^K&3a&$ :^.7;j:U^r^.>^ » o". ' • . •?r ■.-Ut>;jii;*;i;.£w^ji;_:-;»j^-i;r;;^:;; OF A iO^ ANGELES COUNTY THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW s the Property the LOS ANGELES tuONTY LAW LIBRARY If found elseivhere than in Law Library, please return^, or notify Librarian. j-» v ' Books belonging to this Library are never sold, exchanged or given away. LAW LIBRARY, OF LOS ANGELES COUNTY^ ■» " , , * J L A W^^ :^ > > REAL PROPE R T Y, IN ITS PRESENT STATE; PBACTICALLT ARRANGED AND DiaESTED IN ALL ITS BEANCHES, INCLUDING THE VERY LiVTEST DECISIONS OF THE COURTS. BY GEORGE CRABB, Esq., BARRISTER-AT-LAW. ITH NOTES AND REFERENCES TO AMERICAN DECISIONS BY A MEMBER OF THE PHILADELPHIA BAR. VOL. I. PHILADELPHIA: T. & J. W. JOHNSON, LAW BOOKSELLERS, PUBLISHERS, AND IMPORTERS, 197 CHESNUT STREET. 1846. ' ' "^ I ■ c c c < ( f f t «-« e * « c • « c e «e* c c c T ^ P R E F A C E. This Work, which has employed the Author's leisure time for upwards of ten years, is distinguished from every other in several particulars. In the first place, it is confined to the Law in its Present State. What- ever is mere matter of history has been excluded ; and that which has been abolished by statute, but remains in force in respect of past transactions, has been briefly touched upon. In the next place, it is confined to the Law as settled by the Decisions of the Courts, so far as any thing in law can be considered as settled. That which is confessedly not settled has been noticed, so as to show the state of the Law, without entering into discussions on doubtful points, which may be found treated of at large in other treatises. By thus confining the Work to what is wanted in ordinary practice, the Author has been enabled, without swelling it to an immoderate size, to embrace the whole of the Law of Real Property, of which particular parts only are considered in other works. As, in a Treatise professing to give a connected view of a subject, arrange- ment is obviously an essential ingredient, this Work is on that score also (whether for the better or the worse) distinguishable from others. Except as regards the general outlines, in which the plan of Sir Matthew Hale (afterwards adopted by Sir William Blackstone) has been partially followed, the endeavour has been to make all the matter follow in such order as shall serve to give a clear and distinct view of the several points, and their con- sequent bearings on the subject in question. The Statutes on the Transfer of Property, though passed late in the Session, have been noticed in their proper places, as also the latest Decisions, including those of the present year until the closing of the Courts. What relates to the subject of Conveyancing, and to the Statutory Pro- visions concerning Real Property, is noticed by a reference to the Author's " Precedents in Conveyancing," and " Digest and Index of all the Statutes." 16, Southampton Buildings, Chancery Lane. 729265 • •• • • • • • » • * • * TABLE OP CONTENTS. BOOK 1. NATURE OF REAL PROPERTY IN GENERAL. CHAPTER L DISTINCTION BETWEEN REALTY AND PERSONALTY. SECT. I. DEVOLUTION OF REALTY AND PEESONALTY. Chattels Real 5 7 Chattels Personal . . . • 1^ SECT. II. LIABILITY FOR THE PAYMENT OF DEBT3. 33 37 Real Assets . . . • • Personal Assets . . • • ^ Fund for the Payment of Debts . • ' dt Personal Estate the primary Fund . • • ^^ Order of paying' Debts out of Realty Marshallino- Assets . . • • 50 51 SECT. III. RECIPROCAL CONVERSION OF REALTY INTO PERSONALTY AND VICE VERSA. Conversion of Money into Land . • ' rq Conversion of Land into Money . • • |°^ Conversion in Cases of Infants, Lunatics, and Partners . • ^^ Statutes relating to Property ^ . • °'* VI CONTENTS. CHAPTER II. CORPOREAL HEREDITAMENTS. SECT. I. LAND. What passes by the Name of Land . . 5 86 By what Names the Soil will pass . . 67 SECT. II. MANORS. Definition of a Manor, &c. . . . .83 SECT. III. HOUSES. Protected by the Law, &c. . . .69 SECT. IV. CnURCHES. Wliat comprehended under the Word " Church," &.c. . 90 SECT. V. MILLS. Suit at Mill, «fec. . . . . .93 SECT. VI. COMMONS AND WASTE LANDS. Distinction between Commons and Waste Lands, &c. . . 9-4 SECT. VII. WOODS AND TREES. Freehold in Trees, &.c. . . . .96 SECT. VIII. FORESTS AND CHASES, ETC. Distinction between a Forest, Chase, and Park . . 97 SECT. IX. MINES AND MINERALS. Property in Mines .... 98 Grant of Mines . . . . 99 Rigl)t to worker open Mines . . 100 Rateability of Mines .... 101 CONTENTS. TU Public Ways Private Ways The Sea Public Rivers Private Rivers Canals, Docks, &c. Ponds, Decoys, &,c. Sewers SECT. X. WAYS. SECT. XI. WATER. 1} 102 103 105 107 108 110 111 113 CHAPTER III. INCORPOREAL HEREDITAMENTS. SECT. I. OP INCOKPOREAL HEREDITAMENTS IN GENERAL. What is an Incorporeal Hereditament, &c. SECT. II. ADVOWSONS. iVature and Properties of Advowsons Different Kinds of Advowsons Presentation .... Grant of an Advovvson .... How it passes in a Grant Appropriation and Impropriation Incidents to an Advowson SECT. III. TITHES. Nature, &c., of Tithes Law of Tithes and Rent-charges under- the Tithes Commutation Acts SECT. IV. RENT. Nature of Rent, and its different Kinds Creation and Reservation What Estates may be had in a Rent Payment of Rent .... Extinguishment and Suspension of Rent Apportionment of Rent .... Recovery of Rent .... 115 117 119 120 126 ib. 129, 130 131 1.3.3 141 150 157 178 191 208 210 221 VUl C O N T E K T S. ^ SECT. V. A:fNriTIE3 OR RE>-T-CHARGE5 How an Annuity may be granted or created . . • { 260 Estate in an Annuity .... 262 Apportionment of an Annuity .... 264 Recovery of an Annuity .... 266 SECT. VI. BIGHT OF C03I3ION. Nature of a Right of Common, and its different Kinds . . 267 Incidents to a Right of Common . . , 307 314 329 • « t OOfJ 335 347 348 Interests of the Lord and Commoner Alienation of Right of Common Apportionment of Common Extinguishment of Common Revival of Right of Common Injuries to Right of Common SECT. VII. RIGHT OF WAV. Nature of the Right, and its Extent . . . 361 How claimed .... 363 User of the Right . . . . .376 How lost, destroyed, or extinguished . . . 382 Suspension and Revival of the Right . . . 391 Disturbance or Interruption of the Right . . 393 SECT. VIII. RIGHT TO WATER AND WATERCOURSES. Nature and Extent of the Right .... 399 How claimed ..... 411 How used ..... 418 How lost ..... 424 Disturbance of the Right, and the Remedies . . . 427 SECT. IX. RIGHT TO LIGHT AND AIR. Nature and Extent of the Right .... 445 How claimed ..... 450 How used ..... 455 How lost ..... 459 Disturbance of the Right, and the Remedies . . . 463 SECT. X. RIGHT TO PEWS AND OTHER EASEMENTS. How Right to Pews may be claimed . . . 481 Disturbance of the Right, and the Remedies . . 404 Right of Burial . • • • ' SS Right to Support from Land or Buildings . . 500 Right to have Fences maintained . • • 508 Right to hang Linen to dry over the Soil of another . 510 Right to Land with Nets, &,c. . . • • 511 CONTENTS. IS SECT. XL OFFICES. Nature of an OfEce, and the different Kinds . . .J 530 How created . . . • • o34 How granted . . . • . 536 Who may hold Offices .... 554 Execution of an Office .... 560 What Estates may be had in an Office . . . 570 How forfeited or lost ..... 576 Disturbance of an Office .... 595 SECT. XII. DIG>'ITIES. How distinguished ..... 599 How claimed or created .... 600 What Estates may be had in a Dignity . . . 605 How lost or recovered .... 613 SECT. XIII. FRANCHISES. The Nature of a Franchise, and its different Kinds . . 623 How claimed . . . . ~. 729 How lost or destroyed . . . .731 BOOK II. OF TENURES. CHAPTER I. OF THE NATURE OF TENURES IN GENERAL. 733 CHAPTER II. MODERN FREE TENURES. SECT. I. SOCAGE TENURE, AND ITS INCIDENTS . , .741 SECT. II. GRAND AND PETTY SERJEANTRY . . . 747 SECT. III. TENURE IN BURGAGE .... 749 CONTENTS. SECT. IV. TENURE IN GAVELKIND SECT. V. TENURE IN FRANKALMOIGNE § 753 761 CHAPTER III. COPYHOLD AND OTHER BASE TENURES. SECT. I. C0M3I0N COPYHOLDS. What is a Copyhold, and the Requisites thereto Incidents to Copyholds Demise of Copyholds Rights and Interests of Lord and Tenant Estates in Copyholds Alienation of Copyholds Extinguishment of Copyhold Tenure Injuries in respect of Copyholds, and their Remedies . SECT. II. PRIVILEGED COPYHOLDS. Customary Freeholds Ancient Demesne 765 770 819 845 2354 2440 864 901 920 924 BOOK III. OF ESTATES. ESTATES IN GENERAL. CHAPTER I. 943 CHAPTER II. ESTATE IN FEE SIMPLE. What is a Fee Simple How the Fee may be divided By what words a Fee Simple may be created . In what Things an Estate in Fee Simple may be had Incidents to an Estate in Fee Simple 948 952 955 964 965 CONTENTS. » CHAPTER in. ESTATE IN FEE TAIL. What is a Fee Tail . . . . J 970 Thedifferent Kinds of Estates Tail . . 972 How created . . . • . 975 What Things may be entailed . . . 992 Interest and Power of Tenant in Tail . . . 999 Issue in Tail . . , , . 1006 Incidents to an Estate Tail .... 1012 How lost ..... lUIG CHAPTER IV. ESTATES FOR LIFE. SECT. I. ESTATE FOR LIFE. Its Nature and different Kinds .... 1020 How created .... 1023 Of what Things there may be an Estate for Life . . 1032 Rights and Liabilities of Tenant for Life . . 1033 Incidents to an Estate for Life . . . .1041 How an Estate for Life may be lost . . . 1060 Injuries relating to an Estate for Life . . . 1065 SECT. II. ESTATE TAIL AFTER POSSIBILITY OF ISSUE EXTINCT. What it is . . . . . 1066 What it has in common with an Estate Tail . . 106S What it has in conimoa with an Estate for Life • . 1072 SECT. III. ESTATE BY THE CURTESY OF ENGLAND. Nature of the Estate, and the Requisites thereto . . 1074 Who may be Tenants by the Curtesy . . 1093 Of what Estates there may be Tenants by the Curtesy . . 1099 Of what Things there may be an Estate by the Curtesy . 1104 Incidents to an Estate by Curtesy . . , 1110 How an Estate by Curtesy may be lost . . 1113 SECT. IV. ESTATE IN DOWER. The Nature and different Kinds of this Estate, and the Requisites thereto 1117 Who may be endowed, or otherwise . . . 1126 xu CONTENTS. Of what Estates there may be Dower . , Of what Things there may be Dower . Assignment of Dower . . . Rights, Interests and Liabilities of Tenant in Dower How Dower may be lost . . . Recovery of Dower . SECT. T. ESTATE IX JOIXTrKE. How a Jointure is created, and the Requisites thereto Equitable Jointures How a Jointress is aided in Equity Interest of the Jointress, and Power over her Estate How an Estate in Jointure may be forfeited or lost 5 1129 1132 1140 1159 1168 1203 1213 1223 1230 1249 1255 CHAPTER V. ESTATE FOR YEARS. The Nature of the Estate How an Estate for Years may be created By whom an Estate for Years may be granted To whom an Estate for Years may be granted, or in whom In what Things it may be had Incidents to the Estate How it may be lost . Renewal of the Estate Injuries affecting the Estate 1267 • 1274 1313 it may vest 1429 1459 • 1463 14S0 • 1523 1541 CHAPTER VI. ESTATE AT WILL FROM YEAR TO YEAR, OR AT SUFFERANCE. SECT. I. ESTATE AT WILL. How it may or might be created How it may be determined 1544 1549 SECT. II. TENANCY FROM YEAR TO YEAR. How the Estate may be created . How it may be determined 1566 1567 SECT. III. ESTATE AT SUFFERAXCE 1597 CONTENTS, XIU CHAPTER YII. EQUITABLE ESTATES. SECT. I. OF USES. Uses at Common Law . . , • 5 1605 Uses since the Statute .... 1621 Who may stand seised to a Use .... 1623 Who may take a Use .... 1626 What Property may be conveyed to Uses . . . 1627 How a Use may be raised or created . . . 1629 Execution of Uses by the Statute . . . 1646 Limitation of Uses .... 1664 How a Use may be defeated or destroyed . . 1693 SECT. II. OF TErSTS. Nature of a Trust in general .... 1703 How a Trust may be created . . . 1T63 How executed ..... 1S04 Of Trustees, their Estate, Office, &c. . . . 1S20 Of Cestui que Trust, his Interest, Rights, &c. . . 1932 Forfeiture of a Trust .... 1956 SECT. III. OF POWERS. or POWERS i.\ GENERAL. Nature of Powers ..... 1959 How a Power is created .... 196.5 How a Power is executed .... 1969 How a Power may be lost . . . 2019 POWERS IX PARTICULAR. Power of Appointment .... 2027 Power of Revocation .... 2065 Power to Jointure or Portion .... 20?6 Power to Lease .... 2093 Power of Sale, Exchange, Partition, &c. . . . 2101 Power to appoint new Trustees, and Powers of Trustees . 2104 CHAPTER Yin. ESTATE ON COXDITIOX. SECT. I. OF ESTATES ON CONDITION IN GENERAL. Nature of Conditions .... 2127 XIV CONTENTS. How a Condition may be created, and to what Estates annexed § 2140a To what Things Conditions may be annexed, and in what Manner . 2147 To whom a Condition may be reserved, and who bound by it . 2150 Distinction between Conditions Precedent and Subsequent . 2152 Performance of Conditions . . . 2161 Breach of Conditions .... 2186 How a Condition may be apportioned or lost . . 2199 SECT. II. Of the Nature of a Mortg^g-e, its different Kinds and Incidents . 2202 Of the Mortgagor, who may be, &c. , . . 2210 Of the Mortgagee, his Rights, &c. . . . 2224 Of Equity of Redemption .... 2260 Of Foreclosure ..... 2281 SECT. III. ESTATES BY STATUTE-MERCHANT, STATUTE-STAPLE, AND ELEGIT 2297 CHAPTER IX. ESTATE IN COPARCENARY. Nature and Properties of the Estate . . . 2296 How created ..... 2298 How Things may be enjoyed in Coparcenary . . 2299 How an Estate in Coparcenary may be destroyed . . 2300 CHAPTER X. ESTATE IN JOINT TENANCY. Nature and Properties of the Estate . . . 2-302 How created . . • • • 2310 How destroyed .... 2312 CHAPTER XI. TENANCY IN COMMON. Nature and Properties of the Estate . . . 2316 How created ..... 2319 How destroyed . . . . • 2321 CONTENTS. xy CHAPTER XII. ESTATE IN REMAINDER. Nature of a Remainder, and the Requisites thereto Of what Things there may be a remainder Of Remainders, vested and contingent Cross Remainders When Remainders are void, lost, or defeated 5 23-23 2327 2329 2339 2341 ESTATE IN REVERSION CHAPTER XIII. 2345 CUSTOMARY ESTATES CHAPTER XIV. 2354 BOOK IV. TITLE TO THINGS REAL. TITLE IN GENERAL CHAPTER I. 2374 Descent at Common Law Descent by Custom TITLE BY ESCHEAT CHAPTER H. TITLE GAINED. SECT. I. TITLE BY DESCENT. SECT. II. 23S9 2412 XTl CONTENTS. SECT. III. TITLE EY PEESCEIPTION, OCCVT.KyCY, ELECTION, ESTOPPEL SECT. IV. TITLE BY ALIENATION .... § 2419 o 117 CHAPTER III. TITLE LOST. SECT. L BY FOEFEITrKE OB DISCLAIMER SECT. II. BY EXTINGUISmiENT, SUSPENSION, SrKRr.NDEK, ANT) MEBGEK 2441 2444 BOOK V. INJURIES TO THINGS REAL, AND THEIR REME- DIES. Ouster Trespass Nuisance Waste Subtraction Disturbance CHAPTER I. rS'JTRIES TO THINGS REAL. 2454a 2453 2461 2465 2471 2472 CHAPTER II. REMEDIES FOR THE rSJITlIES TO THINGS RE-\L. By Act of the Party By Judicial Proceedings 2473 2477 lABLE OF CASES. Abbot T. Barton, Trusts V. Moore, Franchises Abbot of Ramsey's case. Waters Abbot of StroU JlarccDa's case, Fran- chises "^29 Abdy T. Gordon, Election 2427 Abc-rjaveony (Ld.) v. Thomas, Copr- holds 915 Abrahall v. Brown, Estate for Years § 1717 Alder v. SariD, Right to Water 64S Alderman v. Xeate, Estate fi>r Years 105 AJdred'a case. Right to Light, &.C. , Prescriptioa , Nuisance, Aldrich t. Cooper, Assets T. Cooper, Mortgage §437 1294 446 2423 2461 54-53 2277 4d and Norse's case, Ancient De- Aldridge t. Wallscoort, A^ets 12^ Aleworth or Aleway v. Roberts, Dower 1204 mesne S54 Abraham v. Bnbb, Estate Tail after, ic 1060 T. Tw-igg, Uses 1 ^'3 • Accroid v. Smithson, Land and Money Trusts Acc-y V. Simpson, Dower Achcrk-j v. Roe, Trusts V. Vernon, Trusts Ac] and v. Gaisford, Tmsts Actan V. Pierce, 3Iort^ge V. Woodgate, Trusts Acton's case. Manors Franchises Adair v. Shaw, Trusts Adams v. Adams, Trusts V. Adams, Powers V. CUfton, Trusts r. Grane, Rent V. Meyrick, Assets y. Paynter, Trusts ¥. Paynter, Mortgage V. Savag'e, Uses V. Taunton, Trusts Adtimson v. Araiitasre ■r2, 17 Alexander t. Alexander, Estate S>r Years V. Alexander, Trusts V. Alexander, Powers T. Bonnin. Estate for Years 12S4 V. Gres'.am, Assets Al-m V. Belchier. Powers, 1201 Alford T. Al-br-i, Jointure 1355 Allanson r. Ciitherow, Powers Allen V. Abraham, Copyholds ls8 V. Anthony, Mortg^^^e ^51 a T. Bower, Estate for Years 1291 1363 1848 1980 42 20*4 1241 1990, 2653 ITVJ 226r 1779 lAUea and Hill's case. Estate at SaSer- 88| aace 1597 1901 368. 3S7 631 i^ec' Iml^ Trusts Ormond, Rijfat of Way Adderley v. Clavermg, Estate ibr Years 1510 Foalton, Copyholds 782 -j.,r,r V. Poolton, Customarr Estates 2362 1952 V. Sayer, Trusts ' * 1933 235 , T. Spen.41ove, Estate Tail 982 49 • AUeyn v. Allem. Jointure 1233 1 85 1 ' ABgood T. Withers, Estate Tail 991 2-^53 : AQoway v. ALoway, Powers 1959a 16 15 AUport'v. Bicon. Fee Simple 956 1^45; Aiiston T. Pamphin, Right of Way, 365. 387 1750 : AUsopp V. Patten, Estate for Years 1231 ■ V. Hart, Copyholds Adlin^toa v. Cann, Trusts 1721, r. Cann, Mortgage Adye v. Feuilleteau, Trusts Agard v. King, Estate for Years V. Peterborough, (Bp.) Next Avoidance Ailner's case, Copyholds Aire, Scc~, Nav. Co^ Waters Airley Earldom, Dignities Albany's case. Powers Albermarle (Duchess) v. Bath, (Ld.) Powers AJbermarle (E ) v. Rogers, Advowsons V. Rogers, Trusts Alcock V. Cooke, Franchises V. Sloper, Trusts Alden v. Gregory, Trusts Aldea's case, Ancient Demesne, Aldenburgh v. Peaple, Rent October, 1846. — B 816 1766 2221 1575 1515 127 852 110 619 2019 2042 Altham (Ld v. Anglesea, Earl) Uses 1645 Alton Wood's case. Estate Tail Amand r. Bradboame, Trusts, Ambrose v.Ambrose, Trusts, Amesbury v. Brown, Estate Tail ■ — v. Brown, Mortgage Amhnrst t. Dawling, Adrowsons T. Dawling, Trusts T. Dawling, Mortgage T. Litton, (not Lilton,) Mort- 1016 1930 1764 1008 2223 120 1882 2219 gage Amphlett v. Parke, Land and Money T. Parke, Trusts Ancaster (D.) t. Mayer, Assets 126 Anderson T. Anderson, Trusts V. Dawson, Power - T. Dwyer, Dower -, Ex parte, Trusts - v. Hayward, Copyholds 1582 659 1885 1731 ^38 Anderson's case. Estate Tail 242 ' Anderton t. Cook, Assets 2267 72 1792 49 1757 2000 1210 1«27 903 1010 49 XVJU TABLE OF CASES. Andrew v. Pearce, Powers 9 2094 V. Soutliliouse, Fee Simple, 959 V. Riglcy, Trusts 1799 Andrews v. Blunt, Estates on Condi- tion 2140-7 V. Emmott, Assets 49 V. Emmott, Powers 1994 Angell V. Dawson, Powers 2120 Angier v. Stannard, Trusts 1914 Amiandale, (Lady) Ex parte, Land and Money 78 Annesley v. Simeon, Trusts 1901 Ansley v. Chapman, Fee Simple 959 Antrim (Ld.) v. Buckingham, (D.) Powers 1969 Antrobus v. Smith, Trusts 1806 Appleford's case. Franchises 724 Appleton V. Doiley or Baily, Rent 230 V. Doiley or Baily, Copyholds 776 L'Apostre v. Le Plaistricr, Trusts 1934 Aprice's case. Estate Tail after, &c. 106;i Archdeacon v. Jennor, Waste 2467 Archer's case, Estate Tail 990 , Life Estate 1030 Ards V. Watkins, Rent 210 Argent V. St. Paul's, (Dean, &:c.,) Fran- chises • 710 Arkwright v. Gill, Right to Water 399 Arlct V. Ellis, Common 270. 321 V. Ellis, Copyholds 859 Arniitage v. Metcalf, Assets 45 Armstrong v. Wolsey, Uses 1641 Armstrong v. Peirse, Trusts 1935 Armyn v. Appletoft, Franchises 631 Armytage v. Armytagc, Powers 1997 Arnitt v. Bream, P^statc for Years 1303 Arnold v. Bidgood, Estate for Years 1443 — V. C^hapman, Assets 58 V. Chapman, Land and Money 72 — V. Chapman, Trusts V. Kcmpstead, Dower ^ V. Skeale, Dower Arris v. Stukeley, Offices Arthington v. Coverley, Advowsons V. Coverley, Trusts V. Fawkes, Common V. Fawkes, Copyholds 1794 1199 1161 597 122 1901 sr.i 917 822 Arundel's (E.) case. Copyholds Arundel (E.) v. Grey, Estate for Years 1494 Arundel (Dame) v. Pembroke, Dower 1203 Arundcll v. Philpot, Powers 2076 Ascough's case. Rent 213 Ashburton v. Ashburton, Land and I\Ioucy Ashburton' V. Ashburton, Trusts Ashby V. Freekleton, Right to Pews Ashe V. Royle, Copyholds Ashegcll V. Dennis, Advowsons Ashfield V. Ashfield, Copyholds V. Ashfield, Estate for Years Ashmead v. Ranger, Common ' v. Ranger, Copyholds ■ v. Ranger, Life Estate Ashton V. Ashton, Tithes . v. Hutton, Copyholds Ashton's case, Jointure Asiley V. Tankervillo (E.), Assets 78 1886 496 918 126 884 1410 357 850, 906 1045 134 902 1218 49 Astley V. Tankerville (E.), Mortgage § 2278 Aston v. Aston, Life Estate 1 040 V. Aston, Jointure 1243 V. Smalhnan, Joint-tenancy 2307 Astry V. Ballard, Lands 86 Atcherley v. Vernon, Trusts 1750 Athol's (D.) case. Dignities 619 Atkins V. Atkins, Copyholds 913 V. Hatton, Commons 95 V. Hatton, Cojjyholds 917 V. Hill, Franchises 632 V. Montague, Offices 536 Atkinson v. Baker, Life Estate 1050 V. Featherstone, Estate Tail 986 V. Hutcliinson, Estate Tail 981 V. Pillworth, Estate for Years 1526 Att-Gen. v. Backhouse, Trusts 1893 V. Baliol Coll., Estate for Years 1293 V. Berryman, Powers 1980 — V. Bov»yer, Mortgage 2243 V. Bradyll, Life Estate 1064 V. Brettingiiam, Trusts 1892 V. Briekdalo, Trusts 1891 — V. Brooke, Trusts ] 892 V. Buller, Trusts 1839, 1891 V. Caius Coll., Trusts 1 824 V. Clack, Trusts 1827 — V. Clarendon (E.), Estate for Years 1454 V. Clarendcn (E.), Trusts 1824 V. Coventry, Rent 174, 234 V. Crofts, Mortgage 2268a V. Cross, Trusts 1892 V. Cunning, Trusts 1882 — V. Davy, Franchises 705 v. Day, Franchises 714 V. Day, Estate Tail 1007 V. Day, Trusts 1761 — v. Dimond, Assets 37 V. Dixie, Franchises 726 V. Dixie, Estate for Years 1454 V. Dixie, Trusts, 1894 V. Doughty, Right to Light, &,c. 446, 475 V. Duplessis, Trusts 1768 V. Eardley (Ld.), Tithes 135 V. Foundling IIosp. (Gov.), Franchises 72C V. Foundling Hosp., Waste 1041 V. Foundling Hosp. Trusts 182 V. Fullerton, Commons 95 — V. Gleg, Trusts 1849 V. Gleg, Dower, 1975 V. Gower, Trusts 1934a V. Green, Estate for Years 1420 V. Green, Trusts 1794 V. Griffith, Estate for Years 1420 V. Griffidi, Trusts 1892 V. Haberdasher's Company, or Tanner, Trusts 1923 V. Hall, Trusts 1774 V. Hotham (Ld.), Estate for Years 1420 V. Hunoerford, Estate for Years 1420 TABLE OF CASES. XIX Att-Gen. v. Hun gerford, Trusts §18901 V. Hurst, Assets 58] V. Kerr, Trusts 1892 i V. Landesfield, Trusts 1824 1 V. Locklcy, Dower, 1174 V. Maj'wood, Trusts 1893 V. Meyrick, Mortgage 2243 V. Newark, Trusts 1890 V. Newcombe, Trusts 1901 Nicholl,Riaht to Light, &c. 475 Norwich (May.), Trusts 1929 Parker, Trusts Pearson, Powers Poulden, Trusts Richards, Waters Rochester, Trusts V. Sands, Trusts 1714. 1728. V. Scarisbrook, Trusts V. Scotl, Advowsons Scott, Franchises 1901 2105 17bl 105 1892 1907 1882 120 705 1130 1881 2109 V. Scott, Dower V. Scott, Trusts V. Sliorc, Powers • V. Stamford (JMa}'.), Estate for Years 1454 V. Stephens, Trusts 1827 V. Sutton, Estate Tail 984 V. Tyndall, Assets W V. Vigors, Estate for Years 1415 V. Vincent, Copyholds 915 V. Vivian, Trusts 1895 V. Warren, Estate for Years 1420 V. Weymouth, Assets 57 V. Whorwood, Jointure 1232 V. Wliorwood, Trusts 1824 V. Wilson, Trusts 1777// V. Wycliite, Advowsons 126 Attree v. Scott, Copyholds 785 Atwatcrs v. Birt, Powers 1975(7 Atvvood V. Lamprev, Dower 1211 Aubrey v. Fisher, Waste 2466 V. Middlcton, Powers 2116 Audley v. Audley, Land and Money 73 Auriol V. Mills, Rent 205 Austen or Austin v. Bennet, Copy- holds S06 Austen v. Halsey, Assets 54 V. Halsc}', Trusts 1761 V. Halsey, Mortg-age 2207a V. Nicholas, Waters 108 V. Taylor, Estate Tail 991 V. Taylor, Trusts 1714. 1808. 1817 Austen's case. Ways 102 Aveling v. Knipe, Trusts 1782 Aveling v. Knipe, Joint-tenancy 2307 Avery v. Chesl3'n, Fixtures 23 Axrainster Parish case. Franchises 677 Ayer v. Orme, Estate for Years 1348 Ayliffe v. Murray, Trusts 1926 Aylor V. Chep, Joint-tenancy 2304 Aynsley v. Wordsworth, Rent 220 Ay ray v. Lovelas, Advowsons 122 Ayre's case. Common 351 Ayres V. Willis, Dower 1195.1201 Babington v. Greenwood, Jointuro 1220 Bach V. Meats, Rent § 244 Back V. Stacey, Right to Light, &iC. 463 Backhouse v. Middlcton, Trusts 1719 V. Wells, Estate Tail 988 Backhouse's case. Estate for Years 1500 Bacon v. Bacon, Trusts 1908 V. Bacon, Descent 2393 and Palmer's case. Common 342 V. Thurley, Fee Simple 960 Baddelcy v. Leppingwell, Copyholds 798 V. Leppingwell, Fee Simple 960 Baden v. Pembroke (E.), Laud and IMoncy 63 V. Pembroke (E.), Heir 81 Badger v. Ford, Common 315. 337 Badham v. Mce, Powers 2020 Bagg's case. Franchises 701 Bagot or Baggott v. Bagot, Trusts 1 827. 1890 V, Orr, Waters 108 V. Oughton, Assets 48 V. Oughton, Estate for Years 1371 Bagshawc v. Goward or Gowin, Fran- chises 663 V. Spencer, Uses 1 659 V. Spencer, Trusts 1707. 1815 Bailes v. Wenwan, Estate for Years 1517 Bailey v. Appleyard, Right of Way 362 V. Ekins, Assets 42 Bailis V. Gale, Fee Simple 961 Bainbridge v. Blair, Powers 2105 Bainton v. Ward, Powers 2061 Baker v. Bayley, Life Estate ] 056 V. Brent, Advowsons 126 V. Holzapfcl, Rent 202, 257 V. May, Assets 43 V. Rogers, Next Avoidance 127 Baldwin v. Noakes, Copyholds 816 V. Tudge, Franchises 655 130 1808 90 1551 107 V. Impropriation Bale V. Coleman, Trusts Ball V. Cross, Churches V. Cullimore, Estate at W^ill V. Herbert, Waters •, Right of Way V. Montgomery, Trusts 372 1896 Ballard v. Dyson, Right of Way 372 Bally V. Wells, Estate for Years 1461 Balmain v. Shore, Land and Money 78 Baltinglass's case. Powers 2094 Bamfield v. Wyndham, Assets 49 Banipficld v. Popham, Life Estate 1029 Banbury case. Dignities 602 Banbury's (Ld.) case, Powers 20086 Bank (England) v. Lunn, Trusts 1824 V. Parsons, Trusts 1624 Bank or Banks v. Scott, Land and Money 76 V.Sutton, Estate Tail 1012 , Dower, ] 1 30, 1103 ■, Powers 2011 Bann (not Bann's) River case, Waters 108 Bardon and Witherington's case, Es- tate for Years 1472 Bardswell v. Bardswell, Trusts 1775 XX TABLE OF CASES. Barharn v. Hayman, Tenancy from Year to Year § v.Thanet (E.), Assets Baring v. Nash, Commons Barker v. Boucher, Assets V. Greenwood, Trusta V. Keat, Uses V. London (Bp.), Coparcenary V. Richardson, Right to Light, &,c. V. Smart, Mortgage V. Taylor, Jointure Barlo'.v V. Grant, Trusts V. Rhodes, Right of Way Barnard v. Large, Trusts Barnard's (Ld.) case, Waste . , Life Estate Barnardiston v. Chapman, Tenancy in Common V. Lingood, Estate Tail Barnes v. Corke, Copyholds, • V. Crowe, Powers Barnes v. Mawson, Mines Barnham and Higgins, Copyholds Barrel v. Sabine, Mortgage Barrett v. Glubb, Advowsona Barrington's case, Common Barrington v. Horn, Dower Barrow v. Green, Trusts V. Keen, Right to Pews Barry v. Edgeworth, Fee Simple V. Nugent, Estate for Years V. Usher, Trusts Bartholomew v. May, Assets Bartlett v. Downes, Offices . V. Pickersgill, Trusts Barton v. Briscoe, Trusts V. Horton, Estate for Years Barton's case, or Lea v. Burton, Uses Barwick v. Matthews, Commons Bascawcn v. Herle, Uses Baskervillc v. Baskerville, Trusts Basset v. Basset, Jointure V. Maynard, Common V. Manxcl, Uses Bassett v. Percival, Assets Bastard v. Proby, Trusts Bate V. Amherst, Uses Batcman v. Batcman, Dower ^ — V. Davis, Trusts , Powers V. Phillips, Copyholds V. Ross, Dower Baton's case, Right to Water Bates V. Bates, Dower . V. Clayton, Fee Simple V. Dandy, Estate for Years , Trusts , Morltrajre Bateson v. Green, Common Bath (E.) V. Abncy, Copyholds , Trusts Bath's (Bp.) case. Life Estate , Estate for Years , Estate at Will Bath's (Prior) case. Copyholds Bath and Montague's case, Powers 1569 48 95 42 183:i 1634 2299 453 2207 1265 1887 366 1913 1042 1042 2318 1004 781 1984 96 881 2203 131 305 1186 1768 484 958 1283 1787a 46 571 1782 1752 1508 1696 274 1663 1808 1252 355 1615 48 1816 1690 1175 1951 1983 910 1189 406 1129 962 1432 1719 2280 314 782 1902 1024 1305 1545 841 2001 Bathurst v. Cox, Franchises Batmore v. Graves, Copyholds Batmore v. Graves, Descent Batson v. Lindegreen, Assets Baugh V. Haynes, Estate for Years Baxter v. Doudswell, Tenures , Life Estate § v. Taylor, Right to Water Bayley and Stevens, Descent Baylis v. Dineley, Estate for Years V. Newton, Trusts 650 781 2402 42 1333 749 1059 443 2406 1410 17776 1330 1969 Bealey Bean Bayly or Bayley v. Munday, Estate for Years V. Warburton, Powers Baynham v. Guy's Hosp., Estate for Years 1515 Beable v. Dodd, Trusts 1756 Bcachcroft v. Beachcrofl, Fee Simple 961 Beal or Beale and Langley, Copyholds 843 V, Sheppard, Life Estate 1031 V. Thompson, Rent 202 V. Shaw, Right to Water 401. 440 Bloom, Common 295. 323 v. Halley, Uses 950 Beard v. Nuttall, Jointure 1234. 1258 V. Wcstcott, Powers 2050 Bcarpark v. Hutchinson, Life Estate 1053 Bcauclerk v. Ashburnham, Trusts 1930 V. IMcad, Land and Money 61 Beaudley v. Brook, Right of way 362 , Uses 1610 Beaumont v. Bromley, Customary Estates Beaumont's case, Estate Tail after &c. Beavan v. Delahay, Rent , Estate for Years Beck v. Rcbow, Fixtures Welsh, Mortgage Beckett v. Cordlcy, Mortgage Beckl'ord v. Wade, Trusts Beckman v. Freeman, Trusts Bcckwith's case. Dower , Uses Bedell's case, Uses Bedford v. Abercorn (Marq.), Trusts V. Alcock, Franchises V. British Museum Trust. 2373 1067 241 1474 19 2238 2207a 1729 1725 1185 1612 1633 1819 642. 655 Right to Light Bodlbrd's (E.) case. Estate for Years Uses Reversion Bcdingfield's case. Dower Bedingfield v. Canterbury (Archbp.), Advowsons 479 1329. 1347 1617 2315 1190 126 V. Onslow, Right to Water 433 Beilby, Ex parte, I'rusts Belch V. Harvey, Mortgage Belcher, Ex parte. Chattels v. Renforth, Mortgage Belfield or Soutlicote v. Adams, Copy- holds Belford v. Foord, Estate for Years Bclfour V. Weston, Rent Bell, Ex parte, Dower Bell V. Hyde, Trusts 1750 2270 24 2247 771 1345 202 1174 1826 TABLE OF CASES. XXI Bell V. Pliyn, Land and Money Bellamy v. IJiirrow, OHices V. l>iirro\v, Trusts Bellasis and Bufbricli, Estate for Years — — — V. Cole, Rent V. (^oinpton, Trusts §78 574 17G4 Bigg'on V. Bridge, Rent Hill V. Cureton, Trusts , Powers §194 1779 2114 1884 1518 1!)7 1785 Bcllew V. Laiigden, Common 318 Bclvidcrc (Karl) v. Roclifort, Assets 46 Bcnbow V. Townsend, Trusts 17()l) 1781 Beneson and Strode, Copyliolds 873 Bengourrli V. Walker, Jointure 1247 Benn v. Dixon, Trusts 1885 Bonnet or Bennett v. Aburrow, Powers 1993 V. Colley, Trusts 1729 1881. 1952 V. Davis, Trusts 1749. 1822 V. Reeve, Common 271. 283 Bennicombe v. Packer, Uses 1681 Benson v. Benson, Land and Money 65 , Trusts 1755 . — V. Chester, Common 270 v. Wliitham, Trusts 1772 Bentley v. Ely (Bp.), Franchises 720 Bcrcsford's case. Estate Tail 979 Berkeley's (Ld.) case. Estate Tail 1010 Berkhampstead Free School, Ex parte, Franchises 726 , Estate for Years 1420 Bcrrinian v. Peacock, Copyliolds 852 Bcrriugton v. Brooks, Franchises 651 Berry v. (Jreen, Copyholds 901 v. Heard, (^ipyholds 852 V. Lindlcy, 'I'cnancy from Year to Year 1577 v. L^slier, Land and Money 71 Bertie v. Abinoton, fE.) Estate Tail 100;) V. Bcaumor.t, Rig-ht of Way 37i) V. Falkland, (Lord) Conditions 2154 Bertue v. Stile, Jointure 1250 BerwcU v. Corrant, Assets 42 Best v. Stampford, Trusts 1 742 Beswick v. Cundon, Nuisance 2464 Bcttisworth v. St. Paul's, (Dean, &c.) Estate for Years . 1630 Bettisworlli's case. Lands 87 Bcvant v. Pope, Dovi'er 1173 Beverley v. Beverley, Dower 1193 • v. Canterbury, (Archbishop) Advowsons 122 Beverley's case, Estate for Years 1411 Beversliam's case, Copyholds 8'o4 Bevil's case, Title 237G Bevington v, Parkhurst, Jointure 1258 Bewick v. Whitfield, Timber 26 Biccot v. Ward, Right to Water 427 Bickham v. Crutweil, Assets 49 V. Freeman, Assets 42 Biekncll v. Hood, Estate for Years 1288 V. Page, Assets 49 Blddleeombe v. Kerwell, Common 306 Bidduli)h v. Alhcr, Franchises 729 Bificld's case. Estate Tail 978 Biggc v. Bensley, Estate Tail 881 v. Kynaston, Trusts Billinghurst v. Spearman, Estate for Years 1457 v. Walker, Assets 48 Billingsby v. Hcrcy, Trees, V.Meredith, Dower 1155 V. Morris, Rent 206 V. Nisbet, Powers 2048 V. Pocock, Trusts 1755 V. Pocock, Powers 1959a V. Quilfer, Rent 202 V. Shcvil or Shevril, Rent 239 V. Smith, Dower 1202 V. Stoaey, Rent 231 V. Tempcrlcy, Trusts 1869 V. Tighe, Estate for Years 1527 V. Windsor, Easements, 115. 504 Brownie's case, Copyholds 769 Browning v. Beston, Dower 1203 V. Beston, Estate for Years 1353 V. Beston, Estates upon Condition 2198 V. Dann, Rent 245 BrowMilow v. Hcvvlcy, Rent 169 V. Lambert, Franchises 665 Brudenell v. Broughton, Trusts 1766 • V. Elwes, Trusts 184 V. Elwes, Powers 2047 Brudnell's case, Estate for Years 1514 Bruerton's case, Coi)yholds 772 Brucrton v. Rainsford, Estate for Years 1272. 1480 Bruin's case, Offices 578 Brummel v. Macpherson, Estate for Years V. Prothero, Assets Bryan v. Whistler, Churches v. Whistler, Easements V. Wetherhead, Estate Years V. Winwood, Commons v. Winwood, Title Brydges v. Stevens, Waste V. Brydges, Estate Tail Buck V. Wright, Rent Buckingham's (Duke) case. Trusts Buckland v. Barton, Powers 2036 V. Butterfield, Waste Buckley or Buckly v. Coles, Right of Way 1512 49 91 499, 500 for 1299 95 2383 2469 991 258 177 2062 2465 366 XXIV TABLE O^ CASES. Buckley or Buckly v. Harvey, Estate, at Will § 1548 V. Nightingale, Assets 45 V. Pirk, Rent 207 V, Siinmonds, Uses 1635 V. Taylor, Rent 242 Buckmaster v. Harrop, Heir 80 Buckridge v. Glasse, Trusts 1946 V. Ingram, Fixtures 24 Bucks V. Drury, Jointure 1215 V. Drnry, Estate for Years 1446 V. Drury, Trusts 1759 Buck worth v. Thirkell, Curtesy 1100 Buggins V. Yates, Trusts 1775 Bulkley v. Wilford, Trusts 1768 Bull V. Sibb, Rent 258 V. Vardy, Trusts 1959ry V. Wyatt, Estate at Will 1548 Bullard V. Harrison, Right of Way 374 Bullcn V. Sheen, Common 359 Buller's case. Rent 247 BuUer V. Exeter, (Bp.) Advowsons 122 . V. Exeter, (Bp.) Coparcenary 2361 V. Waterhouse, Powers 2006. 2068/j Bullock V. Finch, Dower 1146 V. Thome, Powers 2024 Bulwer v. Bulwer, Estate for Years 1699 Bunn V. Channen, Common 329 Bunting v. Lcppingwell, Copyholds 838 Butcher V. Kemp, Dower, §1197 Bute (M.) V. Cuiiynghame, Assets 54. 65 V. Grindal, Common 310 Butler's case, Franchises 679 Butler and Baker's case, Rent 226 , Dower 1130 Butler V. Archer, Copyholds 809 V. Archer, Joint-tenancy 2308a V. Bray, Powers 1975a V. Duckmanton, Estate at Suf- ferance 1 600 . V. Duncombe, Bowers 2085 V. Hereford, Franchises 709 Butricke v. Broadhurst, Dower 1200 Butt's case. Rent 172. 179 , Estate for Years 267 Butt V. Jones, Right to Pews 490 Buttery v. Robinson, Annuity 2666 Buxton V. Buxton, Trusts 1870 Byas V. By as. Powers 2011 Byerly v. Winders or Winder, Ciiurchcs 90 V. Winders or Winder, Riglit to Pews 490 Byrcliall v. Bradford, Trusts 1847 Byrd v. Wilford, Franchises 708 Burchet v. Durdant, Uses 1657, 1658 Burden v. Burden, Trusts 1926 Burdet or Burdctt v. Doe, Powers Burden v. Burden, Dower V. Matthewrnan, Franchises Burford v. Lee, Estate for Years 1759. Burgess v. Wheate, Dower V. Wheate, Trusts 1703, , V. Wheate, Esciieat Burgis V. Burgis, Ciiattels Real Burke v. Brown, Trusts Burley's case. Estate Tail Burn V. Holgrove, Powers . V. Phelps, Rent Burnet v. Mann, Powers Burncy v. Macdonald, Trusts Burrel v. Cruchlcj', Powers V. Dodd, Customary Freeholds Burridge v. Bradyll, Dower . V. Phylcox, Trusts V. Row, Trusts V. Taylor, Franchises Burt V. Thomas, Assets Burton v. Brown, Estate for Years V, Hastings, Trusts V. Knowlton, Assets V. Picrpont, Trusts V. Spencer, Mines V. Todd, Dower Pope, Nuisance Western, Right to Water Bury V. Bush V, Bushby v. Dixon, Assets V. Dixon, Title Bushell V. Bushcll, Powers Bustard's case. Dower • , Uses Butcher v. Butcher, Entry, 2002 1190 670 1479 1130 1822 2412 7 1825 983 2034 205. 257 19 69 1825 2049 921 1201 1771 1883 629 42 1297 1810 49 1748 101 1210 2463 437 35 2378 1938a, 2078 1133 1663 2470 Caffrcy v. Darby, Trusts Cage and Paxlin's case, Life Estate C. C. Coll. case, Francliises Calland v. Trowc, Advowsons Callard v Callard, Use's Calfhrop's case, Uses Calvin's case. Dignities , Curtesy, •, Estate for Years Camden v. Anderson, Trusts V. Morion, Rent Candler v. Smith, Estate Tail Campbell's ease, Rent Campbell v. Home, Trusts V. Leach, Rent V. Leach, Estate for Years V. Sandys, Life Estate V. Walker, Trusts V.Wilson, Right of Way V. Wilson, Franchises Canham v. Fisk, Riglit of Way V. Fisk, Right to Water Canncl v. Buckle, Powers Canning v. Hicks, Mortgage Canterbury's (Archbp.) case. Tithes (Sheriff) case. Franchises Cantrell v. Church, Right of Way Capel's case. Rent , Tenures , Estate for Years Capel V. Buzzard, Rent V. Girdler, Trusts Card V. Hope, Offices Carden v. Tuck, Land Cardigan (E.) v. Armitage, Mines Carell v. Cuddington, Tenures V. Montague, Rent V. Montague. Estate for Years Carcw V. Carew, Jointure Carlisle (Bp.) v. Blain, Tithes 1883 1044 706 122 1614 1613 602 1094 1449 1784 203 980 215 1914 175 1378 1051 1870 380 691 391 416 1973 11 140 701 396 173 735 1494 243 1742 574 87 59 744 175 1376 1252 134 TABLE OF CASES. XXV Carlisle (May.) v. Blamire, Right to Water § 435 . (May.) V. Blamire, Franchises 700 . (E.) V. Armstrong, Estate for Years 1399 Carlton v. Hiitton, Right to Fews, &c. Carpenter v. Carpenter, Heir 82 V. Carpenter, Jointure 1230. 12.50 Chandler v. Thompson, Right to Light, &iC. Chandos (D.) v. Brownlow, Estate for Years V. Talbot, Timber 486 Chandos' case or R. v. Cavendish, V. Collins, Estate at Will Carpenters' (The) case. Trespass 15.56 2459 1902 1632 323 Carr v. Ellison, Trusts V. Erroll, (Ld.) tJses 1667 CarriU v. Park or Pack, Common Carrington v. Taylor, Waters Carter v. Barnardiston, Fee Simple V. Barnardiston, Life Estate V. Barnardiston, Powers V. Carter, Rent ■ V. Carter, Powers — — V. Claypole, Estate for Years V. Murcot, Waters ■ V. Mureot, Franchises V. Ringstead, Uses Carteret (Ld.) v. Carteret, Trusts , V. Pascal, Estate for Years 14.32 Caruthcrs v. Caruthers, Jointure 1224. 1228 Franchises Channon v. Patch, Timher Chaplin v. Chaplin, Rent , Estate Tail , Dower , Mortgage V. Horner, Land and Money 112 Chapman v. Blissett, Trusts 963 - - ~ 1030 2063 196 2007 1337 108 629 1666 185 1717 698 12.53 979 477 961 436 896 42 2275 Carwardine v. Carwardine, Trusts Cary v. Cary, Trusts Casberd v. Ward, Mortgage Casborne v. Inglis, Trusts V. Searfe, Curtesy V. Searfe, Trusts V. Searfe, Mortgage Castle V. Dod, Curtesy V. Dod, Uses Cothay v. Sydenham, Trusts Cave V. Cave, Fixtures V. Holford, Trusts _ Cawdrey's case. Franchises Cecil V. Salisbury, (E.) Jointure Chadock v. Cowley, Estates Tail Chalk V. Wyatt, Riglit to Light, &c. Challenger v. Shephard, Fee Simple Challenor v. Thomas, Right to Water V. Marshall, Copyholds Challis V. Casborn, Assets V. Casborn, Mortsifage Chalmer or Chalmers v. Bradley, Trusts 112'J. 1847. . V. Stovil or Storil, Dower Cliam and Dover's case. Jointure Chamberlain v. Agar, Trusts Chamberlain's case, Estate for Years Chamberlaine v. Chamberlaine, Trusts and Ewer, Life Estate Chamberlayne v. Dummer, Life Estate 1040 v. Ewer, Estate for v. Bluck, Estate for Years v. Brown, Estate Tail v. Chapman, Teimres , Copj'holds V. Flexman, Mills , Copyholds V. G ibson, Copyholds V. Sharpe, Customary Es- tates ■ V. Southwicke, Rent V. Spencer, Commons V. Tanner, Trusts , Dower Mortgage Chapman's case, Estate Tail Charles v. Andrews, Assets , Dower , Jointure 1706 1771 2208 1837 1080 1732 Charleton v. Charleton, Life Estate 2211 jCharnoeh v. Worsley, Curtesy 1103|Chatfield v. Ruston, Tithes 1643iChave v. Calmel, Tithes 1862^Chedington's case. Estate for Years 17 Cheedle or Cheedley v. Mellor, Com- §455 1415 26 677 26 179 1004 1130 2223 61 1828 1282 984 751 91 93 770 918 2367 257 95 1761 1195 2207a 979 59 1195 1218 1040 1114 134 134 1478 mon Clieesman v. Hardham, Common Cheetham v. Hampson, Common , Rio-ht to Water V. Leeds (not Leed), Rent I Chenie's case, Uses Cherrington v. Abney, Right to Light, &c. Chester v. Chester, Descent v. Wilson, Joint-tenancy Chesterfield v. Janson, Trusts Chetham v. Williamson, Mines I Chetwood v. Crew, Franchises 1197 i Chichester v. Bickerstaff, Land and 1224 1768 1494 1914 1768 1049 Years Chambers v. Chambers, Trusts V. Plarvest, Assets v. Minchin, Trusts Champcrnon's case. Uses Champion v. Rigby, Trusts Chandler v. Melland, Common 1483 1811 42 1848 1670 Money V. Harvi'ood, Franchises V. Lethbridge, Ways V. Oxenden, Fee Simple Child and Bailey, Estate Tail . Estate for Years V. Wright, Fee Simple Chitty V. Parker, Land and Money Cholmondeley (M.) v. Clinton, Trusts Mortgage 280 271 280 441 203 1663 455 2408 2315 1953 99 631 62 723 102 958 998 1478 958 72 1731 2211 v. Mayrick, Powers 2008 Chomley's case. Rent 107 Chomley v. Humble, Fee Simple 965 1955 Christian v. Corrcn, Copyholds 918 272. 276 [Christy v. Tancred, Rent 257 XXVI TABLE OF CASES. Chudlcigli's case, Copyholds (j 746 822 , Uses ] 605. 1G45. 1677 , Trusts , Powers , Remainders Church V. Cudmore, Tenures V. Wyatt, Customary Estates Churchill v. Grove, Mortgage V. Small, Life Estate Churchman v. Harvey, Powers Chute's case. Offices Churchwarden's (The) case, Estate for Years Clarendon v. Plornsby, Dower Clark or Clarke v. Calvert, Rent V. Cogg, Right of Way V. Crownshaw, Fixtures v. Gaskarth v. Jennings, Tithes V. Pennyiathcr, Copy- Clutterbuck v. Smith, Trusts § 17.26 Clyatt v. Eattcnson, Life Estate 1037 1821 Cob or Cobb v. Bctterson, Copyholds 838 20941 V. Sclby, Right of Way 372 2332 1 V. Stokes, Rent 255 534 V. Stokes, Tenancy from 23.35 1 Year to Year 2260 Cobham and Brown's case. Franchises 1036 Coble v. Allen, Right of Way 2013 Cock v. Cooper, Estate Tail 534' V. Stubbs, Franchises j Cocker v. Cowper, Easements 1451 ' V. Quayle, Trusts 1150 Cockrel v, Cholmeley, Trusts 2,36 Cocksedge v. Fanshaw, Prescription 373 Codrinsrton v. Foley, Powers holds Clarkson v. Clarkson v Clarkson v Woodhouse, Common Woodhouse, Copyholds Woodhouse, Prescription Clavcring v. Clavering, Mines Clavcring v. Clavcring, Powers Clay V. Tliackerah or Thackery, Right of Way 24 Coke's case. Tithes 236 Coke's case, Trusts 135 Colburn and ^Monroe's case, Estate for I Years 821 Cole V. Forth, Waste V. Foxraan, Common V. Green, Waste V. Levingston, Remainders 100' V. Moore, Trusts 2066' V. Rawlinson, Fee Simple j V. Robins, Estate for Years 381 ! V. Wade, Powers 1570 631 365 986 646 519 1951 1953 2420 2086 135 1727 320: 8.59 1 2419: 1737 V. Wills, Assets 42, 43 V. Wall, Copyholds Colebrooke v. Elliot, Franchises Clayton v. Aslidown, Estate for Years 1291 C . V. Blakcy, Estate for Years 1276 Colegrovc v. Dias Santos, Fixtures Burtenshaw, Estate for | v. IManby, Trusts 1290 Coleman or Cohuan v. Portman, Copy V. uuriensnaw, Estate Years V. Cookes, Copyholds Clayton v. Gregson, Estate for Years Clecott V. Denys, Offices Cleer v. Peacock, Advowsons Clements v. Lambert, Common Clements v. Scudamore, Tenures Clements v. Scudamore, Descent Clencii v. Cudmore, Copyholds • v. Withcrlcy or Wetiicrley, IMortgagc Clenncl v. Read, Rent V. Ticwthwaite (note Lcutli- 1484 2165 271. 333 2465 2339 1822 961 1414 1980 905 637 19.24 1881 916 1279 567 131 347 holds Sorrel, Trusts Winch, Assets ; Coles V. Trecothick, Trusts Collet v. Do Golls, Trusts 794 CoUcy v. Stretton, Estate for Years 2407 CoUingwcod and Pace, Escheat 817 Collins or CoUings v. Barrow, Rent I V. Harding, Rent 202. 210 2202' V. Harding, ("opyholds 905 864 1806 39 1943 1718 1288 2414 206 V. Wakeinan, Trusts waitc), Trusts Clere v. 13rooke, Descent Sir E. Clerc's case. Uses Sir E. Clere's case, Powers Clerk or Clcrke v. Day, Estate Tail Clerk or Clerke v, Wentworth, Copy- holds Clcrkson v. Bowyer, Mortgage Clifford V. Burlington, Estate Tail V. Burlington, Jointure V. Wicks, Churclies V. Wicks, liigiit to Pew V. Baring, Dignities Clifton V. Burt, Assets V. Chancellor, Franchises V. Lombe, Trusts V. Molyneux, Copyholds Clinan v. Cooke, Estate for Years Clough V. Bond, Trusts 1848, V. Lambert, Trusts Cloudslcy V. Pclham, Trusts Clun's case, Rent 13, 196 Collinson v. Patrick, Trusts 1797 Colis v. Blackburn, Trusts 2105 Colston v. Gardner, Powers 161 6 'Colt V.Coventry (Bp.), Advowsons 2025;Colton v. Iloskins, Powers 988 v. Smith, Ways v. Smith, Waters 888, I Combe's case. Copyholds 1 1 Combe's case. Estate for Years 1 007 Comerford's case. Estate for Years 1238 Commin v. Kinsmill, Copyholds 90. Compere v. Hicks, Jointure 481 'Compton v. Bearcroft, Dower 61 61 v. Collinson, Customary Es- 55 1 tales 682 Coney's case. Common 1771 Coney v. Bond, Trusts 828;Connelly v. Baxter, Rent 1291 Conner v. Browne, Aspets , 1 908 Conolly v. Vernon, Copyholds 1932 Constable's case. Waters 1771 . Franchises 193, 194 Conway v Conway, Powers 1788 1801 1889 2066 123 1973 102 109 770 1361 1361 916 1258 1121 2360 318 1883 206 39 908 105 657 2089 TABLE OF CASES. XXVil Coo V. Cawtliorn, Common § 318 Cook or Cooke v. Arnham, Powers 2011 V. Booth, Estate for Years 1525 V. Clayworth, Estate for Years 1413 V, Cook, Joint-Ten- ancy 2302 V. Crawford, Trusts 1908 , Powers 1980 V. Fountain, Trusts 17G3 V. Green, Ways 102 V. Harris, Rent 205 V. Hutcliinson, Trusts 1777a V. Soltau (not Soltan,) 1835 17 78 24 Costigcn V. Hastier, Mortgage Cotlier V. Merrick, Rent , Estate for Years Cotteene v. Missing, Trusts Cotter V. Layer, Jointure I , Powers Cotterell v. Gritiitiis, Right to Light, §2215 162 1321 1806 1237 2034 &.C. - V. Purchase, Trusts , Mortgage 463 1731. 1955 2202a 1781 Trusts Cooke's case. Fixtures Coolvson V. Coolison, Land and Money Combe v. Beaumont, Fixtures Cooper or Carrier v. Franklin, Estate Tail 994 ,Uses, 1608. 1623 V. Barber, Riglit to Water 419 • V. Blandy, Estate for Years 1425 V. Marshal!, Common 323 Cooper's Company, (The Newcastle,) Franchises 698 Coore V. Clare, Copyholds 876 Coot V. Besby, Dower 1189 Court V. Jackson, Trusts 1785 Cope V. Cope, Assets 46 , iMortgage 2276 Copeman v. Gallant, Trusts 1934 Coppin V. Coppin, Assets 54 V, Fornyhough, Trusts 1803 , Mortgage 2257'/ Corbet's case. Common 293 , Fee Simple 968 , Uses 1640 , Estates on Condition 2134 , Remainder 2327 Corbet or Corbett v. Barker, Mortgage 2270 V. Corbet, Jointure 1216. 1223 ^_ V. Pesthall, Copyholds 848. 914 V. Segrave, Life Estate 1043 Corbin v. Corbin, Uses 1633 Cordal's case. Estate Tail after &;c. 1067 Corder v. Morgan, Mortgage 2202 Cordwell v. Mackrell, Trusts 1801. 1811 Cornbury (Ld.) v. iMiddleton, Trusts 1710. 1719 Cornish v. Mev/, Life Estate 1037 Cornwallis's (Ld.) case. Copyholds 873 Corsellis v. Corsellis, Dower, 1203 Cort V. Birkbeck, IMills 93 V. St. David's (Bp.,) Advowsons 123 Corwen's case, Heir-looms 16 , Trusts, 1887 Corwen v. Pym, Right to Pews 495 Cory V. Gertclien, Trusts 18S7 Coryton v. Lythebye, Mills 93 , Copyholds 770 Cosh V. Loveless, Copyholds 833 Costard and WinorfielJ's case, or Cos. tard V. Winfield, Common 285. 343 Costerd v. Wyndett, Estate for Years 1340 Costigen v. Hastier, Estate for Years 1294 Cottington v. Fletclier, Trusts Cotton v. Cotton, Jointure 1257 Cotton's Case, Estate Tail 975 Couch V. Stratton, Dower 1193 Comiden v. Gierke, Trusts 1776 Courtenay v. Collet, Right to Water 433 Courtiiope v. Hayman, Trusts 1719 Court and Lambert, Dower 1149 Coutts V. Gorham, Riglit to Light, &c. 468 Coventry (Lady) v. Coventry (Ld.,) Assets 46 , Estate Tail 1007 , Jointure 1230 V. Hall, Trusts 1948 Cowlam V. Slack, C'ommons 277 Cowling V. Higginson, Right of Way 376 Cowpcr V. Clerk, Copyholds 917 V. Cowper, Trusts 1732 , Descent 2396 Cox's Creditors, Assets 41 Cox or Coxe v. Barnsley or Barnsly, Ancient Demesne 928. 938 -. , Statute Merchant, &.c. 2288 V. Chambcrlane, Powers 2063 V. Day, Rent 1756 V. Day, Estate for Years 1377 V. Day, Powers 1981 V. Ilightbrd, Copj-holds 770 V. Ly lie. Trusts 1757 V. Matthews, Right to Light, &c. Coxhead's case. Estate Tail Crabb v. Bales or Bevis, Copyholds V. Crabb, Trusts Crabtrcc v. Bramble, Dower , Trusts Crackclt v. Bethune, Trusts Cramporn v. Freshwater, Copyholds , Estate for years Crane or Craine v. Drake, Mortgage . V. Holland, Offices Cranmer's case. Remainders Crawford v. Powal, OfHees Crawley v. Kingsmill, Copyholds V. Crawley, Trusts Crawley's case. Life Estate ,Use3 1625. Crawshay v. Maule, r^and and Money Cray v. VViilis, Jointure , Joint-Tenancy Creach v. Wilmot, Commons Crewe v. Dickens, Common I , Trusts Crichmere v. Paterson, Estates on 1 Condition ^Crickett v. Dolby, Trusts 456 1010 792 1769 1174 17.59 1923 905 1399 2219 560 2337 591 770 1716 1032 1693 78 1216 2307 95 349 1842 2145 1889 XXVlll TABLE OF CASES. Cripps V. Gee, Trusts § 1781 Crisp V. Churchill, Rent, 258 Crisp's ease. Next Avoidance 127 Crispe v. Bellwood, Ways 102 V. Price, Estate for Years 12^9 Crocker and Kelsej, Estate Tail, after &c. , Estate for Years Croft V. Adam, Powers V. Powell, Advowsons Crofiton V. Ormsby, Trusts Cromer v. Burnett, Copyholds Crompton v. North, Trusts Cromwel's case, Rent ' -, Estates on Condition Cromwell (Ld.) v. Andrews 1067 1328 1959a 120 1798 841, 17921 167' 2141' 196 Crompe v. Barrow, Powers 2047 Crooke V. Brooking-, Trusts 1764 Crop V. Norton, Trusts 1783 Crosby v. Wadsworth, Interest in Land 83 , Crosier v. Tomlinson, Rent, 239 Cross V. Addenbroke, Land and Money 65 V. Faustenditch, Powers 2068/» — — V. Hudson, Powers 2025 , V. Lewis, Rigfht to Light, &c. 450 V. Norton, Trusts 1764; V. Salter, Riglit to Pews 4961 Crossling- v. Crossling', Powers 1959 j Crouch V. Foyer, Titlies « 140. V. Stratton, Jointure 1229 1 Curtis V. Daniel, Mines V. Daniel, Common V. Daniel, Copyholds V. Mason, Trusts V. Wheeler, Rent Curwcn v. Salkeld, Franchises Curzon v. Lomax, Manors Cusack V. Cusack, Trusts Cutler V. Coxcter, Assets V. Creswick, Franchises Cutterbulk v. Smith, Assets Cutting V. Derby, Rent. Dacre v. Nixon, Franchises V. Roper, Fee Simple Dagley v. Tolferry, Trusts Daintry v. Daintrj', Estate Tail Dakin's case, Franchises Dakins v. Berisford, Trusts Dalben v. Pullen, Powers Dalliy V. Hirst, Estate for Years Dale's case. Life Estate Dalrymple v. Dn]r}'mple, Dower Dalslon v. Reeve, Estate for Years Daly V. Lynch, Jointrire Danby v. Conyer, Uses V. Harris, Fixtures Crowther or Crouther v. Oldfield, Common 274. 314 , Copyholds 860. 898 Croydcn Hosp. Wardens) v. Farley, Franchises Crozier v. Crozicr, Powers Crump V. Norwood, Curtesy Cruse V. Barley, Land and Money Crusoe v. Bugby, Estate for Years 1.388. 1508 — . E tates on Condi- 699 1995 1101 79 2189 1771 tion Cruwys v. Colman, Trusts Cudliss or Cudlip v.Rundall, Estate at Will ' 1545 Cudmore or Edmore v. Raven, Copy- holds 770 Cullen V. Rich, Mines 98. 101 Cullen V. Tulfncl, Fixtures 22 Culley V. Doe, Title 2381 Culpepper v. Aston, Trusts 1787'? Cumberford's case. Estate for Years 1370 Cumberland's (Countess) case, Tim- ber 26 Cumberland's case. Copyholds 852 Cunliffo V. Cunliffe, Trusts 1774 Cunningham v. Moody, Land and Money Moody, Curtesy Moody, Powers Moody, Customary Estates Moody, Descent Curie's case, Offices Curling v. Mills, Estate for Years Curtis and Cottel's case, Copyholds ■ V. Curtis, Dower 63 1106 2063 2369 2.395 1541 1284 866 1205 ^98 323 858 1918 223 680 88 1809 45 646. 655 42 255 642 961 1887 980 639 1750 1990 1475 1020 1121 1461 1228 1627 24 Danby 's case. Dower 1185 Dancer v. Evett, Copyholds 900 Dand v. Kingseote, Right of Way 371 Dane v. Kirkwall, Estate for Years 1447 Daniel or Daniels v. Adams, Dower 1186 V. Ardern, Common 351 V. Davidson, Trusts 1798 V. Davidson, Mortgage 2257a Daniel v. Hanslip, Common 329 V. NortI), Hight of Way 380 V. North, Right to Light 453 V. Ski|)worth, Mortgage 2283 V. Uplcy, Powers 1969 V. Waddington, Estate for Years ' 1404. 1516 Dann or Danne v. Annas, Powers 1982 V. Spurrier, Estate for Years 1308 Danscy v. Griffiths, Estate Tail 981 Darby v. Darby, Trusts 1750 Darcy (Ld.) v. Askwith, Mines 100 V. Lee, Curtesy 1091 V. Blake, Dower 1157, 1207 Darcy's case, Franchises 731 , Waste 2468 Darke v. Martin, Trusts 1878 Darlington (E.) or Cavan (Lady) v. Pultency, Estate Tail 1012 : — , Powers 1963 Darnton v. Pigman, Rent 198 Dartmouth (Lady) v. Roberts, Tithes 135 Dartnal v. Morgan, Rent 257 Daubeny v. Cockburn, Powers 1996, 2055 Davenport v. Aldis, Remainders 2340 V. Bromley, Commons 95 Davcrs v. Folkes, Election 77 V. Gibbs, Lands 86 Davidson v. Foley, Trusts 1743 Davie v. Bcardsham, Trusts 1760 Davie's case, Franchises 674 TABLE OF CASES. XXIX Davies or Davis v. Barnett, Mortgage § 2231 . V. Cliurchinan, Assets 45 V. Eyton, Estate for Years 1471. 1511 V. Fawkener, Estate i for Years 1391 . • V. Gardiner, Assets 46 V. Gyde, Rent 196 V. Oliver, Estate for Years 1529 V. Povvcl, Heir-looms 29 . , Woods and Trees 96 , Rent 235 V. Speed, Uses 1642.1677. 1689,1690 V, Stephens, Riglit of Way 380 V. Symonds, Estate for Years 1297 V. Thornycroft, Trusts 1755 V. Topp, Assets 50 1 V. Weld, Trusts 1913 V. Witts, Right to Pews 484 Davis's case, Life Estate 1032 Davison V. Gill. Ways 102 V. Stanley, Estate for Years 1497 Davy V. Burnsall, Fee Simple 951 V. Hooper, Trusts 1804 V. Matthews, Reversion 2349 - Pepys, Assets 45 Dawes v. Huddleston, Waters 108 Dawson v. Dell, Dower 1194 V. Clark, Trusts 1787a V. Murray, Trusts 1943 V. Norfolk (D.), Right of Way 380. 495 Day V. Bedingficld, Right to Pews 49 . V. Bisbitch, Fixtures 24 . V. Spooner, Common 280 V. Trig, Lands, 86 Dayrell v. Hoare, Powers 1996 Deacon v. Smith, Jointure 1232 Dean v. Allaley, Fixtures 22 V. Clayton, Common 291. 320 Dearie v. Hall, Trusts 1883 De BeauYoir v. Welch, Right of Way 390 Decharms v. Horwood, Coparcenary 2296 De Chirton's case, Trusts 1727 Deehurst (Ld.) v. St. Alban's (D.), Trusts 1814 Deeth v. Hals, Land and Money 77 Dcg v. Eeg, Trusts 1765 , Powers 2075 De Grey v. Richardson, Curtesy 1080 Deloraine V. Brown, Trusts 1730 V. Smith, Trusts 1955 Den V. Hopkinson, Rent 193 Dench v. Bampton, Common 351 ^ v. Bampton, Copyholds 903 Denliam v. Stephenson, Francluses 632 Denn or Denne v. Barnard, Title 2382 — — v, Cartwright, Estate for Years • 1277 Denn or Denne v. Fearnside, Fee Simple § 951 __ , Estate 1362 974 1970 for Years, ■ V. Hobson, Estate Tail • v. Judge, Powers , Joint- tenancy • V. Mellor, Fee Simple — V. Roake, Powers Dennis's case. Jointure Denny v. Leman, Copyholds Dent v. Bennett, Trusts Denton v. Davies, Trusts v. Denton, Trusts 2313 959 1994 1218 789 193 1767. 1785 1856 Derby Canal Company v. Wilmot, Franchises , Estate for Years Derby (E.) v, Taylor, Estate for Years Dcthick V. Bradbunie, Rent v. Caravan, Assets Devall V. Dickens, Powers Deverish v. Baines, Trusts Devcse v. Pontet, Jointure Devey v. Pace, Trusts Devon (D.) v. Atkins, Assets v. Cavendish (Lady), Powers Devon's (E.) case. Dignities Devonsliire (E.) v. Gibbons, Waters Dewclas or Dowglass v. Kendal Com 705 1418 1388 182 42 2059 1769 1247 1827 36 2047 610 113 mon 295. 325 Dicksey and Spencer's case, Estate for Years Dickson's case. Franchises Digby V. Langworth, Trusts V. Legard, Land and Money , Trusts V. Ex parte. Assets Digge's case, Powers Dighten v. Greenvil, Estate for Years V. Tomlinson, Powers Dike and Dunstin's case, Right of 'Way Dikes, Ex parte. Estate for Years Dillon V. Coppin, Trusts Dillon V. Dillon, Powers V. Fraine, Copyholds •, Uses Dimes v. Scott, Trusts Dimmock's or Dimock's case. Estate for Years , Uses 1500 672 1792 72 1792 47 1964 1480 1964 395 1412 1806 2407 822 1608 1885 1346 1696 Dixon V. Dawson, Land and Money 69, 72 v. Harrison, Dower v. James, Common ■ v. Kershaw, Advowsons • v. Olmius, Trusts v. Robinson, Franchises ■ V. Saville, Dower V. Smith, Rent 1172 350 120. 129 1751 680 1130.1173 200 Dobbins v. Bowman, Powers 2059 Docker v. Somes, Trusts 1903 Dod or Dodd v. Holme, Easements 501 v. Monger or Morgan, Rent 246 V. Saxby, Rent 200 XXX TABLE OF CASES. Dodson V. Hay, Curtesy Poe V. Alexander, Rent — V. Appliii, Estate Tail — V. Archer, Estate for Years Tenancy from Year § 1106 251 986 1382 to 1587 1282 2361 Doe V. D'Anvers, Remainders — V. David, Estate ibr Years — V. Davidson, Common — V. Davies, Commons Estate for Years Year — V. Ashburner, Estate for Years — V. Askew, Customary Estates — V. Ballen, Tenancy from Year to Year 1594 — V. B:irtliop, Trusts 1832 — V. Baytup, Estate for Years 1425 — V. Beard, Estate at Will 1547 — V. Bell, Estate for Years 1276 , Tenancy from Year to Year 1556 — V. Benson, Rent 193 , Estate for Years 1279 , Tenancy from Year to Year 1578 176 1508 1629 1829 2317 — V. Bcttison, Rent — V. Bevan, Estate for Years 1455. — V. Biggs, Uses , Trusts — V. Bird, Tenancy in Common — V. Bluck, Tenancy from Year to Year 1570 — V. Bond, Estate for Years 1506 — V. Boroughs, Powers 2096 — V. Bradbury, Tenancy from Year to Year 1571 — V. Brightwcn, Customary Estates 2368 — V. Britain, Powers 2020 — V. Brooke, Tenancy from Year to Year 1578 — V. Buit, Estate for Years 1299 — v. Butcher, Estate for Years 1383 — V. Butler, Tenancy from Year to Year 1582 — V. Calvert, Tenancy from Year to Year 1589 — V. Carter, Estate for Years 1455. 1510 — V. Cavan (Lady,) Estate for Years 1378 — V. Chaplain, Tenancy from Year to Year 1589 — V. Cliaplin, Joint-Tenancy 2308't — V. Clare, Estate for Years 1287 — V. Clark or Clarke, Estate for Years 1419. 14.)5 , Estate at Sufferance . 1599 § 2324 1511 314. 340 95 1511 2363 1519 1308 . . .. 2301 DobcU, Tenancy from Year to Year 1578 Donovan, Tenancy from Year to Year 1579 Dorvill, Powers 2063 Remainders 2339 — V. Davies, Title V. Dickson, Estate for Years — V. Dixon, Estate for Years , Coparcenary — V. Dunbar, Tenancy from Year to Year 1593 — V. Durnford, Tenancy from Year to Year 1585 — V. Dyson, Rent 251 — V. Edlin, Trusts 1631 — V. Edmonds, Title, 2383 V. Elliot, Tenancy in Common 2317 — V. Ewart, Trusts 1832 — V. Fairclough, Tenancy from Year to Year 1590 — V. Fenn, Estate for Years 1 404 — V. Fidlcr, Estate for Years 1283 — V. Field, Trusts 1707. 1829. 1831 — V. Fillis, Tenancy from Year to Year 1590 — V. Fletcher, Churches . 90 — V. Fomiercau, Remainders, 2334 — V. Forstcr, Tenancy from Year to Year 1582 — V. Frith, Title 2383 — V. Frowd, Estate for Years 1500 Tenancy from Year to 1572 1297 1511 177 ■ , Customary Estates — V. Cockcll, Estate" for Years — V. Collins, Lands , Houses 2356 1419 87 89 988 Year — V. Galloway, Estate for Years — V. Galliers, Estate for Years - V. Giffard or Gilford, Rent . , Estate for Years Pow crs 1379 2097 2096 — V. Collis, Estate Tail — V. Constable, Tenancy from Year to Year 1502 — V. Cooper, Estate Tail 983 _ V. Creed, Rent 176 , Estate for Years 1379 — , Tenancy from Year to Year 1573 — V. Crick, Tenancy from Year to Year 1585 — V. Culliford, Tenancy from Year to Year 1578 — V. D'Anvers, Customary Freeholds 921 V. V. V. • V. ■ V. • V. — V. Gilbert, Powers — V. Goldwin, Tenancy from Year to Year 1578 Gonsill, Title ^ 2383 Green, Tenancy from Year to Year 1577 Greciil'.ill, Statute Merchant, &c. 2288 Gregory, Title 2383 Groves, Estate for Years 1283 Grubb, Estate for Years 1500 , Tenancy from Year to Year 1572 — V. Gurncll, Dower 1 149 _ V. Hare, Rent 196 — V. Harris, Tenancy from Year to Year 1582 — V. Harvey, Estate for Years 1361. 1366 — V. Hazell, Tenancy from Year to Year 1580 — V. Heneage, Uses 1667 _ V. Hilder, Right of Way 382 — v. Haley, Estate for Years 1419 TABLE OF CASES. XXXI Doe V. Howard, Tenancy from Year to Year § 1581 — V. Hajrlics, Tenancy from Year to Year 1588 — V. Hnline, Tenancy from Year to Year 1588 — V. Humplirey, Tenancy from Year to Year 1595 — V. Ilutton, Assets 30. 35 — v. Injrlis, Tenancy from Year to Year 158G — V. Jackson, Customary Freehold 921 •, Tenancy from Year to 1586 2383 134 2004 154 — V. — V. V. V. V. V. V. V. V. V. - V. Year Jauncey, Title Jefferson, Tithes Jesson, Powers Johnson, Rent Jolmstone, Tenancy from Year to Year Jones, Dower , Estate at Will , Trusts, , Descent Keen, Title Kemp, Ways Kightley, Tenancy from Year to Year Knight, Trusts Lambley, Tenancy from Year to Year Laning, Estate Tail Life Estate — V. Lawder, Tenancy from Year to Year Lawrence, Estate for Years Lea, Estate for Years , Tenancy from Year to Year Liglitfoot, Mortgage Lloyd, Rent Lucan, (E.) Lands Lucas, Tenancy from Year to Year Luxton, Life Estate Lyde, Estate for Years Marchetto, Estate for Years Martin, Lands ■-, Life Estate 1584 1169 1547 1934 2393 2377 102 1578 1932 1583 991 1031 1571 1502 1279 1580 2229 175 86 V. Masters, Rent V. Meyler or Meylor, Rent , Estate for Years V. ]\Iilbourne, Powers r. Mihvard, Tenancy from Year to Year V. Mitchell, Rent V. Mizem, Tenancy from Year to Year ■ V. M'Kaeg, Estate at Will V. Moore, Tenancy from Year to Year Remainders 1593 1055 1479 1506 87 1055 251 177. 214 ■ V. I\lulliner, Commons V. Murrell, Commons V. Nicholls, Trusts V. Norton, Lands Doe V. Oxcnham, Rent , Title — V. Palmer, Tenancy from Year to Year — V. Parker, Estate for Years , Tenancy from Year to Year — V. Pasquali, Estate for Years — V. Parratt, Mortgage — V. Pcarsey, Commons — V. Perryn, Estate Tail , Remainders — V. Pitman, Estate for Years Ways — V. Polgreen, Estate for Years — V. Porter, Chattels Real , Tenancy from Year to Year — V. Powell, Estate for Years — V. Price, Estate at Will — V. Pritchard, Estate for Years — V. Posser, Title — V. Pullen, Tenancy from Year to Year — V. Quigley, Tenancy from Year to Year -, Estate at Sufferance — V. Ramsbottom, Estate for Years — v. Raffan, Tenancy from Year to Year — V. Read, Tenancy from Year to Year — V. Reason, Life Estate — V. Reed, Right of Way — V. Rendle, Estate for Years — V. Rivers, Curtesy — V. Robinson, Life Estate — V. Rock, Tenancy from Year to Year — V. Roe, Ancient Demesne , Tenancy from Year to Year — V. Rogers, Rent — V. Samuel, Tenancy from Year to Year — V. Sandham, Rent , Estate for Years H38 2383 1595 1500 1572 1500 11 95 982 2333 1500 102 1430 7 1568 1428 1547 1416 2380 15G6 1571 1599 1426 1580 1590 1030 380 1372 1079.1100 1056 1566 926 ?ayc 1709, 1373 1991 1584' 228: 1590 1547 15G9 2335 95 94 1833 67 Tenancy from Year to Year — V. Scott, Title — V. Scudamore, Curtesy , Estates on Condi- tion — V. Scaton, Estate for Years — V. Sliort, Mortgage — V. Simpson, Trusts — V. Skirrow, Estate for Years — V. Smitli, Estate for Years 1566 176 1583 202 1378 1571 2380 1101 2152 1427 2228 1832 1427 1455. 1511 , Tenancy from Year to Year 15C6. 1587 — V. Snowden, Tenancy from Year to Year 1581 — V. Sjnller, Tenancy from Year to Year 1591 — V. Stanion, Tenancy from Year to Year 1572 XXXll TABLE OF CASES. Doe V. Staple, Trusts § 1836. — V. Steel, Tenancy from Year to Year — V. Stennett, Estate at Will -, Tenancy from Year — V, to Year Stratton, Tenancy from Year Year Street, Tenancy from Year to Year Sturges, Estate for Years Summerset, Tenancy from Year to Year Sybourne or Syburn, Estate for Years , Trusts Terry, Estate for Years Thomas, Advowsons Tliompson, Estate at Will , Tenancy from Year to Year Thorlcy, Powers 1984. Tomkinson, Powers 198L), Turner, Estate at Will Vince, Tenancy from Year to Year Wainewright, Remainders Walbank, Trusts , Walford, Powers Walker, Estate for Years , Tenancy from Year to Year V. Walters, Tenancy from Year to Year V. Wandlass, Rent ■ V. Ward, Estate for Years • V. Watkins, Tenancy from Year to Year ■ V. Watts, Estate for Years Tenancy from Year to Year 15G6. — V. Weller, Rent — V. Weller, Estate for Years , Tenancy from Year to Year . , Powers — V. Wetton, Estate Tail — V. Wharton, Trusts — V. Wliitroe, Estate for Years — V. Whittiek, Estate for Years , Tenancy from Year to Year — V. Wiggans, Estate for Years — V. Wilbn, Trusts — V. Wilson, Powers — V. Wightman, Tenancy from Year to Year — V. Wilkinson, Estate at Sufferance — V. Williams, Lands ■ , Tenancy from Year to Year 1935 1595 1547 1569 1570 1593 1395 1589 1383 1935 1419 131 1564 1574 . 2060 .2059 1564 1.580 2340 1831 1998 1488 1805 1590 251 13b3 1581 1381 1383 1569 193 1381 1565 2004 981 1935 1426 1500 1572 1288 1831 2097 1583 1599 86 Doe V. W^ocdman, Tenancy from Year to Year — V. Wright, Trusts — V. Wrost, Trusts Dolin V, Coltman, Dower Dolman v. Smith, Assets Donellan v. Read, Rent Doneraile v. Cliartres, Estate for Years Donne v. Lewis, Assets Dore V. Gray, Waters Dorking Market case, Franchises Dormer's case. Rent Dormer v. Fortescue, Dower -, Trusts V. Tiiurland, Powers §1592 1836 1935 1185 49 151 1528 50 113 694 251 1207 1948 2001 1923 211 427 1461 2116 858 80 509 1845 2049 102 37 848 837 1869 135 Downhill v. Fletcher, Dower 1201 Downing v. Seymour, Estate for Years 1434 to for Doruford v. Dornford, Trusts Dorrel v. Andrews, Rent Dorset (D.) v. Girdler, Right Water Doubilotle v. Curteene, Estate Years Douce V. Torrington, Powers Douglas V. Kendal, Copyholds Douglass V. Whitney, Heir Dovaston v. Pa^-ne, Easements Dove V. Everard, Trusts Dover V. Alcxaiulcr, Powers Doverton v. Brown, Ways Dowdale's case, Assets Dowdswcll V. Dowdswcll, Copyholds Down V. Hopkins, Copyholds Downes v. Grasebrook, Trusts V. Moorman, Titiies ■ V, Wilson, Commons — , Estate for Years 1321. — V. Wombwell, Tenancy from Year to Year — V. Wood, Mines 1573 95 1375 1582 100 j Downingham's case. Copyholds ;Downshire v. Sandys, Life Estate 1 Dowse V. Dcrivall, Trusts [ Dowser v. Bell, Dower I Dowlie's case. Estate at Will I Doyle V. Blake, Trusts Doylcy v. Atl.-Gen. Powers Drake v. Munday, Rent Drake v. Munday, Estate for years Drake v. Wylenworth, Mills Drake ford v. Wilkes, Trusts Draper v. Zoucli, Copyholds Drayson v. Pocock, Trusts Drew V. Bayly, Estate for Years Drewell v. Towlcr, Easements Drcwett v. Sheard, Right to Water Drinkwater v. Porter, Ways Driver v. Edgar. Estate Tail Driver v. Thompson, Powers Droney v. Archer Drowt's case, Rent Drowt's case. Estate for Years Druce v. Denison, Trusts Drue V. Baylic, Estate for Years Drury v. Drury, Dower - V. Drury, Jointure 1215 V. Ditch, Estate for Years v. Kent, Common V. Kent, Estate for Years V. Man, Copyholds 908 1040 1741 1199 1548 1842 1980 157 1283 93 1768 914 1827 1433 510 421, 422 102 984 1966 1123 13 1437 1769 1397 1176 1235 1412 329 1163 786 TABLE OF CASES. XXXIU Drybuttcr v. Bartholomew, Interest Land ^ 83 Duberley v. Page, Common 320 Duberlcy v. Page, Copyholds 860 Duck V. Braddyll, Fixtures 24 Duck V. Braddyll, Rent 199 Dudficld V. Andrews, Franchises 633 Dudley v. Audloy, Dower 12 Dudley v. Ward (Ld.), Fixtures 21 Dug-ar V. Norton, Estate for Years 1392 Dug worth V. Radford, Copyholds 871 Dumas, Ex parte, Trusts 1822 Dumnier v, Chippenham (Corp.), Francliises 711 Dununer v. Chippenham, Trusts 1824 Dummer v. Syms, Franchises 704 Dumper's case. Estate for Years 1351. 1512 Dunbar v. Tredennick, Trusts 1798. 1821 Duncan. V. Meicleham, Rent 247 Dunconibe's case. Ways 102 Duncombe or Dncomb v. Duncomb, Dower 112 V. Mayer, Life Estate 1036 V. Mayer, Trusts 1«00 V. Randall, Right to Water 408 169 1288 1547 917 691 Dunk V. Hunter, Rent V. Hunter, Estate for Years V. Hunter, Estate at Will Duun V. Allen, Copyholds Dunstable's (Prior) case. Franchises Dunstan or Danster v. Tresider, Houses Dunstan or Dunster, Copyholds Duplcsis V. Att.-Gen. Trusts Duppa V. Mayo, Rent Durham's (Bp.) ease, Waste Durnford v. Lane, Jointure Durnford v. Lane, Powers Duroure v. Motteux, Land and Money Dutch, W. J. Ca. V. Van Moyscs, Franchises Dutch, W. J. Ca. V. Van Moyscs, Trusts 1787^/, Dutton V. Taylor, Right of Way 373 Dyer v. Awsiter, Powers V. Dyer, Trusts V. Sweeting, Mortgage Dyke v. Ricks, Conditions Dynioke v. Hobart, Mortgage Eade v. Eade, Trusts Eales V. England, Trusts East V. Harding, Copyholds East Grimstcad case. Trusts Eastcourt. See Estcourt. Eastwood V. Winke, Copyholds Eastwood V. Winke, Jointure Eaton V. Jacques, Rent V. Southby Eavers v. Skinner, Copyholds Ebrand v. Dancer, Trusts 89 769 1825 13. 194 2470 1228 1973 73 711 1794 ,386 1986 1782 22406 2129 2226 1774 1137, 1771 849. 877 1800 812 1246 205 240 861 1786 Ecclesiastical Persons' case, Estate for Years 1335 Eccleston v. Berkley, Dower 1210 Edcnborough v. Canterbury (Archbp.), Trusts 1930 Edge V. Strafford Estate for Years 1277 October, 1846. — C Edgington v. Morris, Right of Way § 375 Edwards V. Applcbec, Estate Tail 1007 V. Applebcc, Mortgage 2238 ■ V. Edwards, Powers 2077 V. Freeman, Assets 47 V. Freeman, Uses 1638 V. Hammond, Remainder 2335 ■ V. Hctherington, Rent 206 V. Hctherington, Tenancy from Year to Year 1574 V. Jones, Trusts 1806 V. Moseley, Copyholds 833 V. Slater, Estate for Years 1480 V. Slater, Powers 19G1, 2019 V. Warwick, Land and Money, 61 V. Warwick, Estate Tail 992 Edwin V. Thomas, Descent 2408 Egleton's case, Tenures 746 Egremont (Ld.) Fulman, Right to Water 423 Eire's case. Estates on Condition 21 89 Eland v. Eland, Dower 1200 Eldridge v. Knott, Copyholds' 776 Ellard v. Llandaff (Ld.), Estate for Years 1529 Elliot or Eliot v. Edwards, Mortgage 2207a V. Ehot, Trusts 1777/; Elliotson V. Fectham, Easements 528 , Nuisance 2464 Ellis V. Arncson, Commons d5 V. Ellis, Estate Tail 981 V. Fermor, Common 310 V. Guavas, Mortgage 1 1 . 2278 V. Nimmo, Trusts 1806 V. Rowlcs, Common 350 V. Ruddle, Offices 587 Ellison V. Ellison, Trusts 1806 Elmer's case. Estate for Years 1365 Elmor V. Geale, Estate for Years 1 333 Else V. Osborn, Trusts 1817 Elton V. Elton, Estates on Condition 2157 Elves V. York, (Archbp.), Reversion 2346 Ely (Bp.) V. Kenrick, Common 95 , Copyholds 915 V. (Dean, itc.) v. Warren, Common 273 Emblyn v. Freeman, Land and Money 72 Emerson v. Inchbird, Assets 33 Emertou V. Selby, Common 270. 278 Emery V. Grocock, Trusts 1835 Emot's case, Rent 214 lEmson V. Williamson, Right of Way 388 Emperor v. Rolfe, Powers 2087 England v. Slade, Estate for Years 1427 , , Trusts 1834 Englcficld's ease. Franchises 665 , Powers 1964 Ensden and Denny's case. Estate for Years 1333 Enys v. Donithorne, Estate for Years 1304 Erish V. River, Estate for Years 1.399 Estcourt V. Estcourt, Jointure 1228 and Weeks, Copyholds 877 , Estate for Years 1501 Estoffte V. Vaughan, Uses 1662 Eton College v. Beauchamp, Rent 207 Euro V. Wells, Franchises 631 Eustace v. Scawen, Joint- tenancy 2315 XXXIV TABLE OF CASES. Evans V. Astley, Estate Tail V. Bicknell, Trusts V. Cogan, Life Estate V. Eliot, Rent V. Helicr, Trusts V. Massey, Trusts V. Roberts, Interest in Land V. Ehomas, Estate for Years V. Vaughan, Estate for Years V. Walshe, Estate for Years Evelin v. Davies, Francliises ^ 984 Fereyes v, Robertson, Estate for Years 18801 § 147D 1043 Ferguson v. Cornish, Estate for Years 231 1 1308. 1 7 1 G V. Tedman, Trusts 1888 [Feme's (Dean) ease, Advowson 83iFerrand v. Ramsay, Uses 1286 1318 1531 653 Evelyn v. Chicliester, Estate for Years 1444 Evelyn, Assets , Powers 47 2011 905 2357 793 1521 1761 126 1685 1798 1482 1663 51 Ever V. Aston, Copyholds Everall v. Sinalle, Customary Estates Everest v. Glynn, Copyholds Ewer V. Estwickc, Customary Estates 23G8 V. Clifton, Rent 196 V, Corbet, Estate for Years 1457 v.Moyle, Rent 210 Excester (E.) v. Smith, Common 351 Exel V. Wallace, Estate Tail 981 V. Wallace, Estate for Years 1479 V. Wallace, Trusts 1 808 Exton V. Scott, Trusts 1932 Eyre v. Dolphin, Trusts 1803 V. Dolphin, Mortgage 2257i V. Shaftesbury, (E.) Powers 1975a Eyslone v. Studde, Jointure 1263 Fairclaim v. Shacklcton, Tenancy in Common Fairftix v. Derby, Estate Tail V. Gra}', Rent Fairman v. Green, Trusts Fairtitle v. Gilbert, Estate for Years Ferrars v. Cherry, Trusts Ferrers v. Fermor, Estate for Years V. Fermor, Uses Feverstone v, Secllc, Assets Field V. Boothsby or Boothby, Copy- holds 831, 869 Fielder v. Fielder, Dower 1123 Fielding v. Winwood, Copyholds 918 Filewood v. Palmer, Copyholds 917 Finch V. Finch, Trusts 1786 V. Throckmorton, Estates an Con- dition 2198 V. Tucker, Estate Tail * 997 V, Winehelsea, Life Estate 1056 V. Winchelsea, Estate for Years 1479 V. Winchelsea, Trusts 1712. 1822 Finch's case, Manors , Advowsons, , Estate for Years — , Estate at Sufferance 2317 1008 231 1889 1423 1301 173 1516 2362 2041 Fallon, Ex parte. Estate for Years Falstaft" 's case, Rent Farington's case. Estate for Years Farley's case, Customary Estates Farmer v. Bradford, Powers V. Grant or Hunt, Common 317. 320 V. Wise, Fee Simple 961 Farrance v. Elkington, Rent 256 Farrant v. Lovcll, Mortgage 2218 Farrer v. Billing, Commons 95 Farrers or Ferrer v. Miller, Ancient Fines v. Cobb, Commons Finlay v. Howard, Trusts V. Howard, Powers Fish V. Klein, Trusts ■ v. Rogers, Copyholds Fisher v. England, (Bank) Powers Forbes, Dower Forbes, Jointure Prosser, Tenancy in Common 2317 Smith, Uses 1634 Wigg, Copyholds 785 Wigg, Uses 1660 Wigg, Tenancy in Common 2319 Wren, Common 274. 297 656 800 V. V. V. V. V. V. V. V. 88 lis 1396 1602 351 1827 2109 1825 797 2060 1161 1249 Demesne Faversham Charities, In re. Trusts Fauntlcroy, In re. Trusts Fawcett v. Lowther, Copyholds V. Strickland, Common 937 1827 1827 780 302 1885 Fearns v. Young, Trusts Featherstonhaugh v. Fcnwick,*Trusts 1802 Fell v. Brown, Mortgage 2283 — V. Chamberlain, Estate for Years 1279 Fellowcs v. Mitchell, Trfists 1951 Fenn v. Marriott. Customary Freeholds 922 V. Smart, Reversions 2353 Fenny or Fenney v. Child, Copyholds 876 V. Child, Estate for Years 1307 Fenny v. Durrant, Dower 1153 Fentinian v. Smith, Easements 518 Fenton v. Logan, Rent 238 Fenwick v. Mitforth, Uses 1644 Fishlake's case. Wreck Fitcii V. Hockley, Copyholds Fitcliet V. Adams, Estates on Condi- tion Fitzgerald v. Fauconbridgc or Faucon berg, Trusts V. Fauconbridgc or Faucon- bcrg. Powers Fauconbridgc or Faucon- berg, Mortgage Jervoise, Trusts .Marshall, IMills O'Connell, Estate for Ycr.rs Rainsford, Estate for Years In re. Estate for Years Fitzherbcrt V. Shaw, Fixtures Fitzwaltcr's case. Waters Fitzwilliam's case, Powers Flanagan v. Flanagan, Land and Money 74 Fleetwood's case. Estate for Years 1477 , Trusts, 1748 Fleming v. Gooding, Estate for Years 1425 Fletcher v. Ashburncr, Land and Money 6174 V. V. V. -V. V. 2190 1777a 1965 2258 1759 93 1526 1534 1412 19 108 2070 TABLE OF CASES. XXXV Fletclicr v. Ingram, Franchises § 648 ■ V. Smiton, Fee Simple 958 Flight V. Thomas, Ri;?ht to Light 452 Floyd V. Bucklaud, Estate for Years 1291 Floycr v. Las'ington, Mortgage 2202r/ Focus V. Salisbury, Estate for Years 1480 Foiston V. Crachrode, Common 274 Foley, Ex parte, Powers 2111 V. Burncll, Estate Tail 998 V. Burnell, Trusts 1818 V. Parry, Trusts 1775 Folkard v. Hemmett, Common 315 V. Hemmett, Copyholds 855 Folkinffham v. Crofl, Estate for Years 1509 Follett V. Follett, Powers V. Troake, Customary Free. holds Foone V. Blount, Trusts Foot V. Salway, Estate for Years Forbes v. Ross, Trusts V. Wilson, Copyholds V. Wilson, Waste 1983a Ford V. Gray, (Ld.) Joint-tenancy V. Gray, Title V. Hoskins, Copyholds • V. Peering, Jointure V. Peering, Trusts Forder v. Wade, Dower Fordiee v. Willis, Offices Forrester v. Leigh, Assets Forsight V. Grant, Jointure Forster v. Forstcr, Life Estate Forth V. Chapman, Annuity V. Chapman, Estate Tail Fort V. Ward, Common V. Ward, Copyholds Fortescue v. Barnett, Trusts V. Hcnnah, Jointure Fortrey v. Fortrey, Assets Fory V. Fory, Assets Foskcw's case. Estate Tail Eoster V. Blagden, Assets V. Cook, Assets V. Cook, Dower V. Deacon, Trusts V. Hale, Trusts V. Hall, Estate for Years V. Mount, Trusts V. Pitfall, Jointure V. Romney, Uses V. Spooner, Estate for Life Foster's case. Ways Fothergill v. Forthergill, Jointure V. Forthergill, Powers V. Kendrick, Mortgage Fountain v. GoocIl, Estate Tail Fowkes V. Joyce, Rent Fowler V. Dale, Common V. Nortli, Powers V. Sanders, Right of Way, Foxton and Colston, Copyholds Frampton's case. Uses Frances v. Ley, Heir-looms V. Ley, Easements Francis v. Doe, Estate for Years V. Wyatt, Rent Franeum or Frankum v. Falmouth (E.), Waters Frank v. Standish, Election Franklin's case, Estate Tail case. Powers §874 1636 16 499 1425 239 406. 439 2431 994 1982 2180 1480 742 1532 910 923 1759 1279 1905 851 2467 23U8 2375 792. 913 1248 1899 1174 587 56 1246 1056 264 981 332. 343 897 1806 1243 35 58 1010 58 58 1195 1760 1764 1291 1769 12G4 1640 1045 102 1238 2011 2252 984 2.38 282 2066 390 France's case, Estate on Condition Freeman v. Barnes, Estate for Years V. Booth, Tenures • V. Boyle, Estate for Years V. Phillips, Copyholds 793. V. West, Fee Simple 951 , Estate for Years 1362 1230 45 11.95 768. 821 1983 1016 2314 960 1417 905 1399 484 2157 634 2095 881 Freemoult v. Dedire, Jointure French v. Chichester, Assets V. Davis, Dower French's case. Copyholds Freshfield v. Reed, Powers Fresliwater v. Rois, Estate Tail Frewin v. Rolfe, Joint-Tenancy Frogmorton v. Holyday, Fee Simple Frontin v. Small, Estate for Years Frosel v. Welch, Copyhofds , Estate for Years Fry V. Flood, Right to Pews • V. Porter, Estates on Condition Frye v. Burgh, Franchises Fryer v. Coombs, Powers V. Crisp, Copyholds V. Johnson, Easements, Fulgeam's case. Rent Fuliiam V. Jones, Land and Money Fuller V. Lane, Churches , Right to Pews Fuller''s case. Houses Fulwood V. Ward, Rent 499 183 65 90 484 89 209 7 697 Fulwood's ease. Chattels Real case, Franchises case. Statute Merchant, &c, 2292 Furicy v. Canterbury, (Mayor,) Ten- ancy from Year to Year 1578 Futter V. Borome (not Bozoun,) Tithes 1 35 Fyler v. Fyler, Trusts 1921 Gabriel v. Clerk, Offices 560 Gage V, Acton, Rent 196 , Copyholds 868 Gage V. Acton, Merger, 245J — V. Smith, Waste 246S Fox V. Oakley, Estate at Sufferance 1599 — V. Rutty, Tithes 1 36 — V, Swan, Estate for Years 1508 Fox's case, Uses 163 Foxall V. Venables, Common 281 Foxley's case, Franchises 672 Foxley v, Annesley, Curtesy 1094 Gainsborough v. Gainsborough, Trusts 1792 Gale V. Gale, Joint-Tenancy V. Noble, Customary Freeholds Gaily V. Selby, Advowsons Galton V. Hancock, Assets , Dower Mortgage Game v. Synijns, Assets Gardiner v. Fell, Assets — • — V. Griffith, Ads'owsons, ■ , Estate for Years • V. Norman, Copyholds Gardner v. Roper, Trusts 231 921 13i 45 H95 2202c 35 37 120 1460 797 1764 XXXVl TABLE OF CASES. Gardner v. Rowe, Trusts Garfoot v. Gfirfoot, Triistg Garforth v. Fearn, Offices Gargrave v. Gargrave, Common Garland v. Jek}'ll, Copyholdg Garmstone v. Gaunt, Trusts Garnish v. Wentworth, Uses Garrard v. Lauderdale (Ld.,) Trusts Garrit v. Sliarp, Right to Light, &c. Garth v. Baldwin, Chattels Real , Estate for Years , Trusts 1707 (larthshore v. Chalie, Jointure Gasgoine v. Barker, Land and Money V. Tliwing, Trusts Gaskill V. Ilarman, Trusts V. Hough, Assets' Gate V. Wiseman, Dower Gatewood's case, Common . , Copyholdg , Prescription Gee V. Frceland, Offices Geere V. Burkcnsham, Franchises (iell V. Vcrmuden, Heir Gcnner v. Sparke, Houses (iennings v. Lake, Estate for Years George v. Palton, Advowsons V. Lawlcy, Franchises . V. Millbanke, Assets , Powers Gerard or Gerrard v. Boden, Annuity V. Gerard, Dower , Powers I • • V. Worsley, Uses ■Gerrard v. Cooke, Right of Way ■Gervoyse's case. Jointure ■Gibbons v. Baddall, Mortgage V. Pott, Copyholds •. Girard, Dignities . Rumsey, Trusts . Moulton, Powers V. Clarke, Tithes V. Joyer, Trusts Gibson v. Mountfort (Ld.,) Fee Simple ■ , Trusts V. Roger, Uses Searl, Estate for Years 1934 Glover \. Cope, Customary Freeholds Lane, Common , Franchises Monckton, Fee Simple , Trusts 1761a 574 347 785 1886 Glyn v. Scawen, Commons 1634 'Glynn v. Harding, Trusts 1779|Godbolt's case. Offices 456 I Goddale's case. Estate, at Will 7 Goddard v. Complin, Jointure Mortgage 1479 1714 1243 Goddard's case. Rent ■ Godfrey and Dixon's case, Usea 72 : Go 917 1731 1772 2107 273 2202 TABLE or CASES. xlvii Mellow V. May, Estate for Years § 1492 Melsington v. Musgrave, Estate for Years 1539 Melton's case, Estate Tail after, &c. 1068 Melwich V. Luter, or Mehvicli's case, Manors, 88 , Franchises 635 , Copyholds 767. 875 MenviU's case, Dower 1128. 1185 Menzies v. Breadalbane, Right to Monk V. Butler, Easements , Estate for Years Water Meredith v V, Gilpin, Title Hencage, Trusts V. Jones, Uses Meriton v. Gilbee, Rent Merlins v. Joliffe, Trusts Messenger v. Armstrong, Tenancy from Year to Year Mestaer v. Gillespie, Trusts Metcalf or Scott v. Scholcy, Trusts Meure v. Meure, Trusts Meux V. Bell, Trusts Miall V. Brain, Dower Michael and Christmas, Common Midliurst v. Waite, OfBces Middleton v. Cater, Dower V. Crofts, Powers V. Janverin, Dower 421 2378 1773 1648 230 1799 1570 1822 1738 1808 1880 1196 2S8 567 1195 1969 1122 1903 999 1690 2134 31 i Id ma}' v Estates " ' 2359 Miles V. Rose, Right of Way 372 V. Williams, Annuity 263a Milfax V. Baker, Copyholds 888 Millard's case. Trusts 1821 Miller v. Mainwaring, Curtesy 1112 , Estate for Years 1300. 1499 V. Walker, Common 282 V. Warmington, Commons 95 V. Milles, Estate for Years 1534 Milliner v. Robinson, Estate for Years 1403 V. Spicer, Trusts 1713, Mildmay's case, Estate Tail , Uses 1631, , Estates on Condition Hungerford, Customary (Ld.) Powers Mills V. Mills, Trusts V. Parsons, Uses V. Robart, Trusts V. Ward, Common Milne or Milner v. Harewood, Jointure Milnes v. Slater, Assets Mil ward v. iMoore, Powers V. Thatcher, Offices Mine's case. Fee Simple Minshull v. Minshull, Estate Tail Mirehousc v. Scaife, Powers Mireton v. Gilbee, Rent Mitchell V. Bower, Trusts Mitford V. Mitford, Trusts Mitton V. Lutwich, Reversions Mitton's case. Offices Mogg V. Hodges, Assets Mole V. Smith, Dower Molyneux's case. Tenancy from Year to Year 9 514 1463 , V. Cooper, Rent 202 Monk's case. Rent 240 Montague's (Lady) case, Copyholds 875 , Estate for Years 1399 Montford v. Cadogan, Trusts 1822, 1951 Moodelly v. Morton, Franchises 711 Moodie or Moody v. Garnance or Gar- non. Rent 12. 214 1885 1632 1889 272 1215 1973 50 1975a 561 963 990 2115 254 1889 1822 2346 534 58 1176 1569 Estates on Condition 2142 %'. Matthews, Estate for Years 1430 V. Walter, Trusts 1867 JMoore or Moor v. Brown, Right to Water 441 . , Nuisance 2464 V. Foley, Estate for Years 1525. 1527 V. Frowde, Trusts 1927 V. Huntingdon, Copy- holds 913 V. IMagrath, Uses 1641 V. Mellor, Fee Simple 960 V. ]Moore, Customary EsUtes 2355 V. Musgrave, Estate for Years 1304 V. Pit, Copyholds 864 V. Rawson, Right of Way 382. 384 , Right to Light, &c. 445 v. W'ickers, Franchises 646 , V. Woodgame, Copy- holds 883 Mordaunt \. Peterborouffh, (E.) Powers 1983 V. Thorold, Dower 1204 More's case, Estate for Years 1509 Morgan v. Bissell, Estate for Years 1282 V. Curtis, Right to Pews 487 V. Evans, Right to Water 423 , Ex parte, Trusts 1840 V. Griffiths, Estate Tail 981 V. Morgan, Curtesy 1108 V. Slaughter, Estate for Years 1509 Morgell V. Paul, Tenancy from Year to Year 1571 Morice v. Durham, (Bp.) Trusts 1772 Morley v. Bird, Trusts 1703 Morrct v. Paske, Mortgage 2256 Morrice v. Antrobus, Rent 176 Morris v. Barry, Estate for Years 1403 V. Ld. iierkeley, (Lessees) Right to Light, &c. 475 V. M'Culloch, Offices 587 V. Dimes, Woods, lie, 96 V. Edffington, Right of Way ^ ^ 368.397 V. Stevenson, Dower 1186 Morrison v. Morrison, Trusts 1927 3Ioore v. Falkner, Copyholds 779 V. Roval, Trusts 1943 V. Webbe, Common, 272. 340 Morten v. Roe, Ancient Demesne 937 xlviii TABLE OF CASES, Mosley or Mosley v. Chadwick, Fran chiscs ! Neachcl, In ix>, Trusts - §1862 §69GjNeatc v. Marlborouj^li, (D.) Statute V. Mosley, Powers 20151 ^Merchant, ite. — — V. Pierson, Fran- chises ■ V. Walker, Fran- chises Moses V. Levi, Trusts Moss V. Galliniore, Rent , Estate for Years J-:- , Mortgage Mott V. Burton, Trusts V. Buxton,«Copyholds Moalton v. Hutchinson, Powers Mountfort, Ex parte, .Alortgago Mountjoy v. Terdrue, Common , Estate for Years Mountjoy's case, Rent , Copyholds ■ , Estate lor Years 1323, 'Ncave v. Alderton, Assets V. Moss, Estate for Years 683 1 I Nelson's case, Common 630 Nepcan v, Goddard, Copyholds 1916 Nesbit v. Tredcnnick," Estate 201 i Years 1390 Notliertonv. Waters 2213 Nevil's case, Annuities , Offices , Dignities , Estate Tail for 1T07 914 2037 2203 331 971 1462 176 821 Mounton V. Lyster, Offices Mousley v. Carr, Trusts Moyle V. Meyle, Waste Moyse or Movses (not Moyre) v. Giles Trusts 1783 1371 535 1922 2469 Xevil and Saunders, Uses V. Saunders, Trusts 1707. Nevill or Neville v. Hopicrton, Common V. Joddrcll, Common V. Rivers, Estate Tail Newcastle (D.) v. Lincoln, (Countess) Trusts Newcomb v. Bonham, ^Mortgage Newman v. Anderton, Rent V. Newman, Copyholds , Dower 2294 45 1427 336 837 1534 113 263 583 607 992 1658 1629 322 95 980 1818 2202 172 834 1200 961 88 917 Joint-tenancy 2313 Muclow V. Fuller, Trusts 1SS3 Muckleston v. Brown, Trusts 1766. 1768 Mullineux v. MuUineux, Commons 95 Mulvany (not Mulvaney) v. Dillon, Trusts ^ 1844 Muinma v. Mumma, Trusts 1786. 1826 INIundy v. Mundy, Dower 1205 Munroe v. Kerry, (Lord) Estate for Years 1428 Murless v. PVanklin, Trusts Murray v. Wise, Fee Simple Murrel v. Smith, Manor Musgrave's case. Copyholds Musgrave v. Cave, Common , Copyholds Musprat v. Gregory, Rent flutter V. Chauvel, Advowsons 120! Nab V. Nab, Trusts Nagle V. Edwards, Tithes Nail V. Punter, Trusts Nairn v. Prowse, Trusts Naish v. Tatlock, Rent Nalson v. Kcnnington, Copyholds Nandick v. Wilkes, Trusts Nannoch v. ITorton, Powers Napier v. Napier, Powers Napper v. Sanders, Remainders Nash and Ashton, Estates on Condi- tion 2187 V. Derby, (E.) Copyholds 875. 915 v. Preston, Dower — — V. Smith, Trusts V. Turner, Estate for Years Brandling, Right of 363. 397 93 1725 2474 1785 1754 2362 260 Newmarsh Way Newte V. Chamberlain, ^lills Newton v. Bcnnet, Trusts V. Harland, Entry V. Preston, Trusts V. Reid, Trusts v. Shafto, Customary Estates V. Weeks, Annuity Nichols or Nicholls v. Nichols, Estate for Life 1415, 1416 V. Parker, Tithes 135 V. ShetTield, Uses 1682 1843 1038 1720 913 1173 1837 37 95 1437 17776 93 695 1479 1715 Nicloson V. Wordsworth, Trusts Nio-Iitingale v. Lawson, Life Estate 28liNorclitr v. Worsley, Trusts 835JNoden v. Griffiths, Copyholds 239 Noel v. Jevon, Dower Trusts v. Robinson, Assets 1765; None v. Reed, Commons 136 Norden v. Levett, Estate for Years Norfolk (D.) V. Brown, Trusts V. Myers, Mills , Franchises 1951 1761 258 905 1 Norfolk's (D.) case, Estate for Years 809 ! , Trusts 1994.Norrice or Norris v. Baker, Woods, 1994 i &e 2333 96 810 V, Norrice, Copy- holds V. Trist, (not Turst) Estate for Years 1399 638 916 Notion V. Tozcr, Rent Naylor v. Arnitt, Trusts v. Baldwin, Dower , Jointure 1173 Norris (Ld.) v. Barret, Franchisas 1789' V. Le Neve, Copyholds 1426' v. Staps, Franchises 701 207 Norse and Webb's case. Common 271 1880 North v. Ansell, Jointure 1241 1185 V. Champernoon, Life Estate 1056 1257 , Trusts 1720 TABLE or CASES. xliz North V, Coe, Commons , Copyholds — - V. Compton, Trusts V. Dacre, Manors V. Hovk', Ancient Demesne Northampton 'Ld.y v. St. John, (Ld.) Franchises ''Ma.j.j r. Ward, Fran- chises Northcote v. Duke, Estate for Years Northumberland's (E.) case, Heir- looms Northwick (Ld.) v. Stanton or Stan- v,ay, Common , Copyholds Norton v. Fricker, Life Estate V. Ladd, Fee Simple V. Turvil, Trusts Norway v. Norway, Trusts Nottingham v. Jennings, Estate Tail (^ley.) V. Lambert, Wa- ters V. Swan, Fran- chises Nourse v. Finch, Trusts Nowlan v. Nelligan, Trusts Noys V. Mordaunt, Mortgage Nonn v. Lufifkin, Copyholds Oakapple v, Copous, Tenancy from Year to Year Oakley v. Adamson, Right of Way Gates v. Cooke, Trusts v. Frith, Rent V. Jackson, Joint Tenancy O'Brian v. Knivan, Estate for Years O'Brien v. Grierson, Rent OJeham v. Smith, Copyliolds Ogle V. Cook, Land and Money , Trusts Ognell's case, Rent Oke V. Heath, Powers Okeden v. Okeden, Powers O'Keefe v. Calthorpe, Trusts Oland's case, Life Estate , Estate at Will Oldcot V. Levell, Copyholds , Custom a rv Estates Oldfield's case, Right of Way Oldham v. Hughes, Land and ZMoney V. Pickering, Life Estate V. Litchford, Trusts Oldknow V. Wainwright, Francliises Olive V. Ingram, OiEces Oliver v. Court, Trusts V. Richardson, Dower V. Taylor, Customary Free- holds Ommany v. Butcher, Trusts O'Neal f. Mead, Assets Onlcy V. Gardener, Right of Way Onslow V. Corrie, Estate for Years , Trusts Opie V. Thomasius, Estate Tail § 278]Ord v. White, 3Iortgage 858 Ordeway v. Orme, Common 1787o]Orland's case. Estate at Will &6,Ormond (Marquis) t. Kynersley, 9371 Trusts j Osborn and Jay, Estate for Years 676,Osbom or Osborne v. Garden, Copy- holds 6=6' V. Wise, Right of Way loOl Osborne's case, Estate for Years Osborne v. Lea, ^Mortgage 16 Otred V. Round, Dower Osbrey v. Bury, Powers 315 Osburne or Osborne v. Stnre, Copy- 792 1 holds 10.56, V. Wise. Estate 961 1 for Years 1729 lOsbuston v. James, Franchises 1845 [Osgood V. Strode, Trusts 982,Otway v. Hudson, Land and Money , Dower 109, , Customary Es- ' tates, 6S6 ,Ould V. Conoye, Common 1769 Outhwaite v. Outhwaite, Dower 1771 Oveton v. Banister, Trusts 11 Owen V. Ap. Rees, Estate for Years 876 V. Foulks, Trusts, V. Stainol, Advowsons , Franchises 15";2 Owen's case, Ancient Demesne 361 Oxenden v. Compton, (Lord) Land and 1832 Money 151 Oxford 'Mav.) v. Richardson, Waters 2304 , , Right to 1340 i Water 176 [Oxford (Queen's Coll. Hallett or Oson's (Bp.) case. Estate for Years , Trusts , Powers § 2242 275 1551 1803 1355 819 366 13C^3 2248 1156 2063 804 1279 684 1813 63 1174 2266 318 1209 1-S7 1339 1945 121 718 938 806 72 1794 223 2034 2086 1827 1048 1551 iPackington's case, Life Estate 874 Paddy v. !Madden, Fee Simple 2357 Page v. Broom, Trusts 373 V. 3Ioulton, Uses 67 i Paget v. Foley, Rent 10541 V. Gee,'Rent 1768 Paget's (Ld.) case. Uses Oxford's (Ld.) case, Copyholds Packer v. Gibbins, Rent T. Walsted, Right of Way Orby V. Mohun, Rent Estate for Years Ord V. Smith, Mortgage OCTOBEK, 184B.— D 718 557 1869 1208 921 1777a 46 3=1 1400 1881 999 176 1373 2270 Pain V. Patrick, Right to Water Paine v. ]\Ieller, Trusts Paine's case, Estate Tail , Curtesy , Estate for Years Pale v. ^Mitchell, Trusts Palfrey v. Baker, Rent Palliser v. Ord, Powers Palmer v. Barfoot, Franchises v. Bate, Otliccs V. Butler, Franchises V. Danby, Mortgage V. Edwards, Estate for Years V. netcher, Right to Light 73 108 409 349 1336 18?6 1965 620 257 373 1041 960 1778 1614 243 220 1631 409 1761 971 1087 1325 1719 196 1964 646 537 727 2266 1388 &c. 450. 465 TABLE OF CASES. Palmer v. Hamilton, Estate for Years § 1293. 152G V. Richards, Fee Simple V. Wheeler, Powers . V. Young-, Estate for Years , Trusts Palmer's case, Common Palmes or Palms v. Danby, Dower Panel v. Moor, Title Papillon V. Voice, Estate Tail , Trusts 1770 for Paradine v. Jane, Rent Paramour v. Yardley, Estate Years Partridge v. Pawlet, Trusts Partyn v. Roberts, Trusts Parke or Paske v. Harris, Rent-charge Parker v. Blake, Customary Estate V. Brooke, Estate lor Years , Trusts 9(50 201 U./ 1543 1802 325 1163 2375 1014 1808 202 V. Cook, (Copyholds V. Downing-, Dower V. Gage, Copyholds V. Harvey, Jointure V. Kett, Ortiees , Powers Peachy v. Somerset (D.), Copyholds , Title by Escheat Peacock v. Peacock, Estate at Will Peakc V. Pcnlington, Trusts Pearce v. Baron, Trusts , Powers V. Mitchell, Right of Way V. Thacker, Estate Tail V. Turnerj Copyholds Parkes v. White, Trusts Parkin v. Redeliffe, Copyholds Parkinson's case. Franchises Parmenter v. Webber, Rent Parrott v. Sweetland, Mortgage Parry v. Gibbs, Tithes V. Harbcrt, Estate for Years Parsons v. Baker, Trusts V. Freeman, Assets V. Thom]>son, Offices Parthcriche v. Mason, Waters Parton v. Mason, Copyholds Partridge v. Berc, Fixtures ■ V. Scott, Easements, Paston V. Mann, Copyliolds . — V. Utbert, Common Pastriche v. Powlct, Joint Tenancy Paton V. Brebncr, Right to Water Patrick v. Balls, Franchises ■ — V. Lowre, Common Paul V. Compton, Trusts V. Nurse, Rent Paulet's case, Escheat Paulett, Pawlet, or Pawlett v. Att.- Gen., Mortgage _^__ , Uses -, Trusts — V — V, Compton, Trusts Drewc, Estate for Years V. Pawlet, Powers Paulter v. Cornhill, Copyholds Pawsey v. Lowdall, Uses Payne v. Rogers, Trusts V. Shedden, Right of Way Paynell's case, Dower Peaceable v. Read, Tenancy in Com- mon 1395 1783 1830 151 23b3 1534 1749 881 1200 806 1230 566 1964 381 979 SJ9 1752 816 724 223 2207^/ 136 1.508 1771 48 574 108 811 24 502 821 322 2314 417 705 271.278 1771 205 2416 11 1608 1822 1821 V. Chcslyn, Estate for Years Pcarh' V. Smith, Rent Pearson v. Pearson, Dower 1195. Pease v. Badtitle, Ancient Demesne Peat V. Powell, Fee Simple Peers v. Lucy, Right to Water Pelham (Ld.) v. Gregory, Estate for Years V. Pickersgill, Ways V. Wiatt, Ways , Franchises Pell V. Tower, Franchises, 631. Pellatt V. Ferrars, Tithes Pells V. Brown, Estate Tail — , Uses Pembroke v. Baden, Land and Money V. Berkeley, Offices Pembroke's (E.) case. Common Per.n v. Baltimore, Trusts V. JMerivall, Copyholds V. Peacock, Powers 19 63. Pennant's case. Estate for Years 1351 , Estates on Condition Pennington v. Morse, Estate at Suf. ferance Pennyfather, In re, Powers Penruddock's case, Riffht to Water Penrhyn v. Hughes, Mortgage Pense or Pierce v. Prowse, Churches Pentland v. Stokes, Trusts Pentonv. Robart, Fixtures Pep|)in V. Shakspear, Copyholds Perkins or Perkyns v, Bayntura, As- sets § 878 2416 1547 1819 1819 1906a 12S4 320 1199 936 961 409 1419 102 102 631 1653 1355 981 1699 63 580 299 1822 888 2019 1513 2197 1.598 2111 442 2244 90 1933 22 860 49 . Titus, Copyholds 788 Pcrrin v. Blake, Estate Tail V. Brook, Estate for Years Perrot's case, Uses Perry v. Allen, Estate for Years V. Phelps, Uses Perth V. Shephard, Estates on Con- dition Peter v. Kendal, Waters Peters V. Masham, Powers Pctfield V. Pierce, Uses Petre (Ld.) v. Blencoe, Tithes V. Jointure 1170 2044 837 1699 1866 381 1189 2317 Pettman v. Bridger, Churches , Right to Pews Petty V. Evans, Copyholds 1 , Estate for Years V. Styward, Trusts Joint-tenancy 987 1290 1636 1496 1661 2152 108 1996 1638 137 1248 90 488 905 1403 1783 2307 504 1996 Peyton v. London (May.) Easements Phelp or Phelps v. Hay, Powers V. Wincheombe or Winseombc, Offices 563 Philips or Phillips v. Brvdgcs, Trusts 1719 V. Bucks (D.), Land and Money 62 V. Bury, Franchises 721 TABLE OF CASES. li Philips or Phillips Ex parte, Land and Money § V. Trusts Hartley, Estate for Years — V. Manning, Trusts — V. Paget, Trusts — V. Phillips, Assets , Trusts Philpot V. Hoare, Rent — , Estate for Years Phipps V. Anglesca (E.), Heir V. Annesley. Assets V. Kelynge, Trusts Phipson V. Sculthorpc, Rent, V. Turner, Powers Physicians (Coll. and Butler) v. Sal. men. Franchises Pibus V, Mitford, Uses 1644. Pickering v. Kempton, Commons V. Pickering, Trusts V. Rudd, Trespass V, Towers, Estate Tail V. Vowles, Estate for Years , Trusts Pierce v. Fauconbeg, Waters . , Right of Way Piers V. Hoc, Life Estate Pierson v. Garnet, Trusts V. Ridge, Franchises V. Shore, Land and Money V. Vickers, Estate Tail 980, Pigot or Piggot V. Birtles, Rent V. Garnish, Estate for Years V. Hearn, Titlics V. Palmer, Jointure V. Penrice, Powers 78 1762 1290 1729 1887 46 1792 205 1455 82 49 1716 257 1985 701 1688 95 1885 2458 982 1534 1839 107 373 1062 1775 654 78 986 238 1393 136 1261 2041 1778 194 1449 V. Shallcr, Estate for Years 1386 Pilkington's case. Offices 585 Pindar v. Ainsley, Rent 202 Piner v. Judson, Estate for Years 1284 Pinket and Wright, Trusts 1934 Pinnel v. Hallet, Jointure 1232. 1240 Piper V. Piper, Powers 2065 Pit or Pitts V. Ciiick, Copyholds 858 V. Hunt, Trusts 1710 V. Jackson, Powers 2047 V. Pelliam, Trusts 1761« , Powers 1978 50 Plcydell or Plcadel v. Gosmore, Fran- chises Plim[)ton V. Dobincf, Copyholds Plowdcn V. Oldford, Estate for Years Pluncknet v. Kirk, Mortgage Plummer v. Whitchcolt, OtEces Plunkct V. Holmes, Curtesy , Merger Plunkct V. Penson, Assets , Trusts Mortgage Plymouth (E.) v. Hickman, Trusts Pocklcy V. Pockley, Assets Mortgage 1774, Pocock V. Reddington, Trusts Rodger's case. Copyholds Podmore v. Gmming, Trusts Pollexfen V. iMoorc, Mortgage Policy V. Seymour, Land and Money Pomcry v. Partington, Estate for Years Pomfrct V. Ricroft, Life Estate §665 820 1343 2264 569 1101 2452 43 1724 2264 1785 42 227 6« 1878 843 1768 2207a 69 1045 V. Windsor, Estate for Years 1480 Pont V. Pont, Ancient Demesne Poole V. Bentley, Estate for Years V. Pass, Trusts V. Poole, Estate Tail •. , Trusts Poole's case, Fixtures Poordage's case, Franchises Pope V. Davis, Rent V. Pope, Trusts Popham V. Bampfield, Trusts , Estates on Con- dition Porter v. Bradley, Estate Tail , Uses Pilkington v. Bayley, Trusts V. Dalton, Rent V. Peach, Estate for Years Porter's case. Estates on Condition Portington's case. Uses , Trusts , Powers Portlock V Portmore Water , Gardiner, Trusts (E.; V. Bunn, Right to V. Raymond, Assets V. Smith, Estate for Years 1414 Snowden, Rent , Dower Pitts V. Gainer, Franchises Place V. Flagg, Fixtures Plant V. James, Right of Way Piatt V. Piatt, Estate for Years V. Sprigg, Trusts Player v. Roberts, Copyholds Playne's case. Rent Pleasant v, Benson, Tenancy Year to Year from 225 1198 711 24 385 1485 1913 854 204 1592 Portsmouth (Ld.) v. Effingham (Lady,) Jointure Postman v. Harrell, Rent Potter V. North, Common Poulteney v. Holmes, Estate for Years Povy's case. Assets Powcl V. Powel, Heir , Estate Tail 938 1283 1899 983 1714 22 650 248 1774 1830 2160 981 1613 2165 1667 1768 1972 1854 417 1248 244 314 Powell V. Bull, Tithes V. Killick, Rent V. Londall, Powers Powell V. Powis, Copyholds V. Price, Trusts V. Weeks, Dower Powis V. Corbett, Assets V. Smyth, Rent 1388 51 81 1007 134 230 2037 917 1801, 1810 1190 50 228 1984. Pleazance v. Higliam, Estate for Years 1285 Powsly and Blackman's case, or Pow- sely V. Blackman, Estate at Will Mortgage Prat V. Steam, Franchises Prebblc v. Boghurst, Jointure Prcdyman v. AVodry, Franchise 1545 2213 704 1244 704 m TABLE OF CASES. Preece v. Corrie, Rent Prescott V. Boucher, Rent Presg-rave v. Shrewsbury (Church,) Right to Pews Preston v. Mercer, Right to Water V, Waccy, Dower 1186 Pretty v. Butler, Common 277 Prevost V. Clarke, Trusts 1771 Price V. Carver, Mortgage 2283 V. Dyer, Estate for Years 1308 V. Perrie, Mortgage V. Simpson, Estate for Years Prichard v. Ames, Trusts Pricket, Ex parte, Estate for Years Priddle and Napper's case, Tithes Pride v. Bath (E.,) Descent Priestling v. Hughes, Dower Prigg's case. Franchises Prince v. Lewis, Franchises V. Moulton, Riglit to Water Prince's (the; case, Dignities —. , Fee Simple . , Estate for Life Pring V. Pring, Trusts Pringle v. Wernham, Riglit to Light, &.C. Probert v. Morgan, Jointure Prodger's case. Copyholds Proud V. Hollis, Right of Way Prouse's case. Franchises Prowse V. Abingdon, Assets , Trusts Pruett V. Drake, Common Leeds (Duke,) Estate for Years V. Ryall, Estate for Years Puleston V. Puleston, Trusts Pullen V. Palmer, Rent , Joint-Tenancy Pultcncy V, Darlington, Land and Money , Trusts §223 Railey v. Best, Common 230 Randal v. Riccardson, Land Roberts, Tenures § 95 85 755 483 Randall v. Bookey, Land and Money 72 418 i V. Errington, Trusts 1787a, 1945 V. Jenkins, Tenures ■ V. Randall, Land and Money Trusts V. Tuchin, Fee Simple V. Willis, Jointure 2202 Rashley v. Masters, Land and Money 1396JRastal v. Turner, Copyholds ] 749 [RatcIifFv. Grave, Assets 1413 Ratcliffe's case, Descent 137 1 Rattle v. Popham, Estate for Years 2392|Ravenhill V. Dansey, Powers 1123iRavensliaw v. Hollicr, Trusts Rawe v. Chichester, Estate for Years Rawlinson v. Green, Customary Es- tates , Montague, Life Estate Rawson v. Eycke, Estate for Years Ray V. Pung, Powers ~ ~ V. Allen, Copyholds V. Brookman, Estate for Years 648 692 418 605 968 1396; 1769 Read or Rcade Pugh 463 1230 78o 363 650 42 1725 308 1301 1454 1766 227 2308fl Warren, Dower -, Trusts Pulvertoft V. Pulvcrtofl, Trusts Purbeck's (Ld.) case, Dignities , Estate Tail Pur eel v. Purcel, Powers Purefoy v. Rogers, Merger, Pusey v. Desbouveric, Dower Pushman v. Filliter, Trusts Pultenham's case, Rent Pybus, See Pibus Pye V. George, Trusts 1800, Pyne v. Dor, (1 T. R. 55), Life Estate Quarlcs v. Capell, Assets Qarrell v. Bcckford, Mortgage Queen (The) and Littleton's case, Estate for Years 61 1759 1207 1948 1779. 1806 608 993 2084 2452 1200 1771 167 1913 1040 45 2230 1495 Rabbet v. Raikes, Timber Rackham v. Jessup or Jesup, mon Radford v. Young, Estate for Years Radnor (Lady) v. Rotherham, Dower Raikes v. Towsend, Right to Water 430 26 Com- 325. 359 1432 1207 Read V. Erington, Uses V. Hatton, Fee Simple v. Lawrence, Rent V. Nash, Estate for Years , Powers V. Reade, Trusts V. Sncll, Estate Tail , Trusts V. Sparkes, Trusts Reading v. Rawsterne, Title V. Royston, Tenancy in Com- mon Workworth, Franchises Reay v. Huntington, Tenures , Customary Free- holds Redington v. Redington, Estate Tail , Trusts Redpath v. Roberts, Rent Reech v. Kennigall, Trusts Rees, Ex parte. Franchises V. Dacre, Estate for Years V. Phillip or Pliillips, Rent , Estate for Years 752 78 1802 958 1241 61 882 40 2396 1369 2085 1779 1534 2355 1053 1289 2054 885 1275 1641 960 214 1363 1966 1948 981 1808 1901 2380 2317 695 735 921 1009 1784 205 1768 727 1527 214 1373 2411 111 1984 207 2060 Remnant v. Bremridge, Rent 207. 258 Ren V. Bulkeley, Estate for Years 1380 Rcnnell v. Lincoln (Bp.), Next Pre- sentation 910 Rennie v. Robinson, Estate for Years 1425 Renninglon's case, Dower 1120 Reeve v. Att.-Gen., Title by Escheat V. Digby, Waters Reid V. Shergold, Powers v. Tenterden (Ld.), Rent Reith V. Seymour, Powers 1966. Repington v. Tamworth School, Next Presentation Repington v. Tamworth School, Ad- vow sons Rercsby v. Farrer, Commons 9 131 95 TABLE OF CASES. llll Rcre Rcve Rcvc R. V. - V. V. V. V. ■ — V. V. V. V. V. V. V. by V. Newland, Powers V. I\l;ilster, Tenures 11 V. Joddrcll, Common , Copyholds Abcravon, Common Adlard, Fraiicliises Aire and Caldcr Navigation Co., Waters Aldborough, Estate for Years Allesbury, Mines AUgood, Copyholds All Souls (Coll.), Franchises Alsop, Franchises Atkins, Franchises Bagshaw, Right of Way Bath (Corp.), Interest in Land Bellringer, Franchises Bernard, Franchises Bettsworth, Franchises , Ancient Demesne § 208.'5 749 340 1708 310 649 647 V. Bingham, Offices V. Bland, Franchises V. Bliss, Right to Light, &c. V. Blythe, Franchises V. Boldero, Tithes V. Bonsai (Ld. Man.), Copyholds V. Boscawen, Franchises • V. Boston, Ways V. Bougton (Lady") See Broughton ■ V. Boughey, Copyholds V. Brewers' C/ompany, Copyholds V. Brighton Gas Co., Interest in Land V. Bristol Dock Co., Right to Water V. Broughton or Boughton, Officers 569 V. Brown, Mines ■ V. Buccleugh (Duch.), Manors ■ V. Buckcridge, Ways V. Burdct, Waters V. Burrel, Offices V. Butler, Franchises V. Cant. (Archbp.), Advowsons V. Cardington, Interest in Land ■ V. Carlisle (May.), Franchises V. Carter, Franchises V. Catherine Hall (Master,) Fran- chises V. Catherington, Mortgage V. Chalk, Franchises V. Chester (Bp.), Advowsons , Franchises 722 • V. Chipping Norton (Inh.), Fran- chises V. Churchill, Common V. Cluworth, Right of Way V. Goggan, Copyholds . V. Collett, Estate at Will • V. Cotterell, Franchises • V. Courtenay, Franchises V. Croke, Franchises V. Crundcn, Waters ■ V. Daceombc, Trusts • V. Darbyshire, Franchises - V. Davis, Houses , Franchises 110 1390 101 910 722 724 715 390 83 715 648 642 927 597 725 454 715 134 908 718 102 909 908 83 432 582 101 88 102 199 531 679 121 83 706 706 721 2241 717 113 724 705 310 372 908 1547 694 699 699 107 1728 650 8J 648 R. Dccaux,Rent § 200 Dersingham, Common 310 Dickenson, Franchises 654 Doncaster (May.), Franchises 701.717 Durham, Manors Franchises Eastbourne, Estate for Years Ecclcsficld (lull.), Ways -, Franchises Ellis, Waters , Tithes , Franchises Ellison, Houses Ely, Franchises Essex (Com. Sew.), Waters Evans, Offices Eyre, Interest in Land Estate for Years - V. - V. V. V. V. V. V. V. V. Flceknow, Waj's Gardiner, Franchises Genge, Franchises Gilbert, Francliises Goudgc, Franchises Great Farringdon (Inh.), Cur , tesy Grew, Franchises Grimes, Franchises Hadlow, Ancient Demesne Hammond, Waj's Harrison, Franchises Harrow (Inh.), Easements Hastings, Franchises Hatfiold, Way , Right of Way Havering-atte-Bower, Fran- 88 722 1443 102 712 108 134 715 89 723 113 585 83 1465 103 711 649 646 648 1079 677 714 932 102 647 512 631 102 390 chises Hawkins, Franchises Hedges, Fixtures Ilendon, Copyholds Hermitage, Common Hilliardsden, Ways Hodgson, Estate lor Years Hodnett (Inh.), Dower Holland, Copj'holds Uses Hornsey, Ways Hudson, Prescription Ipswich (Bailiffs, &c.), Jennings, Franchises Jobling, Estnte at Will Jolliffe, Franchises Kemp, Offices -, Remainders 631 718 23 782 346 102 1392 1123 831. 861 1609 102 2421 Offices 578. 715 647 1547 647 553 2327 134 648 731 Kimbolton, Tithes King, Francliises Kingsmill, Francliises Knollys or Knowles, Dignities 602. 618 Larwood, Franchises liairdon (Inh.), Uses Lcnthall, Offices Limehouse, Ways Lincoln (Bp.), Advowsons Franchises V. Liverpool (May.), Francliises 718 1636 563. 567 102 122 724 717 liv TABLE OF CASES. Offi. R, V. Lloyd, Ways — V. Lucas, Copyholds — V. Machynlleth, Ways — V. Manlove, Offices — V. Marches (President, &c.). cers — V. Marsden, Franchises — V. Medhurst (Bor.), Copyholds — V. Mein, Offices — V. Mersey &c. Nav. Co., Waters — V. Miller, Franchises — V. Milton, Waters — V. Monday, Franchises — V. Morgan, Franchises — V. Morris, Franchises — V. Newsham, Franchises — V. Northumberland, (E.) Mines — V. Airesford, Waters — V. Otlcy, Fixtures , Mills 102, 103 9 102 582 679 V. Parrott, Houses V. Parry, Franchises ■ V. Pattison, Offices • V. Pcrgam, Offices ■ V. Pilkinffton, Franchises • V. Pitt, Mines • V. Pohnan, Offices ■ V. Portington, (Lady) Trusts ■ V. Rennett, Copyholds • V. Richardson, Franchises 701 - V. Rigge, Copyholds ■ V. Rippon, Franchises ■ V. Rolfe, Francliises ■ V. Rooks, Offices • V. Rochdale Wat. W. Co, Interest in Land • V. Roupell, Francliises • V. St. Benedict, Ways ■ V. St. Giles', Wavs ■ V. St. JoJin's, (Coll.) Franchises • V. Saintiff, Ways • V. Scanrinionden,Uscs ■ V. Severn Rail. Co., Wavs Riglit of Way Sheffield, Waj-s Slicllcy, Copyholds Slicplicrd, Offices Shrewsbury, Franchises Skinner, Ways Smith, Trusts Snowdcn, Estate for Years Stafford, (M.) Copyholds Stanton, Franchises Staverton, Copyliolds Stevens, Franchises Stone, Estate for Years Stoughton, Ways Strafford, Advowsons Strangeways, Franchises Stubbs, Offices Sutton, Francliises Tewksbury, Commons , Common 67G, Theodorick, Franchises Thorncborough, Advowsons Tippet, Right of Way Topping, Estate for Years 569 ,695 908 597 109 714 109 714 630 714 714 99 11 22 93 89 718 589 560 713 98 588 1768 908 .716 910 713 677 578 83 646 103 102 722 102 1635 192 398 102 910 597 716 102 1748 1465 908 631 833 648 1306 102 121 716 557 .715 94 310 716 121 383 1511 R. V. Tower, Copyholds — V. Trafford, Right to Water - V. Trent Nav. Co., Interest in Land — V. Trinity House, Waters — V. Trucbody, Franchises — V. Turner, Houses , Tithes V. Varlo, Franchises V. Vaughan, Offices V. Wardc, Ways V. Warkwortli, (Inh.) Common V. Water-Eaton, Copyholds V. Watson, Commons , Common §910 420 83 105 717 89 134 714 588 103 296 908 94 310 578 101 677 431 2461 1975 94 873. 908 2.307 2474 908 — V. Windliam, Franchises 722 — V. Wistow, Tithes 134 — V. Worcester, Franchises 725 — V. Wright, Sewers 113,354 — V. Wyatt, Franchises 648 — V. Wyndham, Franchises 711 — V. Wyvil, Common 354 — V. Yarborough, Waters 105 — V. Yarton, Ways 102 — V. York, (Archbp.) Advowsons 113 — V. Yorksliire, (W. R. Just.) Right of Way 389 Reynel's case, Offices 532 , Dignities 610 Reynel's case. Estate for Years 1464 Reyncll v. Cliampcrnoon, Common 359 1662 — V. Wells, (Corp.) Offices — V. Woodland, Mines — V. Wheeler, Franchises — V. Wharton, Right to Water — V. Wliite, Nuisance — v. Whitaker, Powers — v. Whixlcy, Commons — V. Willcs, Copyliolds — V. Williams, Joint-tenancy — V. Wilson, Entry , Copyholds V. Long, Uses Reynolds or Reignolds v. Buckle, Rent 204 V. Clerk or Clarke, Right to Water 418. 433 375 1717 899 1969 351 875 1775 1246 258 958 I V. Edwards, Right of Way iRice V. Langford, Trusts Rich V. Barker, Copyholds V. Beaumont, Powers Richards v. Noble, Common V. Seley, Copyholds Richardson v. Chapman, Trusts V. Elphinstone, Jointure V. Hall, Rent V. Hood, Fee Simple V. Kenset, Customary Es- tates V. Langridge, Estate at Will V. Sydenham, Estate for Years Richmond and Butcher's case. Rent Riddel v. Jenncr, Customary Estates Rider v. Smith, Right of Way V. Wager, Assets Ridges v. Morrison, Assets Ridley v. Pownell or Founell, Offices 2358 154G ]293 164 2365 378 45 58 543 TABLE OF CASES. Iv Ridout V. Pain, Fee Simple Rigden v. Vallicr, Uses , Trusts § 9G] 1660 1633. 1812 Right V. Cuthell, Estate for Years 1521 , Tenancy from Year to Year -, Joint-tenancy V. Darby, Estate for Years , Tenancy from Year to Year V. Proctor, Estate for Years V. Smith, Uses , Trusts 1589 2309 1522 V. Tliomas, Rent Ripley v. Waterworth, Assets 1570 1287 1629 1829 176 33 Land and Money 69 • , Life Estate , Trusts Risely v. Royle, Estate at Will Ritch V. Sanders, Tithes Rives V. Rives, Life Estate Rivet V. Dowe, Copyholds Rivet's case. Copyholds , Trusts Rivett V. Godson, Rent Riviere v. Bower, Right to Light, &c. Roach v. Wadham, Powers Roadley v. Dixon, Dower Roberts v. Barker, Estate for Years ■ V. Davy, Mines v. Dixwell, Curtesy , Powers , Trusts • V. Foster, Ancient Demesne — s V. Jackson, Rent V. Carr, Ways V. Kingsley, Right of Way ■ , Trusts V. Llo}'d, Trusts V. Macord, Rigiit to Light, &c. V. Smith, Dower V. Tunstall, Trusts 1051 1794 1546 194 1038 776 782 1881 152 467 2053 1196 1475 99 1107 2048 1806 936 238 102 368 1810 1197 447 1197 1955 Robertson v. St. John, Estate for Years 1293 1120 2062 34 1809 2010ffl Robins v. Crutchley, Dower Robinson v. Dusgale, Powers V. Gee, Assets V. Hardcastlc, Trusts , Powers 198. 227 Roe V. Daw, Fee Simple — V. Doe, Tenancy from Year to Year — V. Dunt, Fee Simple , Powers — V. Gallier, Estate for Years — V. Grew, Estate Tail — V. Griffiths, Copyliolds — V. Harrison, Estate for Years — V. Hayley, Estate for Years — V. Hutton, Customary Estates — V. Jefiery, Estate Tail , Customary Estates — V. Lccs, Tenancy from Year to , Tonge, Assets AdvQwsons I ■ V. Hoffman, Rent - V. Nahon, Estate for Years 1430 ■ V. Pett, Trusts 1906 V. Robinson, Estate Tail 983 • V. Taylor, Land and Money 72 , Trusts 1787fl 33 126 2153 2106 1810 849 197 266 921 V. Wharroy, Estates oh. Con- dition Roche, In re. Powers Rochford v. Fitzmaurice, Trusts Rockey v. Muggins, Copyholds Rockinorham (Ld.) v. Oxenden or Pen- rice, Rent 13. 165. 195 Rodham v. Berry, Annuity Roe V. Briggs, Customary Freeholds Year — V. Mitten, Trusts — V. Pierce, Franchises , Tenancy from Year to Year — V. Popham, Uses — V. Pridcaux, Estate for Years , Tenancy from Year to Year § 960 1577 955 2059a 1455 986 907 1507 1521 2371 981 2357 1565 1813 704 1585 1642 1368 — V. 1569 1840 1509 1549 1395 921 Reade, Trusts Sales, Estate for Years Strcat, Estate at Will Summerset, Estate for Years Vernons Customary Freeholds W^ard, Tenancy from Year to Year 1580 W^iggs, Tenancy from Year to Year 1592 York, (Archbp.) Rent 175 , Estate for Years 1391.1497 Rogers V. Berkmire, Rent V. Brook, Right to Pews V. Jones, ( "opyliolds V. Marshall, Copyholds V. Pitcher, Rent Entry V. Reade, Trusts V. Rogers, Trusts V. Tranmer, Uses V. Vesey, Trusts V. Wynn, Commons Roger's case. Copyholds Rolfc V. Biidder, Trusts Rolfe V, Rolfc, Right to Water Roll V. Osborn, Assets , Uses V. Roll, Heir Rome V. Young, Assets Romilly v. James, Estate Tail Rook V. Worth, Trusts Rookc V. Clcland, Assets V. Denny, Franchises V. Rooke, Powers Roper V. Bunn'ord, Rent V. Lloyd, Rent Roscarrick v. Barton, Mortgage Rose V. Bartlett, Land V. Reynolds, Jointure Rosewell. See Roswell. Ross V. Aldwick, Remainders V. Ross, Estate Tail , Trusts 245 484 910 918 198 2474 1935 1792 1077 1883 321 861 1749 441 33 1663 81 54 981 1762 35 674 2083 19 G 211 2283 86 1225 2329 1007 1760 1 VI TABLE OF CASES. Rosse's case, Life Estate Kossiter v. Walsh, Powers Roswell's case, Copyholds Ros -, Right to swell or Rosewell v. Prior, Right to Water 441 Light, Slc. 466 , Nuisance 2464 Rous and Artois' case, Copyholds 822 — , Estate at Suffer- ance 1597 Rouse V. Rarker, Commons 95 , Copyholds 915 Routledge v. Dorrill, Powers 2048 § 1 020 1 Sadgrove v. Kirby, Common 2096 Sadler v. Hobbs, Trusts 913|Saffery v. Elgood, Estate for Years Saffyn's case, Estate for Years Rowdcu or Royden v. Malster or Moul- ster. Fee Simple 953 , Uses, 1663 , Customary Es- tates 2355 Rowe V. Brenton, Copyholds 855 V. Chichester, Trusts 1802 V. Grenfel, Mines 98 V. Power, Mines 98 , Dower 1144 V. Shilson, Ways 102 V. Wood, Mortgage 2232 Row ell V. Walley, Estate for Years 1440 Rowlcs and Mason, Franchises 639 Rowley V. Adams, Trusts 1881 Rubery v. Jervoise, Estate for Years 1526 Rubery v. Stephens, Rent 207 Ruddc V. Tucker, Joint-tenancy 1309 Rugby (Char.) v. Merry weather. Ways 102 Rumbold V. Rumbold, Dower 1200 Rumney (Corp.) case, Waters 105 Rumncy v. Eve, Copyholds Rumsey v. Hayward, Copyholds V. Rawson, Commons , Estate for Years Ruscombc v. Here, Estate for Years Rushden's case. Rent Russell and Broker's case, Common V. Smythies, Trusts V. Darwin, Estate for Years • V. Russell, Mortgage V. Smithers, Mortgage Sagitary v. Hyde, Assets St. Auby's case. Rent St. Cross (Master, &c.) v. Howard, Rent-charge St. George v. St. George, Uses St. George's Han. Sq. (Rector) v. Stewart, Churches St. John's (Coll. Ox.) v. Murcot, Rent St. John's (Coll. Ox.) v. Toddington, Franchises St. John's (Coll. Cam.) case, Fran- chises St. Luke's V. St. Leonard's, Commons St. Paul V. Dudley and Ward, (Vise.) Copyholds St. Paul's (Warden, &c.) v. Dean, Tithes , Offices §322 1916 1267 1272. 1480 51 180 Sale V. Moore, (not Moon) Trusts Salford's case, Fee Simple Salisbury v. Bagott, Trusts V. Marshall, Rent , Estate for Years (E.) V, Lamb, Powers (Bp.) V, Philips, Advow- sons , Coparce- nary Salisbury's (Bp.) case. Waste (Dean, &c.) case. Common 905 'Salmon v. Swann, Estate for Years 902 276 1463 1440 214 298 1794 1527 2203 2232 1096 936 Salter v. Butler, Rent , Life Estate Russel's case. Uses Rust V. Roe, Ancient Demesne Rutland (E.) v. Bowler, Right to Water 400 V. Greene, Copyholds 854 Rutland's (Countess) case. Mills 93 . , Dignities 605. 622 , Copy- holds 854 Rutland v. Doe, Powers 2099 Ryall V. Ryall, Trusts 1765. 1785 Ryder v. Bentham, Right to Light, &c. 477 V. Bickerton, Trusts 1952 Ryley v. Hicks, Estate for Years 1277 V. Grosvenor, Estate for Years Saltern v. Saltern, Life Estate , Estate for Years Salvin v. Thornton, Estate Tail , Trusts Sarnmer and Force, Copyholds Sammc's case. Rent ,Uses Sammes and Payne's case. Curtesy V. Rickman, Trusts Sampson v. Patteson, Mortgage Samwell v. Wake, Assets Sanders v. Franks, Powers Sanderson v. Harrison or Hanson, 151 1684 90 200 721 726 95 870 140 568 1773 965 1799 206 1332 2008 122 2299 2470 271 1488 180 1053 1451 1056 1451 1007 1720 843 166 1647 1099 1930 2202a 49 2001 Rent Sande3's v. Oliff, Common Right of W^ay Sandford v. Irby, Trusts V. Keeeh, Trusts V. Stevens, Copyholds Sacheverell v. Froggatt., Rent V. Porter, Commons Sackville v. Evans, Estate for Years 12 160 278 1458 Sandon v. Plooper, Mortgage Sands and Drury, Copyholds Sands v. Drury, Commons V. Hempston, Copyholds V. Nugee, Powers 171. 196 309 366 1831 1802 860 2232 834 83 761. 844 2107 Sandys (Ld.) v. Sibthorpe, Interest in Land 109 Sargent v. Reed, Waters 109 TABLE OF CASES. Ivii Sarth or Garth v. Blanfrey (Lady), Powers § 2101 Saruin's (Bp.) case, Offices 540 Saunder's case, Mines 99 , Dower 1205 Saunders v. Annesley, Life Estate 1043 V. Dehew, Jointure 1236 . , Trusts 1798 , Mortgage 2282 V. Freeman, Estate for Years 1500 V. Griffin, Estate for Years 1492 V. Mose, Right of Way 376 V. Newman, Right to Water 402, V. Ritch, Titlies V. Welch, Ancient Demesne Carroll or Carrill, Heir Savage v, Savage's case, Offices Saverne v. Smith, Estate for Years Savery v. Smith, Franchises , Ancient Demesne 422 134 924 80 576 1335 684 928 126 2269 1007 38 271. 339 1414 1305 287 Savil v. Savil, Advowsons Saville v. Saville, Mortgage Saville's case, Estate Tail Sawlcy V. Gower, Assets Sawyer's case, Common Say V. Barwick, Estate for Years Say V. Smith, Estate for Years Saye's case, Commons Sayer v. Pierse, Mines 101 Scamber v. Johnson, Commons 278 Scambler v. Walter, Franchises 556 Scarborough (E.) v. Hunter, Waters 108 (May.) V. Butler, Fran- chises 700 Scattergood v. Harrison, Trusts 1926 Scholes V. Hargreaves, Houses 89 , Common 270 Sclater v. Travel, Powers 1989 Scott v. Airy, Tithes 135 V. Fenhoullet, Trusts 1743 V. Scholey, Mortgage 2264 V. Scott, Estates on Condition 2141 V. Surman, Trusts 1947 Scounden v. Hawley, Trusts 1837 Scrafton v. Quincey, Powers 2027 Scratton v. Brown, Waters 105 Scrimpshire v. Scrimpshirc, Dower 1122 Scroggs V. Scroggs, Powers 1983a Scroop V. Scroop, Trusts 1787 Scrope's case, Powers 2074 Scudamore v. Scudamore, Land and Money 74 , Trusts 1 858 V. Stratton, Estate for Years 1532 Sculthorpe v. Burgess, Trusts 1777/; Seabourne v. Seabournc, Mortgage 2235 Scagood V. Hone, Franchises 633 V. Mcale, Estate for Years 1291 Seagrave v. Cirwaii, Trusts 1768 V. Seagrave, Jointure 1255 Scale V. Baxter, Estate Tail 977 Scaly V. Jago, Land and Money 66 Seaman v. Vawdry, Rlines 98 Seaward v. Wellock, Estate Tail 984 Sccly V. Richards, Estate for Years § 128G Seintley v. Bendtl, Mills 90 Selby V. Alston, Trusts 1957 — V. Robinson, Common 294 — V. Selby, Assets 54 Scllack V. Harris, Trusts 1768 Senhousc v. Christian, Ways 103 , Right of Way 366 v. Earl, Jointure 1 248 , Trusts 1801 Sergeants' (The) case. Tithes 135 Sergeson, Ii\ parte. Trusts 1840 v. Sealey, Land and Money 78 , Estate Tail 1009 , Jointure 1237 , Powers 2011 Seton V. Slade, Mortgage 2262 Seven. Sec Swin. Sevier v. Greenway, Mortgage Seymour's case. Fee Simple Seymour v. Bennet, Advowsons , Offices 2202 950 120 563 1215 Seys V. Price, Jointure Shadwcll V. Hutchinson, Right to Light, &c. 1473 Shaflo V. Sliafto, Assets 48 Shakespear v. Peppin, Common 320 Shannon v. Bradstrect, Rent 175 , Estate for Years 1369 , Powers 1897 Shapland v. Smith, Trusts 1707. 1720. 1831 Sharington v. Strotton, Uses 1633 Sharland v. Baker, Fee Simple 959 Sharp V. Sharp, Trusts 1846 , Powers 2106 Shaw V. Rhodes, Trusts 1716 V. Taylor, Copyholds 814 V. Weigh, Trusts 1714. 1831 Sheddon v. Goodrich, Trusts 1794 Sheen v. Rickie, Fixtures 23 Sheffield V. Orrery (Ld.), Estate Tail 981 V. Ratclitfe, Advowsons 124 Shelburn v. Biddulph, Estate Tail 1013 , Estate for Years 1327 Sheldoe v. Barnes, Trusts 1783 Shell V. Patterson, Fee Simple 961 Shelly V. Edlin, Fee Simple 963 Shelly's case. Estate Tail 987 , Estate for Years 1405 , Uses 1617 •, Reversions 2350 Siieppard or Shepherd v. Doolan, Estate for Years 1526 V. Gibbons, Trusts 1831 V. Gosnold, Franchises G62 V. Mouls, Trusts 1949 V. Twogood, Trusts 1948 Sherrard v. Harborough (Ld.), Ad- vowsons 122 , Trusts 1787a V. Sherrard, Rent 220 Shctelworth v. Neville, Assets 45 !Shii)brook, v. Hinchinbrook, Trusts 1916 Shirley v. Ferrers (Ld.), Powers 2055 Iviii TABLE OF CASES. Shirley v. Newman, Tenancy from Year to Year § 1570. Shopland or Sliophne v. Rydler or Roydler, &e., Rent Copyholds 1596 030 819 1392 437 67 1614 1764 Shove V. Pincke, Powers 2076 Shrapnel v. Vernon, Trusts 1732 Slirewsbury's (Earl) case, Offices 546. 595 : , Estates on Condition 2146 , Estate for Years Short V. Taylor, Right to Water V. Wood, Land and Money Shorbridge v. Lamplugh, Uses , Trusts Smallwood v. Coventry (Bp.), Estate for Years " § 1347 Smalman v. Agburrough, Estate for Years '^ 1353 Smartle v. Penhallow, Copyholds 787. 814 , Customary Estates Smith's case, Right to Water Franchises Smith V. Ano-ell, Assets Reversions -, Remainders Shrewsbiu-y v, Shrewsbury, Estate Tail Shury, Surry, or Sury v. Pigott, Right of Way , Right to Water Sidmouth v. Sidmouth, Trusts Sidney Barony, Dignities ■ V. Sidney, Curtesy . , Jointm-e Silk V. Prime, Assets . Trusts 2327 1008 384 425 1786 615 1115 1255 42 1724 86 1659 Silly V. Silly, Land Silvester or Sylvester v. Wilson, Uses , Trusts 1708. 1829 Simmons v. Norton, Waste 2465 Simpkin v. Ashurst, Estate at Suf- ferance 1598, Simpson v. Bithwood, Franchises 661 j , Jointure 1235 V. Gutteridge, Estate for Years ^ 1395 V. Hartopp, Rent 238 V. Lcwthwaite, Right of Way 366 V. Turner, Jointure, 1264 Sims V. Bennet, Tithes 134 Simson v. Jones, Trusts 1886 Skele and Arnold, Life Estate 1046 Skidmore v. Booth, Rent 246 Skinner, Ex parte. Estate for Years 1454 Skipworth or Skipwith v. Green, Es- tate for Years 1393 Skirme v. Meyrick, Mortgage 2270 i Skroggs v. Co'ldshil, Offices 538 . Slater V. Edwards, Powers 1963 { Slater v. Slater, Dower 1200 Sleigh v. Bateman, Estate for Years 1496 Slingsby's case. Offices 594 Sloan v. Cadogan, Powers 2007 Sloper V. Allan, Common 350 V. Gibson, Copyholds 905 Slowrnan v. West, Right of Way 364 ■V. Arden, Ancient Demesne ■V. Ashton, Powers ■ V. Camelford (Ld.), Powers ■ V. Chichester, Mortgage • V. Claxton, Land and Money Trusts -V.Clay, Trusts -V. Coffin, Trusts - V. Cooke, Estate Tail - V. Doe, Estate for Years Powers ■ V. Farnaby, Remainders • V. Feverell, Common 2354 432 727 So 2351 939 2606 2047 2237 75 1794 1730, 1955 1787a 1014 1375 2097 2327 276.316 ■V. Frampton, Ancient Demesne 937 , Gatewood, Franchises . Goodwin, Right to Water . Hibbard, Trusts Mortgage ■v. - V. King, Trustf Leigh, Powers Mapleback, Rent Mil ward, Common Morris, Prescription Parker, Assets Parker, Reversions Parkhurst, Estates on Con dition , Remainders , Reversions Pearce or Pierce, Rent 684 435 1797 2207fl 1826 1977 151 332 2419 35 2351 Raleigh, Rent V. Renard, Copyholds v. Risley, Uses V. Roe, Ancient Demesne V. Russell, Rent V. St. Paul's (Dean, &c.), Copy holds V. Smith, Land and Money Manors 2194 2331 2351 196 205 821. 878 1634 937 240 - V. Stapleton, Advowsons - V. Tindal, Fee Simple - V. Trinde, Estate for Years - V. Walton, Rent - V. Warren, Uses - V. Wheeler, C'opyholds , Trusts , Powers Sly and Mordaunt's case. Right to Water 418 Small V. Allen, Fee Simple 959 V. Wing, Powers 2086 Smallcombe v. Cross, Estate for Years 1476 Smallpiece v. Evans, Estate for Years 1509 I V. Wilson, Estate for Years j V. Wyatt, Tithes Smith and Lane's case, Copyholds I Smyth or Smy the. Ex parte. Rent 918 78 S8 126 959 193 832 1677 832 1845 1964 127» 134 865 220. 229 Smyth's case. Franchises iSnag V. Fox, Coi)y holds Snagg's case. Trusts Snivthe, Trusts Waste 1884 2470 727 793 1822 TABLE OF CASES. lix Snapc V. Turton, Powers Sneed v. Culpepper, Assets V, Sneed, Powers Snelson v. Corbet, Assets Sneyd v. Sneyd, Copyholds , Dower Snow V. Cutler, Estate for Years V. Firebrass, Otiices Snowdon v. Dales, Trusts Soady v. Wilson, Tithes Soane v. Ireland, ^lanors Solby V. Robinson, Common Solly V. Whitfield, Jointure Some V. Barwish, Rig-ht to Water , Nuisance Somerset (D.) v. France, Copyholds -, Customary Freeholds Somcrvillc v. Chapman, Estate for Years Sonday's case. Estate Tail Soulsby V. Neirinff, Rent , Tenancy from Year to Year Soutliall V. Leadbetter, Rent Southampton (Ld.) v. Hertford (M.), Trusts Southby V. Stonehouse, Estate Tail , Trusts Southcot V. Stowell, Uses Soutliern v. Bellasis, Rent Southwell College Church (Chapter, &,c.) V. Lincoln (Bp.), Estate for Years V. Ward, Powers Spalding's case. Estate Tail Sparke's case, Copyholds Sparks v. Smith, Estate for Years Sparrey's case. Curtesy Sparrow v. Hawkes, Tenancy from Year to Year V. Reynolds, Offices Speake v. Speake, Jointure Speaker v. Styant, Common Spear v. Buckner, Fee Simple V. Crawtcr, Commons , Copyholds Spencer v. Clarke, Fee Simple V. Marlborough (D.), Uses Spink V. Lewis, Land and Money , Trusts Spooner v. Day, Commons Sprange v. Barnard, Trusts Spring V. Csesar, Uses Sprint V. Hicks, Rent Sproule V. Pryor, Assets Spurgeon v. Collier, Trusts , IMortgage Spurrier v. Hancock, Trusts Spycr V. Spyer, Commons Spyve V. Topham, Uses Squire v. Campbell, Right to Light, &c. Squire v. Compton, Trusts V. -Mayer, Fixtures Stabhack v. Lcat, Mortgage Stables V. ]\Ielton, Common Staccy V. Elpp, Trusts 1961 5:2 2006 54 844 1152 U-2[) 538 1715 134 88 294 1258 441 2464 778 921 1530 984 256 1596 155 1716 981 193G 1671 194 Stackpoole v. Stackpoole, Trusts Stackhouse v. Barnston, Powers Stacy's or Stacie's case, Copyholds § 1923 2017 848. 914 Stafford (IMay.), v. Bolton, Advowsons (E.) V. Buckley, Interest in Land , Fee Simple . Estate Tail V. Hamston, Waters Stailton v. Stailton, Estate Tail Stamford (E.) v. Hobart, Trusts Stammers v. Dixon, Copyholds Stampe v. Burgess, Common V. Clinton, Advowsons Stamper v. Pickering, Dower Standen v. Standen, Assets , Trusts Powers Standred v. Shoreditch, Common Stanfield v. Habergham, Trusts Stanhope v. Verncy, Trusts Staniforth v. Fox, Estate for Years Stanley v. Agnew, Estate for Years V. Lennard, Trusts V. Stanley, Uses V. White, Woods, &c. Stansell v. Jollaud, Easements Stansiield v. Habergham, Customary Estates Stanton v. Barnes, Copyholds 122 83 953 981 113 1007 1827 634 330 126 1201 49 1840 2036 271 17^7a 1746 12S4 1288 1707 1667 96 115 2359 ^37 1335 2104 979 905 1386 1092 1596 587 1230 331 959 95 915 953 1686 721 1789 329 1774 1681 209 56 1920 2262 1761 95 1673 448 1738 19' 22026 273 1S42 V. Hall, Trusts -, Customary Estates 2358 1751 366 49 1016 441 1787a 1437 1106 Steed V. Newdigate, Trusts Steel V. Pricket, Manors Ways Staple V. Haydon, Right of Way Stapleton v. Colville, Assets Stapleton's case. Estate Tail Star V. Rookesby, Right to Water Starkey v. Brooke, Trusts Stead V. Creagh, Estate for Life Steadman v. Pulling, Curtesy Stebbiuo- v. Gosnell or Gosnal, Com- mon 296 _ . , Copyholds 850 Stedman v. Page or Bates, Rent 226 Coparcenary 2296 1759 88 102 2459 1613 1489 1635 127 1391 1243 8 127 921 1479 9G0 873 214 1373 for Steele v. Houghton, Trespass Stephens' case. Uses Stephens v. Bridges, Estate Years Stephens v. Brittcl or Brittredffe, Uses 1633, V. Clark, Next Avoidance V. Elliot, Estate for Years V. Gaule, Jointiu-e V. Wall, Chattels Real Next Avoidance Stephenson v. Hill, Customary Free- holds Sterne, Ex Parte, Estate for Years Stevens v. Snelling, Fee Simple Stevens' case. Copyholds Stevenson v. Lambard (not Lambert or Lombard,") Rent , Estate for Years Ix TABLE OF CASES. Stevenson v. WoocI, Rent Steverton v. Scroggs, Franchises Steward v. Lombe, Fixtures , Mills §198 655 24 93 1766.1768 1914 297. 359 1978 Stiekland v. Aldridge,Trusts Stickney v. Sevvell, Trusts Stile V. Butts, Common V. Tomson, Powers Stileman v. Ashdown, Trusts 1787 Stirling v. Fenlington, Curtesy 1080 , Tenancy in Common 2317 Stockbridgc's case, Jointure 1262 Stockman v. Hampton, Uses 1662 Stocks or Storks v. Booth, Right to Pews 482. 495 Stoke V. Sykes, Advowsons 126 Stokes V. Cooper, Rent 205 Stone V. Evans, Mortgage 2227 Stone V. Cartright, Right to Light, &c. 474 V. Teid, Life Estate 1038 V. Wakeman, Right of Way 363. 372 Stone's case, Franchises 642 Stonehouse v, Evelyn, Land and Money , Trusts Stonely v. Bracebrids^e, Uses Stonesby v. Mussenden, Common Stoner v. Curwen, Trusts Storey v. Robinson, Rent Storks V. Booth. See Stocks. Stott V. Stott, Houses , Right of Way Stoughton V. Leigh, Mines , Dower 72 1787a 1685 280 1809 238 89 363. 379 99 1135. 1205 Strachy v. Francis, Churches 91 Strafford (E.) v. Buckley, Annuity 263 V. Powell. See Strafford. V. Wentworth (Lady, ) Rent 13. Strahan v. Sutton, Dower Strangeways v. Newton, Uses Stratford (not Stafford) v. Powell, Trusts 1814. Stratton v. Best, Uses , Joint-Tenancy Streatfield v. Streatfield, Trusts Strickland v. Maxwell, Estate for ^ 194 1195 1698 Years Strode v. Blackbourne, Trusts Strong v. Teate, Trusts Stroud v. Rogers, Rent Stuart V. Bute (M.,) Land and Money Stubbs V. Flower, Franchises V. Sargon, Trusts Stukcley v. Butler, Trees Sturch V. Young, Mortgage Sturgis V. Champneys, Mortgage Styant v. Staker, Common , Copyholds Styles V. Wardle, Estate for Years Suffolk's (D.) case. Copyholds Sullivan v. Bishop, Rent Surey v. Brown, Rent 1818 1666 2304 1810 1278 1899 1840 258 78 653 1777a. 1805 25 2321 2281 344 899 1303 828 255 163 Sussex (Earl) v. Temple, Joint-Ten- ancy § 2304 Sutherland (C.) v. Northmorc or Ross- more, Powers 1990. 2004 Sutton v. Champlin, Life Estate 1039 v. Montfort (Ld.,) Right to Light, &c. 478 Sutton v. Rolfc, Dower 1131 , Tenancy in Com- mon 2318a Sutton Colefield's case. Trusts 1800 Sutton's (Hospital) case, Franchises 698. 720 Swaine V. Burton, Uses 1617 V. Falconer, Interest in Land 83 Swan V. Gateland, Tenures 744 V. Morgan, Franchises 654 Swan's case. Franchises 671 Swanley v. Lime (Corp.,) Waters 113 Swann v. Falmouth (E.,) Rent 246 Swannock v. Lyford, Dower 1174 Swansborongh v. Coventry, Right to Light, &.C. 469 S Wayne's ease. Common 296. 340 , Copyholds 843 Sweeper v. Randal, Estate for Years 1390 Sweet V. Southcote, Trusts 1799 Sweetapple v. Bindon, Land and Money 63 , Curtesy 1106 , Trusts 1815 , Customary Estates 2369 Sweton or Sweetnam v. Cushe, Estate for Years 1504 Swin or Seven v. Mihil, Rent 196 Swincrton v. Miller, Rent 216 Sydenham v. Capps, Estate for Years 1318 Sym's case. Estate for Years 433 Symance v. Taltam, Trusts 1913 Symes v. Pennant, Copyholds 830 Symms v. Ruttur, Land and Money 61 Symonds v. Cudniore, Estate for Years 1326 , Descent 2492 Tabor v. Grovcr, Mortgage Taggart v. Taggart, Trusts Tait V. Northwich, Assets Talbot V. Braddill, Mortgage V. Woodhouse, Life Estate Talbot's case. Rent , Copyholds Talcntine v. Denton, Estate for Years Tanfield v. Rogers, Estate for Years Tanistry case, Tenures Tankerville (E.) v. Fawcett, Assets , V. Wingfield, Pow- ers Tanner and Hnhbs' case. Common Tapner v. Mcrlot, Uses Tarback v. Marbury, Powers Tardiff v. Scrugham, Mortgage Tarrant v. Hellier, Copyholds v. Thompson, Fixtures II 1812 49 2273 1045 203 803 1461 1324 755 48 2096 331 1665 20686 2207a 883 24 TADLE OF CASES. Ixi Targus v. Pii|rct (not Paget,) Trusts (j 1814 Tarbuiy v. Elcliin, ^Mortgage Taster v. Marriot, Trusts Tattersell's case, Franchises Taunton v. Costar, Entry Taverner and Cromwell's case, Copy- holds Tawney v. Crowtlier, Trusta Taylcrson v. Peters, Rent Taylor v. Bath, (May.,) Franchises V. Colt, Entry V. Dulwich (Coll.,) Fran- chises — — , Estate for Years v.Glanville, Trusts V. Hooc, Copyholds V. Horde, Estate tor Years • V. James, Francliises ■ V. Lanyon, Rent ■ V. Philips, Customary Estates • V. Shaw, Customary Estates - V. Stibbcrt, Trusts , ]\Iortorage . V. Taylor, Trusts 1786, 1802 6G5 2474 7G6 1768 242 718 2474 705 1530 1889 916 1375 G65 290 2360 2355 1798 2257 1826 Thompson v. Thompson, Rent V. Townc, Powers '1 hompson's case. Estate lor Years Thorhy v. Yeats, Trusts I'horiiborough v. Baker, § 196 20C2 1.322 18iJ0 Morfgaore Thorndike v. Allinton, Rent Thome v. Rolie, Dower V. Thorne, Powers and Thornhill v. Evans, Mortgage Tiiornton v. Adams, Rent V. Hawky, Land Money Thorpe v. Thorpe, Mortgage Throckmorton v. Tracy, Next Avoid- ance , Franchises 11. 1240a 172 1125 1992 2222 244 Tlirogmorton v. Wliclpdale, Tenancy from Year to Year Thruxton v. Att.-Gen., Assets , Powers Thunder v. Belcher, Estate for Years , Tenancy from V. Waters, Easements, V. Wheeler, Trusts -, Mortgage V. Whitehead, Right of Way, Year to Year 525'Thursfield and Jones, Franchises 1822 iThwaites v. Dye, Powers 2238|Thynne v.Cary, Trusts 370 V. Thynn, Trusts IS'SS. 193llTidd v. Lister, Trusts Tebbs V. Carpenter, Trusts Tempest v. Rawlings, Estate for Years i Tiffin v. Tiffin, Assets 12881 .Trusts 1887 1216 1252 \ Tenant v. Brown, Powers v. Goldwin, Easements , Nuisance Tcnny v. Agar, Estate Tail Terry v. Terry, Trusts Tew V. Wintcrton, Dower , Jointure Tewksburj', (Bailitfs, &c.) v. Brick- nell, Franchises ' 694 Thakrah or Thakray v. Seymour, Right of Way 389 Thayer v. Thayer, Powers 2002 Thecbridge v. Kilburn, Chattels Real 7 Thelluson v. Woodford, Election 2426 Thetford's (May.) case, Franchises 713 Thin or Thinne v. Chomlcy, Rent 155 V. Thinne, Manors 88 Thomas v. Britnell, Powers 2116 V. Cook, Rent 258 V. Nichols, Common 350 V. Porter, Copyholds 91G V. Thomas. Right to Water 406 ■ , Tenancy from Year to Year 1582 Thomasin v. Mackworth, Tenancy at Sufferance 1597 Thompson v. Dixon, Land and Money 78 . V. Lavkl)', Uses 1661 ■ v. Leach, Remainders 2337 V. Maberly, Tenancy from Year to Year 1578 V. Mashiter, Rent 239 v. Nelson, Dower 1195 ■ V. Simpson, Powers 2048 1978 i Tilbury v. Barbut, Estate Tail 528, Timbrel] v. Bullock, Rent 2464,Timswell v. Perkins, Heir 982 iTimmins v, Rowlinson, Rent , Estate Will — , Tenancy from 61 2264 127 704 572 40 1983 1398 1575 710 2048 1720 1769 1940 40 1741 982 211 82 256 at Year to Year Tinnery v. Fisher, Common Tinney v. Tinney, Dower , Jointure Tippen v. Grover, Estate for Years Tipping V. Cosin or Cosins, t^ses, 1641 Tisdale v. Essex, Estate for Years Titley v. Egerton, Mortgage Titus V. Perkins, Copyholds Toilet V. Toilet, Jointlire Tomkin or Tompkins v. Crocker, Fran- chises Tom kins. Trusts Tomkyns v. Piasent, Rent V. Willan, Fee Simple 1543 1565 275 1193 1220 1461 1648 1282 11 796 1237 Tomlin v. Fuller, Right of Way Tomlinson v. Brown, Right to Light, &c. V. Dighton, Powers Tonkins v. Ennis, Trusts Tooke v. Hastings, Jointure Toplis V. Grane, Rent Topping V. Piggot, Trusts Tott V. Ingram, Franchises Touch v. Rand, Mortgage 631 1833 193 963 378 474 1996 1793 1231 247 1913 641 2238 Ixii TABLE OF CASES. Tovey v. Pitcher, Rent Towel V. ( "ornisli, Copyholds Tower v. Rous, Assets Towers v. Davys, Jointure Townley v. Bid well. Land and Money V. Gibson, Mines , Copyholds Townsend v. Ash, Interest in Land V. Lawton, Trusts V. Townsend, Trusts V. Wilson, Trusts , Powers . V. Windham, Powers Townson v. Tickle, Dower 1 170. Tracey or Tracy v. Letiiulier, Re- mainders Tracey or Tracy v. Talbot, Rent Traftbrd v. Boelim, Land and Money Trusts V. Trafford, Trusts Treacle v. Coke, Rent Treasurer (Ld.) v. Barton, Rent Tredway v. Fotherlcy, Copyholds Treuicere v. Morrison, Rent Trent v. Hanning, Trusts Treport's case, liifc Estate Estate for Years Trcsham v. Lant, Estate for Years Trevillian v. Andrew, Estate at Suf- ferance Trcvivan v. Lawrence, Estate for Years Trevor v. Trevor, Uses , Trusts Trigg V. Payte, Common V. Turner, Common Trimmer v. Bayue, Assets , Trusts Trinity Coll. v. Browne, Copyliolds Tristram v. Baltinglass (Lady,) Estate for Years Tritton v. Foote, Estate for Years Trotter v. Blake, Copyliolds Troughton v. Troughton, Powers Trower v. Chadwick, Easements Trucman v. Walgliam, Ways Trulock V. Rigsby, Common V. Wliitc, Common Tubervill v. Tippers, Franchises Tucker v. Newman, Right to Water V. Thruxton, Mortgage v. Tucker, Trusts Tudor v. Scmyne, Trusts 1719. Tuffiiell V. Page, Fee Simple .^ , Trusts . , Customary Estates Tukeley (not Tuckeley) v. Hawkins, Francliises Tullet V. Armstrong, Trusts •Tullit V, Tullit, Trusts Turner's case. Estate for Years , Trusts Turner v. Allday, Rent v.'^Oano, Mortgage V. Hodges, Estate for Years , Estate at Will 205 912 49 1248 76 98 857 83 1913 1729 1850 1977 2055 1840 2333 242 67 1878 1818 205 209 780 207 1830 1034 1382 1296 1602 1423 1638 1809 351 305 54 1769 782 1371 1527 796 2057 505 102 276 326 633 443 2261 1865 17.53 958 1721 2302 633 1755 1762 1432 1753 192 11 1399 1545 Turner v. Jennings, Jointure V. Mcymott, Entry V. Richardson, Estate Years V. Richmond, Mortgage V. Smith, Tithes V. Turner, Annuity Turney v. Sturges, Dower Turnman v. Cooper, Estate Tail Turquand v. Knight, Trusts Turton v. Reignolds, Churches Turvill V. Aynsworth, Francliises Tweddel v. Tweddell Assets Tweedale v. Coventry, Assets Twiss V. Brazen-Nose Coll., Tithes Twyne's case, Powers Tyler v. Lake, Trusts Tylcy and Sud, Estate at Will Tylle v. Pierce, Powers Tyndal v. Toller, Franchises Tyndale v. Warrc, Assets Tyre v. Littleton, Copyholds Tyrrel's case. Uses Trusts for 1145 Tyrrill v. Hope, Trusts Tyrringham's case, C'ommon Tyrwhit v. Winnc, Mines Tyte V. WiUiams, Estate Tail Umble V. Fisher, Rent Underbill v. Kelsey, Copyholds. Underwood v. Stevens, Trusts V. Swain, Heir Uniackc, In re. Trusts Upton V. Ferrers (Ld.), Heir-looms Urch V. Walker, Trusts Urquhart v. King, Trusts Uthwaito V. Bryant, Fee Simple Uvedale v. Uvcdale, Powers U.xbridgc (Ld.), v. Staveland, Copyholds 770. 916 §1243 2474 1456 2274rt 136 263 , 1181 975 19.30 90 699 48 35 136 20686 1756 1556 1985 633 35 8G8 1656 1704 1822 270 98 982 194 902 1921. 1952 80 1846 16 1907 1907 958 1988 Valentine v. Denton, Rent V. Penny, Common Vandebende v. Jjcvingston, Trusts Vandenanker v. Desborough, Estate for Years V^anderzee v. Aclom, Powers Vane v. Bernard, (Ld.) Life Estate V. Fletcher, Heir Vane's case, Franchises Vaughan v. Atkins, Customary Free- holds V. Atwood, Franchises v. Burslcm, Trusts Vaux's (Ld.) case. Estate for Years Vauxhall Bridge Company, Ex parte, Fixtures Vcn V. Howell, Copyholds Verior v. Sandwicli. (May.) Offices Vcrney v. Verney, Life Estate Vernon v. Prior, Riglit of Way V. Vawdry, Trusts V. Vernon, Rent , Powers. 172 303 1948 1529 2049 1041 82 650 921 646 1818 1312 24 787 560 1038 372 1949 220 2009 TABLE OF CASES. Ixiii Vernon v. Vernon, Trusts Vernon's case, Dower , Jointure , Uses Veseye's (lA.) case, Dignities Vickers v. Cowel, Trusts Vigrass v. Binfield, Trusts Villa Real v. Gahvay, (Ld.) Dow- er , Election Villers v. Beaumont, Jointure , Uses V. Handley, Assets 1738. Villers v. Villers, Trusts Viner v. Vaughan, Mines Vickersterne v. Ebden, Waters Vizard v. Longden or Longdale, Joint- ure Voogt V. Winch, Waters Voogt V. Winch, Right to Water Vochcll V. Doncastell, Rent Vowles V. Miller, Common Wade V. Marsh, Rent V. Paget, Jointure , Powers Wagstaff V. Smith, Trusts 1750. V. WagstatF, Powers Wainwright v. Bendlowes, Assets Waite V. Whorwood, Trusts Wake V. Conyers, Copyholds V. Tinkler, Trusts V. Wake, Dower Wakefield v. Childs, Dower Wakefbrd's case. Copyholds Wakeford, In re. Powers Wakeman v. West, Right to Water Waldo or Waldoe v. Bartlett, Cus- tomary Estates V. Martin, Offices V. Waldo, Trusts Walker v. Denne, Land and !\Ioney V. Hammersley, Next Avoid- ance V. Jackson, Assets V. Meager, Assets V. Millar, Common V. Smallwood, Trusts V. Symonds, Trusts V. Walieman, Estate for Years V. Walker, Jointure V. Wetherell, Trusts Walker's case. Franchises Walker and Nevil's (not Leving's) case. Dower Wall V. Bright, Trusts V. Langlands, Fee Simple V. Thurborne, Powers Wallace v. King, Rent V. M'Larcn, Rent Waller v. Andrews, Rent V. Carapian, Estate for Years Wallis V. Harrison, Easements Walpole V. Conway, Powers 1771 1181 1211 1661 606 1783 1914 1199 2129 1219 1635 35 ,1830 100 109 1225 107 415 211 95 230 1237 2004 1829 2032 49 1947 915 1864 114 1208 864 2111 431 2366 588 1884 60 127 49 42 281 1878 1950 1370 1220 1888 726 1202 1840 961 2068rj 249 228 198 1270 523 2063 Walrond v. Pollard, Advowsons Walsall Y. Heath, Rent , Estate for Years Walter v. Ciiauner, Commons V. Hanger, Franchises V. Maunde, Land and Money V. Rumbold, Rent V. Sumner, Churches Walters v. Pfeil, Easements Walton V. Walton, Trusts Walton's case, Copyliolds Walwyn v. Courts, Trusts Wansborough v. Manton, Fixtures V. Audland, Trusts V. Cresswell, Waters , Common Ward V. Dettensam, Waste V. Dudley, Dower V. Knight, Franchises V. Lambert, LIses Ward V. Lant, Trusts V. Lenthal, Powers V. Shaw, Rent V. Tuddingham, Uses V. Walthers, Jointure Ward's case. Mills ■, Copyholds Wardle v. Hargreaves, Trusts Ware v. Polhill, Land and Money , Uses Trusts Waring v. Coventry, Trusts V. Dewberry, Rent V. Griffiths, Easements Warman v. Faithful, Estate for Years Warnstrey v. Tanficld, Trusts VV^arner, Ex parte. Mortgage Warrington v. Moseley, Ways Wartcr (not Waster) v. Hutchinson, Trusts V. Warter, Uses Warwick v. Noakes, Rent Washborn v. Downes, Trusts Waterman v. Smith, Powers V. Soper, Woods Wafers v. Weigall, Rent Wathcrall v. How ells. Waste Watkinson v. Man, Estate for Years Watson V. Brickwood, Assets V. Hemsworth, (Hosp.) Estate for Years V. Main, Rent Watt V. Maydewell, Estate for Years V. Watt, Powers Watts V. Ball, Curtesy §125 151 1358 281 672 75 245 90 305 1792 843 1779 22 1806 108 304 2470 1163 684 16.34 17776 2066 224 1636 1264 93 833 1827 78 1686 1716 1822 199 499 1484 1719 2205 102 1829 1659 196 1720 2002 96 196 2466 1330 49 1530 244 V. Boddington, Trusts V. Girdlestone, Trusts Oirnell, Rent 1497 2012, 2013 1102 1805 1949 201 1433 Watts V. Thomas, Estate for Years Weakley v. Bicknell, Estate for Years _ 1292 Weale v. Lower, Heir 81 , Estate Tail 1007 Ixiv TABLE OF CASES, Weaver v. Maule, Mortgage Webb V. Bell, Rent V. Hearing, Estate Tail V. Jigg, Rent V. Jones, Assets V, Linnington, Life Estate V. Paternoster, Easements V. Pliimmer, Estate for Years V. Shaftesbury, (Ld.) Land and Money . V. Webb, Life Estate , Estate for Years Webb's case, Ways , Offices Hab. Corp. case. Common Webster v. Bach, Right of Way Weddcrburn v. Wedderburn, Trusts Weekly v. Wildman, Common Weeks v. Carvel, Tenures Weeks v. Peach, Rent -, Annuity • V. Staker, Common V. Tillard, Rent Weeton v. Woodcock, Fixtures Wegg V. Viller, Uses Weiss V. Dill, Trusts Weld V. Hornby, Waters ,Riglit to Water Weller v. Smeaton, Right to Water Wellcsley v. Wcllcsley, Trusts Wellington v, Wellington, Fee Sim- ple Wellock v. Hammond, Tenures Wells V. Miles, Franchises V, Ody, Right to Water 433 V. Sayer, Trusts (Dean, &,c.) v. Bawden, Copy- holds Wentworth v. Clay, Common V. Wentworth, Dower — — V. Wright, Advowsons Wentworth's (Ld.) case. Franchises West V. Erisscy, Trusts Westborne v. Mordaunt, Right to Water Westborne v. Mordant, Easements WesterdcU v. Dale, Mortgage Westfaling v. Westfaling, Assets , Advowsons , Life Estate Westlcy v. Clarke, Trusts Westmoreland, (E.) Copyholds Westwick v. Wyer, Copyholds Wetherell v. Hall, Trusts V. Howells, Houses Whalcy v. Cox, Heir V. Tankard, Estate for Years §11 235 978 253 49 1036 524 1474 1037 1479 402 595 306 376 1729 231 749 179 263 3.-)l 167 22 1693 1928 108 418 437 1761 95 750 683 .463 1750 Wheeler v. Danby, Estate for Years V. Thorogood, Estate for Years V. Twogood, Manors Wheldale v. Partridge, Land and Money , Trusts §1349 1272 88 Whelpdale's case. Estate for Years Whetstone v. Sainsbury, Mortgage and Wentworth, Estate for Whiehcote v. Years Lawrence, Estate Years Trusts 61 1794 1415 2234 1355 for Whinchcombc v. Pulliston Whiskon v. Clayton, Powers Whistler's case. Manors , Advowsons Whistler v. Webster, Powers , Election Whitacre's case. Offices Whitbread, Ex parte. Mortgage v. Jenny, Copyholds Whitchurch ~ ' ' Water 1454 1945 1734 2059 88 128 2047 2426 581 2203 800. 902 V. Hide, Right to V. Whitchurch, Trusts 837 315 1146 122 648 1810 427 528 2227 36 126 1051 1918 776 913 1936 89 80 1501 ^Vhalley v. Thompson, Right of Way 366. 385 v. Whalley, Trusts 1731. 1803 Wheate v. Hall, Trusts 1819 Powers 1966t) perso!s"altt. Chap. IL CORPOREAL HEREDITAMEjrrS. Chap. IIL incorporeal hereditamext3. § 2. All real property is comprehended under the words ''Lands, tene- ments, and hereditaments ;" lands, as the subject-matter on which the Law of Real Property is founded ; tenements, as that which is held ; and here- , ditamcnts, as that which is inherited. The word " lands'^ in its most universal acceptation is of very extensive import ; it lecrally includes not only castles and houses which rest upon it as their foundation, but also all things belonging to or connected T\"ith it, as well upwards as downwards, as mines, water, air, and all other things even up to heaven, according to the maxim cvjus est solum ejus est usque ad ca7?/?/2.(o) The word "tenements" taken in its most comprehensive sense is of still wider import, comprehending whatever may be bolden, provided it be of a permanent nature, whether of the substantial or ideal kind, including there- ^_-, fore *»not only all corporate inheritances which are or may be holden, L -' but also all inheritances issuing out of any of those inheritances, or con- cerning, or annexed to or exercisable within the same ;"(6) as rents, estovers, commons or other profits Avhatsoever granted out of land ; or uses, offices, or dignities which concern land, wherein a man hath any frank-tenement or freehold, and whereof he is seised Z(t de libera tenemcnto.{b) Tenement, which is the only word used in the Statute de Bonis, is in its ordinary, but limited acceptation, applied to houses and buildings. " Hereditaments'' is a word of still larger extent than either of the two preceding, including not only lands and tenements, but whatever may be inherited, be it real, personal, or mixed, that is neither land nor tenement, but a mere movable as a piece of furniture, and the like. Hereditaments are distinguished into corporeal and incorporeal. Corporeal hereditaments are such as affect the senses, as lands, and houses, &c. ; incorporeal (a) Plowd. 313 ; 1 Inst. 4, a; 2 Comm. 17. (h) 1 Inst. 19, b. REALTY AND PERSONALTY DISTINGUISHED. 19 hereditaments such as are not the objects of sense, but exist in the mind ' only. The nature of Real Property may be further considered under these three heads or chapters : 1. Distinction between Realty and Personalty. 2. Cor- poreal Hereditaments. 3. Incorporeal Hereditaments. ♦CHAPTER I. [*4] DISTIXCTIOX BETWEEN REALTY AND PERSOXALTY. Sect. I. ■ § 4. The devolution of realty and personalty. Sect. II. § 30. Liability to tele pay^ient of debts. Sect. III. § 60. Reciprocal conversion of realty and persona.lty. Sect. IV. § 79. Miscellaneous matters relating to realty and personalty. § 3. Real property is distinguished from personalty in different ways : 1. As to the manner of its devolving ; 2. As to its Hability to the debts of the owner ; 3. As to the reciprocal conversion of one into the other ; 4. Miscel- laneous matters. SECTION I. THE DEVOLL'TION OF REALTY AND PERSONALTY. § 4. Chattels real and personal. 5. What goes to the Heir, and what to the Executor. I. €l)attcls iical. 1. Terms. 7. Cliattei Interests in Lands go to the | 7. Do not go in succession. Executor. | 8. Equitable Interest in Terms. 2. Next Presentation. 9. Next Presentation goes to Executor. I 10. Not to a Successor. or to the Heir. I 20 crabb's law of keal property. [*5] *3. Mortgages. § 11. Legal Estate of Mortgagees in Fee I § 11, Mortgage Money goes to Executor, goes to Heir. | 4^ Bents. 12. Mode of reserving Rent. So as to carry it to the Heir. or to the Executor. 13. Arrearages of Rent goes to the — 13. Executor or otherw'ise, when. 14. Annuity is properly personal Estate. II. Cfjattiis iDeisoual. 15. What Chattels Personal go to the Heir. 1. Heir-Looms. 16. What they are. Things in the Nature of Heir- Looms. 16. Jewels, «fec. Journals of the House of Lords. Delivery for Inspection. 2. Fixtures. 17. Rule as to Things fixed to the Free- hold. 18. Exceptions to the Rule- 19. As to Heir and Executor. 20. Devisee and Executor. 21. Executcrs of Tenant for Life and Re- mainderman. 23. Landlord and Tenant. 23. Meaning of the word " Fixtures." 24. As between Mortgagor and Mortgagee. In Case of Distress. of Execution. What passes in the Conveyance of the Freehold. 3. Trees and Emblements. 25. Trees Parcel of the Inheritance. 26. What Timber Trees or otherwise. 27. Rule as to Windfalls. 29. Fish in a Pond. 28. Fruit of Trees, &c. go to the Heir. Emblements go to tlie Executor. 4. Certain ..Animals. Deer, &c. in a Park. § 4. Personalty as distinguished from realty is known in law by the name of chattels, which are again distinguished into real and personal. Chattels real are terms for years of lands and tenements, next presentations, mort- gages, estates by statute staple, statute merchant, and elegit, &c. Chattels personal are cattle, furniture, money and the like movables. Chattels are likewise distinguished into chattels in possession, which are in the immediate -1 possession of the person ^entitled, or chattels in action, technically L J called choses in action, which must be recovered by suit. 5. By the common law, an estate of freehold or inheritance, not being comprehended under the word chattels, goes to the heir, but chattels on the other hand regularly go to the executor ; this rule however both as to chattels real and personal admits of exceptions and modifications, when considered CHATTELSREAL. 21 either as to the different kinds of representatives, as to landlord and tenant, or assignees in bankruptcy, &c., and lastly as between husband and wife. I. ehattcls Bral. 6. Of chattels real which commonly go to the executor the following arc entitled to notice : 1. Terms ; 2. Next presentations ; 3. Mortgages ; 4. Rents ; 5. Annuities. 1. Terms. 7. All leases and terms of lands, tenements and hereditaments which give a chattel interest only, go to the executor or administrator, but he has no interest in freehold terms or leases, therefore a term for one's own life or the life of another, being a freehold, goes to the heir and not to the executor, but a term for a thousand or ever so many more years, being less than a freehold, goes to the executor, and not to the heir.(o)(l ) So, if a lease for years be made to a bishop, parson or other sole corporation, and his successors, yet it will go to his executor or administrator, for a corporation sole cannot take a chattel in succession, (6) for succession in a body politic is the same as inherit- ance of a private person, (ft) but it is otherwise in case of a corporation aggre- gate of many, as a Dean and Chapter, Mayor and Commonalty, and the like ',(b) so of a sole corporation by custom as the Chamberlain of London ;(i) so in the case of the queen. (6) *So, a limitation of a term for years to one in tail, vests the whole p *« -i in the first taker, and the same shall go to his executors, and not to L J the heir.(c) So, a grant from the Crown of "the year, day, and waste" though made to one and his heirs, yet, being but a chattel, goes to the exe- cutor ;(f/) so, in the case of a tenancy from year to year as long as both parties please, the interest of the tenant goes to his executor or administra- tor,(e) or to a devisee ;(y ) but where a lease is made to several for a term of years as joint tenants, and one dies, his interest survives, and his personal representatives take nothing.(g-)(2) 8. As a rule, courts of equity follow the law in their construction of chattel interests, to which a person may be equitably entitled, but terms to attend (a) 1 Inst. 4G, a. {h) Ful wood's case, 4 Co. 65. (f) Leonard Lovie's case, 10 Co. 87 a, 88 b ; but see Burgis v. Burgis, 1 Mod. 115; Duke of Norfolk's case, 3 Cha. Cn. .30 ; Fearne Cent. Rem. 463 ; 2 Swaiist. 454; sec also Theebridge v. Kilburne, 2 Vez. 233 ; Garth v. Baldwyn, Id. 646. (ti) Wentw. Off. Ex. 132, s. 36. (e) Doe v. Porter, 3 T. R. 13. (/) James v. Dean, 11 Ves. 303. (i?) 1 Inst. 182, a. (1) Case of Gay, 5 Mass. 419. Circcnster v. Hill, 1 N. H. 350. (2) In Pennsylvania, by the act of 1812, survivorship as an incident to joint tenancy is taken away in every species of property, except in the case of a trust. This act applied to estates then in existence. Bnmbaugh v. Id., 11 Serg. & Kawle, 191. This law is adopted in most of the States of the Union. 4 Kent Com, 361, 362. 22 crabb's law ofreal property. the inheritance form an exception to this rule, being always allowed to follow the fee. See further as to trust terms, post, Equitable Estates ; also as to estates J!) ?«' autre vie^post Estates for Life. 2. ^ext Presentation. 9. An advowson, of which a man is seised in fee, goes to the heir and not to the executor, but if the church becomes void in the lifetime of the patron, and he dies, the church being still void, the next presentation goes to the executor and not to the heir, being a chattel severed from the inherit- ance. (/i) So, if a person purchase the next presentation to a church, and die before it becomes void, this, as a chattel, shall go to the executor, and not to ^ -, the heir ;(i) and it is said that the next presentation before the church L J *becomes void, is a chattel real, and, after it becomes void, a chattel personal ;(«') so, if there be tenant in tail, and the church happen to become vacant in his lifetime, and he die before he has presented, his executor, and not the issue in tail, shall present to his turn •,{k) so, if a vicarage happen to become void, and before the parson present, he is made a bishop, &c., yet he shall present to his turn, because it is a chattel vested in him ;(/) but if a man, seised in fee of an advowson, be parson of the church and die, his heir, and not his executor, shall present, for the descent to the heir and the fall of an avoidance happened at one instant, and where two titles concur in one instant, the elder right shall be preferred ;(m) and the grant of the next pre- sentation of a hving to J. S. during his hfe is Hmited, and will not carry the presentation to his executors on his dying before the church becomes vacant. (?i) 10. A chattel does not go to the successor of a corporation sole.(o) There- fore, where a prebendary, having the advowson of a rectory in right of his prebend, died while the church was vacant, held, that his personal repre- sentative had the right of presentation for that turn ;(/)) but where a bishop dies, during the vacancy of a church of which he is patron, it is laid down that neither the bishop's executors, nor his successor, shall have the turn but the queen, by reason of the temporalities. ((j') 11. When a mortgage is in fee, the legal estate will go to the heir, and by a devise of all lands, lands which the testator had in mortgage were held j^_ -l to pass ;(r) but if the *mortgage is for a term of years, it will go to L -■ the executor, as other terms. It was also held, in some of the earlier cases, that the mortgage-money should go to the heir, if the personal assets Qi) Stephens v. Wall, Dy. 982, b ; Br. Ab., tit. Present, al Esglise ; Fitzherb. Present. Ji I'Esglises, 7 ; F. N. B. 33, 34 ; 1 Inst. 388, a ; R. v. Canterbury (Archbp.), 4 Leon. 198 ; Repington v. Tamworth School, 2 Wils. 150 ; all recognised in Rennell v. Lincoln (Bp.), 7 B. &. C. 147. (i) Wentw. Off. Ex. 54. ik) F. N. B. 33. (Z) Id. 34. (m) Holt V. Winchester (Bp.), 3 Lev. 47. (n) Mann v. Bristol (Bp.), Cro. Car. 505 ; S. C, W. Jo. 407. (o) See ante, § 7. ( p) Rennell v. Lincoln (Bp.), 7 B. & C. 113. (V) Brook's Abr. tit. Present, al EsgUse, 10 ; F. N. B. 33 ; 1 Inst. 90, a, Harg. n. (4) ; 2 Roll. Abr. 345. (r) Sir T. Littleton's case, 2 Vent. 351 ; S. C. nom. Winn v. Littleton, 2 Chan. Ca. 51 ; S. C, 1 Vcrn. 3. CHATTELS REAL. 23 were sufficient for the payment of the debts :(.s) but it is now settled by a series of decisions that the executor, and not the heir, is entitled to the money ;(/) and the heir or devisee of the mortgagee will be a trustee for the personal representative, and will be directed to convey tohim;(M)(l) but the heir may, if he chooses, pay off the mortgage, and keep the land ;(a?) and a mortgagee may by any declaration in his will convert the money into land for the benefit of his heir;(?/) and the devise of a mortgage estate, consider- ed as irredeemable, will pass to the devisee, as land.(^) 4. Rent. 12. If a man, seised in fee, make a lease reserving rent generally, without saying to whom, it shall go to his heir and not to his executor ;(«) if reserved to him, his executors, and assigns, the rent shall determine at his death, be- cause, rent being incident to the reversion, cannot go to the executors ;(6)(2) yet, if the words " during the term" be added in such a lease, it has been held that these Avords are sufficient to carry the rent to the heir ;(c) but, ia the report of this case,((Z) it is laid down, that the construction of reservations ought to be according to the reason and *equity of the thing; and p #iq -i therefore, as, on the one hand, if a tenant in fee made a lease reserv- L -^ ing rent to him and his executors, the rent could not go to the executors ; so, on the other hand, if a lessee, for one hundred years, should make a lease for forty years, reserving rent to him and his heirs, that would go to the exe- cutor and be void for the heir ; so if tenant in tail made a lease reserving rent to him and his heirs generally, yet the rent would go to the issue in tail. But where a lessee for three lives assigned his whole estate, reserving a rent to him and his executors, held, that as no reversion was left in the lessor, his executors, and not the heir, were entitled to the rent;(e) so, where a man seised in fee of one acre, and possessed of another acre for term of years, made a lease, rendering one entire rent, whereby the reversion of one acre (s) Titley v. Egerton, 1 Chan. Rep. 181 ; S. C, 2 Freem. 125, citing St, John v. Ware- ham ; Turner v. Crane, Id. 242 ; Anon. Nels. 162. (0 Thornborough v. Baker, 1 Chan. Cas. 283 ; Ellis v. Guavas, 2 Chan. Cas. 50 ; Winn V. Littleton, sup. ; Canning v. Hicks, 2 Chan. Cas. 187 ; S. C. 1 Vern. 412 ; Paulett v. Att.- Gen., Hardr. 467. 469 ; Weaver v. Maule, 2 R. & My. 97. See further 3 Swanst, 630, and other c9,sGs tliGre ciIgq (u) Canning- v. Hicks, sup. ; Tabor v. Grover, 2 Vern. 367 ; S. C. 2 Freem. 227. (x) Clerkson v. Bowyer, 2 Vern. 66. {y) Noys v. Mordaunt, 2 Vern. 581. (z) Doe V. Parratt, 5 T, R. 654. (a) 1 Inst. 47, a. (6) lb. ; 2 Roll. Abr. 450. (c) Sacheverell v. Froggatt, 2 Saund. 367. {d) Nom. Sacheverel v. Frogate, 1 Vent. 161. (e) Jenison v. Lexington (Lord), 1 P. Wms. 555. (1) That a mortgage is but a security for the payment of the debt and passes as an incident thereto, not descending to the heir, or considered real estate, is very generally held. Schuylill v. Thoburn, 7 Sergeant &, Rawle, 419. Wentz v. Dehaven, 1 Id. 317. Craft V. Webster, 4 Rawle, 255. Smith v. Dyer, 16 Mass. 18, particularly under their local statute ; Dewey v. Dewsen, 4 Pick. 1 6. Even in courts of law where the jurisdic- tion is separated. Norton v. Willard, 4 Johns. 41. Runyan v. Merseran, 11 John. 534. Jackson v. Barclay, 5 Cow. 202. In case of possession taken by the mortgagee, the doc- trine of a trust in the heir would be applicable. 4 Kent Com. 1 60. (2) It accompanies the reversion, unless separated by express words, Jolinson v. Smith, 3 Penna. 500, Burden v. Thayer, 3 Met. 78 ; to the heir, Wright v. Williams, 5 Cow. 501, or devisee, Prevost v. Colder, 3 Wend. 517. 24 crabb's law of real property. would o-o to the heir, and of the other to his executors, held that the rent should be apportioned between the heir and the executor.(/) 13. But although rent be incident to the reversion, and shall go therewith, and be pa5^able to the heir, yet the arrearages incurred and become payable in the lifetime of the lessor, shall go to the executor as part of his personal estate •,{g) therefore, if a person, seised in fee, leased for years, reserving rent payable on certain days, if he died after either of the rent-days, all the rent due at the last rent-day would go to his executor ;(A) but if he died before the day, then the rent, which would accrue due on that day, would go to the heir,(z) or to the devisee to whom the reversion was devised ;(A:)(1) jjj -, or to a jointress, (/) or to a *remainderman where a lessor was tenant L -' for life. (?n) If the lessor died on the rent-day after sunset, and before mid-night, the heir, it seems, and not the executor, should have the rent, for it was held not to be due until the utmost limit of the day, which does not end until twelve o'clock, although the time for demanding it be, for conveniency, any time before the sun sets.(n) 5. ^^nmnlks. 14. An annuity, so far as it charges the person only, and does not concern the land or savour of the realty, is a personal thing,(o) but, being an inherit- ance, cannot go to the personal representative. (p) II. oruattcls personal. 15. The exceptions to the rule, that chattels go to the executor, are more numerous in the case of chattels personal than in that of chattels real, either in favour of the heir or of the freehold, as between real and personal repre- sentatives, landlord and tenant or assignees in bankruptcy, &c. These exceptions may be considered under the following heads : — 1. Heir-looms ; 2. Fixtures ; 3 Emblements ; 4. Certain Animals. (/) Moodic V. Garnance, 3 Bulstr. 153 ; S. C. nom. Moody v. Garnon, Moore, 848; S. C. nom. Wood v. Germons, Cro, Jac. 390, in which two latter cases no decision on this point is reported. {g) Off. Ex. 53, 54 ; Godolph., part 2, c. 13, s. 3. (A) Clun's case, 10 Co. 128. (i) Anon. 34 H. 8, cited in Clun's case, sup. ; S. C. Clun v. Fisher, Cro. Jac. 309 ; S. P. Drowt's case, Moore, 726, pi. 1012. (A) Sacheverel v. Frogate, 1 Vent. 148. 161. (Z) Rockingliam (Lord) v. Oxenden, 2 Salk. 578 ; S. C. nom. Rockingham fLord) v. Penrice, 1 P. Wms. 177. (?«) Strafford (Earl) v. Wentworth (Lady), Prcc. Chan. 555. (n) Duppa V. Mayo, 1 Saund. 287. And see Plowd. 172, 173 ; 1 Inst. 202 ; Clun's case, sup. ; Cro. El. 575 ; Rockingham (Lord) v. Oxenden or Penrice, sup. See also, contra, Strafford (Earl) v. Wentwortli (Lady), sup., and the distinction taken between a common lease, and a lease under a power. (o) 1 Inst. 20. (/?) Doct. and Stud. c. 30, p. 97. See further, post, § 259 ct seq. (1) It cannot be apportioned as to time, Bank v. Wise, 3 W. 404, ante 9, n. 2, even though the lease terminate by condition, Zulc v. Id. 24 Wend. 7G ; Fitchburg v. Melven, 15 IVIass. 268 ; but this is altered in the case of a decedent in Pennsylvania by act of 1834. Sec. 7. CHATTELSPERSONAL. 25 1. Heir-Looms. 16. Heir-looms are such goods and chattels as go by special custom to the heir along with the inheritance, and not to the executor or administrator of the last owner of the *estate, and are said to be the best thing of ^, -, every sort, as of beds, tables, pots, pans, carts, and other movables. (5') L -^ They are due by custom and not by the common law, and the heir may have an action for them and shall not sue for them in the Ecclesiastical Court ; but they are not devisable. (r) There are, besides, other things in the nature of heir-looms, as monuments, coat-armour, pennons, and other ensigns of honour which belong to a man's degree or order, and are usually set up in the church ; and although the freehold of the church be in the parson, yet he cannot deface or remove these things, but the heir may have an action against him for so doing ;(s) so, on the same principle the ornaments of the chapel of a bishop, though he is a corporation sole,(f) shall nevertheless go to his successor, as an heir-loom \{it^ and this rule is said to apply to such things, belonging to a parsonage, as have gone from successor to successor ',{x\ but the property in the shroud and coffin belongs to the executor err administrator, and may be laid to be theirs in an indictment for stealing them. (3/) So, although a man devise all his jewels, &c. to his wife, yet his garter and collar of S. S. shall go to his heir, in the way of heir-looms. (;^) And it seems that on the same principle the journals of the House of Lords, deli- vered to a peer, should go with the title. (o) So, the Court of Chancery has power to compel the delivery of chattels personal in the nature of heir-looms ; and on motion the plaintiff was allowed the inspection of the articles which he claimed in a chest at the defendant's bankers, though in his answer he insisted on alien.(6)(l) *2. Fixtures. [ *13 J 17. It is a rule that things fixed to the freehold become parcel thereof, and go to the heir, not to the executor ;(c) therefore, if a tenant affixed anything, he could not on his quitting remove it ;(rf) so goods and chattels annexed to the freehold go to the heir and not to the executor, as glass in a window, doors and locks of a house, &c. ;(e) so pictures, glasses, &c., fixed instead of wainscoat.(/) (9) Bro. Discent, pi. 43 ; 1 Inst. 18, b. (r) 1 Inst. 185, b. (s) lb. ; Frances v. Ley, Cro. Jac. 367. {t) See ante, § 7. (m) Corwen's case, 12 Co. 105. {x) 4 Burn's Ecc. L. 413, Phil. cd. (y) 2 Russell on Crimes, 142. («) Earl of Northumberland's case, 0\v. 124. ((7) Upton V. Ferrers (Lord), 5 Ves. 806, scd quaere. (6) Macclesfield (Earl) v. Davis, 3 V. & B. 16. (c) 21 H. 7, 26, 27 ; Keilw. 88 ; Roll. Abr. 919 ; OfF. Ex. 62 ; Ow. 70, 71. Id) Cooke's case, Moore, 177. (c) Herlakenden's case, 4 Co. 63. (/) Cave V. Cave, 2 Vern. 508. (1) In Maryland, ^ct/--?oo/ns are expressly excepted from the operation of the statute, 1798, ch. 7, s. 1, which g-ives to executors thingrs annexed to the freehold which may be removed without prejudice, &.c. Laws of Maryland, vol. 1, p. 389. 26 crabb's law of real property. 18. This rule, though relaxed, as between the personal representatives of tenant for life or of tenant in tail and the remaiiiderman, and still more so as between landlord and tenant, is adhered to with considerable strictness, as between the heir or devisee of tenant in fee and. the executor ; but even here there have been some instances of relaxation, and therefore it will be neces- sary to consider each of these cases in their order. 1 9. First, as between heir and executor, a distinction has been taken be- tween things accessary to the carrying on trade, or essential to the enjoying of the inheritance ;(^) therefore, in a case before Lord C. B. Corny ns cited in Lawton v. Lawton,(^)(l) a cider-mill though affixed to the freehold, was held to go to the executor and not to the heir ; but in Lawton v. Salmon, cited in Fitzherbert v. Shaw,(i) which was a case of salt-pans erected by the tenant in fee, and used in the salt works, they were held to go to the heir, and not to the executor, because they were necessary to the enjoyment of the inheritance. Again, a distinction has been taken, grounded on the cus- r *ii 1 ^^"^ °^ ^^^ country ;(A;) and also whether they are *fixtures set up L -J merely for domestic convenience,(Z) so determined, says the report, contrary to Herlakenden's case ;(m) aitd so in Beck v. Rebow,(n) hangings and looking-glasses, being mere matters of ornament, were taken not to be part of the house or freehold ; and a similar decision was come to in Harvey v. Harvey, (o) as to hangings, tapestry, and iron backs to chimneys ; but in Winn v. Ingilby,(;)) set-pots, stoves, grates, coppers, and other things which could not be removed without doing injury to the freehold, were held to go to the heir, and not to the executor. 20. A devisee differs from an heir no further than as his claims may be affected by the terms of the will, and the presumed intention of the testator ; therefore, where the devise was of a copyhold estate, consisting, inter alia, of a brewhouse and malthouse, with the plant and utensils, held that the plant passed with the brewhouse, as the latter would have been of no use without it ;( n^ (z) Ex parte Lancaster Canal Company, Mon. 116 ; S. C, on Appeal, Mon. & B. 94 ; 1 Deac. cSi, C. 411. See slso Buckeridge v. Ingram, 2 Ves. jun. 252, where a share m the New River Company was held to be realty, there being no provision in the Act to make the shares personalty. (a) Colcgrave v. Dios Santos, 2 B. & C. 76 ; S. C. 3 D. & R. 255. (fc) riace v. Fagg, 4 Man. & Ry. 277. (c) Hitchman v. Walton, sup. {d) 1 Lev. 131. 30 crabb's law of real property. and the lands do not pass for want of inrolment or otherwise, the trees do not pass ;(e) and if a man lease lands for Hfe or years with all trees, the trees pass only, as they are annexed to the land, and the lessee shall not cut them ;(y ) but, if a man grants all his trees, they are absolutely seised in law and passed away from the grantor and his heirs, and being vested as chattels in the grantee, pass to his executors •,[g'\ yet, though the soil itself does not pass, a sufficient nutriment out of the earth, for the vegetation of the trees is granted ;(^) so if a man sells his land reserving the timber trees, they remain as a chattel in him, distinct from the soil, and shall go to his executors, (i)(l) but if the feoffee afterwards buy the trees, they are re-annexed to the inher- itance ;{k^ yet if tenant in fee-simple lease the land for years, excepting the trees, and afterwards grants the trees to the lessee, they are not re-annexed to the inheritance, but remain absolutely in the lessee, and will go to his exe- cutors ;(A:) so, if tenant for life, without impeachment of waste, with power to cut trees, and to make leases for three lives, &c., leases for three lives, except the trees, and dies before cutting, the trees are re-annexed and his executor cannot cut them.(/) So, if tenant in tail sells the trees to another, they go to the executors of the vendee :(m) but if they are not felled in the lifetime of the tenant in tail, they go to his issue, and neither the vendee nor his executor can have them.(;i) *9A 1 26. *By the term " timber" is meant properly such trees only as L -^ are fit to be used in building, as oak, ash, and elm ; but some trees may, by the custom of the country, be reckoned timber which are not properly so, as birch, beech, &c. ;(o) so, walnut trees, being of considerable value, may be estimated as timber ;(o) therefore, the birch, from the use made of it in Yorkshire for cottages, sheep-houses, and such other mean buildings, has been held to be timber,(;)) and therefore it belonged to the inheritance and could not be cut by tenant for life ;( /)) so, willows in Hamp- shire ;(j) and although it has been said that pollards are not timber,(?') yet the better opinion appears to be, that if the bodies of them be sound and good, they shall be deemed timber,(.s) sed secus if they are not sound, for then they are good for nothing but fuel ;(A the same may be said of dotards, if they have any timber in thera.(M) (e) Lifford's case, 11 Co. 48. (/) Dy. 374, pi. 18 ; S. C, nom. Billingsby t. Hercy, Moor, 831 ; 2 Bulst. 6. is) Stukeley v. Butler, Hob. 173. (A) Lifford's case, 11 Co. 49. (i) Lifford's case, sup., Stukeley v. Butler, sup. (t) Herlakenden's case, 4 Co. 63, b. (I) Latch, 163. (;7i) Lifford's case, sup. (n) lb. ; Bro. Contract, 26 ; 11 Co. 50 ; Poph, 194. (o) Chandos (Duke) v. Talbot, 2 P. Wms. 606. (p) Countess of Cumberland's case, ^loor, 812. (7) Guffly v. Pindar, Hob. 219. (r) Soby v. Molyns, Plowd. 470. (s) Chandos (Duke) v. Talbot, sup. (/) lb. See also Herlakenden's case, 5 Co. 62 ; Rabbet v. Raikes, Woodf. Land, and Ten. 429, Har. &. Wol. ed. (u") Countess of Cumberland's case, sup. See Channon v. Patch, 5 B. «& C. 897 ; S. C. S D. & R. 651. (1) By a conveyance reserving all the pine timber of a particular size, the trees remain the property of the grantor, with so much soil as is necessary to support them. Tucker V. Andrews, 1 Maine, 122 ; aliter if in a grant in fee the reservation be of all timber which may grow there forever — that is an estate of inheritance. Clap v. Draper, 4 Mass, 266. CHATTELS PERSONAL. 31 27. The timber while standing is part of the inheritance, but whenever it is severed, either by the act of God, as by a tempest, or by a trespasser, or by wrong, it belongs to him who has the first estate of inheritance, whether in fee or in tail, who may bring trover for it ; and this was so decreed upon occasion of the great windfall of timber on the Cavendish estate, per Lord C. King ;[x) and where there is an infant entitled to the contingent inheritance, the Court of Chancery will see that the money arising from the sale of such windfalls shall be secured for his benefit. (?/) 28. *As the trees unless severed, belong to the heir,(r) so does _ ,_. -. the fruit which they bear, as apples, pears, &c., belong to the •- -' heir;(a) so, grass growing, though fit to be mowed down for hay, shall go with the land ;(a)(l) so, roots of all kinds, such as parsnips, turnips, &c., belong to the heir, for these cannot be come at without digging up the soil, which must necessarily be a spoil and injur}- to the inheritance. (6) But corn, thouofh srrowing, and ever}' thing else which is produced annually by labour and cultivation, shall go to the executor and not to the heir, as hops, saffron, hemp, &c. ;(c)(2) therefore, if lessee for life of a hop-ground dies in August before severance, the executor may maintain trover for them against the remainderman. (rf) These annual fruits of the earth are in law termed emblements, of which see further, post. Estates. As to contracts under the Statute of Frauds, respecting lands and chattels, see Dig. P. ii. tit. Frauds (Statute^ ; as to the distinction between realty and pei^onalty in respect of waste, see post, Injtries to Things Real. See also Amos and Ferard, Law of Fixtures, passim. 4. Certain Animals. 29. The law respects the freehold and inheritance in regard to certain animals, althoucrh all animals are other-wise chattels ; therefore if a man has fish in his pond', and dies, the fish go to the heir, for they are considered as the profits thereof, and therefore descend with the pond to the heir ;(e) but if fish are in a trunk or net, or the like, it is otherwise, and they go to the exe- cutor, for they are severed from the soil.(/) So, deer in a park,(o-) i. e. a park properly so *called ;(A) so, conies in a warren, and doves in a ^-.^ -i dove-house, young and old, shall go to the heir.(2') '- If a party has but a term of years, still such things will go to his executor, as accessar}- to the land, (A:) but he must leave sufficient of the animals for stores. (/) (x) Bewick v. Whitfield, 3 P. Wms. 263. See also Channon v. Patch, 5 B. & C. 897 ; S. C. 8 D. R. 6ol. Cy) lb. : Bewick v. Whitfield, 3 P. Wms. 266. («) See ante, § 25. (n) Off. Ex. 59 ; Godolph. 122. * (6) Off. Ex. 62. 63. (r"i Off. Ex. 59. (dj Latham v. Atwood, Cro. Car. 51 o (e) Parlet v. Crav, Cro. El. 372 ; Grev's case, Ow. 20. C/) 1 Ii^st. 8. (?) Off. Ex. 127 • Godolph., p. 2, c. 14 ; Svvinb. p. 6, s. 7, 14th ed. (A) Withers v. Iseham, 1 Dy. 70, a, 1 : 2 lust. 199 : Davis r. Powell, Willes, 46. (j) 1 Inst. 8. And see further as to jame, Dig. P. iii. tit Game, (it) Off. Ex., sup. ^ (/) 1 Inst 53. (11 Emaus v. Tumbull. 2 John. R. 322. ^ , • • (2j Com or other product of the soil raised annually by labour and cultivation go to executor. Penhallow v. Dwight, 7 3Iass. 34. 33 crabb's law of real property. SECTION II. LIABILITY FOR THE PAYMENT OF DEBTS. I. Assets for tijc Spawmcnt of Beits. §31. Definition of the Term "Assets." Personal and Real. What liable to Debts. Land made liable by Statute. What Real Assets. Lands in Fee-Simple. Lands taken by Descent or Purchase. Lands in Ancient Demesne, &.c. After an intermediate Descent. On the part of Father or Mother. 32 33 §34 Advowson. 35. Reversion. on an Estate for Life, on an Estate Tail. 36. An Estate pur autre Vie. 37. Assets every where. 38. What necesssary to constitute Assets. 39. Equity of Redemption. 40. Chattels Real. II. jjunti for ti)e J3ai>ment of Debts. 1. Distinction between Legal and Equitable Assets. 42. Administration of Assets in Courts of Law. Administration of Assets in Equity. 42. What legal and what equitable Assets. Charg-e of Debts generally. 43. Equitable Interest. 2. How far the Personal Estate is the Primary Fund. 45. In the Case of Bonds. 46. In the case of Mortgages. 47. In the Case of Loans. 48. Covenant to charge Lands where there is an original Debt. 49. In Case of Devises. Personalty not exempt 3. The Order of paying Debts out of Realty. 50. Estates devised. Estates descended. Estates subject to charges. 50. Advowson descended. Estates in Trust. [*23] *4. Marshalling Assets. 51. Where a Claimant has two Funds. 52. When allowed, or otherwise. Nature of the Contract. 53. In whose favour allowed. 54. In ftivour of Creditors. 55. In favour of Legatees. Not where there is a Devise. 55. Exceptions. 56. Creditor's Lien. 57. Other Cases in favour of Legatees. 58. Legacies to Charitable Uses. 59. In favour of a widow in respect of her Paraphernalia. § 30. The distinction between real and personal property as to their liability to the debts of the owner is of less importance now than forme r- ly,(m) yet it is entitled to consideration in these respects; 1. As they are assets for the payment of debts ; 2. As they form a fund for the payment of debts. (m) See Com. Dig. P. ii. tit. Debts, P. ii. tit. Courts (Equity.) < ASSETS FOR THE PAYMENT OF DEBTS. 33 I. Assets for tUe ^awmcnt of Dctts. 31. Assets from the French assez, sufficient, is a term in law apphed to the property of a deceased person, so far as it is sufficient for or apphcable to any given purpose, as formerly, to make a warranty a bar to an estate tail,(n) or more particularly assets for the payment of debts. Assets are distinguished into personal or real. Personal assets, or assets entre mains, as they used to be called, (o) are what comes into the hands of the executor or administrator to be apphed for the payment of debts. Real assets, or assets per descent, as they are commonly called, are what descend to the heir, and are in like manner applicable for the payment of debts. What has been deemed personal assets need not here be particu- larized further than is necessary to distinguish them from real r , o < -i *assets. As to the distinction between legal and ec[uitable assets, L -^ see infra, § 41. 32. At common law personal property has in all cases been deemed assets in the hands of the executor, but it was otherwise with real property, which in the hands of the heir was deemed assets only in certain cases, as where the ancestor bound himself and his heirs in an obliofation, there the obligee might have an action against the heir, and recover to the value of the assets descended, (;j) but the heir must have been expressly named, otherwise he was not chargeable •,{q'j so, if the heir, before action brought, aliened the land, the obligee was without remedy at law, although it was otherwise in equity ;(r) but the 3 & 4 W. & M. c. 14, amended and extended by 11 G. 4 & 1 W. 4, c. 47, has made not only the heir but also the devisee answerable for debts upon specialty ; and an heir of an heir is liable ;(s)(l) so, also, as it seems, an executor or administrator of anheir;(?) so, in debt against the heir upon an obligation made by his ancestor, the plaintiff by the common law should have all the land which descended to the heir in execution against him, although in that case only was land liable to the execution of the debt of a common person at common law ; and the reason assigned for this exception is, that the law gave an action of debt against the heir, but if the plaintiff should not have execution of the lands against the heir, he could have no fruit of his action. (?/) By the 13 E. 1, c. 18, land was first subjected to the execution of a judgment or recognisance by means of the writ of elegit which gave a moiety of land, and has now, by the 1 & 2 V. c. 110,(.t) been extended to the whole of the land. By the 3 & 4 W. 4, c. 104, lands copyhold, as well as freehold, are made assets for the payment of debts, *not only upon ^^n- specialty, but also debts by simple contract. See further, Dig. P. L i, tit. Debt, P. ii. tit. Courts (Equity.) (n) 1 Inst. 374, b. ; Bro. Assets per Desc. 4, 21. (o) Bro. Assets, sup. (p) Plowd. 441. (f/) Plowd. 440; 2 Inst. 19. (r) 1 P. Wms. 777. See Dig, ii. tit. Courts (Equity.) (s) Dy. 368, a., Ca. 4G. it) Hennino-ham's case, 3 Dy. 344, a.; Plowd. 441. (m) Harbcrt's case, 3 Co. 12 a. (r) See Dig. P. ii. tit. Execution. (1) Waller's Executors v. Ellis, 2 Munf. 88. July, 1846.— 3 34 crabb'slawofrealproperty. 33. As to what things are real assets. Lands are first enthled to notice ; they must be freehold, and descend to the heir in fee-simple, not lands in fee tail ;(?/)(!) so, they must be lands taken by descent, and not by pur- chase ;(z) but it was decided before the 3 & 4 W. 4, c. 106, altering the law of purchase and descent, that a man could not by any form of convey- ance Avhatever raise a fee-simple to his own right heirs, by the name of heirs, as a purchase, so as to prevent the reversion from being assets ;(a) so, lands in ancient demesne shall be assets ;(6) so, lands in gavelkind ;(c) so, lands descending to an heir, after an intermediate descent ;(rf) so, lands descended on the part of the mother, as well as land on the part of the father ;(e) so, where there is a trust in fee, it is made assets by descent by the Statute of Frauds. (/) 34. An advowson appendant to a manor is unquestionably assets, " because the manor itself being asssts, what is appended must be assets likewise ;"(») and it seems to be now settled after some discussion that an advowson in fee in gross is also assets. (h^ The next avoidance in a church, on the other hand, though a chattel real, is not assets in the hands of an executor, because it is deemed to be of no value ; but if in a quare impecUt against a stranger ^ -, who wrongfully *presents, the executor recovers damages, the money L J so recovered will be assets in his hands. (t) 35. A reversion in fee, expectant upon a term for years, is held both at law and in equity to be present assets ; so that the heir cannot plead Hens per descent in delay of execution of the rent and reversion, though the plaintiff' cannot have the benefit of the reversion until the lease be determined, (A') and the possession of the tenant becomes that of the heir on the death of the ancestor and makes an actual freehold in him, so that by such seisin his heir becomes liable to a bond debt incurred by him in respect of lands descended ;(^) so, a reversion expectant upon an estate for life is asset s,C7n)(2'\ but a reversion in fee expectant upon an estate tail is not (y) 2 Dy. 12-1, a., Ca. 38. (s) Emerson v, Inclibird, 1 Ld. Raym. 728. In) Godolpliin y. Abin<,rdon, 2 Atk. 5~. (b) H. 4. 14, cited Bro. Assets per Descent, pi. 11. (c) Hawtric v. Au^er, 2 Dy. 239, a. ; S. C. nom. ITawtre v. Anger, Moor. 74 ; Roll v. Osborn, ITob. 25 ; 1 Inst. 376, b. ; Game v. Symms, Cro. Jac. 21 7. (d) Anon., Dy. 368, a., Ca. 46. (c) Roll v. Osborn, sup. ; 1 Inst. sup. ; W. .To. 88. ( /■) Kinsi V. Ballctt, 2 Vcrn. 248. (c) Per I-d. ITardwickc, C.3 Atk. 465. (h) 1 lust. :J74, b. ; Sav. 119 ; Robinson v. Tonye, 2 Eq. Ca. Abr. 509 ; S. C, 1 B. P. C. 114; cited 3 Atk. 464 ; Ripley v. Watervvorth, 7 Ves. 447. (i) Went. Otr. Ex. 173, Mtb ed. {k) Smitli V. An^Tcll, 2 Ld. Raym. 783 ; S. C, 1 Salk. 354 ; S. C, 7 Mod. 40 ; Villers v. Handley, 2 Wils. 49. (l) Buslibv V. Dixon, 3 B. .t C. 298 ; S. C, 5 D. & Ry. 126. (m) Uooke v. Clcaland, 1 Ixi. Raym. 53 ; S. C. 1 Lutw. 503. But in Fortrey y. Fortrcy, (2 V'ern. 134,) a judi^ment was recovered against an licir, who had a reversion in foe descended to him, and it was held, that the creditor could not compel the heir to sell the reversion, but must wait imtil it fell. Sec, however, Tyndalc v. Warrc, Jacob, 212. (1) In Pennsylvania, estates tail are subject to be sold for debts, for the life of the tenant, being tlie debtor. Sliarpe v. Pettit, 4 Y. 416. But in many of the States of the Union, they'^hnve been abolished or moditicd, and subjected to debts. 4 Kent, Com. 14, 15, and n. (2) Loverett v. Armstrong, 15 IVIass. 26. Whitney v. Whitney, 14 Mass. 88. All pos- sible titles, contin-rcnt or otliorwisc, may be sold, in Pennsylvania. Humphreys v. Id., 1 Y. 427. Hurst v. Lithgow, Id. 24. Burd v. Dansdale, 2 Bin. 80. Rickcrt v. Madeira, 1 Raw. 329. Jarrctt v. Tomlinson, 3 W. & S. 114. ASSETS FOR THE PAYMENT OF DEBTS. 35 assets, because it lies in the Avill of the tenant in tail to bar it at his plea- sure, (/?) but aft(M- the tail is spent it is assets, (n) and such a reversion is assets for the debt of the first person who was in possession, and who created the reversion ;(o) it is however not settled whether it be assets for the debt of any intermediate taker. In Smith v. Parker,(p) it was decided that such a reversion is assets, but the correctness of this decision has been questioned in Tweedale v. Coventry, (y) and Doe v. Hutton.(r) 36. An estate jowr autre vie to a man and his heirs is real assets, and is made liable by the Statute of Frauds to debts *by specialty. (*) On ^ -, the other hand, a like estate to executors and administrators is per- L 'J sonal asse/s.(/)(l) 37. Personal assets in any part of the world are assets in every part of the world ;(«) so, if there be lands in different counties, they should be equally assets by descent.(t') In Noell v. Robinson, (.r) it was held, that a thing, although an inheritance, being in a foreign country, was nevertheless a chattel ; but in Gardiner v. Fe\],{y) it was referred to the Master to inquire what interest the testator had in lands situated in a foreign country, whether personal or real. By the 5 Geo. 2, c. 7, houses and lands, and other here- ditaments situate in any British plantation in America, shall be deemed assets for the payment of debts ; and by the 9 Geo. 4, c. 33, a similar provision is made in respect to real property belonging to all persons, not Mahomedans or Gentoos, situated in India. 38. To constitute an inheritance assets, it must be something certain, as lands, rents, commons, and the hke ;(z) therefore, a rent seek, which descend- ed to the heir, and for which he had no remed}^ was not assets, until he had gained seisin. (a) So, an annuity is not assets, for it is only a ehose in action ;{h) so, generally, a right without any estate in possession, reversion and remainder, is not assets until it be recovered and reduced into posses- sion. (o)(2) A power of appointment, however, to raise a sum of money is assets for creditors ;((Z) but there is this distinction between a power and *absolute propert)^(ej that, unless the power be executed, no creditor ^ , can be entitled to the money ; and it is said, in that case, » father L J (n) Kellow v. Rowden, 3 Mod. 257 ; S. C, 3 Salk. 178 ; S. C, Show. 244 ; S. C, Hclt, 71 ; S. C, Carth. 126. (o) Kinaston v. Clark, 2 Atk. 204. (p) 2 Blackst. 1230. {q) 1 B. C. C. 240. (r) -3 B. & P. 643. (s) Marwood v. Turner, 3 P. Wms. 165. (0 Devon (Duke) v. Atkins, 2 P. Wms. 381 ; Westfaling v, Westfaling, 3 Atk. 460, recognised in Ripley v. Waterworth, 7 Ves. 477. (m) Sheph. Touchst. 496, citing 6 Co. 47, recognized in Att.-Gcn. v. Dimond, 1 Cr. &, J. 370 ; S. C, 1 Tvrw. 258. (i>) Dowdale's case, 6 Co. 47 a. (x) 2 Ventr. 358. ' (y) 1 Jac. & W. 24 ; S. C, 2 Wils. C. C. 22. (2) 2 Inst. 293. (a) Brediman's case, 6 Co. 58 b. (fe) Br. Assets per Desc, pi. 26, citing Doct. and Stud., lib. 1, fol. 76. (c) Brediman's case, sup. (d) George v. IMilbanke, 9 Ves. 190. (e) Holmes v. Coghill, 7 Ves. 290. (1) By the act of 1834, § 9, unless limited to the heirs, they pass to creditors, in Penn- sylvania. As toother States, see 4 Kent, 27 ; Aerston v. Gage, 9 Mass. 395. (2) S. V. Janett v. Tomlinson, 3 W. & S. 114. 36 crabb's law of real property. than supplying a defect in the execution of a power, the Court has never gone" in favour of creditors.(/)(l) 39. An equity of redemption of a mortgage in fee is assets in equity, though not at law ',{g) and an equity of redemption of a mortgage for years of an estate in fee is assets to pay debts by simple contract •,{h) so, a debt by a decree in equity, though but a personal demand, will bind the heir or devisee having assets ;(i^ on the other hand, if an executor, in right of his testator, recover damages for any breach of covenant or contract, although it sounds in the realty as for not assuring lands, &c., yet, if it be broken in the testator's lifetime, it shall be assets in the hands of the executor. (A:) 40. Chattels real are regularly personal assets / so a leasehold estate for years in Ireland is personal assets in England, and may be sold here by the executor ;(/) but as to term for years, it has been decided in more than one case, that such a term being a trust-terra is not assets in equity ;(??») and the distinction taken is, that a term vested in trustees is not assets to pay debts ; otherwise, if the term be in the party himself, and the inheritance in trus- tees ;(n) although a dictum to the contrary of this distinction is reported in Ratcliffv. Grave ;(o) but in the S. C, 1 Vern. 196, no mention is made of this point. [ *29 ] *ii. j^mti fov tUe ilaument of Bctits. 41. Under this head may be considered, 1. The distinction between legal and equitable assets ; 2. Hoav far personalty is the fund primarily liable ; 3. The order in which real property is applicable for the payment of debts ; 4. Marshalling assets. 1. Distinction between Legal and Equitable Assets, 42. Assets which are liable to debts and legacies by the course of law are called legal assets, but such as are liable only by the help of a court of equity are called equitable assets.{2^ (/) Per Sir W. Grant, lb. Is) Sawlcy v, Gower, !2 Vern. 61. (A) Coleman v. Winch, 1 P. Wms. 775. (i) Conner v. Browne, 1 Ridgw. P. C. 13P. {k) Off. of Exec. 65. (/) Bligh V. Lord Darnlcy, 2 P. Wins. 622 ; and see Gardiner v. Fell, 1 Jac. «fe Walk. 22 ; S. C, 2 Wils. C. C. 22. (m) Tiffin V. Tiffin, 1 Vern. 2 ; S. P., Dowse v. Percival, Id. 104. (n) Thruxton v. Att.-Gen., Id. 341. (o) 2 Chan. C^. 152. (1) Such powers are declared assets, and can be exercised by Chancery in New York. 4 Kent, Com. 341. >S (1) The distinction between Ic*^! and equitable assets exists in New York. Moses v. Murgatroyd, 1 J. C. R. 130 ; in Kentucky, Grider v. Payne, 9 Dana, 190 ; and Virginia, Bickhouse v. Patton, 6 Pet. 168; and probably wherever the administration of law and equity are in distinct tribunals. In Pennsylvania, there is no distinction. In re John Spcrry, 1 Ash. 351 ; but the lions given by law, existing at the time of the death continue and are first paid. Girard v. M'Dcrmott, 5 S. & R. 12d. Fryhoffer v. Busby, 17 Id. 122. As in equity, Codwise v. Gelston, 10 John. 522. FUND FOR THE PAYMENT OF DEBTS. 37 Legal assets are administered according to the rules of priority which have obtained for the payment of debts ; as, first, Crown debts ; next, debts which, by particular statutes, are to be preferred before others, as, money owing for the postage of letters under the Postage Acts, and money to be received by the overseers of the poor under the 17 Geo. 2, c. 38, or by the officer of Friendly Societies, under the 4 & 5 W. 4, c. 40. (;j) After these follow debts of record, as judgments [entered according to 2 & 3 Vict. c. 1 !,((/)] recog- nizances, then debts on special contract, as for rent, or on morto-ao-es, bonds covenants, and other hke specialities ; and lastly, debts on simple contract. See further on this subject, Bac. Abr. Executors and Administrators (H.) ; 2 Wms. Exec. 1297 et seq. ; Ram on Assets, 353 et seq. In a court of equity all debts are equal, whether by judgment, bond, or simple contract, and equitable assets will be applied in satisfaction of the creditors 7J«ri passu ;(r) but when a court of equity administers legal assets, it does so *in the due course of administration, allowing the different ^ creditors to enjoy the right of priority they are entitled to at law.(s) L J . As to what has been deemed equitable assets in distinction from legal assets depends, as it appears, either upon the intention of the testator, or upon the nature of his interest in the property.(?) Upon the principle of law, that whatever came to the hands of a person in the character of execu- tor, or by reason of his executorship, should be assets in his hands, (?<) the generality of the old cases determined that money arising by sale of lands devised to, or subjected to the power of, executors to sell for the payment of debts and legacies, should be legal assets in their hands, although they could not be charged with the value of the lands before sale.(.c) In some, however, of the old cases, where a party was supposed to take in the double capacity of trustee and executor, the assets were held to be equitable assefs,{y) and that too, though the devise were not to the executor expressly upon trust or as a trustee, provided there be enough in the will to convert the executor into a trustee, as if the devise be to him and his heirs. (z) In Freemoult v. Dedire,(a) it was holden, that if an estate descended to the heir, charged with debts, it was legal assets ; but this decision has been expressly overruled *in Bailey v. Ekins,(i) recognising Hargrave v. ^ _. Tindan,(c) Batson v. Lindegreen,((-/) Burt v. Thomas, cited 7 Ves. L -I 323 ; and it makes no difference whether the descent be broken or not ;(c) and though in Batson v. Lindegreen,(y) where the devise was to the heir ( p) See Dig. P. ii. iii. tit. Friendly Societies, Poor. Iq) See Dig. P. iii. tit. Judjrments. (r) Sir C. Cox's Creditors, 3 P. Wms. 341. (s) Wilson V. Fielding, 2 Vern. 764; Clay v. Willis, 1 B. & C. 371. (0 2 Fonbl. Eq. Pr. 404, n. ( /")• («) Dethick v. Caravan, 1 Roll. Abr. 920, pi. 6 ; Berwell v. Corrant, Hard. 405 ; Alex- ander v. Gresham, 1 Lev. 224. M (x) Girling v. Lee, 1 Vern. 63 ; Hawker v. Buckland, 2 Vern. 106; Greaves v. Powell, •^43 ; Cutterbulk v. Smith, Prcc. Chan. 127 ; Anon., 2 Vern. 405 ; Bickham v. Freeman, Free. Chan. 136 ; Walker v. Meager, 2 P. Wms. 416; Lord Mashara v. Harding, Bunb. 339 ; Blatch v. Wilder, 2 Atk. 420. (v) Hickson v. Witliam, Cas. temp. Finch, 196 ; S. C, Freem. 305 ; S. C, nom. Hixon V. Wytham, 1 Chan. Ca. 248 ; Anon., 2 Vern. 133 ; Challis v. Casborn, Prec. Chan. 408 ; Chambers v. Harvest, Mos. 123 ; Hall v. Kendall, Id. 323; Prowse v. Abingdon, 1 Atk. 484 ; Lewin v. Oakley, 2 Atk. 50. {z) Silk V. Prime, 1 B. C.C. 138, n. ; Newton v. Bennett, Id. 135 ; Barker v. Bouclier, Id. 140. (a) 1 P. Wms. 429. (ft) 7 Ves. 319. (c) 1 B. C. C. 136, n. (<^)'2 B. C. C. 94. (e) Bailey v. Ekins, sup. ( / ) Sup. 38 crabb's law of real property. in trust to pay the debts, the heir was held to take by his better title, yet he was by the devise made a trustee, Bailey v. Ekins.(£r) 43. Where the interest of the party is purely equitable, it has been held that the assets should be deemed equitable, unless it came within the Statute of Fraudulent Devises, (A) therefore where a mere trust estate descended upon an heir, it ivould be considered as legal and not equitable, because the statute gave the specialty creditor his remedy at law against the heir ; as if there was a mortgage for years, leaving the reversion in fee in the mortgagor, that w^ould be legal assets, because the bond creditor might have judgment against the heir of the obligor, and a cesset execUtio till the reversion came into possession, sed secus Avhere it was a mortgage of the whole inheritance, because, in that case, the creditor could have no remedy at law, and if he brought an action against the heir the latter might plead riensper descent.{i\ In support of this decision, so far as regards a chattel mortgage, it has been held that chattels, whether real or personal, mortgaged or pledged by the tes- tator, and redeemed by the executor, should be assets at law in the hands of the executor, for so much as they were worth beyond the sum paid for their redemption ;(A:) it has, however, been held in other cases, than the equity of P =^09 -1 redemption of a term for *years is equitable and not legal assets ;(/) L -' and it is also said in Wentworth's Office of an Executor, that where the redemption of the executor is after the day of payment, equity only and not law can make any part of the value assets in his hands ; these conflicting decisions may therefore be reconciled, if in the cases first cited the testator did not survive the day of redemption. (?«) As to mortgages in fee a distinction is taken in Sharpe v. Scarborough (Earl,)(n) between bond creditors and judg- ment creditors, the equity of redemption being in the debtor in the former case, but in the latter case the judgment creditor has the right to redeem, and therefore the equity of redemption is in that case not equitable but legal assets. 2. How far the Personal Estate is the Primainj Fund. 44. As a rule the personal estate is the primary fund, Avhich must be resorted to for the payment of debts of every description ; but to this rule there are several exceptions — in the case of bonds, and other specialities generally, in the case of mortgages, and in the case of devises. 45. As regards debts by bond and other specialties generally, where the ancestor has bound himself and his heirs, the creditor may in that case sue ig) Sup. (//) 3 & 4 W. & M. c, 14, amended by 11 Geo. 4 &, 1 W. 4, c. 47. See Dig. P. ii. tit. Courts (Equity.) (i) Plunket v. Penson, 2 Atk. 290. {k) Hawkins v. Laws, 1 Leon. 155 ; Harccourt v. Wrenham, Moor. 858 ; S. C, nom. Harwood v. Wrayman, 1 Roll. Rep. 56 ; 1 Roll. Al)r. 920 ; 1 Brownl. 76 ; Alexander v. Lady Gresham, 1 Leon. 224. See also Mr. Cox's note, 3 P. Wms. 342. (/) The Creditors of Sir Charles Cox, 3 P. Wms. 342 ; Hartwell v. Chitters, Ambl. 308, both rccog-niscd in Clay v. Willis, 1 B. & C. 372, which last is also recognised in Baker v. Blay, 9 B. & C. 493. (?rt) Sec 2 Wms. Exec. 1320, 3rd ed. (h) 4 Ves. 541. FUND FORTHE PAYMENT OF DEBTS. 39 either the heir or the executor at his election ;(o)(l) and it is no plea in an action against the heir that the executor or administrator has assets ;(/>) so, the creditor may sue the same person being both heir and executor ;((/) but if the heir or executor pay the whole or part, and afterwards the other be sued, there shall be rehef in audita querela ;{(]) so, if the heir pay his an- ^ , cestor's *debts to the value of the land descended, he shall hold the L -I land discharged from the other debts of the ancestor ;(r) but he cannot claim to retain a certain sum, for money laid out in repairing the tenements descended ;(s) so, a man may make an equitable as well as a legal charge on. his estate, and equity will maintain it against his heir ;(^) so, where the heir, being likewise administrator, and having real assets per descent, discharged a bond debt, in which he was bound, which he insisted was out of the per- sonal estate, the Court of Chancery would not admit of this construction, to the defeating of the simple contract creditors. (w) On the other hand, if an heir discharges the bond debt of his ancestor, and the executor has assets, he shall reimburse the heir thereout ;{x)[2) and this extends not only to the hseres natus or heir-at-law, but also to the hxres /actus or the devisee. (t/) 46. As a rule, if a man mortgages lands, and covenants to paj^ the money, and dies, the personal estate of the mortgagor shall, in favour of the heir, be applied to exonerate the mortgage, (2)(3) although the personal estate has been (o) Br. Assets per Desc. 33. ( p) Quarles v. Capell, 2 Dy. 204, b. ; Davy v. Pepys, Plowd. 439 ; Davies v. Churchman, 3 Lev. 189 ; Galton v. Hancock, 2 Atk. 426. (9) Haight V. Langliam, 3 Lev. 304. ()•) Buckley v. Nifflitimrale, 1 Str. 665'; S. C, Ca. temp. Talbot, 109. (s) Shetehvorth vfNeville, 1 T. R. 454. (0 Wigg v. Wigg, 1 Atk. 382. («) Neave v. Alderton, ] Eq. Abr. 144. {x) Armitage v. Metcalf, 1 Clian. Ca. 74 ; Anon., 1 Chan. Ca. 5. ((/) Gower v. Mead, Prcc. Chan. 2 ; S. C. nora. Meade v. Hide, 2 Vern. 128. See also Pockley v. Pockley, 1 Vern. 36 ; Cutler v. Coxeter, 2 Vern. 302 ; Hawes v. Warner, Id. 477 ; French v. Chichester, Id. 568 ; Lutkins v. Leigh, Ca. temp. Talbot, 53 ; Rider v. Wager, 2 P. Wms. 335, in which the personal estate was applied to exonerate the real in favour either of the heir or the devisee, whether general or particular. (2) Cope V. Cope, 2 Salk. 449. (1) In Pennsylvania, all lands being assets and subjected to a lien for all the debts of a decedent, the course is to proceed against the personal representative, which might, before the act of 1797, be done at any time after the death of the ancestor, — by that act the proceed- ings must be commenced and prosecuted within seven years — nowreduced by the actof 1834 to iivc years, in order to charge the land ; unless this be done, the heir or devisee is equally discharged with a piuchaser. Bailey v. Bowman, 6 W. & S. 118. Upon this judgment, the land could be levied on and sold without notice to the heir, until the act of 1834, § 34, provided a remedy ; under this it has been held that after a judgment against the personal representatives, where the real estate is intended to be levied on, the heirs must be summoned by sci. fa., in which they are at liberty to contest the original debt. Mur- phy's Appeal, 8" W. & S. 165. Atherton v. id., Dec. T. 1846, S. C. Penna. That lands are assets for payment of debts generally in all the States of the Union, is assumed by Kent., 4 Com. 421. (2) The same rule prevails in Pennsylvania. In re Keysey, 9 S. &. R. 72-3 ; and in Virginia, Haydon v. Good, 4 H. &. ISl. 4(j0. (3) The heir shall be discliarfred of a mortgage out of the personal assets. Dandrige V. Minge, 4 Randol. 397. Gibson v. M'Cormick, 10 Gill & John. 107. In re Keysey, 9 S. &. R. 72-3 ; unless the estate be insolvent, Gibson v. Crehore, 5 Pick. 150 ; but the rule has been changed in New York by statute. MoUan v. Griflith, 3 Paige, 404. 40 crabb's law of real property. devised ;(o) but such exoneration will not be allowed to the prejudice of any creditor,(6) or any legatee, except a residuary legatee. (c) r *^J. 1 '^'^' *-E'^'^ry ^0^^ creates a debt from the borroAver, whether there L -^ be a bond or covenant for payment, or not,(') Brummel v. Prothero,(s) Tail v. North- wich,(/) Hartley v. Hurle,(z<) Bridges v. PhiUips,(t;) Watson v. Brickwood,(x) M'Cleland v. Shaw,(3/) Aldridge v. Wallscourt (Lord,)(z) Tower v. Rous,(a.) Bootle V. Blundell,(6) Gittins v. Steele,(c) Rhodes v. Rudge,(f/) Bickham v. Cruttwell,(e) In the following cases the personal estate has been considered exonerated :— Wainwright v. Bendlowes,(/ ) Bamfield v. Wyndham,(g-) Adams v. Meyrick,(/i) slapleton v. Colville,(i) Phippe v. Annesley,(A:) Bick- nell V. Page,(/) Walker v. Jackson,(7/i) PhiUps v. Nicholas,(>?) Holiday v. Bowman,(n) *Anderton v. Cook,(o) Kynaston v. Kynaston,(o) Glebe ^gg -, V. Glebe,(o) Webb v. Jones,(79) Williams v. Llandaff (Bp.,)(ry) Bur- L -1 ton V. Knowlton,(r) Gaskill v. Hough,(s) Hancox v. Abber -,{1) the result of all which cases appears to be, that a general devise of real and personal estate for the payment of debts, will not exempt the personalty, as the pri- mary fund, for it is not sufficient to charge the real estate, it is absolutely necessary in express terms to discharge the personal estate : Bootle v. Blun- de\\,{u) Bickham v. Crut\vell,(t<) At all events, the conclusion of the testa- tor's intention must be drawn from the general context of the will, and evi- dence dehors the will is not admissible.(a:) 3. The Order of paying Debts out of the Reed Estcde.[\) 50. With respect to the priority of application of real assets for the pay- ment of debts, when the personal estate is either exempt or exhausted, the following appears to be the order laid down : — 1. The real estate specifically devised for the payment of debts. (y) 2. Estates descended. (2) 3. Real estate specifically devised, subject to a general charge of debts.(a) (i) 2 Vern. 301. Qi) Id. 569. {I) Sup. m) 3 P. Wms. 322. (n) Amb. 33 ; S. C, 1 Wils. 82 ; 1 Cox 1. (0) 1 B. C. C. U4. ( p) Id. 454. (?) 3 B. C. C. 54o ; fe. C. 1 Cox 82. (r 3 Ves. 103. (J) Id. 111. (0 4 Ves. 816. (m) 5 Ves. 540. (V) 6 Ves. 567. (x) 9 Ves. 447. (y) 2 Sch. & Lef. 538. (4 1 Ball & Bea. 312. («) 18 Ves. 132. (6) 1 Mer. 193 ; S. C, Coop. 136. (c) 1 Swanst. 28. (rf) 1 Sim. 79. (e) My. & Cr. 763. ( f) 2 Vern. 718. (e) Free. Chan. 101. (A) 1 Eq. Ca. Abr. 2il. (/) Forr. 202. {k) 2 Atk.57. (/) Id. 79 Im) 2 Atk. 624 ; S. C, 1 Wils. 24. (") Cited 1 B. C. C. 145. 0) Cited Id. 456. ( p) Id. 60 ; S. C, 1 Cox, 245. (?) 1 Cox, 2o4. (r) 3 Ves. 107. (s) Cited lb. (0 11 Ves. 179. ^"1^?' (:«:) Andrews v. Emmott, 2 B. C. C. 29 ; recognised in Standen v. Standen, 2 Ves. jun. 593 (V) Donne v. Lewis, 2 B. C. C. 256, distinguishing Gallon v. Hancock, 2 Atk. 424 ; Powis V. Corbett, 3 Atk. 556. Sec also Davies v. Topp, cited 2 B. C. C. 2o9, n. (z) Pitt V. Raymond, cited 2 Atk. 434. (o) Pitt V. Raymond, sup. ; Milnes v. Slater, 8 Ves. 303. (1) Order in which assets are marshalled. Hays v. Jackson, 6 Mass. l.ol. Livingston V. Livingston, 3 J. C. R. 143. Livingston v. Newkirk, Id. 319. 31'Campbcll v. MKLamp- bell, 5 Litt. 95. 42 CRABB's LAW OF REAL PROPERTY. 4. An advowson in fee descended before freehold estates in fee, and lease- hold estates pur autre vie devised. 5. Estates devised in trust to be sold for the payment of debts, then estates specifically devised and charged with debts, and lastly the estate descended. (6) 6. A descended estate was held liable to pay off the mortgage, with which a devised estate was charged, (c) [ *37 ] *4. Marshalling Assets. 51. Marshalling assets properly includes what has been stated with regard to the order of their application ;(rf) but the term is more particularly applied to those cases where one claimant has two funds to resort to, and another claimant has only one, in which cases a court of equity exercises its jurisdic- tion, in so applying the funds that all the claimants may be satisfied out of the assets as far as they will go ;(e)(l ) as if there is a debt owing to the queen, equity will order it to be paid out of the real estate, that other creditors may have satisfaction of their debts out of the personal assets.[f^ The court interposes in two wa\^s, either by turning the person, who has the double security, upon that fund, which is not liable to the other claimants' demand, so as to leave the other fund open ;(g") or, if satisfaction has already been taken out of this fund by the party having the double security, then by decreeing the other party to stand in his place, and draw from the remaining fund as much as has been taken from the first mentioned, therefore where a mortgagor mortgages two estates to one person, and afterwards one only of the estates to a second mortgagee, who had no notice of the first, the Court, in order to relieve the second mortgagee, have directed the first to take his satisfaction out of that estate which is not in mortgage to the second mort- gagee ;(/t) so, where executors have paid specialty creditors secured on the (Ji) Donne v. Lewis, sup. See also Manning v. Spooner, 3 Ves. 114, (c) Galto V. Hancock, sup. id) See supra, § 50. {e) Aldrich v. Cooper, 8 Ves. 388. ■ ( /) Sagitary v. Hyde, 1 Vern. 455. (ff) Povy's case, 2 Frcem. 51 ; Feverstonc v. Scetlc, 3 Salk. 83. {h) Lanoy v. Athol (Duke), 2 Atk. 446. (1) This is a principle of equity independent of the forms of administration of justice. Kvner v. Kyner, 6 W. 223. WartlloW v. Gray, Dudley Eq. Ca. 113. Brinkerlioff v. Mar- viiic, 5 J. C. U. 324. 1 Story Eq. ss. 493. 633. 637. Alston v. Munford, 1 Brock. 279. And it will be exercised by compelling the parties having two funds to seek satisfaction out of that on which another creditor has no lien, as well inter vivos as otherwise. Clowes V. Woods, 5 J. C. R. 239 ; Hawley v. Mancius, 7 J. C. R. 183-4 ; Gill v. Lyon, 1 Id. 447 ; Evertson v. Booth, 20 J. R. 498 ; this principle may be considered settled in Pennsylvania without reference to the chancery powers of tlie court, Harrison v. Wain, 9 Serg. &. R. 320 ; Nailer v. Stanley, 10 Serg. &. R. 450 ; Bruner's Appeal, 7 W. &. S. 269 ; Hasting's case, 10 Watts, 305; but, if there be doubt as to the sufficiency of the fund, the courts will not restrain the right of the party, Evertson v. Bootli, 20 J. R. 498; nor if delay will ensue, Tvyner v. Kyner, 6 Watts, 226 ; unless the claim be paid or deposited, Id. ; Bricker- hotfv. IMarvuic, 5 J. C. R. 324; nor in favour of a volunteer, Harrison v. Wain, 9 Serg. & Rawlc, 320; and if there be more than one debtor, the equities between tlieni govern the court. Sterling v. Brightbill, 5 Watts, 229. And it may be done by subrogation to the security of the other, tliough this will not be done while any part of the debt remains unpaid, Kyner v. Kyner, supra. It was iiowever held in Feedley's Appeal, Dec. Term, 1846, S. C. Pcnna, that judgment creditors might claim, in the first instance, out of the personal property, and look for the residue to their liens where the estate was deficient. FUND FOR THE PAYMENT OF DEBTS. 43 real estate out of the personalty, the simple contract creditors have been decreed to have their debts satisfied out of the land.(i) 52. But this marshalhng must properly be as between the real and per- sonal assets of the deceased, and it has been *said that the court has ^^^ -. no jurisdiction to marshal the assets of a person alive ;(A;) yet it L seems, that although the term " marshal" is technically applied only to assets of a deceased person, the principle may, in certain cases, be applied to tran- sactions inter vivos.[l) So, the court cannot extend this rehef to creditors further than the nature of the contract will support,(?n) if, therefore, the contract by specialty be such as not to affect the real estate, as a bond not mentioning heir, there is no marshalling, as there are not two funds, and therefore no one is disappointed by the option of the other. (n) 53. Marshalling assets is admitted in favour of creditors, in favour of lega- tees, and in favour of the widow's imrapharnalia. 54. By the common law the simple contract debts of a deceased person were not paj-able out of his real estate, vmless, by his will or otherwise, he made it a fund for the payment of his debts ; But it was otherwise with the creditors by specially, where the heirs were bound. The 3 & 4 W. 4, c. 104, which subjects all real property to the payment of simple contract debts, is confined to such as have died since 29 Aug. 1833, and the 11 G. 4 & 1 W. 4, c. 47,(o) which prevents a testator from defeating the claims of his specialty creditors, leaves all devises for the payment of debts as they were before, so that the doctrine of marshalling assets in favour of creditors re- mains in full force ; accordingly, if there are creditors by specialty, and also creditors by simple contract, and the specialty creditors, instead of resorting to the real assets (which independently of the act the latter cannot reach,) proceed against the personal estate, *the court will then marshal the ^^^ -, assets by permitting the simple contract creditors to stand in the L place of the specialty creditors against the real assets, so far as the latter have exhausted the personal estate ;(;j) and this applies to an estate devised, as well as to an estate descended ;{q) so, to copyhold as Avell as freehold estates ;(r) so, creditors by specialty, although volunteers, have been allowed, as against devisees, to stand in the place of mortgagees, who have exhausted the fund provided by the testator for the payment of debts ;(s) so, in case of bank- ruptcy, it has been held that the principle of marshalling assets was apph- cable ;{t) so, if the vendor of an estate, the contract for which was not com- (i) Charles v. Andrews, 9 Mod. 151. (A-) Lacam v. Jlcrtins, 1 Vez. 312. \l) Aldrich v. Cooper, 8 Ves. 389, recofrnising Lacam v. Mertins, sup. See Sneed v. Culpepper, 2 Eq. Ca. Abr. 225 ; 7 Vin. Abr. 52. (m) Lacam v. Mertms, sup. (n) Aldrich v. Cooper, sup. (o) See Dig. P. ii. tit. Courts (.Equity). ( p) Wilson V. Fielding, 2 Vern. 763. {q) Gallon V. Hancock, 2 Atk. 436; Snelson v. Corbet, 3 Atk. 369 ; Austen v. Halsey, 6 Ves. 475. ^„ (r) Aldrich v. Cooper, 8 Ves. 382, overruling Robinson v. Tonge, 1 P. ^V ms. bbU, n., Cox's ed., recognised in Bute (Marquis) v. Cunynghame, 2 Russ. 288 ; Gwynne v. ±.d- wards, cited 2 Russ. 289, n. (s) Lomas v. Wright, 2 My. &. K 769. (0 Greenwood v. Taylor, 1 R. &. My. 187, questioned in Mason v. Bogg, ^ My, in. Gr. 443. And see Rome v. Young, 3 Y. & Coll. 199. 44 CRABBS LAW OF REAL PROPERTY. pleted in tlie lifetime of the testator, who was the purchaser, is afterwards paid his purchase-money out of the personal assets, the simple contract cre- ditors of the testator shall stand in the place of the vendor, with respect to his lien on the estate sold, against the devisee of that estate,(M) although in Coppin V. Coppin(a^) it was holden that legatees could not stand in the place of the vendor with respect to his equitable lien, and in Pollexfen v. Moore(?/) it was said, in general terms, that this equity did not extend to third persons, being confined to the vendor and vendee ; but on this dictum of Lord Hardwicke see Austen v. Halsey,(z) Trimmer v. Bayne,(«) Mackreth v. Symmons,(6) Headley v. Readhead.(c) ^ -. 55. " Legatees have not so great a claim to this species of *equity L J as creditors, but nevertheless, in the case of assets descended, lega- tees will be permitted to stand in the place of specialty creditors, who have chosen to resort to the personal estate." (rf) On the other hand, where the estate does not descend, but is devised, whether to a stranger or to the heir taking as a devisee, and the question is between the legatee and devisee, the assets are not marshalled in favour of legatees, whether general(e) or specific legatees.(/)(l) 56. A distinction is also to be taken where a creditor has a lien on the real estate, for if it be a specific lien, as a mortgage, assets will be marshalled in favour of legatees, as well where the estate is devised, as where it des- cends, therefore if the mortgagee exhaust the personal assets, a pecuniary legatee shall stand in the place of the mortgagee upon the devised estate. (^) But if it be an equitable lien, such as a vendor has on the purchased estate for the purchase-money unpaid, it is now settled, after much discussion, that where the purchased estate has descended, pecuniary legatees have a right to stand in the place of the vendor. (/?) Where the purchased estate is de- vised, it is clearly settled, that a pecuniary legatee shall not stand in the place of the vendor upon the devised estate, (i) (w) Selby V. Selby, 4 Russ. 336. (x) 2 P. Wms. 291 ; S. C, Sel. Cha. Ca. 28. (y) 3 Atk. 273. (z) 6 Ve^ 475. (o) 9 Ves. 209. 0>) 15 Ves. 344. (c) Coop. 50 ; Cox's n. 1 to 2 P. Wms. 295 ; 3 Sugd. V. & P. 205 et scq., 10th ed. Id) Per Lord Eldon, C, Aldrich v. Cooper, 8 Ves. 396. And see Bowaman v. Reese, Prec. Chan. 578 ; Lutkins v. Leigh, Cas. temp. Talbot, 54 ; Hanby v. Roberts, Ainbl. 128; S. C, nom. Hamby v. Fisher, Dick. 105, where it was held that the legatees sliould not take cum onere. (r) Clifton V. Burt, 1 P. Wms. 678 ; Scott v. Scott, Ambl. 383 ; S. C, 1 Eden, 458 ; Ilanby v. Roberts, sup. ; Keeling v. Brown, 5 Ves. 359 ; Aldrich v. Cooper, sup. ( /) Hazlewood v. Pope, 3 P. Wms. 324. But see Long v. Short, 1 P. Wms. 403, where it was decreed that assess should be so far marshalled that the devisee and specific legatee should, upon failure of the personal estate, contribute, each in proportion according to his respective gift, to the payment of the specialty debt. See, also, Irvin v. Ironmonger, 2 RUSS.&, My. 531. is) Lutkins v. Leigh, Cas. temp. Talbot, 53 ; Forrester v. Leigh, Ambl. 171. (//) Sproule V. Prior, 8 Sim. 189, overruling Coppin v. Coppin, 2 P. Wms. 296. See also the dictum of Lord Hardwicke in Pollexfen v. Moore, ante, tj 54, in respect of creditors. (t) Wyth V. Henniker, 2 My. & K. 635. See also Selby v. Selby, sup. (1) S. P. Mollan v. Griffith, 3 Paige, C. R. 404. I RECIPROCAL CONVERSION OF MONEY AND LAND. 45 57. *In some other cases it has been held, that assets shall be mar- (-*.,-, shalled in favour of legatees, as where the real estate is subjected by L -' the testator to the payment of all his debts, the legatees are allowed to stand in the place of the specialty or simple contract debtor, to the amount of the personalty exhausted by the debts, and to receive their legacies out of the estate devised. (^) So, where some legacies are charged on the real estate, and others not, the assets will be marshalled in favour of the legatees whose legacies are not so charged. (^) 58. A legacy given to charitable uses is void by the 9 Geo. 2, c. 36, if made payable out of real estate, (?n) or out of the produce of the sale which the testator has directed to be made of the real estate ;(n) so, where the legacy is bequeathed out of personalty, and out of the real estate, as an auxiliary fund, it is so far void as it is given out of the realty. (o) Formerly, a distinc- tion was taken between a particular legacy and a residuary gift, and assets were marshalled in favour of the former ;(;j) but by a series of cases, it is now settled that there can be no marshalling assets in favour of a charitable bequest, as this would be an evasion of the statute. (y)(l) 59. A wife's paraphernalia are liable to the debts of the husband, but a court of equity will marshal his assets in her favour; and where the per- sonal estate has been exhausted *by specialty creditors, will decree ._ -. her to stand in their place, and receive to the value of the parapher- "- -^ ■ nalia out of the real estate descended,(r) or out of real estate devised bj' the husband for the payment of his debts ;(s) for a claim of paraphernalia shall not be disappointed by the effect of the option of a creditor having a double fund to resort to in the administration of asse^s.(?)(2) SECTION III. RECIPROCAL CON\'ERSION OF ONE INTO THE OTHER. § 60. Rule in Equity. (A) Hanby v. Roberts, sup. ; Foster v. Cook, 3 B. C. C. 347 ; Bradford v. Foley, Id. 351 ; and Webster v. Alsop, Id. n. (/) Hanby v. Roberts, sup. ; Bligh v. Darnley (Earl), 2 P. Wms. 619 ; Bonner v. Bonner, 13 Ves. 37'J. (/w) Arnoid v. Chapman, 1 Ves. 108 ; cited 3 B. & A. 150. (ft) Foster V. Blagden, Ambl. 704 ; Hillyard v. Taylor, Id. 713. (o) Attorney-General v. Weymouth (Lord), Ambl. 20. Ip) lb. ; and Attorney-General v. Mountnorris (Lord), 1 Dick. 379. 0/) Mogg V. Hodges, 2 Ves. 52 ; S. C, Cox, 9 ; Attorney-General v. Tyndall, Ambl. 614 ; S. C, 2 Eden, 207 ; Foster v. Blagden, sup. ; Fory v. Fory, 1 Cox, 163 ; Ridges v. Morris- son, Id. 180 ; Attorney -General v. Hurst, 2 Cox, 364 ; Makeham v. Hooper, 4 B. C. C. 153 ; Hobson v. Blackburn, 1 Keen, 273 ; Williams v. Kershav.', Id. 274, n. (»•) Snelson v. Corbet, 3 Atk. 369. (s) Inclcdon v. Northcote, Id. 430. (0 Aldrieh v. Cooper, 8 Ves. 397. (1) S. P. in West v. Methodist Church, 1 HofF. 203, for the same reason, i. c. a statute of mortmain. (2) Mass. R. S. ch. 65, s. 4. 46 crabb'slaw of real property. I. ©onbccsfon of i^oncw fnto 2.anti. 1. How the Conversion may he effected. § 61. Effected in various Ways. When complete or otherwise. In the case of a Will. 61. Not necessary for Money to be ac- tually laid out. Money may remain in Hand or be put out to Mortgage. 2. Effect of the Conversion. 62. General Rule. In case of Dissent. Exceptions. 62. On failure of Heirs not to escheat. 63. In case of Purchase. 64. In case of Devise. 3. Right of Election. 65. By Person who is complete owner. 1 67. By Tenant in Tail. 66. By Persons under Disabilities. | II. ©onbcrsfon of 2.:Tn^ into Mone». 1. How effected. 69. By Deed. By Contract. Trust by Will. 69. Partial Conversion. Devise to Executors. [*43] *2. Effect of the Conversion. 70. As to the Devolution of the Property. I 73. Between Heir and Residuary Legatee. 71. In cases of Devises to Executors. | 74. Between Representatives. 72. Questions between Heir and Next of; 75. Quality of Property resulting. Kin. 1 76. Time of the Conversion, Effect of. 3. Election. 77. Where devised in Trust to be sold. III. Conbccsion in cases of Enf mts, Hunatics, antJ iJartncrs. 78. Rule as to Infants' Estates. I 78. Partner's Estates. Lunatics' Estates. § 60. It is a rule in equity, that what has once been agreed or directed to he done, ought to be done, and what ought to be done, shall be considered as really done. (h)(1) According to this rule, therefore, it is that money stipulated to be converted into land, shall be considered as land ; and on the other hand, land stipulated to be converted into money is considered as money. This subject, therefore, branches itself into two heads, conversion of money into land, and land into money, which, although having many (m) 1 Bl. 129 ; Walker v. Denne, 2 Ves. Jun. 183. (1) Peter v. Beverley, 10 Pet. 563. Craige v. Leslie, 3 Wheat. 578. Burr v. Sim, 1 Whart. 262. CONVERSION OF MONEY INTO LAND. 47 points in common, cannot be set forth clearly but by considering them distinctly ; to Avhich may be added, as a third head, conversion either way, in cases of infants, lunatics, and partners. I. ©ou^ersioit of fHoiify mto aautr. This is to be considered, 1. As to how the conversion is effected, and when deemed complete ; 2. Effect of the conversion ; 3. Right of election. *1. Hoio the Conversion is effected. [*44] 61. Money may be converted into land in different ways, declaring the intention of the parties, as by way of contract,(x) by marriage articles,(^) and by will.(z) Where it is by contract or by a settlement, it must, in order to be complete, be a contract which equity will enforce ; therefore, if the terms of the contract cannot be ascertained, («) or there have been fraud, (6) or, if there be an option left in either of the parties to complete or recede from the agreement at his discretion, in either of these cases the property will remain unaltered, as if no stipulation had been made ;(c) but in respect of an option, it is to be observed, that if trustees in a settlement are directed to lay out money in land, upon the request of the parties, this latter part of the provision does not make it optional in them to lay it out or not, in the event of no request being made.(rf) In the case of a will, that being ambulatory, the conversion is not complete until the testator's death, and until then the money will be deemed personalty, notwithstanding a devise to lay it out in land.(e) So, where it is by will, the will must decisively fix upon the money the quality of land ;(/) and where it is a deed, the deed must do the same.(/) Where the conversion is in other respects complete, it is immaterial Avhether the money be actually laid out or not,(^) unless when the money is in the hands of the person who would have been entitled to the land,(/^) or the *parties died before the expiration of the time, when according p 4(45-1 to the covenant, the money ought to have been invested. (/) L So, it is immaterial if the money remain in the hands of the stipulator •,{k) or if, instead of being laid out, it be put out to mortgage.(/) So, where the money is in the hands of trustees for the purpose of being laid out,(7n) and (z) Edwards V. Lady Warwick, 2 P. Wins. 171; Fletcher v. Asliburncr, 1 B. C. C. 497, recognised in Wlieldale v. Partridge, 5 Ves. 396. (//) Kettlcby V. Atwood, 1 Vcrn. 298; Lancy v. Faircliild, 2 Vcrn. 101 ; Thornton v. Hawlcv, 10 Ves. 1.30. (s) Lecliuierc v. Carlisle (Lord,) 3 P. Wms. 228. {a) Savage v. Carroll, 1 Ball & Bea. 26.5. {h) Philips V. Bucks (Duke,) 1 Vern. 227. (r) Walker v. Denne, 2 Ves. jun. 170, recognised in Wheldale v. Partridge, 5 Ves. Jb8. (./) Thornton v. Hawley, 10 Ves. 130. (f) Bcauclerk (Lord) v. l^lcad, 2 Atk. 167. (/) Walker v. Denne, sup. (g-) Lechmere V.Carlisle, 3 P. ^^ ms. ^24. (A) Rashley v. Masters, 1 Ves. jun. 201. (() Chichester v. Biekerstafi; 2' Vern. 299, recognised and distinguished in Lechmere v. Carlisle, sup., and Pultcny v. Darlington, 1 B. C. C. 223. (/.•) Chaplin v. Horner,"l P.Wins. 483. (Z) Rashley v. Masters, 3 B. C. C. 99 ; S. C. 1 Ves. jun. 201. (m) Thornton v. Hawley, sup. 48 CRABBS LAW OF REAL PROPERTY. SO where the stipulatioa is, that the money should be laid out with the consent of the husband and his wife ; yet, if one die before consent given, the money will still be bound by the stipulation. (n) So, where there is a covenant to lay out money in land, it makes no dilierence that the covenant is a voluntary one.(o) 2. Effect of the Conversion. 62. As a rule money stipulated to be converted into land, becomes clothed with all the properties of land, but this rule is subject to distinctions arising from different circumstances, particularly whether the conversion has been complete or not, and the Uke. One of the principal consequences of money being thus converted, is, that it will descend to the heir of the owner, instead of going, as it otherwise would to the personal representatives. (/))(!) The exceptions to this rule are where the contract was such as could not be enforced in equity,(5) or ^ the parties have died before the time for completing the *conver- L -' sion ;(r) but it is not necessary, where money is agreed or directed to be laid out in land, that the deed or ^x-ill should decisively and definitely fix upon the money the quality of land, therefore, where a testator directed money to be laid out in freehold or leasehold land, emd the money was not laid out, it was held that the Crown, on failure of heirs, had no equity against the next of kin to have it laid out in real estate in order to claim it by escheat, (s) 63. If the owner of money, directed to be laid out in land, die before the proper conveyances are perfected, the contract must notwithstanding be com- pleted. (A So, money stipulated to be laid out in land was not deemed per- sonal assets for the payment of debts before the 3 & 4 W. 4, c. 104.(w) So, if money thus circumstanced happen to be invested in mortgage, and the mortgagee die, and the money be repaid, it must be paid to the heir and not to the executors of the mortgagee.(M) So, too, a husband will be tenant by the curtesy of money agreed to be invested in land, and therefore entitled to receive the dividends or interest during his life,(a:) but a woman is not in the like case entitled to dower.(i') 64. Money articled to be laid out in land will pass in a devise under the (n) Symons v. Ratter, 2 Vera. 227. (o) Edwards v. Wannck (Lady,) sup. (p) Cunningfham v. Moody, 1 P. Wms. 176; Simonds v. Rutter, 2 Vem. 227 ; S. C, Prec. Chan. 23 ; Lancy v. Fairchild, 2 Vera. 101 ; Edwards v. Warwick (Lady,) 2 P. Wms. 171. See also Kettlebv v. Atwood, 1 Vera. 228 ; Ling-uen t. Sourav, Prec. Ciian. 400 ; S. C, nom. Lingen v. So'wray, 1 P. Wms. 172 ; GLlb. 325 ; 10 Mod. 39. 528. (q) Plullips V. Bucks I'Duke,) 1 Vern. 227 ; Walker v. Demie, 2 Ves. jun. 170; Savage V. Carrill, 1 BaU & Bea.'265. (r) Chichester v. Bickerstaff, 2 Vera. 295. And see supra, 5 61. Is) Walker v. Denne, 2 Ves. jun. 170. (/) Pembroke v. Baden, Gilb. Chan. Rep. 115. (u) Baden v. Pembroke (Earl.) 2 Vera. 52 ; Lawrence v. Beverley, 2 Keb. 841, cited 2 Vem. 55. (or) Sweetapple v. Binden, 2 Vern. 536 ; Otway v. Hudson, Id. 583 ; Cunningham v. Moody, 1 Vez. 176. (1) Peter v. Beverly, 10 Pet. 563. C K V E R S I K OF MONET INTO L A K D. 49 general words, " lands, tenements, and hereditaments ;"(y) and alihong-h a fine could not have been levied if money were so circumstanced, yet, where a feme covert entitled to such money came into court, and was separately examined, analogous to the form of a fine at law, the coim would decree it to her.(r) »3. Ri2ht of Election. [*47] 65. "Where money is directed to be laid out in land, of which a person would be complete owner, if the investment were made, the court will in general allow the party to take the money instead of the land, provided he express an unequivocal intention so to do :^cr) and it seems that slight circum- stances are sufficient to indicate such intention, and therefore bequeathing it by a will calculated to pass personal property only, was held to be sufficient indication,(t) or describing it as " so much money directed to be laid out in land,"(c) or calling in the money and placing it out on other securities, which would carry it to the executors,(rf) or giving the trustees a discharge for the money as " so much monej" ;"(e) but a parol declaration has been deemed, sufficient evidence of such election. (y) 66. An infant is incapable of electing ;(§')(!) therefore, if an infant became so entitled, and died an infant, the monej- would, as land, descend to his heir, and not pass under a bequest of personalty in his will, (which he was capable of making before the late Wills Act, 7 W. 4 & 1 V. c. 26.) A feme covert before the 3 & 4 W. 4, c. 74. abolishing Fines and Recoveries, could not obtain money, articled to be laid out in land, in any other manner than bv consentinof in open court to take it as personal property. (A) 67. Before the 39 & 40 G. 3. c. 5G, repealed by 7 G. 4, c. 45. and both by the 3 & 4 W. 4, c. 74, s. 70, if the part}- being adult, could, by fine levied, acquire the entire interest in the lands when settled, (as tenant in tail with ♦immediate remainder to himself in fee,) the court would let ^ -, him take the money, if he should so elect ; but otherwise, if a L J recovery were necessarv. as in the case of tenant in tail, with remainder over.(n By the first of these statutes the court was authorised to order such money to be paid to the person who, as tenant in tail, could have barred the remainder by a recovery. As to the provisions in the last of these acts, see (»/) Linoen v. Sowray, 1 P. Wms. 172; Guidot v. Gaidot, 3 Atk. 254 ; Rasliley v. Masters, 1 Vcs. jun. 201. :) CunnLnffham v. Moody, sup. (a) Lingrn v. Sowray, sap. ; Benson v. Benson, 1 P. Wms. 130 : Edwards v. Warw ick (Countess,) 2 P. Wms. 175 ; Rashley v. Jlasters, 1 Vcs. jun. 204. (i) 1 B. C. C. 237 ; Ambl. -223. (c) Fulham v. Jones, 3 P. Wms. 221 : Cross t. Addenbroke, 3 Atk. 254. See also Rashley v. Masters, sup. Id) Lingen v. Sowrav, sup. (e) Chaplin v. Homer. 1 P. Wms. 4S3 ; Pultener v. Darlington (Earl,) 1 B. C. C. 224. (/) Bradish v. Gee, Ajnbl. 22. (g)'Sealy v. Jajo, 1 P. Wms. 389. (A) See supra, 6 64. (i) Short V. Wood, I P. Wms. 471 ; Edwards v. Warwick (Ladv,) sup. ; Oldham v. Hughes, 2 Atk. 453 ; Trafibrd v. Boelmi, 3 Atk. 447 ; Cunningham v. Moody, 1 Vcs. 176. 1 Robertson v. Stephens, 1 Ircd. 251. Burr r. Sim, 1 Wh. 265. Jllv, 1S46. i 50 CRABB's LAW OF REAL PROPERTY. Prec. in Conv. Append. No. X., 3rcl ed. ; and Dig. P. ii. tit. Fines and Recoveries. As to the conversion of money in cases of infancy, see post, § 78. II. (STouiJcrsiou of Jinnt} into J^onfi>. 68. The conversion of land into money may also be considered under the same three heads as before mentioned. (A; j 1. Hoiv ejected. 69. This conversion is effected in three ways : First, by deed, as where a person conveys his land to trustees for the payment of his debts, or other- wise ;(A Secondly, by contract, as where a vendor contracts to sell his estate ;(1 ) in which case, although the vendor dies before the conveyance, the property will be deemed converted from the time of the contract ;(/») Thirdly a trust to sell real estate may be created by will, and may cause a conversion, either for a particular purpose only, as to pay debts or legacies, or both ;(n)(2) and sometimes the trust is to sell for general purposes, which has been termed a conversion " out and out."(o)(3) Very frequently, lands are devised ,„-, to executors *to sell; and a distinction has been taken as to when L -* they take an interest or have only a power. A devise of the lands to executors to sell is said to pass the interest in the land ; but a devise " that executors shall sell," or " that the lands should be sold by the execu- tors," is said to give them but a power ; a nice distinction, which has caused some discussion. (;;) * 2. Effect of the Conversion. 70. When the conversion of land into money has been completed, the money is clothed with all the properties of personalty ; therefore, where the will operated as a conversion of the real estate, the shares of persons, who were dead, devolved on their personal representatives. (5)(4) But many (fr) See ante, § 60. (/) Hewitt v. Wriglit, 1 B. C. C. 86. (m) Riploy v. VVatcrwortli, 7 Vis. 437. (n) Dixon v. Dawson, 2 Sim. & Stu. 327. (o) See Policy v. Seyniour, 2 You. & Col. 708. (/>) Sec 1 Inst. 113, a., and Hargravc's note thereon ; 1 Sugd. on Powers, 133, 6th cd. ; 1 Powell on Devises, 243, by Jarman. {q) Grieveson v. Kirsopp, 2 Keen, 653. (1) Hclfenslcin v. Wn;:rgoncr, 13 S. & R. 307 ; but not by an agreement with the tenant in common to effect a sale of both interests. Id. (2) Wright v. Methodist Ch., 1 Hoff. C. R. 219. Where it is not absolute but for parti - cular purpose, surplus is treated as land. North v. Valk, Dudley, Eq. Rep. 212 — 16. Burr V. Sim, 1 Wht. 262. ('.i) Proctor V. Frebee, 1 Ircd. 143, or a direction to pay over the residue. Burr v. Sims, 1 Wht. 252. Or if blended with personalty, and treated as a connnon fund. Id. Nor will a mere direction to settle a surplus as the land was devised, impress it with the character of lind in the hands of the legatee. Wharton v. Shaw, 3 \V. & S. 126. (4) A husband would take as administrator to his wife. Reed v. Buckley, 5 W. &• S 517. And the court consider it done for tlie purpose of deciding all the estates taken and I CONVERSION OF LAND INTO MONEY. * 51 queslions have arisen, as to whether the conversion was complete or other- wise, and also as to the time when the conversion has taken effect. 71. Where lands are conveyed or devised to trustees for general purposes, that is, where the conversion, as before mentioned, is " out and out," and it appears clearly to have been the intention of the testator to impress on it the character of personal estate to all intents and purposes, the mere appointment of an executor will be sufficient to carry the property to him.(?-) Where the conversion is directed to be made for particular purposes, as the payment of debts and legacies, and the objects of the trust have been satisfied, or have failed, so much of it as has not been applied in satisfaction of the trusts, will result to the grantor in the case of a conveyance, (.s) or to the heir, or the residuary legatee, &c., as a resulting trust under a will ; in respect of which, however, many questions have arisen as to the intentions of the testator, *whether they were to convert the property wholly, ^_ -. or in part only. These questions have arisen between the heir and L -^ next of kin, between the heir and the residuary legatee, or between the representatives of these parties. 72. The cases as between the heir and the next of kin seem to turn upon the point, whether tlie testator meant to confine the conversion to the parti- cular purpose named or mentioned in the will, or whether the produce of the real estate should be taken as personalty, whether such purposes lake effect or not ; for unless the testator sufficiently declared his intention, that in all cases, and to all purposes, it should be converted, so much thereof as was not efleclually disposed of would result to the heir.(/)(n The case of Ogle V. Cook,(t<) seems to be the only one where the decision was in favour of the next of kin and against the heir ; and that decision rested on the expressed intention of the testator. As a rule, it has been laid down, and rather strictly adhered to, that where it is a measuring cast between an executor and an heir, the heir shall have the preference :(f) for an heir shall not be disin- herited, unless by express words or necessary implication ;[x) and it seems now to be settled, that unless the next of kin is made a specific donee, he never can stand in competition with the heir. 73. As between the heir and the residuary legatee the rule has been somewhat relaxed in favour of the lalter,(y) *and in a subsequent ^^.-, -i case it has been held as settled that if an estate is devised, charged L -* (r) Berry v. Uslier, 11 Vcs. 91. (s) Hewitt v. Wright, sup. (() Randall v. Bookey, Prec. Chan. 162; Eml)lyn v. Freeman, lb. 540; City of London V. Garway, 2 Vern. 571 ; Cruse v. Barley, 3 P. Wms. 20 ; Stonehouse v. Evelyn, lb. 252; Digby V. Lcgard, cited in Mr. Cox's note to Cruse v. Barie}-, sup. ; Arnold v. C'liai)nian, 1 Ves. 108: Accroid v. Smitlison, 1 B. C. C. 503; llobinson v. Taylor, 2 lb. 581); Spink v. Lewis, 3 lb. 355 ; Chitty v. Parker, 4 B C. C. 411 ; S. C, 2 Vcs. jun. 271 ; Wilson v. Major, 11 Vcs. 205 ; Hill v. Cock, 1 Ves. &. B. 173; Dixon v. Dawson, 2 Sim. A: St. 327. (a) Cited I B. C. C. 502. («) Lingen v. Sowray, 1 1'. Wms. 172. (x) Gascoigne v. Barker, 3 Atk. 823 ; Amplilett v. Parke, 2 My. i^ K. 73. ((/) Mallabar v. Mallabar, Ca. temp. Talb. 79 ; Duroure v. Motteu.^, 1 Vez. 320. the validity of the bequests. Gott v. CoV.;, 7 Paig. 534. Wliarton v. Sliaw, 3 W. tk S. 124. (1 ) ante, 48, n, 1. 52 • crabb's law of real property. with legacies ihvd feil, the devisee or residuary legatee and not the heir should have the benefit, (.cr^i on the authority of which cases it was held in Amphlett v. Parke, (a) that where the terms of the will afforded the inference that it was the testator's intention that the produce of his estate should have all the properties of personally the legatees should have it to the exclusion of the heir, but this decision was reversed on appeal. (^) 74. The third class of cases is between the representatives of persons entitled under a will, and the rule is that such persons shall take money as land or land as money, according as the person, whose representatives they are, would have taken it, had the title accrued in their lifetime. (c) 75. Another question connected with this subject is whether the property so resuking shall be considered as land or money, in the hands of the heir. In one case where a testator directed his personal estate to be convened into real, for several purposes, some of which failed, it was held that the heir was entitled to take the residue, after satisfying the purposes which could take effect, not as personalty impressed with the character of really. (J) In cases of converting land into money, where the question has more I'rtquently arisen, it has been expressly held, where the trust was created by a convey- ance, that the surplus after satisfying the purposes of the trust should result to the grantor as personally and go to his executors. (c) So, where a man ^,_ -, contracts to sell his land and dies before the conveyance, *the heir L "^ J shall convey the land, and the money shall go to the executor, (/) Where the trust has been created by a will the rule appears to be, that where there is a partial fiiilure only of the purpose to which tlie produce of the sale is directed to be applied, the heir takes the benefit of such partial failure as personal estate ; but if there be a total failure of the purposes, the devisor's intention as to a sale is to be considered as revoked by the events which have happened, and the heir takes the land as real estate.(^) Where, however, a discretion was vested in trustees to convert realty into personalty in favour of next of kin, and the trustees did not exercise that discretion, the ("Jourt exercised it for them so far as to declare who were the parties that were entitled to take, namely the testator's next of kin, but that such part of the fund as consisted of real estate should be distributed as realty, so as to descend to their heir-at-law. (A) 70, As to the time of the conversion, to be complete, it must take place in the lifetime of the o\vner,(l) but if he contract to sell his land, that will be a (z) Kcnncll v. Abbott, 4 Vcs. 803. («) 1 Sim. 275 ; S. C, 4 Russ. 75. (h) R. C, 3 R. & My. 231. (/•) Scudiinorc v. Scui inioro, Free. Clian. 543 ; Flctciicr v. Asliburncr, 1 U. C. C. 497 ; I'l,im!r:'.n v. Flanaffan, cited lb. 503. .'-/) M rcford v. Ravinfiil), 1 Bcav. 491. (0 Hewitt v. Wriebt, 1 B, C. C. 86. ( f) iJidcn V. Pcmbrolic, T.ady,) 3 Vcrn. ."SS; S. C, ."3 Clian. Ucp. '2X1. (7. (in) Bulk v. Scort, 5 Madd. 4;i3. (n) AYright v. Rose, 2 Sim. & St. 323. (o) Kirkman v. Miles, 13 Vcs. 383. (/;) Dceth V. H;il^, 2 Molloy, 317; and see Walker v. Dennc, 2 Ves, 170. ((j) Davers v, Folkes, 1 Eq. Cas. Abr, 396- Allison V. Wilson, 13 S, & R. 332 ; Simpson v. Kclso, 8 W. 247 ; but if directed on an event, it will not l>e so considered until tliat hapj)en. Wright v, Methodist Chureh, 1 HolT 21i) ; 10 Pet. 5t>3 ; G )shart v. Evans, 5 Wht. 65i ; when it hapjxjas it becomes money. WJiarton v. Shaw, 13 S. & R. 332. (1) But an authority by private act works no converjsion. Tiigliman's Estate, 5 Wht. 41. Gest V. Flock, 1 Green. C!i. R. 115. (2) A mortgage of, by the person entitled to the money, is an election, and it cannot bo disturbed. Gest v. Flock, 1 "Green C. R. 11.5; or a devise as a house. Burr v. Sim, I Wht. 265; or a conveyance by feme discovert, who had the separate use under the will; Smith V. Starr, 3 ^VhU ti2. It is the clcetion, not the right to make it, which impresses the property with its former ciiiracter. Craigc v. Leslie, 3 Wiicat. 378-SG. (3) When made, it becomes a new acquisition for the purpose of descent. Burr v. Sim, 1 Wilt 266. Simpson v. Kelso, 8 W. 262. (4) The Court will consider ti^e conversion as made at the death of the testator, or within a year, so as not to interleie with the rights of third persons. Van Vechtca v. id. 8 Paige, 124. 54 CRABb's LAW OF RKAL PROPERTY. itself, which is only a trustee ;(r) but the reason AA-hj^ an infant's personal ^_ . -, estate, turned into real, was still considered personal, was on ^account L -'of the different ages at which (before the 7 W. 4 & 1 V. c. 26, pre- venting infants from making any wills,) an infant might dispose of his per- sonal and his real estate, and not in favour to one representative more than another ;(s)(l) but there were cases where the court deviated from that rule, where it appeared that it would be for the benefit of the party. (f) In the case of lunatics the first care is to provide for the maintenance of the lunatic, but it is a rule never to change his property, nor to alter the succes- sion of it, (?<)(2) and a committee is not authorised to purchase real estate with savingSj and so alter its nature, for land so purchased will be deemed person- alty ;(y) but the Court have allowed part of the personal estate to be laid out in improving the real estate, if the next of kin, who had an interest, did not shew any reason against it. (a;) The committee may, it seems, exercise the same power over a lunatic's estate, with regard to cutting timber, as the lunatic himself might have done ;(i/) but there is no equity for the heir, as against the personal represen- tatives, to have the surplus money, arising from the sale of timber, felled by the order of the Court, restored after the death of the lunatic ;(r) and the case is the same, where the produce of the timber has been applied in redemp- tion. (a) As to when the estate of the lunatic shall be deemed real or per- sonal, under 11 G. 4 & W, 4, c. 65, see Dig. p. i. tit. Lunatics, (^Rcncieal, Surplus.^ It is said in Philips v. Philips, (/>) that all property, whether real or per- ^__ -, sonal, whatever may be its nature, purchased *with partnership cap- L -^ ital for the purposes of the partnership trade, will have, to every in- tent, the quality of personal estate, and the same was laid down as the law in Fereday v. Wightwick,(c) recognising Townsend v. Devaynes.(rf)(3) (0 Ex parte Phillips, 19 Ves. 123 ; Ware v. Polhill, 11 Vcs. 278. (s) Pierson v. Shore, 1 Atk. 480. (/) Winchcl.-ca (Earl) v. Norcliffc, 1 Vcrn. 437 ; Ashburton v. Ashburton, 6 Ves. 6 ; Webb V. Shaftesbury (F.ord,) 6 Madd. 100. (m) Ex |>artc Aniiandalc (Lady,) Ambl. ^ 81. (d) Audlcy V. Audley, 2 Vcrn. 1!)2 ; S. C, 2 Freem. 114, (x) Sergcson v. Sealey, 2 Atk. 413. (y) Ex parte T.udlow, 2 Atk. 407. (z) Ex parte Bromfield, 3 B. C. C. 510 ; S. C, 1 Vcs. juii. 4.53 ; Oxendon v. Compton (Lord,) 4 B. C. C. 231 ; S. C, 2 Vcs-. jun. 69. (a) Exparte Piiilli|)s, 19 Vcs. 118 ; and sec Ware v. Polhill. sup. (6) 1 My. & K. 6G3. (r) 1 R. & My. 45. (d) 1 Mout. Law of Part. Append. 97. Sec also Brooju v. Broom, 3 My. & K. 443. (1) The Courts in this country adopt tliis rule, looking to the benefit of the infant, not to the person in succession, thoug-Ii in most cases they are the same, whether the property be realty or personalty. Mills v. Denis, 3 J. C. R. 370. Stapclton v. VandcrJiert, 3 Dcss. 21 ; and this jwwer in Pennsylvania is vested in the Orphans' Court by the Act 1832, ^ 31.iii. (2) The interest of those in succession are not regarded, and the timber will be sold or conversion ordered as will most benefit the lunatic. In re Salisbury, 3 J. C. R. 347. (3) The right only exists in equity — at law the title passes to the partners as tenants in common, and by tlieir several conveyances. Sig-ourncy v. Mann, 7 Conn. 11. Delaney v. Hutchinson, 2 Rand. 183. And there must be superior equity (o induce the Court to inter- fere. Anderson v. WilUins, 1 Brock. 4G3. If purchased with partnershi[) funds and for partnership purposes, the Court will, as Iwtwccn creditors oi'tiio firm aiul separate creditors, consider it j>ersoual property, nnil iho joint creditors as having a priority. Sigourncy v. Mann, sup. Forde v. Hcrron, 4 Munt'. R I G H T S O F T II E H E I R, K T C. 55 So, in Morris v. Kearsley, real estate held for partnership purposes was de- clared to be in the nature of personal estate ;(e) but in earlier cases it had been decided that the user and enjoyment of freehold property for partner- ship purposes, and an agreement between the co-partners to hold the property in trust for the co-partnership, would not alter the descendible character of the real estate, where the agreement was not so express as to amount to a conversion of the property into personalty. (/) In Ripley v. Waterworth the real property was held to be converted, because, on the construction of the deed, it appeared that the parties had contracted that when the partnership determined the property should be converted to all intents and purposes ;(,§•) so, if the property held by partners is not used for partnership purposes it has been held not to be converted. (A) As to shares in companies, see infra, § 83. *SECTION IV. [ *56 ] MISCELLANEOUS POINTS OF DISTINCTION BETWEEN REALTY AND PERSONALTY. I. erije Bi2!)t3 aiiTi mmutksot tlje 1J?cfc. 1 . Bights of the Heir. § 80. As to Conditions and covenants. | § 80. Taking advantage of Contracts. (e) 2 Y. &. Col. 139. (/) Tliompson v. Dixon, 3 B. C. C. 198; and that authority was followed in Bell v. Phyn, 7 Vcs. 453; and see Smith v. Smith, 5 Ves. 189 ; Balmain v. Shore, 9 Ves. 500 ; Stuart V. Bute (Marquis,) 11 Vcs.' 665 ; Crawshay v. Maule, 1 Swanst. 5iJl. (jt) 7 Ves. 4:?5. (A) Randall v. Randall, 7 Sim. 271 ; Cookson v. Cookson, 8 Sim. 539. 316. Richardson v. Wyatt, 2 Dess. 482; or, if there be a conversion by express agree, ment — as, tliat it is part of the capital, ut sup. Green v. Green, 1 Ham., Ohio, 5 13. Coles v. Willet, 15 John. 161. M'Dermott v. Laurence, 7 S. & R. 438. But there must be notice to affect third persons on the face of the deeds. Hall v. Henrie, 2 ^Vatts, 145. Forde v. Hcrron, ut sup. And the mere fact of a purchase with partnership funds, will not affect the right as acquired by the conveyance, for the jjartners have a riirlit to apply the property in that wajr. Id. Goodwin v. Ricliardson, 11 3Iass. 469. Nor if merely for the purpose of carrying on the trade. Edgar v. Doimelly, 2 Munf 387. The fact that tlic conveyance was not to tlie parties as partners, was relied on in M'Dcrmott v. Laurence and Forde v. Herron, as indicating an intention that tlie pro- perty was not to be converted. That the firm may follow moneys laid out in land by one partner, for the doctrine of resulting use, is well settled. Edgar v. Donnelly ut sup. Kistcr v. Kister, 2 W. 323, in the syllabus of v/liieh "not" is printed for "or." For they arc in the same situation as others, and that their creditors may do the same, not conflicting with the rules which pro- tect purchasers without notice, would seem to follow. Hale v. Henrie, being a case of a pur- chase. Leiscnring v. Blake, 5 W. 307. As the English doctrine is unnecessary here, as all lands are assets, and as entire justice between all parties may be done by this rule, so far as it does not conflict with other rights equally sacred, it will perhaps be found to be the best calculated to reconcile the c^ses, to hold the title to the land in all cases passes in default of express agreement as land, subject to tlie right of partners or their creditors to follow the purchase money into the land on the same terms and restrictions as in cases of trusts, so far as it may be necessary to do justice between the partners. « 56 crabb's law of real property. 2. Liabilities of the Heir. 81. Conditions and Covenants, j 81. Contracts or Agreements, II. flatters affcdfna tlje ?i}ac an^) Lition from tiiosc against whom such ancestors have no equity; that a purelias-er whose land was subjected to a charge for which his vendor was bound at tJic lime of the sale, can compel satisfaction from him, has been shov/n ante, 37, n. Cowdcn's Estate, 1 Barr, 267. (2) Tlie doctrine governing the case of coparceners, will generally apply in this coun- try where i;ll the children are heirs, whether males or females, Weiser v. Weiser, 5 Watts, 219. 60 CR abb's law of real property. principle, pipes for the conveyance of water have been held to constitute an interest in larid,(i<) and the reservoir with the water would all descend to the heir,(i") and shares in water-companies have been deemed real estates,(a'j(l) unless as is usuall}' the case, provision is made in the Act of Parliament -1 *^°^ making such shares personalty (^) and in Blight v. Brent, 2 L '^''' J Y. & Coll. 2G8, recog-nising- Weekly v. Weekly, cited 2 Y. & Coll. 281, and distinguishing it from the other cases, it v/as held, that the shares in the Chelsea WaterAvorks Company were personalty, although there was no provision in the Act making them so, on the ground that in the other cases before mentioned, the corporation had no power to convert the realiy into personally, but in this case they had the fullest power of managing the property entrusted to them in whatever way they thought best. Under the Statute of Frauds, contracts for the sale of growing grass have been held to be contracts for the sale of an interest in land ;(^)(2) so, a contract for the sale of growing \w\es ;(«) and so, atone time a crop of turnips, potatoes, or corn, were held to be interests in the land while growing, but not when they had ceased to grow.(6)(3) See further, Dig. P. ii. tit. Frauds (Statute.) In regard to the raleabilit_v of land, it is necessary to distinguish between an occupation of the land of another for a partial or temporary purpose, which is a mere privilege or easement, as a license to take stone from a quarry, or make a canal and the like, and the permanent interest in the land which the owner has, the former of which is not rateable, and the latter is, in respect of the value of the land. (c)(4) (u) R. V. Bath (Corporation,) 14 East, 609. (r) lb. ; recognised in R. v. Rochdale Waterworks Company, 1 M. «-^ S. 63 1 ; R. v. Chelsea Waterworks Company, 5 B. tfc Ad. loG; S. C, 2 Xev. &. Man. 765. (x) Dry butter v. Bartholomew, 2 P. Wms. 127 ; Townscnd v. Ash, 336 ; Stafford (Lord V. Buckley, 2 Ve?. 182. And see also Swainc v. Falconer, S!iow. P. C 207 ; Sandys (Lord) V. Sibthorpc, 2 Dick. 545. (j/) Drybuttcr v. Bartholomew, sup., Ex parte The Vauxhall Bridge Company, 1 Gl. «fc J. 101 ; Tlie Lancaster Canal Company, Mont. & Bl. 94 ; S. C, 1 D. &. C. 420. (s) Crosby V. Wadsworth, 6 East, 602; recognised in Evans v. Roberts 5 B. &, C. 832. («) Teal V. Aughty, 2 B. &. B. 99. (fc) Emmcrson v. Hcelis, 2 Taunt. 38. (c) R. V. Trent^aud 3Iersey Navigation Company, 4 B. &. C. 57 ; S. C. 4 D. & Ry. 47. (1) Shares in corporations, even thougli created for the mere purpose of holding real estate (such as canals, rail roads ice.,) are generally considered personally. Trevor v. Perkins, 5 Wht. 255 : wh( re it was said a provision making the shares, in a particular canal, realty, was anomalous. But in \Vel!es v.Cowles, 2 Conn. 567, shares in a turnpiko company were considered realty. And sec 4 Dane Abr. 670, e. 130, x. art. 4, § 32. (2) So the privilege of cutting ',vood in a devise. Wright v. Barrett, 13 Pick. 41. And it was thouglit trespass quare cluusinn j'reoit would lie lor an injury to a right of the herbage, Rehoboth v. Hunt, 1 Id. 229. So, in a sale of growing timber. Putney v. Day, 6 N. H. 4306, and of anything, part of the inheritance, requiring force to separate it therefrom, as stones, gravel, "ic. Bostwick v. Leach, 3 Day, 484. The san.c v.as held of sea weed thrown on the sliore. Emans v. TurnbuU, 2 Johns. R. 322. (3) Penhallow v. Dwight, 7 Mass. 34. (4) A riu^ht to dig or^' on a tract of land, conveyed to A. and his heirs, for a valuable consideration, not appurtenant to land, is an incorporeal hereditament, not a license. Grubb V. Guilford, 6 Watts, 221 — 46. The distinction is between an eciscmcnt, wliich is a permanent interest in another's laud, and a license, which is to do an act or scries of acts without any interest in tlie land. Per Kent, in 3 Com. 4.52. So a bridge erectt d over a puhHc higliway, by the license of tlie legislature, is real estate, the k'^nd on wliich the abutments rested belonging to the owners of the bridge. Hurst v. Me aaon, 4 \\ . 346. STATUTES RELATING TO PROPERTY. 61 As to the tenures by which lands are held, the estates which may be had in ihem, or the title which there m;iy be to them, or the injuries affecting them, real property is so clearJy distinguished from personalty, as to render any close comparison between ihem unnecessary. *iv. ^tntutcs Brlatmg to Jyropcrtw. [*63] 84. By the first general Land Tax Act, 38 G. 3, c. 5, and continued Acts, a tax is imposed upon every species of real property, and on some kinds of personally. See Dig. P. i. tit. Land Tax. This lax, as regards personalty, is continued by the 3 & 4 W. 4, c. 98 ; but the annual tax on offices and other personal estate is repealed by the 3 & 4 W. 4, c. 12. By the 6 A. c. 18, provision is made against the fraudulent concealment of the deaths of cestui que vies. See Dig. P. i, tit. Estates (Life.) When an estate is made a qualification for office there is a considerable difference observed betv/een realty and personalty as to the amount, as in the case of commissioners of land-tax, trustees of turnpike roads, commis- sioners of sewers, justices of the peace, members of Parliament, and for- merly there was also a game qualification. See the respective titles, Dig. P. i., ii., iii. By the 9 G. 1, c. 7, the purchase of land to the amount of 30/. gives a right to a settlement in a parish, as by other Acts the renting a tenement or land to the value of 10/. gives the same rifrht. See Dig. P. iii. tit. Poor. By the early Mortmain Acts, corporations were prevented from disposing of their lands, but by subsequent Acts license is given to them to make such disposition for particular purposes, as for redeeming the land-tax, building churches, or providing church-yards, &c., making inclosures, or exchanges and the like, but the 9 G. 2, c. 36, has imposed restrictions on all persons, generally, making gifts of either lands or personal estate to charitable uses. See further. Dig. P. i,, ii. tit. Charities, Church, Common ; P. iii. .Mortmain, where also similar provisions will be found affecting femes covert, infants, lunatics, and persons having particular estates. *The periods within which real and personal property may be ^„ . -, recovered by action or otherwise, is now particularly defined by the L -• 21 J. 1, c. io, 3 & 4 W. 4, cc. 27. 42, and other Acts, see Dig. P. iii. tit. Limitations. So, as to the stealino- goods and chattels, and writings which may serve as evidence of title to real estate, see the Larceny Acts, Dig. P. i. tit. Larceny. And as to the abduction of heiresses, or Avomen generally, for their property, see Dig. P. i, tit. Abduction. As to advowsons, copyholds, leases, &c., see the respective titles, post, and Dig. P. i., ii., iii., tit. Advowson, Copyholds, Distress, Leases, Land- lord and Tenant. 62 crabb's law of real property. [*65] *C H A P T E R II. CORPOREAL HEREDITAMENTS. Sect. I. § 86. Lamd. Sect. II. § 88. Manors. Sect. III. § 89. Mouses. Sect. IV. § 90. Churches. Sect. V. § 93. Suit at mill. Sect. VI. § 94. CoMMOA'S AND WASTE LANDS. Sect. VII. § 96. Woods and trees. Sect. VIIU § 97. Forests and chases, &c. Sect. IX. § 93. Mines and minerals. Sect. X. § 102. Ways. Sect. Xf. § 101. Water. § 85. Corporeal hereditaments are as before observed (see ante, s. 2; matters of sense, and include all the different parts of land, in which accord- inrr to their several uses and natures persons have acquired distinct rights and interests that are recognised in law, and form distinct branches of real property. These may be considered under the following heads : — 1. Land ; 2. Manors; 3. Houses; 4. Churches; 5. Mills; 6. Commons and Waste T^ands; 7. Woods and Trees; 8. Forests, Chases, (fee; 9. Mines; 10. Ways ; 11. W^ater. What relates to tenures, estates, titles and injuries affecting corporeal hereditaments will be found in the subsequent books. [*66] *SECT10N I. LAND. (j 86. Sioiiificatioii of tlic word " Land." I. JJLMjcit passes l)» tl)c name cf Han't;. § 86. In Grants. | 86. In Devises. II. iiv U)i)at names tljc Soil toill ^jasi. ^ 87. Mcssungc or House. Cottapc. Wood, &c. Farm. Minos, &.C. Fold-course. 87. Park, &c. Water. Fisliery. Profits of the Land. Herbage, &.c. AV ]I A T PASSES BY THE NAME OF LAND. 63 § 86. Land, even in the limited sense in which it is commonly used, applies to all kinds of grounds, as meadows, pastures, woods, moors, marshes, furze, heath, &c. ; but not to rents and advowsons and such like things ;(«) and in this sense it is taken in a grant of land, but in writs and pleadings it is taken in a restricted sense for arable land only.(^) Of land, therefore, it will be necessary to consider : — 1. What passes under the name of land ; 2. By what names the soil will pass. I. S^S'Uat passes tJi) tUc name of Santf. By the grant of all lands, do pass arable lands, meadows, woods, moors, waters, marshes, furzes, &c.(c) It includes also castles, houses and other buildings erected thereon, ^therefore, if a man grant all his lands in ^ -. D., his houses there pass. (J) So, if a man let his land, open mines L -■ will pass ;(e) but not such as are not open,(e) unless he let the land with all the mines in it, and there are no open mines. (e) So, if a man grant his land, all the profits within the bowels of the earth will pass ;(/) as mines of tin, lead, iron, coal, &c. ;(/) so, water upon the land, and fish, and a piscary. (/) So, if a man demise the herbage of his woods, although the soil does not pass thereby, yet if he afterwards grant all his land in the tenure or occupation of the lessee, the wood passes. (5-) So, by grant of any land in possession, the reversion thereof will pass ;(1) sed secus as to the grant of land in reversion, for the land in possession will not pass. (A) And in such grants respect must be had to the estate of the grantor, therefore if a man seised in fee of some lands, have other lands for life or years only in a parish, and grants all his lands, tenements and hereditaments in this parish, and makes livery of seisin of the lands, whereof he is seised in fee in the name of all the rest, no more will pass than the lands whereof he is seised in fee, for otherwise it would be a forfeiture for those lands ;(«) but wherever no forfeiture would be occa- sioned, leasehold lands held with, and reputed part of a freehold estate, would pass by the conveyance of the freehold by force of the general words, " all meadows, lands, &c., to the said freehold belonging or appertaining."(/c) In a devise, greater latitude is given to the construction of the words, therefore, where one devises all his freehold houses in A., and has none but leasehold houses there, the leaseholds shall pass ; sed secus in a grant ;(/) and in a devise such a description will be deemed sufficient, by which - («) 1 Inst. 4 ; Shep. Touchst. 91. (h) Silly v. Silly, 1 Vent. 260. (c) Perk. gcct. 114. {d) 2 Roll. Abr. 57. (e) Astiy V. Ballard, 2 Lev. 185. ( /") 14 H. 8, 1 ; 1 Inst. 4. (2-) 1 Inst. 4, b. ("/') Liford's case, 11 Co. 47. (i) Shop. Touchst. 92. {k) Doe v. Williams, 1 H. Bl. 25. (/) Day V. Trig-, 1 P. Wms. 286. See also Rose v. Barflet, Cro. Car. 292 ; Danes v. Gibbs, 3 P. Wms\ 26 ; Knotsford v. Gardiner, 2 Atk. 450 ; Doc v. Williams, sup. ; Randal V. Riccardson, 1 H. Bl. 26, n. a. (1) Grant of all the sliare and interest, passes estate in possession and reversion. Sowle V. Sowle, 10 Pick. 377. 64 crabb'slawofrealproperty. ■*pa 1 *^^^^ intent of the devisor may be collected ;(7??) if therefore, he L J devises all his real estate, copyhold lands will pass ;(n) and money directed to be laid out in land will pass in a devise, by the words " all my lands, tenements and hereditaments whatsoever and wheresoever."(o)(l) So, if land be granted to a man, impliedly a way will pass, as where one acre is granted in the midst of tv»'-enty, the grantee may pass over the lands of the grantor to his own land w^ilhout being a trespasser. (/>) It. ^1^ tolieit nnmrs die ^oil WM ^nnn, 87. By the grant of a messuage or house, the orchard, garden and curti- lage occupied therewith, will pass ; ((7) (2) sed contra as to the garden ;(r) and so, an acre or more may pass by the name of a house, (s) So, by a devise of a messuage or house, land will pass ;(^) but what shall be said to pass by a devise is a question of intention ;(w) and unless it clearly appears that the testator meant to extend the word "appurtenances" beyond its tech- nical sense, lands usually occupied with a house will not pass under a devise of a messuage with the appurtenances, (f) particularly if the land is at a distance. (zf>) A cottage is a little house without land, and by that name a little dwelling- -. house without land will pass ;{x) it *was, however, the purpose of L -J the .31 Eliz. to prevent the practice of building cottages without land, but that statute is now repealed. (a) By a grant of wood it is said that the land passes. (6) In Whilster v. Paslow(c) it was held that by an exception in a lease of " all woods, under- woods, coppices, and hedge-rows," the soil itself is excepted, but by an ex- ception of " all timber trees," no soil is excepted but that in which they grow; and in Pincomb v. Thomas(f?) a sale of «'all saleable underwoods growing" does not pass the soil. (3) The word "farm" properly signifies a capital or principal messuage, and (ot) Dy. 280, b. (n) 2 Eq. Ca. Ab. 234 ; but sec Haslewood v. Pope, 3 P. Wms. 322. Sec also Lane v. Stanhope, 6 T. R. 345 ; Doe v. Lucan, (Earl), 9 East, 448. (0) Rashley v. Master, 3 B. C. C. 99. (p) F. N. B. 183 ; Shcp. Touclist. 96, (N. B.) (7) Hill V. Grantre, Plowd. 170; Garden v. Tuck, Cro. El. 89; S. C., nom. Chard v. Tuck, 3 Leon. 14 ; 1 Inst. 5, a, .56, b ; Bcttisworth's case, 2 Co. 32. See also Br. Feoti". 53. (r) Kcilw. 57 ; Moor, 24, pi. 82. (s) 1 Inst. 5 b. (0 Doe V. Collins, 2 T. R. 502 ; Doc v. Martin, 2 Bl. 1148. (m.) Gulliver v. Poynt7,, 2 Bl. 726; S. C, 3 VVils. 141. (m) Doc v. N'orton, 1 B. & P. 53 ; Doe v. Lucan, (Eirl), 9 East, 448. See also 2 Saund. 401, Wms. Ed. (?<>) Hearn v. Allen, Cro. Car. 57 ; S. C, Hutt. 85. (x) Shep. Touchst. 91. In) See Dig. P. i. tit. CoUagfcs. (/>) 1 Inst. 4, b; Ives and Synic's case, 5 Co. 11 ; but see Bro. Grants, 167. (c) Cro. Jac. 487. {d) Id. 524. (1) The election, not the right to elect, reconverts property into its original state, after having been converted by devise or contract. Craig v. Leslie, .3 Wheat, 556 ; ante, 52, n. 2. (2) Homstcad. Woodman v. Lane, 7 N. H. 245. (3) Ante, 19, n. 1. BY WHAT NAMES THE SOIL WILL PASS. 65 ■X great quantity of demesnes thereto belonging, and by that name houses, lands and tenements might pass ;(e) but in its modern acceptation, it is taken for that which is held by a person standing in the relation of tenant to a land- lord ;(§•) and the 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) So, by the grant of all farms, leases for years may pass.(i) By the name of mines or minerals of lead, &c. the land itself shall pass in a grant if livery be made, and it might formerly be recovered in an assize ;(A') but see 3 &. 4 W. 4, c. 27, abolishing these real actions. Dig. P. iii. tit. Limitations ; and so, by the grant of a fold-course, it is said that lands and tenements may pass.(/c) So, if a man have a forest, park, chase or warren in his own ground, and he grant the same, hereby not only the privilege, but the land itself passes ;(/i) but if the ground be another's, or if it be his own, and the grant be only of the game, &c. the soil itself will not pass.(/c) If a man grants aqiiam suam the soil shall not pass,(l) but *the ^-^.y^ -i piscar)'' only ;(/) but by the name of a pool or pit the water and land L -* will both pass.(??i)(2) Whether by the grant of a several fishery the land passes is not quite settled. (n) Lord Coke lays it down, that it does not pass ;(o) but others maintain that one having a several fishery must be owner of the soil.(p) In Partheriche v. Mason, (7) it was held that where a man has a several fisherjs the presumption is that he is owner of the soil. As to the right of fisherj'-, which is an incorporeal hereditaments, see post, § 304. By a grant of the profits of the soil the land will pass, as, if a man grant all his meadows or all his pastures, the land passes, for what is land but the profits thereof ?(r)(3) But as to what was formerly understood by the ves- ture of the land, see Keilw. 48; 4 Leon. 43; Palm. 174; 0\v. 37. On the other hand, if a man grant the herbage of the land, the land itself will not pass ;(4) because the grantee has only a particular right in the land and shall not have the houses, trees, mines and other real things ;(.s) so, if a man grants a liberty to dig turves, the land shall not pass,(/')(5) (c) Plowd. 195 ; 1 Inst. 5, a. (g) Lane v. Stanhope (Lord), 6 T. R. 353. (//) lb.; see also Doe v. Lucan (Earl), sup. (i) Bro. Grants, 135. C^-) 1 Inst. 5, a. (Z) 1 Inst. 4, b ; Dav. 45. (m) 1 Inst. 5, a. (»i) Kinnersley v. Orpc, 1 Doug. 56. (n) 1 Inst. 4, b. ( p) Bro. Trcsp. pi. 42G ; Sniilli v. Kemp, 2 Salk. G37 ; S. C, 4 Mod. 186 ; S. C, Cartli. 385. (7) 2 Chitt. 658. (r) 2 Plowd. 169 ; 1 Inst. 4, a. (s) Moor, 355, pi. 483. (<) Plowd. 541 ; Wilson v. Mackrcth,3 Burr. 1826 ; Crosby v. Wadsworth, 6 East, 606. (1) B}' a grant including a river, an island therein docs not pass. Jackson v. Halstcad, .5 Cow. 219. (2) It was held in Hart v. Hill, 1 Wht. 124, where the pool was below low water mark, that a devise of a fishing place passed no right to tlic soil of the adjacent land, but such a right only as was essential to the exercise of the devise ; but here there was no ownership in the soil of the pool. (3) Reed v. Reed, 9 Mass. 372, Stewart v. Kcnower, 7 W. & S. 288. (4) Rehoboth V. Hunt, 1 Pick. 224. Clap v. Draper, 4 Mass. 26G. (5) That 100 acres should be left common for the use of the town for building stonea, t!ie land does not pass. Worcester v. Green, 2 Pick. 425. July, 1846 5 66 crabb's law of real property. [*71 ] *SECTION II. MANORS. § 88, Definition. Reputed Manor. Manor cannot be divided. § 88. What passes under the Word, Advowson. Lands. § 88. A manor is a tract of land originally granted by the king to a person of rank, part of which was given by the grantee to his followers, and the rest he retained under the name of his demesnes, and that which remained uncultivated was called the lord's waste and served for public roads and for common of pasture for the lord and his tenants. A manor consists of demesnes and services ; whenever the demesnes are severed from the manor, or the services become extinct, then the manor itself is destroyed ;(m) but although many manors have been thus destroyed, yet they continue to be called manors, and a reputed manor will pass in a con- veyance by the word " manor."(a') And it is not necesary to prove a manor to be a continuing manor for all purposes. (i/) Manors were formerly called baronies, and are still called lordships, and each lord or baron was empowered to hold a court called a court-baron, which was an inseparable ingredient of every manor; and if the number of suitors should prove not suflicient to make a jury or homage, that is two tenants at the least, the manor itself is lost.(;r) r *79 1 *■'"'■ '^ ^ settled rule, that a manor cannot be granted at this day, L J a manor therefore cannot be divided by the act of the part}^ for that would be to create a new manor. (o) And although a manor may not be divided by the act of the party, yet it may by act of law, if therefore upon a partition between parceners, parcels of the demesnes and services are allotted to each, each hath a manor, being in by act of law ;(/;) but otherwise joint- tenants, co-parceners and tenants in common fall within the rule that a manor cannot be divided by act of the party. (/;) AVhatever before the Statute of Frauds might pass by livery of seisin, either in deed or in law, might pass without deed ;(c) therefore not only the rents and services, parcel of the manor, might with the demesnes, as the principal and more worthy, pass by livery without deed, but all things regar- dant, appendant and a2:)purlenant to the manor, as incidents or adjuncts to the same, might with the manor, pass without deed.(c) But things which {u) Finch's ease, G Co. Gl. {x) Finch's case, snp. ; Tliinne v. Thinne, 1 Sid. 190 ; S. C, 1 Lev. 98. {yi Soane v. Ireland, 10 East, 2.59. See also Calth. Read. 13 ; Smith v. Smith, 2 Price, 104; Curzon v. Lomax, 5 Esp. 60; Steel v. Prickot, 2 Stark. 4G6. (j) Perk. sect. 670 ; Co. Cop. s. 31. And see Scriven on Copyholds, and Watkins on Copyholds. ('/) Acton's case, Dy. 288 ; Miirrel v. Smith, 4 Co. 24 ; S. C, Cro. El. 252 ; Mclwich V. Lntcr, 4 Co. 266 ; S. C, Cro. El. 103; Bright v. Forth, Cro. El. 442; Finch's case, sup. ; ftlabie's case, Winch. 237 ; Lord North and Lady Dacro, Cary, 25 ; Brown v. Gold- smith, Moor, 876; S. C, 1 Browal. 175 ; S. C, Hob. 108 ; Wheeler v. Twog-ood, 1 Leon, lis ; Lemon v. Blackwell, Skinn. 191 ; R. v. Buccleuch (Duchess), 6 Mod. 151 ; but see Kitch, 7 ; Harris v. Haics, Cro. El. 19 ; Morris v. Smith, Cro. El. 39 ; S. C, Ow. 138 ; S. C, nom. Marshc and Smith's case, 1 Leon. 26 ; Denny's case, 2 Leon. 290 ; Neale v. Jackson, 4 Co. 26, where this rule is qualified. (6) Marshe and Smith's case, 1 Leon. 26. (c) 1 Last. 121, b. I WHAT PASSES UNDER THE NAME OF HOUSE. 67 are not parcel of the manor, will not pass by the grant of a manor, and therefore if one have a manor, and after purchase a warren to it, and then grant away the manor, the warren will not pass thereby ; and yet if by the union time out of mind they have gotten the reputation of appendancy, perhaps by the grant of the manor, cum perlinenliis, these things may pass.((/) By the grant of a manor also divers towns may pass ; so, an honour may pass by this name, and so also a castle and a ^hundred, and one *~q i manor also, that is parcel of another, may pass by the grant of that L ' ' "^ J manor, whereof it is parcel. So, on the other hand by the grant of an honour, may pass one or more seignories, manors and divers other lands ; and so a castle may contain one or more manors ;(e) but by a castle most commonly is signified no more than the house or building and the parcel of ground inclosed, wherein it stands. By the 17 E. 2, de Prserogativa Regis (see Dig. P. ii. tit. Advowson) the Glueen's grant of a manor will not grant an advowson appendant, without express mention of it ; but where the King granted a manor with all its appurtenances, as fully as the same came to and were possessed by him, an advowson appendant to the manor was held to pass ;(/) and the grant of a manor with advowsons, &c. thereunto belonging, was held not to extend to an advowson served in ancient times, though it was appendant three hundred years ago.(^) If a man seised of a manor in D., devises all his lands and hereditaments in D,, the manor being an hereditament shall pass •,{h) but if he has lands in D., not parcel of the manor, it seems doubtful whether the manor would pass by a devise of " all his lands" there. (A) SECTION III. HOUSES. § 89. How a House is protected. In Execution of Process. What is Burg-laiy. Statutory Provisions relating- to Houses. What included in a Messuage, § 89. Outhouses. Yards and Courts. Curtilage. Gardens and Orchards. Waste. § 89. As to what land passes under the name of a house or messuage, see ante, § 87. A house is so far protected by *law, that in the ^^ execution of civil process, the officer cannot justify the breaking open L ' -^ an outer door or window,(i) but he may break open inner doors. (A-) This privilege, however, extends only to the house of the party himself, not to the house of a stranger to which he has fled.(/) So, if an officer is locked in, he may justify breaking out.(m) So, if the party escape, after having {d) Plowd. 54 ; 1 Inst. 5, a. (0 Plowd. 54 ; 1 Inst. 5, a. - (/) Whistler's case, 10 Co. G3, a. {g) R. v. Durham, (Bn.) Com. 3G1, (A) Hazlewood v. Pope, 3 P. Wms. 322. (i) Fosi. 31!). {k) Lee v. Gansel, Cowp. 1. (/) 5 Co. 93. (m) 2 Hawk. P. C, c, 14, s. 11 ; 1 East, P. C, c. 5, s. 87. 68 CR abb's law of real property. been legally arrested, the officer may, upon fresh suit, break open even the outer door in order to retake him.(«) To constitute a burglary or breaking into a house, it must be the dwelling or resfular residence of the owner,(o) therefore a set of chambers in an inn of court or college is deemed a distinct dwelling-house for this purpose :(jo) so, even a loft, over a stable used as the abode of a coachman, may be bur- glariously entered :(5) but burglary cannot be committed in a tent or booth at a fair. See further 1 Chitt. Burn's Just., 534 et seq. ; also Dig. P. i. tit. Larceny; and also as to setting fire to houses, Dig. P. i. tit. Malicious Injuries ; as to destroying houses in riots, Dig. P. i., ii.,tit. Hundred; also as to what constitutes keeping house or departing therefrom under the bank- rupt laws. Dig. P. i., ii., tit. Bankrupt ; as to the provisions for regulating the building of houses, and the law respecting party-walls, see Dig. P. ii. tit. Building, also the last Building Act, 7 & 8 Vict. c. 84. A messuage was formerly thought to include more than a house, (r) but this is now overruled ;(s) but any prescriptive claim in respect of a messuage must be made in respect of an ancient messuage. (/) P ««- -1 *A messuage or mansion includes not only the dwelling-house L ' J but also all outhouses, as barns, stables, cowhouses, and dairyhouses, if they be parcel of the mansion, although they be not under the same roof or lying contiguous to it ;(i<) and the conveyance or demise of a messuage passes all under the same roof, unless at the date of the instrument, some part had been separated by a petition, and not occupied with the messuage for many years ;'f) and so a conveyance of a messuage " with the appur- tenances" will pass fixtures usually removable, unless they be parted there- from before the execution of the deed.(a:) But by the 7 & 8 G. 4, c. 29, s. 13. no building althoufrh within the same curtila] and also in the Vagrant Act, where it is provided that any per- son found lodging in any barn or outhouse, &c., without giving a satisfactory account of himself, shall be deemed a rogue and vagabond. An open build- ing standing out of the sight of the dwelling-house has been held not to be an outhouse within the Larceny Act ;(6) so, not a cart-hovel standing in a field away from other buildings ;(c) so, it seems a mill was not deemed an (b) Genner v. Sparkes, 1 Salk. 79 ; 1 Hale, 459 : 2 Hawk, snp. (0) FuUer's case, 2 East, P. C. 498. (p) 1 Hale, 556 ; 1 Hawk, c 38, s. 11. Iq) R. V. Turner, 1 Leach, 305. (r) Keilw. 57. (s) Doe V. Collins, 2 T. R. 498. See § 87. (0 Dunstan v. Tresicer, 5 T. R. 2 ; Stott v. Stott, ] 6 East, 343. And see further, post, § 459. (u) 1 Hale, 553, 559, (t) 2 Stark. 508. (x) 2 B. ic C. 76. See ante, § 19. (y) R. & R. C. C. 295. (z) 3 Inst. 67. («) See Dig. P. i. tit. Larcenv. (6) R. v. Ellison, 1 M. C. C. 336. (cj R. T. Parrot, 6 C. &. P. 402. WHAT PASSES r \ D E R THE NAME OF H T 5 E. 69 out-house before that *act.((f) Outhouses are also expressly pro- ^ ^^ -. tected, by the 7 & 8 G. 4, c. 31, from destruction by rioters.(e) L ' -^ Yards and courts commonl)- contiguous to houses, and going with them as appurtenances, are, if inclosed, protected by tbe above-mentioned Vagrant Act, and in the Highv\-ay Act the)' are also mentioned as places not to be taken for the widening of any highwa5-.(y") If a yard is common to several houses, let to different tenants, the possession thereof belongs to the landlord subject only to a right of way in such tenants. (s") An area, Hke a yard, is provided for in the Vagrant Act ; and stealing from an area is felony under the Larceny Act, but breaking into an area was not burglary at common law.(A) Curtilages are court yards, or back sides or pieces of ground lying near to and included within the same fence as the dwelling-house, which, it seems, may be sufficiently large to allow cattle to be levant and couchant therein, and therefore that a person may prescribe for common appurtenant in respect of a house and a curtilage. (/) As to the claim of an easement to let water flow into the back side of another person's house see Reynolds v. Clarke ;^/r) also post, § 418 ; and as to nuisances generally, see post, Injuries TO Things Real. A garden is parcel of a house and passes with it (/) so, by the grant of a messuage or house, the orchard, garden and curtilage pass without the word " appurtenances. "(7?i) B\- the Larceny Act steaHng an)- plant, root, &c. growing in any garden, orchard, nurser)'-ground, hot-house, green-house or conservatory, is a felony if a second offence, and *punishable as ^ -, larceny. Bv the Malicious Injuries Act any injury to the extent of l ' ' -^ one pound to any tree, sapling or shrub growing in any park, pleasure-ground, garden, orchard or avenue, or in any ground belonging to any dwelling- house, is made felony, and punishable with transportation for seven years. And the destroying or damaging any plant, &c. growing in any garden, «fcc. (see supra) is made punishable by a forfeiture of 20/. or six calendar months' imprisonment. By the Highway and Turnpike Acts provisions are made in favour of gardens and orchards as in the case of yards, ^n) A tenant is not at liberty to plough up strawberry beds in a garden being an injur)' to the inheritance, although such things may be appraised and paid for as between outcfoing and incomincr tenants. (o) but he mav remove trees growing in a nurser)'-ground in the necessar)' course of his trade ; see further, post, Waste. {d) 2 East, P. C. 1000 : 1 Leach, 49. (e) See J)\g. U ii- ti*- Hundred. (/) See Di?. p. ii. tit. Highways. {g) Herbert v. Thomas. 1 Gale. 53. (ft) R. V. Davis, R. & R. C. C. 32-2. (i) Sholes V. Hargreaves, 5 T. R. 4o. And see Eiaerton v. Selbv, 2 Ld. Rami. 1015 ; S. C, 1 Salk. 169. (t) 2 Lord Ravm. 1399. (i) Br. Feoffiii. de Terre, 53 ; Bettisworth's case, 2 Co. 32. (w) Plowd. 171 ; 1 Inst. 5, b ; 56, a, b. See ante, § 87. (n) See Dig. P. iii. tit Highways. (o) WethcreU \. Howells, 1 Camp. 227. 70 crabb's law of real property. SECTION IV. CHURCHES. § 90, What comprehended under the word " Church.." "Cliancel." Property in Pews. I\Iust be appurtenant to a House. Statutory provisions as to Churches. § 91. Interest in the Glebe. Titlies in respect of the Glebe. Emblements. 92. Freehold in the Churchyard. Right of Burial. Trees in the Churchyard. § 90. The word " church," with the rights thereto belonging, include the glebe, parsonage, and tithes ; the right of presentation to which, called an advowson, is an incorporeal hereditament. (/?) *A church is otherwise called a benefice, which is either a L -^ rectory or vicarage. By the grant of a rectory or parsonage Avill pass the house, the glebe, the tithes and offerings belonging to it ; and by the grant of a vicarage will pass as much as belongs to it, as the vicarage- house, &C.() Doe v. Fletcher, 8 B. &, C. 25. (s) Thurton v. Reisnolds, 12 Mod. 433. (t) Wats. CI. L. c. 33. (./) Clifford V. Wicks, 1 B. .S^ A. 498. (x) lb. 507. (y) 3 Inst. 202. (2) 3 Cro. Jac. 366. («) 2 Co. 105. (li) Barrow v. Kien, 1 Sid. 361 ; Hawkins v. Coleman, 3 Phill. 16. See also Blake v. Elsbornc, 3 Hagg-. 733; Fuller v. Lane, 2 Add. 425; Walter v. Sumner, 1 Consist. 317; Pettman v. Bridger, 1 Phill. 323; Hawkins v. Compiegno, 3 Phill. 11. BURIAL IN CHURCHES AND CHURCHYARDS. 71 to the pew ceases ;(c) although it should seem, that even a non-parishioner may claim an aisle or a chancel by prescription, (f/) but he must have such right as appurtenant to a house, although the house be out of the parish. (fj If a pew is rightly appurtenant, the occupancy of it must pass with the house, and individuals cannot, by contract between themselves, defeat the general right of the parish,(/) a prescriptive right cannot be exercised by a transfer to a non-parishioner,(/) but a right to a faculty pew may be appor- tioned, if the house be divided into two,(^^) and where the prescription is interrupted a jury is not bound to presume a faculty from long undisturbed possession ;(7j) and reparation from time to time is necessary to be pleaded and proved in order to make out a prescriptive right to a pew;(i) but lining and putting new cushions is however not a sufficient reparation. (A-) The parson or rector impropriate is entitled to the chief seat,(/) and the vicar may by prescription claim a seat in the chancel. (7?i) As to the regulation of pews under the New Church Building Acts, see Dig. P. ii. tit. Church (Pews.) As to a right to a pew as an easement, see post, § 481 et seq. By the canon law, the repair of the church belongs to the rector, but by the common law it belongs to the parishioners ;(n) but generally the parson is bound to repair the chancel ;(o) so, impropriators are bound of common *right to repair the chancels \{p) and it seems that they are com- ^g„ -, pellable by the sequestration of the Spiritual Court. («^) L Where there is a rector and a vicar, it is said they shall contribute. (r) As to the repairing and building of churches under the Church Building Acts, see Dig. P. ii. tit. Church Building; see also as to the breaking into and steahng from churches Dig. P. i. tit. Larceny ; as to setting fire to churches. Id. P. i. tit. Malicious Injuries ; as to destroying churches in a riot. Id. P. iii. tit. Hundred ; as to levying church rates, Id. P. iii. tit. Rates ; as to exempting churches from rates 3 & 4 W. 4, c. 30. 91. By the common law the rector has the freehold in the church3'ard, subject to the rights of the parishioners to be buried there, and he may bring an action of trespass, if his right be invaded ;(5)(1) so, the trees and the grass belong to him, and if cut down, the incumbent may bring his action, and this is not triable in the Spiritual Court ;(f) so, the lessee of the incum- bent, if the churchyard be let, may bring his action, the soil and freehold being in the incumbent,(M) although where there is both a rector and a vicar, (c) Byerley v. Winder, 3 B. & C. 19 ; S. C, 7 D. &, R. 564. ((/) Fuller V. Lane, sup. (e) Lousier v. Haywood, 1 Hagg. 294 ; S. C. 1 Y. .t J. 583. (/) 2 Consist. 319. is) Harris v. Drewc, 2 B. &, Ad. 164. (h) 3 :\ran. & Ry. 389. (i) 3 Add. 6. (/.•) 3 Phill. 331. {I) Hall and Ellis, Nov, 153. (m) Johns. 242, 213. (r?) Ball V. Cross, 1 Salk. 1G4 ; 1 Holt, 138. (o) Pense v. Prowse, 1 Ld. Rayra. 59 ; S. C, nora. Pierce v. Prowse, 1 Salk. 164 ; S. C, Carth. 360. (p) Gibs. 199. iq) Wats. CI. L. c. 39. (r) Lindw. 253. (c) 1 Curteis, 260. . (0 Hilliurd V. Jefferson, 1 Lord Raym. 212 ; Br. Abr. " Trcsp." 210. (u) 2 Roll. Abr. 337. (1) In Pennsylvania, most of the cliurches, &c. are licld cither by the corporation, or trustees for the society ; in them is vested tlic title, and as respects third persons, the exclu- sive right of maintaining their rights by action. Ungst v. Shortz, 5 Wht. 506. 72 CRABb's LAW OF REAL PROPERTY. it seems doubtful to whom the trees belong.(.r) And such freehold is said to be in him for public purposes, and not for private emolument ',{y) there- ^re, although a clergyman cannot be compelled to bury the corpse of any person, though a parishioner, in any particular vault or other particular part of the churchyard, (=■) yet he cannot grant the exclusive use of a vault — only leave to bury there in each particular instance ;(fl) so, no man can make a private door into the churchyard without the consent of the minister whose -, freehold the church is, and a faculty also from the *bishop.(i) So, L *^^ J no one can build on a churchyard without his consent ;(c) yet a man may prescribe to have a way through a church or churchyard.(rf) A rector may cut down timber growing in the church yard for the repair of the parsonage house or the chancel, but not for any common purpose, and this he may be justified in doing under the 35 E. 1 ;(e) so, he may cut down timber for repairing any old pews that belong to the rector)-. (e) The churchwardens are by virtue of their office to see that the footpath? are kept in proper order, and the fences in repair ;(/) and it seems that by custom the parishioners are bound to make the repairs :{g) yet if the owner of lands adjoining to the churchyard have used, time out of mind, to repair so much of the fence thereof as adjoineth to their ground, such custom is a o-ood custom, and the churchwardens have an action at common law for the same.(/i) As to the repair of the churchyard under the statute 35 Ed. 1. see Dig. P. ii. tit. Church (Churchyards,) and the statute against converting lands into churchyards, P. iii. tit. Mortmain. 92. After induction the freehold of the glebe is in the parson ;(/) yet he may not alienate the same, (A-) otherwise than he is authorised so to do by the 17 G. 3, c. 21, and other acts empowering the incumbent under certain restrictions to mortgage the glebe for the purpose of making parsonages ;(/) or to sell or exchange the glebe lands for particular purposes ;(m) so, an P ^ -, incumbent may not commit *waste by cutting down trees ;(n) but L -^ the digging in glebe lands has been held not to be waste. (o) Glebe lands in the hands of the parson shall not pay tithes to the vicar, though endowed generally of the tithe of all lands in the parish ; nor being in the hands of the vicar shall they pay tithe to the parson, it being a rule in the canon law that the church shall not pay tithe to the church. (;;) By the 28 H. 8, c. 11, s. 6, it is provided that if the incumbent die, after having manured and sown the glebe land, he may bequeath the profits of the corn growing thereon ; "but if his successor be inducted before severance (x) Lindw. 267. (V) Bryan v. Whistler, 8 B. & C. 203 ; S. C. 2 Man. & Ry. 330. (z) Ex parte Blackmore, 1 B. & Ad. 122. (o) Bryan v. Whistler, sup. (/)) Deg^e, Par. L. 88, 89. (c) St. George's, Hanover Square, (Rector, &c.) v. Steuart, 2 Str. 1126. id) 2 Roll. Abr. 265. (e) Strachy v. Francis, 2 Atk. 217. (01 Curteis, 621. (g) 2 Inst. 439. (A) 2 Roll. Abr. 287 ; Gibs. 194. (i) Gibs. 661. {k) Lind. 149. (/) See Dig. P. ii. tit. Benefices. {m) Id. P. i. ii. iii. tit. Church, Inclosure, Land-tax Redemption, Leases, &c (n) Gibs. 661. T- . — c (o) The Countess of Rutland's case, 1 Lev. 107; S. C, 1 Sid. 152; S. C, 1 Iveb. do. ; 5 Mod. 917. • {p) Blinco V. Marson, Moor, 457 ; S. C, nom. Bllnco v. Marston, Cro. El. 4(9 ; S. C, Sav. 3 ; Brownl. 69. MILLS. 73 thereof, he shall have the tithe of the same, sed secus if he be inducted after.(7) SECTION V. MILLS. § 93. Suit at Mill. Who obligfcd to do Suit Extent of the Riglit. § 93. Mills when Corporeal Hereditaments. Tithes for Mills. 93. Mills had formerly a great value attached to them from the prescrip- tions and customs which gave the lords of manors a risfht to require the inha- bitants within the manor to grind their corn there, (r) and the custom has been held good ;(sj and so, although the inhabitants be not ten- -. ants ;(/) *and a house newly erected within the manor has been held L J subject to the custom ;(i;) and excessive toll or neglect to grind the corn when sent were held to be the only excuses for not employing the miller ;(?/) and the custom is not confined to corn growing in the manor, but has, after much discussion, been held to extend to all ground corn wherever it might grow, and consequently to the use of American flour ;(a?) but where there is neither tenure nor prescription an exclusive claim of this kind cannot be maintained, (»/) unless by force of prerogative. (^) See further as to Title, and also Injuries to Things Real. Mills when attached to the freehold are corporeal hereditaments, (o) and ejectment will lie for them, whether they are corn-mills or water-mills ;(i) and there may be a copyhold of a mill ;(c) and a mill is rateable as real pro- perty, and will confer a settlement. (J)(l) Tithes are due for a mill ancient or new, and it was formerly held that the tenth toll dish was due of common right ;(e) but it is now settled that the tithes of a mill are personalty, and the tenth part of the profits, after deduct- ing the charges of erecting the mill, &c., belong to the parson. (/) See further, post, § 148. (o) 2 Bulstr. 184 ; 1 Roll. Abr. 655 ; Gibs. 662. (r) F. N. B. 122; 2 Inst. 621. (s) Hix V. Gardiner, 2 Bulstr. 195 ; S, C, nom. Higjres v. Gardener, 1 Roll. Abr. 559 ; Green v. Robinson, Hardr. 174 ; Coryton v. Lithebye, 2 Saund. 114 ; S. C, 2 Lev. 27 ; 1 Ventr. 167 ; 2 Keb. 631. 803, &c. ; Chapman v. Flcxman, 2 Ventr. 286. (t) Drake v. Wylcsworth, Willcs, 654. (u) Scintlcy v. Bcndel, Hardr. 177. (x) Cort V. Birkbeck, 1 Dougl. 218 ; Case of Manchester Mills, cited Id. 221. Sec also 8 Brown. P. C, 106 ; 4 :\Iadd. 114; also, Norfolk (Duke) v. Myers, 4 Madd. 83. (y) Seintley v. Bcndel, sup. (z) F. N. B., by Hale, 122, n. (C.) («) Steward v. Lonibe, 4 J. B. :Moore, 288, 289. (6) Fitzgerald v. Marshall, 1 Mod. 90. See also 3 Ridgw. 319. (c) Ward's case, 4 Leon. 241. (rf) R. v. Ottley (Inhabs.) 1 B. & Ad. 161. (e) Gumley v. Falkingham, 1 Show. 281 ; Hall v. .Macket, 3 Anstr. 915. (/) Newte V. Chamberlain, 1 B. P. C. 157. (1) Ante, 16, n. 1 ; and the water power passes as appurtenant. Pickering v. Stapler, 5 S. &R.107. 7-t ckabb's law of real property. [*^S4] *SECTIOX VT. COMMOXS AXD WASTE LAXI>S. § 94 Distinction bettreea Commoas and j § 95. Ap}»rowinent. Waste Lauds. I Riglits as to Fenc«>s. What Iiitere^ therein ratcaWe, | Liahiliiies to rfjair Fences. Cattie-gatts. To prvserrv Boundarit*. Distuihauw. I Coujinissioncis to ascertain Bounda. 9d. Eucioachments. ! rios. 94. Coramons(l) or common fields, as the name impoTts, are pieces of irround in which indiriduals have a joint and several pnjpeity, and are dis- tinjruished from wastes, or waste lands, which are such parts of a manor as the lonl orijrinallY left waste or uncultivated for the ccnnmon use and benefit of himself and his tenants with his license, whence arose Uie incorporeal hereditaments known by the name of " right of common,'^* as to which se« poet, § 267, and as to the rights of the lonl and tlie tenant see post, Copv- BOLDS, § 845. Land over which there is a right of coiamon, and which affords a bene- ficial occujiatlon, is rateable, but the occupier must have sucii a possession as will enable him to maintain trespass, which a mere commoner cannot do.(^) Most usually the ownersliip of the soil is in the lord of the manor where it is situate, but there are many cases whew there is a joint and several property in fields, cal;ed ou that account "comtnon fields," which are used for their common benefit. In that case each party is in possession of a distinct interest for which he may maintain ejectment, and consequently is rateable.(A) So, a cattie-gale or a right of pasture within any field held by ^jj^. -, several in common is a tenement, which *was held to pass by lease C ^"^ -i and release, now by release only,(i*) and could not be devised but acconling to the Statute of Frauds.(t) So, ejectment may be maintained for it.(/) Caltle^ies are recognised in the Game Act, 1 & 2 Will. 4, c. 32, s. 10/f/j) A\"hore any peison makes use of a common to the injury of the commoner, this is called a disturbance, for which the party has his remedy.(ii) 05. li any person build upcn or inciase c "? or waste land without the hcense oi the lord, this as against a subji: .. ..- rmed an encroachment, but as against the Crown a purpresture or encroachment. If however an indosure has existed with the knowledge of the lord of the manor or of his stewanl for some time, notice must be given to the party to ilirow it up, be- fore ejectment can be brought against the tenant as a trespasser :(o) but it has been a vtxatio qv^stiCt whether a lessee who encroaches cmq the waste can (r) R. V. Wats«[\, 5 E^st, 4S0 ; Sv C. 3 &mth, 4o, (i) K. V. Towksbvirv, 13 East, loci. (j> 4 & 5 Viet, c ^i ; Dig. F. iiL tit. Leases; K. v. T^kslcr, 1 Piirr. Jvtt. Ca. 315 ; S. C Bott. at!*. it) R. T. Whiiky, 1 T. R. 137. {1} R. v. Tewksbiinr. s«!v (m) See Di|r. F. iii. tit- Game. (a) Sw poet, § 353V* «ff. (•) Doe v. Wilson, 11 Eas«, 56. (1) Tnistees v. Robinson, 13 ?. & R. 33. Worcester v, Gicen, 2 Pick. 435. COMMONS AND WASTE LANDS. 75 acquire a possessory right after an uninterrupted possession, or uheiher he shall not be supposed to have enclosed for the benefit of the lessor after the term ;{])) prima facie every inclosure made by a tenant adjoining the de- mised premises is presumed to be made by him for the benefit of the land- lord ; but this presumption may be rebutted by evidence. (7) See further post, as to title gained by encroachment, Title to Things Real. A clause is usuUy inserted in Inclosure Acts, that no encroachment in a waste which has existed twenty years before the passing of the Act shall be considered as a part of the waste, and no title derived by virtue of such en- croachment *shall bo disputed. A similar clause is to be found in ^ -. the G & 7 W. 4, 1 15, for inclosing common and arable fields, (r) and L -1 so likewise in 10 G. 4, c. 50, which conlains several provisions as to unlaw- ful inclosure. (a) The lord's right to approve as against the commoner is recognised by the 20 H. 3, c. 4 ; 13 E. 1, c. 46, and 3 & 4 E. 6, c. 3,(/) and by subsequent acts as the 13 G. 3, c. 38 ; 41 G. 3, c. 109, the General Inclosure Act, and other Acts, lords and tenants are empowered to enclose commons under certain regulations ;[ic) also as to exchanges of lands lying in common fields 4 & 5 W. 4, c. SO.{x) An inclosure has the efiect of changing the tenure of lands by converting copyhold into freehold unless the contrary be expressly provided for,(/y) and the legal freehold does not vest in the aliotlee until the execution and proclamation of the award. (z') With the subject of inclosure is connected that offences ; whatever serves to part fields one from another is a fence ; and it may be either a hedge, a ditch, a bank, wall, gate, &c, ; for a ditch may be a legal fence if it serve the purpose of a fence. («) Where two adjacent fields are separated by a hedge and ditch, the hedge pri7n(i facie belongs to the field where the ditch is not; if there are two ditches, one on each side the hedge, then the ownership of the heJge must be ascertained by proving acts of ownership. (i) For a per- son making a ditch usually cuts to the extremity of his land ;(A) and where lands abutting on a ditch, and a lane on each side, belong to dillerent owners, the presumption is that the hedge and ditch on either side belong to the owner or occupier of the land on that side ;(t') and if a man makes a bank, it as well as the ditch, will, it is presumed, be made on his *own ground, and ^^^ , therefore the land which constitutes the ditch is in point of law a part L J of the close, though it be on the outside of the bank ;((Z) for although a party is supposed to dig the ditch at the extreme point of the land, yet he may not dig so near, as to cause his neighbour's land to fall in.(e) A tenant is bound to repair the fences, and a landlord may maintain an action against him for not so doing, upon the ground of the injury done to (p) Ci-each v. Wilmot, 2 Tr.unt. 160, n. Sec also Doc v. Mulliucr, 1 Esp. 460 ; Doe V. bavics, Id. IGl ; Bryan v. Wiiuvood, 1 Taunt. 208 ; and Adams on Eject. 51, 3id ed. ; VVoolr. on Comni. 3:)0. (7) Doc V. VVilliiHus, 7 C. &, r. 332 ; Doc v. Murrcll, 8 C. & P. 134. (r) See Dig. P. i. Inclosure. (s) Id. tit. Land Revenue of the Crown. (/) Sec Dig. P. 1. tit. Approvcnunt, Commons. (//) Id. P. i. ii. ill. tit. Commons, Inclosure. (x) Id., P. i. lit. Exchange. (y) Novill V. Joddrcll, 2 T. R. 41.5. (s) Farrer v. Hillin) Yet a tenant for life of coal mines may open new pits or shafts for the working old veins of coals ;(1) it being hazar- dous to grant an injunction to stay the working of a coal mine, because it may ruin the colliery forever.(c) As to waste by tenant for life, see post, tit. Waste. r ^QO" 1 *^'' '^ "°^^ settled, that in the absence of special custom the pro- L -^ perly in minerals is vested in the lord, and the right of possession in the tenant ; consequently neither party can do any act to profit by the mines without the consent of the other. (f/) And a copyholder shall have trespass against the lord for breaking his close and digging his coals ;(e) and so the action is maintainable against the owner of an adjoining colliery for breaking and entering the subsoil of a copyholder, and taking coals therein, although no trespass be committed on the surface, (y) The tenant, however, on the other hand has no right to the minerals, (§•) and if he work the mines he commits waste, (A) unless where he has the right by special custom. (i) (As to the right of lords and copyholders, see post. Tenures, §§ 853 et seq. ; waste by copyholders, see post. Injuries to Things Real.) As between landlord and tenant it appears that the lessee for years may work mines that are open, for they are the annual profit of the land, but he cannot make new mines, for that would be waste ;(/c) but if a man has mines hid in his land, and leases his land and all mines therein, the lessee may then open any mine. (A;) (As to waste by tenant for years, see post. Injuries TO Things Real.) As between the patron and the parson, it appears that if the parson open (/) Die V. Wood, 2 B. & A. 739. (t) Robrrts v. Dn.vy, 4 B. Sc Ad. G72. ly) Chotliam v. Willianision, sup. ; Huntingdon, (Earl) v, Moiuitjovo, (Ld.), sup. («, 1 Inst. 53, b. ; Moylc v. Moylc, Ow. ti? ; S. C;., 2 Roll. Abr. 81 G. («) Lord Darcy v. Aslnvitli, Hob. 296; Saunders' case, 5 Co. 12 ; 1 Inst. 54, b; Hull. 19. Sec also Viucr v. Vaughan, 2 Bcav. 446. (6) ] Inst, 54, b ; Whitfield v. Bewit, 2 P. Wms. 240. (c, Clavcring v. Cluvcrinjr, 2 P. Wrns. 388; S. C, Sd. Chan. Cas. 79. (il) Winchester (Bp.' v. Knijrht, 1 P. Wms. 406. (e; Player v. Roberts, W. Jo. 243. ( /■) Lewis V. Branthwaitc, 2 B. & Ad. 437. (?) Rowe v. Brenton, 8 B. & C. 737. (//) Bourne v Taylor, 10 East, 189. (i) Curtis v. Daniel, 10 Ea.st, 273. (A-) Saunders' case, 5 Co. 12; 1 Inst. 84, b. (1) Crouch V. Purycar, 1 Rand. 260. WAYS. 83 a mine in his glebe, this will not be waste, for otherwise none of the mines under glebe lands would be opened. (/) IV. 2^alcalH'litJ>, ^c. of ^tnrs. § 101. Coal mines being alone mentioned in the 43 El. c. 2, it has been held that mines of other minerals are not *liable to be rated to the p ^,q relief of the poor,(?n) and by the 5 & 6 W. 4, c. 50, s. 27, also not l J to the highway rate ;(;?) to this however there are some exceptions, for stone quarries are not exempt ;(o) so, slate-quarries ;(;j) so, clay-pits ;(y) so, in Rowls V. Gell,(r) a lead mine was held to be rateable, and so likewise in R. V. St. Agnes(s) tin mines have been held rateable. An action of ejectment is maintainable for recovering the possession of a mine ;(/) but it seems doubtful whether ejectment will lie for an unopened mine ;(.r) so, ejectment cannot be brought by the lord of a manor for mines situate in the lands of his copyhold tenant in the absence of special custom ;(?/) so, it will not lie in respect of a Hcense only to work mines. (z) Tithes are not regularly due of things Avhich are of the substance of the earth ;(o) but mines or minerals may be titheable by custom. (i) See fur- ther post, § 148 ; see also further post, Injuriks to Things Real ; and as to the statutory provisions respecting mines, see Dig. P. i. and iii. tit. Mines. ^SECTION X. WAYS. [*99] § 102. DitFercnt kinds. 102. What a Higlnvny. Hig-hway foundcrous. Turnpike IJoads. Property in the Soil. Who Owner of the Soil. Trees in the Highways. Mines and Minerals, &c. in tlie Highways. § 102. Repair of Highways. Bridges. Individuals bound to repair. By Prescription. By Tenure. By Inclosure. (J) Countess of Rutland's case, 1 Lev 1 .Sid. 152. (;«) See Dig. P. iii. tit. Poor (Rate). (0) R. V. Allcsburv, 1 East, 534. iq) R. V. Brown, 8 East. 523. 107 ; S. C, nom. Rutland v. Greene, 1 Kcb. 557 ; (n) lb., tit. Iliglnvnys. ip) R. V. Woodland, "2 East, 161. (r) Cowp. 451. (s) 3 T. R. 480. (0 Harebottle v. Placock, Cro. Jac. 21 ; Comyn v. Kineto, Id. 150 ; Wild's case. Garth. 277 ; Cullen v. Rich, Bull. N. P. 102. (x) Sayer v. Pierse, 1 Vcs. 232. (y) Lewis v. Branthwnitc, 2 B. & Ad. 437. {z) Doe V. Wood, 2 B. & A. 139. («) Graunt's Case, 1 1 Co. 15. (i) Burton v. Spencer, 2 Wood. 336. 84 CR abb's laav of real property. II. ^vf\jatc Srnii^. § 103. What is a Private Way. 1 103. Private Wars becoming Public, Right of Way. j 103. Dedication of Way to the Public. § 102. Ways are either public or private,' and these again arc distin- guished, according to the nses to which they are apphed, into horseways, cartways, and footways. See further Dig. P. iii. tit. Highways. I. 35ui3lic Z^'nvn, Public ways are either common ways or highAvays. A common way is such as leads from a village into fields, &c. ;(c) and this may be prescribed for.(rf) A hicrhwav is a way to a market or a great road, &c., common to all passengers, or more properly speaking a public passage for the Clueen and all her subjects, whence called by distinction the " Glueen's highway." *inn~i ^^ l^-'l^'^r it leads to *a market-town or not it is a highway if com- L J mon to all the people :(f) so, a street is a highway ;(/)(!) so, a navigable river is to some purposes esteemed a highway ;(o-) so, a bridge :(/j) so, a towing-path ;(i) so, a railway ;(&)(2) but a fiight of stairs down to the Thames is not necessarily a highway. (/) There may be a highway although it may be circuitous ;(7n) and even, as it seems, although there be no thoroughfare. (/j) "When a highway becomes founderous or out of repair, the passengers may go on the adjoining land, even over sown corn ;(o) and such ways, termed outlets, are held to be part of the highway ;(o) but in order to make such way the Queen's highway, it M-as formerly necessary to have a writ of ad quod d(im)n(tn,{p^ Avhich is now very rarely required, since the highways are regulated by act of Parliament. Turnpike roads are highways, but every road where toll is taken is not necessarily a highwa}-, for the law recofrnises "toll thorough," and "• toll- traverse," the former of which is toll for passing over the private soil of anolher,((7) and the latter is a toll for passing through a high way. (g) Toll- (c) R. v. Hornsey (Inhabs.) 10 Mod. 159. {d) Chichester v. Lethbridge, Willcs, 71. (e) Ansfcn's case, 1 Vent. 18;i. ( f) R. V. Hammond, 10 .^lod. 382 : S. C, 1 Stra. 44. (tr) Fitz. Abr. tit. Challcnjare, 279, cited 10 Mod. 382. (A) R. V. Saintiff, G :\iod. -253. (i) 2 B. & A. 648. (A-) R. V. Severn Railway Co., 2 B. & A. 646 ; Rowe v. Shil^on, 4 B. & Ad. 726. (l) R. V. Limehouse. 2 Show. 455. See also Driukwater v. Porter, 7 C. &. P. 181. (m) R. V. Lloyd, 1 Camp. iGl. (j-) Rupby Charity v. Merry weather, 11 East, 375, n. But see Woodver v. Haddcn, 5 Taunt. 138; Wood v. Veal, 5 B. &, A. 454; S. C, 1 D. & R. 20, where that decision is questioned. (") Dancombc's case, 1 Roll. Abr. 390. (jy) Cro. Car. OGG. (7) Blount, Nom. Verb. Toll ; 1 Sid. 454, (1) Case of the Philadelphia & Trenton Rail Road Co., G Whart. 44. (2j Bonaparte v. Camden, 1 Bald. 223. P U B L I C W A Y S. 85 traverse cannot be demanded without consideration ;(r) toll-thorough on the other hand may be demanded without *any consideration. («) These p*,^.,-! two kinds of toll and also toll-turn, which is a toll on beasts returning L -• from a market, a man have on his own ground and might have assize for them.(?) The property in the soil of the highway is in the owner of the adjoining land, (a:) who may maintain trespass for digging the ground of the high- way,(yj(lj and also ejectment, for the sherifl" may give him possession subject to the easement. (z)(2) To him also belong all trees upon it,(3) and all mines underneath, (a) and he may carry water under it. (a)(4) Hence it has been said that cattle should be driven directly along the highway, and not suflered to linger, for if they do any thing but pass and repass it is a trespass, (6) for the property ia the soil being vested in the owner, a lawful user may be shewn. (c) So, it has been held that trustees of a turnpike road have not the soil of the road vested in them, so that they can give consent to the diverting a public footpath into it, without a special clause in the statute vesting the right in them,((/)(5) although by the 3 G. 4, c. 126, ss. 86 et seq., they are authorized to sell roads become useless, reserving mines and minerals to the owner. The owner of the soil is generally understood to be the owner of the close adjoining, to whom the highway itself, al medium fil um vise, belongs, and consequently the presumption prima facie is, that the land belongs to the owner on each side ;(e) and the rule is the same whether the owner be a freeholder, leaseholder, or copyholder ;(/) so the presumption is that the strips of land at the sides of the road 'belong to such owner,(o-) but p^irjo"! acts of ownership on the part of the lord of the manor may be L J admitted to repel such presumption ;(/i) so, if the narrow slips lie contiguous to or communicate with open commons, the presumption in favour of the (r) R. V. Boston (Corp.) 1 W. Jo. 162 ; Hasfort v. Wells, 1 Mod. 47 ; S. C, nom. Heshord V. VVells, 1 Sid. 451; London (Corp.) v. Hunt, 3 Lev. 47; Warrington v. Moselcv, 4 Mod. ai9 ; Wilkes v. Kirby, 2 Lutw. 1519 ; Yarmouth (.Mayor) v. Eaton, 3 Burr. 1402. Aiid see Pclhain (Ld.) v. Pickcrsjrill, 1 T. R. 6G0 ; Trucman v. Wal^liam, 2 Wils. 298. (s) Crispe v. B'jlhvood, 3 Lev. 424 ; Colton v. Smitii, Cowp. 47. it) Webb's case, 8 Co. 45. (x 2 E. 4, 9; 8 E. 4, 9 ; 8 IL 7, 9 ; 2 Inst. 705. (y) 8 E. 4, 9; Goodtitle v. Alkcr, 1 Burr. 133. (i) Lake v. Sliepherd, 2 .Stra. 1004. (a) Goodtille v. Alkcr, sup. (b) 10 E. 4, 7 ; Br. Trespass, pi. 321. (c; Doveston v. Payne, 2 H. Bl. 531. Id) Davison v. Gill, 1 East, 6J. (ei Stevens v. Whistler, 11 East, 51 ; Doe v. Peirsey, 7 B. & C.304 ; S. C, 9 D. & R. 903 ; S. C, 5 D. & R. 273 ; Cooke v. Green, 11 Price, 736. (jf ) Doe v. Pearsey, sup. (? ■ Steel v. Pricket, 2 Stark. 463. (A) Anon., Loffl, 358 ; Doe v. Kemp, 7 Bing. 332 ; S. C, 5 M. &. S. 173. I (1) Or for landing passengers from a ferry over a navigable stream, on the terminus of a highway, C:hcss v. Manown, 3 Watts, 219 ; Peebles v. Kittle, 2 Johns. 363. {2, Alder v. Murdock, 13 Mass. 256. (3) Chambers v. Furry, 1 YeaL 167. (4) Pcrlcy v. Chandler, 6 Mass. 454. (5) And though they may erect a toll house witliin their limits. Ridge v. Stoever, 2 W. & S. 5 IS, yet they cannot use it for any other purpose than is essential to the use of the road, Fisher v. Coyle, 3 Watts, 408 ; and on tlie abandon'n -ntof the house as a toll house, it becomes a public uuisance, aud any one may abate it, Phiiadelp!iia Turnpike v. Rogers, 2 Barr, 114. 86 CRABB's LAW OF REAL PROPERTY. landowner fails or is much narrowed ;(i) so, where such strip had been commonly reputed waste. (A-) As to the property in trees growing in the highway the old text writers appear to be not agreed, some contending that they belong to the lord of the manor, and others to the freeholder. (/) In Brownlow, 42, it is laid down, .that to the owner of the soil on both sides of the way of common right belong the trees that grow in the lane, whether he be lord or freeholder, although it seems that the question will turn very frequently on the usage of taking the profits of the trees. (?n) By the 7 & 8 G. 4, c. 24, s. 18, minerals under the road are made by virtue of the act to belong to the original proprietor of the land, who shall have the liberty of working the same in such manner as is usual for carry- ing on works of that kind ; and by the 4 G. 4, c. 95, s. 75, the right of pasturage is reserved to those who are entitled to the same ;(n) and by the General Inclosure Act it is provided that the grass and herbage growing on the roads that are set out shall forever belong to the proprietor of the lands adjoining on both sides the way. It is settled, that, of common right, the parish, where the highway is, ought to repair. (o)(l) And no agreement whatever with any person can relieve the parish from this common-law liability ;(/)) and if there be any one who is bound to repair, but becomes insolvent, the justices may cause -, the *deficiency to be levied on the rest of the inhabitants ;((/) so, L -J where certain inhabitants of a township w^ere exempted from the repair of the new roads, the burthen Avas thrown upon the rest of the parish ;(r) but certain districts or individuals may be bound to repair, as a vill,(s) or a hundred. (/) So, a hamlet may be charged by immemorial pre- scription ;[x\ or a township may be chargeable by prescription for the maintenance of all ways within their boundary ;(y) and mere usage without the averment of any consideration will suffice to bind such districts ;(r) but it seems doubtful whether one parish may be bound to repair a way within another parish. (o) Bridges, though deemed to be highways, must be repaired by the county ;(6) and by the 22 H. 8, c. 5, s. 9, the county is bound to repair the highvi^ay at the ends of bridges to the extent of three hundred yards distance from the end, which seems to have been the common law,(c) see further as 10 bridges. Dig. P. ii. tit. Bridges. Individuals may be bound to repair from different causes, as by prescrip- (»■) Grove v. West, 7 Taunt. 39. Holt, 4G3. (k) Hcadlam v. Headloy, Holt, 463. (I) Kitch. 68 ; Br. Abr. Leetc,pl. 3. (m) Pclham v. Wiatt, TRoII. Abr. 392. (n) Sec DiiT. P. iii. tit. Highways, (o) 1 Vent. 90 ; 1 Ld. Rayra. 725 ; 2 Mod. 403. > (p) 1 Ventr. 90. {g) 1 Ld. Raym. 72.5. (r) R. V. Sheffield (Tnhabs.) 2 T. R. 106. (s) 27 Ass. pi. 44, (21.) (<1 R. V. Yarton (Inhabs.) 1 Sid. 140. (x) Sty. 163. (y) R. v. Ecclesfield (Inhabs.,) 1 B. & A. 348; R. v. Machynlleth, 2 B. & C. 166. (z) R. V. Hatfleld (Inhabs.,) 4 B. & A. 7.5. (a) Anon., 12 Mod. 409 ; R. v. St. Giles, Cambridge (Inhabs.,) 5 M. & S. 260. (Ij) 13 Co. 33. (c) Br. Abr., Presentment, pi. 23 ; 2 Inst. 70.5. See also R. v. Yorksliire (W. Rid.,) 7 East, 588; S. C, 5 Taunt. 284; S. C, in error, 2 Dow. 1. (1) Bat the charjre of repairing a road cannot be throAvn on the public by a mere dedication, Union Canal v. Pinegrove, 6 W. & S. 563. P R I V A T E W A Y S. 87 tiori, tenure or incjosure. A part}'- cannot be held liable by prescription, unless it be in respect of some consideration as the taking of toll or other profit, for the act of the ancestor cannot charge the heir without profit ;((/) but a corporation may be bound by prescription without consideration ;(c) but the. occupier is bound to cleanse the dikes and ditches adjoining to his land without *prescription,(g-) and this part of the common law is r-*-,Q^-^ confirmed by the statute. (A) •- A private person may likewise be bound by reason of his tenure ;(i) and so his alienee ;{k) and if the lands come into the hands of the Crown, yet the obligation or duty continues, (/) but the occupier and not the owner is liable ;(m) and if the owner allow his land to lie fresh, he will not be excused from re pair, (i) A party may likewise be bound to repair by reason of an inclosure of the land on either side of the highway, for by this means he deprives the public of their common-law right to go upon the adjacent land in case the road be founderous and out of repair.(n) If a person inclose land on one side, the other side being anciently inclosed, he shall be compelled to repair all the way, but if there be no ancient inclosure he will be obliged to repair only half the way.(o) If the party neglect to repair, the passengers may make gaps in the inclosure, and go upon the land to avoid the bad road,(/>) and the Court in one case ordered an inclosure to be prostrated until the road was repaired •,{q) and the like law prevails in case a party encroaches on a high- way, for he is bound to repair it until the encroachment is removed ;(r) but the bare removal will not discharge one who is bound to repair by reason of tenure, because in that case he is always bound. (r) But the obligation to repair by reason of inclosure or encroachment extends only to inclosures made by the party, not to those made by the act of the law, as *under an p*jQ5-n inclosure act.(6-) As to the making, repairing, and managing of L highways and turnpike roads, see Dig. P. ii. tit. Highway. 103. A private way is said to be such as goes to a church, or to the com- mon fields of a town, or to a private house, or to a particular village which terminated there ; and it is so called because it is for the particular benefit of the inhabitants of such place only, and not for all the queen's subjects ; and the right, which may be claimed by particular persons to use such way, is an incorporeal hereditament known by the name of a 7?/s"/i^ o/* ^f 'ay, as to which see further, post, § 360 et seq. But whether a way be a private way or a highway depends much upon reputation. (/) (rfi 13 Co. 33 ; Sfy. 400. See also R. v. Skinner, .5 Esp. 219. (e) 13 Co. 33. (g) 8 H. 7, .5 ; Bro. Nuisance, pi. 23. (//; See Diof. iii. tit. Highways, (ij Palm. 339. {k) R. v. Buckeridirc, 4 Mod. 48. (l) n. V. Biiccleufrh (Duchess,) 1 Salk. 358; S. C, 6 Mod. 1.50. (7rti Palm. 38S) ; 2 R..11. Rep. 412 ; Hosklns's case, Godb. 400 ; R. v. Watts, 1 Salk. 357 ; Foster's case, 4 Vin. Abr. .504. ('/) Duncombc's cnse, Cro. Car. 366 ; Hcnn's case, W. Jo. 236. lo) Anon., 1 Sid. 464. (v) Henn's case, sup. (7) R. V. Hillarsdcn, 1 Kcb. 894. Sec also R. v. Hatfield, (Inliabs.,) 4 B. & A. 75. (r) R. V. Stou^liton, 2 Saund. 160. (s) R. v. Flecknow (luhabs.,) I Burr. 461. (/; 1 Vent. 18J. Sec also Scnhouse v. Cliristian, 1 T. R. 578. 88 CRABb's LAW OF REAL PROPERTY. A private way may become public either by act of Parliament, as by m- closure acts, or by its presumed dedication to public use. As to what consti- tutes a dedication has been a matter of some question. At first it seems to have depended upon the length of time that the road had been left without any bar or other obstruction, (z/) but the intention has since been considered as the rule ;(a')(1) but the tenant cannot bind the inheritance in cases of this kind ;(?/) so, if the dedication be not made openly, and Avith a deliberate pur- pose, it will not be admitted •,[z\ so, where it was proved that a bar had been put up, the right of way was negatived ;(«) so, Avhere the owner was com- pellable to make an occupation road for particular persons, this was held to rebut the presumption of a dedication ;(6) but where a place was altogether r*infi1 ^^^^ without bar, or chain, or any other mark *of private property, L -' this was declared to be a public road.(c) As to whether there can or cannot be a partial dedication of a way, see 2 M, & S. 263, 1 Campb. 203, n., 7 B. & C. 266 ;(2) but if a general grant be once made, the grantor can- not resume his rights to the hinderance of the public, and a highway cannot be changed or diverted without the qeeen's license or the authoritj^ of Par- liament. () Carter v. Muicot, 4 Burr. 2162 ; Oxford, (Mayor, &c.) v. Richardson, 4 T. R. 239. (y) 1 Mod. 106 ; R. v. Ellis, 1 M. & S. 652. (/■) Weld V. Hornbv. 7 East, 195. (s) Sav. 11. (/) Peter v. Kendal, 6 B. i C. 703. (x) Gray v. Bond, 2 B. &. B. 667. (y) 8E. 4, IS. lit. {z) 3T. R.263. («) R. V. Ellis, 1 M. k S. 665. (b) Id. 652. 96 CRABb's LAW OF REAL PROPERTY. Fish, whether taken in the sea, or in rivers public or private, or in private waters, are not titheable except by custom, (c) As to the preservation offish in rivers, lime of taking and sale of fish, fish-markets, importation or export- *i iTi ^'i°^^ *o^ fi^*^' ^'^'^ regulation of fisheries in general, see Dig. P. i. C "-J tit. Fish, Fisheries. 109. As a rule the sea and navigable rivers are not subject to toll, because by Magna Charta and other statutes every one has a right to go and come upon the sea without impediment ;(rf) and therefore no duty can be imposed, in respect of the user of such waters, without the license of the Crown. So that, although a man may have trespass for unloading on his grounds, yet he may not take anything as a certain common toll,(e) unless a consideration be shewn, as coming into a quay or wharf, &c., when a toll may be demand- able •,{g) for toll-thorough, whether on the land or on the water, is against common right, and cannot be supported without a consideration ;(/*) but toll- traverse, which applies to private waters, may be demanded, because it in itself supposes a consideration ;(i) therefore a custom of demanding a toll for the repair of a port has been held good, for the making a port is a consider- ation. (yt) So, a toll for weighage has been supported, where the party had also the liberty of bringing the goods into a port ;(/) and the owner of a port may have a toll by prescription, without alleging any consideration ;(wj) so, for the same reason, a toll for measurage has been supported ;(n) so, for quayage ;(o) so, for wharfage. (;)) The law of toll-thorough, as above laid down in respect of ports and har- bours of the sea (see supra,) applies also to navigable rivers, where the toll cannot be supported without shewing a consideration, Haspurt v. Wills, (7) ^ -, *Nottingham (Mayor, &c.) v. Lambert,(r) where, for want of shew- t- -^ ing a consideration, the toll could not be supported ; on the other hand, in R. v. Boston (Corpor,),(5) the consideration of repairing a bridge was held sufficient ; and in Steinson v. Heath,(/) which was a case of toll- traverse, it was held that no consideration need be shown. (?<) The taking of toll in respect of ancient water mills rests on custom, and if more toll be taken than what the custom warrants, the miller is punishable for extortion. (x) Tolls are not per se rateable to the poor, yet when connected with land they are so.(y) See further Dig. P. iii. tit. Poor. As to tolls imposed by Parliament, the amount and mode of imposition is regulated by the Act. (c) Noy, lOS ; Long- v. Dirccll, 1 Roll. Abr. 636 ; Diwes v. Huddleston, Cro. Car. 333 ; Anon., 1 Vcntr. 5 ; Scarborougli, (Earl) v. Hunter, Bunb. 43 ; S. C, '2 Gwill. 621 ; Au.tcn V. Nicholas, 2 Gwill. 616. i'l) 1 Mod. 105. (e) Hale de Port, 51, recognised in 5 B. & A. 298. {ir) VVilles, 115. (A) 22 E. 3,58, cited Nottingham, (Mayor) v. Lambert, Willes, 114. (i) lb. See ante, § 102. (A-) Vinkensterne v. Ebden, 1 Ld. Raym. 334; S. C, 1 Salk. 248. (/) London, (Mayor, ^c.) v. Hunt, 3 Lev. 37 ; S. P., Exeter, (Mayor, &c.,) 2 Wils. 95. (m) Wilkes v. Kirby, 2 Lutw. 1519. (n) Yarmouth, (Mayor, &c.) v. Eaton, 3 Burr. 1402. (0) Sargent v. Reed, 2 Str. 1228; S. C, 1 Wils. 91. ( p) Colton V. Smitli, 1 Cowp. 47 (7) 1 Mod. 47; S. C, 1 Ventr. 47 ; S. C, nom. Heshord v. Wills, 1 Rid. 454; S. C, 2 Keb. 624. (r) Supra. (s)W. Jo. 162. (Q 3 Lev. 430. (u) See supra. (x) R. V. Burdett, 1 Ld. Raym. 148. See ante, § 93. (y) R. v. Milton, 3 B. & A. 112. CANALS, DOCKS, ETC. 97 III. CTanalfi, BccUs, $cc. 110. Canals, clocks and other artificial waters erected under the sanction of the legislature are regulated in every respect by the provisions of the Act in each particular case, see Dig. P. iii. tit. Railroads and Canals ; but the power thus given by the Act does not necessarily give the undertakers any interest in the soil, except of such land as they purchase ; therefore the trustees of navigable rivers are held not to be rateable as the occupiers of land over which such rivers pass, although they are authorized to cleanse and enlarge the bed of the stream and to remove all obstructions to the navigation, they having no more than an easement in the river, which is an incorporeal hereditament, and no interest in the soil ; (2:) and the grant of a navigation passes only an easement ;(«) so, where by a reservation in a *Canal Act the owners of the soil were authorized to work coal ^ mines under the canal, held that the legislature having left to the L J owners the entire dominion and benefit of their property, the company who had the liberty of purchasing their rights, could not recover for any damages done to the canal, by working the mine :(6) j^et shares in navigable rivers, canals and waterworks have heretofore in different cases been deemed real property ;(c) but this is mostly provided for in modern Acts of Parliament by declaring all such shares to be personalty, see further, ante, § 83. The throwing down, levelling, or otherwise destroying any lock, sluice, floodgate, or other work, on any navigable river or canal, is declared by tlie Malicious Injuries Act to be felony punishable with transportation for life. See Dig. P. i. tit. Malicious Injuries. IV. J^oittrs, 33ccoi>s, miXf oUirv ^riiJatc Si^atcrs. 111. Private waters have also certain rights attached to them, particularly as regards fish, Avild fowl and mills. Any man may erect a fishpond, or water wherein fish are kept and maintained, it being a matter of profit and increase of victuals ;(<^/) and there needs no privilege as for making a free warren ;(e) but the lord of a manor may not make such a store-place for fish, as thereby to disturb the commonable rights of the commoner. (y*) A man's storepond is his several piscary, and he may claim ihe fish as plsccs snos.{g'^ So, fish in a pond go to the heir and not to the executor ;(//) and a man may have *an action of account for fish in a pond ;(/) ^.,f,r|-| so, the renting of a fishing in a pond has been held to give a settle- L -1 (z) R. V. Mersey and Irwcll Navigation Co., B. & C. 95 ; S. C. 1 Man. &. Rjl. 84 ; S. P., R. V. Thomas, 9 B, &. C. Ill ; S. C, nom. R. v. Avon Co., 4 Man. &, Ryl. 23. («) Aire and Calder Navigation Co., !) 1}. & C-. 820 ; S. C. 4 Man. & Ryl. 728. (6) Wyrly and Essington Canal Co. v. Bradlry, 7 East, 3G8. (r) Drybuttcr V. Bartholomew, 2 P. Wins. 127 ; Bnckeridge v. Ingram, 2 Yes, G62. (rf) 2 Inst. 199. (e) Anon. G Mod. 183. (/) Reeve v. Digliy, Cro. Car. 495. (ff) Pollexfcn V. Crispin, 1 Vcntr. 122; S. C, nom. Ashlbrd v. Crispen, 2 Keb. 757, recognising Child v. Grecnhill, Cro. Car. 5.') 1 ; S. C, W. Jo. 441). (/() Grey's case, Ow. 20. Sec also 21 II. 7, 2G. (i) 10 11. 7, 6. 30. July, 1846.— 7 98 crabb's law of real property. ment ;(/c) for fish in a fishery may be said to augment the inheritance, so as to increase the estimated value of the tenement in questions of settle- ment, (^) By the Larceny Act unlawfully taking fish in any water, running through grounds which belong to a dwelling-house, is declared a misdemeanour; takinf fish in other waters is make punishable with a fine of £5, and the tackle of persons unlawfully angling may be seized. See Dig. P. i. tit. Larceny. Stealing oysters from an oyster-bed is by the same act declared a larceny ; and dredging for oysters in an oyster fishery is made punishable by a fine of ,£20. By the Malicious Injuries Act breaking down or otherwise destroying the dam of any fishpond, or of any water which is private property or in which there is any private right of fishery with intent to destroy the fish, or putting any lime or noxious material therein with the like intent, is declared a misde- meanour punishable with transportation for seven years or imprisonment for two years. See Dig. P. i. tit. Malicious Injuries. 112, Ponds for the breeding and maintenance of wild fowl, which are called decoys, are under the special protection of the law, therefore the owner of such a decoy may have an action against anjj^ one shooting at, dis- turbing, or scaring the birds,(/) see further Dig, P. iii. tit. Game. Water-mills like other mills are corporeal hereditaments, (see ante § 93 ;) and a covenant by a lessee to repair a mill has been held to run with the land.fjn) With water-mills is essentially connected the law respecting water-courses, which being an incorporeal hereditament will be considered *more at large hereafter, see post, § 398 et seq,; and as to the dis- L J turbance of such rights, see post, § 427. By the Malicious Injuries Act breaking down the dam of any mill-pond is declared a misdemeanour, punishable with seven years' transportation or imprisonment for two years, and if the offender be a male, with a whipping, once, twice, or three times. As to burning or destroying mills themselves, see ante, § 93. V. ieetorrs. 113. A sewer is properly a trench artificially made to carry water into the sea, but a commission of sewers comprehends in it much more than what was originally understood by the term. The protection of the land against inundations, which is the object of such commissions, was deemed a matter of great importance at an early period, although the first statute on the subject did not pass before the reign of Henry IV, ; it was, however, followed by many other statutes in subsequent reigns, see Dig. P. iii. tit. Sewer. The commissioners of sewers have jurisdiction over sewers communicating with a navigable stream, or with the sea above the point where the tide ebbs (Jc) R. V. Old Alrcsford (Inliab.) 1 T. R. 358. (/) Keble V. Hcckringfill, 11 Mod. 74. 130 ; P. C, 3 Salk, 9 ; S. C, Holt, 14 ; Bull. N. P. 79, rcco£rnis(:d in f'arrington v. Taylor, 1 I East, ,571. {in) Brett V. Cumberland, Cro. Jac. 521 ; 2 Roll. Rci>, G3. sEV;^»jji> .- . . • 99 if it be useful for navigation, and if the place over which the jurisdiction is to be exercised is likely to he benefited byt Jt,;(r?) so, their-jurisdjction extends over sea-walls and banks, as also the bati-ks raid walls of na-\:igable and other rivers that have their course to the sea ; ^^- tliey have power over gutters, ditches, ponds, pools, sewers, and streams, so ffir as they are fcir the benefit of the commonweahh, but such as are-fences for pri^'aie grounds cnlv, are not properly within the commission. (o) '"V^,* ^' ' For the charges of making and repairing sewens, atid such .tP.ir>gs as belong thereto, the land in general constitutes the *properiy that ie- • ' -. rateable, copyhold as well as freehold ;[p\ so, a tenement .ia her' L -* Majesty's dock-yard, deriving a benefit from pubUc sewers, and occupied by an officer of government, who pays no rent, is notwithstanding liable to the rate ;(<^) so, all things which lie in tenure ;(r) so, also some incorporeal hereditaments, as common of pasture, piscary and turbary or the free pas- sage of an ancient ferry ;(,v) so also herbage, parks and warrens ;(«) but tithes seem not to be chargeable except by special custom. (^) In some cases individuals are bound to re^aix ratione tcmtrx : and if a man be so bound he maj- be charged alone \[i(\ and others will be charged only in case of his default ;(a:) and if a jury find that one ought to repair a bank, &c. which is decayed by the sea, and it be removed into the Q,. B., the justices will not quash the inquisition to grant a new trial, unless the party found guilty first repair the bank, of which he shall be reimbursed -Jy) so, a man may be bound by reason of frontage, that is, where a man's (ground fronts the sea \{z^ so, by reason of being owner of the bank, wall, or other defence ;(«) so, by prescription or custom ; but in the presentment mention must be made that he is to do the same thing ratione talis messuagii, &c., yet in the case of a corporation this is not necessary. (6) In 19 H. 7, it is said that a man may be bound ratione resiantise, but this must be understood in respect of the house he inhabits ;(/A a man may also be bound by his covenant ;(r) so also by reason of using a thing, as a man is bound to repair a river by reason of his making use of it ;((/) so, it seems that townships may in particular cases be subject to *a separate ^,„q-| assessment ;(e) but in all cases where parties are assessed to repair, L -' it must appear that the party so assessed will be benefited ;(f\ and so in respect of a township ;(i^) and therefore where the level of a party's drains are so much above the drains falling into the great sewer, that the stopping of the sewer cannot possibl}^ throw back the water, so as injure his premises, (n) Dore v. Gray, 2 T. R. 358. {(i) See further C'ullis on Sewers; Com. T)ig. tit. Sewers ; Woolrych on the Law of Waters; and Dig. P. iii. tit. Sewers. (/)) Callis, 131). (7) Netherton v. Ward, 3 B. & A. 21. (;) Callis, 139. (s) Callis, 137, citinjr 37 Ass. pi 10. {t) Callis, 131. (M) 8 H. 7, 5 ; Keig'hiey's case, 10 Co. 139. (j:) Swanlcy v. Lime (Corp.) 5 Bing. 91. (ij) Sid. 701. {z} 37 Ass. pi. 10 ; 8 H. 7. («) lb. And see R. v. Essex, (Comm. Sew.,) 1 B. &. C, 477. (/;) Keilw. 52; Callis, 116. (c) Callis, 118; March. 198. Sec also Devonshire (Earl") v. Gibbons, Hardw. 169. (? party assessed. (i) The vvhoJc level will be charged it lands bound bj'- tenure, &c. are them- selves overflwvn by the sea ; 'or V/h-ere no persons are known who are bound by tenur(5 or otherwise ; or the party so bound is unable, or in cases of extraorifihary swelling iides or floods. (A:) [*124]., *CHAPTER III. INCORPOREAL HEREDITAMENTS. Sect. I. § 115, Of incorporeal heredita- ments IN GENERAL. Sect. II. 117. Advowson. Sect. III. 133. Tithes. Sect. IV. 149. Rents. Sect. V. 259, Annuities and rent-charges. Sect. VI. 268. Right of common. Sect. VII. § 360. Right of way. Sect. VIII. 398. Water and water-courses. Sect. IX. 444, Right to light and air. Sect. X. 481. Right to pews and other easements. Sect. XI. 529. Offices. Sect. XII. 598. Dignities. Sect. XIIT. 623. Franchises. SECTION I. OF incorporeal hereditaments in general. § 115. What is an incorporeal heredita- ment. In JJender. In PrcndtT, Profits i\ prendre. Easement, what it is. § 115. Different kinds of Easements. 116. Appendancy and Appurtcnaiicy. What necessary to make Append- aney or Appurtenancy, Exceptions to the Rule. § 1 15. An incorporeal hereditament is a right issuing out of a thing corpo- {h) Masters v. Scrogjrs, 3 M. & S. 447. (i) Stafford V. Hamston, 5 J. B. Moore, 608 ; S. C. 2 B. 5^ B. 691. (k) Dy. 33 ; Keighley's case, sup., Cullis, 145. INCORPOREAL HEREDITAMENTS, 101 rate (whether real or personal,) or *concerning, or annexed to, or p^igc-i exercisable within the same.(o) It may be a right issuing out of L J the land or other thing belonging to the owner, which is said to be in render, as rent, toll or other franchise, or it may issue out of the land or other thing belonging to another, as common, &c., when it is said to be in pren- der.{b) These latter rights may again be distinguished into rights coupled with a profit which are called profits a prendre, or rights without any profit which are called easements. A right to take something out of the soil of another is a profit « prendre, as the right of common, and also some minor rights as a right to take drifted sand, or a liberty to fish, fowl, hunt, hawk, &c., see Dig. P. iii. tit. Prescription, also further, post, § 498. An easement is a privilege without a profit, as a right of way, and rights connected with water, (see ante, § 398), light and air, (see further, post, § 444, et seq.), besides some other particular rights of this kind, as a right to support from a neighbouring wall.(c) Such rights may be further dis- tinguished into easements to be exercised on the land of another, as to pass over his land ; or such as prevent a person from using his own land to the prejudice of his neighbour's easement, as where he may not dig away the support which his neighbour has a right to for the upholding his houses or land.(rf) As to the rights connected with trees growing on adjoining lands see ante, § 96. Incorporeal hereditaments not being visible property, capable of actual corporeal occupation, are held not to be within the 43 El. for the relief of the poor, and consequently not rateable, (see Dig. P. iii. tit. Poor) ; and the same law is made applicable by 5 & G AV. 4, c. 50, to the highway rates (lb. tit. Highways); but the rule is not extended to the sewers rate. (See ante, § 114.) *§ 116. To incorporeal hereditaments are incident appcndency r^^nfiT and appurtenancy. A thing appendant is that, which beyond me- •- -' mory has belonged to another thing more worthy; appendants are there- fore ever by prescription ; but a thing appurtenant may be created at this day, as if a man at this day grant to another and his heirs common in such a moor for his beasts levant and couchant : or if he grant to another com- mon of estover or turbary in fee-simple, to bo burnt or spent within the manor; by these grants these commons are appurtenant to the manor, and shall pass with the grant thereof ;(e) and if a thing which may be append- ant or appurtenant, had always passed Avilh the manor to which it belonged by the words cumpertinentiis, it must be taken to be appendant.(/) But to make a thing appendant or appurtenant it must agree in quality and nature with the thing whereunto it is appendant or appurtenant, as a thing corporeal eannot properly be appendant to a thing corporeal, nor a thing incorporeal to a thing incorporeal, but things incorporeal which lie in grant, as advowsons, commons and the like, may be appendant to things corporeal, as a manor, house, or lands ; or things corporeal to things incorporeal, as {a) 1 Inst. 19, 20 ; 3 Comm. 20. (b) Prcst. Estates, 8, 9. (c) Brown v. Windsor, 1 Cr. &, .T. 20. id) StanscU v. Jolland, 1 Sclw. N. P. 435, 10(h cd. ; Wyatt v. Harrison, 3 B. & Ad. 871. (e) Dy. 30 b; 1 Inst. 121, b. ; Doddcridge on Advowsons, 38. (/) 1 RoU. Abr. 230, 1.27. ^ *7 103 crabb's law of real property. lands to an office, but as they must agree in nature and quality common of turbary or estovers cannot be appendant or appurtenant to land, but to a house to be spent there ;{g) so, a leet that is temporal cannot be appendant to a church or chapel ;(/t) so, a seat in a church cannot be claimed by pre- scription as appendant to land, but to a house ; for that the seat belongs to the house in respect of the inhabitancy thereof; and therefore although the house be part of a manor, yet, in that case, the seat may be claimed as appendant to the house. (i) Another requisite to make a thing appendant or appurtenant is that the ^ principal or superior thing must be of *perpetual subsistence, there- L -^ fore if an advowson be appendant to a manor, it is in truth append- ant to the demesnes of a manor which are of perpetual subsistence, and not to rents or services. As a rule, if a thing appendant be once severed, it shall never afterwards be appendant ;(A:) but to this rule there are excep- tions, see infra, § 118. The rule that things incorporeal cannot be appendant or appurtenant to things incorporeal admits of some exceptions, for return of writs or a leet may be appurtenant to a hundred; so may waif and stray be appurtenant to a leet, and yet these things are both intorporeal,(Z) and it seems rather to depend upon whether the things are capable of union without any incon- gruity, (m) The principal incorporeal hereditaments entitled to distinct consideration are — l.Advowsons; 2, Tithes; 3. Rents; 4. Annuities; 5. Right of Com- mon; 6. Right of Way; 7. Right to Water and Watercourses; 8. Right to Liffht and Air; 9. Right to Pews and other Easements; 10. Offices; 11. Dignities; 12. Franchises. SECTION II. ADVOWSONS. I. "Nature anti iDvopcrtfes of S[1)\)oto.5on«. § 117. Definition of an Advowson. | § 118. Advowson Appendant. 118. In gross. 11. 33iffcvtnt UfiiTJS of SCtibotosons. 119. Presentative, | 119. Collative. 119. Donative. III. IJvcscutntfoii. 1. Wherein it consists. 120. Presentation distinguished from Nomination. 1:20. Appointment of Curates. Curates to Chapels of Ease. ig) 5 Ass. 9 ; 1 Inst. 121, b. ; 1 Sid. 354. (h) 10 E. 3, 5; Tirringham's case, 4 Co. 36. (/) 1 Inst. ]29, b. (yt) 2 Mod. 2; 2 T. R. 41-5. (J) Hargr. Co. Litt. 121, b, citing 8 H. 7, 1, 2, 3 ; Rast. Entr. 128. (m) lb. Sec also 1 Vent, 18G. ADVOWSONS. 103 *2. How to be made. [*128] [§ 121, Must be by Deed. | § 121. Time of Presentation. 3. By whom to be made. 122. By the very Patron, Guardian, Infant. P'enie Covert. Ilcir, Executor. Copareeners. Composition to present in turn. 122. By Tenant in Dower. (wporations. Pajjists. Presentation by Lapse. Presentation by the Queen, 4. Incidents to Presentation. 123. Admission. | 123. Institution. 123. Induction. 5. When Presentation may be revoked. 124, By the Queen, | 124. By a common Person. 6. When void or voidable. 125. In case of Deprivation. IV. CRrant of an Sltiboiuson. 1. Hoiv it passes. 126. Under what Words. | 126. When it is Appendant. 126. Advowson in gross. 2. Grant of the next Avoidance. 127. When the next Presentation does not pass. 127. When pureliase of next Presentation is simoniacal. 127. What next Avoidance will pass, 3. Grant by the Crown. 128. Difference between Grants by the 128. In the case of an Advowson Ap- Crown and a Subject. pendant. 1'28. In the case of a void Turn. V. ^[pijropifatfou an^i Kmpro^prfatfou. 1. Appropriation. 129. Definition. I 129. Vicarage by Endowment. Vicar and Perpetual Curate. | Disapprobation. 2. Impropnation. 130. Appropriation and Impropriation distinguished. *VI. Jtncflicul.'S to an SltiboiDsoit. [*129] ^ 131. Advowson a valuable Thing. When not a Matter of Profit. Estates in an Advowson. Curtesy. Dower. § 132. Convcj'ance of an Advowson. Alienation by Tenant in Tail or for Life. By Tenant for Years. 104 crabb's law of real property. § 117. An advovvson may be considered as to — 1. The nature of an advowson in general; 2. The different kinds of advowsons ; 3. Presenta- tion and impropriation ; 6. Incidents to an advowson ; 7. How an advowson may be lost or suspended, (see post, Title to Things Real;) 8. Injuries affecting an advowson, (see post. Injuries to Things Real.) flaturc of an SItriJotoson in general. An advowson is a right of patronage to a church or benefice ; the person to whom the right of presentation belongs is called the patron, originally the advocatus, because the founder of every church was also the maintainor and protector thereof, and advocatio signified not only the superintending care bestowed on all the temporal concerns of the church, but also the right which flowed out of the same, whence is derived the word "advowson." The rights and interests of the patron are recognised as well in the Statute as in the Common Law, and accordingly the consent of the patron is required on many occasions, as by the 17 G. 3, c. 53, for mortgaging the glebe, &c., in order to provide a residence for the incumbent ; by the 42 G. 3, c. 116, as to the redemption of the land-tax b)'^ the incumbent; by the 4 & 5 W. 4, c. 30, as to the exchange of common fields, where the incumbent is interested; by the 0& 7 W. 4, c. 115, as to the inclosure of common fields ; and also by the Church Building Act, see Dig. P. i. ii. tit. Benefices, Churches, Commons, Exchanges. *iim *118. An advowson may either be appendant or ingross, see ante, L J § 116. An advowson is said to be appendant to a manor, when it has been so annexed to it as to be parcel thereto and passed by a grant of the manor cum pertinentiis ;{n) but when the properly of the advowson is separated from the manor or other thing it is said to be in gross. (o) It maj'- be made in gross three several ways, as if a man grant a manor Avithout the advowson ; or the advowson itself be conveyed away ; or if the owner of an advowson presents to it, as if it w^ere in gross. (/)) An advowson may be appendant to so many acres of land, or to one acre;((7) or the advowson of a vicarage may be appendant to a rectory ;(r) so, an advowson may be appendant for a part, and in gross for another part ;(.s) and although as a rule an advowson once severed cannot be again appendant, yet an advowson may be appendant for one turn and in gross for the other ;(/) and if co-parceners make partition of a manor and the advowson is allotted to one, then it becomes in gross ; but if the co-parcener to whom it was allotted dies without issue, and without disposing of the advowson, it will go to the other sister, and again become appendant ;(m) so an advowson may become again appendant, when the act which made it in gross was avoided, as where an advowson was mortgaged, whereby it became in gross, and it was afterwards redeemed, then it became again appendant ;(t') so, on (n) 33 II. G, 4, b. (o) 1 Inst. 120. (p) Dy. 103; Perk, sect, 104 ; 1 Roll. Abr. 2.32. (7) Roll. Abr. 23. (») Dy. 350 b. ; Moor, 894. (s) Dy. 78. (t) 1 Inst. 122, a. (m) Finch's case, 6 Co. 61, a. (P) R. V. Chester (Bishop,) 3 Salk. 401. PRESENTATION. 105 a recovery after a usurpation ;{w) so, if it be expected out of a lease for life of a manor, it becomes in gross durinp- the continuance of the lease, but upon its expiration it becomes again appendant.(ic) *ii. JBiffcrrnt Ui'ntis of ^tii)o\usons. [*i3i] 119. An advowson is either presentative, collative or donative. An advowson presentative is when the patron presents the parson to the ordi- nary to be instituted and inducted in the church,(^) as to presentation see infra, § 120. An advowson collative is that which is given absolutely by the bishop.- Collation is, in the case of a bishop where he has the sole right, what insti- tution is in the case of an advowson presentative. No possession is gained by a collation against the Q,ueen.(z) An advoAvson donative is where the patron puts the clerk in possession without any presentation to the ordinary, such livings being privileged and exempt from the jurisdistion of the bishop, and visitable by the patron only. (a) In this case, the party is in full possession immediately on his nomination, and may maintain an action for money had and received against any person who takes the profits. (i) If the patron of a donative once present to the ordinary, and his clerk is admitted and instituted, it is said that the avowson is now become presenta- tive, and shall never be after donative, 1 Inst. x. 344, a., sed contra Ladd v. Widdows, 2 Salk. 541 ; where it was held, that though a presentation might destroy an impropriation, it could not destroy a donative, because the crea- tion thereof was by letters-patent. As to donatives under 1 G. 1, c. 10, see Dig. P. ii. tit. Benefice, Church. III. 33rcsfntatiou. 120. A right of patronage is principally exercised by the act of presenting a clerk. This subject may therefore be considered under the following heads : — 1. Wherein it *consists ; 2. How and when to be made; pstioo-i 3. By whom to be made ; 4. Incidents to presentation ; 5. When L it may be revoked ; 6. When void or voidable. 1. Wherein presentation consists. Presentation is a known term in law, and signifies the offering a clerk to the bishop to be admitted and instituted. It is distinguished from nomina- tion, which is the ofl^ering a clerk to the patron ; and these two things may be in different persons, thus trustees may have the right of presentation, and the cestui que trust must nominate ;(c) so, the mortgagee has the right to (m) Hob. 140. (x) Finch's case, sup. (y) 2 Comm. 22. (i) R. V. York, (Bishop) 1 Leon. 226. ('») Sulliv. Lcct. viii. (^h) 1 T. R. 403. (c) Seymour v. Bcnnet, 2 Atk. 462 ; Botcler v. Allington, 3 Atk. 458 ; Att.-Gcn. v. Scott, 1 Vcs. 415 ; Mutter v. Chauvel, 1 Mcr. 493. 106 crabb's law of real property. nominate ;(f/) so, a person may grant to another and his heirs, that when- ever the church becomes vacant he will present such person as grantee may nominate, "and this is a good grant ;"(«) and the nomination is the effect of the advowson, and he who has it is the patron ; and the person who is to present is the subject or servant to execute ;(y"j but where the nomina- tion and presentation is in different persons, the presenter is to judge of tlie qualifications of the nominee in the same manner as the bishop does.(§') By the 6 G. 4, c. 16, the assignees of a bankrupt, and by the 1 «fe 2 V. c. 110, the assignees of an insolvent, must present the person nominated by the bankrupt and insolvent. See Dig. P. ii. iii. til. Bankrupt and Insolvent Debtors. The appointment of a curate to officiate under an incumbent in his own church, must be by such incumbent's nomination of him to the bishop. (A) The appointment of a curate to a chapel of ease belongs properly to the incumbent of the mother church, who being instituted to the cure of souls P^,„„-| *throughout the whole parish may therefore himself serve in the L -^ chapel as well as his curate or chaplain, (t) unless it be in the case of chapels augmented by the governors of Glueen Anne's Bounty. See Dig. P. i. ii. tit. Augmentation, Benefice. But by agreement of the bishop, patron and incumbent the inhabitants may have a right to elect and nomi- nate a curate ;(Ar) if there be an agreement it must be by deed ;(/) but there may be a prescription, in which every thing is presumed to be proper. (/) 2. How and within what Time to be made. 121. Presentation must he to a void benefice ;(m) but there may be a presentation to a deanery, archdeaconry, or prebend, (n) though not to a donative, see ante, § 119. Before the Statute of Frauds a presentation might be made by parol, and if it were by writing it was not necessary to be by deed, being in the nature of a letter of recommendation of the clerk to the bishop ;(o) but now if it be a common person he must shew how the presentation is made, for a presen- tation conveys an interest in lands and tenements ;(/?) so, it is said that the queen may present by parol if the bishop be present ;(/)) the usual way however is to make a presentation by instrument under the Great Seal.(*7) Regularly the presentation by the queen ought to shew by what title she presents, for if she mistake her title, as if she presents rntione lapsus, when she is very patron, she is deceived, and her presentation is void ;(r) other- wise if she present generally, without saying by what title. (s) (d) Amhurst v. Dawlinp, 1 Vcrn. 401 ; Gardiner v. Griffith, 2 P. Wms. 404 ; Mackenzie V. Robinson, 3 Atk. 559 ; Croft v. Powell, Com. 609. {e) Moore, 49. (/) Hare v. BicUley, Plowii. 5-29 ; Calvert v. Kitchen, Lane, 72. («■) R. V. Stafford, (Marq.) 6 T. R. 646. (h) 2 Burn's E. Law, 55 f; Phill.ed. (i) Hob. 67 ; 2 Vcs. 427. (k) Herbert v. Westminster, (Dean, «fec.) 1 P. Wms. 773. (l) Dixon V. Kershaw, Amb. 528. (/n) Owen v. Stainol, Skinn. 45. (n) 2 Roll. Abr 342; 1 And. 24L («) 1 Inst. 120, a. Ip) 1 Brownl. 162. ('/) Cro. Jac. 248. (r) Green's case 6 Co. 29 ; Cro. Car. 99. 592 ; Vaugh. 14. (s) R. V. Thorncborough, 1 Mod. 254. Presentation. 107 Every common person ought to present within six months after the avoid- ance of the church by the death of the *incumbent ;(^) otherwise the r*,.;}^-] presentation lapses to the bishop, even although the patron presents, •- -' if his clerk is refused ;(«) so, if the church becomes void by statute, as by acceptance of a plurality •,[x) and the six months shall be reckoned by the calendar ;(?/) but if the avoidance be by resignation or deprivation the six months do not commence until notice of the avoidance given by the ordinary to the patron ;[z) so, though the temporalities are in the queen's hands, for the guardian of the spirituaUties ought to give notice. (a) 3. By whom to be made. 122. A presentation ought regularly to be made by the very patron, and if not, the nominee of the patron must be presented, see ante, § 120. By common right the parson, and not the patron of the parsonage, shall be the patron of the vicarage ;(&) so by common right, the bishop is patron of all his prebends. (c) As to who may present, it will be necessary to consider presentation by guardian or infant, feme covert or husband, heir or executor, co.parcener or tenants in common, tenant in dower, and papists ; by lapse, and by the queen. Guardian by nurture or socage of a manor whereunto an advowson is appendant shall not present to a church, because he can take nothing for the presentation for which he may account to the heir, and therefore the heir, although an infant shall present. (c?) A feme covert cannot present alone, bvit the presentation must be by husband and wife ;(e) and although the right of *patronage descends ^^ „_-, to the heir of the wife, yet the right of presenting during life belongs L -1 to the husband, who is tenant by the curtesy,(/) see further infra, as the co-parceners. As to when the heir and when the executor may present, see ante, § 9. If co-parceners agree, they are to join in the act of presentation, other- wise the eldest shall have the preference, and afterwards the restjn turns, (g-) the court will direct them to draw lots, who shall have the presentation ;(/t) but when the right is in joint tenants or tenants in common, and there is no composition in writing to present by turns, they must of necessity join in the presentation, for if they present singly, the bishop may refuse the clerk. (i) A composition to present in turn may be either by record, or deed, or parol. A composition by parol however can only be between privies in blood ;(A:) between strangers it must be by deed.(A') Where an advowson («) 3 Leon. 4G; 2 Roll. Abr. 363, 1. 25. (v) Dy. 337 b. {X) Dy. 237 a. ; 4 Inst. 632 ; W. Jo. 338 ; R. v. Canterbury (Archb.) Cro. Car. 357. (y) Dy. 327, in marg. (2) Green's case, sup. («) 2 Roll. Abr. 365;i. 2R. (b) 2 Roll. Abr. 336, 1. 12. 25. But see, contra, as to parson impropriate, Mallet v. Trigg-, 1 Vern. 42. (c , 3 Co. 75 b. (d) 3 Inst. 156; Arthington v. Coverley, 2 Eq. Ca. Ab. 518; Hearle v. Greenbank, 3 Atk. 710; Sherrard v. Lord Hardborough, Amb. 105; Kensey v. Langham, Cas. temp. Talb. 143 ; and see Cro. Jac. 99. (e) Gibs. 794 ; Wats. CI. L. c. 9. ( /■) Harris v. Nichols, Cro. EI. 19. (g) 1 Inst. 18, b. ; Gibs. 794. (/ii Seymour v. Bennett, 2 Atk. 482. (i) 1 Inst. 18, b. (A) Salisbury (Bp.) v. Phillips, 1 Salk. 43 ; S. C. Carth. 505 ; 12 Mod. 321. i lOd crabb's law of real property. is held in common, and the rota of presentation is not expressly settled, the first and peaceable presentations are evidence of composition between the parties ;(/) and prerogative presentations are not turns to deprive a patron of his turn.(/) If two sisters, co-parceners, present jointlj^ then marry and settle their estates and die ; the husband of the eldest, tenant by the curtes}', shall present first, as assignee, for the grantees of parceners have the same privileges as parceners themselves ;(m) so, if two parceners assign their part of an advowson severally. (n) If upon a presentation the church be full, the turn is served, and if an incumbent be deprived quia mere laicus, for -, the church was full till the declaratory *sentence ;(o) but if the pre- L -J sentation be wholly void, it shall not serve the turn.(o) If a man seised of an advowson die, leaving a widow, the heir shall have two presentations, and the widow the third as her dower, and she may recover the same in an action, or it may be assigned to her.(/)) When a corporation presents, it must be under their common seal, and by the true name of their corporation, ((7) Papists are by several statutes prevented from presenting to benefices, see Dig. P. i. tit. Papists. If a patron does not present within six months after avoidance, the church lapses to the bishop ;(r) and it will incur, from the time of institution into a second benefice, against the patron, if notice be given him, otherwise not ;(») the lapse occurs, though the patron be an infant. (/) If the bishop does not present, the church lapses to the archbishop ;(m) if the archbishop does not present, then it lapses to the queen ; or to her successor ;(t') and no lapse incurs where the queen is patron, although she does not present within the six months ; but if the queen does not present, the ordinary may have the church served ;(j') so, after a lapse, if the patron presents before the bishop or archbishop collates, his clerk shall be institut- ed ;(ou. 131. The most important incidents to an advowson are what regards estates in an advowson, and conveyances of such estates. An advowson or the general right of presentation was held to be a valuable thing which might be sold and its annual value estimated ;(f) but the exercise of this right is deemed a matter of trust,(^) and therefore an advowson will not pass under the name of " commodities, emoluments, profits, and advantages ;"(/*) and on the same principle the next immediate pre- sentation cannot be sold ;(i) and on the same principle bonds given to resign (;/) Biitton and Ward's case, Palm. 113. (z) Plowd. 501. (a) Plowd. SU11. ; 1 Roll. Abr. 210. (h) Inst. 150, a. ; W. Jo. 3. (c) Baldwin v. Wine, Cro. Car. 301. ('/) Gibs. 819 ; and sec 1 Consist. 165. (r) Dno V. Thomas, 9 Ad. vt. Ell. 556 ; 1 Per. & Dav. 578. (/) Flcta, 1, 3, f. 71 ; Hritt. 1S5. ) but it seems to have been otherwise where the advowson was in gross. () Smith V. Wyatt, 2 Atk. 364. (7) Huhne v. Pardoc, M'CkJ. '3.)3; S. C, 3 E. & Y. 116. (0 1 !"«*• L^^^, a. (s) Cro. Jac. 301 ; 1 Vent. 173 ; R. v. Ellis, 3 Price, 323 ; S. C, 3 E. & Y. 781. TITHES, TO WHOMDUE. 119 the 33 H. 8, c. 7, s. 7, recoveries and fines of tithes and other ecclesiastical possessions which were in lay hands might be sufiered and levied in the same manner as of lands ; but tithes must have been named to pass in such assurances. (/) Being incorporeal hereditaments they pass by grant only, but not without deed ;(z«) and they cannot be granted by copy unless the custom permits •,{v) so, they are not subject *to the customary modes of descent as to p*jg3-| gavelkind or borough-English.(x') ^ Tithes of which a man is seised in fee may be devised as herediia- ments ;{y) but not under the word " lands,"(r) unless the devise cannot be otherwise interpreted ;(a) but it seems not to be settled whether tithes would pass under a devise of a messuage and tenement, " and all the profits arising therefrom at D. in the parish of B.;"(6) but the word "tenements" in a private Act of Parliament includes tithes. (c) The Will Act, 7 W. 4 & 1 V. c. 26, includes tithes; (see Dig. P. iii. tit. Wills ;) and as it relates to all real property will necessarily extend to rent-charges substituted for tithes under the Tithe Commutation Acts. Tithes are the only incorporeal hereditaments made liable to the poor- rates by the 43 El. (See Dig. P. iii. tit. Poor.) So, a sum of money given under an Inclosure Act to a rector or vicar, in lieu of tithes, which are rate- able, is equally rateable :{d) and a vicar is liable to poor-rates for his tithe ;(c) so, they are liable to the payment of fruit ;(/) but the common law relieves ecclesiastical persons from toll, murage, and pontage, (^) though not, as it seems, from the sewers' rate.(/i) Tithes are expressly enumerated among the real property liable to the land-tax in 38 G. 3, c. 5. *By the Tithe Commutation Act, 6 & 7 W. 4, c. 71, the rent- p^jg^-i charo-e substituted for tithes is made liable to the same rates as the L tithes have been. III. ^0 toliom true, 135. Tithes of common right belong to the parson of that church w^ithin the precincts of whose parish they arise,(e) the limits of which are to be ascertained by reputation ,(^■) or by the unresisted claims of parochial (/) Gibson V. Clarke, 1 Jac. & W. 159 ; 3 E. & Y. 946. (u) Chavc V. Cahiiel, 3 Burr. 1873. (f) Hoe v. Taj^lor, Moor, 3dj. (x) Doe V. Llandaff,2 N. R. 491 ; S. C. 2 E. & Y. 557. (w) Ritch V. Sanders, Sty. 261 : Swinb. 140. (z) Perkins v. Wildc, Noy. 95. (a) Saunders v. Ritch, Sty. 279 ; Ashton v. Ashton, 1 P. Wms. 386. See also Hobson V. Blackburne, 1 My. &, K.570. (b) Doe V. Jefferson, 2 Bin?. 118; S. C, 2 .1. B. Moore, 260. „ „ ^ , (r.) Powell V. Bull, Com. 265 ; S. C, 1 E. & Y. 733 ; R. v. Shingle, 1 Str. 5o0 ; S. C, 1 E. & Y. 738. See also Chatficld v. Ruston, 3 B. & C. 863 ; S. C, 5 D. &. R. 69o ; R. v. Kimbolton, 6 Ad. & Ell. 603, as to tithes under Inclosure Acts. (d) I,owndes V. Home, 2 Bl. 1252 ; S. C, 2 E. & Y. 340. Sec also R. v. Boldero, 4 B. & C. 467 ; S. C, 6 D. & R. 557 ; R. v. Wistow, 5 Ad. &. Ell. 250 ; S. C, 6 Ncv. & Man. 567. (f) R. V. Turner, 1 Str. 77. ( "/•) 2 Burn's E. L. tit. First Fruits. (?) 2 Inst. 642. (A) Callis on Sewers, 131 ; Com. Dig. Sewers (E. 5). And see Soady v. Wilson, 3 Ad. & Ell. 248, and Diff. P. iii. tit. Sewers. (!) 2 Inst. 641 ; Prideaux on Tithes, 302; 2 Comm. 27. Ik) Nichols V. Parker, 14 East, 331. 120 crabb's law of real property. authorilies, or the perambulations whereof are generally made every year ;(/) but one person may prescribe to have tithes within the parish of another parish, which is called a portion of tithes ;(m) and this is so distinct from the rectory, that if the person having it purchases the rectory, the portion is not extinct, but remains grantable ;(?2) and where a layman or portionist has been long in possession, courts of equity will not disturb the possession, but leave the rector to establish his right at law.(o) As between the parson and the vicar of a parish, all tithes to which the latter cannot prove a title by endowment or prescription belong to the parson ;(/j) and as the tithes do not belong to the vicar de jure, endowment will not be presumed, but must be shewn on his part;(5') but a vicar has j.^,p._-, *the same right to all tithes in his endowment, as a rector has of L -' common right, (r) unless a usage to the contrary be shewn ;(r) but if a vicar have received tithes for many years not mentioned in his endow- ment, it seems not settled whether a subsequent augmentation or endowment shall be presumed :(s) the deed of endowment is not conclusive in questions between rector and vicar.(?) 136. Tithes extra-parochial or within the compass of no certain parish belong to the Crown, (?/) and the title of the Crown is not confined to such extra-parochial lands as were forest or parts of forest land •,{x') and under a grant of tithes arising from lands de novo assartatis et assarfandis within the extra-parochial parts of a forest, it was held, that the grantee was not entitled to the tithes of lands in the occupation of the keeper of the forest, nor of lands enclosed bj'- a private person by encroachment upon the forest. (?/) The tithes of assart lands in the grant of E. 1 should be confined to such lands as were then assarted or intended shortly so to be, and not be extended to such as should be so in future ages.(z) If the queen grants them, her patentee shall have them;(«) but by custom a parson or vicar may be enti- tled to the tithes of extra-parochial lands. (A) By the 2 & 3 E. 6, tithes of cattle depasturing in commons are made pay- able to the parson or vicar of the parish where the owner of the cattle lives; and by the 17 G. 2, c. 37, where waste lands formeri}'^ fens and marshes are drained, and the parish to which they belong cannot be ascertained, the (I) Phill. Ev. 249. See also Clarke v. Jenninajs, 4 Gvvill. 1 124; Jcnkinson v. Royston, 5 Price, 504. (m) Gibs. G63. (n) Sir E. Coke's case, 2 Roll. Rep. 161 ; 1 Gwill. 375; 1 E. &, Y. 314. Sec also on this point The Serjeants' case, Dy. 83 a; 1 Gwill. 119; 1 E. & Y. 51 ; Futter v. Barome, 4 Co. 31 ; Godb. 35 ; 1 E. &. Y. 86 ; Downes v. Moorman, Bunb. 18.) ; 2 Gwill. 6.")8 ; 1 E. 6 Y 803 ; I,ewis v. Younff, M'Clel. 1 13 ; S. C, 13 Price, 3)4 ; 3 E. & Y. 1 1.*^5 ; Woolley V. Piatt, M'Clel. 4GS ; S. C", 3 E & Y. 106S; PLllatt v Ferrars, 2 B. Ac P. 54-3 ; S. C, 2 E. &, Y. 494 ; Carlisle (Bp.l v. Blain, 1 Y. & J. 123 ; Wyld v. Ward, 3 Y. & J. 1 '2. (&) Scott V. Airy, cited 1 Anstr. 311. See also Oxenderi v. Skinner, 4 Gvvill. 1513. (/>) 2 Bulst. 27; Grene v. Austin, Cro. Jac. 116; S. C.,Y(lv 87. {(j) Grene v. Austen, sup. ; and see Lady Dartmouth v. Roberts, 16 East, 334. (r) Fox V. Ruftv, Bumb. 87. (s) Twiss V. Brazen-Nose College (Oxon), Hard. 228. (/) Gibs. 719. (w) 2 Inst. 647 ; 1 Roll. Abr. 6.i7. (x) Ait.-Gen. v. Eardley (Lord), 8 Price, 39 ; S. C, Dan. 271. (y) Parry v. Gibbs, 4 Gwill. 1490. {z) Bond v. Brown, Bunb. 312. C") 1 Roll. Abr. 657, 1. 15. (6) 14 IL 4, 17 ; Sav. 60 ; Com. Dig. Dismes, (E. 3) ; 1 E. &. Y. 29. TITHES, BY WHOM PAYABLE. 121 tithes arising therefrom are due to the tithe-owner of the parish lying nearest to such lands. By the common law no one was capable to take tithes in pernancy, but a spiritual person, or the queen, who is ^persona mixta \{c) yet by p*iK(.-i indirect means a layman may take them, and the lord of the manor L -* may prescribe to take all tithes within his manor. (i!t3 titomo JFithcs. 139. Every person was bound before the Tithes Commutation Acts to set out the tithes of his own land, but the manner of doing it was for the most part governed by the custom of the place ;(n) yet if the owner would not cut his crop before it was spoiled the parson was without his remedy ;(o) r*l591 ^"^' ^^^ parson, vicar, impropriator, or farmer *coukl not come him- L -' self and set out the the tithes without the license and consent of the owner, and if he did, he would render himself liable to an action of trespass. f/j) As this part of the law of tithes will very shortly cease to be in operation, it is not necessary to add anything further on the subject. (n) Hall V. Mackctt, 4 Gwill. 1160. (0) Godolph. 394. (/)) Dcggc, p. 2, c. 14. EXEMPTIONS FROM TITHES. 123 VII. livcmptiojis from STitiics. 140. As a rule, one spiritual person does not pay tithes to another, as if a vicar be endowed of glebe and small tithes he shall not pay tithes of his glebe to the parson ;(^) so, a parson shall not pay tithe to the vicar for his glebe ;(r) so, if a vicar be endowed of small tithes generally, the parson shall not pay small tithes, (s) unless the endowment was of tithe or glebe expressly, according to the maxim, ecclesias declmas solvere non debet, but this maxim applies only as between rector and vicar of the same church ;(/) so, the lessee of the parson shall pay small tithe to the vicar ;(?<) so, if the land comes to the parsonage after the endowment. (y) A spiritual person may prescribe in non dechnando •,[x') so, his lessee ;(a') so, the copyholders of a manor may allege a prescription in the bishop, lord, of the manor, for their discharge ;(?,') so, a parson having glebe in another parish. (z) Regularly no laj'man can be discharged from the payment of tithes; but to this rule there are several exceptions, and lajanen have been discharged four several ways — as 1st. *By the Pope's bull;(o) 2. By prescrip- (-*i/.f,-i tion ; 3. By composition real ; and 4. By Act of ParHament. L -^ Prescription is of two kinds, namely, prescription in non raodo decimondi, which is a total discharge, and prescription de modo decimundi, which is a partial discharge. The queen by her prerogative may prescribe in non modo decimandi, for she is mixta persona \{b^ but without a particular pre- scription she will not be discharged from tithes for the ancient demesnes of the Crown ;((;) so, if she aliens the land the prescription is destroyed ;(c) so, a man may prescribe that by the custom of the country no tithes are paid for the milk of ewes ;(rf) but it is said in the books that a layman may pre- scribe de modo decimandi, but not in non modo decimandi, because without special matter shewn it shall not be intended that he has any lawful dis- charge ;(e) so, a man may prescribe to be discharged from the payment of tithes because that a modus has been paid time whereof, &c., in lieu of the same tithe, and such modus may commence upon a real composition, (/) A real composition was when land was given by a man to a parson with consent of the patron and ordinary, that he might be discharged of all his tithes, and a modus was paid in lieu of them,(g) and this discharge went with the land into whatever hands it camc.(/i) By Act of Parliament lands in the hands of all religious bodies were discharged by their order from the payment of tithes, and all the lands which belonged to such orders at the time of the dissolution were by force of the statutes in the reign of Hen. 8 declared exempt from tithes, whether in the hands of the King or his patentees ; but it has been held that a tenant for life or years is not within the statute for discharging tithes p*ipj-| heretofore part of the possessions of a *Cistertian abbey, and a L J (7) Blenco v. IVIarston, Cro. El. 479. (r) Moor, 475. (s) Blenco's case, Cro. El. 578. (J.) Warden and Canons v. Dean of St. Paul's, 2 Wils. Excheq. 1 ; S. C, 4 Prico, 65. (m) Blenco's ca?e, sup. fr) Moor, 910. (x) Wright v. Wright, Cro. El. 475. (y) Crouch v. Fryer, Cro. El. 7S4. (z) Roll. Abr. 653, 1. 30. («) 2 Inst. 653. (6) Moor, 486 ; W. Jo. 387. (c) Compost v. , Hard. 315. id) 1 Roll. 654, 1. 15. (p) Petre v. Blencoe, 3 Anstr. 945. (/) W. Jo. 369 ; Moor, 539. {g) W. Jo. 369. (A) Cro. Car. 423. 124 crabb's law of heal property. tenant in tail having- the inheritance is discharged only while the lands are in his own man u ranee, (z) The general view of the law of tithes will, it is presumed, suffice to con- nect the old and new law, as no questions can be raised on the subject of exemptions when the Tithes Commutation Acts come into full operation, provision being made by the Act for settling all matters of dispute previously. See further, infra, § 141 at seq. VIII. ^ii'm of tithes m\ti IXrut-chnrgcs ijutrcr the Eitlxtn Ctommutaticu Slcts. 141. The Tithes Commutation Acts are four in number, namely, the 6 & 7 W. 4, c.,71, the General Act; 7 W. 4 & 1 V. c. 69, an amendment of the same ; 1 & 2 V. c. 64, for facilitating the merger of rent-charges; and the 2 & 3 V. c. 32, another amendment of the General Act. (See Dig. P. i. tit. Tilhes.) These statutes are to be considered as one enactment, the object of which is to substitute a corn-rent, payable in money, and perma- nent in quantity, though fluctuating in value, for all lilhes, the same to be payable in the nature of a rent-charge issuing out of the land charged there- witb, by two equal half-yearly payments on the 1st July and 1st January in every year. The law of tithes and rent-charges under and since these statutes respect, 1. The apportionment of the rent-charge; 2. The recovery of the rent- charge ; 3. The rateability of the rent-charge ; 4. Merger of the rent- charge ; 5. Other incidents to the rent-charge ; 6. Extent of the Tithes Commutation Acts as to rent-charges. r*162] *1. Apportionment of the Jlent-chargc. 142. The apportionment of the rent-charge under these Acts is of two kinds, namely, that which respects the land, and that which respects the person' entitled to the rent charge. As to the first of these apportionments: the 6 & 7 W. 4, c. 71, s. 33, directs that the total sum to be paid by way of rent-charge instead of tilhes, shall be apportioned amongst the several lands in the parish, having regard to the average titheable produce and productive quality of the lands, so that in each case the several lands shall have the full benefit of every modus and composition real, prescriptive, and customary payment, and of every exemption from, or non-liability to tithes relating to the said lands respectively, and having regard to the several tithes to which the said lands are severally liable. By sect. 58 the rent-charge intended to be charged upon any lands may, before the confirmation of the apportionment, at the request of the owner thereof, be specially apportioned upon particular lands, in such manner and proportion as he, with the consent of the person entitled to the rent-charge may direct; and by sect. 72, the Commissioners of the Land-lax are empowered, with the consent of two justices and at the request of the land-owners, to alter the apportionment. By sect. 55, a (t) Wilson V. Redman, Hard, 174; Arclib. of Canterbury's case, 2 Co. 46. RECOVERY OF RENT-CHARGE. 125 drauglit of every apportionment is to be made, which is to state the name or description and the true or estimated quantity in statute measure of the several lands to be comprised in the apportionment, and to set forth the names and description of the proprietors and occupiers, and whether the lands are cultivated as arable, meadow, or pasture land, or as woodland, common land, or howsoever otherwise, and to refer, by a number set against the de- scription of such lands, to a map or plan ; and such draught shall also state the amount charged upon the said several lands, and to whom and in what right the same shall be respectively payable. *143. By the 4 & 5 W. 4,c. 22, s. 2, it is provided, that all rent- ^^,^0-1 charges, moduses, compositions, &c., shall be apportioned in such L J manner on the death of any person interested therein, and the executors and administrators of such person shall be entitled to a proportion of such rents, &c., according to the time which has elapsed since the last periodical pay- ment up to the day of the death ; and as by sect. 86 of the 6 and 7 W. 4, c. 71, the provisions of that Act are made to extend to all rent-charges under this Tithes Commutation Act, it follows, that if the interest of the owner of the rent-charge should cease before the Isl January or 1st July, (the ap- pointed times of payment.) such owner or his representative will be entitled to a proportional part of the rent-charge for the time which may have elapsed from the last day of payment to the time of his interest deter- mining. 2. Recovery of the Rent-charge. 144. At the common law there was no distress for tithes, but the 7 & 8 W. 3, c. 'M ; 1 G. 1, St. 2, c. 6 ; 53 G; 3, c. 127, s. 6 ; 5 & 6 W. 4, c. 74, give summarj' powers to justices to enforce the payment of tithes against Quakers. By the 6 & 7 W. 4, c. 71, ss. 81, 82, the inode of recovering the rent-charge in arrear is by distraining for it in the same manner as a land- lord recovers rent in arrear. Such power is given to the owner at the expi- ration of twenty-one days after any half-yearly day of payment, but not more than two years' arrears shall at any time be recoverable by distress ; by which provision the law is so far altered that where, by an Inclosure Act, a corn-rent was made payable in lieu of tithes, the landlord was held liable to the payment of the same during all the time that he was legally in possession of lands. (A;) As a further remedy for the recovery of arrears, after forty days» possession of the land may be given to the owner of the rent-charge until the arrears *and costs are satisfied. The remedy of distress is also ^^-.a.--, extended to Q-uakers, whose goods may be distrained wherever found, L J whether on the premises or elsewhere ; but the Act directs, that, in all cases of distress upon the goods of such persons, they may be sold without the necessity, as in the case of other persons, of their being impounded for the five days. 3. JRateabiliti/ of Rent-charges. 145. By sect. 69 of 6 & 7 W. 4, c. 71, every rent-charge payable in lieu of (/. ) Newling V. Tcarse, 1 B. & C. 437 ; S. C, 3 E. & Y. 1094. July, 1846 9 126 crabb's law of real property. tithes is liable to the same rates as tithes have been; and as to what rates and taxes tithes were liable to, see further, ante, § 134. 4. Merger of Rent-charge. 146. The power of merging rent-charges, payable in lieu of tithes, is altogether new, and applies of course only to impropriate tithes ; by sect. 71 of 6 & 7 W. 4, c. 71, tenants, in fee-simple or fee-tail, who are possessed of both the land and the tithes or of any rent-charge in lieu of tithes, are enabled by any deed or declaration under their hands or seals, to be made in such form as the Tithe Commissioners approve of, to release, assign, or otherwise dispose of the rent-charge, so that the same may be absolutely merged and extinguished in the freehold and inheritance of the land on which the same has been charged. This power .was extended by the 1 & 2 y. c. 64 to all person having powers of appointment over the fee-simple of tithes or rent-charge, and also to tenants for life, in cases where the tithes or rent-charge and the lands are settled to the same uses, and to copyhold as well as freehold. By sect. 1 of 2 & 3 V. c. 62, it is provided, that on the merger of tithes or rent-charge the lands in which such merger takes effect shall be subject to any charge, incumbrance, or liability which lawfully existed on such tithes or rent-charge. Among the charges to which tithes were liable ^ ^ -, *may be reckoned the liability to the repairs of the chance], stipends L J of ministers, fee-farm rents, and the like ; and by sect. 2 of this last Act no deed or declaration for the merger of tithes shall be chargeable with stamp duty. By sect. 7 of 2 & 3 V. c. 62, tithes or rent-charge of glebe land may be merged. 5. Incidents to Tithes and Rent-charges. 147. By sect. 71 of 6 & 7 W. 4, c. 71, rent-charges are made subject to the same incumbrances and incidents as tithes were before this Act, and persons are to have the same remedies for recovering the same as if their right had accrued after the commutation ; but it is provided that nothing in the Act should give validity to any mortgage or other incumbrance which before the passing of the Act was invalid or could not be enforced. The mortgages and incumbrances here referred particularly to, are the chargings upon benefices prohibited by 13 El. c. 20. See Dig. P. i. ii. tit. Benefice. By the same section it is provided that every estate for life or other greater estate shall be taken to be an estate of freehold, and every estate in such rent-charge shall be subject to the same liabilities and incidents as the like estate in the tithes commuted for such rent-charge ; and where any lands were exempted from tithe while in the occupation of the owner thereof by reason of being glebe, or of having been heretofore parcel of the posses- sions of any privileged order, the same lands shall be in like manner exempted from the payment of the rent-charge apportioned on them whilst in the occupation of the owner thereof ; and where by any Act of Parlia- ment as in the case of redeeming the land-tax, (see Dig. P. i. tit. Land-tax,) and mortgaging benefices under 17 G. 3, c. 53, (see Dig. P. i. ii. tit. Bene- RENT. 127 fices) any tithes are authorized to be sold or otherwise, the rent-charges for which they are commuted are to be in like manner sold or otherwise. *6. Extent of the Tithes Commutation Acts as to Jient-charges. [466] 148. 13y the 6 «fc 7 W. 4, c. 71, ss. 26, 27, 28, provisions are made for giving land in lieu of tithes to ecclesiastical persons, but not to lay impro- priators. Not more than twenty acres of land may be so given in exchan Lambert v. Norris, 2 M. & W. 333. (u) London (City; v. Dias, Woodf. L. and T. 275, 4th cd. (x) Litt., s. 213. {y) Id., s. 136. {z^ lb. Walsal v. Heath, Cro. El, 656. (fl) Litt.,s, 217, [h) lb.; 2 Comm. 42. (1) Vide n. 1, 1(58, ante. (2) Cornell v. Lamb, 2 Cow. 652. (3; Rents-service exist in Pennsylvania, with all the incidents of that estate. They are generally reserved on conveyances in fee ; thai tliey mu«t be reserved on a conveyance of the land, and not granted outoi'tlie land, is plain, or tiicy would be rents-charge, Guthbertv. Kulnj, 3 Whart. 3(35. Rut by the Statute of Quia Employes, wherever that has extended, a conveyance of tlic fee left no est:] tc or possibility, sometimes called anescheator seignory, in tlic crrantor, and a rent reserved on such a conveyance v:as converted into a rent- charg-c. That statute not being in force in Penn-^ylvinia, the rents retain their original character. Ingersoll v. Sergeant, 1 Whart. 352, And thougli it has been correctly said no reversion remains, Robb. v. Beaver, 8 VV. &, S. 126, for there never could beany alter a fee simple, yet the same species of estate does remain which existed at common law before the statute. This is plainly shown by a number of cases ; thus in that last cited it was said fealty was due ; in the same way it is supposed, as is every wliere recognised between lessor and lessee for years, also a right of distress of coinmon right, Kcncgc v. Elliot, 9 W. 262, which are incidents only in case of tenure ; to constitute which, such an estate as has been mentioned must exist. So also covenant for payment of the rent will lie by the assignee of the grantor ; Strcaper v, Fisher, 1 Rav/. 1.55 ; Miles v. St. Mary's Church, 1 Whart. 223, not for the reason given in the former case, but by reason of the rigiit or estate accompanying the grant; this point is fully considered in a not(! to Spencer's case, Smith's Leading" Cases, 1 vol. 97, Am. ed. The existence of t!iis rent moreover, depends on the continuance of the estate of the grantor, being a con'-idcraiion therefore. Franeiscus V. Reio-art,, 4 W. 1 1 6. And an eviction without default of the grantor, as by the authority of the State for public use, creates an apportionmcnl ; Cuthbert v. Kuhn, ante. So by a sale of the land, after a levy on the rent, it passes ; Streapcr v. Fisher, ante, (4 Cutlibert v. Knlin, 3 Wb.t. 365. And the rule was thus in New York, People v. Haekms, 7 Wend, 4G3, 9, until the remedy w:.s extended by statute, 3 Kent's Com, 461. »2 Eng. Com, Law Reps, 57, 1^23 Id, 215. 130 CR abb's law of real property. if a man makes a foeffment in fee by deed-poll reserving rent, and provides; that if the rent be behind, it shall be lawful for him to distrain, this will be a rent-charge, the words amounting to a grant from the feoffee ;(c) for a reservation in a deed-poll is good, because whoever claims any estate under a deed mustlake it on the terms expressed in the grant ;(cZ) so, if a man seised of lands in fee bind his goods and lands to the payment of a yearly *sum to A., this is a good rent-charge with power to distrain, L J although there be no expresss words of charge, nor to distrain. (c) So a rent granted by parol by one co-parcener to another for equality of partition was good as a rent-charge, and she might distrain for the same, because co-parceners are in by descent, and are compellable to make partition, and therefore such a rent, though made without deed, would before the 7 & 8 V. c. 76 (/) not have been construed a rent-seek, so as to deprive the party of her remedy by distress ;(/) and for the same reason where a rent was sfranted to a widow without deed out of the land whereof she was dowable, she might, nevertheless distrain for the same.(o-) A rent- charge may now be created either by grant or by the Statute of Uses, and the statute has been construed to extend to all rents that might hereafter be granted to the use of any one. (A) 153. A rent-seek was properly a rent reserved by deed without any clause of distress, and it was so called because it was prima facie bar- ren or unprofitable to the grantee, as, until seisin had, he had no remedy for it ;(j) but this distinction is now done away by the 4 Geo. 2, c. 238, which gives the same remedy for rent-seek as for other rents. (1) 154. To the above may be added some particular kinds of rents, as fee- farm rents, rack-rent, rents of assize or chief rents, quit-rents, and viscontiel rents. A fee-farm rent is a rent-charge [or it is said that it might be a rent- seek(A;)] issuing out of an estate in fee, which it is said must be of at least ^ -, one-fourth of the value of the land.(/) After the Statute *of Quia L -J Emptores, granting in fee-farm, except by the king, became imprac- ticable, but it is possible to reserve a rent in fee which may be good as a rent-charge, (m) A rack-rent is only a rent of the full value of the tenement, or near- ly so.(>i) Rents of assize are the established rents of the freeholders and copyholders of a manor ; they are termed chief-rents when payable by the freeholders, and quit-rents when payable by either freeholders or copyholders, so called (c) Plowd. 134, ('/) 1 Inst. 143, b. ; 2 Roll. Abr. 449. {c) 1 Inst. 147, a. (/") See Prec. Conv., Append. No. xviii. Ig) 1 Inst. 169, a. {It) Bacon on Uses, 43; Rivett v. Godson, W.Jo. 179. (?) Litt., s. 218 ; 1 Inst. 153. {k) 2 Dong. G05. (Z) Bract. 86 ; Britt. 164, b. ; F. N. B. 86 ; 1 Inst. 144, a. ; and see also Harg. Co. Litt, 144, a., n. (5\ (//?) Harg. Co. Litt., sup. See also Bradbury v. Wright, 2 Dougl. 602. («; 2 Comm. 42. (1) The want of a reversion remaining was recognised as destroying the right of dis- tress in Ege v. Ego, 5 W. 138 ; and in Dichtenthalcr v. Thompson, 13 S. & R. 157, the ces- sation of the title as landlord produced the same effect; and though fealty or other feudal incidents may be taken away, yet the right of distress remains as before. Cornell v. Lamb, 2 Cow. 657. The right of distress is extended to these rents in N. Y. by statute. Rev. Stat. T. 747 ^ 18-22. 3 Kent's Cora. 461. CREATION AND RESERVATION OF RENT. 131 because the tenant thereby gets quit and free of all other services.(o) Pay- ment of a rent to the lord of a manor for a series of years is evidence only a title to the rent, but not to the land in respect of which the rent is paid ;(;:)) the presumption, however is, that such a rent is a quit-rent. (/)) Viscontiel rents are such as were formerly received by the'^heriff before the 3 & 4 Wm. 4, c. 99, which relieves him from accounting for such rents. (See Dig. P. i. tit. Accounts.) All these rents are continued, with other manorial rights, by the 12 C. 2, c. 24, s. 5, which abolishes military tenures. 155. There is also another kind of rent which is sometimes called fore- hand rent, or foregift, but more usually a fine, which is a premium given by the tenant at the time of taking the lease, as on the renewal of leases by ecclesiastical corporations, which is considered in the nature of an improved Sometimes a covenant is inserted in leases, that the lessee shall forfeit a certain sum on non-payment of rent, or on doing certain things, as ploughing up ancient meadow *and the like. This is called a nomine poense, ^^ytI'] or a penal rent, and being incident to the rent is said to descend to L the heir.(r) II. Crrattou antr Sicstr^atioii ti Mciit. 1. By lohat words and in what manner Rent may be reserved. ^157 Mode of reserving 3 Rent-scrvlcc. §158. Several Rents reserved in the same Deed. 159. Reservation of a Rent-charge. 2. To whom the Reservation may he made. 160. To the FeofFor, &c. 161. To the Lessor himself. 162. General Reservation. 1 63. Particular reservations. 165. Between Joint-Tenants. To Husband and Wife. 3. Upon what Conveyances Rent may be reserved. 166. Oil Conveyances generally. Not where no Estate passes. Where an Estate is confirmed. 167. Oil a Bargain and Sale. 168. Distinction between a Lease and a Foeffment. 169. Rent not to be reserved, when. Conveyance that enures by way of Extinguishment. Feoffment. Agreement for a Lease. Fines. 4. Upon w'hat things Rent may be reserved, or out ofivhat it may issue. 170. General Rule. Rent may issue out of corporeal Things. 171. But not out of incorporeal Heredita- ments. Commons. . (0) 1 lust. 144, a, ; Gilb. on Rents, 33. (p) Doc v. Johnson, Gow, 173 {q) S.-j Irish Society v. Nccdham, 1 T. R. 496; Wynne v. Biniptoa, 3 Atk. 473; Southall v. Leidbetter, 3T. R. 461,462. ^, ^ or . (,-) Inst. 162. Bat see Tiiina v. Chomley, Cro. El. 333; Egcrton v. Slieafc, 2 Lutw. 1151. 132 crabb's law of real property. 172. Tithes. Not to issue out of a Hundred. Not out of Rent, Not out of a Terra for Years. 173. Exceptions. 174. The Crown. 5. Reservations upon Leases made under Powers. 175. Amount of Rent. 176. Mode of Reservation. 177. Rent must be certain. 177. Time of Payment. Entire or distinct. Reservations. §156. Under this head may be considered — 1. By what words and in P*i»qT what manner a rent maybe created or reserved ; *2. To whom the L J reservation may be made; 3. Upon what conveyances rent may be made ; 4. Upon what thincrs reservation may be made, or out of what rent may issue ; 5. Reservations in leases made under powers. 1. By what Words and in what Manner a Rent may he created or reserved. 157. The creation or reservation of rent may be considered as respects a rent-service or a rent-char"-e. A rent-service, being something in retribution for the land demised, must be reserved by such words as imply a return of something which was not in the grantor before, in lieu of the land given, and therefore is properly reserved by the words reservando, reddendo, &c. ;'s) so, the words in a demise "provided the lessee shall pay" are a good reservation ;(/) so, if lands be leased to A., and he covenant and grant to render and pay for the said lands every year during the said term £10, this amounts to a reserva- tion ;(?<) so if a man, in consideration of rent after mentioned, lets, and the lessee covenants to pay so much rent, without any reddendum, it will be a good reservation. (a:) (1) But if a lease be made " excepting" so much rent, this will not be a good reservation, because this word implies a reservation to the lessor of some- thing then in his possession, and which would otherwise pass by the lease •,(y) so, if a man makes a lease " saving" 20.5. rent, this is not a good reservation, because there can be no saving of anything not in being. (;2) 158. Where several rents are reserved in the same deed there is this dif- r*l74~l f6''C"C' ^^^^ where the rent is reserved *enlire in the reddendum, <- -' there though the rent be after apportioned to the several parcels (s) Plowd. 143 ; 1 Inst. 17, a. ; Glib, on Rents 30. (<) Harrington v. Wise, Cro. El. 486; S. C, i\Ioor, 459. (w) Plowd. 31 ; Hob. 3.-) ; Drake v. Mnndav, Cro. Car. 207 ; S. C, W. Jo. 931. See also Moor, 861 ; Noy, 14; Palm. CO; Cro. Jac. 34, 42, &c. ; Roll. Rep. 80; 2 Bulst. 281. (z) Moor, 45 J ; 2 Roll. Abr. 4 i), 1. 3.5, 40. (y) Petk., s. 633. (z) 2 Roll. Abr. 449. (1) Mem. That A. hath let to B. and his heirs at the rate of §1.5 per acre to be pnid by B. and his heirs, creates a rent-service. Krider v. Lalferty, 1 Whart. 304. Wjiatcvcr words are sufficient to explain the intent of the parties that one should divest him.«clf of the property and the other come into it f )r a determinate period, whether they run in the form of a lieens", covenai\t or aT-reemcnt, will in construction of liw amount to a lease, as if tlie most proi>er words had been used. Watsoa v. O'Hern, 6 W. 363. I CREATION AND RESERVATION OF RENT. 133 leased, yet the reservation shall be taken as one and entire, but it is other- wise where the rent is not reserved entire, for then the rent is several and apportioned to the several things demised ;(«) and as there may be several reservations in the same lease by the words of the parlies, so there may be by act of law, as where a lease for life is made to a bishop in his public capacity, and to J. S., reserving a rent; the lessees in that case are not joint-tenants, but tenants in common, and therefore the reservation of the rent must be several too, and the reversion to which the rent is incident must follow the nature of the particular estates on which it depends ;(i?') 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 it has been held, that they should be put to their several assizes, if they had been dis- seised, as if there had been distinct reservations. (c) 159. The usual and proper way of creating a rent-charge is, in the words of Littleton, " When a man seised of lands grants, by deed-poll or indenture, a yearly rent issuing out of the same land, to another in fee, in tail or for life, with a clause of distress, this is a rent-charge ;"(^/) and even since the Statute of Quia Empfores, if a man make a feolTment in fee, reserving rent, and if the rent be behind, that it shall be lawful for him to distrain, it is a rent-charge ; and so the law creates a rent-charge in many other cases where there are no words of granting, it being the design of the law to ren- der contracts binding, so far as the intention of the parties may be collected from the deed ;(c)(l) *therefore, if a man bind himself to J. S. in an ,-^-,^n~\ annual rent, to be yearly issuing out of such a manor, and subject the L -^ said manor and all the chattels therein to a distress, this amounts to a good grant of the rent, and J. S. may distrain for it ;(/) but if a man grant a rent of 40s. out of the manor of D., and if the rent be behind that the grantee shall distrain in the manor of S., this power of distress out of the manor will not amount to the grant of a rent-charge out of such manor, for here is a plain grant of rent out of the manor D., and the distress is given in S. only as a means for the recovery of it.(^^) But if a rent be granted to A., and ihat if the rent be behind a stranger shall distrain for it for the use of the grantee, this is a good grant of a rent- charge to A., the power of distress being given to the stranger for his bene- fit ;(/t) so, if A. leases a manor for life, rendering rent, and afterwards grants this rent in fee to another, to have after the death of tenant for life, with power to dislrain for it, this is a good grant of a rent charge in fee ;(/<) so, if A. grant to B. a rent of £5, to be taken out of his lands, which rent A. has of the grant of his father, though A. had never such rent from the grant of his father, yet this grant of A.'s shall be good to create a rent-charoe in B., and a mistake in the description of the thing referred to shall not render the contract ineffectual, (i) ^ a) Dy. 309; Hob. 172; Monr, 51, 190; 1 AndcrK. 173; 3 Leon. 124, (//) Moor, 2;)2. (c) 1 Inst. 207, a. (il) Litt., s. 218. (f) PImvd. 134 ; 1 Inst. 170, a. ( f) Roll. Abr. 424. (e-) Butt's case, 7 Co. 24 ; 1 Inst. 147, a. ; 2 Roll. Abr. 425, (h) 2 Roll, Abr. 425, (•) B.-o. tit. Grant, 6:1, 73 ; 2 Roll. Abr. 425, (1) Can only be created in Pennsylvania by a grant of an annual sum of land with a clause of distress. Cuthbert v. Kuhn, 3 Whart. 357. 134 crabb's law of real property. Again, if a man seised of twenty acres of land grant a rent of 20s. to be issu- ing oiu of a certain acre of liis land, or out of every acre of his land, this is in the nature of a several grant out of every acre, for the grant shall be taken most strongly against the grantor, and the grantee shall have 20s. out of each acre;(ji") and so, if there be two tenants in common, and they grant a rent of 20s. per annum out of their land, the grantee shall have 40s. rent ; for ^!l|,■^~f,-^ *as their estate is several, so shall their grant be too, and therefore L -^ each shall be taken to grant a several rent of 2Qs.{k) 2. To whom the reservation may be made, 160. As a rule, no rent (which is properly said to be rent) may be reserved to any but the feoffor, donor, lessor, or his heirs, and in no manner may it be reserved to a stranger,(/) (1) for it ought to be made to him from whom the land passes ;(/) therefore, if a father seised in fee leases rendering rent to his son, it is void, for the son takes as a purchaser, and is quasi a stranger ; it should therefore be to the heir of the lessor ;(m) but if a man makes a lease to commence after his death, reserving rent to his heirs, this will be deemed a good rent-service arising in the heir, not by way of pur- chase, but as incident to the reversion descending to the heir, and therefore may be released by the ancestor during his life, which it could not be, if it was a new purchase in the heir.(n) So, a man may reserve a rent to him- self for life and a different rent to his heir,(o) or he may reserve rent to his heir omitting himself.(o) The Q,ueea is an exception to this rule, for she may make reservation of rent to a stranger ;(/}) therefore, where the King made a lease of a house belono-in^ to his housekeeper of Whitehall, reservino- a rent to the house- keeper for the time being, though in this case it was admitted that the King might reserve rent to a stranger, yet, it being here made to an officer who was removable at will, the reservation was held ill.((7) 161. As a lessor can reserve rent to no other than to himself, if two joint ps^.,^^-. tenants made a lease by parol or deed-poll, *rescrving rent to one of L -^ them, this should enure to them both; but if so reserved by deed indented, it should enure to him alone by way of conclusion ;(r) and the reason for the difference is this, that when the lease is by deed-poll, the rent shall follow the reversion, which is jointly in both lessors; but where the lease is by indenture, the parties are estopped to claim the rent in any other manner than as it 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.(s) 162. A reservation may be either general or particular. Where a reservation of the rent is general, the law directs that it shall be (/) 1 Inst. 147. (k) Plovvd. 140, IGl ; Justice Wyndham's case, 5 Co. 7 b.; 1 Inst. 1D7, a, 5G7, b. (J.) 1 Inst. 143, b; Gilb. on Rents, 45. (m) Cites V. Frith, Hob. 133; 1 Inst. 47, a, 143, b; Saclirverell v. Fro^rorat, 2 Sauad. 370. In-) 2 Roll. Abr. 4 17 ; and see 2 Saund. 370. (o) 1 Inst. 213. ip) 1 Inst. 143; 2 Roll. Abr. 4 17. (n) Anon., 1 I,d. Ravm. 36. (/") Jcnison v. Lexington, 1 P. Wms. 555. is) 8 Co. 71. (A) 1 Inst. 211, a, (/) Blaad V. Inman, Cro. Car. 288 ; S. C, W. Jo. 308 ; .3 Roll. Abr. 450. ij) Ld. Rockingham v. Penricc, 1 P. Wins. 177 ; S. C, 2 Salk. 578 ; recognising Clun'a case, 10 Co. 127. (A) 10 E. 4, 3; 21 H. 6, 8; 1 Inst. 144, a.; 2 Roll. Abr. 4 tO ; Gilb. on Rents, 26. (Z) lb. {m) Litt., s. 438 ; Dy. 33U ; Moor, 631. (1) Williamson v. Richardson, 6 Monr. 605. (2) Nor will it be creited by an agreement to convey for a price to be paid in money or by rents to be reserved on conveyances of parcels of Uie land, even though the articles stipulate that the grantor until suc'i settlement shall have all tiic remedies as arc u-ual in ground-rent deeds ; for to con?titute such a rent, there must be a conveyance of the land, until that, it remains purchase-money. Moroney v. Copeland, 5 Whart. 407. CREATION AND RESERVATION OF RENT. 137 tut if there be tenant for life, and he in'the reversion release to him in tail, reserving rent, the reservation is good, because the tenant's estate is enlarged by the release ;(n) so, if the lord of a manor by indenture at common law releases to his copyholder in fee, to him and his heirs, or confirms such lands to his cof)yholder and his heirs, reserving a rent, this reservation is good, because the release or confirmation enures by way n{ initfer le csfafe to pass an estate at common law to him, when before he had but a copyhold estate ;(o) and so, in other cases upon releases which enure by way of miller le estate, as by one joint tenant to another, a rent may be reserved ;(^) but upon a release or confirmation which enures by way of mitter le droit only no rent can be reserved, because such release operates by way of extinguishment. (;;) 167. At common law no rent could have been reserved upon a bargain and sale, because only a use passed, which was not any estate to which the bargainor could have had recourse for a distress, but now by the Statute of Uses, the use and possession passing together, it amounts to a grant of the land itself,((7) and the reservation, as if out of the estate executed by the statute, will not be deemed a use ui)on a use;(r) so, on the same principle, it has been held that ''a rent may be reserved upon a covenant to ^5^,01-1 stand seised, as where, in consideration of natural love, a man cove- L -' nanted to stand seised of certain lands to the use of himself for life, with remainder over, and to the intent that his son should have a rent during his father's life, it was held, that the son had a good rent upon such a cove- nant as upon a feoffment. (s) As to limiting a rent to uses, see ante, § 159. 168. It seems that the effect of reserving rent upon a lease or a gift in tail and upon a feoffment is not in all cases the same. If a man seised of land on the part of his mother makes a lease or a gift in tail, reserving rent to him and his heirs, this rent shall go wiih the reversion to the heirs on the part of the mother, because the nature of the contract is such that the retri- bution should go to those who lose the profit of the land during the gift or lease ;(/) but if in like case he had made a feoffment in fee, reserving rent to him and his heirs, the rent in thai case would go to the heir on the part of the father, because here is an entire disposition, and the rent is in the nature of a new purchase, coming into the family from the grant of the feoffee, and therefore the blood of the father shall be preferred. (/j(l) 169. There can be no rent reserved upon any conveyance that enures by (n) 10 E. 4, 3 ; 1 Inst. 193 ; Gilb. on Rents, 27. (0) Samme's cnse. 13 Co. 5.5. ( p) 1 Inst. 193. (7) Weeks v. Tillarci,Cro. El. 595 ; 1 Inst. 144, a. See also Piittcnham's case, 1 And. 18. (rj Cromwel's case, 2 Co. 72 b. See also Dy. 362 ; Choniley's case, 2 Co. 54 ; 2 Inst. 273 ; Vaugh. 52 ; Gilb. on Uses, Suyd. cd., 8ti, n. (3.) (s) Revitt V. Godson, W. Jo. 179. (/) 1 Inst. 12. (1) And such a conveyance is a revocation of a will, and the rent reserved does not pass thereby, Skerrett v. Eurd, 1 Wiiait. 2-J6; and it is such an entire alienation of the land that on conveyance o. wie's lands, rcsirving a lent to husband and wife and their heirs, the rent vests iu the husband, surviving the wile, in fee. Eobb v. Beaver, 8 W. vt S. 107. 138 crabb's law of real property. way of extingll^shment,(^<) because in such case there is no reversion left in him to create a tenure ; therefore if a lessee surrendered his estate, reserving rent, this reservation was held not to be good ;(.r) but such a reservation may- be good by way of contract, and an action of debt may be brought upon it-(.V)(l) So, where a rent is reserved upon a feoffment, and the feoffor has no re- -, version, yet this is a rent, and is *recoverable by the name of rent L -^ upon the contract. (?) And so, where an assignee has assigned over a term, rent may in that case be recoverable against the second assignee. (z) So, an agreement for a lease at a rent certain is not a sufficient reserva- tion of rent, so as to constitute a demise, and therefore if a party be let into possession under such an agreement, he cannot distrain, although he may have an action of debt,(fT) see further, 1 Prec. in Conv. tit. Agreements. (2) So, a rent could not be reserved on a fine sur cognisance de droit come ceo or any other fine which was executed ; scd necus where an estate for life only was conveyed by the fine. (6) 4. Upon what Things Rent may he reserved, or out of what it may issue. 170. It is laid down as a rule, that a rent cannot issue out of anj'^ inherit- ance but such as is said to be manurabic, wherein an entry may be made and distress taken, as lands and tenements ; therefore a lease for the verdure or herbage of the land, reserving rent, is good, for the lessor may enter upon the land to distrain ;(c) but the grant of a rent-charge out of land, of which the grantor is not seised at the time of the grant, is void, although the gran- tor should afterwards purchase the' same lands. (c/) 171. As a consequence of this rule no rent can be reserved upon any incorporeal hereditament or thing lying in grant, because to such things re- course cannot be had for a distress ;(e) therefore no rent can properly be reserved for a common, as the common belongs to many, and it cannot be r*i«*?1 ^'^ble to distress by the act of one ;(/) yet by the *1 1 G. 2, c. 19, ^ -^ s. 8, (see Dig. P. iii. tit. Landlord and Tenant,) it is provided that a landlord or his steward may seize as a distress for rent cattle of his tenant feeding upon a common. 172. Upon the same principle there cannot at common law be a rent re- (m) Samtne's case, sup. (x) 2 Roll. Abr. 491. (y) Winston v. Pinkney, 2 Lev. 80; S. C, 1 Vent. 242; 2 Danv. 501 ; rccogrnised in Brownlow v. Hewley, 1 Ld. Raym. 82. See also Cro. Jac. 487 ; Allen, 57 ; 4 Mod. 174; Gilb. on Rents, 29. («) Ncwcomb v. Harvey, Carth. 162. (a) Hegan v. Johnson, 2 Taunt. 148 ; Dunk v. Hunter, 5 B. &, A. .322.' (/>) Bro. Abr. tit. Fines, p. 30 ; Roll. Abr. tit. Fine, O., p. 10. (c) 1 Inst. 47, a. ((/) Perk., sect. 65. (e) 1 Inst. 142, a. (/) Sanderson v. Harrison, Cro. Jac. 679. (1) Ege V. Ege, 5 W. 138. (2) See Watson v. O'Hcrn, 6 W. 368, ante, 173, n. 1. The distinction between an agreement lor a future lease and a lease in possession, is recognized in Hnllct v. Wyley, 3 Johns. 44. Thornton v. Payne, 5 Johns. 74. Buell v, C'oole, 4 Conn. 238. »Eng. C. L. Reps. vii. 115. CREATION AND RESERVATION OF RENT. 139 served upon tithes, because there is no place upon which a distress may be taken ;(£;•) but an action of debt is given by the 5 G. 3, c. 17, to ecclesias- tical persons for arrears of rent upon leases of tithes, &c. ; so, where a rent- charge of £20 was devised out of a rectory, the glebe whereof amounted to 40s. per annum only, the whole rectory was in equity held liable to the rent ;(A) so, where a lease was made of land and tithes, the rent was held to issue out of the land and not out of the tithes. (j) So, neither can a rent issue out of a hundred, fair, office, and the like, for these were instituted for public purposes ;(A-) so, likewise not out of rent ;(/) but a rent reserved on a lease made of an incorporeal thing, as of a fair, is good by Avay of contract between lessor and lessee. (m) So, a rent must be reserved out of an estate that passes by a conveyance, and not out of a right ; and therefore if disseisse release to the disseissor of land, reserving a rent, the reservation is void.(n) So, a rent cannot issue out of a term for years, therefore the lessee having assigned cannot distrain, (o)(l) but he must bring his action on the con- tract ;(o) so, if a lease be made of an incorporeal hereditament, reserving rent, such reservation is good to bind the lessee by way of contract for the non-performance of which the lessor shall have his action of debl;(;;) but *although a rent cannot issue out of chattels, yet it has been held, p4;.iQi-| that distress may be made for the rent of furnished lodgings, for the L J rent issues out of the realty and not out of the goods. (g')(2) 173. Although reversions and remainders are incorporeal hereditaments, and can pass only by grant, yet a rent may be reserved upon a lease of them, because although the grantor has no remedy for them during the continuance of the particular estate, yet there will be a remedy by distress w^hen they come into possession ;(r) so, and for the same reason, it is, if the lord grants his seignory, reserving rent, for here is a prospect, though distant, of a re- medy by distress upon the escheat of the tenancy ;(s) so, on the same prin- ciple, if a man grants a future interest in land, he may reserve a rent imme- diately, for he may have his remedy by distress when the lessee comes into possession. (^) 174. The Crown is also in general excepted from the rule above men- tioned, and the queen may reserve ronton incorporeal hereditaments, because {g) Valentine v. Donton, Cro. Jac. 111. {It) Thorndike v. Allinton, Chan. Ca. 79 ; Gilb. on Rents, 22. (») 2 Roll. Abr. 451. (k) Bro. Abr. tit. Rent, 11 ; Butt's case, 7 Co. 23 b. (/) Bro. Abr. tit. Assize, pi. 2 ; Keilvv. 161 ; 2 Roll. Abr. 446, pi. 7. (m) Jewell's case, 5 Co. 3. («) 50 E. 3, 9 ; 10 E. 4, 3 b ; cited 1 Inst. 144, a, (o) V. Cooper, 2 Wils. 375. See also Smith v. Mapleback, 1 T. R. 446. (p) Dean of Windsor v. Glover, 2 Saund. 302. (7) Newman v. Anderton, 2 N. R. 226. (r) Capel's case, 1 Co. 62 b ; 1 Inst. 47, a; Gilb. on Rents, 24. (s) 2 Roll. Abr. 446. Sec also Ferk. 627 ; Cro. El. 546. (0 Plowd. 423; Falstaff's case, 2 Roll. Rep. 467. (1) Ege V. Ego, 5 Wend. 134. (2) And when the demise is of land with a slave, it will be apportionable for defect of title to the latter. Newton v. Wilson, 3 H, &- Mun. 470. Mickie v. W^ood, 5 Rand. 574. 140 crabb's law of real property. she may distrain in all the lands of her lessee for the rent ;(m) but if the queen's tenant makes a lease of lands not holden of her, either for years or at will, she cannot distrain such lands in the hands of an under-lessee ;(a;) so, if lands are extended on an elegit, or are under sequestration, they are exempt from distress ; but in this last case, upon application to a court of equity, liberty will be given to distrain without incurring a contempt of court.(aj) (^*185] *5. Reservation upon Leases made under Powers. 175. (Questions relating to this subject have arisen either on the amount of rent or the mode of reservation. Sometimes a power is given of leasing on lives and upon the payment of fines, as the lives drop, which are con- sidered among the annual profits ;(?/) but the more usual provision, in settle- ments, is to require the best, rent lo be reserved, without taking any fine or foregift ; and whether the best rent has been reserved is commonlv left to the decision of the jurj':(z) and althourrh the best rent reserved be the full value, yet if satisfactory evidence can be produced to a jury, that a tenant was willing to give additional rent in lieu of money, agreed to be laid out in improvements, it has been held that the lease could noi be supported, (or) when, from the quantity and nature of the properly demised, it is not pos- sible to ascertain whether the rent reserved is the best rent, the lease will be deemed invalid. (6) 176. If a fine be taken contrary to the terms of the power, the lease can- not be supported ;(f) and any thing in the form of a premium has been held to come within the prohibitory clause. ((A Formerly a rent under leasing powers was reserved by the words "the ancient or usual rent," and the better opinion is, that by these words is to be understood the rent reserved at the time of the creation of the power, r*l 8P1 ^^'^^^'^ ^ lease was then in being, or reserved in the lease ^immediately L -' preceding that time,(e) and where gold has been usually reserved, silver cannot be made payable in lieu of it \[g') so, if commonly paid at four days, a reservation at one or two days is bad,(//) but a mere difference of words is not material, and therefore a reservation of eight bushels of wheat, in lieu of a quarter of wheat is good, because it is all one in quantity, value and nature. (//) (M) 1 Inst. 47, a ; 5 Co. .'5, 56 ; Lane, 3D ; Gilb. on Rents, 22. {x) Attorney-General v. Covenlry (Mayor), 1 P. Wins. 306. (y) 1 Burr. 121. (j) Doe V. Lloyd, 3 Esp. 78; Roc v. York (Archb.) 6 East, 84; Sugd. Pow. 413, 6tli ed. (fl) VVriglit V. Smith, 5 Esp. 203, See also Campbell v. Leach, Arabl. 740; Doe v. Bet tison, 12 East, 30.5 ; Shannon v. Brad^trect, 1 Sch. & Lef. 52. (/;) Cardigan (Earl) v. Montague, Sugd. Pow. App. N. 14 (2). (c) Cox V. Day, 13 East, 122; O'Brien v. Gricrson, 2 Ball. & Beat. 323. See also Campbell v. Leach, Doc v. Bcttison and Shannon v. Bradslreet, sup. {il) Doe V. Rogers, 5 B. &, Ad. 765 ;• S. C, 2 Nev. &. Man. 550. {p) Morrice v. Aiitrobus, Hard. 325 ; Orby v. Mohun, 3 Chan. Rep. 56 et seq. : S. C, 2 Vern. 531 ; Prec. C.'ian. 257 ; 2 Freem. 2i) ;" Right v. Thomas, 3 Burr. 1441 ; S. C, 1 Bl. 446 ; Doc v. Creed, 4 M. & S. 371. {g) Mouutjoy's case, 5 Co. 4 b. {h) Id. 5 b. >Eng. Com. Law Reps, xxvii. 175. WHAT ESTATES MAY BE HAD IN A RENT. 141 177. Regularl}'- the rent to be paid should be specified in the lease, but if there be words in the reservation by which the rent can be ascertained, it will be sufficient ;(/) but when the reservation is vague and indefinite the lease will be void. (A") Where the rent is required to be reserved at particular days, the reserva- tion must be accordingly, but where merely the best yearly rent is required, it may be made payable quarterly or otherwise, (/) but the rent cannot be reserved either after or before the day appointed. (?n) Where one entire gross sum is reserved on the demise of lands, part of which are not within the power, the demise is void ;(n) as where opened and unopened mines were demised by one deed, containing a general reser- vation, and the power did not authorise a demise of unopened mines, it was held that the whole was void(o) unless where the rent is reserved according to the quantity or prod ace ,(o) or there is a distinct reservation of a particular sum in respect of the lands comprised in the power. (/)) *A reservation to the tenant for life exercising the power, '< his ^^.q^, heirs and assigns," is a good reservation, for those words mean of L J necessity the person to whom the inheritance shall go,(y) see further, ante, §§ 160—165. HI. S^ftat Jdlutattu mmj i)e fiatr in a Htnt § 178. Fee-Simple. § 18.'5. Rent in Remainder. 179. Fee-Tail. 186. Seisin of Rent. 180. For Life. Seisin in Law. Occupancy. 187. Under tlie Statute of Uses 181. Rent executed to Uses. Seisin of a Rcnt-Cliarge. 182. Curtesy in a Rent. 188. No Disseisin of a Rent. 183. Dower in a Rent. 189. Transfer of a Rent. 184. Rent to commence in Future. 178. Rent is susceptible of the same limitations as land, and may there- fore be granted in fee, in tail or for life.(r) When a rent was granted in fee, with a clause of distress, and a fine was levied to the intent, that if the rent were behind, the grantee might enter, it was held that this created a contingent and future interest, which was a matter of inheritance, and being a security for the payment of the rent, might well be transferred therewith, for by the grant of the rent the penalty and the advantage passed. (s)(l) (i) Lewison v. Pigfot, cited 3 Chan. Rep. 6 ; and see Audley v. Audley, 2 Chan. Rep. 82 ; Shannon v. Bradstrcet, sup. {k) Orby v. Mohun, sup. (I) Dean and Chapter of Worcester's case, 6 Co. 37 b ; Campbell v. Leach, Ambl. 740. (m) Ludlow V. Beckwith, All. 90 ; Doe v. Gifford, 5 B. & A. 371 ; Sugd. Fow. 427, 6th ed. (n) Doe v. Lloyd, 3 Esp. 78. (o) Campbell v. Leach, sup. (p) Knight's case, 5 Co. 54 b. See also How v. Whitfield, 1 Vent. 339, S. C, 2 Show. 67; Cardigan (Earl) v. Montague, ^up. ; Orby v. Mohun, sup.; Doc v. Meylcr, 2 M. & S. 276 ; Doc v. Rendlc, 3 M. .V S. 99. iq) Whitloek's case, 8 Co. 69 b ; Hotlcy v. Scot, Lofft, 316. (r) Butt's case, 7 Co. 23, (s) Havergill v. Hare, Cro. Jac. 510. (1) Farley v. Craig, 6 Halst. 262. Pet. 596. July, 1846.— 10 People V. Haskins, 7 Wend. 463. Scott v. Lunt, 7 142 crabb's law of real property. 179. There may be a limitation in tail of a rent, as of land, but with this difference, that the tenant in tail of lands, with the immediate reversion ia fee in the donor, might by a common recovery have barred the entail and the reversion (as he may now under the 3 & 4 W. c. 74, see Dig. p. ii. tit. Fines and Recoveries,) but the grantee in tail of a rent de novo, without a r*issl subsequent limitation *of it in fee, acquired by a common recovery a L J base fee only.(/) 180. So a rent may be granted to one for his own life or the life of an- other ;(«<) but if granted to A. for the life of another, remainder to B., although A. dies, yet the remainder is good.(t<) But a rent for Hfe granted out of a term for years is but a chattel, and shall be satisfied out of the term until one or other estate determines, (x) but when a rent is granted out of land in fee, and out of a term for years for the life of the grantee, this, as an estate of freehold, cannot issue out of the term, but out of the land which the grantor has in fee-si mple.(7/) By the common law there could be no general occupant of a rent, there- fore if a rent were granted to A., his executors and administrators during the life of B., and A. died intestate before cestui que vie, it was held, that the rent must determine, for his administrator could not claim it either as assign or occupant ;(z) sed secus where there is a special occupant ;(o) and it has been thought that executors and administrators, if named in the grant, might have taken an estate pur autre vie, though a freehold, even before the 29 C. 2, c. 3, and 14 G. 2, c. 20,(1) see Dy. 338 ; also further, Dig. p. i. tit. Estates, also post, tit. Estates. 181. Rents may be limited to uses under the Statute of Uses, being therein expressly mentioned, and that either as regards rents in esse, which may be executed in the same manner as uses of corporeal hereditaments, or rents de novo which are limited in use out of the seisin of the land, therefore when lands are conveyed to A. and his heirs, to the intent that B. or B. and his r«i8Q"l ^^'^^ "^^y receive a rent, the rent *is executed in B.;(2) but as in L -' the case of lands, the Statute transfers the legal estate in the rent to the first cestui que use, when therefore lands are conveyed to A. and his heirs to the use of B., with a declaration that B. and his heirs shall stand seised of the rent to the use of C. for life, with remainder over, it was held that the use was executed first in B. and then in C, and that the remainder- man took a trust estate only. (6) 182. There may be curtesy in a rent, and a man may be tenant by the curtesy of a rent although his wife die before the rent becomes due and she (0 Chaplin V. Chaplin, 3 P. Wins. 229 ; Wrcks v. Feach, Lutw. 1224. {II) Salter V. Butler, Cro. El. 901 ; S. C. Yolv. 9. (x) St. Auby's case, Cro. El. 183, (?/) Butt's case, 7 Co. 23. (z) Salter v. Butler, sup. (a) Plowd. 28, 556; Palm. 32. (i) Chaplin v. Chaplin, sup. (1) All tenements per auter vie pass to the executor, in Pennsylvania, under the act of 1834 s. 9, unless a special occupant be named. (2) So of a rent reserved under a power to convey in fee on ground rent. Ex parte Elliott, 5 Whart. 524. WHAT ESTATES MAY BE HAD IN A RENT. 143 has but a seisin in law, because as Lord Coke says, the husband could by no industry attain to any other seisin, and impotenlia excusat legem ;[c){l^ so, where a rent-charge was granted to a woman and her heirs, payable at two feasts in the year, the first payment to be made at such of the said feasts as should happen after the death of J, S. ; the woman married, had issue and died ; it seems to have been the incHnation of the court, that the husband should be tenant by the curtesy of the rent, for ahhough the rent was to commence in futuro yet it was granted over presently, which proved to be in esse, so that the wife might be said habere hseredUatem, and the seisin was not material in the case of a rent.((i) So it is said that if a woman make a gift in tail, reserving a rent to her and her heirs, then takes husband and has issue, and the donee dies without issue, the husband shall not be tenant by the curtesy of the rent, for that it was determined by the act of God, and no estate thereof remained ; but if a man seised in fee of a rent, makes a gift in tail general to a woman, who takes husband and has issue, the husband shall be tenant by the curtesy of the rent ; because the rent remains ;(e) so, if he be a tenant de novo granted in tail, and the wife dies without issue, the husband shall be tenant by the curtesy. (/) *183. A Avoman shall have dower of a rent, whether it be rent- r*i service, rent-charge or rent-seek, but it must be an estate in fee- L -^ simple ;(g') for if it be an annuity which charges only the person, and does not issue out of any lands or tenements, she shall not be endowed ;(5'') so, if a man under the old law of dower made a lease for life of certain lands reserving a rent to him and his heirs, and then look a wife she should not be endowed of the reversion because there was no seisin either in deed or in law, nor of the rent because the husband had but a particular estate therein ; sed secus if the husband had made a lease for years. (A) So, for the same reason if the freehold of the rent were suspended during the coverture a woman should not be endowed. (/) So, if a rent de novo were granted in tail without any remainder over, and tenant in tail took wife and died without issue, held that th^wife should not be endowed because the thing out of which the dower was to arise was not in being ; but it was otherwise where tenant in tail married and died without issue, whereby the estate tail was determined : for the wife in that case should be endowed notwithstanding, because the land was in beino', though the estate tail was determined, and the dower was in some respects a continuance of the estate tail,(A-) and see further as to dower, post, tit. Dower. So, in the same case, if a rent in esse were granted to A. in tail, remainder to B. in fee, and A. married and died without issue, it was held that the wife should be endowed ; and so, if a rent de novo was granted to A. in tail, remainder to B. in fee, and A. married and died without issue, yet his wife should be endowed. (/f) (c) 1 Inst. 29, a. {/) 1 Inst. 30, a. is) 1 Inst. 32. (i) Lillington's case, 7 Co. 38, (d) Dcthick v. Bradburne, 2 Sid. 110. 117. (/) Harg. Co. Litt. 30, a. n. (2.) (A) Fnlg-eani's case, Noy, 280. (t) Chaplin v. Chaplin, sup. (1) Jackson v. Sellick, 8 Johns. 265. 144 crabb's law of real property. So, likewise in the same case it was held that a wife was not dowable out of an equitable estate ;(/c) but it is otherwise now under the new law, see post, tit. Dower. *184. A new rent may be made to commence in fiifuro, for L J being an incorporeal hereditament, there is no suspension of any freehold as in the case of land,(/) so that the period of commencement be not too distant ;(m) it is otherwise however with rent in esse or a rent already created, for that cannot be granted to commence after the death of another, because to such a rent there may be a precedent title. («) 185. A rent-charge may be granted in remainder after a limitation of it to a person for hfe, as where granted to A. for the life of B. remainder over, it was held, that though A. should die in the life of B., so that the rent determined as to the perception of it, yet, inasmuch as the terre-tenant during that time held the land discharged of the rent, that was sufficient to support the remainder,(o) and although it has been objected that there could be no remainder of that whereof there was no reversion, yet the intent of the party gives the rent de novo, first a being for the whole, and then the lesser estates are carved out of it.(jQ) 186. A rent being an incorporeal thing, can be acquired only by actual receipt, but payment of any money in the name of seisin of rent, will give seisin, ((J') and therefore where a man grants over divers and several rents, and the tenant gives a penny in the name of seisin of all rents, it is a good seisin 'Jr) and payment of parcel of rent beforehand is an actual seisin of the rent to give a real action ;(s) and so it is if a man give an ox or a horse, or other valuable thing in the name of rent.(s) -. 187. In some cases however there may be a seisin in law *of L ^ rent, as for instance to entitle a man to curtesy. (See ante, § 182.) So, there is a distinction between a rent at common law, and where it is limited under the Statute of Uses, as where land is conve3'^ed to A. and his heirs to the use of B. that he may receive thereout an annual rent, there the use of the rent is immediately executed by the statute in B.(/) As to a rent-charge the grant and delivery of the deed is no seisin of the rent, for the seisin in law, which the grantee has by the grant, is not suffi- cient to maintain an action. (^<) 188. Where a person has been once seised of a rent, he cannot afterwards be disseised of it except at his own election \{x^ for if A. is seised of a rent- charge, and the tenant of the land pays the rent to another, this will not (J<) Chaplin v. Chaplin, sup. {D Plowd. 1.56 ; Palm. 99, 30 ; 2 Vent. 204. (fn) Gill), on Rents, 60; and see Turner v. Turner, 1 B. C'. C. 316. (n) Plowd. 156. (0) Salter v. Butler, Yelv. 9. (p) Weeks V. Peach, 2 Palk. 277. (7) 1 Inst. 1.59, b. ; 160,- a. (r) 22 Ass. 66; Bevill's ease, 4 Co. 8, 9, (s) 1 Inst. 315, a. [t) Chaplin V. Chaplin, 3 P. Wnis. 229. {v) 1 Inst. 160, a. (*) Litt. ss. 237. 240. PAYMENT OF RENT. 145 divest A. of his right ; and the pa3rment of the tenant being in his own wrong, the rent still remains in arrear to A.(i/)(1) 189. A rent in esse may be granted or assigned even before the grantor has seisin of it,(z) but_not during its suspension ;(cf) and a rent-charge might be conveyed by fine ana recovery, (i) now by the substituted assurance under the 3 & 4 W. 4, c. 74, see Dig. P. i. ii. tit. Fines and Recoveries. So, it might before the 4 & 5 Vict. c. 21, have been conveyed by lease and release, and now by release only ; so also by bargain and sale, and covenant to stand seized ;(c) as well as by grant at common law. *iv. jjngmeut of IXtnu 1. Days of Payment of Rent. [n93] § 191. By Appointment of the Parties. Or of the Law. 192. General Reservation. § 193. Days of payment, how limited. Particular days of payment. Payment in advance. Old and New Lady Day, &,c 194. Part of the day. The Day itself. 195. On the Land. 2. When Rent is due. I 194. How Parties are affected by the law. 3. Where Rent is payable. I 195. In the Exchequer. 4. How Rent is payable. 196. Payment before it is due. | 19G. Arrears of Rent a Specialty Debt. 196. Set-off against Rent. 5. To ivhom Rent is payable. 197. Real or Personal Representatives. 198. As between Landlord and Tenant. In case of Bankruptcy. 199. Execution against Tenant. , 200. Landlord's Claim under what Exe- cutions. 201. As between Morgagfor and Mort- gagee. 6. Liability to pay Rent. 202. Liability under Covenant. 20.3. Relief in Equity. 204. In case of Eviction. From Part of the Land. Eviction in case of Tenancy from Year to Year. 205. Liability of Tenant in case of Assign- ment. 206. Where there is no beneficial Enjoy. ment. 207. Liability of Personal Represcnta- lives. (jy) Litt. sect. 558, 559 ; sec also 10 Co. 97 ; Hawk. P. C. c. 64, s. 45 ; 3 Cr. Dig. 295. {z) Perk. sect. 91 ; Shep. Touchst. 238. ('/) Shop. Touchst. sup. (6) Pig. 97. {(1) Lade v. Baker, 2 Ventr. 260. (I) And lapse of time, daring which, it is not paid, produces no effect upon it, where there is a deed to show its origin. St. Mary's Church v. Miles, 1 Whart. 229. 146 crabb's law of real property. § 190. Under this head may be considered — 1. Days of payment of rent; 2. When rent is due; 3. Where rent is payable; 4. How rent is payable; 5. To whom rent is payable ; 6. Liability of tenant to pay rent. 1. Days of Payment of I^nf^ 191. The days of payment are either by the particular appointment of r*1Q4n ^^^^ parties, or in default thereof bj^ the *appointment of law so as •- -^ to answer the intention of the parties ;(rfj and, therefore, if A. makes a lease to B. the 6th of August, rendering yearly the rent of forty shillings at the two feasts of the year, that is, at Lady-day and Michaelmas, by equal portions ; though in this case by the appointment of the parties Lady-day be the first term mentioned, yet the first paj'ment shall be made at Michael- mas ensuing the date of the lease; for without such transposition, the inten- tion of the parties would never be fulfilled ; because the rent being reserved annually, the lessor would lose the profits of one-half year, as the lessee would enjoy the land from the date of the lease to the first Michaelmas without paying rent, and so likewise from the last Lady-day of the term to the expiration of it; because, although the lease ended in August, yet the payment was not to be made till Pvlichaelmas, before which the lease expired. (e) See also 5 Co. 112; 3 Bulst. 328; 2 Roll. Rep. 213; T. Jo. 109, as to how the law marshals payments. So, if a man make a lease the first day of Maj% reserving rent quarterly, this shall be intended quarterly from the making of the lease ; for if the beginning of the quarter be construed to be an}' other daj'' than the date of the lease, the lessor will lose a portion of the profits. (/) 192. A rent reserved generally is payable at the end of the year ;(g') and although there was a parol agreement to pay quarterly, and the rent was accordingly paid quarterly, yet, as there was no mention in the written agreement of the time when the rent was to be paid, it was held, that the rent was still payable yearly, and not quarterly ;(/i) and if the rent is made payable yearly during the time that the lessee shall enjoy the land, the lessor cannot demand this rent half-j'earlj', but must wait to the end of the r*lQ^"l y^^^"(0 *^°' ^^ ^ "^^'^ grants a rent of 10/. to another, payable at L -^ the two usual feasts of the year, this shall be intended by equal por- tions, though it be not so mentioned in the deed, because where there are two several days appointed for the payment, it is the most equal construc- tion that a moiety of the rent shall be paid at each day ;(A') and the two usual feasts shall be deemed to be Ladj^-day and Michaelmas, because they are the days usually appointed in contracts of this nature. (/) 193. When special days of payment are limited by the reddendum, the rent must be computed according to the reddendum, and not according to the habendum ; and the computation of the rent according to the habendum is only when the reddendum is general, that is, yielding and paying quar- terly so much rent.(m) {d) Plovvd. 171 ; 1 Inst. 217 ; Hob. 172 ; Gilb. on Rents, 48. (e) Hill V. Grange, Plowd. 171. ( f) 2 Roll. Abr. 449, 450. (ir) Latch, 264. (/() Turner v. Allday, Tyr. & Gr. 819. (i) Hctl. 53 ; LiU. Rep. 61. (/r) Noy, 18 ; 2 Roll. Abi". 450. (Z) 2 And. 122 ; 2 Roll. Abr. 450. (m) Tomkyns v. Pinsent, 2 Ld. Raym. 819 ; S. C, 1 Salk. 141 ; 7 Mod. 96. PAYMENT OF RENT. 147 Where rent is reserved quarterly or half-quarterly, if required, and the landlord received the rent quarterly for the first twelve months, it was held, that he could not without notice distrain for a half-quarter's rent ;(n) and if rent is intended to be made payable in advance, it must be so clearly specified ; for where a house was let at a yearly rent, payment to conunence at Michaelmas, and to be paid three months in advance, such advance to be paid on taking possession, held that this advance was confined to the first quarter only ; and if the intention had been otherwise, it ought to have been said <« alwaj^s paid in advance" ;(o) but under a reddendum of a yearly rent, payable by four equal quarterly payments, commencing from the 25th day of March then instant ; the first quarter's rent is payable on the said 25th day of March ; and consequently the rent is a beforehand rent ;(/)) and yet under an agreement for the quarterly *'payment of rent, ,-:•., q(.t the first payment becomes due at the end of the first quarter, and L J the custom of the country to pay rent in advance cannot be imported into it. (7) Where on a parol demise rent was to be payable from the Lady.day following, evidence of the custom of the country was held admissible, to shew that the parties meant "Old Lady-day ;"(r) so, where the defendant in replevin avowed that the rent was payable at Martinmas, to wit, Nov. 23rd, this was held to mean Neiv Marlinmas, but evidence Vv'as admitted to shew that the rent was payable at Old Martinmas. (s) 2. When Rent is due. 194. The time when rent is due by law respects either the part of the day, or the day itself. As to the part of the day, it seems to be settled that rent is not due until midnight of the day upon which it is reserved ;(^) although sunset is the time appointed by law to make a proper demand of it, in order to take advan- tage of a condition of re-entry, and to tender rent in order to save a for- feiture. (?<) • As to the day itself, it has been held, that where the reservation is in the alternative, to pay at anj^ particular feast, or so many days after, although it is in the election of the lessee to pay at the feast, yet the rent was not legally due until the last of the days after ;(w) and where the reservation was until a certain feast, the feast-day was held to be inclusive ;(.r) and though there be election to pay on the *said feast or twentj^-one days after, yet ^-^i, q~-, this was held not to be material, for when the last feast comes, it is L -^ absolutely due on that day, (a;) (n) Mallam v. Arden, 10 Bin^. 299 p S. C, 3 Mo. & Sc. 763. (0) Holland v. Falser, 2 Stark. 161.'' (p) Hopkins V. Hclmorc, 8 Ad. &l E. 463 -s S. C, 3 Ncv. & P. 4r,3 ; 1 W. W. &, U. 386 ; 2 Jur. 856. (v) Doe v. Wellcr, 1 Jur. 62i2. (r) Doe V. Benson, 4 B. & A. .588,' recognised in Den v. Hopkinson, 3 D. ifc R. 507.« (s) Sinitli V. Walton, 8 King. 23.> ;' S. C. 1 M. & Sc. 380. (0 Chin's case, 10 Co. 127 ■ Duppa v. Mayo, 1 Sannd. 287 ; S. C, 2 S:ilk. 578. See also Soutliern v. Bellasis, cited Rockingham v. Pen rice, 1 P. Wuis. 177 ; Strafford (Earl) v. Lady VVentworth, Id. 180. (tt) Duppa v. Mayos sup. {v) Chin's case, snp. Ix) Bigg-on V. Bridge, 3 Kcb. 534, overruling Umblc v. Fisher, Cro. El. 702 ; S. C, Yelv. 74; and recognising Anon., 3 Leon. 211. » 25 Eng. Com. Law Reos. 140. '3 Id. 294. •■35 Id. 439. ''G Id. 527. '16 Id. 177. '21 Id. 2S6. 148 crabb's law of real property. The question as to the time wlien rent is due, affects not only the party- liable to pay, but also the party entitled to receive. Rent is not due before the day of payment incurred,(l) and if paid by the tenant before it is due, it is a voluntary payment ;(s) and if the lessor dies on the day when it ought to be paid, but before midnight, tlie rent which is incident to the reversion will go with the land to the heir or reversioner ; but this is to be understood of the case of a lease made by a person seised in fee, or made under a power ; for it is otherwise in the case of a lease made by a tenant for life. Where the rent is once due, or in arrear, it goes to the executor as a chattel, ahhough before it is due he cannot recover it :(«) and where a tes- tator died in the afternoon of Michaelmas-day, after having received rent from one of his tenants on the morning of that day, the executor was com- pelled to account for it to the party entitled. (6) As to what goes to the heir, and what to the executor, see further, ante, § 12. 3. ff'here Jient is pai/able. 195. "Where rent is reserved payable yearly, it is to be paid on the land, for the land is the debtor ; (f)(2) and it makes no ditierence that a man has bound himself to perform the covenants of his lease, for the rent may be tendered on the land without seeking the obligee. (r) The lessee of the queen must pay his rent, without demand, at the Exchequer, wherever it may be ; but if the queen grant the land in *reversion, the patentee L -^ must demand the rent on the land before he can enter as for a for- feiture for non-payment. (c) 4. How lie nt is payable. 196. If the tenant pay his rent before the day, it is voluntary, and no satis- faction at law ; but if it be paid in the name of seisin of rent, it will enure to give seisin ;(/) but such payment in equity will it seems discharge the lessee •,{g) but the remainderman may in that case recover it from the per- sonal representatives. (^) If rent is payable at the feast of Easter, and the tenant pays the rent in the morning, and the lessor dies at two hours before noon of the same day, this payment although voluntary is a good satisfac- tion against the heir, but not against the queen ;(/*) and the same has been decreed in equity. (/) Rent in arrear, whether by deed or parol, is held to be of equal degree with a specialty debt, and therefore in the distribution of a deceased tenant's (z) See post, § 197. («) Pilkington v. Dallon, Cro. El. 575. (6) Lord Rockingham v. Pcnricc, sup. (c) 1 Inst. 201, b. (e) Borou2:li v. Taylor, Cro. El. 462. (/) Chin's case, sup.; Cromwell (Lord) v. Andrews, Cro. El. 150. {g) Rockina-ham (Lord) v. Oxcnden, cited in ex parte Smyth, 1 Swanst. 346, n. \h) 44 E. 3^3 b, cited in Clun's ease, sup.; and sec Yelv. 167 ; Brownl. 106; Hard. 24, (i) Lord Rockingham v. Penrice, sup. (1) Wood V. Partridge, 11 Mass. 493. Bank v. Wise, 3 Watts, 401. And an evictioa on the day on which payable, extinguishes it. Smith v. Sheplserd, 15 Pick. 147. (2) Whether in money or kind; and a plea of readiness and tender there sufficient. Walter v. Dewey, 16 Johns. 222. PAYMENTOFRENT. 149 estate, is to be paid with debts of that degree. (Ar) Rent, like any other spe- cies of debt, may be paid by a remittance by the post, and if so directed by the landlord and it be lost, the latter must bear the loss ;(/) and so a landlord or any other creditor may insist upon payment being made to himself; but havino- once authorized payment to an agent, he cannot revoke the author- ity, if the debtor has given such a pledge to pay as would bind him in a court of law ;(m) and in the 3 and 4 W. 4, c. 42, debt for rent upon an indenture of demise is *put on the same footing as other specialties, p*iQQ-i see Dig. iii, tit. Limitations of Actions. ^ If a landlord take a security, as a bill of exchange and the like, this will not amount to a payment, nor bar him of his remedies.(/?)(l) As a rule no payments made or damages sustained by a tenant can be set off against a claim for rent, except a payment for ground-rent ;(o) or for the land-tax under the 38 G. 3, c. 5, s. 17, which requires such deductions to be allowed ;{p) or the property-tax ;{q) or other rates regularly assessed on the landlord ;(r) or where a tenant is compelled to make any payment which the landlord is bound to make, in order to save himself from being ousted ;(*) or where the tenant is compelled to make repairs, which the landlord is bound to make ;(/) or where there is a special agreement, that the tenant may deduct from the rent moneys due from the landlord.(a:)(2) 5. To whom Rent is payable, or who entitled to receive Rent. 197. As to the persons entitled to receive' rent, questions have arisen be- (k) Willott V. Earlc, 1 Vern. 490 ; Gage v. Acton, 1 Freem. 512 j S. C.,Com. 67 ; Carth. 511 ; 1 Salk. 325 ; 'I'hompson v. Tliompson, 9 Price, 471. (Z) VVarwicke v. Noakes, 1 Pcake, 67. (m) Hodfrson v. Anderson, 3 B. & C. 842 ;' S. C, 5 D. & R. 735. (n) Harris v. .Sliipway, Bull. N. P. 182; Ewer v. Clifton, Id.; and see Swin v. Milul, 1 Ken. 370 ; Davis v. Gvde, 3 Ad.& Ell. 623 ; S. C, 4 Ncv. &, Man. 462 ; 1 Harr. &. ^VoU. 50 ; Palfrey v. Baker,"3 Price, 573. (o) Doe V. Hare, 2 Cr. & Mess. 145 ; S. C, 4 Tyrwh. 29. (p) Saunderson v. Hanson, 3 C. & P. 314 ;" Carter v. Carter, 5 Bing. 406 ;" S. C, 2 M. &, P. 732. (V) Clennell v. Read, 7 Taunt. 50 ;^ S. C, 2 Marsh. 371. (r) Roper v. Bumford, 3 Taunt. 76. (s) Smith V. Pcarce, Woodf. L. Sl T.291, 4th ed. by Harr. &, Woll. {I) Waters v. Woigall, 2 Inst. 575. (x) Willson v, Davenport, 5 C. & P. 53l.« ' (1) Nor a promissory note, Snyder v. Kunklcman, 3 Penna. Rep 487, nor a judgfment on the covenant, Chipman v. Martin, 13 Johns. 240; Bancleon v. Smith, 2 Binn. 153 ; or in debt and security given, Shetsline v. Keemle, 1 Ash. 29 ; Gordon v. Correy, 5 Binney, 552. (2) In Pennsylvania, where the right of set-off is much more extended than elsewhere, including damages for breach of distinct contracts, the right is confined in replevin for distress, to damages for the covenants in the lease which constituted part of the considera- tion of the rent. Peterson v. Haight, 3 Whart. 150-3, and cases cited ; Warner v. Clark, id. 193 ; Gray v. Wilson, 4 Watts, 39. But in Xew York, an omission to repair or finish, cannot be set off, though it is not said whether the lease contained a covenant to that effect, Allen V. Pell, 4 Wend. 505. Etheridge v. Osborn, 12 Wend. 529, was a covenant by the landlord to construct a race-way, a non-comi)liance with which could only be remollied by a separate action. There certainly seems to be good sense in the view taken in Fairman V. Fluck, 5 W. 517, tliat covenants for rents are like other covenants, and where the plain- tiff has not complied with his precedent condition, he cannot compel payment of its consi- deration. »10 Eng. Com. Law. Rep. 247. ti4 Id. 324. '15 Id. 479. ^2 Id. 50. ^4 Id. 442. 150 crabb's law of real property. tween the real and personal repres,entatives of the deceased lessor, between the landlord and tenant, or the mortgagor and mortgagee. As between the real and personal representatives the rent will on the death of the lessor go to the one or the other, either according as the rent is reserved or as the death happens before or after the rent becomes due ;{y) «onm ^^^ ^^^^ must be understood as applying only to the case of a lease L -I made *by a lessor seised in fee, or made by one under a power ; in the case of a lease by a tenant it is difierent. In two particular cases, indeed, it has been held that the executor of a tenant for life was entitled to the rent although the lessor died before it was due ; as where A. granted a rent- charge toB., payable at Lady-day and Michaelmas, and B. died on Michael- mas-day after sunset, it was held, that as B. lived till after sunset, which was the legal time for demanding the rent, though he died before twelve at night, it should go to the executor ;(z) and so, where A., tenant for life, remainder to his wife for life, made a lease reserving rent at Lady-day and Michaelmas, and died on Michaelmas-day about twelve o'clock at noon, liis administrator was held to be entitled to this rent ;(«) for the Court look a difference be- twixt a rent incident to a reversion, which must go somewhere (if not to the executor, then to the heir), and where the rent can go nowhere, unless to the executor; in which latter case if the lessor lived to the beginning of the day, at which time a voluntary payinent might be made, this woi^d be sufii- cient to entitle the executor or administrator to.the rent, rather than it should be lost ;(6) but in other cases where the lessor, tenant for life, died before the time reserved for the payment of the rent by the lessee, the rent which accrued from the last quarter to the time of the death was lost, or, in other words, retained by the lessee himself ;(e) but by the 11 G. 2, c. 9, s. 15, amended and extended by 4 & 5 W. 4, c. 22, this portion of the rent is given to the executor or administrator. See post, § 210 ; also Dig. P. ii. tit. Apportionment. 198. A payinent of rent by mistake or misrepresentation to a person not entitled to it, does not preclude the tenant from shewing, that the person, to -. whom it was paid, was not ^entitled ;((/) and the party paying under L -^ such a misapprehension may recover the amount so wrongfully paid :(e)(l) and where a landlord received through his agent his rent regularly from a tenant, without deducting the sewers' rate, which it was afterwards (y) See ante, § 105. (z) Bellasis v. Cole (sometimes cited as Southern v. Bellasis), cited in Rockingham (Lord) V. Penrice, 1 P. Wms. 178 ; 1 Saund. by Wms. 288, n. (17). (a) 10 Co. 127, b. (/>) 10 Co. 127, b. See also StratTord (Earl) v. Lady Wentwortli, Free. Chan. 555, cited 1 P. Wms. 180. (c) Jenncr v. Morgan, 1 P. Wms. 392. ((/) Rogers V. Pitcher, G Taunt. 202 ;f 8. C, 1 Marsh. 541. (e) Williams v. Bartholomew, 1 B. &. P. 326, (1) The same principle is found in effect in a dictum in Boyer v. SmRh, 5 W. 66, and was decided in Glcim v. Rice, 6 W. 44 ; Robhins v. Kitchen, 8 \V. 390. A tenant is estop- ped denying his landlord's title or setting up title in any other; but fraud in obtaining acceptance of a lease by a tenant, or after having conveyed in trust for creditors, are excep- tions to this rule, 'Eng. Com. Law Reps. i. 355. PAYMENT OF RENT. 151 found that by the terms of the agreement the tenant ought to have paid, he could not recover the sums so deducted as arrears of rent,(/) If a landlord grants a lease, reserving rent, and no rent is paid, this is held to be adverse possession, in the same manner as if rent had been paid to the wrong per- son, (g-) One of several joint tenants ma}' demand and receive the whole rent due and give a discharge for it, and such a discharge is binding on his com- panions ;(/j) so, upon a lease by tenants in common, the survivor may sue for the whole ; although the reservation be to the lessors according to their respective interests. (i) Where money is paid by a tenant after an act of bankruptcy by a land- lord who is about to distrain, such payment will be good, and cannot be impeached by the assignees. (A')(l) As to the effect of the wrongful pay- ment of rent in respect of the Statute of Limitations, see Dig. P. iii. tit. Limitations. 199. By the 8 A. c. 14, when the goods of a tenant are taken in execu- tion the landlord may claim to be paid a year's rent ; but in that case there must be an existing tenancy at the time ; therefore, where growing crops of a tenant were seized under a fi. fa. and a writ of habere facias jwsses- sionein was subsequently delivered to the sheriTf in an ejectment at the suit of the landlord, it was held that the growing crops *could not be ps.202l legally considered as belonging to the tenant, he being a trespasser L from the day of the demise laid in the declaration, and that the sheriff" was not bound to allow a year's rent under the statute, Avhich contemplates an existing tenancy only at the time of the execution ;(/) and the demand must be made while the goods are in the hands of the sheriff'; and, therefore, could not be made by an administrator, to whom administration was granted after the goods were sold under an execution \{m) and the landlord cannot claim from the sheriff' rent accruing due subsequently to the levy and sale under a fi.fa., although the goods were not removed from the premises ;(n) but where a person held under an assignment of a lease which by the terms of the agreement was not completed at the time of the fi. fa. levied on the goods of the assignee, the sheriff' nevertheless was held bound to pay the lessee half a year's rent due at the time of the levy ;(o) and a sherifl'ought have evidence that the rent is due.(/)) ( f) Waller v. Andrews, 3 M. vt W. 312 ; H. & H. 87. (£■) Doe V. Oxcndcn, 7 M. .'t W 131. {!<) Robinson v. Hotf.nan, 4 Bing. oG2 ;; S. C, 3 C. & P. 234; 1 M. &P. 474. (i) Wallace v. M'Larcn, 1 Man. & Ryl. 51 G.'- (k) Stevenson v. Wood, 5 Esp. 200, See also Mavor v. Croomc, 1 Bing. 261 ;■ S. C, 8 J. B. Moore, 171 ; Darnton v. Pia:man, 3 Pcake, 111. (Z) Hodgson V. Gascoigne, 5 B. & A. 88.'' (/«) Waring v. Dewberry, 1 Str. 97. \n) Hoskins v. Knisfht, 1 M. Sc S. 24;'). (o) Saunders v. Musgrave, 6 B. cSo C. 524 ;' S. C, 9 D. &. Ryl. 529 ; 2 C. &i P. 294. See also Duck V. Braddyl, 13 Price, 455. (p) Keightly v. liireh, 3 Campb. 521. See also Dig. P. ii. tit. Distress, P. iii. tit. Inter- pleader. (1) So if assignees for creditors be permitted to remove on their promise to pay, they are entitled to a credit for the amount. Osborne's Estate, 5 Wliart. 267. 615 Eno-. Com. Law Reps. 73. ''17 Id. 273. i8 Id. 316. ^7 Id. 35. '13 Id. 243. 152 CRABb's LAW OF REAL PROPERTY. 200. The statute extends to every kind of execution, as for the costs of a nonsuit ;('/)(!) so, a sequestration has been held to be within the statute ;(r) so, notwithstanding outlawry, in a civil suii;;(s) but bankruptcy is not an execution within the statute ;(/) and the landlord cannot retain a year's rent acrainst the assignees of the tenant under the Insolvent Act.(.'r) So, before the 11 G. 4, and 1 W. 4, c. 14, extending the provisions of the 8 A. c. 14 to the county of Durham, the sheriff was not bound to pay the landlord a year's rent out of goods seized under a pone per vadios or ^ *any writ of extent thereon, issuing out of the Court of Pleas of L J Durham. (y) In all cases a landlord is not entitled to a year's rent as against the claims of the Crown, as where goods have been seized under an extent in aicl.(z) Where there are two executions on the tenant's goods, the landlord can demand his year's rent under the statute out of one of them only. (a) 201. As between a mortgagor and mortgagee, the former is not to pay rent lo the latter ;(6) but since the 4 A. c. 16, dispensing with the necessity of attornment by tenants, notice to the tenant is absolutely necessary in order to entitle the mortgagee to the rent ;(c)(2j and where a tenant not having received notice had paid his lessor, the mortgagor, he was excused from paying it again to the mortgagee ;(J) and where a mortgagee gives notice to the tenant in possession to pay the rent to him, and he pays it to the assignees of the mortgagor, a court of equity will not order them to refund the rent to the mortgagee ;(e) but as to the claims of a mortgagee in case of the bankruptcy of the mortgagor, see further, post, § 205. 6. Liabilify to pay Rent or otherwise. 202. Where the law creates a duty or charge, and the party is disabled from performing it, without any default on his part, and has no remedy over, the law will excuse him, and therefore if the tenant be evicted from ^, -, the lands demised *to him, he will thereby be discharged from the [-204] p^yjjjgj,^ Qf rent,(/) for as the rent is something given by way of retribution for the use and occupation of the thing demised, if the tenant be {q) Henchett v. Kimp'on, 2 Wils. 140. (r) Dixon V. Smith, 1 Swanst. 457. (s) St. John's College (Oxford) v. Murcot, 7 T. R. 259. (() Lee V. Lopes, 15 East, 230. Ix) Taylor v. Lanyon, 6 Bing. 536 ;"> 4 M. & P. 316. ly) Brandling v. Barrinp-ton, 6 B. & C. 467 ;" S. C, 9 D. & Ryl. 609 ; sed secus under that Act, Getliin v. Wilks "2 D. P. C. 189. (z) R. V. Dceaux, 2 Price, 17 ; and sec also the saving clause in 11 G. 4 & 1 W. 4, c. II, s 2 ; Dig. ii. til. Execution. ('/) Dod v. Saxby, 2 Str. 1024. {!>) Moss V. Gallimore, 1 Dougl. 265. {r) Id. UJ) Watts V. Oo-nell, Cro. Jac. 392, recognised in Birch v. Wliitc, 1 T. R. 384. (e) Ex parte Wilson, 1 Rose, 444 ; S. C, 2 V. & B. 252. (/) Gilb. Rents, 145. (1) And to execution on the goods of strangers on the property, Russell v. Doty, 4 Cow. 576 And to attachments under tlie act of ] 842, Morgan v. Moody. 6 W. & S. 333. And to foreign attachment, Peirce v. Scott, 4 W. & S. 344. But the Pennsylvania act does not extend to owners of ground-rents, Pattison v. McGregor, S. C. Apl. 1845. (2) Post, § 231. ■"19 Eng. Com. Law^ Reps. 161. "13 Id. 238. P A Y M E N T O F R E N T. 1 53 deprived of the land, his obligation to pay the rent ceases ;(/) but where a parly by his own contract iaiposes on himself a duty or charge, he is bound to make it good, notwithstanding inevitable acciderit,(^^) therefore under a covenant to pay rent, a lessee is bound to pay the rent during the term, although the house be burnt down, (A) and although the case of fire was expressly excepted under the covenant to repair,(A) for where a party enters into an absolute contract without any qualification or exception, and receives from the party with whom he contracts the consideration for such engagement, he must abide by the contract ;(i) and at law it appears to be settled, that, as a consequence of a house being burnt down, a landlord in the absence of any stipulation to the contrary is not bound to rebuild, and the tenant is bound to pay rent;(A-) and a covenant that in case the premises are burnt down the lessor shall rebuild, otherwise the rent shall cease, will not be considered as coming under the words " usual covenant. "(/) 203. In some of the earlier cases a court of equity would grant an injunction against the landlord's claim of rent until the premises were re- built ;(m) and a similar decision was come to in Steele v. Wright, («) but where there are no special circumstances, the general rule prevails, that equity follows the law,(l) therefore where the tenant covenanted to repair, " damage by fire only excepted," and the premises *being burnt psson^il down, the landlord refused to rebuild the premises, or take a sur- L render of the lease, and commenced an action at law on the covenant for non-payment of the rent accrued due since the fire, on a bill for an injunc- tion, the Court after full consideration decided, that as there was no defence against an action at law, the tenant had no remedy in equity against the unrestricted covenant to pay the rent,(o) and on this principle it has been decided that a tenant has no equity to compel his landlord to expend money received from the insurance office, on the demised premises being burnt down, in rebuilding the premises, or to restrain the landlord from suing for the rent until the premises are rebuilt. (jo) (/) Gilb. Rents, 145. (g-) EaraJinc v. Jane, Al. 27. (A) Monk V. Cooper, 1 Sfr. 7G3 ; S. C, 2 Ld. Rayin. 1477, and fully recognised m Bel- four V. Weston, 1 T. R. 310, wliieh was precisely a similar case. (i) Bealc v. Thompson, 3 B. & P. 420. See also Baker v. Holzapfel, 4 Taunt. 45. (k) Pindar v. Ainslcy, cited 1 T. R. 312 ; also in Doc v. Sandham, Id. 710. (Z) Doe V. Sandham, sup. (w) Brown v. Quilter, Ambl. 619 ; S. P., Camden v. Morton, 2 Eden, 219. (n) 1 T. R. 708. (0) Hare v. Groves, 3 Anst. 687, recoo^niscd and acted upon in Holzapfel v. Baker, 18 Ves. 115. (p) ChceUiam v. Lccd, 1 Sim. 146. (1) This rule has generally prevailed in the United States as to covenants for payment of rent in case of destruction of the building- by fire. Lamott v. Stcrrct, 1 Harr. & John. 42. Fowler v. Bott, 6 Mass. 63. Gates v. Colvin, 4 Paige, 355 ; or in case of an eviction by an invading army. Wagner v. White, 4 Harr. &. John. 564. Pollard v. Siiaffer, 1 Dall. 210 ; thougii in tlie latter case it was considered a de'ence to a covenant to repair. In Ripley v. Wightman, 4 M'Cord, 447, it was however held, that where a hurricane rendered an house untenantable, this was a good defence to a distress for rent; and in Kerr v. Merchants' Exchange, 3 Edwd. C. R. 315, it was held where the demise was of a room merely, and the premises were rebuilt, the lessee was not entitled to a room in the new building. S. P. Uniton v. Cornish, 5 Ohio, 303. If he were liable on hie covenant for rent in such a case, a great absurdity would ensue. 154 CR abb's law of real property. 204. If the lands demised be evicted from ihe tenant or recovered by a title paramount, the lessee is for the reason before mentioned^j) discharged from the payment of the rent from the time of such eviction ; but notwith- standing such recovery or eviction, the tenant shall pay the rent that became due before the recovery, and therefore rent due from a lessee was held not to be extinguished by the lands being extended by the queen, though it accrued between the extent and the liberate ;(r) because the enjoyment of the land being the consideration for which the tenant was obliged to pay the rent, so long as the consideration continued, the obligation must be in force ;(s) but a plea of mere entry by the lessor, or destruction by him of part of the premises, without alleging an actual expulsion, is not sufficient, for these are simple trespasses. (/)(1) 205. For the same reason if part only of the land let be evicted from the ,^ --, tenant, such eviction is a discharge of *lhe rent in proportion to the L "* - land,(w) although formerly where a tenant was evicted before the day appointed for the payment of the rent, such eviction discharged the tenant from the payment of any rent; because before the 11 G. 2, c. 19, there could be no apportionment in respect of part of lime, as there might be in respect of part of the land. See further, post, § 220. So, where a tenant from year to year, at a rent payable half yearly, quitted at the end of a current year without giving notice, and the landlord relet the premises before the end of the next half year, it was held that he had evicted the first tenant and could not recover rent subsequent to the period when he quitted ;(x) and so, when lands have been let to one who underlet to others, and the latter receive notice to quit from the original landlord, in consequence of which one of them quits, and the premises remain unoccupied, this was held to amount to an eviction, and the landlord could not recover for the unoccupied premises ;{y) so, where in consequence of disputes between a landlord and a tenant, the latter said he would leave, to which the former assented, he could not recover the quarter's rent ;(r) but putting up a bill to let the premises which the tenant had quitted (q) See ante, § 202. (r) Playne's case, Cro. El. 47. (s) Hob. 82; 1 Inst. 143; 2 Roll. Abr. 429. (t) Reynolds v. Buckle, Hob. 326. (i/) Dj. 56; 10 Co. 128 a. ; Roll. Abr, 235. (x) Hall Y. Burgess, 8 D. & R. 67. {y) Burn v. Phelps, 1 Stark. 94.» («) Griinman v. Legge, 8 B. Al C. 324 ;■■ S. C, 2 .Man. & Rjl. 43S. (1) Eviction has no effect on rent in arrear. Kessler v. Conachy, 1 Rawle, 442 ; except as a set-off for damages ensuing therefrom, per Gibson, C.J. Hemphill v. Eckteldt, 5 Whart. 278. And there is a distinction between an eviction by title paramount or a mere entry, but no expulsion, into part of the premises by the landlord, in which case the defence is pro tanto, Lansing v. Van AJstine, 2 Wend. 561. Bennett v. Bittle, 4 Raw 339; and a wanton eviction by the landlord from any part of the premises or thing demised. Dyott v. Pen- dleton, 8 Cow. 730. Vaughan v. Blanchard, 1 Yeat 175, 4 I 'all. 124, when the whole rent is suspended. And this eviction may be constructive, as by riotous and indecent con- duct on part of the premises reserved, which compelled the tenant to seek another habita- tion; or by a wrongful distress by a landlord who had granted the reversion and rent incident thereto, reserving a rent. Lewis v. Payne, 4 AVend. 423. Xor is a tenant bound to resist the grantee of his landlord though he might do so lawfully, but a submission to such a grant will be an eviction by the landlord. M'Elderry v. Flaunagin, 1 Harr. v. Gill, 308. »2 Eng. Com. Law Reps. 310. ns Id. 229. PAYMENT OF REN T. 155 without giving the proper notice, did not prevent the landlord from recov- ering/ff] Where premises are let at an entire rent, an eviction from part, if the tenant thereupon give up possession of the residue, is a complete defence to an action for use and occupation ;(6) but if the tenant after the eviction con- tinue in possession of the residue, he is liable upon a quantum meruit.{c) See further as to apportionment of rent, post, 5 210, and as to discharge of rent by extinguishment, see post, § 208. The lessee being a party to the original contract, continues *al- p^««-i ways liable for rent, notwithstanding any assignment :{d) the privity L J of contract between the lessor and the lessee not being thereby discharged. (e) An assijrnee on the other hand is liable only when he continues in posses- sion, for his obligation arises out of a privity of estate between him and the assignor, and ceases as soon as that privity ceases •,{f\ he is, therefore, not liable for rent accruing after the assisrnment o%-er, although the assign- ment be wrongful ;(^) an assignee has however been held liable in equity, although the privity of estate has been destroyed, so far as to account for the rent the whole time he enjoyed the land ',[h) but it is not settled whether an assignee would be restiained from assigning over to a beggar.(j) On the principle of the continued liability of the lessee, bankruptcy was held not to discharge him from his express covenant ;(^-) so, where a dispo- sition of a lease has been made by virtue oia.fi.fa. or an elegit, the tenant continues liable under the lease ;'A:\ and so, although the estate and interest of a covenantee be divested out of him by Act of Parliament, yet without a special clause to release him, he is still liable upon his express covenant. (A-) In case of bankruptcy, the 6 G. 4, c. 16, has made provision to relieve the bankrupt lessee from his liability to the rent and covenants of his lease. 206. A tenant from year to year, who is under no obligation to repair, may quit without any previous notice, upon the premises becoming unsafe for want of repair or unwholesome for want of drainage,(/y(l) and he will not be liable *for any rent after the occupation has ceased to be bene- ^^2081 ficial ;fm) and so where, in doing the repairs, the house is rendered •- unfit for the habitation of the tenant or his lodgers ;(n) so, on the same prin- ciple where a landlord by his misconduct justifies a tenant in abruptly quit- ting during a tenancy for a limited period, he can recover rent only for the («) Redpath v. Roberts, 3 Esp. 225. Qf) Smith v. Raleigh, 3 Campb. 513. (c) Stokes V. Cooper, 3 Campb. 514. (rf) Eaton v. Jacques, 2 Doue. 455. (*•) Hornby v. Houlditch, 1 T. R. 93, n ; (a Tovey v. Pitcher, Carth. 177 ; S. C, Salk. 80 ; 2 Vent. 228 ; 4 Mod. 71 ; 3 Lev. 2:)5 ; Boulton v. Canon, 1 Frcem. 326 ; S. P., Cooke V. Harris, 1 Ld. Ravm. 363 ; Kniehtlev v. Buckley, 1 Lev. 215. ( Paul V. Nurse, 2 :\Ian. .V Ryl. 525. (?) lb.; but see Knight v. Freeman, 1 Vent, 329 ; and contri, Le Keui v. Nash, 2 Str 1221 ; Bull. N. P. 159. (/i) Treacle v. Coke, 1 Tern. 165. (i) Philiwt v. Hoare, 2 Atk. 219 ; S. C, Ambl. 480 ; Fonbl. Eq. Tr. 351, n. ; Bac. Abr tit. Covenant, ' E. 4.) (k) Auriol v. MiUs, 4 T. R. 94. (/) Collins V. Barrow, 1 Mood. & Rob. 112. (m) lb. («) Edwards v. Hetherington, 7 D. & Rvl.;» S. C, Rv. & Mood. 268; S. P. Salisbury V. Marshall, 4 C. &. P. 65." (1) Ante, 199, n. 2. '16 Eng. Com. Law Reps. 271. ' 19 Id. 275. 156 crabb's law of real property. time that there has been an actual occupation ;(o) so, where a colliery became not worth working and the lessee offered to pay for all the coal that could be got, he was relieved in equity against the future rent, and the covenants ;{p) but where A. agreed to purchase B.'s equitable interest in land for a term of years at a rent specified, it was held that after paying the rent for several years and acknowledging that a further sum was due, he could not resist B.'s claim for such further rent, by shewing that he was not able to use the land.(g) 207. An executor is liable for arrears of rent incurred in the lifetime of his testator, for although the person of the ter-tenant was not chargeable with the rent at law, but only the land by way of distress, yet it was held that his executor should pay the arrears as far as he had assets ;(r) but an executor may rehnquish the lease, if the property be insufficient to pay the rent.(s) If however he enters on the demised premises, he becomes an assignee, and in that character he is liable to the lessor ;(<) but where one of two executors entered, such entry was held not to accrue as the entry of the two, so as to make them both liable ;(?/) and where the party is charged as executor or administrator, he is liable to the extent of assets, but when as ^ assignee, only to the extent *of the profits received in respect of the L J particular premises ;(i') but it seems not settled whether there is any distinction between an executor and an administrator.(^^) U the whole rent incurs in the lifetime of the testator, the action to recover it from the executor must be brought against him in his representa- tive character,(a?) see further as to the recovery of rent, post, § 221. V. s^rtinguishmcnt anti ^uspenisfou of IXmt § Q08. Dischargee by Extinguishment. Suspension. Distinction between Rent-Service and Rent-Charg-e. § 209. E.xtinofuishinent by Conjunction of Estates. by Confirmation, by Grant. by Purchase. 209. Extinguishment by Lease. 208. As the tenant is discharged from the payment of rent when the land is evicted by a title paramount, so by a parity of reason, he shall be discharged from such payment when the lord purchases the tenancy, for in (o) Kirkman v. Jarvis, 7 D. P. C. 678. (p) Brown v. Morris, 2 B. C. C. 311; and sec also Jones v. Shears, 7 C. & P. 346.» Iq) Connelly v. Baxter, 2 Stark. 5--25.i> (r) Eton College v. Beauchamp, 1 Chan. Ca. 121. (s) Reid V. Ld. Tenterden, 4 Tyr. Ill, (t) Went. Otf. Ex. 120. (u) Nation v. Tozer, 1 C. M. & R. 172; S.C, 4 Tyrw. 561. (r) Rubery v. Stevens, 4 B. & Ad. 241.= See also Hargrave's case, 5 Co. 3; Bolton v. Canham, Freem. 327; S.C, Pollexf. 125; Helicr v. Casebest, 1 Lev. 127; Buckley v. Pirk, 1 Salk. 316; Rrmnant v. Bremridge, 8 Taunt. 191 ;' S. C. 2 J. B. Moore, 94. (w) Tremeere v. Morrison, 1 Bing. N. C. 89 ;« S. C, 4 Moore &, Sc. 603. (x) 1 Roll. Abr. 603 (S.) pi. 9 ; Fruen v. Porter, 1 Sid. 379. >32 Eng. Com. Law Reps. 537. ^2 Id. 458. '24 Id. 50. ^i Id. 66. ^27 Id. 315. EXTINGUISHMENT AND SUSPENSION OF RENT. 157 sucli case the lord cannot have both the land and the rent, nor shall the tenant be under any obligation to pay the rent, when the land, which was the consitleration, is resumed bj^ the lord into his own hands : and this resumption or purchase of the tenancy by the lord makes what is called ia the books an extinguishment of the rent ;(»/)( 1 ) but if the conveyance lo the lord was not absolute, but upon condition, or if it were only of a particular estate of shorter duration than the estate which the lord had ni the rent- service, in these cases, though *there were a union of the tenancy ^^g,^-i and the rent in the same hand, yet as this union was but temporary L J (for upon the performance of the condition or determination of the particu- lar estate, the tenant is restored to the enjoyment of the land, and cons'e- quently, the obligation to pay the rent revives) therefore the rent in such case was only suspended, and not extinguished ;(z)(l) so, if land descend to two co-parceners in fee, one of whom had a rent-charge in fee, issuing out of the land, the rent it seems is suspended until partition made.(f/) ' A distinction has however been taken between a rent-service and a rent- charge, for if a man who has a rent-service purchases part of the land out of which the rent issues, the rent-service is not extinguished but appor- tioned, so that such purchase is a discharge to the tenant for so much of the rent only as the value of the land purchased amounts to;(6) but if a man has a rent-charge and purchases part of the land out of which the rent issues, the whole rent is extinguished and the tenant consequently discharged from the payment of it, and the reason for this extinguishment is — that the rent is entire, and issuing out of every part of the land, (2) therefore by purchase of part it is extinct in the whole and cannot be apportioned, for a rent-charge was ajjainst common ricjht, and the law carried such contracts into execution only so far as the rent could take effect according to the original intention of them ; when therefore the grantee purchases part of the land, it becomes impossible, by his own act, that the grant should have its due operation ;(c) but this rule is confined to cases where it is the act of the party. (Jv 209. There may be an extinguishment in different ways, as by a conjunc- tion of estates, as where A. leases to B. for 100 years, and B. leases to C. for 20 years, rendering *rent ; A. granted the reversion to J. S., r-^nii-\ and J. S. purchased the reversion of the term, held that J. S. shall L -■ have neither the rent nor the re-entry, (e) If A. devises rent to B., and afterwards makes B. executor, there this rent shall be extinct, but where a man devises the term to one, and a rent out of it to another, and afterwards makes him to whom the rent was devised his executor, he may now elect to have this as legatee. (/) So rent may be extinguished by confirmation, as where a lease was made for life rendering rent, and after the lessor granted and confirmed the same (V) Clun's case, 10 Co. 128; Vaugh. 109 ; Pollc.xf. 142. (2) Bro. Extinguislimcnt, (1) ; Vaugh. 39, 299 ; Pollcxf. 142. (./) 1 Inst. 149, b; 1 Roll, Abr. 236. (h) Litt. s. 222; TalbotV case, 8 Co. lOo. (r) 1 Inst. 147, b ; Gilb. Rents, 152. . {d) See infra, § 209. (e) Lord Trcausurer v. Barton, Moor, 94, pi. 232, (/) Gough V. Howard, 3 Bulst. 122. (1) Phillips V. Bonsall, 1 Frm. 142. (2) Crawford v. Crawford, 2 VV. 240. Sod qucrv Addams v, Helfenstein, 9 W. 529. July, 1846,-11 158 crabb's law of real property. tenements, the better opinion was that by this the rent was extinct ;(^) so, where lessee of twenty acres rendering rent, grants all his estate in one of the acres to J. S., and the lessor confirms the estate of J. S., that the entire rent was held to be gone in the other acres, being an entire contract ;(/i) but if a man has a rent-charge out of certain land and he confirms the estate which, the tenant has in the land, yet the rent-charge remains to the con- firmor.(/) So, by grant there may be an extinguishment, as where a lease was made of 100 acres of land renderinfj rent, and afterwards the lessor granted 50 acres of it, it was held that the grantee should not have any part of the rent, but it was all destroyed ;(A') so, if the grantee of a rent-charge grants it to the tenant of the land and a stranger, it shall be extinguished but for the moiety, and so it is of a seignory ;(/) so limiting a remainder over of the land by him to whom the rent was first reserved upon the render by fine of the land entailed, was held to be extinguishment of the rent, and that it could not go to the remainderman. (?n) T-oxoi ^°' ^^^^^ "^^y ^^ extinguishment by purchase of parcel *of the *- J land, as where an annual sum is granted out of lands, so that it may be rent or annuity at the election of the grantee, if the grantee purchases parcel before election, he cannot make election afterwards, but the whole is extinguished ;(??) because the law prima facie says, that this was a rent- charge and not an annuity ;(o) but if before election parcel descends on the grantee, if he brings writ of annuity, the annuity is rrot apportionable, but he shall have the annuity entirely. (/)) And see further as to the distinction between a rent-service and a rent-charge in case of such purchase, ante, § 208. So there may be extinguishment by release, as if the lessor grants to the lessee for life, that he shall be discharged of the rent, this is a good release ;((y) but there is a diversity between several estates in several lands, and several estates in one land ; for if there be tenant for life of lands, the reversion in fee over to another, if they two join in a grant of a rent out of the lands, if the grantee releases either to him in reversion or to tenant for life, the whole rent is extinguished, for it is but one rent and issues out of both estates ;(r) so, if two tenants in common of land grant a rent-charge of forty shillings out of the same to one in fee, and the grantee releases to one of them, this shall extinguish but twenty shillings, for that the grant in judgment of law is several ;(s) so, by the release of a seignory a rent-charge is extinct ;(/) so, if a lease be made to begin at Michaelmas, reserving a rent, and before the day the lessor releases all the right that he has in the land, this cannot enure to enlarge the estate but to extinguish the rent;(M) so, where lessee for years assigns the term, and lessor releases all demands to the first lessee, this does not determine the rent, being after the assignment -, of the term, *only rent due before the release may be extinct by the '- ' -• release. (.r) So, there may be an extinguishment of rent by surren- (£■) Bro., Extinguishment, pi. 28, citing- 22 Ass. 18. (h) Gofldard's case, Ow. 10. (r; Litt. s. 536. (A) Wiseman v. Warreno-cr, 2 Leon. 252, pi. 339, citing 32 H. 8. {I) 1 Inst. 307, b. (?«) Wliite V. Gerishc, Moor, 575. {n) Fulwood v. Ward, 2 And. 4. [u) Sprint v. Hicks, 2 Bulstr. 149. (p) Fulwood v. Ward, sup. (• 217. There are some few other cases where the law of apportionment does not apply, or only under certain restrictions, as where the rent-service is something whole and indivisible, as a house, &c,,and the lessor purchases part of the land, such rent is wholly extinct, because it cannot be severed or apportioned ;(t') so, where a man has common of pasture sans nomhre in twenty acres of land, and ten of those acres descend to A., the common sans nombre being entire and uncertain cannot be apportioned, sed secus if it had been a common certain as for ten beasts ;(.r) so, if three joint-tenants hold by an entire yearly rent, as of a horse, &c., and the tenants cease for two years, and the lord recovers two parts of the land granted against two of them, and the third saves his part by tender of the rent ; although the lord comes to the two parts by lawful recovery, yet the entire rent shall be extinct ;(?/) but if an entire service be pro bono publico, as to repair a bridge or a way and the like, then although the lessor purchases part, yet the ser- vice remains, (y) 218. Again, there is a diversity between a rent in gross and a rent inci- dent to the reversion, concerning the apportionment thereof, as if a man enfeoff B. of one acre in fee upon condition, and B. being seised of another acre in fee grants a rent out of both acres to the feoffor, who enters into the one acre for the condition broken, the whole rent shall issue out of the other -, acre, because his title is paramount *the grant; but if a man make t J a lease for life of Black Acre and White Acre, reserving two shil- (s) 1 Roll. Abr. 237. (0 Campbell's case, 1 Roll. Abr. 237. (m) 1 Roll. Ab. 236. («) Litt. s. 2-22. (x) 1 Inst. 14J. a. (y) lb.; see also Bruerton's case, 6 Co. 1, 2. (1") This cannot be separated from the reversion by an execution. Montague v. Gay, 17 Mass. 439. APPORTIONMENT IN RESPECT OF PART OF TIME. 165 lings rent, upon condition that if the lessee does such an act that then he shall have fee in Black Acre, the lessee performs the condition, yet, although by relation he has the fee-simple ab initio, shall the rent be apportioned, for the reversion of one acre whereunto the rent was incident is gone from the lessor, (z) c. Manner of making Jlpportionment. 219. The making an apportionment is properly the business of a jury, who upon the evidence ofiered are to judge of the value of the land pur- chased by the lessor, or aliened by the tenant ;(o)(l) but if the lessee re- denaise part to the lessor reserving a rent, there shall be no apportionment, for the parties by the reservation have ascertained what rent shall be allowed for assign that part;(a) so, if part be assigned by the lessee to a stranger, who n-ns it to the lessor, there shall be no apportionment, for the lessor comes under the benefit of the stranger's contract. (a) An apportionment may be made upon a plea of nil debit pleaded by the tenant, because when issue is joined on such plea, it is the business of the jury tc^determine whether anything and how much is due ;(«) but the Tent cannot be apportioned upon a demurrer because the judges only deter- mine what is the law in the case, but the value of the land never comes in question ;(o) and where the apportionment is made between the landlord and the purchaser of part of the reversion without the privity of the tenant, he is not bound by it, and may dispute its propriety ;(6) and consequently the purchaser would, by the conveyance of the vendor without the concur- rence of the lessee, not acquire the same rights against the lessee, as he would have acquired if the annual rent had been legally apportioned by the *jury,(c) and the defendant may in his pleading set forth the value p«223l of the land and to what the apportionment shall be.(^/) '- II. ^ji?ottionmcnt m respect cf i3art of Eimt. 220. At common law there should never be an apportionment in respect of part of the rent as there should have been upon an eviction of part of the land;(e)(2) therefore if a tenant for life died before the day on which the rent became due, his executors could not claim an apportionment of the rent ; nor could the remainderman or reversioner claim that part of it which accrued during the life of the tenant for life, so that the tenant paid nothing.(/) The 11 G. 2, c. 19, s. 15, has remedied this defect in the law (z) 1 Inst. 148, b. {a) Hodgkins v. Robson, 1 Vent. 276. (//) Bliss V. Collin-?, 5 B. &. A. 876.> (r) Ih. See also S. C, 4 Madd. 229. Id) Hndgkins v. Robson, sup. (e) 10 Co. 123. (/) Jenner v. Morgan, 1 P. Wms. 392. (1) M'EIderrv v. Flannagan, 1 Harr. & Gill, 308. Cathbert v. Kulin, 3 Whart. 3GG. (2) Bank of Pcnna. v. Wii^e, 3 W. 394. And tbe reason is, tbat no part becomes due until the day of payment; otherv/ise of amounts growing due fions day to day, though payable for convenience on a piirticular day. As a charge reserved by a widow in lieu of dower. Sweigart v. Berks, 8 S. &, R. 306. Or an annuity accepted by lier in lieu of dower. Gheen v. Osborn, 17 S. & R. 171. By act of 1834, § 8, the stat. of 11 Geo. 2, has been re-enacted in substance as regards rents, and it is said to have been generally adopted i\i this country, 3 Kent's Com. 470. »7 Eng. Com. Law Reps. 286. 166 crabb's law of real property. by giving the rent due for the portion of the time that has elapsed of the quarter to the executors and administrators. In order that the rent may be apporlionable under the statute, the demise must determine by the death of tenant for Hfe. If the lease be such as to bind the remainderman, then the whole rent goes to him, and there is no apportionment.(g-) Before the 4 & 5 W. 4, c, 22, it was doubtful whether the first statute extended to tenants pur autre vie, or tenants in tail ;(/t) therefore, when an incumbent had leased the glebe and tithes of his living, and the lease expired by his death, the tenant having paid a whole year's rent to the successor, it was held that the executors of the last incumbent was entitled to an apportionment of the rent up to the time of his death ;(i) and time has been held to be the mea- sure of the apportionment in respect to tithes, as in respect to the profits of the land.(A') *In the case of dividends of stock, it was held that the remainderman, [*224] ^^^^j ^^^ ^[^^ executors, was entitled to a proportional share thereof to the time of the death of tenant. (/)(1) VII. Beco'ofri) of J^cnt. §221. Means of recovering Rent. 1. Bcmrtii? I)i) Distress. 222. In what Cases. § 293. Donor or Lessor. 224. BaililFor Agent. 225. Receiver. 22(i. Co-p:ircener. 227. Joint-Tenants. 228. Tenants in C-onimon. 229. Tenants in Tail. a. Who may distrain. § 230. Ilnsband in right of Wife. 231. Mortfragee. Annuitant. 532. Guardians and Committees. 233. Exeeutors. 234. Corporations. The Crown. b. What Things may be destrained, or otherwise. 235. General Rule. Exceptions. Things of no value. Dags, & c. Deer. 236. Tilings fixed to the Freehold not distrainable. 237. Cattle, wlien distrainable. Cattle within View of the Landlord. Cattle agisting. 238. Beasts of the Plough not distrain- able. 239. Nor Goods delivered to Tradesmen. Goods left at Inns. 240. Nor Goods in the Custody of the Law. 241. Nor Money in a Bag. Nor Crops of sown Corn, when. {s) Ex parte Smyth, 1 Swanst. 337. (/i) See Paget v. Gee, Amb. 1^8 ; Wliitfield v. Pindcr, cited in Vernon v. Vernon, 2 B. C. C. 662 ; also Dig. P. ii. lit. Apnortionniciit. (i) Hawkins v. Kelly, 8 Ves. 308. (A-) Aynsley v. Wordsworth, 2 V. A: B. 331, overruling Williams v. Powell, 10 East, 20b. (/) Sec Pearly v. Smith, 3 Atk. 260. Slierrard v. Sherrard, Id. 502 ; Wilson v. Harman, 2 Ves. 672. (1) Swicgart v. Berks, 8 S. & R. 306. RECOVERY OF RENT. 167 c. Time of making distress. 242. Not at Night. | 242. On what Days of the Year. d. Place where Distress may be made, or otherwise. 243. Upon the Land. 214. Distraining out of the Fee. Fraudulent Removal. 245. Distraining on any Part of the Land. Breaking in to Distrain. Several Distresses. *e. Manner of making a Distress, and the Proceedings thereon. [*225] 246. Acts of the Landlord and his Agent. Liability of the Landlord. 247. Appointment of a Bailiff, cVc. 248. Manner of disposing of the Distress. 249. Sale of the Distresses. 250. User of the Distress. Impounding Animals. IL 3Acmrti> 1)1} Hntvs. 25L Necessity of Demand. | 251. When Demand dispensed with. 252. Nomine Pcence. IIL lannrtii' b" Slctfon. 253. Action of Debt at Common Law. By Statute. 254. Executors and Administrators. Of Tenant for Life. 255. Holdinjr over. 255. Double Value under 4 G. 2, c. 23. 256 Double Rent under 11 G. 2, c. 19. 257. Action for Use and Occupation. Where it lies. 258. Where it does not lie. § 221. The means for recovering rent are — 1. The remedy by distress ;(1) 2. By entry ; 3. By action or suit ; 4. By statute. I. iicmttrj; b« Bfstvrss. 222. The remedy by distress is by the common law incident to a rent ser- vice, but in case of a rent-charge, it must expressly be provided for by the deed.(m) Under this head may be considered — 1. Who may distrain; 2. What may be distrained ; 3. Manner of making a distress and proceedings thereon ; 4. Place where distress is to be made. See further, as to distress, post, Injuries to Things real and their Remedies. a. fVho may distrain. 223. If a man seised in fee makes a gift in tail, or a lease for life or years, or at will, saving the reversion to himse]f,(2) with a reservation of rent or other services, the law gives *the donor or lessor, without any r-=i:225"l express provision, remedy for such rent or services, (>i) and this L my Lord Coke calls a rent distrainable of common right ;(o) but if the donor (m) See ante §§ 151, 152. (n) Lit. s. 214. (o) 1 List. 142, a., citing H. 4, 15 ; see also Bro. Distress, 78; Moor, 36 ; Cro. El. 637. (1) This remedy generally exists in the U. S., though there are some exceptions. 3 Kent's ("om. 472. (2) Ante, 170, n. 1 ; Prcscott v. Deforest, 16 Johns. 159. 168 CRABb's LAW OF REAL PROPERTY. or lessor do not reserve the reversion, he cannot distrain of common right ; therefore if a lessee for years assigns his term, reserving to himself a rent, he cannot enforce the payment of such rent by distress, (1) because a rent so reserved was not distrainable for at common law, and not beinsr a rent- seek, it did not fall within the 4 G. 2, c. 28, s. 5, which gives such remedy for a rent-seek. (^;) So, if termor lease for remainder of term,{q^ and if a man seised in lee or for life of a rent-charge, after arrearages incur, grant over the rent to another, he cannot distrain for the arrearages, because they are by the grant divided from the freehold •,{r\ but this is to be understood with some exceptions, as in case of rent granted by one coparcener to another for equality of partition, the grantee may distrain of common right, though she has no reversion, (s) lest she should be without remedy ;(^) and so in the case of a donor ;(<) but a party may reserve to himself a power of distrain- ing,(M) and a tenant from year to year, underletting from year to year, has a sufficient reversion entitling him to distrain. (x) 224. A bailiff who distrains must show in whose right he does so.fy) An authority to tenants to pay rent to J. S., whose receipt shall be their discharge, does not entitle him to distrain, although he receives the rent for his own benefit. (z) r*227~l *225. After the attornment of the tenants a receiver may distrain L -"in his own name and on his own authority, without any special leave of the court ; but before attornment he must distrain in the name of the person having the legal estate ;(«) and if there be any doubt as to who has the legal estate, the receiver must in that case make application to the court for an order to distrain. (6) So, if the owner be in possession, the receiver cannot distrain, but must apply to the court for an order directing the owner to give up possession to the receiver ;(f) so, if rent be in arrear for more than a year, a receiver cannot distrain without an order of the court. (rf) 226. Coparceners are considered in law but as one heir ;(e) therefore, they, as a rule, must join in making a distress ;(y) and one of two coparce- ners cannot make an avowry for a moiety before partition, although they have several inheritances ;(/) after partition they or their grantees may avow severally ;(^g) so, before partition, one of several co-heirs may distrain for (/)) V. Cooper, 2 Wils. 375 ; recognised in Parmentcr v. Webber, 8 Taunt. 593 ;» S. C, 2 J. B. Moore, 656. (q) Preece a. Corrie, 3 Bing. 24 ;'' S. C, 2 M. «fc P. 57 ; recognised in Pascoe v. Pascoe, 3 Bing. N. C. 905.c (/■) Ogncll's case, 4 Co. 50 ; S. C, cited Vaugh. 40. (s) Litt. s. 262. (0 1 Inst. 169, b. (m) Id. 47, a. (z) Curtis V. Wheeler, M. & M. 493;' S. C, 4 C. & P. 196.^ (y) Bro. Distress, 78. (z) Ward v. Slicw, 9 Bing. 608 ;f S. C, 2 M. & So. 756. {a) Hughs V. Hugiis, 3 B. C. C. 85; S. C, 1 Vcs. Jun. 161 ; and see 1 BaU and Bca. 483. (b) Pitt V. Snowden, 3 Atli. 750. (c) Griffiths V. Griffiths, 2 Vez. 400. (d) Brandon v. Brandon, 5 Madd. 473. (e) 1 Inst. 164, a. (f) Stedmxn v. Pago, 1 Salk.390; S.C. 5 Mod. 141 ; Comb 317; S. C. nom. Stcdman T. Bates, 1 Ld. Raym. 64. («-) Buttlcr and Baker's case, 3 Co. 22, b. (1) Ege V. Ego, 5 W. 134. «4 Eng. Com. Law Reps. 214. i-lS Id. 353. ^32 id. 374. 1 1 .: (n) Whitlcv V. Roberts, 1 M'Clel. & Y. 107; see also Doe v. Mitchell, 1 «. & B. 11 ,' S. C. 3 J. B. Moore, 229 ; Powis v. Smyth, 5 B. & A. 850 ;< S. C, 1 D. & K. idO. (0) Willes V. Fletcher, Cro. El. 530. (/;) Litt.ss. 315, 316. {,1) Wallace v. M'Laren, 1 Man. & Ryl. 516.i (r) Ex parte Smyth, 1 Swanst. 346, n. (1) Unless there be a joint lease, in which case they may join. Jones v. Guidrim, 3 W. & S. 534. 86 Eng. Com. Law Reps. 203. H5 Id. 73. '5 Id. 4. ''7 Id. 279. a7 Id, 273. 170 crabb's law of real property. 230. At common law if a husband seised in fee, or in tail in right of his 'wife of a rent-charge, did not recover during his wife's life arrears which became due previously to their marriage, he could not after her death compel payment of them ; but now, by the 32 H. 8, c. 37, he or his personal repre- sentatives may distrain for the same ;(s) and it seems that copyhold lands charged with a rent are within the provisions of the act ;(/) it seems how- ever that leases for years are not within the statute, (t<) but if the wife's term be demised for years, the reversion is then in the husband, and he may distrain. (.r) 331. A mortgagee after giving notice of the mortgage to the tenant in possession, is entitled to rent in arrear at the time of the notice, and to what accrues due afterwards, and may distrain for the same, if the lease under which the tenant holds have been made before the mortgage ;(?/) but where the lease has been made by the mortgagor alone after the mortgage, then the mortgagee has no remedy but by ejectment, and cannot distrain ;(^z\ and a mere recognition by the mortgagee of the tenant in possession as his tenant will not enaijle him to distrain.(«)(l) ^ ^ *Where an annuity is granted out of an estate, and the grantor, L J to secure the payment, vests the estate in trustees for a term to the use of the annuitant, the latter may distrain for the arrears. (6) 232. As a guardian may make leases of the infant's land in his own name, so he may like other persons distrain in his own name.(c) Com- mittees of lunatics, like receivers, must act under the directions of the Court of Chancery. See Bradby on Distresses, by Serjeant Adams, 63 ; Shelford on the Law of Lun. 180. 233. At common law the personal representatives of a man seised of a rent in fee-simple, fee-tail, or for life, could not distrain for arrears of rent (s) See 4 Co. 51 a, («) Appleton V. Dolly, Yelv. 135; but sec Gilb. Ten. 187; Bull. N. P. 57; 2 Watk. Cop. 182. (u) Meriton v.Gilbee, 8 Taunt. 159 ;>=> S. C, 2 J. B. Moore, 48; Martin v. Burton, B. 1 & B. 27y ; overruling Powell v. Killick, Bull. N. P. 57 ; and see Prescott v. Boucher, 3 B. &. Ad. 862 ;n .Tones v. Jones, Id. 067." (x) Wade v. Marsh, Latch. 211. (y) Moses v. Gallimore, 1 Douffl. 279. ' (z) Evans v. Elliott, 9 Ad. & E. 342.' See also Pope v. Biggs, 9 B. & C. 245.P (tf) Brown v. Stoney, 1 Man. & Gr. 1 1 7 ;t S. C, 1 Scott, N. S., 9. (Jb) Fairfax v. Gray, 2 Bl. 1326. (c) Shopland v. Rydler, Cro. Jac. 55 ; Bredell v. Constable, Vaugh. 179. (1) The right of a mortgagee to distrain, is recognised very generally in the United States. NcwcU v. Wright, 3 Mass. 152. Soudcrs v. Vansyckle, 3 Halst. 313; though in Connecticut the tenants, it appears, first must attorn. Magill v. Hinsdale, 6 Conn. 469 ; Babcock v. Kennedy, 1 Verm. 457 ; and the same distinction between a lease made before and after the mortgage is recognised on the ground that no privity exists. M'Kercher v. Hawley, 16 John. 292 ; Souders v. Vansyckle, 3 Halst. 212 : Price v. Sanderson, 1 Green. Ch. Rep. 517. But even then if the tenant consent, to avoid an eviction, it wil Ibe a valid payment, id. ; and Smith v. Shepherd, 15 Pick. 149, and Jones v. Clark, 20 John. 60. But in Pennsylvania it is believed this doctrine is not recognised; Meyers v. White, 1 Raw. 355 ; for until entry the mortgagee has but a lien. Rickert v. Madeira, id. 325. "Eng. Com. Law Reps. iv. 57. "Id. xxiii. 197, 202. "Id. xxxvi. 159. pJd. xvii. 368. ■ild. xxxix. 372. RECOVERY OF RENT. 171 Incurred in the lifetime of a testator or intestate, but this power was given them by the 32 H. 8, c. 37 ; but the statute applies only to cases where the owner of the rent, if he had lived, nn'ijht have distrained, and therefore when the rent was in arrcar, and the owner had granted away his interest before his death, his executor was held to have no remedy for such arrear- ages. (r/) If a man made a lease for life or a gift in tail reserving a rent, this was a rent-service within the statute, but it was doubtful, whether if a person, seised in fee of lands, made a lease for years, reserving rent, his executor or administrator could not under this statute have distrained for arrears of rent incurred in his lifetime ; and in the case of Prescolt v. Boucher(f) it was decided in the negative, but by the 3 & 4 W. 4, c. 42, s. 37, executors and administrators are authorised in such cases to distrain. See Dig. p. ii. tit. Executors and Administrators. 234. A corporation aggregate cannot distrain in their "own person r^oqi-i but by their bailiff, and this it seems must be done by deed. (A >- ' -' The queen may reserve a rent out of a franchise or matter incorporeal as well as out of lands, and may distrain for it on any other lands of the tenant not subject to the rent, but not in such other lands of the tenant as are let by tenant, or extended ; and by the 22 C. 2, c. 6, the grantee of a farm rent has the same power of distress as the queen had.(g') b. TFhat Things may he distrained, or othertvise. 235. As a rule, all the moveable chattels of a tenant may be distrained for rent-arrear,(l) but to this rule there are many exceptions and on various grounds, yet such exceptions are fewer now than formerly. First. A thin"- to be distrainable must be somethinof in Avhich a man can have a valuable property, and therefore it is said in the books that there can be no distress of dogs, deer, conies, and all other animals ferse nahirae; but this rule is held to be too general, for as to dogs, "it is clear now that a man may have a valuable property in a dog; trover has been several times brought for a dog, and great damages have been recovered,"(/j) and the legislature has made it penal to steal dogs. See Dig. p. i. tit. Larceny. As to deer it has been expressly decided that when kept in an inclosed ground for the purposes of sale or profit they may be distrained. (i) 236. In the next place, things fixed to the freehold, as doors, windows, ((/) Ogncll's case, 4 Co. 50 ; 1 Inst. 162, a. (p) Sup. (/) Cro. El. 815; Roll. Abr. 514. (e) Attorney-General v. Coventry (Mayor), 1 P. Wms. 306. (//) Per Willis, C. J., Davics v. Powell, Willcs, 48; see also Binstead v. Buck, 2 Bl, 1117. (i) Davies v. Powell, sup. (1) Russell V. Doty, 4 Cow. 576 ; Kessler v. M'Cofiachy, 1 Raw. 4.35 ; or a nejrro of a stranger accidentally on the premises. Bull v. Horlback, 1 Bay, 301. But if the tenant quit possession, and sell liis goods to a succeeding tenant, tlicy cannot be distrained for tlie arrears due by the former tenant. Clifford v. Beams, 3 W. 246. The rule of the common law has been altered in Kentucky, 2 Dana, 213, and in Virginia, 1 Lomax, Dig-. 551, and the remedy confined to the goods of the tenants. 173 crabb's law of real property^ and the like, are not distrainable ;(1) for what is part of the freehold cannot be severed from it without detriment to the thing itself in the removal, and ^ -, as distresses *were considered as pledges, which were to be restored L -'to the owner in statu quo, such things once removed, could not have been so restored. Besides, what is fixed to the freehold is part of the thing demised, and the nature of a distress was not to resume part of the thing itself for the rent, but only the inducta and illata upon the soil or house. (A;) On this principle an anvil in a smith's shop, and a millstone in a mill are privileged from distress, and a temporary removal of the anvil out of the stock, or the millstone out of the mill, for the purpose of its being picked, does not destroy the privilege. (/) So, for the like reason, corn growing was before the 11 G. 2, c. 19 (see Dig. p. ii. tit. Distress) not distrainable, and so trees, shrubs, and plants growing in a nursery ground cannot be dis- trained ;(m) in this latter case the exemption is in favour of trade, see infra, § 239. 237. Cattle on a common were not distrainable before the 11 G. 2, c. 19 ;(«) but cattle of a stranger trespassing on the land of a tenant may be distrained, although the owner make fresh suit and the cattle be not levant and couchaat ;[o) so, a lessor cannot distrain a stranger's cattle, which get into the land whence the rent issues, through defect of fences which either the landlord or the tenant is bound to repair.(jo) If the landlord come to distrain, and the tenant, seeing him, drive the cattle off' the land, the landlord may follow the beasts, and distrain them out of the premises if he had once a view of the cattle on his land ; but if the beasts go off the land of themselves, he cannot distrain them afterwards, (g-) _^ , though if the distrainor once enter the premises *to distrain the L -• cattle, it seems that they cannot afterwards be driven off" to prevent a distress. (}■) Cattle which are upon the land by way of agisting may also be distrained for rent;(s) so, where beasts were put into a field to graze for the night, it was held that the landlord might distrain them for rent due out of the lands where they were pat, although they had been put in with his consent, such consent not beincr deemed a waiver of his ri^-ht to distrain unless it had been so expressly agreed, and being but a parol agreement, it could not alter the oricrinal contract between the lessor and lessee, from which the power to distrain arose ;(^) but the owner of the cattle was afterwards (t) 18 E. 3, 4 ; 1 Inst. 47 ; 2 Inst. 82 ; 2 Mod. 61 ; Gilb. Distr. 42. Q) 14 H. 8, 25 b. (;«) Clark v. Gaskarth, 8 Taunt. 431 ;p S. C, 2 J. B. Moore, 491, recognised in Clarke V. Calvert, 3 J. B. Moore, 96. (n) Sup. (0) 7 H. 7, 1 b. 2, a. ; 15 H. 7, 17 b. {p) Dy. 317 b. 318 a. \q) 1 Inst. 161, a. (r) Clement v. Milner, 3 Esp. 95. (s) 1 Roll. Abr. 669. (t) Fowkes v. Joyce, 3 Lev. 260 ; S. C, 2 Vent. 50 ; 2 Lutw. 1161, (1) Cresson v. Stout, 17 Johns. 106. Vause v. Russel, 2 M'Cord, 329 ; but where the fixture? arc severed by the tenant (not for a mere temporary purpose,) they become liable as other chattels. Riynolds v. Shuler, 5 Cow. 500. pEng. Com, Law Reps. iv. 154. RECOVERY OF RENT. 173 relieved in equity on the ground of fraud in the landlord, who had consent- ed to their being put in, that he might distrain thein.(M) 238. Again, beasts of the plough and implements of husbandry and tools by which a man gains his livelihood are not distrainable ; but these are only conditionally exempt, the former, if there are other moveable chattels to the amount of the rent and expenses ;(.f) the latter, if they are in actual use, and there is sufficient distress, as in the case of a stocking-frame, (y) or a loom ;(z) but where a threshing-machine was not in use, and there was not evidence of other goods being on the premises, this was held not to be privileged from distress.(«)(l) Some other things, as a horse on which a person is riding, or an axe in the hands of a person cutting wood, have been held to be exempt, on the additional ground, that the exercise »of the power of distress might (-*234-| in such cases frequently lead to a breach of the peace. (6)(2) L J 239. In the next place, for the benefit of trade, goods sent to a tradesman for the purpose of being worked upon in the way of his trade, as cloth to a tailor, yarn to a weaver, a horse to a smith, and the like, are not distraina- ble ;(c) so, a beast sent to be slaughtered ;(f?) so, goods in the hands of a factor are privileged. (e)(3) (m) lb.; and see 2 Wms. Saund. 290, n. (7\ {x) 1 Inst. 47, a. b. ; Piggott v. Birtlcs, 1 M. &, W. 441. (y) Simpson v. Hartopp, Willes, 5] 3. Iz) Gorton v. Falkner, 4 T. R. 5fi5 ; Roberts v. Jackson, Peake's Add. Ca. 37. («) Fenton v. Logan, 9 Bing. 676 ;» S. C, 3 M. & So. 82, recognising Wood v. Clarke, 1 Cr. & J. 484. {h) 1 Inst. 47, a. ; see also Webb v. Bell, 1 Sid. 440, cited in 4 T. R. 569 ; Storey v, Robinson, 6 T. R. 138. (c) Bro. Distress, 99 ; 1 Inst. 47; 3 Bulst. 270; 1 Roll. Abr. 668 ; Musprat v. Gregory, 3 M. & W. 677 ; S C, 2 Gale, 158. {(/) Brown v. Slicvil or Sberil, 2 Ad. & E. 138 ;'• S. C, 4 Nev. (1) Russel V. Doty, 4 Cow. 576. Hamilton v. Reedy, 3 M'Cord, 40. Pierce v. Scott, 4 W. & S. 344. (2) Or goods of a boarder at a lodging-house. Riddle v. Whelden, 5 Whart. 9. *25 Eng. Com. Law Reps. 36. RECOVERY OF RENT. ITS make a distress after dark. Sed secus as to distress for damage feasant, see post, Injuries to Things real. *As rent is not due until the last minute of the natural da)'^ on p^oqei which it is payable, (.r) it follows, that a distress for rent-arrear can- L -I not be made on that day.(y)(l) At the common law, if a lease was made at Michaelmas for a year, reserving rent on the feasts of the Annunciation and St. Michael, the lessor was deprived of his remedy by distress for the rent due at Michaelmas, because he could not distrain at the expiration of the term ;(z) but if by the custom of the country or by express stipulation between the parties, the rent be payable on the day on which the tenant enters, the landlord may- distrain for it on that day ;(o)(2) and so it seems by the usage of a parish, a quarter's rent may be distrained for before the end of the quarter :(b) and by the 8 A. c. 14, s. 6, the landlord may distrain for such arrears withia six months after the determination of the term. See Dig. P. ii. tit. Dis- tress, P. iii. tit. Landlord and Tenant. And where by the custom of the country a tenant may leave his away-going crop in the barns, it has been held that the landlord may distrain after six months have expired from the determination of the term ;(c) and where the tenant dies before the expiration of the term and his personal representative continues in posses- sion during the remainder of the term, the landlord may distrain within six months after the end of the term for rent due for the whole term •,{d\ and the statute applies to cases only in which the tenancy has been determined by lapse of time, or perhaps by notice to quit, and not to cases where it has been put an end to -by the wrongful disclaimer of the tenant. (e) 3^00-7-1 *Distresses for the recovery of rent may by the 3 & 4 W. 4, c, 27, L -' s. 2, be made at any time within twenty years next after the time at which the right to make such distress has accrued, and by s. 42 of the same act no arrears of rent can be recovered by distress for more than six years. (/) d. Place u'here Distress may he made, or otherwise, 243. The distress must be made upon the land from which the rent issues, and therefore where the exclusive use of the land of the river Thames oppo- site and in front of a wharf, between high and law water mark, as well when covered with water as dry, for the accommodation of the tenants of the {x) See ante, s. 194. (?/) 4 H. 6, 31 ; 21 H. 6, 40 ; and see Harg. Co. Litt. 47, b. n. (6). («) 1 Inst. 47, 1).; 1 Roll. Abr. 670, pi. 10. («) Buckley v. Taylor, 2 T. R. 600. (/;) Tracey v. Talbot. 6 Mod. 214. (c) Beavan v. Dolahay, 1 H. Bl. 5. (rf) Braitliwaite v. Cooksev, 1 H. Bl. 465. Sec also Boraston v. Green, 16 East, 81 ; Knight V. Bfnnett, 3 Bing. SGG." {e) Doe V. Williams, 7 C. &, P. 323.>' Sec further, Nuttall v. Staunton, 4 B. & C. 51.< Taylerson v. Peters, 7 Ad. & E. 110 ;i S. C, 2 Nev. &, P. 622. Also Dig. P. ii. tit. Dis- tress; P. iii. tit. Landlord and Tenant. (/) Paget V. Foley, 2 Bing. N. C. 67D ;<' S. C, 3 Scott, 120 ; 2 Hod. 32. See Dig. P. iii. tit Limitations. (1) Garro v. Hart, Hard. (Ky.) 297. (2) The same principle is recognised in Russell v. Doty, 4 Cow. 576 Peters v. NeWi kirk, 6 Cow. 107. Williams v. Howard, 3 Munf. 277. Beyer v. Fcnstermacher, 2 Whart. 95. •13 Eng. Com. Law Reps, 9. '32 Id. 525. »10 Id. 276. ■'34 Id. 45. <=29 Id. 457 176 crabb's law of real pnaPERXY. \vharf, was demised as appurtenant to the wharf, but the land itself between high and low water was not demised, it was held that the lessor could not distrain for rent-arrear, barges, the property of the tenant, Ij'ing in the space between high and low water mark, and attached to the wharf by ropes. (^)(1][ 244. If the lord distrains out of his fee, in land not holden of him, the tenant may make rescous unless in special cases ;(/t) but the queen by her prerogative may distrain upon other land than her own, and is especially excepted by a clause in the Statute of Marlbridge.(z) So, if the lord come to distrain within his fee, and the tenant seeing him, drive the cattle ofi'the land, then the lord may follow the beasts and distrain them out of the pre- mises, if he had once a view of the cattle on his land ;(y) but if the lord had no view of the cattle within his fee, though the tenant drive them off purposely, or if the cattle of themselves after the view go off the land, or if r**>^8T ^^^ tenant after the view remove *lhem for any other cause than to L J prevent the lord's distress, then the lord cannot distrain them ;(/:) but now by the 11 G. 3, c. 19, the landlord is empowered in case of frau- dulent removal of goods, to distrain them, wherever found ; the removal however, to bring the case within the statute, must take place after the rent becomes due, and must be secret, not made in open day ;(^)(2) and the statute applies to the goods of the tenant only and not to the goods of a stran- g-er,(m)(3) or a lodger. (n) The queen's highway was also by the ancient common law considered as a place privileged from distress, and this is affirmed by the Statute of Marl- bridge. 245. A distress for a rent-service may be taken in any part of the land holden, or for a rent charged or reserved upon a lease upon any part of the land out of which the rent issues, and if a house be upon the land demised or charged, a distress may be taken in the house, if the outer door be open ;(o) and although the outer door can in ro €ase be broken open, yet the person (^) Capcl V. Buszard, 6 Binjr. 150 •;> S. C, 3 M. & P. 480 ; 2 Man. & Ryl. 197 ; 3 Y. & J. 344 ; overruling S. C, 4 Bing. 137 ;'= V2 J. B. Moore, 339 ; 2 C. & P, 541. (A; 1 Inst. lGl,a. (i) 2 Inst, 132. (j) 1 Inst. IGl, a. (A-) 1 Inst. 161, a. (/) Watson V. Main, 3 Esp. 15 ; Rand v. Vaughan, I Bing. N.C. 767/' [in) Thomson v. Adams, .5 M. &, S. 38. («) Postman v. Harrell, 6 C. &. P. 225.* See also Bach v. Meats, 5 M. & S. 200 ; Brooke v. Noakcs, 8 B. &. C. 537 ;f Bromley v. Holden, 1 Moo. &, M. 175;? and Dig, p, iii. tit. Landlord and Tenant. (0) 1 Roll. Abr. 671 ; Com. Dig. tit. Distress (A, 3). (1) Pemberton v. Van Rensselaer, 1 Wend. 309. (2) This st;itnte remedying the defect in the common law, has been re-enacted in many States. The rule, that the removal mue^t have been after the rent became due, under the Pennsylvania act of 1782, was recognised in Grace v. Shively, 12 Serg. & Rawlc, 217, This has been remedied by the act of 182.">, and it is immaterial when the goods were removed, provided it was fraudulent as to the landlord. The former rule prevails in S, ('., Brown v. Duncan, 1 Harp. 337. The New York statute is said to extend the remedj further than the English statute. 3 Kent Com. 481. Reynolds v. Sholer, 5 Cow. 323. (3) Adams v. La Comb, 1 Dall. 440. ' Eng. Com. Law. Reps. xxix. 36. "^Td. xiii. 377. ■ Id. xxvii. 568, ^d. xxv. 369. fid. XV. 289. eld. xxii. 282. RE COVE RV OF RENT. 177 distraining may justify breaking- open an inner door or lock to find any goods which are distrainable ;(/)) so, gates or inclosures cannot be broken open or thrown down to take a distress ;(y) except now under the 11 G. 2, c. 19, s. 7, in the case of a fraudulent removal of goods, see Dig. D. iii. tit. Landlord and Tenant. So, where a person taking a distress has been violently eject- ed, he may justify breaking open the door in order to complete the taking •,(^r') and where a landlord, who occupied *an apartment over a mill de- ^qoq-i mised to his tenant, from which it was separated onl)!- by a boarded L J floor without any ceiling, took up the floor and entered through the aperture to distrain for the rent, held that he was no trespasser ; and where a man can get in without a trespass he may lawfully distrain. (a- ) If the demises are several there must be separate distresses upon the several premises subject to each distinct rent ; forno distress on one part can be good for both rents, although the several premises are demised to the same tenant ;(/) but if a rent-charge issue out of land in the possession of several tenants, a distress may be taken upon the possession of one for the whole rent, for it issues out of each part ;(«) so, where lands, lying in dif- ferent counties, are held under one demise at an entire rent, the rent may be lawfully taken in either county for the whole rent in arrear.(a:j e. Planner of making a Distress, and the Proceedings thereon. 246. The distress may be made by the landlord himself, or by his autho- rized agent or bailifr,(l) in the former case if the landlord come into the house, and seize upon any article as a distress in the name of all the goods in the house, it will be a good seizure of all ;(»/) and any declaration on the part of the landlord will be sufficient to commence a distress, as where he declared on the premises " that nothing shall be removed until my rent is paid," it was held, that in consequence of such declaration the landlord had a right to take and bring back an article which had been removed ;(2) so, where a broker went to the tenant's house, and pressed for payment r*94nn of rent alleged to be due and a sum for the *expenses of the levy, L J but touched nothing and made no inventory, and the tenant then paid the rent and expenses under protest, it was held, in an action against the land- lord for an excessive distress, he could not say there had been no distress ;{a\ so, where the landlord's agent went upon the premises and gave a written notice that he had distrained certain goods, and unless the rent was paid or the goods replevied, that they would be sold in five days ; this was held to (p) Brown v. Dean, Bull. N. P. 881 ; Browning v. Dann, Ca. temp. Hardw. 168. (9) 1 Inst. 161, a. (r) VVoodf. L. .t T. 329, 4th ed., by Harr. Eng. Com. Law Reps. xv. 346. 178 crabb's law of real property. he a sufficient seizure, although he had left no one in possession ;(6) but where a broker's man left the premises, of which he had possession, it was held, that the landlord had no right six days after to break into the house and take the goods away.(c) A landlord is prima facie liable for the act of the bailiff if he conduct the distress irregularly, unless he repudiates the act as soon as he is made ac- quainted with it;((/) and to justify the landlord in calling in the aid of a police officer, he must shew that he had reason to apprehend violence. (e) 247. Where the bailiff" distrains he must do so under a written autho- rity(l) signed by the landlord, which is termed a ivarrcmt of distress, (for the form of which see 2 Prec. in Conv. tit. Distress, p. 302) ; and in the case of coparceners this must be signed by all :(/) but one of several joint- tenants may sign a warrant of distress, and appoint a bailiff' to distrain for rent due to all, if the others do not interfere ;(§•) but where a change has been made in the name of the person appointed to distrain it will not render the warrant void if it appears to have been done with the concurrence of the landlord ;(//) so, a man may distrain without *any express autho- L -' rity previously given, provided he afterwards obtains the assent of the landlord to what he has done ;(i) and a subsequent agreement to a dis- tress, given by the landlord to the person making it, is as much an authority, as if he had previously appointed him bailiff' to distrain ;(A') and Avhen in replevin it is proved that the landlord employs the attorney to defend the broker, that is sufficient evidence of the broker's authority to distrain in the absence of any warrant. (/) 248. At common law a man might have driven a distress whither he pleased, (m) but this evil was remedied first by the Statute of Marlbridge prohibiting a distress to be driven out of the county; afterwards, still fur- ther, by the 1 & 2 P. & M. c. 112; 11 G. 2, c. 19, s. 8; and 5 & 6 W. 4, c. 59, see Dig. P. ii. tit. Distress ;(2) yet if the tenancy is in one county and the manor in another, the lord may drive the distress taken in the tenancy into the manor in the other county ;(n) ; so, where the lands are held under one demise, at one entire rent, a distress may be lawfully taken in either county, and chasing a distress over, where the counties adjoin, is (h) Swann v. Falmouth (Earl), 8 B. & C. 456 ;' S. C, 2 Man. & Ryl. 534. (c) K'usscU V. Rider, 6 C. & P. 416.'' ('/') Hurry v. Rickman, 1 Moo. &, Rob. 126. (e) Slddmore v. Booth, 6 C. &, P. 777." ( f) Bailer's case, 1 Leon. 64. (^) Robinson v. Hoffman, 4 B\ng. 562 ;"■ S". C, 1 M. &. P. 474 ; 3 C. & P. 234. (A) Toplis V. Grane, 5 Bing. N. C. 636 ;■> S. C, 7 Scott, 620. (t) Gilb. Disf.r.32. (k) Bro. Abr. tit. Traverse, 3 ; Lamb v. Mills, 4 Mod. 378 ; Trevillian v. Pine, 11 Mod. 112. (/) Duncan v. Meicleham, 3 C. & P. 172." (m) 2 Inst. 106. (n) Keilw, 50; Bro. Distress, 33. (1) This is not required in Pennsylvania. Franciscus v. Reigart, 4 W. 98. Jones v. Gundrim, 3 W. & S. 531. (2) He may impound on the premises. Woglam v. Cowperthwait, 2 Dall. 68. M'Kin- ney v. Reeder, 6 W. 34. iEng. Com. Law Reps. xv. 264. ^Id. xxv. 463. 'Id. xxv. 646. "Id. xv. 73. •Id. XXXV. 256. «Id. xiv. 257. RECOVERY OF RENT. 179 a continuance of the taking ;(o) if the hundred in which the cattle were dis- trained be in one county, and the hundred into which they were driven be in another, the venue may be laid in either county. (/)) By the 1 & 2 Ph. & M. c. 12, no cattle can be driven out of the hun- dred, &c., except to a pound overt in the same shire, and the 5 & 6 W. 4, c. 59, makes it obligatory on the distrainor to provide food for impounded animals, and authorizes him to recover his expenses ;(7) and under this act it has been held that distrainors are bound to see that the pound to whiciT they take the distress is in a fit *state to receive it ; and it is no defence p#242"l for abusing the distress by putting the animals in a muddy pound, L -• that the place was the manor pound. (r) 249. At the common law distresses for rent-arrear could not be sold, but only detained as pledges for enforcing the payment of such rent ; but the 2 W. & M. sess. 1, c. 5, s. 2, provides that at the expiration of five days after notice of distress to the tenant, and no replevy of the same, the dis- trainor may cause the same to be appraised and sold.(l) Under this Act it has been held, that five times twenty-four hours must elapse before the sale ;(s) so, the five days are reckoned inclusive of the day of sale,(^)(2) and a reasonable time after the expiration of the five days is allowed to the landlord for appraising and selling the goods ;(m) but if they remain longer, without the tenant's consent, distrainor will be deemed a trespasser ;(a;) so, if the goods be not sold after the five days, the tenant may replevy them, for at common law the distress was at all times replevisable.(ii/) On other points of construction of this and the other statutes relating to distresses, see Dig. P. ii. tit. Distress; and as to the forms of notices, and other forms of pro- ceeding in distresses, see 2 Prec. in Conv. tit. Distress ; and as to pound- breach and rescous, and also as to unlawful and irregular distresses, see post, Injuries to Things Real and their Remedies. 250. On the same principle that distresses were pledges, the distrainor was not and still is not at liberty to deal with a distress as his own, there- fore he cannot make use of the distress, as to work a horse and the like, and it was even thought that he could not do anything for the owner's benefit, as to milk a cow, without his consent ;(?) but this was never settled as law;(a) yet it has been held, that *where a man distrained barrels p*243"l of beer, and drew beer out of one of them, he was a trespasser ab ^ initio as to that barrel only.(&) (o) Walter V. Rumball, 1 T.d. T?aym. 55 ; S. C, 12 Mod. 76 ; 1 Salk. 247. (p) Pope V. Davis, 2 Taunt. 252. (q) See Dig. sup. (r) Wilder v. Speer, 8 Ad. & E. 517 ;p S. C, 3 Nev. & P. 536. (s) Harper v. Tassvvcll, 6 C. & P. 166.1 {t ) Wallace v. King, 1 H. BI. 1 3. (u) Pitt v. Shew, 4 B. & A. 208.'- {x) Griffin V. Scott, 2 Str. 717 ; S. C, 2 Ld. Raym. 1424. iy) Jacob V. Kino;, 5 Taunt. 451.^ (z) 1 Ventr. 37. {a) Cro. El. 7S3. (h) 6 Mod. 216. (1) The sale cannot be made without this notice or he will be a trespasser ab initio. Kerr V. Sharp, 14 S. ifc R. 402. (2^ In Pennsylvania it is reckoned exclusive of the day of distress; and if t?unday be the last of the five days it is not to be counted. M'Kinley v. Reader, 6 W. 37. p35 Eng. Com. Law Reps. 450. <.25 Id. 336. '6Id. 403, «1 Id. 154. 180 CRAB b' 3 LAW OF REAL PROPERTY. So, if a man distrains dead goods, as utensils of a house or such like, which may take damage by wet or weather and the like, he ought to irai- pound them in a house or other pound covert within the proper distance, as prescribed by the 1 & 2 Ph. & M. ;(c) for if he impounded them in a pound overt he ousfht to answer for them.(r/) If a man distrains cattle and puts them in a pound overt, it was said the owner ought to keep them at his peril, for it was lawful for him to come there for this purpose ; but if put in a pound covert or close, there the distrainor ought to keep them at his peril, and yet he should not have any satisfaction for it.(e) II. 3»cmcTrn i)» Hut id. 251. At common law there was a material difference between the remedy by distress, and the remedy by re-entry, for in the case of distress for non- payment of rent, no previous demand of the rent in arrear was necessary; but where the remedy was by re-entry, there must have been an actual demand made previous to the entry, and all the formalities in making the demand as to time, place, amount of rent and other particulars, must have been strictly observed ;(/)(!) unless by consent of the parties the previous demand was dispensed with, for by "special consent of the parties re-entry may be for default of payment of rent without demand of it ;"(g") and a proviso in a deed for re-entry for non-payment of rent, " although no demand thereof should be lawfully made," has been held in more than one case to dispense with any demand at all;(//) and this clause is commonly inserted in leases and annuity deeds. *In order to obviate the difficulties which attended making such [*24-4J (^p^and, it is provided by the 4 G. 2, c. 28,(2) that where one half year's rent is in arrear, and the landlord has right by law to re-enter for non-payment, he may without any formal demand or re-entry serve a decla- ration in ejectment ;(z) but the statute dispenses with the demand of the rent in those cases only where there is not sufficient distress, as well as six months' rent in arrear, it is therefore still necessary for the lessor to comply with all the formalities of the common law, before he can proceed on a clause of re-entry for non-payment of rent, if a sufficient dis- tress can be found ;(A') but an insertion in the proviso of the lease, that the (c) See Dig. sup. () Hool V. Bell, Ld. Raym. 172. • (c) 1 lust. 162 ; Turner v. Lee, Cro. Car. 471 ; see also Cro. El. 332. ((/) Mireton v. Gilbee, 2 J. B. Moore, 48. S. C. 8 Taunt. 159,' (e) 1 Inst. 62 ( f) Wright V. Smith, 5 E^p. 203. ig) Cutting v. Derby, 1 Bl. 1075. (h) Wilkinson v.CoUey, 5 Burr. 2634. ^4 Eng. Coin. Law Reps. 57. RECOVERY OF RENT. 183 the landlord to recover the double value. (z) But this statute has also been considered penal, and therefore that it ought to be construed strictly, and cannot be construed to extend to a tenant from week to week. (A;) Where the demise is for a time certain, as for one year, and no longer, a notice to quit is not necessary at the expiration of the year, to put an end to the tenancy ; but a demand of possession is necessary to entitle the landlord to double value, and the demand may be made after the determina- tion of the term, but the landlord will be entitled to double value only from the time of the notice and demand. (/) See further on the construction of this statute, Dig. P. ii. tit. Ejectment. 256. By the 11 G. 2, c. 19, s. 18, it is provided that when a tenant after having given notice to quit holds over, he shall be liable to pay double rent, which may be *recovered in the same manner as single rent, that is p*.24ft"l by distress, which is one point of distinction between the provision L J in this statute and that for the double value in 4 Geo. 2 ;(?n) so, a tenant by parol demise from year to year is within this statute and liable to pay double rent on holding over ;(m) so, if he gives parol notice ;(?n) so, there must be some fixed time specified in the tenant's notice to quit, a notice that a tenant will quit as soon as he can get another situation, is not sufficient to render him liable for double rent ;(n) and the notice must be such a one as would be binding on the tenant, so that the landlord might maintain ejectment. (o) Under the 4 G. 2, an action may be supported after a recovery of the premises in ejectment, there being no incongruity in bringing the two actions, for the action of ejectment is to recover the possession, and the action for double value is to indemnify the landlord for the wrong in holding over ;(;;) but it is otherwise in the case of a claim for double rent under the 11 G. 2, for this statute gives the landlord a right to distrain for it, which is a special remedy applicable only to the relation of the landlord : upon this statute therefore there would be an incongruity in applying the remedy for double rent after an action of ejectment which treats the person in possession as a trespasser.((^) See further on the construction of this statute, Dig. P. ii. tit. Ejectment ; and on the action of debt for the recovery of rent, see post, § 253. 257. Before the 11 G. 2, c. 19, s. 14, which gives the landlord an action on the case for use and occupation as a reasonable satisfaction for the lands, tenements or hereditaments held by the tenant, an action of assi(77ipsit would lie on a promise to pay a sum of money in consideration of a *per- r*.24q"i mission to occupy lands ;(/•) but as this is a real contract for which •• assumpsit will not lie, this difficulty was got rid of by considering the sum to be paid as a compensation due on the contract and not as rent, and the (i) Lake v. Smith, 1 N. R. 176. (fr) Lloyd V. Rosbee, 2 Camp. 453 ; See also Sullivan v. Bishop. 2 C. &. P.^SoD--^ (i) Col)b V. Slokes, 8 East, 4.58. [m) Tiiiimins v. Rawlinsan, 3 Burr, 1C03 (n) Farrance V. Eiking-ton, 2 Camp. 591. (0) Johnstone v. Huddlosto:ie, 4 B. & C. 922.* {p) Soulsby V. Nevinp-, 9 East, 310 ; See also Ryall v. Rich, 10 East, 48. ((/) Soulsby V. Nevinjr, sup. (»•) Dartnall v. Morgan, Cro. Jac. 598; Chapman v. Southwicke, 1 Lev. 204, wl2 Eng. Com. Law Reps. 170. »10 Id. 471. 184 crabb's law of real property. permission to occupy as not amounting to a demise ; for a plaintiff would have been nonsuited, if he produced in evidence in such action any parol demise or agreement with a reservation of rent.(s) Under this statute the landlord who has rent owing to him is allowed to recover, not the rent but an equivalent for the rent ; and if the demise be produced against him, it shall not defeat this action as it would have done before the Statute. (/)(1) Regularly this action lies where there is no demise or agreement under seal;(2) but in one case where a defendant held under an agreement which did not amount to a demise, it was decided that the action for use and occu- pation was maintainable, although the agreement was by deed ; where there has been an actual occupation, the action lies in respect of an incorporeal hereditament ;(i«) so, where there had been occupation under an agreement to take a lease of certain minerals, it was held not to be a mere license, but aright constituting an hereditament within the 11 G. 2 ;(x) so, where a lease for years expired at Midsummer and the tenant refused to give up possession, insistmg that he was entitled to have notice to quit, and after- wards continued in possession until Christmas, and paid rent to that time, when he tendered the keys of the premises to the landlord, which the latter refused to take ; this was adjudged not to be a holding over, but conclusive evidence of a tenancy from year to year, which enabled the landlord to maintain use and occupation for a quarter's rent due at Lady-Day ;(i/) *so, rent may be recovered in this action, notwithstanding the build- L J ing has been burnt down ;(s) so, the landlord may support this nction against the original tenant, although the premises are in the occupa- tion of an under-tenant ;(«) but if lands are let to A., and B. agree with the landlord to stand in A's place and pay rent, the landlord may afterwards sue B. for use and occupation, and B. cannot set up A.'s title as a defence to the (s) 5 Taunt. 25.> («i Naish v. Tatlock, 2 H. Rl. 323. (u) Bird V. Higginson, 2 Ad. & Ell. 696 ;" S. C, 4 Nev. & Man. 5t)5 ; 1 Har. & W. 61. (x) Jones V. Reynold^ 4 Ad. & Ell. 805 ;' S. C, 6 Nev. & M. 441 ; 7 C. &, P. 335. (y) Bishop v. Howard, 2 B. At C. lOO.' (z) Baker v. Holzapl'el, 4 Taunt. 45 ; see also Izon v. Gorton, 5 Blng. N. C. 501 ;<= Packer V. Gibbins, 1 G. &, D. 10. («) Bull v. Sibb, 8 T. R. 327. (1) It has been held that this action is at common law, indcpendcntlj' of the stat. of Geo. 2, without an express promise. Gunn v. Scovill, 4 Day, 228. Eppes v. Cole, 4 Hen. & Mun. 1 61. Roberts v. Tennell, 3 Munr. 253. Crouch v. Brilles, 7 J. J. Marsh. 257. In New York a statute similar in effect has been enacted, prior to which tiie action could not be maintained, except on an express promise. Fcathcrstonliaug-h v. Bradshaw, 1 Wend. 135. In Penn- sylvania, the 14th and 15th sections of the statute are in force : and tlie same point ruled in Pottv. Lesher, 1 Yeat. 578. It is immaterial that the premises be actually used by the tenant if he had a rig^ht and an opportunity of doing so. Grant v. Gill, 2 Whart. 42. Hemphill v. Flynn, 2 Barr, 144. Little v. Martin 3 Wend. 219. And a written contract not under seal may be given in evidence, and the price stipulated cannot be disputed. Williams v. Sherman, 7 Wend. 109. (2) It will not lie where there has been a demise by deed, even on an express assumpsit. Codman v. Jenkins, 14 Mass. 93—97; nor against an assignee of such lessee, Blume v. M'Clurken, 10 W. 380 ; nor against members of a partnership where the demise was by deed to one partner. Brook v. Evans, 5 W. 196. But if a tenant enter under an agree- ment to take a lease under seal and then refuse to accept, the action lies. Little v. Martin, 3 Wend. 219. »1 Eng. Cora. Law Reps. 6. ^20 Id. 177. ^31 Id. 184. JS Id. 41. j35 Id. 138. RKCOVERYOFRENT. 185 action ;(i) so, this action will lie where a parly has continuctl in possession after the expiration of his term;(r'Vl) unless there be a new agreement by the landlord to accept another person as tenant in his stead, (c)(2) and if the premises are in the possession of an under-tenant, the landlord may refuse to accept the possession, and hold the original lessee liable ;[(l) so, before the 6 G. 4, c. 16, this action lay against a tenant notwithstanding his bank- ruptcy .(e) 258. As to the cases to which this action does not apply, if a landlord accept of an under-tenant and distrain upon him for rent, he cannot after- wards proceed for use and occupation against the original tenant ;(y) so, where lands have been let to one who underlets to others, and the latter receive-notice to quit from the original landlord and one does in consequence quit, and the lands occupied by him remain unlet for a year, and are then let by the original tenant, the original landlord cannot recover in use and occupation for the rents of the unoccupied jjremises, as such circumstances amount to an eviction ;(^^'")(3) so, if the tenant, with the landlord's consent, quit in the middle of a quarter, the landlord 'cannot recover for the p^o;-,-. whole quarter, nor pro rata for that part of it during which the L -' occupation continued. (A) So, although executors and administrators cannot as a rule reject the term of their testator or intestate, yet where an administrator has merely taken possession of the premises and tried to let, but has made no profit of them, he cannot be charged for use and occupation ;(^) so, this action is not maintainable against a husband alone, if his wife held under a yearly ten- ancy before marriage, the rent being payable half-yearly, where part of such rent was due from the wife dum sola, and the remainder accrued after the coverture ;(/c) so, this action will not lie, where the title is in dispute, for the Courts will not try title by such an action. (/) This action is founded on contract and does not apply to an adverse or tortious holding ;(4) therefore the plaintiff, after recovery in ejectment of {h) Pliipps V. Sculthorpe, 1 B. & A. 59; sec also Matthews v. Sawell, 8 Taunt. 270;' Ibbs V. Richardson, 9 Ad. & Ell. 849.? (c) Christy v. Tancrcd, 7 M. & W. 127. (f/) Harding v. Crcthorne, 1 Esp. 57. (e) Boot v. Wilson, 8 East, 311. (/ ) Thomas v. Cook, 2 B. & A. 119. {g) Burn v. Phelps, 1 Stark. 94. (//) Grininian v. Lc^ge, 8 B. &. C. 324.'' (i) Remnant v. Bremridge, 2 J. B. Moore, 94. S. C. 8 Taunt. 191.i {k) Richardson v. Hall, 3 J. B. Moore, 307 ; S. C, 1 B. & B. 50. 8 Taunt. 45.k (/) Anon., Woodf. L. & Ten. 637, 4tli ed. by Har. &. W. (1) Abeel v. RadclifF, 13 .Johns. 297; 15 Id. 507. (2) But the party remains liable on his covenant ; debt however will not lie. Fletcher V. M'Farlanc, 12 Mass. 46. (3) A notice to quit by a purchaser at sheriff's sale of the landlord's estate is a rescission of the lease, a new contract must be proved; mere retention of possession is insufficient. Hemphill v. Tcvis, 4 VV. & S. 535. (4) Because that would be to determine a title to land in an action of assumpsit Boston V. Blnncy, 11 Pick. 9. There must cither be an express promise, which is evi- dence of a tenancy, to which case tlic action is confined, or an entry by the consent of the landlord, from which a tenancy is implied. An entry under a contract for purchase will not authorise such an imiilicd promise. Potc v. Leshcr, 1 Yeat. 578; Henwood v. Cheesmau, 3 S. & R. 500 ; BancroR v. AVardcll, 13 Johns. 483. Nor can it be sustained by an heir or administrator where a lease liad been made without authority by a former admin- istrator. Boyd v, Sloan, 2 Bailey, 311. f4 Eng. Com. Law. Rep. 101. f36 Id. 301. ^15 Id. 229. '4 Id. 66. M Id. 14. 186 crabb's law of real property. the premises, may recover in this action the rent up to the time of the demise in the ejectment, but not subsequently ;(?7i) so, the holding must be under a contract of demise, therefore where a parly was let into possession under a contract to purchase and the vendor failed to make a title, it was held that the vendor could not recover for use and occupation. (n) The remedy in this action is not co-extensive with the action of debt for rent ; the statute only furnishes an easy remedy in cases of actual occupa- tion, leaving other more complicated cases to their ordinary remedy. (o) Debt also lies for use and occupation, and is frequently substituted for the old action of debt for rent. This action of debt however is independent of the statu te.(/j) *This action will not lie for the use of premises let for immoral ['■252J pu^.poses;(^) but it will lie for the rent of a Jewish synagogue, there being no express law prohibiting such an establishment. (r) . SECTION V. ANNUITIES OR RENT CHARGES. § 259. An annuity, properly so called, is a yearly sum of money granted to another in fee-simple, fee-tail, for life or years, charging the person of the grantor only.(l) Where however it is made payable out of lands, and the land is charged, as it usually is, with distress for payment of the same, it is called a rent^charge ; but if both the person and estate be made liable, as they most commonly are, then it is generally called an annuity. [s"^{\) A corody or pension was an allowance or a right belonging to the crown to receive from the bishops a maintenance for his chaplains until they obtained a benefice, a right the exercise of which as it appears has fallen into disuse. (n A corody so far savoured of the realty that a house or land might be appendant to it.(?<) The subject of annuities embraces the following matters entitled to notice : 1. How an annuity is granted or created; 2. The estates in an annuity and the incidents thereto; 3. Apportionment of an annuity; 4. Recovery of an annuity. (m) Buck V. Wright, 1 T. R. 378. (r/) Kirtland v. Pounsett, 2 Taunt. 145 ; but sec contra, Howard v. Shaw, 8 M. & W. 118, and other cases, Dig. P. iii. tit. Landlord and Tenant. (0) Naish V. Tatlock, 2 H. Bl. 319. U, Stroud v. Rogers, 6 T. R. 62. (V) Girardy v. Richardson, i Esp. 13; Crisp v. Churcliill, 1 B. Ac P. 340. (»•) Israel v. Simmons, 2 Stark. 3.')6.' (s) Doct. & Stud. Dial. 2, 230 ; 1 Inst. 1 44, b. ; Finch, 1 61 ; Roll. Abr. 226. (0 Harg. Co. Litt. 97, a. n. (33.) C«j 1 Inst. 49, a. (1) Horton v. Cook, 10 W. 127, and to discharge the person a clear intent must appear on the face of the instrument ; '' to be paid, had, and issuing out of the following descrip- tion of property" is not sufficient. Id, '3 Eng, Cora. Law Reps. 380. ANNUITIES OR RENT CHARGES. 187 *i. ^t'm an ^nuuCtB tna^ tr fitantcti cr crcatrtr. [*253] (j 260. By wliat Conveyances, 261. Where Annuity is not Rent. () 262. Annuities under the 53 G. 3, c. 141. § 260, Where an annuity is made chargeable upon the lands of the grantor, it may be made, as a rent-charge, by bargain and sale, release, or any other conveyance now in use (see ante, § 159, as to how a rent-charge generally may be created ;) but if a man grants an annuity to another, and does not say for him and his heirs, this is determined by the death of the grantor ;(a.') sed secus of the grant of rent out of land, or a grant of a rent whereof a man is seised, because this charges the land and an annuity charges the person only, and cannot be limited to the heir except by express words.Tw) 261, In some cases where the grant of a rent is void as rent, yet it may be good as an annuity; as, if a rent be granted to be received out of an acre of land in A, and the grantor has no lands in A. yet this is a good annuity ;(z) so, if a man grants a rent of 20/, to be received out of a rent of 40/, this though not good as a rent, because a rent cannot issue out of a rent, yet is good as an annuity. (a) 262. By the last annuity act, 53 G. 3, c, 141, s, 10, annuities or rent- charges given by will or marriage-settlement, or for the advancement of a child, and also such as are secured upon freehold, or copyhold, or customary lands in Great Britain or Ireland, or in any of Her Majesty's possessions beyond the seas, of equal or greater value than the annuity, over and *above any other annuity, are excluded from the provisions of that ^o^^-- act, the object of which is to impose restrictions on the granting of L -■ annuities in consideration of loans of money. See further Dig. P. ii. tit. Annuities. H. jEstatc in an i^nituito, antr KncOirnt.s thereto. § 262, Annuity in Fee. How not entailable. Granted by the Crown in Fee, No Curtesy or Dower, § 263. How far an Hereditament Passes by Grant. Is not Assets. Is assignable. § 263. An annuity may be granted in fee, that is, as a conditional or qualified fee, but it cannot be entailed, being in point of charge strictly per- sonal ;(//) therefore a remainder cannot be limited over of it, as it may of a (x^ 2 H. 4 ; Fitzh. Ann. pi. 16. (y) Br. Charge, pi. 54 ; Vin. Abr. Annuity (B.) (;:) 9 H. 6. 13. 63 ; 1 Inst. 116 ; Newton v. Weeks, All. 79. («) Br. Annuity, pi. 3, citing 9 H. G. 12 ; Keilw. 161 b, pi. 1. (6} 1 Inst. 20, a. ?S5 cbabb's law of rkai, fropebtt. rent-charge. (c) except in a grant by the queen ;(rf) but when granted t/5 one and the heirs of his body, if the condition is performed by the grantee's having issue, the estate becomes absolute in him, and alienable without restriction ; and this it seems, though the grantee never come into actual possession, (e) An annuity iu fee granted by the Crown out of the 4^1. per cent, duties payable for exports and imports at Barbadoes, has been held not to be rent or realty but merely a personal inheritance, (/) but, being settled on A. and the heirs of her body, was a fee-simple conditional ;(/) so, an annuity charged upon the Post-Office, until a certain sum should be paid, in order to be laid out in land, continues to be mere personalty, and as such passes rmo---] t>y arant or *trausfer ;(^) so, there can be no curtesy or dower of ^ " -' an annuity.(/A 263. Although an annuity in fee is an hereditament and as such is fotj-q feitable for treason,(i) yet being onU' personal it is not an hereditaments within the Mortmain Act ;{k) so, before the abolition of Fines and Reco*^ veries' Act, it was not the subject of a fine or recovery, being passed by mere^ grant or transfer;(/) so, an annuity is not within the Statute of Frauds so far as it affects real property ;(m) so, it is not assets in the hands of the heir, becaij«e not comprised within the description either of lands or tenaments; nor iu the hands of executors, because its inheritable quality prevents it from goin? to them.(n) Whether an annuity was assignable or grantable over was for some time doubtful, because it was looked upon to be merely a chose in aclion,[o) but it has since been ruled otherwise ;(/j) and in Gerard v. Boden,((7) it was said that an annuity was not so much in the personalty as hath been argued; so, it seems too that naming assigns is not essential to the making of an annuity assignable. (r) III. ^^jportioutnrnt of an ^nnuito, ^ 264. At Common Law. | § 274 By Statute. § 264.^An annuity or rent-charge, like a rent-service, was formerly not apportionable ; therefore where an annuity was payable at Lady-Day and (c) Turner v. Turner, 1 B. C. C. 316 ; S. C, Arabl. 776 ; Weeks v. Peach, 2 Lutw. 1218. {d) Sir T. Wroth's case, Plow. 475 ; 2 Voz. ISl. {e) Turner v. Tiu-ner, sup. {/) E. of Strafford v. Buckley, 2 Vez. 170. (2-) Holdernesse (Lady) v. Carmarthen fMarqni?,) 1 B. C. C. 37?; see also Miles v.Wil- Mams, 1 P. Wms. 252 ; Forth v. Chapman, Id. 663. (A) 1 Inst. 144. b ; Poph. 87. (f) Ncvil's case, 7 Co. 34 b. {k) 19 E. 3, Mortm. ; 1 Inst. 2 b. (Z) Sheph. Touchst. 11 ; 1 Vez. 391 ; Piff. 97. (m) 2 Vez. 170. (n) Doct. &, Stud. C. 30, p. 97 ; 2 Vez. 179. io) Perk. Sect. 101. (p) Maund's case, 7 Co. 28 b. (3) Metley, 80. (r) But see contra, Perk. sup. RECOVERY OF AN ANNUITY 189 Michaelmas, and annuitant *died on Michaelmas-Day after sunset, r-^o-el his executors should have the last quarter's annuity which was L J payable on that day ;(s) sed sems if he had died before the day ;(s) but now by the 4 & 5 W. 4, c. 22, Avhere an annuitant dies between the times of payment, the executors or administrators may recover a portion of any annuity or annual sum for so much of the time as has elapsed between the last payment and the death. See further Dig. P. ii. tit. Apportionment; and as to rent-charges under the Tithe Commutation Act, see ante, § 141 et seq. IV. iicco^crn of an ^tnnuitn. § 266. By Distress. | ^266. By Writ of Annuity [*257] § 266. An annuity, like a rent-charge, when granted by deed is recover- able by distress only by force of the clause in the deed giving that power,(/) and so likewise in regard to the remedy by entry ;[u) but where a rent- charge is created by will, although a .power to distrain is not given in express terms, yet it has been deemed to be a consequence drawn by law from a rent-charge ;(.r) therefore where there was a devise of lands to A. for life, remainder to B. in fee, charged with the payment of £20 a-year to C. during her life, to be paid by A. as long as she should live, and after her decease to be paid by B. ; the annuity was held to be a charge on the estate, and that C. might distrain for the arrears, although the will contained no power of distress. (i/)(l) An annuity which is only to charge the person is recoverable by Avhat is called a writ of annuity, that is an action of debt for the recovery of an annuit}-, and it is said that where the rent is behind the grantee may choose ^whether he will sue a writ of annuity and charging the person only make it personal, or whether he will distrain for the rent behind, and so charge the land ;(2:) but he cannot have both the remedies together, for if he have a writ of annuity then the land is discharged, (2) but if he distrain for the rent and in replevin avow the taking of the distress, then is the land discharged ; but he can determine his election only by action or suit in a court of record, for if he distrain only, he may still have his writ of annuity or personal action. (~) See further as toremedies post, Injuries to Things Real and their Remedies. (s) Bellasis v. Cole, 1 P. Wms. 170, n. (<) See ante, §§151, loQ. (u) See ante, 6 222. (z) Rodliam v. Berry, Watkins's Conv, by Cov. 243, n. (a). iy) Buttery v. Robinson, 3 Bing. 3i)2 ;' S. C, 11 Moore, 262. Iz) Litt. sect 219 ; 1 Inst. 144, b. (1) Compare Robinson v. Townsbend, 3 Gill & Johns. 424. (2) Bosler v. Kiilin, 8 W. & S. 185. *Eng. Com. Law Reps. xiii. 20. November, 1846 13 190 crabb'slawofrealproperty. SECTION VI. RIGHT OF COMMON. § 267. Under this head may be considered: — 1. The nature of a Right of Common and its different kinds 2. Incidents to the Right of Common. 3. Interests of the Lord and the Commoner. 4. Alienation of Common. 5. Apportionment of Common. 6. Extinguishment of Common. 7. Suspension of Common. 8. Revival of Common. 9. Injuries to the Right of Common and their Remedies. I. 2riie liattirc of a 2^ig!it of (^ommoii, anti its Diffcrrut itintis. § 268. Definition. I § 268. Different Kinds. 268. Common imports a privilege to take a profit in common with many, J-. -, or, in other words, it is a right or privilege *which one or more *- -^ persons claim, to take or use some part of that v/hich another man's lands, waters, woods, &c., naturally produce, without having an absolute property in such lands, waters, woods, &c.(l) It is an incorporeal right, which lies in grant, originally commencing on some agreement between lords and tenants, which by time has been formed into prescription, and continues good, although there be no deed or instrument to prove the original contract. (rt) It is distinguished as to the ground or reason of the right into common appendant, common appurtenant, common in gross, common pur cause de vicinage or because of vicinage ; and again, according to the subject-matter, into common of pasture, common of estovers, common of turbary, and common of piscary. Common appendant is a right annexed to the possession of land, by which the owner thereof is entitled to feed his beasts or take wood, &c. Common appurtenant does not arise from any connexion of tenure, but must be claimed by grant or prescription ; common in gross is a right not annexed to land, but annexed to the person, and must be claimed by grant or prescrip- tion ; and common because of vicinage where the inhabitants of two town- ships have usually intercommoned with each other. All these distinctions are applicable to common of pasture, but to common of estovers and the others they apply only in a partial degree. (a) 4 Co. 37 ; 2 Inst. 65; 1 Vent. 387. (1) Van Rensselaer v. Radcliff, 10 Wend. 647. Trustees v. Robinson, 12 Scrg. & Rawlo, 33. § 2G9. What it is. COMMON OF PASTURE. I. CTommon of iiasturc. I § 263. Appendant or Appurtenant. 191 § 269. Common of pasture, which is by distinction called simply common, being the most important of these rights, maybe defined, when it is append- ant, to be a right belonging to the owners or occupiers of arable lands, to put upon *tlie lord's waste, or upon the lands of other persons ^ within the same manor, commonable beasts, that is, beasts that serve [ '^'^^J for the plough, as horses, or oxen and sheep, or kine, to manure the land. (6) For the most part the property in the soil is in the lord of the manor, but it may be in the particular tenants of common fields. (c) Common of pasture is either appendant or appurtenant. I. Common of pasture appendant. § 270. Is of common Rig-ht. Need not be prescribed for. Appendant to Land. Not to a House. To what Land. Beasts levant and couchant. 27L Claimed for Commonable Beasts. 272. Number limited by Usage. § 273. Claimed by owners of Common Fields. Lord and Tenant Corporations. Infants, &c. 274. Copyholders. 275. Inhabitants. 276. Different Ways of User. § 270. Common of pasture appendant is of common right, and therefore a man need not prescribe for it ;(rf) this kind of common must be time out mind, for it cannot now be created, (e)(1) and it cannot be claimed b}- way of custom.(y') Common of pasture appendant may be considered:— 1. What it is appended to. 2. For what cattle it may be claimed. 3. Who may have it. 4. How it may be used. 1. What it is appendant to. This common is regularly appendant to arable land,(g-) not to a house ; therefore a claim of right of common without stint as annexed to an ancient (i) 1 Inst. 122, a. (c) Hickman v. Thornc, 2 Mod. 105. {d) 1 Inst. 122; see alsoHarg. n. (2), 122, a. (e) 1 Roll. Abr. 396. (/) 6 Co. 59 ; English v. Burrell, 2 Wils. 258. {g) Tyrringham's case, 4 Co. 37 b. (1) Watts V. Goffin, 11 Johns. 498. 193 crabb's law of real property. j.^nnri-1 messuage without land *cannot as such exist by law ;(/*) yet if L -la man prescribe for common appendant to a cottage, &c., it will be well, for it has a curtilage, &c.(i), but otherwise where there is no curtilage or land. (A:) It must be regularly appendant to arable land only, yet it may be claimed as appendant to a manor farm, a ploughland or a carve of land, though it may contain pasture, meadow, and wood, for it shall be presumed to have been all originally arable land, though afterwards converted into pasture, meadow, and wood ;(A but it cannot be appendant to land which is improved within the time of memory out of the waste of the lord.(m) 2. For what Cattle it may be churned. 271. This may be considered as to the sort of cattle, and as to the number of cattle, for which the right may be claimed. The right can be claimed for commonable beasts only, that is, such beasts as will serve for the plough or to manure the land,(n) therefore, if a man prescribe for common appendant for all cattle it shall be bad,(o) and hogs, goats, geese, or the like, are not according to the usage of the common •,(]A the courts, however, will intend, that the beast are commonable unless the contrary ap23ears.(//) Common appendant cannot regularly be for a certain number of beasts, but for such only as are levant and couchant upon the land to which the right is appendant, and the number of cattle allowed to be levant and -oRiT couchant shall be ascertained by the number of cattle which can L J be *maintained on the land by its own produce during the winter, (r) " In the case of a distress, those cattle only are said to be levant and couchant on the land, which have been there long enough for them to have lain down and risen up again, but in case of right of common it is different, for there it means cattle which are connected with the land in respect of which common is claimed. "(s) The term common sans nomhre does not mean innumerable, but only indefinite, not certain. (/) 273. But common appendant may by usage be limited to any certain Qi) Benson v. ChcsltT, 8 T. R. 398. (i) 2 Inst. 73G ; 2 Brownl. 101 ; Emerton v. Sclby, 2 Ld. Raym. 1015 ; S. C, 6 Mod. 114. 174 ; see also Arlett v. Ellis, 9 B. &, C. C71.» (A) Scholes V. Hargrave, 5 T. R. 46. {I) 2 Inst. 85. 474 ; 2 Brownl. 298 ; Roll. Abr. 396. (m) 5 Ass. 2, cited Bro. Comnaons, 16. (n) 2 Inst, 85. (0) 1 Roll. Abr. 397. (p) 25 Ass. pi. 8 ; 37 H. 6, 34 ; Bro. Com. pi. 13 ; Finch. Law, 56. {if) Standred v. Slioreditch, Cro. Jac. 580. (r) Cole V. Foxman, Noy, 30; see also 8 Co. 79 ; 13 Co. 66 ; Norse and Webb's case, Nov, 145 ; Patrick v. Lowre, 2 Brownl. 101 ; Dean and Chapter of Salisbury's case, W. Jo."282; Sawyer's case, id. 281; Jetfry v. Boys, Hard. 117; Leniel v. Harslop, 3 Kcb. 66 ; Benson v." Chester, 8 T. R. 396. (s) Per Baylcy, J. Cheesman v. Hardham, 1 B. & A. 710. ll) Bennett v. Reeve, Willcs, 227. »Eng. Com. Law Reps. xvii. 472. COMMON OF PASTURE. 193 number ;(«) so one may have a right of pasture for thirty beasts in one place, and a similar right for ten out of another, both places being in the same waste •,{x\ so, the prescription was for four other beasts, three horses, and sixty sheep ;(y) so, where there are several owners of a common field, the custom may be that they shall turn out cattle in proportion to the extent, and not to the produce, of the land in respect of which the right is claimed,(2) see further as to user of the common infra, § 37G. 3. Tflto may have it. 273. Where there are several owners of common fields who have a right of inlercommoning, the extent of their right is regulated by custom. («) Where there is lord and tenant, the lord has of course in *the p^-gG''! first instance a right to common in his own tenancy,(6) for the L benefit is mutual between lord and tenant. (c) The tenants here understood are such as are tenants of all waste lands in the manor, where the lord claims an immediate ownership in the soil so a matter of right, not tenants holding certain lands under him, for a custom, that the lord should have common in the lands of such tenants is bad. (J) A man may, however, have two distinct rights of common in two distinct wastes of different manors. (e) Ecclesiastical corporations, both sole and aggregate, may have common appendant, as a dean and chapter ;(/) so, an abbot or parson :(i?-) 80,%- corporations ;(/?-) so, infants, executors, assignees, husbands in right of their wives, and other representative persons, may also have this right vested in them ; and as an alien may take a lease, so he may enjoy a right of common connected with the land he occupies under that lease. (i) 274. Copyholders can claim common by the custom of the manor only ;(/i) but no one can claim a right of this nature except it be in respect of land, and he must in the first instance shew that he derives title to the enjoyment of it through the original owners of such land :(/) and where a copyholder has common in a Avaste, without the manor of which his copyhold Avas parcel, it was held that he had it annexed to the land, and not to his custom- ary estate, and he must, by reason of the weakness of his estate, prescribe in the que estate, that is, in the name of his lord ;(?n) and after *en- r^gesl franchisement, the feoffee must prescribe in a que estate of his lord, L " -' («) 17 E. 26; Trulock v. Ri^rsby, Yclv. 185; Mills v. Ward, 1 Vent. 92; Chandler v. Mclland, 2 Keb. 491. (x) 17 E. 3. 34 ; 1 Roll. Abr. 397. (y) Mors v. Webbe, 1 Brownl. 180. (z) Cheesman v. Hardham, 1 B. ife A. 706. (a) Chccsnian v. Ilardbam, sup. (/;) 2 Inst. 85. 474. (c) Mors v. Wcbbc, 2 Brownl. 298 ; sec also 2 Mod. 275. ((/) White V. Sayer, Palm. 211. See also Mors v. Webbe, sup. (e) Hollingshcad v. Walton, 7 East, 485. ( /) Dean and Cliapter of Salisbury's case, V/. Jo. 282 ; Ely (Dean, (fee.) v. Warren, 2 Atk. 189. iiT) 17 E. 3. 26 ; Godb. 4. (/() Mcllcr V. Walker, 2 Saund. ; Stables v. Melton, 2 Lev. 246. (i) Vaugh. 190. (k) CrowtJier v. Oldfield, 2 Ld. Raym. 1225 ; Fisher v. Wren, 3 Mod. 250. (/) Crowtlier v. Oldfield, sup. (Hi) Foistou V. Crachrode, 4 Co. 32 ; S. V., Barwick v. Matthews, 5 Taunt. 365 ;'' S. C, 1 Marsh. 50. bEng. Com. Law Reps. i. 135. 194 crabb's law of real froperty. for himself and his customary tenants, till the time of the enfranchisement, and since that time for the feoffee and his heirs as appurtenant to the enfranchised tenement. (n) 275. Inhabitants as such, without any further title to common, cannot prescribe for common, as they are not fixed persons, and the right which they claim is permanent in its natui'e, being attached to land ;(o) therefore, when the inhabitants of the city of Coventry claimed a right of common for beasts, without saying that they were levant and couchcmt, the plea was held bad -Jp) but it would have been otherwise, if they had stated that the beasts were levant and couchant ;{q) so, where a prescription was pleaded that every householder, time out of mind, ought to have common in a certain vill ; it was resolved that the claim, being uncertain and indefinite, could not be allowed,(r) and the same rule applies so much the more to mere occu- piers, (s) Houses newly erected can have no right of common when claimed by prescript! on. (^) 4. How it may he used. 276. The kind and number of cattle for which common appendant may be claimed has been already stated, see supra, § 271. The user of common may be limited as to time in different ways. As a rule, common appendant shall be for the whole year or for a limited time,(t() therefore, there may be a prescription for common after the corn is cut and _ ^carried, until the land is resown ;{x'j so, to have common in like L -^ manner if the land be sown with the consent of the commoners •,{y) so, likewise to have common appendant after the corn was cut and carried during two successive years, and then throughout the year during the third ;[z) and so of other prescriptions of like kind. As a rule, a commoner cannot agist the cattle of a stranger •,{a) sed secitf}, if he have no beasts of his own to manure the land ;(^) so, a lord cannot agist a stranger's beasts without a prescription for so doing.(c) See further as to the rights of the lord and the tenant, post, § 314 et seq, ; also as to com- monable beasts, ante, § 271. By the 32 H. 8, c. 15, various provisions are made against putting infect- ed cattle to pasture on commons, and by 13 G. 3, c. 8, provisions are made to regulate the time and manner of depasturing common pastures. As to approvement and planting trees on commons, see Dig. P. ii. tit. Commons. (n) Barwick v. Matthews, 5 Taunt. 365 ;■= S. C, 1 Marsh. 50. (0) Gatcwood's case, 6 Rep. 59. (p) 15 E. 4. 32. (9) Id. 29. (r) Ordcway v. Ornie, 1 Bnlst. 183 ; see also S. P., Tinnery v. Fisher, cited 2 Balst. 87. (s) Entrhsh V. BurncU, 2 Wils. 258. (0 Sav. 81. (u) 1 Roll. Abr. 396. (x) Trulock v. Rigshy, Yelv. 185 ; S. C, 1 Brownl. 189. (?/) Hawkes v. Molineux, 1 Leon. 73. iz) Walter V. Chauncr, 1 Vcntr. 21 ; Chandler v. Melland, 2 Keb. 491. (a) 22 Ass. pi. 84 ; ] 1 H. 6. 22, cited in Bro. Com. pi. 5. Ih) 45 E. 3. 26, cited Bro. Com. p!. 5 ; see also F. N. B. 180, B. ; see also Manneton v. Trcvilian, 2 Show. 328; S. C, nom. Slolliton v. Trevilian, Skin. 137 ; Rumscy v. Raw- son, 1 Vent. 18 ; S. C, 2 Keb. 410 ; S. C, T. Raym. 171. (c) Smith V. Feverell, 2 Mod. 6. <-'Eng. Com. Law Reps. i. 135. COMMON OF PASTURE. 195 II. Common of pasture appurtenant. ^ 277. Definition. Distinction between Common appcn- and appurtenant. 278. Annexed to what lyand. 279. (Claimed for what Beasts. 280. Nunibcr of Cattle. 2S1. Times of User. 282. Parties ehiiniing Burgages. Inhabitants. Freemen. 283. User of the Common. § 277. Common appurtenant is a rioht of feeding one's beasts on the land of another, which. is founded on a grant or a prescription which sup- poses a grant. *It is dih;tinguished from common appendant in the four following p^.^^K-i particulars : — 1. It is against common right, and must therefore be L J prescribed for, if claimed by prescription ;(ff) sed secus, where there is a grant to show;(e) and a user for fifty years has been held to be evidence for a jury to presume a grant. (/) But being a profit ci prendre in the soil of another, it cannot be claimed by custoin.(o-j 278. In the next place it may be claimed as annexed to any kind of land (see ante, § 270,) as not arising from any tenure ;(/j) it may be claimed therefore in respect of lands, in another lordship than that in which the waste is situated \{i) but it cannot be claimed as appurtenant to a house without anjr land;(A') but it is not necessary in pleading to state it as annex- ed to land eo nomine, for if laid as appurtenant to a thing, Avhich, in intend- ment of Irw, prrmd facie comprehends land, it is sufficient, as where it is laid appurtenant to a messuage, (/j or to a cottage ;(?n) for the law, upon demurrer, or after verdict, will presume that there is at least a curtilage belonging thereto, on which the cattle may be levant and couchant.{ii) In this point the relaxation of the rule applies more properly to common appur- tenant than to common appendant, although in the cases cited the two kinds of common seem to be confounded. But see Tyrringham's case, sup. ; see also ante, § 270. *279. Again, it maj^be claimed for any kind of cattle, not merely pj(opp-i !or commonable beasts or beasts of the plough, (o) but for every kind L J t)f beast not commonable, as hogs, goats, geese, &c.[pj (o) Tyrringham's case, 4 Co. 37. (c) Mollition v. Trevilian, 2 Show. 328 ; Skin. 137. '' f) Cowlan V. Slack, 15 East, 108; see also Tyrringham's case, sup.; Pretty v. Butler, 2 Sid. 87. (o-) Gatewcod's case, 6 Co. 5D ; Grim.'^tead v. Marlowe, 4 T. R. 717 ; Hardy v. Holli- day, cited 4 T. R. 717. (//) 37 H. 6. 34 ; 15 E. 4. 33. ,'t) F. N. B. 181, n. ; Sacheverell v. Porter, Cro. Car. 482 ; S. C, 3 W. Jo. 396 ; Clark- ^^on V. Woodhcusc, 5 T. R. 412. (A-) Seholcs V. Hargreaves, 5 T. R. 46 ; Bull. N. P. 59 ; Chester v. Benson, 8 T. R. 3lfi. {I) Patrick V. Lowre, 2 Brownl. 101; Hockley v. Lamb, 1 Ld. Ray in. 726; but see <;ontra, Nortli v. Coe, Vaugli. 253. (m) Co. Ent. 649 a; Emerton v. Selby, 2 Ld. Raym. 1015. in) Seamier v. Jolmson, T. Jo. 227. (>0 See ante, § 276. ip) 37 H. 6. 34 b ; 15 E. 4. 33 ; 1 Inst. 122, a ; Roll. Abr. 402. 196 crabb's law of real property. Last]}% it may commence by grant within time of memory, (y) and may be severed from the land to which it is appurtenant. (r) 280. In other respects these two kinds of common agree. The number of cattle may be limited or unlimited. (s) When common appurtenant is granted for an unlimited number of cattle, the measure of profit which the commoner may enjoy is to be regulated by the number of cattle levant and couchant upon the- land entitled to common, as in the case of common appen- dant 'lit) and where a man claims common for all commonable cattle but does not say levant and couchant, this shall be intended commons sans nombre, according to the words ;(w) but although this prescription be bad on demurrer yet held to be cured after verdict. (a;) 281. There is no less diversity in the periods for using common appur- tenant than for common appendant ; a man may prescribe for it generally w^ithout mentioning any particular season of the year ;(?/) or the prescrip- tion may be for every year from the time of cutting and carrying away until ^ -^ the field was re-sown -,(2:) and where such is the prescription, and the L -^ land was not sown for seven years, held *that cattle might feed until it was sown again ;(«) so, a particular place in a waste or common may be marked out for a common appurtenant. (6) 282. Burgagers in a borough may have common appurtenant to their burgages by prescription ;(c) so, for beasts levant and couchant in their vill ;((/) but an inhabitant of a town shall not have this common by reason of his commorancy in an ancient messuage, not having any interest in the house, for this is neither common appendant nor appurtenant, or in gross or because of vicarage, for common such as this would be transitory and uncer- tain ;(c) yet he may have it in a place where such right attaches, provided the cattle be levant and couchant ;(/) and so it seems that in general inhabi- tants may claim by custom although they cannot prescribe ; sed querse.{g) Freemen may prescribe in respect of ancient messsuages, for they may be taken to include land on which their cattle may be levant or couchant.iji) Bo, it seems that a copyholder may prescribe for common for a limited num- ler of cattle in land parcel of a manor, and this will be common app\irtenant, and being a copyhold grant, it still remained attached to the manor, even during the time of its being enjoyed by the copyholder, (i) (7) Sacheverell v. Porter, sup. ; Pretty v. Butler, 2 Sid. 87. (?) 26 H. 8. 4, cited Bro. Com., pi. 1 ; Leniel v. Harslop, 3 Keb. 6G. (s) F. N. B. 181, n.; 1 Inst. 122, a ; Day v. Spooner, 4 Vin. Abr. 591. (0 See ante, § 271. (u) Cheedle v. Mellor, 1 Sid. 313 ; S. C, nom. Chcedley v. Miller, 1 Lev. 196; S. C, 2 Keb. 108 ; see also Jenkin v. Vivian, Popli. 201 ; Hopkins v. Robinson, 1 Mod. 74. (x) 1 Saund. 227 ; Stoncsby v. Musscnden, 2 Sid. 87. (y) 2.5 Ass. pi. 8, cited Bro. Com. 41; 1 Roll. Abr. 401. (z) Musgrave v. Cave, Willes, 319. (a) Walker v. Miller, 1 Freem. 23. (h) Musoravc v. Cave, sup. (c; IMiller v. Walker, 2 Sid. 462. (J) Cheedle v. Mellor, sup. (e) Gatewood's case, 6 Co. 60 ; Fowler v. Dale, Cro. El. 362; see also Hob. 86 ; Foxnll V. Venablcs, 2 Leon. 45 ; S. C, 1 And. 152 ; Godb. 97 ; Smith v. Gatewood, Cro. Jac. 152, ( f) 15 E. 4. 32, ciied Bro. Com. pi. 8. (^) Weekly v. Wildman, 1 Ld. Raym. 406. (h) Hinckes v. Gierke, 2 Show. 78 ; S. C, 2 Lev. 252. (j) Musgrave v. Cave, Willes, 319 ; see also Stamford v. Burgess, Sheph. Abr. 381. COMMON OF PAST tT RE. 197 283. As in the case of common appendant, (A;) so in this kind of common a commoner as a rule cannot agist the cattle of a stranger,(/) yet he may- borrow the cattle of *another person for the purpose of manuring the ^ land, and with these he may use the common,(?n) for he has thereby [*2G8] a special property in them ;(n) so, he may use the common with cattle which are for his household ;(o) but not with any which are kept for sale ;(o) and it seems that the lord, who is the owner of the soil, may license a stranger to put in his cattle, it being no wrong to him, and it cannot be a surcharg- ing ;(^j) but cannot exercise his right in so unlimited a manner as not to leave sufficiency of pasture for the commoner ;(y) and so, it seems on the other hand that a custom that the copyholders should have the sole and several pasture to the exclusion of the lord is gooi;(fj) but see further as to disturbance of common, post, § 348. III. Common of pasture in gross. 284. Wliatitis. Grants of Common in Gross. 285. Wlio may take. Not Inhabitants. 286. With what kind of Cattle it may be used. 237. With what number. Common sans nonibre. 238. Wliere Common may be taken. 289. Witli whose Cattle it may be used. § 284. Common in gross is so called because it does not appertain to any land ; and it must be by grant or prescription, which supposes a grant ; and it may, like common appurtenant, commence at this day by writing, that is by grant ;(r) therefore if one grant so many acres of land, with as much common as belongs to his oxgang of land in a certain place, this is a good grant of common in gross ;(s) so, if he grants an assart with all the com- mon that pertains to *one bovate of land ;(s) so, if a man grants com- pssofiO'l mon to the mayor and burgesses for all their cattle ;(/) and this right L may be vested in a man and his heirs by deed, although he have not a foot of land in the place, for there is no connexion of tenure. (?/) 285. This kind of common may be prescribed for by the maj^or and bur- gesses of a corporation ;(x) but although the inhabitants of ancient mes- suages in towns may prescribe for common as appurtenant to their houses ;(?/) yet inhabitants as such cannot prescribe for common in gross, therefore where a man built a new house in such ancient town he could not prescribe for common by reason of such residency, (?/) unless such new house had been (li) Sec ante, § 276. (/) 30 E. 3. 28, cited 1 Roll. Abr. 401 ; Molleton v. Trevilian, Skin. 137 ; S. C, 2 Lev. 2. (w) 14 H. 6. 6 b, cited Bro. Com., pi. 14 ; 1 Roll. Abr. 401. (n) Manneton v. Trevilian, 2 Show. 328; S. C, nom. Molleton v. Trevilian, sup. (o) 14 H. 6. 6, c. (;)) Hoskins v. Robins, 2 Saund. 324 ; but see ante, ^ 276. (7) Smith V. Fcverell, 2 Mod. 6. (r) 1 Inst. 122, a.; Tvrringham's ease, 4 Co. 33; 2 Inst. 477. is) F. N. B. 130, N. (n.) (t) Stables V. Mcllor, 2 Lev. 246; sec also Mellon v. Spateman, 1 Saund. 343. (m) 2 Com. 34. (x) Mellor v. Spateman, sup. ly) Costard and W ingfield's case, 2 Leon. 44. 198 - CRABb's LAW OF REAL PROPERTY. built upon the site of the old house ;{z) so, lessees cannot prescribe by reason of the imbecility of theirestate ;(a) so, not the queen lest she should surcharge. (6) 286. A license to feed may be granted so as to include all manner of cat- tle, but a general license to feed is confined to commonable beasts only, yet such a license to feed for a particular period may include hogs and other beasts. (c) 287. This kind of common may be granted either for a limited or unlimited number ; in the former case it must be enjoyed according to the terms of the grant ; but in the case of common for an unlimited number, or common sans nomhre, as it is termed, there has been some diversity of opinion. It has been long settled that this term as applied to common r*97m *'ipP'^"tl^'^t Js restricted to cattle levant and couchant ;(fZ) so, in L -I regard to common appurtenant, (e) as a prescription for all cattle commonable to depasture in the land of another is bad, for a man cannot have common suns nomhre appurtenant to land, otherwise unnumbered beasts might be put in at pleasure ;(e) and in the absence of any contract, it has been held that no common is recognised by the law, but what is mea- sured by levancy and couchancy ;(/) and so in the case of a grant, where the matter has been much discussed, the better opinion appears to be that a common in gross sa?is iiombi'e, may be granted to an individual, provided he leaves sufficient for the lord ;(«•) or, as Lord Coke saj'-s, " provided he leave sufficient for the tenant to feed there ;(/i)" and it seems to be admitted that although a corporation may prescribe for a common in gross, yet they may not prescribe for a common in gross sans nombre.ii') 288. The place where common in gross may be taken ought to be speci- fied in the grant, otherwise it will be void ;(_/) but if stated generally, it is sufficient, as Vv'here A. grants lands to B., with common in all his lands, the grantee shall have common in all the laiids which A. has at the time ;(it) so, where common is granted for twenty beasts in the manor of D., the grantee shall have common in every part of the manor he chooses, (/) but not in the grantor's garden or corn,(m) unless the grant be, wherever the grantor puts his cattle, and the grantor puts his cattle in his corn,(m) see further, Woolr. L. Com. c. 7. r*271~l ^®^' ■'■'' ^^^^ decided in an early case, that a commoner *entitled *- -^ to common in gross could not agist the beasts of others in his common, therefore in replevin where the plaintiff's ancestor died seised of such com- mon, and the plaintiff commanded his tenants to put in their beasts and use the common in his name, it was held, that the lord of the manor was justified {z) lb. ; see also 15 E. 4. 29, 33, cited Bro. Com. pi. 8. («) V. Stringer, Cro. Car. 599. (ft) 27 H. 8, 10 b. (c) Smith V. Feverell, 2 Mod. 7; S. C, 1 Frce.m. 190. id) Bennett v. Reeve, Willes, 232. (e) Sa3^c's case, March, 83. ( Clicster V. Benson, 8 T. R. 396. ' (^) 12 H. 8, 2. (A) 1 Inst. 122. (i) Mellor v. Spateman, 1 Saund. 343; sec also 22 Ass. pl.3G; Weekly v. Wildman, 1 Ld. Raym. 405. ( /) 9 H. 6, 36 ; F. N. B. 1 80, G. {k) F. N. B. ISO, G. il) 9 H. 3, 6, cited iiiBro, Grants, pi. 5 ; and in 1 Roll. Abr. 404. (/«) Sjnith V. Feverell, sup. COMMON OF PASTURE BECAUSE OF VICINAGE. 199 in seizing the beasts ;(n) sed secus, where the grantor of the common gives assent to the putting in of the beasts, the grantee not having any beasts of his own ;(o) so, it seems that a man having a common in gross for a certain number of cattle may put in the cattle of a stranger and use the common with them.(p) IV Common of pasture because of vicinage. £91. Wliatitis. 291. Not properly a Right. Inclosure against such Common. 292. Time of tTking this Common. User of tiiis Common. 233. Common of Shack. § 290. This kind of common is where the inhabitants of one or more townships or vills lying contiguous, or the tenant of two or more manors ad- joining to each other, have been accustomed to intercommon time out of mind, the commonable beasts of either straying into the other's lands with- out hindrance, and this is common appendant only in as much as it must be bj'- prescription. ((^) Common by vicinage can exist only between two townships that lie con- tiguous, and not where there is intermediate *land ;(r) and he who ^ ^ -, has such common may not put his cattle into the land of the other, L "" "J but he ought to put them in the land where he has common, and if they stray they are excused of trespass on account of the ancient usage and to save suits ;(s) but such right of common exists over open downs adjoining the common. (^) 291. This kind of common is not properly a right like the other kinds, though usually reckoned as such, it being but an excuse for a trespass ;(?<) it is at best but a permissive. vight,(a?) arising from neighbourhood where boundaries were not easily established ;(?/) so, this common not being pro- perly a right does not prevent inclosure ;(r) therefore not only the lord of one manor where a common of vicinage has existed time out of mind may inclose against the lord of another,(o) but also the proprietors of common fields may exclude each other if such has been the custom ;(b) and where an inclosure has once been made, the common is gone ;(c) but to take (n) 45 E. 3, 25 b. cited in Bro. C^m. i)l. 40 ; also in Fitzh. Ass. pi. 225 : also in 1 Roll. Abr. 402 ; see also S. P., 11 H. 7, 13., and F. N. B. 180. (0) 45 E. 3, 26, cited in Bro. Com., pi. 5; also in 1 Roll. Ahr. 402. ip) 11 H. G, 22 b., cited in Bro Com. pi. 47 ; also in Fitz.Com., pi. 3. {(() Tyrringliam's case, 4 Co. 38. (r) Dy. 47 b. ; Bromfield v. Kirhor, 11 Mod. 72. (s) Tyrringham's case, 4 Co. 38. (0 Heath v. Elliott, 4 Bing. N. S. 388 ;• S. C, G Pcott, 172. (u) Musgravc v. Cave, Willes, 322; and see Tvrringliam's case, sun. {x) 2 Com. 34. (y) Bract. 222 ; Britt. 144 ; Flct. 254. {x-. Musgrave v. Cave, Sup. (a) 1 Inst. 122, a. {h) Hickman v. Tliorne, 2 Mod. 104 ; S. C, 1 Freem. 210 ; see also R. P., Bromficld v. Kirber, sup ; Dean v. Clayton, 7 Taunt. 489 ; S. C, 1 Moore, 214 ; 2 Marsh. 577. (c) 1 Roll. Abr. 399. ■«Eng. Com. Law Reps, xxxiii. 336. ^Id. ii. 183. 200 CRABBS LAW OF REAL PROPERTY. away the claim of such common there must be a complete inclosurc, so as to prevent cattle from straying from one common to the other. (») so, not in the case of new hedges -/^(j) so, if he convert the *premises to other purposes he cannot claim esto- ^^275-] vers;(r) but if a house having such a right attached to it be pulled L J down, and rebuilt on the same or another place, the prescription is not thereby destroyed ;(s) and so if a house be enlarged or more chimneys built, the estovers shall remain to the old house. (/) 295. This right can be claimed by grant or prescription only ; and if a grant be shown, then it will be held appurtenant, and it may be pre- scribed for as such •,{x) and if it be appendant it is of common right, and may be pleaded witliout alleging a prescription, (y) If therefore a man will entitle himself to fire-bole, he ought to state his occupation of a house to which the liberty of taking fuel is attached ;(;r) so where the prescription was for all the thorns growing on a particular spot appurtenant to a mes- suage and an acre of land, provided they were used on the land on which they grew, this was held sufficient, without claiming in respect of an ancient messuage. («) As a common of estovers is a profit o prendre, and cannot therefore as a rule be claimed by custom, for a custom to take a profit in alieno solo has been holden to be bad, such a right can only be claimed by prescription :(6) and therefore a custom for all the poor householders to take estovers from the waste of another cannot be established ;(c) but copyholders are an excep- tion to this rule, see infra § 296. 296. As a rule, the occupant of a house shall have estovers, provided he can shew a prescriptive claim or a grant *entitling him thereto, (rf) p^o7fi"i for there are many houses which have not such commonable L right;(rf) so, copyholders may have such a right, if a fuslom to that effect has existed in the manor. (e) (n) Plowd. 381. (o) Selbv v. Robinson, 2 T. R. 758. (/J) F. N. B., 180, H. ; 4 Co. 86. (7) l"Bulst. 94. (;) 4 Co. 86. (s) Hob. 40 ; Godb. 97 ; Sly. 446. (/) 4 Leon. 241 ; 2 Ld. Raym. 1400. {x) Sec ante, § 277 ; also Selby v. Robinson, sup. (y) Sec ante, § 269. (z) 11 H. 6, 11, B.; 7 E. 4. 27 ; 10 E. 4,3. (o) Dewclass v. Kendal, Ytlv. 187 ; S. C, Cro. Jac. 256 ; 1 Bulst. 93 ; 1 Brownl. 219. (h) Grimstead v. Marlowe, 4 T. R. 717; see also Gatesward's case, 6 Co. 59 ; Bean v. Bloom, 3 Wils. 456; S. C, 2 BI. 92G. (r) Selby v. Robinson, sup. (d) Vauffh. 190. (c) Stebbinjr v. Gosnell, Moor. 546, pi. 727 ; S.C., Cro. El. 629 ; S. C, Anon., 1 Leon. 272 ; S\\-a3'ne's case, 8 Co. 63 ; Glascock v. Peck, 12 Mod. 360 ; see also Iloskins t Robins, 2 Saund. 320; S. C, 1 Vent. 123. 163. 203 crabb's law of real property. So, the eldest coparcener shall as a rule have estovers, and the other a contribution in lieu thereof: but if there be no other parcel of the inherit- ance, they shall, if certain be divided ; if uncertain, they shall be enjoyed alternately. (/) But inhabitants as such cannot prescribe ; they can substantiate such a right only by others, as a mayor and burgesses pleading it for themselves and the inhabitants of such a place. (g-) 297. The commoner, in this case, is as a rule entitled to take only under- wood, and loppings, &c., but there may be prescriptions more enlarged, as to cut willows for the repair of the house ;(i^) and in the case of fire-bote, grants have been construed to give hberty to take great wood, such as oaks, &c., where small wood is not to be had;(i) but the grantee can only take the wood he cuts himself, not that which is already cut;(A;) if therefore the grantor cut down all the wood, the only remedy for the grantee is an action on the case. (A:) The taking must in all cases be reasonable. (/) 298. The time of taking estovers may be varied according to the usages of different manors, thus there may be a prescription for taking estovers P#f,Ky7-i between the feasts of *St. Michael and Christ ma s,(m) or through- L J out the year except in farming time;(?i) so, the usage may be that estovers may not be had without the view of the baiUff,(o) if taken other- wise the party is liable to an action of trespass. (o) 299. It is an invariable rule that estovers must be spent upon the pre- mises which give the right to take them ;(/)) and if to be used for repairs, they cannot be appropriated to any other purpose ;(7) and this privilege, being once attached to a house, cannot afterwards be severed from it, there- fore, if the owner of the house grant the estovers to another reserving the house to himself, or the house to another reserving the estovers to himself, the estovers shall not thereby be severed from the house, because they must be spent thereon. (r) On the same principle, if a man be seised of a house in right of his wife, and another grants to the husband and wife sufficient estovers to be burnt in that house, the estovers are appurte- nant thereto, and shall descend to the issue of the husband and wife ;(s) and so, if one has a house on the part of his mother, and competent house-bote be granted to him, to be burnt in the same house, this is appurtenant to the house, and although it be a new purchase, yet it shall go with the house to the heir of the part of the mother ;(f) and whoever after acquires the house, shall have such common of estovers. (t^) For the same reason that the estovers cannot be used for any other than the purpose for which they were granted, they can in no case be sold •,[x) (/) 1 Inst. 164, 16.5. Ig) 15 E. 4. 29 ; White v. Coleman, 3 Kcb. 247 ; S.C, 1 Freem. 134 ; see also R. v. Warkworth (Inhab.) 1 M. & S. 474. (A) Fisher v. Wren, 3 Mod. 250. (t) Anon., 3 Leon. 16; Russell &- Broker's case, Id. 218. {k) Stile V. Butts, Moor. 411 ; pi. 516 ; S. C. Cro. El. 820. Q) Bract. 231 ; Flet. 266. (m) Britt. 153 ; 10 E. 4, 2, B. (n) Russell &, Broker's case, 2 Leon. 209 ; S. C, 3 Leon. 218. (o) 5 E. 3, 61 ; 8 E. 3, 54 ; 5 Co. 25. (p) 7 E. 4, 27 ; 10 E. 4, 8. (9) Earl of Pembroke's case, Clayt. 47. (r) Plowd. 381. (s) 8 Co. 54. (0 lb., citing 38 E. 3, 10. («) Plowd. 381. (r) 17 E. 3, 7. COMMON' OF TURBARY. 203 * SO, the estovers can be used only for the repair of the house, in respect of which they were granted, (y) or for rebuikling it if destroyed, (y) but *no new house, nor any additions to the old one, shall be erected r-}.^n-a-\ with the estovers. (z) L ' J Common of estovers being to be used in a house cannot be common in gross. (ff) III. Cciinnon of STuvtinvn. § 300. Wliat it is. Appendant, iS:c. Extent of the Right. How this Common may be claimed. § 301. Persons entitled to enjoy this Right, or otlicrwisc. Not mere Occupant. 303. Not restricted as to the Place where to be taken. 303. Must be used for the proper Purpose. § .300. Common of turbary is the right to dig turf upon another's land or upon the lord's waste. This, like the other rights, may be either append- ant or appurtenant ;(6) so, also, it may be in gross ;(c) but it cannot be appendant to land, because turves are to be spent in the house. (r/) And if it be appurtenant to a house, it will pass in a grant of the house. (e) This liberty is more ample than common of pasture, which is only a riglit of feeding on the herbage and vesture of the soil, as it renews annually, but this is a. right of carrying away the soil itself. To this is nearly allied another common ; namely, the hberty of digging for coals, stones, and min- erals. (_/) The manner of claiming this right, the persons entitled to enjoy it and the manner in which it may be enjoyed, are the subjects which enter into the consideration of this common. It must be claimed by grant or prescription in all cases, except where it is claimed by a copyholder, who should allege a custom. (^) *301. In respect to the parties entitled, or otherwise, to this r,ifr>-.q-i right, there is no distinction between this and other rights of L -' common ; it has been held that a mere occupant cannot have a right to carry away the soil of the lord, and, consequently, that the custom was ba.d which was laid to exist in such a person. (A) So, hkewise, a mere inhabitant as such cannot have this right ; but it seems that a mayor and burgesses may prescribe to have it for themselves and the inhabitants of such a place. (i) So, a freeman may plead a custom to take turves or dig for slates or limestones for his own use. (A-) {y^ Earl of Pembroke's case, sup. (2) 10 E. 4, 3 ; 4 Co. 87 ; 2 Leon. 44 ; 1 Vcntr. 237 ; 1 Sid. 167. {a~) 5 H. 7, 7, B. (6) 5 Ass. pi. 9 ; 7 E. 3, 43 ; 1 Sid. 354. (c) 1 M. & S. 374. (d) Tyrringham's case, 4 Co. 38. (e) Bro. Com. pi. 36. ( /■) 1 Inst. 122, a.; 1 M. & S. 474. (e) 1 Taunt. 447. (h^ 2 Atk. 189^ (»■) White v. Coleman, 1 Frcem. 184. (fc) R, v. Warkworth, (Inhab.) 1 M. & S. 474. 204 CR abb's LAW OF REAL PROPERTY. Copyholders may also claim this common by custom, but the custom must be certain and definite, or the claim cannot be established. (/) 302. This right may be limited, as the other rights of common before mentioned ; but where a replication, stating a right of turbary, was objected to, becanse the plaintiff' did not entitle himself to take turves in a certain inclosed part of the common, and common of turbary did not extend through- out the whole waste as common of pasture does, held, " that a man may- have common of turbary throughout the whole common, as well as common of pasture, though he cannot enjoy his right of common of turbary in those parts of the common where there are no turves, any more than he can enjoy his common of pasture in those parts of the common where there is no grass." Per Willes, C. J.(m) 303. Common of turbary, like common of estovers, must be used for no other than the purpose for which it was intended, namely, to be spent on the premises. A liberty therefore to dig turf does not extend to a right to j^ -, dig for *sale;(n) for it must be expended on the premises in respect L J of which it is claimed ; and a plea which claimed common of turbary as appertaining to an ancient messuage, but omitted to state that the turves were to be burnt in the house, was held bad ;(o) so, a custom for all the customary tenants of a manor, having gardens, to dig turves for the improve- ment of their gardens has been held bad, because it was indefinite and uncertain. (p) IV. CCommon of lafscarij § 304. What it is. Appendant, &c. In gross. § 304. Not otherwise distinguished from other Commons. § 304. Common of piscary is the liberty to fish in another man's fish- pond, pool, or river. This is distinguished from a common, free and several fishery, see ante, § 108. This common, like the others, may be appendant, appurtenant, or in gross. In an early c^se, where a defendant justified as having a common of fishing in the place where &c. appendant to a certain house, his plea was held good ;{q) but such a right can be claimed only in private rivers or waters ; for there can be no prescription for a common of fishery in the sea as appurtenant to certain messuages, for a right to fish in the sea is common to all the queen's subjects. (r) So, there may be a common of fishery in gross ; for a fishery may either (Z) Wilson V. Willes, 7 East, 121. (w) Fawcett v. Strickland, Willes, 71. (n) Valentine v. Penny, Noy, 145 ; see also 4 Co. 37. (0) Hay word v. Cannington, 1 Sid. 354 ; S. C, 1 Lev. 231 ; 2 Keb. 290. ( p) Wilson V. Willes, sup. (?) 4 E. 4. 29. (>•) Ward V. Creswell, Willes, 265. COMMON IN A FOREST. 205 be granted exclusively to one, in which case it seems to be properly a several fishery, (see ante, § 108) or it may be granted to one in common Avith others; *and if it be attached to the person in contradistinction r^jnon to appendancy or appurlenancy, it is properly a common in gross, •- -• and so it was held to be in an early case ;(s) and so, it was said that the royal fishery of the Banna w£is not appurtenant, but a fishery in gross. (/) As to who may have this common, and in what manner it may be taken, this common has nothing to distinguish it from the other commons already mentioned, except so far as fisheries arc under legislative restric- tions. V. Common fii n JFovc.st. § 305. Definition. Saving of commonable Rights. Extinaruisliment of tlie RigliL to 306. What may be talien. § 306. Time of taking. Fence month. For what Cattle, Drifts of the Forest. § 305. Common in a forest is the taking of accustomed herbage and other things from the soil of another within the forest. (?<) This, like other commonable rights, is either appendant, appurtenant, or in gross. (t;) This right was reserved by an express clause in the Charter of the Forest, to all persons who should be in the enjoyment of common in lands or woods, that might thereafter be afforested. See Dig. P. i. tit. Forests. Common appendant and appurtenant can be claimed only in respect of land within a forest ; therefore, where a prescription was made for common in a forest, and it appeared that the place had been disafibrested, but the special verdict did not find that it had been made forest again, on that ground judgment was given against the claimant ;(.r) and this is in accord- ance Avith the 33 E. l,stat. 5, Ordinatio Forestx, *\vhich provides rjfOQoi that in purlieus and disafforested grounds, persons shall not have •- J common, but that such may be received again into the forest, if they will bear the burthen thereof. Under the 32 E. 4, c. 7 ; 35 H. 8, c. 17, s. 8 ; and 13 El. c. 25, s. 18, for inclosing woods in forests, (see Dig. P. i. tit. Forests), it has been held that the commoner is not necessarily excluded from his common by reason of such inclosure.(?/) 306. Besides herbage and estovers generally, which are the proper sub- jects of commonable rights in a forest, there is one kind of estovers called pannage, consisting of acorns, beech mast, and the like, which may be more especially claimed there, and that too notwithstanding they are the food of swine, and that regularly swine have no place to common in a forest, (z) (s^, 4 Ed. 4. 29. {t) Davis, 57. (u) Manw. 95. (v) Id. 97. (i) Woolridge v. Dovev, Hard. 87 ; S. C, W, .To. 292 ; see also Trigg v. Turner, 2 Show. 10. (?/) Barrington's case, 8 Co. 136 ; S. C, Godb. 167. (s) But see 3 Bulst. 213 ; Bridgin. 26 ; and see in&a. November, 1846.— U 206 crabb's law of real property. The time of taking common in the forest is regulated not onl3r by the forest laws, but by several Acts of Parliament, as the 20 C. 2, c. 3, for the preservation of timber in the Forest of Dean, and the 9 & 10 W. 3, c. 36, for the preservation of timber in the New Forest. The rights of the com- moners are restricted by the crown being enabled to inclose considerable parts of it, and it has been held under this latter statute that the right of common in the inclosed parts is restrained absolutely, during the period of inclosure, but continued in the uninclosed parts under certain restric- tions, (a) By Manwood it is said that commonable cattle only, according' to the forest, can be put on the conmaon during the fence month ;(6) but a pre- scription to have common for cattle in the forest at all times of the year, without excepting the fence month, has been held good.(c) -, *Regularly, all beasts may be put to common in a forest, except L J goats, sheep, swine, and geese, for which last it has been said that there cannot be a prescription, (J) and so as to sheep and swine. (e) By the 32 H. 8, c. 13, s. 2, stone horses above the age of two years, and not of the height of fifteen hands, are not to be put to feed on any forest, chase, or common, &c. By s. 2 of the same statute, the time and manner of making drifts of the forest are regulated. These drifts are said to be when all the cattle, as well of commoners as of strangers, are driven by the officers of the forest to some certain inclosed place, and the object of them is to see whether the commoners common with such cattle as they ought ; also, that they do not surcharge the forest; and also, that there be no cattle of any stranger commoning there. (/) II. Kncitfcnts to a ittglit of Common. § 307. Seisin. How acquired. 308. Is subject to Dower, Common sans nombre, when. Common in gross, when. Subject to Curtesy. § 309. Grantably by copy. 310. RateabiHty. 311. Subject to Tithe. 312. Sufficient to give a Settlement. 313. How subject to Distress. § 307. The principal incidents to a right of common are what relates to the seisin or possession of a common, the estates to be had in a common, the liability to rates and tithes, and the law of settlement and distress. As to the seisin necessary to entitle a commoner to the remedies against disseisin, (see post, § 352,) it appears, a tortious use of a common, or a user 746 (a) Biddlecombe v. Kerwell, 2 Burr. 1118. (h) Manw. 92; see W. Jo. 283. (c) Trigg V. Turner, 2 Show. 9 ; S. C, Pollexf. 443 ; S. C, 3 Lev. 98; S. C, 3 Keb, I 6 ; S. P., Brabrooke v. Carter, 3 I-ev. 127 ; S. C, 1 Lutw. 81. ((/) Manw. 100 ; but see contra, Webb's Habeas Corpus, 3 Bulst. 213. (0 Ih ; also 4 Inst. 298; W. Jo. 293 ; 2 Show. 10 ; Hard. 87. (/)4Inst. 302. INCIDENTS TO A niGHT OF COMMON. 207 of a common by a tenant *at will, is not sufficient ;(g-) but it is said ^„q .-, that the user by tenant at will would (before the 3 & 4 W. 4, c. 27, ^ J s. 36, abolishing the remedy by assize,) have given such a seisin to him in the reversion that he might have had an assize, if he or his tenants had been ousted or disturbed. (/i) A user of borrowed cattle will it seems enable a commoner to acquire a seisin, if he have not sufficient cattle of his own, and borrows for the pur- pose of manuring the land;(i) but it is not settled whether putting in cattle for the mere purpose of gaining a seisin be good.(i) No certain number of beasts is necessary to give seisin, for user of a common sans nombre will have this effect. (^) As to the persons through whom seisin may be acquired, the seisin of the tenant for life or years is suflicient for him in reversion,(/) but the seisin of the ancestor is not sufficient for the heir ;(m) so, if a copyholder enter as a commoner, his entry will be taken to be in right of the lord, though not by his command, and he have not even notice of it.(n) If a man be disseised of his land, to which common is appendant, he loses his right to the common until he recovers seisin. (o) 308. Common appendant or appurtenant is subject to dower, because it is certain in its nature, and if it be such a common as will go to the land whereof a woman is dowable of, it shall be intended after verdict to be the ' one or the other ;(;;) but of a common sans nombre a woman is not dowa- ble, and where it is without stint it has been determined that it goes to the heir, for it is not divisible, since if both the heir and the widow were allow- ed to exercise the *right, there would be a double stocking of the r=s9Qc-i waste, which is not reasonable ;((j') but in favour of the dowress the L -^ Courts will after verdict intend the common to be appendant or appurte- nant, rather than common sans nombre.{r) So, although a woman will be dowable of a common in gross, if it be cer- tain, yet in order that it may be ascertained the demandant ought to shew for what cattle she makes her claim ; therefore, where a widow demanded the then part of a foldcourse, without saying in certain to what description of beasts she held herself entitled, her claim was disallowed for want of greater certainty. (s) For this reason it is, that a tenement being an uncertain thing dower will not lie for it.(^) 309. There may be curtesy of all commons not excepting common sans nombre: for the husband havino- the whole inheritance, there is no occa- sion for it to be divided as in the case of dower.(M) A right of common, like other incorporeal hereditaments, is grantable by {g) 45 E. 3, 25, cited Bro. Com. pi. 5 ; Bro. Seisin, pi. 5 ; 22 Ass. pi. 84, cited Bro. Com. pi. 36, 40 ; 14 H. 6, 6, cited Fitzh. Ab. pi. 228. (A) F. N. B. 180, (I.) (i) 45 E. 3. 25, &c., sup. ; Kitch. 123. (k) 11 H. 6, 23. {I) 45 E. 3, 25, sup. {m) lb. ; sec also 1 Roll. Abr. 404. (n) Anon., Sty. Pasch. 1653. (o) 1 Inst. 122, b., citing 19 H. 6, 33. {p) Pruett V. Drake, Cro. Car. 300 ; F. N. B. 148, C. (9) 1 Inst. 30, b., 32, a. ; Perk. s. 341 ; 1 Roll. Abr. 675. (r) Pniett v. Drake, sup. ; see also S. C, W. Jo. 315. («) Anon., Godb. 21, pi. 27. if.) Anon., Stra. 625, recognising Pruett v. Drake, sup. (m) 4 Inst. 30, b. 208 CR abb's law of real property. copy of court roll, being parcel of a manor, and this it seems applies no less to common in gross than to common appendant. (a;) 310. Right of common being an incorporeal hereditament, is not liable to be rated to the rehef of the poor; therefore, where the burgesses of Not- tingham and the occupiers of ancient messuages there, had, as such, for a certain portion of the year, a right to turn cattle into certain fields, and to exclude during that period the owner of the soil, this was held to be a mere right of common and not rateable to the rehef of the poor,(i/) that not being an exclusive *occupation so as to bring it within the 43 El. ;(z) for [*28bJ ^iff^Q^gj^ a^ jigj^t of common in gross is a tenement,(c) yet to make it rateable it must be coupled with an exclusive enjoyment of the land for the time ; therefore, where a corporation was seised in fee of waste lands, and meted them out to the resident burgesses according to a certain stint, reguliited by a leet jury, held, that the burgesses, who were tenants in com- ■ mon, were liable to be rated as occupiers of the land;(6) so, where trustees let out aftermath to different persons, they were held rateable for such occu- pation. (c) See further Dig. P. iii. tit. Poor (Rate.) In Jones v. Maunsell,(f?) it was much discussed but not settled whether the herbage and pannage of a forest in the hands of a subject be rateable under the 43 El. ; but in Lord Bute v. Grindal,(e) it was held that the ranger of a royal park is not rateable for the herbage and pannage Avhen it yields no profit. 311. Where common is appendant or appurtenant it is considered as part of the land, and, therefore, is exempt from tithe, because it is paid in regard of the land to which it appertains ;(/) but it is otherwise with a common in gross, for that is annexed to the person, and not to land, therefore the party entitled to such common must pay an agistment tithe in respect thereof. (»■) Regularly, common of estovers, turbary, and piscary, are not liable to tithes, but they may be so by special custom.(A) *„o-.-i 312. Before the 59 G. 3, c. 50, (see Dig. P. iii. tit. Poor *(Set- L -' tlement,') ) a settlement might have been gained by the renting of a common in gross of the value of £10 or upwards, for a right of common was held to be a tenement within the 13 & 14 C. 2 ;(i) and the hiring of com- mon of piscary, or of any other kinds of common, has also been held suffi- cient to give a settlement ;(^) but where a pauper freeman was entitled to (x) 3IiisgTave v. Cave, Willes, 324,0TerruliEg Sands v. Drury, Cro. El. 814 ; S. C, cited Hargr. Co. Litt 58, b. See also Co. Cop. s. 17 ; Com. Dig. tit. Copy (C. 1^ ; 6 Vin. Abr. Cop. (E.^ pi. 1. iv) R. V. Cburchill, 4 B. & C. 750.» (s) R.'v. Watson, 5 East, 481 ; S. C, 2 Smith, 45. {a) R. V. Dersingham, (Inhab.) 7 T. R. 671. (fc) R. V. Watson, sup. recognizing R. v. Aberavon, (Inhab.) 5 East, 453. (c) R. V. Tewkesbury, (Burgesses, &c.) 13 East, 155. (d) 1 Dougl. 302. (e) 1 T. R. 338. (/) Ellis v. Fermor, GwiU. 1022. is) GwiU. 1027 ; Toller on Tithes, p. 89 ; Hatfield v. Rawling, Gwill. 1030, n. (A) Toller on Tithes, p. 89, et seq. (i) R. v. v. Dersineham, (Inhab.) 7 T. R. 671. (k) 1 T. R. 361. »Eng. Com. Law Reps. x. 457 INTEREST or THE LORD. 209 a stinted common of pasture, and also a right to cut peat for his o\to use, and get limestones, &c. on a moor, yet had never exercised the first of these rights, or ever had any cattle with which to exercise the right, it was held that he had not such an estate as would make him irremovable under the 13 & 14 C. 2.(/) 313. At common law it seems there could be no distress of cattle on a common, but the 11 G. 2, c. 19, s. 8, authorizes a landlord or other person on his behalf to seize, as a distress for arrears of rent, any cattle or stock of their tenants feeding or depasturing upon any common appendant or appur- tenant, or in any way belonging to all or part of the premises demised or holden. HI. ):utcrrst.s of the ?iortr anU ffcmmoiicr- § 314. Interest of Uie Lord in tlie Soil. 315. Power to g^rant Part of Common. 316. Lord's Right of Common, Ag-istmcnt of a Stranjrer's Cattle. 317. Riffht to distrain Cattle Damaje Feasant. 318. Rig-ht to keep Conies, &c. Right to dig and work Mines, «fcc. 319. Right to approve. 320. Who may approve. Extent of the Right 321. Subjects of Approvement, Sutficiency mast be left for Com- moner. 322. Manner of Approving. § 322. Building on the Waste, 323. To depasture only. Commoner cannot meddle with the Soil. 324. Remedies for the Commoner against the Lord. In case of Surcharging. In case of Inclosore. 325. Cannot abate Nuisance, when. Cannot distrain for Damage &asanL 326. Right to exclude Lord, when. 327. Commoner's Remedies againstStran gers. 323, Commoner's Rights'not to be abridg- ed. " ' *1. Interest of the Lord. [ *283 ] 5 314. The lord of the manor has the sole interest in the soil of the common,(l) but the interest of the lord and the commoner in the herbage are considered as mutual :(m) a prescription or custom, therefore, to exclude the owner totally from all manner of profit is void, as unreasonable and against the nature of common, it being implied in the first grant, that the lord should have his reasonable profits there :(/?) and if the owner of the soil grants to another common scms nombre there, yet the grantee cannot use the common with so many cattle that the grantor shall not have sufn- cient common for his own;(o) but one may prescribe or allege a custom to have solam vesfuram terrse, from such a day to such a day, and exclude the owner,(/)) and so one may prescribe to have separalem pasturam ;[q\ how- (/^ R. V. Warkworth, riahab. 1 M. & S. 473. (m) 2 Comm. 35. (n> 15 E. 2. Prest. 51 ; 12 H. 8. 2 ; 1 Inst, 122, a. (o) 12 H. S. 2 ; 2 Roll. Abr. 396 ; S. P., Roll. Rep. 365. ( p) 1 Inst. 122. {q lb. ; but see Kenrick v. Pargiter, Ytlv. 129 ; S, C, Xoy, 130 ; 1 Brownl. 18 ; Potter (1) Wellington v. Petitioners, 17 Pick. 91. 210 crabb's law of real property. ever, notwithstanding this prescription, the lord is not excluded from other profits, as mines, trees, &c.(r) -, But if a tenancy escheat to the lord his common shall *not increase L J on that account, for common is appendant to the demesnes and not to the services. (s) So, the lord may exercise an entire dominion over the soil subject to the commoners' rights, (f) and the rights of the common may be so subservient to the rights of the lord in the soil, that the latter may dig clay pits there, or empower others so to do, without leaving sufficient herbage, if it can be proved that such a right has been constantly exercised by the ]oxd.(it'j 315. So, the lord by prescription may, with the consent of the homage, grant a part of the common to be built upon.(i;) And this is independent of the Statute of Merton.(zt») So, it may be a valid custom for the lord, with the assent of the homage, to grant parcels of the waste to be holden by copy of court roll, and for the grantees to inclose the same and to hold them in severalty freed from all common of pasture and turbary against the com- moners, and in exclusion of their rights •,{x) but a custom for the lord to grant leases without restriction, so as to annihilate the rights of the com- moner, is bad in law.(^) 316. Where the lord's right is not limited by prescription he may put in any number of cattle he pleases, so that he leave sufficient for the com- moners, and he may even surcharge any surplus there may be of common beyond what the commoners have a right to ;(z) but he cannot, without a prescription, agist the cattle of a stranger upon the common ;(^z) aUhough , -, he may by deed license a stranger *to put in his cattle, leaving suf- L -' ficient for the commoners. (a) If the lord alien the fee, saving his power of feeding as lord, he shall have common •,{b) but it is otherwise if he ahens without any saving, yet his alienee shall have common ;(c) and if he grant a right of common in a cer- tain place, he cannot even erect a rick there. (fZ) 317. The interest of the lord in the soil is such as to entitle him to dis- train, as for damage feasant, the cattle of any one who has no right to common there, even though he have not any interest in the herbage, and he may likewise have an action for every other trespass, hoAvever small ; while the commoner on the other hand can maintain none but for such tres- passes as are detrimental to his interest, (e) V. North, 1 Saund. 347 ; S. C, 1 Lev. 268 ; North v. Cox, 1 Lev. 253 ; S. C, Vangh. 2.51 ; 2 Keb. 577; Hoskins v. Robins, 1 Ventr. 123; 2 Saund. 320 ; S. C, 2 Keb. 750 ; S. C, Pollexf. 13; S. C, 1 Mod. 74. ()•) Hoskins v. Robins, 1 Ventr. 164 ; also sup., Potter v. Nortli, 1 Ventr. 383; (s) 18 E. 3. 48. (0 Dou v. Davidson, 2 M. & B. 175. * (u) Bateson v. Green, 5 T. R. 411. (r) Folkard v. Hemmett, 5 T. R. 417, n. (iv) Boulcott v. Winmill, 2 Campb. 261 ; Lord Northwick v. Stanway, 3 B. &. P. 346. Sec also Lady Wentworth v. C'lay, Fin. Rep. 263. (x) Badcrcr v. Ford, 3 B. ) 18 E. 3. 43 ; 18 Ass. 56, pi. 4 ; Br. Comm. pi. 22. (c) lb. ; 1 Roll. Abr. 396. (d) Farmer v. Grant, Cro. Jac. 271 ; Yelv. 201. («) Hoskins V. Robins, 2 Saund. 328. INTEREST OF THE LORD. 211 318. The lord of the soil may put in the common conies and other beasts of warren 'tif) and the commoner may not kill or chase them ;(^) but the number of the conies must be reasonable ;[h) and the lord must not use his warren to the prejudice of the commoner.(j) So, the lord may work mines or dig brick earth \[j) so, he may plant trees so as not to injure the common ;(/i) and equity will not give f-^.^Q.-i the tenant relief, it being held that the *lord is entitled to the soil of L ^ the Avaste ;(/) so, the lord may make fish-ponds on the common, subject to the same restriction. (m) • So, it has been laid down as a rule on this point, that where there are two distinct rights claimed by different parties, which encroach on each other in the enjoyment of them, the question is which of the two rights is subservient to the other. It may be either the lord's right which is subser- A'ient to the commoners', or the commoners' which is subservient to the lord's. In general, one would say, that the lord's is the superior right, be- cause the property of the soil is in him ; but if the custom, established by evi- dence, shew, that it is subservient to the commoners', then he cannot use the common beyond that extent. (n) 319. The most important right belonging to the lord in his wastes is that of approvement, a right given to the lord by the Statute of Merton, (20 H. 3, c. 4,) and extended by other statutes (Westm. 2, c. 4G; 3 & 4 E. 6, c. 3, &c. ; see Dig. P. ii. tit. Commons,) by which he is authorized to inclose and convert to the uses of husbandry any waste ground, woods, or pastures appendant to the estates of his tenants, or on which they have common. At common law, it seems that the lord could not approve against his ten- ants, (o)(l) it being supposed that the right of common issued out of the whole waste ;(yO) but on this point there appears to have been some diver- sity of opinion. ((/) 330. Although the lord of the manor only is mentioned in these statutes, yet it has been extended by construction to any owner of the soil;(?')(2) and if) 22 H. 6. 59 ; Bellew v. Lanjrden, Cro. El. 876 ; S. C, Ow. 1 14 ; Concj^'s cnse, Godb. 122 ; S. C, iiom. Ould v. Concye, 4 Leon. 7 ; see also Horsey v. Ilagberton, "Cro. Jac. 229 ; Hassard v. Cantrell, 1 Lutw. 38 ; Cooper v. Marshall, 1 Burr. 259 ; S. C, 2 Wils. 51. {g) Hoddesdon v. Gresil, Yelv. 104; Ould v. Concye, 4 Leon. 7. (A) Goe V. Cothcr, 1 Sid. lOG. (i) Grisell v. Leighe, W. Jo. 12. i^j) Coo V. Cawthorn, 1 Keb. 390. {k) Kirkby v, Sadgrove, 1 B. & P. 13 ; S. C, T. R. 483 ; 3 Anstr. 892. {I) V. Palmer, 5 Vin. Abr. 7. (m) Ow. 114. (n) Per Duller, J„ Bateson v. Green, 5 T. R. 416. (o) 2 Inst. 85. Ip) lb. ; and sen 2 Inst. 474. iq) See 1 Roll. Rep. 365 ; 1 Taunt. 437 ; 3 Comm. 241 ; and Dig. P. ii. tit. Common. (r) Glover v. Lane, 3 T. R. 445. (1) If sufficient be lefl for their use, it seems he may, in New York, Van Rcnssclear v. Radcliff, 10 Wend. 653. These statutes do not apply to Pennsylvania where the relation of lord and tenant never existed. Trustees v. Robinson, 12 S. & R. 33. (2) It is well settled, that a s(iuare or vacant land dedicated to public use expressly or by implication, as by a conve3'ancc bounded on a st|unrc recited to be so dedicated, Emerson v. Wiley, 10 Pick. 310, Abbott v. Miles, 3 Vt. 521, caimot be resinned or apiiroved. Id. Every other use of it becomes a nuisance. Commomvcaltli v. Albergcr, 1 Wliart. 469. Rung v. Shoeiiberger, 2 W. 23. 212 crabb's law of real property. r*2q2l ^ ^°^'^^ ^^'^^ ^^ '^^ ^^ wrong *may, by force of the Statute of Merton, L -' approve against the tenants and commoners. (s) The subjects of approvement are commons appendant and appurtenant, for the words of the statute seem to be confined to such portions of the waste as are attached to a tenement,(f) and a common by vicinage being nearly allied to the first of these, is approvable within the statute, (i/) but not a common in gross, (i)) for the lord cannot approve against his own grant. (tf)(l) So, it has been held that there can be no approver in deroga- tion of a right of common of turbary, since the lord cannot approve against his own grant, and common of turbary necessarily arises by a grant ;(.r) but if there are two distinct rights in the same waste, one of which may be approved against and the other not, the approver may take place if there be no injury to the other ;(3/) therefore, where there was common of turbary and common of pasture on the same waste, it was held, that the common of turbary would not hinder the lord from inclosing against the common of pasture ; so, where a right to take gravel was united with a right to take pasture. (2;) See further as to the construction of these acts. Dig. P. ii. tit. Commons, and the notes there. So a custom authorizing the owners of ancient messuages, after clearing certain moss dales, to approve and hold them in severalty has been sustained ;(«) so, a custom for tenants in a manor to enclose does not abridge the common law right of the lord to _j^ -, inclose ;(6) but the party who has inclosed, is *not entitled to com- L -" mon in respect of the land inclosed, (c) because he cannot prescribe for what is so improved. (rf) 321. But the lord or owner of the soil who improves, whether at com- mon law or under the statute, must leave sufficient for the other com- moners ;(e)(2) and the lord must not improve the whole land, even although he leave sufficient in other lands, 2 Co. 25; but see 3 E. 3, cited Bro. Com. pi. 52, where it was held, that where a lord had common in three vills, he might approve in the one vill, leaving suflicient in the other two. The insufficiency of common left is to be presumed where the plea states that the inclosure, no matter by whom made, prevented the full enjoyment of the common ;(/) so, the extent of the right to approve is a question for the (s) Ilamerton v. Eastoff, Clayt. 38. (0 2 Inst. 86. (it) Bro. Ass. 44G ; Smith v. How, 4 Co. 38, cited 1 Inst. 122, a.; Harding' v. Brooks, 3 Keb. 24 ; see also Dean v. Clayton, 7 Taunt. 489.' (v) 2 Inst. 475. (w) 34 Ass. pi. 11 ; cited Bro. Com. pi. 26 ; Farmer v. Hunt, Cro. Jac. 271 ; S. C, Yelv. 201 ; 1 Brownl. 220. (x) Grant v. Gunner, 1 Taunt. 435. (y) Favvcett v. Strickland, Willcs, 57 ; S. C. Com. 57. (2) Shakespear v. Peppin, 6 T. R. 741. (a) Clarkson v. Woodhoiise, 5 T. R. 412, n. (b) Duberley v. Page, 2 T. R. 932, n. (c) How v. Sirode, 2 Wils. 269. ((/} 2 Inst. 87 ; 4 Leon. 44. (e) Dy. 316 ; 2 Inst. 88 ; Godb. 117. ( Rogers V. Wj'nne, 7 D. »Sl R. 521, recognising 2 Inst. 88; and Greenhaw v. Isley, Wiiles, 619. (1) And if the lord make a colourable lease for the purpose of depriving the tenant of his estovers, thougii it would be void, and might be treated as a nullity, yet the tenant is not bound to run that risk, but may submit to the lease and take his estovers in any other lands of the lord. Van Rcnssclcar v. Bricc, 4 Paige, 174. C2) Van Rensselear v. Radcliff, 10 Wend. 563. aEng. Com. Law Reps. ii. 183. INTEREST OF THE COMMONER. 213 jury, for the right to approve depends upon the question of sufficiency hav- ing been left at the time for all the persons having right of common,(of) and if at the time of the approvement sufficiency be left, it is good, and the approvement shall remain, although afterwards it turn out to be insuf- ficient. (/j) Where a common has been inclosed for the space of thirty years, it shall not afterwards be thrown down ;(i) and if it be suggested that an inclosure is an improvement under the Statute of Merton, an injunction will be granted until the matter is determined at law. (A:) 322. The waste ground, set apart by the lord, must be divided by some inclosure or fence, for if the tenant's cattle stray into the approved part, the tenant will not be a trespasser ;(Z) but gaps will not prevent a parcel thus severed *from being considered as an inclosure ;(?>«) so, where com- r-^nqA-\ moners inclose, one who does not inclose cannot distrain cattle ■- -■ damage feasant, (n) By the Statute of Westminster 2, a power is also given to the lord to erect certain buildings there specially mentioned, as a windmill, sheepcote, dairy, court, and necessary curtilage ; and by construction this statute has been extended to a house for the habitation of the lord, or that of his shep- herd ;(o) and it seems that in this case the lord is not obliged to leave suffi- cient pasture. (p) 2. Interest of the Commoner. 323. The interest which a commoner has in the common is, in the legal phrase, to eat the grass with the mouths of his cattle ; he must not meddle with the soil, nor with its fruit and produce, not even though it may event- ually improve and meliorate the common ;(//) therefore, a commoner cannot make a trench or ditch to let the Avater off", unless there is a custom to authorize him ;(r) so, unless by special prescription he cannot cut rushes ;(.s) nor fill up coney burrows ;(^) so, he cannot cut down trees. (m) Although the lord is by presumption of law altogether entitled to the soil, yet a custom giving the commoner a right even to mines may be established, and acts of ownership for a number of years may be admitted in evidence of such a custom.(r) *324. As a rule, the lord can do no act to injure the common of ^_^q_-| the tenant, and, therefore, he cannot surcharge the common ; as, L -" (^) Arlctt v. Ellis, 7 B. & C. 346.'' {h) 2 Inst. 87. (i) 1 Vern. 32. (i) 2 Vern. 301. {I) 2 Inst. 87. (m) Paston v. Utbert, Litt. Rep. 267. (n) Wells V. Pearcy, 1 Bin^. N. S. .556;'= S. C, 1 Scott, 42G. (0) 2 Inst. 476 ; Nevill v. Ilamcrton, 1 Sid. 79 ; S. C, 1 Lev. 62 ; S. C, 2 Keb. 283. ip) 2 Inst. 476. (7) 12 H. 8, 2, a.; 2 Leon. 201, 202; Godb. 123; 1 Roll. Abr.406. (r) Howard v. Spencer, Bro. Com. pi. 48 ; 1 Sid. 251 ; 2 Bulst. 116 ; Godb. 182. (s) Bean v. Bloom, 3 VVils. 456. (t) Carrill v. Pack, 2 Bul-t. 116; Horsey v. Haybcrton, Cro. Jac. 229, recognised in Cooper V. IVIarshall, 1 Burr. 259 ; and in Sadgrove v. Kirby, 6 T. R. 483. (w) Sadgrovc v. Kirbj', sup. (rj Curtis v. Daniel, 10 East, 273. •"Eng. Com. Law Reps. xiv. 53. cJd. xxvii. 492. 214 CR abb's law of real property. when he put an unreasonable quantity of conies on the common, an action against him was sustainable. (a;) "So, if he makes approvements, it is incumbent on him to leave sufficient pasture for the commoners, and the commoner may have an action of tres- pass, or on the case, if the lord commit any excess ;(^) so, if the lord plant trees to the prejudice of the common. (2) So, if the lord by any inclosure leave not sufficient common, the com- moner may justify breaking down the inclosure, (a) as to abate a hedge or any other erection, for he does not thereby meddle with the so\\,{b) for a hedge, a gate, or a wall, to keep the commoners' cattle out is inconsistent with a grant which gives them a right to come in ;(c) but unless the lord does any act which totally excludes the commoner from the enjoyment of his rights (in which latter case the commoner may do whatever is necessary to 16° himself into the common,) the commoner can assert his right by no act of his own, because he cannot make himself a judge in his own cause. ((/) 335. On the other hand, if the commoner's right be only abridged and not totally destroyed, he must not abate the nuisance by his own act, but must resort to an action suited to the nature of the injury ;(e) therefore, when the greater part of the common is occupied by a pond, the commoner may let out the water ; sed secus, if he can get to any part of his com- mon ;(/) in this latter case he can only have an action for the injury. (/) *So, as a rule, a commoner cannot distrain the cattle of the lord [*296J ^^ terre-tenant damage feasant ; but if the lord surcharges he may have his action ,(g-) but see infra, § 325 ; so, if a man has common of esto- vers, and the lord cuts down all the wood, the commoner cannot take that which is cut, but his proper remedy is his action on the case ;(/i) but if a man claim all the thorns, &c., growing in such a place, he may take them, though cut down by another. (i) 326. The right of the commoner may by prescription be such as to ex- clude the lord, for he may have the sole common for a certain time, as after the grass is cut until Lammas-tide,(A;) and the better opinion appears to be (although it is not settled,) that if the lord in that case put in more cattle than he ought, the commoner may distrain them damage feasant ;{l) so, where the land was by custom to be entirely fresh every second year till Lady-day, it was held, that the commoner might distrain the cattle of the (x) Yelv. 143 ; Grisell v. Leighe, W. Jo. 12. (y) 2 Inst. 88. (z) Cooper V. Marshall, sup. (a) 2 Inst. 33. (/>) Mason v. Caesar, 2 Mod. 65. (c) 1 B. &, P. 15. ^^ , „ {(1) 1 Roll. Abr. 405, pi. 2, recognised in Cooper v. Marshall, sup. (e) Cooper v. Marshall, sup., recognised in Sadgrove v. Kirby, sup. (f) Carill V.Park, 2 Bulst. 116. „ ^ „ ,0,:. (V) 2 Leon. 203; Yelv. 104, 129 ; Cro. Jac. 208 ; Brownl. 187 ; Godb 182. (A) Palmer's case, 5 Co. 25 ; S. C, Cro. El. 820 ; Noy, 32 ; Moor. 691, pi. 955 ; S. P., Woadson v. Nawton, 2 Str. 777 ; Rackham v. Jesup, 3 Wils. 3.32. , „ ,^ , ,0 ((•) Dowglas V. Kendall, Cro. Jac. 257 ; S. C, nom. Dewclas v. Kendall, Yelv. 18 ; Brownl. 220 ; Bulstr. 93, 94. .. . , r, •. v t ion (/.-) Kentick V. Pargitcr, Cro. Jac. 208 ; S. C, nom. Kennck v. Pargitcr, \ elv. 12J , Nov, 130 ; 2 Brownl. GO ; Wheatland and Pain's case, 2 Roll. Abr. 267. {I) Kontick or Kcurick v. Fargiter, sup. ; sec also Hall v. Hardmg, 4 Burr. ^425 ; S. C, 1 Bl. 673. ALIENATION OF RIGHT OF COMMON. 215 lord, because during that season the lord was totally excluded, and had no colour to put any cattle there at all.(m) 327. A commoner may distrain damage feasant the cattle of a stranger, who has no colour to have his cattle there ;(n) so, in the case of an abso- lutely stinted common in point of number, one commoner may distrain the supernumerary cattle *of another ;(o) but where the number is not ^j^oq_-| absolutely certain in itself, and depends upon the number of acres, L -^ there must be an admeasurement of the land, instead of a distress ;(o) so, in the case of l^'ancy and coiichuncy, and in general when there is colour of right for putting in the cattle, one commoner cannot distrain. (o) See further as to remedies post, § 354 et seq. 328. The rights of the commoner, however limited, may be enforced in all cases where they are liable to be defeated ; therefore, if a commoner has a right of common all the year round when the land hes fresh, he cannot be abridged thereof by sowing it oftener than is usual, (/)) or by leaving the corn longer on the ground than is necessary ;(^) and he will be justified in putting in his cattle. (>•) IV. Alienation oC ^I'sUt oE €ommou. § 329. One common convertible intoanother, or otherwise. 330. What grantable over. § 331. Mode of Alienation. 332. What passes under Grants. § 329. Commons, like other property, are for the most part alienable, but the rule admits of qualifications, for in the case of common appendant that cannot be converted into common in gross, because it cannot be severed from the land without extinguishment ;(s) so, neither common appurtenant where the cattle must be levant and couchant on the land, for it is then inse- parable unless by being extinguished ;(/) *but a common appurte- ps^oosl nant for beasts certain may be granted over, and so become common, L -^ for such a grant has no connexion of tenure ;(w) therefore, where one pre- scribed in a que estate for a fold course, that is, for common of pasture for any number of sheep, not exceeding three hundred, in a certain field appur- tenant to the manor of D. ; it was held, that he might grant over this fold course, and so make it in gross, for the number of cattle being ascertained the severance is no prejudice to the owner of the land ;(a:r) so, where one (m) 30 E. 3. 27 ; Tiulock v. Wliite, 1 Roll. Abr. 405, 406. (v) Godb. 182. (0) Hall V. Hardinp-, sup. (p) Trulock v. Rigsby, Yelv. 185 ; Anon., 12 Mod. 64S. (7) 2 I,con. 202; 1 Brownl. 188; Cr(f. Jac. 271. (?) Trulock v. Riffsby, sup. (s) 4 E. 3. 4fi ; 9 E. 4. 39 ; 26 H. 8. 4, cllcd 1 Roll.^Abr. 401 ; 1 H. 7. 24 ; 5 H. 7. 7 ; Bro. Com., pi. 2S ; i=ee also Cro. Car. 542 ; Wincli. 45. (t) 19 H. 6. 33, B., cited 1 Roll. Abr. 402 ; Drury v. Kent, Cro. Jac. 14. («) 5 H. 7. 7, sup. ; Drury v. Kent, sup. ; Daniel v. Han.slip, 2 Lev. C7 ; S. C, 3 Kcb. 66. fx) Spooncr v. Day, Cro. Car. 432 ; S. C, 1 Roll. Abr. 402 ; sec 1 E. 3. 1 ; 11 H. G.22 ; 27 H. 8. 12; Perk. s. 103. 216 CRABb's LAW OF KEAL PROPERTY. claimed common in gross for a certain number of cattle, or the sole pasture of certain herbage, it was held, that he might license a stranger to put in his beasts •,{y) so, where there was a right of common appurtenant for a certain, number of cows, and it appeared in evidence that the commoners were in the habit of lettincj their rio-ht and so converting them into rig-hts of common in gross during the time of the letting, no objection was made to this mode of using the property, (z) 330. Although a common in gross sans nombre, if enjoyed in fee, may be granted over ;(«) sed secus, by grantees in tail for life, or for years ; for an unlimited license to depasture would be to the prejudice of the other commoners. (6) Estovers, which are to be spent in a house, cannot be granted over, for they are attached to the place which gives the right to take them. (c)(1) An uncertain piscary, or a common sans nombre, being an indivisible thing, cannot be divided between coparceners, therefore either the eldest sister must take the whole, allowing a compensation to the other, or there must be alternate enjoyment for a stated period. (cZ) r*2QQl *331. Commons are properly transferable by deed, as by grant, L -J bargain and sale, lease and release, (now release alone, 4 & 5 V. c. 21,) and license, or they may be devised; a grant of a common without deed has been held void ;(e)(2) so, there can be no demise by parol of a commoner ;(/) and a custom to demise a common by parol cannot be sup- ported in law, being an incorporeal hereditament ;(g) so, although a man who has an interest in the soil may license another to hunt, or enjoy other like hberties, without deed ;(/i) yet a license to put beasts into a common can be granted by deed only, Hoskins v. Robins, 2 Saund. 328 ; S. C, nom. Hopkins v. Robinson, 2 Lev. 67, and in the latter report of the case it is said that a license 7;ro hdc vie only is good by parol, but not if it were for a time certain, for that would amount to a lease. A common de novo cannot be created by bargain and sale, for the object of the sale is not in esse as it ought to be ; therefore where a copyholder having common by custom purchased the freehold of his tenement, with all (y) Hoskins v. Robins, 2 Saund. 327. («) Bunn V. Channen, 5 Taunt. 244.» (a) 21 E. 4. 84. lb) Stampe v. Burgcssc, 2 Roll. Rep. 73 ; sec 1 Ld. Raym. 407. (c) 22 E. 4. 6 ; 5 H. 7. 7. (d) 1 Inst. 164, b, 165, a. (c) Farmer v. Hunt, Yelv. 201 ; S. C, Cro. Jac. 271 ; 1 Brovvnl. 220 ; S. P., Tanner and Hobb's case, 2 Roll. Abr. 63. (/) ]Mountjoy v. Terdrue, 2 Roll. Abr. 62. («■) Lathbury v, Arnold, 1 Bing. 217 ;^ S. C, 8 J. B. Moore, 72. (/() Monk V. Butler, Cro. Jac. 574. (1) In case of descent they pass to all the heirs; but though they cannot use the riglit separately, they may by a conveyance vest the right in one person. The same principles apply .where the right is annexed to the land. Van Rensselcar v. Radcliff, 10 Wend. 630. S. P. Leyman v. Abcel, 16 Johns. 30. (2) The common lands are vested in the proprietaries of the tou-ns, and they may con- vey to individuals by vote without deed ; but if the direction be that the clerk shall make a "deed, no title passes without the deed. Rogers v. Goodwin, 2 Mass. 477; Baker v. Fales, 16 id. 497 ; Colburn v. EUenwood, 4 N. H. 104 ; Pike v. Dyke, 2 Greenl. 216. »Eng. Com. Law Reps. i. 92. ^Id. viii. 302. APPORTIONMENT OF CO 31 31 ON. 217 commons thereto belonging-, under the words " grant, bargain and sale," held, that this common, being extinguished, could not be revived without a special grant, and that it could not pass by bargain and sale, for that could only be by waj^ of use, which could not be said of a thing created de novo.{i) Commonable rights may be exchanged for land, and a release thereof by the commoner is good, but it must be by deed.(/t') 332. Things appendant and appurtenant to land will pass with the *qnnn land ;(/) so, if the lord grant common for beasts, "^levant and couch- L J ant upon his manor, or turbary to be spent therein, these will pass by the grant of the manor ;(???) or if a stranger grant all manner of estovers, house- bote, hay-bote, and plough-bote will pass \[n) but a common in gross will not pass by the name of lands and tenements ;(o) so, not under the name of all pastures ;(;;) so, where a copyholder for life had a messuage and lands, with common in the lord's waste belonging thereto, and the lord granted and con- firmed that messuage, &c., to the copyholder, with the appurtenances, it was held that the common, being extinct with the customary estate, was not re- vived by the word "appurtenances ;"(//) so, a right of common cannot be reserved in a demise under the word "land,"(r) see further as to Extinguish- ment, post, § 335. V. ^4J4)ortionmcnt of Common. § 333. Common Appendant apportionable. Common Appurtenant not apportion- able. § 333. Common sansNombre not appoition- able. 334. Other Cases of Apportionment. § 333. Common of pasture if appendant is apportionable, because it is of common right, as if A. has common appendant to twenty acres, and enfeoffs B. of ten acres, the common shall be apportioned and B. shall have common pro rata ;(s) so, although the commoner purchase parcel of the land in which the common is to be had, yet the common shall be apportioned ',{t) and if the land be divided ever so often, each parcel of land is entitled to common appendant ;(«/) but it is otherwise in case of common appurtenant, *for by purchase of parcel of the land, the common is extinct, because pj^^Qmi common appurtenant is against common right, and it is the folly of L J the commoner to intermeddle with the part of the land which does not belong to him ;(1) but when the commoner intermeddles only with his own, by ali- enation of part of the land to which the common is appurtenant, this shall not (i) Speaker v. Styant, Comb. 127 ; see also Cro. Jac. 189. (k) Litt. s. 63 ; Co. Litt. 50, b. (J) Lord Gwj'dir v. Foakes, 7 T. R. 641. (m) 1 Inst. 121, b. («) Perk. s. 51. (o) 20 Ass. pi. 9, cited 2 Roll. Abr. 57. ( p) 26 Ass., cited Id. (9) Marsham v. Hunter, Cro. Jac. 253 ; S. C., nom. Massam v. Hunter, Yclv. 189 ; S. P., Fort V. Ward, Moor. 667, pi. 915. (r) Smith v. Mihvard, 3 Dougl. 70. (s) Tyrringham's case, 4 Co. 37 b. {t) lb. (u) Willes, 230. (1) Livingston v. Ten Broeck, 16 Johns. 14. 218 crabb's law of re'al property. turn to his prejudice, because it is not against la\v;(a;) therefore, where a right of common having been granted to A. (who was seised of lands in S.) and all his tenants in S., for all commonable cattle, and A. conveyed parcel of the lands in S., held, that the alienee was entitled to common on the parcel conveyed. (y) Common sans nombre is not apportionable,(l) as where A. has common of pasture in twenty acres of land and ten of those acres descend to" A., the common sans nombre being entire and uncertain cannot be apportioned, but shall remain ; but if it had been a common certain, (as for ten beasts), in that case the common should be apportioned ; and so it is of common of estovers, turbuary, and piscary ;(z) for no prejudice can arise to the terre- tenants from common certain being divided or annexed to part of the manor, as they cannot be charged with more than they were before.(a) 334. So, if a man seized of sixty acres, prescribe to have common in other land for all his beasts levant and couchant upon it, and he make a feoffment of five of these acres, his feoffee shall have common apportionable pro rata, for the common is joint and several, and no surcharge or other wrong is done to the tenant •,{b) so, if a commoner prescribing to have com- -, mon in two yardlands for four beasts, &c. *after severance of the L -^ common, and to have common all the year when the land is not sowed, afterwards lease one of the yardlands for years, the lessee shall have the same common pro rata ;{c) so, if he who has common appurtenant to land, demise a part of the land to another, the lessee shall have common for the beasts levant and couchant .[d) VI. Evtdtfiufsftment of Clommous. § 335. When Extinguishment takes place. 1. By Unity of Possession. 336. Common Appendant. What Estates. 337. Exceptions to the Rule. 338. Common Appurtenant, when extin- guished. 339. Common in Gross. 2. By Severance. 340. Wliat will cause a Severance. {x) Hob. 235 ; Wild's case, 8 Co. 79 ; Kimpton and Bellamy's case, 1 Leon. 43 ; S. C, Gouldsb. 53 ; Cole v. Foxman, Noy, 30 ; see also Hutt. 58 ; Winch. 45; 2 Brownl. 298. (y) Sacheverill v. Porter, Cro. Car. 482. («) 1 Inst. 149, a ; Cro. Car. 432 ; Ow. 122. (a) 1 Roll. Abr. 232. (6) Wood V. Moreton, 1 Brownl. 180 ; S. C, nom. Morton and Wood's case, 1 Roll. Abr. 235. (c) Wood V. Moreton, 1 Brownl. 180; S. C, nom. Morton and Wood's case, 1 Roll. Abr. 235. (d) Wildman's case, 8 Co. 79. (1) Nor of estovers. Van Rensselaer v. Radcliff, 10 Wend. 650. Sed vide contra, Livingston v. Ten Broeck, 16 Johns. 25, 26. EXTINGUISHMENT OF COMMONS. 219 3. By Release. § 341. What kind of Release operates an Extinguishment. 4. By Approvement or Inclosure. 342. Wliere Inclosure operates an Extinguishment, or otherwise. 5. By Dissolution of the Estate. 343, Determination of Corporation. 344. Exceptions to the Rule as to the Enfrancliisement, 344. Relief in Equity. Enfrancliisement. § 335. An extinguishment of commons takes place in case of unity of possession, by severance from the land to which they belong, of a release by the commoner, of approvement and inclosure, and of dissolution of the estate to which they are attached. *1. By Unity of Possession. [*303] 336. A common may be extinguished when the whole of the land to which the common is appendant, is united with that in which the common is taken ;(1) for, in that case, a man has as high and perdurable estate in the thing claimed, as in the land out of which it is claimed ;(e) therefore, where an abbot had common in the lands of another abbot appendant to his own abbey, and both the abbeys at the dissolution of the monasteries came into the hands of the king, by such unity of possession the common was held to be extinct ;(/) but if the estate in the land to which the common is annexed is not so high and perdurable as that where the right of common exists, it is not such a unity of possession as to extinguish the common ;(«•) and it must be not only as high, but also equally perdurable, see infra, § 337. 337. So, where the common is annexed to a customary tenement, parcel of a manor, a right of common will, it seems, in that case survive, so that the lord may not be prejudiced; therefore, as in the case of a common ap- pendant, where, if a tenant of a manor purchased a seignory, and then granted over the tenancy, held that the common which he had before should still be appendant, for it was not extinguished by the unity, but should pass with the tenancy, though otherwise of a common in gross ;(A) so, where a copyhold tenement was seized into the hands of the lord, who re-granted it as copyhold, the right of common was held not to be extinct, and that, as long as the tenement to which it belonged was demisable by copj'' of court- (f) Tyrringham's case, 4 Co, 38 a, citing 24 E. 3, 25, and overruling 14 Ass. pi. 20 ; 15 Ass. pi. 2 ; see also Bro. Exting-uishment, pi. 19. 27; 2 Sid. Ill ; 4 3Iod. 363. (/) Nelson's case, 3 Leon. 123. (g) 1 Inst. 313, b. (A) Jourdan v. Atwood, 0\v. 122. (1) Ante, 301, n.l. 220 crabb's law of real property. roll, it would remain ;{i) so, if the lord of a manor *alien his waste, [■304J ,^|^^ copyholder's right of common is not gone, although the com- monable soil is devested from his person ;{j) so, where there was a manor in the king's forest, and the lord and the tenants had common in the wastes of the forest, and also in the lands of the freeholders, and at the dissolution the manor came into the king's hands, by this unity of possession the com- mon was extinct as to the lord, though not as to the copy holder, (it) If only part of the land is purchased by the commoner in which the common is, it is extinct only for that part, because common appendant is apporiionable, see ante, § 333. 338. Common appurtenant cannot, like common appendant, be extinct for part, and in esse for part, by act of the parties, (see supra, § 337,) (/) : therefore, if a commoner purchases parcel of the land in which he has com- mon appurtenant, this extinguishes all the common,(m) common appurte- nant not being apportionable like common appendant ;(?i) so, common appur- tenant to house and land is extinguished by purchase of the land.(o)(l) 339. Where the whole waste, in which common in gross sayis nombre is, comes by purchase to the commoner, it is lost 1(7)) therefore, where an abbot had a common in gross sans nombre, which, on the dissolution of the abbey, became united to the crown, by such unity of possession the com- mon was destroyed, and could not be revived in the hand of the patentee, for then any man that had any part of the abbot's possessions would have as great a common as the abbot himself had, and the king's land might be infi- *qnn"i '^it^^Y *surcharged ;((/) and if one who has common in a great field L J in which many have land, purchase an acre from one of them, all bis common will be extinct ;(r) but it has been said that common sans nombre in gross cannot be extinguished by purchase of parcel of the land ;(s) and shack or mutual common will not be extinguished by uniting of possession, because, as is said, it is for the public good that it should be used without inclosure.(/) Extinguishment is properly produced by the act of the party, for by act of law there will be no extinguishment, as the law works no injury. (^) 2. By Severance. 340. Commons are likewise destroyed by severing them from the tene- ment to which they are appendant or appurtenant, as where one aliens the (0 Badger v. Ford, 3 B. «fe A. 153.o ( j) 18 Ass. pi. 4. (A-) Itin. de Waltham, W. Jo. 349. (Z) Tyrringham's case, sup. (w) Dy. 339 ; Wild's case, 8 Co. 79 ; Morse v. Webb, 1 Brownl. 180 ; 2 Brownl. 297. (n) See Kinipton's case, Gouldsb. 53 ; S. C, nom. Kimpton v. Bellamy, 1 Leon. 44 ; S. C, nom. Rampton's case, cited Cro. El. 594; S. C, And. 159, pi. 203; see .also ante, § 333. (o) Bradshaw v. Eyre, Cro. El. 570. (p) 7 H. 6, 3. () or puts more cattle on the waste than the herbage will sustain, or the party has a right to place there, which is called surcharging,(y) or encroaching on the waste by inclosureor otherwise. (r) 349. The remedy for disseisin is ejectment, and that is the only remedy since the abolition of the assize of novel *disseisin by the 3 & 4 W. pnio-i 4, c. 27, s. 36 (see Dig. P. iii, tit. Limitations ;) but before that act L -^ ■abolishing a writ of right the lord was barred his remedy by ejectment by an adverse possession of twenty years, and must have had recourse to a a Avrit of right, (s) and now in that case he is barred from bringing any action. The remedies for disturbance are either by action, writ of admeasurement, or distress. The lord might (before the 3 & 4 W. 4, c. 27, s. 36, abolishing real actions) have brought a quo jure against a claimant putting in his cattle, but now he may bring either an action of trespass or a special action on the case, which in practice had long superseded the former writ. Another remedy for surcharge was a writ of admeasurement whereby the number and description of cattle might be reduced within their proper bounds. (/) This writ lies either where a common appurtenant or in gross is certain as to number, or where a man has common appendant or appurte- nant to his land, the quantity of which has never yet been ascertained ;(.r) this remedy, though deemed to be the most effectual, has in practice given way to the more summary and expeditious remedies by trespass or action on the case. The lord may maintain an action for every trivial trespass, because of the entry and trespass, although it is otherwise with the commoner •,{y) and it is not necessary that the owner of the soil should be actually in posse'ssion to enable him to maintain an action ;(1) therefore, where a reversioner sued his tenant, lessee of the manor, for wrongfully inclosing parcels of the com- mon, held that the action was well brought. (z) (n) 3 Comm. 237. (o) See ante, § 317. (/j) See ante, § 307. (7) 2 Lev. 87. (>) 14 East, 48D. (s) Creach v. Wilmot, 2 Taunt. 1 60, n. ; S. P., Hawke v. Bacon, 2 Taunt. 156. (0 Bract. 229 ; Flet. 262: Britt. 148. {x) 3 Comm. 238 ; see also 2 Inst. 86 ; 1 Fitzh. N. B. 12.5, D. : 1 Roll. Rep. 365 ; 2 Ld. Raym. 11«7. (?/) Sec post, § 356 ; 3 Comm. 237, (z) Oxford (Queen's College, &,c.) v. Hallett, 14 East, 489. (1) Unless it be trespass. First Parish v. Smith, 14 Pick. 297. 226 crabb's law of real property. ^ ^ *350. In the case of strangers putting in their cattle, there is no L J question as to the lord's right to distrain them damage feasant ;[a\ so, where the number of beasts which a commoner may depasture is limited, it is also settled that the lord may distrain ;(6) but where the com- moner bad a right of pasture for one ox only, and put on two, it was held, that the lord could only take the ox put on last, but if put on together then he might have his choice ;(c) but see on this point Hall v. Harding.((A It was held formerly that, in the case of appendancy the lord could not resort to this remedy until the common had been admeasured ;(e) so, it has been said that the lord could not distrain a commoner's cattle whose right was regulated by couchancy and kvancy ;[f) and so, where a man turns on his cattle under some colour of right, the lord cannot distrain, sed seciis where he has no right ;(g") so, the lord may drive the cattle of the commoner with those of a stranger to pound upon the common, in order to sever them, without a custom for so doing ;(/i) and if the cattle of a stranger be on the common he may drive them out or impound them ;(A) and if the common be surcharged, he may detain the cattle till satisfaction for the trespass without a prescription ; for distress is incident to the drift of a common, being a thing of common right for the preservation of the common. (/) As to the drift of a common, see Dig. P. i. ii. tit. Common.* As to the injuries to the lord's estate for the want of fences, there is an old writ entitled curia daudenda, now disused, when a neighbour neglected to inclose his land, but this is now dealt with as other nuisances; -, see further as to *remedies post, tit. Injuries to Things Real. L J Malicious injuries to fences generally are provided for by the Malicious Injuries Act 7 & 8 Geo. 4, see Dig P. i. tit. Malicious Injuries. 351. As a rule, injuries to the lord's waste cannot be inquired of at a leet, held, therefore, that an amercement for putting geese on a common could not be distrained for under the authority of such a court ;(/v) so, a presentment at a leet for digging coney-burrows has been quashed ;(/) but the by-laws of a leet may be enforced where there is a custom for so doing.(»;j) The jurisdiction of the Court of Chancery has been exercised in respect lo commons, not only in enforcing agreements respecting inclosures, and in aid of the lord's power to approve, (?i) but also by injunction in restraining excessive improvements ;(o) preventing injuries to young trees by the coaimoaers' cattle ;(;;) so, in cases of excessive use of turbary, (5-) and other (.7') See ante, § 317. (/i) Dixon V. James, 1 Roll. Abr. 665 ; S. P., Ellis v. 'Rowles, Willes, 633. (c) Ellis V. Rowles, sup. {(l) 4 Burr. 2496. (e) F. N. B. 123, D. (/) 3 V.'ils. 126. {rr^ lb.; sec also Slopcr v. Albin, 1 Brownl. 171 ; S. C. 2 Roll. Abr. 706; Dixon v. James, 1 Ficem. 273 ; 2 Saund., VVms. ed., 328. (A; Tliomas v. Nichols, 3 Lev. 41. (J) Bromfield v. Tcigh, 2 Lev. 87. \k) Wormleighton v. Ihirton, Cro. El. 448. (/) Ayres' case, T. Raym. 160. (m) Excester (Earl) v. Smith, 2 Keb. 367. (w) Daniel v. Ardern, Toth. 118, and other cases ; see Woolr. L. of Com. c. xxv. (") Trigg V. Payte,Toth. 175. {p) Weeks v. Staker, 2 Vern. 301 ; Arthington \-. Fawkes, 2 Vern. 356; Anon. Gilb. Eq. Rep. 183 ; S. C. Eq. Ca. Abr. 2li7, (jl) Richards v. Noble, 3 Mcr. 373. INJURIES TO RIGHT OF COMMON. 227 like matters, but equity will not interfere where the plaintiff has clearly his remedy at law.(r) 2. Injuries affecting the Bights of the Commoner, and their Remedies. 353. Injuries to the rights of the commoner may be either by disseisin or disturbance. Where a commoner is ousted of common appendant or *appurte- ^ nant, whether of pasture, estovers, or other, his remedies were L "J (before the 3 & 4 W. 4, c. 27, s. 36, abolishing assizes) by an assize of novel disseisin, or by ejectment,(s) but now by ejectment only ; and the party injured will recover seisin of estovers, although the owner has stubbed up the wood, so that there can b^ no more {[t) and as to when assize might be brought and Avhen ejectment, see 1 Freem. 447 ; 3 Keb. 738 ; 1 Str. 54 ; Adams on Ejectment, 19. 292; also further post, Injuries TO Things Real. 353. A commoner may be disturbed in the enjoyment of his common either by the lord, or by another commoner, or by a stranger. The injuries which he suffers from the lord are either an undue approvement, or making undue erections, or surcharging the common, wrongful distress, obstructing the way to the common, and the like. As between one commoner and another, the most common injuries complained of are surcharging the waste, taking unreasonable estovers, digging pits, and the like. The commoner may be disturbed by a stranger, either by his putting on cattle when he has no right so to do, or by digging or carrying away stones, clay, &c. 354. The remedies which the commoner has are either by his own act, by action, or by distress. If the lord approves without leaving sufficient common, the commoner may break down the whole inclosure ;(i<)(l) but a distinction has been taken where the commoner is entirely excluded from his common by the lord, and. where he is only abridged of his right, for in this latter case he cannot abate the nuisance or redress himself by his ov/n act ;(>t) *and an *„,.^-i information has been granted against copyholders for pulling down L 'J inclosures when there were sufficient gaps for them.(3/) So, where there is an excess of coney burrows, or other holes or pits on the common, the commoner cannot himself remove the nuisance, not even although his cattle fall into the pits, for he can neither kill the coneys or fill up the pits, his remedy in that case being only by action. (r) It has indeed been said that a commoner might fill up pits made by a stranger ;(«) but see contra, 1 Brownl. 228, also ante, § 323. It is, how. (r) Fines v. Cobb, 2 Vern. 116 ; v. Palmer, Mos. 169 ; S. C, Eq. Ca. Abr. 207 ; Dench v. Bampton, 4 Ves. 708. (s) Mary's ca?e, 9 Co. 112; Hob. 43. (/) Hob. 43. (m) 2 Inst. 88. (x) 6 T. R. 66 ; see ante, § 324. (v) R. V. Wyvill, 2 Mod. 66. {z Anon., 2 Leon. 201 ; Coney's case, Godb. 122. {(i) Howard v. Spencer, 1 Keb. 884. (1) Or take estovers in any other land of the lord, if he make a colourable lease to deprive the tenant of his rights. Van Rensselear v. Brice, 4 Paige, 174. 228 crabb's law of real property. ever, settled, that although the commoner may not kill the coneys put on the common by the lord, yet he may kill those that are bred in a neigh- bour's land, and cannot therefore maintain an action against the owner of the conies,(6) for conies being ftrx naturae no one has any property in them.(c) 355. So, if the lord sells the trees so that the commoner is deprived, of his estovers, he may have his action, but he cannot by his own act redress the wrong ; therefore, where one had a common of estovers in the wood of another, h'e could not take away any part of that which was cut, but should be put to his action \[d) and this applies to what is done by others as well as by the lord ; the commoner cannot himself remedy his own wrong, there- fore he cannot justify dispersing the ashes cut and burnt by a stranger, who has a colour of right, for by cutting and burning them he has a pro- perty therein. (e) ^ -, 356. The proper and usual remedy for a commoner as *against L -• the lord or another commoner is by action on the case ; but he cannot have an action for everj- trespass, for if it be so small that he has not any loss, but sufficient common remains for him, then he shall not have any redress. (/) 357. So, a commoner cannot, like the lord, have an action of trespass, for he has no ownership in the soil, 22 Ass. pi. 48, cited Bro. Com. pi. 24, Smith V. Kerap,(g-) although in this latter case, which was trespass for taking fish in a free fishery, the plaintiff had judgment, on the ground, that it should be intended that they Avere the plaintiff's own fish. In another case, where the lessee of a copyholder for life brought trespass vi et armis, for breaking his close and cutting his trees, it was held that the copyholder was as much tenant of the trees as of the land, and that if H. has all the thorns in such a place for estovers, he may maintain trespass against any one that cuts them, even his grantor, and in such case need not aver that he burnt them ;(/() this decision was affirmed in the Exchequer Chamber, but reversed by the Lords, on the ground that the tenant could not cut them ; and if the lord could not, then they must rot on the ground. (/t) A commoner can, however, in no case proceed by indictment against the the lord, but by action only.(i) 358. As to the remedies of one commoner against another, he may have a writ of admeasurement, an action on the case, or a distress against his fellow commoner, according to the circumstances. If a man be disturbed by another, who has an equal right with himself to the profits of the land; either by surcharging the wastes, taking unreason- (h) Bowlston V. Hardy, 5 Co. 104 ; P. C, Cro. El. 547; S. C, Moor. 453. (c) Hinsley v. Wilkinson, Cro. Car. 387. (awton V. Rivers, 2 IM'Cord, 447. Wriglit v. Freeman, 5 Har. &, Johns. 474. (2) To render a prescription good, it must appear, 1, there was uninterruj)trd user; 2, the identity of the thing ; 3, that it was adverse. Lawton v. M'Cord, ante, n. 1 ; and see post, § 380, n. »Eng. Com. Law Reps. viii. 7. BY GRANT. ' 233 be set out, and the way should be shown to pass from such a place to such a place, (w)(l) for a man may not go over the grounds of another, but to the right place ;(u) therefore, if a man claims a way from B, to the rectory, it is not good, for the terminus ad qucin is uncertain ;('a?) or that it goes from B. to a close adjoining to a messuage in B., without saying in what parish the close was, for though the messuage was in B., perhaps the close adjoinincr was not;(j/) *but a man who prescribes for a way through the close ^^o—i of B. need not say how many acres it contains ;(z) so, it is not ne- L J cessary to describe all the closes intervening between the two terjnini.fa) 2. By Grant. 366. A right of way is required by grant, when the owner of a piece of land grants to another the liberty to pass over his grounds to go to church or to market, and the hke;(6)(2) so, if A. covenants that B. shall enjoy such a way.(c)(3) Unless a way be appendant to land, a grant of that land will not include the way without express words ;((/) so, it will not pass under the term tenement -,[(1) but if it be appurtenant, it will of course pass under the word "appurtenances ;" therefore, if a man seised of two acres, to which a way is appurtenant, grants one acre with all ways, «S:c., the way shall be granted ;(e) but not if the way be extinct,(o')(4) unless the parties appear to have intended to use the words "appurtenances," or "all ways appertain- ing," &c., in a sense larger than their ordinary legal sense ;(/j) or unless it be a way of necessity which will pass without words of grant ;{() or that there had been a long period of previous enjoyment of the way.(y) So, by the words "all ways thereunto appertaining," in an underlease, a way over the soil of the original lessor will not pass, because the original owner only has the right of demising all ways appertaining to his property ;(Jc) but it (w) 39 H. 6, 6. ^ (c) Hob. 190 ; see also Coble v. Allen, Hutt. 10. (x) Anon., 2 Leon. 10. (y) 2 Lutw. 1528. («) Bro. Chem. 6. (a) Simpson v. Lewthwaite, 2 B. »Sc Ad. 226.» (h) Holme V. Seller, 3 Lev. 305 ; 1 Ld. Raym. 75; BulL N. P. 74; Senhouse v. Chris- tian, 1 T. R. 560. (c^ Holme v. Seller, sup. {d) 11 H. 6, 22, B. (e) Staple v. Haydon, 6 3Iod. 3. See also Plowd. 170. (^) Sandeys v. OlifF, 31oor. 467 ; Grimes v. Peacock, 1 Bulst. 17 ; see also WhaUey v. Thompson, 1 B. «fc P. 371 ; Clements v. Lambert, 1 Taunt. 205. (h) Barlow v. Rhodes, 1 Cr. & ]M. 439. (») Grimes v. Peacock, sup. ( 7) Hinchcliife v. Kinnoul, (Earl,) 5 Bing. X. C. 1 ;^ S. C, 6 Scott, 650. (i) Harding v. Wilson, 2 B. & C. 100 ;= S. C, 3 D. & R. 2S7. (1) Hence a prescription of a right of way across plaintiff's land, where most conve- nient to defendant, and least injurious to plaintiff, is bad for uncertainty. Jones v. Per- cival, 5 Pick. 485. (2) It ceases with the estate with which it is conveyed ; as if dower be assigned with a right of way, it exists only so long as the estate of the dowress. Hoffman v. Savage, 15 Mass. 130. (3) Or if land be conveyed bounded by a way, this is an implied covenant that such a way shall exist. This rule is confined to such ways as are actually in existence at tlie time of the conveyance, if any such there were, for the parties are presumed to have had reference to the facts. Parker v. Smith, 17 Maes. 416. (4) Nor if the way had been used by a tenant for years, under an express provision in the lease. Gayetty v. Bethune, 14 Mass. 54. »Eng. Com. Law Reps, xxiii. 59. ''Id. ixxv. 9. 'Id. ix. 39. ^4 crabb's law of real property. r*Qor"i i^'g^t^ Ji^ that case have *passed by the words "heretofore used ;"(/)(!) L ^-^ so, if by such an underlease a way be granted without specifying any breadth, akliough specified in the originallease, the under-lessee shall have a convenient way only ;(A so, where there was a covenant in a demise for contributing with other occupiers of the lessor's property to the keeping up paths, &c., used in common by them, and it was proved that the plaintiff had always used the path in question, and that there was no other path to which the covenant could apply, it was held, that it might be inferred, par- ticularly from the use of the word "common," that the defendant took the soil demised to him subject to the plaintiff's right of way.(m) Where, on the words of a grant in a lease, it is uncertain which of two ways is intended, parol evidence will be admitted to show which the grantor intended to grant ;(n) but not evidence of the acts and declarations of the parties, as showing where the way was intended to be ;(n) as to the pre- sumption of a grant from user, see post, § 380. But there is a distinction between a grant of land where a way is appen- dant, and a grant of a way in gross, for in the first case a way would pass in a parol lease for less than three years, (o) because whatever is incident to land will pass under the name of land ;(o) but in the second case it goes Vv'ith the person, and can take effect by deed only.(;;)(2) 367. A grant is always construed most strongly against the grantor ; therefore, if a man grant premises with all ways, such ways as are ordina- rily used shall pass ; as if one seized of B. and W. use a way through W. to B., and then grant B. with all ways, the way through W. shall pass ;{q){3) and this will be deemed to extend to every part of the demised premises, although no express mention be made of them in the lease ; therefore, where r*qo7-i tiy ^ lease certain houses, *with a piece of ground which was part L -' of an adjoining yard, were demised to a tenant, and all ways with the said premises, or any part thereof used or enjoyed, the lessee was held entitled to a right of way to every part of the yard, such yard having been, at the time of granting the lease, in the occupation of one person, who had always used and enjoyed the same right ;(?') so, if a man seised of Black- acre and AVhiteacre, uses a way through Whiteacre to Blackacre, and after- wards grants Blackacre with all ways, this way through Whiteacre shall pass to the grantee. (s) (4) (Z) Harding v. Wilson, 2 B. & C. 100 p S. C, 3 D. & R. 287. (m) Oakley v. Adamson, 8 Biii< S. C, 2 M. <& Rob. 244. (->) Onlcy v. Gardener, 4 M. &. W. 497. (c) Bright V. Walker, sup. i>Eng. Com. Law Reps, xxxii. 634. 'Id. xxxLx. 229. ^id. xxxviii. 31. 344 CRABb's LAW OF REAL PROPERTY. 2. Extinguishment by Unity of Possession. 384. In case of Purchases, &c., of the i 386. Unity of Possession under the Pre- Land 385. New creation of a Way, 386. Ways of Necessity not extinguished scription Act. 387. A private Right of Way not merged in the Public Right. 388. Right not destroyed by alteration of Estate 3. Extinguishment of Ways under Acts of Parliament. 389. Inclosure Acts. | 390. Highway and Turnpike Acts r*340] *1. Loss by Non-user, S,'c. § 382. A right of way may be lost or destroyed either by non-user, or by a change of the thing in respect of which the right is claimed. A right of way, like a right of common, is something collateral to the land, and therefore not regularly divested by non-user; but as from long user of a right of way a grant might be presumed, (6) so, from a long for- bearance to exercise the right, a release might be presumed ;(c)(l) and as the right could only be acquired by twenty years' enjoyment, so it ought not to be lost by disuse for a less period. (f/)(2) 383. It has long been settled that circumstantial variations will not destroy a prescription ;(3) therefore, a prescription to take water was not destroj'^ed by changing a fulling-mill to a grist-mill, provided no prejudice thereby arose by diverting and stopping the water, and rendering it different from what it was before ;(e) see also as to estovers, ante, § 299. So, a pre- scriptive right of way to a public towing-path on the banks of a navigable tide-river, is not destroyed by that part of the river adjoining the towing- path having been converted by statute into a floating harbour, although such towing-path was thereby subject to be used at all times of the tide, whereas before it was only used at those times when the tide was sufficiently high for the purpose of navigation ;(o-) and such prescription is not destroyed by a clause in the statute, whereby the undertakers of the work were authorized to make a towing-path over the land, comprising the towing-path in ques- tion, on paying a compensation to the owner of the soil.(^^) - *384. Ways may be extinguished either by unity of possession. I -' or under acts of Parliament. (6) See ante § 180. (c) Doe V. Hildcr, 2 B. .t C. aCO." (7) James V. Plant, 4 Ad. & Ell. 7G1 ;' S. C, nom. Plant v. James, 2 N. &, M. 517. (r) ("anham v. Fish, 2 Tvrw. lof). (s) Tliomas v. Thomas, 2 Ci„ M. & R. 34 ; S. C, 5 Tyrw. 804. (/) James v. Plant, sup. C") Anon., Dy^ 295. (1) Manning v. Smith, 6 Conn. 291. hEng. Com. Law Reps. xiv. 42. Id. xxxi. 170. INTERRUPTION OF THE RIGHT. 249 right; and that this convention between the two sisters, would *ope- ^ rate on the part of her who posessed the way as a new grant ;(a:) L J so, where two closes, one where a right of way existed, and the other to which it was appendant, became the properly of an individual who devised the latter with the "appurtenances," held, that this word must be confined to an old-existing right, and had any right passed by this devise, it must have passed as a new easement ;(- -' will amount to an interruption unless acquiesced in for a year;(c) where, therefore, an easement has been enjoyed for nineteen years and a fraction, the right may still be acquired under this act, if an action be brought for an interruption at the end of the twenty years, for the interruption was not acquiesced in for a whole year, so as, under this act, to defeat the twenty years' user ;(c) and where a right of way has once been established by clear evidence of enjoyment, it can be defeated only by distinct evidence of inter- ruptions acquiesced in ; an unsuccessful attempt from time to time, on the (r) 21 E. 3. 2 ; 21 Ass. pi. 1, cited in Bro. E;{tinguishment, pi. 15. {y) Whalley v. Thompson, 1 B. & P. 371. («) Headlam v. Hedley, Holt, 46. (a) Keymer v. Summers, Bull. N. P. 74. (b) 2 Roll. Abr. 140. 341. (c) Onley v. Gardiner, 4 M. & W. 497. (1) Query whether an erection of gate be a disturbance. Capers v Wilson, 3 M'Cord, 174. 250 crabb's law of real property, part of the occupier of the land over which the way ran, to interrupt such right will not be sufficient to get rid of it.() 2B.&.C.910.f (c) Per Parke, B., in Arkwright v. Gill, 5 M. & W. 220. (d) Per Denman, C. J., in Mason v. Hill, 5 B. Sc Ad. 24;- citing Rutland (Earl) v. Bowler, Palm. 290, where this same position is laid down. (1) Merrit V. Parker, 1 Coxe, 465. Beisoll v. Sholl, 4 Dall. 211. (2) This right cannot be tiken away even under the authority of the legislature and consent of the owner of the land above the person injured. Gardner v. Newburg, 2 J. C. R. 162. Cooper v. Williams, 4 Hamm. 286. (3) Merrit v. BrinkerhofF, 17 Johns. 320 ; and the application of the water to any pur- «Eng. Com. Law Reps, xxvii. 11. ^Id. ix. 269. RIGHT TO WATER AND WATER-COURSES. 253 401. In accordance with the principles as above laid down, it had been held in Bealey v. Sha\v(p) that the owner of land through which a river runs cannot, by enlarging a channel of certain dimensions through which the water had been used to flow before any appropriation of it by another, divert more of it, to the prejudice of any other landowner lower down the river, who had before such enlargement appropriated to himself the surplus water which did not escape by the former channel; for "the general *rule of law as applied to this subject is, that, independent of any ^ particular enjoyment, used to be had by another, every man has the <- -^ right to have the advantage of a flow of water in his own land without dimi- nution or alteration. But an adverse right may exist founded on the occu- pation of another.(l) And though the stream be either diminished in quantitjr, or even corrupted in quality, as by means of the exercise of certain trades, yet if the occupation of the party so taking or using it have existed for so long a time as may raise a presumption of a grant, the other partv whose land is below must take the stream, subject to such adverse right."(/)(2) 402 In Saunders v. Newman, (g-) it was held that the occupier of a mill may maintain an action for forcing back water and injuring his mill, although he had not enjoyed it precisely in the same state for twenty years ; and, therefore, it was no defence to such an action, that the occupier had within a few years erected in his mill a wheel of different dimensions, but requirinar less water than the old one. " When a mill has been erected upon a stream for a long period of time, it gives to the owner a right that the water shall continue to flow to and from the mill, in the manner in which it has been accustomed to flow during all that time. "(A:) " If a person stops the current of a stream which has immemorially flowed in a given direction, and thereby prejudices another, he subjects himself to an action ;"(/) as to the period of enjoyment necessary to give this right, see infra, § 415 ; and as to the manner of enjoyment necessary for maintaining the right, see infra, § 418 et seq. 403. In Wright v. Howard, (/c) it is laid down : "The right to the use of water rests upon clear and settled principles ; pritnd facie, the proprietor of each bank of a stream is *proprietor of half the land covered by the stream, but there is no property in the water. Every proprietor L ^^"^J has an equal right to use the water which flows in the stream, and conse- quently no proprietor can have a right to use the water to the prejudice of any other proprietor. (3) Without the consent of the other proprietors who (e) 6 East, 208. (/) Per Ellenborough, C. J., in Bealey v. Shaw, sup. (^) 1 B. & A. 258. (A) Per Abbot, J., lb. (i) Per Bayley, J., lb. (k) 1 S. & St. 190. pose does not confine or narrow tlie right to the natural flow, but the party may recover for an infringement of his right, even though no injury arises to his present modeof apuli- cation. King v. Tiffany, 9 Conn. 162. ^^ (1) Post. 360, as to adverse possession. (2) Howell V. xll'Coy, 3 Raw. 256. (3) Arthur v. Case, 1 Paige, 447 ; Vandenburg v. Van Bergen, 13 Johns. 216—17. November, 1846. — 17 254 crabb's law of real property. may be affected by his operations, no proprietor can eitiier diminish the quantity of water which would otherwise descend to the proprietors below, or throw the water back upon the proprietors above. Every proprietor who claims to throw the water back above, or diminish the quantity of Avater which is to descend below, must, in order to maintain his claim, either prove an actual grant or license from the proprietors affected by his operations, or must prove an uninterrupted enjoyment of twenty years. (A 404. The opinions expressed in Williams v. Morland,(7n) and Liggins v. Inge,(n) respecting the common right to water, were supposed at one Imie to be at variance with the doctrine laid down in the preceding cases ; but it is said that "the object of the judgment in IVIason v. Hi]l,(o) was to set right the mistaken notions which had got abroad in consequence of certain dicta in Williams v. Morland,(jo) that flowing water \s publici juris, and that the first occupant of it for a beneficial purpose may appropriate it,"(9) it being by that case established that the position in the two former cases is correct, with this qualification only, that by such appropriation no greater right is claimed than to a flow of water in its usual and accustomed course, and it is settled that no appropriation except for such a period as will confer an ease- ment, can diminish the natural rights of other parties. pj^„__-, 405. Running water is the subject of easements of *different L -^ kinds : as a right to receive a flow of water in its accustomed coarse, a right to interfere with that course, a right to discharge water either in its natural state or changed in quantity or quality, a right to water cattle at a stream or pond filled by a stream. The easement of receiving water in its accustomed course, is that sort of easement commonly claimed under the name of a water-course, which has caused so much discussion. (r)(l) 406. A right to discharge water on another's land has been recognised in several cases. (2) Thus, a right may be acquired to throw back upon the land of proprietors higher up the stream the water which, unless so forced back, would naturally pass from it ;(s) so, a right to let off upon the neigh- bouring land, water which had been used for the precipitation of minerals, and was thereb}'- rendered noxious ;(/)(3) so, although every man is bound to construct his house so that it should not overhang his neighbour's pro- (/) Per Sir J. Leach, V. C, lb. (m) 2 B. & C. 910 ;'• S. C, 4 D. & R. 583. (n) 7 Bin<^. 682 ; 5 M. & P. 713. (o) 5 B. &. Ad. 24.^ (p) 2 B. & C. 910." (V) Per Parke, B., in Arkwright v. Gcll, 5 M. & W. 220. (»•) See ante, ^§ 31)9, 404 ; also Fr:inkum v. Falmouth, (Earl) fi C. & P. 529.« (s) Saunders v. Newman, 1 B. & A. 258. (t) Wright v. Williams, 1 M. &, W. 77. (1) Tyler v. Wilkinson, 4 Mason, 403. This rig^ht is not diminished by user in a particular manner; and an action will lie though all tiiat is necessary for such user remains. King v. Tiffany, 9 Conn. 162. Bud- dington v. Bradley, 10 Conn. 213. (2) Increasing a natural discharge is an injury. Merrit v. Parker, Coxe, 465. So if the water be detained for a time and then let down in unusual quantities. Rlcrrit v. Brinkcrhoff, 17 Johns. 306. Shaw v. Cumminskey, 7 Pick. 77. (3) Howell V. M'Coy, 3 Raw. 269. tEng. Com. Law Reps. ix. 269. 'Id. xx. 287. Jld. xxvii. 11. ^Id. xxv. 526. RIGHT TO WATER AND WATER- COURSES. 255 petty, and to construct his roof so as not to throw the rain-water upon the neighbouring land ;(u) yet, a right may be acquired by user, to project the wall or eaves over the boundary line of his property, and so to discharge the rain on his neighbour's land ;(a:) so, likewise, to discharge water in the neighbouring land by means of a gutter or pipe ;{y){l) but, a party receiv- ing water drained from a mine, cannot compel the owners of the mine to continue such discharge ; therefore, where certain parties constructed a sough or level, for the purpose of draining their mineral field, and the water from this sough flowed into a brook, the united waters of which turned an ancient corn-mill, after which A. obtained a lease of the brook, of the stream of water issuing from the sough into it, and of *the p*o,-«-i piece of land on which the corn-mill stood, with the right of erect- L J ing mills thereon, which lease contained a proviso, that if, during the term, the stream issuing from the sough, should, by the bringing up of any other sough, or by unavoidable accident, be taken away or lessened, so that there should not come to the mills sufficient to work them, and the lessor should not be able to supply it, it should be lawful for A. to take down the mills and remove them to another piece of ground therein described, of which a lease should be granted for the rest of the term. The sough having after- wards been drained by means of another sough, so that water supplying A.'s mills was thereby diverted, it was held, that, under the circumstances, A. had not acquired by user of the water issuing from the sough, such a rio-ht to it as to entitle him to maintain an action against the owners of the second sough, this being an artificial water-course, made for a temporary and particular purpose, and its water having been taken by him, with notice that it might be discontinued, and there being nothing on which to found the presumption of a grant by the owner of the mines, he did not acquire such right by force of the 2 & 3 W. 4, c. 71.(2') A user for twenty years, or more, would afford no presumption of a grant of the right to the water in perpetuity, for such a grant would be neither more nor less than an obli- gation on the mine owner not to work his mines by the ordinary mode of getting minerals, below the bed drained by that sough, and to keep the mines flooded for the benefit of others. (s) 407. In the absence of any special custom, artificial water courses are regulated by the same rules as natural ones,(2) and a title may be gained by user in the one case as in the other; therefore, where mine owners made an adit through their lands, to drain which they afterwards discontinued to work, and the owner of a brewery, through whose premises *the p^oK^T water flowed for twenty years after the working had ceased, had, L during that time, used it for brewing, it was held, that he thereby gained (u) 11 H. 7. f. 2.57. (ar) Thomas v. Thomas, 2 Cr., M. & R. 34. ly) Baton's case, 9 Co. 50 ; Ladv Browne's case, cited in Shury v. Pigott, Palm. 446, (?) Arkwright v. Gell, o M. fc W. 220. (1) But such right is not acquired by necessity (as from the natural formation of the ground) in case of a conveyance (partition between tenants in common) of city lots, Bentz V. Armstrong, 8 W. &. S. 40. (2) In Manning v. Smith, 9 Conn. 289, the fact that the water course on vendor's land was an artificial one, was relied on to avoid an implication of the grant of an easement to the vendee of the land to which the water flowed. 256 crabb's law of real property. the undisturbed enjoyment of the water, and that mines could not after- Avards be worked to pollute it.(a)(l) It seems to be questionable whether a universal practice in the neighbourhood, to resume the use of such adit waters for mining purposes, after a long interval, might not have been set up in answer to the claim of easement, thereby raising the inference, that the party claiming used the water not of right, but only during the acci- dental disuse of the adit, and with knowledge that the mine owners reserved to themselves a power to recommence working, and thereby disturbing the water;(a) so, the proposition that a watercourse, of whatever antiquity, and in whatever degree enjoyed by numerous persons, cannot be so enjoyed a.- to confer a right to the use of the water, if proved to have been originally artificial, was held to be quite indefensible. (a) 408. By the term water-course is usually understood a stream of water flowing above ground, but similar questions may arise respecting the right to a flow of water underground. In Cooper v. Barber, (6) where a party had for several years pushed back a stream for the purpose of irrigation, in consequence of which the water penetrated through the neighbouring soil, it was held, that no right to cause such percolation was acquired by the user, and the adjoining owner, on sustaining any injury from it to his newly erected house, might bring an action ; but in Balston v. Bensted,(c) it was held that after twenty years' uninterrupted enjoyment of a spring, an absolute right to it is gained by the occupier of the close in which it issues above ground, and the owner of the adjoining close is not justified in cutting a drain, whereby the supply of water to the spring is diminished. (2) ^ *409. In the case of a navigable river, the presumption is thar C -1 the soil is vested in the crown, yet a subject may claim a prescrip- tive right to a several fishery in an arm of the sea, even against the crown -,{(1) and may, by grant(3) or prescription, have the interest in the water and soil of navigable rivers, as the city of London has the soil and property of the Thames by grant ;(e) so, special rights in the water have been acquired by way of easement to properties ;(/) but a man cannot pre- scribe to have a necessary casement in the land of another, for himself and his servants to catch fish in his several fishery,(^) for it is there said that though the word easement is known in law, yet in this case the thing itself is set forth, that is, to catch fish, &c., and certainly no instance can be given for such a liberty by such a word or name,(o-) see further as to fishery, ante. § 104 et seq. ; also common of piscary, ante, § 304. 410. A right in the occupier of an ancient messuage to water his cattle (a) Magor v. Chadwick, 11 Ad. & E. 571 ;>- S. C, 3 P. & D. 367. (6) 3 Taunt. 99. (c) 1 Campb. 463. Id) Oxford (Mayor, &c.) v. Richardson, 4 T. R. 439. (e) Dav. 56. (/) 12 East, 429. (g) Peers v. Lucy, 4 Mod. 362. (1) Belknap v. Trimble, 3 Paige, 377. (2) Smith V. Adams, 6 Paige, 442. (3) But a license so to use a navigable stream is subject to the right of the legislature to make subsequent grants without compensation. Monongahela v. Koons, 6 W. & S. 11^. •^Eng. Com. Law Reps, xxxix. 169. RIGHT TO WATER AND AVATKR-COURSES. 257 at a pond, and to take the water thereof for domestic purposes, is a mere casement, and not a profit a prendre in the soil of another. Such a right may be claimed by reason of the occupation of an ancient messuage, with- out any limitation as to the quantity of water to be taken ;(/i) so, there may be a right to land and mend nets on another man's ground ;(i) and the acquiescence of the owner may be presumed from circumstances/A *II. ^0^ CiclfmCtJ. [*359] §411. How it may be prescribed for. How-claimed by custom. 412. Must be by Deed. 413. Grant implied or presumed. 414. Effect of Acquiescence. 415. Upon what length of enjoyment the Presumption is raised. 416. What passes under a Grant, What necessary to the validity of a Grant. 417. Effect of appropriation. 1. By Prescription or Custoyn. . § 411. A right to water may be claimed by prescription or custom, by grant, and by appropriation. An easement in respect of water may be claimed, if not by direct pre- scription, at least by custom. It is said, "A water-course doth not begin by prescription, nor yet by assent, but the same doth begin ex jure naturae^ having taken this course naturally, and cannot be averted ;"(A') yet it may be claimed by prescription, but if a man prescribe generally for a water- course, and it turns out in evidence that the water has not always run to the plaintiff's house, it has been held that he had failed of his prescrip- tion ;(A;) so, it may be alleged as a custom to have a water-course or a wash- ing-place in another man's ground ;(/) and although a multitude cannot pre- scribe, yet for an easement they may plead custom ;(?n) but the stanners of Devonshire are not entitled by custom to divert water from streams running into their mines, and for that purpose to dig trenches over other people's lands, (nj 2. By Grant. [ *360 ] 412. A grant either express or implied is for the most part the founda- tion of the right to water, but it requires a deed to create a right and title to have a passage for water ; therefore, Avhere one declared in case for obstructing a water-course upon his possession of a mill with the appur- tenances, and that by reason of such his possession he had a right to the use (A) Manning: v. Wasdale, 5 Ad. & Ell. 764 ;= S. C, 1 N. & P. 173. (i) Pain V. Patrick, 3 Mod. 294. ( j) Gray v. Bond, 2 B. &, B. 667 ;'J S. C, 5 J. B. Moore, 527. {k) Per ^yhitlock, J., Murgatroid v. Law, Carth. 117. {I) 3 Mod. 294. (m) lb. see also Goodday v. Mitchell, Cro. El, 441. (n) Bastard v. Smith, 2 xMoo. & Rob. 129, i^Eng. Com. Law Reps. xsxi. 433. ''Id. vi. 308. 258 crabb's law of real property. of water running in a certain tunnel, such allegation is not supported by proof that the tunnel was made on the defendant's land, which he had •Bgreed by parol to let the plaintiff' have for a certain consideration, because the plaintiff had not the water by reason of his possession of the mill, but by parol license, or contract. (o)(l) A right of way, or a right of passage for water, (where it does not create an interest in land,) is an incorporeal right, and stands upon the same foot- ing with other incorporeal rights, such as rights of common, rents, advowsons, &c., it lies not in livery but in grant, and a freehold interest cannot be created or passed otherwise than by deed ;(p) so, where a subject is owner of a several fishery in a navigable river, where the tide flows and reflows, granted to him (as must he presumed,) before Manga Charta by the description of separalem plscariam, it being an incorporeal hereditament, a term for years cannot be created in it without deed.(5') 413. A grant may be implied from long user;(2) therefore, where a bill was brought to quiet the plaintiff in the enjoyment of a water-course to his (o) Fentiman v. Smith, 4 East, 107. (p) Hewlins v. Skeppam, 5 B. & C. 221. » Iq) Somerset (Duke) v. Fogwell, 5 B. & C. 875." (1) But the riglit to convey water through the land of another is tangible, and eject- ment would lie; and when the agreement though parol,, is executed, it is not within the statute of frauds. Le Fcvre v. Le Fcvrc, 4 S. & R. 241. (2) With regard to tlie right conferred by a user which is adverse to another, and for which an action would at any time lie, there appears to be no difference of opinion ; and the statute of limitations applicable to titles to land furnishes an analogous rule for pre- suming a grant of the right thus used. But the right of a party resulting from a lawful user, not adverse in its character, and for which no action would lie by any one, is the subject of conflicting decisions ; all, however, professing to be based upon the same rule of law, to wit, the presumption of a grant. The facts of tlie cases are nearly identical. The owner of land, through which a stream ran, erected a dam and used the power thus acquired for more than the period required to perfect a title by adverse possession, in no way, however, trespassing on the right of another. The owner of the land lying above on the same stream, erected a dam on his land ; and the question was simply whether the erection and use of the first dam gave a right by prescription to the owner below as against all other owners of the land, over which the stream ran. In Ingraham v. Hutchinson, 2 Conn. 584, it was held that it did ; though the argument was strongly urged that tliere had been no user adverse to the supra-riparian right, nor any user of any thing tliat was his, or that he was competent to prevent. But the Court considered there was a prescrip- tive right to the flow of the water, as it had continued for twenty years. Gould, J., dis- sented on the ground urged at the bar ; and two of the judges concurred, solely on the authority of Sherwood v. Burr, 4 Day, 244. That case, however, was a clear one of adverse possession, by throwing the water on plaintift''s land or mill-wheel, by means of a dam, which had been done for tlie analogous statutory period. In Colburn v. Richards, 13 Mass. 420, the same principle is recognised as that in 4 Conn. ; but there was a diversion of the stream by an artificial erection, which gave a right of action, independent of the user for mill purposes. Cook v. Hale, 3 Pick. 269, is to the same effect. The remarks of Mr. Justice Story, in 4 Mason, 397, if they countenance this view, arc entirely contrary to the general principle laid down by him in 7 Wheat., hereafter noticed ; and the case itself is apparently one of adverse user. On the other hand it has been ruled in Hoy v. Sterret, 2 Watts, 327, — and the positions of Mr. Justice Rogers appeared to contain all the argument on the subject, — that no lapse of time, merely, gives any right as against another riparian proprietor, for, 1. Mere occu- pation gives no right as against a person wlio at tliat time had title ; all the American cases agree with this. 2. Unless such occupation be continued so long as to aflTord a pre- sumption of a grant. 3. Which can only arise where there has been an adverse user. 4. This can only be where the user would have subjected the party to an action by him against whom a right is to be thus acquired. "Eng. Com. Law Reps. xi. 207. ^Id. xii. 395. , RIGHT TO WATER AND WATER- COURSES. 259 house and garden through the ground of the defendant, and it appeared that the water-course had been enjoyed for a great length of time, it was held, that it should be presumed that the owner of 'the house had a right to the water- course, unless the other party *could shew a special license, or an ps:.3g|-| agreement to restrain it in point of time ;(r) so, where a plaintiff had L been in possession of a water-course for upwards of sixty years, and the defend- ant claimed the land through which the water-course ran by virtue of a for- feited mortgage, the plaintifl^'s title being proved, and also the fact that the defendant had cut a channel through his own lands, and set up a sluice, whereby the water-course had been diverted, the Court in this case decreed for the plaintiff without sending him to try his right at law.(s) 414. So, the knowledge of the owner of the land and his acquiescence may be presumed from circumstances ; thus, when the lessees of a fishery had pablicly landed their nets on the shore at A. for more than twenty years, and had at various times dressed and improved the landing-place, and both the fishery and the landing-place at one time belonged to the same person, but no evidence was offered to shew that he, or those who under him owned the shore at A., knew of the landing of the nets by the lessee, it was held, that it was properly left to the jury to presume a grant of the (»•) Finch V. Resbridger, 2 Vern. 390. (s) Id. 3!)1, n. 1 ; see also Bush v. Western, Free. Ch. 530. I Other cases support this view of the rule :— thus, in Hurlbut v. Leonard, Brayt. 201 , it is said the prescription does not commence from the erection of the dam, but from the flood- ing of the land of tlie other party by means of the dam. Hathorn v. Stinson, 3 Fairf 183, followed Hoy v. Sterret, and assumes the same position, without reference to it, how- ever, and, indeed, making tlie principle still more plain ; for there being a statute forbid- ding actions, unless there be actual damage from flowage by a mill-dam, it was held, the period to found a presumption did not commence until an actual damage had been sus- tained, so that an action might have been brought. Indeed, unless there be some other ground on which to base the decision than the presumption of a grant, the raising of such a presumption, from a mere lawful user of tlie party's property, is so contrary to every authority, that it is difficult to know how the rule should have originated, unless, per- haps, in some ancient local statute or usage, which might be inferred from one often refer- red to as yet in force, giving extraordinary privileges to persons who will erect mills. A few references to cases on presumptions will show this. Thus, Mr. J. Story, in Ricard v. Williams, 7 Wheat. 109, says, " these apply to incorporeal hereditaments, but may be rebutted by contrary presumptions, and can never fairly arise where all the circumstances are perfectly consistent witii the non-existence of a grant." So in McCalmont v. Whit- aker, 3 Raw. 90, Gibson, C. J., says, mere neglect to use gives no right to another, unless there be an adverse user. Weston v. Adams, 8 Mass. 136, recognising this rule where there lias been no artificial erections, and Cook v. Hall, relying on their existence, countc- nances the suggestion made above. Reichart v. Scott, 7 W. 462, is to the same effect, where it was decided, possession by a party wall being lawful, could give no easement. In Coalter v. Hunter, 4 Rand. 6.5, it was said, to found a presumption of the grant of a water-right there must be an enjoyment adverse to the party, excluding the idea of being founded or continued in a loan or favour. If these principles are correct, and they can scarcely be denied, it is difficult to see how the exercise of an undoubted right of darning a stream in its course through one's own land, not diverting it from its course, can give a right against a party not affi.ctcd by such an act who otherwise had an eriual right. And it therefore appears "that the criterion to be applied in such cases, is that laid down in Hoy V. Sterrit, viz., that such erections, at whatever time they may be made, must be decided on as if simultaneous. The right acquired by the opening of a light on another's ground, which miglit otherwise be supposed to be adverse to this rule, is explained in IVIcCalmont V. Whitaker, 3 Raw. 90, where it is said, being a nuisance from the interruption of privacy, the fact that it was not abated, or an action brought within twenty years, is only to be explained by presuming a grant. 260 CRABBS LAW OF REAL PROPERTY. right of such landing to the lessees by some former owner of the shore at But before the 2 & 3 W. 4, c. 71, the acquiescence of lessees would not bind the landlord, nor that of tenants for life, the reversioner ; therefore, where A. a tenant for life with power of jointering, after executing his power, gave a license to B. to erect a weir on his (A.'s) soil for the purpose of watering B.'s meadow, then A. died, and the jointress entered, after which the tenant of A.'s farm diverted the water from the weir, it was held in an action by the tenant of B.'s farm against the tenant of A.'s farm, that r-^qpo-i ^^6 uninterrupted possession of the water for so many *j^ears, with L J the acquiescence of the tenants for hfe, would not affect the rever- sioner, (a?) 415. Before the 2 & 3 W. 4, c. 71, "Twenty years exclusive enjoyment of water in any particular manner, afforded a strong presumption of right in the party so enjoying it, derived from grant or act of Parhament ;"(y)(l) but it seems that less than twenty years' enjoyment may or may not atlbrd such a presumption according as it is attended with circumstances to support or rebut the right ;(?/) as where land is sold with a run of water upon it, the use of the water for less than twenty years will give a man title to it, be- cause the water passes with the land ;(z) so, if water has been accustomed to flow along a channel from time immemorial, and it has been appropriated, the first owner of the adjoining land on both sides who appropriates it, with- out doing injury to any one, either above or below him, acquires such a right by the appropriation that, though he may not have enjoyed it for twenty years, he may maintain an action against any owner of the lands above who wrongfully diverts the water from its ancient channel ;(a)(2) but in Prescott v. Phillip, (6) it was held that "Nothing short of twenty years' undisturbed possession of water diverted from the natural channel or raised by a weir, could give a party an adverse right against those whose lands lay lower down the stream, and to whom it was injurious, and that a possession of nineteen years, which was shewn in that case, was not sufficient ; so, altiioug-h an adverse enjoyment for the space of twenty years, &c., as against a private individual, is evidence of a grant by him, yet it is otherwise in the -^ case of a public river navigable by all the queen's subjects, for no L 3"^ J ^obstruction for twenty years will bar a public right. (c) See fur- ther as to the general law of Prescription, post, under that title ; also Dig. P. iii. tit. Prescription. (0 2 B. & B. 668 ;" S. C, 5 J. B. Moore, 527. ,(x) Bradbury v. Grimsell, 2 Wms. Saund. 175, n. (d.) ly) Per Eilenborough, C. J., in Bealey v. Shaw, 6 East, 208. («) Canham v. Fiske, 2 Cr. &, J. 126 ; S. C, 2 Tyrw. 155. (a) Frankum v. Falmouth, (Earl) 6 C. & P. 529.P ' (6) Cited in 6 East, 213, and recog-niscd in Mason v. Hill, 5 B. & Ad. 25.q (c) Vooght V. Winch, 2 B. &, A. 662 ; S. C, 7 East, 199. (1) Howell V. M'Coy, 3 Raw. 268, and then only to a reasonable quantity ; and vexatious user is a cause of action. Hov v. Stcrrett, 2 W. 332. (2) Twiss V. Baldwin, 9 Conn. 302. oEng. Com. Law Reps. vi. 308. nld. xxv. 526. sld. xxvii. 11. RIGHT TO WATER AND WATER COURSES. 261 416. It has been said that by a lease of a weir the soil passes, because the party cannot amend it without the soil.((/) But it is laid down by Lord Coke, that if a man grant aquam suam, the soil shall not pass, but the pis- cary within the water shall ;(e)(l) so, the undertakers of a navigation, in whom the soil is not vested, have a mere easement in the land through which it passes ;(/) but if land be purchased, through which a stream of water runs, the water passes with the land, and although the conveyance be silent as to the water, still the water will pass with the land.(g-) The grantor of an easement of this kind must have such an estate as will enable him to grant the privilege ; therefore, where a person has neither the legal nor equitable estate in the property in respect of which he proposes to grant an easement, the deed will be void, as where one gave hcense to an- other to continue a channel or open way through the. bank of a river, and the deed imported that the grantor and another could grant the possession of the whole of the river, in such a manner, as that the grantee could insist upon its being kept open during the term, but it afterwards appeared that other parties had an interest in the river, and that the grantors could not dispose of all the Avater, only of so much as belonged to them, it was held, that although the words of a grant be general, yet where it appears by the deed, that the grantor has a limited interest, the grant will be construed as co-extensive with and limited by the right of the grantor ; and in this in- stance it appears that the parties had not the power of creating any interest in a real hereditament, because they themselves were not ^solely r^qe^-i seised of such an hereditament, being interested jointly with others, L J and the hereditament could onlj^ be granted for a term by all the sharehold- ers, who at least must be tenants in common ; the plaintiff had neither a legal nor an equitable estate, he was only entitled to a share of the profits of the navigation; the legal estate might have been in other persons; the equitable estate must have been in the whole body of proprietors. (A) 3. By Approj^riation or Occupancy. All. From what has already been stated, it appears clear that there can be no title to watr'r by mere occupancy,(2) (see ante, § 400,) but that'continued beneficial enjoyment of a running stream is evidence of the right to have the stream run on in its accustomed course ; and no one can interfere "with such accustomed course, unless justified by some grant or license so to do, (see ante, § 399 et seq.) If a mill or other occupation of water be ancient, (rf) 1 Roll. Rep. 259. (e) 1 Inst. 4 b. (/) Ilollis v. Goldfinch, 1 B. & C. 205.o {g) Canham v. Fiske, 2 Cr. & Jer. 126. (h) Portmore (Earl) v. Bunn, 1 B. «St C. 694 ;p see also Paton v. Brebner, 1 Bligh, 42. (1) B}' the grant of the stream of a river, the riglit to the perpetual use of tlie water not merely for fishinof, but as a water power, passes. Bullen v. Runnels, 2 N. H. 255. 259. Miller v. Miller, 15 Pick. 57. Whcelock v. Thayer, 16 Pick. 63. (2) Merritt v. Brinkerhoff, 17 Johns. 320. The right of the riparian owner is measured by the difference of the level of the water between the point where the stream enters, and where it leaves his land ; and partial user or non-user in no way affects his right, unless there be an adverse user by another. M'Calraont v. Whitaker, 3 Raw. 90, ante, 9 413 n. 2. Buddington v. Bradley, 10 Conn. 319. "Eng. Com. Law Reps, viii. 62. rid. 188. 202 crabb's law of real property. it is settled that the owner may maintain an action for any obstruction ; therefore, in Cox v. Matthews, (i) it is said, « If a man has a water-course running tlirough his ground, and erects a mill upon it, he may bring an action for diverting the stream, and need not say antiquum i7iolende- num;^\k) and it appears also clear from what follows in this same case, that any appropriation of ihe water to a beneficial purpose, gives a right to have the stream run on in its accustomed course, so far at least as may t)e necessary to serve the purpose, for it then added, "upon the evidence it will appear whether the defendant had ground through which the stream ran, before the plaintifts, and that he used to turn the stream as he saw cause, for otherwise he cannot justify it, though the mill be newly erect- ed ;"(/) and it has since been laid down as a rule, " that after the erection of ^ _-, works, and the appropriation, *by the owner of the land, of a certain L -1 quantity of the water flowing over it, if a proprietor of other land afterwards take what remains of the water before unappropriated, the first- mentioned owner, however he might, before such second appropriation, have taken to himself so much more, cannot do so afterwards. (m) III. IL^oUj mnttf. § 418. Rule of Law as to User generally. 419. Special Cases : — Weld V. Hornby. Cooper V. Barber. 420. R. V. Traffbrd. § 421. Menzics v. Bredalbane. Exceptions to the Rule. In case of a Grant. 422. Change of User. 423. Other Cases of Alterations. § 418. The user of waters comprehends either the mode of using them, or the length of time that they have been used, as to which latter point, see ante, § 415. The maxim of law sic utere tuo ut allenum non Isedas, is peculiarly applicable to a water-course ; therefore, in an early case, if a man should throw down a fosse or hedge where water ran, by which a meadow was surrounded, an assize would lie ;(??) so, in a later case, it was laid down, that if one stop a stream which runs through his land, so that the land of another is thereby surrounded, this is a nuisance to the prejudice of the other party ;(o)(l) so, if one have an ancient pond, replenished by channels out of a river, it was held, that he cannot change the channels, if prejudice accrue thereby to another, although the effect would be to feed the ponds according to the usage ;(/») but if a person have ancient pits replen- ished by a rivulet, he may cleanse them, although he cannot change or (t) 1 Vent. 237. , {k) Per Hale, C. J. (/) lb. See also Dy. 248 b, cited in Luttrell's case, 4 Co. 86. (m) Per Le Blanc, J., in Bealey v. Shaw, 6 East, 219. (n) 11 H, 4, 25, 83. (o) 9 E. 4. 35. {p) Buncombe v. Randall, Hetl. 32. (1) Anthony v. Lapham, 5 Pick. 17.5. Or rendering it unfit for use by unwholsomc substances. Howell v. M'Coy, 3 Raw. 268. RIGHT TO WATER AND WATER-COURSES. 263 enlarge them ;((?) so, *the occupier of a house, who has a right to p^ggg-i have the rain fall from the eaves of it upon another man's land, L cannot put up spouts to collect the rain, and discharge it upon such land in a body ;(r) so the building of a new mill by the owner of an ancient water-course may be deemed a nuisance ;(.s) so, on the same principle, where the owner of land through which a river ran, appropriated a portion of the water by means of a weir of a given height, and a sluice of given dimensions, it was held, that he could not enlarge the sluice so as to appropriate more water to himself, to the prejudice of an owner lower down the stream, who had appropriated the surplus water to his own use.(/) 419. Wher^, under ancient deed, recognising a right in the owner of an estate to have a weir across a river for taking fish, if it appear that such weir was heretofore made of brushwood, through which it was possible for the fish to escape into the upper part of the river, it Avas held, that he could not convert it into a stone weir, whereby the possibility of escape through the weir is debarred, though in flood times the fish may still over- leap it.(?<) The enhancing, straightening, or enlarging of an ancient weir, as well as the new erection of one, for the purpose of slopping fish in their passage up the river, is treated as a public nuisance by Magna Charta, c. 23, and 12 E. 4, c. 7; and the right to convert a brushwood into a stone weir is not evidenced by shewing that, forty years ago, two-thirds of it had been so converted, without interruption, and the action for the injury having been brought within twenty years after the remaining third was so con- verted. (w) The immemorial enjoyment of water will not justify the party who possesses it doing it to the prejudice of *his neighbour, and the p*gg,y-| rule will extend to a newly erected house ; therefore, where a man L had, for many years, penned back a stream for the purpose of irrigating his land, in consequence of which the water penetrated through the soil under ground, and entered the cellar and kitchen of a dwelling-house noAvly erected, the Court decided, though not unanimously, that he had not by such user acquired a right to persist in penning back the stream to the prejudice of a neighbour, and the owner of the house might have his remedy against him. (a*) 420. A proprietor of land adjoining a river, has a right to raise the banks, from time to time, as occasion may require, upon his own land, so as to confine the flood-water within the banks, and to prevent it from overflowing his land, with this single restriction, that he does not thereby occasion any injury to the lands or property of other persons ; therefore, where an indictment against the proprietors of land adjoining a river, charged the (9) Brown v. Best, 1 Wilg. 171 ; Sec also 12 H. 4, 3 ; Preston v. Mercer, Hardr. 60 ; and Sly and Mordant's case, 1 T,con. 217. -, ^ o /-i (0 Reynolds v. Clarke, 2 Ld. Raym. 1399 ; S. C, 1 Str. 634 ; S. C, 8 Mod. 2 /2 ; S. C, Fort. 212. (s) Prince V. IMoulton, 1 Ld. Raym. 248; S. C, 2 Salk. 663 ; S. C, Carth. 386 ; S. C, 12 Mod. 131 ; S. C, Comb. 442 ; S. C, Holt, 192. (/) Bc.iley v. Shaw, sup., see § 417. (w) Weld V. Hornby, 7 East, 195. {x) Cooper v. Barber, 3 Taunt. 99. 264 crabb's law of real property. defendants with erecting mounds and embankments, whereby the waters of the river were wrongfully forced against an aqueduct belonging to the prosecutors, the proprietors of a canal, to the injury thereof, and judgment had been criven for the crown, the court awarded a venire de novo on the ground that the special verdict did not state with sufficient certainly, what was the real cause of the penning back of the water in time of flood, as, in order to shew the defendants guilty, it ought to appear distinctly, that the raisinof the fenders or embankments was not an accustomed and rightful usage, sanctioned by the ordinary right which every man prima facie has to protect his own property, provided he can do so without injury to others ; nor, whether the course which the flood-water was stated to have taken, was the ancient and rightful course which it ought to take ; and further, that it ought not to have been left in doubt whether the embankment and ^ *aqueduct had not wrongfully turned back more water upon the L -I low lands of the defendants, than was formerly collected in times of flood, (y) 421. So, the proprietor of lands along which there is a flood-stream, cannot obstruct its course by a new water-way, to the prejudice of the proprietor of lands on the opposite side ; therefore, where a proprietor of land on the bank of a river, had commenced building a mound, which, if completed, would, in times of ordinary flood, have thrown the water of the river on the land of the opposite proprietor, so as to flood them, he was restrained by a perpetual interdict, in Scotland, from the further erection of such a bulwark, and it was said, on appeal, that "it was clear, beyond the possibility of doubt, that, by the law of England, such an operation cannot be carried on.(^) But, if there be evidence of a grant, the user of a water-course in a particular manner might be sanctioned, which, but for such evidence, would be illegal ; this may be collected from Cooper v. Barber,(«) also from Alder v. Savill,(6) where it was charged against the defendants, that by a wrongful construction of their flood-gates and machinery, they had so penned up the course of a river, as to occasion an overflow of water upon the plaintiff''s farm, but it having been shewn in evidence, that the water of the mill had always flowed over the adjoining meadows, this was deemed to be evidence of a grant ; so, where a ditch anciently opened into a stream, but the owner of a mill on the stream kept the opening closed for twenty years or more, without interruption, it was held, that such user would give the mill owner a right to keep it shut, and the owner of the adjoining land would not be justified in re-opening the communication. (c) *QftQ~i *422. Again, it has been held not necessary that the mode of L -' enjoying a water-course should have always been precisely the iy) R. V. Trafford, 1 B. & Ad. 874 ;« S, C, in error, 8 Bmg. 204 ;f 1 M. &, Sc. 401 ; 2 Cr. &,J. 265; 2 Tyrvv. 201. (2) Mcnzies v. Brcadalbane, 3 Bligh, N. S., 414. 418. («) Sup. (6) 5 Taunt. 454.? (c) Drewctt v. Shread, 7 C. &, P. 465.'' «Eng. Com. Law Reps. xx. 498. ad. xxi. 272. Fid. i. 156. J-Id. xxxii. 535. RIGHT TO WATER AND WATER-COURSES. 265 same ;(1) therefore where the plaintiff, owner of a mill, claimed a prescrip- tive right to Avaler which had been accustomed to flow to his mill, and the defendant was charged with keeping a hatch-dam or mill-head at a much greater height than he had been accustomed, so that the water was obstructed from flowing in its usual channel and forced back against the plaintiff's mill, to his great injury, it appeared in evidence that the old mill had been burnt down, and the plaintiff had built the mill in question with a Avheel of the same dimensions, and on the same level with the former one, since which time he had erected a new wheel of diflerent dimensions, which re- quired less water, but there was no proof that the owner of the lower mill had received any injur}'^ in consequence of altering the wheel ; it was held, therefore, that the plaintiff might maintain an action for the injury to his mill, although he had not enjoyed it in that state for twenty years, and it was no defence to such an action that the plaintiff had, within a few years, erected in his mill a wheel of different dimensions, inasmuch as the defen- dant was not prejudiced thereby ;((/) but if the owner of a water-mill, worked by a ground-shot wheel at a low head of water, alter the wheel to a breast-shot wheel, which requires a high head of water, and after that for twenty years and more discontinue the use of the breast-shot wheel, his discontinuance will cause him to lose the right to the high head of water, (e)(2) 423. On the same principle, the change of a mill from a fulling to a grist mill or the like, where no injury was caused to any other person, was held not to destroy the easement ',[f\ so, not by a trifling alteration in the course of a water-course, as Avhere a party in order to make the enjoy- *ment of a stream that meandered more commodious to himself, ^^„^^^ varied the course a little by making the water to run in a straight L ' J line ;(o-) so, the cleansing a water-course will not subject a person to an action if the ancient channels be not enlarged, (A) for the owners of a water- course are bound to keep up due repairs and cleansings ;(z) so, in an early case it was said if one were bound to scour a ditch where the water ran, and he neglected so to do, an action of trespass lay.(y) See also 8 H. 7, 5; Morgan v. Evans, (A:) Lord Egremont v. Pulman,(/) in which last case the defendant was held liable to the reversioner in case, for the non-repair of a gutter, although the mischief had been occasioned by the reversioner's tenant. {(I) Saunders v. Newman, 1 B. &, A. 258. (e) Drewett v. Sheard, 7 C. &, P. 465.» ( f) Luttrel's case, 4 Co. 86. (g) Hall v. Swift, 4 Bing. N. R. 38.'' (h) Brown v. Best, 1 Wils. 174. (i) Lynn (Mayor, &,c.) v. Turner, Cowp. 86. O) 11 H. 4, 83. (Jt) 2 Lutw. 1515. (i) Moo. & Malk. 404.<= (1) Ante, § 405, n. 1. Blanchard v. Baker, 8 Greenleaf, 253. (2) Hazard v. Robinson, 3 Mason, 273. »Eng. Com. Law Reps, xxxii. 585. ^Id. xxxiii. 362. 'Id. xxii. 341. 266 crabb's law of rkal property. IV. H^ota aost § 424. By destroying the Tenement. By Relinquishment. § 425. No Relinquishment by Unity of Possession. 426. Extinguishment by Act of Party. § 424. The pulling down a house for the purpose of repair does not by the law of England, when construed most strictly, cause the loss of any easement attached to it, provided there is evidence of an intention to rebuild it within a reasonable time ;(m) so, a change in the mode of enjoying an easement does not destroy it.(n) But it is said that " what is gained by occupancy may be lost by abandonment ;"(o) therefore, a license given by the plaintiff, owner of a mill, to the defendant, to cut down and lower the r**??!! ^^'^^' ^^'^ *° erect a weir in a river, whereby part of the water *was L -' diverted from his mill, was held to be a relinquishment of that quan- tity of M-ater ; and after having clearly signified such relinquishment, and suffered others to act upon the faith of such relinquishment, and to incur expense in doing the very act to which his consent was given, an action was not maintainable against the defendant for continuing the weir ;(/)) and it was further said, " Suppose a person, who formerly had a mill upon a stream, should pull it down, and remove the works with the intention never to return, could it be held that the owner of other land adjoining might not erect a mill and employ the water so relinquished ? or that he could be com- pellable to pull down his mill, if the former mill-owner should change his determination and wish to rebuild his own ?"(7^) 425. Though a rent and a way may be extinguished, yet it is otherwise with a water-course, for that is a thing of necessity; therefore, in Shury v. Piggott,(/)) an action was brought for obstructing a stream of water running over the defendant's land to the pool of the plaintiffs, situate in a close which was part of the plaintiff's rectory. The defendant pleaded that the land over which the water ran, and the plaintiff's close, were both part and parcel of the manor of Markham, and that King Hen. 8, being seised of the said manor in his demesne as of fee, granted the land over which the water ran to one under whom the defendant claimed, and the question was, whether the unity of the ownership in the king had extinguished the easement ; and it was resolved by the whole Court, that the water-course was not extin- guished ;(//)(!) and it was likened to the case of a warren, or a right to drive (w) Luttrel's case, 4 Co. 86. (n) Hall V. Swift, 4 Bing. N. C. 381 ;i see ante, § 423. (o) Per Tindal, C. J., in Liggins v. Inge, 7 Bing. 682 ;= S. C, 5 M. & P. 712. (p) Per Tindal, C. J., in Liggins v. Inge, 7 Bino-. 632 ;' S. C, 5 M. & P. 712. (7) Palm. 444 ; S. C. Poph. 166 ; S. C, 3 Bulst 339 ; S. C, Noy, 84 ; S. C, Latch, 153 ; S.C, W.Jo. 145. (1) Hazard v. Robinson, 3 Mason, 272. But in the case of an artificial water-course, it has been held, the right being extinguished as an easement by unity of possession, could JEng. Com. Law Reps, xxxiii. 382.- 'Id. xx. 287. RIGHT TO WATER AND WATER-COURSES. 267 beasts to pasture in a forest, which rights are not extinguished by unity ; and so it is of a gutter, which like a water-course has a separate existence. ((/) See *also 11 H. 7, 25, where it was decided, that a customary right p,(,3.y2"| in the city of London to have a gutter running in another man's land L was not extinguished by unity of possession. 426. But " if a man hath a stream of water which runneth in a leaden pipe, and he buys the land where the pipe is, and cuts the pipe and de- stroys it, the water-course is extinct, because he thereby declares his inten- tion and purpose that he does not wish, to enjoy them together ;"(r) if, how- ever, "A man having a mill and a water-course over his land, sells a portion of the land over which the water-course runs, in such a case by necessity the watercourse remaineth to the vendor, and the vendee cannot stop it.(s) V. Dtstuvijance of tlie ^t'sUt to sst-atcr, mti the Ilcmctiies, This comprehends first the injuries, and next the remedies. I. 2rt)c Knjurfcs. § 427. Acts of Disturbance. 428. Right of Obstruction, how acquired. § 427. Any act which alters the accustomed course of the water is an obstruction. If a person stops the current of a stream which has irnmemorially flowed in a given direction, and thereby prejudices another, he subjects himself to an action ;(f) so, for stopping a water-course, by which means his land was drowned ;(z/) so, for building a mill to the hinderance of the *river ;(a:) r*37^1 so, for throwing down a weir to the injury of the plaintiff 's fishery ;(3/) L -^ so, for breaking down a pen-stock ;(z) so, for putting stake-nets in a river ;(a) (7) Palm. 444 ; S. C, Poph. 176 ; S. C, 3 Bulst. 339 ; S. C, Noy, 84 ; S. C, Latch, 153 ; S. C, W. Jo. 145. (r) Lady Brown's case, cited in Shiiry v. Piggott, Poph. 170. (s) Per Doddcridge, J., in Shury v. Piggott, supp. (t) Saunders v. Newman, 1 B. &. A. 258. («) Sly and Mordant's case, 1 Leon. 247 ; S. P., Westborne v. Mordant, Cro. El. 191. (x) Prince v. Moulton, 1 Ld. Raym. 248 ; S. C, 2 Salk. 663 ; Carth. 386 ; 12 Mod. 131 ; Comb. 442 ; Holt, 192. (y) Weld v. Hornby, 7 East, 195. (z) Cooper v. Barber, 3 Taunt 99. (a) 9 E. 4, 35. not arise as against a grantee of the land without a reservation. Manning v. Smith, 6 Conn. 291. 268 CRABBS LAW OF REAL PROPERTY. SO, for corrupting a stream of water ;(^^)(1) so, for diverting a water-course by digging pits or enlarging channels ;(c) so, for diverting a course of water to the injury of the plaintiff's mill;((/) so, for straitening a channel, by which the usual flow of the stream is interrupted ;(e) so, for making a ditch across a river. (y) 428. But every interference with a water-course claimed by another will not render the author of it liable, for when a person has been accustomed to turn a stream according to his pleasure, he may justify so doing, although it operate to the prejudice of another; this may be inferred from the words of the court in Cox v. Matthews, (g-) where it is said in reference to the plead- ings, " It would appear in evidence whether the defendant had ground through which the stream ran before the plaintiff's, and whether the de- fendant used to turn the stream as he saw Jit, for that otherivise he coidd tiot justify it ;^\h) but this applies only to private rights, therefore, although adverse enjoyment for the space of twenty years is as against a private individual evidence of a grant, yet it is otherwise in the case of a public navigable river, for no obstruction for twenty years will bar a public right.(iX2) [*374] § 429. * II. E\)z J^cmrtitcs. Wliat Remedies for Disturbance of the Right. 430. By Act of the Party. 431. Taking reasonable Care. 432. By Action on the Case. 433. Case or Trespass. 434. Right of Election. 435. By Action of Covenant. 436. By Ejectment. Assizes, &c. 437. By Arbitration. § 437. By Relief in Equity. 438. Right of Action, when given. 439. Acquired by Appropriation. 440. Parties to the Action. 441. Party creating or continuing tlie Disturbance. 442. Request to Party, not the ori- ginal Creator of the Disturb, ance. 443. Party in Possession or Rever- sion. § 429. Under this head may be considered first, what remedies may be had for disturbances of the right to water; next, what gives a right of action ; and lastly, by whom, and against whom, the remedy may be had. The remedies to be had in such cases are, either by act of the party, b}' action, arbitration, or by application to a court of equity. 430. A party entitled to a water-course may redress himself by abating (6) 13 H. 7, 26 ; S. C, cited 9 Co. 59. (c) Brown v. Best, 1 Wils. 174. {,d) 22 H. 6, 14, cited 1 Roll. Abr. 107; S. C, cited 3 Ridg. 319.^ (e) 48 E. 3, 27. ( f) Biccot v. Ward, Hob. 193. (g) 1 Vent. 237. (h) Per Hale, C. J., lb. (i) Vooght V. Winch, 2 B. & A. 662. See also Weld v. Hornby, sup. (1) Howell V. M'Coy, 3 Raw. 269. (2) Rung V. Shoenburgcr, 2 W. 23. Commonwealth v. Wiltcnbcrger, 7 W. 450. RIGHT TO WATER AND WATER-COURSES. 289 the nuisance, as if a man make a ditch in his land, by which the water accustomed to run to the mill of another becomes diminished, the aggrieved parly may fill in the ditch; and it is said that his entry into the land of the offending party is allowable for that purpose ;{j){l) so, where the plaintiff had erected a dam for supporting a fish-pond on his own soil, but the dam stopped a rivulet which the defendant enjoyed for the benefit of his cattle, whereupon he entered and abated the nuisance, and the Court refused to set aside a verdict in his favour ;(A;) so, if water runs through the land of a man, and he so stop it in its course as that it surrounds the land of the other, it is competent to this latter to remove the obstacle which *hinders p.^.^«.p.-i the escape of the water; so, every inhabitant of a vill near which a L -' stream runs may destroy every impediment to its course, otherwise the place might be inundated ;(m) and if a lawful water-course be impeded, for want of repair or otherwise, the injured party may quietly abate the nuisance : therefore, where the tenant of a house had a conduit for the purpose of con- veying water thereto, which passed through the land of another, it was held, that he might dig the land of the latter for the repair of the pipe ;(n) and it made no difference that the plaintiff in this case was a grantee of the land, for the land passed cum oncre ; and so, a party might be justified in remov- ing a hatch that impeded the course of the water to his mill, unless it appeared to have been made in exercise of a right. (o) 431. In abating a private nuisance, a party is bound to take reasonable care that no more damage be done than is necessary for effecting the pur- pose ;(;j) but the same care is not necessary in abating a public nuisance •,(q\ yet, in the case of a private nuisance, the party aggrieved will not be answerable for any damage resulting from the act, if he abate no more than is necessary ; therefore, where one erected a mill-dam partly on his own land and partly on the land adjoining, upon which the owner of the adjoin- ing land pulled down the part on his own land, and the whole dam fell down, he was held to be justified ;(r) but he may not abate more than is absolutely necessary ;(2) therefore, where the plaintiff had a right to irri- gate his meadow by placing a dam of loose stones across the stream, and occasionally a board and a fender, and he fastened the board with two stakes, which he had no right to do, the defendant was held justified in removing the stakes, although not so in *removingthe board, Greens- .,,„„-, lade v. Halliday ;(s) and it was there said, "If a party who has a L -^ right to erect a weir, erects buttresses thereto, although there might be an encroachment on the land of another, which would justify him in pulling (i ) 9 E. 4. 35, (k) Raikcs v. Townsend, 2 Smith, 9. (/) 8 E. 4, 5. (w) 9 E. 4. 35. (n) Guy v. Brown, Moor. 644. (0) Wakeman v. West, 8 C. & P. 105.i^ (p) W. Jo. 222. iq) Lodie V. Arnold, 2 Salk. 458. (r) Wigford v. Gill, Cro. EI. 269. (s) 6 Bing. 379 ;= S. C, 4 M. &, P. 75. (1) Colburn v. Richards, 13 Mass. 420. Dyer v. Depui, 5 Whart. 584. He cannot turn the water back on the land of the party increasing- the natural flow of the stream by means of ditches. Williams v. Gale, 3 Har. & Johns. 231. (2) Dyer v. Depui, 5 Whar. 584. Williams v. Gale, 3 Har &, Johns. 234. •■Eng. Com. Law Reps, xxxiv. 313. cjd. xix. 106. November, 1846.— 18 270 crabb's law of real property. them down, yet he would have no right to pull down or demolish the weir also."(n So, the thing complained of cannot be abated until it actually becomes a nuisance ; so, that if one see his neighbour erecLjng that which in all probability will ultimately be such, it cannot be abated as long as it continues inoffensive ;(w) but notice ought to be given to the offending party not to proceed, otherwise it is doubtful whether the nuisance can afterwards be abated. (u) 432. The ordinary remedy now is an action on the case ; thus, where the owners of property have, by long enjoyment, acquired special rights to the use of water in its natural state as it was accustomed to flow, by way of par- ticular easement to their owg properties, and not merely a use which is common to all the queen's subjects, an action on the case may be main- tained for a disturbance of the enjoyment ;(a') but where the injury, if any, is to all the queen's subjects, the only remedy is by indictment. (y) 433. As to whether the action should be case or trespass, has been a matter of doubt in some cases. The general rule is, that where the damage does not immediately result from the act complained of, it is consequential, and case is the proper form ; on the other hand, where the act itself, and not the consequence of it, occasions the mischief, trespass is the proper pioi^t^-i remedy •,{z^ therefore, where the *defendant caused water to over- L -^ flow the plaintifi''s fishery, by throwing down a weir in the plain- tiff's close, this was held to be a plain trespass. (rt) On the other hand, where the defendant dug ditches, and so diverted tlie plaintiff's water out of the river, an action on the case was brought ; and it was moved to arrest the judgment, because it did not appear that the diversion of the water was consequential to the digging of the ditches, and therefore that trespass was the proper form ; but the Court said, that the injury should be intended after the verdict to have been consequential ;(6) so, it has been held that where an injury has been done of a consequential nature, to the comfort and convenience of another, effected partly by an act of trespass, and partly by an act that was not a trespass, but from either of which the injury must and. would have resulted, case may be maintained. Wells v. Ody ;(c) and it was said, in that case, "Suppose a person's premises are injured by the chang- ing of a water-course, by the erection of a weir partly on the land of the plaintiff and partly on the land of the defendant, the erection of that which is on the plaintiff's land would be the subject of an action of trespass, and doing the same thing on the defendant's land would be the subject of an action on the case. If both acts are done at the same time, and form part of one res gesta, and the consequential damage is in respect of both to- gether, it appears to me, that the plaintiff may bring his action of trespass, (0 Per Tindal, C. J., lb. (u) R. V. Wharton, 12 Mod. 510; S. C, Holt, 499 ; Bridgm. 47. (v) Com. Dig. tit. Action on the Case for a Nuisance, citing 1 Morg. Vad. Mec. 297. (x) R. V. Bristol Dock Company, 12 East, 429. ((/) lb. See also Smith's case, 14 Vin. Abr. 394. (z) Reynolds v. Clarke, 1 Str. G36 ; Wells v. Ody, 1 M. &, W. 452. (o) Courtney v. Collet, 1 Ld. Raym. 274 ; S. C, 12 Mod. 164, cited also 2 Bl. 898. (6) Leveridge v. Hoskins, 11 M6d. 257. (c) 1 M. & W. 452. I RIGHT TO WATER AND WATER-COURSES. 271 • or his action on the case."((/) But it appears that trespass cannot be joined with case ;(e) yet the tenant may bring an action of trespass for the damage to his possession, and the reversioner an action on the case for the damage to tlie inheritance, (/) for the reversioner cannot bring trespass for an injury to the possession. (/) See further, infra, § 443. *434. The Courts seem to have leaned at all times to the r^n^on action on the case, or at least to the right of electing either to sue L J for the trespass, or to waive that and sue for the consequential damage only ; thus, in Whiting v. Beenway,(g-) it was held, that action on the case was maintainable ao-ainst the defendant, for having erected a weir or bank, by means whereof the water of a certain stream overflowed the plaintiff's meadow ; and it is there said, that the bank was laid as erected vi et armis, and not the overflowing, which was the injury there complained of; and in F. N. B. Trespass, 87, H,, a similar injuiry was held to be the subject of trespass ;(A) and in Smith v. Goodwin, (z) it was held, that though trespass might lie, yet a plaintiff" was at liberty in every case to waive the trespass, and bring case for the consequential injury. 435. An action of covenant will, it seems, lie for an obstruction to a water-course, where the case will admit of it, although in Carlisle (Mayor) V. Blamire,(A:) where a party had sold to the corporation of Carlisle so much of the river Caldew running through his lands as should be sufficient for the grinding of corn at all times at the city mills, with a covenant that the gran- tor should not divert or obstruct any part of the vv'ater so granted, it was held, that the defendants, being only devisees of an equitable estate, could not be liable to an action of covenant as assignees. 436. An action of ejectment will not lie for a water-course or rivulet, as such, because the sheriff cannot give possession of a thing which is forever 'running ;(^)(1) therefore, where error was brought on a judgment because ejectment had been maintained de aquae cursu, it was reversed by the un- animous opinion of the Court ;(?n) but it was said *that such an ^^^^q-, action would lie for a gorce or pool, because those words compre- L -1 hend both land and water ;(n) so, where the land under the water does not belong to the plaintiff", but the water, then an action on the case only can be brought for any diversion of it.(??) Formerly an assize of nuisance or a quod permittat, or a prsecipe quod reddat, might be brought for obstructions, but these are among the real actions which have been abolished by the 3 & 4 W. 4, c. 27, s. 36. (d) Per Lord Abinger, C. B., in Wells v. Ody, sup. (e) Courtney v. Collet, sup. (/) Beddingfield v. Onslow, 3 Lev. 209. ig) 1 Roll. Abr. 107, citing 22 H. 6. 15. (h) See also Brandscorab v. Bridges, 1 B. «&. Cr. 145. P (i) 4 B. & Ad. 419.q (A) 8 East, 487. (!) Adams on Eject. 20. (m) Challenor v. Thomas, Yclv. 143 ; S. C, I Brownl. 142. (h) lb. (1) Lefe\Te v. Lefevre, 4 S. & R.243. pEng. Com. Law Reps, viii, 43, ild. xxiv. 89. 272 crabb'slaw of real property. 437. Rights respecting water-courses may likewise be the subject of reference to arbitration. (o) So, relief may in some cases be had in equity, where it could not be had at law ; thus in the case of laches, as where a party stood by and saw his water-course diverted, but instead of preventing it, encouraged the work while it was going on, and afterwards brought his action, the defendant on his application to the Court of Chancery obtained an injunction.(/)) Short V. Taylor(/)) is a similar case, in which Lord Somers also granted an injunc- tion: so, in the case of long possession of a water-course by the plaintiff, the defendant having cut a channel in his own lands and set up a sluice so as to divert the stream, the Court on proof by the plaintiff decreed for him, with- out sending him to try his right at law •,{q) but as a rule, equity will not grant relief until the parties have tried their rights at law ;(r) so, if there have been laches, and the erections complained of have been suffered to remain any length of time, the Court will not interpose by injunction. (s) 438. As, according to a well-known rule of law, an action on the case ^ cannot be maintained for a tortious act, *unless the plaintiff shew L ^ some actual damage resulting from the act to himself, it has been said that this rule ought to be applied to water-courses, and that therefore the mere obstruction of the water, which has been accustomed to flow through the plaintiff's lands, does r\oi per se afford a ground of action, and that it is incumbent on the party complaining of the diversion of the stream to shew that he has sustained some damage thereby, and also that he has applied the water to some beneficial purpose.(?)(l) 439. A person may gain a title to water in some cases by appropriation, and may maintain an action for obstructing it, although he has used the water for less than twenty years, as where he purchases land with a run of water upon it ;(i<) or, where a proprietor of lands adjoining to a stream has (o) Alder V. Savill, 5 Taunt. 454.' ( p) Anon., 2 Eq. Ca. Abr. 523, pi. 3. (9) 2 Vern. 391, n. 1, (r) Wliitchnrch v. Hidc,2 Atk. 391. (s) lb. See further, Bush v. Western, Free. Chan. 536 ; Dorset (Duke of) v. Girdler, Id. 531 ; Hilton v. Ld. Scarborough, 4 Vin. Abr. 425 ; Weller v. Smcaton, 1 B. C. C. 572 ; S.C, 1 Cox, 102. (/) Williams v. Morland, 2 B. & Cr, 913 p S. C, 4 D. &. R, 583. But see Hebbleth- waite V. Palmer, 3 Mod. 48; S. C, nom. Heblethwait v. Palmes, Carth. 84; S. C, noni, Keblethwaite v. Palmer, 1 Show. 64 ; S. C, nom. Palmer v. Keblethwaite, 2 Show. 243 ; S. C, nom. Hcblewait v. Palmer, Holt, 5 ; S, C, nom. Palmer v. Heblethwait, Skin. 65, 175 ; S. C, nom. Nnlmes v. Hoblcthwayte, 3 Lev. 133, where it was expressly held that an occupier of land might recover for the loss of the general benefit of flowing water, with- out showing any special use or damage. See also Mason v. Hill, (5 B. & Ad. 26,') where the dicta in Williams v. Morland (sup.) are much discussed. Also ante, § 399 et seq. {u) Canham v. Fiskc, 2 Cr. & Jer. 126 ; S. C, 2 Tyrw. 155. (1) As the right is acquired by means of an obstruction long enough to give a presump- tion of a grant, the rule as stated in the text would have the anomalous effect of destroying a right to a future valuable use of property by an adverse user, which at the same time coukl not be redressed by action. This doctrine has been discussed, ante, § 413, n. 2. See also the remark of Weston, J., in Blanchard v. Baker, 8 Greenl. 268, that such a rule would have the effect of making the enjoyment of this s])ecics of property dependent on the will of another. See also Bolivar v. Nepcuset, 1 6 Pick. 246, that the law presumes damage from such acts. Butman v. Hussey, 3 Fairf. 407. tEng. Com. Law Reps. i. 156. ^Id. ix. 269. 'Id. xxvii. 11. I RIGHT TO WATER AND WATER-COURSES. 273 altered the course of the stream, he may maintain an action, although he has not enjoyed it in its altered state for Iwentj'' years ;(a:) so, the appropriator of a stream that has been accustomed to flow aloncj a channel from time immemorial. (y) 440. The owner of land through which a natural stream of water runs, may, after erecting a mill on his own land, maintain an action against the proprietor of works, for an injury to his mill bj' a further subsequent diversion of the stream ;(z) for the proprietor of lands contiguous to a stream may, as soon as he is injured by the diversion of the *water, maintain an ,-^00 n action against the party so diverting it.(o) L -^ 441. As a rule, an action on the case lies against the person creating the disturbance, whether owner or not ;(6) so, for the party continuing the nui- sance ; therefore, where a man fixed a small pipe and cock into a main-pipe, whereby he diverted a watercourse from the house of another, it was held that an action lay against his widow, who, after his death, continued the nuisance ;(c) so, in the case of a feoffment, the feoffee will be held hable, as, where the proprietor was annoyed by the dropping of water from an adjoin- ing house, it was held, that the defendant, a feoffee, Avas liable, Rolfe v. Rolfe, cited in Beswick v. Combden,(f/j which last was the case of a feoffee continuing the bank of a river so as to overflow his neighbour's ground ; see, however, Cro. El. 403, 520, where the case of Beswick v. Combden is dis- cussed ; so, a devisee shall have an action for a nuisance commenced in the life of the testator, and continued afterwards ;(e) where, however, the nui- sance arises from a neglect to repair, the action can only be maintained against the occupier, and not against the owner of the fee, who is not in possession, ( («?) 1 Bing. N. C. 546fi (r) Baxter v. Taylor. 4 B. & Ad. 72.« (s) 5 Co. 101. (/) 2 B. & Ad. 97.^ »Eng. Com. Law Reps, xsxix. 21. ^id. jxvii. 489. 'Id. xxiv. 26. "^Id. xxii. 33. RIGHT TO LIGHT AND AIR. 275 I. Mature nutK Svtent of the ^igiit to 2tiQf*it an^ Mix. § 445, Right to Light and Air on one's own Land. From adjoining Land. 446. Necessity of Light and Air. But not of a Prospect. § 446. Except by Agreement. 447. Extent of the Right. 448. Case of Windmills. 449. Custom of London. § 445. The right to light and air depends upoa the legal maxim, cujus est solum, ejus est usque ad coelum et ad inferos, *for every man on ^^,00 <-i his own land has a risfht to all the light and air that will come to ^ -^ him ; but this right is strictly confined to that which falls perpendicularly on the land, &c. ; the reception of light and air in a lateral direction by the means of windows in a house, is an easement ; for although a man may build to the very extremity of his own land, yet within twenty years he acquires no right to light and air from the adjoining land, and it is compe- tent to his neighbour to obstruct the passage of the light and air throughhis windows, by building against them on his own land, at any time during twenty years after their construction, and thus prevent the acquisition of the easement. (r<)(l) But if the light be suffered to pass without interruption during that period to the building so erected, the law implies from the non- obstruction of the light for that length of time, that the owner of the adjoin- ing land has consented, that the person who has erected the building upon his land shall continue to enjoy his light without obstruction, so long as he continues the specific mode of enjoyment which he had been used to have during that period. (z;) 446. Light and air being necessary to the right enjoyment of a dwelling, it was held in an early case that an action would lie for obstructing them,('y) unless it were by express agreement of the parties ;(u) sed secus as to a prospect, which is merely for pleasure ;(v) and so, on the authority of this case it was held, in Knowles v. Richardson, that building up a wall which merely intercepted the prospect without stopping out the light, was not actionable ;(x') so, where a motion was made for an injunction to restrain the defendant from proceeding with a certain building, which would inter- cept the prospect from Gray's Inn Gardens, and it was alleged that the interposition of the Court was desired, not on the ground of a nuisance, but on along enjoyment of right to this prospect by the society, Lord Hardwicke *refused to grant an injunction before answer, adding, " I know no r#qo--i rule of common law, which says, that building so as to stop ■- -^ another's prospect is a nuisance ; was that the case, there could be no great towns. ... It depends upon a particular right, and then the party must first have an opportunity to answer. There may be such a right as this, as (u) Moore V. Rawson, 3 B. & C. 340.5 (r) Aldred's case, 9 Co. 53. (z) 1 Mod. 55 ; S. C, 2 Keb. GIL (1) And no action lies for the obstruction, even though done merely for the purpose of closing the window. Mahan v. Brown, 13 Wend. 261. eEng. Com. Law Reps. x. 99. 276 crabb's law of real property. in the case of the Act of Parliament touching Lincohi's Inn ; that was upon agreement of the parties, which if it was shewn here, it would be differ- ent ;(y) but where the terms of a lease are in other respects complied with, and the lease is silent on the subject of any particular erections, it has been held, that under the circumstances it was not competent to the lessees of certain houses to object to the erection of a statue, on the ground that it would be an obstruction, Squire v. Campbell ;(^) and it was there said, " It is not, as is said in one case, (see 1 Dick. 175, and 16 Ves. 342,) because the value of property may be lessened, and it is not, as is said in another case, (see 1 Dick. 175), because a pleasant jirospect may be shut out, that this Court is to interfere ; it must be an injury very diflerent, in its nature and origin, to justify such an interference. "(a) 447. The right to the use of light may be acquired not only for the con- venience of a dwelling, but also for the purposes of trade ; therefore, where a building had been used for a long time as a malt-house, it was held, that no erection could be made which would obstruct the admission of the pro- per degree of light for the purpose of making malt ;(6) but it appears, that the use of an open space of ground for a purpose requiring light and air, as a timber-yard and saw-pit, for twenty years, did not give a right to preclude the owner of the adjoining ground from building on his land so as to obstruct r*^ftfi"l ^^^ ^^S^^ ^^^d air ;(c) and it was said, "If *such a plea could be sus- L -' tained, it would follow, that a man might acquire a right to the light and air, not only as heretofore, by having been suffered to build on the edge of his property, and suffered for a certain space of time to enjoy that build- ing without interruption, but merely by reason of having been in the habit of laying a few boards on his ground to dry. Such a rule would be very inconvenient, and very unjust. "((A 448. In one of the early cases it Avas held, that where a house was erected so high that the wind was stopped from the windmills, the house should be dejected, or at least so much of it as occasioned the nuisance. (c) 449. By the custom of London, a man might rebuild his house or other edifice upon the ancient foundation to what height he pleased, though thereby the ancient lights of the adjoining house were stopped, if there Avere no agreement in writing to the contrary ;(/) but not any other erection upon a new soil, or upon any other foundation ;("•) as to the rights to light under the Prescription Act, see post, § 452 ; also Dig. P. iii. tit. Prescription. (y) Attorney-General v. Doughty, 2 Vez. 452. (2) 1 My. & Cr. 459. (a) Per Lord Cottinjrham, C. 1 My. & Cr. 450. (b) Martin v. Goble, 1 Campb. 322. (c) Roberts v.^Marord, 1 Mood. &, Rob. 230. (d) Per Patteson, J., Roberts v. IMacord, 1 Mood. & Rob. 230. (e) Goodman v. Gore, 2 Roll. Abr. 704, 705. (/) Com. Dig. tit, London, N., (5). (g) lb. See also Winstanley v. Lee, 2 Svvanst. 339. RIGHT TO LIGHT AND AIR. 277 IT. l^oijj clnCmrt. § 450. By Prescription. In the Case of ancient Windows 451. By Consent. §4.52. By Leng;th of Enjoyment. 453. Acquiescence by Person entitled to' the Inheritance. 454. By License. § 450. Ancient lights may be prescribed for, because light and air are things necessar}' ;(/t) so, in Palmer v. Fletcher,(i) *it was held, that ^#007-1 a stranger, having lands adjoining to a house newly erected, may L J stop the lights, for the building of a man on his land cannot hinder his neighbour from doing what he will with his own lands ;(1) but other- wise, if the messuage be ancient, so that he has gained a right in the lights by prescription ; and in Cross v. Lewis(/) it is said, "A man on his own land may erect a house with windows looking towards his neighbour's pre- mises ; at first they may be obstructed, but if no interruption is offered, he may at length prescribe for them as ancient windows, and claim to have them free from obstruction, as in Bland v. Moseley, cited in Aldred's case, (9 Co. 57)." (A;) So, in Penwarden v. Ching(Z) it was held, that a window recently erected might have the privilege of an ancient window ; and it is there said, "The question is not whether the window is strictly what is called an ancient window, but whether it is such as the law in indulgence to rights has, in modern times, so called, and to which the defendant has a right, for this is the substance of the plea."(?7i) 451. A right to light and air is not, like a right of common, to be enjoyed on the land of another, and therefore is not properly the subject of grant ; it is acquired hj user, and after a time, an agreement not to obstruct the light and air is presumed ; but this is not by way of grant, for the right to insist on their non-obstruction and non-interruption more properly arises by a covenant which the law implies, not to interrupt the free use of these elements, (n) 452. The enjoyment of lights for twenty years, without any obstruction from the party entitled to object, has long been held to be a sufficient foun- dation for raising the ^presumption of an agreement not to obstruct r-*qoo-i them, (2) Darwin v. Upton, cited 3 T. R. 159, and ever since this L -■ decision it has been held, that in the absence of any evidence to rebut that presumption, a jury should be directed to act upon it ;(o) and since the 2 & {h) Aldred's case, 9 Co. 58. (i) 1 Lev. 122 ; S. C, 1 Sid. 1G7. (; ) 2 B. & C. 686 ;h S. C, 4 D. & R. 234. (/f) Per Holrovd, J., lb. (l) Mood. Sc Malk. 400. {m) Per Tindal, C. J., lb. (n) Moore v. Rawson, 3 B. & C. 340.i (0) Per Bay ley, J., in Cross v. Lewis, 2 B. «$;:, C. 639 .J (1) Mahan v. Brown, 13 Wend. 261. Thurston v. Hancock, 12 Mass. 220. (2) Wright V. Freeman, 5 Har. & Johns. 477 ; Tliurston v. Hancock, 12 Mass. 225. This rule is doubted as to its application to city lots in this country. 3 Kent's Corn. 446, n. b.; Hoy v. Sterret, 2 W. 331. bEng. Com. Law Reps. ix. 221. ^Id. x. 99. Jid. ix. 221. 278 crabb's law of real property. 3 W. 4, c. 71, s. 3, (see Dig. P. iii. tit. Prescription,) an absolute right to light may be acquired by an enjoyment without interruption for twenty years, as the eighth section of the act, providing for possession during par- ticular periods, does not extend to lights ; therefore, a right to lights may be established upon an enjoyment for nineteen years and a fraction, provided the action be brought before the interruption has continued for the full period of a year.(/)) 453. But, though an uninterrupted possession for twenty years or up- wards was held, before the Prescription Act, the 2 & 3 W. 4, c. 71, sufR- cient to presume a grant or agreement, yet the rule was, and still is, to be taken with this qualification, that the possession was with the acquiescence of the person entitled to the inheritance ; therefore, the tenant for life has no power to grant any such right for a longer period than during the con- tinuance of his particular estate ;(o.' 'Eng. Com, Law Reps. xxx. 104. 280 crabb's law of real property. been obtained before the alteration ; the jury found for the plaintiff, but a new trial was granted, on the ground, that " although the point was made, yet the jury were not required to consider whether the plaintiff had essen- tially varied the manner in which the light had been enjoyed." 457. So, in Blanchard v. Bridges,(/) where the owner of a house enlarged it and inserted a window at one end in the part added, and at another end carried out the side walls, between which two windows for- merly stood in a straight line, five feet, converting this end into a bow, and -, inserting *two bow-windows in the same direction, but not in the L J same situation as the two former, it was held, that whatever privi- leges against the obstruction of light the two windows of the original house possessed, this privilege did not extend to the three new windows ; and in this case it is said, "In whatever way precisely the right to enjoy the unob- structed access of light and air from adjoining land may be acquired, (a question of admitted nicety,) still the act of the owner of such land, from which the right flows, must have reference to the state of things at the time when it is supposed to have taken place ; and as the act of the one owner is inferred from the enjoyment of the other, it must in reason be measured by that enjoyment. The consent, therefore, cannot fairly be extended be- yond the access of light and air through the same aperture (or one of the same dimensions or in the same position) which existed at the lime such consent is supposed to have been given. It appears to us, that justice and convenience both require this limitation. If it were once admitted, that a new window varying in size, elevation, or position, might be substituted for an old one, without the consent of the owner of the adjoining land, it would be necessary to submit to juries questions of degree, often of a very uncer- tain nature, and upon very unsatisfactory evidence. And in the same case, a party who had acquiesced in the existence of a window of a given size, elevation, or position, because it was feU to be no annoyance to him, might be thereby concluded as to some other window, to which he might have the greatest objection, and to which he never would have assented, if it had come in question in the first instance. The case of Chandler v. Thomp- son,(o-) is not at all inconsistent with this reasoning. There an ancient window had been enlarged ; the original aperture remained, and that case only decided that that aperture remained privileged as before the enlarge- ment. We do not forget that the windows in the present case, whatever , -, their privilege may be, do not *claim it as ancient windows in the L -J ordinary way, from an acquiescence of twenty years ; but this cir- cumstance forms no ground of distinction as to the point now under con- sideration. (A) (/) 4 Ad. cS:, Ell. 195 ;' S. C, 5 Nev. & Man. 567.' {g) See ante, § 455. (A) Per Pattoson, J., Blanchard v. Bridges, 4 Ad. & Ell. 195 ;» S.C, 5 Nev. & Man. 567. 'Eng. Com. Law Reps, xxxi. 46. 'Id. RIGHT TO LIGHT AND AIR. 281 IV. "P^D'O) lOfjt. § 459. Lost by Non-user. Moore v. Rawson. 460. What amounts to Non-user. § 401. By altering the Mode of Enjoy- ment. I § 458. There are two ways by which a right to light and air may be lost, namely, by non-user, and an alteration in the mode of enjoyment. 459. The right to the use of light and air, which a party has appropriated to himself, may be lost by mere non-user for a less period than twenty years, unless an intention of resuming a right within a reasonable time be shewn, when it ceased to be used;(l) thus, where a person entitled to ancient lights pulled down his house, and erected a blank wall in the place of a wall in whicli there had been windows, and suffered such wall to remain blank for seventeen years, and the defendant erected a building against it, when the plaintiff opened a window in the same place, where there had formerly been a window in the old building, it was held in an action for obstructing this new light, that it lay upon the defendant at least to shew, that, at the time when he so erected the blank wall, and thus apparently abandoned the windows which gave light and air to the house, it was not a perpetual but a temporary abandonment of the enjoyment, and that he intended to resume the enjoyment of those advantages within a reasonable period of time, (i) *460. " The right to light and air, or water," (it is further said in that p#oQ <-| case, (A') "is acquired by enjoyment, and will, as it seemstome, continue L " -^ so long as the party either continues that enjoyment, or shews an intention to continue it. In this case the former owner of the plaintiff's premises had acquired a right to the enjoyment of the light, but he chose to relinquish that enjoyment, and to erect a blank wall instead of the one in which there were formerly windows. At that time he ceased to enjoy the right in the mode in which he had used to do, and his right ceased with it."(Z) So, it has been held likewise, " If a man pulls down a house, and does not make any use of the land for two or three years, or converts it into tillage, he may be taken to have abandoned all intention of rebuilding the house, and consequently his right to the light has ceased. But if he builds upon the same site, and places windows in the same spot, or does any thing to show that he did not mean to convert the land to a different purpose, then his right would not cease. "(?n) So, it has been previously held, that completely shutting up windows with bricks and mortar for above twenty years would destroy the privi- lege ;(?i) and the plaintiff, by having opened an old window which had (i) Moore v. Rawson, 3 B. & C. 336 ;= S. C, 5 D. & R. 254. (k) Id. (/) Per Bayley, J., lb. (w) Per Littledale, J., Id. 341. (/)) Lawrence v. Obee, 3 Camp. 514. (1) Corning v. Gould, 16 Wend. 531. «Eng. Com. Law Reps. x. 99. 282 CRABBS LAW OF REAL PROPERTY. been thus blocked up, and thus brought a nuisance upon herself, had no right of action. (n) In Garritt v. Sharp,(o) it was held that a party might so alter the mode in which he has been permitted to enjoy this kind of easement, as to lose the privilege altogether ; but as to the effect of alterations in general, see ante, § 455 et seq. [*395] *v. Bisturiiancc of tiic Jiifsiit, m\li the iiemctrics. § 463. What amounts to an Obstruction. 464. Not always unlawful. 465. When an Obstruction is unlawful, 466. Other Cases. Compton V. Richards. 467. Reviere v. Bower. 468. Coutts V. Boreham. 469. Swansborough v. Coventry. 470. Blanchard v. Bridges. 471. Remedies relating to Light and Air. § 471. In case of disturbing Privacy. 472. Action on the Case. 473. Parties to the Action. 474. Action against Tenant or Assignee. 475. Injunction. 476. Cases of equitable Jurisdiction, Winstanley v. Lee. 477. Ryder v. Bentham. 478. Sutton v. Ld. Montfort. 479. Bedford (Duke) v. British Museum (Trustees.) § 462. The disturbance of this right is by obstructing the passage of the light and air, which may be considered, first, as to what amounts to an obstruction ; next, the circumstances under which the obstruction maj'' take place ; and, lastly, the remedy. 463. In order to constitute, by building, an illegal obstruction of the plaintiff's ancient light, it is not necessary to show a total privation of light ; if the plaintiff can prove, that by reason of the obstruction, ho cannot enjoy the light in so free and ample a manner as he did before it will be sufficient ;(p) the question is, whether, in consequence of the obstruction, the plaintiff has less light than before, to so considerable a degree, as to injure the plaintiff's property in point of value or occupa- tion ;[q\ so, where one party has the enjoyment of light, and alterations are made in the adjoining buildings, it must ajjpear that the privation of light is such as to prevent him, if he is in trade, from carrying on his business as beneficially as he had previously done.(r) r*Qqp-i *464. Every interference with the light and air that may be L -^ enjoyed by the owner of an adjoining house is not unlawful ; the opening a window, whereby a person's privacy is disturbed, is not action- able ;(s) so, building a wall, or otherwise obstructing a prospect, without obstructing the light, is not actionable. (i) (n) Lawrence v. Obee, 3 Campb. 514. (0) 3 Ad. & El. 325 ;f S. C, 4 Nev. & Man. 834. (/)) Cotterell v. Griffiths, 4 Esp. 69. (7) Pringle v. Wernliam, 7 C. & P. 377 ;? Wells v. Ody, Id. 410. (r) Back v. Stacey, 2 C. & P. 465 ;h S. P., Parker v. Smell, 5 C. & P. 438 ;> Pringle v. Wrcnham, sup. ; Wells v. Ody, sup. (s) Cotterell v. Griffiths, 4 Esp. 69 ; Chandler v. Thompson, lb. (/) Knowlcs v. Richardson, 1 Mod. 55. 'Eng. Cora. Law Reps. xxx. 104. eld. xxxii. 548. bid. xii. 218. 'Id. xxiv. 401. RIGHT TO LIGHT AND AIR. 283 465. On the principle that a man cannot derogate from his own grant, it is settled, that where the same person possesses a house, having the actual enjoyment of certain lights, and also possesses the adjoining land, and sells the house to one, and the land to another, yet although the messuage be new, yet no person claiming under the vendor, any more than the vendor himself, can build on the adjoining land, or put piles of timber so as to obstruct the light ;[i() and whether the land was sold before the house or afterwards, it was said that it made no difference ;(?<) and it is not neces- sary to state, in any action, that the house is ancient, " For if a man should build a house on his own ground, and then grant the house to A., and grant certain land adjoining to B., B. could not build to the stopping of its lights in that case ;"(^0 so, an action will lie in such case, either against the lessor or the lessee.(3/)(l) 466. Upon the same principle, when several adjoining portions of land, on which the building of houses had been commenced, were sold by auction, and by the conditions were to be finished according to a particular plan, it was held, that a purchaser of one of the lots could not, by erecting an additional building at the back of his house, obstruct the light from the windows of another purchaser, who had built his house according to the plan ;[z) for it *was said, " The purchase must be taken to have p^og^-i been subjected to certain conditions at the time of sale, and as these l unfinished houses were so far buih as that the openings, which were intended to be supplied with windows, were sufficiently visible as they then stood, we must recognise an implied condition that nothing would afterwards be done by which those windows might be obstructed, and the purchasers must have taken subject to what then appeared. "(a) 467. So, where the owner of a house divided it into two tenements, and demised one of them to the defendant, retaining the other in his own occu- pation, it was held, in an action against the defendant for obstructing the plaintiff's lights, that the action was maintainable against a person holding as tenant, for an obstruction to a window existing in the landlord's house at the time of the demise, although of recent construction, and although there was no stipulation against the obstruction. (6) (m) Palmer v. Fletcher, 1 Lev. 122 ; S. C, 1 Sid. 167 ; 1 Keb. 553. {X) Per Hale C. J., Cox v, Matthews, 1 Vent. 237. 239. (y) Roscwell V. Prior, 6 Mod. 116. {z) Compton v. Richards, 1 Price, 27. (a) Per Thompson, C. B., Compton v. Richards, 1 Price, 27. (6) Rivere v. Bower, 1 Ry. &. M. 24.P (1) Story V.Odin, 12 Mass. 157, S. P. There is an implication of a grant of way from sale, according- to a plan on which ways are laid out, necessary or useful for the purposes of the land. Sclden v. Williams, 9 W. 13. The same principle is applied in case of a license accompanied with costly expenditures. Lefevre v. Lefevre, 4 S. & R. 241. Rerick v. Kern, 14 S. & R. 267. But whether a party can reserve such a right by implication, thus impairing his own grant, qua-re. In Manning v. Smith, 6 Conn. 289, where it was held, a purchase of land having merged an easement in an artificial water, course, on the laud of the purchaser, it did not arise by implication on a re-conveyance : it was said, not belonging naturally or necessarily to the land conveyed, it could not pass as appurtenant, and the court would not enlarge the terras of the grant, when the party might have secured himself by proper convenants. rEng. Com. Law Reps. xxi. 373. 284 crabb's law of real property. 468. So, where the owner of two adjoining houses granted a lease of one of them to B., and afterwards leased the other to C, there then existing in it certain windows, after which B. accepted a new lease of his house, it was held, that B. could not alter his tenement so as to obstruct the windows existing in C.'s house at the time of his lease, although the windows Avere not twenty years old at the time of the alteration. (c) 409. So, where the plaintiff purchased a house of A., and the defendant at the same time purchased the adjoining land, upon Avhich a building one story high had formerly stood, although in the conveyance to the plaintiff his house was described as bounded by building-ground belonging to the ^ ^„ -, defendant, it was held, nevertheless, that the defendant *was not L -J entitled to build to a greater height than one story, if by so doing he obstructed the upper windows of the plaintiff's house ;[d\ and it was said, « It is well established by the decided cases, that where the same person possesses a house having the actual use and enjoyment of certain lights, and also possesses the adjoining land, and sells the house to another person, although the lights be new, he cannot, nor can any one who claims under him, build upon the adjoining land, so as to obstruct or interrupt the enjoy- ment of those lights. The sales to the plaintiff and defendant being sales by the same vendor, and taking place at one and the same time, we think the rights of the parties are brought within the application of the general rule of law."(f) 470. In Blanchard v. Bridges(y) it was held, that no license of covenant from A., the owner of the adjoining land, to put out or not to obstruct the windows in the house of B., is to be inferred from the circumstance of A.'s being a party to the deed by which the house with the windows in it was conveyed to B., and by which deed A. conveyed part of the adjoining land to B., or from the circumstance of A.'s witnessing, without objection, the progress of the building ; so, likewise, Avhere A., in licensing B. to build to the extremity of B.'s ground, adjoining that of A., expressly reserved to himself the right of building to the extremity of his own ground, when he should think proper so to do, it Avas held, that A. might, at any time within twenty years, build to the extremity of his own land, though he thereby rendered the house of B. dark, damp, and unheaUhy.(/) If a party who has neglected to secure to himself the unobstructed enjoyment of light and air to a new window, by previous express hcense or covenant, upon any thing short of twenty years' acquiescence, the onus lies upon him to produce such evidence clearly and conclusively to the inference of a license or cove- nant. (/) r^Qoni *471. The injuries relating to the enjoyment of light and air are L -' either such as arise from a person's putting out windows to the pre- judice of his neighbour's privacy, or, which is more commonly the case, by interrupting others in the enjoyment of that light and air to which they are (c) Coutts V. Gorham, 1 Mood. & Malk. 396.1 (d) Swansborough v. Coventry, 9 Bing. 305 r S. C, 2 M. & Sc. 369. (e) Per Tindal, C. J., lb. (/) 4 Ad. & Ell. 195 ;' S. C, 5 Nev. & Man. 567. ■iEng. Com. Law Reps. xxii. 338. "-Id. xxiii. 236. ^id. xxxi. 46. * RIGHTTOLIGHTANDAIR. 285 entitled ; in the first of these cases, where a party's privacy is disturbed by his neighbour throwing out a window to overlook his premises, there appears to be no other remedy than to build on the adjoining land opposite the offen- sive window, Chandler v. Thompson ;(»•) and it is there said, " Although an action for opening a window to disturb the plaintiff's privacy was to be read of in the books, I never knew such an action maintained ; and when I was in the Common Pleas, I heard it laid down by Lord C. J. Eyre, that such an action did not lie. "(A) 472. In the latter case above mentioned, when a party has acquired a right to the use of light, an action on the case lies for obstructing it ;(?') and the like remedy lies for rendering the air impure, as by the smell of hogs,(t) and in this latter case the right of action lies not only for the disturbance of an easement, but also for an injury to the common law rights of property. (A;) But every interference with the full enjoyment of an easement will not amount to a disturbance so as to sustain an action ; it must be some sensible abridgment of the enjoyment ; it is not sufficient that a "ray or two of light is obstructed. (/) 473. An action may be maintained by a reversioner for the obstruction of lights, for if he were prevented from suing for such an injury during the continuance of the particular estate, he might have great difficulty in prov- ing his right when he came into possession ;(m) and the ground r-^jf.r.-< upon *which a reversioner is allowed to bring his action for obstruc- L -> tions, apparently permanent, to lights and other easements which belong to the premises, is, that, if acquiesced in, they would become evidence of re- nunciation and abandonment ;(n) so, if the erection which caused the obstruc- tion in the first instance was an injur}'" to the reversion, on any ground on which it can be put, the continuance was held necessarilj'' to be so likewise. The continuance of the obstruction would in fact render the proof of title more difficult at a future time, notwithstanding the former recovery ;(o) and in Jesser v. Gifrord,(7;) which was an action by a reversioner for obstructing lights, it was held, that the tenant might bring the action in respect of the injury to his possession, and the reversioner in respect of his reversion, see further, ante, § 443. 474. The owner of the inheritance may bring an action against the tenant for a nuisance in obstructing lights and breaking his wall, (7) and the action may be brought not only against the party who erected the nuisance, but also against his lessee or assignee for continuing it ; therefore, where a les- see for years of a piece of ground adjoining to an ancient messuage with ancient lights, whereof the plaintiff^ was possessed for years, erected a house (g) 3 Campb. 82. (A) Per Le Blanc, J., lb. (i) Aldred's case, 9 Co. 59 a. (A-) Bliss v. Hall, 6 Scott, 500. (l) Cotterell v. Griffiths, 4 Esp. 69. See further, ante, § 462. (m) Schadwell v. Hutchinson, 1 Mood. & Malk. 300.' (71) Bower v. Hill, 1 Bing. N. C. 555." (0) Schadwell v. Hutchinson, 2 B. & Ad. 97.'' ( p) 4 Burr. 2141. iq) Toralinson v. Brown, Say. 215 ; S. C, cited 2 Burr. 2142. 'Eng. Com. Law Reps. xxii. 33. "Id. xxvii. 489. 'Id. xxii. 33. November, 1846 19 286 crabb's law of real property. thereupon, whereby the plaintiff's Hghts were stopped, for which the plain- tiff brought a former action and recovered damages, after which the defen- 4ant granted over the ground, with the nuisance, to another, it was held, that an action lay for the continuance, and might be brought against either ;(r) but he who does the first wrong shall be answerable in damages ;(r) and though the action lies against either, yet there shall be one satisfaction ;(r) and an action will lie not only against the principal, but also against the managing r»4.m"l ^^^"^^ ^^^° ^superintends the erection of any nuisance ; therefore, in L -■ an action on the case for obstructing the plaintiff's lights, it was held that a clerk who superintended the erection of the building by which they were darkened, and who alone directed the workmen, might be joined as a co-defendant with the original contractor; Wilson v. Peto and Hunter,(s^ where it is said, " In cases of that description, the action must be brought either against the hand committing the injury, or against the owner for whom the act was done ;" but intermediate and subordinate persons are expressly exempted from responsibility by this case. 475. A Court of equity will grant an injunction to restrain any erection likely to darken or obstruct the ancient lights of any house ;(/) and it will be granted on affidavit of notice, but not on a motion in support of a particu- lar right to a prospect ;(u'\ and the right to lights, as the ground for an injunction to stop the erection of buildings, must be founded on prescrip- tion, or else on some agreement or a reasonable presumption of one ;(r) so, the foundation of the jurisdiction to interfere by injunction must be such material injury to the comfort of those who dwell in the neighbouring house, as to require the application of a power to prevent, as well as to remedy an evil for which damages, more or less, would be given in an action at ]aw.[x) " The position of the building, whether opposite, at right angles, or oblique, is not material. The question is, whether the effect is such an obstruction as the party has no right to erect, and cannot erect without those mischievous consequences, which upon equitable principles should be not only compensated by damages, but prevented by injunction. r*4n9l ^ i"6peat the observation of Lord Hardwicke,(2/) that a *diminution L -'of the value of the premises is not a ground ; and there is as little doubt that this Court Avill not interpose upon every degree of darkening ancient hghts. "(s) 476. Courts of equity will restrain the erection of buildings which would cause irreparable injury, as loss of health, loss of trade, or destruction of the means of existence, without waiting the slow process of establishing the legal right, when delay itself would be a wrong ; but the plaintiff is bound to shew not only a legal right to the enjoyment of the ancient lights, but (r) Rosewell v. Prior, 6 I\Iod. 116 ; 12 Mod. 635 ; S. C, 2 Sulk. 459 ; S. C, Comb. 481 ; S. C, Carth. 454 ; S. C, Holt, 500 ; S. C, 1 Ld. Raym. 392. (s) 6 J. B. Moore, 47,^ recog:nizing Stone v. Cartwright, 6 T. R. 411, it) Back V. Stacey, 2 Russ. 121. (u) Attorney-General v. Doughty, 2 Vez. 453, («) Morris v. Lessees of Lord Berkeley, 2 Vez. 452. (x) Attorney-General v. Nichol, 16 Vez. 338. (»/) 1 Dick. 164. (z) Per Eldon, C, Attorney-General v, Nichol, 16 Vez, 338. wEng, Com. Law Reps. xvii. 13. RIGHT TO LIGHT AND AIR. 287 that, if the defendant is permitted to proceed, such an injury will ensue as will warrant the Court in interposing ;(a) and the Court will not interpose on certificate of a bill filed before answer, unless the injury is of a nature so pressing as not to admit of delay. (a) 477. In Ryder v. Bentham,(Z>) an injunction against erecting certain blinds, so put up as to obstruct plaintifl^'s lights, was granted, until trial of the right at law ; but the Court would not, on motion, make an order to pull down what had been already erected; so, in Attorney-General v. Nichol,(c) the Court granted, under the circumstances, an injunction to restrain the obstruction of ancient lights before appearance, and without notice, on an affidavit filed, even although plaintiff had previously commenced an action at law; see also S. C, 16Ves. 338, where this injunction was also dis- solved, on defendant's undertaking to remove the obstruction if the verdict should be against him ; see also Chalk v. Wyatt.(f/) 478. An injunction was granted to prevent the stopping of ancient lights against the lessee of an ecclesiastical corporation, subject to the plaintiffs' establishing their right to an *easement in an action ;(e) and upon a p^^Qoi motion to dissolve the injunction, it was said, "As far as the model L -^ gives me any information upon the subject, and so far as I can form a con- ception from the dimensions of the intended buildings as they have been stated in the affidavits, I entertain no doubt whatever that the comfort of those who live in the houses now occupied by Mr. Tutton and Miss Jelfe would be most materially affected. I have, therefore, a case before me, in which, according to my own opinion, the building, if completed, would be a nuisance, and in which it is not by any means clear that the Dean and Chapter of Westminster would have a right to erect the building proposed, and in which it appears that Lady Montfort may not have the right, though the Dean and Chapter may have it. I think, therefore that the injunction must be continued, but the matter must be tried. "(/) 479. Where land is conveyed in fee, by deed of feoffment, subject to a perpetual ground-rent, and the feoffee covenants for himself, his heirs, ad- ministrators, and assigns, with the feoffor, the owner of the adjoining lands, his heirs, executors, administrators, and assigns, not to use the land in a particular manner, with the view to the more ample enjoyment by the feoffor of such adjoining lands, and the subsequent acts of the feoffor, or those claiming under him, have so altered the character and condition of the adjoining lands, that, with reference to the land conveyed, the restric- tion in the covenant ceases to bo applicable, according to the intent and spirit of the contract, a Court of equity will not interpose to enforce the covenant by granting an injunction to restrain the erection of additional buildings, but will leave the parties to their remedy (if they have any) at law.(^) (a) Winstanley v. Lee, 2 Swanst. 335. (b) 1 Vez. 543. (c) 3 Mer. C87. (J) Id. 688. (e) Sutton V. Lord Montfort, 4 Sini. 559, recognizing Attorney-General v. Nichol, IG Ves. 338. (/) Per Sir L. Shadwell, V. C. ib. (^) Bedford (Duke) v. British Museum (Trustees,) 2 My. & K. 552. 288 CRABBS LAW OF REAL PROPERTY. [*404] *SECTION X. RIGHT TO PEWS AND OTHER EASEMENTS. § 480. There are several rights, which have been admitted either as prescriptive rights, or such as may be claimed by a grant, express or implied, which, as they are to be enjoyed on the land of another, have been classed among the number of easements ; of these, the right to a pew or seat in the church deserves the first consideration. I. ^UijiUt to ^t\3is. § 481. No property in pews. May be claimed by Prescription or a Faculty. Disposition of the Seats. Right of the Churchwardens. Duty of the Churchwardens. Particular Rights. Prescriptive Right. Appendant to a house, not to Land. Pew cannot be severed from tlie House. Prescriptive. Apportionablc. 486. Priority of a Seat to be prescribed for. 482. 483, 484 485. § 487. Prescription, how to be proved. Evidence from Reparation. 490. FacuUJ^ Different Kinds. 491. Faculty revocable. 492. Faculty may be presumed. 493. Possessory Right to a Pew. 494. Wliat is a Disturbance, and its Etfect. Right triable at Common Law. 495. No Suit in Spiritual Court when Prescription is in question. 496. When the Ordinary has Cognisance. 497. Perturbation of Seat. Under this head may be considered, first, how claimed ; and, in the next place, disturbance of the right, and the remedies. 1. How cluimed. § 481. At common law there is no property in pews, they are erected for the use of the parishioners. The ordinary may by a faculty grant a pew -. to a particular person while he resides *in the parish, or there may L -^ be a prescription Avhich presupposes a faculty; but as to personal property in a pew, the law knows no such thing. (/t) Every man who settles as a householder has a right to call on the parish for%a convenient seat.(i) Although of common right the soil and freehold of the church is in the parson, (A:) yet the use of the body of the church and its repairs belong to the parishioners, and the disposing of the seats therein belongs to the ordinarj^, and therefore no one can claim a peculiar seat without special reason. (A-) The parson, or rector impropriate, is entitled to the chief seat in the chancel ;(/) but a grant of part of the chancel by a lay impropriator has been held not good.(m) " If this grant were good, it would take the chancel out of the jurisdiction of the ordinary." (n) (h) 3 Phill. 15. (i) 1 Consist. 194. (A-) Boothby v. Daily, Hob. 69. (m) Clifford v. Wicks, 1 B. & Ad. 498. (Z) Hall V. Ellis, Noy, 153. (n) Per Bayley, J., lb. RIGHT TO PEWS, ETC. 289 482. Parishioners are not at liberty to chose what seats they like ; the distribution of seats among them rests in the discretion of the ordinary, who, it is said, may place and displace whomsoever he pleases. (o) This discre- tion is commonly exercised by the churchwardens, who are the officers of the ordinary, as well as those of the parish. (p) To exclude the ordinary from his jurisdiction, it was necessary, before the Prescription Act, 2 & 3 W. 4, c. 71, not merely that a possession should be shown for many years, but that the pew should haA^e been built and repaired time out of mind.((/) 483. By custom, the church wardens may have the ordering of the seats, as in London, (r) and such a custom will be *good, and a prohibition r-^ir^f.-, will lie if the ordinary interpose ;(s) and the churchwardens must L J show some particular reason why they are to order the pews exclusively of the ordinary, for a general allegation, that the parishioners have used to repair and build all the scats in the church, and by reason thereof the churchwardens have used to order and dispose the seats, is not sufficient to take away the ordinary's power in disposing and ordering the seats, because this is no more than the parishioners are bound to do of common right, to wit, building and repairing the seats, for which they have the easement and convenience of sitting in them,(/) The authority of the churchwardens must be exercised justly and dis- creetly, or they may be corrected by the ordinary. (z/) They should place the parishioners according to their station ;(a.") and they cannot exercise this right in opposition to every legal and equitable claim. (?/) 484. A right to a pew in a church is an easement, (~) and a person claim- ing such right must show either a faculty or a prescri2:)tion.(a) It must be claimed as an appurtenant to a messuage within the parish, and the occu- pancy of it must pass with the house, and the individuals cannot, by con- tract between themselves, defeat the general right of the parish ;(Z;) so, a faculty is only to the first grantee, and cannot be transferred by hira,(c) for a seat in the church belongs not to the person, but to the house, and there- fore a grant to a man and his heirs is bad in point of law ;((:/■) so, where there i^ a prescriptive right, it cannot be exercised *by transferring p^^f>_,-i to persons not inhabitants of the house or parish. (e) L J So, a seat cannot be claimed by prescription as appendant to land, but to a house, for the seat belongs to the house in respect of the inhabitants thereof.(y) Extra-parochial persons, therefore, cannot establish a claim to a seat in the body of a parish church without proof of a prescriptive title, if (o) 2 Roll. Abr. 288. (/;) 1 Pliill. 31G; 1 Hn^g. 394. (v) Storks V. Booth, 1 T. R. 428 ; 1 Consist. 332. (r) Wats. C. L., c. 3:1. (s) 2 Roll. Rep. 2S8 ; but see contra, Presgravc v. Shrev^sbury (Cliurcliwardens,) 1 Salk. 167. (0 Wats. C. I-., c. 39. (;/) Willie V. Mott, 1 Ungg. 33. (x) 1 Phill. 323. (y) 3 Phill. 516, n. ; and sec further, Burn's E. L., Phill. ed., 359, a, b. (z) 3 Inst. 302. («) 1 Consist. 322 ; Fuller v. Lane, 2 Add. 247 ; Fry v. Flood, 2 Curt. 356, (b) 2 Consist. 319. (c) Stocks v. Booth, 1 T. R. 428. (of) Langlcy v. Chute, T. Raym. 246. See also Rogers v. Brook, cited 1 T. R. 431, n. (a). (e) 2 Consist. 319. (/f 1 Inst. 121, b. ; Gibbs. 222. 290 crabb's law of real property. they can establish it even by prescription ;(o•^ but a pew in an aisle or chancel may belong to a non-parishioner,(A) for the case of an aisle or chan- cel depends upon, and is governed by, other considerations ;(i) and in Davis V. Witts, (^) it was held, that a pew in the aisle of a church may be pre- scribed for as appurtenant to a house out of the parish. There is no such thing as a right to a pew in gross or at large; it is a right which can only be held as appurtenant to a messuage, and enjoyed by a person only so long as he continues to inhabit such messuage ;(/) therefore, a pew annexed by prescription to a messuage cannot, as has been erroneously imagined, be severed from the occupancy of the house, but passes with the messuage, the tenant of which for the time being has de jure the prescrip- tive right to the pew,(m) and it cannot be sold or let without an Act of Par- liament ;(n) therefore, where an occupier of a pew ceases to be an inhabitant of a parish, he cannot let the pew with, and thus annex it to his house, but it reverts to the churchwardens for their disposal ;(n) and a custom pleaded that pews are appurtenant to certain houses, and are let by the owner to persons who are not inhabitants of the parish, is bad ;(o) so, a permission by churchwardens for a person to sit in a pew temporarily, in order by r*4.nRl k"^*^pi"& possession for *the future tenant to carry into effect the L -^ conditions of sale of a house, is illegal as confirming a sale of the pew;(/;) but if a house to which a pew is appurtenant be let to a parish- ioner, in that character he is clearly entitled to the pew.(|7) 485. The right in a particular pew, when created by a faculty, may be apportioned ; therefore, where a faculty was granted to a man and his family, as owner and occupier of a certain dwelling-house, and the house was afterwards divided, the occupier of one part of the dwelling-house, though a very small part, was held to have some right, and therefore might maintain an action against the churchwardens for disturbing him in the enjoyment of it, Harris v. Drewe ;(r) and it was there said, the plaintiff having a right to use the pew, the churchwardens had no right to interfere as they did, and they were wrong-doers. "It may certainly happen, in consequence of a house having been subdivided, that three or four families may become entitled to the use of a pew belonging to the original messuage, and they may require more accommodation, and a question may arise how many persons are entitled to use the pew in respect of each of the subdivi- sions. That is, however, a matter to be settled among themselves. "(s) 48G. As a seat in a church may be prescribed for, so also may a priority of seat ; thus it Avas declared in the case of Carlton v. Hutton.(/) The Archbishop of York sent an inhibition to Carlton, until the matter should be determined before him, but prescription was surmised, and thereupon pro- hibition obtained, because as well priority of seat, as the seat itself, may be (ff) Byerley v. Windus, 5 B. & C. 1 ;> S. C, 7 D. & R. 564. See alsoHallack v. Cam- bridge University, 1 G. & D. 100. (A) Barrow v. Keen, 1 Sid. 361. (j) 2 Add. 427. (k) Forr. 14. {I) Mainwaring v. Giles, 5 B. & A. 360.b (m) 1 Hagg. Cons. 319. (n) 1 Tlagg. Rep. 319. (o) 1 Hagg. Cons. 317. ip) Blake V. Usborne, 3 Hagg. Rep. 726. (^/) 2 Add. 428. {r) 2 B. & Ad. 164.'-- (s) Per Littledalc, J., lb, (t) Noy, 78 ; S. C, Palm. 424 ; S. C, Latch, 116. *Eng. Com. Law Reps. xi. 137. ^Id. vii. 129. 'Id. xxii. 50. RIQHT TO PEWS, ETC. 291 claimed by prescription ;(?/) so, priority in a seat in the body or aisle of the church may be %ppropriated, and belong to a house, by faculty or p»j^r.q-i prescription, which presupposes a faculty. (a;) L J 487. It is necessary in the case of prescription to shew, that the use and occupation of the seat have from time immemorial been appurtenant to a certain messuage ;(?/) a prescriptive right must be clearly proved, the facts must not be equivocal, and they must be such, as are not inconsistent with the general right. (?/) Where a prescription is interrupted, a jury is not bound to presume a faculty from long undisturbed possession. (z) 488. Reparation from time to time is necessary to be pleaded and proved, in order to make out a prescription ;(«) if, therefore, a person prescribe that he and his ancestors, and all they whose estate he hath, have used to sit in a certain seat in the nave of the church time out of mind, in consideration that they have used time out of mind to repair the said seat, this is a good prescription, and the ordinary cannot displace him ;(6) so, if any repairs have been required within memory, it must be proved that they have been, made at the expense of the party setting up the prescription. The onus and bene/iciicm are supposed to go together; mere occupancy does not prove the right, (c) and mere repairing for thirty or forty years will not exclude the ordinary ;(rf) so, lining and putting new cushions into pews are not repairs, but mere ornament ; these are not usually done by the parish. (e) 489. In courts of common law mere occupation or user, or as it is more properly called, possession, if long continued, *has been considered p^i-irv-i sufficient evidence for a jury to presume a faculty ; therefore, in L -I Rogers v. Brooks, (/) a thirty-six years' exclusive possession was held suffi- cient presumptive evidence of a prescriptive right, although the church had been rebuilt about forty years before ; but in Stocks v. Booth(o-) it was held, that possession for above sixty years of a pew in a church was not a suffi- cient title to maintain an action upon the case for disturbance in the enjoy- ment of it, and that the plaintiffmust prove a prescriptive right or a faculty, and should claim it as appurtenant to a messuage ; so, in Griffith v. Matthews,(/t) where there was thirty years' mere possession, the seat, which was before open, having been built and inclosed during that time, it was left to a jury to consider whether, under all the circumstances of the case, this pew so erected was appurtenant to the plaintiff's messuage ; the jury found for the defendant and the Court refused a new trial. It was there said, "If it had not appeared when and at whose expense this pew was built, or that it had not been a pew before 1758, possession from that time would have been sufficient evidence .to have warranted the jury in presuming that a faculty had been granted. "(i) See also Morgan v. Curtis, (A:) where a pre- scription for a seat was held to be destroyed by showing that it was an open («) Gibs. 222. (x) 2 Roll. Abr. 288; Lonsley v. Hayward, 1 Y. & J. 583. (y) Pettman v. Brid^er, 1 Pliill. 324. («) Morgan v. Curtis, 3 Man. & Ry. 389. (a) Woolcombe v. Ouldridgc, 3 Add. 6. (h) 2 Roll. Abr. 288. (c) Pettman v. Bridger, sup. (d ) 2 Roll. Abr. 288 ; 1 liagg. Consist. 322. (e) 3 Pliill. 331. (/) 1 T. R. 431, n. fg-) Id. 428. (A) 3 T. R. 290. (t) Per Buller, J., lb. {k) 3 Man. &. Ry. 389. 292 crabb's law of real property. seat upwards of fifty years ago, but now, by the Prescription Act, 2 & 3 W. 4, c. 71, a claim to a pew after twenty years is not to be defeated by shew- ing its commencement prior to that time, see Dig. P. iii. tit. Prescription. 490. A pew may be annexed to a house by a faculty, as well as by pre- scription. (/) Faculties for the exclusive use of pews are of different descrip- tions ; as to a man and his family, so long as they continue inhabitants of a certain house, or so long as they continue inhabitants generally ; or appro- P^ .. .-, priating certain pews to certain messuages or *farm-houses, or L -' faculties at large : the first is considered the proper form of a grant of this description, and is the most usual in modern times ;(m) the second is objectionable, as it often entitles parishioners to the exclusive occupancy when they are no longer in a situation to be suitable occupants, whatever their ancestors may have been ;(n) the third sort is considered as the founda- tion of the prescriptive claims recognised, at common law.(o) The last kind of faculties appear to be merely void, as no faculty will be supported either at common law or in the ecclesiastical courts to the extent of entitling any person who is a non-parishioner to a seat in the body of the church. (/)) 491. It seems now to be settled that a faculty obtained by surprise and undue connivance may be revoked, (y) but the superior courts are reluctant to interfere with the inferior courts in matters of faculty, Woolcombe v. Ould- ridge,(r) where it was observed that faculties are generally so much within the discretion of the local judge, that there must be a considerable degree of general inconvenience to induce a reversal of his decree. When a faculty limited to a certain period expires, the right of the parish- ioners revives to the pews which were the subject of the faculty. (s) 492. A faculty, like a prescription, may be presumed, but mere posses- sion, though long continued, will not always be sufficient; therefore, where a pew in a chancel, claimed in right of a messuage, was shewn to have been erected on the site of old open seats in 1773, and there was no evidence of any faculty, it was held, that the judge rightly directed the jury, that the evidence of the former open state of the seats destroyed the prescription, j^ -, and left it to them to say *whether upon the evidence merely of L -^ long undisturbed possession, any faculty might be presumed, and a new trial was refused. (/) 493. Besides the right to a pew, acquired either by a faculty or a pre- scription, there is another sort of right which has been termed " possessory." This, by the ecclesiastical courts, is held sufficient to maintain a suit against a mere wrong-doer, and as the fact of possession implies either the virtual or actual authority of those having power to place, the disturber must show that he has been placed there by such authority, or must justify his disturbance by shewing a paramount right, a right paramount to the ordinary himself, namely, (Z) 1 T. R. 431. (m) Butt V. Jones, 2 Hagg. 417. («) Fuller v. Lane, 2 Add. 426 ; S. C, 1 Phill. 237. (o) Butt V. Jones, sup. ( p) 2 Add. 427 ; 5 B. & C. 21.^ (q) Butt v. Jones, sup. (r) 3 Add. 6. (s) 3 Ilagg. 733. (/) Morgan v. Curtis, 3 Man, &. Ry. 389. »Eng. Com. Law Reps. xi. 137. RIGHT TO PEWS, ETC. 293 a faculty ;(?<) the possession will have its weight, and the ordinary will give preference to a person in possession cseteris paribus over a mere stranger ;(«) and a possessory title is sufficient ground for resisting a faculty ;(a?) but this right is only co-extensive in duration with actual possession, and if this be abandoned the whole ceases. (?/) 2. Disturbance of the Right, and the Remedies, 494. Where a pew is claimed as annexed to a house either by faculty or prescription, the courts of common law exercise jurisdiction on the ground that a disturbance of a right to a pew is a detriment to the occupation of a house to which it is annexed ;(z) so, where the pew is in a chancel, the freehold of an individual, the right to it is triable at common law,(«) and it is properly triable by an action on the case ;(6) so, it is agreed that the plain- tiff need not shew reparation in his declaration, but he ought to prove repa- ration in evidence ;(6) but trespass will not lie for disturbance *of a man's right to a pew, because the plaintiff has not exclusive posses- L J sion, the freehold being in the parson ;(c) but such action can only be main- tained on proof of a faculty, or by such evidence as fairly leads to the pre- sumption of a faculty ; possession merely is not sufficient to support such an action. (rf) 495. In all cases of prescriptions for seats the ordinary has nothing to do with the matter, but it is solely determinable at the common law ;(c) and therefore, if a suit be commenced in the spiritual court, upon the account of prescription, a prohibition will lie for the party sued, because, whether the prescription be good or not, is not in the spiritual court to judge ;(/) but the spiritual courts may proceed upon libels grounded upon prescriptions, where the prescription is not denied ;("•) and the defendant, if he will, may admit the prescription to be tried, as the defendant does a modus or a pen- sion by prescription ;(/i) so, an action at common law will not lie for dis- turbing another in the possession of a pew unless the pew be annexed to a house in a parish, (i) the disturbance in that case, not concerning the free- hold, is matter for ecclesiastical cognizance only •,[i\ so, if a man claiming title by prescription to an aisle, chancel, &c., as his freehold, or to a pew or seat in the body of the church, or in an aisle, &c., as appurtenant to a house in the parish, is disturbed therein by the ordinary, or other, by a suit in the spiritual court, he may have a prohibition, if he suggest as grounds for it, that he, or those whose estate he hath, built or time out of mind repaired the same, and therefore had the sole use of such pew. (A;) («) Pettman v. Bridger, 1 Phill. 324. {x) Wilkinson v. Moss, 11 Lee, 259. iy) Woolcombe v. Ouldridge, 3 Add. 7. (z) Mainwaringr v. Giles, 5 B. & A. 362.y {(i) May V. Gilbert, 2 Bulstr. 151. (/>) lb. See Wats. C L., c. 39. (c) Stocks V. Booth, 1 T. R. 428. See also Noy, 78 ; 1 Sid. 88 {d) Stocks v. Booth, sup. (e) Hawkins v. Compicgnc, 3 Phill. 11. (./") VVitcher v. Cheslow, 1 VVils. 17. {g) Wats. C. L., c. 39. {h) Jacob V. Dallow, 2 Salk. 551 ; S. C, 2 Ld. Rayra. 755. (i) Mainwaring v. Giles, 5 B. & A. 362.z (A) See Corwen v. Pym, 12 Co. 105; Boothby v. Bailey, Hob. 69; Day v. Bedingfield, Noy, 104 ; Francis v. Ley, Cro. Jac. 366. yEng. Com. Law Reps. vii. 129. 'Id. 294 CRABBS LAW OF REAL PROPERTY. J, ,. .-, *496. If a party has not a title by prescription, the ordinary has L J conusance of any disturbance of a man's possession, Avhich is called "perturbation of a man's seat," and may quiet the same ;(/) and the ecclesi- astical court will admonish a wrong-doer not to disturb a person in the pos- session of a pew, although the latter has no well-founded title to it ;(??i) so, in a possessory action against a stranger and a wrong-doer, the plaintiff is not obliged to prove any repairs done by himself or others whose estate he hath,(?n) for it is a rule of law that one in possession need not shew any title or consideration for such possession against a wrong-doer ; but it is otherwise where one claims a pew or an aisle' against the ordinary, for he has prima fade the disposing of all the seats in the church ; therefore, against him a title or consideration must be shewn in the declaration, and proved as to the building and repairing. (n) 497. Perturbation of seat is a civil proceeding, which a party may have who has been disturbed in the possession and enjoyment of his seat, whether the disturbance proceeds from the churchwardens or a mere intruder; but against the churchwardens there is another remedy afforded by the ecclesi- astical court, which has been termed " a convenient remedy," namely, that of citing the churchwardens to shew cause why they have not seated cer- tain persons suitably to their condition, which mode was adopted in Walker v. Gunner,(o) and approved of by Lord Stowell.(o) [*415] ^11. ©tUcr 'Btimmtwxn. §499. 500. 501. 502. 503. 504. 505. 506. 507. 508. 509. 510, Extent of the Right of Burial. ^ Right to Support from the neigh- bouring Land. What an ancient House. Dodd V. Holme. When House not entitled to Privi- leges of an ancient House. Partridge v. Scott. Support from neighbouring Build- ings. Peyton V. TiOndon (Mayor, &c.) Brown v. Windsor. Effect of Negligence. Walters v. Pfeil, Dodd V. Holme. Trower v. Chadwick. Extent of tiie Right to Support from the neighbouring Building. Custom of London. Extent of the Right to Fences. Extent of the Liability to fence against Cattle. Right to hang Linen to dry. 511. 512. 513. 514. 515. 516. 517. 518. 519. 520. 521. 522. .523. 524. 525. 526. 527. Right to land with Nets. What Easements created by Li- cense. Effect of Parol Licenses. Hewlins v. Shippam. Monk V. Butler. Hoskins v. Robins. Rumsey v. Rawson. Harrison v. Parker. Fentiman v. Smith. Cocker v. Cowper. Bryan v. Whistler. License executed not revocable. Liggins V. Inge. Wallis V. Harrison. License not conferring a Freehold Interest. Wood V. Lake. Taylor v. Waters. License extinguishing an Ease- ment. Legalizing a Nuisance. (Z) Jacob V. Dallow, 2 Salk. 551 ; S. C, 2 Ld. Raym. 755. (m) Cross v. Salter, 3 T. R. 369. (n) Kenrick v. Taylor, 1 Wils. 326, recognized in Cross v. Salter. See also Ashby v. Freekliton, 3 Lev. 73. (o) 1 Hagg. 417. OTHER EASEMENTS. 295 § 498. Among the other rights which have been considered as easements, are a right to be buried in a particular vault ; a right to support from the neighbouring land ; a right to have fences maintained ; a right to hang linen to dry over the land of another ; and a right to land with nets on the banks of a river. 1. Right of Burial. 499. As a rule, every person may be buried in the churchyard of the parish Avhere he dies, without paj'ing anything for breaking the soil ;(/j) but a fee may be due by custom :((/) a custom, however, for a parishoner to bury *his deceased relations as near to their ancestors as possible is ^ . _-, not good ;(r) so, a mandamus will not lie to compel the incumbent L ^ to bury in a particular part of a churchyard, that being a matter to be left to the discretion of the incumbent ;(s) so, no person may be buried in the church without the incumbent's consent -,{1) but a prescription for a right of burial in a chancel, claimed as belonging to a messuage, was allowed in Waring v. Griffiths ;(t<) so, a burying-place may be prescribed for as belong- ing to a manor, and an action may be brought by the lord for disturbance of his burying there ;(.r) and the same rules are applicable to vaults as to pews,(?/) therefore, a right to make a vault and have the sole and exclusive use, if it could be granted by a rector, would be an easement ;(?/) but it seems that a rector can make no such grant, he can only give a license each, several time.(?/) 2. Right to Support from Land or Buildings. 500. It is laid down in Wilde v. Minsterley,(2r) " that a man who has land closely adjoining my land, cannot dig his land so near mine that mine would fall into his pit, and an action brought for such an act would lie ;" and this is confirmed in Wyatt v. Harrison, (o) where it is said, " It may be true that if my land adjoins that of another, and I have not by building increased the weight upon my soil, and my neighbour digs in his land, so as to occasion mine to fall in, he may be liable to an action ;"(6) but if A., seized in fee of land closely adjoining the land of B., erect a new house on the confines of such land, and B. afterwards dig his land so near to the foundation of A. 's house that it falls into the pit, still no action lies by A. against B., inasmuch as it was the fault of A. himself that he built his house so near the *iand of B., for he cannot by his own act prevent B. p*.,„-i from making the best use of his land that he can ;(c)(l) and this L -1 ip) Dogge, 146 ; 1 Hag-g. Cons. 208 ; 2 B. & A. 806. (9) Willes, 536. ()■) Fryer v. Johnson, 2 Wils. 28. (s) Ex parte Blackmore, 1 B. & Ad. 122.' it) Frances v. Ley, Cro. Jac. 307. {u) 1 Burr. 140; S. C, 2 Keny. 183. (x) Sir John Harvey's case, cited in Dawney v. Dee, Cro. Jac. 606. ((/) Bryan v. Whistler, 8 B. & C. 293 ;*- S. C, 2 Man. &, Rvl. 318. (2) 2 Roll. Abr. 5G4. (a) 3 B. & Ad. 874. {h) Per Tenterdcn, C. J., lb. (c; Wilde v. Minsterley, 2 Roll. Abr. 564. (1) The same point is decided" in Lasala v. Holbrook, 4 Paige, 169, in the case of a >Eng. Com. Law Reps. xx. 356. ''Id. xv. 219. »Id. xxiii. 205. 296 crabb's law of real property. principle is recognised in Wyatt v. Harrison, (fZ) wliich was a similar case, and it was said, " Whatever the law might be, if the damage complained of were in respect of an ancient messuage possessed by the plaintiff at the extremity of his own land, which circumstance of antiquity might imply the consent of the adjoining proprietor, at a former time, to the erection of a building in that situation, it is enough to say in this case, that the building is not alleged to be ancient, but may, as far as appears from the declaration, l^^ave been recently erected, and if so, then, according to the authorities, the plaintiff is not entitled to recover, for if I have laid an additional weight upon my land, it does not follow that he is to be deprived of the right of digging his own ground, because mine will then become incapable of sup- porting the artificial weight which I have laid upon it ; and this is consis- tent with 2 Roll. Abr.(e) The judgment will, therefore, be for the defendant."(/) 501. If a house has stood twenty years, it is now considered to have ac- quired the rights of an ancient house, whatever they may be, Dodd v. Holme, («•) where it was said, " Suppose the house to have been substan- tially built, to have stood thirty or forty years, and to have been kept in proper repair, do you say, that, if the defendant, by excavating his adjacent ground, let down that house, though without actual negligence on his part, action would not lie against him ?"(/i)(l) 502. But, a house will not have the privilege of support as an ancient house, if it appear to have been built upon ground previously excavated ; r*ll8'l therefore, in *Partridge v. Scott,(i) where a party built a house on L -^ his own land which had been previously excavated to its extremity for mining purposes, he did not acquire a right to support from the adjoin- ing land of another, at least not until twenty years had elapsed since the house first stood on the excavated land and was in part supported by the adjoining land, so that a grant by the owner of the adjoining land of such right to support might be inferred ; and in this case it was said, » Rights of this sort, if the}' can be established at all, must, we thinli, have their origin in grant. If a man builds his house at the extremity of his land, he does not thereby ac(|uire any right of easement, for support or otherwise, over the land of his neighbour. He has no right to load his own soil so as to make it require the support of that of his neighbour, unless he has some grant to (d) 3 B. & Afl. 874.1 («•) 564, (/) Per Ld. Tenterdcn, Id. Cf) 1 Ad. &. Ell. 493.6 (A) Per Littledale, J. lb, (i) 3 M. & VV, 220. building' erected more than thirty-eight years. So in case of an alteration of tlic level of a street, Caliendcr v. Marsh, 1 Pick. 434. Thurston' v, Hancock, 12 Mass, 220, though in this case the doctrine of prescription from user for twenty years though not adversely, is recognized. Panton v. Holland, 17 Johns. 92, is to the same effect. In Ricliart v, Scott, 7 W. 460, it was said no prtscriptis-e right could be, acquired where there had been no adverse user of another's property, however long it might be continued ; hence the rule as above stated in Lasala v. Holbrook is adopted. (1) Sec preceding note. •"Eng, Com, Law Reps, xxiii, 205, «Id xxviii. 128, RIGHT TO SUPPORT FROM BUILDINGS. 297 that effect ; AVyatt v. Harrison(y) is precisely in point as to this part of the case ; and we entirely agree with the opinion there pronounced, "(A;) " In this case, if the land, on which the plaintift^'s house v/as built, had not been previously excavated, the defendants might, without injury to the plaintiffj have worked their coal to the extremity of their own land, without even leaving a rib of ten yards, as they have done. And if the plantift had not built his house on excavated ground, the mere sinking of the ground itself would have been without injury. He has, therefore, by building on ground insufficiently supported, caused the injury to himself, without any fault on the part of the defendants, unless at the time, by some grant, he was entitled to additional support from the land of the defendants. There are no circumstances in the case from which we can infer any such grant as to the new house, because it has not existed twenty years ; nor as to the old house, because, though erected more than twenty years, it does not ap- pear that the coal under it may not have been excavated within twenty j'ears ; and no grant can at all events be inferred, nor could the right to any easement *became absolute even under Lord Tenterden's Act, (the p^^Tq-i Prescription Act, 2 & 3 W. 4, c. 71, see Dig. P. iii. tit. Prescription,) L -' until after the lapse of at least twenty years from the lime when the house first stood on excavated ground, and was supported in part by the defen- dants' land."(/) "If the law stood as it did before Lord Tenterden's Act, (s. 2, sup.), we should say that such a grant ought not to be inferred from any lapse of time short of twenty years, after the defendants might have been or were fully aware of the facts. And even since that act, the lapse of time, under these peculiar circumstances, would probably make no material difference ; for the proper construction of that act requires, that the easement should have been enjoyed for twenty years under a claim of right. Here neither party was acquainted with the fact that the easement was used at all ; for neither party knew of the excavation below the house. We should probably have been of opinion, that there was no user of the easement under a claim of right, and that Lord Tenterden's Act, therefore, would not apply to a case hke this." "We think, upon the whole, that the defendants are entitled to our judg- ment. "(/) 503. This principle appears also to be extended to the right to support from buildings, as well as from land ; therefore, in case by a reversioner of a house in Cheapslde against the owner of the adjoining house, for pull- ing it down without shoring up the plaintifi^'s house, in consequence whereof it was impaired and in part fell down, it Avas held, first, that, upon this declaration, the plaintiff" could not recover on the ground of the defendant's not having given notice that he was about to pull down his house, that not being alleged as a cause of the injury ; secondly, that, *as the plain- ps^o^-i tiff" had not alleged or proved any right to have his house supported L J by the defendant's, he was bound to protect himself by shoring, and could not complain that the defendant had neglected to do it.(?7i) (j) 3 B. & Ad. S74.f (it) Per Alderson, B., lb. (Z) Per Alderson, B., Wyatt v. Harrison, 3 B. & Ad. 874.S (7») Peyton v. London (Mayor, Sec), 9 B. &. C. 725. >> fEng. Com. Law Reps, xxiii. 205. eld. 'Id. jvii. 483. 298 crabb's law of real property. 504. Where an easement of this kind has been given, the owner of the premises can only use his rights subject to such easement; if, therefore, a party grant an easement, and then act so that it cannot be enjoyed, an action lies against him, as where a plaintiff' had rested his house upon a pine-end belonging to the defendant, and this had been originally done by permission of the owner of the wall, it was held, that where the defendant, by excavating near his pine-end wall, caused it to sink, so that the plaintiff^'s house which rested against it was injured, an action against him was supported. (n) 505. It appears that, where there is no claim of an easement, the owner of premises adjoining those pulled down must shore up his own in the 'nside, and do every thing proper to be done upon them for their preser- vation, (o) but still the omission so to do will not excuse negligence on the part of those taking down the adjoining house, (o) and although the founda- tion of the plaintiff''s house was proved to be rotten ; yet in Dodd v. Holme(;;) it is said, " A man has no right to accelerate the fall ^'(y) and in Trower v. Chadwick,(j') it is laid down, that " although a man may haA^e no right of ■ support from the building of his neighbour, yet if the latter choose to with- draw such support, he must take reasonable and proper care in so doing, and for negligence and unskilfulness he is hable to an action." r*49n *506. Where a party is entitled to the easement of support from L J his neighbour's building, it will be an invasion of that right if he does any injury to his neighbour's building in pulling down his own, although done with ever so much care, as was admitted in Trower v. Chad- wick ;(s) so, in Harris v. Ryding,(/) where there had been a grant of the minerals under the land, and the defendant removed them in such a man- ner as to cause the surface of the earth to fall in, this was held to be a vio- lation of the easement of support -which the plaintiff was entitled to, being the entire removal of the inferior strata, which, however done, was actionable. 507. Nearly allied to this easement of support from buildings is also the custom of London, by which a man may for the repair of his house, set his poles and ladders upon the soil or house of another adjoining ;(?/) but he cannot break the soil or house ;(t/) so, the builder of a house in London on a new foundation is not entitled to erect half of his flank or side wall on his neighbour's vacant ground. (a:) 3. Right to have Fences maintained. 508. As a rule, the proprietor of every land is bound, by means of fences or otherwise, to prevent his cattle from trespassing on the land of his neigh- (n) Brown v. Windsor, 1 Cr. & J. 20. (o) Walters v. Pfeil, Mood. & Malk. 364.' ( p) 1 Ad. & Ell. 493 -^ S. C, 3 Nev. &. Man. 739. (9) Per Ld. Denman, C. J. (?) 3 Bing. N. C. 334;' S. C, 3 Scott, 699. (s) 3 Bmg. N. C. 334 ;" S. C, 3 Scott, 699. (t) Cited Gale and WJiatley, Law of Easements, 265. (u) Priv. Lond. 59 ; Com. Dig. tit. London, (N. 5.) (x) 2 Bl. 959. iEng. Com. Law Reps. xxii. 334. ^Id. x.xviii. 128. 'Id. xxxii. 142. " d. xxxii. 142. OTHER EASEMENTS. 299 bour, "But he is under no legal obligation to keep up fences between ad- joining closes of which he is owner; and even where adjoining lands which had once belonged to different persons, one of whom was bound to repair the fences between the two, afterwards became the property of the same person, the pre-existing obligation to repair the fences was destroyed by the unity of ownership. And where the person, who has *so become ps^on-i the owner of the entirety, afterwards parts with one of the two L -^ closes, the obligation to repair the fences will not revive unless express words be introduced into the deed of conveyance for that purpose. "(?/) An obligation may, however, arise by a deed of agreement for one party to re- pair fences for the benefit of the owner of adjoining lands ; and in Boyle v, Tamlin,(2') it is said, "If there was proof of any such stipulation, I think it would support the allegation, that the defendant by reason of his possession was bound to repair. Such a right to have fences repaired by the owner of adjoining lands is in the nature of a grant of a distinct easement affecting the land of the grantor, (a) 509. This hability is, however, confined to the cattle of his neighbour, or such as are rightfully on the adjoining land, and does not extend to cattle whicJi have no right to be there, Dovaston v. Payne, (6) where it is said, " If the cattle of one man escape into the land of another, it is not any ex- cuse that the fences were out of repair, if the cattle were trespassers on the close from whence they came ;"(c) so, Anon., 3 Wils. 126, where it is said, " If a man turn his cattle into Blackacre where he has no right, and they escape and stray into my field, for want offences, he cannot excuse or justify himself for his cattle trespassing in my field. "(1) 4. Right to hang Linen to dry over the soil of another, ^-c. 510. A liberty to hang linen to dry on lines passing over the soil of an- other is an easement, which was recognized in Drewell v. Towler ;(^/) but, as the plaintiff claimed a liberty for him and the other tenants to hang linen as often as they had occasion so to do, at their free will and pleasure, and *the jury found that they had the liberty to dry the linen of their r*49q-| own families only, he was nonsuited. '- 5. Right to land with Nets. 511. The user of the banks of a river for more than twenty years by fishermen, who have occasionally sloped and levelled the same, is evidence of a grant by the owner of the soil, although both the fishery and the land- w iy) Per Baylcy, J., Boyle v. Tamlin, 6 B. & C. 337." (?) Sup. («) Per Bayley, J., Boyle v. Tumlin, sup. (Ji) 2 H. Bl. 527. (c) Per Heath, J., ib, {d) 3 B. & Ad. 735.« (1) Even where tliere arc statutes requiring- partition fences, the same rules are applied. Rust V. Low, 6 Mass. 90. Stacknole v. Healy, 16 id. 23. Little v. Latlirope, 5 Grcenl. 356. Avery v. Rlaxwell, 4 New Hamp. 36. "Wells v. Howell, 19 Johns. 145. Holladay V. Marsh, 3 Wend. 145. Adams v. M'Kenney, Addis. 258. "Eng. Com. Law Reps. xiii. 191. «Id. xxiii. 172. 300 crabb's law of real property. incr-place belonged to the same person, and there was no evidence to shew, that the former owner, or those who claimed under him, knew that the shore had been so used.(e) 512. The origin of every easement is referable to some agreement, ex- press or implied. The easements of the more important kind, as commons, ways, and water, are created either by grant or by prescription which sup- poses a grant, and uninterrupted possession or enjoyment has long been held to be sufficient evidence to be left to a jury to presume a grant ;(/) but, as to the minor rights above-mentioned, they have been created for the most part by license, and questions have arisen where the license was by parol, whether any right of this kind could be thereby created, and it seems to be now settled, that easements, like all other incorporeal hereditaments, must be under seal, therefore, a license by the lord of a manor to build a cottage on the waste gave no estate to the grantee, R. v. Harrow, (Inhabs. )(,§•) where it is said, "A license is not a grant, but may be recalled immediately, and so might this license the day after it was granted ;"(/') ^^^ ^^ is laid down, that a license or liberty (amongst other things) cannot be created and annexed to an estate of inheritance without deed.(i) « -. *513. On this principle, where, for a valuable consideration, the L J defendant and his landlord granted to A., his heirs and assigns, license and authority to make at his own expense a drain in his, the defend- ant's, land, and that A., his heirs and assigns, should have the foul water collected on his premises to run into such drain, it was held, that, as the right claimed was a freehold right, assuming that it was an easement only upon the land of another, and not an interest in the land, yet it could not be created without a deed,(/t) " for although a parol license might be an excuse for a trespass till such license were countermanded, a right and title to have a passage for the water is a freehold, which requires a deed to create it."(/)(l) 514. And the same had been decided by prior authorities in reference to different easements, as Monk v. Butler,(?7i) where the plaintiff in replevin answered an avowry for damage feasant by a plea of license from a com- moner who had right for twenty beasts ; it was objected, that, if the com- moner could license, he could not do so without deed, and of that opinion was the whole Court. (c) Gray v. Bond, 9 B. & B. 667.« (/) 2 Wms. Saund. 175, a. (g) 4 M. & S. 565. (A) Per Ld. Ellenborouffh, C. B., lb. (i) Shcph. Touclist. p. 231 ; 1 Inst. 9 ; Tcrmes de Ley, voc. Easement. (it) Hewlins v. Shippam,5 B. & C. 221 ;' S. C, 7 D. & R. 783 (1) Per Bayley J., 5 B. & C. 222. (m) Cro. Jar. 574 ; recognized in Hewlins v. Shippam, sup. (1) Hays V. Richardson, 1 Gill & Johns. 366. Cook v, Stearns, 1 Mass. 533, 534. Thompson v. Gregory, 4 Johns. 81. Subject to the equitable right acquired as an exe- cuted contract. Lcfevre v. Lefevre, 4 S. & R. 241. Reriek v. Kern, 14 S. &. R. 271. Ricker v. Kelly, 1 Greenl. 119, 120. Davenport v. Mason, 15 Mass. 92. 'Eng. Com. Law Reps. vi. 308. fid. xi. 207. OTHER EASEMENTS. 301 515. So, in Hoskins v. Robins, (n) an objection was taken to such a license on account of its not being stated to be by deed, and although the objection was overruled on the ground, that after verdict it must be taken that the license was by deed, yet the Court were unanimous in thinking that such a license could not be granted without deed. 516. A similar objection to such a license, after verdict on a collateral issue, was previously overruled, because the *Iicense was only to take the profit unicd uzce, and because no estate passed by it.(o) L ■*~'^J 517. So, in Flarrison v. Parker,(/?) where liberty and license, power and authority, were granted to the plaintitf and his heirs to build a bridge across a river, from plaintiff's close, to the close of A., and liberty and license to plaintiff to lay the foundation of one end on A.'s close, the grant was by deed. 518. So, in Fentiman v. Smith, where the plaintiff claimed to have a pas- sage for water, by a tunnel, over defendant's land. Lord Ellenborough lays it down distinctly, "The title to have the water flowing in the tunnel over defendant's land could not pass by parol license without deed, and the plain- tiff could not be entitled to it as stated in the declaration, by reason of his possession of the mill, but he had it by license of the defendant or by con- tract with him ; and if by license, it was revocable at any i\me.{q) 519. In a case subsequent to Hewlins v. Shippam,(r) where the previous authorities are collected, the plaintiff sued for the obstruction of a drain which had been originally constructed at the plaintiff's expense, on the defendant's land, by his consent verbally given. After it had been enjoyed for some time, the defendant obstructed the channel, so that the water was prevented running as before ; and the Court held that the plaintiff was clearly not entitled to recover. " The case of Hewhns v. Shippam,(r) is decisive to shew that an easement like this cannot be acquired except by deed, nor has the plaintiff acquired any other title to the water ; the mere entry into the close of another, and cutting *a drain there, cannot confer a title. fsV A distinction was there taken in argument which had in some cases L ''"J been admitted between an agreement executed and one executory, but the argument did not prevail, see infra, § 521. 520. In Bryan v. Whistler,(?) the right to be buried in a particular vault was held to be an easement which could be created by deed only ; and therefore a parol license was held to confer no right, though the plaintiff had paid a valuable consideration on the faith of the agreement. (?)) 2 Vent. 123 ; also cited in Hewlins v. Shippam, sup. (o) Rumscy v. Rawson, 1 Vent. 18; cited in Hewlins v. Shippam, 5 B. &, €.221;" S. C, 7 D. & R. 783. {p) 6 East, 154 ; recognized in Hewlins v. Shippam, sup. (9) 4 East, 109 ; recognized in Hewlins v. Shippam, 5 B. ^^ C. 201.1) {r) Sup. (s) Per Curiam, Cocker v. Cowper, 1 Cr., M. & R. 418. (<) 8 B. &. C 298 ;= S. C, 2 Man. & Ry. 318. t-Eng. Law Com. Reps, xi. 207. 'Id. xv. 219. November, 1846.— 20 302 ceabb's law of real property. So, in nn earlier case, a right to cany on a noisy trade was held not to be gained by a parol license. (.r) But it is not settled whether a parol license will confer an easement of light and air.(?/) 521. The rule that a parol license is revocable admits of exceptions upon dif- ferent grounds, as, first, where the license has been executed,( 1 ) in distinction from cases where it is executory only; in the next place, where the license does not confer a freehold interest ; and thirdl}^ where it operates to extin- quish an easement. The principal case of the first kind is Winter v. Brock- well, (z) where a parol license to put a skylight over the defendant's area (which impeded the light and air from coming to the plaintiff's dwelling through a window) could not be recalled at pleasure after it had been exe- cuted at the defendant's expense, at least not without tendering the expenses he had been put to, and therefore no action lay as for a private nuisance in stopping the light and air, &c., and communicating a stench from the defendant's premises to the plaintiff's house by means of such skylight. But this case is said to be clearly distinguishable from the present (Hewlins r*A.9'r'\ *^' Shippam)(o). All that the defendant there did, he did upon his L -^ own land. He claimed no right or easement upon the plaintiff's. The plaintiff claimed a right and easement against him, viz. the privilege of light and air through a parlour window, and a free passage for the smells of an adjoining house through defendant's area; and the only point there decided was, that, as the plaintiff had consented to the obstruction of such his easement, and had allowed the defendant to incur expense in making such obstruction, he could not retract that consent Avithout reimbursing the defendant that expense. But that was not the case of the grant of an ease- ment to be exercised upon the grantor's land, but a permission to the grantee to use his own land in a way in which, but for an easement of the plaintiff's, such grantee would have had a clear right to use it. (6)" 522. In Liggins v. Inge,(c) which was the case of a parol license to erect a weir, the Court held it not to be revocable, on the ground that it had been executed. "There is a clear distinction between a license to do something which in its own nature seems intended to be permanent, and by which expense is incurred, and a license to do acts which consist in repetition, as to walk in a park, to use a carriage-waj'-, to fish in the waters of another, or the like; which license, if countermanded, the party is but in the same situ- ation as he was before it was granted ; but this is a license to construct a work which is attended with expense to the party using the license, so that, after the same is countermanded, the party to whom it was granted may sustain a heavy loss, and it was the fault of the person himself if he meant Cx) Bradley v. Gill, 1 Lutw. 70. (y) Blanchard v. Bridges, 4 Ad. &, Ell. 195.<» (z) 8 East, 309. (a) 5 B. & C. 221 ;' S. C, 7 D. & R. 783. (6) Per Bayley, J., lb. (c) 7 Bing. 6D3.f (1) Ante, §513, note 1. dEng. Com. Law Reps. xxxi. 46. ^Id. xi. 207. fid. xx. 287. OTHER EASEMENTS. 303 to reserve the power of revoking such license after it was carried into effect, that he did not expressly reserve that right. (r/j" 523. In Wallis v. Harrison,(e) the same distinction hetween *agree- p^^gs"! ments executed and executory is recognized, therefore, a parol L license from A. to B. to enjoy an easement, as to make a railway over A.'s land, was held countermandable at any time while it was executory ; and if A. conveyed the land to another, the license was determined at once, with- out notice to B. of the transfer, and B. was liable in trespass if he after- wards entered upon the land. 524. In the next place, a license not conferring a freehold interest in land has been held not revocable, as in Wood v. Lake,(/) which was a license to stack coals on the close of another for seven years, and it was there held, that it could not be revoked at the end of three years ; so in Webb V. Paternoster,(o-) which was a license to lay a stack of hay on the land of Sir W, Plummer for a reasonable time, afterwards Sir W. Plummet leased the land, and the lessee turned in his cattle and ate the hay, for which an action was brought, and the whole Court held that such license was good, and could not be countermanded within a reasonable time, but that more than a reasonable time had elapsed, (half a year,) and therefore the hcense was at an end. 525. So, in Taylor v. Waters, (7i) which was an action against the door-keep- er of the Opera-house, for denying admission to the plaintiff", who was the hold- er of a silver ticket purporting to give him an entrance into that theatre for twenty-one years, it was objected that the right claimed was an interest in land, and being for more than three years could not pass without a writing signed by the party, or his agent authorised in writing, and moreover, that being an incoporeal hereditament it could only pass by deed ; the Court, however, held, that it was not such an interest in land as to require a deed, being only a license irrevocable *to permit the plaintiff" to enjoy cer- r^AOQl tain privileges thereon, and did not require to be in writing by the L -^ Statute of Frauds, though it extended beyond the term of three years ; and after citing Wood v. Lake,(i) Webb v. Paternoster,(J) and Winter v. Brock- well, (A:) it was added, " These cases abundantly prove that a license to enjoy a beneficial interest in land may he granted without deed.(Z)" So, in Hew- lins V. Shippam,(m) it is said, " Webb v. Paternoster, Wood v. Lake, and Taylor v. Waters,(n) were not cases of freehold interest, and in none of them was the objection taken that the right lay in grant, and therefore could not pass without deed. These, therefore cannot be considertd as authorities upon the point; and on these grounds therefore that the right claimed by the declarations (in this case) is a freehold right, and that if the thing claimed is to be considered as an easement, and not an interest in the land, such a right {d) Per Tindal, C. J., lb. (e) 4 M. & W. 538. ( /•) Say, 3. ig) Palm. 71 ; S. C, Poph. 151 ; S. C, 2 Roll. Pvep. 152. (h) 7 Taunt. 384.f (i) Say, 3. C ;■) Palm. 71 ; S. C, Poph. 151 ; S. C, 2 Roll. Rep. 153. (A-) 8 East, 309. (I) Per Gibbs, C. J., Taylor v. Waters, 7 Taunt. 384.S (w) 5 15. & C. 221.'' (n) Sup. f Eng. Cora. Law Reps. ii. 140. sId. ii. 140. Hd. .xi. 207. ' 304 crabb's law of real property. cannot be created without deed, we are of opinion that the nonsuit was right, and that the rule ought to be discharged ;(o)" but see WiUiams v. Morris. (/J) 526. When a license operates to extinguish an easement, it has also been held not to be revocable, as where permission was given to a man to erect a weir on his own land, which was incompatible with the continuance of the easement of water over it, to which the licenser was entitled ■,{q) for " there is nothing unreasonable in holding that aright which is gained by occupancy may be lost by abandonment. "(r) It is here assumed that a right to water is o-ained by mere occupancy, but this point has since been much discussed as to the extent to which it ought to be carried, see ante, § 417. *527. On the subject of easements generally, it remains only to [■430J Q]3ggj,yp^ t-i^at many acts done upon or in respect of the land of ano- ther, which, as being injurious, would be actionable nuisances, may, after the requisite period of enjoyment, become lawful, and the party acquire a prescriptive title to them as easements ; thus a right not to have water dis- charged upon one's land is an incident of property, and the infringment of that right is actionable, but a right to let water off, even in an impure state, may be acquired, like any other easement, by user ;(.s) so, aright to whole- some untainted air is at common law a right appurtenant to a house, and the communicating noisome smells is a nuisance, unless the business which creates the nuisance has been carried on there for so great a length of time, that the law will presume a grant from the neighbours in favour of the party who causes it ;(<)(!) so, user may justify the exercise of a noisy trade ;(?<) but nothing less than twenty years' user will suffice to legaHze a nuisance, and, therefore, where a defendant alleged a user of only three years, judg- ment was given against him.(/) 528. But whether, if the party complaining come to the nuisance, he have any right of action for the injury sustained thereby is not settled. It has been said, " If my neighbour makes a tan-yard so as to annoy and ren- der less salubrious the air of my house or garden, the law will furnish me Avith a remedy ; but if he is first in possession of the air, and I fix my habi- tation near him, the nuisance is of my own seeking, and may continue ;"(t') and this doctrine seems to derive some authority from Moore v. Browne ;{w) Leeds V. Shakesby ;(a:) Tenant v. Goldwin;(?/) Lawrence v. Obee ;(z) sed ^ *contra, 4 Ass., pi. 3 ; F. N. B. 124, H. ; Westbourne v. Mor- L'^^^^J daunt ;(«) Beswick v. Cunden ;(6) Penruddock's case;(c) Some v. BarwisJi;(rf) see also Roswell v. Prior.(e) (o) Per Baylev, J., Hcwlins v. Shippam, sup. (;■') 8 M. & W. 488. (n) Liffffins v." Ir.o-e, 7 Bing. 093.' (0 Per Tindal, C. J., lb. s) Wricrht V. Williams, 1 M. & W. 77. (0 Bliss v. Hall, 6 Scott, 500. (t) Elliotson V. Feelham, 2 Bing. N. C, 134 ;t S. C, 2 Scott, 174. U 2 Connn. 402. (w) Dy,. 319 b, pi. 17. (x) Cro. El. 351. (,;) 2 L(l. Raym. 1089 ; S. C, 1 Salk. 360. («) 3 Campb. 514. M Cro. El. 191. (/') Id. 402. (c) 5 Co. 101. {d) Cro. Jac. 231. {e) 12 Mod. 635 ; Gale and Whatley, Law of Easements, 277 et seq. (1) The right of the public is not thus affected. Commonwealth v. Miltenberger, 7 \V. 450 'Eng. Com. Law Reps. xx. 287. ''Id. xxix. 283. OFFICES. 305 SECTION XI. OFFICES. § 529. The subject of offices may be considered. 1. As to their nature and several kinds- 2. How created. 3. How granted. 4. Who may hold offices. 5. Execution of an office. 6. What estates may be had in an office. 7. How forfeited or lost. 8. Disturbance of an office. L jirtturt of ail ) 541. Notwithstanding the stress which is laid in most of the old cases (see Bac. Abr. tit. Offices, (D) ) on the necessity of the office, to make it binding on the successor, this is now held to be immaterial, Trelawny v. Winton (Bishop) (r), where it was held, not only an office and fee which existed prior to the statute of Elizabeth (1 El. c. 19) are not within the restraint of that statute, but that the necessity and utility of an office is not more material since than it was before the statute ;(r) but the ancient mode of granting the office must be pursued, and therefore if an office have been anciently granted to one, a grant to two for their lives will not bind the suc- cessor ;(s) so, if the office have been anciently granted to one with an ancient fee, and ^afterwards a grant be made to another in rever- (-^^gg-i sion, this will not be binding on the successor, because this might L J tend to the tying up the successor's hands in a most unreasonable manner. (^) 542. But as ancient offices are not within the 32 H. 8, c. 28, nor the 1 El. c. 19, and the 13 El. c. 10, (see Dig. P. iii. tit. Leases (Ecclesiastical), but remain entirely as at common law, they must, to bind the successors, be confirmed in the same manner as all other grants ot alienations by ecclesi- astical persons must then have been ;{t) and although a bishopric, deanery, or the like, were founded but of late times, yet the grant of such offices as are necessary, and cannot be exercised by the bishop or dean in person, may be allowed, together with a reasonable fee for the exercise thereof, (the reasonableness whereof the Court is to judge ;) for such grants cannot be said to tend to the impoverishment of the successor, but rather for his benefit, by providing officers fit and qualified to take care of the revenues, &c., and are not therefore within the restraint of the statute of Elizabeth. (i;) 543. Bishops may, however, grant offices for one, two, or three lives, if so they did before the 1 EL, otherwise not, Ridley v. Powne]l,(.r) and in this case several differences were taken and agreed to by the Court, ffi-st. That the bishop of a new bishopric may grant offices of necessity ; secondly, If an office hath been usually granted by the bishop of a new bishopric for three lives, with the consent or confirmation of the dean and chapter before the 1 El. c. 19, it may be now granted accordingly ; thirdly, Be the bishop- ric new or old, if it was not so granted, but- granted always before 1 El. for one or two lives, it cannot be granted for three hves ; fourthly, If it was (p) Bishop of Sarum's case, IC Co. 58. \q) Gee v. Friendland, Cro. Car. 47 ; see also Ley, 71. (r) 1 Burr. 219. ^ . ^, ^ (s) Bishop of Sarum's case, sup.; see also Curie's 11 Co. 4 ; Gee v. Fnedland, siip._ It) Bishop of Sarum's case, 10 Co. 58; see also Curio's case, 11 Co. 4; Gee v. Fried- land, Cro. Car. 47. (m) lb.; and see also Lev, 78; 2 Brownl. 137. Ix) 2 Lev. 3G ; S. C. noni. Ridley v. Founell, 3 Keb. 472. 310 crabb'slaw of real property. r*4^Ql a^^^'^^i before the 1 El, for *three lives, and after the statute but L -^ for one hfe, yet this shall not abridge the power of the bishop, but he may grant it for three lives, (^) see also Cro. Car. 258, March, 38, W. Jo. 31], wiiere it was held that such grants before Ehzabeth were evidence of their having been so granted. 544. Although grants of offices in reversion are held not to be good,(;r) yet this must be vmderstood of such offices only as have been ahvaj-s granted in possession ; where on the other hand they have been usually granted as well in reversion as in possession, a grant of such office for hfe, when by the death or surrender of the present olficer it shall become void, will be good and bind the successor, for such provision when duly confirmed may be sanctioned by custom and usage. (o) 545. Offices which are incident to others cannot be separated, so as for one to be granted and the other resexve&.[b) Also, what is incident to an office will pass with it ; if, thereibre, a house or land belong to an office, it will pass by the grant of the office, without being expressly named. (c) 546. An office in fee granted by a subject generally may it seems be assigned, (rf) and though it be an office of trust it may be granted to heirs and assigns ;(e) so, an office granted to one and his assigns may be assigned ;(/) but an office of trust cannot be assigned, without the assent of him who granted the' office, (o-) or if the patent does not mention deputy or assigns, though it be granted in fee ;(/i) and it is said that the office of r*di(M C'^rver could not be assigned,(/i)* nor the office of forester ;(i^ as to L -^ executing an office by deputy, see post, § 563. 3. For icliat Period an Office may be granted. 547. Offices with respect to their duration are distinguished according as the}' are granted to a man and his heirs, or to a man for life, for years, or at will. Those offices only are allowed to descend as inheritances where no incon- venience can ensue therefrom to the public, as the office of Earl Marshal of England, the offices of park-keeper, forester, gaoler, sheriff', &c. ;(A;) but, where a person has any office in himself and his heirs, he. may grant them to one, in remainder to another for life, for omne majus continet in se minits, for as they are grantable in fee, so they may be granted in succession to one for life with remainder over. (/J (y) Ridley v. Pownell, 2 Lev. 136; S. C. nom. Ridley v. FouneU, 3 Keb. 472. («) See ante, § 541. (a) Young v. Stoell, G?o. Car. 279 ; S. C. nom. Young v. Stowel, IMarch, 38 ; see also Young V. Fowler, Cro. Car. 555. (6) Dy. 175 a; And. 152. (c) 1 Inst. 49, a.; Vaugli. 178. ((/) Earl of Shrewsbury's case, 9 Co. 4S ; W. Jo. 113; Hardr. 425. (e) W. Jo. 113. (/) Hob. 170 ; W. Jo. 113. {g) 11 E. 4. 1 ; W. Jo. 121. (A) lb. ; sed. dub., 3 Mod. 151. (J) 4 Inst. 315. (A) Dy. 285 ; Plow. 3 ; 2 Inst. 392 ; 2 Roll. Abr. 153. (I) Plowden, 379, 381 ; Earl of Shrewsbury's case, 9 Co. 48 ; Sir George Reynell's case, Id. 97. N OFFICES. 311 548. At common law all officers of justice had a life estate, and could not be removed but for misconduct, and it was the same of the office of clerk of the Crown, both in the dueen's Bench and in Chancery, and the clerks of the Exchequer, and the filacer in the Common Pleas, " In which respect (sa3's Lord Coke) the wisdom and policy of the law was very great, because, when men held their offices for life, it was an encouragement to the faithful execution of their duty ; it was then, also, that they endeavoured to acquire knowledge and experience in their employments, having a durable and fixed estate therein, and not liable to be displaced at the pleasure of those who put them in."(m) For this reason it is, that the law construes the grants of offices favourably for the grantee ; therefore, if an office be granted to a man to have and enjoy so long as he shall behave himself well in it, the grantee has an estate for life, *for as nothing but his misbehaviour p*^^,-! can determine his interest, no man can prefix a shorter period than L -■ his life, since it must be his own act alone (which the law does not presume to foresee) which can make his estate of shorter continuance ;(w) so, if the office be granted to a man qxiamdiu se bene gesserit tantum, his estate will not be the less for the word tantum.iii^ 549. Though by the 37 H. 8, c. 1, s. 3, and 1 W. & M. s. 1, c. 21, it is provided, that the cuslos rotulonan shall appoint and nominate the clerk of the peace, who may execute it by himself or deput}^ for so long time only as he shall demean himself well, yet it has been held that the clerk has an office for life, and that it does not determine with the office of the custos;[o) and so, the judges of the several courts at Westminster (who formerly held their places durante bene placito,\{p'^ now, since the 12 W. 3, which pro- vides that their commissions shall be qiiamdiu se bene gesserent, hold their places for life, and can be removed only upon the address of both Houses of Parliament ; so, before the 7 & 8 W. 3, c. 27, the patents of the judges, sheriffs, and commissioners of oyer and terminer, &c., were determined by the demise of the Crown, but by that act, amended by the 1 Anne, c. 1, all patent officers are continued for six months after the demise of the Crown, and by the 1 G. 3, c. 23, it is declared that the offices of the judges shall in nowise be affected by such demise. 550. The appointment of the steward of a manor court beyond the life of the grantor, was admitted by an early case to be good;(«j') but it was not settled that such an appointment by a subject was equally good. In Bartlett V. Downs, ()•) it was held, that the lord of a manor may, by *deed p^i^oT grant the stewardship of the manor and of the courts thereto belong- L -• ing, for the life of the grantee ; in which case the doctrine as laid down by Lord Coke(s) is recognized, where he says, "If a man grant to another the office of the stewardship of the courts of his manor, with a certain fee, the grantor cannot discharge him of his service and attendance, because he hath profits which he should lose if he were discharged of his office ;"(s) but it (m) 1 Inst. 49. (rj) 1 Inst. 42; 1 Roll. Abr. 614 ; Shaw. V. C. IGl. (o) Harcourt v. Fox, 4 Mod. 167. (/)) 4 Inst. 74, 114. (q) Earl of Shrewsbury's case, 9 Co. 48. (r) 3 B. & C. 61G. (s) 1 Inst. 233. 313 crabb's law of real property. appears that where a plaintiff does not allege that there is any profit belong- ing to his office, he may be discharged by the vendee of a manor ;(f) so, to all grants for life of such an office as the parkership of a park and the like, a condition in law is annexed, that he should do what appertains to such office to be done.(w) 551. An office of trust and confidence, which concerns the administration of justice, such as the keepership of a prison, cannot be granted for years, for if it were granted for years, it would go to executors, which would be injurious to the public ;(:c) for the same reason it was held, that the office of remembrancer of the Exchequer, and other offices in the several courts of justice, could not be granted for j^ears ;(a;) such offices, however, 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 deputy without inconvenience, therefore, the office of garbler of the spices (when it existed) was adjudged to be a good grant or appointment for years, within the intent of 1 J. 1, c. 19;(2/) so, a grant for years of the office of registrar of policies of assurance in London was adjudged to be good ;(z) so, grants for years of other offices concerning trade had in early cases been adjudged to be r-^jjn-] good;(«) *but where a grant for years was made of the stewardship L -' of a court-leot and court-baron, this was held void as to the leet, being a judicial office, and good as to the court-baron. (i) 552. The office of sheriff may be granted by the queen durante bene placifo, (but see 24 G. 2, c. 48, Dig. p. iii. tit. Sheriffs,) but although she might determine the office at her pleasure, yet she could not determine it for part as for a particular vill, «fcc.,nor can she abridge the sheriff of any thing incident or appurtenant to his office ;(c) so, a sheriff may grant to his under- sheriff to hold at will only, for, being his deputy, he must, according to the nature of a deputation, be removable at pleasure. (rf) If an oflice be granted durante bene placifo, it shall not be determined at the will of the party, but only at the Avill of the queen, and, therefore, the party may surrender, and if forfeited, it shall be found by inquisition, and till a surrender or forfeiture he continues officer.(e) 553. A judicial office cannot be granted in reversion, for though the grantee be ever so fit a person at the time of the grant, he may become unfit when it takes effect ;(_/") and such grant of a stewardship in remainder or reversion, or after death, was held void in Stanton and Green's case ;(g") and so it was adjudged in Scambler v. Waters. (/t) So, on office partly judicial and partly ministerial, as the office of auditor of the Court of Wards was, cannot be granted in reversion ;[i) but such grant has always been holden good when there is usage to support it;(A') so, (0 Harvey V. Ncwlyn, Cro. El. 859. (?/) Litt., sect. 378. (x) Sir George RcyncU's case, 9 Co. 97. (y) Jones v. Clerk, Hard. 46, 353. (s) Dy. 303 ; Hob. 146. (a) 1 H. 7 ; 18 H. 8. (h) Howard v. Wood, 2 Lev. 245. (c) 4 Co. 33. (d) Hob. 13 ; Noy, 55. (e) 2 Salk. 466. ( f) Curie's case, 11 Co. 4; 1 Inst. 3. (?) Cited 10 Co. 61 ; Dy. 80, n. (58.) (h) Cro. El. 636. (0 Curie's case, sup. (i) W. Jo. 311 ; Cro. Car. 49 ; Hard. 357. OFFICES. 31* in case of the queen, for she has a general power to grant office^ in rever- sion without anjf usage ;(Z) so, tlie queen *inay grant an office to r-^^A^j-^ commence in fiduro, or upon a contingency, which estate it is said L -I shall arise out of the inheritance she has in the office itself.(wi) As to the persons who may or may not hold an office, see infra, § 554, and for what estate it may be held, see infra, § 578. IV. m^\\Q mvLP lioltf ) see further, as to the sale of offices. Dig. p. iii. tit. Offices. 575. There may also be a reversionary interest in an office. ( tc forfcftctr or lost. §576. Forfeiture of an Office by Abuser. 577. Forfeiture of an Office by Non- user. 578. WJiere Non-attendance is no For- feiture. 579. In respect of private Matters, 580. Breich of Conditicn. .581. Forfeiture by Refuser. 582. Forfeiture by whose Act. Tenant in Tail. Officer for Life. Deputy. 583. Joint Officers. 584. Forfeiture to the Crown. § 585. Loss of Office for insufficiency, 586. Scire Facias, when necessary. 587. Loss by Sale of Office. What Offices within the Statute, or otherwise. 588. Sale of OtBce, how far illegal at Com men Law. 589. Loss of Office by Acceptance of an- other Office. 590. By Destruction of the Thing to which the Office is annexed. 591. By Neglect to qualify. 592. By Demise of the Crown. 593. By Surrender. § 576. To every grant of an office is annexed a condition in law, that the officer shall do that which to the office belongs, and for breach of the condi- tion the office is forfeited. (?') An office may be forfeited three ways, namely, by abuser, by non-user, and by refuser. (p) Card V. Hope, 2 B. & C. 661.' tktt V. Downes, 3 B. Eng. Com. Law Reps. ix. 209. tJd. x. 201. (o) Per Ld. Loughborough, lb. (g) See ante, § 5i4. (r) Litt, s. 378 ; 1 Inst. 233. See also Bartktt v. Downes, 3 B. &, C. 617.'' OFFICES. 321 Wherever an officer acts contrary to the nature and duty of his office, the same is forfeited ;(s) as if a gaoler suffers voluntary escapes, (t) or is guiUy of extortion ;(w) so, if a sheriff suffer a felon to escape, whether voluntarily or negligently, it is a forfeiture, though the office be for life or in *fee ;(a') but one negligent escape is not a forfeiture, though it is r^, .p.„-, otherwise with a voluntary escape, or with two negligent escapes ;(?/) L -■ but the act of forfeiture by a gaoler, who has but a particular estate, as for life or years, does not affect him hi reversion or remainder who has the in- heritance, whose title shall immediately accrue upon such forfeiture, and not go to the queen. (z) So, it is to be understood, that if any keeper kill any deer without war- rant, and convert them to his own use, or cut any trees or underwood, it is a forfeiture of his office. («) 577. With respect to non-user of an office, a distinction is to be taken where the office concerns the administration of justice or the commonwealth, and when it concerns a private individual. (Z*) In the first case, the officer ex officio, or of necessity, ought to attend without demand or request ; in this case, therefore, by non-user or non-attendance, the office is forfeited, as the office of chamberlain, the Exchequer prothonotary, clerks of the war- rants, &c., in the Common Pleas, for the attendance of these officers is of necessity for the administration of justice, and the at4,endance of the clerk of the market is of necessity for the commonwealth. 578. So, non-attendance is a good cause of forfeiture of the office of recorder, his office being a public office relating to the administration of jus- tice, (c) But, when the officer ought not to attend and exercise his office but upon demand or request of him to whom he is officer, there non-attend- ance is no cause of forfeiture without demand or request made, as where the office of steward is granted to one to *hold courts when he shall be ^ required, it is implied in the grant that he is not bound to hold courts L J but upon request, and non-attendance without request made is no cause of forfeiture ;(rf) so, if a man grants an annuity pro consilio impendendo, he is not bound to give counsel, but upon request made.(e) But bare non-attend- ance will not be a cause of forfeiture ; therefore, where the king gave a license to a serjeant-at-arms for not attending the Chancellor, it was no for- feiture, though the license was only by parol ;(f\ so, if an officer be impri- soned for a misdemeanor in his office, non-attendance during his imprison- ment is no forfeiture, (g) particularly if the non-attendance arise from sickness or other inevitable accident. (A) (s) 1 Inst. 233, (0 R. v. Lenthal, 3 Mod. 143. - (m) R. v. liady Boughton, 2 Lev. 71. (x) Sir John Savage's case, Dy. 1.51 b ; 2 Roll. Abr. 155. ((/) 39 H. 6, c. 33; 2 Roll. Abr. 155 ; 2 Vern. 173. (z) R. V. Lady Boughton, 2 Lev. 71. See also Poph. 119. (a) 1 Inst. 233, citing 15 E. 4. 3, b. (/>) Earl of Shrewsbury's case, 9 Co. 50, (c) R. V. Ipswich (Bailifts, &c.), 2 Salk, 435 ; S. C, 2 Lord Rayni. 1233, See also 4 Burr, 1999, (rf) lb, (e) 30 H. 6, 22, cited Earl of Slu-ewsbury's case, 9 Co. 50 ; Biuin's case, Dy. 369. (/) Moor, 193, (s) R. v. Rooks, Cro, Car, 492. (A) lb. ; R, V, Wells (Corporation), 4 Burr. 1999. 322 crabb's law of real property. 579. When the office relates to any man's private concerns, and the officer ought ex officio to attend his office without request, there the non-user or non-attendance is no cause of forfeiture unless the non-user or non-atten- dance is cause of prejudice or damage to him whose officer he is, in some- thing which concerns his charge, as if a parker does not attend one or two days, and within those days no prejudice or damage happens, it is no forfei- ture, but if by reason of his absence persons unknown kill any deer, it is a forfeiture of his office, and therewith agrees 5 E. 4. 6, cited Earl of Shrews- bury's case.(i) 580. If conditions in law which are annexed to offices be not observed and fulfilled, the breach is a cause of forfeiture, whether it be by non-user or abuser ;(j) therefore, in the case of a searcher of customs in a port town, if neither the searcher himself nor any of his deputies attend, though it do ^ not appear *to be from actual negligence, yet this voluntary absence L by himself and his servants is deemed not crassa negligentia merely, but a voluntary omission and forfeiture ;(/i) so, too, " If a gaoler leaves the prison doors unlocked, and the prisoners escape, it is to be considered not only a negligent, but a voluntary escape ;"(/) for these conditions, being pro commodo regis et populi, arc held to be as strong and binding as express con- ditions ;(?n) and, therefore, though the office of forester, or the like, descend to an infant, or feme covert, (where by law they may so descend), 5^et if they are not exercised by sufficient deputies, they become forfeited, notwithstand- ing the natural debility of the principal ;(n) so, if a parker or forester cut down trees for reparations, so as not to leave sufficient for browse, shade, and cover for the game, this will be a forfeiture, because he breaks the condition annexed in law to his office, that he will preserve the game and not do any thing that may diminish and destroy them.(o) 581. As to refusal, in all cases where an officer is bound upon request to exercise an office, if he neglects to do it upon such request, he forfeits it, as if the steward of a manor is requested by the lord to hold a court, which he doth not, it is a forfeiture ;(p) so, as a recorder is bound to attend and assist at the sessions, to direct a corporation in the proceedings of justice, his non-attendance Avas held to be a cause of forfeiture ;(f/) but it must be a general refusal or neglect to attend, to occasion such a forfeiture. (r) -^ 582. If tenant in tail of an office commit a forfeiture, *this shall L J bind the issue by force of the condition facife annexed bylaw to the estate ;(s) but if an officer for life commit a forfeiture, this shall not affect him that hath the inheritance. (/) If the deputy of an office in fee does any act by which the office is for- (i) 9Co. .'JOb. (j) 11 E. 4. l,b. (k) R. V. Rooks, Cro. Car, 492. (/) Per Curiam, lb. (m) Lit., sect. 378, 379 ; 1 Inst. 233, 234. (n) 8 Co. 44 ; Cro. Car. 556 ; tiard. 11. (o) Litt., sect. 378, 379 ; 1 Inst. 233 ; Pembroke v. Berkeley, Cro. El. 385. See also Poph. 119 ; 1 And. 29 ; Moor, 707 ; 2 Mod. 121. («) Earl of Shrewsbury's case, 9 Co. 50 b. iq) Serjeant Whitacre's case, 2 Salk. 435 ; S. C, 2 Ld. Raym. 1233. (r) R. V. Wells (Corporation), 4 Burr. 1999. (s) Nevil's case, 7 Co. 34 b, citing 22 Ass. 34; 8 H. 4. 13; 39 H.6. 32; 11 E. 4. 1 ; 20 E. 4. 5, 6; Nevil's case, Plow. 370. (/) R. V. Lady Broughton, 2 Lev. 71. See also Poph. 119 ; 2 Roll. Abr. 153. OFFICES. 323 feited, the inheritance of the office is thereby lost;(«) but if a person having an office of inheritance, grants a lease of the same for life and the lessee commits a forfeiture, the office for life is forfeited to him in reversion and not to the Crown, (w) 583. Where an office is granted to two, and one of them is attainted of treason, the other shall not forfeit ; therefore, where the office of guardian and keeper of the park was granted to two, with a certain fee, during their lives, and the longest liver of them, to be exercised by them or their suffi- cient deputy, for whom they should answer, and one of them was attainted, it was held, that, being only an office of skill and confidence, the same was not forfeited, but that the other should hold the same with the profits inci- dent thereto ;(a?) but where it is an office of trust and confidence, and one of the joint officers is attainted, the entire office is forfeited to the queen, for she cannot make one to occupy in common with another. (?/) 584. If an office be forfeited, the Crown, as a rule, shall have the benefit of the forfeiture, (but see supra, § 582,) and, therefore, where a statute makes an office void for any cause, the queen shall have the forfeiture ;(;,) so, where the *office of archdeacon's register was forfeited under the (-^^/.i-i 5 & 6 E. 6, c. 16, against the sale of offices, it was held, that the L J archdeacon being disabled, the king as supreme ordinary should have the nomination, («) 585. Besides the above-mentioned causes of forfeiture, an office may be lost by other causes, as insufficiency, or inability to execute it, thus, if a superior put a deputy into an office, exerciseable by deputy, who is igno- rant and unskilful, or otherwise unable to fulfil the duties attached to it, this is a forfeiture of the office by the principal, and the grant is void, and the officer removable ;(6) so, though the queen herself grant an office in any of the courts of Westminster to a person who is insufficient, the judges, who are the proper persons to decide upon his abilities, are the proper persons to remove him ; therefore, where a filacer of the C. P. was absent from his office for two years, and had farmed out his office from year to year, without license from the Court, he was discharged by the chief justice, ex assensu sodorum suorifm, by words openly spoken in court ;(c) so, an officer was turned out, because that he spoliovit qi(xdam recorda contra officii siii debi- tum ;{d) so, a clerk of the peace is removed for not delivering the records to the new custos rotulorum.[e) 586. But an officer, who holds his office by patent, cannot be turned out without a scire facias.[f\ (u) Bro. Ahr. tit. Deputy, pi. 7. See a]so Dy. 278 ; Cro. El. 534 ; Poph. 119. (v) R. V. Manlove, 3 Lev. 288 ; S. C, 2 Salk. 469, recog-nizinjr Latly Bioiighton's case, sup. (x) Nevil's case, Plowd. 378. ly) Id. 380. Sec also Brook, tit. Office, pi. 51. (z) R. v. Manlove, 3 Lev. 289. (a) Woodward v. Foxe, 2 Lev. 289 ; S. C, 2 Vent. 187. (&) 4 Mod. 29, 30, Arg. (c) Dy. 114 b. pi. 64 ; S. C, 1 Roll. Abr. 155. {il) Pilkinn;ton's case, 1 Kcb. 597. (e) R. V. Evans, 4 Mod. 31, 32 ; S. C, Show. 282; S. C, 12 Mod. 13. See alsoCarth. 426; Ld. Raym. 158, 166; 2 Sir. 996; Holt, 88, pi. 1. (/) Dy. 155, 198, 211 ; 8 Co. 44; 9 Co. 98; 1 Inst, 233; Cro. Car. 60; 1 Roll. Abr. 580 ; 3 Lev. 288 ; 1 Sid. 81 ; 3 Mod. 335. 324 crabb's law of real property. ' So, though an officer be removed for insufficiency, it is said that he can- not be abridged of liis fee during his continuance. (g") r*4R9l *587. Again, an office may be lost by a sale thereof within the «- -* 5 & 6 E. 6, c. 16, and this statute extends to all offices which con- cern the administration of justice, as well in the spiritual courts, as in the courts of common law;(/i) so, to the office of warden of the Fleet ;(t) so, to all offices which concern the revenue of the Crown, (A;) as to the cofferer of the king's household, (/) or surveyor of the customs,(?7i) and it will be with- in the statute if a man for money, &c., surrender such an office, to the intent that the queen may grant it to another ;(«) so, an obligation for the perform- ance of covenants in an indenture will be void if there be anything relating to the sale of an office ;(o) so, where a trust is created, it is clearly within the statute ;(;;) so, an assignment of the emoluments of the office of clerk of the peace is invalid. (^) But the office of bailiff of a hundred is not within the statute, for it is not a place of trust ;(r) so, not a place in the Six Clerks' Office, for it is merely a ministerial office ;(«) so, not an office of inheritance ;(/) so, not an office for life or years derived from an office of inheritance ;(w) so, it is not within the statute if a deputy gives a bond to pay a moiety of the profits to his principal, for that amounts only to an allowance of the other moiety to the deputy for his trouble ;(a:) or a sum in gross out of the profits, for if the profits do not amount to it, it shall not be paid ;(2/) so, a less sum certain where the profits arc uncertain ;(?/) so, the -. statute does not extend to *commissions in the army ;(;::) so, not to L J the office of private secretary ;(a) so, not to pages of the pre- sence. (Z/) So, before 6 G. 4, cc. 82, 83, the sale of offices in the courts of Q,. B. and C. P. was not unlawful, see further as to the sale of offices under the different statutes. Dig. P. iii. tit. Offices. 588. It appears that the offering a bribe for procuring an appointment to a public office was a misdemeanor at common la\v;(c) and it has been decided, that the appointment of captain of an East-Indiaman, although not within the statute, (see supra, § 587,) cannot be sold by the owner without the consent of the East India Company, such a sale being Ueld contrary to a by-law of the company and also to the principles of public policy ;{d) and (C-) Cro. Jac. 17, 18. (h) 3 Inst. 148; 12 Co. 78 ; Cro. Jac. 269 ; 2 Vent. 267. (i) Iluijirins V. Bambridffe, Willcs, 241. {k) 1 Inst. 234. (/) Ing-i-ani's case, Cro. Jac. 386. {m) 2 And. 55. (n) 1 Inst. 234 ; 2 And. 57. (o) 2 And. 57. (p) Fordice v. Willis, 3 B. C. C. 579. See ante, § 574. Iq) Palmer v. Bate, 2 B. & B. 673 ;> S. C, 6 J. B. Moore, 28. (r) Godbolt's case, 4 Leon. 33. (s) Sparrow v. Reynolds, Bac. Abr. tit. Offices, (F.) (0 WiUes, 245. in) Ellis v. liiiddle, 2 Lev. 151. Iz) CJulliford v. De Cardoncll, 2 Snlk. 466; S. C. nom. CuUiford v. CardoneU, 1 Com. 1. (y) Godolphin v. Tudor, 2 Salk. 468. (z) Ive V. Ashe, Prec. in Chan. 199 ; Symonds v. Gibson, 2 Vcrn. 308 ; Morris v. M'Culloch, Anibl. 432. Sec also 5 Burr. 2698; 1 H. Bl. 326. («) HarriuiTton v. Kloproggc, 2 B. &, B. 678,'' n.; S. C, 6 J. B. Moore, 31, n.; 2 Chitt. Ca. toinp. IMansficld, 475. (h) Harrington v. Du Chatcl, 1 B. C. C. 121, (c) K. V. Vau) See Hal. MSS., cited Harg. Co. Litt. 16, b., n. (92.) • DIGNITIES. 329 § 600. A man may have a title to nobility or dignity by prescription or tenure, (f/) and in some few cases, as that of the earldom of Arundel, this claim has been allowed ;(r) *and the estates and dignities attached psc-.^rv-i the castle of Arundel are now vested in the family of the Duke L J of Norfolk. In the late case of the Berkeley peerage this claim was rejected. (s) 601. So, a man may be created by writ, as if -the queen by writ of sum- mons require any one to come to Parliament, and upon that he sits in the House of Peers, he is then baron, (A and this Avas the ancient way of crea- tion ;(^) but he is not a baron if he die before the return of the writ,(?<) or if he never sit in Parliament by force of the writ.(w) It was formerly held, that as dignities Avere annexed to land, the naming of some place was necessary in the creation of a dignity, but it has since been decided that it is not necessary, and in R. v. Knollys,(.i;) it is said that the naming a place is not essential in the creation of a dignity, and the earl- dom of Rivers is cited as an instance where no place is named. So, in Lord Purbeck's case,('j/) a distinction was taken between ancient honours as being feodary and officiary, and having relation to a place, and modern dig- nities, as being titular and personal, notwithstanding the formality of nam- ing a place in the creation. So, in the opinion of some, he must be invested according to the usual form of investiture, in order to make the dignity hereditary. (2;) So, the eldest sons of peers may be called, by writ of summons, by the name of title of a barony vested in their fathers, because in that case there is no danger of his children's losing their nobility in case he never takes his seat, for they will succeed to their grandfather ; and where the father's barony is limited to him and the heirs male of his body, and his eldest son is called up to the House of Lords *by writ, with the title of this p*^«i-| barony, the writ in^this case will not create a fee or general estate, so L J as to make a female capable of inheriting the title ; but upon the death of the father the two titles unite and become one and the same.(«) 602. So, a man may be created duke, marquis, earl, viscount, baron, or baronet, by letters-patent ;(6) and the first case of such a creation was 10th Oct. 11 R, 2 ; so, the queen may create an Irish peer under the Great Seal of England, but this must be by express words, being a special act of pre- rogative, for properly Avhat is done under the Great Seal of England relates to England ;(c) but, if the queen, by letters of safe conduct, denization, &c. to a noble foreigner, names him by his title, this does not make him a peer of the realm or noble here.((/) Although a man, who is created a baron by writ, must sit in Parliament in order to be noble, yet the case of nobility by letters-patent is different, for by them the creation is perfect, and the blood is ennobled without sitting; and therefore, in Lord Banbury's case,(e) held, (9) 1 Inst. 16. (»•) 1 BiJstr. 196. (s) First Lords' Rep. on the Di"^. of a Peer, 444 et seq, ; Nicholas's L'Isle Peerage, 361 et seq. See also 2 Salk. 509 ; Skinn. 437. (t) 1 Inst, 1 6 b. (m) lb. See also 12 Co. 70. (x) 1 Ld. Raym. ] 3. Oy) Show. P.C.I . (z) See 3 Cru. Dig. 138, 4th ed. («) 5 B. P. C. 509. (i) 1 Inst. 16, b. (0 R. V. Knollys, 2 Salk. 510. (d) Calvin's case, 7 Co. 16 a. (e) R. v, Knollys, 1 Ld. Raym. 10. 330 crabb's law of real property. that a peerage claimed under letters-patent is not triable by record of Par- liament. 603. So, a nnan may be made noble by Act of Parliament ;(^) but, if a noble foreigner be naturalized by Parliament, this will not make him noble here ;(/i) so, if a duke, baron, &c. of Scotland, (before the Union) or another kingdom, had a son and heir born in England, by which he is natural born, he Avill not be noble here.((/) 604. So, a dignity may be obtained by marriage, as if a duke, marquis, r*Af9l ^^'*^' ^^' '^^''"■'^s, the wife shall be noble for *her life ;{i) and if a . L 'J duke, earl, &c., who has the dignity in fee, has not a son, but seve- ral daughters, the queen may confer the dignity on him who marries any of the daughters, as she pleases ;(^) but in respect to a female there is a dif- ference when she is noble in her own right, and when by marriage, for if noble in her own right, she will still remain so, though she marry a com- moner ;(/) but if she be noble by marriage only, then by marrying a com- moner she loses her dignity. (/) If, however, she marries a peer, though her husband be of a loAver peerage than herself, yet, according to the letter, she will retain her own dignity ; as, if being a duchess by marriage she marries a baron, yet she continues a duchess ;(???) though, in this case, it is said, she shall have precedency only according to the rank of her hus- band ;(??) but it is said, in some of the books, that if a woman noble by birth marry one of inferior nobility, she shall be styled by the dignity of her second husband. (o) If a queen dowager takes a husband, noble or not noble, she shall not, by her subsequent marriage, lose her dignity ;(;;) so, though a woman who is noble in her own right will continue so notwith- standing her marriage with a commoner, yet her dignity communicates no rank or title to her husband, ((jr) see further infra, § 605. [ *473 ] *iii. ^:^\mt xrottitc mns tc itatr in a Disniti), ant» other XiTCitinits. §605. 606. 607. COS. 60!). 610, Different Ways of having an Inheri- tance in a Dignity. Distinction between Creation by Writ and Creation by Patent. Limitations of Dignities. Entailable. When not entailable. Entail not barrable. Estate ill Remainder, Estate for Life. Estate pur autre Vie. § 6n. Not subject to Curtesy. 612. Not subject to Dower. 613, Not alienable. Not to be surrendered. Not cxtinguishable. 61'4. Descent of Dignities. No Posscssio Fratris. 615. Eldest Sons created Barons. 616. Dignities not partible. 617. Modes of determining an Abeyance, § 605. A man (says Lord Coke) may have an inheritance in a title of (g-) W, Jo. 10. (/O Dodd. Nob, 4, (i) 1 Inst. 16, b. (i) 12 Co. 111. (0 Dy. 79 ; 1 Inst. 16, b. (m) 1 Inst. 16; 2 Inst. 50. (n) Ow. 82 ; but see as to precedency, 4 Inst. 361. (o) See Ow. 82 ; Bendl. 37." (p) 2 Inst. 50. (?) 1 Inst. 326. DIGNITIES. 331 nobility and dignity three manner of ways : by creation, b)'- descent, and by prescription. (»•) While dignities were annexed to lands, the person seised of the lands had the same estate in the dignity ; so, dignities created as well by patent as by writ, have many of the incidents of real property. (r) Dignities created by writ descend to females as well as to males ;(s) but, though they are said to be in fee,(/) yet it is not strictly so, for a person hav- ing a dignity of this kind is not tenant in fee simple of it, so that it should descend to the heirs general, lineal, or collateral of the person last seised; on the contrary, a dignity of this kind is only inheritable by such of his heirs as are lineally descended from the person first summoned to Parliament, and not to any other of his heirs. (t<) 606. Creation by writ is said to have one advantage over that by patent, that a person, created by writ, holds the dignity to him and his heirs, for the word " heirs" is not *necessary to a creation of nobility by writ, for |-^i-,j^-i when a man is called to the upper House of Parliament by writ, he i- ' -^ is a baron, and hath inheritance therein without this word ; yet the queen may, by the writ, limit the general state of inheritance created by the law and custom of the realm ;(.r) but, if he be created by writ, there must neces- sarily be the word " heirs," otherwise he has no inheritance. (a:) 607. If a dignity be created by letters-patent, the state of inheritance must be limited by apt words, otherwise the grant is void.(?/) A name of dignity may be entailed within the Statute de JJonis, as dukes, marquisses, earls, viscounts, barons, because they were originally named of some county, manor, town, or place, (see ante, § 600,) and consequently concerned land ;(2) thus it was resolved, that when Ralph Nevil was by letters created Earl of Westmoreland to him and the heirs male of his body, an estate tail was thereby raised, and not a fee conditional at common lavv;(a) so, a dignity may not only be entailed at its first creation, but also a dignity, originally descendible to heirs general, may be entailed by an Act of Parlia- ment upon the heirs male of the person seised thereof,(6) therefore, in a dispute, after the death of Henry de Vere, Earl of Oxford, respecting the right to that earldom, between Robert de Vere, claiming under the entail, created by the 16 R. 2, as heir male of the body of Aubrey de Vere, and •Lord Willoughby de Eresby, claiming as heir general, the judges, whose assistance was called in by the House of Lords, that is, the Lord Chief Justice Crew, Ld. Chief Baron Walter, Doddridge and Yelverton,Justices, and Baron Trevor, were unanimously of opinion, "that, although the earldom of Ox- ford was originally held in fee simple by the family of De Vere, yet that the honour of the said earldom of Oxford was entailed upon Aubrey de Vere and his heirs male by the Parliament of 16 R. 2, *and that an estate r-js^-.— i therein was sufficiently raised and created thereby, and was so re- L -' puted and enjoyed by many descents of the earls, which could not have been (as the same was limited) if the same had only been an ordinance of (r) 1 Inst. 16, a. See also Countess of Rutland's case, 6 Co. 52, 53 ; The Prince's case 8 Co, 17 ; 4 Inst. 126. (s) Skinn. 436 et scq. (/) 1 Inst. 6. (m) Id. 16, b; 1 Wood. 37. {x) Lord Veseye's case, 27 H. 6, cited 1 Inst. 9, b. (y) 1 Inst. 16, b. (z) Id. 20, a. (a) Ncvil's case, 7 Co. 33. (h) Coll. Claims Peer. 173. 332 crabb's laav of real property. Parliament ; that, therefore, the said honour descended, and then of right belonged to Robert De Vere as heir male of the said Aubrey, by virtue of the entail." (c) 608. It was resolved, Pasch. 9 Jac. 1, if the king did not create a man of some place, he should not have an estate tail, but a fee simple conditional, which should be forfeited for felony, but if he created him a baronet of some place, then he should have an estate tail within the Statute de Donis.[d) But, though dignities and titles are thus entailed as tenements within the statute, yet neither the donee nor his issue could bar the entail, by fine or recovery, before the 3 & 4 W. 4, c. 74, (see Dig. P. ii. tit. Fines and Recoveries,) nor by any other means, as might or may now be done under that Act in the case of other entailable things. (e) 609. An estate in a dignity may also be limited to a person in remainder, after the determination of an estate tail ; thus the earldom of Northumber- land was granted to Thomas Percy and the heirs male of his body, and for default of such issue, to Henry his brother, and the heirs male of his body.(/) 610. So, the queen may create either man or woman noble for life,(^) but not, it is said, for years, because then it might go to executors and adminis- trators. (A) Whether a dignity may be granted pur autre vie is not so settled. In . -, an early case it is intimated that a man xndcy be *noble during the L -' life of another ;(i) and Mr. Justice Dodderidge, in his Treatise on Dignities, observes, that the king may grant peerages pur autre vie, " as (howeveV, he adds by way of qualification) it has been said." In a late case(A;) it is observed, " that the Crown may grant a peerage for life, not only of the grantee, but also pur autre vie. The most common way of doing this is by a grant to the son during the life of the father, by calling the son by another title to this house, such a title will enure during the father's life, and on his death the succession will operate by way of merger, so that the two will become but one dignity. (See ante, § 601). "But although this is the common and usual way, it is not the only way in which such a title may be granted. The cestui que vie may be the ancestor or not, and then observe, my lords, what is the consequence of this singular reservation ; a man does not know in one day whether he shall be noble or commoner the next;"(/) so in the same case it was said, " Is the blood of a man to be en- nobled only for a time ? I say no, for being once ennobled, it must be so till crime has worked a forfeiture of his nobility. "(hi) 611. It seems also doubtful, whether a dignity is subject to curtesy. While dignities Avere annexed to castles, manors, &c., the husband of a wo- (c) Coll. Claims Peer. 173. See also W. Jo. 96. (d) 12 Co. 81. (e) Lord Purbeck's case, Show. P. C. 1 ; Coll. Claims, 293. (/) Nevil's case, 7 Co. 33. {g) Reynel's case, 9 Co. 97, (A) 1 Inst. 16, b ; but sec cont., Dodd. Nob. 401. (t) 52 H. 6, 29. (k) Earl of Devon's case, 2 Dow &. Clark, 203, {I) Per Lord Brougham, C, lb. {m) Per Lord Wynford, lb. DIGNITIES. 333 man possessed of such castles, &c., was bound, among other services due to the Crown, to attend in Parliament, and, consequently, enjoyed the dignity during the joint lives of himself and his wife, of which some early examples are cited by Mr. Cruise, 3 Dig. 150, 4th ed. ; but in the time of Lord Coke this point was much discussed, and by him is left doubtful ;(n) but the better opinion in modern times is that there is no curtesy in titles of honour, (o) *612. So, a woman shall not be endowed of a family mansion, pjj:./,«-| which is a caput baronix or the capital mansion ;(/>) but this is to L J be understood as applicable only to baronies by tenure, of which it is said that there is only one now remaining, namely, the barony of Arundel, and, therefore, creating a person baron by a title taken from a principal mansion house in his possession will not make the house caput baronise, so as to exclude the wife from dower.(<7) 613. Dignities by tenure appear to have been formerly alienable, provi- ded such alienation was made with the consent of the Crown ;(r) but when dignities ceased to be annexed to the possessions of land, and came to be considered as personal inheritances, the right of alienation ceased, and it became a settled rule that a dignity was an hereditament, inherent in the blood of the first grantee, and his descendants, and was therefore unalien- able ;(s) therefore, in the case of an entail they cannot be barred. (/) So, not surrendered to the Crown ;(<) so, it seems to be now settled, that it will not be extinguished by the acceptance of a new title, "for the greater dignity dolh never drown the lesser dignity, but both stand together in one person, and therefore, if a knight be created a baron, yet he remaineth a knight still ; and if the baron be created an earl, yet the dignity of a baron remains, e^ sic de casteris ^^\i(^ although this point was doubted in Lord Delawarre's case,(:r) yet it was settled in the case of the barony of Wil- loughby de Broke ;(?/) so, where a person having a barony by writ is made an earl, held, contrary to a former supposition, that the earldom will not attract the barony, but at his death, leaving a daughter only and a p# j^ot younger *brother, the barony would descend to the daughter, and L J the earldom to the younger brother ;(^) so, if the earldom becomes extinct, the barony will descend to the lieir.(«^ 614. The descent of dignities by tenure was guided by the same rules as regulated the descent of the castles and manoi*s, &c., to which they were annexed, as to which see post. Title to Things Real. The descent of dignities created by writ differs from the descent of lands, inasmuch as there can be no other possession had thereof but such as (n) 1 Inst. 29, b. (o) Harg. Co. Litt. 20, h, n. (1). (p) 1 Inst. 31. b. Ol) Gerard v. Gerard, 1 Ld. Raym. 72 ; S. C, 5 Mod. 64 ; 3 Lev. 401. ()■) 4 Inst. 126 ; Ryl. Plact. Pari. .547. (s) 3rd. Rep. on the Dig of a Peer, p. ] 7. Sec Journ., vol. 4, p. 150 ; also 3 Cruise, Diff. 15.3, 4th ed. (/) Purbeck's case, Show. P. C. 1 ; Coll. Claims, 2.93. {11) 2 Inst. 594. (x) 11 Co. 1 ; Coll. Claims, 122. (y) Coll. Claims, 321. (i) Coll. 1()2. (a) Id. 286. November, 1846 22 334 crabb's law of real propertt. descends (as to be a duke, marquis, earl, viscount, or baron) to a man and his heirs ; therefore, before the 3 & 4 W. 4, c. 27, (abolishing this dis- tinction,) there could be no possessio fratris of a dignity to make the sister inherit, but the younger brother being heir to his father should inherit the dignity, inherent to the blood, as heir to him that was first created noble. (6) 615. "Where baronies are created by writ of summons to the eldest sons of peers, by the name of baronies vested in their fathers, (see ante, § 601,) they are held to be hereditary in ihe blood of the persons so summoned, and descendible to their heirs ; therefore, if the son dies in the lifetime of his father, the dignity will descend to his son ;(c) but if the father has only an estate tail in the barony, the estate of the son, though summoned by writ, is not enlarged, nor made a fee, descendible to heirs in general; therefore, where the eldest son was summoned by writ in the name of a barony not vested in his father, it has been determined that his son could not establish his claim to be summoned by writ.(c) 616. As dignities are of an impartible nature, when any dignity descends _-. to coheirs, it falls into suspense or abeyance. (f/) *This. abeyance L J may be determined two ways: first, by the Crown, the fountain of honour and dignity, conferring it on whom the sovereign pleases ; secondly, by the death of all the coheirs but one. A remarkable instance of the exercise of the prerogative in reviving titles after an abe3-ance, took place in the person of Mr. Norborn Berkley, who was called to the House of Peers in right of the old barony of Botetourt, after an abeyance of several centuries, and was allowed to sit according to the antiquit}' of that barony ;(e) and it has been decided that the queen may dispose of the dignity to either one of the coheirs at her pleasure, but not to a stranger ,'(y) so, it has been held, that it is in her Majesty's power to suspend the dignity, but not to extinguish the same.(ir) As to the second case, where there is but one co- heir, it has been decided that the attainder of one of the coheirs for high treason did not terminate the abeyance, and give the other a right to the barony. (o') . 017. "When the abeyance of a barony is terminated in favour of a com- moner, a writ of summons is directed to be issued to him by the style and title of the barony which is in abeyance ; but where the person in whose favour an abeyance is determined is already a peer, and has a higher dignity, then the barony is confirmed to him by letters-patent, and in the case of a female, the abeyance is also terminated by letters-patent, (/i) Fonnerly it was the practice to confirm the barony to the coheirs and his or her heirs, but now it is more properly confirmed to the heirs of his or {h) I Inst. 15, b. ; Lord Grer's case, Cro. Car. GO, recognizing^ RatclifTs case, 3 Co. 42. 'f) Barony of Sydney, printed case, lTS-2. See also the L'IsIe Peerage case, p. 14. {d) F. N. B. tit."Part"ition, 1 Inst. 165, a.; '2 Diigd. Bar. 3G.3. (e) Cas. in Dom. Free, for 1761. See furtlier, Harg. Co. Lilt. 165, a., n. (6j ; 2 Dugd. Bar. 363 ; Journ., vol. 15, p. 44-2 et seq. .'/) Barony of Willouirhby de Broke, Coll. 322. :^) Barony of Clifford, Coll. 306. (A) 3 Cruise, 192, 4th ed. DIGNITIES. 335 her body, for no one can be heir of the body of the person in whose favour the abeyance is determined, without being also Hneally descended from the person first summoned. (/i) *iv. f^ob) lost or rccoterctr. [*480] § 618. Forfeited by Attainder for Trea- son. By Attainder for Felony. 619. Corruption of Blood. 620. Honour taken away for Poverty. 620. By what other Modes a Dignity may be lost, or otlicrwise. 621. Restoration of Blood. 622. Disputed claims, how tried. By Record. 622. By a Jury. § 618. A peer cannot be degraded but by attainder or by Act of Parlia- ment ; a peerage may, however, be lost for want of heirs, but a peer cannot divest himself of his honour. (t) Dignities of every kind are forfeited by attainder for treason, and can be revived only by a reversal of the attainder, but where a person was tenant in tail of a dignity, remainder in tail to another, and the first tenant in tail was attainted of high treason, the dignity was held forfeited as to him and his descendants, but not as to him in remainder ;(/?) so, a dignity created by writ, and descendible to heirs in general, is also forfeited by attainder for felony of the person possessed of it, for, in the words of Lord Coke, " If he was noble or gentle before, he, and all his posterit}^ are by the attainder made ignoble ;(/) but dignities in tail are not forfeited by attainder for felony, except during the hfe of the person attainted, for the 26 FI. 8, c. 13, which subjects estates tail to forfeiture for high treason, does not extend to attain- ders for felony, as in the case of Lord Stourton,(m) and again in Earl Fer- rer s case ,(n) 619. The blood of a person attainted being corrupted, no pedigree can be derived through him ;(o) therefore, where a *dignity descends to r-f^jc,-,-, heirs general, the attainder for treason or felony of any ancestor of l. J a person claiming such dignity, though the person attainted was never pos- sessed of the dignity, will bar his claim, for the blood of the person being corrupted, no pedigree can be derived through him ;(jo) and so decided in the case of the Baronj'^ of Lumley ;(5') but this does not extend to entailed dignities, therefore, a dignity may be claimed by a son surviving an attainted father, who never possessed the dignity ;(r) for the son may claim from the first grantee per formam doni,{^s\ and so it has since been decided ',{t) but (h) 3 Cruise, 192, 4th ed. (i) R. V. Knowles, 12 Mood. 56. {k) Ncvil's case, 7 Co. 33 a.; 2 Coll. Peer, 321. (i) 1 Inst. 41. (?/?) Journ.,vol. 1, p. 731. (n) Eden, Rep. Append. (o) 1 Inst. 391. {p) Lumley's case, 2 Hale, P. C. 356. {q) Cited, 3 Cruise, 159, 4th ed. (r) Lord Lumley's case, cited 3 Co. 10 ; 2 Hale, P. C. 356. (s) Digby's case, 8 Co. 166 a. (() Duke of Athol's case, Lords' Journ., vol. 30. 336 crabb's law of real property. where the person attainted survives the ancestor who possessed the dignity, it has been decided that the dignity reverted to the Crown, and could not be claimed by any collateral relative of the person. (w) 620. As every one of the nobility is presumed in law to have sufficient freehold ad sustinendumnonien et onus, ii^ one that is noble want possessions to maintain his estate, it has been held reason sufficient to degrade him, as in the case of George Nevill, Duke of Bedford, who was degraded by act of Parliament ;(a:) but a dignity can be taken away by Act of Parliament onl3',(?/) it cannot be taken away by order of the lords in Parliament •,[z\ so, a dignity or nobility cannot be extinguished except by Act of Parliament, if it be not forfeited, (o) or unless lost by marriage, as in the case of a woman, see ante, § 904. So, a dignity will not be extinguished by acceptance of another dignity, (see ante, § 613 ;) so, a dignity shall not be lost, as in the case of lands, by r*4ft9"l '^^""Claim, before the 3 & 4 W. *4, c. 27, (see Dig. P. iii. tit. Limi- L -^ tations,) for the statutes of limitation did not extend to it ;(i) so, not even in case of adverse possession by persons not entitled. (c) 621. In cases of attainder for treason or felony, the corruption of blood can be restored by Parliament only. Restitution may be either as to the corruption of blood only, or it may be a general restitution not only to blood, but also to lands and honours. (cZ) When a person is outlawed for treason or felony the blood is also corrupted, but may be restored either by Act of Par- liament, reversal of the outlawry, or writ of error. Formerly a writ of error to reverse an outlawry in a criminal matter was held to be merely ex gratia regis, and not grantable ex debito jiistitise ;{€) afterwards it was held to be grantable as matter of right in all cases under treason and felony, (y) but now it cannot issue without a. Jiat from the Attorney-General. (^o-j 622. If there be a dispute whether a man be a peer or no, it shall be tried by record of Parliament, (/i) for generally all matters of record shall be tried by the record itself ;(<) but this applies properly to baronies by writ, and where the baron has taken his seat, (see ante, § 601,) for unless he has taken his seat it cannot appear by record ;(J) but it is different with baronies by patent, for by them the creation is perfect and the blood is ennobled with- out sitting ; therefore, it has been held that a peerage claimed under letters- patent is not triable by the record of Parliament, but must be questioned by pleading non concessit ;{k\ and where a man claims by descent, though he ought to produce the patent of creation, yet being a matter of fact -, *whether A. is the son of B. or no, it is triable jjer pais, in the same L -^ manner as countess or no countess, where one is a countess by marriage. (/) (?/) Airlie earklom, printed case, 1812. See further 3 Cruise, 159 et seq., 4th ed. (z) 12 Co. 107 ; 4 Inst. 355 ; Rot. Pari. vol. 6, p. 173. (y) Earl of Shrewsbury's case, 12 Co. 106 b, {z) 2 Salk. 511. (a) Skinn. 437. (h) Skinn. 437. (c) Barony of Willoughby of Parham, Lords' Journ., vol. 31, p. 358 ; 3 Cruise, 184, 4th ed. {(1) 3 Inst., c. 106 ; Hale, P. C, c.27. (e) 1 Vern. 170; 2 Burr. 25, 50. (/) Salk. 264. {g) 4 Burr. 2551. (J>) 1 Inst. 16 b. (i) 9 Co. 31 a. (j) 1 lust. 16 b. I^k) R. V. Knolleys, 1 I.d. Raym. 10. (/) Skinn. 520. See also the Countess of Rutland's case, 6 Co. 33. FRANCHISES. 337 If any one becomes heir to a barony and be not summoned to Parliament, he may sue to the queen by petition of right, and thereupon it will be refer- red to the Lords. (??i) As to determining an abeyance, see ante, § 617. SECTION XIII. FRANCHISES. § 623. A franchise is another species of incoporeal hereditament, which may be considered under the following heads : — 1. The nature of a franchise, and its different kinds. 2. How claimed. 3. How lost or destroyed. I. Mature of a iFmnchtse, auti tUc tiiffcrcnt 3Xmtis. § 623. Definition of a Franchise. ( § 623. Different Kinds. § 623. A franchise, sometimes called a liberty, is a " royal privilege, or a branch of the queen's prerogative, subsisting in the hands of a subject. "(n) Of franchises there are divers kinds, which being more or less connected with land, are here entitled to notice. *I. STo Ijabc n iFovcst, ©Jjacc, or SSfaircn. [*484] § 624. What is a Forest, 625. What is tlie Purlieu oftlie Forest. 626. Nuisances, &.c. in the Forest. § 627. Wliat Wood esteemed Vert. Wlio may cut Wood. 628. Land Revenue oftlie Crown. 629. Chace and Warren. § 624. A forest is a circuit of ground properly under the queen's protec- tion, for the peaceable living and abiding of beasts of venery and chace, and distinguished not only by having bounds and privileges, but also by having courts and offices ;(o) but it is not proved to be a forest by being called a forest in records &c.(o) A forest may be in the hands of a subject, for it may be granted by the sovereign, subject to the forest laws, as it was in the case of the Dukes of Norfolk and Lancaster, who had forests so subject to the forest laws ;(j3) but if the jurisdiction be not added in the grant, it (m) W. .To. 07. (n) 2 Comm. 37. (o) Case of Leicester Forest, 12 Co. 22. ip) Manvv. For. Laws. 40 ; 4 Inst. 314. 338 crabb's law of real property. becomes only a chace, and trespassers were punishable formerly at common law,((7) but now under the provisions of the 1 & 2 W. 4, c. 32, see Dig. P. iii. tit. Grame. If a forest be parcel of a manor, by the grant of the manor cum pertinentiis, to a subject, the forest does not pa3s.(rj 625. In the time of H. 2, R. 1, and John, many lands adjoining to the king's forests were incroached within the forest, which by Charta de Foresta, made 17 John, and confirmed 9 Hen. 3, were to be disafforested, and after- wards bv perambulations made in the time of Ed. 1, and Ed. 3, were disaffor- ested, and the lands so disafforested are named the purlieu ox pouraUee, that is, the part perambulated. (s) Therefore, the purlieu of a forest is land adjoin- ~i i'^o'^o a forest, *known by meers immovable upon record, which was L J within the forest, but is now disafforested ;(/) and the purlieu is exempt from the forest, for it is infra metas,[u) and the owner may cut down his wood, plough and improve his land, without license, for the purlieu was disafforasted only for the benefit of the owners, and as to others it remains ;(x) so, the owner of the land or wood within a purlieu may hunt with dogs beasts of the forest found in his soil, and he may kill them before they pass the limit '.{if) so, if a dog fasten upon a deer before she gains Jilum forestie, and she drags the dog into the forest and is there killed, the owner may pursue, and take the deer out of the forest ;(y) but a man who has land within a purlieu cannot by gun or engine forestaJ the beasts of the forest in their return to the forest ;(2:) so he cannot kill unseasonable game within the purlieu ;(z) so, not in the fence-month.(z) 626. Anything which will be a nuisance by law, if done out of the forest, will, if done within it, be a nuisance, as to erect a cottage there without a license, although built for the poor;(rt) so, inclosing within the forest ;(o) so, setting up a ferry where there was none before ;(6) so, carry- ing a gun to kill deer ;(c) so, burning heath, &c., within the forest ;(rf) so, building a wall whereby the highwaj- is straightened ;(e) so, if beasts damage the wood of B. within a forest, though B. ought to maintain the fence ; so, erecting a windmill within the forest, though it be upon his own soil ;(y) so, if a man by building, inclosure, or using any liberty or privilege, incroach upon the rights of the forest, it will be purpresture and an offence to the forest ;(o-) so, every offence which tends to the destruction of the forest, or -. the vert or venison of the forest, or is *a breach of the laws of the L -^ forest, Avill be a nuisance to the forest ;(/i) and therefore, noi only the hunting or killing the beasts of the forest which destroys the venison, and waste, purpresture, or apart, which destroys the vert, but any thing which tends to such destruction will be a nuisance to the forest. (i) 627. All wood and underwood in the forest is esteemed vert, and if any cut the vert of the forest within his own land without license, it is waste ;(A:) therefore, a man cannot cut wood in his own land within the forest, or iq) 4 Inst. 314; C'ro. Jac. loo ; Palm. 89, 90. (r) Case of quo Warranto, Palm. 60. (s) Manw. 317 et scq. (0 Manw. 318. («) Id.87. (x) Id. 366. (y) Id. 371. (s) Id. 384. (a) W. Jo. 269. (/>) Id. 274. {c) Id. 275. () Manw. 149. iq) Manw. 155 ; 4 Inst. 306, 307. (r) Manw. 157. (s) W. Jo. 271. 2S9. (0 Manw. 151. 158. 340 crabb's law of real property. although a place be inclosed and proclaimed as a forest, yet it shall be a r*4ft«l *^^^^^ ti'^ ^^^ proper officers and courts are granted ;(i<) but no one L -^ can make a chace within his own land or elsewhere, without the queen's grant ;(a:') the like may be said of an ancient park; and as to the distinction between a chace and a park, see further, Dig. iii. tit. Game. Free warren is also a privilege to have beasts of a warren in one's land, and the exclusive right of killing and hunting them therein. (y) This privi- lege is distinct from the land, and by a lease of the land, without more, the warren will not pass;(z) so, not by an alienation of the land without saying CKm pertinentiis ;{z\ but it has been usual in such cases for the alienor to reserve the privilege to himself,(rt) hence it has come to pass, that a man may have a free warren in another man's land ;(6) so, it is said, "that a man may have a free chace as belonging to his manor in his own wood, as well as a warren or park in his own grounds ; for the chace, warren, or park are collateral inheritances, and not issuing out of the soil, as the common doth, and therefore if a man hath a chace in other men's grounds, and after purchase the grounds, the chace remaineth ;"(c) so, a free warren may be claimed within a cliace of the queen,(rf) and the grantee may there build a lodge upon his own inheritance ;(e) so, it may be claimed in a royal forest, (/) but it must have been allowed in the Eyre before the abolition of that court, (^) see Dig. p. i. tit. Land Revenue of the Crown ; and it may be claimed by grant or prescription ;(/t) but if prescribed for it must be in the ancient place, (t) and a prescription is not lost by non-user ;)i) but a man cannot prescribe for a warren in the lands of a stranger which are not within his seigniory ;{] ) so, none can make a warren in his ^ -] *own land without a license from the Crown, because he cannot L appropriate to himselfyer«s ncUuras, which are nuUiiis in bonis ;{k) and if the queen grants to B. a warren within his manor, he shall have it only in the demesnes, not in the lands of the freeholders. (/) A free fishery, like a free warren, is a privilege under a grant from the Crown, to have the exclusive right of taking and killing of fish in an arm of the sea, or a navigable river, Carter v. Murcot ;(?n) but, in this case it was held, that if any one would claim such privilege, he ought to shew a right, the presumption being against him.(n) II. 2ro be a Count » ^Dalatfue, § 630. The highest franchise was to be a county palatine, which was so called because the count palatine had Jura regalia within his county as the (m) Manw. 60. (x) Id. 56; 2 Inst. 199. (t/) 2 Roll. Abr. 812. (?) Dy. 30, in ninr:r. («) 2 Roll. Abr. 812. (//) 2 Comni. 39, citing Bro. Abr. tit. Warren, 3. (c) 4 Inst. 318. ill) Id. 498. (f) Id. 298. ( /■) Manw. 81 ; Cro. Jac. 155. ("■; Harrison's case, W. Jo. 280. (A) 2 Roll. Abr. 812. («•) Cro. Jac. 155. (j ) 2 Roll. Abr. 265. (A) 2 Inst. 199. (/) Burrough v. Taylor, Cro. El. 463. (m) 4 Burr. 2164. (n) lb. Sec also the River Banu's case," Dav. 55. FRANCHISES. 341 king- himself,(o) and the county Avas made palatine « palalio regis, not the person a count palatine ; and the authority of him who had a county pala- tine was as full as that of the king himself, within his county ,(;?) and con- sisted of a royal seigniory and a royal jurisdiction. (5-) There were formerly four such counties palatine, namel}^ Lancaster, Chester, Durham, and Ely, but the separate jurisdiction in all of them is either abolished altogether, or made to be subordinate to that of the courts at Westminster. See Dig-. P. i. tit. Lancaster, Chester, Durham, and Ely. *III. STo Ja'oe a ptanor. [*490] § 631, iVranorial Rio-hts. Court-baron. Suitors to the Court. 632. Jurisdiction of a Court-baron. 633. Wliere and when the Court is to be kept. Metliod of holding Courts. § 633. Charge to the Inquest. 634. Attachment. Execution. 635. Customary Court. 636. Other Franchises annexed to Manors. § 63L A manor, as before shewn, (see ante, § 88), is a certain circuit or district originally assigned to great men, to which certain manorial rights or privileges were annexed. One of the most important rights belonging to this franchise is that of holding courts, namely, a court-baron and a cus- tomary court. To every manor a court-baron is incident,(?-) and therefore in a quo icar- ranto for holding a court-baron, it is sufficient to plead that he has a manor ;(«) and if he pleads that he has a manor, he ought not to prescribe for holding a court-baron ;(^) so, if he grants a manor, the court-baron passes as incident, although there is an exception of all courts, unless in the case of the queen ;(?/) but the profits of courts may be excepted;(a7) and being incident to a manor of common right, it is not lost, merely because no court has time out of mind been holden within the manor.(y) Freehold tenants alone are suitors to the court-baron, and of these there must be two at least ;(z) and in Glover v. Lane,(o) it is said, " To constitute a manor, it is necessary *not only that there should be two free- ^^ .„. , holders within the manor, but also two freeholders holding of the L -' manor subject to escheats. "(6) (0) 4 Inst. 204 ; Dav. 60. (p) 4 Inst. 205. (7) Dav. 63, (r) 8 H. 7; 1 Kitch. 7, 8 ; 1 Inst. 58 ; 2 Inst. 99 ; 4 Inst. 268. (s) R. V. Stanton, Cro. Jac. 260. See also 1 Bulstr. 51; R. v, Staverton, Yelv. 190 ; Noy, 20 ; Moor, 870 ; 1 Bl. 580. {t) Noy, 20. («) Brown v. Goldsmith, 8 J. B, Moore, 870. {x) Sir Robert Acton's case, Dy.288. {y) Ow. 35. See also R. v. Havering-atte-Bower, 5 B. & A. 691 ;» R. v. Hastings (Mayor, &,c.,) Id. 692, n. (z) Bro. tit. Court-baron, pi. 23 ; Kitch. 7, S ; R. v. Staverton, sup.; Tonikin v. Crocker, 2 Ld. Raym. 864 ; 1 Walk. Cop. 9 ; 2 Scriv. Cop. 720, (a) 3 T. R. 447. {b) Per Lord Kcnyon, Glover v. Lane, 3 T. R. 447. See also Chetwode v. Crew, WiUes, 614. »Eng. Com. Law Reps. vii. 234. 342 crabb's law of real property. The suitors are the judges of the court, not the steward, (c) unless there be a custom or prescription that pleas should be holden before the steward, which it seems there maybe;(f/) although in some earlier cases this was denied. (e) The steward, is however, a constituent part of the court, and not merely a ministerial officer, as was formerly supposed. (y) 632. Courts baron were ordained for three purposes, namely, to adjust differences between lord and lord, between lord and tenant, and between tenant and tenant ;(g') and it is said also as against strangers coming with- in the manor. (/*) A court-baron may hold plea of actions personal when the debt or damage is under 40s. ;(?') so, in trespass without vi et annls, under 40s. ;(^•) but by charter or prescription, it may hold pleas above 40s. (/) But account does not lie in a court-baron ;(m) so, not regularly trespass ^ -, vi et armis :()i^ so, not detinue of *writings ;(o^ sed secus as to de- L '^-^ tinue of goods ;(p) so not replevin. (p) A court-baron, it seems, may also hold pleas of land, to the exclusion of all other jurisdictions, except by a remisit curiam from the \oxA;{q) and this was by a writ of right patent before its abolition by the 3 & 4 W. 4, c. 27. Such a plea may be removed by writ of toll into the county court, and from thence into the Court of Common Pleas. (r) A court by prescription may also have jurisdiction, as a peculiar, to grant probate and administration, and also to take cognizance of testamentary causes, (s) If an action be sued in a court-baron, in which it has no jurisdiction, pro- hibition lies \{t) so, if the defendant pleads that the cause did not arise within the jurisdiction ;(/) so, if it has no jurisdiction, the proceeding there is void, and trespass lies.(f) 633. A court-baron may be held at any place within the manor, otherwise it will be void ;(?<) but by custom the lord may hold a court within one manor for several manors ;(i') so, a surrender maybe made out of court {c') 39 H. r>. .5, cited Bro. tit. Judg-mcnt, pi. 118 ; Kitch. 145. See also Jentleman's case, 6 Co. 11 b ; Lord Cohliain and Browne's case, 1 Leon. 217 ; Lovell and Galston's case, Godb. 68 ; Eurc v. Wells, T. Jo. 23 ; R. v. Morgan, 1 Bl. 398. (rf) 1 Leon. 316, pi. 444; Tonkin or Tomkin v. Crocker, 2 Ld. Raym. 860; S. C, 2 Salk. 604 ; S. C, 2 Liitw. 12J 1 ; R. v. Morgan, 1 Bl. 398. See also Rast. Ent. 5.';3 ; Co. Ent. 118; Winch's Ent. 1014; James v. Tutney, Cro. Car. 497; Eure v. Wells, T. Jo. 23. (e) Pell V. Towers, 2 Cro. El. 791; S. C. nom. Pell v. Towers, Noy, 20; Armyn v. Appletoft, C"ro. Jac. 582. See also 2 D'Anvcrs, 295, tit. Court-baron ; 1 Ncls. Abr. 50. ( Howard v. Wood, 1 Freem. 473 ; S C, T. Jo. 126 ; S. C, 2 Lev. 245. See contra, Calth. 54 ; Holroyd v. Breare, 2 B. &, A. 473. And see further 2 Scriv. Cop. 722, 3rd cd. {g) Scrog. Pract., pp. 82 et seq. (A) Br. Court-baron, pi. 1; Kitch. 146. (i) Kitch. 74 ; Pell v. Towers, sup. {k) Kitch. 146. (0 Id. 187. See also R. v. Havering-atte-Bower (Steward, &c.), 5 B. ) Kitch. 89, citing 45 E. .3. 2G; 6 H. 4. 1. {q) Loader v. Samwcll, Cro. Jac. 551. (r) Loader v. Sarawell, Cro. Jac. 551. (s) Cock V. Stubbs, Cro. Jac. 583. (0 Moore v. Wickers. Andr. 47. (m) Davidson v. Moscrop, 2 East, 56. (r) Rits. on Courts Leet, 9 ; also, Vaugban v. Atwood, 1 Mod. 202 ; Palmer v. Barfoot, 1 Lulw. 440; Wicker v. Norris, cited in Bedford (Duke) v. Alcock, 1 Wils. 248. (x) Dakin's case, 2 Saund. 290 ; S. C. nom. Dacon's case, 1 Vent. 107. (//) 3 Keb. 251. (2) R. v. Gilbert, 1 Salk. 200 ; S. C, 12 Mod. 4. (a) Lawson v. Hare, 2 Leon. 74. (6) Jentleman's case, 6 Co. 12; 4 Inst. 261. Sec also Witliers v.Isenam, Dy. 70, (c) R. V. Jennings, 11 Mod. 215. () R. v. Darby shire, 2 Burr. 1182. (c) Poordage's case, sup. ; R. v. Wright, 1 Keb. 439. (d) Cro. Car. 389. (c) 1 Sid. 355, ''Eng. Com. Law Reps, x, 458. December, 1846. — 23 350 CR abb's law of real property. several houses, that every one shall be "constable in turn, vvas held good ; " For though it shall happen to be the turn of a widow, she may have one to serve, and then he who serves is sworn, and he is a constable and not a deputy;" see also R. v. Stubbs.(/) ^_„ .-, A person appointed constable cannot appoint a deputy *without L -^ the sanction or consent of some other authority. (^) 651. A fine may be imposed by the steward upon any officer of the leet for neglect of his duty, as if a bailiff' refuse to make return of the panel, (A) or a juror to be sw^orn ;(z) so, for a contempt in view of the court, as putting on his hat in court, (A-) or saying to the steward "You lie ;"(/] sed secus as to words not importing contempt ;(m) but the fine must be reasonable ;(n) and therefore, if a fine in a court-leet be unreasonable, it may be avoided by plea and judgment of the court, for the judges are to deter- mine the reasonableness of a fine.(«) But for a thing not in his view, the steward cannot fine, as for not doing suit,(o) or where a constable is not present at the time of his election. (jo) 652. For an offence in the leet, not done in the presence of the steward or in contempt of the court, a man may be amerced, for an amercement is properly the act of the jury, and a fine the act of the court, (5-) for those only who have conusance of a thing may impose a fine or amercement for the same thing ; therefore, where an offence is presented by a jur}', the punish- ment is by amercement, not fine, though it be a contempt ;(r) but there shall not be an amercement in the leet for a trespass done to the lord himself, for _^_„_-, he shall not be judge in his own cause ;(s) so, not *for non-pay- L -J ment of rent to him, for which he may distrain ;(/) so, there can be no amercement in a leet for an encroachment on the rights of a lord of a manor ;(?<) so, not for an inclosure of the waste, and erecting a cottage thereon ;(?/) so, not for any particular damage to the lord.(w) 653. An amercement ought to be imposed with mercj% and therefore it is called misericordia,{v\ and shall be proportioned according to the offence to the lord, and not the damage to the tenant ;(a.-) so, when fixed by the jury, it must be aff^eered and moderated by others ;(y) and the jury ought to assess it at a sum certain, (?/) and the afl^eerment ought to be by persons chosen by (/) 2 T. R. 406. (g) R. V. Adiard, 4 B. & C. 778.' Sec also Vane's case, 1 Sid. 355. (/O 8 Co. 38 ; Roll. Abr. 218. (i) Id. 219. (k) Bathurst v. Cox, T. Raym. 68. (/) Lincoln (Earl) v. Fisher, Cro. El. 581 ; S.C., Ow. 113 ; S. C, Moor, 470. (?«) Berrington v. Brooks, T..T0. 229. {n) Griesley's case, 8 Co. 38. ' (0) Hall V. I'urbeft, Cro. El. 241. See also Lukin v. Eve, Moor, 88, 89. (p) Fletcher v. Ingranr, 1 Salk. 175 ; S. C, 5 Mod. 130 ; S. C, 1 Ld. Raym. 70 ; S. C, Skinn. 635. iq) Palm. 7. See also 7 H. 6. 12, cited Bro. Leet, 12 ; Id., Fine pur Contempts, 44 ; Id., Amercements ; Godfrey's case, 11 Co. 43 ; Griesley's case, 8 Co. 41. (r) Moore v. Wickers, Andr. 47. (s) 1 Roll. Abr. 211, citing 12 H. 4. 8. b. {t) Ibid. (u) R. V. Dickenson, 1 Saund. 135. (») 1 Inst. 126. (X) F. N. B. 75, E. lyj Wilton v. Hardingham, Hob. 129 ; Evelin v. Davies, 3 Lev. 206. «Eng. Com. Law Repp. x. 458. FRANCHISES. 351 the steward and sworn for that purpose ;(z^ but the afTeerors may be, and usually are chosen from the jury,(«) and the affeerment must be made at the same court ;(i) but the reasonableness of an amercement, once affeered, cannot be questioned in a writ of error. (c) 654. A fine imposed by the steward is recoverable in an action of debt ;((/) it may also be recovered by distress, (e) even without a custom, a distress being incident to a court-leet 'of common right, Pierson v. Rid- ley, (/) and in this case it is said, that though of common right a distress may be taken for a fine in a court-leet, that is, where it is imposed for such things as are of common right incident to its jurisdiction, as for contempts or the like, yet when custom onlj^ enables them to set a fine, it cannot be distrained for without *a custom also; so where it is for a private r^,-nfil advantage of the lord, it cannot be distrained for without a prescrip- L -^ tion.(o-) 655. An amercement is recoverable either by distress or action. If an amercement be affeered, the lord may distrain for it of common right, with- out prescription, (/<) and the distress may be taken in any place within the precinct of the leet,(?) even in the common street ;(A-) but a distress cannot be taken for an amercement in a place out of the jurisdiction, and therefore it is necessary to plead the bounds of the leet with certainty ;(A so, it may not be upon the goods of astranger,(m) though they be upon the land of the offender ;(?n) so, the bailiff' cannot distrain ex officio, but he must have a special warrant from the steward ;(n) and if a bailiff" justifies in trespass, he ought to show the precept ;(o) but in replevin this is not necessar)^(o) So, debt lies for an amercement affi?ered,(/j) and debt on an amercement may be joined with a debt on a mutuatur ;() Scrog-g. 1.50 ; Cutler v. Creswick, 3 Keb. 363. (c) Stubbs V. Flower, 1 Bulst. 125 ; Cronipton on Courts, 225. (rf) Griesley's case, 8 Co. 38. {e) Swan v. Mora^an, Lex Man. 80. App. Keilw. 66 b. (/) 2 Keb. 701, 739, 745; S. C. nom. Pierson v. Ridge, 204; S. C, 1 Vent. 105. (5") Godfrey's case 11 Co. 45 a. (/t) Prat v. Stearn, Cro. Jac. 382. (i) Bro. Leet, 28, citing 2 H. 4. 24; Kitch. 86, citing 8 R. 2, Avowry, 194. (k) Kitch. 86, citing 19 E. 2, Avowry, 221. (I) Wilton V. Hardingham, Hob. 129 ; George v. Lawley, Skinn.393. (m) Pell V. Towers, Noy, 20. (tj) Steverton v. Scrugs, Cro. El. 698, perPopham; scd contra, per Gawdy. But sec Matthews V. Carey, Carth. 73 ; S. C, 3 Salk. 52 ; S. C, 3 Mod. 138 ; and Lamb v. Mills, 4 Mod. 378 ; Skinn. 587 ; also Robson on Courts Leet, 121. (o) Matthews v. Carey, sup. (p) Prat v. Stearn, Cro. Jac. 382. (9) Bedlbrd (Duke) v. Alcock, 1 Wils .248. (0 Baldwin V. Tudge, 2 Wils. 20. (s) Griesley's case, 8 Co. 40 b ; Cutler v. Creswick, 3 Keb. 362. 352 CRABBS LAW OF REAL PROPERTY. L*507] *V. gTo Ijnbc Wvcct. 656. What is Wreck. 657. Flotsam, Jetsam, Lagan. 658. Prerog-alive as to Wreck. Restitution to tlie Owner. 659. Wreck as a Franchise, 660. Claimed by a Sul)jcct. 661 . Right commonly annexed to Manors. §661. 662, 663. May be prescribed for, ]\Iay be claimed by t'ustom. But a consideration must be shown to support a Custom, Goods derelict. Possession of Wreck. Recovery of Wreck. § 656. Wreck is where goods, after shipwreck, are thrown upon the land, and no man, dog, or other animal escapes alive out of the ship ;(^t\ but if any animal escapes aliv^e, it will not be a wreck, for a dog and cat are put but for examples,(M) and the statute Weslm. 1, c. 4, (3 Ed. 1.) is deem- ed to be only a declaration of the common law.(r)(n So, if a ship be in distress, all desert her, and any one come alive to land, though the ship afterwards perishes, there will be no wreck ;(?/) so, if a ship, being in a tempest, cut its cable, the anchor is not wreck ;(z) so, where a ship at sea was pursued by enemies, and the men for the safeguard of their lives left the ship, and the enemy took the ship and spoiled her of her goods and tackle and turned her into sea, and she was driven ashore by the weather, where the men arrived, it was resolved by all the judges of England that the ship was no wreck nor lost.(a) In order, therefore, to con- stitute wreck, not only must there be no life saved, or vestage remaining by which the property may be identified, but the goods must be cast or left on the land by the sea, (6) and this is the legal signification of the word '*wreck"(c) and the jurisdiction over such property belongs, therefore, not ^ -, *to the admiral, but to the common law ;(cZ) therefore, if the ship L -^ perish, and any of the servants escape, held, that the goods are not wreck, (e) 657. To wreck also belongs what has been technically caWedyiotsam, Jet- scan, and lagan. Flotsam is where goods after shipwreck be floating or swimming upon the lop of the water. (/) Jetsam is anything cast out of the ship being in danger of a wreck, and beaten to the shore by the waves, or cast on it by the mariners. (y*) Lagan is where the goods are cast into the sea, and the ship afterwards perishes, and the goods are so ponderous that ihey sink to the bottom, but the mariners, with intent to get them, fasten to them a buoy or cork, or other such thing as will not sink, so that by such things they may find them again, (A And none of those goods which Vixe cSi\h(\ flotsam, j etsam, ox lagan are called wreck so long as they remain in or upon the sea ; but if any of them are driven to the land by the sea, then they shall be said to be wreck ; it) 2 Inst. 166. Az) 2Roll. Abr. 159. («) Id. 167. (.r) Vaugh. 164. (y) 2 Inst. 167. ('/) 2 Inst. 167, citing Fishlake's case, 5 R. 2. (6) Bract. 1. 3,fol. 120 ; 11 H. 4. IG; Vaugh. 16*^, (c) 2 Inst. 167, {d) F. N. B. 112, C; 2 Inst. 167. (0 5 Ed. 3. 3, (/) Constable's case, 5 Co., 106; Blount, nom. verb. Flotsam. (1) 3 Kent's Com, 322. FRANCHISES. 353 SO that JJotsam, jetsam, and Uigan pass by the grant of wreck ;(/) but this is only when the ship perishes, or the owner of the goods is not known, for goods cast into the sea for fear of tempest are not forfeited, (g-) and so long as goods Jiotsam, &c., are upon the sea, they do not pass to the queen, but to the first finder. (A) 658. By the common law all wrecks belong to the queen, (//) for by her prerogative she has dominion over the sea, and is entitled to all derelict goods of merchants ; and she has a right of way over any man's ground for her wreck. (i) By the statute 3 Ed. 1, c. 4, if any goods be saved, they *must c-^^qq-i be kept by view of the sheriff, coroner, &c., and bailed in the hands L J of those of the town where found ; and if any person proves property with- in a year and a day, they shall be restored to him without delay, if not, they remain to the queen. (^) If the goods are not kept by the sheriff, but taken away by the neighbours, the owner shall have a commission of oyer and ter- miner, to inquire of the trespass and make restitution, (/) The year and day, within which the owner may prove his property, shall be computed from the seizure as wreck ;(/) and if the owner dies, his executor or administrator maj'- prove his property ;(/) so, if the goods are bona peritura, the sheriff may for necessity (which is excepted out of law) sell them within the year.(/) But wreck of the queen's goods will not alter the property in them,(7n) and she is not confined to her proof within a year and a day like a sub- ject, (^i) 659. Wreck may, however, belong to a subject by grant or prescription, or even by mere usage, for it seems that in some cases usage will give a subject a right against the prerogative, (o) and so in the case of wreck,(7;) for it is said that in ancient times wreck of the sea and other casualties belonged to the first finder, although afterwards the right was transferred to the king as the head of the republic. (9) In cases of express grant, it is said, that rights or privileges within a certain precinct shall not be extended, although the precinct itself is after- wards extended, and therefore, where wreck of the sea was granted to a man in all his lalids, this grant should not extend to the land whereof he was then disseised, and into which he afterwards re-entered, because at the time of the grant he had only a right in the land, and the grant at the time of the making of it could *not extend to the land which was then p*KjQ-| not his own, but another's, viz. the disseisor's ;(r) so, it has been L J held, that if any liberty was resumed by Act of Parliament which a corpo- ration had, and the lands came to the king who granted over the land with tot talia, &c., as the corporation had, the resumed liberty would not pass, unless there were special words of grant de novo;(^s^ sed secus where the (/) Constable's case, 5 Co. 106 ; Blount, nom. verb. Flotsam. la) 46 Ed. 3. 15. {h) Constable's case, 5 Co. 108. li) Vaugh. 164 ; 6 Mod. 149. (fr) Vaugh. 164. (/)2Inst. 16S. (w) Plowd. 243. (n) 2 Rro. Wreakc de Me.irc, citing 3.5 H. 6, 27 ; 2 Inst. 168. (0) Case of Mines, Plowd. 322. (p) Hiilc, De Jure Maris, i). 41. (7) 2 Inst. 163, citing Bractou, 1. 3, fo. 120. (r) Plowd. 130. («) W. Jo, 349. 354 crabb'slaw of real property. liberty was appendant to a manor originally in the hands of an abbot ;(s) and a grant of Duchy lands is subject to the same incidents as a grant of lands belonging to the Crown. (A 660. It seems that the Lord High Admiral may have wreck by prescrip- tion, " for the Lord High Admiral's office(z<) is an ancient office :" but it cannot be claimed as appurtenant to his office ; therefore, when a manor, to which wreck belonged by prescription, came to the king's hands, who granted to A. "the office of Admiral, with all wrecks at sea and all profits to the said office belonging," and after this granted the manor to B., under Avhom the plaintiff claimed, it was held that those words did not pass the wreck belonging to the manor by prescription. (a:-) 66L This franchise is most usually annexed to manors, and may also be parcel of or belong to a hundred ;(?/) and a right to wreck of the sea infra iuanerium is a strong presumption that the shores are parcel of the manor ',{z) so, one may prescribe to have Avreck between high and low Avater mark, and it is said, that those of the west country prescribe to have wreck in the sea so far as they may see an Humber barrel ;(o) so, one may prescribe to have Jlofsam and^e^sam. City of Bristol and Lord Berkeley, (6) and in this case, where the Lord Berkeley had a manor adjoining to the -, Severn, *where he prescribed to have wreck, and certain goods L J floated between high and low water mark, and the City of Bristol had Jlotsum there, it was held, that the said goods were not wreck so long as they floated in that manner. (c) Although usage, as before observed, (see ante, § 659,) may give a subject a right to wreck, yet, in that case, the custom must be founded upon some consideration, or it will be void ; therefore, where the plea in trover was the custom that, if a ship perished, the lord should have the best anchor and cable, it was held bad, for that the custom was without consideration and void ;(rf) but, in a similar action for taking an anchor and cable by virtue of a similar custom, where the defendant (the lord of the manor of Burling) shewed that the lord of that manor had been used, when any Avreck happened upon the manor between high and low water mark, to take care of the sick and wounded, and to bury the dead, and to pjjeserve the goods cast there, for the use of the proprietor, and in consideration thereof, to have the ship's best anchor and cable, this was held to be a good consideration, and the custom not unreasonable. (e) 662. Goods which are considered wreck, by being cast upon the land, are called derelict, that is, deserted by the owners, and this happens upon many occasions, as, where they come from infected towns and places, and (s) W. Jo. 349. (0 Alcock v. Cooke, 5 Bing. 340,» (m) Per Holt, C. J., 12 Mod. 2G0. (z) Wiggan V. Branthwaitc, 12 Mod. 259 ; S. C, Holt, 758; S. C. 1 Ld. Raym.473. (;/) Hale, De Jure Maris, 42. (t) Id. 27. {a) Constable's case, 5 Co. 108. {b) Cited in Constable's case, sup. (cj City of Bristol and Lord Berkeley, eited in Constable's case, 5 Co. 106. (*/) Gccre v. Burkensham, 3 Lev. 8:^ ; S. C, 2 Danv. 429, pi. 9. (e) Simpson v. Bithwood, 3 Lev. 307. »Eng. Com. Law Reps. xv. 462. FRANCHISES. 355 though never purposed for merchandize, they will be wreck when they come on shore ;(/) so, boats or other vessels forsaken, or found on the sea without any person in them, are also said to be derelict ;(»•) so, again, goods never intended for merchandize, which are thrown overboard to lighten a ship in a storm, are wreck if cast on shore, although there be no subsequent shipwreck ;(/i) but goods, as it seems, (though *intended for traffic,) f-^.-ioT which are cast overboard to lighten the ship, are not considered as L -^ derelict, (f) aed queer e ; and a question also arose at that time, whether dere- lict goods were liable to customs' duty.(y) This point was first raised in Saunders's case,(/) and it seemed to be then considered, that as the king was not chargeable with customs, so his grantee, who was to enjoy the privilege in like manner with himself, ought not to be liable, and in Shep- pard V. Gosnold,(A;) it was decided that wrecked goods were not liable, and this decision was confirmed in a subsequent case, Courtney v. Bower, (/) although in a previous case. Power v. Porlman,(??i) it was held, that goods wrecked or Jlofs am, should pay customs, and now, by Act of Parliament, derelict goods are made liable ; see the Customs' Act, 3 & 4 W. 4, c. 56, Dig. P. i. tit. Flotsam. 663. Possession of the wreck is in him that has the right, and Fitzherbert lays it down, that if a man have wreck by prescription or grant, and goods be wrecked on his land, he may have an action of trespass against any one for taking them away.(?i) When wreck is to be recovered, the jurisdiction is not in the admiral, but in the courts of common law,(o) but the Court of Admiralty shall have cog- nizance oi flotsam, jetsam, and lagan, because the latter are on the sea ; therefore, in a case between the Lord High Admiral and Sir Henry Con- stable, part of the goods claimed and taken on behalf of the admiral passed by the name of wreck, and part being flotsam did not pass, and entire damages were assessed, judgment was consequently given against the plain- tifl''.(;j) As to the plundering of wrecks, see Dig. P. i. tit. Larceny ; and as to salvage, see Dig. P. i. tit. Wreck. *VI. STo i)abc STvcJtsurc trolic antr 25stv.ii>5. [*513] § 664. What is Treasure trove. 665. What is an Estray. Wliat is not Estray. 666. Who shall liave the Estray. Retaking of Estray. 667. Riglit of Lessee. Ritrht of Wife. Rig^ht of Infants. Right of Tenant in Common. § 667. Rigiit of Executor. 668. Claimincr Estray by Owner, 669. How an Estray may be used. 670. Nature of the Lord's Right in an Estray. 671. Swan an Estray. Swan Marks. Swans claimed by Prescription. C/") Sheppard v. Gosnold, Vaugh. 168. {g) \ Rob. Rep. 41. (A) Sheppard v. Gosnold, sup. (i) Sheppard v. Gosnold, Vauo-h. 168. ij) Moor. 224. (A) Vaugh. 1.5;». (Z) Ld. Raym. 5U1. (m) Molloy, c. 8, s. 9. («) F. N. B. 91, D. {„) 2 Inst. 168. (/)) Constable's case, 5 Co. 106. See also Bourne's case, Palm. 96; Le Seigneur (.Admiral) v. Linsted, 1 Sid. 178 ; S. C. nom. Duke of York v. Linstred, 1 Keb. 6J7. 356 crabb's law of real property. § 664. According to ancient authors, treasure trove originally belonged to the finder,(5') but by the law of England from a very early period has belonged to the king as his prerogative, or to some lord of a manor or liberty by special grant or prescription. (r) Nothing is said to be treasure trove but gold and silver,(.s) but it may be either bullion, coin, or plate. (s) It is im- material whether it be found hidden in the ground, or in the ruins of any house or other building, or elsewhere ;(s) but treasure found in the sea still belongs to the finder. (<) Treasure trove, as well as wreck, shall be inquired of by the coroner, (t() and the concealment of it is punishable by fine and imprisonment. (f) 665. An estray, animal vagans, is properly any beast, not being wild, which is found wandering within some lordship or manor,(«') but the terra is applied also to swans or cygnets, (,r) (see post, § 671,) although not to any other bird.(?/) n *When no one can make title to estrays, the law gives them to L J the queen, or to lords of manors claiming under a grant from the Crown ;(2;) but a man cannot have estrays in gross by prescription, because they lie in grant, and will not originally pass without charter. (a) If no claim be made within a year and a day, the estray belongs to the lord, but he has not an absolute property in it until the year and day are passed ;(6) so, it will not be an estray by the common law, although it continues for a year and a day, if it be not proclaimed within a reasonable time,(c) and pro- perly, at the next market day of the nearest market town,(rf) or, according to others, in the two nearest market towns, &c. ;(e) and the year and day are to be computed from the seizure. (o-) So, if the lord or his bailiff do not seize it as an estray, it shall not be so, for that begins the property,(/j) except in the case of the queen ;(z) so, cattle which come for common cannot be estray ;(A;) so, not the queen's cattle which come into the manor of another.(/i) 666. If cattle stray into the manor of A., and within the year stray to the manor of B., and continue there for a year and a day, and are proclaimed, B., shall have them as estrays ;(/f) so, if the first manor was the queen's manor ;(A') so, if a stranger Avithin the year takes the cattle, and puts them into the manor again as his own, and the}^ continue there hi a year and a ^ -, day, they will be an estray, (^) sed secus "^if the lord put them into a L -^ place out of the manor ;(??i) and it is said that the lord cannot retak'e (q) Glanv. dc Leg., c. 1 ; Bract., 1. 3, fol. 120. (r) Staundf. P. C. 39, b. ; 1 Inst. 114, b. ; 3 Inst. 1.32. (s) 3 Inst. 132. (i) Kitch. 78; 2 Inst. 168. (u) 3 Inst. 133. (v) Kitch. 49. (w) Filzh. Abr. Estray, pi. 3. {x) 7 H. 6, 27, 28 ; Fitzli. Bar., pi. 6 ; Bro. Double Pice, 41 ; Kitch. 79. (y) 4 Inst. 280. (z) Taylor v. James, Godb, 150; Engleftld's case, W. Jo. 285; Hazlcwood's case, Ow. 14. ('/) Tattersall's case, W. Jo. 283. (6) Br. Estray, pi. 11, citinof 33 H. 8 ; Kitch. 79 ; Finch's Law, 45. (c) Plcadal v. Gosmorc, Winch, 68 ; S. C. nom. PIcydcll v. Gosmorc, Hutt. 67. {d) Henley v. Welsli, Holt, 564 ; S. C, 2 Salk. 686. (p) Br. Estray, pi. 10 ; Kitch. 79 ; Finch's Law, 45; Brownlow v. Lambert, Cro. El. 716. (?) Henley v. Welsh, sap. (/() Hutt 67 ; see also Palm. 486. (0 Dy. 386, pi. 40. ik) 1 Roll. Abr. 878. (/) Id. 879. ('«) Palm. 486. FRANCHISES. 357 it if it strays into another's land before the year expires, for no property is vested in him until after the year and a day ;(n) but it has been otherwise decided, (o) and it has been said, that he may retake it if the other does not seize it as anestray.(;;) 667. So, if A. leases his manor, in which an estray was, before the year expired, the lessee, after the expiration of the year and day, shall have it, and not the lessor, for he had the custody only during the year, and the property vests in him who has the custody at the end of the year and day.(«/) If an estray happen within the manor of the wife, and the husband die before seizure, the wife shall have it, for that the property was not in the wife before seizure. (r) So, the property of infants and others under disabilities is equally bound, after the year and day, as well in the case of estrays as of wreck. (s) If two tenants in common be of a manor to which estrays belong, no action will lie by the one against the other who should alone seize the estray, unless by prescription the one is to have the first estra}^ and the other the second, and one of them should lake the beast pertaining to the other. (t) If the lord dies before the year expires, and afterwards the estray con- tinues in the manor for a year and a day, yet the executor of the lord shall have it, and not the heir, for when the year is expired, the property relates to the seizure, (m) 668. The owner of an estray may claim it at any time after the year and day if proclamation be not made ;(.t) and ^without telling any r-^^^Qi marks, or making any proof of property, (which may be done on L J the trial,) the owner may, within the year, seize his animal where he finds him on tendering satisfaction ; (3/) and, in pleading tender, he need not, as in the case of a trespass, show a sum certain, because he is not a Avrong- doer;(?/) but, if the owner does not tender reasonable amends for his pas- ture, the lord may detain it. (3/) 669. If the lord uses cattle taken as an estray, by riding or working them, &c., he will be a trespasser ab iniiio }[z^ so, a custom alleged, to put cattle taken as an estray into a moor, part of the manor, and there fetter them if they are unruly, is not good ;(a) but using an estray for necessity is justifiable, as, if a cow be taken it may be milked ;(Z/) so, a sheep taken as an estray may be sheared ;(c) so, fetters may be put on a colt which cannot otherwise be prevented from breaking fences ;(<:/) so, an estray should be kept in loco aperto, on land in the lord's possession, being part of the (n) Bro. Estray, 11. (0) 12 Co. 102. ip) Pleydell v. Gosmore, Hutf. 67. (9) 12 Co. 102. (/•; 1 Inst. 351, b., citing 43 Ed. 3, 8 ; 10 H. 6, 11. (s) Constable's case, 5 Co. 108. (0 1 Inst. 200. Ill) Moor, 11, pi. 43. (x) Taylor v. James, Godb. 150. (y) Henley v. Welsh, 2 Silk. 685. (z) Bagshawc v. Gowaid, Cro. Jac. 147 ; S. C. riom. Bagshaw v. Gawin, Noy, 119 ; S. C, Yelv. 96. (a) 1 Roll. Abr. 879 ; Pleydell v. Gosmore, Tliitt. 67 ; S. C, Winch, 08. {b) Bagshawe v. Goward, sup. (c) Id., Noy, 119, citing Pridcux's case. () but a man does not forfeit his goods by flight, if he is not indicted in his lifetime,(;)) nor if the flight be found before a coroner who has no jurisdiction, (7;) The goods of fugitives can only be claimed by the Crown, or by grant from the Crown ;(«7) but not by prescription, for they are not forfeited till found upon record that the party fled for the felony,(5') see further infra § 676. («/) Staundf. P. C. 186. (V) Foxley's case, 5 Co. 109 ; S. C. nom. Foxlcy v. Annesley, Cro. El. 693 ; S. C, Moor, 572. (/) Staundf. P. C. 186. (V) 5 Co. Ill ; 3 Inst. 242. (/() Br. Estrav, pi. 2, citing 44 E. 3. 19. 0) Davics' case, Cro. El. 611. (/f) Rooke V. benny, 2 Leon. 192. (/) Br. Issues joincs, ])1. 68, citing- 12 E. 4, 5. Cm) F. N. B. 91, B; Kitcli. 80; Scroggs, 132. (n) Foxley's case, 5 Co. 109 b. (0) Staundf. P. C. 183 b ; Foster, 272, ip) Staundf. P. C. 184 a. (3) Foxley's case, 5 Co. 109 b, 110. FRANCHISES. 36t 676. Bonafclomtm are the goods of any one convicted of felonj', for he forfeits to the queen all his goods and chattels which he had at the time of the conviction ;(r) so, if a man hefelo de sc, he forfeits all the g^ods which he had at his death, if he is found felo de se by inquest before the coroner, or by presentment before justices, who have conusance of felony. (r) The goods of felons, as of fugitives, can be claimed only by the Crown or by a grant from the Crown, (r) and not bj' prescription, see ante, § 675. By such grant, the grantee, it is said, shall have the debts and special- p^-ooT ties, &c., as well as *other goods, though there are no special L -^ words ;(s) so, a grant of bona et calallafelonum will not pass the goods and chattels of a felo de se.{s'^ If a man be found felo de se by the coroner's inquisition, the jury ought also to find whether he had any goods and chattels at the time he committed the felony, or not ; and if he had any, to specify the same in an inventory annexed to the inquisition ;(f) but by 7 & G. 4, c. 28, s. 5, it is provided that where any person is indicted for treason or felony, the jury impannelled to try such person shall not be charged to inquire concerning his lands, tene- ments, or goods, nor whether he fled for such treason or felony. VIII. Eo tabc JDcolsan'&s'. § 677. Definition of a Deodand. VVJien Tilings are Deodand or other- wise. Things movable. Coach. § 677. Ship. Not Things fixed to the Freehold. 678. How forfeited. How appropriated. § 677. Deodands are defined to be omnia qnse movent ad mortem ;{t() and therefore every beast, or movable thing inanimate, which occasions the death of a man within the body of a county, without the default of the per- son himself or another, shall be forfeited to the Crown as a deodand, though the thing was not in motion at the time, if it be movable •,{x) and as well Avhere the man by misadventure falls upon the thing, as where the thing falls upon him ;(.t) and therefore if the sword of B. is used by A., and ano- ther *is killed with it, it will be a deodand \[y) and formerly, not p*g23l only the thing that was the immediate cause of death, but all things L ^ -^ moving with it were held to be deodands ; therefore, if a man riding upon a carriage fell from it, and the horses drew the carriage upon him by which he died, the horses and carriage were a deodand ;(z) but in this day, if a man is killed by the wheel of a coach going over him, the wheel only is the deodand, as being the immediate cause of the death ;(a) and a thing which (r) Id. 110. (s) 2 Roll. Abr. 195; sed contrJi, Lord Northampton v. Lord St. Jolm, 2 Leon. 56 ; .lurado v. Grcgorj-, 1 Vent. 32; R. v. Sutton, 1 Saund. 27.3; S. C, 1 Sid. 420; S. C, 2 Keb. 526. (0 1 Wins. Saund. 272. (M) Dv. 77 b ; Foxlcy's case, 5 Co. 110. (x) Staundf. P. C. 20. («) 3 Inst. 57. (?) Staundf. P. C. 20 ; Case of the Lord of the Manor of HanipFtoad, 1 Salk. 220. (a) R. V. Grew, Say. 249 ; R. v. Rolfe, lost. Cr. Law, 266. 363 crabb's law of real property. does not move with that which causes the death was formerly held not to be a deodand, though it was joined to it ; as if a man falls from the wheel of a carriage and is killed, but the carriage does not move, the wheel only should be forfeited ;(6) so, if a man riding through a river was thrown by the violence of the stream and drowned, then the horse or carriage was not considered as having moved to the death, and should not therefore be forfeit- ed. (c) A vessel or boat in aqua dulci may become a deodand, but not in aqua salsa ;[d) therefore, where a ship lying at Redriff, in Kent, turned over at low water and killed a shipwright at work under her, it was held to be a deodand ;(e) but where a man is killed by a fall from a ship into fresh water, the ship, but not the merchandize therein, will be deodand ;(/) so, formerly, a distinction was taken between persons within the age of discretion and those who were not,(g-) but this distinction is not observed now.(^) ^ Nothing fixed to the freehold shall be a deodand, as a *door or L J gate of a house,(i) or a bell in a church \[k) but if the thing is pre- viously severed from the freehold it may be a deodand, as where a man was killed by the sail of a wind-mill which by the violence of the wind had been severed from the mill.(/) 678. A deodand shall be forfeited to the queen, or to him who claims by patent,(m) but no man can prescribe for it, it must be by the grant of the Crown ;(n) and by inquisition before the coroner it must be found that it is deodand, and the value set.(o) But deodands do not meet with countenance in Westminster Hall ; when a jury has found too little, the courts will not interpose in favour of the Crown or of the lord of the franchise, though they will, if it has found too much, in favour of the subject.(;o) By the 4 & 5 W. & M. c. 22, lords of manors and others having grants of deodands must have the same inroUed in the Crown Office. Formerly, deodands forfeited to the Crown were disposed of in eleemosy' nam, to some charitable purpose by the king's almoner,(7) but they are now appropriated as part of the casual revenues of the Crown. (r) (/)) Staundf. P. C. 20. (c) Lord Cliandos's case, Cro. Jac. 483 ; S. C, Poph. 136 ; S. C, nom. R. v. Ld. Caven- dish, 2 Roll. Rep. 23 ; S. C, cited 1 Salk. 220. {d) Biact. 1. 3, c. 5, fol. 122 ; 3 Inst. 57 ; 2 Hale, P. C. 422 et seq.; Hawk. P. C, c. 26. (p) 2 Molloy, 225, c. 1, s. 13. {f) Hawk. P. C. c. 26, s. 6. (o-) 3 Inst. 57. (A) Hawk. P. C. c. 26. (i) 1 Sid. 207, {k) Axminster Parish case, 1 Lev. 136; S. C, 1 Sid. 207; S. C, Ld. Raym, 97; see also R. V. Wheeler, 6 Mod. 187. (Z) 1 Sid. 207. (»n) Dy. 77 a, 107 h. (71) Foster's Cr. Law, 266. (o) Staundf. P. C. 2] a. ( p] Foster's Cr. Law, 266. iq) 3 Insl. 57. (r) Foster's Cr. Law, 265, 266 ; Molloy, 225 ; Lex. Man. 72. FRANCHISES. 363 *IX. Eo Ijabe a ifttarftet ov J?afr. [*595] 680. 681. 682. § 6T9. Wlial is a Market and a Fair. Claimed by Prescription or Grant. Place of holdin »Eng. Com. Law Reps, xiv. 13. FRANC U I S E S, -374 objected to by the grantees, was held to be sufficient evidence of such inimetnonal right. (^) 693. Bat the grantee of a market is bound to provide reasonable accomo- dation for those who attend the market ; therefore, where part of the space granted for a market was used for other purposes than those specified in the grant, and the remaining part became insufficient for public accommodation, held, that the lord of the market could not maintain an action against an individual for selling vegetables in the neighbourhood of his market, and thereby depriving him of toll, even at the time when there was room in the market, without showing that on the day when the sale took place he gave notice to the seller that there Avas room within the market ;(^^) and it is a question for the *jury whether the accommodation be sufficient or not, ^_„„-| and where the jury decided that the accommodation was sufficient, L -" the Court refused to disturb the verdict. (a:) 69 i. As tolls are only due by grant or prescription, and cannot be estab- lished by usage under a recent charter or by reference to neighbouring markets, (y) it seems doubtful whether, if no specific toll be granted in let- tors-patent, the grantee of a market be entitled to any toll, and whether, in such a case, he can support an action for an injury to his market. (z) As a grant of a fair or market may be made either to lords of manors or to boroughs and other places, (a) questions may sometimes arise as to the respective rights of these different parties ; therefore, where King Charles II. by charter granted to the corporation of Walsall two fairs, to be holden annually, and confirmed to them all markets which had been heretofore holden, with a reservation of the rights of the lord of the manor, it appeared that a market had been holden immemorially in the High-street of Walsall until a very late period, when the corporation finding it inconvenient, removed it to another and more convenient place v/ithin the borough ; and also that the corporation had exercised other rights of ownership, as by taking down the old market place and erecting a new one, and by ordering that the market and fairs for pigs and other cattle should henceforth be kept in the new market place, and no longer in the High-street ; it also appeared that though the lord of the manor appointed the clerk of the market, j^et he did not receive any toll from the persons frequenting it ; on an indictment, therefore, of the defendant, by the corporation, for a nuisance in erecting stalls in the High-street after the removal of the market, the judge, upon the trial, left it to *the jury to say whether the corporation were p^coq-i owners of the market, adding that if they were, the right of removal L J was incident to the grant. The jury having found in the affirmative, the Court refused to grant a new trial. (6) 695. As to the remedies in case of a disturbance of a market before the (0 Macclesfield (Mavor, Sec.) v. Pedley, 4 B. & Ad. 307.'' {u) Prince v. Lewis, 5 11. & C.^ 363 ; S. C, 2 C. & P. G6. (x) Mosley v. Walker, 7 B. & C. 40A (y) Lowden v. Ilieron, Holt, 547. («) Holcroft V. Heel, 1 B. & P. 400. (a) Case of Dorking Market, 2 Taunt. 133: Tewksburv (BnilifFs, &c.) v. Bricknell, Id.' 220. {!>) R. V. Cotterill, 1 B. &. A. 67. i-Eng. Com. Law Reps. xxiv. 87. <^Id. xi. 252. ■^Id. xiv. 13. 372 crabb's law of real property. 3 & 4 W. 4, c. 27, s. 36, abolishing assizes, (see Dig. P. iii. tit. Limita- tions,) » if a fair or market were set up to the nuisance of another, the party ao-o-rieved might have an assize of nuisance, (c) but now the remedy is an action on the case as in other cases of disturbance ;()Case of Sutton's Hospital, 10 Co. 30; Norris v. Staps, Hob. 211 ; The City of Lon- don V. Vanacre, 5 Mod. 438. (r) Dav. 44, 48. (.'/) 1 Roll. Abr. 514; 1 Coram. 475. (e) R. v. Bird, 13 East, 367. (1) Ante 543, n. (2) Bank of the U. S. v. Dandridgc, 12 Wheat. 64. Reynolds v. Stark Co. 5 Ham. 205. First Parish v. Sutton, 3 Pick. 239. Rumford v. Wood, 13"Mass. 198. 3I'Cartce v. Orphan Asvlum, 9 Cow. 508. The right to hold depends on the mortmain acts. Leazure v. Hillc- gas, 7 S. &. R. 320. (3) Marietta v. Fearing, 4 Ham. 431, 378 crabb's law of real property. franchised by the corporation, unless they had authority by the express words of the grant, or by prescription, (/) but in Teddersley's case(g-) it was held, that reasonable cause ought to be shown, and in Lord Bruce's case(/i) it is said, that in modern times the opinion has been, that a power of amotion is incident to a corporation, (^)(l) Corporations have also many of the franchises already mentioned but these must be mentioned in the charter and granted by express words ;(A:} and they may claim by prescription as natural persons ;(/) but the corpora- tion of a town cannot prescribe for the freeholders of the town.(?n) 5. How a Corporation differs from natural Persans. 702. The points of difference between corporations and natural persons, relate to — 1. Modes of proceeding by corporations. r*Pi ial *^* Grants made by or to corporations. '- -' 3. How corporations may sue or be sued. 4. Liabilities of corporations. 5. Acts and powers of corporations. 703. A corporation aggregate can do nothing but by attorney ;''m^ it ought to appear by attorney, for if all appear in person, it is not suffi- cient ;'n) so it ought to acknowledge a deed by attorney ;(o) and any natu- ral person may be an attorney for a corporation, though he be a member of the same corporation ;(;)) so, if a corporation make a lease, it must after- wards make an attorney to enter and deliver the lease ;(«7) so, to avoid a lease for non-payment of rent, it ought to make an attorney to enter dc novo;[r) but a dean and chapter, in their chapter-house, acknowledged a deed of grant of their lands to the king without making an attorney, and it was held, that it might be well done ;(s) so, to put their common seal to a deed without attorney, (s) 704. So, aggregate corporations, consisting of a constant succession, can regularly do no act without writing, therefore gifts to and by them must be by deed;(f) so, a corporation aggregate cannot, without deed, command their baiUff to enter into certain lands of their lessee for years, for a condi- tion broken ;(m) nor to enter for a forfeiture, nor to enter into lands pur- (/) Bag^'g case, 11 Co. 99 a; Yates's case, Sty. 477; R. v. Coventry (Mayor, &c.^, 1 Ld. Raj'iii. 392 ; R. v. Doncaster (Miiyor, &c.) 2 Ld. Rayra. 1566. (g) 1 Sid. 14. {h) 2 Str. 819. (i) See also R. v. Richardson, 1 Burr. 517. (fc) 39 Ed. 3. 35 ; 19 H. 6. 52 ; 14 H. 8. 5 ; Sheriff of Canterbury, 1 Keb. 840. {I) 1 Ld. Raym. 113. (m) 2 Keb. 2. (m) 1 Inst. 66, b. (n) Bro. Corporation, 28. (o) 1 Leon. 184; Moor, 591. (p) Bro. Corporation, 4. (/j) 1 Ventr. 257. (r) Anon., Skinn. 413. (s) :\roor, 676. (/) 1 Inst. 94. b. ; 6 Co. 38 ; Cro. Car. 170 ; 2 Saund. 305. (u) Dumper v. Syms, Cro. El. 815. (1) Commonwealth v. St. Patrick's Society, 2 Binn. 448. Id. v. Guardians of the Poor, 6 S. & R. 469. FRANCHISES. 379 chased ;(.r) so, not to make livery of seisin ;(?/) so, not to accept an assignee of a lease as tenant. (z)(l) So, if a lease for years be made to a corporation aggregate, they cannot make an actual surrender without deed ;(o) *but if they accept a r-^f-jq-^ new lease thereof, this is a surrender of their first lease in law.(6) L -* But a corporation may employ one in ordinary services without deed, as a butler, cook, &c., but not to appear for them in any thing which concerns their interest or title ;(c) so, to make a distress, for this does not vest or divest any interest ;(f/) so, a man may avow taking cattle damage feasant, as bailiff to a corporation, Avithout leaving a precept in writing ;(e) so, a verbal notice to quit, given by the steward of a corporation, will be sutfi- cient ;(/) so, where the churchwardens of S. were incorporated, and the king leased to them for twenty years, and, in consideration of a surrender thereof, leased to them for fifty years, held, that they might with their own hands, and without writing, deliver the first letters-patent into Chancery to be cancelled. (§•) 705. Regularly, as a corporation can manifest its intention only by the help of a common seal, all its acts ought to be under seal ; therefore, where a corporation, by a verbal agreement with a pauper, leased to him the tolls of a market for above 10/. a year, it was held that he could not gain a set- tlement thereby, as no interest could pass from a corporation but under the common seal ;(/i^ but in equity it has been held not necessary that every such act should be under seal ;(2) so, though the affixing of the common seal to the deed of conveyance of a corporation be sufficient to pass the estate without a formal delivery, if done with that intent, 3^et it will have no such effect if the order for affixing the seal be accompanied with a direc- (x) Bro. Corporation, 50 ; 1 Leon. 30; Predyman v. Wcdry, Cro. Jac. 110. (y) Throckmorton v. Tracer, Plorv. 149. (z) Dean and Chapter of VVindsor v. Gover, 2 Saund. 305; S. C. Anon., 1 Vent. 96 ; S. C. nom. Windsor (Dean, «S;:c.) v. Gower; T. Raym. 194. (a) 10 Co. 63. {b)lGCo.G8. (c) 1 Vent. 47 ; 1 ^lod. 18. () 10 Co. 32 b. (c) Thursfield and Jones, Master, &.C., of the Company of Wax-chandlers, Skinn, 27. (1) State of Maryland v. Bank of Maryland, 6 Gill & Johns. 216. Union Bank v. Ellicott, id. 363. Pope v. Brandon, 2 Stewt. 404. Catlin v. The Eagle Bank, 6 Conn. 231. Revere V. The Boston Copper Company, 15 Pick. 351. Dana v. The Bank of the United Slates, 5 W. &, Serg. 223. Wilde v. Jenkins, 4 Paig. Ch. Rep. 481. The rule laid down in Sice T. Bloom, 19 Johns. 475, that suffering an act to be done, which destroys the end and ol)jcct for wliieh the corporation was instituted, must be regarded as equivalent to surrender and dissolution, is by subsequent decision confined to the peculiar question then before the Court, viz., Whether the corporation could not be considered dissolved for the purpose ■of sustaining an action by the creditors against the individual members given by tiie cliarter. Briggs v. Penniman, 1 Hopk. Ch. Kep. 301. 8 Cow. 387. Bank of Niagara v. Johnson, 8 Wend. 654. FRANCHISES. 383 711. In an action, of whatsoever kind, brought by a corporation, it is un- necessary to show how they were incorporated ; but on the general issue pleaded by the defendant, it is said, that they must prove that;((/](n so, as an action may be supported in this country, by a foreign corporation, in their corporate name and capacity, and it is sufficient if, *on the general ^__,-, issue being pleaded, they prove that by the law of the foreign country, L ^J they were effectually created a corporation. (e)(2) But in justifying a trespass in the assertion of a privilege or franchise of a corporation, it is necessary to show not only the existence of the corporation, but the manner in which it claims to be so, whether by charter, prescription, or Act of Parliament. (/) A sole corporation having two capacities, natural and corporate, must always shew in what right he sues ;(§•) but an aggregate corporation having only a corporate capacity, a suit in their corporate name can be only in that capacity ; therefore, it is^not necessary that a mayor and commonalty should allege seisin in right of the corporation, (A) or a warden and scholars should allege seisin in right of their college. (z) In equity corporations answer under their common seal and not upon oath, but it having been found that they would answer nothing to their prejudice, the Court have ordered that the clerk of the companj-^, and such principal members as the plaintifi' thinks fit, should answer upon oath.(^-) Sometimes where a discovery is necessary before a plaintiff" can bring his action against a corporation, a bill may be filed against the corporation and their secretary or principal officer for this purpose ; but in that case, if any of the matters called for would be prejudicial to the corporation, and not necessary to the plaintiff''s case, the officer will not be compelled to discover such parts. (/) If the majority of the members of a corporation are ready to put in their an- swer, and the head, who has the custody of the common seal, refuses to alfix it to the answer, a court of equity *will stay the process against the ^ -. corporation until ah application can be made to the Court of dueen's L -1 Bench for a mandamus to compel him, which that court will grant. (?n) Before the 3 & 4 W. 4, c. 27, s. 29, (see Dig. P. iii. tit. Limitations,) ecclesiastical corporations were not within any of the Statutes of Limitations (rf) Hob. 211. (e) Dutch West India Company v. Henriques van Moyses, 2 Ld. Raym. 1535 ; S. C, 1 Str. 612. (/) Pitts V. Gainer, 1 Ld. Raym. 558. («•) Dy. 102 ; Plow. 102. {h) 1 Leon. 153. (i) Cro. El. 232 ; 1 Andr. 272. [k) Anon., 1 Vern. 117 ; Wycli v. Meal, 3 P. Wms. 310 ; see also Fenton v. Hug-he,?, 7 Ves. 289 ; Dummer v. The Corporation of Chippenham, 14 Ves.244; Mitf. Eq. P. C. 153. (/) MoodcUy V. Morton, 1 B. C. C. 471. (m) R. v. Dr. Wyndham, Cowp. 377. (1) Such proof is required on the general issue beino^ pleaded. Agnew v. The Bank, 2 Harr. &. Gill, 493. Carlile v. Bates, 8 Johns. 378. Dutchess v. Davis, 14 Johns. 245. Bank V. Weed, 19 id. 300. United States Bank v. Stearns, 15 Wend. 314. Reese v. Conoco- cheaque, 5 Rand. 329. Contra,, Holding- such pica an admission of the fact. Monumoi v. Rogers, 1 Mass. 164. Wittington v. The Farmers' Bank, 5 Har. & Johns. 493 ; but this was created by a public law of the state where the suit was brought. Methodist Church v. Wood, 5 Ham. 286. Conard v. The Atlantic Ins. Co., 1 Peters, 450. The Society v. Pawlct, 4 Pet. 501. Concord v. M'lntire, 6 N, Hamp. 527. Taylor v. The Bank, 7 "Monr. 584. Boston v. Spooner, 5 Vermont, 93. (2) Bank of Augusta v. Earle, 13 Pet 519-90. 384: crash's law of real property. then in force, and ccu]d not, therefore, bar their successors by neglecting to bring actions for the recovery of their possessions. (n) 712. Corporations, in their character of owners or occupiers of houses or lands, are subject to the same burthens as individuals are subject to in the same character.(l) Having lands or tenements in any shire, and residing in any town corporate, they are said to be inhabitants within the purview of the 22 H. 8, c. 3, for the repair of bridges ;(o) so, they are liable to be rated to the poor within the 43 El. c. 2, in respect of lands whereof they are seis- ed in fee for their own profit \[p^ so, they are rateable to the repairs of the church •firf) so, they may be bound exclusively to the repair of a highway, bridge, or creek, by reason of tenure, or they may be so compelled by force of a general prescription that they ought and have been used to do so from time immemorial, without an allegation that they used to do so in respect^ of the tenure of certain lands, or for any other consideration, because a corpora- tion, in judgment of law, never dies ; and, therefore, if they were ever bound to such a duty, they must continue to be so always ;(r) neither is it any plea that they have done it out of charity, for what they have always done they shall be presumed to have been always bound to do ; therefore, if a bishop or prior halh once or twice of alms repaired a bridge, it bindeth not, and P,*p.-«-| *yet is evidence against him until he prove the contrary, but if time L J out of mind they and their predecessors have repaired it of alma, this shall bind them to it ;(s) and where a party is bound ratione prescrip- tionis tanfiim, there a distinction has been taken between bodies politic, spiritual, or temporal, and natural persons ; for bodies politic may be bound by usage or prescription only, because they are local and have succession perpetual, but a natural person cannot be bound by the act of his ancestor, without a lien or binding and assets. (/) It is said that it hath not been known, that a corporation hath been bound in a recognizance or statute-merchant ;(?<) so, a corporation cannot be out- lawed ;(.t) and as to what actions a corporation may be liable to, see ante §§ 710, 711. 713. " As to the remedy of levying a duty upon a corporation, the books all agree that it can be done, though they differ as to the mode."(y) Shep- pard, in his Treatise upon Corporations, (cited in R. v. Gardner, Cowp. 85,) says, " If a sum of money be to be levied upon a corporation, it may be levied upon the mayor or chief magistrate, or upon any person being a member of the corporation;" see also Sty. 367 ; but in the Case of the City (7J) Plow. 358 ; 11 Co. 78 b ; 1 Roll. Rep. 151. (o) 2 Inst. 703. (/>) R. V. Gardner, Cowp. 79. (7) Tliursficld and Jones, T. Jo. 187. (r) 1 Hawk. P C. c. 76, s. 8; Bac. Abr. tit. Corporations, (E. 1); see also Mayor of Lynn v. Turner, Cowp. 87. (s) Master of Leonard's case, 10 E. 3. 28, 29, cited 2 Inst. 700. (0 The Prior of Markiat's case, 49 E. 3. 5 b, cited 2 Inst. 700 ; see also 21 E. 4, pi. 3 ; R. V, Ecclesfield (Inhabs.), 1 B. &, A. 348. (m) Moor, 68, pi. 182. (x) 10 Co. 32, b. (y) Per Aston, J., R. v. Gardner, Cowp. 85. (1) United Stales v. Amidy, 11 Wheat. 3S2. The People v. The Utica Insurance Co., 5 Johns. 358. FRANCHISES. 385 of London, (j2-) it is said, " that for a duty or charge upon a corporation every particular member thereof is not hable, but process ought to go in their pubhc capacity ;" and in R, v. Gardner,(rt) this is held to be the right law, although in Thursfield and Jones(6) it is said, "If the company had neither lands nor goods, there was no way to make them appear, yet if they stood out, they must lie by the heels in their natural capacity."(l) *If a corporation aggregate disseise to the use of another, they ^^__-| are disseisors in their natural capacity, and the persons who com- L J mitted the wrong shall be charged therewith, and not the corporation, which consisting of a constant succession of various persons, and as a cor- poration, can regularly do no act without writing ;(c) and if a mayor or any other member of a corporation, procure a false return to be made to a man- damus, they may be proceeded against in their private capacities ;(f/) an action, however, cannot be maintained against individuals for acts erroneously done by them in a corporate capacity to the injury of the plaintiff, unless, at least, there be ground to impute malice to them.(e) In equity the private members of a company have been made liable to the company's debts, v/here the company had no goods ;(/) and as to the liability of the members of joint-stock companies under different statutes, see Dig. p. ii. tit. Companies. 714. Where no special provision is made by the constitution of a corpo- ration, the whole are bound by the acts, not only of the major part, but of the major part of those present at a regular corporate meeting, Avhether the number present be a majority of the whole or not;(g•^(3) and so, although a particular constitution require the presence of a majority of the whole number, yet the concurrence and consent of a majority of the whole is not necessary, it is sufficient that a majority of the number present concur ;(//) so, where a number less than a majority of the whole are by a particular constitution competent to do a corporate act, the act of a majority of that smaller number is equivalent to tlie act of the majority of the whole ; thus by the constitu- tion of the *City of London, forty are sufficient to form a court of fskkq-i common council, though the number of common councilmen exceeds L -' the double of that number, and a majority of the forty, if no more be pre- {z) 1 Vcntr. 351. {a) Sup. (//) Skinn. 27. (c) Bro. tit. Disseisin, 65; cited Bac. Abr. tit. Disseisin, (B.) {d) Mayor of Thetford's case, 1 Salk, 192 ; R. v. Pilkington, Carth. 171 ; R. v. Rippon, 1 Ld. Raym. 564. (e) Harman v. Tappenden, 1 East, 555. (/) 2 Vern. 396. ig) Cov/p, 249. (A) 2 Burr. 1019. (1) A distinction is taken between those quasi corporations invested with siicli powers without their consent, being political in their character, such as towns, counties, hundreds, &,c., in which every member is liable to the payment of the debts ; against these no action lies unless given by statute ; and a proper aggregate corporation, having or being sup- posed to have a corporate fund, where there is no liability of the individual corporators, unless it be given by the charter. Riddle v. Proprietors, 7 Mass. 187. Commonwealth V. Blue Hill, 5 Mass. 422. IMarcy v. C^lark, 17 id. 336. Adams v. Wiscassct Bank, 1 Greenl. 364. Merchants' Bank v. Cook, 4 Pick. 414. Atwater v. Woodbridgc, 6 Conn. 228. (2) Cram v. Bangor, 3 Fair'f. 359. Revere v. Boston Copper Co. 15 Pick. 363. 386 crabb's law of real property. sent, bind the whole corporation. (z) Where a charter requires an act to he done by the major part of a definite body, no corporate assembly can be composed of less than a majority of such definite body, and, consequently, when the number is reduced below that majority, the power of acting is at an end ;(A:)(1) sed seats where the number is indefinite, for there the words "major part" have no operation, and any number of the body, duly assem- bled, however small, is sufficient to form a corporate assembly. (/) 715. With respect to the concurrence of the head of the corporation, it appears to be a rule that the head is but a member of the acting part, in the same manner as any other member, and without a particular usage or the express provision of a charter, he has no negative voice ; therefore, where a power of election is vested in a set number, quorum A. and B. to be two, their presence only is required, and not their consent, Cotton and Davies;(m) see also R. v. Blythe,(n) R. v. Sutton, (o) and Serjeant Whitacre's case,(/?) in which last case it was held, that, if the actual consent of the bailiffs had been required, their consent should be intended, either as actually given, or as included in that of the majority, for that, as in all corporate acts, the act of the majority is the act of the whole ; so, the bailiffs being the head of the corporation, nothing could be done without their presence, though it had not been expressly required, and its being so required did not render their con- , currence necessary; *but where the provisions of a charter direct L J that the new mayor shall be sworn before his predecessor, the pre- sence only of the latter is not sufficient ; there must also be his assent, or at least not his dissent. (5') So, if the charter says the mayor shall summon a court, and he refuses, it seems that this may be done without him.(?') 716. The necessity of summoning the members, and the mode of so doing, is another point on which the validity of corporate proceedings de- pends. Where a corporate act, as an election, is to be done not on a charter day, whether to be done by the whole corporation or by a select number, notice of the meeting must be given to all;(2) but where an elec- tion is to be at a charter day, fixing a particular day, there a summons is not necessary, for every member is bound to take notice of the day ;(*) but where the whole corporation are summoned for a particular purpose, as to receive the resignation of a common councilman, a select body, who are all present and consenting, may, at the same meeting, without any particular (!) Att.-Gcn. V. Day, 2 Atk. 212. (A) R. V. Newsham, Say. 211 ; R. v. Varlo, Cowp. 248; R. v. Monday, Id. 530; R. v. Grimes, 5 Burr. 2598; R. v. Bcllringer, 4 T. R. 810; R. v. Miller, 6 T. R. 268; R. v. Morris, 4 East, 17. (I) R. V. Varlo, &c., sup. {m) 1 Str. 53. (n) 5 Mod. 404. 421. (0) 10 Mod. 74. (/)) 2 Ld. Raym. 1233; S. C. nom. R. v. Ipswicli (Railiffs) 2 Salk. 434. (7) R. V. Ellis, 2 Str. 994 ; more fully reported in R. v. Courtenay, 9 East, 252, n. (r) R. V. Atkins, 3 Mod. 3. (s) 1 Vez. 416 ; R. v. Slirewsbury (Mayor,) Ca. temp. Hardw. 151. (1) Note (a) to 7 Cowcn's Rep. 530. (2) Gordon v. Preston, 1 W. 387. Stow v. Wyse, 7 Conn. 214. FRANCHISES. 337. summons to them fo)' that purpose in their select capacity, proceed to the election of a common councilman in the place of the other resigned, the power of election being in the select body, and the charier not requiring any previous summons, R. v. Theodorick,(i) recognising R. v. Carlisle (Mayor, &G.,^(u\ where, instead of all, only some of the select body were present; also R. V. Strangways, cited in R. v. Shrewsbury, (Mayor,)(y) in which case it was held that when the acts are to be done by a select number, notice must be given of the time of meeting, and that it is to do some corpo- rate act, though what particular corporate act need not be specified; and in such case the acts of a majority would bind the whole body; or if all were present, *though by accident and ivithout notice, their acts would j^^^.-. be good, but the acts of a majority merely in such a case would not L J be binding; so, in R. v. Wake,(a^) it was held, that wherever notice is given for one particular business, the body cannot go into other business, unless the ivJiole body is met, and it is done by consent. Where a summons is necessary, it is not sufficient that the usual and general orders be given to the summoning officer, the latter must actually do everything he possibly can to summon all the members of the select body ;(y) and it is laid down as a rule, that where there is a usual method of notice, that cannot be dispensed with, though there be actual summons of all the members, unless, indeed, every single member be present at the meeting, and consent to waive \i,{z'\ but notice to non-residents is not necessary. (o) 717. Although it is now settled that a power of amotion or disfran- chising its members is incident to a corporation, (6) yet a removal being an act of an odious nature, all clauses concerning it in a charter must receive a strict interpretation ; therefore, where a charter empowers a majority to to remove a person, held, that the word " majority" should be understood a majority of the whole corporation ;(c) so, in such case a general summons without specifying any particular act for which the meeting is called is not sufficient, it is necessary to mention that it is intended to consider the remo- val of the particular person ;((/) so, where it is intended to remove any qne of the members or officers of a corporation, it is absolutely necessary, not only that he should be summoned generally to attend, (1) but he must have a particular summons to attend, and answer the particular charge alleged *against him ;(e) but under certain circumstances such notice may p^K/^^,-. be dispensed with, as where a man is charged in plenis comitiis and L -' ordered to prepare his defence by such a time, this will be good, though there be no actual summons, because if the party be heard it is sufficient ;(y) but it seems to be doubtful, whether his being charged and answering in the same assembly will cure the want of notice. (»•) (t) 8 East, 543. (w) 1 Str. 38.5. (c) Sup. (x) Barnard. 80. (y) R. v. Shrewsbury (Mayor,) Ca. temp. Ilardw. 147. (2) R. V. May, 5 Burr. 2G82. {n) R. v. Grimes, .5 Burr. 2599. (/;) R. V. Richard.son, 1 Burr.5.?n ; and see ante, § 701. (c) R. v. Sutton, 10 Mod. 7G. {il) R. V. Liverpool (Mayor,) 2 Burr. 723; R. v. Doncastcr (Mayor, &c.,) Id. 738. {(•) Bag;r's case, 1 1 Co. 99 ; Glvdu's case, 4 Mod. 33, 37. ( /•) R. V. Chalke, 1 Ld. Ravm."'225 ; S. C, 1 Salk. 42. (g) Serjeant Wliitakcr's case, 2 Ld. Raym. 1240 ; S. C. 2 Salk. 435. (1) Commonwealth v. Pennsylvania Beneficial Inst., 2 S. &. R. 141. Delany v. Neuse, 1 Hawk. 274. 388 crabb's law of real property. When a man is removable for non-residence, there is no necessity to sum- mon him, because he is out of the reach of summons ;(/j) but if he be removable for non-attendance at the corporate assembly, he must have had personal notice to attend, and that his presence was necessary, for the usual notice of the intended meeting will not be sufficient, unless that usual notice be personal. (i) A man may be constituted a burgess, or appointed to an office by deed under the common seal, and in that case he ought to be discharged in the same manner, but where the party is constituted or appointed by election, nothing more is required than an entry in the corporation books, and he may be discharged by an order entered in the same manner ;(A;) so, where an office is granted by deed, the resignation or surrender must also be by deed, but where an officer is appointed b}^ election, the corporation may accept his resignation by parol before them ;(/_) as to what may be done by deed or otherwise, see ante, § 704. 718. Regularly, there can be no election but to an office which is actual- ly vacant, for though it may be a practice in some cases to choose a person ^ , beforehand, which may be *called an inceptive election, and on the L -' death of the predecessor to admit the person before nominated, which completes the election, yet such an election is not binding on the electors, and when the vacancy happens they may elect another. (77?) If the election of a particular officer be, by ancient charter, vested in one body, a subsequent one cannot of itself alter the mode of election ; but if the subsequent charter be accepted by the corporation at large, and they act in conformity to it, and acquiesce, such charter is good, and this submission and acquiescence shall be an evidence of their consent. (n) There may be an election in one body, and approbation in another ;(o) so, a charter may give a power of election to a less number than the majority of a definite body ; and in a prescriptive corporation, a usage to this effect is evidence of such a charter ;(») so, where the person elected is unqualified, and the electors have notice of the want of qualification, their votes to him are thrown away, and the person who has the next greater number is to be considered as duly elected, and is entitled to be sworn in ;() Per Ld. Mansfield, I Burr. 200. (c) Phillips V. Bury, 4 Mod. 110. (rf) Skinn. 13. (e) 4 .Mod. 233 ; S. C, Skinn. 369 ; Comb. 279. (/) Cowp. 378. (g-) St. John's College v. Toddington, 1 Burr. 202, 203, recognizing Attorney -General V. Talbot, 3 Atk. 662. 392 crabb's law of real property. 723. A bishop, as visiter of a dean and chapel, seems to have no jurisdic- tion to determine between the members on the subject of their corporate pro- perty, for this is held to be a great question ;(/i) but it is settled that where the dispute is between the body and the executors or administrators of a deceased member he has no jurisdiction in the matter ;(/t) so, it is clear that jj^ -, he cannot by virtue of such *power fill up a vacancy in the stalls L -'of the cathedral by lapse, such an office being a freehold ;(z) and whether he can, as visiter, even make a temporary election to such stalls is not settled. (i) So, where an estate is in the college, that is, in the whole body, and they are to act in a trust, the visiter cannot meddle in a matter which is the subject of such trust ;(A') but subsequent benefactions may be put under the power of the visiter or not, at the will of the donor,(A:) and he may prescribe the manner in which the visiter shall exercise his power ;(^) so, though a general visiter has incidental power, yet the founder may res- train him as to particular instances, as where the Crown reserved to itself the right of making statutes; in that case, the altering of statutes is excepted from the visiter's power, St. John's College v. Toddington ;(?«) and in this case it is said, " Where a body of statutes has been given by the founder I should doubt extremely whether a visiter can alter those statutes or give new laws, whatever may hav^e been the notion in former times. "(n) See further infra, § 724. c. How far a Visiter'' s Power may he controlled. 724. If a visiter gives sentence as to what comes within his jurisdiction, it shall be definitive,(l) for no appeal lies to the queen, or elsewhere ;() 3 T. R. 199. (7) 1 Inst. 13, b.; Moor, 283; Godb. 211.' (k) Winch, 37. (Z) 1 Roll. Abr. d61. (w) 3 Lev. 238. (n) 2 Inst. 281.496; 9 Co. 27 b. (o) 1 Inst. 114. (1) Phillipps V. Wickham, 1 Paig. Ch. R. 590. Lehigh v. Lehigh, 4 Raw. 9. Rose v. The Turnpike Co. 3 W. 46. (2) It is said in Mamma v. Potomac Co. 8 Pet. 286, tliat on a surrender the property held in trust for the corporation, or which has not passed into the hands of bona fide pur- chasers, would remain subject to its engagements. But it seems this rule would not pre- vail in case of dissolution by judgment for forfeiture. Bank v. The State, 1 Black, 263. [*577] FRANCHISES. 397 Franchises which do not He in prescription, but are only allowable by- charter, if the grant was before time of memory, may be claimed by charter of confirmation or allowance in Eyre, or before the justices in Gl. B., C. P., or Exchq,, without shewing the original grant, (;>) and also without such confirmation or allowance ;(5') and an allowance in Eyre was held peremp- tory to the king,(r) but not in the Q,. B. if the grant afterwards appear to be illegal ;(?•) and in Biddulph v. AtherCs) it was held, that allowance in Eyre is not conclusive evidence against third persons, therefore, where the plaintiff proved that the lords of the manor of Lancing had taken and enjoyed wreck for ninety-two years, held, that two allowances in Eyre and a judgment in trespass 400 years since are not conclusive evidence against usage for that time; and it was said in this case, " The present records were no more conclusive evidence than an inquisition *post morte?7i, or a verdict (in many cases) touching the same matter, which is often res inter alios acta, as in the action of trespass ; it might, perhaps, be brought by the person then in possession against persons who were mere wrongdoers for anything that appears ; in pleading an allowance in Eyre, the true way is to allege an immemorial usage, and then also to produce the allowance in B. R. or in Eyre." (t^ 730. An ancient charter, if the words are general or obscure, shall be construed according to ancient allowance, (?<) or according to the import of the words when the charter was made, and subsequent usage ; but if the charters were granted within time of memory, then they are pleadable without shewing any allowance. (a?) By the 3 (or 3 & 4) Ed. 6, c. 4, and 13 El. c. 6, if the charter be lost, showing an exemphfication or constat of the roll is sufficient. (y) Of franchises which may be claimed by prescription, as wreck, waif, stray, &c., as they may be originally claimed by usage, which is a matter in pais, so usage may support them without the aid of any record either of creation, allowance, or confirmation. (rj III. I^oto iFraucIu'scs mag te lost or tJcstrogftr. § 731, Merger of Francliises in the Crown. I § 732. Forfeiture of Franchisea. Revivor of Franchises, I Surrender of Franchises. § 731. If Franchises and liberties are granted by the queen, which were before in esse, and afterwards by escheat surrender, or otherwise come back to the Crown, they are *reunited to and merge in the Crown, and r^^^Q-, the queen has them in jure coronas as before, such as fugitives' ^ -^ (p) 2 Inst. 231 ; Case of the Ahbot of Strata ]\Iarcella, 9 Co. 28 a: 2 RoU. Abr. 201. (9) 2 Roll. Abr. 200 ; W. Jo. 284. (r) 2 Roll. 201. (s) 2 Wils. 23. it) Per Holt, C. J., 1 Salk. 184, cited and reco) As to the second property of being done in person, that necessarily admitted, and still does admit of exceptions, for in an early case it was held, that where a citizen of London held lands by the tenure of presenting a towel to the king to wash his hands at the coronation, he was admitted to r*Piq9"i perform the service by deputy, he not being of quality to perform L- "^-^ *this high and honourable service ;(c) and it seems that no person under the degree of a knight could be admitted ;(c) and as a woman connot perform the office in person, she will be admitted to do it by deputy ;(c) so, in like manner, where the heir is under age, he is disquahfied to perform the office in person. The tenure of grand serjeanty is expressly retained with a reservation of all the honorary services pecuhar to it, but as regards the burthensome incidents which it had in common with knight's service, it falls under the general provision by which they are abolished, (rf) and is made in effect free (y) 1 Inst. 73 ; 2 Inst. 65 et seq. ; Wright. Ten. 210. (z) Litt. sect. 156. (o) Co. Litt. 107, b, (6) 1 Inst. 105, b. (c) 1 Inst. 107, a, b. id) Harg. Co. Litt. 107, n. ; (1) see also Gilb. £q. Rep. 176. 1 TENURE IN BURGAGE. 407 and common socage, as is said by Littleton of petty serjeanty, Litt. s. 180, and see infra, § 748. Petty Serjeanty. 748. Petty serjeanty consists not in any personal service like grand ser- jeanty, but in rendering something annually, as a bow, a sword, and the like to the queen, which, being the same as where a man ought to pay rent, is socage in effect ;(e) it is probable, therefore, for this reason, that it is not expressly mentioned in the statute, but being a tenure in capite, though of the socage kind, it was liable to livery and primer seisin, from which it is relieved by the general provision relating to these burthens. There is another tenure mentioned by Littleton under the name of Homage Auncestrelj, which was where the same tenant and his ancestors held by homage of the same lord and his ancestors. (/) This tenure is not expressly mentioned in the statute, but falls no doubt within the general provision which abolishes homage. (i>-) It had in all probability expired before the statute was passed, as my Lord Coke supposes that there was little or no land held, in his day, by that tenure. (A) *SECTION IIL TENURE IN BURGAGE. [*593] § 749. What is Burgage Tenure. Borough-English. 750. Force and extent of the Custom in re- srard to Descent. § 751. Special Custom. 752. Dower. Power of Disposition by Will. § 749. Burgage tenure is described by Glanvil and Littleton as but tenure in socage, (z) where the king or other person was lord of an ancient borough in which the tenements were held by a rent certain. Such boroughs had (and still have) divers customs which are connected with this tenure, and distinguish it from the ordinary socage tenure. Such customs are known by the name of Borough-English, and they alter the law in re- spect of descent as well as of dower, as also to the power of devising. By the custom of Borough-English, the youngest son shall inherit to his father as to the lands of which he dies seised, either in fee simple(A;) or fee tail,(/?) and there is no difierence between the law concerning copyholds in Borough-English, and freeholds in Borough-English ;(m) so, if land in Borough-English be given to A. and his heirs for the life of B., and A. die in the life-time of B., leaving two sons, the youngest shall be the special occupant, because the heir, that is, representative of the father, as to land of (c) Litt. s. 159. ig) Harg. Co. Litt. 100, b., n. (1.) (i) Glanv., 1. 7, c. 3 ; Litt. sect. 162. (0 Weeks v. Carvel, Noy, 106. (/) Litt., 1, 2, c. 7. (A) 1 Inst. 100, b. {k) Litt., sect. 211; 1 Inst. 110, b. (m) Reve v. Malstcr, Cro. Car. 411. 408 crabb's law of real property. that nature, must be the occupant, for where custom makes an heir, the law implies all incidents in course of descents.(n) *750. So, it has been held, that the custom will prevail^ against L J any disposition of the ancestor, therefore, where a man seised of Borough-English lands made a feoffment to the use of himself and the heirs male of his body secundum ciirsicm communis legis, and died leaving issue two sons, the youngest, notwithstanding the feoffhient, should inherit the lands ;(o) but it seems to be otherwise in the case of a devise, for in a de- vise it is said it may be well that an estate in fee shall cease in one, and shall be transferred to another •,{p) so, if a man seised of Borough-English lands died leaving two sons, and the eldest entered by abatement, held, that this should not take away the entry of the youngest, because the eldest should be presumed to enter to preserve the estate in his family, which he or his heirs may some time or other happen to enjoy, (y) So, where A. had issue five sons, and the youngest died in the lifetime of his father, leaving issue a daughter, after which the father purchased lands in Borough-English, and died, held, that the daughter of the fifth son should inherit ;(r) so, it has been held, that the youngest son should have his whole distributive share of personal estate of his father dying intestate, without bringing into hotchpot an estate of the nature of Borough-English descended to him, for that an estate so descended is not within the Statute of Distributions. (5) 751. By special custom the general custom may be restrained or extended. The customary descent may be restrained to lands in fee simple, and, therefore, it has been held that lands in fee tail should goto the heir at com- mon law -,{1) so, also, that the descent should be to the youngest by one -^ Avife ; but where *a man has sons by different venters, then the eld- L -J est should inherit to his father, and not the youngest. (w) So, the general custom may be extended to the collateral line, and the youngest brother shall by custom inherit, (r) or the youngest sister.(w) The law takes notice of the custom of Borough-English, and, therefore, it is sufficient to allege generally the custom ; but where it is a special custom extending or restraining the general custom, it must be specially pleaded, (a:) 752. The custom of Borous'h-English extends also to the law of dower; thus in some boroughs the wife shall have dower in respect of all the tene- (n) Clements v. Scudamore, 1 Salk. 243 ; S. C, 2 Ld. Raym. 1024 ; S. C, 1 P. Wms. 63 ; S. C, 6 Mod. 120 ; Holt, 124 ; S. P., Baxter v. Doudswell, 2 Lev. 138 ; S. C, 3 Keb. 475 ; 2 Danv. 542 ; see also Vaugh. 201 ; 2 Vern. 226. (0) Dy. 179 b, pi. 45 ; S. C, Jenk. 220. (p) Wellock v. Hammond, Cro. El. 205. (7) 1 Inst. 242, (r) Clements v. Scudamore, 6 Mod. 120 ; S. C, 2 Ld, Raym. 1024 ; S. C, 1 P. Wms. 63 ; S. C, Holt, 124 ; S. P., Baxter v. Doudswell, 2 Lev. 138 ; S. C, 3 Kcb. 475 ; 2 Danv. 542 ; see also Vaugh. 201 ; 2 Vern. 226. (s) Lutwyche v. Lutwyche, Cu. temp. Talb. 276. {t) Chapman v. Chapman, March, 54. (u) 1 Inst. 140, b. (») Id. 110,b. (w) Id. 140, b. C^) Robins, on Gavelk. 38 et seq. TENURE OF GAVELKIND. 409 ments which were her husband's ;(y) so, in some boroughs the wife shall have the moiety of her husband's lands so long as she lives unmarried ;(z) so, a custom that a wife shall have all her husband's copyholds in fee, as her free bench, is good, but it must be found precisely as it is pleaded ;(a) so, she shall have dower of rent, or common, for these ensue the nature of the land. (6) By the custom of Borough-English a man might dispose of his lands by will ;(c) although, by the general law of the land, such a disposition of a man's estate was not permitted before the reign of Hen. 8 ; so, by the same custom, a man might devise a rent or a common ;(f/) but whether a rent- charge in esse, issuing out of such lands, and having commenced Aviihin time of memory, was within the custom of devising, was for some time not settled, (e) In some cases the custom is general, that a man may devise any lands ;(/) in some places, that such lands only can be devised as the de- visor purchased ; in some, that he *may devise any estates ; in p^ggg-i others, only an estate for life ■,{g) so, a man may devise to his wife, L ^ because the devise does not take effect until after the decease of the devi- sor,(//) see further, post, tit. Customary Estates. SECTION IV. TENURE OF GAVELKIND. § 753. Properties of the tenure of Gavel- kind. 754. Power of Alienation by Infants. 755. Descent. ' Force of the Custom. Extends to Rent. Antiquity of the Custom. 756. Effect of a Condition broken. § 756. Effect of a Condition in a Will. 757. INIanner of the Descent. In the Case of the Queen. 758. Curtesy and Dower. 759. Gavelkind lands devisable. 760. Partition by Heirs. Prescription not necessary. Manner of pleading the Custom. § 753, Gavelkind is another species of socage tenure, the properties of which are as follow : — 1. The tenant is of age at fifteen, so as to be able to alien his estate. (z) 2. Gavelkind land was alienable without any license. (A:) 3. In most places the tenant had the power of devising lands before the Statute of Wills, (/) and the power of devising was held to remain although the lands were disgavelled by Act of Parliament. (m) (y) Lift. Ten. sect. 166. (s) 1 Inst. Ill; F. X. B. 150. (a) Boraston v. Hay, Cro. EI. 415. (6) Bro. Custom, 44, 58. (c) Litt., sect. 167. (d) 1 Inst. Ill, citing 4 E. 3, 53 ; 7 H. 6, 1 ; 22 Ass. 78. (e) Randall v. Jenkins, 1 Mod. 112 ; Robins, on Gavelk. 79 et. seq. ( f) 44 Ass. pi. 36 ; 18 Ed. 3, 8 ; 44 Ed. 3. 33. (e) 1 Inst. 1 12. (k) Lilt., sect. 168. (t) 3 Atk. 24. (i) 1 Ander. 193. {I) Launder v. Brooks, Cro. Car. 561 ; S. C, cited 2 Sid. 154. (to) Wiseman v. Cotton, 1 Lev. 80. 410 crabb's law of real property. 4. The lands descend not to the eldest or the youngest, or to any one son only, but to all the sons together. 5. These lands are not forfeitable for felony, although they are for treason. „ -, *6. Gavelkind lands are subject to dower and curtesy, see further L -J infra, §§ 754 et seq. ; also Lamb. Peramb. ; Bro. tit. Oust. 54 ; Somn. on Gavelk. ; Robins, on Gavelk., passim. 754. Where an infant sells gavelkind lands, it must be for a valuable con- sideration, or the contract will be void ;(w) and this must be done by feoff- ment, that being the most solemn and public mode of conveyance,(n) and the livery must be made by the infant in person, because an infant cannot make an attorney by the common law, and since the custom does not expressly derogate from the common law in that point, an equitable con- struction shall not make it derogate, for all customs are to be construed strictly,(o) and as to livery of seisin, see 7 & 8 V. c. 76 ; Prec. Conv. Append. No. xviii. So, it must be land in possession, and not in reversion or remainder, because the true value of a reversion or remainder cannot be known or computed. (/>) So, it must be land coming by descent, and not by purchase, because the infant's purchase could not be the subject-matter for the custom. (;j) So, an infant in gavelkind should have his age (now abolish- ed by 11 G. 4, and 1 W. 4, c. 47,) see Dig. P. ii.. Courts (Equity.) 755. The custom of gavelkind, as to descent, extends to estates tail, and such is the force of custom, in the descent both of gavelkind, and Borough- English, that even in the case of estates tail it cannot be changed by express words directing a descent secundum cursum communis Icgis ;[q) so, if a man give or devise lands in gavelkind to a man and his eldest heirs, this does not alter the customary inheritance, (r) for that can only be done by Act of Parhament ;(r) but there is a difference between lands inheritable by descent and those taken by purchase, as if lands of the nature of r^PiQRl *gavelkind be given to B. and his heirs, having issue divers sons, L -1 all his sons after his decease shall inherit ;(s) but if a lease for life be made, remainder to the right heirs of B., and B. dies, his eldest son only shall inherit, because this remainder being newly created, Avas not within the custom ;(s) but if a man seised of lands in gavelkind made a feoffment to the use of himself and his wife in tail, remainder to his right heirs, held, that this remainder shall go to the heirs by the custom, for it is the old use, and the heirs take by descent, thoir ancestor having a precedent estate of freehold, and not by purchase ;(f) so, where in a devise land is given to the customary heir, it shall go to him, although the subject of the gift is com- mon-law land, as if one having Borough-English land, and also lands at common law, devised the latter to his heir by Borough-English, held, that this was a sufficient description of the youngest son though not heir at com.- mon law,(w) and a like devise to gavelkind heirs would entitle all the sons.(w) (n) Lamb. 625 ; 1 And. 193. (o) Lamb. 628 ; 1 Roll. Abr. 568. (p) Bcndl. 33, pi. 52 ; Lamb. 627. \(f) Dy. 179 b, pi. 45 ; see also case of Tanistry, Dav. 31 a, and 36 b. (r) 1 Inst. 27. b. (s) Dy. 133 b; Hob. 31 ; 1 Inst. 140, b. (0 26 H. 8. 4 b ; Bro. Custom, pi. 1 ; Lamb. 548 ; Robins, on Gav. 117 et seq. (u) 2 Vem. 732 ; Prec. in Chan. 464. TENURE OF GAVELKIND. 411 Rent issuing out of gavelkind land shall ensue the nature of the land, and although it was at one time doubted, (a;) yet it seems to be now settled that there is no diflerence between a rent-service and a rent-charge in this case ; therefore, where a rent was granted out of gavelkind land to a man and his heirs, held, that it should descend to all the sons or brothers according to the descent of the land, and not go to the heir-at-law, for the rent issues out and is part of the profits of the land. The law of gavelkind is unlike other customs, for it is not good if it begins only just before the reign of R. 1, for this custom existed long before any such customs, and almost before any history; therefore, where lands annex- ed to a rectory in Kent, formerly belonging to one of the suppressed monasteries, and granted by H. 8, to a layman, to be holden *by r-^ rng-i knight's service in capite, were descendible according to the custom ' of gavelkind, held, that the tithes were according to the common law, as there could be no ancient descent with respect to them.(i/) 756. As a rule, the heir at common law may take advantage of any con- dition broken, (2:) and that too in cases where there is a special heir, whether by the custom by Borough-English or gavelkind, because a condition is a thing of new creation, and altogether collateral to the land, not being in any manner like to rent, which is part of the profits of the land, see supra, § 754 ; but it is said that Avhen the eldest son has entered for the condition broken, the younger children shall enjoy the land with him, because the eldest son is in of the old estate, which is still under the direction of the custom •,{a) so, a distinction has been taken between a condition in gross and a condition incident to a reversion, for of the latter the special heir shall take advantage, although not of the former ; therefore, where a man made a lease of land, parcel Borough-English and parcel at common law, with a proviso that if the lessor, his heirs or assigns, should give to the lessee a year's warning of his intention to dwell there, then the lease should be void, the lessor died leaving two sons, the eldest assigned over his part to the youngest, the question was whether the youngest was such a person as could give warning, or whether the condition was not gone by the severance of the reversion on the death of the lessor, and it was held, that the special heir might give the warning, for the law which severed the reversion, severed also the condition, so that for one part as heir in Borough-English, and on the other part as assignee of his brother by the 32 H. 8, c. 34, he should take advantage of the condition ; but on the other hand, *where a man made a feoff- r^;gQQ-i ment of Borough-English lands on condition, and died, having issue L two sons, held that the eldest son only should take advantage of the condi- tion, for it was a condition in gross, and not, as in the former case, where the reversion was in the lessor. (6) Where a man seised in fee of land in gavelkind had issue two sons, and by his last will devised the land to his eldest son, on condition that he paid to the wife of the devisor 100/. at a certain day, and he failed in payment, the question was whether the younger brother might enter on a moiety on (x) Randal v. Roberts, Noy, 15, contrfi, Bro. Rent, 10. 13. (y) Lushington v. Landlaff (Bp.,) 2 N. R. 491. (i) 1 Inst. 233 ; P Co. 44. (o) Lamb. Perarab. COS. (6) Moor, 113, pi. 254 ; S. C. Godb. 2. 413 crabb's law of real property. his brother by a hmitation implied in the estate, (c) but this doubt is, as Lord Coke observes, well resolved by the following determination. A copyholder, in fee of land descendible in Borough-English, having three sons and a daughter, after a surrender to the use of his will, devised the land to his eldest son, on condition of his paying to his daughter and each of his other sons 40*., within two years after his death : the eldest son was admitted and did not pay the money ; the youngest son entered on the land, and his entry was held lawful, for though the word " paying," in case of a will, might make a condition, yet here the law construed it a limi- tation, of which the youngest son in Borough-English, might take advan- tage. ((Z) 757. The manner of descent of gavelkind lands is first to the male chil- dren and then to the female children, then to collateral relations ;(e) and the descent has, after the manner of the civil law, regard to the stirpes ; and therefore if the eldest son had issue a daughter, and died, his daughter r*fini1 ^'^°"'^ i^^''^ representalionis inherit her father's share ;(/) other- 1- -^ wise the custom agrees with the common law, that a woman shall never take part of an inheritance with a man.(a') Where lands in gavelkind descended to the king and his brother, held, that the king should take one moiety and his brother the other, but when the king died his moiet)'^ should descend to his eldest son, and not according to the rules in gavelkind, for the king was seised of his moiety ^wre coronse, therefore it shall attend the Crown, and go to his eldest son. By the 31 H. 8, c. 3, and six other private Acts, a great part of the lands in Kent have been disgavelled, so as to destroy their partible quality and make them descendible to the eldest son, according to the course of the com- mon law ;(/t) but it has been held, that these lands have lost no other of the qualities belonging to gavelkind land than their partibility.(i) 758. Lands of gavelkind tenure are subject to curtesy and dower. By the custom of gavelkind, a man may be tenant by the curtesy without hav- ing any issue, (A:) but he is entitled to have only a moiety of the wife's land, and if he marries again it ceases. (/) So, likewise, the wife, )dy the same custom, is to have after the death of her husband a moiety of his inheritance in gavelkind, to hold as long as she continues unmarried and chaste ;(m) and a woman cannot waive this dower and claim dower at common law, for where gavelkind is the lex loci, it must govern the property of that place, (m) and in that case the dower must be a moiety, and not a third of the inheritance, as at common law.(n) r*fin2l *759. All gavelkind land is devisable, for being from the begin- L -^ ning allodial it followed the rules of the civil law, which permits (c) Dy.316. ((/) Wellocke v. Hammond, 3 Co. 20 ; S. C, Cro. El. 204; 2 Leon. 114. (e) 1 Inst. 140, a. ; Robins, on Gavelkind, 92. (/) Litt., sect. 210 ; Lamb. 608 ; 1 Inst. 140, a. ; 1 Salk. 243 ; 1 P. Wms. 63 ; 6 Mod. 129. (j/) Glanv., ]. 7, c. 3. (A) I Inst. 140, b ; Rob. on Gavelk. 75. (i) 1 Sid. 77 ; Lev. 80 ; 2 Keb. 288. {k) 1 Inst. 30, a. {I) Lamb. 615 ; 1 Inst. 30, a.; Rob. Gavelk. 135 et seq. (?«) Hunt V. Gilburne, Cro. El. 121 ; S. C. nom. Hunt and Gilborn's case, 1 Leon. 133; Lamb. 616. (n) Sav. 91 FRANKALMOIONE. 413 any person to make his will ;(o) but by the express words of the Statute of Frauds, which is re-enacted by the 7 W. 4 & 1 Vict. c. 26 the devise of these as of other lands must be in Avriting. « • 760. Heirs in gavelkind shall make partition as parceners, and a writ of partition lies between them as it does between parceners at common la.\v,(p) and in the declaration upon such writ the custom must be mentioned, as to say that the land is of the custom of gavelkind ; but it is necessary to pre- scribe, for though the custom is different from the general law of the kino-- dom, it must be taken notice of to the judges, yet there is no necessity for prescribing, because it is lex loci;(p) so, it is sufficient for any one, who will entitle himself by the custom of gavelkind, to plead that the land is in Kent, and of the nature of gavelkind, without pleading the custom gene- rally ; but if any one will plead the custom of devising, or of having a moiety as tenant by the curtesy or in dower, he must plead the custom spe- cially, for gavelkind is the general law of the place, and not a particular custom, and the judges only take notice of the general and not of the spe- cial customs of gavelkind.(5') *SECTION V. [*603] FRANKALMOIGNE. ^ 761. Frankalmoigne excepted out of the I § 762. Spiritual Services belong to this Statute. I Tenure. § 761. Frankalmoigne, another tenure which is excepted out of the statute 12 C. 2, c. 24, is that whereby a religious corporation aggregate or sole hold lands of the donor to them and their successors, and the service they had to perform being divine, they were not bound to do fealty,(?*) but if a tenant in frankalmoigne alien his land or tenement in fee, to hold of the lord by the same services as he held, the alienee, although he be an eccle- siastic, shall hold it by fealty, for he cannot hold it in frankalmoigne, because since the Statute of Quia Emplores, 18 Ed. 1, c. 1, he cannot hold it of the grantor, unless under a license granted by virtue of the 1 & 2 Ph. & M. c. 8, s. 54.(5) A tenement in frankalmoigne is not only exempted from all temporal ser- vices, but the lord of whom he holds is likewise bound to acquit him of every service and fruit of tenure, which the lord paramount may demand of the land holden by this tenure. (A 762. Spiritual tenure is twofold, namely, tenure by frankalmoigne, and tenure by divine service; and the services to be performed are either spi- ritual, as prayers to God, or temporal, as the distribution of alms to the (0) Rob. Gav. 234. ( p) Litt. Ten., sect. 26-') ; 1 Inst. 1 75. (9) Launder v. Brooks, Cro. Car. 562 ; Lamb. 595 ; Rob. on Gavclk. 41 et seq. (r) 1 Inst. 93, 95. (s) Id. 98 ; 2 Inst. 502. (0 1 Inst. 99, 100. December, 1846 27 414 crabb's law of real propertt. poor,(t/) as in the latter case is the office of the queen's aImoner,(.T) which is usually given to the Archbishop of York, with the title of Lord High Almoner.(^) As the manner of celebrating *divine service has been *- -^ altered by several statutes, it is sufficient if a tenant in frankfri- moigne perform such divine service as may now lawfully be performed. (2) As the divine service which ought to be performed is never ascertained by the deed on creating the tenure of frankalmoigne, no distress can be made, although it be not performed; but in default of performance, the defaulter is amenable to the ordinary or visiter, Avho may punish him for the same. (a) But tenure by divine service differs from that of frankal- moigne in respect of the certainty of the services to be performed, and of the remedy by distress to which such tenants are liable on non-performance of the stated services. Fealty also is incident to divine service, though not to frankalmoigne. Neither of these tenures can be created by a subject at this day, in consequence of the above-mentioned statute 18 Ed. 1, and the 12 C. 2 expressly provides that frankalmoigne shall be subject to no other or greater services than it was before. [*605] *CH AFTER III. COPYHOLD, AND OTHER LIKE TENURES. Sect. I. § 764. Common Copvholds. Sect. II. § 919. Privileged Copyholds. § 763. There are three kinds of tenure of lands still existing, being ex- cepted from the 12 C. 2, c. 24, which, from the nature of the services to be performed, were considered of base tenure, and still retain many vestiges of their original ; these are tenure by copy of court-roll, or copyholds derived from pure villenage, customary freehold, and tenure in an ancient demesne, which two are species of privileged villenage. (w) Id. 95. (i) Id. 94. (y) Uarg. Co. Litt. 91, a., n. (6), (z) 1 Inst. 95, b. (a) Litt., sect. 136 ; 1 Inst. 96, a. COMMON COPYHOLDS. 416 SECTION I. COMMON COPYHOLDS. 764. This branch of the subject comprehends the following particulars entitled to notice : — 1. What is a copyhold, and the requisites thereto. 2. Incidents to copyholds. 4. Demise of copyholds. > 4. Rights and interests of lord and tenant. 5. Estates in copyholds. *6. Alienation of copyholds. 7. Extinguishment of copyhold tenure. 8. Injuries in respect of copyhold lands, and their remedies. (a) [*606] I. CWhat in a ©opwliolty, avcn the 2Kc()[Ufsites tliertto. § 765. Definition of a Copyhold. Wliat necessary to constitute a Manor. 766. Copyhold not grantable in this Day. 767. Remains Copyhold after Severance, when. 768. Copyhold must be at all Times de- misable. § 768. Though it may not have been always demised. In case of Escheat. 769. Rights and Liabilities of Copyholder regulated by Custom. What Customs shall be deemed rea- sonable. § 765. A copyhold is where a man is seised of a manor, in which there is a custom that has existed time out of mind, that certain tenants within the same have used to hold lands and tenements at the will of the lord, accord- ing to the custom of the manor, and they are called tenants by copy of court- roll, because they have no other evidence concerning their tenements than the copies of the court-roll. To constitute a copyhold four things are essential, viz. — 1. To be time out of mind ; 2. To be parcel of a manor ; 3. Demisability ; and 4. Custom. 1. To be Time out of Mnd. 766. A copyhold ought to be time out of mind, for it cannot begin at this day ; therefore, if the lord grants land by copy, what has not been granted before, it is no copyhold, (6) though it continues in grant for any number of *years short of fifty, (c) and held, that the lord, though he afterwards p-j(/,r>~-, granted it for a further term of years, might, nevertheless, enter as ^ J {a) Bract., 1. 2, c. 8, fol. 26 ; Calth. on Copyh. 51, 54 ; and sec Reay v. Huntington, 4 East, 276. (/;) Kempe and Carter's case, 1 Leon. 56. (c) Taverner and Cromwell's case, 3 Leon. 107. 416 crabb's law of real property. upon a tenant at will ;(fZ) but a continuance in grant for upwards of fifty years without interruption was held to fix a customary interest. (rf) 2. To he Parcel of a Manor. 767. A copyhold ought to be parcel of a manor, or within a manor,(e) but it is not necessary that it continue parcel, for if the lord grants the inheritance of all the copyholds within the manor, whereby they are severed from the manor, yet the copyholds remain •,[f\ so, if the lord grants the in- heritance, it remains copyhold, and shall pay rents, heriots, and other ser- vices to the feoffee, and shall be subject to forfeiture for alienation, &c., as before ; but suit of court and fine upon alienation are gone, and if such copyholder will alien, there is no means but by a decree in Chancery.(g-) 3. Demisability. 768. So, a copyhold ought to be at all times demised or demisable, (/«) and it must have been so time out of mind ;(i) and it cannot be created by Opera- tion of law, and therefore, where wastes are severed from the manor, by a grant of the latter with exception of the former, the copyhold is become freehold, though the copyholders continue to have a right of common in the waste by immemorial custom, and the land will be freehold, and not continue copyhold, (t) But it is sufficient if it be demisable, though it have not alwa)''s been de- mised ;(A:) therefore, if the lord holds a copyhold, which escheats to him, in his r*finsl ^^^"^^ ^^^ many years, he *may afterwards demise it by copy ;(/) so, L -^ if it comes into his hands by any other means, (A and his heir or assignee may afterwards regrant it ;(A so, if a copyholder takes a lease or other estate of the manor, or of his copyhold, whereby his copyhold is destroyed, yet the land may afterwards be granted by copy, for it was always demisable ;(m) so, if a lord after a copyhold escheats, demises the manor and the escheated tenements by express word, yet it may afterwards be granted by copy, for it was always demisable ;(«) for the demise of the manor includes that copyhold as parcel of the demesnes, and the naming of it signifies nothing ;(n) but if the lord leaves such escheated copyhold for life or years, or conveys it for any other estate except at will, it cannot afterwards be granted by copy, for it was not always demisable ;(o) so, if he make a feoffinent, and afterwards enters for a condition broken ;(/;) so, if the queen, being lady, by letters-patent grants an escheated copyhold, &c., not knowing of it, it shall be the same, though she was deceived •,{q\ so, if the Jand is extended upon a statute or recognizance acknowledged by the lord, or the wife of the lord has the land assigned to her for her dower, the land (J) Id. 108. (p) 1 Inst. 58, b. i f) Melwich's case, 4 Co. 26 b ; S. C. nom. Mclvvich v. Lutlicr, l^Cro. El. 102. Ig) Copyhold cases, Ca. 10 ; 4 Co. 25 a. (A) 1 Inst. 58, b. (i) Revcll V. Joddrcll, 2 T. R. 415. ik) 1 Inst. 58, b; French's case, 4 Co. 31. (/) 1 Inst. 58, b. ; French's case, 4 Co. 31. (m) French's case, sup. ; Sav. 70, pi. 145. (n) Lee v. Boothby, Cro. Car. 521. (o) French's case, 4 Co. 31, a ; Lee v. Bootliby, sup. (b) French's case, sup. (j) W. iQ. 449 COMMON COPYHOLDS. 417 can never after be granted by copy ',{q) for although these impediments are by acts in law, yet, being lawful interruptions, the land cannot be granted any more by copy ;(»•) sed secus if by a wrongful act it has ceased to be demisable, for when such act is avoided the land may be re-granted by copy,(r) as if a copyhold has been recovered by false verdict, or an erro- neous judgment ;(r) so, if a husband, seised of a manor in right of his wife, grants by indenture an escheated copyhold, &c., the wife after, his death may regrant it by copy ;(s) so, the same law is, if tenant for life lets a copy- hold, parcel of a manor, *and dies, it shall not destroy the custom r-#f.Qoi as to him in reversion ;(^) see also further, post, §§ 839 et seq. >- 4. Custom. 769. Custom has been said to be the life and soul of copyhold tenure, (w) for what a copyholder may and ought to do, or not to do, the custom of the manor directs ;(«) for although a copyholder is called a tenant at will, yet he is so secundum consttetudinem manerii, and it is held that these words were not to bound the lord's pleasure in the determination of his will, but meant only, that the tenant, as long as he continued tenant, Avas to hold the land under those terms and conditions which the custom had established. (a^) Customs, so far as they relate to copyholds, are either general or parti- cular : general customs extend to all kinds of manors, they are the lex loci, of which the courts take notice ;(?/) but particular customs, which are pecu- liar to some manors only, must be specially pleaded, and will be construed strictly. A custom must be immemorial,(z) therefore a privilege attached to an ancient messuage cannot be claimed in respect of a tenement recently built ;(a) so, it must be reasonable, and if not contrary to reason maybe allowed ;(i) so, it is sufficient to show that it is reasonable in its commence- ment, and It need not be intended to have a lawful commencement by grant, &c.;(c) see further as to custom and prescription, post, Title to Things Real. A custom may be reasonable, though it be contrary to a rule or maxim of law, as the custom of gavelkind or Borough-English, (see ante, §§ 749. 753 et seq.) So, a custom may be reasonable, though there be a general provi- sion by statute to the contrary, if the custom is not expressly *taken -. away, as a custom that a tenant within the Cinque Ports shall not L J be in ward ;((^/) so, a custom shall be reasonable, though the right of another be restrained, as a custom that all the inhabitants of a vill shall grind all the corn they use at the lord's mill;(e) but a custom for inhabitants to grind all their grain whatsoever by them spent or sold was held to be void ;(/) see (9) W. Jo. 449. (r) Frcncli's case, sup. (s) Conesbie v. Husky, Cro. El. 459. (<) Conesbie v. Rusky, Cro. El. 459 ; see also 2 Roll. Abr. 271. (u) Browne's case, 4 Co. 21. (») 1 Inst. 63, a. (x) 1 Str. 452. (y) Dav. 31 b; Salk. 184. (z) Co. Cop., s. 33 ; Jackman v. Hoddesdon, 1 Cro. El. 352. (a) Dunster v. Tresider, 5 T. R. 2. (6) 1 Inst. 62, a. (c) Gateward's case, 6 Co, 60 b. (d) Dy. 288, 289 ; Palm. 543. (e) 1 Roll. Abr. 559. (/) Harbyn v. Greene, Hob. 180 ; see also Coryton v. Litheby, 2 Saund. 112 ; Chapman T. Flexman, 2 Vent. 288; Ld. Uibridge v. Staveland, 1 Vez. 56. 418 crabb's law of real property. further as to customs, post, Title to Things Real ; and as to the statutory provisions respecting copyholds, see Dig. P. i. ii. tit. Copyholds. II. Uncttftnts to ©o^jsiioltr STenurr,^ The fruits and appendages of copyhold tenure, which are all reserved by the 12 C. 2, are fealty and services, fines, reliefs and heriots, wardship and escheats. I. JfcaltB anlr Scrbfccs. § 770. What Fealty was and is. 771. By whom Suit of Court may be done. 772. Suit of Court may be done by Attor- ney, when. Suit by Women. Suit by Corporations. § 772. Suit by Joint-tenants and Copar- ceners. 773. Different Kinds 6f Rent. 774. Loss of Rent. 775. Apportionment of Rent. 776. Recovery of Rent by Distress. Time no Bar to a Distress, when. § 770. Fealty, which was common to every species of tenure, except frankahnoigne, signifies the oath which was administered to every tenant of fidelity to the lord, and to do suit at his court ;(g-) the neglect of it might be r*fiii'l distrained for,(/t) *which was formerly much insisted on,(i) and i- -^ could not be done by attorney, (J) nor by an infant in person, (yt) but is now usually respited by a small payment, and entered as respited, (/) and equity has in some instances relieved against the consequences of such neglect, (m) The word "service," in its largest sense, comprehends not only fealty but also heriots and reliefs, &c., but in a restricted sense is confined to suit of court and certain rents. 1. Suit at Court. 771. As to suit of court, every copyholder was and still is bound to attend the lord's court, and to perform the duties of a homager, and it seems that the lord may hold a court as frequently as he pleases, if custom has not fixed the periods ;(n) and if a copyholder resident within the manor does not ap- pear nor essoign, after a general notice affixed on the church door, he may be amerced.(o) (^) Co. Cop., ss. 19 et seq. (A) Crawley v. Kingsmill, Noy, 24. (») 1 Inst. [)2. ( j) Id. 93, (A) Combe's case, 9 Co. 76 a ; Floyer v, Hedgingham, 2 Clian. Rep, 56. (0 Harg. Co. Litt. 68, b, n. (5). (m) Cox V. Higford, 2 Vern. 664 ; citing Cudmore v. Raven, lb,, cited Free, in Chanc, 574, nom. Edmore and Craven. (n) Co. Cop., s. 31 ; 2 Watk. on Cop, 19, (o) Belfield v. Adams, 3 Bulstr. 80 ; S, C. nora. Soutlicot v. Adams, 1 Roll. Rep. 256. COMMON COPYHOLDS. 419 772. Suit of court by freehold tenants may be done by attorney, but the tenant cannot make an attorney by parol ;(;^) copyholders cannot make suit by another, as they are not within the 20 H. 3, c. I0,{q) but if a copyholder be dwelling at a distance from the manor, a general notice of the holding the court is not sufficient to make his absence a wilful refusal or " cause of forfeiture," ((/) unless he is living at an inconvenient distance, in which case notice to his bailiff is sufficient ;(g) so, illness, or the discharge of a great office, are good excuses of absence. ((jf) *Suit may be done by a feme sole or a widow in a customary pj^p.n-i court, but a woman cannot sit on the homage to try issues in a court- L. -I baron at common law, where the suitors are judges ;(/•) so, a widow cannot make-presentment unless the husband died without an heir.(s) A corporation cannot do suit, because they can only do it by attorney, and whether a corporation can hold lands by copy of court roll is not decided. (/) Joint-tenants and coparceners are but as one tenant to the lord, and shall therefore do but one suit,(?/) except where the lands are held of the queen, (y) but tenants in common take several estates, and must severally do suit.(z^?) 2. Bents. 773. Rents reserved by the lord are called, generally, rents of assize, because they were usually assized or reduced to a certainty, and are thus distinguished from the rents for life, years, or at will, Avhich are variable and uncertain ;(a;) and these were reserved equally on the grants of freehold as on those of copyhold lands ;(.r) but those paid by freeholders are called " chief rents;" if the rent reserved was in lieu of all services, it was on that account called a quit rent,(x) and being usually paid in silver was called " white rent," in distinction from that paid in specie, as pepper, cummin, &c., which was called "black rent," see further, ante, § 154. 774. A rent originally reserved in respect of copyhold property may be lost by suffering it to be received for many years by the lord of another manor, as may happen where two manors become united in one person, and afterwards get again into the hands of different owners ; thus, p^pio-i *where the lord of the manor of D., which he purchased from B., L -' who was formerly owner of both T. and D., brought his bill to compel pay- ment of rent out of a copyhold held of the manor of I., though he had no other evidence to show for it but that it had been paid to him for twenty years, the Court decreed to him the arrears, Steward v. Bridger;(2/) and it was there said, that in case of encroachment of rent, if the tenant make but one payment of more than is due, he shall never go back from it. (2) 775. The doctrine of apportionment of rents is, as a rule, applicable to (p) Kitch. 145. ((/) Sir John Braunche's case, 1 Leon. 104. (r) 2 Inst. 119; Gilb. Ten. by Watk. 357, 475, (N. 10, 168). (s) F. N. B. 159 ; 2 Walk. Cop. 69, 70 ; 1 Scriv. Cop. 432. it) Co. Cop., s. 19 ; 1 Ca. and Opin. 186 ; Duke Char. Us. 24, by Bridgman, 135. (.u) Kitcli. 108. (r) F. N. B. 159, L. («j) Bruerton's case, 6 Co, 1. (x) 2 Inst. 19. (y) 2 Vera. 516. (z) Steward v. Bridger, 2 Vern. 516. 420 crabb's law of real property. copyholds ; therefore, a lord seised in fee may, on a re-grant of copyholds, apportion the rent, in the same manner as in the case of freehold lands held by an ancient quit rent ;(a) the effect of such apportionment being a release and extinguishment of the residue of the rent as to the particular lands re- granted ;(6) but see as to cases where the rents can or cannot be apportioned in a re-grant of escheated copyholds, Co. Cop., s. 41, tr. 91. 776. The lord may distrain for rents of assize of common right ;(c) and ,by the 4 G. 2, c. 28, s. 5, all persons have the like remedy by distress for rents of assize, chief rents, and rents seek, as in case of rents reserved upon lease, and the lord may distrain the copyholder, or he may seize the land.(f?) So, the lord of a manor may avow for a rent issuing out of a copyhold, for rent is a duty at the common law,(e) In Eldridge v. Knott, (/) it was held, that no length of time within the period limited by the 32 H. 8, c. 2, (one of the old Statutes of Limitations, see Dig. P. iii. tit. Limitations,) for the recovery of customarj'- rents, is a bar to a distress for quit rents ; and mere length of time, unaccompanied r*Ria.l ^^^•'■^ ^"y circumstances, is not of itself a sufficient ground to pre- L J sume a release or extinguishment of such a rent ; and in that case it was added, that a presumption from mere length of time in support of a right, was very different from a presumption to defeat a right. (^) Copyholds not being within the 32 H, 8, c. 37, the arrears of rent for copyhold tenements cannot be recovered by executors in an action, or by distress under the provisions of that act. (A) As to remedies in equity for lords of manors, see post, § 903. (a) Kitch. 170. (6) Reay v. Huntin^rton, 4 East, 271. (c) Litt., sect. 213 ; 1 Inst. 14-3, a. ((/) Rivet v. Dowe, Nov, 135. (c) Lauffhter v. Humplirev, Cro. El. 524. (/) Cowp. 214." (g) Eldridge v. Knott, Cowp. 214. (/i) Ognel's case, 4 Co. 50 ; Appleton v. Doily, Yelv. 135 ; S. C. nom. Appleton v. Baily, 1 Brownl. 102 ; Sands v. Hempston, 2 Leon." 109 ; S. C. nom. Execulors of Sir Wm Cordel, Id. 252 ; S. C. nom. Earl of Westmoreland's case, 3 Leon. 59, COMMON COPYHOLDS. 421 II. j^fiirs. § 778. Fine due on Change of Tenant or § 786. Lord. 787. On Change of Tenant. 788. On Change of Lord. 789. 779. Persons from ^hom due. From the Heir. 790. From Devisee of Heir. 780. Fine due from .Surrenderee. 791. from Vendee in case of Trust for Sale. 781. Fine due from Remainderman. 792. 782. Persons having legal or equitable Estate, when not liable to pay Fine. 793, 783. Executors, &c., liable, or otherwise. Tenant in Dower or by Curtesy. 794. 784. Joint-tenants. 795. Coparceners. 796. 765. Tenants in Common to pay distinct 797. Fines. 798. Distinct Fines payable on several 799. Tenements. 800. 786. Commissioners of Bankrupt. 801. Means of recovering In the case of an Extent, &c. General and special Occupancy. Fine certain. Fine uncertain. Fine must be reasonable. What is a reasonable Fine, or other- wise. Amount of Fine in case of Tenants for Life, &c. Fines on Renewal of Lives. Fine to be assessed by Lord or Steward. By the Homage, Several Fines in case of several Services. Place of Assessment. Entry of Assessment on the Rolls. Demand of the Fine. Tender of the Fine. Payment of Fine certain. Payment of Fine uncertain. Payable by the Purchaser. by Remainder-man. a Fine. *§ 777. Fines payable to the lord were a burdensome incident to ^ t^-, knight's service, which, on the abolition of this last tenure, were Li expressly reserved, by the 12 C. 2, to the copyhold tenure. On this subject the following points are entitled to notice, that is — 1. When and from whom the fine i»due. 2. Gluantity of the fine. 3. Assessment of the fine. 4. Demand, tender, or payment of the fine. 5. Recovery of the fine. 1. TJTien and from whom the Fine is due. 778, A fine may be due either on the change of the tenant or of the lord. When the fine is due on the change of the tenant, it is immaterial whether it is b_v the act of God, as the death of the tenant, or bj"" the act of the party, as by his alienation, and in this case it is said to be due without any special custom, being almost an incident to copyhold tenure, (i) for this fine, when due on the death of the tenant, was of the nature of the primer seisin of knight's service before its abolition ;(^) and the fine on the alienation of the tenant was of precisely the same nature as the feudal burden which tenants in chivalry had been subject to before the 12 C, 2,(/) The fine due on change of the lord can only be where the change happens by the act of God, and not b}' the act of the party, and even in {i) Grant v. Astle, 2 Douel. 724, n. (i) 2 Comm. 98. (0 See Kitch. 103 ; Gilbl Ten. 292 ; Watk. on Cop. 2S6. 423 CRAB b' 3 LAW OF REAL PROPERTY. the first case it will not be due without a special custom ;(m) in the latter case, a custom to have a fine on any change of the lord of the manor, by- alienation or demise, is against law, for by this means the tenant might be oppressed by a multitude of fines.(n) But where, by the custom of a manor, any fine is due on the death of the lord, held, that the customary general fine or gressum, as distinguished from the fines payable on the ^ *death or alienation of the tenant, which are called "dropping ^ -J fines," was not restricted to those claiming by descent, and there- fore, that the husband, tenant for life under a marriage settlement was enti- tled to a fine upon the death of his wife, the last admitting lady.(n) 779. As to the persons from whom due, in the first place, if the copy- holder dies, a fine is due to the lord, on the admittance of the heir, and that, it should seem, without any special custom, see ante, § 778 ; and if the heir die before admittance, this shall not prejudice the lord as to his fine ; there- fore, the heir or devisee of such heir cannot compel admittance except upon the payment of a double fine ;(o) so, in the case of a surrender by heir before admittance, see infra, § 780. 780. As a rule, if a copyholder surrender, a fine is due upon the admit- tance of the surrenderee ;{p) but if a copyholder in fee surrenders to the use of one for life, and the tenant for life dies, he may enter without any new admittance or paying any fine, for he has his old estate ;(o) so, if an heir of a copyholder surrender before admittance, yet he shall not prejudice the lord as to the fine due to him (see ante, § 779) upon the descent ;(»•) so, if a surrender be on condition, by way of mortgage, the mortgagor, on pay- ing the money before the condition broken, may re-enter without any new admittance, or paying a fine, for he is in of his old estate ;(s) so, if he sur- render, reserving rent, with power of re-entry, if rent in arrear, no fine will be payable on such re-entry ;(s) but if the day appointed for the payment of the money be past, it seems that he must be re-admitted, having only an equity of redemption ;(/) so, if after condition broken, the lord insists on r-^R\<-r-\ ^^^ mortgagee ^coming in and paying the fine, equity will not L -• relieve the latter.(2<) If copyholder surrenders to the use of his will and directs two trustees to make sale of his copyhold, and to apply the money to certain purposes, they may sell without being admitted, and the lord shall admit the vendee and have but one fine.(y) 781. If a copyholder in fee surrender to one for life, remainder to another for life, remainder to another in fee, by this but one fine is due, except by (m) 2 Dougl. 724, (n) 1 Inst. 59, b. (n) Somerset (Duke) v. France, 1 Stra. 651; S. C, Fortes. 41. (o) Morse v. Faulkner, 1 Anst. 13. (p) Co. Co;>., s. 56 ; 1 Inst. 59, b. (7) Prodger's case, 9 Co. 107. (r) Browne's case, 4 Co. 22, b. (s) Gilb. Ten. 275. (t) Id. 276 ; and see Fawcctt v. Lowthcr, 2 Vcz. 302. (u) Tredway v. Fotherly, 2 Vern. 367. (t)) Holder V. Preston, 2 VVils. 400. COMMON COPYHOLDS. 423 special custom •,{tv) for the admittance of the particular estate is the admit- tance of him in remainder ;(.t) so, when the particular tenant and the remainder-man join in a surrender, as their interests form but one estate, one fine only is due from the surrenderee ;{y\ but if the person to whom the remainder is limited surrender his interest to another, a fine will be due on the admittance of such surrenderee ;(z) so, likewise, on admittance of the heir of the remainder-man ;(z) and it is said, that the lord may assess one fine for the particular estate, and another for the remainder, Batmore v. Graves ;(«) and in the same case it was added, " If a fine be assessed for the whole, there is an end of the business ; but if a fine be assessed for a parti- cular estate only, the lord ought to have anotlier."(6) 782. Persons having an equitable estate only, as cestui que use or cestui que trust, need not be admitted, and, consequently, cannot be called upon to pay a fine, for as to the *first, the Statute of Uses does not extend to p^pio-i copyholds, (c) and as to the second, he in whom the legal estate is L -' vested, that is, the trustee, is properly the tenant of the manor ;(rf) therefore, if a copyhold be devised to A. for the use of B., A., and not B., is the per- son to be admitted and pay the fine ;(e) so, on the same principle, if a copy- holder covenant to surrender his land to A., and, before the surrender made, A. assign his right to B., the fine will be payable on B.'s admittance, and not on the covenant to surrender, for this transferred no legal, only gave him an equitable interest in the land ;(»•) so, no fine is payable on the assign- ment, grant, or devise, of an equity of redemption, for on the breach of the proviso for redemption the mortgagee becomes the tenant, and is bound to pay the fine ;{h\ so, neither can a fine be demanded of one having a mere authority, without any legal interest in the copyhold, as in the case of trus- tees with a power to sell, see ante, § 779 ; so, a guardian of an infant having merely a right to the pernancy of the profits, shall pay no fine ;(i) so, if a copyholder be disseised, and enter upon the disseisor, or recover against him by plaint, he will be in of his old estate, and, consequently, no fine is due ;(j) or if a rightful owner of a copyhold release to one that is in by wrong, no fee will be due, he being already tenant. (A:) 783. It was formerly holden that the executor of a copyholder for years should have the term without any new admittance ;(/) it is however now settled that, whenever a term for years is limited on surrender, or created by (w) Finch's case, 4 Go. 22 ; Barnes v. Corke, .3 Lev. 308. (x) lb. ; see also Blackburn v. Graves, 1 Mod. 103. 120 ; S. C, 3 Keb. 263. 329 ; S. C, 1 Vent. 260 ; S. C, 2 Lev. 107 ; S. C, 2 Danv. 185. iy) Kitcli. 242 ; Co. Cop., s. 26. tr. 130. {z) 1 Burr. 213 ; Gilb. Ten. 417, Walk, ed., n. (77.) (a) 1 Vent. 260. {!)) lb. ; and see 1 Mod. 120 ; 1 Burr. 212 ; Gilb. Ten. 163, n. (d.-) Also, as to contri- bution between the particular estate and the remainder-man, 1 Walk. Cop. 311 ; 1 Scriv. Cop. 406. (c) Cro. Car. 44 ; 2 Vez. 257. (d) Gilb. Ten. 157 ; 2 Comm. 331 ; 1 Watk. Cop. 289 et seq. (e) Bath (Earl) v. Abney, 1 Burr. 206 ; see also Rivet's case, Moor, 890 ; Trinity Coll. V. Browne, 1 Vern. 441 ; Allen v. Poulton, 1 Vez. 121. (§■) R. V. Hendon (Lord of the Manor,) 2 T. R, 484, (A) 2 Vern. 367 ; Gilb. Ten. 276. («) Co. Cop. s. 56. ( j) Co. Cop., s. 56, tr. 129 ; 4 Co. 25. (i) 4 Co. 25 b ; 1 Inst. 59, b (0 Haunchet's case, Dy. 251 ; 3 Leon. 9 ; Winch. 3 ; Gilb. Ten. 289. 424 crabb's law of real property. devise, the termor will be tenant to the lord, and his executors on his ^ *death must be admitted and pay a fine, Bath (Earl) v. Abney ;(m) L -^ in that case it was insisted that the executors took no new estate, and, as new tenants only, they were not liable to pay any fine, but the judge's certificate into Chancery decided otherwise. Tenant in dower, or by the curtesy, where the custom allows of such estates, shall, it is said, pay a fine ;(n) but see 1 Walk. Cop. 300, where this is disputed. 784. Joint-tenants are seised per mie ef per tout, therefore, if one die, the survivor shall have all without admittance or paying a fine ; for when one joint-tenant dies, the other takes his share, and continues in the original admittance ;(o) so, on an original surrender to two jointly, but one fine is due;(p) and the same law applies to coparceners, who as being one heir are- entitled to admittance on the payment of one ;{q) so, if joint-tenants and coparceners join in a surrender, only one fine is due on the admittance of the surrenderee :(r) but as the customary heir or heirs of each coparcener must be admitted, the lord is of course entitled to fines on such respective admissions. 785. Tenants in common are to be admitted severally, and must there- fore pay several fines,(5) although Lord Coke in his Copyholder, s. 56, and also Kitchen on Courts, 242, lay down a different ; but this is supposed in Attree v. Scott(/) to be a misprint, see also Plowd. 140; Perk., s. 107 ; so, the customary heirs of each must be admitted and pay several fines ;(u) but -, it is now settled, that if the several *undivided shares of copyhold L -^ heretofore belonsfino- to tenants in common become united in one person, they form one entire estate, and one fine only would become due on the admission of the surrenderee. Garland v. Jekyll,(u) Holloway v. Berke- ley ,(.r) overruling Attree v. Scott, (j/) where it was held, that the multipli- cation of fines and services should continue notwithstanding such union. On the same principle as governs tenants in common, it has been held, that one fine cannot be assessed on the admission to several copyhold tene- ments. (^) 786. When copyholds prior to the 6G. 4, c. 16, were included in the bar- gain and sale from the commissioners to the assignees of a bankrupt, the admittance of the assignees was necessary, and a fine due in consequence thereof ; but when the commissioners conveyed the copyholds immediately to a purchaser, a fine became due from him only. (a) By the 1 & 2 W. 4, (m) 1 Burr. 20G. (n) Co. Cop., s. 56, tr. 128 ; Gilb. Ten. 223, (o) Co. Cop., s. 35, tr. 82. (p) Id. s. 56, tr. 130. (q) R. V. Bonsall (Manor, &c.,) 3 B. & C. 173 ;> S. C, 4 D. &. R. 825. (r) Gilb. Ten. 73, 330, n. ( /") ; see also Co. Cop., s. 56 ; Calth. Read. 61. (s) Fisher v. Wigg, 1 Ld. Raym. 631 ; S. C, 1 P. Wms. 21 ; S. C. 1 Salk. 391 ; Attree V. Scott, 6 East, 484 ; S. C, 3 Smith, 458. (0 Sup. (m) Br. Abr. tit. Feoffm. de Terres, pi. 45. (r) 2 Binor. 273.'' {X) 6 B. &C. 2 r S. C, 9 D. & R. 73. (y) 6 East, 484 ; S. C, 2 Smith, 458. iz) Grant v. Astle, 2 Dougl. T22. (a) Drury v. 3Iann, 1 Atk. 96. »Eng. Com. Law Reps. s. 47. i-Id. is. 412. »Id. xiii. 97. COMMON COPYHOLDS. 425 c. 56, the copyhold estates of a bankrupt become vested in the assignees, without the necessity of any admittance, and the fine in consequence becomes payable by the purchaser. If there be a custom for a copyholder's lands to, be extended, the extendor upon his admittance shall pay the fine. (6) 787. The principle of general occupancy is not applicable to copyholds, the freehold never being out of the lord ;(c) but my Lord Coke says, " If a copyhold be granted durante vita, and the grantee dieth living cestui que vie, and a stranger entereth as a general occupant, he shall be admitted and pay a fine." In the case of special occupancy, which apphes to copyholds without any custom in favour or it((/) a fine *is due upon the admis- pvggn sion of the heir or other person, who is special occupant. (e) L 2. Quantity of the Fine. 788. Fines payable on the change of the copyholder may be certain and defined, or arbitrary at the will of the lord.(/) The fine is said to be cer- tain, when the sum payable is fixed and ascertained by immemorial usage, in which case the lord is tied down by the custom and cannot exceed it ;(g-) but the law will presume the fine to be uncertain until the contrary is proved, and this must be decided by the rolls of the court, in which the most ancient series of entries will be deemed true evidence of the fine, even though contradicted by a series of entries for a period of a hundred years past or more, indicating a different sort of fine ;(/ij) and a few instances of uncertain fines will be considered of no weight either way ;(i) a fine certain may, however, not always be a gross sum, as five or ten pounds, but it may depend upon the value of the land, as to pay for the fine such sum as the land may be worth by the year at the time of admittance, which being easily ascertained by the jury, is considered to be equally certain as a sum in gross ',{k) and a custom to have a year's value, generally, for a fine, has been held to be good. (A;) 789. A fine is said to be uncertain and arbitrary when it depends upon the will and pleasure of the lord, or other person having a right to assess it. But though it is uncertain, it is not altogether arbitrary, for it ought to be reasonable, otherwise the copyholder is not compellable to pay it ;(/) and *whether a fine be reasonable or not shall be determined by the jus- (-*g22l tices upon the circumstances appearing in the case \[m) and, there- L (6) Co. Cop., S. 56. » c r^ ■, a ^y (c) Ven V. Howell, 1 Roll. Abr. 511 ; Smartle v. Penhallow, 6 Mod. 63 ; S. C, 1 balk. 183 ; Zouch V. Forse, 7 East, 166. ^.„ ^ „_ (d) Lenipri^re v. Martin, 2 Bl. 1148. (e~) Co. Cop., s. 56, tr. 128 ; Gilb. Ten. 327. (/) 2 Comm. 98. {g) Allen v. Abraham, 2 Bulstr. 32. (A) lb.; see also Lord Gerard's case, Godb. 265 ; 1 Watk. Cop. 306. (i) Litt. Rep. 252. ^ „ ^ ^ , m ik) Perkins V. Titus, Skinn. 247 ; S. C, Carth. 12 ; S. C, 3 Lev. 249 ; S. C. Comb. 43 ; S. C, 3 Mod. 132 ; S. C, 2 Show. 507 ; Ca. 463 ; S. C, 1 Frcem. 494 ; Ca. 669. (l) 1 Inst. 59 ; Hubbard v. Hammond, 4 Co. 27 ; S. C. nom. Dalton v. Hamond, Cro. El. 779 ; S. C , Moor, 662 ; S. C, 1 Roll. Abr. 507 ; see also Co. Cop. 1 60 ; Gilb. Ten. 219 ; 1 Mod. 120 ; 1 P. Wms. 63, 66 ; 2 Dougl. 729. Cfrt) Hubbard v. Hammond, 4 Co. 27 ; Moor, 623. 426 crabb's law of real property. > fore, if an action be brought against the tenant by the lord, it shall be refer- red to the court upon demurrer ;(w) or the defendant may plead not guilty, and upon proof of the land and other evidence, the Court will decide ;(o) but if a copyholder prays a mitigation, it does not conclude him, but he may afterwards insist on the unreasonableness of the fine ;{p) the copyholder is however bound to show, that the fine is unreasonable. (5-) 790. As a rule, two years' improved value is held to be a reasonable fine on admission to copyholds of inheritance, or for lives when renewable, Hal- ton V. Hassel;(r) see also Willowes' case,(s) where two years' value was deemed unreasonable, Hubbard v. Hammond, (/) Jackman v. Hoddesdon,(z<) Wharton v. King;(a;) deducting quit rents, but not land-tax. Grant v. Astle ;(j/) see also Allen v. Abraham, (z) Dow v. Goulding,(o) Stower v. Smith, (6) Accledon v. Kinnesley,((^') Lake v. Jetherell,(i) and other cases ; Morgan v. Scudamore,(c) Middleton v. Jackson ;{(l) where a year and a half's improved rent has been held to be the maximum in common cases. On alienation, it is said, that by custom the lord shall not be restricted to two years' value, for he may take four, five, or even seven years' value ;(e) so, where a fine is payable by custom on the first purchase only, the lord is ^ -, not restricted as to the amount of the fine;(e) so, not oti the *grant C' -J of lands coming into the lord's hands by escheat, for the re-grant being voluntary on his own part, he may fix his own terms, and the person soliciting the grant may accept or reject them as he pleases ;(/) so, not to copyholds for lives, &c., see 1 Watk. Cop. 308. 791. As to the amount of fine where there is an admission of tenants for life, and persons in remainder, &c., at the same time, the tenant for life is to pay one whole fine the same as tenant in fee, and the person in remainder is usually required to pay half the amount of the fine payable by the tenant for life \{g) but where there are more lives than one to take in succession, it is said, in Bath (Earl) v, Abney,(/i) " The fine for two lives is the sesqui of that taken for one, and the fine for three is the sesqui of that taken for two, by the usage of the manor," and this is understood to signify that <« The fine for the third life is the half of that taken for the se.cond life ;"(i) so, the usage in most manors on a renewal of copyholds for three lives, is to take for the first life a year and a half's value, for the second life half as much as the fine for the first, and for the third life half as much as the fine for the second^;(A;) but in Wilson v. Hoare(/) it has been held, that the proper mode of assessing a fine upon the admission of joint-tenants to a copyhold of (n) Co. Ent. 647. (0) Hubbard v. Hammond, sup. ; Denny v. Leman, Hob. 135. (p) 1 Roll. Abr. 507. (q) Hob. 135. (r) 2 Str. 1042. (s) 13 Co. 1. (0 Sup, (w) Cro. El. 351 ; S. C, 1 Roll. Rep. 75 ; 1 Inst. 60. {x) 3 Anst. 673 ; S. C, 3 Swanst. 666. (y) 2 Dougl. 722. («) 2 Bulst. 32. (a) Cro. Car. 196. {h) Toth. 164. (c) 2 Chan. Rep. 134. (d) 1 Chan. Rep. 33. (e) R. V. Dillington, 1 Freem. 496 ; S. C. nom. R. v. Dilliston, 1 Show. 31 ; 1 Salk. 386 ; 3 Mod. 221. (/) 13 Co. 3 ; Hetl. 6 ; 1 Watk. Cop. 308. ig) 1 Watk. Cop. 311. (/() 1 Burr. 267, 207, marg. (i) Per Ld. Tenterden, C. J., Wilson v. Hoare, 2 B. & Ad. 350.» {k) 1 Watk. Cop. sup. ; 1 Scriv. Cop. 387, 3d ed. (I) Sup. •Eng. Com. Law Reps. xxii. 95. COMMON COPYHOLDS. 437 inheritance was, to take two years's improved value for the first life, for the second life one-half the sum taken for the first, and for the third life one- half the sum taken for the second and so on. 3. Assessment of the Fine. 792. As to the assessment of the fine, it is necessary to consider by whom it may be made, manner and place of making and entry of the assess- ment. *It belongs of common right to the lord or his steward to assess r-^(.n4■^ the fine ;(?») but a custom that a copyholder for life in extremis L J may nominate a successor to have the copyhold, paying a reasonable fine, to be agreed upon with the lord, or if that fail, to be assessed by the homage, has been adjudged to be a good custom ;(n) so, to nominate one or two as successors, (o) 793. If a copyholder holds several copyholds by several services, there ought to be set upon every one a several fine ;(;;) and there is no distinc- tion in that respect between a customary heir and a surrenderee, nor is it material whether the admission be contained in one or several copies ;(5) and in Snag v. Fox(j*) it was held, that a surrender by a copyholder to par- ticular uses, under which his son should be admitted in tail, would operate as a severance of the estate from any other lands left to descend to such son, so as to entitle the lord to separate fines. One gross sum cannot be assessed on the admission to several copyhold tenements. Grant v. Astle ;(s) and in this case it was also held, that, being so stated in the declaration, it was error, and not cured by verdict. (<) 794. In one case it was held, that a fine might not only be assessed but might be made payable out of the manor ;(m) *but this, which was r-jc^op-T the case of a fine for license to alien, appears to be the only autho- L -^ rity for such a position. (u) 795. The entry of the assessment on the rolls is not necessary to entitle the lord to the fine, but a demand on behalf of the lord, it being a reasonable and legal fine, is sufficient ; (a?) but if an entry be made of an assessment, it must be of the sum actually assessed, without regard to any sum remitted by the lord; therefore, where the assessment was entered as of 100/., but (m) Lord Northwick v. Stanway, 6 East, 57 ; S, C. nom. Lord Northwick v. Stanton, 2 Smith, 226. (n) Yelmester Custom, cited Noy, 2. (o) Crabb v. Bales, Id. 3 ; S. C, come semble, nom. Crabb v. Bevis, 1 Roll. Abr. 48 ; see also Ford V. Hoskins, Cro. Jac. 368 ; 1 Freem. 494 ; Freeman v. Phillips, 4 M. & S. 486. (p) Hobart v. Hammond, 4 Co. 27 ; S. C. nom. Dalton v. Hammond, Moor, 622 ; S. C, Cro, El. 779. (5) Taverner and Cromwell, 4 Co. 27 a ; Hitch v. Wallis, cited 2 Dougl. 729 ; see also Co. Cop., s. 56, tr, 131 ; Gilb. Ten. 218 ; Whitfield v. Hmit, cited 2 Dougl. 727 b, n. ; Searle and Marsh, cited in Everest v. Glynn, 6 Taunt. 428 ;'' S. C, 2 Marsh. 84. (r) Palm, 342. (s) 2 Dougl. 721. it) Grant v. Astle, 2 Dougl. 721. («) Yaxley v. Rainer, 1 Ld. Raym. 44. (c) See 1 Watk. Cop. 317, 318; 1 Scriv. Cop. 418. (a:)_Lord Northwick v. Stanway, 6 East, 56 ; S. C, but not S. P., 3 B. & P. 346. ^Eng. Com. Law Reps. i. 437. 428 crabb'slaw of real propertv. that out of special favour the lord remitted 40/., and thereby reduced it to 60/., and the lord sued for the fine, and the jury finding the annual value of the premises 30/., gave a verdict for 60/., held, that the lord could not retain this verdict, but must be nonsuited, the Court being of opinion that 'the assessment, notwithstanding the remittitur was an assessment of 100/., and the latter part of the entry was nothing more than a remission of the pay- ment of part of that assessment ; and it was observed in this case that much mischief might arise to copyholders, if similar entries were permitted to be made upon the court rolls of manors. (x) 4. Demand, Tender, and Payment of the Fine. 796. After a regular assessment of the fine, the specified sum must be formally demanded by the lord or his steward ;(?/) and it must be made of the specific sum, and not of any larger amount, otherwise the lord cannot recover at law ',{z\ but if the lord demand more than he is entitled to, he may re-assess the fine, and make the demand de novo ; so, it must be de- manded of the person of the tenant. (a) By the 11 G. 4 & 1 W. 4, c. 65, re-enacting 9 G. 2, c. 29, the fine must be demanded of /ernes covert and infants, by the lord's bailiff or agent by note in writing, signed by the lord r*fi9R~! ^'^ ^'^ steward, and left with the infant or his guardian, *or with L -• the feme covert or her husband, or with the tenant or occupier of the copyhold. 797. Where the fine is certain, the heir ought to tender it on his prayer to be admitted ;(/>) and to save a forfeiture, it seems that the tender should be made at the day appointed by the lord for the payment of the fine assess- ed, and that a tender made at the time of the assessment is not suflicient ;(c) but the lord cannot refuse admittance because the fine is tendered to him, even when the fine is certain in amount.(f/) Should the fine be unreasonable, or if the copyholder has good cause for thinking it to be so, he may refuse to pay it, and it shall be no cause of for- feiture, (e) but he must tender what he conceives to be due.(/) 798. A fine certain ought to be paid immediately, but not until the tenant is actually admitted, for admittance is the cause of the fine, and, therefore, the lord cannot refuse admittance until the fine is paid ;(^) and if the heir choose to waive the possession, he shall pay no fine ;(/i) but if after admit- tance the tenant refuse to pay, the fine having been demanded, such refusal is a forfeiture, (i) see supra, § 796 ; and as to the provisions for the pay- (t) Lord Northwick v. Stanway, 6 East, 56 ; S. C, but not S. P., 3 B, &. P. 346. (y) Trotter v. Blake, 2 Mod. 229. (z) Titus v. Perkins, Skinn. 249. (fif) Denny v. Lennnan, Hob. 135. (6) Gardiner v. Norman, Cro. Jac. 617. (c) lb.; sed qufere, and see 1 Scriv. Cop. 419. {(1) Hobart V. Hammond, 4 Co. 28 ; S. C. nom. Dalton v. Hamond, Cro. El. 779 ; S. C, Moor, 623 ; Fish v. Rogers, 1 Roll. Abr. 506. (e) Hobart v. Hammond, sup. (/) Gardiner v. Norman, sup. ig) Hobart v. Hammond, sup.; Baddelcy v. Leppingwell, 3 Burr. 1544; Rex. V. Hen- don, (Manor, &c.) 2 T. R. 485. (A) 1 Sid. 98. (t) Hobart v. Hammond, sup. COMMON COPYHOLDS. 429 ment of fines in the case oi femes covert, infants, and lunatics, see 11 G. 4 & 1 W. 4, c. 65, Dig. P. ii. tit. Courts, (Equity.) 799. If the fine be uncertain, a copyholder is not bound to pay it imme- diately, for he cannot know how much it will be, and if the lord does not fix a time for payment, he shall have a convenient tirae.(^) A custom not to pay a fine till *of full age has been held to be a good custom ;(A so, ^ also, a custom for the lord to seize until the fine is paid.(m) L -^ In some manors it is customary not to take the fine until the succeeding general court, but it seems doubtful whether a lord or steward may refuse to accept a surrender from the person admitted tenant, or to admit the sur- renderee until the fine is paid.(?i) 800. The fine on admittance, and also the steward's fees on admittance, are paj^able by the purchaser ;(o) therefore, held, that a covenant to surren- der a copyhold to a purchaser, and to do all acts and deeds, &c., for the perfect surrendering and assuring premises at the costs and charges of the vendor, is not broken by non-payment of the admission fine, for the title is perfected by the admittance of the purchaser as tenant, the fine not being due until after admittance. (p) Where by the custom a remainder-man must be admitted and pay a fine, the fine is not payable until the death of the tenant for life ^{(A and he must come in within a reasonable time after the death, otherwise the lord maj'' seize quosque, &c. ;(?•) but very clear evidence is required to establish the lord's right to a full fine from a remainder-man and the Courts lean to the presumption that a fine paid by a remainder-man was an apportionment only of the full fine assessed on the admission of the tenant for hfe.(r) 5. Recovery of the Fine. 801. If the tenant (not being a feme covert, infant, or lunatic, see supra, § 798) do not come in to be admitted and pay his fine, after the usual pro- clamations, the lord may, in all cases, seize the land quosque, &c. ; see fur- ther as to *forfeiture of copyholds, post. So, if a copyholder refuse ^ payment of a fine, debt lies against him,(s') and see further as to in- ["""^^J juries and their remedies, post, under that' title. (k) Hobart v. Hammond, sup. ; Willowe's case, 13 Co. 2. (I) Champion and Atkinson, 3 Keb. 90. (m) Jackman v. Hoddesdon, Cro. El. 351. (n) 1 Scriv. Cop. 419 ; 3d ed., 800. (o) Drury v. Mann, 1 Atk. 95. (p) Graham v. Sime, 1 East, 632. Iq) Kitcli. 244 ; Fitch v. Hockley, 4 Co. 23 a. (r) Whitbread v. Jenny, 5 East, 531. (s) Grant V. Astle, 2 Dougl. 721. December, 1846. — 28 430 crabb'3 law of real property. ITT. Kflfcfs an^ ajrrfots. § S02. What is properly a Relief, or other wise. RccoTerv of a Relief. 803. Heriot distinsruished from RelieC 804. Dcfiiiition of Heriot Ser\ice. ■When due. 605. In case of a Lease. Not due before commencement ofi Lease or after Determination. 806. Recovery of Heroit Service by Sei- zure. 807. Recovery by Distress or Action. SOS. Wlien Heriot Service is Extinct, or otlierwisc. 809. What is Heriot Custom. Customary CompositicMi. Heriot due ou IXath of Tenant Heriot due on Death of Trustee. § 809. Corporation liable, when. Widow liable. SIO. Due in case of Alienation. 811. When not due. On Death of Stranger. 812. Not due on the Death of Joint-ten- ants. Or Coparceners. Or Tenant tor Life and Remainder- men. Or Tenants in Common. 813. Other Cases. 814. Loss of Heriot Custom. No Extinction of a Heriot Custom. 815. Recovery of a Heriot Custom. 816. Pleadinirs in Replevin for a Heriot Service. What Picas are bad- ^ 802. Relief was a feudal burden common to knight's service and socage tenure, which was payable by the heir, by way cf fine or composition with the lord for taking up the estate, which was lapsed or fallen in by the death of the last tenant.(/) The term is also sometimes applied to copyholds ;(u) but it is said not to be properly a relief, but an alienation fine ; and this may be either by tenure, by special reservation, or by custom. (j:) •The remedy for a reUef if it be by tenure is distress of common [*629J j.jgi^j.^y^ Y^^^^^ jf ^ be by custom, there can be no distress unless there be a special custom to warrant it ;(z) an action of debt, however, lies in such case.(r) 803. -A. heriot is a bunlen peculiar to this base tenure, and it is distin- jTuished from the relief with which it is frequently confounded in the books, m this respect, that the heriot \vas payable on the determination of the tenancy, but the relief on the accession of the heir.(a) The heriot is the best beast or other thing, due to the lord on the death of the tenant, and is distincruished into heriot service, that is, heriot by tenure and heriot custom, which differ from each other in the manner in which they become due, or are lost or recovered, and in other particulars. 1. Heriot Service. 804. The heriot service \\-as originally a reservation by the lord, arising from the tenure subsisting between him and the tenant, and lies in render. It is said to be due only upon the death of the tenant in fee simple ;(6) (t) 2 Comm. 65. (u) Manxel's case, Plowd. 91. (x) Hun^rford v. Havrland, 3 Bulstr. 323 ; S. C, 2 RoU. Rep. 370 ; S. C, W. Jo. 132 ; S. C, Latch, 37 ; Gilb. Ten. 173. (y) Co. Cop., s. 31, tr. 45 ; Oenel's case, 4 Co. 47 b. («} Hun^crtbrd v. Hawland, ante, 620, n. 'z). (o) Fitzh. Heriot, pi. 6'; Co. Cop., s. 25, tr. 33. (b) 21 H. 7, 13 a. COMMON COPYHOLDS. 431 but it may be reserved upon the grant of any less estate, as upon a lease for life, after the death of tenant for life ;(c) so, if a lease be to A. for life, after- wards to B. for life, remainder to C. for life, a heriot may be reserved after the death of each of them ;[d'^ so, if a lease be for- years, if two lives continue, it may be reserved after the death of each life;(€) so, if tenant sJiens a parcel, the heriot shall be multiplied, (/) and if the lord be seised of a heriot by the alienee, the same continues, though the tenant re-purchase this parcel ;(/) so, heriot service thus reserved *upon a lease is, like r-,.(.o(\~\ rent, incident to the reversion, and it shall go with the reversion to i- " '-' the heir, and not to the executors. (^) or to the grantee of the manor .(j?) It is said, that the heriot being confined to personal chattels, is no charge on the land, any more than a relief or a fine on admiuance to copj'holds ;(/»] but this can be said only of heriot custom, (£j or where there is no express reser- vation, see post, § 814. 805. If there be a lease for lives, rendering rent, and a heriot upon every death, and afterwards the manor is leased for years, the heriot goes with the reversion to the lessee ;(^) so, if a lease be for ninety-nine 5'ears, if two lives so long continue, to commence after a death, or surrender, &c., of a former lease, reserving a heriot after the death of each life, if either dies before the lease commences, no heriot shall be paid :[l) so, for the last life no heriot can be seized, or levied by distress, but only b}' action upon the contract, for by his death the term is determined, sed quiere.{iny 806. Heriot service lies in render, it may, therefore, be recovered either by seizure, distress, or action. Heriot service, when part of the ancient tenure, may be seized, or the lord may distrain for it at his pleasure ;(n) and it may be seized either in or out of the manor, for the property vests in the lord immediateh' on the death of the tenant, and therefore he may seize the property anj- where, just as he ma)' his own property :(o) and for this reason it has been holden, that the lord may seize a heriot in the *hands of the vendee, unless sold in jsRon market overt :{p) but the lord can seize no other than the tenant's L ^ on-n beast, (j) although he ma\- distrain any man's beast on the land ;[q) so, where on a lease for three lives, or ninety-nine years determinable on three lives, there is reserved for a heriot upon the death of each life his or their best beast, and the lease is assigned, and then one of the lives dies, the beast of the assignee cannot be seized, though the lessor may distrain upon the land for the best beast of the deceased tenant, (^r) (c) Osbnrne v. Stare, 2 Lutw. 1367. {d^j Lanvcn v. Came, 2 Saund. 167. (e) Winch, 47 : 2 Lutvr. 1367. {/) Fiiz. Heriot, pL 1. (?) Lanyon r. Carne, 2 .Saund. 167. (A) Co. Cop., s. 24, tr. 24 ; Fitz. Avowrie, 233. (0 See 3 H. 7, 10 b ; cited 2 Walk. C-op. 142, n. (c) (i) Winch, 47. 57. (/) Lanyon v. Came, sup. (m> 2 Lutw. 1368. (n) Woodland v. Mantel, Plovrd. 96; Odihara v. Smith, 2 Cro. EI. 589; S. C. Br. Hariot, 2; S. C, Moor, 540, reversing- the judg^raent in C. P. ; And. 298; Austin v. Bennet, 1 Salk. 356 : Parker v. Gag-e, 1 Show. 81 ; Edwards r. 3Ioseley. Willes, 192. (0) Woodland t. Mantel, sup. ( p) Kitch.'262. (9) Dy. 199 b, pi. 57 ; Ow. 146 : Major v. Brandwood, Cro. Car. 260. (r) Lanyon v. Carne, 2 Saund. 165 ; S. C. nom. Lanjan t. Came, 1 Lev. 294 ; S. C. nom. Lion v. Garew, 1 Yentr. 91 ; S. C. nom. Hangan'^v. Cawe. 1 Sid. 437 ; see also 2 Keb. 505. 432 crabb's law of real property. 807. If a heriot be reserved upon a lease or by deed, since the statute Quia Emptor es, (under Avhich no new tenures can be created,) payable by tenant in fee, it is considered as rent, and can only be recovered like rent by distress, or action of covenant or debt, but cannot be seised ;(s) and the lord or lessor may distrain for a heriot the cattle of any stranger that are upon the land, and retain them until the heriot be satisfied •,{t\ and if not replevied, the lord may now sell them under the 2 W. & M. c. 5, see Dig. p. ii. tit. Distress ; and if the tenant brings replevin, the avowry need not show the particular thing to which he is entitled as a heriot ;(/) but if the grant be lost, the lord in avowry must prescribe, which supposes a grant ;(w) but he need not now allege seisin in himself or his ancestor, he may avow generally under the 11 G. 2, c. 19, s. 22;(.r) but the lord cannot distrain for heriot service out of the manor or lands demised. (3/) So, an action of debt or covenant lies to recover a heriot reserved upon a lease. (^) r^pqo-i *808. Heriot service shall be extinct by unity of possession ;(«) L -' so, if the lord purchase parcel of the land, because it is entire and valuable \{b\ sed seciis as to the heriot custom, for if the custom of the manor be, that upon the death of every tenant of the manor, Avho dies seised of any lands held of the same manor, the lord shall have a heriot ; although the lord purchases part of the tenancy, yet he shall have a heriot by the custom of the manor for the residue. (c) So, if a tenant makes a settlement upon his son in marriage, it avoids the heriot, and is not fraudulent within the 13 El. c. 5, see Dig. p. ii. tit. Frauds ;(- -' of the disseissor. (ar) 811. Though a custom, that the lord shall have the best beast, &c. of his tenant who dies, is good, yet a custom or prescription to have a heriot of every stranger dying within a manor is bad, because it cannot have a rea- sonable commencement between the lord and a stranger, though it may between the lord and his tenants \{y) so, a custom or prescription to have a heriot, that is, the best beast of his tenant, and if it be eloigned before the (t) Kitch. 262 ct seq. {k) 2 Watk. Cop. 155, n. (1,) 278. 298 ; 1 Scriv. Co. 459, 3d ed. (I) 1 Inst. 185, b, (m) Trinity College (Camb.) v. Browne, 1 Vcrn. 441 ; Smartle v. Penhallow, 1 Ld. Raym. 1000. (n) Br. Hariot, 1 ; Br. Avowrie, 142 ; Br. Entre Cong., pi. 20 ; Butler v. Archer, 0\v. 152; 2 Watk. Cop. 149. (o) 1 E. 2. 14 a ; Long's case, 5 Ed. 4. 72 b ; Fitz. Hariot, 7 ; 2 Watk. Cop. 155 ; 1 Scriv. Cop. 446, 3rd ed. ( p) Gilb. Ten. 172 ; 2 Watk. Cop. 137. (7) 21 H. 7. 15 b ; Kitch. 266 ; Bro. Heriot, 5 ; Kcb. 80. (»•) 3 H. 6. 45 b. (s) Kitch. 265. It) Bruerton's case, 6 Co. 1. (h) 8 Co. 106 b. (x) Co. Cop., s. 56, tr. 129 ; 44 Ed. 3. 13 ; 7 H 4. 17 ; Kitch. 263, 264 ; Bro. Hariofa, 1 ; Norrice v. Norrice, March, 23 ; S. C. nom. Norris v. Norris, 2 Roll. Abr. 2 ; see also 2 Watk. Cop. 146, 147. (V) Parton v. Mason, Dy. 199 b ; Plowd. 95 ; Dav. 33 ; Parker v. Combleford, 1 Cr. El. 125 ; 2 And. 153, 434 craee's law or rial property. lord seizes it, that then he may take the beast of any other person levoTii and couchant upon the land, is unreasonable and void.[z) 812. A heriot due on the death of a tenant is only where he is solely seised, and not where he is seised jointly with another, for joint-tenants being seised per mie et per tout, make altogether bat one tenant to the lord, be there ever so many of them, therefore, no heriot is due until the death of the last surviving tenant ;(a) and the rule is the same with respect to copar- ceners, who likewise make but one tenant ;'.b) so, where a grant is made of lands to one for hfe, with remainder to another for life, and remainder to a third in fee, the particular interest and the remainder form but one tenant, and consequently no heriot is due until the death of the survivor of them all.(c) On the other hand, tenants in common being solely seised, a heriot is due to the lord on the death of each of them ;(<£) but when their shares *are re-united in the same person, they form but one tenement, and L - consequently only one heriot is due in respect of them.(c) 81.3. A heriot is not due on the death of a person having only an interesse termini, as where a lease is made to two for ninety-nine years, if three per- sons should so long live, to commence at the expiration of an existing lease, at a certain rent, and rendering a heriot after the death of the lessees, or either of them, and one of the lessees die before the expiration of the first lease, a heriot could not be demanded, as there would be no reversion until the commencement of the term, and for want of a reversion the reservation could not take effect. (/) In Smartle v. Penhallow,(g') a heriot was held not to be due on the death of an assignee of a bankrupt, but on that of the bankrupt himself. 814. If the tenant dies, having (without fraud) no beasts, then the lord sliali lose his heriot,(A) and the best beast must belong to the tenant at the time of the death or alienation ;(t) and this may apply to heriot service as well as to heriot custom, for it is said, "It is a casual thing if the lord have the heriot, unless such custom or tenure be to have the best beast, or such a sum;" (A-) but if the tenant had conveyed away the beasts fraudulently, then the 13 El. c. 5, has provided a remedy. (A-) Unity of possession does not work an extinction of a heriot custom, as it does in the case of heriot service, see ante, § 804. ^ *815. The property in a heriot by custom vests immediately in L* -s the lord on the death of the tenant, or on an alienation by him, and («) Parton r. Mason, sap. ; X. BendL 112, pL 147 ; Moor, 16, pL 58. (o) Kitch. 264 ; Butler v. Archer, Ovr. 152. «^ , (&) Lib. Ass. 210 b ; 3 Leon. 13; Ca. 30 ; Eastwood v. VTinke, 2 P. Wms. 614 ; 2 Watt. Cop. 14^,149. ^ ^^ .ot (c) Keilw. &3, Bed qosere. (i) Attree v. Scott, G East, 4*1. (e) Garland v. Jekyl, 273; Holloway v. Berkeley, G B. i C. 2;= .S. C, 9 D. & P^ 83. (f Lion V. Carew, 1 Vent 91 ; .S. C. nom. Lanjon v. Came, 2 Saund. 165 ; S. C. nom. Langun v. Came, 1 Lev. 294 ; S. C. nom. Lemal r, Cara, 2 Keb. 505 ; S.C. nom. Hangon and C'awe, 1 Sid. 437. (g) 2 Ld. Ravm. 1002 ; S. C , 1 Salt 188 ; S. C, 6 Mod. 63. , ^ , „„ ^., ^ (A; Shaw T. Taylor, 4 Hob 176 ; S. C, Hatt, 4 ; Carter, 66 ; see a.so Dy. 1 99 : Kitch. 264. (i; Kitch. 267 ; GUb. Dist, 146. {k. Per Curiam, Hutt. 4. ■■Eng. Com. Law Reps. liu. 97. COMMON COPYHOLDS. 435 it seems that it lies in prender, therefore the lord may seize it in any place either in or out of the manor,(/) but he cannot distrain for it,(m) for a pre- scription to distrain for his own goods is not good ;(n) he cannot, however, seize the beasts of another,(o) and a custom to take the beast of another upon the land, if the heriot be eloigned, is void ;{p) so, if the lord seizes the worst beast for the best, he must be content with his election, and cannot after- wards seize another ;{q\ and if a heriot be eloigned so that the lord cannot seize, he may have detinue or trover against him who detains it,(r) or, ia certain cases, assumpsit, (s) 816. If the tenant brings replevin, the lord or lessor may, in the case of heriot service, avow generally under the 11 G. 2, c. 19, s. 22 ; sed secus as to heriot custom, for this has been held not to be within the statute, (^) there- fore, in replevin as well as in trespass, if the defendant avows or justifies for heriot custom, he ought to allege the seisin of himself and of the tenant, the custom for a heriot, the death of the tenant, and seizure of the heriot ;(m) and it is not sufficient to allege a custom to take the best beast, without say- ing for a heriot, or in the name of a heriot ;(x\ so, evidence of a custom for the homage to assess a certain sum of money as a heriot, and that such assessment had always been made with reference to the best chattel of the tenant, would not support an avowry for a heriot in kind;(?/) so, a ^^^^-, *plea which does not set out the custom with all exceptions, has L J been held bad ;[z) so, where the custom set forth was, that the lord should have the best beast at the tenant's death, and the custom proved that he should have the best beast or good, the variance was held fatal ;(«) so, where the plea stated a custom in the manor, that the lord, from time immemorial until the division of a certain tenement into moieties, had been accustomed to take a heriot upon the death of every tenant dying seised, and since the division, had been accustomed to take, on the death of every tenant dying seised of either of the moieties, a heriot for each moiety, held, that this must be taken to be one entire custom, and not two distinct customs, the one ap- plicable to the tenement before, and the other after the division, and being laid to be an immemorial custom, it is disproved by evidence that the division was made within memory. (6) (/) Keilw. 82 a, 84 b. (m) Id. 167; Bro. Hariot, 2. G, 7 ; Parker v. Gage, 1 Show. 81 ; Austin v. Bennet, 1 Salk. 356. (n) Bro. Hariot, 2. 6, 7. (o) Major v. Brandwood, Cro. Car. 260. Ip) Dy. 199 ; Bendl., pi. 147 ; 2 Brownl. 90. (7) Bro. Hariot, 11 ; Hod. 60. (r) Bro. Hariot, 619 ; Kitch. 263. 267, (s) Garland v. Jekyl, 2 Bing. 292.« (0 Lloyd V. Winton, 2 Wils. 28. (m) Co. Ent. 613 a; Baldwin v. Noakes, 2 Lutw. 1309, 1310. (x) Dy. 199 b. (y) Parkin v. Redcliffe, 1 B. & P. 283. (z) Griffin v. Blandford, Cowp. 62, (a) Adderley v. Hart, 1 B. &. P. 394, n, (a). (6) King.^tnill v. Bull, 9 East, 185, "Eng. Com. Law Reps, ix. 412. 436 crabb's law of real property. IV. 2:holtij5. The grant of copyholds comprehends the following particulars : — 1. Who may grant copyholds. 2. How copyholds may be granted. 3. To whom grants of copyholds may be made. 4. Of what things grants may be made. 5. Construction of grants. 6. How the power of granting copyholds may be lost or suspended. (c) 2 Lutw. 1190. ((f) Clench v. Cudmore, .3 Lev. 3[)5 ; P. C, 2 Lutvv. 118. (e) 1 Leon. 266; Ca. 357. (/) Co. Cop., s. 56, tr. 128. (g) 2 Inst. 38. COMMON COPYHOLDS. 437 *I. SJyjo mau flraiit Hantis i)» ffops- § 819. Grants may be made by Persons generally. By Bishops, &c. By the Queen Consort. 820. Grants by Lords having particular Estates. 821. Grants, when valid. Re-grant according to Custom. 822. Grantor must be Lord. [*C39] § 822. When Grants arc void. 833. Grants in other Cases. 824. Delegated Authority. Executors may make Grants. Grants by the Steward as by Lord. 825. Grants by the Queen's Steward. 826. Grants by Under-stewards, &c. the § 819. Every lord of a manor having a lawful estate therein, whether in fee, in tail, for life, years, or at will, may make voluntar}^ grants of such lands as come into his hands by escheat or otherwise, and such o-rants shall bind those who have the inheritance, (A) for these grants derive their force and effect, not from the lord, but from the custom of the manor ;(/) if, there- fore, a husband seised of a copyhold manor in right of his wife grant a copyhold, this shall bind the wife and her heirs, notAvithstanding her cover- ture, for the copyholder is in by custom of the manor ;(/c) but the grant must be made in the name of the husband and wife ;(/) so, a grant made by an infant is good,(m) or an idiot, or a lunatic, (n) for the law doos not regard either the person of the lord, nr the quantity of his estate ; so, there- fore, being an outlaw, or excommunicate, will not disable him to make voluntary grants, if, in the case of outlawry, between the awarding the exi- gent and the attainder ;(o) so, a guardian in socage ;(j5) so, a grant made by a bishop, prebend, parson, is good, and in the case of a bishop will bind the queen on a vacancy of the see ;(^) so, if the queen consort be tenant *for life of a manor, she may grant it by copy, and such grant by ^ ,.,(,-, the custom of the manor shall bind the king himself, for she was •- -' domina pro tempore.{r) 820. So, as to the quantity of his estate, though the lord has only a par- ticular interest in the manor, he may grant by copy, and though the estate granted by him may not only continue longer than his own estate in the manor, but even though the estate granted may not come into possession during the existence of his own estate, thus tenant in dower of a copyhold may grant in reversion, and it shall bind the heir after her death ;(s) so, a guardian in socage may grant copyholds in reversion, and it shall bind the ward though it come not into possession during his infancy. (/j Whether a (A) 4 Co. 23, b. ; 1 Inst. 58, b. (0 4 Co. 24, a. (A) 4 Co. 23, b; 8 Co. 63. (I) Shoplane v. Roydler, Cra. Jac. 99 ; Co. Cop., s. 34, tr. 68. (m) Co. Cop., s. 34. (n) Blewet's case, Le}-, 47, 48. (o) Co. Cop., s. 34, tr. 71. (p) Osborne v. Garden, Plow. 293. (q) 4 Co. 22 a, 23, b. ; Nov, 41. (r) 4 Co. 23, b. (s ) Gay V. Kay, Cro. El. 661 ; S. C , 1 Roll. Abr. 499 ; see also Godb. 135 ; Ow. 4. (/) Shoplane v. Roydler, Cro. Jac. 55 ; see also Scopland v, Rydler, Godb. 143; Ow, 115; 1 Roll. Abr. 499. 438 crabb's law of real property. lessee for years may grant copyholds in reversion, unless the reversion happen before his estate for years is ended, is not so settled ;(t<) but the better opinion appears to be that there ought to be a custom to enable the lord to grant copyholds in reversion ;(u) so, on the same principle that the smallness of the lord's estate makes no ditference, grants by tenant at will of a manor, and tenant by statute merchant, staple, or elegit, are good, (a:) 821. But two things are necessary to the validity of such grants : — First, that there being nothing but custom to warrant a grant by copy, such custom must be strictly pursued as to the estate, customs, services, and tenure, else it is not the estate demised before. (y) Therefore, although if there be a copyholder in fee, the lord may release part of the services with- out "prejudicially affecting the copyholder's estate, as there appears L -"in such case to be an old estate ; yet, when the lord grants a new estate by copy, this being against common right, and warranted only by the custom, such custom to bind the heir must be strictly pursued, (~) conse- quently, a person having but a particular estate in the manor cannot grant a copyhold by parcels, or demise part and retain the residue him- self, (a) So, where lands have come into the hands of the lord by escheat or other- wise, the lord upon a re-grant of the same cannot diminish the ancient rent and services ;(i) it seems, however, that he may reserve a greater rent;(c) but, as a rule, he cannot make the minutest variation in the grant, for that were to make a new copyhold ;((A and it seems doubtful whether a lord may re-grant copyholds in separate parcels at apportioned rents, unless where a copyhold of six acres, which has been ever demised for 6s. rent, has escheated to two coparceners, and one grants three acres, reserving 36'. pro rata, which is a perfect reservation ;(e) see also Lord Mountjoy's case,(/) also 1 Watk. on Cop. 282 ; but, as to the apportionment of rent, and how far it operates as an extinguishment of the customary estate, see Reay v. Huntington. (^) If lands grantable in fee escheat, the lord may grant them out again for life, this being warrantable by the custom, for the custom which enables him to grant in fee shall enable him to grant for life. (A) Upon the same principle, if a copyhold comes to the lord's hands by r*fi-i9l ^s^heat or otherwise, and the lord makes a *lease for years or for L J life, or other estate by deed or without deed, this land can never after be re-granted by copy? for the custom is destroyed, because during such estates the land was not demisable by copy of court roll,(j) but see further on this point, post, § 839. {«) Co. Cop., s. 34, tr. 74 ; Ow. 115. (f) Maicii, G, pi. 13 ; Lord Oxford's case, Moor, 0.5 ; Plimpton v. Dobinct, Gouldsb. 36, 102 ; Godb. 110; 3 Leon. 226; Gilb. Ten. 322; 1 Watk. Cop. 40. (x) 4 Co. 23 ; 1 Inst. 58. (v) Bro. Tenant by Copy. 27 ; Co. Cop., s. 41. (2) Bro. Tenant by Copy, 27 ; Co. Cop., s. 41. (o) Gay V. Kay, Cro. El. 662. (ft) Kitch. 167, Co. Cop. s. 41, tr. 90 ct seq. (c) lb, ; see also Smitb v. Rciiard, 2 Roll. Rep. 236. {d) 2 Comin. 370; sec also Co. Cop. sup. ; Harris v. Jav, or Jays, 4 Co. 30 ; Cro. EI. 699 ; Clarke v. Pcnnyfatlier, 4 Co. 33 ; Paston v. Mann, Hetl. 6. (e)Co. Cop. s. 51,tr. 91. (/) 5 Co. 3 b. (£■) 4 East, 271. 289. (/*) Kempe and Carter's case, 1 Leon. 56. (i) French's case 4 Co. 31 a. COMMON COPYHOLDS. 439 822. In the next place, the person making the grant must have a lawful interest in the manor at the time ; therefore, if any person having a tortious or defeasible estate of inheritance, subject to the action or entry of another, makes a voluntary grant upon escheat or forfeiture of a copyhold, such grant shall not bind him who has right, when he has recontinued the manor by action or entry ;(A') so, grants of copyholds by a tenant in tail after dis- continuance, and by the feoffee of a man seised in right of his wife, may, after the death of the grantor, be avoided by the heir ;(/) so, grants made by the heir after the death of the ancestor, whereof the widow is endowed ;{7n) so, grants made by an abator or intruder ;(?i) so, by a tenant at suffer- ance, (o) as by a grantee pw autre vie, continuing after the death of cestui que vie, or by a lessee for years of a manor after a breach of condition an- nexed to his estate, and before entry of lessor ;(/)) sed secus upon grants made by a lessee for life on condition, after the condition broken, but previ- ous to entry for breach of condition, as the livery of seisin necessary to per- fect the grant could only be avoided by entry or claim ;(*/) so, grants by the feoffee of an infant cannot be avoided by the entry of the infant. (r) So, grants made after an alienation in mortmain will be *void, r-^/^^q-i even before the lord paramount has entered for a forfeiture ; (5) so, L -J by a parson, (a manor being parcel of his glebe,) made after institution, and before induction, for as to the temporahties he is not complete parson before, though it is otherwise as to the spirituahlies,(5) 823. It is said, that if there be two joint-tenants of a manor, and a copy- hold escheats, one of them may grant the entirety of this copyhold, each being seised joe?' mie et per tout.{t) If the estate of the grantor cease the next moment, it is immaterial, if he be lord at the time ; therefore, if a man seised of a manor in fee hath issue a daughter and die, his wife privement enseint with a son, the daughter may grant by copy, for she was legitima doniina pro tempore ; so, if the lord commit felony, and be attainted or convicted by verdict or confession, yet grants made by him after the felony committed, and exigent awarded, will be good, though by relation the manor is in such case forfeited from the time of the exigent, for in all these cases he is dominus pro tempore. (ii) 824. A person having an authority derived from one who is lord p7'o tempore, or otherwise, may make grants of copyholds ; therefore, if the lord of a manor, seised in fee simple, by his will direct that his executors shall grant copyhold estates according to the custom of the manor, for the pay- (i)4Co. 21 a; see also 1 Kitch. 197; Co. Coix s. 34, tr. 72; 1 Inst. 58; Dillon v. Fraine, Poph. 71. (/) Chudleigli"s case, 1 Co. 140 b ; Co. Cop., s. 34, tr. 73, 74. (?rt) Co. Cop. § 34, tr. 71 ; 1 Inst. 5S, b. (n) 1 Inst. 58, b. (0) Rous and Artois' case, 2 Leon. 45 ; S. C, Ovv. 28; S. C. nom. Rous v. Artois, Moor, 236 ; S. C, cited 4 Co. 24 a ; Co. Cop., § 34, tr. 74. ip) Co. Cop., § 34, tr. 74. (q) Earl of Arundel's case, Dy. 342 ; S. C, Jcnk. Cant. 242, Ca. 26 ; S. C. Bendl. &, Dal. 290 ; S. C, recognised 4 Co. 24 a ; Co. Cop,, s. 34, tr. 70. 74. 75. (r) Co. Cop., s. 34. (s) Co. Cop., s. 34. (t) Co. Cop., s. 34, tr. 76; but see contra, Lancaster v. Lucas, 1 Leon. 234 ; 2 Com. 183 ; 1 Watk. on Cop. 26. (u) Co. Cop., s. 34, tr. 70, 71 ; see also I Watk, on Cop. 27 et seq. 440 • crabb's law of real property. ment of his debts, &c„ and they make voluntary grants accordingly, these grants are good, although they have no interest whatever in the manor.(a^) Grants made as well by a steward as by the lord are good, and it should seem, that if he is a steward de facto only, it will be sufficient, for the law -.is little inclined to examine either *the imperfections of the stew- [*'644J ^^^,^ person as being an idiot, &c., or the unlawfulness of his autho- rity ;(y) yet, even a steward de jure cannot grant copyholds in opposition to the express commands of his principal ;(z) neither would a grant by diminishing the ancient rents and services be good, for he is in the place of the lord;(«) and although the lord afterwards become lunatic, yet he may by his steward grant copyholds ;{b) but although in that case it was ordered that the steward should not grant without the privity of the committee, yet it would seem that the steward's grants are sufficient. (6) 825. The queen's steward is appointed by letters-patent, and such a steward ex officio, without any special warrant, may grant copyholds, and the queen shall be bound by the custom of the manor ;(c) yet his duly is before he makes any grant to inform the Lord Treasurer, or the Chancellor, or Barons of the Exchequer ;(c) but a steward retained only by the queen's auditor or receiver cannot make such voluntary grants, for neither the audi- tor nor receiver has authority to appoint stewards ;(c) but if A. and B„ under the seal of the Exchequer, be appointed joint stewards of all the lands of a fugitive, and A. make a court and grants copies, though in strictness he had no power without B., yet these grants are good, being made by one that had a colour to keep courts. (i]. Raym. G58 ; S. C, 1 Salk. 95. (g) Harris v. Jay, 4 Co. 30. (A) Gilb, Ten, 204. C M M O N C O P V II L D S. 441 II. %)o\i3 e'ojpijljoltis mail be Qrautc^. § 827. Where the Lord may or may not in- crease the Rent and Services. § 828. As to granting Copyholds out of the Manor. § 828. Entry of the Grants on the Rolls. § 827. If a lord grants a copyhold upon a surrender, he ought to grant it, according to the intent of the surrender, and he cannot increase the rent and services ;(/) but where a copyhold comes to the lord by escheat, forfeiture, &c., he may grant it de novo, rendering a greater rent, see ante, § 821 ; also for what estates copyholds may be granted, see post, Customary Estates. 828. It has been much discussed whether the lord of a manor can grant copyholds out of the manor, or indeed out of court ; but the better opinion appears to be that as these grants may be made by the lord or his steward, they may be made as well out of court as in ;{k) and the lord may make a grant out of the manor at Avhat place he pleases ;(^) but not an under- steward without express authority ;(?n) but if the court itself is void, all grants and admittances, though made by the lord himself, Avill be void ioo;{n) so, where one had two manors, and granted a copyhold of the one manor at the court of the other, held, that it was a void grant, for *it cannot be copyhold according to the custom of the manor, where- p^g^g-i of it is not parcel. (o) *- ^ So, to establish the validity of all such grants, it is necessary that an entry thereof should be made on the rolls of the manor, for it is said, " If the lord in open court doth grant a copyhold land, and the steward maketh no entry thereof in the court-rolls, this is not good, though it be never so publicly done, nor no collateral proof can make it good."(jt3) III. So b)l)om (JGi-nnts of ©opnljolTJs majj be matje. ) 4 Co, 62. (o) Cro. Car. 242 ; S. C, Palm. 327. (»•) 7 T. R. 13. (s) 9 BiniT. 384. (0 Gilb. Ten. 327. (u) Rutland (Countess) v. Gie, 1 Sid. 1.52 ; S. C. noni. Countess of Rutland's case, 1 Lev. 107 ; S. C. noni. Rutland (Lord) v. Greene, 1 Keb. 558. (») riayer v. Roberts, W. Jo. 243. 452 crabb's law of real property. that if there were no custom to regulate it, neither a customary tenant with- out license from the lord, nor the lord without the consent of the tenant, could open and work new mines. (x) In Bourne v. Taylor,(2/) where all the above-mentioned cases (see supra, § 853) are cited and commented upon, it was expressly held, that the lord of a manor, as such, has no right, with- out 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 for so doing ; and, lastly, it is said in Grey v. Northumberland (Duke),(z) "From that case, (viz. Bourne v. Taylor, sup,), I collect that the lord of a manor may be in the same situation with respect to mines as in respect to trees ; that is, the property may be in him ; but it does not follow that he can enter and take it, without consent, which must be acquired by purchase or other- wise, "(a) -. *855. The possessory right of the tenant extends so far that the L J possession is in him, from the surface down to the centre of the earth, according to the general rule, that he who has the surface has the subsoil, and he may recover substantial damages for any actual injury done to the surface ; therefore it was held, that the trespass was maintainable by a copyholder against the owner of an adjoining collier}', for breaking and entering the subsoil and taking coal therein, although no trespass was com- mitted on the surface, Lewis v. Branthwaite ;(i) and it was also said in this case, " Although the property in the mine may be in the lord, he has not such a possessory right as to maintain trespass against a wrongdoer."(c) But as to the right to take the minerals, it appears that a copyholder may acquire a right to certain minerals by custom, as to dig marl, clay, &c., for repair, in the same manner as he acquires a right to cut down trees, see ante, §§ 849 et seq. ;{d\ yet although a distinct positive usage for the customary tenant to take the minerals might be vaHd in law, it is incumbent on the tenant to prove the custom, otherwise the right will remain in the lord ;(e) so, although a tenant might do one sort of waste, as to cut dowa timber, that was no evidence that he could commit another kind of waste, as that of disposing of minerals. (/) The interest of the lord, on the other hand, is not derived from custom, but is that which he has at common law, or which is reserved to him out of his original grant. (o-) 856. If the minerals are once severed from the inheritance, whether by the copyhold tenant or a stranger, the lord will be entitled to recover them in an action of trover, for they are like trees felled, which belong as per- (a;) Winton (Bishop) v. Knight, 1 P. VVms. 406. (y) 10 East, 189. (z) 17 Ves. 283. (a) Per Ld. Eldon, C, ; Grey v. Northumberland (Duke), 17 Ves. 282. (6) 3 B. & Ad. 437. (c) Per Littledalc, J., Lewis v. Branthwaite, 3 B. & Ad. 437. {(l) Winchester (Bisliop) v. Knip-ht, 1 P. Wms. 406 ; Gilb. Ten. 327. (e) Rowe v. Brenton, 8 B. &, C. 737 ;> S. C, 3 Man. & Ry. 133. (/) Winchester (Bisliop) v. Knifirht, sup. (g) Folkard v, Hemmett, 5 T. R. 417, n. »Eng. Com. Law Reps. xv. 335. COMMON COPYHOLDS. 453 sonal chattels *to the owner, whose right of possession has accrued, r-^^^r-t see ante, § 25 ;(/'*) and so, where the lord himself granted all the L J coals within the manor for a term, and afterwards entered upon the copy- hold and dug for coals, it was held, that the lessee might recover those that were so dug.(i) 857. Mines are a part of the demesnes of a manor, and not a distinct property from the freehold ; therefore, if it is intended to except them from the grant of any waste on the enfranchisement of copyholds, the right must be reserved in expressed terms ; thus, where, by the terms of an inclosure act, a certain portion of the wastes of the manor was allotted to the lord in lieu of his right and interest in the soil, and the residue was to be allotted to the several tenants in fee, discharged from all customary tenures, rents, fines, &c., a saving clause, reserving all seigniories incident to the manor, and all rents, fines, services, &c., and all other royalties and manorial juris- dictions whatsoever, will not reserve mines under those allotments to the tenants ;(A') although it appeared by a lease that w^as unexpired at the time of passing the act, that the right of digging for the mines had been exer- cised by the lord of the manor,(A:) it being held, that the mines are part of the soil, and passed by that word in the allotments to the several proprie- tors, and that under the saving clause nothing was reserved to the lord but rights of an incorporeal nature, Avhich are quite distinct from the soil. (A-) 3. Right of Common. 858. By presumption in law, the exclusive property in all wastes and commons belongs to the lord, but evidence may be adduced to shew that commoners or others have also an interest ; and although a custom to exclude the lord totally from the profits of the soil Avould be unreasonable, yet a pre- scription *to have the sole right of pasture to the exclusion of the p^=g/>e-| lord has been estabhshed ;(/) for, notwithstanding this prescription L for the sole pasture, yet the soil is the lord's, and he has mines, trees, bushes, &c., and he may dig for turves ;(m) and it is said, that such a grant, that is, of the sole pasturage, would be good at this day ;(m) so, a lord might grant to his tenants to have common, excluding himself, but such a common is not good by prescription ',{in) so, though the lord may establish his general right to all tin mines within the manor, j'et consistently therewith the tenants of certain tenements in a vill within the manor, some of them freehold, and some customary, may by acts of ownership for more than twenty years, Qi) Player v. Roberts, W. Jo. 243 ; Rowe v. Brenton, 8 B. «fc C. 737;' S. C, 3 Man. & Ry. 133. (?) Pla3'er v. Roberts, sup. (k) Townley v. Gibson, 2 T. R. 701. (Z) North V. Coe, Vaugh. 251 ; .S. C. nom. North v. Cox, 1 Lev. 253 ; Hoskins v. Robins, 2 Saund. 324 ; S. C, 1 Vent. 123 ; S. C. nom. Hopkins v. Robinson, 2 Lev. 2 ; S. C, 1 Mod. 74; 2 Pollexf. 13; 2 Keb. 842 ; see also Kentick v. Pargiter, Cro. Jac. 208 ; S. C. nom. Kenrick v. Pargiter, Yelv. 129; Douglas v. Kendal, Cro. Jac. 256; Pitt v. Chick, Plutt. 45. (m) 1 Mod. 74. aEng. Com. Law Reps. xv. 335. 454 crabb's law of real property. establish their right to copper mines, as well under the waste and customary lands as under the freehold lands. (n) 859. "The lord by granting rights of common on his waste does not thereby exclude himself or his tenants from all use of the waste on which the rioht of common is to be exercised, but merely grants to others, in com- mon with himself and his tenants, certain rights upon that waste ; all that the lord has not granted remains in him. He may, therefore, apply the waste to any purposes not inconsistent with the rights which he has previously granted to the commoners ;"(o) but an unlimited and unrestricted right to abridge the rights of the commoners,, and to confer in severalty upon any person, from time to time, such portions of the waste as the lord in his dis- cretion should think fit, has been held to be utterly inconsistent with an existing right of common, and as tending to annihilate the rights of the ^ commoners akogether, *Arlett v. Ellis,(/J) recognising Badger v. L -I Ford,(<7) where a custom for the lord to grant leases of the waste of the manor without restriction was held bad in point of law, and distinguish- ing these cases from Bateson v. Green, (r) w4iere the right of digging for clay, having been proved to have existed at all times in the lord, was held to be good, although it partially abridged the rights of the commoners ; also from Clarkson v. Woodhouse,(5') where a custom, that when certain parti- cular portions of land, which had been destined for turbary, ceased to have the power of producing turbary, the owner of the waste should be at liberty to take that portion to himself, was held good; because the owner in that case took nothing from the commoners which had been originally appropri- ated to them for purposes ©f pasture ;(s) also from Folkard v. Hemmett, whfere the grant of the soil of the waste by the lord was held to be good, because such grant had been made with the consent of the homage ;(/) see further on the rights and interest of the lord and the commoner, ante, §§ 314 et seq. 860. A copyholder can claim right of common by custom only, for he has common by reason of the custom, which annexes the same to his customary estates, and therefore if a copyholder purchase the freehold of his copyhold estate, his right of common is destroyed ;(.r) and where copyholders claim common on the several pasture in the lord's soil, it is not necessary to show what estate they have in their copyholds, for be their several estates either in fee, or for life, or for years, yet the custom hath annexed this sole pasture as a profit a prendre to their estates for the time being ;(«/) so, therefore, where a man staled himself to be a customary tenant of a manor, according pitppHj.-] to the custom of the manor, of lands *which were parcel of the L -' manor, and holden by copy of the court-rolls, it was held sufficient to support his claim to common, without adding that he was tenant " at the (n) Curtis v. Daniel, 10 East, 273. (o) Per Bailey, J., Arlett v. Ellis, 7 B. & C. 3G2.» (p) 7 B. & C. 365.i> (9) 3 B. & A. 153.« (r) 5 T. R. 411. (s) 4 T. R. 412, n. (/) Id. 368. (x) Marsham v. Hunter, Cro. Jac. 253. (y) Hoskins v, Robins, 2 Saund. 324 ; ante, § 858. >Eng. Com, Law Reps. xiv. 53. •'Id. 'Id. v. 247. COMMON COPYHOLDS. 455 will of the lord;"(2) but it is otherwise with respect to any tenants of free- hold estates at common law, for if they claim anysuch benefit, they must show their estates, and prescribe in the name of the tenant in the fee by a que estate;{z) copyholders, however, cannot as a rule claim common by prescription, for they cannot prescribe at all against their lord, nor against any other, but only in the name of their lord ;(z) see further as to prescription by copyholders, under Title to Things Real. A claim of common by a copyholder, to be good, must be both certain and reasonable. (a) It is a good custom for a copyholder to have the lop- pings of the trees, and that on that account the trees should not be cut down by the lord, because the tenant has a future as well as present interest in the trees ;(6) so, a copyholder may claim estover, and a custom to cut down wood for repairs or other necessary uses is good ;(c) but such a custom will not warrant the sale of the wood;(c) unless sold to defray charges of repara- tion ;{d) so, a custom to dig for limestone, marl, clay, and gravel, for the same purposes ;(e) but in that case it is necessary to allege not only that the house was out of repair, but that the party entered for the purpose of getting materials for the necessary repairs of the house, and that they were used for that purpose ;(/) so, a custom for a copyholder to have turbary sufficient for the house to which it is appendant is good,(^-) or to dig for materials for the ^improvement of the land,(/i) but not to cut turf p^Qgg-i without limit, for the ornament of the garden, or for any other fan- L ciful improvement ;(/t) so, a custom for the proprietors of ships to dig for ballast is good, because it is for the maintenance of navigation ;(i) but a custom for the lord, or a customary tenant, to sink pits in the land of other customary tenants, and to lay the coals on the land, and let them remain there an indefinite time, and to lay wood and other materials there at his pleasure, held to be a bad custom, as being both uncertain and unreason- able. (A-) 4. Wardships, ^'C. 861. There are some other rights to which the lord of the manor may be sometimes entitled, namely, a right to appoint a guardian, and a right to the custody of lunatics, or to the lands of an alien. The first of these, as before observed, is not of common right, see ante, § 817 ; and as to the second, it is not settled whether the lord has any power over the land of a lunatic, except by custom ; therefore, where the lord had granted the custody of a lunatic's copyhold land, the Court held, that an action touching the land was to be brought in the name of the lunatic, for that no interest was gained in the land by the committee, he being no more than a bailiff. Cocks v. Dar- (z) Crowther v. Oldfiekl, 2 Ld. Raym. 1225. (a) 1 Inst. 59 ; 1 Leon. 11 ; Davis, 32, 33 ; 1 Roll. Abr. 565 ; 2 Roll. Abr. 264. (b) Stcbbing v. Gosnal, Cro. El. 629. (c) Foley V. Wilson, 11 East, 56. {d) Sandford v. Stevens, 3 Bulsf. 282. (e) Dubcrley v. Page, 2 T. R. 391. (/) Peppin V. Skakespear, 6 T. R. 741. \g) Tyrringliam's case, 4 Co. 37. Oi) V/ ilsoii V. Willes, 7 East, 127. (i) Lynn Regis (Mayor, &c.) v. Taylor, 3 Lev, 160, (A-) Broadbent v. Wilks, Willes, 360. 456 crabb's law of real property. 1 son ;(Z) and it was there said, that the lord had no povver over the lunatic's land without a custom, for the imitation of the king's power over freeholds was not a consequence, for although the 17 E. 2 (Stat. Prerog.) was but an affirmance of the common law in the case of the king, yet the collateral incidents of estates, as dower, curtesy, wardship, and the hke, were not without special custom ;(/) but in Beverley's case(7??) it is said that the ^ -, king shall not have the custody of the land *which an idiot holds by [" 669J ^^^^y^ ^^^ ^^^^ jg ^^^ ^^ ^g^^^g ^^ ^^.jH i^y ^j^g common law, it would be a great prejudice to the lord of the manor; yet, held in another case, that an alienation made by an idiot after office found should be avoided ;(n) an idiot, however, could not be ordered in the Court of Wards for his copy- hold, it being the rule that if an idiot had not any goods or chattels, or lands, except copyhold lands holden of a common person, the king should not have the custody, but the lord of whom the copyhold is holden ; but if he had any other lands, then the copyhold land also ;(o) and so, where a copyholder was mutus et surdus, it was held, that the lord and not the king, should have the custody, for otherwise the lord should be prejudiced in his rents and services. (yj) 862. In the case of copyhold lands purchased by an alien, as he cannot retain them, it seems not to be settled whether the queen or the lord may take advantage of the purchase, but the better opinion appears to be that the queen cannot take them except as a trust ;{q) see further, ante, § 832; and as to the copyholder's power to grant leases, see post, § 1399. [*670] *v. ^o\3i a eopn^oltr mrri) t)c lost or tjcstronrt. § 863. A copyhold estate may be lost or destroyed in three ways, namely, 1. By extinguishment. 2. By forfeiture. 3. By enfranchisement. (l) Hob. 215 ; S. C, Noy ; Poph. 141. {m) 4 Co. 126 b. (r?) Dy. 302, recognized in Beverly's case, 4 Co. 124. (o) Roger's case, cited marg. Dy. 302. (/)) Eavcrs V. Skinner, Cro. J. 105. ^-.-oT-./-. Cq) 1 Dy. marg. 2 b; Id. marg. 302; K. v. Holland, Sty. 20. 40. lO. Bi fe. C, All. 14, COMMON COPYHOLDS. 457 I. 3S):tfii2uiS!)meut of a Copwljolii. § 864. Copyhold cominor to the Freehold. 865. Freehold coining to tlie Copyhold, 866. Partial or total Extinguishment. 867. Suspension or Extinguishment. 868. Effect of Unity of Possession in the same Person. 869. Unity of Possession in the same Person in different Rights. § 870. Consequences of the Extinguish- ment. Copyhold Lands pass with the Manor, when. Merger. 871. Extinguishment of the Incidents to the Copyhold, or otherwise. § 864. A copyhold is said to be extinguished when the freehold and copy- hold interest unite in the same person and in the same right, which may be either by the copyhold interest coming to the freehold, or by the freehold interest coming to the copyhold. (?•) The copyhold may come to the freehold if the copyholder conveys his interest to the lord, whether by surrender or release, or bargain and sale ;(s) so, if the lord sell the freehold of inheritance of the copyhold to another, and then the copyholder release to the purchaser, this will extinguish the copj-hold, for although a release could not in its own nature faccording to the old law(?)] pass away a possession, yet it *might amount to a p*p~i-i signification of the tenant's mind ;{u\ and a copyholder being but a L -' tenant at will, anything amounting to a determination of the copyholder's will is sufficient to extinguish the copyhold, as if a copyholder comes into court and says that he is weary of his copyhold, and requests the lord to take it, that is a surrender ;(.r) and in one case it was held, that a copy- holder accepting his land to hold of the lord by bill, under his hands, instead of by copy, determined the copyhold interest ;(?/) so, if the copyholder sur- render to the use of the lord, (even though the lord be a disseisor,) it was much questioned whether this were an extinguishment or not. Moor v. Pit •.[z'j but the Court of C. P. was of opinion in this case, that it was a void surrender, and the copyhold not extinguished, («) and this judgment was affirmed in error. (6) So, if lands escheat or are forfeited to the lord, it is an extinguishment of the copyhold interest. (c) Although the lord may determine his estate by any act, yet the lord cannot destroy the estate of the copyholder by any act of his, as by the severance of the freehold of the land held by copy, for the custom has (r) 2 Gilh. Ten. 300. (s) Blemmerhasset v. Humberstone, Hutt. 65 ; S. C. nom. Blenerhasset v. Humberstone, W, Jo. 41 ; S. C. nom. Hasset and Hanson, Winch, 166; Scroggs, 192. {t) Prec. Conv., 3rd edit. tit. Release. (m) Anon., Cro. El. 21 ; Wakeford's case, 1 Leon. 102 ; Blemmerhasset v. Humberstone, Hutt. 65. (ar) Blemmerhasset v. Humberstone, sup. (y) Collman v. Portman, 1 Leon. 191 ; S. C. nom. Colman v. Bcdil, 1 Andr. 199. (2) 2 Mod. 287 ; S. C, 1 Frcem. 24. (o) Moor V. Pit, 1 Show. 153; Skinn. 28. (6) S. C. 1 Vent. 359 ; S. C, T. Jo. 154; see also 1 Watk. Cop. 92. 359. (c) Beverham's case, 2 Vent. 345 ; S. C, 2 Chan Ca. 194. 458 crabb's law of real property. established his estate, so that the lord cannot oust him, so long as he pays and performs his customs and services.(rf) 865. A copyhold interest may also be extinguished by the annexation of the freehold to the copyhold ; thus, if a copyholder in fee accept a lease for years of the same land from the lord, this determines his copyhold [""QTZj g^j^^jg .^g^ gp^ ^j^ ^Yie lord lease the copyhold to another, and the copyholder accept an assignment from the lessee. (/) If a copyholder take a conveyance of the manor in joint-tenancy, it appears that the copyhold interest will be extinguished, for joint-tenants are seised per mie et per toiit;{g) so, if a manor be leased for years, and a copyholder purchase the reversion in fee, by this the copyhold is destroyed, and the lessee of the manor may oust the copyholder, and hold the land during his term ;{g) so, if he accept a lease for years of the manor, it is said by some, that this is a total extinguishment of the copyhold, and the lessee may re-grant the copyhold again to whom he pleases ;(/t) but, according to others, it is only a suspension of his copyhold during the term;(i) so, if the copyholder join with the lord in a feoffment of the manor, his copyhold is thereby extinct ;(/) so, if the copyholder sues execution upon a statute, and has the manor in execution, it is said that the copyhold is gone,{k) for after the debt levied, the customary interests remains ;(/) and if the lord enfeoffs his copyholder to the use of another, his copyhold* is not destroyed, for it is saved by the Stat, of Uses ;(m) so, if there be a copyhold for three lives, habemV successive, and the lord by deed grants the inheritance to the first, the interest of the second is not destroyed ;(n> so, if the lord grants^ the freehold of a copyholder to a stranger for the life of the copyholder, his copyhold is not destroyed. (o) 866. There is a distinction between a conveyance of a portion of copy- ^ -^ hold interest by the tenant to the lord, *and a conveyance of a por- L -' tion of the freehold by the lord to the tenant, for the former operates as an extinguishment of the part only conveyed to the lord, and the latter as an extinguishment of the whole tenancy ;(;j) therefore, if a copyholder in fee surrender to the use of the lord for life, with remainder over to a stranger, or reserving the reversion to himself, it will be an extinguishment only of the estate so limited to the lord, but will not affect the remainder or reversion ;(5. 13. ( p) Co. Cop., s. 59, tr. 137 ; Peachy v. Somerset (Duke), 1 Str. 441 ; S. C, Prec. Chan. 573 ; Cary, 14, 15. (q) Co. Cop., s. 59, tr. 137. (r) 4 Leon. 241. (s) Rastal v. Turner, 2 Cro. El. 598 ; S. P., Baspole v. Long, Noy, 42. (t) Podoer's case, 9 Co. 107. (.u) Co. Cop., s. 59, tr." 138. (x) Kitch. 246. COMMON COPYHOLDS. 467 husband, nor an infant under the age of fourteen, (being till then in ward,) nor any person 7ion sanse meraorite, nor any idiot or lunatic, can forfeit a copyhold. By the 11 G. 4 & 1 W. 4, c. 65, s. 9, it is provided, that no forfeiture shall be incurred by infants, /e?nes covert, or lunatics, for refusing to be admitted, or to pay the lord's fine ; and under the 9 G. I, c. 29, which is repealed by the 11 G. 4, it was held that if one of several co-heirs of a copyholder were a feme covert at the time of the ancestor's death, and the lord seized the whole estate without first appointing an attorney, it was irre- gular and void.(?/) To the above general rule there are several exceptions. If difeme covert be attainted of treason or felony, with the consent of the husband, her copy- hold will be forfeited ;(z) so, if she commits waste with the hke consent, it will be a forfeiture ;(a) but a lease by the husband for more years than is warranted by the custom will be a forfeiture only for the life of the hus- band ;(6) but denying to pay the rent or to do suit at court are present for- feitures, which shall bind the wife ;(6) so, doing waste by the husband is a forfeiture, which shall bind the wife. (6) 884. An infant above the age of fourteen committing treason, felony, or voluntary waste, or other act to the disherison of the lord, or wilfully refus- ing his services, shall forfeit his copyhold ;(c) but for permissive waste, or replevying against the lord, or for leasing contrary to the custom, ^„-.^-, *or the like, he shall not be liable to forfeiture ;(rf) but if the infant ^ -■ accepts rent after full age, and so confirms a lease, the forfeiture will bind him ;(c/) but it appears very doubtful whether the lord would be justified in entering as for a forfeiture in such a case.(?) 3. Who may take Advantage of a Forfeiture. 885. A forfeiture can only be taken advantage of by him who is lord at the time of the forfeiture ; except in those cases where the act of forfeiture destroys the estate, as by fine or feoffment ;(_/") but a distinction has been taken between things which are forfeitures at the election of the lord, as leasing without license, waste, and the like, of which the lord only can take advantage, and those which go to the disherison of the lord by destroying his estate, as by feoffment, and formerly a fine \{f) therefore, if a copy- holder commit a forfeiture, and the lord die before entn,' or seizure for the forfeiture, he in reversion or remainder shall not take advantage of the for- feiture committed before his time ;(g-) but if the copyholder of a manor belonging to a bishopric during a vacanc)' commit a forfeiture by cutting timber, the succeeding bishop may take advantage of it ;(A) but see further as to seizure, quousque, post, § 902 ; so, a lessee for years of a manor shall iy) Tarrant v. Hcllier, 3 T. R. 162. (2) 4 Bl., c. 29 ; 2 Walk. Cop. 338; citing 1 H. P. C. c. 1, s. 11. (a) Co. Cop., s. 5y, tr. 137. (J,) Hedd v. Chalener, 1 Bro. El. 149. (c) 8 Co. 44 ; 1 Walk. Cop. 337, 333. (a) Co. Cop., s. 59, tr. 137 ; Ashfield v. Ashfield, Nov, 92 ; S. C, W. Jo. 157 ; S. C, Godb. 3G4; S. C, Latch, 199. {e) Zouch V. Parsons, 3 Burr. 1794 ; Gilb. Ten. 293, 294. (/) Tarrant v. Hdlicr, 3 T. R. 162. (e-) Lady Montague's case, Cro. Jac. 301 ; S. C, 1 Bulst. 190; see also 1 Mod. 200 ; 1 WatL Cop. 343, (A) Read v. Allen, cited Bull. N. P. 108. 468 crabb's law of real property. take advantage of a forfeiture committed by a copyholder, for he is dominus pro tempore ;{i\ so, if the lord grant to a stranger the freehold of a copy- hold in fee, though by this the tenement is divided from the manor, and not demisable by copy again, yet the grantee of the freehold shall take advan- r*fi«s~i ^^^^ °^^ forfeiture committed afterwards by the copyholder, *for he L -' ought to pay his rent to the grantee ;(^) so, if the grantee make a lease for years of the freehold, the lessee shall take advantage of a forfeiture committed afterwards ;(/) but not of a forfeiture committed before the grant, for the grant of the freehold made by the lord before entry implies an assent that the copyholder shall continue his estate, and so is in nature of a con- firmation. (m) 886. Even in the case of forfeiture for treason, the forfeiture accrues to the lord, and not to the queen, except by the express words of an Act of Parliament ;(n) but where a copyholder commits treason, and the lord aliens the manor, and afterwards the copyholder is attainted by Act of Parliament, it is not settled whether the alienee shall take advantage of the forfeiture. (n) In one case where a copyhold manor descended on two coparceners, and copyholder committed waste, or made a lease, which were forfeitures, and after one of the sisters died, held, that the surviving coparcener should not take advantage of the forfeiture, for the election to take advantage of the forfeiture must be made by them both, which could not be after the death of one of them. (o) 4. Extent of the Forfeiture. 887. Where a copyhold is holden by one tenure, it is said that forfeiture of a part is a forfeiture of the whole ;(;9) sed seciis, if a copyholder be seis- ed of several copies, as Blackacre by the rent of 3(/., and of Whiteacre by the rent of 4d., and of Greenacre by the rent of 6f/., and one of the acres is ^ *forfeited, this shall be no forfeiture of the other ;() Traverner and Cromwell, 4 Co. 27. Iq) Traverner and Cromwell, 4 Co. 27 ; see also 1 Roll. Abr. 509. (r) Traverner and Cromwell, 4 Co. 28. (s) lb. ; see also S. C, 1 Cro. El. 353 ; S. C, 3 Leon. 109 ; see 2 Ld. Raym. 1000 ; GUb. Ten. 246. COMMON COPYHOLDS. 5. Dispensing with a Forfeiture. 469 888. Forfeitures being deemed odious in tlie law, the Courts have always inclined to construe every act of the lord as indicating an intention of dispensing with or waiving the forfeiture ; therefore, if the tenant appear not in court,"and the lord, after personal warnings amerce him, this is a dis- pensation of the forfeiture ;(<) so, although it is not estreated or levied ;(m) so, the acceptance of rent after a lease made is a dispensation •,{x) so, the accepting of any services ;(?/) so, the re-admission of the copyholder who has committed the forfeiture ;(z) so, by the admittance of the heir ;(«) and so, even by the presentment of the death of the party committing the for- feiture, Tarrant v. Hellier,(i) where it is said, "Not only *admis- pggQ-, sion of the copyholder or his heir, but any recognition on the part L of the lord, would preclude him from taking advantage of a forfeiture ;"(c) so, if copyholder lets by indenture, which is forfeiture, and after surrenders to the use of J. S., and he is admitted, the lord after shall not take advantage of the forfeiture ;{d) and in Penn v. Merivall,(e) it was held that a grant of the freehold before entry for a forfeiture by leasing without license was an affirmance of the lease. So, if the lord do not enter for a forfeiture by reason of waste, and the tenant repairs, held, that the forfeiture was purged ;(/) so, although trees that were cut down for repairs were not used until five years after ;(/) so, it is said, that if a copyholder who comes to his estate tortiously commit a forfeiture, and then he that hath right release to him, that is a dispensation of the forfeiture, seel qusere.^g) 889. So, an act by a lord pro tempore, which amounts to a dispensation, will bind those entitled to the manor in remainder or reversion, but not so •as to give effect to a grant of a common law interest ;(/t) but a lord by wrong, as by disseisin, cannot do any act of dispensation to bind the rightful lord. (A) 890. So, the forfeiture must be known to the lord, otherwise any act by him amounting to a dispensation will not be deemed as such, Co. Cop., s. 61, tr. 140; but see Mantle v. Wollington,(i) where this matter was left (0 1 Brownl. 149. (u) Braunche's case, 1 Leon. 104 ; see also Freem. 517. {x) 1 Keb. 15. , , „ , (»/) Co. Cop. s. 61, tr. 140 ; Bacon v. Thurley, Toth. 107 ; Hamlen v. Hamlen, 1 Bulstr. 189 ; Eastcourt v. Weeks, 1 Salk. 186 ; Froem. 517 ; Garrard v. Lister, 1 Keb. 15. (z) Clerk v. Wentworth, Totli. 107; Milfax v. Baker, 1 Lev. 26; S. C. nom. Munifax V. Baker, 1 Keb. 26; S. C. Winch, 67 ; Pajje v. Smitii, Holt, 101. (a) Clerk v. Wentworth, sup. ; but see Smith v. , cited Toth, 107. (ft) 3 T. R. 171. (c) Per Lord Kenyon, C. J., Tarrant v. Hellicr, 3 T, R. 171. {) The conveyance by way of enfranchisement should always be taken in the name of the copyholder, and not in the name of a trustee, for in this latter case the copyhold interest would still remain, so that the wife of the copyholder, if dowable by the custom, would still remain so,(] and it will be granted as of course on the application of a tenant ;((/) and it is not necessary that there should be any suit depending ;(r) but, in R. v. Allgood,(s) the Court held, that a freehold tenant had no right to inspect the court rolls unless there were some cause depending in which his title might be involved. So, a mandamus might lie against the lord, or his steward, to compel the inrolment of a surrender, and it was refused in one case only because the , surrender had not been prepared by the steward or his deputy. (/) ■ 911. A copyholder must, in every action real, implead and be impleaded in respect of his copyhold land in the court of the manor of which it is holden, for he cannot implead or be impleaded in such case by the queen's writ;(?/) and therefore, before the 3 & 4 W. 4, c. 27, abolishing most real actions, or plaints in the nature thereof, (see Dig. P. iii. tit. Limitations,) if (w) R. V. Medhurst, (BorougJi) 1 Wils, 283. (t») 1 B. & C'. 565 ; S. C. nom. R. v. Micr and Forton, (:\Ianor, &c.) 2 D & R. 824, (o) Per Baylcy, J., R. v. Boughey, (Lord) &c.) 1 B. & C. 565 ;e S, C. nom. R. v. Mier and Forton, (Manor, &.c.) 2 D. & R. 824. ip) R. V. I.ucas, 10 East, 235. (9) R. v. Shelly, 3 T. R. 141. (r) R. V. Tower, 4 M. & S. 162; see also Freeman v. Phillips, Id. 486 ; Bateraan v. Phillips, 4 Taunt. 162 ; Rogers v. Jones, 5 D. &. R. 484.f (s) 7 T. R. 746. (0 R. v. Rigge, 2 B. &. A. 550. (u) Litt., s. 76. •■Eng. Com. Law Reps. viii. 152. 'Id. xvi. 243. COMMON COPYHOLDS. 479 he impleaded another for his tenements, *he should have a plaint in j-^,yf.f.~, the lord's court, and make protestation to sue in the nature of an L J assize of novel disseisin, &c. ;(y) and if an erroneous judgment were given, he should not have a writ of false judgment in respect of the baseness of his estate, but he must have sued to the lord by petition ;(.r) but a copyholder might have the action of ejectment, which is now the only proper action retained for trying titles to land, see ante, § 905. 912. Actions merely personal, the copyholder may sue at common ]a.w;(y'\ so, a copyholder may have case against the lord, or a stranger, for an injury done to the common belonging to his copyhold ;(z') but if lessee for years of a copyholder cuts down the trees, the copyholder shall sue in the lord's court to punish this ofTence ;(z] so, if a copyholder surrenders to the use of B., upon trust that he shall hold the land until he hath levied certain money, and that after lie shall surrender to the use of C, the money is levied, and B. is required to make a surrender to the use of C, and refuses, upon C. exhibiting his bill to the lord of the manor against B,, if B. persists in his refusal, the lord may seize and admit C. to the copyhold, for in such case he is chancellor in his own court,(a) and he may do right according to con- science ;(6) so, if a surrender be made to the use of another, without ex- pressing what estate he shall have, a custom, that the lord may grant it in fee to him for whose use the surrender was made, is good.(c) 913. If the lord refuses admittance to the heir or surrenderee, the copy- holder may sue in Chancery, and will be there relieved ;[d) but a Court of equity will not compel the *lord to admit a person who does not shew rji;--r,f.-i a colourable title, and that there is a reasonable prospect of succeed- L -^ ing at law.(e) 914. So, a court of equity will also make an order on the lord or steward to produce the court-roll for the inspection of any one claiming an interest under them ;(/) and although a Court of law, in a question between the lords of different manors, will not enforce an inspection of the court-rolls, yet a Court of equity will do so on a bill for a discovery ;(g-) but the Court refused to interfere upon a petition to have court-rolls delivered by a steward appointed by trustees to a steward appointed by a testamentary guardian, there being no suggestion of improper conduct, or advantage from the change.(/t) 915. So, a Court of equity will entertain a bill by the lord of a manor to (») Litt., s. 76. (x) 1 Inst. 64, a ; F. N. B. 12, B. (y) Co. Cop., s. 143. (z) 2 Leon. 201 ; 2 Brownl. 146 ; 1 Roll. Abr. 106. (a) Borneford and Packingfton's case, 1 Leon. 1. (/>) Ow. 63. (c) Brown v. Foster, Cro. El. 392. (d) Westwick V. Wyer, 4 Co. 28 b ; Ford v. Hoskins, Cro. Jac. 368 ; S. C, 2 Bulstr. 336 : S. C, 1 Roll. Rep. ; see also Roswell's case, Dy. 264 ; Moor v. Huntington, Nels. 12 ; Lunsford v. Fopham, Totli. 64 ; Towel v. Cornish, 2 Keb. 357 ; Noden v. GriiSths, 4 Burr. 1961 ; Atkins v. Atkins, 5 Burr. 2787 ; Gilb. Ten. 291. (e) WiddowsGU v. Harrington (Earl), 1 Jac. &, VV. 543. (/) Stacie's case, Latch, 182 ; Corbett v. Peshall, Toth. 109 ; Draper v. Zouch, Finch, 249 ; Langham v. Lawrence, Hardr. 180 ; Anon., 2 Vez. 578 ; see also Anon., Sty. 128. ig) Anon. 2 Vez. 621 . (A) Mott v. Buxton, 7 Ves. 201. 480 crabb's law of real property. discover the boundaries and description of lands, and for a commission to issue, if necessary, to distinguish freeholds from copyholds, where they are intermixed ;(j) but this will be done only under special circumstances, Bouverie v. Prentice ;{k'\ see also Rouse v. Barker,(/) Wake v. Conyers,(m) Winterton v. Lord Egremont,(n) Spier v. Crawter,(o) from which it ap- pears that equity interferes to settle boundaries only when the soil itself has been in question, or to prevent a multiplicity of actions. (p) ^ -, *916. So, a Court of equity will, under special circumstances, L -J grant relief against an act that is a forfeiture, as where waste has been inadvertently done,{q) or done by a stranger ;(r) so, in cases of permis- sive waste, equity will generally give relief ;(s) so, it has been relieved against a forfeiture, when timber on one copyhold has been cut down to be employed for the repair of another :(Q and in the case of cutting timber, it has directed an issue to try quo animo it was cut;(?/) but it will not relieve against wilful waste, nor unless a compensation can be made to, the lord;(a;) so, where copyholders are allowed by the custom to cut down, it will grant an injunction to restrain waste in favour of the remainder-man, the same as in cases of freehold ;(,y) so, a customary heir of a copyholder taking by way of resulting trust until the happening of a contingency has been restrained from committing waste ;(z) and although in Dench v. Bampton,(a) the Court refused to interpose to prevent waste, leaving the lord to his remedy for the forfeiture, and in a previous case it had been held, that a bill for discovery of waste was demurrable to,(/;) yet, in Richards v. Noble, (c) a bill by the lord against the copyholders was entertained, for an account of turves cut and taken, and an injunction granted, not waiving the forfeiture, on the prin- ciple that the forfeiture is often a very inadequate remedy. 917. Where the risrht between the lord and tenant is doubtful, a Court of -. equity will interpose to prevent any assertion *of such right until it L ^ has been tried at law;((/) see ante, § 854. So, although one tenant cannot institute a suit on an excessive fine, yet, to avoid a multiplicity of suits, equity will entertain a suit by several for the same general purpose of being relieved against an excessive fine. So, a bill of peace may as well be brought by the lord against the tenants, as by the tenants against the lord ;(e) (i) Leeds (Duke) v. Powell, 1 Vez. 172 ; Same v. Strafford (Earl), 4 Ves. 180. {k) 1 B. C. C. 201. (/) 4 B. P. C 660. (m) 2 Cox, 362 ; S. C, 1 Eden, 331 ; S. C, cited as VVebh v. Conyers, 1 B. C. C. 41. (n) Cited 2 Anslr. .392. (o) 2 Mcr.418. (/)) lb.; see also Wintle V. Carpenter, Fincli, 462; Ely (Bp.) v. Kenrick, Bunb. 322; Clayton v. Cookes, 2 Atk. 450 ; Norris v. Le Neve, 3 Atk. 82 ; Lethulier v. Castleniain, Sel. Ca. temp. Kino^, 60 ; S. C, 1 Diek. 46; Lord Abergavenny v. Thomas, 3 Anst. 668, n. (o) ; Willis v. Parkinson, 2 Meriv. 507. (9) Nasli V. Derl)v, 2 Vern. 537. (r) Taylor v. Hooc, Toth. 237. (s) Commin v. Kinsmcll, cited Toth. 108 ; Thomas v. Porter, 1 Chan. Ca, 95 ; S. C, 2 Freem. 137. (t) Nash V. Derby (Earl), sup. {u) Thomas v. Porter, 1 Chan.Ca. 95. (x) Peachy v. Somerset (Duke), Prec. Chan. 568; S. C, 1 Str. 447. {y) Cornisii v. New, Finch, 220. {z) Stansfield v. Ilabergham, 10 Ves. 278. (a) 4 Ves. 703. (6) Attorney-General v. Vincent, Bunb. 192 ; Lord Uxbridgre v. Staveland, 1 Vez. 56. (c) 3 Mer. 673. («/) Grey v. Northumberland (Duke), 13 Ves. 236. (c) Conyers v. Lord Abergavenny, 1 Atk. 285. PRIVILEGED COPYHOLDS. 481 and the Court has entertained such bills where the tenants have opposed the lord's approvements, under the Statute of Merton, see Dig, P. ii. tit. Com- mons '■,{/) and such bills may be entertained, although the parties have no greater estate than for life.(g') So, on the same principle of avoiding a multiplicity of suits, tenants of a manor have been allowed to establish their rights to the profits of a fair. (A) So, compositions between lords and tenants have been held to bind a purchaser or heir ;(i) but a decree against the lord of the manor will not bind copyholders who are no parties to the suit. (A;) 918. Equity will interpose in cases of fraud as much when it concerns copyholds as freeholds, and will set aside conveyances for inadequacy of price. (/) So, a Court of equity will correct the proceedings in the lord's court, where any thing is done against conscience, though no appeal or error lies.(m) So, where copyholds have been surrendered absolutely, and with- out an}^ condition, yet if it can be *shewn that the surrender was p;^«r.Q-| intended as a security only for the repayment of money, a Court of L -I equity will decree a redemption against the surrenderee. (n) So, it will supply a surrender in case of any defect in the presentment, or the want of surrender, in favour of a younger child. (o) So, for a widow against a col- lateral heir;(;j) but a want of surrender will not be supplied in favour of a grandchild, where the heir is not provided for;(5) but equity will, in some cases, to support the devise of a copyhold estate, supply the defect of a sur- render, though the defective execution of a devise of a freehold estate will not be aided in equity, (r) SECTION II. OP PRIVILEGED COPYHOLDS. § 919. There are two kinds of copyhold tenure, which have been distin- guished by the name of privileged copyholds : namely, — 1. Customary freehold. 2. Ancient demesne. (/■) Arthingtonv. Fawkes, 2 Vcrn. 356; S. C, 1 Eq. Ca. Abr. 103; Filcwood v. Palmer, Mor. 169 ; Hanson v. Gardiner, 7 Ves. 305 ; Powell v. Powis (Earl), 1 Y. &, J. 15U. (c) Dunn V. Allen, 1 Vern. 427 ; see also Meadows v. Pathcrick, Finch, 154. (A) New Elmc Hospital v. Andover, 1 Vern. 266. (i) Musgrave's case, Car}^, 38 ; How v. Brornsgrrove (Tenants), 1 Vern. 22 ; Cowper v. Clerk, 3 P." VVms. 155 ; Atkins v. Hatton, 2 Anst, 390 ; sec also Toth. Ill, citing Sterling V. Barton (Tenants). (k) 2 Atk. 516. (/) Wood V. Abrey, 3 Madd. 424. (m) Christian v. Corren, 1 P. Wnis. 350 ; see also Ashe v. Royale, 1 Vern. 367 ; Smith V. St. Paul's (Dean, &c.), Show. P. C. 67. (n) Clench v. Witherly, Finch, 376. (o) Rogers v. Marshall, 17 Vcs. 2!)4. ( p) Fielding v. Win wood, 16 Ves. 90; see also /3iscoc v. Cartwriglit, Gilb. 121 Chapman v. Gibson, 3 B. C. C. 229 ; Hills v. Downlon, 5 Ves. 557. (7) Rodgcrs V. Marshall, 17 Ves. 294. ()•) Brodie v, Barry, 2 V. & B. 130. 482 crabb's law of real property. I. ©ustomatn) jFrcrUoItJy. § 920. Properties of a Customary Frecliold. 921. Such Copyholders have what Kind of Freehold. § 922. How Lands of this Tenure pass. 923. iModc of pleading Customary Free- hold. § 920. "In some manors," it js said, " the tenants have the lands granted unto them and their heirs in fee, fee-tail, or for hfe or years, according to r*'7in~l ^^^^ custom of the manor, and *not at the will of the lord, according L -"to the custom in which case the rolls and copies ought to be made,(s) and these are what my Lord Coke calls ' copyholds of frank tenure,' "(t\ by which name they were distinguished from common copyholds, and, in reality, were distinguished by this property, that they were not tenants at will of the lord. Such customary freeholds still retain several of the badges of their original base tenure. Thus it was, that though their services were certain, and so far free, yel. they were villein services, and not free services. So, their mode of alienating or transferring their land was, not by the usual conveyances by deed at common law, but by surrender into the hands of the lord ; and so, in like manner, they could not either sue or be sued in the queen's court, but only in the court-baron of the lord. So, although the lands were not held at the will of the lord, and therefore the tenant could not ever have been ousted at the lord's pleasure, yet still the lands were liable to forfeiture, and the tenant might be ousted by his own default, for the non-payment or non-performance of the rents and services, which no free tenant could be by the common law. So, likewise, as a further mark of distinction by which these tenants may be known as copyholders, and not freeholders, they were not members of the county court, where all elections by freeholders are directed to be made, and were not contributary to the wages of the knights of the shire, which were formerly raised by their con- stituents to defray their expenses in Parliament ;(?/) consequently, before the 2 & 3 W. 4, c. 45, they had no vote for the election of members of Parliament. 921. But although these tenants have to some purposes a freehold, yet this is not so much a freehold of tenure as a freehold of estate ; and the bet- ter opinion is, that the freehold of such copyhold lands is in the lord, and not r*7i 1-1 if^ '•1^6 tenant, even although they pass, as is frequently the case *by '- -^ deed of grant, or bargain and sale and admittance, instead of sur- render and admittance ;(.t) but a distinction has been taken between cus- (s) West. Symb., s. 605. (I) Co. Cop., s. 32. (u) Blackst. Law Tract?, 132 et scq. (x) Stcplienson v. Hill, 3 Burr. 1273; Rcay v. Huntinpton, 4 East, 271 ; Doe v. D'An- vers, 7 East, 299 ; see also iMoor, 588, pi. 796 ; Gale v. Noble, Cartli. 432 ; Crowtbcr v. Oldfuld, 1 Salk. 3G4; S. C, 1 Lutw. 125; 2 Ld. Rayni. 1225; Glover v. Cope, 1 Sliow. 284; Husscy v. Grills, Ambl. 301; Fcnn v. MarioU, Willes, 430 ; Oliver v. Taylor, 1 Atk. 474; Somerset (Duke) v. France, 1 Stra. G54 ; Vauglian v. Atkins, 5 Burr. 2766 ; Burrell v. Dodd, 3 B. &. P. 378 ; Roe v. Vernon, 5 East, 51 ; Rae v. BrijTjrs, IG East, 406 ; Doe V. Jackson, 1 B. A: C. 448 ;; S. C.,2 D. &. R. 514 ; sed contrh, Bingham v. Woodgate, 1 Russ. &, My. 32 ; S C.nom. Iludlestonc v. Corbctt, 1 Taml. 183. EEng. Com, Law Reps. viii. 126. PRIVILEGED COPYHOLDS. 483 tomary estates held of the manor, in which case the freehold is in the tenant, or whether it be within and parcel of the manor, where the freehold is in the lord.(y) 922. In Hussey v. Grills(2r) it was held, that, where ihere is no custom 10 surrender to the use of a will, a customary freehold can only pass by a will attested, by the Statute of Frauds, or now according to the 7 W. 4 & 1 V. c. 26, see Dig. P. iii. lit. Wills. And so, in Willan v. Lancaster,(a) held, that the equitable interest of a customary freehold would not pass by a will not executed according to that statute, although common copyholds were held not to be within that statute ; and it has been held, that a cus- tomary freehold, whether strictly copyhold or not to all purposes, would pass under the description of " copyhold" in a will, the intention to pass it under that description being apparent. (6) So, it has been holden that cus- tomary or tenant-right estates, held of the lord by certain rents and ser- vices, according to the custom of the manor, were not within the Statutes of Partition, see Dig. P. iii. tit. Partition ; and consequently, where it appeared upon the face of the plea that the land was not properly freehold, the plain- tiff was nonsuited. (c) So, as customary freeholds are regulated by custom in the same manner as common *copyholds, held, that a custom in ^-,-„-, a manor, that the grantee of a customary estate, which will pass L -I either by surrender or deed and admittance, must be admitted during the life of grantor, is good. (J) 923. In one respect, namely, as to the mode of pleading, there is a differ- ence between common copyholds and customary freeholds, for a copyholder must not omit the words ad voluntatem domini ;[e\ and where these words are omitted, it will be intended to be customary freehold. (e) See also Gale V. Noble, (/) Hill v. Bolton, (o-) FoUett v. Troake;(/i) in which latter case it was held that a customary freeholder may prescribe in a que estate, which a common copyholder cannot do. Where, in a "manor, the copies of admissions Avere anciently to hold of the lord, according to the custom of husbandry of the said manor," but other copies were to hold " at the will of the lord," and all modern copies were so held, that this land was copyhold, and not customary freehold. (i) See further, as to the distinction between copyholds and customary freeholds, post, under Customary Estates and Title. (y) Manning's Exch. Pract. 42, 359, 2d ed. (s) Ambl. 301. (o) 3 Russ. 108. (6) Doe v. D'Anvers, 7 East, 299. (c) Burrell v. Dodd, 3 B. &, P. 368. {d) Fcnn v. Mariott, Willes, 430. (p) Hu^hs V. Harrys, Cro. Car. 229. ( /") Carth. 432. (e)2 Lutw. 1171. (//) 2 Ld. Rayni. 1186. (i) Bourn v. Rawlins, 3 Smith, 405, ~ 484 CRABBS LAW OF REAL PROPERTY. [*713] ni. Ancient Bcmrsnrs. §924. 925. 926. 927. 928. 929. 930. 931. What is Ancient Demesmc. §931. What Lands are Ancient Demesne. 932. Doomsday Book. ■ 933. Different Kinds of Tenants. Enumeration of Privileges belonging ' 934. to tliis Tenure. | Not to be impleaded out of the 935. Manor. Not to be impanelled on a Jury. 936. To be exempt from Tolls. To be free of Taxes. 937. May have a Writ of monstraverunt 938. May become Frank-fee. By Act of the Queen. 939. By Act of the Lord. 940. By Act of the Tenant. Effect of a Fine or Recovery. Court of Ancient Demesne not a Court of Record. Constitution of the Court. Suitors the Judges. Jurisdiction of the Court. In Cases of Ouster. When and how Ancient Demesne may be pleaded. Affidavit, &c., necessary. Cases vvlicre Ancient Demesne is a good Plea, or otherwise. Not in PersonaLActions. Duty of tlie Lord. § 924. This tenure may be considered, as to what relates to its nature ; to the privileges enjoyed by tenants in ancient demesne; how ancient demesne may become frank-free; court of ancient demesne. As to incidents of the estate in ancient demesne, see post, Customary Estati;s. 1. JVature of ^^ncient Demesne. Tenure in ancient demesne, at least the free sort of it, is a higher kind of customary freehold, and it is confined to such lands as were held in socage of manor belonging to the Crown, in the reign of Edward the Confessor and William the Conquerer, and is, therefore, sometimes designated "socage in ancient tenure. "(/c) All such lands were set down in a book called Domes- day or Doomsday Book ; namely, those which were in the possession of Edward the Confessor, under the title of Terrse Regis Edivardi, and those -. in the possession of * William the Conqueror, under that of Terrx L ^ Regis only ; and therefore, whether ancient demesne or not is to be tried by that book; but the writ does not require the production of the book itself, only a certificate of the fact frofA the treasurer and chamberlain of the Exchequer ;(/) and unless the manor is mentioned therein as Terrx Regis or Terrx Regis Edwardi, it will not be deemed ancient demesne, although the book should furnish evidence of a grant thereof from the Crown ;(7n) but this book will not show whether the lands themselves are ancient de- mesne, or not, but only whether the manor be so or not ;(n) for an acre of {k) F. N. B. 14, D. ; 2 Inst. 5 12 ; 4 Inst. 269 ; Lex Man. 26 et scq. ; Hunt v. Burn, 1 Salk. 57 ; S. C, Holt, 60 ; S. C, 1 Com. 93. (/) F. N. B. 16, C; sec also Hob. 188; 1 Brownl. 43; Holdy v. Hodges, 1 Sid. 147; S. C. nom. Holdaye v. Hodges, 1 Lev. 106. (m) Kitcli. 192, 193 ; Saunders v. Welch, cited 1 Salk. 57. (n) 2 Burr. 1048. PRIVILEGED COPYHOLDS. 485 land may be ancient demesne, though the manor of which it is parcel is not so ;(o) and if the question be, whether lands be parcel of a manor which is ancient demesne, this shall be iiie^ per pais. {p) 925. Tenants of these lands under the Crown were not all of the same order or degree. Some of them continued for a long time ^jwre villeins de- pendent on the will of the lord, and those who succeeded them in their tenure differed but in some few points. They could not maintain a writ of right close (since abolished by the 3 & 4 Will. 4, c. 27, s. 36, see Dig. p. iii. tit. Limitations) nor a monstraverunt, but were obliged to sue by plaint in the lord's court. Others were as good as enfranchised by the royal favour, and hold their lands freely by the grant of the king, being only bound in respect of their lands to perform the better sort of services, and those determinate and certain, as to plough the king's land for so many days, or to supply his court with a certain quantity of provisions, and *other Slated services, which have been changed into pecuniary r#,^'j5-] rents. The estates of these tenants pass by surrender or deed of L -' grant or bargain and sale.((j') 2. Privileges of the Tenure in Ancient Demesne. 926. Lord Coke(r) enumerates six privileges enjoyed by tenants in ancient demesne ; namely, first, not to be impleaded out of the manor ; secondly, to be exempt from juries ; thirdly, to be exempt from tolls, &c. ; fourthly, to be free of taxes and talliages by Parliament; fifthly, not to be liable to contribute to the expenses of knights of the shire ; sixthly, in case of being distrained, to join in a monstraverunt. In the first place, tenants in ancient demesne were not to be impleaded for any of their lands, or compelled to appear in any court out of the manor, but to have justice administered to them at their own doors, in a particular court called the court of ancient demesne, by a pecuhar process denomi- nated a petit writ of right close, (now abolished by the 3 & 4 W. 4, c. 27, s. 36, see Dig. p. iii. tit. Limitations,) directed to the bailiff of the queen's manors, or to the lord of the manor, if it be in the hands of a sub- ject. (r) But it must appear that the land is ancient demesne, for if a fine levied in C. P. were still in force, the lands were frank-fee until reversed, and the tenant might, therefore, be impleaded at common law ; but affidavit that the lands are reputed ancient demesne is sufficient ;(s) so, the land must not only be holden of the manor, being ancient demesne, but it must appear that the lessor of the plaintiff has a freehold, for lessee of a term cannot sue there •,(t) so, if the manor and demesnes of the manor are in dispute, they (o) 1 Roll. Abr. 321 ; see also Bio. Auncient Demesne, 15 ; F. N. B 14 ; 11 Co. 6. (p) Kitch. 192, 193, citing' 12 Ass. 18; 22 Ass. 45 ; Hopkins v. Pace, 1 Show. 271 ; S. C, Comb. 183 ; Hunt v. Burn, 1 Salk. 57; S. C. Holt. 60 ; S. C, 1 Com. 93. (9) Kitch. 158, 159. 194; F. N. B. 228 ; Co. Cop., s. 32, tr. 58 ; 4 Inst. 269. (r) 4 Inst. 269. (s) Barnes, 185. (0 Doe V. Roe, 2 Burr. 1046. 486 crabb's law of real property. ^ -, must *be impleaded at common law, and not in the lord's court, L -' otherwise the lord would be judge in his own cause. (a;) 927. So, tenants in ancient demesne cannot be impanelled on any jury at Westminster, or elsewhere, in any court, upon any inquest or trial of any cause ;(»/) and they may have a writ de nonponendis et juratis, against the sheriff' or anyone who has return of writs, and if, after all, the sheriff make a return, they may have an attachment against him ;(2;) but ancient demesne is no exemption from serving the office of constable, (o) 928. So, tenants in ancient demesne are exempt from all manner of tolls in fairs and markets for all things concerning husbandry and substance ;(6) but this privilege does not extend to him who is a merchant, and gets his living by buying and selling, but it is annexed to the person in respect of the land, and to those things which grow and are the produce of the lands ;(c) and this privilege extends as well to tenants who hold of a sub- ject as of the queen ;(f/) and so it extends to tenants in ancient demesne, whether they hold in fee, for hfe, or years, or at will;(e) so, to the lord him- self.(/) 929. Again, tenants in ancient demesne are to be free of taxes and tal- P**,,^-| liages by Parliaments, unless they be specially *named,(i^) and L -^ regularly, all general acts of Parliament extend to ancient demesne lands. (/i) So, they were not to contribute to the expenses of knights of Parliament ;(/») but before the 2 & 3 AV. 4, c. 45, they, in common with ordinary copyliolders, did not enjoy the elective franchise. (t) 930. Lastly, if tenants in ancient demesne be severally distrained for other services, than they are obliged to by the custom of the manor, they may have a writ of monstraverunt directed to the lord, commanding him not to distrain for other services ; and if he will distrain, &,c., then by a writ direct- ed to the sheritr he may command him, not to demand or distrain for other services ; and if he still persists, then he may raise the posse comi/atns, or command the neighbourhood to rescue and destroy the distress, but the usual course is, that if after the writ to the sheriff the lord will distrain, then attachment lies against him, returnable in one of the courts at Westminster, to answer the contempt •,{k) so they all, for the saving of charges, may join in this writ, albeit, they be several tenants ;(/) so, this writ may be sued ix) 1 Salk. 56. (y) F. N. B. 14, F. ; Bro. Aunc. Demn., pi. 42. (2) 1 Co. 105. {a) R. V. Bcttswort}!, 2 Show. 75 ; S. P., if not S. C, 1 Vent. 344. (6) Kitch. 194 ; 4 Inst. 269 ; S. P., Cox v. Barnslev, Hob. 48 ; Roll. Abr. 321. (c) F. N. B. 228, D. ; Ward and Knight's case, 1 Leon. 232 ; S. C. nom. Ward v. Knight, Cro. El. 227 ; 2 Inst. 221 ; 1 Roll. Abr. 321. (f/) Case of the Town of Leicester Toll, 2 Leon. 191. (e) Bro. Aunc. Demesnes, pi. 43 ; Case of the Town of Leicester Toll, 2 Leon. 191 ; 1 Roll. Abr. 322 ; Savery v. Smith, 2 Lutw. 114G. (/) 1 Roll. Abr. 322, citing 9 H. 6, 25 b. Cff) 4 Inst. 269. (A) Id. 270. (j) Blackst. Tr. 132 et seq. [k) F. N. B. 15 ; and see Bac. Abr., tit. Ancient Demesne, (B.) CO 4 Inst. 269. PRIVILEGED COPYHOLDS. 487 generally, without showing the names of the tenants ;(wi) hut in an attach- ment against the lord, the tenants suing it must be named, and those only who are specially named in the writ of attachment shall recover special damages. (71) If frank-tenants, and those by base tenure, join in a monstraverunt, the writ shall abate only as to the latter ; so, the lord shall not be put to answer until the Court be certified by the treasurer and chamberlain of the Exche- quer, that the manor is ancient demesne. {o'j *3. How ..Ancient Demesne may become Frank-fee. [*718] 931. Lands in ancient demesne may become frank-fee either by act of the queen, act of the tenant, or by act of the lord. If land which is ancient demesne comes to the queen, it becom.es frank- fee ;(;j) and so it remains, although the queen grants it in fee or for life, with or without rent reserved •,[q\ but if it be re-granted by the queen, to be held of the manor again, it becomes restored to ancient demesne ;(r) so, if the queen seised the land, and after patent repealed grant it to another ;(*) so, if tenant in ancient demesne enfeoff his lord, the land becomes frank-fee; so, if the tenancy escheat to him,(/) or the lord disseise the tenant ; so, if the lord grants the services of the tenant to another, and the tenant attorns ;(/) but if the lord release his tenant from the services for a certain time, after the time expired the land is ancient demesne again. (m) 932. So, before the abolition of fines and recoveries by the 3 & 4 W. 4, c. 74, (see Dig. P. ii. tit. Fines and Recoveries,) if a fine were levied, or a recovery suffered, of lands in ancient demesne, this made them frank-fee ;(a?) but if the lord were not a party, he might have a writ of deceit, Avhich writ, however, is abolished by the 3 & 4 W. 4, c. 27. (See Dig. P. iii. tit. Limitations.) So, a termor might also have this writ.(i/) So, an action on the case, in the nature of deceit, would have lain ;(z) but he could not have a scire facias. [a^ If, however, the lord were a party, then the lands become frank-fee. (6) *4. Court of Jlncicnt Demesne. [*719] 933. The court of ancient demense is a court-baron, and not a court of record ; in respect to which it is necessary to consider the constitution of the court; the jurisdiction of the court and proceedings therein; how the lord shall be compelled to do right ; and when and how the plea shall be removed. (m) Plowd. 129 ; F. N. B. 15, D, F. (n) F. N. B. 1 6, B. (o) Id. 16, C. (») 1 Roll. Abr. 324. (V) F. N. B. 13, C; 1 Roll. Abr. 324. (r) Kitch. 194. (s) 1 Roll. Abr. 325. (M 4 Inst. 270. (u) 1 Roll. Abr. 325. (X) 7 H. 4. 44, cited 1 Roll. Abr. 327 ; 10 Co. 50 ; 4 Inst. 270. (V) 1 Roll. Abr. 327. {z) R. v. Hadlow, 2 Bl. 1170. (r/) 3 Lev. 419. (/>) 1 Roll. Abr. 324 ; 1 Finch, Law, 15. 488 crabb's law of real property. a. Constitution of the Court. 934. Though the writ of right close, before its abolition, (see ante, § 926) were directed to the lord or bailiffs, yet the suitors are the judges ;(c) there- fore, pleading a suit there coram A. et B. hullavis, et C. et D. sectafori- bus, is bad,(f/) but coram A. et B. ballivis et ficctatoribus is well, because they shall be intended to be bailiffs and suitors also.(f/) So, coram stnechal- lo, sectaforibus, et domcsmen ;(c) so, the suitors there may act by attorney, although they are the judges. (/) b. Jurisdiction of the Court. 935. A court of ancient demesne held plea by writ of right close, in all all cases where a tenant in tail for life, or in dower of tenements in ancient demesne, was ousted and disseised; and the party ousted, or his heir, might have such writ ;(§•) and after the delivery of the writ, the demandant should make protestation to sue in form of an assize of mort d'ancestor, &c., all which writs are now abolished. (See ante, § 926.) So, the tenant might also have a bill of fresh force in this court, within forty days after disseisin, without any writ sued ;(A) so, he might have an ejcct- jj^ -. mcnt,(i) which is now *the only real action for trying titles, since L J the abolition of real actions before mentioned. So, if the lord him- self ousted his tenant, it was said that the tenant might have had the writ of right close, or an action at common law, at his election ;(/.:) but see Baker V. Wich,(/) where it was held, that the manor, and the demesnes of the manor, are impleadable at common law, and not in the lord's court ; for then the lord would be judge in his own cause. On the other side, ancient demesne \iix\d,s held of the manor are impleadable in the court of ancient demesne, and there only ;(/) but it must appear that the lands are ancient demesne, for where a fine had been levied of lands in ancient demesne, the land was frank-fee until the fine was reversed, and the tenant might, there- fore, be impleaded at common law, for the privilege of ancient demesne being established solely for the benefit of lord and tenant, it has been held that they may destroy it at pleasure. (m) 936. If tenants in ancient demesne arc impleaded elsewhere than in the court of ancient demesne, they may plead their tenure in abatement ; and ancient demesne was held to be a good plea in all cases where a recovery could make his land frank-fee, and might, therefore, be pleaded in sssizes, and other real actions, before their abolition. (;?) See ante, § 926. So, it is a good plea wherever the interest of the land is bound, or the really may (c) Jentlcman's case, 6 Co. 11 ; S. P., Abrahall and Nurse's case, 3 Leon. 63. () Morton v. Roe, 10 East, 523. (c) 3 Lev. 182. (r/) Id. 405. (e) 1 Show. 380. (/) 1 Salk. 217. {s) Carth. 220. (A) Bro. Amic. Dem., pi. 4, citing 40 E. 3 ; F. N. B. 11, L.; Alden's case, 5 Co. 105, d; Cox V. Barnsley, Hob. 47 ; Owen's case, Ow. 24 ; Godb. 64, ca. 70. (t) 4 Inst. 270. {k) Bro. Aunc. Dem., pi, 20. 37, citing 8 H. 6, 34 ; 1 Roll. Abr. 322. (/) Grace v. Grace, 1 Roll. Abr. 322 ; Pont v. Pont, T. Raym. 249. 490 crabb's law of real property. 939. Ancient demesne is not a good plea in actions merely personal, as debt upon a lease, trespass quare clausum fregit, &c. ; so, in trespass contra pacem, though the realty come in debate, yet ancient demesne is no plea, for this is at the suit of the queen, and for the good of the common- wealth ;(m) so, in a quare impedit ancient demesne is no plea, for if it should be granted, it would be a failure of right, for in the court of ancient demesne they cannot grant a writ to the bishop ;(n) so, in a writ of waste before its abolition, (see ante, § 936,) ancient demesne was no plea, because in ancient demesne they could, upon the return of the distress, not award a writ to inquire of waste, according to the statute, for the sheriff ought by the statute to go in person, which could not be supplied by their officer, and so there would be a failure of right, (o) 0. How the Lord shall be compellable to do right. P*~oo-i 940. If the lord will not hold his court, the tenant in ^ancient «- ' -' demesne may have a writ out of Chancery, commanding him to hold it, and to proceed according to law \[p\ and if then he will not hold it, he may have an attachment returnable in Q,. B. or C. P., and shall recover his damages ;(/;) so, he may have a writ to the lord, commanding him to do right, and upon that an alias pluries and attachment, (;}) or a writ to the sheriff, commanding him to take four knights, and to go to the lord's court, and see that right be done ;(/j) so, there may be a writ to the suitors to pro- ceed to execution upon the judgment there ;((7) and they cannot in that case return that it is frank-fee, for the jurisdiction is admitted by the appearance, and the plea of the defendant there ',{q'\ and if it be frank-fee, the suitors are not trespassers, where upon a writ to them they award execution ;(y) otherwise, if the land be frank-fee, and they award execution without such writ.((/) 4. Hoiv the Plea shall be removed. 941. The demandant in ancient demesne cannot remove the plea out of the court there for any cause ;(r) but the tenant may remove it for any of the causes which make it frank-fee, (see ante, § 931), (r) but he ought to' prove it to be frank-fee when it is removed, otherwise it shall be re- manded ;(s) so, he may remove the plea if there be no other but one suitor, for that the suitors are judges, and therefore the demandant must sue at common law, otherwise there would be a failure of justice ;(f) so, for default of trial there, as if the defendant pleads a foreign plea, a super' (m) Smith V. Ardcn, Cro. El. 826 ; Cox v. Barnslcy, Hob. 47 ; 1 Roll. Abr. 322. (71) Cox V. Barnsley, Hob. 48 ; 1 Roll. Abr. 322. (0) 2 Inst. 306 ; 4 Inst. 270 ; Cox v. Barnslcy, Hob. 47. (p) F. N. B. 12, D. (o) Moor, 451. (r) F. N. B. 13, B.; 4 Inst. 269. (s) F. N. B. 13, C. (0 4 Inst. 470; sed quaere, F. N. B. 13, C. PRIVILEGED COPY It OLDS. 491 scdeas goes to the lord of an ande^it demesne to surcease ;(?<) so, if he plead bastardy, for the court there cannot write to the bishop. (a?) *If the lord in ancient demesne proceed after the plea removed r-^.^^Al by recordari, a certiorari goes to C. P., to certify the tenor of the L J record removed into the Chancery, and upon that an attachment lies against the lord to answer to the queen and the party in C. P. ;(«/) so, if the lord proceed after a supersedeas. (^z^j Cu) F. N. B. 13, C. (x) Reg. 9, a. (y) F. N. B. 13, H. (z) Id. 14, A. END OF VOL. I. LAW LIBRARY OF LOS ANGELES COUNTY UMVEUSITY'OF CAUFOpxitx, ;Hn:HiHn^'?^".Hi.::Lr[ir:--;ii:;::;;tmi::j:::rJi:i5tit^^^^ aeHE« -WM