all persons that 
 have title during the term, and extends to the heir after the death of 
 the lessor, as against himself only, and shall charge the executors or 
 administrators for any disturbance In the life of the covenantor, yet 
 (it is said) it shall not charge them for any disturbance afterwards. 
 [But sec I Inst. 384.] Ho that sues, therefore, upon this covenant 
 must shew that he was molested or evicted by one that had an elder 
 title (d). 
 
 An implied covenant for quiet enjoyment, comprehends a covenant 
 
 (rt) Hji. Alii. lit. (jDvriiaiit. (i) Shf p. Toiicli. i6o. 
 
 (<) a Biuwiil. 161. do. Llii. ii-), (V) yiKj'. Touth. 167.
 
 Sect. I.] Of implied Covenants. 233 
 
 by implication that the lease shall be valid and not void or voidable ; 
 for of such there could of course be no enjoyment at all : and this 
 principle is the same as that which respects any conveyance ; for 
 where a man undertakes to convey, he undertakes to convey by a 
 good title [a). 
 
 To cultivate the Land. — A covenant is implied also, on the part of 
 the lessee that he will use the land demised to him in a husbandman- 
 like manner and not unnecessarily exhaust the soil by neglectful or 
 improper tillage : for the bare relation of landlord and tenant is a 
 sufficient consideration for the tenant's promise to manage a farm in 
 a husband-like manner (b). 
 
 It is likewise so notoriously the duty of the actual occupier to re- 
 pair the fences, and so little the duty of the landlord, that without 
 an agreement to that effect, the landlord may maintain an action 
 against his tenant for not so doing, upon the ground of the Injury 
 done to his inheritance (r). 
 
 To keep JWessiiagey ^c. in repair. — So, In case of a house or other 
 tenement, a covenant is implied that the tenant will keep it in repair : 
 a tenant for life therefore shall be obliged to keep the tenant's houses 
 on the estate in repair, even though he be such without impeach- 
 ment of waste : and such is the case even with respect to a tenant at 
 will ; for the tenant ought in justice to restore the premises in as 
 good a plight as they can be, consistent with such deterioration as is 
 unavoidable [d). 
 
 A mortgagee in possession need only keep the estate in necessary 
 repair {e). 
 
 A yearly tenant however is bound only to tenantable, and not to 
 lasting repairs. 
 
 Thus where an action was brought to recover damages for suffer- 
 ing the plaintiff's house to be out of repair. The case was that the 
 defendant had rented a house of the plaintiff as tenant at will at 31/. 
 per ann. which he had quitted : after the defendant had given up pos- 
 session, the house being found to be much out of repair, the plain- 
 tiff had an estimate made of the sum necessary to put It into com- 
 plete and tenantable repair, for which sum this action was brought. 
 But Lord Kenyoti said, it was not to be permitted to the plaintiff to 
 go for the damages so claimed. A tenant from year to year was 
 bound to commit no waste, and to make fair and tenantable repairs, 
 such as putting in windows or doors that have been broken by him, 
 so as to prevent waste and decay of the premises; but that in the 
 present case the plaintiff had claimed a sum for putting on a new 
 roof on an old worn-out house j this his Lordship thought the tenant 
 
 00 I H. Bl. 280. ilbid. 123. {b) 5 T. R. 573- (0 4 T. R. 319. 
 
 (<^) aAtk.383. (0 3 Atk.jiS.
 
 234 Of implied Covenants. [CI114). X. 
 
 not to be bound to do, and that the plaintiff had no right to re- 
 cover it (fl). 
 
 But strict tenant at will, it is said, is not bound to repair or sus- 
 tain houses, like tenant for years (b). 
 
 It has been held that if a man has an upper room in a house, an 
 action would lie against him to compel him to repair his roof (r ) j 
 and so where a man has a ground -room, that they over him might 
 have an action to compel him to keep up and maintain his founda- 
 tion : but this seems to be erroneous ; there is, indeed, a writ in Nat. 
 Brev. 127. to a mayor, to command him that has the lower rooms to 
 repair the foundation, and him that has a garret to repair the roof -, 
 but that was grounded on a custom [d). 
 
 Payment of Rent. — As in every contract, there must be a legal con- 
 sideration to make it valid, so where the relation of landlord and ten- 
 ant subsists, some quid pro quo must subsist also. Therefore, unless 
 the lease be granted in consideration of a fine or a sum in gross, an 
 implied contract is raised on the part of the tenant that he shall pay 
 an annual rent. 
 
 These implied covenants are said to be inherent, that is, such as 
 appertain especially to the land ; as that the thing itself shall be 
 quietly enjoyed, shall be kept in reparation, and shall not be aliened ; 
 or to pay rent, not to cut down timber trees, or to do waste j to 
 fence the coppices, when they be new cut and the like {e). 
 
 An implied covenant is in all cases controuled within the limits of 
 an express covenant; for expressum facit cessare taciturn [f). 
 
 Thus for example, with respect to the covenant for quiet enjoy- 
 ment i if a man leases for years by the words "I have demised, b'f." 
 and the lessor covenants that the lessee shall enjoy during the term 
 without eviction by the lessor, or any claiming under him (^), this 
 express covenant qualifies the generality of the covenant in law and 
 restrains it by the mutual consent of both parties, that it shall not 
 extend farther than the express covenant : and this is consonant to 
 the principle, that where there is an express promise, another pro- 
 mise cannot be implied (/j). 
 
 Caution, therefore, is to be used in introducing into a lease ex- 
 press covenants in certain cases ; as the evil intended to be guarded 
 against, may frequently be prevented or recompensed in a more 
 limited degree, by an express, than an implied covenant. 
 
 The distinction between implied covenants by operation of law, 
 and express covenants, is that express covenants, are to be taken 
 more strictly [i). 
 
 (.1) lEsp. R. 590. {h) 1 Chiisr's Dig. lit. IX. r. 14, 15. (c) 1 1 Mod. 8. 
 
 (,/) 6 Mod. .^14. (f) ;-)hip. Tuucli. 161. (y) 4 Co. 80. 1 Sauiul. 60. Cro. Eliz. 
 
 674. 1 Mod. 113. z Ld. Ri(ym. 14, i<;. (;,') Bac. Abr. tit. Cuvtnaiit. (B.) Cro. Eliz. 674. 
 (A; 7 '1'. R. iu4. (>) 3 Biur. 1639.
 
 Sect. II.] Of ei'press Covenants, 233 
 
 If a bond is for performance of covenants, it is forfeited by a 
 breach of a covenant in law ; as if the lessee be evicted out of the 
 premises demised (a). 
 
 Where the plaintiff paid money to the defendant, on the defend- 
 ant's promise to make him a lease of land, and before the lease made 
 the defendant was evicted, the plaintiff recovered the money in this 
 action, the consideration not having been performed (^). 
 
 Section II. Of ea^iiress Covenants. 
 
 Covenants — An express covenant is the agreement or consent of 
 two or more by deed in writing, sealed and delivered, whereby either 
 of the parties promises the other that something is done already, or 
 shall be done afterwards. He that makes the covenant is called the 
 covenantor, and he to whom it is made the covenantee (c). 
 
 The general principle is clear, that the landlord having the jus dis- 
 ponendi^ may annex whatever conditions he pleases to his grant, pro- 
 vided they be not illegal or unreasonable {d). 
 
 No particular technical words are requisite towards making a cove- 
 nant ; for any words, it seems, which shew the parties' concurrence 
 to the performance of a future act will sufhce for that purpose; as 
 " yielding and paying, l^cT {e). 
 
 Thus if lessee covenants to repair, " provided always and it is 
 agreed, that the lessor shall find great timber, y^-." this makes a 
 covenant on the part of the lessor to find great timber by the word 
 " agreed," and it shall not be a qualification of the covenant of the 
 lessee ; but without this word, it would have been only a qualifica- 
 tion of the covenant of the lessee {f). 
 
 Covenants are either real or personal (^). — Covenants real, or such 
 as are annexed to estates, shall descend to the heirs of the covenantee, 
 and he alone shall take advantage of them ; and such covenants are 
 said to run with the land, so that he that hath the one, is subject to 
 the other ; for which reason warranties were called real covenants. — 
 Covenants personal, are such whereof some person in particular shall 
 have the benefit, or whereby he shall be charged ; as when a man 
 covenants to do any personal thing, as to build, or repair a house, 
 \^c. or the like (/;). 
 
 In a lease of ground with liberty to make a watercourse, and erect 
 a mill, the lessee covenanted for himself, his executors, and assigns, 
 not to hire persons to work in the mill, who were settled in other 
 
 (.7) I Esp. N. P. a8i. 4 Co. So. (,i) Palm. 364. I Esp. N. P. 3. ViJe ante. C. II. S. II. 
 
 \c) Shep. Touch. i6o. {d) % T. R. 137. {e) I Burr. Zi)0. % Mod. 92. 
 
 (/) 13ac. Abr, tit. Covenant. (A.) & n. c. (^r) Ibid. (E. 2.) 
 
 {h) Shep. Touch. l6t.
 
 236 Of express Covenants. [Cliap. X. 
 
 parishes without a parish certificate : held tliat this covenant did not 
 run with the land, or bind the assignee of the lessee (a). 
 
 As to the construction of covenants, all contracts are to be taken 
 according to the intent of the parties expressed by their own words ; 
 and if there be any doubt in the sense of the words, such construc- 
 tion shall be made as is most strong against the covenantor ; lest by 
 the obscure wording of his contract, he should find means to evade 
 and elude it (Jb). 
 
 Under a lease for fourteen or seven years,' the lessee only has the 
 option of determining it at the end of the first seven years ; every 
 doubtful grant being construed in favour of the grantee (f). 
 
 So tenant by the curtesy, in tail after possibility of issue extinct, 
 in dower, for life, for years, by statute or elegit^ guardian, ^c. hold 
 their estates subject to a condition in law ; so that if either of them 
 alien his land in fee, or claim a greater estate in a court of record 
 than his own, he forfeits his estate, and he in remainder or reversion 
 may enter ; and if such tenant do waste, he in reversion shall recover 
 the place wasted (d). 
 
 Of Conditions. — A condition signifies some quality annexed to a real 
 estate by virtue of which it may be defeated, enlarged, or created 
 upon an uncertain event. Also qualities annexed to personal contracts 
 and agreements are frequently called conditions ; and these, as well as 
 covenants, must likewise be interpreted according to the real intention 
 of the parties, ^c. (e). 
 
 Conditions are either precedent or subsequent. Where a condition 
 must be performed before the estate can commence, it is called " a 
 condition precedent j" but where the efFect of the condition is either 
 to enlarge or defeat an estate already created, it is then called " a con- 
 dition subsequent" [f). 
 
 Conditions are most properly created by inserting the very word 
 " condition" or the words " on condition ;" but the word commonly 
 and as efFectually made use of is that of " provided ;" wherefore a 
 condition, and a proviso, are synonymous terms [g). 
 
 But if a proviso, or condition have dependence upon another clause 
 of the deed, or be tlie words of the lessee, to compel the lessor to do 
 something, then it is not a condition, but a covenant only ; as if there 
 be in the deed a covenant that the lessee shall scour the ditches, and 
 then these words follow, " provided that the lessor shall carry away 
 the earth" {J}). 
 
 If the words run thus : " provided always, and the lessee, i^c. doth 
 covenant, i^c. that neither he ncir his heirs shall do such an act;" this 
 is boih a condition and a covenant [i). 
 
 (n) 10 Ewt, 130. (i) Bac. Abr, tit. Covtnnnt. (1'.) («) 9 East, 15. 
 
 {J) Slir|i. 'I'inuli. I 25. {() Ihid. tit. Coiulitioiis. (/) Cruise's Dig. XII. tit. I. s. 6. 
 
 I liKst. 2iO.ii.2j7. a. 11. 1. {g) ^lirj-. 'rotnli. l6c. (/') Ibid. 122. (') U^iJ.
 
 Sect. II.] Of ej^press Covenants. 2S7 
 
 If a man make a lease for years by indenture " provided always and 
 it is covenanted and agreed between the parties, that the lessee shall 
 not alien ;" this is both a condition and a covenant ; for it was ad- 
 judged that this was a condition by force of the proviso, and a cove- 
 nant by force of the other words («). 
 
 If a man leases for years, rendering rent, and the lessee covenants 
 to repair, Iffc. and afterwards the lessor devises to the lessee for more 
 years, yielding the like rent, and under such covenants as were in the 
 first lease, yet this makes no condition ; for though after the first lease 
 is ended, the lessee shall not be bound by the covenants, yet the will 
 expressing that the lessee should have the lands, observing the first 
 covenants, it shall not be taken to be a condition by any intent to be 
 collected out of the will ; for covenants and conditions differ much (b). 
 
 With respect to what shall be deemed a condition, it is a rule in 
 provisoes, that where a proviso is that the lessee shall perform or not 
 perform a thing, and no penalty is annexed to it, that is a condition, 
 otherwise it would be void ; but if a penalty is annexed, it is a cove- 
 nant (r). 
 
 A condition may be annexed to an estate of inheritance, freehold, 
 or for years ; or to a grant of tithes by the clergy [d). 
 
 So, estates made by deed to infants, and feme coverts, upon condi- 
 tion, shall bind them, because the charge is on the land {/). 
 
 The heir, though not named, may take advantage of a condition 
 annexed to a real estate"(/') : and where the condition of an obligation 
 was to make a lease, or pay loo/. the obligee dying, though the elec- 
 tion was taken away, it was held that the executor should have the 
 I go/, agreeably to the rule in cases of heirs [g). 
 
 But a condition shall not be construed to extend to things of com- 
 mon right, as if the condition be that one shall enjoy such land im- 
 mediately upon the grantor's death ; though the executor take the em- 
 blements, the condition does not extend to it (h). 
 
 A lease for life on condition, being a freehold, cannot cease with- 
 out entry ; but if it be a lease for years, the lease is void ipso jacto on 
 breach of the condition, without any entry (;). 
 
 As to what shall be a suspension of a condition, if lessee for years 
 hath execution by elegit of a moiety of the rent and reversion against 
 the lessor, where the lease is upon condition, this is a suspension of all 
 the condition during the time of the extent ; and though but a moiety 
 of the rent is extended, yet the entire condition is suspended. So it 
 is if a stranger hath execution by elegit {k). 
 
 A condition may be contained in the same deed ; or Indorsed upon 
 the deed ; or may be contained in another deed executed the same 
 
 (a) Co. Lit. 203 b. {h) Bac. Abr. tit. Conditions. (G.) (c) Cro. Eliz. ^43. 
 
 {d) Com. Dig. tit. Conditions. (A. 7.) (f) Z Danv. 30. (/) i Ves. 47. 
 
 (^) I S;ilk. 172, (Zi) Com. Dig. tit. Conditions. (E.) (/) i Inst. 214. 
 
 '.h) Bac. Abr. tit. Conditions. (O. 3.)
 
 238 Of express Covenants, [Chap. X. 
 
 day. So a condition to defeat a deed may be annexed to the reserva- 
 tion of the rent, explaining the manner of payment («). 
 
 A proviso or condition differs also from a covenant in this, that a 
 proviso is in the words of, and binding upon both parties, whereas a 
 covenant is in the words of the covenantor only. 
 
 Under a power to tenant for life to lease for years, reserving the 
 usual covenants, ISjc. a lease made by him, containing a proviso, that 
 in case the premises were blown down, or burned, the lessor should 
 rebuild, otherwise the rent should cease, is void, the jury finding that 
 such covenant is unusual {h). 
 
 So, under a power to a tenant in possession to let all or any part of 
 the premises, so as the usual rents be reserved, a lease of tithes, which 
 had never been let before, was held void (r). 
 
 So, a covenant not to assign without licence, was held by Thtirloiv, 
 L. C. not to come within a contract to grant a lease with common 
 and usual covenants. " Common and usual" covenants, his Lordship 
 observed, must mean covenants incidental to the lease ; and that 
 though the covenant not to assign without licence might be a very 
 useful one where a brewer or vintner let a public-house (as was the 
 case here), that would not make it a common covenant {d). 
 
 Covenant for quiet e7ijoyment. — An express covenant, usual on the part 
 of the lessor, is for quiet enjoyment of the premises demised, or to 
 save harmless the lessee from all persons claiming title. 
 
 A covenant for quiet enjoyment implies, of course, that the lease 
 shall be a good and valid demise, as a bad lease would be a breach of 
 such covenant for the reasons assigned before. This being the case, 
 the old covenant, for farther assurance, becomes unnecessary, and has 
 therefore fallen into disuse (e). 
 
 Indeed, according to the ancient mode of conveyance, deeds were 
 confined to a very narrow compass. The words "grant and cnfcofF," 
 amount to a general warranty in law, and have the same force and 
 effect. The covenants therefore, which have been introduced in more 
 modern times, if they have any use besides that of swallowing a quan- 
 tity of parchment, are intended for the protection of the party con- 
 veying ; and are introduced for the purpose of gratifying the general 
 warranty, which the old common law implied (/). 
 
 If one make a lease of land to another, and covenant that he shall 
 quietly enjoy it without the let or molestation of any person whatso- 
 ever, or without the let of any person whatsoever claiming by or un- 
 der the lessor ; in both these cases, the covenant, it is said, shall be 
 taken to extend to such persons as have title, or claim some estate un- 
 der the lessor ; for if, in the first case, the lessee shall be disturbed by 
 any claim, entry, or otherwise by any person that hath no title ; or in 
 
 {a) Com. Diy. ut ante (A. 9.) {!<) i T. R. 705. W 3 T. U. 665. 
 
 (-/) 3 13. K. 63a. (<•) Slicii. Toutl). 170. (/) 2 Cos. h Pul. 26.
 
 Sect. II.] Of ea:pr ess Covenants, 239 
 
 the second case, by any person who shall claim under another and 
 hath title, or that shall claim under the lessor, this is held to be no 
 breach of the covenant. Sed quxre as to the first case ; for herein 
 some conceive a difference between a covenant in deed, and a cove- 
 nant in law^ ; and howsoever the latter is extended only to evictions 
 by title, yet that the covenant in deed shall be extended further ; 
 therefore that if A. make a lease to B. and covenant that B. shall 
 quietly enjoy it during the term without the interruption of any per- 
 son or persons, in such case, if a stranger, having no right, interrupt 
 B. he may have an action of covenant, as, when such a promise is by 
 word, an action on the case will lie upon it [a). 
 
 A covenant for quiet enjoyment does not extend to oblige the les- 
 sor to rebuild {b). 
 
 A covenant that the lessee shall quietly enjoy against all claiming, 
 or pretending to claim, a right in the premises, was held to extend to 
 all interruptions, be the claim legal or not, provided it appear that the 
 disturber do not claim under the lessee himself (f). 
 
 It seems indeed to have been at one time held, that if the lessor 
 undertook expressly that the lessee should enjoy during the term 
 <* quietly, peaceably, and without interruption," it would extend as a 
 covenant against all tortious ejectments whatsoever ; but this doctrine 
 is now overruled (d). 
 
 For, where a covenant was inserted in a conveyance of lands in 
 Amertcoy durnig the American war, that the grantor had a legal title," 
 and that the grantee might peaceably enjoy, ^c. without let, interrup- 
 tion, Isfc. of the grantor and his heirs, " and of and from all and 
 every other person or persons whomsoever," it was held not to be 
 broken by the States of America seizing the lands as forfeited for an 
 act done previous to the conveyance, notwithstanding the subsequent 
 acknowledgment of her independence by this country : for such a co- 
 venant does not extend to the acts of wrong doers, but only to per- 
 sons claiming title {e) ; and even a general warranty, which is con- 
 ceived in terms more general than the present covenant, has been re- 
 strained to lawful interruptions {f). 
 
 So, if a lease be made for a term of years by deed, so that the les- 
 sor is chargeable by writ of covenant, if a stranger who has no right, 
 oust that termor, yet he shall not have a writ of covenant against 
 his lessor j for a covenant for quiet enjoyment shall not be construed 
 to extend to a wrongful ejectment by a stranger, unless so expressed ; 
 because for this wrong, the lessee may have his remedy by action 
 against the stranger himself {g). 
 
 But if he to whom the right belongs oust the termor, then he shall 
 
 (a) Shep. Touch. i66. LofFt's R. 460. (i) Ambl. 620. (t) 10 Mod. 384. 
 
 I Com. R. 230. I T. R. 673. (d) i Esp. N. P. 273. Hob. ZS- {') 3 T. R. 584- 
 
 (/) Ibid. 587. (f) Ibid. n. a. aa H. 6. 5a. b. pi. a6. Cro. Eliz. 914. Cro. Jac. 425. 
 
 Bull. N. P. 161.
 
 240 Of es^press Covenants. [Chap. X. 
 
 have covenant against the lessor ; so if the lessee be ejected by the 
 lessor himself [a). 
 
 So, if the lessor covenants against the acts of a particular person 
 or particular persons, covenant will lie {b). 
 
 If a man covenant that he will not interrupt the covenantee in the 
 enjoyment of a close, the erection of a gate which intercepts it, is a 
 breach of the covenant, although he had a right to erect it (c). 
 
 If the lessor covenants with the lessee that he hath not done any 
 act to prejudice the lease, but that the lessee shall enjoy it " against 
 all persons ;" in this case, these words " against all persons" shall re- 
 fer to the first, and be limited and restrained to any acts done by him, 
 and no breach shall be allowed but in such an act [d). 
 
 In a covenant that the lessee shall quietly enjoy, Ifjc. with an ex- 
 ception of the king, his heirs, and successors, an interruption by the 
 king's patentee is a breach of the covenant ; for such patentee is not 
 excepted {e). 
 
 If a lessee holds his estate on condition of paying an annuity, non- 
 payment is a breach of covenant for quiet enjoyment, although no de- 
 mand of it was made, and the lessee himself might have paid it {f^. 
 
 But if a covenant be to save the lessee harmless from a rent-charge, 
 if the lessee pay it without compulsion, he pays it in his own 
 wrong {g). 
 
 The lessor after a demise of certain premises with a portion of an 
 adjoining yard, covenanted that the lessee should hav". " the use of 
 the pump in the yard jointly with himself, whilst the same should 
 remain there, paying half the expences of repair." The words, 
 « ivhi/sty &c." reserve to the lessor a power of removing the pump at 
 his pleasure, and it is no breach of the covenant, though he xemove 
 it without reasonable cause, and in order to injure the lessee j^but 
 without those words, it would have been a breach of covenant to have 
 removed the pump (^). 
 
 In cases wherein the lease being avoided, becomes in fact a nullity, 
 a covenant for quiet enjoyment is completely broken. 
 
 For payment of Rent . — A covenant for the payment of the rent is 
 also generally inserted in the lease. 
 
 The tenant's liability to pay rent subsists during the continuance of 
 the lease, notwithstanding he may become a bankrupt, and be deprived 
 of all his property (;'). 
 
 So, where the lessee covenants generally to pay rent, he is bound to 
 pay it though the house be burned down (k). 
 
 So, a lessee who covenants to pay rent and to repair, with express 
 exception of casualties by fire, or tempest, is liable upon the covenant 
 
 (</) 3 '1\ R.387. n. a. Cro. Elir. 213. (i) Cro. Eliz. 213. 1 Str. 400. 
 
 (0 8Mod.3i8. (rf) Shep. Touch. 167. (,) Cro. Eli/. 518. 
 
 (y)ILid.688. (^r) 3 S.ilk. 108. (/.)7E«t,u6. (;) 7 '1'. R.616. ST. R. 6i. 
 
 (/) Z Str. 763. I l.il.R.iym. 1477. $. r.
 
 Sect. II.] Of express Covenants. 241 
 
 for rent though the premises are burned down, and not rebuilt by the 
 lessor after notice ; for whatever was the default of the lessor in not 
 repairing, and though it is a hard case, yet the lessee must at all events 
 perform his covenant, by which he was expressly bound to pay rent 
 during the term (a). 
 
 The rule is, that when the law creates a duty, and the party is dis- 
 abled to perform it without any default in him, and he has no remedy 
 over, the law will excuse him : but when the party by his own con- 
 tract creates a duty or charge upon himself, he is bound to make it 
 good if he may, notwithstanding any accident by inevitable necessity ; 
 because he might have provided against it by his contract [b). 
 
 Where plaintiff was lessee of a colliery, at the rate of so much per 
 wey, and the colliery became not worth working, upon the plaintiff 
 offering to pay for all the coal that could be got, he was relieved by 
 the Court of Chancery against the future rent, and the covenant in the 
 lease to work the colliery [c). 
 
 Of forehand Rents or Fines. — Another species of rent occurs, pay- 
 ment of which is generally stipulated by a covenant in the lease : 
 and this is sometimes called a fore-hand rent, and sometimes a fore- 
 gift or income, but more commonly a fine, which is a premium given 
 by the lessee on the renewal of his lease, and has been considered as 
 an improved rent (d). 
 
 In the case of renewal of a lease, by an ecclesiastical corporation, 
 though a dean and chapter are reasonable in the fines they demand, if 
 an accident delays the lease, which has not happened from their fault 
 or that of the tenant, yet if it is not completed till a new member 
 comes in, he shall have his proportion {e). 
 
 l)Lmine Poena. — A farther security for the payment of rent is some- 
 times agreed upon, by the insertion of a covenant by the terms of 
 which the lessee forfeits a certain sum upon non-payment of such 
 rent. This nomine poena^ as it is called, is incident to the rent, and 
 shall descend to the heir. If an annual rent, therefore, be devised, 
 the nomine poena passes as incident thereto and the grantee may have 
 an action of debt for the arrearages thereof {f^. 
 
 By accepting the rent, however, the party it should seem waives the 
 penalty (^). 
 
 Though forfeiture is mentioned to be nomine poena y or for not paying 
 a collateral sum, it is no nomine poena if it be not of a rent. 
 
 A penalty of a similar kind is also inserted sometimes in case the 
 lessee dig for bricks, or lessen the quantity or value of the soil by 
 similar means. But a covenant of this nature (unless the penalty be 
 sufficiently great) is perhaps less expedient than the implied one, or 
 
 (a) I T. R. 310. 3 Burr. 1640. 6 T. R. 488. (*) 6 T. R. 751. (<) a Br, R. 31 r. 
 \d) I T. R. 486. 3 T. R. 462. {f) 3 Atk. 473. (/) Co. Lit. 61 b. Cro. F.lir. 895. 
 
 LutW. II56. (cr) Cowp. 147. 
 
 R
 
 242 ()/' e7'pjrss Corenfmtf!. [Cliap. X. 
 
 an express one to use the land in an husband-like manner, or not to 
 dig, isfc. for a ncmme pcen£ in leases to prevent the tenant from plow- 
 ing {e:<. gr.) is the stated damages («) ; so that damages, ^c. could not 
 be recovered beyond the amount of the penalty in the one case, vi^here- 
 as in the other cases, the landlord would have a prospect of being re- 
 compensed to the extent of the injury done (h). 
 
 If there be a nowine pcen^ given to the lessor for non-payment, the 
 lessor must demand the rent before he can be entitled to the penalty ; 
 or if th.e clause be, that if the rent were behind, the estate of the 
 lessee should cease and be void ; in these cases there must be an ac- 
 tual demand made ; because the presumption is, that the lessee is at- 
 tendant on the land to save his penalty and preserve his estate, and 
 therefore shall not be punished without a wilful default, and that can- 
 not be made to appear without a demand be proved, and that it was 
 not answered ; and such demand must be made at the day prefixed for 
 the payment, and alleged expressly to have been made in the pleading, 
 [See z\so post " Condition to re-enter on non-payment of rent."] (c). 
 
 Bond for perfornia7ice of Covenants. — If a m.an covenants to enter 
 into a bond to the lessee for the enjoyment of certain lands demised, 
 and does not express what the sum shall be, he shall be bound in such 
 a sum as is equal to the value of the land (J). 
 
 A bond for the performance of covenants or agreements has been 
 held to be only a security (under stat. S Isf g W. 3. c. 1 1.) to the ex- 
 tent of the penalty [e): Yet, it has also been held that the penalty is 
 merely a security, and that where it is not suiBcient, the plaintiff may 
 recover damages as well as the penalty ; and that nothing can prove 
 the principle stronger than the constant practice, where an action is 
 brought on a bond, of giving damages {f). 
 
 A bond for non-performance of covenants is forfeited by a breach 
 of a covenant in law ; as if the lessee be evicted out of the premises 
 demised [g). 
 
 Covenant to pay Taxes. — With respect to taxes, the tenant commonly 
 covenants to pay all public impositions, except the land-tax. 
 
 When one covenants with another that he shall have lands dis- 
 charged of all rents, the covenantee ought to be discharged of a quit- 
 rent (/;). 
 
 So, a grantee of a fee-farm-rent, " without any deduction, defal- 
 cation, or abatement whatsoever," is entitled to the full rent without 
 deducting the land-tax (/'). 
 
 So, if a tenant covenant to pay a rent without deducting taxes, 
 a statute authorizing the tenants to deduct, will not repeal the cove- 
 nant (/•). 
 
 (o) 3 Atk. ^r)G. {If) Doug. 49, 50. (<,) Bac. Alir. tit. Conditions. (0. 2.) Vide post, 
 y) J Co. 78. :i. (') Doug. 49, .50. (/) a T. R. 389. (^0 4 Co. 80. a R^s. 
 (A) 1 Com. R. 180. (/') Doug. 624. (-f) ^ J.d.Raym. 340.
 
 Hect II.] Of e.vpress Covenant.^. 24,3 
 
 A covenant to pay taxes generally, includes paiTmmentary taxes, 
 and, as a consequence, the land-tax : for when " taxes" are generally 
 spoken of, if the subject-matter will bear it, they shall be intended 
 parliamentary taxes given by the crown [a). 
 
 So, if a lea'se be made for years, rendering rent free and clear from 
 all manner of taxes, charges and impositions whatsoever, the lessee is 
 bound to pay the whole rent without any manner of deduction for any 
 old or new tax, charge or imposition whatsoever [b). 
 
 If a tenant covenant to pay " all taxes," this binds him to the pay- 
 ment of such taxes only as were in being when the lease was made, 
 and not to taxes or charges afterwards imposed (c). 
 
 So, a covenant to discharge from taxes extends to subsequent taxes 
 of the same nature, but not to those of a different nature (<;/). 
 
 A covenant to pay taxes on the land does not extend to the rates to 
 church and poor, for they are personal charges (<?). 
 
 Covenants relative to this subject are generally inserted in leases,, 
 and are authorized by the land-tax acts, which provide " that nothing 
 " therein contained shall be construed to alter, change, determine, or 
 " make void any contracts, covenants or agreements whatsoever, be- 
 *' tween landlord and tenant, or any other persons, touching the pay- 
 *< ment of taxes and assessments." 
 
 A distinct covenant in a lease whereby the tenant bound himself to 
 pay the property tax and all other taxes imposed on the premises or on 
 the landlord in respect thereof: though void and illegal by the statute 
 46 Geo. 3. c. 6^. s. 115. will not avoid a separate covenaiU in the 
 lease for payment of rent clear of all parliamentary taxes or generally j 
 for such general words will be understood of such taxes as the tenant 
 might lawfully engage to defray [f). 
 
 Under a covenant by a tenant for the payment of 80/. yearly rent, 
 all taxes thereon being to him allowed, and also that he would pay all 
 further or additional rates on the premises, or on any additional build- 
 ings or improvements made by him ; and a covenant by the landlord to 
 pay all rates on the premises, or on the tenant in respect of the said 
 yearly rent of 80/., except such further or additional taxes as may be 
 assessed on the premises ; the tenant is bound to defray all increase 
 of the old, as well as any new rates, beyond the proportion at whicl% 
 the premises were rated at the time of the lease, which was 20/. in 
 respect of the 80/. rent [g). 
 
 Where land was mortgaged to secure an annual payment of 20/. to 
 a widow, in satisfaction of her dower, this annual payment being 
 secured out of land ought to answer taxes as the land does ; but if the 
 tenant in the payment of the annuity to the widow omits to deduct 
 
 (a) Doug. 614, 615. iz Mod. 5S- 168. II Mod. 238. (1) Eac. Abr. tit. Covenant. (F.) 
 
 Carth. 135. Doug. 624. {c) i Vent. 233. {d) i Salk. 198. 3 T. R. 641. 
 
 {/) 8 Mod. 314. (/) ir F-ast, 165. (^) 16 Ea.r, 29. 
 
 R2
 
 244 Of express Covenants. [Chap. X. 
 
 for taxes, he shall not make her refund in equity, [but it may be 
 recovered at law in an action of assumpsiit being money paid to her 
 use, ^c] (fl). 
 
 Covenant to cultivate the Land. — In husbandry leases, it is usual to 
 insert a special covenant, as to the mode of cultivation ; for without 
 such a covenant, the lessee would be left to his choice as to the treat- 
 ment of the land ; provided he breaks not the Implied covenant to 
 treat it in a husbandman-like manner, 
 
 Respecting a covenant to use the land in an husbandman-like 
 manner and to deliver it up in like condition, it was held to be matter 
 of law to determine what was using the land in an husbandman-like 
 manner, and Bullery J. gave it as his opinion, that under such a cove- 
 nant the tenant ought to use on the land all the manure made there, 
 except that when his time was out, he might carry away such corn 
 and straw as had not been used there, and was not obliged to bring 
 back the manure arising from it [b). jThis is a covenant which we 
 conceive would be governed in its construction by the mode in which 
 the land demised had been usually cultivated, by the nature of the 
 soil, and by the custom of the country.] 
 
 Indeed, in a recent case, it was observed by Lord Ellenhoroughy that 
 evidence that an estate had been managed according to the custom of 
 the country, would be always a medium of proof that it had been 
 treated in a good and husbandman-like manner (c). 
 
 Lessee covenants to leave sufficient compost on the soil of the land- 
 lord at the end of the term, he the lessee having the yard, barn, and 
 a room to lodge in and dress diet. This was holden to be a mutual 
 covenant and not a condition. It differs from a case where the tenant 
 covenants to repair, if the lessor finds sufficient timber ; for there the 
 proviso restrains the covenant : but in this case, said Lord Mansfieldy 
 there is not the least foundation for such construction {d). 
 
 To repair and deliver up in good condition^ l^c. — As to an express 
 covenant to repair, if a lessee covenants to keep a house in repair, and 
 leave it in as good plight as it was at the time of making the lease [e) ; 
 in this case, the ordinary and natural tlecay is no breach of the cove- 
 nant, but the lessor is bound to do his best to keep it in the same 
 plight, and therefore should keep it covered (y"). 
 
 An agreement by the tenant to leave a farm as he found it, is an 
 agreement to leave it in tenantable repair ; and will maintain a decla- 
 ration so laid(^). 
 
 A covenant in a lease to deliver up at the end of the term, all the 
 trees standing in an orchard at the time of the demise, " reasonable 
 use and wear only excepted," is not broken by removing trees de- 
 
 {a) 3 P. Wms. 128. n. (/.) I i:;p. N. P. 279- (<;) 4 Kast's R. 154. /.«./. C. XV. s. i. 
 
 (</) I.ofn'jR 57. (<•) I'iiz. Alir. lit. Covenant, fol. 4. (/) £/ W</. a Ksp. R. 590. on/*. 
 
 ig) 2 151. Urp. X42. rt v,H. V. N. H. 145. K./pj/. C. XV. s. I.
 
 Sect. II. J Of ex'i^ress Covenants. 24v> 
 
 cayed and past bearing, from a part of the orchard which was too 
 crowded {a). 
 
 A general covenant to repair, and to deUver up in repair, extends, 
 it seems, to all buildings erected during the term {b). 
 
 Therefore where a lease was made of three messuages for forty-one 
 years, in which the lessee covenanted " to pull them down and erect 
 " three others in their place, and also to leave the said premises and 
 ** houses thereafter to be erected at the end of the term in good 
 ** repair ;" and afterwards the lessee pulls down the three houses and 
 builds five ; he must leave them all in good repair at the end of the 
 term : for though in the first covenant he is bound only to repair the 
 messuages agreed to be erected, yet by the last covenant he is obliged 
 to leave in good repair the houses thereafter to be erected indefinitely, 
 which extends to all houses that shall be built upon the premises dur- 
 ing the term [c). 
 
 So, if a man takes a lease of a house and land, and covenants to 
 leave the demised premises in good repair at the end of the term, and 
 he erects a messuage upon part of the land, besides what was before ; 
 he must keep, or leave this in good repair also {d). 
 
 But in a building and repairing lease, a covenant *' to leave the 
 *' demised premises, with all new erections, well repaired," was con- 
 strued to extend to the new erections only •, a sum of money being 
 agreed to be laid out in new erections and rebuilding, and the cove- 
 nant " to keep in repair" extending only to new erections [e). 
 
 Where in a lease with a clause of re-entry, there is a general cove- 
 nant on the part of the tenant to keep the premises in repair ; and it 
 is further stipulated by an independent covenant, that the tenant 
 within three months after notice, shall repair all defects specified in 
 the notice ; the landlord after serving him with a notice, may, within 
 the three months, bring an ejectment against him, for a breach of the 
 general covenant to repair {/)' 
 
 A court of equity cannot decree a specific performance of a cove- 
 nant to repair ; and where an ejectment is brought by a landlord for 
 breach of a covenant to repair, it would seem that equity cannot 
 relieve (g). 
 
 Accidental Fire. — A lessee of a house, who covenants generally to 
 repair, is bound to rebuild it, if it be burned by accidental fire : so, if 
 the premises be consumed by lightning or the King's enemies, he is 
 still liable {h). 
 
 If, after the expiration of a written lease, containing a covenant 
 
 ^'- fay * Campb. 449. {b) 1 Esp. N. P. 277. (<:) Bac. Abr. tit. Covenant. (F.) 
 
 {d) Ibid. {e) I Burr. 290, 291. (/) 2 Campb. 520. {g) 16 Ves. 
 
 Juti. 402. {b) 2 Com. Rep. 627. 6 T. R. 650. Dyer, 33. • 2 Show. 401. 3 Ves. 
 
 Jun. 34. Co. Lit. 37. 1, n. i.
 
 246 Of express Covenants. [Cliap. X. 
 
 by tlic tenant to keep the premises in repair, he verbaily agrees to hold 
 over, paying an additional rent, (nothing more being expressed be- 
 tvv^een the parties respecting the terms of the new tenancy,) he is 
 presumed to hold under the covenants of the former lease, as far as 
 they are applicable to his new situation; and if the premises are 
 afterwards burned down by accidental fire, he is bound to rebuild 
 them {a). 
 
 If a lease contains a covenant by the tenant to keep the premises in 
 repair, and a covenant to insure them in a specific sum against fire, 
 on their being burnt down, his liability on the former covenant is not 
 limited to the amount of the sum to be insured under the latter [b). 
 
 Touching the progress of the law as to the accidental burning of 
 houses, so far as regards landlord and tenant : at common law lessees 
 were not answerable to landlords for accidental or negligent burning ; 
 then came the statute of Gloucester, which by making tenants for life 
 and years liable to waste without any exception, consequently render- 
 ed them answerable for destruction by fire: thus stood the law in 
 Lord Cokes time. 
 
 But now by the statute 6 Anney r. 31. the antient law is restored, 
 and the distinction introduced by the statute of Gloucester between 
 tenants at will and other lessees is taken away : for by the 6th section 
 of that statute it is enacted. That no action, suit, or process whatso- 
 ever shall be had, maintained, or prosecute J against any person in 
 whose house or chamber any fire shall accidentally begin, or any 
 recompence be made by such person for any damage suffered or 
 occasioned thereby : and if any action shall be brought, the defendant 
 may plead the general issue and give the Act in evidence ; and in 
 case the plaintiff become nonsuit, or discontinue his action or suit, or 
 if a verdict pass against him, the defendant shall recover treble costs. 
 Section 7. provides. That nothing in the Act contained shall extend 
 to defeat or make void any contract or agreement between landlord 
 and tenant. 
 
 An exception of accidents by fire is now in many cases [c] intro- 
 duced into leases to protect the lessee, who would (as we have seen) 
 be liable to rebuild under his covenant to repair ; and where (r/) lessee 
 of a house and wharf covenanted to repair, accidents by fire excepted ; 
 the house was burned down, and the lessor having insured received 
 the insurance money, but neglected to rebuild, and brought an action 
 at law for the rent ; a bill for an injunction till the house was rebuilt 
 was held proper. 
 
 Jiut though such exception will protect the lessee from his cove- 
 nant to repair, yet he is liable (as we have also seen) to payment under 
 a covenant to pay rent, though the premises be burnt down and not 
 
 (u) 4 Camji. 27J. {!>) ]h\i. {t) 6 T. R, 6^1, (/) Anibl. 6iO,
 
 Sect. 11.] Of express Covenants. 247 
 
 rebuilt by the lessor, by which he is deprived of all use aud enjoy- 
 incnt of them {a). 
 
 There is no equity in favour of a lessee of a house, liable to repair, 
 U'ith the exception of damage by fire, for an injunction against an 
 action for payment of i^ent upon th,e destruclion of the house by 
 fire {b). 
 
 When there is a covenant to repair on the part of the lessee, if he 
 pull down houses, no action will lie against him till the end of the 
 term, for before that period he may repair them. But if he cut down 
 timber or trees, covenant lies immediately, for such cannot be.replaccd 
 in the same plight at the end of the term [c). 
 
 If the covenant be, "it is agreed that the lessee shall keep the house 
 demised in good repair, the lessor putting it in good repair," covenant 
 lies against the lessor on these words, if he do not put it in repair [d). 
 
 It has been held, that if the lessor covenant to repair during the 
 term, if he will not do it, the lessee may repair and pay himself by 
 way of retainer [e) ; but Holty C. J. doubted of this, unless there was 
 a covenant to deduct the expense of the repairs from the rent: and 
 though cases occur in the books, wherein it has been thought by some 
 of the Judges that a lessee might expend part of the rent in repairs 
 of the premises if they required repair, and might set off such ex- 
 penditure in an action either of debt or covenant for rent ; yet such 
 an opinion is erroneous, for the lessor and lessee have their respective 
 rem.edies on the several covenants contained in the lease ; and the 
 maxim of law " so to judge of contracts as to prevent a multiplicity 
 of suits," does not apply (^f). 
 
 So that the point seems now to be settled ; for upon a plea of //// 
 debet in an action of debt for rent, the defendant cannot give in evi- 
 dence disbursements for necessary repairs, for he might have had co- 
 venant against him [g). 
 
 Where notice of pulling down and rebuilding a party-wall was 
 given under the Building Act 14 G. 3. c. 7, 8. and the tenant of the 
 adjoining premises, who was under covenant to repair, fmding it ne- 
 cessary in consequence to shore up his house, and to pull down and 
 replace the wainscot and partitions of it, instead of leaving such ex- 
 penses to be incurred and paid by the owner of the house, giving no- 
 tice in the manner prescribed by the Act, employed workmen of his 
 own to do the necessary works and paid them for the same : held, that 
 he could not recover over against his landlord such expenses incurred 
 by his own orders, and paid for by him in the first instance, the land- 
 lord being made to reimburse his tenant only in those cases, where mo- 
 
 (-») I T. R. 310. a;;/^', p. 321. (^) 18 Ves. 115. (0- F. N. B. 145.K. 
 
 (rf) I Esp. N. P. 7,^%. ((f) I Leon. 237. Cro. Eliz. iz%. i Ld. Rayno. 4*0. 9 Mod. 60. 
 
 (/x T. R. 446. ii) Bull. N. P. 176.
 
 ^48 Of express Covenants. [Cliaj). X. 
 
 ney has been paid by the tenant to the owner of the adjoining house, 
 for works done by him (a). 
 
 A covenant to repair is a covenant that must run with the land, for 
 it affects the estate of the term, and the reversion in the hands of any 
 person that has it [b). 
 
 Covenant to reside on the Premises. — A covenant in a lease that the 
 lessee, his executors and administrators, shall constantly " reside upon 
 the demised premises" during the demise, is binding on the assignee 
 of the lessee, though he be not named. Indeed, the ist and 6th re- 
 solutions in Spencer's case are directly in point : which resolutions arc 
 I St. That when the covenant extends to a thing in esse^ parcel of the 
 demise, the thing to be done by force of the covenant is quodam modo 
 annexed and appurtenant to the thing demised and shall go with the 
 land, and shall bind the assignee, although he be not bound by ex- 
 press words : 6th. That if lessee for years covenants to repair the 
 houses during the term, it shall bind all others as a thing which is 
 appurtenant, and goeth with the land, in whose hands soever the 
 term shall come, as well those who came to it by act of law, as by the 
 act of the party ; for all is one, having regard to the lessee. And if 
 the law should not be such, great prejudice might accrue to him; and 
 reason requires that they who shall have the benefit of such cove- 
 nant when the lessor makes it with the lessee, should on the other 
 side be bound by the like covenant, when the lessee makes it with the 
 lessor [c). 
 
 So where J. gave by will his tenant-right, which he held by lease, 
 to B. but not to dispose of, nor sell it ; and if he refused <' to dwell 
 there or keep it in his own possession," then that C. should have his 
 << tenant-right of the farm." B. having borrowed money, left the 
 title-deeds with his creditor as a security, and confessed a judgment 
 to secure the money ; and having also given a judgment to another 
 creditor who issued an execution against him, the sheriff sold the 
 lease to the creditor with whom the deeds were deposited, he paying 
 the debt of the plaintiff in the execution : and B. having left the pre- 
 mises and ceased to dwell there on the day of the execution, before 
 the sheriff entered : it was holden that C. the remainder-man was en- 
 titled to enter, for that the acts of B. amounted to a voluntary depart- 
 ing with the estate {d). 
 
 Not to permit particular Trades to be carried on. — In leases of tene- 
 ments, especially in towns, a covenant is frequently inserted to 
 restrain the lessee from carrying on, or assigning the houses to per- 
 sons carrying on obnoxious trades, and also from having or per- 
 mitting any sale of furniture in the house : a precaution which bc- 
 
 (-; 10 Lait, zi7- (i) 1 .S.-.lk.3i7. (0 ill. Bl. ijj. 
 
 {d) i 1 . R. 4cJi. ,:, tide 8 1'. R. jco. pott.
 
 Sect. II.] Of e:ci)resii Covenants. '249 
 
 comes very necessary, not merely from the injury which may 
 otherwise be done to the premises, but hkewise from the respectability 
 being lessened, and the good-will of them being thereby dimi- 
 nished (a). 
 
 If the lessee of a house covenants not to lease the shop, yard, or 
 other thing belonging to the house, to one who sells coals, nor that 
 he himself will sell coals there, and afterwards he leases all the house 
 to one who sells coals, he has broken the condition [b). 
 
 Where the lessee of a house and garden for a term of years, cove- 
 nanted not to use or exercise any trade or business whatever ; and 
 afterwards assigned the lease to a schoolmaster, who carried on his 
 business in the house ; the assignment was held to be a breach of the 
 covenant (f). 
 
 Schedule of the Goods. — Li case of the lease of a house, together 
 with the goods, it is usual (as we have before mentioned) to make a 
 schedule thereof and affix it to the lease, and to have a covenant from 
 the lessee to re-deliver them at the end of the term ; for without such 
 covenant the lessor can have no remedy but trover or detinue for 
 them after the lease is ended : for as the law does not create any co- 
 venant upon such personal things, an express covenant becomes neces- 
 sary [d). 
 
 To surrender the Land for the purpose of Buildiug. — Where a lease 
 contained a covenant, that if the lessor should be desirous during the 
 term, to take all or any part of the land for building thereon, it should 
 be lawful for her to come into and enter upon all or any part, to make 
 such buildings as she should think proper, and to do all necessary acts 
 without interruption by the lessee, provided she gave six months' no- 
 tice of such intention, it was held that the lessor having agreed ivith a 
 third person to the terms of a building contract, might give six months* 
 notice of her intention to take the whole land for building (<?), 
 
 Covenant not to assign. — A covenant not to assign, and a proviso of 
 re entry in case the lessee do assign, are generally contained in leases. 
 The landlord relies perhaps on the tenant's honesty ; or he approves 
 of his skill in farming, and thinks that he will take more care of the 
 farm than another ; and therefore he has a right to guard against the 
 event of the estate's falling into the hands of any other person, who 
 may not manage it so well as the original tenant : indeed it is but 
 reasonable that a landlord should exercise his judgment with respect 
 to the person to whom he trusts the management of his estate ; a co- 
 venant, therefore, not to assign is legal, and covenants to that effect 
 are frequently inserted in leases [f). 
 
 But under an agreement for a lease the lessor is not without express 
 
 (a) a T. R. 141. {h) Bac. Abr. tit. Condition. fO.) (c) i Maul, and Selw. 95. 
 
 (rf) Bac. Abr. tit. Covenant. (B.) unit 142, 3. (?) % M, & S. 541. (/) a T. R. 138.
 
 250 Of cd'press Covenants. [[Chap. X, 
 
 stipulatioti entitleil to a covenant restraining alienation without li- 
 cense; as a proper and usual covenant [a). 
 
 The power of assignment is incident to the estate of a lessee with- 
 out the word «* assigns" unless expressly restrained; and such restraints 
 on alienation are construed with jealousy {b). 
 
 If a lessee for years covenant, that if he, his executors, or assigns 
 alien, it shall be lawful for the lessor to re-enter : it seems this is a 
 good condition, and not a covenant only; and the lessor may take it 
 as either a covenant or a condition, but not as both (<r). 
 
 A clause in the lease in these words, Provided always and it is fur- 
 ther covenanted, that the lessee shall not assign his term to any other, 
 except to the lessor, paying as much as another, and that if the lessor 
 will not have it, then the lessee may alien it to none except his mo- 
 ther or his son, was held 16 be a good condition to defeat the estate, 
 for " provided always" implies a condition, if there be not words sub- 
 sequent which may peradventure change it into a covenant ; as where 
 there is another penalty annexed to it for n on-performancc {d). 
 
 If a lease contain a condition that the lessee shall not assign with- 
 out license, and the lessor, after notice of the assignment without 
 license, accept of rent from the assignee, he dispenses with the 
 condition (e). 
 
 For it is to be observed, t))at where the le&6«^ is ipso facto void by 
 the condition, no acceptance of rent after can make it have a con- 
 tinuance [f) ; otherwise it is of a lease voidable by entry •, because 
 the acceptance of rent cannot make a new lease and the old one was 
 determined ; but the acceptance of rent in the latter case is a suflicicnt 
 declaration that it is the lessor's will to continue the lease, for he is not 
 entitled to the rent but by the lease [g). But the acceptance of i-cnt 
 after a condition broken, without notice of the breach, is not a conti- 
 nuancy of the estate ; except the condition be of such a nature as to 
 be equally within the conusance of botin lessor and lessee (/;•). 
 
 If a man lease a house and land, upon condition that the lessee 
 shall not parcel out the land, nor any part thereof from the house, 
 and afterwards the lessee leases the house and part of the land to one, 
 and leases the residue of the land to another ; this is a breach of the 
 condition ; for by the word " parcelling" is intended a division or 
 separation of the land from the house : it was therefore adjudged that 
 the first grant was a breach of the condition, because every division 
 and severance of the house and land is within the words antl intent of 
 the condition (/). But if the lessor afterwards accept of rent, it will 
 
 (a) 15 Vc^. J. 252. {b) 15 V.-s. 264 5. (i.) Shcp. 'loucll. 12,',. and n. 2. 
 
 (</J Cm. Kliz. 242. (<) Cro. Cir. Jir. Cro. Wiz. 572. 2 T. U. 425. 
 
 (/) Co. J .itt. J15. n. VVillc., x(,<). (j^) Dong. 50. Cowp.482. (/j) Cro. tliz. Jj3. 
 
 I r. R. <|2j. (/_) Ba.. Al<i. til. Cc'ii(Jitioni. (O.)
 
 Sect. 11.1 Of e^'press Covenants, 251 
 
 bar his entry for the condition broken. For where a lease for years 
 was. made, upon condition to be. void if the lessee assigned oyer the 
 term; he afterwards made an assignment, and the lessor, knowing 
 it, accepted the rent: adjudged, that this would not make the lease 
 good, because it was absolutely void before the acceptance [a). 
 
 Where the covenant was not to assign the whole or any part of the 
 lands demised without the lessor's consent, and the lessor entered 
 into part himself, and then the lessee assigned j this was held to be a 
 breach of the covenant, notwithstanding the lessor's entry (^). 
 
 If the lessee reserves the rent to himself on granting over, it is an 
 under-lease and not an assignment, though he parts with the whole 
 term ; for what cannot be supported as an assignment, sli^ll be good 
 as an under-lease against the party granting it (c). 
 
 So where the covenant was '< That the lessee should not assign 
 ** over his term without the lessor's consent first had in writing," 
 and the lessee devised the term without any such consent obtained ; 
 this was held not to be such an assignment as was a breach of the 
 covenant (d). 
 
 But whether it would be so held at this day, may well be 
 doubted [e). 
 
 If a lessee for years covenant not to alien without licence of the 
 lessor, under penalty of forfeiting the lease, and he afterwards aliens 
 without licence, equity will not relieve him {/)> 
 
 But if a condition be to do such an act, and the lessor discharges 
 him of part, the whole condition is destroyed j as if a condition 
 be to plough his land, or build his house, and he discharges him of 
 part(^). 
 
 So where the lessor license his lessee to alien part, he may alien 
 the residue without licence ; for the lessor cannot enter, because if 
 he should enter for the condition, he should enter upon the entire, 
 as it was limited ; and if he should enter upon the entire, he would 
 destroy that which he had licensed to be aliened, which he can- 
 not do [h). 
 
 Indeed, on a proviso that the lessee and his assigns shall not alien 
 without licence, if the lessor give licence, the condition is entirely 
 destroyed, and the assignee may afterwards assign or demise the 
 whole or any part of the term without licence. But it is otherwise 
 of a devise of the term, for that would have been a breach of the 
 .condition (i). 
 . So, if a lease be upon condition, that the lessee or his assigns 
 
 {a) Cro.Eliz. 528. I Salk. 4. (i) Style, 265. (c) i Str. 405, &./ i«Ve Doug. 187. 
 
 {J) Style, 483. (0 Cro. Eliz. 816. a T. R. 425. (/) 9 Mod. I12. 
 
 (iO Com. Dig. tit. Condition. (Q.) i Roll. 471. 1. 47> i^- 
 {b) Ibid. 1. 4Z. Cro. Eliz. 816. Dumpor's case. 460. 12 Vcs,. 191. 
 (j) Com. Dig. tit. Condition. (Q.) 1 Roll. Ab. 471. Cio. Eli/. 8t6. DumiKir'i) case, 460. 
 2» V«s. 191.
 
 2i52 Of express Covenants, [Chap. X. 
 
 shall not alien, unless to his brother : if the lessee assigns his term to 
 his brother, it seems he shall not be restrained by the condition {a). 
 
 A proviso in a lease for re entry upon assignment by the lessee, 
 his executors, administrators, or assigns without licence ceases by as- 
 signment with licence though to a particular individual {h). 
 
 But if a lease be upon condition to husband and wife, tWat TMt 
 comes to any other hand than their own, and their issues, the lessor 
 shall re-enter if the husband dies, and the wife takes another husband, 
 the lessor shall re-enter (c). 
 
 So, also, if the lease contain a proviso, that the lessee, his exe- 
 cutors, or administrators, shall not set, let or assign over the whole 
 or any part of the demised premises without licence in writing on . 
 pain of forfeiting the lease, the administratrix of the lessee cannot 
 under-let without incurring a forfeiture. A parol licence to let part of 
 the premises does not discharge the lessee from the restriction of such 
 a proviso : for as the party is charged by a sufficient writing, so 
 must he be discharged by a sufficient writing, or something of as high 
 an authority, apreeable to the maxim unum quodqut dissolvitur eo lisa~ 
 tntne quo Itgatur [a). 
 
 If a lease be made to a man and his assigns for twenty-one years 
 provided that he shall not assign, the proviso being repugnant to the 
 premises is void ; but it would have been good, if the word " assigns" 
 had been omitted (^). ,," -* t 
 
 A proviso against assignment without lideticft ih a lease to a lessee, 
 his executors, administrators, and assigns, is not repugnant, the con- 
 struction being such assigns as he may lawfully have, viz. by licence, 
 or by law, as assignees in bankruptcy (/). 
 
 Where a lessee covenanted that neither he nor his executors or ad- 
 ministrators would assign the term without the lessor's consent, with 
 a power of re-entry to the lessor in such case, and that the lease 
 should be void •, the lessee died, his executor entered and afterwards 
 became a bankrupt, and the lease was assigned over by the assignees 
 under his commission for a valuable consideration to the plaintifF, 
 who brought his bill in equity to be relieved against the proviso, and 
 to stay proceedings in an ejectment brought against him upon it : 
 Lord Macclesjield held clearly that the assignment, being done by the 
 authority of a statute, would supersede any private agreement be- 
 tween the parties, and that the assignment by the assignees was no 
 breach of the condition [g). 
 
 But though bankruptcy supersedes an agreement not to assign with- 
 out licence, that has been held only in favour of general creditors ; 
 and where there is no actual lease, but it rests upon agreement to 
 
 ((») Com. 1)1-,;. lit. Cuiidition. (1.) 1 Roll. 41a. 1. 10. (A) l4,Ves.i7,v 
 
 («j C^in. Di;;. ut ante. (O.) {^) a 1'. R. 425. (/■) Shcp. "roucli. 12J. n. i. 
 
 (/j iiVco.504. (iO iT.R.136.
 
 Sect. II.] Of express Covenants. 253 
 
 grant a lease, an individual cannot have a specific performance in op- 
 position to such proviso, and it is very doubtful whether the general 
 assignees could obtain it, even if there vi^as no such provision (a). 
 
 Although conditions in restraint of alienation are legal and usual, 
 courts of law have always held a strict hand over such methods of 
 defeating leases, and have countenanced very easy modes of putting 
 an end to them {b). 
 
 Therefore when the words of the condition were " That the 
 *< lessee, his executors or administrators, shall not at any time or 
 « times during this demise, assign, transfer, or set over, or other- 
 *' wise do or put away this present indenture of demise, or the pre- 
 " mises hereby demised, or any part thereof j" it was held that this 
 condition was not broken by an under-lease ; for that " assign, 
 « transfer, and set over," were mere words of assignment, where- 
 as the present was an underJease, [the words, " demise over'* were 
 omitted in the proviso ;] and that devising a term, [see Bac. Abr. 
 tit. Conditions^ O.] or the lessee becoming a bankrupt, or dying in- 
 testate, would be " a doing and putting away the lease ;" so being 
 in debt, by confessing a judgment and having the term taken in exe- 
 cution, was the like : but that none of these amounted to a breach 
 of this condition (r). 
 
 So, upon the principle of one of the grounds of adjudication in the 
 preceding case, it has been held, that a lease taken in execution on a 
 warrant of attorney to confess a judgment given by the lessee is not 
 a forfeiture of the lease, under a covenant by such lessee " not to let, 
 set, assign, transfer, make over, barter, exchange, or otherwise part 
 with the indenture, ^c. ;" for a distinction is to be taken between 
 those acts which a party does voluntarily, and those that pass in invi- 
 tum : of which latter class is the one in question (d). 
 
 But where it appears that the warrant was executed for the express 
 purpose of getting possession of the lease, the maxim applies, that 
 that which cannot be done per directum, shall not be done per obli- 
 quum : in such case, therefore, it being in fraud of the covenant, the 
 [ landlord may, under a clause of re-entry for breach of the condition, 
 recover the premises in an action of ejectment from a purchaser under 
 the sheriff's sale (e). 
 
 Where a lease contained a proviso for re-entry in case the tenant 
 should demise, lease, grant or let the demised premises, or any part 
 or parcel thereof, or convey, &c. to any person whomsoever for ^11 
 or any part of the term, and the defendant agreed with a person to 
 enter into partnership \yith him, and that he should have the use of 
 some part of the premises exclusively, and of the rest jointly^ with the 
 
 (a) 1% Ves. 504. (J>) a Bl. Rep. 767. 3 Wils. 335. s. c. 
 
 W Ibid. {d) 8 T. R. 61. (0 8 T. R'. i6»:
 
 !2.54 Of e.vpress Cove?7m2ls, [I'hap. X. 
 
 defendant, and accordingly let him into possession : held that the 
 lessor was entitled to re-enter (a). 
 
 If a covenant not to assign contain an exception in favour of as- 
 signment by will, semb/e that executors claiming under the will are 
 not within the exception so as to be at liberty to sell for payment of 
 debts (^). 
 
 A covenant that the lessee his executors or administrators shall not 
 assign does not bind his assignees (c). 
 
 A covenant not to under-let any part of the premises is not broken 
 by taking in lodgers (d). 
 
 Where a lessee covenanted that he, his executors, administrators, or 
 assigns, would not assign the indenture, or his or their interest 
 therein, or assign the premises to any person whatsoever, without 
 consent, and the lessee deposited the lease as a security for money 
 borrowed and became bankrupt, and the lease was sold by direction 
 of the Chancellor to pay that debt ; it was held that the assignees 
 under that commission might assign the lease to the vendee without 
 consent of the lessor [e). 
 
 Where one leased for 21 years if the tenant, his executors, 8<c. 
 shotdd so long continue to inhabit and dauell in the farm housty and actually 
 occupy the la?id, ^c. and not let or assign over the lease, held that the 
 tenant having become bankrupt, and his assignees having possessed 
 themselves of the premises, and sold the lease, and the bankrupt 
 being out of actual possession and occupation of the farm, the lessor 
 might maintain an ejectment {f ). 
 
 An assignment by operation of law is not, it should seem, a 
 breach of a general covenant of ihis nature: the landlord, therefoie, 
 does well to protect himself as far as he can by the particularity of 
 the words contained in his covenant [g). 
 
 Thus a proviso in a lease that the landlord shall re-enter on the 
 tenant's committing an act of bankruptcy whereon a commission 
 shall issue, is good j for it is a proviso not contrary to any express 
 law, or to reason, or public policy •, and the landlord in such case 
 parts with his term on account of his personal confidence in his ten- 
 ant, which is manifestly the case in all leases where clauses against 
 alienation are inserted i^h). 
 
 Where there is a right of entry given for assigning or underletrting, 
 if a person is found on the premises, appearing as the tenant, it is 
 primci facie evidence of an underletting suflicient to call upon the de- 
 fendant to shew in what character such person was in possession, 
 whether as tenant, or servant to the lessee (?'). 
 
 (,/) I M.& S. 297. Ih) S Taunt. 249. (t) 5 Taunt. 795. i Mars. .■^59. S. C. 
 
 {d) 4 Cimp, 77. (/) .1 M. & S. 353. if) 8 East, 185. 
 
 (^) aT. R. 1.34. (£) Ibirf. 138-140. (/) jF.sp. 4.
 
 Sect. IT.] Of express Covenanti^, '255 
 
 Covenant io insure.— A covenant in a lease of a house, to insure 
 during the term to a given amount in some sufficient insurance 
 office, is not void for uncertainty ; but means that the premises shall 
 be insured against fire in some office where such insurances are 
 usually effected [a). 
 
 Where a lease contained a covenant to insure and keep insured a 
 specified sum of money upon the premises ; and the lessee effected 
 such insurance the policy containing a memorandum, that in case of 
 the death of the assured, the policy might be continued to his per- 
 sonal representative, provided an indorsement to that effect was made 
 upon it luithin three months after his death, and the lessee died, and 
 an indorsement continuing the policy to his personal representative 
 was made after the expiration of three months from the time of his 
 decease : it was held that there was no breach of the covenant to 
 Jceep the premises insured {b). 
 
 Caastructioti of covennntsy Isfc. — A covenant in an indenture of lease 
 for twenty-one years from MichaelmaSy that the tenant should not, 
 during the term, cut down any of the coppice of less than ten years' 
 growth, or at any unseasonable time of the year: but at the end of 
 the term the landlord agreed to pay to the tenant, the value of all such 
 growth of coppice as should be then standing and growing ; was held 
 according to its grammatical construction (uncontrolled by any other 
 part of the instrument shewing a different intent) to bind the land- 
 lord, to whom the words of the covenant were to be attributetf, to 
 pay the tenant for the value of all the coppice of less than ten years' 
 growth left standing on the demised premises at the end of the term ; 
 tliough no special consideration appeared on the face of the deed for 
 the landlord's agreeing to make a compensation to the tenant for the 
 value of such part of the -coppice, which the tenant was not entitled 
 to cut. One Judge, who dissented, thought that the words " such 
 growth" referred to a growth of ten years, though inaccurately ex- 
 pressed ; founded on a strong presumption of the meaning of the 
 parties, as gathered from the restriction on the tenant not to cut cop- 
 pice of less than ten years' growth; and to the period of the year 
 when the tenancy would end ; which was before the cutting season, 
 but after a portion of the coppice would be of ten years' growth {c). 
 
 The assignor in a deed of assignment of a lease, after reciting the 
 original lease granted to another for the term of ten years, which by 
 mesne assignments had vested in him, and that the plaintiff had con- 
 tracted for the absolute purchase of the premises, bargained, sold, 
 assigned, transferred, and set over the same to the plaintiff^ for and 
 during all the rest, i^c. of the said term of ten years, in as ample 
 manner as the assignor might have held the same, subject to the pay- 
 ment of rent and performance of covenants ; and then covenanted 
 
 (j) 3 Cainp. 134. (/.) 4 Camp. 73. (c) 13 E.ist, 80. 
 
 6
 
 256 Of express Coveiiants. [Chap. X. 
 
 that It was a good and subsisting lease, valid in law, in and for the said 
 premises thereby assigned, and not forfeited, ^c. or otherwise deter- 
 mined, or become void or voidable. It was held that the generality 
 of this covenant for title, which was supported by recital of the bar- 
 gain for an absolute term of ten years, was not restrained by other 
 covenants which went only to provide for or against the acts of the 
 assignor himself or those who claimed under him : such as, ist, a 
 covenant against incumbrances, except an under-lease of part by the 
 assignor for three years; 2dly, for quiet enjoyment ; 3dly, for fur- 
 ther assurance : and therefore where it appeared that this original lease 
 was for ten years, determinable on a life in being, which dropped be- 
 fore the ten years expired, though not till after the covenant of the 
 assignor, it was held that the assignee might assign a breach upon the 
 absolute covenant for title {a). 
 
 In the execution of an agreement for a lease with proper covenants, 
 the party has a right to such covenants as arise out of the general 
 well-known practice as to such leases ; and not contradicting the in- 
 cidents of the estate belonging to a lessee ; one of which is the right 
 to have the estate without restraint, beyond what is imposed upon it 
 by operation of law ; unless there is an express covenant for more. — 
 Where there is an agreement of this kind, the law implies what are 
 proper covenants, as connected with the character and title of the 
 lessor {b). 
 
 Where a man entitled to an estate of inheritance agrees to make 
 leases with a covenant for perpetual renewal, each lease to contain 
 the same covenant for ever, the agreement must be carried into exe- 
 cution (f). — But an agreement for a lease with a covenant for per- 
 petual renewal at a fixed rent, of church lands, renewable upon fines 
 continually increasing, was decreed to be delivered up on the ground 
 of surprise, neither party understanding the effect of it {d). 
 
 Where a lease contained many covenants on the part of the lessetf ; 
 and after such covenants, a proviso " that if all or any of the cove- 
 nants hereinafter contained on the part of the lessee shall be br "kcn^ it 
 "shall be lawful for the lessor to re-enter," and there were no covenants 
 on the part of the lessee after the proviso ; but only a covenant by 
 the lessor that the lessee performing all and every the covenants here- 
 inbefore contained on his part to be performed, &c. should quietly en- 
 joy : it was held that the lessor could not enter for a breach of cove- 
 nant, for that the proviso was restrained by the word hereinafter to 
 subsequent covenants, and though there were none such, yet the court 
 could not reject the word (<?). 
 
 Cotidition to re-enter on non-payment of Rent. — A condition that, if the 
 rent be behind by the space of any given time after the day prescribed 
 
 («) i; E«f, 530. (i) Ihid. (0 16 Ves. Jun. 84. {d) \(^ Vfi. 72- 
 
 (/■) 4 M. & S. 265.
 
 Sect. II.] Of cjopress Covenants, 257 
 
 for payment, the lessor shall re enter, U good ; and such condition is 
 not saved by the attendance of the le^^see with the rent merely un the 
 first day of paymfrnt, for if the lessor be not then tliere to receiye it, 
 the lessee must equally attend on the last day (a), % , ai'^^'X' udi «c 
 
 If a lease be made rendering rent, on condition, that if the rent be 
 not paid within twenty days, the lessor shall re-enter, and the rent 
 is not paid ; in this case the condition is broken '^b), but tli£ lesser 
 cannot enter until he has made a legal demand ; and if he die beforp 
 he do it, his heir shall never take advantage of that breach, buc is dis- 
 charged for ever (<r). . , ata l-^'' 
 
 Nobody can have the re erttry but he who should have the rent were 
 there no lease ; and so is the very text of Littleton, Co. Lit 2 '3. J. 
 346, 347. by construction therefore it must be so. As to demand, ^ 
 clause of re-entry is required (in the principal case, which was a lease 
 under a power) as a security for rent ; deniand is requiiice both by 
 common law and statute ; a clause of reentry will never be allowed 
 to operate further than as a security for rent [d). 
 
 As to demand of rent before re-entering for non-payment, en an 
 objection being taken for the omission thereof, (respecting which it 
 became unnecessary for the court to give any opinion) these authori- 
 ties were mentioned [e) : Co. Lit. 201 b. ^ Rol. Abr. 459. pi. 1, 2, 6. 
 S Csu 40, 7 Ca. 28 b. Fnem. 242. 1 Ld. Raym. 750. and i Salk. 
 
 359- 
 
 A material difference subsists between a remedy by re-entry and a 
 
 remedy by distress, for the non-paytpent of rent. Where the remedy 
 is by way of re-entry for non-payment, an actual demand must be 
 maJe previous to the entry, otherwise it is tortious, and trespass 
 would lie, because a condition of re-entry is in derogation of tlw 
 grant, and the estate at law, being once defeated, is not to be re- 
 stored by any subsequent payment : but a notice of distress is of it- 
 self a demand (y). 
 
 But where the power of re-entry is given to the lessor for non-pay- 
 ment without any farther demand, there it seems that the lessee has 
 undertaken to pay it, whether it be demanded or not, and no pre- 
 sumption in his favour can arise in this case, because, by dispensing 
 with the demand, he has put himself under the necessity of making 
 an. actual proof that he was ready to tender and pay thc.reiXt* ..Jx 
 would, however, be adviseable for the lessor even in this case to'd?- 
 mand the rent, as the payment should be on the land, provided no 
 place is fixed for the purpose, and a tenant may be prepared to prove 
 that he was on the land the day the rent became due, ready to pay [g). 
 
 Also as to the necessity of a demand of the rent, there is a differ- 
 ence between a condition and a limitation;^ for instance, if a tenant 
 
 («) Bac. on Leases, 420. (i) Ibid. (0 6 T. R. 458. (</) Lofft's R. 319. 
 
 (*) 6 T. R. 459. (/) Shep. Touch. 148. n. i. {g) Bac. Abr. tit. Conditions. (0. 2.) 
 
 s
 
 USS Of ej^press Covenants, [Chap. X 
 
 for life, (as the case was by marriage settlement, with power to make 
 leases for twenty-one years, so long as the lessee, his executors, or as- 
 signs shall duly pay the rent reserved) makes a lease pursuant to the 
 power, the tenant is at his peril obliged to pay the rent without any 
 demand of the lessor ; because the estate is limited to continue only 
 so long as the rent is paid, and therefore, for the non-performance ac- 
 cording to the limitation, the estate must determine : a demand how- 
 ever had better be made, for the reason before stated {a). 
 
 If a place be limited and agreed on by the parties where the condi- 
 tion is to be performed, the party who is to perform it is not obliged 
 to seek the party to whom it is payable elsewhere ; nor is he to whom 
 it is to be performed obliged to accept of the performance elsewhere ; 
 but he may accept it at another place, and it will be good {b). 
 
 Where a lease contained a proviso that if the rent should be In ar- 
 rear twenty-one days next after day of payment being lanvfully demanded^ 
 the lessor might re-enter, it was held (Lord Ellenboroughy C. J. diss.) 
 that the lessor might re-enter without a demand, no sufficient distress 
 being on the premises (c). 
 
 A lease contained a proviso for re-entry in case the rent should be 
 in arrear twenty-one days, and there should be no sufficient distress 
 upon the premises -, the landlord distrained before the expiration of 
 the twenty-one days, but continued in possession of the distress upon 
 the premises until after the expiration of twenty-one days j it was 
 lield that he did not thereby waive his right of re-entry [d). 
 
 Rent reserved payable yearly is to be paid on the land ; because the 
 land is the debtor, and that is the place of demand appointed by law. 
 So, if a man leases rendering rent, and the lessee binds himself in a 
 sum to perform the covenants ; this does not alter the place of pay- 
 ment of the rent, for it may be tendered on the land without seeking 
 the obligee ; except where the condition is for the performance of ho- 
 mage or other corporeal service to the person of the lord {e). 
 
 The lessee of the King must pay his rent, without demand, at the 
 Exchequer, wherever it may be ; but if the King grant the land in re- 
 version, the rent must be demanded on the land, before the patentee 
 can enter as for a forfeiture on nonpayment {f). 
 
 As to the landlord's right of re-entry being waived, if a lessor re- 
 ceive rent-arrear by any act affirming the lessee's possession, it bars 
 his right of reentry for non-payment on the day it was due {g). 
 
 Thus, in an action of ejectment, the case was, a prebend let land 
 for years rendering rent, and a re-entry for non-payment. The rent 
 was dcmn!ulcd and was not paid, and two days afterwards the lessor 
 received the rent of him and made him an acquittance by the name of 
 
 j«) B«. Air. tit. Cpnditioiis. (O. a.) (A) ll.id. (0. 4.) {,) a M. 4t S. yis- 
 
 {d) i^tuk. 411. (r) Bac. Abr. lit. Conditionj. (O. 4.) Co. LiUIOl. >. 
 
 (J) Cio. tliz. 46a. {^) MiA. i. 
 
 8
 
 Sect. 11.] 4)f ea'jyress CorCfuiJils, 2,79 
 
 his Termor. Whether this receipt barred him or not of his re-entry ? 
 was the question. It was clearly resolved that the bare receipt of th.c 
 rent after the day was no bar, for it was a duty due to him : but a dls- 
 fresa for the rent, or the receipt of rent due at another day, was a bar, 
 for those acts affirm the lessee to have lawful possession : so if he 
 makes him an acquittance with a recital that he is his tenant. In the 
 principal case, the lessor calling him his termor, was a full declaration 
 of his meaning to continue hini hU tenant, and it was adjudged that 
 the entry was not lawful («). 
 
 So, where a lease was made to one for life rendering rent at Mi^ 
 chaelmasy with a clause of re-entry for non-payment, the rent was in 
 arrear, and afterwards the lessor brought an action for the rent : ad- 
 judged, that notwithstanding this action, he (the lessor) might still 
 enter for a breach of the condition : for the action for the rent did 
 not affirm the lease, because it shall be intended to be brought as for 
 a duty due upon a contract ; but if he had distrained for the rent not 
 being paid at the day, then he can never afterwards enter for a breach 
 of the condition, because the distress affirms the continuance of the 
 lease {b). 
 
 So, a gift was made to the husband and wife, and to the heirs of 
 their bodies ; they afterwards made a lease of the lands, reserving 
 rent on such a day, with a clause of re-entry; then the husband died, 
 and the rent being in arrear, ,the issue in tail accepted it ; adjudged 
 that this was no affirmance of the lease as to himself, because the 
 rent was not due to him whilst his mother was living, but it had been 
 otherwise, if he had accepted it after her death (r). 
 
 It is indeed a rule, that the mere acceptance of rent shall not ope- 
 rate as a waiver of a forfeiture, or as a confirmation of the tenancy, 
 unless the landlord had notice that a forfeiture was incurred at the 
 time or did some other act indicating his intention to continue the 
 lessee in his term (//) : and such acceptance Is matter of evidence only 
 as to the quo animo, to be left to the jury under the circumstances of 
 the case (jt). 
 
 Touching conditions of re-entry for non-payment of rent or the 
 breach of any other covenant, the law upon that subject Is so well di- 
 gested in Mr. Serjeant Williamsh excellent edition of Saunders's Re- 
 ports^ that his note containing it may well be here introduced. 
 
 Where a condition of re-entry Is reserved for non-payment of rent, 
 several things are required by the common law to be previously done 
 by the reversioner, to entitle him to re-enter {f). i. A demand 
 must be made of the rent ; [and where there are several demises at 
 distinct rents, separate demands must be made for each, though they 
 be both reserved in the same lease. Vaugh. 71.] 2. The demand muse 
 
 (a) Qro. Eliz. 46a. (4)3Salk. 3. («) Ibid. (</) x T. R. 431. 
 
 {<) Co wp. SI 43. (/) 1 Sdund.aS;. n. 16.
 
 260 Of ed'press Covenants. [Chap. X. 
 
 be of the precise rent due j for if a penny more or less be demanded, 
 it will be ill. TAnd what remains payable, after the land-tax, or a 
 ground- rent demanded of and paid by the tenant, or any other part 
 of the rent agreed upon, has been lawfully deducted by the tenant, 
 will of course constitute the rent due, 4 T. R. 511.]' 3- ^^ "^"^t be 
 made precisely upnn the day on which the rent is due and payable by 
 4he ler.se to save the forfeiture : as where the proviso is, " that if the 
 rent shall be behind and unpaid by the space of thirty or any other 
 number of days, after the days of payment, it shall be lawful for the 
 lessor to re-enter," a demand must be made on the thirtieth or other 
 last day. 4. It must be made a convenient time before sun-set. 5. It 
 must be made upon the land, and at the most notorious place of it. 
 Therefore if there be a dwelling-house upon the land, the demand 
 must be at the front or fore-'door -, though it is not necessary to enter 
 the house, notwithstanding the door be open. But if the tenant meet 
 the lessor either on or off the land at any time of the last day of pay- 
 ment, and tender the rent, it is sufficient to save a forfeiture, for the 
 law leans against forfeitures. 6. Unless a place be appointed where 
 the rent is payable ; in which case a demand must be made at such 
 place. 7. A demand of rent must be made in fact, and so averred in 
 pleading, although there should be no person on the land i-eady to 
 pay it. 8. If after these requisites have been performed by the re- 
 versioner, the tenant neglects or refuses to pay the rent, then the re- 
 versioner is entitled to re-enter ; [for Jf the lessor or his sufficient at- 
 torney remain upon the land the last day on which the rent ought to 
 be paid, until it be so dark that he cannot see to tell the money, and 
 the money thus demanded be not paid, this is a denial in law, though 
 there be no words of denial ; upon which a re-entry may be made. 
 I Inst. 20 F. 4 Rep. 73.] However, it is to be observed, that no actual 
 entry is necessary to be made by him into the land, but it is sufficient 
 to bring an ejectment only : though it was held otherwise until Lord 
 Hales time, when it was decided that the entry confessed by the de- 
 fendant in the ejectment, was sufficient without any actual entry ; 
 which decision has been adhered to ever since. — It follows, as a ne- 
 cessary inference from what has been premised, that a demand made 
 after or before the last day on which the lessee has to pay the rent, in 
 order to prevent a forfeiture, or off the land, will not be sufficient to 
 defeat the estate. But now to obviate these niceties in some cases, 
 the Stat. 4 G. 2. c. 28. (of which hereafter,) prescribes a particular 
 mode of proceeding in cases of premises left vacant and a half year's 
 rent being due, but no sufficient distress being thereon (a). 
 
 The same requisites which arc deemed necessary in order tp entitle 
 the lessor to re-enter, arc also necessary in order to entitle him to re- 
 cover a tiomine poena, as it is called, which is not considered so much as 
 
 (a) I Sauiid. 287. n. i6. ^^^^^^ , ^,v
 
 Sect.^lf.J- df^prkis'Covenan& 201 
 
 a remeily for the recovery of the rent, as a penalty to oblige the tenant 
 JO a» punctual payment of it; and being so immediately connected 
 with the subject of this chapter, we have thought proper to notice it 
 in this part of the work. A nomirje poe/iie being so considered, there- 
 fore where a proviso is, that if the rent be in arrear for the space of 
 thirty days next after tiic days of payment, the lessee shall forfeit ten 
 shillings a day by way of penalty, in that case in order to entitle the 
 lessor tp recover the penalty, there must be a demand of the rent in 
 like manner in every respect, as we have before seen is required in 
 cases of re-entry for non-payment of rent. — A distinction is taken 
 between a power to re-enter, or a nomine paefi^e, and a power of dis 
 tress : as where a rent is granted payable, Sifr. and in default of pay- 
 ment if it be demanded, the grantee may distrain : in this case, it is 
 held not to be necessary to make a demand on the day, as in the case 
 of re-entry, or a nomine poena^ but he may demand the rent at any time 
 ^fter (rt\ 
 
 Jin cases of conditions of re-entry there is a difference between 
 leases for lives and leases for years ,- and with respect to the latter, 
 , there is also a difference between t/jemy which arises entirely from 
 the maprief in which the condition of re-entry is expressed in the 
 lease (h). 
 
 As to leases for lives, it is held that if the tenant neglect or refuse 
 ,to pay Jhis rent after a regular demand, or is guilty of any other 
 breach of the condition of re-entry, the lease is only voidable, and 
 therefore not determined until the lessor re-enters, that is, brings an 
 .ejectment for the forfeiture : and this, though the clause of the con- 
 dition should be, that for non-payment of the rent, or the like, the 
 lease shall cease and be void (c) : for it is a rule, that where an estate 
 commences by livery, it cannot be determined before entry ; therefore 
 , if the lessor, after notice of the forfeiture, which is a material and 
 issuable fact, accept rent which accrued due after, or does any other 
 act which amounts to a dispensation of the forfeiture (as bringing 
 covenant for half a year's rent, subsequent to the time of the demise 
 laid in an ejectment for the forfeiture ;) the lease which was before 
 voidable, is thereby affirmed [d). 
 
 But if there be a lease for years, with a condition, that for non- 
 payment of the rent or the like, the lease shall be null and void, in 
 ' 'such case if the lessor makes a legal demand of the rent, and the 
 lessee neglects or refuses to pay, or if the lessee is guilty of any other 
 breach of the condition of re-entry, the lease is absolutely deter- 
 mined, atid cannot be set up again by acceptance of rent due after 
 the breach of the condition, or by any other act. — Yet if in such 
 lease the clause be, that for non-payment of the rent it should be 
 
 («) I Sawnd. aS;. n. i6- (t) Ibid. (*) Ibid. (J) Bull. N. P. 96.
 
 262 Of e.vprcss Covenant. [Chap. X, 
 
 lawful for tlie lessor to re-enter, the lease is only voidable, and mar 
 be affirmed by acceptance of rent accrued after, or other act, if the 
 lessor had notice of the breach of the condition at the time (a). 
 
 Regularly, when any man will take advantage of a condition, if 
 he may enter, he must enter, and when he cannot enter he must 
 make a claim ; and the reason is, that a freehold and inheritance shall 
 not cease without entry or claim (b), and also the grantor may waive 
 the condition at his pleasure. — It is also to be observed that an entry 
 upon an estate generally, is an entry for the whole ; and if it be for 
 less, it should be so defined at the time (c). 
 
 It is laid down for a rule, generally, that he who enters for a con- 
 dition broken shall be seised in his first estate, or of that estate which 
 he had at the time of the estate made upon condition, and therefore 
 shall avoid all mesne charges and incumbrances (^), 
 
 Generally as to covenant?, touching the operation of an Act of 
 Parliament in respect to them, where the question is, whether a 
 covenant be repealed by an Act of Parliament, this is the difference ; 
 viz. wl^re one covenants not to do an act or thing which it was law- 
 ful to do, and an Act of Parliament comes afterwards and compels 
 him to do it, the statute repeals the covenant : so, if one covenants 
 to do a thing which is lawful, and an Act of Parliament comes in 
 and hinders him from doing it, the covenant is repealed ; but if a 
 man covenants not to do a thing which at the time was unlawful, 
 and an Act comes and makes it lawful to do it, such Act of Parlia- 
 ment does not repeal the covenant [e). 
 
 Though all the rent of the lessee is assigned by Act of Parliament, 
 if there are no words of discharge the lessee's executor is still liable 
 to covenant for the rent ( /"). 
 
 Where by an order, confirmed by Act of Parliament, that an in- 
 denture of lease, upon which rent was reserved, should be vacated 
 and cancelled, and that a stranger should enter into the demised 
 lands, and receive the profits ; the same rent in value, granted by 
 the lessee for the better securing of the rent reserved, is not dis- 
 charged, though the intention appears that they should be but one 
 rent paid (g). 
 
 It has however been held that if a man covenant to do a thing, and 
 it is afterwards prohibited, yet the covenant is binding; for that a 
 penal statute cannot have a retrospective operation (/j). 
 
 There is a difference between covenants in general and covenants, 
 secured by a penalty or forfeiture (r). In the latter case, the obligee 
 has his election ; he may either bring an action of debt for the 
 
 («) Haiind. ui ante. {b) Co. l,it. 2l8. (0 3 T. R. 170. 
 
 (^J Co. I.it. Z02. Bi.r. Abr. tit. Conditions. (0. 4.) 
 
 (t) r Salk. 198. vide fast. II, J. _ (/) Dhc. Abr. tif. Covenant. (E. 4. ru) 
 
 ff) 1 S»iinfJ. ico, Joi. (A) 3 Mod. 39. 
 
 (V) 4 JJuri. i2i3. Doug. 45. lor. t Tuund. j8. n. 1.
 
 Sect. II.] Of e^vprcis Covenants. S6S 
 
 penalty, after the recovery of which he cannot resort to the coven- 
 ant, because the penalty is to go in satisfaction for the whole : or 
 if he does not choose to go for the penalty, he may proceed upon 
 the covenant, and recover more or less than the penalty, toties 
 quoties [a). 
 
 Upon this distinction they proceed in courts of equity; they will 
 relieve against a penalty, upon a compensation -, but where the coven- 
 ant is <* to pay a particular liquidated sum," a court of equity can- 
 not make a new covenant for a man, nor is there any room for com- 
 pensation or relief (3). 
 
 Thus in leases containing a covenant against ploughing up meadow ; 
 if the covenant be ** not to plough," and there be a penally, a court 
 of equity will relieve against the penalty ; and will even go further 
 than that to preserve the substance of the agreement U). But if it is 
 worded ** to pay 5/. an acre for every acre ploughed up," there is no 
 alternative, no room for any relief against it, no compensation ; it is 
 the substance of the agreement, it is the particular liquidate.d sum 
 fixed and agreed upon between the parties, and is therefore the pro- 
 per quantum of the damages \d). 
 
 Indeed, nothing can be more obvious, than that a person may set 
 an extraordinary value upon a particular piece of land or wood, on 
 account of the amusement which it may afford him. In this coun- 
 try a man has a right to secure to himself a property in his amuse- 
 ments: and if he choose to stipulate for 5/. or 50/. additional rent 
 upon every acre of furze broken up, or for any given sum of money 
 upon every load of wood cut and stubbed up, there seems nothing 
 irrational in such a contract {e). 
 
 The court of chancery will relieve against forfeiture under a coven- 
 ant for non-payment of rent : but not where the recovery in eject- 
 ment was also upon breach of other covenants {f). 
 
 Equity will likewise relieve against a forfeiture incurred by breach 
 of a covenant to lay out a specific sum in repairs in a given time [g). 
 
 "Where articles contain covenants for the performance of several 
 things, and then one large sum is stated at the end to be paid upon 
 breach of performance, that must be considered as a penalty. But 
 where it is agreed that if a party do such a particular thing such a 
 sum shall be paid by him, there the sum stated may be treated as li-» 
 quidated damages. 
 
 It is therefore clear, that where the precise sum is not the essence 
 of the agreement, the quantum of the damages may be assessed by the 
 jury : but where the precise sum is fixed and agreed upon between 
 
 {a) a BI. R. 1190. 6 T. R. 303. (i) 9 Mod. 113. 4 Biur. 22x8- 
 
 (#) Ibid. {d) 3 Atk. 396. antt. *Bra P. C, 436. (/) 7 Bos. & PuL 3J|. 
 
 (/) ioVm. 67. laVw. 475. {g) li V«s. a8a. but we 16 Vtj. 406.
 
 264 Of Assignments and Under-Leases, [Chap. XI.~ 
 
 the parries, that very sum is the ascertained damage and the jury arc 
 confined to it ,a). , 'nv 'i^^'iq is rKm ,...■;• vp-'-n ' icori 
 
 Thus, whert: there is a clause of mm'wf poena in a lease to a tenant-' 
 to prevent his breaking up and ploughing old pasture ground, the in-^ 
 tertion thereof being to give the landlord some compensation for the 
 dam:;ge he has su^t ired from the nature of his land being altered, 
 the whole nomine poena shall be paid, and not at the rate of ^l. per^i 
 cent, only for the rent reserved (3). v >a*v.».-% 
 
 Where a conveyance of Imd is void, so as no estate pa«sesj all 
 dependent covenants are void also *, otherwise of covenants, inde- 
 pendent c) -^tiijM ^ad^fi. 
 
 For a lease must either be good or bad in its creation. Therefore, 
 where it was expressly fouiid, that a covenant in a lease, under a 
 power requiring the insertion of " usual covenants," was unusual ; 
 the qiestion was. Whether that circumstance avoided the lease itself, 
 or only that particular covenant: and it was observed that the party 
 had no power to lease at all, unless in the form prescribed ; which 
 became a condition precedent. It being manifest that the lease was 
 not nvride pursuant to the power, it was void in its creation, and the 
 reversioner had a right to take advantage [d'l. 
 
 Ir tf-nant for a term of years lease for a less term and assign his 
 reversion, and the assignee take a conveyance of the fee, by which 
 hi-- former reversionary interest is merged, the covenants incident to 
 that reversionary interest are thereby extinguished (<•). iuia^:* g 
 
 (a) 4Burr. aZ29. (J>) aAtk. 289. {c) iSalk.199. (</) iT.'C;?^. 
 
 (0 3T.R.393. 
 
 CHAPTER XL 
 
 Of Assignments and Under-Leases ; 
 
 And in nvhat cases Assignees are bound by Covenants^ or may make /irf- 
 vnntdge of the in ; ivbdher the Assignment or Under- Lease be absolute , 
 or by ivay of Mortgage. 
 
 AN dssigtiment is the transferring and setting over td another 
 some righr, title, or interest in things, in which a third per- 
 son, not a parry to the assignment, has a concrrn and interest (a). 
 
 , Every one therefore who has an estate or interest in lands and tene- 
 ments, may assign it {b) . as tenant for life, for years, iffc. But a t$n» 
 ant at will, or ufTcrance, cannot assign, it is conceived, for reasons 
 belore mcnrioned (r).] 
 
 (a) Ate. Abr. tit* A«$if atncAt. (l>) Com. Dig. tit. At&i£nnient..{A<)
 
 Chap. XI-T Of Assignments and Under- Leases^ ^65 
 
 So the interest or estate that a man hath by extent, is as«iignablc 
 from man to man at pleasure {a\ So, an annuity may be demised 
 by way of assignment : and an office in certain cases may be as- 
 signed (l)). And every one who has a present and certain estate or 
 interest :n things which lie in grant, may assign ; as in a rent, com- 
 mon, advowson, &c. (f\ Though the interest be future ; As a 
 term for years to commence in futuro ; for the interest is vested in 
 pr^senti, though it does not take effect till a future time (J). ,^ 
 
 So a possibility of a term is assign-ble in equity for a good consi- 
 deration, though not so at law : and though the assignment of a con- 
 tingent interest, which a husband has in right of his wife, pr the 
 possibility of a term, is not strictly good by way of assignment, yet 
 it will operate as an agreement where there Is a valuable considera- 
 tion ; but it must be an assignment of that particular thing, and not 
 rest only in intention and construction of words in a covenant [e). 
 
 So, a lessee for years of the crown may assign his term, though 
 he is ousted by a stranger {/) : for the reversion being in the crown he 
 cannot be out of possession but at his pleasure; but ordinarily a 
 lessee cannot assign his term if an actual ouster had taken place, till 
 he re-enter (^). 
 
 A power, where it is coupled with an interest, may be assigned, 
 "^ough a bare power is not assignable •, therefore if a lease be made 
 vith an exception of the trees, and a power be reserved to the lessor 
 to enter and cut them down, he may assign this power to another 
 person ; but if it be not properly pursued, the lessee may maintain 
 trespass both against the lessor and his assignee [h). 
 
 A lease was made for years of lands excepting the woods : the 
 lessor grants the trees to the lessee, and he assigns the land over to 
 another ; the trees do not pass by this assignment to the assignee (J). 
 
 But generally a chose in action, bare right, or possibility cannot be 
 assigned j and where it is otherwise it arises from the enactment of 
 some statute, <5rf the construction of a court of eq^uitv. 
 
 As a right is not assignable, if the conuzee of a statute sue an ex- 
 tent, and a liberate is returned, yet if he suffer the conuzor to keep 
 possession, he cannot assign the lands -, for his possession under the 
 liberate is by his own entry turned to a right [k). 
 
 < But the king by virtue of his preTog;^tive may assign a chose in ac- 
 tion, and the assignee may sue either in his own name or in the 
 king's (/). 
 
 Yet if the king grant a chose in action to another, as he in»y, his 
 grantee cannot assign it to another (m). 
 
 . ■(«) Shep. Touch. 242. {i) ^Ate, lOi, lOi. (c) Cora. D't^. tit ante. 
 
 (rf) Ibid. (<) 9 Mod. 102. aP. Wms. 6o8. ' 
 
 if) Cxo.Eliz.27s. (£)lhid. IS. (it) a Mod. 317. (;) Godb. 188. 
 
 (ij 4 Mod. 48, (/) Cro. Jac. 180. (w) Ibid. 
 
 9
 
 26^ Of Assii^nmenis and Under-Lcases. fCliap, Xf, 
 
 A. a copyholder covenants to assign and surrender to B. which 
 covenant is presented to the homage ; but before any surrender B. 
 assigns his interest to C. to whom A. surrenders ; C. has aright to be 
 admitted on payment of a fine for his own admittance only : for alt 
 the lord has a right to require is to have a tenant, and a private agree- 
 ment like this, not followed up by a surrender of the estate, cannot 
 give the lord of the manor a right to any fine in). 
 
 If a termor for years make a lease for a time exceeding, his interest^. 
 it shall operate as an assignment (h). 
 
 An assignment, as contradistinguished from an under-lease, signi- 
 fies a parting with the whole term [c) ; and when the whole term is 
 made over by the lessee, although in the deed by which that is done, 
 the rent, and a power of re-entry for non-payment, are reserved to 
 him, and not to the original lessor, yet this is an assignment and not 
 an under-lease ; and in such case, the original lessor or his assignee, 
 of the reversion, may sue or be sued on the respective covenants in 
 the original lease, even though new covenants are introduced in the 
 assignment [d). 
 
 So, if a lessee for three years assign his term for four years, or de- 
 mises the premises for four years, he does not thereby gain any torti- 
 ous reversion, but it amounts to an assignment of his interest {e). 
 
 An assignment is usually made by the words « grant, assign, and 
 set over;" but no particular expressions are necessary for the purpose, 
 provided the intention of the parties is sufficiently explaineiL 
 
 No consideration need be expressed in an assignment, for the as- 
 signees being subject to the payment of the rent reserved by the lease, 
 is held to be a sufficient consideration (/). 
 
 An assignment must, by the statute {g) of Frauds, be in writing ; 
 the statute enacts, that no leases, estates, or interests, either of free- 
 hold or terms of years, or any uncertain interest, (not being copyhold 
 or customary interest,) of, in, to, or out of any messuages, manors, 
 lands, tenements, or hereditaments, shall be assigned, granted, or 
 surrendered, unless it be by deed or note in writing, signed by the 
 party so assigning, granting, or surrendering the same, or their 
 agents thereunto lawfully authorized by writing, or by act and ope- 
 ration of law. 
 
 A parol assignment of a lease from year to year, granted by parol, 
 is void under the Stat, of Frauds {h). 
 
 An assignee of a lease, to shew his interest in the premises, is bound 
 to prove the execution of the lease, and all mesne assignments (j). 
 
 If a trader before bankruptcy deposits a lease as a security for 
 
 (•) 1 T. R. 484. {L) I J.d. Raym. 99. (0 » Sir. 405. - 
 
 (</) .Wr/^/f Doug. 187. n. t59- (#) I Ld. Raym. 99. 
 
 r/) Noy Mil. 91. I Mod. 363. a Mod. »j2. (^) 19 C»r. a. c. 3. 
 
 (4)*C«mph.5i8. (i) Ibid. 303.
 
 Chap. XI.] Of Assignments and Under-Leases. 267 
 
 money, but no mortgage or assignment of it then takes place, the 
 assignees may recover it : it conferring no legal title (a). 
 
 Tlie parry assigning is called the assignor, and he to whom the 
 assignment is made, the assignee. 
 
 The proper covenants on the part of the assignor are, that the in- 
 denture of lease is good in law ; that he has power to assign •, for quiet 
 enjoyment ; and for further assurance. 
 
 The proper covenants on the part of the assignee are that he will 
 pay the rent, or perform the services, as the case may be ; and also 
 perform the covenants contained in the indenture of lease, or save 
 harmless the assignor therefrom. 
 
 Assignees are in fact, or in law. — Under the word " assigns," the 
 assignee of an assignee in perpetuuniy the heir of an assignee, or assignee 
 of an heir shall take. So, if a man covenant with another, ** his exe- 
 cutors and assigns," the assignee of an assignee, and his executors, 
 and the assignee of an executor or administrator of every assignee, are 
 included and shall have covenant {b). 
 
 It seems that an action will not lie by an assignor against an assignee, 
 for he has no residuary interest (r). 
 
 In leases, the lessee being a party to the original contract, continues 
 always liable, notwithstanding any assignment (^d). 
 
 Therefore covenant will lie against a lessee for years on an express 
 covenant, as to repair, pay rent, t^c. notwithstanding he has assigned 
 his term and the lessor has accepted rent from the assignee. — But an 
 action of debt will not lie after acceptance of rent [e). 
 
 So, the executor of a lessee is liable to the grantee of the reversion 
 on such covenants ; though the lessee may have assigned his term and 
 the grantee have accepted rent of the assignee [f ). 
 
 For no assignment nor acceptance of the rent by the hands of the 
 assignee shall take from him the advantage of suing him or his execu- 
 tors upon an express covenant ; no more than if a lessee had obliged 
 himself in an obligation to pay his rent, his assignment over of his 
 term, and the acceptance of the rent by the lessor of the assignee, 
 shall not take from him the advantage of the obligation (g). 
 
 For the personal representative of a lessee for years is his assignee, 
 and a covenant to repair runs with the land, as it is to be performed on 
 it, and therefore binds the assignee (Jj). So with respect to a cove- 
 cant to make further assurance (i). 
 
 So, if there is a covenant which runs with the land, and the lessee 
 assigns over, and the assignee dies intestate, the lessor may have cove- 
 
 {a) 5 Esp. 105. {b) Com. Dig. tit. Assignment. (B.) Co, Lit. 384. b. 
 
 (<) I Ld. Raym. 99. a Salk. 10. s. c. (d) Doug. 460. 
 
 {e) Cro. Jac. 309. Cro. Car. 579. 4 Mod. 81. 3 Salk. 48. Cro. Jac. 334. 
 ry) 4 Mod. 88. Cro. Jac. JZJ. 3 Salk. j. (^) Cro. Car. 188. 
 
 (*y/ I Ld. Raym. J53, (i) Cro. Car. 503.
 
 268 Of Assignments and Under-Leases. [Chap/Xt. 
 
 nant against the administrator of the assignee and declare against him 
 as assignee ; for such covenants bind those who come in by act of law, 
 as well as by act of the parties (a). 
 
 Though all the estate of the lessee is assigned by Act of Parliament, 
 if there are no words of discharge the lessee's executor is still liable to 
 covenant for the rent [b). 
 
 Where there is a bond for the performance of the covenants in a 
 lease, if the lessee assigns the lease, he may likewise assign the\bond : 
 but this must be before any of the covenants are broken ; for if any of 
 the covenants are broken, and the lessee afterwards assigns the lease 
 and bond, and the assignee puts the bond in suit for those breaches, it 
 has been held to be maintenance (r). 
 
 An assignee must take the thing assigned, subject to all the equity 
 to which the original party was subject {d). 
 
 The assignee of a term is bound, therefore, to perform all the cove- 
 nants which are annexed to the estate ; for when a covenant relates to 
 arid is to operate on a thing in being, parcel of the demise, the thing 
 to be done by force of the covenant is, as it were, annexed to the thing 
 demised, and shall go with the land, and bind the assignee in the 
 performance, though not named : for the assignee, by the acceptance 
 of the possession of the land, makes himself subject to all the cove- 
 nants that run with the Land, of which repairing is one, building 
 another, to pay rent a third, t^c. and to such he is bQwnd without 
 being named by the special word ** assigns" {e\ 
 
 So, where there was a covenant to use the land in a husbandman- 
 like manner, and leave it in like condition, it was held to be such a 
 covenant as ran with the land, and that the executor of the landlord 
 might sue on it [/). 
 
 The assignee, however, is liable only in respect of his possession of 
 the thing ; he bears the burthen while he enjoys the benefit, and no 
 longer ; and if the whole is not passed, if a day only is reserved, he is 
 not liable [g). 
 
 But under an absolute assignment of a term the assignee may be 
 sued on the covenants before he has taken actual possession : for by 
 the assignment the title and possessory right might pa^s an^ the 
 assignee become possessed in law; and as to the actual possession, 
 that must depend on the nature of the property whether it can take 
 place ; thus the premises might be waste qr unprofitable ground, pr 
 ground intended to build upon {h). 
 
 So, a mortgagee^ though not in possession, is liable to perform the 
 covenants in the lease: for a mortgagee is liable not on the score of 
 
 (*) Esp. N. P. 190. (*) Pac. Abr. tit. Covenant. (E. 4- «•) (0 God^. 81. 
 
 ■ (^ Doug. (>i(). {t) Bull. N. P. 159. Esp. N. P. 289. 3 Salk. 4. 
 
 (/) Eip. N. P. ajj. (jf) Doug. 184. 460. (i) Ibid. 461. n. [i.]
 
 Chap. XI.] Of Assignments and Under-Leases, 269 
 
 possession, but as assignee ; and his liability is not limited by his pos- 
 session, but continues as long as he has the legal estate. He should 
 have taken an under-lease {a). 
 
 As to the extent to which the lessee or assignee is liable in cove- 
 riant, there is a considerable difference. 
 
 iV The lessee has, from his covenant, both a privity of contract 
 and of estate : and though he assigns, and thereby destroys the privity 
 of estate, yet the privity of contract continues, and he is liable in 
 covenant notwithstanding the assignment ib). 
 
 2. But the assignee comes in only in privity of estate, and therefore 
 IS liable only while he continues to be legal assignee ; that is, while 
 in possession under the assignment : except, indeed, in the case of 
 rent, for which, though he assign over, he is notwithstanding liable 
 as to the arrears incurred before, as well as during his enjoyinent ; 
 and such assignee was made liable in equity, though the privity of 
 estate was destroyed at common law (c). 
 
 If a lessee covenants that he and his assigns will repair the house 
 demised, and the lessor grants over the term, and the assignee does 
 'not repair it, an action of covenant lies either against the assignee at 
 common law, because this covenant runs with the land ; or it lies 
 against the lessee, at the election of the lessor, who may charge both ; 
 tilt execution shall be against one of them only, for if he take both 
 iri execution, he that is last taken shall have an audita querela (d). 
 
 So, covenant lies against an assignee on a covenant not to plough, 
 although assigns are not named in the deed } for it is for the benefit of 
 the estate, and runs with the land (e). 
 
 So, if A. leases lands to B. and B. covenants to pay the rent, repair 
 houses, (3*f. during the said term, and afterwards assigns to C. the 
 assignee is bound to perform the covenants during the term of the 
 first lessee, though the assignee be not named ; because the covenant 
 runs with the land made for the maintenance of a thing iti esse at the 
 time of the lease made {f). 
 
 A covenant may be dividable and follow the land : therefore an 
 action of covenant will lie against an assignee of part of the thing de- 
 mised (g). 
 
 Therefore, where one demised two houses, with covenant on the 
 part of the lessee for himself and assigns to repair, the lessee assigned 
 one of them, and for not repairing the lessor brought covenant 
 against the assignee, which action was held well to lie (h). So, in 
 case of eviction, the rent may be apportioned as in debt or re- 
 , plevin (i). 
 
 (a) Stone V, Evans, ante. 8j. (i) Doug. 458. 764. 
 
 (f) Bac. Abr. tit. Covenant. (E. 4.) 1 Bos. & Pul. 22' * East's R. 580. 
 {d) Cro. Jac. 533. {e) Ibid. 115. (/) Bac. Abr. tit. Covenant. (E. 3.) 
 
 (f) I Roll. 54J. 1.5. Jones. 845. Cro. Car. z»z. ' (i) IWd^ 
 
 (1) a East's R. J75. '
 
 S70 Of Assigmnenls and Under-Leascs, [Chap. XL 
 
 So, it seems, it lies by an assignee of part of the estate demised : or 
 
 the assignees of several parts may join [a). 
 
 The assignee of part of an estate is not liable for rent for the 
 whole (^). 
 
 But if a lessee grant or assign part of his estate, yet the entire 
 privity of contract is not at an end, and the lessee would, it seems, 
 remain liable on his covenant to pay the entire rent, for he cannot 
 apportion it (c). 
 
 Lessee of tithes covenants for him and his " assigns," that he will 
 not let any of the farmers in the parish have any part of the tithes: 
 this covenant runs with the tithes, and binds the assignee (d). 
 
 Where a covenant is for the benefit of the estate demised, it will 
 extend to the assignee, though not named. 
 
 Therefore, a covenant that a lessee should reside on the demised 
 premises during the term, was held to extend to his assignee, though 
 not named in the covenant (d-). 
 
 The assignee may assign, and thereby get rid of his subsequent 
 rent, and of the covenants which run with the land : and as he may 
 do so at law, so a fortiori may he do so In equity ; for though the te- 
 nant's liability on his covenant to pay rent subsists during the conti- 
 nuance of the lease, notwithstanding he may become a bankrupt an<l 
 be deprived of all his property, there is no personal confidence in th*:* 
 assignee of the lessee, and when he parts with the lease, he also gets 
 rid of his liability {J). 
 
 But an assignee, who assigns over, is liable to covenant for the rent 
 incurred during his enjoymentj and if covenant be brought, he may 
 plead, that before any rent was due he granted all his term to J, S. 
 who by virtue thereof entered and was possessed (^) ; and this will 
 be a good discharge wichout alleging notice of the assignment, and 
 the assignment will be good though made to a beggar, or to a person 
 leaving the kingdom, provided the assignment be executed before his 
 departure j or therefore made a day before the rent due to a prisoner 
 in the F/eet ,- nor can the phiiniifF take advantage of it by replying 
 perfrnuclem, unless he can prove a trust : it was the lessor's own fault 
 and folly to take the first assignee for his tenant j nor is he without 
 remedy, for he may bring covenant against the lessee, or may distrain 
 upon the land. In truth, if you have no remedy against the assignee, 
 you must lose your rent, and get possession of the premises as soon 
 as you can. The only case, Lord li/don thought, in which a question 
 of fraud could arise, was, where the assignor had kept possession of 
 the premises of which he made a profit, and had made an assignment 
 
 (o> Com. Dig. tit. Covrnant. (B. .v) j Lroii. 250. ((i) Ibid. 109. Doug. 186. 
 
 (t) Ibid. Cro. Klu.. 633, 6,v. a Ea-t'.-. P.. j;7<>. W 3 VVil^. a^. {,) 2 H. Bl. R. 13.^. 
 (J ) 1 All. ji^f,. iiMod.2ji. 1 Stian. 1211. 4'J'. R.y9. 8'i.K. ti. Uou^. 461. in k. 
 k iJo^. k Full. a> (j.) Bull. H. F. 1.^9. 4 Mod. ji.
 
 Chap, XI. 3 Of Assignments and tlnder-Leasss. 271 
 
 to prevent responsibility : but even there, if the possession were pro- 
 fitable, there would always be something on the premises for the land- 
 lord to distrain ; for which reason, his Lordship doubted whether 
 there ever could be such a thing as a fraudulent assignment, and whe- 
 ther an issue on such a point could ever be well taken. The defend- 
 ants, in the principal case, had a right to divest themselves of the in- 
 terest, by the mere form of an assignment, which drives the plaintiff 
 to take possession. Butler^ J, also thought, that the only case, where 
 the replication per fraudem could be good, was where the assignor con- 
 tinued in possession (a). 
 
 As therefore by the assignment the title and possessory right pass 
 and the assignee becomes possessed in law, and is only liable while in 
 actual possession (^), so, if he assign over before a breach, though 
 his assignee have not taken actual possession, yet he (the first assignee) 
 is not liable to an action of covenant (f). 
 
 A. being assignee of a lease, puts it up to auction : B. becomes 
 the purchaser, pays a deposit, and orders an assignment to him to be 
 prepared by v^.'s solicitor ; which is accordingly prepared and exe- 
 cuted by A.\ but instead of being delivered to B. it remains in the 
 possession of the solicitor, who claims a lien for the expense of pre- 
 paring it. Held, that to an action against A. as assignee of the term, 
 for rent accruing due after he had executed the assignment, these facts 
 were sufficient to support a plea, that before the rent became due he 
 had assigned to B. [d). 
 
 It is not necessary that notice should be given to the reversioner of 
 an assignment over. In an action against the assignee of a term, the 
 plea of an assignment over ought to shew that such assignment over 
 was made after the assignment stated in the declaration : but if it 
 does not, no objection can be made against it after replication that 
 such assignment over was fraudulent (r). 
 
 Where there is an exception in a lease of an entry, and liberty to 
 wash in the kitchen, and a passage for that purpose, an action will lie 
 against an assignee for hindering the lessor ; for a covenant relating 
 to a way or other profit apprendre goes with the tenement and binds 
 the assignee (y). 
 
 If a man leases for years, and the lessee covenants for him and his 
 assigns to pay the rent, so long as he and they shall have the posses- 
 sion of the thing let, and the lessee assigns, the term expires, and 
 the assignee continues the possession afterwards ; an action of cove- 
 nant will lie against him for rent behind after the expiration of the 
 term ; for though he is not an assignee strictly according to the rules 
 
 («) Salk. 8i. 4 Mod. 71. i% Mod. 23. Doug. 764. i Eos.& Pull. 23. (t) Doug. 444, 
 U) I B. & P, 41, id) 3 Camp. 394. (/> 1 Ld. Raym. 367. 3 Salk 48, 
 
 if) I Show.38S. I S«lk. 196.
 
 272 Of Assignments and Under-Leases. f Chap. XI. 
 
 of law, yet he shall be accounted such an assignee as is to perform 
 the covenants !a). 
 
 Touching the difference of debt and covenant against an assignee, 
 it is extremely clear that a person who enters into an express covenant 
 in a lease, continues liable on his covenant, notwithstanding the lease 
 be assigned over. The distinction between the actions of debt and 
 covenant, which was taken in early times, is equally clear ; if the les- 
 see assign over the lease, and the lessor accept the assignee as his les- 
 see, either tacitly or expressly, it appears by the authorities that an 
 action of debt will not lie against the original lessee ; but all those 
 cases with one voice declare, that if tliere be an express covenant^ the 
 obligation on such covenant still continues : and this is founded not 
 ©n precedents only, bat on reason ; for when a landlord grants his 
 lease, he selects his tenant; he trusts to the skill and responsibility of 
 that tenant ; and it cannot be endured that he should afterwards be 
 deprived of his action on the covenant to which he trusted, by an act 
 to which he cannot object (as the assignment of a bankrupt's interest) 
 as in the case of execution. In such a case the lessor has no choice 
 of the under-tenant : so, in the principal case, the assignees of the 
 bankrupt were bound to sell the term, and perhaps they might assign 
 to a person in whom the lessor had no confidence; wherefore the lessee 
 was held liable, notwithstanding his bankruptcy. Where a disposition 
 of the lease has been made by virtue of 7i fieri facias ^ or an elegity the 
 lessee continues liable on his covenant, notwithstanding the estate be 
 taken from him against his consent (^). 
 
 An assignee is not liable on a covenant that relates to something not 
 in being at the time of the demise, or merely personal or collateral to 
 the thing demised ; as to pay a sum of money in gross, to buiid de 
 no^fOf or the like, for it does not run with the land, and therefore as- 
 signees are not bound even though they be expressly named. 
 
 Thus, if a man leases sheep or any thing personal, a^d fhe lessee 
 covenants for himself and " his assigns" at the end of the term to de- 
 liver up the sheep or things so let, or such a price for them ; if the 
 lessee assign, this covenant shall not bind the assignee : for it is but a 
 personal contract, and wants such privity as is between the lessor and 
 the lessee and his assigns, by reason of the reversion (cj. 
 
 Tithes, however, are so far assimilated to land, being the profits 
 thereof, as to form an exception (d) 
 
 As the assignee of a term is not liable on a mere collateral cove- 
 nant, therefore where the lessee of certain premises covenanted to pay 
 annually, during the term of rwenty-OMc years, twenty shiUings, to the 
 churchwarde.is of the parish, his assignee was held to be not Uable {e), 
 
 {a) Bac. A br. tii. Covei.anc. (E. 3.) Stilt-, 407. {6) 4 'i'. R. 98. Noy. Max. J>l. 
 
 {c) s Co. 17. 3 Res. (d) J vv ils. ij. (>:) Cio. Jac. 438.
 
 Chap. XI.] Of Assignments and Under-Lcascs. 273 
 
 ' But though generally a personal or collateral covenant afTects not an 
 assignee, yet if the covenant regard something to be done upon the 
 land, and the assignee be named, though it w^ere not in being at the 
 time of the demise, and be in some measure collateral, as to build a 
 wall, or new house upon the land, i^c. it shall bind the assignee ; be- 
 cause he will receive the benefit of it (a). 
 
 Yet, though the assignee be named in the original covenant, if it 
 has been broken before assignrnent, no action will lie against him ; for 
 lie shall not be answerable for a breach which he never committed. 
 
 Thus, where the lessee covenanted to pull dovi'n certain old houses, 
 and rebuild others within seven years, but did not perform the cove- 
 nant, and at the end of seven years assigned ; an action was brought 
 against the assignee and held not to lie; the breach being complete 
 before the assignment (^b) : had the covenant however been broken 
 before the assignment, as if the lessee had assigned before the time 
 expired, the assignee would have been liable (t). 
 
 Neither is an assignee liable' fcr the breach of any covenant, as for 
 irent due, after he has assigned over his term ; because the privity of 
 festate is gone : and this though the assignment over be made without 
 notice to the lessor : and though such assignrnent goes to ihejemeco- 
 verty for she m.ay purchase (J). 
 
 The assignee therefore of a term, declared against as such, is not li- 
 able for rent accruing after he has assigned over, though it be stated 
 that the lessor was a party executing the assignment, and agreed there- 
 by that the term, which was determinable at his option, shall be abso- 
 lute (e). " " "!," ' " ' ^ -«* : 
 
 Yet'where a breach is continuing it shall be otherwise ; as. if a co- 
 venant be to repair within such time after notice, if the lessee does 
 not repair upon notice by the assignee, covenant lies ; thougJi il;,.^-was 
 out of repair before the assignment {f). 
 
 "A rent shall not be decreed against the assignee of a wine-licence 
 lease, who purchased without notice of the rent; for the rent does not 
 "run with the licence, but is due upon the contract only [g). 
 
 A covenant not to assign generally, must be personal and collateral, 
 and can only bind the lessee himself j for there never can be any as- 
 signee (/?»). 
 
 As an assignee shall be bound by a covenant real annexed to the es- 
 tate, and which runs along with it, so shall he take advantage of 
 :such (/). 
 
 ' Therefore, if the lessor covenants to repair, or if he grants to the 
 iessefe so many estovers as will repair, or that he shall burn within his 
 
 (<z) Co. i6. b. Com. Dig. tit. Covenant. (C. 3.) Bull. N. P. 159. 
 (4) I Bl. R. 351. 3 Burr. 1272. s. c. (c) Salk. 199. i Ld. Raym. 388. 
 
 (J) I Frem. 336. Noy Max.91. i Show. 340. Doug. 453. Co. Lit. 3. a. 356. b. 
 {e) Doug. 764. (/) Com. Dig. tit. Covenant. (B.) (g) Hard. 88. 
 
 (/j) 3 WJls. 33. (0 Bac. Abr. tit. Covenant. (E. 5.) 
 
 T
 
 274 Of Assignments and Under^'Leases. [Chap. XI. 
 
 house during the term ; these, as things appurtenant, shall go with it 
 into whose hands soever it comes {a). 
 
 So, if a man leases land to another by indenture, the covenant in 
 law created by the word " demise," shall go to the assignee of the 
 term, and he shall have advantage of it (b). 
 
 But though generally an assignee of a term who comes in by act 
 of law, as well by deed as by statute-merchant, shall have the benefit 
 of covenants ; an assignee of a lease by estoppel is an exception to the 
 rule ; for there is a difference where a covenant is annexed to a thing 
 which of its nature cannot pass at the first without deed, and where 
 not ; for in the first case, the assignee ought to be in by deed, other- 
 wise he shall not have advantage of the covenant {c). 
 
 If one by indenture lease a house for forty years, and the lessee co- 
 venants with the lessor that he will sufficiently repair the house during 
 the term, and that the lessor may enter every year, to see if the repairs 
 are done : and if upon view of the lessor it was repaired according to 
 the agreement, that then the lessee should hold the house for forty 
 years after the first term ended, and the lessee grants to another all 
 the interest in the term and terms which he had in the tenements, and 
 after the first term ended j the assignee shall not take the benefit of 
 this agreement. 
 
 But if j4. leases a house to B. for years, who covenants to repair, 
 and that A. his heirs, executors, and administrators, may at all times 
 enter, and see in what plight the same is ; and if upon such view any 
 default shall be found in the not repairing, and thereof warning shall 
 be given to B. his executors, ^c. then within four months after such 
 ■warning, such default shall be amended ; and afterwards, the house 
 in default of B. becomes ruinous, and A. grants the reversion to 
 C. who, upon view of the house, gives warning to B. of the default, 
 i^c. if it be not repaired, C. may have an action as assignee of A. 
 against B. though the house became ruinous before C. was entitled 
 to the reversion ; for the action is not founded upon the ruinous 
 state of the house, and the time when it first happened, but for 
 not repairing within the time appointed by the covenant after the 
 warning (^). 
 
 But an assignee shall not have an action upon a breach of covenant 
 before his own time {e). 
 
 The assignee of a term may take advantage of a covenant against 
 the assignee of the reversion ; and he may have this remedy by way 
 of retainer against such assignee. 
 
 Therefore where A. leased lands to B. for two hundred years, and 
 by the same deed covenanted for himself, his heirs, and assigns, with 
 8. his executors, and assigns, that if B. were disturbed for respite of 
 
 (<i) Bac. Abi. tit. Covenant. (E. 5.) {L) Ibid. (c) Cio. Eliz. 373.437. 
 
 {dj Bar, Abi . ul u/i(f, (e) Cro. Eliz. 863.
 
 Chap. XI.J Of Assignments and Under-Leases. 275 
 
 homage, or enforced to pay any charge or issues lost, he should 
 withhold so much of his rent as he should be enforced to pay, 
 and A. grants his reversion to C, and B. assigns the term to D. ; D. 
 may take the benefit of this covenant against C. for it runs with the 
 land (a). ^ 
 
 An assignee shall not be prevented of a benefit allowed by law, for 
 the avoidance of a rent(^). 
 
 At common law, no grantee or assignee of a reversion could take 
 the benefit or advantage of a condition for re-entry. It was therefore 
 enacted by stat. 32 H. 8. c. 34. that all persons grantees of the rever- 
 sion of any lands from the king, or grantees or assignees of any 
 common person, their heirs, executors, successors and assigns, shall 
 have like advantage against the lessees, ^c. by entry for non-payment 
 of rent, or for doing waste or other forfeiture, and the same remedy 
 by action only for not performing other conditions, covenants, and 
 agreements contained in the said leases, as the lessors or grantors 
 themselves had. 
 
 On this statute it is to be observed, 
 
 1. That as the words of the statute are against lessees, it does not 
 extend to covenants upon estates in fee or in tail, but only upon leases 
 made for life or years {c), 
 
 2. That an assignee of part of the estate of the reversion may take 
 advantage of the condition ; as if lessee for life be, ^c. and the re- 
 version is granted for life ; so if lessee for years, i!fc. be, and the 
 reversion is granted for years, the grantee for years shall take ad- 
 vantage of the condition in respect of the word " executors" in the 
 Act {d). 
 
 3. But a grantee of part of the reversion shall not take advantage of 
 the condition ; as, if the lease be of three acres, reserving a rent 
 upon condition, and the reversion is granted of two acres, the rent 
 shall be apportioned by the act of the parties, but the condition is 
 destroyed, for that it is entire and against common right : except in- 
 deed in the case of the king (<?). 
 
 4. Whoever comes in by the act of the party, as by bargain and 
 sale of the reversion, or by grant of the reversion in fee to the use of 
 A. is an assignee within the statute; as the bargainee in the one case, 
 and A. in the other (/). 
 
 But such as come in merely by act of law, as the lord by es- 
 cheat, or are in of another estate, shall not take benefit of the sta- 
 tute {g). 
 
 5. The grantee shall not take advantage of a condition before he has 
 given notice to the lessee, but he may of a covenant {h). 
 
 {a) Cro. Eliz. 863. {b) a Vern. 423. (<r) Esp. N, P. 393. Co. Lit. aij. a. 
 
 Cro. Eliz. 863. {d) Co. Lit. aij. a. W ^^^^' (/) Ibid. {g) Ibid. 
 
 (A) Cro. Jac. 476. 
 
 T 2
 
 276 Of Assignments and Under-Leases. [Chap. XI. 
 
 6. The grantee or assignee shall take advantage of such conditions 
 only as are incident to and for the benefit of the reversion ; as rent, 
 waste, repairs, making fences, scouring ditches, preserving woods, 
 and such like ; and not for the payment of any sum in gross, the 
 delivery of corn, wood, or the like. So, " other forfeiture" relates 
 to such things as are incident to the reversion and run with the 
 land (a). 
 
 7. The assignee of the lessor may maintain covenant against the 
 lessee after the lessee had assigned, and he had accepted rent from the 
 assignee, for such is within the statute (b). 
 
 So, an assignee of a reversion, who hath accepted rent from the 
 assignee of the term, may maintain covenant against the executor of 
 the lessee, or the assignee of the term for a breach of covenant 
 running vi'ith the land, though it be committed after the assignment of 
 the reversion (c). 
 
 But otherwise it is of a covenant In land, which is only created by 
 the law, or of a rent which is created by reason of the contract, 
 and is by reason of the profits of the land, wherein none is longer 
 chargeable with them than while the privity of estate continue with 
 them (d). 
 
 8. The surrenderee of a copyhold reversion may bring debt or cove- 
 nant against the lessee within the equity of this statute, for it is a 
 remedial law and no prejudice can arise to the lord [e). 
 
 yissignment by way of Mortgage. — With respect to assignments by 
 way of mortgage, being merely conditional, they are not considered 
 as an actual transfer of property, but as a security only for money. 
 
 So, if a lessee for years, with covenants to repair, assigns to y. S. 
 by way of mortgage, and y. 6'. never enters, equity will not compel 
 him to repair, though he had the whole interest in him ; and though 
 it was his own folly to take an assignment of the old term, when he 
 should have taken a derivative lease, by which means he would not be 
 liable at law (/"). 
 
 But a case occurs, where such an assignee, though he never entered, 
 and had lost his mortgage money, was by law compelled to pay 
 the rent, and having sued in equity could have no relief (^). And it 
 is now held that the mortgagee having the legal estate shall be liable 
 as assignee, whether in possession or not (Z»). 
 
 If mortgagor and mortgagee make a lease in which the covenants 
 for the rent and repairs, are only with the mortgagor and his assigns, 
 the assignee of the mortgagee cannot maintain an action for the 
 breach of these covenants, because they are collateral to his grantor's 
 interest in the land, and therefore do not run with it (i). 
 
 (o) Co. Lit. aij. 1). {li) % Show. 134. {c) Cro. Jac. 5Z2. (</) Ibid. S'^-l- 
 
 (f) I Salk. 185. (/) Douj;. 463. n. 1. a Vcrn. 475. {£) Ibid. 374. 
 
 (J)) Stone V. £v»iis. aiiU 82. (/) 3 T. R. 393. 
 
 8
 
 Chap. XL] Of Assig?wiefits and Uiider-Leases, 277 
 
 But if the tenant for a term, convey the term by way of mortgage, 
 and then join with the mortgagee in a lease for a shorter term, in 
 which the covenants for the rent and repairs are only with the mort- 
 gagor and his assigns, and the interests of the mortgagor and mort- 
 gagee become extinguished during the lease by the reversioner acquir- 
 ing their estates, still the mortgagor may maintain an action of cove- 
 nant against the lessee, the covenants being in gross (ci). 
 
 That which cannot be supported as an assignment shall be good as 
 an under-lease against the party granting it [b). 
 
 Under a proviso that all assignments of a lease shall be void, if not 
 enrolled, under-leases are not included {c). 
 
 An under-lease is not an assignment to the effect of working a 
 forfeiture under a proviso not to assign. 
 
 It has therefore become usual to insert a proviso in leases, that the 
 lessee, ^c. shall not let, set, transfer, or assign over, or otherwise 
 part with the whole or any part of the premises [d). 
 
 An under-lease, made by a lessee for years, determinable on a fu- 
 ture day certain, and to commence immediately on his death, is good, 
 he dying within the time (e). 
 
 Therefore a man possessed of a term for twenty years, may grant 
 the lands for nineteen years, to commence after his death, and it will 
 be good for so many of the twenty years as shall be unexpired at the 
 time of his death {f). 
 
 It was formerly held that an action on the case would lie by a 
 lessee for years against his under-tenants for so negligently keeping 
 his fire that the premises v/ere burned down : though not against a 
 tenant at will (^). 
 
 But by Stat. 14 G. 3. r. 28. s. 85. it is enacted, that no action, 
 suit, or process whatever, shall be had, maintained, or prosecuted, 
 against any person in whose house, chamber, stable, barn, or other 
 building, or on whose estate any fire shall accidentally begin, nor 
 shall any recompence be made by such person for any damage suffer- 
 ed thereby, any law, usage, or custom to the contrary notwithstand- 
 ing. 
 
 The landlord or original lessor cannot sue an under-tenant on a 
 covenant for rent contained in the original lease (h). 
 
 An under-tenant, whose goods were distrained and sold by the 
 original landlord for rent due from his immediate tenant, cannot 
 maintain an action for money paid to the use of the latter: for im- 
 mediately on the sale under the distress, the money paid by the 
 purchaser vested in the landlord, in satisfaction of the rent, and never 
 was the money of the under-tenant (/). 
 
 {a) 3 T. R. 678. (b) Doug. 188. n. (0 Ibid. 96. 3 Wils. 134. 1 Bl, R. 767. 
 
 Ibid. 57. 184. {d) % T. R. 425. (0 Cro. Jac. 459. (/) a Str. 737. 
 
 Cf) 4 Mod. 9. laMod. ij. (6) Doug. 183. (i) ii East, 52.
 
 278 Of Changes happening [Chap. XI 1. 
 
 An under-lease of the whole term amounts to an assignment (a). 
 
 But if the lessor reserves the rent to himself on granting over, It 
 Is an under-lease and not an assignment, though he parts with the 
 whole term {b). 
 
 An action will lie by the assignee of a reversion for years against 
 an under-lessee on a covenant to leave the premises in repair {c). 
 
 An outgoing tenant having agreed to assign the remainder of his 
 term to the incoming tenant, the sheriff, before an actual assignment 
 made, may, under an execution against the outgoing tenant, sell his 
 interest in such remaining term, and set upon it the same value the 
 incoming tenant had agreed to give for it [d). 
 
 {a) I Ld. Raym. 99. {b) l Str. 404. Sed vide ante. (c) Cro. £liz. 596. 
 
 (J) I Mars. lo. 
 
 CHAPTER XII. 
 
 Of Changes happening hy Marriage^ Bankruptcy., Insol- 
 vency, or Death : wherein of Assignees, Devisees, Exe- 
 cutors, and Administrators, and ifi what Cases they are 
 hound by, and may take advantage of Covenants. 
 
 /CHANGES by Marriage. — The marriage Is a gift In law to the 
 ^ husband of all the wife's chattels real, as a term for years in right 
 of^s wife ; so of estates by statute-merchant, statute-staple, elegit, 
 ^c. and of these he may alone dispose, or forfeit, or they may be 
 extended for his debts (a). 
 
 But if he makes no disposition of them In his lifetime, they survive 
 to his wife, and therefore he cannot devise them. For the husband 
 is only possessed of a term in her right ; and the term or legal interest 
 continues in her [l>) : for the law does not love that rights should be 
 destroyed ; but, on the contrary, for the supporting of them invents 
 notions and fictions, as abeyance, isfc. (c). 
 
 So a feme covert is of capacity to purchase of others without the 
 consent of her husband, and though he may disagree and divest the 
 estate, yet if he neither agree nor disagree, the purchase is good (d). 
 
 If a woman, lessee for years, takes husband, who afterwards pur- 
 chases a new lease to them both for their lives of the same lands, this 
 is a surrender in law of the first term, and shall bind the wife ; be- 
 cause it amounts to an actual disposition thereof, which the husband 
 liad power to make (c). 
 
 (u) Eac Abr. lit. I5.non et Fi'inc. (C. 2.) (/) Ibid. (, ) I Ld. Riiyni. 515. 
 
 Co. I. it. 342. {</) Ibid. 3. a. .536. b. (f) liii:. Ahv. nt ante.
 
 Chap. XII.J hy Marriage, ^c. 279 
 
 So, if a mail marries a woman v/ho is cestui que trust of a term, the 
 husband may as well dispose of this trust as if the legal interest was 
 in her {a). But not if the trust was created with his privity and con- 
 sent (b). 
 
 Even where the husband was possessed of a term in right of his 
 wife from whom he was divorced h mensd id' thoro ; he was restrained 
 from selling it [c). 
 
 But such term, whereof the husband is possessed in right of his 
 wife, may be extended for the debts, or forfeited for the crimes of 
 the husband ; for these are legal dispositions thereof, which shall 
 bind the wife id). 
 
 But if a husband should grant a rent, common, ^c. out of such 
 term and die, this would not bind the wife surviving, because the 
 term or possession itself being left to come entire to the wife, all in- 
 termediate charges or grants thereout by the husband determine with 
 his death ; for the title of the wife to such term has relation to the 
 time of their intermarriage, and so is paramount to all collateral charges 
 or grants made thereout by the husband after. 
 
 So, a grant by the husband of the herbage or vesture of such land 
 which he held in right of his wife for years, will be void after 
 his death j because they are part of the land itself, and not collateral 
 to it {e). 
 
 If the husband and wife be evicted of a term 'which he hath in 
 right of his wife, and the husband brings an ^ejectment in his own 
 name, and hath judgment to recover, this makes an alteration in the 
 term and vests it in the husband ; because, not making his wife a 
 party to the recovery, he takes the whole wrong to be done to himself, 
 and consequently if he recovers, it must be by virtue of that right 
 whereof he was disseised. 
 
 An estate by the curtesy is subject to the charges of the wife : so 
 that if a woman, tenant in-tail, acknowledges a statute and afterwards 
 marries, has issue, and dies, the lands may be extended in the hands 
 of the husband holding as tenant by the curtesy [f). So, where a 
 husband is but tenant by the curtesy, and has only an interest 
 for life in the wife's estate, he cannot affect that estate without her 
 joining (^). 
 
 Husband and wife make a lease for years by indentui'e of the wife's 
 lands reserving vent ; the lessee enters ; the husband before any day 
 of payment dies, the wife takes a second husband, and he at the day 
 accepts the rerit and dies : it was holden, that the wife could not now 
 avoid the lease, for by her second marriage she transferred her power 
 of avoiding it to her husband, and his acceptance of the rent binds 
 her, as her own before such marriage would have done : for he, by 
 
 (a) I Veru. 7. 18. 3 Atk. 435- (*) Ibid- (0 9 Mod. 44- 
 
 {d) -Bac. A.hi. ut ante. [/)\h\L (/) Dyer, ji-b. 12. (f) 3 Atk. 435. 
 
 7
 
 280 Of Changes happeiiing [Chap. XII. 
 
 the marriage, succeeded into the power and place of his wife, and 
 what she might have done, either as to affirming or avoiding such 
 lease before marriage, the same may the husband do after the 
 marriage (fl). 
 
 As the wife's acceptance of rent or fealty, ^c. will make good and 
 unavoidable leases for years, made by her and her husband at common 
 law, or by her husband solely, if they be by indenture or deed-poll ; 
 so, if the wife die before her husband, the same election and power 
 of affirming or avoiding such leases descends to her issue or heir : for 
 such leases are good, till those who succeed to the estate defeat and 
 avoid them by their disagreement thereto {b). 
 
 Therefore where a woman tenant in- tail, having issue by a former 
 husband, after his death married a second husband, and they by in- 
 denture joined in a lease for years of the wife's lands, rendering rent, 
 and then the wife died without issue by the second husband, so that 
 he was not entitled to be tenant by the curtesy, it was holden, 
 that till the issue by the first husband entered, this lease remained 
 good (r). 
 
 So, where a man seised of land in right of his wife, makes a lease 
 for years, rendering rent, and then his wife dies without issue by 
 him, whereby he is not tenant by the curtesy, but his estates deter- 
 mined ; yet he may avow for the rent till the heir hath made his 
 actual entry, because the lease was at first good, and drawn out of 
 the seisin of the wife ; and therefore, till the entry of the heir, re- 
 mains good between the lessor and the lessee, so that the lessee may 
 maintain an action of covenant, and the lessor distrain and avow for 
 the rent, till the heir hath entered {d). 
 
 If a term of years be granted to a feme covert and another, or if a 
 feme sole and another are joint-tenants of a term of years and the 
 feme takes husband, yet in both cases the joint-tenancy still continues, 
 for the marriage makes no severance or alteration of it, but gives the 
 husband the same power his wife had before, by an actual disposition 
 of her moiety to break the joint-tenancy, and bind his wife's interest 
 therein ; but without such disposition, the joint-tenancy continues, 
 and if the husband dies, tlie whole shall go accordingly [e). 
 
 So, if such joint-tenants are ousted of the term, the wife shall join 
 with the husband and the other joint-tenant in ejectment, and the wife 
 shall have judgment to recover as well as the husband : and if in such 
 case before any actual disposition made by the husband, his wife die, 
 the whole term shall go to the surviving joint-tenant and no part 
 thereof to the husband : because, though the husband, if he survives, 
 is by law to have all chattels real and personal of his wife's, and this 
 term was a chattel real, yet the title of the other joint-tenant to have 
 
 ((j) Uac. Abr. tit. 13aioii aiul rtmc. (I.) i Salk. 4. (A) Bac. Ahr. «/ <j«/f. 
 
 U) ll)id. (-y) ll))d. {,) Bac. Abr. lit. Baron ami I'cmc. (I.)
 
 Chap. XII.] hij Marriage, S^'c. 281 
 
 the whole by survivorship, coming at the same instant and being the 
 elder title, shall prevail against the husband (a). 
 
 Although by the marriage, the husband and wife become one petr 
 son in law, and therefore such an union works an extinguishment or 
 revocation of several acts done by her before the marriage, yet in 
 things which would be manifestly to the prejudice of both husband 
 and wife, the law does not make her acts void (^). 
 
 Therefore, if a feme sole makes a lease at will, or is lessee at will, 
 and afterwards marries, the marriage is no determination of her will, 
 so as to make the lease void ; nor can she herself without the consent 
 of her husband determine the lease in either case (<:). 
 
 The husband, as head or governor of the family, has an absolute 
 power over the chattels real and personal of which he is possessed in 
 right of his wife, to dispose of them as he thinks proper, and no act 
 or concurrence of her's is of any avail, either in confirming or con- 
 trouling such disposition (r/). 
 
 Therefore, if an express condition (as to pay rent) be annexed to 
 the estate of a woman, who takes husband, the laches of the husband 
 to perform the condition, loses the estate for ever [e). 
 
 But the laches of the husband to perform a condition in law, which 
 does not require skill or confidence, (as not to alien in fee) does not 
 prejudice his wife {/). 
 
 The real estate however of the feme is under a different regulation 
 from that by which her chattels real and personal are governed, for it 
 is under the power of the husband no longer than during the cover- 
 ture, and therefore any disposition of it made by him alone may be 
 defeated ; also, all charges laid on it by him, fall off with his death (g). 
 
 But the husband during coverture may take the rents and profits 
 of the whole estate of his wife : and as he has the sole disposition of 
 all interests of his wife, he may, for an interest which vests in the 
 wife, or accrues to her during coverture, either sue alone, or with his 
 wife (A). 
 
 If a feme sole hath right to have common for life, and she takes 
 husband, and he is hindered in taking the common, he may have an 
 action alone without his wife, it being only to recover damages (/'). 
 
 But if baron and feme are disseised of the land of the feme, they 
 must join in an action for the recovery of the land (k). 
 
 If ^. demise a house to B. for years, and B. covenants to repair 
 the said house during the term, and afterwards yf, grants the reversion 
 to baron and feme, ^c. the baron may have an action alone upon this 
 covenant (/). 
 
 (-1) Bac. Abr. tit. Baron and Feme. (I.) (b) Ibid. (E.) (c) Ibid. 
 
 (</) Bac. Abr. tit. ut ante. (I.) (e) Co. Lit. 246. b. (/) Ibid. 133. b. 
 
 {g) Bac. Abr. ut ante. {I) Com. Dig. tit. Baron and Feme. (O.) (/) Bac. Abr. tit. 
 
 ut ante. (K.) {k) Ibid. (/) Ibid, in n.
 
 282 Of Changes happening [Cliap. XII. 
 
 But if lands be conveyed with a covenant for further assurance to 
 husband and wife, she must be joined with him in an action for the 
 breach of such covenant [a). 
 
 In those cases where the debt or cause of action will survive to the 
 wife, the husband and wife are regularly to join in the action ; as in 
 recovering debts due to the wife before marriage, in actions relating to 
 her freehold or inheritance, or injuries done to her person {b). 
 
 In other cases, as in actions for a profit accrued during the coverture 
 to the husband in right of his wife, in which the husband may sue 
 alone or join with his wife, it is the more sure mode to join {c). 
 
 If there be a lease by the wife dum sola, payment of the rent ought 
 to be to the husband ; and payment to the wife without the husband's 
 order, though there be no notice of the marriage, shall not discharge 
 the lessee [d), [For other matter relative to this subject see ante C. Ill, 
 X. 12.] 
 
 Of Dower. — A woman is entitled to dower of a reversion expectant 
 on a term for years. Thus if a man, either before or after marriage, 
 make a lease for years reserving rent, his wife will be entitled to a 
 third of the land for her dowry, and also to a third of the rent, as 
 incident to the reversion (e). 
 
 The widow holds her dower discharged from all judgments, leases, 
 mortgages, or other incumbrances, made or created by her husband 
 after the marriage (jT). 
 
 Dower is even protected from distress for a debt due to the crown, 
 contracted during the marriage ; and if the lands are distrained upon, 
 the doweress may have a writ to the sheriff commanding him not to 
 distrain, or to restore the distress, if any be taken (^), 
 
 A rent issuing out of land whereof a woman is dowable may be as- 
 signed in lieu of dower ; and if a tenant in tail assign a rent out of 
 the land intailed to a woman entitled to dower out of such estate 
 tail, not exceeding the yearly value of her dower, it will bind the 
 issue [h). 
 
 But rent assigned in lieu of dower, as it comes in lieu of land, ought 
 to be absolute as the assignment of the land itself (r). 
 
 A jointress is not so favoured in law as a doweress. But the Court 
 of Chancery will set aside a term of years fti favour of a jointress, 
 though it will not do so in favour of a woman entitled at law to 
 dower ; because a jointress has a fixed interest by the agreement of 
 the party (k). 
 
 Of Cbatigcs by Bankruptcy. — The legal right that the landlord has to 
 
 (<i) Cro. Car. 505. (i) Bac. Abr. ut ,uitt. (c) Com. Dig. tit. Baron and reme. (X.) 
 
 (</) Ibid. (O.) (f) 1 Inst. 32. a. i Cruise's Dig. tit. 6. c. 3. s. 10, 11. 
 
 (/) I Inst. 46.8. 4 Rej). 65.a. Cruise's Di§ tit. 6. c. 3. (g) 1 Inst. 31. a. F. N. B. IJO. 
 
 Cruise ul anu. s. 41. (A) i Roll. Abr. 683. («) Cio. Eliz. 4J0. {t) Piec in Ch. j. 
 
 1 Ciuiot'sDig. 111. 7. J. 10.
 
 Chap. XI 1. 3 Inj Marriage J &;c. 283 
 
 distrain the goods of his tenant for rent in arrear, is not affected by 
 the tenant's bankruptcy while the goods remain on the premises. 
 
 For a landlord is considered in a higher degree than a common cre- 
 ditor, and it would be hard to preclude him from distraining, where 
 there are goods on the premises {a). 
 
 The issuing a commission of bankrupt therefore against a tenant, 
 and the messenger's possession of his goods, does not hinder the land- 
 lord from distraining for rent j but while upon the premises, they are 
 still liable {b). 
 
 Money paid for rent to a landlord who was about to distrain, by a 
 trader after an act of bankruptcy committed, is not recoverable back 
 by the assignees {c). 
 
 The landlord may distrain the goods for his entire debt, even after 
 assignment or sale by the assignees, if the goods are not removed : 
 the reason is, because no provision is made in the case of bankruptcy 
 by the statute (8 Ann. c. 14,) which gives the landlord a year's rent 
 on executions {d). 
 
 But it is a principle that a landlord has no lien in such case after 
 the goods are removed from the premises {e). 
 
 Therefore if the landlord neglects to distrain, and suffers the goods 
 to be sold by the assignees and removed from off the premises, he can 
 only come in on an average with the rest of the creditors {f). 
 
 Also, if landlord prove his debt for rent under the commission and 
 swear that he has no security, he thereby waives, it should seem, his 
 right to distrain ; and the vendee of such goods under the assignee 
 will be entitled to the goods [g). 
 
 So, a landlord who petitions to be paid the rent in arrear at the 
 time of the commission being taken out, seven years after the effects 
 had been sold by the assignees, was considered only as a common 
 creditor, and compelled to come in pro rata, his demand being a stale 
 one (^). 
 
 A mortgagee who has paid the arrears of rent on a bankrupt's 
 estate, unless he has an order of the Court of Chancery to stand in 
 the landlord's place, shall not be preferred to the creditors under the 
 commission (/). 
 
 Where on goods being ^Id under a distress for rent, a balance re- 
 mained in the hands of the constable, the tenant or his representative 
 could only come in for his proportion with the other creditors : if any 
 thing had remained in specie it might have been different, but in this 
 case the money was embezzled. 
 
 Assignees are not entitled to the benefit of a covenant for the re- 
 newal of a lease {k). 
 
 (a) I Atk. 105. {i) Ibid. 104. f (c) 5 Esp. 200. (</) Ibid. ICJ. 
 
 (f) Cooke's B. L. 223. (/)iBro. 427. i Atk. 102, 103. (^j-) Ibid. 104. 
 
 (/j) Ibid. 103. 0) Ibid. (i) 2 Vcrn. 96.
 
 2S4 Of Chrmges happening [Chap. XII^ 
 
 The commissioners cannot assign a lease wherein a condition is 
 contained, making the lease void on the tenant committing an act of 
 bankruptcy whereon a commission shall issue : for such a proviso is 
 legal, and the landlord may re-enter by virtue thereof (ij). 
 
 It has been determined, however, that the commissioners may as- 
 sign a lease granted to a bankrupt, in which there is a proviso that 
 the lessee, his executors, or administrators shall not assign without the 
 lessor's consent in writing (^). 
 
 An assignee of a bankrupt, a devisee, and a personal representative, 
 and one who purchases a term from the sheriff under an execution, 
 are assignees in law to the purpose of being liable to actions on a co- 
 venant for rent in a lease to the bankrupt's devisor or intestate (c). 
 
 But the assignees of a bankrupt are not liable for the rent of pre- 
 mises assigned to them by the commissioners, unless they take pos- 
 session {d). 
 
 And where the assignees, having allowed the bankrupt's effects to 
 remain upon the premises occupied by him nearly a twelvemonth after 
 the bankruptcy, for the purpose of preventing a distress paid the ar- 
 rears of rent due, at the same time Intimating to the landlord that 
 they did not mean to take to the lease unless it could be advantageously 
 disoosed of ; and the effects v/ere soon after sold and removed from the 
 
 A. " 
 
 premises, the lease at the same time being put up for sale by order of 
 the assignees, but there were no bidders for it ; and they omitted to 
 return the key to the landlord (who did not ask for itj for nearly four 
 months after, but made no other use of the premises : — It was held 
 that under these circumstances they were not liable to the landlord as 
 assignees of the lease [e). 
 
 But where the assignees of a bankrupt who was lessee of a pas- 
 ture-ground, being chosen on the 8th of the month, allowed his cov/s; 
 to remain upon the demised premises until the i oth, and ordered them 
 to be milked there ; it was held that they had thereby taken possession 
 of the premises i and become tenants to the lessor i^f). 
 
 And where the assignees had once taken possession of the premises, 
 they became chargeable with the covenants in the lease, although the 
 bankrupt's effects were upon the premises, and they delivered up the 
 keys Immediately after the effects were sold [g). 
 
 Where in an action of replevin between the assignees of a bank- 
 rupt (formerly tenant to A.) and the bailiff who distrained, one issue 
 was, whether the assignees were tenants to ^. ; a verdict against the 
 assignees on such issue is afterwards conclusive evidence as to the te- 
 nancy of the assignees in an action brought by A. for rent (h). 
 
 Until the assignees do some act shewing their acceptance of pre- 
 
 (a) a T. R, 133. 15 Ves. J. z68. [b) Cooke's B. I>. 370. Ambler, 480. 
 
 (c) Doiig. 184. (7) I Esp. U. 233. Penkc's Ca. 2138. all. Bl. 319. 
 
 {r) 3 Camp. 340. (/) 4 Camp. 368. {^) i B. & A. 303. (i) 1 Staik. 347.
 
 Chap. XII.] hy Marriage, &;c. 285 
 
 mises held by the bankrupt under lease, the term remains in the bank- 
 rupt, and he is liable to the payment of rent accruing due subsequent 
 to the bankruptcy [a). 
 
 The assignees of a bankrupt are not liable to an action of covenant 
 for rent in arrear, accrued subsequent to the bankruptcy, of premises 
 which had been the bankrupt's {b). 
 
 Debt on the reddendum in a lease, will not lie against the lessee 
 for rent accrued after his bankruptcy, when he had ceased to occupy 
 the premises, and the assignee is in possession under the commis- 
 sioners' assignment (r). But the bankrupt's lessee, though out of 
 possession, is still liable upon his covenant to pay the rent [d). 
 
 Whatever doubt may have been at one time entertained, as to the 
 bankruptcy of the lessee being a bar to an action of covenant brought 
 against him (^), it is now settled that the bankruptcy of the defend- 
 ant cannot be pleaded in bar to an action of covenant for rent: for 
 the 34 H. 8. c. 4. j. i . only assigns the interest of the bankrupt in 
 the land, but does not destroy the privity of contract between the 
 lessor and lessee, wherefore an action of covenant remains after the 
 estate is gone, though generally speaking it is otherwise of the action 
 •of debt. Covenant is founded on a privity collateral to the land {f). 
 A covenant of this kind is mixed; it is partly personal and partly de- 
 pendent on the land ; it binds both the person and the land : and this 
 brings the case within the principle of Mayor v. Steward (g)y (in 
 which case the dictum of Mr. J. Tatesy that as the bankrupt was 
 divested of his whole estate, and rendered incapable of performing 
 the covenants, it would be a hardship upon him if he should still re- 
 main liable to it, when he is disabled from performing it, was clearly 
 extra-judicial, though as proceeding from that excellent lawyer, it 
 was deserving of great weight.) 
 
 A right of action therefore, on a breach of covenant, not secured 
 by a penalty, and where the damages to be recovered are uncer- 
 tain, is not barred by the certificate of the defendant, ?vho became a 
 bankrupt after the covenant was broken (>6). 
 
 Indeed, it is extremely clear, that where a bankrupt has taken a 
 lease and entered into covenants for payment of rent and for repair- 
 ing, £ffr. though the lease is taken from him and blended with the 
 general mass of his property and divided amongst his creditors, yet 
 his certificate will not deliver him from his liability to perform the 
 covenants contained in that lease (i). 
 
 Changes by Insolvency. — Respecting the change made in the situation 
 of landlord or tenant by the insolvency of either of them, it is to be 
 observed that all interests in lands, and chattels real, must be in- 
 
 (a) I B. & A. 593. (l)) I Esp. R. 383. (c) 8 East, 314. in note. 
 
 (rf) I H. Bl. 433. 4 T. R. 94. (0 I T. R. 86. (/) i H. Bl. 433- 4 T. R. 94. 
 
 {g) Z Burr. 2439- ('■■) 6 T. R. 489. (/) 7 T. R. 580.
 
 286 Of Changes happening [Chap. X I L 
 
 serted in the schedule which is to contain an enumeration of the in- 
 solvent debtor's estate and effects. 
 
 A conveyance to a creditor of an insolvent debtor's estate by the 
 clerk of the peace does not vest the estate in such creditor by relation 
 either to the date of the order or of the conveyance, but only from 
 the actual execution of such conveyance by the clerk of the peace. 
 Therefore, such creditor cannot recover in ejectment upon a demise 
 laid before the execution, though after the estate was out of the in- 
 solvent debtor, and the order was made to convey the same to the 
 lessor. Had another demise by the clerk of the peace been laid, it 
 would have obviated any inconvenience which could have arisen in 
 this case from the lessor's ignorance of the time at which the assign- 
 ment was actually executed (a). 
 
 Where there is a bond with a penalty, and also a deed of covenant, 
 ^nd the tenant takes the benefit of an Insolvent Act, whereby the 
 bond is discharged, he is still liable on any future breach of his 
 covenant ; unless specially saved by the statute [b). 
 
 Changes by Death. — ^The alteration that is effected by the death of 
 the landlord or tenant has reference to a devisee, or an executor or 
 administrator; for as to the heir, he is out of the question, as such, 
 with respect to a chattel interest. 
 
 By the statutes 32 and 34 //, 8. r. i. j-. 5. a man may devise all his 
 lands, tenements, and hereditaments, reversions and remainders. 
 
 Therefore, if one devise a reversion after an estate for life, or in 
 tail, and that comes to his possession, the land passes : and a general 
 residuary clause in a will carries a reversion. 
 
 So, by a devise of ground-rent on leases for years, the reversion 
 passes. So, a bequest of " leasehold ground-rents in S." passes the 
 reversionary leasehold interest as well as the reserved rent (c). 
 
 If one bequeath his indenture of lease, his whole estate in the 
 lease passeth. So, if a termor of a house or land bequeath the same 
 to B. without)- expressing how long he should have it, he shall have 
 the whole term and number of years {d). 
 
 Under a bequest of the testator's interest in leaseholds, a renewed 
 lease obtained by the executrix was held to pass [e). But a renewed 
 lease does not pass under the words " lease or premises" {f). 
 
 Of Devisees. — A devisee of the lands is entitled to all those chattel 
 interests which belong to the heir : and in one respect he has an ad- 
 vantage to which the heir is not entitled. 
 
 Thus it has been holden, that if A. seised in fee of lands sow, and 
 devise it to B. for life, remainder to C. in fee, and die before sever- 
 ance, B. shall have the emblements, and not the executor of A. Or 
 that if B. die before severance, his executor shall not have them, 
 
 (a) a East's R. 257. (i) Doug. 93. (<r) % Str. 1020. 1 3r. R. 76. 
 
 {J) Went. Off. Ex. 351. (0 15 Vcs. J. 2.-i6. (/) 16 Vrs. J. 197, 199-
 
 Chap. XII.] hy Marriage^ 8^0. 287 
 
 but they shall go to him in remainder. Or that If the devise be only 
 to B. and B. die before severance, there his executor shall have 
 them {a). 
 
 A devisee of the goods, stock, and moveables, is entitled to 
 growing corn in preference both to the devisee of the land, and the 
 executor {b). 
 
 A devisee is an assignee in law, and as such is liable to an action 
 on a covenant in a lease to pay rent, or on any other covenant that 
 runs with the land (c). 
 
 As he is liable to covenants that regard the reversion, so it is pre- 
 sumed he is capable of maintaining an action for the breach of such 
 covenants ; for by the common law, upon a covenant in law, the as- 
 signee of the estate shall have an action {d). 
 
 A devisee therefore, is in the predicament of an ordinary assignee, 
 by whom an action lies upon every covenant that concerns the land ; 
 as to pay rent, not to do waste, ^r. 
 
 The devisee of the equity of redemption, (the legal estate being in 
 a mortgagee) is !iot liable in covenant as assignee of all the estate, 
 right, title, and interest of the original covenantor {e). 
 
 An ' action of covenant does not He upon the stat. of 3 W. & M. 
 c. 14. against a devisee of land to recover damages for a breach of co- 
 venant made by the devisor, but the remedy thereby given, is con- 
 fined to cases where debt lies i^f). 
 
 Executors and Administrators. — With respect to executors and ad- 
 ministrators, the executor or administrator shall have by virtue of his 
 executorship or administration, all the chattels real and personal of 
 the testator ; as well those that are in possession, as leases for 
 years of land, rent, common, or the like, corn growing or cut, trees 
 and grass, cut and severed, as also those that are in action, as right 
 and interest of execution upon judgment, statutes, ^c. [g). 
 
 So, the executor or administrator of the lord shall have the fines 
 assessed upon the tenants upon their admittances in the lord's 
 time {g). 
 
 So, if I make a lease for life rendering rent, and the rent is be- 
 hind, and then I die ; in this case the arrearages of rent due to me In 
 my lifetime shall go to my executor or administrator in the nature of 
 a chattel [g). 
 
 So, if a rent be granted out of land to me in fee-simple, fee-tail, 
 for life or years, and It be not paid to me in my lifetime, these ar- 
 rearages shall go to my executor or administrator, and not to any 
 other {g). 
 
 So, also, if a parson have an annuity in fee in right of his church, 
 
 {a) Toll. L. of Ex. & Ad. 157. {b) Ibid. (r) Doug. 184. {d) Com. Dig. tit. 
 
 Covenant. (B. 3.) (f) 8 East, 487. (/) 7 East, ia8. {g) Shep. Touch. 468,
 
 288 Of Changes liappcning [Cliap. XII. 
 
 and it be behind and the parson die : in this case the executor or ad- 
 ministrator, not t!ie successor of the parson, shall have the ar- 
 rearages [a). 
 
 If I be seised of land and possessed of a flock of cattle, and let it 
 to another for years, and he covenant by the lease to pay me and my 
 wife, our heirs and assigns, loo/. per aim. during the term ; in this 
 case, after my death, and my wife surviving me, her executor or ad- 
 ministrator, and not my heir, shall have this payment («). 
 
 So, if one make me a lease of land first for years, and then grant 
 me the trees for a number of years, to begin after the end of the term 
 of the land ; I have the trees in the nature of a chattel, and if I die, 
 my executor or administrator shall have them [a). 
 
 So, if a lease for years of land be granted to me and my heirs, or 
 to me and my successors, and I die ; my executor or administrator, 
 and not my heir, shall have the term [a). 
 
 The same law is, if a covenant or an obligation be made to me 
 and my heirs : for in these cases, this is still a chattel in me that shall 
 go to my executor or administrator, and he only shall take advantage 
 of it : and if my heir or successor happen to get the deed, the execu- 
 tor or administrator may recover it from him (a). 
 
 If a lease be made to me for twenty years, without naming my ex- 
 ecutors or administrators or assigns ; in this case, if I die, my exe- 
 cutor and administrator, notwithstanding, shall have it during the 
 term {b). 
 
 So, if a lease for years be made to a bishop and his successors, 
 and he die, his executor or administrator, not his successor, shall 
 have it ib). 
 
 If the lessee for life make a lease for years absolutely, this in law is 
 a lease for so many years if the life so long live, and shall go to the 
 executor or administrator after his death {b). 
 
 In the case of a tenancy from year to year as long as both parties 
 please, if the tenant die intestate, his administrator has the same 
 interest in the land which his intestate had : for whatever chattel 
 the intestate had muse vest in his administrator as his legal repre- 
 sentative ic). 
 
 The charters and evidences that concern any of my chattels which 
 my executor or administrator is to have, shall go with the same chat- 
 tels. — So also any charters whatsoever, if they be pledged to me for 
 money, shall go to my executor or administrator until the money be 
 paid [d). 
 
 Those deeds and evidences, that belong to the heir as incident to 
 the inheritance, shall not go to the executor or administrator {e). 
 
 {a) Shcp. ToulIi. 469. (b) Ibid. 470. (0 3 T. R. 16. 
 
 {d) .Shci). 'I'oucli. 469. (f) 8 T. K. 592. & 2 El. Com. 428. 3 Ves. J. 212.
 
 Cliap. Xn.] by Marriage, &;c. 289 
 
 The executor or administrator shall not have the grass and trees 
 growing on the ground, no more than the soil or ground Itself where- 
 on they grow (a). 
 
 Neither is an administrator or executor entitled to pales, walls, 
 stalks, fish in ponds, deer, or conies in parks, pigeons in pigeon- 
 houses, or the like [b). 
 
 If a lease be made for life or years of land, whereon a house is 
 standing, or timber is growing, and the house is prostrate or the tim- 
 ber is cut or fallen down (by whomsoever, or by what means soever 
 it be ;) the materials of this house and this timber are now become a 
 chattel : and therefore, if the lease be without Impeachment of waste, 
 it shall go to the lessee, and after his death to his executor or admi- 
 nistrator ; but if the lease be otherwise, it shall go to the lessor, and 
 after his death to his executor or administrator. — But, if the timber 
 be cut for reparation only, or the lessee v/ill employ the materials of 
 the house to build it again, and the lease continue, it may be so em- 
 ployed, and then the executor or administrator of the lessor may 
 not take it (c). 
 
 An executor or administrator regularly shall charge others for any 
 debt or duty due to the deceased, as the deceased himself might have 
 done ; and the same actions which the deceased might have had, 
 the same actions for the most part the executor or administrator may 
 have also (^d). 
 
 Therefore he may have an action of account, upon the case, or 
 assumpsit^ for use and occupation of his testator's or the intestate's 
 premises e). 
 
 So, an action of ejectment will lie by the executor or administrator 
 for an ejectment of the testator out of a term [f ). 
 
 An action of debt also, for rent behind in the lifetime of the de- 
 ceased, may be brought by his executor or administrator [g] ; for if 
 any rent or arrearages of rent be due to me upon a grant of rent out 
 of my land to me, or reservation of rent upon any estate made by me 
 of land ; in these cases, my executor or administrator may have an 
 action of debt for this rent, or he may distrain for it, so long as the 
 land that is chargeable with the rent, and out of which it issues, is 
 in his possession that ought to pay it, or in the possession of any one 
 that claims by or under him (Jj). 
 
 As an executor or administrator shall regularly charge others for 
 any debt or duty due to the deceased, so shall he be charged by others 
 for any debt or duty due from the deceased, as the deceased himself 
 might have been charged in his lifetime, so far forth as he hath any 
 of the estate of the deceased to discharge the same (i). 
 
 Therefore, if a lease for years be made rendering rent, and the 
 
 (/«) Shep. Touch. 169, (i) Ibid. («) Ibid. 471. (rf) Ibid. 481. (^) Ibid. . 
 (/) Ibid. {£) Ibid. {h) Ibid. 483. (.) Ibid. 
 
 u
 
 290 Of Changes happening [Chap. XIL 
 
 rent is behind, and the lessee die ; in this ,case the executor or admi- 
 nistrator of the lessee shall be charged for this rent {a). 
 
 So, also, if a lessee for years assign over his interest and die, his 
 executor or administrator shall be charged with the arrearages before 
 the assignment, but not with any of the arrearages due after the 
 assignment {b). 
 
 For if the testator die in possession of a term for years, it shall vest, 
 as before mentioned, in the executor ; and although it be worth 
 nothing he cannot waive it, for he must renounce the executorship m 
 totOf or not at all {c). But this is to be understood only where the 
 executor has assets, for he may relinquish the lease, if the property 
 be insufficient to pay the rent; but in case there are assets to bear the 
 loss for some years, though not during the whole term, it seems the 
 executor is bound to continue tenant till the fund is exhausted, when, 
 on giving notice to the lessor, he may waive the possession. If, 
 however, he enter on the demised premises, as by his office he is 
 bound to do, the lessor may charge him by action of debt as assig- 
 nee in the debet and detinet for the rent incurred subsequent to his 
 entry [d). 
 
 If the profits of the land exceed the amount of the rent, as the 
 law prima facie supposes, such of the profits as are sufficient to make 
 up the rent shall be appropriated to the payment of the lessor, and 
 cannot be applied to any other purpose. Therefore, if in such case 
 the lessor bring an action against tiie executor for the rent, he can- 
 not plead plene administravity for that plea would confess a misappli- 
 cation of the profits ; since no other payment out of them can be 
 justified till the next be answered (e). 
 
 On the other hand, the profits of the land may be inadequate to the 
 rent. In a variety of cases, they may be easily supposed insufficient 
 for a given period, although the lease ir-^y on the whole be benefi- 
 cial ; as in respect to rent for the occupation of premises from Mi- 
 chaelmas to Lady Day especially, where almost the whole profit is 
 taken in the summer; as in the case of a lease of tithes, or of meadow 
 grounds, which are usually flooded in the winter. So, the profits 
 for a series of years may be less than the amount of the rent, al- 
 though the lease for the whole term may be of no small value ; as in 
 the case of a lease of woods, which are fellable only once in eight 
 or nine years, and the felling has been very recent [e). 
 
 In these and the like instances, the executor is personally liable 
 only to the extent of the profits, and for such proportion of the rent 
 as shall exceed the profits, is chargeable merely in the capacity of 
 executor, or, in other words, as far only as he has assets: and in 
 such case, to an action brought by the lessor against him in the debet 
 
 {a) .Shrp. 'JoiK h. 483. {!,) Ibid. (0 Toll. I,, of F.k. & Ad. 109. 
 
 {J) Wri.t. (jn. of I'x. 120. (.; 'I'oll. L, (,( Ex. k Ad. 230.
 
 Chap. XII.] hy Marriage, 8^c, 291 
 
 and detinet, he must disclose the matter by special pleading, and pray 
 judgment whether he sliall be charged otherwise than in the detinet 
 only, for more than the actual profits [a). 
 
 Thus the profits of the land are to be applied by the executor, in 
 the first place, to the discharge of the rent, and if that fund prove 
 insufficient, the residue of the rent is payable out of the general as- 
 sets, and stands on the same footing with other debts by specialty : 
 and this whether the rent reserved be by lease, in wriiing, or by 
 parol [b). 
 
 But an executor or administrator shall not charge another, or have 
 any action against him for a personal wrong done to the testator, 
 when the wrong done to his person or that which is his, is of that 
 nature as for which damages only are to be recovered ; therefore, an 
 executor or administrator cannot sue another for a trespass done to 
 him in his cattle, grass, or corn, or for waste done by his tenant in 
 his lands •, for these are said to be personal actions which die with 
 the person, according to the rule, actio personalis moritiir cum per- 
 sona (c). 
 
 So, an executor or administrator shall not be charged for any per- 
 sonal wrong done by the deceased, and therefore no action may be 
 brought against him for any such cause ; as for cutting down trees, or 
 for suffering his cattle to eat up the plaintiff's grass (d'). 
 
 But an action for use and occupation by the deceased may be 
 maintained against his executor or administrator. 
 
 Touching the cases in which executors or administrators are af- 
 fected by the covenants made by or in favour of their testators and 
 intestates. An action for the breach of a covenant made to the de- 
 ceased lies for an executor or administrator ; so, for a covenant broken 
 in the lifetime of the testator, the executor, and not the heir or as- 
 signee, shall have the acHon of covenant (f), although (it is said) it 
 were a covemnt real, (as to use the land in an husband-like manner), 
 which runs with the land ; and the damages shall be recovered by 
 the executor, though not named, as he personally represents the tes- 
 tator (/). 
 
 Yet where the lessee covenanted to repair, and to leave the pre- 
 mises in repair, it was held (in a case long prior to that last quoted 
 from Esp. N. P.) that the heir should have an action of covenant on 
 this, though not named : for it was a covenant which runs with the 
 estate, and so should go with the reversion to the heir (g). 
 
 The distinction taken (if any subsists) is perhaps by reason of the 
 one injury not savouring of waste, and the other savouring of waste ; 
 for remedies for waste regard the reversion, and therefore lie with the 
 
 (a) Toll. L. of Ex.& Ad. aao. (.&) Jbid. («) Shep. Touch. 483. (d) Ibid. 4S4. 
 (*) Shep. Touch. 481. a Lev. a6. Vent. 175. (/) Esp. N. P. 5195. 
 
 {g) % Lev. 9 J. Skinn. 305. s,c. I Salk. 141 
 U 2
 
 292 Of Changes happenmghy Marriage, S^c. [Chap. XII. 
 
 heir ; or it may be that the remedy for breach of covenant to repair 
 is given to the heir, because his personal comfort and convenience are 
 abridged by such a breach, which cannot occur to one deceased ; 
 whereas a covenant to use land in a husbandman-like manner, and to 
 leave it in such condition, regards rather the temporal interest than 
 the personal comfort of the covenantee. 
 
 Executors shall also have a writ of covenant of a covenant made 
 to their ancestors for a personal thing. Yet according to The Touch- 
 stone where the covenant is but personal, as where one makes a lease 
 for years, and the lessor covenants to pay the quit-rents, but he does 
 not say during the term, by this it seems the executor or administrator 
 of the lessor shall not be charged (o). 
 
 If the lessor covenants with the lessee to make him a new lease at 
 the end of his term, and the lessee dies, his executor may have cove- 
 nant on this, though not named {b). 
 
 Executors or administrators who come to any term of lands or te- 
 nements, as such, are bound by the covenants which run with the 
 estate, as belonging to the personal property of the testator or intes- 
 tate (c). 
 
 Where lands come to an executor or administi-ator, he may be 
 charged for a breach in his own time, as for non-payment of rent, 
 or with an action of covenant, either in that right or as assignee ; 
 but there is this difference (d). If declared against as assignee, he is 
 chargeable as ter-tenant, or one who hath the actual possession of the 
 land, and the judgment is de bonis propriis {e). But if the action be 
 brought against him as executor or administrator, the judgment shall 
 be de bonis testatoris, even where the breach has been committed in his 
 own time, as for repairs, ^c. for it is the testator's covenant which 
 binds the executor, as representing him, and he therefore must be 
 sued by that name (/). 
 
 Covenant Ues by the lessor against the administrator of the assignee 
 of the lessee, against whom he may declare as assignee, for breach of 
 a covenant that runs with the land {g). 
 
 If a covenant by two lessees be joint and several, it shall bind the 
 executors of the deceased lessee, even though he died before the term 
 commenced, and the whole term, interest and benefit survive to the 
 other lessee [h). 
 
 If a man covenants for himself only to pay money, build a house, 
 for quiet enjoying, or the like, and he doth not say in the covenant 
 " his executors and administrators," yet hereby his executors and ad- 
 ministrators are bound and shall be charged (i). 
 
 (a) I'itz.Nit. lircv. I4J. (D.) Bro. tit. Covenant. 12. Shcp. Touch. 482. 
 (i) Plowd. Com. a86. {c) Hob. 188. loJVIod. 12. I Salk. 37. s. c. {d) i Wils.4. 
 
 (,) I Salk. 309. r/)Il)id. Hob. 188. Cro.Jac.671. (^) Bull. N. P. 159. Esp.N.P.a90. 
 I^h) Burr. 1 197. 'i) •Stu]>. Tourh. 178.
 
 Sect. I.] Remedy for llenL hy Dhlress. 293 
 
 Yet if a lessee for years covenant for himself to repair the houses 
 demised, omitting other words, it seems in this case. he is bound to 
 repair only during his life, and the executors and administrators are 
 not bound {ci). 
 
 But upon a covenant implied, an action of covenant (it is said) will 
 hot lie against an executor («). 
 
 (<;) Shep. Touch. 178. 
 
 CHAPTER XIII. 
 
 Of the Remedies for and against Landlord and Tenant. 
 
 First. Of Remedies for Landlord for Recovery of Rent. 
 
 Section I. By Distress ; xvherein of Found-Breach and 
 Rescue. 
 
 Section II. Action of Debt ; where the Lease is by Deed. 
 
 Section III. Covenant ; xvhere the Lease is by Deed. 
 
 Section IV. Debt, or Assumpsit ; for Use and Occu- 
 pation. 
 
 Section I. Landlord'' s Remedy for Rent by Distress. 
 
 OF the various remedies which the law affords to the landlord for 
 the recovery of rent from his tenant, that by distress, as being 
 the most ancient, and one most summary in its nature, and therefore 
 most commonly resorted to, first claims our consideration. — It is re- 
 commended, in preference to others, by Lord Coke^ as the most plain 
 and certain j and the statute i JV. 3. sess. i. c. 5. recognizes it as 
 " the most ordinary and ready way for recovery of arrears of rent" [a). 
 
 Distress -what. — A distress, districtiof is the taking of a personal 
 chattel out of the possession of the wrong-doer into the custody of 
 the party injured, to procure a satisfaction for the wrong committed. 
 The thing itself taken by this process is also frequently called a dis- 
 tress {b). 
 
 Lies for what. — A distress is not an action, but a remedy without 
 suit, ^c. and was a remedy given to the lord, to recover the rent or 
 services which the tenant had obliged himself by his feudal contract 
 
 {a) Co. Lit. 162. b. {b) 3 El. Com. 6.
 
 294 Remedy for Rent hy Distress. [Chap. XIII. 
 
 to pay by way of retribution for his farm ; for rent is considered as a 
 retribution for the land, and is therefore payable to those who would 
 otherwise have had the land {a). 
 
 For all services a distress may be made of common right ; for dis- 
 tresses were incident by the common law to every rent-service, and 
 by particular reservation to rent-charges also, but not to rent-seek, 
 till the Stat. 4 G. 2. c. 28. extended the same remedy to all rents 
 alike, and thereby in effect abolished all material distinction between 
 them {b). 
 
 So that now we may lay it down as an universal principle, that a 
 distress may be taken for any kind of rent in arrear ; the detention 
 whereof beyond the day of payment is an injury to him that is enti- 
 tled to receive it {c). 
 
 By nvhom Distress may be made. — Therefore, if a person seised in fee 
 grants out a lesser estate, saving the reversion of rent, or other ser- 
 vices, the law gives him, without any express provision, remedy for 
 such rent or services by distress (d). 
 
 But for a rent which issues out of an incorporeal inheritance, the 
 reversioner cannot distrain ; as if I have a right of common in ano- 
 ther man's soil, and I grant it to ^. reserving rent, if the rent be be- 
 hind, I cannot distrain the beasts of A. because that the right of com- 
 mon, which every man has, runs through the whole common. — The 
 king however is an exception to this rule, for he by his prerogative 
 can distrain upon all the lands of his lessee. 
 
 So, a man cannot distrain for rent issuing out of tithes, because 
 there is no place where the distress can be taken. 
 
 A person who has not the reversion cannot distrain of common 
 right ; but he may reserve to himself a power of distraining, or the 
 reservation may be good to bind the lessee by way of contract, for 
 the performance whereof the lessor may have an action of debt {e). 
 
 Thus if the assignee of a term surrenders to the original lessor, 
 though he reserves a sum in gross to be paid annually, he cannot dis- 
 train for that or the original rent, but he may have an action of as- 
 sumpsit for such sum in gross {f). 
 
 So, if a lessee for years assign his term rendering rent, he cannot 
 distrain for it without a particular clause for that purpose, because 
 he has no reversionary interest ; the only remedy that the assignor 
 has, is by an action on his contract. 
 
 If under an agreement for a lease at a certain rent the tenant is let 
 into possession before the lease is executed, the lessor cannot during 
 the first year distrain for rent i for there is no demise express or im- 
 plied {g), 
 
 (a) Gilb. L. of l)is. I. Co. Lit. n. i. (i) Com. Dig. tit. Distress. (A. i.) 
 
 (0 4 31. Com. 6. ((/) Gilb. L. of Dist. 28. (0 Gilb. L. of Dijt. 
 
 (/; 1 T.R. 441. {g) % Taunt. 148.
 
 .Sect. I.] Remedy for Rent hy Dhlress, 29.5 
 
 A devisee may distrain for rent devised to him out of the lands, if 
 the land is charged with a distress, and not otherwise. 
 
 For a rent granted for equality of partition by one coparcener to 
 another, or for a rent granted to a widow out of lands whereof she 
 is dowable In lieu of dower, or for a rent granted in lieu of lands 
 upon an exchange, the grantee may distrain without any provision of 
 the parties, though he has no reversion ; the law giving him a distress 
 in these cases, lest the grantee should be without remedy. 
 
 But if a man grants rent over to another, after arrearages incurred, 
 he cannot distrain for such arrearages ; because they are by the grant 
 divided from the freehold of the rent. 
 
 If a person enter upon certain premises subject to the approbation 
 of the landlord, who afterwards does not approve ; but upon an agree- 
 ment that the tenant will pay an advanced rent as well for the time 
 he had been in possession, as for the future, the landlord was willing 
 to kt him continue in possession : in such case, the landlord may 
 distrain for the advanced rent accrued before the agreement as well as 
 for what accrues afterwards, such agreement giving him the same 
 power by relation to his tenant's first entry into possession, as It did 
 to recover his rent in future. 
 
 So, a mortgagee, after giving notice of the mortgage to the tenant 
 in possession, under a lease prior to the mortgage, may distrain for 
 the rent in arrear at the time of the notice, (although he was not in 
 the actual seisin of the premises or In the receipt of the rents and 
 profits at the time it became due) as well as for rent which may ac- 
 crue after such notice ; the legal title to the rent being In the mort- 
 gagee. 
 
 A receiver appointed by the Court of Chancery may distrain for 
 rent, where he sees it necessary, and need not apply first to that court 
 for a particular order for the purpose ; because, as that court never 
 makes an immediate order, but appoints a future day for a tenant to 
 pay, it might be an Injury to the estate to wait till that time, as it 
 would give the tenant an opportunity to convey his goods off the pre- 
 mises In the mean time. — If, however, there is any doubt who has 
 the legal right to the rent, then the receiver should make an applica- 
 tion to that court for an order ; as he must distrain in the name of 
 the person who has that right. 
 
 One joint-tenant may distrain alone ; but then he must avow In his 
 own right and as bailiff to the other {d). 
 
 One tenant In common may distrain for his share of the rent upon 
 the terre-tenant holding under him and another tenant In common, 
 where such terre-tenant has paid the whole rent to the other tenant in 
 common after notice not so to pay it (b). 
 
 (a) s Mod, J J. IJO. 3 t5alk, zo'/. (i) 5 T. R. 246.
 
 296 Remedy for Rent by Distress. [Chap. XIIL 
 
 A man may distrain cattle without any express authority, and if he 
 obtain the assent of the person in whose right he did distrain, his as- 
 sent will be as effectual as Iiis command could have been ; for such 
 assent shall have relation to the time of the distress taken [a). 
 
 By the common \z\v the executors or administrators of a man 
 seised of a rent-service, rent-charge, rent-seek, or a fee-farm, in fee- 
 simple, or fee-tail, could not distrain for the arrearages incurred in 
 the lifetime of the owner of such rents. 
 
 It was, therefore, enacted by stat. 32 H. 8. f. 37. j. i. That the 
 executors and administrators of tenants in fee, fee-tail, or for term of 
 life, for rent-services, rent-charges, rent-seek, and fee farms, may 
 distrain upon the lands chargeable with the payment thereof, so long 
 as such lands remain in the possession of the tenant who ought to 
 have paid such rent or fee- farm, or of any other person claiming under 
 him by purchase, gift, or descent. 
 
 By section 3. of the same statute it is enacted. That if a man hath 
 in right of his wife any estate in fee-simple, fee-tail, or for term of 
 life, or of or in any rents or fee-farms, and the same rents or fee- 
 farms shall be due and unpaid at the death of his wife, such husband 
 may distrain for the said arrearages in the same manner as if his wife 
 had been living. 
 
 By section 4. it is enacted. That if any person have such rents or 
 fee-farms for term of life or lives of other persons, he, his executors 
 or administrators, may distrain for arrearages of such rent incurred at 
 the death of the cestui que wV, in the same manner as if such cestui que 
 vie had been still living. 
 
 This statute is a remedial law, and extends to the executors of all 
 tenants for life, as well to those executors who before the statute were 
 entitled to an action of debt, as to those who had no remedy what- 
 ever (b) : so that Lord Cokeys, idea that the preamble concerning the 
 executors and administrators of tenant for life is to be intended of 
 tenant pur auier vie so long as cestui que vie lives, seems to be too 
 narrow {c). 
 
 But where a tenant for life of a rent-charge confessed a judgment 
 which was extended by elegit.^ and the tenant for life dying, the 
 conusee distrained, and in replevin avowed for the arrears incurred 
 in the lifetime of the tenant for life, upon demurrer the distress was 
 holden to be bad and not warranted by the statute : first, because the 
 case of the conusee is not enumerated in it ; secondly, because he 
 comes in in the/»oj-/, and not under the tenant for life {d). 
 
 Neither is the executor of a grantee of a rent -charge for divers 
 years, if he so long live, within the statute {e). 
 
 Lord Cfjke says, if a man makes a lease for life, or a gift in tail 
 
 {a) Glib. L. uf Di't. jz. (/') 1 \.A. Rayin. 172. y Salk. rj6. (1;) Co, Lit. i6a. b. 
 
 {d) liull. N. P. 56. "(.) Ibid. 57.
 
 Sect. I.] Remedy Jbr Rent by Distress. 297 
 
 reserving rent, this is a rent-service within the statute ; from whence 
 it may be inferred, that he thought that a rent reserved upon a lease 
 for years was not within it, and I apprehend that it is not j for the 
 landlord is not tenant in fee, fee-tail, or for life, of such a rent, and 
 it is the executors of such tenants only who are mentioned in the Act. 
 However, in trespass, where it appeared that the defendant had dis- 
 trained the plaintiff's goods for rent due to his testator upon a lease 
 for years. Lord C. J. Lee held it to be within the statute, and the de- 
 fendant obtained a verdict [a). 
 
 This statute does not extend to copyhold rents, but only to rents 
 out of free-land [b). 
 
 What things are distrainable. — With respect to the things which may 
 be taken under this process, a distress being anciently considered 
 merely as a pledge in the hands of the lord to compel the tenant 
 to perform the service or duty, could not at common law be sold, 
 but was to be restored in the same plight to the owner when such 
 service or duty was performed, and nothing could be distrained 
 unless it could be returned in specie and undamaged. It follows, that 
 money cannot be distrained unless it be in a bag, for then it may be 
 identified ; so milk, fruit, ^c. cannot be distrained ; nor, till made 
 distrainable by statute, could hay or sheaves of corn be the subject of 
 a distress, unless they were in a cart (r ). 
 
 As to the things, however, which may be distrained or taken in 
 distress, we may lay it down as a general rule, that all chattels 
 personal are liable to be distrained, unless particularly protected or 
 exempted {^d). 
 
 By Stat. 2 W. 3. ^.5. it is enacted. That it shall be lawful for any, 
 having arrear of rent, to seize and secure any sheaves or cocks of 
 corn, or corn loose or in the straw, or hay being in any barn or 
 granary, or upon any hovel, stack, or rick, or otherwise upon any 
 part of the land or ground charged with such rent, and to lock up or 
 detain the same in the place where the same shall be found, until the 
 same shall be replevied, or sold. 
 
 By Stat. 1 1 G. 2. c. 19. /. 8. the landlord may take and seize, as a 
 distress for arrears of rent, all sorts of corn and grass, hops, roots, 
 fruits, pulse, or other product whatsoever growing upon any part of 
 the estate demised ; and the same may cut, gather, make, cure, carry 
 and lay up, when ripe, in the barns, or other proper place on the 
 premises •, and if there should be no barn or other place on the pre- 
 mises, then in any other barn or proper place which he shall procure, 
 as near as may be to the premises ; and in convenient time appraise, 
 sell, or otherwise dispose of the same towards satisfaction of the rent 
 and of the charges of such distress, appraisement, and sale ; the ap- 
 
 ia) Bull. N. I'. 57. {b) Ytlv. 12,5. • (0 Gilb. L. cf Dist. 34, &c. 
 
 {</) 3 B). Com. 7.
 
 298 Remedy for Rent by Dislress. [Chap. XII L 
 
 praisement thereof to be taken, when cut, gathered, cured, and made, 
 and not before : provided always, {s. g.) that notice of the place 
 where such distress shall be lodged, shall, in one week after the 
 lodging thereof, be given to the tenant, or left at the last place of his 
 abode ; and that if the tenant shall pay or tender the arrears of rent 
 and costs of the distress before the corn, ^c. be cut, the distress shall 
 cease, and the corn, l!fc. be delivered up. 
 
 By the stat. ^6 G. 3. c. 50. it. it is enacted. That no sheriff or other 
 officer in England or Wales, shall, by virtue of any process of any 
 court of law, carry off or sell, or dispose of for the purpose of being 
 carried off from any lands let to farm, any straw thrashed or un- 
 thrashed, or any straw of crops growing, or any chaff, colder, or 
 any turnips, or any manure, compost, ashes or sea-weed, in any case 
 whatsoever, nor any hay, grass or grasses, whether natural or arti- 
 ficial, nor any tares or vetches, nor any roots or vegetables, being 
 produce of such lands, in any case where according to any covenant 
 or written agreement entered into and made for the benefit of the 
 owner or landlord of any farm, such hay, grass or grasses, tares and 
 vetches, roots or vegetables, ought not to be taken off or withholdeu 
 from such lands, or which by the tenor or effect of such covenants or 
 agreements ought to be used or expended thereon ; and of which 
 covenants or agreements such sheriff or other officer shall have re- 
 ceived a written notice before he shall have proceeded to sale. 
 
 The second section provides that the tenant shall give notice to the 
 sheriff of the existence of covenants ; and the sheriff to the landlord. 
 
 Section 3. enacts, " That such sheriff or other officer executing 
 such process, may dispose of any crops or produce hereinbefore 
 mentioned, to any person or persons who shall agree in writing 
 with such sheriff or other officer, in cases where no covenant or 
 written agreement shall be shewn, to use and expend the same on 
 such lands in such manner as shall accord with the custom of the 
 country •, and in cases where any covenant or written agreement shall 
 be shewji, then according to such covenant or written agreement ; 
 and after such sale or disposal so qualified, it shall be lawful for such 
 person or persons to use all such necessary barns, stables, buildings, 
 out-houses, yards and fields for the purpose of consuming such crops 
 or produce, as such sheriff or other officer shall allot or assign to 
 them for that purpose, and which such tenant or occupier would have 
 been entitled to and ought to have used for the like purpose on such 
 lands. 
 
 And by section 6. it is further enacted, That in all cases where any 
 purchaser or purchasers of any crops or produce hereinbefore men- 
 tioned, shall have entered into any agreement with such sheriff or 
 other officer, touching the use and expenditure thereof on lands let to 
 farm, it shall not be lawful for the ownct or landlord of such lands 
 
 8
 
 Sect. I.] Remedy for Rent bjj Dklress. 299 
 
 to distrain for any rent on any corn, hay, straw, or other produce 
 thereof, which, at the time of such sale, and the execution of such 
 agreement entered into under the provisions of this Act, shall have 
 been severed from the soil, and sold, subject to such agreement by 
 such sheriff or other officer; nor on any turnips, whether drawn or 
 growing, if sold according to the provisions of this Act ; nor on any 
 horses, sheep or other cattle, nor on any beast whatsoever, nor on 
 any waggons, carts or other implements of husbandry, which any 
 person or persons shall employ, keep or use on such lands for the 
 purpose of thrashing out, carrying or consuming any such corn, hay, 
 straw, turnips or other produce under the provisions of the Act, and 
 the agreement or agreements directed to be entered into between the 
 sheriff or other officer, and the purchaser or purchasers of such crops 
 and produce as hereinbefore are mentioned. 
 
 The tools and utensils of a man's trade cannot be distrained while 
 there is any other distress on the premises, or even while they are in 
 actual use ; therefore the axe of a carpenter, the books of a scholar, 
 and the like, are not distrainable while any other distress can be had, 
 or while they are in actual use {a). 
 
 Thus, in trover for a stocking-loom which had been distrained for 
 rent, where it appeared that an apprentice was using the loom at the 
 time it was taken, the Court held that it could not legally be taken 
 while the apprentice was using it. 
 
 But in trover for three tape-looms, where it appeared that they 
 had been distrained for rent, because there was no other sufficient dis- 
 tress upon the premises, the Court held the distress good, as it did 
 not appear that the looms were in actual use at the time they were 
 taken. 
 
 Lest this rule, however, should be carried so far as to privilege 
 the sheep of the tenant, and the beasts of the plough, (they being the 
 materials of husbandry, to plough and manure the land), and by that 
 means the landlord be totally disappointed of the rents, this matter 
 has been settled by the statute de districtione scaccarity 51 H. 2* st. 4. 
 which is an affirmance of the common law, and enacts that no man 
 shall be distrained by the beasts of his plough or his sheep, either by 
 the king or any other, while there is another sufficient distress j unless 
 indeed for damage feasant, in which case the thing that does the tres- 
 pass must make compensation. 
 
 Note. In an action on the above-mentioned statute, it Is not neces- 
 sary to shew that there was a sufficient distress, pratery Iffc. but 
 it must come on the other part, viz. to plead that there was not a 
 sufficient distress, prater^ ^c. It must be intended that there was 
 cattle sufficient at the time of the distress, and it is not material what 
 was before or after. 
 
 (<») Gilb. L. of Dist. 36, &c.
 
 800 Remedy for Rent by Distress. [Chap, Xllf, 
 
 The rule of the common law, which exempts utensils, tools, instru- 
 ments of husbandry, K^fc. from distress, has been adjudged to hold 
 as to distress for rent arrear, amerciaments, ^c. not for poors-rates, 
 Is'c. which are out of present consideration, and are noticed in Chap. 
 VIII. Sec. III. 
 
 The general rule of law is, that all things upon the premises are 
 liable to the landlord's distress for rent, whether they be the effects of 
 a tenant or of a stranger 5 because of the lien which the landlord has 
 on them in respect of the place where the goods are found, and not iu 
 respect of the person to whom they belong. 
 
 But this rule has many exceptions in favour of trade, to protect the 
 goods of third persons which happen to be upon the tenant's premises 
 in the way of his trade; therefore things sent to public places of trade, 
 as cloth in a tailor's shop, yarn in a weaver's, a horse in a smith's, 
 and the like, are not distrainable. 
 
 But a gentleman's chariot standing in a coach-house belonging 
 to a livery-stable keeper, is, it seems, liable to a distress. 
 
 But if a horse goes with yarn, tsfc. to a weaver, iifc. or fetches yarn 
 from thence and carries it to a private house to be weighed, and it is 
 hung there till the yarn be weighed, neither the horse nor yarn can be 
 distrained. 
 
 So, a horse that brings corn to market, and is put into a private 
 yard while the corn is selling, cannot be distrained ; because the bring- 
 ing of the corn there is in the way of trade, and consequently of pub- 
 lic benefit. 
 
 So, goods in the possession of a common carrier are protected from 
 distress for the benefit of trade ; as if they be delivered to him to put 
 into a waggon in a private barn. 
 
 Neither can the horse on which I am riding be distrained ; for it is 
 in use. 
 
 Nor can wearing apparel if in use be distrained ; but wearing ap- 
 parel not in use is distrainable for rent {a). 
 
 The goods of a tenant are liable for a year's rent, notwithstanding 
 outlawry in a civil suit. 
 
 Therefore, where a sheriff's officer, being in possession of the 
 tenant's effects under an outlawry, made a distress for rent, sold the 
 goods distrained, and afterwards the outlawry was reversed: the 
 officer was held liable to pay the produce of the goods in an action 
 for money had and received ; for they were not in custodia legisy the 
 judgment being mere waste paper. If during the time that he was 
 in possession under the outlawry, he was put to any expense in reap- 
 ing and getting in the crops, he may maintain an action against the 
 tenant to recover those expenses. — Even if the outlawry had not been 
 
 (a) J Jfsp. R. ac6.
 
 Sect. I.] Remedy for Rent by Distress. 30 1 
 
 reversed, the landlord would have been entitled to a year's rent, 
 because capias ntlagatum at the suit of the party is to be considered 
 only as a private execution («). 
 
 But sect. 8. of the stat. ii. G. 2. c. i^. every landlord may take 
 and seize, as a distress for arrears of rent, any cattle or stock of 
 his tenant feeding or depasturing upon any common appendant or 
 appurtenant, or any ways belonging to any part of the premises 
 demised. 
 
 It seems to be now settled, that where beasts escape, and come 
 upon the land by the negligence or default of their owner, and are 
 trespassers there, they may be distrained immediately by the landlord 
 for rent arrear ib). 
 
 But where they come upon land by the insufficiency of fences, 
 ■which the tenant, being a lessee, ought to repair, the lessor cannot 
 distrain such beasts, till they have been levant and coiichant^ and after 
 that actual notice has been given to the owner that they are there, and 
 he has afterwards neglected to remove them. But such notice, it is 
 said, is not necessary where the distress is by the lord of the fee for 
 an ancient rent, or by the grantee of a rent-charge. 
 
 Therefore, where a stranger puts in his beasts to graze for a night 
 by the consent of the lessor and license of the lessee, yet the lessor 
 may distrain them for rent due out of those lands which he consented 
 that the beasts should graze on : because such consent was no waiver 
 of his right to distrain, unless it had been expressly agreed so ; for 
 being but a parol agreement, it could not alter the original contract 
 between the lessor and lessee, from which the power to distrain arises. 
 The circumstance of the beasts being on the road to market does not 
 privilege them from the distress. 
 
 As to cattle, therefore, the safest way is to drive them to a 
 public inn ; for an inn being pnhltci jur'iSy and every man having 
 a right to put up at it, the cattle and goods of a guest are not distrain- 
 able there. 
 
 The privilege which exempts cattle and goods from being distrained 
 at an inn, arises from the circumstance of their being there by autho- 
 rity of law ; for common inns are so much devoted to the public ser- 
 vice, that their owners are obliged to receive all guests and horses that 
 come to them for reception. 
 
 But the cattle or goods must be actually within the premises of the 
 inn itself, to be exempted from distress, and not in any place to 
 which the tenant may have removed them for his convenience : 
 for where a race-horse was distrained for rent at a stable half a mile 
 distant from the inn, the distress was determined to be a good one, 
 and that the plaintiff had no remedy but against the innkeepei\ 
 ia) 7 T. R. %$i. 4, 5- W Gilb. L. of Dist. 45, &c.
 
 302 Remedijfor Bent by Distress. [Chap. XIII, 
 
 But if fraud be used to obtain this remedy, a court of equity will 
 afford relief. 
 
 Thus, where the servants of a grazier driving a flock of sheep 
 to London, were encouraged by an innkeeper to put the sheep into pas- 
 ture grounds belonging to the inn, and the landlord seeing the sheep, 
 consented that they should stay there for one night, and then dis- 
 trained them for rent, the grazier was relieved against the distress {a). 
 It has been thought by the Court of Chancery, that the ground 
 used with an inn ought to have the same privilege as the inn itself, 
 and therefore that the cattle of strangers or passengers ought not to 
 be distrained there. 
 
 This privilege also extends, it seems, only to temporary guests ; for 
 a person who hires an unfurnished room in an inn, by such hiring, 
 becomes an under-tenant, and any furniture that he may have brought 
 into such room must be liable to the landlord's distress. A landlord 
 may distrain for the rent of ready-furnished lodgings [b). 
 
 In a case where a rent-charge had been in arrear for twenty years, 
 and cattle escaping out of the adjoining grounds had been distrained 
 for the arrears, the distress was relieved against in equity. — For a rent- 
 charge the grantee cannot distrain a stranger's beasts until they are le- 
 vant and couchant : for this rent does not stand upon a feudal title, as 
 rent-service does, but is said to be against common right ; wherefore 
 the stranger's beasts must be so long resident on the lands out of 
 which the rent-charge issues, that notice may be presumed to the 
 owner of them ; that is, they must be lying down and rising up on 
 the premises for a night and a day without pursuit made by the ov/ner 
 of them. 
 
 Whatever is part of the freehold is exempted from distress, for 
 that which is part of the freehold cannot be severed from it without 
 detriment to the thing itself in the removal -, consequently it cannot 
 be such a pledge as may be restored in the same condition to the 
 owner : besides that which is fixed to the freehold is part of the 
 thing demised j those things therefore that favour of the reality are 
 not distrainable. 
 
 This privilege extends to such things as the tenant will not be per- 
 mitted on any consideration to remove with him from the premises by 
 reason of their being annexed to and considered as part of the free- 
 hold, and not because they are absolutely affixed to the freehold and 
 cannot be moved therefrom •, for a temporary removal of them for 
 purposes of necessity is not sufficient to destroy the privilege. 
 
 Thus, a smith's anvil on which he works is not distrainable ; for it 
 is accounted part of the forge, though it be not actually fixed by nails 
 to the shop. 
 
 («) Prcc. Ch. 7. (/') 2 N. U. 224.
 
 Sect. I.] Uemedi) for Uent hi) Dish^ess. 803 
 
 So, a millstone is not distrainable, though it be removed out of Its 
 proper place in order to be picked ; because such removal is of 
 necessity, and the stone still continues to be part of the mill. 
 
 That which is in the hands and actual occupation of another cannot 
 be distrained ; for that cannot be a pledge to me of which another 
 has the actual use [a). 
 
 So, wearing apparel cannot be distrained whilst on the person of 
 the owner ; but if taken off, though merely for the purpose of 
 natural repose, it may be distrained, upon the principle of not being 
 in actual use. 
 
 Goods in the custody of the law are not distrainable ; for it is ex vi 
 termini repugnant that it should be lawful to take goods out of the 
 custody of the law ; and that cannot be a pledge to me which I can- 
 not reduce into my actual possession. 
 
 Therefore goods distrained for damage feasant cannot be taken for 
 rentj nor goods in a bailiff's hands under an execution ; nor goods 
 seized by process at the suit of the king, or taken under an attach- 
 ment ; nor will a replevin lie for them. 
 
 Neither can goods be distrained which have been sold under execu- 
 tion of a writ oi fieri facias^ but so circumstanced that it has not been 
 proper to remove them from the premises. Thus, where a tenant's 
 corn while growing was seized and sold under zfi.fa. and the vendee 
 permitted it to remain till it was ripe and then cut it, after which, 
 and before it was fit to be carried, the landlord distrained it for rent, 
 both the Courts of K. B. and C. P. held that it was not distrainable. 
 But where corn was taken in execution and sold by the sheriff under 
 the Stat. 2 W, &. M. c. 5. j-. 3. and the vendee permitted it after 
 severance to lie on the ground, the Court held it to be distrainable 
 for rent. 
 
 A landlord having a legal right to distrain goods while they remain 
 on the premises, the issuing a commission of bankrupt against the 
 tenant, and the messenger's possession of the goods of the tenant, will 
 not hinder him from distraining for rent ; and the assignment by the 
 commissioners of the bankrupt's estate and effects is only changing 
 the property of the goods, which while on the premises remain liable 
 to be distrained. 
 
 But if the landlord neglects to distrain, and suffers the goods to be 
 sold by the assignees, he can only come in pro rata with the rest of 
 the creditors. 
 
 In some cases the distress itself is not protected even from a sub- 
 sequent process : thus where the question was, whether goods were 
 not liable to be seized on an immediate extent for the king's own debt, 
 after a distress had been taken of the same goods by a landlord for 
 rent justly due to him, before an actual sale of the goods ? the Court 
 
 {a) Ante 3OO.
 
 304 Remedy for Rail Inj Distress. [Cliap. XllL 
 
 of the Exchequer determined that the extent took place of the land- 
 lord's claim for rent, upon the authority of a much stronger case 
 which had been before determined in that Court, in which the time 
 for the sale had expired, and an attachment had been moved for 
 against the sheriff, for not having executed the writ of wnditioni 
 exponas. 
 
 But if a replevin come after goods are sold on the execution, the 
 defendant must claim property ; for then they are out of the custodv 
 of the law, and in the hands of a private person. 
 
 Lastly, as every thing which is distrained is presumed to be the 
 property of the wrong doer, it follows that such things wherein no 
 man can have an absolute and valuable property, as dogs, cats, 
 rabbits, and all animals y^r^ tiaturaf cannot be distrained. 
 
 Yet if deer, which urefera" fiafura, are kept in a private enclosure 
 for the purpose of sale or profit, this so far changes their nature, by 
 reducing them to a kind of stock or merchandize, that they may be 
 distrained for rent. 
 
 When we speak of chattels not distrainable, it must be understood 
 with reference to the subject of this chapter, namely, as a reinedy for 
 the recovery of rent; for all chattels whatever are distrainable damage 
 feasant, it being but natural justice that whatever doth tiie injury 
 should be a pledge to make compensation for it. 
 
 Where a wrongful distress is made, and the party vkliose goods are 
 so distrained pays money in order to redeem them, he may maintain 
 trover against the wrong doer [a). 
 
 Distress, luheft, where, and hew fjiade. — With respect to the time, 
 place, and manner of making a distress, it is to be observed, that a 
 distress for rent cannot be made in the night, [which season is said to 
 be from after sun-set till sun-rise,] because the tenant hath not there- 
 by notice to make a tender of his rent, which possibly he might do in 
 order to prevent the impounding of his cattle [h). 
 
 The distress for rent must be for rent in arrear ,- therefore it may 
 not be made the same day on which the rent becomes due, for if the 
 rent be paid at any time during that day, whilst a man can see to 
 count it, the payment is good. Strictly indeed the rent is demand- 
 able and payable before the time of sun-set of the day whereon it is 
 reserved ; yet it is not due till the last minute of the natural day, for 
 if the lessor die after sun-set, and before midnight, the rent shall go 
 to the heir, and not to the executor. 
 
 But the custom of a place, or an agreement between the landlord 
 and tenant, if there be no objection to it in point of law, may em- 
 power the landlord to distrain for it earlier, for convetitio vincit legem. 
 
 Tlicrcfore if a trader, after committing an act of bankruptcy, take 
 a shop, and agree to pay a year's rent in advance, where by the 
 
 (a; 6 T. R. 298. (A) Gilb. L, o.*" Dist. 56, &c.
 
 Sect. 1.3 Remedy for Rent hy Distress. 305 
 
 custom of the country half a year's rent becomes due on the day on 
 which the tenant enters, the landlord after an assignment under the 
 commission, and before the year be expired, may distrain goods on 
 the premises for half a year's rent, or if he buy the tenant's goods, 
 he may retain the amount of the half year's rent. 
 
 A distress must not be after tender of payment, for if the landlord 
 come to distrain the goods of his tenant for rent, the tenant may, be- 
 fore the distress, tender the arrearages, and if the distress be after- 
 wards taken, it is illegal. So, if the landlord have distrained, and 
 the tenant make a tender of the arrearages, together with the expences 
 of the distress, before the impounding of the distress, the landlord ought 
 to deliver up the distress, and if he does not, the detainer is unlawful. 
 
 But tender of rent after distress is impounded, is insufficient, for 
 then it is in the custody of the law (a). 
 
 An action on the case will not lie for detaining cattle distrained and 
 impounded, where a tender of amends was not made till after the im- 
 pounding ; and comme semble such an action could not be supported, 
 even if -the tender of amends had been made before the impounding ; X 
 as the proper mode of trying the validity of distress is by action of 
 replevin or trespass {b). 
 
 A tender of rent at the proper time and place will save a distress, 
 or entry, or other condition in the lease, though the landlord refuse 
 to take it, the tenant having done all that he was bound to do : the 
 landlord may, however, maintain an action of debt, or covenant for 
 his rent, but shall not recover damages or costs for non-payment {c). 
 
 A distress may be made for rent accrued after the expiration of a 
 notice to quit, but it is a waiver of the notice ; the taking of the dis- 
 tress being a proof of the landlord's intention to confirm the tenancy. 
 
 At common law, and before any innovation was made by statute, 
 the landlord could not have distrained for his rent after the determi- 
 nation of his lease : but now a distress for rent may be made though 
 the lease be determined [d). 
 
 For by stat. 8 Jmt. c. 14. s. 6, 'j. it is enacted, That it shall be 
 lawful to distrain after the determination of the lease, in the same 
 manner as if it had not been determined, provided the distress be 
 made within six calendar months after the determination of the lease, 
 and during the contiimance of the landlord's title or interest, and also 
 during the possession of the tenant. 
 
 But where, by the custom of the country, the off-going tenant is 
 allowed any advantages respecting the premises which he has quitted, 
 as for example, a certain period within which to get in and dispose 
 of, or to thresh and keep his corn, iffc. the interest and connection 
 between the landlord and tenant is so continued by the operation of 
 
 (a) 5 T. R. 433. (i) I Campb, 33Z. (c) 1 Vent. ai. i Show. 130. 3 Salk. 344. 
 
 (</) 6 T. R. 669. 
 
 X
 
 S06 Remedy for Rent by Distress, [Chap. XIII. 
 
 such customary right, that the former is entitled to distrain for rent 
 in arrear after six months have expired since the determination of the 
 lease. 
 
 So, if a tenant dies, and his representative enters upon the pre- 
 mises, and continues therein until and after the expiration of the term, 
 the landlord may at any time within the six months after the end of 
 the term, under the restrictions prescribed by the Act, distrain for 
 the arrears vi'hich were due at the time the original tenant died, as 
 well as for what accrued afterwards. 
 
 No private person can distrain beasts off his own land, or on the 
 high road, which is privileged for the convenience of passengers and 
 the encouragement of commerce. 
 
 But though chattels or pledges on the land only are to answer the 
 lord's rent, yet if the lord comes to distrain, and the tenant, seeing 
 him, drives the cattle off the land, the lord may follow the beasts and 
 distrain out of his fee, if he had once a view of his cattle on his land. 
 But if the beasts go off the land of themselves before the lord observes 
 them, he cannot distrain them afterwards, as he might, where the 
 tenant drives them off. 
 
 Where there are separate demises, there ought to be separate dis- 
 tresses on the several premises subject to the distinct rents ; for no 
 distress on one part can be good for both rents. 
 
 But where lands lying in different counties, are held under one de- 
 mise at one entire rent, a distress may be lawfully taken in either 
 county for the whole rent in arrear; and chasing a distress over is a 
 continuance of the taking. But where the counties do not adjoin, a 
 distress cannot be chased out of one county into the other. 
 
 By statute 1 1 G. 2. c. 19. [of which more particularly in Chap. 17. 
 Sect. III.] if any tenant for life, years, at will, sufferance, or other- 
 wise shall fraudulently or clandestinely convey his goods off the pre- 
 mises, to prevent his landlord from distraining the same, such person, 
 or any person by him lawfully empowered, may, in thirty days next 
 after such conveyance, seize the same wherever they shall be found, 
 and dispose of them in such manner as if they had been distrained on 
 the premises. 
 
 But, by sect. 2. of the same statute, the landlord shall not distrain 
 any goods which shall have been previously sold, hondfidty and for a 
 valuable consideration, to any person not privy to such fraud. 
 
 By sect. 3. every tenant who shall so convey away his goods, and 
 every person who shall knowingly aid or assist him therein, or in 
 concealing the same, shall forfeit to the landlord double the value of 
 such goods. 
 
 By sect. 7. of the same statute, it is enacted. That where any goods 
 or chattels, fraudulently or clandestinely conveyed off the premises to 
 prevent the landlord from distraining them for rent, shall be put.
 
 Sect,. I.J Remedjj for Rent hij Distress. 307 
 
 placed, or kept, in any house, barn, stable, cut-house, yard, close 
 or place, locked up, fastened or otherwise secured, it shall be lawful 
 for the landlord, his steward, or other person impowered by him for 
 that purpose, to take and seize as a distress for rent, such goods and 
 cl^attels, (first calling to his assistance the constable, headborough, 
 f;orsholder, or other peace ofHcer of the hundred, district, or place 
 where the same shall be suspected to be concealed; and, in case of a 
 dwelling-house, (oath being also first made before a justice of the 
 peace, of a reasonable ground to suspect that such goods or chattels 
 are therein,) in the day-time to break open and enter into such house, 
 barn, stable, out-house, yard, close and place ; and to take and seize 
 such goods and chattels for the arrears of rent, as he might have done 
 if they had been in an open place. 
 
 As to the point, whether a landlord can follow and distrain upon' 
 goods fraudulently removed from the premises the night before 
 the rent became due, for the purpose of avoiding a distress. Lord 
 Ellenhorough, C. J. when the point was likely to arise before him at 
 J^isi Prius, said, that he had considerable doubts upon the ques- 
 tion {a). 
 
 If a landlord comes into a house and seizes upon some goods as a 
 distress in the name of all the goods in the house, it will be a good 
 seizure of all. 
 
 Distresses ought not to be excessive; but In proportion to the sum 
 distrained for, according to the statute oi Marlbridge, 52 H. 1^. c. 4. 
 
 Thus, if the lord distrain two or three oxen for i id. this is un- 
 |easonable ; so if he distrain a horse or an ox for a small sum, where 
 a sheep or a swine may be had, this is an excessive distress, — But if 
 there be no other distress on the land, then the taking of one entire 
 tiling, though of never so great value, is not unreasonable. 
 
 .By Stat. 17 C 2. c. 7. in all cases, where the value of the cattle 
 distrained shall not be found to be of the full value of the arrears dis- 
 trained for, the party to whom such arrears are due, his executors or 
 a4KninIstrators, may distrain again for the said arrears. 
 ^,-, But a second distress cannot, it seems, be at all justified, where 
 there is enough which might have been taken upon the first, if the 
 distrainer had then thought proper : for in a case where this question 
 jpccurred, it was resolved, that a man who has an entire duty (as a 
 rent for example) shall not split the entire sum, and distrain for one 
 part of it at one time, and for the other part of It at another time, 
 and so toties quoties fcu" several times ; for that Is great oppression, 
 ^^ But if a man seizes for the whole sum that Is due to hira, and only 
 mistakes the value of the goods seized, which may be of uncertain or 
 imaginary value, as pictures, jewels, race horses, ^c. there Is no 
 
 ,-'•■■• . (<2) 4 Campb. 136. 
 
 X2
 
 308 Remedy for Rent hy Distress. [Chap. XIIL 
 
 reason why he should not afterwards complete his execution by 
 making a further seizure. 
 
 For taking an excessive distress, a man is not liable to a criminal 
 prosecution. 
 
 Neither can a general action of trespass be maintained for an ex- 
 cessive distress. 
 
 But the remedy is by a special action founded upon the statute of 
 Marlbridge. On this statute even there can be no remedy where 
 there is a remedy at the common law ; nor if the plaintiff has re- 
 covered in replevin ; for the action on the statute is founded upon 
 there being a cause of distress, of which the recovery in replevin 
 shews there was none ; moreover, in replevin, damages were recover- 
 able for the taking, and a man shall not be permitted to say that there 
 was a cause of distress, after he has recovered upon the ground of its 
 being unlawful. 
 
 The Court of Chancery made an order specifically to restore to a 
 tenant the stock on the farm seized by the landlord under a distress 
 and bill of sale, the landlord not stating whether the sum under 
 which by the terms of the contract he was not to enforce his remedies, 
 was due (a). 
 
 If any distress and sale be made, as for rent in arrear and due, 
 when in truth not any is due, in such case the owner may recover 
 double the value, with full costs of suit, in an action of trespass, or 
 upon the case, on the stat. 2 W. ^ M. sess. i. c. 5. s. 5. 
 
 If the distress be made without cause the owner may make rescous^ 
 that is, rescue it ; but if it be impounded, he cannot break the pound 
 and retake it, because then it is in the custody of the law. 
 
 Distress^ how to be used. — Notice of the distress, with the cause of 
 such taking, must be given to the owner by the stat. 2 W. & M. sesj. 
 I. c. 5. s.i. 
 
 As to the manner in which the distress is to be used and disposed 
 of ; a distress is to be kept in a pound, which is nothing more than a 
 public prison for goods and chattels, and is cither overtj or open, or 
 coverty or shut. All living chattels are regularly to be put into the 
 pound overty because the owner at his peril is to sustain them, where- 
 fore they ought to be put in such an open place as he can resort to 
 for the purpose. 
 
 By the stat. i £5* 2 Ph. iff M. c. 12. s. i. no distress of cattle Is to 
 be driven out of the hundred, rape, wapentake, or lathe, where the 
 same Is taken, except it be to a pound overt within the same shire, 
 nor above three miles from the place where the same Is taken ; nor im- 
 pounded In several places, whereby the owner may be constrained to 
 sue several replevins ; on pain of forfeiting to the party grieved one 
 hundred shillings, and treble damages, 
 
 {a) 10 Vcs. 159.
 
 Sect. 1.3 Remedij for Rent by Distress. 309 
 
 By sect. 2. of the same statute, no person shall take for keeping in 
 pound or impounding any distress, above four-pence for any one whole 
 distress ; and where less hath been used, there to take less; on pain 
 of forfeiting 5/. to the party grieved, besides what he should take 
 above four-pence. 
 
 But where lands lying in two adjoining counties were held under 
 one demise at one entire rent, and the landlord distrained cattle in 
 both counties for rent arrear, it was holden, that he might chase them 
 all into one county : if the counties had not adjoined, it would have 
 been otherwise. 
 
 The offence created by this statute for impounding a distress in a 
 wrong place, is but a single offence, and shall be satisfied with one 
 forfeiture, though three or four are concerned in doing the act, as the 
 offence cannot be severed so as to make each offender separately liable 
 to the penalty ; the meaning of the statute being that the penalty shall 
 be referred to the offence, not to the person. 
 
 As, where three persons distrained a flock of sheep, and severally 
 impounded them in three several pounds, whereby, ^c. it was held, 
 that they should forfeit but one 5/. and one treble damages. 
 
 Trespass will not lie against the pound-keeper merely for receiving 
 a distress, though the original takipg be tortious : for the pound is the 
 custody of the law, and the poundkeeper is bound to take and keep 
 whatever is brought to him at the peril of the person who brings it ; 
 and if wrongfully taken they are answerable, not he ; for when cattle 
 are once impounded, he cannot let them go without a replevin or the 
 consent of the party. If however the poundkeeper goes one jot beyond 
 his duty and assents to the trespass, that may be a different case. 
 
 Neither can a poundkeeper bring an action if the pound be broken, 
 but it must be brought by the party interested. 
 
 Beasts, as is said, ought to be put in a public pound ; for if they 
 are placed in a private pound, the distrainer must keep them at his 
 peril with provision, for which he shall have no satisfaction, and if 
 they die for want of sustenance, the distrainer shall answer for them. 
 
 Dead chattels however, as household goods, &c. which may receive 
 damage by the weather, must be put into a pound covert, otherwise 
 the distrainer is answerable for them if they be damaged or stolen 
 away, and this pound covert must be within three miles, and in the 
 same county. 
 
 Now, by Stat. 11 G. 2. c. 19. s. lo. any person distraining may 
 impound or otherwise secure the distress of what kind soever it be, in 
 such place or on such part of the premises as shall be most convenient ; 
 and may appraise and sell the same, as any person before might have 
 done off the premises. 
 
 The distrainer cannot work or use the thing distrained, whether it
 
 310 Remedy for Rent hy Distress. [Chap. Xlir. 
 
 be in a pound overt or covert : because the distrainer has only the 
 custody of the thing as a pledge; but the owner may make profit of 
 it at his pleasure. 
 
 An exception to this rule exists in respect to milch kine, which 
 may be milked by the distrainer because it may be necessary to their 
 preservation, and consequently of benefit to the owner. [Cases In 
 the books cast some degrees of doubt on the legality of this dictum in 
 Cro. Jac. 148. (see Hunt's Gilberf s Laiu of DistresSy 74,) but the 
 reason of the thing is so forcible, that we incline to think that the 
 dictum of that day respecting this point, would be recognized as law 
 at this period.] 
 
 The distrainer cannot tie or bind a beast in the pound, though, it 
 be to prevent its escape ; for any act of the distrainer that tends to 
 the injury of the thing distrained is done at his peril. 
 
 But if cattle distrained die in the pound, without any fault of the 
 distrainer *, in such case he who made the distress shall have an action 
 of trespass, or may distrain again, if the distress was for rent. 
 
 If a distress be taken without cause, before it be impounded, tl\e 
 party may make a rescous. But if it be impounded, he cannot justify 
 the breach of the pound to take it out of the pound, because the dis- 
 tress is then in the custody of the law ; if however the pound be un- 
 locked, it seems he may take them. 
 
 By the common law, if a man break the pound or the lock of it, 
 or any part of if, he greatly offends against the peace, and commits 
 a trespass against the king, and to the lord of the fee, the sheriffs, 
 and hundredors in breach of the peace, and to the party in delay of 
 justice: wherefore hue and cry is to be levied against him as against 
 those who break the peace ; and the party who distrained may take 
 the goods again, wheresoever he finds them, and again impound 
 them. 
 
 Besides which, by stat. 2 IF. y M. c. 5. s. 4. on any pound- 
 breach or rescou. of goods distrained for rent, the person grieved 
 thereby shall, in a special action upon the case, recover treble 
 damages and costs against the offender, or against the owner of 
 the goods if they be afterwards found to have come to his use or 
 possession. 
 
 In an action on tliis statute, it has been adjudged, that the word 
 *' treble" shall be referred as well to the word " costs," as to the 
 word " damages," and consequently that the costs shall be trebled as 
 well as the d images («;. Indeed it is determined in general, that 
 where a statute gives treble damages the costs shall be trebled of 
 course {b). 
 
 {a) 1 Ld. Raym. ZO. (i) I Inst. JJ?.
 
 Sect. I.] Remedtjfor Rent hy Distress, 311 
 
 As to what shall be a rescoiis, if the distress while being dri- 
 ven to the pound go into the house of the owner, who delivers 
 them not, upon demand of them by the distrainer, this is a rescous in 
 law. 
 
 With respect to the disposition of the distress, which being consi- 
 dered as a pledge could not at the common law be sold -, by the stat. 
 2 W. ^ jM. sess. I.e. 5. s. 2. it is entitled, That where any goods 
 shall be distrained for rent reserved and due upon any demise, lease 
 or contract whatever, and the tenant or owner of the goods dis- 
 trained, shall not within five days next after such distress taken and 
 notice thereof, with the cause of such taking, left at the chief 
 mansion-house or other most notorious place on the premises, replevy 
 the same ; in such case the person distraining shall, with the sheriff' 
 or under-sheriff of the county, or with the constable of the hundred, 
 parish, or place where such distress shall be taken, cause the goods 
 so distrained to be appraised by two sworn appraisers, (whom such 
 sheriff, under-sheriff, or constable shall swear to appraise the same 
 truly, according to the best of their understandings,) and after such 
 appraisement may sell the same for the best price that can be gotten 
 for them, for satisfaction of the rent, and charges of the distress, 
 appraisement and sale ; leaving the overplus, if any, with the sheriff, 
 under-sheriff, or constable, for the owner's use. 
 
 In the notice for the sale of a distress under this statute, it is not 
 necessary to set forth at what time the rent became due for which the 
 distress has been made. 
 
 If the person distraining is sworn one of the appraisers, it is 
 illegal, for he is interested in the business ; and the statute says that 
 he^ with the sheriff, ^c. shall cause the goods to be appraised by two 
 sworn appraisers. 
 
 The landlord must remove the goods at the end of five days, and 
 will be deemed a trespasser for any time beyond it that he keeps 
 them. The five days allowed before a distress can be sold, are in- 
 clusive of the day of sale, wherefore it seems the distress may be re- 
 moved on the sixth day. 
 
 Thus where a distress was made and a regular notice of sale given 
 on the 1 2th day of May^ and on the afternoon of the 17th day of the 
 same month the goods were removed and sold, it was held that on 
 the evening of the 17th five days from the time of the distress had 
 completely expired, and that the removal and sale were regular ac- 
 cording to the time allowed by the statute. 
 
 Where one, who entered under a warrant of distress for rent in 
 arrear, continued in possession of -the goods upon the premises for 
 fifteen days, during the four last of which he was removing the goods, 
 which were afterwards sold under the distress : held that at any rate 
 he was liable to trespass quare clausum /regit j for continaiing on the
 
 312 Remedy for Rent by Distress. [Chap. XIII. 
 
 premises and disturbing the plaintiff in possession of his house, after 
 the time allowed by law (rt). 
 
 Notice to the owner is sufficient as against him : unless a replevin 
 has been sued by the tenant, in which case, personal notice to the 
 tenant is sufficient to warrant a sale under the stat. 2 W. l^ M. 
 sess. I. c, 5. s. 2. and is preferable indeed to notice left at the 
 mansion-house. 
 
 Upon the sale of the distress the appraisers need be sworn by the 
 constable only of the hundred in which the distress is impounded. 
 
 An irregularity in this process does not now render the distrainer, 
 as he was at the common law, a trespasser ah initio : for by stat. i i 
 G. 2. c. 19. s. 19. it is provided, that where anv distress shall be made 
 for any kind of rent justly due, and any irregularity shall be after- 
 wards done by the party distraining or his agent, the distress shall 
 not be deemed unlawful, nor the distrainer a trespasser, ab initio; 
 but the party grieved may recover satisfaction for the special damage 
 in an action of trespass, or on the case at his election. 
 
 Therefore trespass will not lie for an irregular distress, where the 
 irregularity complained of is not in itself an act of trespass, but 
 consists merely in the omission of some of the forms required in con- 
 ducting the distress, such as procuring goods to be appraised before 
 they are sold. The true construction of the provision in 1 1 G. 2. c. 
 19. s. 19. that the party may recover a compensation for the special 
 damage he sustains by an irregular distress " in an action of trespass 
 or on the case," is that he must bring trespass, if the irregularity be 
 in the nature of an act of trespass, and case, if it be in itself the sub- 
 ject-matter of an action on the case [b). 
 
 But, by sect. 20, no tenant shall recover in such action, if tender 
 of amends has been made before the action brought : and by sect. 
 2 1 . the defendant in such action may plead the general issue and give 
 the special matter in evidence. 
 
 Under the plea of the general issue, given by this Act, a landlord 
 cannot justify, except for acts done as landlord : therefore, although 
 he may justify as far as the distress goes, he cannot under this issue 
 justify expulsion. So also if the goods remain on the premises be- 
 yond the five days, he cannot justify, under this issue, entering the 
 house to remove them afterwards; but must plead a licence to justify 
 tlie asportation, or liberum tcnementum to justify the expulsion. 
 
 For goods sold therefore before five days have expired next after 
 the distress and notice, an action of trover will not lie, that being a 
 remedy which cannot be pursued since the stat. 11 G. 2. c. 19. as it 
 tends to place the landlord in the same situation as he was before the 
 passing of that Act : the action ought to be brought specially for the 
 particular irregularity. 
 
 (<») n Knit, ;,i;5. (A) % Camj). 115.
 
 Sect. 1.3 Rmne^dyfor Rent by Distress. SIS 
 
 But though the -tenant shall make satisfaction for the real damage 
 only sustained, by any irregularity in taking or disposing of the dis- 
 tress ; yet by the stat. 2 W. ^ M. sess. r. f. 5. j. 3. if any distress 
 and sale shall be made for rent pretended to be due to the person 
 distraining, where in truth no such rent is due, the tenant shall re- 
 cover double the value of the goods distrained, together with full 
 costs of suit. 
 
 Goods distrained by the plaintiff were delivered by him to the de- 
 fendant on his promising to pay the rent: an action for money had 
 and received would not lie for the value of the goods, though defend- 
 ant do not pay the rent (a). 
 
 Where there are three joint lessees, two of whom assign their in- 
 terest to the third, whose sole liability the landlord has not consented 
 to accept, the goods of the plaintiff being put on the premises by 
 permission of such third lessee and distrained by the landlord for rent, 
 and he having paid it, the three lessees are liable to him for money 
 paid to their use (3). 
 
 By Stat. 57 G. 3. <r. 93. J-. I. it is enacted no person whatsoever 
 making any distress for rent, where the sum demanded and due shall 
 not exceed the sum of twenty pounds for and in respect of such 
 rent, nor any person whatsoever employed in any manner in making 
 such distress, or doing any act whatsoever in the course of such dis- 
 tress, or for carrying the same into effect, shall have, take or receive 
 out of the produce of the goods or chattels distrained on, or from 
 the landlord, or from any other person whatsoever, any other or 
 more costs and charges for and in respect of such distress, or any 
 matter or thing done therein than as follows. Levying distress 3/. 
 man in possession per day 2s. 6d. appraisement, whether by one 
 broker or more, 6d. in the pound on the value of the goods ; stamp 
 the lawful amount thereof — all expenses of advertisements (If any 
 such) IOJ-. j catalogues, sale and commission, and delivery of goods, 
 IX. in the pound on the net produce of the sale; and no person 
 whatsoever shall make any charge whatsoever for any act, matter or 
 thing as above, unless such act shall have been really done. 
 
 By sect. 2. party aggrieved may apply to a justice of the peace, 
 who is to summon offender and hear the case; and may award 
 treble the amount of the monies unlawfully taken with full costs ; to 
 be levied by distress. 
 
 Section 3. gives to the justice a power of summoning witnesses. 
 
 Section 4. enacts that if complaint is unfounded, the justice may 
 give costs to the party complained against not exceeding 20/. limits 
 his power of making any order or judgment against the landlord to 
 cases in which the landlord shall have personally levied the distress ; 
 
 (^)4T. R.687. (i)3Esp. R. 8. 8T. R. 309. 
 
 7
 
 314 Of the Action of Debt, [Chap. XIII. 
 
 and declares that parties are not barred of any legal remedies they 
 might have before the passing of this act, except as far as any com- 
 plaint shall have been determined by the order and judgment of the 
 justice before whom it has been brought. 
 
 Section 6, enacts that in all cases whether the sum distrained for 
 shall or shall not exceed 20/., the person levying the distress shall 
 give a copy of all his charges signed by him, to the person on whose 
 goods the distress shall be levied. 
 
 Section II. Of the Action of Debt, ^johere the Lease is 
 
 by Deed, 
 
 Another remedy for the recovery of rent is by action of debt, or 
 covenant, where the premises are demised by deed. 
 
 An action of debt or covenant lies for non-payment of the rent on 
 the word ** yielding" in a lease for years j for it is an agreement to 
 pay the rent, which will make a covenant. 
 
 The action of debt is founded upon a contract, either express or 
 implied, in which the certainty of the sum or duty appears, and the 
 plaintiff is to recover the sum in numero^ and not in damages (o). 
 
 Debt, being an action founded on an express contract, rents re- 
 served on leases for years were at all times recoverable by this species 
 of remedy (^). 
 
 So, debt lies for rent upon a lease, though the defendant entered 
 before his title began : for though clearly he is a disseisor by his 
 entry, and the accruing of his term shall not alter his estate, yet 
 debt lieth for privity of contract ; and whether the entry be tortious 
 or not, it cannot discharge the contract for payment of the rent (r). 
 
 At common law, debt did not lie for rent reserved upon a freehold 
 lease during the continuance of the lease [d). 
 
 But Stat. 8 Ann. c. 14. s. 4. enacts, that any person entitled to 
 rent arrear on a lease for life or lives, may have an action of debt 
 during the existence of the life, as on a lease for years during the 
 term. 
 
 But debt does not lie cither at common law, or by stat, 8 Ann. 
 c. 14. for the arrears of an annuity or yearly rent, devised payable out 
 of lands to A. during the life of B.y to whom the lands are devised for 
 life, B. paying the same thereout so long as the estate of freehold 
 continues {e'). 
 
 By the stat. 32//. 8. c. 37. /. i. the executors and administrators 
 of tenants in fee, fee-tail, or for life, of rent-services, rent-charges, 
 rents-seek and fee-farms, may bring debt for the arrearages against 
 
 {a) BulL N. P. i^>7. (h) F.sii. N. P. i88. Lit. s. 58. (0 Cro. r.liz. 169. i Str. 550. 
 (0 % U. Raym. ioj6. (0 4 M. & S. 113.
 
 Sect. II.] tvhere the Lease is hy Deed* SI.5 
 
 the tenant who ought to have paid the same. This statute extends 
 to all tenants for life. 
 
 Though it be not necessary in general to set out the indenture in 
 the declaration in debt for rent, yet it seems necessary where the 
 action is brought on a lease of tithes, which being an incorporeal 
 hereditament lying in grant, could not be granted without deed [a). 
 
 If one of two lessees assign his interest, and the other die before 
 the rent becomes due, an action of debt in the debet et detinet will lie 
 against the assignee and executrix of the deceased lessee for the whole 
 rent [b). 
 
 So, if the lessee for years will assign all his term in part of the 
 land, the lessor shall have a joint action against the lessee and as- 
 signee {/). 
 
 If there is a lessee for years, and he assigns all his interest to an- 
 other, yet may the lessor still have an action of debt against him for 
 rent in arrear after the assignment : first, because the lessee shall not 
 prevent by his own act such remedy as the lessor hath against him on 
 his contract ; 2dly, that the lessee might grant the term to a poor 
 man, who would not be able to manure the land, and so for need or 
 malice the land vi'ould lie untilled, and the lessor be without re- 
 medy, either by distress or action of debt {d). 
 
 But the lessor may either tacitly or expressly accept the assignee 
 for his tenant, and so discharge the original lessee : and if he once 
 accepts rent from the assignee, (who is bound however no longer 
 than while in possession) he can never resort back again to the first 
 lessee {e). 
 
 The executor or administrator of a lessee for years, may, like any 
 other assignee, assign the term, and shall not be chargeable for rent 
 after the assignment (_/). 
 
 In a plea of assignment in a lease of tithes, it is necessary for the 
 defendant to allege that he assigned the term by indenture ; for that 
 was always required by the common law j and the statute of frauds 
 29 C. 2. c. 3. does not apply to cases of incorporeal hereditaments, 
 for they are not within the mischief intended to be remedied by the 
 statute {g). 
 
 If the lessor assign his rent, without the reversion, the assignee (if 
 the tenant agrees) may maintain an action of debt for the rent, be- 
 cause the privity of contract is transferred [h). 
 
 If the lessor grant away his reversion, he cannot have an action of 
 debt for the rent, which being incident to the reversion, passes with 
 it. — ^The grantee of the reversion, therefore, can alone have the ac- 
 tion (i). 
 
 (<j) z Saund. 297. n. I. (i) Cro. Jac. 411. (c) fbid. (</) i Ld. Raym. 173. 
 
 4 T. R. 98. {e) Esp. N. P. 201. 4 T. R. 98. (/) Ibid. 
 
 is) % Saund. 198. h. 3. U^) 3 Sulk. 118. (/) Esp. N. P. 30Z.
 
 316 Of the Action of Debt, [Chap. XIII. 
 
 But the grantee even cannot have debt against the lessee if he has 
 assigned over ; for there was no privity between them but by reason 
 of the privity of estate, and that being gone by the assignment, this 
 action will not lie [a). Such is the case, whether the person claiming 
 the rent comes in by succession or grant : thus the successor of a 
 prebend connot bring debt against the executor of a lessee of the pre- 
 bendary, where such executor had assigned (b). 
 
 But if a lessee assign part of the land demised, a grantee of the re- 
 version shall have debt against him for the whole rent : for the entire 
 estate remaining In one part of the land, the privity remained entire 
 and would support the action (c). 
 
 A devisee may maintain debt for his share of the rent, and if there 
 be a devise of a rent to be equally divided between three, each may 
 have his action for his share [d). 
 
 An agreement between the lessor and the assignee of the original 
 lessee, " that the lessor should have the premises as mentioned in the 
 lease, and should pay a particular sum over and above the rent annu- 
 ally towards the good-will already paid by such assignee," operates as a 
 surrender of the whole term, and the sum reserved for good-will being 
 to be paid annually in gross and not as rent, the assignee cannot dis- 
 train either for that, or for the original rent, but he has a remedy by 
 assumpsit for the sum reserved for the good- will [e). 
 
 If a lessee for years re-demise his v/hole term to the lessor with a 
 reservation of rent, it operates as a surrender of the original lease, and 
 therefore he cannot maintain debt for rent against the executor of the 
 original lessor ; but must seek relief in equity [f). 
 
 If a lessee assign his whole term to a stranger, he may bring debt 
 for the rent reserved on the contract against him or his personal |:e- 
 presentatives. 
 
 So, if the lessee for years assigns all his term to another, reserving 
 the rent to himself, he shall have an action of debt for the arrears 
 during the term ; for though not properly a rent for want of a rever- 
 sion, yet it partakes of its nature, being a return for the profits which 
 are annual {g). 
 
 Debt docs not lie for rent upon an expired lease. Therefore where 
 lessee for life made a lease for years, rendering rent, and afterwards 
 surrendered to the lessor upon condition : the lessee for years took a 
 new lease for years of the lessor ; the lessee for life performed the 
 condition, and put out the lessee for years, who re-enters j and the 
 lessee for life brought debt for the first rent reserved : and it was ruled 
 that it was not maintainable, for the lease out of which it was reserved 
 was gone and determined ; for though the surrender of the tenant for 
 lifei which made the lessee for years immediate tenant to the first 
 
 {a) Cro Eli/.. .-528. (/,) Ibid. SSS- W Ibid. 633- (</) Ibid. 637. 
 
 (0 I T. B. 44X. (/) ^ Mod. 174. {g) 1 Su. 405.
 
 Sect. II.] "tvhere the Lease is by Deed. 817 
 
 lessor and so enabled him to make such surrender, was conditional, 
 yet the defeasance of the estate for life, by performance of the condi- 
 tion, cannot defeat the estate of the lessee for years, which was absolute 
 and well made, and then the rent reserved thereon is gone likewise (o). 
 
 Yet if a lease be made to a woman dum sola^ and she marries, the 
 term expires and she dies ; debt lies against the husband for rent ac- 
 cruing during her lifetime ; for he is chargeable by reason of the per- 
 ception of the profits [b). 
 
 So, in the case of a lease for years, rendering rent, and for non- 
 payment the lease to be void ; although the lease become void, yet for 
 rent due before, debt lies {c). 
 
 The Declaration. — In declaring in debt for rent on a lease for years, 
 the plaintiff need not set forth any entry or occupation : for though 
 the defendant neither enters nor occupies, he must pay the rent, it 
 being due by the lease or contract, and not by the occupation : there- 
 fore though it is usual in the declaration to say " by virtue of which 
 the lessee entered," yet it is not necessary (d). 
 
 If rent is reserved quarterly and half yearly, each gale is a distinct 
 debt for which the lessor may have his action, and may declare for an 
 entire gale at the end of any quarter or half year, without shewing 
 how the former quarter or half year has been satisfied. But if he 
 declares only for part of the gale due at the end of any half year or 
 quarter, it is bad, unless he shews how the remaining part was satis- 
 fied ; for otherwise the lessee may be exposed to many actions for the 
 same demand {e). 
 
 Whenever rent or any other duty is reserved quarterly or half yearly, 
 the declaration should always state when it was due and owing, or 
 it will be bad (/). 
 
 So, if the plaintiff declares for less rent than a year upon an annual 
 reservation of rent without shewing how the rest was satisfied, it is 
 bad ; and no action will lie for half a year's rent if the rent be re- 
 served annually [g). 
 
 In debt for rent against the devisee of the lessee, the plaintiff must 
 shew that the defendant entered by assent of the executor, or virtute 
 bgationis : and a, demand must be made of the rent. 
 
 Where the plaintiff in his declaration undertakes to recite a lease, 
 any mis-recital is fatal, if the action be founded on such lease. 
 
 Thus, if a lease, upon which a gross sum and three fowls are re- 
 served by way of rent, is represented in pleading to have reserved the 
 gross sum without mentioning the fowls, the variance is fatal (h). 
 
 In debt by remainder-man for rent reserved upon a lease by tenant 
 
 (<3) Cro. Eliz. 264. Bac, Abr. tit. Leases. (S. 3. 1.) (^) i Lev. 25. (/;) Cro. Elit. 78. 
 (</) Salk. 109. iLd. Raym. 171, (<r) i Verii. IS9. 3 Salk. n8. 2 Saund. 303.11.1). 
 
 (/) Show, 8. {g) Cro. Eliz. 535, 6. (4) % Ld. Raytn. 79a. Doug. 668.
 
 318 Of the Action of Debt,. [Chap. XIH;; 
 
 for life, the plaintiff must shew what authority the tenant for life had 
 to make the lease [a). 
 
 "The vetme may be laid either where the land lies or where the deed 
 was executed, or it should seem in any place, if the action is against 
 the original lessee [b). 
 
 But if the action is against the assignee of the lessee, it musili be 
 laid where the land lies ; for he is chargeable only on the privity of 
 estate [c). 
 
 So, against the executor of the lessee, the action must be brought 
 where the land lies ; for he is chargeable as assignee on the privity of 
 estate only {d). 
 
 So also debt for rent by the assignee of the lessor against the lessee 
 must be brought where the land lies : but it is otherwise in the case of 
 covenant which is transitory [e). 
 
 In debt for rent against an executor or administrator, if the whole 
 rent has incurred in the lifetime of the lessee, the action against his 
 executor must be in the detinet only : and the executor, though he do 
 not enter, is still chargeable in the detinet^ because he cannot so waive 
 the term as not to be liable for the rent as far as he has assets (/"). ■ .. . 
 
 But for the rent incurred after the death of the lessee, the action 
 may be brought either in the debet or detinet^ if the executor enters ; 
 for he is charged as assignee in respect of the perception of the profits, 
 and it is not material whether he has assets or not. Therefore he 
 cannot in such case plead plene administrav'it : and if judgment be 
 given against him, it is de bonis propriis. — But if the land be of less 
 value than the rent, he may plead the special matter, viz. that he has 
 no assets, and the land is of less value than the rent, and may pray 
 judgment whether he shall be charged otherwise than in the detinet 
 only. The lessor has his election to charge him either in the debet and 
 detinet J or the detinet only, in which latter case the judgment is de bonis 
 testatoris [g), ^mtm.b£ iifi .io..jijri3x3 
 
 It seems sufficient to declare against the defendant as executor,' with* 
 out naming him so in the beginning of the declaration (/j). i 
 
 But after a judgment obtained against an executor, one may have 
 debt in the debet and detinet suggesting a devastavit, and thereby charge 
 him de bonis propriis : for it is then properly his own debt j and a judg- 
 ment against an executor or administrator by default, confession, or 
 after verdict, is an admission of assets to satisfy the judgment; and if 
 no assets are to be found, it is evidence of a devastavit [^i). 
 
 An executor may bring an action before probate ; but he cannot 
 declare till probate be granted, for when he comes to declare he must 
 
 (o) a I.d. Raym. 792. (/.) 2 Salk. 651. aStr. 176. (0 Ibid. Carth. 177. 
 
 1 Bos. and I'uU. 23. (/J) Esp. N. 1'. 213. (/) 1 WiU. 165. (/) i Saund. I. n. X. 
 
 (j) Ibid, (t) Ibid. 111. n. %. (») Ibid. 216. 219. & 237- '" «»•
 
 Sect. II.] where the Lease is by Deed. 819 
 
 produce his letters testamentary. If, however, the probate has been 
 lost, an exemplification from the ordinary will be sufficient [a). 
 
 But an administrator cannot bring an action till administration be 
 granted ; for the power of an administrator is derived from the ordi- 
 nary, as that of an executor is from the will [b). 
 
 Declarations by executors or administrators must be in the detinet 
 only ; for a person can only be said to be the party to whom the 
 money when received would belong, that is, to the testator's or intes- 
 tate's estates, not to his executor or administrator. Such is the case, 
 though the rent be reserved on a demise which commenced on the 
 death of the testator, so that he never received any rent (c). 
 
 In actions by an executor, the declaration should state " that the 
 testator was dead and the plaintiff complete executor." But if the 
 executor has recovered and had judgment, and afterwards brings a 
 scire facias on it, such averment is not necessary ; though it would be 
 otherwise, had the scire facias been on a judgment obtained by the 
 testator himself, for by the first judgment the testator's right was es- 
 tablished, but where the first judgment has been by the testator, the 
 executor's right does not appear without such averment (d). 
 
 So, a declaration by an administrator is good, stating in general 
 *' that administration was granted to him by the bishop of, ^c." with- 
 out saying that he was ordinary, or to whom the right to grant admi- 
 nistration belonged j unless it be a peculiar jurisdiction, in which case 
 it should be set out. The reason is, that the defendant might contest 
 the right of the person granting administration, or shew that admi- 
 nistration was granted to another, or that there were Ifona notabilia. 
 But a verdict would cure the fault {e). 
 
 In a declaration by an executor of an executor, he should set out 
 <* that the first executor proved the will :" for otherwise the plaintiff 
 has no title ; for if there had been no probate granted to the first 
 executor an administration cum testamento anneao should be granted of 
 the effects of the first testator to the next of kin. But this also would 
 be cured by a verdict {J), 
 
 If the action is brought by the assignee of the reversion against the 
 lessee fcJr rent, he must setj forth the estate of the original lessor, 
 and the several mesne assignments, down to himself: for these arc 
 necessary to make out his title, and the validity of these assignments 
 being matter of law, ought to be set forth for the court to judge 
 
 For it is a general rule, that estates in fee-simple may be alleged 
 generally, but the commencement of estates-tail, and other particular 
 estates must be shewn, where they go to the ground of the action ; 
 
 (a) Salk. 30a. I Str. 41 z. (i) Esp. N. P. 218. («) Ibid, Cro. Elie. 84O. 
 
 (fi I 5u. 631. (/) Cro. Elia. 870. (/) z Str. 716. {jg) E$p. N. P. %V3.
 
 S20 Of the Action of Debt, [Chap. XIII. 
 
 but not so where they are only inducement : the life therefore of the 
 tenant in tail or for life ought to be averred [a). 
 
 But where the action is by the lessor or his heir against the as- 
 signee of the lessee, the plaintiff need not set out the several mesne 
 assignments to the defendant, for they do not lie within his know- 
 ledge : but it is sufficient for the plaintiff to set forth the original de- 
 mise to the first lessee, whose estate and interest have by several 
 mesne assignments come to the defendant ; and proof of possession 
 and occupation shall be sufficient to charge him {b). 
 
 An assignee of a lease, assigned to him by an administrator, is not 
 obliged, it should seem, to make a profert in curiam of the letters of 
 administration (c). 
 
 Respecting the venue^ it may in addition be observed that, in debt 
 for rent upon a lease, founded on the privity of estate, as when 
 brought by the assignee or devisee of the lessor against the lessee ; or 
 hy the lessor or his personal representatives, against the assignee of 
 the lessee : or against the executor of the lessee, in the debet and de- 
 tinety the action is local -, and the venue must be laid in the county 
 where the estate lies. — But in debt by the lessor against the lessee, or 
 "his executor in the detinet only, the action is transitory, and the venue 
 may be laid in any county (d). 
 
 In debt for rent, not setting forth in what parish the lands were 
 situate, the particulars of demand described them in a wrong parish ; 
 yet it was held that the plaintiff might recover, it not appearing that 
 any misrepresentation was intended, or that the defendant held more 
 than one parcel of land of the plaintiff, so as to be misled by it [e). 
 
 The Pleas. — The pleas to an action of debt for rent reserved on a 
 lease by deed are, i. Nil debet; i. Non est factum ; 3. Riens in ar- 
 rear ; 4, Entry and eviction ; 5. Infancy. 
 
 Wherever the debt is founded on the deed, the plea cannot contra- 
 dict it : but there is a difference where the specialty is but an induce- 
 ment to the action and matter of fact is the foundation of it, for 
 there «z7 debet is a good plea : as in debt for rent by indenture for the 
 plaintiff need not set out the indenture. Therefore the defendant 
 "may plead nil debet to rent reserved by indenture, which he could not 
 do in the case of a bond ; because an indenture of lease does not ac- 
 knowledge an absolute debt as a bond does, for the debt arises from 
 the enjoyment of the thing demised, and so the indenture is but in- 
 ducement (y). 
 
 Nil debet is a good plea in debt for rent on a lease by indenture, for 
 
 the foundation of the action is a mere fact, namely, the arrears of 
 
 rent, and the indenture is held to be only inducement, which the 
 
 plaintiff need not set out in his declaration {£). 
 
 (o) Kip. N. P. 440. (/^) Ibid. (f)3Wil3. 5. (./) Tidd's t'ract. 
 
 (<) 3 M. & S. 380. (/) a Ld. Raym. 1503. Esp. N. P. 233. 4Tidd's Traci. 
 
 (f) aSaund. a97. n. i.
 
 S-ect. II.J 'where the, Lease is by Deed, 321 
 
 But, though the defendant may plead nil dehet^ he cannot give in 
 evidence under it, that the plaintiff had nothing in the tenements (a). 
 
 Though in debt for rent on a demise by indenture, it is not neces- 
 sary to declare that it was by indenture, but " qiiod cum dimisissct" 
 generally Is sufficient ; yet if the defendant pleads nil hahu'it in tene ' 
 mentis^ it it said to be prima facie a good plea, because no estoppel 
 appears upon the record {b) ; and if the plaintiff replies that he had 
 a sufBcient estate to make the demise, he loses the benefit of the 
 estoppel, and as he will not rely thereon, but will reply hahuit^ the 
 jury shall find the truth ; but if he replies (as he ought to do) that 
 the demise was by indenture, and concludes unde petit judicium , if the 
 defendant shall be admitted to plead the plea against his own accep- 
 tance of the lease by indenture, the defendant shall be stopped {c). 
 
 But where the declaration states the lease to be by indenture, the 
 plaintiff need not reply the estoppel, but may demur, because the 
 estoppel appears on the record : otherwise, as is before mentioned, if 
 the declaration be " quod cum dimisisset" without saying that it was 
 by indenture (d). 
 
 In debt on bond conditioned for the payment of rent reserved upon 
 a demise according to certain articles, the defendant is estopped to 
 say, that he had not any thing in the land demised by the articles [e). 
 
 Nil hahuit in tenementis has been lield to be a good plea on demise 
 by deed poll, because, as to the lessee, it is no estoppel. It seems in- 
 deed settled that it is not admitted to be pleaded by a lessee in any 
 case where occupation is enjoyed : for the Court will not permit a 
 tenant to impeach his landlord's title : nor indeed will an action for 
 rent lie where the title is in dispute. So, a tenant cannot set up the 
 title of the mortgagee against the mortgagor : because he holds under 
 the mortgagor and has admitted his title (_/"). 
 
 But a tenant is not at all events estopped to deny his landlord's 
 title i the estoppel exists only during the continuance of his occupa- 
 tion ; and if he be ousted by a title paramount, he may plead it [g). 
 
 If in a lease special days of payment are limited by the redden- 
 dumj the rent must be computed according to that, and not the ha- 
 bendum (h). 
 
 In debt for rent, where the plaintiff had declared for more than 
 was due upon his own shewing, upon nil debet pleaded, he had judg- 
 ment and damages and costs, notwithstanding j and it being moved 
 in arrest of judgment that the plaintiff had made an entire demand 
 for rent to a certain sum when it appeared that he could not have an 
 
 {a) 2 hd. Raym. 1551. Salk. 277. 6 T. R. 6z. s. p. 7 T. R. 537, 6 T. R. 62. 6 Mod. 
 258. a Ld. Raym. 105 1, 4. i Saund. 276. n. i. (/J) Ibid. (c) Bull. N. P. 170. 
 
 aLd. Raym. 1551. (</) i Salk. 377. i Saund. 25. n. 4. (c) Cro.Eliz. 362. 
 
 (/) 3 Lev. 146. Esp. N. P. 233. 5. 5 T. R. 5, i T. R. 760. n. a. 
 
 C?) 3T.R. 441- (/&) Salk. 141. 
 
 Y
 
 322 Of the Action of Debt, [Chap. XIII. 
 
 action for so much, yet the Court held that he might release the sur- 
 plus and damages, and take judgment for the residue [a). 
 
 If the lessor accepts rent due at the last day of payment, and gives 
 a discharge thereof and acquittance, this shall discharge all preceding 
 arrears, and this would be good evidence on nil debet ; for it is not 
 presumable that a man would give a receipt for the last gale of rent, 
 when the former gales were unpaid {b). 
 
 So, if the defendant pleads " levied by distress" and so nil debety he 
 may give a release or payment in evidence : and even though there 
 never was any distress made, yet is the evidence of payment or the 
 release good ; for the issue is on the debt, and the defendant proving 
 it discharged, by any means, supports this issue (c). 
 
 If the lessor has covenanted to repair, and bring debt for his rent, 
 it seems that the lessee may plead that he expended the rent in neces- 
 sary repairs, and so owes nothing [d) : but he must plead this spe- 
 cially, and cannot give it in evidence on the general issue, for he 
 might have covenant on it against the lessor ; wherefore also, if the 
 lessor had brought covenant for rent instead of debt, the lessee could 
 not plead expenditure in reparations at all, the remedy being re- 
 ciprocal {e). 
 
 However, where there is an express covenant in the same inden- 
 ture, that the lessee may deduct for charges and repairs, there clearly 
 the defendant may plead it in bar to debt for rent {/). 
 
 So, the defendant may plead fion est factum ; for, denying the ex- 
 istence of the deed, there can be no estoppel [g). 
 
 If the defendant plead rion est factum^ the plaintiff must prove the 
 execution of the deed, and proof that one who called himself B. exe- 
 cuted it, is not sufficient, if the witness did not know it to be the 
 defendant {I3). 
 
 Under this plea, the defendant may give in evidence any thing that 
 proves the deed to be avoided, though it were delivered as his deed ; 
 for the plea is in the present tense, and if it be avoided, it is not now 
 his deed (/). 
 
 But if the defendant plead rasure ^ sic non est factum y nothing else 
 is evidence but rasure (X). 
 
 Riens in arrere is a good plea in debt for rent, though it would be 
 bad in covenant for rent ; for in covenant such plea confesses the co- 
 venant broken, and goes only in mitigation of damages (/). There- 
 fore, where the defendant pleaded " that nothing of the rent is in ar- 
 rear and unpaid as by the declarations is above supposed," it was held 
 
 (fl) 5 Mod. ai4. (A) Esp. N. P. 234. Co. I,it. 373. .n. 3 Co. 65. b. i Sid. 44. 
 
 (0 Salk. 284. Cro. Fliz. 140. (</) Ibid. aaa. {c) Bull. N. P. 176. 9 Mod. 60. 
 
 1 l.d. U.iym. 420. 6 T. R.650. (/) i Lev. 15a. Esp. N. P. 234. {g) U'id. 
 
 13ull. N. P. no, (/-) Ihid. 171. (/) Ibid. (i)Salk. 284. (/) Esp. N. P. aji-
 
 Sect. IL] xvhere the Lease is hy Deed. 323 
 
 to be the same as if he had said nil debety and that it related to the 
 time of the action brought, as well as that of the plea pleaded, for if 
 the rent was due and is not at the time of the plea, it could not have 
 ceased to be due, but by the plaintiff's accepting it ; and if so, he 
 waives the action, though it was well brought at the time {a). 
 
 Under this plea, the defendant may deny the validity of the 
 lease {b). 
 
 The defendant may also plead payment at or after the day ; for ac- 
 ceptance of rent may be pleaded in bar to debt for rent, though not 
 to a recovery in covenant {c). 
 
 If the defendant plead a tender on the land at the day, he must 
 make z profert of the money [d). 
 
 W^ere the plaintiff gave a note of hand for rent in arrear, and 
 took a receipt for it when paid, the defendant afterward distrained 
 for the rent, and the plaintiff brought trespass : it was holden, that 
 notwithstanding this note, the defendant might distrain ; for it is no 
 alteration of the debt till payment {e). 
 
 So, if a landlord accept a bond for rent, this does not extinguish 
 it, for the rent is higher, and the acceptance of a security of an un- 
 equal degree is no extinguishment of a debt. But a judgment ob- 
 tained upon a bond would be an extinguishment of it(y^). 
 
 Entry and eviction of the whole or any part of the premises de- 
 mised, is a good plea in bar to an action of debt for the rent. 
 
 It must be a tortious entry and eviction, or expulsion, to occasion 
 a .suspension of the rent ; a plea that states a mere trespass will not 
 be sufficient {g) : for if the lessor enter by virtue of a power re- 
 served, or as a mere trespasser, yet if the lessee be not evicted, it 
 will be no suspension of the rent {h). 
 
 Therefore, where the lessee pleaded in bar that the lessor entered 
 on the premises and broke and pulled down the ceiling of a summer- 
 house and tore up the benches, whereby the lessee was deprived of 
 the use thereof, without any eviction being stated, it was held to be 
 bad [i). 
 
 Debt was brought upon a lease for years of land in D. for rent ar- 
 rear for a year and a half at the Annunciation ^ 19 "J. i. The defend- 
 ant pleaded, and confessed the lease and reservation ; but further 
 pleaded, that the lessor and all those whose estate, ^c. had common 
 in ten acres in E. always for their beasts levant et couchant upon the 
 said tenements, every year after corn sown, from August 7, until the 
 corn reaped and carried away ; and that before any rent was due, the 
 lessor inclosed the said ten acres, wherein he ought to have had his 
 common, with hedges and ditches, and ejected him, so as he might 
 
 (a) Cowp. 590. {b) Cro. Eliz. 398. (c) i Tidd's Pract. 7 Mod. 198. 
 
 \d) I Ld, Raym. 83. \e) Bull. N. P. iSi. (/) Ibid. (^) Cowp. 242. 
 
 ■ \h) Bull. N. P. 177. («•) C<?wp. Z42- 
 
 Y 2
 
 324 Of the Action of Debt, ' [Chap. XIIL 
 
 not use his common, and thereby his rent was extinct : whereupon it 
 was demurred (among other objections) that the land inclosed is not 
 alleged to be sown with corn •, otherwise, by his precription, he 
 is not to have common, and the Court held that the plea was 
 ill {a). 
 
 The plea must state an eviction or expulsion of the lessee by the 
 lessor, and a keeping him out of possession until after the rent be- 
 came due ; otherwise it will be bad {b). 
 
 In debt for rent, it is optional for the defendant to plead the en- 
 try and expulsion by the plaintiff, or to give it in evidence upon nil 
 debet {c). 
 
 Infancy is another good plea in debt for rent : but a lease made to 
 an infant is not void, but voidable only ; and if it be beneficial to 
 him, he is liable to an action for the rent reserved (d). 
 
 Therefore, where to debt for rent, the defendant pleaded infancy at 
 the time of the lease made ; on demurrer, the Court held that the 
 lease was voidable only at the election of the infant, manifested by 
 waiving the land before the rent-day came ; but he not having done 
 so, and being of age before the rent-day came, it was deemed an 
 election, and the plaintiff had judgment [e). 
 
 A set-off may also be pleaded to a general issue in this action. 
 Touching this plea, it was first given by stat. iG. 2. c. 22. which 
 enacts, That where there are mutual debts between the plaintiff and 
 defendant, or if either party sue or are sued as executors or admini- 
 strators, where there are mutual debts between the testator or the in- 
 testate and the other party, one debt may be set off against the other, 
 and such matter given in evidence on the general issue, or pleaded 
 in bar ; but if intended to be given in evidence on the general issue, 
 notice must be given of the particular sum intended to be set off, 
 and on what account it has become due. 
 
 The Stat. S G. 2. c. 24. further enacts. That mutual debts may be 
 set off against each other, notwithstanding such debts were of diffe- 
 rent natures, unless in cases where either of the debts accrued by 
 reason of a penalty contained in any bond or specialty, in which case, 
 the debt intended to be set off must be pleaded in bar, and in which 
 plea shall be shewn how much is truly due on either side ; and in 
 case the plaintiff shall recover, judgment shall be entered for no more 
 than appears to be due after one debt set against another. 
 
 The general issue mentioned in the statute must be understood to 
 mean any general issue. 
 
 With respect to the statute of limitations, although the words of 
 that statute are general as to tiie limitation of all actions of debt for 
 arrearages of rent, yet it has been adjudged that an action <)f debt 
 
 (a) Cm. J,r. 680. (i) I Saund. 204. n. 2. {c) 1 Mod. 35- »»'- 
 
 {J) Cio. J.ic. 320. (f) Ibid.
 
 Sect. II.] where the Lease is bij Deed. .325 
 
 for the arrearages of rent reserved by indejiture was not within the 
 meaning of the said statute («). 
 
 With respect to a release, it is said that it cannot be given in evi- 
 dence without pleading ; for it being a discharge by deed, all legal 
 solemnities must be shewn to the Court. But this seems to be erro- 
 neous, for we have seen that under the plea of «// debety a release 
 may be given in evidence ; and a release may be given in evidence 
 under any general issue {b). 
 
 A release of all demands will not operate to release rent before it 
 becomes due, for then there is no demand ; but it will release rent 
 then due [c). 
 
 Therefore if a man lets land to another for a year, yielding the rent 
 at Jkfichaehias, and before Michaelmas the lessor releases to the lessee 
 all actions, yet after the Feast, the lessor may have his action for rent, 
 for the release does not discharge it •, for the rent is no debt till the 
 day on which it is payable, as it is payable out of the profits of the 
 land, and if the lessee is evicted before the day, no rent is due ; but 
 the lessor may discharge the lessee of the rent before the day by a 
 special release (^). 
 
 If the defendant insists that the lease declared on is not the plain- 
 tiff's, the plaintiff must shew that it was made by one who had au- 
 thority from him to execute it in his name, and the authority need 
 not be produced. But the lease must be made and executed in the 
 name of the principal (f). 
 
 In debt for rent by husband and wife, upon a lease by her and her 
 first husband, it is a good plea that her first husband was sole seised, 
 and that she had nothing in the land {f). 
 
 As to the evidence on the part of the defendant, if he plead nil 
 debety he may give the statute of limitations in evidence ; for the sta- 
 tute is in the present tense, and so makes it no debt at the time of 
 pleading {g). 
 
 So, upon the same issue, he may give entry and expulsion in evi- 
 dence {h). 
 
 The jury, besides finding the debt, ought to give damages for the 
 detention of it, which are usually one shilling, though under particu- 
 lar circumstances they may be more. 
 
 In debt for rent money may be brought into Court (i). 
 
 Though the debt is by specialty, yet if it depends upon something 
 extrinsic, as rent for example, the plaintiff may have a verdict for 
 what is really due, though more is demanded. 
 
 Therefore in an action of debt on a lease for rent, at 2/. 13X. a- year, 
 if the plaintiff declare for 100/. due for so many years' arrear, and it 
 
 {a) I Saund. 38. {b) Dyer, 28. la H. 8. i. Salk. 384. Cro. Eliz. 140. {c) Salk, 578. 
 (J) Co. Lit. 193 b. (t^) Bull. N. P. 177. (/) Cro. Eliz, 700. (^v Salk. 278. 
 
 \b) Bull. N. P. 177. (/) I Tidd's Pract. 482.56a. Salk- 659.
 
 326 Of the Action of Covenant, [Chap. XIII. 
 
 appears that a mistake has been made, and that he has declared for 8/. 
 too much, yet after verdict if he release the 8/. he shall have judg- 
 ment for the residue. So, if he demand more than upon his own 
 shewing is due, he may, after demurrer, remit the overplus, and enter 
 judgment for the rest (a). 
 
 But as a sum certain is always claimed, the verdict must go to the 
 whole of it; that is, if the jury find part to be due, they must find 
 «// debet as to the rest ((^). 
 
 If there be judgment against two, and one of them dies, the plain- 
 tiff may have execution against the survivor (c). 
 
 Of Debt on Bondy for^ iffc. — In an action for debt on bond for per- 
 formance of covenants, the breach must be as particular as the cove- 
 nant (d). 
 
 So, it was held, that the defendant in pleading to such action cove- 
 nants performed, must shew the indenture from the counterpart (<?). 
 However, as to such particularity being requisite vide postea. 
 
 In debt on bond to perform all covenants, £fff. a breach cannot be 
 assigned for non-payment of rent, without shewing a demand, except 
 performance be pleaded {f). 
 
 A demurrer to a breach of covenant after plea of covenants per- 
 formed confesses the breach, and contradicts the plea {g). 
 
 Yet to a plea of performance to debt on bond for breach of cove- 
 nants, a replication of non-payment of rent, without stating a demand, 
 is good ; for a denial of such demand would have been a departure 
 from the plea (h). 
 
 Where performance is pleaded, and matter of excuse is afterwards 
 set forth in the rejoinder, it is a departure ; it should have been 
 pleaded in bar (/*). 
 
 Section III. Of the Action if Covenant, ivhere the Lease 
 
 is hij Deed, 
 
 An action of covenant also lies by the landlord for the recovery of 
 his rent, if the demise be by deed ; for covenant is an action that lies 
 for the recovery of damages for the breach of any agreement entered 
 into by deed between the parties if) ; but the agreement must always 
 be by deed, though whether it be by indenture or deed-poll it equally 
 lies (/). 
 
 If the agreement be by indenture, it is sufficient in order to main- 
 tain this action against tlie covenantor that he has sealed it and de- 
 
 (a) 8 Mod. aij, 12 Mod. 9.1. s. c. {b) Co. Lit. 227. n. (<:) .Sir T. Raym. a6. 
 
 (r/) II Mod. 312. (0 6 Mod. 237. (/) Doug. 667, &c. Cro. r.liz. 828. 
 (j;) ILid. 82';. (A) Cro. Car. 76. (/) Halk. 221. (^) Lsp. N.P. 266. 
 
 (0 F. N. B. I4J. L.
 
 Sect. III.] 'where the Lease is ht) Deed. 327 
 
 iivered it to the covenantee, though the covenantee never sealed 
 it(«). 
 
 Neither the word *< covenant," nor any particular form of words, 
 is necessary to constitute a covenant in deed ; for any form of expres- 
 sion under the hand and seal of the parties, importing an agreement, 
 will support this action, as amounting to a covenant (^). 
 
 Thus in the case of a lease of lands, in which are the words " yield- 
 " ing and paying" so much rent, this is an agreement for the pay- 
 ment of rent, which amounts to a covenant, and this action lies for 
 the non-payment (c). So, if the lease be, yielding such a rent, free 
 and clear of all manner of taxes, charges, and impositions whatsoever, 
 covenant lies if the lessee do not pay the whole rent discharged of all 
 taxes, before or afterwards imposed {d). 
 
 The covenant to pay rent is absolute, and if the tenant sustains any 
 injury, he may have his remedy, but cannot set it oiF against the 
 demand for rent {/). 
 
 As where in covenant for a year's rent, from Michaelmas 1725 to 
 1726, the defendant shewed upon oyer of the lease, that he as lessee 
 by covenant was bound to repair in all cases except fire, and then 
 pleaded that before -MzVi6a£'//««j- 1725 the premises had been burned 
 xlown, and not rebuilt by the .plaintiff during the whole year, so that 
 he had no enjoyment for the whole time claimed : on demurrer, the 
 plaintiff had judgment notwithstanding (/^). 
 
 Respecting executors and administrators, as in debt so in covenant 
 for rent incun-ed after the death of the lessee, the lessor has his elec- 
 tion to charge the executor either as executor, in which case the judg- 
 ment must be de boms testatoris, or as assignee without naming him 
 executor, but stating generally in the declaration, that the estate of 
 the lessee in the premises lawfully came to the defendant, in which 
 case the judgment shall be de bonis propriis [g). 
 
 The assignee of a term is bound to perform all the covenants annex- 
 ed to the estate ; as if A. leases to B. and B. covenants to pay rent 
 during the said term, and B. assigns to C, C. is bound to perform 
 the covenants during the term though the assignee be not named ; 
 because the covenants run with the land, being made for the main- 
 tenance of a thing in esse at the time of the lease made {h). 
 
 An assignee, however, is liable only in respect of his possession, 
 and not for a breach before assignment (i). 
 
 So, if a tenant who is chargeable with the rent assign over his inte- 
 rest in the land, the assignee is chargeable with the penalty for ar- 
 rears incurred in his own time {k). 
 
 (a) Cro. Eliz. 21%. (i) Esp. N. P. 467. Doug. 766. {c) Ibid. 
 
 Id) Carth. 135. {e) 2 Str. 763. i T. R. 319. (/) a Str. 763. 6 T. R. 6z. 
 
 (^) I Saund. R, n. I. (,6) Bac. Abr. tit. Covenant. (E. 3.) (i) Doug. 184. Salk. 199. 
 
 (i) Cro. Eliz. 383.
 
 328 Of the Action of Covenant, [Chap. XII L 
 
 Also, if a man leases for years, and the lessee covenants for himself 
 and his assigns, to pay the rent so long as he and they shall have pos- 
 session of the thing let, and the lessee assigns, the term expires, and the 
 assignee continues the possession afterwards : an action of covenant 
 will lie against the assignee for rent behind after the expiration of the 
 term, for though he is not an assignee strictly according to the rules of 
 law, yet he shall be accounted such an assignee as is to perform the 
 covenants [a). 
 
 As to the question how far actual possession is necessary in order 
 to enable the lessor to maintain covenant against the assignee, it has 
 been decided that by the assignment the title and possessory right pass, 
 and the assignee becomes possessed in law : and it is immaterial whe- 
 ther it be an assignment of the usual kind, or by way of mortgage j 
 for the principle upon which the assignee is liable is in respect of his 
 having the legal estate. Therefore, a mortgagee though out of posses- 
 sion was held liable as assignee, notwithstanding ; and Lord Kenyan 
 declared that he would overrule the case of Eaton and Jacques [Dougl. 
 ASS') without the least reluctance [b). 
 
 But an assignee is only liable while in possession if he assign 
 over before a breach ; therefore though his assignee has not taken 
 possession, yet he, (the first assignee) is not liable to any action of 
 covenant (r). 
 
 Thus, where the defendant was the assignee of the original lessee, 
 and covenant being brought against him for rent reserved on the lease, 
 he pleaded, That before the rent became due he had assigned all his 
 interest in the premises to one Riggy who by virtue of such assign- 
 ment, entered and was possessed : the plaintiff replied^ that at the 
 time when the rent became due, the defendant remained and conti- 
 nued in possession absq, hoc. That Rigg had entered, ^c. and on de- 
 murrer it was held, that the assignment being admitted, the actual 
 possession was not sufficient to charge the first assignee, the possession 
 in law being in the second assignee by virtue of the assignment (d). 
 
 So also, the assignee of a term declared against as such, is not liable 
 for rent accruing after he has assigned over, though it be stated that 
 the lessor was a party executing the assignment, and who agreed 
 thereby, that the term, which was determinable at his option, should 
 be absolute [e). 
 
 But an action of covenant cannot be maintained against an under- 
 lessee ; for it is clearly settled, and is agreeable to the text of Lyttletouy 
 that the action cannot be maintained, unless against an assignee of the 
 whole tcrm(/). 
 
 But the lessee being a party to the original contract, continues al- 
 
 (a) Bac. Alii. tit. CoTcnant. (E. 3.) {V) Stone v, Evans, ante 8z. 
 
 (0 I B. & 1', 21. ('/) i)oug. 4^>i- 11. 1- (0 ">'J- 764. 
 
 C/) Doui;. 187. 459. bioiic v. Eviiiis, j///'n/.
 
 Sect. III.] xvhere the Lease is by Deed. 329 
 
 ways liable, notwithstanding any assignment {a) ; for it is extremely 
 clear, that a person who enters into an express covenant in a lease 
 continues liable on his covenant notwithstanding the lease be assigned 
 over [b). 
 
 For the lessee has from his covenant both a privity of contract and 
 of estate ; and though he assigns, and thereby destroys the privity of 
 estate, yet the privity of contract continues : and he is liable in cove- 
 nant notwithstanding the assignment {c). But the assignee comes in 
 only in privity of estate, and is therefore liable only while in posses- 
 sion ; that is, whilst he has the legal estate, except in the case of rent, 
 for which, though he assign over, he is liable as to the arrears in- 
 curred before (it is said), as well as during his enjoyment j and such 
 assignee was made liable in equity, though the privity of estate was 
 destroyed at common law (J). 
 
 Covenant lies against the assignee of a lessee of an estate for a part 
 of the rent ; as in such case the action is brought on a real contract in 
 respect of the land, and not on a personal contract : and in case of 
 eviction, the rent may be apportioned, as in debt or replevin. — But it 
 is otherwise in covenant against the lessee himself, who is liable on 
 his personal contract [e). 
 
 The Declaration. — "With respect to the pleadings on the part of the 
 plaintiff, the declaration in an action of covenant should set out ex- 
 pressly that the covenant was made by deed. Per scriptum factum apud 
 W. concessit^ does not import a deed ; neither does an allegation that 
 the party covenanted per quoddam scriptum : and if the instrument is 
 set out upon error brought, and concludes with " in witness whereof, 
 I have hereunto set my hand and seal," it will not make good this 
 defect (/). 
 
 This action being founded on a deed, the plaintiff need not set forth 
 more than that part which is necessary to entitle him to recover : if 
 he states what is impertinent, it is an injury to the other party, and 
 may be struck out and costs allowed, upon motion. When it is said 
 that the plaintiff need only set forth that part of the deed on which 
 his action is founded, it is not meant that even that is necessary : for 
 he is not bound to set forth the material part in letters and words ; it 
 will be sufhcient to state the substance and legal effect ; that is shorter, 
 and not liable to misrecitals and literal mistakes : but what is alleged 
 should be proved {g). 
 
 The proper mode, therefore, of declaring in covenant, is to set out 
 that, by indenture, certain premises therein mentioned were demised, 
 without stating them particularly, subject among other things to a 
 proviso, setting out the substance of the covenant, and the breach (/j). 
 
 {a) Doug. 460. (<J) 4 T. R. 98. {c) Doug. 460. {J) Bac. Abr. tit. Covenant. (E. 4.) 
 
 (-?) a East's R. 575. (/) Z Str. 814. (g) i Str. 230. Doug. 667. 
 
 (b) Cowp. 665.
 
 330 Of cm Action of Covenmit, [Chap. XIII. 
 
 In an action for mismanagement of a farm, it is enough to state 
 that part of the instrument truly which applies to the breach com- 
 plained of, if that which is omitted do not qualify that which is 
 stated [a). 
 
 In declaring against an assignee, the plaintiff may declare against 
 him generally as assignee, without setting out the intermediate assign- 
 ments ; for he may not know them perhaps : and such is the case, 
 though the plaintiff himself is an assignee {b). 
 
 So, where the action is against the original lessee, the breach need 
 not extend to assigns; for the Court will not presume an assign- 
 ment (<:). 
 
 The distinction proceeds from the difference that susbsists between 
 the case where a thing is to be done by a person or his assigns, and 
 that in which it is to be done to a person or his assigns : in the first 
 place, the breach must be assigned in the disjunctive, that it was not 
 done " either by the one or the other," but in the last case, it will be 
 ini&xi^tA prhnd facie to be done to the person himself; but if he as- 
 sign his interest, then it may be done to the assignee, and if he did as- 
 sign over his interest, it ought to be shewn on the other side. 
 
 Where the action therefore is brought by the assignee of a term, the 
 plaintiff must set forth in his declaration all the mesne assignments of 
 the term down to himself ; for he is privy to them, and therefore shall 
 not be allowed to plead generally that the lessee's estate of and in the 
 demised premises came to him, or to some other person under whom 
 he claims, by assignment {d). 
 
 But where an action is brought against an assignee of a term, such 
 general form of pleading is sufficient, for the plaintiff is a stranger to 
 the defendant's title, and therefore cannot set it out particularly. It 
 is not sufficient, however, to say that the tenements came to the de- 
 fendant by assignment, but it must be shewn that he is assignee of 
 the term ; for otherwise it might be an assignment of another estate 
 than the term of the lessee : the usual form is " all the estate, right, 
 title, and interest of the said A. (the lessee) of, in, and to the said 
 demised premises, afterwards, to wit, on, ^c. in the year of our Lord, 
 t^fc. at, l^c. aforesaid, by assignment came to the said defendant (^)." 
 
 So, in an action of covenant by an assignee, the declaration need 
 not shew the deed of assignment ; provided the subject in dispute 
 may be assigned without deed ; although the covenant on which the 
 action is brought ought to be by deed (Z^). 
 
 But all declarations against assignees state entry and possession ; 
 and this has been the case both before and since Lord Cciv's dictum in 
 Coohe and Harris j which was extrajudicial [g). 
 
 (a) 13 Eait, 18. (A) 8 Mod. 72. (c) 5 Mod. 13.?. H Mod. 3 13. I Salk. 139. 
 
 I Str. aa8. t. c. Bull. N. T. 164. 5 Mod. 133. iz Mod. 86. s. t. Salk. 139. s. c. 
 (J) I Saund. R. i la. 11, 3. (f) Ibid. (/) Cro. liliz. ;iji. 436. (g) Doug. 4j8.
 
 Sect. III.] where the Lease is by Deed. ^?,\ 
 
 On an assignment of land by husband and wife, where they are 
 seised to them and the heirs of the husband, it is sufficient to de- 
 clare as assignee of the husband [a). 
 
 The assignee of a lease which appears to be good only by estoppel, 
 cannot maintain an action on the covenants (b). 
 
 Tenants in common ought to join in the action of covenant for 
 rent {c). 
 
 Where there Is a joint-covenant by several, all should join in the 
 action, or on craving oyer and demurring generally, it will be bad [d). 
 
 But if any named in the indenture have not sealed it, they should 
 be excluded by an averment to that effect. But advantage must be 
 taken by pleading in abatement, if the action be brought against part 
 only of the covenantors [e). 
 
 Where the plaintiiF cannot sue on a breach of covenant, without 
 some previous circumstances being by him performed, the declara- 
 tion should aver the performance of them {f). 
 
 Covenant for the non-payment of rent must be brought where the 
 lands lie, though the rent be made payable in another place : as 
 where the lands lay in Ireland^ and the rent was reserved to be paid 
 in London^ it was adjudged, that the action should be brought in 
 Ireland [g). 
 
 The distinction respecting the venue in this action, is this : in co- 
 venant by the grantee of the reversion against the assignee of the 
 lessee the action is local, and the venue must be laid in the county 
 where the estate lies. — But in covenant by the lessor or grantee of the 
 reversion against the lessee, the action is transitory, and the venue 
 may be laid in any county at the option of the plaintiffs [h). 
 
 In covenant upon a lease a view being proper to be had, the venue 
 was changed to the county where the premises lay though most of the 
 plaintifPs witnesses resided in the county where the venue was laid (;). 
 
 Where the covenant was " to pay or cause to be paid," the breach 
 was sufficiently assigned by stating that the defendant had not paid, 
 without saying " or caused to be paid," for had the defendant caused 
 to be paid, he had paid, for quifacitper alium facit per se {k) ; and in 
 such case it might be pleaded in discharge (/). 
 
 Breach that 3/. for a year at Lady-day last was arrear and unpaid, is 
 well on a general demurrer wherein it was objected that i^ did not 
 appear where the money became due (w). 
 
 The Pleas. — Touching the pleas to this action, in covenant there is, 
 properly speaking, no general issue ; for though the defendant may 
 plead tion est factum^ as in debt in specialty, yet that only puts the 
 
 {a) Cro. Car. 285. (^) Cro. Eliz. 373. 437- (0 Bull. N. P. 158. 
 
 (J) Ibid. Esp. N. P. 304. & 2 Str. 1146. {e) Ibid. (/) Esp. N.P. 304. Hob. 217. 
 
 (/) ^ East's R. 575. I Salk. 80. (-&) Ibid. (i) 8 East, 268. (/•) i Str. az8. 
 
 (0 Ibid. 231. (w) Salk. ly).
 
 332 Of the Action of Co'venant, [Chap. XIII, 
 
 deed in Issue and not the breach of covenant ; and non infregit conven- 
 tionemf to a negative covenant, has been holden to be a bad plea. In 
 this action therefore, the defendant must specially controvert the deed, 
 or shew that he has performed the covenant or is legally excused from 
 the performance of it; or, admitting the breach, that he is discharged 
 by matter ex post facto as a release, is'c. (a). 
 
 The pleas therefore to this action for breach of covenant for pay- 
 ment of rent, are i. Performance. 2. Other covenants in bar. 3. 
 'Not! est factum^ 4. Entry and eviction, 5. A release. 6. Accord 
 and satisfaction. 7. Tender and refusal. 8, Riens en arrere, or 
 payment at the day. 9. Infancy. 
 
 A defendant cannot plead performance generally to negative and 
 affirmative covenants [b). 
 
 Another covenant may be pleaded In bar, when they are both In 
 the same deed ; for the meaning of the parties Is to be collected from 
 the whole of the deed. Thus, in covenant for rent, the defendant 
 was permitted to plead another covenant In the same Indenture, that 
 he, as lessee, might retain as much of the rent for repairs and 
 charges (f). 
 
 But generally, reciprocal covenants cannot be pleaded one In bar 
 of another, especially if they do not go to the whole considera- 
 tion (J) ; for the damages might be unequal : and in assigning a 
 breach of covenant it is not necessary to aver performance on the 
 plaintiff's side unless there be a condition precedent [e). 
 
 Therefore, If J. covenant with B. to pay so much money for 
 tithes, and to be accountable for all arrears of rent, and B. cove- 
 nant to allow him certain disbursements upon the account, ^. can- 
 not plead in an action of covenant, that he was ready to account if 
 B. would allow him the disbursements ; for the covenants being 
 mutual, each of them has a remedy against the other for non-per- 
 formance (f). 
 
 So, unliquidated damages, arising from the breach of other co- 
 venants to be performed by the plaintiff, cannot be pleaded by way 
 of set-off (^). 
 
 A set-off Is allowable, however, by the statutes of set-off. In an 
 action of covenant for non-payment of money, as for rent ; but the 
 demand intended to be set-off, must be such as might have been the 
 subject of an action either of debt, covenant, or assumpsit (/j). 
 
 In covenant upon an Indenture for non-payment of rent, the de- 
 fendant pleaded tion est factum^ and gave a notice of set-off; Mr. J. 
 Dmtofi at the assizes was of opinion, that he could not do so upon 
 this issue •, but upon a motion for a new trial the Court held, that 
 
 (a) 'ridil's I'r.nct. 593. (L) Cro. Eliz. 691. {c) 1 Lev. 152. 
 
 {(f) 2 Mod. 309. I H. Bl. 279. {<■) 6 "I". R. 571. (/) 2 Moil. 73. 
 
 (l) Cowp. j6. 6'r. R. .|88. (/>) luki'b I'ract. 603.
 
 Sect. III.] Xi'hcre the Lease is hy Deed. 333 
 
 the evidence ought to have been received, for the general issue men- 
 tioned in the Act must be understood to be any general issue, and 
 accordingly ordered a new trial (a). 
 
 Oa the plea of non est factum^ the issue is that there is no such 
 deed 9s that stated in the declaration. The lessor's title, therefore, 
 cannot on such plea be controverted (b). 
 
 The defendant may, under this plea, shew that some of the cove- 
 nants in the deed have been altered or erased, or he may plead it ; 
 for if any covenant be altered or erased, the whole deed is dis- 
 charged : for the deed is a complication of all the covenants, so that 
 by changing any, it remains no longer the same deed [c). 
 
 A deed may be pleaded as lost by time and accident, without pro- 
 fert thereof being made. But if profert of the deed be made, the 
 Court cannot dispense with oyer {d}. So if it appear by the record 
 that the defendant had oyer of a copy only, it is error : but the Court 
 will in certain cases dispense with oyer, as where an original lease is 
 lost, and an application is made that a copy of the counterpart may 
 be good oyer ; and if it be once ordered that a copy be deemed a 
 compliance with the rule demanding oyer, no error can appear on 
 the record, because it does not there appear whether the oyer was 
 given from an original deed or a copy. Much less is it necessary to 
 make a prufert of a deed which is pleaded only by way of inducement 
 to the action [e). 
 
 As to the plea of ml hahn'it in temmejit'is ; the general rule is, that 
 a tenant cannot be permitted to controvert the title of his land- 
 lord {/)'. and it is founded on good sense: for so long as the lessee 
 continues to enjoy the land demised, it would be unjust that he 
 should be permitted to deny the title under which he holds posses- 
 sion. But when he is evicted, he has a right to shew that he does 
 not enjoy that which was the consideration for his covenant to pay 
 the rent, notwithstanding he has bound himself by the covenant [g). 
 If, therefore, the defendant hath been evicted, to be sure he cannot 
 be compelled to pay rent, and he may plead that fact in answer to 
 the plaintiff's demand. However, that generally speaking, an inden- 
 ture operates by way of estoppel against the tenant, and precludes 
 him from controverting the title of his landlord, is proved by Lit. s, 
 58. Co. Lit. 47. b. and by a variety of other cases (/^). 
 
 Entry and eviction therefore is a good plea to an action of cove- 
 nant, for rent is suspended by entry into any part. The eviction must 
 be tortious, and such as ousts the defendant of his possession ; for a 
 mere trespass will not suffice. — Entry and eviction must in covenant 
 be pleaded ; for it cannot, as in debt for rent, be given in evidence : 
 
 (a) Bull. N.P. 180. {b) 2 Bl.Rep. 1153. Esp. N. P. 306. (<:) Ibid. Co. 28. 
 
 (</) 3 T. R. iji. (.) 8 T. R. 573- (/) 7 T. R. 539- (s) 3 T. R. 442. 
 
 (/O 7 T. R. 55^.
 
 334 Of the Action of Covenant, [Chap. XIII. 
 
 and to a plea of eviction the plaintiff may reply an entry by virtue of 
 a power, and traverse the eviction [a). 
 
 Therefore, where in covenant for non-payment of rent the plaintiff 
 declared that he was seised of tithes, and by indenture demised them 
 to the defendant rendering rent, and that the defendant covenanted 
 to pay it, and assigned the breach in non-payment of so much, the 
 defendant pleaded eviction ; the plaintiff demurred, and judgment 
 was given for the defendant ; because it is a rent, and the eviction is 
 a suspension of it, and therefore a good plea [b). 
 
 A release of all covenants is a good discharge of the covenant be- 
 fore it is broken ; but a release of all actions, suits, and quarrels, 
 would not be so ; for at the time of the release no debt, duty, or 
 cause of action existed (c). 
 
 Whereever a discharge is pleaded in the nature of a release, the 
 defendant must plead it be by deed, or it will be bad ; for as the co- 
 venant is by deed, by deed only shall it be discharged (d). 
 
 It has been said, that where a covenant runs with the land, and 
 the lease has been assigned, if the covenantee had released before a 
 breach or action brought, it had barred the assignee even for a 
 breach in his own time [e). [But this cannot, it is conceived, apply 
 to a covenant for payment of rent ; for as an assignee shall be bound 
 by covenants that run with the land, so he shall take advantage of 
 them; and were it otherwise, in the case of rent the covenantee 
 might in fact defraud his assignee by defeating the estate that he as- 
 signed to him] (f). 
 
 Accord and satisfaction is a good plea where there has been an 
 actual breach; for not till then are damages claimable: and this plea 
 goes in discharge of damages, not of the covenant itself, for that 
 remains (g). 
 
 Therefore, where the plaintiff declared that in consideration that 
 he would permit S. P. to enjoy a farm at C. for one year, the de- 
 fendant covenanted to pay the rent of 72/. per ann. and also 200/. 
 then in arrear, and the breach assigned was the non-payment of the 
 rent ; the defendant pleaded that " before any cause of action did 
 arise on the covenant, that it had been agreed between him and the 
 plaintiff, that the plaintiff should take 30/. in discharge of all cove- 
 nants, which the plaintiff had accepted ;" on demurrer this plea was 
 held to be a bad one, for at the time there was no covenant broken or 
 damages sustained [h). 
 
 Tender and refusal is also a plea to this action. The damages, 
 not the debt, being for the most part the thing in demand by this 
 
 (a) 1 Saund. R. 204. n. a. {b) 2 Ibid. 304. n. 7. i Ld. Raym. 77. (c) Esp. N. P. 207. 
 (d) Ibid. (,) Ibid. 308. Cro. Car. 503. (/) Bull. N. P. 139. 
 
 (g) Eip. N. P. 308. (L) Ibid.
 
 Sect. III.] where the Lease is hy Deed, 335 
 
 action, tender and refusal need not In general be pleaded with an 
 uricore prist (a). 
 
 But where it is brought for rent, it being a debt ascertainable and 
 certain, it is best to plead this plea with an uncore prist. 
 
 Riens in arrere^ or payment at the day, is a good plea to covenant 
 for non-payment of rent. But " levied by distress," cannot be 
 pleaded; for that Is a confession that it was not paid at the day, to 
 which time the breach refers ib). 
 
 Infancy is another plea in this action, which may or may not be 
 good, according to circumstances. 
 
 If the defendant has leave to plead double under the Stat. 4 £53* 5 
 Ann. c. 16. he shall not be allowed to plead inconsistent pleas, as 
 non est factum.^ and a condition precedent (c). 
 
 But non-tenure, riens en arrere^ and infancy may be pleaded 
 together {d). 
 
 Bankruptcy Is no plea to a covenant to pay rent (f), for besides 
 that the rent was not a debt due at the time of the bankruptcy, and 
 so could not be proved under it, it Is a settled principle, that the 
 tenant's liability on his covenant to pay rent, subsists during the con- 
 tinuance of the lease, notwithstanding he may become a bankrupt 
 and be deprived of all his property : but of the assignee of the tenant, 
 otherwise (y). 
 
 Where the plaintiff declared in covenant for seven quarters rent, 
 a plea shewing a surrender before the last four of the seven quarters 
 rent accrued, Is bad on demurrer, because It does not go to the 
 whole breach \ and the breach is not entire, but part of It may be 
 proved [g\ 
 
 In an action of covenant for rent, or for 5/. an acre for ploughing 
 meadow, the count being for a liquidated sum, money may be paid 
 Into Court {h). 
 
 Where an action of covenant was brought upon a lease for non- 
 payment of rent, and not repairing, l^c. the Court made a rule, that 
 upon payment of what should appear to be due for rent, the proceed- 
 ings as to that should be stayed, and as to the other breaches, that 
 the plaintiff might proceed as he should think fit (?"). 
 
 So the Court have referred it to the master to compute what is due 
 in covenant for non-payment of rent {k). 
 
 Respecting the verdict and judgment in this action ; In covenant 
 for non-payment of rent at divers days which amounts to so much. 
 If in the declaration the sum is miscast, it Is not error, but the plain- 
 tiff shall have a verdict for so much as is really in arrear (/). 
 
 (rt) Esp. N. p. 308. {h) Ibid. 309. (0 Ibid. Gilb. R. laj. 
 
 (rf) 5 Taunt. 340. (0 4 Bur. 2444- i H. Bl. 433. (/) 7T.R.6l6. 8T.R.61. 
 
 \g) 5 Taunt. %T. {h) Esp. N. P. 310. (/) i Tidd's Pract. 565. 
 
 \k) I Wils. 75. 8 T. R. 410. 6 Taunt. 356. (/) 5 Mod. 313. 
 7
 
 SSG Action of Debt, [Chap. XIIL 
 
 Judgment cannot be given on two covenants where one is bad y 
 therefore where a general verdict was given, and entire damages were, 
 assessed, judgment was arrested [a). 
 
 So if covenant be brought against two and there be judgment by 
 default against one, and the other pleads performance, whic^j^^-j^ 
 found for him, the plaintiff shall not have judgment againsf: ^jth^, ; 
 other, for on the whole the plaintiff has no cause of action ib). . ,? . 
 
 In covenant for rent upon a lease by A. to B. the point in issue was 
 whether C. (whose title both admitted) demised first to A. or to au-- 
 other person ; C. is a competent witness to prove the point in issue, 
 for the verdict cannot be given in evidence in any action which may 
 afterwards be brought either by or against him {c). . ^- ^ , 
 
 A bill in equity may be brought for rent, where the remedy at la\yt , 
 is lost or become very difficult, and the Court will relieve in such. case 
 on the foundation of length of time (d). .^^ iaou 
 
 Section IV. Action of Debt, for Use and Occiipatimk 
 
 An action of debt will also lie, or of assumpsit for use and occyjJd- 
 tion, where rent is in arrear by a tenant who holds under a leasejigfe,.; 
 by deed : as under a writing without deed or a parol demise. "T 
 
 Of Debt. — First with respect to the action of debt. 
 
 This action, we have before observed, is founded upon a contract, 
 either express or implied, in which the certainty of the sum or duty 
 appears, and the plaintiff is to recover the sum in numero and not ia 
 damages [e). 
 
 Where there was a tenant at will, with a rent reserved, the lessor 
 might always have an action of debt for arrears of rent(y). r 
 
 But in declaring on a lease at will for rent arrear, the plaintiff muRt:_ 
 shew an occupation; for the rent being only due in respect thereof, . 
 it should appear to the Court when the lessee entered and how he 
 occupied (^). i,.. 
 
 An action of debt for use and occupation is not a local action (^)»u.{ 
 
 Against tenanfcs at sufferance, it seems that an action of 4cht,lj*j[,,T 
 not for rent arrear, for the contract was determined, and they arft.iii,.,; 
 by wrong : but in such cases there is now a special provisioi),.j^ ,i .;> 
 
 Where a tenant holds over, for double value. — For by stat. ,i4,(?^,i2o<(i!'-^ 
 28. s. \. it is enacted. That if any tenant or tenants for life, or liv^s, 
 or years, or persons coming in under or by collusion with them, hQld,,> 
 over any lands, tenements, ^c. after the determination of their e6(;at§f,;£i[ 
 after demand made and notice in v/riting given for deliveritig the pps>- 
 
 (a) Cro. Eliz. 685. {b) I Lev. 63. (c) 3 T. R. 308. (,/) 1 Atk. 598. . 
 
 (r) Bull. N. J'. 167. (/) Ksp. N. 1'. 188. (jr) I Salk. 109. Vw?.. 457. ' 
 
 (/.) 5 T.uiiit. 35.
 
 Sect. IV.] for Use and Occupation. 337 
 
 session thereof by the landlord, or the person having the reversion or 
 remainder therein, or his agent thereunto lawfully authorized, such 
 tenant or tenants so holding over, shall pay to the person so kept out 
 of possession at the rate of double the yearly value of the lands, tene- 
 ments, ^c. so detained, for so long a time as the same are detained ; 
 to be recovered by action of debt, v^'hereunto the defendant or defend- 
 ants shall be obliged to give special bail. 
 
 Debt for double value on the above statute does not lie against a 
 weekly tenant (a). 
 
 For double rent.— r-Ahoy by stat. ii G. 2. c. 19. s. 18. it is enacted. 
 That in case any tenant or tenants shall give notice of his, her, or their 
 intention to quit the premises, and shall not accordingly deliver up 
 the possession thereof, at the time in such notice contained, the said 
 tenant or tenants, his, her, or their executors or administrators, shall 
 from thenceforth pay to the landlord double the rent or sum vi'hich he, 
 she, or they should otherwise have paid. 
 
 Upon these statutes it has been held, that 
 
 With respect to the 4 G. 2. it is a remedial law ; the penalty being 
 given to the party aggrieved (h). 
 
 The action under this statute stands in place of an ejectment (f) ; 
 but is more beneficial and effectual [d). 
 
 The notice to quit may be before the expiration of the lease, or time 
 of demise, or after [e). 
 
 The notice in writing is of itself a sufficient demand, within the 
 words of the statute " after demand made and notice in writing 
 given (/)." 
 
 In debt for double value under the stat. 4 G. 2. the plaintiff after 
 stating a demise to the defendant's wife and her subsequent inter- 
 marriage with the defendant, alleged in the first count a notice to quit 
 and demand of possession delivered to the defendant and his wife, and 
 in the second count alleged a notice to quit and demand of possession 
 delivered to the wife, previous to her intermarriage with the defend- 
 ant ; held that to support the second count the husband need not be 
 joined in conformity ; and that to sustain the action, it was not 
 necessary to aver to have given notice to the husband subsequent to 
 the intermarriage ( g), 
 
 A receiver appointed under an order of the Court of Chancery is 
 ** an agent lawfully authorized" within the words of the statute [h). 
 
 One tenant in common may maintain this action for double value of 
 his moiety; for where the injury is separate, tenants in common may 
 have several actions (i). 
 
 The administrator of an executor cannot sue for double the value 
 
 (tf) a Campb. 453. (i) 5 Burr. 4698. (c) 3 Enst, 3581. (J) 2 Bl. R. 1077. 
 
 {e) % Bl. R. 1076. (/) 5 Burr. 2694. {g) i Bos. & Pull. N. R. 174. (/) Ibid. 
 
 (/■) 2 Bl. R. 1077. 
 
 z
 
 22S Action of Debt, [Chap. XIIL 
 
 of lands held over after notice to quit under a demise from the testa- 
 tor, according to 4 G. 2. c. 28. without taking out administration de 
 bonis ftofij even though the tenant has attorned to her : for most 
 certainly, in any case in which the plaintiff means to make title, she 
 must take out administration de bonis non («). 
 
 With respect to the stat. 1 1 G. 2. a parol demise from year to year 
 is a sufBcient holding within the statute so as to subject the tenant to 
 the penalty of double rent, if he hold over after he has given notice to 
 quit (b). 
 
 The notice by the tenant to quit, need not be in writing : a parol 
 notice to quit is sufficient (c). 
 
 The acceptance of (single) rent accrued since the notice, is, it seems, 
 a waiver of the landlord's right to double rent, but does not neces- 
 sarily imply that the tenancy should continue (d). 
 
 By Stat. II G. 2. «. 19. s. 12. it is enacted. That every tenant to 
 whom any declaration in ejectment shall be delivered for any lands, 
 l^c. shall forthwith give notice to his or her landlord, or his bailiff or 
 receiver, under the penalty of forfeiting the value of three years im- 
 proved or rack-rent of the premises to the person of whom he or she 
 holds ; to be recovered by action of debt. 
 
 Debt will lie for use and occupation generally, without setting forth 
 the particulars of the demise, or where the premises lie(^). 
 
 Therefore, in a case, where to a count for use and occupation 
 generally, the defendant demurred and assigned for causes that it did 
 not set forth any demise of the premises, nor for what term they were 
 demised nor what rent was payable, nor for what length of time the 
 defendant held and occupied the premises, nor when the sum of 5/. 
 thereby supposed to be due became due, nor for what space of time ; 
 after argument, the Court of Common Pleas gave judgment for the 
 plaintiff on that count (y). 
 
 But if the particulars of a demise be alleged, they must be proved. 
 
 Therefore in an action for double rent on the stat. 1 1 G. 2. c. 19. 
 J-. 18. where the declaration stated a lease for three years, but on the 
 evidence it appeared, that the lease for three years was void under the 
 statute of Frauds, and that the defendant was only tenant from year 
 to year : though this was sufficient for the action, yet a lease for three 
 years having been laid, and not proved, the plaintiff was nonsuited (g). 
 
 After a landlord has recovered in ejectment against his tenant, he 
 may maintain debt upon the stat. 4 G. 2. for double the yearly value of 
 the premises during the term the tenant held over after the expiration 
 of the landlord's notice to quit (-6). 
 
 A landlord declared in debt, first, for the double value, secondly, 
 
 (a) I B()3. & Pill. 310. {/>) 3 Burr. 1607. I Bl. R. 53;^. s. c. (0 Ibid. 
 
 (./) Cciwi^ 246. (0 (t T. R. 62. 6 liiist, 647- (/) 'hid. 
 
 (x) Doug. 668. (i) 9 East, 310. 
 
 1
 
 Sect. IV.] for Use and Occiipatmi. 339 
 
 for use and occupation -, the tenant pleaded nil debet to the first, and a 
 tender of the single rent before action brought to the second count, 
 and paid the money into Court, which the plaintiff took out before 
 trial, and still proceeded : held that this was no cause of nonsuit 
 upon the ground of such acceptance of the single rent being a waiver 
 of the plaintiff's right to proceed for the double value ; but that the 
 case ought to have gone to the jury, and that the plaintiff's going on 
 with the action after taking the single rent out of Court, was evidence 
 to shew that he did not mean to waive his claim for the whole value, 
 but to take it pro tanto : it seems that though the single rent were 
 paid into Court on the second count, yet that if the plaintiff had not 
 accepted it, but had recovered on the first count, the defendant would 
 not have been entitled to have the money so paid in, deducted out of 
 the larger sum recovered (a). 
 
 Debt against an executor shall be in the detinet only ; for he is 
 chargeable no farther than he has assets {b). 
 
 An administrator may be declared against as assignee in debt for 
 rent, for the time that he enjoyed the land and was in possession ; 
 and the declaration may be in the debet and detinet {c). 
 
 An executor must bring debt in the detinet only, though this would 
 be aided after verdict by the statute of Jeofails [d). 
 
 The Pleas. — In debt for rent on a demise in writing without deed or 
 by parol, the proper plea is non demisit {e). 
 
 Entry and eviction is a good plea to this action; so as it be such a 
 tortious entry and expulsion as to prevent an enjoyment of the pre- 
 mises. For if there was no beneficial occupation, there can be no 
 ground for the action. 
 
 The statute of Limitations, 21 J. i. c. \6. which enacts, That all 
 actions for rent arrear, or grounded on any lending or contract with- 
 out specialty, must be brought within six years, is another good plea : 
 and such plea must conclude with a verification, as when pleaded to 
 an action oi assumpsit [f). 
 
 As to the plea of infancy, see ante C. IV. 
 
 So a plea of set-off is allowed : and also a tender and refusal. So a 
 release. 
 
 Where to debt for rent on a demise of three rooms, the plea was, 
 that the plaintiff demised the said three rooms and another room, and 
 that he entered into the other room, but did not traverse the demise 
 of the three rooms only, it was held to be bad for want of such a 
 traverse [g). 
 
 It is now settled that in an action of debt on a simple contract, as 
 
 {a) 10 East, 48. {b) Bull. N. P. 169. {c) Esp. N. P. ai;. Bull. N. P. 169. 
 
 (</) Ibid. Bull. N. P. 170. Hard. 33a. (/) i Saund. 2,83. n. 2. 
 
 (^) I Saund. ao6. 
 Z 2
 
 340 Of Assumpsit for Use and Occupation, [Chap. XIII. 
 
 this is, the plaintiff may prove and recover a less sum than he de- 
 manded by his writ (a). ^ 
 
 'J 3B ion bnfi 
 
 h^bt^S ,K 
 
 Section V. Of J ssumpsit for Use and Occupation, , 
 
 Another remedy for the recovery of rent, where the demise is .not 
 by deed, lies by action of assumpsit for use and occupation. 
 
 In an action for use and occupation, the property tax will not be 
 deducted at nisi prius from the rent due, if not paid before the trial ; 
 but where it was paid before action brought the deduction was 
 allowed (b). liajjeie 
 
 At common law it was holden, that assumpsit would lie for rent on 
 an express promise, but not on an implied promise, and that such ex- 
 press promise must have been made at the same time with the lease {c). 
 But now. 
 
 The Stat. 11 G. 2. c. 19. s. 14. in order to obviate some difficulties 
 that many times occur in the recovery of rent, where the demises 
 are not by deed, enacts, That it shall be lawful for the landlord, 
 where the agreement is not by deed, to recover a reasonable satisfac- 
 tion for the lands, tenements, or hereditaments, held or occupied by 
 the defendant, in an action on the case, for the use and occupation 
 of what was so held or enjoyed ; and if in evidence on the trial of 
 such action any parol demise or any agreement (not being by deed,) 
 whereon a certain rent was reserved, shall appear, the plaintiff in 
 such action shall not therefore be nonsuited, but may make use there- 
 of as an evidence of the quantum of the damages to be recovered. - 
 
 The action for use and occupation is founded on a contract ; and 
 unless there were a contract express or implied, the action cannot be 
 maintained {d). '^ imnmibi^ ad ^gni 
 
 If there be an agreement by deed to demise, but thd words dbnot 
 amount to an actual demise, an action for use and occupation is 
 maintainable (e). ^siari^g s ii ii jbaijq 
 
 But a written agreement, though coming out of the possessioA of 
 the opposite party, cannot be given in evidence in any action unless 
 it be legally stamped. » tiuuaB euU joij 
 
 Therefore where counsel were about to ask a party as to his occu- 
 pation and payment of rent to the defendant in an ejectment, he was 
 stopped by Lord Kenyotiy who observed, that the occupation had been 
 under an agreement in writing, and the rCiit had been paid in pursu- 
 ance of it ; if, said his Lordship, the agreement cannot be given in 
 evidence, you cannot enquire as to the occupation j the party might 
 
 (a) I II. Bl. R. 249. {b) % Camp. i8i. 3 lb. 474. (c) a I.cv. 150. Bull. N. P. 138. 
 
 (-/) iT. R.387. (<•) 4 Esp. R. 59.
 
 Sect, v.] Of Assumpsit for Use and Occupation, 341 
 
 have been In possession by licence and permission of the defendant 
 and not as tenant {a). 
 
 A. agreed in writing to pay the rent of certain tolls, which he had 
 hired, " to the treasurer of the commissioners :" held that no action 
 for the rent could be maintained in the name of the treasurer ; for 
 the contract is to pay the commissioners through the medium of their 
 officer (3). 
 
 Where there is a note in writing expressing the quantum of rent or 
 the duration of the term, evidence of a parol agreement to annul or 
 substantially to vary the written contract, is inadmissible; else the 
 statute of Frauds would be eluded, and the same uncertainty intro- 
 duced by suppletory or explanatory evidence, which that statute has 
 suppressed in respect to the principal object (c). 
 
 Thus, where there was a written agreement that a lease should be 
 let of a house at 26/. per anji. on which an action was brought for 
 use and occupation •, the defendant paid 26/. into Court. At the 
 trial, the plaintiff offered to give parol evidence, that beside the 26/. 
 per ami. the defendant was to pay the ground landlord 2/. i2s. 6d. but 
 this evidence was rejected j particularly as no evidence was offered of 
 the actual payment of such rent (J). 
 
 Parol evidence, indeed, of a verbal agreement cannot be received 
 ? where it appears that it was reduced to writing : and this even where 
 the written agreement, for want of being stamped, or for other in- 
 formality or defect, was inadmissible (^e) : for parol evidence cannot 
 be admitted to vary the substance of a written agreement (/). With 
 respect to collateral matters, however, it is otherwise ; for a person 
 may shew by parol proof who is to put a house in repair, or the like, 
 concerning which nothing is said in the written agreement. So, it 
 may be admitted to explain a deed or other instrument ; or to prove 
 other considerations than those expressed in a deed (g). 
 
 This action being founded on a contract either expressed or im- 
 plied, it is a general rule, that wherever the defendant uses or enjoys 
 the premises by permission of the plaintiff [as his tenant,] he shall 
 be liable in this action (/6). 
 
 So, this action may be maintained by a grantee of aa annuity, 
 
 after a recovery in ejectment against a tenant who was in possession 
 
 £^ under a demise from year to year, for all rent in his hands at the 
 
 time of the notice by the grantee, and down to the day of the demise : 
 
 but not afterwards (?'), 
 
 j>" So after a recovery of possession of the premises, the plaintifT is 
 
 id^iu\ limq^ 3X11 ^ uoaiiqny^'j 
 
 (a) a Esp. R. 724. {h) 3 Bos. St. Pul. R. 147. 
 
 8£i *I .W M: ilc) z Bl. R. lajo. 3 Wils. 276. {J) z Bl. R. 1249. 
 
 {e) 3 T. R. 528. 6 T. R. 464- (/) a Bl. R. 1250. 
 
 (g) zStr. 794. in noih. 8 T. R. 379. (i) 8 T. R. 327. 
 (0 I T. R. 378.
 
 342 Of Assu7npsit for Use and Occupation. [Chap. XIII. 
 
 entitled to the profits for use and occupation, to the time of the de- 
 mise, but not after, if he thinks fit to sue for them {a). 
 
 So also if a landlord in the middle of a quarter accepts from his 
 tenant the key of the house demised, under a parol agreement that 
 upon her then giving up the possession, the rent shall cease, and he 
 never aftervi^ards occupies the premises, he cannot recover in an 
 action for the use and occupation of the house, for the time subse- 
 quent to his accepting the key [b). 
 
 An action for use and occupation and an ejectment, when applied 
 at the same timei are totally inconsistent : for in one, the plaintiff says 
 that the defendant is his tenant, and therefore he must pay him rent; 
 in the other, he says that he is no longer his tenant, and therefore 
 must deliver up the possession. He cannot do both {c). 
 
 This action therefore being founded on a contract express or im- 
 plied, will not lie where the possession of the tenant is adverse and 
 tortious; unless indeed the plaintiff ceases to consider it as such, by 
 waiving the tort, and recurring to his remedy by this action on tl^^, 
 contract [c). ■. Kfr^ 
 
 The defendant in this action, as in all actions for rent, is not ad- 
 mitted to call in question the plaintiff's title to the premises; or in 
 any way to impeach it. 
 
 Therefore, in an action for use and occupation by an incumbent 
 against a tenant of the glebe lands, the defendant cannot give evi- 
 dence of a simoniacal presentation of the plaintiff, in order to avoid 
 his title {d). 
 
 So where premises had been let to B. for a term determinable by 
 a notice to quit, and pending such term C. applied to A. the landlord for 
 leave to become the tenant instead of 5?, and upon yf.'s consenting 
 agreed to stand in -S.'s place and offered to pay i^ent ; it was held that (al- 
 though B,\ term had not been determined either by a notice to quit or 
 surrender in writing) J. might maintain an action for use and occupa- 
 tion against C, and that the latter could not set up B!s title in de- 
 fence to that action (e). 
 
 So, in an action for use and occupation, the plaintiff having given 
 evidence of payment of rent by the defendant for nineteen years, 
 the defendant would have gone into evidence to prove a title in an- 
 other. Per Wilmot J. — Payment of rent and holding under a per- 
 son for so long a time, is conclusive evidence against the defendant, 
 and he cannot set up a title in another: and as to the objection that 
 lias been made, that the defendant may be liable to two actions for 
 the rent, by persons having different titles, that cannot be the case ; 
 for though another has title, yet he cannot bring an action for the 
 
 (n) L'owj.. 246. I l'. R. 387. {b) 5 'I'aiint. 518. (<;) Cowp. 246. i T. R. 387. 
 {d) 5T. K. 1. (0 1 B. & A. jc.
 
 Sect, v.] Of Asmmpsit Jhr Use and Occupation. 343 
 
 rent till he has made an entry, and recovered in ejectment ; | whcH 
 entry need not now be actually made in such case, but is supposed, 
 3 Bur. 1895. Run. Eject. 199.] and then it must be trespass for the 
 mesne profits [a). 
 
 But it was agreed, that though a defendant cannot controvert the 
 title of the plaintiff, yet he may give evidence to explain the holding 
 under him, as that he was executor during the minority of A. B. and 
 that his interest was then determined ; for that admits the plaintiff's 
 title, during the time the defendant held under him [b). 
 
 An action for use and occupation is maintainable without attorn- 
 ment upon the stat. 4 £if 5 Ann. c. 16. s. 9, b* 10. by the trustees of 
 one, whose title the tenant had notice of before he paid over his rent 
 to his original landlord ; though the tenant had no notice of the legal 
 estate being in the plaintiffs on the record (c). 
 
 In an action for use and occupation, where the defendant has come 
 in under the plaintiff, he cannot shew that the plaintiff's title has ex- 
 pired, unless he solemnly renounced the plaintiff's title at the time, 
 and commenced a fresh holding under another person (d). 
 
 In an action for use and occupation, where the defendant did not 
 come in under the plaintiff, the plaintiff can only recover rent from 
 the time he has had the legal estate in him, although he may have 
 had the equitable estate long before (<?). 
 
 The rule that a tenant cannot compel his landlord to interplead, 
 does not prevail, where the claim of a third person arises by the act of 
 the landlord subsequent to the commencement of the relation of land- 
 lord and tenant [f ). 
 
 By the abovementioned statute (11 G. 2. <r. 19. s. 15.) it is enacted. 
 That where any tenant for life shall happen to die before or on the 
 day on which any rent was reserved or made payable upon any demise 
 or lease of any lands, ^c which determined on the death of such 
 tenant for life, that the executors or administrators of such tenant for 
 life shall and may, in an action on the case, recover of and from such 
 under-tenant, if such tenant for life die on the day on which the same 
 was payable, the whole, or if before such day then a proportion of 
 such rent ; according to the time such tenant for life lived, of the last 
 year, or quarter of a year, or other time in which the said rent was 
 growing due. 
 
 [Respecting the above statute, see ante C. VIII. S. I, tit. Retit, ap- 
 portionment of.'\ 
 
 An executor brought an action for rent due to his testator in his 
 lifetime, and for other rent due in his own time, and there was 
 another count on a quantum meruit for the rent of another messuage, 
 
 {a) Esp. N. p. 21. {b) Ibid. s. c. 
 
 {c) 16 East, 99. (i) a Campb. ii. 
 
 ie) X Campb. 13. note. (/) i j Ves. ^,1^.
 
 34-4 Of Assumpsit for Use and Occupation. [Chap. Xlli, 
 
 ill which he had not declared as executor. After judgment by default) 
 and a writ of enquiry executed, upon error brought, judgment was 
 reversed, because the demands were incompatible :— -but perhaps it 
 would have been helped by a verdict, because for rent due in his own 
 time, he need not declare as executor ; and therefore, if it had been 
 tried, the Judge ought not to have permitted him to prove rent due to 
 himself in his own right [a). 
 
 The rule as to joinder in actions Is, that only those causes of action 
 can be joined, that admit of the same plea, and the same judg- 
 raent(^).:,^ ^i>:>bs.,.c &d , -l ■%'3mQ \ub ' ■ 
 
 An action for use and occupation will not He, where the pre-» 
 mises are let for a purpose illegal, or contra bows mores ; as to ^ 
 prostitute {c). .■ ;^, ^^^um 
 
 An action for rent will not lie where the title Is in dispute : the 
 Court therefore will not try a title by the action for use and occupa- 
 tion ; an ejectment is the proper remedy. This was decided in a 
 case before the Court of King's Bench, by Lord Kenyan C. J. wherein 
 the action was brought against the tenant for rent, while the heir at 
 law and a devisee were contesting their right to the premises (^)nn loi 
 
 It is not necessary in an action for use and occupation, to statd in 
 what parish the premises are situated ; but if it be stated, a variance ; 
 in the name of the parish is fatal [e). . j^ nonscjLODO 3iiJ huu 
 
 The Picas. — In assumpsit under the statute for use and occupation of 
 a house by permission of the plaintiff, /«'/ hahuit In tenementis is a bad 
 plea V for the action is founded on the promise, and therefore if the, 
 plaintiff had an equitable title or no title at all, yet if the defendant 
 enjoyed by his permission, it is sufficient ; for it is no more necessary 
 for the plaintiff to say that it was his house, than in assumpsit for 
 goods it is necessary to say that they were his goods [f ). 
 
 But the plea would be good at common law ; for there an interest 
 is supposed to have passed from the lessor (y). v,v ^l fi 
 
 Yet qu. ? whether at this day such plea would be admitted, evecf ^ 
 in an action for rent at common law ; for if it would, the supposition of"-; 
 an interest having passed would be a fiction, not in furtherance of th§j 
 ends of justice, but in destruction of them j and the rule laid dowft-i 
 by Lord Kcnpn^ that "in an action for use and occupation it ought) 
 not to be permitted to a tenant, who occupies by the license of a no-;', 
 ther, to call upon that other to shew the title under which he let the 
 land or premises," is not a mere technical rule, but is founded on 
 public convenience and policy ; and as it was adopted by the Court, 
 in conformity to the recognition of it in cases prior to the one then 
 before them, as well as on the grounds of reason and equity, it may 
 
 {a) 2 Str. 1271. et it. 1. (L) 1% Mod. 180, I Ld. Raym. aji. WiUes, lao. 
 
 (<r) I Eip. K. 13. {d) MS.S. Hill. T.37. G. III. (0 3 Camp.ajJ. 
 
 if) I Wils.314. B & P. 139. lisp. N. P. i6j.
 
 Sect. V.3 Of Assimpsitfor Use and Occupation, 345 
 
 now be considered as a general rule, applicable to all cases of a simi- 
 lar kind. 
 
 The defendant may in this action, upon the plea of non assumpsit, 
 which is the general issue, give in evidence any thing which proves 
 nothing due, as the delivery of corn or any other thing in satisfac- 
 tion ; or a release ; so he may give in evidence, performance (o). In 
 short, the question in assumpsit upon the general issue is, whether 
 there was a subsisting debt (b) or cause of action, at the time of com- 
 mencing the suit : therefore, though a distinction has been taken that 
 payment or any other legal discharge must be pleaded ; yet that dis- 
 tinction is not law ; but in both cases, the defendant is allowed to 
 give in evidence any thing that will discharge the debt (c). 
 
 But matters of law, in avoidance of the contract, or in discharge of 
 the action, are usually pleaded ; and it is necessary to plead a tender, 
 set-o£F, or the statute of Limitations (d). 
 
 A plea to an action for use and occupation, that the plaintiff be- 
 fore action, took and detained, as a distress for the rent, goods of 
 value sufficient to satisfy the same, was held ill on special demurrer, 
 for not shewing that the rent was satisfied [e). 
 
 Assumpsit lies against a lessee from year to year, upon his agree- 
 ment to pay rent during his tenancy, notwithstanding his bankruptcy, 
 and the occupation of his assignees during part of the time for which 
 the rent accrued, which were pleaded in bar. Qtiare ? Whether a 
 special plea in bar stating no facts but what might have been proved 
 under the general issue, but leaving other facts unanswered, which 
 the general issue would have put in issue, be good (y*). 
 
 Where premises are let at an entire rent, an eviction from part, if 
 the tenant thereupon gives up possession of the residue, is a complete 
 defence to an action for use and occupation {g). 
 
 In an action for the use and occupation of a house for six months, 
 it is prima facie sufficient to shew an occupation of the house by the 
 defendant for the preceding six months, since the continuance of the 
 tenancy is to be presumed until the contrary appear, and it is not suf- 
 ficient for the defendant, in such case, to prove that the keys had been 
 previously delivered to a servant at the plaintiff's house, and a subse- 
 quent declaration on the part of the plaintiff, that the keys had been 
 lost or mislaid [h). 
 
 [a) Bull. N. P. 151. (i) I Tidd's Pract. 59a. (*) BuU. N. P. Ija. 
 
 (</)iTidd'sPract.593. (O1B.&A. 157. (/) 8 East, 311. (f) 3 Camp. 513. 
 
 (.5) I Stark. 455.
 
 [ S46 ] 
 
 CHAPTER XIV. 
 
 Of the Remedies for and against Landlord and Tenant ; 
 
 'wherein 
 
 Of the Actions of Ejectment and Trespass for Mesne 
 Profits for Recovery of Rent and Possession, 
 
 Section I. Of the Action of Ejectment at Common Law, 
 
 Section II. Of the Action for Mesne Profits. 
 
 Section HI. Of a second Action of Ejectment. 
 
 Section IV. Of the Action of Ejectment upon the Statute 
 4 G. 2. c. 28. 
 
 Section V. Of the Landlord's Remedy under the Statute 
 11 G. 2. c. 19. where the Premises are 
 vacant. 
 
 Section I. When an Ejectment lies, and the Proceedings 
 therein at Common Law, 
 
 OF the various remedies which the law affords for the breach of a 
 contract or the reparation of a wrong, none perhaps so inti- 
 mately concerns the respective relations of landlord and tenant, as 
 that admirable fiction of the courts of common law, called the action 
 of ejectment. 
 
 Besides the remedy given to a landlord, where the lease contains 
 a clause of re-entry on non-payment of rent, by the stat. 4 G. 2. c. 
 28. J-. 1. (of which hereafter) the action of ejectment lies at common 
 law to recover possession, on 
 
 The expiration of the lease by effluxion of time ; or 
 
 The determination of the lease by 
 
 Non-payment of rent, or 
 Non-performance of covenants. 
 
 Where the possession is vacant, or 
 
 Where the tenant is in possession. 
 
 In order however, to explain the action as applicable to these par- 
 ticular cases, we must go into a general account of the nature of the 
 remedy by ejectment. 
 
 History of the Action. — By the ancient common law, the only me- 
 thod of recovering the pobscsaion of land, was by real action by writ
 
 Sect. 1.] When Fjcctmeiit lie's, S^c. 347 
 
 of entry or assize, and this in no case where the estate was less than 
 freehold ; for a mere leasehold interest or term for years was in the 
 early period of our constitution, when feudal principles more strictly 
 prevailed, deemed of such little import, that no remedy was provided, 
 whereby the tenant could^ regain his possession in case he was 
 ousted by his landlord or by a stranger : against the former he could 
 proceed only upon his breach of covenant or agreement ; against the 
 latter indeed he might have his writ of ejectment, by which however 
 he could recover damages only, and not the possession (a). In those 
 times the ejectment was a mere personal action of trespass, and the 
 proceedings were by ponef or by capias and distress infinite (a). 
 
 In process of time, — some say so early as the reign of Ed. 4. (3 
 J3L Com. 201.) but certainly about the time of H. 7. when long leases 
 began to obtain, — the remedy by ejectment was extended and rendered 
 more efficacious by the object of the action being completely changed, 
 and the term itself recovered. This was effected by the Courts of 
 Law resolving to give judgment in ejectment that the lessee in eject- 
 ment should recover possession of the land itself by the process of a 
 writ called an habere Jacias possessionem («). 
 
 From this period, the practice in ejectment became wholly subject 
 to the controul of the Court, and a new method of trial, unknown to 
 the common law, was introduced (a). 
 
 . Ancient Practice. — It now became usual for a man that had a right 
 of entry into any lands, to enter thereon and seal leases, and then the 
 person that next came on the freehold animo possidendi was accounted 
 an ejector of the lessee •, by which means any man might be turned out 
 of possession, because the lessee in ejectment would recover his term 
 without any notice to the tenant in possession ; so that the Courts of 
 Law made it a standing rule, that no plaintiff should proceed in eject- 
 ment to recover his lands against such a feigned ejector, without 
 delivering to the tenant in possession a declaration, and making him 
 an ejector and proper defendant if he chose it {a). — This rule of Court 
 became absolutely necessary upon the alteration of the object of the 
 action of ejectment, which was now ■ffi rem ; for otherwise the Court 
 might have been instrumental in doing an injury to a third person, 
 because a declaration might otherwise be delivered to a stranger,- a 
 feigned defence be m.ade, and a verdict, judgment, and execution 
 thereon obtained, whereby the tenant would have been ousted, with- 
 out notice of any proceedings against him (a). — Upon this notice to 
 the tenant in possession, and affidavit thereof made, it was usual for 
 the tenant in possession to move the Court, that, as the title of the 
 land belonged to him, he might defend the suit in the casual ejector's 
 name, which the Court, upon affidavit of that matter, used to grant, 
 
 (</) iSdl. Pract. x6j.
 
 348 When Ejectment lies, and the [Chap. XIV. 
 
 and that the suit should be carried on in the casual ejector's name, the 
 I tenant in possession saving him harmless ; and then the casual ejector 
 - was not permitted to release errors in prejudice of the tenant in 
 possession, as the suit was carried on in his name by rule of Court ; 
 and the process for costs was taken out against the casual ejector who 
 was obliged to resort to the tenant in possession to recover back the 
 same, and put his bond of indemnification in suit upon his refusal to 
 pay them. 
 
 Such leases were to be actually sealed and delivered, otherwise the 
 
 plaintiff could maintain no title to the term j they were also obliged to 
 
 V, be sealed on the land itself, otherwise it amounted to maintenance by 
 
 ■ the old law to convey a title to any one, when the grantor himself 
 
 was not in possession (a). 
 
 Such was the original method of proceeding in ejectment when 
 the term was first begun to be recovered; but one alteration by 
 ' degrees begat another, and fiction was heaped upon fiction. During 
 i the exile of King Charles the Second, an entirely new mode of pro- 
 :> ceeding was invented and introduced by Lord C. J. RolUy which 
 T, method has been followed ever since by the Courts, and is therefore 
 8; called the modern practice in contradistinction from the ancient one 
 f, just described {b). 
 
 fi. Modern Practice. — The new method of proceeding in ejectment 
 .-.V depends entirely upon a string of legal fictions ; neither actual lease, 
 "nor actual entry, is made by the plaintiff nor actual ouster by the de- 
 fendant, but all are merely ideal, for the sole purpose of trying the 
 <;,, title. To this end, in the proceedings, a lease for a term of years is 
 . • stated to have been made by him who claims title, to the plaintiff, 
 who is generally an ideal, fictitious person, who has no existence. In 
 this proceeding, which is the declaration, (for there is no other process 
 - in this action,) it is also stated, that the lessee, in consequence of the 
 c.; demise to him made, entered into the premises, and that the de- 
 . ' fcndant, who is also now another ideal, fictitious person, and who is 
 n called the casual ejector, afterwards entered thereon and ousted the 
 irrplaintifF, for which ouster the plaintiff brings the action. Under this 
 -^declaration is written a notice, supposed to be written by the casual 
 e^.ejector, directed to the tenant in possession of the premises, in which 
 notice the casual ejector informs the tenant of the action brought by 
 n'the lessee, and assures him, that as he, the casual ejector, has no title 
 o^at all to the premises, he shall make no defence, and therefore he 
 L, advises the tenant to appear in Court at a certain time and defend his 
 p.i own title, otherwise he, the casual ejector, will suffer judgment to be 
 to had against him, by w^ich, the actual ,tcn;ml,,wUi inevitably be l;MffliP^ 
 4 out of poijscssiou (f)..,,^ <,Ti^,i^ ,", ; prt : mi)i.^t:brjtj Tiib \c jar/Tje ^rfi 
 
 (</) % tJell. Pratt. 163. {i) Ibid.*'' *'^^** '%) fticf. 164.
 
 Sect. I.] Proceedings therein at Common Law, ^49 
 
 The declaration is then served on the tenant in possession, with this 
 
 friendly caution annexed to it, who has thus an opportunity to defend 
 
 ^ his title, which if he omits to do in a limited time, he is supposed 
 
 to have no right at all, and upon judgment being had against the 
 
 casual ejector, the real tenant will be turned out of possession by the 
 
 ^^sheriff (a). " aamfigs i»nj fm^ 
 
 ^'^ But if the tenant applies to be made defendant, it is allowed him 
 
 '"''upon this condition. That he enter into a rule of Court to confess at 
 
 the trial of the cause three of the four requisites to maintain the 
 
 'plaintiff's action, viz. the lease of the lessor, the entry of the plain- 
 
 '^ tiff, and the ouster by the tenant himself, who is now made defendant 
 
 ^instead of the casual ejector ; which requisites, as they are wholly 
 
 fictitious, should the defendant put the plaintiff to prove, he must of 
 
 course be nonsuited at the trial for want of evidence : but by such 
 
 stipulated confessions the trial will stand solely upon the merits of the 
 
 title (5). 
 
 Upon this rule being entered into, the declaration is now altered 
 by inserting the name of the tenant instead of the fictitious name of 
 the casual ejector ; and the cause goes to trial under the name of the 
 fictitious lessee on the demise o£ u4. B. (the lessor or person claiming 
 ^^^ title,) against C, D. (the now defendant,) and therein the lessor is 
 bound to make out his title to the premises, otherwise his nominal 
 lessee cannot obtain judgment to have possession of the land for the 
 f ' term supposed to be granted. But if he makes out his title in a sa- 
 
 ■ tisfactory manner, the judgment is given for the nominal plaintiff, 
 • ' and a writ of possession goes in his name to the sheriff to deliver pos- 
 ' ' session. But if the now defendant fails to appear at the trial, and to 
 
 confess lease, entry and ouster, the nominal plaintiff must then in- 
 deed be nonsuited for want of proving these requisites, but judgment 
 will nevertheless in the end be entered for him against the casual 
 
 ■ ejector ; for the condition on which the tenant was admitted defend- 
 ant is broken, and therefore the plaintiff is put again in the same si- 
 
 ^ tuation as if he had never appeared at all. The same process, there- 
 fore, as would have been had, provided no conditional rule had been 
 
 'made, must now be pursued as soon as it is broken; but execution 
 will be stayed, if any landlord, after the default of his tenant, ap- 
 
 "' plies to be made a defendant, and enters into the usual rule to confess 
 
 t lease, entry, and ouster (c). 
 
 Thus the practice of sealing leases upon the premises (except in 
 the case of vacant possession), and making an actual entry (unless to 
 
 'avoid a fine), and ouster are now dispensed with, and a more easy and 
 
 ' expeditious method is adopted, while the same substantial justice is 
 done to the tenant in possession, by proper notice being given him of 
 the service of the declaration ; nor is there any hardship in compel- 
 
 (a) aSell. Pract.164. {b) Ibid. (0 Ibid. 165.
 
 S50 IJ^hen Ejectment lies, and the [Chap. XIV. 
 
 ling him to confess lease, entry, and ouster, for they are mere for- 
 malities, and have nothing to do with the merits of the case. — The 
 great advantage, indeed, which has resulted from this fictitious mode 
 is, that being- wholly regulated by the Court, it has, from time to 
 time, been so modelled, as to answer in the best manner every end 
 of justice and convenience [a). 
 
 An ejectment, therefore, may be defined a mixed action, by which 
 a lessee for years, when ousted of his term, may recover possession, 
 and damages, and costs. It is real in respect of the lands, but per- 
 sonal in respect of the damages and costs [b). 
 
 Who may have this Action. 
 
 I*ossesslon gives the person enjoying it a right against every man 
 who cannot shew a better title ; the party therefore who would 
 change the possession, must first establish a legal title to it ; for the 
 proceedings in ejectment were instituted in order to try who is enti- 
 tled to the possession of an estate on title (r). 
 
 In order to establish such legal title, the party must have a right of 
 entry, or he cannot bring the ejectment ; for it will not lie in such 
 cases, where the entry of him that hath right is taken away by de- 
 scent, discontinuance, twenty years* possession, or otherwise ; and on 
 those things whereon an entry cannot in fact be made, no entry shall 
 be supposed by the fiction of the parties [d). 
 
 Therefore, where the assignee of a bankrupt brought an ejectment 
 for part of the bankrupt's estate before the enrollment of the bank- 
 rupt's estate made to him by the commissioners, he was nonsuited ; 
 for the assignment is by bargain and sale, which, under stat. 27 H. 8. 
 c. 16. is ordered to be enrolled within six months : and it is enacted 
 by the stat. 13 Eliz. c. 7. and 28 J. i. c. 19. that all the bankrupt's 
 lands, tenements, ^c. shall be sold by deed indented and enrolled ; 
 so that before enrollment, the assignees have no legal title {/). 
 
 But in the case of a common bargain and sale it is otherwise; for 
 there the estate passes by the contract, and is executed by the statute 
 of Uses ; whereas the commissioners of bankrupt have a power ex- 
 pressly regulated by statute (y). 
 
 So, where tenant in tail works a discontinuance, as by a feoffment 
 in fee, and dies, the issue in tail cannot maintain this action, for they 
 cannot enter. Such also is the case as to other descents which toll 
 entries [g). 
 
 The stat. 32 H. 8. c. 28. alters the common law, by giving a right 
 of entry to the wife or her heirs, after the death of the husband, who 
 
 (<i) a Sfll. Pract. 165. {b) Run. Eject, i. (c) 7 '1'. R. 333. 
 
 (</) Run. Eject. 15. 3 Bl. Com, ao6. a Esp. N. P. 430. (f) Ibid. 431. 
 
 (/) Rim. Kjctf. 15. 3 HI. Com. ao6. a Esp. N. P. 431. Sir T. Joins, 196. 
 (^) Lit. Sect. 595. 
 7
 
 Sect. I.] Proceedings therein at Common Latv, 3S1 
 
 had aliened lands and tenements of the inheritance of the wife : so 
 that she or her heirs may now support this action. 
 
 So, by Stat. 1 1 H. 'j. c. 20. it is enacted, That if any woman hav- • 
 ing an estate in dower, or for life, or in tail, jointly with her hus- 
 band, or solely to her own use, but coming from him, shall alien, 
 discontinue, ^c. or suiFer a recovery, such shall be void •, and the 
 husband's heir, or he who is entitled to the lands after her death may 
 enter, and so may maintain this action. — Under this statute to enable the 
 husband's heir to enter upon the lands of the gift of the husband and 
 aliened by the wife against the statute, the remainder must have been 
 limited to the heirs of the husband, not to a stranger ; for the statute 
 was intended for the benefit of the husband and his heirs (a). 
 
 Though a good and lawful title may subsist in the plaintiff, yet he 
 may be barred of his right of entry, and therefore of his power to 
 recover in this action, under the stat. 21 J. i- c. 16. which enacts. 
 That no person shall make an entry into lands, ^c. but within twenty 
 years after his right and title shall first accrue, with the usual savings 
 for infants, feme coverts, and persons insane, ^c. 
 
 Therefore, if the lessor of the plaintiff is not able to prove him- 
 self or his ancestors to have been in possession within twenty years 
 before the action brought, he shall be nonsuited. 
 
 This possession must be an actual possession, not an implied or 
 presumptive possession merely. 
 
 Therefore, in ejectment for mines, the possession of the manor is 
 no evidence to avoid the statute, there being no entry within twenty 
 years upon the mines, which are a distinct possession, and may be a 
 different inheritance (b). 
 
 So also, a verdict in trover for lead dug out of the mine is no evi- 
 dence ; for trover may be brought on property without possession (f). 
 
 So, the possession of a manor is not the possession of a cottage 
 built thereon ; for if it were, the lord would have a better title to that 
 than to any other part of his estate (d). 
 
 Receipt for rent by a stranger is no evidence of possession, to zs \- 
 
 to take it out of him in whom the right is, for it is no disseisin with- \ 
 
 out the admission of him who right has ; not even though he made 
 a lease to the tenant by indenture reserving rent, unless he make an 
 actual entry. So, though the tenant declare that he is in possession 
 for the stranger ; though it may be proper to be left to a jury, espe- 
 cially if the stranger have any colour of title (e). 
 
 If a declaration in ejectment has been delivered within twenty 
 years, and a trial had, whereby lease, entry, and ouster has been con- 
 fessed, if the plaintiff has been nonsuited in that action, and brings 
 another ejectment after the twenty years expired, the former confes- 
 
 (<j) Cro. Eli«. a. , (L) Str. 114a. (0 Bull. N. P. I02. 1. e. (</) Ibid. 103. 
 
 (*) Biill.N. P. 104.
 
 352 Ulien Ejectme?tt lies, and the [Chap. XIV. 
 
 sion of lease, entry, and ouster, shall not be sufficient to save the 
 running of the statute against the plaintiff; for there must be an ac- 
 tual entry within twenty years (a). But 
 
 Possession for twenty years without interruption shall be a good 
 title in itself to enable the party to recover in ejectment, without any 
 other title : for an uninterrupted possession for twenty years is like a 
 descent which tolls an entry, and gives a possessory right that is suf- 
 ficient to support this action [b). So that though the defendant be 
 the person who has lawful right to the premises, yet he cannot justify 
 ejecting the plaintiff who has had twenty years' previous peaceable 
 possession : the possession, however, must be peaceable and uninter- 
 rupted ; for repeated trespasses from time to time will not gain a pos- 
 session (c). 
 
 This action therefore, will not lie by the landlord for encroach- 
 ments by the tenant on the waste. 
 
 In such a case. Lord Kenyan revolted at the idea that the tenant could 
 make the landlord a trespasser ; which, he said, would unavoidably 
 be the case, if the landlord could recover in this action. His lord- 
 ship clearly held, that if a tenant inclose part of a waste, and is in 
 possession thereof so long as to acquire a possessory right to it, such 
 enclosure does not belong to the landlord ; but, if the tenant has ac- 
 knowledged that he held such inclosed part of his landlord, this 
 would make a difference (^). 
 
 The twenty years' possession in order to give a title and so bar an 
 ejectment, must be an adverse possession : for where it appears not 
 to be adverse, the statute of limitations does not run. 
 
 Therefore where a man made a mortgage as a collateral security, 
 the interest having been paid for twenty years and more, the mort- 
 gagee was held not to be barred of bringing his ejectment, though 
 the mortgagor had continued for that time in possession : for their 
 titles being the same, there was no adverse possession [e). 
 
 So also in ejectments by joint-tenants, the possession of one joint- 
 tenant or coparcener is the possession of the other, so as to prevent 
 the statute of limitations from running against the title of either : and 
 if one joint-tenant levy a fine, though it sever the jointure, it does 
 not amount to an ouster of his companion (/). 
 
 So, with respect to tenants in common, if one of them bring an 
 ejectment against the other, there must be an actual ouster and ad- 
 verse possession proved, in order to bar the defendant, for though 
 one tenant in common may disseise another, it must be done by ac- 
 tual disseisin, and not by bare perception of the profits only ; for ge- 
 nerally speaking, the possession of the one is held to be the posses- 
 sion of the other (g). 
 
 (a) Bull. N. P. 100. (6) Esp. N. P. 432. i Ld. Raym. 7.11. (0 i Ves. 189. 
 
 (J) 1 E»j.. R. 460. (<") Ld. Raym. 740. (/) .Salk. 185. 
 
 (f ) Co. Lit. 195 b. a Ld. Rayni. 829. 1 Salk. 4»a. s. c. 3 Esy. N. P. 431-
 
 Sect. I.J " ' Proceedings therein at Common Law. .'553 
 
 Also, where two are m possession the law will adjudge it in him 
 that hath the right : for the statute never runs against a man J^ul 
 where he is actually ousted or disseised. 7 
 
 ' "Where a right of entry is given in three months after notice of 
 premises being out of repair, acceptance of rent after three months 
 expired, dbes not prevent plaintiff from maintaining ejectment^; par- 
 ticularly if the premises are not repaired at the time,of„th9 fiction, 
 being brought {a), ' . . < ., 
 
 't'What shall be deemed an actual ouster, so as. to constitute ari ad- 
 verse possession in one tenant in common against another, is matter 
 for the consideration of the jury. 
 
 Thus, thirty -six years' sole and uninterrupted possession by 6|ie 
 tenant in common, without any account to, demand made, or claim 
 set up by his companion, was held to be sufficient ground for the jury 
 to presume an actual ouster of the co-tenant, and they did so Re- 
 sume {h). 
 
 So, if upon demand by the co-tenant of his moiety, the othep, rei 
 fiises fb pay, and denies his title, saying he claims the whole ancl wijl 
 riot pay, and continues in possession, such possession is adverse ari^jt 
 ouster enough (r). " .. \ 
 
 ■ 'In ejectments' by tenants in common, an entry by one shall be 
 ^bd for all, for he shall be supposed to enter according to his estate, 
 — A man cannot be disseised of an undivided moiety -, and if a man 
 be seised of the whole, and makes a lease to another of a moiety un- 
 divided, and a stranger ousts the lessee, he must bring his ejectment 
 of a moiety, and so if they be both ousted, they must bring several 
 ejectments Id). "^ ^ 
 
 For, where two persons claim by the same title, there shall not in 
 general be an adverse possession presumed, so as to toll an entry of 
 Ihe oiie, but the entry of the other being deemed alvvays lawful, 
 shall preserve the unity of the title [e). , 
 
 Thus, where the defendant made title under the sister of the'lessor 
 tffilfe ■ plaintiff, and proved that she had enjoyed the estate above 
 twenty years, and that he had entered as heir to her, the Court did 
 not regard It, because her possession was construed to be by curtesy, 
 and not to make a disherison, but by licence to preserve the possession 
 of the brother, and therefore was held not to be within the Intent of 
 the statute. But had the brother ever been In actual possession and 
 Oiist^d by his sister, it would have been otherwise, for then her entry 
 dduia not possibly be construed to be to nreserve bis ppsses- 
 sion (/). . - < 
 
 {a) I Esp. R. 393. (l>) Cowp. ai7. (c) Ibid. ai8. ' '{</) "Hob: 120. Esp. N.F: 
 
 434. Salk. 285. (0 Co. Lit. -242. Esp. N. P. 434. (/) Bull. N.p..iP2. 
 
 Co.Lit.-24«^b.-/ - '' V. '"4,* ^^v"^ S 
 
 -v. o « .- r -"'M .LU X' J am J!il :ti3i %%1^
 
 S54 JVheti Ejectment lies, and the [Cliap. XIV. 
 
 So, the possession of one co-heir in gavelkind is not the possession 
 of the other, where he enters with an adverse intent to oust the 
 other (a). 
 
 Where lights had been put cut and enjoyed without interruption 
 for above twenty years during the occupation of the opposite premises 
 by a tenant, that will not conclude the landlord of such opposite 
 premises, without evidence of his knowledge of the fact, which is the 
 foundation of presuming a grant against him, and consequently will 
 not conclude a succeeding t*'nant who was in possession under such 
 landlord from building up against such encroaching lights (^). 
 
 If there be several lessors and you lay the declaration quod demise- 
 runty you must shew in them such a title that they might demise the 
 whole; and therefore if any of the lessors ha've not a legal interest 
 in the whole premises, he cannot in law be said to demise them ; 
 for it is only his confirmation, where he is not concerned in in- 
 terest (f). 
 
 But, where one claims under or through the other, there shall be 
 no adverse possessioTi. 
 
 Therefore, though if a cottage be built in defiance of the lord of 
 a manor, and quiet possession of it has been had for twenty years, it 
 seems it is within the statute, and the lord shall not recover; yet if it 
 were built at first by the lord's permission, or any acknowledgment 
 had been since made (though it were a hundred years since), the sta- 
 tute will not run against the lord ; for the possession of a tenant at 
 will for ever so many years is no disseisin j there must be a tortious 
 ouster [d). 
 
 Husband and wife may join in a lease, without saying that it was 
 by deed, though form.erly held to be necessary [e). 
 
 A mortgagee may maintain an ejectment in order to obtain posses- 
 sion of the mortgaged premises or estate. — But a distinction is to be 
 observed where the ejectment is against the tenant holding under a 
 lease prior to the mortgage ; and where against the mortgagor him- 
 self, or against a tenant in possession under a lease or dem.ise made 
 subsequent to the mortgage [f). 
 
 For where lands are let for years and afterwards mortgaged, the 
 tenant's possession is protected, and he cannot be turned out by the 
 mortgagee until his tenancy has been regularly determined by the ex- 
 piration of the lease, a notice to quit, or oiiierwise ; but when the 
 tenant has been let into possession by the mortgagor subsequently to 
 the n)ortgage, without the privity of the mortgagee, in such case an 
 ejectment may be nniaintained by the mortgagee without any previous 
 
 (a) I Bl. K. 675. (A) n East, 372. (.; Bull. N. P. 107. (^) Ibid. 104. 
 
 (»; % Co. 61. Esp. N. F. 449. (/) Ibid. 4J5.
 
 Sect. I.] Proceedings therein at Coimnon I arc. SSS 
 
 iiotlce to the tenant, for the mortgagor has no power either express 
 or implied to let leases not subject to every circumstance of the 
 mortgage ; and therefore such lessee is a trespasser disseisor and 
 wrong doer, and may be turned out at any moment by the mortgagee. 
 If however the mortgagee has assented to such tenancy, it must then 
 be regularly determined before an ejectment can be supported (a). 
 
 In like manner, if the mortgagee assign the mortgage, and the 
 assignee assigns to another, this last assignee may maintain this action 
 for the mortgaged premises [I^). 
 
 A second mortgagee who takes an assignment of a term to attend 
 the inheritance, and has all the title deeds, and had no notice of the 
 first mortgage, may recover in ejectment against the first mort- 
 gagee (f). 
 
 The devisee of a term of years may maintain ejectment to recover 
 the term devised ; but he must shew the assent of the executor ; 
 which will be sufficiently done by proof of the executor having paid 
 a certain sum, where the term was devised to him for life, he paying 
 to a particular party such sum (d). 
 
 But, in the case of the devise of a freehold, the devisee may im- 
 mediately and without any possession, maintain an ejectment for the 
 lands devised ; for after the testator's deceJise, the law casts the free- 
 hold on the devisee : and even should the heir enter and die seised, 
 and a descent be cast, yet, it is said, the devisee may enter (unless 
 he be barred by a fine levied by the heir and five years non-claim) and 
 maintain an ejectment (e). 
 
 Tenant by elegit may maintain this action in order to be put into 
 possession under the e/egity of the lands returned by the inquisition 
 before the sheriff {/). 
 
 The conusee of a statute-merchant also may bring this action. 
 
 The assignees of a bankrupt, by virtue of the general assignment 
 to them by the commissioners, are entitled to maintain ejectment in 
 respect of all leaseholds (except for lives) belonging to the bankrupt, 
 whether the same be in his possession at the time of the bankruptcy, 
 or are acquired by him afterwards. But the freehold lands of a bank- 
 rupt do not pass by such assignment, but must by the provisions of 
 13 E/iz. c.-j. be conveyed by the commissioners by deed indented 
 and enrolled ; and until the enrollment as well as the bargain and 
 sale is completed, the assignees cannot maintain ejectment. The 
 bargain and sale also only affects the lands to which the bankrupt is 
 entitled at the time of its execution : if he acquire any future real 
 estates, there must be a new bargain and sale to vest the legal estate in 
 assignees [g). 
 
 (rt) Doug. 21,22. (^) Salk. 245. (OiT. R. 755. (</; i Str. 70. 
 
 (*) Co. Lit. 240 b. {f) Doug. 473. Bull. N. P. 104, (^ ) Ex parte Proydfoot. 
 
 I Atk. aja. Esp, N. P. 431. 
 
 A a 2
 
 356 TVheji Ejectment lies, and the [Chap. XIV. 
 
 The bargain and sale to the assignees does not relate to the act of 
 bankruptcy, so as to vest the title in them from that time ; but the 
 demise must be after the bargain and sale [a). 
 
 A sale by the commissioners of lands of which the bankrupt is 
 seised in tail by deed inrolled, shall have the same effect to bar the 
 intail as if a recovery had been suffered of them by stat. 21 J. i. 
 c. 19, /. 12. 
 
 An award under a submission to arbitration, will give a good title, 
 on which to maintain this action. 
 
 Thus, where ejectment was brought for certain lands, on several 
 demises of Grevith. Morrisy and others, to support the title of the 
 lessors of the plaintiff, a submission to arbitration by bond from 
 Morris, and another, respecting these lands, was given in evidence, 
 and an award by R. Sheldon and R. M. Phillips, esqrs. the arbitrators, 
 that the lands were the property of Morris, and this was relied on as 
 conclusive evidence of the title of Morris. The counsel for the de- 
 fendants objected that this was not sufficient, for that the award could 
 convey no title. It might have been enforced by rule of Court, or 
 action on the bond, if the possession was refused by the defendant : 
 but that it did not avail there. Lawrence, J. « I am of a different 
 opinion. The parties chose these gentlemen as judges to determine 
 the right between them. They have determined that right, and their 
 decision is binding on the parties, and I think it conclusive evidence 
 of the right between them here." Verdict for the plaintiff. The 
 learned Judge's opinion was confirmed by the Court of K. B. on a 
 motion for a new trial in Mich. T. 1802 [b). 
 
 If a rent-charge be granted to any one, with a proviso that if the 
 rent be in arrear it shall be lawful for the grantee, his heirs and as- 
 signs, to enter and hold the lands out of which the rent-charge is 
 granted till he shall be satisfied out of the arrears : this shall give to 
 the grantee such an interest that he may make a lease of the land by 
 which he may maintain his ejectment (c). 
 
 The committee of a lunatic may bring an ejectment ; but it must 
 be in the name of the lunatic ; for the committee is but as bailiff, 
 and cannot make leases of the land [d). 
 
 An infant may maintain this action ; but he must name a good 
 plaintiff, who may be answerable for the costs (e). 
 
 Executors may maintain ejectment for land let to their testator 
 for years, if the testator is ousted ; for by stat. 4 E. c. 6. an action is 
 given to executors for goods taken out of their testator's possession, 
 and the act extends to this case, because the term itself is recovered, 
 — So, if the executors themselves of the lessee for years are ousted, 
 
 (a) 2 M. & S. 44-6. (i) Doe fx ilem. Grevillc and others v. Roper. At Hereford 
 
 Oxford Sumrnir Assizes, i8oa. 'l"s. MSS. {c) iSaund. Ii3. i Lev. 170. (</) Hob. 
 
 aij. Hutt. 16. 2 Wils. 130. (t) I Str. 694.
 
 Sect. 1.3 Proceedings therein at Common Law, 357 
 
 they may have either a special writ on the case, or an action of eject- 
 ment [a). 
 
 The administrator also of a yearly tenant as long as the lessor and 
 lessee pleased, may maintain an ejectment ; for the administrator has 
 the same interest in the chattel as the intestate had. — So if the spiri- 
 tual court grant administration pendente lite^ such an administrator 
 may bring this action. 
 
 An alien cannot maintain an ejectment, for he cannot take lands by 
 descent. 
 
 As to the issue of aliens, and to children born out of the realm, it 
 is settled by stat. 25 E. 3. s. 2, that children, whose fathers and mo- 
 thers, at the time of their birth, should be liege subjects of Englandy 
 shall be inheritable to lands within the kingdom, though such chil- 
 dren were born out of the kingdom ; and by stat. 7 Ann. 5. and 4 G. 
 2. s. 4. all children born out of the liegeance of the crown of Great 
 Britawj whose fathers are natural-born subjects, shall be deemed na- 
 tural-bom subjects and so may inherit lands. 
 
 It was formerly said, that in order to enable a corporation aggre- 
 gate to maintain ejectment, it was necessary for them to give a letter 
 of attorney to some person to enter and seal a lease upon the land, 
 inasmuch as they cannot enter and demise upon the land as natural 
 persons can {b) ; and that therefore when a corporation aggregate is 
 lessor, the plaintiff ought to declare upon a demise by deed ; but this 
 rule no longer prevails, and the demise may now be laid in the com- 
 mon form (c). 
 
 So, a corporation sole may bring ejectment : as a bishop against 
 th« copyholders of a manor belonging to the bishoprick, for a for- 
 feiture committed while the see was vacant ; and the lord of a manor 
 may bring this action in the like case {d). 
 
 But where a pauper had been put in possession of a cottage forty 
 years ago, by the then existing overseers of the poor, and had conti- 
 nued in the parish pay, and the cottage had been from time to time re- 
 paired by different overseers, till two years ago, when the pauper dis- 
 posed of it to the defendant and went away: yet it was held, that the 
 existing overseers could not maintain ejectment for it, having no deri- 
 vative title as a corporation from their predecessors, so as to connect 
 themselves in interest with the overseers by whom the pauper was put 
 in possession, and the pauper having done no act to recognize his 
 holding under the demising sets of overseers [e). 
 
 But trespass cannot be maintained against a corporation as such ; yet 
 the lessor is not without remedy ; for at any rate the tenancy may be 
 determined by notice to the corporation served on its officers •, and if 
 
 (a) Esp. N. P. 439. 3T.R.13. iAtk. 286. Co. Lit. 129. (b) Bull N. P. 98. 
 
 (f) I Ld. Raym. 136. Run. Eject. 149. (/) Bull. N. P, 107. Esp. N. P. 440. 
 
 (0 14 £a!>t's R. 488.
 
 558 JVhen Ejectment lies, and the [Chap. XIV. 
 
 after such determination, the cattle of any other person be found upon 
 the premises they may be distrained {a). 
 
 A copyholder, if ejected by his lord, may maintain ejectment 
 against him (b) ; for though he is called a tenant at will, yet it is ac- 
 cording to the custom of the manor, and he cannot be put out while 
 he performs his services [c). — But in such cases it seems to be neces- 
 sary that he should be empowered either by the custom of the manor 
 or the licence of the lord, to make a lease : but even without such a 
 power the copyholder can maintain ejectment against all persons but 
 the lord (</). 
 
 If the heir apparent of a copyholder in fee, surrender in the lifetime 
 of his ancestor and survive him, the heir of such surrenderor is not 
 estopped, by that surrender of his ancestor, from claiming against the 
 surrenderee [e\ For, in order to pass an estate by surrender, the es- 
 tate must pass into the hands of the lord, through which it must be 
 taken; and a fine differs from the case of a surrender ; for that will be 
 good against the heir by estoppel, although it passes no estate at all: 
 but if a surrender be not good, there will be no estoppel (/). 
 
 A party claiming copyholds by descent has as complete a title with- 
 out admittance as with it, against all the world but the lord {g) : 
 wherefore the court will not grant a mandamus to compel the lord to 
 admit such a copyholder; though generally the lord is compellable by 
 mandamus or decree, to admit ; as in case of a surrender {h). 
 
 So, a widow entitled to her free-bench may maintain this action be- 
 fore admittance •, for it comes out of the estate of the husband : and 
 is a customary right, nomine dotis, and so declared by Bracton (i). 
 
 But in the case of surrender, no complete title vests in the surren- 
 deree till admittance, for till then it remains in the surrenderer : and 
 if he dies, it is so much in him that his heir may maintain eject- 
 ment (/&). 
 
 If, however, a surrender be made, the admittance shall relate to 
 that time, so that the surrenderee may recover on a demise laid be- 
 tween the time of surrender and admittance (/). 
 
 For there is no rule better founded in law, reason and convenience 
 than this, That all the several parts and ceremonies necessary to com- 
 plete a conveyance shall be taken together, as one act ; and operate 
 from the substantial part by relation : thus, livery relates to the feotF- 
 ment; inrollment to the bargain and sale; a recovery to the deed 
 that leads to the use ; so admittance shall relate to the surrender, es- 
 pecially when it is a sale for a valuable consideration (/»). 
 
 (a) 8 East, 230. {L) Ibid. {c) Cro. Kliz. 535. (,/) Ibid. 676. 
 
 (r) 3 T. R. 365. (/) 1 V«. 130. {g) a T. R. 197- 1 Wils. 183. 
 
 {L )s I3urr. i787. (() Hiitt. j8. Hob. 181. a Daiiv. Abr. 184. Ambl. 199. 
 
 (i) »'t-lv. 144. Bull. N. r.' 108. i Wils. 13. I E,.m'sR.632. 3 T. R. 169. 
 
 r/j I r. R. 6cc. (»/j 5 Burr. 2787.
 
 Sect. I.] Proceedings therein at Common LartK S59 
 
 Where a copyholder dies, and' the lord seizes tlie Lmd, and the heir 
 brings an ejectment for the seizure, the heir must shew that he has 
 tendered himself to be admitted at the lord's court : or that the lord 
 has dispensed with such tender. And where it appeared that the 
 steward, upon the application of the copyholder out of court, had 
 refused to admit him; this was held a sufficient excuse (a). 
 
 If a sheriff sells a term under a writ oi fieri facias^ which is after- 
 wards set aside for irregularity, and the produce of the sale directed 
 to be returned to the termor, the termor cannot maintain ejectment to 
 recover his term against the vendee under the sheriflF(^). 
 
 Tor xchal this Action kHI lie. 
 
 An ejectment will lie for nothing of which the sheriff cannot de- 
 liver possession under an execution • therefore it will not lie for in- 
 corporeal hereditaments, as a reiU, commo'! /jt cause de vicinage, which 
 is a mere permission, or other r.hing_ lying in grant, qu^e tieque tangi, nee 
 videri possunt [c\ 
 
 But it will lie for common appendant or appurtenant, for the she- 
 riff by giving possession of the land gives possession of the com- 
 mon {d). 
 
 The Stat. 32 H. 8. c. 57. enacts, That where any person shall have 
 an estate of inheritance in tithes or other spiritual profits which shall 
 be in lay lands, he may maintain an ejectment or other action for 
 them.— This action is now allowed where the tithes are in the hands 
 of the clergy {e\. 
 
 An ejectment lies for small tithes : therefore the action has been 
 adjudged to lie for wool, being tithe ; and by the same reason for an 
 
 egg(/). 
 
 An ejectment will lie by the owner of the soil for land subject to a 
 passage over it, as the king's highway : for the king has nothing but 
 the passage for himself and his people, but the freehold and all pro- 
 fits belong to the owner of the soil, so do all trees upon it, and mines 
 under it \ therefore the owner may carry water pipes under it [g). 
 
 But it shall be recovered subject to the easement; which the owner 
 may get discharged by a writ of ad quod damnum {h). 
 
 An ejectment for a manor, generally, is bad, without expressing the 
 number of acres for services belonging to the manor [i). 
 
 An ejectment will lie for a church ; but it must be demanded by 
 the name of a messuage. In this case, it was said, that the curate 
 may have a rule to defend t[uoad a right of entry to perform divine 
 service ; but that case has been over-ruled (k). 
 
 (a) a M. & S. 87. (i) I M. & S. 435. (c) Bull. N. P. 99. (J) Ibid, 
 
 (*) Esp. N. P. 428. (/) 4Ld. Raym. 789. (^) Burr. 143. (i) Ihid. 
 
 (/^Esp. N. P. 4s8. Hed. 80. (i) Esp. N. P. 438, Saik. 456.
 
 360 When Ejectment lies, and tlie [Chap. XIV. 
 
 So an ejectment for " a certain place called the vestry in D." was 
 held well enough [a). 
 
 This action lies for an orchard; which may be demanded in the 
 precipe either by that name, or by the name of a garden (^), 
 
 So, it lies for a stable, and a cottage (f). 
 
 It seems to be the better opinion, that an ejectment will not lie for 
 a close, and that giving it a particular name will not make it suffi- 
 ciently certain for the sheriff to be able to deliver it : So it will not lie 
 for *' a piece of land (J)." 
 
 Nor for the third part of a close, or fourth part of a meadow, with- 
 out setting forth the particular contents or number of acres ; and 
 such number should be stated with certainty, and not by estimation ; 
 also the nature of the land, as whether meadow, pasture, arable, l^c. 
 should be mentioned {e). 
 
 But for a close called D. containing three acres of land, was held 
 well enough ; for " land," signifies arable land ; therefore both quan- 
 tity and quality were specified. The cases, hov/ever, on this point 
 are contradictory i^f). 
 
 Ejectment for ** a messuage or tenement" is too uncertain ; the 
 word " tenement" being of more extensive signification than the word 
 *' messuage-," consequently it is uncertain what is demanded by the 
 ejectment. For the same reason it has been held that it will not lie 
 for a tenement only i^g). 
 
 Therefore, where in ejectment, the plaintiff declared of " one mes- 
 suage or tenement" and had a verdict ; it was moved in arrest of 
 judgment, because an ejectment will not lie of a tenement ; and 
 *' messuage or tenement" is so uncertain that the sheriff cannot tell of 
 what he shall give possession ; for a tenement may be of an advow- 
 son, a house or land of any kind. Wllmot^ C. J. — To be sure there 
 are many old cases, where judgments in ejectment have been arrested 
 for this supposed uncertainty ; but I do not recollect any very mo- 
 dern case : There was a late case in B. R. where the declaration was 
 of a messuage and tenement, and that Court gave leave to strike out 
 the words " and tenement," and to proceed for the messuage. I 
 think " a messuage or tenement," in common parlance, means a mes- 
 suage : and at this time of day, no mortal imagines that a tenement 
 means any thing but a dwelling-house, for by long use it has acquired 
 that definite signification. — Hesilante curia^ a rule was made to shew 
 cause why judgment should not be arrested (/j). 
 
 This matter came on again, and was debated by counsel on both 
 sides : when tlie Court seemed inclined to get over this objection if 
 
 {a) T, Lev. 96. [L) Cro. Eliz. 854. do. Jic. 654. (t) Run. Eject. 122. 
 
 (i/) Ibid. Salk. 254. Cro. Jac. 435. 654- («) l^""- l^tct. 123. (/) Ibiil. Cro. Jac. 435. 
 
 (^) Run. I'ijftt. 124. Cro. I'.liz. 186. 1 East's R. 441. (/>) 3 Wils. 13.
 
 Sect. I.] Proceedings titerein at Common Law. 361 
 
 possible, and took further time to consider, until the last day of the 
 term : \_Note, It was first before the Court on the second day of 
 Term.] but at last they thought themselves bound by the cases cited, 
 and (against their inclination) arrested the judgment. 
 
 But it is questionable, whether the reason on which the objection is 
 founded, ought at present to prevail ; inasmuch as the sheriff now de- 
 livers possession of the premises recovered, according to the direction 
 of the plaintiff himself (o). 
 
 An ejectment for a messuage a?/^ tenement has been held good after 
 verdict [b). 
 
 So, a messuage or tenement, with other words expressing its 
 meaning, is good ; as " a messuage or tenement called the Black Swan;" 
 for the addition reduces it to the certainty of a dwelling-house (c). 
 
 So, for a messuage or burgage in H. is good; because they signify 
 the same thing in a borough. — So, for a messuage or dwelling-house ; 
 for they are synonymous terms [d). 
 
 So, ejectment for a house is good : but it is said that in the pracipe 
 it ought to be demanded by the name of *' a messuage (^)." 
 
 So, ejectment lies for part of a house ; as of a chamber in a house ; 
 or of one room in a house {f). 
 
 But an ejectment of a kitchen was determined to be bad ; for though 
 the word be well understood in common parlance, yet because any 
 chamber in a house may be applied to that use, the sheriff hath not 
 certainty enough to direct him in the execution ; and the kitchen may 
 be changed between judgment and execution [g). 
 
 The courts have long discontinued the rules which govern the 
 pnecipe, and allow many things to be recovered in this action, which 
 cannot be demanded in that writ. Indeed it has repeatedly been de- 
 termined that such precise certainty is not requisite in ejectment, as 
 in a precipe quod reddat ; in which it is necessary to describe the lands 
 demanded once, at least, with certainty and precision, that the de- 
 fendant may know what he is to defend. Even in that proceeding, 
 whenever the term used, either in respect to quantity or quality, was 
 sufficiently certain and notorious to answer that purpose, it was good, 
 though not particularly named in the Register. — Of late years many 
 things have been improved by art, which having required new appel- 
 lations, are now not only perfectly understood by the law, but 
 familiar to common understanding, though not to be found in antient 
 law-books. Words and names are arbitrary : and as men contracted 
 by such new appellations, it was but reasonable to permit the remedy 
 to follow the nature of the contract. Indeed, whilst ejectments were 
 compared to real actions, and arguments were drawn by analogy from 
 
 (a) Run. Eject. 134. (I/) i T. R. 11. (c) i Ld. Raym. 191. Cowp. 35c. 
 
 Run Eject. I Jj. (</) Ibid. (f) Ibid. Ii2. Cro. Jac. 654. (/) z Str. 695. 
 
 3 Wils. 49. (g) Run. Eject. 122.
 
 S62 When Ejectment lies, and the [Chap. XIV. 
 
 ihem, they were of course fettered : and this was very much the case, 
 till after the reign of James the First. But of later times an ejectment 
 has been considered vlth more latitude and greater liberality, as a 
 fictitious action to try titles with more ease and dispatch, and with 
 less expence to the parties {a). 
 
 Even formerly an ejectment would lie for a hop-yard. — So, for 
 aldercarr, a provincial term vi'ell known in Norfolk^ where it signifies 
 land covered with alders. — In Torkshire, it is common to bring this 
 action for cattle-gates, agreeable to which, it has been held, that an 
 ejectment will lie for a beast-gate •, a term used in Suffolk to denote 
 land and common for one beast. A cattle-gate is a distinct thing 
 from a right of common ; it passes by lease and release ; cannot be 
 devised but according to the statute of Frauds ; and has been decided 
 to be a tenement, within stat. 13 ^ 14 C 2. c. 12. for the purpose 
 of gaining a settlement (b). 
 
 Where an ejectment was brought for a c» oft and an acre of meadow, 
 the plaintiff had a verdict, and a special judgment for his acre of 
 meadow, releasing the costs and damages for all ; for he was allowed 
 his costs, because by the judgment he had a just cause of suit against 
 the defendant. 
 
 So, this action will lie for fifty acres of furze and earth, and fifty 
 acres of moor and marsh (c). 
 
 It lay, also, for so many acres of bog in Ireland^ where that word 
 has but one signification, and comprehends only one sort of land. — 
 So, it will lie for mountain in Irelandy because the word mountain is 
 rather a description of quality than the situation of the land. — So, for 
 " a quarter of land," in Irelandy for it may be a term as well known 
 there as mountain is : and that the Courts here will intend [d). 
 
 An ejectment may be brought for ten acres of wood and ten of 
 underwood; for they are of different natures; and even if otherwise 
 bis petituvi is no objection in an ejectment v<f ,. 
 
 Whether it will lie for a fishery seems rather doubtful ; the old cases 
 are against it ; but the more modern opinion inclines to support the 
 action (y). For though an ejectment de piscartd in such a river has 
 been holden ill, and the action will not lie pro quodain rivulo, sive 
 aqua cursu called Z), because it is impossible to give execution of a 
 thing that is transient and always running ; the doubt seems to 
 apply merely to the name by which it is recoverable, for an assize 
 will certainly lie for a piscary, and there is no doubt that a fishery is a 
 tenement \ trespass will lie for an injury to It, and it may be recovered 
 in an ejectment ; and where a fishery is demised, it will be presumed 
 that the soil passed along with it {g). 
 
 But it lies for a bcilary of salt \ for that is not, like a piscary, tran- 
 
 '^fl) Ri;n. l^jfct.. Ii6. {h) Ibid. (^) .^Kuir. 2672. {d) Run. Eject. Ij8- 
 
 {() Ibid. 129. (/) Ibid. 13J. {g) I 7. R 361.
 
 Sect. I. j Proceedings Iherein at Common Laiv. 363 
 
 sient and running, but the water is fixed within a certain space and 
 may be taken to be part of the soil ; and by the grant generally of a 
 boilary of salt, the soil itself passes (a). 
 
 An ejectment however for a water-course or stream of water is ill, 
 for possession of it cannot be delivered : it should be of so much 
 *' land covered with water (^)." 
 
 This action lies for the first crop ; for the first grass, prima ionsura, 
 is the best profit of the property, wherefore he who has it is esteemed 
 the proprietor of the land itself, till the contrary be proved (c). 
 
 So an ejectment lies for herbage ; herbage being the most signal 
 profit of the soil, and the grantee having at all times a right to enter 
 and take it (J). 
 
 So, it should seem, this action would lie for the hay-grass and 
 aftermath of a meadow ; for the same reason (e). 
 
 So, it will lie for a sheep-walk ; as pro pastura centum ovitimy that 
 is, as much land as will feed one hundred sheep {f). 
 
 But it will not lie for pannage ; that not being the immediate pro- 
 duce of the soil itself, but merely the masts that fall from the trees, 
 on which the swine feed (^). 
 
 An ejectment lay at common law for a rectory, which consisting of 
 a church, glebe lands and tithes, has been said to resemble a manor i 
 the church being compared to the mansion-house, the glebe lands to 
 the demesnes, and the tithes to the services. 
 
 Chapels having become lay inheritances, are recoverable In eject- 
 ment like other lay estates ; a chapel should however be demanded by 
 the name of a messuage. 
 
 Ejectment will not lie for encroachments on the waste, made by the 
 tenant. 
 
 On a lease of ground to build on, if the building corresponds with 
 the abuttals, though they do not with the measured distance, as set 
 out in the lease, if the lessor has seen the progress of the building 
 without objection made, he shall not be allowed to claim the part 
 inclosed upon, but his acquiescence shall be presumed (hi). 
 
 So, where a man suiFers another to build on his ground without 
 setting up a right title till afterwards, a court of equity will oblige the 
 owner to permit the person building to enjoy it quietly (/). 
 
 Of the Action qfEjectment,'ivhere the Tenant is i?i Possession. 
 
 As the old mode of proceeding must be adhered to in very few 
 cases, we have noticed those cases under a separate head ; conceiving 
 
 (^) Run. Eject. 131. (^) Esp. N. P. 4a8. Ydv. 143. (.-) Cio. Car. 562. 
 
 (/y; Hard. 330. (/)iT. R. 4ja. (/) Run. Eject. 133. (^) Ibid. 
 
 (*) Ibid. 249. (') a Atk. 83. 3 Ibid. 693.
 
 4 When Ejeclment lies, and the []Chap. XIV. 
 
 that plan to be more perspicuous, than introducing them incidentally 
 in treating of that part of the subject which regards the modern 
 method of carrying on the action. 
 
 Having, therefore, concisely stated the general principle and prac- 
 tice of this action, and enumerated the cases in which, and the things 
 for what, it lies, we proceed more particularly to consider the present 
 practice in common, and indeed v/ith the exception mentioned, in all 
 cases. 
 
 The cases that more immediately apply to the subject of this work, 
 are those in which a landlord is compelled to have recourse to this 
 remedy in consequence of 
 
 I St, His tenant holding over without his permission and against 
 his consent after the term has expired by effluxion of time : for a man 
 may come in by rightful possession and yet hold over adversely with- 
 out a title, and if he does, such holding over, under circumstances, 
 will be equivalent to an actual ouster [a). 
 
 2dly, His tenant determining the lease by non-payment of rent, or 
 non-performance of covenants, where a right of re-entry and forfeiture 
 are conditioned on the breach of them. 
 
 In these cases the modern method of proceeding prevails, for the 
 nature of which we refer the reader to the introductory part of this 
 title. 
 
 The proceedings in the Court of King's Bench may be either by bill 
 or original, but the latter mode is preferable, as no writ of error can 
 be brought thereon except in Parliament. — In the Common Pleas they 
 are always by original {b). 
 
 The declaration and notice are the first process, no writ being sued 
 out (c). 
 
 Ejectment being a local action, the venue must be laid in the county 
 in which the premises are situate. Proceedings being in renty the 
 effect of the judgment cannot be had, if the venue be laid in a wrong 
 place. Possession is to be delivered by the sheriff of the county, and 
 as trials in England are in particular counties, the oncers are county 
 officers; the judgment therefore could not operate, if the action was 
 not laid in the proper county {d). 
 
 But the premises being laid to be in Farnhatrif and proved to be in 
 Farnham F.oyaly is not a fatal variance, unless it be shewn that there 
 are two Fartihams [e). 
 
 As the plaintiff must recover by the strength of his own title, he 
 must shew a good and subsisting one at the time of the ejectment 
 brought, and therefore though the plaintiff by the new xnethod of 
 proceeding is not obliged to make an actual entry, or a real lease, yet 
 he must lay the commencement of the supposed lease in his declara- 
 
 (a) Cowj.. ai8. (i) J Sell. I'uct. i68. (0 IWd- (</J 6 Mod. 2ZZ. Cowj.. 176. 
 
 (f) I J East's R. 9.
 
 Sect. I.] Proceedings therein at Common Law. 365 
 
 tion preceding the ouster and ejectment of the defendant ; because the 
 wrong complained of by the plaintiff is, that the defendant entered 
 upon his possession, which he hath title to by virtue of the demise 
 mentioned in the declaration ; therefore if the ejectment and ouster 
 should be laid before the commencement of the lease, though such 
 ouster be wrong, yet the plaintiff ought not to complain of it, for it 
 was no wrong to him, inasmuch as by his own shewing it was done 
 before his title commenced [a). 
 
 Where a demise was laid on the 24th of y««^, to hold from the 
 said 24th of JufiSj by virtue of which on the day and year last men- 
 tioned he (the plaintiff) had entered, and the defendant afterwards 
 (to wit) on the 24th of June, had evicted him, it was held to be bad, 
 ior from being exclusive, the lease did not commence till the 25th of 
 June {b). 
 
 The word " from" however has since received a more liberal con- 
 struction, and " from the day of the date" are now held to import 
 either inclusively or exclusively, so as to give effect to the deed, and 
 to support the intention of the parties (r). 
 
 But where possession had been demanded on the 5th of October of 
 the defendant, who had been tenant at will to the lessor of the plain- 
 tiff, and an ejectment was brought, and the demise was laid on the 
 I St of October y it was adjudged that the plaintiff could not recover, 
 the tenancy not having been determined until after the day of the 
 demise in the declaration (d). 
 
 In ejectment on the demise of an heir by descent, the demise was 
 laid on the day the ancestor died, and held well enough after verdict ; 
 for as to the fraction of a day, a fiction of law may heal, but shall 
 not hurt {e). 
 
 So, where the ejectment was brought by a posthumous son, and 
 the demise laid from the time of his father's death. Lord Hardivicke 
 inclined to think that it was good, and that the defendant would be 
 estopped to say he was not born at the time of the demise laid, by 
 Stat. 10 525* 1 1 ?F. 3. c. 16 (f). 
 
 Where a tenancy of glebe lands expired on December 25 ; and on 
 January 1 7 following a sequestration was read in the church ; the 
 rector was allowed to recover in an ejectment laying the demise be- 
 tween the 2 $th o{ December and the 17th of January, although no 
 writ of possession could issue •, for at the time of the demise he had 
 the legal title (g). 
 
 It is not necessary to lay any day certain upon which the plaintiff 
 entered ; it is sufficient to lay a demise after the title accrues, and 
 
 (a) Esp. N. p. 444. Run. Eject. ai4. x Burr. 199. (6) Esp. N. P. 444. I Sid. 7. 
 
 (f) Run. Eject. 215. Cowp. 714. (</) 4T. R. 681. (<■) 3 Wils 274. 
 
 (/) Bull N. P. 105. (s) 3 Camp. 447.
 
 366 When Ejectment lies, and the [Chap. XIV. 
 
 then say in genera! " that he afterwards entered/' &c. for so are the 
 precedents [a). 
 
 The declaration should state the ejectment by the defendant to have 
 been done subsequent to the date of the supposed lease made to him 
 by the lessor of the plaintiff; for otherwise the ejectnient, which is 
 the injury complained of, would precede the lime at which the plain- 
 tiff's title accrued, so that there could be no cause of action. 
 
 But though such be the proper form of declaring, yet this being a 
 fictitious action, it is not fatal if laid otherwise; for in cases that have 
 occurred where the ejectment was laid prior in point of time to the 
 demise, yet the Court held it good (b\ 
 
 Thus, in ejectment the plaintiff declared upon a lease, dated ist 
 February 1 742, to hold from the 8th of Jatiuar'<)\)eioxQ^ that after- 
 wards viz. 28th January I 7 42, the defendants ejected him. — It was 
 insisted for the defendants, that the ejectment was laid to be before 
 the plaintiff's title under the lease, which was not made till ist 
 February^ and I ^'id. 7. was cited ; but it was holden, that the day of 
 the ejectment being laid under a •viz. was surplusage, and that "after- 
 wards" should relate to the time of making the lease, and then all 
 ■would be-well enough, and the plaintiff had a verdict (r). 
 
 For the plaintiff need not mention in his declaration any particular 
 day of the ouster, provided it appears to be subsequent to the term 
 commenced, and before the action be brought; though in the prece- 
 dents a day certain is always laid {d). 
 
 In the case of an ejectment to avoid a fine, however, an actual 
 entry is necessary : and the plaintiff" cannot lay his demise, or recover 
 the mesne profits before such entry [e). 
 
 The declaration should also state, as has been before observed, both 
 the quantity and the nature of the land to be recovered. 
 
 In like manner, where the ejectment was for five closes of arable 
 
 and meadow, called containing twenty acres in D. upon not 
 
 guilty pleaded, and verdict for the plaintiff, judgment was arrested, 
 because it was not shewn how much there was of one, and how much 
 of the other (/). 
 
 But the plaintiff need not declare for the exact quantity whicli he 
 has a right to recover, for he may declare for any indeterminate 
 quantity, as " one thousand acres of pasture," " one thousand acres 
 of arable," ^c. and he shall recover according to the quantity to 
 which he proves title. 
 
 Therefore where the plaintiff declared in ejectment of one hundred 
 acres of lands, and shewed his lease in evidence only for forty acres ; 
 and it was said that he had failed of his lease, for there was none 
 
 {a) F.ip.N. P. 445- (*) Cro*Jac.96. (^ Bull. N. V. 106. 
 
 {d) Cro. Jac. 311. (r) 7 T. R. 727. (/) Salk. 254.
 
 Sect. I.] Proceedings therein at Common Law. 367 
 
 such as that of which he counted ; yet it was ruled to be good for so 
 much as was comprised in the lease, and that for the residue, the 
 jury might find the defendant not guilty (a). 
 
 So, if the plaintiff proves a title to but a moiety of that for which 
 he declares, he shall only recover such half : as where he declared for 
 a house, and proof went to shew that only part of it was built on the 
 plaintiff's land by encroachment, he recovered so much as was built 
 on his land [b). 
 
 But though part may be recovered on a demand for the whole, the 
 reverse will not hold ; for if the plaintiff prove more than he has de- 
 clared for he shall not recover it, for he can recover no more than he 
 goes for in his declaration (c). 
 
 But as to the plaintiff's title, he shall recover according to what it 
 really is, though he declare for a longer term than he has a right to 
 recover. 
 
 Therefore, where the lease declared upon was from the 25th of 
 March 1765 for seven years, the plaintiff proved that y. S. was 
 seised, and that by indenture in 1763 he demised the premises in 
 question to D, for seven years, to commence at Alidsummer 1763, 
 and that in 1647 ^- assigned the residue of the term then unexpired 
 to Carruthers. It was insisted for the defendant, that though in 
 ejectment ihe lease is fictitious, yet the plaintiff must declare on 
 such a lease as suits with the title of his lessor ; here if he recover at 
 all, he must recover a term which is of two years longer duration 
 than his title. But per Lord Mansfield there is nothing in the ob- 
 jection, for if the lessor have a title, though but for a week, he ought 
 to recover j for the true question in ejectment is, who has the pos- 
 sessory right. — Suppose a person has an interest for three years only, 
 and should make a lease for five years, it would be good for the three 
 years [d). 
 
 A declaration in ejectment contained two demises by two different 
 lessors of two distinct undivided thirds ; judgment was given against 
 the plaintiff to recover his said terms. On error it appeared from the 
 facts stated on a bill of exceptions to the judges directions on a point 
 of law, that the ejectment respected only one undivided third : held 
 well enough on this record, where the point was only raised by bill 
 of exceptions. Setnble that it would have been well even in a special 
 verdict [e). 
 
 Where the title is in several persons, v/ho are severally concerned 
 m interest, it is usual to declare by several distinct counts, upon 
 several demises; therefore when a term is limited to trustees for se- 
 curing the payment of an annuity, or portions, ^c. though the trus- 
 tees seldom act, yet it is usual to declare upon their demise, and also 
 
 (<i) Cro. Eliz. 12. (b) I Lev. 334. (c) i Burr. 330. ((/) Bedford (Lessee of Carruther,) 
 V. Dendein, Sit. at Middlesex after T.T. 5 G. 3. Bull. N.P. 106. (<')aBos.& Pull. N. R. a.
 
 368 When Ejectment lies, ayid the [Chap. XIV. 
 
 upon the demise of the cestuique trust. By this means in such and 
 similar cases, the plaintiff is not confined to one demise, but may 
 resort to any other which he has stated, and under which he may be 
 able to prove a title : and where several demises are apparently incon- 
 sistent, the Court, to assist the title of the lessor of the plaintiff, 
 would perhaps permit him to enter a non-pros^ as to all the demises 
 but that which he can legally sustain : and after verdict, if by any 
 means the plaintiff can be supposed to have title, as stated in the de- 
 claration, the Court will support it {a). 
 
 If the declaration states the demise to the plaintiff to be of more 
 lessors than one, it must appear that each lessor had a title to the 
 whole of the land or premises demised, or it will be bad ; for if 
 one of them has not an interest in the whole, he cannot be said to 
 demise it {h). 
 
 Therefore, where the plaintiff declared in ejectment on a lease 
 made by A. and B. and on not guilty pleaded, the jury found a 
 special verdict. That A. was tenant for life of the lands in question, 
 and that B. had the remainder in fee, and that A. was living ; on this 
 finding, it was adjudged against the plaintiff; for it was not the lease 
 of A. and B. but the lease of A. during his life, and the confirma- 
 tion of B [c). 
 
 So, an ejectment cannot be maintained on a joint-lease by tenants 
 in common ; for, as they are in by several titles, the freehold is 
 several, and consequently each cannot demise the whole. There 
 should therefore be a distinct count on the demise of each, or they 
 may join in a lease to a third person, and such person may make a 
 lease to try the title {d). 
 
 But joint-tenants may join in a lease to try the title : for being 
 seised per my et per touty each has title to the whole, wherefore the 
 demise of each is good [e). 
 
 For the same reason, coparceners, it has been held, may join in a 
 lease to the plaintiff in ejectment, tamen qutzre de hoc {f)s for where 
 in ejectment the plaintiff declared of a lease, by two coparceners, 
 quod detniserunty exception being taken to it, the exception was al- 
 lowed, because the lease was several as to each coparcener for her 
 respective moiety ; for though they have but one freehold with regard 
 to their ancestor, and therefore if they are disseised shall join in an 
 assise, yet as to their disposing power thereof they have several rights 
 and interests, so that neither of them can lease or give away the 
 whole. — The usual mode, however, is to join in a lease to a third 
 person who demises to the plaintiff; for a demise of all the parts is a 
 demise of the whole (g). 
 
 {a) Run. r.jfct. an. I Wils. I. aStr. 908. 1180. 5 T. R. 15. (i) Eip. N. P. 448. 
 
 (t) Ibid. 6 Co. 14. b, (d) Cro. Jac. 166. Co. Lilt. aoo. a. a Wils. aja. (e) % Str. Ii8l. 
 (/) I Ld. R.Tym. 7a6. (_f) Bar. on Lea. 194. 
 
 I
 
 Sect. I.] Proceedings therein at Common Laxv. 369 
 
 In ejectment on the several demises of two persons, although the 
 evidence shews the title to be exclusively in one of them, the other 
 cannot be compelled to be examined as a witness for the defend- 
 ant {a). 
 
 In ejectment on the several demises of three persons, each demise 
 being of the whole, the lessors of the plaintiff are entitled to a ver- 
 dict, upon evidence that they jointly granted a lease to the defendant, 
 which has expired {b). 
 
 If four tenants in common jointly demise from year to year, such 
 of them as give notice to quit may recover their several moieties in 
 ejectment, on their several demises [c). 
 
 The plaintiff in ejectment, under the several demises of two, may, 
 after notice to quit, recover the possession of premises held by the 
 defendant as tenant from year to year, upon evidence that the com- 
 mon agent of the two had received the rent from the tenant, which 
 was stated in the receipts to be due to the two lessors j even assum- 
 ing such receipts to be evidence of a joint-tenancy ; for a several 
 demise severs a joint-tenancy : and supposing the contract with 
 the tenant to have been entire, no objection lies on that account to 
 the plaintiff's recovery in this case, as he had the whole title in 
 him [d). 
 
 In ejectment brought upon the joint demise of several trustees of a 
 charity, it is not enough for the defendant, who had paid one entire 
 rent to the common clerk of the trustees, to shew that the trustees 
 were appointed at different times, as evidence that they were tenants 
 in common : for as against their tenant, his payment of the entire 
 rent to the common agent of all, is at all events sufficient to support 
 the joint demise, without making it necessary for them to shew their 
 title more precisely [e). 
 
 When the ancient practice prevailed, it seems to have been holden, 
 that a copyholder could not maintain an ejectment, upon a demise 
 for a longer term than a year, unless the licence of the lord were 
 first obtained, or a special custom existed in the manor enabling him 
 to make longer leases: and in some authorities, it is even doubted 
 whether an ejectment can in any case be supported by a copyholder. 
 But since the introduction of the modern practice these objections 
 are wholly obviated, and a copyholder may declare upon a demise 
 of any number of years {f). 
 
 Of amending the Declaration, 
 
 It is a rule both in the Court of King's Bench, and that of the 
 Common Pleas, that no declaration in ejectment can be amended be- 
 
 (<r) 3 Campb. 177. (i) Ibid. 190. («) 3 Taunt. R. lio. 
 
 (</) la East's R. 57. (0 Ibid. Xii. (/) CrcEliz. 483. Ibid. 53J. 
 
 Ibid. 676. Owen, 17. i J.ut. 799, 803,
 
 570 Jllien EJeclment lies, and the [Chap. XIV. 
 
 fore appearance, and that after appearance it can only be amended in 
 form, not in matter of substance {a). 
 
 But amendments are now carried further than formerly, and that 
 which used to be deemed substance, (as the demise, ^c.) is now held 
 matter of form, and amendable {b). 
 
 Thus, where the ejectment was to avoid a fine, and the demise 
 was laid before the plaintiff had made the entry, instead of after, it 
 was, on motion, ordered to be amended ; Lord Mansfield observing 
 that demise was mere matter of form, and did not exist (r). 
 
 So, if the term demised to the plaintiff is expired, or likely to ex- 
 pire, before trial, the Court will now upon motion to amend, enlarge 
 it upon payment of costs. So, the term was ordered to be enlarged, 
 after it had expired twelve years; though the cause was at issue, 
 and special jury struck, and the parties gone down to trial, before 
 the mistake was discovered. For an ejectment is the creature of the 
 Court, and open to every equitable regulation for expediting the true 
 justice of the case {d). 
 
 But if the fault go to the title, or is in the process, it is not 
 amendable [e). 
 
 As where in the declaration delivered to the tenant in possession, 
 the said " James" instead of " John,'" was said to enter by virtue of 
 the demise, the Court refused to amend it, for they considered it as 
 process : and Justice IVright cited a case, where the premises were 
 laid to lie, *' in Tiuicketiham or Islezvortht or one of them," and the 
 Court refused to let the plaintiff amend, by striking out the disjunc- 
 tive words. 
 
 Yet in a latter case, an amendment has been made in the parcels 
 and in the name of the plaintiff for the defendant (/). 
 
 Of Service of the Declaration, Affidavits thereof ^c. 
 
 The service of the declaration must take place before the essoign 
 day of the term in which the tenant has notice to appear. 
 
 The declaration being considered as process to bring in the tenant, 
 must therefore be personally served upon him, if it be known where 
 he lives, and liis residence be not on the premises for which the eject- 
 ment is brought. For service on the person in possession will not 
 suffice, if it do not appear that he is tenant. 
 
 When two or more tenants are in possession of different parts of 
 the premises, a declaration in ejectment must be served upon each of 
 them. 
 
 Service upon the wife of the tenant in possession will be good ser- 
 vice, provided it be made upon the premises, or at the husband's 
 
 {a) a Srll. I'raci. aa8. (*) Ibid. («) 4 Burr. 2447. 
 
 (i/) 2 Bl. R. 940. Cowp. H4T. (<; z Str. I3II. (/) % Stll. Pr«ct. 3i8. 
 
 s
 
 Sect. I.] Proceedings therein at Common Laic. 371 
 
 house elsewhere, or if it appear by the affidavit of service that the 
 husband and wife were, living together at the time [a). 
 
 So also service upon the child or servant of the tenant will be suffi- 
 cient provided it appear in the affidavit, that the tenant has acknow- 
 ledged himself to have received such declaration, or to have known of 
 the service thereof previously to the essoign day of the term {b). 
 
 When two tenants are in possession of the same premises, service 
 upon one (r) of them will be good service upon both, but service 
 upon the wife of one of two tenants in possession will not bind the 
 co-tenant. 
 
 Thus upon cause being shewn to set aside proceedings, on the 
 ground that J. G. had not been served with a declaration in eject- 
 ment, an affidavit was produced shewing that a declaration had been 
 served on the premises on Elizabeth the wife of H. G., and it was 
 contended that such service was sufficient, though both J. and H. G.\ 
 were tenants in possession ; particularly as it appeared that j. G. was 
 in the house at the time : the Court said, that the service was cer- 
 tainly good against H. but that it was defective against J. as those 
 steps had not been taken which were necessary to supply a personal 
 service on J. and that the judgment, therefore, as far as it affi^cted 
 y. must be set aside. The counsel against the rule then said, the 
 plaintiffs must continue in possession of one moiety, and recover 
 against H. G. quod f nit concessum by the Court; the counsel on the 
 opposite side observing that the other defendant 7. must be restored 
 to the possession of the moiety taken from him {d). 
 
 A motion was made, that service on ^. might be deemed good ser- 
 vice of the declaration on the tenant under these circumstances. The 
 premises consisted of a mansion and four small houses in a yard, sur- 
 rounded by a wall, through which was a door to them, forming the 
 only means of access; in one of which small houses resided A. who 
 was permitted to live there merely to take care of them and of the 
 mansion-house ; the rest of the messuages were vacant. The Court 
 refused the present motion, and recommended the plaintiff to affix a 
 declaration on the empty houses, and then to move that it be deemed 
 good service (f). 
 
 Service of a declaration in ejectment by nailing it on the barn door 
 of the premises, in which barn the tenant had occasionally slept, 
 there being no dwelling-house, and the tenant not being to be found 
 at his last place of abode, was allowed to be good service (/"). 
 
 If the tenant abscond, it is usual to serve the declaration on some 
 person residing at his house ; and if that cannot be done, to affix the 
 same upon the door ; and then, on an affidavit of the circumstances, 
 
 («) 2 B. & P. S5' Black. R. 800. 6 T. R. 765. i N. R. 308. (I) 14 East, 441. 
 
 (c) I B. & P. 369. (d) Doe V. Godlin. EastT. 40 G. 3. K. B. T.'s MSS. 
 
 (/) Accor. I Tidd's Pract. 443. (/) i Bos. & Full. N. R. 293. 
 
 Bb2
 
 fn2 JVfwn Ejectment lies, and the [Chap. XIV 
 
 to move the Court for a rule upon the tenant to shew cause why such 
 service should not be deemed good service, upon which the Court will 
 prescribe the mode of serving the rule, which is generally made abso- 
 lute upon affidavit of its service. 
 
 Thus, in such case, upon service on the tenant's niece, who was the 
 only manager of his house and resident in it, and fixing up another 
 copy on the premises, the Court made a rule to shew cause why 
 judgment should not be entered up against the casual ejector; and 
 further ordered, that notice of such rule to any person in the house 
 should be sufficient, and that if no person were in the house, it 
 should then be affixed to the door of the house (a). 
 
 So, where the tenant in possession was personated at the time of 
 the service by another who accepted the service in her name, the Court 
 made a rule to shew cause, why this should not be deemed good ser- 
 vice upon the tenant herself, and why judgment should not be signed 
 against the casual ejector, on default of her appearing : and that leav- 
 ing a copy of this rule at her house with some person there, or, if no 
 one was to be met with, affixing it on the door, should be good service 
 of it. This rule was made absolute upon an affidavit »' that the tenant 
 was either not at home, or, if at home, was denied i and that her ser- 
 vant maid was at home, but could not be served ; whereupon a copy 
 of the rule was affixed on the door of the house :" and moreover " that 
 at a subsequent day," upon a doubt whether what had been already 
 done was sufficient, " the maid being at home and opening the 
 window, but refusing to open the door, and denying that her mistress 
 was at home, another copy was affixed to the door, and the maid was 
 told the effect of it ; and another copy was thrown in at the window, 
 and the original rule was shewn to the maid [h)." 
 
 Such rules will be granted with a retrospect : for a like rule to shew 
 cause why a preceding service of an ejectment upon a servant in the 
 house of one Hawkins^ tenant in possession, should not be deemed 
 good service of it, was made on the second day of the term, on its 
 appearing that Hawkins and his wife both kept out of the way to 
 prevent their being personally served. The rule was made with a 
 retrospect, in order that the plaintiff might not lose the assizes (c). 
 
 So, in another case, a rule was granted and afterwards made abso- 
 lute, that service of a declaration in ejectment at the house of a tenant 
 in possession, on a day past, might be good service •, and that service 
 of the first rule at the house of the said tenant, should be good 
 service {il). 
 
 But where cause being shewn against a rule for good service of the 
 declaration in ejectment, it appeared that the declaration was tendered 
 on the i8th, but that the defendant's servant said that he had orders 
 
 (*) Bar. iy2. 1 turr, iii6. » Ibid. 1182. (t; Ibid, in Mai;;. 1 151. R. ■390, ?. c 
 
 [J) I 6J. R. 317.
 
 Sect. I.] Proceedings therein at Common Latv. 373 
 
 not tcx receive any such thing, whereupon it was not served on that 
 day, but was left at the house on the day following ; notwithstanding 
 that the defendant knew of the intention to serve him, the Court said, 
 ** You should have left the declaration on the i8th. We sometimes 
 by rule make that service, under particular circumstances, good, which 
 otherwise would have been imperfect ; but here there was no service 
 on the proper day; and we cannot antedate the service." Rule dis- 
 charged (a). 
 
 Leaving the ejectment at the house, was ruled to be sufficient ser- 
 vice, it appearing that the servant had refused to receive it, having 
 been ordered by his master not to take in any papers (^). — But where 
 it appeared that service was made upon the defendant's son, who ac- 
 cepted it, and said that he knew what it was for, and would deliver 
 it over to his father ; and both father and son were attornies ; the 
 Court notwithstanding held the service insufficient, and said, it had 
 been often ruled so (c). 
 
 But tender of the declaration, and reading the notice aloud, though 
 the tenant refused to receive it *, or runs away and shuts the door ; or 
 threatens with a gun to shoot the person serving it if he came near, 
 have been held good service upon application to the Court, who act 
 discretionally in this matter, according to the exigency of the case (d). 
 A declaration served on the churchwardens and overseers of a 
 parish, who rented a house for harbouring some of the parish poor, 
 and did not otherwise occupy the house than by placing the poor in 
 it, was deemed sufficient service, and a rule made for judgment (i^). 
 
 So, in ejectment for a chapel, if service of the declaration be made 
 on the chapel wardens, or on the person entrusted with the keys of 
 the chapel, it will be sufficient. 
 
 On affidavit that one of the tenants was a lunatic, and that one C. 
 lived with her, transacted her business, and had the sole conduct there- 
 of, and of her person, but would not permit the deponent to have 
 access to her, in order to serve her with the declaration, whereupon 
 he delivered it to the said C. : a rule was made for the lunatic and C. 
 both to shew cause, why such service should not be good and that ser- 
 vice of such rule on the said C. be good (f). 
 
 If there be several tenants in possession, the plaintiff, it has been 
 said, must deliver a declaration to each of them ; but where the name 
 of each was prefixed to the notice served on him, it was held that one 
 rule only was necessary on motion for judgment against the casual 
 ejector (•^). However, in a latter case, it seems that service of one 
 of two tenants in possession has been good service on both (h). 
 
 Affidavit of Service.—The declaration having been dehvered, the 
 
 (a) T.'s MSS. H. T. 41 G- 3- (=) i Str. S7S- (0 T.'s MSS. T. T. 41 C,. 3. 
 
 (d) Sell. Pract. 175. (e) Ibid. 174. Barnes, 181. (/) Sell. Pract. 174. Bar. 190. 
 
 (g) Bull. N. P. 98. (h) 1 JBos. & Full. 369.
 
 374 ' When Ejectment lies, (md the [Chap. XIV. 
 
 person who delivered it must make affidavit (except in the case of 
 vacant possession) that he delivered to the tenant or his wife, l^fc a 
 true copy of the declaration, and read or explained to him the notice 
 annexed thereto. If a declaration was served on the child or servant 
 of the tenant, the affidavit must state further, " that the service was 
 afterwards and before the essoign day of the term acknowledged by 
 the tenant." — The affidavit must be positive, namely, that A. B. was 
 tenant in possession, or that he acknowledged himself to be so : 
 because no one should be evicted from possession without a positive 
 affidavit, on which, if it be false, the person who made it may be 
 legally and effectually subjected to the penalties of perjury (o). 
 
 Affidavit of service on A. B, tenant in possession, or C his wife, is 
 not sufficiently certain as to either {b). 
 
 So, service on the wives of A. and B. who, or one of them are 
 tenants, was held not good (c). 
 
 The reason why it is necessary to state in the affidavit that the ser- 
 vice was on the wife at the husband's housCj is to shew that they were 
 living together as man and wife, and that by such service, the hus- 
 band may have notice of the proceedings : but the declaration may be 
 served on the wife either on the premises or at the husband's house (d). 
 
 When several tenants have been served with copies of the declara- 
 tion, if it is meant but as one ejectment and to be followed by one 
 judgment, one affidavit of the service of all is sufficient, annexed to 
 the copy of one declaration. But if the ejectments are made several, 
 so as to have separate judgments, writs of possession, ^c. then an 
 affidavit must be annexed to separate copies of the ejectment of the 
 service separately (^). 
 
 Moving for Judgment. — Upon the affidavit of service (which affi- 
 davit may be made by the party who served the declaration, or by 
 any one who was present and saw it served) •, the plaintiff moves for 
 judgment against the casual ejector, which is always granted, unless 
 the tenant in due time enter into the common rule to confess lease, 
 entry, and ouster (/). This motion for judgment is a side bar rule, 
 but where there is any thing in the service of the declaration out of 
 the common way, it should be mentioned to the Court, and where 
 the affidavit of service is defective, the Court of King's Bench will 
 give leave to file a supplemental affidavit [g). 
 
 Although judgment against the casual ejector be signed, yet if no 
 possession is given, or trial lost, it may, on an affidavit of merits and 
 payment of costs, be set aside (^). 
 
 In the King's Bench, if the premises are situate in London or 
 Midd/escMf and the notice requires the tenant to appear on the first 
 
 (a) 7 T, R. 477. 1 I.il. Pr. Reg. 499- Ru"- Fjcct. ijS. (b) Bar. 173. 
 
 (f) Ibid. 174. (d) I Tidd's Pract. 44:?. (0 t Sell. Pract. 178. 
 
 (/) Bos. 4: Pull. IJC. <^) 3 Tidd's Puct. 444- (^; iJcU. PiacU i/S-
 
 Sect. I.] Proceedings therein at Common Laxv, 375 
 
 day, or within the first four days of the next term, the plaintiff 
 should regularly move for judgment against the casual ejector in the 
 beginning of that term : and then the tetjant must appear within four 
 days inclusive after the motion, or the plaintiff will be entitled to 
 judgment. If however the motion be deferred till the latter end of 
 the term, the Court will order the tenant to appear in two or three 
 days, and sometimes immediately, that the plaintiff may proceed to 
 trial at the sittings after term ; though if the motion be not made 
 before the last four days of the term, the tenant need not appear 
 until two days before the essoign day of the subsequent term : and 
 should the notice in such case require the tenant to appear in the next 
 term generally, the tenant has the whole of that term to appear 
 in (a). 
 
 In the Common Pleas, if the premises are situate in London or 
 Middlesex, and the tenant has notice to appear in the beginning of 
 the term, the plaintiff cannot take any thing by his motion for judg- 
 ment against the casual ejector for default of appearance, unless such 
 motion be made within one week next after the first day of every 
 Michaelmas and Easter terms, and within four days next after the first 
 day of every Hilary and Trinity terms. — But it has been holden that 
 this rule does not extend to the case of a vacant possession, under the 
 Stat, a G. 2. {h) 
 
 In country causes, though the declaration be delivered before the 
 essoign day of Easter or Michaelmas term, yet the tenant, in both 
 Courts, is allowed till four days after the next issuable (that is, Hilary 
 or Trinity) term to appear ; and if tlie cause arise in Cumberlandy or 
 any other county where the assizes are held but once a year, the 
 tenant need not appear till four days after the term preceding the 
 assizes. — But in the King's Bench the plaintiff must move for judg- 
 ment the same term in which the tenant has notice to appear : 
 though the practice is different in the Common Pleas, for there he 
 may move for judgment at any time during the next Issuable term (r). 
 By a late rule of the Court of King's Bench, the clerk of the rules 
 is to keep a book, in which is to be entered all the rules which shall 
 be delivered out in ejectments, instead of that formerly kept which 
 contained a list of the ejectments moved. The entry is to specify the 
 number of the entry ; the county in which the premises lie ; the name 
 of the nominal plaintiff; the first lessor of the plaintiff, (with the 
 words " and others," if more than one,) and also the name of the 
 casual ejector: and unless the rule for judgment be drawn up and 
 taken away from the office of such clerk within two days after the end 
 of the term in which the ejectment shall be moved, no rule is to be 
 drawn up or entered, nor any proceedings had in such ejectment. 
 
 {a) Run. Eject. 165. {h) Ibid. (0 Ibid. 166.
 
 376 JVho may defejid [Chap. XIV, 
 
 By Stat. II G. 2. c. 19, the tenant must give notice to his landlord 
 of any declaration in ejectment being delivered, under pain of forfeit- 
 ing three years' improved or rack-rent of the premises so had' and en- 
 joyed by the tenant. 
 
 A tenant to a mortgagor who does not give him notice of an eject- 
 ment brought by the mortgagee, to enforce an attornment, is not 
 liable to the penalties of this statute : for the Act expressly permits 
 an ejectment to be brought for such purpose ; and extends only to 
 cases where ejectments are brought which are inconsistent with the 
 landlord's title (a). 
 
 But where the tenant had not given notice to his landlord of the 
 ejectment, and there was judgment against the casual ejector, the 
 Court set aside the judgment and ordered the tenant to pay all the 
 costs to the lessor of the plaintiff on the landlord's entering into the 
 usual rule to try the title (3). Or the landlord may bring a writ of 
 error, which operates as a supersedeas of the proceedings under the 
 statute, and thereby stay execution (f). 
 
 Section II. JV/to may defend the Action of Ejectmeiit, S^c, 
 
 The Tenant. — The tenant in possession must apply to the Court to 
 be made defendant in the room of the casual ejector. This is done on 
 condition that he confesses lease, entry, and ouster. 
 
 By the common law, no person is permitted to defend in eject- 
 ment, unless he be tenant, and is or hath been in possession, or 
 receipt of the rent ; for, besides that it was champerty for any person 
 to interpose and cover the possession with his title if the party would 
 make any person defendant with another, who was not concerned in 
 the possession of the tenements, it was a mischief at the common law, 
 because if the plaintiff recover against one of the defendants, the 
 stranger had no remedy for his costs ; but this is remedied by 8 ^ 9 
 W. 3. c. 10. whereby costs are given to such strangers, unless the 
 Judge certifies, immediately on the trial, that the party had probable 
 cause for making him defendant. 
 
 Moreover, as the tenant in possession could not be compelled to 
 appear and enter into the common rule to become defendant instead 
 of the casual ejector ; so neither could the landlord alone, without 
 joining with the tenant, enter into such rule, and be made sole de- 
 fendant. 
 
 The Landlord. — To remedy this inconvenience, by stat. 11 G. 2. c. 
 ig. s. 13. it is enacted, That it may be lawful for the Court, where 
 such ejectment bhall be brought, to suffer the landlord to make him- 
 
 ■>) 1 1'. R. .(6/. {h) 4 Bun. \y)(t. (0 % Sir. Jl^i.
 
 Sect. II.] the Action of Ejectment ; <^r. sfj 
 
 self defendant} by joining with the tenant, in case he should appear : 
 but in case such tenant shall neglect or refuse to appear, judgment 
 shall be signed against the casual ejector, for want of such appear- 
 ance : but if the landlord, iffc. of any part of the lands, i5'c. for 
 which such ejectment was brought, shall desire to appear by himself, 
 and consent to enter into the like rule, that by the course of the Court, 
 the tenant in possession in case he or she had appeared, ought to have 
 done j then the Court, where such ejectment shall be brought, shall 
 and may permit such landlord so to do ; and order a stay of execu- 
 tion upon such judgment against the casual ejector, until they shall 
 make further order therein. 
 
 The landlord's right to be joined in defending the premises is af- 
 firmed by this statute, for he had such right before : and it is op- 
 tional in him to be made defendant or not, for the Court cannot com- 
 pel him (a). 
 
 The Court, however, has no jurisdiction, it seems, to admit any 
 person to defend instead of the tenant, but the landlord. In the con- 
 struction, however, of the statute, the word *' landlord" is extended 
 to all claiming title consistent with the possession of the occupier, for 
 it need not be the actual landlord, but it is sufficient if he have an 
 interest only in the land. A purchaser, therefore, of a reversion, 
 which appeared to be a pretended title, and where no rent had ever 
 been paid, was held to be admissible as a defendant. So, it should 
 seem, a mortgagee out of possession may now be admitted to defend, 
 on the tenant's refusal. But a devisee (cestui que trust) out of posses- 
 sion is not deemed a landlord within the meaning of the act : for upon 
 a motion to permit certain devisees to defend instead of the tenant, it 
 was opposed on the ground that the devisees had never been in pos- 
 session, and could not, therefore, be considered as landlords under 1 1 
 G. 2. c. 19. s. 13. ; and Lord Kenyon said. If the person requiring to 
 be made defendant under the act, had stood in the situation of imme- 
 diate heir to the person last seised, or had been in the relation of re- 
 mainder-man under the same title as the original landlord, I am of 
 opinion that he might have been permitted to defend as a landlord by 
 virtue of the directions of the statute ; but here, the very question in 
 dispute, between the adverse party and himself, is. Whether he is en- 
 titled to be landlord or not : we, therefore, are not authorized to ex- 
 tend the provision of the statute to such a case as this (b). As to the 
 case mentioned, it appears to have been done by consent.— A devisee 
 in trust, however, may defend as landlord. So, an heir who had never 
 been in possession. So, the heir at law or remainder-man under the 
 same title (<:). 
 
 {a) Salk. ZJ7. {h) 3 T. R. 713. {c) 3 Burr. 1490. 4 T. R. lax.
 
 4P 
 
 S78 Who may defend [Chap. XIV. 
 
 So, if an ejectment be brought by one claiming as heir of a copy- 
 hold, and the lord of a manor, who claims by escheat /^-o defedu he- 
 redisj applies to be admitted defendant either with the tenant or alone, 
 the Court will direct the lord to bring this action against the heir, and 
 the heir will be admitted to defend. If the lord refuses, they wili 
 discharge his rule to be admitted ; if the heir refuses, they will admit 
 the lord to defend (a). 
 
 On the landlord being made a defendant under 1 1 G.i. c. 19, on 
 non-appearance of the tenant, the Court will stay execution against 
 the casual ejector. 
 
 But where the landlord is permitted ta defend without the tenant, 
 judgment is always first signed against the casual ejector j the reason 
 of which is that, under it, the plaintiff, if he obtain a verdict, may get 
 possession of the premises sued for, which he could not do by virtue 
 of a judgment against a person out of possession {b). 
 
 As to the time when the landlord may be admitted defendant, a 
 case occurred. In which judgment had been regularly obtained against 
 the casual ejector by default : — the. landlord of the premises moved to 
 set it aside, because his tenant had not given him any notice of his 
 having been served with the declaration in ejectment. The plaintiff 
 insisted that his judgment was perfectly regular; and that the tenant's 
 omitting to give his landlord notice of the declaration being delivered 
 was merely a matter between the landlord and his tenant, which could 
 not affect the plaintiff's regular judgment, which had been fairly and 
 duly obtained. The Court, however, were clearly of opinion that the 
 possession ought not to be changed by a judgment in ejectment where 
 there had been no trial or opportunity of trying ; for the obtaining 
 judgment might be owing to the default, or even treachery of the de- 
 fendant's own tenant. But if the plaintiff had not been guilty of any 
 collusion with the tenant, they thought it reasonable that the tenant, 
 who was the person guilty of the default, should pay the costs : for 
 the rule of the Court, which requires service upon the tenant in pos- 
 session, is calculated with a view that the tenant should give notice to 
 his landlord, in order that the ejectment cause might be tried between 
 the proper parties interested in the question [c). 
 
 If judgment be signed, it is too late for the landlord to be made 
 defendant. But the landlord may be let in after judgment when 
 signed in consequence of the tenant's not giving notice {cl). 
 
 But in no event will the Court endure that a lessee defend alone 
 against his landlord, or those who claim under him, on a supposed 
 defect of title {e). 
 
 Where a landlord defrayed the cost of defending an ejectment in 
 
 (<»; 3 Burr. 1290. {b) % Sell. Pract. 186. {c) 4 Burr. 1996. (</) a Sell. Pract.187. 
 
 (<r) a Black. R. 1159.
 
 Sect. II.] the Aclion of Ejectment ; S^-c. S79^ 
 
 the name of an illiterate tenant, who gave a retraxit of the plea, and 
 cognovit of the action, the Court set aside the retraxit and cognovity and 
 permitted the lessor to defend as landlord (a). 
 
 A third Person, — In all cases, if the person who wishes to defend 
 be neither tenant nor actual landlord, but has some interest to sus- 
 tain, he must move the Court, on an affidavit of the fact, to be made 
 a defendant, instead of, or with, the casual ejector ; and the tenant's 
 consent is not now necessary (^). 
 
 Where a third person was admitted to defend as landlord, he was 
 not allowed, upon the trial of the ejectment, to give evidence of his 
 title, it appearing that the tenant in possession came .in as tenant to 
 the lessor of the plaintiff, and paid rent to him under an agreement 
 which had expired (r). 
 
 If a material witness for the defendant be also made a defendant, 
 the right way is for him to let judgment go by default ; but if he 
 plead, and by that means admit himself to be tenant in possession, the 
 Court will not afterwards upon motion strike out his name. In such 
 cases, however, if he consent to let a verdict be given against him 
 for as much as he is proved to be in possession of, no reason appears 
 why he should not be a witness for another defendant {d). 
 
 Consolidation Rule. — ^Where there are several defendants, to whom 
 the plaintiff delivers declarations, who are severally concerned in in- 
 terest, and the plaintiff moves to join them all in one declaration, yet 
 the Court will not do it, but the plaintiff must deliver several decla- 
 rations to each of them ; because each defendant must have a remedy 
 for his costs, which he could not have if they were joined in one de- 
 claration, and the plaintiff prevailed only against one of them : and by 
 this means the plaintiff might have a tenant of his own defendant with 
 others, in order to save the costs [e). 
 
 But where several ejectments are brought for the same premises, 
 upon the same demise, the Court on motion, or a Judge at his cham- 
 bers, will order them to be consolidated : the motion is for rule to 
 shew cause (y). 
 
 Appearance. — The appearance, therefore, may be either by the te- 
 nant himself (as when he is in possession of his own estate, or agrees 
 with his landlord to defend the action, or it is an ejectment by the 
 landlord against his tenant or the like), or it may be by the tenant and 
 the landlord jointly, or if the tenant refuses, it may be by the landlord 
 alone. 
 
 The appearance in all the above cases is effected in the same man- 
 ner, except only that in the tv/o last, counsel's signature must be got 
 to a motion, which Is of course, to admit the landlord to defend either 
 with the tenant, or by himself if he refuses to appear, and a rule got 
 
 (tf) 7 Taunt. 9. {U) a Black. R. 185. (t) 4 M. & S. 347. {d) Bull. N. P. 98. 
 (0 Run. Eject. 187. {/) Ibid.
 
 S80 PPlio may defend [Chap. XIV. 
 
 from the clerk of the rules accordingly («). Also, if the tenant re- 
 fuse to appear, an affidavit of such refusal should be made ; for the 
 tenant is not obliged to appear in ejectment, though the landlord is 
 ready to indemnify him, JSor can an attorney, by order of the land- 
 lord, appear for the tenant : such appearance and plea would be ir- 
 regular, and ordered to be withdrawn {b). 
 
 The appearance in this action should be entered of the terra men- 
 tioned in the notice ; and where the notice to appear was in Hilaryy 
 and the tenant entered an appearance in Michaelmas following, and 
 did nothing farther, and the plaintiff, finding no appearance of Hilaryy 
 and no common rule entered into or pleaded, signed judgment against 
 the casual ejector, the Court held it regular; but afterwards set it 
 aside to try the merits {c). 
 
 Touching the common or consent rule, it should be remembered 
 that judgment against the casual ejector is always granted, unless the 
 tenant in due time (that is, within the time allowed for his appear- 
 ance) enters into the common rule to confess lease, entry, and ouster. 
 But if the tenant or his landlord wishes to defend the action, he must, 
 within that time, constitute an attorney, who will make out the com- 
 mon rule, and leave it, with the general issue, at a Judge's chambers 
 in the King's Bench, or at the Prothonotary's office in the Common 
 Pleas. This rule is in substance nearly the same in both Courts ; 
 and the purport of it is, that the tenant or other defendant shall im- 
 mediately appear, receive a declaration, plead not guilty in a plea of 
 trespass and ejectment for the tenements in question ; and that upon 
 trial of the issue, he shall confess lease, entry, and ouster, and insist 
 upon the title only : the effect of the rule being to bring the matter 
 to the mere question of the plaintiff's possessory title (d). 
 
 In all cases, except that of ejectment brought to avoid a fine, 
 (where there must be an actual entry), the confession of lease, entry, 
 and ouster, is sufficient to bar a nonsuit, for want of proof of actual 
 ouster. It is sufiicient therefore in an ejectment brought for a condi- 
 tion broken ; or by one tenant in common against another. 
 
 The common consent rule is sufficient in all cases except when a 
 fine with proclamations has been levied, when notwithstanding the 
 confession of entry in the rule an actual entry must be proved. 
 
 But if all the proclamations have not been made an actual entry is 
 not necessary [e) ; neither is it necessary when a fine has been levied 
 by a tenant for years {f)^ or by one of two joint-tenants, parceners, 
 or tenants in common, without a previous ouster of his companion (^). 
 So also where one of two tenants in common of a reversion levied si 
 fine of the whole, no actual entry was necessary (/j). 
 
 (a) 2 Sell. Trad. 179. (A) Ibid. 187. {c) \h\i. (^) Run. Eject, tgo. 
 
 (OjEaii, 17. (/J la East, 444. J M. ^ o. 171. (g) l East, 568. 
 
 {b) I B. fc A. 85.
 
 :Sect. II.] the Action of Ejectment ; ^c. S81 
 
 Where the ejectment is brought by a joint-tenant, parcener or te- 
 nant in common, and the defence intended to be relied on is, that 
 there has been no actual ouster ; application must be made to the 
 Court for leave to confess lease and entry only, unless an actual ouster 
 shall be proved j for if a consent rule be entered into in the usual 
 terms, it will supersede the necessity of such proof {a). 
 
 The common rule, being made by assent of both parties, an attach- 
 ment lies for the non-performance of it, as of all other rules of Court 
 that are disobeyed ; and this is all the remedy which the parties on 
 both sides have for their costs {b). 
 
 If there be several persons who claim title, the rule may be drawn 
 either generally or specially : generally, as that A. who claims title to 
 the premises in question in his possession, be admitted defendant for 
 those premises ; which puts a necessity upon the plaintiff to distin- 
 guish, by proof at the trial, what tenements are in each defendant's 
 possession ; because, by the rule, he is only to confess for the premises 
 in his own possession ; and if the plaintiff cannot distinguish, by 
 proof, what tenements are in each defendant's possession, he can have 
 no verdict, consequently no judgment. Or the rule may be drawn 
 specially at the discretion of the defendant : as that-^. who claims title 
 to such and such premises, (expressing them particularly,) be admitted 
 defendant ; which supersedes the necessity of proof that the premises 
 are in his possession. — If the tenant enters into the common rule for 
 so much of the premises as are in his possession, his attorney must, 
 by rule of Court, immediately deliver to the plaintiff's attorney a note 
 in writing thereof, and if the defendant's attorney will not give a note 
 of the particulars of the land for which he was admitted defendant, 
 the plaintiff' may summon him before a Judge, who will order the 
 rule thus specially to be drawn up, in case the party in possession will 
 himself be defendant : but because the defendant's attorney is to 
 draw up the rule, it being entered into by his consent, it is often 
 drawn up in general terms, which puts the plaintiff to proof at the 
 trial (f). 
 
 The lessor of the plaintiff is bound at the trial to prove the defend- 
 ant in possession of the premises which he seeks to recover, notwith- 
 standing that the defendant has entered Into the general consent rule 
 to confess lease, entry, and ouster, if the defendant contest his pos- 
 session {d). 
 
 But now the practice is to insert in the margin of the consent rule, 
 (the premises to be defended, stating that they are part of the premises 
 mentioned in the declaration, which makes the rule special, and 
 
 («) a Taunt. 397. 7 Mod, 39. Burr, 1895. (i) Run. Eject. a02. (;^) Ibid. 303, 
 
 id) 7T.R.317.
 
 382 IVho 7nay (lefaid [Chap. XIV. 
 
 thereby supersedes the necessity, as we have before observed, of the 
 plaintiff proving in whose possession the premises are [a). 
 
 When the appearance is for part, the plaintiff may sign his judg- 
 ment against the casual ejector. 
 
 That the lessor of the plaintiff, however, may the better know what 
 exact part of the premises are defended, the defendant's attorney 
 should give notice to the plaintiff's attorney what the premises are. 
 
 Proceedings when stayed.-^ln certain cases, the Court will stay the 
 proceedings in ejectment, on a motion for a rule to shew cause. 
 
 Thus, where the lessor of the plaintiff is unknown to the defend- 
 ant, the latter may call for an account of his residence or place of 
 abode, from the opposite attorney; and if he refuse to give it, or 
 give in a fictitious account, of a person who cannot be found, the 
 Court will stay the proceedings until security be given for the payment 
 of costs {b). 
 
 Also an ejectment on a clause of re-entry for non-payment of rent, 
 under the stat. 4 G. 2. r. 28. (of which hereafter), proceedings will 
 be stayed at any time after judgment and before execution executed, 
 on the tenant bringing into Court all the rent in arrear and costs (c). 
 But the Court will not stay proceedings if a writ of possession has 
 been executed. The application in such case is too late, no action 
 pending ; it cannot be granted without consent [d). 
 
 In ejectment by a mortgagee, for the recovery of the possession of 
 the mortgaged premises, or in debt on bond conditioned for the pay- 
 ment of the mortgage-money, or performance of covenants in the 
 mortgage where no suit in equity is depending for a foreclosure or re- 
 demption, by Stat. 7 G. 2. c. 20. if, the person having a right to re- 
 deem shall at any time, pending the action, pay to the mortgagee, or 
 in case of his refusal bring into Court all the principal monies and 
 interests due on the mortgage, and also costs to be computed by the 
 Court, or proper ofhcer appointed for that purpose, the same shall be 
 deemed and taken to be in full satisfaction and discharge of the mort- 
 gage ; and the Court shall discharge the mortgagor of and from the 
 same accordingly (^). 
 
 Upon this statute the Court stayed proceedings, although it was 
 objected that the defendant had agreed to convey the equity of re- 
 demption to the plaintiff: and if there be any doubt as to the amount 
 of what is due, the Court of King's Bench will refer it to the Master, 
 and that of Common Pleas to the Prothonotary, whose respective duty 
 it is to tax the costs ; and if the debt and costs are not paid, the 
 plaintiff must proceed in the action, and cannot have an attach- 
 ment (/). 
 
 {a) % Sell. Pract. i8i. (A) I Tidd's Pract. ^-jG, 7. (0 Ibid. 487. 
 
 (<0 T. T. 41 G. 3. T.'s MSS. (r) Tidd's Frnct. 487' (/) ^^id. 488.
 
 Sect. II.] the Action of FJectment ; S;c. 383 
 
 The Court however would not stay proceedings in an ejectment 
 brought by a mortgagee against a mortgagor, en the latter paying 
 principal, interest, and costs, where the latter had agreed to convey 
 the equity of redemption to the mortgagee [a). 
 
 A motion was to stay proceedings in ejectment on payment of 
 mortgage money and costs, pursuant to this act ; on shewing cause, 
 the plaintiff produced an affidavit that the mortgagee had been at 
 great expense in necessary repairs of part of the premises in his pos- 
 session, (the ejectment was brought for the residue,) and therefore 
 prayed that the Prothonotary might be directed to make allowance for 
 such repairs. Per Cur. — The rule must follow the words of the 
 statute ; the prothonotary will make just allowances and deductions (^). 
 But where there were two mortgages, the Court will not stay pro- 
 ceedings and compel a redemption of one mortgage only, upon pay- 
 ment of the principal, interest, and costs, on that mortgage, without 
 paying the rest (c). 
 
 A judge made an order pursuant to this act, to stay the mort- 
 gagee's proceeding in ejectment, upon bringing principal, interest, and 
 costs into Court ; and a rule was made to make the order a rule of 
 Court fiisi : but it afterwards appearing to the Court, that notice had 
 been given by the mortgagee to the mortgagor that he insisted upon 
 payment of two bonds, which were a lien upon the estate, the case 
 was adjudged to be out of this act, and the rule nisi was dis- 
 charged (d). 
 
 But where a rule, on the statute, to shew cause why proceedings 
 should not be stayed on payment of the mortgage-money and costs, 
 was made absolute ; upon the lessors of the plaintiff, who were as- 
 signees of the mortgagee, insisting to be paid a bond and a simple con- 
 tract debt due to themselves in their own right : per Cur. — A bond is 
 no lien in equity, unless where the heir comes to redeem. 
 
 The practice now is, to stay proceedings by summons before a 
 Judge (^). 
 
 Proceedings also will be stayed, in the case of an infant lessor of the 
 plaintiff j that of the death of plaintiff's lessor, perhaps ; that of the 
 defendant residing abroad ; and where a former ejectment has been 
 brought (/). 
 
 By the practice of making a rule to stay proceedings in this action, 
 on the demise of an infant, until a responsible plaintiff be named, or se- 
 curity be given for the payment of costs, if an infant deliver a declara- 
 tion to a defendant, some friend or guardian may set up as plaintiff, to 
 be responsible to the defendant for his costs. But if such person die 
 insolvent, so that the defendant cannot derive any benefit from the rule, 
 
 (o) 7 T. R. iZs. (0 a Sell. Pract. aao. (c) 2 BL R. 7z6. 
 
 (d) a Sell. Pract. %V>. (/) i Str. 413. in n. (/) i Tidd's Pract. 477-
 
 384 fVho may defend [Chap. XIV. 
 
 the infant himself must answer for the costs; the rule was made for 
 his benefit ; and an infant must not disturb the possession of others by 
 unlawful entries, without being liable to costs. — Previous however to 
 any motion in Court, inquiry should be made, whether there be a real 
 and substantial plaintiff, or not : for on inquiry, the guardian may un- 
 dertake to pay the costs : and in case he should, the Court would pro- 
 bably decline to interpose {a). 
 
 It has likewise been holden, that upon the death of the plaintiff's 
 lessor, the proceedings may be stayed, till the plaintiff shall have given 
 the defendant security for his costs [b). 
 
 So where an ejectment was brought on the demise of a person resid- 
 ing at Antigua ; and in another case where the lessor of the plaintifi' 
 resided in IreJandy the plaintiff was compelled to give the defendant a 
 similar security : in the latter case he was compelled to do it, although 
 it was an ejectment brought under the direction of the Court of Chan- 
 cery, wherethe bill was retained till after the trial of the ejectment and 
 security had already been given there j which security however was 
 only for 40/. {c) 
 
 But, excepting such instances, the Court will not compel the lessor 
 of the plaintiff to give security for the costs. 
 
 Therefore, a rule was refused, for the lessor of the plaintiff to give 
 security for the costs of an ejectment depending. Bullei-y J. said — The 
 application is not warranted by any authority. There are only three in- 
 stances in which the Court will interfere on behalf of a defendant, to 
 oblige the plaintiff to give security for his costs. The first is when an 
 infant sues *, then the Court will oblige \ht prochein atnyy or guardian, 
 or attorney, to give security for the costs : secondly, where the plaintiff 
 resides abroad, in which case the Court will stay proceedings till secu- 
 rity be given for the costs : and thirdly, where there has been a former 
 ejectment ; but there the rule is to stay the proceedings in the second 
 ejectment till the costs of the former are paid, and not till security be 
 given for the costs of the second [d). 
 
 Though a Court may stay proceedings in a new ejectment until the 
 costs of a former ejectment between the same parties, and also the costs 
 of an action for mesne profits dependent thereon, are paid ; yet they 
 will not extend the rule to include the damages in the action for the 
 mesne profits, however vexatious the proceedings of the present lessors 
 of the plaintiff may have been {e). 
 
 Proceedings will likewise be staid, when the costs of a prior eject- 
 ment upon the same title, or between the same parties, are left unpaid. 
 
 For some time after the introduction of this practice, tliese rules 
 were confined to cases where the two ejectments were brought in the 
 same court (/), but this limitation no longer prevails, and it is now 
 
 («) Run. Eject. l88. {b) 2 Str. I0j6. {') 1 Burr. 1 1 77, 
 
 [J) 1 T. R. 49r. (e) IS East's K. 233- (/) J Sid. 179. Cornb, iq6.
 
 Sect. II.] the Action ofFJectment ; ^r. 385 
 
 immaterial in what court the first ejectment is brought (a). Formerly 
 also there was a diversity of opinion, whether the proceedings could be 
 staid, where the two ejectments were brought (without fraud, or col- 
 lusion) upon different demises, although upon the same title (b) ; but 
 it is now of no consequence whether the two ejectments are brought 
 upon the demise of the same or different persons, against all or some 
 of the same parties, or for the same or different premises, provided they 
 are brought upon the same title, and for the recovery of part of the 
 same estate. Thus, proceedings have been staid where one of the les- 
 sors of the plaintiff in the first action died before the commencement 
 of the second ; where in the second ejectment two trustees were 
 added to the lessors j where part of the lands were occupied by new 
 tenants ; where the second action was between the heir of the plain- 
 tiff's lessor, and the heir of the defendant in the first action (c). And 
 in a case, where the second ejectment was brought by the lessee of an 
 insolvent debtor, who had been the lessor of the plaintiff in the first 
 action, and it appeared that the assignment was fraudulent to evade the 
 payment of the costs, the Court, (without entering into the point whe- 
 ther, in a fair case, the assignee of an insolvent debtor shall be called 
 upon for former costs, before he be suffered to bring a new ejectment 
 on the title of his principal) made the rule absolute to stay the pro- 
 ceedings until the costs of the first action were paid [d). 
 
 A distinction was also formerly taken as to the situation of the par- 
 ties in the different actions, and it was holden, that if the defendant 
 in the second ejectment had been the plaintiff's lessor in the first, the 
 proceedings should not be staid [e) : but this doctrine is now also ex- 
 ploded, and the change of situation in the parties is immaterial (f). 
 The rule will also be granted, whether the merits be decided in the 
 former action, or whether a judgment of nonsuit, or of fionprosy be 
 given : nor is the length of time which elapses between the two 
 actions any bar to the rule j for many good reasons may exist for such 
 delay, as the poverty of the other party, or a wish to end the con- 
 troversy (g). 
 
 The Courts will likewise stay the proceedings in a second ejectment 
 until the costs of a former one be paid, if the conduct of the party, 
 against whom the application is made, has been vexatious or oppressive, 
 although he is not liable to the costs of the first action. Thus, where 
 the lessor of the plaintiff in the second action was also the lessor in the 
 first, and had refused, after the appearance of the defendant in such 
 first action, to enter into the consent rule, whereby, although non- 
 suited for want of a replication, he was exempted from the costs of 
 
 (a) 7 Mod. 420 I. Salk. ajj. Barn, 133. Blk. 1158. 3 B. & P. zz. {h) Stran. 681. 
 Comb. 106. (e) Stran. 1152. 6 T. R. zz^. 6 T. R. 740. 8 T. R. 645. {d) Blk. 1180. 
 (*) 4 Mod. 379. (/) 6T. R. 223. is) Comb. 110. 6 T, R. 740. Salk. jjj. 
 
 Cc
 
 386 Of the Plea and Issue, in [Chap. XIV. 
 
 the defendant's appearance, the Court would not let him proceed in the 
 second ejectment until he had satisfied the defendant for the expenses 
 of such first appearance [a). And, upon the same principle, where 
 the firs'" ejectment was on the demise of the husband and wife, but the 
 husband alone entered into the consent rule, and judgment was given 
 therein in the Common Pleas for the defendant, (which judgment was 
 afterwards alHrmed in the King's Bench and the House of Lords,) and 
 after the death of the husband, the wife brought a second ejectment 
 on her own demise ; the Court would not suffer her to proceed until 
 the costs of the first ejectment were paid ; saying, " "We are not going 
 to compel the lessor to pay the costs, but only to prevent her being 
 vexatious {b)." 
 
 Particulars of Breaches. — In ejectment brought on the forfeiture of a 
 lease, the Court will compel the plaintiff to deliver a particular of the 
 breaches of covenant on which he intends to rely. 
 
 So, if the plaintiff declaie generally, and the defendant have any 
 doubt what lands the plaintiff" means to proceed for, he may call upon 
 him by a Judge's order to specify them. 
 
 On the other hand, the plaintiff may call upon the defendant to spe- 
 cify for what he defends, when that is not ascertained by the consent 
 rule. 
 
 Of the Plea and Issue, S^-c. 
 
 The general rule in the issue of this action is, that whatever bars 
 the I'ight of entry is a bar to the plaintiff's title. The plaintiff must, 
 therefore, prove seisin within twenty years in himself or his ances- 
 tors ; or must prove seisin in a third person, of a particular estate in 
 the land, and that he claimed within twenty years after the reversion 
 accrued •, or that he or sl:e was an infant, feme covert, mn compos, 
 imprisoned or beyond the sea, at the time when the title accrued, and 
 that he claimed within twenty years after he came of age, ^<:. or 
 otherwise became a free agent by such disability ceasing : for every 
 plaintiff in ejectment must shew a right of possession as well as of 
 property ; and therefore the defendant need not plead the statute of 
 limitations, as in otlier actions [c). 
 
 A fine and non-claim, or a descent cast, which takes away the en- 
 try, are good pleas in this action, in bar of the plaintiff^'s right of 
 entry [d). 
 
 So, an accord with satisfaction Is a good plea, for it Is an action of 
 trfspass in its nature (f). 
 
 So, by ptrmission of the Court, the defendant may plead to Its ju- 
 
 (j) BU.<> .;. (In .Str.iii. 1152. (,) Run. Kiict. 2.-54. {>) "'i'l- Zif- (0 ">'''• 
 
 6
 
 Sect. II.] the Action of Ejectment ; S;c, SSI 
 
 risdictlon : which permission the Court will grant before judgment 
 7iisi against the casual ejector (<7.). 
 
 Ancient demesne, therefore, may be pleaded : but application to 
 plead it must be made within the first four days ; and there must be 
 an affidavit, stating that the lands are holden of a manor, which is 
 ancient demesne ; that there is a Court of Ancient Demesne regu- 
 larly holden ; and that the lessor of the plaintiff has a freehold inte- 
 rest {l>). 
 
 The opinion of the Court, touching this plea, was pretty clearly 
 manifested in a motion for leave to plead, it being denied by reason 
 of sufficient ground not being shewn to support it : on which occa- 
 sion Mr. J. Foster observed, that as it was agreed to be necessary to 
 ask the leave of the Court to plead this plea to a declaration in eject- 
 ment, it followed of course that it must be in the discretion of the 
 Court either to grant or refuse their leave ; and he thought that the 
 affidavit in the principal case was not sufficient to oust that Court of 
 its jurisdiction. He spoke of these Courts of Ancient Demesne as 
 putting people out of the protection' of the law, and fitter to be to- 
 tally destroyed than to be favoured and assisted. Mr. J. Wilson said, 
 it was a strange, wild jurisdiction •, where the jurors are judges both 
 of law and of fact, and ignorant country fellows are to determine 
 the nicest points of law, and therefore he was not for granting such 
 leave unless compelled by authority. Indeed, if the case is brought 
 strictly within the rule, then the leave must be granted : we cannot 
 help it. The authorities down from Alden's case [5 Co. 105.] to this 
 time, it is true, are " That ancient demesne is a good plea in eject- 
 ment." But if you would oust this Court of jurisdiction, you must 
 shew " that another Court has jurisdiction." Now this affidavit does 
 not shew " that there are suitors In the otlter Court," nor " that these 
 lands are holden of a manor, which manor is holden in ancient de- 
 mesne :" whereas, if the lands only, and not the manor, are ancient 
 demesne, the matter cannot be tried in the court of that manor. The 
 affidavit ought to have shewn " That the lands are holden of a manor, 
 which manor is ancient demesne." It cannot be tried "Whether the 
 lands themselves are ancient demesne." Doomsday will not shew 
 this. Doomsday will only shew whether the manor is so or not. The 
 form of the plea makes this as clear as the sun. It ought also to be 
 shewn that the lessor of the plaintiff has a freehold. How can he 
 sue there in ejectment as a lessee of a term ? Upon such a strange, 
 wild jurisdiction as this, and upon such an affidavit, I am not for giv- 
 ing the defendant leave to plead this plea. Rule discharged (r). 
 In every such plea, therefore, the defendant must state another ju- 
 
 (a) I Bl. R. 197. a Sell. Pract. 189. (b) I'idd's Pract. 573. 8 T. R. 474. 
 
 {c) % Burr. 1047. 8 T. R. 4-4. 
 Co 2
 
 388 Of the Plea and Issue, ^-c. [Chap. XIV. 
 
 risdictlon : as, if an action be brought here for a matter arising in 
 WaleSf to bar the remedy sought here, the jurisdiction in the Court in 
 JVales must be shewn ; and in every case to repel jurisdiction here, 
 the party must shew a more proper and sufficient jurisdiction else- 
 where [a). 
 
 Pleas either in bar or in abatement of the action are now, however, 
 seldom, if ever, pleaded : for, according to the modern practice, the 
 defendant, if he appear, is generally bound by the consent-rule, to 
 plead the general issue of not guilty : but where an ejectment was in- 
 tended to try the right to a rectory, the defendant was admitted to 
 plead that he himself was rector, and to traverse the rectorship of 
 the plaintifl's lessor, in order by that means to bring the right in ques- 
 tion (b). 
 
 For the most part, however, the defendant can plead the general 
 issue only : which is therefore usually left with the consent-rule, at 
 the Judge's chamber, or the Prothonotary's, to plead ; and then judg- 
 ment may be entered for want of a plea, as in other actions, without 
 a special motion in Court for the purpose (f). 
 
 The. present practice of delivering a declaration to the casual ejector 
 before the term, forces the defendant to issue the same term [d). 
 
 In making up the issue, the first declaration must not be varied 
 from, except in the defendant's name {/). 
 
 According to the words of the rule for judgment against the casual 
 ejector, unless the tenant appears, a new declaration against him 
 should in strictness be delivered before a plea in form can be re- 
 quired {/). 
 
 Where the name of the plaintifPs lessor was inserted in the body 
 of the plea (as the person complaining), instead of that of the no- 
 minal plaintiff, judgment signed against the casual ejector under the 
 idea that the plea was null and void, was set aside with costs, as ir- 
 regular (^). 
 
 The lessor of the plaintiff in ejectment cannot release the ac- 
 tion [h). 
 
 A new defendant in ejectment may give a rule to reply and non-pros. 
 the plaintiff, who being nominal, can have no costs (/). 
 
 If the plaintiff, after issue and before trial, enters into part of the 
 premises, the defendant at the assizes may plead it as a plea puis dar- 
 rein continuance : nor is it in the discretion of the judge to reject it or 
 not ; but he is bound to receive it, it is made part of the record, and 
 the trial is stopped, for the plaintiff cannot reply to it at the assizes (k). 
 
 Death of the Plaintiff. — The death of the nominal plaintiff in eject- 
 
 {a) Run. Eject. 138. (J,) Ibid. (0 'l^'J- ('') "'id- (*) ^ l^d. Raym. 1411. 
 
 (/; a ScU. PracM88. C^) Ibid. (A) 4 M. & S. 300. (.; a Bl. R. 763. 
 
 (>) 3£cll. Fract. J91. 3 T. R. iSA-
 
 iSect. 11.] Of the Evidence. 389 
 
 ment shall tiol abate the action ; especially if another person of the 
 same name reside on the lands •, for the Court will take notice that it 
 is the lessor of the plaintiff that is concerned in interest [a). 
 
 As the plaintiff has a right to proceed both for the possession and 
 the trespass, the death of the lessor, though he be only tenant for 
 life, is no abatement •, nor can it be pleaded puis darrein continuance ^ 
 because the right is supposed in the lessee: and though the posses- 
 sion cannot be obtained, yet the plaintiff has a right to proceed for 
 damages and costs •, all that the Court can do, is to oblige him to 
 give security for costs, when the lessor is dead [b). But if in such 
 case the plaintiff is nonsuited for want of defendant's appearing and 
 confessing, the executor of the lessor shall have no costs taxed on the 
 common rule (c). 
 
 Of Defendant. — If one of several defendants die after issue joined, 
 and before verdict, the death should be suggested on the roll before 
 trial, and a venire awarded to try the issues between the survivors. — 
 Yet when the venire was awarded against both, and the verdict was 
 against both, upon suggesting the death of the one upon the roll 
 after verdict, the plaintiff had judgment for the whole against the 
 other [d). 
 
 Of either Party. — If either party die after the commencement of the 
 assizes, though before trial, it is within the stat. 17 C. 2. c. 28. made 
 perpetual by i J. 2. c. i"]. s. ^. whereby it is enacted, That in all ac- 
 tions personal, real or mixed, the death of either party between the 
 verdict and judgment shall not be alleged for error, so as such judg- 
 ment be entered within two terms after verdict. — If judgment be 
 signed, though it be not entered on the roll within two terms after 
 verdict, it is sulHcient [e). 
 
 Of the Evidence. 
 
 In order to enable a claimant to support an action of ejectment, he 
 must be clothed with the legal title to the lands {f). No equitable 
 title will avail. And this principle is so fixed and immutable, that a 
 trustee may maintain ejectment against his own cestui que trust [g)y and 
 an unsatisfied term outstanding in trustees will bar the recovery of 
 the heir at law, even though he claim only subject to the charge {h). 
 In the time of Lord Mansfeld, indeed, the Court of King's Bench 
 seemed inclined to adopt a different principle, and to exercise a species 
 of equitable jurisdiction in this action. Thus a mortgagee was per- 
 mitted to maintain ejectment against a tenant, claiming under a lease 
 granted prior to the mortgage, provided he gave notice to the tenant 
 that he did not intend to disturb the possession, but only to get into 
 
 (<j) 1 Mod. 252. {b) i Sell. Pract. 193. a Str. 1056, (f) a Sell. Pract. 193. 
 
 (</) Ibid. 1 Burr. 363. (0 a Sell. Pract. 194. " (/) 7 T. R. 43, 47. 8 T. R. a, 
 
 6T.R. 189. (^) 8 T. R. 118. 123. {i)aT. R.684. 
 
 ^
 
 590 Of the Evidence in [Chap. XIV. 
 
 the receipt of the rents and profits of the estate {a) ; the legal estate 
 of a trustee was not allowed to be set up against the cestui que 
 trust (b) ;, and a reversioner was allowed to recover his reversionary 
 interest, subject to a lease and Immediate right of possession in ano- 
 ther (<r). These cases, however, have long been over-ruled, and the 
 clearness and certainty of the principle since adopted amply compen- 
 sate for the partial inconvenience it may at times occasion. 
 
 The claimant must also have a rlglit to the possession ; that Is to 
 say, he must have a right of entry upon the lands at the time of the 
 demise in the declaration. And whatever takes avv'ay this right of 
 entry or possession, and turns the same into a right of action will 
 also deprive the claimant of his remedy by ejectment, although the 
 legal title still remains in him. But if he be entitled to the posses- 
 sion at the time the demise is laid, it will be sufficient, although such 
 right of possession be divested before trial, for the action of eject- 
 ment Is intended to give the party compensation for the trespass as 
 well as to enable him to recover possession of the land, and he has a 
 right to proceed for such trespass, although his right to the possession 
 should cease (^d). 
 
 As the party In the possession of property Is presumed to be the 
 owner of the .same, until the contrary Is proved, It Is necessary for a 
 claimant in ejectnp.ent to shew In himself a good and sufficient title 
 to the lands, to enable him to recover them from the defendant. He 
 will not be assisted by the weakness of the defendant's claim. The 
 possession of the latter, gives him a right against every man 
 who cannot establish a good title ; and if he can answer a prima. 
 facie case on the part of the lessor of the plaintiff, by shewing 
 the real title to the land to be in another, it will be sufficient for his 
 defence, without also proving that he holds the lands with the consent 
 or under the authority of the real owner [e). And the case will not 
 be varied although the lessor can prove that he has previously been 
 himself in possession of the premises; Thus where a lease, made by 
 a rector, was rendered void by his non-residence, his lessee was not 
 allowed to recover against a stranger, who, without any title whatso- 
 ever, ousted him y and got possession {f). So also where a man leased 
 land for years, and Ills lessee, nfter having been in possession a consider^ 
 able time^ made an under-lease, the under-lessee, upon an ejectment 
 brought byihis Immediate lessor, was allowed to shew that the lease 
 from the original lessor had expired and thereby nonsuited the plain- 
 uKig). 
 
 To obviate the inconveniences which may at times arise when an 
 ejectment is brought by a cestui que trusty from the operation of the 
 
 (^) Doug. ai. 179. B. N. P. 96. {h) B. N. P. no. S. C. Burr. 1416- S. C. Blk. 
 
 4a8. 9. T. R. 684. Doug. 710. 721. Bun. 1895. 1901. (fj i T. R. 759 (/« «o/'0- 
 
 {J) J 4 East, 488. (0 4 13urr. 2484- U)- 'J'- ^^' 7-i'J- 0.0 4 T. R. 682.
 
 Sect. 11.] the Action of Fjectme7it ; <§t. 391 
 
 salutary maxim that the legal title must prevail, as affecting his situa- 
 tion with his trustees, the jury will in particular cases be permitted to 
 presume, that a regular surrender has been made by the trustees of 
 their estate ; tliereby clothing the cestui que trust with the legal title, 
 and enabling him to recover in the action. Thus a surrender will be 
 presumed if the purposes of the trust-estate have been satisfied {a) ; 
 or if the beneficial occupation of the estate by the possessor induces 
 a supposition, that a conveyance of the legal estate has been made to 
 the party beneficially interested ; or when the tru^t is a plain one, and 
 a Court of Equity would compel the trustees to make a conveyance (b). 
 But this presumption will not be made if the surrender be a breach' 
 of the trust •, or against the owner of the inheritance who is in- 
 terested in upholding it [c] j or where the title of the party, for whom 
 the presumption is required, is a doubtful equity only, until a Court 
 of Equity has first declared in favour of the equitable title (J) ; nor 
 can the presumption be made by the Court, where the merits of the 
 case would have warranted such presumption at tlie trial, if it appear, 
 upon a special verdict, or special case reserved for their opinion, that 
 the trust-estate though satisfied is still in point of fact outstanding in 
 the trustees [e). 
 
 When the defendant would prove a title out of the lessor, it must be 
 a subsisting one ; for the mere production of an ancient lease, though 
 for a thousand years, will not be sufficient, unless he likewise prove 
 possession under it within twenty years {f). 
 
 So, if the defendant produce a mortgage <}iCii(ly the interest upon 
 which has not been paid and the mortgagee never entered, it will not 
 be sufficient to defeat the plaintiff, claiming under the mortgagor ; 
 because it will be presumed that the money was paid at the day, con- 
 sequently it is no subsisting title. But if the defendant prove interest 
 paid upon such mortgage, after the time of redemption, and within 
 twenty years, it will be sufficient to nonsuit the plaintiff (^). 
 
 No less a time than twenty years will raise a presumption that a 
 mortgage has been assigned or suiTendered, although the defendant 
 in ejectment setting up the mortgage term as a bar, neither proves 
 that interest continues to b^ paid, nor accounts for his possession of 
 the mortgage deed (/j). 
 
 When the relationship of landlord and tenant subsists between the 
 parties, proof of title is not necessary, for a party will not be allowed 
 to dispute the original right of him by whom he has been admitted 
 into possession. 
 
 But although he cannot shew that his landlord's title was originally 
 
 (a) 2T. R.684. (i)4T. R.683. (0 II East, 478. (i) 8 East, 248. 
 
 (<r)7T.R.43. (/) Bull. N.P.I 10. (^) Ibid. (» 5 Taunt. 170.
 
 392 Of the Evidence in [Chap. XIV. 
 
 defective, he may shew that subsequently to his (the tenant's) entry 
 it has expired [a). 
 
 It has been held that in an ejectment brought by a second mort- 
 gagee against the mortgagor, the defendant shall not give in evidence 
 the title of the first mortgagee in bar of the second ; because he is 
 barred to aver contrary to his own act, that he had nothing in the 
 lands when he took upon him to convey by the second mortgage, tamen 
 quare (b). 
 
 Also, where a lessee for years had got possession of some mortgage 
 deeds, and endeavoured to set up that title against the mortgagor ; 
 though it shewed that the plaintiff had no right to recover as against 
 the second mortgagee, yet he was permitted to recover against the de- 
 fendant in that instance ; and the decision was acquiesced under, ta~ 
 men qimre {c). 
 
 There is an equity for the landlord, against whom judgment had 
 been obtained in ejectment by his own negligence, to restrain his 
 tenant, and those to whom he had attorned, from setting up the lease 
 against his ejectment, though a year and three quarters of the term 
 were unexpired, and it is not necessary that the ejectment should be 
 brought before the bill actually filed {d). 
 
 Where several matters are necessary in order to establish a com- 
 plete title, the plaintiff must prove all those requisites. 
 
 Therefore, in an ejectment for a rectory, if the plaintiff prove the 
 taking of the tithes only, and not an entry into the glebe, he will be 
 nonsuited. For the plaintiff ought to prove that his lessor was ad- 
 mitted, instituted and inducted, and that he has read and subscribed 
 the thirty-nine articles, and declared his assent and consent to all 
 things contained in the book of Common Prayer. But he need not 
 prove a title in the patron ; for institution and induction upon the 
 presentation of a stranger are sufficient to bar him who has right in 
 ejectment, and to put the rightful patron to his quare impedit : but 
 presentation ought to be proved, and institution would not of itself 
 be sufficient evidence of it, though it were recited in the letters : 
 especially if induction or possession have not followed. — Whether 
 proof of a verbal presentation would suflice, seems doubtful (<?). 
 
 The books of an incumbent, respecting his tithes, may be evidence 
 for his successor. This is almost the only instance in which the law 
 permits the private mcmornnda of a person deceased to affect the rights 
 of third parties (/). 
 
 If an ejectment be brought by the assignees for lands which 
 may have come to the bankrupt after his bankruptcy, and be- 
 
 [a) 4 T. R. 68j. io Ves. jun. 544. {h) Bull. N. P. 110. (.) 3 T. R. 760. in n. 
 
 (d)io \'c... s^^. U) I-auii. 6i. Bull, N. 1'. loj. (/) 5 T. R.ijj. aVes. 43. tiled.
 
 Sect. II.] the Aclion of Ejectment ; S^x. 393 
 
 fore the allowance of the certificate, they should give in evideuce a 
 special conveyance of this part {a). 
 
 Reasonable presumption, however, will be admitted in favour of a 
 title (b). 
 
 Therefore where a prebendary brought this action to recover a 
 house built upon his prebendal scite, the prebendary being called to 
 prove the several requisites necessary by the stat. 13 Eliz. c. i2. and 
 13 & 14 C. 2. c. 4. the Chief Justice said, "Those shall be presumed 
 upon sound principles of law" (r). 
 
 So, where the lessor claims as heir at law, as for instance of A. it 
 is sufficient to prove that A, was in possession, and that the lessor is 
 his heir ; for it shall be intended, prima facie, that A. was seised in 
 fee, till the contrary appear {d) ; and, if there be an agreement be- 
 fore marriage, that a settlement shall be made of the wife's estate, 
 reserving to her a power to dispose of it, which agreement is signed 
 by the intended husband and wife, but not sealed, and before the 
 marriage the wife disposes of it to the husband, who survives her and 
 devises the estate by will, the title of his devisee is such a doubtful 
 equity as cannot be set up in an ejectment against -the title of the 
 wife's heir at law {e\ 
 
 So, where plaintiff produces an original lease of a long term and 
 proves possession for seventy years, the mesne assignments shall be 
 presumed {f). 
 
 However, as to the doctrine of presumption which has consider- 
 able weight in the scale of evidence, this general principle must be 
 attended to ; namely, that, generally, length of time alone is nothing : 
 but presumption must arise from some facts or circumstances arising 
 within that time {g) : for there are two sorts of presumption, one a 
 presumption of law, not to be contradicted ; the other a species of 
 evidence ; and there can be no presumption of the nature of evidence 
 in any case, without something from whence to make it ; some ground 
 on which to found the presumption. — Every presumption may be en- 
 countered, or to speak more technically, rebutted, by contrary evi- 
 dence ; which in the case of executors, is called rebutting an equity ; 
 as the implied revocation of a will for example, may be rebutted by 
 parol evidence (-6). 
 
 Thus, a demise of premises in Westminstery late in the occupation 
 of A. particularly describing them, part of which was a yard, does 
 not pass a cellar situate under that yard, which was then in the occu- 
 pation of B, another tenant of the lessor, and the lessor in an eject- 
 ment brought to recover the cellar is not estopped by his deed from 
 
 (a) a Esp. N. P. 438. {h) 7 T. R. 488. (.) 3 Wils. 366. (i) Run. Eject. 311. 
 (/)aT. R. 684. (/) aBl. R. laaS. (^) Run. Eject. 276. (i) a Burr. 1072, 3-
 
 394 Of the Evidence in [Chap. XIV. 
 
 going into evidence to shew that the cellar was not intended to be de- 
 mised [a). 
 
 In ejectment, the landlord having proved payment of rent by the 
 defendant, and half a year's notice to quit given to him, cannot be 
 turned round by his witness proving on cross-examination, that an 
 agreement relating to the land in question was produced at a former 
 trial between the same parties, and was on the morning of the then 
 trial, seen in the hands of the plaintiff's attorney, the contents of 
 •which the witness did not know ; no notice having been given by 
 the defendant to produce that paper: for though it might be an agree- 
 ment relative to the land it might not affect the matter in judgment, 
 nor even have been made between these parties {b). 
 
 This being an action of trespass, the ward or place mentioned in 
 the declaration, is material. 
 
 Thus, in ejectment for a house in the parish of St. Peter, in the 
 ward of Cheap, the defendant proved it to be in the ward of Farring- 
 don Within, and that no part of the parish of St. Peter was in the 
 ward of Cheap, and the plaintiff" was nonsuited {c). 
 
 The rules respecting notice to quit, before a tenant at will, or more 
 correctly speaking, a yearly tenant, can be ousted of his possession, 
 and what will amount to a waiver of it pointedly apply to the present 
 subject ; for a tenancy must be determined before the day of the de- 
 mise laid in the declaration ; we refer the reader for information on 
 these points to the seventh chapter of this work, where they occur as 
 connected with the tenancy from year to year. 
 
 Notice to determine a composition for tithes must be the same as 
 between landlord and tenant (d). 
 
 If a man gets into possession of a house to be let, without the 
 privity of the landlord, and they afterwards enter into a negotiation 
 for a lease, but differ upon the terms ; the landlord may maintain 
 ejectment to recover possession of the premises, without giving any 
 notice to quit {e). 
 
 When the defendant comes in as landlord it is necessary to shew 
 that he is in the receipt of the rents and profits of the premises to 
 which the lessor of the plaintiff claims title, or that the declaration 
 was served upon the tenant in possession {f). 
 
 An ejectment is a possessory action, in which almost all titles to 
 land are tried {g). Whether the party's title be to an estate in fee, 
 fee-tail, for life, or for years, the remedy is by one and the same ac- 
 tion ; and it is now almost the only remedy in practice for recovering 
 land wrongfully withheld (Z>). 
 
 {a) 1 T. R. 701. (i) 12 K.ist's R. 237- (0 i Sn- S')S' W 2 ^^- R- ^^i. 
 
 (c) 2 Cimi 1). joj. (/) 3 Cdnijib. 51J. ii6. (n) i JBuii. 90. (/-) i Biui. 66/.
 
 Sect. II.] llie Action of Fjechneni; <5'c. 395 
 
 In this action therefore, titles to lands arising under wills are tried. 
 These for the most part are cases brought by the heir at law against the 
 devisee, or against the person who claims to be heir at law, on the 
 ground of bastardy ; or by a devisee claiming an estate under a will. 
 Where one brings an ejectment as heir at law, he ought properly to 
 make out a regular pedigree from the ancestor under whom he 
 claims : mere report of relationship, or supposition, are not sufficient ; 
 for if such evidence were admitted, the estate might be carried con- 
 trary to the rules of descent ; as for example, to the paternal, instead 
 of the maternal line (a). 
 
 The entry of the heir is necessary only where the lands were in the 
 actual occupation of his ancestor : for if they are held under a lease 
 for years, and the lessee had entered under his lease, the heir will be 
 considered as having a seisin in deed, before entry and receipt of rent ; 
 because the possession of the lessee for years is his possession (^). 
 
 In ejectments against devisees, or their heirs, the matter turns on 
 the due execution of the will ; on the testator's capacity to devise (c) ; 
 or on the legality of the devise itself : and though, in order to effectu- 
 ate the intention of a devisor, a greater latitude of construction is 
 allowed by the Courts in the case of a will than in the construction of 
 deeds [d) ; yet, words tending to disinherit the heir at law are insuf- 
 ficient to prevent his taking, unless the estate be given to somebody 
 else. For it is a rule, that the heir at law is not to be disinherited 
 ^■without positive words in the will, or a plain intention in the devisor 
 that he shall be so, to be collected from the words of the will (e). 
 
 When the lessor claims as heir, and proves his pedigree, and stops, 
 and the defendant sets up a new case, which is answered by fresh 
 evidence on the part of the lessor, the defendant is entitled to the 
 general reply (f ). And if, after the pleadings are opened by the 
 junior counsel for the lessor, the defendant's counsel expresses him- 
 self ready to admit the lessor to be the heli", it will entitle him to 
 open the case, and make the first address to the jury (g). Where 
 also the lessor claims under a will, and the defendant under a codicil 
 thereto, the validity of which is the question between them, the 
 defendant, on admitting the title of the lessor under the will, has a 
 right to begin and have the general reply (h). 
 
 As this action sometimes turns upon the question of marriage, it 
 may be observed, that marriages in fact may be proved either by the 
 register or a copy of it, or by viva voce evidence of the ceremony 
 corroborated by circumstances identifying the parties (z). It is not 
 necessary, however, to prove a marriage in fact : a reputed marriage 
 
 (a) z Bl. R. 1099. {h) I Cruise's Dig. tit. i. s. 39. 1 Inst. 15. a. 3 Wils. 521. 
 
 7 T. R. 390. 8 T. R. 113. (0 a Esp. N. P. 467. {J) 8 T. R, 519. Ibid. 502. 
 
 (;) Ibid. 582. (/) 4 T. R. 497. {g) M.S. Nottingham Summer Assizes, 1S13. 
 
 Coram Le El.mc, J. (/j) 3 Campb. 368. (/) Run. Eject. 357.
 
 396 Of the Evidence in [Chap. XIV. 
 
 will be sufficient ; and that may be substantiated by cohabitation, 
 reputation, or other circumstances, from which a marriage may be 
 inferred [a) 5 and whoever wishes to impeach a marriage, must shew 
 wherein it was irregular {b). 
 
 With respect to cohabitation, it is the practice to admit evidence 
 of what the parties have been heard to say as to their being or not 
 being married [c). 
 
 In this action, therefore, proof of marriage differs from that re- 
 quired in a dower, in which latter action it must be tried by the 
 bishop's certificate. However, except in cases of actions for criminal 
 conversation, (which are in some sort penal in their nature) and 
 prosecutions for bigamy (in both of which an actual marriage must 
 be proved), reputation is a good proof of marriage, and the jury may 
 infer it from circumstances [d). 
 
 If the lessor of the plaintiff claim title as guardian in socagCy he may 
 be called upon to prove that the infant is not fourteen years of age (t). 
 
 In ejectment of tenants of the mortgagor, he defended, and the 
 plaintiff proved the mortgage only, which proof was held not to be 
 sufficient ; for he should have proved the lands to be in possession of 
 the persons to M'hom the ejectments were delivered, as the defendant 
 only admits himself to be landlord to them of lands in their posses- 
 sion (/). 
 
 If tenant by elegit be lessor of the plaintiff it will be necessary for 
 him to prove an examined copy of the judgment roll containing the 
 award of the elegity and return of the inquisition, but he need not 
 prove a copy of the elegit and inquisition [g) ; but if it appear, 
 that more than a moiety of the land was extended, he cannot recover, 
 for it would be ipso facto void, and not need a j udgment or audita 
 querela to avoid it (/:»). 
 
 So, in ejectment by the conusee of a statute-merchant, he must 
 prove a copy of the statute, and of the capias si facias returned, and 
 the extent also returned, and also the liberate returned ; for though by 
 the return of the extent an- interest is vested in the conusee, yet the 
 actual possession of the interest is by the liberate : for an extent gives 
 only a possession in law (;'). 
 
 In ejectment for a copyhold on a forfeiture, the plaintiff ought to 
 prove that his lessor is lord and the defendant a copyholder, and that 
 he committed a forfeiture ; but the presentment of the forfeiture need 
 not be proved, nor the entry or seisure of the lord for the forfeiture (*). 
 
 If an ejectment be brought against the lessee for years of a copy- 
 
 (j) 4 Burr. 1058. (/>) Ibid. 360. (<:) Bull. N. P. 294- id) i Wils. 122. 
 
 115. a Str. 960. 7T. R. 35. I Doug. 174. I Ld. Raym. 744. 1 Bl. R. 632. 4 Burr. 
 1059- (') Ru"- i'-j<-"Ct- 2:5. (/) a Sell. Pract. ai8. ^ Cromp. Pract. 194- 
 
 (jf) Bull. N. P. 104. 2 M. ;. y.56j. (A) Snlk. 563. 1 \A. R.iym 718. (f) Bull- 
 
 N.P. 104. (7) Ibid. 107. (& vide arte.)
 
 uSect. II.] the Action of Tjectment; 8^c. S97 
 
 holder (relying upon the lease as a forfeiture) the plaintiff must prove 
 an actual admittance of the copyholder : and it will not be sufficient 
 to prove the father admitted and that it descended to the defendant's 
 lessor as son and heir, and that he had paid quit rents : for a copy- 
 holder cannot make a lease except to try a title, before admittance 
 and an actual entry \ and therefore if after admittance he were to 
 surrender without making an actual entry, the surrender would be 
 void {a). 
 
 The recital of the will in the copy of the admittance, is good evi- 
 dence of the devise against the lord or any other stranger. But if the 
 suit be between the heir of the copyholder and the devisee, the will 
 itself ought to be produced [b). 
 
 Whetner copyholds are within the statute against fraudulent con- 
 veyances, and therefore the plaintiff claiming under a voluntary con- 
 veyance shall prevail against a defendant claiming under a subsequent 
 purchase for a valuable consideration, is doubtful (f). 
 
 If the trustees of a public turnpike act, which empowers them to 
 erect toll-houses and to mortgage, and which declares that there shall 
 be no priority among the creditors, have made a mortgage of the 
 toll-houses and gates, which is not within their power, and an eject- 
 ment is brought against them by the mortgagee, they are not estopped 
 by their deed from insisting that the Act gives them no such power {d) ; 
 for the general principle, that the party granting is estopped by his 
 deed to say that he had no interest, does not apply where trustees are 
 acting not for their own benefit, but for that of the public ; besides 
 the deed cannot operate in direct opposition of an Act of Parliament 
 which negatives the estoppel ; and this being a Public Act, the Court 
 are bound to take notice that the trustees had no such power (^). 
 
 Witnesses. — With respect to witnesses, in general a witness must 
 testify from his own knowledge of the fact which he is called upon to 
 prove ; but he may assist his' memory as to the circumstance, by 
 memoranda taken at the time ; yet if he does not speak from any recol- 
 lection which he has, but merely from such memoranday the original 
 minutes must be produced by him at the time of examination (/" ). 
 
 The tenant is incompetent to prove the fact of possession ; for he 
 cannot be permitted to support his own possession, by his own testi- 
 mony ; besides he is liable for the mesne profits {g). 
 
 But where a witness produced to prove the lease was objected to 
 because he had the inheritance in the land demised, it being answered 
 that both parties claimed under the same person, he was admitted to 
 give evidence : for under circumstances between indifferent persons, 
 
 (a) Bull. N. P. 107. (& mide ante.) (/.) Ibid. io8. (0 Ibid. 108. Dougl. 716. 
 
 n. 1. Cowp. 158. (a') 2 T. R. 169. (<■) Ibid. 171. (/) Run. Eject. Z53. 
 
 (g) Cowp, 612. 1 Str. 63c!, I Mari, 7. 5 Tsuiit. i8j.
 
 398 Of the Evidence in [Chap. XIV. 
 
 and where he has not any hiterest in the question, the landlord is a 
 competent witness to prove the terms of his own demise [a). 
 
 In an action at the suit of a tenant claiming a right of common over 
 a piece of waste land against the owner of an adjoining close, for not 
 repairing an intervening fence, the landlord under whom the plaintiff 
 holds the premises in respect of which he claims the right of common 
 is not a competent witness to prove the right. Neither in such an 
 action are others who have a similar right of common, competent 
 witnesses for that purpose {b). 
 
 Declarations by tenants are admissible evidence after their death, 
 to shew that a certain piece of land is parcel of the estate which they 
 occupied ; and proof that they exercised acts of ownership in it (not 
 resisted by contrary evidence,) is decisive. — Whether parcel or not, is 
 always matter of evidence {c). 
 
 So, where the plaintiff claimed as devisee in remainder under a will 
 twenty-seven years before, under which there was no possession, 
 declarations by the tenant who was in possession at that time, that he 
 held as a tenant to the devisor, were admissible evidence to prove seisin 
 in the devisor [d). 
 
 So, a grantee, when he appears to be a bare trustee, is a good wit- 
 ness to prove the execution of the deed to himself (<?). 
 
 An heir apparent may be a witness concerning the title of the land, 
 but the remainder-man cannot, for he has a present estate in the 
 land ; but the heirship of the heir is a mere contingency. So, tenant- 
 in-tail, remainder in-tail, he in remainder cannot be a witness con- 
 cerning the title of these lands ; for he has an estate, such as it is (/). 
 In an action at the suit of a lessor against his lessee, for not culti- 
 vating the farm according to covenants contained in the indenture of 
 lease, the sub-lessee of part of the premises is a competent witness to 
 prove performance of the covenant on part of the defendant (^). 
 
 As to executors, an executor may be a witness in a cause concern- 
 ing the estate, if he have not the surplusage given him by the will {h). 
 It is clear, therefore, that an executor in trust may be a witness ; and 
 it is now held to be no objection to an executor's testimony, that he 
 may be liable to actions as executor de son tort. So an executor who 
 takes not any beneficial interest is a competent witness to prove the 
 sanity of his testator (?). 
 
 A person who had sold the inheritance without any covenant for 
 good title or warranty was allowed to be a witness to prove the title 
 of the vendee [k). 
 
 Husband and wife cannot in any civil case be admitted as witnesses 
 
 (a) 3 T. R. 309. Run. Inject, aj I. i T. R. 4. (i) 1 Campb. 29c. (<r)aT. R. 53. 
 
 (</) Ibid. 55. (0 1 P. Wms. 387.290. C/)Snlk. 383. (^) i Campb.34l. 
 
 {h) I Mod. 107. (/) Uoug. 139. 141. (/) 1 Str. 445.
 
 Sect. II.] the Action of Ejectment ; S^c, 399 
 
 for or against each other ; this is now considered as a settled principle 
 of law {a). 
 
 With respect to the objection of interest, which if substantiated 
 applies to the competency of a witness, if a person who is interested, 
 execute a surrender or release of his interest, he may be examined as 
 a witness, although the party refuse to accept the surrender, or re-- 
 lease : for every objection of interest proceeds on the presumption 
 that it may bias the mixiA. of jhe witness ; but this presumption is 
 taken away„by proof of his having done all in hig power to get rid of 
 'the interest ((J). ■'' ' ' ' ■ ■ ■ / .■.'.(-.'..-,.. 
 
 An objection to the competency of a witness should be first made 
 at the trial (c) ; for if made then, it may be shewn to have been re- 
 leased, or otherwise done away : therefore on motion for a new trial, 
 no objection to a witness can be received, which was not made at the 
 trial. Nay, an objection to the competency of witnesses discovered 
 after trial, is not sufficient ground, of itself, for granting a new trial ; 
 though it may have some weight, if the applicant appears to have 
 merits : and though the objection appears properly made at the trial, 
 yet in case of doubt, it is usual to apply to the credit, rather than 
 the competency of a witness {d). 
 
 Respecting the weight, as evidence, of a survey of lands, it is laid 
 down generally by Lord C. B. Gilbert, that an old terrier or survey of 
 a manor, whether ecclesiastical or temporal, may be given in evi- 
 dence, for there are no other ways of ascertaining the old tenures or 
 boundaries (e). 
 
 Accordingly, the survey of a religious house, taken in 1563, was 
 allowed to be good evidence to prove the vicar's right to small 
 tithes (/). 
 
 But this opinion seems to relate, with regard to terriers, to such as 
 are signed not only by the parson, but by the churchwardens and 
 substantial inhabitants of the parish, or at least by the church- 
 wardens, not being of the parson's nomination ; and, in respect of 
 surveys, to such as are signed by the tenants of the manor, or appear 
 to have been made at a court of survey. For then, being of a public 
 nature, they cannot be supposed to have been framed and attested to 
 serve the private interest of any individual : upon which principle 
 also, court rolls, or at least parish books are admitted in evidence, 
 when the rights of third persons are concerned (g). 
 
 But surveys, although of a private nature, have been admitted in 
 evidence where circumstances could be adduced to shew the improba- 
 bility of their being taken to serve any interested purpose in the 
 maker. — Thus, where two manors were in the hands of the same 
 
 (a) 4T. R.678. %T. R. a68. (i) Doug. 141. (c) Ibid. 140. 
 
 (J) iT. R, 719. Bl, R. 345. {") I StT. gs- '" "^tij. (/) i Vvils. 170.' 
 
 ig) ibid.
 
 400 Ofihe Evidence in [Chap. XIV. 
 
 person, and a survey was to be taken, and afterwards one of them 
 was conveyed to another person, and after a long time there were 
 disputes between the lords of the two manors, this old survey was 
 held to be evidence. So an old map of lands was allowed to be evi- 
 dence j as when it came along with the writings and agreed with the 
 boundaries adjusted in an antient purchase (a). 
 
 But where a terrier or survey is not attended with such circum- 
 stances, and is the mere private memorial of the party for whom it 
 is made, it seems only admissible as evidence against him (b). 
 
 Where a landlord has a right to enter for non-payment of rent, he 
 cannot recover in ejectment at common law, unless he demand the 
 rent on the day on which it became due ; nor under the statute 4 G. 
 2. if sufficient distress be on the premises [c). 
 
 In an ejectment on the several demises of two persons, although 
 the evidence shews the title to be exclusively in one of them, the 
 other cannot be compelled to be examined as a witness for the 
 defendant [d). 
 
 Of the verdict. — With respect to the verdict, the plaintiff shall re- 
 cover according to the title that he makes out, though not consistent 
 with that stated in the declaration ; for the true question in an eject- 
 ment is, who has the possessory right {e). 
 
 Therefore, where the plaintiff declared on a demise for seven years, 
 but had title to five only, he recovered according to his title notwith- 
 standing (/). ^ 
 
 So, the plaintiff may recover as many acres as he proves title to, 
 though he declare for more : and though the declaration, goes for 
 several things, and there is a general verdict ; though the declara- 
 tion be bad as to part, yet the plaintiff may recover for the re- 
 mainder {g). 
 
 As, where ejectment was " for one messuage or tenement and 
 four acres of land to the same belonging j" the words " to the same 
 belonging," were held to be void ; for land cannot properly belong to 
 a house, and then it is as a declaration of a messuage or tenement, 
 and four acres of land j which though it be void for the first, it is 
 good for the land : whereupon the plaintiff released the damages and 
 for the four acres had judgment (h). 
 
 In an ejectment upon the several demises of three persons, each 
 demise being of the whole, the lessors of the plaintiff are entitled to 
 a verdict, upon evidence that they jointly granted a lease to the de- 
 fendant which has expired (z). 
 
 In a recovery for ejectment for one hundred acres of land, twenty 
 of pasture, l^c. without mention of any house or garden, it was 
 
 (tf) I Wils. 170. (A) Ibid. (0 7 T. R, 117. 
 
 (J) 3 Campb. 177, (,) Bull. N. P. io6. (/) Ibid. 3 T. R. i.i. 
 
 [l) % Esp. N. P, 490. I Burr. 330, (/>; Cro. VXn. 186. (») 3 C^iHip. 19c. 
 
 8
 
 Sect. II.] the Action of Ejectment, S^c. 401 
 
 nevertheless held that the plauatifF should recover all the erections 
 thereon (a). 
 
 The maxim however that cujus est soluniy ejus est usque ad caelum et 
 ad inferos, does not apply in every case: ior it has been adjudged, 
 that the demise of premises in IVestmifister, late in the occupation of 
 ^. particularly describing them, part of which was a yard, did nq,t 
 pass a cellar situate under that yard which was then in the occupa- 
 tion of B. another tenant of the lessor (A). 
 
 A verdict cures a defect in setting out the title, though it cannot 
 cure a defective title [c). 
 
 After verdict, if the objection be groumlcd upon the mere mistake 
 of the clerk, or a trifling nicety, there is no need of any actual 
 amendment at all; the Court will overlook the exception (r/). 
 
 This distinction therefore must be attended to : if there be only 
 evidence at the trial upon such of the counts as are good and con- 
 sistent, a general verdict may be altered by the notes of the Judge^ 
 and entered only on those counts ; but if there be any evidence appli- 
 cable to the other bad or inconsistent counts, the postca cannot be 
 amended : the only remedy then is by a venire de novo {e). 
 
 After verdict in ejectment for a messuage and tenement, the 
 Court will give leave to enter the verdict according to the Judge's 
 notes for the messuage only, pending a rule to arrest the judg- 
 ment, without obliging the lessor of the plaintiff to release the 
 damages [f). 
 
 Of the Judgment, — ^The judgment in ejectment is a recovery of the 
 possession, (not of the seisin or freehold) without prejudice to the 
 right as it may afterwards appear, even between the parties. He who 
 enters under it, in truth and substance can only be possessed accord- 
 ing to right, prout lex postulate If he has a freehold, he is in as a 
 freeholder ; if he has a chattel interest, he is in as a termor : and in 
 respect of the freehold, his possession enures according to right. If 
 he has no title, he is in as a trespasser •, and without any re-entry by 
 the true owner, is liable to account for the profits {g). 
 
 Where the plaintiff declares for the whole of certain premises of 
 "which he recovered a moiety only, the judgment should not be for a 
 moiety only, but that the plaintiff recover his term ; and he must take 
 out execution for no more than he has a right to recover [h). 
 
 The judgment Is either against the casual ejector, or against the 
 tenant, upon a verdict ; the former Is generally before, the latter al- 
 ways after an appearance (i). 
 
 The casual ejector can in no case confess a verdict [h). 
 
 (a) Dyer, 47, a. i Lev. 334. {b) iT. R. 701. ut ante. {c) 3 V> ils. 375, 
 
 I H. Bl. 261. 6 T. R. i68. {d) 3 Wils. 275, (0 Run. Eject. 235. 
 
 (/) 8 East, 357. (^) I Burr. 114. {h) Ibid. 3Z6. 366. 
 
 (/■) Run. Eject. 402. (i) i Str. f'^i. 
 
 Dd
 
 402 Of the Damages and Costs in (^Chap. XIV. 
 
 If judgment be regularly signed, but without loss of trial, it may 
 be set aside on payment of costs, and taking notice of trial (a). 
 
 When the landlord is admitted defendant instead of the tenant, 
 the judgment is entered against the casual ejector with a stay of exe- 
 cution till further order : if the landlord be afterwards nonsuited for 
 not confessing lease, isfc. or if a verdict be given against him upon the 
 trial, the plaintiff must move for leave to take out execution against 
 the casual ejector (F) ; and the day of shewing cause against the mo- 
 tion is the proper time for the landlord to make his stand against the 
 plaintiff's taking out execution and getting into possession. It has 
 however been held, that he may bring a writ of error, which would 
 be a sufficient reason against taking out execution (c). 
 
 The plaintiff cannot have judgment against the casual ejector, till 
 common bail is filed. 
 
 When the plaintiff is nonsuited at the trial for want of the defend- 
 ant's confessing lease, Iffc. he is not entitled to sign judgment 
 against the casual ejector, till the postea comes in on the day in 
 bank {d). 
 
 Of the Damages. — The damages in ejectment are merely nominal, 
 the recovery of the term being the object of the action. 
 
 Where an action of ejectment and an action of assault and battery 
 were joined in the same writ, after verdict it was moved in arrest of 
 judgment", because the battery was joined with the ejectment, and 
 the damages being entire, the plaintiff could not release the damages 
 in the battery, to take judgment, and the execution in ejectment. 
 The reason is, that where the damages are entire, it does not appear 
 that the plaintiff recovered by any title in ejectment ; and therefore it 
 cannot be seen by the Court, whether those two actions were not 
 originally joined, in order that the plaintiff might have a recovery 
 in one to save his costs in the other. But where the damages are 
 given severally, it appears that the plaintiff had a title in both cases ; 
 and therefore if he release his damages in battery, which was mis- 
 joined with the ejectment, there is no reason why he should not take 
 his judgment in ejectment : for though the Court must judge the 
 joinder of the action to be bad, where it appears to be a contrivance 
 to save costs, which is the mischief of joining different actions ; yet 
 where there appears to be good cause in both cases, the joinder 
 of the action is cured by the release, for the plaintiff should have 
 judgment according to his right (e). 
 
 Of the Costs. — Incident to the judgment are the costs, or expenses 
 of the action, which are therefore, as next in order, to be treated of. 
 If the tenant do not appear, and judgment be consequently entered 
 against the casual ejector, the plaintiff has no other remedy for his 
 
 {a) Run. Eject. 40^. {b) a Burr. 757. {c) 4 Str. 1*41. 
 
 ((/) a T. R. 779. (<■) Run. Eject. 144.
 
 Sect. II.] the Action of Ejectment, S^r. 403 
 
 costs, than by his action for the mesne profits ; in which they are re- 
 coverable against the tenant, as consequential damages (a). 
 
 But if the tenant appear, and be made defendant, under the usual 
 terms of confessing lease, t3fc. and afterwards at the trial, refuses to 
 make that confession, he is liable, upon the rule by which he was 
 made defendant, to the payment of costs ; which if not paid, an 
 attachment lies against him : and this is all the remedy which the 
 plaintiff has for his costs if he be nonsuited by the defendant not con- 
 fessing lease, &c. If the tenant appear, confess lease, ilfc. and a 
 verdict be given against him upon the trial, the judgment is entered 
 against the tenant; on which judgment the plaintiff may take out 
 execution, as in ordinary cases : for this is not a case provided for by 
 the rule (b). 
 
 Where a verdict is given for the defendant, or the plaintiff be non- 
 suited for any other cause than that of not confessing lease, ^c. the 
 defendant must tax his costs on the posteuj as in other actions : and 
 sue out a capias ad satisfaciendum for the same against the plaintiff, 
 which he must shew, under seal, to the plaintiff's lessor, and at the 
 same time serve him with a copy of the consent rule 5 then if the 
 lessor being required, refuse to pay the costs, the Court, on motion, 
 will grant an attachment against him {c). 
 
 Though the plaintiff in ejectment be but nominal, yet if he be 
 not found, or be not able to pay the costs, the attorney is liable, and 
 may be committed until he pay them, or produce a sufficient plain- 
 tiff (^). 
 
 So, if a stranger carry on a suit in another's name, who has title, 
 and yet is so poor that he cannot pay the costs : in case he fail, the 
 Court, on affidavit of the circumstances, will order the person who 
 carried on the suit to pay costs to the defendant [e). 
 
 So, where baron and feme were lessors, and the baron died after 
 entering into the rule, the feme was notwithstanding held liable to 
 the payment of costs ; because they were to be paid by the lessors of 
 the plaintiff, and both of them were in the lease. ^ 
 
 If the plaintiff has a verdict in ejectment, and costs are taxed, and 
 an attachment issues for non-payment of them, the defendant shall 
 not have an ejectment against the plaintiff, in the same Court, till he 
 has paid those costs: and the Courts consider an ejectment in another, 
 in the same light as a former ejectment in the same Court ; and will 
 stay proceedings in a new ejectment till the costs of the former be 
 paid, as well where the former ejectment was in another, as where it 
 was in the same Court. 
 
 Proceedings in ejectment were stayed by the Court of Common 
 
 (o) Run. Eject. 144. {b) Ibid. 415- {c) Ibid. 416. {d) 6 Mod. 309. 
 {e) Run. Eject. 417. 
 
 Dd a
 
 404 Of the E.vecution in [Chap. XIV. 
 
 Pleas, after a long delay, the day before trial, till the costs of a for- 
 mer ejectment in the King's Bench were paid (a). 
 
 So, proceedings were stayed in an ejectment by a fraudulent assig- 
 nee of an insolvent debtor, till the costs of former ejectments brought 
 by the debtor himself were paid (b). 
 
 So, proceedings were stayed even till the costs were paid of a for- 
 mer ejectment, in which the lessor of the plaintiff never entered into 
 the consent rule (c). 
 
 Yet where a verdict in a former ejectment had been for the plain- 
 tiff, who upon the defendant bringing the action against him, prayed 
 for costs before he should be compelled to plead to the new action, it 
 was denied, because the verdict being for him, he had no vexation : 
 but if it had been against him, or he had been nonsuited, he should 
 not have brought another action before the costs of the first had been 
 paid, because it was a vexation to bring a new action (^). — No new 
 ejectment, however, can be brought by the defendant after a recovery 
 against him, till he has quitted the possession, or the tenant have at- 
 torned to the plaintiff (^). 
 
 Where the lessor of the plaintiff was in custody under an attach- 
 ment for non-payment of costs in a former ejectment, and brought a 
 new ejectment upon the same demise, the Court refused to stay pro- 
 ceedings therein, till the costs of the former should be paid {/). 
 
 In ejectment against several, the plaintiff has his election to pay 
 costs to which of the defendants he pleases (g). But if the defendants 
 fail, each of them is answerable for the whole costs (/6). 
 
 By Stat. 8^9 JV. 3. r. 1 1. in ejectment against several, if any one 
 or more is acquitted by verdict, he shall recover his costs against the 
 plaintiff, unless the Judge shall certify in open Court that there was 
 good cause for making such person a defendant. 
 
 This being an action of trespass, if the judge before whom it 
 is tried shall certify under his hand on the back of the record, 
 that the freehold or title of the land came chiefly in question, 
 though the damages are under 40X. there shall be the full costs. This 
 is enacted by stats. 43 £Iiz. c. 6. 21 J. i. c. \6. 22 ^ 23 C. 2. 
 c. 9. s. 136. 
 
 Of the ^xff«//o«.-- Touching the execution of the judgment, as the 
 plaintiff in ejectment recovers only the possession of the property in 
 question, execution of course is of the possession only {i). 
 
 The plaintiff having judgment to recover his term, may enter with- 
 out suing out a writ of execution, which is called an habere facias pos- 
 sessionem ; for where the land recovered is certain, the recoverer may 
 
 (a) a IJI. R. 1158. (i) Ibid. n8i. (0 Ibid. 904. (J) 4 Mod. 379. 
 (0 .S.ilk. 258. Run. Eject. 420. (/) Ibid. (s) i Str. 516. 
 
 (/j) Bull. N. r. 335. (') Run. ]'.jrct. 424. I Burr. 90. 2^<}.
 
 Sect. II.] the Action of Ejectment, ^c. 405 
 
 enter at his own peril, and the assistance of the sheriff is only to 
 preserve the peace (a). 
 
 The usual and regular way, however, is to make out a writ of ha- 
 bere facias possessionem ; which being engrossed, signed, and sealed, 
 and a pracipe being made out for it, is carried to the office of the she- 
 riff, who makes out a warrant thereon, and will put the lessor of the 
 plaintiff in possession (^). It has relation to the teste; therefore if 
 tested the last day of the preceding term, may be sued out though the 
 lessor of the plaintiff be since dead (^). 
 
 The plaintiff must take care not to take out execution for more 
 than he had right to recover : and in order that the sheriff may not 
 b'e under any difficulty in executing the writ of possession, the prac- 
 tice now is for the plaintiff himself not merely to point out to the 
 sheriff, that of which he is to deliver him possession, in execution of 
 the writ, but to take possession at his peril of that only to which he 
 has title*, for should he take more than he has recovered and shewn 
 title to, the Court will, in a summary way, set it right (f/). 
 
 Therefore, where the plaintiff in ejectment, as tenant in common, 
 recovered possession of five-eighths of a cottage, with the appur- 
 tenances, and a writ of possession was executed by the sheriff, who 
 turned the tenant out of possession of the whole and locked up the 
 door as appeared by affidavit. Curia. — This is wrong ; the writ ought 
 to have pursued the verdict. Let there be a rule upon the sheriff, 
 and the lessor of the plaintiff to restore the tenant to the possession 
 of three-eighth parts of the premises ; otherwise he would be forced 
 to bring another ejectment for the same [e). 
 
 If there are several messuages in possession of different tenants, 
 the sheriff must go to all their houses and turn them out : the deli- 
 very of the possession of one tenement in the name of ail, is not suf- 
 ficient (y). 
 
 The words of the writ being quod habere facias postessioneniy there 
 must be a full and actual possession given by the sheriff, and conse- 
 quently all power necessary for this end must be given him ; if there- 
 fore the recovery be of a house, the sheriff may justify breaking open 
 the door, if he be denied entrance by the tenant, because the writ can- 
 not be otherwise executed (^). 
 
 If the officer be disturbed in the execution of the writ, the Court 
 will, on affidavit of the circumstances, grant an attachment against 
 the party whether he be the defendant or a stranger, for a recent 
 ouster is a contempt ; and the process is not understood to be exe- 
 cuted completely, till the sheriff and his officers are gone, and the 
 plaintiff left in quiet possession (Jj). 
 
 (a) a Sell. Pract.aoa. {!>) Ibid, (c) 4 Burr. 1970. (,/) Run. Eject. 432, 
 
 1 Burr. 366. Ibid, 629. 5 Burr, 2673. (<-) 3 Wils. 49. (/) a Stil. Pr.Kt. 203. 
 
 a Roll. Abr. 886. is) 5 Co. 91. b. t^b) 6 Mod. 27. Salk. 322. 
 
 6
 
 406 Of the Ed'ecution in [Chap. XIV. 
 
 If therefore the sheriff turns out all persons he can find in the 
 house, and gives the plaintiff, as he thinks, quiet possession, and after 
 the sheriff is gone, some persons appear to be lurking in the house, 
 that is no good execution, and the plaintiff, it is said, shall have a 
 new habere facias possessionem (a). — The new v/rit cannot issue, until 
 the return of the first be expired (b). 
 
 An attachment was granted absolute in the first instance, against 
 the tenant in possession, on affidavit that he had been served with a 
 rule of Court made absolute for delivering up the possession, and had 
 refused so to do (c). 
 
 The law seems, however, to make a difference, where, after posses- 
 sion given either on the habere facias, or by agreement of the parties, 
 the plaintiff is turned out of possession by the defendant, and where 
 by a stranger. "When it is done by the defendant himself, the plain- 
 tiff may have either a new habere facias, or an attachment, because the 
 defendant shall never, by his own act, keep the possession which the 
 plaintiff has recovered from him by due course of law. But where a 
 stranger turns the plaintiff out of possession, after execution fully ex- 
 ecuted, the plaintiff is put to his new action j or to an indictment for 
 the forcible entry, by which means the force will be punished. — The 
 reason is, that the title was never tried between the plaintiff and tlie 
 stranger, who possibly may claim the land by a title paramount to 
 that of the plaintiff, or he may come in under him ; and then the 
 . recovery and execution in the former action ought not to hinder the 
 stranger from keeping that possession to which he may have a right. 
 Were the law otherwise, the plaintiff might, by virtue of a new ha- 
 bere facias, turn out even his own tenants who come in after the execu- 
 tion is executed, whereas the possession was given him only against 
 the defendant in the action, and not against those who were not parties 
 to the suit (d). 
 
 If the execution go to the sheriff for twenty acres, he must give 
 twenty acres, according to the common estimation of the country 
 where the lands lie (e). 
 
 As the plaintiff, however, is to shew the sheriff the premises to 
 which he has title and to take possession rightly at his peril, such a 
 very exact description is not necessary in this action, as in ^ praecipe. 
 An issue has been directed to try whether the sheriff had delivered 
 possession properly, according to the recovery (f). 
 
 At this day, the practice is, for the plaintiff to give the sheriff se- 
 curity to indemnify him from the defendant, and then for the sheriff 
 to give execution of what the plaintiff demands (g). 
 
 A judgment irregularly obtaineil was set aside, and tlic possession 
 
 (a) Leon. 145. (/;J Kill). I'^jcct. 43J. (.) 1 B!. R. 8y2. 
 
 (.1) I Kcb. 77';. 7«5, (.) Roll. R.410. (/) 1 Bun. j66. j Uuir. 267J. 
 
 (£) Run. Jjpci. 4J4.
 
 Sect. II.J tlie Action of Ejectment, ^c, 401 
 
 that had been given upon the execution ordered to be restored : but 
 the lessor of the plaintiff (who held the possession) absconding, the 
 rule became ineffectual ; whereupon it was moved on behalf of the 
 late tenants, for a writ of restitution ; which the Court awarded ac- 
 cordingly (a). 
 
 And the Court at their discretion will set aside a writ of possession 
 regularly executed, and let the landlord in to try, on suggestion of 
 collusion [l>). 
 
 If the plaintiff neglect to sue out his writ of possession for a year 
 and a day after judgment, he must revive the judgment by scire faciasy 
 as in other cases ; else the Court will award a restitution quare erro' 
 nice emanavit : unless the stay of execution be by consent of the 
 parties for the year, not for less time, com, sem. or the defendant 
 brings error and is afterwards nonsuited [c). 
 
 But if the delay be by injunction of the Court of Chancery, there 
 must be a scire facias ; for an injunction not being a matter of record, 
 a Court of law will not take notice of it ; unless the party has taken 
 out execution within the year, and continued it down by vicecomes non 
 misit breve, which may be done without a breach (d). 
 
 If the plaintiif" die within a year and a day, his executors cannot 
 take out execution without a scire facias ; for they are not parties to 
 the judgment : though if execution has been regularly sued out in 
 the lifetime of the testator, the sheriff may execute it after his death ; 
 because the authority is from the Court, and not from the party (^). 
 
 If after judgment and before execution, the defendant in ejectment 
 dies, and a scire facias goes, it must be against the terre tenants of 
 the land (and the heir may come in as terre-tenant,) and not against 
 the executor without naming him terre-tenant {f). 
 
 Where the landlord is admitted to defend on the tenant's non-ap- 
 pearance, and judgment is thereupon signed against the casual ejector, 
 with a stay of execution till further order, the lessor of the plaintiiF 
 having succeeded, must apply to the Court for leave to takeout execu- 
 tion ; and in such case, if a writ of" error be brought by the landlord, 
 it may be shewn for cause, and will be a sufHcient reason, against 
 taking out execution : but if the landlord omit the opportunity of 
 shewing it for cause, the execution is regular, and cannot be set 
 aside [g). 
 
 Where an ejectment was brought against a feme sole, who married 
 before trial, and a verdict and judgment was had against her in her 
 original name ; it was held to be regular to issue an habere facias pos- 
 sessionem znAferi facias against her in the same name, although the 
 feri facias was inoperative {h), 
 
 (a) 2 Sell. Pract. 204. (^) 5 Taunt. 205. (c) 2 Ld. Raym. 806. Salk. 258. s. c. 
 
 6 Mod. z88. a Sell. Pract. 204. . (<i} i Str. 301. Salk. 322. 6 Mod. 288. 
 
 (e) Run. Eject. 429. (/) 2 Sell. Pract. 204. Cio. Car. 295. 312= 
 
 (^) Tidd's Pract. 909. (4) 3 M. & S. 557.
 
 [ 408 ] 
 
 Of Ihe Wrt^i)jErrqr^^ ^ . 
 
 ,, .f By the consent rule, as has been before observed, the defendant un- 
 dertakes to appear and receive a declaration : the necessity, therefore, 
 of an original writ, if the proceedings are in the Common Pleas, is 
 superseded ; because as the tenant is to appear and receive a declara- 
 tion, he cannot take advantage of the want of an original, unless in a 
 writ of error : but when a writ of error is brought, the plaintiff must 
 file an original, unless it be after verdict, \vhen it is helped by stat. 38 
 Eliz. c. 14. [a). 
 
 As in the Common Pleas there is no need of an original, (which 
 also is the case in the King's Bench when the proceedings are by ori- 
 ginal,) so in the King's Bench, when the proceedings are by bill, there 
 is no necessity for a latitat^ or bill of ejectment ; but the party must 
 file bail before he can proceed. He must also file a bill of ejectment 
 besides the plea roll, in case a writ of error be brought, before errors 
 are assigned. The reason is, that the Court has no authority to pro- 
 ceed in ejectment by bill, unless the defendant be in custody ; there- 
 fore, by the rule, bail is ordered to be filed, that the Court may have 
 autliority to proceed {h). 
 
 The casual ejector cannot bring error, being a mere nominal per- 
 son ; that writ therefore can only be brought after the defendant has 
 appeared, and confessed lease, entry, and ouster [c). 
 
 So, if the landlord be permitted to defend, a writ of error cannot 
 issue in the name of the casual ejector {d). 
 
 But on a writ of error from an inferior , Court, in the name of the 
 casual ejector, the Court will not order a non pros, to be entered, 
 though his release of errors be shewn ; because inferior Courts are 
 not competent to proceed, as before observed, by a rule confessing 
 leasej ^c. {e). ^ r {Jq'^s ^f^ 
 
 So, if an infant be tenant in possession, and judgment be against 
 ■the casual ejector ; because no laches is imputable to an infant (y"). 
 ,l.-:>TiSe plaintiff having brought a writ of error in Parliament, the 
 Court obliged him to enter into a rule not to commit waste or destruc- 
 tion during the pendency of the writ. The defendant did not oppose 
 it ; and also justified (to 400/.) {g). 
 
 By Stat. 16 ^17 C. 1. c. 8. s, 7. it is enacted. That no execution 
 shall be stayed by writ of error upon any judgment after verdict in 
 ejectment, unless the plaintiff in error shall become bound in a rea- 
 sonable sum to pay the plaintiff in ejectment all such costs, damages, 
 and sums of money, as shall be awarded to such plaintiff' upon judg- 
 ment being affirmed, or on a nonsuit, or discontinuance had ; and in 
 case of affirmance, discontinuance, or nonsuit, the Court may issue 
 
 {«; Run, hjcci. 204. (i^) ll)id. (.) 2 '>tll- Pi-j(.l. 205. 2 Bun. 737. (/) Ibid, 
 
 (f) Run.Iijeci. 421. (/) Ibid. (^) 3 Bun. 1823.
 
 Sect. II.] (}f the J c lion of Fjectmeiit, <^'C. 409 
 
 a writ to inquire as well of the mesne profits, as of the damages by 
 any waste committed after the first judgment, and are therefore to 
 give judgment, and award execution for the same, and also for costs 
 of suit. 
 
 This *< reasonable sum" is generally double the rent {a). 
 
 Under this statute the defendant is intitled by law to his writ of 
 error, if he offers to become bound as the statute directs. 
 
 Therefore, where the lessor of the plaintiff swore that the defend- 
 ant was insolvent, and also that he, the lessor, had a mortgage upon 
 the land to more than it was worth, yet the Court held that the de- 
 fendant was entitled to his writ of error, he becoming bound in 
 double the rent [b). 
 
 The plaintiff in error in ejectment, is not bound to give the de- 
 fendant in error notice of his entering into recognizance pursuant to 
 16^17 Car. 2. c. 8. s. 3. to pay costs on affirmance ; nor is he re- 
 quired to find bail to join in the recognizance (<r). 
 
 Nothing shall be assigned for error that it will make it necessary 
 to go again into the title of the premises {d). 
 
 Of the Action of Fjectment where the Possession is va- 
 cant : — Where a Corporation is Lessor of the Plaintiff: 
 — and Where the Action is commenced in an iiferior 
 Court. 
 
 As the old method of proceeding in this action, by sealing a lease 
 on the premises, must still be resorted to in these cases, we have 
 thought proper to notice them as a detached article. 
 
 If the premises, the possession of which the plaintiff seeks to re- 
 cover, be empty, no declaration of course can be delivered or affida- 
 vit made of the delivery of it, and consequently the Court can- 
 not proceed to give judgment against the casual ejector {e). — In 
 such case therefore the old way of proceeding must be still pursued, 
 except in the single instance of landlord and tenant, provided for by 
 Stat. 4 G. 2. of which hereafter {f). 
 
 This is done by entering on the premises, and actually sealing a 
 lease thereon, either in person or by attorney. 
 
 If the former method is preferred, the proceeding is thus: 
 
 A. (the person claiming title) must go upon the land before the es- 
 soign day of the term, and there seal and deliver a lease to B, (any 
 friend of his, as tenant;) and at the same time deliver him posses- 
 sion. This being done, get C (any other friend) to go upon the pre- 
 mises, and turn out B. the tenant, by thrusting him off the premises; 
 
 (d) 7 ■I".uint.427. (h) 4 Burr. ijci. (0 7 Taunt. 427. {J) Hob, 5. 
 
 (<) Run. iLyxu 14^^. {J ) i Sell. Pract. 213.
 
 410 Of the Action of Ejectment [Chap. XIV. 
 
 and whilst he continues there serve him with a declaration in eject- 
 ment, in which make B. the tenant plaintiff, A. (the person claiming 
 title) the lessor, and C. (the actual ejector) the defendant, and de- 
 clare on the demise in the lease and subscribe a notice to appear {a). 
 
 The declaration is the same as usual, only the real persons are 
 made parties, instead of fictitious names (b). 
 
 In order to get judgment in the Court of King's Bench, an affida- 
 vit must be made of sealing the lease, and of the ouster by defendant, 
 and of all the facts. This is indorsed to move for judgment against 
 the casual ejector, and unless defendant appear and enter into the 
 common rule, judgment may be signed as on a common ejectment. — 
 In the Common Pleas, there is no need of any affidavit, nor any mo- 
 tion for judgment ; but on the first day of term, give a rule to plead 
 as in common actions, and if no appearance and plea, at the expira- 
 tion of the rule, sign judgment (c). 
 
 If the landlord, or person claiming title, does not wish to enter 
 himself and seal the lease, he may do it by attorney, and the pro- 
 ceedings are just the same ; the attorney acting as the principal land- 
 lord {d). 
 
 To warrant the above proceedings, the premises must be vacant ; 
 they must be wholly deserted by the tenant, and the lessor of the 
 plaintiff not be able to find out where the tenant is to serve him with 
 an ejectment. 
 
 Therefore, where the lessee of a public-house took another and re- 
 moved his goods and family, but left beer in the cellar ; rent being in 
 arrear, the landlord sealed a lease as on a vacant possession, delivered 
 an ejectment, and signed judgment, it was set aside, the lessee still 
 continuing in possession : and a case was mentioned, where leaving 
 hay in a barn at Hendoriy was held to be keeping possession. It fur- 
 ther appeared in this case, that the attorney for the plaintiff knew 
 whither the lessee removed, and might have served him personally, 
 which need not be done upon the premises.— So, in the case of a 
 renting ground, to which there is no house or barn, if it be known 
 where the tenant lives, he must be served (e). 
 
 In cases of a vacant possession, no person claiming title will be let 
 in by the Courts to defend, but he that can first seal a lease on the 
 premises must obtain possession. The person therefore claiming title 
 must resort to his new ejectment f). 
 
 But it is said that any person claiming title to the premises, and 
 who is usually admitted by the Court, may with leave appear and en- 
 ter into the common rule upon motion made for that purpose (g). 
 But qutere now ? 
 
 (j) a Sell. IVact. 213. {b) Ibid. ai4. (<:) Ibid. {J) Ibid. (f) % Sti. 1064. 
 
 (/) Bull. N. I', vj. (jj) Imp. Tract. K. B.537. » Sell. Pratt. 217. 
 
 7
 
 Sect. IL] where Possession is vacant. 4^ 1 
 
 Ejectment by a Corporation. — It was formerly held that when a cor- 
 poration was lessor of the plaintiff, they should execute a letter of at- 
 torney authorizing some person to enter and seal a lease on the land : 
 and then declare upon a demise by deed •, but these formalities are no 
 longer necessary, and the declaration may now be in the common 
 form. 
 
 If a corporation be aggregate of many, they may set forth the de- 
 mise in the declaration without mentioning the Christian names of 
 those who compose it ; but if the corporation be sole, the name of 
 baptism must be inserted ; as if the demise be by a bishop [a). 
 
 Proceedings in an inferior Court. — Where the proceedings are in an 
 Inferior Court, the plaintiff muse proceed by actually sealing a lease 
 on the premises, and the defendant tries the title in the name of the 
 casual ejector, to save expense : for inferior Courts are not competent, 
 to make rules to confess lease, entry and ouster, and If they were, 
 have no power to enforce obedience to them. It seems therefore, 
 that if the defendant in an Inferior Court enter into a rule to confess 
 lease, ^c. and the cause be removed by habeas corpus^ and the Judge 
 of the inferior Court grant an attachment against the defendant for 
 disobedience to the rule, the superior Court will grant an attachment 
 against the Judge for exceeding his authority and obstructing the 
 course of the superior Court [a). 
 
 If an habeas corpus be brought to remove a cause In ejectment out 
 of an Inferior Court, the lands lying within their jurisdiction, and 
 the lessor of the plaintiff seal a lease on the premises, the Courts 
 above will grant a procedendo ; because the title to the land Is local, 
 and therefore properly within the jurisdiction of the Court below, 
 where, if it proceed regularly. It will not be prohibited : but if the 
 lessor has not sealed a lease on the premises, the Courts above will 
 not grant ?i procedendo (a). 
 
 So, If an ejectment be commenced in an inferior Court, and an 
 habeas corpus be brought to remove it, and the plaintiff In ejectment 
 declares against the casual ejector : there may be a rule to confess 
 lease, ^c, as if he had originally declared In the Court above, and 
 the Court will not grant a procedendo [a). 
 
 If the lands lie partly within the cinque ports, and partly without, 
 the defendant cannot plead the jurisdiction of the cinque ports, above ; 
 for though the land be local, yet the demise is transitory, and triable 
 any where : and therefore though the plaintiff may lay his action for 
 that which lies within an inferior jurisdiction In the Court below, if 
 he take proper measures for the purpose, yet if he will proceed In a 
 superior Court, as the demise is transitory, the defendant cannot 
 
 (a) Run. Eject, ijo, 151, 152.
 
 412 Of the Action for Mesne Projits, [Chap. XIV. 
 
 stop his proceeding, because those Courts have competent jurisdic- 
 tion (a). 
 
 Section III. Of the Action for Mesne Prof is. 
 
 An ejectment being a feigned action, brought against a nominal de- 
 fendant, and generally on a supposed ouster, is not a proper action 
 for mesne profits, the action for which is wholly dependent upon 
 facts ; being brought against the real tenant, for profits which he has 
 actually received. In the one case, therefore, the damages are merely 
 nominal •, in the other, they are such as the plaintiff has sustained by 
 a real injury ; and the fiction in the former, does not, in any manner, 
 affect the latter (^ ). The verdict in ejectment having, in fact, estab- 
 lished the right of the plaintiff from the time that his title accrued, 
 the defendant is a trespasser, and the plaintiff is entitled to recover 
 from him damages fpr his unjust possession, equal to the value of the 
 lands during that time ; though this point is not settled, but the 
 quantum depends upon circumstances (c). 
 
 This action, therefore, results from the recovery in ejectment : it is 
 an acti'de of trespass vi et armis, brought by the lessor of the plain- 
 tiff, in his ,<^n name, or in the name of the nominal lessee (for it 
 may be broiiglK in that of either) against the tenant in possession, to 
 recover th^value of profits unjustly received by the latter, in conse- 
 quence of the ouster complained of in the ejectment [d). — It is usually 
 brought by the lessor of the plaintiff in his own name, and in that 
 case, on proving a good title in himself and an actual ouster and per- 
 ception 6f profits by the defendant antecedent to the demise and 
 ouster in ejectment, he will recover damages for those profits : they 
 are seldom, however, an object of litigation, as the demise and ouster 
 are generally laid soon after the time when the lessor's title accrued. 
 
 But the plaintiff is not bound to claim the mesne profits, only from 
 the time of the demise ; for if he prove his title to have accrued be- 
 fore that time, and proves the defendant to have been longer in pos- 
 session, he shall recover antecedent profits (e). 
 
 In such case, however, the defendant will be at liberty to contro- 
 vert the title, which he cannot do in case the plaintiff" do not go for 
 more time than is contained in the demise \ because being tenant in 
 possession, he must have been served with the declaration, and there- 
 fore the record is against him conclusive evidence of the title j but 
 against a precedent occupier the record is no evidence, and therefore 
 against such an one it is necessary for the plaintiff to prove his title, 
 
 (a) Run. lijctt. iji. (i) Ibid. ii:,8. (t) .) Bl- Com. 205. (,/) Run. J^jtct. 438. 
 (/■) Bull. N. r. 8;.
 
 Sect. III.] Of the Action for Mane Profits. 413 
 
 and also to prove an actual entry, for trespass being a possessory ac- 
 tion, cannot be maintained without it [a). 
 
 Yet as to actual entry, it may admit of doubt, what proof is suffi- 
 cient {b). — It has been said that the plaintiff is entitled to recover 
 the mesne profits only from the time he can prove himself to have 
 been in possession, and that thei'efore if a man make his will and die, 
 the devisee will not be entitled to the profits till he has made an actual 
 entry : for that none can have an action for mesne profits unless in 
 case of actual entry and possession {c). Others have holden (d), that 
 when once he has made an actual entry, that will have relation to the 
 time his title accrued, so as to entitle him to recover the mesne profits 
 from that time ; and they say, that if the law were not so, the Courts 
 would never have suffered plaintiffs in ejectments to lay their demises 
 back in the manner they now do, and by that means entitle them- 
 selves to recover profits, to which they would not otherwise be enti- 
 tled : beside, the Court will intend every thing possible against the 
 defendant (<?). 
 
 Supposing, however, that a subsequent entry has relation to the 
 time that the plaintiff's title accrued, yet certainly the defendant may 
 plead the statute of limitations, and by that means protect himself 
 from all but the last six years {f). 
 
 If one tenant in common recover in ejectment against thp Q^tt^jxQ 
 may maintain trespass for the mesne profits (^). ,,-i ^,' . .,„ 
 
 Any one in possession of the premises after a recovery of them by 
 action of ejectment is a trespasser and as such liable to damages, and 
 he cannot cover himself under the licence of the defendant in eject- 
 ment, for no man can license another to do an illegal act. In a case 
 where Sellorty Serjt. moved for a new trial, it appeared that the plain- 
 tiff" by an action of ejectment had evicted one Mitchel (who had been a 
 tenant of his under an agreement for a lease), and had since brought 
 an action against the present defendant, in which he had declared first 
 in trespass quare clausum fregity and in another count for money had 
 and received, being in fact for the mesne profits. Sellon for the present 
 defendant contended, that his client being in possession merely as the 
 agent of Mitchel, who was in prison, was not liable to any action of 
 trespass nor for the mesne profits, Mitchel himself being the only party 
 to be looked to. But Lord Kenyan observed, that the plaintiff" having 
 recovered in ejectment against his tenant, any other party in possession 
 was liable to be deemed a trespasser, and that, in an action of trespass, 
 damages ought to be given, though not amp^ntjing c^ijij^tq.,tp^lf|}e^i^esne 
 profits. Rule refused [h). ,;,,,n .!^.i,rsh',isTq i; nuij.:--:. 
 
 If the action be brought in the name of the nominal "plaintiff^ the 
 
 (a) Bull. N. P. 87. (/J) Ibid. (OiVes.349- (</) 5 Mod.384. 
 
 (<r) 3 Wils. lai. (/) Bull.N,P.88. (^) 3 Wils. izi. (/.) Girdlestone v. 
 
 Porter, K. B. M. T. 39 G. 3. MSS. ^
 
 414 Of the Action for Mesne Profits. [Chap. XIV. 
 
 Court, on application, will stay the suit till security be given for 
 answering the costs ; but will not permit such a plaintiff to release 
 the action ; his release therefore has been set aside as a contempt of 
 Court : and there is no distinction between a judgment in ejectment 
 upon a verdict, or by default ; for in the one case, the right of the 
 plaintiff is tried and determined against the defendant, and in the 
 other it is confessed {a). 
 
 This action may be brought pending a writ of error in ejectment, 
 and the plaintiff may proceed to ascertain his damages, and sign his 
 judgment ; but the Court will stay execution till the writ of error be 
 determined (b). 
 
 If the defendant bring a writ of error on the verdict against him in 
 ejectment, and enter into a recognizance pursuant to the statute i6 & 
 17 C. 2. c, 8. to pay costs, the plaintiff on judgment in his favour on 
 the writ of error, need not bring a scire facias or action of debt on 
 the recognizance, but may sue out an elegit or writ of inquiry, to 
 recover the mesne profits since the first judgment in ejectment (c). 
 
 The defendant in this action may be held to bail. 
 
 The declaration in this action for mesne profits must expressly state 
 the several parcels of land, l^c. from which the profits arOse, or the 
 defendant may plead the common bar {d). 
 
 The defects in a declaration in an action for mesne profits, In not 
 stating any time when the defendant broke and entered the messuage, 
 l2fc. and ejected the plaintiff from the occupation of it ; and In stating 
 only that the defendant kept and continued the plaintiff so ejected for 
 a long space of time, without stating how long, are cured by the 
 operation of the stat. 4 Ann. c. 16. after judgment by default, and a 
 writ of inquiry of damages executed, so that no objection can be 
 taken In arrest of final judgment for such defect in form {f). 
 
 In trespass for the mesne profits against the tenant in possession 
 after a recovery In ejectment by default against the casual ejector, the 
 tenant cannot pay the money into Court, for the action is for a tortious 
 occupation from the time the tenant had notice of the title of the 
 lessor of the plaintiff (y). 
 
 In trespass against the tenant In possession for mesne profits, either 
 by the lessor or the nominal plaintiff, after recovery In ejectment the 
 plaintiff need not prove a title ; but It is sufficient to produce the 
 judgment in ejectment and the writ of possession executed, and to 
 prove the value of the profits, and thereupon he shall recover from 
 the time of the demise laid in the declaration (^). 
 
 But if the judgment has been against the casual ejector, and no 
 writ of possession executed, the defendant in possession may contro- 
 
 (a) Run. Eject. 439. Bull. N. P. 89. (i) * Sell. Pract. 226. (0 Ibid. 
 
 (</) aCromp. Pract. 123. {e) 13 E.ist, 407. (/) * Wils. 115. 
 
 aj Bull. N. P. 87. 3 Wils. lai. I T. R. 387.
 
 Sect. III.] Of the Actionfor Mesne Profits. 415 
 
 vert the title, if he has not been made a defendant in the ejectment 
 and had a verdict against him, and therefore the recovery in ejectment 
 is not against him conclusive evidence {a). 
 
 Where premises are in the possession of a tenant, and there is a 
 judgment in ejectment against the casual ejector in an action for mesne 
 profits and costs of ejectment agariist the landlord, the judgment in 
 ejectment is no evidence against him without proof that he had notice 
 of the ejectment, so that he might have come in to defend it ; but a 
 subsequent promise by him to pay the rent and costs amounts to an 
 admission that he is liable to the action {b). 
 
 In an action for mesne profits for one year, the declaration con- 
 tained other counts for destroying fences, to which a justification was 
 pleaded, and upon a new assignment, the general issue. An examined 
 copy of the judgment in ejectment was proved. The trespass in re- 
 spect to the fences was also proved, but the Judge {Runmngton, Serjt.) 
 being of opinion, that as it was committed while the defendant was 
 in possession as tenant, the action was misconceived for that part, the 
 jury by his direction gave no damages in respect thereof. — A rule for 
 a new trial was obtained on the ground of the trespass having been 
 committed after the defendant had ceased to be tenant to the plaintiff 
 and after the recovery in ejectment ; but that not appearing to be the 
 fact, from the report as it was read from the Judge's note, the rule 
 for a new trial was discharged (r). 
 
 A recovery in ejectment against the wife cannot be given in evi- 
 dence against the husband and wife for mesne profits : for in such 
 case thfere is no evidence of the trespass but the judgment in eject- 
 ment ; and the wife's confession of a trespass committed by her can- 
 not be given in evidence to affect the husband in an action in which 
 he is liable for the damages and costs {d). 
 
 Bankruptcy is no plea in bar to an action for mesne profits ; for the 
 damages occasioned by the tort are uncertain (e). 
 
 Where, after a recovery in ejectment and before an action of tres- 
 pass for mesne profits, the defendant became a bankrupt, and the jury 
 did not include the costs of the ejectment in their verdict in executing 
 a writ of inquiry in the action for mesne profits, the Court refused 
 to set aside the inquisition, because the plaintiff might have proved 
 the costs as a debt under the defendant's commission of bankrupt (f). 
 
 Touching the quantum of damages given by the jury in this action, 
 they are not to be bound by the amount of the rent, but may give 
 extra damages : indeed four times the value of the mesne profits have 
 been known to be given in this sort of action of trespass (g) ; and 
 after judgment, by default, the costs in ejectment being recoverable 
 
 (a) % Str, 960. {b) 3 Camp. 455- (0 M. T. 41 G. 3. T.'s MSS. 
 
 {d) 7 T. R. XX2. (e) Doug. 584. (/) a T. R.a6i. 
 
 (J) 3 Wils. lai.
 
 416 Of a seco7id Action of Ejectment. [Cliap. WW 
 
 arc usually declared for as damages in this action for mesne pro- 
 fits {a). 
 
 The plaintifF can recover no farther costs in this action than were 
 taxed in the ejectment, if it were regularly defended : but it is other- 
 wise if judgment was against the casual ejector (b). 
 
 The nominal plaintifF in ejectment, in whose name the mesne 
 profits have been recovered, may sue for an escape of the defendant 
 in execution for such mesne profits [c). 
 
 /I Section IV. Of a second Action of Fjectment. 
 
 A judgment in ejectment, it may be remembered, is a mere reco- 
 very of the possession without prejudice to the right. It, therefore, is 
 not final between the parties so as to protect either the defendant or 
 plaintifF (if he succeeds) from any further suit; for the same plaintifF, 
 if he be nonsuited, or have a verdict against him, may bring another 
 ejectment against the same defendant, or if he succeeds in the action 
 and gets possession, he is still liable to an ejectment from the defen- 
 dant in the former action (d). 
 
 This in one respect may be deemed an advantage, because the par- 
 ties are not concluded by one trial, in case the real merits (from acci- 
 dent, partiality, want of evidence, which might be afterwards sup- 
 plied, or the like) happened not to have been fairly tried between 
 them : but in another respect, much mischief may result from it, as 
 the spirit of litigation is thereby kept alive {e). 
 
 The reason why an action of ejectment is not or cannot be final 
 seems to be this : That it is impossible, from the structure of the 
 record in this action, to plead a former in bar of another ejectment 
 brought; because, i. The plaintifF and defendant are nominal and 
 exist in most cases on record only, and consequently may be changed 
 in a new action ; but the identity both of plaintifF and defendant must 
 be averred in pleading a former action in bar(y). 2. The term 
 demised may be laid many different ways. It has sometimes, indeed, 
 been attempted in Chancery, after three or four ejectments, by a bill 
 of peace to estabUsh the prevailing party's title, yet it has always been 
 denied, for every termor may have an ejectment, and every ejectment 
 supposes a new demise, and the costs in ejectment are a recompence 
 for the trouble and expense to which the possessor is put. — But where 
 the suit begins in Chancery for relief touching pretended incumbrances 
 on the title of lands, and that Court has ordered the defendant to. 
 pursue an ejectment at law, there after one or two ejectments tried, 
 and the right settled to the satisfaction of the Court, the Court has 
 ordered a perpetual injunction against the defendant, because there 
 
 {a) Uull. N. \\ 88. (i) I F.sp. R. ys"^,. (0 ^ M. .^ S. 47.3. 
 
 ((/) » Sell. Pract. tjo. (/) Ibid. (/) 4 luinonnis, 189-
 
 Sec t. 1 1 1 . 1 Of ti second Action of FJectment, * 1 7 
 
 the suit is first attached in that Court, and never began at law (a) ; 
 and such precedent incumbrances appearing to be fraudulent, and in- 
 equitable against the possession, it is within the compass of the Court 
 to relieve against it (^). 
 
 As the costs of the ejectment are deemed the recompence as above 
 stated (though in truth but a poor one) the Court will not suffer either 
 the plaintiff to bring a nevjr ejectment, or the defendant to bring an 
 ejectment against the successful plaintiff, until the costs of the former 
 action are paid. — The Courts now consider a former ejectment in 
 another Court, as one in the same Court, and will stay proceedings in 
 a second till the costs of the former are paid(c). 
 
 So, though in such former ejectment the lessor of the plaintiff never 
 entered into the consent rule : and where a rule for a new trial was 
 obtained on the ground of the plaintifFhaving been nonsuited by reason 
 of his inability to prove that the defendant had entered into the 
 common rule to defend as landlord, the Court said, that as there had 
 been a slip in the plaintiff not being able to prove the rule under 
 which the defendant was let in to defend, though no blame was im- 
 putable to him as the objection could not be foreseen, yet the new 
 trial must be on the common terms of payment of costs [d). — So, when 
 an ejectment was brought by a fraudulent assignee of an insolvent 
 debtor, the former lessor being plaintiff.— So, proceeding was stayed 
 in error and a second ejectment, the plaintiff not being able to shew 
 that the writ of error was brought with any other view than to delay 
 payment of costs (e). 
 
 The remedy to enforce the payment of costs, after verdict is by at- 
 tachment. — But where the lessor of the plaintiff has been taken into 
 custody upon an attachment for costs, which is in the nature of a 
 capias ad satisfaciendum, there is no reason to grant the rule to stay 
 proceedings in another action brought by the same lessor on the same 
 demise {f). 
 
 So, where before trial a mistake is discovered, so as to render it 
 necessary to serve a new ejectment, the Court will not stay proceed- 
 ings till the costs of the first are paid; unless the party has been vexa- 
 tious, or great expense has been incurred. 
 
 But if the lessor of the plaintiff be not known, the Court will order 
 notice to be given where he may be found. — So, if he abandons his 
 ejectment in one Court and brings a new action in the other {g). 
 
 Proceedings in a second ejectment were stayed till the special 
 verdict in the former was determined {Jo). 
 
 When the plaintiff succeeds in an ejectment, the defendant cannot 
 
 {a) 2 Sell. Pract. 330. (h) 1 Str. 404. W » Sell. Pract. Z31, 
 
 (</) 2 Bl. R. 904. Doe d. Shutc v. Dyke, M. T. 40 G. 3. K. B. T.'s MSS. 
 (*) Ibid. n8o. 1 Str. 554. (/) » Sell. Pract. 23a. C^-^ 2 Str. 681. 1099. 
 
 JIM. 1 T. R. 49«. (fi) a Str. noj. 
 
 Ee
 
 418 Of the Action of Ejectment upon [Chap. XIV. 
 
 bring a new ejectment against him, until he has delivered up posses- 
 sion, or the tenants in possession have attorned : and, it should seem, 
 till he has also paid the costs of the former action {a). 
 
 The Court will not give the plaintiff leave to discontinue after a 
 special verdict has been had, in order to adduce fresh proof in con- 
 tradiction to the verdict {b). 
 
 Section IV. Of the Action of Ejectment upon the Statute 
 4 G. 2. c. 28. s. 2. 
 
 By the common law an actual entry, by the person claiming title to 
 lands and tenements, was necessary to be made in order to support an 
 action of ejectment ; but in the case of a lease, the landlord could not 
 enter and take the actual possession until the lease was expired : it 
 therefore became usual to insert a proviso that in case the rent of the 
 demised premises was behind and unpaid at a certain time, the lessor 
 should have a right to re-enter. In parol demises, however, from 
 year to year, the landlord could not have the benefit of such a proviso ; 
 and when the right of re-entry subsisted, great inconvenience fre- 
 quently happened to lessors or landlords in cases of re-entry for non- 
 payment of rent ; by reason of the many niceties that attended such 
 re-entries at common law, and even when a legal re-entry was made, 
 the landlord or lessor was put to the expense and delay of recovering 
 in ejectment before he could obtain the actual possession of tbe.de- 
 mised premises {c). — It is therefore enacted, ;§hi/i riaoij 
 
 By the 4th G. 2. c. 28. s. 2. " That in all cases between landlord 
 and tenant, as often as it shall happen that one half year's rent shall 
 be in arrear, and the landlord or lessor to whom the same is due, hath 
 right by law to re-enter for the non-payment thereof ; such landlord 
 or lessor shall and may, without any formal demand or re-entry, 
 serve a declaration in ejectment for the recovery of the demised pre- 
 mises ; or in case the same cannot be legally served, or no tenant be 
 in actual possession of the premises, may then affix the same upon the 
 door of any demised messuage ; or in case such ejectment shall not be 
 for the recovery of any messuage, then upon some notorious place of 
 the lands, tenements, or hereditaments, comprised in such declaration 
 in ejectment, and such affixing shall be deemed legal service thereof; 
 which service or affixing such declaration in ejectment shall stand in 
 the place and stead of a demand and re-entry; and in case of judg- 
 ment against the casual ejector, or nonsuit, for not confessing a lease, 
 entry, and ouster, it shall be made appear to the Court, where the 
 said suft is depending, by affidavit, or be proved upon the trial, in 
 case the defendant appears, that half a year's rent was due before the 
 
 (.7) a S^lk. 258, .;. (i) 2 Bl. R. 815, (0 Paul's! hapd, Sec. Lawy. 149.
 
 Sect. IV.] the Statute 4 G. 2. c. 28. s. 2. 419 
 
 said declaration was served; and that no sufficient distress was to be 
 found on the demised premises countervailing the arrears then due, 
 and that the lessor or lessors in ejectment had power to re-enter, in 
 every such cnse, the lessor or lessors in ejectment shall recover judg- 
 ment and execution in the same manner as if the rent in arrear had 
 been legally demanded and a re-entry made : and in case the lessee or 
 lessees, his, her, or their assignee or assignees, or other person or 
 persons claiming or deriving under the said lease, shall permit and 
 suffer judgment to be had and recovered on such ejectment and exe- 
 cution to be executed thereon without paying the rent and arrears, to- 
 gether with full costs, and without filing any bill or bills for relief in 
 equity within six calendar months after such execution executed; then 
 such lessee, ^c. and all others claiming and deriving under the said 
 lease, shall be barred or foreclosed from all relief in law or equity, 
 other than by writ of error for reversal of such judgment in case the 
 same shall be erroneous ; and the said landlord and lessor shall from 
 thenceforth hold the said demised premises discharged from such lease: 
 and if on such ejectment, verdict shall pass for the defendant, or the 
 plaintiff shall be nonsuited therein, except for the defendant's not 
 confessing, i^c. then such defendant shall recover his, her, or their 
 ■full costs." 
 
 Proviso as to Mortgagees. — " Provided always, that nothing herein 
 contained shall extend to bar the right of any mortgagee or mortga- 
 gees of such lease, or any part thereof, who shall not be in possession, 
 so as such mortgagee or mortgagees, within six calendar months after 
 such judgment obtained and execution executed, pay all rent in arrear, 
 and all costs and damages sustained by such lessor, or persons entitled 
 '40 the remainder or reversion as aforesaid, and perform all the cove- 
 
 '•' 'irl«ints and agreements which on the part and behalf of the first lessee 
 
 ^^f<^ lessees, ought to be performed." 
 ■'■ Of Proceedings in Equity. — By sect, 3. " In case the said lessee or 
 lessees, his, her, or their assignee or assignees, or other person, 
 claiming any right, title, or interest, in law or equity, of, in, or to 
 the said lease, shall, within the time aforesaid, file one or more bill 
 or bills for relief in any Court of equity, such person or persons shall 
 not have or continue any injunction against the proceedings at law on 
 
 ' such ejectment, unless he, she, or they within forty days next after 
 
 ^a full and perfect answer shall be filed by the lessor or lessors of the 
 
 plaintiff in such ejectment, bring into Court, and lodge with the 
 
 ^proper officer, such sum of money, as the lessor or lessors of the 
 
 < "■^tainttff in the said ejectment shall, in their answers, swear to be due 
 'and in arrear, over and above all just allowances, and also the costs 
 
 -■taxed in the said suit ; there to remain till the hearing, or to be paid 
 
 .i'n6ut to the lessor or landlord, on good security, subject to the decree 
 pf the Court ; and in case such bill or bills shall be filed within the 
 
 Ee 2
 
 420 Of the Action cfFjechnent upon [Chap. XIV. 
 
 time aforesaid, and after execution is executed, the lessor or lessors 
 of the plaintiff shall be accountable only for so much, and no more, as 
 he, she, or they shall really and bond fide^ without fraud, deceit, or 
 wilful neglect, make of the demised premises, from the time of their 
 entering into the actual possession thereof ; and if what shall be so 
 made by the lessor or lessors of the plaintiff, happen to be less than 
 the rent reserved on the said lease, then the said lessee or lessees, his, 
 her, or their assignee or assignees, before he, she, or they shall be 
 restored to his, her, or their possession or possessions, shall pay such 
 lessor or lessors, landlord or landlords, what the money so by them 
 made fell short of the reserved rent, for the time such lessor or lessors 
 of the plaintiff, landlord or landlords, held the said lands." 
 
 Sect, 4. " Provided that if the tenant or tenants, his, her, or their 
 assignee or assignees, shall at any time before the trial in such eject- 
 ment, pay or tender to the lessor or landlord, his executors or admi- 
 nistrators, or his, her, or their attorney in that cause, or pay into the 
 Court where the same cause is depending, all the rent and arrears, to- 
 gether with the costs ; then all further proceedings in the said eject- 
 ment shall cease and be discontinued ; and if such lessee, ^c. or their 
 executors, administrators, or assigns, shall, upon such bill filed as 
 aforesaid, be relieved In equity, he, she, and they shall have, hold, 
 and enjoy the demised lands according to the lease thereof made, with- 
 out any new lease to be thereof made to him, her, or them." 
 
 Intent of the Statute. — The statute relates to ejectment for non-pay- 
 ment of rent, only where the landlord has a right to re-enter. — The 
 true end and professed Intention of the Act of Parliament is to take off 
 from the landlord the inconvenience of his continuing always liable to 
 an uncertainty of possession from its remaining in the power of the 
 tenant to offer him a compensation at any time, in order to found an 
 application for relief in equity ; and to limit and confine the tenant to 
 six calendar months after execution executed for his doing this : or 
 else that the landlord should from thenceforth hold the demised pre- 
 mises discharged from the lease (a). 
 
 Courts of law always lean against forfeitures, as Courts of equity 
 relieve against them : therefore, whenever a landlord means to take 
 advantage of any breach of covenant so as that it should operate as a 
 forfeiture of the lease, he must take care not to do any thing which 
 may be deemed an acknowledgment of the tenancy, and so operate as 
 a waiver of the forfeiture : as distraining for the rent, or bringing an 
 action for the payment of it, since the forfeiture accrued ; or accept- 
 ing such rent. 80, an action for double rent on the same statute, 
 will be barred by an acceptance of rent {b). 
 
 Therefore, where an ejectment has been brought on the stat. 4 G. 2. 
 
 (•) 1 Ilurr. 619. (A) Bull. N. P. 96. Cowp. 347. Co. 64. 
 
 8
 
 Sect. IV.] the Statute 4 G. 2. c. 28. s. 2. 421 
 
 c. 28. s. 1. for the forfeiture of a lease, there being half a year's rent 
 in arrear, and no sufficient distress on the premises: acceptance of 
 rent afterwards by the landlord, has, it seems, been held a waiver of 
 the forfeiture of the lease ; which may well be ; for it is a penalty, 
 and by accepting the rent, the party waives the penalty. — Such ac- 
 ceptance of rent however must be with the knowledge of the for- 
 feiture having been incurred, for otherwise it docs not manifest any 
 intention in the landlord to continue his tenant (a). 
 
 But though the tenant has incuired a forfeiture under tlie statute, 
 yet he may stay proceedings either by tendering the rent before eject- 
 ment is delivered, or by moving for leave to pay into Court all the 
 rent due and costs, any time before the writ of possession is executed, 
 even after judgment against the casual ejector {b). 
 
 Or it may be done by summons in vacation time. 
 
 Before the statute, proceedings would be stayed on bringing the 
 rent in arrear and costs into Court, in an action whether of covenant 
 or debt for rent : and it is not now confined to actions under the 
 statute {c). 
 
 For, where in ejectment by a landlord, the tenant moved to stay 
 proceedings upon payment of rent, arrears and costs. On a rule to 
 shew cause, it was insisted for the plaintiff that the case was not 
 within the Act, for that it was not an ejectment founded singly on 
 the Act, but that it was brought likewise on a clause of re-entry in 
 the lease for not repairing, and the lease was produced in Court : 
 however the rule was made absolute, with liberty for the plaintiff to 
 proceed upon any other title {d). 
 
 Where the rent was tendered before notice of the action, the pro- 
 ceedings were set aside for irregularity ; and the landlord having given 
 directions respecting the matter to his attorney, was held to amount to 
 nothing {e). 
 
 The lessors of the plaintiff were both devisees and executors, and 
 in each capacity rent was due to them. The defendant moved to stay 
 proceedings on payment of the rent due to the lessors of the plaintiff 
 as devisees, they not being entitled to bring an ejectment as executors. 
 There appeared to be a mutual debt due to the defendant by simple 
 contract, and the defendant offered to go into the whole account, 
 taking in both demands as devisees and executors, having just allow- 
 ances ; which the lessors of the plaintiff refused. The rule was 
 made absolute to stay proceedings on payment of the rent due to the 
 lessors as devisees, and costs (/"). 
 
 An insertion in the proviso of a lease, that the right of. re-entry 
 shall accrue upon the rent being lawfully demanded, will not render a de- 
 mand necessary if there be no sufficient distress ; for it is only stating 
 
 (tf) Cowp. t47. (*) a Bl. R. 746. a Str.900, (<) % Sell. Pract. aio. Salk. 597. 
 
 {/) Bull. N. p. 97. (0 a Bl. R. 747. (/) Barn. 184. a Sell. Pr^cf. aii.
 
 422 Of the Aclion of Ejeciment^ 3^'c, [Cliap. XIY^^ 
 
 in express words, that which is in substance contained from the J>rin-i 
 ciples of the common law in every proviso of this nature [a). 
 
 Ejectment may be maintained on a clause of re-entry without an 
 actual entry upon the land (b). 
 
 In moving for judgment upon a declaration in ejectment delivered, 
 or (in case of no tenant) affixed to the premises, according to the 
 statute, the Courts require an affidavit that half a year's rent was in 
 arrear before declaration served, that the lessor of the plaintiff had a 
 right to re-enter, that no sufficient distress was to be found on the 
 premises countervailing the arrears of rent then due, that the pre- 
 mises were untenanted, or that the tenant could not be legally served 
 with the declaration (as the case is), and that a copy of the declara- 
 tion was affixed on the most notorious (stating what) part of the pre- 
 mises : else the Court will not grant a rule for judgment. — This affi- 
 davit is necessary only upon moving for judgment against the casual 
 ejector, or after a nonsuit at the trial for the tenant's not confessing 
 lease, entry, and ouster. 
 
 For, if the tenant appears, and the ejectment comes to trial, the 
 matters averred in the above affidavit must be proved upQ;|.^^|^e 
 trial (f). .,' ., 
 
 Note. The affidavit is necessary only in proceeding under the 
 statute, but not on the common law proceeding (J). 
 
 The declaration in ejectment is prepared in the usual way, taking 
 care to lay the demise after the forfeiture accrued {e). 
 
 The late tenant or other person, claiming title to the premises, has 
 the same time to appear in as is allowed to tenants in possession {f). 
 
 After appearance the proceedings are the same as in other cases , 
 therefore in case of no appearance, the plaintiff moves for judgment 
 against the casual ejector on the affidavit above-mentioned, and pro- 
 ceeds as in ejectments at common law (g). 
 
 Thus, where the case comes within the statute, there is no occasion 
 for tlie landlord to make an actual entry and seal a lease on the pre- 
 mises : which, as we have before shewn, must be done in all other 
 cases, where the premises are untenanted, nor is there any occasion to 
 prove at the trial any actual entry or ouster ; for if the defendant ap- 
 pear, the common consent rule is sufficiently binding (/j). 
 
 The affidavit will in some cases be presumed j as after a long and 
 quiet possession. 
 
 Thus where an ejectment was brought by a landlord against his te- 
 nant, under this statute, and judgment was had against the casual 
 ejector by default, and possession thereupon delivered, and nearly 
 twenty years after, the tenant brought an ejectment against the same 
 landlord for the same premises. The landlord, who was made defcnd- 
 
 (,.) 4 M. & y. jaj. (*) D.nig. 485. biilk. Z59. Bull. N. P. 101. (.) r Buir.6i6. 
 (yj Ibid. 6l». (^) aSclLrraci. ai2. (y J Ibid. (^0 Il'id. (*) Doug. 483,
 
 Sect. V.2 Of the Remedy for the Landlord^ i^c. 423 
 
 ant in the latter action, was not obliged to produce such an affidavit as 
 this clause requires, as an essential requisite previous to his original re- 
 covery ; for as it was essentially requisite, the Court presumed that 
 such affidavit was regularly made at the time, and that the judgment 
 was founded on it {a). 
 
 The landlord's remedy for rent in arrear, is by action for the mesne 
 profits, which as has been before observed, is consequent to the action 
 of ejectment, whereby the possession only is recovered {h). 
 
 If one pretending to have title to land give security to the tenants 
 to save them harmless upon paying him the rent, and afterwards ano- 
 ther recover in ejectment against them, they have no remedy upon 
 the security until recovery of the mesne profits (f). 
 
 Section V. Of the Remedy for the Landlord^ under 
 the Statute 11 G. 2. c. 19. where the Premises are 
 vacant. 
 
 The injury that the landlord would sustain in his profits by his 
 lands lying fallow and his buildings going to decay, owing to the de- 
 sertion of his tenant and the actual possession of the premises re- 
 maining in no one, is remedied by the stat. ii G.i. c. 19, s. 16, 
 which after stating that, " Whereas landlords are often great sufferers 
 by tenants running away in arrear, and not only suffering the demised 
 premises to be uncultivated without any distress thereon, whereby 
 their landlords or lessors might be satisfied for the rent-arrear, but 
 also refusing to deliver up the possession of the demised premises, 
 whereby the landlords are put to the expense and delay of recovering 
 in ejectments, enacts, That if any tenant holding any lands, tene- 
 ments, or hereditaments at a rack-rent, or where the rent reserved 
 shall be full three-fourths of the yearly value of the demised pre- 
 mises, who shall be in arrear for one year's rent, shall desert the 
 demised premises, and leave the same uncultivated or unoccupied, 
 so as no sufficient distress can be had to countervail the arrears of 
 rent, it shall and may be lawful to and for two or more Justices of 
 the Peace of the county, riding, division, or place (having no interest 
 in the demised premises), at the request of the lessor or landlord, 
 lessors or landlords, or his, her, or their bailiff or receiver, to go 
 upon and view the same, and to affix, or cause to be affixed, on the 
 most notorious part of the premises, notice in writing what day (at 
 the distance of fourteen days at least) they will return to take a se- 
 cond view thereof : and if upon such second view, the tenant, or 
 some person upon his or her behalf, shall not appear and pay the 
 rent in arrear, or there shall not be sufficient distress upon the pre- 
 
 (<j) 1 Burr. 618. {h) i Burr. 668. {c) 6 Mod. izz.
 
 424 Of the Remedy for the Landlord^ 8sc, [Chap. XIV. 
 
 mises ; then the said Justices may put the landlord or landlords, les- 
 sor or lessors, into the possession of the said demised premises ; and 
 the lease thereof to such tenants, as to any demise therein contained 
 only, shall from thenceforth become void." 
 
 Sect. 17. " Provided always that such proceedings of the said Jus- 
 tices shall be examinable in a summary way by the next Justice or 
 Justices of Assize of the respective counties in which such lands or 
 premises lie ; and if they lie in the city of London or county of Mid- 
 dlesfx, by the Judge of the Courts of King's Bench or Common 
 Pleas ; and if in the counties palatine of Chester^ Lancaster^ or Dur^ 
 ham^ then before the Judges thereof; and if in WaleSy then before 
 the Courts of Grand Sessions respectively ; who are hereby respect- 
 ively empowered to order restitution to be made to such tenant, to- 
 gether with his or her expenses and costs, to be paid by the lessor or 
 landlord, lessors or landlords, if they shall see cause for the same ; 
 and in case they shall affirm the act of the said Justices, to award 
 costs not exceeding five pounds for the frivolous appeal." 
 
 By Stat. 57 G. 3. f. 52. the provisions of this statute are extended 
 to tenants, who shall be in arrear one half year's rent, and who 
 shall hold the lands under any demise or agreement, whether written 
 or verbal, and although no right or power of re-entry be reserved or 
 given to the landlord in case of non-payment of rent. 
 
 Where a tenant ceased to reside on the premises for several months, 
 and left them without any furniture, or sufficient other property to 
 answer the year's rent : it was held that the landlord might properly 
 proceed under the 11 G. 2. c. 19. j". 16. to recover the premises, al- 
 though he knew where the tenant then was, and although the Justices 
 found a servant of the tenant upon the premises, when they first went 
 to view the same [a). 
 
 Note. In these cases Justices ought to make a record of the whole 
 proceedings (b). 
 
 (a) I B. & A. 369. (i) 4 Bum. tit. Vagrants, i.
 
 [ 425 ] 
 
 CHAPTER XV. 
 
 Of the Remedies for and against Landlord and Tenant^ 
 
 (continuedj. 
 
 For the Landlord, for Breach of Covenants and Agree- 
 ments oilier than for Rent, 
 
 Section I. By Action of Covenant. 
 Section II. By Action of Assumpsit. 
 
 Section I. Of the Action of Covenant. 
 
 A N action of covenant or assumpsit^ according as the premises arc 
 -^-*- demised by deed or not, lies for the recovery of damages for 
 any injury sustained by the landlord in consequence of the tenant 
 neglecting to repair the buildings, suffering trades to be carried on 
 therein contrary to his covenant, treating the land in an unhusband- 
 manlike manner, or committing any other breach of the agreement. 
 
 An action of covenant cannot be maintained except upon a deed, 
 and the declaration must shew that it is brought on one {a). 
 
 In the case of joint-lessees, if a lease be to A. and B. by inden- 
 ture, and A, seals a counterpart, and B. agrees to the lease, but does 
 not seal, yet B. may be charged for a covenant broken ; and this 
 though the covenant be collateral, and not annexed to the land (b). 
 The assignee of a term, however, is not liable on a mere collateral 
 covenant [c). 
 
 So, if one party execute an indenture, it shall be his deed, though 
 the other party do not execute it : but in order to make it necessary 
 for the plaintiff to sue in covenant, the binding by deed ought to be 
 mutual (except in the case of lessee of the King's Patent) : for where 
 a defendant has never sealed the indenture he cannot be sued in that 
 form of action {d). 
 
 Touching the sealing of bonds or deeds, if it appear upon oyer 
 that two parties sealed it, whereas one only is sued, the law will not 
 intend that the other sealed the deeds unless it be expressly averred 
 that he did : and though the bond or deed upon oyer recite, " in wit- 
 ness whereof we have set our hands and seals," yet that does not 
 amount to such an averment, but the defendant must shew that the 
 bond or deed was actually sealed by the other {e). 
 
 {») a LA. Raym. 1536. (J>) Co. Lit. ijl. a. (<) Cto. Jac. 439. 
 
 (d) Cro. Elix. Hi. Cxo. Jac. 340. (0 i Saund. aji. n. i.
 
 426 Of th^ Action of Covenant. [Chap. XV. 
 
 There are, indeed, some words of art, such as ** indenture," 
 ** deed," or " writing obligatory," which of themselves import that 
 the instrument was sealed by the party without an averment of seal- 
 ing.^ If, therefore, the declaration states that J. S. by his " deed" 
 did so and so, or by «< indenture" covenanted or demised, or by his 
 ".writing obligatory" acknov/ledged, ^c. without averring in either 
 of these cases that he sealed, still the declaration is good. So, delivery, 
 Mfhich is essential to a deed, is never averred (o). 
 
 ,,But without such averment, or words of art, it is otherwise: for 
 if it be alleged that J. S. by his " certain writing" simply, demised, 
 or covenanted, or acknowledged, tffc. without averring that he sealed, 
 the Court will not intend that the writing was sealed (*). Neither 
 does it follow, because the words " in witness whereof we do put 
 our hands and sealsy' are used in the conclusion of an agreement, that 
 therefore it was sealed by the parties : on the contrary, it has been 
 decided that these words do not amount to an averment that the par- 
 ties sealed the instrument (c). 
 
 Leaving the glass of windows cracked has been held to be a breach 
 of covenant to repair. — So, not repairing a pavement is a breach of 
 covenant to leave the premises sufficiently maintained and repaired ; 
 for it is within the intention of the covenant, and is quasi the build- 
 ing i and the not repairing may be matter of value and of much pre- 
 judice to the lessor. — So, carrying away a shelf, though not stated to 
 be a fixture, has been held to be a breach of covenant to leave the 
 premises in the same order, ^c. ; for it shall be intended to 1)e 
 fixed (J). ^V!^n:»v 
 
 A covenant to repair during the term after three months* ribticc, 
 and to leave the premises in repair at the end of the term, are dis- 
 tinct clauses : therefore notice is not necessary to sustain an action 
 for non-repair at the end of the term j for the notice refers only to 
 reparations within term, to which the lessee is not tied without no- 
 tice three months before [e), ''^"^^ 
 
 But a covenant to keep a house in repair from and after the lessor 
 hath repaired it, is conditional, and it cannot be assigned as a breach 
 that it was in good repair at the time of the demise, and that the 
 lessee suffered it to decay ; for the lessor must repair before the lessee 
 is liable (/). 
 
 A covenant to repair at all times, when, where, and as often as 
 occasion should require during the term, and at furthest within three 
 months after notice of want of reparation, is one covenant ; and 
 it cannot be stated as an absolute covenant to repair at all times 
 when, where, and as often as. occasion should require during the 
 tcrm(^). 
 
 (•) 1 Saund. 291. n. 1. (A) Ibid. (i) Ibid. 310. n. 3. (d) Ibid. 330. 
 
 («) I SouiiJ. 644. (/) Ibid. 64J. ig) 7 Tatini. 385.
 
 Sect. I:] Of the Action of Covenant. 427- 
 
 A lessee covenanted, within the two first years of the term to put 
 the premises in good and sufficient repair, and at all times during the 
 term to repair, pave, scour, cleanse, empty and keep the messuages, 
 ground, and other the premises when, wh^re and as often as need 
 should require, and within the first fifty years of the term to take 
 down the four demised messuages, as occasion might require, and in 
 the place thereof, erect upon the demised premises four other good 
 and substantial brick messuages. Breach, that although fifty years 
 of the term had expired the lessee did not, within the fifty years, take 
 down the four messuages, and in the place thereof, erect four other 
 good substantial brick messuages. Plea, that occasion did not re- 
 quire, within the fifty years, that the four messuages should be 
 taken down. Upon demurrer, the Court intimated an opinion, that 
 if within the fifty years the houses should be so repaired as to make 
 them completely and substantially as good as new houses, the cove- 
 nant would be satisfied without taking down the old houses {a). 
 
 . If a plaintiff declares on a general covenant to repair a messuage, 
 and assigns a breach, per quod he was put to expense, it is suffi- 
 cient, for the tenant to plead performance as to all except as to the 
 repairs of a party wall, and that those repairs were rendered neces- 
 sary and done under the stat. 14 G. 3. <:. 78. and did not become nc- 
 cessijary by the defendant's default, and that the defendant was riot 
 the owner of the improved rent {b). 
 
 Upon a covenant that " the lessee should and would well and suffi- 
 ciently repair and hep in proper repair, all and singular the buildings, 
 ^c. during the continuance of the term" an action for breaches may 
 be maintained during the continuance of the term (r). 
 
 If a lessor covenants to let certain lands except such a close, a tdr^^ 
 tious entry by the lessee into the excepted close is said not to be a 
 breach of a condition to perform all covenants contained in the 
 lease {d). , ' ^ 
 
 Therefore if H. lets a house, excepting two rooms, and is disturbed 
 therein, covenant lies not : but if he had excepted a passage thereto, 
 and had been disturbed in thar, it would have lain ; for it well lies 
 for a thing which the lessee agrees to let the lessor have out of the 
 demised premises [e). ^ i 
 
 If a copyholder in fee makes a lease for years warranted by the 
 custom, in which the lessee covenants to repair during the term, a 
 surrenderee of the assignee of the reversion may maintain covenant 
 for non-repair against the original lessee, although he had assigned 
 the term before the reversion was surrendered to the plaintiff: for a 
 copyholder is within the stat. 32 if. 8. r. 34 [f). — The doubt in this 
 case arose upon the tenure of the messuage \ for if it had been free- 
 
 (a) 7 Taunt. 411. {i) 5 Taunt. 50. {c) i B. & A. 584, 
 
 ;*■) Cro.Eliz.6j7. (<) I oalk. i(ji6. (/) 4 Mod. 81,
 
 428 Of the Action of Covenant. [Cliap. XV. 
 
 hold, it was agreed, the action might well have been brought by the 
 assignee of a reversion against a lessee for years after he had assigned 
 his term, notwithstanding the lessor or his assigns had accepted the 
 rent from the assignee of the lessee ; and this upon the general words 
 of the statute which gives " the grantees and assignees of reversions 
 of lands, tenements, and other hereditaments, the like advantage 
 against lessees by entry for non-payment of rent as the lessors or 
 grantors themselves might have." This clause, therefore, is not 
 confined to a covenant for the payment of rent {a). 
 
 If a farm is out of repair in the life of the ancestor and afterwards 
 the heir brings an action, he shall recover damages for the whole 
 time ; but he ought not to allege a breach in the ancestor's lifetime, 
 because that belongs to the executor {b). 
 
 A recital of an agreement in the beginning of a deed v/ill create a 
 covenant, upon which this action will lie. 
 
 As, where on the demise of a coal mine, it was recited " that 
 before the sealing of the indenture it had been agreed that the plaintiff 
 should have the third part dug, ^c" on an action of covenant being 
 brought on this, it was objected, that there was no covenant that the 
 plaintiff was to have the third part : but per Hale. — Were it but a 
 recital that before the indenture they were agreed, it is a covenant ; 
 so, to say " whereas it was agreed to pay 20/." for now the inden- 
 ture confirms the former agreement by such declaration, and makes 
 it a covenant [c). 
 
 This action lies by the lessor against the assignee of the lessee's as- 
 signee for a breach of covenant that runs with the land, though he 
 be assignee of part only of the premises demised ; for he is liable 
 while he enjoys {d). 
 
 A reversioner in fee of a house by one deed, and of a lease for 
 years of land by another deed, may bring covenant on a lease against 
 the person to whom both the house and land have been demised by 
 the grantor of the reversions, although he derives his right from 
 different titles {e). 
 
 Where this action was brought on a covenant " to permit the 
 plaintiff, in the last year of the term, to sow clover among the de- 
 fendant's barley," and the breach assigned was, that the defendant 
 sowed so many acres with barley and so many with oats, without 
 giving " notice" to the plaintifi> by which he was prevented from 
 sowing the clover and grass seeds. — Plea, that the defendant did 
 " not prevent," was upon demurrer holdcn good : for the covenant 
 made no mention at all about any notice to be given : and the breach 
 assigned, being the not permitting the plaintiff to sow grass seed, the 
 single question was, whether the defendant did or did not prevent him ? 
 
 (4,) Cro. Car. 188. 579. {b) 11 Mod. 45. (0 1 K^p. N. P. a68. 3 Kcb. 46;. 
 ^</) Cro. Car. »ai. (r) Cro. Jac. 399.
 
 Sect. I.] Of the Action of Covenant. 42y 
 
 If indeed, he had refused to give notice, or had given a wrong no- 
 tice, it might have been a breach : besides, the plaintiff vv^as the party 
 for whose benefit the covenant was intended ; therefore he ought to 
 have used due diligence [a). 
 
 In covenant by an executor against a lessee, tne declaration stated, 
 that one seised in fee by will devised to W. March for life, remainder 
 in tail to the said W. M. with power to grant leases for life reserving 
 the best rent; that W. M. on June 9, 1778, granted to the defend- 
 ant a lease for twenty years and a quarter ; W. M. died and the pre- 
 mises descended to his son, who suffered a recovery, and conveyed 
 them to the plaintiff's testator. The breaches were for non-payment 
 of rent, for not repairing, and for not putting dung upon the pre- 
 mises. The rent, by the reddendum of the lease, was 60/. per ann. 
 but there was a covenant to render 64/. Lawesy of counsel for the 
 plaintiff in error, observed, that the breach assigned was non-pay- 
 ment of \6l. as a quarter's rent ; which was more than the propor- 
 tion of 60/. per ann. according to the reddendum. The last breach 
 was for not laying dung upon the premises. The covenant was, that 
 the dung should be laid each and every year during the continuance 
 of the term. The fact was, that the plaintiff's testator purchased 
 the estate only eight days previous to the expiration of the lease. Did 
 his Lordship therefore think that he was entitled to the benefit of this 
 covenant and could assign a breach for the non-expenditure of the 
 dung which was to be laid every year upon the premises ^ — L, 
 Kenyony *' Yes, beyond all doubt ; if the testator were seised of the 
 reversion during the continuance of the term." Judgment affirmed. 
 The first objection as to the breach for non-payment of rent was 
 abandoned, it appearing that in the Judges' copies of the paper-book, 
 the rent reserved was 64/. The damages were assessed severally 
 on each breach, which (the counsel observed), afforded a pre- 
 sumption that the defendant in error thought some of them not 
 supportable {b). 
 
 The tenant is not estopped by the description of the lands in the 
 lease. 
 
 Thus in covenant the plaintiff declared, that whereas he had de- 
 mised to the defendant a house and several parcels of land, which 
 were particularly described, some to be arable, some meadow, and 
 some pasture, and especially two meadows, called Laine's meadows, 
 the defendant covenanted to pay st.per acre for every acre of mea- 
 dow, which he should plough up during the lease ; and breach as- 
 signed in plowing up Laine's meadow, ^c. Plea ; that for sixty 
 years past, Laine's meadow has been arable land, and by times 
 ploughed up and sowed, as the tenants thereof thought proper, and 
 traverse, that at the time of making the lease it was meadow ground, 
 
 (a) Cowp. 135. it) *. Davis, M. T. 4J G, 3. T.'» MSS.
 
 430 Of the Action of Covenant, [Chap, \ V. 
 
 as is supposed in the declaration. To this tlie plaintiff demurred, 
 .on the ground that the defendant was estopped to say that what is in 
 the lease called meadow, is of any other nature, ^ed per Curiam ; 
 The indenture is to be construed according to the intent of the par- 
 ties, and here the intention was only to covenant against the plough- 
 ing up real meadow. Every body knows that in deeds of this nature 
 the parcels are very often taken from former deeds, without regard 
 to every alteration of the nature of the land : and it would be the 
 hardest case in the world, that if this land had been arable at one 
 time and laid down at another, the tenant should be conducted by 
 calling it by either of those descriptions. This is not the essence of 
 a deed, as what is struck at by nil hahuit in tenementis. It would be 
 carrying estoppels too far should we extend them to this case j there- 
 fore we are all of opinion, that the defendant had a right to try the 
 fact, whether it was ancient meadow or not {a). , ,: .< 
 
 To breach of covenant for not repairing, i!fc. the lessee cannot 
 plead in bar that the lessor had only an equitable estate in the pre- 
 mises, for that is tantamount to nil habuity ^c. But semk he is not 
 estopped from shewing that the lessor was only seised in right of his 
 wife for her life, and that she died before the covenant broken j, be- 
 cause an interest passed by the lease (b). ., ,., .j^ 
 
 An assignee in covenant need not name himself assignee where 4^e 
 shews a legal assignment [c). 
 
 Though a covenant be joint and several in the terms of it, yet if 
 the interest and cause of action be joint, the action must be brought 
 by all the covenantees : and on the other hand, if the interest and 
 cause of action be several, the action may be brought by one only {d). 
 So, though a man covenant with two or more jointly, yet if the inte- 
 rest and cause of action of the covenantees be several and not joint, 
 the covenant shall be taken to be several, and each of the covenantees 
 .joaay bring an action for his particular damage, notwithstani<|ing, ^I^e 
 ,.,,j|Vords of the covenant are joint (^). .. ■ ... 
 
 <^ij But where two persons covenznt Jointly and severally with another, 
 the covenantee may bring an action against one of the covenantors 
 only, though their interest in the subject-matter of the covenant be 
 joint : as, where ^. lets land to B. and C. and they covenant jointly 
 and severally with the lessor to pay the rent or the like, he may bring 
 an action against either of the covenantors ; because they are sureties 
 for each other for the due performance of the covenants, and it is as 
 competent for each of them to covenant for the other, as it is for a 
 stranger to covenant for both, which is a usual thing {/). 
 
 Even if the covenant were joint, and an action brought against one 
 of the covenantors, he could take advantage of it only by a plea in 
 
 («)a.Str. 6io. (i)8T. R. 487. (0 Ibid, a-jo. (//) i Sa-uaJ. 153. 
 
 (/) Ibid. 11. 1. (/) Ibi'l. 5 r. K.-iii.
 
 Sect. I.] Of the Action of Covenant. 4S1 
 
 abatement. — For where there are several covenantees or obligees, and 
 one of them only brings an action, without averring in the declara- 
 tion that the others are dead, the defendant may either take advantage 
 of it at the trial as a variance upon the plea of non estfactuniy or pray 
 oyer of the deed and demur generally. But where an action is 
 brought against one of several joint covenantors or obligors the defend- 
 ant can only take advantage of it by a plea in abatement ; and theugh 
 it should appear upon the record that there are others who ought to 
 be joined as defendants, yet that will not be error {a). ' 
 
 For wherever any person who ought to have been joined as a de- 
 fendant, is omitted, it is pleadable in abatement only : the reason is 
 because such plea gives the plaintiff a better writ, which is the true 
 criterion to distinguish a plea in abatement from a plea in bar {b). 
 
 As to what covenants shall be construed to be precedent or not, it 
 has been laid down, that the dependence or independence of covenants 
 was to be collected from the sense and meaning of the parties, and 
 that, however covenants might be in a deed, their precedency must 
 depend on the order of time in which the intent of the transaction 
 required their performance. — Conditions therefore are to be construed 
 to be either precedent or subsequent, according to the fair intention of 
 the parties to be collected from the instrument, and technical words 
 should give way to that intention {c). 
 
 Therefore, where in a lease for seven years, containing the usual 
 covenants that the lessee should pay the rent, keep the premises in 
 repair, ^c. a proviso was, that the lessee might determine the term 
 at the end of the first three or five years, giving six months' previous 
 notice, and that then from and after the expiration of such no- 
 tice, and payment of all rents and duties to be paid by the lessee 
 and performance of all his covenants until the end of the three or 
 five yeafs, the indenture should cease and be utterly void. Ruled 
 that the payment of rent and performance of the other covenants, are 
 conditions precedent to the lessee's determination of the term at the 
 end of the first three years, and that his merely giving six months' 
 notice, expiring within the first three years, is not sufficient for that 
 purpose {d), ^ ^ 
 
 Plaintiff covenanted to sell defendant a school-house, iffc, and to 
 convey the same to him on or before the ist of August^ 1797, and to 
 ' deliver up the possession to him on the 24th of Juncy 1 796 ; and in 
 consideration thereof, the defendant covenanted to pay the plaintiff 
 120/. on or before the said ist of August ^ 1797 : it was holden that 
 the covenant to convey, and that for the payment of the money, were 
 dependant covenants ; and that the plaintiff could not maintain an ac- 
 tion for the 120/. without averring that he had conveyed or tendered 
 
 (o) I Saund. 153. n. u [b) Ibid. 148. n. 4. i Str. 503. {c) Doug. 6^5. in n. 
 
 (</)6T. R. 665. 
 
 6
 
 432 Of the Actio)! of Covenant, [Chap. XV. 
 
 a conveyance to the defendant. Were it to hold otherwise, in such a 
 case as the present, the greatest injustice might be done j for suppos- 
 ing, in the instance of a trader who had entered into such a contract 
 of the sale of an estate, that between the making of the contract, and 
 the final execution of it, he were to become a bankrupt, the vendee 
 might be in the situation of having had payment enforced from him, 
 and yet be disabled from procuring the property for which he had 
 paid (o). 
 
 But where A. covenanted to build a house for B. and finish it on or 
 before a certain day, in consideration of a sum of money, which B. 
 covenanted to pay to A. by instalments, as the building should pro- 
 ceed ; the finishing of the house was held not to be a condition pre- 
 cedent to the payment of the money, but that the covenants were in- 
 dependent j wherefore A. might maintain an action of debt against 
 B. for the whole sum, though the building be not finished at the time 
 appointed {b). It is accordingly laid down that, if a day be appointed 
 for the payment of the money, and the day is to happen before the 
 thing can be performed, an action may be brought for the money be- 
 fore the thing be done : for it appears that the party relied upon his 
 remedy, and intended not to make the performance a condition pre- 
 cedent. So in this case by the terms of the contract, two several 
 sums of money were to be paid before the thing to be done was done. 
 The plaintiffs therefore were clearly entitled to this action for the mo- 
 ney without averring performance, and the defendant to his remedy 
 on the covenants {c). 
 
 No precise technical words, however, are required in a deed to 
 make a stipulation a condition precedent or subsequent ; neither does 
 it depend on the circumstance, whether the clause is placed prior or 
 posterior in the deed, so that it operates as a proviso or covenant, for the 
 same words have been construed to operate as either the one or the 
 other, according to the nature of the transaction : the merits therefore 
 of a question of this kind, must depend on the nature of the con- 
 tract, and the acts to be performed by the contracting parties, and any 
 subsequent facts disclosed on the record, which have happened in con- 
 sequence of the contract (^). 
 
 In covenant the plaintiff may assign as many breaches as he will. 
 So in debt on bond for the performance of covenants, by stat. 8 ^ 9 
 W. 3. c. 11. (e). 
 
 On a covenant in London to repair houses in Surrey^ the bi*each must 
 be assigned at the place where, ^c. viz. at London {/). 
 
 Where there has been an assignment by deed, it is sufficient to 
 prove the assignment by the subscribing witness without calling the 
 
 (a)8T. R.366. (*) a H. Bl. 389. (<:)i Salk. 170. i Ld. Raym. 66a. 
 
 Com. R. 98. I a Mod. 453 . {d) i T. R. 643. (0 Cro. Car. i 76. 
 
 (/) Cro. Jac. 446.
 
 Sect. I.] Of the Action of Covenant. 433 
 
 witness to the original deed -, for the assignment having adopted the 
 original deed in all its parts, it is become as one deed {a). 
 
 In covenant, if some breaches are well assigned and some not, and 
 there is a demurrer to the whole declaration, the plaintiff shall have 
 judgment for those breaches wjiich are well assigned [b). 
 
 A variance in setting out one of several covenants in a lease on 
 which breaches were assigned, viz. the Cellar Beer Fields instead of 
 Aller Beer Fieldy being considered as part of the description of the 
 deed declared on, though the plaintiff waived going for damages for 
 the breach of that covenant, is fatal [c). 
 
 To a count in covenant charging the defendants as executors for 
 breaches of covenant by their testator as lessee, who had covenanted 
 for himself, executors, and assigns, inay be joined another count 
 charging them that after the death of testator and their proving his 
 will, and during the term the demised premises came by assignment 
 to D. A. against whom breaches were alleged, and concluding that 
 so neither the testator nor the defendants after his death, nor D. A. 
 since the assignment to him had kept the said covenant, but had 
 broken the same. And plene administraverunt may be pleaded to both 
 counts (<;?). 
 
 On a breach that the house was not in repair, a plea that the plain- 
 tiff agreed that the defendant should employ a person four days in 
 and about repairing the house, in satisfaction, is bad ; for the defend- 
 ant was obliged to do the repairs by the original covenant {e). 
 
 If I covenant to leave all the timber which is growing on the land 
 when I take it, and at the end of the term I cut it down, but leave it 
 there, it is a breach of the covenant : for a covenantor shall not de- 
 feat the intent of his covenant, which is ever to be taken most strongly 
 against himself {f). 
 
 A covenant is not a duty nor a cause of action, till it be broken ; 
 and therefore it is not discharged by a release of all actions ; and when 
 it is broken, the action is not founded merely on the specialty, as if 
 it were a duty, but savours of trespass ; and therefore an accord is a 
 good plea to it ; and ends in damages [g). 
 
 But if the one party disable himself from performing his part, the 
 other party is not obliged to offer performance of his part, but may 
 have an action immediately (h). 
 
 As, where the lessor covenanted with the lessee to make him a new 
 lease on surrender of the whole within twenty years, and before the 
 twenty years expired, the lessor aliened the land to another by fine : 
 it was adjudged, that the action lay immediately, for he had disabled 
 himself to accept a surrender, and so to make a new lease {i). 
 
 [a) I Esp. R. ai7. (b) I Saund. a86. n.9. {c) 9 East, 188. 
 
 {d) 10 East, 313. {e) 4 Mod. 88. (/) 1 Esp. N. P. %n- ig) Shep. Touch. 161. n. i. • 
 (A) I Esp. N. P. jSj. Cro, Eliz. 449. -rO ( 'J 
 
 Ff
 
 434 Of the Action of Covenant. [Chap. XV. 
 
 If, however, a man have lands for a term of years, and covenant to 
 leave them in as good a plight as he found them, although he pull 
 down the houses, the lessor shall not have an action of covenant be- 
 fore the end of the term ; for the covenant has relation thereto, and 
 he may rebuild them. — But if he do waste in wood, covenant lies ; 
 for he cannot repair it {a). 
 
 If the defendants, however, prevent the performance of a condition 
 precedent, by their neglect and default, it is equal to performance by 
 the plaintiffs {b). 
 
 Performance pleaded otherwise than in the terms of the covenant, 
 is bad V), even on general demurrer to the plea of " accord and sa- 
 tisfaction," in covenant (J), where the damages are uncertain and to 
 be recovered, a lesser thing may be done in satisfaction, and there 
 " accord and satisfaction" is a good plea ; as to an action on a cove- 
 nant to repair {e). 
 
 On a covenant that runs v^ith the land, evidence that the defendant 
 is in as heir will support a declaration charging him as assignee [f). 
 
 The lessee of a coal mine, who covenants to pay a certain share of 
 all such sums of money as the coals shall sell for at the pit's mouth, 
 is not liable under that covenant to pay to the lessor any part of the 
 money produced by the sale of the coals elsewhere than at the pit's 
 mouth ; and evidence of the lessee's having accounted with the les- 
 sor, and paid him the share of the money produced by the sale of 
 coals elsewhere, is not admissible to explain the intention of the 
 parties [g). 
 
 In covenant on an indenture of demise of a coal mine made on the 
 8th of July, 1805, reserving one-fourth of the coal raised, or the 
 value in money, at the election of the lessor, and if the one-fourth 
 fell short of 400/. per annum^ then reserving such additional rent as 
 would make up that annual sum, to be rendered monthly in equal por- 
 tions : held that the lessee having elected to take the whole in money, 
 may declare for two years' and three months' rent in arrear ; but even 
 if the money rent were reserved annually, the plaintiff may remit his 
 claim as to the three months' rent, and enter up judgment for the two 
 years' rent only, and having first well assigned a breach of the cove- 
 nant that the lessees had not yielded monthly the one-fourth or the 
 value in money, ei'c. but had refused, fc'r. Held, that it would not 
 hurt on general demurrer that the count went on to allege that be- 
 fore the exhibiting of the plaintiff's bill, vix. on the ist of Nov. 1797, 
 900/. of the rent reserved for two years and three months was due 
 and in arrear ; for that date being before the lease made, and therefore 
 impossible in respect to the subject-matter, must be rejected ; and the 
 
 {a) F. N. B. 145. K. ,t vide % 131. Rep. 842. »»tc C. X. s. ii. {b) i T. R. 638. 
 
 (<, 1 bus. U i'ul. 4 j.;. {J) 4 Mod. 89. (0 Cro. Jac. 99. (f) 4 T. R. 75- 
 
 {.) s T. R. 564. 
 
 6
 
 Sect. I.] Of the Action of Covomnt. 435 
 
 general allegation that before the exhibiting of the plaintiiFs bill 900/. 
 of the rent reserved, Cfff. was clue, is sufficient («). 
 
 If the breach of a covenant be assigned thus : " That the defendant 
 has not used the farm in an husbandmanlike manner, but on the 
 contrary has committed waste," the plaintiff" cannot give evidence of 
 the defendant's using the farm in an unhusbandmanlike manner, if it 
 do not amount to waste. — On the former words of the breach, had 
 they stood alone, such evidence miglit have been given {b). 
 
 In covenant for non-repair (as for n^t repairing hedges and not 
 ploughing land) the writ of inquiry shall be to the place where the 
 lease was made [c). 
 
 Covenant lies against an assignee on a covenant not to plough, al- 
 though assigns are not named in the deed : for it runs with the 
 land {d). 
 
 So, if J. leases lands to B. and B. covenants to pay the rent, re- 
 pair houses, ^c. during the said term, and afterwards assigns to C, 
 the assignee is bound to perform the covenants during the term of the 
 first lessee, though the assignee be not named ; because the covenant 
 runs with the land made for the maintenance of a thing in esse at the 
 time of the lease made (e). 
 
 So, if A. demises to B. several parcels of land, and the lessee cove- 
 nants for him and his assigns to repair, ^c. and after the lessee assigns 
 to D. all his estate in parcel of the land demised, and D. does not 
 repair that to him assigned, the lessor may have an action of covenant 
 against D. the assignee [e). 
 
 For a covenant may be dividable and follow the land ; wherefore 
 an action of covenant will lie against an assignee of part of the thing 
 demised [f). 
 
 If a lessee covenants that he and his assigns will repair the house 
 demised, and the lessee grants over the term, and the assignee does 
 not repair it, an action of covenant lies either against the assignee at 
 common law, because this covenant runs v/ith the land, or it lies 
 against the lessee at the election of the lessor, who may charge both, 
 but execution shall be against one of them only -, for if he take both 
 in execution, he that is last taken shall have an audita querela [g). 
 
 So, the executor of a lessee is liable to the grantee of the reversion 
 on such a covenant ; though the lessee may have assigned his term 
 and the grantee have accepted rent of the assignee {li). 
 
 For the personal representative of a lessee for years is his assignee ; 
 and a covenant to repair runs with the land, as it is to be performed 
 on it, and therefore binds the assignee (/), So with respect to a co- 
 venant to make further assurance ik). 
 
 (j) 10 East, 139. (^)3T. R. 307. (<) Cro. Jac. n. (J) Ibid. 125. 
 
 (<•) Bac. Abr. tit. Covenant (E.3.) (/) Cio, Car. 222. {g) Cro. Jac. 523. 
 
 (/;) 4 Mod. 88, (0 I Ld. Raym. 551,. {k) Cro. Car. 503. 
 
 Ff 2
 
 436 Of tJie Action of Covenant. [Chap. XV. 
 
 So, if there is a covenant which runs with the land and the lessee 
 assigns over, and the assignee dies intestate, the lessor may have cove- 
 nant against the administrator of the assignee and declare against him 
 as assignee : for such covenants bind those who come in by act of law, 
 as well as by act of the parties («). 
 
 As to the extent to which the lessee or assignee is liable in cove- 
 nant, there Is a considerable dlfTerence (^), 
 
 1. The lessee has, from his covenant, both a privity of contract 
 and of estate ; and though he assigns, and thereby destroys the pri- 
 vity of estate, yet the privity of contract continues, and he is liable In 
 covenant notwithstanding the assignment (r). 
 
 2. But the assignee comes in only in privity of estate, and therefore 
 is liable only while he continues to be in possession, and therefore has 
 the legal estate : except In the case of rent, for which though he assign 
 over he Is liable as to the arrears incurred before as well as during his 
 enjoyment ; and such assignee was made liable In equity, though the 
 privity of estate was destroyed at common law (</). 
 
 Assignees of a bankrupt are not liable for the rent of premises 
 assigned to them by the commissioners unless they take posses- 
 sion ((?). 
 
 Where assignees of a bankrupt advertised a lease of certain premises, 
 of which the bankrupt was lessee, for sale by auction, without stating 
 themselves to be the owners or possessors thereof, and no bidder of- 
 fering, they never took possession In fact of the premises : held that 
 this was no more than an experiment to ascertain the value, whether 
 the lease were beneficial or not to the creditors, and did not amount to 
 an assent on the part of the assignees to take the term, or support an 
 averment in a declaration in covenant against them by the landlord, 
 that all right, title, interest, iffc. of the bankrupt In the premises came 
 to defendants by assignment thereof (y). 
 
 Where the breach assigned was in two covenants, and it appeared, 
 that for the one, the plaintiff had no cause of action, and for the 
 other a good cause, and issue was joined on both, and found for the 
 plaintiff In both and damages entirely assessed ; the plaintiff' could not 
 have judgment (g). 
 
 To an action of covenant for not pulling down part of a house 
 called The Cherry Tree at Southgate, In Middlescp<y which had been let 
 by the plaintifT to the defendant's testator; the plea was that the tes- 
 tator had repaired and beautified other parts of the premises, at the 
 plalntlfi's request, whicli the plaintiff had accepted In satisfaction ; re- 
 plication, protesting that the plaintiff did not request the testator, to 
 repair ; and replying that he did not accept the repairs in satisfaction, 
 
 (a) I-sp. N. P. 390. (i) C. XI. ante. (<;) Doug. 458. 764. {d) Bac. Atr. 
 
 lit. CovriLint. (E. 4.) I Bos.& Pull. 2.3, a East's U. 580. .Stone v. Evans, ante C. III. s. 14. 
 W Prikr's U. %y). (/) 7 £351,335. {g) 1 H, 131. 37. 
 
 7
 
 Sect. I.] Of the Action of Covenant. 437 
 
 It appeared that the plaintifT had demised the house to the testator, 
 who had covenanted to pull down the corner of it for the purpose of 
 letting the plaintiff make a cart way over the place where the corner 
 of the house stood. Lord Ketiyon. — ^The plaintiff has demised the 
 house called the Cherry Tree, and consequently the ground on which 
 it stood. The way he claims is to be made over part of the ground on 
 which the house so demised stood. Every deed is to be taken most 
 strongly against the grantor. If the corner of the house is pulled 
 down, the plaintiff cannot use the ground on which it stood, because 
 it passed by the demise -, and not having reserved in the deed any right 
 to use it, unless the plaintiff had so reserved it, he cannot claim it as a 
 way but by prescription : but as the testator did covenant to pull 
 down the corner of the house, and has not done so, there must be a 
 verdict for the plaintiff, but only for nominal damages [a). 
 
 As to bringing money into Court in this action : where there are se- 
 veral counts or breaches in the declaration, and as to some of them, 
 the defendant may bring money into Court, but not as to the others, 
 he may obtain a rule for bringing it in specially. Thus, where in co- 
 venant upon a lease for non-payment of rent, and not repairing, ^c. 
 the Court made a rule, that upon payment of what should appear 
 to be due for rent, the proceedings as to that should be stayed j and as 
 to the other breaches, that the plaintiff should proceed as he should 
 think fit {b). 
 
 Respecting relief by bill in equity, the party cannot seek for specific 
 performance of a covenant to repair (c). 
 
 But upon a covenant to build, the covenantee is clearly entitled to 
 apply to a Court of equity for a specific performance; for to build is 
 one entire thing, and if not done prevents that security for his rent to 
 which the lessor is entitled by virtue of a building lease {d). 
 
 Where a person on a building lease covenants to new build the brick 
 messuages on the premises, the rebuilding some and repairing others 
 was held not to be sufficient to answer the covenant, but the lessee 
 must rebuild the whole {/). 
 
 Section II. Of the Action of A ssiwqmt. 
 
 If the lease be by writing without deed, or by parol demise, the 
 landlord's remedy for the breach of such stipulations, as the terms of 
 the agreement express or the contract implies, is by an action of as- 
 sumpsit ; for an action upon the case on assunipsity (or as it is also 
 called on promises) is an action which the law gives the party injured by 
 the breach, or non-performance of a contract legally entered into ; it 
 
 (,7) a Esp, 690. (i) I Tidd's Pract. 564. (t) 3 Alk. jij. 
 
 (rf) Ibid. 3 Vcs. 184. (<•) % Atk. 518. 3 Br. R. 66. tsntra.
 
 438 Of the Actum of Assumpsit. [Cliap. XV. 
 
 is founded on a contract either express or implied by law, and gives 
 the party damages in proportion to the loss he has sustained by the 
 violation of the contract. 
 
 An agreement to leave a farm as he found it, is an agreement to 
 leave it in tenantable repair, if he found it so-, and will maintain a 
 declaration so laid {a). 
 
 In an action against a tenant upon promises that he would occupy 
 the farm " in a good and husbandmanlike manner, according to the 
 custom of the country ;" an allegation that he had treated the estate 
 contrary to " good husbandry and the custom of the country," is 
 proved by shewing that he had treated it contrary to the prevalent 
 course of husbandry in that *' neighbourhood," as by tilling half his 
 farm at once, when no other farmer there tilled more than a third, 
 though many tilled only a fourth : and it is not sufficient to shew any 
 precise definitive custom or usuage in respect of the quantity tilled (b). 
 
 In special assumpsit against the tenant for not performing his agree- 
 ments, the estate of the lessor is an immaterial avermen*", if the te- 
 nant has had the enjoyment of his lease. For the true rule is, that 
 on the general issue in an action on the case, all material averments 
 are denied, and put in issue, but nothing else. The estate of the 
 plaintiff is not a material averment ; for a lease by a tenant in tail 
 (as the plainrifF in this case was) is not void, but only voidable by 
 the issue in tail : it had not been nor could be avoided during the life 
 of the lessor ; nor does it lie in the mouth of the defendant, who has 
 enjoyed the fruit of it, to dispute its validity. That therefore being 
 an immaterial averment, the plaintiff, (notwithstanding he was mis- 
 taken in his title) was held to be entitled to recover on the first count 
 of the declaration, which stated that the lands descended to him in 
 fee on the death of his father, as son and heir {c). 
 
 A tenant at will even is bound to keep the premises in repair, and 
 to use the land fairly according to the course of husbandry which the 
 nature of the soil may require, and the custom of the country points 
 out as being proper. It seems indeed, that those covenants which 
 are implied in a leasCj (of which we have in a preceding part of this 
 work made more particular mention,) subsist between landlord and 
 tenant as resulting from their relative situation, by whatever means 
 that situation is created ; so that the breach of any of them is a 
 wrong for which the law affords a remedy : an action on the case 
 therefore will lie for damages arising from the neglect to repair (d). 
 
 An agreement, (as has been before observed) though not under seal 
 may be declared on specially, in which case it may be said to bind 
 the parties by its own force; or the plaintiff may in some instances 
 declare generally, and give the written contract in evidence (e). 
 
 ^a) 1 BI. R '/^Y- {!>) A i-iit's K. iy\. CO 'biJ- {') Co. Lii. 56. h. n. Z. 
 
 (r) 6T.R.iiy.
 
 Sect. 11.3 Of Ihc Action of Assumpsit. 439 
 
 A tenant from year to year is bound (as has been observed) only to 
 fair and tenantable repairs, so as to prevent waste or decay of the 
 premises, but is not bound to do substantial and lasting repairs (,i). 
 
 So, a declaration that in consideration that the defendant had be- 
 come tenant to the plaintiff of a farm, the defendant undertook to 
 make a certain quantity of fallow, and to spend 60I. worth of ma- 
 nure every year thereon, and to keep the buildings in repair, was 
 held bad on general demurrer : those obligations not arising out of 
 the bare relation of landlord and tenant {b). 
 
 But if after the expiration of a written lease containing a covenant 
 by the tenant to keep the premises in repair, he verbally agrees to 
 hold over, paying an additional rent, nothing more being expressed 
 between the parties respecting the terms of the new tenancy, he is 
 presumed to hold under the covenants of the former lease, as far as 
 they are applicable to his new situation ; and if the premises are af- 
 terwards burnt down by accidental fire, he is bound to rebuild 
 them (r). 
 
 But where a tenant came in under an agreement to manage and 
 quit the premises agreeably to the manner in which the same had been 
 managed and quitted by the former tenants ; and it appeared upon a 
 bill filed to restrain him from removing crops, ^c. after a notice to 
 quit, that the former tenant held under a lease, containing a cove- 
 nant not to remove crops, ^^c. at the end of the term, but of which 
 lease the defendant had no notice; and that in point of fact the last 
 tenant did remove the ci'ops, ^c. when he quitted the premises ; the 
 Lord Chancellor ruled that the tenant was not bound by tlie covenants 
 of the lease, and refused the injunction [d). 
 
 By an agreement between plaintiff and defendant, the defendant 
 was to accept of the assignment of the lease of a term from the 
 plaintiffs, and to take the fixtures and crops at a valuation ; he was 
 afterwards let into possession of the fixtures, and the crops v/ere 
 valued to him ; but the lease was never assigned : held that indebitatus 
 assumpsit would not lie for the price of the fixtures and crop^^, and 
 that the plaintiff's only remedy was by a special action on the agree- 
 ment {e). 
 
 Where an agreement between an out-going and an in-coming te- 
 nant was that the latter should buy the hay, ^c. upon the farm, and 
 that the former should allow to the latter the expense of repairing 
 the gates and fences ; and that the value of the hay, ^c. and of the 
 repairs should be settled by third persons ; held that the balance set- 
 tled to be due for the hay, ^c. after deducting the value of the re- 
 pairs, might be recovered by the out-going tenant in a count upon a 
 general indebitatus assumpsit for goods sold and delivered (/). 
 
 (j) 2Esp. R. 590. {b) 1 Mais. 567. (0 4 Camp. 275. {il) i Mtrivalc, 15. 
 
 (c) 1 Ciuiipl). 471. {f ) 1% Edbt's R. I.
 
 440 Of Waste on the Statute o/' Gloucester. [Chap. XVI. 
 
 A custom for the tenant of a farm in a particular district to pro- 
 vide work and labour, tillage, sowing, and all materials for the same, 
 in his away-going year, and for the landlord to give him a reasonable 
 compensation for the same, is valid in law, notwithstanding the farm 
 is held under a written agreement ; provided such agreement does 
 not in express terms exclude the custom (a). 
 
 (-7) Holt. N. P. Rep. 197. 
 
 CHAPTER XVI. 
 
 Of the Remedies for Waste. 
 
 Section I. By Actrnn of Waste on the Statute of Glou- 
 cester : and Trover for Waste. 
 
 Section II. Action on the Case in the Nature of Waste. 
 
 Section III. In Equity. 
 
 Section I. Of Waste on the Statute o/' Gloucester. 
 
 REMEDIES for waste lie at common law by prohibition of waste 
 and action of waste : in favour of the owner of the inheritance ; 
 however, the statutes of Marlbridge, 52 //. 3. c. 23. and of Glouccstery 
 6 E. I. c. 5. provided that the writ of waste shall not only lie 
 against tenants by the law of England (or curtesy) and those in dower, 
 but against any farmer or other that holds in any manner for life or 
 years : so that for above five hundred years past all tenants merely for 
 life or for any less estate have been punishable or liable to be im- 
 peached for waste both voluntary and permissive ; unless their leases 
 be made, as sometimes they are, without impeachment of waste, 
 absfpie impcUlione vast'i ; that is, with a provision or protection that no 
 man shall impetcre or sue him for waste committed [a). 
 
 But tenant in tail, after possibility of issue extinct, is not impeach- 
 able for waste ; because his estate was at its creation an estate of in- 
 heritance, and so not within the statutes. The first incident to an 
 estate tail is, that the tenant shall not be punishable for committing 
 waste, by felling timber, pulling down houses, opening and working 
 mines, b'^-. But this power must be exercised during the life of the 
 tenant in tail, for at the instant of his death it ceases. If, therefore, 
 a tenant 111 tail sell trees, growing on the land, the vendee must cut 
 
 (.») % iil. Cum. J85.
 
 Sect. I.] Of JVaste on the Statute of Glouccstev. 441 
 
 them down during the life of the tenant in tail ; for otherwise they 
 will descend to the heir, as parcel of the inheritance [a). 
 
 The Court of Chancery will not, in any case whatever, restrain 
 the tenant in tail from committing waste. It is said also, that if he 
 grant all his estate, the grantee is dispunishable for waste : so if 
 grantee grant it over, his grantee is likewise dispunishable. Neither 
 does waste lie for the debtor against tenant by statute, recognizance, 
 or e/egity because against them the debtor may set off the damages in 
 account : but it seems reasonable that it should lie for the reversioner 
 expectant on the determination of the debtor's own estate, or of those 
 estates derived from the debtor (^). 
 
 By the statute of Marlbridgey single damages only could be reco- 
 vered, except in the case of a guardian ; but the statute of Gloucester 
 directs that tenant in dower, by the curtesy, for life, or years, shall 
 lose and forfeit the place wherein the waste is committed, and also 
 treble damages to him that hath the inheritance. The statute speaks 
 of terms of years in the plural number ; but though it be a penal law, 
 whereby treble damages and the place wasted shall be recovered, yet 
 a tenant for half a year, being within the same mischief, shall be 
 within the same remedy, though it be out of the letter of the law. 
 The expression of the statute is, that " he shall forfeit the thing 
 which he hath wasted :" and it hath been determined that, under 
 these words, the place is also included. — If waste be done sparsimj or 
 here and there, all over a wood, the whole wood shall be recovered ; 
 or if in several rooms of a house, the whole house shall be forfeited ; 
 because it is impracticable for the reversioner to enjoy only the iden- 
 tical places wasted, when lying interspersed with the other. But if 
 waste be done only at one end of a wood (or perhaps in one room of 
 a house, if that can be conveniently separated from the rest), that 
 part only is the locus vastatusy or thing wasted, and that only shall be 
 forfeited to the reversioner [c). 
 
 The redress under this statute for this injury of waste is of two 
 kinds, preventive and corrective ; the former by writ of estrepement ; 
 the latter by action of waste. 
 
 Estrepement. — Estrepement from extirparcy signifies to draw away the 
 heart of the ground, by plowing and sowing it continually, without 
 manuring or other good husbandry, whereby it is impaired ; and may 
 be also applied to the cutting down trees, or lopping them farther 
 than the law allows. The word is used for a writ, which lies in two 
 cases : the one by the statute of Gloucestery when a person having an 
 action depending, as a formedouy writ of right, <sfc. sues to prohibit 
 the tenant from making waste during the suit : the other is for the 
 demandant, who is adjudged to recover seisin of the land in question 
 
 (.») Cruise's Dig. tit. a. c. I. 5. J J. {b) Ibid. s. ii. jLeou. I2i. {c) Co. Lil. 54-
 
 442 Of Waste on the Statute o/'Gloiicester. [Chap. XVI. 
 
 after judgment and before execution sued by the writ of habere facias 
 possessionem^ to prevent waste being made before he gets into posses- 
 sion. By an equitable construction of the statute of Gloucester, and 
 in advancement of the remedy, it is now held that a writ of estrepe- 
 tnent to prevent waste may be had in every stage, as well of such ac- 
 tions wherein damages are recovered, as of those wherein only pos- 
 session is had of the lands ; for perhaps the tenant may not be able 
 to satisfy the demandant his full damage. In an action of waste it- 
 self, therefore, (of which hereafter,) to recover the place wasted and 
 also damages, this writ will lie as well before as after judgment, for 
 the plaintiff cannot recover damages for more waste than is contained 
 in his original complaint : neither is he at liberty to assign or give in 
 evidence any waste made after suing out the writ : it is therefore rea- 
 sonable that he should have this writ of preventive justice, since he 
 is in his present suit debarred of any further remedy (a). 
 
 If a writ of estrepement forbidding waste be directed and delivered 
 to the tenant himself, as it may be, and he afterwards proceeds to 
 commit waste, an action may be carried on founded upon this writ, 
 wherein the only plea of the tenant can be non fecit vastum contra pro- 
 hihitionem, and if upon verdict it be found that he did, the plaintiff 
 may recover damages and costs, or the party may proceed to punish 
 the defendant for the contempt {U), 
 
 This writ lies properly where the plaintiff in a real action shall not 
 recover damages by his action, and as it were supplies damages; for 
 damages and costs may be recovered for waste, after the writ of es- 
 trepemefjt is brought [c). 
 
 By virtue of either of these writs, the sheriff may resist those that 
 do, or offer to do waste ; and if otherwise he cannot prevent them, 
 he may lawfully imprison the wasters, or make a warrant to others to 
 imprison them ; or, if necessity require it, he may take the posse 
 cotnitattis to his assistance [d). 
 
 Writ of Waste. — The writ of waste is also an action partly founded 
 on the common law, and partly upon tlie statute of Gloucester, and 
 may be brought by him that hath the immediate estate of inheritance, 
 whether it be fee-simple or fee-tail ; provided the reversion continue 
 with him, in the same state in which it was at the time of the waste 
 done, and be not granted over -, for though he take the estate back 
 again, the action is gone, because the estate did not continue [e). 
 This is a remedy and yet a penal law, and therefore shall have a fa- 
 vourable construction [f). 
 
 A purchaser (as contradistinguished from one by descent) shall 
 have an action of waste (g). 
 
 So, a parson, iifc. for it is tlic dowry of the church. 
 
 (a) i'. N. U. J Iii:t..^i8. J Rcj-. 115. (/.) Moor, 100. (c) Ibid, a hut. xi8. 
 
 (J) IhiJ, 3l<;. (0 a Wood's Inil-v^i. (/) J Mod. 9J. (i;) Ibid.
 
 Sect. I.] Of IVaslc on the Slalule o/'Gloucester. 443 
 
 But if a lease be made to j4. for life, remainder to B. for life, re- 
 mainder to C. in fee, no action of waste lies against the -first lessee 
 during the estate in the mesne remainder, for then his estate would 
 be destroyed ; otherwise if B. had a mesne remainder for years, for 
 that would have been no impediment, the recovery not destroying 
 the term for years. But though B. cannot bring waste, he may have 
 an injunction (unless it be meliorating waste, as by bflWding houses, 
 c£fc.) : but the reversioner or remainder-man in fee must be made a 
 party, for possibly they may approve of the waste (a). 
 
 If the lessee for years commit waste, and his term expires, yet the 
 lessor shall have an action of waste for the treble damages (b). If a 
 bishop make a lease for life or years, and die, and the lessee, the fee 
 being void, doth waste, the successor shall have no action of waste (<:). 
 Tenant in common need not join in action of waste (d). This 
 action is also maintainable in pursuance of the stat. of Westm. 2. 
 (13 E. I.e. 22.) by one tenant in common of the inheritance against 
 another, who makes waste in estate holden in common : the equity 
 of which statute extends to joint-tenants ; but not to copartners, 
 because they, by the old law, might make partition ; but tenants in 
 common and joint-tenants could not, whereof the statute gave them 
 this remedy, compelling the defendant either to make partition and 
 take the place wasted to his own share, or give security not to com- 
 mit any farther waste. But these tenants in common and joint-ten- 
 ants are not liable to the penalties of the statute of Gloucester^ which 
 extends only to such as have life estates and do waste to the prejudice 
 of the inheritance {e). 
 
 The grantee of a reversion shall have waste : therefore if the 
 lessee of land opens a coal mine and grants all his interest, except- 
 ing the mine, waste will lie by an assignee of the reversion against 
 the grantee for coals afterwards dug by the grantor ; for the excep- 
 tion being of a thing with which he had not power to meddle, was 
 void(/). 
 
 A proviso in a lease that the lessor shall cut down trees, is a cove- 
 nant and not an exception : therefore the heir may maintain waste 
 if they be cut down [g). But if a lease be made excepting the wood 
 and timber, an action of waste will not lie against the lessee for cutting 
 it down, because not demised. If the termor assign his term, ex- 
 cept the trees, and afterwards the trees are cut down, waste will lie 
 against the assignee, for the exception was void: but if tenant for 
 life make a lease for years, he may except the trees, because he still 
 remains tenant and is chargeable in waste (/j), 
 
 (a) 2, Mod. 9J. (b) 3 P. Wmt. n. F. (c) Co. Lit. 356. (i) 2 Mod. (>i. 
 (.; i lii»u 433. (y) Co. Lit. 5Z. in 11. Cro. Eliz. {£) Ibid. 690. 
 
 ib) Bull. N. P. 119.
 
 444 Of Waste on Ihe Statute c/Gloiicester. [Chap. XVI. 
 
 Waste lies against an executor de son tort of a term of years or of 
 other chattels, by stat. 30 C. 2. c. 7, and 4 ^ ^ W. ^ M. c. 24. 
 s. 12. 
 
 An occupant shall be punished for waste, — So, if the tenant for 
 life or years, or their assignee make a grant over, and notwithstand- 
 ing take the profits, an action of waste lies against him, by him in 
 the reversion or remainder by the statute [d). 
 
 One may have an action of waste upon several leases, and upon 
 several grants of a reversion {b). 
 
 By the custom oi' London ^ waste lies at common law, for waste in 
 houses there ; and now since the statute of Gloucester^ waste lies there 
 in cases within the statute as well as in others ; for though the statute 
 gives an action of waste in cases where it would not lie before, and 
 gives also treble damages et locum vastatum^ yet it does not take away 
 the jurisdiction of any Court that before held plea of waste. — So a 
 writ of estrepement lies in London pendente placitoy or after judgment 
 and before execution, to stay waste (c). 
 
 No person is entitled to an action of waste against a tenant for life, 
 but he who has the immediate estate of inheritance in remainder or re- 
 version, expectant upon the estate for life. If between the estate of 
 the tenant for life who commits waste and the subsequent estate of in- 
 heritance there is interposed an estate of freehold to any person in 
 esfCy then during the continuance of such interposed estate, the action 
 of waste is suspended ; and if the first tenant for life dies during the 
 continuance of such interposed estate, the action is gone for ever. 
 But though while there is an estate for life interposed between the 
 estate of the person committing waste and that of the reversioner or 
 remainder-man in fee, the remainder-man cannot bring waste ; yet if 
 the waste be done by cutting down trees, ^c. such remainder-man in 
 fee may seize them, and if they are taken away or made use of before 
 he seizes them, he may bring trover : for in the eye of the law a re- 
 mainder-man for life has not the property of the thing wasted ; and 
 even a tenant for life in possession has not the absolute property of it, 
 but merely a right to the enjoyment or benefit of it, as long as it is 
 annexed to the inheritance, of which it is considered a part, and 
 therefore it belongs to the owner of the fee {d). 
 
 But the lord of a manor may enter for waste committed by a copy- 
 holder for life, though there be an intermediate estate in remainder 
 between the estate of the copyholder for life, and the lord's re- 
 version (e). 
 
 The action of waste is a mixed action : partly real, so far as it re- 
 covers land : and partly personal, so far as it recovers damages ; for 
 
 («) Co. Lit. 54. (A) Cro. Jac. 3.-iO. Popli. 2j. (<:) Com. Dig. Waste. (_B. 1.) 
 
 (J) Co. Lit. ai8. b. II. 2. («) a M. & S. 68,
 
 Sect. I.] Of Waste on the Statute ofGloucester. 445 
 
 it is brought for both of those purposes, and if waste be proved, the 
 plaintiff shall recover the thing or place wasted, and also treble 
 damages by the statute of Gloucester. 
 
 The process in the action of waste is, first a writ of summons 
 made by the cursitor of the county where the land lies, and on the 
 return of this writ the defendant may essoin and the plaintiff adjourn, 
 l5fc. Then a pone is made out by the filazer of the county, on the 
 return of which a distringas issues for the defendant to appear, and 
 upon his appearing the plaintiff declares, and the defendant pleads, Cffr. 
 
 The writ of waste calls upon the tenant to appear to shew cause 
 why he hath committed waste and destruction in the place named to 
 the disinherison of the plaintiff. If the defendant makes default 
 and does not appear at the day assigned him, then the sheriff is to 
 take with him a jury of twelve men, and go in person to the place 
 alleged to be wasted, and there inquire of the waste done and the 
 damages, and make a return or report of the same to the Court, upon 
 which report the judgment is founded (a). — But if the defendant ap- 
 pears to the writ and afterwards suffers judgment to go against him 
 by default, or upon a nil dicet (when he makes no answer or puts in 
 no plea in defence), this amounts to a confession of the waste, since 
 having once appeared, he cannot pretend ignorance of the charge. 
 The sheriff, therefore, shall not go to the place to inquire of the fact, 
 but shall only (as in default in other actions) make inquiry of the 
 quantum of damages [b). 
 
 In waste the plaintiff must shew how he is entitled to the inherit- 
 ance ; therefore, if he counts upon a lease by himself, he must shew 
 his seisin in fee, and demise to the defendant (c). 
 
 In every case the plaintiff in this action must shew his title. Thus, 
 if he claim by fine, he must plead the fine and the uses of it ; if by 
 common recovery, he must shew the recovery and uses : so, if by 
 grant of the reversion, he must shew how he claims by assignment ; 
 and if the husband and wife in right of the wife sue, they must allege 
 the reversion in both : so, if the plaintiffs sue as parceners or joint- 
 tenants, the declaration should shew that they are so [c). • ^ ^'-^ ■ 
 
 If, however, the plaintiff conclude ad exh^reditationetrti it suppfies 
 the omission of the estate of which he was seised, after verdict: so 
 if he shews the special matter it is sufficient, though he does not 
 name himself assignee : so, if the writ is general, cujus hares the 
 plaintiff is, though he has a special inheritance {c). ^'^ loi TMi'y^' 
 
 If the plaintiff has the reversion, he shall say that the defendant 
 holds of him : but it is otherwise, if waste be brought by him in re- 
 mainder ; or by the lord who has by escheat, for there is no tenure of 
 him (<:). 
 
 {a) Poph. 34. {b) Cro. Eliz. i8. 290. (c) Com. Dig. tit. Pleader. (3 O. a.)
 
 446 Of Waste on the Statute o/Gloiicester. [Chap. XVI. 
 
 The plaintiff must always charge the defendant in the tenet^ or in 
 the tenuit ; for there is no other form : and must charge him as 
 assignee, executor, ^c. So, he must charge him by virtue of the 
 lease by which he is possessed : as, if the defendant be in by devise, 
 he must charge him as tenant ex legations. If defendant claims by 
 a remainder for life or for years, which is now in possession, he 
 may be charged upon a demise to him ; but if he be in by the statute 
 of Uses, it is sufficient to charge him generally, without saying on 
 whose demise (a). 
 
 The declaration must assign the waste conformably to the writ : for 
 if the writ is for waste in land, and it is assigned in cutting wood, it 
 is bad {b). 
 
 If waste be assigned in land, it must say in what parish it lies (f ). 
 
 It is sufficient to assign waste directly, without shewing the parti- 
 cular manjier in which it was committed ; as, if it is in germins, it is 
 sufficient to say, that he destroyed the germins generally, v/ithout say- 
 ing that he suffi^red the hedges of the wood to be neglected, whereby 
 cattle entered and ate the germins ; and if a stranger commit the 
 waste, that fact need not be mentioned. 
 
 But the declaration must particularize the quality or quantity of the 
 waste ; as if it is in cutting trees, the plaintiff must shew the number 
 of the trees. — If the demise is of a moiety of a manor, and other lands, 
 and the waste assigned in a wood, parcel of the premises, it is bad ; 
 for it cannot be parcel of the manor, and also of the other lands. 
 
 If trees be excepted out of a demise, waste cannot be committed 
 by cutting them down ; and therefore ejectment cannot be brought as 
 for waste committed in or upon the demised premises [d). 
 
 A declaration in waste that the defendant ploughed up the land, 
 which was pasture, et sic vastum fecit, was held bad for uncertainty; 
 even after verdict {e). — After verdict, nothing is to be presumed but 
 what is either expressly stated in the declaration, or necessarily im- 
 plied from those facts which are stated [f] : for a verdict will cure 
 ambiguity only, but will not aid where the gist of the action is 
 omitted to be laid in the declaration (g). 
 
 The declaration must be ad exhareditationetn of the plaintiff: if he be 
 seised in right of his wife, it shall be ad exhareditationem of the wife. 
 So, if there are several plaintiffs, there may be summons and sever- 
 ance ; for it is a real action, and ad exharcditationem [h). 
 
 The general issue to an action of waste, is " no waste done ;" but 
 this admits nothing, but puts the whole declaration in issue ; and may 
 be pleaded in all cases where there is no waste, as if destruction 
 happens by tempest, ^c. If therefore the defendant plead mil waste 
 
 {a) Com. Dig. tit. PI. alcr. (3 O. 3.) {i) Il.id. (3 O. 4-) CO Ibid. (3 O. 5.) 
 
 {J) 8 East, 190. {r) 7. Show. R. 8. (./') i T. R. 145. 
 
 (^) Cowp. bo6. Duuz- 68. (h) Com. Dig. tit. Pleader. (3 O. 6.)
 
 Sect. 1.3 Of Waste on tJie Statute of Gloucester. 447 
 
 fait, and issue is taken thereupon, the plaintiff must prove his title as 
 laid in the declaration : he must likewise prove the kind of waste laid 
 in the declaration ; and therefore if he allege waste in cutting trees, 
 and the jury find that he stubbed them and did not cut them, it is 
 variance {a). — Defendant may also, under the general issue, give in 
 evidence any thing which proves that it is no waste ; as that it w^s by 
 tempest, ^c. as before observed ; but not that it was for repairs, or 
 that the plaintiff gave him leave to cut, or that he had repaired before 
 the action brought. Neither will it be any defence that a stranger did 
 it, for if the plaintiff should not have his action of waste, he would 
 be without remedy ; and the defendant may bring trespass against the 
 stranger, and recover his damages. But it would be a good plea to 
 say that the plaintiff himself did it (b). 
 
 If several wastes are assigned, and the defendant is not guilty of 
 part of any, he may plead " no waste done" to the whole, and need 
 not say to every part severally " no waste (c)." 
 
 If the tenant repairs before action brought, it is said, he in re- 
 version cannot have an action of waste ; but the tenant cannot, in such 
 case, plead that he did no waste, but must plead the special mat- 
 ter (^) ; for 
 
 *' No waste done" is no plea where the defendant has matter of 
 justification, or excuse. Therefore, if there be a lease to A. for two 
 years, and afterwards a lease to B. for ten years, in waste against B. 
 for waste during the two years, he cannot plead " no waste done (£■)." 
 
 The defendant may plead in justification that he took for repairs ; 
 as for repair of the fences and other necessary uses : or, that he pulled 
 down to rebuild and repair the house, fences, ^c. Therefore tenant 
 for life may justify cutting down timber upon the ground letten, and 
 repairing the house therewith, though he is not compellable to repair 
 it if it were ruinous when the lease was made (/^). — But it is not suf- 
 ficient to say, that he took for repairs, if he does not add that he used 
 or keeps for repairs: for it is waste for a lessee to cut down timber- 
 trees for the purposes of repairs when there is no occasion, for were it 
 otherwise, every farmer might cut down all the trees growing upon 
 the land under pretence that he keeps them to employ about repara- 
 tions whenever such shall become necessary (^), 
 
 So he may plead that he took them for other necessary botes ; as for 
 wain-bote, cart-bote, plough bote, or hedge-bote, or for gates, or 
 stiles ; or for making utensils in husbandry ; or for fuel. So, he may 
 plead that they were dead wood, bearing neither fruit nor foliage (/6). 
 
 So, he may plead that the lease was without impeachment of waste : 
 
 («) Bull. N. p. 119. {!)) Ibid. lao. (c) Com. Dig. tit. Pleader. (3 0. 7.) 
 
 {il) I Inst. 382. Cro. Jae . 658. {e) Com. Dig. ut ante. (/) Co. I^it. 54. b. 
 
 {£) Com, Dig. vt ante. (3 t\ ii.) Cio. Eliz. 591. {h) Com. Dig. ut ante. (3 0. 12.)
 
 448 Of Waste on the Statute o/Gloucester. [Chap. XVI. 
 
 or, that the plahitifF's ancestor made a bargain and sale of the trees to 
 Him: or^ that the lessor covenanted that the lessee might cut down 
 trees. — But it is no bar, that the lessor covenanted to repair, and that 
 he did it for him [a). 
 
 He may also plead, that he has rebuilt and since kept in repair; for 
 he may plead in excuse, that he repaired before action brought, for 
 the jury must view the place wasted : but " repaired pending the 
 suit" is no plea. So he may plead that it was so ruinous at the com- 
 mencement of his lease, that he could not repair [b). 
 
 So, he may plead a release from the plaintiff, or one of the plaintiffs, 
 in bar : for if waste be by two plaintiffs in the tenuity a release by one 
 is a bar to both : but where waste is in the tenet, a release by one 
 plaintiff bars himself only (r). 
 
 So, to waste in the tenuity he may plead accord with satisfaction (J). 
 
 So, the defendant may plead in abatement to the plaintiff's title, or 
 that the plaintiff has nothing in reversion ; but he ought to shew 
 how the reversion is devested, for << nothing in reversion," generally, 
 will be bad ; except where waste is brought by a grantee of the rever- 
 sion {e). 
 
 So, if the plaintiff's title fails pendente lite, the defendant may plead 
 it after the last continuance. 
 
 So, he may plead a mesne remainder-mati still alive. 
 
 So, the defendant may plead no demise made to him : or, no demise 
 as to part : or, that wood was excepted by the demise. — So, that he 
 has nothing by the assignment of B. or that after the demise, the de- 
 fendant assigned, before which assignment no waste was done {/). 
 
 To the plea of assignment before waste done, the plaintiff may re- 
 ply, that the assignment was by fraud, and he afterwards took the 
 profits : and if the defendant rejoins, he must traverse the pernancy of 
 the profits, not the fraud {g). 
 
 In waste, if issue is joined, six jurors at the least ought to have a 
 view of the place wasted, otherwise the trial shall be staid : if there- 
 fore waste be assigned in several places, the jury may find *' no waste 
 done" in a place of which they had no view, and they ought, it seems, 
 to have a view (as the venire facias directs them to have), though the 
 issue be upon a collateral point, and the waste be confessed. Whether 
 the venire facias be returned or not, the Court may examine as to the 
 fact of the jury having viewed or not; for the return does not con- 
 clude the parties : but it Is not necessary, that the officer return upon 
 the distringas juratorum, that the jury have viewed j or that he was 
 present at the view {h). 
 
 (a) Com. Dig. ut ante. (3 O. 4.) (/') 'bid. (3 O. 15.) (. ) Ibid. (3 O. 8. i6.) 
 
 \j) Ibid. (r) Ibid, (3 O. 10.) (/) Ihid. (3 (). 19.) Ibid. (3 O. 18.) 
 
 ii) Ibid. (/') Com. Dii^. tit. Plt.idcr. (3 O. ai.)
 
 iSect. I.] Of Waste on the Statute of Gloucester. 449 
 
 If however tiie waste be assigned in a wood sparsimy it is sufficient 
 if the jury view the wood, though they do not enter into it. So, if it 
 be in several rooms of a house. 
 
 Of the Judgment. — Touching the judgment in waste, if there be 
 judgment for want of an appearance upon the distringas by the stat. 
 IV. 2. c. 14. the sheriff taking twelve, csfr. shall go to the place wasted 
 and take inquisition of the damage, and upon the return thereof, there 
 shall be damage. 
 
 When the waste and damages are ascertained, either by confession, 
 verdict or inquiry of the sheriff, judgment is given in pursuance of 
 the statute of Gloucester y c. 5. that the plaintiff shall recover the place 
 wasted ; for which he has immediately a writ of seisin, provided the 
 particular estate be still subsisting ; (for if it be expired there can be 
 no forfeiture of the land ;) and also, tL;*t the plaintiff shall recover 
 treble the damages assessed by the jury ; which he must obtain in the 
 same manner as all other damages in actions personal or mixed are 
 obtained, whetlier the particular estate be expired, or be still in 
 being {a). 
 
 In an action of waste upon this statute against the tenant for years, 
 for converting three closes of meadow into garden ground, if the jury- 
 give only one farthing damages for each close : the Court (who have 
 a kind of discretionary power therein) will give the defendant leave to 
 enter up judgment for himself {b). 
 
 By stat. S ^ 9 W. ^. c. 1 1 . j-. 3 . a plaintiff shall have costs in all 
 actions of waste, where the damages found do not exceed twenty- 
 nobles i which he could not at common law. 
 
 Trover for Waste. — Waste is a tort, and the remedy lies at law. 
 Therefore where timber is cut down, trover may be brought to re- 
 cover the value. — In an action of waste, the place wasted is recover- 
 ed ; in an action of trover, damages {c). 
 
 Trover may be brought against the executor of the person who con- 
 verts the timber to his own use {d). 
 
 But though trover will lie at law, it may be very necessary for the 
 party who has the inheritance to bring his bill in equity, because it 
 may be impossible to discover the value of the timber, being in 
 possession of and cut down by the tenant [e). 
 
 Yet whether a bill for an account may be brought by the lord of a 
 manor, or a lessor, against a tenant for timber felled, seems to be 
 doubtful (/). 
 
 {a) 3 Bl. Com. %%<). (I) 2 Bos. & PuL 86. (0 3 Atk. 263. 755. 
 
 (J) Ibid. 637. (e) % P. Wms. 241. (/) I P. Wms. 406. aff. 3 Atk. 164. neg. 
 
 Gg
 
 [ 450 ] 
 
 Section II. Of the Action upon the Case in the Nature of 
 
 Waste, 
 
 Since the statute of Gloucester^ which gives no more costs than da- 
 mages, it is usual to bring trespass or case in the nature of waste ia- 
 stead of the action of waste. 
 
 An action on the case does not lie for permissive waste [a). 
 
 Either an action on the case or trespass will lie, at the plaintiffs 
 election, against his tenant for despoiling the premises : and case is 
 the better action to recover as much as he may be damnified, because 
 he is subject to an action of waste (b). 
 
 One tenant in common cannot maintain an action on the case in 
 the nature of waste against another tenant In common (in possession 
 of the whole, having a demise of the moiety from the first) for cutting 
 down trees of proper age and growth for being cut ; for It is no hurt 
 to the Inheritance. If however the trees were not fit to be cut, he 
 might maintain such action {c). 
 
 Tenant at will has no power to commit any kind of voluntary 
 waste : but he is not within the statute of Gloucester : and therefore 
 an action of waste lies against him (d). If, however, a tenant at will 
 cut down timber-trees, or pull down houses, the lessor shall have an 
 action of trespass against him (e). 
 
 So, with respect to permissive waste ; no remedy whatever lies 
 against tenant at will ; for he is not bound to repair or sustain houses 
 like tenant for years (/"). 
 
 It is so notoriously the duty of the actual occupier to repair the 
 fences, and so little the duty of the landlord, that without any agree- 
 ment to that effect, the landlord may maintain an action against his 
 tenant for not so doing, upon the ground of the injury done to the 
 inheritance (g). 
 
 A tenant from year to year is only bound to fair and tenantable re- 
 pairs, so as to prevent waste or decay of the premises, not to sub- 
 stantial ones (h). 
 
 Where a lessee covenanted to repair the premises during the term, 
 and yield them up at its expiration «' in as good condition as the 
 same should be In when finished under the direction of J. M." It was 
 ruled that an action on the case. In the nature of waste, would not lie 
 against the assignee for yielding up tlie premises at the expiration 
 of the term " In a much worse order and condition than when the 
 same were finished under the direction of J. M. ;" for waste can onTy 
 lie for that which could be waste. If there was no stipulation respect- 
 ing it ; but if there were no stipulation, it could not be waste to leave 
 tlic premises In a worse condition than J. M. had put them into (/). 
 
 (a) I Bos. & Pul. N. R. 490. (b) Cio. Car. 187. (f) Z T. R. 145- {d) 1 Cruise's 
 
 Dig. tit. 9. s. ij. (<r) 1 liibt. 57. a. (/) Ibiil. s. 14, 15. 3 Rqi. 13. b. I Sliow, a88. 
 
 it) 4 T- ^- i'V- ^'') * ^^V- ^^' •!'9C- (') 7 ■'■•'"'It- 392'
 
 [ '^^1 ] 
 
 Section III. Of the Remedies in Equitij, in the Case of 
 
 Waste, 
 
 On the subject of waste, the Court of Chancery has, it should 
 seem, a concurrent jurisdiction with the Courts of common law. 
 
 The relief afforded by that Court, is in many cases the most 
 eligible, and in some, absolutely necessary to be sought, in order to 
 prevent the commission of threatened or impending waste : for the 
 Court will stay waste upon application by bill brought for that pur- 
 pose praying an injunction. 
 
 At the common law, a prohibition went out of Chancery, against 
 the tenant by the curtesy, in dower, or as guardian, at the prayer of 
 him who had the inheritance, to inhibit waste, and that before waste 
 committed [a). 
 
 Respecting the remedy of the remainder-man or reversioner (or in 
 the case of copyholds, of the lord) against the tenant about to commit, 
 or committing waste, although a Court of Equity will not assist a 
 forfeiture, yet the tenant in possession shall be restrained in equity 
 from waste in all cases in which waste is punishable by law ; and for 
 this purpose, an injunction will be granted before the bill is filed. 
 Also an injunction will be granted to stay waste in behalf of an infant 
 in ventre sa mere. Equity will likewise, in some particular cases, re- 
 strain the tenant from committing waste, where he is dispunishable 
 by law, either by the nature of the estate, or by express grant 
 ** without impeachment of waste :" but where, by agreement of the 
 parties, the lease is made without impeachment of waste, equity will 
 not restrain the lessee from cutting timber, ploughing, opening 
 mines, ^c. though such lessee shall be restrained from pulling down 
 houses, defacing seats, ^c. (b). 
 
 With respect to threatened or impending waste ; the act of sending 
 a surveyor to mark out trees, is a sufficient ground for an injunc- 
 tion (c). 
 
 So, a threat to open mines, entitles a party to come into this Court 
 to restrain him (d). Even if a tenant for life insists on a right to do 
 waste, and has none, the reversioner may have an injunction, though 
 no proof of waste appear [e). 
 
 When a bill is filed to restrain waste or any other injury very detri- 
 mental, so that it is necessary to lose no time, an injunction may be 
 applied for immediately after the bill is filed, by special motion sup- 
 ported by affidavit of the grievance (/"). 
 
 So now an injunction shall be granted upon an affidavit of waste 
 committed, to inhibit any waste to be committed by tenant for life or 
 
 ' '- (a) Com. Dig. tit. Chancery. (D. ii.) {b) a Eq. Ca. Abf. 399. in 11. 
 
 \c) 5 Ves. jun, 688. {d) % Atk, 182. (<f) Barnard, 491. (/) Park. An. 47- 
 
 Gg2
 
 4.52 Of iJie Remedies in Equity^ [Chap. XVI. 
 
 years ; as to inhibit meadow, or other pasture, not ploughed within 
 twenty years, bein^ ploughed; but not against a lessee, who had 
 agre'ed to pay 2oj". per acre per ann. increase of rent, if he ploughed a 
 meadow, Isfc. So it will be granted to inhibit antient inclosures 
 being thrown down ; or houses being pulled down [a). 
 
 So, against tenant after possibility, ifjc. or him who in respect of a 
 trust, iifc. is not liable to an action of waste (^). 
 
 So, against tenant for life, at the suit of the remainder-man in fee, 
 though there is an intermediate remainder : and if tenant for life, with- 
 out impeachment of waste, or any other lessee, has cut timber, so as 
 not to leave sufficient for repairs, the Court will restrain him from 
 cutting any more without leave of the Court [c). Tenant for life, 
 without impeachment of waste, will be restrained also from cutting 
 down trees in lines or avenues, or ridings in a park, whether planted 
 or growing naturally, or trees not of a proper growth to be cut [d) ; 
 and though he be tenant for life, with liberty to cut timber " at sea- 
 sonable times," he is not to cut trees planted for ornament or shelter 
 to the mansion-house, or sapling trees not fit to be cut or felled for 
 timber {e). 
 
 So, he will be restrained from pulling down the antient and capital 
 house, and not only so, but the Court will compel him to put it in 
 the same plight in which he found it {/-). 
 
 But the Court of Chancery, it is said, will not decree a tenant for 
 life to repair, or appoint a receiver with directions to repair [g). 
 
 However, where a jointress gave leave to the next in remainder for 
 life without impeachment of v/aste, to cut timber on the jointure 
 estate, and he dying without issue, the remainder-man over in tail 
 having acquiesced in and encouraged the so doing, he was restrained 
 from an action of waste against the jointress (/^). 
 
 Where the plaintiff and defendant in possession were tenants In 
 common, an injunction to stay waste was refused : but on affidavit of 
 the defendant's insolvency it was granted (i). 
 
 The Court will grant an injunction at the suit of a ground landlord 
 to stay waste in an under lessee, who holds by lease from the original 
 landlord ; upon a certificate being produced of the waste (k). 
 
 So, the mortgagor may have an injunction to stay waste against the 
 mortgiigee, if he cut down timber, and do not apply the money 
 arising from the sale in sinking the interest and principal (/). So, 
 where the mortgagor commits waste, the Court will grant the mort- 
 gagee an injunction; for they will not suffer the mortgagor to pre- 
 judice the Incumbrance (;/;). 
 
 (■«) Com. Dig. tit. Chancoy. fl). II.) (b) \\m\. (,) Ibi.l. (7) 3 Aik. aij. 755. 
 (f> 3lir. U.549. (J) Com. Dig. I// u«/f. Prac. Cli. 454. (g) Ambl. 395. 
 
 (i) I Vcs. yj(>. (0 3 Bi. R. 621. (/) 3 Atk. 723. Ambl. loj.' (/) Ibid. 
 
 {m) Ibid. & 210.
 
 Sect. III.] in the Case of Waste, ^^S 
 
 So, though a rector may cut dov;n timber for the repairs of the 
 parsonage-house or chancel (but not for any common purpose), and is 
 entitled to botes for repairing barns and out-houses belonging to the 
 parsonage, an injunction to stay waste In cutting down timber in the 
 church-yard, will be granted till the cause be heard [a) ; and an in- 
 junction was granted to stay waste against the widow of a rector, at 
 the suit of the patroness, during a vacancy (/?). 
 
 An injunction to stay waste may be granted in favour of a child in 
 ■ventre sa mere (<:). 
 
 But where a clause " without Impeachment of waste," is Inserted 
 in a lease or demise for years, it will have the same efFect as when it 
 is inserted in a conveyance of an estate for life ; and the Court of 
 Chancery will restrain the import of it, in the same manner as in the 
 ease of an estate for life {d). 
 
 The Court will not grant an injunction to stay waste in digging 
 mines, where the defendant sets up a right to the inheritance of the 
 estate, till the answer is come in or the defendant has made default 
 in not putting in his answer, for such injunctions are never granted 
 before the hearing, unless the defendant had only a term In the estate, 
 for years, or for life, and the reversion was in the plaiatifF [e). 
 
 The lord of a manor may bring a bill for an account of ore dugj 
 or timber cut, by the defendant's testator. Indeed, as to the property 
 of the ore or timber, it would be clear even at law that if it came to 
 the executor's hands, trover would lie for It ; and If it had been dis- 
 posed of In the testator's lifetime, the executor, if assets are left, 
 ought to answer for it: but It Is stronger here, by reason that the te- 
 nant is a sort of fiduciary to the lord, and it is a breach of trust, 
 which the law reposes in the tenant, for him to take away the pro- 
 perty of the lord {f). 
 
 A bill, however, for a mere account of timber cut down, was dis- 
 missed by Lord Hardwickey as being the proper subject of an action 
 at law ; but his Lordship added, that there were many instances 
 where the Court had decreed an account in the case of mines, which 
 they would not have done in that of timber.; because the digging of 
 mines is a sort of trade (^). 
 
 But as to the trespass of breaking up meadow, or antient pasture 
 ground. It dies with the person ; wherefore no bill will be entertained 
 for an account thereof (/j). 
 
 Neither is every common trespass a foundation for an injunction, 
 where it is only contingent and temporary : but if It continue so long 
 as to become a nuisance, in such case the Court will interfere and 
 grant an injunction to restrain the person from committing it (/), 
 
 (a) % Atk. 217. {h) % Br. R. sS'i- {/) 3 Atk. an. 
 
 {d) I Cruise's Dig. tit. 8. s. 12. {e) 3 Atk. 496. (/) I P. Wins. 406. 
 
 {g) 3 Atk. a6z. Amb. 54. s. 2. (/j) i P. Wins. 407. (0 3 ^'^- '^'■-
 
 454 Action on the Case for Nuisances, [Chap. XVII. 
 
 But the Court will award a perpetual injunction to restrain waste 
 by ploughing, burning, breaking, or sowing down lands («). 
 
 So, an injunction shall go to restrain the defendant from injuring 
 fish ponds {b). 
 
 Where a bishop was directed by the Court of Chancery, to bring 
 trover in order to try the right as to certain ore dug and disposed of 
 by the tenant of a manor of which the bishop was lord ; upon trial 
 thereof it appeared that there never had been any mine of copper be- 
 fore discovered in the manor, wherefore the jury could not find that 
 the customary tenant might by custom dig and open new copper 
 mines ; so that upon the production of the postea, the Court held that 
 neither the tenant without the licence of the lord, nor the lord with- 
 out consent of the tenant, could dig in those copper mines, being 
 new mines (c). 
 
 On motion to stay waste, a particular title must be shewn ; and 
 the motion should be made upon affidavit of the title, waste com- 
 mitted, and a certificate of the bill filed {d). 
 
 (a) 4 Br. Ca. in Pari. 377. (i) a Br. R. 64. {c) 1 P. Wms. 408. 
 
 (d) 3 Atk. 496. Com. Dig. u( ante. 
 
 CHAPTER XVII. 
 
 Of the Landlord's Remedy against third Persons, 
 
 Section I. By Action 07i the Case for Nuisances, to the 
 Injury of his Reversioii. 
 
 Section II. By Action against the Sheriff, on Stat. 8. 
 Ann. c. 14. for remotiing the Tenant's 
 Goods under an Execution without payitig 
 a Year's Rent. 
 
 Section III. By Action on the Stat. 11 G. 2. c. 19. for 
 assisting the T'enant in a fraudulent Re- 
 moval of his Goods, 
 
 Section I. Action on the Case for Nuisances to the Injury 
 of his Reversion. 
 
 A N action of trespass on the case lies for a nuisance to the habita- 
 
 * tion or estate of another, by whicli remedy the landlord may 
 
 recover, damages commensurate with the degree of injury that he lias
 
 Sect. 1.] to the Injury of his Reversion. 455 
 
 sustained by the deterioration of that property of which the reversion 
 is in him. 
 
 Indeed, touching the remedies afforded to the landlord and the te- 
 nant respectively for a nuisance to the thing demised, an action may 
 be brought by one in respect of his inheritance, for the injury done 
 to the value of it, and by the other, in respect of his possession [a). 
 
 As, if a man have an antient house, and another build so near as 
 to darken his windows, he may have an action up>n the case [b). 
 
 So, if a man build a new house, and afterwards grant the adjacent 
 soil, and the grantee by an edifice upon it stop the lights of the other 
 house, though it was not an antient house j for if a man build a new 
 house upon part of his land, and afterwards sell the house to another, 
 neither the vendor, nor any other claiming under him, may stop the 
 lights : but if he sell the vacant ground to another, and keep the 
 house without reserving the benefit of the lights, the vendee may 
 bmild (<:). 
 
 A custom that one may build upon a new foundation to the ob- 
 struction of antient lights, is void [d). 
 
 If the lights of the house be stopped up by throwing logs, ^c. this 
 action will lie [d). 
 
 If a man fixes a spout to his own house, from whence the rain 
 falls into the yard of another, and hurts the foundation of his build- 
 ings ; this action will lie. — So, if a man dig a pit in his land, so near 
 that my land falls into the pit (i). 
 
 So, it lies against any one who erects any thing offensive so near 
 the house of another, that it becomes useless thereby, as a swinesty, 
 or a lime-kiln, or a dye-house, or a tallow-furnace, or a privy, or a 
 brewhouse, or a tan-vat, or a smelting-house, or a smith's forge (^). 
 
 So, if a man erect a watch-house, stable, ^c. and put filth in it, 
 to the annoyance of a garden (d). 
 
 So, if a parson permit the tithes to continue upon the soil, so that 
 the grass there is corrupted ; or a vendee of hay, after the time agreed 
 for carrying it away [d). 
 
 So, if a lessee overcharge his room with weight, whereby it falls 
 upon the cellar beneath [d). 
 
 So, if a man who ought to inclose against my land, do not inclose, 
 by which the cattle of his tenants enter into my land, and do damage 
 to me. But the action must be brought against the person in posses- 
 sion : for it is clear that an action on the case for not repairing fences 
 whereby another party is damnified, cannot be supported against the 
 owner of the inheritance, when it is in the possession of another 
 person. Deplorable indeed would be the situation of landlords, if 
 
 {a) 4 Burr, 2141. (i) Com. Dig- tit. Action, &c. for a Nuisance, (A.) 
 
 (c) Bull. N. P. 75, {d) Com. Dig. ut ante.
 
 4^56 Actio?! on the Case Jar Nuisances, [Chap. XVI I. 
 
 they were liable to be harassed with actions for the culpable neglect 
 of their tenants (a). 
 
 So an action upon the case Ues, if a man erect a mill so near to my 
 antient mill, that the water to my mill is obstructed or diverted. Soy 
 if part only of the stream is diverted. So, if he stop a watercourse, 
 whereby my land was overflowed. So, if water has been accus- 
 tomed to run to his well, and from thence to his house for his use,. 
 and one diverts the -vtream from coming to the well [b). 
 
 So, a man possessed of an antient ferry may bring an action against 
 one who sets up a new ferry near to k; for if it be an antient ferry 
 he is compellable to keep boats, ^c. (c). 
 
 So, if without warrant one erect a market, to the prejudice of 
 another market (d). 
 
 So, if the soil, over which another has a way, be ploughed by the 
 tenant of the land, it is a nuisance (e). 
 
 If the nuisance be to the damage of the inheritance, he in rever- 
 sion shall have an action for it ; notwithstanding that plaintiiF might 
 have an assise, or quod permittat if). 
 
 The action lies as well against him who continues the nuisance as 
 against him who originally erected it : for though the party having re- 
 covered in one, cannot have another action for the same erection, he 
 may maintain a new action for the continuance of it {g). 
 
 So, if A. recover damages against B, for stopping his lights, and 
 afterward B. assign the lands in which the nuisance was erected, A. 
 may maintain another action against B. for the continuance of the 
 nuisance ; for before the assignment B. was answerable for all the 
 consequential damages, and it shall not be in his power to discharge 
 himself by granting it over : yet A. may bring the action against the 
 assignee. Though formerly a distinction was taken, viz. where the 
 continuance occasions a new nuisance, and where the first erection 
 has done all the mischief; that in the first case the assignee is liable 
 to an action, but not in the second {h). 
 
 So, if A. divert water by a pipe and cock to his house, an action 
 lies against, his wife after his death, if she lives in the house, and 
 uses the water, for every turning of the cock is a new nuisance (/), 
 
 So, if a man erect a house or mill to the nuisance of another, 
 every occupier afterwards is subject to an action for the nuisance {k). 
 So, if a man recover against A. for the erection of a nuisance, he 
 may afterwards maintain an action against him, for the continuance 
 of it ; and this, although he had made a lease to another, for the 
 plaintiff might bring the action, notwithstanding his recovery for the 
 
 (a) Bull. N. 1'. 7,1. (^b) Com. Dig. ut ante. {c) Bull. N. P. 75. 
 
 (</) Com. I)i{'.. u/ «//r<^. (r) Ibid. (/) Com. Dig. u< an//-. B. 
 
 {g) 1 Ld. Raym 3;o. (^h) Bull. N. P. 75. (») Com. Dij;. lit. Action, &c. 
 
 lot a nuiaance [A.] (*) Cro. J*c. jjj. 
 
 8
 
 Sect. I.] to iJie Injury of his Reversion* 457 
 
 erection, against either the tenant for years or his under-lessee, at his 
 election {a). 
 
 AH these cases go upon this principle, that every man should so 
 use his own as not to damnify another ; for some damage must be 
 proved in order to sustain this action ; the mere act of diverting a 
 watercourse, Ijfc. not being sufficient, if it do no injury to the 
 plaintiff's inheritance, or possession (b). 
 
 Of the Declaration. — In an action upon the case for a nuisance, the 
 plaintiff must shew himself entitled to the thing to which the nui- 
 sance was done at the time of the nuisance : as in this action for 
 diverting his watercourse to his mill, he must shew, that he was 
 seised of the mill at the time : but a seisin in law is sufficient for this 
 action (c). 
 
 Therefore, if the plaintiff allege that his father was seised and died, 
 and a descent to himself by virtue of which he was seised, without 
 saying that he entered, it will be well [d). 
 
 But in such action the plaintiff need not set forth his title to the 
 premises; it is sufficient for him to shew that he was possessed of 
 them {e). 
 
 He ought, also, to shew that the diversion was a prejudice to 
 his mill: for as damage must be proved, such allegation is ma- 
 terial (/). 
 
 So, he ought to allege a continuance of the nuisance to the time of 
 the action only, for adhuc continuatum existit is ill ; for that goes to the 
 time of the declaration. But, if the declaration shews a continuing 
 nuisance, it is not material, though the first nuisance was before the 
 plaintiff was entitled (g). 
 
 So, if the plaintiff allege, that his house, mill, iffc. was an antient 
 house, l!fc. without prescribing for it, or that it was antiently 
 erected ; for that is tantamount (^h). 
 
 So, a declaration for stopping lights is sufficient, though it do not 
 say an antient messuage : and if the plaintiff allege that he was pos- 
 sessed of such a house, ^c. in which he ought to have so many lights, 
 ^c. without more, it is sufficient (i). 
 
 So, a declaration for diverting a watercourse, which was used to 
 run to a well, and from thence to his house, is sufficient ; though it 
 do not say from what place it runs to the well. This was ruled after 
 verdict, for it ought to be proved (k). 
 
 So, a declaration against a man for causing water to flow through 
 pipes near the foundation of the plaintiff's house, and neglecting to 
 repair them, so that the water flowed through them and sapped the 
 foundation of the plaintiff's house, is unexceptionable after verdict, 
 
 (a) Salk. 460. (h) Bull. N. P. 75. 6 Mod. 314. (c) Com. Dig. ut ante. [E. i.] 
 
 Id) Ibid. [e) a Ld. Raym. 1569. (/) Ibid. (g) Ibid. 
 
 (i) Ibid. (0 Ibid. I Tidd'i Pract. 396. (i) 2 Ld. Raym. 1569.
 
 458 Of the Action against the Sheriff^, [Chap, XVII. 
 
 though it do not expressly state that the pipes were the defendant's, 
 that he laid them there, or that he is bound to repair them [a). 
 
 Touching the pleas to this action, the general issue is, not guilty ; 
 which may be pleaded where case is brought for a nuisance in over- 
 hanging the plaintiff's house, i^c. or for a nuisance in stopping his 
 lights ip). 
 
 So, the custom of the city of London^ by which a man may build 
 upon an antient foundation against the lights of another ; to which 
 the plaintiff may reply by denying the custom, which shall be tried 
 by the mouth of the Recorder (r). 
 
 But to an action upon the case for a nuisance the defendant cannot 
 plead, that being a blacksmith, he came to the house wherein he 
 dwells, by the advice of the plaintiff himself, and there erected a 
 forge for his trade (d). 
 
 In an action for diverting a watercourse, the defendant pleaded, 
 that he was seised of two closes through which, ^c. and that he 
 and all those, ^c. had used to water their cattle in the same water- 
 course, Sffr. and the Court held that one prescription could not be 
 pleaded against another, without a traverse : but if upon the general 
 issue it had been proved that the water was usually drunk up by the 
 cattle of the defendant, the plaintiff would have failed in his pre- 
 scription {e). 
 
 If the verdict jEinds generally, that the house is not erected upon 
 the antient foundation, the whole shall be abated, though it exceed 
 only a foot [f). 
 
 Section II. Of the Action on the Case against the 
 Sheriff for removing Goods under an Execution, nithout 
 paying a Year's Rent, hy Virtue of the Stat. 8 Ann. 
 c. 14. 
 
 Executions at common law took place of all debts that were not 
 specific liens ; even of rents due to landlords. At length, it being 
 thought hard that landlords should not have something like a specific 
 lien. Parliament gave them a remedy for one year's rent, but no more, 
 because vigilantibus et non dormietitihus jura suhvetiient [g). 
 
 The remedy in question is by action on the case by virtue of the 
 Stat. 8 Ann. c. 14. for the more easy and effectual recovery of rents 
 reserved on leases for life or lives, term of years, at will, or other- 
 wise, by sect. 1. of which it is enacted, " That no goods or chattels 
 ■whatsoever, lying or being in or upon any messuage, lands or tene- 
 ments which arc, or shall be leased for life or lives, term of years' at 
 
 (<i) a L(l. il.iym. 1569. (b) Com. Die. ut anU.(\\ %.) (c) Ibid. {d) Ibid. 
 
 (0 Bull. N. P. 75. (/) Com. Dig. ut ante. (j;) Z Wils. 141.
 
 Sect. II.] for removing Goods, &^r. 459 
 
 will, or otherwise, shall be liable to be taken by virtue of any execu- 
 tion on any pretence whatsoever, unless the party at whose suit the 
 said execution is sued out, shall before the removal of such goods 
 from off the said premises, by virtue of such execution or extent, 
 pay to the landlord of the said premises or his bailiff, all such sum or 
 sums of money as are or shall be due for rent for the said premises at 
 the time of the taking such goods or chattels by virtue of such execu- 
 tion ; provided the said arrears do not amount to more than one year's 
 rent : and in case the said arrears shall exceed one year's rent, then 
 the said party, at whose suit such execution is sued out, paying 
 the said landlord or his bailiff one year's rent, may proceed to execute 
 his judgment, as he might have done before the making of the Act ; 
 and the sheriff or other officers are thereby empowered and required 
 to levy and pay to the plaintiff, as well the money so paid for rent, 
 as the execution money. 
 
 Sect. 8. " Provided ahvays, that nothing in the Act contained 
 shall be construed to extend to hinder or prejudice her [his] Majesty, 
 her [his] heirs or successors, in the levying, recovering or seizing, 
 any debts, fines, penalties, or forfeitures due or payable to her [his] 
 Majesty, i!fc. but that it shall and may be lawful for her [his] Ma- 
 jesty, i5'c. to levy, recover, and seize such debts, ^c. in the same 
 manner as if the Act had never been made," 
 
 This statute shall have a liberal construction : and the words 
 ** party at whose suit the execution is sued out," ^c. shall be con- 
 strued to mean either the plaintiff or defendant, whose judgment and 
 execution it is («). 
 
 The action lies by an executor or administrator against the bailifF 
 of a liberty for executing a Jieri facias, and removing the goods ofF 
 the premises before the landlord was paid a year's rent : for the testa- 
 tor or intestate had an interest for which his executor or admini- 
 strator may bring an action [b). 
 
 But, where the goods were taken and the money levied before ad- 
 ministration taken out, it was held, that as execution was executed, 
 that is to say, as the goods were actually sold, the administrator 
 came too late. Poiuis, J. was however of opinion, it seems, that 
 the administration should have relation to the time of the death of 
 the intestate, because, by the ecclesiastical law, it is not to be granted 
 till within fourteen days of an intestate's death : but the rest of the 
 Court denied this proposition ; for relation-s which are but fictions in 
 law, shall not, they said, devest any right vested in a stranger mesne 
 between the intestate's death and the administration. The statute, it 
 is true, was made for the benefit of landlords, and to prevent the 
 tenant's setting up a sham execution to defeat him of the rent. He 
 
 (a) aWiis. I4X. (i) I Str. ais. Fort. 359, 360.
 
 460 Of the Action against the Sheriff, [Chap. XVII. 
 
 has still the same remedy that he had before, and if he will have the 
 additional remedy, he must make himself capable of it, which the 
 administrator here could not. He could not demand the rent, it not 
 being certain that he would be administrator, for the ordinary might 
 refuse, and the sheriff is not obliged to wait and see if any body 
 comes and demands the rent. He cannot take notice what arrears 
 there are; but if the landlord comes and acquaints him with itj^, 
 then, and not till then, is he obliged to see the year's rent satisfied 
 before removal of the goods. If it should be otherwise, it would be 
 in the power of him that is entitled to the administration to defeat 
 the plaintiff of his execution ; for suppose he never takes administra- 
 tion, must the execution stand still ? If the landlord himself had not 
 demanded before removal, he had been too late : here was no land- 
 lord at all, so that there could be no demand, and It Is now too late 
 to ask it {a). 
 
 Therefore notice to the sheriff is necessary In order to subject him 
 to an action for removing the goods before a year's rent be paid (^) ; 
 for neither a plaintiff nor defendant has any right to go upon the pre- 
 mises, and the law gives the entry to the sheriff only by virtue of 
 the execution ; but after he has notice of rent being due to the land- 
 lord, he cannot remove the goods before he has satisfied the landlord 
 one year's rent. The landlord shall have the like benefit of distress 
 for one year's rent as if there had beenvno execution at all : unless 
 the rent be paid, the sheriff must quit, and if he do not quit, a 
 special action on the case lies against him after notice of the rent 
 due (c), — The want of alleging notice, however, is helped by the 
 verdict {d). 
 
 The landlord's rent must be paid without any deduction ; the 
 sheriff therefore cannot claim poundage of him {e). 
 
 The remedy, as before observed, is for one year's rent and no 
 more. Therefore, where there are two executions, the landlord can- 
 not have a year's rent on each : for the Intent of the Act was only to 
 continue a lien as to one year, and to punish him for his laches, If 
 he let more run In arrear (/"). 
 
 The landlord can only claim the rent due at the time of taking the 
 goods, and not that which accrues after the taking and during the 
 continuance of the plaintiff in possession (^). 
 
 If the goods seised be not sold or removed by the sheriff, so as to 
 transfer the property therein, but the defendant pays the debt and 
 costs, the landlord, though he has given notice and demanded the 
 rent, is not entitled In such case. 
 
 A bill of sale was made by the sheriff, and it was held to be a re- 
 moval of the goods taken by a writ of fieri facias (Jj). 
 
 (<v) I Sir. 97. (U) Ibid. & 214. (0 a Wils. 141- ('/) I ^"- *»4- 
 
 (0 Ibid. 643. (/) % atr. 1024. (.?) I M. & S. 243- CO Barn. an.
 
 Sect. II.] for removing Goods, S;c. 461 
 
 If an extent comes in, the landlord cannot claim his rent although 
 a distress be taken the day before.— So, on extent or an outlawry, 
 although he had distrained three days previous to the entry, and mo- 
 tion be made to be paid under the statute ; but this is denied. If a 
 distress be taken October 29, and an extent dated November 4, and 
 corn, ^c. seised, the landlord cannot have his rent, for no property 
 was devested by the distress, and they were in the landlord's hands 
 by way of pledge ; but an attachment was refused, although it was a 
 contempt to oppose the extent (n). 
 
 An immediate extent against the king's debtor tested after a dis- 
 tress taken for rent justly due to the landlord, with notice to the 
 tenant being the king's debtor, and appraisement of the goods and 
 chattels, but before sale, shall prevail against the distress (b). 
 
 A distinction has been taken between proceedings at the suit and 
 for the benefit of the crown, and an outlawry in a civil suit {c) : 
 and in the latter instance it has been ruled that *< the landlord ought 
 to be satisfied a year's rent, because a capias utlagatum at the suit of 
 the party is to be considered only as a private execution ;" but if the 
 outlawry be reversed, it would be otherwise {d). 
 
 A commission of bankrupt is not considered as an execution quoad 
 hoc : therefore, as a landlord may on the one hand distrain for his 
 whole rent after assignment or sale by the assignees, if the goods are 
 not removed, so on the other hand, if he suffer the assignees to sell 
 off the goods, he is not entitled to his rent, but must come in pro rata 
 with the other creditors under the commission (e\ 
 
 The ground landlord of a house, in which an under-lessee dwelt, 
 against whom an execution was sued out, is not within the statute 
 which extends only to the immediate landlord (y'). 
 
 In an action against the sheriff for taking goods without leaving a 
 year's rent, the declaration need not state all the particulars of the de- 
 mise : but if it do, and they are not proved as stated, there shall be 
 a nonsuit. The distinction is between that which may be rejected as 
 surplusage, which might have been struck out on motion, and what 
 cannot. — Where the declaration contains impertinent matter, foreign 
 to the cause, and which the Master, on a reference to him, would 
 strike out (irrelevant covenants for instance,) that will be rejected by 
 the Court and need not be proved. But if the very ground of the 
 action is mis-stated, as where you undertake to recite that part of a 
 deed on which the action is founded, and it is mis-recited, that will be 
 fatal : for then the case declared on is different from that which is 
 proved, and you must recover secundum allegata et probata {£). 
 
 The landlord is not always driven to this action for his remedy, for 
 
 (a) Imp. Sheriff. 170, &:c. Eurii's Just. tit. Distress, xvii. 
 
 \b) Park. R. H2. ^ Ves. 288. (<:) Imp. Sheriff. 171. {i) ^ T. R. 264. 
 
 W I Atk. 103. (/) a Str. 787. (ff) Doug. 665. i T. R. 236.
 
 462 The LandtorcVs Remedy [Chap. XVII. 
 
 there is a shorter way, by motion to the Court, that he may Iiave res- 
 titution to the amount of the goods the sheriff has sold ; as in the 
 principal case, in which the bailiff became a wrong-doer immediately 
 after he had notice of rent being due to the landlord (a). 
 
 Instead of bringing an action against the sheriff, Isfc, when the 
 goods are sold after notice, the best way for the landlord is to move 
 the Court that he may have restitution to the amount of the goods 
 which the sheriff has sold, if they amount to less than a year's rent, 
 or if they amount to more, then to have so much as will satisfy a 
 year's rent [b). 
 
 On motion to have rent paid out of the money levied, it appeared 
 that the sheriff's warrant on the execution, after it was sealed, had 
 been altered, and a new bailifJ's name inserted. Per Cur. The war- 
 rant being altered, no goods are taken in execution thereby. Let the 
 bailiff and attorney privy to the alteration, shew cause why an attach- 
 ment should not issue against them {c). 
 
 Section III. The Landlord's Remedy on the Statute 1 1 
 Geo. 2. c. 1 9. touching Goods fraudulenily carried off 
 the Premises. 
 
 The statute 1 1 G. 2.c. 19. j-. i. enacts that " In case any tenant 
 or tenants, lessee or lessees, for life or lives, term of years, at will, 
 sufferance, or otherwise, of any messuages, lands, tenements, or 
 hereditaments, upon the demise or holding whereof any rent is re- 
 served, shall fraudulently or clandestinely convey away or carry off or 
 from such premises, his, her, or their goods or chattels, to prevent 
 the landlord or lessor, landlords or lessors, from distraining the same 
 for arrears of rent so reserved, it shall be lawful to or for every land- 
 lord or lessor, landlords or lessors, or any person or persons by him, 
 her, or them for that purpose lawfully impowered, within the space of 
 thirty days next ensuing such conveying away or carrying off such 
 goods or chattels, to take and seize such goods and chattels wherever 
 the same shall be found, as a distress for the said arrears of rent j and 
 the same to sell or otherwise dispose of, in such manner as if the said 
 goods and chattels had actually been distrained by such lessor or land- 
 lord, lessors or landlords, in and upon such premises for such arrears 
 of rent." 
 
 Sect. 2. ** Provided always, that no landlord or lessor, or other per- 
 son entitled to such arrears of rent, shall take or seize any such goods 
 or chattels for the same which shall be sold bond fide, and for a valu- 
 able consideration, before such seizure made, to any person or persons 
 not privy to sucJi fraud as aforesaid." 
 
 {y) a Wils. 141. (A) % Sell. Pract. 570, (c) Barn. lyy .
 
 Sect. III.] on the Statute 11 G. 2. c. 19. 46S 
 
 By sect. 3. " To deter tenants from such fraudulent conveying 
 away their goods and chattels, and others from wilfully aiding or as- 
 sisting therein, or concealing the same, it is enacted that if any per- 
 son or persons shall wilfully and knowingly aid and assist any such 
 tenant or lessee in such fraudulent conveying away or carrying ofF of 
 any part of his or her goods or chattels, or in concealing the same, 
 all and every person and persons so offending shall forfeit to the land- 
 lord or landlords, lessor or lessors, from whose estate such goods and 
 chattels were fraudulently carried off as aforesaid, double the value 
 of the goods by him, her, or them respectively carried off or con- 
 cealed as aforesaid j to be recovered by action of debt in any of his 
 Majesty's Courts of Record at JVestmitister, or in the Courts of Ses- 
 sion in the counties palatine of Chester, Lancaster, or Durham, re- 
 spectively, or in the Courts of Grand Sessions in Wales, wherein no 
 essoign, protection or wager of law shall be allowed, nor more than 
 one imparlance." 
 
 Sect. 4. " Provided always, that where the goods and chattels so 
 fraudulently carried ofFor concealed shall not exceed the value of 50/. 
 it shall be lawful for the landlord or landlords, from whose estate such 
 goods and chattels were removed, his, her, or their bailiff, servant or 
 agent, in his, her, or their behalf, to exhibit a complaint in writing 
 against such offender or offenders, before two or more justices of the 
 peace of the same county, riding, or division of such county, residing 
 near the place whence such goods and chattels were removed, or near 
 the place where the same were found, not being interested in the lands 
 or tenements whence such goods were removed ; who may summon 
 the parties concerned, examine the fact, and all proper witnesses upon 
 oath, or if any such witness be one of the people called Quakers, upon 
 affirmation required by law ; and in a summary way to determine, 
 whether such person or persons be guilty of the offence with which 
 he or they are charged ; and to inquire in like manner of the value of 
 the goods and chattels by him, her, or them respectively so fraudu- 
 lently carried off or concealed as aforesaid j and upon full proof of 
 the offence, by order under their hands and seals, the said justices may 
 and shall adjudge the offender or offenders to pay double the value of 
 the said goods and chattels to such landlord or landlords, his, her, or 
 their bailiff, servant, or agent, at such time as such justices shall ap- 
 point : and in case the offender or offenders, having notice of such 
 order, shall refuse or neglect so to do, may and shall, by warrant 
 under their hands and seals, levy the same by distress and sale of the 
 goods and chattels of the offender or offenders, and for want of such 
 distress, may commit the offender or offenders to the house of cor- 
 rection, there to be kept to hard labour, without bail or mainprize, for 
 the space of six months, unless the money so ordered to be paid as 
 aforesaid shall be sooner satisfied." 
 
 7
 
 464 The Landlord's Remedy [Chap. XVII. 
 
 Sect, 5. " Provided always, that it shall be lawful for any person 
 who thinks himself aggrieved by such order of the said two justices, 
 to appeal to the next General or Quarter Sessions, for the same 
 county, who may and shall hear and determine such appeal, and give 
 such costs to either party as they shall think reasonable, whose deter- 
 mination therein shall be final." 
 
 Sect. 5. " Provided also, that where the party appealing shall enter 
 into recognizance with one or two sufficient surety or sureties in 
 double the sum so ordered to be paid, with condition to appear at 
 such General or Quarter Sessions, the order of the said two justices 
 shall not be executed against him in the mean time." 
 
 By sect. 7, it is further enacted, " That where any goods or chat- 
 tels fraudulently or clandestinely conveyed or carried away by any te- 
 nant or tenants, lessee or lessees, his, her, or their servant or servants, 
 agent or agents, or other person or persons aiding or assisting therein, 
 shall be put, placed, or kept in any house, barn, stable, out-house, 
 yard, close or place, locked up, fastened, or otherwise secured, so as to 
 prevent such goods or chattels from being taken and seized as a dis- 
 tress for arrears of rent, it shall be lawful for the landlord or land- 
 lords, lessor or lessors, his, her, or their steward, bailiff, receiver, or 
 other person or persons empowered to take and seize, as a distress for 
 rent, such goods and chattels (first calling to his, her, or their assist- 
 ance the constable, headborough, borsholder, or other peace officer of 
 the hundred, borough, parish, district, or place, where the same shall 
 be suspected to be concealed, who are hereby required to aid and as- 
 sist therein ; and in case of a dwelling-house, oath being first made 
 before some justice of the peace, of a reasonable ground to suspect 
 that such goods or chattels are therein), in the daytime to break open 
 and enter into such house, barn, stable, out-house, yard, close, and 
 place, and to take and seize such goods and chattels for the said ar- 
 rears of rent, as he, she, or they might have done by virtue of this or 
 any former Act, if such goods and chattels had been put in any open 
 field or place." 
 
 Justices either of the county from which the tenants fraudulently 
 remove goods, or of that in which they are concealed, may convict 
 the offiinders in their respective counties (c). 
 
 But in order to justify the landlord in seizing, under this statute, 
 within thirty days, goods removed off the premises, as a distress for 
 rent wherever found, the removal must have taken place after the rent 
 became due, and must have been secret, and not open and in the face 
 of day, as in such case the removal could not be said to be clandes- 
 tine, within the meaning of the statute {b). 
 
 An averment in a declaration in an action of debt on Sect. 3. of 
 
 (.') I Call!. R. 156. {b) 3 F,sj..R. 16,
 
 Sect. III.] on the Statute 11 G. 2. c. 19. 465 
 
 this statute, to recover double the value of goods removed in order to 
 prevent a distress, that " a certain sum was due for rent'' before the 
 goods were removed, need not be precisely proved as laid ; for whe- 
 ther 5/. or any other sum were in arrear is perfectly immaterial ; the 
 damages not being to be measured by the quantity of rent, but by the 
 value of the goods removed. Besides, the gist of the action is the 
 fraudulent removal of the goods from the premises in order to defeat 
 the distress ; it was therefore immaterial to the defendants whether 
 one sum or another were due for rent, for in either case they are 
 guilty of a tort. Where the variance, therefore, does not consist in 
 any part of the contract, but in an averment of matter subsequent to 
 the contract, such averment being merely a matter of inducement to 
 the action, need not be precisely proved (a). 
 
 So the notice of distress may be abandoned ; for a party may dis- 
 train for rent and avow for fealty (^). 
 
 Trespass for breaking and entering the plaintiff's house and dis- 
 training his goods ; plea the general issue. The defence was, that 
 the plaintiff had held the house as tenant to the defendant, that the 
 goods distrained were clandestinely and fraudulently conveyed away 
 from this house on the 28th day of September y to prevent the landlord 
 from distraining them for the arrears of rent to become due the fol- 
 lowing day, and that they were within 30 days afterwards taken and 
 seized as a distress for the said arrears of rent. Holt, for the plaintiff 
 contended, that there was no right to follow these goods, as they were 
 removed before the rent became due {c) ; and, secondly, that at all 
 events this was no defence under the general issue, as the goods 
 were not taken upon the premises for which the rent became due {d). 
 Lord Ellenboroughy C. J. Upon the first point I entertain consider- 
 able doubts, and if the cause had turned upon that, I should have re- 
 served it for the opinion of the Court. Where goods are fraudu- 
 lently removed from the premises in the night, to prevent the land- 
 lord from distraining upon them for arrears of rent to become due 
 next morning, the case certainly comes within the mischief intended 
 to be remedied by 11 G.2.c. 19. and there is some ground to contend 
 it comes within the provisions of the statute. But upon the second 
 point, I am clearly of opinion that the defendant was bound to justify 
 specially [e). 
 
 When the double value of the goods fraudulently removed to pre- 
 vent a distress, does not exceed 50/., the party injured, may, at his 
 option, proceed either by action or in a summary way before a ma- 
 gistrate ; and the fact of the party having, in the first instance, made 
 
 («) 3 T. R. 645, 6. (i) Ibid. (0 3 Esp. 15. (d) I Esp. 257. 
 
 (f) 4 Camp. 136. 
 
 Hh
 
 466 Of the Action of Replevin. [Chap. XVIII. 
 
 his complaint before a magistrate, will not preclude him from after- 
 wards maintaining an action [a). 
 
 [See also respecting this statute as it regards the duty of a magis- 
 trate. I Bnrfi "just. tit. Distress^] 
 
 {({) I Stark. 169. 
 
 CHAPTER XVIII. 
 
 Of the Remedies for Tenants against Landlords, 
 Of the Action of Replevin, 
 
 Section I. Of the Action. 
 Section II. Of the Judgment, c^r. 
 
 Section I. Of the Action of Replevin. 
 
 ri^HE action of replevin is founded upon, and is the regular way 
 -* of contesting the validity of, a distress : being a re-delivery of 
 the pledge, or thing taken in distress, to the owner, by the sheriff ov 
 his deputy ; upon the owner giving security to try the right of the 
 distress, and to restore it, if the right be adjudged against him : after 
 which the distrainer may keep it till tender made of sufEcient amends, 
 but must then re-deliver it to the owner {a). 
 
 In this writ or action, both the plaintiff and defendant are called ac- 
 tors i the plaintiff suing for damages, and the defendant or avowant 
 to have a return of the goods or cattle (i^). 
 
 Replevin is an action founded on the right, and different from tres- 
 pass, or detinue : and it is now held, that as no lands can be reco- 
 vered in this action, it cannot, with any propriety, be considered as a 
 real action, though the title of lands may incidentally come in ques- 
 tion ; as it may do in an action of trespass or even debt, which are 
 actions merely personal {c). 
 
 In our account of this action, we shall endeavour to confine our 
 notice of it as it regards distress for rent, or cattle damage feasant ; 
 the services of copyholders, <jfc. being without the scope of our con- 
 sideration. 
 
 Who way have Replevin. — This remedy may be said to be of com- 
 mon right : for if a man by his deed grant a rent with a clause of 
 
 (n) .1 131. Com. 147. Ih) Bnc. Abr.tit. RqiWviii, !cc. (A.) {c) Ibid.
 
 Sect. I.] Of the Acl'ion of Replevin, 407 
 
 distress, and gr:int further that the party shall keep the goods dis- 
 trained against gages and pledges, until the rent be paid, yet shall the 
 •sheriff replevy the goods distrained ; for it is against the nature of 
 such a distress to be irreplevisable, and by such an invention tlie cur- 
 rent of replevins would bo overthrov^n to t!ie hindrance of the com- 
 monwealth ; and therefore it was disallowed by the whole Court, and 
 awarded that the defendant should gage deliverance [that is, engage to 
 deliver the distress to the owner on liis pledging to try the distrainer's 
 right thereto] or else go to prison (^ci). 
 
 It is a general rule that the plaintiff ought to have the property of 
 the goods in him at the time of the taking : but there arc two kinds 
 ■of properties : a general property, which every absolute owner hath, 
 and a special property, as goods pledged or taken to manure his lands, 
 -or the like, and of either of these replevin lies {b). 
 
 An executor may have z. replevin for goods taken in the llfetiine of 
 liis testator (r). 
 
 So, if the cattle or other goods of a feme sole be taken and she af- 
 terwards intermarry, the husband alone . may have replevin : and if 
 they join, judgment will not be arrested after verdict, because the 
 Court will presume them jointly interested (as they may be if a dis- 
 tress be taken of goods of which a man and woman were joint-te- 
 nants, and afterwards intermarry i ; the avowry admitting the property 
 to he in the manner it is laid. — But in replevying goods which a wife 
 holds as executrix, this action cannot be brought by cither of them 
 singly, but they must be joined {d). 
 
 The right of the tenant to replevy, is not taken away by tlie re- 
 moval and appraisement of the goods after the expiration of live days ; 
 it continues until the same are sold (e). 
 
 Where cattle put on the premises for the purpose of taking posses- 
 sion where the tenant had held over, were distrained by the tenant on 
 the ground of being damage feasant, on replevin being brought, L. 
 Ken-jon said, The case is too plain for argument. Here is a tenant 
 from year to year, whose term expired upon a proper notice to quit, 
 and because he holds over in defiance of law and justice, he now at- 
 tempts to convert the lawful entry of his landlord into a trespass. If 
 an action of trespass had been brought, it is clear that the landlord 
 could have justified under a plea of liberum te?iementum. — If, indeed, 
 the landlord had entered with a strong hand to dispossess the tenant 
 by force, he might have been indicted for a forcible entry ; but theje 
 can be no doubt of his right to enter upon the land at the expiration 
 of the term. There is not the slightest pretence for considering him 
 a trespasser in this case, and therefore there must be judgment for the 
 plaintiff (/). 
 
 (a) Co. Lit. 145. b. (J>) Ibid. (0 Bull. N. p. 53. (,/) !I)i><. Bac. Abr. lit- 
 
 Replevin, &c. (G.) '«) ," Taunt. Ji5;t. i Mnis. 13^-. s. c, ( f) 7 T. R. ,131. 
 
 ?I h 2 '
 
 468 Of the Action of Replevin, [Chap. X VIIL 
 
 If the goods of several persons be taken they cannot join in re- 
 plevin, but every one must have a several action (a). 
 
 Tenants in common, therefore, should not join. — But coparceners 
 should join, for they make but one heir : and for the same reason, so 
 should joint-tenants (J?). 
 
 Jgainst w/^oCT.— Replevin lies against him who takes the goods, and 
 also against him who commands the taking or against both (c). 
 
 So it lies against him who takes damage feasant, if he detains after 
 amends tendered (d). 
 
 Replevin lies for ivhat. — Replevin lies for whatever is capable of 
 being distrained, and for nothing else ; for the action is the remedy of 
 the party whose goods are distrained. 
 
 Replevin, therefore, does not lie of things /era mtura ; nor of deeds 
 or charters ; nor of money ; nor of leather made into shoes (<?). 
 
 But if a mare in foal, a cow in calf, ts'c. be distrained, and they 
 happen to bring forth their young whilst they are in custody of the 
 distrainer, a replevin lies of the foal, calf, &c. (/). 
 
 Replevin lies of a ship : so, of the sails of a ship {g). 
 
 But no replevin lies of goods taken beyond the seas, though brought 
 hither by the defendant afterwards. 
 
 In those cases in which replevin does not lie, the party may bring an 
 action of detinue to recover the deeds, goods, ^c.ifi specie (Ij). 
 
 The plaintiff having brought replevin for goods levied under a war- 
 rant of distress for an assessment, by a special sessions under the 
 Highway Act, 13 Geo. 3. chap. 78. sect. 47, on the ground of the pre- 
 mises for which he was assessed, being situated without the township 
 which was liable to repair the road ; the Court refused to set aside the 
 proceedings (/'). 
 
 The several kinds of Replevin — Replevin may be made either by ori- 
 ginal writ of replevin at common law, or by plaint by the statute of 
 Afarlbridgey 5 2 i/. 3 . <r, 2 1 . 
 
 Formerly, when the party distrained upon intended to dispute the 
 right of the distress, he had no other process by the common law thari 
 by a writ of replevin, replegiari facias ^ which issued out of Chancery, 
 commanding the sheriff to deliver the distress to the owner, and after- 
 wards to do justice in respect of the matter in dispute in his own 
 County Court. But this being a tedious method of proceeding, the 
 beasts and other goods were long detained from the owner, to his 
 great loss and damage. 
 
 The statute oi MarlbridgCj therefore, directs, " That (without suing 
 a writ out of the Chancery) if the beasts of any person be taken and 
 wrongfully withholdcn, the sheriff, after complaint made to him 
 
 {u) Co. Lit. 145. (A). (/,) Cro. Kliz. 530. Salk. 390. Bull. N. P. Si- 
 
 (<) 2 Roll. 43»- '• 5- {<!) V. N. B. 19. G. (<•) Bac. Ahr. tit. R.iilcvin, &c. (F.) 
 
 (/) IIjuI- (i) ll>iil. (A) Ibid. n. (,) % BoS: & Tull. N, K. .^99-
 
 Sect. I.] Of the Action of Replevin. 469 
 
 thereof, may deliver them without let or gahisaying of him that took 
 the beasts, if they were taken out of liberties ; and if they were taken 
 within liberties, and the bailiffs of the liberty will not deliver them, 
 then the sheriff, for default of those bailiffs, shall cause them to be 
 delivered." 
 
 Also, for the more speedy delivery of cattle taken by way of dis- 
 tress, the statute of the first of Philip and Mary, c. 12. provides, that 
 the sheriff shall make, at least, four deputies in each county, dwelling 
 not above twelve miles from each other, for the sole purpose of 
 making replevins, under a penalty of 5/. for every month such 
 deputies shall be omitted to be provided. 
 
 When any man's goods, therefore, are distrained or impounded, he 
 may, upon application for the purpose to one of these deputies, upon 
 giving pledges to return the distress if judgment be against him, have 
 a replevin, by which his goods will be restored to his possession. 
 
 But when an Act of Parliament orders a distress and sale of goods, 
 it is in the nature of an executipn, and replevin does not lie [a). 
 
 Out of what Court Replevin issues. — ^The sheriff, upon plaint made 
 to him without writ, may either by parol or precept command his 
 bailiff to deliver the goods, that is to make replevin of them ; and by 
 the words in the statute of Marltridge, " after complaint made to him 
 thereof," he may take a plaint out of the County Court, and make 
 replevin presently, which he is to enter in the Court (^). 
 
 By this statute, the sheriff may hold plea in the County Court on 
 replevin by plaint, whatever may be the value of the subject in dis- 
 pute, although in other actions he shall only hold plea where the 
 matter is under /\os. value; and the plaint may be taken at any time 
 as well out of, as in Court. But if the taking be in right of the 
 Crown, or if any thing touching the freehold come in question, or 
 antient demesne be pleaded, or if the distrainer claim property in the 
 goods, and on a writ de propriet ate probanda , they be found to be his, 
 the sheriff can proceed no further, but must return the proceedings 
 into the Court of K. B. or C. P. to be there, if thought adviseable, 
 finally determined {c). 
 
 But either party may, by the writs o^ poney and recordari facias y re- 
 move a replevm to these superior courts : the plaintiff at his election, 
 the defendant upon reasonable cause. It is therefore usual to carry it 
 up, in the first instance, to Westminster Hall(d). 
 
 The writ of replevin issues out of the Court of Chancery, and is 
 returnable only into the Court of King's Bench, Common Pleas, the 
 Court of the Cinque Ports, and the County Court {e). 
 
 If the sheriff makes replevin he need not return the writ ; but if he 
 does, he ought to return the cause ; and if he do not, an attachment 
 
 (a) Bac. Abr. tit. Replevin, &c. (C) {b) Bull. N. P. ja. (c) % Bl. Com. 149. 
 
 (</) Co. Lit. 145. b. z Cromp. Piact. 227. (?) Z Inst. 312.
 
 470 ()/' Ihc Action of Replevin. [Cluip. XVIIL 
 
 lies against him to the coroners, commanding them to attach the sheriff' 
 for his contempt, and in the interim make replevin {a). 
 
 Proceedings in replevin cannot be carried on in the Hundred Court 
 Baron, or any other Court claiming a jurisdiction over such proceed- 
 ings by prescription ; unless perhaps by process of the Court after a 
 plaint entered. But it lies by plaint in London (/>). 
 
 If the distress be made in a franchise or bailiwick, the sheriff is to 
 direct the replevin to the bailiff thereof to deliver the goods upon 
 pledges, and if he make no answei', or return that he will make no 
 deliverance, or the like, then the sheriff may enter into the liberty, 
 and make deliverance j and if the distress be taken without the liberty 
 and impounded within the liberty, then the sheriff may enter and 
 make deliverance, and need not first make out a warrant to the sheriff 
 of the liberty [c). 
 
 But if a man were to presume to replevy goods, seized in order to 
 condemnation, it would be a contempt of the Court of Exchequer, 
 for which an attachment v/ould be granted instantly [d). 
 
 The action of replevin is of two sorts : i. in the dciiuetj i. in the 
 deihmit. Where the party has had his goods re-delivered to him by 
 the sheriff upon a writ of replevin, or upon a plaint levied before 
 him, the action is in the detiniiity " wherefore he detained the goods," 
 ^c. but where the sheriff has not made such replevin, but the dis- 
 trainer still keeps possession, the action is in the detind, *' wherefore 
 he detains the goods," ^c. — ^The advantage that the plaintiff has in 
 bringing an action of replevin in the detitiety instead of an -action of 
 trespass dc bonis asportatisy is, that he can oblige the defendant to re- 
 deliver the goods to him immediately, in case, upon making his 
 avowry, they appear to be replevisable : but as he may more speedily 
 have them delivered immediately after they are distrained by applica- 
 tion to the sheriff', the action in the dctinet has fallen into disuse, and 
 is never brought, unless the distrainer has eloigned [removed] the 
 goods so that the sheriff cannot get at them to make replevin ; where- 
 upon, after avowry made, the plaintiff* may pray that the defendant 
 gage deliverance; or he may act as mentioned under title the lurk of 
 ivithcrnavi which v'ulf postea [e). 
 
 The method of proceeding usually adopted now is by plaint, that 
 by writ being generally disused. 
 
 The sheriff" is obliged to grant replevins in all such cases as are 
 allowed of by law, and the officer who takes the goods by virtue of a 
 replevin, issuing for what cause soever, is not liable to an action oi 
 trespass ; unless the party in whose possession the goods were claim 
 property therein ; and in all cases of misbehaviour by the sheriff* or 
 other officeio in relation to replevins, they are subject to the controul 
 
 (a) a Sell. I'rnct. 2.14. 
 U) 2 Iiiil. 14-;, i9,j. 
 
 (b) I Ld. Raym. 
 U' An. II. 21 z. 
 
 ■A9- J Lil. R'v 3.W- 13IU.R. J. 
 {() a .'jell. Pi act. 241.
 
 Sect. I.] Of the Action of Replevin. 471 
 
 of the king's superior courts, and punishable by attachment for such 
 misbehaviour (a). 
 
 Where a tenant has, on coming into possession under an assign- 
 ment, had notice that the lease was held under any particular person 
 to whom the former tenant has paid rent, the title of this person can- 
 not be contested in an action of replevin [b). 
 
 Of the Pledges. — The sheriff, when, upon complaint made to him, 
 he makes replevin must take two kinds of pledges : ist, by the com- 
 mon law, that the party replevying will pursue his action against the 
 distrainer, for which purpose he puts in plcgii de prosequendo, or 
 pledges to prosecute at common law; and 2dly, by stat. 13 £. i. c. i. 
 that if the right be determined against him he will return the distress 
 again ; for which purpose he is bound to find plcgii de retcrno habeiido, 
 or pledges to make return, if it be so adjudged {c). 
 
 The pledges taken must not only be sufficient in estate, viz. capable 
 to answer in value, but likewise sufficient in law and under no in- 
 capacity ; and therefore infants, ^c. are not to be taken as pledges, 
 neither are any persons politic or bodies corporate. But the suiTiciency 
 of these pledges is discretionary, and if the sheriff returns insufficient 
 pledges, he shall answer for the price of the goods himself ; for in- 
 sufficient pledges are as no pledges. But the sheriff is not bound to 
 warrant the sufficiency of the pledges ; if he makes proper inquiries, 
 and the persons are apparently responsible, it is sufficieait (d). 
 
 The pledges when taken must be recorded in the County Court {e). 
 
 Upon plaint being made, therefore, and pledges found, which is 
 done at the sheriff's office, the sheriff or one of his deputies, by 
 stat. I E. 2 P. ^ M. is to make replevin of the goods or cattle dis- 
 trained, which is done by granting a warrant {/). 
 
 There is no particular tirqe when the replevin must be made, as 
 the distress cannot be disposed of, but must be only kept as a 
 pledge. 
 
 In replevin, a bond instead of pledges, taken by a sheriff" to prose- 
 cute the action with effect for wrongfully taking the plaintiff's geld- 
 ing, and to make return thereof if return should be adjudged, is 
 good : but he cannot take gage instead of pledges {g). 
 
 If the sheriff neglect to take a replevin-bond, the party injured may 
 have his action against him •, but it is not a contempt of Court for 
 which they will grant an attachment [h). 
 
 If upon such bond the plaintiff in replevin do not enter his plaint 
 in the County Court, the bond will be forfeited : so, if afterwards he 
 do not proceed in the prosecution ; or if he be nonsuit, or has a ver- 
 dict against him (/). 
 
 (a) Bac. Abr. tit. Rtplevin, &c. (C.) (J>) I Esp. R. yi. (<;) Bac. Abr. id ante. 
 
 {d) 5 Taunt. 225. (f) Co. Lit. 145. a lust. 340. (/) Z Sell. Pract. 246. 
 
 {£) 1 LA. Raym. 278. {h) % T. R. 617. (/) Com. Dig. tit. Replevin, (D.)
 
 472 Of the Action of llejylcvin, [Cha}). XVIII. 
 
 But if the plaintiff in i-eplevin enters his plaint, and afterwards is 
 restrained by injunction out of Chancery till his death, whereby his 
 plaint abates, the bond will not be forfeited (a). 
 
 The bond may be assigned, if the plaintiff in replevin do not ap- 
 pear at the County Court next after giving the bond : and he may sue 
 on the bond as assignee of the sheriff in the superior Courts, though 
 the replevin be not removed out of the County Court (/;). 
 
 But though if the distress be not for rent, the bond is not assign- 
 able, yet the party may apply to the sheriff for the bond and to be at 
 liberty to sue in his name, 
 
 Hotv to make Replevin xvhere Distress is for Rent. 
 
 If the tenant means to replevy, he must, within five days after 
 notice of the distress, take with him two housekeepers, living in the 
 city or county where the distress was made, and go to the sheriff's 
 office of such city or county, where he must enter into a bond with 
 the two housekeepers, as sureties in double the value of the goods 
 distrained, according to stat. 1 1 G. 2. upon which the sheriff will 
 direct a precept to one of his bailiffs, and the possession of the 
 goods will be restored to the tenant to abide the event of the suit in 
 replevin [c). 
 
 It has before been observed, that upon making replevin, two kinds 
 of securities were at common law taken by the sheriff, viz. the one 
 for prosecuting the suit ; the other, for returning the goods if a return 
 should be awarded. The first were merely nominal {John Doe and 
 Richard Roe,) but the second should be real responsible persons. 
 Sheriffs however gradually became remiss in their duty, and often 
 neglected taking these pledges pro reform habendo ; or, if any were 
 taken, for the most part they were found to be indigent and irrespon- 
 sible people [d). 
 
 The Stat. II G. 2. c. 19. s. 23. therefore, for the better securli!g 
 the payment of rents and preventing frauds by tenants, enacts, 
 *' That to prevent vexatious replevins of distresses taken for re?ity all 
 sheriffs and other officers having authority to grant replevins, may and 
 shall, in every replevin of a distress for rent, take in their own names 
 from the plaintiff and two responsible persons as sureties, a bond in 
 double the value of the goods distrained (such value to be ascertained 
 by the oath of one or more credible witness or witnesses not interest- 
 ed in the goods or distress, which oath the person granting such 
 replevin is hereby authorized and required to administer,) and con- 
 ditioned for prosecuting the suit with effect and without delay, and 
 for duly returning the goods and chattels diitraincd, in case a return 
 sliall be awarticd before any deliverance be made of the distress." 
 
 (a) Com. Dig. tit. Replevin. (D.) Carili.jif;. (/■) 5 T. R. lyj. 
 
 (0 a Sdl. I'lact. %(iO. (</) Ibiil.
 
 Sect. 11.] Of the Writs in Replevin. 473 
 
 For the further protection of landlords and by way of putting the 
 remedy into their own hands, it is also ordered by the same statute, 
 « That such sheriff or other officer as aforesaid, taking any such 
 bond, shall, at the request and costs of the avowant, or person 
 making conusance, assign such bond to the avowant, or person afore- 
 said, by indorsing the same, and attesting it under his hand and seal, 
 in the presence of two or more credible witnesses ; which may be 
 done without any stamp, provided the assignment so indorsed be duly 
 stamped before any action be brought thereon : and if the bond so 
 taken and assigned be forfeited, the avowant or the person making 
 conusance, may bring an action, and recover thereupon in his own 
 name •, and the Court where such action shall be brought may, by a 
 rule of the same Court, give such relief to the parties, upon such 
 bond, as may be agreeable to justice and reason, and such rule shall 
 have the nature and effect of a defea:^ance to such bond." 
 
 Section II. Of the Writs in Replevin. 
 
 The original writ in replevin issues out of Chancery, and neither 
 that nor the alias replevin are returnable, but are only in the nature 
 of zjtisttcies to empower the sheriff to hold the plea in his County 
 Court, where a day is given to the parties. But the pluries replevin 
 is always with this clause, " or shew cause before us," and is a re- 
 turnable process {a). 
 
 The pluries replevin supersedes the proceedings of the sheriff, and 
 the proceedings are upon that, and not upon the plaint as they are 
 when that is removed by recordari: and though there is no summons 
 in the writ, yet it gives a good day to the defendant to appear, and if 
 he do not appear, a potie issues, and then a capias (b). 
 
 Process of outlawry lies upon the capias in withernam^ which issues 
 upon the sheriff's return o^ averia elongata upon iYicphiries ; and upon 
 the sheriff's special return of nulla bona on the nvither?iamy there shall 
 go a capias against the person, and so to outlawry [c). 
 
 Capias and process of outlawry in replevin were given by stat. 25 
 E. 3. c. 17. 
 
 Of the Withernam. — If on the /»///nVj- replevin the sheriff return that 
 the cattle are eloigned to places unknown, ^c. so that he cannot de- 
 liver them to the plaintiff, then shall issue a withernam [from the 
 Saxon words wederi other, and naamj distress, signifying another 
 distress instead of the former which was eloigned, that is, removed,] 
 directed to the sheriff, commanding him to take the cattle or goods of 
 the defendant, and detain them till the cattle or goods distrained are 
 restored to the plaintiff ; and if upon the first withernam a nihil be 
 
 (j) Bac. Abr. tit. Replevin, S;c. (K.) (i) Ibid. (i.) Ibid.
 
 474 Of the Writs in Replevin. [Chap. XVIII, 
 
 returned, then an alias and pltiries replevin shall issue, and so to s 
 capias and exigent (^). 
 
 The writ of withernam ought to rehearse the cause which the 
 sheriff returns, for which he cannot replevy the cattle or goods 5 so 
 that it does not lie upon a bare suggestion that the beasts are eloigned, 
 ^c. — If upon the withernam, the cattle are restored to the party 
 who eloigned them, yet he shall pay a fine for his contempt {a). 
 
 The withernam is but mesne process, and cannot be an execution, 
 because it is granted before judgment [a). 
 
 Cattle taken in withernam may be worked, or if cows, may be 
 milked ; for the party has them in lieu of his own : and as the party 
 is to have the use of the cattle, he is not to have any allowance or 
 payment for the expenses he has been at in maintaining them {a). 
 
 In scire facias against an executor on a judgment de relorno hahendo 
 against his testator for a cow, but which was not executed, it was 
 held that the plaintiff should have execution, for the defendant could 
 not be prejudiced; inasmuch as, if the sheriff return averia elongaia^ 
 he shall not have a withernam but of the goods of the testator •, or \l 
 there are no goods of the testator, the sheriff can take notliing, but 
 shall return 7iulln hona^ and then the plaintiff hath his ordinary way to 
 charge the defendant, if he hath made a devastavit ; and it was ad- 
 judged for the plaintiff (a). 
 
 If upon an elongnta returned, the defendant's cattle are taken in wi- 
 thernam, yet upon the defendant's appearance, and pleading 7ion ccpit, 
 or claiming property, the defendant shall have his cattle again, and if 
 they are eloigned, a withernam against the plaintiff : for if the pro- 
 perty or taking be in question, there is no reason that the plaintiff 
 should have the defendant's cattle. — Both the plaintiff and defendant, 
 indeed, may, it seem.s, have a withernam [a). 
 
 Of writ of scco7id deliverance. — At common law, if the plaintiff 
 had been nonsuited either before or after verdict, the defendant who 
 distrained should have had return, but not irreplevisable j [this signi- 
 fies, that ought not to be replevied, or set at large upon sureties ;] so 
 that the plaintiff after nonsuit might have had as many replevins as 
 he chose. To remedy which evil the stat. Westm. 2. (13 Ed. i. st. i. 
 c. 2.) restrains the plaintiff from any more replevins after nonsuit, but 
 gives a writ of second deliverance : and if in such writ the plaintiff 
 be nonsuited, or if the pica be discontinued, or the writ abate, or if 
 he prevail not in his suit, return irreplevisable shall be granted {it). 
 
 If defendant in replevin has return awarded upon nonsuit of the 
 plaintiff, upon which he sues a writ dc ret. hab.y and the sheriff re- 
 turns nvrria chngala per qiurcntemy and upon this a withernam is 
 awarded, and upon the withernam, the defendant has toia calalla to 
 
 (t/) Bhi. Abi. Ill aiiti. (L. 2.;
 
 Sect. II.] OJ Ihc IVrils in llepkvin. 475 
 
 him delivered of the goods of the plaintifF, and thereupon the plaintiff 
 sues a second deliverance : he shall sue it for the first distress taken, 
 and not for the withernam, as appears by the nature and form of the 
 writ of second deliverance {a). 
 
 Retorno hahendo awarded to the sherifF, after a writ of second deli- 
 verance prayed by the plaintifF, is a supersedeas to the ret. hab. and 
 closes the sheriff's hand from making any return thereon. — If the 
 sheriff will not execute the writ of second deliverance, the party has 
 his remedy against him (a). 
 
 This Stat, of IVestm, 2. gives the writ of second deliverance out of 
 the same Court whence the first replevin was granted, and a man 
 cannot have it elsewhere : for if he could, then he might vary from 
 the place limited, as to this, by the statute. But though the writ 
 cannot vary from the first in year, day, place, or number of beasts, 
 yet if the first writ was of a heifer, the second may be of a cow, as 
 by presumption it may in that distance of time grow to such. 
 
 Where the defendant had avowed, and plaintifF being nonsuited 
 brought this writ, it was held tliat though the writ be a supersedeas to 
 the rei. hab. it is not so to the writ of inquiry of damages ; for these 
 damages are not for the thing avowed for, but are given by the stat. 
 21 H. 8. c. 19. as a compensation for the expense and trouble the 
 avowant has been at. 
 
 In error on a second deliverance, the writ must be certified : and 
 if it vary in substance from the declaration in replevin it shall be 
 abated (a). 
 
 Upon a nonsuit either before or after evidence, this writ will lie, 
 because there is no determination of the matter, and there a writ of 
 second deliverance lies to bring the matter in question («). 
 
 But no second deliverance lies after a judgment upon a demurrer, 
 or after verdict, or confession of the avowry ; but in all tliese cases, 
 judgment must be entered with a return irreplevisable ; for in the 
 case of a demurrer and verdict, the matter is determined by the law, 
 and in that of a confession, it is determined by the confession of the 
 party (a). 
 
 Note. In an avowry for rent, the second deliverance is taken away 
 by Stat. 17 Car. 2, c. 'j. 
 
 Yet if the plaintifF in replevin be nonsuited for want of delivering 
 a declaration, which happened through any cause that would have en- 
 titled him to a writ of second deliverance, as sickness of the person 
 employed, vS'c. the Court will order the defendant to accept of a de- 
 claration on payment of costs ; else the plaintifF v/ould be remediless, 
 the writ of second deliverance being taken away by tlie 17th C. 2. c. 7. 
 
 Of Writ de proprietate probanda. — The writ de proprietate probandd 
 
 {a) Bac. Abr. ut, ante. (£. J.)
 
 476 Of the Writs in Replevin, [Chap. XVIII. 
 
 issues out of Chancery, or K. B. or C. P. When it issues out of 
 Chancery, it is an original, and goes upon the sheriff's return to the 
 alias replevin; when out of either of the other Courts, it is judicial 
 and granted on the return of the plur'iesy for the pluries is returnable 
 only there, the original and alias giving no day, but being merely vi- 
 contiel (a). 
 
 If the defendant in replevin claim property, the sheriff cannot 
 proceed, for property must be tried by writ. In this case, therefore, 
 the plaintiff may have the writ de proprietate probanda to the sheriff, 
 who is to give notice to the parties of the time and place of executing 
 it, for it is an inquest of olEce. If it be found for the plaintiff, the 
 sheriff is to make deliverance ; if for the defendant, then he is to 
 proceed no further, but being an inquest of office, the plaintiff may 
 notwithstanding have a replevin to the sheriff, and if he return the 
 claim of property, yet it shall proceed in C. P. where the property 
 shall be put in issue and finally tried, — None but he who is party to 
 the replevin shall have the writ de prop. proh. 
 
 The sheriff is to return the claim of property on the pluries^ before 
 which time the writ de prop. proh. does not issue, for it recites the 
 pluries {a). 
 
 If the defendant in replevin claim property, the plaintiff may have 
 the writ de prop. prob. without continuance of the replevin, though it 
 be two or three years after ; for by the claim of property the first is 
 determined {a). 
 
 If the plaintiff has property and omits to claim it before the sheriff, 
 he may notwithstanding plead property in himself, or in a stranger, 
 either in abatement or bar. 
 
 If it be notified to him that comes in aid of the sheriff or his 
 officer, that claim of property is made, he at his peril ought to 4^si^ 
 for if he take them away, he will be a trespasser ah initio {a). ^ ,^^,,. 
 
 A man cannot claim property in the County Court by his bailiff 
 or servant, for if the claim be false a fine will be imposed for the 
 contempt : but in K. B. one may make conusance and claim property 
 by a bailiff, for there the bailiff is not liable to a fine {a). ^^ 
 
 Of Writ de retorno habendo. — A replevin being granted, if the per- 
 son who takes the distress " avows ;" or if his bailiff make *« conu- 
 sance," and prove the distress to be lawfully taken ; or if upon re- 
 moval of the plaint into the Courts above, the plaintiff whose cattle 
 were replevied, make default or do not declare, or prosecute his ac- 
 tion, and thereby becomes nonsuited \ or if a verdict be given against 
 him ; in any of these cases, the party distraining, that is, the de- 
 fendant in replevin, shall have a writ dc retorno habendo ; which being 
 a judicial writ, and not a returnable process, if on the pluries the 
 
 (<j) 13ac. Aid. Hi anlc. (t. 4-)
 
 Sect. II.] Of the Writs in Replevin. 477 
 
 sheriff return that the cattle, goods or chattels are eloigned, he shall 
 have a scire facias against the pledges according to the stat, of Westm. 2. 
 and if they have nothing, then he shall have a •withernam against the 
 plaintiff's own cattle [a), 
 
 A bailiff w^ho makes conusance may have judgment of a return, 
 and consequently, a writ de ret. hah, grounded on such judgment {b\ 
 
 Of Returns irreplevisable. — Return irreplevisable is a judicial writ 
 directed to the sheriff for the final restitution of the cattle unjustly 
 taken by another, and so found by verdict or after nonsuit in a second 
 deliverance (r). '''-'*" 
 
 If the plea be to the writ, or any other plea be tried by a verdict, 
 or judged upon demurrer, return irreplevisable shall be awarded, and 
 no new replevin shall be granted, nor any second deliverance by stat. 
 Westm. 2. s. 2. but only upon a nonsuit. — But if upon issue joined 
 the plaintiff does not appear on the trial, being called for that pur- 
 pose, return irreplevisable shall not be awarded, but the party may 
 have a writ of second deliverance. 
 
 If a man has return irreplevisable, and a beast dies In the pound, 
 he may distrain anew : so, if the beast dies before judgment (d). 
 
 If a return irreplevisable be awarded, the owner of the cattle may 
 offer the arrearages ; and if the defendant refuse to deliver the distress, 
 it being only in the nature of a pledge, the plaintiff may have detinue. 
 Such processes how to be executed. — By the stat. Westm. 2. if the party 
 who distrains, conveys the distress into any house, park, castle, or 
 other place of strength, and refuses to suffer them to be replevied, 
 the sheriff may take the posse comitatiis^ and on request, and refusal, 
 may break open such house, castle, ^c. and make deliverance. If 
 the sheriff return that the beasts are inclosed in a park among savages, 
 5s*r. or quod mandavi balHvo libertatis, ^c. qui nullum dedit mihi respon- 
 sicm^ or that the bailiff will not make deliverance of the cattle, these 
 are not good returns ; for he ought to enter the franchise and make 
 deliverance if). 
 
 If a man sue a replevin in the County Court without writ, and die' 
 bailiff return to the sheriff, that he cannot have view of the cattle to 
 deliver them, the sheriff ought by inquest of the office to inquire of 
 the truth thereof, and If It be found by a jury that the cattle were 
 eloigned, ^c. the sheriff may award a withernam to take the defend- 
 ant's cattle : if he will not so do, the plaintiff shall have a writ out 
 of Chancery directed to the sheriff rehearsing the whole matter, com- 
 manding him to award a withernam, ^c. and he may have an aliasy 
 and after a pluriesy and an attachment against the sheriff. If he will 
 not execute the king's command {f). 
 
 {a) Bac. Abr. ut ante. (E. 5-) (^) Ibid. {c) Ibid. (E. 6.) (j) Ibid. 
 
 (0 Ibid. (E. 7.) (/) Ibid.
 
 478 Of Ihe Declaration. [Cliap. XVITf. 
 
 If the sheriff return quod nveria elongata sunt ad locn iiicogtiltaj it is 
 a good return, and the party must pursue his writ of withernam ; 
 but if the sherift' return averia elongata ad locn incognita infra comitatum 
 meuniy he shall be amerced, for the lav/ intends that he may have no- 
 tice in his county [a). 
 
 Quod averia tnoriua sunt is a good return: so, quod nuUus vcnit ex 
 parte quarentikis ad demonstranda averia ,- but it seems the sherifF is not 
 obliged to require this (a). 
 
 If the sheriff" come to take replevin of beasts impounded in an- 
 other man's soil ; if the place be inclosed and have a gate open to the 
 inclosure, he cannot break the inclosure and enter thereby, whci'e lie 
 may enter by the open gate : but if the owner hinder him, so that 
 he cannot go by the open gate for fear of death, he may break the 
 inclosure and enter there {a). 
 
 If the sheriff be shewn a stranger's goods and he take them, tres- 
 pass lies against him, else the stranger could have no remedy. But 
 it seems to have been held, that the action lies more properly against 
 the person who shews the goods («). 
 
 The sheriff is to return, that the cattle are eloigned, or that no 
 person came to shew, i^c. or a delivery: but he cannot return that 
 the defendant ?ion ccpit the cattle, because it is supposed in the writ, 
 and is the ground of it, which the sheriff" cannot falsify {n). 
 
 Of the Declaration. 
 
 Although it has been holden by some, that the count or declara- 
 tion in replevin should be certain and particular in setting forth the 
 number, kinds, and qualities of the things distrained, for that other- 
 wise the slieriff cannot tell Iiow to make deliverance of the same ; 
 yet 
 
 It seems now to be settled, that a declaration in replevin being 
 certain to a general intent is sufficient j especially if it be after 
 verdict {b). 
 
 In his count the plaintiff' must allege the taking to be at a certain 
 place, or (according to the precedents) in quodam loco vocafy that the 
 defendant may have notice as to what he is to answer, and make his 
 title : therefore the alleging the taking apud Dalcy or such a vill, is 
 too general and uncertain [b). 
 
 h\ replevin both the vill and place arc traversable. 
 
 Where a defendant takes cattle wrongfully at first, the wrong is 
 continued to any place where he had them in custody, so that a place 
 dificrent from that where they were originally taken is well laid 
 
 (a) l',ac. Al,r. „i .i„1r. (I-. 7.) (A) Bac. Abr. ill. R.l>l<-vlii, .>yc. (H.)
 
 Sect. II.] Of the Pleas. 479 
 
 in the declaration, if defendant had them in custody at such other 
 place [a). 
 
 A man may count of several takings, part at one day and place, 
 and part at another day and place, for he need not shew how many 
 he took in one vill, and how many in another {a). 
 
 Where the defendant counted of four oxen taken at divers times 
 and places, and that delivery was made of two, but the other two 
 were withheld to his damage los. this was held sufTicient without any 
 severance as to the damages («). 
 
 The count, as in other actions, must agree with the writ, so that 
 if the writ be de averiisy and the count de averiis iff catallis, this is 
 ill. In replevin the writ was in the detinety and the count in the 
 detinuity and this was thought to be a material variance : but the par- 
 ties agreed to amend {a). 
 
 Of the Pleas. 
 
 Pleas in replevin are generally of four kinds, viz. either ist, pleas 
 in bar ; 2dly, in justification ; 3dly, by way of conusance ; 4thly, 
 by way of avowry. — ^^fhe defendant may either justify or avow at his 
 election ; but if he justifies, he cannot have a return [b). 
 
 The general issue in replevin is non cepit ; and one of several de- 
 fendants may plead non cepit [b). 
 
 If the defendant claim property in himseJf, or a stranger above, 
 as he may do, though it ought to have been before the sheriff, this 
 does not amount to the general issue, but may be pleaded in bar or 
 abatement, and if the plaintiff demur, the defendant shall have a re- 
 turn without avowing ; for it appears that the beasts are not the 
 plaintiff's. But on the issue non cepit^ property cannot be given in 
 evidence, for that were contrary to it (b). 
 
 If the defendant make conusance as bailiff to A. the plaintiff can- 
 not traverse that he is his bailiff; for it is a matter of which by no 
 intendment he can have knowledge, — But, if in bar of the avowry 
 the plaintiff pleads that another had made conusance as bailiff to 
 A. for the same cause and was barred, he need not shew that it was 
 with the privity of A. for it shall be intended ; and if in truth it was 
 without the defendant may traverse his being ever his bailiff (3). 
 
 In a replevin against the master and bailiff or servant, if the bailiff 
 makes conusance as bailiff, and the master pleads that he did not take, 
 the servant shall not have any return upon his conusance, for by the 
 master's plea his conusance is changed into a justification {b). 
 
 In replevin of beasts taken at Z). the defendant pleads in abatement 
 diat they v/cre taken at another place absque hoc that they were taken 
 
 ia) Bac. Abr. tit. Replevin, <«cc. (H.) (/;) Bac. Abr, ut ante. (I.)
 
 480 Of removing tlie Suit, S^c. [Chap. XVIII. 
 
 at D. and pro retorno hahendo avows for rent on a lease for years, £fff , 
 the plaintiff replies and traverses the lease, l^c. this is ill ; for though 
 the defendant, when he pleads in abatement, must also avow to have 
 a return, yet the plaintiff cannot answer to it, but must take issue on 
 the other matter (o). 
 
 Prisel in outer lieut is only matter in abatement, and the plain- 
 tiff may have a new writ without being put to his second deli- 
 verance {b). 
 
 Of removing the Suit from the County Court, ^wherein of 
 the Re. fa. lo. Jlso of subsequent Proceedings, and com- 
 pelling the Party to proceed. 
 
 The suit remains before the sheriff, ^c. though the goods and 
 chattels, ^c. distrained be above the value of 40J-. ; for the replevin 
 alias, and pluries, are all vicontiel writs, and the suit may be deter- 
 mined in such inferior Court : but the suit may be removed by either 
 of the parties into the Courts of K. B. or C. P. to be there deter- 
 mined, and that without any cause shewn {c). 
 
 The method of removing it depends on the manner in which the 
 suit was commenced below. — If replevin be in the County Court by 
 writ, it must be removed into K. B. or C. P. by pone : if by plaint, 
 by writ of recordari facias loquelam, (called for brevity a refalo.) If 
 replevin is in a Court of Record, that may hold plea in replevin, it 
 must be removed by certiorari, and not in any other manner ; for a 
 refalo does not go to such Court, because there the suit is already re- 
 corded. If the plaint is in the Court of another lord, it may be re- 
 moved into K. B. or C. P. by recordari to the Sheriff commanding him 
 qitod accedas ad curiatti et in plena curia HP recordari facias, Iffc. but it 
 is said that a replevin shall not be removed out of any which is not 
 the King's Court, without cause, either by the plaintiff or defendant; 
 for the prejudice that may thereby come to the lord [d). 
 
 AH the above writs, to remove the suit from an inferior Court, are 
 in their nature original writs and issue out of Chancery. The suit, 
 however, is most commonly commenced in the County Court by 
 plaint, and very rarely at this day by writ {e). 
 
 In order to remove it, the party makes out a precipe to the cursitor 
 of the proper county, who then makes out the writ, which must be 
 carried to the under-sheriff of the county, who returns it of course. 
 If the sheriff returns the recordari, tarcU, the party shall have an 
 alias, Iffc. 
 
 By the recordari, nothing is removed but the plaint, even though 
 
 {a) Bac. Al)r. /,/ ante. (I.) (i) Ibid. {c) a Sell. Pi.ict. 248. 
 
 (</) Il)i(l. (0 Ibi.l. 249.
 
 Sect. II.] Of remolding the Suit, S;c, 481 
 
 the issue should be joined below ; and the plaint may be removed, 
 though the plaintiff has discontinued there. 
 
 The plaint, when removed into K. B. is filed with the filazer of the 
 county : so also when removed into C, P. 
 
 Where proceedings are removed from the County Court, the recor- 
 dart facias loquelam (called for brevity's sake ^he refalo) being returned 
 and appearance of defendant entered, the plaintiff must declare de 
 tiovOi "or need any notice be taken of the proceedings below. To 
 ihe declaration, the defendant may plead in abatement or bar ; or he 
 may avow in his own right, or make conusance in right of another 
 as his baihff, or may justify; and the parties go on to issue or de- 
 murrer to be tried or argued in the usual way [a). 
 
 But as both parties are actors in replevin, either of them may take 
 down the record to trial ; for which reason there can be no judgment 
 as in a case of a non-suit in replevin ; and if the defendant gives 
 notice of trial and does not proceed, the Court will give costs against 
 liini {b). But though an avowant is an actor, he cannot have a rule 
 to discontinue ; for it is the plaintiff's suit notwithstanding {c). 
 
 Of compelling the Party to proceed. — If the plaintiff removes the 
 plaint, he should, upon the return of the refalo, file it with plaint, 
 tsfc. with the filazer of the county, and search for the defendant's 
 appearance : if the defendant has not appeared on or before the ap- 
 pearance-day of the return of the refalo, the plaintiff" should serve 
 him with a rule to appear, which may be had at the filazer's, and, 
 upon liis non-appearance thereto, sue out a pone. The pone is also 
 got at the filazer's ; a summons is made out thereon at the sheriff's 
 office, and served upon the defendant by the officer. If no appear- 
 ance is entered on, or before, the appearance-day of the return, get 
 the sheriff to return nihil on the pone, and sue out a distringas, which 
 may likewise be at the filazer's, and proceed to levy thereon : the 
 issues may be 4/. next 8/. and so on ; if the defendant does not ap- 
 pear, proceed with distringases ad infinitum. If he does afterwards 
 appear, he must pay the costs of the distringases. Then (as before 
 observed) declare de novo, not noticing the proceedings in the Court 
 below. — Rules may be afterwards given to compel the defendant to 
 avow, and so on as in common actions [d). 
 
 But if the defendant removes it, he must file the refalo and return 
 thereto with the filazer ; and having entered an appearance, he must 
 give a rule for the plaintiff to declare ; and for want of declaration, 
 when the rule is out, he may sign a non-pros, for not declaring, and 
 immediately sue out a writ de retorno habendo i^d). 
 
 If the refalo is not filed by the defendant, on or before the appear- 
 ance-day of the return of it, notice must be given to the plaintiff of 
 
 {S) % Sell. Pract. 253. {h) Ibid. (<:) x Str. 112. 
 
 (</) % Sell. Pract. 250. 
 
 I i
 
 4S2 Of Avowries. [Chap. :;^ VIII. 
 
 the filing thereof by a demand in writing being made of the declara- 
 tion, before non-pros, can be signed ; but if filed on the appearance- 
 day of the return, such demand is not necessary (a). 
 
 After a writ of re. fa. lo.y and many writs of pone issued thereon 
 to compel the defendant's appearance, if the plaintiff file a declara- 
 tion in a subsequent term, intitled as of an intermediate term be- 
 tween the term in which the re. fa. lo. is returnable, and the term in 
 which the declaration is filed, with notice to plead in the following 
 term, both declaration and notice to plead are irregular. — Quare, 
 whether the stat. 51 G. 3. c. 124. j-. 2. authorizes the plaintiff in re- 
 plevin to enter a common appearance for the defendant [b). 
 
 If the plaintiff has removed the cause, and does not proceed there- 
 in, or if the defendant has removed it, and after having served the 
 plaintiff with a rule to declare, and demanded a declaration, the 
 plaintiff does not declare or proceed therein, the defendant may sign 
 a nonpros., and judgment pro ret. hah. and then sue out a writ pro 
 ret. hah. which he may obtain of the filazer (f). 
 
 If the defendant has taken out the refalo, and does not get it re- 
 turned, and filed within two terms, the plaintiff should apply to the 
 filazer for a certificate, that the same is not returned and filed; 
 which certificate is a sufficient warrant for the cursitor to make out a 
 writ of procedendo, which remands the cause to the County Court to 
 be there determined if). 
 
 If the refalo is not returned, so as to enable the party to get it 
 filed, the sheriff must be ruled to return it if). 
 
 The Court will not stay proceedings in an action of replevin, unless 
 upon payment of the rent in arrear, together with all costs, though 
 the arrears were tendered before with costs up to that time {d). 
 
 Where the avowry is for damage feasant, the proceedings cannot 
 be staid ; because the Court in such case have no rule to guide them 
 in ascertaining the damages f). 
 
 Of Avowries. 
 
 An avowry, as has been before observed, is the setting forth, as 
 in a declaration, the nature and merits of the defendant's case, and 
 the shewing that the distress taken by him was lawful, which must 
 be done with such sufficient authority as will entitle him to retorno 
 hahendo. 
 
 A distinction is to be observed between an avowry and a justifica- 
 tion. An avowry always goes for a return, and therefore shews a 
 riglit subsiijting at the time of the avowry, as made for rent, for ex- 
 ample j but a plea of justification does not always go for a return; 
 
 (,y) a Sell. Pract. 250. {h) 5 Taunt. 771. {c) 2 Sell. Piact. 251. 
 
 id) 1 lios..'!c Pull. .182. I I'idU's Piacl. 4f<fV. (0 'bid.
 
 Sect. IL] Of Avownes. 483 
 
 as where the original taking was lawful, but it is not so at the time 
 of the plea pleaded (a). 
 
 In one respect, however, there is no difference between an avowry 
 and a justification-, fox, generally speaking, whatever is set forth in 
 either, must be maintained. 
 
 The defendant in replevin, to entitle himself to a return of the 
 goods distrained, must make his avowry, unless it be in a case in 
 which he claims property; so that though the plaintiff's writ abates, 
 yet the defendant is not entitled to a retorno habendoy unless he had 
 made his avowry [b). 
 
 The avowant is in the nature of a plaintiff, as appears, ist. from 
 his being called an " actor," which is a term in the civil law, signify- 
 ing plaintiff; 2dly. from his being entitled to have judgment de re- 
 torno habendoy and damages as plaintiff: and, 3dly. from this, that 
 the plaintiff may plead in abatement of the avowry, and, consequently, 
 such avowry must be in the nature of an action {c). 
 
 An avowry, therefore, is in the nature of a declaration, and it 
 sufficeth if it be good to a common intent. But it should shew the 
 certainty of the place, day, and cattle, to entitle the avowant to a 
 writ of inquiry of damages (<^). 
 
 The avowant being, however, in the nature of a plaintiff, need not 
 aver his avowry with a hoc paratus est verificarey more than any other 
 plaintiff need aver his count, and being an actor, he shall not have a 
 protection cast for him more than any other plaintiff (^), 
 
 The claim of right to distrain must be made out by the avowant 
 against the plaintiff, who claims property in the distress ; and the de- 
 fendant in replevin cannot have a return of more cattle than he avows 
 for (/). 
 
 With respect to avowry for rent arrear, if the clause in the lease is, 
 *< That if the rent be behind, being demanded at another place beside 
 the land, or of the person of the lessee, that the lessor may distrain;" 
 there, if the lessor distrain without any demand, it is unlawful ; for 
 the form of the demand is different from what the law requires, and 
 must be complied with (^). — But if the clause is, " That if the rent 
 be behind, being lawfully demanded, that then he may distrain ;" it 
 is no more than the law speaks, and therefore the lessor may dis- 
 train without a previous demand ; for the distress is of itself a 
 demand {h). 
 
 But where a penalty is annexed to the non-payment of the rent 
 and a distress is given for it, there a demand must be laid. As where 
 the avowry was for rent and a nomine poena, and no demand alleged, 
 the avowry was held to be clearly ill for the nomine pacmey for want 
 
 {a) I Esp. N. p. 353. {b) Bac. Abr. tit. Replevin, &c. 
 
 (0 Ibid, (i.) (</) Ibid. (.■) Bac. Abr. tit. (A.) (/) Ibid. 
 
 [g) Hob. 208. (h) 7 Co. a8. b. 
 
 ii 2
 
 484 Of Avowries, [Chap. XVIIi. 
 
 of a demand, but good for the rent : and the defendant had a return 
 for that (a). 
 
 However, where the issue was on a collateral matter, viz. non con- 
 cessity though no demand of the nomine poena was laid, it was held to 
 be cured by a verdict [b). 
 
 Attending on the land to pay the rent will not destroy the right to 
 distrain, unless a tender of payment is actually made [c). 
 
 An avowry for part of a rent or penalty is bad, unless it shew 
 how the remainder was discharged : for otherwise there may be an- 
 other distress and avowry for the residue (d). 
 
 But the avowant may abate his own avowry for part of the rent 
 distrained for; but not after judgment. 
 
 So, where an avowry is made for several rents, and it appears that 
 part is not due, yet the whole avowry shall not abate {/). 
 
 In replevin A. avowed for a rent-charge, due amio 1660, and after- 
 wards he distrained and avowed for another part of the same rent- 
 charge, which became due before the said year, and which was 
 against a different tenant •, in this case it was held by three Judges 
 against a fourth, that the avowant was not estopped by his first 
 avowry in such manner as a lessor is by giving an acquittance for the 
 last gale of rent, but that he may, at his pleasure, avow for part of 
 his rent at one time, and for part at another, in the same manner as 
 the lord may command his bailiff to distrain for so much rent, and 
 afterwards for the sum due before {/)• 
 
 In avowry for rent, and so many hens for quit-rent, the avowant 
 had a verdict for the whole ; but it afterwards appearing upon the 
 face of avowry, that the hens were not due at the time of the dis- 
 tress, the avowant had leave to release his damages as to them, and 
 take judgment for the rent with his costs [g). 
 
 If the grantee of a rent-charge avows upon several under-tenants 
 for the same rent, the Court will upon a tender pleaded by the under- 
 tenants, make an order that the payment of the rent into Court in one 
 action shall serve for all {h). 
 
 A man cannot proceed for damages upon a plea of tender after 
 taking the money out of Court. But on a plea of tender to an avowry 
 for rent, the plaintiff need not bring the money into Court (?). 
 
 Where a man is sole seised or hath title to an entire rent, he 
 should distrain for it all at once. 
 
 But if the defendant avow for more than is due, though the avowry 
 Is for that reason bad, yet it may be cured. As where the defendant 
 avowed for rent due at Mkhaelmasy and the distress appeared to have 
 been made on the 2(5th of Scptemhct'y which was three days before 
 
 («) Hot.. 133. {!>) Hut. 42- (0 I IaI. Raym.609. (./) Cro. Car. 104. 
 
 (f) Bar. Al.r. tit. Rpplfvin, &c. (C.) f/')lbi(l. (.?) 'hid. 
 
 (/.) I l.il. Rayrn. 429. {i) llml. 639. Bull. N. P. 60.
 
 Sect. II.] Of Avowries. 485 
 
 Mlchaelmasy It was held. That though the avowry was bad (for the 
 judgment is to have a return irreplevisable till all the rent avowed for 
 is paid, and so would be for more than was due), yet that the de- 
 fendant might before judgment abate his avowry for so much as was 
 claimed to MichaelmaSy and take judgment for the rest (a). 
 
 But where one is not sole seised, or has not sole title to the entire 
 rent, he cannot avow alone, for such avowry would be bad. 
 
 Therefore parceners must join in an avowry for rent or making 
 conusance; for they make but one heir, and the rent is an entire in- 
 heritance {J}). 
 
 Joint-tenants also should join [c). 
 
 One tenant in common cannot avow the taking of the cattle of a 
 stranger upon the land damage feasant, without making himself 
 bailiff or servant to his companion : for if one were to distrain with- 
 out the other, as there could not be a double satisfaction for the same 
 injury, the other would have no remedy. As to any supposed hard- 
 ship in one denying his consent to the other avowing as bailiff to him : 
 if he dislikes his situation he may put an end to the tenancy by a writ 
 of partition (^). 
 
 In replevin against two, they made several avowries, each in his 
 own right, and both avowries were abated : for if both the issues 
 should be found for the avowants, the court could not give judgment 
 severally for the same thing {e). 
 
 Air annuitant may distrain for a rent, though the term be vested in 
 himself to secure the payment, for the grantor will be deemed quasi 
 tenant to the party at a rent to the amount of the annuity (/). — 
 "Where an action was brought for money had and received to the use 
 of the assignees, and it appeared that the money was paid by the te- 
 nant of the bankrupt to the defendant as grantee of an annuity 
 granted by the bankrupt after an act of bankruptcy, and charged on 
 the estate of which the payer of the money was tenant : L, Kenyan 
 observed, that the action ought to have been brought by the tenant, 
 and said he could not transfer a chose in action, which this was, to 
 the assignees. The tenant could not avail himself of the payment, 
 but the assignees might have recovered the rent notwithstanding. 
 This was suflicient to decide the case (^). 
 
 Where the lessee has entered under a lease, though such entry be 
 tortious, it does not discharge the contract for the payment of rent ; 
 for there is a great difference between replevin and ejectment (Jj). 
 
 If one distrain for rent, and before the avowry the estate on which 
 it was reserved determine, the avowry shall be as if the estate on 
 
 (a) Salk. 580. 5 Mod. 364. s. c. Com. R. 4a. s. c. {b) Salk. 390. 
 
 (c) Bac. Abr. tit. Replevin, &c. (K.) (</) a H. Bl. R. 386. {e) Bac. Abr. ut unU. 
 
 If) a Bl. R. 13*6. {g) Sit. at Westmr. M. T. 39 G. 3. M. S. {h) i Stra. 550. 
 
 8
 
 486 Of Avo'wries. [Chap. XVI II. 
 
 which it was reserved had continued, for the avowant is to have the 
 rent notwithstanding : but if the distress were for a personal service, 
 the defendant muse have a special justification, for he cannot have 
 the service in specie, when the estate is determined {a). 
 
 The defendant in replevin need not set out his title : for the stat, 
 1 1 G. 1. c. 19. s. 22. enacts, " That it shall and may be lawful for all 
 defendants in replevin to avow or make conusance generally, that the 
 plaintifF in replevin or other tenant of the lands and tenements 
 whereon such distress was made, enjoyed the same under a grant or 
 demise at such a certain rent, during the time wherein the rent dis- 
 trained for incurred, which rent was then and still remains due, 
 without further setting forth the grant, tenure, demise, or title of 
 such landlord or landlords, lessor or lessors ; and if the plaintifF or 
 plaintiffs in such action shall become nonsuit, discontinue his, her, 
 or their action, or have judgment given against hira, her, or them, 
 the defendant or defendants in such replevin shall recover double 
 costs of suit." 
 
 The defendant may avow in this general manner v/hether the plain- 
 tiff be tenant or not, for the words of the statute are in the disjunc- 
 tive, " plaintiff in replevin or other tenant." 
 
 Where defendant (who was assignee of the reversion under an 
 annuity deed) avowed generally for rent, according to stat. 12 G. 2. 
 c. 19., and the plaintiff applied to the Court for an inspection of the 
 deed, upon the ground that before the passing of the act defend- 
 ant must have set out the deed in his avowry, the Court refused the 
 appllcrtion, saylr.g he might get all the Information he could from 
 the memorial of the deed. But it seems the Court would have com- 
 pelled the defendant to shew the deed if the justice of the case re- 
 quired it {b). 
 
 In avowing for rent under the stat. 11 G. 2. c. 19., it is not ne- 
 cessary to aver that the rent continued in arrear at the time of making 
 the avowry [c). 
 
 Where the rent reserved at the time of entering upon the pre- 
 mises, was afterwards varied by agreement between the parties, yet 
 it was holden that the landlord might avow as on a demise at a rent 
 certain, for that such subsequent agreement operated by relation, to 
 make t a reservation of the rent from the beginning [d). 
 
 The: statute was made for the benefit of landlords, that after the 
 tenant had enjoyed the land he should not be allowed to pry into the 
 lessor's title : therefore, if the defendant avow under the statute, nil 
 hahiiit in tencmcutis is a bad and inadmissible plea, for It attempts 
 
 {a) Bac. Abr. ui ante. {J>) 6 'raiint. 283. 
 
 (<) 7 Taunt. 7%. (J) Bac. Abi. ui ante. 
 
 f
 
 Sect. 11.2 OJ^ Avowries. 487 
 
 to bring the lessor's title in question : were the premises in mortga^Te, 
 for example, if this plea were allowed, the defendant could not re- 
 cover h's rent, which the statute never had it in contemplation to pre- 
 vent, but rather to assist (a). 
 
 So, there may be judgment in replevin though the party misrecites 
 his title, provided he shews a good and subsisting one. As whtire 
 the plaintiff entitled himself by a lease of the 3d of Afarch, the de- 
 fendant traversed the lease modo ct fornix j the jury found a lease cf 
 another date; yet judgment was given for the plaintiff: for the sub- 
 stance of the issue is, whether he has a lease or not : yet if they had 
 found a lease from another, it would not have done. (/^). 
 
 An avowry for an increased rent on a demise for every acre of the 
 land which should be converted into tillage, is supported by the evi- 
 dence of a lease for a term of years, with a covenant to pay the in- 
 creased rent for every acre which should be so converted during «' a 
 part of the term ;" for example, for the last three years, by the stat. 
 II G. 2. <:. 19 {c). 
 
 If executors avow under stat. 32 H. 8. c. 37. for rent in fee, iifc. 
 due to their testator, they must shew the land in the seisin of tenant, 
 or in those who claim under him [d). 
 
 If a person distrains as executor or administrator, he must bring 
 himself within the statute; under the words of which, the distress 
 can be made only on the tenant in whose hands the lands were 
 chargeable, or some person claiming under him ; and therefore not 
 in the hands of one claiming by title paramount, as the lord by 
 escheat (^). 
 
 But where the avowry was as administratrix of rent to which the 
 defendant was entitled in her own right; she nevertheless had judg- 
 ment, that part respecting the claim as administratrix being rejected 
 as surplusage (f). 
 
 The above Act gives no remedy where the testator himself has dis- 
 pensed with the arrearages, or had no remedy when he died (g). 
 
 An avowry by husband and wife for rent due to the wife alone before 
 the coverture, was held to be good, the supposed inconsistency being 
 mere matter of form ; for the avowry being for rent arrear, to say 
 that it was arrear to him and his wife, is but surplusage ; and al- 
 though he doth not say adbuc a retro existk, it was held well enough in 
 substance (h). 
 
 Also, if there be lessee for years, and the reversion descend on a 
 feme covert, and afterwards the rent be in arrear, and the baron dis- 
 train, and the lessee bring a replevin, the baron ought to avow in the 
 name of himself and his wife, and not in the name of himself only, 
 
 (a) 2 Wils. 208. (B) Hob. 72. (<:) 2 H. Bl. R. 565. (d) Cro. Eliz. 547. 
 
 (e) Co. Lit. 162. li. (/) Hoi). 208. Biic. Abr. tit. Replevin, t«cc. (K.) 
 
 (£■) Co. Lit. 162. b. Vaugh. 4Q. (A) Cro. Jac. 283. 
 
 6 ^
 
 488 Of Avowries. [Chap. XVII L 
 
 for the avowry is to be made according to the reversion, which is in 
 the feme (a). 
 
 But an' avowry by a husband alone for rent due to him and his 
 wife is good, if it appear upon the record that he was entitled to 
 make the distress (b). 
 
 Though the defendant may be entitled to the rent, yet may the 
 distress be tortious. As if he come on the land to distrain, and the 
 tenant then tenders the arrears due •, in such case, if he distrain the 
 cattle, it is tortious, and the defendant may replevy (c). — But it is not 
 sufficient for the tenant to say that he was on the land on the day 
 and ready to pay the rent ; for if he did not make a tender at the time 
 of the distress made^ the taking was not tortious [f). The tender must 
 be before the impounding, for when impounded they are in custodid 
 legis {e). 
 
 Replevin was of cattle taken in A. The defendant avowed the 
 taking in A. under a demise of ceitain premises of which B. was 
 parcel, and because the cattle were damage-feasant in B. he took 
 them and drove them through A. in his way to the pound ; and upon 
 general demurrer the avowry was held to be well pleaded (/). 
 
 To an avowry for rent, the plaintiff in replevin may plead payment 
 of an annuity reserved out of the demised lands (with power of 
 distress) previously to the demise to him, for the arrears of which, 
 the grantee of the annuity had threatened to distrain [g). 
 
 To an avowry for rent in arrear, the plaintiff pleads in bar, " that 
 before and at the time of the supposed demise, and when the sup- 
 posed rent became due, she was married to one J, C." Held that 
 whether it were to be presumed that the coverture continued up to 
 the time when the distress was taken or not, the plea was no answer 
 to the avowry {h). 
 
 The plaintiff in replevin may plead in bar to the defendant's avowry 
 or cognizance that he did not hold as tenant, with a plea of infancy (?'). 
 
 iVo« demisit i nothing in arrear; nothing in arrear for part of the 
 rent and tender of the residue j are good pleas to an avowry for 
 rent (k). 
 
 So, a tender and refusal may be pleaded to such avowry, without 
 bringing the money into Court; because if the distress were not 
 rightfully taken, the defendant must answer the plaintiff his 
 damages (/). 
 
 After an avowry for rent arrear the plaintifJ may pay into Court 
 the rent for which the defendant avows, because the demand is 
 certain : but not where the damages are unliquidated (;«). 
 
 (a) Uac. Al>r. ut ante. {l>) Cro. Jac. 442. (c) Esp. N. P. 357. 8 Co. 147. a. 
 
 {J) Hut. 13. (,) Cro. Kliz.813. (/) a Bos.it Pol. 480. (g) 6Taimt.5a4- 
 
 a Mars. izo. .S. C. (/^) a Mars. 386. 7 Taujil. 7*. S. C. (/) 1 Mars. 74. 
 
 [tj Bac. Abr. W anu. (/) Bull. N. P. 60. (-«) I II. Bl. R. 14-
 
 Sect. II.] Of Avowries. 489 
 
 That the avowant afterwards used or sold the cattle or goodo dis- 
 trained, may also be pleaded («). 
 
 So, to an avowry for rent, the tenant may plead payment of a 
 ground-rent to the original landlord, which he paid to protect him- 
 self from a distress ; for it is a payment of so much to the immediate 
 landlord {b). 
 
 But the plaintiff cannot plead a set-off; because this action is 
 founded in a tort, and the stat. 2 G. 2. does not extend to such 
 actions ; besides a set-ofF supposes a different demand arising in a 
 different right (c). Neither can a mutual demand be given in evi- 
 dence, where the defendant justifies under a distress. — Yet it is said, 
 that he may plead a mutual debt of more than the rent by way of 
 special plea to the avowry (^). At all events, payment may be 
 pleaded. Therefore where to an avowry for rent, the tenant pleaded 
 payment of a ground-rent to the original landlord, it was holden 
 good (e). 
 
 In an avowry for non-payment of rent, a" plea in bar is de injur, 
 sua propria absq. hocy quod pr<td. R. cepiiy iffc. Non cepit is a good 
 traverse, but he should pursue his title, and de injur, sua propria is 
 enough (/). 
 
 After issue joined upon a plea in bar to an avowry, the Court will 
 not suffer the plea to be withdrawn and the avowry confessed, with- 
 out consent, for the avowant will lose his costs (^). 
 
 As to what shall be a departure, replevin was for taking the plain- 
 tiff's goods and chattels, to wit, a lime-kiln, avowry for rent, plea 
 in bar, that the lim.ekiln was afhxed to the freehold : the Court held 
 the plea in bar bad, because it was a departure from the declaration, 
 which had created the lime-kiln as a chattel (/:»). 
 
 In an avowry for a distress for rent, the avowant was to shew a 
 seisin, and such seisin by the stat. 32 H. 8. c. 2. must be alleged 
 within fifty years before the making of the avowry or conusance : and 
 though by stat. 21 H. 8. c, 19. the lord need not avow upon any 
 person in certain, yet he must allege seisin by the hands of some 
 tenant in certain, within fifty years. — Where the commencement of 
 the rent appears, seisin is not material. 
 
 The stat. 32 if. 8. c. 1. which limits an avowry or conusance for 
 rent, suit, or service, to a possession of fifty years next before making 
 the avowry, l^c. does not extend to a new rent created by Act of 
 Parliament. 
 
 Where a tenant by mistake or misrepresentation, pays rent to a 
 person not entitled to demand it, he is not precluded, by such pay- 
 
 (a) Com. Dig. ut ante. (K. 19.) (i) 4 T. R. JI2, 14. («) Bac. Abr. ut ante. 
 
 Bull. N. P. 181. (af) Bar. 450. (0 4 T. R. Jii. (/) Com. Dig. ut ante. 
 
 (3 K. 16.) {£) Ibid. (3 K. ao.) {h) 4 T. R. joj.
 
 490 Of Avowries. [Chap. X VII I. 
 
 nient, from giving evidence on a plea of non temiit, in replevin, against 
 the supposed landlord, to shew that the latter is not entitled to the 
 rent {a). 
 
 Proceedings in replevin will be staid after conusance, and pica in 
 bar, upon payment of costs of the action and distress, and replevying 
 and delivering up the replevin-bond to be cancelled, there being no 
 special damage [b). 
 
 Of Avo".vryi isfc. for Cattle damage feasant . — Respecting avowry or 
 conusance for damage-feasant, if the defendant avovv^s, or makes 
 conusance for damage-feasant, he must shew that the place where, 
 ^c. is his freehold, or the freehold of B. under whom he makes conu- 
 sance : and if he says that he himself or B. was seised, he must say 
 of what estate in fee, tail, or for life. 
 
 So, the bailiff who distrains for damage-feasant in right of a 
 devisee, must set forth what estate the devisor had ; it is not sufficient 
 to say in general, that he was seised, — The stat. 1 1 G.i. applies 
 only to avowries for rent arrear (r). 
 
 In replevin the title was by a lease made by a parson, and the 
 avowry was that A. was seised of the rectory of H. and made the 
 lease without shewing that he was parson : and by the Court, that 
 would have been a good exception, had it not been said in the avowry, 
 that he was seised injure ecclesia, which supplies all(c). 
 
 The general rule indeed in pleading is, that v/here a title is made 
 under a particular estate, the commencement of that estate must be 
 shewn, but that an estate in fee may be alleged generally [d). 
 
 In an avowry the issue was, whether the place where, i^c. was the 
 freehold of the avowant or not, and it was found by the verdict, that 
 it was the freehold of the avowant's wife. Et per Cur.— It is found 
 against the avowant, for when he saith his freehold, it is to be in- 
 tended his sole freehold, and in his own right (J). 
 
 Though the cattle of a stranger cannot be distrained unless they 
 were levant and couchant, yet it must come on the other side to shew 
 that they were not so (d). 
 
 In replevin for bonoy catal/a, et averioy a conusance of the whole 
 and a justification for part is bad ; for if a distress be entire, and it is 
 wrong in part, it is bad for the whole (af). 
 
 If a man takes a distress for a thing for which he had good cause 
 of distress, but had good cause of distress for another thing, if a re- 
 plevin is brought and he comes into Court, he may avow for which 
 he pleases (d). 
 
 To an avowry that the freehold was in the defendant or the party 
 
 («) I Mars. 541. 6 Taunt, aoa. S. C. (b) ^ M. k S. _'yis, 
 
 (<) Bac. Ahi. tit. Replevin. (F.) (J) Ibid. Eiy. 272. 844.
 
 Sect. III.] OJthe Verdict and Judgment^ ^c. 491 
 
 under whom he makes conusance, the plalntliF may say in bar, that it 
 is his freehold ; or the freehold of A. and by licence he puts his cattle 
 there ; or, a special title by devise, fine, demise, ^c. (a). 
 
 So, the plaintiff may plead in bar to an avowry, de son torty with a 
 traverse that locus in quo^ Ifjc. is parcel of the tenements alleged to be 
 held {b). 
 
 Replevin for taking his cattle in the road, avowry for damage- 
 feasant in the four acres, so took them there and drove them along 
 the road to impound them •, plea, in bar, that the road is not parcel 
 of the four acres ; upon demurrer, the avowry was held well enough 
 and the plea ill •, for by connecting the beginning of the avowry and 
 conusance with the latter end thereof, it appeared to be one entire 
 transaction (c). 
 
 So, the plaintiff may plead in bar «' tender of amends" (d). 
 
 If the defendant pleads that he was seised of three acres in locus in 
 quoy iffc. it is sufficient, without saying how many acres the locus in 
 quOy ^c. had. 
 
 Where there were two issues, and one only found for the avowant, 
 he had judgment. — Where the parties agree in the facts, the circum- 
 stance of the jury finding otherwise is not material {e). 
 
 By Stat. 21 H.2>. c. 19. all plaintiffs and defendants shall have like 
 pleas and like aid priers in all such avowries, conusances, and justifi- 
 catinns (pleas of disclaimer only excepted,) as they might have had 
 before the Act. 
 
 Section III. Of the Verdict and Judgment in Replevi^i. 
 
 On the execution of the writ of replevin by the sheriff, the beasts 
 distrained arc actually returned to the plaintiff, so that he hath the 
 possession and use of the cattle pending the suit ; consequently if the 
 plaintiff in replevin hath judgment, it can only be for damages. 
 
 At common law (even before the statute of Gloucester) the plaintiff 
 in replevin could recover damages, and by that statute his costs. But 
 the avowant or defendant was not entitled to either, till the 7th H. 8. 
 c. 4. which gives damages and costs to every avowant, and to every 
 person making conusance, or justifying as bailiff in replevin, for any 
 rent, custom, or service, if his avowry, conusance, or justification 
 be found for him, or the plaintiff be otherwise barred. Also, by stat. 
 21 H. 8. c. 19. it is enacted, « That every avowant, and every other 
 person or persons that make any avowry, justification, or conusance, 
 as bailiff or servant to any person or persons in any replegiare or 
 second deliverance, for rents, customs, services, or for damages- 
 
 (a) Com. Dig. tit. Pleader. (3 K. 42.) {b) Ibid. (3 K. 16.) {c) 3 Wils. 295. 
 
 3 Bos. & Pul. 480. {d) Com. Dig. ut ante. (3 K. 32.) {e) Bac. Abr. ul anta. Ibid.
 
 4^2 Of the Verdict and Judgment, 8^c. [Chap. XVIIL 
 
 feasant, or for rent or rents, upon any distress taken in any lands or 
 tenements, if the same avowry, or conusance, or justification, be found 
 for them, or the plaintiffs in the same be nonsuit, or otherwise barred, 
 that then they shall recover their damages and costs against the said 
 plaintiffs, as the same plaintiffs should have done, or had if they had 
 recovered in the replegiare or second deliverance found against the de- 
 fendants («). 
 
 Neither this statute, nor that of 43 EIit.. [if the defendant avow as.- 
 overseer for a distress for a poor's rate], tie the inquisition up to the 
 same jury as are returned or impannelied, as the stat. 17 C, 2. c. 7. 
 (of which hereafter) does. If, therefore, there is a verdict for the 
 plaintiff, the jury usually assesses the damages : or the jury after ver- 
 dict may be dismissed, and damages be assessed by the Justices, wiih 
 the defendant's consent. Or if the jury do not assess the damages, 
 and the goods, IfSc. should be detained, the plaintiff may make a sug- 
 gestion thereof upon the roll, whereupon a writ shall go to inquire 
 of the value of the cattle, ^c, and damages ; upon which the plaintiff 
 shall have judgment for both {h). 
 
 If there be judgment for the plaintiff upon a relicta 'uerificatiomt 
 cognovit actionem^ nil dicit, ksfc. or for want of a replication to his plea 
 in bar to the avowry, or upon a demurrer, a writ of inquiry of 
 damages shall be awarded : or at the request of the plaintiff, by the 
 assent of the defendant, the Justices may assess the damages without 
 such writ (c). 
 
 But if there be judgment for the plaintiff, quod adhuc defmct by de- 
 fault after appearance, there shall be a special writ of inquiry for the 
 value of the goods or cattle and damages. — But where the taking was 
 lawful, the damage shall be only for the detainer; as where goods are 
 taken damage-feasant, and detained after amends tendered. 
 
 If the plaintiff lets judgment go by default, or becomes nonsuit, the 
 defendant is entitled to his judgment pro retorno^ and to a writ of in- 
 quiry, to assess his damages and cost ; or if the defendant get a ver- 
 dict, the jury may assess the damages, or if they omit so to do a writ 
 of inquiry may go (^). 
 
 The judgment after verdict for the defendant need not express the 
 return to be irreplevisable, because now it necessarily must be so, 
 since the statute of Westm. 2. Therefore a judgment in replevin, 
 " that the defendants have a return of the cattle, and recover their 
 damage and costs assessed by the jury," ts'c. is good, either as a judg- 
 ment at common law, though the return be not adjudged irreplevis- 
 able, or as a judgment under stat, 21 H. 8. c. 19. which entitles the 
 defendants to damages and costs; but not under stat. 17 C. 2, {e). 
 
 If the defendant upOn the judgment de ret, hah, sue out a writ pro 
 
 (fl) i^cll. I'Lut. 271. (A) Ibid. (.) Ibid. 172. (r/) I bill.
 
 Sect. III.] i?i Replevhu 493 
 
 ret. hah. and the shcrlfF cannot find the cattle, he may have a capias in 
 withernam upon the return of the elongata. But if the defendant has 
 judgment for a return irreplevisable, if the owner of the cattle or 
 goods tenders all that is due on the judgment and it is accepted, he 
 shall have a writ of delivery for the goods \ so if he tenders the whole 
 upon the judgment which is ascertained upon the avowry, and is re- 
 fused, he shall have detinue {a). 
 
 In avowry for damage feasant, defendant had a verdict, and ad- 
 judged that he shall have a ret. hah. for the cattle, and a ca, sa. for the 
 damages; but if the party tender the costs and damages, the sheriff, 
 after such tender, ought not to execute the ret. hah. But if, for want 
 of such tender, he do execute the ret. hah. and afterwards the costs and 
 damages are paid, a writ si constare potent lies upon suggesting that the 
 costs, ^c. are paid, and this is to re-deliver the distress, and is called 
 " a writ of restitution (3)." 
 
 It is now settled, that pleadings in replevin are within the stat. 4 
 Ami. c. 16. therefore, where some issues in the replevin are found for 
 the plaintiff which entitle him to judgment, and some for the defen- 
 dant, the latter must be allowed the costs of the issues found for hini 
 out of the general costs of the verdict ; unless the Judge shall certify 
 that the plaintiff had probable cause for pleading the matters on which 
 those issues are joined {c). 
 
 An avowant shall pay costs on the special avowries found against 
 him; and shall not have costs on the affirmance of a judgment in his 
 favour on a writ of error {d). 
 
 If the plaintiff plead several pleas in bar, upon which issues are 
 joined, and some issues are found for the plaintiff, and some for the 
 defendant, the latter is entitled in C. P. to such costs of the trial, as 
 relate to the issues on which he has succeeded, as well as to the cost 
 of the pleadings (e). But if a defendant after trial, and verdict for the 
 plaintiff, obtain judgment mn ohstante veredicto^ in consequence of the 
 plaintiff's pleas in bar being bad, he is not entitled in that Court to 
 any costs upon the pleadings, subsequent to the pleas in bar, because 
 he should have demurred to them (y). 
 
 The certificate of probable cause is not required to be made in 
 Court, at the trial of the cause ; and where the judge refuses to grant 
 it, the Court have not a discretionary power, whether they will allow 
 the plaintiff any costs at all ; but are bound by the statute to allow 
 him some costs, though the quantum is left to their discretion [g). 
 
 (a) % Sell. Pract. 273. {b) Ibid. {c) % Sell. Pract. 273. {d) 'bid. 
 
 y) 5 Taunt. 594. I Mars, 234. S. C. (/) i Tidd's Pract. 616. {g) Ibid. 6i 7.
 
 [ 494 ] 
 
 Of the Non Pros., Nonsuit, Verdict, and Judgment under 
 Stat, 17 Car. 2. c. 7. ichere the Distress xvasfor Rent. 
 
 If the cause has been removed into the superior Court by the plain- 
 tiff, and after the defendant has appeared he does not declare or pro- 
 ceed therein ; or if the cause has been removed by the defendant, and 
 a rule having been served on the plaintiff, he does not declare or pro- 
 ceed therein; the defendant may in these cases sign a non pros., enter 
 up judgment ^ro retornohahendo, and, if the original distress were made 
 for rent, he may proceed to execute a writ of inquiry of damages, 
 which is the better way than taking out a writ pro retorno hahendo, be- 
 cause that writ may be superseded by the plaintiff suing out a writ of 
 second deliverance, as has been seen before {a). 
 
 For the stat. 17 C 1. c. 7. which is an Act for the more speedy and 
 effectual proceeding upon distresses and avowries for rent, after recit- 
 ing that <* Forasmuch as the ordinary remedy for arrearages of rents 
 is by distresses upon the lands chargeable therewith-, and yet never- 
 theless, by reason of the intricate and dilatory proceedings upon re- 
 plevins, that remedy is become ineffectual:" by Sect. 2. enacts, " That 
 ■whensoever any plaintiff in replevin shall be nonsuit before issue 
 joined in any suit of replevin by plaint or writ lawfully returned, re- 
 moved, or depending in any of the King's Courts at Westminstery that 
 the defendant making a suggestion in nature of an avowry or cogni- 
 zance for such rent, to ascertain the Court of the cause of distress, the 
 Court upon his prayer shall award a writ to the sheriff of the county 
 where the distress was taken, to inquire, by the oaths of twelve good 
 and lawful men of his bailiwick, touching the sum in arrear at the 
 time of such distress taken, and the value of the goods or cattle dis- 
 trained : and thereupon notice of fifteen days shall be given to the 
 plaintiff or his attorney in Cour^ of the sitting of such inquiry ; and 
 thereupon the sheriff shall inquire of the truth of the matters contain- 
 ed in such writ by the oaths of twelve good and lawful men of his 
 county, and upon the return of such inquisition, the defendant shall 
 have judgment to recover against the plaintiff the an-earages of such 
 rent, in case the goods or cattle distrained shall amount unto that va- 
 lue} and in case they shall not amount to that value, then so much as 
 the value of the said goods and cattle so distrained shall amount unto, 
 together with his full costs of suit, and shall have execution there- 
 upon hy Jieri facias y or elegit, or otherwise, as the law shall require: 
 and in case such plaintiff shall be nonsuit after cognizance or avowry 
 made, and issue joined, or if the verdict shall be given against such 
 plaintiff, then the jurors that are impannelled or returned to inquire 
 
 (.i) a Srll. Pr.K-t. %(^J.
 
 Sect. III.] Of the Non Pros., Nonsuit, ^t. 495 
 
 of such issue, shall, at the prayer of the defendant, inquire concern- 
 ing the sum of the arrears, and the value of the goods and cattle dis- 
 trained ; and thereupon the avowant, or he that makes cognizance, 
 shall have judgment for such arrearages, or so much thereof as the 
 goods or cattle distrained amount unto, together with his full costs, 
 and shall have execution of the same by Jieri facias, or elegit, or other- 
 wise, as the law shall require." 
 
 Sect. 3. gives the like remedy to the avowant or party making cog- 
 nizance for any rent, upon a judgment given for him upon demurrer. 
 
 Sect. 4. enables the party or his representatives to distrain again 
 for the residue of the arrears, in case the value of the cattle, £fff. 
 taken by the first distress shall not be the full value of the arrears dis- 
 trained for. 
 
 By the above statute, in case of a nonsuit or non pros, before issue 
 joined, defendant may enter a suggestion upon the record, in the na- 
 ture of an avowry or conusance, and thereupon sue out a writ of in- 
 quiry; but in case of a nonsuit at the trial, or of a verdict for defen- 
 dant, the jury at the trial must inquire of the rent in arrear, and the 
 value of the goods distrained (a). 
 
 If they omit to make such inquiry, no other jury can afterwards 
 make it ; no writ of inquiry therefore can go, the defendant cannot 
 enter his judgment according to the statute and proceed to execution 
 hyjifa. or ca. sa. but must resort to his common law judgment, and 
 sue out his writ de rctorno habendo : and this if the jury omit to inquire 
 either of the rent or the value of the goods, for they must assess both j 
 as the statute must be strictly complied with (/&). — But this is only in 
 cases of rent within the statute; and not in those of nonsuit in other 
 cases; indeed Lord i/arJ-zu/Vy^^ has laid it down, that in every case, 
 unless where the Court is tied up by this statute, a writ of inquiry 
 may be granted in order to do complete justice [c). 
 
 If the plaintiff become nonsuit, the defendant is not bound to take 
 his remedy under the statute, but has his option either to proceed by 
 writ of inquiry under it, or to bring his action against the plaintiff and 
 his sureties on the replevin bond [d). 
 
 Nor does the statute take away or alter the judgment at common 
 law; it only gives a further remedy to the avowant. So that after a non 
 pros, plaintiff may still enter his judgment pro retorno: but it is better 
 to make a suggestion, and proceed by writ of inquiry ; because if the 
 plaintiff sue out a writ of second deliverance, it will operate, as has 
 been observed, as a supersedeas of the ret. hah. but not so to the writ of 
 inquiry : for by this statute, the legislature intended that the proceed- 
 ing by writ of inquiry, fi fa. and elegit, should be final for the avow- 
 ant to recover his damages, and that the plaintiff should keep his cattle 
 
 (a) a Sell. Piact. 269. [b) Ibid. (t) Ca. temp. Hardvv. 138. {d) 3 Sell. Pract. 269.
 
 496 Of the Non Pros,, Nonsuit, S^^c. [Chap. XVIIf. 
 
 notwithstanding the course of awarding a ret. hah. which is the right 
 judgment, and is still entered up as before the statute [a). 
 
 If plaintiff in replevin is nonsuited, the defendant is not bound to 
 have his damages assessed by the jury under 17 Car. 2. c. 7. or to take 
 the earliest moment to prosecute his writ de rctonio habendo : and he 
 may again distrain the same goods for rent subsequently accrued pre- 
 viously to executing his retorno%abendo without waving his action against 
 the sureties in the bond {h). 
 
 Where judgment is given on demurrer for the avowant in replevin, 
 fifteen days' notice of the execution of the writ of inquiry should be 
 given to the plaintiff, as in the case of nonsuit, on stat. 17 Car, 2. 
 c. 7. (c). 
 
 Where the judgment is for the defendant after verdict, if the jury 
 have not inquired at the trial as the statute directs, it must be en- 
 tered up as a common law judgment pro ret. hah. But if the jury 
 have assessed damages, but not the amount of the rent, Isfc. it may 
 be entered as a judgment under stat. ix H.Z. c. 19.: and the Court 
 will permit the defendant to amend his judgment if entered as under 
 the statute, and not warranted thereby, to make it a common law 
 judgment {d). 
 
 Where the defendant made conusance for rent in arrear, and the 
 jury found a verdict for him, and damages to the amount of the rent 
 claimed in his conusance, without finding either the amount of the 
 rent in arrear or the value of the cattle distrained, and judgment was 
 entered for the damages assessed, the Court permitted the defendant 
 to amend his judgment, and to enter^ a judgment /to ret. hah. after a 
 writ of .error brought {e). 
 
 In replevin the plaintiff avowed for a year's rent j verdict for the 
 defendant -, but no value found for the jury. It was moved for a 
 writ of enquiry under the stat. 17 C 2. c. 7. to ascertain the rent in 
 arrear and the value of the cattle. Goulds J. doubted whether it could 
 be granted to supply a defective verdict in case of rent ; though after 
 a judgment by default it would certainly lie; and added, that Bur- 
 ronus note of Andrews and Jamesy M, 24 G. 2. B. R. appeared to be 
 a judgment by default. However, no cause being shewn, the rule was 
 made absolute {/). 
 
 If there has been no avowry, the Court will set aside a writ of in- 
 quiry obtained, and the inquisition thereon ; for the avowry is in the 
 nature of a declaration, and is the only ground of an inquiry, for the 
 defendant in replevin (g). 
 
 The stat. 11 (j. 2. c. 19. s. 22. gives the defendant or defendants 
 in replevin making avowry or conusance upon distresses for rent, re- 
 ricf, hcriot, or other service, in case the plaintiff in the action shall 
 
 (a) 2 Sell. Pratt. 269. {/)) 1 Tiiuiit. ai8. (c) i M.-irs. 444. 6 T.nunt. 57. 
 
 (J). I Taunt. 271. 4 T- R- 509. W 3 T. R. 349- (/) 2 Bl- R- 763- 
 
 (jf) Bac. Alir. tit. " Ucpleviii," &i-. (D.)
 
 Sect. IV.] Of the Action against the Sheriff. 497 
 
 become nonsuit, discontinue, or have judgment against him, double 
 costs, — The avowry must be for taking the goods, ^c as a distress ; 
 else it will be out of the. statute (a). 
 
 This statute does not extend to a rent-charge, or seisure for a heriot 
 custom (b). 
 
 Where a statute gives double costs, th(py are calculated thus: i. the 
 common costs; and then half the common costs. If treble costs, i. 
 the common costs ; 2. half of these, and then half of the latter (r). 
 
 Section IV. Of the Remedies •where the Pledges prove 
 
 insufficient, 
 
 1. By Action against the Sheriff. 
 
 2. By Scire Facias against the Pledges. 
 
 3. By Proceeding on the Replevin Bond. 
 
 1 . Of the Action against the Sheriff. 
 
 The sheriff, upon making replevin, is bound, as has been before 
 stated, to take pledges, and they must be sufficient pledges ; for if 
 they are not, an action on the case will lie against him ; the Court, 
 however, will not proceed in a summary way, by granting an attach- 
 ment against the sheriff for neglecting to take a replevin bond {d). 
 
 In case pledges are taken and they prove to be insufEcLnt, the 
 party has a double remedy, viz. against the sheriff and against the 
 bail ; against the sheriff by action, and against the ba!', if the distress 
 was not for rent, by scire facias ,• if for rent, either by scire facias^ or 
 upon the replevin bond, assigned according to the statute (<?). 
 
 If insufficient pledges de retorno habendo be taken by the officer of 
 the Court below in the replevin, the remedy against him is by action, 
 and the Court of Common Pleas will not order him to pay the costs 
 recovered by defendant in replevin {f). 
 
 The pledges taken by the sheriff when the distress is not for rent, 
 are according to th« statute of Westm. 2. and may be by bond, and 
 that too of the plaintiff himself only, for the sheriff being answerable 
 for the sufficiency of the pledges, may take the security as he pleases, 
 since it is at his own peril (^). — But he cannot take money or cattle 
 as a pawn or pledge (h). 
 
 The pledges taken when the distress is for rent are governed by 
 Stat. II G. 2. c. 19. and must be by bond with two sureties, and 
 
 (a) % Sell. Pract. 274. {b) i Tidd's Pract. 891. {c) Ibid. (d) 2 T. R. 617. 
 
 a Sell. Pract. i6z. (^ Ibid. Gilb. L. of Rep. 220. (/) i Bot. & Pul. N, R. 892, 
 
 Of) Ibid. 97. (*).Cro. Car. 446. 
 
 K k
 
 498 Of the Action against the Sheriff. [Chap. XVIII. 
 
 ought to be at least in double the value of the goods distrained. The 
 sheriff, the under-sheriff, and the replevin-clerk, are, as has been 
 before observed, all liable to the defendant in replevin for the suf- 
 ficiency of the pledges de reform hahendo (a); but they are not bound 
 to ivarrant their sufficiency ; if they are apparently responsible it is 
 enough (^). 
 
 The mode of proceeding on the stat. ii G. 2. c. 19. is now gene- 
 rally preferred to the old remedy by set. fa. where the distress was for 
 rent; and it is not affected by the 17 C 2. c. 7. for where, in pur- 
 suance of that statute, the avowant had judgment for want of a plea 
 in bar, it was held that he had two methods of proceeding in his elec- 
 tion ; namely, either to execute a writ of inquiry or to sue upon the 
 replevin bond ; the plaintiff not having prosecuted his suit with 
 effect (f). 
 
 The action ought to be brought in the name of the person making 
 conusance, where there is no avowant on record {d'). 
 
 In the action against the sheriff, some evidence must be given by 
 the plaintiff of the insufficiency of the pledges ; but very slight evi- 
 dence is sufficient to throw the proof on the sheriff; for the sure- 
 ties are known to him, and he is to take care that they arc suf- 
 ficient {e). 
 
 This action against the sheriff will lie without any scire facias pre- 
 viously sued out against the bail. But in a case before mentioned, 
 after judgment /ro ret. and an eloignment returned, the Court on mo- 
 tion granted a rule against the sheriff, under-sheriff, and replevin- 
 clerk, to pay the defendant 57/. 15 j. the amount of the verdict in 
 replevin (damages and costs) together with the costs of the applica- 
 tion (/). 
 
 Much doubt has been entertained, and the Courts still differ as to 
 the quantum of damages which the plaintiff ought to recover in this 
 action against the sheriff for taking insufficient pledges. 
 
 In the King's Bench it is held, that the plaintiff' cannot recover 
 beyond the value of the distress. The argument is, that the duty of 
 the sheriff as prescribed by the Act, is to take the bond for prose- 
 cuting the suit and for a return of the goods, if a return shall be 
 awarded : the bond therefore would be satisfied by returning the 
 goods taken. If so, the value of those goods seems to be the true 
 measure of damages to be given by this action. That by the stat, 
 Westm. 1. it is specifically mentioned, that if any take pledges other- 
 wise, he shall answer for the price of the beasts : and that the i x 
 G. 2. docs not enlarge the sheriff's responsibility in this respect [g). 
 
 But in the Common Pleas the direct contrary was holden, for that 
 
 (a) a El. R. lazo. (J>) 5 Taunt, aaj. (0 Gilb. L. of Rep. %%$. a Wils, 42- 
 
 (</; I Bos. ft. Pull. 378. {i) Bull. N. P. 60. (/) a Sell. Pract. 263. a Bl. R. laao. 
 {l) a Sell. Pract. 263.
 
 Sect. IV.] Of the Remedies, ^c, 499 
 
 Court held that the plaintiff might recover the amount of his rent 
 his costs in the replevin suit, the value of the goods, and whatever 
 other damages the jury might give him, even beyond the penalty of 
 the replevin-bond, i. e. more than double the value of the goods dis- 
 trained (a). However this doctrine was shortly after over-ruled : and 
 the Court held the sheriff liable to the extent of double the value of 
 the goods distrained, but no farther ; by analogy to the liability of the 
 sureties {b). 
 
 Where the plaintiff declared that in a certain messuage, or dwelling- 
 house, and premises, he distrained for the rent of the said premises 
 with the appurtenances, by virtue of a certain demise thereof; proof 
 of a lease of two messuages, reserving a rerit, and of a notice of 
 distress for the rent of the two messuages, was held not to be a va- 
 riance {c). 
 
 2. Of the Remedy by Scire Facias agaimt the Pledges, 
 
 Another remedy which the defendant in replevin has, if the plaintiff 
 does not make a return of the goods when a return has been awarded, 
 is, by scire facias against the pledges. Before a scire facias issues, a 
 writ pro ret. hah. must have been sued out, and an elongata or eloign- 
 ment be returned by the sheriff. After which, if the names of the 
 pledges be not known, an application may be made to the replevin- 
 clerk, and if he refuses or delays to tell them, the Court on motion 
 will make a rule upon him for that purpose {d). 
 
 If the plaint has never been removed, the defendant may sign a 
 mn pros, in the Court below, and have a precept in the nature of a 
 scire facias {e). 
 
 Note. The two preceding remedies are used where the distress is 
 not for rent, as well as where it is. 
 
 3. Of the Remedy on the Replevin Bond, 
 
 When goods are taken in distress for rent, and replevied, the dis- 
 trainer has no lien on the goods, but is left to his remedy on the re- 
 plevin bond {f). 
 
 The usual remedy, therefore, where the distress is for rent, and a 
 replevin bond is entered into, according to stat. 11 G. 2. c. 19. is by 
 taking an assignment of the replevin bond, and bringing an action 
 thereon against the pledges in the defendant's own name [g). 
 
 By the statute, the sheriff is ordered, at the request and costs of the 
 avowant, or person making conusance, to make an assignment. 
 
 A replevin bond may be assigned to the avowant only, or he may 
 bring his action upon it without joining the party making conusance (h). 
 
 {a) % Sell. Pract.a64. (i) Ibid. 547. Willes, 375. (<;) 3 M. & S. 169. (i) a Sell. 
 Pract. a66. (f) » Will*. 41. (/) i Br. R. 417. {g) % Sell. Pxact. a66. 
 
 (A) I Bos. & Pull. 378. 
 
 Kk 2
 
 50Q Of the Remedies, &;c. [Chap. XVIII. 
 
 A defendant in replevin is, indeed, entitled to an assignment of 
 the bond, if the plaintiff in replevin do not appeal- in the County 
 Court and prosecute according to the condition [a) ; which condition 
 is not satisfied by a prosecution in the County Court, but the plaint, 
 if removed by refalo into a superior Court, must be prosecuted there 
 with eiFect, and a return made, if adjudged there [b). In such case, 
 the defendant may sue on the bond as assignee of the sheriff in the 
 superior Court, though the replevin be not removed out of the 
 Countv Court •, averring in his declaration, that the plaintiff did not 
 appear at the next County Court and prosecute according to the con- 
 dition of the bond [c). 
 
 The bond may be assigned four days exclusive after the time 
 limited therein for plaintiff to prosecute his suit {d). 
 
 The action must be brought in the same Court in which the refalo 
 is returnable. The mode of assigning and proceeding is the same as 
 on a bail-bond (<?). 
 
 The two sureties in a replevin bond, are together liable only to 
 the amount of the penalty in the bond, and the costs of the suit in 
 the bond (/). 
 
 A declaration by P. and C. assignees of a replevin bond, stating 
 that they distrained the defendant's goods for rent due to P. is good 
 without naming C. bailiff (^•). 
 
 The avowant and the person making cognisance may together take 
 an assignment of the bond, and sue jointly upon it [g). 
 
 The declaration need not set out the goods distrained ; and if it 
 state that the sheriff took the bond in double the value, conditioned 
 for prosecuting, ^r., and for making return of the goods in the con- 
 dition mentioned^ and thereupon the sheriff replevied the same^ that shews 
 the bond was conditioned for a return of the goods distrained. And 
 the declaration is not double because it alleges that the de- 
 fendant did not prosecute his suit with effect, and hath not made a 
 return (^). 
 
 Debt lies by the assignee of a replevin bond against one of tlie 
 sureties in the detinet only. And where they declared that at the 
 City of C. and within the said jurisdiction of the Mayor of the 
 City, they distrained the goods of IF. H. for rent, and that W. H. 
 at the said City made his plaint to the Mayor, i^c. and prayed de- 
 liverance ; whereupon the Mayor took from him, and the defendant, 
 and another person a bond, which they all three executed, condi- 
 tioned for W. H. appearing before the Mayor or his deputy at the 
 next Court of record of the City, and there prosecuting his suit, isfc. 
 and thereupon the Mayor replevied, Uc Held, that it was not 
 
 {a) 5 T. R. 195. {b) I Bos. .'t Pull. 410. (.) 5 "l"- K. 195. 
 
 {d) ■» Sell. Via< t, 266. (0 Ibid. 267. (/) I 'I'auut. ai8, 
 
 fr) 3 M..V.S. 180.
 
 Sect. IV.] Of the Remedies, S^c. .501 
 
 ground for special demurrer, that the declaration did not shew a 
 custom for the Mayor to grant replevin, and take bond, and did not 
 shew that plaint was made in Court {a). 
 
 In an action by the assignee of a replevin bond against the surety, 
 the declaration alleges that a return of the goods was adjudged, but 
 that S. the plaintiff in replevin, did not make return. The defend- 
 ant pleads, ist. that the judgment was obtained by the plaintiff by 
 fraud, in collusion with 5., 2dly. that before judgment obtained, all 
 matters in difference between the plaintiff and S. were referred to 
 arbitration, pending which the proceedings were staid. Held that 
 the Jirst plea, not stating that the judgment was obtained for the 
 purpose of defrauding the sureties, was no answer to the action ; and 
 that the second plea was bad, since the reference was as much for the 
 benefit of the sureties as of the principal, and therefore no preju- 
 dice could arise to them from the delay [b). 
 
 Though a replevin bond be accepted by one of two sureties only, 
 it is nevertheless available by the sheriff against such surety (^) ; but 
 semble {c) not to a greater amount than a moiety of the rent and 
 costs {d). 
 
 In debt upon a replevin bond, assigning for breach the not making 
 a return of the goods distrained for rent, the plaintiff may, after 
 signing judgment against the defendant for not returning the de- 
 murrer book, tax the costs and issue execution for the costs, and the 
 amount of the goods distrained as indorsed on the replevin bond, 
 without executing a writ of inquiry {e). 
 
 Sureties on a replevin bond are not discharged by time being given 
 to the plaintiff in replevin {f). 
 
 The Court will not set aside proceedings on a replevin bond 
 because the action is commenced before breach, for it may be 
 pleaded (^), 
 
 (a) 4 M. & S. 120. {b) % Mars. 392. 7 Taunt. 97. S. C. (0 a Mars. 352. 
 
 7 Taunt. 28. S. C. (rf) 7 Taunt. 327. {e) 3 M. & S. 155. (/) 2 Mars. 81. 
 
 6 Taunt. 379. S. C. {g) 5 Taunt. 776.
 
 [ 502 ] 
 
 CHAPTER XIX. 
 
 Remedies for Tenants against Landlords 
 (continued.) 
 
 Of the Remedies for an unfounded, irregular, or e.rcessive 
 
 Distress. 
 
 Section 1. For Rent pretended to he Arrear, 
 Section II. For other supposed Right to distrain. 
 
 IT has been seen that where the goods or cattle of a person have 
 been taken as a distress, whether on the ground that they are 
 liable for rent-arrear or damage-feasant, the party so distrained upon 
 may contest the distrainer's right by an action of replevin ; beside 
 that action, however, the law affords other remedies where the dis- 
 tress is unfounded ; these are by action of trespass de bonis asportatiSf 
 or quare clausum fregity for damages ; or trover for the value of the 
 thing distrained. 
 
 Trespass quare clausum fregit was the remedy commonly resorted 
 to of old, not merely as a remedy for a distress wrongfully taken, but 
 as a means of trying the title to lands and tenements, the title fre- 
 quently coming into question in the course of that action ; that action 
 however has of late years been in some degree superseded by that of 
 replevin in the one case, and ejectment in the other. 
 
 Still, however, these actions of trespass, and that of trover, are 
 open to the party who means to contest the validity of a distress. 
 The proceedings have in effect much similarity ; but in respect to 
 proof of title (where the distress was for damage-feasant), the action 
 of replevin being more strict than that of trespass for taking and 
 carrying away the goods, the latter remedy is often preferred. 
 
 Section I. Remedies for unfounded Distress for Rent 
 pretended to be Arrear. 
 
 To entitle a man to bring trespass he must, at the time when the 
 act was done which constitutes the trespass, either have the actual 
 possession in him of the thing which ia the object of the trespass, or
 
 I 
 
 Sect. I.] Remedies for an unfounded^ ^c, 503 
 
 else he must have a constructive possession in respect of the right 
 being actually vested in him [a). 
 
 This action lies for an unlawful taking ; as if the distress be made 
 at night. So if beasts of the plough had been taken when other suffi- 
 cient distress could have been had. So, if doors have been broken open 
 for enclosures thrown down), to make it, for the outer door can in 
 no case be broken open, except under the direction of stat. ii G. 2. 
 c. 19. of which we have before treated. 
 
 But in distress for rent, if the outer door be open, the person dis- 
 training may justify breaking open an inner door or lock to find any 
 goods which are distrainable [b). 
 
 So, even where the trespass was for breaking and entering the plain- 
 tiff's house and taking his goods, and the case in evidence was that 
 the defendant having with him a constable, had entered the plaintifF's 
 house to make a distress for rent. After he had told his business and 
 began to take an inventory, the plaintifF's wife tore his paper, beat 
 him and the constable out, and then blocked up the door ; about an 
 hour after the defendant with several others returned and demanded 
 admittance, which being refused, he broke open the doors. It was 
 ruled by Wilniotf J. that the distress having been lawfully begun and 
 not deserted, but the defendant compelled to quit it by violence, this 
 was a re-continuance of the first taking and so was lawful, though 
 he could not when he first came have so broken open the doors (c). 
 
 Trespass f or Case. — The stat. 3 W. ^ M. sess. i. c. 5. /. 5. pro- 
 vides, " that in case any distress and sale as aforesaid, shall be made 
 by virtue or colour of that Act, for rent pretended to be in arrear and 
 due, where in truth no rent is in arrear or due to the person or per- 
 sons distraining ; or to him or them in whose name or names, or 
 right, such distress shall be taken as aforesaid, that then the owner 
 of such goods or chattels distrained and sold as aforesaid, his execu- 
 tors or administrators, shall and may, by action of trespass, or upon 
 the case, to be brought against the persons so distraining, any or 
 either of them, his or their executors or administrators, recover 
 double the value of the goods or chattels so distrained and sold, to- 
 gether with full costs of suit." 
 
 The plaintiff gave a note of hand for rent-arrear, and took a re- 
 ceipt for it when paid, the defendant afterwards distrained for rent, 
 the plaintiff brought trespass; and it was holden, that notwithstand- 
 ing this note, the defendant might distrain, for it is no alteration of 
 the debt till payment. — But if A. indorse a note to B. for a precedent 
 debt, and B. give a receipt for it as money when paid, yet if he neg- 
 lect to apply to the drawer in time, and by his laches the note is lost, 
 
 {a) Cio. Jac. 46. I r. R. 480- {h) Bull. N. P. L81.] (0 Esp. N. P. jSi.
 
 504 Remedies for an unfounded, [Chap. XIX, 
 
 it will extinguish the precedent debt, and in an action he would be 
 nonsuited [a). 
 
 If a landlord accept a bond for rent, this does not extinguish it, for 
 the rent is higher, and the acceptance of a security of equal degree is 
 no extinguishment of a debt, as a statute-staple for a bond: but a 
 judgment obtained upon a bond is an extinguishment of it [a). 
 
 To covenant for rent against three defendants, it was pleaded, 
 that of the rent 41/. was paid; that of the residue, two of the de- 
 fendants had paid their shares, and that the defendant, Mitchell gave 
 the plaintiff a promissory note for his share, payable at a banker's ; 
 that such note was dishonoured, whereupon the plaintiff sued Mitchel 
 and had judgment by default on such note, which judgment was still 
 unsatisfied. When the plea was pleaded, the defendant was under 
 terms to plead issuably. The plaintiff treated it as no plea under a 
 Judge's order and signed judgment for want of a plea. On cause 
 being shewn, the defendant's counsel contended that the plea was 
 good; for that the action on the covenant averred in the judgment 
 on the note, and ''^e defendant had a right to avail himself of the 
 point. L. Kenyon. " The judgment is a merger of the original 
 cause of action wliere it is obtained immediately on the original cause 
 itself; but it is no merger, where it is on a collateral point, unless the 
 fruits of it be obtained." The defendant's counsel then said, that at 
 any rate the plaintiff ought not to have signed judgment ; he ought to 
 have demurred. 3 Burr. 1788. L. Kenyan. " I suspect that this plea 
 is founded on knavery; it goes to defeat the justice of the case; but 
 I fear that the plaintiff was not justified in treating it as no plea. 
 He ought to have demurred." Rule absolute [b). 
 
 Where the tenant of premises under a lease, and at a rent payable 
 half yearly, agreed to pay all taxes, except the landlord's property 
 tax, which the landlord agreed to allow, and the tenant agreed to lay- 
 out 20/. in repairs, which the landlord also agreed to allow, but 
 afterwards distrained for half a year's, rent, and sold to the whole 
 amount, without allowing either for repair or property tax, which he 
 knew the tenant had paid to the collector ; held that the tenant might 
 recover, in respect of the property tax ; but not in respect of the re- 
 pairs, in an action for money had and received against the landlord (c). 
 
 I 
 
 Section II. For other supposed Right to distraiii. 
 
 If the distress was made for other supposed cause, than under 
 pretence of rent-arrear, when in truth it was unfounded, trespass 
 also lies for the illegality. 
 
 (j) liull. N. P. 182. (A) Drake D. Mitchei, ct ul. M. T. 4a G. 3. T.'s MSS. 
 
 (f) I M. & S. 609.
 
 Sect. II.] irregular, or excessive Distress. 503 
 
 After judgment vacated, and restitution awarded, the defendan 
 brought trespass against the plaintiff for taking the goods, and the 
 Court held that the action would lie ; for by vacating the judgment 
 It is as if it had never been, and is not like a judgment reversed by- 
 writ of error. — But, in such case, it would not lie against the sheriff, 
 who has the King's writ to warrant him ; but the party must produce 
 not only the writ, but the judglncnt [a). 
 
 Where the action is transitory (as trespass for taking goods) the 
 plaintiff is foreclosed to pretend a right to the place, nor can it be 
 contested upon the evidence who had the right : therefore possession 
 is justifiable enough for the defendant, and it is suflicient for him to 
 plead that he was possessed of Blackacrey and that he took the goods 
 damage-feasant without shewing title. — But it is otherwise in trespass 
 quare clausiim fregit, because there the plaintiff claims the close and 
 the right may be contested {b). 
 
 Trespass for taking and detaining his cattle at Teddington ; the de- 
 fendant justified taking them damage-feasant at Kingston, and that he 
 carried them to Teddington and impounded them there. It was ob- 
 jected on demurrer that the justification was local, and therefore the 
 defendant ought to have traversed the place in the declaration : sed 
 non allocatur, for when the defendant says he carried them to Ted- 
 dington, and impounded them there, they agree in the place ; for if 
 the defendant had not a right to take them, he was a trespasser at 
 Teddington (c). 
 
 The general issue, in trespass, is " not guilty." 
 In trespass quare clatisiim fregit, the defendant may, upon ** not 
 guilty," give in evidence that he had a lease for years, (but not that 
 he had a lease at will, for that is like a licence which may be coun- 
 termanded at pleasure), or that his servant put the cattle there with- 
 out his assent -, but he cannot give in evidence a right of common, 
 or to a way, or any other easement ; nor can the defendant give in 
 evidence that the plaintiff ought to repair his fences, for want where- 
 of the cattle escaped j nor that he entered to take his emblements or 
 cattle ; iior that he entered in aid of an officer for execution of pro- 
 cess, or in fresh pursuit of a felon, or to remove a nuisance, nor 
 that it was the freehold of A. and that he entered by his command or- 
 licence ; for these are all matters of justification only [c). 
 
 So, the defendant cannot give in evidence, that the goods were 
 . seised as a heriot, or that they were distrained damage-fea- 
 sant, ^. {c). 
 
 But he may give in evidence, or plead, that he was tenant in com- 
 mon with the plaintiff: but if he would take advantage of a stranger 
 being so, he must plead it in abatement, for that will not prove him 
 
 (d) Bull. N. P. 84. {b) Ibid. 89. (.) Ibid. 90.
 
 506 Remedies for aji unfounded, [Chap. XIX. 
 
 not guilty. So if there be two defendants, they may plead a tenancy 
 in common in one of them, with the plaintiff (a). 
 
 In case of an absolutely stinted common in point of number, one 
 commoner may distrain the supernumerary cattle of another : but not 
 if any admeasurement is necessary ; as where the stint has relation to 
 the quantity of common land {b). 
 
 With respect to the plea of liberum tenementuntf and to a new as- 
 signment, if the defendant say that the locus in quo is six acres in D. 
 which are his freehold, and the plaintiff say they are his freehold, 
 and in truth the plaintiff and defendant have both six acres there, 
 the defendant cannot give in evidence, that he did the trespass in 
 his own soil, unless he give a name certain to the six acres, for 
 otherwise (says Dyer^ 23. c, 147.) the plaintiff cannot make a new 
 assignment (c). 
 
 It is certain, that where the action is transitory (as for taking the 
 plaintiff's goods), the defendant, if he would plead the locus in quo to 
 be his freehold, and that he took the goods damage-feasant, must 
 ascertain the place at his peril ; because by his plea he has made that 
 local which was at large before : for the taking of the goods is the 
 gist of the action, and therefore the plaintiff may prove it at a different 
 place from that laid in the declaration (f). 
 
 Indeed it should seem that antiently, upon a writ of quare clausum 
 fregity the plaintiff might, and may still, declare either generally, for 
 breaking his close at A. or might name the close in his count, as for 
 breaking and entering his close called Blachacre in A. or might other- 
 wise certainly describe the same. If he declared generally, and the 
 defendant pleaded the general issue, the plaintiff might give evidence 
 of a trespass in any part of the township of A. So that, for the ad- 
 vantage of the defendant, and to enforce the plaintiff to ascertain the 
 place exactly, a method was devised of permitting the defendant 
 to plead what is called ** the common bar," that is, to name any 
 place, as Broomfield (true or false was immaterial) in A. as the place 
 where the supposed trespass happened, and then allege that such 
 place so named was the defendant's own freehold : and as the plain- 
 tiff could not prove a trespass in Broomfield, this drove him to a 
 new assignment of the locus in quo, by naming the place in certain, 
 as a close called Blachacre^ to which the defendant was now to plead 
 afresh {d). 
 
 In trespass, the defendant justified in a place called A. as his free- 
 hold ; the plaintiff, by way of new assignment, said that the place in 
 which ^c. is called B. It is no plea to say that A. aiid B. are the 
 same place, for by the new assignment the bar is at am end (e). 
 
 If the plaintiff make a new assignment, and the general issue be 
 
 (•) BulL N. r. 34. 91. (i) 1 W. R. 673- (0 B^'ll- N. P. 92- 
 
 {d) z 131. R. 1089. W Bull. N. P. 9i.
 
 Sect. IL] irregular, or excessive Distress, 507 
 
 joined thereon, the plaintitF cannot prove the defendant guilty at the 
 place mentioned in the bar : for when the plaintiff nnakes a new as- 
 signment he waives that whereto the defendant pleaded in bar ; so as 
 in truth if it be the same place, he can never take advantage thereof, 
 and therefore if it be the same, yet the defendant ought not to re- 
 join that it is so, but plead not guilty and take advantage of it at 
 the trial [a). 
 
 A man is not obliged to justify a distress for the cause which he 
 happens to assign at the time it was made. If he can shew that he 
 had a legal justification for what he did that is sufficient. A man 
 may distrain for one thing and avow for another : thus, he may dis- 
 train for rent and avow for heriot service (b). 
 
 On a justification for taking cattle damage-feasant, if it appear 
 that the party distraining had not actually got into the locus in 
 quo before the cattle had got out of it, the justification cannot be 
 supported (<:). 
 
 In trespass for taking and driving plaintiff's cattle, to which there 
 was a justification, that defendant was lawfully possessed of a certain 
 close, and that he took the cattle damage-feasant, plaintiff may spe- 
 cially reply title in another by whose command he entered, l^c. and 
 it does not vitiate the replication that it is unnecessarily proved, and 
 farther to give colour to the defendant [d). 
 
 For as trespass is a possessory action, it is enough for the plaintiff 
 in his replication to traverse the title set out by the defendant, without 
 setting up a title in himself; for the possession admitted in the plea in 
 giving colour is sufficient unless the defendant can make out a title in 
 himself. — But if in trespass for taking a gelding (or other chattel), 
 the defendant pleads that the place where is one hundred acres, and 
 that J. S. is seised thereof in fee, and that he as his servant and by 
 his express orders took the gelding (or other chattel) damage-feasant ; 
 the plaintiff cannot reply de injuria sua propria absq. tali causoy for that 
 would put in issue three or four things ; but he must traverse one 
 thing in particular (<f). 
 
 If the defendant plead that it is his freehold, the plaintiff may reply 
 three ways: i. that it is his freehold, and then he must always 
 traverse the defendant's plea, except in one case, and that is where 
 he makes a new assignment. 2. Or he may derive a title under the 
 defendant, and then he must not deny its being the defendant's 
 freehold. 3. He may set up a title not inconsistent with the defend- 
 ant's, and then he may either traverse the defendant's title, or aoM 
 as he pleases {/)• 
 
 It is not necessary to have an interest in the soil, to maintain tres- 
 pass quare clauswn fregit^ but an interest in the profits is sufficient, as 
 
 {a) Bull, N. P. 92. - (i) 7 T, R. 657. 3 T. R. 646. i Esp. N. P. 95. 
 
 {d) I Esp. R. %\%. (/) Bull. N. P. ';3. (/) Ibid. 94.
 
 508 Remedies for an unfounded, [Chap. XIX. 
 
 he who has/)r«;;a tonsura. So, if J. S. agree with the owner of the 
 soil to plough and sow the ground, and for that to give him half the 
 crop, jf. S. may have his action for treading down the corn, as the 
 owner is not jointly concerned in the growing Corn, but is to have 
 half after it is reaped by way of rent, which may be of other things 
 than money : though in Co. Lit. 142. it is said it cannot be of the 
 profits themselves ; but that (as it seems) must be understood of the 
 natural profits (a). 
 
 The plaintiff may prove trespass at any time before the action 
 brought, though it be before or after the day laid in the declaration. 
 But in trespass with a conthmandoj the plaintiff ought to confine him- 
 self to the time in the declaration; yet he may waive the continuando, 
 and prove a trespass on any day before the action brought, or he may 
 give in evidence only part of the time in the conthmando {h). 
 
 The plaintiff can only prove the taking such goods as are mentioned 
 in the declaration ; because a recovery in the action could not be 
 pleaded in bar to any other action brought for taking other goods than 
 those specified in the declaration. Therefore, when the declaration 
 was for entering the plaintiff's house, and taking diversa bona et catalla 
 ipsius qiierentis ibidem inventaj after verdict for the plaintiff the judg- 
 ment was arrested [c)-. 
 
 By the stat. 21 ^. i. c 16. the defendant may to trespass quare 
 dausum f regit y plead a disclaimer, and that the trespass was by negli- 
 gence or involuntary, and tender of sufficient amends before the 
 action brought ; whereupon, or upon some of them the plaintiff shall 
 be forced to join issue : and if the said issue be found for the defend- 
 ant, or the plaintiff shall be nonsuited, the plaintiff shall be clearly 
 barred from the said action, and all other suits concerning the same. 
 
 Though the verdict do not agree with the plea in the manner and 
 nature of the tenure, yet if it agrees in substance in the point for 
 which the distress was made, that is sufficient •, for there is a differ- 
 ence between trespass and replevin, for in replevin it behoves the 
 avowant to make a good title in omnibus (d). 
 
 Thus in trespass for breaking and entering the plaintiff's house and 
 taking his goods, the defendant pleaded, that the house is parcel of a 
 half yard holden of A. by homage, fealty, escuage, uncertain suit of 
 Courts, enclosing his park with pales, and rent of a pound of comyn, 
 and for three years' arrear, and for homage and fealty of the tenant, 
 he by y/.'s command entered and took, ^c. the defendant traversed 
 the tenure modo et formd. Special verdict that he held of A. by 
 homage, fealty, enclosing his park, rent of a pound of comyn, ct non 
 alitery and judgment for the defendant (e). 
 
 In trespass for taking the plaintiff's cattle, justification that they 
 
 (u) Bull. N. P. 85. (i) Ibid, 86. (c) Ibid. 84. 
 
 (d) Ibid. 56. (0 Ibid. 5J.
 
 Sect. II.] irregular, or excessive Distress. 509 
 
 were damage-feasant in the defendant's close Is sufficient without 
 setting forth a title (a). 
 
 If trespass for taking and selling the plaintiff's goods be brought 
 against two persons, and the one suffers judgment to go by default, 
 and the other justifies the taking on a distress for rent, by command of 
 his co-defendant, and the selling by the licence of the plaintiff, and 
 issue be taken on the licence and found for the defendant, the judg- 
 ment suffered by default shall be arrested ; for the case of a licence 
 cannot be distinguished from a gift of goods, or a release, which de- 
 stroys the cause of action as to all the defendants {b). 
 
 Trover for an irregular Distress. 
 
 Trover also lies for a distress illegally taken ; as where a right to 
 distrain exists, but the distrainer (where the distress is for rent) takes 
 such goods as are not lawfully the subjects of a distress 5 as wearing 
 apparel In use, ^c. 
 
 For where cattle or goods are wrongfully taken and detained, the 
 party may bring trespass vi et armis^ replevin, trover, or detinue j or 
 if they are converted into money, he may waive the tort, and bring 
 assumpsit for money had and received : but the plaintiff having once 
 made his election, cannot afterwards bring another action for the 
 same cause, either whilst the former is depending, or after it has been 
 determined (f). 
 
 If therefore a party pay money in order to redeem his goods from 
 a wrongful distress for rent (or any other supposed ground of distress, 
 it is presumed,) he may maintain trover against the wrong doer (d). 
 
 In order to maintain trover the plaintiff must have a right of pro- 
 perty in the thing, and a right of possession ; and unless both these 
 things concur, the action will not lie. — Therefore where goods 
 leased, as furniture with a house, have been wrongfully taken in exe- 
 cution by the sheriff, the landlord cannot maintain trover against the 
 sheriff (f). 
 
 For trover is a special action on the case, which one man may have 
 against another, who hath in his possession any of his goods by de- 
 livery, finding, or otherwisey or sells or makes use of them without 
 his consent, or refuses to deliver them on demand ; and it Is for re- 
 covery of damages to the value of the goods ; and therefore a declara- 
 tion ought to contain convenient certainty in the description of the 
 things, -so that the jury may know what is meant thereby {f). 
 
 The conversion is the gist of the action, and the manner in which 
 the goods came to the hands of the defendant is only inducement ; 
 
 (a) lo Mod. 37. (3) 8 Mod. 217. a Ld. Raym. 137a. >. c. 1 Str. 6io. s. c. 
 
 (0 I Tidd's Pract. 10. {d) 6 T. R. 298. (#) 7 T, R. 9. 
 
 (/) BulLN. P. 32.
 
 510 Remedies for an unfounded, [Chap. XIX. 
 
 and therefore the plaintiff may declare upon a devenerunt ad manus 
 generally, or specially per inventionemj (though the defendant came to 
 the goods by delivery,) for being but inducement, such need not be 
 proved ; but it is sufficient to prove property in himself, possession to 
 have been in the defendant, and a conversion by him. So, the de- 
 claration was holden to be good, though the conversion was laid to be 
 on a day before the trover, for the postea convertit is sufficient, and the 
 viz. void (a). 
 
 The distinction between the action of trespass and trover is well 
 settled ; the former is founded on possession, the latter on property : 
 a special property is sufficient in order to enable the party to bring 
 trover j and even property is sufficient without possession {b). 
 
 To support an action of trover, there must be a positive tortious 
 act {c). 
 
 Trover being founded on a tort, " not guilty" is the general issue. 
 A release also may be pleaded specially, and it seems is the only 
 special plea in this action. But as the defendant cannot plead the 
 special matter, he may give it in evidence on the general issue {d)* 
 
 Where the goods are cumbrous, instead of allowing them to be 
 brought into Court, the Court will grant a rule to shew cause, why 
 on the delivery of the goods to the plaintiff and paying costs, proceed- 
 ings should not be staid {e). 
 
 Trespass for an irregular Distress. 
 
 Trespass will also lie for any irregularity in making the distress or 
 in the subsequent disposition of it, or conduct respecting it. 
 
 Therefore, trespass lies against a landlord, who, on making a dis- 
 tress for rent, turned plaintiff's family out of possession, and kept the 
 premises on which he had impounded the distress (/). 
 
 But respecting a distress for rent, by stat. 1 1 G. 2. c. 19. a dis- 
 tress for rent shall not be deemed unlawful for any irregularity in the 
 disposition of it afterward, nor the party making it a trespasser ab 
 initio : but the party aggrieved may recover full satisfaction for the 
 special damage he shall have sustained thereby, and no more, in an 
 action of trespass or on the case, unless tender of amends have been 
 before made. s. 19. 
 
 Trover therefore will not lie in such case (g). 
 
 Trespass will not lie on an irregular distress, when the irregularity 
 complained of is not in itself an action of trespass, but consists 
 merely in the omission of some of the forms required in conducting 
 the distress, such as procuring goods to be appraised before they are 
 sold ; the true construction of the provision, in 11 G. 2. c. 19. s. 19. 
 
 (<i) Bull. N. P. 23- (*) 4 T. R, 489. Bull. N. P. 33. (e) t Bos. &. Pul. 439. 
 
 (<0 Bull. N. P. 48. (0 Ibid. 49. (/) J East. R. 139. (j) l H. Bl. R. 15.
 
 Sect. II.] irregular, or excessive Distress. 511 
 
 that the party may recover a compensation for the special damage he 
 sustains by an irregular distress in an action of trespass, or on the 
 case, is that he must bring trespass if the irregularity be in the nature 
 of an act of trespass ; and case if it be in itself the subject-matter 
 of an action on the case (a). 
 
 Action on the Case for an excessive Distress, 
 
 As to an excess of a distress taken, an action on the case lies for 
 that on the statute of Marlbridge^ ^2 H. c. i. but that will not warrant 
 an action of trespass (h). 
 
 Thus in trespass for breaking and entering his house, and taking an 
 excessive distress, after judgment by default, it was holden, on error 
 brought, that trespass would not lie, for the entry was lawful, and 
 there is nothing subsequent to make it a trespass, as there is when the 
 distress is abused. At common law, the party might take a distress of 
 more value than the rent, therefore that did not make him a trespasser 
 ab initioy but the remedy ought to be by a special action founded upon 
 the statute of Marlbridge [c). 
 
 (a) % Campb. 115. {b) 7 T. R. 658. (<:) Bull. N. P. [81.] 
 
 CHAPTER XX. 
 
 Of the Remedies for Tenants against Landlords 
 (continued.) 
 
 Of the Tenants Remedies hy Action of Covenant or As- 
 sumpsit, according as the Lease is hy Deed or without 
 Deed. 
 
 IF the landlord commit a breach of covenant, if the lease be by deed, 
 or violate his contract if the lease be by writing without deed, or 
 by parol agreement, the tenant may in the one case sue him for da- 
 mages in an action of covenant, and In the other in that of assumpsit. 
 
 A breach of covenant need not be assigned in express words : it is 
 sufficient If it be a direct affirmative, and certain to general intent (a). 
 
 Therefore, on a covenant that the defendant had a right to let for 
 the term, a breach assigned generally that he had not a right to let is 
 good ; for the covenant being general, the breach may be assigned as 
 general as the covenant, and it lies not in the plaintiff's notice who 
 
 {a) Cro. Jac. 383. 4 T. R. 6ai.
 
 .512 Oftfie Tenanfs Remedies, [Chap. XX. 
 
 had the rightful estate ; but the defendant ought to have maintained, 
 that he was seised in fee, and had a good estate to demise, and then 
 the plaintiff ought to have shewn a special title in some other ; but 
 primd facie the count is good, the covenant being general, to assign a 
 general breach {a). 
 
 So in assigning a breach of covenant that was for quiet enjoyment, 
 it was held to be sufficient that at that time of the demise to the plain- 
 tiff, A* had lawful right and title to the premises, and having such 
 lawful right and title entered, ^c. and evicted him, l^c. without 
 shewing what title A. had ; or that he evicted the plaintiff by legal 
 process, ^c. Alleging that « the party having a lawful right and 
 title, entered," is equivalent to saying " he entered by lawful right 
 and title (^)." 
 
 So also, if a covenant be against the act of any particular person, 
 interruption assigned as a breach is good, without shewing by what 
 title (c). 
 
 So, if a lessor covenant for quiet enjoyment against the lawful let, 
 suit, entry, l!Sc. of himself, his heirs, and assigns, the declaration for 
 a breach of the covenant need not expressly allege that he entered 
 claiming title, if the disturbance complained of is such as clearly ap- 
 pears to be an assertion of right (^). 
 
 On a covenant that A. and his wife shall enjoy, ^c. a breach that 
 A. was ousted is sufficient {e). 
 
 However, to establish a breach of covenant for quiet enjoyment 
 without incumbrance from any person, the plaintiff must shew a law- 
 ful incumbrance {f). 
 
 A condition that the lessee shall not molest, vex, ^c. any copy- 
 holder, is not broken by any entry on the premises v'l et armis to beat 
 him, if he do not oust him from his copyhold (g). 
 
 A covenant in a lease, that the lessee should quietly enjoy the estate 
 discharged from tithes, is broken by a suit for them after the expira- 
 tion of the term (^h). 
 
 But where in covenant for quiet enjoyment the breach assigned was, 
 that the defendant had exhibited a bill in Chancery against him for 
 f,j ploughing meadow, and obtained an injunction, which had been dis- 
 solved with 20J'. costs ; on demurrer, this was held to be no breach of 
 covenant, for the covenant was for quiet enjoyment, and this was a 
 suit for waste (i). 
 
 The seller covenants to the purchaser of an estate that he shall enjoy 
 and receive the rents, iffc. without any action, is'c, or interruption by 
 the seller or those claiming from him, or " by, through, or with his, 
 or their acts i'' this means default. Therefore, a breach was holden to 
 
 (<i) Cro. Jac. ■504. cont. scmb. i Mod. 66. (A) Cro. Eliz. 413. i Mod. loi. 4 T. R. 
 
 6ai. 8 T. R. 278. (*) Cro. Eliz. 213. (J) 1 T. R. 671. (e) Cro. Jac. 383. 
 
 (/) Ibid. 425. f^) llml. 421. Cro. I'liz. 914. (;i6, (A) Ibid. 316. (1) a Vent. 315.
 
 hy Action of Co'veymnt o/* Assumpsit. 513 
 
 be well assigned in respect of certain quit-rents in arrear before and at 
 the time of the conveyance, though not stated to have accrued while 
 the seller vi^as tenant of the premises [a). 
 
 But to covenant for enjoyment free from arrears, plea that the de- 
 fendant delivered money to the plaintiff, with intention for him to pay- 
 it over to the lessor, is good {h). 
 
 A covenant to surrender a copyhold to a purchaser, and to make and 
 do all acts, deeds, ^c. for the perfect surrender and assurance of the 
 premises at the costs and charges of the seller, is not broken by the 
 non-payment of the fine to the lord on the admission of the purchaser ; 
 for the title is perfected by the admittance of the tenant, and the fine 
 is not due till after the admittance (c). 
 
 In an action against executors in their own right on a covenant for 
 " good title and quiet enjoyment against any person or persons what- 
 soever," contained in an assignment of a lease of the testator by way 
 of mortgage, the declaration must shew a breach by some act of the 
 covenantors (d). 
 
 Covenant by a lessee against his lessor, and breach assigned on the 
 covenant for quiet enjoyment, for that the lessor ousted him : the de- 
 fendant pleaded that he entered to distrain for rent, and traversed that 
 he ousted him de pramissis ; the plaintiff demurred, for that he did not 
 traverse that he ousted him de pramissis or any part thereof. Sed per 
 Curiam^ the plea is good, and proof of any part, had the plaintiff 
 joined issue, would have been sufficient {e). 
 
 Where the covenant is founded on a conveyance of an estate which 
 proves to be void, the covenant is void also. 
 
 Thus, v/here the conveyance was " a grant of so much of a term as 
 should be unexpired at the death of yf." and covenant for quiet enjoy- 
 ment, and bond for performance of covenants : this conveyance being 
 void, on account of the uncertainty of the time when the term was to 
 commence and end {Co. Lit. 456,] the covenants were adjudged to be 
 Yoid, as they depended on the estate {/). 
 
 But though a lease be void, covenant lies in certain cases for a breach 
 of covenant before the lease became void. 
 
 Thus, upon the stat. 13 Eliz. c. 20. (since repealed) of leases made 
 by parsons, that upon non-residency for eighty days the lease shall be 
 void, yet it was adjudged, that where a parson made such a lease by 
 indenture, in which were divers covenants on the lessee's part, and 
 after the lease, l^c. became void by non-residency, ^c. for a covenant 
 broken before, an action of covenant lay (^). 
 
 [a) 3 East's R. 491. (J>) 4 Mod. 249. {c) x East's R. 63a. 7, T. R. 484. 
 
 (d) I H. Bl. R. 84. {e) I Salk. a6o. Bull. N. P. 301. (/) Sir T. Raym. a;. 
 
 3T.R.438. {£) CrcEliz. 78. 
 
 LI
 
 [ 514 ] 
 
 CHAPTER XXT. 
 
 Of the Remedies for Tenants against third Persons, 
 
 Section I. Of Distress for Damage Feasant and Rescous. 
 
 Section IL Of Trespass for immediate Injuries to his 
 Possession; and Case for consequential 
 07ies. 
 
 Section I. Of Distress for Damage Feasant^ and Rescous, 
 
 F the inclosures, ^c. of the tenant be broken down, or his land 
 injured by the cattle, ^c. of another person, he may either bring 
 an action of trespass for the damage done, or he may take the cattle, 
 ^c. as a distress damage feasant ; for the party has his election, of the 
 two remedies ; but using one of them is an utter waiver of the other, 
 as the election of one cannot but be considered to be an implied rejec- 
 tion of the other ; beside that neino debet bis vexari pro eddem causa : a 
 distress, therefore, taken damage feasant, as long as it is detained, is a 
 good bar to trespass [a). 
 
 If a beast has done more damage than he is M'orth, let the injured 
 party not distrain, but rather take his action [b). 
 
 This ground of distress is upon the principle of the law of recom- 
 pence, which justifies the party in retaining that which occasions an 
 injury to his property, till amends be made by the owner. 
 
 Damage feasant, however, is the strictest distress that is; for the 
 thing distrained must be taken in the very act, for if they are once off, 
 though on fresh pursuit, you cannot distrain them ; this diversity ex- 
 isting between distress for rent and damage feasant, that one may dis- 
 train any cattle he finds on the premises for rent, but in the other case 
 they must be actually doing damage, and are only distrainable for the 
 damage they are then doing and continuing ; for if they have done 
 damage to-day and gone off, and come again at another time and are 
 doing damage, and are taken for that, and the owner tender amends 
 for that damage, the party cannot justify keeping them for the first 
 damage [b). 
 
 Moreover, if ten head of cattle are doing damage, one cannot take 
 one of them and keep it for the whole damage, but may bring trespass 
 for the rest [b). 
 
 («) 12 Mod. 663. ■ (i) Ibid. 661.
 
 Sect. I.] Of Distress for Damage Feasant^ S;c. 515 
 
 For damage feasant one may distrain in the night, otherwise it may- 
 be the beasts will be gone before he can taice them ; in which resnect, 
 this distress differs from that for rent, or rent-service, which 'must be 
 in the day-time [a). 
 
 If the distress be stolen or set at large by a stranger, the distrainer 
 shall not be answerable for it ; but if in that case replevin be brought 
 and an elongatur rcinxuzd^ as there must be, there shall be a withernam, 
 and the distrainer is liable till he shew the matter, which, being no de- 
 fault of his, will excuse him {b). 
 
 If tender be made of damages before the taking, the taking is un- 
 lawful ; if after the taking and before impounding, then the detainer 
 after is unlawful ; but tender comes too late after the impounding to 
 make either the taking or detaining unlawful : still, however, after the 
 impounding, the distrainer may take the amends and let go the distress 
 if he please. 
 
 If a distress damage feasant escape, or die, without any neglect of 
 the distrainer, he may have an action of trespass against the owner. 
 
 In trespass qtiare claimim fregit, the defendant pleaded, that the 
 plaintiff distrained his hog damage feasant for the same trespass ; the 
 plaintiff replied, that the hog escaped without his consent, and that 
 he was not satisfied for the damage : on demurrer, it was holden, 
 that the action would not lie, though it was admitted that if the dis- 
 tress had died, the action would revive j but the escape (unless the 
 contrary be shewn) was the fault of the plaintiff (c). 
 
 Of Rescous, 
 
 Rescous is where the owner or other person takes away by force a 
 thing distrained from the person distraining ; but the person must be 
 actually in possession of the thing, or else it is no rescous ; as if a 
 man come to make a distress, and he be disturbed to do it : but the 
 party may bring an action on the case for this disturbance [d). 
 
 The plaintiff ought to count for what rent or services he took the 
 distress, and the defendant may traverse the tenure {d). 
 
 If a man send his servant to distrain for rent, Iffc. and rescous be 
 made, the master shall have the writ, and he may join in the writ for 
 assault and battery of the servant; for both are torts. The joinder 
 of action depends on the form of the action ; for wherever the same 
 plea may be pleaded, and the same judgment given on two counts, 
 they may be joined in the same declaration (e). 
 
 If the defendant plead " not guilty," which is the general issue, 
 he cannot give in evidence non-tenure of the plaintiff who distrained 
 for rent, but he ought to plead it [/), 
 
 (a) Co. Lit. 14a. (i) I Mod. 660. (c) Bull. N. P. 84. 
 
 (J) Ibid. (<r) Ibid. 1 T. R. 176. (/) Bull. N. P. 62. 
 
 LI 2
 
 516 Of Trespass for immediate Jfijuries [Chap. XXI. 
 
 But this action is rarely brought at this day, but a special action on 
 the case in which non-tenure may be given in evidence on the general 
 issue [a). 
 
 Vide ante touching stat. i W.^ M. c. ^. s. 4. l^c. 
 
 In an action on the case for the rescue of a distress intended for 
 sale, the plaintiff need not state that he gave notice of the distress ; 
 nor, if the rent became due upon a lease for years, need he aver 
 occupation : for upon a lease for years the rent is payable though the 
 lessee never occupies ; cofitra of a lease at will. Nor, though the 
 rent was payable only during occupation, need he shew any thing 
 more than the lessee's entry [b). 
 
 The venue may come from the vill where the rescue was, without 
 ioining either the vill where the demise was made, or the distress 
 taken {b). 
 
 Section II. Of Trespass for imjnediate hyiiries to the 
 Te?ia?tfs Possessio?i. 
 
 Where the immediate act itself occasions a prejudice, or is an in- 
 jury to the house, land, ^c. of another, trespass vi et armis will 
 lie {c). 
 
 This is a possessory action ; therefore, whoever is in possession 
 may maintain an action of trespass against a wrong-doer to his pos- 
 session {(I). 
 
 Therefore, where a party being entitled under a lease from the 
 Crown to the sole right of digging lead in a certain district, to the 
 soil of which she had no right, let to the plaintiff all her right so to 
 dig during her term : upon his bringing trespass on the case against 
 the defendant for taking the lead, it was held that, being in posses- 
 sion, he should have brought trespass vi et armis ; wherefore he was 
 nonsuited [e). 
 
 So, trespass vi et armis lies for one who has the profits of the soil, 
 though not the soil itself; as herbagium, pastiira^ l^c, (jT). 
 
 It lies against a wrong-doer, even though the tenant's possession 
 be void. 
 
 Therefore, one in possession of glebe land under a lease void by 
 Stat. 13 Eln. c. 20. by reason of the rector's non-residence, may yet 
 maintain trespass upon his possession against a wrong-doer (^g). 
 
 Note. Where there is a demise of premises, and an entire rent re- 
 served, if any part of the premises could not be legally demised, the 
 whole demise is void [h). 
 
 {a) Bull. N. P. 6a. (//) 1 Ld. Raym, 170. (0 Ibid. 79. 
 
 {J) Cro. J.ic. 123. 3 Burr. R. ij6.1. (<■) Ibid. I IaI. Raym. 188. 
 
 (/) J I3iirr. U. 1827. 0.0 I least's R. 212. (/) 3 i'sp- R- 71-
 
 Sect. II.] to the Tenant's Possession, 517 
 
 As trespass is a possessory action, and possession is sufficient to 
 maintain it against a stranger, no special title need be made (a). 
 
 In trespass, the plaintiff need not falsify the defendant's title ; for 
 the defendant's title being out of the case, it then stands under the 
 plaintiff's possession, which is enough against a wrong-doer-, and 
 the plaintiff need not reply a title (b). 
 
 Trespass was brought for breaking and entering the plaintiff's 
 house, and beating, and abusing, and ill-treating him : plea not 
 guilty. The defence was, that the plaintiff being a pauper had 
 many years before been placed by the parish otlicers of that time in 
 the house, where the defendants, seven in number, committed the 
 trespass, and that the defendants as parish officers came to the house 
 to remove the plaintiff" and his family to another house, that the 
 plaintiff refused to quit and fastened his house against them, and 
 that they in consequence broke open the house and by violence dis- 
 possessed the plaintiff" and his family. Plumer for the plaintiff ob- 
 jected, that under the plea of " not guilty," the defendants were not at 
 liberty to enter into evidence of this kind by way of justification. But 
 Le Blancy J. was clearly of opinion that the defendants might, under 
 not guilty, give evidence of libenim tcnemcntmn^ and that if the plain- 
 tiff had been put into the house by the parish, he could by no length 
 of possession whatever acquire any title, but might at any time be 
 turned out of possession by the parish officers ; and if he resisted, force 
 might lawfully be used to dispossess him ; that the evidence offered, 
 therefore, amounted to liberum tenementmriy and that it would be a 
 question for the jury to decide, whether any unnecessary violence 
 had been used in accomplishing a legal object, and to what damages, 
 if any, the plaintiff was entitled. It being proved that great and 
 unnecessary violence had been used, the jury, on that ground only, 
 found a verdict for the plaintiff for 40j-. {c). 
 
 At the assizes at Hereford on this circuit, the same question came 
 before Laivrencey "J. in Worthington v. Baistery and received a similar 
 determination. This was an action of trespass for breaking and en- 
 tering the plaintiff's house, and disquieting him in the possession 
 thereof, ^c. On the evidence it appeared, that the house, more 
 than twenty years ago, had been built on a piece of waste ground at 
 the expense of the parish for the plaintiff; that the plaintiff had ever 
 since occupied it with his family, paying no rent to the parish or 
 making any other acknowledgment ; that lately the parish officers had 
 made claim to the premises and put another family into the house to 
 occupy it jointly with the plaintiff, in doing which they had com- 
 mitted what the plaintiff declared on as a trespass. Lawrence^ J. 
 
 (a) Cro. Jac. 123. (i) 2 Str. iz^Z. 
 
 (c) Fox V. Oakley and others, Oxf. Sum. Ass. i8oz, at Shrewi. T.'s MSS.
 
 518 Of Trespass for immediate Injuries [Chap. XXL 
 
 very early in the cause, delivered it as his clear opinion, that if the 
 house was originally built by the parish, and the plaintiff put into it 
 by them, no length of time would turn his possession into a title 
 against the parish ; that he could only be considered as a mere tenant 
 at will, and that of course his right of possession ceased with the de- 
 termination of that will. — Upon this opinion of the Judge's being 
 given, the point contended between the counsel on both sides was, 
 at whose expense the house was originally built, and on its being 
 proved that the house was erected at the costs of the parish the 
 plaintiff v/as immediately nonsuited, 
 
 A lease was made of a farm, and also of certain allotments of 
 common, enclosed under an Act' that contained the usual clause em- 
 powering the commissioners to distrain or enter, and take the rents 
 and profits in failure of the owner of the land to whom the allot- 
 ments v/ere parcelled out, paying his proportion of the expenses of 
 the Act ; and the question was, who should defray such expenses 
 and the expense of fencing such allotments ? It was ruled that such 
 expenses were to be borne by the landlord, Lord Ellenborought C. J. 
 observing, that " The Act gives the commissioners power to oust 
 the tenant from his occupation ; and v/hen a power is to oust the 
 tenant of the rents and profits, there the tenant may pay in his own 
 discharge, and for the redemption of the land (a)." 
 
 Trespass lies against a person for disturbing the plaintiff in the 
 profits of a fair by erecting a toll-booth, without saying quare clausum 
 f regit {a). 
 
 The Stat. i6 ^ 17 Car. 2. says, that if in an action of trespass 
 the plaintiff happen to omit the words vi et armisf or contra pacem^ 
 the want of those words shall not vitiate the declaration. 
 
 If there is lessee for life or years of lands, the lessee has no pro- 
 perty in the trees growing on the land, and even if the clause in the 
 lease is " without impeachment of waste," it gives no property, but 
 is merely an exemption from an action. Yet if a stranger cuts down 
 any trees, the lessee may maintain trespass, but he shall not recover 
 damages for the value of the trees, because the property of them is 
 in him in reversion j but the damages shall be for cropping and 
 breaking his close, and perhaps for the loss of shade, tsfc, [b). 
 
 This action also lies for not repairing fences, whereby cattle cottie 
 into ground of the tenant and do damage (<r). 
 
 Every man's ground is, in the eye of the law, fenced ; and where 
 a hedge and ditch join together, in whose ground or side the hedge 
 is, to the owner of that land belongs the keeping of the same hedge 
 
 (fl) Smith -u. Pearcc, Sitt. at Guildliall after M. T. 43 G. 3. 
 \k) Esp. N. P. 384. 4 Co. 62. a. (0 I Salk. 335-.
 
 Sect. II.] to the Tenants Possession. 519 
 
 or fence, and the ditch adjohiing to it on the other side, in repair 
 and scoured {a). 
 
 Where entry, authority, or licence, is given to any one by the law 
 and he abuses it, he will be a trespasser ab initio ; but where it is 
 given by the party, he may be punished for the abuse, but he will 
 not be a trespasser ab initio {b). 
 
 Where the plaintiff is in the actual occupation of the land, though 
 he had no legal title whatever, the defendant cannot give evidence of 
 property in a stranger under the general issue ; but where land is not 
 in the actual possession of any person, as commons and the like, the 
 defendant, on such issue, may prove the legal possession to be in a 
 third person [c). 
 
 It will be a trespass, if a man wrongfully enters the house, lands, 
 or tenements of another without his consent ; and therefore trespass 
 lies de domo suo fractd. So, for entering his messuage or tenement. 
 Or breaking his close. Or treading down, spoiUng, eating, Isjc. his 
 hay or corn. Or cutting down trees. Or hunting in his close. Or 
 breaking hedges and ditches. Or throwing down or disturbing the 
 setting of his fold. Or breaking up his pond. So if a man enters 
 and does damage to another, though he does not keep the posses- 
 sion ; as trespass lies quare domiim vel clausum f regit {d). 
 
 The lessee for years, after the lease is expired, may have action for 
 a trespass on the land before his lease was ended {c). 
 
 Where one declared in case for obstructing a watercourse upon 
 his ** possession" of a mill " with the appurtenances" and that << by 
 reason of such his possession he had a right to the use of water run- 
 ning in a certain tunnel to the mill," such allegation was not sup- 
 ported by proof that the tunnel was made on the defendant's land, 
 which he had agreed to let the defendant have for this purpose for a 
 certain consideration, but of which no conveyance was made by him 
 to the plaintiff, and he had since refused assent : because the plaintiff 
 had not the water by reason of his " possession" to the mill, cfc. but 
 by parol licence or contract, which could not pass the title to the land, 
 and as a licence was revokable, and revoked (y). 
 
 Where there is a tenant in possession, and an execution (as by fi. 
 fa.) is against the landlord, whose term is to be sold, the tenant can- 
 not, it should seem, be turned out of possession (g). 
 
 But it is very different where the debtor himself is in possession ; 
 in such case, Bullery J. inclined to think that the sheriff" might turn 
 him out of possession [g). 
 
 The action of trespass is local [h). 
 
 (a) 10 Mod. 140. Par. Oss. i88. (b) Bull. N. P. Si. (c) Peake's R. 67. 
 
 {d) F. N. B. 87. B. &c. Com. Dig. tit. Trespass. (A. 2.) (t) Bro. Tresp. 456. 
 
 (/) 4 East's R. 107. {g) 3 T. R. 298. {h) 11 Mod. i8r.
 
 520 Of Trespass for immediate Injuries [Chap. XXT, 
 
 The plaintiff may prove trespass at any time before the action 
 brought, though it be before or after the day laid in the declaration. 
 But in trespass with a continuatido^ the plaintiff ought to confine him- 
 self to the time in the declaration : yet he may waive the continuanday 
 and prove the trespass on any day before the action brought, or he 
 may give in evidence only part of the time in the continuando. — 'Note. 
 That of acts which terminate in themselves, and once done cannot be 
 done again, there can be no continuando ; as hunting or killing a hare, 
 or five hares, but that ought to be alleged, that diversis diebus ac 
 v'lcibus between such a day and such a day, he killed five hares, and 
 cut and carried away twenty trees. Where trespass is laid in con- 
 tinuance that cannot be continued, exception ought to be taken at the 
 trial, for he ought to recover but for one trespass ; but hunting may 
 be continued, as well as spoiling and consuming grass {a). 
 
 Whether the trespass may be laid with a continuando or not, depends 
 
 '-'much upon the consideration of good sense ; as where trespass is 
 brought for breaking a house or hedge, it may well be laid with a 
 continuando, for pulling away every brick or stick is a breach : but if 
 the declaration be that the defendant threw down twenty perches of 
 hedge continuando transgressionem pradictam from such a day to such a 
 day, this must be intended of a prosternation done at the first day, 
 and therefore will be ill upon demurrer or judgment by default ; but 
 
 "it will be aided by verdict, because the Court will intend that the 
 jury gave no damage for the continuando (b). 
 
 So, trespass cannot be laid of loose chattels with a conthittando, and 
 
 ^ if it be so laid no evidence can be given but of the taking at one day; 
 and therefore in trespass for mesne process it ought to be laid diversis 
 
 - diebus ac vicihus. Where several trespasses are laid in one declaration, 
 continuando trans gressiones pmdictasy and some of them may be laid 
 with a continuando and some not, after verdict the continuando shall be 
 extended only to the trespasser, which may be laid with a continuando. 
 So, where the continuando is impossible, the Court will intend that no 
 ■^•^' damages were given for it {c). m«s.W\^^Cv/^. 
 
 Though persons having only a right are not to assert that right by 
 force, and if any violence be used it becomes the subject of a criminal 
 prosecution, yet a person having a right of possession may peaceably 
 
 '•assert it, if he do not transgress the laws of his country ; for a person 
 
 -who has a right of entry may enter peaceably, and being in possession 
 ^''may retain it and plead that it is his soil and freehold (d). The com- 
 mon plea of liberum tmementum proves this (f). 
 
 It is impossible to suggest the possession of a certain term that is 
 not the subject-matter of a seizure by the sheriff under ^Jieri facias (^f) -^ 
 
 („) 4 T. R. 503. Bull. N. p. 86. {b) Ibid. ic) Ibid. {d) 3 T. R. 295. 
 
 (0 7T.R.43I- (/)3T.R. 295.
 
 Sect. II.] to the Tenanfs Possession. S2l 
 
 and as in a deed of assignment the sheriff need not specify the parti- 
 cular interest which the party had, so, if he can convey a title in 
 general words, it is equally sufficient to justify in the same general 
 words in an action of trespass [a). 
 
 It is a general rule in pleading that the party justifying must shew 
 and admit the fact [b). >-> t-r/jrr yfrrr 
 
 A special justification must be of matter of fact, and not of record ; 
 for matter of record must be pleaded even by an officer (<:). 
 
 Regularly, indeed, by the common law, matter of excuse or justi- 
 fication must be pleaded specially ; as in trespass to real property, 
 a licence ; or that the beasts came through the plaintiff's hedge, 
 which he ought to have repaired ; or by reason of a rent-charge, com- 
 mon or the like [d). 
 
 A justification in trespass must, it is said, answer the whole tres- 
 pass as laid in the declaration. 
 
 L. Thus, in trespass for breaking and entering plaintiff's house and 
 ■ expelling him, the plea justified the breaking and entering, shewing a 
 ' gdod cause for it, and it was held to be a full answer to the count ; 
 for the breaking and entering are the gist of the action, and the ex- 
 pulsion is only matter of aggravation [e). If the plaintiff had wished 
 
 fVtei, take advantage of the expulsion, he should have shewn the special 
 matter in a new assignment, for according to the six carpenters' case, 
 he should shew in reply that such makes the party a trespasser ab 
 initio (/). : f^yp^ ^^,. 
 
 Li Therefore, where trespass was for going over the plaintiff's close 
 
 ; with horses, cows, and sheep, and the defendant justified that he had 
 
 Tv^a way for horses, cows, and sheep, and said, that such a day he went 
 over with horses ; upon demurrer it was adjudged ill, for it was a 
 justification for horses only (g). 
 ■ In trespass, the value of the damages must be stated and proved (^}. 
 
 , i : Judgment recovered against another for the same injury is a good 
 
 < plea in bar to this action (f). 
 
 Of the judgment and damages. — In actions of tort, as trespass, ^c. 
 where the wrong is joint and several, the distinction seems to be this, 
 that where the plea of one of the defendants is such as shews that the 
 
 ^^ plaintifi^ could have no cause of action against any of them, there if 
 this plea be found against the plaintiff, it shall operate to the benefit 
 of all the defendants, and the plaintiff, cannot have judgment or 
 
 .u4amages against those who let judgment go by default ; but where the 
 plea merely operates in discharge of the party pleading it, that it shall 
 not operate to the benefit of the other defendants, but notwithstanding 
 
 • {a) 3 T. R. 298. {b) Ibid. (0 6 Mod. 40. [S) Tidd's Pract. 597. 
 
 \e) 3 T. R. 297. . (/) 8 T. R. 246. {£) II Mod. 219. {b) 6 Mod. 153. 
 
 (0 Cro. Eliz. 30. •
 
 522 Of Trespass for immediate Itijuries [Chap. XXL 
 
 such plea be found against the plaintiff, he shall have judgment and 
 damages against the other defendants (a). 
 
 If there be a demurrer to part and an issue upon the other part, or, 
 in an action against several defendants, if some of them demur and 
 others plead to issue, the jury who try the issue shall assess the 
 damages for the vi^hole, or against all the defendants. In this case, if 
 the issue be tried before the demurrer is argued, the damages are said 
 to be contingent, depending upon the events of the demurrer. But 
 where the issue, as well as the demurrer, goes to the whole cause of 
 action, the damages shall be assessed upon the issue, and not upon 
 the demurrer (^). 
 
 Where there are several defendants who sever in pleading, the jury 
 who try the first issue shall assess damages against all, with a cessei 
 executio ; and the other defendants, if found guilty, shall be contribu- 
 tory to those damages. In trespass against several defendants who 
 join in pleading, if the jury on the trial find them all jointly guilty, 
 tliey cannot assess several damages. But they may find some of them 
 guilty and acquit others, in vi'hich case the damages can be assessed 
 against those only who are found guilty : or they may find some of 
 the defendants guilty of the whole trespass, and others of part only : 
 or some of them guilty of part, or at one time, and the rest guilty of 
 the other part, or at another time ; in either of which cases, they may 
 assess several damages {c). 
 
 Also, where in an action against several defendants the jury by 
 mistake have assessed several damages, the plaintiff may cure it, by 
 entering a nolle prosequi as to one of the defendants and taking judg- 
 ment against the others ; or he may enter a remittitur as to the lesser 
 damages ; or, even without entering a remittitury he may take judg- 
 ment against all the defendants for the greater damages (d). 
 
 Where the jury upon the trial of an issue have omitted to assess the 
 damages, the omission may in certain cases be supplied by writ of 
 inquiry. Where they give greater damages than the plaintiff has de- 
 clared for, it may be cured by entering a remittitur of the surplus 
 before judgment {e). 
 
 Of the Costs. — As to costs, the stat. 22. 23 Car. 2. c. 9. enacts^ 
 That in all actions of trespass, wherein the Judge, at the trial of the 
 causes, shall not find and certify, under his hand, upon the back of 
 the record, that the freehold or title of the land mentioned in the plain- 
 tiff's declaration was chiefly in question ; the plaintiff, in case the 
 jury shall find the damages to be under the value of forty shillings, 
 shall not recover or obtain more costs of suit than the damages so 
 found shall amount unto. 
 
 (a) a Tidd's Pract. 805. (l>) Ibid. (0 Ibid. 805. 
 
 (d) 2 Tidd's I'ract. 80J. (/) Ibid. 806.
 
 Sect. II.] to the Tenant^s Possession, s^3 
 
 The construction (a) of this statute, which now prevails, Is that 
 the statute is confined to actions of assault and battery, (which 
 action is comprised in it) and actions for /offl/ trespasses, wherein it is 
 possible for the Judge to certify that the freehold or title of the land 
 was chiefly in question. In actions, therefore, for local trespasses, 
 the statute applies, whenever an injury is done to the freehold ; or to 
 any thing growing upon or affixed to the freehold ; and in a modem 
 case it was carried still further. — ^That was an action of trespass quare 
 clausum fregit ; the first count stated, that the defendants broke and 
 entered the close of the plaintiff's, and the grass of the plain- 
 tiff's there then growing, with feet in walking, trod down, spoiled, 
 and consumed, and dug up and got divers large quantities of turf, 
 peat, sods, heath, stones, soil, and earth of the plaintiff's, in and 
 upon the place in which, ^c. and tooh and carried aivay the same, and 
 converted and disposed of the same to their own use. Another count 
 was upon a similar trespass in another close. The defendants pleaded 
 the general issue to the whole declaration, and two special pleas to the 
 second count. On the trial, a verdict was found for the plaintiffs on 
 the general issue, with one shilling damages ; and for the defendants 
 on the special pleas : and the Judge had not certified. Per Lord 
 Mansfield. — " The question on this record is, whether the plaintiffs 
 are entitled to any more costs than damages under the stat. 22 ^ 23 
 C. 2. c. 9. "i There is a puzzle and perplexity in the cases on this 
 part of the statute, and a jumble in the reports ; and as the question 
 is a general one, we thought it proper to consult all the Judges ; and 
 they are all of opinion, that this case is within the statute, and that 
 the plaintiffs ought to have no more costs than damages. You will 
 observe, that what has been called an asportavit in this declaration is a 
 mode or qualification of the injury done to the land. The trespass is 
 laid to have been committed on the land by digging, ^c. and the 
 asportavit as part of the same act, and on the trial of the issue, the 
 freehold certainly might have come in question. This is clearly dis- 
 tinguishable from an asportavit of personal property, where the free- 
 hold cannot come in question, and which therefore is not within the 
 Act. Thus after trees are cut down, and thereby severed from tlie 
 freehold, if a trespasser comes and carries them away, that case is not 
 within the statute, because the freehold cannot come in question ; 
 here it might {b)." 
 
 Where an injury is done to a personal chattel, it is not within the 
 statute ; nor where an injury to a personal chattel is laid, in the same 
 declaration, with assault and battery, or a local trespass ; consequent- 
 ly, in these cases, though the damage be under forty shillings, the 
 plaintiff is entitled to full costs, without a certificate.— But then it 
 
 (a) % Tidd's Pract. 880. {b) Doug. 780.
 
 524 Of Trespass for inimediate Injuries ^-c. [Chap, XX?, 
 
 must be a substantive and independent injury : for where it is laid or 
 proved merely in aggravation of damages, as a mode or- qualification 
 of the assault and battery, or local trespass, or there is a verdict for 
 the defendant upon that part of the declaration which charges him 
 with an injury to a personal chattel it is within the statute (a). 
 
 The certificate required by this statute need not, it seems, be 
 granted at the trial of the cause. — The award of an arbitrator is not 
 tantamount to a Judge's certificate under this statute. 
 
 It has been determined in several cases, that if the defendant, in 
 trespass quare clausiwi f regit, plead a licence or other justification, 
 which does not make title to the land, and it is found against him, 
 the plaintiff is entitled to full costs, though he do not recover 4oj'. 
 damages ; the principle on which these determinations have proceeded 
 is, that where the case is such, that the judge who tries the cause 
 cannot in any view of it grant a certificate, it is considered to be a 
 case out of the statute. So on a plea of not guilty to a new assign- 
 ment of extra viam, the plaintiff obtaining a verdict for less than /^os. 
 damages is entitled to full costs, without a judge's certificate; unless 
 the way pleaded be set forth by metes and bounds : and when the 
 plaintiff is entitled to costs upon the new assignment, he is entitled 
 to the costs of all the previous pleadings (b). 
 
 The Stat. 4^5 W. ^ M. c. 23. s. 10. after reciting that great 
 mischiefs ensue by inferior tradesmen, apprentices, and other dissolute 
 persons, neglecting their trades and employments, vi'ho follow hunting, 
 fishing, and other games, to the ruin of themselves and damage of 
 their neighbours, enacts, " That if any such person shall presume to 
 hunt, hawk, fish, or fowl, (unless in company with the master of 
 such apprentice, duly qualified by law), such person shall be subject 
 to the penalties of this Act, and shall or may be sued or prosecuted 
 for his wilful trespass, in such his coming on any person's land : and 
 if found guilty thereof, the plaintiff shall not only recover his 
 damages thereby sustained, but his full costs of suit ; any former law 
 to the contrary notwithstanding." The words *' inferior tradesman'* 
 extend, it seems, to every tradesman, not qualified to kill game : but 
 this was doubted in a subsequent case, wherein the Judges were 
 divided in opinion upon the question, whether a surgeon and apothe- 
 cary should be considered as an inferior tradesman (^). 
 
 So, by the Stat. 8^9 W. 3. f. 1 1. j. 4, for the prevention of wilful 
 and malicious trespasses, it is enacted, " That in all actions of tres- 
 pass, to be commenced or prosecuted in any of his Majesty's courts 
 of record at Westminster, wherein at the trial of the cause it shall 
 appear, and be certified by the Judge under his hand upon the back 
 of the record, that the trespass, upon which any defendant shall be 
 
 W Doug. 88 z. (Oll'id. 884. (0 Ibid. 886.
 
 Sect. II.] Of Trespass on the Case. 525 
 
 found guilty, was wilful and malicious, the plaintiff shall recover not 
 only his damages, but his full costs of suit ; any former law to the 
 contrary notwithstanding." The certificate, required by this statute, 
 need not be granted at the trial of the cause ; and if it appear on the . 
 trial that the trespass, however trifling, was committed after notice, 
 and the jury give less than 40X. damages, the Judge is bound to certify 
 that the trespass was wilful and malicious, in order to entitle the plaln- 
 tiiF to his full costs (a). 
 
 In an action of trespass, brought by a pauper against the overseers 
 of the poor, for entering his house and taking away his bed, it was 
 proved that on the defendants' entering the house, the plaintiff de- 
 sired them to go away, notwithstanding which they persevered in ac- 
 complishing their purpose. Heathy J. ruled this to be a wilful trespass; 
 and though he reprobated the action as an improper one, under the 
 circumstances in evidence, yet, he said, he had no discretion, but was 
 bound to certify that the trespass was wilful [b). 
 
 Where the declaration consists of several counts, the plaintiff in the 
 Court of K. B. is only entitled to the costs of such as are found for 
 him ; and neither party is allowed the costs of those which are found 
 for the defendant. Where the plaintiff's declaration consisted of two 
 counts, to one of which the defendant pleaded the general issue, which 
 was found for the plaintiff, and to the other a justification, to which 
 the plaintiff demurred, and judgment was thereupon given for the 
 defendant ; the Court agreed that the defendant could have no costs 
 upon the demurrer U). — But if there be two distinct causes of action, 
 in two separate counts, and as to one the defendant suffers judgment 
 to go by default, and as to the other takes issue, and obtains a verdict, 
 he is entitled to judgment for his costs on the latter count notwith- 
 standing the plaintltf is entitled to judgment and costs on the first 
 count. So where the declaration in trespass consisted of one count 
 only, to which there were several pleas of justification on which issues 
 were taken, and a new assignment on which judgment passed by 
 default, and a venire was awarded, as well to assess the damages on 
 tJie judgment by default, as to try the issues ; all the issues being 
 found for the defendant, it was holden that he was entitled to the 
 costs of them {d). ' ^*^ ^^^'' 
 
 Of Trespass on the Case. 
 
 For injuries to his possession, an action on the case will also lie in 
 most cases where trespass would be maintainable ; and in others where 
 it would not. 
 
 An, action on the case lies for consequential damages where the act 
 
 (a) Ibid. 887. (i) Oxf. Sum. Ass. 1800. T's MSS. (c) Dowg, 888. (rf) Ibid. 889.
 
 526^ Of Trespass on the Case. [Chap. XXI. 
 
 itself is not an injury. It is now indeed a settled distinction, that 
 where the immediate act itself occasions a prejudice, or is an injury 
 to the plaintiff's person, house, land, ^c. trespass vi et armiswiW lie; 
 but where the act itself is not an injury, but a consequence from that 
 act is prejudicial to the plaintiff's person, house, land, ^c. trespass 
 vi et armis will not lie, but the proper remedy is an action on the case 
 (a). The difference, therefore, between trespass and case is, that in 
 the trespass the plaintiff complains of an immediate wrong ; and in 
 case, of a wrong that is the consequence of another act (h). 
 
 Fixing a spout, therefore, so as to discharge water upon the land 
 of another, is only consequentially injurious, and the party who 
 sustains the damage must bring case in order to get a compensa- 
 tion [c). 
 
 So, if a man who ought to enclose against my land, do not enclose, 
 whereby the cattle of his tenants enter into my land, and do damage 
 to me, I may have this remedy {d). 
 
 So, case lies for breaking the fences of a third person, whereby my 
 cattle escape into his land and are distrained {e). 
 
 If a house of office be separated from other premises by a wall, and 
 that wall belongs to the owners of the house of office, he is of com- 
 mon right bound to repair it, and an action on the case will lie. 
 
 In such action by a lessee for years against the owner of the ad- 
 joining house, for not repairing a party-wall, by which the plaintiff's 
 house was damaged, it is not necessary to state that he was bound by 
 prescription to repair the wall ; it is sufficient to declare that he was 
 possessed of a messuage for a certain number of years, and that the 
 defendant ought to repair the wall (/). 
 
 Note. If the owner of the house is bound to repair it, he and not 
 the occupier is liable to an action on the case for an injury sustained 
 by a stranger from the want of repair {£). 
 
 But an action on the case for not repairing fences, whereby another 
 party is damnified, can only be maintained against the occupier, and 
 not against the owner of the fee, who is not in possession {h). 
 
 Case may be maintained by a lessee for years, for obstructing the 
 lights of an antient messuage. A declaration, that the defendant was, 
 and yet is possessed of a house and a void piece of land, and erected 
 buildings thereon, and thereby stopped the light coming by the said 
 windows into his house, whereby his house was totally darkened, and 
 he much prejudiced by such stopping, is good {t). 
 
 So in an action for stopping the plaintiff's lights, it is sufficient to 
 
 (a) Bull. N. P. 74. a Ld. Raym. 1402. 8 Mod. 375. 6 T. R. 449- (*) i Str. tlS- 
 
 (0 a I'd. Ray m. 1399. (</) Bull. N. P. 74. (<•) I Ld. Raym. 273. (/) 8 Mod. 
 
 312. Z l.d. Raym. 1089. ((r) % H. Bl. R. 349. la Mod. 168. 3 T. R. 766. (*) 4 T. 
 
 R.318. (0 Cro.Car. 325.
 
 Sect. II.3 Of Trespass on the Case. 527 
 
 declare that he was possessed of such a messuage for years and had and 
 ought to have such light, without stating that the messuage and lights 
 were antient (a). — Not lengthening windows, or making more lights 
 in the old wall than formerly, was thought by L. Hardiuicke not to 
 vary the right of persons. Indeed a contrary doctrine might create 
 innumerable difficulties in populous cities [b). 
 
 A prescription of antient lights is to the house, and not to the 
 person {c). 
 
 Special matter may be given in evidence on the general issue in an 
 action on the case for stopping lights {d). 
 
 This action lies for damage done to the plaintiff's colliery, by what 
 the defendant has done to his own colliery, within his own soil, though 
 several other collieries lie between them : and trespass vi et annis does 
 not lie, for the damage is not immediate, but consequential {e). 
 
 Case does not lie for a mere trespass; as, for pulling down a wall, 
 and raking down the tiles from a house, unless it be alleged that the 
 timber was thereby rotted (/). 
 
 A possessory right is sufficient to maintain an action of trespass or 
 case, though not a replevin. But trespass and case cannot be joined, 
 for the judgments differ; that in trespass being a capiat ur ; and that 
 in case, though vi et armisj a misericordia (^g). 
 
 As this action arises from the special damage, any thing may be 
 given in evidence on the general issue that destroys the right of ac- 
 tion [h). 
 
 A declaration for stopping up a watercourse, without shewing how, 
 is bad upon demurrer : but unobjectionable after verdict (/). 
 
 Case lies against the proprietor of tithes for not taking them away : 
 but trespass vi et armis will not -, because it is only a non-feasance and 
 not a mal-feasance {k). The declaration may state that the plaintiff 
 set out the tithes, and the defendant refused to take them away; or 
 the plaintiff may declare with a per quod the grass did not grow where 
 the tithes lay, and he could not put his cattle into the close to pasture 
 the residue of the grass, lest they should hurt the tithes ; for though 
 the proprietor of tithes does not remove them in convenient time, the 
 owner of the land cannot put in his cattle and eat them., for to permit, 
 if the corn be not removed at the day, to put in his cattle and eat all 
 the corn, would be a much greater loss to the parson than that which 
 the plaintiff hath sustained by the continuance of the corn upon the 
 land, besides that it is much more reasonable to permit the plaintiff to 
 bring an action against the parson, and so the Court to be the judge of 
 the reasonableness of the time, and that the recompence be propor- 
 
 (a) 6 Mod. n6. (1^) Atk. 83. (e) Cro. Car. 326. (J) i Ld.Raym. 73a. 
 
 (e) Com. Dig. tit. Action on the Case. (A.) (/) Ibid. (B. 6.) (g) i Ld. Raym. 
 
 373. 10 Mod. 25. I Ld. Raym. 272. 12 Mod. 233. (b) Bull. N. P. 78. (») 1 Ld. 
 
 Raym. 452. {i) 3 Burr. 189. 
 
 8
 
 528 Forcible Entry and Detainer, [Chap. XXII. 
 
 tionable to the loss sustained [a). — In such a case, the owner's remedy 
 is either by distress or action (b). 
 
 Case will not lie against a parson for not taking away his tithe, un- 
 less they have been properly set out : it is, therefore, not maintainable 
 for not taking away the tithe of hay whce it was not set out in 
 swathe {c). 
 
 A parson is not entitled to carry his tithes home by every road 
 which the farmer himself uses for the occupation of his farm. Semble 
 that he may only use such road as the farmer does for the occupation 
 of the close in which the tithes grow (^). 
 
 For other points respecting this action, we refer our readers to 
 Chap. XVII. 
 
 (a) a Ld. Rnym. 167, 9. {I) 3 T, R. 72. {c) 3 Esp. R. 31. 
 
 (/) % Bos. & Pull. N, R. 466. 
 
 CHAPTER XXII. 
 
 Of Remedies against third Persons ; tvherein of Forcible 
 Entry and Detainer. 
 
 TT'ORCIBLE entry and detainer are offences at the common law -, 
 -^ and the prosecutor, if he pleases, may proceed in that way : but 
 then the indictment ought to express, not only the common technical 
 words iv'tth force and arms ^ but also such circumstances, as that it may 
 appear upon the face of the indictment to be more than a common 
 trespass {a). 
 
 But the safest and most usual way is, to proceed upon the statutes. 
 Concerning which, it may be premised, that « they who keep posses- 
 sion with force, in lands and tenements, whereof they or their ances- 
 tors, or they whose estate they have in the same, have continued their 
 possession of the same, by three whole years next before without in- 
 terruption, shall not be endamaged by force of any of the statutes con- 
 cerning forcible entry." 8 H. 6. c. 9. s. 7. 
 
 Forcible Entry^ what. — By the 5 R. 2. c. 8. " None shall make any 
 entry into any lands or tenements (or benefice of the holy church, 15 
 jR. 2. c, 2. or other possessions, H. 6. c. 9. j-. 2.) but where entry is 
 given by the law ; and in such case, not with strong hand, nor with 
 multitude of people, but only in peaceable and easy manner, on pain 
 of imprisonment and ransom at the King's will." 
 
 Or other possessions.'] It seems clear, that no one can come within 
 the danger of these statutes, by a violence offered to another in respect 
 
 {u) 3 Buir. 1698, 1731.
 
 Forcible Entry and Detainer. 529 
 
 of a way, or such like easement, which is no possession. And there 
 seems to be no good authority, that an indictment will lie on this case 
 for a common or o^ce (a). 
 
 Not with strong hand^ nor with multitude of people 7\ It seems certain, 
 that if one, who pretends a title to lands, barely go over them, either 
 with or without a great number of attendants, armed or unarmed, in 
 his way to the church or market, or for such like purpose, without 
 doing any act, which either expressly or impliedly amounts to a claim 
 upon such lands, he caimot be said to make an entry thereinto (h). 
 
 But it seemeth, that if a person enter into another man's house or 
 ground, either with apparent violence offered to the person of any 
 other, or furnished with weapons, or company, which may offer fear ; 
 though it be but to cut or take away another man's corn, grass, or 
 other goods, or to fell or crop wood, or do any other like trespass, and 
 though he do not put the party out of his possession, yet it seemeth 
 to be a forcible entry. But if the entry were peaceable, and after such 
 entry made, they cut or take away any other man's corn, grass, wood, 
 or other goods, without apparent violence or force ; though such acts 
 are accounted a disseisin with force, yet they are not punishable as 
 forcible entries {c). 
 
 But if he enter peaceably, and then shall, by force or violence, cut 
 or take any corn, grass, or wood, or shall forcibly or wrongfully carry 
 away any other goods there being ; this seemeth to be a forcible entry 
 punishable by these statutes {d). 
 
 So also shall those be guilty of a forcible entry, who, having an 
 estate in land, by a defeasible title, continue with force in the pos- 
 session thereof, after a claim made by one who had a right of entry 
 thereto [e). 
 
 But he who barely agrees to a forcible entry made to his use, with- 
 out his knowledge or privity, shall not be adjudged to make an entry 
 within these statutes, because he no way concurred in, or promoted, 
 the force (y). 
 
 Indeed, in general, it seemeth clear, that, to denominate the entry 
 forcible, it ought to be accompanied with some circumstances of actual 
 violence or terror ; and therefore that an entry which hath no other force 
 than such as is implied by the lav/, in every trespass whatsoever, is not 
 within the statutes. 
 
 As to the matter of violence ; it seems to be agreed, that an entry 
 may "be forcible, not only in respect of a violence actually done to the 
 person of a man, as by beating him if he refuse to relinquish his pos- 
 session, but also in respect of any other kind of violence in the manner 
 of the entry, as by breaking open the doors of a house, whether any 
 person be in it or not, especially if it be a dwelling-house, and perhaps 
 
 {a) % Burn's Just, i H. P. C c. 64- «• 31- (i) Ibid. s. %Q. {c) Dak. c. 126. 
 
 (rf) Ibid. (.) I H. r. C. C.64. s. 43. (/) Ibid. s. Z4- 
 
 M m
 
 530 Forcible Entry and Detainer. [Chap. XXII. 
 
 also by an act of outrage ,affer the entry, as by carrying away' the 
 party's goods. But it seems, that an entry Is not forcible by the bare 
 drawing up a larch, or pulling back the bolt of a door, there being no 
 appearance therein of being done by strong hand or multitude of people ; 
 and It hatii been holden, that entry Into a house through a window, 
 or by opening a door with a key, is not forcible [ci). 
 
 In respect of the circumstances of terror ; It Is to be observed, that 
 wherever a man, either by his behaviour or speech, at the time of his 
 entry, givjss those who are In possession just cause to fear that he will 
 do them some bodily hurt, If they will not give way to him, his entry 
 is esteemed forcible, whether he cause such a terror by carrying with 
 him such an unusual number of attendants, or by arming himself In 
 such a manner, as plainly Intimates a design, or by actually threaten- 
 ing to kill, maim, or beat those who should continue In possession, or 
 by giving out such speeches as plainly imply a purpose of using forcCj, 
 as If one say that he will keep his possession in spite of all men, or thet 
 like(^). ,,.,,.! Vi 
 
 But it seems that no entry shall be judged forcible from any threaten- 
 ing to spoil another's goods, or to destroy his cattle, or to do him any. 
 other such like damasre, which is not personal (c). ' * 
 
 However, it is clear that it may be committed by a single peraon, as^ 
 well as by twenty {d). ,. 
 
 But, nevertheless, all those who accompany a man, when he makes 
 a forcible entry, shall be judged to enter with him, whether t|iey actu- 
 ally come upon the land or not (^). ,. i -. 
 
 Forcible Detainer , nvhat. — 1 he same circumstances of violence or ter- 
 ror which will make an entry forcible, will make a detainer forcible 
 also : and a detainer may be forcible, whether the entry were forcible 
 
 or not (y"). S-^ix*- '•• r 'I 
 
 How punishable by Action. — By stat. 8 H, 6. s, o. <^If any persdn b^ 
 put out or disseised of any lands or tenements in a forcible manner, 
 or put out peaceably, and after holden out with strong hand : the 
 party grieved shall have assize of novel disseisin, or writ of trespass 
 against the disseisor ; and If he recovers he shall have treble damages, 
 and the defendant moreover shall make fine and ransom to the king." 
 
 The Party aggrieved shall have Assize, ^<:.] But this action being at 
 the suit of the party, and only for the right, Is only where the entry of 
 the defendant was not lawful; for if a man entereth with force, where 
 his entry Is lawful, he shall not be punished by way of action; but 
 yet he may be Indicted upon the statute, for the indictment is for the 
 force and for the king, and he shall make fine to the king, although 
 his right is never so good [g). 
 
 Treble Damages.'] And this he shall recover as well for the mesne 
 
 (,;) I H. p. C. c. 64. I. 26. (l>) Il.id. S.27. (c) Ibid. a8. (J) Il)id. 29. 
 
 (^) Ibid. 5.21, (/) Ibid. 5. 30. (g) a burn's Just. Dalt. c. 129.
 
 Forcible Entry and Detainer. 33 1 
 
 occupation as for the first entry ; and albeit he shall recover treble da- 
 mages, yet he shall recover costs, which sliall be trebled also ; for the 
 word damages includeth costs of suit (a). 
 
 Hoiv punishable at the Sessions. — The party grieved, if he will lose the 
 benefit of his treble damages and costs, may be aided and have the as- 
 sistance of the justices at the general sessions, by way of indictment, 
 on the statute of 8 H. 6. which being found there, he shall be restored 
 to his possession, by a writ of restitution granted out of the same Court 
 to the sheriff (^). 
 
 In the caption of which indictment, it will be sufficient to say, 
 ** justices assigned to keep the peace of our lord the hitig" without shewing 
 that they have authority to hear and determine felonies and trespasses ; 
 for the statute enables all justices of the peace, as such, to take such 
 indictments (c). 
 
 The tenement in which the force was made, must be described with 
 convenient certainty; and the indictment must set forth that the de- 
 fendant actually entered, and ousted the party grieved, and continueth 
 his possession at the time of finding the indictment ; otherwise he 
 cannot have restitution, because it doth not appear that he needeth 
 it [d). But if a man's wife, children, or servants, do continue in the 
 house or upon the land, he is not ousted of his possession, but his 
 cattle being upon the ground do not preserve his possession {e). 
 
 A repugnancy in setting forth the offence in an indictment upon any 
 of the statutes, is an incurable fault {f). 
 
 An indictment for forcible entry was quashed therefore for not set- 
 ting forth that the party was seised or disseised, or what estate he had 
 in the tenement ; for if he had only a term for years, then the entry 
 must be laid into the freehold of A. in the possession of B. (g). 
 
 Hoiv punishable by a Justice. — By 8 H, 6. c. 9. for a more speedy re- 
 medy, the party grieved may complain to any one justice, or to a mayor, 
 sheriff, or bailiff within their liberties. But although one justice alone 
 may proceed in such cases, yet it may be adviseable for him, if the 
 time for viewing the force will suffer it, to take to his assistance one 
 or two more justices. 
 
 Concerning which power of one justice it is enacted as follows : 
 « After complaint made to such justice, by the party grieved, of a 
 forcible entry made into lands, tenements, or other possessions, or 
 forcibly holding thereof, he shall, within a convenient time, at the 
 costs of the party grieved, (without any examining or standing upon 
 the right or title of either party,) take sufficient power of the county, 
 and go to the place where the force is made." i^ R. 2. c. 2. B H, 
 6. c. 9. J-. 2. {h), 
 
 (a) I Inst. 257. {b) Dalt. c. 139. {c) i H. P. C. c. 64. s. 36. 
 
 {d) Ibid, s, 37. 41. (*) Dalt. c. 132. (/) I H. P. C. c. 64. ^- 39- 
 
 {g) 3 Salk. 169. 3 Burr. 1732. (A) Dalt. c. 44. 
 
 M m 2
 
 532 Forcible Entry and Detainer. [Chap. XXI T. 
 
 Complaint ^ the Party grieved.'] Yet these words do not in- 
 
 force any necessity of such a complaint •, for it is holden, that the 
 justice may and ought to proceed, upon any information or knowledge 
 thereof whatsoever, though no complaint at all be brought unto him, 
 by any party grieved thereby (a). 
 
 Ponver of the'Couf^ty.'] All people of the county, as well the sherifT 
 as others, shall be attendant on the justices, to arrest the offenders, 
 on pain of imprisonment and fine to the king. 15 R. 2. c. 2. 
 
 And if the doors be shut, and they within the house shall deny 
 the justice to enter, it seems he may break open the house to remove 
 the force (^). 
 
 And if after such entry made, the justice " shall find such force, 
 he shall cause the offenders to be arrested." 15 i?. 2. c, 2. 8 H. 6. 
 
 c. 9. X. 2. 
 
 He shall also take away their weapons and armour, and cause them 
 to be appraised, and after to be answered to the king as forfeited, or 
 the value thereof (c). 
 
 Also such justice ought to " make a record of such force by him 
 viewed ;" which record shall be a sufficient conviction of the offenders, 
 and the parties shall not be allowed to traverse it ; and this record, 
 beinp- made out of the sessions by a particular justice, may be kept 
 by him ; or he may make it indented, and certify the one part into 
 the King's Bench, or leave it with the Clerk of the Peace ; and the 
 other part he may keep himself. For this view of the force by the 
 justice, being a judge of record, maketh his record thereof, in the 
 judgment of the law, as strong and effectual as if the offenders had 
 confessed the force before him : and touching the restraining of tra- 
 verse, more effectual than if the force had been found by a jury, 
 upon the evidence of others. (This is, as to the fine and imprison- 
 ment, but not as to restitution.) 15 i?. 2. c. 2. [d). 
 
 Shall be put in the next Gaol. — The offenders being arrested (as before 
 said), shall be put in the next gaol, there to abide convict by the 
 record of the same justice, until they have made fine nnd ransom to 
 the king. 15 i?. 2. c. 2. 
 
 But it is said, that the justice hath no power to commit the offender 
 to gaoi, unless he do it upon his own view of the fact, and not upon 
 tho^jury finding the same afterwards {c). 
 
 ^'' And if such offenders, being in the house at the coming of the 
 justice, shall make no resistance, nor make show of any force, then 
 the justice cannot arrest or remove them at all upon such view. 
 
 If however the force be found afterwards, by the inquiry of the 
 jury, the justice may bind the offenders to keep the peace; and if 
 
 (<•) Lamb. 147. (A) Dalt. c.44- (■) H-id- ('0 "^'d » H- 1^ C. c.(56. s. S. 
 
 (r) Dah. r. 4.,, I H, p. C. 1-. 64. s. 8.
 
 Forcible Entry and Detainer. 533 
 
 they be gone, he may make his warrant to take them, and may after 
 send them to the gaol, until they have found sureties for the peace [a). 
 Ufit'tl they have made Fine.] If the justices convict a man of a for- 
 cible detainer, they ought to set the proper fine upon him. But this 
 they are not bound to do upon the spot, but they may take a reason- 
 able time to consider of the fine : for by the words of the Act, the com- 
 mitment is to be until he has paid the fine (b). 
 
 The fine must be assessed upon every offender severally, and not 
 upon them jointly; and the justice ought to estreat the fine, and to 
 send the estreat into the exchequer, that from thence the sheriff may 
 be commanded to levy it for his majesty's use. But upon payment of 
 the fine to the sheriff, or upon sureties found (by recognizance) for 
 the payment thereof, it seemeth that the justice may deliver the of- 
 fenders out of prison again at his pleasure (c). 
 
 So much concerning removing the force. But the party ousted 
 cannot be restored to his possession by the justice's view of the force, 
 nor unless the same force be found by the inquiry of a jury. 
 
 Concerning which it is enacted as follows ; " And though that the 
 persons making such entry be present, or else departed before the 
 ■coming of the justice ; he may notwithstanding, in some good town 
 Jiext the tenement so entered, or in some other convenient place by 
 his discretion (and that though he go not to see the place where the 
 force is), have power to inquire by the people of the county, as well 
 of them that make such forcible entry, as of them which hold the 
 same vyith force." 8 H, 6. c. 9. j-. 3. 
 
 In order to which, " the justice shall make his precept to the sheriff, 
 commanding him, in the king's behalf, to cause to come before him 
 sufBcient and indifferent persons, dwelling next the lands so entered, 
 to inquire of such entries; whereof every man shall have lands or 
 tenements of 40X. a year, above reprises. And the sheriff shall return 
 issues on every of them, at the day of the first precept returnable 
 205. and at the second day 40/. and on the third day 100/. and at 
 every day after double. And the sheriff making default, shall, upon 
 conviction of the said justice, or before the judge of assize, forfeit 
 20/. half to the king and half to him who shall sue, with costs ; and 
 moreover, shall make fine and ransom to the king." j-, 4, 5. 
 
 An inquisition for a forcible entry is good, although it be not stated 
 that the jurors were then and there sworn and impannelled {d). 
 
 Before the same Justice.'] The justice may proceed against the sheriff 
 for this default, either by bill at the suit of the party, or by indict- 
 ment at the suit of the king {c). 
 The defendant, if he is not present, ought to be called to answer 
 
 (<i) Dak. c. 44. a Burn's Juit. (i) a Sa-.-794. i Ld. Ruym, 1514. i Seis. Cj... i'ic. 
 („-) Dolt. c. 44- {<^) 4 Mod, 249. (0 Dalt. c. 44.
 
 534 Forcible Entry and Detainer. [Chap. XXII. 
 
 for himself; for it is implied b7 natural justice in the construction 
 of ail laws, that no one ought to suffer any prejudice hereby, without 
 having first an opportunity of defending himself {a) : and it seems to 
 be settled at this day, that if the defender tender a traverse of the 
 force, the justice ought not to make any restitution till the traverse 
 be tried (b). 
 
 The defendant may also by the 31 Eliz. c. ii. plead ^^ three years* 
 possession " whereby it is enacted, " That no restitution upon an in- 
 dictment of forcible entry, or holding with force, shall be made, if 
 the person indicted have had the occupation, or been in quiet pos- 
 session for three years together next before the indictment found, and 
 his estate therein not determined : and restitution shall stay till that 
 be tried : and if it is found against the party indicted, he shall pay 
 such costs and damages as the judges or justices shall assess; to be 
 recovered as costs and damages in judgment on other actions." 
 
 It hath been holden, that the plea of such possession is good, with- 
 out shewing under what title, or of what estate, such possession 
 was ; because it is not the title, but possession only, which is material 
 in this case (f). 
 
 It was holden in Leighton\ case, that if the defendant either traverse 
 the entry or the force, or plead that he has been three years in pos- 
 session, the justice may summon a jury for the trial of such traverse, 
 for it is impossible to determine it upon view: and if the justice have 
 no power to try it, it would be easy for any one to elude the statute 
 by the tender of such a traverse, and therefore by a necessary con- 
 struction the justice must needs have this power as incidental to what 
 is expressly given him [d): and this traverse must be tendered in 
 writing, and not by a bare denial of the fact in words ; for there- 
 upon a venire facias must be awarded, a jury returned, the issue 
 tried, a verdict found, and judgment given, and costs and damages 
 awarded ; and there must be a record, which must be in writing, to 
 do all this, and not a verbal plea. Upon which traverse tendered, 
 the justice shall cause a new jury to be returned by the sheriff, to 
 try the traverse ; which may be done the next day, but not the same 
 day (^). 
 
 It seemeth, that he who tendereth the traverse, shall bear all the 
 charges of the trial ; and not the king, or the party prosecuting. 
 
 And " if such forcible entry and detainer be found before such 
 justice, then the justice shall cause to reseise the lands and tenements 
 so entered or holden, and shall restore the party put out to the full 
 possession of the same." 8 H. 6. c. 9. J. 3. 
 
 The said Justiccl It seems to be agreed, that no other justices of 
 
 (fl) 1 H. 1'. C. c. 64. s. 60. {b) Ibid. s. 58. ,3 Salk. 169. (.) 1 H. V. C. c. 64. s. 57-
 
 Forcible Entry and Detainer, 535 
 
 the peace, except those before whom the indictment shall be found, 
 shall have any power, either at the sessions or out of it, to make any 
 award of restitution (a). 
 
 Shall cause to reseise.'] And the justice may break open the house by 
 force, to reseise the same; and so may the sheriff do, having the jus- 
 tice's warrant. 
 
 ReseiseJ] That is, shall remove the force, by putting out all such 
 offenders as shall be found in the house, or upon the lands, that en- 
 tered or held with force (b). 
 
 And shall restore the Party put out.'] And this he may do in his 
 own proper person : or he may make his warrant to the sheriff to do 
 it(r). 
 
 .And by 21 jf. c. 15, it is enacted, " That such judges, justices, or 
 justice of the peace, as may give restitution unto tenants of any estate 
 of freehold, may give the like unto tenants for term of years, tenants 
 by copy of court-roll, guardians by knight's service, tenants by elegif, 
 statute merchant and staple, of lands or tenements by them so holden, 
 "which shall be entered upon by force, or holden of them by force.'* 
 
 How punishable on a certiorari. — Although regularly the justices only^ 
 who were present at the inquiry, and when the indictment was found, 
 ought to award restitution ; yet if the record of the presentment or 
 indictment shall be certified by the justice or justices into the King's 
 Bench, or the same presentment or indictment be removed or certi- 
 fied thither by certiorari, the justices of that Court may award a writ 
 of restitution to the sheriff, to restore possession to the party expelled ; 
 for the justices of the King's Bench have a supreme authority in all 
 cases of the crown (^). 
 
 Also where upon removal of the proceedings into the King's Bench 
 the conviction shall be quashed, the Court will order restitution to the 
 party injured. As in the case of the K. v. Jones^ M. 8 G, a convic- 
 tion of forcible entry was quashed for the old exception of messuage or 
 tenement, by reason of the uncertainty, but the restitution was opposed, 
 on an affidavit that the party's title (which was by lease) was expired 
 since the conviction. But the Court said, they had no discretionary 
 power in this case, but were bound to award restitution on quashing 
 the conviction (<?). 
 
 How punishable as a Riot. — If a forcible entry or detainer shall be 
 made by three persons or more, it is also a riot, and may be proceeded 
 against as such, if no inquiry hath before been made of the force [f). 
 
 For Precedents of the Forms, see 2 Burn^s Justice, 
 
 (;?) I H. p. C. c. 64. s. 50. {b) Dalt. c. 150. {c) I H. P. C. c. 64. s. 45, 
 
 {d) Dalt. c. 44, {e) I Str. 474. (/) Dalt, c. 44,
 
 [ 53G ] 
 CHAPTER XXIII. 
 
 Of Remedies against third Persons ; wherein of Obstruc- 
 tion of a Right of Way. 
 
 AWAY, or a right of going over another man's ground has been 
 before noticed in Chap. V, Sect, II. among other incorporeal 
 hereditaments. 
 
 In such private ways a particular man may have an interest and a 
 right, though another be the owner of the soil {a). 
 
 This may be grounded on a special permission •, as when the owner 
 of the land grants to another a liberty of passing over his grounds, to 
 go to church, to market or the like 5 in which case the gift or grant 
 is particular and confined to the grantee alone ; it dies with the per- 
 son, and if the grantee quit the country he cannot assign over his 
 right to any other, nor can he justify the taking another person in his 
 company [a). 
 
 A way may also be by prescription, as if all the inhabitants of such 
 a hamlet, or all the owners and occupiers, of such a farm, have im- 
 memorially used to cross such a ground, for such a particular pur- 
 pose ; for this immemorial usage supposes an original grant, whereby 
 a right of way thus appurtenant to lands or houses may be clearly 
 created (^). 
 
 A right of way may also arise by act and operation of law ; for if 
 a man grants me a piece of ground in the middle of his field, he at 
 the same time tacitly and impliedly gives me a way to come at it ; and 
 I may cross his land for that purpose without trespass ; for when the 
 law doth give any thing to one, it giveth impliedly whatsoever is ne- 
 cessary for enjoying the same [b). Therefore when one, (even as 
 trustee) conveys land to another to v/hich there is no access but over 
 the grantor's land, a right of way passes of necessity as incidental to 
 the grant. So also, if the owner of the closes, having no way to 
 one of them but over the other, part with the latter without reserv- 
 ing the way, it should seem that it will be reserved for him by opera- 
 tion of law. So also under a grant of a free and convenient way for 
 the purpose of conveying oats, among other articles the grantee has 
 a right to lay a framed wnggon-v/ay (< ). 
 
 r-0 2 J51. Com. xs- yl') H)id. 36. (c) 8 T. R. 50. 
 
 7
 
 Chap. XXIIL] Of Obstruction of a Right cf Way. 537 
 
 Disturbance of ways principally happeneth when a person who hath 
 a right of way over another's grounds, by grant or prescription, is 
 obstructed by enclosures or other obstacles, or by ploughing across it • 
 by which means he cannot enjoy his right of way, or at least not in 
 so commodious u manner as he might have done (a). 
 
 If this be a way annexed to his estate, and the obstruction is made 
 by the tenant of the land, this brings it to another species of injury j 
 for it is then a nuisance for which an assize will lie {a). 
 
 But if the right of way, thus obstructed by the tenant, be only in 
 gross (that is, annexed to a man's person, and unconnected with any 
 lands or tenements), or if the obstruction of a way belonging to a 
 house or land is made by a stranger, it is then in either case merely a 
 disturbance : for the obstruction of a way in gross is no detriment to 
 any lands or tenements, and therefore does not fall under the legal 
 notion of a nuisance which must be laid ad nocumenttim liberi tenementi 
 and the obstruction of it by a stranger can never tend to put the right 
 of way in dispute {a). 
 
 The remedy therefore for these disturbances is not by assize or any 
 real action, but by the universal remedy of action on the case to re- 
 cover damages {b). 
 
 Case and trespass for disturbing a right of way. — A right of way 
 however, is as often contested in an action of trespass. 
 
 In an action on the case for spoiling the plaintiff's way with tl:e 
 defendant's carriages, the defendant may justify going along the way 
 with the carriages of a third person having a right to go along the 
 way (c). 
 
 But under a right of way over a close to a particular place, a man. 
 cannot justify going beyond the place. 
 
 Therefore if a defendant justify passing along a private way under 
 a right of way to a close called A. the plaintiff may reply that he went 
 beyond A [c). 
 
 So, it is not a good justification in trespass that the defendant has 
 a right of way over part of the plaintiff's land, and that he had gone 
 upon the adjoining land, because the way was impassable from being 
 overflowed by a river : for he who has the use of a thing ought to re- 
 pair it ; and in the principal case, for aught that appeared, the over- 
 flowing might have happened by the neglect of the defendant ; and it 
 did not appear that the defendant had no other road {d). — Highways, 
 however, are governed by a different principle : they are for the pub- 
 lic service, and if the usual tract is impassable, it is for the general 
 good that people should be intitled to pass in another line {e\. 
 . A man may prescribe for a way for himself and all those whose 
 
 (a) 3 Bl. Com. 341. (i) Ibid. 7,4%. (<;) Lutvv. 114. r Ld. Raym. 75. 
 
 (J) Dou;;. 745. W iT. R.570.
 
 538 OfObstructio7i of a Right of Way. [Chap. XXIII. 
 
 estate he hath, without shewing that the way is appurtenant to his 
 estate : and if he states that he was seised of two closes, and that he 
 and all those, l^c. had a right of way *' tanquam ad tencmenta spectan- 
 tem" the Court will reject these words as surplusage {a). 
 
 In trespass, where no evidence appeared to shew that a way over 
 another's land had been used by leave or favour or under a mistake of 
 an award which would not support the right of way claimed, such an 
 usage for above twenty years exercised adversely and under a claim 
 of right, is sufficient to leave it to the jury to presume a grant which 
 must have been made within twenty-six years, as all former v/ays 
 were at that time extinguished by the operation of an Inclosui^ 
 Act(^). .cf(* ^ 
 
 A claim of a prescriptive right of way from A. over the defendant's 
 close into D. is not supported by proof that a close called C. over 
 which the way once led, and which adjoins to D. was formerly pos- 
 sessed by the owner of close A. and was by him conveyed in fee to 
 another, without reserving the right of way ; for thereby it appears that 
 the prescriptive right of way does not, as claimed, extend unto D. 
 but stops short at C {c). 
 
 But where in trespass quare clausum fregit the defendant prcscribe4 
 for an occupation way from his own close *' unto, through and p\^if" 
 the locus in quo " to and unto" a certain highway, ^c. such plea may 
 be sustained, though it appeared that one out of several intervening 
 -closes was in the possession of the defendant self {d). 
 
 However, under a grant of a way from A. to B. " in, through and 
 along" a particular vi^ay, the grantee is not justified in making a trans- 
 verse road across the same {e). 
 
 Quare cbstruxit. — Another remedy which the law affords in cases of 
 a similar kind, is by writ of quare ohstrux'it. 
 
 This writ lay for him who, having a liberty to pass through his 
 neighbour's ground, could not enjoy his right, because the owner had 
 so obstructed it if^- 
 
 It lies in the nature of a writ of right close, de recto clausa^ directed 
 to the lord or bailiffs of a manor of antient demesne [g). 
 
 {a) 1 lA. Raym. 75. (b) 3 East's R. 494. (0 ^ East's R. 377. 
 
 {(Tj Ibid. 381. (cited) et vide 8 T. R. 80. {e) i T. R. 560. (/) Fleta, L. 4. c. 26. 
 (_g) F. N. B. II. J. L. Com. Dig. iji voce.
 
 [ 559 ] 
 CHAPTER XXIV. 
 
 Of Liahilitij to repair a Church, and of Right to Pews 
 
 tJierein, 
 
 /^F common right, that is, by the antient canon and civil law, the 
 ^^^parson ought to have repaired the whole church ; and it is by the 
 custom of England only that the parish repairs the body {a). 
 
 In one case the Court said, that the repairing of the church is a 
 real charge upon the land, let the owner live where he will (b). 
 
 But in a subsequent case it was holden, that the occupier of land 
 in a parish shall be rated to the repairs of the church, and not the 
 landlord living out of the parish. So, it was said, if a man take a 
 lease of a stall in a market-town where he uses once a week to sell 
 his wares, but lives in another parish, he shall not be charged to- 
 wards the repairs of the church in that market-town (c). 
 
 So, church ornaments are a personal charge upon the inhabitants, 
 and not upon those who live elsewhere, though they occupy lands in 
 that parish [d). 
 
 The paying towards the repairs of a chapel of ease will not pre- 
 vent the churchwardens from proceeding in the Spiritual Court for 
 non-payment of a rate for repairing the mother church {e). The 
 making of church-rate is a subject of ecclesiastical jurisdiction ; 
 wherefore a mandamus to the churchwardens to make such rate was 
 refused {/). 
 
 A libel was entered In the Episcopal Court at Exeter, against one 
 for not paying a church-rate at Totness. Plea that the corporation of 
 T. was bound to repair, and it appeared that this was the first rate 
 ever made. A prohibition had been moved for on the ground that 
 the plea put in issue matter of prescription. Gibbs shewed cause. 
 Lord Kenyon said, an individual may be subject to the repair of the 
 aisle, or any other part of a church, by prescription ; so com. semb. of 
 the whole church, so that the parishioners may not be rateable, and 
 so of a corporation (^). If therefore certain funds, vested in a cor- 
 poration who have always been accustomed to the repair of the 
 church, prove inadequate to that purpose, the inhabitants are not 
 com. semb. liable to a rate, but the funds must be applied as far as 
 they ^will go, and the aid of Parliament be resorted to for relief 
 
 (a) iaMod.83. 
 
 (<) i Mod, 211. 
 
 (jt) 4 Mod. 148. (d) 3 Mod. 411. 
 
 (0 Ibid. a64. 
 
 (/)5T.R.364. 
 3 
 
 ig) MSS. East's T. 30 G. 3.
 
 540 Of Liability to repair a Church, S^c. [Chap. XXIV. 
 
 'n respect ta the sum wanted ; in which case Parliament would proba- 
 bly create a rate on the parishioners, if any, and if there were none, 
 would grant a certain sum (a). 
 
 An individual may have a prescriptive right to a scat, l^c. in a 
 church which might be in respect to his house, and its inhabitants 
 even though it be situated in another parish ; and not in respEct to his 
 lands, and the sheep and horses thereon : but the right to repair a 
 part or the whole of the church, may well be in respect of lands [b). 
 A person may prescribe for a pew in the chancel of a church [c). 
 But there cannot be a gift of a pew without a faculty : and a faculty 
 to a man and his heirs is bad (d). 
 
 However, if a faculty be annexed to a messuage, it may be trans- 
 ferred with the messuage to another person {e). 
 
 A faculty may be granted even for exchanging seats in a church (e). 
 A seat in a church may be annexed to a house either by a faculty, 
 or by prescription ; and from long uninterrupted usage a faculty may 
 be presumed (/"). 
 
 It is impossible to determine h priori^ what evidence will or will not 
 be sufficient to support such a right ; it must vary in each particular 
 case. 
 
 Evidence of continued possession for thirty-six years, where the 
 pew was claimed as appurtenant to a messuage, was deemed good 
 presumptive evidence of a faculty (g). 
 
 So, uninterrupted possession of a pew in the chancel for twenty- 
 eight years, unexplained, is presumptive evidence of a prescriptive 
 right to the pew, in an action against a wrong-doer : which presump- 
 tion however, may be rebutted by proof that prior to that time the 
 pew had no existence {hi). 
 
 So in an action for disturbing plaintiff's enjoyment of a pew 
 claimed in right of a messuage, an old entry in the vestry book signed 
 by the churchwardens stating that the pew had been repaired by the 
 then owner of the messuage, (under whom the plaintiff claimed,) in 
 consideration of his using it, is admissible evidence to prove the 
 plaimifF's right to the pew (i). 
 
 But possession alone of a pew in a church, though for above sixty 
 years, was, in an antecedent case, holden not to be a sufficient title 
 to maintain an action on the case even against a wrong-doer, for dis- 
 turbance in the enjoyment of it : but that the plaintiff must prove 
 cither a prescriptive right or a faculty, and should claim it in his de- 
 claration as appurtenant to a messuage in the parish. For bare pos- 
 session can never give a right ; because every parishioner lias a right 
 to go into the church : and therefore it was the plaintiff's own fault 
 
 (a) Cro. Eli/.. 659. Noic. — There io notliing intliiGCr.c lli.it supports the above Fiopositioii. 
 (4) Cro. Jac. 366. (<,) 5 T.R. 297. (</) i T. K.4JI. n. (.j). 432- (.) 'I'iJ- 4.3i- 
 (/) 5 T. R. 297. {g) I T. R. -t u. n (.>). (/.) 3 T. R. 297. (0 3 f-""'!'- 2J"'
 
 Of Liability to repair a Church, <^c. 541 
 
 if he did not gain, to himself a complete title to a pew, which he 
 might do either by applying to the ordinary for a faculty, or to the 
 minister or churchwardens to allot him a seat in the church. If bare 
 possession were allowed to be a sufRcient title, it would be an en- 
 couragement to commit disorders in the church ; for disputes would 
 frequently arise respecting the possession {a). 
 
 Note. — Trespass will not lie for entering into a pew, because the 
 plaintiff has not the exclusive possession ; the possession of the church 
 being in the parson ; wherefore in case for such disturbance, a right 
 by prescription or faculty must be proved [n). 
 
 But though the possession of the church is in the parson, (for the 
 whole church and church-yard are the rector's freehold,) yet, where a 
 rector was cited in the episcopal consistorial court to shew cause why 
 the ordinary should not grant to a parishioner a faculty for stopping 
 up a window in a church, against which it was proposed to erect a 
 monument, to the grant of which the rector dissented, notwithstand- 
 ing which the court below were proceeding to grant the faculty with 
 the consent of the ordinary j it was held to be no ground for a prohi- 
 bition : but mere matter of appeal if the rector's reasons for dissent- 
 ing were improperly over-ruled ; for as yet, no common law right 
 was touched which called upon the Court to prohibit the ecclesiastical 
 court from proceeding to grant a faculty ; which faculty was no more 
 than a licence from the ordinary himself to do the act proposed, and 
 would not bind the rector against his consent, if by law his consent 
 were material (3). 
 
 (a) I T. R. 430. {h) 3 East's R. ai;.
 
 [ 543 ] 
 
 APPENDIX. 
 
 PRECEDENTS OF AGREEMENTS, &c. 
 
 Agreement for granting a Lease of a House 
 and Field, 
 
 lY/fEMORANDUM of an agreement entered into this 
 "^^-*- day of 1804, between A. B., of of 
 
 the one part, and C. D. of of the other part, where- 
 by the said A. B. agrees by indenture to be executed on 
 or before Michaelmas day next, to demise and let to the 
 said C. D. z messuage or tenement, with the garden and 
 appurtenances thereto belonging, situate, lying, and being 
 in in the parish of in the county of now 
 
 or late in the occupation of together with all that 
 
 field or close, situate, lying, and being in aforesaid, 
 
 called or known by the name of now or late in the 
 
 occupation of to hold to the said C. D. his execu- 
 
 tors, administrators, and assigns, from Michaelmas day 
 aforesaid for and during the term of years, 
 
 at or under the clear yearly rent of pounds, payable 
 
 half-yearly, clear of all taxes and deductions except the 
 land tax. In which lease there shall be contained cove- 
 nants on the part of the said C. D. his executors, admi- 
 nistrators, and assigns, to pay the rent, and to pay all taxes, 
 rates, and assessments (except the land tax), to repair 
 the premises (except damages by fire), to deliver the same 
 up at the end of the term in good repair (except as last 
 aforesaid), with all other usual and reasonable covenants, 
 and a proviso for the re-entry of the said C. D. his heirs 
 or assigns, in case of non-payment of the rent for the 
 space of days after either of the said rent days, or 
 
 the non-performance of the covenants, — And there shall 
 also be contained a covenant on the part of the said A. B. 
 his heirs and assigns, for quiet enjoyment. And the said
 
 544 Precedents of Agreements. 
 
 C. D. hereby agrees to accept of the said lease on the 
 terms aforesaid. — And it is mutually agreed that the costs 
 of this agreement, and of making the said lease and a 
 counterpart thereof, shall be borne by the said parties 
 equally. 
 
 In witness, ^c. 
 
 Agreement for granting a Farming Lease. 
 
 ']\/f EMOR ANDUM of an agreement made this 
 -*-*-*- day of in the year between A. B. l^c. 
 
 of the one part, and C. D. ^c. of the other part, where- 
 by it is agreed, that the said A, B. shall, on or before the 
 25th day of March now next ensuing, make and execute 
 unto the said C. D. his executors, administrators, and as- 
 signs, a good and valid lease of all that messuage, ^c. and 
 all those several closes, pieces, or parcels of land, l^c. 
 with the appurtenances thereunto belonging, for the term 
 of years, from the said 25 th day of March, at the 
 
 At a yearly rent, yearly rent of pounds, payable half-yearly clear of 
 
 all deductions for taxes, or any other accourtt whatsoever 
 (except the land tax), the first payment of the said rent to 
 be made at Michaelmas day next, and at or under the fur- 
 And a further ther yearly rent of 5/. for every acre, and so in proportion 
 douehlng.*^'^^ °^ ^^"^ ^ ^^^^ quantity, of meadow or pasture ground which 
 shall be ploughed or converted into tillage contrary to a 
 « covenant to be contained in the said lease, as hereinafter 
 directed : the first payment of the last-mentioned rent to 
 be made on the first half-yearly rent day after such plough- 
 The lease to con- ing and conversion into tillage as aforesaid; and in the 
 on"thr prt ^of ^^^^ ^^^^^ ^^^^^ shall be contained covenants on the part 
 the tenant. of the Said C. D. his cxecutors, administrators, and as- 
 tTxe^^ ''"^ ^"'^ ^'Sns, to pay the aforesaid rents, and to pay all taxes, 
 rates, and assessments (except the land tax), — for doing 
 For repairing all manucr of repairs to the said buildinjrs, hetlees, ditches, 
 
 (landlold find- „ -I J .1. r , i • , ^ -r. , . •, . . 
 
 ins timber, &:c.) ^^"^» ^"^ ^^^^^ fcuccs (the Said A. B. his hcirs or assigns, 
 providing upon the premises, or within miles thereof, 
 rough timber, bricks, tiles, and lime, for the doing tliere- 
 of, to be conveyed by the said C. D. his executors, ad- 
 For permission ministrators, or assigns).— -For permission for the said 
 repairs. ^- ^- ^"^ hcirs or assigus, at all seasonable times, to view 
 
 Not to plough the state of repairs. — ^That the said C. D. his executors, 
 men ow. administrators, or assigns, shall not plough or convert in- 
 
 to tillage any of the closes of meadow or pasture ground 
 without the licence of the said A. B. his heirs or assigns,
 
 Precedents of Agreemenls. 545 
 
 in writing first obtained. — That the said C. D. his execu- Not to carry off 
 , tors or administratorsj shall not carry off from the farm ^"J'i"'*^^. 
 any hay, straw, or other fodder, and that the said C. D. 
 his executors, administrators, or assigns, shall spread on To spread dung 
 some part of the said lands in an husbandlike manner, all °" ^'^^ P'^^"^'-'" 
 the dung, manure, and compost, which shall arise from 
 the said farm, and shall in all respects manage and culti- And manage 
 vate the same in an husbandlike manner, and according f "I'; '" ^" ^^^' 
 
 ' _ " bandlike man- 
 
 to the usual course of husbandry used in the neighbour- ner. 
 hood, and shall leave all the dung, manure, and compost To leave dung 
 of the last year, for the use of the landlord or succeeding °^ ''^^' ^^^^' 
 tenants. — That the said C. D. his executors, administra- 
 tors, or assigns, shall not cut or plash any of the quick Not to cut hedges 
 liedges under years growth, and shall cut or plash ^^^^^xh. 
 
 those at seasonable times in the year, and at the time of 
 doing thereof shall cleanse the ditches adjoining thereto, 1> cleanse 
 and guard and preserve the hedges, which shall be so cut 
 and plashed as aforesaid, from destruction or injury by 
 cattle, and shall also at all times guard and preserve all 
 young hedges and young trees from the like destruction 
 or injury. — That the said C. D. his executors, administra- To prepare fal- 
 tors, or assigns, shall, in the summer immediately prece- ^^^^ oTthe^tem 
 ding the determination of the said term to be granted as for a crop. 
 aforesaid, prepare for seed in an husbandiike manner such 
 part of the land as shall be in a course of fallow and fit 
 to be sown with a crop the ensuing season, and lay down 
 with clover-seed and rye-grass . acres of the arable To lay down 
 
 land which shall be then in tillage, sowing upon each l^^^ ^^^^ 
 acre thereof pounds of the best clover-seed and 
 bushels of the best rye grass seed. And in the said lease And to contain 
 there shall be contained a proviso for re-entry by the said entry!"^° 
 </f . B. his heirs or assigns, in case of non-payment of rent 
 for the space of days, or non-performance of the 
 
 covenants, or in case the said C. D. his executors, admi- 
 nistrators, or assigns, shall assign, under-let, or other- 
 wise dispose of the said premises, or any part thereof, or 
 do commit or suffer any act or deed whereby, or by means 
 whereof the said premises, or any part thereof, shall be 
 assigned, under-let, or disposed of, without the consent 
 in writing of the said A. B. his heirs or assigns, first ob- 
 tained.— And there shall be contained covenants on the And covenants 
 part of the said A. B. his heirs and assigns, for quiet en- °a" dbrKrViet 
 joyment. — ^That the said A. B. his heirs or assigns, shall, enjoyment. 
 upon days notice, provide and allow to the eaid C. D. To provide tim- 
 
 , r ^ , . . , . ,1 ber, &c. for re- 
 
 his executors, admmistrators, and assigns, upon the pre- p^j^^ 
 
 N n
 
 •546 Precedents of Agreements. 
 
 mises, or within miles thereof, all such rough timber, 
 bricks, tiles, and lime, as shall be necessary for the re- 
 pair of the premises : the said materials to be conveyed 
 at the expense of the said C. D. his executors, admi- 
 To permit te- nistrators, and assigns. — That the said J. B. his heirs 
 
 Hants to have . i • i i-v 
 
 the use of the and assigns, shall permit the said C. D. his executors, 
 *'*j"'f u "^'^^ administrators, or assigns, to have the use of the great 
 
 end of the term. fa ' _ e> 
 
 barn, the stable for four horses adjoining, and the stack- 
 yard and farm-yard, until after the expiration 
 or determination of the said term, for the convenience 
 of thrashing out the last year's crops of corn and grain, 
 and feeding his or their cattle vi^ith the straw and fod- 
 der, so that the same may be made into manure to be 
 left on the said premises as aforesaid ; and also some 
 convenient room in the farm-house for his or their 
 servants to lodge and diet in, until the time aforesaid, 
 without any recompence being made for the same re- 
 spectively. 
 
 In witness, &c. 
 
 Agreement Jbr Lodgings. 
 
 MEMORANDUM of an agreement entered into this 
 day of 1 804, by and between E. F. of, 
 
 iffc. and G. H. of, ^c. whereby the said E. F. agrees to 
 let, and the said G. H. agrees to take, the rooms or apart- 
 ments following : that is to say, an entire first floor, and 
 one room in the attic story or garrets, and a back kitchen 
 and cellar opposite, with the use of the yard for drying 
 linen, or beating carpets or clothes, being part of a house 
 and premises in v/hich the said E. F. now resides, situate 
 and being in To have and to hold the said rooms or 
 
 apartments, and the use of the said yard as aforesaid, for 
 and during the term of half a year, to commence from 
 next after the date hereof, at and for the yearly rent of 
 pounds of lawful money of Great Britain, payable 
 quarterly, by even and equal portions ; the first quarterly 
 payment to be made on next ensuing the date hereof : 
 and it is further agreed, that at the expiration of the said 
 term of half a year, the said G. H. may hold, occupy, 
 and enjoy the said rooms or apartments, and have the use 
 of the said yard as aforesaid, from quarter to quarter, for 
 so long a time as the said G. H. and E, F. may and shall 
 agree, at the rent of for each quarter, and that each 
 
 party be at liberty to quit possession, on giving to the other
 
 Preceden/s of Agreements. 547 
 
 ■s. quarter's notice in writing or warning. And it is also 
 further agreed between the said parties, that when the 
 said G. H. shall quit the premises, he shall leave them in 
 as good condition and repair as they shall be in on his 
 taking possession thereof, reasonable wear excepted. 
 As witness, i^c 
 
 An Agreement to let a ready furnished Lodging. 
 
 "jVjTEMORANDUM of an agreement entered into thi;^, 
 ^ day of in the year of our Lord by and be- 
 tween J. K. of ^c. of the one part, and L. M. of ^c. of 
 the other part, by which the said J. K. agrees to let to 
 the said L. M. a room or apartment up pair of 
 
 stairs forwards in his the said J. K's house, situate in 
 street, in the parish and county aforesaid, ready 
 furnished ; together with the use and attendance of 
 his servant, in common with the other lodgers, at 
 
 such hours and times when he himself can spare And 
 
 also the use of a cellar, at the rent of pounds of 
 
 lawful money of Great Britain per quarter. And the said 
 L. M. agrees to take the said room or apartment, with 
 the use of the servant and cellar as aforesaid, at the rent 
 aforesaid, and also to find and provide for himself, all 
 manner of Hnen and china or crockery ware whatsoever, 
 that he shall have occasion for, and that if he shall break 
 or damage any part of the furniture of the said J. K. he 
 will make good or repair the same, or pay her sufficient 
 to enable her to put the same in the same plight and con- 
 dition as they now are in. And it is further agreed, that 
 if either party shall quit or leave the premises, he or she 
 shall respectively give or take a quarter's notice or warn- 
 ing. 
 
 As witness, ^c. 
 
 A Lease for Years of a House and Lands in tJie 
 Countrij xvith an Ea:ception of Trees, and Special 
 Covenants. 
 
 rpHlS INDENTURE made the day of in the 
 
 -■- year of our Lord and in the year of the 
 
 reign of our Sovereign Lord George the Third, between 
 A. A. of the one part, and B. B. of the other part, ivit- The parties. 
 nessethy that for and in consideration of the rents, cove- The considera- 
 nants, provisoes, and agreements hereinafter reserved and ^'°"' 
 
 N n 2
 
 The demise. 
 
 The parcels. 
 
 More parcels. 
 
 148 Precedents of Leases. 
 
 contained, and which on the part and behalf of the saicf 
 B. B. his executors, administrators, and assigns, are io 
 be paid, done, and performed, he the said A. A. hath de- 
 mised, granted, and to farm letten, and by these presents 
 doth demise, grant, and to farm let unto the said B. B. 
 his executors, administrators, and assigns, all that mes- 
 suage, tenement, or farm-house, late in the possession of 
 E. B. and those two cottages or tenements, now or late in 
 the possession of F, F. and G. G. or their assigns, with 
 the appurtenances, situate, standing, and being in the pa^ 
 rish of C. and H. or one of them, in the said county of 
 General words. D. together with all and singular the yards, gardens, or- 
 chards, backsides, barns, stables, out-houses, edifices, and 
 buildings thereunto belonging-, and also all those several 
 closes, pieces, or parcels of arable land, meadow, pas- 
 ture, wood, and wood ground, containing by estimation 
 acres (be they more or less), lying and being in se- 
 veral parishes, fields, precincts, and territories of C. and 
 H. or one of them, in the said county of D. to the said 
 messuage, tenement, or farm-house belonging, and there- 
 with held, used, occupied, and enjoyed, as part and par- 
 cel thereof {except, and always reserved out of this present 
 lease, unto the said A. A. his heirs and assigns, all timber 
 and timber-like trees, and all other trees whatsoever, but 
 the fruit trees for their fruit only, and the pollard trees 
 for their lops and tops only, which now are, or at any 
 time or times hereafter shall be standing, growing, and 
 being in, upon, and about the said leased premises, or 
 any part thereof, with free liberty of ingress, egress, 
 and regress, to and for the said A. A. his heirs * and as- 
 signs, servants and workmen, from time to time, and at 
 all times during the term hereby leased, the same to fell^ 
 stock up, cut down, hew, and carry av/ay, in and through 
 the said leased premises, or any part thereof, doing no 
 wilful hurt or damage to the grain and grass of the said 
 B. B. his executors, administrators, and assigns, and also 
 
 Exception of 
 trees, &c. 
 
 With ingress, &c 
 for the lessor, itc 
 
 • Where the leuor has the freeliold^ make the exception^ reiervation, &c. to 
 him, his heirs and assigns, and not heirs, executors, administrators, and assigns, 
 so he may covenant for himself, his heirs and assigns, and in is sufficient ; exf- 
 f«<ori, and administrators arc superfluous; they arc his assigns in law of course, 
 but have nothing to do witli the freehold as such: but where the lessor has not 
 the freehold, then make the ixception, reservation. Sec. to him, his exectstors, 
 administrators, and assigns, and the covenants from him, his executors, admini- 
 strators, and assigns; though here it is usual to m.nke him covenant for him- 
 lelf, his heirs, executors, adminiArators, and assigns, tliat ht, his executors, ad- 
 ministrators, and assigns, shalJ and will, i«:c. in which case the heir will be 
 bound.
 
 Precedents of Leases. 549 
 
 except to the said A. A. his heirs and assigns, at all time Ai.d liberty to 
 during the term hereby leased, free liberty to enter into, ^"•''•^> ''■''^• 
 and upon the said premises, and every part thereof, to 
 view the condition of the repairs thereof) to have and to Habendum. 
 hold the said messuage, tenement, or farm-house, closes, 
 pieces or parcels of arable land, meadow, pasture ground, 
 and premises, with their and every of their appurte- 
 nances, (except as before excepted) unto the said B. B. 
 his executors, administrators, and assigns, from the feast 
 of next ensuing the date hereof, for and during 
 
 and unto the full end and term of years, thence next 
 ensuing, and fully to be complete and ended, yielding and 
 paying therefore yearly, and every year during the said Reddendum. 
 term, unto the said A. A. his heirs or assigns, at or 
 in his now dwelling-house, situate, iffc. the yearly 
 rent or sum of /. of lawful iftoney of Great 
 
 Britain, at the two most usual feasts or days of payment 
 in the year, that is to say, the feasts of and 
 
 in every year, the first payment thereof to 
 begin and be made on the feast day of next ensu- 
 
 ing the date hereof, and also yielding and paying thereof 
 yearly, and every year during the said term, unto the For years. 
 said A. A. his heirs and assigns, at or in his now dwell- 
 ing-house, situate, ^c. the yearly rent or sum of /. Paying at the 
 of lawful money of Great Britain at the two most usual 1"^°/'^ ^'''^^^' 
 
 •. . ing-house a 
 
 feasts or days of payment m the year, that is to say, the certain rent. 
 feasts of and in every year, the first 
 
 payment thereof to begin and be made on the feast day 
 of next ensuing the date hereof, and also yield- ^^^j 3,^ ^j^;. 
 
 ing and paying therefore yearly, and every year during tional rent for 
 the said term, unto the said A. A. his heirs and assigns, P^°"shing. 
 on the days and place, and in manner, aforesaid, (over 
 and above the said yearly rent of /. hereinbefore 
 
 reserved,) for every acre of meadow or pasture ground 
 hereby leased, that the said B. B. his executors, admini- 
 strators or assigns, shall plough, dig up, or convert into 
 tillage, the sum of /. of like money, and so pro- 
 
 portionably after that rate, for every greater or less quan- 
 tity than an acre, the first payment of the said /. per 
 acre to be made on the first day of the said feasts, which 
 shall next happen after the ploughing or digging up any 
 part of the same meadow or pasture ground. Provided Proviso on non- 
 alivays, nevertheless, that if it shall happen that the P^y""'" 
 said yearly rents, hereby reserved, or either of them, or 
 any taxes, levies, and assessments, which shall be rated
 
 >50 
 
 Or assignment 
 by the lessee 
 without con. 
 sent, the lessor 
 may re-enter. 
 
 The lessee 
 covenants in 
 payment of 
 rents. 
 
 And for repairs. 
 
 The landlord to 
 ft lid all rough 
 timber. 
 
 Precedents of Leases. 
 
 or assessed on the said hereby leased premises, (except 
 land-tax) shall be behind and unpaid by the space of 
 twenty-one days, next over or after either of the said 
 feasts or days of payment, whereon the same ought to 
 be paid as aforesaid, (being lawfully demanded,) or if 
 the said B. B. his executors, or administrators, shall 
 assign over, or otherwise depart with this indenture, or 
 the premises hereby leased, or any part thereof, to any 
 person or persons whatsoever, (except the said two 
 cottages,) without the consent of the said A. A. his 
 heirs and assigns, first had and obtained in writing, 
 under his or their hands and seals for that pm-pose, then, 
 and in either of the said cases, it shall and may be law- 
 ful to and for the said A. A. his heirs or assigns, into 
 the said premises hereby leased, or any part thereof in 
 the name of the whole, to re-enter, and the same to 
 have again, retain, and repossess, and enjoy, as in his 
 and their first and former estate or estates, any thing 
 herein contained to the contrary thereof, in anywise not- 
 withstanding. And the said B. B. doth hereby for him- 
 self, his heirs, executors, administrators, and assigns, 
 covenant, promise, and agree, to and with the said A. 
 A. his heirs and assigns, in manner following, (that is 
 to say,) that he the said B.B. h.\s executors, administrators, 
 and assigns, shall and will well and truly pay, or cause 
 to be paid unto the said A. A. his heirs and assigns, the 
 said yearly rent of /. and also the said rent of /. 
 
 per acre, per annum, for ploughing up any meadow, or 
 pasture, as aforesaid, at the days, times, and places, and 
 in such manner as are hereinbefore limited" and appointed 
 for payment thereof, according to the respective reserva- 
 tion thereof, and the true intent and meaning of these 
 presents. Atid also that the said B, B. his executors, 
 administrators, and assigns, shall and will, at his and 
 their own proper costs and charges, well and sufficiently 
 repair, maintain, amend, scour, cleanse, preserve, and 
 keep in repair the said messuage, tenement or farm- 
 house, and all other the houses, out-houses, edifices, 
 buildings, barns, stables, dove-houses, gates, rails, pales, 
 stiles, hedges, fences, and mounds, belonging to the 
 said hereby leased premises, from time to time during 
 this present lease, (he the said A. A. his heirs and assigns, 
 upon request and notice to them made, finding and 
 allowing on the said premises, or within four miles' 
 distance thereof, all rough timber, brick, lime, tiles, and
 
 Precedeiits of Leases* 551 
 
 all other materials whatsoever (except straw) for doing 
 thereof, to be carried to the said hereby leased premises, 
 at the charge of the said B. B. his executors, admini- 
 strators, or assigns). And the same premises, so re- 
 paired, amended, and kept in repair, as aforesaid, at the 
 end, expiration, or other sooner determination of this 
 present lease, shall and will yield up unto the said A. A. 
 his heirs or assigns. And also that the said B. B. his "^'^^ ^«"^"^ '^o- 
 
 , . ... . venants not to 
 
 neirs, executors, adnunistrators, or assigns, shall not, sow the same 
 nor will at any time during this present lease, crop, or ""^"^^ ^^^^ , 
 
 ■' or ' r' years together, 
 
 SOW, above two years together, any of the arable lands and that the 
 and closes hereby leased, but every third year permit the >«^sor may en- 
 
 •' ' J J r ter within the 
 
 same to lie fallow and unsown. Atid that it shall and term to plough 
 may be lawful, to and for the said A. A. his heirs and ''jo^fj'/j"''' 
 assigns, with servants, horses, ploughs, carts, and other 
 necessaries, at day next preceding the expiration 
 
 ^f the present lease, to enter upon such closes and 
 grounds, parcel of the said hereby leased premises, as 
 then ought to lie fallov? and unsown, and the same to 
 plough, fallow, and manure, and to have the grass, herb- 
 age, sheep walks, and sheep commons thereof, and also 
 to enter upon the dung which shall be then in the yard 
 or yards, and at the same time to have the dung in the And to have 
 dove-house, and the hen-dung in the hen-house. And 5''^ ^""S' ^"'^ 
 
 1 1 • 1 • 1 • . 1 11- 'ocigi"S tor 
 
 also to have some convenient place m the said dwelling- servants, &c. 
 house, for his and their servants to lodge and diet in, and 
 some convenient place to lay hay and chafF in, and some 
 convenient stable for their horses to stand and be in, 
 without extinguishment of any of the yearly rents herein- 
 before reserved, and without giving or making any allow- 
 ance or satisfaction for the same. And further ^ that the Tlie lessee not 
 said B. B. his executors, administrators, and assig-ns, '" J"*P°?e pf 
 
 ' ^ ' o » straw withm the 
 
 shall not at any time or times during the last two years last two years. 
 
 of the said term, sell, give away, or otherwise dispose of 
 
 any of the straw which shall be growing ami arising upon 
 
 the said leased premises, and shall not burn any straw, 
 
 except it be for the necessary singeing of his and their 
 
 hogs, for the use of their own families. And that the And to in-barn 
 
 said B. B. his executors, administrators and assigns, !^^ ""^ "^'°" 
 
 _ fci ' the premises. 
 
 shall and will lay in and in-barn all the crops of grain, 
 which shall be growing and arising upon the said hereby 
 leased premises, in every year of the said term, in the 
 barns and rick yards belonging to the said leased pre- 
 mises, and not elsewhere, and the same there thrash out, 
 and the straw and stover which shall arise therefrom and '^"^ '""'^ ^^^ 
 
 straw there.
 
 552 
 
 To sow peas, 
 
 &c. in the lattei" 
 
 years. 
 
 To preserve 
 
 pigeons. 
 
 To pay taxes, 
 fee. 
 
 Not to cut 
 hedges under a 
 certain growth, 
 &c. 
 
 And to tpeml 
 wood in the 
 
 I'.OUiC. 
 
 Precedents of Leases. 
 thereby, turn into the yard and yards, and the same feed 
 up with his or their cattle, for the better increase and 
 making of dung, and the dung and soil which shall 
 arise thereby, lay, spread and bestow upon the hereby de- 
 mised premises, in a husbandlike manner, and not else- 
 where ; and shall and will leave unto, and for the use of 
 the said A. A, his heirs or assigns, all the dung and 
 compost which shall be made on the said leased premises 
 the three last years of the said term, which shall arise 
 from the two last crops of corn and grain, for manuring 
 the premises, or otherwise to be disposed of as he the 
 said A. A. his heirs and assigns, shall think fit and conve- 
 nient; and that the said B. B. his executors, administra- 
 tors, and assigns, shall sow the three last years of this 
 present lease, one third part of the edge crop with peas 
 or vetches. And that the said B. B. his executors, admi- 
 nistrators, and assigns, shall and will, at all times, during 
 the term hereby leased, endeavour to preserve and keep 
 the dove-house, with a good flight of pigeons, dove-house 
 like, and at the end, expiration, or other sooner determi- 
 nation of the said term of years, shall and will 
 give up the same, so preserved and kept, into the hands of 
 the said A. A. his heirs and assigns. And that the said 
 B. B. his executors, administrators, and assigns, shall 
 and will, at all times during the said term of years 
 hereby leased, bear, pay, and discharge all such taxes, 
 levies, and assessments whatsoever, as shall be taxed, 
 rated, levied, or assessed upon the said hereby leased pre- 
 mises, land-tax only excepted. And that the said B. B. 
 his executors, administrators and assigns, shall not nor 
 will, at any time or times during this present lease, cut, 
 plash, or new-make any of the hedges belonging to the 
 hereby leased premises, but such as shall be of twelve 
 years' growth, and those only at seasonable times in the 
 year ; and when the closes and ground to which such 
 hedges belong shall be sown with wheat, rye, or barley, 
 on a summer's tilth, or be closes of old pasture, and 
 after the same shall have been cift, plashed, or new-made, 
 as aforesaid, the same preserve and keep from biting, or 
 destruction by cattle or otherwise, and shall and will, at 
 such cutting and plashing thereof, cleanse and scour the 
 ditches, against such hedge or hedges, where ditches have 
 been heretofore, and do lie next to any lane or highway, 
 and the oiTal wood which shall arise by the cutting or 
 plashing of such hedges, faggot and make up, and carry
 
 Precedents of Leases. 55S 
 
 unto the said leased messuage, or farm-house, there to be 
 spent by way of fire-wood, and not to be sold or disposed 
 of in any other manner whatsoever. Jtid that the said Nor to lop trees 
 
 A ji 1 • t • • !• t-11 except pollards. 
 
 A. A, his executors, administrators, and assigns, shall 
 not, nor will, at any time or times during the term here- 
 by leased, lop, top, shred, or cut, any of the trees or 
 spring wood belonging to the said leased premises, but 
 such pollard trees, and spring wood, as have been usually 
 lopped, and cut by former and other tenants, and those 
 only of twelve years' growth, and the lops which shall 
 arise and come therefrom, carry into the said hereby 
 leased messuage or farm-house, there to be spent by way The loppings to 
 of fire-bote, and not to be sold or disposed of in any houTe!" 
 other way whatsoever, and shall not, nor will at any time 
 or times during this lease, inordinately burn or waste any 
 of the fire-wood, which is so allowed to be spent by way 
 of fire-bote, as aforesaid, and shall preserve and keep the 
 said pollard trees, as also all the fruit trees, and spring 
 wood, belonging to the said hereby leased premises, from 
 all wilful or negligent waste. And the said A. A. doth The lessor co- 
 hereby for himself, his heirs, and assigns, covenant, pro- ^fj^ber for re- 
 mise, and agree, to, and with the said B. B. his execu- pahs. 
 tors, administrators, and assigns, in manner following, 
 (that is to say,) that he the said A. A. his heirs, and as- 
 signs, shall and will from time to time, and at all times 
 during this present lease, at seasonable times for cutting 
 timber, find, provide for, and allow unto the said B. B, 
 his executors, administrators, or assigns, on the said pre- 
 mises hereby leased, or within four miles distant there- 
 from, necessary rough timber, brick, lime, and tiles, and 
 all other materials whatsoever, for the repairing and 
 amending thereof (except straw), within forty days after Upon notice, 
 notice of the want thereof, and demand of the same 
 made by the said B, B. his executors, administrators or 
 assigns, the said materials to be carried to the said leased 
 premises at the expense of the said B. B. his executors, 
 i^c. And also shall and will from time to time, and at 
 all times during this present lease, allow unto the said 
 B. B. his executors, administrators or assigns, timber to 
 be had and taken off and from the said hereby leased pre- 
 mises, (if any such there be) for necessary plough-bote. And to allow 
 to be used and spent upon the said premises, and not Jn the"pr°em'isc3. 
 elsewhere, and to be set out for that purpose by the said 
 A. A. his heirs or assigns on such notice as aforesaid of 
 the want thereof j and that the said A. A, his heirs and
 
 554 
 
 And to allow 
 room for threslv 
 ing the tenant's 
 last crop for 
 straw. 
 
 And room for 
 servants. 
 
 And that the 
 lessee may en- 
 joy, &c. 
 
 Precedents of Leases, 
 
 assigns, shall and will permit and suffer the said B. B. 
 his executors, administrators, or assigns, to have the use 
 of all the barns, yards, and granaries hereby leased, for 
 the laying In, and threshing out of his or their crop of 
 ■ corn or grain, which shall be growing and arising upon 
 the premises In the last year of the said term hereby 
 leased, for the spending of the straw and stover which 
 shall arise therefrom, with horses, cows, bullocks, and 
 other cattle, until the feast of next after the end, 
 
 expiration, or other sooner determination of the said term 
 of years ; and also to have some convenient rooms In the 
 said hereby leased messuage or farm-house, for his or 
 their servants to lodge and diet In, and some convenient 
 place for his and their horses to stand and be in, and 
 some convenient place to lay hay and chaff In, until tbe 
 said feast day of next after the determination of the 
 
 said term. And lastly^ that It shall and may be lawful, 
 to and for the said B. B. his executors, administrators, 
 and assigns (paying the rent hereinbefore reserved, and 
 performing the covenants and agreements hereinbefore 
 mentioned and contained, and which on his and their 
 part and behalf, are or ought to be paid, done, and per- 
 formed) peaceably and quietly to have, hold, occupy, 
 possess and enjoy, all and singular the said hereby leased 
 premises, with the appurtenances during the said term of 
 years hereby demised, without any molestation or 
 interruption whatsoever, of or by him the said A. A. his 
 heirs or assigns, or of or by any other person or persons 
 lawfully or equitably claiming or to cla.'m, by, from, or 
 under him, them, or any of them. 
 In witness, l^c 
 
 An Indorsement for continuing a Lease for a 
 longer Term after the Expiration of ilie 
 Present. 
 
 THIS INDENTURJE, ^c between the within-named 
 A. B. of the one part, and the wIthin-named C. D. 
 of the other part, luitnessethy that for and in consideration 
 of the rent hereby reserved, and of the covenants, con- 
 ditions, and agreements respectively hereinafter con- 
 tained, which on the part and behalf of the said C. D. 
 his executors, ailministralors, aiul assigns, are to be paid, 
 done and performed, the said A. B. I.'aih demised, leased.
 
 Precedents of Leases. 555 
 
 set, and to farm let, unto the said C. D. his executors, 
 administrators and assigns, all that piece or parcel of 
 ground, with the messuage or tenement, thereon erected 
 and built, and all and singular other the premises respec- 
 tively, comprised in the within written lease, and thereby 
 demised to the said C. D. (except as therein is excepted), 
 to have atid to hold the said piece or parcel of ground, arid 
 messuage or tenement, and all and singular other the 
 premises hereby leased, set, and to farm let, or men- 
 tioned, or intended so to be (except as aforesaid), unto 
 the said C. D. his executors, administrators and assigns, 
 from the day of , which will be in the year of 
 
 our Lord , and when the said within written lease 
 
 will expire, for and during, and unto the full end and 
 term of years longer, from thence next ensuing, 
 
 and fully to be complete and ended, subject to, and under 
 the like rent, and payable in like manner, as is within 
 mentioned, for and in respect of the rent reserved, in and 
 by the said within written lease, and subject to the like 
 power of entry as well on non-payment of rent, as on the 
 happening of any of the other incidents mentioned in 
 the within written proviso or condition of re-entry, and 
 it is hereby declared and agreed, by and between the said 
 parties to these presents, that they, and their respective 
 heirs, executors, administrators and assigns shall and will, 
 by these presents, during the continuance of the addi- 
 tional term of years hereby granted, stand, and be 
 bound, for and in respect of the said hereby demised pre- 
 mises with the appurtenances, in such and the like cove- 
 nants, conditions, and agreements respectively, as they 
 the said parties and their respective heirs, executors, ad- 
 ministrators and assigns, do now stand bound in and by 
 the said within lease, for and during the now residue un- 
 expired of the within mentioned term hereby granted, it 
 being the intent and meaning thereof, that this present 
 indorsed lease, and the additional term hereby granted, 
 shall be upon such and the like footing, and all the cove- 
 nants, clauses, conditions and agreements, respectively 
 therein contained, be equally available, take place, and 
 have the like force and effect, to all intents and purposes, 
 as if every article, clause, matter and thing, contained in 
 the said within lease, were inserted and contained in this 
 present .indenture. 
 In witness, i^c.
 
 556 Precedents of Leases. 
 
 A Building Lease. 
 
 ri^HIS INDENTURE, made, Iffc. between J. B. &c. 
 -*- of the one part, and C. D. of the other part, luit- 
 nessethy that the said A. B. for and in consideration of the 
 rents, covenants and agreements, hereinafter reserved and 
 contained, by, and on the part and behalf of the said 
 C. D. his executors, administrators and assigns, to be 
 paid, done, and performed, hath demised, leased, set, and 
 to farm let, and by these presents doth demise, lease, set, 
 and to farm let, unto the said C. D. his executors, ad- 
 ministrators and assigns, all that piece or parcel of ground, 
 situate, lying and being, on, iffc. in the said parish of 
 
 containing in breadth on the north side there- 
 of and in depth on the east side thereof be 
 the same more or less, and on the west side thereof 
 east and from thence south and from thence 
 east, be the same more or less, together with the mes- 
 suages or tenements, and other the erections and build- 
 ings thereon, which the said C. D. shall have full liberty 
 to pull down, and to take to and for his own use ; which 
 said piece or parcel of ground abuts north en afore- 
 said, south on gardens to some houses on the north side 
 of belonging to the said A. B. now on lease to 
 east on buildings, ^c. and west, ^c, and is more fully 
 delineated and described in the plan or ground plot there- 
 of, in the margin of these presents, together with all 
 erections and buildings to be erected and built thereon, 
 and all ways, paths, passages, drains, water, water- 
 courses, easements, profits, commodities, and appurte- 
 nances, whatsoever, belonging, and which shall belong 
 to the said hereby demised premises, or any part or 
 parcel thereof, to have and to hold the said piece or par- 
 cel of ground, messuages, or tenements, erections, build- 
 ings, and premises hereby demised or intended so to be, 
 with their and every of their appurtenances, unto the said 
 C. D. his executors, administrators and assigns, from the 
 
 day of last past, before the date thereof, for 
 
 and during, and unto the full end and term of years, 
 
 from tlience next ensuing, and fully to be complete and 
 ended, yielding and paying therefore for the first year of 
 the said term hereby demised, the rent of a pepper-corn 
 on the last day thereof, if demanded, and yielding and 
 paying therefore yearly, and every year, for and during 
 tlic remaining years of the :juid term hereby demised,
 
 Precede7Us of Leases. 557 
 
 unto the said A. B. his heirs and assigns, the yearly rent 
 or sum of /. of lawful money of the United King- 
 
 dom of Great Britain and Ireland, current in Great Britain, 
 by half yearly payments, on the and in each year, 
 by even and equal portions, the first payment thereof to 
 begin and be made on in the year of our Lord 
 
 the said several rents to be paid and payable from time to 
 time, on the several feasts aforesaid, during the said 
 term, free and clear of all rates, taxes, charges, assess- 
 ments, and payments whatsoever, taxed, charged, assess- 
 ed, or imposed upon the said hereby leased premises, or 
 any part thereof, by authority of parliament or otherwise 
 howsoever, during the term hereby granted, u^nd the 
 said C. D. for himself, his heirs, executors, administra- 
 tors, and assigns, doth covenant, promise, and agree, to 
 and with the said ^. B. his heirs and assigns, by these 
 presents, in manner following (that is to say), that the 
 said C. D. his heirs, executors, administrators, and assigns, 
 shall and will yearly, and every year during the last 
 years of the said term hereby granted, well and truly 
 pay, or cause to be paid unto the said A. B. his heirs and 
 assigns, the said yearly rent or sum of /. of lawful 
 
 money of the United Kingdom of Great Britain and 
 Ireland, current in Great Britain, on the several days and 
 times, and in the manner hereinbefore limited and ap- 
 pointed for payment thereof, without making any deduc- 
 tion or abatement thereout, for, or in respect of any 
 rates, taxes, assessments, duties, charges, or impositions 
 whatsoever, taxed, charged, assessed, or imposed upon 
 the said hereby demised premises, or any part thereof, 
 during the said term hereby granted ; all which rates, 
 taxes, assessments, duties, charges, or impositions, he 
 the said C. D. his executors, administrators, or assigns, 
 shall and will bear, pay, and discharge, and therefore, 
 and therefrom, acquit, save harmless, and keep indemni- 
 fied the said A. B. his heirs and assigns. And that he 
 the said C. D. his executors, administrators or assigns, 
 shall and will, before the expiration of the first year of 
 the term hereby granted, at his and their own proper 
 costs and charges, erect, build, complete, and in a work- 
 man-like manner finish, one or more good and substan- 
 tial brick messuages or tenements, upon some part of the 
 ground hereby demised, and shall and will lay out and 
 expend therein the sum of /. or upwards, and also 
 
 that he the said C. D. his executors, administrators and 
 
 7
 
 558 Precedents of Leases. 
 
 assigns, shall and will, from time to time, and at all 
 times, from and after the said messuage or tenement, 
 erections and buildings, on the said piece of ground here- 
 by demised, shall be respectively completed and finished, 
 during the remainder of the said term hereby granted, 
 when, where, and as often as need or occasion shall be 
 and require, at his and their own proper costs and 
 charges, well and sufficiently repair, uphold, support, 
 maintain, pave, purge, scour, cleanse, empty, amend, 
 and keep the said messuage or tenement, messuages or 
 tenements, erections and buildings, and all the walls, 
 rails, lights, pavements, grates, privies, sinks, drains, 
 and watercourses, thereunto belonging, and which shall 
 belong unto the same, in, by, and with all and all man- 
 ner of needful and necessary reparations, cleansings and 
 amendments whatsoever. And that he the said C. D. his 
 executors, administrators and assigns, shall not, nor will, 
 during the said term hereby granted, permit or suffer any 
 person or persons to use^ exercise, or carry on, in and 
 upon the said hereby demised premises, or any part 
 thereof, any trade or business which may be nauseous or 
 offensive, or grow to the annoyance, prejudice, or dis- 
 turbance of any of the other tenements of the said A. B. 
 near adjoining thereto, and the said messuage or tene- 
 ment, messuages or tenements, erections, buildings, and 
 premises, with the walls, pavements, sewers, and drains 
 belonging thereto, being in every respect so well and 
 sufficiently repaired, upheld, supported, sustained, main- 
 tained, paved, purged, scoured, cleansed, emptied, amend- 
 ed, and kept, shall and will, at the expiration, or other 
 sooner determination of the said term hereby granted, 
 peaceably and quietly leave, surrender, and yield up unto 
 the said A. B. his heirs and assigns, together with all the 
 doors, locks, keys, bolts, bars, wainscots, chimney-pieces, 
 slabs, foot-paces, windows, window-shutters, partitions, 
 dressers, shelves, pumps, water-pipes, rails, and all other 
 things which shall be any ways fixed and fastened to, and 
 shall be standing, being, and set up, in and upon the said 
 premises hereby demised, or any part thereof within the 
 last years of the said term hereby granted. And 
 
 that the said C. D. his executors, administrators, and as- 
 , signs, shall and will, at his and their own proper costs 
 and charges, from time to time sufficiently insure all and 
 every the messuages or tenements, erections and build- 
 ings, which shall be erected and built upon the said piece
 
 Precedents of Leases. 559 
 
 or parcel of ground hereby demised, or any part thereof, 
 from casualties by fire, during the then remainder of the 
 said term hereby granted, in some or one of the public 
 offices kept for that purpose, in London or Westminster i 
 and in case the said messuage or tenements, erections and 
 buildings, or any of them, or any part of any of them, 
 shall, at any time or times during the said term, be burnt 
 down, destroyed, or damaged by fire, shall and will, from 
 time to time, immediately afterwards, rebuild, or well and 
 sufficiently repair the same. And further^ that it shall and 
 may be lawful, to and for the said A. B. his heirs and 
 assigns, or any of them, with workmen or others, in his, 
 their, or any of their company, or without, to enter or 
 come into and upon the said demised premises, and every 
 part thereof, at seasonable and convenient times, in the 
 day time, as well at any time or times, during the last 
 seven years of the said term hereby granted, to make an 
 inventory or schedule of the several fixtures and things 
 then standing and being, in and upon the said hereby de- 
 mised premises, which are to be left at the end of the said 
 term, to and for the use of the said A. B. his heirs and 
 assigns, pursuant to the covenant hereinbefore in that be- 
 half contained, as also twice or oftener in every year, 
 during the said term hereby granted, to view, search, and 
 see the defects and want of reparations of the said pre- 
 mises, and all defects and want of reparations, which upon 
 every or any such view or search shall be from time to 
 time found, to give or leave notice or warning thereof in 
 writing, at or upon the said demised premises, unto, and 
 for the said C. D. his executors, administrators or assigns, 
 to repair and amend the same. And that the said C. D. 
 his executors, administrators or assigns, shall and will, 
 within three months next after every such notice or warn- 
 ing shall be given or left, at his and their own proper costs 
 and charges, well and sufficiently repair, amend, and make 
 good, all and every the defects and want of reparations, 
 whereof such notice or warning shall be so given or left 
 as aforesaid. Provided always, nevertheless, and these 
 presents are upon this condition, that if the said yearly 
 rent, or sum of /. hereby reserved, or any part thereof, 
 shall be behind and unpaid, by the space of days, 
 
 next after either of the said feasts or days of payment, 
 whereon the same ought to be paid as aforesaid (being 
 lawfully demanded), or if the said C. D. his executors, 
 administrators or assigns, shall not well and truly observe, 
 6
 
 360 Precedejits of Leases, 
 
 perform, fulfil, and keep, all and every the covenants, ar- 
 ticles, clauses, conditions, and agreements, in these pre- 
 sents expressed and contained, on his and their part and 
 behalf to be performed and kept according to the true in- 
 tent and meaning thereof, then, and from thenceforth, in 
 either of the said cases, it shall and may be lawful, to and 
 for the said A. B, his heirs and assigns, into, and upon 
 the said demised premises, or any part thereof in the name 
 of the whole, wholly to re-enter, and the same to have 
 again, retain, repossess and enjoy, and in his, and their 
 first and former estate, and the said C D. his executors, 
 administrators or assigns, and all other tenants or occu- 
 piers of the said premises, thereout, and from thence 
 utterly to expel, put out, and amove, and that from and 
 after such re-entry made, this present lease, and every 
 clause, article and thing, herein contained on the lessor's 
 part and behalf, from thenceforth to be done and per- 
 formed, shall cease, determine, and be utterly void, to all 
 intents and purposes whatsoever, any thing hereinbefore 
 contained to the contrary thereof in anywise notwithstand- 
 ing, jdnd the said A. B. for himself, his heirs, and assigns, 
 doth hereby covenant, promise, and agree, to and with 
 the said C. D. his heirs, executors, administrators, and 
 assigns, paying the said yearly rent hereby reserved, in 
 manner and form aforesaid, and observing, performing 
 and keeping, all and singular the covenants and agree- 
 ments, hereinbefore mentioned, on his and their parts and 
 behalf to be performed and kept, shall and may lawfully, 
 peaceably and quietly have, hold, occupy, possess, and 
 enjoy the said piece or parcel of ground and premises 
 hereby demised, with their and every of their appur- 
 tenances, for and during the said term of years 
 hereby granted, without any lawful let, trouble, denial 
 or interruption, of or by the said A. B. his heirs or as- 
 signs, or any other person or persons, lawfully claiming 
 or to claim, by, from, or under him, them, or any of 
 them. 
 
 In witness, ^c. 
 
 Lease of a House in a Toxvn. 
 
 rysmS INDENTURE, ^c between A. A. of b'r. of 
 
 -*■ the one part, and H. H. of, ^c. of the other part, 
 
 „ . nvitncssethy that for and in consideration of the yearly rent, 
 
 and of the covenants, provisoes and agreements, herein-
 
 Precedents of Leases. 561 
 
 after reserved and contained, by and on the part and be- 
 half of the said H. H. his executors, administrators and Demise, 
 assigns, to be paid, observed, and performed, he the said 
 A. A. hath demised and leased, and by these presents 
 doth demise and lease unto the said H. H. his executors, 
 administrators, and assigns, all that messuage or tenement 
 and dwelling-house, situate and being on the side or 
 part of street, in the parish of in the city of Premises. 
 
 Londotiy together with \_here describe the particulars of the 
 premises] ; and also all ways, passages, lights, easements. General words. 
 rooms, vaults, cellars, areas, yards, watercourses, profits, 
 conveniences, hereditaments, and appurtenances, whatso- 
 ever, to the said messuage, or premises hereby demised, 
 belonging or in any way appertaining, or reputed or known 
 to be part, parcel, or member thereof : all and singular 
 which said messuage and premises are now, or lately were, 
 in the occupation of G. G. his assignee or assigns, to have Habendum for 
 and to hold the said messuage or tenement and premises, * ^^^"' 
 with the appurtenances hereby demised, or so mentioned 
 to be unto the said H. H. his executors, administrators, 
 and assigns, from the 25th day of December last past, 
 for and during the term of twenty-one years, thence 
 next ensuing, and fully to be complete and ended, deter- Determinable at 
 minable nevertheless at the expiration of the first seven \^^^l^^^ '' °^ 
 or fourteen years thereof, upon such conditions as are 
 hereinafter mentioned : he the said H. H. his executors, 
 administrators, and assigns, yielding and paying yearly 
 and every year during the said term, unto the said A. A. 
 his executors, administrators and assigns, the yearly rent 
 or sum of pounds, of lawful money of the United ^'^ ^''^ '■^"' °^» 
 Kingdom of Great Britain and Ireland^ current in Great 
 Britaifiy the same to be paid by equal quarterly payments 
 on the respective days following: namely, on the 25th 
 day of Marchj the 24th day of "jumy the 29th day of 
 Septembery and the 25th day of December y in every year, 
 (save and except, at all times during the said term, such Exceptio;i r.s to 
 proportionable part of the said yearly rent of pounds ^'■'=- 
 as shall or may grow due during such time, as the 
 messuage or tenement hereby demised, shall without the 
 hindrance of the said H. H. his executors, ^c. be and 
 remain uninhabitable by reason of accidental fire) and to 
 be clear of all and all manner of parliamentary, parochial 
 and other taxes, assessments, rates and deductions what- 
 soever ; the first quarterly payment thereof to commence 
 and be made on the 24th day of Jtme next ensuing the 
 
 Oo
 
 562 
 
 Covenant to 
 pay rent. 
 
 And taxes (ex- 
 cept land-tax.) 
 
 Covenant that 
 
 lessee shall 
 
 paint every 3d 
 
 year. 
 
 And do other 
 
 repairs. 
 
 Power to lessor 
 to view the 
 state of the re- 
 pairs. 
 
 Precedents of Leases. 
 
 date of these presents. And the said H. H. dotli 
 hereby for himself, his executors, ^c. covenant, pro- 
 mise and agree to and with the said A. A. his execu- 
 tors, <^c. that he the said H. H. his executors, ^c, shall 
 and will yearly and every year during the continuance of 
 the said term hereby demised (save and except as afore- 
 said,) well and truly pay, or cause to be paid unto the 
 said A. A. his executors, l^c. the said yearly sum or 
 rent of pounds, of lawful money of the United 
 
 Kingdom of Great Britain and Ireland^ current in Great 
 Britain^ on the respective days, and in the manner the 
 same is hereinbefore made payable. And also shall and 
 will vv^ell and truly pay, or cause to be paid, all and all 
 manner of taxes, assessments, rates, and impositions 
 whatsoever, parliamentary, parochial or otherwise, (the 
 land-tax only excepted,) which now are, or shall at any 
 time during the continuance of the said term hereby 
 demised, be assessed, rated, or imposed on the said de- 
 mised messuage or tenement, and premises, or any part 
 thereof, or on the said yearly rent hereby reserved, or 
 any part thereof, or on the said H. H. his executors, 
 lye. on account thereof. And also that he the said H. H. 
 his executors, ^c. shall and will at his and their own 
 proper costs and charges, cause to be well and sufficiently 
 painted, all the outside wood and iron work belonging, 
 to the said messuage or tenement and premises hereby 
 demised, every third year during the continuance of the 
 said term, and at his and their like proper costs and 
 charges, shall and will at a 11 times during the continu- 
 ance of the said term, keep in a good, sufficient, and 
 tenantable state of repair, as well all and singular the 
 glass and other windows, wainscots, rooms, floors, 
 partitions, ceilings, tilings, walls, rails, fences, pave- 
 ments, gates, sinks, privies, drains, wells, and water- 
 courses, as also all and every other the parts and ap- 
 purtenances of the said messuage or tenement and pre- 
 mises hereby demised, (damage happening by casual fire 
 only excepted ;) And further, that it shall be lawful for 
 the said A. A. his executors, i^c. either alone or with 
 others, twice in every year during the said term hereby 
 granted, at such times of the year as to him or them 
 shall seem meet, to enter at seasonable times of the day 
 into and upon the said messuage or tenement and pre- 
 mises licrcby demised and every part thereof, and there 
 to view and examine the state and condition thereofa 
 6
 
 Precedents of Leases. sQg 
 
 notice of such intention to view being at all times pre- After notice. 
 viously given unto the said H. H. his executors, ^c. one 
 day at least before the same shall take place ; and in 
 case any decay or want of reparation be found on such 
 view, the said H. H. for himself, executors, Isfc. doth 
 hereby covenant, promise and agree, to and with the Covenant for 
 said A. A. his executors, ^c. to cause the same to be theTnd°of"t'he** 
 well and sufficiently repaired and amended within the "™' ^nJ to 
 space of six months after notice thereof in writing shall mises inMpair, 
 have been given to him or them for that purpose. And ^'^• 
 the said H. H. doth for himself, his executors, ^c. pro- 
 mise, covenant, and agree, to and with the said A. A. 
 his executors, b'c. that he the said H. H. his executors, 
 Cffr. at the end or earlier determination of the said term 
 hereby granted, shall and will leave and yield up unto 
 the said A. A. his executors, ^c. all and singular the 
 said messuage or tenement and premises with their ap- 
 purtenances, in such good, sufficient and tenantable 
 state of repair as aforesaid, together with all and every 
 the doors, locks, keys, bolts, bars, chimney-pieces, 
 dressers, shelves, water-pipes, and other things men- 
 tioned in an inventory or schedule, * hereunder written 
 or hereunto annexed, in as good plight and condition as 
 the same now are, (reasonable use and wear thereof and 
 casualties happening by fire only excepted:) Provided al- Proviso for les- 
 
 , , ' ,, . ... sor to re-enter. 
 
 ways, and these presents are upon this express condition, 
 that if the said yearly rent hereby reserved, or any part 
 thereof, shall be in arrears and unpaid for the space of 
 days next after any of the days whereon the same 
 is hereinbefore covenanted to be paid as aforesaid, (it 
 being first lawfully demanded,) or if the said H. H. his 
 executors, iffc. shall not well and truly observe, and 
 keep, according to their true intent and meaning, all and 
 every the covenants, clauses, provisoes and agreements by 
 him and them to be observed and kept, then and from 
 thenceforth in either of the said cases, it shall be lawful 
 for the said A. A. his executors, l^c. to re-enter into 
 and upon the said hereby demised messuage or tenement 
 and premises, or any part thereof, in the name of the 
 whole, and the same to have again, repossess, retain, 
 and enjoy, as his and their former estate, and the said 
 H. H. his executors, ^c. and all other tenants and 
 occupiers of the said premises, thereout utterly to eject 
 
 - * This inventory must he stamped. 
 Oo 2
 
 564 
 
 Covenant that 
 lessee shall 
 quietlj enjoy 
 the premises. 
 
 Free from the 
 original lease. 
 
 Covenant for 
 the renewal of 
 tlie lease. 
 
 Precedents of Leases. 
 
 and remove, and that from and after such re-entry made, 
 this lease, and every clause and thing herein contained, 
 shall determine, and be utterly void to all intents and. 
 purposes, any thing herein contained to the contrary not- 
 withstanding. And the said A. A. for himself, his exe- 
 cutors, ^c. doth covenant, promise and agree, to and 
 with the said H. H. his executors, t^c by these pre- 
 sents, in manner following, that is to say, that he the 
 said H. H. his executors, ^c. paying the rent hereby 
 reserved in manner aforesaid, and performing the cove- 
 nants and agreements herein contained and by him and 
 them to be performed, shall and lawfully may peaceably 
 and quietly hold, occupy, and enjoy the messuage or 
 tenement, and all other the premises hereby demised, 
 for and during the said term of twenty-one years hereby 
 granted, without any lawful action, suit, or interruption 
 of the said A. A. his executors, &c. or any other person 
 lawfully claiming by, from, or under him or any of 
 them ; and that freed and discharged, or otherwise by 
 the said A. A. his executors, ^c. saved harmless and 
 indemnified from the rents and covenants reserved and 
 contained in a certain indenture of lease, bearing date 
 the day of in the year of our Lord 
 
 whereby the said A. A. holdeth the said messuage or 
 tenement and premises hereby demised, from the date 
 hereof for the term of sixty-one years, and from 
 
 all claims and demands whatsoever in respect thereof. 
 And the said A. A. doth hereby further covenant, pro- 
 mise and agree to and with the said H. H, his executors^ 
 ^c. that the said A. A. his executors, ^c. shall and 
 will, before the expiration of this present lease, on the 
 request, and at the costs and charges of the said H. H. 
 his executors, ^c. grant and execute unto him and 
 them, a new and fresh lease of the messuage or tene- 
 ment, and all other the premises hereby demised, with 
 their appurtenances, for the further term of years, 
 
 to commence from the expiration of the term hereby 
 granted, the same to be at the same yearly rent, pay- 
 able in like manner, and under and subject to the like 
 covenants, provisoes and agreements, (except a covenant 
 for the renewal thereof at the end of such further term,) 
 as are contained in these presents, such new lease how- 
 ever to be granted and be valid, only on condition that 
 the said H. H. his executors, ijSc do execute a counter- 
 part thereof, and also pay unto the said A. A. his exe- 
 
 7
 
 Precedefits of Leases, 565 
 
 cutors, ^f. thq sum of pounds of lawful money, 
 
 ^c. at the time of executing the said lease, as and by 
 
 way of fine or premium for the renewal thereof, And A"d for deter- 
 
 a/so, that if the said H. H. his executors, ^c. shall be JTrel'Jn m'e at 
 
 desirous to quit the said messuage or tenement and pre- 7 or 14 years* 
 
 •■ , , . , , . . - , _ end at the les- 
 
 mises hereby demised, at the expiration of the first seven jge's option. 
 
 or the first fourteen years of the term of twenty-one 
 
 years hereby granted thereof ; and of such his or their 
 
 desire, shall give notice in writing to the said A. A. his 
 
 executors, iffc. six calendar months before the expiration 
 
 of the said first seven or fourteen years, (as the case 
 
 may be) then and in such case, (all arrears of rent being 
 
 duly paid, and the said messuage or tenement, and all 
 
 other the premises hereby demised, being in such repair 
 
 as they are hereinbefore covenanted to be maintained and 
 
 left in,) this lease and every clause and thing herein 
 
 contained, shall, at the expiration of such first seven 
 
 or first fourteen years of the said term of twenty-one 
 
 years hereby granted, (whichever be in the said notice 
 
 expressed,) determine and be utterly void to all intents 
 
 and purposes, in like manner as if the whole term of 
 
 twenty-one years had run out and expired, any thing iu 
 
 these presents contained to the contrary notwithstanding. 
 
 In witness whereof the said parties have hereunto set 
 
 their hands and seals, the day and year first above 
 
 written. 
 
 A. A. (Seal) 
 H. H. (Seal) 
 
 Sealed and delivered in the presence of 
 
 B. B. of 
 
 G. G. of 
 
 Covenant hy the Lessee not to use or assign the 
 Premises for any offensive Trade* 
 
 AND also that the said C. D. his executors, ^c, 
 shall not nor will, at any time during the continu- 
 ance of the said term hereby granted, use or carry on, 
 or sufi^er or permit to be used or carried on, in the said 
 demised messuage or tenement and premises, or assign 
 over the present indenture of lease, or set over, let or 
 assign any part of the said messuage or tenement and 
 premises, to any person or persons using or carrying on 
 the trade, business or calling of a maker of sedan or
 
 566 Precedents of Leases. 
 
 other chairs, baker, brewer, butcher, currier, distiller, 
 dyer, founder, smith, soap-boiler, school-master or 
 school-mistress, sugar baker, auctioneer, pewterer, tallow- 
 chandler or tallow-melter, working brazier, tinman, tripe- 
 boiler, pipe-maker, pipe-borer, plumber, or any other 
 noxious or offensive trade, business, or calling what- 
 soever, without the consent in writing of the said B. B. 
 his executors, S5V. first had and obtained for that pur- 
 pose, nor shall nor will, without such consent as afore- 
 said make or cause to be made any addition or alteration 
 whatever, in, upon, or about the said messuage or tene- 
 ment and premises, or any part thereof. 
 
 An Assignment of a Leasehold Interest by Deed- 
 poll indorsed on the Lease. 
 
 KNOW all men by these presents, that I the within 
 named A. B. for and in consideration of the sum 
 of five shillings of lawful money of the United Kingdoms 
 of Great Britain and Irelatidy current in Great Britain, to 
 me in hand paid by N. O. of gent, at or before 
 
 the ensealing and delivery of these presents, the receipt 
 whereof I do hereby acknowledge, have bargained, sold, 
 set over, and assign unto the said N. O. all and singular 
 the messuage, or tenement, yard, garden, coach-house, 
 stables, out-houses, and hereditaments, in and by the 
 ■within written indenture demised or mentioned so to be, 
 with their appurtenances, and also all that small garden 
 at the end of and adjoining to the aforesaid garden, with 
 the summer-house and mount which were leased or 
 agreed to be leased to me by the within named E. F. by 
 agreement between us dated the day next before the day 
 of the date hereof for twenty-one years or such other 
 term as is therein mentioned, at the yearly rent of ten 
 pounds of said lawful money of the United Kingdoms of 
 Great Britain and Irelandy current in Great Britain, pay- 
 able quarterly, that is to say, at the feasts of l^c. and 
 also all my estate, right, title, interest, term of years, 
 claim and demand whatsoever, of, into, or out of the 
 same messuage and other the premises, or any or either 
 of them or otherwise howsoever, together with the same 
 indenture and agreement and all the benefit thereof. To 
 have and to hold the said messuage or tenement, build- 
 iigs, gardens, summcr-housc, mount, and other the
 
 Notices to quit Premises, 8^c. 567 
 
 premises hereby assigned or mentioned so to be, with 
 the appurtenances, unto the said iV. O. his executors, 
 administrators, and assigns, from henceforth, for all the 
 now residue of the within mentioned term of twenty- 
 one years, and of such other term or terms as I the said 
 A. B. now have or ought to have therein respectively, 
 subject nevertheless to the rents, covenants, and agree- 
 ments in the said indenture and agreement respectively 
 reserved and contained and agreed upon, and which 
 from henceforth on the tenant's or lessee's part are or 
 ought to be paid, done and performed. 
 In witness whereof, iffc. 
 
 Forms of Notices to quit Possession of the Pre- 
 mises, Repair, &^x, 
 [They need not be stamped.] 
 
 Notice to quit by the Landlord to a Tenant from 
 year to year. 
 
 Sir, 
 T HEREBY give you notice to quit and deliver up, 
 -*- on the day of next, the possession of 
 
 the messuage or dwelling house, (or " rooms and apart- 
 ments," or " farm lands and premises") with the ap- 
 purtenances, which you now hold of me, situate in the 
 parish of in the county of 
 
 Dated the day of iS — . 
 
 Yours, ^c. 
 A. B. [the landlord.] 
 To C. D. [the tenant in possession.'] 
 
 Or (if it be doubtful who is tenant,) 
 To C. D. or whom else it may concern. 
 
 I 
 
 The like by an agent for the Landlord. 
 
 Sir, 
 DO hereby as the agent for and on behalf of your 
 landlord A. B. of give you notice to
 
 568 Notices to quit Premises, ^c. 
 
 quit and deliver up on ^c. (^as in preceding form) which 
 you now hold of the said A. B. situate Ss'c. 
 Dated l3c. 
 
 Yours, i^c, 
 
 E.F, 
 Agent for the said 
 A. B. 
 To C. D. l5c. 
 
 The like by the Landlord, where the commence- 
 ment of the tenancy is uncertain. 
 Sir, «w 
 
 T HEREBY give you notice to quit and deliver up, 
 ^ on the day of next, the possession of 
 
 the messuage or dwelling house, (or *< rooms and apart- 
 ments," or " farm lands and premises") with the appur- 
 tenances, which you now hold of me, situate in the 
 parish of in the county of provided your 
 
 tenancy originally commenced at that time of the year ; 
 or otherwise, that you quit and deliver up the possession 
 of the said messuage, l5fc. at the end of the year of your 
 tenancy which shall expire next after the end of one 
 half year from the time of your being served with this 
 notice. 
 
 Yours, ^c. 
 
 A.B. 
 To C. D. iffc. {as before.) * 
 
 Notice to quit Lodgings. 
 Sir, 
 HEREBY give you notice to quit and deliver up on 
 or before next, the rooms or apartments, and 
 
 other tenements which you now hold of me in this house 
 {as the case is.'] 
 
 Witness my hand, this day of in the year 
 To E. N. {the lodger.-] E. F. [the landlord.] 
 
 Notice to the Tenant either to quit the Premises, 
 or pay double Kent. 
 Sir, 
 I HEREBY give you notice to quit and yield up, on the 
 *■ day of next, possession of the mes- 
 
 suage with its appurtenances, lands, tenements, and
 
 Notices to quit Premises, ^c. '!>69 
 
 hereditaments which you now hold of me situate at 
 
 in the parish of and county of 
 
 in failure whereof I shall require and insist upon double 
 the value of the said premises according to the statute in 
 such case made and provided. Dated this day 
 
 of 
 To A B. [tenant.] E. N. llandlord.] 
 
 Notice to quit by the Tenant, 
 Sir, 
 J HEREBY give you notice that on day of 
 
 4 I shall quit possession of the messuage or tenement 
 and premises which I now hold of you, situate at 
 in the parish of in the county of 
 
 Dated this day of i8 — 
 
 Yours, &c. 
 To T. E. [landlord] A B. [tenant.] 
 
 Notice bj/ the Tenant to quit Lodgings. 
 Sir, 
 ri'^HIS is to give you notice that on day of 
 
 -*- next I shall quit and deliver up possession of the 
 rooms and apartments and other tenements which I now 
 hold of you in this house. 
 
 Witness my hand, this day of 1 8 — . 
 
 N. O. [lodger.] 
 
 Notice to Tenant to repair. 
 Sir, 
 "VrOU are hereby required to put in good and tenant- 
 ■^ able repair, all and singular the messuage or tene- 
 ment and premises which you now hold of me, situate 
 at, tffc. Particularly the servant's hall in the said mes- 
 suage or tenement, and the tilting or roof at the northern 
 end thereof [^j- the case may be.] 
 
 Witness my hand, this day of 
 
 To E. N. [tenant.] P. L. [landlord.] 
 
 Notice to Tenant to pay Rent. 
 Sir, 
 rpHIS is to warn you that unless you pay, or cause to 
 -*- be paid unto me, on or before the day of 
 
 next, the sum of being a year's rent
 
 570 Distress, haw made. 
 
 due on the day of for the messuage or tene- 
 
 ment and premises which you now hold of me, at the 
 yearly rent of situated, l^c. I shall claim and insist 
 
 upon such forfeiture thereof, as I may be by law entitled 
 to. 
 
 Witness my hand. 
 
 X r. Uatidlord.-] 
 To /. K. [tenant.] 
 
 How to make a Distress for Rent Arrear, and of 
 tJie Sale of the same. 
 
 '^pHE landlord himself, or any other person, as his bal- 
 
 r^y to dis?rab" ^^^' ^^ ^" authority from him in writing, may make 
 
 the distress. The warrant or authority may be in the fol- 
 lowing form : « To Mr. ^. B. my baillfF, greeting. — Dis- 
 « train the goods and chattels of C. D. (the tenant), in 
 " the house he now dwells in (or on the premises in his 
 " possession), situate In in the county of for 
 
 *' pounds, being one year's rent, due to me for the 
 
 " same at Christmas day last, and for your so doing this 
 " shall be your sufficient warrant and authority. Dated 
 « the day of 18—. « J. S." 
 
 How to make 
 distress. 
 
 Being legally authorized to distrain, you enter on the 
 premises, and make a seizure of the distress. If It be 
 made in a house, seize a chair or other piece of furniture, 
 and say, " I seize this chair. In the name of all the goods 
 " in this house, for the sum of pounds, being one 
 
 " year's rent due to me (or to J. S. the landlord) at 
 " Christmas day last, by virtue of an authority from the 
 *' said J. S. for that purpose {provided you distrain as bai- 
 
 " ¥■)." 
 
 Then take an Inventory of so many goods as you judge 
 will be sufficient to cover the rent distrained for, and al- 
 so the charges of the distress. Make a copy thereof, as 
 follows : 
 
 Tlic inventory. " An inventory * of the several goods and chattels dis- 
 " trained by me A. B. this day of in the 
 
 *' year of our Lord in the houses, out-houses, and 
 
 " lands {as the case is)^ of C. D. situate in in the 
 
 • 'i'liii iii*tntory is liable lo a %>. 6i/. stamp-duty by st.it. 37 G. 3. (. 90. j. I.
 
 Distress, how made. 571 
 
 *' county of by the authority and on the behalf of 
 
 *' J- ^' {provided you detrain as baUij[f)y for the sum of 
 <« pounds, being one year's rent due to me, or to the 
 
 -*' said y. S. (as the case is), at Christmas day last. 
 
 <* In the dwelling house, two tables, two chairs, ^c. 
 
 " In the barn, six hurdles, and so on." 
 
 At the bottom of the inventory, subscribe the following 
 notice to the tenant : 
 
 «« Mr. C. D. 
 <« Take notice, that I have this day distrained (or that The notice to 
 « as bailiff to J. S. your landlord, I have this day dis- '''' ""^"*' 
 ** trained) on the premises above-mentioned, the several 
 ** goods and chattels specified in the above inventory, for 
 ■<' the sum of pounds, being one year's rent, due to 
 
 " me (or to the said J. S.) at Christmas day last, for the 
 ^' said premises -, and that unless you pay the said rent, 
 " with the charges of distraining for the same, within 
 ** five days from the date hereof, the said goods and chat- 
 ** tels will be appraised and sold according to law. Given 
 ** tinder my hand, the day of in the year of 
 
 <« our Lord " W. T." 
 
 A true copy of the above inventory and notice must How served. 
 either be given to the tenant himself, or left at his house, 
 or, if there be no house, on the most notorious place on 
 the premises. And it is proper to have a person with you 
 when you make the distress, and also when you serve the 
 inventory and notice, to examine the same, and to attest 
 the regularity of the proceedings. 
 
 The goods may be removed immediately, and in the no- Of lemoving the 
 tice the tenant may be acquainted where they are removed ; ^°** *' 
 but it is now most usual to put a man in possession, and 
 let them remain on the premises till you are entitled by 
 law to sell them *, which is on the sixth day inclusive. When they may 
 after the distress made, i. e. goods distrained on the Satur- *°^'^' 
 day, may be removed and sold on the Thursday afternoon 
 following. Wallace v. King and another , i H, Bl. 13. 
 
 •• By the common law, a distress was merely a pledge, and could not be 
 sold : but to protect laflSords in the recovery of their rent, the statute % 
 W. & M. I. c. 5. /. a. authorizes the sale of goods distrained for rent, after 
 ■five days from the makint; of the distress.
 
 572 Distress^ how made. 
 
 How, if further If the tenant require further time for the payment of 
 
 ime require . ^j^^ ^^^^^ ^^ ^ ^^^ landlord chuses to allow it, it is best to 
 
 take a memorandum in writing from the tenant : " That 
 
 " he does consent that he should continue in possession 
 
 " of his goods and chattels in his house (or upon the pre- 
 
 " mises), for such a time longer, you having agreed not 
 
 Agreement for " to Sell them for that time, and that he will pay the ex- 
 
 that purpose. u pg^ses of keeping possession." This memorandum 
 
 prevents the landlord from being deemed a trespasser, 
 
 \vhich, after the expiration of five days, he otherwise 
 
 would be, and might have an action of trespass brought 
 
 against him for staying longer upon the premises. 
 
 How to search If there be no allowance of, or agreement for, further 
 
 pTocerd't^s'amt ^'"^^* ^^""^^^ ^^ ^^^ expiration of the five days at the she- 
 riiF's office to see if the goods have been replevied i if 
 not, and the rent and charges still remain unpaid, send 
 for a constable * and two sworn appraisers, who having 
 viewed the goods, the former must administer to the latter 
 the following oath : 
 
 Appraisers' oath. " You, and each of you, shall well and truly appraise 
 " the goods and chattels mentioned in this inventory 
 " (holding it in his hand), according to the best of your 
 " judgment. So help you God." 
 
 Then indorse on the inventory the following memo- 
 randum : 
 
 Memorandum " Memorandum ; that on the day of in the 
 
 thereof. « year of our Lord J. B. of, ^c and C. D. of, '^c. 
 
 ** two sworn appraisers, were sworn upon the Holy 
 " Evangelists, by me J. K. of, i^c. constable, well and 
 ** truly to appraise the goods and chattels mentioned in 
 " this inventory, according to the best of their judgment. 
 
 " As witness my hand, 
 " Present at the time « J. K. Constable." 
 
 " of swearing the said 
 « A. B. and C. D. as 
 " above, and witness 
 *' thereto. 
 
 « L. M. 
 
 « o. pr 
 
 ' It .'.hoiild br a constiiblc of ilic hundred, jMiih or jilacc, where such dis- 
 utib was taken, and not oJie out of the ilistrict. IVallace \. King, i H, 
 Jiltfc, 14.
 
 Distress, how made. 573 
 
 After the appraisers have valued the goods, continue 
 the indorsement .on the inventory as folio w^s : 
 
 " We, the above-named A. B. and C. D. being sworn 
 " upon the Holy Evangelists, by J. K. the constable 
 " above-named, well and truly to appraise the goods and Appraisement. 
 " chattels mentioned in this inventory, according to the 
 " best of our judgment •, and, having viewed the said 
 " goods and chattels, do appraise the same at the sum of 
 " pounds. As witness our hands the 
 
 *' day of in the year of our Lord 
 
 ' « r D i Sworn Appraisers. 
 
 When the goods are thus valued, it is usual for the ap - How disposed 
 praisers to buy them at their own valuation, and a receipt ^ ' 
 at the bottom of the inventory, witnessed by the con- 
 stable, is usually held a discharge. But if the distress be of 
 considerable value, it is much more advisable to have a 
 proper bargain and sale between the landlord, the con- 
 stable, the appraiser, and the purchaser. 
 
 The goods being disposed of, deduct the rent in arrear, 
 and all reasonable charges attending the distress, and re- 
 turn the overplus (if any) to the tenant. 
 
 If the produce is not sufficient to cover the demand, 
 you may distrain again. 
 
 Form of a TeJianfs Consent to the Landlord's 
 continuing in PussessioJi upon the Premises, 
 when he requires further Time for Payment, 
 
 T E. T. do hereby consent that A. B. my landlord, who 
 -■- on the day of distrained my goods 
 
 and chattels for rent due to him, shall continue possession 
 thereof on the premises for the space of seven days from 
 the date hereof, the said A. B. undertaking to delay the 
 sale of the said goods and chattels for that time, in order 
 to enable me to discharge the said rent. 
 
 Witness my hqnd, this day of i8 — . 
 
 . E.T.
 
 574 Precedents in Replevin. 
 
 Notice to the Sheriff' when in Possession on an 
 Ea:ecution. 
 
 F the sherifF is in possession of the tenant's goods on 
 
 an execution, the landlord need not make a distress, 
 
 but should forthwith serve him with the following notice : 
 
 To N. O. N 
 
 and ^ Esqrs. Sheriffs of Middlesex [as the case may bej. 
 E. F.) 
 
 TAKE notice, that the sum of for one year's [as 
 
 the case ?'/] rent due at last, is now due from E. N. 
 
 the person to whom the goods belong of which you arc 
 now in possession, by virtue of his Majesty's writ of 
 returnable [state the writ and return^. 
 
 As witness my hand, this day of i8 — . 
 
 Note. The man in possession of the goods, id'c. is to be 
 paid 2s. 6d. per dienty if the tenant keep him : and 3/. 6d. 
 if he keep himself. 
 
 Precedents of Pleadings in Replevin. 
 
 Writ of replevin. HPHE King, ^c. We command you that justly, and 
 
 -* without delay, you cause to be replevied the cattle 
 
 of B. which D. took and unjustly detains, as it is said, 
 
 and afterwards thereupon cause him justly to be removed, 
 
 that we may hear no more clamour thereupon for want 
 
 Plaint. of justice, ^c. 
 
 A. B. complains against C. D. in a plea of taking and 
 
 unjustly detaining his cattle against sureties and pledges, 
 
 life. (E. F. 
 
 Pledges to prosecute, 
 
 i, < and 
 
 (g.h. 
 
 No. I. 
 Declaration. ^^ ^j^.^ ^ j^ ^^^ Summoned to answer unto 
 
 A B. of a plea : wherefore the said C. D. took the goods 
 and chattels [or cattle] of the said J. B. and unjustly de- 
 tained the same against sureties and pledges, until, ^f., 
 and thereupon the said J. B. by E. F. his attorney, com-
 
 Precedents in Replevin. -575 
 
 plains that the said C. D. on the day of in the year 
 of our Lord at the parish of in the county 
 
 of in a certain dwelling-house there [or place there] 
 
 called took the goods and chattels [or cattle] : to wit, 
 
 {Jjere set out the goods, or cattle, as the case may be'] and un- 
 justly detained the same against sureties and pledges 
 until, Ifjc, wherefore the said A. B. says that he is in- 
 jured, and hath sustained damage to the value of /. 
 and therefore he brings his suit, tffr. 
 
 Trinity Term, 44 G. III. No. II. 
 
 a D.^ And the said C. D. by G. H. his attorney, ^'^^^''^""""P'"- 
 
 v. > comes and defends the wrong and injury, when, 
 A, B.J ^c. and says, that he did not take the said goods 
 and chattels [or cattle] in the said declaration mentioned, 
 or any part thereof, in manner and form as the said A. B. 
 hath above thereof complained against him ; and of this 
 he, the said C. D. puts himself upon the country, ^c. 
 
 Trinity Term, 44 G. III. No. IIL 
 
 C. D.. And the said C. D. by G. H. his attorney, t^Zlt'Z 
 V. > comes and defends the wrong and injury, when on the statute 
 A. B.J ^c. and well avows [or if a cognizance say, as ^^ ' *" '^* 
 bailiff of C. D. well acknowledges] the taking of the said 
 goods and chattels, in the said declaration mentioned in 
 the said dwelling-house, in which, Iffc. and justly, ^c; 
 because he says that the said A. B. for a long space of 
 time, to wit, for the space of next before and ending 
 
 on the day of in the year of our Lord and 
 
 from thence, until, and at the same time, when, ^c. held 
 and enjoyed the said dwelling-house, in which, ^c. with 
 the appurtenances as tenant thereof to him, the said C. D. 
 by virtue of a certain demise thereof to him, the said C. D. 
 theretofore made, at and under the yearly rent of 
 
 /. payable quarterly, on the day of 
 
 the day of the day of and the 
 
 day of in every year, by even and equal portions ; 
 
 and because /. of the rent aforesaid, for the said 
 
 space of ending as aforesaid on the said day 
 
 of in the year aforesaid, and from thence until, and 
 
 at the same time, when, l^fc. were due and in arrear from 
 the said A. B. to the said C. D. he the said C. D. well 
 awows [or as bailiff of the said well acknowledges] 
 
 the taking of the said goods and chattels, in the said 
 dwelling-house, in which, ^c. and justly, ^c. as for and
 
 576 Precedents in Replevin. 
 
 in the name of a distress for the said rent so due and in 
 arrear as aforesaid, and which said rent still remains due 
 and in arrear to him the said C. D. (or to the said G. H.) 
 and this he the said C. D. is ready to verify. Where- 
 fore he prays judgment and a return of the goods and 
 chattels, together with his damages, i^c. according to the 
 form of the statute in such case made and provided, to 
 be adjudged to him, l^c. 
 No. IV, 
 
 Plea in bar, non j^^^^ ^^it said A. B. says, that the said C. D. by reason 
 of any thmg in his said avowry [or cognizance] above 
 alleged ought not to avow [or acknowledge] the taking 
 of the said goods and chattels, in the said dwelling-house, 
 in which, l^c. and justly, i^c. Because he says, that 
 the said A. B. did not hold and enjoy the said dwelling- 
 house in which ilfc. as tenant thereof to the said C. D. 
 in manner and form as the said C. D. hath above in his 
 said avowry [or cognizance] in that behalf alleged, and 
 this he the said A. B. prays may be inquired of by the 
 country, i^c. 
 No. V. 
 
 Plea in bar, no Because he savs, that no part of the said rent in the 
 
 rent in arrear. - ' ' * . 
 
 said avowry [or cognizance] mentioned at the said time, 
 when, £fff. was due, or in arrear, to the said C. D. in 
 manner and form as the said C. D. has above in his said 
 avowry [or cognizance] in that behalf alleged ; and this 
 he prays may be inquired of by the country, l^c. 
 No. VI. 
 ^a7f7asanc.'" C. D. And the Said C. D. by G. H. his attorney, 
 V. > comes and defends the wrong and injury, when, 
 A. B,J ^c. and well avows the taking of the said cattle 
 in the said place, in which, i!fc. and justly, i^c. because 
 he says, that the said place now is, and at the said time 
 when, ^c. was the soil and freehold of him, the said 
 C. D. and because the said cattle, at the same time when, 
 ilfc. were wrongfully in the said place, in which, &"€. eat- 
 ing up and depasturing the grass there then groviang, and 
 doing damage there to the said C. D. he the said C. D. 
 well avows the taking of the said cattle in the said decla- 
 ration mentioned, in the said place, in which, ^c. and 
 justly, cff. so there doing damage as aforesaid, as for and 
 in the name of a distress for the said damage so there done 
 and doing, and this he the said C. D. is ready to verify. 
 Wherefore he prays judgment and a return of the said 
 cattle, together with his damages, ts'f. according to the
 
 Precedents in Replevin. 577 
 
 fwm of the statute in such case made and provided, to be 
 adjudged to him, ^c. 
 
 to wit, C. D, puts in his place G. H. his attorney, judgment oi non 
 
 at the suit of J. B. in a plea of taking and unjustly de- f""- fo"^ ^ant of 
 
 *_• • 1 • 11 , r ^ ■ X A T^ ' ^ declaration. 
 
 tainmg the goods and chattels of the said A. B. against 
 sureties and pledges, ^c. 
 
 to wit. C. D. was summoned to answer A. B. of 
 
 a plea, wherefore he took, &c. [the goods mentioned in the 
 plaint] of the said A. B. and unjustly detained them against 
 sureties and pledges, tfc. And hereupon the said C. D. 
 in his proper person, offers himself on the fourth day, 
 against the said A. B. in the plea aforesaid ; but the said 
 A. B. although solemnly called, comes not, but makes 
 default, nor does he further prosecute his writ against 
 the said C. D. Therefore it is considered, that the said Judgment sign- 
 A. B. take nothing by his said writ, but that he and his "^ ' '' 
 pledges to prosecute be in mercy, ^c. and that the said 
 C. D. do go thereof without day, <Jfc. and that he have 
 a return of the said goods and chattels, ^c. : It is also 
 considered by the Court here, that the said C. D. do re- 
 cover against the said A. B. 1. for his costs and 
 charges by him laid out, about his defence in this behalf, 
 by the said Court here adjudged to the said C. D. and 
 with his assent, according to the form of the statute in 
 such case made and provided : and that the said C. D. 
 have execution thereof, ^c. 
 
 to wit, A. B. puts in his place E. F. his attorney, No. viii. 
 
 against C. D. in a plea of taking and unjustly detaining -of a plea in^ar, 
 the goods and chattels of the said A, B. against sureties ^t commoji law. 
 and pledges, i^c. 
 
 to wit. The said C D. puts in his place G. H. 
 
 his attorney, at the suit of the said A. B. in the plea 
 aforesaid. 
 
 to wit. C. D. was summoned to answer unto 
 
 A. B. of a plea, ^c. [here copy the declaration and cog- 
 nizance j and proceed as follows ;] and upon this the said 
 C. D. prays that the said A. B. may plead in bar of the 
 said cognizance; and thereupon a day is given to the 
 said A. B. before our Lord the King, until where- 
 
 soever our said Lord the King shall then be in England, 
 that is to say, for him the said A. B. to plead in bar 
 of the said cognizance, i!fc. The same day is given to 
 the said C D, there, ^c. At which day, before our
 
 claration. 
 
 57s Precedents in Replevin. 
 
 said Lord the King at Westminster^ comes the said C. D, 
 by his attorney aforesaid, and offers himself against the 
 said u4. B. in the plea aforesaid ; but the said A. B. al- 
 though solemnly called, comes not, but makes default, 
 nor hath he pleaded in bar of the said cognizance, nor 
 does he further prosecute his writ against the said C. D, : 
 therefore it is considered, ^c. [as in the last]. 
 
 Wrif°of\niuiry ^^^^S^ ^^^ ^hird, iffc. to the sheriff of greeting: 
 
 on the Stat. 17 whcrcas C. D. was summoned to appear in our Court 
 upon adjudgment before US, on wheresocver we then should be in 
 
 for want of a de- England, to answcr unto A. B. of a plea wherefore he 
 took the goods and chattels of the said A. B. and unjustly 
 detained the same, against sureties and pledges, until, l^c. 
 And the said C. D. offered himself in our said Court be- 
 fore us, on the fourth day, against the said A. B. in the 
 plea aforesaid, and the said A. B. although solemnly called, 
 came not, but made default; therefore it was considered 
 by the same Court, that the said A. B. and his pledges to 
 prosecute should be in mercy, l5c. And the said C. D. 
 offered himself in our said Court before us, on the fourth 
 day, against the said A. B. in the plea aforesaid, and the 
 said A, B. although solemnly called, came not, but made 
 default ; therefore it was considered by the same Court, 
 that the said A. B. and his pledges to prosecute should 
 be in mercy, &c. and that the said C. D. should go there- 
 of without day, ^c, and have a return of the said goods 
 and chattels ; and thereupon it hath been suggested in our 
 said Court before us, by the said C. D. that he the said 
 C. D. took the said goods and chattels of the said A. B. 
 as aforesaid, at in the said county, in a certain mes- 
 
 suage or dwelling-house there, and that he took the same 
 as bailiff of E. F. for that the said A. B. for the space of 
 one year, next before and ending on the day of 
 
 in the year of our Lord and from thence until and 
 
 at the time of taking the said goods and chattels, held and 
 enjoyed the said messuage or dwelling-house and premises, 
 with the appurtenances, amongst other things, as tenant 
 thereof to the said E. F. at and under the yearly rent of 
 
 /. And because /..of the rent aforesaid, for 
 ending as aforesaid, on the said, i^c, and from thence 
 until and at the time of taking the said goods and chattels, 
 were due and in arrcar from the said A. B. to the said 
 E. F. he the said C. D. as bailiff to the said E. F. took the 
 said goods and chattels, as for and in the name of a distress
 
 Precedents in Replevin. 579 
 
 for the said rent, so due and in arrear from the said A. B. 
 to the said E. F. as aforesaid; and the said C. D. accord- 
 ing to the form of the statute in such case made and pro- 
 vided, prayed our writ to be directed to you, to inquire 
 of the arrears of the rent aforesaid, and of the value of 
 the said goods and chattels, and it was granted to him, 
 .^c. as by the record and proceedings thereof, still remain- 
 ing in our said Court before us, at Westminster aforesaid, 
 fully appears : therefore v/e command you, that accord- 
 ing to the form of the statute aforesaid, you diligently 
 inquire by the oath of twelve good and lawful men of 
 your bailiwick, how much of the yearly rent aforesaid, 
 at the time of taking and distraining the said goods and 
 chattels, was in arrear and unpaid, and how much the 
 said goods and chattels so as aforesaid taken and distrain- 
 ed were worth, according to the true value of the same, 
 and the inquisition which you shall thereupon take, make 
 appear to us on wheresoever we shall then be in 
 
 England^ under your seal, and the seals of those by whose 
 oath you shall take the said inquisition ; and have there 
 the names of them by whose oath you shall take the said 
 inquisition, and this writ. 
 
 Witness, Edward, Lord Ellenhorough, l^c. 
 
 George the Third, £5'<r. to the sheriff of greeting : Tlie like upon 
 
 whereas C. D. lately in our Court before us at Westminster. ^ J"<^g"ient for 
 was summoned to answer A. B. of a plea wherefore he bar. 
 took the goods and chattels of the said A. B, and un- 
 justly detained them against sureties and pledges, i^c. 
 whereupon the said A. B. by his attorney, complained that 
 the said C. D. theretofore, to wit, on, ^c. at, Iffc. in your 
 county, in a certain place there, called had seised 
 
 and taken the goods and chattels of the said A. B. to wit, 
 [set out the goods mentioned in the declaration] and unjustly 
 detained the same against sureties and pledges, until, £ffc. 
 And the said C. D. appearing in our said Court before us, 
 at Westminster aforesaid, by his attorney, well avowed 
 the taking of the said goods and chattels, Iffc. [here recite 
 the whole of the avowry, and proceed as follows ;] And such 
 proceedings were thereupon had in our said Court before 
 us, at Westminster aforesaid, that it was afterwards con- 
 sidered in the same Court, that the said A. B. should take 
 nothing by his writ aforesaid, but that he and his pledges 
 to prosecute should be in mercy, ^c. and that the said 
 C. D, should, go thereof without day, b'c. and have a re- 
 Pp 2
 
 580 Precedents in Replevin. 
 
 turn of the said goods and chattels ; and thereupon the 
 said C D. according to the form of the statute in such 
 case made and provided, prayed our writ, isfc. [as in the 
 last to the end.^ 
 
 \^As in No. 8, to the end of the judgment for a return f 
 and then as follows :'] 
 No. XI. And hereupon the said C. D. according to the form of 
 
 Stat! i'; c! "a! c. the statute in such case made and provided, prays the writ 
 7. of our said Lord the King, to be directed to the sheriff 
 
 of to inquire of the arrears of the rent aforesaid, 
 
 and of the value of the said goods and chattels ; and it is 
 granted to him, ^c. Therefore it is commanded to the 
 said sheriff of according to the form of the statute 
 
 aforesaid, that he diligently inquire, by the oath of twelve 
 good and lawful men of his bailiwick, how much of the 
 yearly rent aforesaid, at the time of taking and distraining 
 the said goods and chattels, was in arrear and unpaid, and 
 how much the said goods and chattels so as aforesaid taken 
 and distrained, were worth according to the value of the 
 same ; and that the inquisition which the said sheriff shall 
 thereupon take, he make appear to our said Lord the 
 King, on wheresoever our said Lord the King shall 
 
 then be in England, under his seal and the seals of those 
 by whose oath he shall take the said inquisition; together 
 with the writ of our said Lord the King to him thereupon 
 directed : the same day is given to the said C. D. ^c. At 
 which day before our said Lord the King at Westminster^ 
 comes the said C. D. by his attorney aforesaid, and the 
 sheriff of to wit now at in the said county, on 
 the day of in the year of the 
 
 reign of our said Lord the King, by the oath of twelve 
 good and lawful men of his county ; whereby it appears, 
 •that the sum of of the said yearly rent was in 
 
 arrear and unpaid, and due and owing from the said A. B. 
 to the said C. D. at the time in the said cognizance men- 
 tioned, and of the distress taken ; and that the goods and 
 chattels distrained were worth according to the value 
 tliereof the sum of /. Therefore it is considered 
 
 that the said C. D. do recover against the said A. B. the 
 said sum of /. being the arrearages of the said rent, 
 
 by the said inquisition in form aforesaid found, and also 
 /. by the Court of our said Lord the King now here 
 adjudged to the said C. D. and at his request, for his costs 
 and charges by him about his suit in this behalf sustained,
 
 Precedents in Replevin. 5^1 
 
 according ro the form of the statute in such case made 
 and provided ; which said arrearages, costs and charges, 
 in the whole amount to /. and that the said C. D. 
 
 have execution thereof, iffc. And execution. 
 
 Therefore it is considered, that the said C. D. do re- N°- ^"• 
 
 1 • 1 ^ T. 1 . • . , ^ . The like where 
 
 cover aganist the said A. B. the said /. parcel of the the goods are 
 
 rent aforesaid, by the said inquisition in form aforesaid ^°""'^ '° ^^ °^ 
 
 r J 1 1 • 1 , r 1 • , l^ss value than 
 
 round, and nis damages by reason ot the premises to /. the rem. 
 by the Court of our said Lord the King now here ad- 
 judged to the said C. D. and at his request, for his costs 
 and charges by him in this behalf sustained, according to 
 the form of the statute in such case made and provided j 
 which said value, costs and charges, in the whole, amount 
 to /. And that the said C. D, have execution there- Execution. 
 
 of, Sffr. 
 
 George the Third, ^c. to the sheriff of greeting : No. xiii. 
 
 whereas C. D. was summoned to be in our Court before on a mn pros. 
 us, to answer A. B. of a plea wherefore he took the cat- ^°'' ^^'"" °^ * 
 tie, goods and chattels, of the said A. B. and unjustly de- 
 tained them against sureties and pledges, as it is said : and 
 the said A. B. afterwards in our same Court before us 
 made default j wherefore it was considered in our same 
 Court, that he and his pledges to prosecute should be in 
 mercy, ^c. and that the said C. D. should go thereof 
 without day, ^c. and that he should have a return of the 
 said cattle, goods and chattels : therefore we command 
 you, that without delay you cause the said cattle, goods 
 and chattels, to be returned to the said C. D. and that 
 you do not deliver them on the complaint of the said A. B. 
 without our writ, which makes express mention of the 
 judgment aforesaid ; and in what manner you shall exe- 
 cute this our writ, make appear to us on whereso- 
 ever we shall then be in England ; and have there this 
 writ. Witness, Iffc. 
 
 to — — to wit. C. D. by his attorney offered Enfy thereof. 
 
 himself on the fourth day against A. B. of a plea where- 
 fore he the said C. D. took the cattle, goods and chattels, 
 of the said A. B. and unjustly detained them against 
 sureties and pledges, l^c. and the said A. B. being so- 
 lemnly called, came not : and was the plaintiff, ^c. : 
 therefore it is considered, that he and his pledges to pro- 
 secute be thereupon in mercy, ^c. and that the said C D. 
 go thereof without day, <^c. and that he have a return of
 
 582 Precedents in Replevin. 
 
 the said cattle, goods and chattels, ^c. and let the names 
 of the pledges be inquired, Sffc. and in what manner, ^r. 
 let the sheriff make appear to our Lord the King, on 
 wheresoever, is'c. 
 
 No. XIV. George the Third, Iffc. to the sheriff of greeting : 
 
 The like on a ^vhercas C. D. was summoned to be in our Court before 
 
 xaii pros. lor 
 
 want of a plea US, to answer A. B. in a plea M'herefore the said C. D. on 
 the day of in the year of our Lord at 
 
 the parish of in the county of in a certain 
 
 place there called took the cattle, goods and chat- 
 
 tels, of him the said A. B. to wit, gff^ . [here set out the 
 cattle and goods as in the declaration'] and unjustly detained 
 the same against sureties and pledges, until, ^c. as it was 
 said : and the said C. D. appearing in our said Court be- 
 fore us, for certain causes by him alleged in our same 
 Court, as bailiff of E. F. well acknowledged the taking 
 of the said cattle, goods and chattels, in the said place in 
 which, i^c. and unjustly, i^c. for damage there done, 
 [or for certain arrears of rent, to wit, for the sum of /. 
 due and in arrear from the said A. B. to the said C. D. 
 for the said place in which, ^c. with the appurtenances, 
 held and enjoyed under, and by virtue of, a certain de- 
 mise thereof, made by the said C. D. for the space of 
 next before and ending on the day of in the 
 
 year of our Lord :] whereupon the said A. B. being 
 afterwards solemnly called in our said Court before us, 
 came not, nor did he further prosecute his writ aforesaid: 
 wherefore it was considered in our said Court before us, 
 at Westminster^ that the said A. B. should take nothing 
 by his writ aforesaid, but that he and his pledges to pro- 
 secute should be in mercy, i^c. and that the said C. D. 
 should go thereof without day, £ffr. and that he should 
 have a return of the said cattle, goods and chattels : there- 
 fore we command you, that without delay you cause the 
 said cattle, goods and chattels, to be returned to the said 
 C. D. and that you do not deliver them on the complaint 
 of the said A. B. without our writ, which makes express 
 mention of the judgment aforesaid ; and in what manner 
 you shall have executed this our writ, make appear to us, 
 on wheresoever, Isfc. and have there this writ. 
 
 Witness, iffc. 
 
 No. XV. 
 The like, and George the Third, bV. to the sheriff of greeting: 
 
 writ of inquiry whcrcas C. P. was t,ummoacd to be in our Court before
 
 Precedents in Ejectment, c^t. 
 
 us, isic. [^as in the tasty to the end for a return, and tlien as 
 follows ;] and also that the said C. D. oUght to recover 
 against the said A. B. his damages on occasion of the 
 premises, according to the form of the statute in such 
 case made and provided. Therefore we command you 
 that without delay you cause the said cattle, goods and 
 chattels to be returned to the said C. D. ^c. [as in the 
 tasty to " wheresoever, l^c. ;"] and also that by the oath 
 of honest and lawful men of your county, you diligently 
 inquire what damages the said C. D. hath sustained, as 
 well on occasion of the premises, as for his costs and 
 charges, by him about his suit in this behalf expended ; 
 and the inquisition which you shall thereupon take, make 
 appear to us at the aforesaid time, wheresoever, 'i^c. under 
 your seal and the seals of those by whose oath you shall 
 take that inquisition ; and have there the names of them 
 by whose oath you shall take that inquisition, and this 
 writ. Witness, Ifjc. 
 
 Proceedings in Ejectment. 
 
 r^EORGE the Third, by the grace of God of the No. i. 
 
 united kingdom of Great Britain and Irelandy king, 0"S'"2l wnt. 
 defender of the faith, to the sheriff of greeting. If 
 
 A. B. shall give you security to prosecute his claim, then 
 put by gages and safe pledges C. D. late of yeoman, 
 
 so that he be before us on the morrow of All Souls, 
 wheresoever we shall then be in England, to shew where- 
 fore with force and arms he entered into one messuage, 
 with the appurtenances in which E. F. esquire hath 
 
 demised to the aforesaid A. B. for a term which is not yet 
 expired, and ejected him from his said farm, and other 
 enormities to him did, to the great damage of the said 
 A. B. and against our peace. And have you there the 
 names of the pledges, and this writ. Witness ourself at 
 Westminster, the day of in the year of our 
 
 reign. 
 
 Pledges to prosecute, \ J° f f ' 
 ° V, ( Richard Roe. 
 
 The within named C. D. i John Den. 
 
 is attached by pledges, ( Richard Fen,
 
 584 , Precedents in Fjectment, S^c. 
 
 In the Kitig^s Benchy 
 Easter Term, in the 44th year of the reign of George the 
 Third. 
 
 No. II. to wit, C. D. late of yeoman, was attached 
 
 Declaration by j^ answer unto of plca wherefore the said C. D. with 
 
 original on a sm- -^ 
 
 |le demise. force and arms, l^c. entered into messuages, iffc. 
 
 {here describing the premises] with the appurtenances, situ- 
 ate and being in the parish of in the county of 
 which E. F. had demised to the said J. B. for a term 
 ■which is not yet expired ; and ejected him from his said 
 farm, and other wrongs to the said ^. B. there did, to the 
 great damage of the said A. B. and against the peace of 
 our Lord the now King, Ifjc. And thereupon the said 
 A. B. by his attorney, complains that whereas the 
 said E, F. on the day of in the year of our 
 Lord at the parish aforesaid, in the county afore- 
 said, had demised the said tenements with their appurte- 
 nances to the said A. B. to have and to hold the same un- 
 to the said A. B. and his assigns, from the day of 
 the said month of for and during, and to the full 
 end and term of seven years, from thence next ensuing, 
 and fully to be complete and ended. By virtue of which 
 demise, the said A. B. entered into the said tenements 
 with the appurtenances, and was thereof possessed for 
 the said term so to him thereof demised, and the said 
 A, B. being so thereof possessed, the said C. D. after- 
 wards, to wit, on the day of in the year afore- 
 said, with force and arms, isfc. entered into the said te- 
 nements with the appurtenances, which the said E. F. 
 had demised to the said A. B. in manner and for the term 
 aforesaid, which is not yet expired ; and ejected the said 
 A. B. from his said farm, and other wrongs to the said 
 A. B. then and there did, to the great damage of the said 
 A. B. and against the peace of our said Lord the now 
 King : wherefore the said A. B. saith, that he is injured 
 and hath sustained damage to the value of /. and 
 therefore he brings his suit, ^c. 
 
 Mr. 
 Notice to an- ' ^"^ informed that you are in possession of, or 
 
 P«"' claim title, to the premises in this declaration of eject- 
 
 ment mentioned, or to some part thereof. And I being 
 sued in this action as a casual ejector only, and having no 
 claim or title to the same, do advise you to appear on the
 
 Precedents in Ejedment^ <^'c. 5^5 
 
 first day of next Trinity term [in town or in the country, 
 « in next Trinity term"]^ in his Majesty's Court of Kings 
 Benchy wheresoever his said Majesty shall then be in Eng- 
 landy by some attorney of that Court, and then and there 
 by rule of the same Court to cause yourself to be made 
 defendant in my stead. Otherwise I shall suffer judgment 
 therein to be entered against me by default, and you will 
 be turned out of possession. 
 
 Yours, &c, 
 
 CD. 
 
 ss. A. B. complains of C. D. being in the custody No. ill. 
 
 of the marshal of the Marshalsea of our Sovereign Lord the ^-^^^^ ^^^ '° 
 King before the King himself, for that whereas E. F. 
 on the day of in the year of the reign of our 
 Lord the now King, at in the county of had de- 
 mised, to the said A. B. messuages, cfc. [reciting the several 
 parcels] with the appurtenances, situate, lying and being, 
 in the parish of in the said county of to have and to 
 hold the said tenements, with the appurtenances, to the 
 said A. and his assigns, from the day of then last 
 past, to the full end and term of five years from thence 
 next ensuing, and fully to be complete and ended; by vir- 
 tue of which said demise, he the said A. entered into the 
 said tenements, with the appurtenances, and was thereof 
 possessed until the said C. afterwards, that is to say, on 
 the day of in the year aforesaid, with 
 
 force and arms, isfc. entered into the said tenements with 
 the appurtenances which the said E. F. had demised to 
 the said J. in manner aforesaid, for the term aforesaid, 
 which is not yet expired, and ejected the said A. out of 
 his said farm ; and then and there did other wrongs to the 
 said A. against the peace of our said Lord the King, and to 
 the damage of him the said A. of twenty pounds, and 
 thereupon he brings his suit, ^c. 
 
 _,, , ( 'John Docy 
 
 Pledges to prosecute, j^-^^^^^^^^ 
 
 The notice to this declaration is the same as the last ; 
 only instead of the words, " wheresoever, k^fc." must be 
 substituted " at Westminster.^* 
 
 In the Kin^s Bench. 
 
 Easter Term, i^i^h Geo. IIL 
 
 to wit. C. D. late of yeoman, was at- No. iv. 
 
 tached to answer unto A. B, of a plea wherefore the gi„ai on a double 
 said C. D. with force and arms, ^c. entered into demise, with 
 
 one ouster.
 
 586 Precedents in Ejectment^ cjjr. 
 
 messuages, ^c [describing the premises] with the appur- 
 tenances, situate and being in the parish of in the 
 county of which E. F. had demised to the said A. 
 B. for a term which is not yet expired and ejected him 
 from his said farm. And also, wherefore the said C, D. 
 with force and arms, ^c. entered into other mes- 
 suages, l^c. with the appurtenances, situate and being 
 in the parish aforesaid, in the county aforesaid, which 
 G. H. had demised to the said A. B, for a term which 
 is not yet expired, and ejected him from his said last 
 mentioned farm, and other wrongs to the said A. B. 
 then did to the great damage of said A. B. and 
 against the peace of our Lord the now King, ^c. And 
 thereupon the said A. B. by his attorney complains, that 
 whereas the said E. F. on the day of in the 
 year of our Lord at the parish aforesaid, in the 
 county aforesaid, had demised the said tenements first 
 above mentioned, with the appurtenances, to the said 
 A. B. to have and to hold the same unto the said A. B. 
 and his assigns, from the day of the said month 
 of for and during and unto the full end and term 
 of seven years, from thence next ensuing, and fully to 
 be completed and ended. And also, that whereas the 
 said G. H. on the day of in the year of our 
 Lord at the parish aforesaid, in the county afore- 
 said, had demised the said tenements secondly above- 
 mentioned, with the appurtenances, to the said A. B. to 
 have and to hold the same unto the said A. B. and his 
 assigns, from the day of the said month of 
 for and during, and unto the full end and term of seven 
 years from thence next ensuing, and fully to be complete 
 and ended •, by virtue of which said several demises, the 
 said A. B. entered into the said tenements first and 
 secondly above-mentioned, with the appurtenances, and 
 was thereof possessed for the said several terms so to him 
 thereof demised, and being so thereof possessed, the 
 said C. D. afterwards, to wit, on the day of 
 in the year aforesaid, with force and arms, ^c. entered 
 into the said tenements first and secondly above-men- 
 tioned, with the appurtenances, which he the said E. F. 
 and G. H. had so respectively demised to the said A. B. 
 in manner, and for the several terms aforesaid, which 
 are not expired ; and ejected the said A. B. from his 
 several farms, and other wrongs to the said A. B. then 
 and there did, to the great damage of the said A, B.
 
 Precedents in Ejecbncnl, S;c. 587 
 
 and against the peace of our said Lord the now 
 King; wherefore the said A. B. saith, that he is injured 
 and hath sustained damage to the value of /. and 
 
 therefore he brings his suit, ^c. 
 
 Notice as before. 
 
 , In the King^s Bench. 
 
 Easter Tertriy 44th Geo. III. 
 to wit. C. D. late of yeoman, was at- N"- ^- , 
 
 . . * 71 r 1 1 r 1 'l''^*: '''^le "'ith 
 
 tached to answer unto A, B, or a plea wherefore the two ousurs. 
 said C ly. with force and arms, ^c. entered into 
 messuages, i^c. [describing the premises] with the appur- 
 tenances, situate and being in the parish of in the 
 county of which E. F. had demised to the said A. 
 
 B. for a term which is not yet expired ; and ejected him 
 from his said farm. And also, wherefore the said 
 
 C. D. with force and arms, ^c. entered into other mes- 
 suages, ijc. with the appurtenances, situate and being 
 in the parish rforesaid, in the county aforesaid, which 
 G. H. had demised to the said A. B. for a term which 
 is not yet expired ; and ejected him from his said last 
 mentioned farm, and other wrongs to the said A. B. 
 then did, to the great damage of the said A. B. and 
 against the peace of our Lord the now King, &c. And 
 thereupon the said A. B. by his attorney complains, 
 that whereas the said E. F. on the day of in 
 the year of our Lord at the parish aforesaid, in the 
 county aforesaid, had demised the said tenements first 
 above-mentioned, with the appurtenances, to the said 
 A. B. to have and to hold the same unto the ^aid A. B. 
 and his assigns, from the day of then last 
 past, for and during, and unto the full end and term of 
 
 years, from thence next ensuing, and fully to be 
 complete and ended. By virtue of which said demise 
 the said A. B. entered into the said tenements with the 
 appurtenances first above-mentioned, and became, and 
 was thereof possessed, for the said term so to him there- 
 of granted ; and the said A. B. being so thereof pos- 
 sessed, the said C. D. afterwards [to wit.] on the 
 day of in the year aforesaid, with force and arms, isfc, 
 entered into the said tenements with the appurtenances 
 first above-mentioned, which the said E. F. had demised 
 to the said A. B. in manner, and for the term aforesaid, 
 which is not expired j and ejected the said A. B. from 
 his said first mentioned farm. And also, that whereas the
 
 •588 Precedents in EjecMent^ S^c. 
 
 said G. H. on the day of in the year afore'- 
 
 said, at the parish aforesaid, in the county aforesaid, 
 had demised the said tenements with the appurtenances 
 secondly above-mentioned, to the said A. B. to have 
 and to hold the same, unto the said A. B. and his as- 
 signs, from the day of then last past, for 
 and during, and unto the full end and term of seven 
 years, from thence next ensuing, and fully to be com- 
 plete and ended. By virtue of which said last-mentioned 
 demise, the said A. B. entered into the tenements with 
 the appurtenances secondly above-mentioned, ^c. and 
 became, and was thereof possessed, for the said term so 
 to him thereof granted ; and the said A. B. being so 
 thereof possessed, the said C. D. afterwards, [to wit.J 
 on the said day of in the year aforesaid, 
 with force and arms, l!fc. entered into the said tene- 
 ments with the appurtenances secondly above-mentioned, 
 which the said G. H. had so demised to the said A. B. 
 in manner, and for the term last aforesaid, which is not 
 yet expired, and ejected the said A. B. from his said 
 last-mentioned farm, and other wrongs to the said A. B, 
 then and there did, to the great damage of the said A. B. 
 and against the peace of our said Lord the now King. 
 Wherefore, the said A. B. saith that he is injured, and 
 hath sustained damage to the value of /. and there- 
 fore h« brings his suit, i^c. 
 
 Notice as before. 
 
 No. VI. 
 Affidavit of 
 service of de- 
 claration, where 
 there is but one 
 teaant. 
 
 In the King*s Bench. 
 
 C A, B. on demise of E. F. plaintiff. 
 
 Between -< and 
 
 tc. D. - - defendant. 
 
 S. S. of, ^c. maketh oath, and saith, that he this 
 deponent did, on the day of last, 
 
 deliver a true copy of the declaration and notice here- 
 unto annexed, to W. T. tenant in possession of the pre- 
 mises in the said declaration mentioned •, and at the same 
 time, told him it was a declaration in ejectment, and 
 that unless he did appear thereunto, by some attorney of 
 this Honourable Court, on the first day of the present 
 Term, judgment would be entered against the said 
 defendant by default, and the said W. T. would be 
 turned out of possession 9 [or words to that or the like 
 effect.] 
 
 tjworn, ^f. 5. 5.
 
 Precedents in Ejectment^ S^-c. 589 
 
 S. 5. of, Isjc. maketh oath and saith, that he this de- ^q, yii. 
 ponent did on, ^c. last, deliver a true copy of the de- Similar affidavit, 
 
 , - , . , , ,,,. T- where there are 
 
 claration and notice hereunto annexed, to IV . 1. tenant several tenants. 
 in possession of part of the premises in the said declara- 
 tion mentioned ; and did also, on the same day, deliver 
 another copy of the said declaration and notice to D. the 
 wife of /. T. tenant in possession, of the residue of the 
 premises in the said declaration mentioned, she the said 
 D. then being thereon. And this deponent further saith, 
 that he told them severally that it was a declaration in 
 ejectment, and that unless they did severally appear 
 thereto, by some attorney of this Honourable Court, on 
 the first day of this present term, judg- 
 
 ment would be entered against the said defendant by de- 
 fault, and they the said W. T. and /. T. would be 
 severally turned out of possession ; [or words to that or 
 the like effect.] 
 
 Sworn, &c. S. S. 
 
 A. on the demise of F. against C 
 
 "Unless the tenant In possession of the premises In No. viii. 
 question shall appear and plead to issue on Tuesday next ^"^^^ ^°^ J"'*^' 
 after, Ifjc. {time tenant is to appear in) LET judgment be 
 entered for the plaintiff against the now defendant C, by 
 default upon the motion of Mr. D. 
 
 By the Court. 
 
 Note. If plaintiff does not move for judgment the 
 same Term tenant had notice to appear, the Court" will 
 not grant such rule. 
 
 Note. When you move for a rule for judgment you 
 annex the affidavit of service to a copy of the declaration 
 stamped, and give it to counsel with los. 6d. fee to 
 move. The clerk of the rules files the affidavit and 
 declaration on such motion, therefore keep by you ano- 
 ther copy on stamp, or If judgment go against the 
 casual ejector for want of tenant's entering into the rule, 
 you must have an office copy of the declaration from 
 the clerk of the rules in order to enable you to sign 
 judgment.
 
 590 
 
 Precedents in Ejectment^ S^^c, 
 
 The Common Rule of Court 
 
 Hilary Tenriy the twenty-ninth year of King George the 
 Second. 
 
 Sm'ilh V. Stilfs, 
 for one raes- 
 suage with ap- 
 purtenances in 
 Sutton, on the 
 demise of Jo/jn 
 Jiogert. 
 
 Berkshire to wit. It is ordered by the Court, by the 
 assent of both parties, and their attorn ies, that George 
 Saundersj gentleman, may be made defendant in the place 
 of the now defendant William Stiles, and shall immediately 
 appear to the plaintiff's action, and shall receive a declara- 
 tion in a plea of trespass and ejectment of the tenements 
 in question, and shall immediately plead thereto, not 
 guilty ; and, upon the trial of the issue, shall confess 
 lease, entry, and ouster, and insist upon his title only. 
 And if, upon trial of the issue, the said George do not 
 confess lease, entry, and ouster, and by reason thereof 
 the plaintiff cannot prosecute his writ, then the taxation 
 of costs upon such non-pros, shall cease, and the said 
 George shall pay such costs to the plaintiff, as by the Court 
 of our Lord the King here shall be taxed and adjudged 
 for such his default in non-performance of this rule ; and 
 judgment shall be entered against the said William Stiles, 
 now the casual ejector, by default. And it is further or- 
 dered, that, if upon trial of the said issue a verdict shall 
 be given for the defendant, or if the plaintiff shall not 
 prosecute his writ, upon any, other cause than for the not 
 confessing lease, entry, and ouster, as aforesaid, then the 
 lessor of the plaintiff shall pay costs, if the plaintiff him- 
 self doth not pay them. 
 
 By the Court. 
 
 When the proceedings are by l?ill, and not by original, 
 the words " and file common hair should be inserted after 
 the words requiring the tenant's appearance ; and the 
 word bill should stand in the room of the word ivrit, 
 throughout. 
 
 A. on the demise of F. against C. 
 
 K. B, 
 
 SrR, 
 
 A notice of the Take noticc that I defend a title for a messuage and 
 
 premises the eardcn, with the appurtenances, in the parish of 
 
 .Icfendant de- ^ . , ' \- • ■ r .1, 
 
 frnds for. >'i 1"^ county of now m possession ot tne
 
 Precedents in Ejectment^ ^c, 591 
 
 said /. F. or his under-tenant. Dated the 
 day of 1 804. 
 
 To Mr. R. R. Yours, ^c. 
 
 the plaintiff's attorney, P. P. 
 
 These. defendant's attorney. 
 
 As yet of term, Iffc. to wit. John Doe No. XI. 
 
 on the demise of A. B. puts.in his place E. F. his attor- {^if^^Xs bill, 
 ney, against Richard Rocy in a plea of trespass and eject- with a remittitur 
 
 damna, 
 
 mcnt. 
 
 to wit, the said Richard Roe in person, at the suit 
 
 of the said John Doe, in the plea aforesaid. 
 
 to wit. Be it remembered, that hi 
 
 Term last past, before our Lord the King at Westminster, 
 came John Doe by E. F. his attorney, and brought into 
 the Court of our said Lord the King himself then there, 
 his certain bill against Richard Roe, being in the custody 
 of the marshal of the marshalsea of our said Lord the 
 King before the King himself of a plea of trespass and 
 ejectment : and there are pledges for the prosecution 
 thereof, to wit, John Denn, and Richard Fenn ; which 
 said bill follows in these words ; that is to say: John Doe 
 complains of Richard Roe being in the custody, Cfff. (here 
 copy the declaration to the end, omitting the pledges and notice ; 
 and then proceed on a neiu line as follows :J 
 
 And now at this day, that is to say, on next 
 
 after in this same Term, until which day the 
 
 said Richard Roe had leave to imparl to the said bill, and 
 then to answer the same, ii^c, before our said Lord the 
 King at JVestminster, come as well the said John Doe by 
 his attorney aforesaid, as the said Richard Roe in his- 
 proper person; and the said Richard Roe defends the 
 force and injury when, is'c. and says nothing in bar or 
 preclusion of the said John Doe; whereby the said John 
 Doe remains therein undefended against the said Richard 
 Roe, therefore it is considered that the said John Doe 
 recover against the said Richard Roe his said term yet 
 to come of and in the tenements aforesaid with the ap- 
 purtenances, and also his damages sustained by reason of 
 the trespass and ejectment aforesaid ; and hereupon the 
 said John Doe freely here in Court remits to the said 
 Richard Roe, all such damages costs and charges as 
 might or ought to be adjudged to him the said John Doe, 
 by reason of the trespass and ejectment aforesaid : There-
 
 592 Precedents in Ejectment, S;c. 
 
 fore let the said Richard Roe be acquitted of those da- 
 mages, costs and charges, ^c. And hereupon the said 
 John Doe prays the writ of our said Lord the King to be 
 directed to the sheriff of the county aforesaid, to cause 
 him to have possession of his said term yet to come of 
 and in the tenements aforesaid with the appurtenances : 
 and it is granted to him, returnable before our said Lord 
 the King at JVestminslerj on next after ; the 
 
 same day is given to the szid rRichard Roe there, ^c. 
 
 (Entry oj" warrants of attorney, as in the last.) 
 
 to wit. Richard Roe wzsTittTiched, ^c. [}:ere copy 
 
 the declaration to the end, and then proceed as follows :] 
 
 And the said Richard Roe in his proper person, comes 
 and defends the force and injury when, ^c. and says 
 nothing in bar or preclusion, ^c. [^as before, making the 
 ivrit of possession returnable on a general return day']. 
 
 [To the end of the issue, and then as follows :] 
 Judgment with At which day, before our said Lord the King at West- 
 ''an'^JfthYdf- *^^^^t^^'i come the parties aforesaid, by their attornies 
 mages. aforesaid ; and hereupon the said C. D. relinquishing his 
 
 said plea by him above pleaded, says that he cannot deny 
 the action of the said J. B. nor but that he the said C. D. 
 is guilty of the trespass and ejectment above laid to his 
 charge, in manner and form as the said A. B. hath above 
 thereof complained against him ; and he confesses and 
 admits that the said A. B. hath sustained damages, by 
 reason of the said trespass and ejectment, to the sum of 
 one penny, besides his costs and charges, by him about 
 this suit in this behalf expended. And hereupon the said 
 A. B. freely here in court remits to the said C. D. the 
 residue of the damages in the said declaration mentioned, 
 and prays judgment and his term yet to come of and in 
 the tenements aforesaid with the appurtenances, together 
 with his said damages so confessed, and his costs and 
 Judgment charges aforesaid, to be adjudged to him, i^c. There- 
 
 iigned,&c. £Qj.g -J jg considered, that the said J. B. do recover 
 
 against the said C. D. his said term yet to come of and 
 in the tenements aforesaid with the appurtenances, toge- 
 ther with the damages aforesaid, to the sum of one 
 penny, in form aforesaid confessed, and also /. for 
 
 his said costs and charges, by the court of our said Lord 
 the King, now here adjudged to the said A. B. and 
 with his assent •, which said damages, costs, and charges
 
 Precedents in Ejectment^ &;c, 593 
 
 in the whole, amount to /. And hereupon the 
 
 said A. B. prays the writ of our said Lord the King, to 
 be directed to the sheriff of aforesaid, to cause 
 
 him to have possession of his said term yet to come, of 
 and in the tenements aforesaid, with the appurtenances ; 
 and it is granted to him, returnable before our said Lord 
 the King, on wheresoever, &c. 
 
 [To the -end of the issuer and then as follows ;] ^^ ^jjj 
 
 At which day, before our said Lord the King at West- The like for 
 minster, come the parties aforesaid, by their attornies to^pan'of the* 
 aforesaid ; and hereupon the said C. D. as to parcel premises, and 
 
 of the tenements in the said declaration mentioned, ^^-^moIz^m' 
 linquishing his said plea, by him above pleaded, says, /"-"''yf as to 
 that he cannot deny the action of the said John Doe, nor 
 but that he the said C. D. is guilty of the trespass and 
 ejectment above laid to his charge, in manner and form 
 as the said John Doe hath above thereof complained 
 against him: And upon this, the said John Doe says, 
 that he will not further prosecute his suit against the 
 said C. D. for the trespass and ejectment in the residue 
 of the tenements aforesaid ; and he prays judgment and 
 his term yet to come, of and in the said with the 
 
 appurtenances, parcel, £5*r. together with his damages, 
 costs and charges, by him in this behalf sustained : There- judgment 
 fore it is considered, that the said John Doe do recover s'Sn^*** ^<^' 
 against the said C. D. his said term yet to come, of and 
 in the said with the appurtenances, parcel, life. 
 
 and also /. for his said damages, costs and charges, 
 
 by the Court of our said Lord the King now here ad- 
 judged, to the said John Doe, with his assent, and the 
 assent of the said C. D. And let the said C. D. be ac- 
 quitted of the said trespass and ejectment, in the residue 
 of the tenements aforesaid, and go thereof without day, 
 £ffr. And the said John oe prays the writ of our said 
 Lord the King to be directed to the sheriff of afore- 
 
 said, to cause him to have possession of his said term yet 
 to come, of and in the said with the appurte- 
 
 nances, parcel, l!^c. and it is granted to him, return- 
 able before our said Lord the King, on whereso- 
 ever, Cfff. 
 
 Afterwards, that is to say, on the day and at the place Special verdict, 
 within contained, l^c. \_as in a common postea, to the finding 
 of the jury, which varies according to facts of the case, and 
 concludes as follows i'} but whether or not upon the whole
 
 594 Precedents in Ejectment, 8^c. 
 
 matter aforesaid, by the jurors aforesaid in form aforesaid 
 found, the said C. D. is guilty of the trespass and eject- 
 ment within specified, the jurors aforesaid are altogether 
 ignorant ; and hereupon they pray the advice of the Court 
 of our said Lord the King, before the King himself ; and, 
 if upon the whole matter aforesaid, it shall seem to the 
 said Court, that the said C. D. is guilty of the trespass 
 and ejectment aforesaid, then the jurors aforesaid, upon 
 their oath aforesaid, say, that the said C. D. is guilty 
 thereof, in manner and form as the said John Doe hath 
 within thereof complained against him ; and in that case, 
 they assess the damages of the said John Doe^ on occa- 
 sion of the trespass and ejectment aforesaid, besides his 
 costs and charges by him about his suit in that behalf ex- 
 pended, to /. and for those costs and charges to 
 s. But if upon the whole matter aforesaid, it 
 shall seem to the said Court, that the said C. D. is not 
 guilty of the trespass and ejectment aforesaid, then the 
 jurors aforesaid, upon their oath aforesaid say, that the 
 said C. D. is not guilty thereof, in manner and form as 
 he hath within in pleading alleged. And because, ^c. 
 No. XIV. Therefore it is considered, that the said John Doe do re- 
 mrt Iffound for covcr against the said C. D. his said term yet to come of 
 the plaintiff and and in the tenements aforesaid with the appurtenances, 
 fcndant/'^^ ^^' ^"^ ^^^ ^"^^^ damages to /. by the jurors aforesaid 
 in form aforesaid assessed, and also /. for his said 
 costs and charges by the Court of our said Lord the King 
 now here adjudged of increase to the said j^.B. and with 
 his assent, which said damages, costs and charges, in the 
 whole, amount to /. And let the said C. D. be 
 taken, ^c. And hereupon the said John Doe prays the 
 writ of our said Lord the King to be directed to the sheriff 
 of the county of aforesaid, to cause him to have 
 possession of his said term yet to come of and in the te- 
 nements aforesaid with the appurtenances; and it is grant- 
 ed to him, returnable before our said Lord the King, on 
 wheresoever, i^c. 
 No. XV. George the Third, ^c. To the sheriff of greet- 
 The like for the • tj^g^efore it is considered, that the said John Doe do 
 
 piamtinastopart o ... 
 
 of the premises, rccovcr agaiust the said C. D. his said term yet to come 
 of and in the said parcel, ^c. with the appurte- 
 
 nances, and the damages, costs and charges, aforesaid, 
 by the jurors aforesaid, in form aforesaid assessed, and 
 also /. for his said costs and charges, by the 
 
 Court of our said Lord the King now here adjudged of 
 
 and for defendant 
 as to the residue
 
 Precedents in Ejectynent, &^x. 595 
 
 in crease to the said yokn Doe, and with his assent; which 
 said damages, costs and charges, in the whole, amount 
 to I. And let the said John Doe be amerced, for 
 
 his false claim against the said C. D. as to the residue of 
 the tenements in the said declaration mentioned, whereof 
 the said C. D. is acquitted in form aforesaid : and the said 
 C. D. go thereof without day, ^c. and hereupon the said 
 John Doe prays the writ, £fff. \as in the last.] 
 
 Whereas J. B. lately in our Court before us at West- „ ^°- ^\^ 
 
 . . , . Habere facias 
 
 minsterf by bill without our writ [or if by original j by our posjessionem. 
 writ], and by the judgment of the same Court, recovered 
 against C. D. his term then and yet to come of and in 
 two dwelling-houses, ^^r. {as in the declaration in eject- 
 tnentl, with the appurtenances, situate, lying and being, 
 in the parish of in your county, which E. F. on the 
 
 day of in the year of our reign, had 
 
 demised to the said A. B. to hold the same to the said 
 vf. B. and his assigns, from the day of then 
 
 last past, for and during, and until the full end and term 
 of years from thence next ensuing, and fully to be 
 
 complete and ended, by virtue of which said demise, the 
 said j^. B. entered into the said tenement with the appur- 
 tenances, and was possessed thereof until the said C D. 
 afterwards, to wit, on the day of in the year 
 aforesaid, with force and arms, ^c. entered into the said 
 tenements with the appurtenances, which the said JE, F. 
 had demised to the said y^. B. in manner and for the term 
 aforesaid, which was not then, nor is yet, expired, and 
 ejected the said ^. B. from his said farm ; whereof the 
 said C. D. is convicted, as appears to us of record : there- 
 fore we command you that without delay you cause the 
 said A. B. to have the possession of his said term yet to 
 come of and in the tenements aforesaid with the appurte- 
 nances ; and in what manner you shall have executed this 
 our writ, make appear to us at Westminster^ on next 
 
 after and have there then this writ. Witness, ^c. 
 
 Note: This writ must be engrossed on parchment. 
 Make a precipe for the office thus : 
 
 to wit. Writ of possession for A. B. on the de- 
 mise of E. F. against C. D. for a messuage, with the ap- 
 purtenances, situate at in the county of 
 Returnable [the return]. 
 R. R. attorney. 
 Note : Carry the ivrit and pracipe to the officer who 
 signs the writs in this Court ; pay him for signing the
 
 596 Precedents in Ejeclment, &;c, 
 
 same is. 8i/. sealing at the seal office 7 J. the sheriff's war- 
 rant thereon is. /\d. his fee for executmg the same is is. 
 in the pound, in the yearly value of the premises, if the 
 same does not exceed 100/. per annum y and 6d. in the 
 pound for every 20/. above, and is. returning the writ. 
 Officer's fee executing writ usually i/. \s. 
 
 If the proceedings are by original^ the writ of posses- 
 sion differs only from the above in the introductory part, 
 and in the return. It is signed by the filacer, and sealed 
 as the above writ. 
 No. xvii. Georze the Third, lye. To the sheriff of greet- 
 
 The like on a 
 
 double demise, ing : whereas A. B. lately in our Court before us at West- 
 minster, by bill without our writ [or if by original, by our 
 writ], and by the judgment of the said Court, recovered 
 against C. D. his term then and yet to come of and in 
 two dwelling-houses, ^c. [^as in the declaration in ejectment'] 
 with the appurtenances, situate, lying and being, in the 
 parish of in your county, which E. F. on the 
 
 day of in the year of our reign, had demised 
 
 to the said J. B. to hold the same to the said A. B. and 
 his assigns, from the day of in the 
 
 year aforesaid, for and during, and unto the full end and 
 term of years, from thence next ensuing, and fully 
 
 to be complete and ended : and also his term then and yet 
 to come of and in two other dwelling-houses, t^fc. with 
 the appurtenances, which G. H. on the day of 
 
 in the year aforesaid, had demised to the said A. B. 
 
 to hold the same to the said A. B. and his assigns, from 
 the day of in the year aforesaid, for 
 
 and during, and until the full end and term of years 
 
 from thence next ensuing, and fully to be complete and 
 ended; by virtue of which said several demises, the said 
 A. B. entered into the said several tenements with the 
 appurtenances, and was possessed thereof, until the said 
 C. D. afterwards, to wit, on the day of in 
 
 the year aforesaid, with force and arms, €s*r. en- 
 
 tered into the said several tenements, with the appurte- 
 nances, which the said E. F. and G. H. had respectively 
 demised to the said A. B. in manner and for the several 
 terms aforesaid, which were ndt then, nor are yet, expir- 
 ed, and ejected the said A. B. from his said several farms : 
 whereof the said C. D. is convicted, as appears to' us of 
 record : therefore we command you, that without delay 
 you cause the said A. B. to have the possession of his said 
 several terms yet to come of and in the said several tenc-
 
 Precedents in Ejectment, S^x. 597 
 
 ments, with the appurtenances ; and in what manner you 
 shall have executed this our writ, make appear to us at 
 Westminster^ on next after and have there 
 
 then this writ. Witness, t^fc. „ ^„,„ 
 
 G^^r^g-^ the Third, i^c. To our chancellor of our county- The like, in a 
 palatine of Lancaster^ or to his deputy there, greeting : <^o""'y-palatine. 
 whereas, ^r. \_as in the last writ, to the words " as appears 
 to us of record," then as follows :'] therefore we command 
 you, that by our writ under the seal of our said county- 
 palatine, to be duly made, and directed to the sheriff 
 of the same county, you command the said sheriff, that 
 without delay he cause the said A. B. to have the pos- 
 session of his several terms aforesaid, yet to come of 
 and in the several tenements aforesaid, with the ap- 
 purtenances -, and in what manner the said sheriff shall 
 execute our said writ, let him certify to you, so that 
 you may make the same known to us at Westminster^ on 
 next after and have there then this writ. 
 
 Witness, Cffr. j,^ ^^^ 
 
 George the Third, ^c. To the sheriff of greet- The like, and 
 
 ing : whereas, k^c [as in -the habere facias, to the return f^s"/^*^'^' '""^ 
 dayy then proceed as follows :] we also command you, that 
 of the goods and chattels of the said C. D. in your 
 bailiwick, you cause to be made /. which the said 
 
 j4. B. lately in our said Court before us at Westmittster 
 aforesaid, recovered against the said C. D. for his da- 
 mages which he had sustained, as well on occasion of 
 the trespass and ejectment aforesaid, as for his costs and 
 charges by him about his suit in that behalf expended ; 
 whereof the said C. D. is also convicted, as appears to 
 us of record ; and have you the said monies before us at 
 Westminster^ on the return day aforesaid, to render to the 
 said A. B. for his damages aforesaid ; and have there 
 then this writ. Witness, Iffc. ' 
 
 George the Third, ^c. To the sheriff of greet- The like, and 
 
 ing : "whereas, ^c \as in the habere facias possessionem, "P.'^^ .^"^ "'"" 
 
 7 177 r;7Ti taciendum for 
 
 to the return day, and then as follows:] we also com- costs. 
 mand you, that you take the said C. D. if he shall be 
 found in your bailiwick, and him safely keep, so that 
 you may have his body before us at Westminster, on the 
 return day aforesaid, to satisfy the said A. B. I. 
 
 which in our said Court before us at Westminster afore- 
 said, were adjudged to the said A. B. for his damages 
 which he had sustained, as well on occasion of the 
 trespass and ejectment aforesaid, as for his costs and
 
 598 
 
 No. XXI. 
 
 Declaration by 
 bill, for the 
 mesne profits 
 and costs in 
 ejectment after 
 judgment by 
 default against 
 the casual 
 ejector. 
 
 Precedents in Ejectment, ^c. 
 
 charges by him about his suit in that behalf expended ; 
 whereof the said C. D. is also convicted, as appears io 
 us of record ; and have there then this writ. Wit- 
 ness, isfc. 
 
 to wit. A. B. complains of C. D. being in the 
 
 custody of the marshal of the Marshalsea of our Lord 
 the now King before the King himself, for that he the 
 said C. D. on the day of in the year of our 
 
 Lord with force and arms, ^c. broke and entered 
 
 messuages [describing the premises as in the declara- 
 tion in ejectment] with the appurtenances, of him the 
 said A. B. situate and being in the parish of, Sffr. in the 
 said county of and then and there ejected and ex- 
 
 pelled, put out and removed the said A. B. from the 
 possession, use, occupation and enjoyment thereof, for a 
 long space of time, to wit, for the space of then 
 
 next following ; and during all that time there took, had 
 and received to his own use all the rents, issues and pro- 
 fits of the said tenements, with the appurtenances, being 
 of a large yearly value, to wit, of the yearly value of 
 /. By reason whereof the said A. B. for and dur- 
 ing all that time not only lost and was deprived of all the 
 profits, benefit and advantage of the tenements aforesaid, 
 but was also thereby forced and obliged to lay out and 
 expend, and did necessarily lay out and expend a large 
 sum of money, to wit, the sum of /. in and about 
 
 recovering and obtaining possession of his tenements 
 aforesaid, with the appurtenances, to wit, at the parish 
 aforesaid ; and other wrongs to the said A. B. then and 
 there did against the peace of our said Lord the now King, 
 and to the damage of the said A. B. of /. ; and 
 
 therefore he brings his suit, ^c. 
 
 _, , ( John Doe, 
 
 Pledges to prosecute | ^,-,^^,^ ^,,. 
 
 No. XXII. 
 
 The like, by 
 original. 
 
 to wit. C. D. late of in the county of 
 
 yeoman, was attached to answer A. B, of a plea 
 wherefore, with force and arms, he broke and entered 
 
 messuages, ^c. with the appurtenances, in 
 in the county of aforesaid, and expelled, put out 
 
 and removed the said A. B. from the possession and oc- 
 cupation of his said tenements, and kept and continued 
 the said A. B. so ejected, expelled, put out and removed 
 from the possession and occupation of the same for a 
 long space of time •, and, during all that time, there
 
 Precedents in Ejectment^ 3^x. 599- 
 
 had and received to his own use, all the rents, issues 
 and profits of the said tenements, being of a large yearly 
 value ; and other wrongs to the said A. B. there did, to 
 the great damage of the said A. B. and against the peace 
 of our Sovereign Lord the King, Isfc. ; and hereupon the 
 said A. B. by E. F. his attorney, complains that the said 
 C. D. on the day of in the year of 
 
 the reign of his present Majesty, with force and arms, 
 broke and entered the said tenements, '^c. with the ap- 
 purtenances, in aforesaid, in the said county of 
 and ejected, expelled, put out and removed the 
 said A. B. from the possession and occupation of his said 
 tenements, and kept and continued the said A. B. so 
 ejected, expelled, put out and removed from the 
 possession and occupation of the same, for a long space 
 of time ; that is to say, from the said day of 
 
 in the year aforesaid, until the day of suing 
 
 out tlie original writ of the said A. B. ; and during all 
 that time, there had and received to his own use, all the 
 rents, issues and profits of the said tenements, being of 
 a large yearly value, to wit, of the yearly value of 
 
 /. J and other wrongs to the said A. B. then and 
 there did to the great damage of the said A. B. and 
 against the peace of our said Sovereign Lord the King : 
 wherefore the said A. B. says that he is injured, and 
 hath sustained damage to the value of fifty pounds ; and 
 therefore he brings his suit, ^c. 
 
 And the said C. D. by G. H. his attorney, comes and ^°- xxiir. 
 defends the force and injury when, ^c. and says, that viz. i. Not ' 
 he is not guilty of the supposed trespass above laid to his |V^^'y '..^"^ *• 
 charge, in manner and form as the said A. i?. hath above within six years, 
 thereof complained against him ; and of this he puts 
 himself upon the country, and the said C. D. doth the 
 like. And for a further plea in this behalf, the said 
 C. D. by leave of the Court here, for this purpose had 
 and obtained, according to the form of the statute in 
 such case made and provided, says, that the said A. B. 
 ought not to have his aforesaid action thereof against him; 
 because he says that he was not guilty of the supposed 
 trespass aforesaid, above laid to his charge, at any time 
 ■within six years next before the day of exhibiting the bill 
 [or suing out the original writ] of the said A. B. against 
 the said C. D. in the manner and form as the said A. B. 
 hath above thereof complained against him the said
 
 600 , Precedents in Ejectment, ^c. 
 
 C, D. : and this he the said C. D. is ready to verify 5 
 ■wherefore he prays judgment if the said y^. B. ought to 
 have his aforesaid action thereof, against him, ^c. 
 
 C.R. 
 
 issue. C. Ij. by him lastly above pleaded in bar, says, that he, 
 
 by reason of any thing by the said C. D. in that plea 
 alleged, ought not to be barred from having his afore- 
 said action thereof against him ; because he saith that 
 the said C, D. was guilty of the trespass aforesaid, 
 above laid to his charge, within six years next before the 
 day of exhibiting the bill [or suing out the original writ] 
 of the said C. D. against the said C D. in manner and 
 form as he the said A. B. hath above thereof complained 
 against him the said C. D. and this he the said A. B. 
 prays may be inquired of by the country ; and the said 
 C. D. doth the like, l^c.
 
 INDEX. 
 
 Admittance. 
 See Copyholders. 
 
 Acceptance. 
 
 Acceptance of rent by tenant in 
 tail, or issue in tail, confirms a 
 lease, in what cases. 33, 34 
 
 Such acceptance by an infant ren- 
 ders a voidable lease valid, in what 
 case. 77 
 
 1 acceptance of rent cannot es- 
 tablish an estate or a lease abso- 
 lutely void, it renders good only 
 an estate voidable by entry. 
 
 188, 307 
 
 Acceptance of rent, creates a te- 
 nancy from year to year, and en- 
 titles the party to a notice to 
 quit, in what cases. 156 
 
 Acceptance of rent is a waiver of a 
 notice to quit, in what cases. 
 
 163, 164 
 
 The penalty of a nomine pcencc is 
 waived by acceptance of rent. 241 
 
 If lessor accept rent after condition 
 broken it will bar his entry. 307 
 
 Acceptance of (single) rent accrued 
 after notice to quit, is a waiver of 
 landlord's right todouble rent. 338 
 
 The assignee of a reversion, who has 
 accepted rent from the assignee 
 of the term, may maintain cove- 
 nant against whom. 276 
 
 Acceptance of rent from an assignee 
 after notice of the assignment, 
 dispenses with a condition that 
 the lessee shall not assign without 
 licence. 250 
 
 See Covenant, Debt, Notice. 
 
 Action, 
 
 See Assumpsit, Case, Covenant, Debt, 
 Detinue, Ejectment, Replevin, Tres- 
 pass, Trover, Waste, 
 
 Administrators and Executors, 
 
 They have the same interest in the 
 chattels of their intestate or tes- 
 tator as the deceased had. 288 
 
 They may dispose absolutely of 
 terms of years in right of their 
 intestate or testator. 79 
 
 Executor of a lessee, who has as- 
 signed, is liable to the same co- 
 venants as the lessee. 267 
 
 As to notice to quit, they stand in 
 the situation in which the de- 
 ceased would have stood. 156 
 
 As they have the chattels of the de- 
 ceased, so they are entitled to the 
 evidences concerning them. 288 
 
 Trees, in what cases in the nature of 
 a chattel, and therefore go to the 
 executor of the lessee, and in 
 what, not. 289 
 
 Executor or administrator of the 
 lord is entitled to fines due in the 
 lord's time. 287 
 
 The executor, 4'c. of tenant in fee 
 shall have the emblements, if such 
 tenant die after sowing and before 
 severance. 227 
 
 Executors of a husband seised in 
 right of his wife shall have the 
 emblements, in what case. 229 
 
 Hops are emblements. . 226 
 
 The executor of the grantee of te- 
 nant for life shall not have the em- 
 blements, in what case. 227 
 
 Things to which an executor is not 
 entitled. 289 
 
 Administrators and executors may 
 grant leases. 79 
 
 One of two executors may surrender 
 an estate in right of their testa- 
 tor. 129 
 
 Lease granted by a special adminis- 
 trator during the minority of an 
 executor, how far valid. 79
 
 602 
 
 INDEX. 
 
 Executors, S^c. may bring debt for 
 arrearages of rent. 289 
 
 Or they may distrain for it. ibid. 
 So, those of tenant for life may bring 
 an action on the case for a pro- 
 portionable part of the rent due. 
 182, 1S3 
 
 The benefit of a covenant or obliga- 
 tion goes to the covenantee's exe- 
 cutor, l)~c. in what case. 288 
 
 The executors, ^x. of a bishop 
 lessee shall have the residue of the 
 lease. ibid. 
 
 The same action that the deceased 
 might have had, may the execu- 
 tor, Sfc. have also. 289 
 
 But an executor, Sfc. cannot charge 
 another for personal wrong done 
 to his testator. 291 
 
 Where lessee's rent is assigned by 
 act of parliament, his executor 
 becomes liable to covenant for 
 rent, in what case. 263 
 
 The executor, ^c. is entitled to an 
 action of covenant, on a personal 
 covenant with their testator, 
 whether named or not. 291, 292 
 
 The executor, dfc. of a lessee may 
 have covenant for the renewal of 
 a lease. 292 
 
 Of executor charged as ter-tenant 
 for his enjoyment of the pre- 
 mises, ibid. 
 
 The executor of a lessee when liable 
 on covenants that run with the 
 land. 267, 268, 292 
 
 When charged in covenant either 
 as executor or as assignee. 292 
 
 Upon a covenant implied an action 
 will not lie against him. 293 
 
 Distinction as to heir and executor 
 respecting a covenant to repair. 
 
 291 
 
 The executor or administrator may 
 have an action against the baililF 
 of a liberty for executing zji.fa. 
 and removing goods off premises 
 before the landlord was paid a 
 year's rent. 459 
 
 In action of debt or covenant for 
 rent, inciuTfd after lessee's death, 
 his executor or administrator may 
 V)c charged by the lessor cither as 
 su(*h, or as assignee. 327 
 
 An executor may have replevin for 
 goods taken in his ttbtator's life 
 tnnt. 467 
 
 Of distress and avowry by executor* 
 and administrators. 487 
 
 An executor in what cases a wit- 
 ness. 398 
 
 Advowsott. 
 
 What. 9& 
 
 May be granted, in what manner. 
 
 ibid. 
 
 Whether it be the object of a de- 
 mise, ibid. 
 
 Acceptance of an advowson by the 
 lessee of an advowson is not a 
 surrender. 131 
 
 Agreeme7Us. 
 
 Rules for distinguishing agreemenls- 
 for leases from leases. 7, Sfc. 
 
 When equity will enforce the per- 
 formance of an agreement for a 
 lease, and when not. 21, fyc. 
 
 What acts amount to part perform- 
 ance of an agreement. 23 
 
 The party not relieved against if a 
 bond be with a penalty. 24 
 
 Evidence to explain an agreement, 
 in what cases admitted, and in 
 what not. 22, 341 
 
 A letter takes a parol agreement out 
 of the statute of frauds, in what 
 case. 23 
 
 Articles of agreement may be recti- 
 fied by the mirmtes. ibid. 
 
 But essential additions to a convey- 
 ance cannot be made. ibid. 
 
 Express proof of a mistake is neces- 
 sary to obtain relief in equity. 2^. 
 
 Money paid under an agreement 
 not performed may be recovered 
 on a count for money had and re- 
 ceived. 28 
 
 In what cases equity will not relieve, 
 where the agreement cannot be 
 executed. 24, 25 
 
 Remedies at law. 26 
 
 By action of covenant. ibid. 
 
 By action of asst(7npsit. 27 
 
 Stamp necessary to agreements. 30 
 
 Where a note in writing is, express- 
 in"- the quantum of rent or the 
 duration of the term, a parol 
 agreement substantially varying 
 from the written contract is ioad- 
 missiblc. 341 
 
 Even though for want of a stamp or
 
 INDEX. 
 
 603 
 
 for other defect, the written agree- 
 ment is inadmissible. 341 
 
 But it is otherwise as to collateral 
 matters. ibid. 
 
 Or to explain an instrument, ibid. 
 
 Or to prove other considerations 
 than those expressed. ibid. 
 
 Of agreements for lodgings. 1G7 
 
 An alien may occupy under an 
 agreement for occupation of pre- 
 mises, though he cannot under a 
 lease. 94 
 
 See Assumpsit, and Covenant. 
 
 Alien. 
 
 Who are aliens, and who not. 94 
 An alien cannot maintain an eject- 
 ment, nor be party to a lease. 
 
 94, 357 
 
 But an alien may occupy under an 
 
 agreement. 94 
 
 And acquire a settlement. ibid. 
 
 Cannot take a grant from the crown. 
 
 ibid. 
 
 Annuity. 
 
 Is an incorporeal hereditament. 
 
 99, 103 
 
 May be demised by way of assign- 
 ment. 103 
 
 If lessee hold an estate on condition 
 of paying an annuity, non-pay- 
 ment of such annuity is a breach 
 of covenant, in what case. 340 
 
 Antient Demesne. 
 
 May be pleaded to an action of 
 
 ejectment. 387 
 
 How to plead it. ibid. 
 
 Apartmenls. 
 
 See Lodgings and Tenancy for a less 
 term than a year. 
 
 Appendant. 
 
 Explanation of the term. 222 
 
 The lord may have the land of his 
 tenant common appendant to his 
 own demesnes. ibid. 
 
 Ejectment will lie for common ap- 
 pendant. 3.59 
 
 A conduit built by the lessor will 
 pass with the house, being quasi 
 appendant thereto, in what case. 
 
 98 
 
 An advowson is either appendant or 
 in gross. 99 
 
 Apportionment. 
 
 Apportionment, what. 182 
 
 Apportionment of rent, regulations 
 concerning. ibid. 
 
 Rent apportioned between the exe- 
 cutor and remainder-man of te- 
 nant m tail, in what case. 183 
 
 between the representative and 
 
 the remainder-man. 184 
 
 Case, in which the statute 11 G.2. 
 relative to apportionment does not 
 apply. ibid. 
 
 Interest of a mortgage is apportion- 
 able. ibid. 
 
 So, where lessee accepts a new lease 
 of part of the land demised, the 
 rent shall be apportioned. 185 
 
 So in case of a reversion granted 
 of part of the land leased, ibid. 
 
 So, where land and a flock of sheep 
 were demised, in what case. ib. 
 
 Lessee may be sued for apportion- 
 ment of rent, in what cases. 186 
 
 Appurtenant.^ 
 
 Explanation of the term. 223 
 
 Common appurtenant is claimable 
 
 by an existing grant as well as by 
 
 prescription. ibid. 
 
 " Appurtenances," comprehend 
 
 what. 98 
 
 Assets. 
 
 See Administrator and Executor, and 
 Heir. 
 
 Assignment. 
 
 An assignment, what. 264 
 
 Who may assign and what may be 
 assigned. ibid. 
 
 Registering a lease is not registering 
 an assignment. 17 
 
 A lessee cannot assign afler an ac- 
 tual ouster, unless he hath re-en- 
 tered. 265 
 
 The conusee of a statute may assign 
 though ousted by the conusee of 
 a prior statute. ibid. 
 
 A power coupled with an interest 
 may be assigned. ibid. 
 
 But a bare power is not assignable, ib.
 
 604 
 
 INDEX. 
 
 Where a lease of lani3s and a grant 
 of the woods are to the same les- 
 see, assignment of the one does 
 not also pass the other. 265 
 
 Generally, a chose in action, bare 
 right or possibility, are not assign- 
 able, ibid. 
 
 Of assignment by a patron. 69 
 
 Ofthe assignment of offices. 101,264 
 
 An assignment made by what words. 
 
 265 
 
 The proper covenants on the part of 
 the assignor and assignee. 267 
 
 Of covenants not to assign. 249 
 
 Such a covenant is not implied by a 
 contract to grant a lease with com- 
 mon and usual covenants. 250 
 
 What shall be good as an under- 
 lease, and not an assignment. 251 
 
 If lessee alien without licence, equity 
 will not relieve him. ibid. 
 
 An assignee is liable only in respect 
 of his possession, in what case. 268 
 
 But under an absolute assignment of 
 a term, he is liable before he takes 
 possession, for what reason, ibid. 
 
 A mortgagee is such an assignee. 
 
 ibid. 
 
 If a lessee assign more than his term, 
 it is good pro tanto, and he does 
 not gain a tortious reversion. 266 
 
 Covenants how affected by an as- 
 signment, ibid. 
 
 Of the operation and effect of the 
 word " assigns." 267 
 
 The lessee continues always liable, 
 notwithstanding any assignment. 
 
 ihid. 
 
 So, the executor or administrator of 
 the lessee is liable to the grantee 
 of the reversion on covenants that 
 run with the land. 268 
 
 The lessee's executor is liable to co- 
 venant for rent, though the les- 
 see's estate be discharged by act 
 of parliament. ibid. 
 
 If the lessee assign the lease, he may 
 assign a bond lor the performance 
 of covenants. ibid. 
 
 But it must be done before any co- 
 venant be broken. ibid. 
 
 The assignee takes subject to all the 
 equity td which the original party 
 was subject. ibid. 
 
 He is bound, therefore, to perfornj 
 all covdiiinls annexed to the es- 
 tate or for the benefit of it. ibid. 
 
 He is bound by covenants that htr» 
 with the land, though he be not 
 named i»y the word " assigns." 
 247, 268, cVc 456, 46i 
 
 So, if it be a lease of tithes. 270 
 
 The assignee is liable in equity 
 though the privity of contract be 
 destroyed at law. 269, 435 
 
 A court of equity refused to compel 
 an assignee of a term on mcu't- 
 gage to discover his assignment. 
 
 81 
 
 If a mortgagor and mortgagee make 
 a lease in which the covenants for 
 rent and repairs are only with the 
 mortgagor and his assigns, the 
 mortgagee's assigns cannot main- 
 tain an action for the breach of 
 such covenants, on the stat. 32 
 H. 8. c. 34, 80 
 
 The assignee of part of the thing 
 demised is liable to an action of 
 covenant. 270 
 
 But he is not liable for the whole 
 rent. ibid. 
 
 Yet the lessee is liable for the whole 
 rent, though he assign part of the 
 premises. ibid. 
 
 If the assignee assign over, he is not 
 liable to an action of covenant, 
 though his assignee have not taken 
 possession. 269 
 
 Notice of an assignment over need not 
 be given to the reversioner. 271 
 
 The assignee is liable upon a cove- 
 nant though the lease expires, in 
 what case. ibid. 
 
 The assignee is not liable on a colla- 
 teral covenant. 272 
 
 The assignee is not bound by a co- 
 venant not to assign generally, for 
 it is personal. 273 
 
 Debt and covenant against an as- 
 signee, diflerence between. 273 
 
 An assignee of the lessee shall not 
 take advantage of an agreement 
 for a renewal of a lease, in what 
 case. 274 
 
 An assignee shall i>ot have an action 
 for a breach before his own time. 
 
 ibid. 
 
 At common law, the grantee or as- 
 signee of a reversion could not 
 take advantage of a condition of 
 re-entry. 276 
 
 What is sufficient to ctJiislilute the 
 possession of an assignee. 32S
 
 INDEX. 
 
 605 
 
 The assio-nee of pari ol" tbe csUle of 
 the reversion may lake advantage 
 of thecoiuVilion.* 273 
 
 But not the grantee of part of the 
 reversion. ibid. 
 
 Whoever comes in by act of the 
 party is an assignee within the 
 statute. ibid. 
 
 But such as come in merely by act 
 of law shall not take the benefit of 
 the statute. ibid. 
 
 The grantee shall not take advantage 
 of a condition before notice to the 
 lessee. ibid. 
 
 But he may of a covenant. ibid. 
 
 The grantee or assignee may take 
 advantage, of what conditions. 
 
 27 G 
 
 The assignee of a reversion may 
 brintr covenant again>t the exe- 
 cutor of the lessee, or assignee ot 
 the term, for a breach committed 
 after assignment, in what case. 
 
 280 
 
 Equity will not compel an assignee 
 of a mortgagee to repair who 
 never entered, though he is liable 
 at law. 276 
 
 What cannot be supported as an as- 
 signment, deemed good as an 
 under-lease. 277 
 
 What amounts to an assignment. 
 
 ibid. 
 
 The assignees of a bankrupt are not 
 
 liable for rent unless they take 
 
 possession. 
 
 284 
 
 Neither are they liable for arrears 
 . subsequent to the bankruptcy. 
 
 ibid. 
 
 A devisee is an assignee in law, and 
 liable to covenants that run with 
 the land. 287 
 
 Intermediate assignments need not 
 be set out in covenant against an 
 assignee. 319 
 
 Though the plaintiff be himself an 
 assignee. ibid. 
 
 So the breach need not extend to 
 assigns, where the action of cove- 
 nant is against the original lessee. 
 
 ibid. 
 
 The distinction proceeds from what 
 difference, ibid. 
 
 But the plaintiff must state all the 
 intermediate assignments, down 
 to himself. ibid. 
 
 Yet where he shews a legal assign- 
 
 ment he need not name himself 
 
 assignee. 430 
 
 An assignee is liable jointly with the 
 
 lessee, for debt for rent. 315 
 
 The assignee of a lessor who assigns 
 
 the rent only may bring debt for 
 
 the arrears. ibid. 
 
 The grantee of a reversion cannot 
 
 have debt against a lessee who has 
 
 assigned over. 310 
 
 Otherwise, if the lessee assign part 
 
 only of the land. ibid. 
 
 A lessee who assigns to a stranger 
 
 may have debt for the rent. ibid. 
 
 In debt for rent against an ^^signee, 
 
 the venue must be laid where the 
 
 land lies. 318 
 
 So also if debt be by the assignee 
 
 of the lessor against the lessee. 
 
 ibid. 
 But it is otherwise in covenant which 
 is transitory. ibid. 
 
 In debt for rent (as in covenant) by 
 the assignee of the reversion a- 
 gainst the lessee, all mesne assign- 
 ments mr.stbe set forth. 319 
 In action of debt for rent incurred 
 after lessee's death, his executor, 
 &c. may be charged by the lessor, 
 cither as such, or as assignee, in 
 w hat case. 329 
 So, in covenant under similar cn*- 
 cumstances. ibid. 
 An assignee cannot distrain, in what 
 case. 294 
 Of the assignment of waste (see tit. 
 
 waste.) 
 Of the assignment of a replevin bond. 
 
 499 
 
 Assumpsit. 
 
 It will lie for recovery of damages, 
 in case of non-performance of an 
 agreement. 26 
 
 As for the tenant's neglect to repair. 
 
 43S 
 
 Averments, what are material and 
 what are not. ibid. 
 
 In what case they are put in issue 
 and in what they are not. ibid. 
 
 Assumpsit lies also for rent, where 
 the demise is not by deed. 340 
 
 Of the action by an executor for 
 rent due in right of his testator 
 and in his own right. 343 
 
 The action may be maintained by the
 
 606 
 
 INDEX. 
 
 grantee of an annuily after notice 
 to the tenant of a recovery in 
 ejectment. 341 
 
 But an action for use and occupa- 
 tion and an ejectment cannot be 
 applied at the same time. 342 
 
 The defendant is hable to this action 
 wherever he enjoys premises as 
 tenant to the plaintiff by his per- 
 mission. 341 
 
 The defendant cannot controvert the 
 plaintiff's title. 342 
 
 But he may give evidence to explain 
 the holding. ibid. 
 
 Of the pleas in this action. 344 
 
 If the assignee surrender to the 
 original lessor, though he reserves 
 a sum in gross annually he cannot 
 distrain for that or the original 
 rent, but may recover the sum by 
 assumpsit. 294 
 
 This action may be brought on an 
 agreement to assign a lease. 26 
 
 Attachment. 
 
 An attachment for costs is the only 
 remedy against a tenant who re- 
 fuses to confess lease, &c. in eject- 
 ment, after he has entered into 
 the rule. 380, 403 
 
 An attachment will be granted a- 
 g-ainst parties privy to an altera- 
 tion of a sheriff's warrant whereby 
 goods are removed wrongi'uUy. 
 
 4t)2 
 
 Attornment. 
 
 Rendered now unnecessary in al- 
 most every case. 145 
 
 Avoijory. 
 See Replevin. 
 
 AutJiority. 
 
 A party authorized to demise by in- 
 denture must make the leases in 
 the name and style of his princi- 
 pal. 89 
 
 The proper conclusion of leases 
 made pursuant to an authority. 
 
 90 
 
 Cer«:monics requisite. ibid. 
 
 An authority only, and not an inter- 
 <st, how giv(n by (h vise. iOid, 
 
 A special agent cannot bind liis prin- 
 cipal beyond his authority. 9(J 
 An act executed contrary to au- 
 thority is utterly void. ibid. 
 An authority need not be produced. 
 
 ibid. 
 Yet a power ought to be produced. 
 
 ibid. 
 See Bailiff. 
 
 Award. 
 
 An award (by arbitrators) will give 
 a title to ejectment, in what case. 
 
 35G 
 
 Bailiff. 
 
 Powers vested in a bailiff as to leases, 
 
 &c. 91 
 
 The landlord's bailiff may distrain. 
 
 296 
 Of conusance as bailiff 
 See Replevin. 
 
 Bankrupt. 
 
 The tenant's liability to pay rent 
 subsists though he become bank- 
 rupt. 240 
 
 If a landlord prove his debt and dis- 
 claim any security, he waives his 
 right to distrain, for rent due be- 
 fore bankruptcy. 283 
 
 If his debt by delay become stale, he 
 is considered but a common cre- 
 ditor, ibid. 
 
 The assignees are not entitled to a 
 
 'covenant for the renewal of a 
 
 lease. ibid. 
 
 Lands taken in execution cannot be 
 assigned. 284 
 
 A covenant in a lease that it shall be 
 void on a conmiission of bankrupt 
 issuing is good. 254 
 
 But they may assign a lease though 
 it contains a covenant that the 
 lessee, &c. shall not assign. 253 
 
 The assignees of a bankrupt may 
 maintain ejectment for a term 
 of years or for lands which be- 
 longed to the bankrupt. 355
 
 INDEX. 
 
 (JOT 
 
 The sale of a bankrupt's estate bars 
 an intail, in what case. 356 
 
 Bankruptcy is not a plea in bar to an 
 action for mesne profits. 415 
 
 Of costs where the defendant be- 
 came a bankrupt, after a recovery 
 in ejectment, and before an action 
 for mesne profits. ibid. 
 
 Baron. 
 
 The husband has an absolute power 
 
 over his wife's chattels, and may 
 
 dispose of them in his life-time. 
 
 278, 279 
 
 He may make a lease to commence 
 after her death. 73 
 
 But if he dispose not of them, her 
 cliattels real survive to her. 
 
 73, 279 
 
 He cannot devise chattels in right of 
 his wife. 279 
 
 A term in right of his wife is ex- 
 tendible for the debts of the hus- 
 band, and is liable to other legal 
 dispositions. ibid. 
 
 What shall be a disposition of a 
 term in right of his wife. 73, 279 
 
 He may sell a term of years in her 
 right, as executrix of her former 
 husband. 73 
 
 But he cannot grant a rent, &c. out 
 of the term, so as to bind the 
 wife surviving. 279 
 
 Nor can he grant the herbage, ibid. 
 
 So, he will be restrained from sell- 
 ing a term in her right, after a 
 divorce a mensd et thoro. ibid. 
 
 Where the cause of action will sur- 
 vive to the wife, the husband 
 should join. 283 
 
 In other cases also, it is adviseable 
 to join. ibid. 
 
 The wife must join in an ejectment, 
 in what case. 280 
 
 If disseised of her land, he must join 
 with her for the recovery of it. 
 
 282 
 
 He is liable for use and occupa- 
 tion of premises by his feme 
 covert. 94 
 
 Of leases made by the husband and 
 wife jointly. 280 
 
 Where lease was to the wife, dum 
 
 sola, payment must be to the 
 husband. 282 
 
 In case of cov^enant to repair, or for 
 further assurance, how the hus- 
 band must proceed. ibid. 
 
 Husband compellable to produce his 
 feme covert, in what case. 108 
 
 He may surrender an estate in right 
 of his wife, alone, or with her. 
 
 129 
 
 But, if she be tenant in dower, &c. 
 the surrender is good for his life 
 only. ibid. 
 
 His surrender not good, in what 
 case. ibid. 
 
 The husband or his executors shall 
 have the emblements, though the 
 land be his wife's, if she die be- 
 fore severance. 230 
 
 But, if they are joint-tenants, she 
 shall have it by survivorship, ibid. 
 
 Husband shall have emblements, 
 though divorced, in what case. 
 
 228 
 
 Of emblements, if she be endowed 
 of lands sown. 230 
 
 An avowry by husband and wife, for 
 rent due to the wife alone before 
 coverture, was held good. 487 
 
 So, an avowry by him alone is good, 
 if it appear that he had a right to 
 distrain. ibid. 
 
 Avowry in the name of himself and 
 wife, in what case necessary, ibid. 
 
 Bond. 
 
 Where bond is for performance of 
 covenants in a lease, if the lessee 
 assign the lease, he may also 
 assign the bond. 264 
 
 A bond for non - performance of 
 covenants is forfeited, in what 
 case. 235 
 
 All bonds or covenants, tending to 
 frustrate the provisions of thestat. 
 IS & 18 £/ez. shall be void. 83 
 
 A bond, accepted by the landlord 
 for rent, does not extinguish it, 
 for the rent is higher. 322, 503 
 
 But a judgment, obtained upon such 
 bond, is an extinguishment of the 
 rent. ibid. 
 
 See Covenant, Debt, Ejectment, Re- 
 plevin, Sfc. 
 
 S
 
 603 
 
 INDEX. 
 
 . Breach. 
 See Assiunpsit, Covenant, Debt, &c. 
 
 Building-Leases. 
 
 Equity will decree specific perform- 
 ance of an agreement to build. 
 
 24 
 But not of a general covenant to ex- 
 pend money in building. ibid. 
 Nor, on a covenant to repair, ibid. 
 But chancery will decree building- 
 leases for the benefit of an infant. 
 
 77 
 
 Case. 
 
 Trespass on the case will lie for nui- 
 sances to the injury of the lessor's 
 reversion. 456 
 
 See Replevin. 
 
 So, an action on the case in the 
 nature of waste will also lie for 
 waste, committed on the premises 
 demised, 450 
 
 So this action will lie for a nuisance 
 to the habitation of another, &c. 
 
 455 
 
 If a nuisance be detrimental to the 
 inheritance, the reversioner shall 
 have an action on the case. 456 
 
 This action lies against the continu- 
 ator, as well as the original erector 
 of a nuisance. ibid. 
 
 As against the assignee of B. for con- 
 tinuing the stopping of lights. 
 
 ibid. 
 
 Of the declaration in an action on 
 the case for a nuisance. 457 
 
 Of the pleas in an action on the case 
 for a nuisance. 458 
 
 In an action on the cr.se for rescue 
 of a dis.trcss, plaintiff' must state 
 what. 515 
 
 See Distress, Possession, Replevin, 
 Reversion, Sheriff, Sfc. 
 
 Cestui que Vie. 
 See Life Estate, for. 
 
 Chattel. 
 See Administrators, ^'c. 
 
 Church. 
 
 Of the liability to repair cluircbe.*, 
 and the right to pews thereiiT. 
 
 539 
 
 A rector may cut down timber for 
 the repair of the parsonage house, 
 or chancel, &c. 224 
 
 Ejectment w ill lie for a church, or a 
 chapel, which must however be 
 demanded by the name of a mes- 
 suage. 359, 363 
 
 The action will also lay for " a place 
 called the vestry in D." 360 
 
 Chtirchwarde?is. 
 
 See Overseers. 
 
 Close. 
 
 Ejectment will not lie for a close. 
 
 360 
 Nor for part of a close. ibid. 
 
 But, for a close called D. and speci- 
 fying its contents, held good. ibid. 
 
 Common. 
 
 A right of common is an incorporeal 
 hereditament. 100 
 
 Of the right to demise part of the 
 waste or common of a manor, and 
 the application of the net-rent. 
 
 ibid. 
 
 Right of common subsists, notwith- 
 standing part of a waste be con- 
 veyed by the lord. ibid. 
 
 Common of pasture isdemiseable. 
 
 ibid. 
 
 Of common of estovers. 231 
 
 A commoner cannot abate trees 
 planted by the lord on a common, 
 though a sufticiency be not left. 
 
 226 
 
 His remedy is by action. ibid. 
 
 But if they be planted so as to de- 
 stroy the common, he may abate 
 them. ibid. 
 
 The distinction in such cases, ibid. 
 
 An ejectment will he for common 
 appendant or appurtenant. 359 
 
 But ibr comnjon per cause de vici- 
 nage, it will not lie. ibid. 
 
 A right of common cannot be given 
 in evidence under the general 
 issue in trespass quare clausum 
 fregU. 505
 
 INDEX. 
 
 609 
 
 See Estovers, Appendant, Appurte- 
 nant, 8(c. 
 
 Gondii ion. 
 
 A condition, what. 236 
 
 How created, and interpreted, ibid. 
 
 Of conditions precedent, and sub- 
 sequent, ibid. 
 
 A condition and a proviso are syno- 
 nymous terms. ibid. 
 
 Conditions and covenants differ 
 much. ibid. 
 
 A proviso with no penalty annexed 
 is a condition. ibid. 
 
 If a penalty be annexed it is a cove- 
 nant, ibid. 
 
 A condition may be annexed, to 
 what estate. ibid. 
 
 To take advantage of a condition, 
 where the party may enter, he 
 must enter. 2G2 
 
 If he cannot enter, he must make 
 claim. ibid. 
 
 He who enters for a condition broken 
 shall be seised in his first estate. 
 
 ibid 
 
 Acceptance of rent by lessor, after 
 condition broken, will bar his 
 entry, in what case. 250 
 
 A condition not to assign, not broken 
 by an involuntary act of the lessee, 
 in what case. 253 
 
 Of the condition for re-entry on 
 non-payment of rent. 256, ^c. 
 
 The party bound to perform a con- 
 dition is not obliged to go to any 
 other than the place appointed. 
 
 257 
 
 Nor is the party receiving bound to 
 accept performance elsewhere. 
 ibid, 313 
 
 Though acceptance at another place 
 will be good. ibid. 
 
 See Acceptance, Covenant, Eject?nent, 
 Entry, and Re-entry, Forfeiture,^c. 
 
 Corifirmation. 
 
 What acts amount to a confirmation 
 of a voidable lease. 34 
 
 Of confirmation as to tenants in tail 
 and their issue. ibid. 
 
 A lease granted by way of confirma- 
 tion does not require livery of 
 seisin. 106 
 
 See Acceptance, £fc. 
 
 Conusance. 
 
 See Replevin. 
 
 Conusce. 
 See Execution. 
 
 Co-parceners. 
 
 They are on the same footing as 
 joint-tenants. 87 
 
 They have but one freehold. 3G8 
 
 But in respect to their disposing 
 power, tliey have separate rights. 
 
 ibid. 
 
 Either of them may mortgage their 
 undivided part or share. 80 
 
 One cannot maintain waste on the 
 statute of Westminster against the 
 other. 443 
 
 But as they make but one heir, they 
 must join in an avowry for rent. 
 
 484 
 
 In ejectments by co-parceners, the 
 possession of one is the possession 
 of the other, so as to prevent the 
 statute of limitations running 
 against either of them. 352 
 
 Whether co-parceners can join in a 
 lease for the purpose of bringing 
 an ejectment. 368 
 
 The usual mode of making a lease 
 for such purpose. ibid. 
 
 See Partition. 
 
 Copyholders. 
 
 A copyholder may maintain eject- 
 ment. 358 
 
 Proof necessary by copyholder in 
 ejectment. ibid. 
 
 Copyholder's power of leasing.33,i^c. 
 
 Lessee of a copyholder, with license 
 may assign or underlet. ibid. 
 
 A copyholder in fee extinguishes his 
 copyhold by taking a lease for 
 years of it. 131 
 
 But his copyhold is only suspended 
 by a lease of the manor. ibid. 
 
 Every one having lawful interest in a 
 manor may grant copyholds, in 
 what case. §6 
 
 Therefore a steward, ^c. may grant. 
 
 ibid. 
 
 But a tenant at will cannot. ibid. 
 
 Admittance after forfeiture, is a 
 waiver. ibid. 
 
 R r
 
 610 
 
 INDEX. 
 
 Statute of limitations whether a bar 
 to the lord's entry. 86 
 
 A complete title does not vest in a 
 surrenderee till admittance. 358 
 
 So that the heir of the surrenderer 
 may till then bring an ejectment. 
 
 ibid. 
 
 But if a surrender be made, the ad- 
 mittance shall relate to that time. 
 
 ibid. 
 
 It is a jvood custom that copyhold- 
 ers shall have the loppings of 
 pollingers. 233 
 
 The lord cannot, in such case, cut 
 the trees down. ibid. 
 
 So, a copyholder may, by the com- 
 mon law, cut offthe under boughs, 
 though not the top boughs, ibid. 
 
 But a copyholder has only a posses- 
 sory property in timber trees. 
 
 If severed therefore they belong to 
 the lord. ibid. 
 
 Of a right for a copyholder to cut 
 down trees by custom. ibid. 
 
 Every copyholder may of common 
 right take the necessary estovers 
 or botes. 235 
 
 But to enable him to take them on 
 other lands, a special custom must 
 be shewn. ibid. 
 
 A copyholder may bring trespass 
 against the lord if he cut down so 
 many trees as not to leave suffi- 
 cient estovers. ibid. 
 
 See Admittance, Common, Cust07n, 
 Ejectment, Forfeiture, Trespass, 
 Waste. 
 
 Corporations. 
 
 Their acts must be by deed, in what 
 
 cases. 61 
 
 Of a corporation aggregate, lessor 
 
 of the plaintiff in ejectment. 357 
 Of a corporation sole bringing an 
 
 ejectment. ibid. 
 
 See Deed, Ecclesiastical Persons, 
 
 Ejectment, &c. 
 
 Corn. 
 See Emblements, Gleaning, Rent. 
 Corrodics. . . . . 102 
 
 Costs. 
 
 See under the titles of the respective 
 actions. 
 
 Covenant. 
 
 Difference between covenants and 
 conditions. 236 
 
 A covenant is either in law or deed, 
 implied or expressed. 232 
 
 An implied covenant, what. ibid. 
 
 Of an implied covenant for quiet en- 
 joyment, ibid. 
 
 A covenant is implied that lessor will 
 use the land in a husbandmanlike 
 manner. 233 
 
 So, in case of a house, that the te- 
 nant shall keep it in repair ibid. 
 
 Whether one who has an upper- 
 room must repair the roof, or one 
 having a ground floor must repair 
 the foundation. 234 
 
 A covenant is implied that lessee 
 shall pay his rent. ibid. 
 
 Except a fine or other consideration 
 were given for the term. ibid. 
 
 Implied covenants are inherent, or 
 appertain to the land. ibid. 
 
 An implied covenant is controuled 
 within the limits of an express 
 one. 234 
 
 An express covenant, what. 235 
 
 Covenants are either real or per- 
 sonal, ibid. 
 
 Covenants real, run with the land, 
 and bind accordingly. 235 
 
 Covenants personal regard some in- 
 dividual whom it benefits, or 
 charges. ibid. 
 
 Of the construction of covenants. 
 
 255 
 
 Of an express covenant for quiet 
 enjoyment. 238 
 
 Of the covenant of payment of 
 rent. 240 
 
 Of the covenant to pay taxes. 243 
 
 Of the covenant to cultivate land. 
 
 244 
 
 Of an express covenant to repair. 
 
 ibid. 
 
 Of a covenant against accidental 
 fire. 245 
 
 Of a covenant to reside upon the 
 premises. 248 
 
 Of a covenant not to permit trade* 
 to be carried on. ibid^
 
 INDEX. 
 
 Gil 
 
 Of the covenant not to assign. 249 
 
 Of a covenant for forfeiture, calicd 
 nomine picmv. 241 
 
 Of a covenant to surrender land for 
 the purpose of building;-. 249 
 
 Of the covenant to in.sure. 255 
 
 A covenant is sometimes inserted 
 
 ' for payment of a fine on renewal 
 
 of the lease. 241 
 
 Of a covenant for the renewal of a 
 lease. 135 
 
 A covenant, how affected by an act 
 of parliament. 263 
 
 Covenants in general and covenants 
 Becured by a pen.ilty, dininnce 
 between. 263 
 
 A covenant may be dividaljle and 
 follow the land. 269 
 
 The lessee is entitled to emblements 
 under the lessor's covenant, in 
 what case. 228 
 
 A covenant to stand seised is evi- 
 
 , dence of the usual manner of de- 
 mising. 44 
 
 A covenant by the lessor that the 
 lessee may cut down trees, is 
 pleadable to an action for waste. 
 
 4J7 
 
 All covenants or bonds tendin<Tf to 
 frustrate the stats. 13 & 18 Eliz. 
 shall be void. 67 
 
 The covenants incident to a rever- 
 sionary interest are merged, in 
 what case. 264 
 
 Covenants, how affected by an as- 
 signment. 265 
 
 What are proper covenants in an as- 
 signment, ibid. 
 
 Covenants that run with the land 
 extend to the assigns of the les- 
 see, though "assigns" be omitted. 
 
 268 
 A covenant relating to a way goes 
 
 ^ with the thing demised and binds 
 the assignee. 271 
 
 The grantee, under stat. 32 H. 8. 
 c. 34. may take advantage of a 
 covenant without notice to the 
 lessee. -•'J 
 
 Of the extent to which an assignee 
 may take advantage of a covenant 
 under that act, see Assignment. 
 Of the action of Curenanl. 
 The covenantor is liable if he has 
 sealed the deed of demise, though 
 ihe covenantee has not sealed it. 
 
 327 
 
 The proper mode of declaring in 
 covenant, what is. 329 
 
 The effect of two joint lessees sealing 
 a counterpart and the other agree- 
 ing to the lease. 425 
 In covenant the plaintiff' may assign 
 as many breaches as he will. 433 
 As to joint and several covenants. 
 
 430 
 Of the action of covenant for rent, 
 mode of declaring, &c. 327, ^-c. 
 Of the pleas to covenant for rent. 
 
 332 
 
 INIoney may be jjaid into Court in 
 
 an action of covenant for rent. 
 
 335 
 Of the verdict and judgment. 
 
 ibid. 33G 
 Of tlie action for breach of other 
 covenants. 425 
 
 A covenant to repair after three 
 months' notice and to leave the 
 premises in repair at the end of 
 ihe term are distinct clauses. 426 
 Covenant well lies for a thing which 
 lessee agrees to let the lessor have 
 out of the demised premises, ib. 
 A copyholder is within stat. 32 //. 8. 
 c. 34. wherefore the surrenderee 
 of the assignee of the reversion 
 may maintain covenant tor non- 
 repair against the original lessee 
 of a copyholder in fee, in what 
 case. ibid. 
 
 On a breach that the house was not 
 in repair, an agreement of the 
 lessor pleaded in satisfaction is 
 bad, in what case. 433 
 
 So, on breach for not pulling down 
 part of a certain house, repair of 
 other parts of the premises at the 
 lessor's request, pleadtd in satis- 
 faction, is bad. 436 
 What is a breach of a covenant to 
 leave all the timber at the end of 
 the term. ibid. 
 Of relief by bill in equity. 507 
 
 Cusfo?n. 
 
 See Copyholders, Emblements, Esto- 
 vers, S'oiice, Sj-c. 
 
 Damages. 
 
 See under the titles of the respective 
 actions. 
 
 Rr2
 
 612 
 
 INDEX. 
 
 Damage-feasant . 
 
 Cattle damage-feasant may he dis- 
 trained till amends be made. 301 
 
 Which <:^round of distress is on the 
 principle of the law of recom- 
 pence. 514 
 
 Or tlie party injured may have an 
 action of trespass for tlie damage 
 done. ibid. 
 
 Which latter remedy is preferable if 
 the cattle have done more damage 
 than they are worth. 516 
 
 For damage-feasant, distress may be 
 made in the night, for what rea- 
 son, ibid. 
 
 See Distress, Replevin, Trespass, &,c. 
 
 Death. 
 
 See Administrator and Executor, 
 Debt, Devisee, Heir, Notice, ^c. 
 
 Debt. 
 
 An action of debt lies for rent where 
 the lease is by deed. 314 
 
 So, it lies where the lease is by wri- 
 ting without deed, or by parol de^ 
 mise. 336 
 
 Action of debt will lie for tithes, in 
 what case. 100 
 
 Of debt for rent on a lease by deed. 
 
 314 
 
 X)ebt will lie in the debet et detinet 
 against the assignee of one of two 
 lessees and the executrix of the 
 other deceased for the whole rent. 
 
 315 
 
 So, against the lessee and his as- 
 signee joint action vvill lie. ibid. 
 
 For the lessee is liable to debt for 
 rent notwithstanding his assign- 
 ment, ibid. 
 
 Excejjt the lessor accept the assignee 
 as his tenant. ibid. 
 
 What amounts to an acceptance, ib. 
 
 But the assignee is liable only while 
 in possession and for his enjoy- 
 ment, ibid. 
 
 Debt and covenant against an as- 
 signee, the difterence between. 
 
 272 
 
 The assignee of a lessor who assigns 
 his rent only may maintain debt 
 for the arrears. 315 
 
 7 
 
 But a lessor who grants a reversion 
 cannot have the action. 316 
 
 In such ca*e the grantee is entitled 
 to debt for the rent. ibid. 
 
 But the grantee even cannot have 
 debt if the lessee have assigned 
 over, for the privity of estate is 
 gone. ibid. 
 
 Otherwise if the lessee assign part 
 only of the land demised, in which 
 case he is liable for the whole rent. 
 
 ibid. 
 
 A devisee may maintain debt for his 
 share of the rent. ibid. 
 
 A lessee, who re-demises his term 
 to his lessor, surrenders, though 
 he reserve a rent, and cannot have 
 debt for rent against his lessor's 
 executor, but must seek relief in 
 equity. ibid. 
 
 Otherwise if he assign his whole term 
 to a stranger. ibid. 
 
 So, if he assign and reserve the rent 
 to himself, though not properly a 
 rent, it partakes of its nati're, 
 and debt lies for it. ibid. 
 
 The action does not lie on an ex- 
 pired lease. 317 
 
 If the lease become void on non- 
 payment debt may be brought for 
 the arrears. 316 
 
 In declaring in debt for rent on a 
 demise by deed, entry, and occu- 
 pation need not be set forth, ib. 
 
 But vide 319, 320 
 
 If rent be reserved quarterly, or 
 half-yearly, each gale is a distinct 
 debt. 317 
 
 In declaring for which the plaintiff 
 need not shew how the former 
 quarter, ^c. was satisfied. ibid. 
 
 But if he declare for part of the gale 
 of rent he must shew how the re- 
 mainder was satisfied. ibid. 
 
 Wherever rent is reserved quarterly 
 or half-yearly, the declaration 
 should state when it was due. 
 
 318 
 
 The action will not lie for half a 
 year's rent, if the rent be reserved 
 annually. ibid. 
 
 Of the action against the lessee's de- 
 visee, ibid. 
 
 If the plaintiff undertake to recite a 
 lease, any misrecital is fatal, in 
 what case. ibid. 
 
 The plaint i IF must shew by what
 
 INDEX. 
 
 G13 
 
 authority the lease was made, in 
 what case. 318 
 
 The venue is local, in what cases. 
 
 ibid. 
 In what cases it is transitory. 
 
 ibid. 320 
 Of the action against an executor or 
 administrator. ibid. 
 
 An executor may bring; debt for 
 rent before probate. 319 
 
 But he cannot declare before pro- 
 bate, or an exemplification, if the 
 probate be lost. ibid. 
 
 Declarations by executors and admi- 
 nistrators should be in the detinet 
 only. 330 
 
 Even though the rent be reserved on 
 a lease to commence at the testa- 
 tor's death. ibid. 
 In an action by an executor the de- 
 claration should contain what 
 averment. ibid. 
 How, if the action be by an admi- 
 nistrator, ibid. 
 In debt by the assignee of the re- 
 version against the lessee for rent, 
 all mesne assignments must be set 
 forth. 319 
 But in debt, as in covenant, for rent 
 by the lessor or his heir against an 
 assignee, the plaintiff need not set 
 out all mesne assignments down 
 to defendant. ibid. 
 He only need set forth the original 
 demise to the lessee. ibid. 
 Proof of possession and occupation 
 will be sufficient to charge the 
 defendant. 320 
 A party who has executed the lease 
 cannot prove it. 13 
 It must be proved by the subscribing 
 witness. ibid. 
 If the declaration be " quod cum de- 
 mississet" it is sufficient. 321 
 Of the pleas to debt for rent on a 
 demise by deed. 20 
 Of the plea of nil debet. 320, 321 
 Of the plea of nil hubuit in tene- 
 7nentis. 321 
 Of the plea of non est factum. 322 
 Of the plea of reins in arrcar. ib. 
 Of the plea of tender. 323 
 Of the plea of entry and eviction. 
 
 ibid. 
 Of the plea of infancy. 324 
 
 Of set-off. ibid. 
 
 Of the statute of hmitations. 334 
 
 Of release. 325 
 
 Of the verdict. 326 
 
 The plaintiff may have jinlgment 
 against the survivor of two de- 
 fendants, if one die. ibid. 
 
 Of debt for use and occupation. 399 
 
 It will lie against an alien. 94 
 
 Debt will lie for use and occupation 
 generally, without setting forth 
 the particulars of the demise. 337 
 
 But if the particulars be alleged, 
 they must be |)roved. 338 
 
 Of the pleas to debt for use and oc- 
 cupation. 339 
 
 Non dcmisit is the proper ])!ea. ib. 
 
 Entry and eviction is a good plea to 
 this action, but they must be tor- 
 tious, ibid. 
 
 Where to debt for rent on the de- 
 mise of three rooms, plea that the 
 plaintiff demised three rooms and 
 another, and that he entered into 
 the said other room, it was held 
 bad, because he did not traverse 
 the demise of the three rooms 
 only. ibid. 
 
 Whether infancy be a good plea. ib. 
 
 A set-off may be pleaded. ibid. 
 
 So, a tender and refusal. ibid. 
 
 So, a release. ibid. 
 
 The statute of limitations, also is a 
 good plea. ibid. 
 
 Such plea must conclude with a veri- 
 fication, ibid. 
 
 In debt on a simple contract, as this 
 is, the plaintiff may recover less 
 than demanded by his writ. ib. 
 
 Of debt on bond for the performance 
 of covenants. 326 
 
 The defendant cannot plead 7iil debet 
 to this action, for a bond acknow- 
 ledges an absolute debt. 320 
 A bond for the performance of co- 
 venants is forfeited by breach of 
 a covenant in law. 235 
 See Administrators and Executors, 
 Acceptance, Assignment, Bond, 
 Contract, Covenant, Estoppel, l)C. 
 
 Declaration. 
 
 See Pleading, and under the titles of 
 the respective actions. 
 
 Deed. 
 
 See Covenant, Debt, Delivery, Estoppel, 
 Indenture, Lease, Seal, Stamps,
 
 614 
 
 INDEX. 
 
 Delivery. 
 
 Delivery of the lease by the parties 
 or their attoniies is reqvii.sile to 
 make it vaHd. VI 
 
 Every deed is intended to be deli- 
 vered on the dav it bears date. 
 
 ihid.\\2 
 
 If the date be false or impossible, 
 the delivery ascertains the time. 
 
 ibid. 
 
 Delivery, though essential to a deed, 
 is never averred. 426 
 
 See Year.s. 
 
 Demand. 
 
 See Condition, Covenant, Distress, 
 Ejectment, Entty, Forfeiture, No- 
 tice, ^-c. 
 
 Demisc-Parol. 
 See Parol Demise. 
 
 Denizen. 9"i 
 
 Departure. 
 See Replevin. 
 
 Detainer, Forcible. 
 Sec Forcible Detainer. 
 
 Determination. 
 See Contract, Emblements, Years, ^-c. 
 
 Devastavit. 
 Ste Administrators, S^c. 
 
 Devise. 
 
 A man may devise all his lands, te- 
 nements, and hereditaments, re- 
 versions and remainders. 286 
 
 So, he may devise a rent. ibid. 
 
 So, an interest though it be in con- 
 tingency, ibid. 
 
 A devisee is an assignee in law, and 
 is liable to what covenants. 287 
 
 So, he may maintain covenant, in 
 wliat cases. ibid. 
 
 lie is in the same situation as an or- 
 dinary assignee. ibid. 
 
 A devise to a prrson as guardian, 
 gives him both an authority and 
 zn interest. 78 
 
 A devisee may distrain for rent if 
 the land be charged with a dis- 
 tress. 294 
 
 In debt for rent against the lessee's 
 devisee, the piaintifi" must shew 
 what. 318 
 
 The devisee of a tern) of years may 
 maintain ejectment to recover the 
 term demised. 355 
 
 He must shew what. ibid. 
 
 But the devisee of a freehbld may 
 maintain ejectment immediately. 
 
 ibid. 
 
 Dignities. 
 
 Dignities cannot be granted for 
 years. 102 
 
 Disclaimer. 
 
 See Forfeiture, Notice, Replevin, 
 Trespass. 
 
 Disposition. 
 Sec Baron, Feme-Covert, S(c. 
 
 Distress. 
 
 A Distress, what. 293 
 
 Of this remedy for rent. ibid. 
 
 Rent reserved immediately on a 
 lease to commence in future may 
 be distrained for. 174 
 
 Who may distrain. 294 
 
 Arrearages of rent cannot be dis- 
 trained for, if the rent be granted 
 over. 295 
 
 One joint tenant may distrain alone. 
 
 ibid. 
 
 A tenant in common may distrain 
 after notice to the tenant not to 
 pay the whole rent to his com- 
 panion, ibid. 
 
 An annuitant may distrain for rent, 
 though the term be vested inhim^ 
 self to secure the payment. 486 
 
 The legal title to the rent being in 
 a mortgagee, he may distrain, in 
 what case. 295 
 
 A bailiiF may be appointed to dis- 
 train without deed. 62 
 
 A receiver appointed by the Court 
 of Chancery may distrain, in 
 what case. 295 
 
 He must distrain in the name of the 
 party having the right to distrain. 
 
 ibid.
 
 INDEX. 
 
 615 
 
 One may distrain cattle witliout any 
 express authority, and the subse- 
 quent assent shall be retrospec- 
 tive. a9G 
 
 What things are distrainable. 297 
 
 Grain distrained must be taken to a 
 barn either on the premises, or as 
 near as may be. 298 
 
 It must also be appraised^ and, ib. 
 
 Notice given to the tenant. ibid. 
 
 Who may tender the rent and costs. 
 
 ibid. 
 
 Tools cannot be distrained. ibid. 
 
 Nor implements of husbandry, ih. 
 
 Nor beasts of the plough, or sheep, 
 except for damage-feasant. ibid. 
 
 Secus, if they be not in use, or any 
 other distress can be had. ibid. 
 
 But they are not exempt from dis- 
 tress in the case of poors-rates, 
 
 20G 
 
 Fixtures cannot be distrained. 303 
 
 Nor can any thing savouring of the 
 realty. ibid. 
 
 A temporary removal will not de- 
 stroy the privilege. ibid. 
 
 Therefore a smith's anvil, or a mill- 
 stone is not distrainable. ibid. 
 
 The rule exempting tools, 6i:c. only 
 applies to distress for rent. 300 
 
 All things on the premises are liable 
 to a distress for rent. ibid. 
 
 Except they belong to third persons 
 and are connected witli trade, ib, 
 
 A chariot standing at a livery stable 
 is liable to a distress. ibid. 
 
 But a horse carrying yarn to a wea- 
 ver, or corn to market, is not dis- 
 trainable. ibid. 
 
 Neither is the article itself. ibid. 
 
 Nor can a horse that I am riding be 
 distrained. ibid. 
 
 For it is in use at the time. ibid. 
 
 But weai'ing apparel taken off, though 
 for repose, is distrainable. 3G2 
 
 Goods in the possession of a com- 
 mon carrier are not distrainable. 
 
 ibid. 
 
 Beasts that come on the land by the 
 owner's negligence are liable to 
 distress for rent. 363 
 
 But where they come on the land from 
 the insutficiency of fences, they 
 are not liable. ibid. 
 
 Unless, they have been levant 8f 
 couchant, and notice has been 
 given, &c. ibid. 
 
 Beasts are not exempted, because 
 they are on the way to market. 
 
 363 
 
 If they be within the premises of an 
 
 inn they are protected. 302 
 
 Whether grounds belonging to an 
 
 iim be part of such premises, ib. 
 
 The privilege extends to temporary 
 
 guests only. ibid. 
 
 The goods of a tenant are liable for 
 
 a year's reiit,notwithstandiiig out- 
 
 lavvrj' in a civil suit. 301 
 
 But goods in custody of the law are 
 
 not distrainable. 303 
 
 Therefore, ihingsdistrained damage- 
 feasant are not distrainable for 
 rent. ibid. 
 
 Neither are goods sold under an 
 execution, but not removed oft" 
 the premises. ibid. 
 
 But hy statute, the goods must not 
 be removed till a year's rent be 
 paid, else the sherift' is liable. 458 
 
 The issuing a commission of bank- 
 rupt does not aftect the landlord's 
 right to distrain while the goods 
 remain on the premises. 283, 304 
 
 But if he neglect to distrain till a 
 sale, he can only come in pro 
 rata. 304 
 
 An extent however takes place of a 
 landlord's chdim. ibid. 
 
 Hov/, if a replevin come after goods 
 are sold under an execution, ibid. 
 
 Emblements or corn severed and re- 
 maining on the ground, are dis- 
 trainable, in what case. 230, 308 
 
 Things wherein a man cannot have 
 a valuable property cannot be dis- 
 trained. 304 
 
 But animals ft^rce naturw are dis- 
 trainai)le, if they be reclaimed, ib. 
 
 Deer, however, t hough /er« naturce, 
 are distrainable, in what case. ib. 
 
 Of the time, place and manner, of 
 distraining for rent. S04 
 
 A distress for rent cannot be made in- 
 the night. ibid. 
 
 The distress must be made for rent 
 in arrear. ibid. 
 
 But a custom or special agreement 
 may alter the rule of law. ibid. 
 
 A distress must not be made after a 
 tender of payuient. ibid. 
 
 A distress for rent may be made 
 after the lease has determined. 
 
 306
 
 61G 
 
 INDEX. 
 
 So, by particular custom, it may be 
 made more than six months after 
 a lease has expired. 306 
 
 A private person cannot distrain 
 beasts off his own land, or on the 
 high road. ibid. 
 
 But the lord may distrain off his 
 land, in what case. 307 
 
 A distress on one part of the pre- 
 mises is good only for one rent. 
 
 ibid. 
 
 Therefore, there must be as many 
 distresses as there are demises, ib. 
 
 But in case of lands in different 
 counties under one demise and at 
 One rent, one distress is sufficient. 
 
 ibid. 
 
 Of distraining where goods are clan- 
 destinely removed off the pre- 
 mises. 306 
 
 Seizure of some goods as a distress, 
 a good seizure of all. 307 
 
 If the distress be inadequate to pay- 
 ment of the rent, the landlord 
 may distrain again. ibid. 
 
 Otherwise, if a sufficient distress be 
 on the premises. ibid. 
 
 So, one who has an entire duty shall 
 not split the sum and make more 
 than one distress. ibid. 
 
 Except indeed he mistake the value 
 of the goods seized. ibid. 
 
 For an excessive distress a man is 
 not liable to a criminal prosecu- 
 tion, ibid. 
 
 Neither can a general action of tres- 
 pass be maintained. 308 
 
 But the remedy is by special action 
 on the case on the stat. of Marl- 
 bridge, ibid. 
 
 Even that cannot be resorted to if a 
 remedy lie at common law. 309 
 
 If a distress be made for rent where 
 more is due, double the value, ^c. 
 may be recovered by trespass or 
 case. ibid. 
 
 A bond does not extinguish a debt 
 for rent. 323 
 
 But a judgment obtained upon it 
 does. ibid. 
 
 Trespass lies for an unfounded dis- 
 tress in any other case. 505 
 
 If a distress be made without cause, 
 the owner may rescue the dis- 
 tresH. ,510 
 
 l':xrc[)t it be impounded. ibid. 
 
 I low a distress is to be used. 308 
 
 Notice of the distress and wherefore 
 taken is to be given to the owner. 
 
 308 
 
 The pound-keeper is not liable to 
 trespass for receiving a distress 
 though the taking be tortious. 309 
 
 If the distress die, the distrainer may 
 either distrain again, or bring 
 trespass. 310, 515, 594 
 
 If the pound be broken, the dis- 
 trainer may retake the distress 
 wherever he finds them. ibid. 
 
 A rescous, what. 310 
 
 Remedies for pound-breach and res- 
 cous. ibid. 
 
 On a distress being taken for rent, 
 the tenant or owner must replevy 
 in five days after notice having 
 been given him. 311 
 
 If the landlord fail to remove the 
 goods within five days, he is a 
 trespasser. ibid. 
 
 But as the five days include the day 
 of sale, the goods may be removed 
 on the sixth day. ibid. 
 
 Notice to the owner is sufficient, as 
 against him. 312 
 
 An irregularity in the process does 
 not now make the party a tres- 
 passer (lb initio. 510 
 
 If the goods remain beyond the five 
 days the landlord cannot justify 
 entering the house to remove 
 them. 313 
 
 A distress for a long arrear of a 
 rent-charge is relieved against in 
 equity, in what case. 302 
 
 A distress for rent after a forfeiture 
 aftirms the lessee to have lawful 
 possession. 259 
 
 So, a distress for rent after the ex- 
 piration of a notice to quit is a 
 waiver of the notice. 305 
 
 A party may distrain for rent, 
 though he has taken a note of 
 hand lor it and given a receipt, 
 for till it be paid, it does not alter 
 the debt. 323 
 
 See Demand, Notice, Poors- Rate, 
 Years. 
 
 Doiaer. 
 
 See Widow's Estate. 
 
 Sec Way. 
 
 Easement.
 
 INDEX. 
 
 617 
 
 Ejectmeni. 
 
 History of the action. 346 
 
 The antient practice. 347 
 
 When now requisite. 409 
 
 The modern practice. 348 
 
 Who may have this action. 350, ^c. 
 Lessor must have a lejjal title, and 
 right of entry. 350, 351, 368 
 For what this action will lie. 359 
 Of the action when the tenant is in 
 possession. 3G3 
 
 Proceedings, how commenced. 364 
 Venue. ibid. 
 
 Demise, how to be laid. 365, 368 
 Entry, how to he laid. ibid. 
 
 Ouster, how to be laid. 366 
 
 Actual entry, when necessary. 
 
 366, 380 
 What term should be declared on. 
 
 367 
 Of amending the declaration. 369 
 (^f the service of the declaration. 
 
 370 to 374 
 
 Of moving for judgment against the 
 
 casual ejector. 374 
 
 Of the landlord's right to defend 
 
 this action. 377 
 
 Of the time of admitting him to 
 
 defend. 378 
 
 Who may defend as landlord. 
 
 377, 379 
 Of admitting the tenant to defend. 
 
 376 
 Of the consolidation rule. 379 
 
 Of the appearance. ibid. 
 
 Of the common consent rule. 380 
 How drawn in case of joint tenants, 
 ti'c. 381 
 
 Attachment lies for non-perform- 
 ance of it. ibid. 
 Proceedings, when stayed till secu- 
 rity for costs be given. 382, 383 
 When on an ejectment under stat. 
 4 G. 2. c. 28. or 7 G. 2. c. 20. 
 
 382, 418 
 When till the costs of a former eject- 
 ment are paid. 384 
 Of particulars of breaches. 386 
 Of the pleas in this action. ibid. 
 The death of the plaintiff shall not 
 abate the action. 389 
 How to proceed if either party die 
 after issue joined. ibid. 
 Of the evidence in this aetion- 
 
 ibid. 
 
 Lessor must rely on the strength of 
 his own title. 890 
 
 Tenant must not dispute his land- 
 lord's title. .391 
 But may shew it has expired. 392 
 Of the evidence in ejectment for a 
 rectory. ibid. 
 Of the evidence by the heir at law. 
 
 393 
 Of the doctrine of presumption, ibid. 
 Of ejectments against devisees. 395 
 Marriage, how proved. ibid. 
 
 Of the practice as to the general re- 
 ply in this action. ibid. 
 Of evidence by guardian in socage. 
 
 396 
 By tenant by elegit. ibid. 
 
 By conusee of statute merchant, ibid. 
 By the lord of a manor for a for- 
 feiture. 397 
 What witnesses are incompetent by 
 reason of interest. 397, 398 
 Of the verdict. 400 
 Of the judgment. 401 
 Of the damages. 403 
 Of the costs. ibid. 
 Of the execution. 404 
 Of the writ of habere facias posses- 
 sionem. 405 
 Of the writ of scire facias. 407 
 Of the writ of error. 408 
 Of this action when the possession 
 is vacant. 409, 423 
 When a corporation is lessor. 41 1 
 When the proceedings are in an 
 inferior court, ibid. 
 Of a second action of ejectment. 416 
 Of the action of ejectment upon the 
 
 Stat. 4 Geo. 2. c. 28. s. 2. 
 Proviso as to mortgagees. 419 
 
 Of proceedings in equity. ibid. 
 
 Intent f f the statute. 420 
 
 Proceedings when stayed under. 
 
 421 
 
 Effect of proviso that rent shall be 
 
 lawfully demanded. ibid. 
 
 Affidavit necessary in proceedings 
 
 on this statute. 422 
 
 Actual entry not necessary. ibid. 
 
 Of the remedy for the landlord 
 
 under stat. 11 G. 2, c. 19, when 
 
 the premises are vacant. 423 
 
 Extended to what cases by 57 G. 3. 
 
 c. 52. 
 See Acceptance, Administrators, Sfc. 
 Assipiment, Attachment, Barikrupt,
 
 618 
 
 INDEX. 
 
 Baron, Church, Common, Condi- 
 tion, Confirvuition, Copyholders, 
 Corporation, Day, Demand, De- 
 vise, Ecclesiastical Persons, For- 
 feiture, Mesne Frojits, Notice, ^c. 
 
 Elegit. 
 See Ejectment and Execution. 
 
 Emblements. 
 
 Thedoclrine of emblements extends 
 to what things. 226 
 
 Who are entitled to the emblements, 
 and who are not. 227 
 
 Emblements are grantable and the 
 donee after the grantor's death 
 may cut and take them away. 228 
 
 Difference respecting emblements as 
 applied to tenants for life and te- 
 nant for years. ibid. 
 
 In case of lessor's entry before sow- 
 ing, the lessee at will shall not 
 have the costs of ploughing and 
 manuring. 229 
 
 ^ Of emblements where a proviso is of 
 ' re-entry if the lands be let to til- 
 lage without license. ibid. 
 
 Of emblements where a husband 
 held lands for life in right of his 
 wife. ibid. 
 
 Of emblements where such husband 
 sows and dies. ibid. 
 
 The wife, if joint-tenant with her 
 husband, shall take the emble- 
 ments by survivorship. ibid. 
 
 Of emblements if a widow be en- 
 dowed with lands sown. 230 
 
 Case in which a daughter shall have 
 
 '■ the emblements though a son be 
 
 born. ibid. 
 
 ''"Of emblements in case of a tenant 
 
 by statute merchant. ibid. 
 
 Of lands sown being delivered in 
 execution. ibid. 
 
 How, where judgment is afliirmed 
 on error. ibid. 
 
 One who enters by title paramount 
 shall have the eniblenients. ibid. 
 
 IngKss, egress, and regress, accom- 
 pany a right to enibletnents. 230 
 
 Emblements are distinct from the 
 real estate in the land, in what re- 
 
 , . spects. ibid. 
 
 In what respect they are considered 
 as personal property. ibid. 
 
 Emblements may be distrained for 
 rent arrear. 231 
 
 See Gleaning. 
 
 Entry and Re-entry, 
 
 Entry upon an estate generally is an 
 entry for the whole. 262 
 
 In leases for years or other chattel 
 interests actual entry is requisite 
 to vest the estate in the lessee. 
 
 117 
 
 All future interests are at common 
 law to be executed by entry of 
 the lessee. 151 
 
 Before entry lessor could not grant 
 away the reversion, eo nomine, 
 except in what case. 117 
 
 The lessee may release the rent re- 
 served before entry. ibid. 
 
 Whether the lessor can grant away 
 the reversion before entry, ibid. 
 
 The lessee's interesse termini is grant- 
 able to another. 118 
 
 The lessee may enter though the 
 lessor die first. ibid. 
 
 Entry by the tenant serves the pur- 
 pose of notoriety. ibid. 
 
 The estate is vested in the lessee by 
 his entry, and he is possessed of 
 the term. ibid. 
 
 An entry by one tenant in common 
 is good for all, in what case. 352 
 
 A lease for life on condition cannot 
 cease without entry. 237 
 
 Otherwise of a lease for years ipso 
 facto void on a breach. ibid. 
 
 Entry does not excuse the lessee 
 from the performance of a collate- 
 ral covenant. 247 
 
 Acceptance of rent-arrear waives the 
 right of re-entry, in what case. 
 
 258, 259 
 A distress affirms the continuance of 
 
 a lease. 259 
 
 But not an action, in what case. ibid. 
 Acts necessary to be done by the 
 reversioner to entitle him to re- 
 enter on breach of a condition. 
 
 259, 260 
 Actual entry is not necessary, ibid. 
 Difference as to re-entry between 
 
 leases for lives or years. 260 
 
 Of the remedy by re-entry fornon-
 
 INDEX. 
 
 619 
 
 payment of rent where the land- 
 lord has a right to re-etiler, under 
 Stat. 4 G. 2. c. 28. 418 
 
 Of the remedy given to grantees or 
 assignees of reversions by stat. %2 
 H. 8. c. 34. 275 
 
 Entry into lauds must be within 
 twenty years, to save the stat. of 
 limitations. .S51 
 
 See Acceplance, Demand, FJectment, 
 Fine, Forcible Entry, Forfeiture, 
 Life, Years. 
 
 Equity. 
 
 See Agrceinent, Covenant, Ejectment, 
 Mortgage, Waste. 
 
 Estoppel. 
 
 Leases, otherwise bad, sometimes 
 enure by way of estoppel. 146 
 
 A lease is good against the lessor by 
 estoppel, in what ease. 14G, 147 
 
 Lease by tenants in common, in 
 what case no estoppel on either 
 part. 88 
 
 Lease by attorney good by estoppel, 
 in what case. 89 
 
 A lease is not good by estoppel, if 
 the lessor had nothing in the 
 lands. 146 
 
 No estoppel is where an interest 
 actually passes. H8 
 
 Effect of an estoppel where nil debet 
 is pleaded. 147 
 
 Where nil habuit, ^'c. is pleaded. 
 
 ibid. 
 
 Difference as to estoppel between an 
 indenture and a deed-poll. 150 
 
 They do not affect a joint lease by 
 tenants in common. 88, 150 
 
 But they operate upon such lease 
 by indenture by joint-tenants. 149 
 
 How if a lease be by co-parceners. 
 
 1.50 
 
 The mortgagee is not estopped by 
 acceptance of the mortgage to 
 deny the mortgagor's title. 88 
 
 The lease of a mortgagor in posses- 
 sion good against himself by es- 
 toppel, in what case. ibid. 
 
 Estovers. 
 
 Common of estovers, what. 221 
 
 Bote, what. ibid. 
 
 Estovers and botes synonymous 
 terms. ibid. 
 
 They are three kinds in law. ibid. 
 
 They are incident to the estate of 
 every tenant. 221 
 
 Except that of tenant at will. ibid. 
 They must be reasonable, otherwise 
 it will be waste. ibid. 
 
 Common of estovers cannot be ap- 
 pendant to land, unless by pre- 
 scription, ibid. 
 
 But they may be appendant or ap- 
 purtenant to a house, to be spent 
 there. ibid. 
 
 Therefore, if the owner re-build a 
 house blown down, in the same 
 place and manner, his estovers 
 shall continue. ibid. 
 
 So, if he merely alter the rooms, 
 without making new chimnies. 
 
 ibid. 
 
 They may be leased. 134 
 
 A prescription to have common of 
 estovers good, in what case. 222 
 
 Not good, in what case. ibid. 
 
 Common of turbary may be appen- 
 dant to a house. ibid. 
 
 One having common of estovers in 
 the lands of another shall have 
 assise of his estovers, if the tenant 
 or owner cut down the wood. 222 
 
 Trespass, however, is the better re- 
 medy, ibid. 
 
 If one having common of estovers 
 use them to an improper purpose, 
 trespass lies. ibid. 
 
 But the party is not liable, in what 
 case. ibid. 
 
 The tenant shall not take wood to 
 make new fences, &c. 223 
 
 But he may cut down dead wood. 
 
 ibid. 
 
 So, he may fell seasonable wood, 
 used to be felled within what time. 
 
 ibid. 
 
 Oaks deemed seasonable wood, in 
 what cases. ibid. 
 
 A termor may cut underwood, in 
 what cases. ibid. 
 
 Copyholders may cut off the under 
 boughs. ibid. 
 
 But not the top boughs. ibid. 
 
 Except the loppings of pollengers, 
 by custom, ibid. 
 
 In which case the lord cannot cut 
 the trees down. ibid. 
 
 A rector may cut down timber for 
 repairs of the parsonage or chan- 
 cel. 224 
 
 lie may cut down underwood for
 
 6^0 
 
 INDEX. 
 
 any purpose, if sucli be the cus- 
 tom of the country. 224 
 
 A custom Uiat every copyholder 
 may fell trees at his pleasure, 
 void. 225 
 
 See Copyholders, Emblements, Waste. 
 
 Estrepement. 
 
 Its derivation and import explained. 
 
 441 
 An action founded on this writ may 
 
 be n)aintaincd,in what case. ihid. 
 It will lie in an action of waste, ibid. 
 By virtue of this writ, the sheriff 
 
 may do what. 443 
 
 Eviction. 
 
 See Jjeht, Covenant, Entry and Evic- 
 tion, Sfc. 
 
 Evidence. 
 
 See Acceptance, Agreement, Notice, 
 and the respective Actions under 
 their titles. 
 
 Exception. 
 See Condition, Covaiant, Fire, Waste. 
 
 Execution. 
 
 If corn be taken in execution and 
 sold, and the vendee permit it after 
 severance to lie on the ground, it 
 is distrainable for rent. 303 
 
 Of the execution of the judgment in 
 ejectment. 404, ^c. 
 
 No execution shall be stayed by writ 
 of error upon a judgment in eject- 
 ment, unless the plaintiflfdo what. 
 
 408 
 
 Of execution of the judgment in an 
 action of waste. 449 
 
 See Distress, and the several Actions 
 under their respective titles. 
 
 Executors. 
 
 See Administrators and Executors, 
 Assignment, Covenant, Debt, Dis- 
 tress, Ejectment, Kmhlcmcnts, Lease, 
 Poors Rates, Hrpltvin, Trespass, 
 Waste, ^f. ^c. 
 
 Extinguishment . 
 See Debt, Lease, Rent, Years. 
 
 Feme-Covert. 
 
 Her free agency is suspended dur- 
 ing coverture, 94 
 
 Her purchase of lands is good till 
 avoided by her husband. 27H 
 
 She cannot be a lessee. 94 
 
 But estates made to femes-covert 
 upon condition, shall bind them. 
 
 237 
 
 Her power to dispose, how to be 
 executed. 73 
 
 Wife, having power to dispose, may 
 execute it by conveyance. ibid. 
 
 Her trust of a term \ests in her hus- 
 band. 73, 278 
 
 Husband about to sell a term in 
 right of his wife from whom he 
 was divorced a mensd ct tltoro, re- 
 strained in equity. 279 
 
 But he may sell a term in her right 
 as executrix of her former hus- 
 band, ibid. 
 
 Payment of rent under a lease to 
 the wife duni sola should be to the 
 husband. 283 
 
 The executor of a feme covert is en- 
 titled to arrearages of the rent, in 
 what case. 293 
 
 If baron and feme were lessors and 
 the baron die, the feme is liable 
 for costs, in what case. 403 
 
 Her copyhold interest is forfeitable 
 only during her baron's life by 
 any act of his. 74 
 
 If she be guardian in socage she may 
 after her husband's death avoid a 
 lease made together with him. ib. 
 
 She cannot be bound by estoppel. 
 
 147 
 
 Her power to avoid a lease is trans- 
 ferred to a second husband, in 
 what case. 279 
 
 Such power descends to her issue if 
 she (tie before her husband, in 
 what case. 2S0 
 
 What is a disposition by the second 
 husband. ibid. 
 
 If a feme alien any estate in dower 
 or for life, or in tail, jointly with 
 her huj^biuid or coming from him, 
 it shall bo void and the husband's 
 heir may enter. 351 
 
 A right of entry is given by statute
 
 INDEX. 
 
 mi 
 
 to the wife or lier heirs after the 
 death of her husband who had 
 ahened lands and tenements of 
 her inheritance. 351 
 
 A recovery in ejectment against the 
 wife cannot be given in evidence 
 against baron and feme for mesne 
 profits. 415 
 
 See Baron, and the several Actions 
 under their respective lilies. 
 
 Fences. 
 
 Hay-bote or hedge-bote is wood to 
 repair fences, ^c. which appertain 
 to a termor of common right. 
 
 221 
 
 The lessee may take and cut for 
 pales, thougli they need no amend- 
 ing, in what case. 233 
 
 But lie must keep them for that 
 purpose. ibid. 
 
 To the action of waste, the defen- 
 dant may plead that he took for 
 repair of fences. 447 | 
 
 Every man's ground is, in the eye 
 of the law, fenced. 518 
 
 Who liable to the repair of the 
 hedges and scouring the ditches. 
 
 ibid. 
 
 For breaking a man's close, cutting 
 down his trees, or throwing down 
 his fold, ^-c. trespass lies. ibid. 
 
 Case lies if one who ought to en- 
 close against my land do not en- 
 close, whereby his cattle do da- 
 mage. 455 
 
 So, it lies for breaking the fences of 
 a third person, whereby my cattle 
 escape and are distrained. 456 
 
 So, for not repairing fences, though 
 no agreement to that effect. 450 
 
 But action on the case on this ac- 
 count must be brought against 
 the occupier, for what reason. 
 
 526 
 
 See Damage-feasant, Estovers, Tres- 
 pass, Waste. 
 
 Fishery. 
 
 By a grant of water nothing passes 
 
 but a right of fishing. 97 
 
 Whether ejectment lies for a fishery. 
 
 363 
 Fine. 
 
 Of fines or forehand-rents. 
 
 241 
 
 It has been considered as an im- 
 proved rent. 241 
 
 A new member of a corporation en- 
 titled to his share of a fine on re- 
 newal of a lease, in what case. ib. 
 
 Vide lyectmenl. Entry. 
 
 Fixtures. 
 
 What are such. 207 
 
 The old rule was, that things fixed 
 to the freehold became part of it 
 and could not be removed, ibid. 
 
 Of the rule as between landlord and 
 tenant. ibid. 
 
 As between tenant for life or in tail 
 and the reversioner or remainder- 
 man. 211 
 
 What things the tenant may remote. 
 209, ^c. 
 
 They must be removed within the 
 term, else he will be deemed a 
 trespasser. 207 
 
 For after the term they become a 
 gift in law to him in reversion. 
 
 ibid. 
 
 What a sheriff* may take in execu- 
 tion, the tenant it seems may re- 
 move, ibid. 
 
 What things may be removed by 
 tenant for life, and what things 
 go to the executor. 211 
 
 If he does not remove them they go 
 to his executors. 264 
 
 Between the heir and executor the 
 old rule still holds without relaxa- 
 tion. 211 
 
 See Ejectment, Execution, Waste, fyc. 
 
 Forcible Detainer. 
 
 Forcible detainer, an offence at com- 
 mon law. 528 
 What constitutes such detainer. 530 
 Of the remedies and punishment for 
 this offence, see Forcible Entry. 
 
 Forcible Entity. 
 
 Forcible entry an offence at com- 
 mon law. 528 
 
 Forcible entry, what. ibid. 
 
 Usual mode of proceeding in this 
 action. ibid. 
 
 For what it will lie. ibid. 
 
 It will not lie for a common w an 
 office. 529
 
 632 
 
 INDEX. 
 
 Nor for a way or other easement, 
 which is no possession. 529 
 
 What constitutes a forcible entry. 
 
 ibid. 
 
 1. Violence is necessary. ibid. 
 But the mere passing over lands by 
 
 a claimant of them is not held 
 forcible, in what case. ibid. 
 
 Nor is the bare drawing up a latch. 
 611,612 
 
 Nor, the pulling back the bolt of a 
 door. 530 
 
 Nor, entering a house through a 
 window. ibid. 
 
 Nor, opening a door with a key. 
 
 ibid. 
 
 What is sufficient proof of violence. 
 
 ibid. 
 
 The entering another man's house or 
 ground, in any manner that may 
 ofier fear, is a forcible entry with- 
 in the statute. ibid. 
 
 So, a peaceable entrance, if the party 
 entering there commit any act of 
 violence, is forcible. ibid. 
 
 2. Terror is an incident to forcible 
 entry. ibid. 
 
 What shall be construed to excite 
 teiTor. ibid. 
 
 The putting those in possession in 
 bodily fear, if they do not give 
 way, is such. ibid. 
 
 So, the carrying an unusual number 
 of attendants. ibid. 
 
 So, the carrying of arms. ibid. 
 
 So, threats of employing force, ibid. 
 
 But the mere threatening to spoil 
 another's goods, ^c. is not such 
 forcible entry. ibid. 
 
 This ofience may be committed as 
 well by one as several. ibid. 
 
 But all who accompany a man, mak- 
 ing a forcible entry, are judged to 
 enter with him, in what case. 
 
 ibid. 
 
 How punishable by action. ibid. 
 
 The party aggrieved shall have assize 
 of novel disseisin. ibid. 
 
 So, he may h;ive writ of trespass 
 
 against the disseisor. 
 
 ibid. 
 
 But only in the case of unlawful 
 entry. ibid. 
 
 In case of lawful, though forcible 
 entry, the disseisor is indictable 
 for what. ibid. 
 
 So, he shall recover treble damages 
 and cofits. 531 
 
 Forcible entry, how punishable at 
 
 the sessions. 531 
 
 The party aggrieved may indict the 
 
 disseisor, tor what. ibid. 
 
 Justices of the peace may take such 
 
 indictment. ibid. 
 
 The indictment must describe, what. 
 
 ibid. 
 Ouster of possession does not exist, 
 
 in what case. ibid. 
 
 How punishable by a justice, ibid. 
 Complaint to him, not necessary in 
 
 all cases. ibid. 
 
 Justices are bound to proceed on any 
 
 information, in vviiat case. ibid. 
 Tliey are to take the posse comitatus. 
 
 532 
 A justice may break open the doors. 
 
 ibid. 
 Arrest the offenders. ibid. 
 
 Deprive them of their arms, ifc. ibid. 
 He must make a record of what. 
 
 ibid. 
 And commit the offenders to gaol. 
 
 ibid. 
 But if the offenders, on the justice's 
 
 approach, do not resist, he cannot 
 
 arrest them. ibid. 
 
 Though, if the jury afterwards find 
 
 force, he may bind them to kee]> 
 
 the peace. ibid. 
 
 And afterwards commit them till 
 
 they have found sureties. ibid. 
 So, he may commit offenders till 
 
 they have paid the fine imposed 
 
 by statute. 533 
 
 Such fine must be severally assessed. 
 
 ibid. 
 How to be applied by the justice. 
 
 ibid. 
 Of restoring the party disseised to 
 
 possession. ibid. 
 
 The justice must issue a precept to 
 
 the sheriff" for assembling a jury. 
 
 ibid. 
 The jury must find force. ibid. 
 
 Penalty on sheriff" and juiors for 
 
 neglect. ibid. 
 
 The justice may proceed against the 
 
 sherifl" how. ibid. 
 
 Of the pleas before the justice. 534 
 If defendant tender a traverse of the 
 
 force, such traverse must first be 
 
 tried. ibid. 
 
 The party tendering the traverse is 
 
 liable to all the charges of trial. 
 
 ibid.
 
 INDEX. 
 
 PJea of three years, possession good, 
 without shewing what. 534 
 
 Such plea must be tried before resti- 
 tution be made. ibid. 
 
 If found against the party indicted, 
 he is Uable to costs and damages. 
 
 ibid. 
 
 The justice, after forcible entry and 
 detainer proved, is to proceed, 
 how. 535 
 
 He may remove the force. ibid. 
 
 And restore the party excluded. 
 
 ibid. 
 
 So may the sheriff, under what au- 
 thority, ibid. 
 
 Forcible entry how punishable on a 
 certiorari. ibid. 
 
 If proceedings be quashed, the Court 
 
 1 of K. B. will order restitution to 
 the party injured. ibid. 
 
 Forcible entry, how punishable as a 
 riot. ibid. 
 
 Forfeiture. 
 
 Ste' Acceptance, Assignment, Condi- 
 tion, Copyholders, Covenant, Debt, 
 Demand, Ejectment, Entry, and 
 
 , Re-entry, Sec. 
 
 " Franchises. 
 
 Franchises are an incorporeal here- 
 ditament. 103 
 
 Franchises may be demised, ibid. 
 
 Except in the case of a personal im- 
 munity, ibid. 
 
 Every fair is a market, but not e con- 
 trd. ibid. 
 
 Frauds, statute of, S^c. 
 
 By the statute of frauds (29 Car. 2. 
 c. 3.) no leases, estates, &c. either 
 of freehold or term of years shall 
 be assigned, granted, &c. unless 
 by deed or note in writing signed 
 by the assignor, &c.or their agent. 
 U.: 12,126 
 
 yj^pyhold or customary interests are 
 y not within the statute. 12 
 
 i.A lease for years cannot be surren- 
 „, dered by cancelling the inden- 
 ture, without writing. 126 
 But a deed is not necessary to a sur- 
 der. ibid. 
 lyhe note in writing however must be 
 .^ itaraped* 127 
 
 By the same statute no parol lease 
 for above three years is to have 
 any other effect than a lease at 
 will. 141 
 
 A parol demise to hold from year to 
 year and so on while it please the 
 parties, is an executory contract 
 not within the statute. 119 
 
 A lease for three years to commence 
 infuturo by parol is not warrant- 
 ed by the statute. 15 
 
 But any lease that does not exceed 
 three years from the making is 
 within it. ibid. 
 
 Where an executory contract is, by 
 which no term for above two 
 years ever subsists at the same 
 time, it is not void by the statute. 
 
 120 
 
 A parol agreement part performed 
 is not within the provisions of the 
 statute, but will be decreed by a 
 court of equity. 20 
 
 See Agreement, Ejectment, Equity, 
 Notice, Parol- danise, Removal, 
 Surrender, S^c, 
 
 Free-bench. 
 See Widow's Estate. 
 
 Freehold. 
 
 See Acceptance, Condition, Entry' 
 and Re-entry, Estovers, Execution, 
 Fixtures, Livery, Pleading, and 
 the respective Actions. 
 
 Furniture. 
 
 Furniture brought into an unfur- 
 nished room by a lodger is dis- 
 trainable for debt due by the land- 
 lord. 302 
 
 Future Interest. 
 
 A lease to commence ifi future i» 
 called an interesse termini or fu- 
 ture interest. HI 
 
 All leases in futuro must be cer- 
 tain as to their commencement, 
 &c. 113 
 
 What kind of certainty is necessary. 
 
 ibid. 
 
 A term of years to commence infu' 
 turo may be assigned, for the in- 
 terest is vested en prasenti. 151
 
 624 
 
 INDEX. 
 
 Such interesse termini is grantaljle 
 before entry by tlie lessee. 151 
 
 Though the lessor die before the les- 
 see enter, yet tlie lessee may en- 
 ter. 118 
 
 So, if the lessee die before entry, his 
 executors, &c. may enter, ibid. 
 
 If it be made to two and one die be- 
 fore entry, his interest shall sur- 
 vive, ibid. 
 
 Of future interest being barred. 152 
 
 If the lessee enter before his lease 
 come into possession it will be a 
 disseisin. 153 
 
 A husband may make a lease of 
 lands held in joint-tenancy with 
 his wife to commence after his 
 death. 144 
 
 Such leases will be good though the 
 wife survive. ibid. 
 
 Such leases cannot be made by pa- 
 rol. 144 
 
 Freehold leases cannot be made to 
 commence infuturo. 105 
 
 See Assignment, Covenant, Debt, E?i- 
 try and Re-entiy, Grant, Lease, 
 Years, 8fc. 
 
 Gleaning. 
 
 The right to glean is merely no- 
 tional. 231 
 
 For, to steal corn severed from the 
 freehold is felony. ibid. 
 
 A right to glean, however, may exist 
 by particular custom. ibid. 
 
 Glebe. 
 
 The glebe lands of a rectory are re- 
 coverable in an ejectment for the 
 rectory. 363 
 
 In an action for the use and occupa- 
 tion of glebe lands the defendant 
 cannot give in evidence a simo- 
 niacal presentation. 342 
 
 Goods. 
 
 See Furniture. 
 
 Grant. 
 
 A grant of land passes whatever is 
 upon, or beneath it. . 97 
 
 Exception to this rule. 401 
 
 By a grant of water, a piscary only 
 passes. 97 
 
 What passes by a grant of a farm . 
 
 ibid. 
 
 of a messuage. ibid. 
 
 of a house with the ap- 
 purtenances, ibid. 
 
 What passes by a grant of an ad vow- 
 son. 99 
 
 Dignities and honours cannot be 
 granted for years. 102 
 
 Grantee of an office, by accepting a 
 new grant of the same, surren- 
 ders. 129 
 
 Grantee of a rent-charge is enabled 
 to bring an ejectment, by what 
 proviso. 356 
 
 A grantee may prove the execution 
 of the deed to himself, in what 
 case. 398 
 
 A parson may grant his tithes for 
 years. 100 
 
 A grantee shall have all ways, ease- 
 ments, ^c. ibid. 
 
 Guardian. 
 
 Guardian in socage, who is, 79 
 
 A devise to a guardian, on behalf of 
 his ward, gives him an authority 
 only, in what case. 78 
 
 He may grant leases in his own 
 name. 77, 78 
 
 He may hold courts in his own name 
 and grant copyholds, which shall 
 bind the heir. ibid. 
 
 Of a woman guardian in socage, 
 making a lease of the infant's 
 lands jointly with her husband. 
 
 74 
 
 His leases beyond his guardianship 
 voidable only, but not void. 77 
 
 Therefore, may be affirmed by the 
 infant, when of age. 78 
 
 Testamentary guardian, is the same 
 as guardian in socage. 77 
 
 A guardian by nurture cannot make 
 leases, either in his own or the in- 
 fant's name. 78 
 
 But he may make leases at will. 
 
 ibid. 
 
 If a guardian be lessor of the plaiii- 
 tifl' in ejectment he must prove 
 what. 396
 
 INDEX. 
 Habendum. 
 Habendum in a deed, nature of. 1 1 
 
 Habere facias Possessionem. 
 See Ejectment. 
 
 Hear-say. 
 
 In what case evidence as to mar- 
 riage. 396 
 
 Declarations of deceased tenants evi- 
 dence, in what cases. 398 
 
 Herbage. 
 
 A lease of the vesture or herbage is 
 good. 174 
 
 But a reservation of such would be 
 bad. ibid. 
 
 Grant of herbage by husband, in 
 what case void. 279 
 
 Ejectment also lies for herbage. 363 
 
 Hereditaments. 
 
 Of corporeal hereditaments. 95, ^c. 
 Of incorporeal hereditaments. 99 
 
 House. 
 
 A house passes by a grant of the 
 land. 97 
 
 Ejectment for a house is good. 361 
 
 A house ought to be demanded by 
 the name of a messuage. ibid. 
 
 So, ejectment lies for part of a house. 
 
 ibid. 
 
 But ejectment of a kitchen has been 
 held bad, from the vagueness of 
 the term. ibid. 
 
 Five-eighths of a cottage may be re- 
 covered in ejectment. 405 
 
 If several messuages be in possession 
 of different tenants, the sheriff" 
 must go to all their houses and 
 turn them out. ibid. 
 
 As to the time of giving notice to 
 quit, there is no distinction be- 
 tween houses and land. 169 
 
 Of a prescriptive right to a seat in 
 a church, in respect to the party's 
 house. 542 
 
 See Covenant, Distress, Ejectment, 
 
 625 
 
 Fire, Fixtures, Furniture, Grant, 
 Ilcreditujaeiits, Lodgings, Notice, 
 Poors-rate, Repair, Trespass, 
 ll'asle, 6;c. 
 
 Husband:, 
 
 See Baron. 
 
 Indenture. 
 
 An indenture is what. 10 
 
 All the parts of an indenture make 
 but one deed. ibid. 
 
 Distinctions between originals and 
 counterparts. ibid. 
 
 Constituent parts of a lease by in- 
 denture. 10,11 
 
 If one party execute an indenture, it 
 shall be his deed, though the other 
 do not execute it. 425 
 
 See Deed. 
 
 Infant. 
 
 Of his power to demise. 76 
 
 Leases by or to an infant voidable, 
 but not void. 77 
 
 What act amounts to an affirmance. 
 
 ibid. 
 
 What to an avoidance. ibid. 
 
 Building leases decreed in favour of 
 an infant, in what cases. ibid. 
 
 Whether he is liable for use and oc- 
 cupation. 93 
 
 In ejectment on the demise of an in- 
 fant, proceedings will be stayed 
 till security be given for costs, or 
 a responsible plaintiff" be named. 
 
 383 
 
 Therefore, if an infant lessor deliver 
 a declaration, some friend or 
 guardian must be set up as plain- 
 tiff", ibid. 
 
 If such person die insolvent, the in- 
 fant himself will be responsible. 
 
 ibid. 
 
 See Guardian, and the several Ac' 
 tions. 
 
 Inferior Courts, 
 
 Of proceedings in ejectment in an 
 inferior Court. 411 
 
 The sheriff" may hold plea in the 
 County-Court on replevin by 
 plaint. 469 
 
 S s
 
 6'2Q 
 
 INDEX. 
 
 Either party however may remove a 
 replevin to the superior Courts. 
 
 473 
 
 Proceedings in replevin cannot be 
 carried on, in what Courts, ibid. 
 
 Of removinij the suit in replevin 
 from the County-Court. 480,481 
 
 See Trespass, Replevin. 
 
 Injunction. 
 
 See Covenant, Ejectment, Equity, 
 Waste. 
 
 Insanity. 
 See Lunatic. 
 
 Inventory. 
 See Furniture, Schedule. 
 
 Joinder of Action. 
 
 The Court will not join several de- 
 fendants in one declaration in eject- 
 ment if they be severally con- 
 cerned in interest. 379 
 
 But it will consolidate several eject- 
 ments, in what case. ibid. 
 
 Of ejectment and assault and battery 
 heme: joined in the same writ. 
 
 402 
 
 What causes of action may be joined. 
 
 344 
 
 Joinder of action depends on the 
 form of the action. 515 
 
 Joint-tenants. 
 
 Joint-tenants may join or sever in 
 
 making leases. 87 
 
 Their leases bind, whether they be 
 
 in prasenti or infutiiro. ibid. 
 
 The lease by deed-jioll or by parol 
 
 reserving one rent, enures to both. 
 
 ibid. 
 But if by deed indented it enures to 
 
 him only who made the lease. 
 
 ibid. 179 
 Gift of a right in the land, as to his 
 
 moiety, by one joint-tenant, binds 
 
 the survivor. 87 
 
 Except such gift be by devise, ibid. 
 Grant of the lierbagc, ^c. by one 
 
 joint-tenant, binds the survivor. 
 
 ibid. 
 So, of a pi»(.ary. ibid. 
 
 Where the joint-tenancy i* for life. 
 
 87 
 How if a rent be reserved on the 
 lease of joint-tenants. 88 
 
 Personal representatives of a joint- 
 tenant may recover arrears of an 
 imperfect period to the day of his 
 decease. ibid. 
 
 In what case their lease is bad for 
 both moieties. ibid. 
 
 A joint-tenant may demise to or 
 contract with his companion, ibid. 
 If two joint- tenants join in a lease it 
 is but one lease. ibid. 
 
 If one die before entry, his interest 
 shall survive. 121 
 
 Lease to two for years, if they so 
 long live, is a collateral condition, 
 therefore no survivorship. ibid. 
 One of two lessees taking a new lease 
 for years, thereby surrenders his 
 moiety. ibid. 
 
 One joint-tenant cannot surrender to 
 his companion. 129 
 
 In what cases a joint-tenant may 
 surrender. ibid. 
 
 Where one of two joint-tenants will 
 not repair the house. 218 
 
 One joint-tenant may distrain alone. 
 
 295 
 He may avow, in what manner. 
 
 321,484, 483 
 Joint-tenants should join in replevin. 
 
 468 
 Of ejectment by joint-tenants. 352 
 If one joint-tenant levy a fine, though 
 it sever the jointure it does not 
 amount to an ouster of his com- 
 panion, ibid. 
 What possession by one co-tenant is 
 adverse and an ouster. 353 
 Of one of two joint-lessees sealing a 
 counterpart of a lease and the other 
 agreeing, but not sealing. 425 
 See Partition. 
 
 Issue. 
 See Confirmation. 
 
 Judgment. 
 See the respective Actions. 
 
 Justices. 
 
 Two or more Justices of the Peace 
 i may put the landlord in possession
 
 INDEX. 
 
 627 
 
 of premises lefi vacant, in what 
 manner. 423 
 
 Such Justices should make a record 
 of the whole proceedings. 434 
 
 See Forcible Entry, Poors-rate, Ifc. 
 
 Justification. 
 See Trespass, Sfc. 
 
 Kitchen. 
 
 Not recoverable eo nomine in eject- 
 ment. 361 
 
 Land. 
 
 See Ejectment, Grant, Hereditament, 
 Sfc. 
 
 Land-tax. 
 
 See Taxes. 
 
 Latidlord. 
 
 See Lessor. 
 
 Lease, 
 
 What is such. 1 
 
 What must concur in making it. 4 
 By what words made. 4, 5 
 
 The different kinds of leases, and 
 
 how made. 10 
 
 Lease by deed must be written or 
 
 printed upon parchment or paper. 
 
 Formalities requisite to a lease. 12 
 Of agreements for leases and the re- 
 medies thereon. 19, 20 
 Of the stamps requisite to leases and 
 agreements. 29, 30 
 Of registering leases by deed. 15 
 To whom leases may be made. 91 
 For what term leases may be made. 
 104, 154 
 Of the general incidents to leases. 
 173, ^c. 
 Lands and houses may be demised. 
 
 96 
 So, goods and chattels. ibid. 
 
 So, tithes. 100 
 
 So, tolls. ibid. 
 
 So, estovers. ibid. 
 
 So, commons. 
 So, ways. 
 So, offices. 
 So, franchises. 
 So, corrodies. 
 So, annuities. 
 So, rents. 
 
 100 
 
 ibid. 
 
 101 
 
 102 
 
 ibid, 
 ibid, 
 ibid. 
 
 In what respect the interest therein 
 diflers. 96, 97 
 
 Leases for life, years, or at will, may 
 be made of any thing corporeal 
 or incorporeal, that lies in livery 
 or grant. 97 
 
 Of leases by tenant per outer vie, see 
 Tenant per auter vie. 
 
 by copyholders. 82 
 
 by corporations, see Cor- 
 porations. 
 
 by tenants by the curtesy. 
 
 see Curtesy of England. 
 
 by tenants in dower, see 
 
 Widoto's Estate. 
 
 by ecclesiastical persons. 
 
 see Ecclesiastical Persons. 
 by executors and adminis- 
 trators. 79 
 by tenant in fee-simple. 
 
 see Fee-simple. 
 
 by infants and guardians. 
 
 76 
 by tenants in jointure, see 
 
 Jointure. 
 
 by joint-tenants and te- 
 nants in common. 87 
 by tenants for life, see 
 
 Life, Est ate for. 
 
 by married women, and 
 
 husbands seised in their right. 73 
 
 by mortgagees. 79 
 
 by parceners. 87 
 
 pursuant to authority, see 
 
 Authority, Bailiff. 
 
 ■ by tenants by statute-mer- 
 
 chant, statute staple and elegit. 82 
 by tenants at sufferance. 
 
 see Sufferance, Tenant at. 
 
 by tenant in tail, see Tail, 
 
 Estate. 
 
 • after 
 
 pos- 
 sibility of issue extinct, see the 
 same title. 
 
 by tenant at will, see Will, 
 
 Tenants at. 
 
 by tenants from year to 
 
 year, or for a less term, see Year 
 to Year, Tenants from. 
 See Agreement, Deed, Fraud, Parol 
 
 Ss2
 
 G2S 
 
 INDEX. 
 
 Demise, Surrender, Termination, 
 the respective Actions, Sfc. 
 
 License. 
 See Distress, Replevin, Trespass, 8fc. 
 
 Life, Estate for. 
 
 Estate for life, how created. 39, 104 
 Tenant for life has a freehold, ibid. 
 His leases expire with his estate. 39 
 Remainder-man's acceptance of rent, 
 l^'C. no confirmation at law of a 
 lease void against him. ibid. 
 
 But circumstances may bind him in 
 equity. ibid. 
 
 Tenant for life's leases for years 
 good by confirmation^ in what 
 cases. ibid. 
 
 In what cases not. ibid. 
 
 His lease amounts to a grant of his 
 whole interest, in what case. ibid. 
 His lease jointly with remainder-man 
 in tail good though a fine be le- 
 vied, in what case. ibid. 
 Tenant for life of a copyhold cannot 
 destroy the custom as to him in 
 reversion. 84 
 Where any persons, for whose lives 
 any estates ha\e been granted, are 
 abroad or absent for seven succes- 
 sive years, in what case they shall 
 be accounted dead. 108 
 If, however, any person should be 
 evicted by cestui que vie's, absence 
 or supposed decease, such person 
 shall be re-instated, in what case. 
 
 ibid. 
 Remainder-man, or reversioner, may 
 move the Court for producing 
 feme-covert, infant, ^c. suspected 
 to be concealed for the purpose of 
 defeating their estate, at what 
 time. ibid. 
 
 The tenant under a void lease by te- 
 nant for life is recognized by the 
 remainder-man, in what case. 15G 
 A lease for life on condition cannot 
 cease without entry. 237 
 
 A tenant for life without impeach- 
 ment of waste, may cut down 
 timber and open new mines. 219 
 But he must n(»t cut down timber 
 that bhellers or adorns the estate, 
 ifc. ibid. 
 
 His privilege fails if he change his 
 estate. 291 
 
 He must keep the houses on the es- 
 tate in repair, though he be with- 
 out impeachment of waste. 233 
 
 The executors, fyc. of tenant for life, 
 may distrain upon lands charge- 
 able with rent, services, Sfc. while 
 they remain in possession of the 
 tenant who ought to have paid 
 such rent, or any under him. 296 
 
 The statute extends to the executors 
 of all tenants for life. 297 
 
 See Powers, Waste, Sfc. 
 
 Limitation. 
 See Ejectment, Mesne Profits, Sfc. 
 
 Livery of Seisin. 106, 107 
 
 Lodgings and Lodgers. 
 
 Lodgings, what. 99, 166 
 
 How let. ibid. 
 
 The several apartments of a house, 
 regarded as distinct mansions. 
 
 167 
 
 What interest lodgings constitute. 
 
 ibid. 
 
 Lodgers are considered as house- 
 holders, ibid. 
 
 But they are not compellable to 
 serve parish offices. ibid. 
 
 Lodgings may be the subject of a 
 burglary, in what case. 168 
 
 Though the owner occupy a shop, 
 S^x. it is the mansion of each 
 lodger. ibid. 
 
 Unless the owner sleep therein, ibid. 
 
 It is the tenant's mansion, in what 
 case. ibid. 
 
 Where lodgings are let furnished, a 
 schedule must be given. 170 
 
 See Furniture, Notice, Schedule, Te- 
 nancy for a less term than a Year. 
 
 Lunatic. 
 
 A lunatic is incapacitated from tak* 
 ing a lease. 91 
 
 The committee of a. lunatic may 
 bring an t^'ectment, in the luna- 
 tic's name. 35^ 
 
 In ejectment against a lunatic, M'hat, 
 is deemed good service of the de* 
 claratioii. 37'^
 
 INDEX. 
 
 &3i9 
 
 Specific performance decreed a- 
 gaiiisl a lunatic, in what cases. 34 
 
 A term shall merge, tliough the 
 owner be a lunatic, in what cases. 
 
 125 
 
 An executor not interested may 
 prove the testator's sanity. 398 
 
 Manor. 
 
 The possession of a manor is not the 
 possession of mines. 351 
 
 Neither is the possession of a manor 
 the possession of a cottage built 
 thereon. ibid. 
 
 The lord shall not recover a cottage 
 built in defiance of him, in what 
 case. 354 
 
 The lord may bring an ejectment 
 against copyholders, in what case. 
 
 358 
 
 So a copyholder may maintain eject- 
 ment against him, in what case. 
 
 ibid. 
 
 Ejectment for a manor should ex- 
 press, what. 359 
 
 How if the lord cut down so many 
 trees as not to leave sufiicient es- 
 tovers. 22? 
 
 Of the lord planting trees on a com- 
 mon to the hindrance of the com- 
 moners, ibid. 
 
 See Copyholders, Baron, Sfc, 
 
 Market. 
 
 What is such. 
 
 103 
 
 Marriage. 
 
 A marriage to be impeached must 
 be shewn to have been irregular. 
 
 395 
 
 Evidence of declarations by the par- 
 ties admissible. 396 
 
 An intermarriage affects a term in 
 respect to merging it, in what 
 cases. 124 
 
 See Baron, peine, Sfc. 
 
 Memorandum. 
 
 A memorandum was held to take an 
 agreement out of the statute of 
 Frauds, in what case. 27 
 
 A witness may refresh his memory 
 by memoranda, taken at the time 
 of the transaction. 397 
 
 But if he speak merely from such 
 inemoranda tlie original minutes 
 must be produced. ibid. 
 
 See Frauds, Witness. 
 
 Memorial. 
 
 Memorial, on registering deeds, 
 
 must be stamped in certain cases. 
 
 17,13 
 
 Merger. 
 
 Of the termination of a lease for 
 years by merger. 12i 
 
 A fee-farm rent is merged in the 
 inheritance, in what case. ibid. 
 
 One cannot have a term lor years in 
 his own right and a freehold in 
 right of another. ibid. 
 
 Exceptions to this rule. 124 
 
 Of merger in respect to the estate 
 of the husband and wife. ibid. 
 
 Courts of law will not merge estates, 
 in what cases. 125 
 
 But equity will, in what instance. 
 
 ibid. 
 
 Mesne Assignments. 
 In what cases presumed or not. 393 
 
 Mesne Profits. 
 
 Of trespass for the mesne profits. 
 
 412 
 
 How to be brought. ibid. 
 
 Suit stayed till security for cost*, in 
 what case. 414 
 
 The plaintiff need not prove a title. 
 
 412 
 
 But he must shew, what. ibid. 
 
 Not bound to claim the profits only 
 from the time of the demise, ibid. 
 
 But the defendant may controvert 
 his title, in what cases. 413 
 
 So, that the plaintiff must prove his 
 title and actual entry. ibid. 
 
 Whether a devisee will be entitled 
 to the profits till he has made ac- 
 tual entry. ibid. 
 
 The Court will intend every thing 
 possible against the defendant. 
 
 ibid. 
 
 Of the statute of Limitations, ibid. 
 
 One tenant in common may main-
 
 6S0 
 
 INDEX. 
 
 tain this action against the otVier, 
 in what case. 413 
 
 One in possession after a recovery 
 in ejectment cannot cover him- 
 self under the license of the de- 
 fendant in that action. ibid. 
 
 The tenant cannot pay money into 
 Court. 414 
 
 The defendant may be held to baih 
 
 ibid. 
 
 The declaration must state what. 
 
 ibid. 
 
 Of the action pending a writ of error 
 in ejectment. ibid. 
 
 A recovery in ejectment against the 
 wife cannot be given in evidence 
 against husband and wife for 
 mesne profits. 415 
 
 Bankruptcy is no plea to the action. 
 
 ibid. 
 
 Where the defendant became a bank- 
 rupt after the ejectment and be- 
 fore the action for mesne profits, 
 and the jury did not notice the 
 costs of ttie ejectment. ibid. 
 
 As to the damages, the quantum de- 
 pends upon circumstances, ibid. 
 
 The jury are nol bound by the rent, 
 but may give extra damages. 412 
 
 Messuage. 
 
 A messuage, ^c. may be compre- 
 hended in the term " farm." 97 
 
 By the name of a messuage, what 
 may pass. ibid. 
 
 Ejectment for " a messuage or tene- 
 ment" is too uncertain. 360 
 
 But, " a messuage and tenement" is 
 good, after verdict. ibid. 
 
 " A messuage or tenement" good, 
 in what case. 361 
 
 Mill. 
 
 Converting one kind of mill into 
 another is waste. 230 
 
 Mines. 
 
 Mines belong to the owner of the 
 soil. 359 
 
 Ejectment will lie for a mine. 351 
 
 Equity will restrain a tenant open- 
 ing mines, ^c. though he has only 
 tlireateiK (1 to do it. 219 
 
 I^'gK'"K ^o'" mines, in what case 
 waste, and in what not. 220 
 
 Though mines be open one, cannot 
 take timber to use in them. 220 
 
 Mortgage. 
 
 A mortgage, what is. 79 
 
 Property, whether real or personal, 
 may be mortgaged. 80 
 
 Advowsons are mortgageable. 99 
 So are lolls. 100 
 
 Mortoragor cannot make leases to 
 bind the mortgagee, in what case. 
 
 SO 
 But mortgagor of an advowson may 
 present, in what case. 99 
 
 A mortgagee in possession is liable 
 to covenants which run with the 
 land. 81 
 
 But not to collateral covenants, ibid. 
 Equity will not compel the assignee 
 of a term on mortgage to discover 
 his assignment, in what case. 81 
 But leave the party to his remedy 
 at law. 82 
 
 Whether a mortgagee or assignee of 
 a term of years is liable to the co- 
 venants, if he has not taken pos- 
 session, ibid. 
 Of leases by way of mortgage. 153 
 Mortgagee is tenant at will, in what 
 case. 173 
 A mortgagee is entitled to rent in 
 arrear after notice to tenant under 
 a prior lease, ^c. 295 
 He may distrain for it. ibid. 
 A mortgagor may redeem. 153 
 But if he do not discover a prior 
 mortgage, he loses the equity of 
 redemption. 152 
 The mortgagee is not barred by a 
 fine levied and five years* non- 
 claim, ibid. 
 Distinction where ejectment is 
 against a tenant holding prior to 
 the mortgage, and where against 
 the mortgagor himself or his te- 
 nant subsequent to the mortgage. 
 
 355 
 Of assignments by way of mortgage. 
 
 276 
 An assignee who has not taken pos- 
 session not compellable to repair, 
 in equity, though compellable at 
 law, in what case. ibid. 
 
 Compellable to pay rent, though he 
 never entered and lost the mort- 
 gage money. ibid..
 
 INDEX. 
 
 631 
 
 Mortgagee not suable as assignee of 
 all the estate, ^c. unless he has 
 taken possession. 269 
 
 If mortgagor and mortgagee make 
 a lease in which the covenants are 
 only with the mortgagor and his 
 assigns, mortgagee's assignee can- 
 not maintain covenant. 277 
 
 Otiierwise, where the covenants are 
 in gross. ibid. 
 
 A tenant to a mortgagor who does 
 not give him notice of an eject- 
 ment brought by the mortgagee 
 to enforce attornment, is not with- 
 in the penalty of stat. 11 G. 2. c. 
 19. 376 
 
 Mountain. 
 
 The word in Ireland is a description 
 of the quality of the land. 362 
 Therefore ejectment will lie for it. 
 
 ibid. 
 Moveables. 
 
 See Furniture. 
 
 New Assignment. 
 See Pleading, Trespass. 
 
 Nomine Poence. 
 
 What is such. 241 
 
 Being incident to the estate, it de- 
 scends to the heir. ibid. 
 
 So, it is incident if an annual rent 
 be devised. ibid. 
 
 Acceptance of rent is a waiver of the 
 
 ^ penalty. ibid. 
 
 It is no nomine pema: unless it refer 
 to rent. ibid. 
 
 A penalty of a similar sort, in case 
 of breach of other covenants, ibid. 
 
 It must be demanded, in what case. 
 
 242 
 
 Such demand must be made, at what 
 time. ibid. 
 
 The penalty of a nomine pcena is 
 waived by acceptance of rent. ibid. 
 
 An avowry held ill for the nomine 
 potncc, for want of a demand, but 
 good for the rent. 519 
 
 Distinction between a nomine pcence 
 and a power to distrain. 261 
 
 See Demand, Rent, Ifc. 
 
 Nonsuit. 
 See Ejectment, Replevin, Sfc. 
 
 Notice to quit. 
 
 Must be for half a year expiring at 
 the end of the tenancy. 155 
 
 Unless by special custom. ibid. 
 
 What time notice should expire in 
 a holding under a void lease. 156 
 
 Of notice to quit, by or to personal 
 re[)resentatives. 157 
 
 Notice has reference to the letting. 
 
 158 
 
 Must end at substantial time of 
 entry on the lands. 158, 159, 160 
 
 Notice to quit on any particular 
 day, evidence of holding from 
 that day, in wh.it cases. 160 
 
 Notice must not be alternative or 
 ambiguous. 161 
 
 Parol notice when sufficient. 
 
 162, 163 
 
 How to be delivered. 163 
 
 May be waived. ibid. 
 
 What acts will amount to a waiver. 
 
 164 
 
 Notice to quit not always necessary. 
 
 165 
 
 If tenant has attorned to another. 
 
 ibid. 
 
 Or holds under a void demise, ibid. 
 
 Notice to quit to recover double 
 value may be before lease expires. 
 
 337 
 
 The notice in writing itself is a de- 
 mand, ibid. 
 
 When double rent is incurred by 
 the tenant's holding over, the no- 
 tice need not be in writinij. ibid. 
 
 Nuisance. 
 
 See Case. 
 
 Occupancy. 
 
 See Assumpsit, Action qf Debt for 
 Use and Occupation. 
 
 Office. 
 
 An office may, generally, be de- 
 mised. 101 
 
 An office may be demised, if it only 
 require skill and diligence. 102
 
 638 
 
 INDEX. 
 
 Or is merely ministerial. 103 
 
 It may in such cases be granted in 
 
 reversion, but not eo nomine, ibid. 
 Except it bean office of inheritance. 
 
 ibid. 
 Such grantee is liable for its duties 
 
 without notice of the vacancy. 
 
 ibid. 
 An office determinable at the will of 
 
 the king. ibid. 
 
 An office concerning the revenue 
 
 cannot be leased. ibid. 
 
 The grantee of an office accepting a 
 
 new grant of the same office is a 
 
 surrender. 129 
 
 Orchard. 
 
 Ejectment lies for an orchard. 359 
 How to be demanded in the prcecipe. 
 
 ibid. 
 Demise of a house " with the appur- 
 tenances" comprehends orchards, 
 Ifc. 97 
 
 Original. 
 See EJectmetit and the other Actions. 
 
 Ouster. 
 
 The statute of limitations never runs 
 against a man, but where he is 
 actually ousted. 403 
 
 What shall be deemed an actual 
 ouster, is for the consideration of 
 the jury. 353 
 
 Ouster presumed, in what case. 
 
 ibid. 
 
 If one joint-tenant levy a fine, though 
 it sever the jointure, it does not 
 amount to an ouster of his com- 
 panion. 353 
 
 If one tenant in common bring eject- 
 ment against the other, an actual 
 ouster must be proved. ibid. 
 
 A tortious ouster must be to make 
 the possession of a tenant at will 
 a disseisin. ibid. 
 
 Overseers. 
 
 Sec Poor's rate. 
 
 Parhj Walh. 188, 189, 190. 
 
 Piscary, 
 
 By a grant of water, piscary only 
 passes. 97 
 
 Pleading. 
 
 Vide Assumpsit, Debt, Covenant, i^c. 
 
 Poor's Rate. 
 
 Foundation of the poor laws. 191 
 Overseers how appointed. 192 
 
 Waste lands improved liable to poor 
 rate. 193 
 
 When to be assessed. 194 
 
 Poor rate not a tax upon land but 
 personal charge on the occupier. 
 
 ibid. 
 Value how to be estimated. ibid. 
 Personal properly rateable. 195 
 Occupier must be rated. ibid. 
 
 Charitable foundations when rate- 
 able. 196 
 The possessions of the crown are not 
 rateable. ibid. 
 Tolls are not rateable. ibid. 
 General enumeration of things rate- 
 able. 197 
 A mere easement is not rateable. 198 
 Tithes are not rateable. ibid. 
 Quit rents are not rateable. 199 
 How rate is to be made and raised. 
 199, 200 
 Where same is to be collected. 201 
 Of levying a distress for poor rates. 
 
 203 
 
 No action of debt will lie for a poor 
 
 rate. 205 
 
 What may be distrained for a poor 
 
 rate. 206 
 
 Of the appeal. ibid. 
 
 Possession. 
 
 If a lessee enter before his lease come 
 into possession, he will be a dis- 
 seisor. 1 51 
 
 No continuance of possession will 
 purge the disseisin. ibid. 
 
 Possession gives the party a right 
 against every one who cannot shew 
 a better title. 350, 389 
 
 The lessor of a plaintifT in eject- 
 ment must prove possession in 
 himself or his aiic€fsl9rs within 
 twenty years. 390, ^c.
 
 INDEX. 
 
 6^ 
 
 Mines within a manor may be a dis- 
 tinct possession. 351 
 
 So, the possession of a manor "is not 
 the possession of a cottage built 
 thereon. ibid. 
 
 Receipt of rent by a stranger not 
 evidence of possession. ibid. 
 
 Twenty years' uninterrupted posses- 
 sion is a good title in itself in 
 ejectment. 352 
 
 But such twenty years' possession 
 must be an adverse one. ibid. 
 
 The titles of mortgagor and mort- 
 gagee being the same, there is no 
 adverse possession, in what case. 
 
 ibid. 
 
 The possession of one joint-tenant 
 or co-parcener is that of the other. 
 
 ibid. 
 
 So, generally speaking, of tenants in 
 common. ibid. 
 
 When two are in possession the law 
 adjudges it in him that hath the 
 right. 353 
 
 So where one claims through or 
 under the other, there shall not be 
 an adverse possession. 354 
 
 What shall constitute an adverse 
 possession, in case of tenants in 
 common, is for the jury's con- 
 sideration. 353 
 
 Posthumoiis Child. 
 
 Entitled to the profits of the land as 
 well as the land itself, in what 
 
 179 
 
 case. 
 
 See Distress. 
 
 Pound. 
 
 P&wer. 
 
 Of powers generally, wherein of the 
 Stat, of Uses. 42, 43 
 
 Circumstances attending the execu- 
 tion of leases under powers. 42 
 
 1 . With respect to the lessor, ibid. 
 
 3. With respect to the lessee. 43 
 
 3. With respect to the subject, on 
 which the power is to operate. 
 
 ibid. 
 
 The words " usually letten" how 
 satisfied and how not. ibid. 
 
 Whether lands not before letten may 
 be demised under a power to lease, 
 provided such rent or more be re- 
 
 served as usual for such a time 
 before the power was granted, is 
 a question of construction. 44 
 What exception in a power will ex- 
 clude copyhold lands, but not 
 rents and services. 45 
 
 Under a power directing the antient 
 rent to be reserved what may be 
 demised. ibid. 
 
 Under a power to lease in possession 
 or reversion the party cannot do 
 both. 50 
 
 But a concurrent lease may be made. 
 
 ibid. 
 
 4. With respect to the quality and 
 
 quantity of interest to be granted. 
 
 46 
 Power to lease in possession s^ova- 
 plied with by a lease " from" the 
 day of the date. 47 
 
 For three lives generally and for 
 three lives and the longer liver, 
 in what case all one. 48 
 
 To render a power effectual, one 
 may lease during the continua- 
 tion of a term to commence after, 
 in what case. ibid. 
 
 Of a power to lease for ninety- 
 nine years or three lives in pos- 
 session, or for two lives in posses- 
 sion and one in reversion, or for 
 one life in possession and two in 
 reversion. ibid. 
 
 A concurrent lease or leases of the 
 reversion, what. ibid. 
 
 Construction of such leases. 49 
 
 What is a continuance of a former 
 term and what a remainder or fu- 
 ture interest. ibid. 
 What leases may be granted where 
 the estate at the creation of a 
 power to lease in possession, is 
 part in possession and part in re- 
 version, ibid. 
 How, where the power is to lease as 
 well in possession as reversion, 
 and the estate is so circumstanced. 
 
 ibid. 
 Power to lease for lives or years, 
 how it may be executed. 51^ 
 
 A man may lease to the extent of 
 his power, or to less than the ex- 
 tent of it. ibid. 
 So, he may execute it at different 
 times. ibid. 
 5. With respect to the rent. 52 
 l*owers are adapted to the two me-
 
 654 
 
 INDEX. 
 
 tbods of leasing, vis, al the best 
 rent and upon fines. 52 
 
 Antient and accustomed rent, how 
 to be understood. 54 
 
 In what cases it must be reserved 
 conformable both in quantity and 
 quahty. ibid. 
 
 A variation in words merely imma- 
 terial, in what case. ibid. 
 
 Improving the estate is not such an 
 alteration as varies the rent to 
 vitiate the power. 55 
 
 A power to lease reserving two parts 
 in three of the improved value as 
 rent, how to be pursued. ibid. 
 
 Several leases may be made under 
 the same power, in what case. 56 
 
 Case in which a lease under a power 
 will be vitiated on account of the 
 times of payment of the rent. 57 
 
 In what respects leases under powers 
 in family settlements differ from 
 those under Stat. IS Eliz. ibid. 
 
 The whole rent must be paid annu- 
 ally during the term. ibid. 
 
 But rent reserved upon a day before 
 the year ends is immaterial, ibid. 
 
 Heriots, Sfc, have no reference to 
 reservation of rent. 72 
 
 The rent need not be reserved to 
 privies in blood merely. ibid. 
 
 6. With respect to the form of a 
 lease under a power. 59 
 
 It is no objection to a lease under a 
 power, that it is in trust for him 
 who executes the power, in what 
 case. 59 
 
 Livery is not necessary to a lease for 
 
 lives under a power, but held to 
 
 'be a forfeiture. ibid. 
 
 A power to one and his assigns runs 
 to assigns in deed or in law. ibid. 
 
 But a proviso to an executor does 
 not extend to the executor of his 
 executor. ibid. 
 
 Case in which a power is not held 
 incompatible with a trust deed for 
 payment of debts. 60 
 
 A power of revocation when sus- 
 pended during the continuance of 
 a term. ibid. 
 
 Prelendary. 
 
 In ejectment by a prebendary, what 
 shall be presumed. 393 
 
 Prescription. 
 See Appendant, Appurtenant, if<r. 
 
 Recital. 
 
 Where the plaintiff undertakes to 
 recite a lease, any misrecital is 
 fatal, if the action be founded on 
 such lease. 318 
 
 If it appears by recitals in the lease 
 that the party bad nothing at the 
 time of the demise and afterward* 
 he purchases the lands, the lease 
 will not enure by way of estoppel. 
 
 146 
 
 A recital of an agreement in the be- 
 ginning of a lease will create a 
 covenant. 428 
 
 The recital of the will in the copy 
 of the admittance is good evi- 
 dence, in what case. 397 
 
 What should be set out in declaring 
 in covenant. 329 
 
 Recovery. 
 
 A recovery in ejectment is not con- 
 clusive evidence against the de- 
 fendant in an action for the mesne 
 profits, in what case. 415 
 
 Rector. 
 
 A rector may cut down timber for 
 the lepairs of the parsonage house 
 or chancel. 225 
 
 So, he is entitled to botes for repair 
 of barns, S^c. belonging to the 
 parsonage. ibid. 453 
 
 But he is not entitled to fell timber 
 for any common purpose, ibid. 
 
 An injunction to stay waste in cut- 
 ting down timber in the church- 
 yard, will be granted till the cause 
 be heard. ibid. 
 
 In an ejectment for a rectory, what 
 should be proved. 892 
 
 A parson leaving tithes upon the 
 soil, is liable to action on the case 
 for a nuisance, when. 455 
 
 Action on the case will not lie 
 against a rector for not carrying
 
 INDKX. 
 
 68* 
 
 away his tithes, unless they have 
 been properly set out. 527 
 
 See Church, Ecclesiastical Persons, 
 Tithes. 
 
 Release. 
 
 A release to one in remainder good 
 to enlarsfe his estate, in what case. 
 
 117 
 
 A vested interest suffices for what 
 release to operate upon. ibid. 
 
 The lessee may release the rent re- 
 served before entry. ibid. 
 
 See the respective Actions, 
 
 jRemainder. 
 
 A parol lease by a remainder-man 
 of a copyhold in fee commences 
 immediately, in what case. 85 
 
 A release to one in remainder is 
 good to enlarge his estate, in 
 what case, 117 
 
 Of the remainder-man's confirma- 
 ^tion of lease by tenant for life. 
 39 
 
 Hemainder-man's acceptance of rent 
 no confirmation at law of a lease 
 void against him. ibid. 
 
 But circumstances may bind him in 
 equity. ibid. 
 
 See Acceptance, Apportionment, Con- 
 Jirmation, Notice, Sfc. 
 
 Heriewal. 
 
 Of the renewal of leases. 135 
 
 Renewal of lease by a person, joint- 
 ly interested with an infant, bind- 
 ing upon the former, in what case. 
 
 93 
 
 Tenant for years may procure a re- 
 
 ,iiewal of lease upon his own life. 
 
 136 
 Acceptance of a fine of the premises 
 a breach of a condition to renew, 
 in what case. ibid. 
 
 Of fines on renewal of leases. 52 
 Tenant-right of renewal, what. 140 
 Assignees of a bankrupt are not en- 
 titled to the benefit of a covenant 
 for renewal of a lease. 283 
 
 A new member of a corporation en- 
 titled to his share of a fine on re- 
 newal of a lease, in what case. 
 
 241 
 See Execution, Fixtures. 
 
 Rent. 
 
 A rent is an incorporeal heredita- 
 ment. 99 
 
 Signification of the term rent. 102 
 
 It cannot issue out of a term of 
 years. 174 
 
 But must come out of the reversion. 
 
 ibid. 
 
 The several sorts of rent. 102 
 
 Rent-seek, what. 103 
 
 Rents of assize, what. ibid. 
 
 Of chief- rents. ibid. 
 
 Of quit-rents. ibid. 
 
 Of rack-rents. ibid. 
 
 Fee-farm rent, what. ibid. 
 
 A covenant to pay a sum yearly, is 
 not a rent, but a sum in gross, in 
 what case. 174 
 
 Executors, ^c. of tenant for life may 
 recover a proportion of rent due 
 at such tenant's decease. 183 
 
 Rent follows the reversion. 173 
 
 Reservation of rent, what. 11 
 
 Incidents necessary to constitute a 
 good reservation. ibid. 1 74 
 
 Upon a surrender reserving rent, 
 such reservation operates as a con- 
 tract. 175 
 
 Reservation of one rent by two joint- 
 tenants several if one only seal the 
 deed. ibid. 
 
 Secus, if the thing reserved had been 
 inseverable. ibid. 
 
 Rent reserved by two joint-tenants 
 by a demise by indenture enures 
 only to one, in what case. 87 
 
 Otherwise, if reserved by deed-poll, 
 or by parol. ibid. 
 
 Reservation must be made to the 
 lessor, and not to a stranger. ' 
 
 177 
 
 Except in the case of the king. 
 
 ibid. 
 
 Reservation only to the lessor deter- 
 mines with his death. ibid. 
 
 So, if a lessor seised in fee reserve 
 to him or his executors, or assigns. 
 
 178 
 
 So, reservation to the lessor's heirs 
 seems bad. ibid. 
 
 Reservation of the best rent that can 
 be got applies to the best rent at 
 the time of the lease made. 177 
 
 Effect of the copulative " and" and 
 the disjunctive "or," in reserving 
 rent. 178
 
 6^ 
 
 INDEX. 
 
 " Yielding and paying" so much 
 rent, applies to all the time of the 
 estate. ' 178 
 
 Rent payable yearly is payable dur- 
 ing the term. ibid. 
 
 A yeai'ly rent when deemed in 
 arrear if any part of the half year 
 were unpaid. 181 
 
 Rent must be computed according 
 to the reddendum, in what case. 
 
 ibid. 
 
 In what case according to the haben- 
 dum, ibid. 
 
 By entry into any part of the pre- 
 mises the rent is suspended. 18G 
 
 Except such entry be by virtue of 
 d power, or as a trespasser, ibid. 
 
 Acceptance of (single) rent, accrued 
 after notice to quit, is a waiver of 
 landlord's right to double rent. 
 
 337 
 
 Rent, when due. 186 
 
 See Acceptance, Apportionment, Con- 
 Jirmation, Demand, Entry, Pay- 
 7nent, and the respective Actions. 
 
 Repair. 
 See Covenant, Fire, S^c. 
 
 Replevm. 
 
 Nature of the action. 466 
 
 Who may have replevin. ibid. 
 
 What property the party must have 
 
 in the goods. 467 
 
 Right to replevy remains till goods 
 
 are sold. ibid. 
 
 Against whom replevin lies. . 468 
 Replevin Ues, for what things, ibid. 
 Of the several kinds of replevin. 
 
 468 
 Out of what Court replevin issues. 
 
 469 
 How removed into a superior Court. 
 
 ibid. 
 Replevin may be in the dctinet or 
 
 detinuit. 170 
 
 General mode of proceeding is by 
 
 plaint. ibid. 
 
 Of the pledges, their sufficiency, 
 
 ^t. 171 
 
 How to make replevin when the 
 
 distress is for rent. 472 
 
 Of the writs in replevin. 473 
 
 Of the withernam. ibid. 
 
 Of the writ of second dpUverance. 
 
 474 
 
 Of the writ de relorno hubcndo. 
 474, 475, 47G 
 
 Of returns irreplevisable. 477 
 
 How processes are to be executed. 
 
 ibid. 
 
 Of the declaration in replevin. 478 
 
 Of the pleas. 479 
 
 Of removing the suit into a superior 
 Court. ^ 480 
 
 How if commenced by pone. ibid. 
 
 How if by plaint. ibid. 
 
 Plaintiff must declare de novo. 481 
 
 How a party is to be compelled to 
 proceed. ibid. 
 
 Quare. If plaintiff is authorized to 
 enter a common appearance for 
 defendant. 482 
 
 Cause when remanded to County 
 Court. ibid. 
 
 Proceedings not staid without pay- 
 ment of the costs. ibid. 
 
 An avowry is in the nature of an 
 action, and an avowant in the 
 nature of a plaintiff. ibid. 
 
 An avowry therefore, like any other 
 declaration, need be good only to 
 a common intent. ibid. 
 
 But it must shew what certainty. 
 
 ibid. 
 
 So, plaintiff need not aver hoc para- 
 tus, &^c. ibid. 
 
 If the plaintiff claim property, the 
 avowant must shew his right to 
 distrain. ibid. 
 
 The defendant cannot have return 
 of more cattle than he distrains 
 for. ibid. 
 
 How, where avowry is for rent ar- 
 rear if a clause direct a demand. 
 
 ibid. 
 
 How, if the clause be no more than 
 the law speaks. ibid. 
 
 A demand must be laid, in what 
 case. ibid. 
 
 An avowry therefore held ill for a 
 nomine p(cna;, though good for 
 the rent. 483 
 
 But want of demand was cured 
 where issue was on a collateral 
 matter. 484 
 
 Avowry abated for part of the rent. 
 
 ibid. 
 
 How, where avowry is made for se- 
 veral rents. ibid. 
 
 Avowry may be for i)art of a rent 
 charg*' at one time and part at 
 another. i^id-
 
 INDEX. 
 
 6$7 
 
 Avowry for more than is due may 
 
 be cured. 484 
 
 Parceners and joint-tenants must 
 
 join ill an avowry. 485 
 
 But not tenants in common, ibid. 
 
 f50, in replevin against two, who 
 
 made several avowries in their 
 
 respective rights, both avowries 
 
 were abated, for what reason. 
 
 ibid. 
 How, if one distrain for rent and 
 before avowry the estate deter- 
 mine, ibid. 
 The defendant in replevin need not 
 set out his title. 486 
 How, where the rent reserved at the 
 time of entering on the premises 
 was afterwards varied by agree- 
 ment, ibid. 
 Nil hnbuit, Sfc. an inadmissible plea. 
 
 ibid. 
 Though the plaintiff misrecite his 
 title, judgment may be, provided 
 he shew what. 487 
 
 How, if executors avow under stat. 
 32 H. 8. c. 37. ibid. 
 
 An avowry by husband alone good, 
 in what case. 488 
 
 Though defendant be entitled to the 
 rent, yet the taking may be torti- 
 ous, ibid. 
 Tender must be made before im- 
 pounding, otherwise the taking is 
 not tortious. ibid. 
 What are good pleas to avowry for 
 I'ent. ibid. 
 The plaintiff may pay into court the 
 rent avowed for. ibid. 
 A set-off cannot be pleaded. ibid. 
 Neither can a mutual demand be 
 given in evidence. ibid. 
 Whether a mutual debt may be spe- 
 cially pleaded. ibid. 
 Non cepit no good traverse, in what 
 case. 565 
 Plea not suffered to be withdrawn 
 and avowry confessed, in what 
 case. ibid. 
 What shall be a departure from the 
 plea. 489 
 Where the commencement of rent 
 appears, seisin is not material. 
 
 ibid. 
 
 Of avowry, 8fc. for cattle damage 
 
 . feasant. 490 
 
 The judgment in replevin can be 
 
 .oaly for damages. 491 
 
 Upon judgment by default a writ 
 of inquiry shall be awarded. 49^ 
 The judgmtnt need not express the 
 return to be irreplevisable, ibid. 
 Pleadings in replevin are within stat. 
 4 Arm. c. 16. 493 
 
 Of the costs when some issues are 
 found for the plaintiff and some 
 for the defendant. ibid: 
 
 Certificate of probable cause not re- 
 quired, ibid. 
 Defendant may sign a non. pros., and 
 enter up judgment, in what cases. 
 
 494 
 How to proceed if before issue 
 joined. 495 
 
 If plaintiff become nonsuit, defend- 
 ant may either proceed under the 
 statute 17 Car. 2. c. 7. or go 
 against the plaintiff and his sure- 
 ties on the replevin bond. ibid. 
 The statute does not alter the judg- 
 ment at common law, but only 
 gives a further remedy. ibid. 
 The Court will permit defendant to 
 amend his judgment and make it 
 a common law judgment, in what 
 case. ' ibid. 
 
 Even after a writ of error brought. 
 
 ibid. 
 Whether a writ of inquiry can be 
 granted to supply a defective ver- 
 dict. 496 
 If there has been no avowry the 
 writ of inquiry will be set aside. 
 
 ibid. 
 
 Of the remedies where ih^ pledges 
 
 prove insufficient. 497 
 
 By action on the case against the 
 
 sheriff. ibid. 
 
 The Court will not proceed in a 
 
 summary way by attachment, ibid. 
 
 Against the bail, by sci.fa. 498 
 
 By scire facias against the pledges. 
 
 499 
 By proceeding on the replevin bond. 
 
 ibid. 
 
 The sheriff cannot take money or 
 
 cattle as a pledge. ibid. 
 
 Of the pledges according to stat. 
 
 17 C. 2. ibid. 
 
 Who are liable for their suffi- 
 
 ciency. 
 
 JRescous. 
 
 I A rescous, what. 
 
 ibid. 
 
 310, 515
 
 638 
 
 INDEX. 
 
 Remedies for pound-breach and res- 
 cous. 310, 313 
 
 See Distress. 
 
 See Rent. 
 
 Reservation. 
 
 Reversion. 
 
 See Case, Entry and Re-entry, Rent, 
 SfC. and the respective Actions. 
 
 Right of Way. 
 
 See Way. 
 
 Seal. 
 See Deed. 
 
 Seizure, 
 
 See Removal, 
 
 Sheriff, 
 
 See Execution, Renewal, Forcible 
 Entry. 
 
 Spiritual Pei'sons. 
 
 See Ecclesiastical Persons. 
 
 Stamps. 
 
 A lease must be stamped as a lease 
 by deed, though it be not by 
 deed. 29 
 
 A deed is good though executed 
 before it is stamped. ibid. 
 
 But it must be stamped to be ad- 
 missible in evidence. 30 
 
 A deed is valid, though stamped 
 with a stamp of greater value, in 
 what case. ibid. 
 
 An assignment of a lease by in- 
 dorsement should be stamped. 
 
 ibid. 
 
 Though a parol-lease for three 
 years, is good, yet if the party 
 reduces it to writing, it must be 
 stamped, ibid. 
 
 Inventories must be stamped, ibid. 
 
 So must an executory agreement, in 
 what case. 37 
 
 See Agreement, Assumpsit, fyc. 
 
 Statute-Merchanty and Statute- 
 Staple. 
 
 Of leases by tenants by statutes- 
 Merchant and Staple. 82 
 
 Their leases are conditional. 83 
 They may make admittances to, and 
 
 grant copies of, copyhold lands, 
 
 in what cases. ibid. 
 
 Their interests are assignable, in 
 
 what cases. ibid. 
 
 In what cases no assignment can be 
 
 made. ibid. 
 
 The conusee of a statute-merchant 
 
 may bring ejectment. 355 
 
 Such conusee must prove what. 396 
 
 Subscribing Witness. 
 
 A lease must be proved by the sub- 
 scribins: witness. 13 
 
 Sufferance, Tenant at. 
 
 Who is such. 175 
 
 He cannot either underlet or sur- 
 render. 61 
 
 Surrender. 
 
 A surrender, what. 125 
 
 Incidents requisite to make a good 
 surrender. 133, 134 
 
 One who cannot grant cannot sur- 
 render. 134 
 
 One who cannot take by grant, can- 
 not take by surrender. ibid. 
 
 A surrender, by what words made. 
 
 125 
 
 Circumstances requisite in a sur- 
 render, ibid. 
 
 A surrender differs from a release, 
 in what. 126 
 
 Upon what estate a surrender may 
 operate. 127 
 
 A separate lease of lands in two 
 places to one party, not a surren- 
 der. 131 
 
 Acceptance of a new lease, a sur- 
 render. 128 
 
 Acceptance of a rent-charge, 6ic. 
 out of the same lands, works a 
 surrender, in what cases. 123 
 
 In what cases it does not. ibid. 
 
 Of surrender by ecclesiastical per- 
 sons. GG 
 
 Lease in future cannot be actually 
 surrendered before the term com- 
 mences. 133 
 
 But they may be surrendered in 
 law before. ibid. 
 
 An estate granted by way of eur-
 
 INDEX. 
 
 639 
 
 tender docs not need livery of 
 seisin. 106 
 
 Where there is a covenant to sur- 
 render, equity assists lessee to re- 
 tain possession, in what case. 130 
 
 Upon a surrender reserving rent, 
 the rent is pjood by way of con- 
 tract, not of reservation. 176 
 
 Tail Estate. 
 
 See Confirmation, Entry and Re-entry, 
 fyc. and the respective Actions. 
 
 Tail after possibility of Issue 
 extinct. Tenant in. 
 
 Who is such. 38 
 
 His estate equivalent to that for life, 
 
 38 
 He may demise accordingly, ibid. 
 Extent of such tenant's power to 
 demise, see Life, Estate for. 
 
 Taxes. 
 
 The occupier of the premises is 
 liable to pay the taxes. 187 
 
 But a house within the limits of an 
 hospital is not assessable, in what 
 case. 188 
 
 The land-tax is, quoad the public, 
 the tenant's tax. 187 
 
 But as between landlord and tenant, 
 it is the landlord's tax. ibid. 
 
 The tenant may, by statute, deduct 
 the land-tax, and the landlord 
 must allow it. ibid. 
 
 The landlord is to pay only the old 
 land-tax, if a covenant be for te- 
 nant to pay all the taxes except 
 the land-tax. ibid. 
 
 The land-tax act enables the tenant 
 to deduct the tax, " without any 
 deduction," ^c. ibid. 
 
 The tenant not relieved in equity, 
 in what case. 188 
 
 The tenant commonly covenants to 
 pay all taxes except the land-tax. 
 
 243 
 
 The grantee of a fee-farm rent is 
 exempt from the land-tax, in 
 what case. ibid. 
 
 A statute authorizing the tenant to 
 
 deduct, will not repeal his cove- 
 
 = '«ant.- i^^' i'J "^ ibid. 
 
 A covenant to pay " all taxes," ap- 
 plies to what. 243 
 
 So, a covenant to discharge from 
 taxes, extends to what. ibid. 
 
 A covenant to have lands discharged 
 of all rents, discharges from a 
 quit-rent. ibid. 
 
 A covenant to pay taxes on the 
 land does not extend to personal 
 charges. ibid. 
 
 " Taxes," generally, signifies par- 
 liamentary taxes, ibid. 
 
 If tenant covenant to pay " all 
 taxes," he is liable to pay what 
 taxes. ibid. 
 
 Tenancy. 
 
 See Acceptance, Confirmation, Lessee, 
 Notice, ifc. ii'c. 
 
 Tenants in common. 
 
 Lease to one in his public capacity 
 and to /. S. they are tenants in 
 common. 175 
 
 Their leases (as well as those of 
 joint-tenants), bind, whether they 
 be in pmsenti, or in futuro. 86 
 
 So, a lease by deed-poll or by parol, 
 reserving one rent, enures to both. 
 
 ibid. 
 
 But, if by deed indented, it enures 
 
 to him only who made the lease. 
 
 ibid. 149, 179 
 
 One tenant in common may distrain 
 for his share of the rent. 295 
 
 Tenant per Auter Vie. 
 
 Who is such and how created. 41^ 
 
 104 
 
 Such estate deviseable, or assets in 
 the hands of the heir or repre- 
 sentative, ibid. 
 
 Leases of such tenants determine on 
 the death of Cestui que Vie, 41 
 
 Tender, 
 
 See Demand, Distress, and their re- 
 spective Actions. 
 
 Tenement. 
 
 Its signification. 361 
 
 Ejectment will not lie for a tene- 
 ment. ,^^^ > ''^-' ^^»»rf.
 
 640 
 
 INDEX. 
 
 Tenendum. 
 Tenendum, in a deed, nature of. 11 
 
 Term. 
 
 The word comprehends as well Ihe 
 interest in the land, as the time. 
 
 115 
 
 Called a term of years, in what case. 
 
 110 
 
 Terms created for particular pur- 
 poses are not accounted leases. 
 
 ihid. 
 
 Therefore they attend the inheri- 
 tance, when the purpose is answer- 
 ed, ibid. 
 
 But generally a term, however long, 
 is but a chattel and goes to the 
 executor. Ill 
 
 Though devised to one and his heirs 
 male. ibid. 
 
 Except it be limited to attend the 
 inheritance. ibid. 
 
 In which case it may be entailed. 
 
 ihid. 
 
 Which entail will be good, though 
 by different clauses, or a deed exe- 
 cuted at different times. ihid. 
 
 Interesse termini, what meant there- 
 by, ibid. 
 
 It is in the lessee whether the lease 
 be in prtzsenti, or infuturo. ibid. 
 
 Who may grant it to another, ihid. 
 
 The devisee of a term of years may 
 bring an ejectment to recover the 
 term. 355 
 
 But he must shew the assent of the 
 executor. ibid. 
 
 Which may be done, how. ibid. 
 
 Terrier, 
 
 See Survey. 
 
 Timber. 
 See Estovers, Waste. 
 
 Tithes. 
 
 Tithes, what. 99 
 
 Are an incorporeal hereditament. 
 
 ibid. 
 May 1)6 demised. ibid. 
 
 An action oi'dcbt will lie for arrears 
 
 of rent lor tithes. 100 
 
 A condition may be annexed to a 
 
 j,'rant of tithes. iJ37 
 
 Any one who has an estate of inhe- 
 ritance in tithes may bring eject- 
 ment or other action for them. 
 
 359 
 The proprietors of tithes are rate- 
 able to the relief of the poor. 
 
 198 
 Case lies against the proprietor of 
 tithes for not taking them away. 
 455, 526, G08 
 But trespass vi et armis, Avill not. 
 
 526 
 See Church, Rector. 
 
 Title. 
 
 See Pleading, Recital, bfc. and the 
 respective Actions. 
 
 Toll. 
 Toll is an incorporeal hereditament. 
 
 Tolls are deiniseable. lOO 
 
 Tolls, not rateable to the poor's rate. 
 
 196 
 
 Tools. 
 
 The tools and utensils of a man's 
 trade cannot be distrained, ii> 
 what case. 299 
 
 Secus, if they be not in use, or any 
 other distress can be had. ibid. 
 
 Implements of husbandry, and 
 beasts of the plough, are exempt, 
 in what case. ibid. 
 
 The contrary rule prevails with re- 
 gard to distress for poor's rate. 
 
 206, 300 
 
 Trees. 
 
 Sep Timber, Waste. 
 
 Trespass. 
 
 See Distress, Execution, Removal, 
 Waste, Sfc. 
 
 Trover. 
 
 Trover for timber severed may be 
 brought, by whom. 219 
 
 If a stranger cut down timber, the 
 lessor may bring trover for it. 
 
 ibid. 
 So, it lies against an executor who 
 converts timber to his own use. 
 
 453 
 8
 
 INDEX. 
 
 G41 
 
 But a bill in equity may be advise- 
 able. 453 
 
 Trover may be brought for an article 
 improperly distrained. 299 
 
 The distinction between trover and 
 trespass. 510 
 
 Trust. 
 
 Of terms in trust. 152 
 
 The husband shall have the trust of 
 
 a term in right of his wife, except 
 
 in special cases. 74 
 
 Turhary. 
 
 See Estovers. 
 
 Use and Occupatimi. 
 See Assumpsit, Occupancy. 
 
 Uses. 
 See Po'dier, Waste. 
 
 Vacant Possession. 
 See Ejectment, Possession. 
 
 Void and Voidable. 
 
 See Acceptance, Confirmation, Entry, 
 and Re-entry, Lease, 3fc. 
 
 Waiver. 
 See Acceptance, Confirmation, Not ice. 
 
 Watercourse. 
 
 Ejectment will not lie for a water- 
 course or stream of water. 363 
 
 It should be " of so much land 
 covered with water." ibid. 
 
 See Land. 
 
 Way. 
 
 A way or right of way is demiseable 
 with land. 100 
 
 For the grantee or lessee shall have 
 all ways, B^c. which the grantor 
 or lessor had. 101 
 
 If a man reserve to himself a way, 
 he cannot use it but at reasonable 
 times and upon request. ibid. 
 
 Ejectment will lie by the owner of 
 the soil for land subject to a pas- 
 sage over it. 359 
 
 It shall be recovered subject to the 
 easement. ibid. 
 
 Of obstruction of a right of way. 536 
 
 A right of way originates, how. ibid. 
 
 By special permission. ibid. 
 
 By prescription- ibid. 
 
 As if a man grant a piece of ground 
 in his field, he gives a way to 
 come at it, how. 536 
 
 Remedy for obstruction of way, see 
 Case and Trespass. 
 
 Of the remedy by writ of quare ob- 
 struxit. 538 
 
 Who is entitled to this writ. ibid. 
 
 Nature of such writ. ibid. 
 
 It lies against whom. ibid. 
 
 Waste. 
 
 Is voluntary or permissive. 207 
 
 What acts amount to waste. ihid. 
 Rule respecting fixtures. ibid. 
 
 Fixtures must be removed within 
 the term to constitute waste. 
 207, 208 
 What things are denominated fix- 
 tures. «p9 
 Of the diflTerent parties between 
 whom questions respecting fix- 
 tures arise. 213 
 General rule upon the subject. 214 
 Waste may be done in houses, how. 
 
 217 
 
 Cutting timber waste. 218 
 
 Except for repairs, ibid. 
 
 Digging for gravel, Ifc. waste. 220 
 
 Converting arable into pasture, ^-c. 
 
 waste. 220 
 
 Of the remedies for waste at the 
 
 common law. 440 
 
 Of the remedies by the statutes of 
 
 Marlbridge and Gloucester, ibid. 
 
 Court of Chancery will not restrain 
 
 tenant in tail from committing 
 
 waste. 441 
 
 Damages recoverable under statute 
 
 of Gloucester. ibid. 
 
 Of the writ of Estrepement. ib. 442 
 
 Of the writ of waste. 449 
 
 A purchaser shall have an action of 
 
 waste. Hid, 
 
 So a parson or prebendary. ibid. 
 
 So a lessor though lease has expired. 
 
 443 
 Tt
 
 642 
 
 INDEX. 
 
 So grantee of reversion. 443 
 
 Waste lies against an executor de 
 son tort. 444 
 
 An occupant shall be punished for 
 waste. ibid. 
 
 Of the custom of London respecting 
 waste. ibid. 
 
 Who is entitled to action of waste 
 against tenant for life. ibid. 
 
 It is a mixed action. ibid. 
 
 Of the process in the action. 445 
 
 The plaintiff must shew his title, 
 
 ibid. 
 
 The declaration must state what. 
 
 446 
 
 The general issue is no waste done. 
 
 ibid. 
 
 Of pleas in excuse. 447 
 
 Of replications and rejoinders. 448 
 
 Of the judgment in the action. 449 
 
 Of trover for waste. 27^2^. 
 
 Of case in the nature of waste. 450 
 
 Either case or trespass for waste 
 committed lies, against whom. ib. 
 
 Case, as the preferable remedy, is 
 usually brought. ibid. 
 
 Of the remedy in equity for waste. 
 
 451 
 
 The court of Chancery has a concur- 
 rent jurisdiction with the courts 
 of common law. ibid. 
 
 The relief aflbrded by a court of 
 equity often preferable and some- 
 times necessary. ibid. 
 
 Prohibition went at common law, 
 against whom. ibid. 
 
 Ujjon a bill for an injunction the 
 Court will stay waste. ibid. 
 
 Equity aids the remainder-man, re- 
 versioner, or lord, in what case. 
 
 ibid. 
 
 An injunction will be granted in be- 
 half of an infant in ventre sa mere. 
 
 ibid. 
 
 The tenant is dispunishable of waste, 
 in what case, and how far re- 
 strained or not. ibid. 
 
 An injunction may be applied for 
 innnediatcly, in what cases, ibid. 
 
 Equity will interpose though a 
 mesne remainder be. 452 
 
 So, <quity will restrain tenant for 
 life t'lom doing what. ibid. 
 
 But will nut decree him to rej)air. 
 
 ibid. 
 
 So against an under-tenant at ilie 
 suit of the tcround landlord, ibid. 
 
 So, a mortgagor may have an in- 
 junction against the mortgagee, 
 and vice versa. 452 
 
 A rector will be restrained from 
 cuttingdown timber in the church- 
 yard. 453 
 
 Where the defendant sets up a right 
 to the inheritance, the Court will 
 refuse an injunction till the an- 
 swer come in. ibid. 
 
 Except in certain cases. ibid. 
 
 Whether a bill for an account of 
 timber felled may be brought, 
 seems doubtful. ibid. 
 
 On motion to stay waste, a particu- 
 lar title must be shewn. 454 
 
 A suit for waste is not a breach of 
 covenant for quiet enjoyment. 512 
 
 Covenant, not waste, is the proper 
 remedy on a proviso that the les- 
 sor may cut down trees. 444 
 
 See Covenants, Estovers, Trespass, 
 
 " ife. 
 
 See Baron, and Feme-covert. 
 
 Will. 
 See Bailiff, Guardian, Notice, Sfc. 
 
 Withernam. 
 See Replevin. 
 
 Witness. 
 
 Presence of witnesses necessary to 
 render the execution of a deed 
 valid. U 
 
 When there is a subscribing wit- 
 ness he must be called. ibid. 
 
 The tenant cannot prove the lact of 
 possession in an action of eject- 
 ment. 397 
 
 But the landlord is competent to 
 prove the terms of his own de- 
 mise, in what case. ibid. 
 
 A grantee may prove the execution 
 of the deed to himself if he be a 
 bare trustee. 398 
 
 An heir apparent may be a witness 
 concerning the title of the land. 
 
 ibid. 
 
 lilt the remainder-man cannot, ibid. 
 
 Neither can tenant-in-tail, remain- 
 Icr-in-lail, ^c. ibid.
 
 INDEX. 
 
 643 
 
 An executor may be a witness if he 
 has not the surplusage by the 
 will. 398 
 
 An executor in trust may be a wit- 
 ness, ibid. 
 
 An executor may be a witiKss 
 though liable as executor de son 
 tort. ibid. 
 
 So, an executor who takes not any 
 beneficial interest may prove his 
 testator's sanity. ibid. 
 
 Who may prove the title of the ven- 
 dee of the inheritance. ibid. 
 
 Declarations by tenants are admissi- 
 ble evidence after their death to 
 shew whether a piece of land be 
 parcel or not. ibid. 
 
 Husband and wife can in no case 
 be witness for or against each 
 other. ibid. 
 
 If a person interested execute a sur- 
 render or release, he becomes 
 competent. 399 
 
 So, though the party refuse to ac- 
 cept the surrender or release, ibid. 
 
 On motion for a new trial, no ob- 
 jection to a witness can be re- 
 ceived, which was not made at 
 the trial, ibid. 
 
 Even an objection discovered after 
 the trial is not a sufficient ground 
 for a new trial. 399 
 
 See Demand, Evidence, Notice. 
 
 Wood. 
 
 See Copyholders, Covenant, Estovers, 
 Waste. 
 
 Years f Estate J'o}\ 
 
 Oritiin and nature of such estate. 
 
 110 
 
 Estate for years deemed chattels, 
 and cast upon the Executor. 2 
 
 Of the commencement of a lease for 
 years. Ill 
 
 It may commence eith^ inprdsenti 
 or in futuro. ibid. 
 
 If intended to commence in futuro 
 and the \)x\ox lease be void, or 
 misrecited, it shall begin pre- 
 sently. ' ibid. 
 
 In case of an impossible date, the 
 lease shall commence from the 
 delivery. 112 
 
 In case of an uncertain date, the 
 lease is void. 112 
 
 For all leases for years must be cer- 
 tain, ibid. 
 
 A lease may commence at one day 
 in point of computation, and at 
 another in point of interest. 113 
 
 Leases for years void for uncertain- 
 ty, in what cases rendered good 
 leases for life by livery of seisin. 
 
 117 
 
 Entry necessary in a lease for years, 
 to vest the estate in the lessee, ibid. 
 
 Lessee is not tenant to many pur- 
 poses till he enter. ibid. 
 
 His estate before entry, what. ibid. 
 
 If the lessee die before entry, his 
 executors, 4'c. may enter. 118 
 
 If one of two joint lessees die before 
 entry, his interest survives, ibid. 
 
 The duration of a lease for yeai's 
 must be ascertained or ascertain- 
 able, ibid. 
 
 Else the lease will be void. ibid. 
 
 A lease for years, without saying how 
 many, is good for two years, ibid. 
 
 A lease while it please both parties, is 
 but a lease at will. ibid. 
 
 Where a parson demises for a year 
 and so on while he continues par- 
 son, it is what lease. ibid. 
 
 A lease for three, six or nine years, 
 determinable in 1788, 1791, and 
 1794, good for nine years deter- 
 nfuiable at the end of three or six 
 ■ears. 120 
 
 le having an interest for three 
 ears demises for five, the lease is 
 good for three years. 121 
 
 lease made while another exists is 
 good for the term beyond the first 
 lease. 122 
 
 *A lease for years may cease and re- 
 vive again in divers cases. ibid. 
 
 Acceptance of a lease for years sus- 
 pends a rent- charge for life. ibid. 
 
 Termination of a lease for years, how 
 eilected. ibid. 
 
 By effluxion of time. ibid. 
 
 By merger. 123 
 
 By surrender. 125 
 
 By cancelling the deed of demise. 
 
 141 
 
 By condition within the lease or in- 
 dorsed thereon. 142 
 
 By forfeiture of the lease. ibid. 
 
 Of leases for years in reversion. 144 
 7
 
 644 
 
 INDEX. 
 
 Of future interests. 150 
 
 Of leases for years by way attorn- 
 ment. 145 
 ■ of estop- 
 pel. 146 
 
 in trust. 152 
 
 by way of mort- 
 gage. 153 
 
 See Acceptance, Administrators and 
 Agreements, Rent, Renewal, Rever- 
 sion, Future Interest, ^c. ^c. and 
 the respective Actions. 
 
 Year to Year, Tenancy from. 
 See Notice, Fences, ifc. 
 
 APPENDIX OF PRECEDENTS. 
 
 Page 
 
 Agreement for a lease of a house and field , 543 
 
 for a farming lease 544 
 
 to let lodgings 546, 547 
 
 A lease for years of a house and lands in the country, with the 
 
 exception of trees, and special covenants 547 
 
 An indorsement for continuing a lease for a longer term, after 
 
 the expiration of the present 554 
 
 A building lease 556 
 
 Lease of a house in town 560 
 
 Covenant by the lessee not to use or assign the premises for any 
 
 offensive trade 565 
 
 An assignment of leasehold interest by deed-poll indorsed on 
 
 the lease 566 
 
 Forms of notices to quit, Sfc 567 
 
 How to make a distress for rent-an-ear, and of the sale of the 
 
 same 570 
 
 Precedents of pleadings in replevin 574 
 
 Proceedings in ejectment 587 
 
 THE END. 
 
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