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STEVENS AND SONS, Limited, 119, 120, CHANCERY LANE. ^af» |ublisbcrs. 1898. *^* The First Edition of this Work icas brought out by Mr. William Wood/all, of the Middle Temple, in 1802, a7id a Sixth Edition by him icas published in 1822. In 1830 the Work ivas entirely re-modelled and fjreatly enlarged by Mr. S. B. Harrison, the Author of " Harrison's Digest.'' The Fifth and Sixth Editions of tJiis re-modcllcd Work icere brought out by Mr. Wollaston in 1843 and 1849, the Seventh by Mr. Horn in 1856, and the Eighth, Ninth, and Tenth by Mr. Cole in 1863, 1867, and 1870. The present Editor brought out the Eleventh, Twelfth, Thirteenth, Fourteenth, and Fifteenth Editions in 1877, 1881, 1886, 1889, and 1893 respectively. PEEFACE. The Law of Distress Amendment Act, 1895, and the Market Gardeners' Comjjensation Act, 1895, have been fully dealt with in their proper places, and the Land Transfer Act, 1897, so far as api^licable to the subject of the book, has been shortly noticed. The important question, however, which has recently arisen, as to what is the effect of the Land Transfer Act on the vesting of the freehold reversion of an intestate during the period between death and grant of administration, had escaped the notice of the Editor until the sheet for dealing with it had been printed off, and is therefore treated amongst the Addenda at p. Ixxv. Amongst the more important cases which have been determined since Lady Day, 1893, up to which date tlie last edition was brought, may be mentioned Imrai) v. Oakshette (p. 353), relating to the right of a sub-lessee to relief against forfeiture; Penton v. Barnett (p. 344), as to waiver of repairing covenants ; the Round- wood Colliery case (p. 444), as to distress on lands not demised ; Chancellor v. Webster and Potter v. Bradley (p. 445), as to illegality of distress for rent after judgment for it ; WJiite v. Southend Hotel Co. (p. 717), as to effect of covenants in lease of "tied house;" Aldin v. Clark (p. 186), as to the obligation of a lessor not to derogate from his own grant ; Hudson v. Cripps (p. 728), in which the landlord of a residential flat was restrained from letting part of it off as a club, although he had entered into no express covenant not to use the flats generally for other than residential purposes ; Ecclesiastical Commissioners v. Wodehouse (p. 29), in which the effect of the ecclesiastical law on the working of mines under a glebe was fully considered by ^Ir. Justice Romer ; Morley v. Carter (p. 826), in which the High Court, adopting a dictum of Lord "VYatson in the Scotch case of Black v. Clay, cut the knot of a difficulty inevitably arising from the Portarlington case, by deciding that the two months within which a tenant must claim compensation under the Agricultural Holdings Act run from the date of the termination of his agricul- tural onstand, and not from the date of his tenancy proper ; Holmes nQ\\«o7- vi Preface. and Formhy, In re (p. 829), to the effect that a landlord whose counter- claim overtops the tenant's clami cannot recover the balance under the Act, but must sue for it ; and Farquharson v. Morgan (p. 830), to the effect that the High Court is absolutely bound to prohibit a County Court from enforcing the award of a referee under the Act of compensation for improvements comprehended within it and compensation for improvements not so comprehended. The Forms have been carefully looked through. In view of the application of the doctrine of Spicer v. Martin (p. 707) in Hudson V. Cripps (p. 728), a clause (first inserted b}' the Editor manv years ago) expressing seemingly implied obligations of the landlord of a block of houses has been revised and added to, while Fletcher v. Nokes and Penton v. Burnett (p. 351) have necessitated a change in one of the forms of notice given in former editions under Sect. 14 of the Conveyancing Act. There is now given a form approved by the Court of Appeal in Penton v. Barnett, for which the Editor is indebted to his friend Mr. J. D. Crawford. Extracts from Statutes have been newly printed in a distinctive type where the exact words are quoted, and occasion has been taken carefully to check the accuracy of all such quotations, " short titles " of the Statutes, as well as the regnal years and chapters, being also given. The Table of Statutes is not only similarly arranged, but con- tains only the principal statutes cited. Perhaps a like new departure might have been taken with advantage in the Table of Cases, by selection for printing in it only some twentieth of the cases actually cited, but the Editor, after consultation with the publishers, did not feel justified in taking so bold a step without greater knowledge than he at present possesses of the views of his readers. In connection with Mr. H. D. Greene's bill, first introduced in 1896, and re-introduced in the present Session, to turn the landlord's right to distrain upon a stranger's goods from an absolute into a qualified one, attention may be directed to the newly-inserted com- ments of the late Lord Blackburn in Lyons v. Elliott (p. 469) on the " harsh and unjust law " of William and Mary's reign by which the sale of goods distrained for rent was first authorized. J. M. LELY. Goldsmith Building, Temple, A2}ril 18th, 1898. ( vii ) TABLE OF CONTENTS. [All the Cliaptcrs have Tulles of Contents prefixed to them.'] PAGE Eeferences to other Works viii Principal Statutes and Rules . „.., ^ ix A.— Statutes as cited by Short Titles ix B.— Statutes as cited by Eegxal Years and Chapters . . . x C. — EuLES OF Court xi D. — Rules of Lord Chancellor and Others xi Table of Principal Cases cited xii Table of All Cases cited . . . xiii Abbreviations li Historical Outline liii Leading Propositions of Statute and Case Law Ix Addenda, containing uhsen-utions on effect of Land Transfer Act on period beticeen death of Landlord intestate, and grant of letters of administration . Ixxv CHAPTER L— By whom Terms may be granted 1 IL — To whom Terms may be granted 73 III. — Of what Terms mat be granted 8i IV. — Agreement for Lease 90 V. — Lease 132 VI.— Tenancies for less Term than Years and Quasi-Tenajncies . 230 YII. — Substitution of Parties by Assignment, Bankruptcy, &c. . 254 VIII. — Modes of Termination of the Tenancy 312 IX. — Eenewal of Leases 391 X.— Bent 403 XI. — Distress for Rent 412 XII. — Replevin, and other Remedies for Wrongful Distress . . .539 XIII. — Action for Rent .-)63 XIV. — Action fob Use and Occupation ' .570 XV. — Rates, Taxes and Assessments o89 XVI. — Repair of the Demised Premises: Waste 626 XVII. — Insurance, Mode of User, Quiet Enjoyment, kc. . . . 690 XVIII. — Rights of Way, Sporting, &c 729 XIX. — Rights and Liabilities as with Third Parties . . . ,770 XX. — Rights and Liabilities on Termination of the Tenancy . . 779 XXL— The Agricultural Holdings Act ,si2 XXII. — Recovery of the Premises by the Landlord ,S35 XXIIL — Crimes of Landlord or Tenant 888 APPENDIX OF STATUTES, RULES. AND FORMS. A, — Statutes and Eules 897 B.— Precedents of Leases, &c 941 C. — Notices to Quit and other Notices , , . 980 D. — Forms in Distresses 992 E. — Forms of Proceedings tn Actions 998 F.— Forms under Agricultural Holdings Act 1016 INDEX 1023 ( viii ) EEFEEENCES TO OTHEK WOEKS. • ■ TEBATISES. Archbold's Landlord and Tenant, 3rd ed., 1864. Beaumont's Agricultural Holdings, 1883. Bingham's Digest of the Law of Landlord and Tenant, 1820. Bullen's Law of Distress, 1842. Bund's Agiucultural Holdings Acts, 2nd ed., 1883. Chambers on Leases and Terms for Years, 1819. on Landlord and Tenant, 1 823. Claydon's Law of Landlord and Tenant, 1847. Comyn's Law of Landlord and Tenant, 2nd ed., by G. Chilton, 1830. Cooke's Agricultural Tenancies, New ed. by Goldney and Griffith, [1882. Coote's Law of Landlord and Tenant, 1840. Dixon's Law of the Farm, oth ed. by Spencer, 1892. Fawcett on the Law of Landlord and Tenant, 1871. Fo^ on the Relationship of Landlord and Tenant, 2ndied., 1895. Gilbert on Rents, 1758. Griffiths' Agricultural Holdings Act, 1883. Lely and Pearce-Edgcumbe's Agricultural Holdings, 2nd ed., 1885. Little's Agricultural Holdings Act, 1883. Oldham and Foster on the Law of Distress, 2nd ed., 1889. Piatt on the Law of Leases, 1847. Redman and Lyon's Concise View of the Law of Landlord[and Tenant, 3rd ed., 1886. Soden and Smith's Law of Landlord and Tenant, 2nd ed., 1878. Smith's (J. \V.) Law of Landlord and Tenant, 3rd ed. by Thompson, 1882. Spencer's Agricultural Holdings Act, 1883, PRECEDENTS OF LEASES, &c. Bythewood and Jarman's Precedents, 4th ed., 1886, by Robbins, Vol. III., tit. "Leases." Davidson's Precedents, 8rd ed., 1876, Vol. V., Part I. Davidson's Concise Precedents, 16th ed., 1894. Key and Elphinstone's precedents, 4th ed., 1897, Vol. I, Prideaux's Precedents, 16th ed., 1895, by Whitcombe and Horsburgh, Vol. II. Sweet's Concise Precedents, 4th ed., 1886, by Tucker and Cave, pp. 434 — 537. Lely and Pearce-Edgcumbe's Agricultural Holdings, 2nd ed., 1885, App. I. Lely and Peck's " Precedents of Leases for Years and other Contracts of Tenancy and Contracts relating thereto, mainly selected or adapted from existing collections, with many additional Forms," 1889. \_Thcisc Lints may not he quite exhaust ire,'] ( ix ) TABLE OF PEINCIPAL STATUTES AND KULES. STATUTES AS CITED BY SHORT TITLES. PAGE Agricultural Holdings Act, 1883, 46 & 47 Vict. c. 61 812, 915 s. 7 825 s. 33 361 s. 34 673 s. 55 821 Allotments Act, 1887, 50 & 51 Vict. c. 48 40 Allotments and Cottage Gardens Compensation for Crops Act, 1887. 50 & 51 Vict. c. 26 .' 809 Apportionment Act, 1870. 33 & 34 Vict. c. 35 434, 435 Bankruptcy Act, 1883, 46 & 47 Vict. c. 52, s. 42 297, 913 s. 55 290,295,296,913 Civil Procedure Act, 1833, 3 & 4 W. 4. c. 42, ss. 37, 38 459 Common Law Procedure Act. 1852, 15 & 16 Vict. c. 76. ss. 210. 212 837 1860, 23 & 24 Vict. c. 126 838 Companies Act, 1862. 25 & 26 Vict. c. 86. ss. 87, 163 465 Conveyancing and Law of Property Act, 1881, 44 & 45 Vict. c. 41, ss. 10—12 267 s. 14 349 s. 18 60 s. 67 355 1892, 55 & 56 Vict. c. 13, s. 2 354 s. 3 698 s. 4 3.53 s. 5 352 County Courts Act, 1888. 51 & 52 Vict. c. 43, s. .59 871 s. 120 f^r,9 ss. 134—6 542 s. 138 859 s. 139 866 ss. 142—5 868, 869 s. 160 534 Criminal Law Amendment Act. 1885, 48 & 49 Vict. c. 69 889 Distress for Rent Act, 1737, 11 Geo. 2, c. 19, ss. 1, 2 499 s. 10 508 s. 14 571 Ecclesiastical Leases Act, 1842. 5 & 6 Vict. c. 27 26 Frauds. Statute of. See Statvtc of Frmidst. Friendly Societies Act. 1896. 59 .^"60 Vict. c. 25. s. 47 80 Game Act. 1831, 1 & 2 W. 4, c. 32, ss. 8. 11 761 ss. 30, 31. 35 762 Ground Game Act, 1880, 43 & 44 Vict. c. 47 766, 909 Housing: of the Workinij Classes Act, 1890, 53 & 54 Vict. c. 70, s. 75 185 Income" Tax Act, 1842. 5 k. 6 Vict. c. 3.5, ss. 60. 73 599 Infectious Diseases Prevention Act, 1890. 53 & 54 Vict. c. 34 889 Land Tax Act, 1797. 38 Geo. 3, c. 5, ss. 17, 18, 35 602 Redemption Act, 1802. 42 Geo. 3. c. 116, s. 126 604 Land Transfer Act, 1875. 38 & 39 Vict. c. 87, s. 1 ■")2 1897, 60 & 61 Vict. c. 65, ss. 18, 20 205 Landlord and Tenant Act. 1709. 8 Ann. c. 14 [18 in Rev. Stat.], s. 1 527 17.30, 4 Geo. 2, c. 28. s. 1 784 s. (! 399 1851, 14 & 15 Vict. c. 25 904 Table of Peincipal Statutes and Eules. PAGE Lands Clauses Consolidation Act, ISio. 8 & 9 Vict. c. IS. s. Ill) 4:^2 Law of Distress Amendment Act, 1888, 51 & 52 Vict. c. 21 iDH, DHl 1895, 58 & 59 Vict. c. 24 493, 494, 940 Law of Property Amendment Act, 1859, 22 & 23 Vict. c. 35, s. 12 220 s. 27 310 18(50, 23 & 24 Vict. c. 38, s. 6 703 Leases Act, 1845, 8 & 9 Vict. c. 124 138 1849, 12 & 13 Vict. c. 26 220 1850, 13 & 14 Vict. c. 17 221 Lodgers' Goods Protection Act, 1871, 34 & 35 Vict. c. 79 480 Market Gardeners' Compensation Act, 1895, 58 & 59 Vict. c. 75 823 Married Women's Property Act, 1882, 45 & 46 Vict. c. 75 45 1898, 56 & 57 Vict. c. 62, s. 1 76 Municipal Corporations Act, 1882, 45 & 46 Vict. c. 50, s. 108 19 Pluralities Act, 1838, 1 & 2 Vict.c. 106, s. 28 73 s. 59 26 Poor Eate Assessment and Collection Act, 1869, 32 & 33 Vict. c. 41 ... 598, 906 Poor Relief Act, 1601, 43 Eliz. c. 2 (506 1819, 59 Geo. 3, c. 12, ss. 24, 25 880 Preferential Payments in Bankruptcy Act, 1888, 51 & 52 Vict. c. <)2 536 Public Health Act, 1875, 38 ic 39 Vict. c. 55. ss. 128, 129 888 s. 211 612 Railway Rolling Stock Protection Act, 1872, 35 & 3(i Vict. c. 50 482 Rating Act, 1874, 37 & 38 Vict. c. .54, ss. 3, 5, 6 608,609 s. 9 620 Real Property Act, 1845, 8 & 9 Vict, c. 106, s. 3 135 s. 9 324, 328 Real Property Limitation Act, 1833, 3 & 4 AV. 4. c. 27. s. 7 243 s. 14 235 s. 42 489 1874, 37 A: 38 Vict. c. 57, s. 1 489 s. 2 235 Sale of Farming Stock Act, 1816, 56 Geo. 3, c. 50 899 s. 6 471 Settled Land Act, 1882, 45 i: 4(; Vict. c. 38, ss. 6, 7 7 ss. 59,60 45 1890, 53 & 54 Vict. c. 69 7 Short Titles Act, 1892, 55 & 56 Vict. c. 10 2(c) 1896, .59 & 60 Vict. c. 14 200 Small Tenements Recovery Act, 1838, 1 & 2 Vict. c. 74 877 Stamp Act. 1891, 54 & 55 Vict. c. 39 195, 936 Statute of Frauds, 29 Car. 2. c. 3, ss. 1, 2, 4 ' 135 of Marlebridge, 52 Hen. 3, c. 23 650 of Merton, 51 Hen. 3, c. 4 483 Tenants' Compensation Act, 1890, .53 & 54 Vict. c. 5 7 810 Tithe Act, 1891, 54 & 55 Vict. c. 8 621 Vendor and Purchaser Act, 1874, 37 & 38 Vict. c. 78, s, 2 2 B. STATUTES AS CITED BY REGNAL YEARS AND CHAPTERS. [Refer to Table A. for more References than one.'] 43 Eliz. c, 2, Poor Relief Act, ICOl 606 2 W. & M,c. 5 509, 897 8 Anne, c. 14 [18 in Revised Statutes], Landlord and Tenant Act, 1709... 527 29 Car. 2, c. 3. Statute of Frauds 135 4 Geo. 2, c. 28, Landlord and Tenant Act. 1730 784 11 Geo. 2, c. 19, Distress for Rent Act, 1737 499 ,56 Geo. 3, c. .50, Sale of Farming Stock Act, 1810 899 1 & 2 Will. 4, c. 32, Game Act,^1831 ". 761 3 & 4 Will. 4, c. 27, Real Property Limitation Act, 1833 243 1 & 2 Vict. c. 74, Small Tenements Recovery Act. 1838 877 1 & 2 Vict. c. 106, Pluralities Act, 1838, s. 28 73 5 & 6 Vict. c. 35, lucome Tax Act, 1842 5y9 Table of Peincipal Statutes and Kules. xi PAGE 8 & 9 Vict. c. 100, Real Property Act, 1845 135 8 & '.» Vict. c. 124, Leases Act, 1845 138 12 & i:S Vict. c. 20, ,, ., 1849 220 18 \- 14 Vict. c. 17, ,. ., 18.-,0 221 14 & 1.5 Vict. c. 25, Landlord and Tenant Act. 1851 904 15 & 10 Vict. c. 76, Common Law Procedure Act, 1852 837 22 & 23 Vict. c. 35, Law of Property Amendment Act, 1859 220 23 & 24 Vict. c. 38, „ ,, ' ., ,, 1800 703 23 & 24 Vict. c. 120, Common Law Procedure Act, 1800 838 25 & 20 Vict. c. 86, Companies Act. 1802 465 32 & 33 Vict. c. 41, Poor Rate Assessment and Collection Act, 1869 906 33 .*c 34 Vict. c. 35, Apportionment Act, 1870 434 34 it 35 Vict. c. 79, Lodgers' Goods Protecticm Act, 1871 480 37 & 38 Vict. c. 57, Real Property Limitation Act, 1874 489 37 & 38 Vict. c. 78, Vendor and Purchaser Act, 1874 2 38 & 39 Vict. c. 55, Public Health Act. 1875 612 38 & 39 Vict. c. 87, Land Transfer Act, 1875 .52 43 it 44 Vict. c. 47, Ground Game Act. 1880 766 44 & 45 Vict. c. 41. Convevancine and Law of Property Act, 1881 267 45 .t 40 Vict. c. 38. Settled Land^Act, 1882 ." 7 45 & 40 Vict. c. 50, Municipal Corporations Act, 1882 19 45 : Tyrrell 124 Bayne v. Wal ker 631 Baynes r. Lloyd 718, 720 r. Smith 476 Baynham r. Guy's Hospital 391, 393, 394 Baynton r. Morgan 324 Beadel r. Pitt 127, 600 Beale r. Sanders 136, 141, 378, 579 and Taylor's case 636 Bealey r. Shaw 755 " r. Stuart 187 Beam r. Bloom 737 Beard r. Knight 533, 535 Beardman v. Wilson 132. 269, 270. 273, 276 Beardsworth r. Torkington 730 Beatson r Nicholson 1 OS Beaty r. Gibbons 645. 795, 803 Beaufort (Duke of) r. Bates. ..653, 717 Beavan c. Delahay 453. 472. 488, 492, 795 ?•. Macdonell 48 Beck /•. Denbigh 473 r. Kebow 669, 670 Becke '•. Beaumont 846 Beckett i: Bradlev 225, 566 Beddall r. Maitland 780, 891 Bedell r. Constable 43, 458 Bedford Union v. Bedford Com- missioners 591 Beechey r. Quintery 616 Beeley r. Terry 265 Beer v. Foakes 308 Beere r. Windebanke 88 Beeston v. Stuteley 119 r. Weate 756 Begbie v. Hayne 493 Begott r. Orr 738 Beioley r. Carter 116 Belaney r. Belaney 326 i: Kellv 313 Belcher r. M-Jnitosh 628, 629 Belfour r. Weston ^37. 631 Bell r. Midland Rail. Co 772 r. Twentyman 772 Bellasis r. Burbrick 569 Bellingham r. ALsop 13 Bellringer r. Blagrave 117 Belworth r, Hassell 261 Bendyshe r. Pearce 461 Benham r. Keene 284 Benjamin r. Andrews 87 Bennet r. Ireland 437, 587. 631 Bennett r. Bayes 447. 449 r. Herring 262. 273. 336. 633, 643 r. Reeve 735 r. Robins 462 '-. Womack 127. 128. 130. 218, 411, 590, 705 Bennett's case 529 PAGE Bennison r. Cartwright 731, 732' Benson i: Chester 86, 734, 735 Bentley, Ex parte 681 Berkeley r. Hnrdy 201. .563 Bermondsey Vestry r. Brown ... 82 Bernard r. Meara 113 Berney r. Moore 839' Berrey r. Lindley 136, 232, 364 Berriman >:. Peacock 658- Berry r. Taunton 701 Besley r. Besley 228. 721 Bessell r. Landsberg 316, 317. 318. 319, 3.59, 576, 58.5 Bethell r. Blencowe 358, 364 Bettesworth r. Dean and C. of St. Paul's 115 Bevan r. Barnett 344 r. Habgood 216-. Beverley r. Lincolnshire Gas and Coke Co 571,580 Beverley's case 48 Bevil's case 525 Beytagh r. Cassidv 743. 748 Bible r. Hussey ..'. 529, 531. 532 Bickett r. Morris 753 Bickford r. Parson 263 Bidder r. Trinidad Petroleum Co. 654, 677 Biggin r. Bridge 409 Biggins r. Goode 519, 561 Bignell r. Clarke 506 Billinghurst r. Spearman 306, 309 Binckes r. Pash 748 Birch /•. Dawson 669. 671 /•. Stephenson 149. 419. 422 r. Wright 16, 164, 241. 363, 571. 578" Bird r. Baker.. .153. 160, 161. 164. 171. 202, 385 r. Defonville 358. 370. .585 ,-. Elwes 591, .592. 635. 636 r. Great Eastern Rail. Co... 134 v. Greville (Lord) 184 /•. Higginson 18. 88, 581. 760 Birkbeck r. Paget 760 Birmingham Breweries r. Jameson 717 Birmingham Gaslight Co., Ex parte^. 298,465 Bisco r. Holte 22 Bishop r. Bedford Charity Trustees 775, 777, 778- r. Brvant 512. 513 r. Kliiott 670,676,678 /•. Goodwin 412 r. Howard 233. 577. 857 r. Taylor 128. 130 Bishop of Bangor r. Parry 23, 38 Hereford r. Scory 23 Bissett r. Caldwell ". 476 Bissill r. Williamson 864, 875 Black r. Clay 825,826 Blackburn /-.Smith 69 Blackett r. Bates 120, 123 Blades r. Arundale 4 1 i Blagden r. Bradbear 97 Blake. Ex parte. M'Ewan. In re 301 /•. Blake :-^98 (-.Done 847 r. Foster 12" XVI Table of Cases Cited. PAGE Blake r. Phinn 277 Blakesley r. Wheildon 127 Blanchard r. Baker 752 r. Bridges 747, 748 Bland v. Lipscombe 738 Blandford r. Marlborough 593 Blatchford r. Cole 159, 162, 221. 454, 785, 787 r. Plymouth (Mayor) 192. 724 Blaxton v. Heath 47, 3U2 Bleakley v. Smith 95; 99 Blewett r. Millett 397 Bliss t: Collins 430 Blore V. Sutton ('>', 96. 100 Blount r. Pearman 197 Blunden r. Bough 16 Blyth r. Dennett 382, 383, 4.53 Boardman r. Mostyn 218 Boase r. Jackson 197 Bogg r. Midland Rail. Co 394 Bolton Partners r. Lambert ...67, 100 Bolton r. Tomlin 135 Bond r. Rosling 101, 10.5, 136, 141 Bonnewell r. Jenkins 112 Boodle r. Cambell ...429, 430, 438, 582 Boone r. Eyre 177 /•. Mitchell 196 Booth r. A'Beskett 416 r. Alcock 749 r. Macfarlane 786, 788 Bootheroj'd r. WooUey 230 Boraston r. Green 795, 8(t2 Boraston's case 1<>" Borgnis r. Edwards f>29 Borrough's case 340 Boulcot r. Winmill 739 Boulton r. Canon 273 r. lleynolds 449 Bourne r. Liverpool (Mayor) ... 716 Bousher r. Morgan _ _85 Bowen r. Anderson 365, 774 c. Evans ■''•">-l f. Hughes -^O'-' Bowers r. Nixon 407. 419, 420 Bowes, In re ^^06, 307 r. CroU 232 i: East London W. W. Co. 217 r. Law 706 Bowker r. Burdekin 201, 202 Bowles r. Stewart 398 Bowser r. Colby 356 Boyd r. Profaze 498 — — r. Shorrock 6S1 Boydell r. M'Michael 679. 6S6 Boyle r. Tamlyn 656 Boys r. Ayerst 99 Brace r. Wehnert 120 Bracey r. Carter 689 Bradbee r. Christ's Hospital 657 Bradburn f. Foley 793 Bradburne t: Botfield 1 70 Bradbury v. Wright 404, 405, 445, 591 Bradford (Earl) r. Romney (Earl) 227 Bradshaw r. Eyre 87 Bradsworth r. Torkington 733 Bratly r. Wilson 605 Brad vll r. Bale 299 PAGE Bragg r. Wiseman 2, 183 Braithwaite v. Cooksey 460, 489 Bramley r. Chesterton 780 /-.Palmer 427 Bramston r. Robins... 425, 447, 593, 595 Bramwell r. Lacy 708 Branding r. Kent .507 Branscomb r. Bridges 447, 521 Branscombe r. Scarborough 555 Brashier r. Jackson 719 Bravvley r. Wade 265 Breed c. Gieen 426 Brennan /•. Bolton 107 /■. Hood 455 Brereton r. Tuohey 391 Brett r. Rogers 614 Brewer r. Eaton 339 r. Hill 85, 139 Brewster r. Kidgell 195 /-. Kitchell...l82,.590,.592,603 Bridge t: Quick 354 Bridges r. Blanchard 747 — — (-.Hitchcock 393 r. Longman 711 i-. Potts 358, 374, 434 r. Smyth 452 Bridgland r. Shapter 84, 87 Briggs r. Scwry 464, 477 Brighton (Mayor, &c.) r. Brighton Guardians 244 Bringloe *-. Goodson 225, 582 Brisbane r. Dacres 596 Briscoe r. Drought 750 Bristol Corporation r. Westcott 701 (Deau and Chapter of) r. Guyse 307 (Dean) r. Jones 178,634 Brittin r. V'aux 273 Britton, In re 295 Broadbent r. Ramsbottom 750, 758 Brocklehurst r. Lawe 299 Brocklesbury i: Munn 653 Brocklington r. Saunders 232, 804 Brockman r. Honywood 602 Brodie r. St. Paul 97 Broke r. Smith 169 Bromley /-. Holder 504 Brook, Ex ])arte. Roberts, In re 294 r. Biggs 280,583 r. Fletclier 695 r. Goring 317 /-.Hewitt 126 Brooke. Re 294 r. Bulkeley 174 /-. Garrod 122 r. Noakes 503 Brookes v. Davies 428 r. Drvsdale ...127, 129, 131, 169, 194 Brown ^^. Arundell 475 1-. Bailey and Dixon, In re 466 r. Best ' 754, 755 ?-. Rurtenshaw 319,358 I-. Cocking 860,872 r. Glenn r 497 r. Joddrell 48 r. London (Mayor) 182 V. Metropolitan Counties Life Society 454, 461 Table of Cases Cited. xvii PAGE Brown r. Not ley 776 ?•. Owen 449 r. Quilter 488, (i32. 727 r. Slievill 4(iS. 47.") r. Storey 57, o9. 4o7 r. Symous 3<)2 r. Trumper Itl.S. 3()3. 3(i4, ('.28, 629 Browne r. Burton 171, 2U2 r. Dawson 781 r. Duimerv 488 r. Powell ! 448, 449 i: Sligo (Marquis)... 11 8, 119. 123 r. Tighe 392 Browning and Beeston's case ... 46 v. Dann 497 Brownlow /•. Hewley •>67 Bruce /■. Aylesbury (Marquis) ... 9 Brudnell's case 16(). 167. 313 Brunton r. Hall 742 Bryan r. Hancock Ixxvii Buck r. Xurton loO Buckljv /•. Coles 746 Btickland r. Butterfield 663,667, 669. 670 r. Hall ' 125 /•. Papillon ... 126. 128, 288. 396 Buckle c. Fredericks 709, 710 Buckley r. Pirk 309 ;•. Porter 306 r. Taylor 488 Buckmaster /•. Harrop 1"6 Buckworth r. Simpson 199 r. Thirkell 12 Budd r. Marshall 592. 614 Budloss r. Phillips 418 Bulfin /•. Dunne 275 Bull, Ex parte. Bew, In re 491 r. Hutcheus 261 r. Parker 449 r. Sibbs 569 Bullen r. Denning 190 Buller's case 520 Bullock r. Dommitt 631 Biilwer r. Bulwer 242. 790. 791 Bunch r. Kennington 473, 476 Buun /•. Channen 735 Burchell r. Clark 137, 154, 410 r. Hornsbv 652 Burdett f. Withers."^ 628 Burford v. Unwin 697 Burgess r. Boetefeur 627 Burgovne '•. Ainsworth 266 Burleigh /•. Stibbs 137 Burling r. Read 781 Burnaby r. Barsby 79 Burnby ;•. Bollett 686 Burne r. Cambridge 13 r. Richardson 454 Burnett r. Lynch 171. 273, 564 Buron r. Denman 368 Burrowes r. Gradin 55, 234. 265, 279, 363, 368 Burt r. Gray 353 r. Haslett 688 Burton v. Barclay. . .266. 278.275. 323. 326, 327 L.T. PAGE Burton r. Brown 148 /•. Dickenson 868 Burtsall r. Bianchi 93 Burv /•. Thompson 372 Busii r. Coles 169, 173 Bushell '•. Beavan 5()3 Buskin r. Edmunds 340 Bute (Lord) c. Grindall (;o6 (Marquis) /•. Thompson 411 Butler and Baker's case 456, 458 r. Meredith 850, 851 r. Mulvihill 50 /■. Swinnerton 724 Buttermere '•. Hayes 256 Buttery /•. Robinson 461 Byron /•. Acton 117 C. Caballero r. Henty 256 Cadby r. Martinez.. 165, 374, 376, 385 Cadman r. Horner 114 Cadogan r. Kennett 431 Caldecott r. Smythies ... 146, 791, 792 Callaghan r. Callaghan 113 Calyaleiro r. Paget 211 Calvert r. Joliffe 529, 532, 533 r. Sebright 724 Camden (Marquis) r.Batterbury 415, 571, 572, 573 r. Morton 438 Campbell r. Lewis 173, 272, 727 r. Loader 860, 865 - /•. Wenlock 184 Cannan /■. Hartley 316. 320.575 Cannock /■. Jones... 169, 179,180,181, 633, 634 Cantrell i: Windsor Union 575 Cape r. Scott 733 Capel r. Buszard 491, 492 Capenhurst v. Capenhurst 172 Capron r. Capron 434, 435 Cardigan r. Armitage 191 /-.Montague 218,219 Cardwell >: Lucas 201, 263 Carlisle Cafe Co. and Todd r. Muse Brothers k. Co. 150 (Mayor) r. Blamire 18 r. Whaley 205 Carlton r. Bowcock 225, 263 Carlyon r. Loyering 752, 753 Carmarthen (Mayor) r. Lewis... 88 Carnaryon (Earl) r. Villebois ... 319 Carpenter /•. Collins 241, 242 r. Cresswell 177 r. Parker... 36, 55, 724, 728 Carr r. Benson 134, 713 r. Lambert 734 r. Levingston 100 Carriage Co-operative Sui^ply Association, In re, Clemence, Ex parte 466 Carrick r. Blagrove 567 Cartanr. Bury 106, 122 Carter r. Carter 428, 557, 603 r. Ely (Dean and C.) 123 h XVlll Table of Cases Cited. PAGE Carter v. Hughes 283 V. Warne 271 Cartwright r. Smith 502 Cartwright's case 13 Carus, In re 794 Carver r. Richards 213 Cary r. Gary 805 r. Matthews 542 Casey c. Hellyer 843 Cashell '•. Wright 750 Castleman '•. Hicks 509 Catling r. King 94 Catou r. Caton 100, 107 Catt r. Toiuie 704, 715 Cattley r. Arnold 230, 231 Caudell r. Shaw 302 Caver. Hastings 97 Chadwick r. Clarke 197 r. Maden 68 Challoner r. Davis 326 Chaloner r. Bolckow 608 Chamber Colliery Co. r. Hop- wood 754 Chambers r. Kingham 328 Chancellor r. Poole 171, 273, 274 r. Webster 445 Chandler r. Uoulton 519, 561 Chandos (Duke of) c. Talbot ... 6.58 Chaniion r. Patch 647, 658, 659 Chanter r. Dickinson 101 Chaplin r. Southgate 723 Chapman and Hobbs. In re 406 r. Iteecham... 1(!0, 458, 461 r. Bluck 140 r. De Tastet 689 r. Towner 142. 364 r. Turner 140 Chappell v. Gregory 638 Charlewood ;;. Bedford (Duke")... 94 Charsley r. Jones 185 Chasemore r. Richards 752, 757 Chattield /•. Parker 284 Chauntler r. Robinson 773, 777 Chawner's Estates. In re 7.9 Cheesman /•. Ilardham 735, 736 Cheetham r. Hampson ...(!48, 656, 777 Cheshire Lines Committee r. Lewis 164, 359 Chester r. Wortley 851 Chesterfield and Midland Silk- stone Collry. ("o. /•. Hawkins 169 (Earl of) r. Bolton 631 Chesterman r. Mann 122 Chew r. Holroyd 863 Chichester r. Lethbridge 745 Chilcote r. Youl.lou 879 Child v. Chamberlain ... 493, 508. 512. 516 ■ r. Comber 94 Chinnock r. Ely (Marchioness) .. 104 Chipperfield r. Carter 112 Chowne r. Baylis 50 Chrisfs College (Govrs. of) r. Martin 843 Hospital r. Harrild ... 404, 591, 603 Chri.sty r. Tancred 577,584,783 PAGE Church r. Brown ... 97, 127, 128, 694, 699 Churchill r. Evans 656 Churchward r. Ford 570, 571, 572, 573 Claridge r. Mackenzie ... 225, 281. 425 Clark /•. Grownshaw 677 r. Gaskarth 470, 471 Clarke ;■. Arden 66 r. Calvert 471 r. Cogge 86, 87, 745 r. Dicksou 69 r. Fuller 67,94,96,136 /■. Glasgow Assurance Co. 631 c. Hart. 686 r. Holford 406,473,512, 685 r. Hougham 428 r. Millwall Dock Co 474 r. Moore 99, 119. 122. 234 /-.Roche 199 r. Roystone 644. 792. 802, 805 r. Smith 418 r. Sydenham 162 V. Tinker 736 r, Westrope 803,805 Clarkson r. Woodhouse 740 Clavering r. Clavering 648 Clay r. Southern 68 Glaydon r. Green 258 Clayon v. Leach 228 Clayton t: Blakev 141, 366 r. Corby 729,744 r. Gregson 145 r. Illingworth 105 Clayton's case 160 Gleaton r. Gowcr 118 Clegg V. Edmondson 397 ^ (-.Hands 174,716 Clement v. Milner 484, 493 Clements v. Lambert 151 r. Welles 277 Clench r. Dr. Arenberg 238 Clennel /-. Read 595, 603 Clerk V. Clerk 13 r. Polady 570 Clermont i: Tasbursrh 114 Clifford r. Turn-U 97 r. Watts 412 Clifton v. Walmsley 145 Climie v. Wood 665, 666 Glinan r. Cook ...67, 96. 98, 100, 119 Cline's Estate. Re 435 Glive r. Beaumont 110 Glossy. In re 158 Clow V. Brogden 641 Clowes V. Hughes 248 Glulow. Re 423, 433 Glun's case 409, 423, 433 Coal Consumers' Association, In re 466 Coates r. Collins 156, 168 Coatsworth v. Johnson 91, 232 Cobb V. Stokes 231. 364, 786 Cock burn. Ex parte, Re Smith... 169 Cocker r. Cowper 756 r. Musgrove 529, 532. 533 Cockerell v. Owerell 240 Table of Cases Cited. XIX PAGE ■Cocking c. Heathcote 153 r. Ward 101,257 •Cockson v. Cock 173 Codd r. Brown 793 €oe V. Clay 719, 728 ■Cog^an r. Warwicker 580 Coghill f. Freelove 305, 308 Colbron v. Travers 000 Colby r. Gadsden 119 €ole r. Forth (149 r. Green ()49 V. Sury 423 i: West London and Crj-stal Palace Rail. Co 148 Cole's case 173 Colebeck r. Girdlers' Co 638 ■Colegrave v. Dias Santos ()79, 682 Coleman v. Bathurst 760. 762 r. Foster, Bart 134 ■Coles u. Evanson 314 V. Pilkington 108 V. Trecothick 67, 100 Coll r. Coventry (Bishop) 459 ■CoUen f. Gardiner 67 f. Wright 68 ■Colles ^^ Evanson 316 Collett V. Curling ...97, 358, 423, 586 CoUey f. Streetou 639 Collier r. M'Bean 116 r. Mason 114, 120 r. Nokes 422, 487 Collins and Harding's case 430 V. Barrow 184 ?•. Blantern 171 (-.Collins 120 - (-.Crouch 172.309 (-.Harding 89.431 r. .^illye 7(12 (-. Wilimott 101 Collison V. Lettsom 1 76 Colville c. Hall 33.'. Colyer r. Speer 531. 532 Combe's case ()8 Commins (-. Scott 94 Commons r. Marshall 214 Conan r. Kemise 173 Congham v. King 275 Congleton (Mayor) i\ Pattisou... 174, 176 Connolly v. Connolly 52 Connor (-. Bentley 551 Conquest r. Ebbetts (141 Constable (-. Constable 435 V. Nicholson 82 Cooch V. Goodman. ..136, 200, 201,263 Coode '». Johns 517 Cook V. Booth 393 r. Cook 529 v. Enchmarsh 847 v. (luerra 266. 423 (.- . Humber 237 (-. Moylan .54, 222, 279, 581 V. Rosslyn (Earl) 533 i: Waugh 114. 117 Cooke V. Loxley 225. 263, 280, 582. 856 r. Wilson 68 Coombe v. Greene 179. 634 Coomber v. Howard 97. 423 PAGE Coombs V. Beaumont HSO Cooper, Ex parte. Re North Lon- don RaiL Co.. ..36. 216.221 r. Blandy 582. 583 r. Crabtree 771 (-. Hood 97 c. Hubbuck 731. 743, 748 (-. Marshall 733 (-. Pearse 809 (-. Phibbs 396 '-. Robinson 160, 202 /-. Twibill 422, 715 Copland r. Laporte 565 Copley (-. Hepworth 140 Copp (-. Aldridge 774 Copper Miners' Co. v. Fox ...111. 371, 580 Corbauld (-. Leigh 771 Corbett, Ex parte, Shand. Re ... 30(t • r. Howden 57 Cornf oot c. Fowke 69 Cornish (-. Cleife 179. 631 (-. Searell 280, 281 , 326 c. Stubbs 11, 795 Cornewall r. Dawson 761 Corn well, app., Sanders, resp. ... 763 Corpe (-.Overton 75 Corrigan /-. Woods 58o r. Sagar 194 Cory /-. Bristow 133 Cosh's Contract, In re 698 Cosser c. Collinge 277 Coster c. Cowling 196 (-. Wilson 504. 505 Costigan (-. Hastier 116. 117 Cotesworth /-. Spokes 338. 339. 342 Cother c. Merrick 414 Cotsworth c. Bettisou 525 Cottee (-. Richardson 139, 153 Counter (-. Macpherson 11 C Coupland /-. Arrowsmith 97. In9 c. Hardingham 777 V. Maynard 452 Courtauld (-. Legh 748 Cousins r. Phillips 40i» Cowan c. Milbourn 102. 211. 568 Coward c. Gregory 178. 633. 635, 640, 643 Cowell. Ex parte 681 Cowen r. Phillips 136, 141 Co wlam V. Slack 735 Cowley (-. Sunderland (Mayor). . . 81 c. Watts ". 110 Cowling f. Higginsou 742 Cowper I'. Fletcher ...14. 53, 455, 460 Cox T. Bailey „... 522 ■ (-. Bent" 141. 232. 451 (-. Bishop !.269. 275 (-. Brain 85 ■ '-. Glue 771 c. Knight 574. 583 '(-. Leigh 529 (-.Painter .509 Coxe c. Day 219 Crabtree c. Robinson 498 Craig's Claim 429 Cramer r. Mott 518 ?;2 XX Table of Cases Cited. PAGE Crane r. Batten 692 /-.Taylor 24 C!ra\vf Old r. Newton 630 Crawley r. Price lit-1, 694 Creak r. Brighton (JJ.) 8S3. 884 Creswell /■. Davidson 27S. S'jO Cripps '•. Blank 572. .")78 Croft V. London and County Banking Co 3.")6 /•. Lumley 331, 342, 700. 715. 850, 857 tirof t's (Lady) Executors .308 Crofts '•. Haldane 747 Cromniellin Estate 215 Cromwell (Lord) /■. Andrews . . . 423 Cromwell's case 149 Croombe '•. Lediard 118 Cropp V. Humbertou 422 Crosbie r. Tooke 126 Crosier r. Tomkini-on 475. 476 Cross. In re 39 r. Egliii 147 r. Jordan 338 Crosse '•. Young 723 CroHstield r. Morrison 181 Crossley r. Lightowler 753 Crouch r. Fastolfe 425 t\ Tregonnlng 272 Crowdcr c. Self '. ,520 Crowley *•. Vitty ...234. 316. 377. 568 Crowther r. Ramsbotham 511, 520 Crump '•. Temple 91 Crusoe /•. Bugl)y 699 Crux /•. Aldred 420 Cubitt ;•. Porter , 655 Cubitt's case 456 Cuckson /•. Winter 493 Cudlip r. Eundall 1S9. 239 Culling r. TuflEnall (i68 CuUwick /■. Swindell Wtii CumVierland '•. Powes 803 Cuinbeiland Union Bank Com. v. Maiy])ort Hematite, kc. Com. 682 Cumberland's (Countess) case ... 6.58 Cumming r. Bedborough 594. 595. 599. 600 Cundley r. Sharpley 844 Curling r. Mills 149 Curtis r. Spittv 275. 582 r. Wheeler 15. 235,4,54 Cust r. Middleton 35 Cuthbertson r. Irvinir ...224. 225. 226. 264. 274. 439, 56(). 567 Cutting i: Derby ...369. 422, 785, 786. 787 D. Daglish. Ex i)arte 680 Daintry r. Brocklehurst 771 Dalby r. Hirst 644. 792, 804 Dale r. Lister 118 Dallman r. King 179 Dalston r. Reeve 567 Dalton r. Whittem...472. 473. 665, 685 Dames r. Heath 194 Danii)ier r, Pole 194 PAGE Dancer r. Hastings 62. 462 Dane (Viscountess) c.Kirkwall 76, 586 Danford r. McAnulty 853 Daniel /'.Anderson 745. 748 /•. Gracie 4o4. 407. 451 /■. Hill 167 /•. Stepney 443. 444. 491 • • -r. Woodroffe 848 Daniels v. Davison 95, 241, 255 v. Potter 777 Dann r. Spurrier 165, 189. 385 Dansey r. Richardson ..238. 890 Darby r. Harris 468. 472. 665 J-. Whittaker 120" Dare r. Heathcote 742 Dargan /•. Davies 506 Darley. k.c.. Co. r. Mitchell 772 Darling r. Clue 742 Darlington r. Hamilton 106, 119. 260. 277. 278 r. Pritchard 224 Darrell r. Tibbits 691 Daubuz r. Lavington 251. 844 Davenant r. Salisbury(Bishop)... 593 Davenport >: Resr....." 210, 342 /-.Walker 122 Davidson /-. Cooper 211. 212 Davies /-. Aston 483, 485 r. Connop 802 /-. Davies 5, 6. 10, 651 r. Edmonds 533 r. Evton 334 r. Fitton 119 r. Jones 201, 202 r. Powell 47:i /-. Sear 87, 151 r, Stacey 415 r. Underwood ()41 r. Vernon 262 /-. Williams 731, 733. 7.50- Davis, In re. Pollen Trustees, Ex parte 477, 530 /-. Burrell 33.5, .594, 780, 781 r. Eyton 287, 791 i". Gyde 426- /-.Hone 106 V. Jones 663, 6()8 /-. Leicester Corporation 19 /-. Morirau 577, 581 /-. Nisbett 261.695 V. Shepherd 113 Davison v. Gent 322 V. Stanley 316, 318 r. Wilson 781 Davy, Ex parte 887, 892 Dawdv, In re 794 DaweV. Cloud 194 Dawes /-. Thomas 620 Dawson v. Crfipp 523. 524 V. Dyer 193, 722 r. Fitzgerald 766- r. Lamb 577, 579 r. Linton 596 Dav /-. Austin 669 — - r. Dav 244 /-. Duberley 302 /-. Fynn 147 Dayrell /-. Hoare 215, 761 Deacon /-. Penniall 199' I Table of Cases Cited. XXI PAGE Dean r. AUalley 662, 676 /•. Cartwright 'Mii Dean and Chapter of Westmin- ster /■. Pierce ')7') Deane /■. Clayton 764 De Brassac r. Martjn 105 Decharms '•. Horwood 15 Deeble /•. McMullen 682 Deelands '■. Gregory 68 Delanev r. Fox '225. 279. 48'J, 567, 877 De Medina r. Norman 101, 259 r. Poison 240. 578, 586 De Xicolls /■. Saunders 266. 423 Denbv r. Moore 596. 600, 603 Dendy r. Nicholl .341. 342, 382 Denn r. Cartwright 164 /•. Fearnside 217, 240 '•. Hdpkinson ]4(i, 375, 411 r. Kemeys 139 '". Rawlings 234 '•. Walker 375 Dennett r. Atherton 721 Denton r. Richmond 419. 422 Derby (Earl) r. Taylor ' 270 Derislej' r. Custance 303 Devine. Ex parte 298 Devonshire (Duke of) /■. Barrow Hematite Steel Co 608 Dibble r. Bowater 422. 487. 500 Dick r. Tolhausen 584 Dickinson /•. Grand Junction Canal Co 752 Digby r. Atkinson 233. 632 Dilkes '•. Broadmead 311 Dimich r. Corlett 419 Dimmock r. Hallett 118 Dinsdale r. Isles 241 Direct Spanish Telegraph Co. r. Shepherd 592, 618 Dixon r. Baty 855 /•. Harrison 454, 456 r. James 732 /•. Smith 528 Dobbvn r. Somers 84, 87 Dobell c. Hutchinson 98 Dobie r. Larkin 567 Dobson /■. Blackmore 772 Dod /•. Monger 525 r. Saxby 528 Dodd r. Ackiom 321, 324 r. Burchell ... 151. 74.5, 746, 757 /•. Morgan 518 Dodson r. Sammell 310 Doe r. Abel 193, 385. 717 (-.Adams 335,336 r. Alexander 337, 340 r. Allen 330, 341, 34.5, 711 '•. AUsopp 205 r. Amev... 136. 142. 231, 329, 378 /•. Anaell 440 /■. Archer 361, 373. 385 /•. Baker 3.o9J 368 r. Bancks...23, 210, 330. 335, 711, 713 r. Barber 246 /•. Barton 57, 279 '•. Bateman 269, 335 /•. Batten 343, 383, 418, 788 PAGE Doe r. Bayley 365, 373 • /•. Beckett 23G t: Bell ... 135. 136, 232, 2^0, 35S. 360. 37S /•. Beuham 236, 403, 446 '•.Benjamin 324 /•. Benson 146, 375, 411 /•. Bevau 287, 288. 289, 701 '■- Biggs 363. 37(> /■. Birch... 145, 210, 331, 341, 343 /■. Birchmore 851 /•. Bird 629,659. 687. 709 /•. Blakewav 330 r. Bliss ....' 703. 711 r. Bluck 364 r. Bold 367 /•. Bond 333, 626 '■. Bousfield 65, 66 /•. Boulton 366 /•. Bowditch ... 192, 329, 332, 339 r. Brawn 282 /•. Bravne 854 r. Brett 240, 246 /•. Bridges 25. 319 - — /•. Brindley ... 344, 345. 626, 643. 843 /•. Bromlev 854 r. Brown"! 162, 222, 223, 280, 841 r. Browne 136, 357 '•. Brvdges 341 r. Bucknell 57, 59. 234, 367, 388 /■. Burlington (Earl of) ... 649 r. Burrough 219 r. Burt 144, 150 >:. Burton 252, 387, 8.54 /•. Butcher 10 /•. Butler 375 - /•. Byron 338 — — '•. Cadwallader 58. 247 /•. Calvert 217. 376. 382 /•. (]arew 144, 192, 332 /•. Carter 16, 27. 58, 241, 244, 390, 700 /•. Cartwright ' 139 /•. Catamore 195 • /•. Cavan (Lady) 218 /•. Cawdor (Earl) 388, 389 '•. Chamberlaine 252, 366 /•. Chambers 18 r. Chaplin 369 /•. Church 10. 373 /-.Clare 66 '■. Clarke 167. 287. 313, 704 ■ r. Clifford 855 r. Cockell 33, 363 /•. Cooper 388, 850 /•. Corbett 364 r. Courtenay 318 r. Cox 239, 240, 247 r. Crago 141. 233, 234 i: Creed 417, 851 /•. Crick.. .370, 371. 380, 381, 383, 3S4 r. Ci'ouch ()59 V. Culliford 379 V. Danvers 330 i: David 334 xxn Table of Cases Cited. PAGE Doe /•. Davies 247. 250, 445, 852 r. Davis 834 r. Day ... 160, 1117, 210, 217. 250, 251 r. Deny 140 ■ /•. Dixon 385 r. Dobell 35<». 378 /■. Dodd 140, 154 /■. Donovan 358, 378 r. Donston 282 r. Dunbar 380 r. Diirnford <>43 r. Dvson 33!) r. Edear 252. 366 r. Edwards 54, 155. 235, 280. 281,335,582, 847 r. P]lsam 331, 707 r. P]rrington 13 /•. Evans 2, 387, 388, 701 r. Eykins 345 >.: Fiynn 329. 387 r. Fonvood 318, 363. 368, 379 r. Foster... 34, 3(;8. 369, 372, 376, 575 r. Francis 3()8 /•. Franlvis 279 r. Franks 338, 339, 857 r. Frowd 245, 387, 388, 389 r. Fuchau 338 /•. Galloway 148 /•. Gardiner 369 r. Gee 849 /". Geeckic 234 r. Gilbert 216 r. Giles 366 r. Gladwin ... 277, 331, 344. 346, 348, 693. 857 r. Glenn 304, 325 r. Godwin 332 /•. Goldsmith 335, 336 • r. Goldwin 250, 368, 371, 786 r. Goodier 247, 366 r. Gower...33, 236. 356, 358, 387, 388 r. Grafton 358, 377 '•. Graton 237 r. Green 163, 164, 231, 362 V. Groves 239 r. Grubb 387, 388, 390 r. Guest 97, 129, 188, 705 r. Guy 53 r. Hales 57, 247, 367 r. Hall 382, 855 r. Hare 428 r. Harvey 416, 417 r. Hawke 704 /•. Hazell 365 r. Hellier (\(\, 330. 740 r. Hellings 368 r. Hilder". 284, 367 v. Hilev 34, 575 r. Hinde 403 r. Hodgson 842 r. Hogg 700 r. Horn 360, 655 r. Howard 377 r. Hoddart 852 /•. Hughes... .58, 369. 377, 379, 851 r. Humphrey 383 PAGE- Doe r. Hunt 187, 384: r. Hurst 848 r. Ingleby 334 v. Inglis 372 V. Jackson... 252, 371, 627, 629, 786. r. Jameson 851 /-.Jenkins 4,10 r. Jepson 333,843 r. Johnson 161, 344, 377, 405 r. Johnston 320. 359- r. Jones ... 62, 240, 282, 330, 366, 344, 629, 643, 693.. 781, 782, 857 r. Keeling 707 r. Kennard ... 181, 193, 717, 8.54: /•. Kightley 374, 379 r. Kin'j: 854 r. Kneller 332, 407 r. Knight 202" r. Lamb 375 r. Lamblej' 37(i r. Laming' 693. 69f>- /-. Lawder 241, 2.53. 364, 366 r. Lawrence 168, 335 r. Lea 223. 273. 374. 378 r. Leach 855- r. Leatherhead 281 r. Lee 145 /■. Levi 369, 381 r. Lewis... 57, 33(), 345, 356, 366,. 643, 839, 854 /•. Lightfoot ■ 250 '•. Lines 374, 378 /■. Litherland 390- r. Llovd 74, 84, 88, 408 r. Lock 168, 190, 191 /■. Long 387,388,389' r. Lucas 380 r. M'Kaeg 240, 242, 366- r. Mainby 231, 234, 358 r. Maisey 366 r. Marchelti 324, 332, 400- r. Massey 740, 782 r. Masters 337,857 r. Matthews 374, 37" /•. Meu.x 179, 343, 633, 643 r. Mcvler 3, 431 r. Miles 364 r. Miller 2.-.2 r. Mills 387 r. Milward 316, 318, 320, 3.59, 373, 374, 376- r. Jlitchcll 280, 455 /•. Mizcm 369,851 r. Moffatt 59, 232, 364 r. Morphett 375, 379 r. Morris 65. 740- /•. Morse ...231. 233. 234. 245, 378 /-.Moves 782 r. iMurrell 246. 781 /-. Nainl)v 164 /-.Old ..' 343 /-. Ollev 248. 366- /-. OngIey...59. 224. 234. 335. 369, 370 /-.Owen 284 /■. Oxenham ...440. 489. 490. 858 /•. Palmer 383 /-. Parker 387 Table of Cases Cited. XXlll PAGE Doe r. Parry 284 r. Pasquali 887, 388 r. Paul 341, 422 c. Payne 702 r. Peck 842, 344, 693, 8r,7 /•. Perrin 374 r. Phillips 193, 240, 329, 717, 845, 855 r. Pittman 388,389 c. Poole 318 r. Porter. . . 230, 304, 360, 363, 390 r. Powell 226, 329. 699 r. Price ...238, 240, 241, 660, 661 r. Prideaux 'Mi r. Pritchard 5U, 334. 341 r. Pullen 253 *■. Pulman 784 r. Pyke 323 r. Quiglev 246. 366 /•. Radcliffe 417 r. Raffan 3.59, 365 r. Read 369 r. Rees 334, 341 .342. 78 1 r. Reid !.716 r. Rendle 213 r. Rhodes 377 r. Rhys 85(1 f. Ricliardson 159 r. Rickarby 7(i2, 85(i r. Ridout 319 /•. Roberts 41, 230, 390 /•. Robinson 368. 369 r. Rock 240. 244, 2.52 c. Roe ... 138, 252, 269, 275. 284, 337, 338, 339, 340. 387, 840, 841, 844, 846, 848, 850, 851, 867 i: Rogers 36. 417 r. Rollings 4, 387. 388, 389 r. Rugeley 182 r, Rugeley (Churchwardens, &c.) 183,715 r. Samuel 161, 233. 363, 373, 378 r. Sandham 218 r. Sayer 246, 364, 366 r. Scott 365 r. Seaton 12. 173. 225 r. Selwyn 161 r. Shadwell 387 r. Sharpley 387, 863 r. Shawcro.ss 340 r. Shewin 693 r. Skirrow 56, 225 r. Slight 138 /•. Smaridge ... 164. 231. 234. 245, 8.58. 362 r. Smith. ..175, 212, 282. 280, 281, 282, 288. 364. 875. 377, 379 r. Smythe 851 r. Snowden 217, 877 r. Somerton 380 r. Somerville 360 r. Spence 877 /•. Spiller 879 r. Spry 70 7 c. Stagg 316 V. Stanion 2.52, 321, 388 PAGE Doe r. Stanton 252, 846, 849 r. Stapleton 161 - r. Steel 376,383 r. Steele 153 1: Stennett 240, 366, 857 r. Stephens 218, 649 r. Stevens 332 f. Stradling 846, 849 r. Stratton 232, 245, 364 /•. Strickland 64 r. Sturges 53 /•. Sumrnersett...l3, 165, 869, 386 r. Sumner 236 r. Sutherland 851 r. Sutton 627, 643, 694 r. Taniere... 10, 23, 136, 141, 221, 871 r. Tatchell 53 r. Terry 83, 863, 868 r. Thomas... 22, 36, 212, 239, 241, 242, 286, 315, 445 r. Thompson... 59, 60. 97, 224, 246 r. Tidbury 740, 782 c. Timothv 375 *•. Tindalf 854 r. Tom 248, 366 — ■ — '•. Tressider 66 r. Turford 382 r. Turner 241,244,245,246 r. Ulph 123, 160, 693 r. Vince 374 ■ ■ r. Wainwright 854 r. Walker 221, 827, 4.54 r. Walters 368, 369 r. Wandlass 338. 340 r. Ward 369 r. Watkins 870, 874, 377. 380, 881 /•. Watt li»4. 331 r. Watts... 10. 221, 288, 284, 245, 360, 877. 703 r. Webster 144. 148 *•. Weller 10, 46, 59, 284. 245, 360, 378 r. Wells 387, 855 r. Wharton 62, 284 r. White 214 '•. Whitroe 225 /•. Whitt 279 c. Whittick 888 ■ r. Wiggins 280. 576. 582 r. Wilkinson 246, 360, 373 - r. AVilliams ... 146, 192, 218, 369, 390. 781. 856 r. Wilson 840 (-.Withers 215 r. Wombwell 375 r. Wood... 230, 237, 239, 322, 363, 866, 890 c. Woodbridge 344, 711, 857 r. Woodman 367, 370, 381 r. Worsley 699 r. Wrightman 870. 875. 879 r. Wyndham 227 r. Yarborough (Lord) 23, 27 Doherty r. AUman 647 Dolby 7-. lies 576, 583 Dollen r. Batt 414, .56.5. .566, 567 Dolling r. Evans 96 XXIV Table of Cases Cited. PAGE Doloret 7-. Rothschild 123 Donegal (Marquis) r. Grey 417 Donellan /;. Read 93, 415 Doran r. CaiToU GoS Dorrell v. Collins 189 Dosse r. East I. Co 239 Dougal f. McCarthy 233 Doughty r. Bowman 175, 17(5 r. Stiles 62 Douglas r. Wiggins 653 DoweU r. Dew 108, 124, 397 Dowes r. Dowling 580 Downe (Viscount) r. Thompson 586 Downs r. Cooper 225 Dowse V. Cale 632 r. Earle 630,632 Drake v. Mitchell 427. 445 Drant r. Brown 101. Ill, 198 Draper r. Crofts 577. 783, 785 r. Thompson ^.496, 518 Drew /•. Bayly 53 Drewitt r. Sheard 754 Druce r. Denison 302 Drury r. Macnamara 105, 136, 141, 719 r. Molins 654 Drury Lane Theatre Co. /-.Chap- man 88, 581, 587 Duberly r. Page 739. 740 Duck r. BraddvU... 196, 529. 530. 533, 52.S, 678 Duddell c. Simpson 277 Dudden v. Glutton Union 750, 758 Dudley r. FolHott 723, 727 (Lord) /■. \Varde(Lord) ... 669, 670, 675 Dugdale r. Robertson 188 Dumergue r. Rumsey... 472, 676, 677, 678 Dumper r. Syms 7(ll Dumpor's case 69(5 Duncan r. Meikleham 496 Dungay r. Angove 570 Dunk r. Hunter 445, 1.50, 451 Dunn V. Di Nuo vo 567 r. Flood 117 r. Sayles 188 Dunraven (Earl) /•. Llewellyn... 735 Duppa r. Mayo 343, 422, 423. 487 Durell r. Pritchard 103 Durham and Sunderland Rail. Co. >: Walker 188. 772 Dyas r. Cruise 67, 100, 397, 417 Dyer r. Carter 746 r. Green 194 Dyke, Ex parte, Re Morrish 294 Dykes c. Blake 259 Dynevor (Lord) c. Tennant 326 Eadie v. Addison 1 29 i". Atkinson 112 Eadon r. JefPcock 188 Eads V. Williams 122 Eagleton r. Gutteridge...211, 279, 452 Earle r. Maugham 595 PAGE East r. Harding 64 East and West India Dock Co. v. Hill 295 East India Co. v. Vincent 10 East London W. W. Co. c. Mile End Old Town Trustees 143 Eastcourt r. Weeks 66 Easterby r. Sampson 174, 267 Eastern Counties Rail. Co. r. Broom 542 Easton r. Pratt 65, 214, 215, 628 Easton Estate Co. r. Western Waggon Co 482 Eaton r. Jacques 171. 273, 436 r. Lyon 393, 394 r. Southby 472, 476 r. Swansea W. W. Co. ... 754 Ebbets r. Conquest 641 Ecclesiastical Commrs. r. Merral 18, 367, 575 r. Treemer 324, 400 r. Wodehouse 29 Ecclesiastical Commi-s. of Ireland r. O'Connor 409, 431, 439, 4.51 Edge V. Boileau 722. 726 r. Strafford 91. 92, 136, 572 Edgson r. Cardwell 554 Edmonds '•. Eastwood 407, 601 Edmondson /•. Nuttall ...446, 487, .558 Edwards. In re 127 r. Dick 23 /■. Etberington 184 r. Hodges 884, 885, 886 /•. Jones 60 r. Milbank 214 r Rees 411 r. West 402 /•. Wickwar 222,325 Edwick /•. Hawkes 715, 716, 781 Efford i: Burgess 568 Egerton r. Sheafe 418 Eeremont (Earl of) /•. Pulman 782 Eldridge r. Stacey 498, 499 Electric Telegraph Co. r. Moore 572 Elgar r. Watson 587, 784 Elgin County Road Trustees c, Jones 777 Ellard r. Llandaff (Lord) 114 Elliott r. Bishop 661, 665,668 r. Ince 48 /•. Johnson 263 /-.Rogers 571 /-. South Devon Rail. Co. 750 Ellis /-. Taylor 447, 448, 521 /-. Wright 401 EUiss r. Elliss 8.54 EUmore r. Kingscote 97 Elphinstone (Lord) r. Monkland Iron, &c., Co 421, 429 Elsev /-. Lutvens 205 Elston r. Rose 860, 872 Elwes, Re 601 • /-. Brisg Gas Co 149 /-.Elwes 227 /-. Mawe ...661,662,665,666, 672, 675 Elworthy /-. Sandford 262, 782 Embrev /-. Owen 751,752 Table of Cases Cited. XXV PAGE Emanuel and Simmons, In re ... 208 Emery '•. Bainett 139, 861, 862 Emmet r. Dewhurst 119 Empson r. Soden 6.")!!, 675 England r. Cowley •■>!*' ^: — r. Slade 281 r. Wall 7-11 Ensdeu '•. Dennis 22 Enys r. Donnithorne 161, 169, 171 Eiish r. Rives 6i Ernot r. Cole -iSl Ei'skine '•. Adeaue 93, 638 Espirf. Todd 706 Essex v. Capel 76-1 Etherton r. Popplewell oil, 512 Evans. Ex parte, In re Watkins 285 r. Davis ;...332, 3-12, 705 r. Elliott 57, 279, U7, 457, 521 /•. Evans -^76 /•. Mathias 63, -162 r. Vaughan...l53, 720. 723, 728 r. Walshe 116 (-.Wright 515,516,559 r. Wyatt 313 Evelyn r. Raddish 632, 771, 776 Everett r. Wilkins _7.5 Ewart r. Cochrane 756 r. Graham 88, 191. 761 Ewer r. Clifton (Lady) -126 Exhall Mining Co., In re -165 r. Partridge -169 Eynsham's case 616 Eyre r. Doiphin 398 Eyton r. Denbigh, &c., Rail. Co. 465 Fabian and Winsors case 341 r. Winston 341 Fairburn r. Eastwood 677 Fairclaim r. Shamtitle 850 Fairfax r. Gray 458 Fairtlough r. Whitmore 711 Fallon r. Robins 227, 385 Falmouth (Earl of) r. Thomas. . 792 Farmer r. Rogers 316 Farnell, In re 7 Earns worth r. Garrard 689 Farquharson /•. Morgan 830 Farrall r. Davenport 107 r. Hilditch 188 Farrance r. Elkington 788 Farrant /•. Olmius 419, 420 r. Thompson 685 Farrer r. Nelson 761 Faulkner, In re 208 (-.Johnson 542 r. Llewellyn 106, 107. 109, 121 Faviell v. Gaskoin 793, 801, 832 Fawkes r. Joyce 484 Fay r. Prentice 772 Fearon /-. Norvall 862 Fell V. Whittaker 541, 543, .560 Feltbam c. Cartwright ...*. 757 Felthouse i: Bindley HI 580 295 PAGE Female Orphan Asylum, In re... 18 Fenn (-. Smart 211, 335 Fenner r. Duplock 12, 281 Fenny /-. Child 166 Fentiman r. Smith 757 Fenton r. Clegg 53 /-. Logan 486 Feret r. Hill T 69,211, 70,5 Ferguson r. Black 637 r. Cornish 165 r. Wilson 103 Festing r. Taylor .590, 600 Few <-. Perkins 179, 626, 633, 642 Field, In re 131, 208 f. Adams 476 Fielden r. Plater 706, 709 r. Tattersall -804 Filliter r. Phippard 690 Finch r. Miller 166, 449 r. Underwood 393. 395 Findon /-. M'Laren 474 Finlay r. Bristol and Exeter Rail Co 141, 232,367, 371, Finley, In re, Clothworkers' Co., Ex parte Firth r. Greenwood 67. 122 r. Purvis 447, 521, 52(5 Fisher r. Algar 512 r. Dixon 666, 668, 669, 675 (-. Marsh Ji76 Fishwiek r. Milnes 522 Fitz r. lies 71() Fitzgerald r. Vicars 96 Fitzgibbon (-. Scanlan 396 Fitziiardinge (Lord) r. Pritchett 658 Fitzherbert r. Shaw 663, 679, 684 Fitzmaurice r. Bayley 67 Fitzwilliam's case 212 Fleetwood /-. Hull 174, 351, 714 Fleming r. Gooding 582 (-.Neville 2i)4 Fletcher c. Dyche 420 ■ • (-.Manning 681 (-. Marillier 500, .501 (-. Nokes 351 c. Rylands 758 (-. Stevenson 310 Flight /-. Bentley 265. 275 - (-. Bolland 126 (-.Booth 118,258 (-. Clarke -^fi-^ (-. Glossop 176 ■ (-. Thomas ...731, 74(). 748, 750 Flinu /-. Calovv 144 Flinty-. Brandon 195 Flitters (-. AUfrey 865 Floyd r. Lyons 619 Foley r. Addenbrooke ...170, 565, 669, 678, 685, 713 (-. Fletcher 601 Folkard (-. Hemmett 739 Folkingham c Croft 130, 694 Foote r. Berkeley 159, 160 Foquet r. Moor 99, 316 Ford i: Tilev lt»2 (-. Tynte ^^73 Fordham i: Ackers 541, 545 Foreman, Ex parte, Price, In re 293 Forman v. Dawes 382 XXVI Table of Cases Cited. PAGE Forrer *•. Nash 106, 120, 261 Forster v. Cookson 52,S. 529, 533 V. Rowland ...67, 9i, 100, 111, 206, 207 Foss f. Racine 602 Foster r. Mapes 723, 727 /•. Reeves 92 r. Rowland 101, 136 r. Wheeler 92 Foulger r. Taylor 501, 533, 535 Fowell r. Frank 165 r. Frantz 385 Fowkes r. Joyce -176 Fowls r. Welsh 723, 727 Fowler. In re 83 Fox r. Prickwood 216 '•. Swann 701 Frame r. Dawson 107, 108 Francis r. Wvatt 474 Franklin r. Carter... 211, 452, 578, 600 Franklinski r. Ball 55, 59, 117 Frankum r. Falmouth (Earl) ... 754 Fraser c. Skey 183 Freeman r. Cooke 686 r.Jeiiries 688 • '•. Rosher 494, 55S r. West 155 French r. Patten 195 r. Phillips 520 Freshfield r. Reed 220 Fre wen r. Phillips 747 Friar r. Grey 180, 385 Friend r. Shaw 859, 863 Frogley r. Lovelace (Earl) 195 Frosel r. Welsh 64 Frost r. Knia:ht 102 c. Moultou Ill Frusher *•. Lee 514 Fry (-.Fry 309 Fryan v. Wetherheac 1 150 Fryer t\ Coombs 220 Fryett r. Jeffreys 344 Fryman's Estate, In re 298 Fuldcr, Ex parte 887 Fuller r. Abbott 596 V. Fen wick 420 Furley v. Wood 1 45, 374 Furness v. Meek 201 Furnival r. Coombes 580 r. Crewe 393 Furnivall r. Grove. ..184, 316.319, 320, 324, 387 Fursdon r. Clos^g 235. 583 Fury r. Smith T 204 Gabell r. Shevell 597 Gage V. Collins 535 V. Smith 657, 661 Gale V. Bates 645, 804 Galsworthy r. Strutt 420 Gambrell r. Falmouth (Earl of) .520, 523 Gamon ;•. Vernon 275 Gandy r. Jubber 774, 777 PAGE Gange v. Lockwood 627, 629 Gardiner -v. Colyer 761 r. Williamson 85, 450 Gardner, Ex parte 123 V. Fooks 97 r. Ingram 164, 372 Garnett r. Bradley 553 Garrard r. Frankel 227 Garrett r. Sharp 748 Gartness Iron Co.. Re 467 Gaskell v. King 599, 768 r. Spry 704 Gaslight and Coke Co. r. Hardy 468 . . r. Holloway 826 • r. Towse 117, 397 r. Turner... 171, 211, 568, 705 Gaston r. Frankum 76 Gate ward's case 730 Gathercole r. Smith 103 Gauntlett r. King 486, 558 Gaved r. Martyn 732, 751 Gawler r. Chaplin 531 Gayford r. Moffatt 745 Gearns r. Baker 760, 761 Geddings r. Geddings 398 Gee, In re, Official Receiver, Ex parte 293 General Assurance Co. r. Worsley 372 Gent r. Catts 539, 544 German i: Chapman 707 Gerrard r. Clifton 145 Gethin r. Wilks 530 Gibbs r. Cruikshank 246, 551, 552 V. Stead 602 Gibs r. Hooper 603 Gibson c. Doeg 711 r. Hammersmith Rail. Co. 682 r. Holland 94 • r. Ireson 474 r. Kirk 571 . r Wells 651,6.52 Giddens r. Dodd 385 Gie r. Rider 317 Gilbertson v. Richards 155 Giles r. Hooper 169, 591 r. Spencer 444,488 Gilman 7-. Arkwright 501 Gillingham r. Gwyer 492 Gilman r. Elton 475 Gimbart r. Pclah 507 Girardy r. Richardson 238 Girau(l /■. Richmond 97 Gisbourn /•. Hurst 472 Gladman r. Plumer...57, 272, 452, 457 Glasgow (Earl) r. Hurlet Alum Co"; 188 Glegg, Ex parte, I^atham, Re 291, 294 Glen r. Dungey 572 Glover r. Cope 264 y Halkett 197 v. Lane 739 Glynn r. Thomas 520, 560 Godley r. Frith 730,741 Goff r. Harris 679 Gooch r. London Banking Association 429 Goode v. Job 235 Goodman i: G riffiths 98 Table of Cases Cited. xxvn PAGE Goodright v. Cater 337 r. Cord went 382, 383 /•. Davids 343, 703 r. Gregory 202 r. Mark. .* 1 65, 1 92, 1 95 r. Richardson 162, 165 r. Straphan 46, 202 r. Vivian 661 Goodson r. Goldsmith 636 Goodtitle r. Bailey 143 c. Funucan 23, 212, 213, 215, 217, 218, 221 r. Herbert 244,855 r. Morse 224 r. Paul 148 r. Saville 660 r. Southern 148 Goodwin v. Cheveley 485 V. Longhurst 64 Goold >: Great Western Deep Coal Co 17 Gordon r. Smart 124 Gore r. Bowser 282 r. Gibson 50 r. Gofton 533 c. Lloyd 424 Goreley, Ex parte 174. 690, 692 Gorton r. Falkner 469, 472, 485 r. Gregory 176, 565 Gosling r. Woolffi 260 Goss r. Nugent (Lord) 99 Gott r. Gandy 184, 635. 638 Gough r. Gough 831, 833 Gould, Ex parte. Walker, In re... 286, 287, 288 Gouldsworth r. Knights 79, 461 Gom-ley r. Somerset"(Duke of)... 699 Gower r. Postmaster-General ... 176 Grace, Ex parte 75 r. Morgan 852 Graham v. Peat 776 r. Tate 595 r. Wade 592, 594, 603 r. Wichelo 323 Grant c. Ellis 406, 490, 8.58 r. Gunner 739 r. Oxford Local Board ... 133 Grantham r. Thornborough 418 Grattan r. Wall .". 567 Gravenor r. Woodhouse 280 Gray r. Bompas 577, 783 r. Chamberlain 432 «. Stait 501 Great Ship Co., In re 466 Great Westei'n Rail. Co. r. Cripps 114, 118 Greatrex /•. Hay ward 753, 755 Green, In re 310 f. Austin 534 v. Bridges 347, 348 )•. Cole 667, 6.50, 651 r. Eales 629, 636 r. Edwards 153 r. Home 563, 564 /•. James 224 r. Kopke 68 c. Listowell (Lord) 305 r. London Cemetery Co. 574, 580 PAGE Green r. London Omnibus Co 542 r. Low 122 c. Marsh 249 r. Price 420 r. Smith 118 v. Symons 184 V. Wise 558 Greenaway v. Adams 699 r. Hart 175, 336, 414 Greenfield v. Hanson 349 Greeuslade r. Halliday 756 • ■ c. Tapscott 419,699 Greenwood /•. Tvber 46 Gregg r. Wells ' 387, 686 Gregory v. Doidge 280, 281, 425 r. Mighell 97.108 r. Wilson ...107, 123, 347, 348 Grescott v. Green 273 Gresham House Estate Co. r. Rossa Grande Mining Co 381 Gretton r. Diggles 275 Grey r. Cuthbertson 175 r. Friar 180 Grey de Wilton (Lord) r. Saxon 654 Grifienhoofe r. Daubuz 620 GritEn v. Griffin 396, 397 r. Scott 512 r. Stanhope 192, 195 r. Tomkins 345, 711 Griffith, In re. Official Receiver, Ex parte 299 r. Hodges 437 Griffiths, In re 75 r. Chichester 427 r. Earl Dudley 464 -y. Puleston 488,795 r. Stephens 540 r. Tombs 802 Griffiths and Morris, In re ...827, 830 Grimman r. Legge 319, 324, 435, 437, 586, 587 Grimstead v. Marlowe 730, 742 Grimwood r. Moss 343, 488 Grissell r. Robinson 207 Groom r. Black 272 Groombridge r. Fletcher 533 Grosvenor Hotel Co. r. Hamilton 196 Grosvenor r. Grosvenor 261 V. Hampstead Ry. ... 148 r. Sherratt ". 83 Grove, Ex parte 298 Gruffly r. Pindar 658 Grute'c. Locroft 13, 47, 302 Grymes r. Boweren 670, 671 Gubbins r. Creed 83 Gudgeon r. Bessett 110, 201, .569 Gullett r. Lopes, Bart 736 Gulliver r. Cozens 50 Gundry r. Feltham 764 Gunning >: Gunning 147 Gutteridge v. Munyard 628, 710 Guy r. West 655 Gw-atkin v. Bird ^<53 Gwillim r. Stone 7J9 Gwinuell v. Earner 639, 774, 777 Gwinnett r. Phillips 520 G Wynne v. Maynestone 1 63 Gybson v. Searls 72, 85, 317 xxvm Table of Cases Cited. H. Haberdashers' Co. r. Isaac : Butlin 681 Hayes r. BickerstafiE 718. 722 r. Caryll 122 Hayford r. Griddle 277 Hayling r. Okey 789 Haylock r. Sparke 88-1 Hayne r. Cnmmings ... 10.5. lH(i, 140, 11)2. iyi3, 234. 829, 331, 642 r. Maltbv 172 Haytor Grauite Co., In re ... 429, 467 Havthorn r. Bush .533 Hayward r. Parke... 101, 258, 260, 722 Haywood r. Brunswick. &c.. Soe '. 173 r. Cope 9.5. 113. 117 r. Silber 695 Hazeldine r. Heaton 271 Heap c. Barton 682.684 Heaphy r. Hill 124 Heard'/-. Pilley 67. 100. 136 Hearn /•. Allen 150 /•. Tonilin 252,580 Heath r. Elliott 736 Heatherly /■. Weston 13 Heawood r. Bone 481 HeflEord r. Al.iier 5.55, .524 Hegan /•. Johnson 141 Hegarty r. Milne lOl Hellard and Bewes, In re 209 Hellawell r. Eastwood. ..462. 472, 473, 663, 664. 665 Hellier r. Casbard 169, 304, 308 /•. Sillcox 571, 577 Helling r. Lumley 104^117 Helstone, Re ....'. 860,872 Hemingway r. Fernandes 173 Henchett /•. Kimpson ... 528, ;529, 533 Henderson r. Hay 128 r. Hudson 277 r. Mears 437, 578 ■ ■ v. Squire 436, 780 r. Thorne 640 Henning r. Burnet 741, 757 Hennings f. Brabason 163, 363 Hensloe's case 3o4 Henstead's case 13, 46, 242 Hepburn, Ex parte. Smith, In re 297 Herbert /•. Laughluyn 738 /■. Maclean 722 Herbiu r. Chard 47. 302 Herlakenden's case 659. (>M) 'Hersey /•. White 619 Hewitt r. Isham 190 Hewlins r. Shippam 741.756 Hewsou i: South West. Rail. Co. 14S Hext v. Gill 191 Heys r. Tindall 70 Hibblewhite r. M'Morine 211 Hickley, In re 209 Hickman r. Isaacs 709 r. Machin 57, 279, 571, .573 Hicks r. Downing 264, 269. 276 Hide V. Skinner 392 Higgins r. Samels 114 • r. Scott 441 r. Senior 68 Higginshaw Mills and Sfjinuing Co.. In re 465. 466 PAGE Higginson r. Clowes lUV Higham r. Rabett 742 Highgate School r. Sewell 3.53- Hill. Ex parte, Roberts, In re ... 298 i: Barclay ... 117, 123. 347. 352^ 687. 695 r. E. & W. India Dock Co. 291 ■ V. Grange 150, 413. 424 V. Kempshall 337. 338 /-.Patten iy.5. /•. Ramm 522, 583- r. Saunders 12, 46, 280. 30l, 567 r. Tupper 133. Hillman r. Mayhew lo3 Hills r. Street "1 516 Hilton c. Green 760, 766 r. Tipper 104, 261. 698 Hincbliffe r. Kinnoul (Earl) 151, , 746 241 187 Hinchman r. Isles Hinde r. Gray Hindle /•. Blades .545 /■. Pollitt 646. Hindley r. Emery lo4, 120, 653 • r. Rickerby 370' Hine r. Dodd 205 Hinton /•. Sparkcs 421 Hirst 1: Horn 376, 785,786, 841 Hitchman r. Walton 685, 686, 771 Hobbs /•. Hudson 504 Hobson /•. Cowley 322 /•. TiiUoch 708. Hoby /•. Roebuck 415 Hodesdon /•. Gresil 734r Hodges '•. Lawrence 492 Hodgkinson v. Crowe 130. 627 r. Ennor 758 Hodgson /•. Anderson 426' r. Carlisle Local Board 605 r. Gascoigne 529 • V. Hooper 243 /•. Johnson 257 Hodson r. Henland 108 1: Sharpe 20a /•. Walker 865 Hogan r. Hand 239 Hogarth r. Jennings 493 Hogg r. Brooks 386 — — r. Norris 360, 411 Hoggart r. Scott 125 Holcombe /•. Hewson 422, 715 Holcroft r. Steel 87 Holder /•. Coates 659 r. Soulby 238. 89( > r. Taylor 183 Holding r. Pigott 801 Holford r. Hatch ... 275, 276, 571, 576 /•. Pritchard 88, 581 /•. Kav 210. 431, 4.50 r. Bird 447, 521 r. Eyre Ill r. Kensington Yestry... 143 r. Palscr " 4()6 /•. Exton 157 , Brunskill 227, 324 •. Bellinuham 741 Holsj:ate Holland Blogg Goring 746 XXX Table of Cases Cited. PAGE Holmes nnd Farmby, In re 829 Holt r. CoUyer 710 Holtzapffel /•. Baker 138, 631 Holz r. Roebuck 93 Homes r. Pearce 137 Honeycomb i: Waldron 20-1 Honej'man r. Marryatt...llO, 111, 112 Hood r. Oiilander 126 Hool y. Bell -159 Hooper r. Clark 134, 173. 760 r. Ramsbottom 262 Hopcraft r. Keys 4.")2 Hope r. Booth 252 r. Gloucester (Mayor) 391 c. Hope 121 Hopkins r. Helmore 406, 413 Hopkinson r. Lee 170 r. Lovering 289 Hopper, Re 687 Hopwood i: Barefoot 603 /•. Schofield 771. 772 ■ /•. Whalev 1 72. 3( )6, 3( )9 Horn r. Baker ! 663, 677 and Francis, In re 208 Hornby /•. Cardwell 277, 278 Home r. Benbow 6r)l /•. Lewin 447, 495 r. Mackenzie 753 Hornidge c. Wilson 172, 308, 3(19 Horsefall r. Testar 1 79, 633 r. Mather 186,637,652 Horseley '•. Rush 67 Horsey r. G raham 93, 95 Horsey's claim 429 Horsfall r. Daw 504 /•. Hev 679,686 Horsford r. Webster 444, 445 Hosking r. Phillips 771 Hoskins v. Knight 530 r. Robins 734 Hotham r. East India Co 143, 177 Hotley r. Scott 335 Houghton r. Koenig 137 How r. Greek 572 r. Kennett 230, 572 V. Whitlield 216 Howard r. Fanshaw 357 r. Lovegrove 642 V. Shaw 235, 573, 580 r. Wemsley 374 Howe V. Hiuit 117 r. Scarrott 46, 301. 460, 575 Howell. In re, Mandleburg, Ex parte 299 c. Kightlev 693 v. Richards 419, 422 Howlett r. Tarte 226. 415 Howse r. Webster 308 Howton r. Frearson 87, 745 Hudd r. Ravenor 524 Huddlestone r. Briscoe 112 c Woodroffe 149 Hudson r. Bart ram 123 r. Cripps 728 V. Hudson 53 y. WiUiams 630 Huffell r. Armitstead 23(;. 365 Hugall V. McLean 635, 636 PAGE Hughes and Crowther's case 166, 313 Ex parte 83 '•. Chatham 252 /-.Clark 137 ■ /•. Hughes 63, 280, 462 /•. Lundey 284 /•. Metrop. Rail. Co.... 628, 633 /-.Palmer 210 r. Parker 96 r. Rimnier 623 r. Robotham 326 /•. Smallwood 528, 535 Humberstotie r. Dubois 788 Humble r. Hunter 68 Hume /•. Peploe 567 Humfrev '•. Dale 68 ' /•. Gery 489, 490, 568 Humphreys t: Franks 36(», 378 Humphries r. Cousins 777 Hunt /-. AUgood 388 /•. Bishop ...2. 178, 180, 254, 332, 346, 634, 856 c. Colson 251 /■. Cope 438 r. Harris 105 /-.Neve 204 /•. Remnant 2, 346, 634 Hunter r. Hopetoun (P^arl) 395 /•. Hunt 276 /■. Nockold 568 Huntley r. Russell 662, 663, 6(14 Hurd r. Fletcher 728 Hurrv '■. Pocock 558 r. Rickman 494, 558 Hurst c. Hurst 419. 420, 592.593, 594, 802 Hurt c. Leach 516 Hussey r. Horne-Payne 112 Hutchins r. Chambers ...522, 523. 524 1-. Martin 315,317 r. Scott 212,413,519 Hutchinson r. Copestakc 748 r. Kay 194. 679 /•. Read 178 /-.Taylor 578 Hutton c. Brown 237 V. Warren 1 46, 186, 233, 644, 649, 792. 801, 804 Hyatt r. Griffiths ... 233, 360. 779, 784 Hyde /•. Hill 593, 603 /•. Moakes 323, 579 /■. AVarden 130. 259, 286 332. 697. 721 /•. Watts 344.693 /•. Wrench Ill Ibbett /■. De la Salle 497 Ibbotson r. Peat 757, 758, 764 Ibbs r. Richardson... 436, 577, 780. 782 Icely /•. Grew 418, 421 Iggulclen r. May ... 1(;9. 183, 392, 393 Imray /•. Oakshette 353, 354 Incorporated Sy. /•. Richards ... 441 Indermaur r. Dames 777 Table of Cases Cited. XXXI PAGE Inderwick r. Leach 641 Ingham v. Fenton 82o Inkop r. Morchuich 501 Innian r. Stamp 92. 136 Insole r. James 7.5-1 Ipswich (Bailiff) r. Martin -ISO Irish Society r. Needham 406 Irnham r. Child 115 Isherwood, Ex parte 293. 294 /•.01dkuow...36.65.214.418 Israel v. Simmons 574, 581 Isteed r. Stoneley 174 Ive r. Sams 190, 317 Iveson v. Moore 741 Izon V. Gorton 438, 581, 587, 632 Jack r. M-Intyre 148 Jackson, Ex parte 249. 298 r. Cator 10, 115 r. Cobbin 705 '•. Jackson 120 r. Neal 65 r. 02:lander...94, 110. 111. 112 r. Pesked 772 ■ r. Stacey 741 r. Stoplierd 687 Jacob r. Kin,t>' 513, 540 Jacobs r. Seaward 652 Jacomb r. Harwood 53 Jacques r. Withy 182 James r. Cochrane 188 r. Dean 240, 304. 390 r. Emery 170 /■. Jenkins 10 r. Landoii 224 i-. Lichfield 119,256 t: Plant 87, 151 Jaques t: Millar 96, 104 Jay. Ex parte. Re Harrison 287 V. Richardson 704 Jeffer v. Gilford 750 Jeffery r. Bastard 545 f. Stephens 121 Jeffrey r. Neale 590 Jeffreys r. Fairs 118 Jeffryes r. Evans ...191. 721. 727. 728. 759, 760, 761, 766 Jenkins r. Church 10 r. Gething 663, 664 /•. Green ...22. 27, 95, 127, 189 r. Jackson 727 Jenner /•. Cleirg 383. 406. 445. 4.50. 4.52.488,573.587 c. Yolland 484.514 Jennings r. Major 138, 206 /•. Throgmorton 211, 238 Jenney r. Brook 190 Jeron r. Tomkinson 202 Jervis r. Tomkinson 153. 161. 171. 385, 411, 713 Jesser c. Gifliord 772 Jevens r. Harridge 307 Jinks V. Edwards. ..101. 105. 136. 141. 719. 728 PAGE Job r. Banister 347. 395 John r. Jenkins 316. 359. 501 Johns r. Whitley 211, 330, 790 Johnson r. Faulliner 443. 471 /•. Gallagher 125 r. King 110 /•. ilason 226 r. Mills 852 r. Smart 66 r. Upham 448, 521, 540 r. Warrick 53 r. Wild 276 Johnstone '•. Hall 707 r. Hudlestone 231. 320, 322, 359, 373, 446. 786, 788 (-.Milling 636 JoUand r. Stainbridge 205 Jolly r. Arbuthnot ...63, 226, 462, 573 Jones i: Barklej"^ 177 r. Bone 709 r. Bridgman 319 r. Cannock 179 r. Carter 343, 439. 4.52, 578. 643 r. Chapman 780.878 r. Chnppell 647. 649, 773 V. Davies 301, 328 f. Edney 258. 716 V. Foley 781, 878 r. Gooday 559 r. Green 419, 645 r. Heavens 420 /•. Hill 646. 651 v. Johnson 541. 552 r. Jones 123, 733 r. Littledale 68 (-.Marsh 380 r. Mills 365. 379. 388 r. Nixon 363, 385 c. Ogle 435 V. Owen 861,862. 864 r. Phipps 367, 368 r. Reynolds ...359, 572, 581, 584 r. Robin 730. 736 c. Shears 141. 577, 712. 7S3 r. Thompson 424 r. Thorne 709 r. Verney 10.215 (-. Watts! 115 r. Williams 760 Jordan v. Sawkins 99 (-. Twells 567 r. Ward 10. 11 r. Wykes 46 Joule v. Jackson 474 Jourdain r. Wilson 1 73. 265 Joyner r. Weeks 641 Joynes v. Statham 119 Jurdain r. Steere 14 Kavanagh r. Coal Mining Com. of Ireland 746 r. Gudge 332,781 xxxu Table of Cases Cited. PAGE Kay r. Johnson 104 Kaye r. Sutherland (142, 7'J4 Kearney r. Geniier 281 Kearns r. Durell oO Kearsley r. Oxiey U)r,. 808. r>79 Keates r. Cados^an (Earl) 184, (585 Keech r. Hall ". 55. 8<3(), 810 /•. Sandford 81)6. 897, 898 Keen '•. Priest 46'J, 488, 484, 487, 525, 558 Keenlyside r. Thornton 651 Keightley /-.Birch 588 r. Watson 170 Keith, I'nnvse k. Co. r. National Telephone Co 883 Kell r. Nokes 126 Kelly '■. Patterson 878, 5()8 r. Rogers 808. 721 /-.Webber 890 /-. Webster 257 Kemble r. Farren 419. 420. 421 Kemeys Tynte r. Kenieys Tynte 9 Kemp r. Bird 712 r. Cruwes 484 /-. Derrett 161, 286, 858. 879 r. Sober 707 Kendall r. Baker 410 r. Hill 114. 128 Kennard, Ex parte 299 /-.Ashman 170, 184 Kennedy, E.\ parte, Willis. In re 250, 279 /-. Lee 95. 98 Kenrick /-. Pargiter 734 Kensey /-. Langham 85 Keiiyon /-. Hart 7(»2, 763 Kerby /-. Harding ...499. 510, 511, .521 Kerne r. Benbow 685 Kerrison /-. Smith 184 Ker.slake r. White 144, 1.50 Ketsey's case 41, 75 Kiilgill /-. Moor 772 Kidwellv /-. Brand 841 Kighly /"-. Buckley 242 Kimpton /-. Eve ()54 Kind /-. Ammerv 488 King /-. lull.....' 51 '- /-. England 450. 518. 514 /-. Eversfield 818, 818, 828 /-. Jones 178 /-. Walcott 810 /-. Wilson 128 King's Leasehold Estates, Re ... 858 Kingdon /-. Nottle 178 Kingsbury /-. Collins 789, 791 Kingsland /-. Barnewall 88 Kingsmill /-. Millard 782 Kinlysidc /-. Thornton 685 Kinnersley /-. Orpe 205, 699 Kinsman /-. Jackson 712 K in t rea /-. Preston 101. 102, 260 Kirby /-. Sadgrove 788 Kirkman /-. Jervis 585, 586 Kirtland /-. Pounsett 252, 580 Kitching r. Kitching 847 Knevett /-. Poole 791 Knight. Re 599 /-. Bennett... 91, 452, 4.58, 472, 488, 492, 795 PAGE Knight /-. Broughton 434 r. Clarke 8.58 ■ /-. Croekford 197 /-. Egerton 515, 519, 561 /-. Mory 313 and Norton's case 50 Knipe /-. Palmer 201 Knotts /-. Curtis 561 Knowles /-. Blake 525 Kooystra /-. Lucas 87, 151 Kusel /-. Watson 96 Ladd /-. Thomas 447, 521 Laing /-. Smith 101 Lainson /-. Tremere 227 Lake /-. Uean 451 /-. Plaxton 789 Lamb /-. Brewster 600 /-.Mills 49(> /-. Wall 487 Lambert /-. M'Donnell 328 /-. Xorris 98,415 Laming r. learning 725 Lancashire Cotton Spinning Co., In re 465 Lancaster /-. De Trafford 95, 106, 113 /-.Eve (i(;5, 666 Lander and Bagley's Contract, Tn re 96, 128, 129, 130 Lane*-. Cox 773 /-. Crockett 478, .582 /-.Tyler 504 Lanfranchi /-. Mackenzie 748 Langford /-. Selmes 225, 269, 445 Langley /-. Hammond 151 Langton /-. Carlton 164, 862 Lascelles /-. Lord Onslow 67, 789 Latham /-. Attwood 789 Laugher /-. Humjjhrey ... 404, 457, 459 Laurance /-. Faux 579 Lawford 1-. Partridge 863 Lawrence /-. Faux 822 /-. Obee 749 Lawrie r. Lees 49, 845 Lawton /-. Lawton 668, 670, 675 /-. Salmon... 6()8, 668, 670, 67.5 /-. Sutton 181 Lay /-. Mottram 188 Layfield i\ Cow] )er 658 Lay thorp /•. Bryant 99. 259 Layton r. Field 242 Leach /-. Thomas... 186, 637, 652, 664, 669, 670, 671 Leailer /-. Home wood ... 682, 683, 684, 688 /-. Mo.xom 772 Leaf /-. Tuton 25(> Lear /-. Caldecott 528 /-. Edmonds 568 Leatt /-. Vine 768 Lee 1-. Cooke 524 /-. Gaskell 6'!'i> Table of Cases Cited. XXXlll PAGE Lee r. Lopes (Bart.) 53(), 588 ■ v. Xixon 17U r. Eisdon (567, 670, 679, 682 ■ r. Smith 186. 14L 878, 406, 488 '•. Stevenson 756 Leeds r. Burrows 802 r. Cheetham...438,632, 689, 692 Lees ;■. Wriofht 568, 581 Legal r. Miller 120 Legg r. Benion 385, 8S6 r. Pardee 768 r. Strudwick 164 Legge r. Horlock 420 Legh r. Hewitt 186. (544. 792, 818 r. Lillie '. 645, 802 Lehain i\ Philpott 515 Lehmanu /". M'Arthur 125, 695 Leigh /•. Burrell 400 /•. Dickeson 14 r. Heald 190 r. Shepherd 456, 495 r. Thornton 588 Leighton r. Theed 242 Le Keux r. Nash 171, 273, 274 Lempriere r. Lange 75 Lenthall '■. Thomas 66 Le Neve '■. Le Neve 205 Lepla r. Rogers 702 Leslie v. Crommelin 104 ■ c. Pounds 774 Letchford, Re 42 Levi r. Lewis 571. 572, 574 Levy r. Sale 170,564 Lewers r. Earl Shaftesbury... 103, 110 Lewis r. Bond 123, 352 r. Campbell 173, 727 V. Fothergill 6.58 r. Hilliard 1.58 r. Read 558 r. Ridge 274 r. Rochester (Mayor) 18 r. Willis .' 582 Ley r. Peter 235 Leyton r. Hurry 506 Lichfield r. Ready 57 Liford's case 190 Liggins V. Inge 757 Lightfoot /•. Heron 114 r. Keane 2()2 Lilley r. Harvey 862 r. Leigh 123 r. Whitney 146 Linder v. Pryor 713 Lindsay r. Lj^nch 107, 108 Line r. Stephenson 721 Lineham /•. Cotter 119 Lingen, In re 158 Lingham r. Warren 524 Linwood v. Squire 171 Lisburue (Earl of) r. Davies ... 782 Lister r. Brown 504 r. Hodgson 227 r. Lane 628 Litchfield r. Ready 211, 777 Llewellyn /•. Rous 434 r. Williams 160 Lloyd, Ex parte 667 V. Crispe 261. 695, 701 L.T. PAGE Llovd r. Davies ... 270. 283. 284, 456, 573 r. Davis 854 r. Dimmack 273 r. Jones 788, 862 • r. Langford 315, 318 v. Rosbee 785. 788 r. Tomkies 723', 728 Llynvi Coal and Iron Co., Ex parte, Re Hide 301 Load /•. Green 211, 564 Loader r. Kemp 636 Lobban v. Cook 597, 607 Lock r. Furze 159, 193, 206, 210 r. Pearce 349. 351. 356 Locke r. Matthews 241, 244, 24() Lockwood r. Wilson 590 r. Wood 82 Lofft r. Dennis 438, 632, 635, 638 Logan r. Hall 277, 641, 694 London (City) '■. Greyme 649 (Mayor, &c.) v. Hedger 653 ■ (Mayor, &c.) v. Pew- terers' Co 747 (Mayor) r. Southgate... 120 /-.Southwell 190 London and Birmingham Rail- way Co. '•. Winter 119 London and Colonial Co.. Re ... 467 London Gas Light Co. r. Chelsea Vestry 177 London and North Western Rail. Co. r. Buckmaster... 133 7-. Garnett 710 /-.West 224 London and Suburban Co. r. Field 710 London and South Western Rail. Co. r. Flower 635 London and Westminster Loan Discount Co. r. Drake ... 323, 667, 682, 684 v. London and North Western RaiL Co 407 London and Yorkshire Bank r. Belton 486 London Dock Co. r. Sinnott...llO, 111 London Investment Co. r. Monte- fiore 692 Long )•. Bowring 116, 124 r. Clarke 498 r. Fletcher 119 Longbottom r. Berry 680 Longford i: Selmes 857 Longman r. Blount 184 Longstaff r. Meagoe 679, 686 Loring r. Warburton 520 Lotham r. Spedding 862 Lovell r. Smith 754 Lovelock V. Dancaster 850 Lovering, ex parte. Re Jones ... 294 Lowe r. Carpenter 731, 750 v. Griffiths 75 r. London and North West- ern RaiL Co .580 V. Peers 419 r. Ross 210, 572, 776 V. Swift 214 XXXIV Table of Cases Cited. PAGE Lowndes r. Fountain 804 Lucas, In re 436 V.James 100, 111. lU i: Jones -128 r. Taiieton... 171, 511, 512, 557, 561 JjUcj r. Levington 565 r. Leviston 718, 727 Ludf ord r. Barber 1 1 Ludlow (iMayor, &c.) r. Charlton 425 Ludwell r. Newman 719, 728 Luker r. Dennis 715 Lumley v. Hodgson 279 r. Eavenscroft 125 Lundy Granite Co., In re. Ex parte Heaven 465, 466, 467 Lurting r. Conn 648 Luton Local Board v. Davis 615 Lutterell r. Weston 64 Luxmore r. Robson 627, 689 Lybbe r. Hart 176, 289 Lyburn r. Warrington 1()9. 195 Lyde r. Russell 669, 682, 685 Lyndon r. Stanbridge 14H Lyon T. Reed ...223, 316, 317, 319, 322 r. Tomkies 515 r. Weldon 51H Lyons r. Elliott 444, 469, 474, 475 M. Macbryde r. Weekes 123 Macher r. Foundling Hospital... 711 Machell v. Dunton 265 Mackav r. Mackreth 15, 280. 285, 276, 804, 890 Mackintosh r. Midland Counties Rail. Co 177 r. Trotter ... 667, 682, 685 Mackley r. Patteiidcn 126 Maclean /•. Dunn 100 M'Ardle r. Irish Iodine Co. ...68, 202 McGarel, In re 207 M'Garth r. Shannon 314 M'Kenzie r. Hesketh 95. 96 M'Leish r. Tate 408, 452, 488 M'Loughlin r. Craig 430 M'Murray r. Spicer 95 M'Nally v. Gradwell 126 Maddison r. Alderson 107 Maddon r. White 41, 280, 357, 868, 890 Maddy v. Hale 393 Madeley r. Booth 106, 119, 277 Magdalen Hospital r. Knotts ...28, 88 Magee v. Atkinson 68 Magor r. Chadwick 752, 755 Maitland r. Mackinnon 150 Major r. Salisbury 143 Makin r. Watkinson 685 Malet, lure 228 Mallani r. Ardcn 424 Malpas r. Ackland 87 Manchester College r. Trafford... 166 Bonded Warehouse Co. «. Carr 631 PAGE Mann r. Lovejoy 245 Manning /•. Greshani Hotel Co. 750 /■. Lunn . . . 449, 590, 591, 603 r. Phelps 489, 568 1-. Wasdale 780 Mansel ;■. Norton 175, 793 Manser r. Back 67, 100, 119 Mansfield (Earl) c. Blackburne 668, 676 Mantz r. Goring 628 Markham v. Stanford 86, 580 Marlborough (Duke) r. Osborn 408, 413 Marsh r. Curtey s 381, 842 Marshall c. Berridge 96 r.Lvnn 99 r. Schofield 404 Marston r. Dean 584 Martin, In re 208 /•. Goble 771 r. Headon 748 r. KnowUys 652 V. Pycroft 97, 99, 119 r. Roe 663 r. Smith 232, 637 Martindale r. Booth 282 Martyn r. Clue 173, 178, 684 V. Williams 262, 26.5, 274 Martyr r. Bradley 671, 678, 685 r. Lawrence 148 Marwood r. Waters 571, 862, 863 Mary's case 783 Mason y. Bibby 880 r. Corder 261, 695 r. Hill 751, 752. 755, 756 Massey v. Goodall ()45, 802 Master r. Hansard 749 Masters r. Farris 557 r. Green 486 y. PoUie 659 Mather r. Eraser 666,680, 681 Matheson r. Ross 428 Matthews r. Baxter 50 r. Goodday 275 /■. Whetton 64, 65 Matthewson r. Wrightman 376 Matthias r. Mesnard 475 Matts r. Hawkins 655 Maughan, In re 91, 292 Maund's case 422, 461 Maundrell, Rx parte. Re Drake. . . 288 r. Maundrell 36 Maunsell r. O'Brien 898 Maw r. Hindmarsh 714 May '■. Foot iier 771 Mayfield r. Robinson 84 r. Wadsley 792 Mayhew i\ Suttle 140, 251, 846 Mechelen r. Wallace 93, 452, 586 Meek r. Carter 348 Meggison r. Glamis (Lady) 450 Megson r. Mapelton 495 Mel hado r. Woodcock 614 Melling r. Leake 241 Mellor r. Leather 539 f. Watklns 278 323 Mellows r. May 317 Mercer v. Irving 419, 420 and Moore, Re 286 Merceron f. Dowson 275 Table of Cases Cited. XXXV PAGE Merchant Taylors' Co. r. Trus- cott 747 Meres ;•. Ansell 144 Merrill v. Frame 721 Merry, In re 3.") Messenger r. Armstrong. ..3(;4, 383, 78(5 Messent r. Reynolds 719 Metcalf r. Birtle 6-iU Metropolitan Association r. Fetch 771, 772, 773 Counties Assurance Co, r. Brown 247, 248 Rail. Co. r. Uefries 2'>H Meux r. Cobley 646, 047 (-..Jacobs 680 Meynell r. Surtees 110 Micklethwaite v. Winter lyi Middlemore r. Goodball 173 Middleton f. Greenwood 120 r. Magnay 104, 120 Midland Coal, Coke and Iron Co., In re, Craig's claim 42!> Miles r. Furber 474 Mill r. Mill 396, 398 Miller r. Finlay 107 V. Green 471 ;■. Hancock 728 r. Maynwaring 12, KJO Millership /-."^Brookes 110, 201, 572 Milliner r. Robinson 1.") Mills *•. East London Cnion Guar- dians 634, 640 r. Goff 374, 379 /•. Ladbrook 170 r. Trumper 434 (-.Tweed 260 Milner r. Milnes 302 '-. Myers 781 Milnes r. Grey 120 Milward r. Thanet (Earl) 122 Miner /-. Gilmour 7.") 1 Minshall r. Lloyd 66.-), 669. 682 -T'TtTinton r. Geiger 144 Mitcalfe r. Westaway 189 Mitchell i-. Cantrill 747 r. Lee 424 '-. Steward 722 Mitchison r. Thompson 3.-)l Modlen r. Snowball 109 Mogridge r. Clapp 8, 10 Moir r. Munday r>r>7 Molineux r. Molineux 340 Mollett r. Brayne 319. 3.59 Molton, In re 418 ■ r. Camroux 48 Moneypenny r. Hartland 6.S9 Monk r. Cooper 437 r. Noyes 630 Monroe r. Kerry (Lord) 226 Montague's (Lady) case 64, ()6 Moody r. Dean of Wells 604 r. King 12 Moore '-. Campbell 99 /-. Clark 63.5. 657 (-. Clench 24 r. Culverhouse 204 c. Drinkwater 472, 473, 558 V. Greg 275 v. Musgrove 161 PAGE Moore r. Plymouth (Earl) ... 336, 759, 760 f. Pyrke 514 /-. Rawson 749 i-. Robinson 714 r. Webb 751,755 Moores r. Choat 275. 700 Morden r. Porter 762, 763, 764 Morecock r. Dickens 205 Morewood r. Wilks 50 Morgan, In re 297 r. Abergavenny (Earl of) 473 (-. Davies 374 r. Griffiths 93, 170, 765 r. Hardy 640 r. Hunt 725 r. Jackson 767, 768 /-.Parry 455 r. Rhodes 126 r. Slaughter 130, 694 '•. Thomas 304 Morland v. Cook 173 Morley r. Attenborough 686 r. Carter 826 r. Pincombe 468 Morphett r. Jones 107 Morris /-. Edgington 87, 726, 746 '•• Elme 63 /-. Kennedy 265 r. Twist 65 Morrison r. Chadwick ...319, 430, 438, 567 Mortal r. Lyons 67, 105, 108 Mortimer r. Shortall 227 Morton r. Palmer 481 r. Woods 56, 224, 226, 248, 406, 457 Moser, In re 294 Moss r. Barton 396 - /-. Gallimore 16, 55, 266, 279, 457, 573 Mostyn r. Lancaster 214 r. West Mostyn 103, 228, 229, 718 Moule r. Garrett 273 Mounsey 1: Ismay 730, 732 Mountjoy's case 409, 417 Mountney r. Collier 582, 862 Mousley r. Ludlam 801 Moxey r. Bigwood 114 Moyle r. Moyle 648 Mucclestone r. Thomas 179 Mulraney r. Dillon 396 Mumford /-. Collier 250, 251 /-. Oxford, Worcester, and Wolverhamp- ton RaiL Co. ...771, 773 Muncey r. Dennis 801, 802 Munday *-. JolijGfe 106, 107 Mungean r. Wheatley 554 Municipal Permanent Building Society v. Smith 62 Murdock r. Taylor 59 Murgatroyd v. Robinson 751 r. Silkstone, &c.,Coal and Iron Co 445 Murley r. M'Dermott 655, ()56 Murphy r. Daly 649 Murray f. Parker 227 c2 XXXVl Table of Cases Cited. PAGE Murray r. Stair (Earl) 201, 202 Murrell r. Tysh 272 Musgrave r. Cave 84. 736 ■ r. Emerson 405, 445 Muskett r. Hill 372 Muspratt r. Gregory 474 Kiigle r. Baylor 50 Xargett r. Nias 4S5 Nash r. Gray 423 r. Lucas 498, 500 i-. Palmer 723.727 r. Turner 226 Nation v. Tozer 579 National Savings Bank Associa- tion, Ke, Ex parte Brady 108 Naylor r. Collinge 631. 676 Neale r. Mackenzie 126. 210, 431. 431t, 450. 5(;o ,-. RatclifE 178, 633, 634 /■. Swind 580 — r. Wyllie 278,639 Neate v. Harding 222 Neave v. Moss 11. 225 Negus, In re 208 Nepean r. Doe 157, 773 Nesbit r. Meyer 105 Nesbitt r. Tredennick 397 Nesham r. Selby 98 Ness v. Stephenson 481 Neve r. Pennel 204 Newberv, Inre. White r. Waklev 631, 782 Newbolt r. Bingham 357 Newby r. Jackson 854 i: Sharpe 726 Newcastle's Estate (Duke of), In re 213 New City Constitutional Club Co., In re 466, 467 Newcombe r. Harvey 2()3 Newling r. Pearce 461 Newman. In re 207 r. Anderton 89, 237, 431. 446 Newman's case 420 New Oriental Bank Corporation, Inre 301, 429 Newport r. Hardy 575, 579, 582 New Eiver Co. r. Johnson 757 Newsou /•. Smythies. ..177. 180. 644. 779 Newton r. AUin 430, 438 r. Beck 2(52 r. Harland 780 • r. Nock 712 ■ r. Scott 477 r. Wilmot 187. 191, 761 Niblet r. Smith 478, 541 Nicholas r. Simonds 790 Nickells r. Atherstone...31(;, 318, 319, 322, 323 Nicoll r. Jenning 706 Nind r. Nineteenth Century Buildiii"- Societv 354 PAGE- Nixon, Ex parte 64.5- V. Freeman 487, 498, 588 V. Quinn 579' Noble r. Cass 305 r. Ward 99- Noke r. Awder 17S Noke's case 183 Nokes V. Gibbon 347 Norbury (Lord) r. Kitchin... 751, 752 Norris r. Jackson 121, 122 Northam v. Hurley 753 Northcote r. Underbill 172 North London Land Co. r. Jaques 351 Northumberland (Duke) r. Er- rington 169, 565 North Western Railway Com. r. M'Michael 75 Northwick /•. Stan way 64. 739- North Yorkshire Iron Co.. In re 466, 467 Norton r. Harvey 53 r. Herron 68 Norval r. Pascoe 264 Novello /•. Toogood 468 Nunu V. Fabian 107. 108 ?-. Truscott 123 Nurse '•. Seymour (Lord) 119, 126 Nuttall '•. Bracewell 753 r. Staunton 453, 488, 492 0. Oakapple /•. Copous 376 Oakley r. Monck 11, 232, 233. 234 Oak Pits Colliery Co., In re 46r Oastler r. Henderson 321 Gates r. Frith 413, 415 Oceanic, kc. Co. /•. Sutherburv .52. 402 O' Connor r. Spaight 99 ■ OdeU r. Wake....': 171, 262, 269 Ogden f. Fossick 113, 121 Ogilvie V. Foljambe 94, 95 Ognel's case 460 O'Hare r. Fahy 737 O'Herlihy v. Hedses 114, 126- Oland r. Burdwick 242 Gland's case 790 Oldershaw r. Holt 434, 436 Oldfield's case 745 Olroyd r. Crampton 86- Onions r. Cohen 127, 722 Onley v. Gardiner 731, 732, 743 Onslow r. Corrie 171, 273, 274, 289 Openshaw r. Evans 629 0[)pcnheimer r. British, i:c.,Bank 429 Opperman r. Smith 501 Orby V. Mohun 213, 407 Orgill t'. Kemshead 171, 430 Ormes /•. Beadel 120' Ormond (Lady) r. Hutchinson... 83 Ormrod r. Huth 686 Osbond V. Meadows 7()3 Osborn r. Garden 43 Osborne r. Wickendcu 4()0 r. Wise 87, 145, 74(5. Table of Cases Cited. XXX VI 1 PAGE Our Boys' Clothing Co. r. Hol- boru Viailuct Land Co 705 Outram /•. Maude 741 •Owen f. De Beauvoir 400 r. Leigh 471, 512, 519 r. Owen 854 V. Pearce 862 (-.Thomas 95 r. Williams 398 r. Wynne 459, 523 Oxenham r. Collins 444 Oxford r. Provand 97, 109 (Bishop of) r. Wise ...... 593 (Mayor) r. Cro w 126,314 •Oxley r. James 15, 264, 270, 454 Packer r. Gibbons 438, 585 Paddington Charities, In re 575 Paddock r. Fradley 144 Padwick r. King 763 Page, In re 294 r. Broom 124 /•. More. ..164, 360, 365, 375, 786 Paget r. Foley 489,568 r. Marquis of Anglesea ... 434 r. Marshall 228 Paget's (Lord) case 162 Pain r. Coombs 107, 108, 123 Paine r. Meller 116 ■ r. Ryder 741 Paines v. E wing 100 Painter V. Newby 118 Palgrave r. Windham ... 529. 530, 532 Palk r. Force 689 r. Shinner 731, 772 Palmer r. Earith 591, 592, 606 r. Edwards 2()9 v. Ekins 582 r. Gosen 693 Palmer's case 162, 658 Pannell r. P^enn 53 -v. Mill 188, 191, 760, 761 Panther Lead Co., In re 320, 430 Panton v. Jones 583 Papillon /■. Brunton 370, 374, 380, 381, 585 Paradine V. .lane 439 Paramour r. Yardley 53 Pargeter v. Harris 224, 226, 264 Parish v. Hudson 436 r. Sleeman 127, 590, 603 Parke, Ex parte. Potter, In re ... 470 r. M'Loughlin 226 Parker r. Bleukorn 208 V. Constable 230, 304, 360, 374, 390 V. Gibbins 632 V. Harris 168, 242, 407 y. Plumber 148 V. Shepherd 166 V. Taswell ... 97, 105, 121, 136, 141 r. Webb 173 'V. Whyte 277 PAGE Parker c. Winlow 68 Parkinson's case 17, 32 Parkinson v. Potter 468, 598 Parmenter v. Webber 269. 454 Parrott «'. Anderson 427 Parry r. Deare 197 r. Duncan 501, 554 v. Hindle 46, 460 Parsons r. Gingell 474 ■ r. Hind 663 Partington r. Woodcock... 57, 279, 457 Partridge r. Bere 771 • V. Foster 282 r. Naylor 508 Pascoe ('. Pascoe 269, 276, 454 Pasley v. Freeman 69 Paterson, Ex parte, Throckmor- ton, In re 294 Patman r. Haslaud 276, 706 Patrick r. Stubbs 733, 739 Patten c. Reid 306, 579 Pattison r. Gilford 760, 761 Paul, In re 825 /•. Meek 137 /■. Nurse 175 /•. Sunimerhayes 764 Paull r. Simpson 308 Paxton r. Newton 118 Payler r. Homersham 143 Pavne r. Burridge 590. 591, 592, 594, 597, 605, 614 /•. Haine 628 /•. Rogers 774, 778 r. Shedden 754 Paynter f. The Queen 607 Peachy v. Somerset (Duke) 839 Peacock r. Peacock 240 r. Penson 104, 118 r. Purvis 476, 477, 478 Pearce r. Brooks 568 Pearse r. Boulter 369, 370 Pearson r. Glazebrook 862 V. Spencer 151. 746, 757 Pease v. Chaytor 545, 551, 560 ■ 1-. Coats 709 Peebles r. Crosthwaite 700 Peers r. Sneyd 67 Pegler ?■. White 113 Pellatt /•. Boosey 341,345 Peles r. Hoare 560 Pembertou r. Chapman 304 Pembroke (Earl of) r. Sir H. Berkeley 313 Penf old f. Abbott 1 83, 720 Penley v. Watts 277, 641 Pennant's case 343, 488 Penniall r. Harborne 344, 691, 693 Pennington r. Cardale ... 23, 210, 371 — — r. Morse 245 Penry v. Brown 631, 663, 670, 676 Penton c. Barnett 344, 352, 643 r. Brown 497 r. Robart ... t: Flanagan 4'.i3 f. Great "Glenn 304 t: Great Wakering 170 V. Great West. Rail. Co. ... 605 i: Gurdon 541 r. Hale 6.') f. Hammersmith (ill V. Harland Sid V. Head 605 V. Hedges 670 'V. Herstmonceaux...231. 237, 358 r. Hill 478 V. Hornchurch 64 r. Ineham SS7 f. Jobling 23!) r. Jones 81)3 V. Kelstern 251 r. Kettle 831 v. Licensed Victuallers' So- ciety 605 r. I.ondonthorpe 671 /•. Longnor 'JiO v. Lubbenham i23 V. Jjynn (507 r. Middlesex (.JJ.) 881 ■ r. (Registrar)... 204 r. Mitcham '. 602 ■ r. Monkhouse 540 r. Morgan oOo ■ r. Morrish 133, 140 ■ r. Mortlock 3S0 •r. Nevill 143 ■ v. Nicholson 88 - V. North Duffield 18 • r. Oakley 43, 892 ■ r. Otley"^ 662 r. Pedley 774,775 ■ V. Pratt' 763 ■ I'. Preston 19!) • V. Rabbitts 505 r. Radnor (J J.) 503, .505 • v. Raines 545 r. Ramsden, Bart 615 r. Richmond (Recorder) ... 381 r. St. Dunstan 670, 671 v. St, Martin's 607 V. St. Jlary-tlie-Less 607 'V. Salisbury (Marquis) 607 v. Sewell .*. 884, 887 V. Sheil 600 r. Shickle 473 PAGE Rex (or Reg.) v. Shipdam 251 i: Shropshire (J J.) 505 1-. Smyth 893 r. Snape 251 ■ r. Southerby 478 r. Spurrell 252 r. Stannard 775 ■ i: Sterry 607 /-.Stock 251 r. Sutton 43 r. Thorp 43 1-. Thurlstone 760 v. Topping 333, 678, 700 r. Traill '. 887 ■ i: Tynemouth .' 607 v. Wait 67 - — - ;■. Watts 777, 778 r. Wells 607 r. West brook 404 r. Wilson 1.5, 270, 891, 892 — — /-.Wood 763 *•. Yorkshire (•! J.) 380 Reynel. Ex parte 681 Reynard r. Arnold 402 Reynolds r. Barford 530 r. Bridge 420 r. Pitt 347 (-.Waring 108 Rhj'mney Rail. Co. r. Price .540 Rich r. Basteriiclil. .. 774, 775, 777, 778 (-. Jackson 115 r. Woolley 502 Richards r. Bluck 181 /-. Ceeley 66 v. Fry 731 r. Richards 303 Sely 140, 163 -. Evans 6!>5 -. GifEord ... 136. 141, 232 -.Hall 572 -. Jackson 449 -. Langridge 164, 237, 239 Borough Justices, 878 Rickett. Re 220 Ricketts /-. Bell 124 r. Salway 734, 753 r. Weaver 305 Rickman *-. Johns 465 Riddell i-. Stovvey 4.50 Ridgway r. Stafford (Lord) 514 -^— (-. Wharton... 67, 98, 100, 111, 112 Right r. Beard 252,364 i: Cuthell 1()5, 373, 386 v. Darbv 245, 360, 361, 364, 374, 380 ;-. Proctor 140 — r. Thomas 140, 212,220, 415 Riseley r. Rvle 529, 530, 531, 533, 528 Rivis v. Watson ... 155, 278, 279, 455, 456 Roach V. Garvan 44 Roberts ;;. Barker 792, 802 i-. Berrv 106 r. Brett 177, 192, 627 r. Davey ... 210, 211. 335. 337 r. Hayvvard...57. 364, 371, 784 Richardson Richmond In re .... Table of Cases Cited. xli PAGE Eoberts r. Holland 2(18. 771 /•. Rose 13-1, 756 • r. Tre{?askis 96, 206 Eobertson r. Xorris 301 Eobins r. Cox 263 Eobinson r. Anderton 686 r. Harmau 102 r. Hoffman 455, 495 ■ — — v. Kilveit 726 v. Learoyd 785, 787 - r. Leiiaghan 860, 864 v. Milne 191 >: Page 99, 120 t: Tongue 85 V. Waddington 511. 557 Eobson, In re 209 v. Flight 36, 221, 722 Eochdale Canal Co. r. Eadcliff'e 730, 731 Eochester (Dean and Chap.) c. Pierce 570 Eockingham (Lord) v. Penrice. .. 423 Eoden r. Eyton 512, 514, 519 Eodgers r. Farlver...471. 482. 511. 512, 519, 561 Eodmell r. Eden 67 Eoe V. Brindley 345 r. Charnock 360 r. Davis 137, 839 c. Doe 374 r. Galliers 176, 286,701 r. Harrison 343, 695. 703 *•. Hayley 165, 174. 336, 386 /■. Hodgson 43 i: Lees 163, 363 r. Paine 34.5, 633. 642 ;•. Pierce 367,371 r. Prideaux 214 /-.Sales 699 r. Street 241. 370, 380, 381 ■ r. Summerset 53, 304 r. Walker 150 r. Ward 10, 11. 233. 234. 245. 378. 7S4 r. Wiggs 370, 846 r. Wilkinson 374 1: York (Archbishop)... 212, 314, 318, 416 Eoffey r. Henderson 134, 667, 684. 685, 756, 757 Eogers, Trusts, Ee 434 r. Birkmire 491 r. Grazebrook 251 r. Humphreys... 36, 54, 55, 57, 279, 457 V. Kingston- upon- Hull Dock Co.... 3.58, 359, 374, 380 r. Pitcher 280, 284, 424 V. Eice 351 : r. Taylor 730. 747 f. Tudor 123 Eolfe r. Peterson 419, 420, 645 Eollason v. Leon... 101, 105. 136. 142, 143, 451 EoUeston f. Morton 283 r. New (i54 EoUs V. Miller 708, 709 Eolph V. Crouch 724, 728 PAGE Eooke V. Kensington (Lord) 227 Eose r. Poultou 201 Eosemgrave v. Burke 435 Eosewell i: Prior 774 Eoskruge r. Caddy 549 Eoss r. "Clifton...." 561 Eossiter r. Miller 94, 112 Eoundwood Collier v Co.. In re... 249, 444, 446, 466 Eoutledge /•. Grant 110 Eowbotham r. Wilson 188 Eowe r. Brentou 205 r. Huntingdon 162 V. Young 425 Eowley v. Adams 306 Eowls V. Gells 606 Eubery v. Jervoise 394 v. Stevens... 304, 306, 308, 309 Eumball r. Munt 34 V. Wright 253, 580 Eummens v. Bobbins 110 Eussell, Ex parte 475 c. Baber 706 )-. Eider 499 r. Sheuton 656, 777 • ■ r. Shoolbred 271 r. Stokes 176. 264 Eutland /;. Wythe 219,416 Ryal r. Eich 787 Eyan /•. Clark 210 r. Mutual Tontine West- minster Chambers Association 728 r. Shilcock 498 r. Thompson 594 Eyley c. Hicks 135 Eyot c. St. John ( Lady) 630 Sabbarton r. Sabbarton 215 Sabourin r. Marshall 540 Sacheverell r. Froggatt 413, 414 Sacheverill r. Porter 735 Saffery r. Elgood 15 Saint V. Pilley 323,684 Sainter r. Ferguson 106, 420 St. Alban's (Duke) r. Ellis ... 169, 187 (Bishop) r. Battersby 710 St. Cross (Master) v. Howard de Walden 409 St. Germains (Earl of) i: WiUan 795 St. John's Coll. r. Murcott ... 477, 528 St. John's Hospital, In re 158 St. Nicholas (Churchwardens) r. Sketchley 34 St. Saviour's (Southwark) v. Smith 273 Sale f. Lambert 94 Salisbury r. Hurd 66 (-.Marshall 184 Salisbury's case (Bi.shop) 25 Sallory r. Leaver 461 Salmon v. Matthews 58, 431 r. Swan 326 Salter r. Grosvenor 78 r. Kidtrlev 564 xlii Table of Cases Cited. PAGE Saltoun r. Houston 188 Sampson r. Easterby 169, 17-I-, 188 r. Horldinott THl, 755 Samuila r. Lawford 121 Sanders, In re 493 r. Davis 682 r. Karnell 232 i: Pope M7 Sanderson i: Berwick (Mayor) 725, 726 Sandford r. Clarke 775 Sandhill v. Franklin 159 Sandiman r. Breach 14-3 Sands r. Hempson 457 Saner c. Bilton 440 Sangster r. Noy 380 Sapsford r. Fletcher 428 Sarson r. lloberts 185 Saunders, In re 50 ■ • r. Merryweather 2(!4 r. Musgrave 253, 529 /•. Newman 752, 754 r. Pitfield 768 Saunderson r. Hanson 595 Savage r. Dent 848 ■ V. Stapleton 377 Savery /•. Entield Local Board ... 208 Savil r. Bruce 35 Saward r. Leggatt 629 Saxby r. Manchester, Sheffield and Lincolnshire Kail. Co. ... 775 Saxon r. Blake 68, 100 Say r. Barwick 50 1: Smith KJB. I(i4, 167 Savers r. Collvcr 103 Scales r. Lawrence 630 Scaltock v;. Harston 265 Scheider r. Norris 100 Schofield r. Hincks 289, 295, 825, 826 Scholes r. Hargreaves 734 Schroder r. Ward 628 Schwartz r. Locket 720 Scobie r. Collins 248 Scot r. Scot 341 Scott (-.Buckley 498 r. Mat. Brown i: Co. ... 351, 781 r. Scholey 282 c. Sykes 745 Scottish North Eastern Kail. Co. r. Stewart 121 Scudamore v. Stratton 393 Seago r. Deane 635 Seagood r. Meale 94 Seaman's case 1 4(> Sear r. House Projjcrty and In- vestment Society 697 Searson r. Kobinson 805 Seaton r. Booth 253 r. Staniland 227 Seaward v. Paterson 711 r. Donnington 853 Sedden r. Senate 726 Seddon r. Tutop 584 Seftou (Earl) r. Court 736 Selby r. Browne... 211, 331, .564. 573. 578. 582 r. Greaves 89,404,446 f. Selby 100 Sellick r. Trevor 260 Sellin r. Price 194 PAGE Sells r. Glamis (Lady) 450 r. Hoare 519,520' r. Sells 227 Selway r. Fogg 118 Semayne's case 497 Senhouse r. Christian 744 Senior r. Armytage 146, 186, 644. 792, 804, 807 Servante r. James 170' Seton r. Slade 99 Seven t: Mihil 426. 477 Sewell r. Angerstein 663,666- r. Jones 862 r. Tavlor 704 Shackell r. Chorlton 467 Shadwell /•. Hutchinson 770, 772 Shakespeare r. Peppin 739 Shannon /■. Bradshed 124 Sharp r. Fowle 481 r. Kev 284,424 r. Miihgan ...122, 127, 385, 437 r. Scarrott 301,575 V. Waterhouse 188 (-.Wright 123 Shaw r. Bran 50 (-.Coffin 194 (-. Jersey (Earl of) 453 c. Kay... 153. 161, 171, 202, 627 r. Lomas 324 (-. Stenton ... 723, 725, 727, 728 Sheape (-. Culpepper 549 Sheard ;-. Venables 277 Sheecomb c. Hawkins 216- Sheehy c. Muskcrry 214 Sheen (-. Rickie <)61 Shelburn (-. Inchiquin 115 Shelburne (Earl) (-. Biddulph ... 391 Shelfer v. City of London Elec- tric Lighting Co 773 Shephcai'd )-. Hong Kong, ice, Corporation 698 Shepiierd /-. Berger 338, 339, 342 - — — (-. Hodsman 86 r. Walker 123, 714 Sheppard (-. Doolan 116- Sherrington (-. Andrews 593 Shervvin (-. Shakespeare 253 Shillibeer (-. Jarvis 109,111 Shilson, Ex parte 291, 296 Shine (-. Dillon 576 Shipwith c. Green 149 Shirlev c Newman 383 Shirretf (-. Hastings 305 Shopland (-. Radlen 44 c. Rydler 72 (-. Kyolcr 42, 246, 458 Shore (-. Wilson 145 Shrewsbury's (Countess) case... 241, 637, 650. 652, 659 Shrewsburv (Earl of) (-. Gould... 187 -^— c. Garfield 869 Shrubb r. Lee 829, 831 Shubrick (-. Salmond 169 Shuttleworth, Ex parte, Deane. Re 299 c. Le Fleming ... 732 Sidebotham (-.Holland 375 Silcock i: Farmer 287 Silkstone and Dodworth Coal and Iron Co.. In re 466 Table of Cases Cited. xliii PAGE Simmons r. Norton 649, 660 r. Underwood 377 Simons r. Farren 709 r. Johnson 148 r. Patchett 6S Simper r. Foley 747, 748, 778 Simpkiu r. Ashurst 240, 245 Simpson r. Clayton 174, 276, 393 r. GutteridiiC o3 r. Havtopp."^ 468, 470, 472, 473, 474, 485, 486 r. Lamb 71 7'. Lewthwaite 743 r. Margitson ... 164, 237, 243 r. Savage 773 T. Scottish Union Insur- ance Co 692 r. Titterell 313, 331 Sims r. Marryat 686 Singleton r. Williamson 485 Siordet r. Kuczy nski 198 Six Car})enters' case 447, 559 Skeate r. Beale 50 Skelton r. Cole 94, 98 Skerry r. Preston 427, 568 Skidmore v. Booth 499 Skinner r. M'Dowall 112 Skip worth r. Green 227 Skull r. Glenister 84, 87, 742, 744 Slack r. Crewe 70 r. Sharpe 324, 435, 585 Slater r. Dangerfield 262 r. Stone 178,633 Slator r. Brady 41 i: Trimble 41 Sleap r. Newman 306, 307 Sleddon r. Cruikshank 680 Slingsby's case 169 Slipper V. Tottenham and Hamp- stead Junction Rail. Co. ... 182, 700 Smalley '•. Hardinge 291,295 Smallman /•. Agboro w 46 r. Pollard 529, 533 Smallwood r. Sheppards 136 Smart r. Harding 257 r. Jones 134 Smartle r. Williams 275 Smith's charity, In re 400 Smith and Bustard's case 340 and Hartogg, In re. Official Keceiver, Ex parte 300 and Stott, In re 406 ;•. Acock 816 r. Adkins 79 f. Arnold 173 V. Ashforth 509. 519. 559 ?;. Barrett 19 r. Chance 803 r. Chichester 398 V. Clark 3S0 r. Clegg 206, 207 V. Compton 724 r. Darby 188 r. Day 159, 162, 218. 221, 227, 454 r. Durrant 179 r. Egginton 404 r. Eldridge ...570, 571, 580, 586 PAGE Smith r. Farr 499 r. Goodwin 449, 523- V. Gronow 287 — - r. Harwich (Mayor,&c.of) 188 V. Howdeu 741 - — r. Humble... 593, .595, 603, 615- r. Hunt 768 r. Jersey (Earl of) ... 146. 218, 219' r. Jones 222 • r. Kenrlck 758 r. Malings 430' r. Mapleback ... 276,314,316, 318, 415, 4.54, 458 r. Marrable 184,638 I-. Milles 304 r. Pearce 428 r. Peat 627, 640 r. Pocklington 60 r. Raleigh 578 r. Render 685 v. Roberts 321 r. Robinson 614 r. Russell 477, 528,531 V. Scott 569 r. Smith 310 r. Tett 842,856 V. Torr 454, 524 r. Twoart 570, 576, 584 t'. Walton 146,374,411 V. White 211, 564, 568, 705 r. Widlake 10 i: Wilson 145 V. Wright 525. 526 Smyth, Ex parte 433 r. Carter 653 c. Nangle ^392 Sneesby r. Thorne 117,122 Snell c. Finch 4.58, 462, 495, .549 Snow r. Cutler 216 Soady v. Wilson 605 SoUey V. Wood 82, 393 Solly r. Forbes 143 Somerset (Duke) v. Fogwell ... 87, 88 Soprani f. Skurro 20 1 Sorsbie c. Park 170 Soulsby '(■. Neving... 578, 785, 786, 787 Souter r. Drake T 101, 259 Southall V. Lcadbetter 406 Southampton (Lord) v. Brown 414, 563 Southcomb r. Exeter (Bishop)... 122 Southcote r. Hoare 169 South Eastern Rail. Co. r. Knott 122 South Kensington Stores, In re 436, 466, 467 Southouse i". Jenkins 4 Southport and W. Lancashire Banking Co. r. Thompson 681 Southweir«;. Scotter 263, 325 Sparrow r. Bristol (Earl) 282 v. Hawkes 384 Spedding r. Nevell 67,68 Spencer v. Marriott 721, 722, 726 V. Parry 596, 600 Re ....'. ^. i2, Spencer's case 172, 173, 174, 175, 176. 254. 263, 265,270 Spicer r. Barnard 759, 763, 7i;!) xliv Table of Cases Cited. PAGE Spicer v. Maitiu 707 ayley 251 r. Binstead ...529, 530, 533, 535 r. Cuyler 68 r. Greenish 549 r. Hay 96, 124 • r. Hunt 271 r. Jameson 773, 776 r. Leeson 219. 746 • /'.Nicholson 627 ;•. Saver 795 r. Smale 462 r. Small 63 /•. Southend Hotel Co. 174. 717 r. Wakley 631 r. Warner 348 r. Willis 560 Whiteacre r. S_vmonds i$84 Whitehead /■. Bennett (■)()9 r. Clifford 320. 58(;. 587 ■ r. Parks 753. 758 r. Taylor 460, 496 Whitelock r. Hutchinson 734 Whitelock's case 414 Whiteman c. Kinu' 457 Whitfield r. Brandwood 593. 595, 603 r. Pindar 433 V. Weedon 656 xlviii Table of Cases Cited. PAGE Whitham v. Kershaw ()58 Whitley r. Eoberts 455 Whitlock r. Horton IB, 140 Whitmore v. Em})soii 681 r. Humphries 244. 782 r. Walker 55,59 Whittaker r. Barker 805 Whittington, Ex ])arte B45 Whittome v. Lamb Kil, 414 Whitton r. Peacock 2H4. 740 Whitty -i!. Lord Dillon ()57, (589 Whitworth r. Humphreys 850 r. Madden f 519, 5()1 r. Hmith 557, 559 Wickenden >: Webster 707 Wickham r. Bath (Maniuis) 74 /•. Hawker 191, 729, 788, 7()0 /■. Lee 787. 788 Wigglesworth r. Dallison 14(i, 180, (•.44. 791. 792, 795 Wight r. Dickson 717 Wilbraham v. Livesay 704, 801 V. Snow 447, 450. 52(5 Wilcox r. Marshall ' lOH i-. Bedhead 112 Wilcoxou V. Searby 585 Wildbor r. Rainforth 881 Wilde ?-. Waters i!()7. ()84 Wilder r. Speer 50(> Wilkins r. Wood (544 Wilkinson r. Calvert 8(51 /•. Ca wood 807, 428 /•. (elements 122 r. Colley 8(59. 786, 841 r. Collyer 614 r. Evans 94 r. Gaston 160 r. Grant 207 r. Hall... 170, 236, 250, 858, 785 v. Haygarth (552, 787 r. Jagger 881 r. Peel 488 i: Rogers 1 74, 704, 705. 709 Wilks r. Back (58 Willesden (Overseers of) r. Over- seers of Paddinsfton 358 Williams, Ex parte 249, 298 r. Bartholomew ...844, 425 r. Bosanquet...273. 275, 808. 888 r. Burrell 188.718.728 r. Earle...l78. 174, 175, 17(5, 695, 702 r. Evans ...2, 107, 275, 681 r. Groucott (556. 777 r. Hay ward ...268, 276, 481 V. Heales 305 r. Holmes 475 — — c. James 742 r. Jones 188, 561 (-.Jordan 94,98 r. Lake 94 r. Lewsey 580 • r. Morris 515 r. Pott 441 (-.Roberts 500.501 PAGE Williams r. Sawyer 814 r. Stiven 883,44.5,4.50, 452, 488 I'. Williams 110,641 Williamson '-. Williamson 695 Willingale r. Maitland 82 Willingham r. Joyce 114. 125- Willis r. Parkinson 657 r. Whitewood 43, 44 Willoughby r. Backhouse 519, 520, 560 Wills i: Stradling 107 VVillson r. Love 421 AVilmore v. Cain 151 Wilmott c. Barber 118 AVilson, In re. Lord Hastings, Ex parte 301 Wilson, Re 295 r. Abbott 281,287 r. Anderson 149 /-. Bagshaw 74(> /-. Hart 178. 174. 704, 715, 722 r. Finch-Hatton 184,688 r. Nicrhtingale ...510,511,522 /-. Sewell '" 216, 818, 822 r. Wallani 290 r. West Hartlepool Rail- way Co 107, 12(> i: Whateley 677 n Wigg 806,308 f. Willes 787 r. Wilson 261.693 Wilton V. Dunn 5i>' Wiltshire r. Cottrell 661 r. Sidford 655 AVinch v. Winchester lli> Windham's case 162 Windsmore >: Hubbard 154 Windsor's case (Dean and Chap- ter) 173. Winn r. Bull 112 Winship r. Hudspeth 782 Winter v. Brockwell 757 T. Dumergue 261 ■?-. Loved ay 213,221 /-. Trimmer 419 Winterbottom r. Ingham 252, 253, 58(> Winterbourne r. Morgan 512 Wintle r. Freeman 529 Wiscot's case 4(> Wise r. Metcalfe (587 Withers r. Birchman 170 Witty r. Williams 407 WoUaston r. Hakewill ...172. 2(59, 276, 804, 805, 30(> t-. Stafford 524r Wolveridge v. Steward 171, 272. 274 Womersley r. Dalley 805 Wood and Chiver's case 340. 422 Wood /-. Avhvard 94. 9(5 r. Beard 163 r. Clarke 474 r. Cooper 712 r. Chopper Miners' Co 169 r. Davi.s 96, 165 r. Day 179- Table of Cases Cited. xlix PAGE Wood r. Hewett ..; G63, G(i5 r. Leadbittcr...8i. 134, 515, 756, 757 r. Manlev 515, 757 /•. Miilglcy 112 r. Nann 518 r. Kowcliffe 194,195 r. Scanh 97, 118 r. Tate 460 r. Waud...750, 752, 753, 755, 758 Woodcock r. Gibson 34 r. Nuth 322, 323 r. Titterton 491 Woodcroft r. Thompson 507 AVoodgate r. KnatchbuU 504 Woodhouse's case 159 Woodhouse r. Walker 651 Woods r. Durrant 509 r. Hyde 122. 125, 370 r. Pope 640 Woodward v. Aston 317 r. Gyles 420,653 AVoolam r. Hearn 97, 119 Woolcock f. Dew 628 Wooler r. Knott 714 Woolley V. Watling 572 Wootley r. Gregory 400, 511 Wootten V. Steffenoni 77, 263 Worcester School Trustees r. Rowlands 629, 631, 639, 640 Worledge r. Ben burv 65 Wormald r. Maitland 203, 204 Wortham r. Lord Dacre 396 Worthington r. Gimson...l51, 746, 757 ^ r. Warrington... 102, 197 Wrenford r. Gyles 167, 313 Wright r. Burroughs 266 r. Cartwriglit 153, 155, 167 v. Colls 102 v. Dewes 476, 478 r. Dickson 143 r. GofE 227 r. Howard 751 r. St. George Ill r. Smith 417 r. Stanstield 204 PAGE Wrisht r. Stavert 92 - r. Tracy 231 (-.Williams 731,753 Wrighton r. Newton 262 Wroteslev '•. Adams 162 Wyatt r.'Cole 231, 233 Wyburd r. Tuck 153 W vudham r. Halcombe 223 " . r. Wav 190, 659, 675 Wynne, In re.....". ...49, 125 v. Bampton 406 r. Ingleljy 670,671 Y. Yates V. Boen 48 V. Cole 264 r. Eastwood 515, 559 . /-.Jack 748 r. Eatledge .529,532 Yellowly v. Gower 186, 218, 6.50 Yeo v. Leman 593 Yeoman r. Ellis 253 f. Ellison 451 Young V. Brompton, kc. W. W. Co 544 r. Holmes 53 r. Mantz 628 r. Raincock 723, 727 V. Spencer 649 Zappert, Re 294 Zerfass, Ex parte. Sand well, In re 293 Zouch V. Parsons 41, 318 V. Willingale 344, 382, 383, 45:^ L.T. ( li ) LIST AND EXPLANATION OF THE ABBREVIATIONS. A. C. (preceded by [1891], ) j p year may be) ) ^^ A. & E Adolphus >.t Ellis. Ambl Ambler. Andr Andrews. Anstr Anst ruther. Atk Atkyns. Bac. Abr Bacon's AbridEfment. Ball & B Ball & Beatty"'(Irish). Barnard Barnardiston. Barnes Barnes's Notes. B. & A Barnewall & Alderson. B. & Ad Barnewall & Adolphus. B. & C Barnewall & Cresswell. B. & S Best & Smith. Beav Beavan. Bing Bingham (Old Series). Bing., N. C. ...Bingham, New Cases. Blac. Com Blackstone's Commentaries. Blac. H Henry Blackstone. Black. W Sir W. Blackstone. Bli Bliffh's House of Lords Cases. Bli. N. S Bligh's New Series. B. & P Bosanquet & Puller. B. & P., N. R.... Do.— New Reports. Bradby Bradby on Distresses (2nded.). Bridg Bridgman. B. k. B Broderip & Bingham. Bro. Abr Brooke's Abridgment. Bro. C. C Brown's Chancery Cases. Bro. P. C Brown's Cases in Parliament. Bullen BuUen on Distress. Bulk N. P Bullen's Nisi Prius. Bulst Bulstrode. Bunb Bunbury. Burr Burrow. Camp Cam pLell. Q -D (Common Bench Reports (by ( Manning, Granger & Scott). C B N S ^- Common Bench Reports, New ■' ■ * ( Series (by Scott). C & E -^ Cababe and Ellis's Nisi Prius ( Reports. C. & J Crompton & Jeryis. C. & K Carrington & Kirwan. Car. &; M Carrington k, Marshman. C. & P Carrington ds: Paj'ne. Carth Carthew. Ch. (preceded by [1891], ] Law Reports, [1892], or [189B] as the - Chancery Diyi- year may be) ] sion. Ch. Cas Cases in Chancery. Chit Chitty's Reports. Chit. Arch. ...Chitty's Archbold's Practice. Chit. Forms ...Chitty's Forms (9th ed.). Chit. PI Chitty on Pleading (7th ed.). €L & Fin Clark & Finnelly. Co. Lit Coke upon Littleton. Co. R Lord Coke's Reports. Cole Ejec Cole on Ejectment. Coll. C. C Colly er's Chancer^' Cases. Comb Comberbach. Com Comyn. Com. Dig Comyn's Digest. Conn. &; La\y... Connor and Lawson (Irish). Cowp Co wper. Cr. & Ph Craig & Phillips. Cro. Eliz Croke's Reports, vol. 1, Cro. Jac Croke's Reports, vol. 2. Cro. Car Croke's Reports, vol. 3. C. & M Crompton & Meeson. C, M. & R. ...Crompton, Meeson & Roscoe. Dart V. & P.... Dart on Vendors & Pur- chasers. D. & M Dayison ct Meriyale. Deac Deacon. Deac. & Chit.. ..Deacon & Chitty. De G., F. & J. De Gex, Fisher & Jones. De G. & J De Gex & Jones. De G., J. & S...De Gex, Jones & Smith. De G., M. & G.DeGex,Macnaghten& Gordon. De G. & Sm. ...De Gex & Smale. Dick Dickens. Dougl Douglas. Dow Dow's Reports in Parliament. Dow & CI Dow & Clark. Dowl Dowling's Practice Cases. Dowd. N. S. ...Do.— (New Series). D. & L Dowling & Lowndes. D. & R Dowling & Ryland. Drew Drewry . Drew. & Sm. ...Drewry & Smale. Dru. & W Drury & Warren (Irish). E. & B Ellis & Blackburn. E., B. & E. Ellis, Blackburn & EUis. E. & E Ellis & Ellis. Eq. Cas. Abr. ..Equity Cases Abridged. Esp Espinasse. Exch Exchequer Reports. Fitz. N. B Fitzherbert'sNaturaBrevium. Fort Fortescue. F. & F Foster & Finlaison. Freem Freeman. Fry Fry on Specific Performance, G. & D Gale & Dayison. G. & J Glyn & Jameson. G. & M Gale & Merivale. Giff Giffard's Reports. Godb Godbolt. H. & C Hurlstone & Coltman. H. & M Hemming & Miller. H. & N Hurlstone & Norman. H. & R Harrison &; Rutherford. H. & T HalKt TweUs. Hard Hardres. Hawk. P. C. ...Hawkins's Pleas of the Crown. Hob Hobart. Holt, N. P. C... Holt's Nisi Prius Cases. -rr T p (House of Lords Cases, by Clark a. ij. Las. ... I ^ Finnelly— and Clark. Hud. k B Hudson k Brooke (Irish). Hut Huttou. Inst Lord Coke's Institutes. Ir. Ch Irisli Chancery. Ir. Eq. R Irish Equity Reports. Ir. L. R Irish Law Reports. Jac Jacob. J. & W Jacob & Walker. Johns Johnson. J. & H Johnson & Hemming. Jon. & L Jones & Latouche (Irish). d2 lii List and Explanation of Abbeeviations. Jon. W Sir. Wm. Jones. Jon. T Sir Tiios. Jones. Jur Jurist (Old Series). Jur., N. S Jurist (New Series). Kay & J Kay & Johnson. Keb Keble. Ken., Ld Lord Kenyon's Reports. J -r (Law Journal Reports, New [ Series from 18S1. L. J., 0. S Do.— Old Series, 1822—1881. T -D TT J (The Law Reports (from 1865) ■' ■ ■■■ ( — House of Lords Cases. L. R., H. L. Sc. Do. — Scotch Appeals. L. R., P. C Do. — Privy Council. L. R., Ch. Ap...Do. — Chancery Appeals. L. R., Eq Do.— Equity Cases. L. R., Q. B. ...Do. — Queen's Bench. L. R., C. P. ...Do. — Common Pleas. L. R., Ex Do — Exchequer. L. R., C. C. ...Do. — Crown Cases Reserved. L. R., P. & D... Do.— Probate and Divorce. L. R., Adm. & f Do. — Admiralty and Ecclesi- Ecc ( astical. L R ^p,3 (The Law Reports (from 1875) ■p ■' ^^^ ■ j —House of Lords and Privy ( Council Cases. L R Ch D ■' ^^' — Clhfincery Division and ■' ■ 'I Appeals therefrom. L R B D * ^*^" — Q^^^^^'^ Bench Division ■ ■ ■ ( and Appeals therefrom. T R C P D -^ ^^' — Common Pleas Division '■'■■■( and Appeals therefrom. L R Ex D - ^^' — l^-'^'^^^'^quer Division and ■' " ' ( Appeals therefrom. L. T Law Times (New Series). L. T.. 0. S. ...Law Times (Old Series). Leg. Obs Legal Observer. Leon I^eonard. Lev Levinz. Lit Littleton's Tenures. L., M. & P Lowndes, Maxwell & Pollock. Lutw Lutwyche. M'Clel :M-Cleland. M'CleL & You.M-Cleland & Younge. Mac. & G Macnaghten & Gordon. Macq.H.L.C.I^fq'^'^'l"'^ ?;^"f ^f Lords ^ ( Cases (Scotch Appeals). Madd Haddock. M. & G Manning r. Granger. M. cV: P Moore & Payne. M. &c R Manning & Rvland. M. & S Maule & Selwyn. M. & W Meeson & Welsby. Marsh Marshall. Mer Merivale. Mod Modern Reports. Mood Moody. Moo. & M Moody &; Malkin. Moo. & R Moody & Robinson. Moor Sir F. Moor's Reports (1662). Moo I. B. Moore (1815—1827). Moo. eriod within which arrears of rent may be dis- trained for from six 3'ears to one, by exempting from distress c. 61. c. 8 Iviii Historical Outline. agricultural machinery and live stock taken in for breeding or feeding, by limiting the charges upon a distress, by extending the time within which a distress may be redeemed, and by requiring all distresses to be taken by certificated bailitis. e.'72. ^'^^' The Housing of the Working Classes Act, 1885, greatly infringed a theretofore leading rule of the law of landlord and tenant by the provision that in every contract for letting a house at a certain low rent there shall be implied a condition that the house is reasonably fit for human habitation. This clause is repeated, without amend- ment, in sect. 75 of the Housing of Working Classes Act, 1890. 50 & 51 Vict. Two Allotment Acts were passed in 1887, the Allotments and Cottage Gardens (Compensation for Crops) Act, 1887, securing compensation to the tenants of allotments and cottage gardens on 0*^48^^ ^'^^^- quitting for seed and labour, and the Allotments Act, 1887, obliging sanitary authorities to acquire land for letting in allotments to the labouring population in cases where such allotments should not be obtainable from private owners at a reasonable rent. 52 Yict. The Customs and Inland Revenue Act, 1888, by sect. 18 imposed a new and severe penalty for not stamping leases or agreements for leases, such penalty to be borne by the lessee or intending lessee in ever}^ case ; this enactment is repealed and re-enacted by the Consolidating Stamp Act, 1891. ^^ Ji ^^ ^''^'^^' '^^^'^ ^^""^ *^^ Distress Amendment Act, 1888, by dispensing with appraisement on distress except where required by the tenant, by extending the time to replevy from five to fifteen days, and by enacting that no distress shall be levied except by a bailiff holding a certificate from a County Court, applies generally to all tenancies a set of enactments which were specially applied to agricultural hold- ings only by the Agricultural Holdings Act, 1883. The same act exempts from distress the bedding, clothes and tools of trade of a tenant up to the value of 51. and empowers (without however repeal- ing the Distress (Costs) Act, 1817) the Lord Chancellor to make rules as to distress and to prescribe a scale of expenses, and rules with scales have been issued accordingl3^ 51 & 52 Vict. The County Courts Act, 1888, need merely be mentioned as con- c. 43. ... solidating prior County Court enactments as to replevin, recovery of small tenements, and ejectment. 51 & 52 Vict. The Preferential Payments in Bankruptcy Act, 1888, enacts that in case of a landlord distraining or having distrained on any goods of a bankrupt, or a company being wound up, or a tenant dying insolvent within three months before the receiving order, the wind- ing-up order, or the death respectively, certain preferential debts {e.g. rates, taxes, salaries, and wages) shall be a *' first charge " on the goods distrained on or the proceeds thereof. c. 62. Historical Outline. lix The Tenants' Comiiensation Act, 1890, greatly mitigates in favour 53 ^ 5^ y^^^.^ of the tenants of land, the hard rule of the common law that the c- ^"• tenants of mortgaged land, being trespassers in like manner as the landlord from which they derive title, have no rights against a mort- gagee in possession, but may be ejected by such mortgagee without an}' notice to quit whatever and without any right against him for compensation under the Agricultural Holdings Act or the custom of the country for improvements or tillages. The Conveyancing and Law of Property iVct, 1892, amends the 55 & 56 Vict. 14th section of the Conveyancing and Law of Property Act, 1881, b,y '^' ' ' allowing (except in the case of agricultural, mining and certain other leases,) a limited relief to be given against forfeiture incurred b}' bankruptcy, by expressh' allowing " relief against forfeiture " to be granted to under-lessees, b}' requiring that no premium is to be exacted by a lessor for a licence to assign or underlet, and in other small particulars. As originally introduced in the House of Com- mons b}' Mr. Bolton, this act was not onh' much more extensive than as it now appears, but was clear in its language. During its passage through Parliament its application was much cut down, and what is of more importance to lawyers as such, its language became very obscure. The Law of Distress Amendment Act, 1895, amends the Act of 5S .t 59 Yict. 1888 b}' enacting that the certificate of a bailiff may be cancelled at " " any time b}' the judge of the County Court which granted it, instead of b}' the judge of any County Court, imposes a fine upon an}'' person without a certificate disti'aining contrary to the Act of 1888, authorizes the Lord Chancellor to make rules fixing the duration of certificates, and empowers a Court of Summary Jurisdiction to direct restoration or award compensation in cases where clothes or bedding or tools up to 5?. value have been seized or sold under a distress. The Agricultural Holdings Act, 1883, applies to market gardens. The Market Gardeners' Compensation Act, 1895, extends that 58 & 59 Yict. application by giving compensation for the planting of strawberries, asparagus and fruit trees by market garden tenants, and allows them to remove fruit trees planted by them and not permaneiitly set out, in cases where after the 1st January, 1898, it has been agreed in writing that a holding shall be let or treated as a market garden or where a holding was at that date in use as a market garden with the knowledge of the landlord, and the tenant has planted fruit trees, strawberries, ikc, without having received previously to the planting any written notice of dissent by the landlord. Moreover in either case there is a power given to remove market garden buildings and fruit trees, and fruit bushes planted by the tenant and not permanently set out. Ix Leading Propositions. 5S & 60 Vict, c. 16. Lastl,y, the Agricultural Rates Act, 1896, exempts the occupier of " agricultural land," or owner, if he be rated instead of the occupier, from one-half of the rates for a period of five years. Such, very brief!}', are the principal English (c) statutes aftecting the relation of landlord and tenant. Landlord and Tenant. Reversion. Tenant for Years. Tenant from Year to Year. Tenant at Will. Tenant by Sufferance. Lease. Settled Estates, &c. Leading Projjositions of Statute and Case Law. Definitions. The relation of landlord and tenant is created by the landlord allowing the tenant to enjoy the landlord's house or land for a consideration termed rent, recoverable by distress. Reversion is the interest remaining in the landlord, who is there- fore frequently termed the reversioner. A man is a tenant for years where the landlord lets land or tene- ments to him for a term of certain years, agreed ui)on between the landlord and the tenant, and the tenant enters by force of the lease. A tenant from year to year is one who, by a contract of tenancy, implied from entry and the payment of rent with reference to a yearly tenancy, is entitled to half (d) a year's notice to quit, expiring at that period of the 3'ear at which his tenancy commenced. A tenancy at will takes place where the letting is for no certain term, but is to continue for the joint will of both parties, and no longer. » A tenant by sufferance is one who comes in b}^ right and holds over without right, as if a tenant for the life of another continue to hold after the death of him for whose life he entered. Any contract of tenancy is a lease, but the expression " lease " is commonly restricted to a contract of tenancy for years or lives by deed. Disabilities of Landlords. Infants, lunatics, owners of settled estates and other persons under disability become landlords under certain statutory restric- (c) Bi;t few of the English statutes re- late also to Scotland or Ireland. The fol- lowing are exceptions : — The Emblements Act, 1851 (14 & 15 Vict. c. 25), and the Lodgers' Goods Protection Act, 1871 (34 & 35 Vict. c. 79), relate to Ireland, Avhile the Apportionment Act, 1870 (33 & 34 Vict. c. 35), and the Railwa)' Rolling Stock Protection Act, 1872 (35 k 36 Vict. c. .'^O), relate both to Ireland and Scotland. The Scotch oommon law of the subject is widely different from the English, and the Scotch statutes which specifically relate to the subject are very few. See Hunter's Land- lord and Tenant. The Irish common law, on the other hand, is identical with the English, and the Irish statutes very numerous. The principal Irish statutes are : — 14 & 15 Vict. c. 57 (remedy by tenant distrained on by superior after paying rent to immediate landlord) ; 23 & 24 Vict. c. 154), summary ejectment, pro- longation of term in lieu of emblements, distress for one year's rent only) ; 33 & 34 Vict. c. 45 (legality of tenant right) ; and 44 & 45 Vict. c. 49, "The Land Law (Ireland) Act, 1881." ^«; Furlong's Land- lord and Tenant. (d) If tlie Agricultural Holdings Act applies (see 361, j!;os<) the notice is a year's notice. Disabilities of Tenants. Ixi tions, the principal restriction being that owners for life may bind remaindermen by leases for building purposes for 99 years, for mining purposes for 60 years, and for otlier purposes for 21 years and no longer, and that those who represent landlords under disa- bility make leases under the supervision of the Chancery Division of the High Court of Justice. Settled Laud Act, 1882, s. G, p. 7, imst. Ecclesiastical corporations may, with the consent of the Ecclesias- Ecclesiastical tical Commissioners, grant building leases for not more than 99 °^roi'i ions. years. Parsons ma}^ let glebe for not more than 14 years (or 20 years, if the tenant covenant for improvements), with the consent of bishop and patron. Ecclesiastical Leases Act, 1S42, p. 28, post. Municipal corporations may not let lands for more than 31 years Municipal v/ithout the consent of the Treasury. oipoia ions. Municipal Corporations Act, 1SS2, s. 108, p. 19, post. Disabilities of Tenants. Spiritual persons may not take leases of more than 80 acres of Spiritual land without the consent in writing of the bishop of the diocese. peisons. Pluralities Act, 1838, s. 28, p. 73, j^ost. A lease to an infant is not void, but only voidable on his coming Infants, of age. Baylis v. Dynelcy, 3 M. & S. 477, and p. 74, post. Agreement for Lease (e). An agreement for a lease must be in writing and signed, to be Specific 1 ' 1 1 i 1 1 J 1 . Performance', sued upon as such ; but lie who enters and pays, or agrees to pay rent under an oral agreement for a lease, or otherwise partly performs the agreement, may obtain a decree for a lease. Stat. Frauds, s. 4, p. 90, ^wsC; Nimnv. Fabian, L. R., Ch. 35, p. 108. j^ost. The stamp upon an agreement for a lease not exceeding 35 3'ears Stamp, is the same as the stamp upon a lease, and the stamp upon a lease made in conformity with an agreement duly stamped is sixpence. Stamp Act, 1891, s. 75, p. 100. Under an agreement for a lease for years, the intended tenant Title of may not call for the title of the intended lessor, whether the ^''^"*'^°'"^^- premises intended to be leased be freehold or leasehold. Vendor and Purchaser Act, 1874, s. 2, p. 2, post ; Conveyancing Act, 1881, s. 13, p. 2, jJost. (e) As to the position of a person enter- for a lease, see Walsh v. Lonsdale, 21 ing and paying rent under an agreement Ch. D. 9, and p. 91, post. Ixii Leading Propositions. Mode of making. Entry under void. Custom of Coimtry. Discrepancy of Lease and Counterpart. Lease. A lease for three years or less may be Avritten or oral, but a lease for more than three years must be by deed, otherwise it is void. Stat. Frauds, s. 1 ; Real Property Act, 1S45, s. 3, p. 135, post. He who enters and pays, or agrees to pa}-, rent under a void lease, is tenant from year to year upon such terms of the void lease as are consistent with a 3'early tenancy. Doc V. Bell, 2 Sm. L. C. 96, and p. 231, jyost. The custom of the country is incorporated in every lease unless expressly excluded. IVigrjlcsiuorth v. DaUison, 1 Sm. L. C. 598, and p. 146, 'post. The ordinary rule is, that where the lease and the counterpart differ, the lease prevails, but this rule does not apply where there is an evident mistake in the lease. Burchdl V. Clark, 2 C. P. D. 88, and p. 137, post. Quiet Enjoyment. Fitness of Premises. Implied Contracts of Landlord. The landlord impliedly contracts with the tenant to give him possession, and guarantees the tenant against eviction bj'^ any person having a title paramount to that of the landlord, and against the disturbance which would be occasioned b}- some person enforcing a charge which the landlord ought to have satisfied. See Coe v. Clay, 5 Bing. 440 ; 30 R. R. 699 ; Bandy v. C'articricjhi, 8 Ex. 913, and p. 718, j^ost. There is an implied contract by the landlord of a furnished house that it is fit for occupation ; but with respect to an unfurnished house (unless it be let at a certain low rent) or land there is no such implied contract. JFilson V. Finch Hatton, 2 Ex. D. 336 ; Hart v. Windsor, 12 M. k W, 68, and p, 184, post. To pay rent, &c. Not to deny Title. Implied Contracts of Tenant. The tenant implied]}' contracts with the landlord to paj' rent, not to commit or permit waste, and to give up possession at the end of the tenancy. See Distress for Rent Act, 1737, s. 14 ; Morrison v. Chadwick, 7 C. B. 266 ; Henderson v. Squire, L. R., 4 Q. B. 1. A tenant is estopped from alleging that his landlord had no title at the period of the demise ; but he is not estopped from alleging that the title of the landlord has expired. Cook V. Loxley, 5 T. R. 4 ; 2 R. R. 521 ; Dclancy v. Fox, 2 C. B., K S. 768, and p. 225, post. Express Conteacts of Landlord. Ixiii Express Contracts of Landlord. The express contract of a landlord for quiet enjoyment as usuall}' Quiet worded is less than the implied one (which it excludes), and does J^°J^>'^'*^'^ • not guarantee the tenant against eviction by title paramount. See Merrill v. Frame, i Tamit. 329 ; 13 R. R. 612 ; and p. 718, 2Mst. Where a landlord contracts to repair, a notice by the tenant that Repair, the premises need repair is an implied condition precedent to the right of action on such contract. MakinY. WatJcinson, L. R., 6 Ex. 25, and p. 635, jwst. Express Contracts of Tenant. The contract for rent must be performed in all events, and not- To pay Rent, withstanding the destruction of the premises by fire or other cause, whether preventible or not. See Bdfour v. Weston, 1 T. R. 310 ; 1 R. R. 210 ; and p. 631, post. The contract to insure is broken by a failure to insure for any Insurance, time, however short, and the breach of such a contract is a con- tinuing breach. Doe V. Shewin, 3 Camp. 134 ; Doc v. Gladwin, G Q. B. 953. The contract to repair must be performed in all events, notwith- To repair, standing the destruction of the premises b}' fire or other cause, whether preventible or not. Bullock Y. Dommit, 6 T. R. 650, and p. 631, post. The damages for non-repair are measured by the injury to the Damages for non-repair, reversion. Mills V. East London Union, L. R. , S C. P. 79, and p. 639, post. The contract not to assign without licence is not broken by an Against . , , . I. , Assignment. assignment by operation oi law. Slipper V. Tottenham, d-c, Hail. Co., L. R., 4 Eq. 112, and p. 700, ^josi Where there is a contract not to assign without licence, or not to ^otto do do any other act without licence of the landlord, such licence, if Licence, given, extends onl}^ to the single assignment or other act for which the licence is required. Law of Property Amendment Act, 1859, s. 1, and p. 696, jwst. Rent, Rent is payable on the demised premises where there is no Where covenant to pay it ; but in the case of a covenant, it is incumbent on the tenant to seek out the person to whom it is payable. Haldane v. Johnson, 8 Ex. 689, and p. 425, post. Ixiv Deductions. Apportion- ment in respect of Estate ; in respect of Time. Satisfaction of Rent by Execution Creditor. Leading Propositions. The tenant may deduct from rent any payment which lie is obliged to make in order to protect himself from a distress by a ground landlord. See Taylor v. Zamira, 6 Taunt. 524 ; 16 R. R. 668. Rent is apportioned in respect of estate where part of the demised premises changes hands, e.fi. where the tenant surrenders or is evicted from part, or where there is a severance of the reversion. All rents as between the heirs and executors of the landlord are considered as growing due from day to day, and are apportionable in respect of time accordingly, but the tenant may not be resorted to for an apportioned part. Apportionment Act, 1870, p. 434, post. As against an execution creditor, the landlord has a claim for 1 year's arrears of rent if the tenancy be for a year or more ; and if the tenancy be for less than a year, for the arrears of rent accruing during 4 terms of payment. Landlord and Tenant Act, 1709, s. 1 ; County Courts Act, 1888, s. 160, p. 527, 2^081. Subject- matters of Distress. Exemptions from distress. Distress for Rent. A distress for rent ma}' be made by or on behalf of the landlord vipon all goods and animals, whether belonging to the tenant or not, found upon the demised premises, except that — (1) Fixtures, things in actual use, things in the custody of the law, things perishable, things delivered to the tenant in the way of his trade, bedding, clothes, and tools up to 51. value, animals of a wild nature, the goods of an ambassador, and gas-meters, and if the Agricultural Holdings Act applies (see Ixix, infra), hired machinery, and live stock not belonging to the tenant which is on the premises for breeding purposes, are absolutely privileged from distress. (2) The goods of a lodger, and railway rolHng stock not belonging to the tenant, are absolutely privileged from distress, upon the lodger or owner complying with the terms of the Lodgers' Goods Protection Act, 1871, and Railway Rolling Stock Protection Act, 1872. (3) The tools of the tenant's trade, and his sheep and beasts of the plough, and if the Agricultural Holdings Act applies (see Ixix, infra), live stock not belonging to the tenant taken in to be fed at a fair price to be paid by the owner Distress for Eent. Ixv to the tenant, are conditionally privileged from distress — that is, they are privileged if there he other sufficient distress upon the i^remises, and not otherwise. See Chap. XL, p. 442, jmst. If any tenant fraudulently, and in order to avoid a distress, remove Fraudulent any goods or chattels from the demised premises, the landlord may, ■within 30 days, seize and sell them wherever found, except in the hands of a bond fide purchaser for value. Distress for Rent Act, 1737, s. 1, p. 499, 2wsf.. A distress may be made at any time within 6 months after deter- Distress after mination of the tenancy. Landlord and Tenant Act, 1700, s. 6, p. 488, post. A distress must be made within 6 years, or if the Agricultural Amount Holdings Act applies, 1 year (see Ixix., infra, after the rent distrained recoverable. for is due or acknowledged in writing to be due. Real Property Limitation Act, 1833, s. 42, p. 489, -pod. If the landlord does not distrain in person, the distress can be Distress by , . , , , .„ 1 1 -T/Y" Certificated levied onl}^ by a certmcatetl bailm. Bailiff. Law of Distress Amendment Act, 1888, s. 7, p. 493, post. A distress may be impounded on the premises where taken ; and Impounding . . on rremises. when it is so impounded, any person may enter the premises in order to view, appraise and buy it. Distress for Rent Act, 1737, s. 10, and p. 508, iwst. Persons impounding animals in a pound must supply them with Impounding food and water, and may recover the expense from the owner. In default of supply by the impounder, any person may supply food and water, and may recover the expense from the owner, or, after 7 daj^s' impounding, may pay himself by sale of the animal, rendering the overplus to the owner. Cruelty to Animals Acts, 1849 and 1854, p. 506, j^ost. The landlord may, if he pleases, retain the distress as a pledge Retainer of Distress us until the rent be paid, or be proved not to have been due b}' action of pledge. replevin. For 5 days, or if the tenant so require in writing, 15 days after seizure, but no longer, the tenant has an absolute right to treat the distress as a pledge, and proceed to recover it by action of replevin. After the 5 or 15 days, the tenant has a conditional right to replevy, exerciseable at any time before an actual sale. See 2 W. & M. sess.. 1, c. 5 ; Jacuh v. Kivg, 5 Taunt. 451 ; 15 R. R. 550, p. 509, post. L.T. e Ixvi Leading Propositions. Sale of Distress. Unless the tenant replev.y, the landlord, at any time after 5 days, or if the tenant so require in writing, 15 days from the seizure, may sell the distress to satisfy the rent and expenses ; but he must first give notice in writing to the tenant, and cause the distress to be appraised. He is not bound to sell. 2 W. Sc M. sess. 1, c. 5 ; Philpot v. Leliain, 35 L. T. 855, and p. 515, x>ost. Two scales of expenses are limited by statutory rules, the one applicable to distresses for amounts exceeding 20Z., and the other to distresses for amounts not exceeding 20Z. See Distress for Rent Rules, p. 516, pos(!. In the case of an illegal distress, e.g. where no rent is due, or where goods privileged from distress are seized, the tenant may rescue the goods before impounding, or obtain restitution at Any time before sale by replevin, or, at his option, he may sue for damages. If no rent be due, and the distress be sold, he recovers double the value. See 2 ^\. & :\I. sess. 1, c. 5, and Chap. XII., pp. 539, 557, post. Remedies for In the case of an irregular distress, e.g. where the distress is sold Distress^ without notice, or not for the best price, the tenant ma}-- recover full satisfaction for the special damage sustained, and no more. Distress for Rent Act, 1737, s. 19 ; Lucas v. Tarldon, 3 H. & K". 116. Remedy for In the case of an excessive distress, the tenant may recover such IMstress!^ damages as a jury may find to be the value of the goods seized, less the rent due. He is entitled to at least nominal damages. See Chandler \. Doidton, 34 L. J., Ex. 89, and p. 561, 2^0^. Expenses of Distress. Remedies for illegal Distress. Determination of Tenancy. Modes of The principal modes in which a tenanc}^ is determined are notice Determina- ... , j r r -x tJQjj to quit, surrender and lorieiture. Notice to quit A tenanc}' from year to year is, in the absence of an agreement Year"to^Year^ otherwise, determinable by half a year's notice to quit, expiring at the end of some current 3'ear of the tenanc}'. If the Agricultural Holdings Act applies [see Ixix., infra], the notice is a year's notice. The notice to quit need not be in writing, but it must be binding on the noticor, and the noticee must have reason to believe it so to be. The notice to quit need not be delivered to the tenant personally. It is sufficient to deliver it to a person on the premises whose duty it would be to deliver it to the tenant. Doe V. Crick, 5 Esp. 196 ; 8 R. R. 848 ; Jones v. Phipps, L. R., 3 Q. B. 567 ; Tanham v. Nicholson, L. R., 5 H. L. 561, And see Chap. VIII., p. 312, post. Determination of Tenancy. Ixvii If a terminable lease be granted without sajdng who is to have the Option to option of determining it, such option is with the tenant, and not with Tenancy for the landlord. Years. But where a lease provides that it shall become void upon the lessee breaking any of the covenants contained therein, it is at the option of the lessor, not of the lessee, whether the lease shall or shall not be determined. Dann v. Spurrier, 3 B. & P. 399 ; 7 K. R. 797 ; Doe v. Bancks, 4 B. & A. 401 ; 23 R. R. 318. Every express surrender must be by writing, and every express Surrender. surrender of a more than 3 years' term must be by deed. See Real Property Act, 1845, s. 3, p. 313, 'post. A surrender may be implied from anything which amounts to an agreement by the tenant to abandon and by the landlord to resume the premises, e.g. by the delivery of keys, b}- the entering into a new contract of tenanc}', or by the landlord accepting a new tenant. See Pheney. FoppUwdl, 12 C. B., N. S. 334, p. Z\^,post. A forfeiture is incurred ipso facto by breach of a condition in a lease, Forfeiture. but not by a breach of covenant, unless the lease contain a proviso for re-entiy applicable to the breach. If the landlord has a right to re-enter for non-payment of rent (but not otherwise), he may re-enter without formal demand of rent on proving that half a year's rent is in arrear, and that no sufficient distress be found on the premises. See C. L. P. Act, lSr.2, s. 210, p. 837, post. If the landlord at any time, after notice of breach of covenant com- "Waiver of mitted, acknowledges the continuance of the tenancy, e.g. if he distrain or sue for rent due after the forfeiture, he waives the forfeiture and loses his right to re-enter. See Ward v. Day, 5 B. & S. 364, and p. 341, post. Some covenants, e.g. the covenant to insure, are of such a nature Continuing that a breach of them is continuing, so that the effect of a waiver is practically nil. See Doc v. Gladwin, 6 Q. B. 953. A waiver does not extend to any breach of covenant other than Restriction of \\ aiver to that to which it specially relates. particular Brcticii. Law of Property Amendment Act, 1860, s. 6, p. 346, post. Belief against forfeiture for non-pavment of rent, can be obtained, Relief against piz-i-'-ijij lorfeiture, m cases where judgment has been given for the forfeiting landlord e2 Ixviii Leading Propositions. on proof of no sufficient distress on the premises, at any time within 6 months after execution executed and in other cases within a time limited by the discretion of the relieving court upon payment, in either case, of all arrears of rent and full costs. See C. L. P. Act, 1852, s. 210, p. 356, fost. Relief against forfeiture for any breach of covenant or condition except the covenant against assignment or sub-letting without licence^ or, in a mining lease, to permit inspection of books, or for forfeiture (with certain exceptions and limitations) in case of bankruptcy, may be obtained in the High Court b}' the tenant, either in the land- lord's action, if any, to eject him, or in a separate action brought by himself. Conveyancing Acts, 1881, s. 14, and 1892, s. 2, sub-s. 2, p. 349, ■post. Delivery of Possession. Rights of Parties on Determination of Tenancy. The tenant must deliver up complete possession of the premises and is answerable for the holding over of a sub-tenant, ments on a waste are for the benefit of the landlord. Encroach- Hcnderson v. Squire, L. R. , 4 Q. B. 170, and \^. 780, 2)ost ; JVliitmoreY. Huvijihries, L. R., 7 C. P. 1, and p. 782, 2>ost. If a tenant for 3'ears hold over, and pays or agrees to pay rent, he may become a tenant from year to 3^ear upon such terms of his lease as are consistent Avitli a yearly tenancy, and it is a question of fact whether he becomes such a tenant or not. See Hyati v. GHJfiths, 17 Q. B. .^.05, and p. 783, 2}osL If a tenant for years wilfull}- hold over after written demand of possession, the landlord may sue him for damages at the rate of double the yearly value of the premises held over so long as held over. Landlord and Tenant Act, 1730, s. 1, and p. 784, iw*/. Holding over If any tenant hold over after his own notice to quit, he becomes alter his own bound to pay double rent so long as he holds over, recoverable in the Notice to same manner as the single rent. Quit. ^ Distress for Rent Act, 1737, s. 18, p. 787, 2^ost. Rightful holding over by Tenant for Years. Wrongful holding over by Tenant for Years. Partial Occupation by Custom of the Country. Compensation for improve- ments by Custom of the Country. Where an existing custom for the tenant of a farm to retain pos- session after the end of his tenancy is proved as a fiict, such tenant has a right to retain possession accordingly, unless he hold under a contract of tenancy inconsistent with the custom. Where an existing custom for the outgoing tenant of a farm to be paid compensation for improvements is proved as a fact, such tenant has a right to compensation in accordance with such custom unless Eights of Parties on Determination of Tenancy. Ixix lie hold under a contract of tenancy inconsistent therewith. Valua- tions between an outgoing and incoming tenant are a matter of convenience only, and if there be no incoming tenant, the landlord is liable to the outgoing tenant under the custom. See Faviell v. Gaskoin, 7 Ex, 273, aud p. 792, post. The Agricultural Holdings Act, 1883, applies to all holdings, Application of however small, either wholly agricultural or wholly pastoral, or H^^ii^i^^"'^'.*- partly agricultural and partly pastoral, or whoU}-^ or partly cultivated 1883. as market gardens, held under a landlord for a term of years, or for lives, or for lives and years, or from year to j'ear by a tenant holding no employment under such landlord. Agricultural Holdings Act, 1883, ss. 54 and 61, i). 813, 2}0st. In cases where the Agricultural Holdings Act, 1883, applies, the Compensation tenant, on quitting his hokling on the determination of his tenancy, mentTimdei* is entitled to compensation for boning, chalking, clay-burning, claying, Agricultural liming, and marling, and for the application of purchased manure, isss. ° ' and consumi^tion on the holding by cattle, sheep, and pigs, of cake or other feeding stuffs not produced on the holding. He is also entitled to compensation for buildings and other permanent improvements if executed with the w^ritten consent of his landlord, and for drainage if executed after notice to a landlord refusing to execute it himself. Agricultural Holdings Act, 1883, p. 819, 2Mst. The tenant of a farm at rack-rent, in any case where the tenanc}^ Prolongation determines bv the cesser of the estate of a landlord entitled for his ^t Term where ■^ Lancuorel liau life, or for other uncertain interest, may continue to hold the farm uncertain till the end of the then current year of the tenancy. Landlord and Tenant Act, 1851, s. 1, and p. 904, 2}ost. The primary rule is that all things attached b}' the tenant to the Fixtures. demised premises become the property of the landlord, and are not removable by the tenant at any time or under any circumstances ; but the excej)tions to this rule abrogate it in respect to trade fixtures, domestic fixtures and agricultural fixtures in a varj'ing degree. Trade fixtures, e.g., engines for working collieries, and conserva- Trade tories, and domestic fixtures, e.g., ornamental chimney-pieces, but Do^^^estic" not conservatories, may be removed by the tenant during the Fixtures, tenancy, provided that the removal can be effected without doing substantial injury to the freehold. See Lawton v. Lawton, 3 Atk. 13 ; Bucklancl v. Butte rjicld, 2 B. & B. 54. Ixx Leading Propositions. Agricultural Fixtures. Agricultural fixtures erected by the tenant before January 1st, 1884, with the written consent of the landlord, become the propertj^ of the tenant, and removable by the tenant if the tenant shall have given one month's notice in writing of his intention to remove, and the landlord shall not have exercised an option to purchase them. Landlord and Tenant Act, 1851, s. 3. If the Agricultural Holdings Act applies (see Ixix., supra), any engine, machinery, fencing, or building (except a building for which compensation is payable), erected b}^ the tenant on or after the 1st January, 1884 (whether Avith the consent of the landlord or not), becomes the property of the tenant and removable by him before or within a reasonable time after the termination of his tenancy, subject to the tenant having discharged all his obligations to the landlord, doing no avoidable damage, repairing all unavoidable damage, giving notice of intention to remove, and subject also to the landlord's option of purchase. Agricultural Holdings Act, 1883, s. 34, and p. 673, ^tost. Mode of Assignment. Assignment. Every contract for assignment must be in writing, and every assignment must be by deed. Stat. Frauds, s. 4 ; Real Propertj' Act, 1845, s. 3. What Covenants pass to Assignee. The assignee ma}' sue or be sued upon all covenants which con- cern the premises demised, e.g., on a covenant to repair, whether the assignor ma}' have covenanted for his assigns or not. See Spencers case, 1 Sm. L. C, and p. 172, j^^st. Notice to Tenant. Assignment of Reversion. Before suing for rent, the assignee of the reversion must give notice to the tenant of the assignment to him, but he may avail himself of a condition for re-entry on breach of covenants other than the covenant to pay rent without any such notice. 4 Ann. c. 16, s. 10 ; Scaltoclc v. Barston, 1 C. P. Div. 106, and p. 265, post. Assignment of Part of Reversion, and of Reversion of Part. Both the assignee of part of the reversion in the premises and the assignee of the reversion of part of the premises may sue and be sued on the covenants in respect of the part assigned or apportioned to him. See Stevenson v. Lamiard, 2 East, 375 ; 6 R. R. 511 ; Law of Property Amend- ment Act, 1859 ; Conveyancing Act, 1881, ss. 10 — 12. Assignment, Bankkuptcy, Death. Ixxi Assignment of Term. Every tenant, except a tenant b}^ suflferance, may assign or sub-let, Right to unless expressly restrained by the contract of tenancy from doing so. ^^^^^* See Church v. Broicn, 15 Ves. 258 ; 10 R. R. 74. A sub-lease for the whole term, or for a jDeriod beyond it, is an Sub-lease. assignment, and puts the sub-tenant in the place of the tenant. See Beardman v. Wilson, L. R., 4 C. P. 57, and p. 276, 2}0st. A lessee assigning remains liable on his covenants, but an assignee Liability of may assign over to a pauper. By such assignment the assignee frees _^ssi^uee himself from all liability to the lessor, but his liability to the assignor continues. See Thurshj v. Plant, 1 Wms. Saund. 241 ; Tay!(rr v. Shum, 1 B. & P. 21 ; 4 R. R. 759, and 273, post. Upon the bankruptcy of the tenant the tenant's estate in the pre- Bankraptcy. mises is assigned by law to his trustee in bankruptc}', who may, within three months after his appointment, disclaim that estate, icith leave of the Bankruptcy Court, if the tenant has sub-let or assigned, or the property leased is let for, and is worth, 20L a year or more, or the tenant's estate is not being summarily administered, or if the landlord having notice of the trustee's intention to disclaim, requires the matter to be brought before the Court, and in other cases without any such leave. If any person interested requires the trustee to decide whether he will disclaim or not, and he does not decide within 28 days, the option to disclaim is gone, and the tenant's estate is absoluteh' vested in him with its burdens and benefits. If no disclaimer is executed, the trustee is personally liable on the covenants of the lease, with a right to be indemnitied out of the assets of the bankrupt's estate. The disclaimer determines the rights and liabilities of the tenant, and of his estate in the lease, as from the date of the disclaimer, and discharges the trustee from personal liability as from the date of his appointment, but does not affect the rights or liabilities of any other person. Bankruptcy Acts, 1883 and 1890, s. 55 and s. 13, and p. 291, imt. The covenant not to assign without licence is not broken by an assignment by bankruptcy, but a proviso for re-entry on the tenant's bankruptcy is good. Doe V. Bevan, 3 M. & S. 353 ; 16 R. R. 293 ; Eoe v. Galliers, 2 T. R. 133 ; 1 R. R. 445, and p. 286, post. Ixxii Leading Propositions. Death. Personal Liability of Executor. Notice before Proceeding for Forfeiture. Summary Judgment against Tenant holding over. Mesne Profits. The tenant's estate is personal propert.y, and passes to his per- sonal representatives. In Scotland the tenant's interest passes to his heirs. An executor cannot waive a term, although it he worth nothing ; he must either renounce the executorship in toto or not at all. Euhery v. Stevens, 4 B. & Ad. 244, and p. 304, 2^ost. Personal representatives are personally liable for rent only up to the value of the premises. Personal representatives having satisfied all existing liabilities on a lease, and having set apart a sufficient sum to answer any future liquidated liability, may assign the lease to a purchaser and distribute assets. Thereupon the personal liability of the personal representa- tives is extinguished, but the landlord may follow the assets in the hands of the beneficiaries. Law of Property Amendment Act, 1859, s. 27, p. 310, iiost. In cases to which the above two paragraphs are not applicable, the personal representatives of a tenant are personally liable upon his covenants, if they enter upon the demised premises, but otherwise not. See Trcmccrc v. Morison, 1 B. N. C. 86 ; Eendall v. Andrecc, 61 L. J., Q. B. 630, p. 306, jjost. Recovery of Premises by Landlord. A right of re-entry for breach of covenant or condition (except the covenant against alienation, or in a mining lease to allow inspection of books, and the condition for forfeiture on bankruptc}^ or taking the lessee's interest in execution) is not enforceable unless the landlord has served on the lessee a notice requiring him to remedy the breach complained of, and the lessee has failed to remedy the breach (if remediable), and also to satisfy the landlord by some pecuniary compensation. Conveyancing Act, 1881, s. 14, p. 349, ^wst. If the tenant's term has expired or been duly determined by a notice to quit, the landlord may, in an action for the recovery of the premises, obtain final judgment for such recovery from a judge in chambers on affidavit by himself or an}^ other person who can swear positively to the facts, verifying the cause of action and swearing that there is no defence thereto. R. S. C, 1883, Order XIV., p. 844, 2Mst. The landlord recovers by the verdict of the jury mesne profits from the date of the determination of the tenant's interest down to the date of the verdict. C. L. P. Act, s. 214, p. 842, post. Eecoveey of Peemises by Landlord. Ixxiii If neither the vahie nor the rent of the premises exceed SOL a j'ear, Action in and the tenant refuse to deliver up possession at the end of the JS^' ^"^"^ tenancy-, the landlord may sue the tenant or person holding through Premises him in the Count}' Court of the district in which the premises lie ; and the judge of such Count}' Court may, on proof of the land- lord's title and other matters, order possession to be given up to the landlord. County Courts Act, 18S8, s. 138, p. 859, 2^ost. If neither the value nor the rent of the premises exceed 50/. a year, Action in and the rent be in arrear for one half-year, and the landlord be ^here^Rent'^* entitled to re-enter for non-payment of rent, the landlord of any in Anear. premises may, without any formal demand for re-entry, sue the tenant in the County Court of the district where the premises lie. Thereupon, unless the tenant in 6 days pay the rent, on proof of no sufficient distress being found on the premises and other matters, the judge of such County Court Avill order possession to be given up to the landlord in not less than 4 weeks, unless the rent and costs be sooner paid. County Courts Act, 1888, s. 139, p. 866, ^^os/!. If neither the value nor the rent of the premises exceed 50Z. a j'ear. Action in the landlord may, upon any cause of forfeiture whatsoever, eject the I'u^ordmarT^*^ tenant by action brought in the County Court of the district where Cases. the premises lie. But if the causes of action be either non-payment of rent or holding over, the landlord must follow the special procedure provided for such causes of action. County Courts Act, 1888, s. 59, p. 871, post. If the tenant occupy at will or for a term of not more than 7 years. Recovery or at a rent of not more than 20/. a year, and refuse to quit at the end justices of of the tenancy, the landlord may summon the tenant before two justices Premises held of the peace, who, upon proof of the landlord's claim and other matters may issue a warrant to the constables of the district commanding them to give possession within a period not less than 21 nor more than 30 days from the date of the warrant. But the execution of the warrant may be sta3'ed if the tenant will become bound with sureties to sue the landlord for tresj)ass. Small Tenements Eecovery Act, 1838, p. 877, 2'>ost. If a tenant at rack-rent or at a rent of three-fourths of the yearly Recovery value of the demised premises, be in arrear for one half-year's rent, justices of and desert the demised premises, and leave no sufficient distress deserted , . . ... Premises, thereon, two or more justices ol the peace may view the premises at Ixxiv Leading Propositions. the request of the landlord, and affix thereon a notice stating what day, at the distance of 14 days at least, they will return to take a second view. If upon such second view the tenant do not pay the rent, or if there be no sufficient distress upon the premises, the justices may jiut the landlord into possession, and the contract of tenancy becomes void. Distress for Rent Act, 1737, s. 16 ; Deserted Tenements Act, 1817, and p. 883, post. Letting infected House. Larceny by Tenant. Criminal Law. If a person let any house or room in which any person has been suffering from an infectious disorder, without having 'such house or room disinfected, he is liable to a penalty of 101., and if he falsely answer any question of an intending tenant as to an infected person being, or having been within 6 months, on the premises, he is liable to a penalty of 20Z., or a month's imprisonment with hard labour. Public Health Act, 1875, ss. 128, 129, and p. 888, post. Any tenant stealing any fixture is guilt}' of felony, and is liable to two years' imprisonment, with whipping, if a male ; and, if the value of the fixture exceed 5Z., to penal servitude for 7 years. Larceny Act, 1861, s. 74, and )). 890, post. Demolition \>y Tenant. Any tenant unlawfully demolishing any building demised to him or severing any fixture from the freehold, is guilty of a misdemeanour, and liable to fine or imprisonment, or both, at the discretion of the Court. Malicious Damage Act, 1861, s. 13, and p. 890, piost. ( Ixxv ) ADDENDA. At page 52, insert: — The important question, in whom does the reversion of an Ii^ whom does intestate landlord, dying after the commencement of the Land intestate land- Transfer Act, 1897, i.e., dying at any time on or after the 1st lor'i "'^^V . ' ^ . * . . during the January, 1898, vest during the period (which is seldom short), period between his death and the grant of letters of administration to some and^c^rant'^of person so as to become his personal representative, is a very difficult letters of ad- one. An executor derives his title from the will of the deceased and can act immediately on his death and before i^robate ; but an administrator derives his title from the letters of administration, which may relate back, but only to an act for the benefit of the estate {a). Section 1 (1) of the Act jirovides that — Where real estate is vested in any person without a right in any other person to take by survivorship, it shall, on his death, notwithstanding any testamentary disposition, devolve to and become vested in his personal representatives or representative from time to time as if it were a chattel real vesting in them or him. And section 2 (2) provides that — All enactments and rnles of law relating to the effect of probate or letters of administration as respects chattels real, and as respects the dealing with chattels i-eal before probate or administration, and as respects the payment of costs of administration and other matters in relation to the administration of personal estate, and the powers, rights, duties and liabilities of personal representatives in respect of personal estate, shall apply to real estate so far as the same are applicable, as if that real estate Avere a chattel real vesting in them or him, save that it shall not be lawful for some or one only of several joint personal representatives, without the authority of the Court, to sell or transfer real estate. And section 24 (2) provides that — In this Act the expression " personal representative " means an executor or administrator. The concluding words of s. 1 (1) so closely resemble {h) words in s. 30 of the Conveyancing Act, 1881, wdiereby trust and mort- gage estates vest in personal representatives, that any decision («) Siee Morgcm y. Tliomas, 8 Ex. 30'2. has "in like manner"' after from "time {b) From "shall" to "him " the words to time." are identical except that the Act of 1881 Ixxvi Addenda. on the earlier enactment would be an authority as to the construction of the latter; but Pearson, J., in granting a vesting order under the earlier Act, raised the difficulty without solving it (b) ; and in two subsequent cases vesting orders have been made (c) without the point being cleared up. To whom then, during the period between death and adminis- tration granted, must rent be paid ? Who can give a legal discharge for it ? Who can distrain or sue for it ? Who can grant a lease, or determine a tenancy, by notice to quit or otherwise ? To whom is to be given the notice of claim of compensation under s. 7 of the Agricultural Holdings Act, 1883 ? On the whole, it is submitted that the heir-at-law stands in the shoes of the deceased landlord for all these purposes until the administrator has acquired a title, and that the position of a tenant in respect to the heir-at-law and administrator successivel}' would be similar to that of a tenant before the Act to a devisee and the devisee of a devisee successively (d). (b) In PllUiuJs Trusts, In re, 26 Ch. D. 432 ; 53 L. J., Ch. 1052 ; 32 AV. R. 853. {c) In Jlackstraw's Trusts, In re, 52 L. t. 612 ; 33 W. R. 559, per Kay, J. ; and in Jf'iUlains's Trusts, In re, 36 Ch. D. 231 ; 56 L. J., Ch. 1088 ; 56 L. T. 884 ; 36 W. R. 100. (rf) See further as to the meaning of the Act, Robbins's Devolution of Real Estate, p. 18, and Tj'ssen's Real Representative Law, p. 18. The 19th section of the Court of Probate Act, 1858, 21 & 22 Vict. c. 95, vests ]iersonal estate in the Judge of the Court of Probate between death and adminis- tration, and it may possibly be that this section is incorporated in the Land Transfer Act by the general words of s. 2 (2). If this be so, it ndght perhaps follow (see Tyssen, at p. 20), that the land vests in all the Judges of the High Court as joint tenants. Determina- tion of Lease by Notice — By whom Notice to be given — Equitable ■Charge, At page 386, insert: — Where a lease for 21 years contains the usual proviso for its determination by the lessee or his assigns by six months' notice at the expiration of the first seven or fourteen years of the term, such notice, in order to be valid, must be given by or on behalf of the person in whom the term is vested, and therefore the first assignee of a lease, who has purchased an equitable charge created by a second assignee by the deposit of the lease with the assignments as a security for a loan, is not entitled to give such notice, as he is not the person in whom the term is vested (e). (c) Seaicard v. Drew, 67 L. J., (*. B. 322, per Channell, J. Addenda, Ixxvii At page 714, insert: — Bryant v. Hancock tC- Co. (a) is a very important case upon the Covenant construction of public-house covenants. conduct' ^^ In that case a lease for 21 years of an hotel, of which the defen- Hotel. dants were assignees, contained a covenant that the lessee, his ^V^'"'*-^'- ., . Hancock. executors, administrators, and assigns would conduct the business of the hotel "in a proper and orderly manner so as to afford no ground or pretence for discontinuing the licences thereof ; and would not wilfully do or suffer any act or thing w^hich might be a breach of the rules and regulations established by law for the conducting of licensed public-houses or be a reasonable ground for the withdraw- ing or withholding of all or any of the licences for the sale of beer, ale, wine, and spirituous liquors therein " ; and would from time to time apply for and do or cause to be done whatsoever should be requisite for obtaining the renewal of such licences, and would at the end of the term deliver up the premises with the licences. Some cases of drunken- ness had occurred on the premises while they were in the occupation of a monthly tenant of the defendants, and the licensing justices had refused to renew the licence for the house on the application of such monthly tenant. The applicant appealed to quarter sessions, and, on their refusal to hear the appeal on the ground that the notices were not in proper order, obtained a mandamus for them to hear and determine it. After they had heard it the applicant again apjjlied for a mandamus, and, on failing to obtain it in the Queen's Bench Division, appealed unsuccessfully to the Court of Appeal and the House of Lords ih). The i)laintift" having recovered 5,800/. in an action on the cov^enant by the judgment of Lawrance, J., the Court of Appeal reversed the judgment on the ground that no breach had been committed. "It is clear" observed the Court in a con- sidered judgment, " that the defendants took all possible steps to obtain a renewal of the licence, which the justices refused to renew at the next general annual licensing meeting, their ground for refusal being that Mrs. Evans had upon one occasion permitted drunken- ness upon the premises upon the occasion above-mentioned. It w^as thus that the licences of the Princess Eoyal Hotel were lost. In these circumstances the defendants are sued as being assignees for the residue of the term, and it is upon the true construction of the covenant therein contained that this case depends. Whether the covenant sued on is one covenant or different covenants is not material, for it is clear that there are three separate and distinct (a) Bryant v. Hancocl', 14 Times Law 63 L. J., M. C. 81 ; 70 L. T. io; 50 J. P. Reports, 320 (decided March 2otli, 1898) ; '260 ; from which it appears that on hear- Law Times Is'ewspa per for April 2ud, 1898, iug the appeal to quarter sessions a Court p. 503. of four justices was evenly divided. {b) See Evans, Ex imrtc, [1894] A. C. 16 ; Ixxviii Addenda. parts of the covenant, under each of which a different obligation is undertaken by the covenantors. The first part commences, ' And further that he,' and ends with the words 'for discontinuing the licences thereof.' In our opinion this part of the covenant relates to the forfeiting of the licence when existing as distinguished from the renewal thereof, which is dealt with in the second part of the covenant. It would be wholly unreasonable to hold that both the first and second parts of the covenant referred to the same thing, so that both an absolute and qualified covenant existed as to the same thing. This first part in our judgment is an absolute covenant by the covenantor, his executors, administrators, and assigns against the forfeiture of an existing licence of the Princess Royal Hotel, and does not embrace the question of renewal of such licence. The second part of the covenant is a limited covenant, and is confined to the covenantor, his executors, administrators, and assigns wilfully doing or suifering anything which should be a reasonable ground for withdrawing or withholding the licences — i.e., which should afford a reasonable ground for the justices refusing to renew. This is clearly not an absolute covenant. And the third part of the covenant is a covenant b}"^ the covenantor, his executors, administrators, and assigns to apply for and do all that shall be reasonably requisite for the renewal of the licence, and that when renewed he will deliver up the same at the determination of the term. This is not an absolute covenant. Now, as regards the first part of the covenant, no liability attaches to the defendants, for the simple reason that the then existing licences have not been forfeited. As regards the second part, the covenantor or his assigns have not wilfull}' done or suffered anything which should be a reasonable ground for the justices, refusing to renew the licence. If the covenantor or his assigns are to be liable for a tenant of an assignee causing the licence not to be renewed, it seems to us there should either be a clear and absolute covenant that they would be so liable, or a covenant that such tenant would do nothing to jeopardize a renewal. We give no opinion upon whether Mrs. Evans's act was such as to afford reasonable ground for the justices refusing to renew. As regards the third part of the covenant the facts show that the defendants have done all in their jjower to obtain a renewal, but without avail." FOE NOTES. FOR NOTES. THE LAW LANDLORD AND TENANT. CHAPTEE I. BY WHOM TERMS :MAY BE GRANTED. Sect. page 1. Generally 1 2. Tenant in Fee 2 3. Tenant in Tail 3 4. Tenant for own Life 4 (a) At Common Law 4 (b) Under Special Powers 5 (c) UnderSettled Estates Act, 1877 5 (d) Under Settled Land Act, 1882 6 (e) Binding of Keraainderman ... 10 5. Tenant for the Life of another ... 11 6. Tenant by the Curtesy, &c 12 7. Joint Tenants and Tenants in Common 12 8. Coparceners 14 9. Tenant for Years 15 1 0. Tenant for less than Years 15 11. The Crown 16 12. Corporations generally 17 13. Borough, County, and Parish Councils ... 19 14. Ecclesiastical Corporations 21 (a) Enabling and Disabling Acts. 21 (b) Acts of Queen Victoria 26 15. Universitie-; and Colleges 32 16. Parish Officers and Allotment Trustees 33 Sect. page 17. Trustees of Settled Estates 34 18. Trustees of Charities 37 19. Sanitary Authorities in Allot- ments and County Councils in Small Holdings 40 20. Infants 41 21. Guardians... 42 22. Trustees for Infants 44 23. Married Women 45 24. Lunatics and Committees 48 25. Persons nnder Duress, or In- toxicated 50 26. Convicts 50 27. Trustees of Bankrupts 52 28. Executors and Administrators ... 52 29. Mortgagor and Mortgagee 54 (a) Generally 54 (b) Under Conveyancing Act 60 30. Tenants by Elegit, &c 62 31. Receivers 63 32. Lords of Manors and Copy- holders 63 33. Agents and Bailiffs 67 (a) Agents 67 (b) Bailiff's 72. Sect. 1. — Generally. A.LL persons who are not under any legal disability may grant leases for such terms as are not inconsistent with the nature and quantity of the estates which they have : but if a lease be made for a longer term than the estate of the lessor will warrant, it will generally operate as a valid demise during so much of the term as he has power to grant. Thus, if a tenant for life demise by deed for a long L.T. 1 /?5 Chap. I. — By whom Terms granted. Ch.I. Sect. 1. Whomay lease generally. Person having mere Right of Entry may demise. Lessors Title. Lease by Estoppel. term (say ninety-nine years), it will operate as a valid lease during his life (a). At one time it was necessary that the party granting the lease, who is called the lessor, should he in possession of the lands in- tended to be leased or in receipt of the rents and profits thereof; for if he had a mere right of entry, he could not grant it to another {h). But by the Eeal Property Act, 1845 (c), 8 & 9 Vict, c. 106, s. 6, not only contingent, executory and future interests, and possibilities coupled with an interest, but also "a right of entry whether immediate or future, and whether vested or contingent, into or upon any tenements or hereditaments in England of any tenure, may be disposed of by deed." This enactment does not relate to a right to re-possess or re-enter for a condition broken, but onl}' to an original right where there has been a disseisin, or where the party has a right to recover lands, and his right of entry and nothing but that remains {d). A lease is, both in contemplation of law and in fact, a conveyance of the demised premises for the term therein mentioned, subject to the rent, covenants, and conditions. It usually contains a ver}^ qualified and restricted covenant for quiet enjo^'ment, such as any person may safely enter into who never had title to the demised premises (e). By the Vendor and Purchaser Act, 1874 (37 & 38 Vict. c. 78), s. 2, it is enacted that " under a contract to grant or assign a term of j'ears, whether derived or to be derived out of a freehold or leasehold estate, the intended lessee or assign shall not be entitled to call for the title to the frceliold ;'' and by the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict, c, 41), ss. 3 and 13, there are similar enactments as to the title to a lease- hold reversion ; but all these enactments are " subject to any stijDU- lation to tlie contrary in the contract." As to lease by estoppel, see post, Ch. V. sect. 22. I Sect. 2. — Bij Tenants in Fee. Tenants in fee may make leases without limit or restraint, for any number of lives or j^ears, and upon such terms and conditions as they (a) Bragg v. JFiscvian, Brownlow k G. 22. (b) 32 Hen. 8, c. 9, ss. 2, 4 ; Doc d. Williams Y. Evans, 1 C. B. 717. (c) This "short title" of 8 & 9 Vict, c. 106 is derived from the Short Titles Act, 1896, 59 & 60 Vict. c. 14, which gave numerous short titles to- acts not having them before, and repealed but re-enacted the Short Titles Act, 1892, 55 & 56 Vict. c. 10, which had also conferred numerous short titles. Acts passed in or after 1845 have short titles given to them by themselves in gradually increasing number, and now every act has a short title so given. hi the following pages every act having a short title is cited by that title and by the regnal year and chapter as well. {d) Hunt v. Bisho2), 8 Exch. 675, 680 ; 22 L. J., Ex. 337 ; Hunt v. Remnant, 9 Exch. 635; 23 L. J., Ex. 135; Bennett V. Herring, 3 C. B., N. S. 370. (f) See post, Chap. XVIL sect. 8 (b). Sect. 3. — ^Lease by Tenants in Tail. ma}' think fit (/). A lease of lands of which the lessor was seised in Ch. I. Sect. 2. fee, and of other lands of which he was seised for life (with power of leasing), at one entire rent, but which was not well executed according to the power, was held to be good after the death of the lessor for the lands held by him in fee, though not for the other lands (g). Lease hij Tenants in Fee. Sect. 3. — Bi/ Tenants in Tail. By the common law a tenant in tail could make no lease which would bind his issue in tail, or remaindermen, or the reversioner. By the Fines and Eecoveries Act, 1833 (3 & 4 Will. 4, c. 74), s. 15, "every actual tenant in tail," [i.e., every tenant of an estate tail Avhich shall not have been barred], " whether in possession, remainder, contingenc}', or otherwise, shall h-AxefiiU j^oicer to dispose of, for an estate in fee simple absolute, or for any less estate, the lands entailed," as against the issue in tail, and all persons whose estates are to take effect after the determination or in defeasance of the estate tail. But by sect. *21, this power is not given to expectant heirs or issue in tail. A lease for any number of years, or for a life or lives, is a " disposi- tion " j)''o tanto within the meaning of the above act. But b}' sect. 34, if there be a protector of the settlement, his consent is necessary to make the lease valid, not as against the issue in tail, but as against persons whose estates are to take effect after the determination or in defeasance of the estate tail ; and if the tenant in tail making the disposition is a married woman, the concurrence of her husband is necessary to give effect to the same ; and any deed which may be executed by her for effecting the disposition must be acknowledged by her before a judge, or before a perpetual or special commissioner (Ji), or before a county court judge (i). By sect. 41, no assurance by which a disposition of lands is effected under the act by a tenant in tail thereof {except a lease for any term not exceeding twenty-one years at a rack rent or not less than one-sixth of a rack rent) has any operation under the act unless it be enrolled in the Court of Chancery (A) within six months after execution. It is to be observed that a lease for less than twenty-one years must be enrolled pursuant to this section, if the rent reserved does not amount to at least five-sixth parts of a rack rent, or if the term is not to commence for more than one year from the date thereof. So if the (/) Com. Dig. Estates by Grant (G. 2). {cj) Doc d. Vauglian v. Meylcr, 2 M. &; S. 276 ; 15 R. E. 244. Qi) Sect. 40 ; sect. 79, as amended by sect. 7 of the Conveyancing Act, 1882, 45 & 46 Vict, c' 30, (t) County Conns Act, 1888, s. 184, re- enacting s. 73 of the act of 1856. [k) Now the Chancery Division of the High Court ; Judicature Act, s. 34. 1—2 At Common Law. Under the Fines and Eecoveries Act, 1833. A Lease is a ' ' Disposi- tion " j;?'o tanto. Inrohaent when neces- sary. Chap. I. — By whom Terms granted. Ch. I. Sect. 3. Lease by Tenants in Tail. Settled Estates Acts. Settled Laud Act. By Tenants in Tail after Possibility of Issue extinct. lease is for a longer term than twenty-one years, and in all other cases not within the above exception. A lease for years by a tenant in tail, not made in pursuance of the Fines and Eecoveries Act, was not absolutely determined by his death, but the issue in tail was at liberty either to affirm or avoid it, as he might think fit {T). Acceptance by the issue in tail of the rent {m), or bringing an action for the recover}^ thereof, or an action of waste, were considered such acts as amounted to a confirmation of the lease, because they plainly manifested an intent to continue the lessee in possession upon the terms of his lease. A lease at common law by the tenant in tail differs from a rent granted by such tenant ; for the last is void by the death of the grantor : whereas the former is only voidable by the issue in tail, whose acceptance of rent amounts to a confirmation ('«). The power of tenants in tail to grant leases, &c., pursuant to the Fines and Recoveries Act was unaffected by the Settled Estates Act, 1856 (19 & 20 Vict. c. 120), and 1877 (40 & 41 Vict. c. 18), but those acts successively allowed the Court of Chancery and the Chancery Division of the High Court to authorize leases by a tenant in tail. And the Settled Land Act, 1882 (45 & 46 Vict. c. 38, s. 38), confers upon a tenant in tail the same powers under that act as that act confers upon a tenant for life, so that leases made after the act of 1882 came into operation [i.e., after the 31st December, 1882] are not subject to the operation of the Fines and Recoveries Act, but may be made in all ways as a lease by a tenant for life. The like is the case with a tenant in tail after possibility of issue extinct, that is, where one is tenant in special tail, and the person from whose body the issue was to spring dies without issue, or, having issue, that issue becomes extinct {(>). See therefore the next section. At Common Law. Sect. 4. — Lease hy Tenant for Life. (a) At Common Laic. At common law a tenant for his own life (not having any special power to grant leases) can make no leases to continue longer than his own life {y). This inconvenience to the tenant was partially modified by the right to " emblements " {q), for which was substituted by the Landlord and Tenant Act, 1851, 14 & 15 Vict. c. 25, s. 1 (post, [1) Bac. Abr. tit. Leases (D.). [in) Doc d. Soutliouse v. Jenkins, 5 Bin^. 469 ; Doe d. Phillips v. Rollings, 4 C. B. 188. (?i) Cruise's Dig. tit. IL c. 2, s. 8 ; Bro. Aln-. tit. Grant, 145 ; 2 Ld. Raym. 779 ; Andreio v. Pearcc, 1 New R. 158 ; 8 R. R. 776. (o) 2 Blac. Com. 124. (p) Bac. Abr. tit. Leases (I.) ; Adams V. Gihney, 6 Biiig. 656. (2) See post, Chap. XX. sect. 3. Sect. 4. — Lease pa* Tenant for Life. 5 Appendix A. sect. 4), the right of the lessee of " a farm or lands " to Ch.I. Sect. 4. hold until the expiration of the current year of the tenancy, at which ^'^^^^ *y expii'ation he becomes hound to quit without any notice to quit. ^"ztfe. (b) Under Special Poivers. The settlements, liowever, Avhether b}^ deed or will, under which a Special tenant for life holds his estate, frequently contain " special powers of P^^^.^^^^^f leasing," enabling the tenant for life to make leases binding after his death, for a limited period, upon the parties in remainder. Where these powers did not exist, or were found to be insufficient, they were in many cases conferred by private Act of Parliament. In 1856 these private acts w^ere in a great measure rendered unnecessar}- by s. 32 of the general " Settled Estates Act, 1856," 19 .t 20 Vict. c. 120, which empowered tenants for life to make leases for 21 years. (c) Under Settled Estates Act, 1877. The Act of 1856 was repealed but in great part re-enacted by the Settled Estates Act, 1877, 40 & 41 Vict. c. 18, s. 46 of which act replaced s. 32 of the act of 1856, in terms which, cdthoiujh they were entirely superseded (though not expressly repealed), as from the commencement of the Settled Land Act, 1882, by the more comprehensive enactments of that act presently to be referred to, it is still necessary to set out here, inasmuch as leases actually granted by tenants for life, &c., before the commencement of the act of 1882, would be set aside as invalid (r), unless made in accordance with such terms. Sect. 46 of the act of 1877 allowed an}" person entitled to the Settled rents and profits of any settled estates for any life, or lives, or for any ^^t^te^Act, greater estate, either in his own right or in right of his wife, unless Tenants for the settlement should contain an express declaration to the contrary, cj-^n't Leases^ and also any person entitled to the rents and profits of any unsettled f°i' ^l Years. estates as tenant b}^ the curtesy, or in dower, or in right of a wife seised in fee, without any application to the court, to demise the same or an}' part thereof, except the principal mansion-house and other lands usually occupied therewith, from time to time for any term not exceeding 21 years. The section further provided that every such demise should be made by deed ; that the best rent that could Demise to be reasonably be obtained should be thereby reserved ; that the demise Rent '^without should not be made without impeachment of waste (r), and should Fine, contain a covenant for payment of rent and such other usual and ^^^^^ste. proper covenants as the lessor should think fit ; and also a condition of re-entry on non-payment of the rent for a period of 28 days, or (;•) See Davics v. Davies, 36 AV. R. 3t>9, and p. 6, post. Chap. I. — By whom Terms granted. Ch. I. Sect. 4, Lease hy Tenant for life. Sect. 47. Validity of Demise against Ke- maiiuleiraen, &c. Quashing of Lease by Keraainder- man. Sect. 48. some less period to be specified ; and that a counterpart of every deed of lease should be executed by the lessee (s). This section did not apply to a case where trustees had the management of an estate, of which they paid the net annual rents to the tenant for life (i). In such a case the tenant for life was not even entitled to petition under the act («) . By sect. 47, every demise authorized by the last preceding section was made valid against the person granting the same, and all other persons entitled to estates subsequent to the estate of such person under or by virtue of the same settlement, if the estates be settled (a-)> and in the case of unsettled estates against the wife of any husband granting such demise of estates to which he was entitled in right of such wife, and against all persons claiming tlu'ough or under the wife or husband (as the case might be) of the person granting the same. Where, however, the lease was not as authorized by sect. 46, the remainderman could get it set aside upon coming into his estate, as appears from the case in which a 21 years' lease b}- a tenant for the curtesy containing a covenant to repair, " fair wear and tear and damage by tempest excepted," was set aside as having been made without impeachment of waste (,?/). By sect. 48, the execution of a lease by the lessor " shall be deemed sufficient evidence " that a counterpart of such lease has been duly executed by the lessee as required by the act. By sect. 57, the provisions in the act respecting demises to be made without application to the court, extended only to settlements made after the 1st of November, 1856 {z). Settled Land Act, 1882.— Act of 1882 is retrospective and com- pnlaory. (d) Lease hy Tenant for Life under Settled Land Act, 1882. The Settled Land Act, 1882 (45 & 46 Vict. c. 38), not only goes far beyond the Settled Estates Act in the powers which it gives to a tenant for life, but is retrospective, — that is, it takes effect whether the settlement was made before or after the commencement of the act (sect. 2), and is compulsory, — that is, it takes effect whether the settlor expressed a wish that it should take effect or not (sect. 51). (s) The only material alteration was the omission of the dii-ection that the condition of re-entry should apply to non-observance of covenants, as well as to non-payment of rent. And as to the act generally, see s. 17, post. {t) Taylor v. Taylor, L. R., 20 Eq. 297 ; 44 L. J., Ch. 727 ; 33 L. T. 89 ; 23 \\. R. 947, per Jessel, M.R. («) Id., 1 Ch. D. 426. (,!■) As to concurrence in an application to the court on behalf of lunatics, &c., see sect. 49. {y) Davics v. Davies, 38 Ch. D. 499 ; 58 L. T. 514 ; 86 W. R. 399, per Kekewich, J. Observe that sect. 6 of the act of 1882, p. 7, post, expressly authorizes a lease involving waste. {z) This being the date of the original Settled Estates Act, 1856 (19 & 20 Vict, c. 120), the 44th section of which contained a similar saving Sect. 4. — Lease by Tenant for Life. 7 Sect. 6 of the Settled Land Act, 1882, is as follows : — Ch. I, Sect. 4. A tenant for life may lease the settled land, or any part thereof, or ^^'^^^ */ any easement, right, or privilege of any kind over or in relation to the '^^Lifc same, for any pnrpose whatever, whether involving waste or not, for any 7, — TT"; — r~ , , J . " 'J Settled Land term not exceedmg, ^^^^ 1882^ ^ g (i.) In case of a building lease, ninety-nine years : Duration, (ii.) In case of a mining lease, sixty years : (iii.) In case of any other lease, twenty-one years. By sect. 7, subs. 1, as amended by s. 7 of the Settled Land Act, Mode ot Lease, 1890, 53 & 54 Vict. c. 69, every lease must be by deed and be made '^^^^l^H ^^ to take effect in possession not later than 12 months after its date Writing, except in cases where the term does not extend beyond 3 years from the date, in which cases it may be made by an}^ writing under hand only containing an agreement instead of a covenant by the lessee for the payment of rent. An oral lease of settled land for however short a term is absolutel}^ Effect of void against the remainderman unless and until it is confirmed by ^^'^^ Lease. him as pointed out hereafter. By sect. 45 of the Act of 1882, a tenant for life when intending Notice to to make a lease must give notice to each of the trustees of the settle- ^'^'^*^^^- ment under which he is tenant for life, but "a person dealing in good faith with the tenant for life is not concerned to inquire respecting the giving of any such notice." The exact words of sect. 7 of the Act of 1882 are as follows : — Settled Land Act, 1882, s. 7. (1.) Every lease shall be by deed, and be made to take effect in L)ee(j_ possession not later than twelve months after its date (a). (2.) Every lease shall reserve the best rent that can reasonably be Best Rent, obtained, regard being had to any fine taken, and to any money laid out [h), or to be laid out, for the benefit of the settled land, and generally to the circumstances of the case. (3.) Every lease shall contain a covenant by the lessee for j)ayment of Proviso for the rent, and a condition of re-entr}' on the rent not being paid within ^^-entry. a time therein specified not exceeding thirty days. (4.) A counterpart of every lease shall be executed by the lessee and Counterpart. delivered to the tenant for life ; of which execution and delivery the execution of the lease by the tenant for life shall be sufficient evidence. (5.) A statement contained in a lease, or in an indorsement thereon. Evidence, signed by the tenant for life, respecting any matter of fact or of calcu- lation under this act in relation to the lease, shall, in favour of the lessee and those claiming under him, be sufficient evidence of the matter stated. The exact words of sect. 7 of the Act of 1890 are as follows : — Settled Land Act, 1890, s. 7. A lease for a term not exceeding twenty-one years at the best rent that can reasonably be obtained without fine, and whereby the lessee («) The effect of subs. (1) is that an (b) Tliis does not include luonej'- volun- existing lease must he surrendered unless tarily laid out : Chawncrs Estate, In re, it be within one year of expiring : Farmli, note (/), infra. In re, 33 Ch. D. 599. Chap. 1. — By whom Terms granted. Ch.I. Sect. 4. Lease hy Tenant for Life. Act of 1882, ss. 53, 54. Lessee dealing in good faith to be taken to have complied with the Act. Lease to wife. "Best Rent'" in the case of Agricultural Holdings. Working Men's Dwellings. Mansion- House. is not exempted from punishment for waste may be made by a tenant for life — (i.) Without any notice of intention to make the same having been given under section forty-five of the Act of 1882 ; and (ii.) Notwithstanding that there are no trustees of the settlement for the purposes of the Settled Land Acts, 1882 to 1890; and (iii.) By any writing under hand only containing an agreement instead of a covenant by the lessee for payment of rent in cases where the term does not extend beyond three years from the date of the Avi'iting. The tenant for life is, by s. 53 of the Act, trustee for all parties interested under the settlement, and it is also provided b}^ sect. 54 of the Act of 1882 that— On a sale, exchange, partition, lease, mortgage or charge, a purchaser, lessee, mortgagee or other person dealing in good faith with a tenant for life shall, as against all parties entitled under the settlement, be con- clusively taken to have given the best price, consideration, or rent, as the case may require, that could reasonably be obtained by the tenant for life, and to have complied with all the requisitions {sic) of this act. The question of disputed leases by tenants for life was fully considered in Mogridgc v. Clapp (c), in which a building lease by a tenant by the curtesy believing himself to be a freeholder was held good, and in Sutherland v. Sutherland (d), in which a lease of a house by a tenant for life to his wife was set aside, but it was intimated that a lease to a wife was not 2>er se objectionable. In the most recent case, a lease for seven years at 25Z. a jea.v was set aside on the ground that the lessee had paid the tenant for life 20 guineas to grant it (dd). The 43rd section of the Agricultural Holdings Act, 1883 (post, Cli. XXI.), authorizes past voluntary expenditure of a tenant upon improvements to be taken into account in estimating the "best rent ; " and, similarly, settled land may be let for working men's dw^ellings at less than the " best rent," under s. 14 of the Housing of the Working Classes Act, 1890, 53 & 54 Vict. c. 70. By sect. 12 of the Settled Land Act, 1882, the power of leasing under the act extends to the making of a lease either (1) in pursuance of a contract for lease by a predecessor in title, or (2) for giving effect to a covenant of renewal, or (3) a lease for confirming a previous void or voidable lease. By sect. 10 of the Settled Land Act, 1890, however (substituted for s. 15 of the Act of 1882, wdiich it repeals) the " principal mansion-house on any settled land, and the demesnes thereof, and other lands usually occupied therewith " may not be leased without (c) Mogridge v. Clccpj), [1892] 3 Ch. 382 ; 62 L. J., Ch. 946 ; 69 L. T. 186 ; 42 W. R. 61 L. J., Ch. 534 ; 67 L. T. 100 ; 40 W. E. 13 ; 3 R. 650, per Romer, J. 663 ; C. A. affirming Kekewich, J. [dd) Chandler v. Bradley, [1897] 1 Ch. {d) Sutherland {Doicagcr Duchess of) v. 315 ; 66 L. J., Ch. 214 ; 75 L. T 581 • 45 Sutherland {Duke of), [1893] 3 Ch. 169 ; W. R. 296, per Stirling, J. Sect. 4. — Lease by Tenant for Life. 9 the consent of the trustees of the settlement, or an order of the court (e) , Ch. I. Sect. 4. i.e., b}' sects. 2, sub-sect, 9, and 46 of the act of 1882, the Chancery ^ease hj Division of the High Court; but b.y sub-sect. 3 of the same section ^ufe '* where a house is usually occupied as a farm-house, or where the Farm-House site of any house and the pleasure grounds and park and lands, if or Small Site. an}^ usually occupied therewith, do not together exceed 25 acres in extent, the house is not to be deemed a principal mansion-house " within the section. Sj)ecial regulations respecting building and mining leases are Building and provided by sects. 8 — 11, the more important of which are, that in ^^"""S •^ ' _ _ _ ■■ ' Leases. the case of a building lease, the lease is to be granted partly in con- sideration of the lessee having erected or agreeing to erect buildings or having improved or agreemg to improve buildings (/), &c. (sect. 8, sub-sect. 1) ; " that a peppercorn rent, or a nominal or other rent less than the rent ultimatel}' payable, may be made payable for the first live 3'ears, or any less part of the term " (sect. 8, sub-sect. 2), that in the case of a mining lease, the rent may vary according to the quantities of the mineral gotten (sect. 9), and that, in the case of either kind of lease, the court may authorize, in accordance with the proved circumstances of the district, leases " for any term, or in pei-petuity, at fee farm or other rents, secured by condition of re-entry or otherwise, as in the order of the court expressed." The Settled Land Act, 1889, 52 & 53 Vict. c. 36, provides that Building " any building lease and any agreement for granting building leases " op^foVof under the Act of 1882 may contain an option "to be exercised at Purchase. an}' time withm an agreed number of years not exceeding ten, for the lessee to purchase the land leased at a price fixed at the time of the making of the lease or agreement for the lease, such price to be the best which having regard to the rent reserved can reasonably be obtained, and to be either a fixed sum of money, or such a sum of money as shall be equal to a stated number of years' purchase of the highest rent reserved by the lease or agreement." The Settled Land Act, 1890, 53 & 54 Yict. c. 69, s. 8, provides .Mining Lease that "in a mining lease the rent may be made to var}' according to ^^^,^^1^ v.(txii. the i)rice of the minerals or substances gotten, or any of them," which "price" may be "the saleable value, or the price or viilue appearing in any trade or market or other price list, or return from time to time, or ma}' be the marketable value as ascertained in any manner prescribed by the lease (including a reference to arbitration), (c) ^ee Bruce V. Aylesbury {Marquiti of), (/) These expressions do not include [1892] A. C. 356 (order for s«/(; of mansion- past voluntary improvements, so as to house refused) ; Sutherland v. Sutherland, justify the tenant for life in taking less [1893] 3 Ch. 169 (lease granting easement than the "best rent : " Chawner's Settled over park occupied with principal mansion- Estates, In re, [1S92] 2 Ch. D. 192. per house held void). " Chitt}', J. 10 Chap, I. — By ^syhom Terms granted. Ch. I. Sect. 4. Lease bi/ Tenant for Life. Mining Lease in pursuance of Contract by absolute Owner. Leases b_y Tenants for Life under express Powers. Quashing by Remainder- man. or ma}' be an average of any sucli prices or values taken during a specified period." A mining lease in pursuance of a contract by an absolute owner may be made b}^ the tenant for life irrespective of the conditions imposed by sect. 11 of the Act of 1882, as to setting aside part of the rent as capital (r/). A tenant for life, with express power to grant leases for any limited term, or building, repairing, or mining leases, etc., subject to certain restrictions and conditions, may grant any such lease in accordance with the power Qi), if such power be larger than the power he would have under the Settled Land Act ; but if such power be more limited than his power under the act, then the act prevails, and enlarges such power (i). A lease not in conformity with the Settled Estates Act, 1877, was quashed by the court on application by the remainderman (A;), and it has been said to be probable tliat a lease would be void if the considerations of the Act of 1882 should not be observed (/). Davics V Davies. (e) Confirmation of Invalid Lease hy Remainderman. A lease by a tenant for life, except as authorized by the Settled Estates Act, or by the Settled Land Act, or by some express powers Confirmation in the settlement or will from which he derives his title, is absolutely m^ainderman '^oii^ against a remainderman, and cannot be confirmed by such remainderman's acceptance of rent, suffering the tenant to remain in possession {m), or even by a grant of the freehold treating the lease as valid {ii) ; but in a case where the remainderman lay b}^ and suffered an assignee of an invalid lease to la}- out mone}^ in re-building, and might be presumed to have had notice of the fact. Lord Hardwicke directed a new lease, with proper covenants, to be granted to the assignee for the remainder of the term (o) ; and subsequent acceptance of rent, or other acknowledgment of tenanc}', may be evidence of a new demise from year to year by the remainder- man (j:*); the lessee being a mere tenant by sufferance in the {(j) Kemcys Tynte v. Kcmeys TyiUe, [189'2] 2 Ch. 211 ; 61 L. J., Ch. 377 ; 66 L. T. 752 ; 40 W. R. 423, per North, J. (A) See Chap. V. s. 19. {i) Settled Land Act, 1882, ss. 55-57. (/■) Bavirs V. Bavies, 38 Ch. D. 499, and p. 6, ante. (Z) Mogridge v. Glapp, [1892] 3 Ch. at p. 398, per Kay, L.J. Quaere, would not the knowledge, &c., of the lessee be a necessary element of invalidity ? {in) Doc d. t^impson v. Butcher, Doug. 50 ; Jenkins d. Yates v. Cliuixh, Cowp. 482 ; James d. Auhray v. Jenkins, Bull. N. P. 96 ; Boc d. Martin v. Watts, 7 T. E. 83 ; 2 Esp. 501 ; 4 E. R. 387 ; Boc d. Collins v. Wellcr, 4 R. R. 496 ; 7 T. R. 478 ; Jones d. Cooper v. Verney, Willes, 169. (n) See Smith v. Widlakc, 3 C. P. D. 10; 47 L. J., G. P. 282; C. A., 26 W. R. 52, reversing judgment of Cock- burn, C.J. (o) Stiles V. Cooper, 3 Atk. 692 ; com- pare East India Co. v. Vincent, 2 Atk. 83 ; Jackson v. Cater, 5 R. R. 144 ; 5 Ves. 688. {p) Roe d. Jordan v. Ward, 2 R. R. 728 ; 1 H. Blac. 97 ; Boc d. Collins v. Wellcr, 7 T. R. 478 ; 4 R. R. 496 ; Boc d. Pennington v. Tanitre, 12 Q. B. 998 ; Sect. 5. — Lease by Tenant for Life of another. 11 interval (r/). It was also held, prior to the Settled Estates Act, that the lessee was not estopped from showing that the estate had determined by the death of the lessor (r) ; but that if a tenant for life, seised also of the remainder in fee expectant on an intervening estate tail in the premises, made a lease, the demise, though defeated by his death as to his life estate, might ultimately take effect for the residue of the term out of his remainder in fee, by the decease of the tenant in tail without issue, and without his having acquired the fee by a proper mode of assurance (s) ; that if a tenant for life granted a lease for years, and then surrendered or forfeited his estate, the lease would remain good during his life, if the years so long continued (t) ; and that a lease executed by a tenant for life, in which the rever- sioner, who was then under age, was named as one of the lessors, but which was not executed by him, was void on the death of the tenant for life, and an execution of it by the reversioner afterwards was no confirmation so as to bind the lessee, for it was not his covenant (ii) . Prior to the Settled Land Act, it was held in Oakley v. Monck (x), that a remainderman was not bound by a covenant in a life-tenant's lease to pay the lessee, a nurserj'man, at the end of the term for trees planted during the term (there being no evidence that there was a continuing tenancy on the terms of the lease), but it is conceived that the effect of the Settled Land Act would be to bind a remainder- man by such a covenant in the same manner as if the lease had been made by himself ; and further, that the effect of that act is to bind a remainderman by any covenants made by the life-tenant with a lessee acting in good faith, and by any lease omitting an}^ however usual, covenants with a lessee so acting (?/), provided only that sect. 6 of the act has been complied with. Ch. I. Sect. 4. Lease bij Tenant for Life. Covenant to pay for im- provements. Oakley v. Monck. Covenants of Tenant for Life generally. Sect. 5. — Lease by Tenant for Life of another. AVhere a person holds for the term of another's life, he is called tenant pur autre vie ; leases made by him, of course, determine on the death of the cestui que vie, or persons during whose life he C'or/iLsh V. Stuhhs, L. 1!., 5 C. P. 334 ; and see Ch. VI. sect. 1, post. {q) Hoc d. Jordan v. Ward, 1 H. Blae. 96 ; 2 Pi. K 728. (r) Ncavc v. Moss, 1 Bing. 360 ; IVcld V. Baxter, 11 Exch. 816 ; 1 H. & N. 568. (s) Taylor v. Stiltbcrt, 2 Yes. jun. 437 ; 2 K. R. 278 ; 3 & 4 AVill. 4, c' 47, s, 40. (t) StiUons case, 12 j\[odd. 5r.7, f)o8. [u) Ludford v. Barber, 1 T. R. 86 ; 1 R. R. 1.56. {X) Oakley v. Monck, L. R., 1 E.x. 159 ; 35 L. J., Ex. 87 ; Ex. Ch. (?/) See ss. 20, 53, 54, of the act. As to binding of remainderman by contracts for leases, see sect. 31 of tlie act ; and as to powers to agree for improven.ents under Agricultural Holdings Act, see sect. 42 of that act, post, Appendix A. 12 Chap, I. — By whom Terms granted. Ch. I. Sect. 5. holds (^), or in the case of a farm, at the end of the then current Lease by yg^j^. ^f ^j^g tenancy (a), but not on his own death {h) ; and a lease by life of him may be made to commence after his death (c). The cases and ^'^"^ ^''' statutes affecting the " lease for lives " are considered hereafter (d). Tenant by the curtesy. Tenant in dower. Sect. 6. — Bi/ Tenants hy the Curtesy, Tenants in Dower or Jointure, At common law a widowed husband has an estate for life in the lands of which a wife, by whom he had issue capable of inheriting her estate, was seised during the marriage {e), and a widow has an estate for life in the third part in value of her husband's lands (/), an estate however which the husband may bar at his pleasure, and usually does bar, by the operation of the Dower Act, 3 & 4 Will. 4, c. 105. Tenants by the curtesy or in dower may grant leases pursuant to the Settled Estates Act, in like manner as tenants for life(/7). Leases granted b}^ any such tenants, not made in pursuance of the above act, become absolutely void at their death (li), or, if the hold- ing be agricultural, at the end of the then current year of the tenancy (r). If the lessee then holds over he becomes tenant on sufierance ; but a new tenancy at will, or from year to year, may be created with the express or implied assent of the reversioner, or by his acceptance of subsequent rent. That, however, will not confirm the original lease for the term therein expressed to be granted (A:), but will only create a new tenanc}^ If a tenant in dower lease for years, and marry, her second husband's executors are entitled to the arrears of rent due at his death {I). Sect. 7. — By Joint Tenants and Tenants in Common. Co-owners. Co-owners are either joint tenants, or tenants in common, and where two or more persons are seised or possessed as such co- owners, each of them may make leases of his or her respective share; or they may all join in one lease, which in the case of joint tenants, will operate as a joint lease of the whole, but in the case of tenants in common, as a lease by each of his respective share, and (;;) Slakev. Foster, 8 T. R. 487 ; 5 R. R. 419 ; Fenner v. Duplock, 2 Bing. 10 ; Hill V. Saunders, Id. 112 ; S. C, in error, 4 B. & C. 529 ; 28 R. R. 375 ; Doc d. Strode v. Seo.ton, 2 C. M. & R. 728. {a) Landlord and Tenant Act, 1851, 14 & 15 Vict. c. 25, s. 1. (h) Com. Dig. tit. Estates (E. 1) ; 2 Blac. Com. 13f5. (c) Utty Dales case, Cro. Eliz. 182. {d) Post, Gh. V. s. 6 {,•). (c) See Co. Litt. 29a-30b ; Biickivorth v. Thirkcll, 3 B. & P. 652 n. (/) See Co. Litt. 30b-41a ; Moudy v. King, 2 Bing. 447. {(j) Ante, sect. 4. (]l) Bac. Abr. tit. Leases (L 1); Miller V. MaynwaHng, Cro. Car. 399. (0 Landlord and Tenant Act, 1851, 14 & 15 Vict. c. 25, s. 1. (i) Bac. Abr. tit. Leases (L 1) ; Miller V. Maynwaring, Cro. Car. 399. (Z) Anon., Moor. pi. 25. Sect. 7. — By Joint Tenants and Tenants in Common, 13 a confirmation by each as to the shares of the others (in) ; and Ch. I. Sect. 7. this is so, even in the case of a lease by tenants in common which Leases by Joint ..,..,, . , ' Tenants. &c. IS joint in its terms {n). -^ — Joint tenants have unity of title, unit}- of commencement of title, .Toint unity of interest, so as to have equal shares in the joint estate, unity ^'^'^'^"^J'- of possession, as well of every part as of the whole, and right of survivorship. And it follows from the right of survivorship, that where joint tenants concur in granting a lease, the interest of the lessee continues, notwithstanding the decease of either of the lessors, and the survivor is entitled to the whole rent (o). So, if the lease be at will, the death of one of the lessors does not operate as a counter- mand of the tenancy even for a moiety ; all survives to the other, and if the lessee continue his possession, the survivor may maintain an action for the whole rent {p). So, if one joint tenant make a lease of his moiety for years, and die before the lessee's entry, the lease will bind the survivor, and the lessee will retain his interest in the moiety demised until his term expire. And so one joint tenant may make a lease to commence after his death, and his co-tenant, if he survive, will be bound by it {q). But though each joint tenant is considered entitled to the whole Alienatiou. while the joint tenancy continues, and is said to be seised " per my et per tout " (r), yet for the purposes of alienation, each has an exclu- sive right to and dominion over, his own share or proportion ; and, therefore, if one of two joint tenants make a lease of the whole, his moiet}^ only will pass (s). So a lease purporting to be made b}^ both, and executed by one onl}-, is a good lease for the moiety of him only who has executed {t). A joint tenancy in freeholds and leaseholds is not severed by the Marriage, marriage of a female joint tenant, or by a subsequent demise by her husband and the other joint tenant {tt). Tenants in common have neither unity of title, or of commence- Tenancy in ment of title, or of interest (so that they may have unequal shares in the estate in common), but only unity of possession, nor have they any right of survivorship. It is provided by 4 & 5 Anne, c. 16 (e. 3 in the Revised Statutes), Action of that actions of account may be brought and maintained by one joint one against tenant or tenant in common against another as bailiff for receiving ""othei- {m) Hcatherly d. Worthington v. JVcston, Whitlock v. Horton, Cro. Jac. 91 ; Bel- 2 Wils. 232 ; Doe v. Errincjton, 1 A. & E. lingham x. Alsop, Cro. Jac. 52 ; Clerk v. 750 ; Burnc v. Cambridge, 1 Moo. & R. 539. Clerk, 2 Vern. 323. («) Thompson v. Haheivill, 19 C. B., (r) Lit. s. 288 ; Co. Lit. 186 a. N. S. 713 ; 35 L. J., C. P. 18. (s) Co. Lit. 186 a ; Bell ingJiam v. Alsop, (o) Hcnstead's case, 5 Co. R. 10 b ; Doe Cro. Jac. 52. d. Aslin V. Summcrsett, 1 B. & Ad. 135. [t) Cartio-ight's case, cited 1 Vent. 136. (p) Henstead's case, 5 Co. R. 10 b. («) Palmer v. Bich, [1897] 1 Ch. 134 ; iq) Lit. s. 289 ; Grnte v. Locroft, Cro. 66 L. J., Ch. 69 ; 75 L. T. 484 ; 45 W. R. Eliz. 287 ; Harbin v. Barton, Moor. 395 ; 205, per Stirling, J. 14 Chap. I. — By whom Terms granted. Ch. I. Skct.7. Leaneshy Joint Tenants, ifc. Co-owners usually join in demising. Lease by one to another. Expense of Kepairs. more than comes to his just share and proportion ; but there is no relationship of trust or agency in one co-owner of a property towards the other ; and where one collects the rents of the whole he does so not in the capacity of agent, but of owner {tt). It is obviously convenient, whether the co-ownership be in common or joint, for the co-owners to join in demising, and the}'^ not only usually do so, but usually do so through a common agent. If they differ as to the tenant to be accepted, or the terms of any proposed tenanc}', each may demise his share to a separate tenant, or to the same tenant on separate rents. In the case of land already jointly demised, notice to quit by one to quit his share is a notice by all to quit the whole ; but if the demise be not joint and a share of land held in common is separately demised, although another share be separately demised also, the notice to quit any share is separate also, and does not of>erate as a notice to quit the whole. One joint tenant or tenant in common may make a lease for years of his part to his companion ; for it only gives the latter a right of taking the whole profits instead of the moiety ; and he may contract with his companion for that purpose, as well as he may with a stranger («) ; and such a lease extinguishes the jointure for the time {x), and gives a right to distrain for the agreed rent (?/), and also a right of action for use and occupation in case of a holding over {z). If there be three or more joint tenants, the lessee would hold the share demised to him as tenant in common with the others (a). One tenant in common who has expended money on repairs which are ordinary rej)airs onl}^ has no right of action against his co-tenant for contribution {h). Sect. 8. — By Coparceners. Where a tenant in fee or in tail dies, leaving several daughters and no son ; or several sisters and no issue, father or brother ; or several aunts and no issue, &c. ; lands descend among all the daughters, sisters, aunts, &c., equally, who make but one heir, and are called coparceners (c). Although they have an unity, they have not an entirety of interest, but are properl}^ entitled each to the whole of a distinct share, and there is no survivorship among them {d). Until partition is made {e), the}' may either join in a lease or each may {tt) Kenncchi v. Dc Traford, [1897] A. C. 180 ; 66 L. J., Ch. 413 ; 76 L. T. 427; 45 W. R. 671. {u) Coivper v. Fletcher, 6 B. & S. 464 ; 34 L. J., Q. B. 187 ; Leigh v. Dickeson, 15 Q. B. D. 60 ; 54 L. J., Q. 15. 18 ; 33 ^Y. R. 538— C. A. ■ (x) Co. Lit. 186 a. (y) Cow2xr v. Fletcher, snpra. (~) Leigh v. Dickesou, supra and infra. (a) Jurclain v. Steere, Cro. Jac. 83 ; Bla.ckastc7-' s case, Noy, 13. {h) Leigh v. Dickeson, supra, note {u). {c) Com. Dig. tit. Parceners {A. . 1), (A. 3). {d) Co. Lit. 164 a. [e) See the Partition Acts, 1868 and 1876 (31 & 32 Vict, c. 40, and 39 & 40 Vict, c. 17), Chitty's Statutes, tit. "Partition." Sect. 10. — Sublease, by Tenant for less than Years. 15 make a lease of her own share. If the}' join in a lease, it operates <-'«• I.Sect.8. (as with tenants in common) as the separate demise by each of her Ltmses by ^ ... i.oparceners. share, and should be so pleaded (/). If they join in a lease they hold the rent reserved in common (r/) ; the observations, therefore, made as to leases by tenants in common [h) apply also to leases by coparceners. One cannot sue separately for her portion of rents accruing to her and her fellows (i). Sect. 9. — Sublease, hy Tenant for Years. A lessee or tenant for years, who is not restrained by his lease Sublease. from subletting, may demise for any less term than he himself has, at such rent, and subject to such covenant, &c., as may be agreed on {k). A rent-charge granted for life to a tenant for years is not void, but l!ent-Lhaige. is good as a chattel interest ; and the goods of a stranger not shown to hold the premises by title paramount to the rent-charge (as by a prior demise) inay be distrained for the arrears (/). Sect. 10. — Sublease, hy Tenant for less than Years. Tenants for less periods than for years, but who are possessed of a certain quantity of interest, maj'' alienate the whole, or any part of it, unless expressly restricted from so doing. In fact, every tenant, except a tenant at will or at sufieraiice, has a right, in the absence of a contract to the contrary, to make a sub-tenancy, as incident to his tenancy. A tenant from year to year, therefore, may assign his term, or may B}- Tenants underlet part of it, as for three-quarters of a year, or so many year months, &c. ; but he cannot by underletting grant an interest exceeding his own in point of duration. If he grant a lease by deed for twenty-one years, such term will continue in force during his own yearly tenancy {m). If he underlet from year to year, the sub- tenancy will take effect during his own tenancy, and he will have a sufficient reversion to enable him to distrain for the rent {n). A tenant for a less term than one year, as for half a year, a quarter, or a month, or the like, may grant his interest, or any portion of it, to another, unless some agreement subsists between him and his lessor, which expressl}' restricts him from making such disposition. (/) Milliner v. Robinson, Moor. \)\. 939. Cli. A^'II. sect. 7, post, tit. Sub-Lease. ig) 2 Prest. Abstr. 74. (I) Saffery v. Elgood, 1 A. & E. 191. (/i) Ante, sect. 7. {m) ilackay v. Mackrcth, 4 Doug. 213 ; (i) Dcclianns v. Honoood, 10 Biug. 526. Oxlcy v. James, 18 M. & \V. 209. [k) Bac. Abr. tit. Leases ; Rex v. Wil- («') Pike v. Eyre, 9 B. & C. 909 ; Curtis sm, 5 JL & l!y. 157, n. See further v. IVhccler, :\loo. k 31. 493. 16 Chap. I.— By whom Teems granted. Ch. I. Sec. 10. Sublease, by Tenant for Years. By Tenants at Will. By Tenants on Sufferance. A tenant at will cannot demise, for that would amount to a deter- mination of his estate at will (o) ; but a demise by a tenant at will, with possession thereunder, will create a tenancy by estoppel as between him and his lessee (_/:> ), and will be good as against himself (g). A tenant on suiferance cannot demise (r) ; but a demise by such tenant, with possession, will create a tenancy by estoppel (s). Restrained by lAnne, stat. 1, c. 7, s. 5. Leases for 31 Years or Three Lives. Building or Repairing Leases for 50 Years. Leases by the Commis- sioners of Woods and Forests. Sect. 11. — Lease hy the Crown. The sovereign is a corporation sole, and at common law might have granted leases for lives or for years to any extent, and have thereby bound the successors {t). But by 1 Anne, c. 1, s. 5, every grant and lease by the crown of any lands and tenements thereto belonging (except advowsons and vicarages) shall be void, miless made for a term not exceeding one-and-thirty years, or three lives, or for some term of years determinable upon one, two, or three lives, to commence from the date or making thereof : and if made to take effect in reversion or expectancy, the same, together with the estate or estates in possession, not to exceed three lives, or the term of one-and-thirty years in the whole : the tenant to be liable to punishment for waste : the ancient or most usual rent or more, or such other rent as in the said act mentioned, to be reserved and made payable during the whole term. By sect. 6, where the greatest part of the yearly value of any such crown land consists of buildings thereon which want to be repaired or re-edified, a lease thereof may be granted for any term not exceeding fifty years or three lives, subject to similar restrictions and conditions to those above mentioned («.)• The above enactments, however, are to a very great extent repealed (.r) ; and in modern times most of the crown lands have been placed under the management of the Commissioners of Woods, Forests, and Land Revenues, who act under the orders, directions, instructions and r;iles of the Lords of the Treasury {y). They may (o) 1 Inst. 57 : Moss v. GalUmore, 1 Doug. 279 ; 1 Smith, L. C. ; Birch v. Wright, 1 T. R. 382 ; 1 R. R. 223. (p) Post, Chap. V. sect. 22. (g) Blunden v. Bough, Cro. Car. 302 ; Doc d. Goody v. Carter, 9 Q. B. 865 ; Cole Ejec. 449. (r) Thunder d. Weaver v. Belcher, 3 East, 499 ; Cole Ejec. 456. (s) Post, Chap. V. sect. 22. (t) Com. Dig. Grant (G. 3). (») See also 1 Geo. 3, c. 1 ; 34 Geo. 3. c. 75 ; but none of the restrictions in any of these acts applj' or extend to the ]}rivaie estates of her Majesty, which are regulated by 25 & 26 Vict. c. 37. (x) See 19 Geo. 3, c. 45, s. 1 ; 34 Geo. 3, c. 75, s. 1 ; and 52 Geo. 3, c. 161, s. 1. {y) 10 Geo. 4, c. 50 ; 2 & 3 Will. 4, cc. 1, 112 ; 3 & 4 Will. 4, c. 1 ; 2 & 3 Vict, c. 80 ; 3 & 4 Vict. c. 87 ; 4 & 5 Vict. c. 40 : 7 & 8 Vict. c. 1 ; 8 & 9 Vict. c. 99 ; 14 & 15 Vict. c. 42 (and the numerous acts mentioned in the schedule to that act) ; 15 & 16 Vict. c. 62 ; 29 & 30 Vict. c. 62. Sect. 11. — Lease by the Crown. — Sect. 12. — By Corporation. 17 y sect. 3, where it has been the usual practice to renew leases for Short renewal, forty, tbirty or twentj'-one years respectivel}' at shorter periods than (/t) And see 13 Eliz. c. 10, s. 3, ante, {!.) Doc d. Murray v. Bridges, W>. k A. p. 23, explainud hy 14 Eliz. c. 14. 847. As to tlie sale of land for the redemp- (i) Bp. of Salisbury s case, IGQo. R. 61 a. tion of land-tax, see Warner v. Potchclt, [k) Sect. 2 ct seq. 3 B, & Ad. 921. 26 Chap. I. — By whom Terms granted. Ch.I. Sec. 14. Ecclesiastical Leases i^Enahling, ^-c, Acts). Under Special Acts. By way of confirmation only. fourteen, ten or seven years respectively, and that practice is certified as in this section provided, such leases may be renewed at shorter intervals, according to the practice so certified. Sect. 6 provides, that nothing in this act contained shall prevent any grants or renewal of leases which may have been authorized by acts of parliament specially relating to the particular estates demised by such leases (??t). By sect. 7, renewed leases, by way of confirmation only for the same life or term, may be granted. By sect. 8, no lease not authorized bv the laws and statutes now in force " shall be rendered valid by anj-thing in this act contained." By sect. 9, leases "contrary to this act shall be void ; " but this was qualified as to sect. 2 by 6 & 7 Will. 4, c. 64, as before mentioned. Lease of Parsonage to contain Condition for avoidin£C it. Incnmbents may grant Leases for 14 Years with Consent of Bishop and Patron. In certain cases the Leases may be for 20 Years. (b) The Acts of Queen Victoria. By the Pluralities Act, 1838, 1 & 2 Yict. c. 106, s. 59, " any agreement made for the letting of the house of residence, or the building, gardens, orchards, or appurtenances necessary for the con- venient occupation of the same, belonging to an}'- benefice, to which house of residence anv spiritual person may be required, b}^ order of the bishop as aforesaid, to pi'oceed and to reside therein, or which may be assigned or appointed as a residence to any curate by the bishop, shall be made in writing, and sliall contain a condition for avoidimi the same, upon a copy of such order, assignment orw appoint- ment being served upon the occupier thereof or left at the house, and otherwise shall be null and void." And a summary remed}^ is pro- vided for enforcing such condition. By the Ecclesiastical Leases Act, 1842, 5 & 6 Vict. c. 27, which applies to farming leases, incumbents of ecclesiastical benefices (w) may, with the consent of the bishop and patron, lease lands belonging to their benefices, except the parsonage house and ofiices and ten acres of glebe situate most convenient to be occupied therewith, for any term not exceeding fourteen years, subject to the restrictions and conditions imposed upon them by the said act for the benefit and protection of their successors. But it is provided that " the term to be granted by any such lease as aforesaid may be twenty years in any case where the lessee shall covenant thereby to adopt and use any mode or system of cultivation more expensive than the usual course, or to drain or subdivide, or embank and warp at his exjoense any part of the demised premises, or to erect, at his own expense, {m) See 18 Eliz. c. 11, ante, p. 24. dowed public chapel, iiarocliial chapelry {n) By s. 15, " the woi'd ' benefice ' shall and district chapelry; tlie incumbent of be construed to compi-ehend every rectory, which in right thereof shall be a corpora- vicarage, perpetual curacy, donative, en- tion sole." Sect. 14. — Ecclesiastical Leases. 27 on the said premises any buildings, or to repair in a more expensive Ch. I. Sec. 14. manner and at a greater expense than is usually required of lessees Ecclesiastical of farms any buildings on the demised premises, or in any other of Victoria). manner to improve at his expense the demised premises or any part thereof" (o). Xo lease granted under this act can be surrendered without the consent of the bishop and patron (p). The act itself must be referred to for details. At common law a lease granted by the incumbent of a benefice, in whatever terms it was framed, operated as a demise so long only as he continued incumbent, for he could not pass a greater interest (q). By sect. 4, the execution by the bishop and patron whose con- Effect of sents are made requisite is conclusive evidence that the lease does Consents as Evidence. not comprise any lands which ought not to be leased under the pro- visions of the act, that a proper portion of the glebe lands remains unleased, that the rent reserved is the best and most improved rent that could be reasonabh' gotten, and that all the covenants contained in such lease are proper covenants. In consequence of sect. 4, a lease which is executed by the patron Validity of and ordinar}' as well as the incumbent may be valid in favour of the Lease '^^ lessee, although it does not strictly comply with all the requisitions of the statute : for instance, where it reserves the rent half-yearly instead of quarterly (r). Quod fieri non debet factum valet. The above act does not repeal 13 Eliz. c. 10: and therefore a The Act does rector, with the consent of the patron and bishop, may demise his °g yAvi\ 10 glebe under the powers of the common law, subject to the provisions of the statute of Elizabeth, though the lease may not be conformable to the restrictions imposed bv the statute of Victoria (s). Parsons and other corporations sole could not at common law Tenancies bind their successors even b}' tenancies from year to 3'ear, nor under A'^yeai^^^ any of the Ecclesiastical Leasing Acts can they bind their successors by such tenancies without having obtained the consents in those acts mentioned. Such tenancies, however, where the subject-matter is "farm or lands," if created without such consents, do not de- termine ipso facto by the death of the parson, but continue to the end of the current year of the tenancy by virtue of the Landlord and Tenant Act, 1851, 14 & 15 Vict. c. 25, s. 1 (post. Appendix), under which statute also the tenant " shall then quit." The successor is entitled to a fair proportion of the rent for the period which may have elapsed from the day of the death of the predecessor to the (o) Sect. 1. (r) Jcnkiiis v. Green, 27 Beav. 440 ; but \'jp) Sect. 5. the Ecclesiastical Leases Acts, 1861 and (q) Wheeler v. Hcydon, Cro. Jac. 328 ; 1862, 24 & 25 Vict. c. 105, and 25 & 26 FriA^e V. Williams, 1 M. & W. 6 ; Doc d. Vict. c. 52, post, seem, to a great extent, Kcrby v. Carter, Ry. &, Moo. 237 : Doe d. to get rid of the effect of this decision. Tennyson v. Lord Yarborourjh, 1 Bing. 24 ; (s) Jenkins v. Green, 28 Beav. 87 25 R. R. 575. 28 Chap. I. — By whom Terms granted. Ch.I. Sec. li. Ecclesiastical Leases (Acts of Victoria). Ecclesiastical Leasing Act, 1842. Ecclesiastical Conimis- siouers. Proviso for Re-entry. A Premium or Fine maj' be taken. Ecclesiastical Leasing Act, 1858. end of such current year, and no notice to quit is necessary or required by or from either party to determine the tenancy. If, however, the subject-matter of the tenancy be merely a dwell- ing-house, the above statute does not apply, and the tenancy if made without the required consents determines ipso facto by the death of the parson. By "The Ecclesiastical Leasing Act, 1842" (^), as amended by " The Ecclesiastical Leasing Act, 1858" {u), any ecclesiastical cor- poration, aggregate or sole, except any college (.r) or corporation of vicars choral, j^riest vicars, senior vicars, custos and vicars or minor canons, and except also any ecclesiastical hospital, or the master thereof, ma}^ with tJie consent of the Ecclesiastical Com- missioners for E)i(jland, and with such further consents as in the said acts mentioned, grant building and repairing leases for any term not exceeding ninety-nine years : also leases of running water and way-leaves, and other rights and easements, for any term not exceeding sixty years : also mining leases, for any term not exceeding sixty years : all of which leases must be made subject to certain restrictions and conditions for the protection and benefit of their successors. The acts must be referred to for details, but it may be mentioned here that sect. 1 of the act of 1842 expressly authorizes a lease "with or without a proviso that no breach of covenant (except the covenant for payment of rent and other such covenants, if any, as may be agreed between the parties to be so excepted) shall occasion any forfeiture unless judgment shall have been obtained in an action for such breach of covenant, nor unless the damages and costs to be recovered in such action shall have remained unpaid for the space of three calendar months after judgment shall have been obtained in such action." The execution of any such lease by the necessary consenting parties is to be conclusive evidence that the requisites of the above acts have been complied with. Under sect. 30 of the first-mentioned act they were prohibited from taking an}^ premium, fine or foregift ; but that was repealed by 21 & 22 Vict. c. 57, ss. 1, 2. By sect. 8 of the first-mentioned act, previous powers of leasing are not interfered with. By " The Ecclesiastical Leasing Act, 1858 " (21 & 22 Vict. c. 57), s. 1, where it is made to appear to the Ecclesiastical Commissioners that all or any part of the lands, houses, mines, minerals or other propert}' of any ecclesiastical corporation which are by the act of [t) 5 & 6 Vict. c. 108. ecclesiastical leases, or to leases of the (u) 21 & 22 Vict. c. 57. Tlie Leases possessions of any college, lios[iital, or Act, 1849, 12 k 13 Vict. c. 26, for grant- charitable foundation. ing relief against defects in leases under (X') As to leases by colleges, see post, powers, does not (see sect, 7) apply to Sect. 15. Sect. 14. — Ecclesiastical Leases. 29 1842 authorized to be leased, might to the permanent advantage Cn. I. Sec. 14. of the estate or endowments of such corporation be leased in any Ecclesiastical , . . , . . Leases [Acts manner, any ecclesiastical corporation, aggregate or sole, except as in of Victoria). the said act is excepted, mux, with such consents as in the said recited act mentioned, and witli the approval of the said commissioners, lease all or any part or parts of the lands, houses, mines, minerals or other property, cither in consideration or parthj in consideration of premiums or not, or for such other considerations, and for such terms, and subject to such covenants, &c.. Sec, on the part of the lessee as the Commissioners should think proper. The effect of these acts and of ecclesiastical law generally on the Mines, working of mines under the glebe b}' a tenant of a rector was fully commissioTicrs considered by Romer, J., in Ecclesiastical Commissioners v. Wode- ^'- f^f^odekousc. house {y), in which an agreement by the defendant to grant a lease of gypsum at a dead rent of 100/. a year and royalties was held void, and the defendant's tenant restrained from -working, on the ground that the sanction of the plaintiffs had not been obtained. By the Episcopal and Capitular Estates Act, 1851, 14 & 15 Vict. 14 & 15 Vict. . c. 104 &c. <.'. 104 (z), the ecclesiastical corporations, sole or aggregate, with the Episcopal "and approval in writing of the Church Estate Commissioners, may sell. Capitular ^ ^ . *= . . Estates Act. enfranchise or exchange their church lands, or purchase the interest of their lessees. And by sect. 9 no lease of any lands purchased or acquired, or in which the estate or interest of a lessee is purchased or acquired, b}' any ecclesiastical corporation under the act, ma}^ ■except as thereinafter provided, be granted otherwise than from year to year, or for a term not exceeding fourteen years, at the best annual rent that can be reasonably gotten, without fine, the lessee not to be •exempted from liability in respect of waste : the corporations however having power, with the approval of the Church Estate Commissioners, to grant mining or building leases, as therein mentioned {a). By the Ecclesiastical Commissioners Act, 1860, 23 & 24 Vict. 23 & 24 Vict. * . c 1 '^4 s S <". 124, s. 8, no lands assigned or secured as the endowment of any Leases by see under this act may be granted by the archbishop or bishop other- Bisl'ops. wise than from year to year, or for a term not exceeding twenty-one years, at the best annual rent that can be reasonabh' gotten, without fine, the lessee not to be exempted from liability in respect of waste; and the like covenants, &c., to be entered into, with or for the benefit of the archbishop or bishop and his successors, as under sect. 1 of the Ecclesiastical Leases Act, 1842, 5 & 6 Vict. c. 27, are to be (y) Ecclesiastical CommissioncrsY. TFodc- .housc, [1895] 1 Ch. 552 ; 64 L. J., Ch. 329 ; 72 L. T. 257 : 43 W. R. 395 ; 13 R. 372. {z) A temporary act, ameiKled by 17 & 18 Vict. c. 116 ; 22 & 23 Vict. c. 46 ; 23 & 24 Vict. c. 124 ; 31 & 32 Vict. c. 114, •s. 10 ; and continued by numerous E\-pir- ing Laws Continuance Acts ; and lastly by the Expirin>; Laws Continuance Act, 1897 (60 & 61 Viet. c. 54), tmtil the 31st December, 1898. {a) See also the Ecclesiastical Leasing Acts, 1842, 1858, ante, p. 28. 30 Chap. I. — By whom Terms granted. Ch. I. Sec. 14. Ecclesiastical Leases [Acts of Victoria). 24 & 25 Vict. c. 105. Leases of Copyholds by Incumbents. Fines prohibited. Powers to Incumbents. entered into, for the benefit of the mcnmbent and his successors, or as near thereto as the circumstances of the case will permit. Mining and building leases are also authorized b_y the same section with the approval of the Church Estate Commissioners. By sect. 9, the estates committee may inspect repairs and give notice of dilapidations ; and by sect. 11, may, on request, manage and demise lands for an archbishop or bishop. By sect. 31, rights of renewal and other obligations under special acts, &c., preserved, notwithstanding anything done under sect. 10. By the Ecclesiastical Leases Act, 1851, 24 & 25 Vict. c. 105, " tO' Prevent the Future (Irant by Copy of Court Boll and certain Leases of Lands and Hereditaments in England belonging to Ecclesiastical Benefices " {h), after reciting " that there are in England certain ecclesiastical benefices to which belong manors, lands, tenements and hereditaments, which b}' custom or otherwise, the rectors, vicars^ perpetual curates or incumbents thereof have power to grant and lease out for lives and long terms of years, and such grants have been made by them at nominal annual rents to the prejudice of their successors, and it is exj^edient to determine and put an end to the power to make such grants ; " it is enacted as follows : — By sect. 1, "it shall not be lawful for any prebendar}^ of any pre- bend, not being a prebend of any cathedral or collegiate church, rector, vicar, perpetual curate or incumbent, who after the ixissinfi of this act may become j^ossessecl of or entitled to any manors, lands, tenements or hereditaments belonging to any ecclesiastical benefice in England to make any grant by copy of court roll or lease of any such manors, lands, tenements, or hereditaments in consideration of any fine, premium or foregift, but the same may, by au}^ rector, vicar,, perpetual curate or incumbent appointed after the passing of this act, be leased, sold, exchanged, or enfranchised, or disposed of under the provisions of" the Ecclesiastical Leases Act, 1842, the Ecclesiastical Leasing Act, 1842, 5 & 6 Vict. c. 27 ; 5 & 6 Vict. c. 108 ; and 21 & 22 Vict. c. 57, or such of the provisions of such acts respectively as are now in force. By sect. 2, rights of incumbents and others at the time of the passing of the act are preserved. By sect. 3, notwithstanding anything contained in the 11th section of the Episcopal and Capitular Estates Act, 1851, 14 & 15 Vict, c. 104, any rector, vicar, perpetual curate or incumbent shall have such and the same powers of sale, exchange and enfranchisement as are possessed by any ecclesiastical corporation, sole or aggregate^ (b) Amended by the Ecclesiastical Leases Act, 1S62, 25 & 26 Vict. c. 52, post, p. 31. None of the previous Disabling or Restrain- ing Acts extended to copyholds except the- Ecclesiastical Leases Act, 1842, 5 & 6 Vict.. c. 27. Sect. 14. — Ecclesiastical Leases. 31 under any act now in force : and the provisions of the Ecclesiastical Ch. I. Sec. 14. Commissioners Act, 18G0, 23 \- 24 Vict. c. 124, shall, so far as the Ecciesimticai same relate to powers for the raising or application of mone}' by of Victoria). trustees, allowances to lessees, arbitration, valuation, rate of interest, apportionment of rent and substitution of titles on exchange, be applied, mutatis mutandis, to sales, exchanges or enfranchisements of any manors, lands, tenements or hereditaments in this act com- j)rised ; but the proceeds of any such sales or enfranchisements and an}' moneys received by way of equality of exchange, shall be applied according to the provisions in that behalf contained in the said Ecclesiastical Leasing Act, 1842, 5 it 6 Vict. c. 108, and in the said act 21 & 22 Vict. c. 57. By 25 & 26 Vict. c. 52, the prohibition to make any grant by copy 25 & 2G A'ict. of court roll or lease contained in 24 & 25 Vict. c. 105, s. 1, shall not only extend to grants made in consideration of any fine, premium, or foregift ; but shall also extend to all grants and leases made for a longer term or in any other way than according to the provisions of the several statutes mentioned in sects. 1, 3 of that act. By the Ecclesiastical Commission Act, 1868, 31 & 32 A^ict. c. 114, 31& 32 Vict, s. 9, none of the deans and chapters mentioned in the schedule Leases bV to 31 & 32 Vict. c. 19 [including York, Carlisle, Peterhorouqh, Deans aiid *" CliuDtcrs Chester, Gloucester, St. Asaph, Worcester, Chichester, Winchester, when ve- Salishury, Bristol, Canterbury, Exeter, Wells, Rochester, St. DaricVs, endowed. Llandaff, and Windsor,^ and no dean and cliapter after making of any order in council respectinri them, in pursuance of this act, shall demise any land vested in them, otherwise than from j-ear to year, or for a term of years in possession not exceeding twenty-one, at the best annual rent that can be reasonably got without fine ; and shall not make the lessee dispunishable for or exempt from liability in respect of waste ; and in every such lease such or the like cove- nants, conditions and reservations shall be entered into, reserved or contained with or for the benefit of the dean and chapter and their successors, as under sect. 1 of the Ecclesiastical Leases Act, 1842, 5 & 6 Vict. c. 27, are to be entered into, reserved or contained with or for the benefit of the lessor and his successors in a lease granted under tliat section, or as near thereto as the circumstances admit (c), (c) This enactment was intended to put years, or on the dropping of eacli life, an end to the custom -which had long upon payment of a large tine, wliich was prevailed of renewals of leases by deans innnediately divided between the members and chapters at the end of each seven for the time being. 32 Chap. I. — By whom Terms granted. €h. I. Sec. 15, Leases hy Unirersities and Colleges. They are Civil Corporations. Powers of Leasing at ■Common Law. Piestrainiiig or Disabling Acts. Corn Rents under 18 Eliz. ■c. 6. •Oxford, Cambridge, Durham, Eton and Winchester. Proviso for Re-entry. Previous Powers not .aHected. Sect. 15. — By Universities and Colleges. The Universities of Oxford and Cambridge are regarded as civil corporations {d) ; so also are the universities of Durham and Loudon; and the several colleges in all such universities. Like other corporations aggregate, they had at common law povi^er to make such leases of their lands as they thought fit under their common seal, without the consent or confirmation of any other person (e), provided such leases were in conformity Avith their own private statutes, charters and bye-laws. But as such power was often much abused by the members for the time being, to the impoverish- ment of their successors, they have been restrained by divers statutes from leasing their lands, and especially their church proijerty, except for limited terms and subject to certain covenants and conditions intended for the protection and benefit of their successors. Thus it was provided by 18 Eliz. c. 6, that one-third of the rent then paid should be reserved in wheat or malt, as to which statute and reservation, see post, Ch. X. sect. 2 (a). Now by the Universities and College Estates Act, 1858 and 1860 (/), the universities of Oxford, Cambridge, and Durham and the colleges in those universities respectively (including Christ Church, Oxford), and also the colleges at Winchester and Eton, have exten- sive powers (without the consent or control of the Copyhold Commis- sioners or of the Church Estates Commissioners, or of any other person or persons whomsoever), to grant leases for any term not exceeding tirenty-oiie years, subject to certain restrictions and condi- tions for the protection and benefit of their successors ; also to grant building and repairing leases for ninety-nine years, and to enter into previous contracts for any such leases ; also to lease running water and way-leaves, and other rights and easements for sixty 3'ears ; also to grant mining leases for sixty years, and various other pov/ers. The acts must be referred to for details () . Leases granted by trustees under the provisions of this act must be settled in judge's chambers (e). If an act of parliament be necessary, the court will make a declaratory decree that it is proper that an application should be made to parliament to extend the leasing powers (J). (.r) Taken from 21 & 22 Vict. c. 77, s. 2. Middlcton, 3 De G. F. k J. 33. ly) Taken from 21 & 22 Vict. c. 77, s. 4. {h) In re Merry, 36 L. J., Ch. 168 ; 15 (s) Note, that the condition for re-entry "\V. R. 307. •does not apply to breaches of covenant (c) In re Proctor, 26 L. J., Ch. 464. generally. See Chap. IV., sect. 7, post. [d) Savil v. Briu'c, 29 Beav. .')57. (a) Suggested apparently by Cttst v. 3—2 36 Chap. I. — By whom Teems granted. Ch. I. Sec. 17. Leases hy Trustees of Settled Estates. Lease of Mansion House, &c. Leases under Powers in Settlements. Effect of Leases under Powers. Leases by- Trustees not in pursuance of Settled Estates Act nor of a Power. We have already seen {ante, p. 8) that the principal mansion-house, &C. on a settled estate cannot be let without the consent of the trustees of the settlement, or an order of the court. Where any settlement made by deed, will, or otherwise, before or after the passing of the Settled Estates Act, 1856, contains powers to the trustees for the time being (with the consent of the tenant for life) to grant leases, such leases may be granted in accordance with such powers, the powers granted b}^ the Settled Land Act, 1882, being cumulative. The j^rovisions of that act, however, prevail in case of conflict with tlie provisions of the settlement, so that the consent of the tenant for life is in every case necessary (c). AVhere lands are devised to trustees in fee upon trusts or with powers which, in their execution, require the exercise of judgment and discretion, such as granting leases, and the trustees disclaim, so that the estate in fee descends to the testator's heir-at-law, such powers or trusts cannot be exercised or carried into execution by the heir, although he holds the estate subject to the trusts of the will (/). Where the heir of a surviving trustee is the proper party to demise, a lease granted b}' the executors of such trustee is void, and not cured by the Leases Act, 1849, 12 & 13 Vict. c. 26 ig). When an appointment by way of demise is made in pursuance of a power of leasing contained in a settlement, it will take eft'ect in preference and priority to any long term of years limited in the settle- ment for i^roviding any jointure or portions for younger children or the like. The leasing power is considered as controlling and super- seding such term, until it is called into action, after which the leasing power will be put an end to (/<). The person entitled under the settlement, whose estate is displaced or superseded jj/o tanto by any such lease, is considered as the immediate reversioner upon such lease, and may sue for any breach of covenant therein contained (0, and may sue or distrain for the rent thereby reserved (A). Before the Settled Estates Act, 1856 (19 & 20 Vict. c. 120), a trustee having the legal estate in lands might have made leases which would have been valid, jH-ovided they were justified by the quantity of his estate although no express power of leasing was vested in him b}' the settlement. But a party taking a lease from a trustee, with notice of the trust, and without the concurrence of the cestui que trust, was subject to the control of ecjuity (/). There was no general (c) Settled Land Act, 1882, s. 56. if) Rohson V. Flight, 34 L. J., Ch. 226 ; 13 W. R. 393. (g) Ex parte Cooper, re North London II. C'o., 34 L. J., Ch. 373. (h) Doe d. Courtail v. Thomas, 9 B. & C. 288, 293 ; Doe d. Rogers v. Rogers, 5 B. & Ad. 764 ; Rogers v. Humphreys, 4 A. & E. 299 ; Maundrell v. Mcmndrell, 10 Ves. 246 ; 2 Chance on Powers, sect. 1410 ; Carpenter v. Parker, 3 C. B., N. S. 231. (i) Ishenvood v. Oldknow, 3 M. & S. 382. {k) Roqers v. Humphreiis, 4 A. & E. 299. (I) Piatt on Leases, 345. Sect, 17. — Teustees of Settled Estates. 37 rule as to what leases might be granted by trustees, but the}^ were Ch. I. Sec. 17. authorized to do what was reasonable in each particular case(m). Leases by No lease could be safely taken from them without the con- Settled Estates. currence of the cestui que trust, or the sanction of the Court of Chancery (»). "Where a lease is granted under the Settled Land Act, 1882, bj'the Trustees need tenant for life, it is neither necessary nor desirable that the trustees "^jgjf ^ ^^^^^^ should be made formal parties thereto. 1882. If an infant is tenant for life, the trustees of the settlement may act Lease by Sect. 18. — By Trustees of Charities. The estates of charities are subject to the provisions of " The Charitable Charitable Trusts Act, 1853" (16 & 17 Vict. c. 137), as amended by "l^^"^-'*' ^^*^- the Charitable Trusts Acts of 1855, 1860, and 1869, 18 & 19 Vict, c. 124, 23 & 24 Vict. c. 136, and 32 & 83 Vict. c. 110. By the Charitable Trusts Act, 1858, 16 & 17 Vict. c. 137, s. 26, Leases, &c., leases authorized by any two of the Cliarit}- Commissioners sitting charitv^Coui^ as a board under the powers of that act have the like effect as if missioners. they had been authorized by the express terms of the trust affecting the charity. Bv the Charitable Trusts Act, 1855, 18 & 19 Vict. c. 124, s. 15, is & 19 A'ict. " _ , c 124 s 15 the secretaiy of the board is a corporation sole, by the name of" The officia'l ' Official Trustee of Charity Lands," for taking and holding charity Trustees of . ^ n Chanty Lands lands and by that name (instead of the name of " Treasurer of constituted. Public Charities") has perpetual succession ; and all lands vested in the " Treasurer of Public Charities" by that name became vested in like manner and upon the same trusts in " The Official Trustee of Charity Lands." By sect. 16, " the acting trustees of every charit}', or the majority Sect. 16. of them, provided that such majority do not consist of less than Acting three persons, shall have at law and in equitv power to grant all such Trustees to . . . grant Leases, leases or tenancies of land belonging thereto, and vested in the official trustee of charity lands, as they would have power to grant in the due administration of the charity if the same land were legally vested in themselves ; and all covenants, conditions and remedies contained in or incident to any lease or tenancy so granted shall be enforceable by and against the trustees or persons acting in the administration of the charity for the time being, and their alienees or assigns, in like manner as if such lands had been legally vested in the trustees granting such lease or tenancy at the time of the (m) Att.-Gcn. v. Owen, 10 Yes. 555. AcMand, 3 Russ. 373. («) Piatt on Leases. 347 ; Malpas v. (o) Post, sect. 22. 38 Chap. I. — By whom Terms granted. Ch. I. Sec. 18. Leases by Trustees of Charities. Prohibition of Lease for more than 21 years, &c. Lease for more than 21 years, with- out consent of Charity Com- missioners, void. Power of majority of Trustees to let Charity Estates. Char. Trusts Act, 1869, s. 12. execution thereof, and had legally remained in or had devolved to such trustees or administrators for the time being, their alienees or assigns, subject to the same lease or tenancy." By sect. 29 of the same act " it shall not be lawful for the trustees or persons acting in the administration of anj^ charity to make or grant otherwise than with the express authority of Parliament, under an}' act already passed, or of a court or judge of competent jurisdiction, or according to a scheme legally established, or with the approval of the board " [i.e., the Charity Commissioners], *' any sale, mortgage, or charge of the charit}-, estate or any lease thereof in reversion after more than three years of any existing term, or for any term of life, or in consideration wholl}' or in part of any fine, or for any term of years exceeding twenty-one years." A lease in contravention of this section is absolutely void, as was held b}^ Charles, J., in the case of a lease of a part of the property of " Bisho}) Rowland's Charity" for forty-five years without the approval (which the}^ had in fact refused to give) of the Charity Commissioners ( p ). By the Charitable Trusts Act, 1860 (23 & 24 Vict. c. 136, s. 16), a majority of two-thirds of the trustees of any charit}' assembled at a meeting of their body duly constituted, and having power to deter- mine on any lease of any property of the charity, was empowered to lease the charity property. A clear majority was substituted for the two-thirds majority by s. 12 of the Charitable Trusts Act, 1869, 32 k, 33 Vict. c. 110 (s. 17 of which act repealed s. 16 of the act of 1860). This section, which, it will be observed, is retrospective, is as follows : — Where the trustees or persons acting in the administration of any charity have power to determine on any sale, exchange, partition, mort- gage, lease or other disposition of any property of the charity, a majority of those trustees or persons who are present at a meeting of their body duly constituted and vote on the question shall have and be deemed to have always had full power to execute and do all such assurances, acts and things as may be requisite for carrying any such sale, exchange, partition, mortgage, lease, or disposition into eflt'ect, and all such assurances, acts and things shall have the same effect as if they were respectively executed and done by all such trustees or persons for the time being and by the official trustee of charity lands. Before the act of 1860, trustees of charities might have granted leases of the lands belonging to the charities, provided they were such in all their circumstances as were beneficial to the interests of the charities ; but if otherwise, tlie Court of Chancery would have {p) Bishop of Bangor v. Parry, [1891] 2 Q. B. 277; 60 L. J., Q. B. 646 ; 65 L. T. 379 ; 39 W. R. 541, per Charles, J. ; decided b}' analogy to Macjdalen Hospital V. Knotts, 4 App. Cas. 324, and p. 23, ante. Sect. 18. — Trustees of Charities. 39 set them aside at any distance of time (q), until protected b}' the Ch. I. Sec. 18. Eeal Propert}' Limitation Act, 1833 (r). Where it was necessary Leases hj to grant a large number of building leases of charity lands in nearly Charities. the same form, under the provisions of an act of parliament, and one lease had been settled in chambers, the Court of Chancery allowed the charity to grant other building leases from time to time in the same form, without reference to chambers, the model lease being appended to the order (s). Trustees of a charity have been authorized to grant building leases for 600 years, such being the custom of the neighbourhood, and it appearing beneficial {t). We have seen {ante, sect. 16) that under various statutes parish Letting of officers and others are empowered to let lands in allotments to " in- uuder^Allot"'^ dustrious cottagers " and the like. The principle of these statutes meuts Exten- is applied to charity lands generally by the " Allotments Extension i882, to' Act, 1882 " (45 & 46 Yict. c. 80). By s. 4 of this act " all trustees cottagers, &c. in Avhom lands are vested, or by whom the same are held or managed for the benefit of the poor of any parish or place in or adjoining to that in which such lands are situate, and whereof the rents or produce are distributed in gifts of mone}^ doles, fuel, clothing, bread or other articles of sustenance or necessity, shall, where such lands are not otherwise used for the benefit of the parish in which it is situate as a recreation ground, or otherwise, for the enjoyment or general benefit of the inhabitants, take proceedings " in manner in the act mentioned "for letting such lands to cottagers, labourers and others." By s. 10, if the trustees neglect to comply with the act, the Charity Commis- sioners may compel compliance, on the application of not less than four persons who would be entitled to the benefit of the act. By s. 12, rent or possession may be recovered under ss. 110, 111 of the Inclosure Act, 1845, and by s. 13 every allotment shall be let free of all charges " at such rent as land of the same quality is usually let for in the same parish," and " one person shall not hold any allotment exceeding one acre." By sub-sect. 6 of s. 13, " if at any time the trustees are unable to Letting of let any allotment or any portion thereof, they may let the same, or ^^jjer person such portion thereof as may be unlet, at the best annual rent which tlran cottager, can be obtained for the same, without any premium or fine, and on such terms as may enable them to resume possession thereof within a period not exceeding twelve months, if it should at any time be required to be let for allotments." {q) Att.-Gen. v. Cross, 3 Mer. 540 ; Att.- 136 ; Att.-Gen. v. Payne, 27 Beav. 168 ; Gen. V. Brooke, 18 Ves. 320; Att.-Gcn. v. Att. -Gen. v. Magdalen College, Oxford, 6 Lord Hotha?n, 3 Russ. 415. H. L. Cas. 189, 206 ; 26 L. J., Ch. 620. (r) 3 & 4 WilL 4, e. 27, ss. 24, 25, 26, (i) Att.-Gcn. v. Christ Church, Oo-ford, 27, which extend to charities ; Att.-Gen. Giti". 514 ; 8 Jur.,N. S. 989. V. Lavey, 19 Beav. 521 ; 4 De Gex & J. (0 In re Cross, 27 Beav. 592. 40 Chap. I. — By whom Terms granted. Ch. I. Sec. 19. Leases of Allotments and Small Holdings. Conditions of Letting Allotments. Letting of Allotments by Parish Councils. Letting of "Small Holding " by County Council. Sect, 19. — By Sanitary Authorities in Allotments and by County or Parish Councils in Small Holdings. The Allotments Act, 1887 (50 & 51 Vict. c. 48), enables, and to a certain extent and under certain circumstances obliges, sanitary authorities to acquire, either by hiring or purchase, land for the purpose of letting it in allotments " to persons belonging to the labouring population resident in their districts." When acquired, the land, by s. 7 of the act, is to be let under regulations framed by the sanitary' authorit}^ under the control of the Local Government Board, and the regulations " may define the persons eligible to be tenants, the notices to be given for the letting, the size of the allotments, the conditions under which they are to be cultivated, and the rent to be paid." But the regulations are by the same section " to make provision for reasonable notice to be given to any tenant of the determination of his tenancy," and are also generally " subject to the provisions of the act," and the 7th section contains a set of important provisions, enacting that — The rents shall be such as may ensure the sanitary authority from loss : The sanitarj' authority shall for the purposes of rates and taxes be deemed the occupiers, but may add the sums paid by them for such purposes to the rents : One person shall not hold more than one acre, and an allotment shall not be sublet : No building "other than a toolhouse, shed, greenhouse, fowlhouse or pigstye " shall be erected : A tenant may remove fruit and other trees planted by him, for which he has no claim for compensation. The Local Government Act, 1894, 56 & 57 Vict. c. 73, by s. 10 (6) applies sects. 5 — 8 of the Allotments Act, 1887, to any allotment hired by a parish council as if that council were the sanitary authority and also the allotment managers, but also provides that the parish council may let more than one acre to one person, and may permit any stable, cowhouse, or barn to be erected on the allotment, but shall not break up, or permit to be broken up, any permanent pasture without the assent of the landlord. The Small Holdings Act, 1892, 55 & 56 Vict. c. 31, which emj^owers a County Council to acquire land for sale in small holdings of not less than one acre or more than fifty acres, also empowers the council in the case of a holding of not more than fifteen acres in extent or of not more than 15L in annual value, to offer to let it, if either (1) persons desiring to cultivate are Sect. 20. — Leases by Infants. 41 unable to buy, or (2) the land lias been hired by the council on Ch. I. Sec. 19. lease or otherwise (»)• Leases of Allotments and Small Holdings. Sect. 'iO.—Bi/ Infants. At common law leases made by infants are not absolutely void, but voidable on their attaining their majority (x), and that notwith- standing the rent reserved is not the best obtainable (y). The lessee can in no case avoid the lease on account of the infancy of the lessor (z). The lease is voidable by the infant when he becomes of age (a), but not before (h) ; or by his heir if he die under age (c). To avoid a lease by an infant under which the lessee is in possession upon the lessor attaining twenty-one, some act of notoriety, ex. gr., ejectment, entr^^, or demand of jDossession is requisite : the mere execution of a new lease to another lessee is not sufficient to divest the estate created by the first lease (d). If when of age he receives any rent payable after he became of age, he thereby ratifies the lease from the day of its execution (e). A mortgage of the land to the lessee by a deed reciting the lease amounts to a ratification (/). Subject to the above qualification, all gifts, grants or deeds made bj^ infants, by matter in deed, or in writing, which take effect b}' delivery of his hand, are voidable by himself, by his heirs, and by those who have his estate (' Testa- iiienttirv pursuant to 12 Car. 2, c. 24, ss. 8, 9, 10, 11, or by the mother, or Guardians, both parents under the Guardianship of Infants Act, 1886, 49 ^S: 50 Vict. c. 27, is the same in office and interest as a guardian in socage, but his authority continues until the infant attains the age of twenty- one years {x) ; and it seems clear that a lease by him stands on the same footing as a lease by a guardian in socage, with the additional advantage to the lessor that the period of minority is extended from fourteen to twenty-one years {y). Special guardians, b}^ custom of London and other places, do not fall within the statute {z). 3. Guardians by nature are the father or his heir, heiress, or By Guanliaus heiresses, and in some cases the mother, until the age of twenty-one years (a). They may, perhaps, possess the power of leasing at will, but not for a term (/>). by Xatiue. (r) Co. Lit. 87 b; E. v. OaUcy, 10 East, 494 ; R. V. SiitUm, 3 A. & E. 697. (s) Wade v. Baker, 1 Ld. Raym. 131 ; Hutt, 16 ; Osborn v. Garden, Plowd. 293 ; Bae. Abr. tit. Leases (I. 9) ; Willis v. JFhitetvood, 1 Leon. 323 ; Ji. v. Oakley, 10 East, 494 ; Keilw. 46 b. [t) Bac. Abi-. tit. Leases (L 9). {ic) Balder v. Blackhorn, Brownl. 79. {x) 1 Blac. Com. 462 ; Bedell v. Con- stable, Vaiigh. 179 ; Fmc d. Parry v. Hodgson, 2 Wils. 129 ; Cole Ejec. f.S3. (y) Smith, L. & T. 59 ; Roe v. Hodgson, 2 Wils. 129, so far as it is an authoritj' to the contrarj', is not law. See Blatt on Leases, Vol. L, p. 376. {z) Sect. 10. («) 1 Blac. Com. 461 ; R. v. Thorp, Carth. 384. (/') Pigot V. Garnisli, Cro. Eliz. 678, 734. 44 Chap. I. — By whom Teems granted. Ch. I. Sec. 21. Leases hij Guardians. By Guardians for Nurture. By Guardians by Election. By Guardians appointed by Hish Court. Guardians for purposes of Agricultural Holdings Act. 4. The father or mother is guardian of all the children for nurture until they attain the age of fourteen years (c). A guardian for nurture cannot make any leases for years, either in his own name, or in the name of the infant, for he has only the care of the person and education of the infant ; for there may be such guardian, though the infant has no lands at all, although in such a case there cannot be a guardian in socage : but such guardian, it seems, may make leases at will {d). 5. An infant seised of freehold lands, and being unprovided with a testamentary guardian, may, on attaining fourteen years, elect a guardian to act until he attains twenty-one {e). This guardianship, like that of socage, involves a similar power on leasing the estate of the infant (/). 6. From a ver}' early period guardians have been appointed by the Court of Chancer^^ under a power which by the Judicature Act, 1873, s. 34, is exerciseable by the Chancery Division of the High Court. Guardians so appointed might, by virtue of the Infants' Property Act, 1830, 11 Geo. 4 & 1 Will 4, c. 65, s. 17, but not otherwise {g), make such leases as the court should direct without fine, which leases may be made to extend beyond minority (/<). We have already seen that this statute is not expressly repealed, and it is no doubt in force so far as the Settled Land Act, 1882, 45 & 46 Vict. c. 38, is not in conflict with it. The Settled Estates Act, 1877, 40 & 41 Vict. c. 18, s. 44, empowered guardians to exercise on behalf of infants all powers given by the act, and the words would include the leasing powers, as to v/hich see sect. 4, ante. This enactment also is unrepealed. The 25th section of the Agricultural Holdings Act, 1883, 46 & 47 Vict. c. 61, provides that where a landlord is an infant the county court may, on the application of any person interested, appoint a guardian for the purposes of that act. Sect. 22. — By Trustees fur Infants. Convej'ancino- The Convevancing and Law of Property Act, 1881, 44 &. 45 Vict. Act, 1877. "Where a person in his own right seised ol or entitled to land for an estate in fee simple is an infant, the land shall be deemed (c) 1 Blac. Com. 461 ; Roacli v. Garvan, 1 Yes. 158 ; 3 Cro. R. 38. ((/) Willis V. IVhitewood, Owen, 45 ; 1 Leon. 322 ; Shopland v. Radlcn, Owen, 115 ; Cro. Jac. 55, 98 ; Godb. 143 ; 4 Leon. 238 ; Pigot v. Garnish, Cro. Eiiz. 678 ; Bac. Abr. tit. Leases (L 9). {<•) 1 Blac. Com. 462 ; Co. Lit. 87 b ; 2 Atk. 624 ; 1 Yes. 91. (/) Bac. Abr. tit. Leases (L 9); Pitcairn V. Oijbournc, 2 Yes. 375. {(/) See Simpson on Infancy, p. 333. {h) Anstcy v. Hobson, 1 Sni. & G. 505. Sect. 22. — Leases by Trustees for Infants. 45 to be a settled estate within the Settled Estates Act, 1877." We Cii.I.Sf.c.22. have already seen what powers of leasing were given bv that Leases by - ^ te & . Trustees jf^or act (i), and also that s. 49 of the same act further provided that Lifants. all powers given by the act might be exercised by guardians on behalf of infants. The Settled Land Act, 1882, 45 & 46 Vict, c. 38, though not Settled Land repealing the above enactments, ajopears by ss. 59, 60 to supersede gg 59 qq' them. The exact words of these sections are : — 59. Where a person who is in his own right seised of or entitled in posses- "Settled siou to land, is an infant, then for purposes of this act the land is settled ^^""' '^^^'"^ own6r land, and the infant shall be deemed tenant for life thereof. infiint. 60. Where a tenant for life, or a person having the powers of a tenant for Po^vei-s of life xmder the act (k), is an infant, or an infant would, if he were of full infant tenant age, be a tenant for life, or have the powers of a tenant for life under this *°^" '^(*^ , , G\GrClS8clDiC act, the powers of a tenant for life under this act may be exercised on his ■\^„ trustees. behalf by the trustees of the settlement, and if there are none, then by such person and in such manner as the Court, on the application of a testamentary or other guardian or next friend of the infant, either generally or in a particular instance, orders. Section 60 appears to comprise within its terms the case of an infant tenant in fee simple, and therefore somewhat to abridge the powers of guardians. By the act of 1881 as read with the act of 1877, they might themselves lease without any application to the Court ; by the act of 1882, an application to the Court would seem to be necessary if the land proposed to be demised should be unsettled, and although guardians are pointed at as being proper persons to make the ajsplication, the leasing power is not to be exercised as a matter of course by them, but only in case of their being directed to exercise it by the Court. In case the land should be settled, and there should be trustees, such trustees could, it is conceived, exercise the leasing powers without any application to the Court. Trustees acting for infants have special powers of management Management conferred upon them bv s. 42 of the Conveyancing Act, 1881. land by Amongst these powers is a power "to make allowances to and tnistees lor . - . . infants. arrangements with tenants and others, and to determine tenancies, and to accept surrenders of leases and tenancies, and generally to deal with the land in a proper and due course of management." Sect. 23. — By or for Married Women. The Married Women's Property Act, 1882, 45 & 46 Vict. c. 75, .ALun-ied repealing and with extensive amendments re-enacting the Married piop?rtv Act, (i) Ante, sect. d. of the act to tenants in tail, and other (k) See s. 58 of the act, giving powers limited owners. 1882. 46 Chap. I. — By ■\vho:m Teems granted. Ch. I. Sec. 2 3. Leases hy or for Married . Women. Act of 1882, not retro- spective. Lease by Husband and AYite at Common Law. Without Deed. By Husband alone. By AVife alone. Women's Property Act, 1870 (J), places married women in respect of making leases of land not subject to marriage settlement as well as in respect of their separate property generally (leases, however, being nowhere specifically mentioned in the act), in the same position as if they were unmarried. This act has abolished the old common law doctrine that a wife had no legal existence apart from her husband. The Act of 1882, however, is not retrospective, but applies only to women married after its commencement [i.e., married after the 1st January, 1883] , except in case of property acquired after its com- mencement, in which case the act has full application. At common law a lease by deed made by the husband and wife of the wife's freeholds, was good during the coverture {m). Upon the death of the husband in the wife's lifetime it became voidable by her ; and might be confirmed by her acceptance of rent becoming due after the husband's death, or the like {n), her executors having power to sue for such rent (o). If the husband survived his wife and became tenant by the curtesy, the lease was good as against him during his life or until the end of the term, which first happened. But if he did not become tenant by the curtesy (not having ever had any issue by his Avife which might by possibility have inherited), the lease, upon the wife's death, became void as against his heir at law. When the husband did not become tenant by the curtesy, he could not distrain or sue for the rent which became due after his wife's death, under a demise made by them both or by him on her behalf (_/j). A lease by husband and wife icithout deed was void as against the surviving wife, for it could not be said to be her lease (g), but it was good during the coverture if the term continued so long (r). If a husband seised of lands in right of his wife made a lease for years by deed, the term did not become void on his death, but onl^' voidable by the entry of the widow (s). Leases made by a wife without the concurrence of her husband and not in pursuance of an express power, were at common law absolutely void, and could not be confirmed (t), and a lessee taking a (Z) The act of 1870 appears to have allowed independent demises of unsettled land under the term "'property," in ss. 1, 7, and 8. (m) Wiscofs case, 2 Co. R. 61 b ; Bac. Abr. tit. Leases (C. 1) ; Toler v. Slater, L. R., 3 Q. B. 42 ; 37 L, J., Q. B. 33. (n) Hcnstcad's case, 5 Co. R. 10 ; Co. Lit. 55 b ; Greenvood v. Txiher, Cro. Jac. 563 ; Doe d. Collins v. WcUcr, 7 T. R. 478 ; 4 R. R. 496 ; Parry v. Hindlc, 2 Taunt. 180 ; 2 Wms. Saund. 180, note (9). (o) Toler v. Slater, L. R., 3 Q. B. 42 ; 37 L. J.. Q. B. 33. (ij) Howe V. Scarrott, 4 H. & N. 723 ; 28 L. J., Ex. 325; Kill v. Saunders, 2 Bing. 112 ; S. C. (in error), 4 B. & C. 529. {q) TFalsal v. Heath, Cro. Eliz. 656 ; Greenwood v. Tyher, Cro. Jac. 564 ; Dyer, 91 b, 146 b ; 2 Wms. Saund. 180 a, n. (r) Bateman v. Allen, Cro. Eliz. 438 ; 2 Co. R. 61 b. (s) Jordan v. Wykes, Cro. Jac. 332 ; Smallman v. Aghorow, Id. 417 ; 3 Bulst. 272 ; Browning and Beeston's case, Plowd. 65. {t) GoodrigJit d. Carter v. StrapJian, Cowp. 201 ; Lofft, 763. Sect. 23. — Leases by or for Married Women. 47 lease from an unmai'ried woman became bound, after tlie marriage, to pay the rent to the husband {it). But a wife might, before marriage, in exercise of an express power, grant valid leases without the concurrence of her husband. As to the wife's leaseholds, at common law a husband might dis- pose of all his wife's interest therein by demise : so he might dispose of the interest in a term which they had jointly {x). He might also dispose of part of his wife's interest : thus he might demise for a part of the term rendering rent, and the rent would go to his executor or administrator, though his wife survived (?/), notwith- standing the reversion survives to the wife (z) ; but as to the residue of the term, whereof the husband made no disposition in his lifetime, the wife, if she survived, was entitled to it : because as to that, the law was left to take eifect, as it would have done for the whole, if he had not prevented it by such his disposition of part (a). If the husband died before the wife, he could not bequeath her chattels real by will (h), but if he survived her they became his own absolute property (c). If the husband, having an interest in his wife's real estate, during their joint lives created a term, out of that interest, the reversion was in him only, and not in his wife also (d). The husband might demise his wife's leaseholds, and thereby confer an immediate interest and possession, or he might underlet for a term to commence even after his death (e) : and it was good though the wife survived (/). The Fines and Eecoveries Abolition Act (3 & 4 Will. 4, c. 74, ss. 77 — 78) allowed leases to be made by wives with their husbands' concurrence, by deeds acknowledged by the wives in manner directed by that act, and the Settled Estates Act, 1877, 40 & 41 Vict. c. 18, replacing a similar provision of the Settled Estates Act, 1856, allowed a husband seised in right of his wife of any settled estates or entitled to unsettled estates as tenant by the curtesy or in right of a wife seised in fee, without any application to the court to demise such lands for not more than 21 years subject to the restrictions and exceptions in that act mentioned. We have already seen (g) the provisions, empowering tenants for life to make leases, which are contained in the important Settled Land Act, 1882. Special provision for the case of a married woman who is a tenant Cii. I. Si:c. 23. Leases by or for Married Women. Before Marriage. Lease by Husband of Wife's Lease- holds. Statute Law prior to Act of 1882. Lease by Married Woman under Settled Land Act, 1882. (w) Tracy v. DaUon, Cro. Jac. 617. {x) Com. Dig. tit. Baron aiid Feme (E. 2). (y) Id. ; Co. Lit. 46 b, 351 a ; 1 Roll. 343, 1. 15 ; Blaxton v. Heath, Toph. 145, (~) Sym's case, Cro. Eliz. 33. («) Bac. Abr. tit. Baron and Feme (C. 2) ; Syni's case, Cro. Eliz. 33. (6) Plowd. 418. (c) Co. Lit. 300 a, 351 a, n. (1). {d) Harcourt v. JFynian, 3 E.\ch. 817. (c) Herhin v. Chard, Poph. 96 ; GriUc V. Locroft, Cro. Eliz. 287. (/) GriUc V. Lncroft, Cro. Eliz. 287 ; V>a.G. Abr. tit. Baron and Feme (C. 2) ; 1 Roll. Abr. 344 ; Herhin v. Chard, Poph. 98. ((/) Ante, sect. 4. 48 Chap. I. — By whom Terms granted. Ch. I.Skc. 23. for life is made by s. 61 of that act, the effect of which is that if the Leases by married woman be entitled for her separate use or under the Married "^ Women.'^'^ Women's Propert}^ Act, 1882, she may exercise the powers of the act " without her husband, but if otherwise, then she and her husband together may exercise those powers, and that a restraint on anticipa- tion in the settlement shall not prevent the exercise of that power. Saving for It is provided expressly by s. 13 of the Married Women's Property Settlement ^^^' *'^^^ nothing in that act shall interfere with any marriage settle- in Married ment made or to be made respecting the property of any married Troperty woman; but the eft'ect of the 61st section of the Settled Land Act, Act, 1882. 1882, appears to be to allow a husband and wife to demise without the intervention of the trustees of their marriage settlement, although the settlement may expressl}^ provide for such intervention. Married As to lease by married woman executrix, see p. 54. Woman Executrix. Sect. 24. — By Lunatics and their Committees. By Idiots and Leases made by idiots, or persons non compotes mentis, are prima Lunatics. facie binding, but may be avoided {li). Generally speaking, a contract made by a lunatic is binding on him, unless it be proved that the other party knew of his insanity and took some unfair advantage of it (/). A lease made during a lucid interval cannot be impeached on the ground of previous or subsequent insanity (A:). By Com- The consolidating Lunacy Act, 1890, 53 & 54 Vict. c. 5, by s. 120 Lunatitis enacts that the judge in lunacy may authorise the committee of a lunatic to "grant leases [including in this term underleases, see s. 341] of any property of the lunatic for building, agricultural, or other purposes : "grant leases of minerals forming part of the lunatic's proj)erty, whether the same have been already worked or not, and either with or without the surface or other land : " Surrender any lease and accept a new lease : "Accept a surrender of any lease and grant a new lease : "Execute any power of leasing vested in a lunatic having a limited estate onl}' in the property over which the power extends : " Perform any contract relating to the property of the lunatic entered into by the lunatic before his lunacy : " Surrender, assign or otherwise dispose of with or without consideration any onerous property belonging to the lunatic." (/(.) Co. Lit. 247 a ; Beverley's case, 4 309 ; 10 Exch.184 ; 23 L. J., Ex. 94, 326 ; Co. R. 123 ; Yates v. Bocn, 2 Stra. 1104. Elhott v. Incc, 7 De G., M. & G. 475. {i) Brown v. Joddrcll, 1 Moo. & M. (^-) 1 Dow, Pari. Cas. 177 ; Fry, ss. 161, 105 ; MoUon v. Camroux, 2 Exch. 487 ; 4 162. Exch. 17 ; Beavan v. M'Donnell, 9 Exch. Sect. 24. — By Lunatics and their Committees. 49 B_v s. 121 a renewed lease is to be to the same use as the Ch.I. Skc. 24. surrendered lease was. By s. 122 the power under the act extends Leases „,.,,,'.. ... , by Lunatics to property ol which the lunatic is tenant m tail, every lease under aud their the act binds the issue of the lunatic and all persons entitled in ^-''o>"»"(tees. remainder, &c., and " every person to whom from time to time the Extent of reversion expectant upon the lease belongs upon the death of the Power." lunatic shall have the same rights and remedies against the lessee, his executors, administrators, and assigns, as the lunatic or his com- mittee would have had." B}' sub-s. 2 of s. 122, "leases under the act" may be for such Rent, Term number of lives or such term of years, at such rent and ro^-alties, ^^"iits*'^^' and subject to such reservations, covenants and conditions as the judge approves." It seems to be the practice in eveiy case, first to obtain the approval of a master in lunacy to the proposed lease, and then an order of the Lords Justices confirming the master's report, and directing the lease, as settled and approved of by the master, to be executed by the com- mittee, upon the lessee executing a counterpart. In JVf/nne, In re (/), Wynne, In re however, eighteen months' possession under an agreement for a lease with the agent of the committee was held sufficient to entitle the tenant to specific performance, although the sanction of the master in lunacy had not been applied for. Where the committee of a lunatic tenant for life j)etitioned the Lunatic Court for power to grant a repairing lease for 99 years, it was held jjx^^^ that new trustees (there not being any trustees of the will under w^hich the propert}' was held) ought to be appointed and served with notice of the petition {in). The ordinarj' form of execution would seem to be the execution Mo.le of by the lunatic by his committees, but an execution by the committees '^^^^ ^^^' themselves is sufficient, if the lunatic be made a party to the lease (u). By s. 6 of 15 & 16 Vict. c. -48, receivers of the estates of lunatics Rejiairs and might be directed by order to make repairs and improvements of or -^^l"^^'^"«^'^=s- upon the land of lunatics, or make allowance out of the lunatic's income to the tenant executing the same. This enactment is repealed b}' the Lunacy Act, 1890, and sections 117 and 118, which appear to be substituted for it, do not seem to contemplate an}' execution of repairs by a tenant otherwise than in pursuance of his contract of tenancy. {I) Wynne, In re, L. E., 7 Cli. 229 ; 26 19, atiirniiug tlie decision of the Court of L. T. 406 ; 20 W. R. 348. Appeal, and reversing that of Hall, V.-C, (m) iic 7'«!/Zor, 49 L. T. 420. 14 Ch. D. 249; 49 L. J., Ch. 636; {n) Latvrie v. Lees, L. R., 7 App. Cas. 42 L. T. 4S5 ; 28 AV. R. 779. L.T. 50 Chap. I. — By who:m Terms granted. Ch. I. Sec. 25. Leases by Persons under Duress or Intoxicated. By Persons under Duress. By Persons in a State of Intoxication. Sect. 25. — By Persons under Duress or Intoxicated. All deeds, bonds or grants made by persons under duress are void- able by the parties themselves that make them, or others that have their estates, &c. Duress of imprisonment is defined to be where one is manifestly imprisoned or restrained of his liberty contrary to law, until he executes a bond or deed to another (o). The imprison- ment must be illegal, otherwise there is no duress ( jj ). Duress of goods (especially under a distress) is not sufficient (q). Intoxication is a good defence in an action on a deed, lease or grant, or an agreement, provided the part}" was in such a state of intoxication as not to know what he was doing (r). But the con- tract is voidable only and not void, and therefore may be ratified when the party becomes sober (.s). If through the contrivance and management of the party obtaining the deed the grantor is thrown into intoxication for the purpose of prevailing on him to execute the deed, relief may be administered, on the ground of fraud {t), by the Chancery Division of the High Court (»)• Sect. 26. — By Convicts. Felons. At common law, on a conviction for felony, real estate became for- feited to the crown, but not without attainder (x). Under a demise, therefore, by a felon after attainder, the lessee had a good title against all but the crown and the lord of whom the land was held (y) : and the crown was said to be entitled to hold during the felon's life {z). The crown's right of entr}" might be exercised or enforced without any inquisition being taken or office being found, or actual re-entry (a). An assignment by a felon just before trial without consideration or value, was void as against the crown (h). But a bona fide assignment made before the day of trial (even after the commission day), in consideration of a pre-existent debt or other good consideration, was valid (c). (o) Knight and Norton s Case, 3 Leon. 239, {j>) 2 Inst. 482 ; 11 Q. B. 117. {q) Skeatc v. Bealc, 11 A. & E. 983 ; Gulliver v. Cozens, 1 C. B. 788 ; Kearns v. Durcll, 6 C. B. 596 ; 6 D. & L. -:.57. (r) Gore v. Gibson, 13 M. & W. 623 ; Pitt V. Smith, 3 Camp. 34 ; 13 R. R. 741 ; BiMer v. Mulvihill, 1 Bligh, 137. (s) Matthews v. Baxter, L. R., 8 Ex. 132 ; 42 L. J., Ex. 73. (t) Naglc V. Baylor, 3 Dni. & W. 60 ; Say V. Barwid'. IV. & B. 195 ; Butler v. MidviUll, 1 Blish, 127. («) .Judicature Act, 1873, s. 34, sub-s. 3. Ix) Cole Ejec. 573. (y) Doc d. Evans or Griffiths v. Prit- charcl, 5 B. & Ad. 765 ; Cole Ejec. 573. {z) Chamh. L. & T. 46. (a) 22 & 23 Vict. c. 21, s. 25. (6) Morewood v. Wilks, 6 C. & P. 144 ; Shaio V. Bran, 1 Stark. R. 319 ; 18 R. R. 772; Li re Saunders, 4 GifF. 179; 32 L. J., Ch. 224. (c) Perkins v. Bradley, 1 Hare, 219 ; TVhitaker v. Wishey, 12 C. B. 44 ; Choivne V. Baylis, 31 Beav. 351. Sect. 26. — By Convicts. 51 The property of persons who have been convicted of treason or Ch. I. Sec. 26. felony is now entirely regulated by an act passed on the 4th July, Leases 1870 (33 & 34 Vict. c. 23), by which forfeiture to the crown is ^ ^''"''"'*- abolished. By sect. 1 of this act " no confession, verdict, inquest, pefon's Pre- conviction or iudgment of or for anv treason or felony or felo de se, P'^^'^J' under " 33 i!c 34 Vict shall cause any attainder or corruption of blood, or any forfeiture c. 23. or escheat." B}^ sect. 9 the crown may commit the custody and management of the jjroperty of any convict, i.e. "any person against whom judgment of death or penal servitude shall have been pronounced or recorded upon any charge of treason or felony " {d), to an administrator, upon whose appointment " all the real and per- sonal propertj', including choses in action, to which the convict was at the time of his conviction, or shall afterwards while he shall continue subject to the operation of the act, become or be entitled, shall vest in such administrator for all the estate and interest of such convict therein " (sect. 10). By sect. 8 the convict is disabled to sue or alienate property, and by sect. 12 " the administrator shall have absolute power to let, mortgage, sell, convey and transfer any part of such property as to him shall seem fit." By sect. 18 the property reverts to the convict or his representatives on the com- pletion of his sentence, pardon or death. By sect. 21 an interim curator may, if there be no administrator, be appointed by justices ; and by sect. 24 such interim curator may bring and defend actions, and may "receive and give legal discharges for all rents," kc. Property acquired by a convict " during the time which he shall be lawfully at large under licence " is, by sect. 30, exempted from the operation of the act. A lease made by an outlaw before an inquisition taken will prevent Outlaws. the title of the crown, if it be made bona fide and upon good con- sideration, but not if it be in trust for the outlaw only (c). The grant of a person outlawed in a personal action was good against all but the crown (/) ; but outlawry in civil proceedings, which had long been obsolete, was abolished by the Civil Procedure Acts Ptepeal Act, 1879 (42 & 43 Vict. c. 59). The Act of 1870, above mentioned (see sect. 1), does not affect "the law of forfeiture conse- quent upon outlawry in criminal proceedings." {d) Sect. 6. Persons not comprised (c) Att.-Gen. v. Freeman, Hardr. 101 ; within this definition are exempted from HammomVs case, Id, 176 ; 2 Roll. Abr. forfeiture by the act, but are otherwise 808, pi. 7 ; King d. Foe v. Ball, Ridg. unaffected bj' its provisions relating to the Lap. k Scho. 94. aduduistration of property. (/) Shop. Touch. 232. 4—2 52 Chap. I. — By whom Terms granted. Ch. I. Sec. 27. Leases ^ by Trustees of Bankrupts. Sect. 27. — By Trustees of Bankrupts. A trustee of a bankrupt seised in fee may demise to the same extent as the bankrupt could. A trustee of a bankrupt lessee, if he do not disclaim the lease, and if the lease contain no clause of forfeiture on bankruptcy of the lessee, has a similar power {g). A lease is personal property. Vesting of Reversion in Executors, by Land Transfer Act, 1897. Lease by Executor, Option of Purchase cannot be given. Sect. 28. — By Executors and Administrators. A lease for a term of years, however long, is personal property in the hands of the lessee by the law of England, and as such vests in the executor. In Scotland, however, it is otherwise. By the law of Scotland a lease vests in the heir of the lessee at his death (h). At common law all real estate vested in the heir-at-law, co- heiresses, or devisees, as the case might be. But the Land Transfer Act, 1897, 60 & 61 Vict. c. 65, in the case of death after the com- mencement of that act on 1st January, 1898, vests the real estate of the deceased (unless it be copyhold) in his executors or adminis- trators, who hold it in trust for the person as heir-at-law or devisee beneficially entitled thereto, to whom they may convey it at any time after the death, and may be ordered "by the court if it thinks fit " to convey it within one year after the death. Executors and administrators may dispose absolutely of terms of years vested in them in right of their testators or intestates, or may lease the same for any fewer number of years ; and the rents reserved on such leases are assets in their hands, and go in a course of administration (?), but this is an exceptional mode of dealing with the assets, and those who take a title in that way must take it subject to the question whether it was the best mode of administering the assets (k). Executors should take care not to enter into any informal agi'eement for a lease which cannot be enforced : otherwise they may perhaps be charged with any loss, as arising from a wilful default (/). Executors and administrators, it being their duty to realize within a reasonable time, may not grant a sub-lease with option of purchase within a fixed time. If they do, the next of kin can prevent the option being exercised. This was held by the Court of Appeal in the very clear but hard case of Oceanic Steam Navigation Co. v. Sutherhury (m), in which an administrator possessed of a term of (r/) See Ch. VII., Sect. 8, post. (h) See Bain v. Brand, L. R., 1 App. Ca. 762. (i) Bac. Abr. tit. Leases (I. 7). (^•) Per Jessel, M.R., in Oceanic, etc., Co. V. Sutherhury, 16 Ch. D. at p. 243. (Z) Conolly v. Conolhj, 17 Ir. Ch. R. 208, M. R. (m) 16 Ch. D. 2.36; 50 L. J., Ch- 308 ; 43 L. T. 743 ; 29 W. R. 236. Sect. 28. — Leases by Executors and Administrators. 53 75 years granted a sub-lease for 21 years, with option of purchase Ch. I. Sec. 28. Leases by Uxecutors. within the first 7 years, although the whole transaction was for the , Leases benefit of the estate, and the sub-lessees had expended large sums in building in reliance on their supposed power to purchase. An executor may demise before probate, because his appointment, Lease before estate, and power are derived from the will, of which the probate 1'™°^^^- is merely evidence (n) ; but an administrator cannot make a lease until he has obtained letters of administration (o). A lease b}' one of several executors is as efficacious as their joint Lease by oue demise {p), although it purport to be the grant of all (g) ; and the ° ^^^^la . same rule applies to administrators (?•) . It seems that if three executors demise to one of them at a fixed rent, such rent may be distrained for {s). Previous to a party taking a lease from an executor, he should Assent to ascertain whether the property has been specifically bequeathed by Bequest of the will ; and if so, whether the executor has assented to such Lease by i^xccu.'tors* bequest, for if so his right to grant the lease is gone, and the legal interest in the property is vested in the legatee ; and consequently, as the executor has nothing to grant, the lease will be void, and the legatee may maintain ejectment (0- It is well settled, however, that assent to a bequest for life of a lease is an assent to the bequest over {u). If a lease be specifically bequeathed to an executor for his own ssentof use, his assent to the bequest is still necessary, and if his acts are specific referable to his character of executor, they are no evidence of Bequest to assent {x), which must be shown by some act referable to his character of beneficial owner, as by a disposition of the lease in his own will (2/). Where a party possessed of a term as administrator makes a lease and appoints an executor and dies, his executor is entitled to the rent, and not the administrator de bonis non of the intestate {z) . The husband of a woman who is an executrix has at common law Leases by an a joint interest with her in all the efi:'ects of the deceased ; and is j^'.^ Married enabled to assume the whole administration, and to act in it to all "^^'oman. purposes without her consent ; but the wife cannot do any act as (/(.) Roe d. Bciulall v. Summerset, 2 W. Young v. Holmes, 1 Str. 70 ; Boc d. Lord Blae. 692 ; Roll. Abr. tit. Executors (A.). &elc v. Guy, 3 East, 120 ; 6 (o) Wankford v. Wankford, 1 Salk. 301 ; K. K. 563 ; JvhnsoiL v. Jranvick, 17 C. B. Hudson V. Hudson, 1 Atk. 461. 516 ; Pcnton v. Clegg, 9 Exch. 680 ; Doed. [p) Panncl v. Fenn, Cro. Eliz. 347 ; Sturcjess v. Tachcll, 3 B. & Ad. 675. Doc d. Hayes v. Sturges, 7 Taunt. 217 ; [u) Stevenson v. Mayor of Liverpool, 17 R. R. 491, L. R., 10 Q. B. at p. 84. {q) Simpson v. Gutteridge, 1 Madd. 616 ; (.'•) Doe d. Hayes v. Sturges, 7 Tauut. 16 R. R. 276. 717 ; 17 R. R. 491. (r) Jacomb v. Harwood, 2 Ves. Sen. 265. (y) Fenton v. Clcgg, 9 Exch. 680. [s) Cowpcr V. Fletcher, 6 B. iSc S. 464 ; [z) Drew v. Bayly, 2 Lev. 100 ; Norton 34 L. J., Q. B. 187. v. Harvey, 1 A'entr. 259. (0 Paramour v. Yardlcy, Plowd. 539 ; 54 Chap. I.— By whom Terms granted. Leases by Executors. Married Woman Executrix Ch. I. Sec. 28. executrix or administratrix without her husband's concurrence. A demise b}' her alone, therefore, cannot at common law be supported ; and in all leases made in respect of such executorship and adminis- tration, the husband must be the demising party (a). By the 18th section of the Married Women's Property Act, 1882, a married woman " who is an executrix or administratrix, alone or jointly with an}' other person, of the' estate of any deceased person, or trustees, alone or jomtly, of property subject to any trust, may sue and be sued without her husband, as if she were a feme sole." This section gives no express power to demise alone, and could not, it is con- ceived, be construed as giving such a power impliedly. The 24th section enacts that " a husband shall not be subject to any liabilities by reason of any breach of trust or devastavit committed by any married woman being a trustee or executrix or administratrix either before or after her marriage unless he has acted or intermeddled in the trust or administration." The result seems to be that if the husband demises as at common law he thereby " acts or inter- meddles" and forfeits the indemnity of sect. 24. Therefore, unless the words of sect. 1, sub-sect. 1, which enable the married woman to dispose of any real or personal property as her separate propertv, can be taken to extend to property held by her as executrix, and so give her power to demise it, the act appears to give no additional powers of leasing to a married woman executrix. Leases hefoir. the Mortj^atfe. Ejectment by Mortgagor. Sect. 29. — By Mortgagors and Mortgagees. (a) Generally. Leases granted by a mortgagor before the mortgage are valid as against the mortgagee, who is only an assignee of the reversion and its incidents (h). The tenants under such leases may safely continue to paj' their rents to the mortgagor until they receive notice of the mortgage, and are requested to pay their rent to the mortgagee (c). Before the Judicature Act, the mortgagor having assigned his reversion by the mortgage, could not eject the tenant for a for- feiture {(l) ; but by sect. 25, sub-sect. 5, of the Judicature Act, 1873: — " A mortgagor entitled for the time being to the possession or the receipt of the rents and profits of any land, as to which no notice of his intention to take possession or to enter into the receipt of the rents and profits thereof shall have been given by the mortgagee, may sue for such possession, or for the recovery of such rents or profits, or to prevent (c) 4 Am (a) Cham, on Leases, 35 ; Arnold v. Bidgoocl, Cro. Jac. 318 ; Thrustout v. Lcvick V. Copinn, 2 W. Blac. 801. {b) Rogers v. Himiphrcys, _ 4 A. & E. 299, 313 ; Ccle Ejec. 473. . 16, s. 10 ; Cooh v. Moylun, 1 Exch. 67 ; 5 D. & L. 701 ; Trent v. Hunt, 9 Exch. 14. {d) Doe d. Marriott v. Edwards, 5 B. & Ad. 1065. Sect. 29. — Leases jjy Mortgagors and Mortgagees. 55 or recover damages in respect of any trespass or other wrong relative thereto, in his own name only, vinless the cause of action arises upon a lease or other contract made by him jointly with any other person." Upon giving notice of his mortgage, and requesting the rent to be paid to him, the mortgagee becomes entitled to all the arrears of rent which became due after his mortgage, and which then remain unpaid, and also to all subsequent rent (e). Where a mortgagor after execution of an agreement for a lease under which the tenant has entered, mortgages the premises, the mortgagee may maintain use and occupation for the enjoyment of them subsequently to the mortgage, and notice thereof (/"). Where a mortgage was made after a letting from year to year, and subse- quently the mortgagor, on making some improvements, agreed with the tenant for an increased rent ; it was held that the mortgagee, after notice to the tenant of the mortgage, might recover, in an action for use and occupation, arrears of the improved rent due at the time of the notice as well as subsequent accruing rent (f/). Where a mortgage was made after a letting, and it was subsequently arranged between the' mortgagor, the mortgagee, and the tenant, that the latter should pay the interest to the mortgagee, and the remainder of his rent to the mortgagor ; it was held that after this arrangement the tenant was not justified, after a mere notice so to do, in paying the whole rent to the mortgagee (/<). Ch. I. Sf.c. 29. Leases by Mortgagors and Mortgagees. iloitgagee entitled to Rent on notice of iloitgage. Moss V, Gallimorc. With regard to leases after a mortgage, the common law rule was, that neither mortgagor nor mortgagee could make a good lease alone ; for the mortgagor's lease was bad in law as against the mortgagee, wherefore the mortgagee could evict the lessee as a trespasser (/) ; and the mortgagee's lease was bad in equity as against the mortgagor, wherefore the mortgagor could, by redeeming the mortgage, avoid the lease (A:). As therefore, neither mortgagor nor mortgagee could make a valid lease, it became usual for them both to concur (/), and for mortgage deeds to contain special leasing powers by one or other, or botli {m). Moreover two impoj'tant statutes, so far as they apply, have validated the leases of mortgagors though made after the mortgage. These statutes are the Conveyancing Act, 1881, which applies to Le.ises after tlie ilortgage. Common law rule that Mortgagor's lease is invalid as against lilortgagee. Statutory Amendments. (c) 4 Ann. o. 16, s. lu : Moss v. Galli- morc, 1 Doug. 279 ; 1 Smith, L. C. ; Pojw V. Brujgs, 9 Ji. k, C. 245 ; Eoiiers v. Humphreys, 4 A. & E. 299, 313. (/) Eaivson v. Eickc, 7 A. & E. 451. See Form of Notice, post, Appendix C, Kos. 15, 16. ((/) Burrowcs v. Gradin, 1 D. & L. 213. (/«) IVhitmorc v. Walker, 2 C. & K. 615. (0 Kccch V. Hall, 1 Doug. 21 ; 1 Sm. L. C. ; Thunder d. //V,avV v. Belcher, 3 East, 449. (A) Franklinski v. Ball, 34 L. J., Ch. 153. {I) See Carpenter v. Parker, 3 C. !>., X. S. 2U6. (?h) See post, p. IGO. 56 Chap. I. — By whom Terms granted. Cii.I.Sec.29. Leases hy Mortgagors and Mortgagees. Partial validation of Mortf^agor's Lease by Conveyancing Act. Partial validation of Mortgagor's Lease by Tenants' Compensation Act. Lease after mortgage be- fore Convey- ancing Act, or if Convey- ancing Act exclnded. Leases by Estoppel. all kinds of holdings, and the Tenants' Compensation Act, 1890, which applies to agricultural, &c. holdings onl3% The 18th section of the Conveyancing Act, 1881 (44 & 45 Vict, c. 41), has ivitli regard to leases made after the commencement of that Act [1st of Jan. 1882], and so far as a contrary intention is not ex- jyressed by both parties in the mortgage deed, abolished the common law rule ; has given to either mortgagor or mortgagee, if in possession, ample powers of leasing ; and has rendered joint powers of leasing unnecessar}' for the future. See p. 160, j^ost. The Tenants' Compensation Act, 1890, 53 & 54 Vict. c. 57, has with regard to leases of land, allotments, or cottage gardens, also abolished the common law rule. By this Act where a person occu- pies land under a contract of tenanc}^ with the mortgagor, whether made before or after the Act, which is not binding on the mortgagee, he is (1) against a mortgagee taking possession entitled to any com- pensation for crops, &c. which is or would be due to him from the mortgagor, and (2) if the tenancy be from year to year or for not more than 21 years before being deprived of possession otherwise than in accordance with the contract of tenancy, he is entitled to a six months' notice to quit. See more fully Ch. XX., sect. 7, as to comi^ensation, and Ch. VIII., sect. 7, as to notice to quit, post. The 18th section of the Conveyancing Act being neither retrospec- tive nor compulsory, the decisions applicable to mortgages before the act are still of very great importance, especially as it appears to have become usual for mortgagees to insist upon the exclusion of sub-s. (1) which confers the leasing power upon the mortgagor {>(). These cases therefore must now be stated, so far as they affect the relation of landlord and tenant, the reader being referred to other works for the cases affecting the relations of mortgagor and mortgagee (o). If then the mortgage bear date before the act, or if the 18th section of the act be excluded, and there be no express leasing power re- served to the mortgagor, the result of a lease by the mortgagor alone is that the tenant will be thereb}^ estopped(p) during his possession under the lease from disputing the mortgagor's right to demise (q), and apparently, upon the general principle tbat an estoppel binds both parties (/■), the mortgagor landlord will also be liable by estoppel upon his covenant for quiet enjoyment upon his ejectment by the mortgagee (s). {n^ Hood and Challis on the Convey- ancing Acts, p. 111. (o) See Coote on JMortgages ; Fisher on Mortgages. (2^) See TFcbh v. Austin, 7 M. & G. 701. (3) Alchornc v. Gommc, 2 Bing. 54 ; Morton v. Woods, L. E., 3 Q. B. 658 ; 37 L. J., Q. B. 242 ; Loe d. Leaning v. Skirrou; 7 A. & E. 157. (r) Co. Litt. 352 (a). [s) Hartcup v. Bell, C. & E. 19, per Manisty, J., aff. both by Div. Conrt and C. A. {lb.). This is an exception to the general effect of the qualijied covenant for quiet enjoyment : see Ch. XVIL, Sect. 8 (b), post. Sect. 29. — Leases by Mortgagors and Mortgagees, 57 But although the mortgagee may treat the tenants of the mortgagor Ch. I. Sec. 29. as trespassers in the case of a lease made after the mortgage, he Leases by cannot distrain or sue lor rent, or lor use and occupation (0, unless mid a new tenancy has been created as between him and the tenant in ^Lortgagees. possession, by an attornment or otherwise in). A mere notice of ^loi'tgagee '■ ■ cannot dis- the mortgage, with a request to the tenant to pay his rent to the train or sue mortgagee (not assented to bv the tenant), is insufficient to create **^^"/^'^"*' ^ ° ^ ' ' ^ unless new between them the relation of landlord and tenant (.i*)) ^i^d the mere Tenancy fact of the tenant remaining in possession after such a notice is not 1 1 1 n Rogers v. evidence of an agreement that he shall become tenant to the mort- Humphreys. gagee Q/). If the notice be assented to and complied with by the tenant, he becomes tenant from year to year upon an agreement for a lease with the mortgagor, and can, by giving notice to quit, prevent the mortgagee from enforcing specific performance of the agreement {z) . AYliere a tenant, after notice given to him of the mortgage, pays rent to the mortgagee under a distress, it does not constitute a tenancy by relation back, so as to entitle the mortgagee to distrain for a previous half-year's rent (a) . But if the tenant expressly attorns as from a previous day at a fixed rent, all such rent, when in arrear, ma}' be distrained for(^). Where a mortgagee gave notice of the mortgage to a tenant of the mortgagor, and required him to pay all rent due and to become due in respect of the premises, and the tenant acquiesced, it was held to be evidence from which a jury might infer a yearly tenancy, as between the mortgagee and the tenant (c). The result of the cases seems to be that a bare notice b}- the mort- gagee to a subsequent tenant of the mortgagor to pay him the rent (not assented to by the tenant) will not create an}^ new tenancy ; but that a notice acquiesced in by payment of rent or otherwise is evidence from which a jury may infer a new contract of tenauc}* from ,year to year as between the mortgagee and the tenant in possession (d). The mere receipt b}'^ the mortgagee from the mortgagor of interest due on the mortgage will not preclude the mortgagee from ejecting {t) Rogers v. Humphreys, 4 A. & E. 299, Hickman v. Machin, 4 H. & N. 716. 313 ; Partington v. Woodcock, 6 A. & E. {y) Toicerson v. Jackson, [1891] 2 Q. B. «90 ; Evam v. Elliott, 9 A. & E. 342 ; 381 : 61 L. J., Q. B. 36 ; 65 L. T. 332 ; Turner v. Cameron's C'oalbrook iifcam 40 "W. K. 37, C. A. Canal Co., 5 Exch. 932 ; Lichfield v. (z) Corbctt v. Hoirdcn, 25 Cli. D. Ready, 5 Exch. 939. 678 : 54 L. .T., Ch. 109 ; 50 L. T. 470 ; ((() Brown v. Storey, 1 M. k G. 117, 32 W. E. 667, C. A. 126 ; Roberts v. Hayvard, 3 C. & P. 432 ; {a) Evans v. Elliott, 9 A. & E. 342. .Doe d. Whitakcr v. Hales, 7 Bing. 322 ; [b) Gladman v. I'lumer, 15 L. J., Q. B. Doe d. Hughes v. Bucknell, 8 C. & P. 566 ; 80 ; 10 Jur. 109. Doe d. Higginbotham V. Barton, 11 A. kK. (c) Broicn v. Storey, 1 M. & G. 117; 307 ; Docd. Bowman v. Lewis, 13 M.& W. Hughes v. Bucknell, 8 C. & P. 566. 241. (d) Powscley v. Blackman, Cro. Jac. (.r) Rogers v. Humphreys, 4 A. & E. 299 ; 6r>9 ; Rogers v. Humphreys, 4 A. & E. Partington v. Woodcock, 6 A. & E. 690 ; 299 ; Doc d. Higginbotham v. Barton, 11 Er.ans v. Elliott, 9 A. & E. 342 ; Doc d. A. & E. 307 : Hickman v. Machin, 21 Hicjejinhol.ham v. Barton, 11 A. k E. 307 ; L. J., Ex. 310. 58 Chap. I. — By whom Teems gkanted. Ch. I. Sec. 29. Leases hy Mortgagors and Mortgagee^:. Letting of famished House by Mortgagor. Eight of tenant of mortgagor to reileem. the mortgagor's tenant (), provided the inquisition be valid, but not Leases bij Tenants hi/ otherwise {q). He cannot eject a previous tenant until after his term Elegit, S;c. expires or becomes forfeited, or is determined by notice to quit or otherwise (r). Sect. 31. — By Eeceivers. Receivers appointed by the High Court cannot demise without the Leases by authority and direction of the court (s). They are bound to obtain (^'^aucgr^! "^ the best terms (t). A lease under seal granted by a receiver in a cause wherein A. B. is plaintifi" and C. D. is defendant, for a term of fourteen years, and reserving rent to the receiver, and to any future receiver in the cause, would create a tenancy by estoppel as between him and the lessee, and give a right to distrain for rent («). An attornment to a receiver creates a tendenc}' by estoppel between Effect of the tenant and the receiver, wdiich the court applies to the purpose of ^tto"i"^eiit^ collecting and securing the rents till a decree can be j)ronounced, taking care that the tenant shall be protected, both while the receiver continues to act, and when by the authority of the court he is withdrawn (x). It does not operate as an attornment to the parties interested so as to enable any of them to distrain, for thereby the object of the court in appointing the receiver would often be effectually defeated (ij) . It may be mentioned here, that a receiver of rents from sub-tenants Appointment may be appointed pending an action by a landlord for recovery of pyndincr land (z). action of '■ ejectment by Landlord. Sect. 32. — Bi/ Lords of Manors and Copyholders. Every one having a lawful interest in a manor may make voluntary By the Lord, grants of copyhold escheated or come to his hands, as well as admittances, according to the custom of the manor, rendering the ancient rents and services, which bind him who has the inheritance ((0- But voluntary grants of copyhold, b}^ the lord, can only be made according to the custom of the manor (b). Where there is no custom {p) Rainshottom v. Buckhurst, 2 M. & S. (,).•) Hughes v. Hughes, 1 Ves. juu. 161 ; 565 ; 15 R. R. 352 ; Lloyd v. Davies, 2 Evems \ . Mathias, 7 E. k B. 602 ; 26 L. J., Exch. 103. Q. B. 309 ; Jolly v. Arbuthnot, 4 Pe G. & J. {q) Arnold v. Ridge, 13 C. B. 745. 224 ; 28 L. J., Ch. 547 ; Ames v. Birkcn- (r) Doe d. Ba Costa v. Wharton, 8 T. R. head Docks Trustees, 20 Beav. 332 ; 24 2 ; Cole Ejec. 566. L. J., Ch. 540. {s) Morris v. Elme, 1 Ves. jnn. 139. {y) Evans v. Mathias, 7 E. & B. 590 ; A receiver may be appointed by any see TVhite v. Small, 22 Beav. 72 ; 26 Id. Divi.sion of the High Court (Judicature 191 ; Barton v. Mock, 22 Beav. 81. Act, 1873, .s. 24). (c) Gwatkin v. Bird, 52 L. .T., Q. B. (<) Wynne v. Ld. Ncwhorough, 1 Ves. 262. jun. 164. {a) Badger v. Forde, 3 B. & A. 153. ^ (v) Dancer v. Hastings, 4 Bing. 2 ; cited (b) Ile.v v. Wclby. 2 M. & S. 504. inMortonv. Woods,!,. R., 3 Q. B. 658, 668. 64 Chap. I. — By whom Terms granted. Ch. I. Sec. 32. Leases by Lords of Manors and Copyholders. Leases of not more than one-twelfth of waste. By Copy- holders. Forfeiture, if lease without licence. for that purpose the h:»rd of a manor cannot make a new grant of copyhold (c). The ancient rent and services must he reserved; any alteration therein will make the grant void as against the lord's successor {d). By the Inclosure Act, 1773, 13 Geo. 3, c. 81 (c), s. 15, lords of manors, with the consent of three-fourths of the commoners, may demise for not more than four years any part of the wastes and commons, not exceeding one-twelfth part, for the best rent that can be obtained by auction, the same to be applied in draining, fencing and improving the residue. So by custom the lord may have power to demise parcels of the waste (/), but a custom for the lord to grant leases of the waste, without restriction, is bad, as amounting to a power of destroying the right of common altogether (f/). A copyhold, to which a right of common was annexed, having b_y the custom of the manor vested in the lord by forfeiture, and he having regranted it as a copyhold tenement with the appurtenances ; it was held, that having always continued demisable whilst in the hands of the lord, it was a customar}^ tenement, and as such, was entitled to the right of common {h). A copyholder cannot make a lease for more than one year without a licence or by special custom, without thereby incurring a forfeiture of his estate {%). In most manors a copyholder may demise for one year or less without any licence of the lord (A) ; but this is b}' custom of the manor (Z). K lease for one year, and so from j-ear to year during ten j'ears, being in effect a lease for ten years, is a forfeiture ; but otherwise of a lease for one year, with a covenant for the holding it for a longer time at the will of the lessor (?n). A lease for one year and so from year to year for the life of the lessee, being a lease for two years at least, is not good {n). So if it be for a year except one day, and so on from year to year, excepting one day in every year ; for it is a certain lease for two years excepting two days, which is a lease in effect for more than one year ; and although there be the intermission of a day, yet this is a mere evasion and not material (o). So if a copyholder make three leases together, each to (c) Rex V. Hornchinxh, 2 B. & A. 189. {d) Doe d. Rayncr v. Strickland, 2 Q. B. 792. (t) See Chitty's Statutes, tit. "Inclo- sure." (/) Ld. Korthiuick V. Stanway, 3 Bos. & P. 346. (f/) Badger v. Fordc, 3 B. & A. 153 ; Arlett V. Ellis, 7 B. & C. 346 ; but see Lascelles v. Lord Onslow, 36 L. T. 459. {h) Badger v. Fmxle, .supra. (i) Scriven, 329, 330 (5th ed.) ; Anon., Jloor. 184 ; East v. Harding, Cro. Eliz. 498 ; Robbins's Settled Laud Statutes, citing Doe v. Bousjield, 6 Q. B. 492. (k) Scriven Cop. 329 (5th ed.) ; Cole Ejec. 627 ; Frosel v. Welsh, Cro. Jac. 403 ; Matthews v. Whetton, Cro. Car. 233 ; Goodivin v. Longhurst, Cro. Eliz. 535 ; Erish V. Rives, Id. 717. (Z) Turner v. Hodges, Hetlev, 126 ; Lit. Eep. 233 ; Cole Ejec. 627. {m) Lady Montague's case, Cro. Jac. 301 ; Cole Ejec. 615. (7i,) Luttrell V. JVeston, Cro. Jac. 308 ; Cole Ejec. 34, 442. (o) Lady Montague^s case, Cro. Jac. 301. Sect. 32. — By Lords of Manors and Copyholders. 65 commence within two days after the expiration of the other, it is a mere evasion of the custom, and therefore not good(jj). So a lease for more than one year, though intended onh' as a collateral security, is bad, if it amounts to a present demise (q). A lease for years without licence from the lord, is not good without a special custom, though the lease be made by parole, or be not in possession, but to com- mence in futuro ; and such lease is a forfeiture if it be a good lease as between the parties (>•)• By special custom, a copyholder may make leases for more than one year or for life, and a certain number of years after, without licence from the lord (.s). A custom for copj-holders in fee to lease for any number of years without licence, on condition of the term ceasing on the lessor's death, is a good custom (t). The powers granted b}^ the Settled Estates Act (u), include powers to the lords of settled manors to give licences to their copyhold and customary tenants to grant leases of lands held b}' them of such manors, to the same extent, and for the same purposes, as leases may be granted of freehold heredita- ments under the act (x). The granting of a licence is entirely in the discretion of the lord, and the court will not compel him to grant a licence, even where there is a custom to pa}'^ a certain sum for every 3'ear of the term (y). A copyholder having licence to demise, ought not to exceed the licence, otherwise the lease is bad (z) : but he may lease for fewer years than his licence allows (a). If the lord licence his copj'holder for life, to make a lease for three 3'ears, if he so long live, a lease for three years absolutely is good [h) ; because a lease b}' a copyholder for life determines by his death. If the lord licence upon condition, the condition is void : for he gives nothing, but only dispenses with the forfeiture (c). A tenant at will of a manor cannot grant a copy- holder a licence to alien for years ; and if a tenant for life of a manor grants a licence to alien for years, it determines at his death (d). A lease without licence, and contrary to the custom, in order to amount to a forfeiture, must be a complete demise ; therefore, wheie a copyholder demised his copyhold for a year, and agreed to grant a further term of twenty-one years, provided he could obtain of his lord a licence for that purpose, the licence was held to be a condition Cii.I. Sec.32. Leases by Lords of Manors and Copyholders. Under Special Custom to lease. Powers of I.ovd to gi-ant Licences. Under Licence from the Lord. ■\Vliat Lease by a Co|iv- holdur is a Forfeiture. (2?) Matlhcicsv. W Mton, Cro. Cin: 2Z3. (q) Morris v. Twist, 2 Mod. 79. (r) Com. Dig. tit. Copyhold (K. 3). (s) Scriven Cop. 330 (5th ed.). (t) Turner v. Hodges, Hutt. 101. (m) Ante, Ch. L, sect. 4. (x-) Settled Land Act, 1882, s. 14. (y) Reg. v. Hale, 9 A. ^: E. 339. {z) Haddon v. Arroicsmith, Owen, 73 ; Cro. Eliz. 461 ; Jackson v. Neal, Cro. Eliz. 394; Scriven Cop. 332 (5th ed.) ; Com. Dig. tit. Copyhold (K. 3) ; Doc d. L.T. Robinson v. Bousfield, 6 Q. B. 422 ; 1 C. & K. 558. (rt) Ishericoodx. Ohlknov;, 3 M. &S. 382; Easton v. Pratt, 2 H. & C. (576 ; 33 L. J., Ex. 233. {b) JVorledge v. Bcnbury, Cro. Jac. 436 ; Scriven Cop. 332 (5th ed.j. (o) Haddon v. Arroicsmith, Cro. Eliz. 461 ; Doe d. Wood v. Morris, 2 Taunt. 52. (d) Com. Dig. tit. Copyhuld (C. 3) ; Scriven Cop. 33i (5tli ed. ). 66 Chap. I. — By whom Terms granted. Ch. I. Sec. 32, Leases bij Lords of Manors and Copyholders. Effect of Leases by Copyholders. Copyhold Act, 1894. precedent, and therefore that no forfeiture was incurred (e). If the interest actually granted be within the period allowed by the custom of the manor, although the lessor covenants that the lessee shall enjoy the land for a longer period, no forfeiture is incurred ; the distinction being between an interest actually granted and a matter which rests entirely in contract (/). No one can take advantage of the forfeiture, except the party who was lord at the time it occurred. The remainderman or reversioner, after the death of the lord without entry or seizure for the forfeiture, has no such right {g). The admit- tance of a copyholder after a forfeiture has been incurred, is a waiver of such forfeiture ; and any act equally solemn will operate in the same manner. A waiver does not operate as a new grant, but the tenant is in by virtue of his old title {h). If a copyholder, after a lease by licence, forfeit his copyhold, the lord cannot avoid the lease (i). A lease by a copyholder not warranted by the custom, and without the licence of the lord, is good against the parties themselves and against every one but the lord (A') : and as against the lord it is only a ground of forfeiture, which he may waive (/). If a coi)yliolder make a lease by licence, the lessee may assign without licence, or make an underlease, for the lord by his licence has jjarted with his interest ; so if the lessor after a lease b}" licence die without heir, the lessee shall have it for his term against the lord, for the licence is a con- firmation of the lord (m). The 37th section of the Copyhold Act, 1894, 57 & 58 Vict. c. 46, which consolidates previous Copyhold Acts from 1841 to 1887, and deals with enfranchisement of copyhold and other matters affecting the relationship between lords and copyholders, contains a proviso in favour of an occupying tenant who properly pays on account of a rent-charge under that act any money which as between him and his landlord he is not liable to pay, the section enacting that he " shall be entitled to recover from the landlord the money paid, or to deduct it from the next rent payable." (e) Bac. Abr. tit. Leases (1, 6) ; Price V. Birch, 4 M. & G. 1 ; 1 DowL, N. S. 720 ; Lenthall v. Thomas, 2 Keb. 267 ; Pester V. Cntcr, 9 M. & W. 315. (/) Lady Montague's case, Cro. Jac. 301 ; Lenthall v. Thomas, 2 Keb. 267 ; Doe d. Coore V. Clare, 2 T. R. 739 : Richards v. Ceeley, 3 Keb. 638 ; Cole Ejec. 615. (g) Lady Mo^itagtic's case, supra ; East- court V. IFeeks, 1 Salk. 186 ; Margaret Podger's case, 9 Co. R. 107 a; 1 Brownl. 181 ; 2 Id. 134, 153 ; Cole Ejec. 615. (/() Doc d. Tarrant v. Hellier, 3 T. R. 171 ; 1 R. R. 680. (i) Com. Dig. tit. Copyhold (C. 3) ; Clarke v. Arden, 16 C. B. 227. {k) Salisbury d. Cooke v. Hard, Cowp. 481 ; Ashjield v. Ashfield, Sir W. Jon. 157 ; Doe d. Tressiderv. Tressider, 1 Q. B. 416 ; Doe d. Robinson v. Pousjield, 1 C. & K. 558 ; 6 Q. B. 492. {I) Doc d. Robinson v. Bousfield, 6 Q. B. 492 ; 1 C. & K. 558. (hi) Johnsoji V. Smart, 1 Roll. Ab. 508, ph 14. Sect. 33. — Leases by Agents and Bailiffs. 67 Sect. 33. — By Agents and Bailiffs. Ch. I. Sec. 83. (fl) Agents. Agents and An agent having sufficient authorit}' may bind his principal by ^' '■^'^' leases and agreements for leases made for him and in his name and ^^^thohty of ^ Agents to on his behalf (h). If the lease or agreement be under seal, the execute agent's authority to execute it must also be under seal (o). But if ^^^^^* the lease or agreement be not under seal, the agent's authority need not be under seal, nor even in writing, notwithstanding the 4th sec- tion of the Statute of Frauds ( j)). The agent should not exceed his authority, otherwise the principal will not be bound, and the agent will incur a personal liability {q). The authority of the agent to sign the particular contract, or such a contract, must be proved, if disputed, in an action or suit against the principal (/•). A steward or land agent has no authority as such to enter into con- Land Agent. tracts for leases (s) ; but a power to "manage and superintend estates " gives an authority to contract for the granting of customary leases according to the nature and locality of the property to be demised {t). From a direction of Blackburn, J., to a jury it seems that a farm bailiff with authority to let from year to year on the usual terms and to receive rents, has no implied authoritj' to let on unusual terms, or to make such a special stipulation as that, a farmhouse being out of repair, an in-coming tenant should not be bound to repair, or leave in repair, and should be paid a full and fair compensation for any rexjairs which he should do, without the express authority of his principal (u). If an agent acts without sufficient authority, his acts may be Subsequent subsequently adopted and ratified in writing by his principal (.r), or even without any writing (?/). Even where an agent executes a deed on behalf of his principal, but without sufficient authority, the latter may adopt and ratify the deed by re-delivering it, or by an3'tbing (w) Hamilton v. Earl Clanricarde, 1 way v. Wharton, 3 De G., M. & G. 677, Bro. P. C. 341 ; Ridcjicay v. Wharton, 3 686 ; 27 L. J., Ch. 46 ; 6 H. L. Cas. 238 ; De G., M. & (J. 677, 688; 6 H. L. Cas. Firth v. Greenwood, \ Jur., N. S., 806; 238. Spedding v. iVevcll, L. R,, 4 C. P. 212. (o) ZBac. Ahr. i08; Com. Big. tit. Aftor- {s) CoIIoi v. Gardiner, 21 Beav. .540, ney (C. 1), (C. 5) ; Harrison v. Jackson, per Roniilly, M.R. ; Mortal v. Lyons, 8 7 T. R. 207 ; Horslcy v. Rush, Id. Ir. Ch. 112 ; Ridqiray v. Wharton, supra. 209. {t) Peers v. Sncyd, 17 Beav. 151. ( p) 29 Car. 2, c. 3 ; Coles v. Tricothick, (u) Turner v. Hutchinson, 2 F. & F. 9 Ves. 234, 2.50 ; 7 R. R. 167 ; Clinan v. 185 ; in this case the agent had died. Cooke, 1 Sch. & Lef. 22 ; 9 R. R. 3 ; Clarke {x) Fitzmauricc v. Baylcy, 6 E. & B. V. Fuller, 16 C. B., N. S. 34 ; Forster v. 868 ; reversed in error on anotlier point, 8 Rowland, 7 H. & N. 103 ; Heard v. Filley, E. & B. 664 ; 9 H. L. Cas. 78. L. R., 4 Ch. Ap. 548. iy) Rodmcll v. Edni, 1 F. & F. 542 ; {q) Hamilton v. Earl Clanricarde, 5 and see Bolton Partners v. Landicrt. 41 Bro. P. C. 547 ; Spcdding w. Ncvell, L. R., Ch. D. 295— C. A., and post, Ch. IY., 4 C. P. 212. sect. 1 (b). (r) Bolrc v. Sutton, 3 Mer. 237 ; Ridg- 5 — 2 68 Chap, I. — By whom Terms granted. Ch. I. Sec. 33. Leases by Agents and Bailiffs. Agiiwt should sign the Name of his Princijial. Form of Sig- nature, &c. Implied Warranty of Authority. If Agent exe- cutes in his own Name onl}', he will be personally liable. Parol Evi- dence not admissible to exonerate Agent. How far agent can bind principal by promise of lease. tantamount to a re-deliveiy {z). An authority created by deed may be revoked without deed (a). An agent, who has sufficient authorit}^ whether by deed or other- wise, should execute any lease or agreement in the name of his principal, and not in his own name o\\\y{h). Thus, " A.B. (seal) by E. F., his attorney," to which ma}^ be added, " by power of attorney hereunto annexed or a copy whereof is hereunto annexed or hereupon indorsed." If the writing be not under seal, it should be signed thus, — "A. B. by E. F. his attorney," or "Per pro A. B., E. F., or to that effect "(c). If an agent executes a lease or agreement professedly as attorne}' or agent for another, he thereby impliedly warrants and promises that he has sufficient authority from his principal to execute such contract on his behalf, and an action will lie against him personally or against his representatives, for the breach of such warranty or promise, if he reall}^ has no such authority {d). If an agent executes a lease or agreement in his own name only, whether under seal {c), or not under seal (/), he will be personally liable as a principal, although in the body of the instrument he is described as agent for A. B., and is therein stated to make it for and on behalf of A. B. ; because an agent may, if he please, contract a personal liability for and on behalf of his principal ((/). Parol evidence would not be admissible to exonerate the agent from such personal liability, for that would contradict the writing {h). But it would be admissible to charge the principal, and to enable him to sue or be sued on the contract (i). To avoid such personal liability the agent should always sign as agent, and not with his own name only (/c). The question has been raised whether an agent having authority to let lands can bind his principal b}' a stipulation that if certain events happen a party shall have a lease (/). It seems that if the (~) Shep. Touch. 57 ; Tupjio' v. Foulkcs, 9 C. B., N. S. 797 ; 30 L. J., C. P. 2U. (a) Rrx V. Wait, ]1 Price, 508 ; Manser V. Back, 6 Hare, 443. {b) Comhess case, 9 Co. R. 77 a ; White V. Cmjler, 6 T. R. 177 ; 3 R. R. 147 ; Wilks V. Back, 2 East, 142 ; Appleton v. Binks, 5 East, 148 ; Tanner v. Christian, 4 E. & B. 59] ; Parker v. WinJow, 7 E. & B. 942, 947 ; Cooke v. Wilson, 1 C. B., N. S. 153 ; 26 L. J., C. P. 15 ; Saxon v. Blake. 29 Beav. 438 ; M'Ar die v. Irish Iodine Manu- facturing Co., 15 Ir. C. L. Rep. 146. (c) Alexander v. Sizer, L. R., 4 Ex. 102. [d) Collen V. Wright, 7 E. & B. 301 ; 8 Id. 647 ; 27 L. J., Q. B. 215 ; Simons v. Patchett, 7 E. & B. 568 ; Pow v. Davis, 1 B. & S. 220 ; 30 L. J., Q. B. 257 ; Sped- ding v. Nevell, L. R., 4 C. P. 212. (c) Ap2>lcton V. Binks, 5 East, 148 ; 7 R. R. 672. (/) Tanner v. Christian, 4 E. & B. 591 ; Cooke V. Wilson, 1 C. B., N. S. 153 ; 26 L. J., C.P. 15 ; Parker V. Winloiv, 7 E. & B. 942, 947 ; Saxon\. Blake, 29 Beav. 438. (g) Norton v. Herro7i, 1 C. & P. 648 ; By^ & l\Ioo. 229 ; Tanner v. Christian, 4 E. & B. 591 ; Cooke v. Wilson, 1 C. B., N. S. 153 ; 26 L. J., C. P. 15 ; Parker v. Winhm; 7 E. & B. 942, 947. {h) Higgins v. Senior, 8 M. & W. 844 ; Humble V. Hunter, 12 Q. B. 310 ; Jones V. LittlecMc, 6 A. & E. 486 ; Magee v. Atkinson, 2 M. .V ^V. 440 ; Chadwick v. Maden, 9 Hare, 191. {i) Iligqins v. Senior, supra; Humfrey V. Dale, 7 E. & B. 266 : I:., B. & E. 1004. {k) Green v. Kopkc, 18 C. B. 549 ; Clcty V. Southern, 7 E.xch. 717 ; 27 L. J., Ex. 202 ; Parker v. Winloiv, 7 E. & B. 942 : Declands v. Gregory, 2 E. & E. 602 ; Cooke V. Wilson, 1 C. V)., N. S. 153; Alexander V. Sizcr, L. R., 4 Ex. 102. [1) Pumisdcn v. Dyson, L. R., 6 H. L. 129. I Sect. 33. — Leases by Agents and Bailiffs. 69 principal knows that the party is dealing with his agent under the Ch. I. Sec. 33. belief tliat all statements made by the agent were warranted by tlie Leases hu 1 • n ' 1 1 Agents and principal, and so knowing, allows the part}^ to expend money, a Bailiffs Court of Equity would not afterwards allow the principal to set up want of authorit}' in the agent, but that this knowledge must be brought home to the principal {m). With respect to misrepresentations by agents on the sale or letting Mi.srepre- of property, whereb}' a person is induced to enter into a disadvan- ^"5^^^°" ^^' tageous contract, which otherwise he would not have entered into, Comfootx. it was held in Cornfuut v. Fowke {11) to be incorrect to say that the ■^'"-■^''^• misi'epresentation by the agent has the same effect as a misrepre- sentation by the principal. There the plaintiff put a furnished house into the hands of an agent to let at a stipulated rent. The plaintiff knew, but the agent did not know, that the ad- joining house was a bawdy-house. That the defendant had been informed by the agent, in answer to an inquiry, that there w^as no objection to the liouse, w^as held not to be a defence to an action for not taking it. But it is conceived that Cornfoot v. Fowke would now be either overruled or explained away (»»)• If an agent make such representations fraudulentl}', the principal will be liable, although he did not instruct his agent to make an}' representations on the subject (o). So if the principal authorizes any such false representations, or knowingly employs an agent, ignorant of the j^articular defect or objection, in order that the latter may innocently, but inaccurately answer questions on the subject, it b}'' no means follows that the party defrauded can Rescinding repudiate and rescind the whole contract, by reason of the fraud p|!."|']^^^ ^'^^' practised upon him Qj), although sometimes it may be done imme- diately after the fraud is discovered, provided the parties can be replaced in statu quo, but not otherwise (p). This can seldom if ever happen where an estate has passed, or possession has been taken. A trustee, who is otherwise disqualified as such, may act as agent Trustee after renouncing his trust, and his conduct ma}' be evidence of renun- "" " ciation (5), though of course it is more prudent to renounce by deed. A house-agent letting a house for his employer seems to be liable House-Ageut. if he neglects to make reasonable inquiries as to the solvency of the tenant. In a case where the house-agent introduced a tenant, and charged 5 per cent, commission, it was held to be a question for the {m) See Ramsdcn v. Dt/soti, supra. Baririck v. English Joint Stock Bank, {n) Cornfoot v, Foivkc, (5 M. & \V. 358 ; L. R., 2 Ex. at p. 'JGi, per Willes, J. Lord Abinger, C.B. , diss. (o) See Barwick v. Eiujlish Joint Stock {nn) See notes to Pasley v. Freeman, Bank, L. R. , 2 Ex. 25^, Kx. C'li. 2 Sni. L. C, lOtli ed., ]>. 81 ; Evans on {])) Blackburn v. Smith, 2 Exeh. 783 ; Principal and Agent, 2nd ed. at p. 47(3 ; Frrct v. Ili/l, 15 C. B. 2u7 ; Clarke v. Pollock on Contracts, 6th ed. at p. 552 ; Dickson, E., B. & E. 148. Pollock on Torts, 5th ed. at p. 291 ; (. 2i8; McMichael, 5 Ex. 128. 54 L. J., Ch. 742 ; 53 L. T. 262 ; 33 W. R. (I) Holmes v. Blogg, 8 Taunt. 35 ; 19 728, per Pearson, J. 76 Chap. II. — To whom Terms granted. Ch. II. Sec. 5. Leases to 3Iarried Women. Married Women may be Lessees. Renewal of Leases to Married Women. Sect. 5. — To Married Women. At common law, a married woman may be a lessee, her husband's express assent to the lease not being necessary, as the estate vests until he signifies his dissent (r). She may, however, avoid it after his death (s). A married woman living separate from her husband may, at common law, by taking a lease, bind her separate estate for payment of the rent and performance of the covenants {t), and it is expressly provided by s. 1 of the Married Women's Property Act, 1898, 56 & 57 Vict. c. 63, repealing and re-enacting with amendments sub-ss. 3 and 4 of the Married Women's Property Act, 1882, 45 & 46 Vici. c. 75, that — Every contract hereafter entered into by a married woman, otherwise than as agent — (a) shall be deemed to be a contract entered into by her with respect to her separate property whether she is or is not in fact possessed of or entitled to any separate property at the time when she enters into such contract ; (b) shall bind all separate property which she may at that time or thereafter be possessed of or entitled to ; and (c) shall also be enfoi'ceable by process of laAv against all property which she may thereafter while discovert be possessed of or entitled to. Provided that nothing in this section contained shall render available to satisfy any liability or obligation arising out of such contract any separate property which at that time or thereafter she is restrained from antici- pating. By the Infants' Property Act, 1830, 11 Geo. 4 & 1 Will. 4, c. 65, s. 12, leases to married women may, under the directions of the Chancery Division of the High Court {u), be surrendered and renewed. Liability of. Eenewal of Leases. Sect. 6. — To Lunatics. Idiots and lunatics may take leases for their benefit {x). Use and occupation cannot be maintained on a written agreement entered into by a lunatic to take a house which is unnecessary, if the lessor was aware of it, and took advantage of the lunatic's situation (?/). Committees of lunatics may, by the Lunacy Act, 1890, 53 & 54 Vict. c. 5, replacing 16 & 17 Vict. c. 70 {z), under the direction of the Judge in Lunacy, surrender leases and take new ones for the benefit of the lunatic. (r) Sivainc v. Holman, Hob. 204 ; Co. Lit. 3 a. • (s) Co. Lit. 3 a. (i) Gaston v. Frankmn, 2 De G. & Sm. 561 ; Fry, s. 157. (?/) Substituted for tlie Court of Chancery by the Judicature Act. (j') Co. Lit. 2 b. (?/) Dane V. Viscountess Kirkwall, C. & P. 679. (z) Ante, Ch. I., Sect. 24. Sect. 7. — Leases to Convicts. 77 Sect. 7. — To Convicts. Ch. II. Sec. 7. The leaseholds of a convict come under the operation of the Comkts Forfeiture Act, 1870, 33 & 34 Vict. c. 23, passed to abolish for- :;^ ^ Persons feitures for treason or felony. At common law the leaseholds of convicted of persons attainted of treason or felony became forfeited, with their felom-^ °^ other property, to the crown (a). But by the 1st section of the Act of 1870, it is provided that no conviction for treason or felony, or felo de se, shall cause any forfeiture or escheat {h). Sect. 8. — To Aliens and Denizens. The rights of aliens to hold property have been regulated b}^ Naturaliza- a series of statutes culminating in the Naturalization Act, 1870 i870. ' (33 & 34 Vict. c. 14), which repealed ten previous statutes. Of the repealed acts, it will be sufficient to refer shortly to two. By 32 Hen. 8, c. 16, s. 13 (c), leases of dwelling-houses or shops granted to any stranger artificer were made void. That act did not extend to assignments to aliens of leases previously granted to natural- born subjects {d). By 7 & 8 Viet. c. 66, s. 4, aliens were enabled to hold personal property of all kinds, except chattels real [i.e., terms of years] , as effectually as natural-born subjects ; and by sect. 5 of the same act " every alien being the subject of a friendly state " was enabled to hold lands or houses for the purpose of residence or business for any term of years not exceeding twent3^-one years. But all statutory restrictions appear to be done away witli by the Alien may Naturalization Act, 1870 (33 & 34 Vict. c. 14), which enacts (sect. 2), ^he same that " real and personal ])ropertv of every description may be taken, "tanner as •^ i X . . i . . n natural-born acquired, held and disposed of by an alien m the same manner ni all Subject. respects as by a natural-born British subject ; " provided that this section shall not confer any right on an alien to hold real property situate out of the United Kingdom, or to " any right or privilege as a British subject, except such rights and privileges in respect of property as are hereby expressly given to him," and " that this section shall not affect any estate or interest in real or personal property to which any person has or may become entitled, either mediately or immediately, in possession or expectancy, in pursuance of any dis- I)osition made before the passing of this act, or in pursuance of any devolution by law on the death of any person dying before the passing of this act." {a) Co. Lit. 2 b. (rl Repealed, Stat. Law Rev. Act, 1863. {h) See further provisions of this act, {d) Wootten v. Stcfcnoni, 12 il. & W. ante, Chap. I., Sect. 25. 129. 78 Chap. IL — To whom Terms granted. Ch. II. Sec. 8. Leases to Aliens. Alien Enemies, Denizens. Alien enemies cannot hold leases for the purpose of habitation or commerce, or for any other purpose (c), and this restriction does not appear to be taken away b}^ the Act of ] 870. A denizen, i.e., an alien born, who has obtained ex donatione regis letters-patent to make him an English subject (/), may be a lessee, like a natural-born subject {g), independently of the Naturalization Act. Leases to Corporations. Authority to hold hxud in mortmain. Leases by Corporations to their own Members. Canal Companies. Sect. 9. — To Corporations. A corporation aggregate may take any chattel, as a lease, &c., in its corporate cajiacit}-, which shall go in succession, because it is always in being {h). But regularly no chattel shall go in succession in case of a sole corporation ; therefore, if a lease for years be made to a bishop and his successors, and the bishop die, it shall not go to his successors, but to his executors (?) ; by custom, however, it may, as in the instance of the Chamberlain of London {k). No corj^oration, however, whether sole or aggregate (with some few exceptions), can take a lease unless it be authorized by licence from the Crown, or bj' some statute for the time being in force to hold land in mortmain, and land leased to a corporation without such authority becomes forfeited to the Crown from the date of the lease {I). One individual of a corporation aggregate cannot take a lease from the corporation (7«). A corj^oration sole cannot make a lease to himself in his natural cajiacit}^ {m) ; but there is no objection to such a lease being made in trust for the grantor. One member of a cor- poration aggregate cannot make a lease of corporate lands to another member; thus, a dean cannot make a lease to his chapter (??«), nor vice versa. But a lease may be made by the dean and chapter to one of the prebendaries, as a prebendary is not an integral part of the body politic (»/). AVhere land was let to the churchwardens and over- seers of the poor, jointly with the surveyors of the highways, and their successors, it was held that it was not within the Poor Relief Act, 1819, 59 Geo. 3, c. 12, s. 12, though let at a vestry meeting and for the purposes of the poor ; and that therefore the parties were individually liable {n). By 21 & 22 Vict. c. 75, s. 3, made perpetual by 23 & 24 Vict. c. 41, canal companies being also railway companies may not accept a lease of a canal or railway, except under the authority of a special act. (c) See Alcinous v. Negrcn, 4 E. & B. 217. (/) Co. Lit. 129 a; Cole Ejec. 576. {g) 1 Blac. Com. 374 ; Bendl. 10, pi. 40 ; 32 Hen. 8, c. 16, s. 13. {h) Bac. Abr. tit. Corporations (E. 4). (i) Co. Lit. 46 b. {h) 2 Bac. Abr. 14. (/) Mortmain and Charitable Uses Act, 1888, 51 & 52 Vict. c. 42, ss. 1, 6 (excep- tion of parks, schoolhouses, &(?.), and 10. (wi) iialter v. Grosvenor, 8 Mod. 303. (?i) Uthivcdt V. Elkins, 13 M. & W. 772. Sect. 10. — Leases to Parish Officers. 79 Sect. 10. — To Parish Officers. Ch.II.Sec.io. The Poor Relief Act, 1819, 59 Geo. 3, c. 12, ss. 8, 9, authorizes p„^^"hOffiLrB parishes to purchase or hire houses for the purposes of lodging the ~ ' ■■■ . o o Leases for poor, and to huild workhouses thereon : and to resell what may be no Workhouses. longer wanted. Such assurances, if made for value, are not charitable nor affected b}- the Statutes of Mortmain (o). Guardians of unions may, by order of the Local Government Board and with consent of ratepayers, hire buildings for union workhouses, &c., pursuant to the Poor Law Amendment Act, 1834, 4 & 5 Will. 4, c. 76, s. 28. By the Poor Law Amendment Act, 1867, 30 & 31 Vict. c. 106, Teniporary Hiriu'^s s. 13, " guardians may, with the approval of the Poor Law Board without Seal. [Local Government Board since the Local Government Act, 1871], hire or take on lease, temporarily, or for a term of years not exceed- ing five, any land or buildings for the purpose of the relief or employment of the poor and the use of the guardians or their officers, without any order of the said board under seal." By the Poor Relief Act, 1819, 59 Geo. 3, c. 12, s. 12, church- Leases of not wardens and overseers may, with the consent of the vestry, purchase, Twenty-Acres or hire or take on lease for and on account of the parish, an}' suitable ^° *''^ whole, portion or portions of land within or near to the parish, not ex- ceeding twenty acres in the whole, and emplo}' paupers to cultivate the same (/>). By sect. 17, all such land is to be conveyed, demised and assured to them and their successors, and they are to take and hold the same " in the nature of a body corporate for and on behalf of the parish." Any such assurance sliould be made to them " and their successors," not to them, their heirs and assigns (o). AVhere land was let to the churchwardens and overseers of the jioor, jointl}' with the surveyors of the liigliways, and their successors, it was held that it was not a case within the above act thougli let at a vestry meeting and for the purposes of the poor, and that therefore the parties were individually liable ({/). A demise to churchwardens and overseers in their name of office would be good, and no acceptance thereof under any common seal need be alleged in pleading (/•)• The}' are not exactly a corporation, but only a quasi-corporate body of a peculiar kind (s). By the Parochial Offices Act, 1861, 24 & 25 Vict. c. 125, " the Lease to overseers of any parish in England, the po))ulation whereof shall f r^o|^*^^^e'g'~ exceed 4,000 persons according to the census, for the time being, (o) Burnahy v. Barshy, 4 H. & N. 326 ; (r) Smith v. Adkins, 8 3L & W. 362 ; 28 L. J., Ex. 326. 1 Dowl., N. S. 129. (p) As to letting sucli land, see ante, (s) Gouldsioorth \. Knights, 11 M. & "\V. Chap. L, Sect. 16. 337. (?) Uthimtt V. EJkins, 13 I\I. & ^\ . 772. 80 Chap. II. — To whom Terms granted. Ch.II.Sec.10. Leases to Parish Officers. with the consent of the vestry, called after due notice, and with the consent of the Poor Law Board [Local Government Board since the Local Government Board Act, 1871], signified by an order under their seal, may hire any room, or purchase or take upon lease or exchange any land or building, or sell land belonging to such parish, and invest the j)roceeds of such sale in the j)urchase of other land and building, or erect a suitable building on any land acquired as aforesaid, for the purpose of an office for the transaction of the business of the parish " {t). Leases under Friendly Societies Act. Friendly Societies Act, 1896, s. 47. Sect. 11. — To Trustees of Friendly Societies. The 47th section of the Friendly Societies Act, 1896, 59 k 60 Vict, c, 25, re-enacting s. 16 of the repealed Friendly Societies Act, 1875, 38 & 39 Vict. c. 60, is as follows :— (1) A registered society or branch may (if the rules thereof so provide) hold, purchase, or take on lease in the names of the trustees of the society or branch, any laud, and may sell, exchange, mortgage, lease, or build upon that land (with power to alter and pull down buildings and again rebuild) and a purchaser, assignee, mortgagee, or tenant shall not be bound to inquire as to the authority for any sale, exchange, mortgage, or lease by the trustees, and the receipt of the trustees shall be a discharge for all sums of money arising from or in connexion with the sale, exchange, mort- gage, or lease. (2) A bi'anch of a registered society need not for the purposes of this section be separately registered. (3) Nothing in this section shall authorise a benevolent society [i.e., by sect. 8 (3) " a society for any benevolent or charitable prnqoose "] to hold land exceeding one acre in extent. 9 & 10 Vict. c. 74. Town Council may take Lease of Baths. • Sect. 12. — To Trustees of Public Baths and Wash-houses. By the Baths and AVash-houses Act, 1846, 9 & 10 Vict. c. 74, after providing in what manner the act may be adopted by municipal corporations, or (with the approval of one of her Majesty's principal secretaries of state), by any parish in England not within any such incorporated borough, and for the appointment of commissioners for carrjdng that act into execution in an}' such parish ; sect. 27 enacts, "that the council of any such borough, and the commissioners, with the approval of the vestry of any such parish, may, if they shall think fit, contract for the purchase or lease of any baths and wash-houses already or hereafter to be built and provided in any such borough or parish, and appropriate the same to the purposes of this act, with such additions or alterations as they shall respectively deem {t) The Act contains other clauses for carrying the above into efifect. Sect. 12. — Leases to Trustees of Public Baths, &c. 81 Cn.II.SEr.l2. Leases to Trustees of PithUc Baths and Wash- houses. Adoption of Act by parish meet- ing in rural parish. necessary:" and the trustees of anysuchpublicbaths andwash-houses, with such consent as therehi mentioned, are authorized to sell and lease the same to the said council or commissioners (^0- In rural parishes the parish meeting has the exclusive power of adopting the act and its amending acts. When a municipal corporation provides baths and wash-houses under the provisions of this act, the property becomes vested in the body corporate with all incidental liabilities, and not in the council (x) . Sect. 13. — Of Laud for Free Puhlic Libraries, Museums, cC-c. By the adoptive Public Libraries Act, 189*2, 55 & 56 Yict. c. 53, a Lease to Town consolidating Act, s. 11, the library authority of any library district. Local' Bol'i-d i.e., the council of any borougii or other urban district, the library "ii^i"' Public commissioners of any metropolitan parish, and in rural parishes, by s. 7 of the Local Government Act, 1894, 56 & 57 Vict. c. 73, the jjarish council, or if there be no parish council, the parish meeting, may, for the purposes of that act, " Jiire land " and may " erect, take down, rebuild, alter, repair and extend buildings for such purposes, and fit up, furnish and supply the same respectively with all requisite furniture, fittings and conveniences." By sub-s. 4 of s. 12 the same authority " may let a house or building or any part thereof, or any land vested in them for the purposes of the act, which is not at the time of such letting required for those purposes, and shall apply the rents and profits thereof for the purposes of the act." Sect. 14. — To Ratepayers for Puhlic Improvements. By the adoptive Public Improvements Act, 1860, 23 & 24 Yict. Lease to c. 30, intituled " An Act to enable a Majority of Two-Thirds of the Ratepayers lor Public Ratepayers of any Parish or District, duly assembled, to rate their Inijirove- District in aid of Public Improvements for general benefit within ,-,., „ „', ,t. . _ ^ ^ 23 & 24 V let. their District " (sect. 1), " it shall be lawful for the ratepayers of any c. ao. parish maintaining its own poor, the population of which, according to the last account from time to time taken thereof b}' the authority of parliament, exceeds five hundred persons, to purchase or lease lands, and to accept gifts and grants of land, for the purpose of forming any 2^ id die walk, exercise or plajifi round, and to levy rates for maintaining the same, and for the removal of any nuisances, or obstruction to the free use and enjoyment thereof, nnd for improriuii any open walk or footpath, or })lacing convenient seats or shelters from rain, and for other purposes of a similar nature." By sect. 2, the (it) See Chitty's Statutes, tit. "■Baths." (,r) Coirlci/v. Mayor, d-c, of Smiderland, 6 H. & N. ,5"65. L.T. 6 82 Chap, II. — To whom Terms granted. Ch.II.Sec.14. Leases to Ratepayers fur Fahlic Improvements. To Inhabi- tants of a Parish generall}'. act may be adopted for any borough, or for any parish having a population of five hundred or upwards, in the same manner as the Baths and Wash-houses Act may be adopted in such borough or parish, and by sect. 7 of the Local Government Act, 1894, 56 & 57 Vict. c. 73, in rural parishes the parish meeting has the exclusive power of adopting the act, which is executed by the parish council, if there be one, but if not, by the parish meeting, A lease cannot generally be made to the inhabitants of a parish or township, because they cannot take as such, not being a corporate body {ij). But a grant from the crown to the inhabitants of a parish would in effect incorporate them, though for the purposes of such grant only {z). Renewal of Leases by Trustees. Sect. 15. — To Trustees of Renewable Leaseholds. The 19th section of the Trustee Act, 1893, 56 & 57 Vict. c. 53, re-enacting ss. 10—12 of the Trustee Act, 1888, 51 & 52 Vict, c, 59, which re-enacted 23 & 24 Vict. c. 145, s. 8 (an enactment repealed by s. 64 of the Settled Land Act, 1882), provides that — A trustee of any leaseholds for lives or years which are renewable from time to time, either under any covenant or contract or by custom or usual practice, may, if he thinks fit, and shall, if thereto required by any person having any beneficial interest, present or future or contingent, in such leaseholds, use his best endeavours to obtain from time to time a renewed lease of the same hereditaments on the accustomed and reasonable terms, and for that purpose may from time to time make or concur in making such surrender of the lease for the time being subsisting, and do all such other acts as ai'e requisite ; provided that, where by the terms of the settle- ment or will the person in possession for his life or other limited interest is entitled to enjoy the same without any obligation to renew or to con- tribute to the expense of renewal, this section shall not apply unless the consent in writing of such person is obtained to such renewal on the part of the trustee. By sect. 11, money required for renewal of leases, &c., may be raised out of the trust funds. A trustee, whose duty it was to renew leaseholds out of the rents, applied them to his own use : — Held, that the tenant for life, and not those in remainder, must bear the loss {a). Leases to Agents. Sect, 16. — To Agents and Trustees. With respect to agents and other persons whose duties are to pro- tect their principals and to prevent the projjert}^ from being let at an (y) We(My v. Wildman, 1 Ld. Ra.ym. of Bermondsey v. Brown, 14 "W. R. 213. 405, 407 ; Abhot v. Weekly, 1 Lev. 176 ; {z) Willingale v. Maitland, L. R., 3 Eq. LocMoood V. Wood (in error), 6 Q. B. 62 ; ' 103, 106 ; 36 L. J., Ch. 64. Constable v. Nicholson, 14 C. B., N. S. (a) Sollcy v. Wood, 29 Beav. 482. 230 ; 32 L. J., C. P. 240. But see Vestry Sect. 16. — Leases to Agents and Trustees. 83 Leases to ■igents and Trustees. undervalue, Courts of E quit}' view with considerable jealousy eon- Ch.II.Sec.1*). tracts entered into for leases to them. It is incumbent on a person in the situation of an agent to show that the transaction is perfectly' fair and reasonable, and that a just consideration has been given by him for a lease obtained from his principal (h). The same observa- tion also applies to persons in the situation of debtor and creditor, solicitor and client, and mortgagor and mortgagee (c). If a lease be made to a trustee, he is personally' liable for the rent Lease to and covenants (d), and the lessor has no remedy at law against the cestui que trust in respect thereof. The trustee, however, where he holds leasehold property for a tenant for life and remaindermen, has a duty to the remaindermen to keep it free from risk of forfeiture, and is entitled to have the rent employed in so keeping" it (e), and further, except in case of personal default, would seem to have a right to be indemnified out of the trust fund (/). If there be personal default on the part of the trustee, he would seem to have no right to be indemnified. A lease by a trustee to himself seems to stand on the same footing as a sale by trustee to himself; i.e., it is a transaction of the greatest nicety, and one which the courts will watch with the greatest jealousy (g). (b) Ld. Kingsland v. Barncxocll, 4 Bro. P. C. 154 ; Ld. Hardwickc v. Vernon, 4 Ves. 411 ; 4 R. R. 244 ; Lady Ormond V. Hutchinson, 16 Ves. 94 ; Grosvcnor v. Shcrratt, 28 Beav. 659 ; post, Chap. IX., Sect. 4. (c) Guhhins v. Creed, 2 Sch. k Lef. 214 ; Webb V. Eorke, Id. 661 ; Fisher, s. 873 ; post, Chap. IX., Sect. 4. {d) Waltevs v. Koi-thern Coal Mia ing Co. , 5 De G., M. & G. 629 ; 25 L. J., Ch. 633. (c) Fow/er, In re, 16 Ch. D. 723 ; 44 L. T. 99 ; 29 W. R. 891, per Fry, .T. (/) Lewiu on Trusts, 7th ed. , p. 217. (,(/) See Lewiii on Trusts, 7th ed., pp. 438 — 451 ; citiug Ux jjarte Hughes, 6 Ves. 617 ; 6 R. R. 1 ; Att.-Gen. v. Earl of Clarendon, 17 V'^es. 491. 0—2 ( 84 ) CHAPTER III. OF WHAT TERMS MAY BE GRANTED. Sect. page 1. Corporeal and Incorporeal Here- ditaments 84 2. Advowsons 85 3. Tithes and Tolls 85 i. Commons and Estovers 86 Sect. pace 5. Ways 87 6. Franchises and Corrodies 87 7. Annuities 88 8. Right of Sporting 88 9. Chattels 88 Leases of Cor- poreal Here- ditaments. Definition of Incorporeal Heredita- ments. Demise of, by Deed only. Sect. 1. — Corporeal and Incorporeal Hereditaments. Leases for life, or for years, or from year to 3^ear, may be made of anything corporeal or incorporeal which lies in livery or grant {a). Corporeal hereditaments consist wholly of substantial and permanent objects, as land, houses, &c., and were, before the Real Property Act, 1845, 8 & 9 Vict. c. 106, said to lie in livery ; but, by sect. 2 of that act, " all corporeal tenements and hereditaments shall, as regards the conve5'ance of the immediate freehold thereof, be deemed to lie in grant as well as in livery." An incorporeal hereditament is a right issuing out of a thing corporeal (whether real or personal), or concerning, or annexed to, or exercisable within the same QS). Incorporeal hereditaments are principally these : viz., advowsons, tithes and tolls, commons and estovers, ways, offices, franchises, corrodies, and pensions, and annuities (c). They are : — Generally speaking, capable of being demised ; but sucli demise, even for less than three years, must be by deed, for they lie in grant and not in livery (rf). But a right of way appurtenant to land will l)ass by a parol demise of the land (e), and so will a right to dig turf, or other easement, although not sjiecially mentioned (/) ; so a market, with a right to take the tolls, maybe demised without deed {g). Where there is a demise of premises, and an entire rent reserved, if any part of the premises cannot be legally demised, the whole is void (//). {a) Shep. Tonch. 268. \h) Co. Lit. 19 b, 20 a. (<;) Rex V. Alresford IT. R. 358 ; Musgrave v. Cave, Willes, 323 ; 1 Inst. 9. {d) Mayficld v. Robinson, 7 Q. B. 480 ; Wood V. Lcadbittcr, 13 M. k W. 839. (e) Skull V. Glenister, 16 C. ^.. N. S. 81 ; 32 L. J., C. P. 185. (/) Dobhyn v. Somcrs, 13 Ir. Com. L. Eep., N. S. 293. (.(/) Bridgland v. Shapter, 5 M. & "W. 375. (/() Doc d. Griffith V. Lloijd, 3 Esp. 78 ; 6 K. R. 813. Sect. 2. — Advoavsons. 85 Sect. 2. — Advonsons. Ch.III.Sec.2. An advowson (advocatio) is the right of presentation to a church Advowsms or ecclesiastical benefice. Although it has been said that an advow- ~ ;: " , Lease of son cannot properly be the subject of a demise, on the ground that Advowsous. as no profit is permitted to accrue, no rent can be reserved, nor any services performed to the proprietor (i) ; yet this does not seem to be quite correct ; for a lease may be made not only of lands, but of all other hereditaments (/«;), such as advowsons, tithes, offices not con- cerning the administration of justice, and the like il) ; and the lessee of tithes, advowsons, or any incorporeal hereditaments, would be- liable to an action for the rent agreed upon {m). An advowson is a tenement (»). Where a lessee for years of an advowson was isresented to the benefice by the lessor, it was adjudged to be a surrender of his term (o). Sect. S.— Tithes and Tolls. By 5 Geo. 3, c. 17, persons having any spiritual or ecclesiastical 5 Geo. 3, c 17. promotions are enabled to grant leases of tithes, tolls or other Leases of : . . . Tithes. incorporeal inheritances, solely and without any lands or corporeal hereditaments, for one, two or three life or lives, or for any term not exceeding twenty-one years, which shall be "as good and effectual in law against such archbishop, bishop, masters and fellows, or other heads and members of colleges or halls, deans and chapters, pre- centors, prebendaries, masters and guardians of hospitals, and other persons so granting the same, and their successors and ever}' of them, to all intents and purposes, as any lease or leases already made or to be made by any such archbishop, &c.," by virtue of the stat. 32 Hen. 8, c. 28, or any other statute then in being ; and actions of debt may be brought by such lessors for rent in arrear, as in the case of an}^ other landlord or lessor. Leases of tithes must be by instrument under seal, as incorporeal hereditaments only lie in grant Qj). A parson may grant his tithes for j'ears (q), so he may lease them for so long a term as he shall continue parson (r) ; and rent may be reserved on such lease (s) ; or the parson may demise them without any rent, if he pleases {t). Under the settlement of (i) Com. Dig. tit. Advowson (C. 2). (o) Gi/bson v. Scai-ls, Cro. Jac. 84, 176. {k) Bac. Abr. tit. Leases {A.). {2>) (lardincrx. JFilliaiiisoti, 2 h. k Ad. {I) 2 Cruise, ss. 22, 24 ; Boicshcr v. 336. Morgan, 2 Anstr. 404 ; Cox v. Brain, (q) Shep. Touch. 241. 3 Taunt. 95. (r) Brewer v. Hill, 2 Anstr. 413 ; 3 R. R. (m) 2 Woodd. 69 ; Rogg. Ecc. L. 17 ; 596. Co. Lit. 119 b. (s) 5 Geo. 3, c. 17. (?(-) Kcnary v. Lan-jlmni, Cas. temp. Tal- {t) Walker v. Wakcman. 1 Ventr. 294 ; bot, 144 ; Co. Lit. 19, 20 ; 2 Blac. Com, 2 Lev. 150 ; 3 Kcb. 597. 17 ; Ilobinson v. Tmigice, 3 P. Wnis. 461. 86 Chap. III.— Of what Teems granted. Ch. III. Sec. 3. an estate with a power to the tenant in possession to let all or any Leases of pg^j.^ ^f ^\^q premises, so as the usual rents be reserved, a lease of Tithes and ,.111 ^ i f t ^ ^ ■ 1 , \ Tolls. tithes which had never been let beiore was held void iu). By the Tithe Commutation Act (6 & 7 Will. 4, c. 71), the lessees of tithes commuted to rent-charges may surrender and avoid their leases, on certain terms, as to compensation and apportionment of rent, to be settled by the commissioners. Until they do so, they continue liable to pay the rent reserved by their leases {x). Tolls may be let or mortgaged {y) ; but the Turnpike Acts, which gave express j)ower (see 3 Geo. 4, c. 126, s. 57) to trustees to let turnpike tolls, have been repealed in consequence of the general discontinuance of turnpike roads. Leases of Tolls. Leases of Commons. Leases of Estovers. Sect. 4. — Commons and Estovers. Rights of common may be demised by deed (z). With respect to commons, the Inclosure Act, 1773, 13 Geo. 3, c. 81, s. 15, empowers the lord of aii}^ manor, with the consent of three-fourths of the persons having right of common upon the wastes and commons within the manor, at any time to demise or lease, for any term or number of years not exceeding four years, any part of such waste and commons not exceeding a twelfth part thereof, for the best and most improved yearly rent that can by public auction be got for the same ; and directs that the clear net-rent shall be applied to drain, fence and otherwise improve the residue of the waste and commons. When the lord of the manor conveys away a part of the wastes to a tbird person, though the right of ownership of the soil changes hands, the right of common still subsists in the commoners as well over that part of the wastes that the lord has conveyed awa}', as over tb at part which he retains in his own hands (a). A common will not pass without express words (h). Estovers may be leased ; the grantee, therefore, of house-bote, or hay-bote, may let it to another (c). Estovers to be burned on land demised will not pass without express words {d). ('«) Pomr.ry v. Partinc/ton, 3 T. R. 665 ; 1 R. R. 787. (x) Tasker v. Bidlman, 3 Exch. 351. (y) Olroiid v. Crain2Jton, 4 Bing. N. C. 24 ; Shepherd v. Hodsman, ]8 Q. B. 316 ; Markham v. Stanford, 14 C. B., N. S. 376 ; Gunning on Tolls, 140. (z) Sury V. Brown, Latch. 99. («) Benson v. Chester, 8 T. R. 396 ; 4 R. R. 708, {h) Clark v. Cogge, Cro. Jac. 170, 190. (c) Shep. Touch. 222 ; Bac. Abr. tit. Leases (A.). [d) Clark v. Cogge, Cro. Jac. 170, 190. Sect. 5. — Leases of Ways. 87 Sect. 5. — Ways. Ch.III. ec.5. A right of way legally appurtenant to land is demisable with the JFays. land (e), and will pass with it without being expressly mentioned (/), LeaseTof even by a parol demise (//) ; so will a right to dig turf, or other pre- ^^'^J's. existing easement (It). But after a way or other easement has been extinguished by unity of ownership, it cannot be revived by a grant or lease of the dominant tenement containing general words, such as *' rights, members, easements and appurtenances thereunto belonging or appertaining " (i). But it may pass b}^ the words, " or therewith usually held, occupied or enjoyed " (k). And if it be a way of necessit}' it will pass with the principal subject-matter of the grant or demise, without any mention of ways or appurtenances (Z). So will a watercourse or other necessary easement {m). Sect. 6. — Franchises and Corrodies. Franchises may be demised by deed («), except indeed in some few Leases of particular cases (as where the franchise is a personal immunity, kc.) ; thus a fair or market, either with or without the right of taking toll, either there or at any other public places, as at bridges, wharfs, or the like, may be demised (o). A market, with a right to take the tolls, ma}'^ be demised without deed {j)). A franchise granted to one cannot be bestowed upon another to the prejudice of a former grant {q). Every fair is a market, but every market is not a fair (?•)• A market which is held on the wrong day (Saturday instead of Friday) is not a market "legally established " (.s). The right to a market may be barred by the Statute of Limitations (0- A corrodv is a risht of sustenance, oni>"inatin2; in the endowment Leases of c •• r of lands : in lieu of wliicli, especially when due from ecclesiastical persons, a pension or sum of money was sometimes substituted ; and these were chargeable on the person of the owner of the inheritance in respect thereof (»). A corrody was either certain or uncertain, (c) Oshornc v. Wise, 7 C. & V. 761. {!) Morris v. Ech/iiirfton, 3 Taunt. 24 ; 12 (/) Clark V. Coc/ge, Gio. Jac. 170, 190 ; R. R. 579 ; Davicsv. Scar, L. R., 7 Eq. 427. Staple V. Heydon, 6 Mod. 1, 3 ; Howton v. (m) Surii v. Picjot, Popliam, 166. Fcarson, 8 T. R. 50, 56 ; 15ac. Ab., (n) Somerset, Duke of v. FoqiceU, 5 tit. Offices (H.). P.. & C. 875 ; 8 D. & R. 747 ; 5 L. J., K. B. ((/) Skull V. Glenistcr, 16 C. P., N. S. 10 ; 29 R. R. 449. 81 ; 32 L. J., C. P. 185. (o) 2 Inst. 221, 406. {Ji\ Dohhyn V. Somers, 13 Ir. Com. {])) Brii/(tla)Hl v. S/inpter, 5^1. kW. '^75. L. Eep., N. S. 293. (q) 2 RoH. Abr. 191. (i) Barloiv v. Hhodes, 1 Cr. & U. 439, (r) 2 In.st. 221, 406. 448. (s) Benjamin v. Amlrcics, 5 C. 1?. ,X. S. {k) James v. Pla^it (in error), 4 A. & E. 299. 749 ; Kooystra v. Lit^as, 5 15. & A. 830 ; (<) Holcroft v. Heel, 1 Bos. & P. 400. Bradshaw v. Eyre, Cro. Eliz. 570. (m) 2 Blac. Com. 40. 88 Chap. III. — Of what Teems gkanted. Ch. III. Sec. 6. and might not only be for life or _years, but in fee. If one had Leases of ^ corrody for life, lie might let it to another, or to the grantor Franchises. .' ' o o himself {x) . Leases of Annuities. Sect. 7. — Annuities. An annuit}^ is an annual sura of money granted to another in fee for life, or 3^ears, which charges the person of a grantor only ; or it maybe due by prescription, which always implies a grant. Such annuity may be demised by way of assignment {y). Rents ma}^ also be granted by way of lease {z) . Right of Sporting must be granted by Deed. Sect. 8. — RigJit of Sporting. A demise of an incorporeal hereditament can onl}^ be valid by deed {a), unless it be granted with some corporeal hereditament as appurtenant thereto Qj). The right of hunting, shooting, fishing, &c., is an interest in the realty, and a grant of it is a licence of a profit a prendre (c). Such rights can be granted or demised only by deed. But if the lessee has actually used, occupied and enjoyed such rights under a parol agreement, he must pay for such enjoyment, and may be sued in an action for use and occupation {d). A corporation aggregate may maintain an action for use and occupation of tolls, although they did not grant them b}' an}- instrument under their common seal (e). Leases of Chattels. Sect. 9.— Chattels. Goods and chattels may be let for years, though the terms "land- lord " and " tenant " are inapplicable to such letting, and the interest of the lessee therein differs from the interest which he has in lands. If a man lease for years a stock of live cattle such lease is good, and the lessee has the use and profits of them during the term ; but he cannot destro}', kill, sell or give them away without, it seems, being liable to an action of trespass (/). The lessor, however, has not (a;) Jjac. Abr. tit. Leases (A.) ; E. v. Nicholson, 12 East, 330 ; Feter v. Kcndcd, 6 B. k C. 703; 5 L. J., K. B. 282 ; 30 R. R. 504 ; Beere v. Windcbankc, Sid. 80. {y) Co. Lit. 144 b ; Com. Dig. tit. Annuity (A. 1). {z) Bae. Abr. tit. Leases ; Thomas v. Fredericks, 10 Q. B. 775 ; Co. Lit. 144 b ; Com. Dig. tit. Annuity (A. 1), (E. ). (a) DnJce of Somerset v. FogiceU, 5 .15. & C. 875, 832, 886, and ante («) ; Bird V. Higcjinson, 2 A. & E. 696 ; 6 A. & E. 824. {h) See post, Chap. XVIIL, Sect. -67% " Game." (c) Eicart v. Graltam, 7 H. L. Cas. 331 ; 29 L. J., Ex. 88. (d) Thomas Y. Fredericks, 10 Q. B. 775 ; Holford V. Frifchard, 3 Exch. 793 ; post, Chap. XIV. (e) Mayor, cf-c. , of Carmarthen v. Lewis, 6 C. & P. 608 ; Drury Lane Theatre Co. V. Chapman, 1 C. & K. 14. (/) Lit. s. 71 ; Doe d. Griffith v. Lloyd, 3 Esp. 78 ; 6 R. R. 813. Sect. 9. — Leases of Chattels. 89 any reversion in them, as in the case of hinds, to grant over to Ch.III.Sec.9. another either during the term or after, till the lessee has re-delivered Leases of "~ ... . Chattels. them to him; for the lessor has onl}' a possibility of property incase they all outlive the term ; for if any of them die during the term, the lessor cannot have them replaced after the term ; and during the term he has nothing to do with them, and consequently of such as die the property vests absolutely in the lessee. So, whether they live or die, yet all the young ones coming of them, as lambs, calves, &c., belong absolutely to the lessee as profits arising and severed from the principal, since otherwise the lessee would pay his rent for nothing^ : and therefore this differs from a lease of dead goods and chattels, for there, if anything be added for the repairing, mending or improving thereof, the lessor shall have the improve- ments and additions, together with the principal, after the lease ended, because they cannot be severed without destro3'ing or spoiling the principal (cj) . A mixed payment of rent for land and goods is held to issue out of Leases of the land alone, and the rent may be distrained for {h). (g) Bac. Abr. tit. Leases {A.) ; Collins (h) N'ewmanv. Anderto7i, 2^. kF. 224k ; V. Harding, Cro. Eliz. 606. Selby v. Greaves, L. R., 3 C. P. 594. ( 90 ) CHAPTEE IV. THE AGREEMENT FOR A LEASE. Sect. page 1. Agreement for Lease must he in AVriting 90 (a) What Agreement must state... 94 Effect of Parol Alterations 98 (b) Signature of Agreement 99 By Agent 100 2. Stamp 100 3. Eemedies for Breach 101 4. Action for Specific Performance ... 103 (a) Oral Agreement with Part Per- formance 106 (b) Coin[ileteness of Contract 109 What Acceptance sufficient ... 110 Revocation of Proposal 110 Counter-Proposal 110 (c) Agreement subject to pre|)ara- tion of formal Contract Ill Sect. page 5. Considerations in Refusing or Grant of Specific Performance 113 Indefiniteness 113 Misrepresentation 114 Concealment 114 Illegality 115 Insufficiencj' of Title 115 Hardship 116 Breach of Tru.st 117 Possibility of Forfeiture 117 Frauil, Surprise, Mistake 118 Action of Third Persons 120 Unnecessary Delay 122 6. Specific Performance by or against Particular Persons 124 7. Form of Lease and how settled after a Decree 126 " Usual Covenants " 127 8. Solicitor's Charges 131 Sect. 1. — An Agreement for Lease must he in Writing. We shall see presently (a) that, by the combined operation of the Statute of Frauds and the Real Property Act, 1845, 8 & 9 Vict. c. 106, s. 3, a lease for more than three years is void unless made b.y deed, and that leases for three years or less may be made by parol. But although a lease for three years may be made b}' parol, an agreement for a lease for however short a term must, in order to be sued upon as such, be in writing signed by the party to be sued. Stat. Frauds, For by the 4th section of the Statute of Frauds, 29 Car. 2, c. 3, it is s. 4. ' enacted that — No action on unwritten Contract for Lease. Agent. JSTo action shall be brought whereby to charge any person . . . upon any contract or (b) sale of lands, tenements, or hereditaments, or any interest in or concerning them, or xipon any agreement that is not to be per- formed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him lawfully authorized (c). (a) Post, Cliap. V. (b) So printed in the 2nd edition of the Statutes Revised and all other editions of the statutes, but "or" would seem to have been originally misprinted for "for." The section also protects, similarly, ex- ecutors, guarantors, and promisors of maiTiage. (c) Not saying "by writing," as in sects. 1, 3. Sect. 1. — Agreement for Lease must be in "Writing. 91 An agreement for a lease is a contract for an interest in lands Cii.IV.SKi-. i. within the meaning of sect. 4, and has always been so treated both -lyt^cment for . ^ J ' Lia^c must be at law {(i) and in eqnity {e). We shall see presently, however, that ,« Writing. eifect has been freqnently given both at law and in equity to parol agreements. At law a party entering as a tenant, and evidencing his intention to continue such, has always been treated as a tenant from year to year upon the terms of the agreement ; while in equity a " part performance " by the one party has frequently entitled him to a specific performance by the other. It was said by Jessel, M.R., in Walsh v. Lonsdale (/), that the Agreement effect of the Judicature Acts (see Judicature Act, 1873, s. 25, sub-s. 7) equivalent to is that a tenant holding under an agreement for a lease of which Lease, if 111 1 • /• speeinc specific performance would be granted is not a tenant from year to performance year onlv, but a tenant holding under the lease itself. In this case ^^"''^ ["^ J ' ' " tleereeu. the defendant agreed to grant and the plaintitf to accept a lease at a ;f.'f,/„./, y fixed rent payable in advance, and for tliis rent in advance, after entry l^on.^dah. by the plaintiff and part payment of rent, the defendant distrained, and the Court granted an injunction restraining the distress upon the terms that the rent should be paid into Court. It is to be observed that the plaintift' having entered and paid rent would, even at law as a tenant from year to 3'ear, have been liable to distress (f/), and that if the dictum of Jessel, M.R., be correct, the Eeal Property Act, 1845, 8 & 9 Vict. c. 106, whereby leases for more than three years must be by deed, is rendered practically inoperative. The dictum has been twice approved of (/i) ; and appears to have been recognized as sound by the Court of Appeal in Coafstcorth v. Johnson (?'). In that case the plaintiff entered a farm under an agreement for a lease, nnd did not pay any rent. On account of his failure to perform tlic terms of the intended lease, the defendant treated and ejected him as tenant at will. The i^laintiff sued in trespass, but it having been found as a fact that the terms of the intended lease had been broken, Huddleston, ]>., and subsequently the Court of Appeal, gave judgment fin- the defen- dant on the ground that the agreement was not one of which specific performance Avould be granted. But the rule of WaUh v. Lonsdale County Court has been lield not to apply to a case in wliich the action is brought (d) See especially Echje v. Strafford, 1 ( /') IVuIxh v. Loiisdalc, 21 Ch. D. 9; Tyr. 295 ; 1 Cr. & J. 391. 52 L. J., Ch. 2 ; 40 L. T. S58 ; 31 W. H. (e) Story Eq., vol. 1, s. 754. It maybe 109 — C. A. doubted wliether the word "action" in {(j) See Kiiujht v. Bennett, 11 Moore, the 4th section of the Statute of Frauds '221, and Cha]). XL, Sect. 2, po.st. included '-suit ;" but, however this may (//) l')y Field, J., in /// rr Mainihdn, be, courts of equity, even before the 14 Q. H. D. at p. 958, ajid by Chitty, J., statute, would not execute a parol agree- in Allhiiscn v. Brookimj, 26 Ch. D. at ment, not iu part performed, and it is .said p. 565. by Story (ubi supra) to be obvious that (i) Coatavorth v. Johnson, 55 L. J., courts of equity are bound as much as Q. B. 220; 54 L. T. 520 — C. A. See also courts of law l)y the provisions of the Crump v. Temple, 7 T. L. R. 120. statute. 92 Chap. IV. — ^Ageeement for Lease. Ch.IV. Sec.I. Agreement for Lease must be in Writinrj. Uselessness of agreement for lease in most cases. What is an Interest in Land. Lodgings. Edge v. Straffo7-d. Agreement for Aereement. in a count}^ court upon an agreement for a lease which the county court itself could not decree specific performance of on the ground of the premises agreed to be demised exceeding 500Z. in value (/.:). Walsh V. Lonsdale can now be overruled by the House of Lords alone, and it can hardl}^ be expected that that House would overrule it. However this may be, it is suggested that an agreement for a lease may well be dispensed with in most cases, and that it would be better for both jjarties that a tenant should be let into possession upon an actual lease. The agreement has no advantage in saving an}'- stamp duty [l], but some short binding contract may sometimes be required for the reason that each party wishes to bind the other in a shorter time than "would be occupied by the negotiations as to the terms of a lease. In such cases it would frequently suffice that the intending tenant should either enter on an express contract of tenancy from year to year only, leaving the terms of the lease to be settled by after negotiations, or should pay a small deposit in return for the privilege of more prolonged negotiations. The words " any interest in land," in the 4th section of the Statute of Frauds, are very wide, and include an interest however small for a term however short, provided that the tenant is to have exclusive possession. An early decision to this effect in which the statute was held to apjily to a contract to let lodgings (;»), was emphatically affirmed b}^ the leading case of Edge v. Strafford {n), where the defendant had agreed by parol to take the ready-fmniished lodgings of the plaintiff for two or three years, and the Court held that no action could be maintained for breacli of the agreement. But where the contract was for board and lodging at a boarding-house, hut in no specific rooms, it was held that although the contract was unwritten, an action lay for the breach (o) ; and the two cases are clearly dis- tinguishable on the ground that exclusive possession was bargained for in one but not in the other. An agreement to enter into an agreement for a lease is a good contract in law, and damages are recoverable for refusing to enter into it (p). This was held by the Court of Appeal in a case where the defendant agreed with the plaintiff' (whose term was about to expire) to agree with his landlord for a lease at a specified rent for such term and subject to such conditions as the landlord should apjn'ove, the plaintiff' to surrender his own lease upon the lease agreed for being Q'ranted. (/,) Foster v. Reeves, [1892] 2 Q. B. 255 ; 61 L. J., Q. B. 763 ; 67 L. T. 537 ; 40 W. R. 695—0. A. (Z) See post, Sect. 2. [m) Inman v. Stamp, 1 Stark. 12 ; 18 R. R. 740. [n) Edge v. Strafford, 1 Tyr. 295 ; 1 Cr. & J. 391. (o) Wriiiht V. Stavert, 2 E. & E. 721 ; 29 L. J., Q. B. 161. (77) Foster v. Wheeler, 38 Oh. D. 130 ; 57 L. J., Ch. 871 ; 59 L. T. 15 ; 37 ^V. R. 40— C. A., affirming Kekewich, J., 36 W. R. 267. Sect. 1. — Agreement for Lease must be in Writing. i)S^ A contract to procure a lease must also be in writing, although it is Ch.IV. Sec.1. entered into by a person who has no interest in the lease himself (7). ^iareemcnt for . Lease must be If the agreement be to let and do sometlnng else for the intending in Writbig. tenant, it must be in writing, unless the two parts of it are severable. Contract to Thus, in Mechelen v. Wallace (r), the tenant promised to become procure Lease, such in consideration that the landlord would send in more furniture. j^„,.ep,, g^^* The landlord did not send in the furniture, but the tenant failed to recover, on the ground that the agreement to send in furniture was an inseparable part of the contract for the lease. Similarly, where the plaintiff agreed to let a house to the defendant, and to sell him the furniture and fixtures, it was held that this was a contract which must be in writing (s). But in Aiigell v. I)uke{t), the Court held that an agreement that AiujcUy. the landlord should do repairs and send in furniture was collateral " ^' to the main agreement to let, so as not to require to be in writing within the statute, although the tenant ultimately failed to recover upon it on the ground that parol evidence is inadmissible to vary a written agreement {u). In Adams v. Haggcr, the plaintiff agreed to grant to the defendant "Collateral"" a lease at a certain rent for 99 years of a piece of land so soon as the to'^pay lient defendant should have erected a house upon it, and the defendant till Lease . executed. undertook until the execution of the lease to " hold the said piece oi ^^^^^^^^ land and other the premises at the rent and subject to the conditions Jlaygcr. to be contained " in the lease. It was held by the Court of Appeal that the defendant was liable to pay the rent, although he had not entered upon or taken possession of the piece of land (.r). An agreement after lease granted that the landlord shall enlarge the premises, and the tenant pay a percentage on the landlord's outlay, is not within tlie statute (?/), and therefore need not be in writing. This was held in two cases (//) where the landlord liaving executed improvements recovered the consideration money l)y actitni at law, and the principle of such cases would seem to apply to an action for specific performance. The 4th section of the Statute of Frauds does not absolutely Contract itself require the contract itself to be in writing, but allows the alternative ^^^ ^vritin". of some Avritten "memorandum or note thereof" properly signed ; and the memorandum or note need not be jn-epared at the time, iq) Horsey v. Graham, L. R. , f. C. P. 1 91 ; L. J. , Ex. 46 ; 23 L. T. 7S3 ; 1 9 W. K. 9:,7 : 39 L. J., C." P. 58 ; 23 L. T. 49:'.. Iiitliis Er.ikinc v. Adcanc, L. l!., S Cli. Tr.t) ; 42 case the contract waste ])rocU!e till! assi,2;u- L. J., Cli. 849 ; 29 L. T. 234; 21 W. 1!. nientof a lease, but tlie principle is the same. 802 ; Burtsnll v. Binnchi, G.'l L. T. 678. (r) Mechelen v. Wallace, 7 A. & E. 49 (u) Ancfellv. Duke, 32 L. T. 320. (decided on demurrer). (;t) Adams v. Hagijcr, 4 Q. B. D. 480 ; (.S-) Vaucjhan v. Hancock, 3 C. B. 766. 27 W. R. 402— C. A. (<) ^"S'cWv. Z)«^•c, L. R., 10 Q. B. 174; {y) Holz v. Jioebitcl; 7 Taunt. L".7 ; 44 L. J., Q. B. 78 ; 32 L. T. 25. And see Doncllan v. Bead, 3 B. & Ad. 899 ; see Morgan v. Griffith, L. E., 6 Ex. 70; 40 also Lambert V. Norris, 2 M. & W. 333. 94 Chap. IV. — Agreement for Lease. Agreement for Lease must be in Writing. Ch.IV. Sec.1. nor be intended as a contract, or even as evidence thereof. A letter written by the defendant to the phxintiflf, which mentions all the material terms of the contract, ma}^ be sufficient, although the defendant thereby attempts to deny or repudiate his liability {z). A correspondence between the defendant and his own agent, which mentions all the material terms of the contract, may be sufficient («), and an authority was held sufficient where an offer was declined with an added consent (communicated to the intending tenant) to enter into the contract "i/"" the intending tenant "is very urgent" {h). A letter to a third person, mentioning all the material terms of the agreement, may be sufficient (c) ; but if any material terms of the con- tract be unsettled and disputed, the writing will not be sufficient {d). The bare entry of a steward in the lord's contract book with his tenants is not an evidence of itself that there is an agreement for a lease between the landlord and tenant (e). Writing must state all ma- terial Terms, e.g. Names. Description of '^ Tenant" and signature. (a) What the Agreement for a Lease must state. The agreement, or the memorandum or note thereof (as the case may be), mast state all the material terms of the contract {/), ex. gr. : 1. The name of the lessor or his agent (r/) ; and 2. The name of the lessee or his agent (It) : but in each of these cases such a description of the contracting parties that there cannot be any fair dispute as to their identity is as good as naming them. Such (i) seems to be the effect of the numerous cases (k) in which a contract for the sale of land describing but not naming the vendor, has been held good; and, as a lease is a sale pro tanto, these cases would seem to be equall}'' applicable to an agreement for a lease. Where the agreement was that Thomas Stokell should let a brick- field for an annual rent of 150L a 3'ear, " the tenant " to pay a royalt}' of sixpence per thousand for all bricks made after 70,000, and the (z) Bailey V. Sivccting, 9 C. B., N. S. 843; Wilkinson w. Evans, L. E., 1 C. P. 407 ; 35 L. J., C. P. 224 (these cases were under sect. 17) ; Jackson v. Oglander, 2 H. & M. 465 ; 13 W. R. 936. («) Gibson V. Holland, 35 L. J., C. P. 5. [b) Wood V. Ayhmrd, 58 L. T. 662— C. A., reversing Kekewicli, J. {c) Wclford V. Beazely, 3 Atk. 503; Child V. Comber, 3 Swans. 423, n. ; Sea- good V. Mcalc, Prec. Ch. 560 ; Barkv:orth V. Young, 4 Drew. 1, 13. {d) Forster v. Rowland, 7 H. & N. 103 ; 30 L. J., Ex. 396. (c) Charleivood v. Duke of Bedford, 1 Atk. 497. (/) Clarke, app.. Fuller, resp. (agree- ment insufficient), 16 C. B., N. S. 24 ; 12 W. P. 671 ; Ogilvie v. Foljambe (agree- ment sufficient), 3 Mer. 53 ; 17 R. R. 13. See Fry on Specific Performance, s. 486. ((/) Warner v. Willington, 3 Drew. 523 ; 25 L. J., Ch. 652 ; Williams v. Jordan, 6 Ch. U. 517 ; 26 W. R. 230. (Ii) Williams v. Lake, 2 E. & E. 349 ; 29 L. J., Q. B. 1 ; Skeltonv. Cole, I De Gex & J. 587. (i) See FoUer v. Duffield, L. R., 18 E(i. 4 ; 43 L. J., Ch. 472 ; 22 W. R. 585, per Jessel, M.R., in which "vendor" was held to be not of itself sufficient. {k) See Rossiter v. Miller, 3 App. Cas. 1124 ; 48 L. J., Ch. 10 ; 39 L. T. 173 ; 26 W. R. 855 ; ("proprietors" held sufficient description of vendors) ; Catling v. King, 5 Ch. D. 660 ; 46 L. J., Ch. 384 ; 36 L. T. 526 ; 25 W. R. 550— C. A. ; Commins v. Scott, L. R., 20 Eq. 11 ; 44 L. J., Ch. 536 ; 32 L. T. 420 ; 23 W. R. 498 ; Sale v. Lambert, L. R., 18 Eq. 1 ; 43 L. J., Ch. 740. In Thomas v. Brown, 1 Q. B. D. 714, the point also arose, but was not decided. Sect. 1. — Agreement for Lease must be in Writing. 95 agreement was signed " H. Niven, T. W. Stokell," it was held to be Ch.IV. Sec.i. binding on Niven on the ground that he coukl not have signed it in -J!/>-(e»ientfor ^ . ° Lease must be any other capacity than that of tenant {I). in iFritin//. 3. The writing must state the name or other description of the Writin" must property to be demised (m) ; but the property need not be so ^\^^^ descnp- described as to identify it ; parol evidence being always admissible Property. upon the question of "parcel or no parcel " (;i). "Mr. Ogilvie's house," maybe sufficient (o). "The property in Cable Street," coupled with parol evidence of identity, may be sufficient (_/)), and so may "the mill property, including cottages in Esher village " (r/), and " the lease and everything " for 60Z., coupled with parol evidence to show what lease was intended, and with a previous memorandum showing what "everything" meant (r). "Two seams of coal, known as the two-feet coal and the three-feet coal, lying under lands hereafter to be defined as the Bank End Estate," has been held sufficient, the latter words being construed to refer onl}' to the boundaries of the estate, and not to the seams of coal agreed to be demised (s). But where the agreement was indefinite as to the area over which the ironstone w^as to be worked, the court (for that and other reasons) refused a specific performance {t). An agreement by an incumbent to demise his glebe, containing about 437 acres, "except thirty-seven acres thereof" (which were not specified), was held sufficient, as the lessor, it was said, might elect which thirty- seven acres should be excepted («). A description of the property by reference to preceding deeds, wherein it is described, is sufficient (.r). A mere difference in quantit}' has never been held a bar to specific Difference in performance ; the Court of Chancery alwa3'S drew a distinction i-"^""ty. between the essential and non-essential terms of a contract, and allowed the incapacit}' to perform it in non-essential terms, to be made the subject of compensation. In McKcnzie v. Hesketh{y), for McKenzicw instance, the plaintiff oifered to take a lease of a farm of the defen- dant at a rent of 500/. per annum, sj^ecifying in his tender the closes which he wished to take, with acreage, amounting to 249 acres. The defendant's agent desired to let only 214 acres with his farm, {I) StokcUv. Nivai, 61 L. T. 18. {q) McMurray v. Sjnccr, L. R., 5 Eq. (vi) Stcivart v. AUiston, 1 Mer. 33 ; 527 ; 37 L. J., Ch. 505. 15 R. R. 81 ; Ogilvie v. Foljamhc, 3 Mer. (r) Horsey v. Graham, L. 1!., 5 C. P. 53; 17 R. R. 13 ; Kennedy v. Lee, 3 Mer. 191 ; 39 L. J., C. P. 58 : 21 L. T. 539. 441, 451 ; 17 P. R. 110 ; Danicl.iv. Davison, (s) Haywood v. 6'o/«;, 25 Rear. 140 ; but 16 Ves. 249 ; 10 R. R. 171 ; Frice v. Grijfith, see Lancaster v. De Trafm-d, 31 L. J., Ch. 1 De Gex, M. & G. 80 ; Haywood v. Coik, 554 ; 8 .Iiir., N. S. 873. 25 Beav. 140. (t) Lancaster v. De Trafford, supra. {%) Bleakley v. Smith, 11 Sim. 150 ; (h) Jenkins v. Green, 27 Beav. 437; 28 Owen V. Thomas, 3 Myl. & K. 353 ; Price L. J.. Ch. 817. V. Griffith, 1 De Gex, U. k G. 80. [.>•) Owen v. Thomas, 3 Uy\. k K. 353. (o) Ogi/vie V. Foljambe, 3 Mer. 61 ; 17 (y) McKcnzie v. Hcskcth, 7 Ch. D. 675 ; E. R. 13. 47 L. J., Ch. 231 ; 38 L. T. 171. {p) Bleakley v. Smith, 11 Sim. 150. Hesketh. 96 Chap. IV. — Agreement for Lease. Ch.IV. Sec.I. \)-^xi ijg accepted the plaintiff's offer without looking at the acreage, LealTmmthe although he had in fact let one of the closes to another person. in Writing. Another tender had been made by a former tenant for the same farm, as comprising 235 acres, and the defendant's agent admitted that he thought that the plaintiff had tendered for the same quantity as such former tender. The plaintiff sued for specific performance, but was willing to take a lease of 21i acres at a proportionately reduced rent, and Fry, J,, held that the defendant was bound to grant a lease of 214 acres, at a rent reduced from 500^. in the proportion of 214 to 235 {£). Defective If a party having title to a part only agrees to let a whole property, he will be decreed to let that part to which he has title, with an abatement of rent {a). Writing must The writing must state the term to be granted (&), and particularly to\e "ranteir ^^^® time from which the term is to commence (c) ; but it will be Commence- sufficient if such time can be inferred, as, for instance, if a day be ment. fixed for the payment of a first rent [d), or if it is connected with a prior writing by which a da}' is fixed (e), or even if a date orally agreed on at the time of the agreement be specifically agreed on in writing afterwards (/), It seems, too, that the court will execute an agreement to grant a lease for three lives unnamed {g). Agreement An agreement by a lessee to grant a sublease (not describing it as not to disturb ^ si(Mease) to an intending tenant at any period he might feel disposed, " and not to molest, disturb, or raise the rent " of the intending tenant after he had laid out money on the premises, was held, by the Court of Appeal, to entitle the intending tenant to a sublease for the residue of the term of the lessee, if the intending tenant should so long live Qi) ; but it has been held, also, that a somewhat similar agreement is merely personal between the parties, and does not bind a subsequent purchaser of the landlord's interest, with or without notice (i). (~) McKcnzie, v. Ileskdh, 7 Ch. D. 675 ; per Chitty, J. 47 L. J., Ch. 231 ; 38 L. T. 171. (d) See Wesley v. Walker, 38 L. T. 284; {a) Barrmu v. Hcammcll, 19 Ch. D. 175 : per Fry, J. 51 L. J., Ch. 296 ; 45 L, T. 606 ; 30 W. R. (c) See Wood v. Aylimrd, 58 L. T. 662 310. and p. 94, ante. — C. A. (h) BayJcy, Bart. v. Fitviaurice (in (/) JFhitc v. Hay, 72 L. T. 281, per error), 8 E. & B. 664 ; 9 H. I.. Cas. 78 ; Romer, J. Clman v. Cooke, 1 Sch. & Lef. 22 ; 9 R. E. 3 ; (y) Fitzgerald v. Vicars, 2 Dru. & W. Eughesv. Parker, 8 M. & W. 244 ; iDowL, 298 ; Dart V. & P. 1147 (6th ed.). N. S. 80; Clarke, app., Fuller, resp., 16 (/i) Kuscl v. Watson, 11 Ch. D. 129; C, B., N. S. 24 ; Baumannv. James, L. R., 48 L. J., Ch. 413 ; 27 W. R. 714, C. A. 3 Ch. 508 ; Dolling v. Evans, 36 L. J., Compare Wood v. Davis, 6 L. R. Ir. 50, Ch. 474 ; 15 W. R. 394. post. Chap. V., Sect. 6. " Construing this (c) Marshall v. Berridge, 19 Ch. D. 233 agreement," observed Brannvell. L.J., "is- (C. A.); 30 W. R. 93, affirimntr Blorc v. mere guess work." Sutton, 3 Mer. 237; 17 R. R. 74; and (i) Roberts v. Tregaskis, 38 L. T, 176, overruling /rt^Mesv. Millar, 6 Ch. D. 153 ; decided shortly before, biit not cited in Lander and Baglcy's Contract, In re, [1892] Ftiselv. Watson, from which, however, it 3 Ch. 41 ; 61 L. J., Ch. 707 ; 67 L. T. 521, seems to be distinguishable. Sect. 1. — Agreement for Lease must be in Writing. 97 The writing must also state the premium or fine (if any) agreed to be paid (A), and the rent to be paid (Z), and should also, though this is not absolutely essential, state whether the rent is to be paid quarterly (m), half-yearl}' or otherwise. If there be no stipulation on that point, it will be payable only at the end of each year of the term (»). Any special or unusual covenants or stipulations actually agreed on should be stated (o), and accurately expressed (jj). If the tenant agrees to improve the jDremises, the particulars of what he is to do (being a material part of the contract) must be sufficiently specified, so that a proper covenant may be inserted in the lease ; otherwise the contract will be too uncertain to be specifically enforced (q). An agreement, however, for the tenant to do certain specified works and " other works " upon the property, estimated at from 1501. to 200/., was held not too uncertain to prevent a decree for specific perform- ance, inasmuch as the specified works would cost nearly that sum(r). Vagueness in the language of an agreement may sometimes be cured by evidence of the surrounding circumstances, and of the subsequent conduct of the parties (s). Sometimes an " &c." will not render the contract too uncertain to be specifically enforced (t) ; but if the con- struction of the agreement depends on the meaning of an " Sec.,'' the court can make no decree (u). It seems that the common and usual covenants and provisoes need not be mentioned (x). They are implied as part of the contract, and may be added at chambers. An agreement, note or memorandum, which is defective in some or one of the above particulars stated to be essential, may sometimes be perfected by a prior (jj) or subsequent letter or other writing, on the part of the party to be charged (z), which sufficiently is {k) Martin v. Pycrnft, 2 De Gex, M. k G. 785 ; Wood v. Sca'rth, 2 K. & J. 33 ; Clifford V, Turrcll, 1 You. & Coll. C C. 138 ; Blurjdcn v. Bradbcar, 12 Ves. 466 ; 8 R. R. 354 ; Elmore v. Kingscotc, 5 B. & C. 583 ; 29 R. R. 341. [1) Woolam V. Hcani, 7 Ves. 211 ; Gregory v. Mvjlicll, 18 Yes. 328 ; 11 R. R. 207 (agi'eement for fair annual rent to be settled by arbitration, held sufficient) ; Poicell V. Lovcgrove, 8 De Gex, M. & G. 357. (m) Pilling v, Armitage, 12 Yes. 78 ; 8 R. R. 295. («) Coomhcr v. Hoioard, 1 C. B. 440 ; Collett V. Curling, 10 Q. B. 785 ; Gira-ud v. Richmond, 2 C. B. 835. (o) Fry, ss. 349, 350 ; Brodic v. St. Paul, 1 Yes. jun. 326. {p) Doe d. Marquis of Bute v. Guest, Bart., 15 INl. & W. 160 { Doc d. Marqicisof Bute V. TlwmjJson, 13 M. & "\Y. 494. {q) Gardner v. Fooks, 15 ^Y. R. 888, M.R. L.T. Ch.IY.Sec.1. Agreement for Lease must be in Writing. Rent. Spscial Covenants. "Et cetera." Defects in the "Writing supplied by a subsequent Writing. (?■) Baumann v. James, L. R., 3 Cli. A p. 508 ; 18 L. T. 424. (s) Oxford V. Provand, L. R., 2 P. C. C. 135 ; Coupland v. Arrowsmith, IS L. T. 755. (0 Parker v. Taswell, 2 De G. & J. 559 ; 27 L. J., Ch. 812 ; Cooi)cr v. Hood, 26 Beav. 299 ; Poivell v. Lovcgrove, 8 De Gex, M. & G. 357. (m) Price V. Griffith, 1 De Gex, JI. & G. 80 ; and see Tatham v. Piatt, 9 Hare. 660 ; Stuart V. London and Xorth Western K. Co., 1 De Gex, M. & G. 721. (,r) Church v. Brown, 15 Yes. at p. 265 ; 10 R. R. 74. See further as to " Usual Covenants," Sect. 7, post. ()/) Baumann v. James, L. R., 3 Ch. 508 ; 18 L. T. 424 ; here the acceptance was "at rent and terms agreed upon." (c) Cave V. Hastings, 7 C). B. D. 125 ; 50 L. J., Q. B. 575 ; Studds v. Watson, 28 Ch. D. 305 : 54 L. J., Ch. 626; 52 L. T. 129; 33 W. R. 118. 7 98 Chap. IV. — Agkeement for Lease. Cn.IV. Sec.I. Agreement for Lease must he in Writing. Supply of defects by subsequent writins:. Writings making up the Memo- randum must be signed by party to be charged. Effect of sup- plementary Writing which denies the contract. Effect of subsequent Alterations by parol. I'eferred to or refers to it, and supplies the defect (a). But where the plaintiff in a suit for specific performance jjut in two letters of the defendant, the first showing all the terms of the proposed' agree- ment for a lease, but omitting the date at which the occupation was to commence, and the second referring to the first as applying to a term to begin from " Michaelmas next," but adding several terms to which the plaintiff did not assent, the court refused specific perform- ance, although there was undisputed evidence that a complete verbal agreement had been made on the terms of the first letter, with the additional term of " Michaelmas next," and James, L.J., observed that the court "had gone quite far enough in enforcing specific per- formance upon the evidence of letters when one party is bound and the other not"(/>). Generalh' speaking, parol evidence is inadmissible to connect two writings which do not of themselves sufficiently refer to each other (c) ; but sometimes it may be admitted to negative the existence of any other writings on the subject, from which their relation to eacli other may be inferred (cZ). The signature of the party to be charged must appear in the writings which make up the memorandum required by the 4th section of the Statute of Frauds ; a supply of any of the essentials by the other party, though apparently acquiesced in by the party to be charged, is not sufficient. This is apparent from the words of the section, and is borne out by Williams v. Jordan (e), in which an offer addressed " Sir," which was signed by the intending lessees and Avitnessed by the intended lessor's agent, was held insufficient, although such agent informed the intending lessees in writing that their offer was '' accepted by the owner of the propert}'," thus concluding a contract at common law, though not a contract within the statute. A letter supplying such an essential term as an intending lessor's name but declming to complete, has been held sufiiciently to supplement a memorandum which it formerly withdrew (/), but this case has been doubted. Where there is a sufficient writing to satisfy the statute, but some of the terms of it are altered afterwards by i^arol, a specific (a) Warner v. Willwu/ton, 3 Drew. 523 ; 25 L. J., Ch. 662 ; Ridgway v. Wharton, 6 H. L. Cas. 238 ; 3 De Gex, M. & G. 677 ; 27 L. J., Oh. 46 ; Dohcll v. Hutchinson, 3 A. & E. 355 ; Kennedy w.Lec, 3 Meriv. 441 ; 17 R. R. 110. [h) Nesham v Sclby, 41 L. J., Ch. 551 ; L. R., 7 Ch. 406. (c) Skelton v. Cole, 1 De Gex & J. 587 ; Cliium V. Cooke, 1 Sch. & Lef. 22 ; 9 R. R. 3. . {(l) Ba,uinann v. James, L. R. , 3 Ch. 508 ; 16 W. R..877. . (c) Williams v. Jordan, 6 Ch. D. 517 ; 46 L. J., Ch. 681; 26 AY. R. 230. The letter was handed to the agent for deliveiy to the plaintiff, and it is presumed, not enclosed in an addressed envelope. Qurere, if it had been enclosed in an envelope addressed to the intended lessor by name, would that have been sufficient ? It is con- ceived not, inasmuch as parol evidence would have been necessary to prove the fact of enclosure. (/!) See also Goodman v Griffiths, 1 H. & N. 574. Sect. 1. — Agreement for Lease must be in Writing. 99 performance of the agreement as altered will not be decreed {g). The Cii.IV. Sec.i. reason is, that contracts within the -ith section of the Statute of ^i^greementfor Frauds must be wholly proved b}' writing {h). To allow such a con- in Writing. tract to be proved parth' by writmg and parti)'' by oral testimony, would let in all the mischiefs which it was the object of the statute to exclude {i). But if the new terms were merely intended to modify the original agreement, and were inoperative for that pur- j)ose, it seems that a specific performance of the original agreement may be decreed (A) . Where a plaintiff alleges a written agreement, with the parol variation in favour of the defendant, and offers to perform the agreement with the variation, the court will enforce specific performance, although the defendant insists on the statute {I). In such case the court will decree specific performance with the variations, if the defendant elect to take advantage of them ; or otherwise of the original agreement {m). It is to be observed, that the Statute of Frauds does not say in distinct terms that all con- tracts or agreements concerning the sale of lands shall be in writing ; all that it enacts is, that no action shall be brought unless they are in writing ; and as there is no clause in the act which requires the dissolution of such contracts to be in writing, a written contract concerning the sale of lands may be wholly rescinded by a new agreement not in writing, so as to prevent either party from recover- ing on the contract which was in writing, though it cannot be parti}' rescinded b}' a new contract not in writing (»). (b) Hoiv Agreements may he signed. An agreement for a lease must, by virtue of the 4th section of the Statute of Frauds above referred to, be signed hy the partjj to he charged therewith, or his agent thereunto lawfully authorized. It need not be signed by both parties (o). The signature may be in Signature. almost any part of the writing {p) : provided it is so placed as to govern and authenticate every material and operative part of the instrument; but not where it applies only to the particular part if/) Jordan v. Saivking, 1 Yes. jiin. 402 ; but see Clarke v. Moore, 1 Jon. & Lat. 7-23 3 Bro. C. C. 388 ; Price v. Salusbury, 32 —729 ; Fry, ss. 1010, 1013. Beav, 446; 32 L. J., Ch. 441 ; atiirmed (/) Martin y. Py croft, 2 'O^G^^, M. & G. Dora. Proc, 14 L. T. 110. 785 ; Dart V. k P. 1148 (Gth ed.). [h) Foquctv. Moor, 7 Excli. 1870; Goss {m) Pobinsoii v. Paqc, 3 Russ. 114 ; 27 V. Lord Nugent, 5 B. & Adol. 58 ; Harvey R. R. 26 ; Dart V. & P. 1212 (6th ed.). V. Grahham, 5 A. & E. 61 ; Stoiccll v. Robin- {n) Goss v. lord Nugent, 5 B. & Adol. son, 3 Bing. X. C. 928. 64. (z) Stead v. Dawber, 10 A. & E. 57. (o) Boys v. Aycrst, 6 Madd. 323 ; Scton (k) Price V. Dyer, 17 Ves. 356 ; 11 R. R. v. Sladc, 7 Yes. 265 ; 6 R. R. 124 ; Lay- 102 ; O'Connor v. SiMight. 1 Sch. & Lef. thorp v. Bryant, 2 Bing. N. C. 735. 305 ; Marshall v. Lynn, 6 il. & AY. 109 ; (p) Frv, s. 498 •; Propcrt v. Parkxr, 1 Moore v. Campbell, 10 Exch. 323 ; Noble v. Russ. & Myl. 625 ; Bleaklcy v. Smith, 11 Ward, L. R., 1 Ex. 117 ; 35 L. J., Ex. 81 ; Sim. 150. 7 — 2 100 Chap. IV. — Agreement for Lease. Ch.IV.Sec.1. Agreement for Lease must he in Writ'mg. Signature by Agent. Eatificcation. Specific per- formance by agent personally. where it is introduced (g). A signature in pencil (r), or by initials (s), or by print (0, seems to be sufficient, and so does the signature of a marksman (?0. A signature by an agent, thereunto "lawfull^y authorized," is sufficient, by the very terms of the 4th section of the Statute of Frauds, and such authority need not be in writing {x) . But the authorit}' of the agent to sign such contract must be proved, if disputed (y). Such authorit}- is revoked by the death of the prin- cipal, although the agent does not know of the death (z). Proof of a subsequent ratification will be sufficient evidence of a prior authority (a), and an oral revocation of any such authority may be proved (b) : unless the agent was appointed by deed ; and j^erhaps even then (c). It has been held too that if between the acceptance of an offer by an agent unauthorized to accept it, and the ratifica- tion of such acceptance by the principal, the offeror withdraw his oflfer, the withdrawal is bad, b}' reason of the rule omnis ratiJdhitio retrotrahitur et mandato (equiparatur , and the offeror will be held bound by the contract concluded by the offer {d) and unauthorized acceptance and ordered specifically to perform it. An agent who contracts in his own name may sometimes be com- pelled specificallj' to perform the contract (e). Sect. 2. — The Stamping of the Agreement for a Lease. Agreement It is material to observe that the consolidating Stamp Act, 1891 ^ fo? Lease not 54 ^^ 55 yi^t. c. 39, by s. 75, which exactly re-enacts s. 96 of more than 35 , . ' . . , Years must be Stamp Act, 1870, also a consolidatmg act, imposes the same stamp Lease ^^ upon an agreement for a lease as it imposes upon a lease itself (except in the case where the term exceeds 35 years), and imposes upon a lease made in conformity with an agreement duly stamped, the duty of sixpence only (/) . {q) Caton v. Caton, L. R., 2 H. L. Oas. 127 ; 36 L. J., Ch. 8S6. (?•) Lucas V. James, 7 Hare, 410. (s) Selby v. Selby, 3 Mer. 2 ; 17 R. R. 1. It) Schneider v. Norris, 2 M. & S. 286 ; 15 R. R. 250. (u) See Baker v. Dening. 8 A. & E. 94. (x) Coles V. Trecothick, 9 Ves. 234, 250 ; 7 R. R. 167 ; Clinan v. Cooke, 1 Sch. & Lef. 22 ; 9 R. R. 3 ; Dyas v. Cruise, 2 Jon. & Lat. 461 ; Heard v. Pilley, L. R., 4 Ch. 548, {y) Blorc v, Sutton, 3 Mer. 237 ; 17 R. R. 74 ; Eidgivai/ v. Wharton, 3 De Ge.x, M. & G. 677 ; 27 L. J., Ch. 46 ; 6 H. L. Cas. 238 ; Forstcr v. Koivland, 7 H. & N. 103 ; 30 L. J., Ex. 396 ; Mines v. Ewing, 35 L. J., Ex. 194. (2) Carr v. Levingston, 35 Beav. 41. (a) Fry, s. 509 (4) ; Maclean v. Dunn, 4 Bing. 722 ; Ridgicay v. Wharton, 6 H. L. Cas. 238, 296 ; Bayley, Bart. v. Fitz- maurice, 8 E. & B. 664 ; 9 H. L. Cas. 78. {b) Manser v. Back, 6 Hare, 443 ; Ven- ning V. Bray, 2 B. & S. 502; 31 L. J., Q. B. 181. (c) Venning v. Bray, supra. (d) Bolton Partners v. Lambert, 41 Ch. D. 295 ; 58 L. J., Ch. 425 : 60 L. T. 687 ; 37 W. R. 434 — C. A., questioned in Additional Note A. of 3rd ed. of Fry on Specific Perform- ance, but never judicially doubted. The case was one of contract to sell, but its prin- ciple is equally applicable to that of a con- tract to let. (c) Saxon v. Blake, 29 Beav. 438. (/) See post, Appendix A. The law,. Sect. 2. — Stamping of the Agreement for a Lease. 101 The IStli section of the Stamp Act, 1891, re-enacting the 18th Ch.IV. Sec.2. section of the Customs and Inland Revenue Act, 1888, 51 & 52 Vict. Stamping of • the ^j.07*C3iHB}l£ c. 8 (treated hereafter ((/) ), nnposes the penalty of ten pounds, to for a lease. which the intending lessee is liable, for not duly stamping a lease Penalty for executed after the 16th of May, 1888, and the 75th section of °ot stamping the same act imposes upon an ordinary agreement for a lease, as for Lease, above mentioned, the same stamp as that imj)osed on the lease agreed for. It is conceived, however, that the special penalty of ten pounds which is imposed on the lessee eo nomine by the 15tli section is recoverable from a lessee only, and that a party who merely agrees to become lessee is not subject thereto. It seems that a written proposal accepted orally need not be Effect of Oral stamped as an agreement (li). But it is otherwise with respect to a of wnSen^ document signed by one party only, but intended either as a contract, pioposal. or as evidence of a contract, and not as a mere proposal (/). When an oral proposal is accepted in writing, such accejDtance must be stamped as an agreement (A;)- Sect. 3. — Remedies for Breach of Agreement. Questions have frequently arisen whether a particular instrument Lease or is to be construed as an actual lease or as an agreement for a lease. ° A few of the numerous cases upon the subject will be noticed presently (Z) . The general result of them may be taken to be that the intention of the parties, as expressed in the instrument, is to be looked to, and that where a document cannot by law operate as a lease, the leaning of the com*ts is to construe it, if possible, as an agreement {m). There are two remedies for breach of a valid contract or agreement Two Remedies for a lease, either of which, but not both, may generally be adopted Aoi-eement by the intended landlord, or by the intended tenant, as the case may ^°i' Lease. require, viz. : — 1. An action to recover damages for the breach (n). 2. An action to compel a specific performance of the agreement. before 1870, 23 Yict. c. 15, by which agree- them discussed in Davidson on Convey- meiits for leases were first stamped as leases ancing, vol. v., pt. 1, pp. 1 — 16. (being under 13 & 14 Vict. c. 97, subject to {m) Tidey v. Mollett, 16 C. B., N. S. 298. the common agreement stamp only), ex- {n) By Landlord, &c. — Boml v. Ros- cepted leases for not more than seven years Jing, 1 B, & S. 371 ; 30 L. J,, Q. B. 227 ; from a similar provision. Foster v. Eowktnd, 7 H. & N. 103 ; 30 [g) Post, Chap. Y., Sect. 13. L. J., Ex. 396; Collins v. Willmott, 13 (/t) Drant v. Broivn, 3 B. & C. 665 ; W. R. 204 ; Dc Medina v. Norman, 9 M. & Laing v. Smith, 3 E. & F. 97. W. 820 ; 2 D. & L. 239 ; Soutcr v. Drake, (i) Chanter v. Dickinson, 5 M. & G. 253 ; 5 B. & Adol. 992 ; Kintrca v. Preston, 1 2 DowL, N. S. 838 ; Hcqarty v. 3Iilne, 14 H. & N. 357 ; 25 L. J., Ex. 287 ; Cocking C. B. 627. V. JVarcl, 1 C. B. 858. By Tenant, &c. (k) Athcrstonc v. Bostock, 2 31. & G. 511 ; —RoUason v. Leon, 7 H. & X. 73 ; 31 L. J., Chanter v. Dickinson, supra ; Hegarty v. Ex. 96 ; Hayvsard v. Parke, 16 C. B. 295 ; Milne, supra. Jinks v. Edwards, 11 Exch. 775 ; Hall v. (0 Chap. Y., Sect. 4, post. And see Betty, 4 M, & G. 410. 102 Chap, IV. — Ageeement for Lease. Ch. IV. Sec. 3. Remedies for Breach of Affreement . Breach by Lease to other Party. Ford V. Tilcy. InsufFicienc}' of Title. Intended Lessee may not call for Title, V. & P. Act, 1874, Defences to Action for Breach. In what Court Action for Damages. An intended tenant ma_y, in an action for damages, recover back any premium paid by him (o). Even where the agreement is oral, money expended by an intending tenant in pursuance of it, ex. gr. mone}^ laid out upon alteration of the premises agreed to be demised, is recoverable as upon a failure of consideration (jj). If the intending landlord disables himself from granting the lease agreed upon by making an actual and inconsistent lease to another party before the day arrives for the granting of the lease agreed upon, he may be sued at once b}^ the intending tenant for a breach of con- tract in making the actual lease {q) . At common law the intending lessor, by agreeing to grant a lease, impliedly contracted that he had title to grant the lease, and if he had not, he was liable to an action at the suit of the intended lessee (7*), although the intended lessee, by a contract for sale of the agreement, was bound by no implied condition that the intended lessor had title (s). By the Vendor and Purchaser Act, 1874 (37 & 38 Vict. c. 78), s. 2, it is enacted that " under a contract to grant or assign a term of years, whether derived or to be derived out of a freehold or leasehold estate, the intended lessee or assign shall not be entitled to call for the title to the freehold, &c. ; " and by the Conveyancing Act, 1881 (44 & 45 Vict. c. 41), " on a contract to grant a lease for a term of j'ears, to be derived out of a leasehold interest, with a leasehold reversion, the intended lessee shall not have the right to call for the title to the leasehold reversion." These enact- ments do away with the common law rule, the first applying to the case where the intended landlord is a freeholder, and the second to the case where he is a leaseholder. It is a good defence to an action for breach of an agreement to let premises that the intending tenant intended to use them for a purpose forbidden by law, ex. gr. for the delivery of lectures in contravention of the Blaspheni}- Act {t). The action for damages may be brought in any division of the High Court, but if it be tried before a judge with a jury, the trial will be had before a judge of the Queen's Bench Division (»)• If the plaintifl" claim 50L or less as damages, the action may be brought in the County Court (=r). (o) WriqU v. Colh, 8 C. B. 150 ; 19 L. J., C. P. 60. {p) Pulbrook V. Lmces, 1 Q. B. D. 284 ; 45 L. J., Q. B. 17 ; 34 L. T, 95 ; see also Worthington v. JVan'ingtoii, 8 C. B. 134 ; Robinson v. Harman, 1 Ex. 850'. {q) Ford v. Tilcy, 6 B. & C. 325 ; 5 L. J. K. B. 169 ; 30 E. R. 339 ; see, too. Frost V. Knight, L. R., 7 Ex. IIL (r) Stranks v. St. John, L. R., 2 C. P. 376 ; 36 L. J., C. P. Ill ; 16 L. T. 283; 15 W. R. 678. (s) Kintrca v. Preston, 1 H. & N. 357; 25 L. J., Ex. 287. {t) Cowan y. Milbourn, L. R., 2 Ex. 230; 36 L. J., Ex. 124. {u) Judicature Act, 1873, ss. 29 37; Warner v. Murdock, 4 Ch. D. (C. A. 750. (X) County Courts Act, 1888, 51 & 52 Yict. c. 43, s. 56. Sect. 4. — Action for Specific PEEFORiiANCE. 103 Sect. 4. — The Action for Specific Performance. Actions for the specific performance of contracts for leases are by sect. 34 of the Judicature Act, 1873, assigned to the Chancery Division of the High Court. If a defendant claim specific perform- ance b}" way of counter-claim in an action brought in a division other than the Chancery Division, the action will probably be trans- ferred to that division {y). If the value of the property agreed to be demised do not exceed 500L, the action for specific performance may be brought in the County Court {z). Damages may be awarded either in addition to or in substitution for specific performance. For by the Judicature Act, s. 24, sub-s. 7, the High Court has power to grant, and " shall grant," either abso- lutely or on conditions, " all such remedies whatsoever as any of the parties " to a cause may appear to be entitled to in respect of any and every legal or equitable claim properly brought forward. Prior to this act, it had been enacted by 21 & 22 Yict. c. 27, s. 2 (Lord Cairns' Act), that " in all cases in which the Court of Chancery had jurisdic- tion to entertain an application for an injunction against a breach of anv covenant, contract or agreement, or against the commission or continuance of any wrongful act or for the specific performance of any covenant, contract or agreement, it should be lawful for the same court, if it should think fit {a), to award damages to the party injm-ed, either in addition to, or in substitution for, such injunction or specific performance {h). Under this act it was held that a court of equity could give damages only where it could decree specific per- formance or grant an injunction (c), and that Avhen the plaintiff failed to establish any covenant, contract or agreement, of which specific performance could be directed, the court had no jurisdiction to grant relief in damages {d), but the terms of s. 24, sub-s. 7 of the Judicature Act appear to be more comprehensive ; and it is apprehended that in a simple case the Queen's Bench Division would grant specific performance {e). iy) R. S. C, Order LI. And see Id. App. C, Foriiis of Pleading,- No. 24 ; BiUman v. Mayheio, 1 Ex. D. 132 ; 45 L. J., Ex. 334 ; 34 L. T. 256 ; 24 W. R. 435. {z) County Courts Act, 1888, s. 67, sub-s. 4, re-enacting s. 9 of the County Courts Act, 1867 (30 & 31 Yict. c. 142), which act expressly inchuled an agreement for a lease, held in IVilcox v. Marshall, L. R., 3 E(j. 270, to be impliedly included by the County Courts Act, 1865, amongst the matters in which an e(|uitable jurisdic- tion was given to county courts. («) See Durdl v. Pritchanl, L. R., 1 Ch. 244 ; 35 L. J., Ch. 223. [h) This act is repealed by the Statute Law Revision and Civil Procedure Act, 1883, 46 & 47 Vict. c. 49, but the jurisdic- tion thereunder is still in force either bj' virtue of the Judicature Act or s. 5 of the act itself. Per Bagyallay, L.J., in Sayers V. Cvllycr, 54 L. J., Ch. 1. (c) Ferguson v. Wilson, Ji. R., 2 Ch. 77 ; 15 W. R. SO. ((/) Lciccrs V. Earlof Shaftcshiiry, L. R., 2 E. ISSS), to eachof which works frcijuent reference will be made. 106 Chap. IV. — Agreement foe Lease. Ch.IV.Sec.4. Hpemjic Performance of Agreement for Lease. Time, whether Essence of Contract. Sublease. specific performance ; 2. Whether the proposed evidence is sufficient ; 3. Whether any and what notice shoukl be given, or demand made, or draft lease tendered or other act done {z) by the complainant before the commencement of the action ; 4. Who should be plaintiff or plaintiffs, and who should be made defendant or defendants ; 5. On whom the costs of each party will probably fall ; 6. Whether any other and what remedy is preferable. An action for specific performance cannot be maintained after the plaintiff has recovered damages for non-performance of the con- tract (rt) ; but he may apply for alternative remedies in the same action. Time is not generally considered as of the essence of the con- tract (^). "A court of equit}' will indeed relieve against, and enforce, specific performance, notwithstanding a failure to keep the dates assigned by the contract, either for completion, or for steps towards completion, if it can do justice between the parties, and if there is nothing in the express stipulations between the parties, the nature of the property or the surrounding circumstances, which would make it inequitable to interfere with and modify the legal right. This is what is meant, and all that is meant, where it is said, that in equity time is not the essence of the contract " (c). An underlease with compensation will not be decreed where the defendant has contracted for a lease {d). Oral Agree- ment with part Per- formance. (a) Oral Agreement luith imrt Performance. Although a mere oral agreement for a lease cannot be sued upon as such, an action for a specific performance can be maintained if the terms of such agreement be distinctly proved or admitted, and there has been a sufficient part performance of the contract to take it out of the operation of the Statute of Frauds (f). The principle upon Avhich courts of equity exercise their jurisdiction in decreeing specific performance of a parol agreement accompanied by part performance, is the fraud and injustice which would result from allowing one party to refuse to perform his part, after part performance by the other upon the faith of the contract (/). (s) AuUn V. Holt, 2 Kay & J. 66, 70 ; 25 I J. J., Ch. 36 ; Fcndkner v. Llcivellyn, 31 L. J., Ch. 549 ; Lancaster v. Dc Traf- ford, 81 L. J., Ch. 554 ; Forrer v. Nash, 35 Beav. 167 ; 14 W. K. 8. Sometimes the concurrence (in a lease) of a third person liaving an equitable interest in the property may be necessary : Reeves v. Gill, 1 Beav. 375. (a) Sainter v. Ferguson, 1 Mac. & Gor. 286 ; Fry, s. 94 ; Dart V. & P. 1217. {b) Dart V. & P. Chap. X. ; Fry, s. 1057 ; Davis V. Hone, 2 Sch. & Let". 341, 347 ; 9 R. R. 89 ; Cartaii v. Bury, 10 Ir, Ch. R. 387 ; Wehh v. Hughes, L. R., 10 Eq. 281 Malins, V.-C. (f) Tilley v. Thomas, L. R., 3 Ch, 61, 67 ; Iloberts v. £errij, 3 De Gex, M. & G. 284. (d) Madeley v. Booth, 2 De G. & Sni 718 ; Darlington v. Hamilton, 1 Kay, 557 558. ((') Fi-y, ss. 555: — 614 ; Price v. Salus bury, Bart., 32 Beav. 446 ; 32 L. J., Ch 441 ; affirmed Dom. Proc, 14 L. T., N. S 110. (/') Buckmastcr v. Harroji, 7 Ves. 341 6 K. K. 132 ; 9 R. R. 212 ; Munday v Sect. 4. — Action for Specific Performance. 107 In equity the acts of part performance must be such as are referable to the contract as alleged, and consistent Avith it (g) ; and such as cannot be referred to an}^ other title than the alleged agreement, nor be considered done with any other view or design than to perform it (h). Therefore the mere possession by the tenant is not sufficient, because that may be referred to his character as tenant, under the implied tenancy created b.y entry (/). So the expenditure by the tenant of moneys on the farm in the ordinary course of husbaiuhy, is no j)art performance of an agreement for a lease, but attributable to his implied tenancy (A). But possession and special expenditure by the tenant, pro\dded that it be such that would be likely to take place only in the pursuance of such a contract as that alleged, and it be with the privity of the other party, is an act of part performance : as where the tenant enters and builds, or causes expensive alterations to be made (/). An outlay b}' a sub-lessee, made with the knowledge and approval of the party agreeing to grant the lease, has been held to be as much part performance as if it had been the outlay of the tenant himself (;»)• The laying out of considerable sums of mone}^ by a person who enters under an agreement for a long term, is rationally to be referred to such agreement, rather than to the mere tenancy at will to be implied from such entry (»). After such expenses have been incurred on the faith of a lease agreed to be granted, it would be fraudulent and inequitable for the landlord to refuse to grant such lease (o) ; but this cannot be said of the ordinary expenditure of a tenant. Where a tenant under a term alleged the rebuilding of a party-wall, which was in a ruinous state during his term, as part performance of an agreement by his landlord to grant a renewed term : it was held, that the act was equivocal, as it might have been done by him as Ch.IV. Sec. 4. Specific Performance of Agreement for Lease. What Acts of Part Performance are or are not sufficient. Outlay by Sub-lessee. Joliffc, 5 ilyl. & Cr. 177 ; Gregory v. Wilson, 2 Hare, 690 ; Fry, s. 562 ; Wilson V. West Hartlepool R. Co., 34 L. J., Ch. 241 ; 13 W. R. 361, L.JJ. ; Catonv. Caton, L. Pu, 1 Ch. 137, 148. [g) Frj', s. 559 ; Tomkinson v. Straight, 17 C. B. 697 ; Faulkner v. Llciccllyn, 31 L. J., Ch. 549 ; 11 AV. R. 1055 ; 12 W. R. 193 ; Fowell v. Lovegrove, 8 De Gex, M. & G. 357 ; Price v. Salushunj, 32 Beav. 446 ; 32 L. J., Ch. 441 ; affirmed, Dom. Proc, 14 L. T. 110 ; Nunn v. Fabian, L. K., 1 Ch. Ap. 35, 40; 35 L. J., Ch. 140. (//) See Madclison v. Alderson, 8 App. Cas. 473 ; 52 L. J., Q. B. 737 ; 49 L. T. 303 ; 31 W. R. 820. (i) Wills V. Stradling, 3 Ves. 378; 4 R. R. 26 ; Morphett v. Jones, 1 Swans. 181 ; Faulkner v. Llewellyn, 31 L. .!., Ch. 549; 12 W. R. 193; 5 Yin. Abr. 323, pi. 41 ; but see Pain v. Coombs, 3 Sm. & Giff. 449 ; 1 De Gex & J. 24 ; 3 Jur., iS*". S. 307, 847; Miller \. Finlay, 5 L. T. 510. (/,') Brennan v. Bolton, 2 Dru. k \X. 349 ; Fry, s. 561. (J) Wills V. Stradling, 3 A'es. 378 ; 4 R. R. 26 ; Stockley v. Stocklcy, 1 \. & B. 23 ; 12 R. R. 184 ; Toole v. Medlicott, 1 Ball & B. 393 ; Sutherland v. Briggs, 1 Hare, 26 ; Mundy v. Joliffe, 5 Jtlyl. & Cr. 167 ; Surcomc v. Pinnigcr, 3 De Gex, M. & G. 571 ; and see Farrell v. Daveiijmrt, 8 Jur., N. S. 862, 1043. (m) Williams v. Evans, L. R., 19 £([. 547 ; 44 L. J., Ch. 319. {n) Fry, s. 585 ; Farrell v. Daveiqiort, 3 Gitf. 363 ; 8 Jur., N. S. 862, 1043. (o) Frame v. Dawson, 14 Ves. 386 ; 9 R. R. 304 ; Lindsay v. Lynch, 2 Sch. & Lef. 1 ; see Williams v. Evans, 32 L. T. 360. 108 Chap. IV. — Agreement for Lease. Ch.IV. Sec.4. Hpecifie Performance of Agreement for Lease. Payment of increased Rent. Nunn V. Fabian. Continuance of possession taken before parol contract. New Lease, &c. Terms must be certain. well in respect of his title under the old term, as under the alleged agreement for a renewed term {p). In Nunn v. Fahian, a landlord having verbally agreed with his tenant to grant him a lease for twenty-one years at an increased rent, with the option of purchasing the freehold, died before the execution of the lease. Before his death the tenant had paid one quarter's rent at the increased rate. It was held, that this constituted a suffi- cient part performance of the agreement to take the case out of the Statute of Frauds, and specific performance was decreed (q). Continuance of possession taken before the parol contract may, if unequivocally referable to the contract, constitute part performance. This was held by Kekewich, J., in a case where the terms of the oral contract had been put into a draft lease embodying with a very slight exception the expressed intention of both parties, where the intending tenant was let into possession the day before the draft lease was read to the intending landlord by the intending tenant's solicitor who had prepared it, where the intending tenant had executed a counterpart, but the intending landlord had not executed the lease, and where rent had been regularly paid in accordance with the draft lease (r). "Where an agreement in writing for a three years' tenancy reserved to the tenant the option of requiring a twenty-one years' lease at the expiration of the prior term, V.-C. Wigram appears to have considered that the tenant's verbal notice of an intention to take the new lease, accompanied by retention of possession, was binding upon him (s). The possession of a tenant after the expiration of his lease, under an agreement for a renewed lease, has been held a sufficient part per- formance (t), and so has the possession of a stranger under an express or implied agreement for a lease (w). It has also been held, that the giving up a business, coupled with possession, was jaart performance, although the tenant agreed to pay nothing but ground rent, rates and taxes (.r). But the court will not decree a specific performance, although possession has been taken, unless the terms of the contract are clearly proved (y) ; nor if any of the terms are uncertain (0) ; although vagueness of language in a contract may sometimes be cured by (l>) Frame v. Daicson, and Lindsay v. Lynch, supra. [q) Kunn v. Fahian, L. R., 1 Cb. 35 ; 35 L. J., Ch. 140. Compare this with Re National Savinys Bank Association, Ex 2mrtc Brady, 15 \V. R. 753. (r) Hodsonv. Heuland, [1896] 2 Ch. 428 ; 65 L. J., Ch. 754 ; 74 L. T. 811 ; 44 W. R. 684, per Kekewich, J. («) Bcatson v. Nicholson, 6 Jur. 620. [t) Dowell V. Lew, 1 You. & Coll. C. C. 345 ; Dart V. & P. 1136—1137. {u) Fry, s. 578 ; Gregory v. Mighcll, IS Ves. 328 ; 11 R. R. 207 ; Pain v. Coomls, 3 Sm. & Gif. 449 ; 1 De Gex & J. 34, 46 ; 3 Jur., N. S. 307, 847. (.!■) Coles V. Pilkington, L. R., 19 Eq. 174 ; 31 L. T. 422. iy) Mortal v. Lyons, 8 Ir. Ch. R. 112. (~) Beynolds v. Waring, 1 You. 346 ; Price V. Asshcton, 1 Y. & C. 441. Sect. 4. — Action for Specific Performance. 109 evidence of surroimding circumstances, and of the subsequent conduct Ch. IY. Sec. 4. of the parties («). The doctrine of part performance of a parol Specijic . ,... Ferjontiance agreement is not to be extended by the court, and it is inapphcable of Agreement in a case where a trustee has a power to lease at the request in /<"• Lease. writing of a married woman, which has not been made (&). In Shillibeer v. Jarvis, after an offer had been made by a plaintiff Execution ot to take a lease of a farm from the defendant, a draft was prepared !^,t"^" , . . 1 /> . Shilhbeer v. by the defendant's solicitors, and approved of by the plaintiff with jarvis. some alterations, and was afterwards altered by the defendant himself, and left by him with his solicitors, for the purpose of its being ascertained whether the plaintiff" would agree to the alterations. On their submitting it to him he agreed to the alterations, but no agree- ment was signed. A part of the terms was, that the plaintiff should execute certain repairs before the lease was granted. The plaintiff was put into possession by the direction of the defendant's solicitors, and executed some repairs. It was held, that although the plaintiff might have been let into possession without authority from the defendant, there was a concluded agreement for a lease on the part of the defendant, and a sufficient part performance to take the case out of the Statute of Frauds, and specific performance was decreed (c). AVhere the plaintiff and the defendant agreed that when a certain house belonging to the plaintiff should be completed and finished fit for habitation, the plaintiff would grant to the defendant a lease of such house for twent^'-one years, and the defendant took possession before the house was completed, and occupied it for a year; but refused to pay rent or execute the lease until the house should be completed and finished fit for habitation : whereupon the plaintiff filed a bill for specific performance, and moved that the defendant might be ordered to pay the year's rent into court ; the motion was refused with costs (d). Of course the oral agreement, of which the part performance is Oral Agree- Ti .-i r 1 , . i^'. 1 !•,• ment must be relied on, must be of sucli a nature, i.e, so definite and unobjection- definite. able, that if it had been in writing, and duly signed, the court would have decreed specific performance of it (e). (b) There must he a complete Contract. "Whether the contract be proved by one or more writings (/), or by There must be parol evidence, coupled with sufiicient acts of part performance (^), V^Q^if^^l*^ (a) Oxford v. Provand, L.R., 2 P. C. C. Cb. 549 ; 11 W. R. 1055 ; 12 W. R. 193 ; 135; Cou]}land X. Arrowsmith, IS L. T. and see Mndhnx. Syioicball, 29 Bear. 6il I 755. 31 L. J., Ch. 44 ; 4 De Gex, F. & J. 143. {b) Phillips V. Edicards, 33 Beav. 440. (c) Fry, ss. 572—573 ; Thynne v. Ld. (c) Shillibeer v. Jarvis, 8 De Gex, Ghnrjall, 2 H. L. Cas. 158. M. & G. 79. (/■) Ante, p. 97. {d) Faulkner v. Llcv:dhjn, 31 L. J., (r/) Ante, p. 106. 110 Chap. IV. — Agreement for Lease. Ch. IV. Sec. 4. Specific Ferfornuoicc of Agreement for Lease. Escrow. Unaccepted Proposal. What Acceptance is sufficient. Revocation of Proposal. Etiect of Acceptance. Counter- proposal. there must, in each case, be a comjjlete contract (h). An escrow or writmg, delivered subject to a condition which has not been per- formed, is not sufficient (i). A mere proposal to offer or take a lease does not, before acceptance thereof, constitute a complete contract. The acceptance, to be operative, must be unequivocal, unconditional, and without variance of any sort between it and the proposal (A:), and communicated to the other party within a reasonable time (/). The proposal or offer may be revoked at any time before such accept- ance {m) ; but not afterwards (/i) . Unless the proposal or offer be accepted without unreasonable delay a revocation thereof may be im- plied ; for, in the absence of any special stipulation to the contrary, it is always subject to an implied condition that it be accepted within a reasonable time, what time is reasonable being a question of fact (o). An unaccepted offer does not bind the land, nor the trustees of the person making the offer, on his becoming a bankrupt (j))- So long as a proposal or offer is an existing one, i.e. until it has been accepted or revoked, expressly or b}" implication, the other party may, by accepting it purely and simply, without any addition or other altera- tion whatever, make it an agreement (q) ; nor is an acceptance by writing necessary (r), unless, indeed, by the terms of the proposal, an agreement or contract in ivriting is to be made (s). An acceptance of a proposal or offer, subject to any new term or other variation, amounts only to a counter-proposal, which must be accepted purely and simply before there will be any complete agree- ment (t). Where the proposal or offer is agreed to, but a different day is named for possession to be given, that is not sufficient as an acceptance (u). The acceptance of a proposal for a lease, adding, "We hope to give you possession at half-quarter day," has been held sufficient, the latter words having no legal operation {x). But . (h) Jackson v. Oglandcr, 2 H. & M. 465 ; 13 W. E. 936 ; Leivers v. Ectrl Shaftes- bury, L. R., 2 Eq. 270 ; 16 L. T. 135 ; BankartY. Tcima nt, S9 L. J., Ch. 809; 23 L. T. 137. And ,see generally, Chitty on Contracts, 13th ed., Ch. II., sect. 1. (i) Whcate v. Hall, 17 Ves. 80 ; Pym V. Campbell, 6 E. & B. 370 ; Ckcdcfcn v. Besscit, Id. 986 ; JVillcrsJiij) v. Brooks, 5 H. & N. 797 ; 27' L. J., Ex. 369. ik) Fry, ss. 269—316; JFarncr v. Wil- lington, 3 Drew, 523 ; 25 L. J., Ch. _ 662 ; (sending of draft lease held not sufficient) ; Foster V. Bmvland, 7 H. & N. 103 ; 30 L. J., Ex. 396. ' {I) See Brogden Y. Mctro'poUtan B. Co., 2 App. Cas. 692. (m) Warner w. Willington, 3 Drew. 523 ; 25 L. J., Ch. 662 ; Jackson v. Oglandcr, 2 H. & M. 465 ; 13 AV. R. 936 ; "Bammeiis V. Bobbins, 11 Jur., N. S. 631 ; 13 W. R. 979, L.JJ. (n) See Baincs v. Wood fall, 6 C. B., N. S. 657 ; Cowley v. Watts, 17 Jur. 72, M.R. (o) Williams v. Williams, 17 Beav. 213. [p) Meyncll v. Surtecs, 2 Sm. & Giff. 101 ; 1 Jur., N. S. 737. (c/) Baumann v. James, L. R., 3 Ch. 508"; 16 W. R. 877. ir) See Bcuss v. Picksley, L. R., 1 Ex. 342 ; Frj'', s. 292. The acceptor however cannot himself be sued on the parol ac- cejitance : Fry, s. 294. (s) See London Dock Co. v. Sinnott, 8 E. & B. 347 ; 27 L. J., Q. B. 347. {t) See Homyman v. Marryatt, 21 Beav. 14 ; 26 L. J., Ch. 619 ; 6 H. L. Cas. 112. (») Boutlcdge v. Grant, 4 Bing. 653. {x) Olive \. Beauviont, 1 De Qex & S. 397 ; see also Johnson v. Kina, 2 Bing. 270. Sect. 4. — Action for Specific Performance, 111 there is no complete contract if terms be offered for a lease and Ch.IV. Skc.4. acceioted for a sub-lease (^), or if a particular covenant, such as not Specific .. ,. , T/\-c • Performance to assign AYithout licence, be not agreed to {z), or it even the questions of Agreement as to the costs of the counterpart, and by whom it should be engrossed, /o>' Lease. are left open (a). After a counter-proposal the party making it cannot accept the After a lirst proposal, so as thereby to make it binding as an agreement, proposal the Therefore, where the owner of a farm offered to sell it to A. for original Offer IjOOOZ. ; upon which A. WTote offering 950L, wdiich was refused, and accepted. then A. signified his acceptance of the original offer : it was held, that there was no contract between the parties, and a specific per- formance was refused {h) . It not unfrequently happens that when a Correspond- proposal or offer is made a correspondence takes place upon the proposar ^ subject, and it is sometimes difficult to say wdiether the result of such correspondence, the construction of which is for the court, no^ for a jury, shows a complete contract or merel}^ a series of unaccepted proposals and counter-proposals (c). Letters will not constitute an agreement w^hichthe court will specifically perform, unless the answer is a simple acceptance, without the introduction of a new term ((?)• A Avritten proposal or offer signed by the defendant and accepted Signed Pro- orally by the plaintiff, is sufficient to satisfy the statute (e). But a after biai"^" written proposal or offer signed by the plaintiff must be assented to Acceptance. in ivriting by the defendant to bind him and to satisfy the statute (/). The acceptance of a proposal by a corporation must generally be under their common seal, or pursuant to the express provisions of some act of parliament, before there will be any contract (g). * A written proposal or offer, which is accepted orally, need not be Stamp. stamped as an agreement (li). (c) Agreement subject to iweparation of Formal Contract. There is, of course, no binding agreement when the writing appears If Terms only to be terms agreed on as a basis for an agreement, and not the sSb^ectTo agreement itself (i); or where it provides that any of the terms are to fi"tlier Negotiations, there is no (?/) Holland v. Eyre, 2 Sim. & Stu. 194. L. R., 3 Ch. 508 ; 16 W. R. 877. Contract. (z) Lucas V. James, 7 Hare, 410. (d) Wriglit v. St. George, 12 Ir. Ch. R. [a) Forster v. Rowland, 7 H. & N. 103 ; 226. 30 L. J., Ex. 396. Compare this with . (e) Rcuss v. Pickslcy, L. R., 1 Ex. 342; Shillibeer v. Jarvis, 8 DeGex, M. & G. 79, 4 H. & C. 588 ; 14 W. R. 924. ante, p. 109 ; and sec Jackson v. Oglandcr, {f) Fclthome v. Biivdley, 11 C. B., N. S. 2 H. & M. 465 ; 13 W. R. 936, where the 869. lease had been settled on both sides and {g) London Docks Co. v. Sinnott, 8 E. & en gros.sed pursuant to an oral agreement : B. 347; 27 L. J., Q. B. 347; Haigh v. — held, no sufficient contract. North Brierly Union, 1 E., B. & E. 873, {b) Hyde v. Wrench, 3 Beav. 334. 883 ; 28 L. J., Q. B. 62 : Copper Miners of (c) See Honeymanx. Marnjatt, 21 Beav. Enqland Co. v. Fojc, 16 Q. B. 229. 14 ; 26 L. J., Ch. 619 ; 6 H. L. Cas. 112 ; (h) Drant v. Broicn, 3 B. & C. 665. Ridgway v. Wharton, 6 H. L. Cas. 238 ; (i) Frost v. Moulton, 21 Beav. 496. 27 L. J., Ch. 46 ; Reaumann v. James, 112 Chap. IV. — Ageeement for Lease. Ch. IV, Sec. 4. be afterwards settled (k) ; or where it is expressed to be " subject to Specific the preparation and approval of a formal contract " (/) ; or subiect to Performmice i • • v, i- • of Agreement a Contract to be settled between the plamtm s solicitors and the for Lease. defendant {m) ; or subject to the terms of the draft lease being " reasonable in the estimation " of the defendant {n) ; or where there appears any design of further negotiation (o) . The court will refuse to act where it onh' rests reasonably doubtful whether what passed was only treat}', let the progress towards the confines of agreement be more or less (p). But the mere fact that the parties have expressly stipulated that there shall afterwards be a formal agreement prepared does not by itself show that they continue merely in negotiation {q). Therefore correspondence about the taking of a house was held to constitute a sufficient agreement, though the agent of the lessor accepted the offer thus : — " These terms I have submitted to Mrs. S., and I am authorized to say the}' are accepted, and that her solicitor will draw up a proper agreement for signature, which I will forward to you " (?'), and an acceptance by a party merely expressed to be subject to the approval of his solicitor will it seems bind him(,s). Thus, where the defendant offered to take a lease of a number of houses from the plaintiff, by a letter ending, " such lease to be approved in the customary way by my solicitors," and the plaintiff accepted the offer, but the defendant's solicitor refused to approve or to comj)lete, Wright, J., decreed specific performance with a reference to chambers to approve the form of lease, holding that the meaning of the provi- sion was that the defendant's solicitors were to see that nothing irregultir or unusual was inserted in the lease (0- The question in cases of this sort is, whether the writing was intended to operate as a binding contract until a more formal one should be signed (u), and there appears to be no distinction in this respect between a contract for a sale and a contract for a lease. {k) TFoodv. Midgley, 5 De Gex, M. & G. (p) Huddlestonc v. Briscoe, 11 Ves. 592 ; 41 ; Honcyman v. Uarryatt, 21 Beav. 14 ; Jackson v. Oglnnder, 2 H. & M. 465 ; 26 L. J., Ch. 619 ; 6 H. L. Cas. 112. 13 W. R. 936 ; Fry, s. 343. (I) JFinnv. Bull, 7 Ch. D. 29 ;47L. J., (q) Rossitcr v. "Miller, 3 App. Cas. at Ch. 139 ; 26 W. R. 230 ; Bonncivell v. p. 1151. Jenkins, 8 Ch. D. 70. And see generally, {r) Skinner v. M'Doivall, 2 De Gex & S. Chitty on Contracts, 13th ed., Ch. II., 265. sect. 1, citing Hussey v. Hornc-Paync, {s) Sadie v. Atkinson, 52 L. J., Ch. 80; 4 App. Cas. 811, and many other cases. 47 L. T. 543; 31 W. R. 320, per (?h) Harvey v. Barnard' s Inn, 50 L. J., Pearson, J. Ch. 750 ; 45 L. T. 280, per Fry, J. [t) Chi^yperfield v. Carter, 72 L. T. 487, [n) Wilcox V. Redhead., 49 L. J., Ch. applying the observations of Lord Cairns 539 ; 28 W. R. 795, per Hall, V.-C. in Hussey v. Horne-Pcajne, i A.-^\). Cas. 311. (o) Tavmey v. Croivther, 3 Bro. C. C. («) Ridgicay v. Wharton, 6 H. L. Cas. 318 ; Strafford r. Bosioorth, 2 V. & B. 341. 238 ; 27 L. J., Ch. 46, i Sect. 5, — Considerations as to Specific Performance. 113 Sect. 5. — Considerations in Refusal or Grant of Judgment for Si^ecific Performance. The agreement must not only be complete as a contract {x), and proved by a writing or writings sufficient to satisfy the Statute of Frauds {y), or by parol evidence, coupled with sufficient part per- formance to take it out of the statute {z) ; but it must also be of so definite and specific a nature {a), and unobjectionable in other respects, that the court will decree a performance of it. Therefore a court of equity will not decree the specific performance of a con- tract for the purchase of a lease, where, from pending and threatened litigation, it is impossible to ascertain to whom the ground rent is payable, and the purchaser may be involved in immediate litiga- tion (b). In Tildesley v. Clarkson (c), the court declined to compel the defendant to take a lease of a new house, which the i^laintifi' had contracted to "finish and deliver," on the ground that upon a com- petent survey the house had been found defective, and finished in such a manner that it was likely to subject the defendant, under the covenant to repair, to an unusually large annual outlay to maintain it (c) ; and where an agreement for a lease of mineral property did not clearly define the mineral area to be comprised in the lease, the court refused, at the instance of the proposed lessee, to decree specific performance of the agreement (d). The court will not decree specific performance of a contract for a lease of premises, where one of the stipulations of the contract is, that the lessee shall engage the personal services of the lessors in the business to be carried on upon the premises (e). But an agreement for a lease "for seven, fourteen or years," was held to entitle the tenant to a lease for fourteen years, determinable at the tenant's, and not the landlord's, option, at the end of seven years, and that notwithstanding that the landlord had given his agent, who entered into the agreement, no authority to grant a lease with such option ( /"). The discretion of the court is exercised according to fixed and settled rules, and mere inadequacy of consideration, unless it be so gross as to amount to evidence of fraud, is not a ground for exercising such discretion by refusing a specific performance (;/). Thus, where Ch.IV. Skc.5. Considerations as to Hpccifif. Performance. The Agree- ment must he definite ami unobjection- able in certain respects. (a-) Ante, p. 94. \y) Ante, p. 97. iz) Ante, p. 106. (a) Bernard v. Mcara, "12 Ir. Ch. R. 389. (b) Pcglcr v. White, -33 Beav. 403 ; 33 L. J., Cii. 569. (c) Tildeslry v. CInrkson, 30 Beav. 419 ; 31 L. J., Ch.\:i62, per Eoniilly, M.R. {d) Lancaster v. l)c Tr afford, 31 L. J., L.T. Engagement of personal services. Lease determinable at end of 7 years. Inadequacy of Considera- tion. Ch. 554 ; 8 Jur., N. S. 873 ; and see Davis V. Shepherd, L. R., 1 Ch. 410. (c) Oqden v. Fossick, 32 L. J., Ch. 73. (/) Fovell V. Smith, L. R., 14 Eq. 85 ; 41 L. J., Ch. 734. Tiie tenant had entered and spent money on the farm. ((,■) Hai/wood V. Co/)(', 25 Ikav. 141, 151 : CaUaqhan \. Calhtqhan, 8 Cl. & Ein. 374; Fry, Part III.. Chap. VII. 114 Chap. IV. — Agreement for Lease. Ch. IV. Sec. 5. Cotisiderations as to Speeijic Performance. Misrepresen- tations and Deceit. Misrepresen- tation of matter of Law does not disentitle. Concealment of material Facts. Public Nuisance atlecting tlie Property, the defendant agreed to purchase leasehold property at a valuation to he made by A. B., who made a very high and apparentl}^ exorbitant valuation, viz. at thirty years' purchase for a mere leasehold, but there did not appear to be any " fraud, mistake, or miscarriage," the court decreed a specific performance with costs Qi). If the plaintiff induced the defendant to enter into a disadvan- tageous contract b}^ misrepresentations and deceit, his action for specific performance will be dismissed with costs (/). But the mere existence of circumstances at the date of the contract which might easily have led to fraud, and the want of any professional adviser on the part of the defendant, are insufficient to defeat the right to specific performance, if no fraud be shown {k). A misrepresentation of matter of law will not disentitle the plaintiff. Therefore where A., who was under an agreement to take the lease of a house containing "all usual covenants," agreed to assign all his interest to B. and forwarded him a copy of the original agreement, and afterwards, in answer to inquiries by B., stated that the lessee would not have to do substantial repairs : upon a bill filed by A. for a specific performance, it was held that A.'s statement was a misrepresentation of matter of law, and that he would not be bound or prejudiced by it (/). A specific performance will not be decreed at the instance of a person who has obtained an advantageous agreement for a renewed lease for lives, by knowingly concealing an important fact, viz., that the last life named in the lease was then in extremis, of which he well knew that the lessor was then ignorant (in). So where the plaintiff held part of the premises as lessee only, under onerous covenants, but concealed that fact, and represented himself to be owner in fee {n). The existence of a public nuisance in the immediate neighbourhood of a house agreed to be taken as a residence, and rendering it unfit for that purpose, — its existence, however, being unknown to either party, although easily ascertainable by the lessor, — seems to afford no defence to his suit for a s]3ecific performance, although it will induce the court to tr}^ the case strictly (o).., (/«) Collier V. Mason, 25 Beav. 200. (i) Dart V. & P. 1174 ; WiUingham v. Joyce, 3 Ves. 168 ; Clermont v. Tashurgh, 1 Jac. & W. 112 ; Ccidman v. Horixer, 18 Ves. 10 ; 11 K. R. 135 ; O'Herlihij v. Hedges, 1 Sch. & Lef. 123 ; Tildesley v. Clarkson, 30 Beav. 419 ; 31 L. J., Ch. 362 ; Moxey v. Bigwood, 12 W. R. 811 ; 10 Jur., N. S. 597 ; Higginsv. Samcls, 2J. &H. 460 ; 7 L. T. 240. {k) Lightfoot v. Heron, 3 Y. & C. 586 ; Dart V, & P. 1155 ; see also Johnson v. Smart, 2 Giff. 151 ; Cook v. JVaugh, Id. 201. (Z) Kemlall v. Hill, 6 Jur., N. S. 968, M.R. ; Greai Western R. Co. v. Crlpps, 5 Hare, 91. (wi) JSllard v. Ld. Llandaff, 1 Ball & B. 241 ; Fry, ss. 383, 684—688. {n) Baskcomh v. Phillips, 29 L. J., Ch. 380 ; 6 Jur., IST. S. 363. (o) Lucas V. James, 7 Hare, 410, 418 ; Dart V. & P. 1184. Sect. 5. — Considerations as to Specific Performance. 115 If the agreement is illegal the court will not decree a specific Ch. IV. Sec. 5. performance ( »). But the agreement must be legal or illegal, audit Considerations 7 .,.,,. • n ^ n • r- f "^ ^^ Specific is not withni the discretion oi the court to reiuse specific performance Performance. because an agreement savours of illegality ; it must be shown to be ingaal illegal (r/). Where a stipulation is omitted from the written agree- Contract, ment, upon the supposition that it is illegal (r), or where a party having bargained for the insertion of a particular term, knowingly, and without being fraudulently induced thereto, executes an agree- ment from which it is omitted (s), equity will hold the omission binding. By the Vendor and Purchaser Act, 1874, 37 & 38 Vict. c. 78, Plaintiff no SVlttlClGIlt sect. 2, rule 1, it is enacted that " under a contract to grant a term xitle. of years, whether derived or to be derived out of a freehold or lease- Y. & P. Act, hold estate, the intended lessee shall not be entitled to call for the ^^ ' title to the free] told," and by the Conveyancing and Law of Property Act, 1881, 44 & 45 Vict. c. 41, s. 13, sub-s. (1), that " on a contract to grant a lease for a term of years to be derived out of a leasehold interest, with a leasehold reversion, the intended lessee shall not have the right to call for tbe title to that reversion; " but by sub-s. (2), this section applies only " if and so far as a contrary intention is not expressed in the contract, and shall have efi:ect subject to the terms of the contract and to the provisions therein contained." It has been held that the 2nd section of the Vendor and Purchaser Proof of Bad Act, 1874, does not prevent an intending lessee from showing aiiu^ie. aliunde that the title of the intending lessor is bad {t) ; and, in the Right of same case, that an agreement for a right of way during the term is ^^^' within the section («)• In this case the plaintifi:s agreed to grant and the defendant to accept a lease of house and land with stipulations for the use of a drive to the house. In an action for specific per- formance, the defendant denied the plaintiff's title to grant amongst other things the use of the drive, and applied for production of title deeds, but the Court of Apj)eal refused to order production. If a party agrees to let an estate, and brings an action for the Further specific performance of the agreement, it will be dismissed with ^o Defective costs, if, in the course of the action, it should appear that the '^i*^®- intended lessor had a defective title, even though the objections on which the refusal to take the lease was grounded were frivolous and untenable {x). If it appear to the court that the plaintifi' as {p) Fry, Part III., Chap. IX. ; Dart \. 144 ; Rich v. Jackson, 4 Bro. C. C. 514, & P. 1162 ; Dr. Bettcsicorth v. Dean and 518 ; Dart V. & P. 1159. C. of St. Paul's, Select Cas. Ch. 66. [t] Jones v. Watts, 43 Ch. D. 574 ; 62 {q) Auhin v. Holt, 2 Kaj' & J. 70. L. T. 471 ; 38 W. R. 725 ;— C. A. varying (/•) Ld. Irnham v. Child, 1 Bro. C. C. judgment of North, J., 62 L. T. 58. 92 ; 6 Yes. 332 ; Sug. Y. & P. 173 (14th (u) Joms v. IVotts, supra, ed.) ; Dart Y. & P. 1159. (x) Baskcomh v. Phillips, 29 L. J., Ch. (s) Shelbiirne v. Inchiquin, 1 Bro. C. C. 380 ; 6 Jur., N. S. 363. 350 ; Jackson v. C'ator, 5 Yes. 688 ; 5 R. R. 8—2 116 Chap. IV. — Agreement for Lease. Ch.IV. Sec. 5. Considerations as to Specific Performance. Unreasonable Hardship. Costigan v. Hastier. Long V. Bowring. Injury to Property by Fire, &c. Counter v. Mac])1icrson. sole acting executrix had power to let or sell, a specific performance may be decreed, notwithstanding one of the conveyancing counsel of the court has given a contrary opinion (.//). It has been said that an appellate court, notwithstanding its impression in favour of a vendor's title, will not decree specific performance in opposition to the decision of the court below that a good title cannot be made, unless such decision be clearly wrong {z) ; but this has been doubted (a), and a purchaser has been compelled to take a title which appears to the court of appeal to be good, although the judge of the court below was of a different opinion ; that fact not being sufficient to constitute a doubtful title {h). Where a decree for s^jecific performance Avould impose serious and unreasonable hardship on the defendant the court will sometimes refuse to interfere, and only award the plaintiff damages ; but much depends on the nature of the hardship, and when and \\ow it arose (c). Thus, in Costicjan v. Hastier {c), where a mortgagor had contracted to gi'ant a lease, but failed to obtain the mortgagee's consent, as he expected to do, and was also shown to be unable to redeem, the intending tenant failed to obtain a decree for specific performance, and only succeeded in getting the contract rescinded. But in Loiuj V. Boicrinfi (c), where the defendant contracted to grant a sub-lease, and to pay to the intended sub-lessee 1,000/. by way of liquidated damages if he should fail to obtain the assent of his landlord to the sub-lease, it Avas held that he was not entitled to refuse to appty to his landlord for such assent, and by paying the 1,000/. to escape a decree for specific performance. And the general rule is, that a hardship which arises subsequently to, or indepen- dently of, the contract svill not be taken into consideration {d) . The accidental destruction by fire or tempest of an}^ of the pro- perty agreed to be demised would seem to afford no defence to an action for specific performance. The rule of Paine v. Meller{e), and similar cases, that a party who enters into a binding contract for the purchase of an estate, becomes in equit}' the owner of it, and is entitled to any profit and subject to an}' loss which may afterwards occur, is applicable to a contract for a lease. This was clearly recognized in a case heard before the Judicial Committee of the Privy Council in 1845 (/), although the plaintiff (the intended {y) Hamilton v. BuckmaMcr, L. R., 3 fiq. 323, Wood, V.-C. (z) Collier v. M'Bcan, 35 L. J., Cli. 144. («) lu Beioley v. Carter, infra. {b) Bciolcij Y. Carter, L. R., 4 Ch. 230 ; ,She2}-purd v. Doolnn, 3 Dru. & W. 8 ; and see Hamilton v. Buckmaster, supra. (c) Costigan v. Hastier, 1 Sell. & Lef. 166 ; Long v. Bowring, 33 Beav. 585 ; Fry, Part. III., Chap. VI. {d) Evans V. JValshe, 2Sch. & Lef. 419 ; Eevell V. Hussey, 2 Ball & B. 280 ; 12 R. R. 87; Frj', s. 399. (c) Paine v. Mcller, 6 Yes. 349 ; 5 R. R. 327. (/■) Counter v. Macjiherson, 5 Moore, P. C. S3 ; Tayli'v v. Caldivell, 3 B. & S. 826, where the plaintiff agreed to let a music Sect. 5. — Considerations as to Specific Performance. 117 landlord) failed to obtain specific performance on the ground of Ch. IV. Sec. 5. non-performance on his part of an agreement to put the premises Considerations a^ to Specific in repair. Performance. Where the intended landlord could not give possession on the Failure appointed dav, and time was of the essence of the contract, his bill *» gi^'^ . *^ i^oss6ssion for a specific performance was dismissed (//). Where the intended tenant, knowing that the premises were greatly out of repair, stipu- lated for certain specific repairs, which were done accordingly, and he took possession after being warned that much more expensive repairs were required, and it turned out on a subsequent examination that it was necessary to take down and rebuild a wall at great expense, specific performance was decreed (/<). Where trustees have inadvertently entered into a contract to grant Breach of or to renew a lease, in excess of their power, and which if performed would amount to a breach of trust, specific performance will not be decreed (i)- Ii^ Snecshi/ v. Tliorne, one of two executors, erroneously believing that he was acting with the authority of the other, contracted to sell a leasehold house, part of the testator's estate : it Avas held that the purchaser could not enforce a specific performance, and it seems doubtful whether he could have done so if the executor had been under no misapprehension {k). A contract for a lease by a mortgagor cannot be enforced b}- him unless he procure a recon- veyance of the mortgage, or procure the mortgagee to join in or confirm the lease (/), but in such case the court may decree the damages sustained and cause them to be assessed (»0- Where a mortgagee agreed with the jilaintiff to grant him a lease, upon the mutual understanding that the mortgagor should concur, but the mortgagor refused concurrence, the court held that the plaintiff was not entitled to insist on having a lease from the mortgagee alone : and, further, that he was not entitled to damages {n). The possibility of a forfeiture being incurred if the intended lessor Forfeiture, perform his agreement is no defence to an action for specific per- formance (o). But where a lessee sold certain lots of building ground, hall for four days, and, the music hall Haywood v. Cope, 25 Beav. 153 ; Phillips having been burnt down between agree- v. Edivards, '.id Bnav. 4i0 ; JDunn v. Flood, iiicnt and time for ]>erformauce, failed to 28 Ch. D. 586 ; Gas Light and Coke Co. v. recover datiiages, is ilistinguishable on the Toivse, 35 Ch. D. 519. ground that the existence of the music (^•) Stiecsby v. Thome, 7 De G. M. & G. hall was an implied essential condition of 399. the agreement. (/) Costigan v. Hastier, 1 Sch. & Lef. (r/) Til ley V. Thomas, L. R., 3 Ch. A p. 160. 61 ; 16 W. R. 168. (m) Hotoe v. Hunt, 31 Beav. 420 ; 32 (/(.) Cook V. Waugh, 2 Gifl". 201 ; 6 Jur., L. J., Ch. 36. N. S. 596 ; compare this ease with Tihhs- («) Franklinski v. Ball, 33 Beav. 560 ; leg V. Clarksun, 30 Beav. -119 ; 31 L. J., 34 L. J.. Ch. l.")3. Ch. 362, and p. 113, ante. (o) Helling v. LmaJey, 3 De Gex & J. (i) Byron v. Ac'on, 1 Bro. P. C. 186; 493. As to acts of forfeiture bj- iu tending Hartnell v. Yielding, 2 Sch. & Lef. 549 ; tenant, see Hill v. Barclay, 18 Ves. at Bcllringer v. Blagrace, 1 De Gex & S. 63 ; p. 63 ; 11 R. R. 147 ; and p. 123, post. 118 Chap. IV. — Ageeement for Lease. Ch. IV. Sec. 5. Considerations as to Spceijic Performance. Contract for Longer Lease than grant- able. Impossibility. Fraud — Surprise- Mistake. Jeffreys ^ Fairs. No decree of specific Per- formance with a Variation in favour of Plaintiff. and agreed to make a road, which it was afterwards found he could not do without incurring the risk of forfeiting a piece of leasehold land through which it was to pass, or of heing sued by the lessor, the court granting the purchaser specific performance of the agreement for sale refused to enforce the stipulation, but gave him compensa- tion as to that {p). Where a tenant for life contracts to grant a lease for a longer period than he has power to grant, the court will decree him to grant such lease as he is able to make (g), with compensation for the residue of the agreed term (r). If a copyholder were to agree to grant a lease for a longer term than the custom allowed, he would, it seems, be compelled to effectuate his contract in substance, by from time to time executing leases for such terms as he could, till he had made up the term contracted for (s). The court never decrees performance of that which is impossible to be done it). The contract must not only be legal, but it must not be hard or unreasonable {u), it must be free from fraud and surprise {oc), and from mistake (?/). In Jeffreys v. Fairs (0), the plaintiff agreed to grant the defendants a lease of a vein of coal, called the Shenkin vein, " about two feet thick, with the overlying and underlying beds of clay," at a certain dead rent and royalties ; it was held that this agreement could be enforced against the defendants, whether the Shenkin vein existed or not. But this was said to be " because the defendants had in fact got all they bargained for, which was the chance of finding the vein of coal under the particular property," so that it would have been " against reason, against justice, and against the whole chain of authorities, to let the defendants oft* their bargain." A mistake of law is not sufficient (a), nor a mistake as to the legal consequences of an nct{h). A substantial misdescription in the particulars of sale will entitle the purchaser to avoid the con- tract even at law (e), but he must do so inunediately {d). In equity such a contract will not be enforced against him(c). Where there has been a misrepresentation made by the vendor, the court applies (p) Peacock v. Pcnson, 11 Beav. 355. See also Wilmott v. Barhcr, 15 Ch. D. 96. (q) As to lease by tenant for life, see Chap. I., Sect. 4. ante. (r) Cleaton v. Goiccr, Finch, 164 ; Dale V. Lister, cited 16 Ves. 7 ; Hanhury v. Litchfield, 2 Myl. & K. 629 : Fry, s. 413 ; Dart V. & P. 1187—1190 ; Painter v. Newby, 11 Hare, 20. is) Paxton V. Neicton, 2 Sm. & Giff. 437 ; Fry, s. 982. {t) Green v. Smith, 1 Atk. 572. [u] TiMesley\. Clarkson, 30 Beav. 419; 31 L. J., Ch. 362, and p. 113, ante. (a;) Fry, s. 687 ; Dart V. & P. 1175 ; Waltcrs\. Monjan, 3 De Gex, F. & J. 718. (y) Fry, Part III., Chap. XIV. ; Dart V. & P. 1153 ; Wood v. Scarth, 2 Kay & J. 33 ; Brown v. Marquis of SUgo, 10 Ir. Ch. R. 1. {z) Jeffreys v. Fairs, 4 Ch. D. 448, per Bacon, V.-C. (rt) Fry, s. 765 ; Croomhc v. Lediard, 2 Myl. k K. 251. {b) Great Western E. Co. v. Crijjps, 5 Hare, 91. (c) Flight V. Booth, 1 Bing. N. C. 376 ; Wood V. Keep, 1 F. & F. 33 i. (rl) Selway v. Foqff, 5 M. & W. 83. ((■) Divimock V. iiallett, L. R., 2 Ch. 21 ; 36 L. J., Ch. 146. Sect. 5. — Considerations as to Specific Performance. 119 the rule caveat emptor with great caution (/). If the written con- tract omits any material term, or inaccurately expresses the real intentions of the parties, the court will not enforce, with a variation to correct the mistake, at the instance of the party in whose favour such correction would operate (g). Thus, where a person has con- tracted for the assignment of a lease, he will not be decreed to take the assignment of an underlease even with compensation (//). If he has contracted for an estate in possession, he will not be decreed to take a reversionary lease with compensation (i). If he has con- tracted for a specific term, ex. gr. sixteen years, he will not be decreed to take a considerably less term, ex. gr. six j-ears with com- pensation (k). By an agreement in writing, A. agreed to demise to B. premises which were then in lease to C, and B. undertook to procure a surrender from C. of the existmg lease and to accept a new lease. C. having afterwards refused to surrender, A. filed a bill against B. for a specific performance, 7vith a modification. It was held, upon demurrer, that the bill could not be sustained (/). On the other hand, if the opposite party files the bill, the court will not decree a specific performance unless he submits to such alterations or compensation as the court thinks ought to be made ujion a con- sideration of the i^arol evidence (m). Where a plaintili" alleges a written agreement with a parol variation in favour of the defendant, and offers to perform the agreement with the variation, the court will enforce specific performance, although the defendant insists on the statute {n). In one case, A. agreed to grant the lease of a public-house to B., " the lessor to make certain alterations suggested and to make and form a spirit-vault, and put in plate-glass windows, and to do everything therewith necessary at his own expense, and paint new the outside of all woodwork, as well as put the slates, chimney-pots and roofing in thorough repau\" B., b}' his bill, offered to waive the performance of the agreement so far as regarded any alterations not specifically mentioned therein. It was held, that Ch. IV. Sec. 5. Considerations (IS to Hpecijic Performance. Otherwise at the instance of Defendant. (/) Colbijv. Gadsden, 15 ^V. K. 1185 ; 17 L. T. 97. (.y) Fry, ss. 779—801 ; Dart V. & P. 1149 ; iVoolam v. Hccnii, 7 Ves. 211 ; 6 K. K. 113 ; JFinrk v. Jfindiestcr, 1 V. & 11 375, 378 ; 12 R. R. 238 ; Hiijginsoii v. Clowes, 15 Ves. 516, 523 ; 10 R. R. 112 ; Clinan v. Cooke, 1 Sch. & Lef. 22 ; 9 R. R. 3 ; Manser v. Back, 6 Hare, 447 ; Squire V. Cavipbell, 1 Myl. & Cr. 480 ; Emmet V. Dev-knrat, 3 Mvl. & Cr. 587 ; Bavics V. Fitlon, 2 Dru/& W. 225; ISursc v. Lord Seymour, 13 Beav. 254. (h) Mcidclcy v. Booth, 2 De Gex & S. 718 ; Darlington v. Hamilton, 1 Kay, 550 ; WaiTen v. Bichardson, You, 1 ; Fry, s. 1209. (i) Lineliam v. Cotter, 7 Ir. E^[. 176 ; Sug. V. & P. 304 (14th ed.) ; Dart V. A: P. 1199. {k) Long v. Fletcher, 2 Eq. Cas. Abr. 5 ; Dart V. k P. 1200. {1} Bccstoa V. Stutlcij. 26 L. J., Ch. 156, Wood, V.-C. {m) Joi/ncs V. Stathutn, 3 Atk. 388 ; Barnard v. Cave, 26 Beav. 253 ; Clarke v. Moore, 1 Jon. & Lat. 722 : Browne v. Mar- quis of Sligo, 10 Ir. Ch. R. 1 ; London and Birminrjham K. Co. v. Winter, Cr. & Ph. 57, 62 ; James v. Liehficld, L. R., 9 Eq. 51 ; Fry, s. 1222 ; Dart V. k P. 1153. (/() Martin v. Byeroft, 2 De Ge.\, M. & G. 785; Dart V. & P. 1148, 1156, 1176. 120 Chap. IY. — Agreement for Lease. Ch.IV. Sec.5. Considerations as to Spccijic Pevformance. Where any- thing remains to be fixed or decided by third Persons over whom the Court has no control. When Con- tract condi- tional on Lessor's ability. Requirement of Licence to assign. he was entitled to a decree for specific performance, minus the waiver (o). Where the defendant relies on a parol variation of a written contract, as a defence, he must prove such part performance of the agreement as altered as would induce the court to enforce it as an original independent agreement (jj). If the amount of premium or rent to be paid, or any other material point, is by the agreement left to be determined by third persons, ex. fjr., arbitrators or surveyors, and that has not been done before suit, the court will not decree specific performance, having no power to compel such third persons to jDerform their duty : it therefore treats the contract as too imperfect to be specifically enforced (q). But after such matter has been so determined, the contract may be enforced by decree even where the sum fixed appears to be exorbitant, no fraud, mistake or miscarriage being proved (r). B. agreed to grant a lease to W. as soon as W. should have built a house with the necessary outbuildings on the land, of the value of i'1,400 at the least, "according to a plan to be sub- mitted to and approved by B." W. agreed to build such house and take the lease ; no plan was submitted to or approved by B., but he was ready and willing to approve of any reasonable plan ; under such circumstances, a bill filed by B. for a specific performance, was dismissed with costs (s). If a contract for a lease be made conditional on the lessor's ability to grant it, an action for si^ecific performance cannot be supported without proof of the lessor's ability ; or that he has received part of the agreed premium, and interest on the balance, and so in efi'ect estopped himself from relying on the condition (t). But the plaintiff may be entitled to an equitable lien on the land for the sums expended on the faith of the agreement, with interest thereon, and to conse- quential relief (u). Where the lessor's consent or licence is necessary to an assignment of a lease, it is the vendor's duty to obtain it, and if he cannot do so before the commencement of an action for specific performance he cannot maintain such action (v). (o) Middlcton v. Grecnivood, 2 De Gex, J. & S. 142. [p) Lcqal V. Miller, 2 Ves. Sen. 299 ; Price V. Dyer, 17 Ves. 356, 364 ; 11 R. R. 102 ; Robinson v. Page, 3 Russ. 121. iq) Mihifs V. Gcry', 14 Ves. 4.50 ; 9 R. R. 307 ; Darby v. Wldttaker, 4 Drew. 134 ; Tilhtt V. Charing Cross Bridge Co., 26 Beav. 419; 28 L. J., Ch. 863; Fry, ss. 337 — 348 ; see also Collins v. Collins, 26 Beav. 306 ; 28 L. J., Ch. 184 ; Jackson v. Jackson, 1 Sm. & Giff. 184 ; Vickers v. Vickers, L. R., 4 Eq. 529; 36 L. J., Ch. 946. (r) Collier v. Mason, 25 Beav. 200 ; Ormcs v. Beadel, 2 Giff. 166 ; 30 L. J., Ch. 1 ; Blackctt v. Bates. 31 L. J., Ch. 515 ; 2 H. & M. 270, 610; L. R., 1 Ch. 117. (s) Brace v. Wchnert, 25 Beav. 348. But see Mayor, tL-c, of London v. SoiUhqate, 38 L. J., Ch. 411. (0 Abbot V. Blair, 8 W. R. 672 ; BauTiian v. Matthcivs, 4 L. T. 783, L.C. (u) Middlcton v. Magnay, 2 H. & M. 233 ; 12 W. R. 706 ; Hindley v. Emery, L. R., 1 Eq. 52 ; 35 L. J., Ch. 6 ; Turner V. Marriott, L. R., 3 Eq. 744 ; 15 W. R. 420. {v) Ferrer v. Nash, 35 Beav. 167 ; 14 W. R. 8 ; and see post, Ch. XVII., Sect. 2. Sect. 5. — Considerations as to Specific Performance. 121 An ngreemeut to take a lease of a house, if put into thorough Ch.1V. Sf.c.5. repair, and tlie drawing-room " handsomely decorated according to Considerations the present style," is too uncertain to be enforced by a decree for a "perfoZiaiice specific performance (x) ; but where a lessor agreed to let a house, . and to put it into decorative repair, and afterwards refused to lulnl not enforee- his contract, the court, at the instance of the lessee, who had entered uncei-taintv into possession, decreed specific performance of the agreement, with an inquiry whether the agreement as to decorative repair had been performed ; and if not, decreed that the lessor should compensate the lessee in damages {y). In Faulkner v. Lleiccllyn, B. agreed with 0. to take a lease of a house which C. Avas building, when it was " complete, finished, and fit for habitation : " B. took possession, but afterwards found various objections to it, contending that it was not properly finished. The matter being referred to an expert, he reported that, although there might be some objections, yet the house was " complete, finished, and fit for habitation." A decree for a specific performance of the agreement was granted {z). Where terms for letting farms provided that all materials required for buildings proposed to be built, or that might thereafter be built, should be led at the expense of the tenant ; that the landlord should drain, the tenant leading tiles ; that gates, building, " kcJ' should be left in repair by the tenant, the landlord finding new gates when required ; and the landlord reserved to himself all customary rights and reservations, such as libert}' to cut and plant timber, search for and work mines or minerals, " &c.," allowing the tenant for any reasonable damages : — It was held, that these stipulations did not render the agreement uncertain, so as to be incapable of being enforced specifically (a). The court will not decree specific performance of part of a con- Xo Decree for tract {h), unless the residue has been already performed (c), or the of^PaV^o/a unperformed part is separable and divisible from the rest, and does Contract, of itself form a complete contract. 'I'hus, in Green v. Ia)w, the Exceptions. owner of a plot of ground agreed to grant a lease of it to A. as soon as tlie latter had erected a villa thereon, but it was stipulated that if A. should not perform the agreement on his pait, the agreement for a lease was to be void, and that the owner might ri'-enter. A. was to insure in a particular way, and he was to have the option of purchasing the fee within two years, ni)on certain terms. A. erected (x) Tdijlur V. Port in I ft on, 7 De Gex, JI. i>^>9 ; '1~ L. J., Cli. 812 ; and see Xorris v. & G. 32S'; and see Jclfcnj v. SfrjJicis, 6 Jaclson, 3 Gill. 39H ; 8 Jnr., X. S. 930. Jur., X. S. 947 ; 8 ^\'.■K. '427, M.R. {/>) Fry. Part 111., Cliaj.. XVI. ; Dart (//) Samiida v. Lawford, 4 Gitl". 42 ; S V. i/ii,'31 L. J.,Cli. Eastern 11. Co. v. Stewart, 3 ^laccj. H. L. 549 ; 11 W. R. lOo.'i ; 12 W. R, 193. Cas. 382. (a) Parker v. Taswcll, 2 De G. & J. (c) Hope v. Hope, 22 Beav. 351. 122 Chap. IV. — Agreement for Lease. Ch. IV. Sec. 5. Considerations as to Specific Performance. After umiecessaiy Delay by Plaiutifi'. Possession under Con- tract for Lease. the villa, but insured in a wrong office, and in a wrong name. It was held that the contract for a lease was independent of the option to purchase, and that notwithstanding the forfeiture of the first, the latter still subsisted, and a specific performance of the contract for sale was decreed {d). And where a landlord agreed to give a builder leases of successive plots of land as the houses upon each of them should be built up to a successive stage, it was held that the agree- ment was in its nature separable, and could be enforced as to some of the plots by an assignee of the builder (t^). A tenant for years, with an option of purchasing the fee, must not only give due notice but also on the projier day pay or tender tlie purchase-money ; that being a condition precedent {/). Such a notice may be given to the infant heir of the lessor, and Avill constitute a valid contract, which may be enforced in equity notwithstanding the infant cannot give a discharge for the purchase-money ((/). Where one party to an agreement trifles, or shows backwardness in performing" his part of it, equity will not decree a specific perform- ance in his favour, esjiecially if the circumstances and situation of the other party are materially altered in the meantime (/i), or if the contract be in anywise unilateral, as where there is au option to pur- chase, or a right of renewal, or any other condition in favour of one party and not of another (/). As a general rule, a party cannot call upon a court of equity for a specific performance, unless he has shown himself ready, desirous, prompt and eager (/t). " It would be dangerous to permit parties to lie by, with a view to see whether the contract will prove a gaining or losing bargain, and according to the event either to abandon it, or, considering lime as nothing, to claim a specific performance, w^hicli is alwa3'S the subject of discretion " (/). But it is otherwise where the defendant has entered into posses- sion, and paid the rent regularly for fourteen or fifteen years (?»), although the mere j)ayment of rent is not enough (u). In other cases the rule will be relaxed where the strict application of it would (fZ) Green v. Low, 22 Beav. 625. (e) Wilkinson v. Clements, L. R. , 8 Ch. 96 ; 42 L. J., Ch. 38 ; 27 L. T. 834. (/) Weston Y. Collins, 34L. J.,Ch. 353 ; 13 \V. K. 510 ; Ld. llanelagh v. Melton, 2 Dr. & Sni. 278 ; 34 L. J., Ch. 227. ig) Woods V. Hyde, 31 L. J., Ch. 295 ; 10 W. R. 339. {h) Hays v. Caryll, 1 Bro. P. C. 126 ; Nori'is V. Jackson, 1 Johns. & H. 319 ; 7 Jur. , N. S. 540 ; Southcomb v. -B?;. of Exeter, 6 Hare, 213, 218 ; Cliestermun v. ilann, 9 Hare, 206 ; Eads v. Williams, 4 De Gex, il. & G. 691 ; V/alters v. Northern Coal Mining Co., 5 De Gex, M. & G. 629 ; Sncesby v. Thome, 1 Jur., N. S. 1058 ; Fry, .ss. 1070—1079. (i) Fry, s. 1073, citing Brooke v. Gar- rod, 27 L. J., Ch. 226. (k) Mihcard v. Earl of Tlianet, 5 Yes. 720, n. ; 5 R. R. 150, n. {I) Alley V. Descliamps, 13 Yes. 225; South Eastern R. Co. v. Knott, 10 Hare, 122 ; Firth V. Greenwood. 1 Jur., N.S. 866. (m) Sharp v. Milligan, 22 Beav. 606 ; 23 Beav. 419 ; Clarke v. Moore, 1 Jon. & L. 723 ; Cartan v. B%iry, 10 Ir. Ch. R. 387 ; Fry, s. 1080. \n) Davenport v. Walker, 34 L. T. 168 ; Powis v. Ld. Dynevor, 35 L. T. 940. Sect. 5. — Considerations as to Specific Performance. 123 work injustice (o), as where a landlord iias sent a draft lease to a tenant who fails to return it(2j), or where any objection on the ground of delay has been waived (q). In contracts for the lease of working mines, the time for comple- tion, whether specified or not, is, from the fluctuating nature of the property, considered as of the essence of the contract, and the intended lessor is bound to use his utmost diligence to complete, and in default thereof the proposed lessee may, by notice, fix a reasonable time for completion, and, in case of non-compliance therewith, may rescind the contract (r). Time will be considered of the essence of the contract in contracts with ecclesiastical corporations for leases, because everyday changes the value and nature of the thing" to be granted, and also the persons who are to participate in the fine or premium to be paid (•§) : also in other cases where the property is of fluctuating value {t), or the property is wanted for commercial purposes (ii). Specific performance will not be decreed at the instance of a tenant who, having entered into possession under an agreement for a lease, has committed waste, or omitted to repair, or done other acts which would clearly amount to breaches of the covenants to be contained in the lease, and for which the lessor would have been entitled to re-enter and determine the lease, pursuant to a proviso for re-entry to be therein contained {x). But if such breaches are disputed, and the evidence thereof is not clear and cogent, or if it appears doubtful whether such breaches have not been waived by the receipt of subsequent rent or otherwise, the court will decree a specific performance, and direct the lease to be ante-dated, with liberty for the landlord to proceed bv ejectment, action of covenant, or otherwise for such alleged breaches, the tenant undertaking to admit in an}^ such action that the lease Avas executed on the da}' it bears date Q/). In such case the tenant must insure immediately after the execution of the lease, if it contain a covenant to insure, kc. {z). Acts creating a nuisance to the landlord, for which a Ca.IY. Sec.5. Consideratioiis as to Specijic Performance. Urgency in case of Mines ; or Leases b}- Ecclesiastical Corporations, &c. "Wlien the Tenant has committed Acts of Forfeiture. If not clearly proved Lease ante-dated. (o) Walker v. Jeffcnjs, 1 Hare, 353 ; Jones V. Jones, 12 Ves. 188 ; 10 R. R. 77, n. (p) Shcpheard v. Walker, L. R. , 20 Eq. 659 ; 33 L. T. 17. (q) Fry, ss. 1090—1098; ITudson v. Bartram, 3 Mad. 440 ; King v. Wilson, 6 Beav. 124 ; Kc parte Gardner, 4 Y. & C. Ex. 503. (?•) Machrydc v. Weekes, 22 Beav. 533 ; Sharp V. Wright, 28 Beav. 150. {s) Carter v. Lean of Ely, 7 iSini. 211. {f) Doloret v. Jiothschild, 1 Sim. •) Lehmann v. M' Arthur, L. R., 3 Ch. & J. 494, 519 ; 30 L. J., L'h. 298 ; Pkard 496; 37 L. J., Ch. 625. v. Hinc, L. R., 5 Ch. 274. {!.) Flight v. BoJhnid. 4 Russ. 298; 28 ip) Fry, s. 261 ; 1 Yes. jun. 82 ; bnt R. R. 101 ; Hogcc>fc for a . ^. . . Lease. the equit}' decisions ? These are open questions upon the authorities, -■ — but it is submitted that wliat is usual must in every case be a question of fact to be decided upon evidence if either party so recpiire, that upon an action for specific performance in the Chancery Divi- sion there would be some reason for apjDlying for a jury under Order XXXYI., Rule (3, and that such a jury might find independent!}' of the equity decisions. Sect. 8. — Solicitoi-'s Cliarr/cs. The Solicitors' Remuneration Order, 188'2 (s), prescribes a scale of remuneration to solicitors for agreements for leases and leases varying in proportion to the rent, and accordingly as the transaction is completed or not, but not including stamps, counsel's fees, and other disbursements "reasonably and properly paid" (Rule 4). The scale, which is set out in full hereafter (.s), may be generalh' ■described here as a 71 per cent, scale on the rental for the intending lessor's solicitor, and half that amount for the intending lessee's .solicitor. A solicitor concerned for both parties is to charge the lessor's solicitor's charges, and one half the lessee's solicitor's ■charges. Charges for negotiations preparatory to an agreement which resulted in a lease have been, under the order, disallowed on taxation {t). r>. k (J. 6-27 ; 31 R. R. 270, ami Brookfs V. Drysdak, 3 C. P. D. 52, was the ■(Question subniitted to a jury. (s) See so much of the Order as np)ilies to agreemeuts for leases aud leases, post, Appendix A., and for the cases upon the Order, see Ch. V., Sect. 16 (b), post. (JA Field, III T'l, 29 Ch. D. 60S : vA L. J., Ch. 661 ; 52 L. T. 480 ; 33 AV. R. 553 — C. A., affirming Chitty, J. 0—2 ( 132 ) CHAPTER V. THE LEASE. Skc 1. 9 10. n. T. PAGE Definition of " Lease" 132 What Leases by Deed 135 Entry under void lease 136 Indenture 137 Counterpart 137 Form of Lease 138 Construction 140 Description of Premises 146 (a) Generally 146 (h) " General Words " 152 Tei-m granted 153 (a) Habendum 153 (b) Lease for Life of Lessee 154 (c) " Lease for Lives " 155 (d) Commencement of Term 158 (e) Duration of Term 163 Reddendum 168 Express Covenants 168 (a) Generally 168 (b) " Running with Land " 172 (c) Dependent or Lidepeudent ... 177 (d) How discharged 182 Implied Covenants 182 (a) Generally 182 (b) On letti)ig furnished house ... 184 (c) On letting house at low rent... 185 (d) By Lessor not to derogate from grant 185 (e) By Lessee for tenantlike user 186 Exceptions and Reservations 188 Provisoes and Conditions 192 Sec 12. 13. 14. 15. 16. 17. IS. 19. 20. 21. 22. 23. 24. 25. T. PAGE Schedules, Indorsements, &c 194 Stamp Duty 195 (a) Generally 195 (b) Stamping after Execution, or for Evidence 199 (c) Stamping to escape Penalties . 199 Execution 200 Registration of Lease for more than 21 years (in Middlesex or Yorkshire) 202 Cost of Lease 206 (a) By whom payable 206 (b) Scale of Costs under Solicitors' Remuneration Order 207 Entry of Lessee 209 Void or Voidable 210 Leases under Powers 212 (a) Generally 212 (b) In Possession or Reversion ... 216 (c) Usual Covenants 218 (d) Proviso for Re-entry 219 (e) Lands usually Let 219 (f) Mode of Execution 220 (g) Defects in — how cured 220 Leases in Reversion 221 Concurrent Leases 222 Estoppel 223 Bond for Performance of Covenant 227 Rectification, &c., of erroneous Lease 227 Cancellation for Fraud 229 Sect. 1. — Definition of " Lease." Definition. A LEASE is a conveyance (a) by way of demise of lands or tenements, for life or lives, for years, or at will, but always for a less term than the party conveying himself has in the premises ; for if it be for the whole interest, it is an assignment and not a lease (h). A lease is usually made in consideration of rent, or some other annual recom- pense rendered to the party conveying the premises — who is called the lessor or landlord — by the party to whom they are conveyed or let, who is called the lessee or tenant (r). («) In the Conveyancing Act, 1881, the word " conveyance " includes " lease " un- less a contrary intention appears. (6) Bcardman v. Wihon, L. P., 4 C. P. 57 ; 17 W. R. 54 ; and see the cases cited, post, Ch. VII., Sect. 5. (c) Shep. Touch. 266. Sect. 1. — Definition of " Lease." 133 A lease is also a contract for the exclusive possession of lands or tenements for some certain number of years or other determinate period (d). An instrument is not a demise or lease, although it con- tains the usual words of demise, if its contents show that such was not the intention of the parties. Thus where A. agreed with B. to let him have the use of the Surrey Gardens and Music Hall, Newington, for four days at 100/. per day, for the purpose of giving a series of four grand concerts and day and night fetes ; but from the terms of the agreement it was evident that A. was not to part with the possession of the premises during those four days : this was held no demise (e). So where A., an owner of lace machines, paid 12.s. a week to B. for permission to place the machines in a room in B.'s factory, and for free ingress and egress to the room for himself and workmen for the purpose of working and inspecting the machines ; B. supplied the necessary steam power for working the machines, payment for which was included in the above sum : it was held that there was no demise to A. of any part of the room, and no relation of landlord and tenant created between him and B. (/). Where an incorporated canal compan}' by deed granted to the plaintiff the sole and exclusive right or liberty of putting or using pleasure boats for hire on their canal, it was held that the grant did not create such an interest or estate in the plaintiff as to enable him to maintain an action in his own name against a person who disturbed his right of putting and using pleasure boats for hire on the canal {[/). A licence to fasten a coal-barge to moorings fixed in a river, until determined by a month's notice — the licensee to pay 30Z. annually towards the expense of the moorings — does not amount to a demise, nor give the licensee an exclusive right to the use of the moorings, nor render him liable to be rated as the occupier of part of the bed of the river (//). The grant b}' a riparian proprietor of a right to take water from a natural stream on which his land abuts, operates as a licence in gross, and not as a demise, and will not enable the grantee to maintain an action in his own name against a wrongdoer (?'). The gratuitous loan of a shed for a jmrticular purpose operates as a mere licence revocable at any time (A) ; and the permission to use a stall at an exhibition between 10 a.m. and 11 p.m. at a weekly rent has the same operation and gives no right to distrain (/). A licence (d) Beg. v. Morrish, 32 L. J., ]\r. C. 24,"). (c) Taylor v. Caldiccll, 3 13. & S. 826 ; 32 L-. J., Q. B. HU. (/) Hancock V. Austin, U C. B., N. S. 634 ; 32 L. J., C. P. 252. {()) mil V. Tujijxr, 2 H. & C. 121 ; 32 L. J., Ex. 217. (/<) IVatMns v. Overseers of Milton next Gravcsend, L. R., 3 Q. B. 350 ; 37 L. J., M. C. 73 ; Grant v. Oxford Local Board, L. K., 4 Q. 15. 9 ; 17 AV. R. 76 ; see also London and North-Wcstern B. Co. v. Buck- nuister, L. R., 10 Q. B. 444 ; 44 L. J., I\I. U. ISO ; 33 L. T. 329 ; Cory v. Brislow, 2 App. Cas. 262. (i) Stockport JFatertcorks Co. v. Potter, 3 H. & C. 300. {k) Williams V. Jones, 3 H. & C. 256 ; 33 L. J., Ex. 297. {I) Bendcll v. Boman, 9 T. L. K. 192. Ch. Y. Sec. 1. Definition of " Lease.''' Di.stinctioii between Lease and Licence to Use. Taijlor V. Culdtvell. Boats on Canal. Licence to moor Barge. Right to take water. iShcd and Stall. 134 Chap. V. — The Lease. Ch.V. Sec. 1. Definition of ^^ Lease.''' Stone and Clay. RigLt of Shooting, &c. Wood V. Lcadhitter. Revocation of licence. Cfeneral Requisites of a good Lease. to get all the copperas stone which may be found in part of a manor, for twenty-one years, at the yearly rental of 25/., is not a demise, and will not support a distress for the rent {m). A demise of afire-brick manufactorj^ for twenty-one years, with powers during such term to dig fire-clay from under certain adjoining land, does not amount to a lease, but only to a licence as to the fire-clay, and will not prevent the licensor from digging parts of such fire-clay, or authorizing others to do so, or otherwise dealing with such adjoining land in a manner not inconsistent with the licence (//). A licence to hunt or shoot over land, although it does not give the licensee any estate in the land (o), amounts to the grant of an incor- poreal hereditament ; and an assignee of the reversion may sue i'or breaches of any covenant which touches or relates to the land and runs with it {p). But the licence to convey an estate must be by deed ; for a parol licence to exercise a right of way or other easement over land of the licensor, whether anything was paid for such licence or not, may be revoked at any time, either expressly or by doing some act inconsistent with such licence {q), though the licensee may sue the licensor for breach of implied contract not to revoke (/•)• Any such licence is determined b.y the death of the licensor or of the licensee, or by an assignment of the land over which, or of the subject-matter in respect of which, the easement or privilege is to be enjo^'ed (s). But an action lies for a breach of contract to grant an incorporeal hereditament, although the contract be not under seal (7). These things must concur in the making of every good lease : 1. There must be a lessor, who is able to make the lease. 2. There must be a lessee, who is capable of taking the thing demised. 3. There must be a thing demised which is demisable. 4. If the thing demised or the term expressed to be granted be not grantable, without a deed, or the party demising be not able to grant without a deed, the lease must be made by deed, containing a sufficient description of the lessor, the lessee, the thing demised, the term granted, and the rent and covenants : and all necessary circum- stances, as sealing, delivery, &c., must be observed. 5. If it be a lease for years, it must have a certain commencement, at least when it takes effect in interest or possession, and a certain determination, either by an express enumeration of years, or by reference to a certainty that is expressed, or by reducing it to a certainty upon {m) Ward v. Day, 4 1]. & S. 337 ; 5 Id. 359; 33 L. J., Q. B. 3, 254. {n) Oarr v. Benson., L. R. 3 Cli. 524. {o) Bird V. Great Eastern 11. Co., 19 C. B., N. S. 268. {■p) Hooper v. Clarl; 8 11 & S. 150 ; L. R., 2 (,). B. 200; 3ti L. J., Q. B. 79. (g) Wood V. Lcadhitter, 13 M. fcAA'tsSS, (r) KcrrisuH v. ISinith, 77 L. T. 344. {s) Coleman v. Foster, Bart., 1 H. & C. 37 ; Roberts v. Foose, 3 H. & C. 162 ; 33 L. J., Ex. 1, 241 ; 35 Id. 62 ; Wallis v. Harrison, 4 M. & W. 538 ; 5 Id. 142 ; Moft'cy V. Henderson, 17 Q. B. 575. \t) Smart v. Jones, 33 L. J,, C. V. 154. Sect. 2. — What Leases must be by Deed. 135 some contingent event, which must happen before the death of the Cii. A^Sec. i. lessor or lessee. 6. There must be an acceptance of the thing Definition of '"Lease." demised, and of the estate by the lessee {a). '- Sect. 2. — Wliai Leases must he hy Deed, A lease for three years or less may be in writing or parol as the parties please (.r), but a lease for more than three years from the making {y) must be b}' deed. Such is the effect of the Ileal Property Act, 1845, 8 & 9 Vict. c. 106, s. 3, taken in conjunction with sects. 1, 2 of the Statute of Frauds. By 8 & 9 Vict. c. 106, s. 3, " a lease required by law to be in writing, of any tenements or hereditaments made after the 1st October, 1845, shall be void at law unless made by deed." And by the Statute of Frauds, 29 Gar. 2, c. 3, s. 1, " all leases, estates, interests of freehold, or terms of years, or any uncertain interest of, in, to or out of any messuages, manors, lands, tenements or hereditaments, made or created by livery and seisin only, or by parol and not put in writing and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing {z), shall have the force and effect of leases or estates at will only ; and shall not, either in law or equit}', be deemed or taken to have any other or greater force or effect, any considera- tion for making an}- such parol leases or estates to the contrar}- notwithstanding" (a) : excepting, nevertheless, sect. 2, "all leases not exceeding the term of three years />'o^», the making {y) thereof, whereupon the rent reserved to the landlord during such term shall amount unto two third parts at the least of the full improved value of the thing demised." A lease for a term of less than three years, with the right in the lessee, at his option, to prolong it to a period exceeding three years from the date of the lease, is within this ex- ception (}j). Sect. 4 enacts " that no action shall be brought whereby to charge any person upon any contract or (s/c) sale of lands, tene- ments or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith or some other person thereunt'> b}' him lawfully authorized " (c). Lease for 3 years may be in "Writing or by Parol : Lease for more than 3 years must be by Deed. No action on unwritten contract as to Linil. {it) Shep. Touch. 267. [x) See llyley v. Hkls, 1 Stra. Qi>\ ; Lord Bolton v. Tomlin, 5 A. & E. 856. ((/) Eaidins v. Txirncr, 1 Ld. Raym. 736. [z] Smith L. & T. 82 (2nd ed.). («) But such estates at will may change into tenancies from year to year, a\ hen any of the agreed rent is paid and receivecf. Tress v. Savage, 4 E. & B. 36 ; Doc d. Tdggc V. Bell, 5 T. R. 471 ; 2 H. R. 642 ; 2 Smith, L. C. ; 3 R. R. 642 ; and see Ch. VL, s. 21, post. {h) Band v. Hall, 2 Ex. D. 355 : 46 L. J., Ex. 603 ; 36 L. T. 765 ; 25 W. ii. 734 — C. A., reversing decision below, 2 Ex. D. 318 ; 46 L. J., Ex. 242. ((■) This extends to all mere agreements for leases (even for less than three years) ; 136 Chap. V. — The Lease. Ch. V. Sec. 2. Tf/iai Leases ■must he bi/ Deed. ' Non- contimious letting. Void Lease may operate as Agreement. Parker v. Taswell. Tenant entering under void Lease is Tenant from Year to Year. Doe V. BeJl In the peculiar case of Smallwood v. Sheppards, wliere there was an oral letting of a piece of ground for three successive Bank Holidays in the same 3'ear at a lump rent payable by equal instalments for each of the three days, the defendant, having occupied and paid for the first of the three daj^s, unsuccessfully set up the above section of the Statute of Frauds in answer to a claim for the two remaining instalments, not having occupied for the two remaining days(r/). The effect of the Eeal Property Act, 1845, 8 & 9 Vict. c. 106, s. 3, is, that an instrument not under seal which purports to demise or let premises for more than three years from the making thereof, or even for a less term, if the rent reserved does not amount unto two third parts at the least of the full value of the thing demised, is void at law as a lease ; but it may operate as an agreement for a lease (e), even at law. Since the above act the courts of law have construed a writing rather as a valid agreement for a lease than as a void lease (/). If the tenant enter into possession under a void lease he thereupon becomes tenant from year to year upon the terms of the writing, so far as they are applicable to and not inconsistent with a yearly tenancy (^). Such tenancy may be determined by the usual notice to quit at the end of the first or any subsequent year thereof (//) ; and it will determine, without an}^ notice to quit, at the end of the term mentioned in the writing (i). But if the lessee do not enter, he will not be liable to an action for not taking possession {k) ; nor, on the other hand, will an action lie against the lessor for not giving possession at the time appointed for the commencement of the term but before the lease is executed {I). The effect of the Real Property Act, 1845, 8 & 9 Vict. c. 106, is not to put an end to oral leases, but merely to superadd to such leases as are required by the Statute of Frauds to be in writing, the necessity of their being hy deed. but the agent need not be authorized hy writing as under sect. 1 ; Smith L. & T. 93 (2nd ed.) ; Clarke v. Fuller, 16 C. B., N. S. 24 ; Foster v. Rowland, 7 H. & N. 103; Heard v. Pilley, L. R., 4 Ch. Ap. 548. For the effect of sect. 4 ujton an agreement for a lease, see ante, }>. 90. {d) Small wood v. Shc2}pards, [1895] 2 Q. B. 627 ; 64 L. J., Q. B. 727. (e) Parker v. Tastvcll, 2 De G. & J. 559 ; 27 L. J., Ch. 812 ; Cotven v. Phillips, 33 Beav. 18. (/) Bond V. Posting, 1 B. & S. 371 ; 30 L. J., Q. B. 227 ; Rollason v. Leon, 7 H. & N. 73 , 31 L. J., Ex. 96 ; Tidey v. Mollett, 16 C. B., N. S. 298; 33 L. J., C. P. 235 ; Hayne v. Oummings, 16 C. B., N. S. 421. {ij) Doc d. Iligge v. Bell, 5 T. E. 472 ; 2 R. R. 642 ; 2 Sm. L. C. 96 ; Richardson V. Giffbrd, 1 A. & E. 52; Doc d. Thoiiqjson V. Amey, 12 A. & E. 479 ; Bcrrey v. Lindlcy, 3 M. & Gr. 498 ; Lee v. Smith, 9 Excli. 662 ; Beale v. Saunders, 3 B. N. C. 850 (assignee under void lease) ; Doe d. Pennington v. Taniere, 12 Q. B. 998, 1013 ; Tress v. Savage, 4 E. & B. 36 ; Pistor V. Cater, 9 M. & W. 315; Doe d. Broiime, 8 East, 165 ; 9 R. R. 397; Cooch V. Goodman, 2 Q. B. 580. [h) Cole Ejec. 36, 222. (i) Tress v. Savage, 4 E. & B. 36 ; Cole Ejec. 223, 444. \k) Inman v. Stamp, 1 Stark. 12 ; Fdge V. Strafford, 1 C. & J. 391 ; 1 Tyr. 295. {I) Drury v. Macnamara, 5 E. & B. 612 ; Jinks v. Edwards, 11 Exch. 775. Sect. 2. — What Leases must be by Deed. 187 First, then, of leases by deed. A deed is a writing sealed and Cn. V. Sec. 2. delivered by the parties, and is either an indenture or a deed-poll. iJ'hat leases If a deed be made by more parties than one, there ought regularly "'"j)eed ^ to be as many copies of it as there are parties, and each formerly ^ \ •' ^ _ ^ ' ^ ' Leases by was cut or indented (instar dentium) on the top or to tally or cor- Indenture, respond with the other, which deed so made is called an indenture {ui). Formerly, if a deed began " This indenture " made, Sec. and the parchment or jiaper was not indented, it was not an indenture, because the words could not make it indented ; but if the deed was actually indented, though there were no words of indenture in the deed, yet it was an indenture in law ; for it might be an indenture without Avords, but not by words without indenting (/O. But now, by the Real Property Act, 1845, 8 & 9 Vict. c. 106, s. 5, " a deed executed after the 1st October, 1845, purporting to be an indenture, shall liave the effect of an indenture, although not actually' indented." All the parts of an indenture make but one deed, and each part is of as great force and effect as all the parts together ; so they are esteemed the mutual acts of the respective parties, each of whom may be bound by either part of the same, for the words of the indenture are the words of each part}^ (o). The common nsage is for the lessor to execute one instrument to The be handed to and kept by the lessee — which is the lease — and for the lessee to execute another instrument of precisely similar tenor, to be handed to and kept b}' the lessor — which is called the counter- part {p), and is distinguished from a mere cop}' as bearing the actual signature of the lessee (which a mere copy does not), and as forming an instrument on which the lessor can sue the lessee, A lessee who executes the counterpart of a lease or any person claiming mider him, cannot dispute its admissibility in evidence, or impeach its validity on the ground of the original lease not being properly' stamped (q). A counterpart is primary' evidence against the lessee, and all the persons claiming under him, of the contents of the lease, and of the execution thereof b}' the lessor (r) . The ordinar}'- rule is, that where the lease and the counterpart Discrepancy conflict, the lease prevails ; but this rule does not apply where the eounterpart mistake is clearly in the lease. So it Avas held by the Court of '^"^^ ^'^''^^e. Appeal in Burchdl v. Clark (h). There, by lease dated in 1784, the ^'"•'-■'^^" ^'• Clark. {ill) 1 Inst. 171 ; 2 Blue. Com. 295. for all the jiarties to execute every part. {%) Co. Lit. 229. (q) Paul v. Meek, 2 Y. & J. 116. \u) riowd. 134, 421 ; Lit. s. 370. (r) Barleifjh v. Slil/hs, 5 T. R. 4(35 ; Jioc (p) "When the several ]iarts of an d. JVcstv. JJaris, 7 East, 363; HiKjhcs v. indenture are interchangeably executed liy Ciitrk, 10 C. B. 90.') ; Houfilttoii v. Kvenig, the several parties, that part or eo[)y 18 C. 1>. 23f> ; Humes v. Pcarcc, 1 F. & F. which is executed by the (,'rantor is usually 283 ; Cole Ejec. 170, 253. called the orij^inal, and the rest are termed (a) Burclicll v. Clark, 2 C. P. D. 88 ; counterparts," 1 Steph. Com. 465, where 46 L. J., C. P. 115 ; 35 L. T. 690; 25 it is said that of late it is most freciuent W. K. 334. 138 Chap. V. — The Lease. Ch.V.Sec. 2. What Leases must he hy Deed. General Eeciuisites. Stamp. Effect of the Loss of a Lease. lessor demised the premises to the lessee for 94;^ years, "yielding during the said term of" 91^ years a certain rent. The comiterpart spoke of the term as 91^ years in hoth instances. The court (Kelly, C.B., diss.), reversing the decision below, held that as it was clear that there was some clerical error in the lease, the counter- part might be used to correct it, and that the premises were recover- able by action brought at the end of the 91 J j^ears. A lease b}^ d^ed must be written or printed : it may be in an}^ character or language : it cannot be exemplified upon wood, leather, cloth, or the like, but only upon parchment or paper : for the Avriting or jirinting upon them can be least vitiated, altered, or corrupted. It must also have the regular stamps imposed upon it b}' statute for the increase of the public revenue (/). The estate of the lessee is not determined by the loss or cancella- tion of the lease, so that the existence of the term can be proved ; for the estate is derived from the lessor, and not from the lease otherwise than as it shows the intention of the parties, which is not altered by the loss or cancellation of the instrument of demise (no- where no counterpart can be found, the landlord is entitled to inspect and take a coj)y of the lease {x). So, on the other hand, in a proper case, the tenant may obtain an inspection of the dupli- cate or counterpart lease {ij). Under an agreement that the lessor would, at the request and costs of the lessee, grant a lease, the lessor is not entitled to charge the tenant with the expense of a counter- part {z). Statutory Form under 8 & 9 Vict. c. 124. U.sual Words of Demise. Sect. 3. — Form of Lease. An attempt has been made by the legislature to shorten leases, and accordingly the Leases Act, 1845, 8 & 9 Vict. c. 124, gives a concise form, which may be adopted if parties desire it {a). But this form is somewhat inaccurate, and is, it is believed, seldom used (h). The usual words by which a lease is made are, " demise and lease," or, " demise, grant and to farm let; " but any words which amount to a grant are sufiicient to make a lease (c) ; and it may be laid down for a rule, and whatever words are sufficient to explain the intent of the parties, that the one shall divest himself of the {t) See the Stamp Act, 1891, a consoli- dating Act, post, Appendix, A. ; and see also Sect. 13 of this chapter. {u) Head V. Brovkman, 3 T. R. 151 ; Lord Ward v. LumUy, 5 H. & N. 87, 656 ; 29 L. J., Ex. 322. {x) Doc V. SlUjht, 1 Dowl. 163 ; Doc d. Morris v. Itoe, 1 M. & W. 207. (//) JJoc d. Child V. ILoe, 1 E. & B. 279 ; CoJe Ejec. 120, 200. {z) Jennings v. Major, 8 C. & P. 61 ; see post, Sect. 13. {a) See post, Appendix A., Sect. 1. {b) Numerous precedents of leases, &c., are given in Ajipendix B., post. (c) Co. Lit. -45 ; 2 Blac. Com. 318. Sect. 3. — Foem of Lease, 139 l^ossession and the other come into it, for any determinate time, <-'h. V. Skc. 3. whether the_y run in the form of a licence, covenant, or agreement, -^Q*'^" of Lease. are of themselves sufficient, and will in construction of law amount to a lease for years as effectually as if the most proper and pertinent words had been made use of for that purpose ; for a lease of years being no other tlian a contract for the exclusive possession and l^rofits of the land on the one side, and a recompense of rent or other income on the other, — if the words made use of are sufficient to i")rove such a contract, in whatsoever form they are introduced, or howsoever variously applicable, — the law calls in the intent of the parties, and moulds and governs the words accordingly (d). Where the owner in fee of premises demised them for a term of 999 years, and afterwards released to the lessee the reversion in fee ; and the latter, by indenture reciting the demise, did " grant, bargain, sell, assign, and set over " the premises for the residue of the term of 999 years : — held, that there was a resuscitation of the term by virtue of these words (e). In Cottce v. liicliardson, the plaintiff in consideration of 530/. to be paid by A. demised to him premises for 55 years at the yearlv rent of 84/., and subject to covenants to repair, &c. The consideration not having been paid, A. assigned to the plaintiff the residue of the term then unexpired, subject to the rents and covenants, and with a power of sale. In pursuance of that power the j)laintiff, in consideration of 500/. " bargained, sold, assigned, and transferred, and set over " to the defendant the said premises, to hold " for the residue of the term of 55 j-ears," subject to the yearly rent of 84/., and the covenants contained in the lease to A. ; and the defendant covenanted to pay the rent and perform the covenants. The defendant having entered, it was held, that although the mortgage by A. to the plaintiff operated as a merger of the term originally granted, yet the assignment by the plaintiff" to the defendant created a new lease for the residue of the unexpired term, and consequently the defendant was liable on the covenants (/). Although no specific words are necessary to create a lease, yet Lease must there must be words used which show an intention to demise (//) : inteutiou to therefore, where, on the letting of land to a tenant, a memorandum Demise, was drawn up, the terms of which were, that he should on a future day bring a surety and sign the agreement, neither of which he ever did ; it was held, that the memorandum was a mere unaccepted proposal, and did nt)t operate as a lease (//) ; an agreement bearing even date with a lease, by which it was agreed that the lessor should (d) Bac. ALr. tit. Leases (K.) ; Smitli (/) C'ot/.cc v. Richardson, 7 Exch. 148. L. & T. 84, So (2nd ed.). For di.stincti(m (y) Breiver v. Hill, 2 Anstr. 413; 3 between lease and licence, sec ante, \). 133. R. K. 596. (c) Dcnn d. Wilkins v. Kcduijs, 9 East, {h) Doe d. Biiiejham v. Carticriijht, 3 366 ; 9 R. K. 581. B. & A. 326. 140 Chap. V. — The Lease. Ch. V. Sec. 3. manage the farm leased for the lessee ; the lessee giving 12s. a week Form of Lease. ^^ ^j^g lessoi", and " allowing him and his famil}^ to reside and have the use of the dwelling-house and furniture free of rent : " has heen held not to be a lease {i) ; and where a contract was made between A. and B., that B. should receive certain sums of money from A., and should build certain houses on A.'s land, and procure responsible tenants for the same at a given rate, and himself pay the rent from a certain day till he procured such tenants : it was held that no tenanc}^ was created between A. and B. (A). The word " clcdi " is said to be a sufficient word to make a lease for years (I), and even a " licence " to inhabit or enjoy {ni), if it give The Particular Words which have been decided upon, ^n exclusive right to occupy {n), may have the same effect Intercssc tcrmiHi. words " covenant, grant, and agree " that A. shall have the lands for so many years, enure as a lease for years (o) ; so the word " covenant " will make a lease, though the words " grant and agree " be omitted (jj). So a covenant "to stand seised," if made by the owner, or a covenant for quiet enjoyment {q) is a lease (?•) : for a covenant together with an entry amounts to a lease ; but a covenant merely does not vest the estate in the lessee, but only gives him a right to enter and possess it ; and therefore the estate is not vested in him till actual entry (s) . A lease, however formal (not being a bargain and sale under the Statute of Uses), creates only an interesse termini before entry it). Whether Lease or Agreement. Sect. 4. — Consti'tictioii of Lease. Before the Real Property Act, 1845 (8 & 9 Vict. c. 106), s. 3, required all leases for more than three years to be by deed, questions ver}^ frequently arose whether a particular instrument was intended to operate as an actual lease, or merely as an agreement to grant one. The decisions were numerous and conflicting (»), but as the Act of 1845 has very considerabl}^ diminished their importance, it is sufficient to state here that their general eff'ect may be taken to be that the intention of the parties was considered, and that the courts would construe the document ver}^ liberally in order to effectuate that intention {.r). (/) Doe d. Hmjhcs v. DerDi, 9 C. & P. 494 ; Mayhcw v. Siiftle, 4 E.'& B. 347. (k) Taylur v. Jackson, 2 C. & K. 22. {I) Co. Lit. 301 b ; lUfjU d. Green v. Proctor, 4 Burr. 2209. (m) Hall V. SeahriqTd, 1 ]\[od. 14. (ii) Ikij. x.Morrish, 32 L. J., M. C. 245. (o) Whillock V. Hortov, Cro. Jac. 91. {j}) lUeheirds v Sely, 2 Mod. 80. {q) Doe d. Pritchard v. Dodd, 5 B. & Adol. 689. (r) Right d. Bassett v. Thomas, 3 Burr. 1441, 1446 ; 1 W. Blac. 446. (s) Copley V. Hcpicorth, 12 JMod. 1 ; Co. Lit. 37. {() Burnett v. Earl of Guildford, 11 Exch. 19 ; Anderson v. Eadcliff', E. B. & E. 806. And see Sect. 17, infra. (it) See Chapman v. Bluck, 4 B. N. C. 187 ; Chapman v. Turner, 6 M. & W. 100 ; Piau-son v. Eicke, 7 A. & E. 451. (,r) See Poole v. Bcniley, 12 East, 168. Sect. 4. — Construction of Lease. 141 A written contract not under seal made since the Act of 1845 for a longer term than three years, or for three years to begin from a subsequent day, or even for a less term if the rent reserved is less than two-thirds of the full improved value of the thing demised, can- not operate as a lease, or create any term, it being "void at law." But it may operate as an agreement for a lease {y), and so be enforced in equity b}" a decree for a specific jierformance {z), or even treated as an actual lease {a). An action at law may be maintained upon it for not granting, or not accepting, as the case may be, a lease pursuant to such contract {h) ; but not an action for not giving possession at the time appointed for the commencement of such lease, because the possession bargained for is not a possession as a tenant at will or from year to year, but a possession for a term of years to be created by the lease (c). Such last-mentioned action lies, however, ujjon a contract for a less term than three years {d). Even when the contract is for more than three years, if the tenant be allowed to enter and take possession under such contract, and pays any of the rent therein expressed to be reserved, a tenancy from year to year will be thereby created upon the terms of such contract, so far as they are applicable to and not inconsistent with a yearly tenancy {e). Actual payment of rent is not always essential; if the payment be allowed to stand over by mutual consent, that is sufficient ( /') ; payment of the rent does not of itself create a tenancy' from year to 3'ear, but is only evidence from which a jury ma}- find the fact (g). Where payment of rent unexplained would ordinarily imply a yearly tenanc}-, it is open to the payer or receiver of such rent to prove the circumstances under which such payment was made for the purpose of repelling such implication (//). Until there had been a payment of rent, or something equivalent to such payment, a distress could not, before the Judicature Acts, be made for the rent expressed to be reserved, no actual tenancy at an agreed rent having been created {i). But it is otherwise with respect to an agreement for a lease which contains an express sti2)ulation for an Ch. V. Skc. 4. Comtruction of Lease. Effect of void Lease. Effect of Entry uuder- void Lease. Claiitoii v.. Bldkey. {y) Tidcy y. MoUcU, 16 C. B., N. S. 298; 33 L. J., C. P. 235 ; Hayne v. Cnmmings, 16 C. B., X. S. 421 ; over- ruling Stratton v. Pettitt, 16 C. B. 420. {z) Parker v. Tasivcll, 2 De G. & J. 559 ; 27 L. J., Ch. 812 ; Coweii v. Phillips, 33 Beav. 18. [a) See Wahh v. Loimhilc, 21 Ch. ]}. 9, and p. 91, ante ; but that case has no appli- cation to a void lease not ca])able of being construed as an agreement for a lease. [b) Bond V. Iio,sli7i). Ex.96. Compare these cases with /ifo?/a;u; (y) Goodtitlc d. Edicanls v. BaUcy, V. Kensington Vestry, L. R. 2 C. P. 565 ; Cowp. 6t)0 ; Shep. Touch. 81 (sect. 13). 36 L. J., iM. C. 105. (::) Wrights. Dickson, 1 Duw. 114, 147. {t) Payler v. Homcrsham, 4 M. & S. (a) Strickland v. Mcu-iccU, 2 C. & .M. 423 ; 16 E,. R. 516 ; Simons v. Jolmson, 539. And see sect. 24, post. 3 B. & Adol. 175 ; Bctln v. Cooper, 9 {h) Anon., Lofft, 398 ; SaiuUnian v. il. k W . 701 ; Major v. Sullshun/, 2 Breach, 7 B. & C. 96 ; Hare v. Ilorlon, 5 L). & L. 763, 768. ' U. L Adol. 715 ; Eei/. v. Xevlll, 8 Q. 15. (ii) VonltoUcn v. Knoiclcs, 12 II. & W. 4.'J2, 463 ; Eni^t London W. IV. Co. v. 602. Trustees of Mile End Old Town, 17 (,). P.. (*•) Solly V. Forbes, 4 'Moo. as ; Hothani 512; Lyndon v. Stanhridge, 2 H. iV X. V. East Indi'X Co., 1 T. R. 638 ; 1 R. R. 51. 4333. 144 Chap. V. — The Lease. Ch. V. Sec. 4. Construction of Lease. Parol Evidence inadmissible to vary writing. Exceptions. Ambiguity. Custom of Country. Cases illus- trative of exception on ground of Ambiguity. The general rule with regard to the admission of parol evidence to explain the meaning of, or to add to or alter, the express terms of a written instrument, is, that it shall not be admitted (c). Thus where ])roperty has been conveyed by deed, parol evidence of an agreement to apportion the rent of the current quarter, contrar}' to the terms of the deed, is inadmissible [d). So parol evidence is inadmissible to show that a particular close was intended to be included in or to be excluded from the deed (e). The exceptions to such rule are — 1, where, although the deed is clearl}' enough expressed, some ambiguity arises from extrinsic circumstances ; 2, where the lan- guage of a charter or deed has become obscure, and the construction doubtful from antiquity ; 3, where the grant appears uncertain, owing to a want of acquaintance with the grantor's estate ; 4, where it is important to show a different consideration consistent with but not repugnant to that stated in the deed itself; 5, where it becomes necessary to show a different time of deliver}- from tliat at which the deed purports to have been made ; 6, where it is sought to prove a customary right not expressed in the deed, but which is not inconsistent with any of its stipulations ; 7, where iraud or illegality in the formation of the deed is relied on to avoid it. If a clause in a deed be so ambiguously or defectively expressed, that a court of justice cannot, even by reference to the context, collect the meaning of the parties, it will be void on account of uncertainty (/). But this is the last rule of construction ever resorted to. Where a party granted a manor by a particular name, and he had two manors of that name, parol evidence was admitted to show which of them he meant ; and where there was a demise of premises in Westminster, late in the occupation of A., particularly describing them, part of which was a yard, parol evidence was received to show that a cellar situated under that yard, but which was then in the occupation of B., another tenant of the lessor, was not intended tO' pass {g). Evidence of usage was received to show that a room which had not been occupied with a certain messuage did not pass under a demise of that messuage, together with all the rooms, chambers, and appurtenances thereunto belonging (//). AVhere a lease grants a right of way, evidence may be received of the state of the premises at the time of granting the lease, and then the judge will put a construction on the lease as to the line along which the way granted runs ; but if it is uncertain on the words which of (c) See Chitty on Contracts (13tli ed.) at p. 132. Tiie rule appears to be the same, vv'hether the written instrument be a deed under seal or not. {d) Fluin V. Calow, 1 M. & G. 589. (e) Mercs v. Ansell, 3 Wiis. 27.5 ; Doe d. Norton v. Webster, VI A. & E. 442 ; Barton v. Dawes, 10 C. B. 261. And see Minton v. Geiger, 28 L. T. 449. (/) Anon., 1 Mod. 180 ; Doc d. IVijnd- ham V. C'areiv, 2 Q. B. 317. (g) Doc d. Freeland v. Burt, 1 T. R. 701 ; 1 R. R. 367 ; Faddock v. Fradley, 1 C. & J. 90. [h] Kersluke v. While, 2 Stark. 508;. 20 R. R. 731. Sect. 4. — Construction of Lease. 145 two ways is intended, parol evidence may be given to show which Ch. V. Sec. 4. the grantor meant (/). Comtruction \\ here an expression used m a written instrument has technic meaning, parol evidence is admissible to show that it has been used technical*'^ ^ in that sense, and not in its ordinary meaning in common parlance, meaning, although that may be perfectly clear and unambiguous in itself: therefore, where a lessee of a coal mine covenanted to get the whole of the coals " not deeper than or below the level of the bottom of the mine," at a particular j^oint, it was held, that parol evidence of the understanding amongst miners was admissible to show that the word "level" had a particular technical meaning diiferent from its ordinary signification of " horizontal line." It might be question- able whether a previous agreement between the parties for a lease of the same mine, and for which the lease in question was substituted, was also admissible in evidence for the same purpose {li). Again, where in a lease of a rabbit warren, &c., the lessee covenanted tbat on the expiration of the term he would leave on the warren 10,000 rabbits, the lessor paying for them 60/. per thousand, it was held, that parol evidence was admissible to show that, by the custom Admissibility of the country where the lease was made, the word " thousand," as E^-i^'^jice it applied to rabbits, denoted twelve hundred (/). Wliere the lessee of a coal mine covenanted to pay a certain share of all such sums of money as the coals should sell for at the pit's mouth, evidence of the lessee's having accounted with the lessor, and paid him the share of the moneys produced by the sale of coals elsewhere, was not considered admissible to explain the intention of the parties (w). Where a lessee made an agreement for a lease, and the under-lessee contracted to erect a shop-front to the house ; in ejectment for a forfeiture for not erecting the shop-front, it was held, that the oriiiinal lease by which a penalty was imposed, if the lessee allowed a trade to be carried on upon the premises, was not admissible in evidence for the defendant to explain the meaning of the words " shop-front" in the agreement (^z). Since the passing of the Calendar (New Style) Act, 1750, 24 Geo. 2, Dates. c. 23, for altering the style, a lease of lands by deed, to hold from the feast of Et. 2Iichael, must, unless there be a custom to the con- trary, as in Kent (o), be taken to mean New Michaelmas, and cannot "Xew be shown by extrinsic evidence to refer to a holding from Old Michaehnas, unless there be such custom, or a reference in the lease {i) Osborne v. Wise, 7 C. k P. 761. Gci-rard v. Clifton, 7 T. K. 676 ; 1 B. i: P. \k) Clayton v. Grcgson, 5 A. & E. 302 ; 524. 4 N. & M. 602 ; 6 Id. 694 ; Shore v. (n) Doe d. Nash v. Birch, ] il. & W. Wilson., 9 CI. & F. 365. 402. (/) Smith V. Wilson, 3 B. & Adol. 728. (o) Farley d. Mayor, iLc., ofCantcrhunj, [m) Clijton V. WahmUy, 5 T. R. 564 ; v. Wood, 1 Esp. 198. L.T. 10 Michaelmas.' 146 Chap. V. — The Lease. Ch.V. Sec. J. Construction of Lease. Cases illustrative of the other Exceptions. Evidence of Custom. JViijiilcsworth V. iJaUison. to a prior holding from Old Michaelmas {p). But this rule has heen held to relate only to leases hy deed ; for in a lease by parol made to commence at Lady-Day, evidence is admissible to prove that by the custom of the country Old Lady-Day was intended {q). If tliere be any ambiguity or contradiction in expressing the time of the commencement of a lease, the lease is construed beneficially for the lessee, on the principle that every man's grant shall be taken most strongly against himself (;•)• Where a man granted an estate for life, without saying whether it was for his own life or for that of the grantee, parol evidence was received to show what interest he had in the estate : for if he was tenant in fee, it was considered that the grantee should take an estate for his own life ; but that if the grantor himself was a tenant for life only, the grantee would take an estate for the grantor's life only (s). The express terms of a lease cannot be controlled by the custom of the country ; but if the lease be entirely silent as to matters regulated by such custom, e.g., as to the time of quitting, evidence of the custom of the country may be given to fix the time {t) ; similarly, although no right to an away-going crop is reserved in a lease, if there are no covenants which either in express terms or by implica- tion of law exclude such right, the lessee may produce parol evidence to show that he is entitled to such away-going crop by the custom of the country (tt). So evidence of custom for an away-going tenant to provide work and labour, tillage and sowing, and all materials for the same in his away-going year, the landlord making him a reason- able compensation, has been received, although there was an express written agreement between the parties, when that agreement was not inconsistent with such custom (x). Parts of a Lease by Deed. Sect. 5. — Description of the Demised Premises. (a) GeneraUij. A lease by deed usually consists of the following parts : viz. 1. What is usuallv called the Premises, which contain a statement of {2)) Doc d. Spicer v. Lee, 11 East, 312 ; Doe d. Hall v. Benson, 4 B. & A. 588 ; Dc7in d. Peters v. Hopkinson, 3 D. & K. 507 ; iiviith v. Walton, 8 Bing. 23.5. iq) Doe d. Hall v. Benson, 4 B. & A. 588 ; Furlcyd. Mayor, ). All leases for years, whether they begin in prresenti or in futuro, must be certain : that is, thej^ must have a certain beginning and a certain ending, and so the continuance of the term must be certain : otherwise they are not good {c). Unless the time of the commencement of the lease be stated, it cannot be known when the rent is to become due or when the landlord is entitled to distrain for it. But, tliough the commencement of a term must be fixed with certainty, it will be sufficient if it be so fixed when the lease is to take effect in interest or possession ; for until that time it may depend upon an uncer- taint3% viz., either a possible contingency, which is to precede the interest or j)OSsession, or upon a limitation or condition subsequent ; but where it is to be reduced to a certainty upon a precedent contingency, such contingenc}^ must happen in the lives of the parties ((/). A lease to commence after the determination of a prior lease begins Commence- at once, if the previous lease be void at law : so a lease intended to DetRimina- commence in future, which misrecites the prior lease on which it tion of prior depends in a material point, begins immediately (e). But if the new lease had misrecited a lease to A., and had then been made for twenty-one years, to commence after the expiration of the term of A., the misrecital would be unimportant, and the new lease would begin from the determination of A.'s term ( /'). If no date is fixed for the commencement of the tenanc}', it is Comnience- usually taken to commence at the date of the lease. This, however, o.ite of""^ may be negatived by internal evidence, as where a lease dated oh the Lease. 20th of December was held, from the fact that the first payment of U"less there A •' IS hvidi'iice to a quarterly rent was to be on the 25th of IMarch, to commence on the contrary. 25th of December (g). The words "from the day of the date" "From." mean either inclusive or exclusive, according to the context and subject-matter ; and the court will construe them so as to effectuate the intention of the parties (//). Generally speaking, a lease from 25th March commences the next day and ends on 25th ]March, {a) Smith V. Dcni, 2 M. k W. 684 ; (r) Co. Litt. 46 1). ^/«)- Where a deed has no date, or an impossible date, as the 30th of February, and in the deed reference is made to the date, that Avord must be construed " delivery ; " but if it have a sensible date, the word date occurring in other parts of the deed means the day of the date and not of the deliver}' ; and therefore, in covenant on an indenture of lease dated the 24th day of December, 1822, whereby the defendant agreed^ within twenty-four calendar months then next after the date of the indenture, to procure a certain thing to be done : it was held, that the deed took effect from the day of the date, and that the twenty- four calendar months reckoned from the date {q). Where a lease was dated 25th March, 1783, habendum " from the 13th March nam last past,'' and it was proved that the deed was not executed until some time after the date, it was held, that the term commenced on the 25th March, 1783, and not in 1782(;-). A deed having been made in the month of August in a leap year, the words " the 29th Feb- ruary then next ensuing " were construed to mean the 29 th February in the next leap year (.s). A lease operates as a grant only from the time of its execution, and the tenant is not liable ior previous. (i) Ackland v. Lutley, supra ; Wilkin- son V. Gaston, 9 Q. B. 1-37. (k) Llcicellyn v. Wiliimns, Cro. Jac. 258 ; Clayton's case, 5 Rep. 1. {I) Underhill v. Norwood, 10 Ves. 209. {m) Doe d. Cox v. Bay, 10 East, 427 ; 10 K. R. 345 ; Steele v. Mart, 4 B. & C. 272 ; 28 R. R. 256 ; Styles v. Wa.rdlc, 4 B. & C. 908; 28 R. II. 501 ; 4 L J., K. B. 81 ; Cooper \. FmUvsou, 10 M. & W. ()94 ; Doc d. DarUncfton v. Vlph, 1-3 Q. B. 204 ; Bird V. Baker, 1 E. & E. 12. [n) Styles V. Wardlc, 4 B. & C. 908. (o) Miller V. Mayuicaring, Cro. Car. 397 ; Bassett v. Letuis, 1 Lev. 77. (p) Bac. Abr. tit. Leases (L. 1) ; Anon., 1 Mod. 180; Foote v. Berkeley, 1 Sid. 164. iq) Styles V. IFurdle, 4 11 & C. 908. (r) Steele v. Mart, 4 B. & C. 272. (.s) Chcij/miinv. Beccham, 3 Q. B. 723. Sect. 6. — Term granted (Commencement). 161 breaches of covenant, although committed after the date of the Ch. V. Sec. 6. deed (t). But the duration of the term is to be computed from the Term (/ranted day in that behalf mentioned in the lease (u). ment). In general a letting b}' parol will be considered to commence from Commence- the day of the tenant's entering, and not with reference to any par- ™ent with rcfer6DCG to ticular quarter day (.r). But where a tenant entered in the middle Entry. of a quarter, and afterwards paid for that time to the beginning of a succeeding regular quarter, from which time he paid half-yearly, his tenancy was held to commence from the quarter succeeding his entering (y). Where, however, the tenant entered in the middle of a quarter, upon an agreement to pay rent " quarterl}^ and for the half-quarter," the jury, under the judge's direction, found that the tenanc}^ commenced from the quarter day preceding the entry (^). A party having taken possession on the first of August, and at the Michaelmas following paid the half-quarter's rent, and continued afterwards to pay quarterly on the usual feast days, it was held, that a notice to quit at Michaelmas was sufficient ; and that although the landlord had at first given notice expiring with the half-quarter, it was not necessaril}^ to be inferred from that circumstance that the tenancy from year to year commenced on that day (a). Where a tenant under a lease continued to hold after the expiration of it as a tenant at will, and assigned it to another, the tenancy of the assignee was held to commence at the day on which the original tenancy com- menced under the lease, notwithstanding the assignee came in on a different day (h). A lease may commence at one day in point of computation, Different and at another in i)oint of interest (c), and it mav commence Computatiou ^ , " , "I lime and from a da}" that is past; therefore, a lease "to hold from a da}' Interest. past for fift}^ years then next ensuing, the said term to com- mence and begin immediately after the determination of an existing lease in the same premises," was not esteemed uncertain as to its commencement ((?)• If when the lease is to take effect in interest or possession the Lea.ses to years be certain, it is sufficient, for until that time it may depend the^^amleiiin" upon an uncertainty ; either upon a possible contingency precedent to of Coutin- its begmnmg in possession or interest, or upon a limitation or con- ° dition subsequent ; but if it is to be reduced to a certainty upon a (0 Shaw V. A'aif, 1 Exch. 412; Jcrvtn 1807 ; Adams. Ejec. 107 (4th ed.). V. Tomkinson, 1 H. & N. 195, 206. («) JJuc d. Savage v. Staj/lcfon, 3C'. & P. (») Bird V. Baker, 1 E. k E. 12 ; 28 275. L. J., Q. B. 7. (b) Doc d. Castleton v. Samuel, 5 E.sp. (.v) Kemp V. Derrctt, 3 Camp. 510 : 14 173 ; 8 R. R. 845. R. R. 820. (c) Smith L. & T. 106 (2nd ed.). (y) Doc d. Hokomh v. Johnson, 6 Esp. (d) Enys v. Donnithornc, 2 Bnrr. 1190 ; 10 ■ 9 R. R. 800. Jifoorc v. Micsijrovc, Hob. IS ; 2 Roll. Abr.' (~) Doc d. Wadviorc v. Sclwijn, Hil. T. 850. L.T. 11 162 Chap. V. — The Lease. Ret'ereiiee to a Certainty may cure an Uncertainty. Ch. V. Sec. 6. contingency precedent, the contingency must have happened in the Term granted J^ygg ^f the parties (c). [Commence- ,, , ■ , c -jii • • e ^ ment). Though there appear no certanity oi years m tlie lease, yet it by reference to a certainty it may he made certain, it is sufficient (/). Thus if a lease be granted for years after lives in being, though it is uncertain at first when that term will commence, because those lives are in being, yet when they die it is reduced to a certainty, and that is certain which can be rendered so ((/). So a lease maybe QTanted for a term of years to commence at the determination of a previous term for years which is still subsisting (/i). If the lease be made to commence from the end and expiration of the previous term, then, if the previous term be surrendered or forfeited, &c., the second term commences immediately ; but if made to commence after the end and expiration of the twenty-one years aforesaid, then the second term would not commence until after the expiration of the twenty-one years (i). Where a lessor let Whiteacre to A. for twenty years, and Blackacre to B. for forty years, and then demised both to C. for a term of years, habendum from the end or determination of the said several demises to A. and B., it was held, that as to Whiteacre the term granted to C. commenced immediately upon the expiration of that granted to A., and was not to be deferred until the expiration of the demise to B. (jc). Where a lease is thus made to A., reciting a former one to B., and demising for a term of 3'ears to commence at the determination of B.'s lease, if in fact no such lease had been made to B., then A.'s term will com- mence at once (/) ; and the same if the lease be void (y»). But if there be such a former lease, and it be misrecited in a material part in the second, then the new lease can commence presentl}- only in the enumeration of years, but not in interest until the expiration of the first lease {n). If A. seised of lands in fee grant to B. that, when B. shall pay to A. twenty shillings, from thenceforth he shall hold the lands for twenty-one years, and afterwards B. jiay the twenty shillings : in this case B. has a good lease for twenty-one years from the date of the payment (o). If one make a lease to another for so many years as J. S. shall name, this at the beginning (e) Shep. Touch. 272. (/) I 'I- ((/) Goudright v. Mrlmrdson, 3 T. R. 463 ; Bac. Abr. t\i. Leases (K.) ; Bro. Abr. tit. Leases, 71 ; Clarke v. Sydenham, Yelv. 85 ; S. a, 1 Brownl. & G. 136. (h) 1 Roll. Abr. 849 ; Dyer, 261 b, pi. 28 ; Lord Paget' s case, 1 Leon. 199 ; Smith V. Da7/,2M. & W. 684 ; Blatehford, app., Cole, resp., 5 C. B., N. S. 514 ; Doc d. Agar v. Brown, 2 K. & B. 331. (i) Co. Lit. 45 b ; IFrotesley v. Adams, Dyer, 177, pi. 35 ; Plowd. 198. (/i) IFiucl ham's case, 5 Co. R. 7 ; Moor. 191 ; Cro. Eliz. 199 ; 2 Leon. 105. (/) Bac. Abr. tit. Leases {L. 1). {ill) Id. ; Co. Lit. 46 b. {n} Bac. Abr. tit. Leases {L. 1) ; Co. Lit. 46 b. As to misrecital of date, see Bowc V. Huntingdon, Vaugh. 73 ; Bac. Al)r. tit. Leases (L. 1) ; Palmer's case, 4 Co. R. 74. (0) Shep. Touch. 273 ; Co. Lit. 45 b ; 6 Co. R. 35 a ; 1 Roll. Abr. 849. Sect. 6.— Term granted (Commencement). 1(53 is uncertain; but when J. S. has named the years (in the lifetime Ch. V. Sec. 6. of the lessor) this ascertains the commencement and continuance of ^'"'"^ granted the lease accordinglj^ : but if the lease had been made for so many meni). 3'ears as the executors of the lessor should name, this could not be made good by any nomination {p). A lease made to another, until a child en ventre sa mere shall come to the age of twenty-one years, is not good as a lease for years but at will only {q). (e) Dnrdtion of Term (/ranted. The duration of leases for years ought to be ascertained either by "^vimt the express limitation of the parties at the time of making, or by a is'^req'ui^'ite reference to some collateral act, which may with equal certainty g>-neially. measure the continuance thereof, otlierwise they will be void (r). So an agreement for a lease must mention the term, and from what day it is to commence, otherwise it will not be sufficient to satisfy tbe Statute of Frauds (s). A demise for "one 3'ear from the date hereof, and so on from year to year, until determined by three months' notice," has been held to create a tenancy for two 3'ears at -^"^ d. Chacl- tlie least, determinable at the end of the second or any subsequent year by notice expiring at the end of such year (0- So a demise " for six months, and so on from six months to six months until determined b}' either part}-," will create a tenanc}' for one year at the least (»). So a demise may be made from two years to two years, or from three years to three years, or the like (.r). So a lease may be made for seven years, and afterwards from year to year (ij), but an agreement to let from year to year, and for so long as the tenant pays rent, and tbe landlord has power to let, confers no particular estate beyond a tenancy from year to year (z). An instrument, bv which A. agreed to let and B. to take certain premises, on the terms that B. should pay certain specified sums varying in amount at the end of every three years up to a specified date, and which provided that from and after that date " lie should paij the dear annual rental of 91. till the end if the lease," without mentioning any period at which the lease was to terminate, was held good only for tlie time previous to the date at which the 1)/. was to connnence (a). {])) ]>ac. Abr. tit. Leases (L. 2) ; Co. Lit. oociured in tlie text by mistake ; as to this 45 b ; 2 Leon. 86 ; Plowd. 6, 373, .524. see Chap. VIII., s. 7 (b), post.) {q) Say v. Smith, Dowd. 271 ; Bisliop [u) Jicy. v. Ckaivlon, 1 Q. 13. 247. of Bath's case, 6 Co. R. 35 b ; Bac. Abr. (./•) Heniiimjs v. Brabason, 2 Lev. 45 • tit. Leases (L. 3). Roc d. Brec v. Lees, 2 W. Biac. 1171 ; 3* (r) 15ae. Abr. tit. Leases (L. 3). Piest. Conv. 76. And .see Ukhards v. (,v) Bayley v. Fitzmaurice, 9 H. L. Cas. Sehj, 2 Mod. SO ; 3 Keb. 638. 78 ; and ante, p. 96. (y) Brown v. Trumpcr, 26 Deav. 11. (0 Doe d. Chadhorn v. Green, 9 A. & E. (z) Wood v. Beard, 2 Ex. D. 30 ; 46 658. (In some previons editions of this L. J., Q. B. 100 ; 35 L. T. 866. work the expression "one j'ear certain" (a) Gwijhuc v. Maynestotic, 8 C. kV. Z02. 11—2 164 Chap. V. — The Lease. Ch. V. Sec. 6. Term granted {Duration). Certaint}' with reference to collateral Matters. Determina- tion of Tenancy from Year to Year at end of First Year. Tenancy for Two Years certain. Tenancy for One Year. Lease nntil Premises re- qi;ire(l to be pulled down. If a man grant another lease of land for ten 3'ears, and that if at the end of every ten 3'ears he shall pay the lessor a certain quantity of tiles, then he shall have a perpetual demise of the land from ten years to ten years continually following : this is a good lease for ten years only, and bad as to the rest for uncertainty (b). If a man make a lease for years, without saying how many, it is a good lease for two years certain ; because for more there is no certainty, and for less there can be no sense in the words (c) ; but if a man lease lands for such a term as both parties shall j^lease, it is but a lease at will(f?). A tenancy from year to year is determinable at the end of the first as well as of any subsequent year, unless in creating such tenancy the parties use words showing that they contemplate a tenancy for two years at least (e). If jjremises are taken " for twelve months certain, and six months' notice to quit afterw^ards," tlie tenancy may be determined at the end of the first year by a six months' previous notice to quit (f) . A lease for one year and so on from year to year until the tenancy thereby created should be determined as after mentioned, with a provision that either party might determine the tenancy by three months' notice, creates a tenancy for two years certain (r/). A demise for a year, and so from year to year, is, as we have seen, a lease for two years certain at least (g) : so if a parson make a lease for a year, and so from year to year as long as he shall continue parson, or as long as he shall live ; this is a lease for two years at least, if he live or continue parson so long (h). A lease for "the term of six months, from the 1st of January, and so on for six months to six months," imtil six calendar months' notice is given, the first payment of rent to be on the 1st of July, is a tenancy for twelve calendar months at least (/). Where a railway com])any let premises on a weekly tenancy, with a collateral agreement that the tenant might have them until the company required to pull them down, it was held that the company, on requiring the premises for their own occupation, and not to pull them down, might determine the tenancy at a week's notice (A). {b) Say V. Smith, Plowd. 271. ((■) Bishop of Bath's case, 6 Co. R. 35 ; ]3ac. Abr. tit. Leases (L. 3). {d) Bac. Abr. tit. Leases (L. 3) ; Bishop of Bath's case, supra ; Com. Dig. Estates (H. 1) ; Richardson Y. Langridge, 4 Taunt. 128 ; 13 R. R. 570. (e) Doc d. Clarke v. Smaridge, 7 Q. B. 957 ; Doe d. Plumer v. Nainby, 10 Q. B. 473 ; Bac. Abr. tit. Leases (L. 3) ; Agard V. King, Cro. Eliz. 775 ; Legg v. Strud- vncl, 2 Salk. 414 ; Denn d. Jaeklin v. Carticright, 4 East, 29, 32 ; Harris v. Evans, 1 Wils. 262 ; Birch v. Wright, 1 T. R. 380 ; 1 R. R. 223. (/) Thorn2)sonY. Mahcrlcy, 2 Camp. 573 ; and see as to "certain," Langton v. C'arleton, L. R. , 9 Ex. 57, and Gardner v. Ingram, 61 L. T. 729. (g) Doe d. Chadborn v. Green, 9 A. & E. 658 ; and supra. (/t) Bac. Abr. tit. Leases (L. 3). {i) Reg. V. Chawton, 1 Q. B. 247 ; Simpso7i v. Margitson, 11 Q. B. 23. {k) Cheshire Lines Connnittee v. Lewis, 50 L. J., Q. B. 121 ; 44 L. T. 293— C. A. Sect. 6. — Term granted (Duration). 165 An agreement that the tenant shall not be disturbed so long as Ch. V. Sec. 6. the rent is paid and the landlord remains in possession creates a ^f!l"' ff'^'^^f^ '■ _ ^ . (Duration). tenancy during the joint continuance of the life of the tenant and n 1 / 7 Lease so long the estate oi the landlord (/). as Rent paid, A lease "for seven, fourteen or twenty-one years, as the lessee -"i*! Landlord • in possession. shall think proper," is a good lease for at least seven years, and not Option to void for uncertainty (;«). A lease made in 1775, for "three, six or determine. nine years, determinable in 1788, 1791 or 1794," is a good lease for Dannr. nine years, determinable at the end of three or six years (»). But the lessee alone has the option to determine such lease at the earlier periods, on the ground that every doubtful grant must be construed in favour of the grantee (o). The usual form of making such leases at present is to insert the full term in the habendum, and add a proviso at the end for one or either of the parties to put an end to the term at the shorter periods. If the option be given expressly to each party, the lease may be determined by either, or by his representative entitled to the reversion or term (p) ; and where the option was given to the respective parties, their executors and administrators, it was held that the devisee of the lessor might determine the lease (^7). But where the lease contained a proviso that if either of the parties, their respective heirs or executors, should wish to put an end to the term at the end of seven or fourteen years, six months' notice in writing should be given under " his or their respective hands," and the lessor died, leaving three executors ; it was held, that a notice signed by two of them only, although given on behalf of themselves and the other executor, was not a good notice within the terms of the proviso (;•). A lease for twenty-one years expressed to "be determinable nevertheless in seven or fourteen years if the said parties hereto shall so think fit," is determinable only by consent of both the parties, although it may have been their intention to give the option to either of them(s). The notice must end with the first seven or fourteen years (or other stipulated period), according to the terms of the proviso, and not at any other time (t). It must not end at noon on the right day («)• Sometimes it is made a condition precedent that the tenant shall not only give the above notice, but also duly pay all the rent, and {I) Wood V. Davis. 6 L. R., Ir. 50. 464 ; 11 R. R. 4.55. (?ft) Ferguson v. Cornish, 2 Burr. 1032. (/•) Rvild d. Fisher v. Cutlicll, 5 East, (?i) Goodri(jM d. Hall v. Richardson, 491 ; 7 R. R. 752 ; Doc d. Aslin v. Sum- 3 t. R. 462. mcrsdt, 1 B. & Ad, 135, 141. (o) Dann v. Spurrier, 3 B. & P. 399 ; (s) Foivell v. Frank, 3 H. & C. 458 : 7 R. R. 797 ; Doe d. JVebb v. Dioson, 9 34 L. J., Ex. 6. East, 15 ; 9 R. R. 501 ; Price v. Dyer, 17 (0 Cadby v. Martinez, 11 A. & E. 720 ; Ves. 356 ; 11 R. R. 102. Bird v. Baker, IE. & E. 12 ; 28 L. J., {2}) Goodricjht v. Mark, 4 M. & S. 30 ; Q. B. 7 ; Cole Ejcc. 398. Bird V. Baker, 1 E. & E. 12. {u) Fayc v. More, 15 Q. B. 684. (2) Roe d. Bamford v. Haylcy, 12 East, 166 Chap. V. — The Lease. Ch. V. Sec. 6. Term granted (Duration). AVhere there is a recurring Number of Years. "Where the Term depends on a Contin- gency. perform all the covenants on his part, to the termination of the notice (x). Such a condition is unreasonable, and ought to be objected to in the first instance {y). A lease for three, seven or ten years, determinable on notice, stipulated that a quarter's rent should be paid by the tenant on taking possession, the same to be allowed him for the last quarter's rent " on the determination of the said tenancy ; " after a notice to determine the lease at the expiration of the third year had been given, and before its expiration, the parties verbally agreed that the party should continue tenant for another year, no express mention being made of the terms of the tenancy ; it was held, that the tenant continued to hold subject to the terms of the original lease, and consequently that the payment on taking possession was applicable to the last quarter of the fourth year (z). If a lease be made for twenty-one years, with a further covenant b}^ the lessor, " that the lessee shall have the same for twenty-one years more after the expiration of the said term, and so from twenty-one years to twenty-one 3^ears, until ninety-nine years thence next ensuing shall be complete and ended," the first twenty-one years are not to be reckoned part of the ninetj'-nine A^ears (a). Where one made a lease for three years, and so from three years to three 3'ears until ten years should be expired, it was held to be a lease but for nine 3'ears, and that the odd year sbould be rejected, because that could not come to fall within an}- three entire years, according to the limitation {h). Where there was a demise of freehold and copyhold lands at an entire rent, to hold so much as was freehold for twenty-one 3'ears and so much as was copyhold for three years, and there was a covenant for renewal of the lease of the copyhold every three years toties quoties during the twenty-one years under the like covenants ; and that in tbe meantime, and until sach new leases should be executed, the lessee should hold the said lands, as well copyhold as freehold, &c. ; it was held, that this was onl}' a lease of the copyhold for three years, and that the lessor, after the three years, might recover the premises in ejectment against the lessee, there not being any fresh lease granted (c). Sometimes a term is limited conditionally, ex. gr. for ninety-nine years if the lessee or some other person or persons therein named shall so long live (d). Where one made a lease for forty years, "if his wife or any of their issue should so long live : " it was adjudged that the lease was not determined by the death of one of them, but should con- tinue till all were dead, by reason of the disjunctive or, which goes to (x) See for instance Parker v. Shepherd, 6 L.'T. 665. (y) Cole Eiec. 397. {z) Finch V. Miller, :, C. B. 428. (a) Manchester Collf BrudnelVs case, 5 Co. K. 9 b ; (/) Bac. Abr. tit. Leases (L. 4) ; Roll. Daniel v. IliU, Cro. Jac. 377 ; 1 lioll. W. Hep. 309. 197 ; Balks v. JFcvinau, 2 Yeiitr. 74. {(j) Wrenford v. Gyles, Cro. Eliz. 643 ; (wt) Bi.-. B. 7 ; Browne v. Burton, 5 D. & L. 289 ; Steele v. Mart, 4 B. & C. 272. 172 Chap. V, — The Lease. Ch. V. Sec. 8. Express Cove- nants and Agreements. on account of the uncertainty of the time when the term was to commence and end, the covenants were adjudged to be void, as they depended on the estate {g) : but although this is the case with respect to all dependent covenants, it is otherwise of covenants which are independent (//)• (b) Covenants, ichcther "Running with Land.'' Meaning of " Hvmning with Laud." Covenants are either real or personal ; the former are such as are annexed to an estate, or are to be performed on it, and are said to S2Knccrscase. "run with the land," so that he who has the one is subject to the other. A covenant is said to run with the land when either the liability to perform it, or the right to take advantage of it, passes to the assignee of that land. A covenant is said to run with the rever- sion when either the liability to perform it, or the right to take advantage of it, i^asses to the assignee of that reversion (/). Cove- nants which run with the land bind those who come in by act of law, such as the personal representatives of the assignee of a lessee, as well as those who come in by act of the parties (A) ; for the personal representatives of a lessee for j^ears are his assigns (I). Covenants which run with the laud therefore bind the assigns, although not mentioned. But in preparing covenants which are intended to run with the land, the '* assigns " should always be mentioned, for though some covenants will bind them although not mentioned, and others will not bind them although mentioned, yet there is a middle class, in which assignees are bound if mentioned, but not otherwise, and it is prudent to provide for the possibilitj' of a covenant being held to belong to this class. All implied covenants run with the land {m), but with regai'd to express covenants some little uncertainty has prevailed. The general rules {n) appear to be that (1) an assignee, whether of the reversion or the term, can, although not named in the covenant, avail himself of those covenants which touch and concern the thing demised ; (2) that of such covenants, those which concern something not in being at the time of the demise, bind the assignees if named, but otherwise not ; and (3) that covenants which do not concern the thing demised, but are personal between the covenanting parties, do not bind assignees in anv case. {y) Capenhurst v. Capcnhurst, Sir T. Rayin. 27 ; Hayne v. Maltby, 3 T. K. 438 ; Co. Lit. 45(3. {h) Northcote v. Vndcrhill, 1 Salk. 199 ; 1 Ld. Eaym. 380. (i) Spencer's case, 1 Smith, L. C. (k) Esp. N. P. 290. (0 Hornidf/e v. Wihon, 11 A. & E. 645 ; Wollaston v. Hnkcicill, 3 M. & G. 297 ; Hopwood V. Whaley, 6 C. B. 744 ; 6 I). & L. 342 ; Collins V. Crouch, 13 Q. B. 542. (m) As to implied covenants, see Sect. 9, post. (n) See Spencer's case, 1 Sm. L. C. ; Smith L. & T. 388 ; Fawcett, L. & T. 247. Sect. 8. — Express Covenants (" Eunnino with the Land"). 173 It seems that in equity the question whether assignees are bound turns on the doctrine of notice, so that by the effect of the Judicature Act it will, if the facts arlmit of it, be immaterial whether a particular covenant run with the land or not (o). This doctrine, which applies in cases arising out of the relation between vendor and purchaser to restrictive covenants only (_p), has been held not to apply to the affirmative covenant of a tenant implied from the covenant in a lease not to suffer a nuisance, of which covenant the assignee of a sublease had notice (q). The following covenants seem to run with the land, so as to bind the assignee, whether of the reversion or the term, although not named : A covenant to pay rent (?•) or taxes : To repair (s), or to leave in repair (t) : to maintain a sea wall in esse {it) : to repair, renew and replace tenants' fixtures and machinery fixed to the premises (x) : Not to plough iy) : to use the land in a husbandlike manner (z) : to lay dung on the demised land annually (a) : To reside on the demised premises during the term (h) : to permit the lessor to have access to two rooms excepted from the demise (c) : To carry all the corn produced on the demised land to the lessor's mill to be ground {d) : to leave the land as well stocked with game at the end of the term as it was found to be at the beginning of it (e) : To supply demised houses with good water (/') : For quiet enjoyment (g) : To produce title deeds (/<) : To make further assurance (i) : Cii. Y. Sec. 8. Express Cove- nants {'^ Mun- ning with the Zand"). Binding assignees by notice. AVhat Cove- nants run with the Land. Eent. Repair. Residence. Game. Quiet enjoy- ment. (o) See Tulk v. Moxliay, 2 Ph. 774 ; Wilson V. Hart, L. R., 1 Ch. 463, and like cases discussed in the notes to Spencer's case, 1 Sm. L. C. {p) Hayicood v. Brunswick Permanent Benefit Building Society, 8 Q. B. D. 403— C. A. ; Austerhcrryv. Oldham Corporation, 29 Ch. D. 750— C. A. [q) Hall V. Ewin, 57 L. T. 830, and Chap. VII., Sect. 7, post. U-) Parker v. Webb, 3 Salk. 5. (s) Dean and C. of JFindso7-'s case, 5 Co. R. 24 ; Coiuin v. Kemise, W. Jon. 245 ; Smith v. Arnold, 3 Salk. 4 ; Martipi V. Clue, 18 Q. B. 661 ; 22 L. J., Q. H. 147. (0 Yin. Abr. Covenant (K. 19) ; Doe d. Strode v. Seaton, 2 C, M. & R. 730 ; Mnrtyn v. Clue, supra (last point). (u) Morland v. Cook, L. R., 6 Eq. 212, 267 ; 37 L J., Ch. 825. {x) Williams V. Earle, L. R., 3 Q. B. 739 ; 37 L. J., Q. B. 231. (!/) Cockson V. Cock, Cro. Jac. 125. (::) Walsh v. Watson, Esp. N. P. 295. («) V. Davis, MS. M. T., 42 Geo. 3. [h) Taten v. Chaplin, 2 H. Blac. 133 ; 3 R. R. 360. (c) Cole's case, 1 Salk. 196, S. C. sub nom. Bush v. Coles, 1 Snow, 389, Carth. 232. {d) Vyvyan y. Arthiir, 1 B. i: C. 410 : 2 D. & R. 670 ; 1 L. J., K. B. 138 ; 25 R. R. 437. See Hemingway v. Fernandcs, 13 Sim. 228. ((■) Hooper v. Clark, L. R., 2 (}. B. 200 • 30 L. J., Q. B. 79; 16 L. T. 152- \:> W. R. 347. (/) Jourdain v. Wilson, 4 B. & A. 266. {fj) Letvii V. Campbell, 8 Taunt. 715 ; 21 R. R. 516 ; Campbell v. Lewis (in error), 3 P.. & A. 392 ; Xoke v. Awder, Cro. Eliz. 375, 436. (/() Barclay v. Paine, 1 Sim. .t Stu. 449 ; 24 R. R. 206. ((■) Middlemore v. Goodhall, Cro. Car. 503; Kimjdon v. Nottlc, 4 M. &; S. Vi ;. 14 R. R. 462 ; King v. Jones, 5 Taunt. 418 ; 4 M. & S. 188 ; 15 R. R. 533. 174 Chap. V. — The Lease. Ch. V. Sec. 8. Express Cove- nants {'■^Run- ning tvith tlie Land"). Renewal. Public-house management. To insure. Vernon v. Smith. Not to assign without Licence. To renew the lease {k) : to endeavour to procure a renewal of the lease for another life (in an underlease by lessee for lives) {I) : To build a new smelting mill in lieu of an old one in a lease of mines {m) : In a public-house lease, to conduct the business so as to afford no ground whereby the licence should be suspended, &c., or be in danger of being suspended, &c. (n) : or not to sell liquor not bought of lessors (o), their successors or assigns (j:»). Moreover, the fact that the ownership of the reversion to the demised property has become severed from the ownership of the business of the lessor does not prevent the lessor or his representa- tives from enforcing such a covenant ; and the assigns of the lease, if they comi)ly with the covenant and purchase from the successors of the lessor, will be entitled to the benefit of a proviso for abatement of rent dependent on observance of the covenant {q). There is also authority that the covenant to insure (r), the covenant not to assign or sublet without licence (s), and the covenant not to carry on a particular trade {t), run with the land. AVith regard to the covenant to insure against fire, it was held in Vernon v. Siidth {)■), to run with the land, on the ground that the Building Act, 14 Geo. 3, c. 78, s. 83, in that case assumed to have a local applicatio nonly, enables the landlord to have the insurance money laid out in rebuilding, so that the covenant was in effect a covenant to repair. The statute has since been held to have a general application («), so that if the reasoning in Vernon v. Smith be correct, the covenant to insure runs with the land. The covenant not to assign or sublet without licence was expressly held to run with the land in Williams v. Eark {x) ; but in the later case of West v. Dohh {y) (where the point arose, but did not require {k) Istccd V. Slonelcy, 1 Anderson, 82 ; Brooke v. BulkeUij, 2 Ves. jun. 498 ; Roc V. Hayley, 12 East, 464 ; 11 R. R. 455. {l) Sim-pson V. Claijton, 4 Bing. N. C. 758 ; 6 Scott, 469. {711) Sam^ison v. Eastcrhy, 9 B. & C. 505 ; Easterly v. Sampson (in error), 6 Bing. 644 ; 1 C. & J. 105. \n) Flcetvood v. Hull, 23 Q. B. D. 35 ; 58 L. J., Q. B. 141 ; 60 L. T. 35 ; 37 "W. R. 714, per Charles, J. (0) Clcgg V. Hands, 44 Ch. D. 503 ; 59 L. J., Ch. 477 ; 62 L. T. 502 ; 38 W. R. 433— C. A. ; and see Chap. XVII., Sect. 5, post. p) White V. Southend Hotel Co., [1897] 1 Ch. 767; 66 L. J., Ch. 387 ; 76 L. T. 273 ; 45 W. E. 434 — C. A., affirming Kekewich. J., lb., and applying the principle of the cases in the last two notes, and oiTatem v. Chaplin, note (h), supra. {q) lb. ('/•) Vernon v. Smith, 5 B. & A. 1. And see post, Chap. XVII., Sect. 1. (s) Williams v.. Earlc, L. 1!., 3 Q. B. 739 ; 37 L. J., Q. B. 231. {t) Mayor of Congleton v. Pattison, 10 East, 130. Tlic obiter dicta of Lord EUeii- burough and liayley, J., seem to be in accordance with principle. In IVilson v. Hart, L. R., 1 Ch. 463, it was held that a tenant from year to year was bound by his landlord's covenant that no building to be erected should be used as a beershop, although such covenant did not run with the land. («) Ex parte Goreley,3i L. J., Bank. 1. In Vernon v. Smith, the judgnieut of Best, J., proceeded indepemlently of the statute. (./•) Williams V. Eurle, L. 11., 3 Q. B. 739 ; 37 L. J., Q. B. 231 ; 19 L. T. 238 ; 16 W. R. 1041. (?/) West V. Dol)h, L. R., 4 Q. B. 634 ; 38 L. J., Q. B. :^89 ; 9 B. & S. 755. Sect. 8. — Express Covenants (" Piunning with the Land"). 175 to be decided), Blackburn, J., who was one of the two judges who Ch. V. Sec. 8. decided Williams v. Earle, pointed out that in that case assigns were Express Cove- Plants {'■'■ Run- named m the covenant, and seems to have wished to confine his ning with the judgment accordingly (^). However this may be, the covenant not ^"'^^ ^' to assign or sublet appears to concern the thing demised in relation to its state at the time of the demise, and consequently to bind assignees whether named or not (a). It has been stated in man}^ prior editions of tliis work that a To pay for covenant b}'^ a lessor to pay on a valuation for all trees planted {h), meutr^ was a personal covenant not running with the land, and for this. Grey v. Cuthhertson (h), was cited ; but that case, which is verj' briefly reported, seems to have been decided on the ground that assigns were not named in the covenant : and from the later case of Gorton v. Gregory (c) it may perhaps be inferred, though the point was not expressly decided, that a covenant to pay for improvements to be executed on the land, whether by the lessor or the lessee, runs both with the land and the reversion, if assigns be named: and this is borne out in principle by the important case of Mcmsel v. Norton (d), which is more fully noticed elsewhere (e). In MinsJiidl v. Oakes, a covenant to repair and leave in repair (inter Minshull w. alia) all buildings which should or might be thereafter erected during " '^^' the term on the demised premises was considered to be, not a covenant absolutely to do a new thing, but to do something conditionally, viz. if new buildings were erected on the demised premises during the term to repair them ; and, as when built they would be part of the thing demised, it was held that the assignee was bound, although not named in the covenant (/). In this case the court expressed an opinion that the rule that the naming the assigns in the covenant will bind them in relation to a thing not in esse at the time of the demise, was neither laid down in Spencer's case, nor consistent with reason. The rule, however, appears to have been recognized as good law in many other cases, both prior {g) and subsequent to Qi) Minsludl v. Oakes. And it seems to be consistent with reason that the namino- of the assigns should vary the liability (i). A covenant which is merely personal or collateral to the thinf» Personal I'll J. -ii ii 1 1 .1 • , , „ "^ Covenants do demised does not run with the land or the reversion, and tlierefore not run with assignees are not bound even though they be expressly named. Of ^^^^ ^'"^'^• {z) And see per Hayley, 11, in Paid v. (e) Post, Chap. XX., Seer. 5. Xui:s<:, 8 13. & V. 4.S9 ; Doc d. Chccre v. (/) MiiishuU v. Uakcs, 21 L 3 Ex Smith, 5 Taunt. 79.-) ; 15 R. R. 660 ; 194 ; 2 H. & N. 793. Lalhj V. Wills, 3 Wils. 33. (y) Savipsoii v. Eastcrby, (j 15iii<,'. 644, ^ct) As to covenant not to assign or E.xch. ; JJout/h/i/ v. JJowmun, 4 (J. i;. 444 • sub-let, see post, Chap. XVII., Sect.'2. Grcenaianj v. JJart, 14 C. B. 34u. [0) Grtnj V. Cuthhertson, 4 Doug. 351 ; (//) IViUiams v. Earlc, uhi supra • 2 Chit. R. 482 ; 1 Sehv. x\. P. 448. Wait v. Dubb, ubi supra. (r) See post, note (/;). (;) But see contra. Spencer's case. 1 {d) Manscl\.Xorton,-nC\\.]).{C.A.)7Q'd. Sni. L. C. 176 Chap. V. — The Lease. Ch. V. Sec. 8. Express Cove- nants (" Run- ning tvith the Zand"). Personal Cove- nants, not running with Land. Boxes in Theatre. Personal Chattels. Condition for Ee-entry. Operation of Conveyancing Act. the nature of such personal covenants are these : — A covenant by a lessee to replace chattels which should become damaged or be super- seded by new machinery (/>) (although it would have been otherwise in the case of a covenant to replace fixtures) (l) : to give the lessee the option of pre-emption of a piece of ground adjoining tlie demised premises (in) : not to sell hay, &c. (;t) : not to keep a beershop within a certain distance of the demised premises (o) : a covenant to pay rent and repair, made witli a mortgagor and his assigns, in a lease granted by himself together with the mortgagee {})) : a covenant in an under- lease, Avhereby the lessor covenanted to observe and indemnify the lessee against the covenants in the superior lease, one of which was to build several houses on the land (»7. 637 ; 28 L. J., C. P. 169. {/) Eoonc V. Einr, 2 \\ . \',hu: 1312; (h) Mwsonv. Smythies, 3 H. & N. 843. L.T. 12 178 Chap. V. — The Lease. Ch. V. Sec. 8. Express Covenants {Dependent or Independent). Conditional Covenants for Repair. Allowance of Timber by Lessor. breach that it was in good repair at the time of the demise, and that the lessee suffered it to decay ; for the lessor must repair before the lessee is liable (i). Where the plaintiff let to the defendant a messuage, barn, stable, and buildings, and the defendant agreed to repair the said messuage, buildings, and premises, the same heing first imt into reiiair hy the plaintiff : it was held, that the repair by the plaintiff was a condition precedent to the obligation on the defendant to keep in repair ; that that condition precedent could not be divided : and that the plaintiff was not entitled to recover for the non-repair of any part of the premises without having first repaired the whole (A-). So if a lessee covenant to repair, " provided always, and it is agreed that the lessor shall find great timber," &c., this makes a covenant on the part of the lessor to find great timber by the word " agreed," and is not to be a qualification of the covenant of the lessee Q.) : but where the words were, "he the said lessor finding, allowing and assigning timber sufficient for such reparations during the said term, to be cut and carried by the lessee ; " it was held not to be a covenant to provide timber, but a mere qualification of the covenant to repair {nt), and where the lessee agreed to repair and the lessor to find timber for repairs, Kay, J., decided that the lessee could not recover damages from the lessor Avho had neglected to find materials for an injury caused by non-repair (m). Where a lease for lives contained a covenant b}^ the lessee at his own expense to keep the demised premises in proper repair, " having or taking in and upon the said demised premises competent and sufficient house-bote, hedge-bote, fire-bote, plough-bote and gate-bote for the doing thereof, without committing any waste or spoil : " it was held in an action for not repairing, that the covenant for repair was absolute, with a licence to the lessee to take competent and sufficient house-bote, t^c. : and that the finding such house-bote, &c., was not a condition precedent to the liability of the lessee to repair (o). Where the lessee covenants to put and keep the demised premises in repair, " being allowed rough timber but not on the stem upon the demised premises, the timber to be fetched and carried at the expense of the lessee : " In an action of covenant for not repairing, it is sufficient to allege that the lessor was ready and ivilling to allow and provide sufficient rough timber not on the stem, without stating that he did actually furnish it ( j?). (i) Slater v. Stone, Cro. Jac. 645. (k) Ncale v. Ratcliff, 15 Q. B. 916 ; 20 L. J., Q. B. 130 ; Hunt v. Bishop, 8 Exch. 675 ; 22 L. J., Ex. 337 ; Hutchinson v. Read, 4 Exeh. 761 ; Coicard v. Gregory, L. K., 2 C. P. 153, 172 ; post, Chap. XVI., Sect. 1 (a). {I) Bac. Abr. tit. Covenant (A). (m) Thomas v. Cadrvallader, Willes, 496. (n) Tucker V. Linger, 21 Ch. D. 18. (o) Dean and C. of Bristol v. Jones, 1 E. & E. 484 ; 28 L. J., Q. B. 201. {p) Martyn v. Clue. 18 Q. B. 661 ; 22 L. J., Q. B. 147. Sect. 8. — Express Covenants (Dependent or Independent). 179 Where a lessee covenanted to repair a house before the 1st of June, Ch. V. Skc. 8. 5,000 slates being found by the lessor towards the repair, and after- Express ' . . . Coveua litis wards to keep in repair during the term ; it was held, that finding {Dependent or the slates was not a condition precedent to the covenant to keep in « ^P^" «" )• repair, but onl}' to the covenant for putting the premises in repair For Repairs— before the 1st of June (q). In a farming lease the lessee covenanted '^^"''^^" with the lessor that the lessee should at all times during the term repair and glaze the windows and also trim the hedges, &c., when necessary, " the said farmhouse and buildings being previously put in repair and kept in repair by the lessor; " the latter clause was held to amount to an absolute and independent covenant on the part of the lessor to put the premises in repair (r). The words " and the whole of which is agreed to be left to the superintendence of the lessee and the lessor's son," annexed to a covenant by the lessor to do certain work, are neither a condition precedent to, nor con- current with, the covenant (s). The covenant to repair generally, and to repair within three months after notice in writing, are in- dependent covenants (t) ; and where a lessee covenanted to leave premises in repair at the expiration of the term, and also that the lessors might direct the lessees to complete the repairs by giving six months' notice in writing, it wms held, that these were two distinct and separate covenants, the former of which was not qualified by the latter (^0 ; but where a lease contained a covenant b}' the lessee to repair the premises at all times (as often as need or occasion should require) and "at farthest within three months after notice," it was held to be one entire covenant, the former part of which was qualified by the latter (.r)- Where there was an agreement that the Expenditure lessee should spend 200L in repairs to be inspected and approved of RepairsTo°be by the lessor, and to be done in a substantial manner, and the lessee approved by Lessor was to be allowed to retain the mone}^ out of the first year's rent of the premises, it was held, that the lessor's approval was not a condi- tion precedent to the lessee retaining the rent (i/) , Where a lessee covenanted to expend a certain sum in substantial and beneficial improvements, under the direction or with the approbation of some competent surveyors to be named by the lessor, the appointment of the surveyors was held to be a condition precedent to the lessee's liability to expend the money (z). Where the lessor covenanted to (-/) MuccUstone v. Thomas, AVilles, 146. 446 ; 13 W. R. 389 ; Few v. Perkins, 36 (r) Cannock v. Joues, 3 Exeh. 233. L. J., Ex. 62 ; 15 W. R. 713. (s) Jones V. Cannock, 'i H. L. Cas. 700 ; (m) Wood v. Bay, supra. 5 Exch. 713 ; Smith v. Dv.rrant, 9 H. L. (.r) HorscfcU v. Tcsiar, 7 Taunt. 3Sn ; Cas. 19-2. cited 4 C. B., N. S. 551. {t) Doe d. Morecraft v. Mciu; 4 B. & C. (y) Dallman v. King, 4 Bing. X. C. 105, 606 ; 1 C. & P. 346 ; Wood v. Daij, 7 recognized in Stadhart v. Lee, 3 B. & S. Taunt. 646; BaiiHs v. Le Gros, 4 C. B., 364, 371. N. S. 537, 552 ; Cornish v. Cleife, 3 H. & C. (-) Coomhe v. Greene, 11 M. & W. 480 12—2 180 Chap. V. — The Lease. Express Covenants [Dependent oi Independent). Option to determine Term, &c. Ch. V. Sec. 8. pay the lessee for the manure, &c., at the end of the term, upon the lessee delivering up the farm, if in the meantime he cultivated it on the four-course s^'stem and performed and kept all and singular other his covenants in the lease : it was held, that the delivery up of a certain agreement pursuant to a covenant in the lease was not a condition precedent to the tenant's right to recover for the manure &c. (a). Where by deed reciting an agreement to let copyhold premises, A. covenanted that as soon as he had procured a licence from the lord of the manor he would lease them to B. for the then residue of a term of years from a certain day, and B. covenanted that he would repair during the term so to be granted, it was held that B. was liable on this covenant after having occupied the j^remises for the whole term, though no licence had been procured from the lord nor any lease ever made (h). Where in a lease for seven years, containing the usual covenants that the lessee should pay the rent, keep the premises in repair, &:c., there was a proviso that the lessee might determine the term at the end of the first three or five years, giving six months' previous notice, and that then, from and after the expiration of such notice, and payment of all rents and duties to be paid by the lessee, and performance of all his covenants until the end of the three or five years, the indenture should cease and be utterly void, it was held, that the payment of rent and performance of the other covenants Avere conditions precedent to the lessee's determination of the term at the end of the first three years, and that his merely giving six months' notice, expiring within the first three years, was not sufficient for that purpose (c). A mining lease contained numerous covenants by the lessees, and also a j)roviso that if they should desire to quit the premises at the end of the first eight years, and should give eighteen months' notice thereof to the lessor, then, all arrears of rent being paid, and all and singular the covenants and agreements on the part of the lessees having been observed and performed, the lease should at the expiration of the eighth year be utterly void ; but, nevertheless, without prejudice to any claim or remedy which any of the parties might then be entitled to for breach of any of the covenants ; it was held, in error, that the performance of all the covenants by the lessees was a condition precedent to their right to determine the lease {d). Another Court of Error, however, appears to have entertained a diff"erent opinion (e). A lease con- 2 Dowl., N. S. 1023 ; Cannock v. Jones, 3 Exch. 233 ; 5 Id. 713 ; 3 H. L. Cas. 700 ; Bunt v. Bishop, 8 Exch. 675. (a) Neinson v. Smythics, 3 H. & N. 840 ; 28 L. J., Ex. 97 ; 1 F. k F. 477. (6) Pistorv. Cater, 9 M. & W. 315. (c) Porter V. Shcphard, 6 T. R. 655 ; 3 R. R. 305. (d) Friar v. Grey, 5 E.xch. 584, 597; 4 H. L. Cas. 565. (e) Grey v. Friar, 15 Q. B. 901. Sect. 8. — Express Covenants (Dependent oe Independent). 181 tained a proviso, that if the lessor should give notice for the delivery Ch. V. Sec. 8. up of the land to him, the lessee covenanted to surrender it up, and ^xprcss ^ _ . , . . Covenants that the lessor might take possession of it, paying the lessee com- {Dependent or pensation for money expended thereon : it was held, that the « pen ent). proviso did not operate as a mere covenant by the lessee to give up on notice, but expressly gave the lessor power to take possession : and that he might do so without having first paid compensation (/). So where it w'as agreed that the lessor should within eighteen months Covenant to from the date of the lease build a cattle-shed, the whole to be left to the superintendence of the lessee and her son ; it was held, that this latter provision was not a condition precedent to or concurrent with the lessor's covenant to build (r/). On a lease of some coal mines, the lessees covenanted that the Covenant for lessor should, when he thought fit, employ a fit and proper person of particular to weigh the coals and keep the accounts, the person so weighing and Person, kc. keeping the accounts to be paid by the lessees ; but in case such person did not duly attend to his duties, the lessees were authorized to discharge him. It was held, that the appointment of a fit and proper person was a condition precedent to the liability of the lessees to pay the wages, and that therefore they were not bound to pay the wages though they had not dismissed him {h). An assignee of a term in coal mines covenanted with the lessee that he would, so long as he should be in receipt of the rents of premises, pay to the lessors the rent payable by the original lease — and would keep the lessee harmless and indemnified against the rents and covenants of the lease: it was held, that the words "so long as he should be in the receipt of the rents " did not extend to the covenant to in- demnify ii). A covenant in a farming lease provided that the tenant should consume and convert into manure, and spread on the premises, all the turnijas, &c., grown thereon ; but that in case he should sell off any part thereof, which he was at liberty to do, then that he should for ever}^ ton of turnips, &c., so sold oft", bring back and spread thereon one ton of manure within three months after. In an action on this covenant the plaintift' set out the first part only, and assigned for breach that the defendant carried away fourteen acres of turnips, without converting the same into manure and spreading the same : it was held that the covenant was an alternative one, and that the plaintift" should have negatived the bringing back, within the time limited, an equivalent in manure {k). (/) Doc d. Gardner v. Kennard, 12 {h) Lawton v. Sutton, 9 M. & W. 795. Q. B. 244. (i) Crossfiddx. Morrison, 7 V. B. 286. ((/) Cannock v. Jones, 3 Exch. 233 ; 5 {k) Fiichards v. Bluck, 6 C. B. 437 ; 7 Id. 713 ; 3 H. L. Gas. 700. D. & L. 325. 182 Chap. V. — The Lease. Ch. V. Sec. 8. Express Covenants {How dis- charged). Before Breach by Deed. By the Operation of Acts of Parliament. Discharge of Covenant not to Build, &c. (d) How discharged. Covenants cannot be discharged before breach otherwise than by deed ; therefore a parol licence or agreement, dispensing with or! changing the terms of such an obligation, could not before the Judicature Act be pleaded in bar to an action of covenant {I) ; and it does not seem that that act has made any difference. With respect to the operation of acts of parliament in discharging the obligation of a covenant there is this difference ; viz., that where a man covenants not to do an act or thing which it was lawful to do, and an act of parliament is made afterwards and compels him to do it, the statute discharges the covenant. So, if a man covenant to do a thing which is lawful, and an act of parliament comes in and hinders him from doing it, the covenant is discharged (z??). But if a man covenant not to do a thing Avhich at the time was unlawful, and a subsequent statute makes the action lawful, such statute does not discharge the covenant (n) ; and if the covenant be to do that which is afterwards made unlawful in part only, it must be performed so far as it continues lawful (o). If there be a covenant to do a thing which is unlawful by statute, the covenant will not be made lawful b}^ the repeal of the statute, because the covenant w^as bad ab initio ; although it w^ould be otherwise, if the covenant had been originally lawful but had been made unlawful by a statute which was itself afterwards repealed {p). In accordance with these principles, it has been held that a covenant to build a workhouse on the land demised Avas discharged by the operation of the Poor Law Amendment Act, 1831 {q) ; and a covenant not to assign without licence (r), and a covenant not to permit assigns to build (s) by a compulsory assignment to a company under the Lands Clauses Consolidation Act, 1845. Covenants in Law, when implied. Sect. 9. — IiitjAied Covenants and Agreements. (a) Generally. An implied covenant or covenant in law is one which the law intends and implies from tlie nature of the transaction, although not expressed by words in the deed. " A covenant in law, properly (/) Thovipson V. Brown, 7 Taunt. 656 ; Harris v. Goodwm, 2 M. & G. 405 ; West V. Blaknmy, 2 M. & G. 729, 752 ; 9 Dowl. 846. {vi) Brewster v. Kitchell, 1 Salk. 198 ; Doc d. Marquis of Anglesea v. Mugelcy, 6 Q. B. 107, 114 ; Broivn v. Mayor, d;c., of London, 9 C. B., N. S. 726 ; 13 Id. 828 ; Bac. Abr. tit. Conditions (Q. 2) ; Com. Dig. tit. Conditions {Ij. 1). {n) Breivster v. Kitchell, 1 Salk. 198. (o) 2 Eq. Ca. Abr. 26. ( p ) Jacques v. Withy, 1 H. Blac. 65. [q) Doc d. Anglesea [Lord) v. Rugeley {Chnrcliivardcns), 6 Q. B. 107. (/•) Slipper V. Tottenham and Hampstead Junction R. Co., L. K., 4 Eq. 112 ; 36 L. J., Ch. 841. (s) Baily v. De Crespigny, L. R., 4 Q. B. 180; 38 L. J., Q. B. 98. Sect. 9. — Implied Covenants and Agreements. 183 speaking, is an agreement which the hiw infers or implies from the Ch. V. Sec. 9. use of certain words having a known legal oi^eration in the creation ^mphed Cove- ^ . . . . nants and of an estate ; so that, after they have had their primary operation in Agreements. creating the estate, the law gives them a secondary force, by implying an agreement on the part of the grantor to protect and preserve the estate so by these words already created ; as if a man by deed demise lands for years, covenant lies upon the word ' demise,' which imports Upon a or makes a covenant in law for quiet enjoyment " (0- That the word " demise " in a lease for years imports and makes a covenant in law for quiet enjoyment, at least during the continuance of the estate out of which the lease is granted, is clear from all the authorities («)• By the Real Property Act, 1845, 8 & 9 Vict. c. 106, s. 4, the word "give" or the word "grant" in a deed executed after the 1st of October, 1845, " shall not imply any covenant in law in respect of any tenements or hereditaments, except so far as the word ' give ' or the word ' grant ' may, by force of any act of parliament, imply a covenant " (.r). Where a renewed lease of a mill was granted to a bleacher for the purpose of carrying on therein his business, parol evidence was held admissible to explain the special circumstances under which the lease was granted, and from which an implied grant to use the stream for the purpose of the business might be inferred {y). A covenant in law in a demise ceases with the estate of the lessor, "When an and does not necessarily continue during the whole term expressed Co?enant to be granted. Therefore, if a tenant for life demise by indenture ceases. for fifteen years, without any express covenant for quiet enjoyment, upon his death during the term the covenant in law implied from the word " demise " will cease {z). But an express covenant, or one to be implied by construction of words used in the deed b}' way of warranty or contract, would continue in force to the end of the term expressed to be granted, and not merely during the actual con- tinuance of such term(fl). A covenant in law goes to the assignee of the term, and he has advantage of it during the actual continuance of the term (&). But the executors or administrators of the lessor are not liable where the term ceases on his death, and the lessee is subsequently evicted (c). (0 Williavis V. Burrell, 1 C. B. 429. L. J., Ex. 113. (tt) Adams v. Gibncy, 6 Binf;. 656, {z) Sican v. Straiisham, Dver, 257 a ; 666 ; 8 L. J., C. P. 243 ; 32 R. R. 514 ; 1 Leou. 179 ; Owen, 105 ; S." C, cited 6 Nokes' case, 4 Co. R. 80 b ; Holder v. Bing. 666 ; Adams v. Gibne.y, 6 Biug. Taylor, Hob. 12 : Eraser v. Skey, 2 Chit. 656 ; 8 L. J., C. P. 243 ; 32 R. R. 514 ; R. 646 ; lygulden v. May, 9 Yes. 325. Fenfold v. Abbott, 32 L. J.., Q. B. 67. And see the cases as to " (Juiet Enjoy- (a) Williams v. Burrell, 1 C. B. 402 ; meut " further discussed, post, Chap. Bragg y. Wiseman, Brownlow k G. 22. XVII., Sect. 8. ' (6) Bac. Abr. tit. Covenant (E. 5); {x) As in conveyances to railway com- Vyvyan v. Arthur, 1 B. & C. 410 ; 25 panics, &c. R. R. 437. (y) Hall V. Lund, 1 H. & C. 676 ; 32 (c) See note (~) supra. 184 Chap. V. — The Lease. Ch. V. Sec. 9. Implied Cove- nants and Agreements. No implied Covenant by Lessor that Premises lit for Occupation. In general, there is no implied covenant b_y the lessor of a house or of land that it is reasonably fit for habitation, occupation, or cultivation {d) ; nor that the house will endure during the term ; nor that the lessor will do any repairs whatever (c). And if the landlord is bound to do repairs, there is no implied condition that if not done the tenant may quit (/) ; that should be the subject of an express stipulation (//) in the contract of tenancy itself : an oral statement on the subject will usually be construed as an innocent representation, and not as a warranty {h). Furnished House. Smith V. Mar r able. Wilson V. Fincli-Hatton. Infection hy measles. (b) By Lessor of Furnished House. In letting a furnished house, the lessor impliedly promises that it is fit for occupation. So it was held in SniitJi v. Marrahle (i), where a tenant for five or six weeks was held justified in quitting without notice on the ground of the house being infested with bugs ; and this case, although shortly afterwards doubted by more than one member of the same court which decided it (A), was, in 1877, affirmed in Wilson v. Finch-Hation (I), where its principle was held applicable to defective drainage, in the case of a house in London let from the 7th May to the 31st July, and although the drains were repaired b}' the landlord, and the house tendered in a wholesome condition on the 26th of May, the tenant (who had at once declined to occupy) was held neither liable for the agreed rent nor for use and occupation. The princijile of these cases has also been applied to the case of infection by measles (m). (d) Hart v. Windsor, 12 M. & W. 68 ; Sutton V. Temple, Id. 52, overruling nisi prius decisions in Edwards v. Etlicrington, Ry. & M. 268 ; 7 D. & K. 117 ; Collins v. Barroiv, 1 Moo. & R. 112 ; Salisbury v. Marshal, 4 C. & P. 65. (c) Ardcn v. Pullen, 10 M. & W. 321 ; Gott v. Gandy, 2 E. & B. 845 ; Kcatcs v. Earl Cadogan, 10 C. B. 591. (/) Smplice y. Farnsworth, 7 ]\I. & G. 576 ; 8 Scott, N. R. 307. (r/) As in Furnivall v. Grove, 8 C. B., N. S. 400 ; 30 L. J., C. P. 3. (A) See Green v. Symons, 13 T. L. R. 301 ; Longman v. Blount, 12 T. L. E. 520 ; Kcnnardv. Ashman, 10 T. L. R. 213. (0 Smithy. Marrable, 11 M. & W. 5 ; 12 L. J., Ex. 223. And see Cam2)bcU v. Wenlock, 4 F. & F. 716. {k) See, especially, per Parke, B., in Hart V. Windsor, ubi supra. It was, however, expressly approved of by Lord Abinger in Sutton v. Temple, ubi sujira. (I) Wilson V. Finch-Hatton, 2 Ex. D. 336 ; 36 L. T. 473 ; 46 L. J., Ex. 489 ; 25 W. R. 537. The distinction between a furnished and an unfurnished house (which was not ex2^ressly drawn in Smith v. Mar- rable) Avas expressly approved of in Wilson V. Finch-Hatton. The case, although re- argued liefore three judges, Kelly, O.B., Pollock, B., and Huddleston, B., on account of its importance, was ultimately decided without liesitation. In Powell v. Chester, 52 L. T. 732, Bacon, V.-C. (where specific jierformance of an agreement fur lease of a partly-furnished house, resisted on the ground of insufficient water su])ply, was refused for want of evidence), said that Smith V. Marrahle was only an auth(n-ity for the proposition that in taking furnished apartments at the seaside, or for temporary occupation only, there is the implied war- ranty ; but it is submitted that this view of Smith V. Marrable is incorrect, and that both on principle and on the authority of Wilson V. Finch-Hatton, as far as it goes (for Kelly, C.B., appears to have grounded his judgment at least partly upon the brevity of occupation), the duration of the tenancy is immaterial, on the ground — if on no other — that a furnished house is far less easily examined tlian an unfurnished one. {m) Birdv. Lord Grevilc, C. & E. 317, per Field, J. Sect. 9. — Implied Covenants and Agreements. 185 It is no excuse on the part of tlie landlord that lie honestly believed Ch. Y. Sec. 9. the house to be habitable if it turn out in fact not to be so (n). Implied Cove- But there is no implied warrant}' that the furnished house will continue fit for habitation during the tenanc}-, or even that furnished belief. lodgings will continue so, or that a resident landlord of such No warranty lodgings will inform the tenant of the fact of their having become «* continuance & _ <=' '^ ot htness. insanitary (o). (c) By Lessor of Unfurnished House at Loiv Ilent. Another important exception to the rule that there is no implied Implied condition of fitness in letting a house, is contained in s. 75 of the fitness, on Consolidating Housing of the Working Classes Act, 1890, 53 & 54 letting ^ . . , . . . imlurnishea Vict. c. 70. This enactment (whicii applies to lettings at certain house at low low rents only) re-enacts s. 14 of the Housing of the Working ^*'"*' Classes Act, 1885, 48 & 49 Vict. c. 72 (repealed by s. 102), in the following terms : — In any contract made after the 14th day of August, 1885, [that being Housing of the date of the passing of the Act of 1885] for letting for habitation by Ql°^^ l"! p*- pei'sons of the working classes a house or pfirt of a house, there shall be i890, s. 75. implied a condition that the house is at the commencement of the holding in all respects reasonably fit for human habitation. In this section the expression " letting for habitation by persons of the working classes" means the letting for habitation of a house or part of a house at a rent not exceeding in England the sum named as the limit for the composition of rates by sect. 3 of the Poor Rate Assessment and Collection Act, 1869 \J.e. in the metropolis 20/., in Livei'pool 13/., in Manchester or Birmingham 10/., and elsewhere 8/.] and in Scotland or Ireland 4/. This section may, it is submitted, be "contracted out of" b}^ "Contracting express stipulation excluding its operation. The effect of the section is not only that a tenant may quit the Action for house without paying rent if the condition be broken, but may also, '' '^'^° ^' as was held in a case where plaster from a ceiling fell and injured the tenant's wife {p), sue the landlord for damages. (d) By Lessor not to derogate from Grant. Where a landlord demises part of his propert}- for carrying on a particular business he is bound to abstain from doing anything on the remaining portion which would render the demised premises {n) Charsley v. Jones, 53 J. P. 280, per Health Act, 1875, and see, too, s. 7 of the Manisty, J. adoptive Infectious Diseases Prevention (o) SarsoriY. Roberts, [1895] 2 Q. B. 395 ; Act, 1890, and s. 65 of the Public Health 65 L. J., Q. P,. 37 ; 73 L. T. 174 ; 4-3 \V. R. (London) Act, 1891, post. Chap. XXIII., 690; 14 R. 616— C. A. In this case a grand- s. 2. child of the defendant took a fever, with (;>) iraUcer ami IVifc v. Hohbs, 23 which the plaintiff 's wife and child became Q. B. 1). 458 ; 59 L. J., Q. B. 93; ol in'octed. L. T. 688 : 38 AV. R. 63, decided on tiie For penalty for falsely answering Act of 1885, bat as will have been seen, questions of negotiator for hire as to equally applicable to the Act of 1890, the dangerous infectious disorder within six words of the two Acts being exactlv the weeks previously, see s. 129 of tlie Public same. 186 Chap. Y. — The Lease. Ch. V. Sec. 9. unfit for carrying on sucli business in the way in which it is ordi- Imphed Cove- warily Carried on. This was laid down by Stirling, J., in Aldin v. HOHts. • . . . f . Clark (q), in which land was demised for a timber merchant's business Covenant by to a lessee who covenanted to carry on such business, and the lessee Lessor not to -ii i r i • • ^ ^ r ^ • derogabe from was held entitled to damages from the assigns ol the lessor for having Grant. erected, upon adjoining property acquired by them from him, buildings which obstructed the passage of air to drying sheds of the lessee. Grosvenor Hotel Co. v. Hamilton (r) appears to have been decided on the same principle. There the lessor destroj'ed a demised house by vibration resulting from engines, and to a counterclaim for nuisance in an action for rent set up the defence that the house both at the time of the destruction and at the time of the demise was in a weak and unstable condition, and that a house in an ordinary condition would not have been destroyed. The Court of Api^eal held that the lessor was estopped from setting up such a defence as being a derogation from his own grant ; that he was liable for damages as a tort-feasor ; and that the measure of damages was not only the value of the lease but also all loss fairly attributable to the tort. Implied Covenants by Lessee. Covenants, when implied from express Words in other Covenants. (e) By Lessee for tenantlike User. In the absence of any express covenant on the subject, a covenant or promise is implied on the part of the lessee that he will use the buildings in a tenantable and proper manner (s) ; and that he will manage and cultivate the lands in a good and husbandlike manner, according to the custom of the country (t) ; but not that he will make a certain quantity of fallow, and spend a certain quantity' of manure thereon, and keep the buildings in repair, or any other stipulation not p.rising out of the bare relation of landlord and tenant («). Only the prevailing course of good husbandry and management in the neigh- bourhood need be i)roved (x), and will be considered applicable to all tenancies in whatever way created, whether verbal or in writing, unless expressly or impliedly excluded by the terms actually agreed on {ij). Where a lessee covenanted to plough, sow, manure, and cultivate the demised premises (except the rabbit-warren and sheep-walk) in a due course of husbandry, it was held that it amounted to a covenant iq) Aldin v. Clarke, [1894] 2 Ch. 437 ; 63 L. J., Ch. 601 ; 71 L. T. 119 ; 42 W. R. 553 ; 8 R. 252, per Stirling, J. (?•) Grosvenor Hotel Co. v. Hamilton, [1894] 2 Q. B. 836 ; 03 L. J., Q. B. 836 ; 71 L. T. 362 ; 42 AV. R, 626 ; 9 R. 819 — C. A. _ (s) Horse/all v. Mather, Holt, N. P. C. 7 ; Leach v. Thomas, 7 C. & P. 327 ; Har- nett V. Maitland, 16 M. & W. 257. {t) Powleij v. Walker, 5 T. R. 373 ; 2 R. R. 619 ; Leejh v. Hewitt, 4 East, 154 : 7 R. R. 545 ; Hallifax v. Chambers, 4 M. & W. 662 ; Martin v. Gilham, 7 A. & E. 450 ; Wilkins v. Wood, 17 L. J., Q. B. 319. (w) Brown v. Crump, 6 Taunt. 300. {.c) Lerjh v. Hewitt, 4 East, 154 ; 7 R. R. 545. (y) Wifffflesworth v. Dallison, 1 Doug. 190 ; 1 Smith L. C. ; Senior v. Armytaqe, Holt, N. P. C. 197 ; 16 R. R. 627 ; Hutlon V. Jl'arrcn, 1 M. & W. 466. Sect. 9. — Implied Covenants and Agreements. 187 not to plough the sheep-walk (z). Where a lessee covenanted that he Ch. Y. Sec. 9, would, at all times and seasons of burning lime, supph' the lessor and I>»pi^e(i Cove- . . nants and his tenants with lime at a stipulated price, for the improvement of Agreements. their lands and repair of their houses : it was held, that this was an implied covenant also that he would burn lime at all such seasons ; and that it was not a good defence to plead that there was no lime burned on the premises out of wbichthe lessor could be supplied (a). So a covenant b}^ a lessee to pen and fold his flock of sheep, which Flock of he should keep upon the premises, upon such parts where the same ^*^^P* had been usuall}' folded, was held to amount b}' implication to a covenant to keep a flock of sheep (h). A landlord having accepted the offer of a tenant, whose term was expiring, to continue tenant, provided he could not find any other tenant at the rent it appeared to him to be worth b}' a certain day, it was held to be an implied con- dition, that the tenant should allow persons applying for the farm to go over it, and that, the condition not having been performed, the contract w'as at an end(c). On the demise of a brewery, with the Brewery. exclusive privilege of supplying ale, it would seem that no covenant can be implied with respect to such a privilege from the word *' demised " (d). Where in an agreement for a lease from the plaintiff to the defendant of certain works, the plaintiff" agreed to supply to the defendant the whole of the chlorine still waste as it came from the still, at a given rate per cwt., and not to part with an}'^ of the still waste, except to the defendant, it was held, that the defendant was bound to take the whole of the waste which, during his occupancy, came from the plaintiff"s still (c). In Neictoii v. Wihnott Right of a demise was made of a mansion-house and land, with the sole '^"^ ^^°' licence of sporting over all other lands of the lessor's, and the lessor covenanted that if any of his tenants should obstruct the lessee in the enjo3'ment of his licence, then the lessor would, on the requisition of the lessee, give the tenant notice to quit, and would enforce such notice. The court held that there was no breach of this covenant by the lessor subsequently demising some of his lands for a term of years, without any clause to prevent the tenant from obstructing the person having the licence of sporting to enjoy his licence, and without reserving a pow'er to give notice to quit if he did (/). In The Earl of Glasgoiv v. Hiniet Alum Company, a lease of alum jMiuinc; Lease. mines gave the lessee the right to obtain alum from certain coal (•) Duke of St. Albans v. EUta, 16 East, 1 j\I. & W. 690. 35'2 ; 14 R. \\. 361. {d) Hindc v. Gray, 1 M. & G. 195 ; 1 (rt) Earl of Shrewsbury v. Gould, 2 Scott, N. R. 123. B. & A. 487. (c) Bcalcy v. Stuart, 7 H. & N. 753 ; 31 [b) IVcbb V. Plummer, 2B. & A. 746. L. J., Ex. 281. (c) Doc d. Marquis of Hertford v. Hunt, (/) Xeicton v. Wilmott, 8 M. & W. 711. 188 Chap. V. — The Lease. Ch. V. Sec. 9. Implied Cove- nants and Agreements. In Mininc Leases. Implied Cove- nants from Recitals. wastes. A subsequent lease of the coal mines provided that nothing thereby granted should injure the rights of the parties who held the alum mines. The alum existed in the coal wastes. The coal lessees could not thoroughly work the coal without removing the pillars which supported the roof; but by doing this the ahmi would be rendered impossible to be reached : it was held by the House of Lords that the coal pillars could not be removed (//). A covenant will not be implied in a lease of mines for the lessees to sink a j^it or shaft, although various provisions of the lease cannot be carried into effect without their doing so (/t). The tendenc}' of modern decisions is not to imply covenants or stipu- lations which might and ought to have been expressed if intended (i). A recital in a deed may amount to a covenant where it appears to be the intention of the parties that it should do so (A-), and upon such implied covenant an action of covenant may be maintained (0. Distinction between Ex- ception and Reservation. Exception nsually constrned in favour of Lessee. Sect. 10. — Of Excej^tions and Reservations. An exception relates to some existing component part of the thing demised, which is capable of being severed or distinguished from it : but a reservation is properly of some right or profit to arise from the subject of the demise, which had previously no separate existence. A right of way reserved to the lessor by the lease, over the lands demised, is not strictly an exception or a reservation, being neither parcel of the thing demised nor issuing out of it, but is in strictness of law an easement newly created by way of grant from the lessee {ni). But where a lease was made of lands, except and always reserved out of the demise unto the lessor all timber trees, &c., and also except and reserved all roijaltics Avhatsoever to the premises belonging or in anywise appertaining, it was held, that this was an exception or reservation, and was not pleadable as a grant (/?). An exception, being the act and words of the lessor, is usually taken strictlv against him (o). But where a lease contained an exception in {q) Earl of Glasgow v. HiirlctAlum Co., 3 H. L. Cas. 25. (A) James V. Cochrane, 7 Exch. 170 ; 8 Id. 556. See also, as to mining leases, Roivhotham v. Wilson, 8 H. L. Cas. 348 ; DiKjdalc V. Robertson, 3 K. & J. 695 ; Smith V. Darhy, 42 L. J., Q. B. 140 ; Eadon v. Jeffcock, 42 L. J., Ex. 36; in the last of Avhicli cases it was held that when the owner of surface and minerals beneath grants a lease of the minerals, there is not, outside the contract, an implied re- servation of anj' right to have the surface supported by the minerals, (i) Aspin v. Austin, 5 Q. B. 671 ; Dunn v. Sayles, Id. 685 ;Z>ofld. Marquis of Bute V. Guest, 15 M. & W. 160 ; Smith v. Ifayor, d:c. ,of Hanvich, 2 C. B., N. S. 651 ; Sharp V. Waterlwuse, 7 E. & B. 816. (k) Lay v. Mottram, 19 C. B.,N. S. 479. (/) Samjjson v. Easterby. 9 B. & C. 505 ; S. C, in error, 6 Bing. 644 ; 1 C. & J. 105 ; Saltoun v. Houstoun, 1 Bing. 433 ; 25 R. 11. 665 ; Farrall v. Hilditch, 5 C. B.,N. S. 840. (?ft) Durham and Sunderland II. Co. v. IFalker, 2 Q. B. 940. (n) Pannell v. Mill, 3 C. B. 625. (o) Shep. Touch. 77. Sect. 10. — Or Exceptions and Eeseevations. 189 favour of the lessor of the mines and quarries under the demised Ch.V.Sec.io. ijroperty, with fall power to win and work, and also with free way- ^fepi^ons and leave and passage to, from, and along the same ; and the lessor covenanted in using the excepted rights to do as little damage to the soil as possible : it was held, that the lessor was entitled to the absolute use of an underground right of way and not merely to a right restricted to the purpose of working the mines under the demised premises ; but that he was not entitled so to work the reserved mines as to let down the surface {p). "Where a railway compan}' excepted and reserved out of a demise of land a patent slip therein, and the machiner}' connected therewith, with free access thereto "for themselves, their successors and assigns, officers, servants and workmen : " it was held that a licensee of the company might justify using the slip {q). It has been held, too, in a suit for specific per- formance of an agreement for a lease, where a rector agreed to let a farm, except thirty-seven acres (not saying which), that the rector had the right to select which thirty-seven acres should not be included in the lease (?•). " In every good exception," it is said in Sheppard's Touchstone, What things " these things must always concur : 1, the exception must be by apt -^^^ '^^^ Excep- words ' saving and excepting,' or the like (s) : 2, it must be a part tion. of the thing demised, and not of some other thing : 3, it must be onl}' part of the thing, and not all : 4, it must be such a thing as is severable from the premises demised, and not of an inseparable incident : 5, it must be of such a thing as he who doth accept may have, and which properly belongs to him : 6, it must be certainl}' or sufficiently described and set down " {t). If a man be possessed of a new house and an old house, and make a lease with au exception of the new house for the use of the lessor when he pleases to reside there, and at other times for the use of the lessee, the new house is well excepted ; and such exception is not avoided by the words " at all times to be used b}^ the lessee, when the lessor doth not dwell there : " for that sentence doth not enure as an exception out of an exception (which sets the matter at large), but only as a declaration of the lessor's intention in making the exception ; — the latter words, however, make the lessee tenant at will («)•* So, if a man lease his houses, excepting his new house, during the term, this exception is good : but if he except it duriiifi (p) Proud V. Bates, 34 L. J.. Ch. 406 ; 15. & P. 399; 7 R. R. 797; and ante, 11 Jur., N. S. 441. p. 165. {r/} Mikcdfe v. JVestaway, 17 C. B., (s) Co. Lit. 47 a. N. S. 658 ; 34 L. J., C. P. 114. (/■) Shep. Touch. (7th ed.), by Preston, (?•) Jenkins v. Green, 27 Beav. 437, p. 78 ; Dorrcll v. Collins, Cro. Eliz. 6. 28 L. J., Ch. 817, per Romilly, M.R. («) C'udlip v. Rundall, 3 8alk. 156. Sed qursre ; see Dann v. 82nirricr, 3 190 Chap. V.— The Lease. Ch.V.Sec.IO. life, it is void ; for the words " during life " qualif}- the exception, Exceptions and ^-^^ show his intent that the house shall not he excepted during- the Resvrvaiwns. _ _ i & ^ whole term, and so it is void. Exception of A clause in a lease purporting to reserve underwoods and under- ground produce, enures not as a reservation, but as an exception {x), A lease of lands excepted all timber, timber trees and other trees, &c., bushes and thorns, other than such bushes and thorns as should be necessary for the repairs of the fences ; the lessee covenanted to keep fences in repair, and the lessor covenanted to find and provide, if growing on the premises, rough timber, stakes and bushes : it was held, that the provision as to bushes and thorns necessary for repairs was not an exception out of an exception, but that all trees, bushes and thorns were excepted out of the demise, whether part of a fence or not, or whether necessary for repairs or noi{y). An exception of " all the wood " will be an exception of the soil whereon the wood grows {z). In like manner, if all the underwood and copse wood be excepted, the land will also be excepted, unless it clearly appear that it was merel}' the intention of the parties to except only the wood itself (a). But where "timber trees " are excepted, the soil in which they grow will not be covered by the exception (b), nor will it where a tenement described as " all timber trees, wood, underwood, &c.," are excepted (c). It Avill be usually not difficult to collect from the words used Avhether the exception was intended to extend to the soil or onl}" to the trees, the more generic ex- pressions jDointing to the soil, and the more specific to the trees. A jDarol demise of land, reserving to the landlord " all the hedges, trees, thorn bushes, fences, with lop and top," operates as a licence to enter the land for the purpose of cutting and carrying awa}' the trees id). Where a lessee for life made a lease for years, excepting the wood, underwood and trees growing upon the land, it was held a good exception, although he had no interest in them but as lessee ; because he remained always tenant, and was chargeable in waste — wherefore to prevent it he might make the exception : but if a lessee for years assign over his term with such an exception, it is a void Ajiple-trees, excejjtion (g). An exception of "all trees, woods, coppice-wood grounds, of what kind or growth soever " (/), or of " all timber trees and other trees, but not the annual fruit thereof," does not include ajjple-trees {g). (x) Doc d. Doiujlas v. Lock, 2 A. & E. (c) Lfiyh v. Heald, 1 B. & Ad. 622. 705. {d) Hewitt v. Jsham, 7 Exch. 77 ; {y) Jenney v. Brook, 6 Q. 1>. 323. Ziford's case, 11 Co. R. 51 b. (z) Ive V. iSams, Cro. Eliz. 521 ; JFhistlcr (e) Bacon v. Gyrlinrj, Cro. Jac. 296. V. Pasfow, Cro. Jac. 487. (/) London v. Southwell, Hob. 304 ; (a) W histlcr X . Paslow,sn\)\-A; Pincomb Wyndhamv. JVay, 4 Taunt. 316. V. Thomas, Cro. Jac. 524. {(j) Bullen v. Denning, 5 B. & C. 842. {b) iVldstlcr V. Paslow, Cro. Jac. 487. Sect. 10. — Of Exceptions and Eeseevations. 191 A clause purporting to reserve and except to the lessor the power of hunting, &c., over the demised premises, enures as a grant from the lessee to the lessor — a grant of a profit a prendre. It is not in law either a reservation or exception ill). A demise of lands, excepting and reserving all royalties, with a clause for the lessor to be allowed to prosecute actions against persons trespassing for the purpose of hunting, kc, does not amount to a grant by the lessee of a liberty for the lessor to enter for the purpose of pursuing, killing, and taking birds of warren (/). In a demise of a mansion-house and land, with the sole licence of sporting over all other lands of the lessor's, subject to the liberty for each tenant on his farm to kill rabbits thereon, the exception extends not only to farms existing at the time of the demise, but also to other lands, as plantations, subsequently let as farms (A). An exception of minerals includes stones got from quarries [1), and also evei-ything that is necessary for working the mines or quarries, including Avay -leave for carrying away the stone or minerals {m) ; but a reservation of " all mines and minerals, sand, quarries of stone, brick-earth, and gravel pits," in a farming lease does not prevent the lessee from selling, in accordance with a custom of the country, flints turned up by the lessee in the course of ploughing (;i). The reservation of a full power to work mines does not include the power of working so as to let down the surface (o) . The legal meaning of the expression " mines and minerals," is " every substance which can be got from underneath the surface of the earth for the purpose of profit, unless there be something in the context or in the nature of the transaction between the parties to give it a more limited meaning " {p). It seems that a building-lessee, notwithstanding a reservation of minerals so framed as to include brick-earth, ma}' dig foundations and convert the brick-earth for the purpose of building, but for the purpose of building only, and not for the purpose of carrying on the trade of brick-making {q) . Where there was a lease of certain lands, together with all houses, water-courses, &c., excepting a " water-course flowing or descending from " a certain spot, through a meadow, it was held in the particular Ch.Y.SecIO. Exceptions and Reservations. "Eeserva- tion " of Game. Exception of Minerals. Flints. Meaning of " Mines and Minerals." Hcxt V. Gill. Right of Building- lessee to take Brick-earth. Exception of AVater. {h) Doc d. Douglas v. Lock, 2 A. & E. 705, 743 ; irickhamv. Hnu-ker, 7 il. &. W. 103 ; Ewart v. Graham, 7 H. L. Cas. 333 ; Hall on Profits a Prendre, p. 324. And see post, Chap. XVI II., Sect. 6, " Game," &c. (i) Pannell v. Mill, 3 C. B. 625. {k) Newton V. Wilmott, 8 M. & W. 711. {I) Micklethicait v. Winter, 6 Ex. 644 ; 20 L. J., E.X. 313. (to) Cardiganw Armitagc, 2 B. k C. 197. in) Tucker t. Linger 8 Ai)p. Cas. 588 ; 52 L. J., Ch. 941 ; 49 L. T. 373 ; 32 W. K. 40, affirming decisions helow. 21 Cli. D. 18. (o) Jcfrycs v. Evans, 34 L. J., C. P. 261 ; 19 C. B., N. S. 246. (})) Next V. Gill, L. R., 7 Ch. 699 • 41 L. J., Ch. 761 ; 27 L. T. 291 ; 20 W. R. 957. (q) Jlobinson v. Milne, 53 L. J., Cli. 1070, per North, J. 192 Chap. V. — The Lease. Ch. V.Sec.IO. case to be an exception of the water itself, not of the channel through Exceptions and which it flowed (?•)• Where there was a demise of a mill and a '- stream of water, except so much of the water as should be sufficient for the supply of persons whom the lessor had already contracted with or thereafter should contract to supply, provided that such a quantity should be left as should be sufficient to suppl}^ the mill for twelve hours a day : it was held, that this was not an absolute under- taking to supply water to work the mill twelve hours a day, but that it was a demise of the mill as the water was flowing at the time of the demise (.s). Nature of Conditions. Conditions y)recedent or subsequent. Construction of Conditions. By what In- strument they may be made. Sect. 11. — Provisoes and Conditions. The terms "proviso " and " condition " are synonymous, and signify some quality annexed to a real estate, b}^ virtue of which it may be defeated, enlarged or created upon an uncertain event. Such qualities annexed to personal contracts and agreements are generally called conditions (i). A proviso or condition of re-entry may be inserted in an agreement for a lease not under seal(u). It will even form paj-t of a new implied tenancy from year to year upon the terms of a previous lease or agreement {x), and could be taken advantage of in case of entry and payment of rent upon the ordinary agreement for a lease. Conditions are either precedent or subsequent. Where a condition must be performed before the estate can commence, it is called "a condition precedent ; " but where the effect of the condition is either to enlarge or defeat an estate already created, it is then called "a condition subsequent " {y). Conditions as well as covenants are to be construed according to the real intentions of the parties {z). What is or is not a condition precedent depends merel}^ not on technical words, but upon the plain intention of the parties, to be deduced from the whole instrument (a). The court will not decide as to the meaning of an insensible condition or proviso for re-entry {h). A condition may be contained in the same deed or indorsed upon the deed ; or may be contained in another deed executed the same day ((') ; a condition indorsed upon a lease before the sealing and delivery is of equal force with a condition written within the deed(rf). (r) Doc A. Earlof Egremontw. Williams, 11 Q. B. 688. (s) BlatcJi/ord V. Mayor, civ. , of PUjmouth, 3 Ring. N. C. 691. {t) Bac. Abr. tit. Condifion. (u) Haync v. Cumviiiigs, 16 C. B., N. S. 421 ; 10 L. T. 341. {x) Thomas v. Packer, 1 H. & N. 669. (V) Cruise's Dig. XII. tit. 1, s. 6 : 1 Inst. 16 a, 237 a, n. 1. (r) Cole Ejec. 407. (a) Roberts v. Brett, 11 H. L. Cas. 337 ; 34 L. J., Ch. 241. {b) Doe d. Wyndham v. Carcw, 2 Q. B. 317 ; Doe d. Darke v. Boivditch, 8 Q. B. 973. (c) Com. Dig. tit. Condition (A. 9). {d) Griffin v. Stanhope, Cro. Jac. 456 ; Goodriglit d. JSicltolls v. Mark, 4 il. & S. 30. Sect. 11. — Provisoes and Conditions. 193 Conditions are most properly created by using the word "con- Ch.v.SecH. dition," or the words "on condition;" but the word commonly and I'l-orisovs and as effectually made use of, is, that of " provided " (e). The words — — '— "covenant" and " condition," when used in an agreement, do not Wordrthey necessaril}' mean a covenant under seal, or a condition in the strict ™^y ^^^ CTGcltCtl. legal sense of the word, but may, in order to effectuate the intention of the parties, be construed to mean " contract or stipulation " (/). If a proviso or condition have dependence upon another clause of the deed, or if the words of the lease be to compel the lessor to do some- thing, then it is not a condition, but a covenant only ; as if there be in the deed a covenant that the lessee should scour the ditches, and then these words follow, " provided that the lessor should carry away the earth." If the words run thus: "provided always, and the lessee, kc, doth covenant, &c., that neither he nor his heirs shall do such an act ; " this is both a condition and a covenant {g) ; so if the words are " provided always, and it is covenanted and agreed between the parties, that the lessee shall not alien," this is both a condition and a covenant ; for it is a condition by force of the proviso, and a covenant by force of the other words (/i). A covenant by the lessor for quiet enjoyment by the lessee, his executors, administrators and assigns, during the term, he or they paying the rent thereby reserved and performing the covenants on his and their part contained, is not a covenant subject to a condition precedent (/). Where in an agreement to demise lands for a term of 3'ears at a Condition or certain annual rent, in which there was no clause of re-entry, there was a stipulation " that in case the said lessor should want any part of the said land to build or otherwise, or cause to be built, then the lessee shall give up that part of the said land as should be requested by the lessor, by his making an abatement in proportion to the rent charged ; and also to pay for so much of the fence at a fair valuation, as he should have occasion from time to time to take away, by his giving or leaving six months' notice of what he intended to do ; " it was held, that this was merely a covenant, and not a condition {k). But where a proviso in a lease was, that in case the lessor at an}^ time shall be desirous of having any part of the land delivered up to him and shall sign three months' notice, the lessee covenants to give it up, and that the lessor sliall and may take peaceable and quiet possession, paying a fair compensation, and the rent being reduced at a certain rate per acre, it was held not to be a covenant merely {I). By an agreement {e.) Shep. Toueli. 122; Co. Lit. 146. see Lock v. Fiu-e, 19 C. B., N. S. 96; (/■) Jiaijnev. Cummians, 16 C. 15., X. S. L. K, 1 C. P. 441. 421 ; 10 L. T. 341. {k) Doc d. Wilson v. Phillips, 2 Bin^. [g) Shep. Touch. 122 ; Co. Lit. 146. 13 ; 9 Moo. 46 ; 2 L. J., 0. P. 103 ; 27 R. R. (//) Co. Lit. 103 b. 539 ; Due d. Wilson v. Abel, 2 M. & S. ((') Dawson v. Di/er, Burt., 5 B. & Adol. 541 ; 15 R. R. 343. 584, post, Chap. XVIL, Sect. 8 b; and {l)DoeiX.Gardner\.Kcnnard,Viq.Yi.2U. L.T. 13 Covenant. 194 Chap. V. — The Lease. Ch.V. Sec. 11. for a lease it was stipulated and conditioned, that A, should not assign, Provisoes and transfer or underlet any of the premises, otherwise than to his wife, Conditions. ^ •, -, i-ii -i 1111^1 ^ ^ T- child or children : it was held, that b_y such clause a condition was created for the breach of which the lessor might maintain an eject- ment {m). But mere words of agreement, such as " the tenant hereby agrees that he will not underlet the premises without the consent in writing of the landlord " {n), do not constitute such a condition (0). A condition that assignments should be left with the solicitor of the ground landlord has been held to be a covenant {p). "Eunning A condition which does not concern the thing demised, but is only Land.'' collateral, does not run with the land, nor with the reversion; and an assignee of the lessor cannot sue for any breach of it {q). Schedule of Fixtures, Furniture, &c. When Schedule not iinnexed, by mistake. How tlie Articles should be described in Schedule, Sect. 12. — Sclicdnles, Indorsements, d-c. When a house is let, together with fixtures, furniture or other articles therein, it is usual to make a schedule or inventoiy of them, with a covenant or promise from the lessee to re-deliver them at the end of the term. Such covenant or promise will give the landlord a better remedy (with clearer evidence) than he would otherwise have (r). The schedule or inventory is generally written at the foot or end of the lease, or it is indorsed thereon, or annexed thereto. Sometimes by oversight or mistake a schedule referred to in a deed as annexed thereto is not in fact annexed when the deed is executed. In such case the deed will operate and take effect, so far as may be, without the assistance of the schedule (s). But sometimes it is insensible and inoperative as to part without the aid of the schedule {t). The articles comprised in the schedule should be specified in such a manner as to prevent all doubt as to what was intended to be included (»). When they are numerous and comprise items of small value, the description of the property should be general enough to include all the items, after which may be added "the principal articles whereof are particularly enumerated and described in the schedule hereunder written, or hereunto annexed," or to that effect (.r). But (m) Doe d. Mennikerv. Watt, S B. & C. 308. (?t) Shaw V. Coffin, 14 C. B., N. S. 372. (o) Crawley v. Price, L. R., 10 Q. B. 302 ; 33 L. T. 203 ; 23 AV. R. 874. (^ ) Brooks V. Drysdale, 3 C. P. D. 52 ; 37 L. T. 467 ; .see ante, p. 129. {q) Stevens v. Cojip, L. R., 4 Ex. 20; and .see p. 176, ante. (?•) Davipier v. Pole, 4 Exch. 678. {s) Dyer v. Green, 1 Exch. 71 ; Dames V. Heath, 3 C. B. 938 ; Dampier v. Pole, 4 Exch. 678. (t) Weeks v. Maillardet, 14 East, 568 ; Scllinv. trice, L. R., 2 Ex. 189 ; 36 L. J., Ex. 93. (ii) Wood V. Rowcliffe, 6 Exch. 407 ; Cart V. Sagar, 3 H. & N. 370 ; Hutchinson V. Kay, 23 Beav. 413 ; cited 3 H. & N. 372 ; Baker v. Pichardson, 6 W. R. 663 ; Walsh V. Trevanion, 15 Q. B. 733 ; Barton V. Dawes, 10 C. B. 261. (-»■) Dyerv. Green, 1 Exch. 71. Sect. 12. — Schedules, Indorsements, etc. 195 sometimes the schedule may be referred to in such a manner as to Ch.V. Skc.12. exclude anythincr not therein specified 0/). Schedules, In- ^ ... . dorsements, ^c. When a fine or j^remium is paid, a receipt for the amount should be indorsed on the lease. It may be concisel}' expressed thus : — " Received of Mr. CD. the sum of pounds as within mentioned." Receipt for No receipt stamp is necessary in addition to the lease stamp. tion. Attestation, though legally unnecessary, unless the lease be under Attestation. a power {z), is not unusual, and where there is attestation, the usual attestation clause should not be omitted, esj^ecially when the lease is granted in pursuance of a power [z). Alterations in the deed should be speciall}^ mentioned in the attestation, or marked in the margin with the initials of the attesting witnesses. It sometimes happens that after a deed has been engrossed, but Alterations before it is executed, some additional covenant or stipulation is hefore the agreed on, which cannot be conveniently interlined. In such case Lease is 7 1 T 1 p" ^ ■ ^ e.xecuted. it may be indorsed on the lease, and referred to m the proper place thus : — " See back (A)." Memorandums indorsed upon leases, if made previousl}' to the execution of the lease, are considered in construction and effect as part of the instrument, although they add to or change the provisions of the deed {a). An indorsement upon a deed or other alteration therein is taken to have been made before the execution of the deed and to be jsarcel of it, in the absence of proof to the contrary (i). It is no objection to a lease that an alteration therein was made and signed, after the lease was signed, but before it was sealed and delivered (c) . A memorandum indorsed upon an instrument subsequently to its Where made execution, although it refers thereto, is to all intents a new instru- ^^^[ ^^'^^^' ment, and must be executed and stamped accordingly {d). Sect. 13. — Stamp. (a) Generally. The stamping of leases and agreements for leases, which was, Stamp ^\ct, before the 1st January, 1871, regulated by a number of complicated '^^'^' enactments, was from that date regulated by the consolidating Stamp Act, 1870 (33 L*!: 34 Vict. c. 97), as amended by the Inland Revenue (i/) Wood V. FMwcUffe, 6 Ex. 407 ; Baler Flint v. Brandon, 1 Bos. & P., X. R. 73 ; V. liichardson, 6 W. K. 663, contra. Doe d. Tatum v. Catamorr, 16 Q. B. 7-l.'i. {z) See Law of Pi-operty Amendment (c) Lyburn v. Warrinrjton, 1 Stark. K. Act, 1859, 22 & 23 Vict. c. 35, s. 12. 162. {a) Griffin v. Stanhope, Cro. Jac. 456 ; {d) Meed v. Deere, 7 B. & C. 261 ; 2 Goodright d. Nicholls v. Mark, 4 M. & S. C. & P. 624 ; 31 R. R. 190 ; Hill v. Patton, ZO ■,Frogley v. Earl Lovelace, 1 Johns. 8 East. 373 ; 9 R. R. 469 ; i^;-c«c/i.v. Pa«e?i, 333. 9 East, 351 ; 9 R. R. 571. {h) Brewster v. Kidgell, Carth. 438 13- 196 Chap. V. — The Lease. Ch.V, Sec.13. Stamps on Leases. Stamp Act, 1891. " Impressed' Stamp, Aflliesive Stamp. Amount of Stamp. Stamp on Counterpart. Stamp depends on actual Con- sideration. Separate Rents. Act, 1876, 39 & 40 Vict. c. 16, s. 11, and the Customs and Inland Revenue Act, 1888, 51 Vict. c. 8, s. 18, which latter enactment first made it an offence not to stamp, tJie penalty being imposed on the lessee. In 1891 the Stamp Acts were once more consolidated by the Stamp Act, 1891, 54 & 55 Vict. c. 39, the acts relating to the sale of stamps and the allowance for spoiled stamps being consoli- dated in the same ^-ear by the Stamp Duties Management Act, 1891, 54 & 55 Vict. c. 38. Extracts from the Stamp Act are set out at length hereafter {e). The stamp must, b}' s. 2 of the Stamp Act, 1891, be an " im- pressed " one as a general rule, but to the rule there are, by s. 78, exceptions for the lease of a house for not more than a 3'ear at the rate of not more than 101. a year (where the duty is one penny) and of a furnished house or apartments, at any rent exceeding 25Z. for less than a year (where the duty is 2s. Qd.) — in either of which cases the duty may be denoted by an adhesive stamp " which is to be cancelled by the person by whom the instrument is first executed." Careful reference must be made to the schedule tit. Lease (post, Appendix A.), to discover the amount of the Stamp Duty in each case ; but it may be mentioned here that it is ordinarily an ad valorem duty rising (1) with the amount of the rent and (2) with the length of the term if it exceeds 35 years. The stamp duty on the counterpart or instrument executed by the lessee and handed to the lessor is by the schedule to the act tit. ** Duplicate or Counterpart " the same duty as that chargeable on the lease if such duty does not amount to 5s., and 5s. in any other case ; and by s. 72, ?/the counterpart is executed by the lessor, it must be either stamped as the lease itself, or else with a denoting stamp, showing that the lease was properly stamped. Prior to the Stamp Act, 1870, the ad valorem stamp duty on a lease, or agreement for a lease, was to be regulated by the con- sideration appearing on the face of it, although it might not be that which was actually paid (/), and the ad valorem duty applied only to the considerations passing between the lessor and lessee (r/) ; but both these rules were abrogated by the terms of the schedule to the Act of 1870, tit. " Lease," which are rej^eated in the schedule to the Act of 1891. If two distinct rents be reserved, one for the house and land, and another for the furniture and fixtures, the stamp must be sufficient to cover both {h). Where the plaintiff demised a slate \)\i at S. and stone quarries at M. to the defendant to hold the one from Lady- {e) See post, Appendix A. (/) Ducky. Braddyll, WCM. 217 Price, 455. 13 {g) Boone v. Mitchell, 1 B. & C. 18. {h) Coster v. Cotvling, 7 Bing. 456. Sect. 13. — Stamps on Leases. 197 day, 1815, and the other from Michaehnas, 1817, for the several Ch.V. Sec.13. terms of fourteen years from the respective dates thereof, at the Stampn on . . . . Leases. yearly rent of 70/. for the slate pit and 180/. for the quarries : it was held, that one ad valorem stamp on the aggregate amount was sufficient, as the letting must be considered as one transaction, there being no evidence of an intent by the parties to defraud the revenue (i). Again, where a lease contained a demise of two separate farms, with two habendums differing from each other, a reservation of a separate rent in respect to each farm, and separate covenants, some applying to one farm and some to the other : it was held, that one ad valorem stamp for the amount of both rents was sufficient (A;). If a contract, which is signed by one party, have, previously to Xew Stipula- the signature of the other, inserted in it a new stipulation, it is sicmature entire, and requires but one stamp {I) ; and where an instrument contained in its general terms a written contract or demise to several different tenants for different estates at different rents, set against each signature, and one stamp only appeared on the paper ; the court held, that it was matter of circumstantial evidence to which contract such stamp should be applied {m). It was formerly the law that if a lease in writing contained a Description of contract for the purchase of goods, it could not be given in evidence to prove the sale of the goods, unless it had a lease stamp {n). The 97th section of the Act of 1870 provided for this case, by the enact- ment that where part of the consideration consists of goods, the value of the goods is to be deemed a consideration in respect of which the lease is chargeable with duty, and this enactment is repeated in s. 76 of the Act of 1891. A lease with option for lessee to purchase requires but one stamp Option to as a lease (o). The draft of an agreement for letting premises in which alterations When Stamp were made, and which was finally agreed to by the solicitors on both Evidence. ^^ sides, but was never signed, is not admissible as evidence of an express contract without a stamp {p). So a rough imperfect memo- randum of an agreement to become surety for rent must be stamped, and will exclude oral evidence of such agreement (5). Where a proposal was made in writing by A. to let a piece of land to B. on certain terms contained in a written agreement between B. and C, and A. afterwards agreed, by parol, that B. should have the land upon the terms proposed ; it was held, in an action for a breach of (i) Boasc V. Jackson, 3 13. & B. 185. {m) Doc d. Copley v. Day, 13 East, 241 {k) Blount V. Pcarmun, 1 Bing. N. C. [n) Stone v. Rogers, 2 M. & \V. 443. 408 ; 1 Scott, 55 ; and sue Parry v. Deare, (o) ]VorthinqtoRy. IVarrimituiK 5C. B. 5 A. & E. 551. t53t). (0 KniijUv. Crockford, 1 Esp. 189 ; 5 (j;) Chadwickv. Clarke, 1 C. B. 700. ^- K.- ' ^9- {q) Glover v. Halkett, 2 H. & N. 487. 198 Chap. V. — The Lease. Ch.V. Sec. 13. Stamps OH Leases. Objection to Stamp at Trial by the Opposite Party. Objection to Stamp at Trial by the Court. No new Trial on Stamp, objection. the agreement, that the original proposal was receivable in evidence without a stamp (r). A written paper, signed by an auctioneer, and delivered to a bidder, to whom lands were let by auction, containing the description of the lands, the term for which they were let to the bidder, and the rent payable, but not the lessor's name, was held necessary to be stamped (s) : but a similar paper not signed by the auctioneer, or an}' of the parties, was held not to be such a minute of the agreement as was required to be stamped, nor such a writing as would exclude parol evidence {t). Where there was a parol agreement to demise certain premises upon the terms and conditions contained in a lease of the same premises granted by the lessor to another person ; it was held, that in an action by the lessor against the lessee for rent and non-repairs, the lease could not be read in evidence unless it was stamped («). Though an oral lease for three 3'ears may be good, yet if it be reduced into writing it must be stamped, or it will not be receivable in evidence {x). Where a document is offered in evidence, and it is objected to by the opposite party on the ground that it is not sufficiently stamped, proof of that lies on the party who makes the objection, it being a fact. The objection is one of a preliminary nature to be decided by the judge (not by the jury), who will, immediately upon the objec- tion being taken, permit evidence to be interposed, and arguments adduced, to prove or disprove the sufficiency of the stamp. Under s. 16 of the Stamp Act, 1870, reproducing s. 28 of the Common Law Procedure Act, 1854, it was the dut}- of the officer of the court whose dut\' it was to read an}' instrument to call the attention of the court to any omission or insufficiency of the stamp thereon ; but by s. 14 of the Stamp Act, 1891 (54 k 55 Vict. c. 39), ** notice shall be taken by the judge, arbitrator or referee," as the case may be, of any such omission or insufficiency, whereupon, on payment to the officer of the court whose duty it is to read the instrument, of certain penalties, it may be received in evidence. By K. S. C. Ord. XXXIX., rule" 8 (taken from s. 15 of the Common Law Procedure Act, 1854), " a new trial shall not be granted by reason of tlie ruling of any judge that the stamp upon any document is sufficient, or that the document does not require a stamp." The decision of the judge, however, against the sufficiency or in favour of the requirement of a stamp may be reviewed {y). (r) Drant v. Broimi, 3 B. & C. 665. {s) PMmsbottom v, Mortley, 2 M. & S. 445 ; 15 R. R. 304. {t) Kamsbottom v. Tunhridge, 5 il. & S. 434; 15 R. R. 302. {u) Turner v. Potccr, 7 B. & C. 625 ; 1 Moo. & M. 131. (x) Prosscr v. Phillips, Bull. N. P. 269. (y) Siordet v. Kuczynski, 17 C. B. 251 ; 25 L. J., C. P. 2. Sect. 13. — Stamps on Leases. 199 (b) St((i)ipi){!i after Execution, or for purposes of Evidence. Ch.Y. Sec.13. B}'- the Stamp Act, 1891, s. 15 (re-enacting s. 15 of the Act of Leases. 1870), an unstamped or insufficient!}' stamped instrument may be stampino- stamped after execution, on payment of the unpaid duty and a ''^^ter /■- by reason that the failure of the negotiation was attributable to him rather than to the other party ; or that there was not a contract in writing sufficient to satisfy the Statute of Frauds (h). It is a question of fact by whom the solicitor was employed (c). Sometimes the charges of the lessor's solicitor may be taxed at the instance of the lessee, even after they have been paid (d). (b) Scale of Solicitor s Charges. The Solicitors' Remuneration Order, 1882, of which so much as applies to leases and agreements for leases, is set out in the Appendix to this work(e), prescribes a scale of remuneration to solicitors (/) for (see Eule 2) " business connected with " preparing, settling, and com- pleting lease and counterpart. By this scale, if the lease be at a rack rent, the charges are limited to 11. lO-s. on a rental not exceeding lOOZ. (but not less in any case than 51.), and on a rental exceeding lOOL to 11. 10s. on the first lOOL, and 11. 10s. more on each addi- tional 100/., and on a rental exceeding 500/. to 11. 10s. on the first lOOZ. and 2/. 10s. more on each additional 100/. up to 500/. and 1/. more on each additional 100/. The lessee's solicitor may charge one-half the above. A solicitor concerned for both parties "is to charge the lessor's solicitor's charges, and one-half of that (s/e) of the lessee's solicitor." The above scale " is not to include stamps, counsel's fees, or other disbursements reasonably and properly paid " (r/). It applies only to completed transactions (/i). The scale fee is not a percentage fee, and is only payable in respect of each full 100/. of rent, so that the proper fee in respect of a rental of 350/. is 12/. 10s. and not 13/. 15s., as no charge can be made in respect of the odd 50/. (/) . Negotiations are not provided for expressly either in the Order or the Scale. They are part of the " business connected with " the lease. Cif.V. Sec.16. Costs of Lease (Did Counter- part. Solicitors' Remuneration Order. Stamps and Disburse- ments. Fee, not Pcr- centaere fee. Xefrotiations^ (a) GrisscU v. Robinson, 3 Bing. N. C. 10, 16 ; Baker v. Meryiceathcr, 2 C. & K. 737. {b) 29 Car. 2, o. 3, s. 4 ; Forstcr v. lioivland, 30 L. J., Ex. 396. (c) Wilkinson v. Grant, 18 C. B. 319, 320 ; Smith v. Clcgg, 27 L. J., Ex. 300. {(l) In re Newman, L. R., 2 Ch. 707 ; 36 L. J., Cli. 843. (c) See post, Appendix A., sect. 8. As to agreements for leases, see also Chap. IV., Sect. 8, ante. (/) By s. 44 of the Stamp Act, 1891, every person, not being a barrister, solici- tor, or conveyancer, &c., wlio for reward "draws or prepares any instrument re- lating to real or perst)nal estate, shall incur a tine of 50?.," but ]>y par. 2 b of the same section it is provided that the term " instrument " in the section does not include " an agreement under hand only.' {(j) Rule 4. (k) Rule 2 b, (i) McGarcl, In re, [1897] 1 Ch. 400 ; 66 L. J., Ch. 185 ; 76 L. T. 70 ; 45 W. R. 321— C. A. 208 Chap. V. — The Lease. Ch.V.Sec.16. Costs of Lease and Counter- part. Solicitors' Charges — contd. Field, In re. Premium. Agreenieut for Lease. Emanuel and Simmons, In re. Lease or Agreement for Lease. Third Party. and the charges for them are included in the scale charge, which covers the whole transaction. This was held by the Court of Appeal in Field, In re (k), in which charges up to 16L 5s. 2d. for negotiations for a renewed lease of a house including one journey to see the house and another to procure the execution of the lease were disallowed by the master uj)on a bill in which the scale charge for preparing, &c., amounted to 13Z. 2s. 6d. But negotiations carried on by the solicitor as to the letting of a property with persons other than the person to whom the lease is ultimately granted are not covered by the scale charge. The solicitor is entitled to remuneration for such negotia- tions as business "which is not in fact completed" under Rule 2 (c) of the General Eemuneration Order (l). In the case of a lease both for rent and premium, the lessor's solicitor is not entitled to charge, in addition to the scale fee on the rent and the fee for deducing title in respect of the premium, a further fee for negotiation (ni). It has also been held by the Court of Appeal in Emanuel and Simmons, In re, that preparation of a prior agreement for a lease is also part of the " business," and that where the agreement provided that the lessor should do certain repairs before a certain day and then deliver possession, whereupon the lessor should grant and the lessee accept a lease in the form annexed, such agreement could not be separately charged for («) ; and this case was, after having been to some extent doubted in the House of Lords (o), unanimously approved by the House in Sarery v. Enfield Local Board {}>), where it was held that no fee in addition to the scale fee would be charged in respect of the negotiations which lead up to or for the preparation and com- pletion of the agreement which precedes the lease. An agreement for less than three years' tenancy is either a lease or an agreement for a lease (q). Where a solicitor's bill includes charges for services in respect of which a third part}' taxing it is not liable, a corresponding deduction {Jc) Field, In re, 29 Cli. D. 60S ; 54 L. J., Ch. 661 ; 52 L. T. 480 ; 33 \\. R. 553— C. A., all. Chitt}', J., ami approved ill Savcry v. Enfield Local Board,, [1893] A. C. 218 and infra. {I) Martin (A Lunatic), In re, 41 Ch. D. 381 ; 58 L. J., Ch. 478 ; 60 L. T. 555 ; 37 W. R. 497.— C. A., per Cotton and Lindlcy, L. JJ. {m) Horn and Francis, In re, [1896] 2 Ch. 797 ; 66 L. J., Ch. 15 ; 75 L. T. 370 ; 45 AV. R. 72, per Chitty, J. ill) Emanuel and Simmons, In re, 33 Ch. I). 40 ; 55 L. J., Ch. 710 ; 65 L. T. 79 ; 34 W. R. 613— C. A., att'. Pearson, J., and approved in Savery v. Enfield Local Board, infra. (o) In Parker v. Blenkorn, 14 App. Cas- 1 ; 58 L. J., Q. B. 209 ; 59 L. T. 906 ; 37 AV. R. 401, reversing decision of C. A., in which Court the opinion had been ex- pressed that there is no distinction to be found in the Reniuneration Order between the treatment of business connected with sales and the treatment of business con- nected with leases ; commented on in Solici- tors' Journal for Dec. 8th, 1888 ; ami see per North, J., u\ Faulkner, In re, 36 Ch. ]). 566. {j)) Saver y v. Enfield Local Board, [1893] A. C. 218 ; 62 L. J., Ch. 674 ; 68 L. T. 722 ; 42 W. R. 33 ; 1 R. 160. (q) Necjus, In re, [1895] 1 Ch. 73 ; 64 L. J., Ch. 79 ; 71 L. T. 716 ; 43 W. R. 68 ; 13 R. 85, per Chitty, J. Sect. 16. — Costs of Lease and Counterpart. 209 must be made as between tbe solicitor and such third party from the amount of the scale fee charueable on the whole transaction (r). B3' rule 6 of the Order a solicitor " maj', before undertaking any business, by writing under Jiis hand communicated to the client, elect that his remuneration shall be according to the present system " [i.e., the system in use before 1882] "as altered by Schedule II." of the Order. This election must be made as soon as the retainer is accepted, and a solicitor after doing any part of the business covered by the retainer may not turn round and say that the scale fee will not remunerate him (s) ; nor can he claim remuneration partly based on the one system and partly on the other (t). Where under a lease with power of renewal, assigns are liable to pa}^ the costs of a new lease, notice of election to the assigns is not necessary, they not being "clients" within the meaning of the Order (n). Where a building agreement was entered into and the form of the lease settled before the act, the lessor's solicitor may not charge the scale fee under the act, though the lease as settled does not contain the names of the parties, the parcels, the plan, or the terms of a restrictive covenant (x). By rule 5, where the lease is at a money payment or premium as well as at a rent, a further charge may be made in respect of the mone}' payment or premium. This rule applies, though no abstract of the lessor's title has been furnished to the lessee (]/), but does not apply where a lessor, leasing to a compan}-, takes a number of its shares b}' way of premium in addition to the rent (z). In the case of a lease both for rent and premium, the lessor's solicitor is not entitled to charge a registration fee (a), but he is entitled to the scale remu- neration, carrying a minimum fee of 5/. or SI. as the case may be, in respect of the premium, in addition to the scale remuneration in respect of the rent (h). A sale by way of sublease for the residue of a long term less three days is not a conveyance or lease within rule 5, so as to entitle the solicitor to the further charge (c). Ch.V.Seg.16. Costs of Lease and Counter- part. Election of Solicitor to charge other- wise than by scale. Premium. Sale by way of Sublease. Sect. 17. — Entry of Lessee. Before entrj' a lessee for years has at common law only an interessc Interesse^ termini (an interest of a term), and no possession. He cannot before (r) lb. (s) Allen, In re, 34 Ch. D. 433 ; 56 L. J., Ch. 487 ; 35 AV. E. 130— C. A., aff. Kay, J. {t) Hickley, In re, 54 L. J., Ch. 608; 52 L. T. 89 ; 33 W. R. 320. {u) lb., per Kav, J. {x) Wellhy v. Still, [1895] 1 Ch. 524; 64 L. J., Ch. 495 ; 72 L. T. 108 ; 13 K. 165, per Kekewich, J. (//) Robso7i, In re, 45 Ch. D. 71 ; 59 L.T. L. J.,Ch. 627;63L. T. 372 ; 38 W, R.556. (z) Hastics and Craivfurd, In re, 36 AV. R. 572, per North, J. {a) Horn and Francis, In re, ante, p. 208. {b) Ilellard and Bewcs, In rr, [1896] 2 Ch. 229; 65 L, J., Ch. 550; 74 L. T. 457 ; 44 W. R. 475, per North, J. (c) Webb, In re, Still v. Webb, [1897] 1 Ch. 144 ; 66 L. J., Ch. 163 ; 75 L. T. 478 ; 45 W. R. 170, per Stirling, J. 14 210 Chap. Y. — The Lease. Entry of Lessee. Ch. V. Sec.17. entry maintain an action of trespass id); or for breach of the cove- nant for quiet enjoyment (c) or for damages (/) ; but he may maintain ejectment (r/), or he may assign his interest, and his assignee may enter, or maintain ejectment (Z/). The interesse termhii is in the lessee, whether the lease be made to commence immediately or at a future day (0- If a lease be so framed as to be a bargain and sale under the Statute of Uses, the possession is immediately executed in the lessee, without actual entry {k). In Neale v. Mackenzie 100 acres were demised by parol for a year. sioii"V arT^' '^^® lessee accepted the lease, and, b,y virtue of the demise, entered of Demised upon the demised land. Before the demise, eight acres included in it had been demised to a third part}-, in whose possession they were, so that the lessee could not, and did not, enter upon them. It was held that the latter demise was void as to the eight acres, and that the rent was not apportionable, and could not be distrained for, the impediment to the lessee taking possession not being analogous to an eviction by an elder title {I). So where the tenant could not obtain possession of part of the premises demised, it was held that an action of covenant could not be maintained by the lessor against tlie lessee for the rent, as in such an action it could not be apportioned (m). Failure to Premises. "Void" iiieaBs at the Election of the Lessor. Davenport v. The Queen. Sect. 18. — Void or Voidable. When a lease contains a proviso or condition that on breach of any of the covenants, the lease "shall cease, determine, and be utterly void, to all intents and purposes whatsoever," such words will be con- strued to mean void at the election of the lessor (n). This has been held in a series of cases, affirmed by the Judicial Committee of the Privy Council in Davenport v. The Queen (o). The lessee will not be allowed to take advantage of his own wrongful act or omission, and to say that thereby the lease has become void (p) . The lessee must do some {d) Co. Lit. 296 b; Wheeler v. Montc- Jiore, 2 Q. B. 133, LOS ; Tur7ier v. Caineron's Steam Coalbrook Coal Co., 5 Ex. 932 ; Litchfield v. Readij, Id. 939 ; Lowe v. Ross, Id. 653 ; Harrison v. Bladtburn, 17 C. B., N. S. 678 : Cole Ejec. 287. (c) Wallis V. Hands, [1893] 2 Ch. 75 ; 62 L. J., Ch. 586 ; 41 W. E. 471 ; 5 R. 370, per Chitty, J. (/) lb. ((/) Cole Ejec. 72, 287, 459 ; Doe d. Parsley v. Day, 2 Q. 11 156 ; Ryan v. Clark, 14 Q. B. 73 ; 7 D. & L. 8. The contrary opinion expressed in Piatt on Leases, i. , 23, is, it is submitted, at variance with authority and principle. {h) 8 & 9 Vict. c. 106, s. 6. (i) Com. Dig. tit. Estate (G. 14^ ; Lock V. Furze, 19 C. B., N. S. 96, 103, 105 ; L. R., 1 C. P. 441 ; 34 L. J., C. P. 210 ; 35 Id. 141. {k) 2 Blac. Com. 270. (I) Neale v. Mackenzie, 1 M. & W. 747, reversing the considered judgment of the Court of Exchequer, 2 C. il. & R. 84. (m) Holgate v. Kay, 1 C. & K. 341. (n) Roberts v. Davey, 4 B. & Ad. 667 ; Pennington v. Cardale, 3 H. & N. 656 ; Hughes V. Palmer, 19 C. B., N. S. 393, 404, 407 ; Cole Ejec. 408. (o) Davenport v. The Queen, L. R., 3 App. Ca. at p. 128. ip) Rede v. Parr, 6 M. & S. 121 ; 18 R. R. 329 ; Doe d. Bryan v. Bancks, 4 B. & A. 401 ; Arnsby v. Woodward, 6 B. & C. 519 ; Roberts V. Davey, 4 B. &Ad. 664 ; Doc d. JVask v. Birch, 1 M. & W. 402 ; Reid v. Parsons, 2 Chit. R. 247. Sect. 18. — Void or Voidable. 211 act evidencing his intention to enter for the forfeiture and determine the lease (q), and the lease will be avoided from that time only ,- but previous arrears of rent may be sued for, although upon re-entr}'- the lessor is to have the premises again "as if the said indenture had never been made " (r). The subject of forfeiture is further considered hereafter (Chap. VIII., Sect. 5). Where a lease was granted to a man on his fraudulent representation that he intended to use the premises for carrying on a lawful trade, he intending at the time to use them, and afterwards using them, as a brothel, the representation being collateral to the agreement, was held not to avoid the lease (s). Where a lessee intending to assign knew that the intended assignee took the premises for the purpose of using them as a brothel (notwith- standing an express covenant therein contained not so to use them), the transaction was held void so as to prevent the lessee, who had paid for dilapidations to the lessor, from recovering the money so paid from the assignee under the indemnity clause of the assignment, and it was said that no rent or damages for breaches of covenant would have been recoverable upon an underlease executed before the assign- ment (0- In covenant for rent it was held a good defence that the premises were demised by the plaintiff to the defendant for the express purpose of being used for boiling oil and tar, contrary to the pro- visions of the Building Act (ii). A lease by deed may be avoided by matter ex post facto, as by erasure, interlineation or other alteration in any material part (x). The same rule extends to a lease not by deed, and it has been held that the addition by a stranger of a seal to a written instrument will avoid it (ij). A deed executed with blanks in material parts, whereby it is incapable of having any operation, and afterwards filled up and delivered by another person, in the absence of the part}' who has executed, and unauthorized by instrument under seal, is invalid (z). If a deed be altered by a stranger in a point not material, the deed is not avoided ; but it is otherwise if it be altered by a stranger (q) Roberts v. Davey, 4 B. & Ad. 667 ; Arnshy v. Woodward, 6 B. & C. 519 ; Fcnn d. MaUheios v. Smart, 12 East, 444, 451 ; Baylis v. Le Gros, 4 C. B., N. S. 537. (r) Hartshorne v. Watson, 4 Bing. N. C. 178 ; Load v. Green, 15 M. & W. 216, 223 ; Selby V. Broume, 7 Q. B. 620 ; Franklin v. Carter, 1 C. B. 750 ; 3 D. & L. 213 ; Johns V. Whiteley, 3 Wils. 127 ; Att.-Gen. V. Cox, 3 H. L. Cas. 240. (s) Fcret v. Hill, 15 C. B. 207. As to plea of fraud to an action for not granting a lease, see Calraleiro v. Paget, 4 K. & F. 537 ; and as to plea of illegality, see Coivan V. Milbourn, L. R., 2 Ex. 230; 36 L. J., Ex. 124, in which case it was held to be a defence that rooms agreed to be let were intended to be used for blas- phemous lectures. (0 Smith V. White, L. R., 1 Eq. 626 ; 35 L. .T., Ch. 454. See also Jennings v. Throgmurton, Ry. & Mood. 251, and post. Chap. VI., Sect. 3. {u) Gas Light Go. v. Turner, 7 Scott, 779 ; 8 Id. 609 ; 5 Bing. N. C. 666 ; 6 Id. 324. {x) Figot's case, 11 Co. R. 27 ; Bull, N. P. 267 ; 2 Blac. Com. 308 ; Davidson v. Cooper, 13 M. & W. 352 (Exch.). (y) Davidson v. Cooper, supra. (s) Hibblecchite v. M'Morine, 6 ]\I. & "W. 200 ; 8 Dowl. 802. But see Eaglcton v. Gutteridge, 11 M. & W. 465 ; 2 Dowl., N. S. 1053. 14—2 Ch.V. Sec.18. Whether Lease Void or Voidable. Fraud. Illegality. Use as brothel. Infringement of Statute. "What avoids a Lease. Erasuie, &c. 212 Chap. V. — The Lease. Ch.V.Sec.18. Whether Lease Void or Voidable. Altered Deed may be good as Evidence. Cancellation. in a point material ; for the witnesses cannot prove it to be the act of the party where there is any material difference : an immaterial alteration, however, does not change the deed, and consequentl}'' the witnesses may attest it without danger of perjury ; but if the deed be altered by the party himself, though in a point not material, 3'et it avoids it, for the law takes every man's act most strongly against himself. It is material to observe that an altered deed, althougli the cove- nants in it cannot be sued upon, may be good evidence to show the estate which passed by it, and which was not divested by these alterations (a). Where, by agreement between plaintiff and defendant, a house, No. 38, was let to the plaintiff, and after the agreement was executed and delivered to the plaintiff" the number was altered to 35, but it did not appear by whom. No. 35 being in fact the house let ; it was held that the agreement might be given in evidence in an action for an excessive distress, in Avhicli tlie demise was admitted, to show the terms of the holding {h). It has been held that the cancelling of a lease by the mutual con- sent of both parties does not destroy the term vested in the lessee, and that, therefore, notwithstanding such cancellation, the lessor may maintain an action of debt on the demise for the recovery of the rent (c), and the deed ma}- be given in evidence to show that the estate passed {d). Construction of Powers. Sect. 19. — Leases under Pincers {e). (a) Generally. The rules for the construction of pow'ers of leasing settled land have been variously laid down bv different judges, who have severally declared that they must be construed strictly (/), liberally (//), indifferently, without leaning to either side Qi) ; equitabl}' in favour of the donee ii), favourably for the donee (A') ; strictly for the tenant (a) Davidson v. Cooper, 11 M. & W. at p. 800 ; SUwart v. Aston, 8 Ir. Coin. L. R., N. S. 35 ; Doe d. Courtail v, Thomas, 9 B. & C. 288 ; West v. Steward, 14 M. & W. 47. [h) Butchins v. Scott, 2 M. & W. 809 ; Stcivart V. Aston, 8 Ir. Coin. L. R., N. S. 35. (c) Lord Ward v. Lumlry, 5 H. & N. 87, 656 ; 29 L. J., Ex. 322. {d) The Aqricxdti(7-al Cattle Lnsurance Co. V. Fitzgerald, 16 Q. B. 432 ; Stewart v. Aston, supra ; Iloe d. Earl of Berkeley v. Archh. of York, 6 East, 86 ; 8 R. R. 413. (f) See Sugden (Lord St. Leonards) on Powers, 711—835 (8tli ed.), a.d. 1861, and see also Farwell on Powers (2nd. ed.), A.D. 1893. (/) Fitzivilliam' s case, 6 Rep. 32 ; Tay- lor d. Atkyns v. Horde, 2 Smith, L. C. 495. {(j) Eight d. Bassett v. Thomas, 3 Burr. 1441 ; 1 W. Blac. 446 ; and cases cited arguendo in Vivian v. Jcgmi, L. R., 3 H. L. Cas. at p. 288. {h) Goodtitlc d. Clarges v. Funucan, 2 Doug. 573 : Doe A. Earl of Jersey v. Smith, 7 Price, 313 : 21 R. R. 577, 767. (i) Ward v. Hartimlc, 3 Bligh. 470, 845. {k) 0. Bridgm. by Bann. 90, 93. Sect. 19. — Leases under Powers. 213 for life, and liberally for the remainderman (/). It seems, however, Ch.V. Sec.19. to be ao-reed that powers must be construed according to the intention -t''««<^« m«^«' '^ -^ .... Forcers. of the parties {m) ; and so that the estate itself, which is subjected to the power, shall not be destro3'ed by the exercise of it(H). It is the duty of the court to support a power, if possible, and to give effect to its execution, if it is not exercised from improper motives or for improper objects (o). Many formal defects in leases under powers have been remedied Statutes as to by the Leases Act, 1849 (12 & 13 Vict. c. 26), as amended by the Leases Act, 1850 (13 & 14 Vict. c. 17) ( j)) ; and a substantial altera- tion of the law of leasing settled land has been effected by the Settled Land Act, 1882 (45 .1- 46 Vict. c. 38), which by conferring detailed powers of leasing upon a tenant for life independently of his trustees, has greatly diminished the importance of the cases decided before it came into operation. The Settled Land Act, 1882, the purport and Settled Land object of which is to grant to a tenant for life large powers for his ' own benefit {q), is by s. 2 retrospective, that is, it applies whether a settlement of the land were made before or after the commencement of the act (although of course a bad lease made before the commence- ment of the act does not become good by virtue of the act through having anticipated its provisions) ; and by ss. 50 and 51 a contract by a tenant for life not to exercise the powers of the act is void, and so is any prohibition or limitation in the settlement to a similar effect. Vliat the leasing powers of a tenant for life under the act are, we have already seen (r) : and it need only be added here, that by s. 54, a lessee dealing in good faith with the tenant for life is as against all remaindermen conclusively taken to have given the best rent that could reasonably be obtained ; that b}' s. 56 the powers of the act are cumulative, but prevail over the powers of a settlement in any case of conflict between them ; that by s. 57, a settlor may confer either on a tenant for life or trustees any powers additional to or larger than those conferred by the act ; and that by sect. 60, the powers under the act of an infant tenant for life are exercisable b}' the trustees or his guardian (s). Prior to the Settled Land Act, it was held in Vivian v. Jefion (t) Cases as to that a general power to a tenant for life to lease mines did not imply to°Settled^ a power to lease beyond the life ; but that powers to lease for lives or Laud Act. (I) Orhy V. Mohun, Gilb. Eq. Rep. 58 ; (o) Carver v. Richards, 29 L. J., Ch. Taylor d. Atkyns v. Horde, 1 Burr. 60, 357 ; 6 Jur., N. S. 410. 125 ; 2 Smith, L. C. (p) See post, sub-s. (g). (m) Goodtitle v. Funucan. 2 Doug. 573, {q) See per Pearson, J., in Duke ofXciv- 574 ; Hawkins v. Kemp, 3 East, 441 ; Doe castle's Estates, In re, infra. V. liendle, 3 M. & S. 99 ; 15 K. K. 426 ; (r) Ante, Chap. L, Sect. 4. 1 Piatt on Leases, 397, 398. (s) ScelJiikc of Ne'wcastlc's Estates, In re, {71) Powell on Powers, 407 ; Sug. Pow. 24 Ch. D. 129. 736 ; Winter v. Loveday, Garth. 428. {t) Vivian v. Jcyon, L. R., 3 H. L. 285. 214 Chap. Y. — The Lease. Cii.V. Sec.19. Leases under Towers. Lease for 999 years. " Keasonalile and I'lopLT " Leases. Lease lor less Teini than tliat authurizi'il. Ishfriroix/ V. Ohikiunr. years might be executed by a lease, either absolutely for certain lives, or a certain number of years ; or conditionally for a number of years determinable upon a life or lives («). 'Where an estate was settled on several tenants for life in succession, with remainders in tail, with power to every tenant for life to make leases of all or any part of the demesne lands for not more than twenty-one years, or for one, two, or three life or lives : it was held, first, that the power only authorized either a chattel lease not exceeding twentv-one years, or a freehold lease not exceeding three lives : and that a lease by a tenant for life for ninety-nine years dcterminalile on lives, as it might exceed twenty-one years, was void at law, and was not even good pro tanto for the twenty-one years (a). Where by a marriage settlement tlie hu.sband had the wife's estate for life, with a power to grant leases for twenty-one years, but no longer : and in breach of the power he granted a lease to A. for ninety-nine years, determinable upon lives ; and the wife survived him, and conveyed the fee to H. : and in the conveyance was recited the lease to A., who was recognised as being then tenant in possession of the estate, at the yearly rent reserved : on an action of ejectment brought l>y \\. against the assignee of the lease, it was held that the huse wns void, and llir recital only matter of description {ii). Under a power to lease for years or lives, with or \vith«»ut covenants for renewals, leases for 9i)l) years were held valid {z), and in Moatt/ii V. Lancaster {a), a power to grant such mining leases as should seem " reasonable and proper" was held to authorize a lease of mines for ninety-nine years at a peppercorn rent by way of mortgage to secure an advanee to the tenant for lite. .V man having a jtower may do ll■^s than such powir enables hiin to do. A lease for fourteen years is warrant**! by a power to lease for twenty-one years (b). A power to lease for any term or number of years certain, not exceeding twenty-one years, will waiiTant a lease for twenty-one years determinable at tlie option of the lessee at the end of the first seven or fourteen years (c). A power to lease for three lives nuiy be executed by a lease ft)r two lives (f/). A power to lease for any term not exceeding three lives and forty-one years will warrant a lease for three lives and fortv-one vears to commence from (u) Commons v. Marsftall, 6 V>vo. V. C. 168 ; Sug. Pow. 409, 737. (j-) Hoc d. Brnnc v. Prideaux, lo Ka^t, 158; 10 H. R. 258. (y) JDociX. Jiriggs v. JHiiU; 2 D. .l. 26. Sect. 19. — Leases under Powers. 215 tlie 1st of November preceding the day of the death of the survivor Cii.V. Sec.19. of the eestuis (lue vie (e). ^''««^« ««'^«' A tenant for life, having a power to grant buikling leases for sixty-one years, reserving the best improved ground rent, granted a Repaiihi"' lease for that term, whicli was not expressed to be a building lease, Leases. but which contained a covenant by the lessee to keep in repair the premises demised (old houses) or such other "house as should be built during the term : " it was held that this was not a building lease within the power, and that such a lease being granted by tenant for life, who had a bare naked power without any legal interest, was void, and not cai)able of being confirmed by acceptance of rent by the remainderman (/). So a power to grant long leases "for the purpose of new building or effectually rebuilding cduI repairing any messuage, I'^c, being or to be on the premises," was held to be not well executed by a lease containing a covenant effectually to repair, as it is not equivalent to a covenant effectually to rehmld and repair {g). But a power to grant leases for twenty-one years, or building or repairing leases for sixty-one years, is well executed by a lease for forty years containing the usual covenants to repair and keep in repair the demised premises, and so to leave them at the end of the term(/0. Upon a power to grant building leases, such a lease expressly exempting the lessee from rebuilding in case of fire, and by another clause enabling liim to surrender the lease \\\)on notice, could not be sustained (/). A power to demise lands or any part of them is not well executed Sporting by a demise of part with liberty of shooting over the whole ik). But ° the right to shoot and fish over the lands demised may be excepted and reserved to the lessor and his assigns (/). If a tenant for life with a power to grant leases in possession for Effect of twentN'-one years at the best rent, convey his life estates to trustees '^ to pay an annuit}' for his life, and the surplus to himself, the power is not tliereb}' extinguished, but he may still grant a lease agreeable to the terms thereof (m). If a man ha\ing a power annexed to his estate, charge his estate, and afterwards execute his power, the estate which rises by the execution of the power is subject to the charge during the estate : as if a tenant for life, with power to make leases, grant a rent-charge, and afterwards make a lease, the lessee takes subject to the rent-charge during the life of the lessor {n). (e) Re Crommellin Estate, 1 Ir. Com. (i) Sug. Pow. 743 ; Stiles v. Cov-per, L. R., N. S. ]82 ; Sug. I'ow. 746. 3 Atk. 692. (/) Jones d. Coivpei- v. Verney, Willes, {k) Dayrell v. Hoare, 12 A. & E. 3.')6. 169 ; Svig. Pow. 738. {I) Goodtitle v. Funucan, 2 Doug. 566. [fj) Doc d. Dymoke v. ]Yit]iers, 2 B. & {m) Ren d. Hall v. Bulkelcy, 1 Doug. Ad. 896. 292, 565. {h) Easton v. Pratt, 2 H. & C. 676 ; (?i) Sabbarton v. Subbarton, Cas. tump. 33 L. J., Ex. 233. Hardw. 415. 216 Chap. Y. — The Lease. In whom Powers may vest. Cii.V. Sec.19. If the power be to Ji man and his assigns to make leases, Sec, it Leases tinder jj^j^y ^g exercisecl toties quoties (o), and will rnn with the estate to the Powers. ' . . . assignee in deed or in law, and go to his executor, or to the assignee of the executor (jj) ; or to his heir, together with the estate {q). It is no objection to a lease under a power, that it is in trust for him who executes the power ; provided the legal tenant be bound during the term in all requisite covenants and conditions (r). But where by a marriage settlement a power was given to the wife, after the death of her husband, to grant leases for twentv-one years, reserving the best rent, i^c, it was held that a lease by the wife to a second husband was not a good execution of the power (s). Where the heir of a surviving trustee is the proper inirty to demise, a lease granted by the executors of such trustee is void, and not cured by the Leases Act, 1849, 12 & 13 Vict. c. 26 (0- (b) In possession or Iicrcrsion. Leases in The Settled Land Act, 1882 (s. 7, subsect. 6), provides that leases Possession or j^^ ^^ tenant for life under that act shall be made to take effect in Ke version. possession not later than twelve months after date. In all well-drawn powers of leasing, where it was intended that a lease in reversion may be granted, it was always expressly declared so : and if a reversionary lease was not to be granted, it was expressly declared that the lease shall be made to take etfect in possession, and not in reversion, or by way of future interest («). Upon a general power to make leases, without saying more, the law adjudged that the leases ought to be leases in possession, and not leases in reversion, or in futuro (.r). Under a power to make leases to one, two or three persons, the donee of the power cannot nnike a lease for the life of the first (unborn) son of J. S. (//). If there be a i)ower to nnike leases expressly stated to be in possession, which attaches upon an estate, part of which is in ])ossession and part in leversion at the creation of the power; the donee of the power may immediately make leases in jiossession of the estate in reversion, as well as of that in possession ; for in such case the word " possession " in the power refers to the lease, and not to the land {z) ; but it seems, that if a power enable any one to nnike «;)n what LriUtl they iittucli. (o) Sug. Pow. 718. (l>) lion- V. Whitfield, 1 Vi-ntr. 340; Freeman, 476. (7) E.e /Htrtc Cooper, lie Xorth London JR. Co., 34 L. J., Ch. 373. (r) Tni/lor d. Atkyn.i v. Horde, 1 Hurr. 124 ; 2 Smith, L. C. ; Jl'i/son v. Snccll, 1 AV. Hiao. 617 ; 4 Hurr. 1975; Jiemnw n.ihqo,Hl, 1 Johns. & H. 222 ; 30 L. J., Ch. 107. {s) Doe d. Harlridge v. Gill>crt, 5 Q. P.. 423. (/) Ex parte Cooj>er, lie Xortli Li. Sect, 19. — Leases under Powers (in Possession or Reversion). 217 leases in reversion as well as in possession and some parts of the land Ch.Y. Sec. 19. subject to the power be in possession, and other part of it in reversion, Leases under •* ^ . . . . rowers {m he cannot make a lease in possession and another lease m reversion Fossession or of the same land ; but liis power to make leases in reversion will be t^i-ersion). confined to such land as was not then in possession {a). AVhere there is a power to grant leases in possession only, the lease What is a in possession is not contrarv to the power, although the estate at the Reversion. time of granting the lease was held b}' tenants at will, if, at the time, they receive directions from the lessor to pay their rent to the lessee, to which they assent (/>). Where a tenancy from year to year has expired, but the outgoing tenant has a customary right over part till a future day, a lease in possession may be granted (e). Wliere one under a power to lease for twenty-one years in possession, but not in reversion, granted a lease to his only daughter for twenty-one years, *' to commence j'/'o/yi the day of the date : " it was adjudged a good lease, as the word "from" may mean either inclusive or exclusive, according to the context and subject-matter, and the court will construe it so as to eftectuate the deeds of parties, and not to destroy them (r v. Earl of Jcrscii, 7 Price, 281 ; 3 Bligh. 290 ; 2 B. & B. 474 ; 21 R. R. 767 : I>o<^ d. Earl of Eyrcmont v. Williams, 11 l^). li. 688. (n) Earl of Cardigan v. Montayuc, Sug. Pow. 918 (Sth ed.). (o) Dor d. Ellis V. Sandham, 1 T. R. 70.5 ; 1 R. R. 369 ; Yell only v. Gowcr, 11 Exch. 274. (p) Goodtitlc V. Funucan, 2 Doug. 575. Sect. 19. — Leases under Powers (Usual Covenants). 219 sewers, or other conveniences for the general improvement of the Ch.V. Sec.19. estate and the acconniiodation of the tenants thereof." A tenant for p^^^^t^S*^^ life having" appropriated certain land, and laid it out for a wa}' for the Covenants). general improvement of the estate, in exercise of the powei-s of the act, b}' deed granted rights of way over it to two several tenants : held, that tenants under other leases granted in pursuance of the act, but containing no grant by deed of a right to use the way, were not entitled by the provisions of the act to use it {q). (d) Proviso for Re-entry. A power to tenants for life to grant leases, provided that a right of Power to re-entry is reserved for non-payment of rent, is well executed by a I^^^J^^ ^ Proviso lease, providing a re-entry in case the rent remains in arrear fifteen tbr Re-entry. da^'s, and there is no sufficient distress upon the 2)reniises, the condi- tional proviso being the usual form in leases (r). Where a power of leasing required the insertion in the leases of a clause of re-entry for non-payment of rent, and a lease was made with a proviso for re-entry if the rent should be forty-two da3's in arrear, it was held such a lease was valid (s). But a lease with a proviso for re-entry, if the tenant should suffer the premises to be out of repair, and should not repair the same within six montJis next after notice, was held bad, the clause as to notice not being usual (t). (e) Lands usually let. Prior to the Settled Land Act, although the power of leasing usually What extended to all tbe hereditaments therein comprised, it was competent <' Lands to the settlor expressly to except the mansion-house or any other part usually let." (generally on the ground of not having usually let. The Settled Land Acts now allow of no such exception but that for the mansion-house, ikc, allowed b}' the 10th section of the Settled Land Act, 1890 (see ante, Chap. L, Sect. 4), not intended to be let. Where leases were granted under powers to lease lands " usually demised," it had to be shown by old leases or other satisfactory evidence that the lands have usually been demised; otherwise the}' could not be supported (it). Lands not demised for the space of twenty years before the execution of a power to demise at the rent then usually reserved and paid, could not be leased under such a power (a;). Where the power was to (q) White V. Leeson, 5 H. & IST. 53 ; 29 688 ; 12 Id. 355 ; 10 CI. k F. 419. L. J., Ex. 105. (t) Docd. Barlof Egrenwntv. Bitrrutigh, (r) Smith v. Doe d. Earl of Jersey, 6 Q. B. 229. 7 Price, 281 ; 3 Bligli, 290 ; 2 Brod. & li. (ic) Id. 735 ; Earl Cardigan v. Mon- 473 ; 5 M. & S. 467 ; 21 R. R. 767 ; Lvrd tague, Id. 918. Tankervillc v. Wim/ field, 7 Price, 343; 2 (x) Tristan d. Go^-ev. Eoltinglas,Yaugh.. Brod. & B. 498, n. ; 22 R. R. 39, n. 28 ; T. Jon. 27 ; Sug. Pow. 728, 729. (s) Rutland d. Doc v. Wythe, 5 JSl. & W. 220 Chap. Y. — The Lease. Ch.V. Skc.19. Leases under Foivers {Lauds usually let). extend to land usually demised, it was held, that land settled for 3'ears, determinable on lives, by a family settlement, came within that description {y) ; so lands which have been previously let two or three times {z), but not lands let only once for a short term {z) ; but that a covenant to stand seised might amount to a sufficient demise (a). 22 & 23 Vict. c. 35, s. 12. 12 & 13 Vict. t. 2(3. Invalid Leases good as Contracts for Leases. (f) Mode of Execution. By the Law of Property Amendment Act, 1859, 22 & 23 Vict. c. 35, s. 12, " a deed hereafter executed in the presence of and attested by two or more witnesses in the manner in which deeds are ordinarily executed and attested (/>), shall, as far as respects the execution and attestation thereof, be a valid execution of a power of appointment by deed or by any instrument in writing not testamentary [c), not- withstanding it shall have been expressl}' required that a deed or instrument in writing made in exercise of such power should be executed or attested with some additional or otlier form of execution or attestation or solemnity : provided always, that this provision shall not operate to defeat any direction in the instrument creating the power that the consent of any particular person shall be neces- sary to a valid execution {d), or that any act shall be performed (c), in order to give validity to any appointment, having no relation to the mode of executing and attesting the instrument ; and nothing herein contained shall prevent tlie donee of a power from executing it conformabl}' to the power by writing or otherwise than by an instrument executed and attested as an ordinary deed, and to any such execution of a power this j)rovi.sion shall not extend." It is to be observed tliat if the j^ower i)rescribes less tlian the statute, it is sufficient to ctinii)ly with the terms of the jiowt-r, but if the power prescribes more than the statute, it is sufficient to comply with the statute. (g) Defects in — huic cured. By the Leases Act, 1849, 12 & 13 Vict. c. 26 (/), a lease invalid by reason of any deviation from the terms of a power, is, after entry thereunder, considered in equity as a contract for a grant in respect of a valid lease under the power to the like etfect as such invalid lease save so far as any variation may be necessar}' in order to comply with the power ; and by sect. 4 of the same act, where a (y) lUght d. Basset v. Thomas, 1 W. Black. 446 ; 3 Burr. 1441, 1448. {z) 2 Roil. Abr. 261 ; Sug. Pow. 728, 730. (a) Riiilit d. Basset v. Thomas, 3 lUirr. 1441, 1447 ; 1 W. Hlac. 446. {b) In re Richctt, 1 Jolins. & H. 70 ; 29 L. J., Ch. 712. (c) They are provided for by the "Wills Act, 1837, 1 Vict. c. 26, s. 10. ((/) Frcshfield v. Br.ed, 9 M. & W. 104. (<) As to the execution of a counterpart by the le.ssee, see Fryer v. Coombs, 11 A. & E. 403. (/■) Amended bj' the Leases Act, 18.50, 13 &; 14 Vict. c. 17, infra. Sect. 19. — Leases under Powers (Defects in — how cured). 221 lease granted in the intended exercise of power of leasing" is invalid Ch. V.Sec.19. by reason that the person granting the same could not lawfully grant Lccms under such lease, but the estate of such person in the hereditaments com- {Cwinyof prised in such lease has continued, then the lease takes effect, and ejects)^. is as valid as if the same had been granted at the time when it could Invalid Leases ^ cured by have been lawfulh' granted. Continuance By the Leases Act, 1850, 13 .^- 14 Yict. c. 17, where upon or E,J;'r"' before acceptance of rent under an invalid lease, any receipt, kc, Confirmation confirming such lease is signed bv the person accepting such rent, or °^ mvahd *^ o . i X o ^ Leases by his agent, the acceptance, as against the person so accepting such Writing and rent, is deemed a confirmation of the lease. Acceptance ' 01 ivent. It is to be observed that an invalid lease under a power may be confirmed by the remainderman or reversioner by a mere memo- randum or note in writing coupled with acceptance of rent ; but not by acceptance of rent onlv, without any intention of thereby con- firming the lease. The mere acceptance of rent by a remainderman may create a new implied tenancy from year to year as between him and tlie lessee, which tenanc}' must be determined by notice to quit, or otherwise, before the tenant can be turned out of possession (r/). The above acts do not apply to leases granted b}' a mere stranger to the leasing power ; as where a lease is granted by the executors of a surviving trustee instead of by his heir (//), or b}' the heir instead of the executors (0- Sect. 20. — Leases in Reversion. All leases which are not to take effect in possession immediately, What are hwi from a future day, are considered as reversionary leases, wdthin Reversion. the meaning of powers to grant leases in possession and not in rever- sion (It). In legal acceptance a lease for years in reversion, and a future interest for years, are one and the same : a future lease and a lease in reversion are synonymous {I). But strictly speaking a reversionary lease is one granted for a term which is to commence from or after the expiration or other determination of a previous lease. It does not create any term or estate, but only an interesse termini, until entry thereunder after the time appointed for its com- mencement (»0- The granting of a reversionary lease does not dis- entitle the landlord to distrain for rent under a subsisting lease {n). {()) Doe d. Martin v. Watts, 7 T. R. 83 : 2 Salk. 53" ; 1 Ld. Raym. 267 ; Goodtitled. 4 R. R. 387 ; Doe d. Tucker v. Mo7-se, 1 B. Clargesv. Funucan, 2 Doug. 565. See also & Adol. 365; Doc A.. Pennington v. Taniere, as to "interesse termini, "p. 209, ante. 12 Q. B. 998. {I) Carth. 14, 15. {h) Ex parte Cooper, Re North London {m) Smith v. Day, 2 M. & W. 684. B. Co., 34 L. J., Ch. 373. (n) See Id. 684, 694, 699 ; Doe d. Fmw- ii) Robsony. Flight, 34 L. J., Ch. 226. lings v. Walker, 5 B. & C. Ill ; 4 L. J., [k) Winter v. Loveday, Comyn, 39; K.B. 93 ; 29 R. R. 184 ; 5Z«(/e d. Bramjield v. Smith, 6 East, 530; Berry v. Lindlcy, 3 M. & G. 498, 514 ; Doc d. Davenush v. MoffeUt, 15 Q. H. 257, 265 ; Tress v. tiarayc, 4 E. & B. 36. (c) Cox V. Bent. *5 Bing. 185 ; 7 L. J., C. P. 68]; 2 M. & P. 281 ; 3(i P. R. 566 ; Vincent v. Godson, 24 E. J., Cli. 122. {(l) Cox V. Bent, 5 Bing. 185 ; Vincent V. Godmn, 24 L. J., Ch. 122. (c) Finley v. Bristol and Exeter R. Co., 7 Exch. 415 ; Jones v. Shears, 4 A. & E. 832. Sect. 1. — Tenancy from Year to Year. 233 Avhicli such pa3'ment was made, for the purpose of repelling such Cir. VI.Sec.i. implication (/ ) . Tenancy from Where a tenant for a term of j-ears holds over after the expiration -; A^ llGl'G cl of his lease, he becomes a tenant on sufterance ; but when he pays. Tenant holds or expressly agrees to pay, any subsequent rent, at the previous o^er, and paj^s rate, a new tenancy from year to year is thereby created upon the Kent, same terms and conditions as those contained in the expired lease, ^yau v. so far as the same are applicable to and not inconsistent with a yearly tenancy (//). This, however, appears to be matter of evidence rather than of law {h). Where the tenancy was for one year, and the tenant, holding over at the end of it, left a letter demanding rent for a new quarter unanswered, and expressed a wish to dis- continue the present tenancy, Hawkins, J., who tried the case without a juiy, held that there was no new tenancy, but the Court of Appeal reversed this judgment (0. The landlord may show that he accepted the rent from time to time under a mistake, and upon the supposition that one of the lives for which the lease was granted continued in existence {k) ; or a new reversioner may show that he knew nothing of any special terms in the original lease, and there- fore ought not to be deemed to have assented to them, so as to render himself liable to such terms (/), or the tenant may show any facts leading to an opposite conclusion, as that the continued occupation was only provisional and in expectation of a new lease on new terms. In the absence, however, of an}- evidence one way or the other, it seems that upon a holding over and payment of rent, the jury would be directed to find a tenanc}^ on the terms of the expired lease, and that this would be so even if there had been an assignment of the reversion prior to the holding over(^;0' ^nj such new tenancy (when implied) will be deemed to have commenced at the same time of the year as the original term, and notice to quit should be given accordingly («). Even if the rent be increased, the tenancy will be subject to covenants or stipulations similar to those contained in the former lease, unless others are expressly agreed on (o). It will also be subject to the custom of the country, so far as such custom is not excluded by the terms of the expired lease (^ ). It may be (/) Doe d. Lord v. Crcujo, 6 C. B. 90 ; 34 L. J., Ex. 137 ; L. R., 1 Ex. 159 ; 4 Oakley Y. Monck, supra (c). H. & C. 251 ; 35 L. J., Ex. 84. ((/) Bishop V. Howard, 2 V>. & C. 100 ; .{in) See Wyattx. Cole, 36 L. T. 613. Hyatt V. Griffiths, 17 Q. B. 505 ; 1 («) Doe d. Castleton v. Samuel, 5 Esp. L. J., K. B. 243 ; 26 R. R. 291. 173 ; 8 R. R. 845 ; Doe d. Spicer v. Lea, (/() Mayor of Tlict/ord V. Tyler, 8 Q. B. 11 Enst, 312; Koe d. Jordan v. Ward, 95. 1 H. Blac. 96 ; 2 R. R. 728 ; Doe d. {{) Dougal v. McCarthy, [1893] 1 Q. B. Martin v. fFatts, 7 T. R. 83 : 4 R. R. 387 ; 736 ; 62 L. J., Q. B. 462 ; 68 L. T. 699 ; Doc d. Tucker v. Morse, 1 B. & Ad. 365. 41 W. R. 484 ; 4R. 402 ;57 J. P. 597— C. A. (<>) Diqby v. Atkinson, 4 Camp. 275 ; 16 (k) Doi' d. Lord v. Craqo, 6 C. B. 90. R. R. 792. (/) Oakley v. Monck, 3 H. & C. 706; {p) Hutton v., Warren, 1 JVL & W. 466. 234 Chap. VI. — Tenancies for less than Yeaes, etc. CiT.VI. Sec. 1. Tenancy from Yecer to Year. Acceptance of Rent by Re- maiuderman. By Attorn- ment to a prior Mort- gagee. Not by Agreement to pay an in- creased Rent. Underleases by Tenants from Year to Year. determined by notice at the end of the first or any subsequent year of the tenancy {q), or under an imijlied proviso for re-entry similar to that contained in the exjjired lease (;•). If a remainderman accept money, or anything else reserved as rent in a lease granted by the previous tenant for life, which became void on the death of such tenant for life, he does not thereby confirm and establish the lease for the residue of the term therein expressed to be granted (without a previous memorandum in writing pursuant to 13 Vict. c. 17, s. 1), but he creates a new implied tenanc}' from 3'ear to year as between him and the tenant on the old terms, so far as they are applicable to and not inconsistent with a yearly tenancy, and the tenant is entitled to the usual notice to quit {s) : unless, indeed, the rent reserved be so grossl}' inadequate, with reference ta the annual value of the property, that the jury ought to presume and find that no such new tenancy was intended to be created {t). So any special and unusual terms, of which the reversioner Avas ignorant when he accepted the rent, will not bind him {u), unless the Settled Land Act applies. Any such new tenancy will be deemed to have commenced from the same day of the year as the original term, and the notice to quit should be given accordingly (,r). If a mortgagee induce or compel a subsequent tenant of the mort- gagor to attorn to and pay him rent, that will not operate to confirm the lease for the whole term thereby granted, but will create between the mortgagee and the tenant a new tenancy from year to year (y) ; and such new tenancy will be subject to the terms and conditions of the lease, so far as the same are applicable to and not inconsistent with a yearly tenancy (^). If, whilst a tenant from year to 3'ear is in i:)Ossession of lands under an agreement reserving a certain rent, he agrees with his landlord to pay an increased or reduced rent, this will not have the effect of then creating a new tenancy {a). A demise by a tenant from year to year to another also to hold from 3'ear to 3'ear, is in legal operation a demise from year to year onl3'' during the continuance of the original demise to the inter- iq) Doc d. Clarke v. Smarldge, 7 Q. B. 957 ; I)oc d. Plumcr v. Mainbij, 10 Q. B. 473. {r) Thomas v. Packer, 1 H. & N. 669 ; Haync v. Cinnmings, 16 C". B., X. S. 421. (s) Doc d. Murthi v. Watts, 7 T. K. 85 ; 4 K. R. 387 ; Doc d. Tucker v. Morse, 1 B. & Adol. 365. (0 Doc d. Brunc v. Pridcaux, 10 Ea.st, 158; Venn d. Brunc v. Jiairlim, Id. 261 ; 10 R. K. 287 ; Doc d. Lord v. Crago, 6 C. B. 90. (u) Oakley V. Monck, 3 H. & C. 706 ; 34 L. J., Ex. 137 ; L. R., 1 Ex. 159 ; 4 H. & C. 251 ; 35 L. J., Ex. 84. As to applica- tion of Settled Land Act, see p. 6, ante. (.>;) Jioc d. Jordan v. U'ard, 1 H. Blae. 96 ; 2 R. R. 728 ; Doe d. Collins v, lydlcr, 7 T. R. 478; 4 R. R. 496. iy) Doc d. Hughes v. Bucknell, 8 C. & P. 567 ; Doc d. Prior v. Onylcy, 10 C. 15. 25 (3rd point). (z) role Ejec. 445. (rt) Doc d. Monck v. Geeckic, 5 Q. B. 841 ; 1 C. & K. 307 ; Clarke v. Moore, 1 Jon. & Lat. 723 ; Croiolaj v. ViUy, 7 Exch. 319 ; Burroircsv. Gradin, ] D. & L. 213. Sect. 1. — Tenancy from Year to Year. 235 mediate landlord (/>). A tenant from year to year, underletting Ch.YI. Sec. i. from year to year, has a reversion which entitles him to distrain (c). Tvnancufrom 1 ear to 1 ear. If a tenant from year to year make a lease for twenty-one years, such term will cease whenever the tenancy from year to year is legally determined {d). By s. 14 of the Real Property Limitation Act, 18.33, 3 & 4 Will. 4, Acknowledg- c. 27, "When any acknowledgment of the person entitled to any Laudloicrs land or rent shall have been given to him or his agent in writing i'^^^l^^"^ ... AViituig, signed by the person in possession or in receipt of the profits of such efifect ot. land, or in receipt of such rent, then such possession or receipt of or Real Prop. by the person b}' whom svich acknowledgment shall have been given 1833^ sec' 14. shall be deemed, according to the meaning of this act, to have been the possession or receipt of or by the person to whom or to whose agent such acknowledgment shall have been given at the time of giving the same, and the right of such last-mentioned person, or any person claiming through him to make an entry or distress or bring an action to recover such land or rent shall be deemed to have accrued at and not before the time at which such acknowledgment, or the last of such acknowledgments, if more than one, was given." Whether a writing is an acknowledgment within tliis section is a question of law, not of fact {e). The acknowledgment must be express (/), and may arise on a pleading (f/), but an answer to an application for arrears of rent has been held sufficient (/O. An acknowledgment b}' an agent is insufficient as not being made by the party in possession (i), and so it seems is an inquiry on what terms the premises would be let, even though made by the party himself (A) . A tenant from year to year, unless he hold under a written contract Acquisition of tenancy, acquires a fee simple by non-payment of rent for twelve where no years. Such is the effect of the Eeal Property Limitation Act, 1833, Lease in *' 1. J ' writing, by 8 & 4 Will. 4, c. 27, s. 8, and the Pteal Property Limitation Act, statute of 1874, 37 & 38 Vict. c. 57, s. 2. By s. 2 of the act of 1874, no person may make an entry or bring an action to recover land but within twelve years next after the right to make the entry or to bring the action shall have first accrued to him or to his predecessor in title ; and by s. 8 of the act of 1833, " When any person shall be in possession or in receipt of the profits of any land or in receipt of any rent, as tenant from year to year, or other period, without any lease in Avriting, the right of the person entitled subject thereto, or of the person through whom he claims, to make an entry or distress, or to bring an action to recover such land or rent, shall be deemed to have first accrued at (h) Pikcv. Eyre, 9 B. & C. 909. (/) lb. (c) Curtis V. Whcclcr, ^loo. & M, 493. ((/) Gooclc v. Job, 28 L. J., Q. B. 1. ^ct) Mackay\. Mackreth, iDoiig. 213. {h) Fursdcn v. Ckcjfj, 10 M. k, W. 572, (e) Doe A. Ctorzon v. Edwards, 6M. & W. \i) Ley v. Peter, 27 L. J., Ex, 239. 265. {k) See lb., per Brannvell, B, Limitations. 236 Chap. VI. — Tenancies for less than Years, etc. Ch.VI. Sec.i. the determination of the first of such years or other periods, or at the Tenancy from j^st time when any rent payable in respect of such tenancy shall have Year to Year. , •-,/., ^ ^^^ i ,, been received, which shall last happen. This section applies to tenancies created before the Real Property Limitation Act, 1833, 3 & 4 AVill. 4, c. 27, as well as to those created after that statute (/). The "lease in writing "must be effectual to pass an interest {m). A payment on account of something else than rent is not a payment of rent within the section (»)• A statement by the tenant admitting payment of rent, as " I have no propert}' in W. but what I hold of Lord S., for which I pay lOOZ. a year," is evidence of payment of rent at the time of the statement (o). The rendering of such sen'ices as sweeping a church and tolling the bell is equivalent to payment of rent {p). B}' sect. 34 of the Act of 1833 the title of the prior rightful owner is extinguished at the end of the period of limitation, and not transferred to the person in possession iij). Sect. 2. — Tenancy for less titan a Year. — Lodf/ings. Tenancy for In leases of houses and ai^artments for an indefinite period less Year ^" ^ than a year, the liiring will be construed to be quarterly, monthly, or weekly, according to the circumstances of each case and the custom of the place or country. Of these circumstances the principal appears to be the payment of rent : therefore, where a tenancy was created of wharfs, warehouses, Sec, at a certain rent per quai'ter, the tenancy to commence on the 14th June, the tenant paying a quarter's rent on that day and giving security for the payment of a quarter's rent in advance during his tenancy, it was held that he became tenant from quarter to quarter, and not from year to year(r). So where the tenant is *' always to be subject to quit at three months' notice" he will be deemed a quarterly tenant (.5). "Where premises are let, not for any definite period, but the tenant is to give up possession at any time on one month's notice, that creates a tenanc}- from month to month {t). So a demise of houses or of lodgings at a monthl}' or weeklj' rent affords a presumption of a monthly or weekly tenancy (»)• Jlonth means Month in any legal document means lunar month, unless calendar Lunar !Month. {I) Doc d. Jukes V. Sumner, 14 M. & W. (q) See Tichbomcv. Weir, 67 L. T. 735 ; 39. 4 R. 26 — C. A. im) Doe d. Landsch v. Goim; 17 Q. B. (/) JVilkinson v. Hall, 3 Bing. N. C. 589 ; 21 L. J., Q. B. 57. 508. («) Alt. -Gen. v. Stephens, 6 De G. :M. & G. (s) Kemp v. Derrett, 3 Camp. 510 ; 14 111 ; 25 L. J., Ch. 888. K. K. 820. (o) Doc d. Spciicer {Earl) v. Beckett, 4 {t) Doe d. Landsell v.Goicer,l7 Q. B.589. Q. B. 601. (n) Huffcll v. Armitstcad, 7 C. k V. 56. (p) Doed. Edncy v. Bcnham, 7 Q. B. And sec as to what notice to quit is 976. required, post, Chap. VIII., Sect. 7. Sect. 2. — Tenancy for less than a Year — Lodgings. 237 month be specified (,r), or there be admissible evidence to show that a calendar month was intended (?/). Where a person hired a furnished house for three lunar months, and a receij)t Avas given for the rent for that period, but he continued in possession afterwards, it was held that a jury were warranted in finding that the subsequent occupation was on a weekly hiring (^). By agreement on the 19th of April, certain premises were let at a yearly rent of 42^., pa^yable quarterly; the first payment, 71. 13s. 6d., to be made on the 24th of June next, being the proportion of rent due up to that time. The lessee was to enjoy the said rent until one of the parties should give to the other six months' notice to quit, and at the expiration of "any" such notice to leave the premises in as good condition, &c. This was held to be a half-yearly tenancy, commencing from the 24th of June : and that a notice to quit given at Midsummer and expiring at Christmas was valid (a). Where the defendant hired of the plaintiff apartments in his dwelling-house at a fixed rent, payable half-j-early, and entered into possession at Michaelmas, 1822 : and at Lady-da}', 1823, paid one half-year's rent, and at the Midsummer following gave up posses- sion without having given notice to quit; but at Michaelmas in the same year he paid another half-year's rent, though at Lady-da}', 1824, he refused to pay a third half-year's rent ; in an action for use and occupation for that half-year's rent, it was held that a tenancy from year to year could not be inferred from these facts, and therefore that the action was not maintainable (/>) . A general letting at a yearly rent, though payable half-yearly or quarterly, or an acceptance of yearly rent or rent measured by an aliquot part of a year, is evidence of a taking from year to year (c). Where premises are let, at a yearly rent payable weekly, with power to determine the tenancy at three months' notice from any quarter-day, that creates a yearly tenancy, determinable as agreed (d). Where a house is let ready furnished the rent is deemed to issue out of the realty, and not partly out of the furniture (e) . Lodgings may be let in the same manner as lands and tenements. A lodger is a tenant if the premises are let to him (/). Prior to the Lodgers' Goods Protection Act, 1871, 34 & 35 Vict. c. 79, care had to be taken by the lodger to ascertain that the rent of the house had been paid up, as if not, the goods of the lodger Ch.VI.Sec. 2. Tcnaneij for less than a Year. — Lodgings. Furiiisheil House. Lodgings. Protection of Lodger's Goods from Distress. (,r) Sim'ijson v. Margttson, 11 Q. B. 23. {y) lb. , and see as to agreement for hire of furniture, Uutton v. Brown, 45 L. T. 343. {z) Towne v. Camphdl, 3 C. B. 921. (rt) Doe d. King v. Graton, 18 Q. B. 496 ; 21 L. J., Q. B. 276. {h) Wilson V. Abbott, 3 B. & C. 88. (c) Richardson v. Langridgc, 4 Taunt. 128 ; 13 R. R. 570 ; Boed, Etill v. Wood, 14 M. &W. 682. {d) Ilex V. Hcrstmonceaux, 7 B. & C. 551. (e) Ncvmian v. Anderton, 2 Bos. & P. NewR. 224. (/) Cook V. number, 11 C. B., K S. 33 ; 31 L. J., C. P. 73. As to executory agreement to let lodgings, see ante, p. 92. 238 Chap. VI. — Tenancies for less than Years, etc. Ch. VI. Sec. 2. Tenancy for less than a Year. — Lodgings. Use of Knocker, Door liell, &o. Loilgings to Prostitutes. Lan.-eny of Lodger's (ioocls. would be liable to a distress for rent due from his own landlord. But that act, which is full}' set out hereafter {fj), provides a simple process for freeing the lodger's goods from a distress of this kind. Previously to taking the premises, however, it may sometimes be prudent to make inquiries of the tax-gatherer and collector of the parochial rates, as if distresses be levied for them, it may cause considerable incon- venience and annoyance to the lodger, although his goods are not liable to such distresses. A lodger has a right to the use of the door bell, the knocker, the sk^'light of the staircase, and the water-closet, unless it be otherwise stipulated at the time of taking the lodgings ; therefore if the land- lord deprive the lodger of the use of either, an action lies (//). If a person let lodgings to an immodest woman to enable her to consort with the other sex, or if not knowing her habits at the time of letting, but becoming acquainted with her habits afterwards, he permit her to continue his tenant, he cannot recover in an action for the lodgings so ht ; but if the woman merely lodge in the house, and receive her visitors elsewhere, the rent may be recoverable (/). A lodging-house keeper is not responsible to his lodger if property of the latter be stolen from his apartments, either by another lodger or by a third person : the principle is, that the lodger must himself take care of his own goods ; there is a distinction in this respect between an innkeeper and a lodging-house keeper (A). What con- stitutes a Tenancy at Will. Sect. 3. — Tenancy at Will. A tenancy at will is wliere lands or tenements are let by one man to another, to hold at the will of the lessor : in this case the lessee is called tenant at will, because he has no certain or sure estate : for the lessor ma}' put him out at any time he 2)leases {I). Either party ma}' at any time determine a strict tenancy at "Will, although expressed to be held at the will of the lessor only (w), and the landlord may determine it by a demand of possession or otherwise without a previous formal notice (»). The granting of a lease to a third person by a lessor of a tenant at will, though it determines the tenancy at will as against the lessor, does not give him such a right of entry as is contemplated by the Real Property Limitation Act, 1833, 3 & 4 (<7) Chap. XL. Sect. 9 (g). (h) Undcricuod v. Burrows, 7 C. & V. 26. (j) Appletm V. Campbell. 2 C. & V. .34" ; Jenniiifis v. Throgmorton, Ry. & SIoo. 251 ; Girardi/ v. Ricfiardso)i, 1 Esp. 13. (i) Holder V. Soulbg, 8 C. B., N. S. 254 ; 29 L. J., C. P. 246 ; Danscg v. lUchardsoji, 3 E. k B. 144 ; Clench v. Dr. Arenberg, 1 C. & E. 42. (/) Lit. s. 68 ; Cole Ejcc. 448. (w) Co. Lit. 55 a; Smith L. & T. 17 (2 mi ed.). (h) Doe V. Price, 9 Bing. 356, and p. 240, post. Sect. 3. — Tenancy at Will. 239 "Will. 4, c. 27, s. 2 (o). Where there is a tenancy at will, at a fixed Cii.VI. Sec.3. rent, such rent may be distrained fov{p). Where there is no such Tencmaj at fixed rent an action for use and occupation may be maintained {q). Where a person lets land to another without limiting any certain How created. or determinate estate, a tenanc}' at will is thereby created (r) . A person who lives in a house rent free, by the sufferance of the owner, "Rent free." is a tenant at will (.s). A mere permission to occupy land constitutes a tenancy at will only (f). An interest of freehold or quasi freehold character cannot be created orally or b}' a mere written agreement (not under seal) : a person, therefore, holding under such an agree- ment is a tenant at will, and (after determination of such tenancy) removable by ejectment, without prejudice to his equitable rights {ii). Courts of law have for a verj' long time leaned as much as possible against construing demises, where no certain term is mentioned, to be tenancies at will, but have rather held them to be tenancies from year to year so long as both parties please, especially where an annual rent is reserved {x). If an agreement be made to let premises so long as both jjarties please, and reserving a compensation, " So long as accruing de die in diem, and not referable to a year, or any aliquot pi'ease^'^'^ '^^ part of a vear, it does not create a holding from year to j'ear, Ridmrdson v. but a tenancy at will strictly so called ; and though the tenant has -^««S"'^^<^- expended money on the improvement of the premises, that does not give him a right to hold them until he be indemnified (?/). If one devise a tenement to another, excej^ting the new house for his habitation when he pleases to stay there, and at other times for the use of the lessee ; the lessee has the new house as tenant at will {z). The words " I give you a close to enjoy as long as I please, and to take again when I please, and you shall pa}' nothing for it," create a tenancy at will {a). So a party having become tenant to two others at their icill and pleasure, at the rate of 2oZ. As. per annum, "Will and payable quarterly, and having remained in possession under this P^^^^^"'^- agreement for two years, and paid a year's rent, after which the lessors distrained for a quarter's rent, was held to be tenant at will and not from j-ear to j'ear {h). If a tenant whose lease has expired be permitted to continue in possession pending a treaty for a further (o) Hocjan v. Hand, 2 AV. R. 673 ; 4 {u) Dosse v. East I. Co., 8 W. R. 245, L. T. 465, P. C. P. C. {p) Anderson v. Midland R. Co., 3 {.v) Timmins v.Roivlinson, Z^ww.'iQO^; E. & E. 614 ; 30 L. J., Q. B. 94 ; Doc d. 1 W. Blac. 533 ; Co. Lit. 55 ; Doe d. Hull Darks v. Thomas, 6 Excli. 858. v. Wood, 14 M. & W. 682 ; Anderson v. (fi) Chap. XIV. , post. Midland R. Co., 30 L. J., Q. B. 94. (r) Com. Dig. tit. Estates (H. 1) ; {y) Richardson v. Langridge, 4 Taunt. Richardson v. Langridge, 4 Taunt. 128 ; 128 ; 13 R. R. 570. 13 R. R. 570. (-) Cudlip v. FMndall, 3 Salk. 156. (.s) Rex V. Collctt, Rus. & Ry. C. C. (a) Rex v. Fillongley, Cald. 569. 498 ; Rex v. JoUincf, Id. 525 ; Doe d. {b) Doe d. Badow v. Cox, 11 Q. B. G-rovcs V. Groves, 10 Q. B. 486. 122. (0 Doe d. Hull V. Wood, 14 M. & W. 682. 240 Chap. YI. — Tenancies foe less than Years, etc. Ch.YI. Sec. 3. Tenanc)/ at Wili. Entry under void Lease. Doc V. r.cll. Tenancy of Dissenting Minister. Other Tenancies at Will. Determina- tion of Tcnanc-y at AVill. lease, he is not a tenant from 3'ear to year, but a tenant strictly at will (c) : it is the same if he be admitted tenant pending a treaty for purchase, which is afterwards broken off (. & C. 718 ; Doc d. Nicholl v. iPKacg, Id. 721 ; Perry v. Shijncay, 1 GifF. 1. (A) Per cur. in Doc v. M'Kaerf, supra. As to egress and regress after detennina- tion, see Lit. s. 69, and p. 242 {k), post. (i) Doe d. Heming v. Brett, Hurl. & Walni. 3. (^•) Turner v. Doc d. Bennett (in error), 9 M. & W. 643. (I) Doc d. Jacobs v. Phillips, 10 Q. B. 130. {in) See Doe v. Jones, 10 li. & C. 718 ; Doc V. Price, 9 Bing. 356 ; Doe v. M'Kacfj, supra. The law seems to be that there must be a demand before writ, and that tlie writ itself is not a demand, but that the writ may immediately follow the^ demand. (n) Doc d. Bastoio v. Cox, 11 Q. 15. 122. (o) Doe d. Stanway v. Rock, 1 Car. k AL 549 ; 4 M. & G, 30 ; Cockcrcll v. Owercll, Holt. 417 ; Janies v. Dean, 11 Ves. 391 ; 8 R. R. 178 ; Att.-Gcn. v. Ld. Foley, 2 Dick. 363. (^j) Co. Lit. 55 b, 57 b, 245 b ; cited Sect. 3. — Tenancy at Will. 241 notice thereof (q) — waste committed by the tenant (r) — his demising or leasing or assigning the premises over (.s) — or, in short, doing any act which is inconsistent with an estate at will {t). An entry b.y the landlord on the land without the tenant's consent, and cutting and carrying away stone therefrom, amounts to a determination of the will (»). It is requisite that the landlord should give the tenant notice that he determines the tenanc}', if the act relied on be done off the premises (x). Where the act is done on the land, it is presumed that the tenant is there and knows of it (?/). A demand of possession made on the premises from the wife of a sublessee at will is sufficient {2). So the lessor by making a lease for years to commence presently determines the tenancy at will, although there be a stipulation that the new lessee shall not enter until after the day for payment of the rent by the tenant at will («). The will is also determined by an agreement by the lessor for the sale of the freehold to the tenant at will (h) . The words " Unless you pay what you owe me, I shall take imme- diate measures to recover possession of the property," addressed to the tenant bj' the party entitled to the fee, have been held a sufficient deter- mination of the will, and equivalent to a demand of possession, so as to maintain ejectment (c). A., having been in possession of a house and lands adjoining as tenant at will to the lord of a manor, was told by a subsequent lord that he must leave. On his refusal to do so, a writ of ejectment was served upon him ; it was then verbally arranged that A. should give up part of the land, and retain the house and remaining land during the life of himself and wife. It was hel.d that these acts amounted to a determination of the tenanc}^ at will, and as a new tenanc}' at will was thereby created as to part, the Eeal Property Limitation Act, 1833, 3 & 4 Will. 4, c. 27, ss. 7, 10, began to run from that time, and not from the date of the original tenancy (d). Ch.VI. SEC..3. Teiiaiici/ at Wili. Determina- tion of Tenancy at Will — contd. Constructive ileniand of possession. 9 M. & AV. 646 ; Doe d. Moore v. Lawdcr, 1 Stark. R. 308 : Smith L. & T. 17 (2nd ed.) (5) Co. Lev, Lit. 55 b ; Dinsdale v. Isles, 2 , 1 Vent. 24 7 ; Ball v. Cullimore, 2 C, M. & R. 120 ; Doc d. Goody v. Carter, •9 Q. B. 863 ; Doc d. Darics v. Thomas. 6 Exch. 854, 857. (r) Lit. s. 71 ; Co. Lit. 55 b ; Smith, L. & T. 20, 268 (2nded.). (s) Cole Ejec. 449, 453 ; Puihorn v. ■Souster, 8 Exch. 763 ; Mellimj v. Leake, 16 C. B. 652. (0 Cruise's Dig. tit. ix. s. 17 ; Co. Lit. 57 a, 55 b, n. 15 ; Hinchman v. Isles, 1 Ventr. 247 ; Countess of Slirewshury's ease, .5 Rep. 13 b ; Birch v. Wright, 1 T. R. 382 ; 1 R. R. 223 ; Follen v. Brewer, 7 €. B., N. S. 371 ; Wallis v. -Delmar, L.T. 29 L. J., Ex. 276; Smith L. & T. 19 (2nded.). {u) Doe d. Bennett v. Turner, 7 ^I. & W. 226 ; 9 Id. 643. (x-) Co. Lit. 55 b. (i/) Pin]t07'H V. Soustcr, S Exch. 763 ; Carpenter v. Collins, Yelv. 73 ; Ball v. Cullimore, 2 C, M. & R. 120. {z) Pi,oe d. Blair v. Street, 2 A. & E. 329 ; 4 N. & M. 42. {a) Dinsdale v. Isles, 2 Lev. 88 ; 1 Ld. Raym. 224. [h) Daniels v. Davison, 16 Yes. 249 ; 10 R. R. 171. {c) Doe d. Price v. Price, 9 Bing. 356. (d) Locke v. Matthcus, 13 C. B., N. S. 753 ; 9 Jur., N. S. 874. 16 242 Chap. YI. — Tenancies for less than Years, etc. Ch.VI. Sec. 3. Tcnanoj at Assignment by Tenaiit. Bankruptcy. Joint Tenancy. Marriage. Rights of the Parties on the Determina- tion. Removal of Tenant's goods. Aerjuisition of Fee Simjile by Statute of Limitations. A sub-demise or assignment by a tenant without notice thereof to his landlord does not determine the will, so as to prejudice the landlord {e). Becoming an insolvent debtor has been held to be a determination of the will (/), and becoming bankrupt Avould seem to have the same effect. If two joint tenants create a tenancy at will at a certain rent, and one dies, the survivor takes the whole ^n-emises and may maintain an action for the entire rent against the lessee continuing in jjosses- sion (//). So where a lease is made to three joint tenants, rendering rent, the death of one does not determine the tenancy ; but the survivors are liable to jia}' the whole rent (//). A lease at will b}' a feme sole did not, even before the Married Women's Property Act, determine by her marriage, unless the husband did some express act to determine the tenancy' (A) ; nor did the marriage of a feme sole determine a tenancy at will made to her (/?) ; and the effect of the act is to give the married woman the same estate as if she were still a feme sole. The sudden determination of the will of one party will not operate to the material injury of the other : therefore if a tenant at will sow his land, and the landh)rd determine the tenancy before the corn be ripe, the tenant notwithstanding lias free libertv to enter upon the land to cut and carry his crop (?) ; and, on a like principle of justice, the tenant may, in all cases, have reasonable time allowed him to remove his goods after the determination of the estate by the act of the landlord (A). "Where there is a tenancy at will, rent being paid quarterly, the lessee, after a quarter of a year is commenced, may determine his will, bu{ then he must pay that quarter's rent ; and if the lessor determine his will after the commencement of a quarter, he loses his rent for that quarter ; and so it is if the rent be payable half-yearly (/). A tenant at will paying no rent for thirteen years acquires a fee simple in the land demised. Such is the effect of the Real Property Limitation Act, 1833, 3 & 4 W. 4, c. 27, s. 7, and the Real Property Limitation Act, 1874, 37 iS: 38 Yict. c. 57, s. 2. By sect. 2 of the act of 1874, no person may make an entry or bring an action to (e) I'inlwrn v. Souster, 8 Ex. 763 ; Mcllimj V. Leake, 16 C. B. 652. (/) Due tl. Varies y. Thomas, 9 Ex. 98-1. ((/) Hciistead's case, 5 Co. R. 10 b. {h) Hcnstcad's case, 5 Co. R. 10 b. (?) Lit. s. 68 ; Co. Lit. 55 b ; (Hand v. Burdickk, Cro. Eliz. 460 ; Bulvrr v. Bulwer, 2 B. & A. 470, 471. And see Chap. XX., post. {k) Lit. s. 69, "if the lessor i>uts him out, yet he shall have free entrie, egres.se and regresse into the house by reasonable time to take away his goods and utensils ; " Nov's Max. 0. 11 : J)oc d. Xicholl v. M'A'aoj, 10 B. & C. 721. (/) Carpenter v. C'o/lins, Yelv. 73 ; Laij- ton V. Field, 3 Salk. 222 ; Lcighton v. Tliccd, 2 Salk. 413 ; 1 Ld. Kaym. 707 ; Parker V. Harris, 4 JMod. 79 ; 1 Salk. 262 : Title V, Grovett, 2 Ld. Raym. 1008 ; Co. Lit. 55 a, b, note 374 ; Ki., N. S. 753 ; 32 L. J., C. P. 9. (5) See Eandall v. Stevens, 2 E. & 15. 641 : and see the question very fully dis- cussed in the notes to Tca/lur v. Horde, 2 Sm. L. C. (0 Day V. Day, L. E., 3 P. C. 7.51 ; 40 L.J.,P.C.35;24L.T.856; 19W.R. 1017. («) See Darby and Bosanquet, p. 262, citing Doe d. Goody v. Carter, 9 Q. B. 863. (.r) IVhitmore v. Humphries, L. R., 7 C. P. 4 ; 41 L. J., C. P. 43. iy) Day v. Day, L. R., 3 P. C. 751. (c) Brighton (Mayor) v. Brii/hton (Guar- diam), 5 C. P. D. 568 ; 49 L.'j..C. P. 648. (a) Doe tl. Stanwayv. Rock, 4 M. k G. 30. Sect. 3. — Tenancy at Will. 245 eject at the end of the 99 years the successors of the party who had Ch.YI. Sec 3. o'ranted the au;reement for a lease after their re-entry (h). Tenancy at The proyiso as to trusts at the end of sect. 7 of 3 & 4 W. 4, c. 27, {Acquisition of applies to express trusts only, and not to an implied trust such as Simple). that created by occupation under an agreement for purchase ic). Piwiso as •> ^ ^ ^ ^ ^ to Trusts applies to Express Trusts only. Sect. 4. — Tciudicij on Sufferance. A tenant on suiferance is one who entered by a lawful demise or title, and after that has ceased wrongfully continues in possession without the assent or dissent of the person next entitled (d) ; as where a tenant pur autre vie continues in possession after the death of the cestui que vie {e) ; or where any one continues in possession without agreement after a particular estate is ended (/). If a tenant for years surrender and then hold over, he will be either tenant on sufferance or disseisor, at the election of the landlord (//). An under- tenant who is in possession at the determination of the original lease, and is suffered by the reversioner to hold over, is only a tenant on sufferance {]i). Where a tenancy at will is determined by the landlord exercising acts of ownership, and the tenant remains in possession, he becomes tenant on sufferance only : but slight evidence would be sufficient to show a new creation of a tenancy at will (i), or he ma}- by payment of rent or other acknowledgment of tenancy become tenant from year to year (A). There is a great difference between a tenant at will and a tenant on sufferance : the former is always in by right ; but the latter holds over by wrong after the expiration of a lawful title (I). The rever- sioner who suffers this is considered to be guilty of some laches or negligence, as is generally the case. Against the crown there can be no tenant on sufferance, for the crown not being capable of commit- ting laches, such person will be an intruder (in). Where a cottager occupied a piece of land inclosed from the waste on the side of a turnpike road for more than thirty years, without paying rent, and at How a Tenancy on Sufferance ih constituted. Distinction between Tenant at Will and Tenant on Sutlerance. (b) Warren v. Murray, [1891] 2 (^ B. 648 ; 64 L. J.. Q. B. 42 ; 71 L.T. 458 ; 43 W. R. 3 ; 9 R. 793— C. A. (c) lb. {d) Co. Lit. .57 b, 270 b ; 1 Stepli. Com. 273. (c) Co. Lit. 57 b ; Allen v. Hill, Cro. Eliz. 238 ; 3 Leon. 153. (/) Com. Dig. tit. Estates (R.) ; Doc d. Martin v. Watts, 7 T. R. 83 ; 4 R. R. 387 ; iioc d. Jordan v. Ward, 1 H. Blac. 96 ; 2 R. R. 728 ; Doe d. Collins v. Welter, 7 T. R. 487 ; 4 R. R. 496 ; Doe d. Tucker V. Morse, 1 B. & Ad. 365. (. & C. 413 ; and see Doc d. Thompso7i v. Clark, 8 B. & C. 717 ; Locke v. Mattheics, 13 C. B., N. S. 753 ; 9 Jur., N. S. 874. (o) Doc d. Knight v. Quiijlcy, 2 Camp. 505 ; 11 R. R. 780. {p) Barry v. Goodman, 2 'M. & ^V. 768. (7) Doe d. Lccson v. Saycr, 3 Camp. 8 ; Doe d. Bennett v. Turner, 7 M. & \V. 226 ; Doe d. Heming v. Brett, Hurl. & W. 3 ; Cole Ejec. 457. (/•) Doe d. Crisj) v. Barber, 2 T. R. 749 ; 1 R. R. 611 ; Doc d. Harrison v. Murrcll. 8 C. & P. 134. (s) Cole Ejec. 456. (/) S/tojiland v. Ryolcr, Cro. Jac. 55, 99 ; Thunder d. Weaver v. Belcher, 3 East, 449. (ij) Gibbs V. Cruikshank, L. K., 8 C. P. 454 ; 42 L. J., C. P. 273. Sect. 5. — Tenancy of Mortgagor to Mortgagee. 247 shall have been given by the mortgagee, or unless the cause of action Ch.VI. Sec.o. arise upon some joint contract, sue for possession or rent in his own Tenancy of Mortgagor to name only. Mortgagee. In order to obtain for the mortgagee the benefit of being able to "Attornment recover his interest as rent by the preferential remedy of distress, it Clause" in became common to insert in mortgage deeds an " attornment clause," Deed? ° by which the mortgagor " attorns," or agrees to become tenant to, the mortgagee at a rent representing the interest ; and this fictitious tenancy has given rise to much litigation. Where the mortgagor agreed to become tenant to the mortgagee at his will and pleasure, at the rate of 25Z. per annum, payable quarterly, and occupied for two years, pa3'ing the rent, it was held to be a tenanc}' at will, and not from year to year (a;). So where it was agreed that the mortgagor should hold the premises as tenant at will to the mortgagee at a specified rent, for which it should be lawful for the mortgagee to distrain, it was held that the clause creating a tenancy was operative, as not being inconsistent with the main object of the instrument, and that a tenancy at will was thereby created (?/)• But where the attornment clause expressly provides for a tenancy from year to year, a tenancy at will is not created by words also expressly providing that the mortgagee may re-enter and determine Thrclfail, the tenancy at any time without notice, so that the mortgagee in such a case may distrain under the 42nd section of the Bankruptcy Act, 1883 (-2'). AVhere the mortgagor by the mortgage deed attorned and agreed to become tenant from year to year to the mortgagee at a fixed rent, payable half-yearly, to enable him to distrain for his interest when in arrear, and with the usual j^ower of entry after default ; it was held, that such attornment did not create a tenancy from year to A-ear icith all its incidents, and that the mortgagee might, after default, maintain ejectment against the mortgagor without giving him six months' notice to quit (a). The mere fact that the mortgagee has received i)iterest down to a time later than the day of demise in eject- ment, is not a recognition of the mortgagor as his tenant (h) ; nor is the distraining after such day of demise, for interest due before the day, under a power to do so as for rent reserved on a lease, there being no clause that the mortgagor shall keep possession so long as he pays interest (c). Where a mortgage deed contained a covenant that the {x) Doe d. Barstow v. Cox, 11 Q. B. L. J., Ch. 832 ; 4o L. T. 290 ; 30 W. R. 122 ; Doc d. Dixie v. Davics, 7 Exch. 89. 38— C. A. {y) Pinhorn v. Souster, 8 Exch. 763. (a) Metropolitan Counties Assurance Co. [z) Queen s Benefit Building Society, v. Brown, 4 H. & N. 428. ExpaHe, Thrclfail, hire, 16 Ch. D. 274 ; {h) Doc d. Rogers v. Cachcallacler, 2 50 L. J., Ch. 318 ; 44 L. T. 74 : 29 W. K. B. & Ad. 473 ; but see Doc d. JVhitakcr v. 128— C. A. Hales, 7 Bing. 322. Asto what amount may be distrained for (r.) Doe d. JVilhinson v. Goodier, 10 under an attornment clause, see Harrisun, Q. B. 957 ; Metro'politanCounties Assurance Ex parte, Betts, hi re, 18 Ch. D. 127 ; 50 Co. v. Brotcn, 4 H. & N. 428. In re. 248 Chap. YI. — Tenancies for less- than Years, etc. Ch. VI. Sec. 5. Tenancy of Mortgagor to Mortgagee. "Attornment Clause " in Mortgage Deed — contd. Notice of Intention to treat Mortgagor as Tenant. Clowes V. Hughes. Attornment to St'cond Mortgagee, Funnctt, Ex parte. mortgagor, during his occupation, should pa}' a rent rather hirger than the interest, half-yearl}', and that the mortgagee should have the usual remedies of landlords of distress and sale ; provided that this reserva- tion should not prejudice the mortgagee's right to enter and evict the mortgagor ; it was held that, after distraining for one half- j^ear's rent, the mortgagee might eject the mortgagor, without notice to quit, after a subsequent default {d) . So where a mortgage deed contained a clause that for the better securing the principal and interest, and in contem- plation of part discharge thereof, the mortgagor attorned tenant to the mortgagee, at a quarterly rent, to be recoverable b}' distress and sale, or action, with a pt)wer of immediate entry and sale for the mortgagee, upon default of payment of the mortgage money ; it was held there w^as no need of a notice to quit after default (c). But in Clowes v. Hughes, where the mortgage deed provided that the mortgagor, in event of default, should immediatel}', or at any time after such default, hold the mortgaged premises as yearlj' tenant to the mortgagees from the date of the deed, and that they should have the same remedies for recovering the rent as if it had been reserved upon a common lease, it was held that notice of an intention to treat the mortgagor as tenant was a condition precedent to distress (/). A mortgage deed executed by the mortgagor onl}- contained a clause whereby, " for the more effectual recovery of the interest, the mortgagor did attorn and become tenant to the mortgagee of the premises at the j'earl}' rent of 40L to be paid half-yearly, so long as the principal sum remained secured ; " the mortgagor continued in possession, and made several of these half- yearly payments ; it was held, that the subsequent occupation, con- nected with the covenant, created the relation of landlord and tenant, and that the mortgagee might distrain for a half-yearl}' payment in arrear (/y) ; but the principle of this case does not apply to a con- tinuance of occupation with payment of rent by the heir-at-law of the mortgagor (//). A mortgagor may attorn tenant to two mortgagees in respect of the same property. And if the amount of the rents fixed by the two attornment clauses is fair, so as not to raise a fraud upon the law of bankruptcy, valid distresses can be levied by both mortgagees after the commencement of the bankruptcy of the mortgagor. So it was held b}' the Court of Appeal in Pannett, ex jyartc, Kitchin, in re {i). (d) Doc d. Garrod v. Ollcij, 12 A. & E. 481 ; Metropolitan Counties Assurance Co. V. Brovn, supra. (c) Doc d. Sncll v. Tom, 4 Q. B. 615 ; Metropolitan Counties Assurance Co. v. Brown, supra. (/■) Clowes V. Hughes, L. R., 5 Ex. 160 ; 39 L. J., Ex. 62 ; 22 L. T. 103 ; 18 W. K. 459. ('7) West V. Fritchc, 3 Excli. 216 ; Mortun V. Woods, L. R., 3 Q. B. 658 ; 37 L. J., (,). B. 242 : air. L. R., 3 Q. B. 293. {h) Scohic V. Collins, [1895] 1 Q. B. 375 ; 64 L. J.,Q. B. 10; 71 L. T. 775. (i) Pannett, Ex })artc, Kitchin, In re, 16 Ch. D. 226 ; 50 L. J., Ch. 212; 44 L. T. 226 ; 29 W. R. 129. Sect. 5. — Tenancy of Moetgagok to Mortgagee. 249 A rent may be so excessive as to lead tlie court to the conclusion Ch.vI. Sec. 5. that the attornment clause was a mere device to obtain an additional Tenancy of 1-1 1- -n 1 • T 1 • Mortgagor to security, in which case a distress will be invalid as against the trustees Mortgagee. in bankruptcy as a fraud upon the bankruptcy law (A). Fraud on It is enacted by s. 6 of the Bills of Sale Act, 1878, that " every Bankruptcy , . . . , ■ Law. attornment, instrument, or agreement, not being a mining lease "(/), i,^ , f pn whereby a power of distress is "given" (it has been held that this of Sale Act, means expressly given over specified goods (;«)) and rent reserved as a Attornment mode of jDroviding for interest on a debt, "shall be deemed to be a Clauses. bill of sale " of the chattels which may be seized under the distress (so as to be void unless registered as directed by s. 8 of the Bills of Sale Act (1878) Amendment Act, 1882) ; but a proviso is added that nothing in the section shall extend to any mortgage of an estate "which the mortgagee, being in jjosscssion (k), shall have demised to the mortgagor as his tenant at a fair and reasonable rent." This section appears to add the requirement of possession on the yart of the mortgagee, but otherwise to incorporate the eifect of the decisions prior to 1878, and to exempt reasonable attornment clauses from the operation of the Bills of Sale Acts. A power to distrain off premises Distress otl" demised by a mining lease on an}' adjoining or neighbouring collieries 'demised is limited to the demised collieiy, and such collieries only as may be or become connected with it by underground workings, and is a power of distress for a real rent, and the lease in which it is contained does not require registration, either as conferring a power of distress by way of security for a debt within this section, or otherwise (o). By the Bills of Sale Act, 1882, s. 8, unregistered bills of sale, Bills of Sale executed after the commencement of that act, are void, not only, as ^'^^' ^^^^' under the acts of 1854 and 1878, as against execution creditors and trustees in bankruptcy, but as against the grantor, and unregistered attornment clauses must always be attended with considerable risk to mortgagees. It has been held that a clause whereby the mort- gagor simply attorned tenant to the mortgagee (who had not been in possession) at a yearly rent by quarterly payments, was a bill of sale (A.') Jackson, Ex parte, Bowes, In re, admission that 2001. was due, but without 14 Ch. D. 725 ; 43 L. T. 272 ; 29 W. K. any additional power of distress. It was 253 — C. A. See also JFilUams, Ex parte, unsuccessfully contended that the agree- 7 Ch. D. 138 ; Stockton Iron Co., In, re, 10 ment was a new demise by a mortgagee in Ch. D. 335 ; Punnett, Ex parte, supra. possession, and held that both the attorn- (/) See Roundwood Colliery Co., In re, ment clause and the subseijuent agreement [1897] 1 Ch. 373 — C. A., and infra. were void for want of registration. {in) Hall V. Comfort, 18 Q. B. D. 11 ; (o) lioundwood Collv.ry Co., In re, Lee 35 W. E.. 48. V. lioundwood Colliery Co., [1897] 1 Ch. {n) In Green v. Marsh, [1892] 2 Q. B. 373 ; 66 L. J., Ch. 186 ; 75 L. T. 641 ; 45 230 ; 61 L. J., Q. B. 442— C. A., there was W. R. 324— C. A. It was also held that an attornment clause with power of distress even if the power could not be so regarded, at a rent of 250/. a year, and afterwards then, being a power not uncommon in an agreement for rent at 5/. a week and mining leases, it would come within the to (^uit on four weeks' notice with an exception in sect. 6 in favour of such leases. 250 Chap. VI.— Tenancies for less than Years, etc. Ch.VI. Sec.5. Ti'i/ancij of Mortyagor to Mortgagee. Attornment Clauses — contd. Kennedy, Ex parte, IFillis, In re. Construction of ^lortgage Deeds. within the section, so that where the mortgagee distrained after the mortgagor had been adjudicated bankrupt, the distress was unlawful, and the trustee in bankruptcy was entitled to the money realized by the distress, and this decision was affirmed b}' the Court of Appeal, in which it was laid down that the proviso of sect. 6 of the act of 1878 api)lies only to cases in w^hich the mortgagee having previously taken possession of the mortgaged premises has demised them to the mortgagor, and not to a case where the demise is created by the mortgage deed itself {]>). It has since been pointed out that the Bills of Sale Acts are directed not at the ownership of real but of personal property, and held expressly that an attornment clause is eftectual to create the relation of landlord and tenant between mortgagor and mortgagee, and is not avoided by s. 6 of the Bills of Sale Act, 1878, except as regards the power of distress ; so that it is valid to the extent of allowing the mortgagee to eject the mortgagor by summary judgment under Order XIV. (7). A mortgage indenture, after a power of sale on non-payment of the mortgage-mone}', contained a covenant by the mortgagee that there should be no sale or notice of sale, nor means taken for obtaining possession until a j'ear after notice thereof to the mortgagor : the mortgagee also covenanted for quiet enjoyment by the mortgagor or his tenant at Avill, on payment of a yearly rent ; it was held, that under this deed the mortgagor was tenant at will only to the mort- gagee, and that no tenancy from j^ear to year was thereby created (r). An estate was mortgaged in fee, with the usual proviso for redemp- tion, on payment in June, 1834, and it was also provided that the mort- gagee should not call in the principal money until December, 1840, if the interest were regularly paid ; and there was a covenant that the mortgagor should hold, occupy and enjoy the estate until default in payment of the principal or interest as aforesaid ; it was held that this operated as a lease to the mortgagor until December, 1840 (s). A tenant for years of a house demised it by w^ay of mortgage to hold from thenceforth, subject to the proviso after named ; and he further sold and transferred the fixtures and some chattels to the mortgagee, also subject to the proviso after named ; the deed contained a proviso or reconveyance on payment of the monej^ on a certain day, and also a proviso that, on non-payment, the mortgagee might enter and receive the rents, and sell the premises, and fixtures ; it was held that the mortgagee's right to take possession did not attach until the day on I {j)) Kennahj, Ex parte, WilJis, In. re, 21 Q. B. I). 384 ; o7 L. J., Q. li. 634 ; 36 W. K. 793, per Lindley ami Lopes, L.JJ., dub. Lord Esher, .M.R. , attirming Cave, J., and giving leave to ajipeal to the House of" Lords. (No appeal was in fact brought. ) {q) Mumford v. Collier, 25 ocd. Atkinsx. Roc, 2 Chit. K. 179. {cl) Doe d. Xeu-bif v. Jackson, 1 B. k C. 448 ; Kirtland v. jPounsett, 2 Taunt. 145 ; Ifearn v, Tomlin, Peake, 192 ; 3 R. R. 684 ; Hope v. Booth, 1 B. & Ad. 498 ; Doc d. Milburn v. Edgar, 2 Bin<;. N. C. 498 ; Wintcrhottom v. Imjham, 7 ^^ B. 611. (e) Right d. Lewis v. Beard, 13 East, 110 ; Doe d. Newhy v. Jackson, 1 B. &. C. 448 ; Doc d. Milburn v. Edgar, 2 Bing. N. C. 498 ; Doc d. Stamcay v. Rock, 4 M. & G. 30 ; Doc d. Gray v. Stanion, 1 M. & W. 700 ; Cole Ejec. 58. (/) Doe il. Tomes v. Chamberlain, 5 il. & W. 14 ; Doe d. Bord v. Burton, 16 Q. B. 807. (.7) Doc d. Hiatt v. Miller, 5 C. & P. 595 ; Ball v. Cullimorc, 2 C, M. & R. 120. (A) In re Banks v. Rebbeck, 2 Low. M. & P. 452. Sect. 7. — Vendor and Vendee. 253 estate sold by auction has been sutierecl to enter upon and hold the Ch.VI. Sfx.7. premises while the title was under investigation, and the contract Vendor and VoidiCc has afterwards been determined for want of title, the vendor cannot '- — on these grounds onl}- recover for use and occupation, although a jury find that the occupation has been beneficial (?')• But where by the contract of sale he admits himself to be tenant from week to week to the vendor at a fixed sum per week, pa3^able in advance or otherwise, such rent may be distrained for (A). And if the vendee retain possession after the contract of purchase has gone off, he will be liable for subsequent use and occupation (/). An occupation under an agreement for assigning a lease, where it Occupation was agreed that the assignee should pay the lessee, until the com- ^"^''f" ^°ii- ^ ° ^ _ ^ ■■■ • ' tract for pletion of the assignment, at the rate of 100/. per year, was held to Assignment constitute the relation of landlord and tenant between the lessee and '^ ^^^^' assignee (in) ; but where, in an agreement for the sale of leasehold premises, to be paid for by instalments, it was stipulated that, in default of payments of the instalments at specified times, the former instalments should be forfeited, and the vendor should not be com- pellable to conve}^ upon which the purchaser was let into possession, and made default ; he was held to be from thenceforth a mere tenant on sufferance («)• A continuance of occupation by a vendor after conveyance Occupation executed, without any agreement, will not raise an implied tenancy, ^y Vendor, nor render him liable to an action for use and occupation (o). But an express agreement that the purchaser shall receive " all rents and profits " from the day fixed for completion of purchase, entitles the purchaser to a fair occupation rent from the vendor until possession is given (jj ). And the same rule aj)plies, although the delay in completion is the fault of neither party {q). (i) Winterhottctm v. Ingham, 7 Q. B. See also Scaton v. Booth, 4 A. & E. 528. 611. The rents taken from snbtenants, {n) Doc d. Moore v. Lmcdcr, 1 Stark, not recoverable under a claim for use and R. 308 ; Doe d. Rogers v. Pullen, 2 Bing. occupation (Fuimhall v. Wright, 1 C. & P. K". C. 749. 589), will be recoverable as money paid to (o) Tcio v. Jones, 13 M. & W. 12. the use of the intending vendor. {'p) Metrojiolitan 11. Co. v. Dcfries, L. E., {k) Yeoman v. Ellis, L. R., 2 C. P. 601 ; 2 Q. B. 387 ; 36 L. T. 494 ; 25 W. R. 36 L. J., 0. P. 326. 841 — C. A., affirming decision below, (Z) Roicardx. Shaw, 8 M. & W. 118. L. R., 2 Q. B. U. 189 ; 36 L. T. 150 ; (7n) Saunders v. Miisgravc, 6 B. & C. 25 W. R. 271. 524 ; 2 C. & P. 294; Anderson \. Midland (q) Shcricin v. Shakespeare, 5 De G., R. Co., 3 E. ct E. 614 ; 30 L. J., Q. B. 94. M. .*c G. 517 ; 23 L. J., Ch. 177. ( 254 ) CHAPTER YII. OF SUBSTITUTION OF PARTIES TO THE CONTRACT OF TENANCY BY ASSIGNMENTS, SUB-LEASE, BANKRlfPTCY, MARRIAGE AND DEATH. Skct. paoe 1. Assignments generally 254 2. Contract for Assignment 255 (a) Generally 255 (b) Contract for Assignment of Reversion 255 (c) Contract for Assignment of Term 256 (d) Title of the Vendor 259 (e) Title Deeds 262 3. Assignment of Reversion 262 4. Severance of Reversion 266 5. Assignment of Term 268 (a) Absohitelv 268 (b) By way of Mortgage 274 6. Severance of Term 275 7. 8nb-lease 276 8. Attornment 278 Sect. vaok 9. Writs of Execution 282 (a) Fieri facias 282 (b) Elegit 288 10. Bankrufitcy of Lessor 285 11. IJankruptov of Lessee 286 (a) Re-entry by Landlord 286 (b) Vesting of Lease in Trustees in Bankruptcy 288 (c) Rescission of Lease 290 (d) Disclaimer of Incase by IVustees in Bankruptcy ... 290 (e) Distress for Rent 297 (f) Proof for Rent 300 12. Marriage 301 (a) Of Female Lessor 301 (b) Of Female Lessee 30J 13. Death 303 (a) Death of Lessor 303 (b) Death of Lessee 303 "What is an Assignment. Sect. 1. — Assignments Generally. An assignment is the transfer or conveyance of some pre-existing term or reversion, estate, right, title, or interest. The party assigning is called the assignor, and he to whom the assignment is made the assignee. The word " assigns " extends not only to the immediate assignee, but also to assignees ad infinitmn (a). Ever}' lessor may assign his reversion, and every lessee may assign his term, unless expressl}' restrained from so doing b}' some condition in his lease (h), or he a tenant at will (c), or on sufferance (d). By s. 6 of the Real Property Act, 1845, 8 & 9 Vict. c. 106, " a contingent, an executory, and a future interest, and a possibility coupled with an interest, in any tenements or hereditaments, of any tenure, whether the object of the gift or limitation of such interest or ])ossibility be or be not ascer- tained, also a right of entry, whether immediate or future, and whether vested or contingent, into or upon any tenements or here- ditaments in England, of any tenure, may be disposed of b}' deed." But a right of re-entry for a forfeiture cannot be so assigned (e). {a) Spencer's case, 5 Co. R. 16 ; Baily V. De Crespiqny, L. R., 4 Q. B. ISO, 186. {!)) Post, Chap. XVI L, Sect. 2. (c) Ante, p. 238. [d) Ante, p. 245. {c) Hunt V. Bishop, 8 Ex. 675. Sect. 1. — Assignments Generally. 255 A person becomes assignee either by his own act, as where he CilYILSecI. executes a deed of assignment to him, or bv act of law, as where by ^-isignments Ti^-ii i"^ T . ■ (jeneralli/. the bankruptcy or death oi the lessee he succeeds to the rights and '- liabiHties of the lessee under the lease as his trustee in bankruptc}' Modes of or executor. Assigament. The Statute of Frauds (/) enacts, "that no leases, estates or Stat. Frauds, interests, either of freehold or terms of years, or any uncertain interest, not being copyhold or customary interest, of, in, to or out of any messuages, manors, lands, tenements, or hereditaments, shall- be assigned, granted or surrendered, unless it be by deed or note in writing, signed b}' the party so assigning, granting or surrendering the same, or their agents thereunto lawfully authorized by writing : or by act and operation of law ; " and the Real Property Act, 1845, 8 & 9 Vict. 8 & 9 Vict. c. 106, s. 3, "an assignment of a chattel interest, not ' > • • being copyhold, in any tenements or hereditaments, shall be void at law unless made bv deed." B}' the Law of Property Amendment Act, 1859, 22 & 23 Vict. Assignment to o- .Ti << 1 n 1 J. • 1 Self and otlier c. do, s. Al, any person snail nave i^ower to assign personal pro- peivon perty, now by law assignable, including chattels real, directly to '^'^ ^, 23 Vict. himself and another person, or other persons or corporation, by the ' like means as he might assign the same to another." Therefore, upon the appointment of a new trustee of leaseholds and personal estate, the continuing trustees may assign the trust property direct to themselves and the new trustees jointly, upon the trusts of the settlement ; whereas previously an assignment and re-assignment were necessary to effect this object. Sect. 2. — The Co)itract for Assignment. (a) Generally. By virtue of the 4th section of the Statute of Frauds, the effect of which has been already considered {g), any contract to sell either a reversion or a term must be in writing. (b) Contract for Assignment of Reversion. Where a reversion is sold, the j)ossession of a tenant is notice to a Sale of purchaser of the actual interest which a tenant may have {li). Where N^otj^^eof the purchaser at the date of the contract knew that the property was Tenant's occupied by a tenant, and did not inquire as to the tenant's interest, (/) 29 Car. 2, c. 3, s. 3. (h) Daniels v. Davison, 15 Yes. 249 , {g) Ante, pp. 90, 92 et seq. And see 10 R. R. 171. Dart on Vendors and Purchasers. 256 Chap. YII. — Assignment, Bankruptcy, Death, etc. Ch.VII.Sec.2. Contract for jisisigirment. Notice of Tenant's Interest— iontd. Payment fur hay and straw. Philli'pfi V. Miller. it was held that he had notice of the lease, which it was subsequently discovered that the tenant had (?'). In Cahallcro v. Henf ij (k) , the conditions of sale of a public-house stated it was in the occupation of a tenant. A brewer, intending to use the public-house for the sale of his beer, agreed to buy it. He afterwards learnt that it was under lease to another brewer for a term of which eight years were unex- pired. Tt was held that the purchaser was not bound to ascertain from the tenant the terms of his tenancy, and that the vendor could not enforce specific performance. In Phillips V. Miller (/), it was held that vendors were not bound to make good to purchasers certain sums paid by the purchasers to tenants for hay and straw according to market value (whereas by the custom of the country fodder value only was payable), in pursuance of special agreements by the vendors with the tenants not mentioned in the particulars of sale. This decision, however, proceeded principally on the ground that the agreements with the tenants were personal contracts not binding on the reversion (m). The vendors bona fide believed that it was unnecessary to mention the agreements in the particulars of sale. Contract for Assignment of Term must be in writing. Decisions on Contracts for Assignment of Term. (c) Contract fov Assifininent of Term. Similarly to a contract to grant a lease, any contract to assign it, however short the residue of the term may be, must by virtue of the 4th section of the Statute of Frauds (set out at length, supra, p. 25-5), be in writing and signed by the party to be charged or his agent. The cases on contracts to grant and contracts to assign a lease turn upon much the same considerations, and contracts to grant have already been dealt with (ante, p. 90). The following cases, however, on contracts for assignment, may be set down liere : — A., being jDossessed of a messuage and premises for the residue of a certain term of j'ears, agreed with B. to relinquish possession to him and to suffer him to become tenant of the premises for the residue of the term, in consideration of B.'s paying a sum of money towards completing certain repairs of the premises. Held, that this was an agi'eement relating to the sale of an interest in land within the statute (n) . A., being tenant under a parol agreement for a seven years' lease, agreed to give up the immediate possession thereof to I^., in order (i) James V. Lichfield, L. R., 9 E.i. T,\. \k) Cahallerov. Hcnti/, L. K., 9 Ch. 447 ; 43 L. J., Ch. 653 ; 22 \V. R. 446. (1) Phillips v. Miller, L. R, 10 C. V. 420 ; 44 L. J., C. P. 265 ; 32 L. T. 63S, Exoh. Ch.. reversing decision below, L. R., 9 C. P. 201. (?») See aUo Roberts v. Tregaskis, 38 L. T. 176, wliere an agreement not to in- crease rent nor give notice to quit wa?. licld not to bind a purcha.ser of the landlord's interest. (?i) Buttermcrc v. Hayes, 5 M. & "W. 456. See also Leafy. Tuton, 10 'S\. k \\ . 393. Sect. 2. — The Contract foe, Assignment. 257 that B. might enter thereon as tenant ; in consideration whereof, and Ch.VII.Sec.2. also as a compensation for certain improvements made by A., and for C^ntmctjor the vahie of certain articles left, B. agreed to pa}^ A. lOOL A. {Of Term). accordingly gave up possession to B., who was thereupon accepted as tenant from year to .year, at a different rent from that formerly paid by A. : and B. afterwards, in part-performance of the agreement on his part, paid A. 51^. In an action to recover the balance of the lOOZ. : — held, that the contract was within the statute, and consequently that the plaintiff was not entitled to recover (o) : except, perhaps, for money found to be due on an account stated {p). So where in considera- tion that A., who was in the possession and occupation of premises wherein he carried on the business of a milkman, would yield up the possession and occupation of the said premises to B., and permit him thenceforth to occupy the same, and wouhl assign over to B. all his property in the stock and plant and deliver the same to B., the latter promised to pay a certain sum, it was held, that this was a contract for an interest in or concerning lands within tlie statute (g). In Hodgson v. Johnson it was agreed verbally that the plaintiff Hodgsojiv. should take possession of a brickyard of which the defendant was Jolmson. tenant, and take the plant and bricks at a valuation, and that the defendant should pay up all rent due, and endeavour to induce the landlord to accept the plaintiff" as tenant. The plaintiff took posses- sion and gave the defendant a warrant of attorney for j^ayment of the sum at which the bricks and plant were valued. A distress was afterwards put in upon the premises, and the plant and bricks sold for rent due from the defendant before the agreement, and the j^laintiff was turned out of possession by the landlord. In an action for breach of the agreement to pay up the rent, it was held, that the contract taken in its entirety was a contract for the sale of an interest in lands within the statute, and therefore that the j)laintift' could not sever and sue only upon that part which related to the payment of rent (r). In Cocking v. Ward{s), the defendant wishing to obtain a farm of Contract by which the plaintiff" was tenant, orally promised to pay the plaintiff ^vj^h existino- lOOZ., if the plaintiff' would surrender and prevail upon the landlord Tenant to pay mi 1 • -/v • T tor and pro- to accept the defendant as tenant, ihe plamtiff quitted as agreed cure accept- and the defendant became tenant. It was held that the contract o"*^*^ °^i Surrender. concerned an interest in land, and that although the contract had cocMmt v. been executed the 100/. could not be recovered, excej^t as money due ^^ard. on account stated in consequence of the defendant having admitted, as he need not have done, that he owed it. • (o) Kelly Y. Wehskr, 12 C. B. 282. 685 ; 5 Jur., N. S. 290. See, however, \p) Cocking v. Ward, 1 C. B. 858. Pulbrook v. Laioes, 1 Q. B. D. 284. {q) Smart V. Harding, 15 C. B. 652. • (,s) Cocking y. Ward, 1 C. B. 158. (r) Hodgson v. Johnson, E., B, & E. L.T. 17 258 Chap. YII. — Assignment, Bankruptcy, Death, etc Ch.VII.Skc.2. Contract fur ^ssi be derived out of a freehold or leasehold estate, the intended assign Freehold, shall not be entitled to call for the title to the freehold." It is to be observed that this rule only barred the purchaser's right to call for the title to the freehold, so that if an under-lease be sold, the title of any mesne landlord might still be called for ; and further that the and by rule does not apply at all to a lease for lives (e). The Conveyancing Act^asur"" Act, 1881, however (44 & 45 Vict. c. 41), enacts, by sect. 3, sub- Leasehold sect. (1), that " under a contract to sell and assign a term of years derived out of a leasehold interest in land, the intended assign shall not have the right to call for the title to the leasehold reversion ; " but this section by sub-sects. (9) and (10) applies only "if and as far as a contrary intention is not expressed in the contract of sale," and "to sales made after the commencement " of the act, i.e. by s. 2, on or after the 1st January, 1882. The words "leasehold reversion " in the Conveyancing Act mean " the reversion of that leasehold interest out of which the term of years contracted to be sold is derived," so that on the grant of a sub-lease bj' a lessee the intending sub-lessee has a right to inspect the lessee's lease (/). (a) Reeve V. Berridge, 36 ^V. R. 517 — De Medina x. Norman, 9 M. & W. 820 • C. A. ; Hyde v. JFarden, L. R., 3 Ex. D. 2 Dowl., N. S. 239 ; Laythorp v Brvani 72 ; 26 W. R. 201— C. A. 2 B. & C. 735. ' ' (&) Sweeting, app. v. Turner, resp., (c) See Dart, V. & P., vol i p 990 41 L. J., Q. B. 58. (/) Gosling V. Woolf. [1893]'l Q.^B 39 • (c) Hally. Betty, 4 M. & G. 410. 68 L. T. 89; 41 W, R. 106 • 5 R 81 (tt) Souter V. Drake, 5 B. & Ad. 992 ; . • • 17—2 260 Chap, YIL — Assignment, Bankruptcy, Death, etc. Cii.VII.Sec.2. Contract for Assignment, Purcliaser to assume that covenants pei-formed. Conveyancing Act, 1881, s. 3, suh-ss. (4) and (5). Agreement lor Lease. Construction of Contracts of Sale. The 3rcl section of the Conveyancing Act, following common forms in conditions of sale, provides also, by sub-sects. (4) and (5), that a purchaser is to assume that covenants have been performed, &c., as follows : — (4.) Where laud sold is held by lease (not including under-lease) the purchaser shall assume, unless the contrary appears, that the lease was duly granted ; and, on production of the receipt for the last payment due for rent under the lease before the date of actual completion of the pur- chase, he shall assume, unless the contrary appears, that all the covenants and provisions of the lease have been duly performed and observed up to the date of actual completion of the purchase. (5.) AVhereland sold is held by under-lease, the purchaser shall assume, unless the contrary appears, that the under-lease and every superior lease were duly granted ; and, on production of the receipt for the last payment due for rent under the under-lease before the date of actual comple- tion of the purchase, he shall assume, unless the contrary appears, that all the covenants and provisions of the under-lease have been duly performed and observed up to the date of actual completion of the pur- chase, and further that all rent due under every superior lease, and all the covenants and provisions of every superior lease, have been paid and duly performed and observed up to that date. Upon a contract for the sale of an agreement for a lease, it is not an implied condition that the lessor has power to grant the lense (r/). This rule was laid down before the Vendor and Purchaser Act, which affirms its principle, but does not expressly embody it. An agreement for the sale of all B.'s interest in a lease does not mean free from all under-leases by way of mortgage and otlier incumbrances then aifecting the premises (/<). When it was stipu- lated (before the Vendor and Purchaser Act) that the vendor should not be obliged to produce the lessor's title, the vendee might not- withstanding insist upon defects in the lessor's title, which were disclosed by the abstract delivered, or which he had discovered aliunde (/) ; but it was said to be otherwise where the purchaser had aereed to take the vendor's title "as he holds the same," without requiring the lessor's title (A;). The Vendor and Purchaser Act appears to admit the objection of defects discovered in the lessor's title by the abstract or otherwise. If a person, who has contracted to purchase the lease of a house, subsequently discovers that it was originally leased jointly with another house, and that the lessor could enter for breach of covenants in respect of either house, he seems clearly not bound to complete the i)urchase. (t;) Kintrea v. Preston, 1 H. & N. Z-u. (h) Phelps V. Protlwro, 16 C. B. 370. \i) Shepherd v. Keatley, 1 C, M. & R. 117 ; Wheeler V. Wru/ht, 7 M. & W. 3.^9 ; Sellick v. Trevor, 11 :M. & W. 722 ; Darloifftonv. Hamilton, Kav, 550. (A-) Spratt V. Jefcn/, 10 'l\. k C. 249 ; JJaj/ward v. Parke, 16 C. B. 295 ; Mills V. Tu-ecd, L. R., 1 C. V. 39. Sect. 2. — The Contract for Assignment. 261 It was usual, before the Conve3'ancing Act, for the vendor of a Ch.vII.Sec.2, leasehold interest to protect himself by a stipulation that the Contract for production of the last receipt for rent should be conclusive evidence {^TUie of of the due performance of covenants. This stipulation was alwa3'S f cndor). strictlv construed against the purchaser (Z). It is now, as we have Objection on •; _ ^ ^ ^ _ (i round oi seen, implied into all contracts b.y s. 3 of the Conve3'ancing Act. Forfeiture. If it be negatived, however, a purchaser of a leasehold ma}^ object to the vendor's title, on the ground that he has incurred a forfeiture, e.g., by omitting for the space of a month to pay the annual premium of insurance pursuant to his covenant, although it does not ajDpear that the lessor has taken advantage of the forfeiture {m). Under a contract for the purchase of the residue of an old term, a purchaser is not bound to accept a similar new lease : for the former differs in value from the latter, the residue of an old term being in certain respects more advantageous {n) ; but a purchaser cannot refuse to perform an agreement for the sale of " the unexpired term of eight years' lease and goodwill," on the ground that only seven years and seven months of the term remained (o). A purchaser cannot resist specific performance on the ground Objection that the lease purchased contains unusual covenants not mentioned of unusual in the contract of sale {p). covenants. It is incumbent on the vendor of a lease which contains a Lessor's ... Ill 1 • T 1 Licence to restriction against alienation, to prove that he has obtained the assign. lessor's consent to the assignment {q) ; and it is also incumbent on him, and not on the purchaser, to procure the lessor's licence for the assignment (7-). If necessar}^, he must pay any reasonable Premium for premium and extra rent required for such consent (.s). This was held in a case where the lessee held at a rent of 36Z. for a term of thirty-five years, and the lessor refused the licence for a sub-lease for twenty-one years at a rent of 65Z., except upon payment of an increased rent of 6Z. and a premium of 50Z. Stuart, V.-C, decreed specific performance, and, in the event of the lessee being unable to grant a proper sub-lease, an inquiry as to damages {s). The failure to procure from the lessor a licence to assign, or to register previous assignments, before the day on which it is agreed to {I) See Bull v. Hutchcns, 32 Bear. 615 ; (/•) Lloijd v. Cris2}e, 5 Taunt. 249 ; 14 Laurie v. Lccs. 7 App. Cas. at p. 32. E. R. 744 ; and see Birminqham v. (m) See Wilson v. Wilson, 14 C. B. Sheridan, 33 L. J.. CIi. 571 ; 12 W. R. 616. ' 658 : Forrer v. Nash, 35 Beav. 167 ; 14 {n) Mason v. Corder, 7 Taunt. 9 ; 17 W. R. 8 ; Wallis v. LiUell, 11 C. B., R. R. 427. N. S. 369 ; 31 L. J., C. P. 100 ; Barton (o) Bclv-orth V. Hassell, 4 Camp. 140 ; v. Banks, 2 F. & F. 213 ; Davis v. 16 R. R. 761. Nisbett, 10 C. B., N. S. 752 ; 31 L. J., {p) Grosvenor v. Grosvenor, 28 L. J., C. P. 6. Cli. 173 ; 5 Jur., N. S. 117. {s) Hilton v. Ti2rpcr, 18 L. T. 626 ; 16 (r/) Mason v. Corder, 7 Taunt. 9 ; 17 R. R. W. R. 888. 427 ; Winter y. Uuviergue, 14 W. R. 699. 262 Chap. VII. — Assignment, Bankruptcy, Death, etc. Ch.YII.Sec.2. Contract for Assignment {Title of Vendor). Proof of Dis- charge of an Incumbrance. Right to Title Deeds goes with R'iglit to Land. Lien on Lease. Custody of expired Lease. assign and give possession of leasehold premises, is no breach of the agreement {t). A pm'chaser is not compellable to accept a title to premises formerly subject to an incumbrance, the discharge of which is shown only by presumption : thus where a leasehold was sold, subject to a ground rent, which was said to be apportioned out of a larger rent, but the apportionment was not evidenced b}' an existing deed, but only by the acceptance of a mesne landlord, and presump- tion ; it was held that the purchaser was not bound to accept the title (»). (e) Il'Kjlits and Liabilities as to Title Deeds. It is an established principle that whoever is entitled to the land has also a right to all the title-deeds affecting it (x) ; and he may maintain an action of detinue against any person who Avithholds them from him after demand made (y) ; or an action of trover {^) ; consequently the party entitled to the term is entitled to the lease. A solicitor's lien on a lease will not prevent the lessee from assigning the estate in the leasehold (a). After the expiration or determination of a lease the lessor is not entitled to possession of it as against the lessee, nor can he main- tain trover for it (h). Sect. 3. — Assignment of Reversion. i;i"ht of -^ lessor may by deed assign his reversion. At common laAv such Assignee of ^n assignment would only have given the assignee a right to the Reversion to ^ , ^. . ,. ^ , .. , i n sue for Breach rent reserved, to distrain lor rent, and to sue tor breaches oi ot Covenant. covenants at law, but not for breaches of express covenants entered into by the lessee with the lessor (c). To remedy this, the statute 32 Hen. 8, c. 34, enacts that all grantees of reversions shall enjoy all the advantages, benefits and remedies by entry for non- payment of rent, or for doing of waste or other forfeiture {d), or by action onl}' for non-performance of conditions, covenants or agree- ments, contained or expressed in leases, which the lessors had; and Liability. conversely, that lessees and their assigns shall have the same 32 lien. 8 c. 34. {t) Stowcll V. Robinson, 3 Bing. N. C. 928. And see Wrigliton v. Nexvtoii, 2 C, M. & K. 124. (ti) Barmvell v, Hcniis, 1 Taunt. 430 10 R. R. 5G0. {x) Harrington v. Price, 3 B. & Ad. 170 ; Hooper v. Ramsbottom, t> 'i'auut. 12. {y) Liyldfoot v. Kcanc, 1 M. & W. 745 ; Slater v. JJanqcrJield, 15 M. & W. 263 ; Newton v. Beck, 3 H. & N. 220. (z) Harrington v. Price, 3 B. & Ad. 173 ; Davies v, Vernon, 6 Q. B. 443. (re) Odell V. Wake, 3 Camp. 394 ; 14 R. R. 7(53. {b) Hall V. Ball, 3 M. & G. 242 ; El- worthu V. Sanford, 3 H. & C. 330 ; 34 L. J., E.x. 42. (f) Martyn v. Williams, 1 H. & X. 817, 826; 26 L. J., Ex. 117. {cl) Bennett v. Herring, 3 C. B., N. S. 370. Sect. 3. — Assignment of Eeversion. 263 remedies against assignees of the reversion as they, the lessees, had against the lessors. This statute does not appl}' where the demise is not by deed (e). If the demise be otherwise than by deed, the lessor, notwithstanding assignment of the reversion, retains his rights of action (/). The statute is also confined to such covenants as "touch and concern the thing demised," and therefore run with the land (g), as already explained (ante, p. 172). To enable the assignee of a reversioner to sue on the covenants in a lease, he must be seised, of the same reversion to which the covenants were originally annexed ; therefore, where there was a lease for years, under which the tenant entered, but which was never executed by the lessor, who died and devised the property, it was held, that the devisee could not sue as assignee of the reversion for breaches of covenants in the lease (li), A lease was made by A. and B. his wife, who were seised of an undivided moiety in right of the wife, and also by C, who was seised of the other undivided moiet}', and it contained a covenant by the lessee, with A. and C. only, to repair ; semble, that this was not a covenant running with the land on which the assignee of the reversion could sue (i). The assignee of a rent reserved by deed (without being an assignee of the reversion, if any), may maintain an action for the rent wliich becomes due after the assignment (A). In Southicell v. Scatter (l), it was doubted whether, by the peculiar form of words there used, the assignor of a reversion could bind the lessee by a stipulation in the assignment that rent could continue to be paid to the assignor, and it is very doubtful whether such an obligation (unless construed as an obligation to pay to the assignor as agent of the assignee) could be created by any form of words whatever. Such a stipulation seems to be repugnant to the assign- ment of a reversion, the verj^ essence of which is that the assignee should stand to the lessee in the j^lace of the assignor, whereas such a stipulation makes practically two landlords. The rule that a tenant may not dispute his landlord's title (m) applies onl}' to the title of the original landlord who let him in, and not to that of an assignee of the reversion (ii), and such title may be disputed by a tenant. But if the tenant has paid rent to a Ch.VII.Sec.3. Assignment of Reversion. Lease must be by Deed. Covenants must run with land. Reversion must be the same. Assignment with reserva- tion of rent to Assignor. Dispute of title of Assignee by Tenant. Carlton v. Boiccock. (c) Standcny. Chrisimas, 10 Q. B. f35; Elliottv. Johnson, L. R., 2 Q. B. 12; 36 L. J., Q. B. 41 ; 8 B. & S. 38. (/) Bickford v. Parson, 5 C. B. 920. [g) See Spencer's case, 1 Sm. L. C. (h) Car dwell v. Lucas, 2 M. & W. Ill ; Cooch V. Goodman, 2 Q. B. 580. (i) Wootton V. Steffenoai, 12 M. & W. 129 ; Thompson v. Hakeioill, 19 C. B., N. S. 717 ; 3o L. J., C. P. IS. {h) Williams v. Haijward, 1 E. & E. 1040; 28 L. J., Q. B. 374; Allen v. Bryan, 5 B. & C. 512 ; 4 L. J., K. B. 210 ; 29 R. R. 307 ; Bobins v. Cox, 1 Lev. 22 ; Neuxomhe v. Harvey, Carth. Itjl. (/) Soidhwcll V. Scotler, 49 L. J., Ex. 356, (7h) Cooke V. Loxlcy. 5 T. R. 4 ; 2 R. R. 521 ; ante, Chai). V., Sect. 22. (?i) Carlton v. Boiucock, 51 L. T. 659, per Cave, J. 264 Chap. VII. — Assignment, Bankruptcy, Death, etc. Ch.VII.Sec.3. Assignment of Reversion. Surrenderee of Copyhold. Mortgagor and Mort- Tpuant.s in Common. Assignee of reversion on lease by estoppel. Cidhhcrlson \ Irving. Reversion of sub-lessee. Assignor can- not sue assignee. claiming assignee of the reversion or his agent, such payment is prima facie evidence of the title of such assignee, and the tenant, except in a case of fraud or misrepresentation, can onl}^ defeat that title by showing that he paid in ignorance, and that some third person is the real assignee of the reversion ; it is not enough for him to show that the claiming assignee has no title (o). The surrenderee of a copyhold reversion may bring covenant against the lessee within the equity of the statute 32 Hen. 8, c. 34; for it is a remedial law, and no prejudice can arise to the lord, not- withstanding the lessee had assigned the term before the surrender (p). If a mortgagor and mortgagee of a term make an under-lease in which the covenants for the rent and repairs are only with the mort- gagor and his assigns, the assignee of the mortgagee cannot maintain an action for the breach of these covenants, because the}' are collateral to his grantor's interest in the land, and therefore do not run with it ; but the mortgagor himself may, the covenants being in gross {q). Where a mortgagor made a lease for a term, reciting the mortgage, and the lessee covenanted to pay a certain sum annually in part of the interest on the mortgage at a certain place, it was held a covenant in gross, not running witli the land (r). On a covenant to repair, tenants in common may sue a lessee of a house, who, after the demise, but before the breach alleged, became a co-tenant of the plaintiffs in the same house (.s). The assignee of the reversion on a lease, which is good only by estoppel, may maintain an action on the covenants, as was held in a case where the lessor was a mortgagor in possession when the lease was granted, and consequently having only a title against the lessee by estoppel, could assign only what he had, so that his assignee had onl}' a title by estoppel against the lessee, or no title at all {t). Where a person, who was in fact tenant from year to yeax (as he held under a void lease for years), underlet by deed for a term, and the under-lessee again underlet by deed for a less term : it was held, that this under-lessee had a reversion on which his assignee could maintain an action of covenant {u). After assigning over a lease, the assignor, having no reversion, cannot sue the assignee except on express covenants contained in the assignment {x). (0) lb. (j)) Glover V. Cop", 1 Salk. 185 ; 4 Mod. 81 ; Whitton v. Pcacocl; 3 Myl. k R. 3'2o. (9) Wchh V. Russell, 3 T. R. 393 ; 1 R. R. 725 ; Stokes v. Riisscll, Id. 679 ; Rtosscll V. Stakes (in error), 1 H. Blac. 562 ; 1 R. R. 732. (r) Parge/er v. Harris, 7 Q. B. 708 ; Saunders v. Mcrryiceather, 3 H. & C. 902 ; 35 L. J., Ex. 115. («) Yates or Gates v. Cole, 2 Bred. & B. 660 ; 23 R. R. 524 : Tunjnam v. Pickard, 2 B. & A. 105 ; Badcleij v. Vigurs, 4 E. & B. 71 ; Nerval v. Pascoe, 34 L. J., Ch. 82. {t) Cvlhbertson v. Irving, 4 H. & N. 742 ; 6 Id. 135. (m) Or ley V. James, 13 M. & W. 209. (./■) Hicks V. Doicning, 1 Ld. Raym. 99; 1 Salk. 13. Sect. 3. — Assignment of Reversion. 265 The assignee of a reversion has no right of action against the Ch.VII.Sec.-3. lessee for arrears of rent due (2/), inasmuch as the right to rent is a ^^^'f^""^^"^ "-^ chose in action, or for breaches of covenants, although running with ; J3r6cicii6s the land, committed before the assignment of the reversion (z) ; but before the assignor may sue for such previous breaches notwithstanding the ^ssigmnent. assignment. Where a mortgagor of a term of years made an under- lease by indenture, this, though at first a lease by estoppel, was held to be convertible into a lease in interest by a re- conveyance by the mortgagees, so as to give a right of action to the assignees of the lessee on the covenants in the under-lease (a). Where by lease of lands in 1872 the lessor covenanted to make a new street within one year, it was held that after his death, in 1878, assignees deriving title from the trustees of his will and his executor were not liable in 1892 to the assignees of the lease for his breach of covenant to make the street (h). The assignee of a reversion may re-enter for breach of covenants, Notice to . , . . j^- i 1 Tenant before other than the covenant to pay rent, without giving notice to the Re-entry for tenant that the reversion has been assigned to him (c). As regards non-payment ^ , ° . 01 Kent. rent, it is expressly provided by 4 Ann, c. 16 (c. 3 in the Revised Statutes), b}' which conveyances of reversions are good and effectual to all intents and purposes without attornment of the tenants, that no tenant is to be prejudiced by the pajanent of any rent to the grantor, or by breach of any condition for non-payment of rent, before notice shall be given to him of the grant by the grantee. The grantee of a reversion, therefore, may take advantage of all covenants icJiich run icitk tlie land (d). The remedy is mutual, for the same statute gives the lessee a right of action against the grantee of the reversion (e). The statute does not extend to mere collateral covenants (/) ; but it includes devises (g). An assignment of the reversion must be bj^ deed (//). A. let a How assign- house to B., as tenant from 3'ear to jeav, and afterwards granted a ^ey^i^j^on lease by deed to C. of the house for twenty-one years : this was held may be made. to transfer the reversion to C, and to disentitle A. to recover from B. any rent which accrued during C.'s lease (?')• A conveyance in fee, whether absolutel}' or by way of mortgage, will pass a term (y) Flight v. Bcntley, 7 Sim. 149. is of course necessary. \z) Martyn v. Williains, 1 H. & N. {d) Spencer's case, 1 Sm. L. C. 60, ante, S17 ; 26 L. J., Ex. 117. p. 172. (a) Webb v. Austin, 7 M. ct G. 701. (c) Jourdain v. Wilson, 4 B. & A. 266. ib) Morris v. Kennedy, [1896] 2 Ir. R. (/) Webb v. Jiussell, 3 T. R. 393; 1 247— C. A. R. R. 725. (c) Scnltock V. Harston, 1 C. P. D. 106 ; (g) Maclicll v. Dunton, 2 Leon. 33. 45 L. J., C. P. 125; 34 L. T. 130; 24 (h) Bcchi y. Terry, ^ Lev. 155 ; Braioley W. R. 431. V. Wade, M'Clel. 664. Xotice of breaches, under the Convey- (i) Harmer v. Bean, 3 C. & K. 307 ; ancing Act (see Chap. VIII. , Sect. 6, post) Burrotcs v. Gradin, 1 13. & L. 213. 266 Chap. VII. — Assignment, Bankruptcy, Death, etc. Ch.VII.Sec.3. Assignment of Reversion. EHect of Mortgage of Reversion. Moss V. Gallimore. Payment of Keiit. Cook V. Guerra. which has been carved out of it, and afterwards re-assigned to the grantor, subject to a sub-lease (A). Mortgages suhsequent to a lease operate as grants of the reversion, and carry with them, as incidental to such reversion, a right to the rent and the benefit of the landlord's remedies for the recovery (l). The mortgagee, therefore, may enforce the payment of the rent from the lessee either by distress or action ; and the lessee will be ex- onerated by such payment from any demand on the part of the mortgagor or those claiming under him ; even though actual com- pulsion on the part of the mortgagee has not been resorted to, but the lessee has paid the rent voluntarily (???). Payment of rent to the mortgagor without notice of the mortgage is valid («), but a voluntary payment of rent in advance is not within this rule, so as to discharge a tenant who had notice of the mortgage before the rent was due, for a voluntary payment of rent in advance is merely a loan b}' the tenant to the landlord (o). A payment, however, is a payment of rent when the rent falls due, and becomes irrecoverable by the mortgagee so far as it is made in respect of rent due before the notice (j)). It is not necessar}'' that the notice should be in terms ; it is sufficient that the mortgage should be brought to the mind of the tenant (q). Assignee of Reversion in Rait. Assignee of I'art of ill version. Sect. 4. — Severance of Reversion. An assignee of the reversion in part of the demised premises, as where A. after having demised 300 acres to B. assigns the reversion in 200 of them by description to C, can sue for apportioned rent at common lavv' (r), and could always, under the statute 32 Hen. 8, c. 34 (ante, p. 262), sue for breach of the covenants respecting that part (s), but could not, under 32 Hen. 8, c. 4, take advantage of a condition for re-entr}' on breach of covenant or any other condition {t). An assignee of part of the reversion, as where A., owner in fee of land, having demised the whole of it to B. for 21 3'ears, assigns the reversion to C. for C.'s life, or assigns the whole reversion to C. and D. as tenants in common, can not only sue for breach of covenant under the statute {tt), but also take advantage of any condition {ttt). 745. {k) Burton v. Barclay, 7 Bin^ (/) Ante, p. 54. {m) Moss V. Gallimore, 1 Dong. 279 ; 1 Smith, L. C. {n) 4 Ann. c. 16, s. 10. (o) De Nicolls v. Saunders, L. R., 5 C. P. 58 ; 39 L. J., C. P. 297 ; 22 L. T. 66] ; 18 W. R. 1106. {p) Cook V. Guerra, L. R., 7 C. P. 132 ; 41 L. J., C. P. 89; 26 L. T. 97; 20 W. R. 367. iq) Id. (?•) As to mode of apportionment, see post, Chap. X., Sect. 6 ; and for an instance of the rare action for apportionment see Burgoyne v. Ainsicorth {Lav; Times news- jiaper for October 10th, 1885), in which case the action was brought in the Bromp- ton County Court. (s) Co. Litt. 315a ; Txcynamy. Pickard, 2 B. k A. 105 ^covenant to repair) ; Badclcy v. Vigurs, 4 E. & B. 71 (covenant to leave in repair). {t) Wright v. Bun-ougJis, 3 C. B. 685. (tt) Attoc V. Hemmings, 2 Bulst. 281. {ttt) Wright v. Burroughs, supra. Sect. 4. — Severance of Eeversion. 267 Where a lease of an undivided part of certain mines contained a Ch.VII.Sec.4. recital of an agreement between the lessee, the lessor, and the Severance of ° _ _ _ lieverston. owners of the other two-thirds, for pulling down an old mill, and building another of larger dimensions, and the lease contained a r^ssignee of covenant to keep such nev/ mill in repair, and so leave it at the end Reversion — of the term, but did not contain a covenant to build, it was held that the assignee of the lessor of the one-third might sue in respect of his interest {u). It has since been enacted — ^witli respect onl}^ to re-entry for non- LawofPro- pa3'ment of rent — by the Law of Propert}- Amendment Act, 1859, ment Act, 22 & 23 Vict. c. 35, s. 3, that— 1859, s. 3. Where the reversion upon a lease is severed, and the rent or other reser- Apportion- vation is legally apportioned, the assio'nee of each part of the reversion shall, "^ent, ou . S6VGrclllCC 01 in respect of the apportioned rent or other reservation allotted or belonging coiulitiou'for to him, have and be entitled to the benefit of all conditions or powers of re-entry on re-entry for non-payment of the original rent or other reservation, in like "on-payment manner as if such conditions or powers had been reserved to him as incident to his part of the reversion in respect of the apportioned rent or other reservation allotted or belonging to him. The passing of the benefit and burden of all covenants and conditions Conveyancing to the several assignees of a severed reversion in the case of a lease ^^ io— 12 after 1881, is provided for by ss. 10 — 12 of the Conveyancing and Law of Property Act, 1881, 44 & 45 Vict. c. 41, as follows : — 10. (1-) Rent reserved by a lease, and the benefit of every covenant Rent and or provision therein contained, having reference to the subject-matter ^ggggg'g cove- thereof, and on the lessee's part to be observed or performed, and every nants to go condition of re-entry and other condition therein contained, shall be with estate in annexed and incident to and shall go with the reversionary estate in the ^"jfj^^'' land, or in any part thereof, immediately expectant on the term granted by the lease, notwithstanding severance of that reversionary estate, and shall be capable of being recovered, received, enforced, and taken advantage of by the person from time to time entitled, subject to the term, to the income of the whole or any part, as the case may require, of the land leased. (2.) This section applies only to leases made after the commencement of this act. 11. (1.) The obligation of a covenant entered into by a lessor with Obligation of reference to the subject-matter of the lease shall, if and as far as the jj'^j^,^"^ ^o bind lessor has power to bind the reversionary estate immediately expectant estate in any on the term granted by the lease, be annexed and incident to and shall part of land, go with that reversionary estate, or the several parts thereof notwith- standing severance of that reversionary estate, and may be taken advantage of and enforced by the person in whom the term is from time to time vested by conveyance, devolution in law, or otherwise ; and, if and as far as the lessor has power to bind the person from time to time entitled to (m) Easterhy v. Sampson, 6 Bing. 644 ; 4 M. & P. 601 (Excli, Ch.). 268 Chap. VII. — Assignment, Bankruptcy, Death, etc. Cn.VII.SEC.4. Severance of Reversion. Conveyancing Act, ss. 10—12 — contd. Apportion- ment on severance, of eveiy condition. General effect of ss. 10—12 of Convey- ancing Act. Action l>y tenants in common. that reversionary estate, the obhgation aforesaid may be taken advantage of and enforced against any person so entitled. (2.) This section apphes only to leases made after the commencement of this act. 12. (1-) Notwithstanding the severance by conveyance, surrender, or otherwise, of the reversionary estate in any land comprised in a lease, and notwithstanding the avoidance or cesser in any other manner of the term granted by a lease as to part only of the land comprised therein, every condition or right of re-entry, and every other condition, contained in the lease, shall be apportioned, and shall remain annexed to the severed parts of the reversionary estate as severed, and shall be in force with respect to the term whereon each severed part is reversionary, or the term in any land which has not been surrendered, or as to which the term has not been avoided or has not otherwise ceased, in like manner as if the land comprised in each severed part, or the land as to which the term remains subsisting, as the case may be, had alone originally been comprised in the lease. (2.) This section applies only to leases made after the commencement of this act. It will have been observed that none of these three sections are retrospective, but that they all apply only to leases made after the commencement of the Act, i.e. by s. 2, on or after the 1st January, 1882. All the sections, however, go beyond the Law of Property Amendment Act, 1859, 22 & 23 Vict. c. 35, s. 3, in their application to all other conditions in addition to the condition of re-entry for non-payment of rent. The 12th section expressly applies to sever- ance " b}' surrender or otherwise" in addition to severance by convej'ance, and also apj^ears to dispense with the necessity of the rent having been apportioned before action of ejectment for non-payment of rent. All the sections apply to leases generally, whereas 32 Hen. 8, c. 34, applies to leases by deed onl}'. One tenant in common cannot join the others in an action without their consent in writing {y) ; but joinder is not necessary, and any one tenant in common may sue singly if he pleases {z), and recover damages in proportion to his interest. Power to assign. Sect. 5. — Assignment of Term. (a) Absolutely. Every tenant, except a tenant on sufferance, has power to assign his term, unless he be, as is frequentl}- the case (a), expressly pro- hibited in the contract of tenancy from doing so. [y) R. S. C. Ord. XVI., Rule 11. (2) Roberts V. HoUavAl, [18{)3] 1 Q. B. 665 ; 62 L. J., Q. B. 621 ; 41 W. R. 494 ; 5 R. 370. («) See post. Chap. XYIL, Sect. 2. Sect. 5. — Assignment of Term. 269 An assignment by a tenant at Avill determines the tenanc}-, but not Cii.VII.Sec.5. without notice to his landlord (b). Assignment of An assignment must, by s. 3 of the Eeal Property Act, 1845, 8 & 9 '- Vict. c. 106, be by deed, and must pass the legal estate of the anioimtstoan assignor ; for a transfer of a mere equitable interest will not make a Assigument. man liable as an assignee. An agreement to take an assignment of a lease, followed b}' possession on the part of the equitable assignee, is not sufficient to give the lessor any right to sue the equitable assignee in equity on the covenant in the lease (c). The delivery and depositing of a lease as a security for money, without any written assignment, passes no interest at law, although it may create a right which may be enforced in equity (d) ; but the transfer may be complete, although the assignee has never in fact got possession of the deed of assignment, by reason of a claim of lien on the j)art of the assignor's attorney for the expense of preparing it (e) . An assignment, as contradistinguished from a sub-lease, signifies Assignment a parting with tJie whule term ; and when the whole term or more ^^' ^"'^^^^^"^o ^ " _ tor wnole oi than the whole term is made over by the lessee, although in the lessee's term. deed by which that is done the rent and a power of re-entry for non- -^c^^**^'"^" ^' payment are reserved to liimself, and not to the original lessor, yet the instrument amounts to an assignment and not a sub-lease (f)? and in such case the person to whom it is made over may sue the original lessor or his assignees of the reversion, or be sued by them as assignee of the term, on the respective covenants in the original lease, which run with the land, even though new covenants are introduced into the assignment {g). Upon this principle an assignee of a term, who had granted a sub-lease for the whole term, was held in Beardman v. Wilson to have in effect assigned over, and therefore to have ceased to be liable to the lessor or his assignee for the subse- quent rent or subsequent breaches of covenant (/?). The effect of the doctrine that the sub-lease is equivalent to an assignment is clearly to deprive the sub-lessor of his right to distrain (i), but it seems to be equally clear that his right to sue upon a covenant for rent remains (k), that he may recover for use and occupation (0, and that he ma}' re-enter for condition broken {))i). {b) PhiJwrnv. Sovstcr, 8 Ex. 763. {h) Beardman v. Wilson, L. R., 4 C. P. (c) Coo: V. Bishoj^, 8 De G.. M. & G. 57 ; 38 L. J., C. P. 91 ; 19 L, T. 282 ; 17 815 ; 26 L. J., Ch. 389. W. R. 54. (d) Doc i\.. Mas! in v. B.oe, 5 Esp. 105; (i) Parmciifer v. Webber, 8 Taunt. 593; Williams V. Evans, 23 Beav. 239. 20 R. R. 575; Brook's Abr. tit. Dette, (e) ■ Odell V. Wake, 3 Camp. 394. pi. 39 ; Preece v. Corrie, 5 Bing. N. (/) Hicks \. Downing, 1 Ld. Raym. 99; C. 24; Pascoc v. Pascoc, 3 Bing. N. C. Palmer v. Ediuards, 1 Doug. 187 ; 898. Thome v. Woolcombc, 3 B. & Ad. 595 ; {k) Baker v. Gosiling, 1 Bing. N. C. 19, Wollaston v. Hakcwill, 3 JI. & G. 297 ; {I) Pollock v. Stacey, 9 Q. B. 1033. Langford v. Selmes, 3 Kay & J. 220. (m) Doc v. Batcman, 2 B. & Aid. 163. ((/) Palmer v. Edwards, 1 Doug. 187, n. 270 Chap. YII. — x\ssignment, Bankruptcy, Death, etc. Ch.VII.Sec.S. Assignment of Term. V>Y sub-lease for whole of sub-lessor's term — contd. Sub-lease for Years by Tenant from Year to Year. Operative Words in Assicrinnents. It is necessary to point out, however, that the extent of the principle that a sub-lease for the whole of the sub-lessor's term amounts to an assignment, has been much controverted {n). Poultney v. Holmes {o), where it was held that a sub-lease b}' parol for the whole of the sub- lessor's term was good to sustain an ejectment of the sub-lessor by the lessee, was questioned in Barrett v. Ilolph (p), and though con- firmed in Pollock V. Staceij (q), had some little doubt thrown upon it in Beardman v. Wilson (r). Upon the preponderance of authority there apj^ears to be a distinction between a sub-lease by deed and a sub-lease by parol only. The sub-lease by parol only not being operative as an assignment by virtue of the Real Property Act, 1845, 8 & 9 Vict. c. 106 (s), is said to create a lease so as to effectuate the intention of the parties (t). A tenant from year to year who underlets for a long term, does not thereby assign all his estate, which may possibly continue longer than the term expressed to be granted b}' the sub-lease (u), and con- sequently retains a reversion with a title to distrain until his defeasible reversion be defeated (x), i.e. until a notice to quit given to him has expired. An assignment is usually made by the word " assign," but some- times " grant, assign, and set over " are used ; no particular words are necessary ; provided the intention of the parties be sufficiently expressed (//). Where a lessee for life granted all his estate and interest to A. and his executors : it was held not to amount to an assignment, because a grant to a man and his executors could not conve}' an estate for life, being a freehold (z). An agreement to assign on payment of a sum b}' instalments, the assignee in the meantime to perform the covenants in the lease and keep the assignor harmless, and the assignor to re-enter on non-payment of any instalment, is merely an agreement for an assignment and not an assignment (a). Where a lessee agreed to execute an effectual assignment of two leases of premises, " as he held the same for terms of twent3'-eight years," and the assignee agreed to accept a proper assignment accordingl}', without requiring the lessor's title, it was held that he was bound to {n) See the authorities reviewed in H. v. JVilsoji, 5 M. & R. 157, n. ; 1 Sm. L. C. in the notes to Spencer^ s case. (o) Poultney v. Holmes, 1 Stra. 405. (p) Barrett v. Rolph, 14 M. & W. 348. {q) Pollock V. Stacey, 9 Q. B. 1033. (?•) Beardinan v. Wilson, L. R., 4 C. P. 17. (s) Or before that Act, by the Statute of Frauds. (0 An Irish statute, 23 & 24 Vict. c. 154, s. 3, in reference to the whole subject, and making no distinction between deed and jiarol, enacts, " that the relation of landlord and tenant shall be deemed to be founded in tlie express or implied contract of the parties, and a reversion shall not be neces- sary to such relation." («) Oxlcy V. James, 13 M. & W. 209. (,v;) lb. (?/) See Forms of Assignments, post, Appendix B. (z) Earl of Derby v. Taylor, 1 East, 502 ; 6 R. R. 337. {a) Hartslwnc v, JVatson, 5 B. & C. 477. Sect. 5. — Assignment of Term. 271 take an assignment of two consecutive leases, though the second was Ch.YII.Sec.5. void, heing executed under a power which had not been pursued (h). Assig^iment of . ... Term. An assignment in consideration of quarterly payments for the remainder of the term will not upon a 2:)ayment being made constitute the assignee a tenant, so as to give the assignor a right to distrain for payments subsequentl}' due (c). In White v. Hunt (d), a debtor assigned to a trustee for the benefit Assicrnment •of his creditors " all his goods and chattels, personal estate, substance Creditors. and effects whatsoever, and all his right, title, property, benefit, claim fFhite v. and demand whatever therein." It was held that these words passed ^^'''^^• a term, and rendered the trustee liable as assignee for rent. The proper and usual covenants on the part of the assignor of a Usual • I • • e M r 1 Covenants in term, viz., that the lease is m full force : that all the rent, covenants Assignments. and conditions have been paid, performed and observed to that time : that he has power to assign : for quiet enjoyment by the assignee during the remainder of the term, without interruption by the assignor or an}' person claiming under him : — free from incumbrances for him : — and for further assurance ; are implied in every assignment made on or after the 1st January, 188'2, by virtue of s. 7 of the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41). The proper covenants on the part of the assignee — for which no provision has been made bv the Convej^ancing Act — are, that he will pay the rent and perform the covenants in the lease and save harmless the assignor from any breach thereof by him or his assigns {e). The right of action of lessee against assignee on the covenant of ^'-'ipng o^ _ ^ _ . . Action on indemnit}' is barred by the order of discharge of the assignee as a Covenant of l)ankrupt, which order frees the assignee from all contingent liability, ^s^f^ee's ^ such as that ui^on the covenant to j'ield up in repair, as having been discharge as provable in bankruptcy (/). The liabilities of an assignor to an assignee upon the covenant of Liability of ° _ ^ , Assignor to indemnity were much considered bj' the Court of Appeal in the Assignee. peculiar case of Russell v. Shoolbred ((/), in which it was held, that I'^usscll v. , 1 T ;i 1 1 Shoolbred an assignor who pays rent has no lien on the term, and cannot be prejudiced by a subsequent assignment; and that a right of distress is not a security to the benefit of which a suret}' paying rent is entitled under the Mercantile Law Amendment Act, 1856 (19 ci: 20 Vict. c. 97, s. 5). On the general covenant to indemnify the proper •costs of defending an action for breach of covenant are recoverable (h) Spratt V. Jcffery, 10 B. & C. 249 ; (/) Hardy v. FotlicrgiU, 13 App. Cas. and see Tweed v. Mills, L. R., 1 C. P. 39. 351 ; 58 L. J., Q. B. 4-1 ; 59 L. T. 273 ; (c) Hazcldine v. Hcaton, C. & E. 40. 37 W. R. 177, affirming 18 Q. B. D. 646 ; \d) White V. Hunt, L. K., 6 Ex. 32 ; 40 35 W. R. 5.^8. L. J., Ex. 23 ; 23 L. T. 559 ; overruiiug {g) Ilime/l v. Shoolbred, 29 Cli. D. 254; ) Sparrow v. Earl of Bristol, \ Marsh. («) Cole Ejec. 569. 10 ; 15 R. R. 666. Sect. 9. — Writs of Execution (Fieri Facias). 283 from an}' under-tenant b}' distress or action in the usual manner (x). Ch.YII.Sec.9. The purchaser becomes liable to the rent and covenants in the ^vnts of Exe- . . . /\-r>T cut ion {Fieri lease in like manner as any other assignee oi the term (_?/). But the Facias). lessee continues liable on his covenants in the lease to pay rent and to repair, &c., notwithstanding the term has been taken from him under the execution (z), in like manner as he would have done had he executed an assignment of the term to a purchaser, in which case he would have probably had the usual covenant of indemnity from such rent and covenants. (b) Elegit. Under a writ of elegit the sheriff, instead of lev3'ing, delivers to Writ of elegit. the creditor who elects this remedy in preference to a levy, the lands of the debtor. The Statute of Westminster 2, from which the writ is derived, provided for the delivery of " all the chattels " and half the land. The Bankruptcy Act, 1883, s. 146, enacts that a writ of elegit " shall not extend to goods," but it is submitted that a leasehold interest does not come within the expression "goods" in that section. The Judgments Act, 1838, 1 & 2 Vict. c. 110, s. 11, authorizes the deliveiy under an elegit of all the lands instead of half only. The words of this section, which appear to include leaseholds (a), are that the sheriff ma}' " make and deliver execution unto the party in that behalf suing of all such lands, tenements, titlies, rents, and hereditaments, including lands and hereditaments of copyhold and customary tenure, as the person against whom execution is so sued, or any person in trust for him, shall have been seised or possessed of at the time of entering up the said judgment (h), or at any time afterwards, or over which such person shall at the time of entering up such judgment, or at any time afterwards, have any disposing power which he might, without the assent of any other person, exercise for his own benefit." The same land cannot be extended under two or more elegits, nor can the sheriff be entitled to poundage under more than one of such writs (c). But if two or more elegits be delivered to the sheriff, he should execute and give priority to that which w'as first delivered to him, and return to the other that he has not delivered the land to the plaintiff by a reasonable price and extent, the same having been (x) Lloyd V. Davics, 2 Exch. 103; at p. 138, decided on s. 13 of the Judgments Mayor, etc. of Poole v. Whitt, 15 M. & W. Act, 1838, 1 & 2 Vict. c. 110. 571. {h) The estates and interests of subse- {[i) 1 Doug. 184. quent bona, fide purchasers and mort- is) ^wrioZ v. i/;7?5, 4 T. R. 98 ; 1 Smith, gagees will not be affected unless the L. C. : 2 R. R. 341. judgment, &c. be duly registered. See (a) See FMlleston v. Morton. IS M. & W. post, 285. at p. 182, decided on the Irish Act, 3 & 4 (c) Carter v. Hughes, 2 H. &; N. 714. Vict. c. 105 ; Harris v. Davison, 15 Sim. 284 Chap. YII. — Assignment, Bankruptcy, Death, etc. Ch.VII.Sec.9. already extended and delivered to A. B. under a writ of elegit dated, TJrttsofExe- ^^ wliicli had iireviouslv been delivered to him to be executed c tit 1071 [Eleffit). . -^ -^ according to law. The sheriff does not usually deliver actual possession of the pro- perty to the execution creditor : but it seems that he may lawfully do so where the debtor himself is in occupation (J). Tenants of the debtor cannot be turned out of possession under an elegit {e). Tlie writ and inquisition thereon, when returned and filed, operate only as an assignment of the reversion ; and therefore the judgment creditor cannot maintain ejectment against the tenants in possession until after their respective terms have expired or been dul}- deter- mined by notice to quit or otherwise (/). But he may, like any other assignee of the reversion, sue or distrain for the rent which becomes due after the filing of the writ and the return thereto, and that without any previous attornment b}- the tenant {g), provided the writ and inquisition be valid, but not otherwise {li). He is not entitled to any rent which became due before the inquisition, although after the delivery of the writ to the sheriff (i). He may give a tenant such notice to quit as the debtor himself might have given, and afterwards maintain ejectment (A). If the tenancy commenced after the judgment was entered up and duly registered, an ejectment may be maintained against such tenant without previous notice to quit [l). So if the debtor liimself is in actual possession {m). AVlien the debt and costs have been satisfied, and that appears upon an account taken by the master, the court will order possession of the land to be restored to the defendant (//). Ret^istration Judgments, kc, will not afiect lands situate in Middlesex or York- &c. ^ ^'^^ ^' shire, as against bona fide purchasers and mortgagees, until a memo- rial thereof is registered pursuant to the statutes in that behalf (o). In those and also in other counties, judgments, &c., must be registered with a Master of the Supreme Court, and execution thereon actually executed and registered, otherwise they will not prejudice subsequent bonfi fide purchasers and mortgagees, with or without notice of the judgment (p). In the counties palatine of Lancaster yd) Rogers v. Pitcher, 6 Tauut. 205 ; (A) Cole Ejec. 566. Chatjidd v. Parker, 8 B. &, C. 543. (/} Doc d. Ptitland v. HiMer, 2 B. & A. {c) Taylor v. Cole, 3 T. R. 295 ; 1 R. R. 782 ; Doe d. Evans v. Oiven, 2 C. & J. 71 ; at p. 711. but see 27 & 28 Vict. c. 112, s. 1, post. (/) Doe d. Da Costa v. Wharton, 8 (ni) Doc d. Parr v. Eoc, 1 Q. B. 700 ; T. R. 1 ; Cole Ejec. 566. Doe d. Eoherts v. Parn/, 13 M. & W. 356 ; ((/) Lloyd V. Davies, 2 Exch. 103 ; 2 D. & L. 43u ; Cole Ejec. 566. Ramsbottom v. Buckhurst, 2 M. & S. 565 ; (h) Price v. Varncy, 3 B. & C. 733 ; 15 R. K. 352. Uxijhcs v. Lumlcy, 4 E. & B. 274. {h) Arnold v. Ridge, 13 C. B. 745; (o) Ecnliam \. Keenc,Z\ h. i.,Q\i.\i9; Cole Ejec. 566. 8 Jur., N. S. 604. {i) Sharp v. Key, 8 j\I. & "\V. 379 ; {2>) See the Judgments Acts, Chitty's 9 Dowl. 770. Statutes, tit. '• Judgment and Execution." I Sect. 9. — AYrits of Execution (Elegit). 285 and Durham, judgments, &:c., must be registered with the proper officers of the courts there (q), and execution thereon actually executed and registered. By the Law of Property Amendment Act, 1860, 23 & 24 Vict. c. 38, s. 1, no judgment to be entered up after tJie passing of that act{r) aft'ects any land (of whatever tenure) as to a bona fide purchaser for valuable consideration, or a mortgage (whether such purchaser or mortgagee have notice or not of anv such judgment), unless process of •execution of such judgment has been issued and registered before the execution of the conveyance or mortgage to him, and the payment •of the j)urchase or mortgage money by him ; but it is also provided that no judgment to be entered up after the passing of the act (s), nor a,ny writ of execution or process thereon, shall affect any land, as to a, bona fide purchaser or mortgagee, although execution shall have issued thereon and have been duly registered, unless it be executed within three calendar months from registration. By the Judgments Act, 1864, 27 & 28 Vict. c.ll2, s. 1, no judg- ment to be entered up after the passing of that act if) aft'ects an}' land (of whatever tenure) until such land has been actually delivered in execution by virtue of a w^it of elegit or other lawful authorit}', in pursuance of the judgment. And b}' sect. 3, the writ itself must be registered pursuant to the Judgment Act, 1860, 23 & 24 Yiet. c. 38 ; after which a summary remedy is given by petition to the Chancery Division of the High Court for a sale of the debtor's interest in the land {u). This act includes equitable interests {x) and since the Judicature Act it has been unnecessary for a creditor, seeking to obtain equitable execution thereunder uj)on an equitable interest, previously to sue out an elegit {y) ; the appointment of a receiver is fi deliverv in execution by lawful authority {z). Ch.VII.Sec.9. Writs of Exe- cution{Elegit). 23 & 24 Vict, c. 38, s. 1. Writ of Exe- cution must be issued and registered ; and also exe- cuted within 3 Months after Registration. Judgment not to affect Land till delivered in Execution. Sect. 10. — Bankruptcy of Lessor. The reversion in lands held bv lease under a landlord becoming Reversion • 1 ■ • vests in bankrupt will under the term property vest m Ins trustees m Trustees. bankruptcy {a), to whom there wall be an assignment of the reversion by operation of law. It is conceived that 34 Hen. 8, c. 34 {h), whereby the assignee of the reversion may sue the lessee on the (?) 18 & 19 Vict. c. 15. (r) 23rd July, 1860. If entered up after •29th July, 1864, see Judgments Act, 1864, -27 & 28 Vict. c. 112, s. 1. (s) 23rd July, 1860. If entered up after .29th July, 1864, see Judgments Act, 1864, .27 & 28 Vict. c. 112, s. 1. [t) 29th July, 1864. {u) Sects. 4, 5, 6 ; see also Jud. Act, 1873, s. 34. {x) Eatton v. Haywood, L. R., 9 Ch. 229 ; 43 L. J., Ch. 372. {y) Evans, E.r parte, IFatkins, In re, 13 Ch. D. 252 ; 49 L. J., Bank. 7— C. A. (z) lb. (ft) Bankruptcy Act, 1883, ss. 64, 168. [b) Ante, p. 262. Chap. VII. — Assignment, Bankruptcy, Death, etc. covenants, does not apply to such an assignment, but whether this be so or not is of little consequence, inasmuch as b}' sect. 57 of the Bankruptcy Act, 1883, trustees in bankruptcy may bring or defend any action, or other legal proceeding, relating to the property of the bankrupt. The Bankruptcy Act contains no special provisions as to the tenants of a bankrupt. In the possible event of a reversion binding the landlord to an act so onerous as to make it worthless in the hands of the trustees, they may disclaim it as being " land burdened with onerous covenants" under sect. 55 of the act(r'). Under sect. 23 of the Act of 1869, the reversion, like any freehold estate, would probably, on disclaimer, have vested in the Crown (d), but by sect. 55, sub-sect. 6 of the Act of 1883 (c) the court may make a vesting order of any disclaimed property, and a tenant would no doubt have a locus sUotdi to ajiply to have such a vesting order made in his favour. The bankruptcy of thr landlord, as soon as known to a tenant at will, operates as a determination of the will, inasmuch as it works an assignment of the reversion {/). If the lessor be himself a tenant having created a sub-lease, the provisions of sect. 55, as to disclaimer, and esjiecially of sub-sects. 2i and thereof (post, pp. 295, 29G), should be carefully considered. Sect. 11. — Banhniptcij of Lessee. (a) Re-entry hy Landlord for Forfeiture. A proviso for re-entry by the lessor in case of the bankruptcy of the lessee has for a long time been commonly inserted in leases ; and in 1787 it was held in Roe d. ILmtcr v. Gallicrs {;/), that such a proviso was perfectly good. Such a proviso, in all except building" leases, is at the present day perhaps more commonly inserted than not, but it has been held nevertheless not to be a " usual " one (/<). A proviso for re-entry if the lessee should be bankrupt or file a petition in liquidation, in a lease executed before the Act of 1883, may be put in force upon the presentation of a petition under that act (i). A condition for actual occupation by the tenant ma}' be put- in operation if trustees in bankruptcy take possession and assign to (c) See tlie effect of this section, post, p. 291. (rf) Jic Mercer &nd Moore, 14 Ch. D. 278; 49 L. J., Ch. 201 ; 42 L. T. 311. (c) Post, p. 296. (/) l)oe\. Thomas, 6 E.x. 854 ; 20 L. J., Ex. 367. ig) Roe d. Hunter v. Gallicrs, 2 T. R. 133; 1 R. R. 445. The lease was an agricultural one. (A) Hyde V. Warden, 3 Ex. D. 72, and see ante, Chap. IV., Sect. 7. (j) (rould, Ex parte, Walker, In re, 13 Q. 13. D. 454 ; 51 L. T. 368 ; B. R. 168. Sect. 11. — Baxkeuptcy of Lessee (Ke-Entry). 287 a purchaser (A), and so may the ordinar}' ijroviso for re-entr}- in case Ch.VII. s. 11. of bankruptc3^ notwithstandino- any such assignment ; but if the Bankruptcy ■ (. ■ ■ 1 ,. of Lessee. proviso be merelv for re-entry m case oi assio-nment without ucence, and do not extend to bankruptcy, the trustees may disregard it, and assign without any licence from the landlord (/), If the proviso be framed to come into effect if the lessee or his Effect of executors, administrators, or assigns, shall becoi\ie bankrupt, and of^Lelsl^g '^^{t^r the lessee become bankrupt after assignment, the proviso cannot be assignment. put in force, for the bankruptcy intended by it is only the bankruptcy of him who has the term, and the proviso cannot be applied for the mere personal protection of the landlord against a stranger to it {m). The annulment of a bankruptcy will not prevent the proviso from Annulment of being put in force {n). Bankruptcy. The proviso for re-entiy in case of bankruptcy may be put in force Ejectment on by peaceable entry or bv action of ejectment, and this is one of the j^'e^enTrv*^ cases in which the notice ordinarily required b}' sect. 14 of the Partial RelieL Conveyancing Act, 1881 (o), is expressly dispensed with b}' that section {p), except as amended by the Conveyancing Act, 1892. But there is no obligation upon the landlord to announce either to the bankrupt or his trustees whether he intends to take advantage of the proviso or not. If, however, after the act of bankruptcy or adjudication or other act to which tiie proviso applies, he accept or distrain for rent with knowledge of such act, he will have waived the forfeiture {q) and the trustees will have become his tenants, the)', however, on their part being at liberty to disclaim the lease within the time and under the restrictions limited by sect. 55 of the Act of 1883. It has been held that in a building agreement a stipulation for Effect of forfeiture of building materials in event of the bankruptcy of the Re°-entry on builder is void as contrary to the policy of the law of bankruptcy, buikUnfi and that such materials pass to the trustees notwithstanding the stipulation (r). It has not been expressly decided whether a "tenant-right" to Tenant-Right. allowances for seed and labour, &c., under a custom of the country passes to trustees in bankruptcy upon a proviso for re-entry in case of bankruj^tcy. The landlord is entitled to emblements in such a case (s), and in Silcock v. Farmer (t) it was held by the Court of Silcock\^ Farmer. {k) Doe d. Lockivoocl v. Clarke, 8 East, 13 Q. B. D. 454, and supra. 185 ; 9 R. R. 402. {q) See post, Chap. VIII., Sect. 5. (0 Doc V. Bcvan, 3 M. & S. 353; 16 (/•) Exparte Jay, Re Harrison, 14 Ch. D. E. R. 293. 19 ; 42 L. T. 600 ; 28 W. R. 449. (7/i) Smith V, Gronow, [1891] 2 Q. B. (,s) See Davis v. Eyton, 7 Bing. 154, and 394 ; 60 L. J., Q. B. 776 ; 65 L. T. 117 ; Chap. XX., Sect. 3 (c). 40 W. R. 46, per Wright, J. [t] Silcock v. Farmer, 46 L. T. 404— {n) Smith v. Gronow, supra. C. A., per Lord Coleridge, C. J., and Brett (o) Post, Chap. VIII., Sect. 6 (b). a.n^ Holker, L.JJ. {p) See Gould, Ex imrte, JFalker, In re. •288 Chap. VII. — Assignment, Bankruptcy, Death, etc. Ch.vII. s. n. lianhruptcy of Lessee {Re- entry). Hay and Straw. Fixtures. Partial Relief, against For- feiture. Appeal that a stipulation to pay for bay and straw grown in the last year of the term at the expiration of the term applied only to an expiration b}' effluxion of time, and not to a determination by re- entry for forfeiture. This decision, which is at variance in principle with some old authorities (»), would it is conceived have the effect of preventing a tenant-right under a custom from passing to the trustees, but a right to allowances under the Agricultural Holdings Act (Chap. XXI., post) would seem to be given them by sect. 61 of that act. Eemovable fixtures {x) are removable during the term only or during such period after the expiration of it in which the tenant continues in lawful possession. Therefore after re-entry for for- feiture by bankruptcy the trustees have no right to enter and remove the fixtures {y), unless indeed the lease contain a stipulation for their removal by the bankrupt, in which case the trustees may enter and remove within a reasonable time after the re-entry by the land- lord {z) or at any rate recover them from the landlord by action {a). The peculiar and partial relief against forfeiture in case of bank- ruptcy, which was newly given by the Conveyancing Act, 1892, will be dealt with hereafter (post, Chap. YIII., Sect. 6). Time of Vesting. Tenancy from Year to Year. Assignment by Trustees. (b) Vestinf) of Lease in Trustees in Bankruptey. If the lease contain no proviso for re-entry in case of bankruptcy, or if it contain one, and the landlord does not re-enter, the lease, subject to the right of disclaimer which will be considered presently, vests in the ofhcial receiver on the lessee being adjudged bankrupt, and in the bankrupt's trustees as from time of their appointment {h). The bankrupt's option to claim a lease passes to his trustees (r) and so does his contract for a lease. A tenancy from year to year clearly vests in the trustee on the bankruptc}' of the tenant, so as to render the trustee, unless he disclaims, liable for rent (r/). Trustees in bankruptcy may assign the lease to a purchaser with- out any licence from the landlord, notwithstanding that it contain a covenant against assignment {e) whether such covenant be with the lessee and his executors merel}' ( /') or with the lessee his executors (?f) See Ex parte Maundrdl, Re Drake, 1 Buck, 85, in which was held in 1817 that a right to way-going crops under a lease determined by tlie Lord Chancellor under tiie rei)ealed 49 Geo. 3, c. 121, s. 10, passed to assignees in bankruptey. (a;) See as to this, post. Chap. XVI., Sect. 8. (y) See Pvghv. Arton, L. K., 8 Eq. 626. (z) Slansfield v. Mayor of Portsmouth, 4 0. B., N. S. 120 ; 27 L. J., C. P. 124. (a) Gould, Ex parte. Walker, In re, supra, note (/>). (6) Bankruptcy Act, 1883, s. 54. (c) Buckland v. Papillon, L. R., 2 Cii. 67 ; 36 L. J., Ch. 81 ; 15 L. T. 378. [d] And see Robson on Bankruptcy, 6th ed., p. 451. (c) Doe V. Bevan., 3 M. & S. 353 ; 2 Rose, 455 ; 16 R. R. 293. (/) I)oe V. Smith, 1 Mai-sh, 359 ; 5 Taunt. 795 ; 15 R. R. 660 ; 2 Rose, 280, 456. Sect. 11. — Bankruptcy of Lessee. 289 and assigns (f/). They may also assign to a panper for the mere Ch.YII. s. li. purpose of getting rid of their liability (h) upon the covenants in the SankrupUij lease, which liability is personal, with a right to be indemnified out (Trustees). of the assets (/). To Pauper. Trustees can claim against the landlord, at the expiration of their Tersonal own tenancy by a notice to quit, all that the bankrupt tenant could ''^ ^^ "'. have claimed against him, and the landlord cannot set off against a Set-'off. " claim by trustees for allowances by custom a claim of his own for rent due from the tenant before the bankruptcy {k). The tenanc}' of the trustees will be determinable in the same Determina- manner as that of the bankrupt was, i.e., by expiration of a lease, or ^^jg^- Tenancy. by notice to quit in the case of a tenancy from year to year, given by either the trustees or the landlord. In a large number of cases, however, it is to be expected that the trustees will resort to the peculiar provisions of the Bankruptcy Act, and determine the tenancy by '' disclaimer " (/). A surety for a lessee will not be discharged b}' his trustee taking Surety not to the lease (m). discharged. It is enacted by the Sale of Farming Stock Act, 1816, 56 Geo. 3, User of Hay c. 50 (u), s. 11, that " no assignee of any bankrupt " should dispose of an}' hay, straw, grass or grasses, turnips or other roots or any other produce " of a farm, or an}' manure, compost, ashes, seaweed or other dressings " intended for the farm in any other way than the bankrupt ought to have disposed of the same, if no commission of bankruptcy had issued. It was held by the Court of Appeal in Lijhhe v. Hart (o), that this act applied to a trustee in bankruptcy under the Act of 1869 ; and it would seem also to apply to a bankruptcy under the Act of 1883, Hay and so that a trustee, notwithstanding disclaimer, is not entitled to sell hay, &c., which is subject to a covenant for consumjjtion on the farm. Where a tenant restrained from selling hay and straw became bankrupt, and his trustee sold and afterwards disclaimed, it was held that the landlord could recover from the trustee, and that the trustee could not counterclaim for improvements within the Agri- cultural Holdings Acts (post. Chap. XXI., Sect. 3), inasmuch as s. 8 of that Act makes it compulsory for the tenant or his representative to proceed by arbitration (})). (g) Doe V. Bevan, ubi supra. 281 ; 51 L. J., Q. B. D. 515 ; 47 L. T. [h) Hopkinson v. Lovering, 11 Q. B. D. 100 ; 31 W. R. 42. 692 ; 52 L. J., Q. B. 391. " (?i) See this act at length, post, Appendix, (i) Titterton v. Cooper, 9 Q. B. D. 473 ; (o) Lybbe v. Hart, 29 Ch. D. 8 ; 54L. J., 51 L. J., Q. B. 472 ; 46 L. T. 670 ; 30 Ch. 860 ; 52 L. T. 634. S. 149 of the act AY. R. 866 ; Onslow v. Corric, 2 Mad. 330. of 1883 is similar to s. 119 of the act of (k) Allowmj V. Stcere, 10 Q. B. I). 22 ; 1869 in providing for the construction of 52 L. J., Q. B. 38; 47 L. T. 333; 31 acts making mention of a " commission in "W. R 290. bankruptcy." (Z) See sub-s. (d), infra. {p) Schofield v. Hincks, 58 L. J., Q. B. (?/i) See Harding v. Preece, 9 Q. B. D. 147 ; 60 L. T. 573 ; 37 W. R. 157. L.T. 19 290 Chap. VII. — Assignment, Bankkuptcy, Death, etc. Ch.VII. s. 11. Bankruptcy of Lessee {Rescission of Lease) . Rescission of Lease. Bankruptcy Act, 1883, s. .^,5 (5). Effect of the Acts before 1869. (c) Rescission of Lease. Sect. 55, sub-sect. 5, of the Bankruptcy Act, 1883, is as follows : — " The Court, may, on the application of any person who is as against the trustee, entitled to the benefit or subject to the burden of a contract made with the bankrupt, make an order rescinding the contract on such terms as to payment by or to either party of damages for the non-per- formance of the contract, or otherwise, as to the Court may seem equit- able, and any damages payable under the order to any such person may be proved by him as a debt under the bankruptcy." A lease would seem to be a " contract " within the meaning of this sub-section, (d) Disclaimer' of Lease hy Trustees in Bankruptcy. - By the Bankruptcy Act, 1869 (32 & 33 Vict. c. 71), all pre-existinn bankruptcy acts were repealed. Many of the earlier acts (g) contained special provisions in reference to the case of a bankrupt tenant, and the Act of 1869 contained special provisions for the same case, the material difference between the former acts and the Act of 1869 being, that, under the former acts, a lease involving obligations which might exceed in value the benefits to be derived from it did not vest in the bankrupt's assignees until they did some act manifesting their acceptance, whereas, under the Act of 1869, all leases whatever, together with the rest of the bankrupt's property, vested in the trustees until they did some act manifesting their disclaimer (r). The Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), which repeals and re-enacts with material amendments the Act of 1869, follows the same principle in respect to leases, and brings it out more fully by limiting a time within which a disclaimer is allowed to be operative. The many other amendments effected by the Act of 1883 are chiefly directed to safeguarding, mainly through the discretionary power of the Court of Bankruptc}', the interests of persons deriving title from the lessee. The subject-matter dealt with is an extremely complicated one, and the imperfect phraseology of the Act of 1869 had been sup- plemented by very numerous judicial decisions, occasionally almost Effect of s. 23 legislative in character. Shortly put, the effect of sects. 23 and 24 of Act of 1869. 0^- ti^g ^gt of 18(39 ^yjjs that the trustee in bankruptcy might, by writing, disclaim an onerous lease, and that upon the execution of such disclaimer, the lease should be deemed to have been surrendered on the date of the order of adjudication ; that any person interested in a disclaimed lease might apply to the Bankruptcy Court, which might order possession of the lease to be delivered up to him, or make such other order as to the possession as might be just ; that Act of 1883. {q) See, for instance, the acts of 1809, 1826, 1849, and 1861; 49 Geo. 3, c. ]-21, s. 19 ; 6 Geo. 4, c. 16, s. 75 ; 12 & 13 Vict, c. 106, s. 145 ; 24 & 25 Vict. c. 134, s. 131. (r) See Wilson v. JFallani, 5 Ex. D. 155 ; 49 L. J., Ex. 437 ; 42 L. T. 375 ; 28 W, U. 597. Sect. 11. — Bankruptcy of Lessee. 291 any person injured by the operation of the enactment should be Ch.VII. s. 11. deemed and might prove as a creditor of the bankrupt to the extent Bankruptcy of the injury; and (sect, 24) that the trustee should not be entitled {Disclaimer of to disclaim where for not less than twenty-eight days he had failed J^ease). upon application by any person interested to notify whether he dis- claimed or not. A bankruptcy rule of doubtful validity (s) (Rule 28 Rule under of 1871) prescribed further that a trustee might not disclaim without ^^^ °^ ^^^^' leave of the court. The main decisions (t) upon these sections amounted in effect to Decisions on this : — that disclaimer of a lease did not put an end to a sub-lease (u) : of iggg ° that it did not prevent the lessor from enforcing against a sub-lessee the remedies of distress and re-entry derived from the lease (x) : that if the bankrupt were assignee, the lessee remained liable on the covenants (y) : that part onl}' of a lease could not be disclaimed (z) : that all rights of the lessee under the lease, such as to remove fixtures, became lost to the trustee (a) ; and that the trustee, if neglecting or unable to disclaim, was personally liable on the covenants as from the date of his appointment (h). The 55th section of the Act of 1883 to a great extent follows the Effect of Act principle of the above decisions, but also materially amends the statute "f ^ggo' g". 13' law of the subject by limiting a time for disclaimer, by making special ^-"^ P'^^^l*^ ^^ provisions for safeguarding assignees, sub-lessees and others, and by enlarging the powers of the court in bankruptcy both to make general rules, and to make orders in particular cases. The 13th section of the Bankruptcy Act, 1890, extends the time for disclaimer from three months to twelve (giving power to the court still further to extend the time], and amends the special provisions as to safeguarding assignees, kc. Rule No. 69 of 1890, very much enlarging Rule 320 of 1886 by the requirement that a disclaimer must he filed and other- wise, enumerates the cases in which a lease may be disclaimed without the leave of the court, and prescribes that except as provided b}' the rule a disclaimer without leave shall be void. The combined effect of section 55 of the Act of 1883, of sect. 13 of the Act of 1890, and of Rule 69 of 1890, which are all printed in full in Appendix A., post, is shortly as follows : — Where a lease is onerous, or a contract for a lease is unprofitable, Disclaimer by the trustee may within twelve months of the first appointment of a (s) SeeifcccJv. Harvey, L. R., 5 Q. B. D. [y) Hill v. East and IVcst India Dock 184. Co.. 9 App. Gas. 448 ; 53 L. J., Ch. 842; (0 See Shilson, Ej: parte, 36 W. R. 187, 51 L. T. 163 ; 32 W. R. 925— H. L. and p. 295 (^•), infra. (c) Allen, Ex parte, Fiissell, In re, 20 (u) Smalley v. Hardinrjc, 7 Q. B. D. Ch. D. 341. 524 ; 50 L. J., Q. B. 365. (a) Ex parte Glegcj, Re Latham, 19 Ch. (.r) Ex parte Walton, Re Levy, 17 Ch. D. D. 7. 746 ; 50 L. J., Ch. 657 ; 45 L. T. 1 ; 30 {b) Titterton v. Cooper, infra, 295. AV. 1{. 395. 19—2 Leave. 292 Chap. VII. — Assignment, Bankeuptcy, Death, etc. Ch.VII. s. 11. Bankruptcy of Lessee [Disclaimer of Lease). AVithout Leave. Contract for Lease — Tenancy from Year to Year. Forms of Dis- claimer and notices, &c. trustee disclaim it, with leave of the court having jurisdiction in bankruptcy, or without such leave, if the bankrupt has not assigned, sub-let or mortgaged the lease, and if the rent and value be less than 20^., or if the estate is, as being not more than 300?. in value, being administered summarily, or if the "trustee serves the lessor with notice of his intention to disclaim, and the lessor does not within seven days after the receipt of such notice give notice to the trustee requiring the matter to be brought before the court " (c), or where the bankrupt has sub-let, or mortgaged the lease, and the trustee serves the lessor and the sub-lessee with notice of his intention to disclaim, and none of the parties so served within fourteen days after service requires the matter to be brought before the court. The disclaimer must be by writing signed b}' the trustee, and must be filed in the court. It will operate to discharge the trustee from personal liability, and to determine the rights and liabilities of the bankrupt, but not to afi^ect the rights and liabilities of any other person. An oral lease and a tenancy from year to year (f?), and indeed a tenancy for any period however short, seem to be equally within the sub-section under the words "unsaleable propert}'," and also a contract for a lease under the words " unprofitable contract " {e). No less than nine forms in connection with disclaimer are pre- scribed by the Bankruptcy Rules of 1886 and 1890, seven being new in 1890. Form No. 119a of "Notice of intention to disclaim lease," is as follows : — {Title.) Take notice tliat I intend to disclaim the [lease or tenancy as the case may he'] dated , whereby [here specify projjerty let] was let to the above-named debtor at a rent of /. ' If you recjuire the matter to be brought before the court, you must give notice to me in writing within seven days of the receipt by you of this notice. Dated this day of 189 . Trustee. Address To the Landlord of the above-mentioned property. Form No. 120e of " Notice by Landlord or other person requiring trustee to bring matter of intended disclaimer of property burdened with onerous covenants before the court " is as follows : — [Title.) To Mr. Trustee of the property of the above-named bankrupt. Sir, I hereby give you notice that the said bankrujjt was, at the date of the receiving order, interested as lessee for, as the case may be~\ in the property described in the schedule to this notice, and that as such lessee \_or, as the case may be] the bankrupt was (c) Rule 69 of tiie Rules of 1890, re- phuung, with additions, Rule 320 of the Rules of 1886, which was identical with Rule 232 of the Rules of 1884, post, App. A. [d) And see Robson on Bankruptcy, 6th ed., p. 451. It was assumed in Alloicay v. Steere, 10 Q. B. D. 22, and p. 289 (i), ante, that a tenancy from year to year could be disclaimed. (c) See Maughan, In re, 14 Q. B. D. 956 ; 2 Morrell, 25. Sect. 11. — Bankruptcy of Lessee. 293 liable in respect of [set out nature of the bankrupt's liability'], which liability has devolved Ch.YII. s. 11. on you as trustee in bankruptcy of his property, and I hereby require you to bring the ^ matter of your intended disclaimer of the bankrupt's interest in the said property before -o^i-nkruptcy the court. ,J!f^':'''^ , lam, &c., {Bischnmer of (Signed) A. B. -^"^"")- [ State how interested in the property. ] The schedule to the above Form is printed with the whole nine Forms at length in Appendix C, post. The provisions of sect. 55 are " provisions relating to the remedies Lease from against the property of a debtor " within the meaning of s. 150 of the Act (whereby such provisions bind the Crown) so that a lease to the bankrupt from the Crown may be disclaimed by the trustee (/). Tenanc}' under the attornment clause in a mortgage is within Mortgage. the section (tey Act, however, the lessee loses the benefit of the covenant of indemnity which the assignee would give him, and therefore has a right of proof against the bankrupt's estate. See Hardii v. Fothcrgill, 13 App. Cas. 351 ; 37 W. R.-177, and p. 271 (/), ante. (i) And will as a general rule be. See Britton, III re, 2,1 ^\ . R. 621. {k) Finley, In re, Clothxvorktrs Co., Ex yarte, 21 Q. B. D. 475 ; 57 L. J., Q. B. 626 ; 296 Chap. VII. — Assignment, Bankruptcy, Death, etc. Ch. yii. s. 11. Bankruptcy of Lessee [Disclaimer of Lease) . Proviso restricting Vesting Order in favour of Sub-lessee. Proviso restricting Vesting Order in favour of Sub-lessee. Modification of Proviso by Court. thereto : but the enactment is subject to the following restrictive proviso : — Provided always, that where the property disclaimed is of a leasehold nature, the court shall not make a vesting order in favour of any person claiming under the bankrupt, whether as under-lessee or as mortgagee by demise, except upon the terms of making such person subject to the same liabilities and obligations as the bankrupt was subject to under the lease in respect of the property at the date when the bankruptcy petition was filed, and any mortgagee or under-lessee declining to accept a vesting order upon such terms shall be excluded from all interest in and security upon the property, and if there shall be no person claiming under the bankrupt who is willing to accept an order upon such terms, the coiirt shall have power to vest the bankrupt's estate and interest in the property in any person liable either personally or in a representative character, and either alone or jointly with the bankrupt to perform the lessee's covenants in such lease, freed and discharged from all estates, incumbrances, and interests created therein by the bankrupt. A mortgagee by demise, therefore, by taking a vesting order will incur the very liability — that of the covenants in the lease — which the substitution of a mortgage by demise for a mortgage by assign- ment was intended to free him from. By s. 13 however of the Bankruptcy Act, 1890, 53 A: 54 Vict. c. 71, "the Court" [of Bankruptc}'] "may if it thinks fit, modify the terms prescribed " by the above proviso "so as to make the person in whose favour the vesting order may be made subject only to the same liabilities and obligations as if the lease had been assigned to him when the bankruptcy petition was filed and [if the case so requires] as if the lease had comprised only the property comprised in the vesting order." The general intention of the legislature was to interfere as little as possible with the rights of the lessor and third persons, to relieve the estate by giving the lessor a right of proof, and to relieve the trustee from personal liability ; and although the legislature has not expressly empowered the court to graduate the terms of the vesting order to meet each case, it has in efi'ect done so by enabling the court to adopt sect. 13 of the Act of 1890 if the landlord will not do what is right and reasonable. So it was observed b}' Vaughan Williams, J., in Walker, in re, Mills, ex 'parte (l), in which a term was vested by order in mortgagees of a lease by sub-demise upon the mortgagees jierforming all covenants, but the landlord becoming bound to accept a surrender upon six months' notice. 60 L. T. 134 ; 37 W. R. 6— C. A. ; Shil- son, Ex parte, Cock, In re, 20 Q. B. D. 343 ; 57 L. J., Q. B. ltJ9 ; 36 W. R. 187 ; 58 L. T. 586 ; per Cave and A. L. Smith, JJ., getting rid of the doubts of Cave, J., in Bai'kcr, In re, Turquand, Ex parte, 14 Q. B. D. 405. [1) Walker, In re. Mills, Ex jMrte, 64 L. J.. Q. B. 783 ; 72 L. T. 330 ; 2 Man- son, 60, 319 ; 15 R. 350, per Yaughau Williams, J. I Sect. 11. — Bankruptcy of Lessee. 297 All persons named in the sub-section have a right to compete in Ch. VII. s. li. claiming the order, and the person who makes the first apiilication Banla-uptc-y . . „ . . of Lesaee must submit himself to the discretion of the registrar m bankruptcy, (Disclaimer). and run the risk that the registrar may think that other persons Parties to should have notice of the api^lication {m) . application ^ ^. . . . lor \ estiiig A mortgagee by sub-demise assigning his moj'tgage to a trustee Order. for himself is still liable to have a vesting order made against him, the assignment in trust being as between the mortgagee and the landlord, absolutely void (w). Section 55 closes with a provision that any person injured by the Pioof. disclaimer may prove his injury as a debt. (e) Distress for Roit. The early bankruptcy acts left the landlord's common law remedy History. by distress whole and intact, and goods in the custod}^ of a messenger in bankruptcy were more than 100 years ago held (o) not to be in the custod}' of the law so as to be exemj^t from distress under the head of exemptions (jj). A mere limitation of the distress to one year's rent, first imposed in 1826 by 6 Geo. 4, c. 16, s. 74, and repeated in 1849 by 12 & 13 Vict. c. 106, s. 129, was continued by the Acts of 1869 and 1883 in terms which first affirm the common law right of distress, and then limit the extent to which the proceeds of a distress may be available, an amending act of 1890 cutting down this limit from twelve months' arrears of rent to six. The 42nd section of the Act of 1883 repeats exactly sect. 34 of the Act of 1869. As amended by s. 28 of the Act of 1890, it is as follows : — (1) The landlord or other person to whom any rent is due from the Distress for bankrupt may at any time, either before or after the commencement of ^ix Months the bankruptcy, distrain upon the goods or effects of the bankrupt for . . ^ , ooo the rent due to him from the bankrupt, with this limitation, that if such g 4-2. x^.^ of distress for rent be levied after the commencement of the bankruptcy, it 1890, s. 28. shall be available only for six months' rent (q) accrued due prior to the date of the order of adjudication, but the landlord or other person to whom the rent may be due from the bankrupt may prove under the bankruptcy Proof for for the surplus due for which the distress may not have been available. Surplus. (2) For the purposes of this section the term "order of adjudication" shall be deemed to include an order (r) for the administration of the estate of a debtor whose debts do not exceed 501., or of a deceased person who dies insolvent. (»n.) Morgan, In re, 22 Q. B. D. 592 ; 58 1890, 53 & 54 Vict. c. 71, it is enacted L. J., Q. B. 295 ; 60 L. T. 941 ; 37 W. R. that :— •344— C. A., where see form of oi'der. Section forty-two of the principal act, (n) Hepburn, Ex parte, Smith, In re, 38 relating to the power of a landlord to dis- W. R. 744. train for rent, shall be read and construed (o) Phtmmer, Ex parte, 1 Atk. 103, per as if the words "six months' rent" were Lord Hardwicke. substituted for the words • ' one year's rent." {jj) See post. Chap. XI. (r) In Bankruptcy only ; an order in the {q) By s. 28 of the Bankruptcy Act, Chancery Division for administration does 298 Chap. VII. — Assignment, Bankruptcy, Death, etc. Ch.VII.s. 11. Bdnkruptcij of Leu nee [Distress for Bent). A "Landlord or other Person." Administra- tion Order. AVhethcr Dis- tress barred by Proof. Kight of Distress paramount. It will be observed that these words not only do not prohibit a distress by the landlord, but expressly allow it, and the result would seem to be that a distress for more than six months' arrears is not made by them illegal or excessive, but that they have the effect of making the landlord a trustee for the trustee in bankruptc}' for the surplus proceeds of any such distress. The words " landlord or other person " apply to a person who is made landlord by an attornment clause in a mortgage deed (.s), unless, the rent be a sham rent agreed on for the purpose of evading the law of bankruptcy [t), but not to a gas company in respect of gas rent (?f), unless it have special statutory powers, e.g., to recover the gas rent " by the same process as landlords are b}" law enapowered to recover rent in arrear " {x). The section has no application to the case where the estate of a deceased tenant is being administered as insolvent in the Chancery Division of the High Court, but only to the case where such estate is being administered in bankruptcy under sect. 125 of the Bank- ruptcy Act, 1883, or where the estate of a living debtor whose debts do not exceed 50/. is being administered under sect. 122 of that act. If the estate be in the course of administration otherwise than under the Bankruptcy Act, the landlord may distrain for six years' arrears iy). There appears to be some authority for saying that a landlord, if he choose to prove for the six months' rent for which he might have distrained, loses the right of distress for such rent {z) ; and it seems, at any rate, that he cannot prove and distrain for the same amount of rent. Distress is not such a " legal process " as can be restrained by the court under sect. 10, sub-sect. 2, of the Bankruptcy Act, 1883 (a), and it can be fully proceeded with, notwithstanding that a receiver is in possession of the bankrupt's property (6). not limit the power of the landlord to a recovery of six niontlis' rent only : Fry- man's Estate, In re, 38 Ch. D. 468 ; 57 L. J., Ch. 862 ; 58 L. T. 872 ; 36 W. R. 631. (s) Jackson, Ex parte, Bmces, In re, 14 Ch. D. 725. See also Williams, Ex parte, 7 Ch. D, 138 ; Stockton Iron Fur- nace Co., In re, 10 Ch. D. 335 ; Voisey, Ex parte. Knight. In re, 21 Ch. 442 ; 52 L. J., Ch. 121 ; 47 L. T. 362 ; 31 W. R. 19 ; but as to neee.ssity of rej^isterincr an attornment clause, see Chap. VI., Sect. 5, ante. {t) See Voisey, Ex ^mrte, ubi supra. (m) Hill, Ex parte, Roberts, In re, 6 Ch. D. 63 ; 46 L. J., Bank. 116 ; 37 L. T. 46 ; 25 W. K. 784. (x) Birviinghum Gaslight Co., Ex jiarte, L. R., 11 Eip 615 ; 40 L. J., Bank. 52 ; 24 L. T. 639 ; 19 W. R. 603. [y) Fri/man's Estate, In re. 38 Ch. D. 468 ; 57 L. J., Ch. 862 ; 58 L.' T. 872 ; 36 W. R. 631 ; per Chitty, J. (:;) Grove, Ex jmrlc, 1 Atk. 105, per Lord Hardwicke, in 1739. See Robson, p. 303, where it is said that the landlord "must make his election to waive eitlier his proof or distress." But in Ex parte Grove, the rights of a vendee canie in question, and in Ex parte Devinc, Cooke, B. L. 201, it was said l)y Lord Batliurst, that tlial was the ground of decision. On princiide, it is submitted that this question ought to be determined in favour of the landlord. ((/) Ex parte Birmingham Gaslight Co., L. R., 11 Eq. 615 ; 46 L. J., Bank. 52. {b) Ex parte Till, In re Mayhew, L. R., 16Eq. 97 ; 42 L. J., Bank. 84; 21 W. P. 574. Sect. 11. — Bankruptcy of Lessee. 29D If the goods be sold b}- the trustees and removed from the Ch. VII.s. ii. premises before the landlord has distrained upon them, he has no Banhruptcy right to follow them for the purpose of distress, but loses his {mstresa) . preferential right altogether (c). Landloi-a If the goods distrained be left unsold, and found in the order and ™^y ^^'^ ••r-iii PTiT follow the disposition ot the bankrupt at the commencement oi the bankruptc}', Goods. they will pass to the trustee b}' the order and disposition clause of Benefit of the Bankruptcy Act {d). byleaJing^*^ The limitation, that distress is applicable to six months' rent only, Goods with jDrotects the goods of the bankrupt only, and not the goods of a rp, -.i p '^.l third party which may be on the premises of the bankrupt. This not protected follows from the veiy Avords of the section, which limit only " such ^^^^iou ^^^' distress," i.e., distress on the goods of the bankrupt, and from the case in which it was held that property which the bankrupt tenant had mortgaged was liable to distress in full {e). The landlord's right to distrain for rent accruing due after the Distress Un- order of adjudication is quite unaffected : for such rent (though Adjudication. payable in advance), if the trustee do not disclaim the lease, or if the trustee continue in possession, the landlord may distrain in full (/), otherwise, as was observed by Bacon, C.J., a trustee in bankruptcy might make use of a man's propert}^ without paying any rent for it, and snap his fingers at him. For the rent due for not more than six months between any day of payment and the day of commencement of bankruptcy the landlord may distrain not only by virtue of the Bankruptcy Act, but by virtue of the Apportionment Act {g). Payment b^^ a tenant, after an act of bankruptcy, of rent to avoid Payments to .,.,,,, ., ,. avoid Distress a distress is valid (/i), and a person who paid out a distress has been valid. held entitled to be recouped in full out of the bankrupt's estate before the creditors received any dividend {[). A landlord of a farm cannot, by entering into an agreement with Agreement ,.. ,. p j_ ^ ■ with landlord his tenant after bankruptcy not to distrain on the terms oi taking of f^pni to over the dead stock at a valuation (though the agreement is beneficial \'^'^^. ^t°^J^ "_ " m lieu 01 to the estate), obtain a larger amount for arrears of rent than the Rent. six months' rent allowed by the Bankruptcy Acts as above stated (A). Where a landlord had, on an assignment of the lease, assented to Effect of Non- • 1 T ,> • 1 T ii i J. J payment ot a a readjustment m the mode ot paying the rent, and the tenant made RtTduced (c) Bradyll v. Bale, 1 Bro. C. C. 427. ('/) Howell, In re, Mandleherg, Ex parte, Id) Ex parte SJtuttleworth, lie Deaite, 1 [1895] 1 Q. B. 844 ; 64 L. J., Q. B. 454 ; D. & C. 223. 72 L. T. 472 ; 43 W. E. 447. (e) Brocklehitrst v. Lawe, 7 E. & B. 176 ; (A) Stevoison v. Wood, 5 Esp. 200. 26 L. J., Q. B. 107, agreed with, and its [i) Ex parte Kennard, 21 L. T. 684. principle explained, in liailton v. JVood, The payment was at the request of certain 15 App. Cas. 363 — P. C. creditors. {/) Hale, Ex parte, Bimis, In re, ICli.D. (k) Griffith, In re, Official Receiver, 285 ; 45 L. J., Bank. 21 ; 33 L. T, 706 ; Ex parte, 66 L. J., Q. B. 763 ; 4 Mansou, 24 W. R. 300. 217. Rent. 300 Chap. YII. — Assignment, Bankruptcy, Death, etc. Ch.YII. s. 11. default in payment at the reduced rate, and afterwards became Bankricptcij bankrupt, when the landlord distrained for the full rent, the court of Lessee {^Distress for held that the tenant's trustee in bankruptc}" could not recover from ^^^*^- the landlord the difference between the full and reduced rent, the landlord's rights having revived on non-performance by the tenant of the terms of the agreement (/). Preferential By sub-sect. 4 of sect. 1 of the Preferential Payments in Bank- Kato*^Taxes Tuptcy Act, 1888, 51 & 52 Vict. c. 62, it is provided that : — Wages, &c. jj-^ ^|jg event of a landlord or other person distraining or having dis- trained on any goods or effects of a bankrupt or a company being wound up within three months next before the date of the receiving order or the winding up order respectively, the debts to which priority is given by this section {in) shall be a first charge on tlie goods or effects so distrained on, or the pro- ceeds of the sale thereof. Provided, that in respect of any money paid xnider any such charge the landlord or other person shall have the same rights of priority as the person to whom such payment is made. See this section discussed, post, Chap. XI., Sect. 16. (f) Proof for Rent, cC'C. Proof for Rent By Bule 19 of the second schedule of the Bankruptcy Act, 1883, Perio'l'^''" re-enacting sect. 35 of the Act of 1869, " when any rent falls due at stated iJeriods, and the receiving order is made at any time other than one of those periods, the person entitled to the rent may prove for a proportionate part thereof up to the date of the order as if the rent grew' due from da}' to day." Proof for Rent We have alread}'^ seen that a landlord nmy distrain for six months' Di&tress*'^" ^ ^^"^ only, but may prove under the bankruptcy for the surplus due for which the distress may not have been available (n), and discussed the question how far the distress is barred by proof (o). Proof for As to proof for injury by disclaimer it is jDrovided by sub-sect. 7 DiiclainKi-. ^^ s<-'ct. 55 of the Bankruptcy Act, 1883, that : — " An}' person injured by the operation of a disclaimer under this section shall be deemed to be a creditor of the bankrupt to the extent of the injur}', and may accordingly prove the same as a debt against the bankruptcy." This sub-section re-enacts part of sect. 23 of the Act of 1869. A lessor suffering by the disclaimer of a lease of partnership premises, may, as was held under that section, prove against the separate estate of each partner for the injury Q;), and, as was also held, if (I) Smith and Hartogg, In re. Official exceeding 50/. ; and wages of anj' labourer, Jtcceivcr, Ex jmrlc, 73 L. T. 221 ; 44 not exceeding 25/., for services for two "\V. R. 79 ; 2 Manson, 400 ; 15 1\. 641, monibs before receiving order, per Yaughan Williams, J. (h) Ante, 297. (7/i) Sliortly, the debts are twelve (o) Ante, 298. months' rates and taxes ; wages or salary (^j) Ez imrtc Corhetl, Re Shand, 14 of any clerk or servant for services for Ch. D. 122 ; 49 L. J., Bank. 74 ; 42 L. T. four months before receiving order, not 164 ; 28 W. R. 569 — C. A. Sect. 11. — Bankruptcy of Lessee, 301 disclaimed premises, let for a term, can only be re-let at a reduced Ch.YII.s. ii. rent, the landlord is entitled to prove for the difference between the present worth of the agreed rent for the term, or for the period at Avhich it may be by option determinable {q), and the present worth of the letting value for the same period (r). Arrears of rent may be set off by the landlord against a claim by trustees in bankruptcy as outgoing tenants for growing crops, &c., by the custom of the county of Norfolk (s), and also by virtue of the Apportionment Act, 1870 (t). Bankrujjtcy of Lessee {Proof for Rent). Set-off of Rent against Teuant-RiKht. Sect. 12. — Marriage. (a) Of Female Lessor (u). The law- of this subject has been revolutionised by the Married Women's Property Act, the effect of which has been already given, (ante, Chai). I., Sect. 23), and it is only necessary here shortly to state the effect of the law before that act. At common law a husband took a freehold interest during the coverture in such of his wife's freeholds of inheritance as were not put into settlement before the marriage, and he might dispose of such freehold interest by deed without her concurrence (x). Tenancy by the curtesy, however, appears to have survived the jNIarried Women's Property Act, and if the husband have issue by his wife born alive, who might by possibility have inherited, he will still become tenant by the curtesy for his life of her freeholds of inheritance (including estates tail) (i/). But such title is only initiate during her life, and will not merge any term of years to which he may be entitled in his own right (z). Unless he becomes tenant b}' the curtesy he cannot distrain or sue for rent of the wife's freeholds which accrues after her death under a demise made by his wife and himself, or by him on her behalf (a). If, however, the lease was made by him in his own name only, the tenant would be thereby estopped from den34ng his title to the subsequent rent during the continuance of the tenancy (a). Arrears of rent and other debts due to a female lessor before her marriage, and breaches of covenant, trespasses, &c., before then (q) Ex jmrte Blake, Re McEwan, 11 Ch. D. 572 ; 40 L. T. 859 ; 27 W. R. 901— C. A. (?•) Ex 2}ct>'te Llynvi Coal and Iron Co., Re Hide, L. R., 7 Ch. 28 ; 41 L. J., Bank. 5 ; 25 L. T. 609 ; 20 A\'. R. 105. See also Nciv Oriental Bank Corporation, In re, [1895] 1 Ch. 753 ; 64 L. J., Ch. 4-39 ; 72 L. T. 419 ; 43 W. R. 523 ; 2 Manson, 301. (s) Wilson, In re, Lord Hastings, Ex parte, 62 L. J., Q. B. 628 ; 10 M. B. R. 219. {t) lb. {u) And see ante. 45. [x) Robertson v. Norris, 11 Q. B. 916. ly) Co. Lit. 29 a— 30 b ; Burton, Comp. ss. 348 — 355. [z) Jones V. Davies, 5 H. & N. 766 ; 29 L. J., Ex. 378; 31 Id. 116. (a) Hill V. Saamlcrs, 2 Bing. 112 ; S. C. (in error), 4 B. & C. 529 ; Hoivey. Srarrott, and Sharp v. Scarrott, 5 H. & N. 723 ; 28 L. J., Ex. 325. Interest of Husband in "Wife's Free- holds. Tenancy by the cunesj'. Arrears of Rent and Breaches of Covenant before the Marriage. 302 Chap. VIL — Assignment, Bankruptcy, Death, etc. Ch. VII. 8.12. Marriage {Of Female Lessor). Leases at Will. committed, were at common law chases in action, which could onl^' be sued for b}^ the husband and wife jointh', and not b}^ the husband alone {h) ; nor by the wife alone (c). At common law if a feme sole made a lease at will, or was lessee at will, and afterwards married, the marriage was no determination of her will, so as to make the lease void ; nor could she herself, without the consent of her husband, determine the lease in either case {d) ; but the Married Women's Property Act would seem to give this right. Where the husband and wife made a lease for 3'ears by indenture of the wife's lands, reserving rent, and, the lessee having entered, the husband before any day of payment died ; upon which the wife took a second husband, and he at the day accepted the rent and died : it was held, that the wife could not avoid the lease ; for that by lier second marriage she had transferred the power of avoid- ing it to her husband, and his acceptance of the rent had bound her, as her own before such marriage would have done ; for he, b}-- the marriage, succeeded into the power and place of his wife, and what she might have done, either as to affirming or avoiding the lease before marriage, the husband might iio after the marriage {e). (b) Of Female Lessee. Elfect of ...^iix^Aii,- Marriiifre on ^ / i ■ ^ the Leasehold I'^al (not put into settlement) Marriage was a gift in law to the husband of all the wife's chattels as a term for years in right of his Interest ol the ^vife ; of which he alone might dispose, or forfeit, or they may be extended for his debts (/). If he sublet any of them in his own name onlj^, the rent belonged to his executors or administrators, and not to the wife as survivor (cath {of should be burnt down before an executor could have possibl}^ ascer- tained whether an insurance for which the testator had covenanted was still in force) ; and though the danger foreseen by Tindal, C.J., in Tremeere v. Morison (h), viz., that the landlord would have no redress though the property went on deteriorating, can rarely arise in practice, as almost all leases have a proviso for re-entr}^ in case of breach of covenants. The question of personal liability upon covenants other than the No Personal covenant to pay rent (e), upon which latter covenant the liability of ^-•'ti^out'^gntr - the executor, though personal, is beyond doubt limited, had not come jiauMl v. before the courts for many years when, in 1892, it was raised in ^'''•'drem. Rcndall v. Andrece {d). In that case the lease was a repairing lease at a rent of 100/. a year terminating in 1893. The lessee died in September, 1889, and his widow continued in occupation until Christmas, 1889, tlie rent, and also the rates and taxes, in respect of that occupation being paid by the executors of the lessee, but five quarters' rent due during the lifetime of the lessee remaining unpaid. The executors (who had no assets), being sued for the arrears of rent, and also for breach of covenant to repair, the action was tried before Smith, J., without a jury. The judgment was for the defendants on both claims, on the ground that they had not entered, and therefore were not liable. " Before entr}^ and taking possession," said the learned Judge, " the executor of a lessee cannot be made liable as assignee of the term, but if he does enter and take possession, he may be made liable, as assignee ; yet he may then by proper pleading limit his liabilit}' for rent to the yearly value the premises might have yielded, though it would seem that he cannot so limit his liability in respect of breach of covenant to repair. See Tremeere v. Morison." The law, therefore, is now more than ever clear, so far as authoritij Personal [loes, as to the personal liability of an executor, having entered, repairing though he may have no assets, on the repairing covenant. There is covenant, irom approving the principle ; Tilncy v. trix, but the distinction (which, it is sub- Norris, 1 Ld. Ray. 553 ; but see the dictum mitted, has no legal value) was not noticed, of Bayiey, B., in Rcid v. Lord I'enlerdcn, Both cases were decided on demurrer. 4 Tyr. Ill (cited in Slea2} v. Neivman, but {b) See further the notes to Dean and not in Tremeere v. Morison), that an offer Chai^ter of Bristol v. Guysc, 1 Wms. to surrender the lease will "help" the Saund. 124 (ed. 1871), and Jcvens v. e.xecutor as to breaches after the offer ; also Harridge, Id. I. The distinction between the dictum of Macdonald, C. B., in Wil- the liability for rent and that for non- Jcitison V. Caivood, 3 Ans. at p. 909. repair appears to have been first clearly In Tremeere v. Morison the action was laid down in Tremeere v. Morixon. against an administrator, and the court (c) See Bmves, In re, supra, note (u). abstained from saying whether the same (d) Rendall v. Andrece, 61 L. J., Q. B. law would apply to an executor. In Sleaj} 630. See Law Journal Newspaper for V. Newman the action was against an exccit- Dec. 31st, 1892. 20—2 308 Chap. YII. — Assignment, Bankruptcy, Death, etc. Ch.VII. s. 13. Death {of Lessee) . Calculation of Value. Continuing Liability of Executors. AVhether "entry " necessary to Liability. a faint trace of an equity to relieve an executor from legal demands in a case of hardship (e) ; but it is submitted that such an equity is not sufficiently so established as to have been a conflict between law and equity before the Judicature Act, and that looking especially to the remedy provided bj' the Law of Property Amendment Act, 1859, 22 & 23 Vict. c. 85, insufficient though it is, the court would prefer that of the two innocent parties, the landlord and the executor, the loss should be borne by the executor, and that the Legislature alone can supply a remedy. It is submitted, further, that whether Tremeere v. Morison be right or wrong, it has now been publicly accepted as law too long for even a Court of Appeal to overrule it (/). But from an emphatic note in Lord Wensleydale's copy of 1 B. N. C, at p. 89, where Tremeere v. Morison is reported, it appears that both Lord Wensleydale and the late Vaughan Williams, J., were strongly of opinion that Tremeere v. Morison was wrongly decided, and that the late Vaughan Williams, J., when at the bar, had advised an appeal against the judgment. If issue be taken on the value of the premises the question will be whether they were of any annual value (r/), or of any value beyond the sura excepted out of the defence and paid into court or otherwise pleaded to. In estimating such value the jury must calculate according to the actual animal value of the premises, supposing them to be kept in proper repair according to the covenants in the lease, and without deducting any loss occasioned by the insolvency of an under-tenant, or the non- payment of the rent by him (/t). An executor or administrator cannot be sued as assignee of the term where the testator or intestate has assigned it : nor for causes of action which accrue after the executor or administrator has himself assigned it over : but (except so far as protected by the Law of Property Amendment Act, 1859, 22 & 23 Yict. c. 35, s. 27) he will continue liable as executor or administrator in respect of any other assets, notwithstanding any such assignment (i). Whether "entry" by the executor is a condition precedent to liability, is a point on which some doubt has been thrown {k) ; but the preponder- ance of authority is strongly in favour of entry being necessary (/), (e) See Story, vol. i., p. 96 ; Lculy Croft'.'> Executors, 2 Freeman, 1 — a ease arising out of the destruction of liouses by the great fire in London. {/) See as to the practice of following cases whether right or wrong, Kelly v. Rogers, [1892] 1 Q. B. 910— C. A. ; Bccrw Foakes, 9 App. Cas. 605. (g) Ruhery v. Stevens, 4 B. & Ad. 241 ; 1 N. & M. 183. (/i) Hornidgc v. Wilson, 11 A. & E. 645 ; liichery v. Stevens, supra ; Beid v. Ld. Tentcrden, 4 Tyr. 111. (i) Hcllie.r v. Casbard, 1 Lev. 127 ; 1 Sid. 266 ; Coghil v. Frcclovc, 3 Mod. 325 ; Wilson v. Wigg, 10 East, 315 ; Hoicse V. Webster, Yelv. 103. (k) Sec Williams V. Bosanquet, 1 B. & B. 238 ; 21 R. R. 585. [l) Jiciuiall \ Aiulrecc, 61 L. J., Q. B. 630 ; Atkim v. Humphrey, 2 C. B. 654 ; 2 D. & L. 612 ; Kearsley v. Oxlcy, 2 H. & C. 196 ; and see Solicitors' Journal for June 18th and 25th, 1892. Sect. 13. — Death (of Lessee). 309 If entiy be necessary, the mere receipt of rent, or any other act of Ch.VII. s. 13. ownership amounting to constructive entry, woukl l)e sufficient, '^[f^^Jf witliout actual entry. When an executor takes leasehold property nothing is assets but Ouly Profits ■n ^ 1 1 1 T 1 r.1 ^^^ ASSetS. the profits above the rent : as, ii the land be worth 10/. per annum, and 51. is reserved, in that case nothing is assets but the 51. above the rent {m). The profits of the land may be inadequate to the rent : in a variety of cases they may be easily supposed insuffi- cient for a given period, although the lease may on the whole be beneficial ; as, for instance, where rent is claimed for the occupation of premises from Michaelmas to Lady-day, where almost the whole profit is taken in the summer : so the profits for a series of years may be less than the amount of the rent, although the lease for the whole term may be of no small value, — as in the case of a lease of woods, which are fellable only once in eight or nine years, and the felling has been very recent («)• In these and the like instances, the executor is personally liable onl}' to the extent of the profits ; and for such l)roportion of the rent as shall exceed the profits, he is charge- able merely in the capacity of executor, or, in other words, as far only as he has assets, provided he pleads the whole matter specially and accurately (o). The profits of the land are to be applied by the executor, in the first place, to the discharge of the rent, and if that fund prove insufficient, the residue of the rent is payable out of the general assets, and this whether the rent be reserved by lease in writing or by parol. In Fry v. Fry a lessee was bound to insure. The insurance Insiuauce. expired on the 25th March. He died on 27th March, without having paid the premium. The house was burnt down on the 26th May, his executors (who did not prove till the 17th June) not having paid the premium. It was held, that they were not personally liable to the residuary legatees for neglect in not having kept up the insurance (j)). An administrator of a lessor has been held obliged to contribute as Party-walls. owner towards the rebuilding of a party-wall under the old Building Act, though not otherwise owner than as administrator, and though he had no assets to meet the expenses (q). The hardship of the common law upon executors has been some- How Execu- what modified by the Law of Property Amendment Act, 1859, SoJp^eilonal (??i.) Hargravc's case, 5 Co. R. 31 b, cited 183 ; Hornidge v. Wilson, 11 A. & E. Liability. iu ILubery v. Stevens, 4 B. & Ad. at 645 ; Hopivood v. Whalcy, 6 C. B. 774 ; 22 & 23 Vict. p. 245. 6 D. & L. 348 ; Cullins v. Crouch, 13 c. 35, s. 27. (n) See last note. Q. B. D. 542. (0) Buckley v. Firk, 1 Salk. 317 ; Bil- {p) Fry v. Fry, 27 Beav. 146 ; 28 L. J., linghurst v. Spearman, 1 Salk. 297 ; Ch. 93. Rubery v. Stevens, 4 B. & Ad. 241 ; 1 X. &M. {q) Thacker v. Wilson, 3 A, & E. 142. 310 Chap. YII. — Assignment, Bankruptcy, Death, etc. Ch.VIT. s. 13. 22 & 23 Vict. c. 35, which enables an executor, having suffi^cient assets and taking advantage of the act, to rid himself completely of his personal liability under any lease or agreement for a lease. The 27th section of this act (r) is as follows : — Death (of Lessee). Law of Pro- ])crty Amend- ment Act, 1859, s. 27. Setting apart, by executor, of funds to meet liabili- ties on lease. Kight of Lessor to follow Assets. Where an executor or administrator, liable as such to the rents, covenants or agreements contained in any lease or agreement for a lease granted or assigned to the testator or intestate whose estate is being administered, shall have satisfied all such liabilities under the said lease or agreement for a lease as may have accrued due and been claimed up to the time of the assignment hereafter mentioned, and shall have set apart a sufficient fund to answer any future claim that may be made in respect of any fixed and ascertained sum covenanted or agreed by the lessee to be laid out on the property demised, or agreed to be demised, although the period for laying out the same may not have arrived, and shall have assigned the lease, or agreement for a lease, to a purchaser thereof, he shall be at liberty to distribute the residuary personal estate of the deceased to and amongst the parties entitled tliereto respectively, without appropriating any part, or any further part (as the case may be), of the personal estate of the deceased to meet any future liability under the said lease or agreement for a lease; and the executor or administrator so distributing the residuary estate shall not, after having assigned the said lease or agreement for a lease and liaving, where necessary, set apart such sufficient fund as aforesaid, be personally liable in respect of any sub- sequent claim under the said lease or agreement for a lease. The section goes on to provide, that " nothing herein contained shall prejudice the right of the lessor, or those claiming under him, to follow the assets of the deceased into the hands of the person or persons to or amongst whom the said assets maj' have been dis- tributed." Ijeases nnide before the act are within this section (s), and so are lesises assigned to the testator or intestate (t), but a lease assigned to a residuary legatee is not (.s). It is not clear whether an executor should set apart a fund to meet a contingent liability under a lease, which he knows of, but as to which no notice has been given him, or claim made ; perhaps he may do so for his own indemnity, but the landlord has no right to bring an action to compel him to do so {u). By sect. 28, the executor has the like power of getting rid of per- sonal liability under conveyances on chief rent or rent-charges, and agreements for such conveyances. By sect. 29, executors or administrators may advertise for creditors and others to send in their claims against the estate of the testator or intestate, and at the expiration of the time named in the advertisements for sending in claims, may distribute the (r) As to the practice in equity before the Act, sec Fletcher v. Stevenson, 3 Hare, 360. (5) Dodson V. Sammell, 1 Drew, k Sni. 575 ; 30 L. J., Ch. 799 ; Smith v. Smith, 1 Drew. & Sm. 384. {t) In re Green, 2 De Gex, F. k J. 121. («) King v. Walcott, 9 Hare, 692. Sect. 13. — Death (of Lessee). 311 assets of the testator or intestate amongst the parties entitled Ch.VII. s. 1.3. thereto. JDeath (of A lessor is not entitled, in respect of a breach of covenant in ^««^^> a lease, to follow the assets of a deceased lessee, which had been ^o^io^^i"g ' _ ' Assets of placed in settlement upon the marriage of the lessee's daughter, there deceased being no imputation as to the honest}^ with which the assets have been dealt with {x). Actions for use and occupation by and against executors and Use and administrators will be treated of hereafter (?/). Occupation. (x) Dilkei V. Bruadmead, 2 Gitf. 113; {y) Chap. XV. 29 L. J., Ch. 310; 30 Id. 268. ( 312 ) CHAPTER VIII. DETERMINATION OF THE TENANCY. Sect. page 1. The Modes of Termiuation 312 2. When the Term is limited con- ditionally 313 3. Surrender 313 (a) By Express Terms 313 (b) By Operation of Law 316 (c) Effect of Surrender 323 (d) By whom and to whom made... 325 4. Merger 326 5. Forfeiture 328 (a) How incurred generally 328 (b) Construction of Proviso for Re-entry 330 (c) Who may avail themselves of a Forfeiture 335 (d) Entry of Lessor 337 (e) Forfeiture for Non-payment of Rent .' 337 (f) Waiver of Forfeiture 341 Sect. page 6. Relief against Forfeiture 346 (a) Before Conveyancing Act ... 346 (b) Under Conveyancing Act ... 348 (c) For Non-payment of Rent ... 356 7. Notice to Quit 357 (a) Nature and Operation of 357 (b) When necessary 359 Under Agricultural Hold- ings Act 360 (c) When unnecessary 364 (d) By whom and to whom given 367 (e) Form and Service of 370 (f) Waiver of Notice 382 8. Exercise of Option to determine Lease 384 9. Disclaimer 387 10. Death 390 In what ways a Lease may be determined. By ?>ffluxion of Time. Sect. 1. — TJte Modes of Termination. A TENANCY ma}' be determined in various ways, viz. : — 1. By effluxion of time, on the expiration of the term granted. 2. By the happening of some event upon which the term is limited conditionally. 3. By a surrender. 4. By merger. 5. By forfeiture and re-entry or ejectment pursuant to some proviso or condition in the lease, for breach of covenant, kc. 6. By a notice to quit, where the tenancy is from year to year, or for other like period (greater or less) deter- minable b}' notice. 7. By a notice to determine the term at the end of the first seven or fourteen years thereof, or at some other specified period, pursuant to a power in the lease. 8. By a disclaimer of the reversioner's title, where the tenancy is onl}- from year to year, or other less period, and not for a term of years. 9. By death of the party during the continuance of whose life the contract of tenanc}' is made. When the term of years granted by a lease expires by effluxion of time, the lessee or his assigns ought thereupon to quit possession {a). (a) For the consequences of " Holding Over," see Chap. XX., Sect. 2, jiost. Sect. 2. — When the Term is limited conditionally. 313 Sect. 2. — IJlieji the Term is limited conditionally. Sometimes the terra itself is limited conditionally, ex. gr. for forty j^ears if the lessee, or some other person or persons therein named, shall so long live. In such case the term will determine at the end of the forty years, or on the death of the person or persons named, which shall first happen (b). Where a certain term of years is granted provided the lessee shall so long continue to occupy the premises personally', it will cease whenever he parts with the possession, even by comjjulsion of law, as by his becoming bankrupt (c). It was held in an old case that a lease for twentj'-one years, if the lessee continue so long in the service of the lessor, Avas not determined by the death of the lessor (d) ; and in another old case, that if a lease of a house was made to a widow for forty years, sub conditione quod si tamdiu vixerit sola et inhabitaverit, the term passed to her executor upon her death unmarried within the term (e) : but these rulings seem hardl}^ to be correct, the first because the contract of service terminates with the death of the master, and the second because the meaning of the parties appears to have been that the lease should be for the life of the widow. Where a testator appointed the defendant to be his agent, "to live rent free in my house as long as he continues agent, that is, as long as he does the business honestl}' and to the satisfaction of the trustees," it was held that the direction of the testator was only a recommendation to the trustees to continue the defendant as agent, and that they might eject him from the house, unless the defendant could j)rove the dismissal to be malicious (/). Upon the breach of any condition the lessor or his assigns may re-enter or maintain an ejectment, without any express proviso for re-entry (f/). A proviso in a lease with no penalty annexed is a condition : but if a penalty is annexed it is a covenant (/?). Ch. VIII. s. 2. When Term is limited con- ditionally. Conditional Limitations and Condi- tions. Devise of House Rent free, during good Be- haviour. Re-entry on Breach of Condition. Sect. 3. — Surrender. (a) Surrender by Express Terms. A surrender is the yielding up an estate for life or years to him What is a who has the immediate estate in reversion or remainder, wherein the (h) Cole Ejec. 402 ; Hughes and Croic- ther's case, 13 Co. R. 66 ; BnulneU's case, 5 Co. R. 9. (c) Doc d. Lockicood v. Clarke, 8 East, 185 ; 9 R. R. 402. {d) Wrcnford v. Gyles, Cro. Eliz. 643 ; ISToy, 70. (c) Hardy v. Seycr, Cro. Eliz. 414. (/) Belaney v. Kelly, 24 L. T. 738. {g) Harrington v. Wise, Cro. Eliz. 486, cited 8 B. & C. 316 ; Earl of Pembroke v. Sir H. Berkeley, Cro. Eliz. 384, 560 ; Knight v. Mory, Id. 60 ; see post, Sect. 5, " Forfeiture." (7(.) Simpson v. Titterell, Cro. Eliz. 242. 314 Chap. VIIL — Determination of Tenancy. Ch.VIII. s. 3. Surrender {bij express Terms ) . Every Sur- render most be in Writing, and a Sur- render of more than 3 Years' Tenn must be bv Deed. Stat, of Frauds, s. 3. 8 & 9 Yict. c. 106. Agreement for Surrender. No Surrender by mere Can- cellation. Roc V. Arch- bishop of York. estate for life or years may merge, by mutual aoreement (/). The l^art}' making the surrender is called the surrenderor, and the party to whom it is made the surrenderee. It differs from a release in this respect, that the release operates b}' the greater estate descending upon the less ; whereas a surrender is the falling of a less estate into a greater (/t). The proper operative words of a surrender are "surrender and yield up"(Z). If a lessee reserves to himself any interest in or part of the estate, it is no surrender {m) : nor does a surrender, it seems, operate as such unless accepted by the reversioner (//). Every surrender, by the act of the parties, must be in writing, and every surrender of a term of more than three years must be by deed. This is the effect of the third section of the Statute of Frauds, and of the third section of the Eeal Property Act, 1845, 8 & 9 Vict. c. 106, the later enactment providing that if a deed be necessary for the creation of the term, a deed is requisite to its surrender (o). B}' the Statute of Frauds (29 Car. 2, c. 3), s. 3, " no leases, estates or interests, either of freehold or of term of years, or any uncertain interest not being copyhold or customary interest, of, in, to or out of any messuages, manors, lands, tenements or hereditaments, shall be assigned, granted or surrendered, unless it be by deed or note in writing, signed by the party so assigning, granting or surrendering the same, or their agents thereunto lawfully authorized b}' writing, or by act and operation of law;" and by the Real Property Act, 1845, 8 & 9 Vict. c. 106, s. 3, "a surrender in writing of an interest in any tenements or hereditaments, not being a copyhold interest, and not being an interest which might by law have been created without writing (p), made after the 1st day of October, 1845, shall be void at law unless made hy deed." An agreement to surrender an existing lease in consideration of the lessor granting a new one, if it fixes no date for the surrender, or for the commencement of the new lease, will not be specifi- cally enforced (q). It has been held that a lease cannot be surrendered by mere cancel- lation (/■) ; and it has been held also, where a lease appeared to have I (0 1 Inst. 337 (b) ; Smith L. & T. 303 (2nd ed.). (^•) Smith V. Maplcback, 1 T. E. 441 ; 1 K. R. 247 ; Williavis v. Saicycr, 3 B. k B. 70. ^ {l) Smith L. & T. 304 (2nd ed.). See Forms of Surrendeis, post, Ajipeudix B., Sects. 30, 31, 32, 33. (»i) Com. Dig. tit. Surrender (H.) ; Bac. Abr. tit. Leases (S. 3) ; Co. Lit. 337. {n) Cules V. Evanson, 19 C. B., N. S. 382. (o) See McGarth v. Sliannon, 17 Ir. R., C. L. 128. {p\ I.e. by sect. 1 of the Statute of P"rauds, "a lease not exceeding three years from the making thereof, whereupon the rent reserved unto the landlord shall amount unto two third jtarts at least of the full improved value." (?) Oxford, Maijor of v. Crow, 69 L. T. 228, per Romer, J. (r) Roc V. Archbishop of York, 6 East, 86 ; 8 R. R. 413 ; Ld. IVard v. Lumley, 5 H. & N. 87, 656 ; 29 L. J., Ex. 322. I Sect, 3. — Surrender (by Express Terms). 315 had the names of the parties torn off, that there was neither a siir- Ch.VIII. s. 3. render by operation of law, nor prima facie evidence of a surrender Surrender [bij . . . express Terms). by deed or note in writing (.s). A lessee may surrender upon condition, and if the condition be Conditional broken, the particular estate is rev^ested {t) ; therefore, if a lessee for years surrender his whole terra to the original lessor upon condition, he may, upon non-performance of the condition, re-enter and revive the term (»)• The lessee cannot before entry merge the term by a surrender, -^t what Time . . ' , . , . , a Surrender because till entry there is no term and no reversion wherein the may be made. jjossession ma}^ be merged : but if the lessee enter and assign, the assignee may before entry surrender his term to the lessor {x). But it is not necessary that the surrenderor of a lease, to begin at a future day, should be in possession in order to make a surrender before the period of commencement : thus, if a lease be to commence at Michaelmas next, and the lessee take a new lease under seal before Michaelmas, it is a surrender in law of the first lease {y). As to surrender of leases in futuro or future interests, there is this distinc- tion to be observed, that a lessee for j-ears of a term to begin at a day to come cannot surrender it by an actual surrender before the da}^ of the term begin, but he may by a surrender in law {z). When- ever a deed purporting to be a surrender cannot operate as such, it will probably take effect as an assignment or as a release of the right to the term, iit res magis raleat quampereat. In order to make a good surrender of lands by deed, and to make Requisites of them pass by such a surrender, these things are requisite : — 1. That render. the surrenderor be a person able to surrender, and that he have an estate in possession of the thing surrendered at the time of the sur- render made. 2. That the surrender be to him who has the next immediate estate in remainder or reversion, and that there be no intervening estate coming between. 3. That there be a privity of estate between the surrenderor and the surrenderee. 4. That the surrenderee have a higher and greater estate in the thing surrendered than the surrenderor hath, so that the estate of the surrenderor may be drowned therein. 5. That he have the estate in his own right, and not in the right of another. 6. That he be sole seised of this estate in remainder or reversion, and not in joint-tenancy {a). 7. That apt, or at all events sufticient, operative words be used. The words commonly employed are " surrender, grant, and yield Terms of up," or " assign and surrender." But no particular w^ords are lenden (s)i'oed.Coztri)cd from disputing, and which would not be valid if the first lease continued to exist, for he would be estopped from saying that the lessor had not power to make the new lease ; and as the lessor {h) See usual Forms of Surrenders, post. Appendix B., Sects. 30 — 33. (c) Ante, 314. {d) Farmer v. Rogers, 2 Wils. 26 ; Smith V. Maplchack, 1 T. R. -141 ; 1 R. R. 247 ; Wcddall v. Capes, 1 M. & AV. .'iO ; Harrison v. Blackburn, 17 C. B., K. S. 679, 680. (c) Per Byles, J,, in Colics v. Evanson, 19 C. B., N. S. 382. (/■) iJoc d. Wyatt v. Stagg, 5 Bing. N. "C. 564. (g) Nickells v. Atherstonc, 10 Q. B. 944. {h) Lyrm v. Reed, 13 M. & W. 285 ; Doc d. Murrcll v. Milivard, 3 M. & W. 328 ; Be^sdl V. Landsbcra, 7 Q. B. 638. (i) Ante, 314 ; Shep. Touch. 300; Com. Dig. tit. Surrender (L. 1) ; Perk. c. 9. (k) Ante, 314. {I) Davison d. Bromley v. Stanley, 4 Burr. 2210 ; Com. Dig. tit. Surrender (I.). (m) Roll. Abr. tit. Surrcmhr ; Crou-lcy V. Vitty, 7 E.xcli. 319 ; 21 L. J., Ex. 136 ; Fumirall v. Grove, 8 C. B., N. S. 496 : 30 L. J.,C. P. 3. («) Post, 317. (0) John V. Jenkins, 1 Cr. & M. 227 ; Foquct V. Moor, 7 Exch. 870 ; Cannan v. Hartley, 9 (). B. 634, 648 ; Bctxlelcy v. Viqur's, 4 E. & B. 71 ; 23 L. J., Q. B. 377. Sect. 3. — Surrender (by Operation of Law). 317 could not grant the new lease until the first lease was surrendered, Ch.VIII. s. 3. the acceptance of tlie new lease is of itself a surrender of the first («). Surrender {hj 1 . Operation of If a lessee for twenty years take a lease for ten years to begin at Law). Michaelmas next, there is no doubt but that the term of twentj^ 3'ears what is a is surrendered or determined immediately ; for by the lessee's accept- sufficeut new ' . . . . Lease. ance of the new lease, he admits that the lessor is in a situation to demise to him notwithstanding the existence of the other lease ; and, indeed, by such acceptance the lessor has power to make a new lease during the former {q). But where a lessee for twenty-one years took a lease of the same lands for forty years, to begin immediately after the death of J. S., it was held that this was not any present surrender of the first term, because J. S. might wholly outlive that term, and then there would be no union to work a surrender : and it was con- sidered that in the meantime, the chances being equal, whether he would survive it or not, the first term should not be hurt till that contingenc}' happened ; but that if J. S. died within the first term, then what remained of it was surrendered and gone by the taking place of the second (/■). Where the lessee for years of a house accepts a grant of the custody- of the same house, it is a surrender; for the custod_y of a thing which was let before, is another interest in the same thing leased, and cannot stand with the first lease (s) : and if the first lease be of the land itself, and the second lease of the vesture of the same land, it is a surrender of the first lease : so it is if a lessee accept a grant of common, or rent out of the same land, to commence at a certain day within the term {t). If the king (or queen regnant) make a demise for 3'ears, the acceptance of a new lease is no surrender of the first lease (») : so if a lessee accept a grant of a thing con- sistent with the lease of the land, it is no surrender ; as if the lessee of a manor accept the grant of a bailiwick, or the stewardship of the same manor, or if he accept the ofiice of park-keeper of the same park for his life, it is no surrender, for the subsequent grant is merely collateral, and not of the thing itself {x) ; but where a lessee for years of an advowson was presented to the advowson by the lessor it was adjudged to be a surrender of his term(^). A recital in a second lease, that it was granted in consideration What does (amongst other things) of a surrender of a prior lease of the same g^^n.'e'nder ^ premises, is not a surrender by deed or note in writing of such prior lease, as it does not purport to be of itself a surrender or yielding up {p) Lyon V. Rccd, 13 M. & W. 285 ; 3Iclloivs v. May, Cro. Eliz. 874. Bcssell V. Landshcrg, 7 Q. B. 638. («) Brook v. Goring, Cro. Car. 197. {q) Ive\. Sams, Cro. Eliz. 521 ; Hutchins \x) Gie v. Rider, 1 Sid. 75 ; Gybson v. V. Martin, Id. 604; Bac. Abr. Leases Scarls, Cvo. J a.c. 176, 184; Earl of Arun- (S. 2) ; 2 Smith, L. C. 713 (6th ed.). del v. Lord Gray, 2 Dyer, 200 b ; IFood- (-/•) Bac. Abr. tit. Leases (S. 3). ward v. Ashton, 1 Ventr. 296. (s) Gybson v. Searls, Cro. Jac. 177. (y) Gybson v. Scarls, Cro. Jac. 84, 176. (t) Com. Dig. tit. Surrender (I. 1); 318 Chap. VIII. — Determination of Tenancy. Surrender {/'// Opei-ation of Law). Effect of an invalid new Lease. Ch.VIII. s. 3. of the interest {z). A mere agreement for a new lease is not sufficient to create an implied surrender of the previous one (a) ; so an agree- ment between the lessor and a stranger that the lessee shall have a new lease is no surrender (b) : and if a lessee accept a new lease in trust for another it is no surrender (r). But it seems that if a lessee re-demise to the lessor, for his whole term, reserving a rent, that amounts to a surrender (d). A notice to quit at a future day cannot operate as a surrender (e), but a written request by the tenant to his landlord to re-let the premises to some other person ma}', when acted on, amount to a surrender by act and operation of law (/). No inqdied surrender by the grant of a new lease will take effect, if the new lease be void (r/) : and if the new lease do not pass an interest according to the contract and intention of tlie parties, an acceptance of it is not an implied surrender of the old lease (Ji). The acceptance of a voidable lease which is afterwards made void contrary to the intention of the parties, but which has operated to pass some part of the term contracted for, is not a surrender of a valid former lease inconsistent therewith : therefore when a tenant for life, with a power of leasing, made a lease of part of some land, wliicli was not a good execution of the power, in consideration of the surrender of two prior leases of the whole of the land, and in order to effectuate an agreement entered into between the lessee and another person for the sale of the remaining part of the land, which the lease recited that it was intended to lease to the vendee by indenture of even date, and which was done ; it was held, after the death of the tenant for life, that this new lease as to the premises thereby demised did not operate as a surrender of the two prior leases (/)• So where a tenant for life, with power of leasing, granted a lease "in consideration of the surrender up" of a former lease, "which surrender is hereby made and accepted," it was held, that the new lease not being a good execution of the power, and therefore voidable by the remainderman, did not operate as a surrender of the prior lease (A). Where a voidable bishop's lease, which had been granted in consideration of a surrender by deed executed a few days before of a prior lease, was (z) Roc d. Earl of Berkeley v. Archhp. of York, 6 East, 86 ; 8 R. R. 413 ; Doc d. Earl of Eyremont v. Courtcnay, 1 1 (>. ]>. 702. (rt) Ante, 316. [h) Porris v. Jllin, Cro. Eliz. 173. ((•) Com. Dig. tit. Surrender (H) (L. 1). {(l) Lloi/d V. Lan'ifoi-d, 2 Jlod. 175 ; Swith V. Maplehack, \ T. R. 441 ; 1 K. IJ. 247. (e) Doc d. Murrell v. Milward, 3 M. & W. 328 ; Bessdl v. Landsbcrg, 7 Q. ]1 638. (/") Nickclls V. Atherdone, 13 Q. B. 944. {(j) Zouch d. Abbott v. Parsons, 3 Burr. 1807 ; JVilson v. Seu-ell, 4 Burr. 1980 ; Jtiic d. Enrl of Berkeley v. Archbp. of York, 6 East, 86 ; 8 R. R. 513 ; Davison d. Bromley v. Stanley, 4 Burr. 2210 ; Doc d. EarlofEgrcmont v. Courtcnay, ] 1 Q. B. 702 ; Smith L. &T. 307 (2nd ed.). (/t) Com. Dig. tit. Estates (G. 13). (0 Doe d. Biddulph v. Poole, 11 Q. B. 713 ; Roc d. Earl of Bcrkelev v. Archbp. of York, 6 East, 86 ; 8 R. R. 413. (k) Doc d. Earl of Egrcmont v. Courtc- nay, 11 Q. B. 702 ; overruliug Doe d. Earl of Egrcmont v. Foncood, 3 Q. B. 627. Sect. 3. — Surrender (by Operation of Law). 319 avoided by the successor ; it was held that the first lease was not Ch.VIII. s. 3. revived b}' such avoidance (/). Sm-rcndcr {bij If a lessee for years accept a new lease by indenture of part of the ^"zlw)". lands, it is a surrender for that part only, and not for the whole (in) ; -pw t { and though a contract for years cannot be so divided, as to be new Lease of avoided for part of the years and to subsist for the residue, either '^^ '^^ •'' by act of the party or act in law ; yet the land itself may be divided, and the tenant may surrender one or two acres, either expressly or by act of law, and the lease for the residue will stand good and untouched {n). If there be two lessees for life, or years, and one of them take a new lease for years, it is a surrender of the moiety (o). The term "surrender by operation of law " is properl}^ applied to By Estoppel, ■cases where the owner of a particular estate has been party to some ^y°"' ^- -^^'^'^^• act having some other object than that of a surrender, but which ■object cannot be effected whilst the particular estate continues, and the validit}^ of which act he is by law estopped from disputing (jj). ■Such surrender is the act of the law, and takes place independentl}' •of, and even in spite of, the intention of the parties (q). It is pre- sumed to have 2>receded the act to which the tenant is party (/•)• The acts in pais, which bind parties by way of estoppel, are acts of notoriety, not less formal and solemn than the execution of a deed, as, for instance, livery, entry, accej^tance of an estate, and the like(s). A tenancy from year to year cannot be determined unless there be By Consent •either a legal notice to quit or a surrender (t) : and therefore a tenancy •'^""^^ ^l*-^^^^' ° -^ _ ^ ' _ '' ance or ros- from 3'ear to year, created by parol, is not determined by a parol session. licence from the landlord to the tenant to quit in the middle of a ). Where two persons being tenants from year to year of two closes under different lessors agreed verbally to exchange them, wdiich the}' did, and then the arrangement was mentioned to a person who was steward of both the lessors, and who expressed his assent to it, it was held that this was evidence of new demises, and of a surrender b}' oj)eration of law of the previous interests of the tenant {q). A tenant from j'ear to 3'ear died, his widow remained in possession, and continued paying the rent to the landlord, with the knowledge of a person who, above a year after, took out administration ; the widow still continued in possession for a year, paying the rent as before ; it was held, that this did not amount to a surrender by operation of law of the tenancy from year to year (?•)• A tenant quitted possession of premises, and, on being applied to for rent, stated in a letter to his landlord, that he hoped his landlord would be able to let them to some other person on better terms ; this the landlord did a few days after, and the new tenant entered and paid rent : it was held, that these facts amounted to a surrender, but the court declined to consider the effect of the letter as evidence of a surrender by a note in writing within the Statute of Frauds (s). Where W. and H., who were partners, by agreement, in March, 1827, became tenants to the plaintiff, and at Midsummer, 1828, W. retired from the partnership, and in January, 1829, H. entered into partnershii? with S. ; and the l)laintiff gave receipts for rent as received from H. and W. retired, and as received from H. and S. after S. became a partner : and also (;«-) Taylor v. Chapman, Peake Ad. Cas. 19. (%) Stone V. Whiting, 2 Stark. 235 ; Nickclls V. Athcrstooic, 10 Q. B. 944 ; Walker v. Richardson, 2 M. & W. 882; Lawrence v. Faux, 2 F. & F. 435 ; Hobson V. Cowley, 26 L. J., Ex. 209. (o) Davison v. Gent, 1 H. & N. 744 ; 26 L. J., Ex. 122 ; Laicrence v. Faux, 2 F. & F. 435. ip) Thomas v. Cook, 2 B. & Ad. 119; Johnstone v. Hvdlestone, 4 B. & C. 922 ; Smith L. & T. 308—310 (2nd ed.) ; Wilson V. Seicell, 4 Burr. 1975 ; Hall v. Burgess, 5 B. & C. 332 ; Walls v. Atcheson, 3 Bing. 462 ; Woodcock v. Nuth, 8 Bing. 170 ; Lawrence v. Faivx,, 2 F. & F. 435. {q) F^cs V. Williams, 2 C, il. & R. 581 ; Lyon V. Reed, 13 M. & W. 285 ; Smith L. &T. 310 (2nd ed.). (r) Doe d. Hull v. Wood, 14 M. & AV. 682. (.s) Nickells v. Atherstone, 10 Q. B. 944 ; Smith L. &T. 314 (2nd ed.). Sect. 3. — Surrender (by Operation of Law). 323 gave H. a letter to his attorney, signifying that a lease might be made C'h.YIII. s. 3. to H. and S., but which was kept by H. and not acted upon, and no Siirrender {by ' . Operation oj lease was prepared ; it was held, that W. remained liable for the rent Law). accruing at the time of H. and S. {t). AVhere premises had been let to B. for a term determinable by a notice to quit, and, pending the term, A., the landlord, agreed to let C. stand in B.'s place, and C. offered to pay rent; it was held, in an action for use and occupation against C, that he could not set up as a defence that B.'s term had not been determined either by a notice to quit, or a surrender in writing 00 • Where a sole tenant from year to 3'ear, before the termination of his tenanc}', entered into an agreement with his landlord for a lease to be granted to him and another jointly, and both entered upon and occupied the premises jointly ; it was held, that the first tenancy was determined though the lease was never executed pursuant to the agreement (.r) . (c) Operation of Surrender. The surrender of a lease will not affect or prejudice a sub-lease Surrender will . Till iiot prejudice previously granted {y), unless indeed the sub-tenant expressly assents previous Suh- to the surrender and in effect attorns to the surrenderee ; to hold of leases. him on new terms, or as his agent or servant (^). Where a lessee mortgaged tenant's fixtures, and afterwards surrendered his lease to the lessor, who granted a fresh lease to a third part}^ ; it was held, that the mortgagee had a right to enter and sever the fixtures, as it was not competent to the tenant to defeat his grant by the subsequent voluntary act of surrender {a). Formerlv if a lessee for vears, who had sub-let for a less term, Operation on ^ * ' R6nts rGS6rvG(i surrendered his term to the lessor, it followed that the reversion i^ Sub-leases. on the sub-lease being gone, the rent and the covenants were gone also (h). But the Landlord and Tenant Act, 1730, 4 Geo. 2, c. 28, s. 6, enabled a lessee to surrender his lease for the purpose of taking a new one without a surrender of a sub-lease, and saved to the lessee all the same remedies against the sub-lessee for rents, covenants and duties, and to the original lessor the same remedies for rents and duties reserved by the new lease, so far as they exceed not the (t) Graham v. Wichelo, 1 Cr. & M. 188 ; v. Stratton, 1 De G., F. & J. 33 ; 29 L. J., Woodcock V. Nuth, 8 Bing. 170. Ch. 1, 7. [u) Phip2}sv. Sculthorpe, 1 B. & A. 50 ; {z) Lambert v. McDonnell, 15 Ir. Com. but see Uyde v. Moakes, 5 C. & P. 42. L. R. 136. (x) Hammertoii v. Steed, 3 B. & C. 478 ; {a) London and Westminster Loan and 5 D. & R. 206 ; 3 L. J., K. B. 33 ; 27 R. R. Discount Co., Limited v. Drake, 6 C. B., 407. N. S. 798 ; 28 L. J., C. P. 297 ; and see (y) Mellor v. Watkins, L. R., 9 Q. B. Saint v. Pilley, L. R., 10 Ex. 137; 44 409 ; Doe d. Beaden v. Pyke, 5 M. & S. L. J., Ex. 33. 146 ; 17 R. R. 296 ; Pleasant d.Haytonv. (b) Threr v. Barton, Moore, 94 ; Webb Benson, 14 East, 232 ; 12 R. R. 507 ; v. Russell, 3 T. R. 393 ; 1 R. R. 725 ; Torriano v. Young, 6 C. & P. 8 ; Piycjott Burton v. Barclay, 7 Bing. 756. 21—2 324 Chap. YIII. — Determination of Tenancy. Ch.VIII. s. 3. Surrender [Operation of). Surrenderee, assignee of reversion on a sub-lease. Effect on Rent previously due. Accruing Rent. Effect of Surrender of part. By Assignee. rents and duties reserved in the former one, out of which the sub- lease was derived, as if the original lease were still kept on foot (r). And by the Real Property Act, 1845, 8 & 9 Vict. c. 106, s. 9, if a reversion expectant on a lease is surrendered, the estate which confers, as against the tenant, the next vested right to the tene- ments, is deemed the reversion for the purpose of preserving the incidents to and obligations on the reversion {d) ; so that, by the effect of this statute, the sui-renderee becomes assignee of the reversion expectant on the sub-lease. Where a lease containing a personal covenant for the payment of rent is surrendered, the personal covenant is independent of the estate in the property, and as to rent previously due is not affected by the surrender, but the lessor remains a specialty creditor for the rent which accrued before the surrender (e), and where there is no personal covenant, the lessee is liable for use and occupation (/). Before the Apportionment Act, 1870 (r/), rent reserved by the lease at fixed periods, quarterly or otherwise, which was accrnhuf when a surrender Avas made, sank and was entirely lost {h) ; but that act, sect. 3, b}^ the words " re-entry, death or otherwise," seems ta include the case of a surrender. The surrender of a part of the demised premises does not put an end to the tenancy of the remainder (/). The surrender of part of the demised premises by an assignee, will not relieve the lessee from his covenant to pay rent. So it was held by the Court of Appeal in Bai/nton v. Morgan (k) without deciding whether tlie covenant was apportionable or not, and two of the judges (Brett, M.R., and Fry, L.J.), intimating that if the covenant was not app(n-tit)nable, the lessee was liable for the whole rent. Cave, J., had intimated in the court below that if the liabilit}' of the lessee still existed it must exist as a whole on the ground that the law would not imply a modified covenant to suit modified circumstances ; and it is submitted to be clear both on authority (/) and principle that the liability subsists as a whole and cannot be apportioned. (c) Smith L. & T. 317 ; Doc d. Palk v. MarchcUi, 1 B. & Ad. 715. See Ecclesias- tical Com7nissio7ie7-s v. Treemcr, 41 AV. R. 166, and see 4 Geo. 2, c. 28, s. 6, at length, post, Chap. IX., Sect. 5. [d) Smith L. & T. 316. See p. 328, post. {€) Att.-Gen. v. Cox, 3 H. L. Cas. 240 ; Smith L. & T. 317 (2nded.). (/) Shaiv v. Lomas, 59 L. T. 477. (f/) Post, Chap. X., Sect. 6(b). (h) Grimman v. Leggc, 8 B. & C. 324 ; Slack V. Sharx), 8 A. & E. 366 ; Dodd v. Acklom, 6 M. & G. 673 ; Doe d. Philip V. Benjamin, 9 A. & E. 644 ; Furnivall V. Grove, 8 0. B., N. S. 496 ; 30 L. J., C. P. 3. {i) Holme v. Brwiskill, 3 Q. B. D., at p. 504 ; 47 L. J., Q. B. 410 ; 38 L. T. 838 — C. A. ; Baynton v. Morgan, infra. {k) Baynton v. Morgan, 22 Q. B. D. 74 ; 58 L. J., g. B. 139 ; 37 W. R. 148— C. A. affirming Cave, J., 21 Q. B. D. 101 ;. 57 L. J., Q. B. 465 ; 59 L. T. 478. {I) See i)er cur. in the considered judg- ment in Stevenson v. Lambard, 2 East,. 573; 6 K. R. 511. Sect. 3. — Surrender (by Operation of Law). 325 In the peculiar case of Southwell v. Scatter (m), the plaintiff, Ch.YIII. s. 3. having let to the defendant, assigned the reversion, but agreed with Surrender . •■ , ^ ^■, • • n ^ {Operation of). the assignee that they should continue to receive rent from the defendant, to whom they gave notice of the agreement. The ^f^^^. assio-n- defendant afterwards surrendered to the assignee of the reversion, ™-^^^ of future rent. and it was held that such a surrender was valid, and that the rent accruing due after it could not be recovered by the plaintiff from the defendant ; but it seems that the plaintiff would have had a remedy against the assignee, though it was not necessary to decide that point. (d) By and to idiom Surrender made. Those persons who are disabled to grant are unable to surrender ; Surrenderee and such persons as are disabled to take by grant are unable to •^l^j'^ediate ^ take by a surrender («). Moreover, the surrenderee must be the Reversioner. immediate reversioner (o) ; if therefore A. let to B. for ten years, who lets to C. for live 3"ears, C. cannot surrender to A. by reason of the intermediate interest of B. ; but in such case B. may surrender to A., and afterwards C. likewise, because then his lease for five years is become immediate to the reversion of A. (j)). If a husband have a lease or estate for years in right of his wife, he alone, or he and his wife together, may surrender it; but if the husband have an estate for life in right of his wife, who is tenant in dower or other- wise, and he alone, or he and she together, surrender it, the surrender is good only during the life of the husband, unless the deed be acknowledged by the wife pursuant to the Act for the Abolition of Fines and Eecoveries. One ^oint tenant c&miot surrender to another joint tenant, but he JointTenants, , , • J 1 • /-\ ^ i J. Executors. &c. may grant, release or assign to him. One oi two or more executors may also surrender an estate or lease for j^ears, which the executors have in the right of their testator (q). Where the lessee of premises, under a covenant of re-entiy if the rent should be in arrear twenty- eight days, died in bad circumstances, and his brother administered de son tort, and then having agreed with the landlord to give him possession and suffer the lease to be cancelled on his abandoning the rent, which was twenty- eight days in arrear, took out letters of administration ; it Avas held, that the agreement of the brother as administrator de son tort did not conclude him as rightful adminis- trator, nor give a right of possession to the landlord who had entered under the agreement, but who had not made any formal demand of the rent, nor taken a regular surrender of the lease (r). Where a (ni) Soidhifdl v. Scottcr, 49 L. J., Ex. 68, 403. 356 ; 44 J. P. 376— C. A. (jj) Bac. Abr. tit. Leases (S. 2). (/i) Shep. Touch. 303. [q) Sliep. Touch. 303. \o) Edwards \. Wickwar, L. K., 1 Eq. (r) Doe d. Hornby v. Glenn, 1 A. kY, 49. 326 Chap. VIII.— Determination or Tenancy. Ch.VIII. s. 3. lessee who had paid rent sometimes to a trustee and sometimes to a Surrender (by gestui Que trust, gave up possession on the last da}^ of the term, but and to whom 1 ' & i i •> made). before it was ended, to the person who had been trustee, and not to the party then having the legal title ; it was held, that as the act was equivocal, it did not amount to either a surrender or to a forfeiture (s). Infants. All infant may make a surrender in law by the acceptance of a new lease, if such new lease increase his term or decrease his rent ; but a surrender by an infant lessee by deed is absolutely void. Sequestrators. A surrender of a lease cannot he made to sequestrators ; it must be to the lessor, or to a party legally entitled under him {t). What Estate Surrender may operate on. A lessee may surrender to him who has the immediate reversion, either in fee or for an}' less estate {n). AVhat amounts to a Merger of a Term. Sect. 4. — Merger. A lease for years may be determined by merger ; that is, when there is a union of the term with the immediate reversion, both being vested at the same time in one person in the same right. In such case the reversion merges or drowns the term, because they are inconsistent and incompatible {x). Nemo potest esse tenens et dominns. A person cannot be, at the same time, both landlord and tenant of the same premises. It maj- be laid down as a general rule, that whenever the particular estate and that immediatel}' in reversion are both legal or both equitable, and b}^ any act or event subsequent to the creation of the particular estate become for the first time vested in one person in the same right, their separate existence will cease and a merger will take place. But where a tenant for ninety-nine years purchases the reversion in fee, and takes a conveyance thereof to a trustee for himself, expressly to prevent a merger, the term becomes one in gross, and no merger takes place {y). A particular estate wdll merge in a reversion of a shorter duration than itself (^) ; as if one be lessee for twenty j-ears, and the reversion expectant thereon be granted to another for one year, who grants it to the lessee, it will operate as a merger of the twenty years' term, and the term for one year will begin to run (a). Where a lessee made a (s) Ackland v. Lutley, 9 A. & E. 879. (0 Cornish v. Searell, 8 B. & C. 471. {u) Bac. Abr. tit. Le.aaes (S. 1, 2) ; Challoiwr v. Davis, 1 Ld. Eaym. 402 ; Hiujhcs V. liobotham, Cro. Eliz. 302. (x) Bac. Abr. tit. Leases {B.) ; 2 Blac. Com. 177 ; Salmon v. Stvan, Cro. .lac. 619 ; Burton v. Barclay, 7 Bing. 745 ; Lord Dynevor v. Tcnnant, 13 App. Cas. 279. (y) Belaney v. Belaney, L. K., 2 Cli. Ap. 138 ; 36 L. J.. Ch. 265. {z) Un'jhes V. Rubotham, Cro. Eliz. 302 ; Poph. 30. (a) Cruise, Dig. 96 ; Stephens v. Bridges, 6 Madd. 66 ; 22 R. K. 242. Sect. 4, — Merger. 327 sub-lease for all his term, except a few days, and then granted the Ch.VIII.s. 4. sub-lease and the rent thereby reserved to his lessor for the term Merger. mentioned in the sub-lease (but not for the few days so excepted), it was held, that the chattel interest was not merged in the fee {h). Where a lessee of premises for a term of twenty-one years, which Avould expire at Michaelmas, 1809, in December, 1799, took a further lease of the same premises for sixty years, to commence from Michaelmas, 1809 ; and the lessor died in December, 1800, and devised the j) remises in question to A., the lessee, for his life, who by lease and release in 1806 conveyed his life estate to B.: — it was held that A.'s interest in the lease of 1799, which was to com- mence in 1809, was not merged in his estate for life (c)- Sir Edward Coke lays it down as a general rule that a person cannot have a term for years in his own right, and a freehold in autre droit, but that his own term shall drown in the freehold ; but a man may have a term of 3'ears in autre droit, and a freehold in his own right {d) ; and it seems to be agreed, that if a man, being joossessed of a term of years in right of his wife, purchase the inheritance, the term for years, though in right of his wife, is merged and extinct, because the purchase was the express act of the husband, and therefore amounts in law to a disposition of the term, by reason of the merger con- sequent thereujion ; but a bare intermarriage of a woman who is a termor with the reversioner will not merge the term, because by the intermarriage the term is cast upon the husband b}' act of law, without any concurrence or immediate act done by him to obtain the same ; and therefore in such case the law will preserve the term in the same plight as it gave it to the husband, till he by some express act destroys it or gives it away {e). AVhere, however, the husband himself is lessee for life, and intermarries with the lessor, this merges his own term, because he thereby draws to himself the immediate reversion, in nature of a purchase by his own voluntary act, and so undermines his own term ; whereas in the other case, the term existing in the woman until the marriage, is not thereby so drawn out of her or annexed to the freehold as to merge therein ; because that attraction which is only by act of law consequent upon the marriage, would, by merging the term, do wrong to a married woman, and so take the term out of her, though the husband did no express act for that purpose, which the law will not allow. If a husband is possessed of a term of years, and the owner of the rever- sion in fee devises it to the wife, who has issue, the husband, who in the lifetime of the wife is tenant by the curtesy initiate, holds the {b) Burton v. Barclay, 7 Bing. 745. (d) Webb v. Russell, 3 T. R. 401 ; 1 R. R. (c) Doe d. Rmvlinqs v. TFalker, 5 B. & C. 725, per Lord Kenyon, G.J. Ill ; 7 D. & R. 487 ; 4 L. J., K. B. 159 ; [r) Co. Lit. 338 b ; Lady Plaft v. Slcaii, 29 R. R. 184. Cro. Jac. 275. 328 Chap. VIII. — Determination of Tenancy. Ch.VIII. s. 4. Merger, Administra- tor. "When Rever- sion merged, next vested Estate to be deemed Re- version. 8 & 9 Vict, c. 106, s. 9, ^^lerger after tlie Judicature Acts. two estates in different rights, without having acquired the freehold by his own act, and consequently there is no merger (/). C. as administrator held certain land for a term of years, which he demised to P. for a shorter term. P. afterwards assigned this land to C. for the shorter term. In the first deed C. was described as administrator, but not in the second. It was held that there had been no merger in equity (f/) . Formerly if a tenant for a term of years leased for a less term, and assigned his reversion, and the assignee took a conveyance of the fee, by which his former reversionary interest was merged, the covenants of the sub-lease incident to that reversionar}' interest were thereby extinguished (//). But by the Heal Property Act, 1845, 8 & 9 Yict. c. 106, s. 9, " when tlie reversion expectant on a lease, made either before or after the passing of this act, of any tenements or hereditaments of an}' tenure, shall, after the 1st of October, 1815, be surrendered or merged, the estate, which shall for the time being confer as against the tenant under the same lease the next vested right to the same tenements or hereditaments, shall, to the extent and for the i^urpose of i^reserving such incidents to and obligations on the same reversion as, but for the surrender or merger thereof, would have subsisted, be deemed the reversion expectant on the same lease." By the Judicature Act, 1873, s. 25, sub-s. (4), "there shall not after the commencement of this act (/), be any merger b}' operation of law only of any estate, the beneficial interest of which would not be deemed to be merged or extinguished in equitv." And see as to merger generally the judgment of the House of Lords in the very special case of Ijord Dyncvor v. Tennant (A). By Breach of Covenant, where Condi- tion of Re- entry. Sect. 5. — Forfeiture. (a) How incurred generally. A lease may be determined by entry or ejectment for a forfeiture incurred either by (1) breach of a condition therein in the lease ; or (2) for a breach of any covenant, in case (and in case only (/)) the lease contain a condition or proviso for re-entry for a breach of such (/) Jones V. Davies, .5 H. k N. 766 ; 7 Id. 507 ; 29.L. J., Ex. 374. (g) Chambers v. Kingham, L. R., 10 Ch. D. 743 ; 39 L. T. 272, per Frv, .1. (//) Webby. RhsscU, 3 T. R. 393*; 1 R. R. "-^^ Thome V. Woolcombc, 3 B. & Ad. 586. 'i'2b (i) I.e., 1st of Xoveniber, 1875. (^•) Dyncvor (Lord) v. Tennant, 13 App. Cas. 272 ; 37 W. R. 193. (/) It is of importance that a lease for years should contain a proviso for re-entry for non-payment of rent at any rate, as otherwise the lessor may find himself saddled witli an impecunious tenant, and not lie aide to get rid of him — unless, imleed. he can get judgment signed for rent due, and seize the term of years in execution. Sect. 5. — Forfeiture (how incurred generally). 329 covenant (m). The same rule applies to the hreach of the terms of Ch.VIII. s. 5. an agreement for a lease for years, whether a person has entered and Forfeiture f' J » i ^ (^/loiv incurred holds as tenant from year to j'ear (n), or is considered as actual genemUy). lessee (o). In that case also, if the agreement stipulate for a proviso for re-entry, ejectment can be brought at once. The lessor, having the jus disponendi, may annex whatever conditions he pleases to his grant, provided they be not illegal or repugnant to the grant itself; and upon the breach of any of these conditions ma}-, subject to special statutory provisions for "relief against forfeiture," avoid the lease {p). Besides incurring a forfeiture by the breach of express conditions. By what Acts which will be hereafter considered, a lessee may incur a forfeiture niay be in- for breach of implied conditions, either by matter of record, or by cuned. act in pais : 1, by matter of record, where he sues out a writ, or resorts to a remedy which claims or supposes a right to the freehold, or where, in an action by his lessor grounded upon the lease, he resists the demand under the grant of a higher interest in the land ; or where he acknowledges in court the fee to be in a stranger ; for having thus solemnly protested against the right of his lessor, he is estopped b}' the record from claiming an interest under him {q), but anything of this sort can seldom, if ever, now happen, real actions having been abolished ; 2, by act in pais, where he aliens the estate m fee (r). Where a tenant delivered up possession of the premises and the lease, in fraud of his landlord, to a person who claimed under an hostile title, with the intention of enabling him to set up that title, not with the intention that he should hold under the lease ; it was held, that the term was forfeited (s). Where a lessee, who had paid rent sometimes to a trustee and sometimes to a cestui que trust, gave up possession on the last day of the term, but before the term was ended, to the person who had been trustee, and not to the party then having the legal title ; it was held, that as the act was equi- vocal, it did not amount either to a surrender or a forfeiture of the term {t). Where a forfeiture may be incurred b}' a grant or deed, it is necessary that the deed be a valid instrument, for if by reason of any defect it be void, it will not work a forfeiture of the estate {a) ; but granting a lease of the land for more years than he himself has (m) Lit. s. 325; Doe d. Wilson v. 537, 539 ; 6 Id. 552. As to " relief against FhillijJS,'! Bing. 13 ; 9 Moore, 46 ; 2 L. J., forfeiture," see post, Sect. 6. C. P. 103 ; 27 R. R. 539 ; Jjoc d. Barke v. (?) Post, Sect. 8. Boa-ditch, 8 Q. B. 973. (/•) Rees v. Irvinglon, Cro. Eliz. 322. {n) Doe A. 'Thomsonv. Anici/, 12 A. k E. (s) iJoc d. Ellcrbrock v. Flyan, 1 C. , 476 ; Thomas v. Packer, 1 H. & N. 669 ; M. & R. 137. Hayne v. Cummings, 16 C. B., X. S. {t) Ackland v. Lutlcy, 9 A. & E. 879. 421. [u] Doc d. Lloyd v. Poicell, 5 P.. & C. (o) See as to this, Walsh v. Lonsdale, 21 308, 312 ; 8 D. & R. 35 ; 4 L. J., K. B. Ch. D. 9, ante. Chap. lY., Sect. 1. 159 : 29 R. R. 253. {X>) Baylis v. Le Gros, 4 C. B., X. S. 330 Chap. A^II. — Determination of Tenancy. Ch.VIII. s. 5. Forfeiture [how incurred generally). Time and Place of Per- iormance of Condition. Effect of tlie Statute of Limitations. Estate of Party entei-ing. is no forfeiture, because it is only a contract between him and his sub-lessee (or rather assignee), which cannot possibly prejudice the interest of the original lessor, and does not even pretend to usurp or touch the freehold or inheritance. A proviso in a lease for re-entry on a condition broken can only operate during the term (x). But it will extend to any new implied tenancj' from year to year upon the like terms and conditions (?/). Where a time certain is appointed in a proviso or condition for the i)erformance of anything, neither party is bound to attend at any other time ; and if it is provided that any act is done on a day certain, but no hour in the day is specified wherein the same shall be done, the party must attend such a length of time before and until sunset as may be convenient to do the act. If a place be limited and agreed on bv the parties where the condition is to be performed, the party who is to perform is not obliged to seek the party to whom it is due elsewhere, nor is he to whom it is to be performed obliged to accept of the performance elsewhere ; but he may accept it at another place, and it Avill be good (z). The Real Property Limitation Act, 1874 (37 & 38 Vict. c. 7-4), bars the party who has a right to enter for a forfeiture, but who neglects to do so for more than twelve years after his right accrued (a). Where an ejectment is founded on a particular forfeiture, it must be commenced within twelve years after such forfeiture accrued [h). But a lessor is not bound to take advantage of the first or any otber forfeitiu'e connnitted during the term (c). Therefore it is no defence to an ejectment commenced after the expiration of the lease that a forfeiture and right of re-entr}- thereon accrued under the lease more than twelve years before the commencement of the action ((/). It may be laid down for a general rule that he who enters or recovers by ejectment for a condition broken shall be seised or l^ossessed of that estate which the lessor had at the time of the estate made upon condition ; and he may avoid all mesne charges and incumbrances (e). (b) Construction of Proviso for lie-entry. Construction Provisoes for re-entry in leases are conditions annexed to the term, of Proviso for ^^j^^i ^^.^ ^^ ^ construed, like other contracts, according to the intent Pie-entry. ' ' '^ {x) Johns V. Whitley, 3 Wils. 127. (y) Thomas v. Packer, 1 H. & N. 669. (z) Bac. Abr. tit. Conditions (0. 4). (a) See JJoe d. Tarrant v. Hcllier, 3 T. Iv. 162; 1 R. R. 68(1. {b) ColeEjec. 11. (f) Luc d. i>he])pard v. Allen, 3 TaiHit. 78 ; 12 R. R. 597 ; Doe d. Bryan v. Bancks, 4 B. & A. 401 ; Doe d. Baker v. Jones, 5 Exch. 498. (d) Dof^ d. Alleyi v. Blakeway, 5 C. & P. .563 ; Doe d. Cook v. Danvers, 7 East, 299. (e) Co. Lit. 202 ; Bac. Abr. tit. Condi- tions (O. 4) ; Cole Ejec. 68. I Sect. 5. — Foefeituke (Construction of Proviso for Ee-entry). 331 of the parties to be collected from the words used, and not with Ch.VIII. s. 5. the strictness of conditions at common law (/) : therefore where Forptture [Construction there is a proviso in a lease, that on non-payment of rent or non- of Proviso for l^erformance of any of the lessee's covenants the term shall cease, '"'"" ^^'' the lessor, and not the lessee, has the option of determining a lease upon a breach made (r/). A proviso in a lease, that, upon breach of any of the covenants therein on the part of the lessee, the lessor may re-enter on the premises, " and the same have again, as if the said lease had never been made," means, that the lease is to be void from and after re-entry by the lessor, and does not deprive him of the right of bringing an action of covenant for rent which accrued previously : and this principle equally applies to a covenant for repairs or other services to be rendered by the lessee (h). An agree- ment of demise contained a clause that if the rent should be unpaid for ten days, or if the lessee should not observe all the conditions, &c., then it should be lawful for the lessor to enter upon and take possession of the premises, and to expel the lessee, without any legal process, and as effectuall}' as a sheriff might do on a recovery in ejectment; and that, in case of such entry and an action being brought, the defendant might plead leave and licence in bar ; it was held, that the lessee's right to possession as tenant continued until the lessor had availed himself of the licence given (i). Such a clause does not dispense with a formal demand of the rent (k). An agreement to let a house and for the lessee to make certain altera- tions, and if they were not done that the lessor might retake pos- session, and that the agreement should be null and void, is voidable only at the election of the lessor if the lessee does not make the alterations {I). Where in an agreement amounting to an actual demise there was a clause in the following form, " it is stipulated and conditioned that the lessee shall not underlet ; " it was held, that these words created a condition, and being such, upon breach of it the lessor might maintain ejectment, without an express clause of re-entrv(m). A proviso that the lessee shall pay 120/. per annum creates both a covenant and a condition, and therefore for breach of it an ejectment may be maintained without any express power of (/) Doc d. Davis v. IJham, Moo. & ]\[. 1 D. & L. 928. 189 ; Doe d. Muston v. Glachoin, 6 Q. B. (Jc) Barry v. Glover, 10 Ir. Com. L. R. 953. 961 ; Croft v. Lumlcy, 5 E. & B. 113 ; Acocks v. Phillips, 5 H. & jST. 667; 6 H. L. Cas. 67-2; 27 L. J., Q. B. 183. 321 ; Pcrrij v. Davis, 3 C. B., N. S. (J) Doe d. Nash v. Birch, 1 M. & ^V. 769. 402 ; Hayne v. Ciunmings, 16 C. B., N. S. (g) Rede v. Farr, 6 M. & S. 121 ; 18 421. R. R. 329. (/;() Doc d. Henniker v. Watt, 8 B. & C. [h) Hartshorn v. Watson, 4 Bing. N". C. 308 ; Simpson v. Titterell, Cro. Eliz. 242 ; 178 ; 6 Dowl. 404 ; see also Sclby v> Marsh v. Curteys, Cro. Eliz. 528 : Cole Browne, 7 Q. B. 620. Ejec. 402. (i) Kavanagh v. Gudyc, 7 M. & G. 316 ; 332 Chap, VIII. — Determination of Tenancy. Insensible Proviso. Ch.VIII. s. 5. re-entry (n). If b}' a written agreement premises are let for a term, Forfcdure <« g^^ ^^^ Under the rent of 80Z.," it is an agreement by the lessee to [iJonstr action _ ° of Proviso for pay that rent; and therefore if there be a power of re-entry in case , ^'^" 'y)- _ of breach of " an}^ of the agreements therein contained," the lessor has a right of re-entry on non-payment of rent, although there is no express agreement to pay rent (o). A proviso that if buildings should not be completed on a certain day " it shall be lawful for the lessors into the demised premises or any part thereof in the name of the whole [omitting the words 'to re-enter'] and repossess," would seem to give a right of re-entry {p). Where a proviso for re-entry was insensible, the court refused to decide its meaning, and nonsuited the plaintiff in an ejectment for a forfeiture {q). Where the lessee covenanted to pay the rent, and not to assign without the leave of the lessor, and there Avas a proviso for re-entry if the rent was in arrear, or if all or any of the covenants t]ierei)iafler contained on the part of the lessee should be broken ; and there were no covenants on the part of the lessee after the proviso, but only a covenant by the lessor that upon the lessee paying the rent, and performing all and every the covenants thcreiiihefore contained on his i)art to be performed, he should quietly enjoy ; it was held, that the lessor could not re-enter for breach of the covenant not to assign, for that the proviso was restrained by the word thereinafter to sub- sequent covenants ; and though there were none such, _yet the court could not reject the word (r). A proviso giving a power of re-entry if the lessee " shall do or cause to be done any act, matter or thing contrary to and in breach of any of the covenants," does not apjdy to a breach of the covenant to rej^air, the omission to repair not being an act done within the proviso (s). rroviso for lie-entry for Brcacli of negative Covenant. Hyde v. IFardcn, It has been said to be a general rule that the proviso for re-entry ap})lies only to the breach of an affirmative and not to the breach of a negative covenant (f). If the proviso be exin-essed to operate in case of " default in performance" or "failure to perform," or the like, this rule would seem to hold good ; and indeed in Hyde v. Warden (ii), the Court of Appeal was j)repared to hold, if it were necessar}', that the power of re-entry in the event of the lessee " wilfully failing or neglecting to perform any of the covenants " («) Ilarrinqton v. Wise, Cro. YA\z. 486 ; cited S B. & C. 316 ; Cole Ejec. 402. (o) Doc d. liains v. Knellcr, 4 C. k P. 3. {jJ) Hunt v. Bishop, 8 Exch. 675. {q) Doe d. Wyndham v. CarcvJ, 2 Q. B. 317 ; but see Doe d. Darke v. Bowditch, 8 Q. B. 973. (/•) Doc d. Spencer v. Godivin, 4 M. k S. 265 ; IG R. R. 463. (s) Doc d. Abdy v. Stevens, 3 B. & Ad. 299 ; Cole Ejec. 407. (/) Wcst\. Dobb, 39 L. J., Q. B. 190; Exch. Cliamb. per Channel), B. ; see also Doe d. Bulk v. Marchctti, 1 B. & Ad. 715 ; Evans v. Davis, 39 L. T. at pp. 392, 394. (ii) Hyde V. Warden, 3 Ex. D. at p. 82. Sect. 5. — Forfeiture (Construction of Proviso for Ee-entry). 333 does not apply to a breach of a negative covenant. But as was Cn.A^III. s. 5. pointed out by Blackburn, J., in Wadham v. Postinaster-General (x), Forfo'-tiire •i •' ' ' . , {Vonstruchon the difficult}^ arises in consequence of the form of the proviso for of Pnriso for re-entry. A proviso expressed to operate in case of " breach " or — ^'^*'' ^^'' — "non-observance " for instance, as well as in case of non-perform- ance, would seem clearly to apply to the breach of a negative covenant. Where a lease contained a proviso for re-entrv, if the lessee com- Proviso for ' ,, Re-entry for mitted waste to the value oi lOs., and the lessor re-entered, ana Waste to brought ejectment in consequence of the tenant's having pulled ^^'^'^^ Value. down some old buildings of more than lOs. value, and substituted others of a different description : it was held, that the waste con- templated in the proviso was waste producing an injury to the reversion, and that it was a question for the jury whether, under all the circumstances, such waste to the value of lOs. had been committed (^). Where there was, amongst others, a covenant not to carry off hay Effect of cove- under a penalty, and a clause followed which enumerated all the penalty on covenants except that, and provided for re-entry upon breach of any Proviso tor of the covenants ; it was held, that the penalty did not prevent the clause of re-entr}^ from applying to the hay covenant, the words being large enough (z). Similarly, where the reddendum clause stipulated for an additional rent in case of the lessee carrying on cer- tain trades which he covenanted not to carry on, and a proviso for re-entry for breach of covenants generally, it was held that the lease could not be construed as meaning tliat the lessee was entitled to carry on the trades in question on payment of the additional rent, and that the right of re-entry might be exercised on breaches upon which the additional rent became payable (a). Where a lease contained a clause of re-entry, in case the term of Pioviso for 11 11111 7 7 7 • • 1 Ke-entry m years thereby granted should be extended or taken m execution ; and case of Execu- before the end of the term, the sheriff' entered the premises under a writ of extent against the lessee at the suit of the crown, held an inquisition, and seized the lessee's interests into the king's hands ; it was held, that this proceeding was a takimj in execution within the latter clause of the condition, and that the term was determined and forfeited to the lessor {h) ; and where the condition was, amongst other things, to be void "if the lessee should incur any debt on (.1-) Wadham v. Postmaster - General, (a) IVcston v. Metro'politan Asylums L. R., 6 Q. B. at p. 648. Board, 9 Q. B. D. 404 ; 51 L. J., Q. B. 399 ; {y) Doe d. Earl of Darlington v. Bond, 40 L. T. 580 ; 30 W. R. 623— C. A. aff. 5 B. & C. 855. 8 Q. B. D. 387 ; 46 L. T. 166. (s) Doc d. Antrohus v. Jcpson, 3 B. & [b] Bex v. Topping, M'Clel. & You. 544 ; Ad. 402. 29 R. R. 544. tiou. 334 Chap. VIII. — Determination of Tenancy. Ch.VIII. s. 5. which anj^jndgment should be signed, entered up or given against Forfeiture hini and on which any writ of fieri facias, or other writ of execution, [Uonstructton . of Proviso for should be issued," and the tenant gave a warrant of attorney, on ^"^" '^'' which judgment was entered up and execution issued and the tenant's goods were taken, and the lessor entered ; it was held that he was entitled to the emblements (c). Proviso for Re-entry in case of Bank- ruptcy. Re-entry for Bankruptcy. Proviso for Re-entry for •ceasing to work Mines ; A proviso was, that in case the lessee should commit an act of bankruptcy, whereon a commission or fiat in bankruptcy should or might be issued, and under which he should be duly found and declared a bankrupt, the term should determine ; the tenant became bankrupt, and was found and declared a banki'upt, but there was not a proper petitioning creditor's debt on which the fiat was founded ; it was held by two judges, against the opinion of Parke, B., that the lessee was not duhj found and declared a bank- rupt within the meaning of the proviso (f/). A proviso was, that if the lessee, his executors, administrators or assigns, should become bankrupt or insolvent, or suffer any judgment to be entered against him by confession or otherwise, or suffer any extent, process or proceedings to be had or taken against him, whereby any reasonable probability might arise of the estate being extended, &c., the estate should determine, and the lessor have a power to re-enter; the tenant died during the term, and bj' his will devised the premises to his executors on trust, and the surviving executor became a bankrupt ; it was held that the lessor's right of re-entry thereupon accrued {e). The non-payment of a debt mentioned in an insolvent's schedule was held not to be a continuing insolvency, so as to constitute a new forfeiture of a lease, the former forfeiture by the insolvency having been waived (/). A lease for three lives contained a proviso that if the lessee, his heirs, c^c, should, during the continuance of the term, happen to become insolvent, and unable in circumstances to go on with the management of the farm, the demise should from thenceforth cease and be absolutely void : the court doubted whether the attainder of the tenant for felony was a forfeiture of the lease ; but held, that if it was a breach of the condition, it was not a con- tiiniing breach, but was contemporaneous with the conviction (oe d. barney v. Adams, 2 C. & J. 232 ; Doe d. Barker v. Goldsmith, 2 C. & J. 674. (o) Doe d. Freeman v.Batcmun, 2 B. & A. 168 ; Colville v. Hall, 14 Ir. Com. L. R. 265, C. P. (p) Fenn d. Mattheu; v. Smart, 12 East, 443 ; Doe d. Marriott v. Edwards, 5 B. & A(i. 1065 ; Docd. Prior y. Onglcy, 10 C. B. 25. \q) TFebb v. Russell, 3 T. R. 393, 402 ; 1 R. R. 725 ; Threr v. Barton, Moore, 94. (?•) Doe d. Barber v. Lawrence, 4 Taunt. 23 ; Lit. s. 347 ; Co. Lit. 214 b. 336 Chap. VIII. — Deteemination of Tenancy. Ch.VIII. s. 5. Forfeiture [ivho may avail them- selves of). Trustees. Devisees, Co- parceners, &c. Right of Assignee of the Reversion to Re-enter. 32 Hen. 8. c. 34. demised, and the executrix of the mortgagor demised and confirmed, and a power of re-entry for breach of covenants was reserved to them or either of them, it was held, that the deed operated as a demise by the mortgagee, and a confirmation by the executrix, and that the proviso for re-entry enured only to the mortgagee, and not to both (s). The same rule applied where trustees and cestui que trust joined in a lease, reserving rent to the cestui que trust, with a proviso for re-entr}' on non-payment {t), and where the tenant for life and the reversioner joined in a demise {u). The effect of the Judicature Act is to allow beneficiaries to avail themselves of a forfeiture (c), but in practice they will generally be represented by their trustees (?/). Where a power to determine a lease is reserved to the lessor, his heirs, executors or administx-ators, it will extend to his devisee {z). Where a power for re-entrj' for breach of covenants is reserved, and the reversion descends to coparceners, it seems that one or more of them cannot, without the other or others, maintain ejectment for a forfeiture, the condition or proviso for re-entry not being divisible {a). A lease granted under a power contained in a settlement reserved a right of entry to the lessor and his assigns ; it was held, that " assigns " meant assigns of the settlor ; and that although the right of re-entry could not be well reserved to the lessor, yet that tlie owners of the reversion under the settlement for the time being were entitled to the advantage of it as " assigns " {h). Where a lease was granted of a piece of land with two partly-erected messuages thereon, and the lessee covenanted to comjilete them within two months, and also to keep the said messuages in repair during the term, with a proviso for forfeiture for breach of anj' of the covenants, and the messuages were never completed, but after the expiration of the two months, the reversion was assigned to the plaintifi", and afterwards the messuages were much dilapidated in the roofs and other parts ; it was held, that whether the plaintiff co\dd or not maintain ejectment for not completing the messuages within the two months, he could certainly do so for the subsequent non-repair (c). At common law, no one but the grantor could re-enter for a forfeiture, and no grantee or assignee of the reversion could take the benefit or advantage of a condition for re-entry {d) ; but by is) 232; Doc d. Barney v. Adams, 2 C. & J. Moore v. Earl of Plymouth, 3 B. & A. (<) Doc (1. Barker v. Goldsmith, 2 C. & J 674. (it) TreporVs case, 6 Co. R. 15 ; Cole Ejec. (Cf) (2/) Treport's case, 6 Co. R. 15 404. Judicature Act, 1873, s. 24. R. S. C. Order XYL, r. 8. (z) Roc d. Bamford v. Haylcy, 12 East, 464 ; 11 R R. 455. («) Doc d. Fadzenx. Lewis, 5 A. & E. 277. (b) Grcenaway v. Hart, 14 C. B. 348; 23 L. J., C. P. 115. (c) Bennett v. Herrincj, 3 C. B., N. S. 370. {d) Lit. s. 374 ; Co. Lit. 214. Sect. 5. — Forfeiture (for Non-payment of Eent). 337 32 Hen. 8, c. 84, all grantees of the reversion, their heirs, executors, Ch.VIII. s. i successors and assigns, have the like advantage against the lessees, forfeiture their executors, adnnnistrators and assigns, bij entry Jor non-payment avail the'm- qf rent, or for doing ^vaste or other forfeiture, and the same remedy selves of). by action onl}^ for not performing other conditions, covenants and agreements contained in the said leases as the lessors or grantors themselves had (e). (d) Entry of Lessor. Generally speaking, where a forfeiture has been incurred for breach of any covenant or condition, the lessor must do some act evidencing his intention to enter for the forfeiture and determine the lease (/) ; and the lease will be avoided front that time only {g). Perhaps an actual entry should be made before action to avoid a lease for lives ; but the action itself is sufficient to avoid a lease for j^ears (/«). A corporation aggregate cannot, without deed, authorize their Entry by servant or agent to enter into land on their behalf for a condition ac'"rJe°rate°"* broken (i). Entry for a Foi'feitnre generally. (e) For Non-paynient of Rent. No ejectment can be maintained for non-payment of rent unless the reservation amount to a condition, or there is an express proviso in the lease giving the landlord a right to re-enter and determine it for non-ijayment (A). Such condition or proviso for re-entrj^ may and should, and in modern leases almost invariably does, by express words dispense with the necessit}' of a formal demand of the rent ; as where it says, "although no formal demand shall have been made thereof," or to that effect (/). If the proviso be for re-entry on default in payment of rent within twenty-one days, being demanded, the demand must be made after the twenty-one days have elapsed {m) ; and it has been said that the mere insertion of "being demanded" is equivalent to express Avords substituting any demand for the formal demand (n). A not uncommon form of the proviso is that the landlord may re-enter if and whenever a quarter's rent be in arrear, and no In Ejectment Proviso for Re-entry necessary. Demand of Rent dis- pensed with by Agree- ment. (e) As to tlie application of this act, see Chap. VII., Sect. 3, "Assignment of Re- version," ante, p. 262. (/) Arnshy v. Woodward, 6 B. & C. 519 ; lloherts v. Davey, 4 B. & Ad. 664 ; Baylis v. Lc Gros, 4 C. B,, N. S. 537 ; 6 Id. 552. (g) Cole Ejec. 408. (h) Cole Ejec. 403. (i) 1 Roll. 514. (/.■) Dnc d. Dixon v. Hoc, 7 C. B. 134 ; Hill V. Kempshall, Id. 975. L.T. {I) Doc d. Harris v. Masters, 2 B. & C. 490 ; Goodriglit d. Hare v. Cater, 2 Dong. 477, 486. {m) FJiUlips V. Bridge, L, R., 9 C. P. 48 ; 43 L. J., C. P. 13 ; 29 L. T. 692. (?i) lb., per Keating and Brett, J J. ; but it is submitted that this dictum is opposed to the o])inion of the majority of the court in Doc d. SchoU field v. Alexander, 2 M. & S. 525 ; 15 R. R. 338, and also to the maxim " ex2)ressio eorum qucc tacite instmt nihil opcratur.'^ 22 Proviso for Re-entry if and whenever Rent in airear, and no distress. 338 Chap. A^II. — Detekmination of Tenancy. Ch.VIII. s. 5. Forfeit Hn'\ for Non-p((ijmeut of Rent). "If and •whenever rent in arrear, and no distress found." Siteplierd v. Berger. Formal demand dis- pensed with bv C. L. P. Act, To what Cases C. L. P. Act applies. 1. Assignee, kc. 2. Rent in Arrear. 3. No suffi- cient Distress to be found. sufficient distress be found on the premises. In Shepherd v. Berger (o) the proviso for re-entry operated " if and whenever any one quarter's rent hereby reserved, or any part thereof, shall be in arrear for twent3'-one days, and no sufficient distress can be had or levied for the same." On the 25th ]March three quarters' rent was due, the yearly rent being 150/. On the 25tli April, the landlord distrained, and soon afterwards selHng realized 59Z. only, thus leaving more than one quarter's rent in arrear, and on the 25th May sued on the proviso for re-entry. The Court of Appeal held that the landlord had a right to appropriate, and had appropriated, the proceeds of the distress to the first two quarters' rent, so that there was a quarter's rent in arrear and no sufficient distress at the time of commencing the action, and gave judgment for the plaintiff (o) . By the Common Law Procedure Act, 1852 (15 & 16 Yict. c. 76), s. 210 (re-enacting 4 Geo. 2, c. 28, s. 2), a formal demand of the rent is rendered unnecessary in all cases between landlord and tenant when one half-year's rent is in arrear, and no sufficient distress is to he found on the demised premises, or any part thereof, counter- vailing the arrears then due ; and the lessor has power to re-enter for non-payment thereof (^j). The above enactment only applies — 1. As between landlord and tenant. But tlie assignee of a lessee, Avhether by way of mortgage or otherwise, is a "tenant" within the meaning of the enactment ((2) ; so is a mere sub-lessee, because he is a person " claiming or dei'iving under the lease " (r). 2. One half-year's rent at the least must be in arrear (.s-). 3. No sufficient distress to be found on the demised premises, or any part thereof, countervailing the arrears due (f) ; i.e., all the arrears, and not merely half-a-year's rent where more is due (»)• But a strict search must be made on the demised premises after the last day for saving the forfeiture, and before the writ issues (or at all events before the writ is served) {x), to ascertain that there is no sufficient distress on any i)art of the demised premises (?/). Unripe growing crops may amount to a sufficient distress {z). A distress is (o) Shepherd v. Bcrqcr, [1891] 1 Q. '[^. 597 ; 60 L. J., Q. B. 395 ; 04 L. T. 435 ; 39 W. R. 330 ; 55 J. P. 532— C. A. {p) See post, ("liajt. XXII., Sect. 1. (V) Doc d. Whitfield v. Hoc, 3 Taunt. 402 ; Williams y. Bosanquct, 1 Brod. & B. 238 ; 21 R. R. 585. {r) Doc d. Wyatt v. Byroyi, 1 C. B. 623 ; 3D & L. 31. (s) Hill V. Kempshall, 7 C. B. 975 ; Ootcsworth V. Sjiokcs. 10 C. B., N. S. 103; 30 L. J., C. P. 2-20 ; 2 F. & F. 390. (0 Doc d. Fomter v. Wandlcm, 7 T. R. 117. (m) Cross V. Jordan, 8 Exch. 149 ; over- ruling Doe d. Powell v. Roe, 9 Dowl. 548. (a) Doc d. DioMn v. Roc, 7 C. B. 134. (y) Ji'ccs d. Powell V. King, Forrest, 19, cited 2 Pu-od. &; B. 514 ; Doe d. Forslcr v. Wawtlass, 7 T. R. 117 ; 4 R. R. 393 ; Doe d. Smell v. Fuchau, 15 East, 286 ; 13 R. R. 472 ; Doe d. Havcrson v. Franks, 2 Q. & K. 678 ; Price v. Worvwod, 4 H. & N. 512; 28 L. J., Ex. 329; Wheeler v. Stevenson, 6 H. & N. 155 ; 30 L. J., Ex. 46. (c) Ex ])arte Arnison, L. R.. 3 Ex. 56 ; 37 L. J., Ex. 57. Sect. 5. — Forfeituke (for Non-payment of Eent). 339 not to be '' found" on the demised premises where it cannot be got Ch.VIII. s. 5. at by reason of the tenant having locked the outer doors, &c.(a), nor Forfeiturc{for . . , . . . ^ on-pay ment unless the goods are so visibly there that a broker going to distrani of Rent). would, using reasonable diligence, find them so as to be able to distrain them (/') . If a distress be found on the demised premises sufficient to satisfy so much of the rent as would reduce the arrears to less than half-a-year's rent, and it is wished to bring ejectment, no distress should be taken (c) ; but clear proof should be obtained as to the insufficiency of the distress to satisfy all the arrears (f/). A distress for rent under which part was recovered, will not prevent an ejectment for the residue, provided such residue amount to half-a-year's rent, or more, and there be no sufficient distress on the premises to satisfy such residue {e) ; but it is other- wise where the proceeds of the distress reduce the arrears to less than half-a-year's rent (/). We shall see presently (post, p. 842), that in ordinar}^ cases Distress no distress waives a forfeiture up to the dav of distress itself. Is it also „ " . Brewer v. a waiver in cases under the statute ? Breiccr v. Eaton (g) is strong iJaton. to the eti'ect that it is not, on the ground that as the landlord must prove that no sufficient distress was to be found, an actual distress is necessary to complete his title under the statute, and therefore inconsistent with the presumption derivable from distress in ordinary cases that the landlord intended the tenancy to continue, i.e., waived the forfeiture ; and the same view is taken by the Court of Appeal in Tliomas v. Lulham (Ji), although the statute does not in terms require actual distress, and the insufficiency ma}^ be proved without actual distress. 4. The landlord or lessor to whom the arrears are due must have 4. Right of "right by law to re-enter for non-payment thereof" (/)• The right to re-enter must be a right to enter and determine the lease for non- payment of the I'ent, and not merel}- a right to enter and hold the premises until the arrears are paid : otherwise this section will not apply (A:). The twenty-one days or other specified period mentioned in the proviso must have elapsed before any forfeiture can accrue for (a) Doe d. Chvppendcde v. Dyson, 1 Moo. k M. 77 ; Doe d. Cox v. Roc, 5 D. & L. 272 ; 6 R. R. 850 ; Hammoml v. Mather, 3 F. & F. 151. {h) Doc d. HaversoiiY. Franks, 2 C. &. K. 678. (c) Cotesworth v. Spokes, 10 C. B., N. S. 103 ; 30 L. J., C. P. 220 ; 2 F. & F. 390. {d) Doc d. Haverson v. Franks, 2 C. k K. 678. (c) Breur.r d. Ld. Onslow v. Eaton, 3 Doug. 230. (/) Cotesu-orthy. Spokes, 10 C. B., X. .S. 103; 30 L. J., C. V. 220. (g) Brevjcr d. Ld. Onslow v. Eaton, 3 Doug. 230. {h) Thomas v. Lulham, [1895] 2 Q. B. 400 ; 64 L. J., Q. B. 720 ; 73 L. T. 146 ; 43 W. R. 689 ; 14 R. 692— C. A., reversing Matliew, J., and inconsistent witli Shepherd V. Bergcr, in the Divisional Court, except so far as it proceeded on the authority of Cotesworth v. Spokes, 30 L. J., C. P. 220. (/) B rarer d. Lord Onslow v. Eaton, 3 Doug. 230, cited 6 T. R. 220. (k) Doc d. Darke v. Bowditch, 8 Q. B. 973. 22 2 340 Chap. YIII. — Determination of Tenancy. Ch.VIII. s. 5. Forfvitare{for Non-payment of Rent). non-payment of the rent (/). Although the proviso contain the words "being hiwfully demanded," the hmdlord does not lose the benefit of the statute ; no demand will be necessary if it be proved that half-a-year's rent was due before action brought, and no sufficient distress to be found on the demised premises {m). Service of the writ of ejectment under the above circumstances is by s. 210 of the statute sufficient " without any formal demand or re-entry." The statute makes such service a substitute for, and equivalent to, a formal demand of the rent according to the strict rules of the common law {n). And the right of re-entry by virtue of the statute must be taken to have accrued on the day when the forfeiture would have accrued at common law if a demand of payment had been duly made, and not when the writ of ejectment was served (o). The statute merely authorizes an action of ejectment in those cases to which it applies, but it will not justify the landlord or lessor in making an actual entry for non-payment of the rent {p). Demand of Unless there are express words in the lease or agreement dispensing i^^^to^thr ^^'^^^^ '^ formal demand of the rent, or the case falls within tlie above Common Law, enactment, no entry or ejectment can be maintained for non-payment of rent without a previous formal demand thereof made according to the strict rules of the common law {q). Such rules are as follow : 1. The demand must be made by the landlord or by his agent duly authorized in that behalf (r). 2. It must be made on the very last day to save the forfeiture. Therefore, if the proviso for re-entry be on non-payment of rent for thirty days after it becomes due, the demand must be made on the thirtieth day after the rent became due (exclusive of the da}'- on which it became due), and not on any other day before or afterwards (s). 3. It }nust be made a convenient time hefore and at sunset {t). It must be continued activel}' or constructively until sunset (^O- 4. It must be made ai the proper place. Therefore, if the lease specify the place at which the rent is to be paid, the demand must be made there and not elsewhere (r). But if no place be so Prior demand at common law. l>y wliom. When. ^Vhere. (?) Doe d. Dixon v. Roc, 7 C. B. 134. {vi) Doe d. Scholcficld v. Alexander, 2 M. & S. 525 ; 15 K. K. 338 ; Doc d. Earl of Shreicsbury v. Wilson, 5 B. & A. 364 (4tli point) ; Id. 384, 394 ; Cole Ejec. 417. (n) Cole Ejec. 417 ; Eassell d. Hodgson V. Gowthmiitc, Willes, 500, 507. (o) Doc d. Laicrencc v. Shaiccross, 3 B. & C. 752. {2>) Cole tjec. 69. (q) Molincux v. Molinctix, Cro. .Fac. 144; Doe d. Forster v. JFaiullass, 7 T. 11. 117 ; 4 U. K. 393 ; Acocks v. Phillips, 5 H. & N. 183 ; Rarr v. Glover, 13 Ir. Com. L. U. 113. {r) Toms v. Wilson, 32 L. J., Q. B. 33 ; Id. 382. (s) Doe d. Dixon v. Roc, 7 C. B. 134 ; Doc d. Forster v. Wandlass, 7 T. R. 117 ; 4 R. R. 393 : Smith and Rustard's case, 1 Leon. 141 ; Plow. 70 ; Co. Lit. 202 a. {t) Co. Lit. 202 a ; 1 Wms. Saund. 287 ; Cole Ejec. 413. {v,) Wood and CJiivcr' s case, 4 Leon. 179 ; Acocks V. Phillips, 5 H. & N. 183. {x) RorroxiglCs case, 4 Co. II. 73 ; Ruskin V. Edmunds, Cro. Eliz. 415 ; Co. Lit. 202 a. Sect. 5. — Forfeiture (for Non-payment of Rent). 341 appointed, the demand must be made upon the land, and at the most notorious place of it (?/). Therefore, if there be a dwelling- house upon the land, the demand must be made at the front door ; but it is not necessar}^ to enter the house, although the door be open (z). If the premises consist of a wood onh', the demand must be made at the gate of the wood, or at some highway leading through it, or other most notorious place. If oue place be as notorious as another, the lessor has election to demand it at which he will (a). Such demand must be actuall}^ made, although there be no person present on behalf of the tenant to answer it {h). Or it may be made on a sub-tenant (c). 5. The demand must be made of tlte precise sum then payable, and not one penny more or less (d). If the rent be payable quarterly, and more than one quarter is due, only the last quarter's rent should be demanded, and not the previous arrears, otherwise the demand, will be altogether bad (i'ior to the forfeiture is no waiver (/). Action for rent accruing due after the forfeiture {ni), or distress for rent (»), also amount to waiver. A forfeiture of a lease b}^ a lessee's insolvenc}^ has been held to be waived by accej^tance of rent from him after his discharge under the Insolvent Act (o). Forfeiture ma}' be waived by a pleading, as was held in a case where a landlord, suing in respect of breaches of covenants agreed to be inserted in a lease contracted for, claimed an injunction and possession, but stated in his pleadings that he was willing to grant the lease (j)) • It is well settled that a forfeiture is waived by distress (q) ; and as w^as pointed out by Crompton, J., in Ward v. Day (r), the doctrine of w^aiver by distress depends on a different principle from that of waiver by other acts — the principle that distress can only be levied on a tenant — so that a distress waives any forfeiture not only up to the day on which the rent distrained for was due, as had been previousl}^ held in Cotesu-ortJi v. Spokes (s), but up to the day of the distress itself. A case in the Year Books appears to show this (t) ; it maj' be laid down as undoubted law (»). In Shepherd v. Berger, the proviso for re-entry was, " if and when- ever''' a quarter's rent or part thereof was in arrear for21 days, "and no sufticient distress could be had or levied for the same," the rent being i^ayable on the usual quarter days. The landlord distrained in April for three quarters' rent in arrear at Lady Day, and the distress being insufficieut (by more than one quarter's rent) brought ejectment in May. It was held in the High Court, that the distress was a waiver, and that the action could not be maintained (x). But in the Court of Appeal this judgment was reversed, not on the question of waiver, but on the ground that the effect of the words " if and whenever " in the jjroviso was to give a right of re-entry as often as the two conditions named therein existed (ij). • (k) Croft V. Lumlci/, 5 E. & B. 648 ; 6 H. L. Cas. 672; 27 L. J., Q. B. 321; Davcn2Jort\. Reg., L. R., 3 App. Cas. 115, P. C. ; Strmuj v. Stringer, 61 L. T. 470, per Kekewich, J. il) Marsh v. CurteT/s, Cro. Eliz. 528 ; Price V. Worivood, 4 H. & N. 512 ; 28 L. J., Ex. 329. ('/*;) Bendy v. Nicholl, 4 C. B., N. S. 376 ; 27 L. J., C. P. 220. [n) Cotesu-orth v. Spokes, 10 C. B., N. S. 103 ; 30 L. J., C. P. 220. (o) Doc d. Gatehouse v. Bees, 4 Bing. N. C. 384. ip) Evans v. Davis, L. R., 10 Ch. D. 747 ; 48 L. J., Ch. 223 ; 39 L. T. 391 ; 27 W. E. 285. {q) Cotesworth v. Spokes, supra. (/•) Ward v. Day, 4 B. & S. 336 ; 33 L. J., Q. B. 11 ; Smith L. & T. (3rd ed.) 151 ; 1 Sm. L. C. (8th ed.) 61 ; Cotesworth V. Spokes was not cited in Ward v. Day. (s) Supra, note {n). {t) 14 Ed. 3, 3rd Ass. cited in Ward v. Day, by Bhickburn, J. [u) See Doe d. Floicer v. Peck, 1 B. k Ad. at p. 437. (x) Shepherd v. Berger, [1891] 1 Q. B at p. 598. 'y) Shepherd v. Berger, [1891] 1 Q. B. 597 ; 60 L. J., Q. B. 395 : 64 L. T. 435 ; 39 W. R. 330— C. A. Sect. 5. — Forfeiture (Waiver of). 343 Ch.VIII. s. 5. Forfeiture {Waiver of). No Waiver by acceptance of Kent, &c., after Eject- ment. Grimicood v. 3Ioss. If ejectment be brought on a forfeiture of a lease, and after the brmging of such ejectment the landlord accept rent {z), or distrain (a), or set up as a cause of forfeiture a subsequent non-payment of rent {h), it is no waiver. This best appears from Grimicood v. Moss, where a landlord brought ejectment on the 21st of July, and after action brought, distrained for rent due on the 24th of June. It was held that, in tlie action of ejectment, he might rely on a forfeiture accruing before the 2-ith of June, and it was said that the distress was a simple act of trespass (c). Of course, if there be an intention to waive, it is otherwise, as was held on demurrer in a case where the facts pleaded amounted to an agreement for a new tenancy on the terms of an old lease ((/). Though an acceptance of rent or other act of waiver may make a voidable lease good, it cannot make valid a deed or a lease which was actually void at first ; but where a lease for years contains the common proviso " that it shall and may be lawful for the lessor to re-enter," or a proviso " that the term shall cease and determine if the lessor please," the lease will be only voidable by a breach of covenant ; and the forfeiture may be waived by a subsequent acknowledgment of a tenancy (e). In order to render acceptance of rent or any other act a waiver of Lessor must a forfeiture, the lessor must have notice or knowledge of the for- feiture at the time of the supposed waiver (/), unless the forfeiture be of such a nature as to be equally within the knowledge of both the lessor and lessee (g). The act which is insisted on as amount- ing to a waiver is matter of evidence only, to show with what intent it was done, to be left to the juiy under the circumstances of the case (h). AVhere a lessor was too ill to attend to business, and it did not appear that he knew of a forfeiture, his son, who collected the rents, was held not to have authority to waive a forfeiture (i) . If A., tenant for life, subject to forfeiture, with a remainder over to B., lease to C. for a term, and afterwards apprehending that he has forfeited, acquiesce in B.'s claim to and receipt of the rent from C, his executor may, on showing that he acquiesced under a false apprehension, recover from C. the amount of the rent erroneously (z) Doe d. Moorecraft v. Mcux, 4 B. & C. 606 ; 1 C. ic P. 346 ; Jomts v. Carter, 15 M. & W. 718. («) Grimwood v. Moss, L. R. , 7 C. P. 360 ; 41 L. J., C. P. 239 ; 27 L. T. 768. {If) Toleman v. Portbunj, 41 L. J., Q. B. 98, Ex. Ch. (f) Grimwood v. 3Ioss, iibi supra, per Willes, J. (d) Evans v. Wyatt, 43 L. T. 176. (e) Doc d. Bristoiu v. Uld, Ad. Ejee. 155 (4th ed.). of Forfeiture. (/) Pennant'' s case, 3 Co. R. 63 b ; Duppcc V. Mayo, IWms Saund. 288 a, b, note (16) ; Harvie v. Osicel, Cro. Eliz. 563, 572 ; Goodriqlit d. Walker v. JJavids, 2 Cowp. 803. (g) Hoc d. Greqson v. Harrison, 2 T. R. 425 ; 1 R. R. 51-3. (/<) Doe d. Cheney v. Batton, Cowp. 243 ; 9 R. R. 570. (/) Doe d. Nash v. Birch, 1 M. & W. 402. 344 Chap. VIII. — DETEPaiiNATioN of Tenancy. Ch.VIII. s. 5. paid to B. ; for in order to constitute a confirmation of the payment, Forfeiture some act ouglit to liave been done by A. with the knowledge of his {Waiver of). . . *=" -^ ^^ own situation {h). Continuing Breach. Teuton V. Barnett. Distress only acknowledges Tenancy up to Day of Distress. Where the breach is of a continuing nature, the waiver of anj^ forfeiture up to a certain day will afford no defence to an ejectment for a subsequent breach (Z) ; as where the covenant is to keep the demised premises in repair during the term {m), or to keep them insured in a certain manner from loss or damage by fire during the term(H), or not to use certain rooms in a particular manner (o). Acceptance of rent which becomes due pending a notice to repair, is no waiver of a subsequent forfeiture occasioned by non-compliance with such notice {p). Indeed, it would seem that acceptance of rent due after the expiration of the notice will not bar an ejectment if the premises continue subsequently unrepaired {q). In Penton v. Barnett (r), premises being out of repair in breach of covenant, the plaintiff" gave notice on September 22nd, 1896, under s. 14 of the Conveyancing Act (post, p. 349), requiring execu- tion of repairs within three months. The notice not being com- plied with, the plaintiff" issued a writ on January 14th, 1897, claiming possession and rent up to December 25th, 1896. It was held by the Court of Appeal that the claim of rent was no Avaiver, and that the plaintiff" Avas entitled to possession, inasmuch as (1) the breach being continuous, he could rely on the breaches between December 25th and January 14th, and (2) the premises being in the same disrepair at the commencement of the action as at the giving of the notice, the notice was sufficient. A distress and continuance in possession may be a waiver of a forfeiture existing at the time (.s) ; but a distress is only an acknow- ledgment of a tenancy to the day of the distress, and a waiver of any forfeiture to that time {t). Where the plaintiff, after the service of a writ in ejectment for non-paj-ment of rent, distrained for rent which subsequently became due ; and by the notice of distress stated that such distress was made without prejudice to the year's {k) Williams V. BartJiolomcu; 1 Bos. &!'. 326 ; 4 R. R. 81. (l) Cole Ejec. 409. (m) Doc d. Baker v. Jones, 5 Exch. 498. (n) Doc d. Muston v. Gladwin, 6 f^). B. 9.53, 956 ; Pcnniall v. Hurhorne, 11 Q. B. 368, 374 ; Hyde v. Watts, VI J\l. & W. 254 ; 1 D. & L. 479 ; Doc d. Flower v. Peck, 1 B. & Ad. 428. (o) Doc d. Ambler v. Woodhridije, 9 B. & C. 376. {}-)) Docd. Ilankin v. Brindlcy, 4 B. & Ad. 84 ; Doe d. Baki:r v. Joncii, 5 Exch. 498, 505. (5) Fryett d. Harris v. Jeffreys, 1 Esp. 393 ; Cole Ejec. 409. (;•) Pcnton v. Barnett, [1898] 1 Q. B. 276 ; 67 L. J., Q. B. 11 ; 46 W. R. 33, and p. 35], infra — C. A., rever-sing Ridley, J., who had followed Bevan v. Barnett, 13 T. L. R. 310. (s) Doc d. Taylor v. Johnson, 1 Stark. 411 ; 18 R. R. 791 ; Zoucli d. Ward v. WiUingalc, 1 H. Blac. 311 ; 2 R. R. 770. (t) Doc d. Flower v. Peek, 1 B. & Ad. 428 ; Ward v. Daii, 4 V>. Ik, S. 337 : 33 L. J., i}. B. 54 ; ,S'. C. in error, 5 B. & .S. 359. Sect. 5. — Forfeituee (Waiver of). 345 rent due on the 'loth of March, and for which ejectment proceedings Ch.VIII. s. 5. were then pending : it was hekl, that such distress did not operate ,^°/-(^'^'"J.. ir o '' A [If (lifer oj). as a waiver of the ejectment {u). A forfeiture incurred by breach of a covenant to repair generally, Breach of Coven; repair. is waived by a notice given by the landlord, under a special covenant j.g j that he should enter and do the repairs, and distrain for the expenses {x). A forfeiture, b}' omission to repair after notice, is suspended but not waived by an agreement to allow further time to repair (?/). When the landlord does any act amounting to a con- structive eviction of the tenant, he cannot maintain an ejectment for a forfeiture for not repairing during the continuance of such eviction(^). The acceptance of rent with knowledge of a written sub-letting for Of Covenant a time certain is a waiver of a forfeiture for the breach of a covenant not to sub-let, and the breach is not a continuing breach, although the covenant be that the lessee " will not permit any person to occupy " ((0- If a lessee exercise a trade on the demised premises by which his Of Covenant lease is forfeited, the landlord does not, by merel}' lying by and q,^ Trade, &c. witnessing the act, waive the forfeiture {h), as some positive act of waiver, as by receipt of rent ic), is necessary; but if lie permit the tenant to exj^end money in improvements, it would seem that it is evidence to be left to a jury of his consent to the alteration of the premises {d) ; and if a lessor after a forfeiture advise a person to purchase the term of his lessee, he cannot maintain an ejectment for a forfeiture against such purchaser ; but he may do so if the party have an interest, viz. an annuity secured on the premises, and the advice is merely " to take to them " (e). Where land was demised with a covenant by the lessee to build To build and complete thereon houses within a year, and a proviso that if he did not, the lease should be void ; the houses not being completed, it was held, that the forfeiture was not waived by the steward of the lessor having permitted the lessee to employ workmen in completing the houses for a short period after the forfeiture (/'). A. demised land with a covenant by the lessee to finish certain houses thereon, and with a power of re-entr}^ in case of default, and {u) Bailey v. Mason, '2, Ir. Rep., X. S. premises in a particular -way. Per Brani- 582. Avell, L.J., in Lawrlc v. Lees, L. E,.. 14 {x) Doc d. Reutzcii v. Lewis, 5 A. & E. Cli. D. at p. 262. 277 ; Roe d. Goatlcy v. Paine, 2 Camp. {h) Doe d. Slieppard v. Alien, .3 Taunt. 520. 78 ; 12 R. R. 597. (?/) Roe d. Rankin v. Brincllcy, 4 B. & (c) Griffin v. Tomlcins, 42 L. T. 359. Ad. 84. [d] Doc d. Shcppard v. Allen, ubi sup., {z) Pellatt V. Booscy, 3 L. J., C. P. 281. per :\Iaustield, C.J. {a) Walrond v. Hawkins, L. R., 10 {c) Doed. Sorcx. Eykins,! C. k V. loi ; C. P. 342 ; 44 L. J., C. P. 116 ; 32 L. T. Ry. k, Moo. 29. 119. It is doubtful whether the principle (/) Doe d. Ld. Kensington v. Brindlcy, (jf this case would be held to apph^ to the 12 Moo. 37. case of a covenant not to use the demised 346 Chap. YIII. — Determination of Tenancy. Ch.VIII. s. 5. Forfeiture (Waiver of). 23 & 24 Vict, c. 38, s. 6. Actual Waiver does not operate as general Waiver. Express Waiver. Costs of express AVaiver. by another indenture betv/een A. and the plaintift', reciting that A, had made sub-leases of the land in question, A. assigned the land to the plaintiff subject to the sub-leases ; the court inclined to think that if the condition had been broken, the assignment, subject to the sub-leases, would have been a waiver of the forfeiture although the forfeiture was not known to A. (r/). By the Law of Property Amendment Act, 1860, 23 & 24 Vict, c. 38, s. 6, "where any actual waiver of the benefit of an}' covenant or condition in an}- lease on the part of any lessor, or his heirs, executors, administrators or assigns, shall be proved to have taken j)lace after the passing of this act in any one particular instance, such actual waiver shall not be assumed or deemed to extend to any instance or any breach of covenant or condition other than that to which such waiver shall specially relate, nor to be a general waiver of the benefit of any such covenant or condition, unless an intention to that effect shall appear." A forfeiture may be expressh' waived, and if the waiver be without consideration, or the right of re-entr}' arise on a lease by deed, it would seem that the waiver should be by deed. TJie Conveyancing Act, 1892, 55 I'^o 56 Vict. c. 13, s. 2, provides for the costs of an express waiver as follows : — A lessor shall be entitled to recover as a debt due to him from a lessee, aud in addition to damages (if an}') all reasonable costs and expenses properly incurred by the lessor in the employment of a solicitor aud sur- veyor or valuer, or otherwise in reference to any breach giving rise to a right of re-entry or forfeiture which at the request of the lessee is Avaived by the lessor by ivritinfj under his hand. It is submitted that this enactment does not dispense with a deed where a deed is required at common law as above stated, but the point is a doubtful one. Equitable Eelief. Sect. 6. — Ilelief arjainst Forfeiture. (a) ThcLatr before the ConveijaneiiKj Act. An unqualified proviso for re-entry in case of breach of any covenant has long been usually inserted as a common form in leases, and the courts of law, though " leaning against forfeiture," invari- ably gave effect to such proviso upon a breach being clearly proved, however great the hardship to the lessee {]i). Courts of equity were, therefore (before the Judicature Acts), frequently (/) applied to for ((/) Hunt V. Bishop, 8 Exch. (575 ; Hunt V. Ilcmnanf, 9 Exch. 63fi. !_-. (h) See Doe v. Gladwin, 6 (,>. B. at at jip. 485 et seq. p. 961. (/) See the wliole series of cases up to 847 reviewed in " Piatt on Leases," Vol. 2, Sect. 6. — Eelief against Forfeiture. 347 relief by injunction to restrain actions of ejectment. In the case Ch.VIII. s. 6. of the breach of the covenant to pay rent, relief was granted from Relief agmmt ^ -I " " _ Forfeiture. very early times, the statute 4 Geo. 4, c. 28, only regulating the ^ mode of granting the relief, and not originating it (/t). As for forfeiture by other breaches, the early cases are not quite uniform. They will be found reviewed by Lord Erskine in Sanders v. Xo Equitable Pojjc {!), and by Lord Eldon in Hill v. Barclay (m), and in Reynolds ^'^^jifi^p' V. Pitt (n). Li Sanders v. Pope, Lord Erskine granted relief against Breach. forfeiture of a public-house lease incurred by not laying out a par- ticular sum in repairs within a given time, and declared the result of the prior authorities to be that the court had jurisdiction to grant relief in all cases where full compensation could be made, although the breach might have been wilful. But in Hill v. Barclay, Lord JliU v. Eldon, though distinguishing Sanders v. Pope(o}, distinctly dis- ""^ "if- approved of the doctrine that I'elief could be given in case of a wilful breach, and refused relief in a case of non-repair in which the landlord had given a notice which had not been complied with. But, as was pointed out by Stuart, V.-C, in Bamford v. Creasy {})), Lord Eldon expressly recognized the exceptions in case of accident or surprise, and accordingh' relief was granted in a case (q) where it appeared that out of twenty-two items of repair twent)' had been proceeded with, and fourteen completed, and that the repairs had been partially delayed by the weather ; Stuart, V.-C, mentioning " as an equity always recognized " the equity of a tenant who has bound himself b}' a covenant to repair, and who can show to the court equitable circumstances sufficient to entitle him either to a relief from a strict performance of the lease, or to ensure him against a forfeiture by reason of the neglect to perform them. The rule of Hill v. Barclay was recognized in Gregory x. Wilson (.'■) by Turner, V.-C, in refusing to grant specific ^performance of an agreement for a lease. In Nokes v. Gibbon (s), Kindersley, V.-C, refused relief where the breach consisted in a failure to construct certain drains, and in Job v. Banister (t), where a lease was granted with a covenant for perpetual renewal by the lessor, provided the lessee's covenants should be kept. Wood, V.-C, refused to compel the lessor to renew or to restrain him from ejecting the lessee for breaches of covenant to repair and insure, although the lessee had expended large sums of money on the premises, and their value was (Z.-) Green v. Bridges, 4 Sim. 96. this case the lessor had obtained judgment (l) Sanders v. Pope, 12 Ves. 262. by default in ejectment. (?«.) mil V. Barclay, 18 Ves. 56; 11 \q) Bargcnt \. Thompson, 4 Gitf. 473. R. K. 1^7. {v) Gregory v. Wilson, 9 Hare, 683. (rt) Bctjnolds V. Pitt, 19 Ves. 134. {s) Xokcs v. Gibbon, 26 L. J., Ch. 433. (a) Sanders v. Po2Je, 12 Ves. 262. (t) Job v. Banister, 6 K. & J. 374. (2)) Bamford v. Creasy, 3 Gift'. 675. In 348 Chap. VIII. — Deter:mination of Tenancy. Ch.VIII. h. 6. much increased, the lessee losing about 5,0001. for a breach of Relief arjaimt covenant wliich might be amply remedied by 500L Forfeiture. ^ ^ -^ / - In one case, however — subsequent to Hill v. Barclay — Lord Eldon granted relief against an ejectment for non-repair brought by the committee of a lunatic, on the principle that harsh proceedings would not be for the benefit of the lunatic's estate («) ; but there does not seem to be any direct authorit}' upon the question how Trustees. far trustees neglecting to take advantage of a forfeiture would be protected by the court. Result of The result of the modern cases before the Conveyancing Act Modern Cases appears to be that accident and surprise afford the only instances in before Conv. i • i t ,■ • i _£• i n n • i Act. which reliei was given, and tliat tlie tact tliat a landlord gained ever so large an impr(n'ed value by insisting on the forfeiture was not taken into account. Stututorv i'he covenant to insure is one which from its nature ma}' be Relief against |)i-oken witbout producing the slightest injury to the reversion, and Failure to i ^ rj j .. insure. yet a court of law allowed a lessor to re-enter on the smallest breacli of it (.r). And for a long period no relief could have been obtained in a court of equity against an ejectment for a forfeiture by not insuring (?/), unless there had been fraud or misleading on the part of the lessor {z). But b}^ sects. 4 to 9 of the Law of Property Amend- ment Act, 1859, 22 \- 23 Vict. c. 35, which sections are now repealed and superseded by the Conve3'aiicing Act, 1881, power was given to a court of equity to relieve in a case where no loss had happened, and the breach had been committed without fraud or gross negligence, and there was an insurance on foot at the time of the application to the court. The court was required to direct a record of the relief having been granted, and had not power to relieve the same person more than once in respect of the same covenant or condition, nor to grant any relief where a prior forfeiture had been already waived out of court in favour of the person seeking the relief. By the Common I^aw Procedui-e Act, 1860, 23 <^' 24 Vict, c. 126, this relief might be granted by a court of law. (b) llcUef against Forfeiture, for Jireaeh of Covenant other tJian for Jicnt, inider the Conrei/aneinfi Act. Except as above stated, that is, except in the case of non-payment of rent, and failure to insure, and except in rare cases of accident and surprise, no relief against forfeiture could be given until the year 1882. Tlie Conveyancing and liaw of Property Act, 1881, (it) Ex jmrtc Vaughan, I Turn, k Kuss. (y) IVhitc v. Warnci; 2 Meriv. 459; 434. Green v. Bridges, 4 Sim. 96, cited 6 Q. 15. (if) Doc V. Gladwin, 6 i}. V>. 9r);3 ; post, 9(51 ; Gregory v. JVilson, 9 Hare, 683. Chap. XYll., Sect. 1. (r) J\Icvk v. Carter, 4 Jur. N. S. 992. Sect. 6.- — Eelief against Forfeiture (Conv. Act, 1881). 349 44 iV: 45 Vict. c. 41, which by sect. 2 took effect from and after the 31st December, 1881, by s. 14 (1) restricts the landlord's right of forfeiture for breach of covenant otJtcr titan for rent, and ('2) empowers the High Court to " relieve " against its exercise in the following general, retrospective, and compulsory terms (o) : — (1) A right of re-entry or forfeiture under any proviso or stipulation in a lease, for a breach of any covenant or condition in the lease, shall not be enforceable, by action or otherwise (6), unless and until the lessor serves on the lessee a notice (c) specifying the particular breach complained of, and, if the breach is capable of remedy, requiring the lessee to remedy the breach, and, in any case, requiring the lessee to make compensation in money for the breach, and the lessee fails, within a reasonable time there- after, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach. (2) Where a lessor is proceeding, by action or otherwise, to enforce such a right of re-entry or forfeiture, the lessee may, in the lessor's action, if any, or in any action bi-ought by himself, apply to the court {d) for relief; and the court may grant or refuse relief, as the court, having regard to the proceedings and conduct of the parties under the foregoing pro- visions of this section, and to all the other circumstances, thinks fit ; and in case of relief may grant it on sucli terms, if an}', as to costs, expenses, damages, compensation, penalty, or otherwise, including the grant of an injunction to restrain any like breach in the future, as the court, in the circumstances of each case, thinks fit. (3) For the purposes of this section a lease includes an original or derivative under-lease, also a grant at a fee farm rent, or securing a rent by condition ; and a lessee includes an original or derivative under- lessee {e), and the heirs, executors, administrators, and assigns of a lessee, also a grantee under such a grant as aforesaid, his heirs and assigns ; and a lessor includes an original or derivative mider-lessor, and the heirs, executors, administrators, and assigns of a lessor, also a grantor as afore- said, and his heirs and assigns. (4) This section applies although the proviso or stipulation under which the right of re-entry or forfeiture accrues is inserted in the lease in pursuance of the directions of any act of parliament (/). (5) For the purposes of this section a lease limited to continue as long only as the lessee abstains from committing a breach of covenant shall be and take effect as a lease to continue for any longer term for which it could subsist, but determinable by a proviso for re-entry on s\ich a breach. Ch.VIII. s. 6. Relief ar/ainst Fo7'feitHrc. Forfeiture not enforceable without Notice and faihire to Compensate. Relief by Court against Forfeiture. [See p. 355.] ' • Lease '" includes under-lease^ &c. Act of Parliament. Length of Term. («) See Greenfields. Hanson, 2 T. L. E.. 876, as cited by North, J., in Lock v. Pearce, infra {d). (b) E.(j., by peaceable re-entry, without action. (c) By s. 67 of the Act, infra, p. 355, the notice must be iu writing, and niaj' be addressed to the lessee by that designation, and served either by leaving it at the last place of abode, or by sending it in a regis- tered letter by post, addressed to the lessee by name. {(1.) That is, by s. 2 (xviii.), and s. 69 (1) of the Act, the Cliancery Division of the High Court ; but the Queen's Bench Division has jurisdiction to relieve iu an action before it. The ap])lication cannot be made on originating summons, see Loch v. Pearce, [1892] 2 Ch. 328. (e) See, further, Couveyaucing Act. 1892, s. 4, post. (/) See, e.rj., Settled Estates Act. 1856, 19 & 20 Vict. c. 120, s. 32 ; 10 Geo. 4, 0. 50, s. 27; 8 & 9 Vict. c. 124. 1350 Chap. VIII. — Determination of Tenancy. Ch.VIII. .s. 6. Relief (ujabist Forfeiture. For assign- ment without licence, bank- xuptcy, &c. Repeal. Non-payment of Kent. Section retro- spective and compulsory. Effect of s. 14 •of Conv. Act, 188]. i^otice of intention to re-enter. Ap])lifation to Court for relief. Relief outside section, on general •equitable grounds. (6) This section does not extend — (i) To a covenant or condition against the assigning, under-letting, parting with the possession, or disposing of the land leased (^); or to a condition for forfeiture on the bankruptcy (A) of the lessee, or on the taking in execution of the lessee's interest ; or — • (ii) In case of a mining lease {i) to a covenant or condition for allowing the lessor to have access to or inspect books, accounts, records, weighing- machines, or other things, or to enter or inspect the mine or the Avorkings thereof. (7) The enactments described in Part I. of the second schedule to this act (k) are hereby repealed. (8) This section shall not affect the law relating tore-entry or forfeittire or relief in case of non-payment of rent. [See p. 356, infra.] (9) This section applies to leases made either before or after the commencement of this act, and shall have eft'ect notwithstanding any stipulation to the contrary. The effect of this section is first to interpose in favour of the tenant the requii'ement, which did not exist at common law, that the landlord shall, before proceeding to enforce a supposed right of re-entry, give fair notice of his intention to do so, in order that the parties may settle the matter between themselves, without any resort to the court ; and secondly, in case of the parties so failing to settle the matter, to allow tlie tenant (not the landlord, whose course will be, if he wislies to push the nuitter to extremit}', to decline to be satisfied with the compensation otiered) to apply for an adjustment of differences to a court having the most absolute and comprehensive discretion. The landlord's right is not taken away, but only modified (/)• It seems from Barvoic v. Isaacs that the section does not form an exhaustive code as to relief against forfeiture, but that relief can still be given, on general equitable grounds, in cases not comprehended by the section. In that case the lessee's solicitor's clerk had omitted to obtain the consent of a lessor to a sub-lease, and the court held, ui)()n the lessor bringing ejectment for breach of covenant not to sub-let without consent, that the lessees were responsible for their solicitor's negligence, and that the case W'as not a proper one for {(j) See Barrow v. Inaacs, infra, and Chap. XVII., Sect. 2, post. (A) See ]). 3.53, post. Hy s. 2, siib-s. (xv.), of the act, "bankruptcy incdudes liquidation by arrangcnient, and any other act or ])roceeding in law liaving, under any act for the time being in force, eJfects or results sinular to those of bank- ruptcy." A "deed of arrangement " luider the Deeds of Arrangement Act, 1887, 50 & f)l A'ict. c. 57, may be an act of liankruptcy : see s. 17 of that act. (i) By s. 2, sub-s. (xi.) of the act "a mining lease is a lease for mining jnirposes, that is, the searching for, winning, work- ing, getting, making merchantable, carry- ing away, or ilis])osing of mines and minerals, for pur|)oses connected there- with, and includes a grant or licence for mining pnrposes^ '' (/i) See the effect of these enactments (22 k 23 Vict, c, 35, ss. 4 to 9, and 23 & 24 Vict. c. 126 (C. L. P. Act, I860), s. 2), wliich relate to relief against forfeiture for non-insurance, p. 348, ante. (/) See Crcnivcll v. Jkividsoii, iJ6 L. T. 811. Sect. 6. — Relief against Forfeiture (Conv. Act, 1881). 351 Rdlef afjainst Forfeiture . relief ; but it appears to have been assumed throughout that in a (-^h.YIII. s. 6. proper case relief might have been granted {m). It has been laid down that the landlord's notice under sub-s. 1 ^^ . . Decisions on must expressly require the tenant to remedy the breach complamed «. 14 of of (») ; but that a notice is not bad for not requiring compensation '^''^^"'- ^^*- in money (0), that relief cannot be granted under sub-s. 2 where the landlord has actually re-entered (jj), that although no notice may have been given, the court has an absolute discretion to refuse relief (5), and that for relief to be grantable, it is not necessary that it should have been claimed in the defendant's pleading (r). In the case of a public-house lease, Charles, J., expressed his readiness to grant relief for the breach of a covenant not to endanger the licence (•§). It was held by North, J., in Fletcher v. Nolces (t) that the notice Form of ought to be such a notice as will enable the tenant to understand " ] ' o ... J'/ctc/icr V. with reasonable certainty what it is that he is required to do, and so Xokes. distinct as to direct the attention of the tenant to the particular things of which the landlord complains in order that the tenant may have an opportunity of remedying them before an action for forfeiture is brought against him. In that case the lease was of six houses for 35 years, at a yearly rent of 42/., and contained a covenant amongst others to keep the premises in good condition and complete tenantable repair, with a proviso for re-entry on an}- breach of any covenant. The notice was that the tenant had broken the covenants for repairing the inside and outside of the houses, and was required to repair the said houses in accordance with the said covenants forthwith, and to pa}' 2.01. as compensation for breach and expenses. The notice was held bad for not indicating in which of tlie houses default had been made, or whether it had been made on all of them, but mainly on the ground that if the plaintifi" had proceeded for a forfeiture before the passing of the Act of 1881, he would have had to give particulars of breaches, and that the 14th section was intended to place the tenant in a better position than he was in before. Subsequently, in Petiton v. Barnett (tt), it was observed by Collins, L.J., that " the words ' particular breach ' ought to be (ra) Barrow v. Isaacs, [1891] 1 Q. B. 417 ; 60 L. J., Q. B. 179 ; 64 L. T. 686 ; 39 AV. R. 338— C. A. (n) North Loiulon Land Co. v. Jaques, 2.2 W. R. 283 ; 49 L. T. 659 (relief granted for failure to complete a house within a given time). (o) Lock V. Pcarce, [1893] 2 Ch. 271 ; 62 L.J., Ch. 582 ; 68 L. T. 569 ; 41 W. R. 369— C. A. ili) Rogers v. Rice, [1892] 2 Ch. 170 ; 66 L. T. 640 ; 40 W. R. 489— C. A. ; and see Quilter v. Maplcson, L. R., 9 (^>. B. D. 675, C. A. {q) Scott V. Matthevj Brow7i and Co., 51 L. T. 746 (relief refused). (»•) Mitchison v. Thompson, 1 C. & E. 72 (relief granted for non-repair, though premises in very dilapidated condition). (s) Fleetwood v. Bull, 23 Q. B. D. 35, and p. 174. ante. (t) Fletcher v. Nokes, [1897] 1 Ch. 271 ; 66 L. J., Ch. 177 ; 76 L. T. 107 ; 45 W. R. 471 ; 61 J. P. 232. {tt) Penton v. Barnett, [1898] 1 Q. B. at 28], and see p. 344, ante. For form of notice, see Appendix C, sect. 15, post. 352 Chap. YIII. — Detekmination of Tenancy. Ch.VIII. 8. 6, Relief against Forfeiture. Form of Notice of Intention to Re-enter — contd. Continuing Breach. Section 14 of Conv. Act applicable to Agreement for Lease. Stcain v. Ay res. Conveyancing Act, 1892, Relief to sub-lessee. Burt V. Gray, construed according to the obvious intention of the Legislature, which was that the tenant should be informed of the particular con- dition of the premises which he was required to remed}' ; that the expression ' breach ' means the neglect to deal with the condition of the premises as so pointed out, and not merely failure to perform the covenants of the lease ; and that the common sense of the matter is, that the tenant is to have full notice of what he is required to do." In the same case it was, as we have seen (ante, p. 344), held by the whole court that in the case of a continuing breach, a second notice need not be given in respect of non-repair existing after the expiration of the time specified in the notice. It was ruled by lluddleston, B., in CoatsirortJi v. Johnson {x), that the section does not apply to an agreement for a lease, but the point was expressh' left open in the Court of Appeal (?/), which subse- quentl}^ held in Swain v. Ayres {z) that if the section applies to an agreement for a lease, it apjDlies only to an agreement of which a decree for specific performance would be granted, and as such a decree is not granted if the covenants in the intended lease have been broken («), and the covenant for repair had been broken in the case before them, the court held that the section did not ai)ply, and that no notice was necessary. It is conceived that the Act of 1881 of itself applies to all agreements for leases of which specific per- formance would be granted and to no others. But however this may be, it is now expressly provided by s. 5 of the Conveyancing Act, 1892, 55 .V 56 Vict. c. 13, that in s. 14 of the Act of 1881, as amended by that act, " lease " shall include an agreement for a lease where the lessee lias become entitled to have liis lease gixinted, slyk} so of an under-lease. It is submitted that the words " but for the forfeiture sued upon " ought to be understood as following tlie word "entitled," inasmuch as the committal of an act of forfeiture is one of the recognized grounds for the refusal of a decree of specific performance (/>). It was held in Burt v. Grai/ that relief is not grantable to a sub-lessee of part of the demised premises, and, notwithstanding the definition of sub-s. 3, that "lessee" includes "an original or derivative under-lessee," it was clearly intimated, though not expressly held, that relief is not grantable even to a sub-lessee of (.f) Contsworth v. Johnson, 54 L. T. 520, " on further consideration." {y) See per Lord Esher, M.l!., and Lopes, L.J., 54 L. T.,at pp. 523 and 524 ; 55 L. J., Q. B. at ].. 22.'3. (s) Swain v. Ayres, 21 Q. H. I). 289 ; 57 L. J., Q. B.'428 ; 36 W. R. 798— C. A., aflirniing Cliarles, J. ; and sec per Kekewicli, J., in IStrmvj v. Utrinijcr, 61 L. T. 470. {a) See Hill v. Barclay, 18 Yes. 63, 11 R. R. 147. {h) See Lewis v. Bond, 18 Bcav. 85, and ante, Chap. IV., Sect. 5. Sect, 6. — Eelief against Fokfeiture (Con v. Act, 1892). 353 the whole of the demised premises, on the ground that it was not Ch.VIII. s. 6. intended by the act to create a privity where there was no privity Relief ay ainst -, n , s " Forfeiture. beiore (c). But the effect of Burt v. Graij is got rid of by s. 4 of the Convey- Special ancing Act, 1892, 55 & 56 Vict. c. 13, which expressly protects Sub-Tellee by sub-lessees, — of a part as well as of the whole — ^as follows : — section 4 of the Convey- Where a lessor is proceeding by action or otherwise to enforce a right of ^"•^j^g -^^ct, re-entry or forfeiture under any covenant, proviso, or stipulation in a lease, the court may, on application by any person claiming as under-lessee any estate or interest in the property comprised in the lease, or any part thereof, either in the lessor's action (if any), or in any action brought by such person for that purpose, make an order vesting for the whole term of the lease, or any less term, the property comprised in the lease or any part thereof in any person entitled as under-lessee to any estate or interest in such property upon such conditions, as to execution of any deed or other document, payment of rent, costs, expenses, damages, compensation, giving security, or otherwise, as the court in the circumstances of each case shall think fit, but in no case shall any such under-lessee be entitled to require a lease to be granted to him for any longer term than he had under his original svib-lease. This section, which is not a mere amendment of s. 14 of the Act of 1881, but an independent enactment (r?), extends to cases of for- feiture, as for bankruptcy ((?) or assignment without licence (/), in which the court has no power to relieve the lessee himself. The sub-lessee nia}^ claim a vesting order by counter-claim and defence. Both the granting of the relief and the terms seem to be in the dis- cretion of the court, but Charles, J., has doubted whether the court has jurisdiction to raise the rent((/). The jurisdiction to relieve a sub-lessee against forfeiture arising Assignment from the breach by the lessee of the covenant against assignment ^y^^'^°'^i^ . . . . . licence by without licence, is undoubted, but it is clearly discretionary, and lessee, Relief must be exercised with caution and sparingl)'', and the sub-lessee ac^ainst ^ asking for its exercise must show that he is blameless and has taken Foi'feiture for, all precautions which a reasonably cautious and careful person n'^T^J' would take. Where, therefore, the defendant purchased a sub-lease under a contract which gave him no right to call for the title of the lessee (so as to be barred by s. 3 (1) of the Conveyancing Act, 1881, from calling for it), who had covenanted not to assign without licence, and he purchased with the intention of expending money on the (c) B%iH V. Gray, [1891] 2 Q. B. 98 ; {g) Hiqhgate School v. Sewell, [1893] 2 60 L. J., Q. B. 664 ; 65 L. T. 229 ; 39 Q. B. 254 ; 62 L. J., Q. B. 476 ; 69 L. T. W. R. 429, per Mathew and Williams, JJ. 118 ; 11 W. R. 637 ; 5 R. 301. In this {d) Imray v. Oakshclte, [1897] 2 Q. B. case the terms imposed were that the 218 ; 66 L. J., Q. B. 544 ; 76 L. T. 632; sub-lessee should ]>ay all rent due and 45 W. R. 681 — C. A. execute a deed with covenants with the (fi) Highgatc School v. Sewell, infra. lessor similar to those of the head lease. (/) Imray v. Oakshette, supra. L.T. 23 354 Chap. VIII. — Determination of Tenancy. Ch.VIII. s. 6. Melief against Forfeiture. Costs of Solicitor and Surveyor. Conveyancing Act, 1892, s. 2 (1). Kelief, witliin year, against Forfeiture for Bankruptcy, or Execution. Couv. Act, 1892, s. 2, sub-s. 2. premises, the court held that he had heen negligent in entering into such a contract as to be precluded from investigating the title, and that relief against a forfeiture by the lessee for breach of the covenant ought not to be granted to the defendant (//). The cost incurred by the lessor in consulting a solicitor and sur- veyor in respect of the preparation of the notice required to be served on the lessee, was held in Skinners' Co. v. Knight (i), not to be demandable as " compensation " under sub-s. 1 of s. 14 of the Act of 1881, but it was also held in Bridge v. Quick (A), that the principle of this case did not apply to cases witliin siib-s. 2 of the section so as to exclude the discretionar}' jurisdiction of the court to award such expenses in granting relief under sub-s. 2. Since, and obviously in consequence of these decisions, it has been enacted by s. 2 (1) of the Conveyancing, &c., Act, 1892, 55 & 56 Vict, c, 13, that, — A lessor shall be entitled to recover as a debt due to him from a lessee (l) and in addition to damages (if any) all reasonable costs and expenses properly incurred by the lessor in the employment of a solicitor and surveyor or valuer, or otherwise, in reference to any breach giving rise to a right of re-entry or foi'feiture, which at the request of the lessee is waived by the lessor by writing under his hand, or from which the lessee is relieved, under the provisions of the Conveyancing and Law of Property Act, 1881, or of this act. This section appears to affirm both the cases above referred to, so that (1) the lessor is barred of his right to re-enter if the lessee IDays compensation, exclusive of the expenses mentioned, and fails to remedy the breach within a reasonable time, Sec, but that (2) the court is bound, if it decrees relief, to award to the lessor the expenses mentioned, as a debt due to him. Sub-sect. 6 of s. 14 excludes from the operation of that section, as we have seen (ante, p. 350), " a condition for forfeiture on the bank- ruptcy of the lessee or on the taking in execution of the lessee's interest." This sub-section is amended by sub-s. 2 of s. 2 of the Conve3^ancing, &c.. Act, 1892, 55 & 56 Vict. c. 13, as follows : — Sub-section six of section fourteen of the Conveyancing and Law of Property Act, 1881, is to apply to a condition for forfeiture on bankruptcy of the lessee, or on taking in execution of the lessee's interest, only after the expiration of one year from the date of the bankruptcy or taking in execution, and provided the lessee's interest be not sold within such one year, but in case the lessee's interest be sold within such one year, sub-section six shall cease to be applicable thereto. (/(.) Imray v. Oakshettc, supra. (i) Skinners" Co. v. Kmqht, [1891] 2 Q. B. 542 ; 60 L. J., Q. B. 629 ; 65 L. T. 240 ; 40 W. K. 57— C. A., alf. Cliarles, J., 63 L. T. 698. {k) Bridge v. Quick, 61 L. J., Q. B. 375 ; 67 L. T. 54. (l) But not from a sub-lessee : Ki)id v. Nineteenth Century Building Society, [^\%9A'\ 2 Q. B. 226 ; 63 L. J., Q. B. 636 ;'70 L. T. 831 ; 42 W. R. 481 ; 9 K. 468— C. A, Sect. 6. — Relief against Forfeiture (Conv. Acts). 355 B}" sub-s. 3 of the same section, agricultural, miniiio-, public-house Ch.YIII. s. 6. and furnished house leases are excluded from the operation of Helief against sub-s. 2, as also is a lease of "any property with respect to which — -^ '— the personal qualifications of the tenant are of importance for nniiinff fur-' the preservation of the value or character of the propertv, or on nished house, ,,.,, IT 11 "iiT ^'^•> leases the ground ot neighbourhood to the lessor, or any person holding excluded from under him." ^ ' Act of 1892. The effect of this amendment is by no means obvious at first sight. When carefully read with sub-s. 6 of s. 14 of the Act of 1881, the effect of it ajjpears to be (1) to restrict the exclusion of s. 14 thus prescribed by sub-s. 6 thereof, during one year from bankruptcy or execution, (2) to abolish the exclusion as from the date of the sale of the lessee's interest within the year, but (3) after the year, if there has been no sale within the year to revive the exclusion, so as to allow the lessor, Avithout notice given, to re-enter either upon the trustee in bankruptc}' or his assignees. As to the service, kc, of the notice under sub-sect. 1, sect. 67 of Service of the Conveyancing Act, 1881, 44 & 45 Vict. c. 41, provides that— ^"*'''^- (1) Any notice required or authorized by this act to be served shall be in writing. (2) Any notice I'equired or authorized by this act to be served on a lessee or mortgagor shall be sufficient although only addressed to the lessee or mortgagor by that designation, without his name, or generally to the persons interested, without any name, and notwithstanding that any person to be affected by the notice is absent, under disability, unborn, or unascertained. (3) Any notice required or authorized by this act to be served shall be At place of sufficientlv served if it is left at the last known place of abode or business in abode ot party " served the United Kingdom, of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorized to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage, or, in case of a mining lease, is left for the lessee at the office or counting-house of the mine. (4) Any notice required or authorized by this act to be served shall also By post, in be sufficiently served, if it is sent by post in a registered letter addressed I'^gistereu to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting- liouse, and if that letter is not returned through the post office undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivei-ed. (5) This section does not apply to notices served in proceedino-s in the Proceedings court. " "1 Co'"''- The words "by action or otherwise'' in sub-s. 2 of s. 14 of the Construction Act of 1881, seem intended to include a peaceable re-entiy without g u of \ct'of action, and also to prolong the time within which the lessee may apply 1881. to the court to restrain the delivery of the writ of possession into 23—2 356 Chap. YIII. — Determikation of Tenancy. Ch.VIII. 8. 6. Relief mja'mut Forfeiture. Procedure by Originating Summons. Relief again.st Forfeiture for non-payment of Rent. Relief suminaril}', and either before or after trial. Relief refused within the six months. the hands of the sheriff. The words "injunction to restram " seem to apply to a breach of negative covenants onl3\ Procedure to obtain relief cannot be by originating summons {m). (c) Relief against Forfeiture for Non-ixiyment of Rent. The law relating to relief against forfeiture for non-payment of rent is expressly excepted from the operation of the 14th section of the Conveyancing Act by the 8tli sub-section. Prior to the Landlord and Tenant Act, 1730, 4 Geo. 2, c. 28, the tenant might at an indefinite time after he was evicted have filed his bill and been relieved against the eftect of the mere non-payment of rent (») ; but this statute, which is re-enacted in substance b}'' sect. 210 of the Common Law Procedm-e Act, 1852, confined the tenant to a period of six months after execution executed, within Avhich he might obtain relief, in order to relieve the landlord from the inconvenience of continuing liable to an uncertaint}' of possession from its remaining in the power of the tenant to offer him a com- pensation at ani/ time, in order to found an application for relief in equity, and to limit and confine the tenant to six calendar months after execution executed for his doing this(o). The 210th section of the Common Law Procedure Act, 1852, provides that unless the tenant proceed for relief in equit}" within six months after execution he shall be " barred and foreclosed from all relief or remedy in law or equit}'," the 211th that the tenant shall not have relief witboat payment of rent and costs, and the 212th that the tenant may stay proceedings at any time before trial, by paying the rent and costs. The 1st section of the Common Law Procedure Act, 1860, 23 & 24 Vict. c. 126, extends these provisions by allowing the court or a judge to give relief in a summary manner eitber before or after the trial up to and within the six months after execution executed. The original lessee must be made party to the proceedings if a mortgagee by sub-demise applies {})). A defendant against whom judgment had been obtained, in an action in which the plaintiff had been deprived of costs, might, under this section, obtain relief after trial upon payment of rent and costs of application for relief, without being required to pay the costs of the action (q). It may be inequitable to grant relief even Avithin the six months, the statute merely saying that no relief may be granted after the six (m) Lock V. Pearce, [1898] 2 Ch. 271 ; 62 L. J., Ch. 582 ; 68 L. T. 569 ; 41 W. R. 369 ; 2 R. 403. (n) Bmvser v. Colby, 1 Hare, 125. (o) JJucd. Hitchinsv. Lewis, 1 Burr. 619, per Lord Mansfield, C.J., and "Wilmot, J. And see Bowser v. Colby, 1 Hare, 109. {p) Hare v. Elms, [1893] 1 Q. B. 604 ; as to which and for tlie enactments, see more fully post, Chap. XXII., Sect. 2 (b). (?) Croft V. London and County Banking Co., 54 L. J., Q. B. 277, C. A. Sect. 6. — Belief against Forfeiture (Non-payment of Rent). 357 months. And relief was refused as inequitable in a case where the Ch.vIII. s. 6. landlord had been keeping up a colliery at great expense, and had Relief against agreed to re-let it to a new tenant who had incurred expense in plant and been let into possession, and the old tenant applied for relief just before the end of the six months (r). Relief, if applied for within six montlis, will extend to a case Relief against where there has been peaceable resumption of premises without piemises process of law, but no compensation can be granted in respect of the ^^ithout ■^ . . " . process 01 law, time during which the applicant has been kept out of possession (s). See further Chap. XXII., Sect. 2 (b), post. A mortgagee of a lease is entitled to relief if he be willing to pay Relief of rent and perform all covenants, except in the case where a third "^*^^ S^g*^^- party has acquired rights between the forfeiture and the application for relief {t) . Sect. 7. — Notice to Quit. (a) Xatuir and Operation of. The notice to quit which it is here proposed to consider is the Nature of certain reasonable notice required by law, or by custom, or by special Q^^it. agreement, to enable either the landlord or tenant, or the assignees or representatives of either of them, without the consent of the other, to determine a tenancy from year to year, or month to month, &c. The term is also applied to the notice given in exercise of an option to determine a lease, which is considered hereafter (»). Without such notice, or an actual or implied surrender {x) or merger {y), a tenancy of the above nature Avould continue in the tenant and his assigns or representatives ; and the immediate reversion would continue in the landlord and his assigns or representatives {z), until extinguished b}' the Statute of Limitations {a). The right to determine a tenancy from year to year by a notice to Special quit is a necessary incident to such tenancy: a stipulation against as to Notice any such notice being given by one party or by the other is repugnant *° ''^"i*- to the nature of the tenancy, and therefore void, and mere sur- plusage Qj). Thus, an agreement to let at a fixed yearly rental, and not to give notice to quit so long as the rent is paid, constitutes more than a yearly tenancy, and gives the tenant a right to stay in, (r) Stanhope v. Haioorth, 3 T. L. R. {x) Ante, Sect. 3. 34, C. A. affirming judgment below. {y) Ante, Sect. 4. (s) Howard v. Fanshaive, [1895] 2 Ch. {z) Maddon d. Baker v. White, 2 T. R. 581 ; 64 L. J., Ch. 666 ; 73 L. T. 77 ; 43 159 ; 1 R. R. 453. W. R. 645 ; 13 R. 663, per Stirling, J. [a) 3 & 4 Will. 4, c. 27 ; Doc d. Laml- {t) Newbolt V. Bingham, I'l L. T. 852 ; sell v. Gower, 17 Q. B. 589. 14 R. 526— C. A. (b) Doe d. Warner v. Broicnc, 8 East, (m) Tost, Sect. 8. 165 ; 9 R. R. 397. 358 Chap. YIII. — Determination of Tenancy. Ch.VIII. s. 7. so long as the landlord's interest continues and the tenant pays Nohceto Quit ^g^^ ^^^^ -j^j^g tenancy ma}^ generally be determined by half-a-year's Operation of). Hotice expiring at the end of the first or any subsequent year at the term {d), but the parties may expressly stipulate for a longer or shorter notice to quit than that usually required by law (e) ; or for a notice expiring at some other period of the tenancy than at the end of the first or some other year, ex. gr. at the end of any quarter (/) ; or at some particular quarter {g) ; or at any time of the year, upon the expiration of a certain specified previous notice {h). But as the power of determining the tenancy at any time of the year is generally attended with inconvenience to one or both parties, the language conferring such power must be clear and explicit (i). Therefore, on a letting from year to year " to quit at a quarter's notice," such notice must expire at the end of the first or some other year of the tenancy, and not at an}- other part of the year ; such stipulation merel}' substituting a three months' notice for the usual six months' notice (/.). It seems, that Avhere a " six months' notice " on either side is contracted for, a six lunar months' notice will be sufficient (/) . "Where a tenant is " alicays to be subject to quit at three months' notice," he will be deemed a quarterly tenant, and the notice to quit must expire with some quarter, and not at any other part of the year (m). Where premises are let at so much per quarter (not saying for what period), that creates a quarterly tenancy, and not a yearly tenancy at a rent payable quarterly (ii). So where premises are let not for any definite period, but the tenant is to give up possession at any time on one month's notice, that creates a tenancy from month to month (o). But where premises are let for an indefinite period, at a yearly rent, payable weekly, with power to determine the tenancy at three months' notice from any quarter day, that creates a yearly tenancy, determinable at the end of any quarter (jj). The parties to a demise may expressly stipulate that in a certain event the tenant may quit without any notice (^). An agreement for a (c) King's Leasehold Estates, Re, L. K., {k) Doe d. Pitcher v. Doncvan, 1 Taunt. 16 Eq. 521 ; 29 L. T. 288 ; 21 "W. R. 881. 555 -,2 Camp. 78 ; Brown w.Burtenshaw, 7 {d) Doc d. Clarke v. Smaridge, 7 Q. B. D. & R. 603. 957 ; Doe d. Flumer v. Mainby, 10 Q. B. (Z) Rogers v. Kingston-upon-Hull Dock 473. Co., 34 L. J., Ch. 165. (c) See, e.g., Rogers v. Kingston-upon- (m) Kemp v. Derrctt, 3 Camp. 510; 14 Hull Dock Co., 34 L. J., Ch. 165. R. R. 820. (/) Kempv. Dcrrett, 3 Camp. 510 ; 14 (n) Wilkinson v. Hall, 3 Bing. JN. C. R. R. 820 ; Red: v. Hcrstmonceaux, 7 508. B. & C. 551 ; Collctt v. CurUng, 10 Q. B, (o) Doc d. Landscll v. Gowcr, 17 Q. B. 785 ; Bird v. Defonvillc, 2 C. & K. 415, 589. 418, {p) Rex V. Inhhts. of Herslmonceaux, (/)) Doc d. Riggc v. Bell, 5 T. R. 471 ; 2 7 B. & C. 551 ; Overseers of Willesden, R. R. 642. app., Overseers of Paddington, resp., 3 (h) Doe d. King V. Grafton, 18 Q. B. B. & S. 593 ; Guardiam of Hastings Union 496 ; 21 L. J., Q. B. 276 ; Bridges v. v. Guardians of St. James, Clcrkenwell. Potts, 17 C. B., N. S. 314. 35 L. J., M. C. 65. (0 Cole Ejec. 31. (?) Bethell v. Blencowe, 3 M. & G. 119. i Sect. 7. — Notice to Quit (Nature and Operation of). 359 weekl}' tenancy of a house determinable by a week's notice, accom- Ch.VIII. s. 7. panied by a memorandum that the tenant might have the house until -^"i*^^ '" '^"'^J the landlord required it for the purpose of pulling it down, has been Operation of). held to be terminable by a week's notice, although the landlord did not require the house for the purpose of pulling it down (?•). An insufficient notice to quit given by the tenant, though assented Insufficient to by the landlord, will not determine the tenancy, nor operate as a Q^it'joes surrender on the expiration of such notice (s). A tenancy from year not become • Ti IT r sufficient by to year created by parol is not determined by a parol licence irom assent. the landlord to quit in the middle of a quarter, and the tenant quitting the premises accordingly, without the landlord taking pos- session (t). An agreement for a new lease upon different terms (not amounting to an actual demise) will not be sufticient, without a notice to quit, to determine a previous yearly tenancy (»). Upon the expiration of a notice to quit duly given by either party Effect of a the tenancy ceases, and, unless a fresh tenancy be afterwards created, jJ^Qti^Jg^g the landlord cannot distrain for subsequent rent, notwithstanding the Quit. tenant continues in possession for a year or more after the expiration of the notice (x). The remedy in such case is by action for use and occupation (i/), or for double value or double rent {z). (b) IVJien necessary. A notice to quit is necessary — 1. Where there is some express Whenneces- stipulation on the subject. 2. By local custom. 3. By the common ^^^"^'• law. Where there is any express stipulation as to the notice to be By express given by either party to determine the tenancy, such notice, whether '^^" ^ ^°"' more or less than that usually required bv law, must be given and will be sufficient (a). But less than the stipulated notice will be bad {h). Where a " six months' " notice on either side is to be given, it seems that a six lunar months' notice is sufficient (c). AYliere there is a special local custom regulating the notice to be By local given to determine the tenancy, and there is no express stipulation on the subject, such custom will be deemed part of the contract as (?•) Cheshire Lines Committee v. Lcvns, (t) Mollett v. Braync, 2 Camp. 103 ; 11 50 L. J., Q. B. 120 ; 44 L. T. 293, C. A. R. R. 676. (,s) Doe d. Hudlestone v. Johnstone, 1 (u) John v. Jenkins, 1 Cr. & M. 227 ; M'Clel. & Y. 141 ; Johnstone v. Hudlestone Jones v. Reynolds, 1 Q. B. 506. (parol notice), 4 B. & C. 922 ; 7 D. & R. (.«) Alford v. Vickery, Car. & M. 280. 41] ; 4 L. J., K. B. 71 ; 28 R. R. 505 ; {y) Chap. XIV., post. Doc d. Murrell v. Milward (notice in (s) Chap. XX., post, writing), 3 M. & W. 328 ; ^csseZZ V. ia?i(^s- [a,) Doe A. Green r. Baker, 8 Taunt. herg, 7 Q. B. 638. As to whether msuffi- 281 ; 19 R. R. 502 ; Doe d. Robinson v. eieut written notice, assented to in writing, Dohell, 1 Q. B. 806. will amount to a surrender, see per Bayley, {b) Doe d. Peacock v. Raffaa, 6 Esp. 4. J., in Johnstone v. Hudlestone, and per (c) Royers v. Kingston-vpon-Hull Dock Parke, B., in Doc d. Murrell v. Mihcard. Co., 34 L. J., Ch. 165. 360 Chap. VIII. — Determination of Tenancy. Notice to Quit {when Ch.VIII. s. 7. an implied term or condition thereof, and notice to quit must be given accordingly {d), but any express stipulation at variance v.^ith a custom will override it, as was held in a case where the lease pro- vided for six months' notice, and a Durham custom allowed a few days less than six months (e). The custom of the country is not admissible to prove that a notice to quit served on the 3rd of April is a good notice to quit by reason of the tenancy being a Michaelmas tenancy, but it must be proved b}" direct evidence that such is the case (/). By the Com- mon Law — General Rule. Time of Day for Quitting. Where a tenancy from year to year is created by express agreement, and there is no special stipulation or local custom providing for the determination of the tenancy, the usual notice to quit required by law, i.e. half-a-year's notice to quit at the end of the first or some other year of the tenancy, must be given {g). The same rule applies where a tenancy from 3'ear to year is implied by laic from the pay- ment and acceptance of rent, or from other circumstances (Jt), as where a person enters under a void lease (i). Similarly, where a tenant for a term of years holds over and continues to pay rent as before, which the landlord accepts (k) ; or where a lease becomes void upon the death of the lessor (a tenant for life), and the remain- derman accepts subsequent rent, whereby a new implied tenancy is created (/) ; an}' such new tenanc}' will be deemed to have commenced from the same day of the year as the original term, and the notice to quit should be given accordingly (m). The tenant is entitled to retain possession till midnight of the same day of the j'^ear on which the tenancy commenced ; a notice to quit at noon of such day is bad (ii). Notice to Quit The connnon law rule, that in all cases of yearly- tenancies, the turalHokUnU tenant is entitled to half-a-year's notice expiring at that period of Act. the 3^ear at which the tenancy commenced, is altered in favour of tenants of agricultural or pastoral holdings or market gardens by {d) Tyley v. Seed, Skin. 649 ; Roe d. Henderson v. Charnock, Peake, 6. As to ]iroof of Custom, see Doe d. Brown v. Wilkinson, Co. Lit. 270 b, note (228). (e) Travers v. Mason, 45 W. R. 77. (/) Hogg V. Norris, 2 F. & F. 246. {(f) Parkes d. Walker v. Constable, 3 Wils. 25 ; Right d. Flower v. Dnrhy, 1 T. R. 159 ; 1 R. R. 169 ; Doe d. Shaw v. Porter, 3 T. R. 13 ; 1 R. R. 626 ; Doc d. Martin v. Watts, 7 T. R. 8.5 ; 4 R. R. 387. {h) Doc d. Waiim v. Horn, 3 M. & W. .333 ; Doc d. Cater v. Somerville, 6 B. & C. 126, 132. {i) Doe V. Bell, 5 T. R. 471 ; 2 R. R. 642. As to whether an entry under an agreement for a lease constitutes a tenancy from year to year only, or gives a title to the lease, see Walsh v. Lonsdale, 21 Ch. D. 9, and Chap. IV., Sect. 1, ante. {k) Hyatt v. Griffiths, 17 Q. B. 570. See ante, 233. (/) Doe V. Watts, 2 Esp. 501 ; 7 T. R. 83 ; 4 R. R. 387. («i) Doe d. Jordan v. Ward, 1 H. Blac. 96 ; Doc d. Collins v. Wcllcr, 7 T. R. 478 ; 4 R. R. 496 ; Humphreys v. Franks, 18 C. B. 323. {n) Page v. More, 15 Q. B. 684. Sect. 7. — Notice to Quit (under Agricultural Holdings Act). 361 the 33rd section of the Agricultural Holdings Act, 1883 (j)), which Ch.VIII. .s. 7 doubles the length of notice required, by enacting that: — Where a half-year's notice, expiring with a year of tenanc}", is by law necessary and sufficient for determination of a tenancy from year to year, in the case of any sucla tenancy under a contract of tenancy made either before or after the commencement of this act, a year's notice so expiring shall by virtue of this act be necessary and sufficient for the same, unless the landlord and tenant of the holding, by writing under their hands, agree that this section shall not apply, ni which case a half-year's notice shall con- tinue to be sufficient ; but nothing in this section shall extend to a case where the tenant is adjudged bankrupt, or has filed a petition for a composition or arrangement with his creditors. Notice to Quit {under Ag. Hold. Act). A.f^ricultural Holdings Act, s. 33. One year's notice, unless section excluded. This section applies onl}" to the common case where a half-year's notice is necessar}^ b}- implication of law {q), and has no application to the case where a half-year's notice, much less where six months' notice (r), is expressly stipulated for {s). Such is the effect of Wilkin- son V. Calvert, decided upon precisely similar w'ords in sect. 51 of the repealed Agricultm-al Holdings Act, 1875, and oi Barloir v. Teal (t), £arloivv. decided upon sect. 33 of the Act of 1883 in a case where the stipu- lation in a contract of tenancy made in 1871, was " to hold from year to year, until six months' notice is given in the usual way ;" and in Barlow v. Teal all the members of the Court of Appeal intimated that (as it was put by Brett, M.E,.), sect. 33 " applies where there is no express stipulation as to the termination of the tenancy, and does not apply where there is an express stiioulation." The 41st section of the same act provides that on a tenancy from Notice under 3^ear to year a notice to quit, wdiich relates to part onh' of the holding, Hol(lin<^"^lct and would therefore be wholly bad at common law {u), shall be good to Quit Part as to such part if given with a view to the use of land for the erection °' of labourers' cottages, the providing of gardens for labourers, the planting of trees, the working of coal, " the obtaining of brick earth, gravel, or sand," the making of a watercourse or road, or other pur- poses therein enumerated, the tenant to be entitled to a proportionate reduction of rent. The notice must " so state," i.e. must state its purpose. The same section provides that " the tenant shall further be entitled at any time within tirenty-eiglit days after service of the notice to quit, to serve on the landlord a notice in writing to the {p) 46 & 47 Vict. c. 61. See this act set out at length Appendix A., post, and for its exact application, see p. 362, infra. {q) See Right d. Flower v. Darhi/, 1 T. K. 159 ; 1 R. R. 169 ; and the other ca.ses, ante {g). (r) Wilkinson v. Calvert, 3 C. P. D. 360 : 47 L. J., C. P. 679 ; 38 L. T. 813 ; 26 \V. R. 829, per Lord Coleridge, C.J. (s) See Id. (t) Barlow v. Teal, 15 Q. B. D. 501 ; 54 L. J., Q. B. 564 ; 54 L. T. 63 ; 34 W. R. 54, C. A. It will be observed, although it is not so stated in the judgments in that case, that the express stipulation need not be in writing. {u) Boed. Roddv. Archer, 14 East, 245 ; 12 R. R. 509. 362 Chap. YIIL — Determination of Tenancy. Ch.VIII. .s. 7. Notice to Quit {under Agri- cultural Hohl- ' ings Act) . Apjilication of Agricultural Holdings Act. Service of Notice to Quit uiulcr Agricultural Holdings Act. "What Tenan- cies are deter- minable by Notice at the End of the first Year. Twelve months certain. effect that be (the tenant) accepts the same as a notice to quit the entire holding, to take effect at the expiration of the then current 3^ear of tenancy ; and the notice to quit shall have effect accordingly." This last provision, which it is purely optional with the tenant to avail himself of, seems intended to give him the benefit of giving up the part of the holding to which the notice applies sooner than he would be entitled to do in the ordinaiy course of things ; for if the tenant should not avail himself of the provision the notice will be a "3'ear's notice, expiring with a year of tenancy" (in accordance with sect. 33), and not with the " current year." The Agricultural Holdings Act, 1883, 46 k 47 Vict. c. 61, by sects. 54 and 61 applies to the following and no other holdings : — ^^ Holdings, either icliolhj agricultural or icholly pastoral, or jiartly agricultural and jpartly pastoral, or ivliolly or partly cultivated as market gardens, held under a landlord for a term of years or for lives, or for lives and years, or from year to year, by a tenant holding no employment under such landlord.'' It is enacted by sect. 28 of the Agricultural Holdings Act, that " an}^ notice under this act" may be served by registered letter through the post ; but it is submitted that a notice to quit is not a notice under the act, and that sect. 33 merely lengthens the notice required at common law {x). A tenanc}' " from year to year so long as both parties please " is determinable at the end of the first, as well as of any subsequent year, unless in creating such tenancy the parties use words showing that they contemplate a tenancy for two years at least {y). But a tenancy created for "one year (^), and so on from year to year" until determined by three months' notice, has been held to be a tenancy for two years at the least, and not determinable by notice to quit at the end of the first year, but only by notice to quit at the end of the second or an}' subsequent year of the tenancy (a) ; whereas it had been previously ruled that a tenancy " for twelve months cer^rt«;i and six months' notice afterwards" might be determined by notice to quit at the end of the first year {h). A demise " not for one ye&v only, but from year to year," constitutes a demise for two years at ix) Seethe act, post, Appendix A., and for one instance out of many of a notice "under the act" see s. 7. A contrary opinion to that in the text is given in Roscoe on Evidence, ed, 16, at p. 1012. (ij) Doc V. Umariclge, 7 Q. B, 957 ; Doe V. Nainhij, 10 Q. B. 473. {z) In editions of this work prior to the 14th the word "certain" was printed by mistake after "one year." (a) Doe d. Chadborn v. Green, 9 A. &. E. 6.58 ; 1 P. & D. 454, distinguishing Tliowpson V. Maherlcy, infra, on the ground that the word "certain" occurred in that case, and in conforroity with Birch v. Wright, 1 T. R. 37 ; 1 R. R. 223 ; " and other cases." Doe v. Green must now be taken to be settled law. {h) Thompson v. Mabcrley, 2 Camp. 573, See also as to " certain," Brown v. Symons, 8 C. B., N. S. 208 ; 29 L. J., C. P._ 251 ; Lanijton v. Carleton, L. R., 9 Ex. 57. Sect. 7. — Notice to Quit (how long Notice requisite). 363 least (c) ; but a tenanc}^ for six months, and so on from six months to six months until determined by either party, is a tenancy for one year at least (r?). So a lease for three years, and so on from three years to three years, makes one term for six years (c). Such tenancy may be determined by a half-year's notice to quit expiring at the end of the first six years, or of any subsequent period of three years, but not at any other time ( /'). A demise for a " term of three years determinable on a six months' previous notice to quit, otherwise to continue from year to year until the term shall cease by notice to quit at the usual times " is a demise for three years certain, deter- minable only at the end of that period by six months' previous notice ; and if not then determined, a subsisting tenancy from year to year. Such a demise cannot be determined by a notice to quit at the end of the first or second of the three years (//). Prior to the Married Women's Property Act it was held that a husband could not maintain ejectment for his wife's lands, let from 3'ear to year with his express or imjjlied assent, without first giving due notice to quit (A). The effect of that act would seem to be that the notice to quit need be given in the wife's name only. An infant must give the same notice to quit as if he were of full age (i). A notice to quit is not rendered unnecessary by the death of the landlord (A), or of the tenant (0, nor by an assignment of the term {m), or of the reversion (n). But in all such cases notice to quit should be given by or to the person or persons for the time being legally entitled to the term, or to the reversion, as the case may be (o). Where notice to quit is duly given by the landlord, or other person for the time being legally entitled to the reversion, and he afterwards assigns his reversion, the assignee may avail himself of the notice (j)). So the churchwardens and overseers of a parish may avail themselves of a notice to quit duly given by their predecessors (q). A proper notice to quit given to the tenant or his assignee will operate against any subsequent assignee (r). (c) Dean d. Jacklin v. Cartwright, 4 East, 31. {d) Reg. v. Chawton, 1 Q. B. 247. (c) Hennings v. Brabason, 2 Lev. 45. (/) Cole Ejec. 35 ; Roc d. Brcc v. Lccs, 2 W. Blac. 1171 ; Hennings v. Brahason, 2 Lev. 45 ; Jones v. Nixon, 1 H. & C. 48. (g) Jones v. Nixon, 1 H. & C. 48 ; 31 L. J., Ex. 505 ; Broion v. Trumjjer, 26 Beav. 11. {h) Doe d. Leicester v. Biqgs, 1 Taunt. 367 ; 2 Id. 109 ; 11 R. R. 533. {i) Maddon d. Baker v. White, 2 T. R. 159 ; 1 R. R. 453 ;Z'ocd. Miller y. Nodon, 2 Esp. 530. {k) Maddon d. Baker v. White, 2 T. R. Ch.VIIL .s. 7. Notiee to Quit {when necessary) . 159 • 1 E. R. 453. (?) Doe d.' Shore v. Porter, 3 T. R. 13 ; 1 R. R. 626 ; Doe d. ffuU v. Wood, 14 JM. & W. 682. (ni) Doe d. Castleton v. Samuel, 5 Esj'. 173 ; 8 R. R, 845. (n) Birch v. Wright, 1 T. R. 378 ; 1 R. R. 223 ; Burrowcs v. Graclin, 1 D. & L. 213, 218. (t;) Cole Ejec. 35. (l) ) Doe d. Earl of Egremont v. Eoricood, 3 Q. B. 627. (q) Doe d. Higqs v. Terry, 4 A. & E. 274 ; Doe d. Hobbs v. Cockell, Id. 478. (;■) Doc d. Castleton v. Samuel, 5 Esp. 173 ; SR. R. 845. 1)}' Husband. By Infant. After Death or Assign- ment. Subsequent Reversioners may avail themselves o previous Notice. Notice by Tenant binds Assjrrnee. 364 Chap. VIII. — Deter:\iination of Tenancy. Ch.VITI. 8.7. Notice to Quit {when unnecessary). Demise for .specific Tei-m. Agreement for Lease for specific Term. "When Term limited till specified Event. "Where Notice to Quit is expressly dis- pensed with. (c) Wlioi unnecessary. "Where the contract of tenancy specifies the term or event upon which the tenancy is to determine, no notice to quit is necessary (,s) ; as where the demise is for one year {t) : or for any certain number of years iii) : or till a particular day (x). Similarly, if a tenant enter under an agreement for a lease for seven years, which lease is never executed, at the end of the seven years the tenancy from year to year, created by the payment and acceptance of rent during that period, determines Avithout any notice to quit (?/). But if there be an agreement for a lease of twenty-one years, determinable at the end of the first seven or fourteen years, the tenant can- not quit at the end of the first seven years Avithout giving any notice (z). If a term is granted which in the lease is limited b}' the happening of a certain event, the term will end on the happening of the event without any notice to quit being required. Thus where there is a lease or agreement for a lease " during the joint lives of A. and B.;" upon the death of either of them the term determines without any notice to quit (a) ; and where a house or part of a house is occupied by one of several partners " during the continuance of the partner- ship; " upon a dissolution thereof he ma}' be ejected without any notice to quit (/>), So where premises are occupied by a servant and his family as part of the remuneration for his services, whenever such service is determined, an ejectment may be maintained against the servant without notice to quit(c). And where an intended purchaser is let into possession until a given day on terms the same rule Avill apply (d). It may be expressly stipulated that the tenant maj' quit without notice, at any time, upon the hap})ening or discovery of a particular event or fact (which luqjpens), ex. gr. " if he finds anything that may at all lead him to suspect that there is any embarrassment in his landlord " (c). Where the tenancy is otherwise than yearly, and there is no local custom or special stipulation as to notice, it is very doubtful what (s) Right d. Flower v. Darhj, 1 T. R. 162; 1 K. K. 169. (0 Cobb V. Stokes, 8 East, 358, 361 ; 9 R. K. 464 : Strkkland v. Maxwell, 2 Cr. & M. 539. {u) Messenger v. Armstrong, IT. \l. 54 ; 1 R. R. 148 ; Rohcrts v. Uayivard, 3 C. & r. 432. {x) Doc d. Lecson v. Sayer, 3 Camp. 8. (y) Loc d. Tilt v. Stratton, 3 C & P. 164 ; 4 Bing. 446 ; Bcrreij v. Lindley, 3 M. & G. 498, 514 ; Due d. Duvcnish v. Moffatt, 15 y. Y). 257, 265 ; Tress v. Savacie, 4 E. & li. 36. (::) C'hap^}ian v. Towner, 6 JI. k AV. 100 ; and see Brown v. TrumjJer, 26 IJeav. 11. («) Doe d. Bromfield v. Smith, 6 East, 530. {b) Doe d. JFaifhmany. Miles, 1 Stark. 181 ; 16 R. R. 805 ; Doe d. Coliuvjhi v. Black, 8 C. & P. 464. (c) Doe d. JJugJus v. Corlelt, 9 C. & P. 494. {d) Doe d. Moore v. Lawdcr, 1 Stark. 308 ; Right d. Lewis v. Beard, 13 East, 210. [e) Bethcll V. Blencmce, 3 :\I. & G. 119. Sect. 7. — Notice to Quit (when unnecessary). 365 notice to quit is necessary. A notice corresponding with the period of tenanc}', ex. gr. a week's notice in case of a weekly tenancy, is clearly sufficient (/), but whether it is necessary is not settled. It was ruled by Parke, B., at nisi prius (_). Implied tenancies at will frequently change into tenancies from year to year, upon i^ayment of rent, kc. (q), in which case the usual notice to quit must be given. A tenant on sufferance is not entitled to any notice to quit, nor even to a demand of possession, before an ejectment can be main- tained against him (/•). But such tenancy will easily change into a tenancy at will, or into a tenancy from year to 3'ear, whereupon a demand of possession, or a regular notice to quit, will become necessary (s). If a man get into possession of a house to be let, without the privit}'^ of the landlord, and they afterwards enter into negotiations for a lease, but differ ui)on the terms, the landlord may maintain ejectment to recover possession of the premises without notice to quit (t). But possession should be demanded before action, to i)ut an end to any implied tenancy at will, arising from the negotiations («). A mortgagor who is suffered to remain in possession, or in receijit of the rents and profits of the property mortgaged, not being a tenant of the mortgagee, but in the nature of a bailiff to receive the rents, and thereout pay the interest, and keep the surplus for his own use (x), is not entitled to any notice to quit, nor even to a demand of possession, before ejectment (ij). Tenants from year to year of the mortgagor, whose tenancies com- menced before the mortgage, are entitled to the usual notice to quit {z) ; and tenants under h'a.sos are entitled to such notice as may be stipulated for in the lease under which they liold. But if the tenancy, whether b}' lease for any term however long, or from year to year, commenced after the mortgage, the tenants are not entitled to any notice to quit, nor even to a demand of posses- sion {a), unless a new tenancy has been created as between the (o) Doc d. Tomes v. Chambcrldinc, 5 M. & W. 14 ; Doc d. Milbvm v. Edyar, 2 Eing. N. C. 498 : Doe d. Jones v. Jones, 10 B. & C. 718 ; Doc d. Hall v. J road, 14 M. & W. 682 (•2nd point) ;Doed. Hollings- worth V. Stcnnett, 2 Esp. 737 ; 5 K. E. 769. (2i) See Doc d. Nieholls v. M'Kaaj, 10 B. k C. 721, and ante, 240. {q) Clayton v. Blakcy, 8 T. R. 3 ; 4 R. R. 575, and see ante, 231. {r) Doc d. Moore v. Laiaier, 1 Stark. R. 308 ; Doc d. Lceson v. Sayer, 3 Camp. 8 ; Doe d. Rohy v. Maisey, 8 B. & C. 767. (s) Cole Ejec. 38. (t) Doc d. Knight v. Qui(jly, 2 Camp. 505 ; 11 R. R. 780. («) Cole Ejec. 58. (.'•) Trent v. IIujU, 9 Exch. 14. (v) Doe d. Ilohy v. Maisey, 8 B. & C. 767 ; Doe d. Fisher v. Giles, 5 Bing. 421 ; 2 M. & P. 749 ; 7 L. J., C. P. 134 ; 30 R. R. 686 ; Doe d. S7iell v. To7n, 4 Q. B. 615 ; Doe d. JVilkinson v. Goodier, 10 Q. B. 957 ; Doc d. Garrod v. Olley, 12 A. & E. 481 ; and see ante, 246. [z) Doc d. Bowman v. Lewis, 13 M. & W. 241 ; 2 D. & L. 667. (ft) Keech v. Hall, 1 Doug. 21 ; 1 Smith, \j. C. ; Thunder d. Weaver v. Belcher, 3 East, 450 ; Doe d. Parker v. Boulton, 6 M. & S. 148. Sect. 7. — Notice to Quit (when unnecessary). 367 mortgagee and the tenant (b), or unless the 18th section of the Convej'ancmg Act (Chap. I., Sect. 29 h, ante), or the Tenants' Com- pensation Act, 1890, applies to their case. The Tenants' Compensation Act, 1890, -53 & 54 Vict. c. 57, seems to apply to the occupiers of land (c) only, and gives to such occupiers if occupying under a contract with the mortgagor, (whether made before or after the act) which is not binding on the mortgagee, in addition to rights to compensation (as to which see Chap. XX., Sect. 8, post) a right to six months' notice from the mortgagee before being deprived of possession otherwise than in accordance with his contract of tenancy with the mortgagor ; but this provision applies only where such contract is for a tenancy from year to year, or for not more than twenty-one years at a rack rent. According to the old authorities, notice to quit need not be given by or to a corporation aggregate where there has been no demise under seal, and either party ma}^ determine the tenancy at any time without notice (d) ; but the later view is that an implied tenancy from year to year is created by such a demise (e), whence it seems to follow that the ordinary half-year's notice to quit must be given. A notice to quit (when necessaiy) may be given by the steward of the corporation without his being authorized so to do under the common seal (/). If given to a corporation it must be directed to them, and not to their head officers {[/). Where the plaintiff claims b}' title paramount to the tenancy from year to j^ear notice to quit is unnecessary (/i). A disclaimer b}^ a tenant from year to year of the reversioner's title renders any notice to quit unnecessar}' (i). Cm. VIII. s. 7. Xotice to Quit (trhcn unneces- sary) . Application of Tenants' Compensa- tion Act. Corporations. Claim by Title ])araiiioant. Disclaimer. (d) By u-Jtom and to irhom given. A notice to quit may be given either by the landlord or by the By whom, tenant, or b}^ the authorized agent of either party (/x). The agent, Agents. who, if acting generally, may give the notice in his own name, but not if he is acting specially (/), ought to have sufficient authority Jones y. when the notice is given, or, at the latest, when it begins to operate : " ' {h) Doc V. Buckaell, 8 C. & P. 566 ; Doc d. Whittakcr v. Hales, 7 Biug. 322. (c) See the preamble, from wliich, it is siTbmitted, a "contrar}^ intention appears" within the meaning of s. 3 of the Interpre- tation Act, 1889, 52 & 53 Vict. c. 63, whereby "land" includes houses, &c. , " unless the contrary intention appears." (d) Finlay v. Bristol and Exeter E. Co. 7 Exch. 409. (c) Ecclesiastical Commissioners v. Mcr- ral, L. R., 4 Ex. 162 ; 38 L. J., Ex. 93 ; 20 L. T. 573 ; 17 W. R. 676. As to jiower, without seal, to demise from year to year, see Companies Clauses Act, 1845, s. 97 ; Companies Act, 1867, s. 37. (/) Jioc d. Dean and C. of Rochester v. Pierce, 2 Camp. 96 ; 11 R. R. 673 ; Doc d. Birmingham Canal Co. v. Bold, 11 Q. B. 127. (f/) Doe d. Earl of Carlisle v. Woodman, 8 East, 228 ; 9 R. R. 422. (h) Doe d. Putland v. Milder, 2 B. & A. 782 ; Cole Ejec. 40. (i) Post, Sect. 8 ; Cole Ejec. 41. (A-) See Forms, Appendix C, Nos. 3, 5. (I) Jones V. Phipps, infra. 368 Chap. VIII. — Determination of Tenancy. Ch.VIII. s. 7. Notice to Quit {by and to whom given). Tenant for life Agent for Trustees. Agency generally. Assignees, Devisees, Heirs, Execu- tors, &c. Subsequent Mortgagee. Partners. a subsequent recognition is not sufficient (;»). Where the trustees of a marriage settlement left the entire control and management of the trust estates to their cestui que trust, who was tenant for life in possession, it was held, that he was their general agent in that behalf, and had power to give notices to quit, and that such a notice given in his own name onh' was sufficient (??). But Avhen a notice to quit is given by a particular agent, having a limited authorit}- onl}^, such notice should be given in the name of the principal, or expressly on his behalf (o). A notice given by an agent in the names of W. and B. " and others " is valid as a notice from W. and B. only {p). A notice by an agent of an agent is not generally sufficient {q). Any person for the time being legall}' entitled to the immediate reversion of and in the demised premises, ex. gr. as assignee, devisee, heir, executor or administrator of the landlord, may give notice to quit(r). One of several executors or administrators is competent to give a notice to quit on behalf of all (s). Any subsequent owner deriving title through or under the party giving the notice may avail himself of it it). A mortgagee whose mortgage is subsequent to the commencement of a tenancy from year to year created by the mortgagor is an assignee of the reversion, and he may give the tenant the usual notice to quit (»)• But ?l prior mortgagee need not give any notice to quit (.r). Where A. demises to a mining company, and afterwards becomes a member of that company, he may nevertheless give the company notice to quit, and afterwards maintain ejectment against them {y). Where a brewer demised to a publican upon a yearly tenancy, deter- minable at any time by three months' notice, after which the brewer took in two new partners, and the subsequent receipts for rent were given in the name of the firm : held, that a notice to quit given by the lessor in his own name only was sufficient, and that it was not to be presumed from the receipts that the legal estate in the reversion had vested in the firm {z). (?H.) Doc d. Mann v. Wallers, 10 B. & C. 626 ; Doe d. Lystcr v. Goldwin, 2 Q. B. 143, 146 ; Doc d. Rhodes v. Robinson, 3 Bing. N. C. 677. in) Jones v. Phipps, L. R., 3 Q. B. 303 ; 37 L. J., Q. B. 173 ; 18 L. T. 655 ; 16 W. R. 1018. (o) Doe d. Lystcr v. Goldwin, 2 Q. B. 143, 146 ; Bxiron v. Denman, 2 Exch. 188 ; Cole Ejec. 44. {p) Doe d. Bailey y. Foster, 3 C. B. 215. Iq) Doc d. Rhodes v. Robinson, 3 Bing. N. C. 677 ; Cole Ejec. 45. (r) Cole Ejec. 43. (.9) Id. 43. (<) Doe d. Earl of Egrcmont v. Hellings, 6 Jur. 821, Q. B. ; Doc &. Earl of Egremont V. Forwuod, 3 Q. B. 627 ; Doc d. Higgs v. Terry, 4 A. & E. 274. (it) Burrowes v. Gi'odin, 1 D. & L. 213, 218 ; Raivson v. Eicke, 7 A. & E. 451 ; Burton v. Dickenson, 17 L. T. 246. (x) Ante, 366. (y) Doe d. Harvey v. Francis, 4 M. & W. 331. (c) Doe d. Green v. Baker, 8 Taunt. 241 : 19 I.'. K. 502. Sect. 7. — Notice to Quit (by and to whom given). 369 Where several joint tenants demise from year to year, such of Ch.VIII. s. 7. them as give notice to quit ma}^ severally recover their respective Notice to Quit shares (rt). A notice to quit signed by one of several joint tenants tvhom given). on behalf of himself and the others (whether authorized by them or j • .,j, 77 not) is sufficient to determine a tenancy from year to year as to all ; because the tenant holds the u'hole premises of all so long as he and all shall please, and a notice to quit given by any one effectually puts an end to that tenancy {h). And therefore also a notice to quit given on behalf of several joint tenants by a person authorized by one of them to give such notice is sufficient to determine the tenancy as to all (c). A notice given by an agent in the names of W. and B. " and others " is valid as a notice from W. and B. only {d). A notice to quit given by one of several tenants in common may Tenants in be to quit his undivided part or share (e) . Where the.y demise jointly they seem to stand on the same footing as joint tenants, and notice to quit may accordingly be given by either of them on behalf of himself and the others {f). A receiver, whether appointed by the High Court, or by a private Keceivers. individual ivitli a general authority to let the lands to tenants from j^ear to year, has thereby implied authority to determine such tenancies by a regular notice to quit (r/). But a person authorized to manage the affairs of another during his absence abroad, and to receive his rents, has no authority implied hy laiu to determine a tenancy by notice to quit ; but it is a question of fact for the jury whether he had such authority {h). '* A mere receiver of rents, as such, has no authority to determine a tenancy " {i). A notice to quit given by the landlord should be given to his To whom immediate tenant, or to his assignee, &c., in whom the term is then Landlord, vested, and not to a mere sub-tenant {k). A notice addressed to the tenant, but served upon the sub-tenant upon the premises, is insuffi- cient il). The notice should be directed to the tenant, and may be delivered to his solicitor or agent (w). In Tanham v. Nicholson {n) Tanhamv. it was held by the House of Lords that service upon a person whose (a) Doc d. JVhai/man v. Chaplin, 3 (/i) Doe d. Mann\. Walters, 10 B. & C. Taunt. 120 ; 12 R. R. 615. 626. [h) Doc d. Asliti v. Summersctt, 1 B. & (i) Id. 633, Parke, J. ; Doe d. Rhodes v. Ad. 135, 140 ; Doe d. Kindersley v. Robinson, 3 Bing. N. C. 677 ; Haselcr v. Hurjhes,7 ^l. & W. \4l1; AlfordY. Vickery, Lemoyne, 5 C. B., N. S. 550; Fcarsc v. Car. & M. 210. Boulter, 2 F. & F. 133. (c) Doe d. Kindersley v. Hughes, 7 M. & (k) Pleasant d. Hayton v. Benson, 14 W. 141. East, 234 ; 12 K. R. 507 ; Doe d. Morris (d) Doed. Bailey v. Foster, S C. B. 215. v. Williams, 6 B. & C. 41. (c) Cutting v. Derby, 2 W. Blac. 1075 ; {I) Doe d. Mitchell v. Levi, Ad. Ejec. 92, Doe d. Robertson v. Gardiner, 12 C. B. note (6). 323. See the form, post. Appendix C. {m) Doe d. Prior v. Ongley, 10 C. B. (/) Cole Ejec. 44. 25, 34. {g) Wilkinson v. Colley, 5 Burr. 2696, {n) Tanham v. Nicholson, L. R., 5 H. L. 2698 ; Doc d. Marsack v. Read, 12 East, 57 ; 561 ; 6 Ir., C. L. 188. Doe d. Manrcrs v. Misem, 2 Moo. & E. 56. L.T. 24 370 Chap. VIII. — Determination of Tenancy. Ch.VIII. s. 7. JYotice to Quit (by and to whom given). Notice served but not delivered to Tenant. Joint Lessees. Corporation. To whom "iven — by Tenant. duty it would be to deliver the notice to the tenant was sufficient to sustain ejectment, although in fact the notice was never delivered to the tenant : in this case the tenant was imbecile, and the notice was delivered to his daughter, who lived in the house and managed it. If the notice be served upon the tenant personally, it need not be directed to him by name (o). The tenant on being served with the notice should give a similar notice to his sub-tenant, and will be liable to an ejectment if his sub-tenant hold over {p). In the absence of proof to the contrary, a person who has obtained posses- sion from a tenant will be presumed to be in possession as assignee of the terra, and not as a mere sub-tenant {q). Where on the death of a tenant from year to year his widow remained in posses- sion, and a notice to quit was given to her, this was held sufficient in the absence of any evidence of a probate or letters of administra- tion granted to some other person (?•)• Where there are two or more joint lessees, a notice to quit given to one of them, even by parol, is sufficient for all (s). Where a corporation aggregate is the tenant, and a notice to quit is necessary, it should be addressed to the corporation, and not to its officers [t). A notice to quit given by the tenant should be given to his immediate la)idlord or his assigns, and not to the ground landlord or other person through whom the immediate landlord derives his title («)• If the immediate landlord is dead, or has assigned his reversion, the notice should be given to the person or persons for the time being legally entitled to the immediate reversion, ex. gr. to the heir, executor, administrator, devisee or assignee of such land- lord, as the case may be (.r). Or it may be given to the attorney or agent duly authorized in that behalf of such landlord, or other person so entitled as aforesaid {ij) ; but not to a mere collector of rents who has no actual uuthoritv to receive such notices {z). Parol Notice to Quit general!}'' sufficient. (e) Form and Service of. A parol notice to quit is generally sufficient, whether given by or on behalf of the landlord (a), or the tenant (b) ; even when given on (o) JJoc d. MaUhcwson v. Wrightman, 4 Esp. 5 ; 6 R. R. 834. ip) Roev. JFiggs, 2 Bos. k P., N. R. 330. (q) Doc d. Morris v. WilUoms, 6 B. & C. 41 ; Roc d. Blair v. Street, 2 A. & E. 329, 331 ; Hindlcy v. Rickerby, 5 Esp 4. (r) Rccs d. Mcars v. Pcrrot, 4 C. & P. 230. (s) Doc d. Ld. Macartney v. /. ami JF. Crick, 5 Esp. 196 (the marginal note of this case is incorrect) ; 8 K. R. 848 ; Doc d. Ld. Bradford v. IVatkins, 7 East, 551 ; 8 R. R. 670. {t) Doe d. Ld. Carlisle v. IVoodman, 8 East, 228 ; 9 R. R. 422. {u) Woods v. Hyde, 31 L. J., Ch. 295 ; 10 W. R. 339. (.>■) JFoods V. Hyde, 31. L. J.. Ch. 295 ; 10 W. R. 339. {y) Doc d. Prior V. Ongley, 10 C. B. 25 (last pointi ; Papillon v. Bruuton,5 H. &N. 518 ; 29 L. J., Ex. 265. (z) Pcarse v. Boulter, 2 F. & F. 133. {a) Doe d. Ld. Macartney v. Crick, 5 Esp. 196 ; 2 C. & K. 420 ; 8 R. R. 848. [b) Tiinmiiis v. Raivlinson, 3 Burr. 1603 ; 1 AV. Blac. 533 ; Bird v. Dcfo7i- vicllc, 2 C. & K. 415. Sect. 7. — Notice to Quit (Form and Service of). 371 behalf of a corporation aggregate by their steward or agent (c), if any Ch.VIII. s. 7. notice be necessar}^ in such case (d). A good parol notice will not be ^^"o^"'- to Quit 1 i • rv» • i • • • • / ^ {Form and waived by a subsequent msuincient notice m waiting {c). Service of). Generally speaking, notice to quit is given in writing (/). No isTotice in j)artieular form is necessary ; but if given by or on behalf of the ^^"liting. landlord, it must in substance and effect request the tenant, or other the person for the time being legally entitled to the term (not a mere sub-tenant {g)), to quit and deliver ui3 possession of all the demised premises at the jjyojjer titne : if given by or on behalf of the tenant, it must in substance and effect inform the landlord, or other the person or persons for the time being legallj^ entitled to the immediate rever- sion, that the tenant will quit and deliver up possession of all the demised premises at the proper time {h). A notice to quit must be clear and certain, so as to bind the party Certainty of who gives it, and to enable the party to whom it is given to act upon ^°*^^'^ *° it at the time when he ought to receive it (/). And in conformity AhcamY Avith the interpretation usually given to a dictum of Lord Mansfield Jidlman. (in a case in which the court held the particular notice before them to be good) (Ji), it was also laid down in some prior editions of this ^Vhat work, and in the text books generally {I), that a notice to be good requirecL— must not be optional, i.e. must not give the noticee an option to enter Optional noticG, into a new contract of tenancy. But in Ahearn v. Bellman (m) the AhcarnY majorit}' of the Court of Appeal held that a notice might be optional, Bellman. and yet good. In that case the tenant held at 150L a year, and the notice was this :— " I hereb}' give you notice to quit and deliver up possession of the shop, premises, and show rooms situate and being 20, Moss Street, Liverpool, and now held by you as tenant from me, on or before the 1st day of May, 1878. And I hereby further give you notice that should you retain possession of the premises after the date before mentioned, the annual rental of the premises now held by you from me will be 160L, payable quarterly in advance." The court (Brett, L.J., dissenting) held that the words in italics did not invalidate the notice. "It has been said, and truly said," observed (c) Eoe d. D. and C. of Rochester v. {i) See Doc d. L)jstcr v. Godwin, 2 Pierce, 2 Camp. 96; 7 Q. B. 577 ; 11 K. R. Q. B. 143. €73. (k) Doe d. Mattlicics v. Jackson, 1 Dougl. {cl) Finlay V. Bristol and Exeter R. Co., 11 o. The words M-ere, "I desire you to 7 Exch. 409 ; Copper Miners' Co. v. Fox, quit, or I shall insist on double rent. " 16 Q. B. 229 ; Doe d. Pennington v. (I) See Smith's Landlord and Tenant, Taniere, 12 Q. B. 998 ; Pennington v. 2nd ed. 326 ; Adams on Ejectment, 95 ; Cardale, 3 H. & N. 656. ' Cole on Ejectment, 46. (e) Doc d. Ld. Macartney v. Crick, 5 [m) Ahearn v. Bellman, 4 Ex. D. 201 ; Esp. 196 ; 8 R. R. 848. 48 L. J., Ex. 681 ; 40 L. T. 711 ; 27 W. R. (/) See the Forms, post, Appendix C, 928 — C. A., reversing the ruling of Lopes. J., Nos. 1 — 7. at Liverpool Assizes ; Roberts v. Hayward, (g) Ante, 370 (q). 3- C. &< P. 43-. (A) Cole Ejec. 46, 47. 21—2 372 Chap. YIII. — Determination of Tenancy. Cn.VIII. s. 7. Notice to Quit (Form and Service of). "Take Notice that I inteud to Surrender." " I wisli to go: Tell me when 111}' Tenancy will expire." Cotton, L.J., " that a notice to determine the tenancy must be clear and unambiguous ; but that does not at all mean that a notice other- wise sufficient is made insufficient by its being accompanied by something else." The principle of this case has since been aj^plied to a case in which a lessee under a lease for 21 years determinable by six months' notice at the end of the first 7 or 14, wrote to the lessor more than six months before the expiration of the first 7 years, that he would not be able to stop unless some reduction in his rent should be made ; and inconclusive negotiations for reduction followed (7^); and it is submitted, though with some little doubt, that this ruling would equalh^ apply to the case of a tenancy from year to year. The rule that the notice must be unambiguous has been applied in a case where the expression was " take notice that I intend to sur- render " on the ground that a surrender can only take place by mutual consent, and the word surrender could not incontrovertibly be taken to have been used in the popular sense of giving up, wherefore the notice was held to be bad {<>). This decision must always stand as an authority for the strict construction of notices, but whether it would be followed if the same words had to be construed (which is unlikely) may be doubted. It is submitted that an intention to do what is impossible in law, and according to the i^resumption of law known to be impossible, ought not to have been assumed, and that the word " surrender" ought to have been construed in its popular sense. Where the tenant wrote to the landlord's agents on January 11th, 1892, that he wished to terminate his tenancy, and asked them to let him know when it would expire, and they replied on the 13th that six months' notice must be given, to terminate on the 1st of July in any year, and that he therefore held till July, 1893, this was held a good notice for July, 1893 (j>). A notice given by tlie grantor of a licence to mine, that viiless the grantee kept a certain number of miners at work, as he was bound to do, the grantor icould re-enter, is not a good notice to avoid the licence, which the grantor was entitled to give (q). A notice desiring the tenant to " quit the premises which you hold under me, 3'our term therein having long since exi^ired," does not recognize a sub- sisting tenancy from 3'ear to year, subsequent to the term, but is a mere demand of possession (?•), A notice to quit and give up i)osses- sion, but not stating to whom, is sufficient (s). (n) Bury v. Thovipson, [1895] 1 Q. B. 696 ; 64 L. J., Q. B. 500 ; 72 L. T. 187 ; 43 W. R. 338 ; 14 R. 299— C. A. (o) Gardner v. Ingram, 61 L. T. 729, per Lord Coleridge, C,J., and Bowen, L.J. (in the High Court). (p) General Assurance Co. v. IForslcy, 64 L. J., Q. B. 253 ; 72 L. T. 358 ; 15 R. 328. {q) Mmkctt v. Hill, 5 Bing. N. C. 694. ('/■) Doe d. Godsell v. Inglis, 3 Taunt. 54. (.9) Doe d. Baileij v. Foster, 3 C. B. 215. Sect. 7. — Notice to Quit (Form and Service of). 373 The notice must extend to all the demised premises, and not to a Ch.VIII. s. 7. 2)art oiili/, otherwise it will be bad (t). But the court will if possible Notice to Quit 1 • c 1 1 1 1 1 {Forin and construe the notice as a good notice tor the whole, rather than as a Service of). bad notice for part onl}'. Therefore a notice to quit " Town Barton, jiust extend &c." is sufficient for other lands havinor distinct names held there- \o all the deniised With (»). So a notice to quit "all that messuage, tenement or Premises. dwelling-house, farm, lands and premises, with the appurtenances? which you rent of me in the parish of S.," is sufficient to include the great and small tithes held therewith under a parol demise (x). A joint tenant or tenant in common may give notice to quit all his jJart or share of the demised premises (y). A mere misdescription of the Misdesciip- property in a notice to quit is not fatal if the tenant be not misled immateriaT by it. Thus where the premises were fully and accurately described, except that they were called " The AVaterman's Arms" instead of " The Bricklayer's Arms " (z), and where the premises were described as situate in the parish of D. (instead of the parish of H.), in the count}' of York (a), both these notices were held sufficient. The notice must require the tenant to quit, or give notice of his When the intention to quit, at the proper time. This is the point with respect expire^ i^ordi to which mistakes are most frequently made ; and such mistakes are nary Cases. fatal to the validity of the notice {b). A good instance of this well accepted rule is afforded by Doe d. Murrcll v. Miltcard (r). There a tenant from year to year, believing that his tenancy had commenced (and therefore would be determinable) at ^Midsummer, gave a written notice to quit at that period, which the landlord made no objection to. Afterwards finding out that his tenancy had commenced (and therefore would be determinable) at Christmas, he gave a fresh notice to quit at Christmas. It was held that the landlord could not main- tain an ejectment as for a determination at Midsummer. In the case of an implied tenancy from year to 3'ear, or an express Tenancy from tenancy from year to year which is silent as to notice, if the holding be agricultural, a year's notice expiring wdth a year of tenancy must be given, unless the Agricultural Holdings Act, 1883, has been excluded by mutual agreement in writing {d). Where that act does not apply, or has been excluded, the law requires half-a-year's notice to quit at the end of the first or some other year of the tenancy, and [t) Eight d. Fuher v. C'uthell, 5 East, A. & E. 743. 498 ; JJoe d. Eodd v. Archer, 14 East, 244; (b) Doe d. Castleton v. Samuel, 5 Esp. 12 R. R. 509. 173 ; 8 R. R. 845 ; Doc d. Sjpicer v. Lea, (it) Boe d. Jioddv. Archer, 14 East, 244 ; 11 East, 312 ; Doe d. Finlayson v. Bayley 12 R. R. 509. (weekly tenancy), 5 C. & P. 67. [x) DrjcA.Morrjanv. Church, 3 Camp. 71. (c) Doc d. Murrcll v. Milward, 3 il. & (y) Ante, 369. W. 328 ; and see Johnstone v. Uudlestoiie, {z) Doc d. Cox V. , 4 Esp. 185. 4 B. & C. 922, and 359, ante. (a) Doc d. Arnistrowj v. Wilkinson, 12 {d) See sect. 33 of that act, ante, 361. Year to Year. 874 Chap. Till. — Determination of Tenancy. Ch.VIII. s. 7. not at any other period {c), vvhetlier the demised premises consist of land or houses (/). In a mining lease, where the lessees are to be at liberty to determine it at any time upon a six months' notice, such notice may expire at any time and not merely at the end of the year (g). The peculiar case of weekly, &.c. tenancies has been already dealt with (h). l^otice to Quit (Bate of Expiration). Mining Lease. Weekly, &c., Tenancies. Customary Half-Year's Notice. Morgan v. Davies, New Style Old Style. If the tenancy commence on one of the ordinary feast days, a notice on or before one of the feast days in the earlier half of the tenancy to quit on the feast day at the conclusion of the tenancy is sufficient and necessary, although the period between the two feast days should exceed or fall short of the number of days svhich consti- tute a half-year (?). Thus a notice served on or before Michaelmas- day to quit on the following Lady-day (from which day the tenancy commenced) is sufficient (k), though there are fewer than 183 days between the 28th September and the 25th March. So a notice to quit on the 24th of June served on the preceding Christmas-day is sufficient (/) ; but a notice served on the 26th of March to quit on the 29th of September then next is insufficient (;//), although there are more than 183 days between the 26th of March and the 29th of September. "Where the tenancy commenced from some day in the year other than one of the usual quarter days, a full half-year's notice (183 days), expiring on such day, must be given («), But where a " six months' " notice on either side is expressly agreed for, it seems that a six lunar months' notice is sufficient (o). A notice to quit at " Michaehnas next " prima facie means Michael- mas, new style (29th of September) ; but it will be sufficient for a tenancy commencing at Michaelmas, old style (11th of r)ctober), because the tenant cannot have been misled or prejudiced by it (jj). But a notice to quit " on the 11th of October, Old Michaelmas-day," is bad, if tlie tenancv connnenced at New Michaelmas (q). Upon (c) Parker d. Walker v. Constable, 3 Wils. 25 ; EUjht d. Flower v. Darby, 1 T. R. 159 ; 1 R. R. 169 ; iJoe d. Micrrell V. Milv-ard, 3 II. & W. 328. (/) Roe d. Brown v. Wilkinson, Co. Lit. 270 b, note (228) ; Right d. Flower v. Darby, 1 T. K. 162 ; 1 R. R. 169. (gf) BHd(,cs\. Potts, 17 C. B., N. S. 314; 33 L. J., C. P. 338. [h) Ante, p. 365. {i) Morgan v. Davies, 3 C. P. D. 260 ; 26 W. R. 816 ; Doc v. Kightlcy, 7 T. R. 63 ; 4 R. R. 375 ; Howard v. Wemsley, 6 Esp. 53 ; 9 K. R. 806. [k) Roe d. Durant v. Doe, 6 Bing. 574 ; Doe d. Mattliewson v. Wriglitman, 4 Esp. 6 ; 6 R. R. 834 ; Doc d. Ld. Bradford V. Watkins, 7 East, 551 ; 8 R. R. 670 ; Papillon V. Brunton, 5 H. & N. 518 ; 29 L. J., Ex. 265. (l) Doe d. Buddie v. Lines, 11 Q. B. 402. (m) Morgan v. Davies, 3 C. P. D. 360 ; 26 W. R. 816. (n) Doe d. Spiccr v. Lea, 11 East, 312 ; Mills V. Goff, 14 IL & W. 72 ; 2 D. & L. 23 ; Doe d. Cornwall v. Matthews, 11 C. B. 675. (o) Rogers v. Kingston-upon-Hull Dock Co., 34 L. J., Ch. 765. 0?) Furley d. Mayor, f^ ^o Q">i > 1 1 \ ' T ' (Form and commenced, or on one ol the three other correspondmg quarter Service of). days (g) . It appears not to have been expressly decided what notice to quit Weekly is necessary in the case of a weekly tenancy. The authorities on the point have already been examined (/<). The day or time mentioned in the notice to quit should always he Date of correct with reference to the date of the notice. Any mistake in * ° ^^^- this respect is generally fatal to the validity of the notice (i). But a notice dated on the 27th, and served on the 28th Sejytemher, requiring a tenant to quit " at Lady-day next, or at the end of his current year," was held in one case to mean a six months' and not a two days' notice to quit (k) ; but this decision has been since over- ruled in a case where a notice was held bad which was served on the 21st of October, to quit " on the 13th of May next, or upon such other day as the current year for which you now hold will expire," the holding being one from a day in November (l). A notice served on the 17th June to quit " on the 11th October now next ensuing, or such other day and time as your said tenancy may expire on," is not a good notice for the Michaelmas in the following year (m). A notice delivered to a tenant at JMicluiclmas, 1795, to quit " at Lady-day which will be in the year 1795," was held to be a good notice to quit at Lady-day, 1796 ; for the intention was clear, and 1795 was to be rejected as an impossible year (ji). So where a yearly tenancj' expired in February, and in October, 1833, a notice was given to quit " at the expiration of half a year from the delivery of this notice, or at such other time or times as your lyresent year's holding of or in the said messuage, &c. shall expire after the expiration of half a year from the delivery of this notice," it was held a good notice for February, 1835 (o). It is not necessary that a notice to quit should be directed to the To \y]iom the I ,• • -n Til 1 IT 1.1- Notice should tenant in possession, ii proved to nave been delivered to him as i^g directed tenant at the proper time ( ji) : and if a notice to quit be directed to and given. the tenant by a wrong christian name, and he keeps it without objection, it is a waiver of the misdirection {q) : and where two tenants hold premises in common, a notice to quit to one of them is sufficient ((/) Kcnif V. Derrett, 3 Camp. 510. (a) Doc d. Duke of Bedford v. Kvjhtlcy, (h) Ante, 365 ; see especially Jones v. 7 T. K. 63 ; 4 R. R. 375. 3Iills, 31 L. J., C. P. 66. (o) Doed. Williams v. Smith, 5 A. & E. (i) Cole Ejeo. 52. 350 ; Doe d. KindersUy v. Hxiglics, 7 [k) Doc d. Ld. Huntingtower v. Culli- M. & W. 139. ford, 4 D. & R. 249 ; Doe d. Earl of Ecjrc- ( p) Doe d. Matthexcson v. JVrigMiiian, mont V. Forwood, 3 Q B. 627. 4 Esp. 5 ; 6 R. R. 834. (V) Doe d. Mayor, d-c. of Richmond v. {q) Doe v. Spiller, 6 Esp. 70 ; 9 R. R. Morphctt, 7 Q. B. 577. ' 810. (in) Mills V. Goff, 14 ftl. & AV. 72. 380 Chap. YIII, — Determination of Tenancy. Ch.VIII. s. 7. to determine the tenancy' {>■) : at least it is evidence that the notice Notice to Qmt reached the other tenant who lived elsewhere (s). Where a tenant yrorm and Service of), from year to year suh-let part of the premises, and then gave up to his landlord the part remaining in his own possession, the landlord cannot entitle himself to recover against the sub-lessee, no notice to quit having been given to the lessee, but only a notice to the sub- lessee, and that by the landlord, in his own name, and not in the name of the first lessee (t). In ejectment against S. and F., where it is shown that B., not a party to the cause, came into possession of the premises under an unperformed contract of sale, and that S. and F. held under him, notice to quit served upon S. and F. is sufficient (»)• Attestation A notice to quit need not be attested. If attested it may be o ^ o ice. proved without calling the attesting Avitness (x) ; but this was formerl}^ otherwise (y). It may be proved b}' an examined cop}* or duplicate, without any notice to produce the original (z). When and The notice must generalh' be served lialf a year before the time when the tenant is to quit possession (a). But a customary half- year's notice is sufficient where the tenancy is from one of the usual (|uarter days (b). AVhere a greater or less notice than that usually required by law is i^rovided for by express stipulation or local custom, it Avill be sufficient to give notice accordingly (c). AVhere a "six months' " notice is agreed for, it seems that a six lunar months' SuiicUw. notice is sufficient (r/). The notice ma}' be served on a Sunda}' (e). Service of A notice to (juit need not be served personally on the tenant. It is Ouit^ ^ sufficient to leave it at his dwelling-house with his wife or servant (/). Such service is sufficient although the notice does not actually reach the tenant's {or landlord's) hands before the half-year has com- menced {(j). But merely leaving the notice at the tenant's house without any explanation, and without proof that the person to whom it was delivered was the tenant's wife or servant, or that it ever came to his hands, is not sufficient {h). So service on the tenant's wife, off" the demised premises and without proof that it was at her hus- ('/•) Doe d. Ld. Macartney v. Crick, Co., 34 L. J., Ch. 165. 5 Es]). 196 ; 8 K. R. 848. (e) Sancfstcr v. Nay, 16 L. T. 157. The (.s) Doe d. Ld. Jiradford v. Watkins, Sunday Uljservauce Act, 1677, 29 Car. 2, 7 East, 551 ; 8 K. R. 670. c. 7, s. 6, makes only writs, &c. void. {t) Pleasant d. Hayton v. Benson, 14 (/) Smith v. Clark, 9 Dowl. 209 ; Jones East, 234 ; 12 R. R. 507. d. Orijfiths v. Marsh, 4 T. R. 464 ; 2 R. R. (zt) Hoed. Blair V. Street, 2 A. & E. 329. 441 ; Hoc d. Blair v. Street, 2 A. & E. (x) C. L. P. Act, 1854, s. 26. 329 ; Hey. v. Js. of North Biding of York- {y) Boole \. Warren. 8 A. &E. 582. shire, 7 Q. B. 154 ; jljtplelon v. Murray, (s) Doc d. Fleming v. Somerton, 7 (). 13. 8 W. R. 653 ; Maso'a v. Bibby, 2 H. & C. 58; Beg. v. Mortlock, Id. 459. 886, Pollock, C.B. (a) Biqht d. Floxccr v. Darby, 1 T. R. (q) Doc d. Neville v. Dunbar, Moo. it il. 159 ; 1 \\. R. 169. 10 '; Bapillon v. Brunton, 5 H. & N. 518 ; {b) Ante, 374. 29 L. J.; Ex. 265. (c) Ante, 357, 359 ; Cole Ejec. 32, 53. (A) Doe d. Buross v. Lucas, 5 Esp. 153 ; (rf) Bogcrs v. Kingston-upon-Hull Dock 8 R. R, 842. Sect. 7. — Notice to Quit (Form and Service of). 381 band's residence, where she was then living with him, appears to he Ch. VIII. s. 7. insufficient (/). Service of the notice upon a rehitive of the siib-tenant Notice to Quit , . (Form and upon the premises is not sufficient, although the notice was properly Service of). addressed to the tenant (/.■). Putting the notice under the door of the tenant's lioiise, or any other mode of service, has been said to be sufficient, if it be shown that the notice came to the tenant's hands before the commencement of the six months (l) ; and in Tanham v. Nicholson (m) it was held that it was sufficient to serve the notice upon a person whose duty it was to deliver it to the tenant. In Papillon Y. Bnuitou {)i), between nine and ten o'clock on the Sending of 25th March a tenant put into a j^ost-office in London a letter con- ^y Post, taining a notice to quit on the following Michaelmas, and addressed to the place of business in London of his landlord's agent. The agent was at his place of business until between six and seven o'clock in the evening and did not receive the letter, but found it on the following morning. This was held a sufficient notice to determine the tenancy, the jury having found that the letter was delivered on the 25th March, after the agent left (n). If a notice be posted on one da}', and delivered in due course of post on the next, the latter is considered as the da}' on which it was sent (o). Service on one of several joint tenants is prima facie sufficient Joint Tenants, for all of them(j)). Service on a corporation may be on one of ^^^P'^^''^ ^°"^' its officers (q), and in the case of a company " incorporated by act of parliament for the purpose of carrying on any undertaking," the Companies Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 16), prescribes by sect. 135, that " any notice " may be served " by being left at or transmitted through the post, directed to the principal office of the company, or one of their principal offices where there shall be more than one, or being given personally to the secretary, or if there be no secretary, then by being given to any one director of the company." As to whether notice to quit may be served by registered letter Agricultural under sect. 28 of the Agricultural Holdings Act, see p. 362, ante. ^"^'^ ^' (i) Hoc d. -Blair V. Street, 2 A. & E. 328, that the notice was not in fact received — • 331 ; Cole Ejec. 54. the question being for the jury. SeeRosooe (k) Boe d. 3fitchellv. Levi, Ad. 'Ejec. 92. on Evidence, 16th ed. , p. 1012, citing (I) Alford V. Vickery, Car. & M. 280. Grcsham House Estate Co. v. Itossa Grande (m) tanham v. Nicholson, L. E.., 5 H. L. Mining Co., 5 W. N. 1870. 561, and p. 369, ante. (o) Reg. v. Recorder of Richmond, E., (m) Pajnllony, Brunton,b)l. kl^. 5\i ; B. & E. 253 (notice of chargeabilitj' of 29 L. J., Ex. 265. This case does not pauper); Tew y. Harris, 11 €l. ^. 7 {wolice; decide that mere posting amounts to a of appointment of referee), service in law; it seems, however, that {p) Docd. Ld. Bradford v. JVatkiiis, 7 a notice to quit, if posted so as to be East, 551 ; 8 R. K. 670 ; Boe d. Ld. Macart- delivered in due time, will be presumed ncy v. Crick, 5 Esp. 196 ; 8 R. R. 848. to have been so delivered, but that the {q) Doe v. IVoodman, 8 East, 228 ; 9 presumption may be rebutted by proof R. R. 422. 382 Chap. YIII. — Determination of Tenancy. €h. VlII.s. 7. Xoticc to Quit (Form and 'Serrice of). Indorsement of Service. Proof of Notice. A proper indorsement of the service should be made in the usual course of business, which will be admissible in evidence after the death of the witness (/•)• It is not necessary to prove the signature to the notice (s) ; nor to produce the attesting witness (if any) (t) ; nor to give notice to produce the original notice served (u). The regular service of a notice to quit, held to have been properly inferred from the circumstance of the tenant speaking about " the notice to quit which he had received," and engaging a valuer to value his rights as an outgoing tenant (.r). But a party who is driven to rely on such evidence should, as a matter of precaution, give a notice to produce the notice to quit, describing its contents fully (y). Creation of new Tenancy by Waiver, with consent Kjf both Parties. Onarantee for Kent ceases. By Accept- ance of Rent, /)r Distress. (f) Wairer of Notice A notice to quit can be waived, and a new or continual tenancy created, only by the express or implied consent of both parties (2). "There is this difference between a determination of a tenancy by a notice to quit and a forfeiture ; in the former case the tenancy is put an end to by the agreement of the parties, which determination of the tenancy cannot be waived without the assent of both ; but in the case of a forfeitiu'c the lease is voidable only at the election of the lessor : in the one case tlie estate continues though voidable, in the other the tenancy is at an end " (a). By a notice to (juit given to a tenant from year to year, his tenancy is determined on the expiration of the current year ; and the waiver of the notice creates a new tenancy, taking effect on the expiration of the old one (/>). A guarantee for the rent will not extend to such new tenancy {h). If a landlord receive rent due alter t lie r.ipiration of a notice to (piit, it may be a waiver of that notice {<•), though a receipt of rent due l)efore the expiration of the notice cannot be {d), and a distress for such rent is in any case a waiver (c). Even after the expiration of the notice, where rent is usually paid at a banker's, if the banker, without any special authority, receive rent accruing after such expiration, the notice is not therebj' waived (/) : so if the money be not paid or received as rent, but as I (?•) Di'c d. Paftcshall v. Turford, 3 B. & Ad. 890 ; Sttipyllon v. Clough, 2 E. & V,. 9.3.3; Smith, L. & T. 328 (2nd ed.). {s) Formaii v. Daiccs, 1 Car. k ^1. 127. (0 C. L. P. Act, 1854, s. 26. («) Ante, 380(;). (.f) Doe d. Si7n2)son v. ffall, 5 M. & G. 795. (y) Cole Ejec. 160. (;;) Cole Ejec. 55. (a) Bbjth V. Dennett, 13 C. T5. 178, 180 ; 22 L. J., C. P. 79, 80 ; Dendy v. Nicholl, 4 C. B., X. S. 381. (h) Tayhur v. Wildin, L. P., 3 E.\. 303 ; 37 L. ,T., Ex. 173. (c) Goodriyht d. Charter v. Cordivent, 6 T. R. 219 ; 3 R. R. 161. {d) See Price v. IFortcood, 5 II. A: X. 512. (e) ZoHc/t V. WiUingalc, 1 H. Bl. 311 ; 2 R. R. 770. (/■) DocA. Ashv. Calvert, 2 Camp. 387 ; 11 R. R. 745. Sect. 7. — Notice to Quit (Waiver of). 383 a satisfaction for the injury clone b,y the tenant in continuing on the Cii. VIII. s. 7. premises as a trespasser, it will not have such an operation (r/). A ^oJ±ceto Qmt '■ ■ . . " . ( lyaiver of). demand of rent accruing subsequently to the expiration of a notice to quit is not necessarily a waiver of the notice, but is a question of intention which ought to be left to the jury ill) ; but a demand for one da3''s more rent than was due has been treated as a waiver in law («'). Generally speaking, giving a second notice to quit amounts to a By giving a ,. ' . . , . /,x 1 . 1 ^ .■ 1. second Notice waiver of a notice previously given {k) ; but a good parol notice to to Quit. quit will not be waived by a subsequent insufficient notice in writing {I). Where a landlord gave a notice to quit different parts of a farm at different times which the tenant neglected to do in part, in conse- quence of which the landlord commenced an ejectment; and before the last period mentioned in the notice was expired, the landlord, apprehending that the witness by whom he was to prove the notice would die, gave another notice to quit at the same respective times in the following year, but continued to proceed with his ejectment, it was held that the second notice was not a waiver of the first {m) . If, after the expiration of a notice to quit, the landlord give the tenant a fresh notice, that unless he quit in fourteen days, he will be required to pay double value, the second notice is no waiver of the first {n) : so if a landlord give notice to his tenant to quit at the expiration of the lease, and the tenant hold over, and a second notice be delivered to the tenant, after the expiration of such notice, " to quit on a subsequent day or to pay double rent : " it is no waiver of the first notice (o). If the landlord has given a notice to quit, and the tenant holds % other Acts. over, the landlord cannot waive his notice and distrain for rent subsequently accruing (_p ). Where a three months' notice was given, the rent being reserved quarterl}", and the landlord expressed neither his assent nor dissent to admit it, and took the rent up to the time when his tenant quitted ; it was construed to be such an acquiescence as amounted to presumptive evidence that the parties intended to dispense with the notice, and was therefore deemed a waiver of it (q). If at the end of the year (where there has (g) Goodriqht d. Charter v. Cordiccnt, (ni) Doe d. Willianis v. Riimplircy, 2 « T. R. 2-2b ; 3 R. R. 161 ; Zouch d. East, 237. JFardv. Willinqah, 1 H. Blac. 311. {n) Doe d. Dighy v. Steel, 3 Camp. 115 ; [h) Blyth V. Dennett, 13 C. B. 178 ; Doe 13 R. R. 768 ; Blyth v. Dennett, 13 C. B. d. Cheny v. Baltcn, Cow^). 243. 178. (i) Keith, Prowse ost, Chaji. IX., Sect. 2. Scott Benton, Willes, Dodd, 3 Drew. 485 : 25 (;) Legy d. 43. [a) Giddens L. .L, Ch. 451. [b) Cadhy v. Martinez, 11 A. & E. 720 ; 3 P. & D. 386 ; Bird v. Baker, 1 E. & E. 12 ; 28 L. J., Q. B. 7 ; Jones v. Nixon, 1 H. & C. 48 ; 31 L. J., Ex. 505 ; Sharp V. MiUigan, 22 Beav. 612. L.T. (c) Doc d. Rodd v. Archer', 14 East, 245, 248 ; 12 R. R. 509. See form of notice, post, Appendix C. , No. 8. {d) See form of proviso, Appendix B., Sect. 23 ; also form of notice to take part. Id., Sect. 24. (c) Doc d. Wilson v. Ahd, 2 M. & S. 541 ; 15 R. R. 343. (/) Dannv. Spurrier, 3 Bos. & P. 399, 442 ; 7 R. R. 797 ; Doc d. JFebb v. Dixon, 9 East, 15 ; 9 R. R. 501 ; Fallon v. Robins, 16 Ir. Ch. R. 422. {g) Foicell v. Frantz, 3 H. & C. 458 : 34 L. J., Ex. 6. 25 386 Chap. YIII. — Determination of Tenancy. Ch. VIII. s. 8. Exercise of Option to de- termine Lease. Executors — contd. Landlord's option — deliver}' of notice, when tenant absconds. Delivery of Notice to Tenant. Hogg V. Brooks. No bail in Ejectment after such Notice. consequently, that such notice given by the lessor to the representa- tives of the lessee (who died during the term) did not determine the lease (/i). A proviso in a lease for twenty-one years, that if either of the parties shall be desirous to determine it in seven or fourteen years it shall be lawful for either of them, his executors or adminis- trators, so to do, upon twelve months' notice to the other of them, his heirs, executors or administrators, extends by reasonable intend- ment to the devisee of the lessor, he being entitled to the rent and reversion (i). Where a lease for twenty-one years contained a proviso that in case either the landlord or tenant, or their respective heirs, executors or administrators, wished to determine it at the end of the first fourteen 3'ears, and should give six months' notice in wi'iting under his or their respective hands, the term should cease : it was held, that a notice to quit signed by tivo only of three executors of the lessor, to whom he had bequeathed the freeholds as joint tenants, was not good under the proviso, although such notice purjaorted to be given on behalf of all the executors — the proviso requiring the notice to be given " under the respective hands " of all of them (/i) . If the option be in the landlord, and the proviso for notice should stipulate, not, as is usual and j^i'oper, that it should be left on the demised premises, but that it should be delivered to the tenant, great difficulties may arise. In Horig v. Brooks (l), the proviso was that the lease miglit be determined by the landlord or his assigns " delivering to the tenant or his assigns six months' previous notice in writing." The tenant mortgaged the premises by way of sub- lease, and disappeared. A notice was sent to his last known address, and also to the mortgagee, and was also left on the demised premises, which the mortgagee had sub-let. It was ruled by Mathew, J., that these notices were ineffectual to support an action of ejectment by the assignee of the reversion against the tenant of the mortgagee, on the ground that the lease provided for direct service upon the lessee or his assigns, and the mortgagee was onl}' a sub-tenant, and this ruling was confirmed by the Court of Appeal (Z). "When a lease has been determined by notice pursuant to a proviso in that behalf, and the landlord brings ejectment, he cannot compel the tenant to find sureties to pay the costs and damages, pursuant to (h) Lcgg d. Scott v. Bcnimi, Willes, Hardy, 9 M. & W. 770. 43. {i) Roe d. Bamford v. Ilayley, 12 Ea.st, 464 ; 11 R. R. 455. {k) Bight d. Fisher v. Cuthcll, 5 Ea.st, 491 ; 2 Smith, 83 ; recognized and distin- guished in Doc d. AsUn v. Summersett, 1 B. & Ad. 135, 141. See also Turner v. {I) Hogg V. Brooks, 15 Q. B. D. 256, C. A., affirming JIathew, J. ; 14 Q. B. D. 475. Perhaps this decision may be open to question on the ground that a mortgagee by demise is not only technically an "assign,'" but also practically an assignee. Sect. 9. — Disclaimer. 387 15 I'V: 16 Vict. c. 76, s. 213 (in) ; nor can any accruing or subsequent Ch. VIII. s. 8. rent be recovered after an}' such determination (ii). Exercise of Option to de- termine Lease. Sect. 9. — Disclaimer. It is a general rule that the tenant commits a forfeiture if he Disclaimer by disclaim and deny his landlord's title (o). But a denial by parol of Lessee 'for a landlord's title does not cause a forfeiture of a lease for a term ^c"^'s> "i- sutticient. certain, whether under seal or not(j^) ; nor will payment to a third person of the rent reserved by such lease (q). Where a tenant for five years delivered up possession of the demised premises and of the lease in fraud of his landlord, to a person claiming under a hostile title, with the intention of enabling him to set up such title and not to hold under the lease : it was held, that the term was thereby forfeited (r). But that case turned upon the fraud of the tenant, and can only be sustained on that ground. All the other cases in the books of forfeiture by disclaimer have been by matter of record (s). xVny person who obtains possession from the tenant or sub-tenant, by an arrangement made with him, whether by collusion or otherwise, but without any deed of assignment or sub-lease, will not be permitted to defend such possession by proof of a title aliunde, but will be estopped from denying the landlord's title in like manner as the tenant or sub-tenant would have been had he remained in possession (t). A disclaimer by a tenant from year to 3'ear of the title of his land- Disclaimer by lord, or of the person for the time being entitled to the immediate year to Year, reversion as assignee, heir, devisee, executor or administrator of the Vivian v. landlord, will operate as a ivaivcr by the tenant of tJie usual notice to ^^^''^' quit, and will in effect determine the tenancy at the election of the landlord or other person so entitled («) ; for " a notice to quit is only requisite where a tenancy is admitted on both sides, and if a defendant denies the tenancy there can be no necessity to end that which he says has no existence " (x). (m) Doc d. Cardigan v. Roe, 1 D. & R. (,<;) Per Lord Denman, C.J., in Gregg 540 ; Doed. Cundey v. S/unylei/, 15 M. & W. v. WcUs, 10 A. & E. 427. 558. As to the evidence in such action, it) Doc d. Bidler v. Mills, 2 A. & E. see Cole Ejec. 399. 17 ; Doc d. Hadcn v. Burton, 9 C. & ?. [n) Furnivall v. Grove, 8 C. B., N. S. 254; Doe d. Thoynas v. Shadiccll, 7 Dowl. 496 ; 30 L. J., C. P. 3. 527 ; Cole Ejec. 215, 216. (o) Bac. Abr. tit. Leases and Tcrvis for (u) Doe d. Bennett v. Lmig, 9 C. & P. Years (T. 2). 773 ; Due d. Gruhb v. Grubb, 10 B. & C. (;0 Doc d. Graves v. Wells, 10 A. & E. 816 ; i>oe d. FhiUips v. RoWngs, 4 C. B. 127 ; Recs d. Poiccll v. King, Forrest, 19 ; 188 ; Doe d. Davies v. Evans, 9 M. & W. Cole Ejec. 42. 48 ; Doe d. Landsell v. Gower, 17 Q. B. (<7) Doe d. Dillon v. Parker, Gow, 180 ; 589 ; Vivian v. Mont, 16 Cli. D. 730 ; 50 Doc d. JFiUiamsv. Fasqucdi, Peake, 196 ; L. J., Ch. 331 ; 44 L. T. 210 ; 29 W. R. SB.R. 688. 504, per Fry, J. (r) Doe d. Ellcnhrock v. Fhjnn. 1 C, {x) Per Best, C.J., in Doed. Calvert v. M. & K. 137. Frowd, 4 Bing. 560 ; Doc d. FhiUips v. 25—2 388 Chap. VIII. — Deteemination of Tenancy. Ch.YIII. s. 9. Disclaimer. What amounts to a Disclaimer. Kefiisal to Rent. lay It is sometimes a nice question whether what has taken place does or does not amount to a disclaimer of the tenancy. It is difficult, if not imi^ossible, to reconcile all the cases on this point. But the result of them seems to be, that if a tenant from year to year use an}^ expressions which, being reasonably construed with reference to the circumstances under which they were uttered or written, amount to a denial of the existence of any tenancy as between him and the claimant, such expressions amount to a disclaimer, and render a notice to quit unnecessary (2/). On the other hand, if the expressions- used cannot under the circumstances be reasonabh' construed to amount to such a denial, the}'^ will not operate as a disclaimer nor render a notice to quit unnecessar}' (^). In order to make either a verbal or written disclaimer sufficient, it must amount to a direct rejmdiation of the relation of landlord and tenant, or to a distinct claim to hold possession of the estate upon a ground wholly inconsistent with that relation, Avhich by necessary implication is a repudiation of it (a). A. disclaimer, as the word imports, must be a renunciation by the party of his character of tenant, either b}' setting up a title in another or by claiming title in himself {h) ; and it was held to be a disclaimer where the tenant wrote a letter disputing the landlord's right to raise the rent, but offering to pay a customary rent, as being all that the tenant was liable to pa}'^ (c). But a very slight matter, not really intended as a repudiation, will sometimes be construed as a repudiation, in order to defeat an objection of a technical nature (r/). A refusal to pay rent to a devisee in a will which is contested is not a disavowal of the title of such devisee. But Avhere the defendant held jn'emises under a tenant for life, on whose death possession was claimed and rent demanded by the heir at law of the devisor ; where- upon the defendant wrote to the attorney of the heir at law, stating that he held as tenant to J. S. (the husband of the tenant for life) in right of his wife ; that he had never considered the claimant as the landlord of the house ; and that he should be ready to pay the arrears to any person who should be proved to be heir at law ; but that he must decline taking upon himself to decide upon the claim made on Rollings, 4C. B. 188, 200 ; Doe d. Jeff cries V. IVhiUick, Gow. 195. {y) Doe d. Calvert v. Frowd, 4 Bing. 560 ; Doc d. Gruhh v. Grnhb, 10 B. k C. 816 ; Doe d. Bennett v. Long, 9 C. & P. 773 ; Doe ^.Hughes v. Buckncll, 8 C. & P. 566 ; Doe d. Whitehead v. Pittman, 2 N. & M. 673 ; Doc d. Davics v. Evans, 9 il. & W. 48 ; Doc d. FhillijJS v. Ilollings, 4 G. B. 188, 200 ; Doe d. Landscll v. Goiver, 17 C,). B. 589. (2) Doe d. Lewis v. Earl Cawdor, 1 C, iM. & K. 398 ; Doe d. Williams v. C.oo2)cr, 1 M. & G. 135 ; 1 Scott, N, R. 36 ; Doe d. Williams v. Pasquali, Peake, 259 ; 3 R. R. 688 ; Hunt v. 4llgoQd, 10 C. B., N. S. 253 ; Jones v. Mills, Id. 788. (rt) Doc d. Grey v. Stanion, 1 fil. & "W. 695, 703 ; Doe d. JVilliams v. Cooper^ Hunt V. All good, and Jones v. Mills, .supra. \b) Per Tindal, O.J., in Doc d. Wil- liains V. Cuo2)cr, 1 M. & (J. 135 ; Jones v. Mills, 10 C. B., N. S. 788, 796, 801 ; Vivian V. Moat, 44 L. T, 21U. (c) Vivian v. Moat, ubi supra. {d) Doe d. Davies v. Evans, 9 M. & W. 48. Sect. 9. — Disclaimer. 389 liim without more satisfactory proof in a legal manner ; it was held, Ch. YIII.s. 9. that this letter amounted to a disclaimer of the title of the heir at Di'Scl a imer. law, and that he might maintain ejectment against the tenant without giving him a previous notice to quit(6')- A remainderman, after the death of tenant for life who had made a voidable lease, applied for rent to the tenant, who at first did not refuse to pay, but after some negotiation did so, saying that he understood that another person was entitled to the estate ; held that the remainderman might maintain ejectment without notice to quit or demand of possession, there being a disclaimer of the remainderman's title (/). Where several persons joined in letting land, and it was agreed that the rent should be paid to an agent for them, and afterwards one of the lessors, to whom alone in fact the land belonged, demanded rent of the tenant, who said "you are not mv landlord : " it w^as left to the jury to sa}' whether he intended that the relation of landlord and tenant did not exist between them or merely that the rent was to be paid to the agent (f/). An attornment by a tenant from year to year to a third person amounts to such a disclaimer of the landlord's title as will enable him to maintain ejectment without any notice to quit (//). " I have no rent for you, because A. B. has ordered me to pay none." This is evidence of a disclaimer of the tenancy (i). In another case the defendant had for several years occupied a cottage as tenant from week to week to one M., and after the death of M. the defendant continued to pay his rent w^eekly to certain persons to whom M. had devised the premises. The devise being discovered to be void by reason of the Mortmain Act, the heir at law of M., by his agent, demanded the rent. The defendant said that he had received notice from the other party and would not pay any more rent until he knew who was the right owner. It was held, that this did not amount to a disclaimer or repudiation of the title of the heir at law so as to entitle him to eject the defendant without any notice to quit {k) . Where a disclaimer is relied on, it must appear to have been made Date of before or on the day mentioned in the writ of ejectment as the time -L^isc aimer. w^ien the claimant was entitled to possession (/). But where the defendant by his agent, on 26th June, answered an application for rent by saying that his *' connection as tenant with the late John Grubb, Esq. (through whom the plaintiff derived his title), has ceased for several years, and that he now paj's his rent to his brother ; " this (c) Doe d. Calvert v. Froicd, 4 Bing. K. P. 90 ; Cole E.jee. 42. 557 ; 1 Jroo. & P. 480. (i) Doe d. IVhitchcail v. Pittman, 2 ( f) Doc d. Phillips V. Pollings, 4 C. B. N. & M. 673. 188. (^-) Jonc^ V. Mills, 10 C. B., N. S. 788. U/) Doc d. Bennett v. Lonr/, 9 C. & P. (I) Doe d. Lewis v. Earl Cawdor, 1 773. C, M. & R. 389 ; 4 Tyrw. 852 ; Doe d. (/i) Throfjmorton v. Whcl2)dalc, Bull. Bennett v. Long, 9 C. & P. 773. 390 Chap. YIII. — Determination of Tenancy. Ch. VIII. s. Disclaimer "Waiver of Disclaimer. 9" was held to be evidence of a disclaimer of title before the 1st May 1_ (on which da}^ the demise was laid in the ejectment), and rendered any notice to quit unnecessary {m). In ejectment against two per- sons as landlord and tenant, an admission by the tenant, after action brought, of an attornment by him to the landlord having taken place before the day from which possession was claimed in the ejectment, was held sufficient evidence of a disclaimer as against both the defendants (»). A disclaimer may be waived by any act of the landlord acknow- ledging the party as his tenant at a later period, as by a distress for subsequent rent (o). Death of Tenant. Death of Landlord. When the Term is limited con- ditionally. Death of cestui que vie. Sect. 10.— Death. A tenancy does not determine by the death of the lessee, but will vest in his legal personal representatives, who are entitled to give or receive the usual notice to quit (j;). So it will not determine by the death of the lessor (q), unless he was only a tenant for his own life, and the demise was not made in pui'suance of any power or statute (r). And even in such case the tenant, if the holding be agiicultural, is entitled (in lieu of emblements (s) ) to hold the demised premises until the end of the then current year of the tenancy (0. Sometimes a lease is granted for a certain term of years, if the lessee shall so long live ; in which case it will determine either at the end of the specified term or upon the death of the lessee, which shall first happen («). AVlien a person holds for the term of another's life he is called tenant pur autre vie ; leases made by him of course determine on the death of the cestui que vie, or person for whose life he holds, or at the end of the then current year of the tenancy (x) : but not on his own death ; and a lease by him maj' be made to commence on his own death {x). AVe have already considered how a tenant pur autre vie may be compelled to produce his cestui que vie, if living (x). {m) Doe d. Griibb v. Gntbb, 10 B. & C. 816. (ji) Doe d. Mce v. Lithcrland, 4 A. & E. 784. (o) Doe d. David v. Williains, 7 C. & P. 322. {j>) Mackay v. Mackreth, 4 Doug. 21-3 ; Doe d. Shore v. Porter, 3 T. R. 13 ; 1 1!. R. 626 ; Parker d. Walker v. Comtable, 3 Wils. 25 : James v. Dean, 11 Ves. 391 ; 8 R. R. 178 ; Doe d. Hull v. Wood, 14 M. k W. 682. {q) Maddon d. Baker v. White, 2 T. R. 159 ; 1 R. R. 453. (/•) Doe d. Thomas v. Roberts, 16 il. & AV, 778 : Doe d. Kirby v. Carter, Ry. & Moo. 237. (s) Kelly v. Webber, 11 Ir. Com. L., Rep. 57. [t) 14 & 15 Vict. e. 25, s. 1 ; post, Appendix A., Sect. 5. {u) Ante, Chap. IV., Sect. 3. (.t) Ante, Chap. I., Sect. 5. ( 391 ) CHAPTER IX. OF THE RENEWAL OF LEASES, AND OF OPTION TO PURCHASE AND THE EXERCISE THEREOF. Sect. page 1. Covenants to Renew — whether per- petual or not 391 2. Forfeiture of Right to Renew 394 3. Renewal hy Minors, Lunatics and Married AVomen 396 4. Renewal by Trustees, Agents, &c 396 Sect. page 5. Renewal without Sun-ender of Sub- leases 399 6. Undesirability of Renewable Leases 400 7. Purchase of Reversion 401 (a) Generally 401 (b) By Exercise of Option to Pur- chase 401 Sect. 1. — Covenants to Reneic — icliether perpetual or not. Some nice points occur in the books concerning the construction Constmction t , ^ n ^ • ■ ^ ^ • °^ Covenants of covenants for the renewal of leases : the question ni general being for the whether the renewed lease is to contain a similar covenant for Renewal 01 Leases. renewal, so giving a right of renewal for ever. Covenants for renewal of leases are considered as real agreements, and go with the land, and therefore will atfect even the legal interest of those who take the estate Avith notice of such leases and covenants (a) : but a covenant for perpetual renewal, entered into by a person having a limited interest in lands, does not bind the estate ; and therefore, if his assignee acquire the inheritance, it is not bound by the covenant (h). A covenant for renewal, which is so framed as to create a perpetuity in the heirs of the body of a particular person, is invalid (c). It has been already stated that a covenant for renewal runs both Running • 1 1 • T 1 1 1 7 ^^'^t^^ Land. With the reversion and the land {a). The leaning of the courts is against perpetual renewals (e) ; and Ordinarily therefore, in order to establish this construction, the intention must perpetual. be unequivocally expressed, and a proviso in general terms, that the lease to be granted shall contain the same covenants and agreements as the lease containing the covenant, has been repeatedly held not to extend to the covenant for renewal (/). An agreement in a lease for lives, that upon the renewing or inserting of any life or (a) Earl of Shelburne v. Biddulph, 6 Bro. P. C. 363. (b) Brcrcton v. Tuohcy, 8 Ir. Ch. R. 190 ; Postlethicaitc v. Lcwthicaite, 2 J. & H. 237 ; 31 L. J., Ch. 584 ; and see I'rurapcr v. Trumper, L. R., 14 Eq. 295 ; 41 L. J., Ch. 295. (f) Hope V. Mayor, tt'C, of Gloucester, 7 De G., M. & G. 647 ; 25 L. J., Ch. 145. {d) Ante, p. 172. (e) Baynham v. Guy's Hospital, 3 Ves. 298 ; 3 R. R. 96. (/) 4 Jarni. Prec. 394 (3rd ed.) ; Tritton V. Footc. 2 Bro. C. C. 636 ; 2 Cox, 174. 392 Chap. IX. — Renewal of Leases. Ch.IX. Sec.I. lives, a certain sum shall be paid by the lessee, his heirs and assigns, Rene IV al {xvhether Cove- Remival ^q ^j-^g igggor, his lieirs and assigns, does not amount to a covenant nants jwr- petnal). Sicinhunic v. Milburn. for perpetual renewal {g). A covenant in a lease of land for ninety- eight years, that the lessor will from time to time renew the lease, and perfect such other assurances as the lessee should reasonably require for strengthening, confirming and sure-making the demised premises, at such rents, and under such covenants and conditions, as in the lease were contained, is not a covenant for perpetual renewal (/<). Where one, in consideration of 5Z. 8s. in nature of a fine, and of a yearly rent of 6s. 9(Z., demised certain ground, with the buildings, &c., for twent3'-one years, with a proviso for distress if the rent were in arrear for fourteen days ; and the lessor covenanted at the end of eighteen years of the term, or before, on request of the lessee, to grant a new lease of the premises " for the like fine, for the like term of twenty-one years, at the like yearly rent, with all covenants, grants, and articles, as in that indenture were contained : " it was held, that this covenant was satisfied by the tender of a new lease for twent3'-one years, containing all the former covenants except the covenant for future renewal (i). AVhere a lessor covenanted to renew the lease at the request of the lessee within the term ; and the lessee did not request, but his executors did; Lord Macclesfield, C, ordered the lessor to renew the demise of the premises for twenty-one years, that being the usual term, but said that though the new lease was to be made on the same covenants,yet that that did not take in a covenant for renewing {k). In another case, premises were demised for three lives and for twenty- one years after the death of the last survivor. The lessor covenanted with the lessee that if he should lose a life and think proper to have a new life put in, then, within six months after the death of the first life, and so on continuing the term and estate thereby demised, the lessor would put in a new life ; it was held, that the lessee had power to introduce one new life only, and that one in the place of the first life dropping, but with a new term of twenty- one years, commencing with the death of the survivor of the two survivors and the new life (/). Also in Sicinhurne v. Milburn (m) a right of renewal was held not to be perpetual, but to be a right of renewal as often as any of three lives should drop, but the covenant in this case was so special, that a reference thereto is considered sufficient. (7)- Smyth v. Kanglc, 7 CI. & Fin. 405 ; 1 West, 184. {/i) Brovnc v. Tvjhc, 2 CI. & Fin. 396. (?) higulden v. May, 7 East, 237 ; 2 New R 449 ; 9 Ves. 331. (k) Hide V. Skinner, 2 P. Wms. 197 ; but see 3 Atk. 448. {I) Walmcsley v. Pilkington, 35 Beav. 362. (?n) Swinhuiircx. Milhurn, 9 App. Cas. 844 ; 54 L. J., <,). B. 6. Sect. 1. — Covenants to Eenew — perpetual or not. 393 But although ])rima facie a lessor is not taken to have intended to Ch.IX. Sec.1. enter into a covenant for perpetual renewal, if there are in the lease , Rincwal "t • f • ■ ^ -TT- ^ r-i -n • (whether Cove- expressions indicative oi such an intention, the High Court will give nantn per- effect thereto {n). Thus, where a lease for lives contained a covenant P(-'t>(aJ)- on the death of either of the cestui que vies to execute a renewed Terpetual . Renewal, lease at the same rent, and subject to the same covenants, " includ- ing this i^resent covenant : " it was held, that this was a covenant for perpetual renewal, and that the lessee was entitled to have inserted in the renewed lease a covenant for renewal totidem verhis with that contained in the original lease, but with the name of the new cestui que vie substituted for that of the deceased (o). It was once held that a lessor and his ancestors had, by their own acts of successive renewals, construed a covenant in a lease for lives to be for a perpetual renewal, and that he was therefore bound by it (2:'). But in a subsequent case, this method of construing the covenant by the equivocal acts of the parties was repudiated {q). One of two lessees has no single right of renewal (r). Renewal to If a lease for ninetj^-nine 3'ears, determinable on three lives, be Lessees. conveyed in trust for A. for life, and A. covenant to use his utmost Breach of endeavours, as often as anv of the persons on whose lives the ^[^venant to ' . " endeavour •premises are held shall die, to renew the same b}^ purchasing of the to renew. lord of the fee a new life in the room of such as shall fail, it is no breach of the covenant, if upon one of the lives failing he procure a renewal upon his own life (s). A sum falling short of three 3'ears' annual value of premises, calculated on the rack rent, is not an unreasonable fine for the renewal of a lease by the Duchy of Corn- wall ; and therefore the lessee having covenanted in a sub-lease to do his utmost endeavours to procure a renewal of the letters-patent, on either of three cestui que vies dying, commits a breach of his covenant by not paying such a fine demanded for a renewal {t). Under a trust to renew leases out of the rents, issues and profits. Trust for followed by a power to mortgage in case, from any cause, the money wanted to pay the fines should not be produced by the ways and means aforesaid, it was held that the rents being sufficient for that purpose, the fines ought to be paid out of the income («). A trust for renewal fails if renewal be impossible {x). [n) Hare v. Burgess, 4 K. & J. 45 ; 2 New R. 449. 27 L. J., Ch. 86; Bridges v. Hitchcock, (?•) Finch v. Undericood, 45 L. J., Ch. 1 Bro. P. C. 522 ; Furnival v. Crcioe, 522 ; infra, p. 395 (/). 3 Atk. 83. (s) Scuclamore v. Stratton, 1 Bos. & P. (o) Bare v. Burgess, supra. 455. {j}) Cook V. Booth, Cowp. 819. {t) Simpson v. Clayton, 4 Biug. N. C. (q) BaynJiam v. Gtcy's Hospital, 3 Yes. 758. 298 ; 3 R. R. 96 ; Baton v. Luoit, Id. 694; (?t1 Solleyx. Wood, 29 Bear. 482. Igguldcn v. May, 9 Ves. 331 \1 East, 237; (x) Macldy v. Hale, 45 L. J., Ch. 791. 394 Chap. IX. — Eenbwal of Leases. Ch. IX. Sec. 2. Sect. 2. — Forfeiture of Right to Renew. Renewal {Forfeiture of Where it was covenanted that the lessor would renew whenever •^'^ ^°'' any life or lives dropped, provided that if the lessee, his executors or Foifeituie of administrators, upon or after the dropping of any life or lives, should Right to '^ .,,,-.... Renew by not refuse or neglect to renew the said lease, or make application therein, applying in ^^ tender such new lease, and pay or tender a certain fine, then the indenture should be void ; it was held, that the lessee forfeited his right of renewal by not applying when the first life dropped (?/). But where a lease, for sixtj'-one years, of house property contained a covenant that the lessee might renew, on certain terms, at the end of each and every term of fourteen years, on giving ten days' notice of such his desire ; and the lessee, or those claiming under him, continued in possession after the two first terms of fourteen years each had expired, and then, before the expiration of the third four- teen years, desired to renew : held, that the lessee was not precluded, by his not having given notice earlier, from claiming his right to have a renewed lease in the terms of the covenant {z). A covenant in a corporation lease to renew upon the falling in "of one life for ever," cannot be extended to the case where two are sufi"ered to fall in, although a compensation be offered (a). Where A. and B. covenanted in a lease for sixty-one years, that at an}' time within one year after the expiration of twenty years of that term, upon the request of the lessee and his paying 6Z. to the lessors, they would execute another lease of the premises for the further term of twenty years, to commence from the expiration of the said term of sixt^'-one years, &c., and so in like manner at the end of every twenty years during the said term of sixty-one years, for the like consideration and uj)on the like request, would execute another lease for the further term of twenty years, &c., to commence at the expiration of the term then last before granted, &c. : it was held, that, under this covenant, the lessee could not claim a further term at the end of the last term of twenty years in the lease, where he had omitted to claim a further term at the end of the first and second twenty years in the lease i})). Where a lease renewable for ever had expired by the dropping of the lives, so that, in fact, only a tenancy' from j-ear to 3'ear existed ; but the owner in fee of the land, the tenants and their sub-tenants, had all been acting for years on the terms of the lease, which was at length duly renewed : held, that no one of them {y) Baynham v. Gtcijs Hospital, 3 Ves. 4 Eq. 310, 313 ; 36 L. J., Ch. 440. 295 ; 3 R. R. 96 ; Eaton v. Lyon, 3 Ves. (a) 3 Kro. C. C. 529. 690. {b) Itubcry v. Jcrvoisc, 1 T. R. 229 ; (^^ Boyg V. Midland 11. Co., L. R., 1 R R. 191. Sect. 2. — Forfeiture of Eight to Renew. 395 could subsequently set up in equity claims adverse to the several Ch.IX.Sec.2. characters they bore under such lease and the sub-lease (c). Renewal . {Forfeiture of Where the lessee has not performed his covenants to repau" and Right to). insure, the court will not decree a specific performance of a perpetual Forfeiture of covenant to renew " provided the rent should have been paid and the ^io^t t"^ ^ Kenewal by covenants kept" {cl). So where the covenant was to renew at the end Non-per- of the term " if it should not be sooner determined by the lessee's n'"i?"?';.° acts or defaults " () Keech v. Sandford, Select Cas. Ch. 61 ; Fitzgibhon v. Scamlan, 1 Dow. 261 (after twenty years) ; Mill v. Mill, 3 H. L. Cas. 828 ; Coo'pcr\. Phibhs, L. R., 2 H. L. Cas. 149. [q] Mnlranqi v. Dillo,>, 1 Ball & 1^. 409 ; Griffin V. Griffin, 1 Sch. & Lef. 352. Sect. 4. — Renewal by Trustees, Agents, etc. 397 premises iu the original lease, but also additional lands, the trusts will not attach upon the additional lands (r). The ground of decree- ing renewals b}' trustees and executors to enure to the benefit of cestui que trusts is public policy, to prevent persons in such situations from acting so as to take a benefit to themselves (s). Any trustee of any leaseholds for lives or years which are renewable either under covenant or contract or b}' custom or usual practice, ma}', if in his discretion he see fit, and must, if so required by any person having an}- beneficial interest iu tlie leaseholds, use his best endeavours to obtain renewals ; and may also out of trust funds in his hands pay any money required for the renewal (0- A person acting as agent, or in an}' similar capacity for a person having an interest in a lease, cannot renew it for his own benefit (»). If a person having a limited interest in a renewable lease, as a tenant for life, renews it in his own name, he will be held a trustee for those entitled in remainder to the old lease (x). As to renewal at best rent under a power, the authorities concur that in a lease under a power a covenant to renew at the expiration of the term is a good covenant, even though the first lease was for the full term authorized by the power ; but that when the time for carrying the covenant into effect arrives by the expiration of the first lease, then it must be shown that the rent and covenants stipulated for are the best rent and the proper covenants at that time (//). If one of several persons jointly interested in a lease renew it in his own name he will hold in trust for the others according to their respective shares (z). And if a person jointly interested with an infant renew, and the renewed lease turn out not to be beneficial, the person renewing must sustain the loss ; if beneficial, the infant can claim his share of the benefit to be derived from it (z). A partner renewing a lease of the partnership premises in his own name will be held a trustee of it for the firm (a). If a mortgagee renew a lease in his own name the renewal is deemed to be for the benefit of the mortgagor, paying the mortgagee his charges [h) ; nor will the case be altered by the expiration of the lease before renewal (c). On the other hand, if a lessee mortgage Ch. IX. Sec. 4. Heueical by Trustees, ^-c. Eenewal by Trustees ^juder Trustee Act, 1893. By Agents. Bv Tenant for Life. Renewal at " best rent "" under a power. By a Person jointly inte- rested with Oiliers. By a Partner By a j\Iort- g-'.^ ;et 15y a Mort- LMgOl (r) Achcson v. Fair, 3 Dru. & AV. 512. (s) Gnffin V. Griffin, 1 Sch. & Lef. 352 ; Bhwetl V. MilleU, 7 Bro. P. C. 367. («) Trustee Act, 1893, s. 19 ; ante. Chap. I., Sect. 15. (?0 Wlute& Tudor, L. C. 41 (2nd ed.). {x) KeecJh- v. Sandford, "White & Tudor, L. C. 41. In Phillips v. I'liillips, 54 L. J., Ch. 943, a tenant for life who had twice renewed, and then purchased the reversion, was held to hold the fee thus itcipiired in trust for the remaindermen. {y) Per Kay, J., in Gaslight and Coke Co. V. To2cse, L. R., 35 Ch. D. at p. 534, citing Do^cell v. Beiv, 1 Y. & C. Ch. 345 ; Byas V. Cruise, 1 Sch. & Lef. 549. {z) Id. 39. [a) Id. 40 ; Clrqg v. Edmondson, 8 De Gex, M. & G. 787". {h) White & Tirdor, L. C. 40 (2nd ed.). (c) Id. 40 ; Rakestrmo v. Brewer, 2 P. "\Vms. 510 ; Nesbitt v. Tredeiinick, 1 Ball & B. 29. 898 Chap. IX. — Eenewal of Leases. Ch. IX. Sec. 4. Roicical hy Trustees, Sic By Owner of incumbered Lease. Against Volunteers. Or Purchasers with Xotice. Xot against a (J nasi Tenant in Tail of Leaseliolds. Nor against a Stranger. Sale of Right of Renewal. Nature of Relief in Equity and upon what Terms. leaseholds, and afterwards obtain a new lease in his own name, the new lease will be held a graft on the old one for the benefit of the mortgagee {d). Upon the same principle, if a person entitled to a lease subject to debts, legacies or annuities, renews in bis own name, the incumbrances will remain a charge upon the renewed lease {e). The same remedies which may be had against trustees, executors, and persons wdth limited interests renewing leases in then- own names, ma}^ also be had against volunteers claiming through them (/). And against purchasers from them with notice express or implied (/). But the cestui que trust may be barred by acquiescence and lapse of time(/). A quasi tenant in tail of leaseholds being the absolute owner of them is not barred by the same equities as persons having merely limited interests {(j). Where a stranger obtains a renewal of a lease, or a reversionary lease, the old tenant has no equity against him (//) ; nor, it seems, has a lessee any equity against his sub-lessee who obtains a renewal from the head landlord without consulting him {i). If a person having a right of renewal sells such right, the money produced by the sale will be affected Avith the same trusts as the leaseholds, if renewed, would have been (A). A trustee who has renewed will be directed to assign the lease, free from incumbrances, except, as it seems, any lease made by him bona fide at the best rent (/) ; and he must account also for the mesne rents and profits which he may have received {m), notwithstanding the lease had expired before the action was brought («)• But where a tenant for life has renewed, the account will commence only from his decease (o). On the other hand, the person who has renewed the lease will be entitled to be indemnified against the covenants he may have entered into with the lessor {p), and he will have a lien upon the estate for the costs and expenses of renewing the lease, with interest (g), and for the expenses of lasting improvements (r), but not for any improvements adopted as a mere matter of taste, or as matter of personal convenience (s) ; at the same time there may be many charges in the nature of waste, and as to deterioration. [d) Smith V. Chichester, 1 Conn. & Law, 486. (c) White & Tudor, L. C. 41 (2nd ed.). (f) Id. 42. (q) Blake v. Blake, 1 Cox, 266 ; 1 R. R. '35. (/O White & Tudor, L. C. 44 (2nd ed.). (t) Mainisell v. O'Brien, 1 Jones (Ir. Ex.), 176. {k) White & Tudor, L. C. 41 ; Oiccn v. Williams, Ambler, 734. (Z) Id. 41 ; Bowles v. Stetcarf, 1 Sch. & Lef. 230. (m) Id. 41. («) JEyrcY. Dolphin, 2 Ball & B. 290. (o) Gcddings v. Gcdclincjs, 3 Russ. 241. (2>) Kceeh v. Sandford, Select Cas. Cli. 61 ; Mill V. Mill, 3 H. L. Cas. 828 ; Wliitc ^i^d ever}' rent reserved on a lease, is a rent- service {ii). A rent-charge is where land is charged with a rent b}' deed or will ivitli poiver to distrain for the same, but the owner of the rent has no reversion in the land : as where a person conveys to another land in fee-simple, reserving a certain rent payable thereout, with a clause of distress, that if the rent be in arrear or behind for a specified number of days it shall be lawful to distrain for the same. In such case the land is liable to the distress, not of common right, but by virtue of the clause in the deed ; and therefore it is called a rent-charge, because in this manner the land is charged with a distress for the payment of it (o) . A fee-farm rent is a rent-charge reserved on a grant in fee ; the name is founded on the perpetuity of the rent or service, and not on the amount {p). (c) Reg. V. Wcsthrook, 10 Q. B. 17S. And sec Daniel v. Grade, 6 Q. B. 145 ; post, 407. (/) Co. Lit. 47 a ; Gilb. Rents, 24. ig) Hancock v. Austin, 14 C. B., N. S. 634. {h) Sclby V. Greaves, L. R., 3 C. P. 594 ; 37 L. J., C. P. 251. And see Smith v. Egginton, 43 L. J., C. P. 140 ; L. R., 9 C. P. 145 ; 30 L. T. 521. (i) Marshall v. Schoficld, 52 L. J., Q. B. 58. (^•) Bac. Abr. Rent (A.). (/) Co. Lit. 87 b ; Gilb. Rents, 9. {m) Lauqhevw Huniiihrey, Cro. Eliz. 524. (n) Smith L. & T. 112. " (o) Co. Lit. 143 b ; Oilb. Rents, 17, 38 ; Bradbury v. Wright, 2 Doug. 628. {p) Co. Lit. 143 b, n. (.t) : Governors of Christ's Hospital v. Harrild, 2 M. & G. 713, n. ; Smith L. & T. 114 (2nd ed.). Sect. 1. — Different kinds of Rent. 405 Ptent-seck (redditus-siccus), or barren rent, is in effect nothing Ch. X. Sec. 1. more than a rent reserved by deed or will, but icithout any clause of I>iffercnt kinds . ' of Rent. distress ; and differs from a rent-charge only in being reserved without a clause of distress (5). A right to distrain for rent-seek, however, Rent-seek. "as in the case of rents reserved upon lease," and also for rent of assize and chief rents, is given by the Landlord and Tenant Act, 1730, 4 Geo. 2, c. 28, s. 5, which applies to all. rents " duly answered or paid for the space of three years within the space of twenty years " before that session of parliament, "or should be thereafter created." The three years mentioned in this section need not be consecutive {r), and a fee-farm rent may be distrained for if brought within the section (.s). Rents of assize are the certain established rent of the freeholders Rents of Assize. and ancient copyholders of a manor, and which cannot be departed from : those of the freeholders are frequently called chief-rents, and Chief-rents. both sorts are indifferently denominated quit-rents, because thereby Quit-rents. the tenant goes quit and free of all other services {t). Payment of an unvaried rent for a long series of yeai's to the lord f ™']Qjj^'\"^e of a manor is evidence only of a title to the rent (which is presumed to be a quit-rent), but not to the land in respect of which the rent is paid (//) ; but in Weller v. Stone (.r), the payment of an "encroach- Building on ment rent " of 4s. 10(/. since 1811, the land having been dealt with as held in fee simple and built upon since 1805, was held to be evidence of a tenancy from year to year only, so that the plaintiff' recovered the land in an action brought in 1878 upon a half-year's notice to quit ; and it was further held that the defendant was not entitled to equitable relief on the ground of his predecessors having built to the knowledge of the predecessors of the plaintiff. For such relief to be grantable, the tenant must either be in possession under a mistaken belief of title, which the reversioner must have known of and stood by, or the tenant must have laid out money upon the faith of an expectation, created or encouraged by the reversioner, of a lease (y). A peppercorn rent is a nominal rent not intended to be paid, but Peppercorn stipulated for on the view (which is not correct) that the reservation of some rent is necessary to constitute a lease. It is most frequently found in building leases (see s. 8, sub-s. 2 of the Settled Land Act, 1882, which authorizes it in leases of settled land), in which it is usually reserved for the first few years of the term only, during which the houses to be built will be in course of erection only, and therefore not yet profitable to the lessee. iq) Gilb. Rents, 38. 173 ; here tlie rents had been 25. and (/■) Musgrave v. Emerson, 10 Q. B. 326. 4s. M. for thirty-nine years. (s) Id. ; Bradbury v. Wrujht, 2 Dougl. (■>■) JVcllcr y. Stone, 54 L. J., Ch. 497 ; 624. ' 33 W. R. 42 (C. A.). {t) Gilb. Rents, 38 ; Co. Lit. 144, (y) llamsdcn v. Dyson, L. R., 1 H. L. Harg. n. (5). 129 ; 12 Jur., N. S. 506 ; 14 AV. R. 926. [u) Doc d. Whittick v. Johnson, Gow, 406 Chap. X. — Eent. Ch. X. Sec. 1. Different kinds of Rent. Enlargement into fee-siinple of Long Lease at Rent of no Money Value. Rent barred by Time. Rack-rent. Fore-hand Rents or Fines. Rent payable in Advance. The residue, if not less than 200 3'ears, of a term ;not liable to be determined by re-entry, or created by sub-demise) originally created for not less than 300 years, without an}- trust for the freeholder, and without an}^ rent " or with merely a peppercorn rent or other rent having no money value " {z) may, under sect. 65 of the Conveyancing Act, 1881, as amended b}' sect. 11 of the Conveyancing Act, 1882, be enlarged into a fee simple. The Statute of Limitations (see Chap. XIII., Sect. 1) does not apply to rent reserved on a lease (a) ; but the provisioris of the Con- veyancing Acts above mentioned apply also to cases where a rent having money value has become barred by lapse of time. Rack-rent is a rent of the full annual value of the tenement, or near it {h). A fine or premium given by the lessee to the lessor at the time of taking or renewing a lease is in the nature of a fore-hand rent, and has been considered as an improved rent (c). In the case of renewal of a lease by an ecclesiastical corporation, if an accident, which has not happened from their fault or that of the tenant, delay the lease, a new member coming in has his proportion of the fine (c). Sometimes rent is made payable from quarter to quarter or other- wise in advance. Such rent could not of course be recovered in advance in an action for use and occupation id), but a distress may be made, or an action maintained for such rent, as soon as it becomes payable according to the terms of the demise (iffcrent kinds rent was to be paid quarterly on the usual quarter days " and always, '- — if required, a quarter in advance," it was held that a quarter's rent was due after reasonable notice given on demand at any time of a quarter (?■). Sect. 2. — Reservations of Rent. (a) Mode of Reservation. The usual formal reddendum in a lease is not essential. Any Eeservation expressions showing the intention of the parties that a rent shall be suffideirtl^^ payable will be a sufficient reservation Qc) . The reservation of rent, certain, however, ought to be certain as to the amount and the time when Dankl\. , , . Grcicif. payable (/) ; although if there be anything in the reservation by which the amount of the rent may be ascertained, this will be as good as if the sum itself were clearly- sj)ecified, in accordance with the maxim Id certum est quod certum reddi potest (m). Thus in Daniel v. Grade, the proprietor of a house, and of a marl pit and brick mine, demised the house by unwritten agi-eement to D. from a day named, and it was at the same time agreed between them, without writing, that D. should take the marl pit and the brick mine, and should pay quarterly, at the usual quarter days, 8d. jjer solid yard for all the marl that he got, and Is. 8d. per thousand for all the bricks that he made. D. took the marl and made bricks accordingly, and paid the stipulated sums for a time ; but they afterwards fell into arrear. It was held, that the agreement for the marl pit and brick mine was a demise of the land from year to year, at a rent capable of being ascertained with certaint}-, for which, con- sequently, the lessor might distrain {n). Eent may be reserved to commence before the lessee is to enter Rent may upon the enjoyment of the land. Thus where a man made a lease j^°fo™*^En^- of Blackacre to commence in futuro, and of Whiteacre to begin ment. in praesenti, rendering rent payable at Michaelmas before the com- mencement of the term in Blackacre ; it was held to be a reservation immediately ; for it w^as but one entire rent, and as such was payable (/t) Witty V. Williams, 12 W. R. 75.5. Mod. 79 ; Lit. s. 213 ; Gilb. Rents, 9. {i) London and Westminster Loan Co. (m) Orbij v. Mohun, 2 Vern. 531, 542 ; V. London and North Western R. Co., 2 Freem. 291 ; 3 Bro. P. C. 248 ; Gilb. [1893] 2 Q. B. 49 ; 62 L. J., Q. B. 370 ; Rents, 9, 10 ; Co. Lit. 96 a, 142 a. 69 L. t. 320 ; 41 W. R. 670 ; 5 R. 425. (n) Daniel v. Gracic, 6 Q. B. 145 ; and {k) Gilb. Rents, 30, 33 ; Doc d. Rains y. see Pollitt v. Forrest, 11 Q. B. 949 ; Boivers Kncller, 4 C. & P. 3 ; Attoc v. Hemmings, v. Nixon, 12 Q. B. 546 ; Edmonds v. East- 2 Bulstr. 281 ; cited 2 H. & C. 427. wood, 2 H. & N. 811, 826. [l) Parker v. Harris, 1 Salk. 262 ; 4 408 Chap. X. — Eent. Ch. X. Seu. 2. Hescr rations of Men t ■ {Mode of). From what Rent must issue. AVhere Reser- vations are entire or several. Wliole De- mise void if Part cannot be legally demised. according to the reservation (o). A subsequent agreement may by relation operate to make a reservation of rent from the beginning (p). Proj)erly speaking, a rent can be reserved out of no inheritance but such as is manurable, as it is called, or upon which the lessor may enter to distrain {q) ; a lease of the vesture or herbage of the land reserving rent is good, because the lessor ma}' come upon the land to distrain the lessee's beasts feeding thereon ; but a reservation of grass, herbage, or other vesture of the land, would be bad, because they are part of the thing demised (r). There is this difference between a reservation, which is always of a thing not in being, but newly created or reserved out of the land or tenement demised ; and an exception, which is ever a part of the thing granted, and of a thing in being is). There is a difference between a rent reserved entire, upon a demise of several things in the same lease, and where the rent is not originally reserved entire, but the reservation is several and appor- tioned to the several things demised : for instance, if a lease be made of several houses, rendering the annual rent of 5/. at the two usual feasts — viz. for one house 3^., for another 10s., and for the rest of the houses the residue of the said rent of 5L — with a clause of re-entry into all the houses for non-payment of any parcel of the rent : this is but one reservation of one entire rent ; because all the houses were leased, and the 5/. was reserved as one entire rent for them all, and the " viz." afterwards does not alter the nature of the reservation, but only declares the value of each house {t). But if the lease had been of three houses, rendering for one house 3^., for another 20s., and for the third 10s., with a condition to re-enter into all for the non-payment of any parcel ; these are three several reservations and in the nature of three distinct demises ; and each house in this case is only chargeable with its own rent {u). Where there is a demise of premises, and an entire rent reserved, if any part of the premises could not be legally demised, the whole demise is void (.r). But in an action for rent upon an indenture of demise, a plea of the defendant that prior to the making of the demise the plaintiff had demised two roods, part of the demised premises, to A., which demise to A. was still in force, whereby the defendant was kept out of possession of that part of the demised premises, was held no answer to the claim for the entire rent reserved. This was because the demise to the defendant, which 26. (6) Gilb. Rents, 25. Ip) M'Lcish V. Tate, Cowp. 781. iq) Gilb. Rents, 20. (?•) Co. Lit. 47, 142 a; Gilb. Rents, (s) Ante, Chap. Y., Sect. 10. (t) Gilb. Rents, 34. {u) Gilb. Rents, 35 ; Tanfkld v. Rogers, Cro. Eliz. 341. {.v) Doe d. Grijith v. Llojd, 3 Esp. 78 ; 6 R. R. 813. Sect. 2. — Eeseevations of Eent (Mode of). 409 was under seal, operated as a lease in possession of all that part of Ch. X. Sec. 2. the lands of ■which the lessor had the possession at the time of the Reservations . . . . of Rent demise, and as a lease of the reversion, with the rent incident {Mode of). thereto, of that part of the lands of which the lessor had not the possession, and therehy conveyed to the defendant the whole interest in respect of which the entire rent was reserved (y). In early times it was much tlie practice to reserve the rent payable Eeservation on two alternate days, as on the usual feasts or days of payment, or Days. '^ within a certain number of days afterwards (z). But this being found to be attended with serious inconveniences (a), rent is now generally reserved on a day certain, with a proviso for re-entry on non-payment within a specified number of days after the day appointed. If rent is intended to be paid in advance (h), the reservation Rent in should be clearlj^ expressed. A restriction with regard to leases made b}" colleges in the Corn-nnt universities of Oxford and Cambridge, and by the colleges of Leasee "^ ^'^^ "Winchester and Eton, is created by statute 18 Eliz. c. 6 (c), by which it is directed that one-third of the old rent then paid should for the future be reserved in wheat or malt, reserving a quarter of wheat for each 6s. 8d., or a quarter of malt for ever}^ 5s., or that the lessees should pa}" the same according to the price that wheat and malt should be sold for in the market next adjoining to the respective colleges, on the market day before the rent becomes due, it being added that " all leases otherwise made and all collateral bonds or assurances to the contrary, b}' any of the said corporations, shall be void in law to all intents and purposes." Until quite recent times many college leases were framed more or less in accordance with this Act, but the practice of so framing them has now been almost entirely abandoned (fZ). If the reservation be of corn — as in the case of a hospital renewed lease, where the redden- dum was " so man}' quarters of corn " — it will be understood to mean legal quarters, reckoning the bushel at eight gallons (e). A reservation of eight bushels of grain in lieu of one quarter is good, because it is all one in quality, value and nature (/"). In a lease of land for twenty-one years from the 2oth of March, Computation 1848, it was covenanted that the lessee should pay 620Z. for the first ^l^^'^l %^^ (y) Bed. Commrs. of Ireland v. O'Con- Leases)." °^ Corn. nor, 9 Ir. Com. L. R. 242. (d) The editor is indebted to Mr. G. E. Kendall v. {z) Anon., 2^\\o\y. 77. Baker, Estates Bursar of Magdalen Baker. (ft) Gill). Rents, 52, 53 ; Chin's ease. 10 College, Oxford, for the information on Co. R. 127 ; Bigginx. Bridge, 3 Keb. 534. ■which this statement is founded. (b) See the cases ante, 406. (e) Master, d-e. of St. Cross v. Ld. (c) See this statute and 39 & 40 Geo. 3, Howard de Walden, 6 T. R. 338. c. 41, sect. 7 of which speciallj- saves it. (/") Mountjoy's case, 5 Co. R. 3 b ; Chitty's Statutes, Vol. IV., tit. " Land- Sug. Pow. 797. lord and Tenant (Ecclesiastical, &c. 410 Chap. X.— Eent. Ch. X. Sec. 2. year, to be reduced or increased in each subsequent year of the Reservations term of twentv-one years according to the " average price of wheat of Rent n ^ • -i , ^ 1 [Mode of). in any one year of the said term, ' such average "to be taken and ascertained from the then current j'ear's averages, Avhich were taken in the month of January in every year under and by virtue of the Tithe Commutation Act (6 & 7 Will. 4, c. 71), s. 56," which is the result of the sales " during seven years ending on the Thursday next before Christmas-day then next preceding." It was held, that the rent might be computed according to such septennial average so published in each year (g). Sliding-scale A legislative attempt, in manner as above, to provide for the Jlinin'o-^" partial division of profit and loss between landlord and tenant by a Lecases by ^-ent rising or falling with the price of the produce of the demised premises, has been made in the case of mining leases by s. 8 of .the Settled Land Act, 1890, which provides that : — " The rent may be made to var}- according to the price of the minerals or substances gotten, or any of them : " and that " Such price may be the saleable value, or the price or value appearing in any trade or market or other price list or return from time to time, or may be the marketable value as ascertained in any manner pre- scribed by the lease (including a reference to arbitration) or may be an average of any such prices or values taken during a specified period." in Agiieiil- The late Lord Tollemache of Helmingham set on foot a sliding by iigieeiuent. scale of rent, rising or falling with the average price of wheat, barle}', and oats. This scale appears to have been in force on Lord Tollemache's Suffolk estates with satisfaction to the tenants and himself (/<). (b) Construction of Preservations. Cunstnutiou Where there are special days of payment mentioned in the redden- tionr^ene- duni, the rent ought to be computed according to the reddendum lally. and not according to the habendum (?) ; but where the reservation is general, as half-yearly or quarterly, and no special days are mentioned, there the half-year or quarter must be computed accord- ing to the habendum (A;). If a man make a lease the first day of May, reserving rent payable quarterly, this means quarterly from the making of the lease : for if the beginning of the quarter should be construed to be any other day than the date of the lease, the (f/) Kendall v. Baker, 11 C. B. 842. to the length of the term, see Burchell v, {h) See a form of reddendum according Clark, 46 L. J. 115 (C. A.), and 154, to this scale in Lely & Peck's Precedents ante. of Leases, Part XII., Form 23. (k) Tomkins v. Pinseiit. 2 Ld. Raym. (i) As to discrepancy between the 819 ; 1 Salk. 141 ; 7 Mod. 96. habendum and reildendurn with respect 8ect. 2. — Eeseevations of Rent (Construction of). 411 lessor would lose the profits of his land for some time, and con- ^"- ^- ^^■^- -■ sequently not have quarterly payment made during the continuance of^Relitlcon- of the lease (/)• Where rent was to be payable by a parol demise struct ion of ). from the Lad3'-day following, evidence of the custom of the countr}' was admitted to show that by " Lad3^-day," " Old Lady-day" was intended (m). A net rent is a sum to be paid to the landlord clear of all "Net Rent." deductions, so as to include, for instance, land tax and sewers rate (n). Where a lessee of a collier}^ covenanted to pay as rent "one-third Mining part of the money that should arise, be made, received or produced from the sale of the coals:" and also covenanted to keep "true accounts of all coal daily raised, and to make and deliver true copies thereof;" it was held, that the rent was to be calculated on the amount of coals sold, not on the amount of mone}' actual!}- received for them (o). Mining leases frequently stipulate for two rents : first, a dead Dead Rent, rent, i.e. a rent payable whether the mines be worked or not ; and secondly, a royalty upon the minerals raised. In one case the demise was of all right and interest in coals and other minerals in a certain estate, yielding and paying yearly for every ton of coal that should be worked, not exceeding 13,000 tons in any year, the sum of 8d. per ton, or yielding that amount of money, viz. 433/. 6s. 8d., as fixed rent, whether the coals should be worked or not, and for every ton above 13,000 tons 9(7. per ton. Tlie lessee covenanted to raise 13,000 tons of coal in each year, and to pay in the same terms as the reddendum. This was held to be an abso- lute covenant to pay that fixed rent, although the mine became exhausted (_/;). In another case the covenant was, that the lessee would deliver quarterly to the lessor a certain proportion of all coal raised, or pay him quarterly the value in money ; provided, that in case at the end of the first quarter of any year the quarterly delivery or payment should not be equal to S7l. lOs., then the lessee should pay such additional sum as would make up 37/. 10s. ; and in case at the end of the second quarter such deliveries or payments for that and the preceding quarter should not be equal to 75/., then the lessee should pay such additional sum as would make up 75/., with a similar provision for the third and fourth quarters, it being the intent and meaning of the parties that the royalties (l) Gilb. Rents, 50 ; 2 Roll. Abr. 449, 450. (?») Doe d. Ball v. Benson, 4 B. & A. 588 ; Dcnn v. IToj^kinson, 3 D. & R. 507 ; Smith V. IValtoH, 8 Bing. 235 ; luit see Hocjij V. Norris, 2 F. & F. 246. [n] Bennett v. Womack, 7 B. & C. 627 ; 3 C. & P. 96 ; 31 R. R. 270. (o) Edwards v. Recs, 7 C. & P. 340. (})) Marquis of Bute v. Thornpson, 13 M. & W. 487 ; Jcrvis v. Tomkinson, 1 H. k N. 195, 208. 412 Chap. X. — Eent. Cn. X. Sec. 2. Reservations of Rent [Con- struction of). Supply of Worrls in the Construction. thereby named should always amount to the sum of 150/. per annum at the least. This was held to be a qiiarteiiy minimum rent, and it was decided that an excess of this royalty in one quarter could not be set off against a deficiency in a previous quarter (q). But where A. demised to B. certain pits of cla}' on his land for twelve years, B. to pay 2s. 6d. per ton on all clay raised half-yearly, and to raise not less than 1,000 tons, nor more than 2,000 tons yearly ; it was held, that this was not an absolute covenant by B. to raise 1,000 tons yearly or else pay the rent, but that there was an implied condition that there existed clay to the amount of 1,000 tons yearly capable of being raised (r). If rent be made payable yearly, without saying " during the said term," the payment must nevertheless be made ever}' year during the continuance of the lease (s). If a lease be made for j^ears, provided that the lessee shall pay at Michaelmas and Ladj'- day lOZ. by equal portions " during the term," though this rent is not made payable yearly, j^et the law construes it to be so, because it is payable at the two feasts during the term (t) : so, if a man demise for five years, rendering 100/. to be paid by equal portions during the term, it must be paid yearly, though that word was omitted (»)• If a lease be made rendering rent at the two usual feasts of the year, without specifying what feasts, the law- construes such payments to be made at Michaelmas and T^ady-day, because those are the usual da3s appointed in contracts of this nature for paj'ments (x) : so if a man grant a rent payable at the two usual feasts of the year, this means by equal portions, though not so mentioned in the deed, because where there are two several days appointed for payment, it is the most reasonable construction that a moiety of the rent shall be paid at each day (jj). If a man make a lease to another on the 6th da}' of August, rendering yearly rent at two terms of the year, viz. at Lady-day and Micliaelmas, by equal portions ; though in this case, by the appointment of the parties. Lady-day be tlie first term mentioned, yet the first payment shall be made at Michaelmas ensuing the date of the lease, for without such transposition of the words of the deed, the intention of the parties could never be fulfilled, because the rent is reserved annually, and the lessor would lose the profits of one half-year if the first rent was not payable at Michaelmas ; and the lessee would enjoy the land from the date of the lease to the first Michaelmas, and likewise from the last Lady-day of the term to the expiration iq) bishop V. Goodwin, 14 ]^I. k W. 260. (r) Clifford v. Walts, L. R., 5 C. P. 577 ; 40 L. J., C. V. 36 ; 22 L. T. 717 ; 18 W. R. 925. («) Gilb. Rents, 51 ; Harrinijloii v. IVisc, Cio. Eliz. 486 ; iloore, 459 ; Nov, 57. (t) Gilb. Rents, 50. («) Com. Dii ^ '"■'•- _ , 0/ Rent [Coii- following, before which time the lease would have expired (2') . B}^ structionof). indenture dated 21st March, a messuage was demised from 25th March then instant, for seven years wanting seven days, paying therefor yearly and eyer}' year during the term the yearly rent of 285Z. by four equal quarterly payments on the 25th of March, 24th June, 29th September, and 25th December, in every year commenc- ing from the said 25th March then instant ; it was held, that this was either a coyenant to pay a beforehand rent, whereby all the payments would become due within the term, or else that, by yirtue of the words yearly and every 3'ear, the lessee would be liable for the last quarter's rent on a day after the expiration of the term ((/)• "Where, by agreement, dated 8th SeiDtember, a house was let for seven years at an annual rent payable quarterly, the first imymcnt to be made on the 25th March following, it was held that only a quarter's rent became due on the 25th March, and that in effect the payment for the first quarter was postponed until after the end of the term {h). Each periodical payment of rent is termed a "gale," from " gaval," a rent or duty, and each " gale" is a distinct debt (c). In a lease of a farm, the clause *' the tenant to perform each year for the landlord at the rate of one day's team work with two horses and one proper person for every SOL of rent when required {except at hay and corn harvest), without being paid for the same," extends to other than agricultural work, such as hauling coals ; but it does not oblige the tenant to find a cart, plough or other vehicle or machine necessary for the performance of the work (d). ^Gale." '^Teain Work. "" (c) To ivliom lient reserved. Rent must be reserved to the lessor himself, and not to a l!ent must be stranger, for it is something paid b}' way of retribution or compen- Lessor him- sation for the land, and ought to be made to him from whom the st-^*'- land passes ; only the crown can make a reservation of rent to a stranger {e). If A., and B., his son, b}' lease reciting that B. is the heir apparent of A., let for years to commence after the death of A., rendering rent to B., it will be yoid ; for a reservation to him b}' his proper name, and not to him as heir, is the same as if it were to a stranger (/). Where by a lease rent was reserved to a person not a [z) Gilb. Kents, 49. 51 ; Hill v. Grange, Plow. 171. (ft) Hopkins V. Helmore, 8 A. & E. 463. (i) Hidchins v. Scott, 2 M. k \\. 809. (c) Wdby V. Phillrps, 2 Verii. 129. (rZ) I) like of Marlborough v. Oshorn, 5 B. & S. 07 ; as L. J., Q. B. 148. {c) Lit. s. 346 ; Co. Lit. 47 b ; Id. 143 b ; Gilb. Kents, 54. (/) Com. Dig. tit. Rent (B. 5) ; Oatcs V. Frith, Hob. 130 ; Co. Lit. 47, 143 b ; Sachevcrell v. Froggat, 1 Vcntr. 161 ; 2 Sauud. 370 ; Gilb. Rents, 59. 414 Chap. X. — Eent. Ch. X. Sec. 2. Reservations of Rent {to ivhom re- served) . Effect of . Inaccuracies of Expression as to Parties in the Reser- vation. Reservation bv Tenant for Life. Whitlock's party to the lease, and the lessees covenanted with him and the lessors to pay rent, &c., it was held, that he could not join with the lessors in an action of covenant for non-pajanent of the ventig). Where there is any doubt as to the person to whom the reservation should be made, the clearest and safest way is to reserve the rent generally, during the term {without saying to ichom), and leave it to be distributed by the law in the mode pointed out in WJiitlock's ease (h) : for if the reservation of rent be general, the law directs it to be paid according to the intent and the nature of the thing demised. In such case the rent goes to the person who would have succeeded in the estate if the lease had not been made (i). As rent is intended b}' law to follow the reversion, inaccuracies of expression, by which the reservation is made to other persons than the reversioner, have not the effect of severing it from the reversion ; thus, if the reservation be made to the owner in fee, "his heirs, executors or assigns," the word ''executors" will be rejected, and the rent will go with the reversion and belong to the heirs (A), In an}' case (except under a poAver) it is safe to make the reservation to the lessor, " his heirs, executors, administrators, and assigns" (l). If a lessee for a term of j^ears make a lease for a less term of j'ears, rendering rent to him " and his heirs during the term," it will go to his executors (m) ; but it seems to be otherwise when the words "during the term" are omitted (n). If a tenant in tail demise for years, rendering rent to himself and his heirs, this goes to the heir in tail (o), and not to the general heir. So if a tenant in tail to him and the heirs male of the bod}' of his father, lets the land, rendering rent to him, " his heirs and assigns," the rent will go to the heir male of the body of his father, though he be not heir to the lessor (jj). If a tenant for life, having a power, demise, rendering rent to himself, his heirs and assigns, "it shall be adjudged to him in remainder " (q). It appears that a simple reservation of rent to the lessor only, not mentioning his heirs, is good for the life of the lessor only (y) ; but that a reservation to the lessor or his heirs duri^ig the term is good for the whole of the term (.s). Where the words " during the term" are {l. per ton was a penalty and not liquidated damages, so that the manurial value onl}^ (from 15s. to 1/. per ton) of the hay sold was recoverable (c). Where a deposit is made to secure the due performance of a Forfeiture of written contract, and it is to he forfeited in case of any breach, such ^ ^^P*^"^ • forfeiture may be enforced, and is not considered as a penalt}^ ((7) ; or, instead thereof, the amount of damage actuall}^ sustained may be recovered {e). Where there is a reservation of 61. per acre during the last twenty Increased years of a term, for ever}' acre of meadow which the tenant shall TiTla^e plough, or convert into tillage during the said last twenty years of the term, and so after that rate for any greater or less quantity than (a) Ld. Elphinstoiic, app., Monkland, (c) HV^Zswt v. Zorc, [1896] 1 Q. B. 626 ; Iron, dr., Co., resps.. L. R., 11 App. Gas. 65 L. J., Q. B. 474 ; 74 L. T. 580 ; 44 332. The appeal was a Scotch one, hut W. K. 450 — C. A. there is no dittereuce hetween English and ((/) Hinton v. S'parkcs, L. R., 3 C. P. Scotch law on the point. 161 ; 37 L. J., C. 1'. 81. (ft) Kemhle v. Farrcn, supra, 420. (c) Icelcy v. Grcii; 6 X. & JI. 467. 422 Chap. X. — Rent. Ch. X. Sec. 3. FcnaU)/ or Liquidated Jjamagn. Increased Eent ill Puli- lican's Lease lor not taking Lessor's Beer. an acre, or less time than a year, it is considered that the rent is due in the last twenty years, if the land is then ploughed, whether it was first ploughed within the last twenty years, or before ; and the rent continues payable during the twenty ^-ears, though the land be again laid down to permanent grass (/). The right to additional rent for over tillage is not waived by the acceptance of the reserved rent with a knowledge of the breach (g). The provision inserted in a publican's lease of what is called a "tied house," that the lessee shall take all his beer from the lessor, or else j^ay an advanced rent, has been much censured by the courts ; and, at all events, such a covenant is subject to an implied condition, and cannot be enforced unless the lessee be supplied with good beer {li). Rent is due in the Morn- ing, must be demanded at Sunset, and is in Arrear after Midnight. Biqrpa v. Mayo. Time for Demand, in order to sup- port a Re- entry at Common Law. Death of Landlord on Rent-day. Chili's case. Sect. 4. — When Bent is due. The rules of the common law with resj)ect to the time when rent is due, and when it must be demanded, are very curious and precise. It seems that rent is due in the morning of the day appointed for l^ayment, but it is not i)i arrear until after midnight (/). Just before and at sunset is the time appointed by law to make a proper demand of it {k), to take advantage of a condition of re-entry ; the demand should be made such time before sunset as to allow sufficient light to count the mone}'' (Z) ; the person making the demand must remain on the land till the sun has set ; and the demand must be actually or constructively continued till that time (»?) . The court will not take judicial notice of the time of sunset on a particular day, that must be proved by evidence {n). A demand made on the proper day at one o'clock is clearly bad (o), although a tender b}' the tenant or his agent at any time before or after sunset would be sufficient to save the forfeiture {p). But these niceties are usually dispensed with by express words in the lease, as has been already (ante, p. 337) explained. AVhere a lessor, tenant in fee, died after sunset and before mid- night, it was held that the heir and not the executor was entitled to (/) Birch V. Ste2}he7ison, 3 Taunt. 469 ; 12 R. R. 679 ; Ifowell v. Hichards, 11 East, ,633; 11 R. R. 287; Bac. Abr. tit. Jicut (F.). ig) Denton v. Richmond, 1 C. & M. 734. (/() Cooper V. Twihill, 3 Camp. 286 ; 13 R. R. 803 ; Holcomhe v. Hcwson, 2 Camp. 391 ; 11 R. R. 746; Stand iffe, app., Clarke, resp., 7 Exch. 439 : 21 L. J., Ex. 129. (i) Dibble v. Bovmtrr, 2 E. & 1?. 564 ; CiUtiiuj V. Dcrbfj, 2 AV. Pdac. 1077. [k) Duppa V. Mayo, 1 Saund. 287 ; 2 Salk. 578 ; Cole Ejec. 413. (/) Co. Lit. 202 a: Mound's case, 7 Co. R. 28 b ; Tinckler v. Prentice, 4 Taunt. 549 ; 13 R. R. 684. {m) Wood and. Chiver^s case, 4 Leon. 179 ; Acocks v. Phillips, 5 H. & N. 183. (n) Collier v. Nokes, 2 C. & K. 1012. (o) Doe d. Wheeldon v. Paul, 3 C. & P. 613. {jy) Plow. 172 a; Co. Lit. 202 a ; Cropp V. Humberton, Cro. Eliz. 48. Sect. 4. — When Eent is due, 423 the rent (q) ; but pa^-ment to the lessor or his agent on the morning Ch. X. Sec 4. of the rent-day, the lessor dying before noon, is valid as against the ^''<^>' ^^"* «« heir, though not against the crown (r). "Where the rent was reserved '- payable on Michaelraas-day, and the lessor died on that day between three and four o'clock in the afternoon before sunset, and a question was raised whether the executor or the heir, or, which is the same, the jointress of the lessor, should have the rent, it was held that the rent should go to the heir or jointress (s). Payment before the day is voluntary and a payment of a sum in Payment of gross, and no satisfaction at law of the rent (t) ; but it seems it will Advance, be otherwise in equity, for payment of rent to the tenant in tail or for life, on or even before the day, where the tenant in tail lived to the rent-day (»)> will discharge the lessee, though if the tenant in tail die on the same da}', the remainderman is entitled to recover the rent so paid from his representatives. If a tenant make a payment in advance, and the landlord dies before the rent-day, the payment ma}' be pleaded by way of an equitable defence, to an action by the laud- lord's executors for the rent (x). But a payment of rent in advance is not within 4 Ann. c. 16, s. 10, so as to discharge the tenant from his obligation to pay rent to the assignee of the reversion, in case he received notice of the assignment before the rent is due (y). "Where rent is reserved generally, and no mention is made, as is At what Days usual, of half-yearly or quarterly payments, nothing is due until the j>gjjt ,3 ^jye end of the year (s) : and where, after signing a written agreement which made no mention of the time when the rent was to be paid, the landlord asked the tenant how he would like to pay the rent, and the tenant replied quarterly, and the rent was accordingly paid quarterly, it was held that the rent was still due annually, and not quarterly (a). Where there is a general reservation of a yearh' rent, a clause to put an end to the term, by notice expiring on any quarter day, will not make the rent payable quarterly (b). In a case where an agreement was dated the 21st January, and a person thereby agreed to become tenant, "at the customary time of entry," at a certain rent to be "paid at the usual time," "as agreed upon;" and he entered at ( q) Dicppa V. Mmjo, 2 Salk. 578 ;. 1 (a.-) See Kash v. Graj/, 2 F. & F. 391. Wms. Saund. 287 ; Chin's case, 10 Co. R. (?/) De Kicolls v. Saunders, L. K, 5 127b; Ld. RocUnrjha7n \. Penricc, 1 P. C. P. 58; 39 L. J., C. P. 297; 22 L. T. Wms. 177: 1 Salk. 578; 1 Swanst. 345, 661; 18 W. R. 1106; Cook v. Gucrra, note; F.e Cluloir, 3 Kay k J. 689; 26 L. R., 7 C. P. 132; 41 L. J., C. P. 89; L. J., Ch. 513. 26 L. T. 97 ; 20 W. R. 367. (r) Chin's case, 10 Co. R. 127 b. {z) Cole v. Sury, Latch. 264; Com. (s) Ld. Rockingham v. Penrice, 1 P. Dig. Rent {^.), 8; Gray y . Ghamherlain, Wms. 177 : 1 Salk. 578 ; 1 Swanst. 345, 4 C. & P. 260 ; Coomber v. Howard, 1 note : Bac. Abr. tit. Rent (H.). C. B. 440. {t) Chins co.se, 10 Co. K. 127b; Ld. («) Turner v. AUnay, Tyr. & G. 819. Cromwell w. Andrews, Cro. Eliz. 15. {b) Collctt v. Curling, 10 Q. B. 785; (u) Ld. Roel-ingliam v. Penricc, supra ; 5 D. & L. 605. Bac. Abr. tit. Rent (H.l. 424 Chap. X.— Eent. Ch. X. Sec. 4. Lady-day, the usual time of entry being the 12th of May, the usual JF/ien Eent is time of rent becoming payable, being once a year, at Michaelmas, — and the rent-day, when it was paid, being the 8tli January : it was held, that there was evidence that the rent was payable at Michael- mas, and that it was not necessarily payable at the end of the year, from the time of entry (c). When the rent is made payable on certain days in the .year, it is due on the first of the days occurring in point of time, without regard to the local order of the words (d). If rent is intended to be made payable in advance, such intention should be clearly expressed (e). A covenant that a half-j^ear's rent shall remain in the hands of the tenant till the last year, means the " current half-year " (/). Where rent was 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 (g). Sect. 5. — Payment of Rent. Rent a Debt Hent is considered as of a higher nature than even a debt due on Nature ^^ instrument under seal, as between the parties themselves. In the case of the death of the tenant, it was, prior to the act 32 I'v: 33 Vict. c. 46, of equal degree with specialty debts, so as, in tlie distribution of the deceased's estate, to be payable with debts of that degree (/i) ; but now, by virtue of that statute, all the creditors of a deceased person are treated as standing in equal degree. Rent in arrear is no part of the reversion ; and therefore when rent becomes due after delivery to the sherifi" of a writ of elegit against the lessor, but before inquisition taken thereon, it is not payable to the execution creditor (i). Attachment Bent due and owing to a judgment debtor may be ordered by a of Kent. divisional court, a judge, or a master, to be attached in the hands of his tenant, as a debt, under the Rules of the Supreme Court (Order XLV., Rule 2) (A). But accruing rent not due cannot be so attached (0- Rent which is overdue cannot be attached under a foreign attachment in London (?«)• Payments by A payment of rent, b}- mistake or misrepresentation, to a person wroncr Person, iiot entitled to demand it, does not preclude the tenant from showing that the person to whom it was i^aid was not entitled to it (»)> but the (c) Gorcv. Lloyd, 12 M. & W. 463. Common Law Procedure Act, 1854, from Id) Hill V. Grange, Plowd. 171. wliieli Order XLV., Rule 2, diHers only in {e) Ante, Sect. 1. enlarging the discretion of the court. (/) V. Mcholls, Lotrt. 393. (/) Jones v. Thompson, 27 L. J., Q. V,. {(f) Mallain v. Arden, 10 Bing. 299. 234 ; and see for the general principle, (h) Thompson v. lliompson, 9 Price, 471. Tapp v. Jone.s, L. R., 10 Q. B. 591. {i) Sharp v. Kci/, 8 M. & W. 379 ; {7n) Com. Dig. Attachment (D.), cited 9 Dowl. 770. ^ 8 B. & S. 95. (k) .Mitchell V. Lcc, 8 B. & S. 92 ; L. R., {n) Rogers v. Pitcher, 6 Taunt. 202. 2 Q. B. 259 ; decided on s. 62 of the Sect. 5. — Payment of Rent. 425 onus of proof is shifted. Therefore, if A., who is a tenant for life Ch. X. Sec. 5. subject to forfeiture, with remainder over to B., lease to C. for a Fayment of term, and afterwards, apprehending that he has forfeited, acquiesce '- in B.'s claiming and receiving the rent from C. ; his executor may, on showing that he acquiesced under a false apprehension, recover from C. the amount of the rent erroneously paid to B. (o). Where an old corporation, before the Municipal Reform Act, were trustees of a charity, and a tenant of the charity paid rent after the new corpora- tion came into office to the secretary of the old corporation, who still continued as charity trustees, it was held that this was a good pay- ment as against the new corj)oration {p). An allowance b}' wa}' of deduction from the rent, even though Allowances . bv mistake ot made by mistake, operates as payment oi the rent, pro tanto : thus Deductions where a tenant paid rent regularly to the landlord's agent, deducting *^'°"^ ^'^"^• a sewers rate, which by the terms of the agreement under which the tenant held he ought himself to have paid, it was held, that, in an action to recover the sums so deducted as arrears of rent, a plea of payment was supported by the facts (g). Rent reserved, payable yearly, or otherwise, is to be paid on the Rent is pay- land, because the land is the debtor, and that is the place of demand Land except appointed by law : so if a man lease, rendering rent, and the lessee i" ^'^^^ ^'"^^^ °f 1.,,.,^. t. 1-1 ^ ^ Covenant. bmds himselt in a sum to periorm the covenants, this does not alter „ , , ■*■ _ ' Haldane v. the place of payment of the rent, for it may be tendered on the land Johnson. without seeking the obligee, except where the condition is for the performance of homage or other corporeal service to the person of the lord(7'). This, however, which is a rule of the common law, applies only to re-entry for non-payment of rent, and not to an action on the covenant to pa}^ it. Such a covenant (if no particular place of payment be mentioned) is analogous to a covenant to pay a sum of money in gross on a day certain, in which case it is incum- bent on the covenantor to seek out the person to be paid, and pay or tender him the money, for the simple reason that he has con- tracted so to do. So it was held in the considered case of Haldane V. Johnson (s), where the authorities for this somewhat harsh doctrine (which applies, if only the landlord be intra quatuor maria) will be found carefulh' examined. The lessee of the crown must pay his rent, without demand, at Lessee of the Exchequer, wherever it may be ; but if the crown grant the {o) JVilliamsv. Bartholomew,! Bos. kV. (r) Co. Lit. 201 b; liozve v. Young, 2 326 ; 4 R. R. 81 ; Gregory v. Doidije, Brod. & B. 234 ; 2 Bligli, 391 ; 21 R. R. 3 Binf^. 474; Claridgc v. Mackenzie, 4 91 ; Shep. Touch. 378 ; Cro?(t7i v. i-^a/stoZ/c, M. k G. 143. Sir T. Rayni. 418 ; Com. Dig. Pleader, ip) Mayor, cOc, of Ludlow v. Charlton, (2 W. 49). 9 C. & P. 242. (s) Haldane v. Johnson, 8 Exch. 689 ; iq) JVallcr v. Andrews, 3 M. & W. 17 Jur. 937 ; 22 L. J., Ex. 264. 312; Bramstonv. Ilobitis, 4 Bing. 11. 426 Chap. X. — Eext. Ch. X. Sec. 5. reversion, the rent must be demanded on the land before the grantee Payment of ^.^-^-^ enter as for a forfeiture on non-ijavment (O- Rent , . '- Like an}^ other species of debt, rent is often paid by a remittance Re!!t throucrh^ by the post. But remitting tln-ough the post is departing from the Post. mode of i)ayment marked out by law, and in the absence of a recog- nition by the landlord of the use of the post, the loss by post would fall on the tenant. It has been held that if a tenant be directed by his landlord to remit money by the post, and it be lost, the latter must bear the loss (?t) ; but even in this case, it is said, the tenant must show due caution {x), such as, in the present day, using a regis- tered letter. It is probable that slight evidence of an implied recog- nition by the landlord of the use of the post would be held sufficient ; but in every case it would be desirable to obtain an express recog- nition by the landlord, once for all, of the mode of payment. Where a creditor in the country directed his debtor to pay money into a London banking-house to his account, and had no account with the house but through a country banker ; it was held, that a payment there to the credit of his account with the country banker was a discharge to the debtor {\j). Generally, a creditor may insist upon payment being made either to himself or his agent ; but having authorized payment to his agent, he cannot revoke that authority, if the debtor have given such a pledge to pay pursuant to the authority as would bind him in a court of law {z). Payment by If the landlord take a security for rent in arrear — as if he take a bond, bill of exchange, or promissory note — his so doing will not of itself amount to a payment of the rent, nor bar him of his remedies peculiar to the recovery of rent. So it was held in Davis v. Gt/dc (a), it having been previously ruled at nisi prius, that where the tenant gave a note of hand for rent in arrear, and took a receipt, he could not sue the landlord in trespass for a distress, but that, notwith- standing the note, the landlord might distrain, as the note was no alteration of the debt till payment (/>). In another case, a tenant being indebted for rent, his landlord's agent received from the tenant a bill of exchange for the amount, which he indorsed over, and paid the rent to the landlord, crediting it in his accounts as if the tenant had paid the money. The landlord having distrained for rent, it was held to be a question for the jury whether the transaction amounted to a discount of the' bill by the agent for the tenant, or a jnere advance of rent by the agent to the landlord, in Avliich latter (0 Bac. Abr. tit. Bent (I.). (a) Davis v. Oyde, 2 A. k E. 624, on (u) Warwick v. Noakcs, Peake, 67 ; demurrer. 3 R. R. 653. (/') Harris v. Shipicay and Ever v. (A') Hawkim v. E>itt, Peake, 186. Laihi Clifton, Bull. N. P. 182 ; Seven v. ly) Breed v. Green, Holt, 204. Mihil, 1 Ld. Ken. 370. {z) Hodgson v. Anderson, 3 15. k C. 842. Bills or Notes. Davis V. Gyclc^ Sect. 5.^ — Payment of Eent. 427 case he was entitled to distrain (c). Where to covenant for rent Ch. X. Sf.c. 5. against three defendants, it was pleaded that 41/. of the rent was PfU'^ent of paid; that of the residue two of the defendants had paid their shares, "■= and that the other had given the plaintiif a promissory note for his share jDayable at a banker's ; that such note was dishonoured, where- upon the plaintiff sued him and had judgment by default on the note, which judgment was still unsatisfied ; it was held, that the judgment was no merger, being obtained on a collateral security, and not having produced actual satisfaction {d). In Davis v. Gyde, however, which was decided on demurrer, more than one member of the court pointed out that a special agreement, made at the time of the note, for suspending the distress, might have suspended the right to distrain, and in Palmer v. Bramlei/ (e) it was jDointed out that Davis v. Gyde is no authority that the giving of a bill is no evidence of an agreement to suspend the landlord's right of distress, no such agreement having been averred in the pleadings in that case ; and it was expressly held that the fact of a landlord taking a bill of exchange from his tenant for rent due is some evidence of an agreement by the landlord to suspend his remed}^ by distress during the currency of the bill. Davis v. Gyde seems to bear very hardly on the tenant, and, although it is not likely to be overruled, it is submitted that it is incorrect, on the ground that the acceptance of a negotiable securit}' constitutes an implied suspension of the right to distrain, and that the substitution of the simple remedy upon a note for the more cumbrous remedy otherwise open to the landlord is a good legal consideration. A similar remark will apply to Skerry V. Preston (/), in which it was held that an agreement to take interest did not postpone the right of distress. Receipts for rent require to be stamped with a penny stamp, Stamp-Juty which, if adhesive, as it generally is, must be cancelled by the person ^"j. j^^-^l^^ " giving the receipt before he delivers it out of his hands, if the sum received amounts to 2/. or upwards. The fine for giving a receipt liable to duty and not duly stamped, or refusing " in any case where a receipt would be liable to duty," to give a receipt duly stamped, is lOL recoverable by information in the High Court, in the name of the Attorney-General (f/). Where a landlord fraudulently reduced various sums of money Fraudulent payable by his tenants, and the evidence of payments by them con- sisted of memoranda of accounts delivered to the tenants in which (c) Parrott v. Anderson, 7 Exch. 93; 14 R. <392— C. A. Griffiths V. Ohichester, Id. 95. (/") Skerry v. Preston, 2 Chit. R. 245. (d) Drake v. Mitchell, 3 East, 251 ; Of) Stamp Act. 1891, 54 & 55 Vict. 7 R. R. 449. c. .39, ss. 101 — 103, 121, and Schedule, tit. (c) BraniUy v. Palmer, [1805] 2 Q. B. Ero:i2)f. 405 : 65 L. J., Q. B. 42 ; 73 L. T. 329 ; Reduction of Rents. 428 Chap. X. — Rent. Ch. X. Sec. 5. Paijmeut of Rent. Receipt and Stamp— coiitd. When Tay- ment of Ground-rent operates as payment pro tanto of the Rent. Payment of Ta.\es, Rates, kc. AVlien other Payments may be deducted from the Rent. the items in question were set down, and to each of which tlie land- lord wrote the word "paid;" it was held, that such memoranda were admissible in evidence without a stamp, when coupled with entries in the steward's books to the same effect {h). A paper signed b}^ the lessor in this form — " Mr. J. (the lessee) having Avritten off the sum of 111. from his mortgage debt, being five quarters' rent of his house, I hereby discharge the same rent to the 24th da}' of Juh' last " — requires a receipt stamp (i). A paper in form of a receipt, if it is not given in evidence as a receipt, does not require a stamp (A) ; and an unstamped receipt may be used by a witness who can prove the fact, independentl}', to refresh his memory (I). A payment of ground-rent by the tenant, in default of payment by his mesne landlord, may operate as payment pro tanto of the rent claimed by the latter (m) ; and growing rent may be discharged by such payments as well as rent actually due («). Such pay- ments are not the less compulsor}' because the ground landlord, on demanding the ground-rent, allows the occupier time to pay (n). Where a stranger received rent due to the testator in his lifetime, and afterwards, b}' desire of the tenant in possession, paid the demand of ground-rent due at the same time for the said premises ; it was held, that he might deduct such pa3'ment in an action by the executor for the rent, but not a payment of ground-rent arising after the death of the testator (o). A payment of propertj'-tax operates as a payment pro tanto of the rent, notwithstanding any stipulation in the lease to the con- trary ip). So a payment of land-tax, sewers-rate, rent-charge in lieu of tithes, and other charges of the like nature, may, in the absence of any express stipulation for their payment by the tenant, operate as a payment pro tanto of the rent, and be deducted accordingly on the next payment of rent {q). It has been said that wherever a tenant may be ousted from his occupation on default made of a payment by his landlord, he may pay in his discharge and for the redemption of the premises, and deduct such payment from his rent (r). Such payments, in event of the tenant being sued for the whole rent, would seem to fall within the scope of the Eules of the Supreme Court, 1883 (Order XIX. Rule 3), by which "a defendant in an action may set off or set up by way of counter-claim against the claims of the plaintiff, any right (A) Clarke v. Hougham, 3 D. & R. 325. (i) Lncas v. Jones, 5 Q. 13. 949. (k) Brookes v. Bavies, 2 C. & P. 186 ; Mathcwn v. Ross, 2 H. L. Cas. 286. (/) liambcrt v. Cohen, 4 Esp. 213 ; 6 R. R. 854. {m) Doe V. Hare, 2 C. & M. 1 45. (?i) Carter v. Carter, 6 Binj^. 406 ; Sapsford v. Fletcher, 4 T. R. 511. (o) JFilkinson v. Caicood, 3 Anst. 905. (p) Post, Chap. XV. iq) Post, Chap. XV. (;•) i>mith V. Pcarce, MS., sittings at Ouihlhall, after M. T. 43 Geo. 3, Lord EUenborough, C..T. Sect. 5. — Payment of Eent. 429 or claim, whether such set-ofF or counter-claim sound in damages or Ch. X. Sec. 5. not, and such set-oft" or counter-claim shall have the same effect as Payment of a cross action." Even before the Judicature Acts, it Avas held that in an action for rent the tenant might avail himself of a part pay- Counter- ment obtained from him under a distress or a judgment of the claim. County Court for the same rent (s), and that where a landlord was bound to repair, and the tenant was obliged b}' sudden accident to make repairs, in order to prevent further mischief, the tenant might set off the money laid out in repairs if). It was, however, held that there could be no set-off where the tenant paid as rent a sum to prevent a person ejecting him from a portion of the land to which he claimed title from the lessor prior to the lease {u). Sect. 6. — Proof for Rent against Liquidators of Company. Distress for rent upon premises demised to a compan}- in liquida- tion is dealt with hereafter (Chap. XI., Sect. 7). The landlord of a limited company being wound up or applying for leave to reduce its capital has been more than once held entitled to enter a claim for rent and royalties which may become due to him in future, and to an injunction to restrain the company from dis- tributing its assets and dissolving without making proper provision for his payment (t-). That these decisions require re-consideration since Hardi/ y. Fothe7'gill(a.nte , p. 271) was intimated by the Court of Appeal in Midland Coal, Coke and Iron Co., In re, Craig's Claim {x), where it was held that a lessee raising such a claim was bound b}' a scheme under the Joint Stock Companies Arrangement Act, 1870. And although it has been pointed out that the rule of Hardy v. Fotliergill does not aj^ply to a subsisting lease to a compan}', and lessors refusing to accept a surrender and prove for loss can enter a claim for the whole of a future rent (y), and have the assets of the company impounded to meet such claim (z), but not its dividends to creditors (a) ; still in a case where a lessor is desirous of proving at once for his loss on the footing of the lease being determined or treated as determined, it is the duty of the court to assist him in proving. Great injustice would ensue if a liquidator were at liberty (s) Harmer v. Bean, .3 C. & K. -307. {x) Midland Coal, Coke and Iron Co., In (t) Waters V. Weirjall, 2 An.st. 575. re, Craig's Claim, [1895] 1 Cb. 267 ; 64 {u) Boodle V. Cambell, 7 M. & G. 386 ; L. J. Ch. 279 ; 71 L. T. 705 ; 48 W. R. 2 D. & L. 66. 680 ; 12 R. 62 ; 2 Manson, 75— C. A. (r) Telcr/raph Construction Co., In re, (y) New Oriental Bank Corporation L. R., 10 Eq. 384 ; Oppcnhcimerv. British, (No. 2), [1895] 1 Ch. 753, per Yaughan tCr., Bank, L. R., 6 Ch. D. 744; Gooch v. AVilliams, J. London Banking Association, 32 Cli. D. {z) Haytor Granite Co., In re, L. R., 1 41 ; Elphinstone v. Monkland, d-c, Co., 11 Ch. 77. App. Cas. 332; all cited in the judgment in {a) Horset/s Claim, L. R., 5 Eq. 361. Craig's Claim, [1895] 1 Ch. at i^. 276— C. A. 430 Ghap. X. — Eent. Ch. X. Sec. 6, to refuse to allow any proof except for rent actual!}' accrued due ; Proof for Rent fQj. j^g mio'lit api)ly all the assets in paving other creditors large against & i i J i .. t> to Zif/uidators of dividends and leave the lessor with a mere claim for his future rent Comprmij. ^^^^ -^^ ^i^g position of there being no assets available for payment of any part of the rent as and when it accrued due and became available Qj). Apportion- ment by Act of Law. ]')>• Alinnation of the Lessor. By Alienation of the Lessee. By a Surren- der. Eviction of Lessee. Sect. 7. — Apjwrtionmcnt of Rent. (a) Apportionment in respect of Estate. Apportionment of rent in respect of estate takes place b}' act of law where lands demised at an entire rent become divided among different persons ; thus, if freehold and leasehold j^remises are let together at one rent, an apportionment takes place, at the death of the lessor, among the real and personal representatives. Apportionment at common law may also be by act of the parties : thus, if the lessor dispose of the reversion in part of the lands, either by deed or will, the rent is apportionable (c) ; but the lessee's con- currence to the apijortionment is necessary, unless it be settled by a jmy (fZ). When the lessee aliens part of the land, the alienee is liable for a proportional part of the rent if the landlord choose to proceed against him(e). Although the landlord has received rent from the assignee, the personal contract of the lessee still subsists, and renders him liable for the whole arrears in an action of cove- nant (/). When the lessee surrenders part of the land to the lessor, the rent for the remainder is apportioned. It would seem that the rent should be apportioned, not according to the quantity, but according to the value of each part as improved by buildings, kc. (g). Where the lessee is evicted from part of the lands by title para- mount, he will have to pay a rateable proportion for the remainder (li) ; but if he be evicted from part of the lands hy his landlord (or his assigns), no apportionment, but a suspension of the whole rent, takes place (0- There is no suspension, however, if the eviction has followed upon some wrongful act of the lessee, such as a forfeiture or recover^' of part of the lands in an action of waste (A). {h) ranther Lead Co., In re, [1896] 1 Ch. 978, per Ronier, J. (f) West V. LasccUes, Cro. Eliz. 851 ; Collins and Harding's case, 13 Co. 1{. 57 a ; Cro. Eliz. 609, 622. {d) Bliss V. Collins, 5 B. & A. 876. (e) Stevenson v. Lambard, 2 East, 575 ; 6 K. R. 511. (/) Bachelour and Gage's case, Cro. Car. 188 ; Ipswich [Bailiff) v. Martin, I Roll. Abr. 235, ]il. 17 ; Omill v. Kemsliead, 4 Taunt. 642; 13 K. R."^712. {(J) Smith V. Malings, Cro. Jac. 160 ; Anon., Moor, 114. (h) Gilb. Rents, 147 ; Smith v. Malinqs, Cro. Jac. 160 ; 1 Roll. Abr. 235 ; Steven- son V. Lambard, 2 East, 575 ; 6 R. E. 511 ; Boodle V. Cambcll, 7 M. & G. 386 ; 2 D. & L. 66 ; McLoiiyhlin v. Craig, 7 Ir. Com. L. R. 117. (i) Smith L. & T. 287 (2nd ed.) : l.nt the tenant must perform all liis covenants as to repair, (fee. ?>ev:ton v. Allin, 1 Q. P>. 517 ; Morrison v. Chadvick, 7 C. B. 283. {1} Walker's case, 3 Co. R. 22 ; 1 Roll. Rep. 331 ; Jloor, 203. Sect. 7.— Apportionment of Kent (in iiespect of Estate). 431 Where a person demised, fit one entire rent, lands of which he was seised in fee, and lands of which he was tenant for life with power of leasing ; and the lease was void as to the latter lands for want of conformity to the power ; the court held, that thouoli the lease as to lands comprised in the power was void, the rent might be apportioned for the remainder (/). Similarly, where a lessor pro- fesses to grant an exclusive right of sporting, and it turns out that he has no such privilege, an apportionment of rent will be made on that account (m). In Neale v. Mackenzie, a lessee of 100 acres of land accepted the lease (which was not under seal) and entered upon the land ; upon his entry he found eight acres in the possession of a person entitled under a prior lease from the lessor, and that person kept possession of the eight acres until half-a-year's rent became due, the lessee continuing in possession of the remainder ; the prior lease w^as for a term extending beyond the duration of the latter lease : it was held, that the latter demise was wholly void as to the eight acres, and that the rent was not appprtionable, the impediment to the lessee taking possession not beiiig analogous to an eviction bj' title paramount (n). But Avliere the second demise was under seal, it was held to operate as a grant of the reversion as to the part pre- viously demised (o). Where the tenant cannot obtain possession of all tlie premises demised, an action of covenant hy the lessor against the lessee for the rent cannot be maintained, as in such action the rent cannot be apportioned {p). Where lands and goods are let at an entire rent, and the tenant is evicted from the lands, no apportionment can be made for the goods as the rent is held to issue from the land alone {q). Although the rent of furnished lodgings issues out of the realty onl}" (?•) : 3'et wdiere the mortgagor of a house let it furnished, and the tenant, after notice, paid the whole rent to the mortgagee, it was held, that the mortgagor might still recover for the use of the furniture (s). Where A. demised to B. certain mines for thirty years, with licence to use an adjoining railway in common with A., and during the term A. prevented B. from using the railway, it was held, that this created no suspension of the rent, because the rent issued out of the thing demised, i.e., the mines and minerals, and not out of the easement to use the railway {t). (q) Ernot V. Cole, Dyer, 212 b, in marg. ; Collins V. Harding, Cio. Eliz. 606 ; 13 Co. R. 57 ; Moor, 544; Cudoganv. Kennctt, Covvp. 432 ; Gilb. Rents, 175. (r) Nciuman v. Andcrton, 2 Bos. & P. New R. 224. (s) Salmon v. Matthcics, S JI. & AV. {I) Doc d. Fauc/hanv. Mcylcr, 2 M. & S. 276 ; 15 R. R. 244. (//() Tornlinson v. Day, 2 Brod. & B. 680. (n) NcaU v. 31ackcnzic (in error), 1 M. & W. 747. (o) Ecc. Commrs. of Ireland v. O'Connor, 9 Ir. Com L. R. 242. (p) Holgutc V. Kay, 1 C. & K. 341 ; but see Ecc. Commrs. of Ireland v. O'Conrujr, supra. Ch. X. Sec. 7. Apportion- ment of Rent {in respect of Esi(de). Demise of more than Lessor en- titled to. Neale v. Mackenzie. Wlien Realty and Person- alty are let together. [t) IFilliams V. Hayward, 1 E. & E. 1040 ; 28 L. J., Q. B. 374. 432 Chap. X. — Eent. Ch. X. Sec. 7. Apportion- ment {in respect of Estate). AVliere Land lost b)' overflowing of Sea. Apportion- ment under Lands Clauses Act. By justices. Covenants. Ajiportion- nient under other Statutes. The loss of land to the lessee by the overflowing of the sea appears to be another case in which the tenant may claim apportionment : but the loss must be total pro tanto, for if there be merely a partial irruption of water, the exclusive right of fishing, which the lessee would thereupon have, would be such a perception of the profits of the land as to annul his claim (»)• Where part of land on lease is taken for a railway or other public purposes, under the Lands Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 18), the 119th section of that act provides that — If any lands shall be comprised in a lease for a term of years unexpired, part only of Avhich lands shall be required for tbe purposes of the special act, the rent payable in respect of the lands comprised in such lease shall be apportioned between the lands so required and the residue of such lands: and such apportionment may be settled by agreement between the lessor and lessee of sucli lands on the one part, and the promoters of the undertaking on the other part, and if such apportionment be not so settled by agreement between the parties, such apportionment shall be settled by two justices ; and after such apportionment the lessee of such lands shall, as to all future accruing rent, be liable only to so much of the rent as shall be so apportioned in respect of the lands not required for the purposes of the special act ; and, as to the lands not so required, and as against the lessee, the lessor shall have all the same rights and remedies for the recovery of such portion of rent as previously to such apportionment he had for the recovery of the whole rent reserved by such lease, and all the covenants, conditions, and agreements of such lease, except as to the amount of rent to be paid, shall remain in force with regard to that part of the land which shall not be required for the purposes of the special act, in the same manner as they would have done in case such part only of the land had been included in the lease. Where j^ai't onl}' of lands comprised in a lease for an unexpired term is conveyed, or agreed to be conveyed, for sites for schools for the education of the poor under the School Sites Act, 1841, 4 & 5 Vict. c. 38, the rent and the fine upon renewal ma}', by the School Sites Act, 1849, 12 & 13 Vict. c. 49, s. 1, be apportioned between the parties interested. By the Church Building Act, 1854, 17 & 18 Vict, c. 32, where parts of lands in lease are taken for the purposes of the Church Building Acts, rents and fines on leases and renewals may be apportioned. Under the Inclosure Act, 1854, 17 & 18 Vict. c. 97, for amending and extending the acts for the inclosure, exchange and improvement of land, rents and other certain payments may be apportioned. By 17 ^ 18 Vict. c. 116, to facilitate the manage- ment and improvement of episcopal and capitular estates in England, on the sale or exchange of part of lands comprised in any lease or copy of court roll, the rent must be apportioned. («) 1 Roll. Abr. 236, 1. 40. Sect. 7. — Apportionment o^ Rent (in respect of Time). 433 (b) Apportionment in respect of Th)ie. Ch. X. Sec. 7. , . 11,1 / • 1 • ,> • Apportioti- At common law rent could not be apportioned m respect oi time, nunt of Rent ■and therefore when a tenant for life granted a lease for years, and ^''^ tl'.'^'f'^ '^f » ■' ' Tunc). ), and it was said {i) Tliis proviso substantially follows 42 L. J., Ch. 3.34, per Lord Selborne, C. tlie corresponding proviso of 4 & 5 "Will. 4, (o) Cap-on v. Capron, L. R., 17 Eq. c. 22. s. 2. 288 ; 43 L. J., Ch. 677 ; 29 L. T. 826 ; (;!•)' The words "it is" are new; other- Re Cline's Estate, L. R., 18 Eq. 213; 30 wise the section corresponds with 4 & 5 L. T. 249, per Malins, V.-C. ; Hashick y. Will. 4, c. 22, s. 3. PccUcy, L. R., 19 E<\. 271 ; 44 L. J., Ch. (?) Hasluck V. Pedley, L. R., 19 Eq. 143; 23 W. R. 155, per Jessel, M.R. ; 271 ; 44 L. J., Ch. 143 ; 23 W. R,. 155. Constable v. Constable, L. R., 11 Ch. D. {la) Sicaiisea Bank v, Thomas, 4 Ex. D. 681 ; Iloscinr/rave v. Burke, 1 Ir. R. Eq. 94 ; 48 L. J., Ex. 344 ; 40 L. T. 558 ; 27 186. W. R. 491. {p) See Slack v. ShariK, 8 A. & E. 366 ; {n) In Jones v. Ogle, L. R., 8 Ch. 192 ; Grimman v. Lecjcje, 8 B. & C. 324. 28—2 436 Chap. X. — Eent. Ch. X. Sec. 7. not to be recoverable under s. 2 of the Apportionment Act, 1834 (q)^ Apportion- g^^^ the Act of 1870, in sect. 3, speaks of a rent " determined by {in respect of re-entry," which seems intended to apply to a forfeiture, and the Time). Direction by Testator to ibrgiveArrears of Rent, case is clearly within tiie words of sect. 2. And although it might be argued that it is not within the purview of the act generally (r), this argument appears to be disposed of by Swansea Bank v. Thomas (s), in which case the trustee in liquidation of the lessee, having assigned over during a current quarter, was held liable under the act to pay to the lessor a proportionate part of the quarter's rent up to the time of the assignment over ; by Re South Kens'tugtmi Stores {t), in which case the landlord of a liquidating company, whose business was carried on by the liquidator, was allowed proof for part of a quarter's rent up to date of petition, and distress for the remainder; and by Hastbigs (Lord), ex parte, Wilson, in re {n) in which Swansea Bank v. Thomas was followed as an established authority. Where a testator directed his executors "to forgive to his tenant all rent or arrears of rent due at the time of his decease," and rent was due at ]\Iichaelmas and the testator died in February, it was held that an apportioned part between Michaelmas and February could not be forgiven ; but this was not upon any construction of the Apportionment Act, but upon the interpretation of the intention of the testator (.r). After assign- ing the Pre- mises. After quitting Possession. Sect. 8, — Continuance of Lessee's Liahility. The lessee has both a privity of contract and of estate ; and though he assign, and thereb}^ destro}' the pi-ivity of estate, the jjrivity of contract continues, and he is liable, in an action of covenant, for the rent, notwithstanding the assignment (?/). A tenant remains liable for rent, unless he deliver up complete possession of the premises, or the landlord accept of another in his room {z). V>\\i where a lessee quitted, in the middle of his term, apartments which he had taken for a year, and the lessor let them to another tenant, it was held, that she could not recover in an action for use and occupation against the lessee for a subse- quent portion of the year, during which the apartments had been ((/) Ohlershaw v. Holt, 12 A. & E. .590. ■ (r) See the doubts of liowen, L.J., in Luca^, In re, bf> L. J., Ch. 101. {s) Swansea Bank v. 2'hotnas, 4 Ex. D. 94. See a form providing for payment pro rata in case of re-entry, L)av. Prec. vol. 5, pt. 1, p. 109, and note ; post, Appendix B.. Sect. 12. (<) Smith Kcnsinqton Stores, In re, 17 Ch. D. 161 ; 44 L. T. 471. (h) Hastbujs {Lord), E.r, jMrte, Wilson, In re, 62 L. J., Q. B. 628 ; f> R. 455 ; 10 M. V,. R. 219, per Vauglian Williams, J. {x) Luceis, In re, Parish v. Hudson, 55 L. J., Ch. 101 ; 54 L. T. 30— C. A. ; diss. Fry, L.J. (ij) Eaton V. Jacques, 2 Doug. 455 ; Auriol V. Mills, 4 T. R. 94 ; 2 R. R. 341. (c) Harding v. Crethorne, 1 Esp. 57 ; 5 H. K. 719 ; Ibbsv. Richardmn, 9 A. & E. 849 ; and see Henderson v. Squire, L. R. 4 Q. B. 170 ; and Cliap. XX., post. Sect. 8. — Continuance of Lessee's Liability. 437 unoccupied (a) : though if a tenant abandon premises without Cn. X. Sec 8. notice, the landlord may recover subsequent rent, notwithstandinp; Conthumnceof 1 -11 • * 1 -1 T 1 • T Liahilitij pr he has put up a bill m the window, and otherwise endeavoured to Rent. obtain another tenant (/>). Where a tenant from j^ear to year, at a rent payable half-yearl}', witliout giving any notice to the landlord, quitted the premises at the expiration of the current year ; and before the next half-year expired the landlord let the premises to another tenant, who occupied the same ; it was held, that the land- lord was not entitled to recover rent from the first tenant from the expiration of the current year, when he quitted the premises, to the time when the landlord re-let the same to the second tenant (c). If the landlord of lodgings enter into and use the apartments whilst the tenant is in possession, he is deprived of his right to rent ; but if the tenant have abandoned the possession during his tenancy, the landlord's lighting fires in the rooms, or even using the rooms, will not deprive him of his right to rent {d) , Where the landlord forcibly turned out a man left in possession by the tenant, and who was personally offensive to the landlord, it was left tothe jury to sa}' whether such expulsion was a mere personal trespass, or done for the purpose of turning the tenant out of possession (c). Where, during a current quarter, some dispute arose between the lessor and lessee of a first and second floor of a house demised for a year, at a rent payable quarterly ; and the lessee having told the lessor that she would quit immediately, the latter answered that she might go when she pleased ; upon which the lessee did quit, and the lessor accepted possession of the apartments ; it was held, that he could neither recover the rent which by virtue of the original contract would have become due at the expiration of the current quarter, nor rent pro rata for the actual occupation of the premises for any period short of the quarter (/). Where the lessee covenants to pay rent at stated periods (without where the any exception in case of fire), he is bound to pay it, though the Jg^^^^.^g'/^.j. house be burnt down ; for the land remains, and he might have Fhe. " -provided to the contrary by express stipulation, if both parties had Bdfonr v. " i , . 1 1 1 T 1 - J. Weston. SO intended. And this rule applies, although the lessee s covenant to rejKiir contain an exception ((/) in case of fire (//). A\ here premises were destroyed by fire during a tenancy under a written (ft) JFalls V. Akhcson. 3 Biug. 462 ; 2 419. As to the coii.structiou of the excep- C. & P. 268. tion in rekition to rent, see Bcanct v. Ire- ' {b) ilediKith V. Itoherts, 3 lisp. 225. land, E., B. & E. 326 ; 28 L. J., Q. B. 48. (c) Hall V. Burgess, 5 V>. k C. 332. (/t) Monk v. Cooper, 2 Stra. 763 ; 1 Ld. {d) Griffith v. Hodges, 1 C. & P. 419. Raym. 1477 ; Belfonr v. U'cdon, 1 T. R. (c) Hendersonv. Hears, 1 F. & F. 636. 310 ; 1 R. R. 210. And see U eujall v. (/) Grimman v. Lcgyc, 8 B. & C. 324. Waters, 6 T. R. 488 ; Hare v. Groves, 3 {g) This exception has been held not Anst. 687, and tiie cases intra, "usual." ,S7ta?7J v. Milliyan, 23 Beav. 438 Chap. X. — Eent. Ch. X. Sec. 8. Continuance of Liability for Rent. Expenditure of Insurance Monej' on rebuilding. After Eviction by Lessor, Rent is sus- pended. agreement, and rendered no longer habitable, the landlord was held to be still entitled to recover rent, accruing due after the fire, in an action for use and occupation (?). So also a tenant from year to 3'ear of a second floor, under a parol agreement, has been held liable in the same form of action (/.;) : and where the rent for similar lodgings was payable quarterly, he was held liable for rent up to the time of the fire at least (/). The tenant in such latter case, to get rid of his liability, should give a regular notice to quit. The reason is, that when i\ie law creates a duty, and the party is dis- abled to perform it without any default in him, and he has no remedy over, the law will excuse him : but when the party, hij Jiis oicn contract, creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident by inevitable neces- sit}', because he might have provided against it when making the contract. In some old cases the Court of Chancer}' relieved the lessee, and granted an injunction to restrain the landlord from bringing an action on the covenant for rent {ni) ; but the modern practice was clearly otherwise {n), so that no equitable defence could be raised by virtue of the Judicature Act. It has even been held that a tenant who has covenanted to rebuild, has no equity to compel his landlord to expend mone}' received by the landlord from an insurance office, on the demised premises being burnt down(()). But it is submitted that the Act 14 Geo. 3, c. 78, s. 83, which requires the governors of an insurance office, " upon the re(iuest of any person interested " {p), to cause insurance money to be laid out towards rebuilding, may be taken advantage of by tenants as well as by landlords. It is, however, always desirable to provide for the case of fire by special covenants, and this is frequentl}' done {q). B}' an entry of the lessor, or any one claiming through him, into any part of the demised premises to take possession thereof, the rent is suspended (;•) : and therefore, as to subsequently (s) accruing rent the eviction Avill be a bar; but if the lessor enter by virtue of a power reserved, or even as a mere trespasser, if the lessee be not evicted, it will be no suspension of the rent (0- Where the lessor caused two messuages, let separately, which had been destroyed by fire during the term, to be rebuilt in such a manner as to destroy their identity; it was held that such alterations in the subject-matter of the demises (i) Baker v. HoUpzaffcll, 4 Taunt. 45 ; 13 R. K. 55(J. (A-) Izon V. Gorton, 5 Bing. N. C. 501. (I) Packer V. Gibbons, 1 q. B. 421. (y/i) Brown v. Quilter, Ainb. 919 ; 2 Eden, 210 ; Canidcn v. Morton, Id. 219 ; cited 18 Ves. 118. [n) Holtzapffel \ . Baker, 18 Yes. 115. (o) Leeds V. Ohcetham, 1 Sim. 146 ; fol- lowed with approval in Lojf't v. Dennis, 1 E. &E. 474; 28 L. J.. Q. B. 168. (p) Tost, Chap. XVII. ((]} Infra, Sect. 9. (r) Morrison v. Cliadwick, 7 C. B. 266 ; 6 D. & L. 567. (s) Boodle V. Cambcll, 7 M. & G. 386. [t) Bull. N. P. 165, 177 ; Hu)it v. Cope, Cowp. 243 ; Xetcton v. AUin, 1 Q. B. 618. Sect. 8. — Continuance of Lessee's Liability. 439 iimoiinted to evictions, and that the tenants were not liable for subse- Ch. X. Sec. 8. •quent rent (?0- If a lessor serve a writ in ejectment under a clause Contuma)ice that for any breach of covenant the lease shall determine and be void, for Rent. lie cannot maintain an action for rent subsequently accruing or for breaches of covenant (r). If a lessor has no title, and the lessee is evicted b}' title paramount, he may plead that as a defence to an action by the lessor for subsequent rent {y). If a party having a paramount legal right to evict a tenant, goes to him and claims his right, on which the tenant attorns to him, it seems to be equivalent to an expulsion {z). AVliere lands were demised by parol, and the lessee onh' entered on and had possession of part, in consequence of the lessor having previously demised the residue to a third person ; it was held, that the want of possession was equivalent to an eviction by the tortious act of the lessor, and was not in the nature of an ■eviction by an elder title, and that therefore the rent was not appor- tionable, and could not be distrained for {a). But where the demise is b}^ indenture it will operate as a grant of the reversion as to such of the lands as are in the possession of a previous tenant, and a •demise of the residue of the lands {h). It is essentially necessary, in order to effect a suspension of rent. Eviction by , . . ' 1 ' ,v i I' I r • 1 mere Trespass that an eviction be not the enect oi a mere trespass, tor in such case ^Iq^^. j^q^ j^yg. the lessee is not excused from the jjayment of his rent : thus, where P*^"'^ ^eM. in an action of debt for rent the lessee pleaded, that Prince Rupert, J.^^^^'^ ^"^ ^' &u alien born, with a hostile army, had entered upon the lessee, and expelled him out of j^ossession, the Court of King's Bench held, that iie was still bound to pay his rent (c). Sect. 9. — Stipulation for Ahatement of Boit, i)i case of Fire, tOc. It has long been common, though it is not in the legal sense ■"usual" (ante, p. 127), to insert a proviso that the rent shall be suspended or extinguished in case of damage by tire. If the term used be " suspended " only, that does not mean postponement of pa)-- ment, but postponement of liability. Where the proviso was that in •case the demised premises or any part thereof" should be destroyed or ■damaged by fire, flood, storm, tempest, or other inevitable accident," (m) Uptun V. Toa-Hcnd and Upton v. («) XeaJc v. MachurJc (in error), 1 M. ■Grecnlccs, 17 C. B. 30. & W. 747 ; Watson v. Waud, 8 Exeli. [x] Jones V. Carter, 15 M. & W. 718. 335. (y) CuthlertsoH v. Irvimf, 4 H. & N. (b) Ecd. Commrs. of Ireland v. O'Con- 742 ; 6 Id. 135 ; 28 L. J., Ex. 306. nor, 9 Ir. Com. L. R. 242. (:) Mayor, age 9 — continued. (j) Beasts and Sheep 483 (k) Tools of Trade 485 (1) Agisted Stock 486 10. Proceedings in Distress 487 (a) When to be made 487 (b) What Arrears recoverable 489 Agricultural Holdings... 490 (c) Where to be made 491 (d) Certificated Bailitis 493 (e) Distress Warrant 495 (f) Fraudulent Removal 499 (g) How inipounded 505 (li) Xotice of Distress and Time for Keplevy 509 (i) Appraisement and Sale 512 (j) Surplus Proceeds and Unsold Goods 515 11. Costs of Distress 516 12. Practical Directions 518 13. Second Distress 522 14. Rescue and Pound Breach 524 uVute on Distress Jjcunagc Feasant 526 15. Satisfaction of Arrears by Execu- tion Creditor 527 (a) High Court 527 (b) County Court 534 (c) Admiralty Process 535 16. Charge on Proceeils of Distress of Salaiics and other Preferential Claims in case of Bankruptcy, &c 536 Definition of Distress. tSECT. 1. — DejinitiiDi and Scope of Distress. A DISTRESS is one of the most ancient and effectual remedies for the recovery of rent. It is the taking, without legal process, cattle or goods as a x>l(^d{ie, to compel the satisfaction of a demand, the performance of a duty, or the redress of an injury. The act of taking, the thing taken, and the i-emedy generally', having been called a distress ; an inaccuracy wliich the older text- writers usually avoided (a). («) See P.ullen on the Law of Distress, (2nd cil.), 1889. The remedies for wrong- 1842 ; Oldham & Foster's Law of Distress ful distress are considered post, Chap. XIL Sect. 1. — Definition and Scope of Distress. 443 The i^ower of distress appears to have been derived from the ancient feudal law, and to have been substituted for a forfeiture of the tenant's estate (h). Originally, and until the passing of 2 l'v: 3 AV. & M. sess. 1, c. 5, it was not so much a remed}' as the means of obtaining one ; for the chattels distrained remained only as a pledge in the hands of the distrainer, but could not be sold (c) ; and, as Blackstone observes, " although such a distress put the owner to inconvenience, and was therefore a punishment to him, yet if he con- tinued obstinate, and would make no satisfaction, it was no remedy at all to the distrainer " ((/). This power, however, became the means of great oppression in the hands of the barons (c), and continual enact- ments were passed up to 1 & 2 Philip & Maiy, c. 12, for the protection of tenants (/) : but the current of legislation afterwards took a turn, and w-as for a very long time wholly for the benefit of landlords rather than of tenants (//) ; a step in the favour of tenants, however, Avas taken, in 1871, b}' the act which protects the goods of lodgers from distress, another step, in 1872, by the act which protects railway rolling stock, a further and very considerable step — in relation to agricultural holdings only — by the Agricultural Holdings Act, 1883 {Sect. 10 (b), post), and a still further step by the Law of Distress Amendment Act, 1888, which extends to all holdings some of, but not all, the enactments of the Agricultural Holdings Act, 1883. Distress is incident of common right to every rent-service, properly so called (/<), and the rent due from a tenant to a landlord isproperl}' -called a " rent-service," though this description of it has long passed out of common use. It is also necessarily incident, by special reser- vation, to every rent-charge (li). But it was not incident to rent- seek (It) until the Landlord and Tenant Act, 1730, 4 Geo. 2, c. 28, s. 5 (i), extended the remedy of distress to rent-seek, rents of assize, and chief rents, and thereby in effect abolished nearly all material distinction between them (k). May distress for rent by agreement be made upon (jther lands of the lessee than those out of which the rent issues ? This was decided in the negative in the Court of Exchequer in Daniel v. Stepney (m), in a considered judgment, very shorily reversed by the Exchequer (b) Gilb. Rents, 5, 92. (c) Preamble to 2 W. & M., sess. 1, c. 5. (d) 3 Blac. Com. 14. (c) Barrington on Ancient Statutes, 14. (/) 51 Hen. 3, c. 4 ; 52 Hen. 3 (Statute •of JMarlebri(lge), cc. 1, 2, 4, 15, 21 ; 3 EJ\v. 1 (Stat, of Westminster), cc. 16, 17, 23 ; 13 Edw. 1 (Stat, of Westminster II.), cc. 36, 37 ; 1 & 2 Ph. & M. c. 12. (.'/) 17 Car. 2, c. 7 (second distress) ; 2 W. & M. sess. 1, c. 5 (power to sell distress) ; 8 Ann. c. 14 (satisfaction of rent by execution creditor) ; 11 Geo. 2, c. 19 ^distress on growing crops) ; 56 Geo. 3, c. 50 ; 3 & 4 Will. 4, c. 42, s. 38. (A) Ante, 404. (i) Ante, 404 ; Johnson v. Faulkner, 2 Q. B. 925. (-1) Com. Dig. tit. Distress (A. 1). (iti) Daniel V. Stepney, Ij. R., 7 Ex. 327; 41 L. J., Ex. 208 ; 27 L. T. 380 ; 21 W. R. 17, per Kelly, C. B., Martin, Bramwell, and "channell, BB. The lease was a mining one, with a power of distress over any lands in which there should be for the time being any jiits by which the coal by the lease demised should be in course of working by the lessees, their executors, administrators or assigns. Ch.XI.Skc.1. Defimtion and Scope. Distress ori- ginally could not be sold. History of Law of Distress. Distress for Rent-service for Rent- charge. Distress on other lands than those demised. 444 Chap. XI. — Distkess foe Eent. Ch.XI. Sec.I. JJefinition and Scope of Distress. Distress on other premises than those demised to the tenant — contd. Distress on other goods than those of tenant. Right to dis- train may he postponed. Chamber {n), on the ground that such an agreement bound assignees having notice of it. In Houndicood ColUeTy Companii, in re (o), the compan}' were lessees, from separate lessors, of two adjoining coal mines A. and B. There was no shaft on mine B., and the company worked both mines by means of a shaft on mine A. In each of the leases the lessor had power to distrain on chattels belonging to the lessees " in or about any adjoining or neighbouring collieries." The lessors of mine B. having distrained on chattels of the lessees on mine A., it was held by the Court of Appeal that the power to distrain did not constitute the mining lease a bill of sale so as to require registration, and that the distress, having been levied before the winding-up of the company, and before a receiver had been effectively appointed, was valid against the debenture holders of the compan}'. So far as authority goes, the case appears to legalize a distress (1) on outside premises not expressly defined, (2) a distress on premises held on lease from another than the demising and distraining landlord, so as to deprive such other landlord of a distress which he might him- self have taken, but (3) not to legalize a distress upon goods not belonging to the tenant of the distraining landlord. As we shall see presently (post. Sect. 8), all goods found on the demised j^remises, whether they belong to the tenant or not, were at common law liable to distress for the tenant's rent {y), and goods not belonging to the tenant are still so liable in additicm to goods belonging to him, unless they come within certain exemptions (post. Sect- 9), from the original harsh (r) rule of the common law, which is applicable to debts for rent alone amongst debts. The right of distress is not so inseparable an incident to rent- service that it cannot be postponed. Therefore a landlord may for good consideration undertake not to distrain for six months (s), a mesne landlord may contract not to distrain until after he has pro- duced to his tenant a receipt for the rent for the time being due to the superior landlord (f), and a superior landlord may undertake not to distrain on the goods of an intended lodger of his tenant (»)- From an agreement, to which the landlord of a firm is privy, for a sale by the tenant of some eatage of pasture to a third person, the amount produced by the sale to be paid to the landlord, a contract («) Daniel v. Stepney, L. K., 9 Ex. ISfi ; 2-2 W. R. 662— Ex. Ch., per Cockburn, CJ., Bhickburn, ilelk)r, Lush, and Denman, JJ. (o) Jioundicood Colliery Co., In re, Lee V. lioundwood Collierij Co., [1897] 1 Ch. 373 ; 66 L. J., Ch. 186 ; 75 L. T. 641 ; 45 W. K. 324— C. A., reversing Stirling, J. {p ) See p. 469, post. (r) See per Blackburn, J., in Lyons v. Elliott, 1 Q. P.. D. at p. 213 and p. 469 (s), post. (s) Ovcnham v. Collins, 2 F. & F. 172. {t) Giles V. SjKnccr, 3 C. B., N. S. 244; 2t'L. J., C. P. 237. (?f) Horsford v. Webster, 1 C, U. k R. 696. The Lodgers' Goods Protection Act (see post, Sect. 9 (t) ) renders such under- taking now generally unnecessary. Sect. 1. — Definition and Scope of Distress. 445 by him may be inferred not to distrain cattle put on the demised hind to consume the eatage (.r). Altliough a distress may be taken for any rent, including that due from tenants at will {y), it cannot at common law be made for the rent mentioned in a mere agreement for a lease, not amounting to an actual demise, where no tenancy at an agreed rent has been created expressly or impliedly by the payment of rent or otherwise {z) ; but the effect of the Judicatin'e Acts is, as was laid down in Walsh V. Lonsdale, to confer a right of distress on agreement for lease executed (a). Where a tenant holds over on sufferance onl}-, as there is then no " agreed rent," a distress cannot lawfully be made, but the remedy is by an action for use and occupation (^). If a mere termor affect to grant a lease for a term exceeding his own in duration, and to reserve an annual rent, that would operate as an assignment of his term (c), and the Landlord and Tenant Act, 1730, 4 Geo. 2, c. 28, s. 5{d), does not give power to distrain for such a rent (e). With respect to fee farm rents, it has been held that a distress is not incident to them, unless the case be brought within the Landlord and Tenant Act, 1730 (/). If in an action for rent judgment has been signed, the debt for the rent is merged in the judgment, and the rent for which judgment has been signed cannot be distrained for (g), and if it be distrained for iind the goods distrained upon be sold, double the value of such goods (see p. 557, post) is recoverable by the tenant from the landlord (It). A distress cannot generally be made for a rent reserved upon a letting of incorporeal hereditaments, as tithes, commons or tolls (0 ; but a power of distress may be expressly reserved in sucli lease in like manner as in the grant of a rent-charge. Gh.XI. Sec.1; Scope of Distress. Tenancy at ^Vill, or Agreement for Lease. Tenancy on Sufferance. Rent reserved in an Assign- ment of a Term. Fee Farm Rents. Rent for. wliich judg- ment .signed — ^Merger. Rent of Incor- ]ioreal Here- ditaments. (x) Horsford v. Webster, supra. (y) Lit. s. 72: Doed. Davicsv. Thomas, 6 Exch. 858 ; Doc d. Dixie, v. Davics, 7 E.xch. 91 ; Turner v. .Barnes, 2 B. & S. 435 ; 31 L. J., Q. B. 170. {z) Dunk V. Hunter, 5 B. & A. 322. (a) Walsh v. LomclaU, 21 Ch. D. 9, and Chap. IV., Sect. ], ante. Where, however, lu an action for specific performance of an agreement tor lease to defendants, the plaintiffs having under. an interim order entered into posses- sion, claimed the right to distrain on the goods of strangers for past arrears of rent, it was held that the order had suspended the relationship of landlord and tenant, that there being no tenancy there could be aio right to distrain, and that the doctrine of Walsh V. Lonsdale had no a{)})lication, inasmuch as there was no tenant holding under the agreement. Murgcdroijd v. Silk- stone and Dodswoiih Coal and Iron Co., t)5 L. J., Ch. Ill ; 44 W, R. 198— per Chitty J. {b) Alford V. Vickeri/, Car. & M. '280 ; Jcnner v. Clegy, 1 Moo. & R. 213 ; Wll- lianisY. Stiren, 9 Q. B. 14. (f) Ante, Chap. VII. {d) Ante, 405. (c) Lanijford v. Schnes, 3 K. & J. 220 ; 3 Jur., N. S. 859. (/) Bradbury v. Wright, 2 Doug. 624 ; Mitsgrave v. Emmcrson, 10 Q. B. 326. (ej) Chancellor v. Webster, 9 T. L. R. 568, ]ier Bruce, J., followed with approval by Cave, J., in FolLcr v. BrcuUey, 10 T. L. R. 445, infra. . {h) Potter V. Bradley, supra. See these cases doubted in Koa on Land- lord and Tenant, lind ed. at p. 436, citing Drake v. Mitchell, 251 and 427, ante ; Wcqg Prosser v. Evans, [1895] 1 (,). B. \m, and Phillips v. Sherrill, 6 Q. B. 944 ; but it is conceived that the two tir.st of these cases turn ujion the law of guarantee and the third on the Insolvent Debtors Act ; and that the principle "nemo debet bis vexari pro eadem causa would be infringed by distress for rent for which judgment had been given." (i) Co. Lit. 47 a. 446 Chap. XI. — Distress for Eent. Ch. XI.Sec.I. Scope of JJistress. Furnished Apartments. Liquidated Damages. Double Kent. Manual Ser- vices. No Distress for Debt for Goods sup- plied by Landlord to Tenant. Priority of tlie Crown. A distress may be made for the whole rent reserved on a letting of furnished apartments, because in contemplation of law the rent issues out of the realty onl}^ and not out of the furniture (A). But where the owner of a factory lets standings therein for looms, and supplies the power of working them at so much per week (there being no demise of the room), he cannot distrain for the weekly payments as for rent(/). It is otherwise where a definite part of the room is demised, with the use of steam power for working machines, kc. {m). Liquidated damages or forfeitures for breaking up pasture or meadow land, or for carrying hay, straw, itc, off the demised premises, at certain fixed sums in proportion to the extent of the breach, " to- be recovered by distress as for rent in arrear," may be distrained for, though the lease is not under seal (u). Double rent payable under the Distress for Rent Act, 1737,. 11 Geo. 2, c. 19, s. 18, ma}' be distrained for (o) ; and the exception, once said to obtain in the case of a weekly tenant {p), appears to- have been founded on a mistake {q). A distress may be made where the tenant holds by the service of cleaning the parish church, or of ringing the church bell at stated times, or b}' other manual service (r) ; but in such case the distress- cannot be sold. It has long been a common practice in brewers' leases of "tied houses " to insert a clause allowing the landlord to distrain on the tenant's goods for any sum of money due from the tenant to the landlord in respect of any malt liquors supplied by the landlord ta the tenant; ,but it was ruled by Denman, J. (.5), and afterwards held by the Court of Appeal (0, that such a clause constitutes a bill of sale requiring registration, so that a tenant ma}' recover damages from a landlord putting it in force. If the crown be lessor, it has priority, although no writ of extent may have been issued. This was held in a case where the crown as lessors put in a distress upon goods already distrained (but not sold) by assignees of a rent-charge created by the lessees {u). (^■) Kcmnan v. Andcrton, 2 Bos. & P. New K. 224. (?) Hancock v. Aiistin, 14 C. B., N. S 634; 32 L. J., C. P. 252; and see Edmondson v. Nuttall, 17 C. B., N. S. 280. {m) Selbij V. Greaves, L. K., 3 C. P. 594 ; 37 L. J., G. P. 251. (?0 Poim V. Forrest, 1 C. & K. 560 ; 11 Q. B. 949. (o) Johnstone v. Hudlestone, 4 B. & C. 922 : 4 L. J., K. B. 71 ; 28 R. R. 505. As to "double rent," see post. Chap. XX., Sect. 2 (c). {j} ) Sullivan Y. BisJioj}, 2 C. & P. 359. (q) Bullen on Distress, 116, note ; 2 Chit. PI. 344, note {v), (7th ed.). (r) Doe d. £dnei/ v. Bcnhmn, 7 Q. B. 976. (s) In Pulbrookv. Ashlnj, 56 L. J., Q. B. 376 ; 35 W. R. 779 ; approved by C. A. in l\\& Eoundwood Colliery case, supra, p. -144. [t] In Stevens v. Marston, 60 L. J., Q. B. 192 ; 64 L. T. 274 ; 39 W. R. 129— C. A. (n) Attoi-ney- General v. Leonard, 38 Ch. D. 622 ; 57 L. J., Ch. 860 ; 59 L. T. 624 ;. 37 W. R. 24. Sect. 2. — Conditions precedent to Distress. 447 Sect. 2. — Conditions in'ecedent to Distress. "Where the right to distrain exists, nothing but pajanent, or some- thing equivalent to payment, such as a tender of the arrears, or a release under seal, will be sufficient to take it awa}' : even attending upon the land on the proper day to pay the rent will not destroy the right to distrain unless a tender be actually made(,r). But where a landlord's receiver allowed the tenant to make a deduction of pay- ments for land tax every year for seventeen years, greater than the landlord was liable to pay, the landlord knowing or having the means of knowing all the facts ; it was held, that he could not distrain for the amount erroneously allowed, for such allowance operated as jmtjments, though the receipt given ever}' year showed the amount paid and the amount deducted (*/). Ch.XI. Sec.2. Conditions precedent to Distress. Right to dis- train until Payment. Allowance of Deductions operates as Payment. A distress cannot lawfully be made after the full amount of rent Tender before- really due has been tendered to the landlord, or to his agent having ^^ ^*^^^" authority to receive the rent(^). If the landlord or his agent sign a distress warrant and deliver it to the broker, but before he can effect an entrance to distrain, the tenant or his agent tenders the rent ivithout expenses to the landlord or his agent, it will be illegal afterwards to execute the distress warrant, and all parties concerned therein will be liable to an action of trespass (a) or trover (/>). After the distress has been made, but before it is impounded , the tenant Tender before may tender to the landlord or his agent the amount of the rent, "' together with a sufficient sum for the costs of the distress (c) ; after which it will be illegal to proceed further with the distress [d). But a tender of the I'ent with expenses after the inipoundinq is too late Tender after 111 . . ' . p ' , . Impounding,. to enable the tenant to maintain an action oi trespass, trover, detinue or replevin ; because the cattle or goods are then in the custody of the law, and not of the landlord or his agent {e). The subsequent detention is considered as the act of the law, and not of the dis- trainer, who has neither any property nor even a constructive possession of the cattle or goods distrained (/) ; and although they might be released with his consent, he is not legally bound to give (y) Home v. Leivin, 1 Ld. Rayni. 637 ; 1 Salk. 583 ; 12 Mod. 352. (!/) Bramston v. Robins, 4 Bing. 11 ; 5 L. J., C. P. 13 ; 29 R. R. 493 ; Waller v. Andreics, 3 M. & W. 312. (z) Brmiscomb v. Bridges, 1 B. & C. 145 ; 3 Stark. R. 171 ; 1 L. J., K. B. 64 ; 2 D. & R. 256 ; 25 R. R. 335 ; Holland v. Bird, 10 Bing. 15 ; Bennett v. Bayes, 5 H. & N. 391 ; 29 L. J., Ex. 391. {a) Bennett v. Bayes, 5 H. & N. 391 ; 29 L. J., Ex. 391. {b) Hatch V. Hale, 15 Q. B. 10. ;c-) Post, Sect. 8 (e). [d) Fertile \\ Beasley, 1 Moo. & R. 21 ; Evans v. Elliott, 5 A. & E. 142 ; Badd v. Thomas, 12 A. & E. 117. (c) Six Carpenters' case, 8 Co. R. 432 ; 1 Smith, L. C. ; Firth v. Purvis, 5 T. R. 432 ; 2 R. R. 637 ; Thomas v. Harries, 1 M. & G. 695 ; Ladd v. Thomas, 12 A. & E. 117 ; Ellis v. Taijlor, 8 J\I. & W. 415 ; Tennanfv. Field, 8 E. & B. 336. (/) Bex V. Cotton, Parker, 121 ; Turner V. Ford, 15 M. & W. 212 ; IVilbraham v. Snoiv, 2 "Wms. Saund. 47 a. 448 Chap. XI, — Distress for Pient. Ch. XI. Sec. 2. Conditiotis precedent to Distress. What amounts to an Impounding. such consent. However, if such tender he made within the five days allowed to the tenant to replevy (although after the impound- ing), a special action on the case, founded on the equity of the stat. 2 W. & M. sess. 1, c. 5, s. 2, may he maintained if the landlord afterwards proceed to sell the distress {(j). To avoid this the land- lord should, after such a tender, abstain from selling (which he may lawfully do) and merely keep the distress impounded as a pledge, according to the common law, until the arrears of rent, with expenses, are actually satisfied, or the tenant incurs the trouble and expense of a replevin, the costs of which will fall upon him. Whether the distress was " impounded " before the tender was made is sometimes a question of considerable nicety and importance. In one case the landlord's agent had delivered to the tenant a notice of distress, wherein it was stated that the cattle distrained, of which an inventory had been given, were impounded on the premises ; it was held, that the impounding was complete so as to make a sub- sequent tender unavailing (/<)• In another case, a landlord's agent went upon the tenant's premises, and walked round them, and gave a written notice that he liad distrained certain goods lying there for an arrear of rent,
. 145. (?) Yeoman v. Ellison, L. R., 2 C. P. (h) Pollitl V. Forrest, 11 Q. B. 949 ; 1 681 ; 36 L. J., C. P. 326. In this case €. & K. 560. the rent was 80Z. a -week. (o) Luiik V. Hunter, 5 B. & A. 322 ; 24 (/) Ante, Cha]). IV., Sect. 1, p. 91. R. R. 390. (s) Vox V. Benf, 5 Bing. 185 ; 2 M. & P. {'l))Andcrson\: Midland R. Co., ZYj.kY.. 281; 7 L. J., C. P. 68; 30 R. R. 566; <)14; 30 L. J., Q. B. 94 ; Lincro v. Judson, Vincent v. Godson, 24 L. J., Ch. 122. 29—2 452 Chap. XI. — Disteess for Eent. Ch.XI. Sec.^ Conditions precedent to Distress. Aeknowlcd^ llR'llt. Surrender. Eviction. lease was executed, nor was the quantum of rent to be paid ascer- tained ; and the plaintiff occupied under the agreement for three 3'ears, and i:)aid rent for two ; it was held, that this created a tenanc_y from year to year, and entitled the landlord to distrain for the arrears due at the rate previously paid {t). But where a tenant entered under an agreement containing stipulations for a lease at 25Z. per year, and an engagement by the landlord to complete certain erections, which vvere never completed, nor any rent paid, and the tenant, on being called on after some years' occupation, said he was ready to pay upon the erections being completed and an allowance made to him for some repairs ; it was held, that a demise at a certain rent could not be implied so as to entitle the landlord to distrain («)• So where a person let a furnished house at a certain rent from a future day, and agreed that he would furnish it suitably for a school; it Avas held, that such furnishing was a condition precedent to the right to demand the rent, and therefore that the lessor, not having furnished it, could not distrain (r). Where a person entered upon premises subject to the approbation of the landlord, who afterwards did not approve, but upon his agreeing to pay an advanced rent, as well for the time he had been in possession as for the future, allowed him to continue in possession ; it was held, that the landlord might distrain for the advanced rent accrued before the agreement as well as for what accrued afterwards — such agreement giving him the same power by relation to his tenant's first entry into possession, as it did to recover his rent in future (ij). An acknowledgment of an antecedent tenancy at a specified rent, with an agreement to go on on certain terms, is sufficient to authorize a distress (-e). If a tenanc}'' has existed, a surrender of the term must be complete {a), or the landlord's right to distrain will continue {h). If a tenant is evicted by title para- mount, but remains in possession under a new agreement with the person who has evicted him, his original landlord cannot distrain on him for rent(c). If a lessor exercise his option that a lease shall be void for breach of covenant, he cannot distrain for subsequent rent (. 14. Sect. 2. — Conditions precedent to Distress. 453 for rent accruing after the expiration of a notice to quit was con- Ch.XI. Sec.2. sidered to operate merely as a waiver of the notice (f). It should, CondiHons . . . . " . pnccdeut to however, be borne m mind that a notice to quit cannot be waived Distress. without the express or implied consent of hotli parties, and that it differs in this respect from a forfeiture {(/). Where it appeared that by the custom of the country the tenant Prolongation was to have the use of the barns, gate-houses. Sec, of the farm for a Custom of the certain period after the end of the term, for the purpose of threshing Country, out corn and foddering cattle : and the tenancy was determined at Michaelmas, and the landlord in January following distrained a corn- rick for rent due at Michaelmas, he having in the meantime obtained an injunction to restrain the tenant from canning off the premises corn in the straw ; it was held, that the holding by the tenant under the custom, though involuntaiy, was a prolongation of tlie original term, and that the landlord was entitled to distrain (Ji). Sect. 3, — Restraining Distress htj Injujiction. Before the Judicature Acts a distress could not be restrained by Injunction injunction (i). But section 25, sub-s. 8, of the Judicature Act, 1875, Di'stress. which enacts, that " an injunction may be gi-anted by an interlocutory Shaio v. order of the court in all cases in which it shall appear to the court •^^''*^2/- to be just or convenient," extends to authorize an injunction, and such an injunction was granted in SJiaw v. Earl of Jersey (k). In that case the plaintiffs were assignees of a mining lease, under which the defendant claimed to be entitled to a certain additional rent. The defendant had distrained twice, and the plaintifis had sued for unlawful distress. A special case had been stated to determine the construction of the lease. The defendant was restrained from dis- training until the determination of this case, b}' an injunction granted for a fortnight, and to be continued only if the rent should in the meantime be paid into court. An injunction restraining a distress was also granted in Walsh v. Lonsdale {1} upon the terms that the rent be paid into court. It may be observed that such a conditional injunction is more favourable for the landlord than the action of replevin, in which the tenant is compellahle to give security onl}-, although he may if he please make a deposit instead. (See post, Chap. XII.) (/) Zoiich d. Ward v. WUUmjalc, H. R. R. 207. Blac. 31] ; 2 R. R. 770. (/) Shaw v. Jersey {Earl of), 4 C. P. D. {g) Bhjth V. Dennett, 13 C. B. 178, 180. at p. 261, per Cotton, L.J. (Ii) Knight V. Bennett, 3 Biug. 361 ; [k) Shatv v. Earl of Jersey, 4 C. P. D. 11 Moore, 222; 4 L. J., C. P. 94; 28 359— C. A., affirming 4 C, P. D. 120; R. R. 640 ; Beavan v. Delahay, 1 H. Blac. 48 L. J., C. P. 308 ; 27 W. R. 787. 5 ; 2 R. R. 696 ; Nuttall v. Staunton, {I) Walsh v. Lonsdale, 21 Ch. D. 9, and 4 B. & C. 51 ; 3 L. J., K. B. 135; 28 ante, 91. 454 Chap. XI. — Distress for Eent. Ch. XI. Sec. 4. Who may dis- train {Rever- sioners). Distress inci- dent to the Reversion. Joint Tenants. Sect, 4. — Who may distrain. (a) Reversioners. The person legally entitled to the immediate reversion on a lease, when any of the rent thereby reserved becomes due, may distrain for such rent by virtue of the common law. But if he afterwards assign the reversion either absolutely or by way of mortgage, the remed}^ by distress for such arrears will be lost (m). So the right to distrain for previous arrears of rent may be lost by a severance of the reversion ; thus Avhere the plaintiff was tenant to six joint tenants, four of whom conveyed their shares to a third party ; it was held, that the six were not entitled to distrain for the arrears of rent due to them before the conveyance (»)• But a second lease to commence on the expiration of the previous one, creates onl}' an interesse termini during the continuance of the first lease, and does not amount to an assignment of the reversion (o). If a lessee for years assign his term, reserving a rent, but without an express power of distress, he cannot distrain for it when in arrear, because he has no reversion : his remed)' is by an action on the contract (jj). If a lessee sub-let for a term shorter than his own by one da}^ or more, he has a rever- sion and consequently a right to distrain, which will pass to his executors (q) ; and so has a tenant from j'ear to year, sub-letting from year to year (r). A termor after his term has expired, and a demand of possession by the lessor, cannot distrain ujjon his sub- tenant continuing in possession (s). If a termor surrender his term to the reversioner, reserving to himself a rent, but without an express power of distress, he cannot distrain for the rent when in arrear, because he has no reversion. But if a surrender be made, and a nev/ lease granted, the right to distrain on previous sub- tenants is preserved by the Landlord and Tenant Act, 1730, 4 Geo. 2, c. 28, s. 6, and the Real Property Act, 1845, 8 & 9 Yict. c. 106, s. 9 (t). One joint tenant, — as for instance, one of man^^ trustees — may distrain alone ; but he must avow or justify such distress in his (?;i) Bullen, 26, 74 Threr v. BaHon, ]Moore, 94 ; JJixon v. Harrison, Yaughan, 52 ; Broivn v. MdrojwUtan Counties Life hmirancn Society, 1 E. & E. 832 ; 28 L. J., Q. B. 236 ; Smith v. Tmi; 3 F. & F. 505. {n) Stavcley v. Alcock, 16 Q. B. 636 ; 20 L. J., Q. B. 320. (o) Smith V. Day, 2 M. & W. 684 ; Jilalchford, app. , Culc, resp., 5 C. B., N.S. 514 ; Doc V. Walker, 5 B. & C. 111. [p) Smith V. Maplehack, 1 T. K. 441 ; 1 K. Iv. 247 ; Tulentine v. Denton, Cro. Jac. Ill ; ParTnentcr V. Webber, 8 Tauut. 593 ; 20 B. R. 575 ; Precce v. Corric, 5 Bing. 24 ; 6 L. J., C. P. 205 ; 30 R. R. 536 ; Pascoc V. Pascoe, 3 Bing. N. C. 898 ; Bullen, 54. (q) Wade v. Marsh, Latch. 211 ; Bullen, 54. (?•) Cv,rtis V. Wheeler, Moo. & M. 493 ; Oxley V. James, 13 M. & W. 209. (s) Ihirne v. Richardson, 4 Taunt. 720 ; 14 R. R. 647. {t) Ante, Cliap. IX., Sect. 5. Sect. 4. — Who may distrain (Reversioners). 455 own right, and as bailiff of the others (?/). A distress for rent may Ch.XI. Sec.4. be authorized b}' one of several joint tenants (x). He may sion a f^J^o ma>j dis- 1 -Trt- T • p 1 train [Rever- distress warrant, and thereby appoint a baihii to distrain lor rent due sioners) to all, if the others do not forbid him ; and if when applied to they merely decline to act, that will not prevent him from proceeding {y). If some of the joint tenants assign their shares, the right of all the joint tenants to distrain for previous arrears of rent is at an end {z). A surviving joint tenant may distrain for arrears accrued in the life- time of his deceased companion (a). Where two or more executors or other joint tenants demise to their co-executor or co-tenant their shares at a fixed rent, it seems they may distrain for such rent when in arrear ih). Tenants in common, who were obliged to avow separately (c), should Tenants m make several distresses, each for his own share {d) ; thus, where land <^™'"^"- was demised by four persons (whose original title did not appear) at one entire rent, to be divided and paid separately in equal portions ; and one of the four distrained upon the tenant for her own share of the rent ; it was held, that the distress was regular, for whatever might have been the interest of the landlords as between themselves, as between them and the terre-tenant they were tenants in common, and entitled each to a separate distress (e). It seems they may all join in one distress ; but in justifying such distress they must avow or justify separately for their respective shares (/). It has been held that the survivor of two tenants in common may sue in covenant for the whole rent due upon a lease made by them, although the reserva- tion was to both according to their respective interests {g). If a rent-charge has been divided by will, or by deed operating under the Statute of Uses, amongst several persons as tenants in common, there may be several distresses without attornment (Ji). After a devise of a reversion to two tenants in common, one of them may distrain for his share of the rent upon the lessee of the devisor, where such lessee has paid the whole rent to the other tenant in common after notice not so to pay {i). Where a tenant in common demises his share to his co-tenant, he may distrain for the rent reserved {k). {u) Pullen V. Palmer, 3 Salk. 207 ; (d) Biadby, 41. Carth. 328 ; 5 Mod. 73. (c) Whitley v. Bobcrts, M'Clel. & Y. 107. (ce) Per Jervis, C.J., in Monian v. ( /) Bullen, 48. Parry, 17 C. B. 342. {g) Wallace v. M'Larcn, 1 Man. & R. (y) Bobiiisoii y. Hoffman, 4 Bing. 562; 516; Thompson v. Uakeicill, 19 C. B., 3 C. & P. 234 ; 6 L. J., C. P. 166 ; 29 N". S. 713 ; 35 L. J., C. P. 18. R. R. 627. (/(.) Rivis v. Watson, 5 M. & W. 255. (s) Staveley v. Alcock, 16 Q. B. 636 ; {i) Harrison v. Barnhy, 5 T. R. 246 ; 20 L, J., Q. B. 320. 2 R. P. 584 ; Povis v. Smith, 5 B. & A. («) Bullen, 47 ; 2 Rol. Abr. 86. 850 ; 24 R. R. 587 ; Doc d. Pritchitt v. {b) Coiupcr V. Fletcher, 6 B. & S. 464 ; Mitchell, 1 Brod. .^ B. 11 ; 21 R. R. 567. 34 L. J., Q. B. 187. [k) Brmnan v. Hood, 4 Ir. Com. L. R. (f) Pullen V. Palmer, 3 Salk. 207. 332, Q. B. 456 Chap. XL — Distkess foe Kent. Ch. XL Sec. 4. TF/io iHCUj dis- train [Rever- sioners). Heirs in Gavelkind. Coparceners. Tenants in Tail. Tenants by the Curtesy. Tenants in Dower. Tenants under Execution. One of several coheirs in gavelkind ma}' distrain for rent due to himself and his coheirs without express authority from them (I). Coparceners are considered in law but as one heir, and therefore before partition must join in making a distress {m) : or one coparcener may distrain alone for tlie whole rent, each having an estate in every part of it(»). No consent from the other coparceners need be previously obtained in order to authorize one coparcener to distrain alone, or alone to appoint a bailiff to distrain for the whole rent («). In the event of a replevin, however, the avowry must be, according to the nature of the estate, joint ; or the party distraining alone must avow in her own right for her own share, and make cognizance as bailiff of the other coparceners iii). After a partition, coparceners may of commou right make several distresses, and their grantees also have the same power (o). And even a rent-charge, although entire in its nature, may be divided between coparceners : and thus by act of law the tenant of the land may become subject to several dis- tresses {p). But coparceners after they have parted with their estate cannot distrain for previous arrears ((/). Although a tenant in tail make leases not conformable to any enabling act (r), such leases are good as against himself, and there- fore as a reversioner he may distrain even at common law for the rent reserved thereb}' is). A tenant by the curtesy ma}' distrain of common right (0 ; but a husband, unless he be tenant by the curtesy, cannot distrain for rent wliicli becomes due after the death of his wife under leases of her freehold made by both of them, or by him on her behalf (it). A widow to whom dowry has been duly assigned by metes and bounds, may distrain for the subsequent rent of that part {x). If a rent be assigned to a widow instead of her dower, she may distrain for it, although she luis no reversion, and the rent was granted without deed ; for such rent is in its nature distrainable of common right (?/). An entry under an execution, either by elegit, statute merchant or statute staple, gives so far an estate in the rent of land as to confer the power of distress, although there is but an uncertain interest in the reversion {z), and a tenant by elegit ma}' distrain without attorn- ment {a). {I) Leigh v. Shepherd, 2 Brod. & B. 465 ; 23 R. K. 516 ; Bullen, 46. (?n) Stedman v. Page, 1 Salk. 390 ; Stedman v. Bates, 1 Ld. Raym. 64. {n) Leigh v. Shepherd, 2 Brod. & B. 465 ; 5 Moore, 297 ; 23 R. R. 516. (o) Butler and Baker's case, 3 Co. R. 22 b ; Co. Lit. 164 b, 169 b. {p) Co. Lit. 164 b; Jlivis v. JFatsvii, 5 M. & W. 255. ((/) Dixon. V. Harrison, Vaughan, 52 ; and see Staveleyy. Alcock, 16 Q. B. 630. (?•) Ante, 3. (s) 1 Swanst. 346, note ; Bullen, 50. \t) Bradby, 46 ; BuUeu, 51. (h) See p. 301. . (./•) Co. Lit. 29 a, 34 b, 144 b ; Stoiigh- ton V. Leigh, 1 Taunt. 410 ; 11 R. R. 810. (v/) Co. Lit. 34 b, 169 b ; Bullen, 31, 52 ; Gilb. Rents, 20. (::) Bro. Abr. Distresses, pi. 72 ; Cuhitfs case, 4 Co. R. 7. (a) Lloyd v. Davics, 2 Exch. 103. Sect. 4. — Who may distrain (Eeversioners). 457 A lord of a manor ma)' of common right distrain for his copyhohl Ch.XI. Sec.4. rents (h), and by the Landlord and Tenant Act, 1730, 4 Geo. 2, c. 28, f ^'^ «f // ^^'«- ^ ^' "' train [Itcver- s. 5, he has the same right as if the rent was reserved upon lease. sioners). But copyhold rents are not within 32 Hen. 8, c. 37, giving a remedy Lords of by distress for arrears of rent to executors and administrators (c) . planers and *' _ Lominoners. Where two commoners agreed, to their mutual advantage, not to exercise their respective rights for a certain term ; it was held that one might distrain the other's cattle damage feasant during that time {d). In case of a common absolutely stinted in point of number, one commoner ma}" distrain the supernumerary cattle of another ; but not if an admeasurement be necessary ; or where the stint has relation to the quantity of common land : and a commoner cannot distrain where the owner of cattle has an}' colour of right to put them on the land, as that would be taking to himself jurisdiction as to the competency of such right ; but if there be no pretence or shadow of right, as in the case of the cattle of a stranger, the commoner may always resort to distress {e). A mortgagee, after giving notice of the mortgage to the tenant in Mortgagees, possession under a lease or tenancy created prior to the mortgage, ^g^^^J' ,. may distrain for the rent in arrear and unpaid at the time of the notice, as well as for rent which may accrue after such notice, although he was not in tlie actual seisin of the premises, nor in the receipt of the rents and profits thereof at the time tlie rent became due (/) ; but he may not distrain for rent due upon a lease made by the mort- gagor alone after the mortgage, unless he has accepted rent from the tenant, or has given him notice to pay rent, and the tenant has acquiesced, so as to create a new tenancy (express or implied) as between the mortgagee and the tenant (r/). Payment of rent by the tenant under a distress does not constitute an acquiescence by relation back to the period when notice was given (h). But the tenant may expressly attorn to the mortgagee as from a previous day, at a specified rent, which may accordingly be distrained for (/). A mortgagee may distrain on the mortgagor for rent reserved upon an attornment in the mortgage deed, whether such rent be payable in advance or not, and even where the mortgagee has not executed the deed, if the tenancy be at will only, or for a term not exceeding three years (k). (h) Laugher v. Humphrey, Cro. Eliz. {g'\ Rogers v. Humphreys, 4 A. & E. 299 ; 524 ; Bullen, 57, 58. Partington v. Woodcock, 6 A. & E. 690, (c) Applcton V. Doily, Yelv. 135 ; Bull. ante, 54. N. P. 57 ; Sands v. Hcmpson, 2 Leou. (A) Evans v. Elliott, 9 A. & E. 342 ; 142. Brown v. Storey, 1 M. & G. 117. (d) JFJiitemaTl v. Kiny, 2 H. Blac. 4. (i) Gladman v. Plumcr, 15 L. J., Q. B. (e) Hall V. Harding, 4 BuiT. 2432 ; 80 ; 10 Jur. 109. 1 W. Blac. 673. {k) Morton v. Woods, L. R., 3 Q. B. (/) Moss V. Gallimorc, 1 Doug. 279 : 1 658 ; 37 L. J., Q. B. 242. Smith, L. C. ; Pope v. £iggs,9 B. & C. 245. 458 Chap. XL — Distress for Eent. Ch.XI. Sec. 4. Jf'Jio mat/ dis- strain {Rever- sionei's) . Mortgagors. Aimuitants. Guardians. On Exchanges and Partitions. A mortgagor ma_y distrain, under a lease gi'anted by himself after the mortgage {I) : but he cannot distrain for arrears of rent due on a lease made before the mortgage ; for by the act of mortgaging the privity of estate is destroyed (?«)• But if a lessor, after mortgaging his reversion, is permitted by the mortgagee to continue in the receipt of the rents incident to that reversion, he, during such j^ermission, is prsesumptione juris authorized, if it should become necessary, to realize the rent by distress, and to distrain for it in the mortgagee's name, as his bailiff: and he may so justify the distress, although it Avas taken in his own name as for rent due to himself {n). So where a mortgage by demise has been paid off by the assignee of the equity of redemj)tion, who takes from the mortgagee an undertaking to execute a transfer of the mortgage, there is an implied authority to the assignee of the equity of redemption to distrain in the name of the mortgagee (o). A mere annuit}' may be distrained for where the deed creating it expressly confers a power to distrain (7?) ; but not generally in other cases (g). If an annuity be granted out of an estate, and the grantor, to secure the payment, vests the estate in trustees for a term, to the use of the annuitant, and subject thereto continues in possession, the annuitant may distrain for the arrears : for supposing the term to have given liim the reversion, the grantor is to be con- sidered as his sub-tenant, upon whom he might as reversioner distrain at common law (/•). Such guardians as may make leases of the infant's lands in their own names (s), may, during the minority of their wards, distrain in their own names for arrears of rent reserved by such leases if). (b) Persons not having the Ileversion. Although a person who has never had the reversion, or has parted with it, cannot generall}' distrain (?/), yet in some par- ticular cases the power of distress is held to be of common right, even without the reversion. Thus a rent granted upon an exchange may be distrained for without any reversion or express power {x), and so may a rent granted by one coparcener to another for equalit}' of partition {y). In such cases the grantee of the rent (/) Bradby, 99 ; Alchornc v. Gumme, 2 Biug. .54. (m) BuUen, 74. (n) I'rcnt v. Hunt, 9 Exch. 14 ; Heecev. Slrvnsbcrg, 54 L. T. 133. (o) Siiell V. Finch, 13 C. B., N. S. 651 ; 32 L. J., C. P. 117. {p ) Chapman v. Bcecham, 3 Q. B. 723. iq) Co. Lit. 32 a, 144 b; Bullen, 51, note (9). (?•) Fairfax v. Gray, 2 W. Blue. 1326. {s) See Chap. I., Sect. 21. (<) Shopland v. Ryolcr, Cro. Jac. 55, 98 ; Bedell V. Constable, Vaugh. 179 ; Bullen, 72. (it) Smith V. Mapleback, 1 T. K. 441 ; 1 R. R. 247. (,'■) Lit. ss. 2.52, 253 ; Co. Lit. 169 a ; Id. 153 a, note (1) ; Bullen, 31. ((/) Lit. .ss. 252, 253 ; Co. Lit. 153 a, note (1); Id. 169 b; Butler and Baker's case, 3 Co. R. 22 b ; Stukelcy v. Butler, Hob. 172 ; Bullen, 31, 45. Sect. 4. — Who may distrain (Persons not having Reversion). 459 may distrain for it without any express power in the deed; but if Ch.XI. Sf.c.4. such grantee assign over, neither he nor the assignee can distrain JHio may dis- for arrears due before the assignment (z). nuthavinrj A woman endow^ed of a rent by way of jointure in lieu of dower Reverston). may distrain for it, Avhether it be rent-service, rent-charge or rent- Jointures. seek, with or without deed (a). Although she have not the rever- sion, she may distrain for such rent of common right {h). The grantee or owner of a rent-charge, although he has no rever- Grantee of sion, may distrain for the arrears by virtue of the express power in '^"t-^liarge. the deed or will creating the rent-charge (c). So may the grantee or owner of a rent-seek, by virtue of the Landlord and Tenant Act, 1730, 4 Geo. 2, c. 28, s. 5 {d). The rents paid by copyholders, as tenants of the manor, to the Lords of lord, have always been considered as rent-service, fealty being neces- sarily incident to this species of tenure, and therefore they are distraiuable of common right {e). (c) Tenants imr autre Vic. By 32 Hen. 8, c. 37, s. 4, tenants pur autre vie may sue or 32 Hen. 8, distrain for arrears due during the life, and unpaid after the death of the cestui que vie, in like manner as at common law they might have done during his life. (d) Executors and Administrators. By the common law, executors or administrators could not dis- 32 Hen. S, train for arrears incurred in the lifetime of the owner of the rent (/); but by 32 Hen. 8, c. 37, s. 1, the executors and administrators of tenants in fee, fee-tail, or for term of life, of rent- services, rent- charges, rent- seek and fee-farm rents, were empowered to distrain upon the lands chargeable with the payment thereof, so long as such lands remain in the possession of the tenant who ought to have paid them, or of any other person claiming under him b}' purchase, gift or descent {g) ; and the Civil Procedure Act, 1833, 3 & 4 3 & 4 Will. 4, Will. 4, c. 42, enacts by sects. 37 and 38 that — 37. It shall be lawful for the executors or administrators of any lessor or landlord to distrain upon the lands demised for any term, or at will, for the arrearages of rent due to such lessor or landlord in his lifetime, in like manner as such lessor or landlord might have done in his lifetime. 38. Such arrearages may be distrained for after the end or determination of such term or lease at will, in the same manner as if such term or lease (s) Ante, Chap. VII. (c) Laugher v. Humphrci), Cro. Eliz. {a) Coll V. Bishop of Coventry, Hob. 524 ; ante, 442. 140, 153. ' (/) Co. Lit. 162 a ; Preamble of 32 (6) Co. Lit. 169 b ; Id. 34 b ; Gilb. Hen. 8, c. 37, s. 1. Rents, 20 ; Bullen, 31, 52. {g) See Hool v. Bell, 1 Ld. Eapi. 172 ; (c) Ante, 443 ; and see Owen v. IV^ynnc, 3 Salk. 136, as to the eoniinehensive appli- 4 E. & B. 579, and Sect. 13, intra. cation of this statute. {d) Ante, 443. 1. c. 42,ss.37,3S. 460 Chap. XI. — Distress for Eent. Ch.XI. Sec. 4. IFho may dis- train {Execu- tors and Ad- ministrators). Death of lessee. Demise to co-executor. Distress before Probate. Husbands in Right of their Wives. Under im- plied Tenan- cies from Year to Year. JVoodv. Tate. had not been ended or determined ; provided that such distress be made within the space of six calendar months after the determination of such term or lease, and during the continuance of the possession of the tenant from whom such arrears Ijecame due (h) ; provided also, that all and every the powers and provisions in the several statutes made relating to distresses for rent shall be applicable to the distresses so made. Where the lessee of lands dies before the exph-ation of the term, and his administrator continues in possession during the remainder and after the expiration of it, a distress ma}' be taken for all the arrears (?'), not exceeding six years (j) ; but it is otherwise where a mere tenant at will dies and his widow continues in possession (k). Where several executors demise to their co-executor at a fixed rent, it seems they may distrain for such rent when in arrear (1). An executor may distrain before probate, and may ratify a distress made by a bailiff in the name of the testator immediately after his death (m). (e) Husbands. Arrears of rent, arising out of land in whicli the wife has onl}' a chattel interest, whether accruing before or during the marriage, might always b}' the common law be distrained for by the husband ; and b}' 32 Hen. 8, c. 37, s. 3, the husband was allowed to distrain for arrears accrued before or during the marriage in respect of the wife's freeholds (ii), but not for subsequently accruing rent, unless he were tenant by the curtes}' (o). After the death of the Avife, the husband might distrain alone for all the rent due in right of the wife in her lifetime, even if it accrued to her in autre droit, as executrix {})). Though the wife might generally join with her husband, in no case Avhatever could she before the Married Women's Property Act, distrain alone (r/). (f) Corporations. If a lease be made by or on behalf of a corporation aggregate, not under tlieir common seal, although it be invalid as a lease, yet if the tenant hold under it and pay part of the agreed rent to the corporation or their bailiff or agent, that is sufficient to create a tenancy from year to year at a fixed rent, and to entitle the corpora- tion to distrain for such rent (r). (A) Compare Landlord and Tenant Act, 1709, Sect. 10 (a), post. [i) Braithivaitc v. Coukscy, 1 H. Blac. 465 ; 2R. H. 807. {j) Real Property Limitation Act, 1833, s. 42, Sect. 10 (b), post. (^■) Turner v. Barnes, 2 B. & S. 435 ; 31 L. J., Q. R. 170. (/) Cov:]}cr v. Fhtcher, 6 B. & S. 464 ; 34 L. J., Q. B. 187. (wi) Wkitchcadv. roi//or, 10 A.&E. 210. (n) Biillen, 56, 57 ; Ugncl's case, 4 Co. R. (o) Howe V. Scarrott, 4 H. & N. 723 ; 28 L. J., Ex. 325 ; ante. Chap. VIL, Sect. 8. (j)) Osborne v. JFickcndcn, 2 Saund. 195 ; Parry V. Hiudlc, 2 'Jaunt. 181. {q) Bullen, 54. {/•j Wood V. Tate, 2 B. & P., New R. 247; 9 R. R.ti45. Sect. 4. — Who may distrain (Corporations). 461 B}' the Landlord and Tenant Act, 1730, 4 Geo. 2, c. 28, s. 5 (s), Ch.xI. Sec.4. bodies politic and corporate are placed on the same footing as other TPiio may cii.s- persons with respect to the recovery of rent-seek, chief rents, and ' "tiomf^^"' rents of assize. 4 Geo 2 c 28 Corporations sole may sue or distrain in like manner as other s. 5. lessors. Any one of the churchwardens and overseers of a parish holding Chmcli- property under the Poor Relief Act, 1819, 59 Geo. 3, c. 12 (0, may, SveSms'.'''^ on behalf of himself and the others, distrain for rent due in respect of the property (»)• (g) Persons having Special Powers. It is of the very essence of a rent-charge that a jDower of distress Reut-cliarge. should be given b}^ the deed or will creating the charge {x), and a distress may be made accordingly when any of such rent is in arrear. So the assignee of a rent- charge may distrain for arrears thereof which become due after the assignment (?/), but not for previous arrears {z) . The grantor or owner of a rent-seek ma}" distrain for aiTears by Rent-seek. virtue of the Landlord and Tenant Act, 1730, 4 Geo. 2, c. 28, s. 5 (a). So a devisee may distrain for rent devised to him out of land, whether the land be expressly charged with a distress or not (&). A person who has possession of land, though he has not the legal estate, may by agreement grant another a power of distress (c). A covenant that the grantor of a rent should not replevy the goods distrained until the rent be paid, is void (d). Where by an inclosure act a yearly corn-rent was substituted in lieu of tithes, and a power of distress was given for the recovery thereof; it was held, that the goods of a tenant, coming in under the owner of land which had remained for several years untenanted, and wholly unprofitable, were liable to be distrained for such corn-rent in arrear (e). (h) Receivers and Agents. A private receiver cannot generally distrain without an exj)ress Bv Private power for that purpose (/). In Jolly \. Arhuthnot, by a receivershi]3 Receiver. deed executed contemj)oraneously with a mortgage in fee, which it Arbutlinot. {s) Ante, 443. {h) Buttery v, Robinson, 3 Binsj. 392 ; {t) Ante, 33. 11 Moore, 262 ; 4 L. J., C. P. 108 ; 28 R. R. (w) Gouklsu-orth v. KnUjlits, 11 M. & AY. 656 ; Sallonj v. Leaver, L. R., 9 Eq. 22. 337. (c) Cliajiman v. Beccham, 3 Q. B. 723 ; {x) Ante, 443. Pollittv. Forrest, 11 Q. B. 961. \y) Mauiid's case, 7 Co. K. 28. (d) 1 Inst., 145 b. (2) Broiun v. Mctropi'litan Counties Life (c) Xeicliivj v. Pcarce, 1 B. & C. 437 ; Insurance Society, IE. &;E. 832 ; 28 L. J., Bendyshc v. Pcarce, 4 Moo. 99. Q. B. 236. (/) Bullen, 72 ; Ward v, Sheic, 9 Bing. («) Ante, 443. 608 ; 9 Exch. 19. 462 Chap. XI. — Distress for Eent. Ch.XI. Sec. 4. Who fnai/ distrain {Receivers and Agents). Keeeivt'i's ap- pointed by Order of Court. Agents. recited, the mortgagor and mortgagee appointed a receiver, and constituted him their agent and attorney to receive the rents of the mortgaged propert}^ and to use such remedies by "way of entry and distress as should be requisite for that purpose. By the same deed the mortgagor attorned as tenant from year to year to the receiver, and there was a proviso that if default should be made in payment of the mortgage money or interest at the times appointed, the mortgagee might enter and avoid the tenancy created by the attornment. There was also a proviso that nothing therein contained should lessen the rights, powers or remedies of the mortgagee under the mortgage {g). On the mortgagor being found bankrupt, it was held, that the relation of landlord and tenant had been created between the receiver and mortgagor by the receivership deed, and that the receiver was entitled to distrain, and take the goods which had belonged to the mortgagor on the mortgaged premises {h). Receivers appointed by the High Court have a power, where they consider it necessary, to distrain, and need not appl}' first to the Court for a particular order for that purpose (0, because as the Court never makes an immediate order, but appoints a future day for a tenant to pay, it might be an injury to the estate to wait till that time, as it would give the tenant an opportunity' to conve}^ his goods off the premises in the meantime. If, however, there is any doubt who has the legal right to the rent, then the receiver should make an application to that Court for an order, as he must dis- train in the name of the person who has that right {k) ; unless indeed the tenant has attorned for him, and so created a tenancy as between them(/), in which case he should of course distrain in his own name (/;(). An authority to tenants to pay rent to a third person, whose receipt shall be a discharge, does not entitle that person to distrain, although he receives the rents for his own benefit (»). If a person having express or implied authority to distrain for rent due to another, says at the time that he distrains for rent due to himself, he may nevertheless justif}' as bailiff of the other (o). ((/) The real object of tbis was to enable the mortgagee to obtain all the advantages, without subjecting himself tothe liabilities of a mortgagee in possession. (h) Jolly V. Arhxdhnot, 4 De G. & J. 224 ; 28 L. J., Ch. 547. (i) Pitt V. Snoirdcn, 3 Atk. 750 ; Dancer V. Hastings, 4 Bing. 2 : 12 Moore, 34 ; 5 L. J., C. P. 3 ; 29 R. K. 740 ; Bemiett v. Eohins, 5 C. & P. 379. {k) Hughes v. Hughes, 3 Bro. C. C. 87 ; 1 Ves. jun. 161. (I) Evans v. Mathias, 7 E. & B. 590, 601 ; 26 L. J., Q. B. 309 ; White v. Smah; 22 Beav. 72 ; 26 Id. 191 ; Barton v. Hock, 22 Id. 81. [vi) Jolly V. Arhuthnot, 4 De G. & .1. 224 ; 28 L. J., Ch. 547. (n) Ward v. Shcic, 9 Bing. 608. (o) Trent v. Himt, 9 Ex. 14 ; Snell %-. Finch, 13 C. B., N. S. 651 ; 32 L. J., C. P. 117. Sect. 4. — Who may distrain (Sequestrators of Benefices). 463 (i) Sequestrators of Ecclesiastical Benefices. Ch.XI. Sec-I, 'By the Sequestration Act, 1849, 12 & 13 Vict. c. 67, any seques- dilVain trator duh' appointed to collect or receive the profits of any ecclesias- {^^Q'^f^trators , , J-, . T , of Eccle- tical benefice is empowered to levy any distress m his own name for iiasticai the recovery of tithes, tithe rent-charge or rent, &c., payable to the ^^"«fi«(^^)- incumbent of the sequestrated benefice. Sequestrators appointed by ^^ Seques- the High Court appear to stand on the same footing as receivers {p). Sect. 5. — Distress on Agricultural or Pastoral Holding, or on Market Garden. If the Agricultural Holdings Act, 1883, 46 ct 47 Vict. c. 61, applies, Applieation of that is, if the demised premises be either wholly agricultural or H?l'un".s Act wholly pastoral, or partly agricultural and partly pastoral, or wholly or partly cultivated as a market garden, held under a landlord for a term of years, or for lives, or for lives and years, or from year to year, and the tenant hold no employment under the landlord {q), then the landlord's rights of distress are subject to four (7*) special limitations particularl}' laid down by sections 44 to 47 of the act. First, it is enacted by sect. 44 that the six years' arrears which One year's the landlord might otherwise have distrained for shall be reduced Recovrrable!*^ to one year's arrears, the words being that "it shall not be lawful to distrain for rent which became due more than one 3'ear before the making of such distress; " but a proviso recognizes and encourages the continuance of the very common practice of deferring the collec- tion of rents for a quarter or half-year. (See p. 490, post.) Secondly, it is enacted by sect. 45 that agricultural or other Exemption of machinery on hire, and live stock on hire for breeding purposes, are ^^1^,?-^ ^l*^^"^ " ■"■ -i ' and Hired to be absolutely exempt from distress, and that agisted cattle, where Machinery a fair price is paid by the owner, are to be exempted conditionally, stock '*''^"° that is, in case other sufficient distrainable goods should be on the premises, and even when in such case distrainable, are to be dis- trainable only for the amount due to the tenant from the owner for their keep. (See p. 483, post.) Thirdly, as to procedure in case of an alleged wrongful distress, Determina- it is enacted by sect. 46 that any dispute relating to a distress may b\? County ^^'^'^ be heard and determined either by a county court or a court of Court or summary jurisdiction, either of which courts, subject to apjDeal to Peace. ( ji) Supra, 462. s. 52 (distress by certificated bailiffs), are, {q) See ss. 5i and 61 of the act, post, with amendments, made generally ajiplic- Appendix A., and see the application of able to all tenancies, by the Law of Dis- the act considered, post, Chap. XXI. tress Amendmen. Act, 1888, 51 &: 52 Vict, (r) Four other limitations, contained in c. 21 (post, App. A.), which repeals sec- s. 49 (costs), s. 50 (sale in public auction- tions 4y, 50, 51, and 52 of the Agricultural room), s. 51 (fifteen days for replevy), and Holdings Act, 1883. 464 Chap. XL — Distress for Kent. Ch.XI. Sec. 5. Distress on Agricultural or Tastoral Holding or on Market Garden. Set-otf of Compensa- tion. Can the Agricultural Holdings Act be contracted out of ? quarter sessions from a court of summary jurisdiction, and to the High Court from the county court (s), may make an order for restora- tion or " any other order which justice requires." (See Chap. XII., Sect. 3, post.) Fourthly, by sect. 47, where any compensation under the Agricul- tural Holdings Act or under any custom or contract has been ascer- tained, the amount of it may be set off against any rent due, and the landlord may only distrain for the balance. These sections, which present not a few difficulties, will be examined in detail presently it) ; but the question must at once be shortl}^ considered, whether or not the parties maj^ by special stipulation "contract out of" these sections, and legally, by pre- venting their taking effect, continue the rights and liabilities of the ordinary law. Upon the general principle qiiilihet potest renuneiare juri pro se introducto, there appears to be some reason for saying that the tenant may give up his rights under these sections, and perhaps an additional reason is supplied by the fact that the rights under other sections of the act, those which secure compensation for improve- ments, can by the express provision of the act in no case be contracted out of. The rule appears to be that a statute can be contracted out of unless it be contrary to public policy to contract out of it{v), or unless some third person's rights be damaged (a). It can hardly be said to be contrary to public policy to contract out of these sections ; but considering the extent to which the rights of third parties may be directly affected, it is submitted on the whole that thev cannot be contracted out of. Landlord ni; distrain for Six Months' Kent. No staj- of distress. Sect. 6. — Distress in Case of Banhruptcy . ay The landlord's right to distrain for rent, when the tenant becbmes bankrupt, which was always recognized by bankruptcy law {ij), is limited to six months' rent due prior to the adjudication. If any more arrears be then due, they may be proved for. Such is the effect of sect. 42, sub-sect. 1, of the Bankruptcy Act, 1883, 46 & 47 Vict. c. 52, as amended by sect. 28 of the Bankruptcy Act, 1890, 53 & 54 Vict. c. 71, which cut down the arrears recoverable from twelve months to six, but otherwise left sect. 42, sub-sect. 1 of the Act of 1883 untouched. {s) See Eanmcr v. King, 57 L. T. 367. («) See pp. 483, 490. («) That the Employers' Liability Act, 1880, could be contracted out of, .see Grifiths V. Earl Dudley, 9 (,). 15. D. 357. (.t) See Broom's Legal Maxims, 6tli ed., at p. 668. (y) Goods in the custody of a messenger in bankruptcy were not exempt from dis- tress, as being in the custody of the law. Brigijs V. Soicry, 8 M. & W. 729. Sect. 6. — Disteess in Case of Bankruptcy. 46i The distress under sect. 42, sub-sect. 1 of the Act of 1883 (whicli Ch.XI. Sec.6. re-enacts without alteration sect. 34 of the Bankruptcy Act, 1869) I>i^tress in Case of is not a " legal process " within the meaning of sect. 10, sub-sect. 2, Bankruptcy. of the Bankruptcy Act, so as to he stayable under that section {z) ; and notwithstanding the possession of a receiver, may be begun, continued, and ended without any leave from any court whatever {a). The general law upon this subject is more fully given and con- Preferential sidered in connection with the general rights of the parties in case 1'^^"'^" ^• of bankruptcy (ante. Chap. VII., Sect. 11, sub-sect, (e), j). 297), while the particular and very important law of " preferential payments " for wages, &c., is dealt with in sect. 16 of this chapter, post. Sect. 7. — Distress upon Company in Liquidation. Distress upon a joint stock company's goods is restricted by the Restriction of Joint Stock Companies Acts, and is not affected by the 10th section j|,^jj|^ ^? ^^' of the Judicature Act, 1875, which imports certain bankruptcy Companies rules into winding-up (Z>). By sect. 87 of the Companies Act, ' ' 1862 (25 & 26 Vict, c. 89), it is enacted, that " where an order has been made for winding-up a company under this act no suit, action, or otlier liroceeding shall be proceeded with or commenced against the company except with leave of the court, and subject to such terms as the court may impose;" and by sect. 163, that " where an}^ company is being wound up by the court, any attachment, sequestration, distress, or execution put in force against the estate or effects of the company after the commencement of the winding-up shall be void to all intents." It is settled by authority, though the point of construction is very doubtful (e), that these two sections are to be read together, and the enactment of sect. 163 that a distress Distress void shall be "void" means that it shall be void unless leave be given under sect. 87 (f/). But the landlord to obtain the benefit of leave under sect. 87 must either show some special ecjuity, or that the rent ought to be paid as one of the expenses of the winding-up {e), and a mortgagee under an " attornment clause " stands in a less favour- able position than a landlord (/). Thus, where the liquidators and unless leave iven. (~) Binnin'jlimn GasliyJd Co., Ex parte, Fanshau; In re, L. K., 11 E([. 615 ; 40 L. J., Bank, 52 ; 24 L. T. 639 ; 19 ^V. K. 603. («) Till, Ex parte, Mayheiu, In re, L. R. , 16 E(|. 97 ; 42 L. J., Bank. 84 ; 21 W. R. 574. [h) Thomas v. Patent Linnite Co., 17 Cli. D. 250 ; 50 L. J., Ch. 544 ; 44 L. T. 392 ; 29 W. R. 596, C. A. (c) See per cur. in Laiica.ihirc Cotton. Spinning Co., In re, 36 Cb. D. 656 ; 56 L. J., C'li. 761 ; 57 L. T. 511 ; 36 W. R. L.T. S05, C. A. {d) He E.chall Coal Mining Co. (Limited), 33 L. J., Cli. 595 ; 10 Jur. N. S. 576 ; 4 De G., J. & S. 37 ; 13 W. R. 219 ; and see EijtoJi V. Denbigh, tt-c. R. Co., L. R., 6 Ei[. 14; Hickman v. Johns, Id. 488; Lnndy Granite Co., In re, Heaven, Ec parte, L. R., 6 Ch. 482 ; 40 L. J., Ch. 588 ; 24 L. T. 922; 19 AV. R. 609. (e) See the eases above cited. (/) lb. ; IHfjijinsliinvMdlsandSinnninij Co., In re, [1896J 2 Ch. D. 544 ; 65 L. J. Cli. 771 ; 75 L. T. 5 ; 45 W. R. 56— C. A. 30 466 Chap. XL — Distkess for Eent. Ch.XI.Sec. 7. receivers of a cotton mill company took possession of the mill without Distress tipon objection by the mortgagee, and kej)t it in working" order to prevent liquidation, deterioration and to facilitate sale, the court refused to give the mortgagee leave to distrain for interest accrued since the date of taking possession, holding that the possession of the liquidators and receivers was as much for the benefit of the mortgagee as of the Rent due company (r/). It is settled, too, that leave will not be given to before wind- i j \^/ t> ing up order, distrain for rent accrued due from the company before the winding- up order (/<) ; though this rule has been held not to apply to a case where the company were sub-tenants only, and the landlord had accepted a collateral security for the rent from the company (i) ; and that the 10th section of the Judicature Act, 1875, which assimilates the rules in bankruptcy to the rules in winding-up as to rights of secured creditors (U)es not so far assimilate tiiem as to allow the landlord to distrain for such rent (A). For rent due before the presentation of the petition — to which the winding-up order has relation back (Z) — the landlord must prove, with the other creditors, in the winding-up. It has been said that the court will not, at the instance of the li([uidator, restrain further proceedings under a distress levied before winding-up commenced, but not com])leted by sale, unless there are special reasons rendering it inequitable to allow the distress to go on ; but the opinion hits been iiitinnited that the ccuirt has juris- diction both in a compulsory and a voluntary winding-up, to restrain further proceedings under such distress (m). Rent due alter As to rent accrued after the winding-up order, "if the company ord'er'"° "^' for its own purposes, and with a view to the realization of the pro- perty to better advantage, remains in possession of the estate, which the lessor is not therefore able to obtain possession of, connnon sense and ordinary justice require the court to see that the landlord receive the full value of his property " (/<) and to give the leave to ((/) H igiiinshaiv Mills Co., In re, [1896] 4 (_'li. 1).625 ; Tkomasv. Patent Lionile Co., 2 til. D. 544— C. A., and (») infni. suiMa. (A) he Progress Assurance Co., L- H., 9 [>) South Kensington stores. In re, Eq. 370 ; Traders" North Staffordsh ire Ji. Co. , infia (q). In re, L. R., 19 Eq. 60 ; 'I'homas v. Patent {m) Roundivood Colliery Co., In re, Lcc Lionite Co., s,\\\}va.\b), inuX l'ro;iv., Bailei/, v. Roundwood Collier ii Co., [1897] 1 Cli. and Di.von, In re, liobcrts and Wright, Ex 373: 66 L. .T.. Ch. 186; 75 L. T. 508; jmrte, 18 Ch. D. 649 ; 50 1.. .1., Ch. 738, 45 W. R. 217, per Stirling, .1. (reversed on where mortgagees having a right of distress other points), following (Jreat Ship Co., tor interest were ret'nsed leave to distrain Lire, 33 L. J., Ch. 245 ; 4 De G., J. k S. for arrears accrued before the winding-up. 63. For excejition in case where landlord not a (/i) Per James, L.J. , in Lundy Cranitc legal creditor, see note {s) infra. Co., In re, L. R., 6 Ch 466, cited with (i) Cari-iagc Co-operative Supply Asso- a|>proval by Hall, V.-C, iu yvr/h Voik- ciafiou, In re, Clemenec, Ee parte, 23 Ch. shire Iron Co., In re, 7 Ch. 1). 664. See D. 154, ])er Fry, J., not approved, thongli also SilLstoneand Dodirorth Coal and Iron not dissented from, in i\'c if C it i/ Const itu- Co., In rr, Perkins, Er jnnir, 17 Ch. D. tionalCluh Co., In re, 56 L. J.,"Ch. 332. 158 : 50 L. J., Ch. 444 ; 44 L. T. 405 29 (k) Coal Consumers' Association, In re, W. R. 484, per Fry, J. Sect. 7. — Distress upon Company in Lk^uidation. 4(37 distrain ; nor is the existence of a power of re-entry in the lease any Ch. XI. Sec.7. reason for refusina; such leave (o) . The Aijportionment Act, 1870 ( p), ^'f^>'<^^s upon ° ... . . Company in ma}' be resorted to for dividing a quarter's rent into a part which Liquidation. ma}' only be proved for and a part which may be distrained for (g), and the right to distrain begins to run, not from the date of the winding-up order, but from the date of the presentation of the winding-up petition (y). It has been twice held by the Court of Appeal (s), that the Distress where landlord's common law right of distress is not restricted by the Com- "Strauo-er" panics Act in cases where he is a " stranger " to the company- — -that ^° Company. is, in cases where the company is not his tenant, but the goods of the company are found ujion the premises of a j)erson who is. These decisions proceed upon the ground that in such cases the landlord has no right of proof in the winding-up, not beiiig a creditor of the company. All the cases up to 1882 will be found fully reviewed in Oak Pitts Review of ColUeri/ Co., In re (t), in which the Court of Appeal appears to have laid down the principles upon which leave is given or refused to the same effect as above stated. Goods (as furniture), comprised in debentures, if the value of them Furniture is less than the debenture debt, cease to be the property of the com- Debentures. pany, within the meaning of sect. 163, and the landlord may distrain as at common law (u) . A landlord w^ho has demised a mine to a company for a term of Further years, has a right, if, before the expiration of the term, the company Landlord. is ordered to be wound up, to enter a claim against the company in respect of the contingent liability to the future non-payment of rent by the assignee of the lease (.r). Where a company who were assignees of land granted for a feu duty, came to be wound up, the grantor was. held entitled to prove for arrears of feu duties, and also to enter a claim for the capitalized value of future feu duties {y). As to charge on proceeds of distress for certain " preferential Pn-ferential payments" to clerks and others, see Sect. 16, post. pa\iuen s. (o) Xorth Yorkshire Iron Co., Iti re. In re, 8 Ch. D. 616. ubi supra. it) Oak Pitts Collier d Co., In re, Ey ton's {]}) Aute, Chap. X., Sect. 6. Claim, 21 Ch. D. 3-22 ; 51 L. J., Ch. 768 ; (q) South Kensington Co-operative Stores, 47 L. T. 7; 30 W. K. 759 — C. A., in In re, 17 Ch. D. 250; 50 L. J., Ch. which it was held that the mere fact of a 446; 44 L. T. 471; 29 W. R. 662, per liquidator not endeavouring to surrender Fry, J. : Shackell v. Chorlton, [1895] 1 Ch. was not enough for giving leave to distrain. 378 : 64 L. J. Ch. 353 ; 72 L. T. 188 ; 43 (m) Xew City ConditiUional Co., In re, W. R. 394 : 2 Manson, 233 ; 13 R. 301, 56 L. J., Ch. 332— C. A. per Kekewich, J. {x) Re Haytor Granite Co., L. R., 1 Ch. (?•) See South Kensington, d-c., supra (g). App. 77 ; 35 L. J., Ch. 154 ; Ke London is) In re Limdy Gqanite Co., ubi supra and Colonial Co., L. R., 5 Eq. 561. (exhaustively explained bv Jessel, M.R., (y) Gartness Iron Co., In re, L. R., 10 in Traders' North Staffordshire Co., hire, Eq. 412; 39 L. J., Ch. 814; 23 L. T. iibi supra); Eegent United Service Stores, 389 ; 18 W. R. 1103, per Bacon, Y-.-C. 30—2 468 Chap. XL — Distress for Bent. Ch. XI. Sec. 8. Subject-mat- ters of Distress (Rules and Exemptions). Distress is of the Nature of a Pledge. Siiiqison V. Ilartopp. List of Things exempted from Distress. Fixtures. Animals. Trade. Use. Custody of Law. Tools, &c. Ambassador, Lodger. Looms. Gas-meters. Sect. 8. — The Siihject-matters of Distress. (a) General Rules and Exemptions. A distress being anciently considered merely as a pledge in the bands of tbe lord to compel tbe tenant to perform tlie service or duty required, could not at common law be sold ; but was to be restored in the same plight to the owner, when such service or duty was per- formed; and therefore nothing could be distrained unless it could be returned in specie and undamaged {z), and in the same state as when taken (a). This is why tenants' fixtures and the flesh of animals lately slaughtered cannot be distrained {h). The right to sell the distress Avas first given by 2 W. ifc M. c. 5, but that statute did not, except with respect to sheaves of corn, which were not at common law distrainable, do away with the exceptions founded on the common law rule. Subsequent statutes have further altered the law. The i^resent exceptions, of which the more important will be con- sidered in detail presently, may here be briefly stated as follows : — Things absolutely privileged — Fixtures (c) and other things which cannot be restored in same plight as taken : Animals fene naturae {d) : Goods delivered to a person in the way of his trade {e) : "J'hings in actual use (/) : Things in the custody of the law {g) : The things in'otected from a county court execution, being the wearing apparel and bedding of the tenant or his family and the tools of his trade up to the value of 5/. (//) : The goods of an ambassador (/) : The goods of a lodger (A) : Frames, looms, or machines used in the woollen, cotton, or silk manufactures {I) : Gas-meters, and fittings for gas (which term includes a gas- stove {m), being the projDert}' of a gas company incorporated by act of parliament {n) : (-) Gilb. Distr. 34, 48 ; Co. Lit. 47 h ; Pitt V. Slicic, 4 B. & A. -207 ; Vurhy v. Harris, 1 Q. B. 895. {a) Simpson v. IJarlopj), Willes, 515 ; 1 Smith, L. C. {!/) Murlcy v. Pincomhe, 2 Exch. 101 ; Broim V. Shevill, 2 A. & E. 138. ((•) Hdlatce.U v. Eastwood, 6 Ex. 295, and 472, jiost. {(1) Co. Lit. 47, and 473, post. (c) Swire v. Leach, 34 L. J., C. P. 150, and 474, post. (/) Simpson V. Uurtopp, 1 Smith, L. C, and 472, ])Ost. (f/) Page 476, post. \li) Law of Distress Amciidinent Act, 1888, 51 & 52 Vict. c. 21, s. 4, and 479, j)Ost, wliere see as to the loss of tlie privilege in case of tenancy expired. (i) Diplomatic Privileges Act, 1708, 7 Ann. c. 12, s. 3. See Novello v. Too) : Subjcct-mat. ters of Bistress If the Agricultural Holdings Act applies, hired machinery and (Rules and breednic^ stock, tL i_ Things privileged sub niodo or co)iditionaUi/, i.e. privileged only if there he other sufficient distress on the premises — Beasts of the plough and sheep (p) : Tools of trade (//) : If the Agricultural Holdings Act applies, agisted stock. There is no modern decision as to crown property ; hut it is laid down in the old hooks that a man cannot distrain during the posses- sion of the crown (r); and it would seem to follow that crown property', even though the crown be not tenant, is privileged on premises demised to a subject. Subject to the above exceptions, all cattle, goods and chattels which are found upon the demised premises may be distrained for rent, whether they be the effects of a tenant or of a stranger (s), the reason being that the landlord has a lien on them in respect of the place in which thej' are found, and not in respect to the person to whom they belong. "Where a stranger's goods are seized, he has, as in any other case where one man's goods are lawfully seized for another man's debt, a right to recover damages from the tenant (t). Moreover a stranger may dispute the landlord's title and is not estopped from disputing it as the tenant himself (see ante, p. 225) is {u). The property must be upon the premises, except in the case of a fraudulent removal (x), or cattle feeding or depasturing upon any common appendant or appurtenant to the demised premises Q/), and except in the case of distresses l\y the crown (z). Crown Property. Stranger, Distress on Goods of. Action against Tenant. Dispute of Landlord's Title. Distress, ordinarily on Demised Pre- mises only. (o) 35 k 86 Vict. c. oO, s. 3, post, 482. (p) Keen v. Priest, i H. & X. 236, and 483, post. iq) Gorton v. Falkner, 4 T. R. 565 ; 2 R. K. 463, and 485, post. (?•) Vin. Abr. "Distress" (2nd ed.), p. 125 : Br. Distress, pi. 46. (s) Gilb. Distr. 33; Bac. Abr. -Dis- tress" (7th ed.), p. 690. " The general rule at common law was," observes Blackburn, J., in Lyons v. Elliott, 1 Q. B. D. at p. 213, "that whatever was found on the demised premises, whether belonging to a stranger or not, miuht be seized by the landlord and held as a distress till the rent was paid or the service per- formed. This state of thinas produced no harm, because at common law the landlord not being able to sell the distress, he gene- xally gave up the goods as soon as he lound they were not the tenant's, as his continuing to hold them would not induce the tenant to pay. But in the reign of William and ilary a very harsh and unjust law (2 W. & M. c. 5) was passed by which the right was given to the landlord to sell any goods seized, and to apply the proceeds to the jiayinent of the rent unless the tenant or owner of the goods first paid it ; and this held out a great temptation to a laiullord to take the goods of a stranger although he knew that they were not the tenant's." (/) Exliall V. PartruUje, 8 T. R. 308 ; 4 R. R. 656. [a) Tadiruin v. Hcnman, [1893] 2 Q. B. 168 ; 5 R. 479. (>•) Post, Sect. 10 (e). (?/) Distressfor Kent Act, 1737, 11 Geo.2, c. 19, s. 8, post, p. 493. {z) BuUen, 76. 470 Chap. XI. — Disteess for Rent. Ch. XI. Sec 8. Subject-mat- ters of Distress {Rules and Exemptions). Money. Pai'tnersliip Property. Parke, Ex Xiarte. Distress of Corn and Growing Crops. 2 W. k U. sess. 1, c. 5, s. 3. 11 Geo. 2, c. 19, ss. 8, 9. Grass, Hops, Roots, Fruits, &c., may be distrained. Money out of a bag cannot be distrained, for one piece cannot be known from another ; but money in a bag sealed may be distrained ; for the bag sealed may be known again (a). Where a mortgage was made by two partners of a freehold of wliich the}' were tenants in common, and each attorned tenant to the mort- gagees of one moiety at a separate rent, it was held by Bacon, C.J., who pointed out that his decision was " directly against the common sense and justice of the case," that, under separate distresses for rent in respect of each moiety, the mortgagees could not seize the part- nershij) assets, but only such goods as each partner was separately- entitled to {h). (b) Corn and Groirivfi Crops. By the common law cocks and sheaves of corn and other farm produce and growing crops could not be distrained, but were abso- lutel}' privileged from distress for rent, although there were no other goods on the premises (c). But by 2 W. il^ M. sess. 1, c. 5, s. 3, " anj' person having rent in arrear and due upon any demise, lease or contract, may seize and secure any sheaves or cocks of corn, or corn loose or in the straw, or hay lying or Ixnng in any barn or granary, or upon any hovel, stack or rick, or otherwise upon any part of the land or ground charged with such rent, and lock up or detain the same in the place where the same shall be found, for or in the nature of a distress, until the same shall be replevied or sold : but the same must not be I'emoved from such place to the damage of the owner." Under this statute it seems that the landlord must sell at the expiration of five days, if the corn be not replevied {d). By the Distress for Kent Act, 1737, 11 Geo. 2, c. 19, ss. 8, 9, the landlord may take and seize, as a distress for arrears of rent, all sorts of corn and grass, hops, roots, fruits, pulse or other product (c) what- soever growing upon any part of the estate demised, as a distress for arrears of rent ; and the same may cut, gather, make, cure, carry and lay up, when ripe, in the barns or other proper place on the premises ; and if there should be no barn or proper place on the premises, then in any other barn or proper place which he shall hire or otherwise procure for that purpose, and as near as may be to the premises ; and in convenient time appraise, sell, or otherwise dispose of the same, towards satisfaction of the rent, and of the charges of such distress. («) P>ac. Abr. " Distress " B. , citing 22 Ed. 4, m b. {h\ Parke, E.r parte, Potler, In re, L. R., 18 Eq. -'581; 30 L. T. 618 ; 22 W. E. 768. A distress for the wliole rent, l)owever, may be made on tlie goods of any tenants holding under a joint demise, or a demise in common. See Bullen, 80. (c) Simpson v. Harto2yp, AVilles, r)12; 1 Smith, L. C. {(l) Pvjijott V. Bhilcs, 1 II. & W. 448. (c) These words do not iuchide young trees growing in a nursery ground, but only otlier things ejusdcm [fcncris to those enumerated ; CUirk v. Guskarth, S Taunt. 431 : 20 I!. R. f)16. Sect. 8. — Subject-matters of Distress (Corn, etc.). 471 appraisement and sale; the appraisement thereof to be taken when Ch.XI. Sf.cS. cut, gathered, cured and made, and not before; provided that Si(hji'ct-mat- / -\ c ^ 1 1 IT iiiiiTTiii f''>'s of Distress notice (/)oi the place where such distress shall be lodged, shall (Com, ^c). within the space of one week after the lodging or depositing thereof one Week's in such place, be given to the tenant, or left at the last place of his Notice to Tn- , 1 11 11 p 1 ii'^iit of Place abode ; and it the tenant shall pa}' or tender the arrears oi rent and of Distress. costs of the distress before the corn, \'c., be cut, the distress shall cease, and the corn, &:c., be delivered up. By the Sale of Farming Stock Act, 1816, 56 Geo. 3, c. 50, s. 6, 56 Geo. 3, landlords are not to distrain for rent " on any corn, hay, straw or other produce," which have been seized in execution and sold by the sheriff or other officer according to provisions of that act, under the contract of the tenant not to take the straw, &c. off the premises, and which at the time of the sale have been severed, "nor on any turnips whether drawn or growing," if sold according to the provi- Turnips. sions of the act. B}' the Landlord and Tenant Act, 1851, 14 & 15 Vict. c. 25, s. 2 if/), growing crops seized and sold under an execution are liable for accruing or subsequent rent. The grantee of a rent-charge, with power to distrain in the same Cases decided manner as the law directs in case of rent in arrear, may under sueh> sJ,7,wt. power, and 2 W. & M. sess. 1, c. 5, and the. Landlord and Tenant Act, 1730, 4 Geo. 2, c. 28, s. 5, distrain oats and hay in stacks or trusses (/<). Trees, shrubs and plants growing in lands which the defendants had demised to the plaintiffs for a term, and which they had converted into nursery ground, and planted subsequentl}^ to the demise, are not distrainable by the landlord under the Distress for Rent Act, 1737, 11 Geo. 2, c. 19, as it api)lies only to corn and other products of the land which may become ripe, and are capable of being cut and laid up(/). Growing crops cannot be sold before they are ripe (A), but where the jury find that no damage has been sustained by the premature sale, the tenant is not entitled to a verdict even for nominal damages (Z). A tenant's growing crops, taken in execution and sold, and remaining on the premises for the purpose of being reaped, are distrainable by the landlord for rent become due after the taking in execution (m). A custom that a tenant may leave his away-going crop in the barns, &c., of the farm for a certain time after the lease has expired, operates as a (/) See Form of such Notice, Appen- {k) Oicen v. Lcgh, 3 B. & A. 470 ; 22 R. 1?. dix D. , Sect. 5. 455 ; Proudlovc v. Twcmloic, 1 Cr. & SI. 326. {(j) Tliis act is set out verbatim in [1] liodgers v. Parker, 18 C. B. 112 ; 25 Apjieiidix A., Sect. 4. L. J.. C. P. 220 ; and see Lucasw Tarlc- (h) Jo/nisonv. Faulkner, 2 Q. B. 925. ton, 3 H. fi, N. 116. But see Miller v. Green, 2 C. & J. 143; {m) Landlord and Tenant Act, 1851, 14 8 Bing. 92. & 15 Vict. c. 25, s. 2 : ju.st, Appendix A., (i) Clark v. Gaskarth, 8 Taunt. 431, Sect. 4, where this act is set out verl)atini. 742 ; 20 K. R. 516 ; Clarke v. Calvert, 3 As to the previous law, see IVharton v. Moo. 114. Naijlor, 12 (^ B. 673 ; 6 D. k L. 136, 472 Chap. XL — Distress for Rent. Ch.XI. Sec.8. prolongation of the term; and the landlord may distrain the corn Subject-mat- g^ ^eh^ for rent in arrear, before six months have exi)ired from the TCi S Of .U ISZt CSS ^ (CorM, %c.). determination of the term (»). Corn sown by a tenant at will (who died before harvest), and purchased by another person, cannot be distrained b}' the landlord for rent due from a subsequent tenant (o). Fixtures are absolutely exempt from Distress. Railwiiv. Sect. 9. — Tiie Exemptions from Distress. (a) Fixtures. Things annexed to the freehold, such as buildings and fixtures, constitute, for the time being, part of the freehold, and are absolutely exempt from distress, although there are no other goods on the premises. Therefore furnaces, millstones, chimney-pieces and the like cannot be distrained, because they cannot be taken away without doing damage to the freehold, which the law will not allow {p) ; and because those things only can be distrained for rent which the landlord can afterwards restore in the plight in which they were before the distress, and without injury thereto by the removal {q). So also kitchen I'anges, stoves, coppers, grates and othei' fixtures of the like nature put up by the tenant for the more convenient or profitable use of the demised premises, and which he is entitled to sever and remove during the term, are not distrainable for rent (although they maj^ be seized and sold by the sheriff under an execution against the goods of the tenant) (?•), unless the tenant has by his lease or agreement renounced his right to disannex and lemove them during the term (s). A railwa}' is not distrainable (0- ^Machinery fixed to the freehold, not for the improvement or profit- able use of the land, but only for the purpose of being more con- veniently used as machinery ; for instance, a mule used for spinning cotton, though sunk into a stone floor and secured by molten lead, retains its chattel character, and may be distrained for rent (u). A mere temporary removal of fixtures for purposes of necessity is not sufficient to destroy the privilege (.r), thus a smith's anvil on which he works is not distrainable ; for it is accounted part of the forge. [n) Bcavan v. Dclahay, 1 H. Blac. 5 ; 2 R. R. 696 ; Kni(jht v. Benctl, 3 I'.iug. 364 ; 4 L. J. C. P. i»4 ; 28 R. R. 643. (o) Eaton V. Soulhby, ^Villes, Kd. ilA Sii)i/)soii V. Ilnrtopp, 1 Sniitli, L. C. ; Amos& F. :^14— 318 (2iul<'(l.). {q) Co. Lit. 47 I) ; Pill v. Shcv, 4 ]'.. & A. 207 ; Darby v. Harris, 1 Q. JJ. 89.T ; Dalton V. Whittr.m, 3 Q. 15. 961 ; Thomp- son V. Pdtitt, 10 Q. H. 101 ; Moore v. Lrinkirntcr, 1 F. & F. 134 ; Smith L. &T. 196 (2iia ed.) ; Bnllen, 92. (?•) Poole's case, 1 Salk. 368 ; Place v. Facjq, 4 M. & K. 277 ; Bates v. Dnhc of Bcnufort, 8 Jur., N. S. 270, L. J. (s) Dumerguc v. Rmnsry, 2 H. & C. 777 ; 33 L. J., Ex.' 88. [t) Turner v. Cameron, L. R., 5 Q. B. 336 ; 39 L J., Q. B. 125. (u) Hcllatrell v. Eastwood, 6 Exch. 295 ; 1 Smitli, L. C. (.7-) Gorton v. Falkncr, 4 T. R. 567 ; 2 R. R. 463. Sect. 9. — Exemptions from Distress (Fixtures). 478 though it be not actually fixed by nails to the shop (?/) ; so a mill- Ch.XI. Sec.9. stone is not distrainable, though it be removed out of its proper Exemptions l)Iace in order to be picked ; because such removal is of necessity, " {Fixtures). and the stone still continues to be part of the mill (//) ; nor a lime- kiln, which is considered not to be a personal chattel, but part of the freehold {z). In like manner kej'S (a), windows, and charters Keys. concerning the realty, being b}' construction of law parcel of the freehold, are not liable to be distrained {h). If a landlord under a distress of rent, sever fixtures from the freehold and dispose of them, he is liable in trover ; the articles may be described in the statement of claim as goods and chattels ; and the plaintiif does not thereby waive his right of maintaining that the distress is illegal because fixtures cannot be distrained for rent in arrear (c). In such action their value as cliattels only (not as fixtures) can be re- covered (f?). But it seems otherwise in an action of trespass (e). No action can be maintained for a mere constructive seizure of fixtures as a distress, but without any actual seizure or severance or removal thereof (/). (b) Animals Fene Xatiuve. Those things wherein no man can have an absolute and valuable When Ani- property, such as cats, wild rabbits and animals ferae naturte, cannot Xaturaj may be distrained ((/) ; but if deer, which are fer^e naturae, are kept in a be distrained. pi-ivate enclosure (not being a park) for the purpose of sale or profit, this so far changes their nature, by reducing them to a kind of stock or merchandise, that they may be distrained for rent (h). And deer Deer, in a park when reclaimed become personal chattels, and cease to be parcel of the inheritance (?'), so that it seems they also may be dis- trained for rent [k), as likewise may birds kept in cages, as parrots or canaries, and even pheasants and partridges in coops before they can fly, inasmuch as they may be the subject of larceny (Z). As for dogs, the}' are not indeed the subject of larceny ; and Lord Coke (in) Dogs. thought them not to be distrainable, but the better opinion seems to be that they are («). (y) Bro. Abr. tit. Distress, pi. 23 ; Amos (h) Davics v. Poiccll, Willes, 46. .& F. 317 (-inded.). [i) Ford v. Tytdc, 2 J. & H. 150; 31 (2) Mblet V. Siiiilh, 4 T. R. 504. L. J., Ch. 177. (rt) 11 Co. R. 50 ; 6 Exeh. 311. {h) Morgan v. Burl of Abcrgaven/n/, 7 {b) Gilb. Distr. 34, 48 ; HellawcU \. C. B. 768 ; Bullen, 90. Ecostwood, 6 E.xeli. 295. {I) Rcy. v. Cory, 10 Cox, C. C. 23 ; (c) Dallon v. Whittem, 3 Q. B. 961 : Reg. v. Shicldc, L. R., 1 C. C. R. 158 ; Smith L. & T. 199 (2nd ed.). 38 L. J., M. C. 21. {d) Clarice v. Ilolford, 2 C. & K. 540. (m) Co. Lit. 47 a. \e) Thompson v. 'Pcttitt, 10 Q. B. 101 ; {n) Davics v. Powell, Willes, iS; Bunch M>iwe V. Drinkwater, 1 F. & F. 134. v. Kennington, 1 Q. B. 679 ; Smith L. & (/) Beck V. Denbigh, 29 L. J., C. P. T. 203 {2iid ed.); Bullen, 90. Aud see 273. tlie question discussed in the notes to {g) Co. Lit. 47 ; Bullen, 90. Simpson v. Hartopp, 1 Smith, L. C. 474 Chap. XI. — Distress for Rent. Ch.XI. Sec.P. Exemptions from I)i,stres>> {Goods sent to Trader). Exemption for the Benefit of Trade. Farrier. Weaver. Pawnbroker. Horse. Carriage. Boat. I'ictun (c) Goods delivered to a Person in the n-aij of Iris Trade. Things delivered to a person exercising a public trade, to be carried, wrought, worked up or managed in the way of his trade or employ, are absolutely exempt from distress, although there are no other goods on the premises (o). Thus a horse standing in a smith's shoj:) to be shod, materials sent to a weaver, or cloth to a tailor to be made up, and tlie like, are privileged for the sake of trade and commerce, which could not be carried on if such things under these circumstances could be distrained for rent due from the person in whose custody they are (p). But although materials delivered by a manufacturer to a weaver, to be by him manufactured at his own house, are privileged from distress for rent due from the weaver to his landlord, yet a frame or other machinery delivered by the manu- facturer to the weaver aU)ng with the materials, for the purpose of being used in the weaver's house in the manufacture of such materials, is not privileged, unless there are other goods upon the premises sufficient to satisfy the rent due (q). The result of the cases has been said to be, that if articles are sent to a place to remain there, they are distrainable, but that if sent for a particular object, and tlie remaining at the place be an incident necessary for the completion of that object, they are not (r). But this rule will not account for all the decisions, and the exemption seems rather to arise solely for the benefit of trade (s). Goods pledged with a pawnbroker are not distrainable for rent due from him, notwithstanding they have remained in his possession above one year Avitliout any interest being" paid (0- Horses and carriages standing at livery may be distrained (ii), but a carriage sent to a coachmaker and connnission agent for sale may not (.r), nor may goods warehoused in the ordinary course of business at a furniture repository {y). The privilege does not attach to a boat sent b}' the owner to salt works, and left a reasonable time in a canal on the premises, for the purpose of being loaded with salt (z), nor to a ship in the course of being built in a dock (a), nor to brewers' casks sent to a public-house with beer, and left there till the beer is consumed (/>). Nor to a picture sent back by the (o) Simpson v. Hurtopp, AVilles, 512 ; 1 Smith, L. C; BuUen, 95. {p) Co. Lit. 47 a; Gishuurn v. Hurs', ] Salk. 249 ; Gibson v. Ircson, 3 Q. B. 39. {q) Wood V, Clarke, 1 C. k J. 484 ; Gibso^i V. Ircsoit, 3 Q. B. 39. (»•) Farsoiis v. Gingcll, 4 C. B. 545 ; 16 L. J., C. P. •/27. (a) See Lyons v. Elliott, note (/), infra. (t) Swire v. Lrach, 18 C. B., N. 8. 47l» ; 34 L. J., C. P. 150. (ii) Francis v. Il'ijatf, 1 W. P.). 483 ; 3 Burr. 1498 ; Earsons v. Gingcll, sui)ra. (a) Findon v. JELaren, 6 Q. B. 891. (?/) Miles V. Earbcr, L. K., 8 Q. J!. 77 ; 42 L. J. , Q. B. 41 ; 27 L. T. 756 ; 21 W. K. 202. {z) Muspratt v. Gregory, ] M. & W. 633 ; S. C. (in error), 3 .M. & \V. 677. (a) Clarke v. Milhvall Dock Co., 17 Q. B. D. 494 ; .55 L. J. , Q. B. 378 ; 54 L. T. 814 ; 34 \V. P. 698— C. A., attirui- ing Pollock, B. ; 53 L. T. 316. {b) Joule V. Jackson, 7 U. k AV. 450. Sect. 9. — Exemptions from Distress (Goods sent to Trader). 475 purchaser to the artist to he altered (c). But where a hutcher had Ch.XI. Sec.9. sent a heast to the shop of another hutcher to he shiuohtered. and J^-mnpfwi/.s . . ' ' jroin Distress after it had been shinghtered the carcass remained in the shop for [Goods sent to some time (but how long did not appear), it was held that tlie lac^n- carcass was privileged {d). Butclier. Goods of a i)rincipal in the hands of a factor for sale are privi- '^'"> I'lni Hailds of iX leged irom distress lor rent due irom such lactor to his landlord, Factor or on the ground that the rule of public convenience, out of which ^S^nt. the privilege arises, is within the exemption of a landlord's general right to distrain {e). On the same principle goods landed at a wharf and consigned to a broker as agent of the consignor, for sale, and placed bv the broker in the wharfinger's warehouse over the wharf for safe custody' until an opportunity for selling them should occur, were held not distrainable for rent due in respect of the whai'f and warehouse (f). Similarly, corn sent to a factor for sale, and deposited by him in the warehouse of a granary-keeper, he not having any warehouse of his own, is under the same protection against a distress for rent as if it were deposited in a warehouse belonging to the factor himself (f/). Goods sent to an auctioneer to be sold on premises occupied by Auctioneer. him, or in an open yard belonging to premises in his occupation, are privileged (It), though the place of sale is merely hired for the occasion, or the occupation has been acquired b_y the auctioneer by an act of trespass (/). But there must be a de facto occupation by the auctioneer, otherwise the privilege is lost. Therefore where an auction was held on the tenant's premises of the tenant's goods, and the goods of the plaintiff were for convenience being sold along with them, it was held, both on authority (/i) and principle, that, as the auctioneer was in no sense the occupier of the premises, the goods of the plaintiff might be distrained along with those of the tenant (0- The cattle and goods of guests at an inn, so long as they remain Goods at an on the premises, are exempt from a distress for rent due from the innkeeper {in). But they must be actually within the premises of ((■) Von Knoop v. Moss and Jameson, [i) Brown v. ArundeU, supra. 7 T. L. R. .500, per Mathew, J. {k) Crosier v. Tomkinson, intVn. [d) Brown v. Shcvill, 2 A. & E. 138. (J) Lyons v. Elliott, 1 Q. B. D. 210 ; 45 (c) Oilman v. Elton, 3 Bred. & B. 75 ; L. J., Q. B. 159 ; 33 L. T. 806 ; 24 23 R. R. 567. W. R. 296. This decision has been not (/) Thomjhwn v. Mashiter, 1 Bing. a little criticised (see Redman and Lyon 283 ; 8 Moore, 254 ; 1 L. J., C. P. 104 ; L. & T. 2nd ed., p. 164, 3rd ed., p. 221) ; 25 R. R. 624. but it seems that, as the goods of third {ij) Matthias v. Mesnard, 2 C. & P. 353. parties have never been exempted gene- But wine sent to a warehouse merely to rally, the burden of proof is upon each be matured has been held not exempt. third party to bring himself within the Ex parte liusseJl, 18 W. R. 753. benefit of the exemption he sets up. (/() AdMins V. Grane, 1 Cr. & M. 380 ; {m) Bac. Abr. Inns and hinkeeiicrs (B.); Brovm v. ArundeU, 10 C. B. 54 ; Crosier v. Tomkinson, 2 Ld. Ken. 439. Williums V. Holmes, 8 Exch. 861. 476 Chap. XL — Distress for Eent. Exemptions from Distress {Goods sent to Trader). Ch.XI.Sec.9. the inn itself, and not in any place to wliicli the innkeeper may have removed them for his convenience : thus, where a racehorse was distrained for rent at a stable half a mile distant from the inn, the distress was determined to he a good one, and that the plaintiff had no remedy hut against the innkeeper {n). It was once held that the consent of the landlord to the goods being upon the premises would not avail to prevent his power of distress : but if such consent were fraudulentl}' given for the purpose of obtaining a distress, equity would relieve upon the ground of fraud : thus, where the servants of a grazier driving a flock of sheep to London, were encouraged by an innkeeper to put the sheep into pasture grounds belonging to the inn, and the landlord, seeing the sheep, consented that they should stay there for one night, and then distrained them for rent, the grazier was relieved against the distress (o). Tilings in use may not be (listiained. . (d) Tilings in actual Use. Things in actual use are absolutely privileged from distress for rent, or even for damage feasant, because of the danger to the public peace ( 2?) . Therefore a horse, whilst a man is riding upon him, or an axe in a man's liand cutting wood, or the like, cannot be distrained (q). But a dog used for sporting purposes, or permitted to run into the woods, and not led by a string, is not exempt from a distress for damage feasant (/). Horses, whilst drawing a cart, and the harness thereon, are exempt from a distress, even for damage feasant (s). Yarn being carried on a man's shoulders to be weighed cannot be distrained any more than a net in a man's hand, or a horse on which a man is riding (t). At common law, it seems that wearing apparel, though taken ofl" for natural repose onl}', is liable to distress, but that clothes actually in wear are exempt (w). (e) Goods ill tJie Custody of the Law. Goods in the Goods in the custody of the law are not distrainable for rent ; for Lawcanm.t^be ^*^ ^\*>»1<1 ^^6 repugnant that it should be lawful to take goods out of taken uinler a the custody of the law (.r). Therefore cattle or goods already taken damage feasant, or by the sherifl' under an execution, attachment or extent, cannot be distrained for rent whilst in such custody {y), 'Wearin;. Apparel (m) Crosier v. Towkiiison, 2 Ld. Ken. 439. (o) Fuivkcs V. Joyce, 2 Vein. 129 ; 3 Lev. 260 ; 2 Wnis. Saund. 290, n. (7). {2}) Smith L. & T. 202 (2nd ed.)~. {q) Co, Lit. 47 a ; Storey v. Its/jinson, 6 T. II. 138 : 3 R. R. 137; Field v. Adams, 12 A. & E. 649. (»•) Bunch V. Kenniivjton, 1 Q. B. 679. (.«) Field V. Adams, VI A. & E. 649. {I) Read's case, Cro. Eliz. 594. (») Bissett V. Caldicell, 1 Peake, 50 ; 3 R. R. 648 ; Baynes v. tlmith, 1 Esji. 206. For exemption up to 5L value, see sub-sect. (f), post. (.>;) Co. Lit. 47 a ; Gilb. Distr. 44 ; Rex V. Cotton, Parker, 120 ; Eaton v. Southby, Willes, 131 ; Bulleu, 84. (?/) Peacock v. Purvis, 2 Bred. & B. 362 ; 23 R. R. 465 ; Wright v. Dewcs, 1 A. & E. 641 ; Wharton v. Naylor, 12 Q. B. 673 ; 6 D. & L. 136. Sect. 9. — Exemptions from Distress (Goods in Custody of Law). 477 though if the sheriff relinquish possession, they may be distrained (z), Ch.XI. Sec.9. so that if the sheriff sell, and the vendee allow the goods to remain Exemptions ,1 • /> ii ■\ ^ ,■ .1 IT from Distress on the premises tor more than a reasonable time, they may be dis- [Goods in Cus- trained {a). But by the Landlord and Tenant Act, 1709, 8 Ann. i<>(h/ of Law). c. 14 [c. 18 in the Statutes Revised], s. 1, no goods taken on Satisfaction of any lands leased for life, years, at Avill, or otherwise, shall be talcen Execution in execution, unless the iiarty at icliosc suit execution issued, before ^le^itor. removal of the goods, pay to the landlord the arrears of rent, if not ""' ^' ^^' exceeding one year's rent ; and if more, then the amount of one year's rent, due at the time of the execution (b). There are similar enactments, with variations, in the Act relating to the County Courts (c), and the Court of Admiralty ((/)• If the sale of goods under an execution be fraudulent, as where a Fraudulent fictitious bill of sale is made, and the goods remain on the premises, u",.\ „\'fi:" '*' ' ~ i ' li,\ecutious they may be distrained for rent (e). And where the execution was ^^iH "ot pie- irregular, as where a sheriff's officer executed a writ of fieri facias tress. b}' going to the house and informing the debtor he came to levy on his goods, and laying his hand on a table, said, " I take this table," and then locked up the warrant in the table-drawer, took the key and went away, without leaving any person in possession — and after the writ was returnable the landlord distrained ; it was held, that it was a lawful distress (/). The goods may be distrained if the execution has been waived {g). Where a sheriff's officer, being in possession of a tenant's effects under an outlawiy, made a distress on them for rent, and on the request of the landlord sold the goods distrained, and afterwards the outlawry was reversed, the officer was held liable to pay the produce of the goods to the landlord, for they were not in custodia legis, the judgment being mere waste paj)er (h). Goods seized b}' a messenger under a bankruptcy have been held Messenger in not to be privileged as being in the custody of the law (0. '^ '^^ '^' "" In Sutton V. Bees, a receiver in a legatees' suit advertised furniture Receiver. in a leasehold house for sale. The superior landlord claimed rent, but took no other steps, and the furniture was sold. It was held, that the landlord had no lien on the proceeds of the sale, but must come in with the other creditors, and it was said that he should have distrained, first obtaining leave of the court so to do (A). (c) Bladrsv. Arundalc, 1 M. & S. 711 ; ic) Smith v. llusscU, 3 Taunt. 400. 14 R. R. 55.^.. (/■) Blades v. Arundair, 1 .M. & S. 711 : (a) Peacock v. Pariis, 2 Broil. & B. 14 R. R. .'.55. 362 ; 23 R. R. 4G5 ; Uavis, In re ; Pollen (g) Seven v. Mihil, 1 Ld. Ken. 370. Trustees, Ex 'parte, 55 L. J., Q. B. 217 ; (h) St. John's College, Oxford v. Murcott, 54 L. T. 304 ; 34 W. R. 442— Bank. 7 T. R. 259. {h) See post, Sect. 15 (a). (t) Briggs v. Sowry, 8 M. & W. 729 ; (c) Ccmuty Courts Act, 1888, s. 160, Newton v. Scott, 9 M. & W. 434; 10 Id. post, Sect. 15 (b). 471 ; Phillips v. Shervill, 6 Q. B. 944. {d) 24 Vict. c. 10, s. 16 ; post, Sect. {k) In re Sutton and Sutton v. Pecs, 32 15 (c). L. J., Ch. 437 ; 9 Jur., X. 8. 456. 478 Chap. XI. — Distress for Rent. Ch.XI. Sec.9. Exemptions from Distress {Goods in Ciis- todij of Line). Ill Cases of Extents. ' Growing Corn seized and sold under a Fi. (a. 14&15 Vict, c. 25, s. 2. Crops sold under Fi. fa. liable, so long as on the Farm, to Dis- tress for Rent due after Sale An immediate extent against a Crown debtor tested after a distress taken for rent justh' due to the landlord with notice of the tenant being the Crown debtor, and appraisement of the goods and chattels, but before sale, prevails against the distress (/) : so where a man was outlawed and an extent issued thereupon, and his goods were seized, although the landlord distrained three daj'S before the extent, it was held that he was not entitled to an}' part of the rent due, under the Landlord and Tenant Act, 1709, 8 Ann. c. 18 {m). Where an officer entered under an extent, and improperly continued on the premises for a longer period than he ought, the court would not permit the rent accruing subsequently to the seizure to be paid out of the proceeds ; but left the landlord to his action against either the tenant for use and occupation, or the officer for wrongfully continuing on the premises (»), The landlord of premises on which goods have been seized under an extent in aid is not entitled, under the Landlord and Tenant Act, 1709, to call on the sheriff to pay a year's rent due before the teste of the writ {o). Formerly, where a tenant's growing corn was seized and sold under a fi. fa. pursuant to *2 W. \ ]M. c. 5, s. 3 (jO, and the vendee ])ermitte(l it to remain till it was rii)e, and then cut it, the landlord could not distrain on it for rent before the expiration of a reasonable time for the vendee to remove and carry it away ; such corn whilst in the possession of the sheritf's vendee, being considered as in tiie custod}' of the law {([). So the landlord could not distrain for rent on any corn, hay, straw or other agricultural produce, sold by the sheriff under an execution, subject to a special agreement with the purchaser for him to use and consume the same on the demised premises according to the terms of the lease or agreement, or the custom of the country (/")• Now, by tlu' Liindlord and Tenant Act, 1851, 14 & 15 ^'ict. c. 25, s. '2, " in case all or any part of the growing crops of the tenant of any farm or lands shall l)e seizeisfress crops by any such slierm or other oiiicer. In consequence of this '{Goods in Cus- enactment, which was passed to reverse the law of Wharton v. ^'%^/_j^««0^ Xai/lor{s), the tenant's crops can only be sold under an execution for their value iiiiitKS the rent to which they may become liable, and the costs of a distress ; but the landlord may afterwards abstain from distraining, and so in etlect benetit the purchaser pro tanto at the tenant's expense ; after which he may sue the tenant for such rent, or distrain upon liis other goods for the amount. (f) Clothes, Bedding and Tools up to £5 value. The Law of Distress Amendment Act, 1888, 51 & 52 Vict. c. 21, Exemption s. 4, exempts " Any goods of the tenant or his famil}^ which would ""1888 *or be protected from seizure in execution under s. 96 of the County Clothes, Bed- Courts Act, 1846, 9 & 10 Vict. c. 95, or any enactment amending or ^^ '"• ' ' . . Proviso. substituted for the same," with the proviso however "that this enactment shall not extend to any case where the lease, term or interest of the tenant has expired and where possession of the premises has been demanded and where the distress is made not earlier than seven days after such demand." The County Courts Consolidation Act, 1888, 51 iK: 52 Vict. c. 43, which repeals the County Court Act, 1846, with other prior County Court Acts, b}" s. 147 re-enacts s. 96 of that Act as follows : — Every baiUff or officer executing any process of execution issuing out of the court against the goods and chattels of any person may by virtue . thereof seize and take any of the goods and chattels of such person, excepting the wearing apparel and bedding of such person or his family, and the tools and implements of his trade, to the value of five pounds (t), which shall to that extent be protected from such seizure. The clothes, &c., exemi)t under s. 4 of the Act of 1888 may, by Eestoration s. 4 of the Law of Distress Amendment Act, 1895, 58 & 59 Vict. Bediin^m- c. 24, be directed to be restored by order of a court of summary Tools, jurisdiction, which if they have been sold may by the same section direct " that such sum as the court may determine to be the value thereof shall be paid to the complainant by the person who levied the distress or directed it to be levied." It has been doubted in the Metropolitan Police Courts whether Bedding. the bedstead, i,lc., is included in the term bedding, which does not include it either in the dictionary or in the upholsterer's sense. On the whole it is submitted that the term ought to be construed in the restricted sense, but the point is a very doubtful one. (s) WliartoH V. Naijlor, 12 Q. B. 673. I'or all the exce})ted goods together. {t) This it is conceived means five pounds 480 Chap. XI. — Distress for Rent. Ch.XI.Sec.9. Exemptions from iJistrcss. Lodgers' Goods Pro- tection Act, 1871. Lodger niny serve Declaia- tioii that Tenant does not own Goods, and may jiay Rent to suix'- rior Landlord. Inventory. Declaration inoperative against subse- queiitDistress. TlnaiiUs v. Wildi'iKj. (g) Tlie Goods of Lodgers. At common law, as we have seen, the goods of third persons are liable to be distrained for rent, subject to the exceptions in the case of goods delivered to a person in the way of his trade, and other cases. An important statutory exception has been made in favour of lodgers by the Lodgers' Goods Protection Act, 1871, 34 & 35 Yict. c. 79. By this act, which does not extend to Scotland {t), after reciting that " lodgers are subjected to great loss and injustice by the exercise of the powers possessed by the superior landlord to levy a distress on their furniture, goods and chattels, for arrears of rent due to such superior landlord by his. immediate lessee or tenant," it is enacted (sect. 1) that — If any superior landlord shall levy or authorize to be levied a distress on any furniture, goods, or chattels of any lodger for arrears of rent due to such superior landlord by his immediate tenant, such lodger may serve such superior landlord, or the bailiff or other person employed by him to levy such distress, with a declaration in writing (?<) made by such lodger, setting forth that such immediate tenant has no right of property or beneficial interest in the furniture, goods, or chattels so distrained or threatened to be distrained upon, and that such furniture, goods, or chattels are the property or in the lawful possession of such lodger ; and also setting forth whether any and what rent is due and for what period from such lodger to his immediate landlord ; and such lodger may pay to the superior landlord, or the bailiff or other person employed l)y him as aforesaid, the rent, if any, so due as last aforesaid, or so much thereof as shall be sufficient to discharge the claim of such superior landlord {v). And to such declaration shall be annexed a correct inventory, subscribed by the lodger, of the furniture, goods, and chattels referred to in the declaration ; and if any lodger shall make or subscribe such declaration and inventory, knowing the same or either of them to be untrue in any material particular, he shall be deemed guilty of a misdemeanor (.'■). A declaration uiuler this section is no protection unless it has been made alter the distress has been levied or authorized or threatened, and it is inoperative against a distress subsecjuently levied which has not been authorized or threatened before the declaration is nnule. So it was held by the Court of Appeal in Tlucaites v. JJ'ilding (y), on the very reasonable ground — though the decision may seem rather hard upon lodgers — that the conditions of the statute must be rigidly (0 See sect, i of the Act. (u) See Form of Declaration, Aiipen- dix ])., Xo. 12. ((■) ]'>y sect. 3, "any jiayment made by any lodger imrsnaiit to the first section of this act .shall be deemed a valid ])aynient of any rent due from him to his immediate landlord.' (.>•) And therefore, no punishment being mentioned in the Statute, liable on con- viction to fine oi- imjirisonnient without hard labour or both, in the discretion of the Court, and also to reijuirenient t lind sureties. See Russ. on Crimes p. 66. (>/) Thimites V. JFihlmcj. 12 (?. h. D. 4 ; 53 L. J., Q. 15. 1 ; 49 L. T. 396 : 32 W. R. 80, C. A., affirming 11 Q. B. D. 421; o2 L. J.. O. B. 734 ; 49 L. T. 201. Sect. 9. — Exemptions from Distress (Goods of Lodgers). 481 complied with by the lodger, in order to deprive the landlord of his Ch.XI. Sec.9. reined}" at common law. Exemptions from Distress By sect. 2 : — {Goods of If any superior landlord, or any bailiff or other person employed by - ^ '•^^^^ '' him, after being served with the before-mentioned declaration and inven- If Distress tory, and after the lodger shall have paid or tendered to such superior f;'°?^^y^*^ .. landlord, bailiff, or other person, the rent, if any, Avhich by the last pre- may order ceding section such lodger is authorized to pay, shall levy or proceed with Goods to be a distress on the furniture, goods, or chattels of the lodger, such superior I'cstored to landlord, bailiif, or other person shall be deemed guilty of an illegal distress, ^ and the lodger may apply to a justice of the peace for an order for the restoration to him of such goods ; and such application shall be heard before a stipendiary magistrate, or before two justices in places where there is no stipendiary magistrate, and such magistrate or justices shall inquire into the truth of such declaration and inventory, and shall make such order for the recovery of the goods or otherwise as to him or them may seem just, and the superior landlord shall also be liable to an action at Landlord also law at the s\iit of the lodger, in Avhich action the truth of the declaration liable to and inventory may likewise be inquired into. It is clear that " lodger " iu this act cannot mean " sub-tenant." Who is a On the other hand, every lodger is to some extent a " tenant, ' and a " ^°'^>^'^^- person occupying by far the greater part of a house under a contract Henson. in writing was held to be a "lodger " within the act in PhiUi2)s v. Henson (z), where the only rooms retained b}' the mesne landlord were " a housekeeper's room on the basement and two or three empty attics and a stable." Nor is it necessary that the mesne landlord should even reside on the jiremises ; it is enough if lie retain by himself or an agent such control and dominion over them as the master of a house usually has (a). The question whether the party claiming under the act is a "lodger" or not ought not to be left to the juiy (b) in an action for illegal distress ; though it is a question for determination by justices upon the hearing of an aj^plication for an order under the statute (e). The lodger must sleep and reside on the j)remises, and a person The Lodger occupying the premises in daytime onlv for the purpose of his busi- the^preiuises. ness is not a " lodger " within the statute (r/). If the landlord sell before the five days within which by the statute A Lodger may of William and Mary [post, Sect. 10 (g)] the tenant has the power i^efore five ° to replevy, the lodger has a right of action against him, and this ^^J^- although the declaration under the statute may not have been served till after sale (e). (;) Phillijjs V. Henson, 3 C. P. D. 26 ; 7 ; 45 L. T. 426; 30 W. R. 115— C. A. ; 47 L. J., C. P. 273; 26 W. R. 214, per NessY. Ste2}hcHson, 9 Q. B. D. 245. Grove and Lindley, JJ. ; tlie latter learned (fi) lb. judge is reported as observing that "pro- (c) Ness v. Stephenson, supra, note («). bably the act would not apply to an under- {d) Reaicoody. Bone, 13 Q. B. D. 179; tenant who has the exclusive possession of 51 L. T. 125. the whole house." (e) Sharp v. Foivle, 12 Q. B. D. 385 ; (a) Morton v. Palmer, 51 L. J., Q. B. L.T. 31 482 Chap. XI. — Distress for Eent. Ch.XI.Sec. 9, Excniplions from I)it<(ress {Lodgers). Declaration, Railway I^koII- ing Stock, maikecl with Owner's Name and not being Property of Tenant, exempt from Distress, Restoration by Order of Justices, Tenant's In- terest is not protected. ,\ ppeal to Quarter Sessions. The declaration need not state that no rent is owing from the lodger to his immediate landlord, though such be the case, nor even that the person b}- whom it is made is a lodger (/). (//) Raihvay RoUinrf Stock. Upon a principle similar to that of the Lodgers' Goods Protection Act, 1871, railwa}^ rolling stock is protected from distress, in cases where it is not the actual propert}' of the tenant, by the Railway Ilolling Stock Protection Act, 1872 (35 & 36 Vict. c. 50). By sect. 3 of this act : — Rolling stock (r/) being in a work (A) shall not be liable to distress for rent (?) payable by a tenant (k) of the work, if such rolling stock is not the actual property of such tenant, and has upon it a distinguishing metal plate affixed to a conspiciious part thereof, or a distinguishing brand or other mark conspicuously impressed or made thereon, sutticieutly indicating the actual owner thereof. By sect. 4, where any such rolling stock is distrained, a court of summary jurisdiction (/) may make against the landlord such summary order for restoration of the rolling stock, or for payment of the real value thereof, and as to costs, as to the court seems just. B}' sect. 5, the act does not extend to protect from distress the interest which any tenant may have in any rolling stock otherwise protected under the act ; and, in case of disagreement between the landlord and the parties claiming such rolling stock as to the mode of disposing of such interest, the same is to be settled by the court of summary jurisdiction. By sect. 6, as amended by the Summary Jurisdiction Acts, 1879 and 1884, any party who thinks himstdf aggrieved by any order or adjudication of a court of summary jurisdiction under the act, or by dismissal of his complaint by any such court, nuiy appeal there- from to C^)uarter Sessions subject to the conditions and regulations prescribed by s. 31 of the Summary Jurisdiction Act, 1879. .^.3 L. J., Q, K 309 ; 50 L, T. 758 ; 32 W, R. 539. Here the damages had been agreed upon as 17/., but the action would be for irregular distress, and proof of special damage would be necessary. See Hodgcrsv. Parker, 18 C. B. 11 '2. (f) Harris, Ex parte, 16 Q. U. D. 130 ; 55 L. J., M, C. 24 ; 53 L. T, (555 ; 34 W. R. 132-C. A. ((/) By sect, 2, this "includes wagons, trucks, carriages of all kinds, and loco- motive engines used on railways. " (/() By sect, 2, this "includes any col- liery, quarry, mine, manufactory, warc- lioiise, wharf, jner, or jetty in or on which is any railway siding," the effect of which is to include a shed connected by a siding with a railway ; Eiu>ton Estate L'omi)any V. Western Waggon Company, 54 L, T. 735, {i) By sect, 2, this "includes royalty or other reservation la the nature of rent," (k) By sect. 2, this "includes a lessee, sub-lessee, or other person having an inte- rest in a work under a lease or agreement, or by use .and occupation, or being other- wise liable to pay rent in respect of a work, " (/) By sect, 2, this " means any jus- tices of the jieace, metropolitan jiolice magistrate, .stipendiary magistrate, slierifl', shcrilf substitute, or other magistrate or officer, by whatever name called, who is cap.able of exercising jurisdiction in sum- mary proceedings for the recovery of penalties." Sect. 9. — Exemptions from Distress (Railway Rolling Stock). 483 By sect. 7, "no order or conviction of a court of summary juris- Ch.XI. Sec.9. •diction under this act shall be quashed for want of form, or be Exemptions removed by certiorari or otherwise (at the instance either of the (jtaiiwal/ JioU- Crown or of any private party) into an}' superior court." '"^ ''^tock). Exclusion of . Certiorari. (i) Hired Machiiiei'i/ and Brccdinri Stock. If the Agricultural Holdings Act applies (y»), there is an absolute exemption of hired machinery and breeding stock. For it is pro- vided by the second paragraph of s. 45 of that act that " agricultural or other machinery Avliich is the bona fide propert}' of a person other than the tenant, and is on the premises of the tenant under a bona fide agreement with him for the hire or use thereof in the con- duct of his business, and live stock of all kinds which is the bona fide property of a person other than the tenant, and is on the premises of the tenant solely for breeding purposes, shall not be distrained for rent in arrear." These words will, it is conceived, protect such machinery as is, in accordance with a common practice, on the pre- mises under an agreement that until it be paid for, it shall be and remain the property of the person letting it out (n) . (j) Cattle, Beasts of the Plough, and Sheep. By 51 Hen. 3, stat. 4, no man " shall be distrained by his beasts 51 Hen. 3, that gain his land, nor by his sheep, while there is another sufficient ^*^*" ^' distress to be found (except for damage feasant) " (o). This is in feyedVondi- . affirmance of the common law(;;). Cart colts and young steers, tionally. not broken in or used for harness or the plough, are not privileged from distress as beasts which gain the land {q). Beasts of the plough may be distrained if the only other subject of distress is growing crops, because the landlord is entitled to distrain whatever is immediately available, and to hrld the growing crops for the residue (/■). If a landlord distrains, inter alia, his tenant's cattle and beasts of Reasonable the plough for rent in arrear, and it appear after the sale that there beStha^no would have been sufficient to satisfy the arrears and expenses with- '^\^^^^ ^uffi- •out taking or selling such cattle, such distress is not thereby proved to be an illegal distress, contrary to the above statute, if there were reasonable grounds for supposing (as from the appraisement of proper and competent persons at the time of the making) that with- out the taking of the beasts of the plough there would not have been (wi) Sect. 5, p. 463, ante. D. & L. 188. (n) See form, Lely and Pearce-Edg- {'p) '2, Inst. 132. -cumbe's Ag. Hold. Act, p. 299. [q) Keen v. Pried, 4 H. & IST. 236. {o) Davies v. Astmi, 1 C. B. 746 ; 3 (?•) Picjyottv. Births, 1 M. & W. 441. 31—2 484 Chap. XI. — Distress for Eent. Ch.XI. Sec. 9. Exemptions {of Beasts and , Sheep where other sufficient Distress) . Sheep of a Sub-tenant privileged. KceiiY. Priest. When Cattle may be dis- trained. Defects of Fences. a sufficient distress (s) ; and where beasts of the plough are lawfully taken on a distress, the sale of them need not be postponed to that of other goods (s) . The sheep of a sub-tenant are privileged from distress for rent if there are other goods on the premises sufficient to satisfy the rent, whether belonging to such sub-tenant or to an}" other person {t).. The owner of sheep seized and sold under a distress for rent, which was unlawful because there were other goods on the premises belong- ing to him which might have been distrained for the same rent, is entitled to recover from the distrainer, not merely nominal damages,, but the full value of the sheep so seized {t). Cattle which are ujjon land by Avay of agisting ma}' be distrained' for rent («) ; and where a stranger put in his beasts to graze for a night, by the consent of the lessor and licence of the lessee, it was held, that the lessor might distrain them for rent due out of those lands which he consented that the beasts should graze on ; because such consent was no waiver of his right to distrain, unless it had been expressly agreed to ; and being but a parol agreement, it could not alter the original contract between the lessor and lessee, from which the power to distrain arises (.r). It seems to have been held in one case, that cattle which are being driven to a market or fair,, and are put into pasture on the way for one night, are privileged from distress {y). If the landlord come to distrain, and the tenant, seeing him, drive cattle oft" 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 them- selves before he observes them, he cannot distrain them after- wards \z) ; though if the distrainer once enter the premises to distrain the cattle, it seems that the}- cannot afterwards be driven oft" to- prevent a distress (a). AVhere beasts escape, and come upon land by the negligence or default of their owner, and are trespassers there, they may be dis- trained immediately by the landlord for rent in arrear (h) ; but where they come upon land by the insufficiency of fences, which the tenant or his landlord ought to repair, the lessor cannot distrain such beasts till the}' have been levant and couchant ; that is, they must be lying down and rising up on the premises for a night and a day without pursuit made by the owner of them, — and after actual notice has been given to the owner that they are there, and he has neglected to (s) Jenner \\ Yolland, 2 Chit. R. 167 ; 6 Price, 5 ; 20 R. R. 608. (0 Keen V. Pried, 4 H. & N. 236 ; 28 L. J., Ex. 1.57. («) Roll. Abr. 669. (x) Fawkes v. Joyce, 3 Lev. 260 ; 2 Vent. 50 ; 2 Wms. Saund. 290, n. 7. (?/) Tate V. Glccd, 2 AVnis. Saund. 290 (a),. in notes to Poole v. Longucville. {z) Co. Lit. 161 a. \a) Clement v. Milncr, 3 Esp. 95. {h) Gilb. Dist. 45 ; Co. Lit. 47 a, note (301) ; Kemp v. Crawcs, 2 Lutw. 1577 ; 1 Ld. Ray m. 168 ; BuUen, 103. Sect. 9. — Exemptions from Distress (Beas^ts, Sheep). 485 remove them (c). Where cattle passing along a public highway stray Ch.xi. Sec.9. into an adjoining field through defect of fences, the owner of the Exemptions , . ■, 1 , ® . , . , , . .,,("/ ^«<'^i^ and ■cattle is bound to remove them within a reasonable time, until the sheep wiiere expiration of which they cannot lawfully be distrained for damage othrr sufficient feasant (f/). What is a reasonable time is a question for the jury with reference to all the surrounding circumstances {d) . In Singleton v. Williamson, the plaintift" was owner of a close A., Similr.tonv. and the defendant was owner of closes B. and C. Between A. and ^^*^^^««'^0'i. Distress B. there was a fence which, as against the owner of A., the owner of damage B. was bound to keep in repair, but which he had neglected to do. feasant. Between B. and C. there was a sufficient fence. The cattle of the jjlaintitf strayed from A. through a gap into B., and there breaking •down the fence between B. and C, were distrained by the defendant .as, he alleged, damage feasant in C, It was held, in trover to recover the cattle, that the defendant had no right to distrain the •cattle, as the first wrongful act had been committed by himself in leaving the fence between B. and A. insufficiently repaired, the natural result of which wrongful act was the damage complained of ; and that the juiy were properly directed that the state of the fence between B. and C, and whether or not the cattle were damage feasant, was immaterial {c). It may be added here that by the Distress for Bent Act, 1737, Distress on 11 Geo. 2, c. 19, s. 8, eveiy landlord may take and seize, as a dis- ujlon^ eecmg tress for arrears of rent, any cattle or stock of his tenant feeding or C,'ommou. •depasturing upon any common appendant or appurtenant, or any ways belonging to any part of the premises demised ; and that by ■56 Geo. 8, c. 50, s. 6, cattle feeding on cr£)ps sold under the provisions of that act cannot be distrained (/). (k) The Tools of Trade. The tools and implements of a man's trade are absolutely privi- Tools of leged from distress for rent, if they be in actual use at the time (V/). If they be not in actual use, they are oul}' privileged, in case there be sufficient other distress upon the premises Qi). But the distramer is a trespasser ab initio only as to those particular goods which were not distrainable ; the distress may be valid as to the residue, and a satisfaction pro tanto of the rent {i). Ledgers, daj'-books, vouchers and other business papers seem not to be distrainable. In one case (c) Poole V. LongueviUc, 2 "Wms. Saund. 1 Smith, L. C. ; Gorton v. Falkner, 4 T. R. 289 ; Smith L. & T. 204 (2nd ed.). 565 ; 2 K. R. 463. id) Goodwin v. C%cvclcy, 4 H. & N. {h) Nargctt v. Nias, 1 E. & E, 439 ; 28 ^31 ; 28 L. J., Ex. 298. L. J., Q. B. 143. (e) 8inqleton v. Williamson; 7 H. & X. (i) Harvey v. Pocock, 11 M. & W. 740 ; 410 ; 31 L. J., Ex. 17. Davics v. Aston, 1 C. B. 746 ; 3 D, & L. (/) See this act. post, Appendix A. 188. (g) Sinivsoii v. Hartopp, Willesj 512 ; Trade. 486 Chap. XI. — Distress for Eent. Ch.XI. Sec.9. the plaintiff recovered 40s. damages in trespass against the landlord Exemptions ^nd his broker for an illegal seizure thereof under a distress ik). In from Dintress . ^ ° c -r t r-x ^ {Tools of commentmg upon the dictum oi Lord Coke, that the books oi a ^^'"''^^)- scholar would he privileged from distress, Mr. Smith expresses an opinion that this exemption would include a lawyer's books also (0» A threshing machine, which is not a fixture, is liable to a distress, unless in actual use at the time, or there be other sufficient dis- tress {m). If a man has two mill-stones, and one only is in use, and the other lies b}' not used, it may be distrained for rent(«). Books. Threshing Machine. Conditional Exemption of Agisted Stock. Limit on Amount recoverable. Power of Owner to Kedeeni. (1) Agisted Stock. If the Agricultural Holdings Act applies (o), agisted stock, that is stock taken in by the tenant to be fed, in some parts of the country called "tacks," is conditionally exempt from distress under some circumstances. For it is provided by s. 45 of that act that "Where live stock [i.e. by s. 61 ' any animal capable of being distrained ' {p)J belonging to another person has been taken in b}^ the tenant at a fair price, such stock shall not be distrained where there is other sufficient distress to be found." These words do not include the case of animals who come upon a holding pursuant to an agreement whereby tlie tenant [for 21.] allowed the owner of the animals " the exclusive right to feed the grass on the land for 4 weeks" (q). As to the " fair price " it has been held not to be necessarv that there should be a price in mone}', and that an agreement " milk for meat" as it is termed, i.e. that the tenant should keep for his own use and by way of payment, the milk of agisted cows, is within the section (r). The section goes on to provide that if the live stock be distrained by reason of other sufficient distress not being found, "there shall not be recovered by such distress a sum exceeding the amount of the price so agreed to be paid for the feeding, or if any part of such price has been paid, exceeding the amount remaining unpaid. "^ Moreover the owner of the stock, who at common law would be subject to the common loss of third persons, has a special statutory privilege, it being further enacted that " it shall be lawful for him tO' redeem the stock at any time before it is sold (s) b}" paying to the distrainer a sum equal to such price as aforesaid," and that "any payment so made to the distrainer shall be m full discharge as I {k) Gauntlett v. King, 3 C. B., N. S. 59. {I) Smith L. & T. 205 (2nd ed.) ; and see Bac. Abr. " Distress," B. (?7i) Fcnton v. Logaii, 9 Bing. 676. As to absolute exemption, if on agricultural holding, see sub-s. (i), ante, 483. {n) Year Book, Easter T. 14 H. 8, pi. 6, cited in iSimi)son v. Hartopp, supra {(j). (o) Sect. 5, ante, 463. (2)) See sub-s. (b), ante, 473. (q) Masters v. Green, 20 Q. B. D. 807 ; 59 L. T. 476 ; 36 W. K. 521. (?•) London ), only one year's arrears of rent are recoverable by distress. For, by s. 44 of that act — Distress on Agricultural Holding. — One Year's Arrears onlj' recoverable. Deferring of Collection by * ' ordinary course of dealing." It shall not be lawful for any landlord entitled to the rent of any holding to which this act applies to distrain for rent which became due in respect of such holding more than one year before the making of such disti'ess. But in order to provide for the continuance without loss to the landlord, of the very common practice of deferring the collec- tion of rents from the day at which they became due to a day later by a quarter or half-year than such day, this important proviso is added: — "Where it appears that according to the ordinary course of dealing between the landlord and tenant of a holding, the payment of the rent of such hold- ing has been allowed to be deferred until the exjjiration of a quarter of a year or half a year after the date at which such rent legally became due, then for the 2)urpose of this section the rent of such holding shall be deemed to- have become due at the expiration of such quarter or half-year as aforesaid,, as the case may be, and not at the date at which it legally became due. The words '"'for the purpose of this section" are important as showing that the proviso does not turn the deferred date into a legal date absolute!}', but merely for the purpose of fixing the time for a (x) Grant v. EUis, 9 JI. & AV. 113 ; Archbold v. Scully, 9 H. L. 360. See criticism of the decisions in the Jurist Newspaper, 9 Jur., N. S., Pt. II., p. 315. {y) Owen v. De Bea avoir, 1(3 M. k, W. 547 ; 5 E.Kch. 166. {z] Humfrcy v. Gc.ry, 7 C. B. 567. [a) See Grant v. Ellis, 9 M. & W. 113 ; Z>('c d. Davcyw Oxenliam, 7 M. k W. 131. (6) Ante, Sect. 5. Sect. 10. — Proceedings in Distress (what Arrears Eecoyerable). 491 distress, and it has been expressh' held in Bull, Ex parte, Bcic,In re {c), C'h.XI.Sec.io. that the Luidlord may distrain for rent legally due but not yet payable mstrlsr(wliat accordino- to the ordinary course of dealing, and also for rent legally Arrears due more than a year, but payable less than a year previously, '— * ^1 * Pull Vr although the total amount distrained for exceeds one year's rent. f^^ "With regard to the exact periods of quarters and half-years, it seems that if a longer period than these shall have been allowed, the landlord will be able to count from the end of the quarter or half-year forming part of such longer period, but that if a shorter period shall have been allowed, such shorter period cannot be taken into account at all. (c) Where Distress must he made. By the Statute of Marlebridge (52 Hen. 3, c. 15), " it shall be 52 Hen. 3, lawful for no man from henceforth for any manner of cause to take °' ''' distresses out of Ins fee, nor in the king's highway, nor in the common street, but onl}' to the king and his officers having special authority to do the same." As a general rule, the distress must be made on the land from Distress must whence the rent issues, and not elsewhere (d), except in the case of outTf which the king (or queen regnant), who may distrain on any of his tenants' Rent issues. lands wherever situate (iiig. 243 ; (2>) Toiiilinson v. Consolidated Credit d: Inkop V. Morchurcli, 2 F. & F. 501. But Mortyuqe Association, 24 Q. B. \). 135 ; see Cllham v. Arkmright, 16 L. T. 88, 62 L. T. 162 ; 38 W. R. 118— C. A. where it was ruled by Patteson, J. {Parry {q) Welch, v. Myers, 4 Camp. 368 ; 19 V. Duncan being cited), that tlie landlord R. R. vii, viii. need not prove that a sufficient distress (;•) Williams v. Roberts, 7 Exch. 618. was not leit on the jnoinises. 502 Chap. XI. — Distress for Rent. Ch.XT.Sec.10. Froeeedings in Distress ( Goods fraudulently removed). Presence of Constable. ]\Ietropolitan Police District, 11 Geo. 2, c. 19, ss. 3—6. Forfeiture of double Value. Double Value, where Goods worth less than 50/., may be reco- vered before Justices. 11 Geo. 2, c. 19, s. 4. The presence of a constable is required and must be stated in the defence where doors or gates are broken open(.s). The presence of a special constable appointed for the occasion is sufficient (i). In the Metropolitan Police District, b}' virtue of the Metropolitan Police Act, 1839, 2 & 3 Vict. c. 47, s. 67, any constable may stop and detain, until due inquiry can be made, all carts and carriages which he shall find employed in removing the furniture of any house or lodging between the hours of eight in the evening and six in the following morning, or whenever the constable shall have good grounds for believing that such removal is made for the jDurpose of evading the payment of rent. It is also provided, by further sections of the same statute, that both the tenant fraudulently removing goods, and also all persons assisting him, shall forfeit to the landlord double the value of the goods distrained, to be recovered before justices if the goods be worth less than 50?., or by an action of debt if they be worth more. By the Distress for Rent Act, 1737, 11 Geo. 2, c. 19, s. 3, "to deter tenants (») from such fraudulently conveying away their goods and chattels, and others from icilfully aiding or assisting therein or concealing the same," it is enacted, " that if any tenant or lessee (u) shall fraudulently remove and convey away his or her goods or chattels as aforesaid, or if any person or persons shall wilfully and hiowingly aid or assist any such tenant or lessee in such fraudulent conveying away or carrying off of any part of his or her goods or chattels, or in concealing the same, all and every person or persons so offending shall forfeit and pay to the landlord or landlords, lessor or lessors, from whose estates such goods and chattels were fraudulentl}^ carried off as aforesaid, double the value of the goods by him, her or them respectively carried off or concealed as aforesaid, to be recovered by action of debt." Sect. 4 j)rovides, " that where the goods and chattels so fraudulently carried off or concealed shall not exceed the value of 501., it shall and ma}' be lawful for the landlord or landlords, from whose estates such goods or chattels were removed, his, her or their bailiff, servant or agent, in his, her or their behalf, to exhibit a complaint in writing against such offender or offenders, before two or more justices of the peace of the same county, riding or division of such count}', residing near the place whence such goods and chattels were removed, or near the place where the same were found, not being interested in the lands or tenements whence such goods were removed ; who may summon the parties concerned, examine the fact and all proper witnesses uj)on oath, or if any such (s) liich V. IVooUqi, 7 Biug- 651. (f) Cartivright v. Smith, 1 JIoo. & R. 284. (m) As to tenant who has given a hill of sale, see Tomlinson's case, p. 501, supra. Sect. 10. — Proceedings in Distress (Fraudulent Ee:moval). 503 witness be one of the people called Quakers, upon affirmation required Ch.XI.Sec.10. bv law : and in a summary way determine whether such person or P>;oceeciimjs in J ' . Distress {Goods persons be guilty of the offence with which he or they are charged ; fraudulently/ and to inquire in like manner of the value of the goods and chattels ^^^>^°^^ )• by him, her or them respectively so fraudulently carried off or con- cealed as aforesaid : and upon full proof of the offence, by order, under their hands and seals, the said justices may and shall adjudge the offender or offenders to pay double the value of the said goods and chattels to such landlord or landlords, his, her or their bailiff, servant or agent, at such time as such justices shall appoint ; and, in case the offender or offenders, having notice of such order, shall refuse or neglect so to do, may and shall, by warrant under their nands and seals, levy the same by distress and sale of the goods and chattels of the offender or offenders ; and for want of such distress may commit the offender or offenders to the house of correction, there to be kept to hard labour, tvithout hail or mainprize, for the space of six months, unless the money so ordered to he paid as aforesaid shall he sooner satisfied." The words printed in italics are repealed by the Summary Jurisdiction Act, 1884 (47 & 48 Vict. c. 43), in consequence of the provision of a sliding scale of terms of imprisonment in default of distress (which scale does not go beyond three months) by s. 5 of the Summary Jurisdiction Act, 1879, 42 & 43 Vict. c. 49. Sects. 5 and 6 Appeal to provide, "that it shall be lawful for any person, who thinks himself sea jssions. aggrieved by such order of the said two justices, to appeal to the Sects. 5, 6. next general or quarter sessions;" and that "where the party appealing shall enter into a recognizance with one or two sufficient surety or sureties in double the sum so ordered to be paid, with condition to apj^ear at such general or quarter sessions, the order of the said two justices shall not be executed against him in the meantime." The third section of the above act is so far penal, that it is Decisious on sect. 3 of incumbent, m an action by the landlord against a tbird party, for ]i Geo. 2, assisting the tenant in such fraudulent removal, to bring the case by ^•. }P' P?'"" o ' o . viding tor strict i^roof within the words of the first section (x) ; and the land- Recovery of lord must not only prove that the defendant assisted the tenant in ^ Action. such fraudulent removal, but also that he was priv}^ to the fraudulent intent of the tenant (y). But a creditor, with the assent of his debtor, may take possession of the goods of the latter, and remove them from the premises for the j^urpose of satisfying a bona fide debt, without incurring the penalty inflicted by the third section, although the creditor takes possession knowing the debtor to be in distressed circumstances, and under an apprehension that the {x) Ante, 499. Fieg. v. JJ. of Eadnor, 9 DowL 90. (y) Brooke v. ly'oakes, 8 B. & C. 537 ; 504 Chap. XI. — Distress for Rent. Ch.XI.Sec.10. Proceedings in Distress {Goods fraudulently removed). Bill of Sale. Holder of Bill of Sale. Ko IiiteiTOga- tories. Decisions on Sect. 4, pro- viding Reco- very before Justices. landlord will distrain {z) ; and the holder of a bill of sale over the tenant's goods is not, as we have seen, within the act, but may safely remove the goods {a). In an action on tliat section against the tenant for fraudulently removing his goods from off the premises to avoid a distress for rent, it is not necessary to show an actual participation in the act, if the removal was with his privity {h) ; and in such a case it seems that it is immaterial whether the removal took place by night or with any particular concealment. In an action upon the statute against a defendant for aiding and assisting a tenant in removing and concealing his cattle, to hinder the landlord from distraining, the acts and orders of the tenant are admissible evidence of his own i'raud, and of knowledge on the part of the defendant, if by other evidence he is proved to have contributed to the facility of it. Circumstances of suspicion may be laid before the jury to prove such a fraudulent co-operation as the legislature contemplated, and it is not necessary, to support such an action, that it should be proved that a distress was in progress, or about to be put in execution, or even contemplated ; it is enough if the rent be shown to be in arrear, and that the goods have been removed afterwards (c). It has been held that the action is a penal one, so that the l)laintiff ma}' not administer interrogatories to the defendant {d). The fourth section, which gives a summary remed}'^ before two magistrates, provided the value of the goods shall not exceed 50Z., does not take away the jurisdiction of the High Court in cases where the goods are of less than that value ( ). Corn loose or in the straw, hay, &c., which is distrained b}^ virtue Corn may not of 2 W. & M. sess. 1, c. 5 (g), cannot be removed from the premises, ^" i'e»io^ed. but must be impounded where found (;■). And growing corn, &c., distrained under the Distress for Rent Act, 1737, 11 Geo. 2, c. 19, s. 8, must, after it is cut, be placed in a proper place on the premises, and cannot be removed except in default of there being such proper place (s). (h) Xotice of Distress and Tunc for Replevy. The distress, being considered merely as a pledge, could not at 2 W. & M. the common law be sold {t). But by 2 W. & M. sess. 1, c. 5, s. 2, *^' ''' '* '^• 1 11111T--I/' Tin Notice and, wnere any goods shall be distrained tor rent reserved and due Sale of upon any demise, lease or contract whatsoever, and the tenant or ^^sti'^^^- owner of the goods so distrained shall not, within five (») days next after such distress taken, and notice thereof (with the cause of such taking) left at the chief mansion-house or other most notorious (A) Washhorn v. BIacl\ 11 East, 405; 259; BuUen, 147. 10 R. R. 538, n. ; Tennant v. Field, 8 (?) Ante, 470. E. & B. 336. (r) Sect. 3 ; Bulleu, 141, note (2). [l) JFond'i V. Durmnt, 16 M. & AV. 149. (s) Ante, 470. [m) Castleman v. Ilids, 1 C. & M. 266. [t) Ante, 443. [n) Thomas v. Harries, 1 M. & G. 695. («) Or fifteen days, if the tenant or (o) Cox V. Painter, 7 C. & P. 767. owner so require, in writing, infra. [l)) Smith V. Ashforth, 29 L. J., Ex. 510 Chap. XI. — Distress for Eent. Ch.XI.Sec.10. Froceeclings in Distress {Notice of). Appraise- ment. Notice to tenant of place where distress lodged. Amendment of Act of William and Mary by the Act of 1888. Extension of Time to Replevy from Five Days to Fifteen. What is a suf- ficient Notice of Distress. place on the premises, replevy the same, in such case, the person distraining " shall and may " cause the goods so distrai)ied to he appraised (x) hy two appraisers, and after such appraisement " shall and may" sell the same for the best price that can be gotten for them, towards satisfaction of the rent and charges of the distress, appraisement and sale ; leaving the overplus (if any) for the owner's use. This statute also required the appraiser to be sworn, b}' a sheriff, under-sheriff or constable, on the spot, but the Parish Constables Act, 1872 (35 & 36 Vict. c. 92), s. 13, has repealed that part of it. The Distress for Rent Act, 1737, 11 Geo. 2, c. 19, s. 9, requires that the tenants have notice of the place where the distress is lodged when it is removed. The Law of Distress Amendment Act, 1888, 51 & 52 Vict. c. 21, has by ss. 5 & 6 amended the act of William and Mar}^ in two very important points, in both points, however, still leaving it to the tenant to decide whether the amendments shall take effect or not. By s. 5 appraisement is disjjensed with imless the tenant or owner of the goods require it in writing, and by s. 6 the period of 5 days within which to replevy is extended to 15 days if the tenant or oivner require it in writing. We will deal with ai)praisement and sale presently. The extension of the time to replevy is thus provided for by sect. 6 ; — The period of five days provided in the act of William and Mary, chapter five, within which the tenant or owner of goods and chattels distrained may replevy the same, shall be extended to a period of not more than 15 da}s if the tenant or such owner make a request in writing- in that behalf to the landlord or other person levying the distress, and also give security for any additional cost that may be occasioned by such extension of time : provided that the landlord or person levying the distress may, at the written request, or Avith the written consent of the tenant, or such owner as aforesaid, sell the goods and chattels distrained or part of them, at any time before the expiration of such extended period as aforesaid. The notice of distress must be in writing (//), and its object being to enable the distrainer to sell under 2 W. & M. sess. 1, c. 5, s. 2, it ought to inform the tenant or the person whose effects are taken what goods are distrained, and the amount of rent in arrear {z). A notice stating that the distrainer had distrained the goods, chattels and things mentioned in the inventor^' thereunder written, — which inventory Avas " one clock and weights, kc, &c., and any other goods and effects that may he found in and about the said {x) A]ipraisL'ment is unnecessary, unless the tenant or owner reipure it in writing, infra. {y) Wilson v. Ni) Harrison v. Parnj, 7 Price, 690 ; 21 R. R. 781. ■ [q) Fisher v. Algar, 2 C. & P. 374. (?■) Oiven V. Leigh, 3 B. & A. 470 22 R. R. 455 ; Protidlove v. Ticemlou; 1 Cr. & U. 326. (.s) Lucns V. Tarlcton, 3 H. & X. 116 ; PiOdgers v. Parker, 18 C. B. 112. (t) 2 W. & M. sess. 1, c. 5, s. 2 ; ante, 510 ; Allen v. Flirker, 10 A. & E. 640 ; Pis/iop V. Bryant, 6 C. & P. 484. {u) Rod en \. Eyton, 6 C. H. 427; Clark V. Hoi ford, 2 C. & K. 540 ; Child v. Chamberlain, 6 C. & P. 213. They nee.I not be sworn ; ante, 510. Sect. 10. — Proceedings in Distress (Appraisement and Sale). 513 "be appraised b}' the party making it (.r), as being interested in Ch.XI.Sec.10. the business. A landlord, who was a broker, having distrained Proceedings in 1 1 . 1 Distress {Ap- goods lor rent, was sworn one oi the appraisers, and together with pmisemc?it another broker valued them to the plaintiff, who became the pur- ^'"^ ^^^^'^- chaser according to such valuation ; it was held that the sale was irregular (y). So the landlord could not sell the goods to him- self (-?). It was held, however, that if the tenant, to save expense, requested that appraisers might not be called in, and in consequence the broker who made the seizure valued the goods, the tenant could not in an action complain of that which was done as an irregularity (a) . But the Law of Distress Amendment Act, 1888, 51 & 52 Vict. c. 21, Abolition of generalising an enactment applied to agricultural holdings only by except where the Agricultural Holdings Act, 1883, abolishes appraisement except ifFiied by ^ , . . ... . . the Tenant 111 in cases where it is expressly required in writing by the tenant or Writing, owner of the goods, providing b}^ s. 5 that — So much of an act passed in the second year of the reign of their Law of Majesties King William the Third and Mary, chapter five, as requires ■V^'^J.^^j^^^eut appraisement before sale of goods distrained is hereby repealed, except in Act, 1888, y. 5. cases where the tenant or owner of the goods and chattels by writing- requires such appraisement to be made, and the landlord or other person levying a distress may, except as aforesaid, sell the goods and chattels distrained without causing them to be previously appraised. By the same section, for the purposes of sale the goods "shall," Sale in at the request in writing of the tenant or owner, be removed " at Kooiu. the expense of the party requesting removal to a public auction room, or to some other fit and proper place specified in such request, iind be there sold," not necessarily, it will be observed, by auction. Appraisers, if an appraisement be required, will usuall}' write their appraisement upon the inventory (b). By the Stamp Act, 1891 (54 & 55 Vict. c. 39), s. 38, and Sched. tit. " Appraisement or Valuation," the following stamp duties are made payable on appraisements and valuations : — Where the amount of the appraisement or valua tion does not exceed 51. . . Exceeds 51. and does not exceed 10/. „ 10/. „ 20/. „ 20/. „ 30/. „ 30/. „ 40/. „ 40/. „ 50/. ,, 50/. „ 100/. stamp on Ap- praisement. - £ s. d. . 3 . 6 . 1 . 1 6 . 2 . 2 6 . 5 (x) IVestwood V. Comic, 1 Staik. E. 172. lij) Lyon V. Wcldon, 2 Bing. 334. (z) Kincj V. Encjland, 4 V>. & S. 782 ; L.T, 33 L. J., Q. B. 145 ; 9 L.T. 645. (a) Bishop v. Bryant, 6 0. & P. 484. {b) See Form, Appendix D., No. 3. 33 514 Chap. XI. — Distress foe Eent. Cii.XI.Sec.10. Proceedings in Distress {Ap- praisement and Sale). Exceeds lOOL and does not exceed 200L 200/. „ 500/. 500/ £ s. d. 10 15 10 Mode of Sell- in^ the Goods distrained. Landlord may not buy. May not sell liay too cheap, for consump- tion on premises. "Where goods are distrained, and at the end of the five days appraised but not sold, the act of appraisement does not take away the tenant's right to replev}' them (c). Until they are duly sold, the property in them remains vested in the tenant or other owner {d). A bailiff who seizes goods under a distress warrant, if his authority to sell on behalf of the landlord is afterwards withdrawn, has no right to go on and sell for his expenses (e). Before any sale takes i)lace, the county court registrar's office should be searched to see if the goods have been replevied ; if that is not the case, and the rent and charges remain unpaid at the end of the five days allowed by law, the goods should be sold for the best price which can be got for them. If the distress is for less than 20/., a person selling the goods by auction need not have an auctioneer's licence (/). It seems that there is no order required b}'' law to be observed on the sale of goods distrained, — as that beasts of the plough should be postponed to otlier goods {(j). The landlord cannot sell the goods to himself or take them at the appraised price {h). It is not unusual for the appraisers to buy them at their own valuation. A distress sold at the appraised value was taken, when appraisers were sworn, to have been sold at the best price, since the law relied upon the appraisers having been sworn (i) ; but it was held, that upon a count for not selling goods distrained at the best prices, the plaintiff might go into evidence to show that the goods were allowed to stand in the rain, and that they were iuiproperly allotted {k). Where a tenant is under a covenant not to carry hay and straw off the premises, a distraining landlord is not entitled to sell it too cheap, on the condition that the purchaser shall consume it on the premises (/). If goods on the tenant's lands be sold under a distress with a condition, to which the tenant is a l^arty, that they may remain on the land up to a certain day, and that the buyer may enter and take the goods, the tenant cannot (c) Jacob V. King, 5 Taunt. 451 ; 15 R. R. 550. {d) Moore v. P^jrkc, 11 East, 52, 54 ; King v. England, supra, note {z). (rj Harding v. Hall, 14 W. R. 646 ; 14 L. T., N. S. 410. (/) Auctioneers Act, 1845, Chitty's Statutes, tit. "Auction," 8 & 9 Vict. c. ]5, s. 5. ig) Jenner x. Tolland, 6 Price, 5 : 2 Chit. R. 167 ; 20 R. R. 60S. (h) King v. England, supra, note (z). (i) Walter v. liiunhall, 1 Ld. Ravm. 53 ; 1 Salk. 247 ; Bullen, 160. (/■) Poyntcr v. Buckley, 5 C. & P. 512. (/) Pudgiray v. Ld. Stafford, 6 Exch. 404 ; overruling Abbey v. Petch, 8 M. & "W. 419 ; and followed in Hawkins v. Walrond, 1 C. P. 480 : 45 L. J., C. P. 772 ; 35 L. T. 210 ; 24 W. R. 824 : see also Frusher v. Lee. 10 U. k W, 709 ; Rodcn V. Eijton, 6 C. B. 427. Sect. 10. — Proceedings in Distress (Appraisement and Sale). 515 revoke this licence to enter on the land (/»)• But such a licence is Ch.XI.Sec.10. not imi)lied by law, though the goods may have remained on the Proceedings in land with the tenant's assent (w). The whole produce of the sale jn-aisemeitt may, if necessary, be applied in or towards satisfaction of the rent "'"^ '^"^^^- and expenses of the distress ; but if the produce be more than sufficient for that purpose, the residue should be left in the hands of the sheriff, under-sheriff, or constable — usually the latter — for the use of the owner of the goods distrained (o). And if the goods have been removed for sale, the surplus thereof remaining unsold (if any) should be returned to the premises from which they were taken (jj). (j) Siuylus Proceeds and Unsold Goods. By 2 W. & M. sess. 1, c. 5, s. 2, landlords are authorized, after 2 W. & M. giving five days' notice of the distress (q), to cause the goods and ' ' ' * . . 1 Overplus of chattels distramed to be appraised and sold (r), " towards satisfaction Distiess for of the rent for which the said goods and chattels shall be distrained, p^M to ^^ and of the charges of such distress, appraisement and sale, leaving Tenant. the overplus {if any) in the hands of the said sheriff, under-sheriff or constable, for the owner's use." If the overplus be not so left, and the tenant or owner of the goods thereby sustains actual damage (but not otherwise), a special action on the case is maintainable (s), but not an action for money had and received, to recover the amount of such overplus {t). The " overplus " means what remains after payment of the rent, and the reasonable charges of the distress, which may be questioned in such special action {u). Whether the amount deducted for rent can be questioned in such action, is not clear. Although the tenant or owner of the goods has received the balance from the broker, it is a question for the jur}^ whether it was accepted in full satisfaction : and if not, then wdiether it was sufficient to satisfy the real balance (^O* And although the distress be insuffi- No action for cient, no action can be maintained for the rent until a sale has been had (?/), after which the landlord may sue for the balance {z). AVhere PhUpott.' goods distrained for rent in arrear have been removed to a convenient place for sale, and sufficient sold to satisfy the distress, including the expenses, the proper course is for the broker to leave the sur- plus money with the sheriff, under-sheriff or constable (generally (m) Wood V. Manlaj, 11 A. & E. 34 ; L. J., Ex. .303 ; Evans v. JFright, 2 H. & Wood V. Leadbitter, 13 M. & W. 83S. N. 527 ; 27 L. J., Ex. 50 ; 2 Chit. PI. 544 (n) Williams v. Morris, 8 M. & W. (7th ed.). 488. (w) Lyon. v. Tomhies, 1 M. & W. 603 ; (o) Infra (j). Knight v. Egcrton, 7 Exch. 407 (5th issue, ip) Evans v. Wright, 2 H. & N. 527 ; and verdict thereon). 27 L. J., Ex. 50. (a-) Lyon v. Totnkics, supra. (?) Ante, 509 (h). (y) Lchain v. Fhilpott, L. R., 10 Ex. (r) Ante, 512 (i). 242 ; 44 L. J., Ex. 225 ; 33 L. T. 98 ; 23 (s) Lyon v. Tomkies, 1 M. & W. 603. AV. R. 876. (0 Yates V. Eastwood, 6 Exch. 805 ; 20 (;:) Philpott v. Lehain, 35 L. T. 855. 33—2 516 Chap. XI. — Distress foe Rent, Cn.XI.SEc.lo. the constable), and return the surplus goods to the premises from Froceedings in whence he took them (a). Distress {Sur- plus Proceeds). Distress for Kent Rules. 57 Geo. 3, c. 93, s. 1. Fixed Limit to Costs where Distress for 20^. or less. Statutory Schedule where Distress for 201. or less. Treble damages. Copy of Brokei-'s Charges for Party Dis- trained on. PkUle IS under Act of 1888. Sect. 11. — Costs of Distresses. The Distress for Rent Rules, 1888, or other Distress for Rent Rules for the time being, regulate generally' the costs of a distress ; but the Distress (Costs) Act, 1817, 57 Geo. 3, c. 93, which regulated the costs where the distress is for 20/. or less, is still unrepealed (except as to its preamble and formal words of enactment, which are repealed by the Statute Law Revision (No. 2) Act, 1890). By the Distress (Costs) Act, 1817, 57 Geo. 3, c. 93, after reciting that divers persons acting as brokers and distraining, had of late made excessive charges to the great oppression of poor tenants and others, and that it was expedient to check such practices, it is enacted that no person making any distress for rent, not exceeding 201., shall receive out of the produce of the goods distrained upon and sold, or from the tenant distrained on, or from the landlord, or from an}' other person whatsoever, any other costs and charges than those set forth in the schedule to the act, and by s. 2 any person aggrieved by extortion of gi'eater amount than that prescribed by the act may api)ly to any one justice of the jjcace for the division where such distress shall have been made, or in any manner proceeded in, for redress, wlio may adjudge treble the amount of the monies so unlawfully taken to be paid b}' the oflender to the comjilaining party. By s. 4 the landlord is onh' liable in case he has personally levied the distress. The statute does not appl}' to a case of distress taken for more than 20/., though made upon goods which arc appraised at and sold for less than 20/. {h). By sect. G, " every broker or other person who shall make and lev}' aiii/ distress ichatsocver, shall give a copy of his charges, and of all the costs and charges of any distress whatsoever, signed by him, to the person or persons on whose goods and chattels any distress shall be levied, although the amount of the rent demanded shall exceed the sum of twenty pounds." This section, which, it Avill have been seen, is of general application, does not apply where the goods have not been sold (c), and where it does apply, the land- lord, not personally interfering in the distress, is not liable for the omission of the broker to give a copy of his charges ((/). («) Evans v. If'rigM, 2 H. & X. 527 ; 27 L. J., Ex. 50. (b) Child V. Chamhcrlain, 5 B. & A. 1049; 6C. & P. 213. (c) Hills V. Street, 5 Bing. 39. (d) Hurt V. Leach, 1 J\I. '& W. 560. iiy Kule 18 of the Distress for Rent Rules, "every bailiff .shall, on the request Sect. 11. — Cost of Distresses. 517 The statute is still unrepealed. If possible it must be read with the Ch.XI.Sec.11. more extensive section, sect. 8, of the Law of Distress Amendment Act, P^'oceedimjs in Distress 1888, and the Distress for Rent Rules made thereunder, replacing the {Costs of). 49th section of the Agricultural Holdings Act, 1883, which section Scales under ju-ovided a scale of charges (e) — applicable onh- to distresses for more Distress for 111 lient Kules. than 20/. — now replaced by the scales under the rules. There are now two scales, one where the sum demanded and due exceeds 20Z. and the other where it does not exceed 20Z. Rule 17 provides that Taxation. in case of any dift'erence as to charges, the charges shall be taxed by the registrar of the district in which the distress is levied, who may make such order as he thinks fit as to the costs of taxation, and by Scale I. there is an allowance for "reasonable fees, charges, and Charges where expenses (subject to Rule 17) where distress is withdrawn or where drawr^ml ^ no sale takes place, and for negotiations between landlord and tenant f?^" Negotia- respecting the distress." These words, which are taken from the superseded but onl}' impliedl}' repealed schedule to the Agricultural Holdings Act, give the landlord a right to charge which he did not possess before. It is conceived that this right does not arise until a distress has been actually put in, and that negotiations upon the question whether a distress shall be put in or not cannot be charged for under them. The 49th section of the Agricultural Holdings Act above mentioned Bailiff's right provided that no person "making" a distress for more than 20L ^ ercen age. 1 1 1 1 • 1 T . Phillips V. should be entitled to recover more than the sums mentioned m the Rccs. schedule. The landlord, and not the bailiff, was held, in Coode v. Johns, entitled to the j)ercentage of 3 per cent, authorized by that act up to 50/., the landlord being the person "making" the distress within the meaning of the section, the percentage being said to be given to the landlord as compensation for his expenses in emplojdng a solicitor (/) ; but in PhUlips v. llccs (g) this decision was overruled by the Court of Appeal, and the law there laid down to the eftect that the bailiff and not the landlord is entitled to the percentage, though in terms applying only to the repealed 49th section of the Agricultural Holdings Act, seems also to apply to Rule 15 of the Distress for Rent Rules (h). This Rule provides that no person shall be entitled to Percentages charges for " levying a distress " other than those specified in the Siftres^Tct^ table set out in the Appendix to the Rules, i.e., under Scale I. : — and Rules. of the tenant, produce to him a copy of the which made its report in 1882. table " of fees under those Piules. So long (/) Coode v. Johns, 17 Q. B. D. 714; as this Rule is in force, it is submitted 55 L. J., Q. B. 475 ; 55 L. T. 290 ; 35 that it impliedly repeals and replaces s. 6 W. R. 47. of 57 Geo. 3, e. 93. [g) Phillips v. Rees, 24 Q. B. D. 17 ; (c) This scale was almost identical with 59 L. J., Q. B. 1 ; 61 L. T. 713 ; 38 that proposed by Mr. Waugh, M.P. for W. R. 53— C. A. Cockermoiith, a solicitor of forty years' (h) And see per Lopes, L.J., in Phillips experience, to the Select Committee of the v. llees, supra. House of Commons on the law of distres.s, 518 Chap. XI. — Distress for Eent. Ch.xi.Sec.h. Proceedings in Distress {Costs of). Penalty for overcharges. " For levying distress. Three -pev cent, on any sum exceeding 20Z. and not exceeding 50Z. Two and a half per cent, on any sum exceeding 50Z. and not exceeding 200L, and one per cent, on any additional sum." And under Scale II. : — " For levying distress, 3s." Under these scales the landlord, unless he personally levies, gets nothing. The Act of 1888, by s. 7, renders a certificated bailiff liable to have his certificate cancelled for extortion, and expressly preserves his liability to " any other penalty or proceeding." It is submitted that where the distress is for 20/. or less, the treble amounts under s. 2 of the Distress (Costs) Act, 1817, 57 Geo. 3, c. 93, become payable by the offender (/), but the point is doubtful. Practical Directions. Sect. 12. — I'ractical iJircctioiis as to the Mode of Distraining. The most proper manner of making a distress is for the person distraining, whether the landlord himself or his bailiff (accompanied by a man to be left in possession), to get into tlie house, or upon any part of the premises out of which the rent issues, and there select and seize articles, not inirilecjcd from distress (k), of sufficient value to raise, on a broker's sale, the amount for which the distress is made, and the expenses of the distress; or, if necessary, to seize the whole, by taking hohl of some piece of furniture or other article and saying, *' I distrain this in the name of all tlie goods on the premises " (/), or to that effect. There could be no harm in adding, " except those privileged from distress." There need not be an actual seizure of the propert}' distrained on (ni), any expression of intention to distrain being sufficient (/O. Thus, where a landlord to whom rent was in arrear, on hearing his tenant and a stranger disputing about removing a lathe, entered the house, and laying his hands on the machine, said, " I will not suffer this, or any of the things, to go off the ]u-emises till my rent is paid," the distress was held to be suffi- ciently made (o). "Where a landlord's agent went upon the tenant's premises, walked round them without touching anything, and gave the usual notice of distress as to certain of the goods (of much more than sufficient value), and then went away without leaving any one in possession, it was held that this was a sufficient seizure to enable (i) The editor has here adopted a siig- pcstiou in Olilhani and Foster's Law of Distress (2nd cd. ), ai p. 257. {k) Ante, Sect. 8, p. 468. (l) Dodd V. Morgan, 6 Mod. 215 ; Drajjcr v. Thowpson, 4 G. & P. 84 ; Bullen, 131. {m) Smith L. & T. 224 (2nd ed.). [n) Cramer v. Mott, L. K., 5 Q. K 357 ; 39 L. J., Q. R 172 ; 22 L. T. 857 ; 18 W. R. 947. (o) Wood V. Xiovi, 5 Binj,'. 10 ; 6 L. J., C. P. 198 ; 2 M. & P. 27 ; 30 R. R. 528. Sect. 12. — Peoceedings in Distress (Practical Directions). 519 the tenant to sue the hmcUortl for an excessive distress {})). Where CH.XI.SEc.t2. fi broker went to the tenant's house and pressed for payment of rent ^^'o«^(^tngs in Distress alleged to he due, and of a sum for the expense of the levy, hut {Practical touched nothing and made no inventory, and the tenant then 'paid -P^'^^^'^"^)- the rent and expenses under protest, on which the broker withdrew : it was held in an action against the landlord for an excessive distress, that he could not say there had been no actual distress (g). But a declaration by a landlord as against the grantee of a bill of sale that the landlord means not to allow the goods to be removed until his rent be paid, and that he is prepared to use force to prevent their removal, has been held not to be a conversion by the landlord (r). In making the seizure care must be taken not to distrain on Things privi- anything absolutely privileged from distress, ex. gr. things delivered ^e^taken ^ *^ to the tenant in the way of his trade (s), or if the holding be agri- Nor an exces- oultural, machiner}' and breeding stock on hire (0, nor anything sive Quantity. privileged suh modo, i.e. provided there be other sufficient distress on the premises, ex. gr. the tools of a man's trade (u), or, if the holding be agricultural, agisted cattle (.r). Nor must the goods distrained be excessive in quantity or value, i.e. much beyond what is necessary to satisfy the actual arrears of rent, and the costs of the distress (?/). The value of the goods should be estimated at what they will probably produce at a sale, and not according to their value to the tenant (z). A broker's appraisement is not evidence against the tenant as to the value (a), but the broker who made it should be called. If there be no other distress on the premises, the taking of one entire thing, though of considerably greater value than the rent, is not excessive (/>). An action lies for an excessive distress of growing crops, the probable produce of which is capable of being estimated at the time of the seizure (c) : provided the tenant thereby sustains actual loss and damage, but not other- wise (d). The distress should not extend to the whole crop, where part would suffice. (^j) Sicanny. Earl of Falmouth, 8 B. &C. Maden, 2 C. & K. 517 ; Smith v. Ashforth, 456. 29 L. J., Ex. 259. {q) Hutchins v. Scott, 2 JI. & ^V. 809. (2) Wells v. Moody, 7 C. & V. 59. (r) England v. Cowlct/, L. K., 8 Ex. 126 ; («) Smith v. Ashford, 29 L. J., Ex. 259. 42 L. J. , Ex. 80 ; 28 L. T. 67, diss. Martin, B. {b) Avcnell v. C'roker, Moo. & M. 172 ; (•t) For a list of things privileged abso- Sells v. Houre, 1 Bing. 401 ; 1 C. & P. 28 ; lately and sub modo respectively, see explained 11 i^xch. 876; Roden v. Ei/ton, ante, 468. 6 C B. 427 ; Tancrcd v. Lcyla.nd (in (0 Ante, Sect. 5. error), 16 Q. B. 667, Maule, J, (u) See note (s). (c) Pigcjott v. Births, 1 M. & W. 441. (yj) Ante, Sect. 5. [d] I'roudlovex. Tivemloio, 1 Cr. & Mee. iy) 52 Hen. 3, c. 4 (Statute of Marie- 326 ; Ouxn v. Legh, 3 B. & A. 470 ; 22 ■bridge); IFells v. Moody, 7 C. & P. 59; II. R. Af As soon as possible after the goods liave been distrained the}' should be impounded {in) ; especially where there is any dispute between the parties as to the amount of arrears really due. Until such impounding the tenant may tender Avhat he admits to be due, with expenses, and if such tender be sufficient it will be illegal to proceed (e) Cro'irdcr v. Self, 2 Moo. & R. 190 ; Tailored v. Lcyland (iu enor), 16 Q. B. 6G9 ; Glynn v. Thomas, 11 Excli. 870; 25 L. J., Ex. 125; French v. Phillips, 1 H. k N. 564 ; 26 L. J., Ex. 82 ; Loring V. Warhurton, E., B. & E. 507 ; 28 L. J., Q. B. 31 ; overruling Taylor v. Hcnnikcr, 12 A. & E. 488. (/") Stevenson v. Newnham (in error), 13 C. B. 285, 297 ; 22 L. J., C. P. 110. ((/) Glynn v. 1 homas, 11 Exch. 873, Erie, J. ; Tancrcdv. Leyland, 16 Q. B. 669. (h) Bitllcr's case, 1 Leon. 50. (i) Givinnct v. Phillips, 3 T. R. 643 ; Crowthcr v. Rairtshottom, 7 T. R. 6.^8 ; 4 R. R. 540 ; Gainbrcll v. Earl of Falmouth,. 4 A. & E. 73 ; I'reiit v. Hunt, 9 Exch. 14. (k) Sells V. ffoare, 1 Bing. 401 ; 8 Moo. 453 ; Pai/lis v. Ush^r, 4 M. & P. 790. (/) WUloughby v. Backhouse, 2 B. & C. 821 ; 2 L. J., K. B. 174 ; 26 R. W. 566 ; Sells V. Hoare, supra. (»i) Ante, 505. Sect. 12. — Proceedings in Distress (Practical Directions). 521 further with the distress (»)• But when the goods are impounded Ch.XI.Sec.12. they are in the custody of the hiw, and a tender is too late to make '^'"^^fj"^ *'* the subsequent proceedings illegal (o). Nevertheless, if a tender be (Practical made after the impounding, but within the five days allowed the iiec^^^ons)^ tenant to replevy, and the landlord afterwards proceeds to sell the distress, the tenant may maintain a special action on the case founded on the equity of the statute 2 W. & M. sess. 1, c. 5, s. 2 ( ;?). To avoid this the landlord should abstain from selling (after such a tender), and leave the tenant to obtain his goods by a replevin (which is the only remedy), in which the tenant will have to pay all that is really due with the costs of and incident to the distress, replevy and action. If no tender be made, the landlord should not sell for more than the actual arrears of rent, with expenses, notwithstanding ho may have claimed more in his notice of distress. He now has the opportunity of correcting any mistake previously made on that point, although perhaps he may be liable to some damages for having taken an excessive quantit}' of goods as a distress. After a seizure has been made, as above pointed out, it is proper Inventorj'. for the landlord or his bailiff to make an inventory (q) of as many goods as are judged sufficient to cover the rent distrained for, and also the charges of the distress. Although an inventory need not be as exact and minute as a specification, yet it ought to mention the goods taken, in such a manner that the tenant, and others, may know what is intended to be distrained. The following inventory, "one clock and weights, Sec, and any other goods and effects that may be found in and about the said premises, to pay the said rent and expenses of this distress," was considered by the court objectionable, and was held sufficient only on the ground that the distress was in fact meant to include all the goods on the premises (r). A notice of distress stating that the landlord had distrained the several goods, chattels, and effects specified in the schedule : which schedule, after enumerating certain goods, concluded thus : — " and all other goods, chattels and effects on the said premises, that may he required in order to satisfy the above rent, together with all necessary expenses : " was held to be too vague and uncertain to justify the sale of goods of a stranger which he had deposited on the premises (s). (n) Vertioe v. Beasley, 1 Moo. & R. 21 ; 8 E. & B. 336. Branscomh v. Bridges. 1 B. & C. 145 ; 25 (p) Johnson v. Uphmn, 2 E. & E. 250 ; R. R. 335 ; Hollccnd v. Bird, 10 Bing. 15 ; 28 L. J., Q. B. 252 ; overruling Ellis v. Ladd V. Thomas, 12 A. & E. 117 ; Bvcms Taylor, 8 M. & W. 415. V. Elliott, 5 A. & E. 142. (?) See Fonu, Appendix D., No. 3. (o) Firth \. Purvis, 5 T. R. 432; 2 R. R. (r) IVakcrnan v. Lindsey, 14 Q. B. 625. 637 ; Thomas v. Harries, 1 M. & G. 695 ; (s) Kerby v. Harding, 6 Ex. 234 ; 20 Ladd V. Thomas. 12 A. & E. 117 ; Ellis v. L. J., Ex. 162. Taylor, 8 M. & W. 415 ; Tennant v. Field, 522 Chap. XI. — Distress for Eent. Ch.XI.Sec.12, Froceedings in Distress [Practiced Directions). Notice of Distress, &c. Removal of Goods. After the inveiitoiy is taken it is necessary to give a notice in writing (t) to the tenant of the fact of the distress having been made and the time when the rent and charges must be paid or the goods replevied. This is usually done by writing such notice at the bottom of the inventor}' (»)• A true copy of the inventor}^ and notice must then be served personally upon the tenant or the owner of the goods, or left at the house, or if there be no house on the premises, upon the most notorious place. There should in all cases be a witness present to prove the regularity of the proceedings. AVhen the distress has been thus made, it is the safest way to remove the goods immediately, and in the notice to acquaint the tenant where they are removed to. The place to which the}-^ are so removed must be mentioned in the notice (x), and any written request of the tenant under the Law of Distress Amendment Act, s. 5, ante, p. 513, as to the place of removal must be strictly complied with. In man}' cases, however, the tenant for his own convenience requests the landlord to permit them to remain on the premises, and consents to allow him to retain possession be3'ond the five da3'3 ; and in such cases a written consent should be procured (y), and some person left in possession of the goods upon the premises. No stamp is necessary to such written consent, or to a licer.ce to re-enter and resume possession in consideration of the distress being withdrawn for a time (z). 17 Car. 2, c. s. 4. Second Dis- tress in case Insufficiency on lirst. Sect. 13. — Second Distress. 7, A landlord has a power at common law to make a second distress in case of insufficiency of a first (a) ; and it was enacted by 17 Car. 2, of c. 7, s. 4. — a Procedure Act — that " in all cases where the value of the cattle distrained shall not be found to be of the full value of the arrears distrained for, the party to whom such arrears are due, his executors or administrators, may from time to time distrain again for the residue of the said arrears." This enactment, together with the other sections of the statute, is wholly repealed by the Statute Law Revision and Civil Procedure Act, 1881, 44 Sc 45 Yict. c. 69, but the object of that act was to exj)ressly repeal enactments impliedly repealed alread}', and it is not clear that 17 Car. 2, c. 7, s. 4, has been impliedly repealed. Perhaps the enactment is saved from repeal by sect. 4 (b) of the Act of 1881, which provides that the general (0 Wilson V. Nicjhtiwjah, 8 Q. 15. 1034, ante, 510 ; see tlie Form, Appendix D., No. 4. {u) Se(^ Forms, Appendix D., Nos. 4, 5. {x) 11 Geo. 2, c. ly, s. 9. (y) See Form, Appendix C, Sect. 3. {z) Hill V. Eamm, 5 M. & G. 789 ; Fishwick V. Milncs, 4 Exch. 825 ; Cox v. Bailcij, 6 JI. k G. 193. («) See Bullen on Distress, 111, citing Hulchins v. Chambers, 1 Burr, at p. 589. I Sect. 13. — Proceedings in Distress (Second Distress). 523 repeal shall not affect any principle or rule of law or equity estab- lished or confirmed, or right or privilege acquired by an}' enactment repealed by the Act of 1881. Even, however, if 17 Car. 2, c. 7, s. 4, is completel}' re^jealed, the landlord's common law power of second distress is not extinguished. But a second distress for the same rent cannot be justified where there is enough v/hich might have been taken upon the first distress, if the distrainer had then thought proper ; for it was his folly that he did not take sufficient at first (b) ; and a man who has an entire dut}' (as rent, for example) may not split the entire sum, and distrain for one part of it at one time, and for the other part of it at another time, and so toties quoties for several times ; for that is great oppression (e). The rule that the distress may not be split applies to the very frequent case of a rent-charge issuing out of a large estate let to many tenants. In such a case the grantee of the rent-charge cannot divide the liability to distress for arrears by distraining first upon one tenant for one portion and then upon another for another portion. If he does, the tenant secondl}' distrained upon may recover the distress by replevin ((/) ; so that if the land be let, he must either distrain upon one tenant, or upon none. It is not illegal, however, in cases where many gales of rent are due, to distrain firstly for gales firstly due, and secondly for gales subsequently due, although the distress firstly made was made at a date when the gales secondly distrained for might have been distrained for by the first distress. That a second distress to be illegal musthe for tJic same rod is recognizedby all the authorities (e). An action will lie against a landlord for the goods taken on a second distress, where he might have taken sufficient on the first, or where he had voluntarily abandoned it (/). Where a landlord, having distrained a tenant who had committed an act of bankruptc}-, withdrew the distress in consequence of a creditor of the tenant stating that he was proceeding in bankruptcy against the tenant, and warning the landlord not to sell, it was held, that such notice or warning ought not to have been regarded, and that a second distress was illegal (g). If a man, however, seize for the whole sum that is due to him, and only mistake the value of the goods seized. Ch.XI.Sec.13. Second Distress. Illegality of Second Dis- tress for same rent in case of sufficiency on first. Distress for rent- charge ou one Tenant's holding only. Oiccn V. Wynne. Successive Distresses for successive gales all due at time of first Distress. Action for goods taken on second Distress. (6) Com. Dig. Distress (A. 1) ; Baggc, app., Maichy, resp., 8 Exch. 641 ; Smith L. & T. 191, 192 (2nd ed.). (c) Hutchins v. Chambers, 1 Burr. 589, per Lord JMansfield ; Gambrell v. Earl of Faliaouth, 4 A. & E. 73 ; Lear v. Calde- cott, 4 Q. B. 123. {(l) Owen V. Wynne, 4 E. & B. 579. (e) And see per Brown, J., Moore, 7, pi. 26, cited in Daicson v. C'ropj), 1 C B. 961. The appropriation of the first dis- tress to the first rent will appear from the distress warrant and notice of distress. (/) Smith V. Goodwin, 4 B. & Adol. 413 : Daicson v. C^-opp, 1 C. B. 961 ; 3 D. & L. 225 ; Lear v. Caldecott, 4 Q. B. 123 ; Piggott V. Dirties, 1 M. & W. 441. ((/) Baggc, app., Maivhy, resp., 8 Exch. 641. 524 Chap. XI. — Distkess for Eent. Second Distress. Second Dis- tress in case of Eeplevin. Cri.XI.SEc.l3. which may be of uncertain or imaginary value, as pictures, jewels,, race-horses, &c., there is no reason why he should not afterwards complete his execution by making a further seizure (h). So if he withdraw the distress at the request of the tenant and for his accommodation (/), or is induced to do so b}' a false statement made by the tenant (k). So if he be forcibly prevented by the tenant from selling the goods distrained, or from delivering them to the purchaser, whereby the distress is defeated (/). But the re-entry in such cases does not amount to a second distress ; it is merely a continuance of the original taking, and it should be confined to the goods previously taken and not extend to any others {m). If a plaintiif in replevin be nonsuited, the defendant may again distrain the same goods for rent subsequently accrued, previously to executing his retorno habendo, without waiving his action against the sureties of the bond (//). Where to a cognizance for rent in arrear there was a plea in bar, that the defendant, on a former occasion, made a distress for the same rent, and took goods liable to distress sufficient to discharge the rent in arrear and the costs of the distress, and might thereby have paid the arrears of rent, but neirlected so to do and wrongfullv made a second distress for the same rent ; it was held ill on special demurrer, assigning for cause that the plea did not show that the rent was satisfied by the former distress (o). And where to an avowry by executors, for rent due in the lifetime of their testator, there was a plea in bar that the testator took as a distress for the same rent goods of a sufficient value to satisfy such rents and the costs of taking the distress ; it was held insufficient, as it should have shown that such distress produced a satisfaction of tlie rent (p). Sect. 14. — Iicscite and Pound-Breach. -Wliat Rescue is where the owner, or other person, by force takes away amounts to a ^ tiling distrained from the })erson distraining, after the latter has been actually in possession ; but if he never in fact had possession — as when disturbed in making the distress — it is no rescue {q). It is also called rescous, from rccourser {recuperare) , to take from or recover. It is defined by Lord Coke to be a taking away and (Ji) Hutcliins V. Chambers, 1 ]5urr. 579 ; 1 Wms. Saund. 201, n. 1. {i) See Form of Request, A]>pendix D., No. 6. {k) Woollaston, app., Stafford, resp., 15 C. B. 278. [l) Li'.e V. Cooke, 2 H. & N. 58i ; 3 lu. 203 ; 27 L. J., Ex. 337. (ot) Smith V. Torr, 3 F. & F. 505 ; and see Sect. 4. (n) Hcfford v. Alger, 1 Taunt. 218. (o) Hadd V. Jlavenor, 2 Brod. & B. 062 ; 23 R. R. 528 ; Dawson v. Cropp, 1 C. 15. 961 ; 3 D. & L. 225. (;)) Lhi'jhnm v. Warren, 2 Brod. & B. 36 ; HuUen, -206. (q) BuUen, N. P. 84. Sect. 14. — Rescue and Pound-Breach. 525 setting at liberty against law a distress taken, or a person arrested Ch.XI.SEc.i4. by the process or course of law (r). If cattle distrained go on to Resme ami tlie premises of the owner while henig driven to the pound, and he Breach. refuse to deliver them up upon demand by the distrainer, it is a rescue in law (s) : but where the plaintiff distrained the defendant's cattle damage feasant, and went to apprise the defendant, and during his •absence the cattle escaped for half an hour into the defendant's grounds, from whence the plaintiff on his return drove them to his own yard ; it was held, that the defendant having taken them from thence, it was no rescue (i). Where the landlord employed a sheriff's officer, who took possession under the distress, and then, oil receiving a fi. fa. sold the goods under it, this, though done by the same person, was held to be a rescue and pound-breach (»). The following facts, however, were held insufficient to enable the plaintiff to maintain an action for a pound-breach or rescue. The plaintiff levied a distress for rent in arrear, and impounded the goods upon the premises ; the superior landlord afterwards distrained for rent due to him from the plaintiff: whilst the plaintiff's bailiff was removing the goods, the defendant, a slieriff''s officer, came into the house, and said that he had a fi. fa. against the plaintiff, and that he would not allow the goods to be removed : plaintiff's tenant thereupon ejected plaintiff's bailiff, and brought back the goods which had been removed {x). If the distress be taken without cause, the party may lawfull}' make When a a rescue before it is impounded {y) ; but if it is impounded, he cannot i^e made"^^' justify a breach of the pound to take it out ; because the distress is then in the custody of the law {z) . Whenever the distrainer abandons and quits possession of the distress, the re-taking of it by the tenant or owner is not a rescue (a). So if a distrainer takes the distress out ■of the place where it was originally impounded, for the purpose of making an unlawful use of it, the owner ma}' interfere and take it out of his possession, without rendering himself liable either for a rescue or for pound-breach (b). It is said that by the common law, if a man broke the pound, or Indictment the lock of it, or any part of it, he greatly offended against the peace, or'pomid-^ .and committed a trespass against the king, and to the lord of the Breach, fee, the sheriffs and hundredors in breach of the peace, and to the (r) Co. fit. 160. 23 b ; Keen v. Priest, 4 H. & X. 240, (s) Co. Lit. 161 a. Bramwell, B. ; Bullen, 207. (<) Knoiclcs V. Blake, 5 Bing. 499. (s) Cotsivorlh v. Bettison, 1 Salk. 247 ; (tt) Rcddell V. Stowey, 2 iloo. & W. 358 ; 1 Ld. Raym. 105. Turner v. Ford, 15 M. & W. 212. {a) Bod v. Monger, 6 Uod. 216 ; Bradley, {x) Slory V. Finnis, 6 Exch. 123 ; 2 282. L., M. k V. 198. {b) Smith v. Wright, 6 H. & X. 821 ; (?/) Co. Lit. 47 b, 161 a ; BeviVs case, 30 L. J., Ex. 313. 4 Co. R. 11 b ; Case of Avowry, 9 Co. R. 526 Chap. XL— Distress for Rent. Ch.XI.Sec.14. Mescue and Pound- Breach . 2 W. & M. sess. l,c. 5,s. 4. Recovery of treble Damages in Case of Pound- Breach. Costs. party in delay of justice ; wherefore hue and cr}'- was levied against him as against those who broke the peace (c) ; and the party who distrained might take the goods again wheresoever he found them, and again impound them(<'7). It is doubtful, however, whether pound-breach is an indictable oifence (e). B}' 2 W. & M. sess. 1, c. 5, s. 4, on an}- pound-breach or rescous of goods distrained for rent, the person grieved thereby shall, in a special action ujion the case, recover treble damages and costs against the offender, or against the owner of t*lie goods, if they be afterwards found to come into his use or possession. If a distrainer abuse a distress by working it, the owner may interfere and prevent it, and no action is maintainable against him for pound-breach or rescue (/). "Where goods fraudulently removed and distrained on the premises of a third part}' are rescued by him, it may be a question whether an action in respect of such rescue can be maintained under this section (f/). In an action on this statute it has been held that it is no answer that the rent and demand were tendered after the distress and impounding (//)• Trover is not maintainable by the landlord for goods distrained by him, he liaving no property in them, nor even the constructive possession of them (i). Treble costs as well as treble damages are given by this statute, but treble costs were abolished by the Limitations of Actions and Costs Act, 1842 (" Pollock's Act "), 5 & 6 Vict. c. 97, which substi- tuted " a full and reasonable indemnity as to all costs and charges in and about the action " ik). The Pound-Breach Act, 1843, 6 & 7 Vict. c. 30, does not extend to distress for rent, but applies only to distress of cattle " damage feasant." Note on Dis- tress Damage Feasant. XoTE ON DiSTKESS DAMAGE Feasaxt. — Although the right of distress damage feasant does not arise out of the relation between landlord and tenant, it may be useful to add here a few words respecting that kind of distress, which resembles distress for rent in many of its incidents, but not in all. It is laid down in Bullen on Distress (where the law of the subject is fully discussed (see pp. 227 — 242) ), that a distress damage feasant may be made of any cattle or other things animate or inanimate which arc wrongfully upon a man's land or in his house, incumbering it or otherwise doing damage. This right is founded on the principle of recompense, which justifies a person in retaining that which occasions injury to his property till amends be made by the owner. The thing distrained must be taken in the act {IVormcr v. Biggs, 2 C. & K. 31). There is (c) See Bullen on Distress, p. 210, [d) Co. Litt. 47 b. (c) See Russell on Crimes, i. 560. No mention of the oH'cnce as indictable is made in Archbold's Criminal Pleading or in Stephen's Digest of the Criminal Law ; but in 1893, in Ecg. v. Buttcrficld, at Bedfordshire Epiphany Quarter Sessions, the defendant was indicted lor ]iound- breach, the jury being discharged as not agreeing. ( f ) Smith V. Wright, supra, (g) Harris v. Thirkeld, 20 L. T. 98. [h) Firth V. Purvis, 5 T. R. 432 ; 2 R. R. 637. (/) Turner v. Ford, 15 JI. & W. 212 ; JVilbraham v. Snoio, 2 Saund. 47 a. {k) Pollock's Act is not repealed bj' R. S. C. Ord. LXy. See Huskcr v. Woody 54 L. J., Q. B. 419 ; 33 AV. R. 679. Sect. 14.^ — Eescue and Pound-Breach. 527 tins difference between a distress for rent and .a distress damage feasant, that in the former case a man may distrain any cattle he finds on the premises, but in the other case they must be actually doing damage, and are only distrainable for the damage they are then doing and continuing : for if they have done damage to-day and have gone off, and come again at another time and are doing damage, and ai'e taken for that, and the owner tenders amends for the latter damage, the jiarty cannot justify keeping them for the first damage ( Vaspor \. Edwards, 12 Mod. 658, 660 ; 1 Ld. Raym. 719 ; 1 Salk. 248 ; Co. Lit. 161 a). Each beast taken can be seized and detained for the damage which has actually been done by itself only, and not for the general damage, or any part of it which has been done by the others (Id.). To justify a distress damage feasant it is sufficient,^ however, that the distrainer entered the locus in quo whilst the cattle were in it [Clement v. Milner, 3 Esp. 95) ; but if it appear that the part}^ distraining had not actually-got into the locus in quo before the cattle had got out of it, the justification cannot be supported (Id.). The remedy is not confined to the mere owner of the soil upon which they may be found, but extends to all who may receive injury, such as commoners or other persons entitled to the use or produce of the land merely {Hall v. Harding, 4 Burr. 2132). Where A. demised to B. the milk of twenty-two cows to be provided hy A. and to be fed at A.'s expense on certain closes belonging to A. ; A. covenanting that B. might turn out a mare, and that no other cattle should be fed there ; it Avas held, that the separate herbage and feeding of those closes passed to B., and that B. might distrain other cattle of A. doing damage there {Burt v. Moore, 5 T. R. 329 ; 2 R. R. 611). A tenant holding over after the expiration of his term cannot lawfully distrain the landlord's cattle put upon the premises by way of taking possession {Taunton v. Costar, 7 T. R. 431 ; Butcher v. Butcher, 7 B. & C. 399). No kind of thing which is capable of being damage feasant and not in actual use is exempt from distress for such damage. For damage feasant the party grieved or his agent may distrain in the night, otherwise it may be the beasts will be gone before he can take them (Co. Lit. 142 a). If a sufficient tender be made of damages before the taking, the taking is unlawful ; if after the taking, and before the impounding, then although the taking is lawful, the detainer after the tender is unlaw- ful ; and in either case replevin may be maintained {Evans v. Elliott, 5 A. & E. 142 ; Gulliver v. Cozens, 1 C. B. 788 ; West v. Kihbs, 4 C. B. 172). A distress damage feasant cannot be sold for the damage done {Layton v. Hurry, 8 Q. B. 811). By 6 & 7 Vict. c. 30, power is given to two justices, where cattle are distrained, to convict persons releasing or attempting to release them ; and the justices may award any part of the penalty to the person on whose behalf the distress is made. The justices cannot act in cases of disputed title and other cases. Ch.XI.Sec.14. Kote on Bis- iress Bamage Feasant — con. Sect. 15. — Satisfaction of Arrears of Rent hy Execution Creditor. (a) Execution in High Court. Goods in the custody of tlie law under an execution cannot at common law be distrained for rent (Z). But "for the more easy and effectual recovery of rents reserved on leases for life or lives, term of years, at will, or otherwise," the Landlord and Tenant Act, 1709, 8 Ann. c. 14 [c. 18 in the Statutes Revised], s. 1, enacts that — No goods or chattels whatsoever lying or being in or upon any messuage, lands or tenements Avhich are or shall be leased for life or lives, term of years, at will or otherwise, shall be liable to he taken by virtue of any execution on any pretence whatsoever, unless the party at whose suit the said execution is sued out, shall, before the removal of such goods from off the said premises, by virtue of such execution, or extent, pay to the land- ed) Ante, 476 ; Co. Lit. 47 a ; Wharton v. Naijlor, 12 Q. B, 673 ; 6 D. & L. 136. 8 Ann. c. 14, s. 1. Xo Goods may be taken in Execution till Arrears of Rent (for not more than one Year) be paid. 528 Chap. XI. — Distkess for Kent. Ch.XI.Sec.15. Satisfaction of Arrears hij Execution Creditor. Year's rent by Stat, of Anne. Saving for Crown Debts. Tenancies, 4 weeks' rent on weekly, by Exec. Act, 1844. On Tenancies otherwise less than yearly. Connty Couit Executions. Application of Statute of Anne to all GoolIs. lord of the said premises or his bailiff all such sum or sums of money as are or shall be dire for rent for the said premises at the time of tlie taking such goods or chattels by virtue of such execution, provided the said arrears of rent do not amount to more than one year's rent ; and in case the said arrears shall exceed one year's rent, then the said party at whose suit such execution is sued out, paying the said landlord or his bailiff one year's rent, may proceed to execute his judgment as he might have done before the making of this act ; and the sheriff or other officer is hereby empowered and required to levy and pay to the plaintiff as well the money so paid for rent as the execution money. Sect. 8 provides, that nothing in the act sliall extend to prejudice her Majest}', her lieirs or successors, in recovering or seizing any debts, fines, penalties, or forfeitures due to her. By the Execution Act, 1844, 7 & 8 Vict. c. 96, s. 67, " no land- lord of any tenement let at a weekly rent shall have any claim or lien upon any goods taken in execution under the process of any court of law for more than four weeks' arrears of rent ; and if such tenement shall be let for any other term less than a year, the land- lord shall not have an}' claim or lien on such goods for more than the arrears of rent accruing during four such terms or times of payment." County Court executions are specially exempted from 8 Ann. c. 14, s. 1, by s. 160 of the County Courts Act, 1888 (sub-s. (b), infra). It has been said that 8 Ann. c. 14, s. 1, is to be construed liberally {m), i.e. in favour of landlords. It does not, however, apply to executions at the suit of the landlord (u). The words " party at whose suit the execution is sued out " are not confined to plaintiffs, but have been held to apply where a defendant sued out execution for his costs of defence (o), and to a seizure under an outlawry in a civil suit {p), or under a sequestration from the Court of Chancery {q). Where there are two or more executions the landlord cannot have a year's rent on each (r). If the goods remain on the demised premises after a fictitious bill of sale made of them rmder an execution, they are liable to be distrained {s). Notwithstanding a fraudulent bill of sale by the tenant the property remains vested in him, so as to be liable to an execution against his goods, or a distress (0. The act applies to all goods and chattels whatsoever uj)on the demised premises, wdiether belonging to the tenant or not {u) : and whether liable to a distress or not (j). {in) Hencliett v. Kimpson, 2 Wils. 141. (n) 'Taylor v. Lanijon. 6 Biug. 536 ; 4 Moore & I'avne, 316 ; 8 L. J., C. V. 180 ; 31 R.R. 485. (o) Hencliett v. Kimpson, supi-a. (p) St. John's College, Oxford v. Murcott, 7 T. R. 259. {q) Dixon v. Smith, 1 Swanst. 457. (?•) Dod V. Saxbij, 2 Stra. 1024. (s) Smith V. Russell, 3 Taunt. 400. (<) Reed v. Thoyts, 6 M. & W. 410 ; 8 Dowl. 410. (m) Forster v. Cookson, 1 Q. B. 419; Duck V. Braddyll, M'Clel. 217 ; 13 Price, 455 ; and compare Hughes v. Smalhcood, 25 Q. B. D. 306, and infra (b), as to the Countv Courts Act. (x) Risclcy V. Rylc, 11 il. & W. 16, 22. Sect. 15. — Satisfaction of Arrears by Execution Creditor. 529 None of the goods may be removed from off the demised premises Ch.XI.Sec.15. until the rent is paid, otherwise the sheriff will be personally liable Satisfaction of to an action founded on the statute {y) ; or to a summary application by Execution to the Division of the High Court out of which the execution issued, 0>-cditor. or to a judge, to compel him to pay the arrears of rent (not exceeding 8 Ann. c. 14, one year's rent) and the cost of the application (^), but an actual !^, ^^ ^ " There must bfi removal is necessary (a) : the mere execution of a bill of sale by the an actual sheriff to a purchaser is not sufficient (h). ''"""^.^ ^'''^ J- ^ ^ subsisting The act only applies to a subsisting tenancy, and the landlord's Tenancy. statutory right to be paid arrears of rent ceases on determination of the lease (c). Where in an agreement for the sale of certain pre- Coxy. Leigh. mises there was a stipulation that " in the mean time and until the assignment was made, the purchaser should pay and allow to the vendor at the rate of 1001. per annum, from the time of taking" pos- session of the premises until the completion of the purchase, in equal half-3'early jjayments ; " the purchaser having taken possession, and one half-yearly payment being due, it was held that it was due as rent, and that the vendor was entitled to it, under the statute of Anne, before the removal of any of the goods which had been seized under an execution after it became due (d). The act applies to forehand rents, payable in advance (c), even Forehand when reserved in a mortgage deed by way of further security for the interest (/). It was held in an early case (g) that the act does not apply to Grouna ground rents, but in a later one (li) that it applies to the case of a ^^'^^^' ^'^• sub-tenancy of apartments. The executor or administrator of a deceased landlord who might, Executors but for the execution, distrain for arrears of rent, is entitled to claim such rent (not exceeding one year's rent) from the sheriff (/) ; but not an administrator who first obtains letters of administration after (y) Calvert v. JoJiffe, 2 B. & Add. 418 ; {d) Saunders v. Mmfjravc, 6 B. & C. Wintle V. Freeman, 11 A. & E. 547 ; 524; 9 D. cSt R. 529; 5 L. J., K. B. 192; Risclcif V. Byk, 1 DowL, N. S. 660 ; 10 30 R. R. 414 ; 2 C. & P. 294 ; Anderson v. M. & W. 101 ; 11 Id. 16 ; Forstcr v. Midland R. Co., 3 E. & E. 614; 30 L. J., Cookson, 1 Q. B. 419 ; Bible v. Hussey, Q. B. 94. 2 Ir. Com. L. R. 308 ; 16 W. R. 710. (e) Harrison v. Barry, 7 Price, 690 ; {z) West V. Hedges, Barnes, 211 ; 6 21 R. R. 781 ; Duck v. Braddyll, M'Clel. M. & G. 1004, note ; Henchett\. Kimjyson, 217 ; 13 Price, 455. 2 ^Vih. J-iO; Arnittv. Garnett, SB. & A. (f) Yates v. Ratledge, 5 H. & N. 440 ; 22 R. R. 453 ; Yates v. Ratledge, 5 249. E, & ]SI. 249. ((/) BennctVs case, 2 Stra. 787. (a) White v. Binstead, 13 C. B. 304. («) llmrgood v. Richardson, 7 Bing. [h) Smallnmn v. Pollard, 6 M. & G. 428 ; 4 C. & P. 481, in wliich Bennett's lOul ; 1 D. & L. 901. case was not cited. It is submitted that (c) Cox V. Leigh, L. R. , 9 Q. B. 333 ; 43 the two cases are clearly in conflict ; that L. J., Q. B. 123 ; 30 L. T. 494 ; 22 W. R. the question is still open on authority ; 730. See too Cook v. Cook, Andrews, 219 ; and that on the construction of the act it Hodgson v. Gascoigne, 5 B. & Aid. 88 ; 24 applies to an immedicte landlord only. R. R. 295 ; Riseley v. Rylc. 10 M. & W. [i) Palgravc v. Windham, 1 Stra. 212. lol ; 11 Id. 16. L.T. 34 and Adminis- trators. 530 Chap. XI. — Distress for Kent. Ch.X1.Sec. 15. Satisfaction of Arrears by Execution Creditor. 8 Ann. c. 14, S. 1 C07ltd. Non-liability of Execution Creditor. Liability of Sheriff." Landlord en- titled to full Year's Kent. Sheriff may prove that value of Goods was less than Rent. the goods have been removed and sold, and the proceeds paid over to the execution creditor (k). The execution creditor is not liable to an action on the statute ; it is the sheriff who is liable (Z). The sheriff is liable to an action at the suit of the landlord, for not paying a year's rent, though the sheriff ought not to have seized the goods on account of the tenant having become bankrupt, and ma}' therefore be liable also to an action at the suit of the assignees (///). Where a sheriff seized and sold goods under a fi. fa., he was held to be liable to pay the whole of the proceeds to the assignees of the tenant, though he had paid a j-ear's rent to the landlord {n). In order to enforce a landlord's claim for a year's rent against trustees of a bankrupt tenant, after a seizure under a fieri facias which is illegal as against them, there must be an actual distress : unless perhaps the sheriff has paid the amount before he had notice of the bankruptcy (o). Where the sheriff seizes and removes, under a fi. fit., goods which are not the property of the judgment debtor, and after- wards pays the whole of the proceeds of the sale to the real owner, he is still liable under the statute for not paying a year's rent to the landlord ( j)). Under a fi. fa. against A., the sheriff seized the goods of B. ; B. claiming them, the sheriff obtained an order under the Interpleader Act, and C, the landlord, claimed 25L for a quarter's rent. The goods were sold under the order, and the amount, after deducting the 25Z.,'was paid b}' the sheriff into court. On the trial of the issue, B. established his claim; it was held, that, under the circumstances, the sheriff was not justified in paying the rent(r Rent. Advance, pa,ying the rent, seems to be sufficient upon motion in arrest of judgment or on appeal (c). Notice from the hmdlord to the execu- tion creditor is clearly unnecessary' (<:/). The notice to the sheriff is only for the purpose of establishing beyond all doubt his knowledge of the landlord's claim (laintitl' in re- plevin, is repealed by the Statute Law Kevision and Civil Procedure Act, 1883, 46 & 47 Vict. c. 49, apparently lieing superseded by K. S. C. Order XXll. rule 9. [a) Gilb. Kepi. 152. (h) Bodkin v. Powell, 2 Cowp. 476. (c) 1 Kyd on Corporations, 223 ; Bac. Abr. tit. Corporations (E. 2). {d) See Eastern Counties R. Co. v. Broom (in error), 6 Exch. 314, which decides that trespass lies against a corpora- tion aggregate for an act done by their agent within the scope of his atithority ; and see Green v. London. General Omnibus Co., 7 C. B.. N. S. 290 ; 29 L. J., C. P. 13. {e) Cory v. Matthews, cited 1 Salk. 191 ; 6 Vin. Abr. 287. (/) Ante, 468. ig) Intra, 543. (A) Infra, f43. (t) 52 Hen. 3, c. 21 ; 2 Inst. 138. (k) 1 P. & M. c. 12, s. 3 ; see Faulkner v. Johnson. 11 M. & W. 581; Plumer v. Brisco, 11 Q. B. 46. Sect. 1. — Eepleyin (Peeliminary Procedure). 543 replevins, and to issue all necessary process in relation thereto, and such Oh. XII. s 1, process shall be executed by the high bailiff. Such registrar shall, at Replevin the instance of the party whose goods shall have been seized {I), cause the {Prehmmari/ same to be replevied to such party, on his giving one or other of such securities as are mentioned in the next two succeeding sections. In the next two sections, sect. 135 and sect. 136 of the act, provision is made, firstly by sect. 135 for bringing the action of replevin in the High Court if title be in question, or the rent exceed 20/., and secondly by sect. 136 for bringing the action in the County Court. In either case security must be given, conditioned to com- mence an action against the distrainer — within one week in the High Court or within one month in the Count}' Court, and the tenant has always an option to sue in either court, though unless he obtains judgment by default or title be in question, or the rent exceed 20/., an action in the High Court will probably fail. By sect. 135, where a replevisor wishes to proceed in the High ^^^^- ^^°- Court, he must, at the time of replevying, give security, to be Hlcfh^Courr^ approved of by the registrar, for such amount as such registrar shall Conditions of deem sufficient to cover the alleged rent or damage "in respect of aiven in such which the distress shall have been made," and the probable costs of Cases. the action in the High Court, conditioned to commence an action of rej)levin against the seizor in the High Court within one iveek from the date thereof, and to prosecute such action with effect {m), and without delay {n) ; and, unless judgment therein be obtained by default, to prove before the High Court that he had good ground for believing either that the title to some hereditament, the rent or value whereof exceeded twenty jjounds by the 3'ear, or to some toll, &c., was in question, or that such rent or damage, or the value of the goods seized, exceeded twenty jJounds, and to make return of the goods, if a return thereof shall be adjudged " (o). As to replevin in the County Court, it is enacted by sect. 136 of ^*'^'^- '^^^■ the County Courts Act, 1888, that " if a replevisor shall wish to §oimTy Com-t. commence j^roceedings in a County Court, he shall at the time Security. of replevying give security, to be approved of by the registrar, for such an amount as such registrar shall deem sufficient to cover the alleged rent or damage in respect of which the distress shall have been made, and the probable costs of the action in the County Court, conditioned to commence an action of replevin against the seizor in the County Court of the district in which the goods shall have been seized, witliin one month {p) from the date of the il) A replevin can be had only by or on (o) See Form of Bond, Appendix F,., behalf of the actual or constructive owner Sect. 1, No. 5 ; of Memorandum of Deposit of the goods ; see Felix. Whittaker, post, in lieu of Bond, Id., No. 6. 560. (jj) I.e. one calendar month ; Interpreta- (m) I.e. with success; ante, 539 (&). tion Act, 1889, s. 3. (71) Ante 539(c). 544 Ghap. XII. — Remedies for Wrongful Distress. Ch. XII. s. 1. Rcph'cln (PrcUnnnarij Frocedure). Sect. 108. Security by Bond witli Sureties. Joint-Stock Comyianies and Infants may give such Bonds. Sect. 109. Security liy Deposit with a Memoran- dum. The Conntv Court Kuk'S, as to Notices of Sureties, &c. secuiit}', and to prosecute such action with effect (5) and without delay (?•), and to make return of the goods, if a return thereof shall be adjudged" (s). By sect. 108 of the County Courts KoX, 1888, the security is to be at the cost of the part}' giving it, and in the form of a bond {i), with sureties, to the other party or intended party in the action " provided alvvaj's, that the court in which any action on the bond shall be brought, may, by order, give such relief to the obligors as may be just, and such order shall have the effect of a defeasance of such bond." It seems that a bond of the above nature may be entered into b}^ a joint-stock company, or even by an infant, with sufficient sureties, and that the registrar cannot refuse to receive such bond, on the ground that the principal obligor is disqualified to execute it ; for otherwise such parties would lose the benefit of the statute ill), and be thereby deprived of the right to replevy'. By sect. 109, replacing sect. 71 of the Act of 1856, the part}' required to give security may in lieu thereof deposit with the registrar, if the security is required to be given in a County Court, or with a master of the Supreme Court if the security is required to be given in the High Court, a sum equal in amount to the sum for which he would be required to give security, togetJier witli a mcmoraiiduui signed by such party, his solicitor or agent, setting forth the condi- tions on which such money is deposited. The County Court Eules, 1889, made under the authority of s. 164 of the Act, provide by Order XXIX. with reference to notices of proposed sureties and other matters, as foHows : — ORDER XXIX. Skcuuitv. Order XXIX. 1- ^'^ '^^^ cases where a part}' proposes to give a bond by way of security, he shall Security by serve, by post or otherwise, ou tlie opposite party and upon the registrar, at his office, bond. notice of tlie proposed sureties according to tlie form in the Appendix (cf), and the regis- Form 120. trar shall forthwith give notice (y) to both parties of the day aud hour ou which he proposes that the bond siiall be executed, and shall state in the notice to tlie obligee that any valid objection which he may have to make to the sureties or either of them must be made on such day. Affiilavit of 2. The .sureties shall make an affidavit of their sufficiency according to the foi'm in the sufficiency. Appendix (c), nnle.ss the opposite party shall dispense with such affidavit. Execution of o. The bond shnll be executed in the presence of the judge or regi.-:trar, or of a Bond. commis^ioner to administer oatli.s, or uf the clerk to the registrar authorized to tidce affidavits. {0) With success ; Tummons v. 0(jle, 6 E'. & B. 571. (/•) With due diligence ; see Gent v. Cults, 11 Q. B. 288. (s) See Form of Bond, Ajjpendix E. , Sect. 1, Xo. 7 ; of MemoriUidum of De- posit in lieu of Bond, Id., Ko. 8. (i) Sec Forms. (tt) See Youug v. Bromi.>ton, Ckatham and Gillinqhnm Watcrxoorks Co., 1 B. . & S. 634 ; (i) Wilk. Eepl. 85 : Gibbs v. Cruik- 32 L. J., M. C. 121 ; Connor v. Bentlcy, shank, L. R., 8 C. P. 45-1. 1 Jebb. & S. 246. See, too, Wilkinson on [k) R. S. C. Order XVill., Rule 1. Replevin, 85. 552 Chap. XII. — Eemedies for Wrongful Distress. Ch. XII. s. 1. Replevin [in High Court). Proof of special Reason for stiinc;; in the High Court. distrained for. And if the plaintiff" incurred further expenses than the fees paid at the County Court (his own solicitor's charges for instance) he should prove them and also the fees so paid ; otherwise the lowest usual amount will be awarded. If the goods or cattle have not been delivered to the plaintiff on the replevy, he is entitled to recover the value, of the goods or cattle distrained, and also his damages for their detention, kc. (as in an action of detinue), together with the costs and expenses of the replevy ; and perhaps also any special damage occasioned by the distress, which is properly alleged in the statement of claim and sufficiently proved. In such case the jury should b}' their verdict sei^arate the damages, and find so much for the value of the goods or cattle, and so much for the detention, &c. {I). The jury may find a special verdict in an action of replevin (?»)• By the condition of the replevin bond, where the action is brought in the High Coui't, unless judgment is obtained by default, the plaintift' must " prove before such court that he had good ground for believing either that the title to the same corporeal or incorporeal hereditaments, or some toll, market, fair or franchise was in question, or that such rent or damage exceeded 20L" {n). It would seem that the plaintiff should apply upon affidavit to the court or a judge in chambers (o) for leave to enter a suggestion on the roll, that the plaintiff has proved before this court that, kc. And when the rule absolute or order for such leave is obtained, to make an entry accordingly on the roll ; otherwise, perhaps, the plaintiff and his sureties ma}' be troubled with an action on tlie replevin bond, notwithstanding he obtained a verdict and judgment in his favour. When Judg- ment a bar to other Action. Gibhs V. Cruikshank. Costs of Defendant. A judgment for the plaintift" in replevin is a bar to an action for damages for the same taking of the goods in respect of which the replevin was brought {})). Under the Distress for Rent Act, 1737, 11 Geo. 2, c. 19, s. 22, where a defendant in replevin avowed or" made cognizance upon any distress for i-ent, &:c., and the plaintiff became nonsuit, discontinued, or had judgment against him, the defendant recovered double costs. But by the Limitation of Actions and Costs Act, 1842, 5 & 6 Vict, c. 97, s. 2, in lieu of such double costs he became entitled to receive il) Ash V. JVood, Cro. Eliz. 59. (m) See the case of Jones v. Johnson, 5 Exch. 862 ; 7 Exch. 452. (n) County Courts Act, 1888, s. 135 ; ante, 543. (o) Not to the judge at Nisi Prius ; Tunnidiffc v. Wilmot, 2 C. & K. 626, hut in this case a certificate was refused because the plaintitf had not obtained the verdict. ip) Gihhsw. Cruikshank, L. P., 8 C. P. 454 ; 42 L. J., C. P. 273 ; 28 L. T. 735 ; 21 W. R. 734. Sect. 1. — Keplevin (Action in High Court). • 553 such full and reasonable indemnit}^ as to all costs, charges and Ch. XII. s. l. expenses incurred in and about the suit as should be taxed by the ^^fl^^^J^^^ proper officer ; and the right to this indemnity seems to be unaffected — — - — ; Pio, ' ^ 1-1- "Full and by Order LXV. of the Eules of the Supreme Court which gives a Reasonable discretion as to costs to the judge (q). Indemnity." If the defendant have judgment, he has execution by a writ de Execution for retorno habendo, to have a return of the goods distrained, and a fi. fa. for his costs (r). It seems that the writ of retorno habendo and a fi. fa. for damages and costs may be included in one writ (r). The sheriff, under the writ of retorno habendo, might, under the Writ de Re- old practice (which would seem to be still in force, if the proceedings bendo— how should be carried so far), cause the goods or cattle which were executed. replevied to be taken from the plaintiff and re-delivered to the defendant ; but this was seldom done. The usual practice was for the sheriff to return donqata, viz., that the goods or cattle were Capias in '' ' ' ^^^ . . . . A\ ithernam. ■eloigned and removed to places unknown. Lpon this return being filed the defendant might have a " capias in withernam," by which the sheriff was commanded to take the cattle, goods, and chattels of the plaintiff", to the value of the cattle, goods, and chattels before taken, to be delivered to the defendant, to be kept by him till the sheriff can cause to be returned the cattle, goods, and chattels before taken, kc. (s). If this Avas returned nihil the defendant might sue out an alias, and after that a pluries (f) : but if these all proved unsuccessful he had to sue the plaintiff and his sureties on the replevin bond. The sheriff' was not bound to execute a writ de retorno habendo by actually delivering the goods or cattle therein mentioned to the defendant, unless the defendant or some person on his behalf attended to point out the particular goods or cattle and to receive the same. If that were not done the sheriff might make a return to the writ that no person did so attend {u). The writ of retorno habendo was generally sued out for the purpose of founding proceedings on the replevin bond ; but this is unnecessaiy, for as such bond is conditioned to prosecute the suit " with effect," and also to make a return, if return be awarded, the bond is forfeited by the plaintiff not prosecuting his suit icith success (x). The bond is considered as a further and better security for such return, &c. (//). (q) See per Lord Blackburn in Garncti and for form, see Chit. Forms (12th ed.), V. Bradley, L. R., 3 App. Cas. 944 ; p. 627. HasJccr v. Wood, 54 L. J., Q. B. 419. (t) 2 Chit. Arch. 1265 (11th ed.). (r) See Chit. Forms, 12th ed., p. 625 (u) S: Wms. Saund. 74 b, c. 4. et seq. (x) Watson, Sheriff, 421. (s) The meaning of "in withernam" (/y) Turnor v. Turner, 2 Brod. & B. seems to be "by way of reprisal." See 107. Steph. Com. (7tii. ed.), Vol. III., p. 423, 554 Chap. XII. — Eejiedies for Wrongful Distress. Replevin {in Sigh Court). New Trial. Cii. XII. .s. 1. In replevin, where the verdict is for the phiintiff, the court will not in general grant a new trial, even on payment of costs, without ver}^ clear grounds ; for the landlord has other remedies for his rent, and a new trial would renew the liahility of the sureties, and the plaintift"'s risk of paying full costs, charges and expenses {z) ; though the rule that a new trial will not be granted for either party where tlie sum given or recoverable does not exceed 20L does not apply to replevin («). (e) Action of Replevin removed hy Certiorari from County Court into the High Court. A plaintiff who has elected to bring an action of replevin in the County Court cannot afterwards remove it into the High Court ; but the defendant is entitled to remove such action into the High Court by writ of certiorari on applying to the High Court, or a judge, pursuant to s. 137 of the County Courts Act, 1888, 51 & 52 Yict. c. 43, on giving security as therein mentioned {h). The application for the writ of certiorari should generally be made to a judge at chambers, and not to the court except under special circumstances (c). It should be supported by an affidavit entitled in the High Court of Justice (Queen's Bench Division) ; but not in any cause or matter (c/), and must show good ground for believing either that the title to some corporeal or incorporeal hereditament is in question, or that the rent exceeded 20/. {e). The judge may in his discretion order the writ to issue upon an ex parte application ; but more frequenth' only a summons to show cause is granted in the first instance (/). The court or judge may direct that the rule nisi or summons shall operate as a stay of proceed- ings ig). It should be drawn forthwitli and served without delay on the opposite party and on the registrar of the Count}' Court. If not so served two clear days before the day fixed for the hearing of the cause the judge of the Count}' Court may, in his discretion, order the party who obtained the rule or summons to \)i\\ all the costs of the day, or so much thereof as he shall think fit, unless the High Court or a judge thereof shall have made some order respecting such costs {h). AVhere the writ has been granted on an ex parte application, and the party who obtained it does not lodge it with the registrar, and give notice to the opposite party, two clear days before the day fixed for hearing the cause to which it relates, I By Defendant only. Application for Certiorari. Affidavit iu support. Order or Summons, with a stay of Proceedings. Service thereof. {z) Parry v. Duncan, 7 Binf]^. 243. (a) Edqson v. Cardivell, L. R., 8 C. V. 647 ; 28 L. T. 819 (new trial not granted). {b) See Munqcan v. Whcatley, 6 Ex. 88 ; 20 L. J., Ex. 106. (c) Bowcn V. Evans, 3 Exch. Ill ; 6 D. & L. 193. ^ {d) 2 Chit. Arch. lOSS (11th ed.). (e) See forms of affidavit, Chit Forms (12th ed.), p. 629 ; and see Oldham & Foster's Law of DIstre.ss (2nd ed. ), p. 436. (/) 2 Chit. Arch. 1088. (ii) Countv Courts Act, 1888. s. 129. (/t) lb. Sect. 1. — Eeplevin (removed to High Court by Certiorari). 555 the judge of the County Court may order the party who obtained Ch. XII. s. l. the writ to pav the costs of the dav (i). Replevin {Re- ^ ^ " moved to High By sect. 132 of the County Courts Act, 1888, "when the High Court by Cer- Court or a judge thereof shall have refused to grant a writ of t^oran). certiorari" \kc.'\ "no other court or judge shall grant such writ" No renewed "^ " Application : [&c.] : " but nothing herein shall affect the right of appealing from ^^j^^g^g ^^ the decision of the judge of the High Court to the court itself, or Appeal: prevent a second application being made for such a writ " [&c.] " to ^^' '^" different the High Court or a judge thereof, on grounds different from those on which the first application was founded." (fj Proceedings on the Replevin Bond. The condition of a replevin bond varies according to the court in which the action of replevin is to be commenced and prosecuted (k). An action on the bond may be brought immediately on the con- dition being broken (/). It must be brought in the name of the obligee, his executors or administrators. It may be brought against all the obligors jointly, or against any one of them separately ; but not against any two, unless the other be dead. The court in which the action is brought may b}' rule or order give such relief to the obligors as may be just, and such rule or order shall have the effect of a defeasance of such bond (m). The obligees are only liable to the amount of the penalt}' on the bond and the costs of the action thereon (h). Therefore proceedings in sucli suit maybe stayed on payment of the penalty and costs, though the plaintiff's costs in the replevin suit much exceed the penalty (o). A judge at chambers may order the stay of proceedings (o). The sureties are liable only to the amount of the rent in arrear at the time of the distress, and the costs of the action of replevin and of the action on the bond ; but not for any subsequent rent. (g) Proceedings to obtain Sn)n deposited in lieu of a Bond. AVhere a sum of money has been deposited with a memorandum pursuant to sect. lOU of the County Courts Act, 1888, "the judge of the County Court, when the money shall have been deposited in such court, or a judge of the High Court, when the money shall have been deposited in the High Court, may, on the same evidence as would be required to enforce or avoid such bond, order such sum so deposited to be paid out to such party or parties as to him shall seem just " (p). (/) lb. s. 41. (m) County Courts Act, 1888, s. 108. (k) Ante, 542. (?i) Hcfford v. Alger, 1 Taant. 213 ; [h Gill). Repl. 22.5 ; see Waterman v. Branxcombe v. Scarborough, 6 Q. Y>. 13. Yea, 2 Wils. 41 ; Tumor v. Turner, 2 (o) Ward v. Hcnlcij, 1 Y. & J. 285. Brnd. & B. 107. {p) Ante, 544. 556 Chap. XII. — Eemedies foe Wrongful Distress. Ch. XII, s. 1. The application should be founded on a sufficient affidavit or affidavits Replevin {Re- ^f ^j^g facts, showing a breach or breaches of the condition or full moved to High " Court bij Cer- performance thereof, as the case may be. tiorari). 2 & 3 Vict. c. 71, s. 39. Summary Remedy for unlawful, ex- cessive and irregular Distresses ■within the Metropolitan Police District. Sect. 2. — Damages for Wrongful Distress. (a) Summa]-i/ Remedy icithin the Metropolitan Police District. By the Metropolitan Police Courts Act, 1839, 2 & 3 Vict. c. 71, " An Act regulating the Police Courts in the Metropolis," it is enacted (sect. 39), " That on complaint made to any of the said magistrates by any person who shall, witliin the metropolitan police district, have occupied any house or lodging by the week or month, or whereof the rent does not exceed the rate of fifteen pounds hy the year, that his goods have been taken from him by an unlawful distress, or that the landlord, or his broker or agent, has been guilty of an irregularity or excess in respect of such distress, it shall be lawful for such magistrate to summon the party complained against ; and if upon the hearing of the matter it shall appear to the magistrate that such distress was improperly taken, or unfairly disposed of, or that the charges made by the party having distrained, or having attempted to distrain, are contrary to law, or that the pro- ceeds of the sale of such distress have not been duly accounted for to the owner thereof, it shall be lawful for the magistrate to order the distress so taken, if not sold, to be returned to the tenant on payment of the rent which shall appear to be due at such time as the magistrate shall appoint ; or if the distress shall have been sold, then to order payment to the said tenant of the value thereof, deducting thereout the rent which shall so appear to be due, such value to be determined by the magistrate ; and such landlord or party complained against, in default of compliance with any such order, shall forfeit to the party aggrieved the value of such distress, not being greater than fifteen pounds, such value to be determined by the magistrate." This enactment (which is permissive only, and does not prevent a tenant suing for double value where he can) is confined to distresses for rent made within the metropolitan police district, the limits whereof are defined in the schedule to the Metropolitan Police Act, 1829, 10 Geo. 4, c. 44, as amended by the Metropolitan Police Act, 1839, and by Order in Council of 3rd January, 1840 {p) ; also to cases where the rent does not exceed Ibl. per annum, or the tenanc}' was by the week or month. It would seem that it might be very bene- ficially extended to the whole kingdom, and to larger tenancies, and also to be made applicable to distresses for damage feasant, &c. {p) Sec Metropolitan Police Guide, 2nd ed., at \\ 28. Sect. 2. — Eecoyery of Damages (Action foe Double Value). 557 (b) Action for Double Value under 2 Will, d: Mary, sess. 1, c. 5. Ch. XII. s. 2, ItcC0V€7*li of In cases where no rent was owing, and the distress has been sokl, Damages far the owner may recover double the vahie of the goods distrained. l^rongfad •^ _ _ <^ Distress. This very full remedy is given b}' 2 Will. & Mary, sess. 1, c. 5, 1-1 • T 1 • IT 11 Double s. 5 {q) ; which provides that " in case any such distress and sale as Damages in aforesaid [i.e. sale after five days, failing a replevy] sliall be made by case of Sale virtue and colour of this present act for rent pretended to be in arrear Rent owing. and due, where in truth no rent is in ai.'rear and due to the person Double Value ,. . . , . ■, . ■, ofGoodsSokL or jiersons distraining, or to hiin or them m whose name or names or right such distress shall be taken as aforesaid, then the owner of such goods or chattels distrained and sold as aforesaid, his executors or administrators, shall and ma}', by action of trespass, or upon the case, to be brought against the i^erson or persons so distraining, any or either of them, his executors or administrators, recover double of the value of the goods or chattels so distrained and sold, together with full costs of suit " (?•)• If such an action be brought, the jury must be directed to give Nominal double value as damages, and cannot give nominal damages (s). cannofbe- given. (c) Ordinary Action for Damages. Upon the system of procedure in the superior courts of law under Ordinary the Common Law Procedure Acts, the action differed according as Wronf^ful the act of the landlord in distraining was (1) wrongful and illegal. Distress. or (2) excessive only, or (3) merely irregular. In the first case the tenant might have recourse to an action of trespass or trover or detinue ; in the second to an action on the case for damages under the statute of Marlebridge, 52 Hen, 3, c. 4, unless the distress was plainly excessive on the face of it, in which case it was illegal, and the tenant might bring an action of trespass (t) ; or in the third case the tenant might maintain an action on the case against the land- lord, or trover against a purchaser of the goods. But it must be remembered that, where the distress is only irregular and does not amount to a trespass, and is not excessive, the right of action depends upon the fact of the tenant having suffered actual damage, and he cannot maintain anv action answering to the old actions of trespass or trover (u). By the Judicature Acts and the Eules of the Supreme Court these One Form of distinctions are for the most part swept away. There is now one ^f -^yjfjj f^^. {q) Mere distress is not enough ; there 582, 590. must be a sale for the statute to oj^erate. (u) Robinson v. Waddington, 13 Q. B. (/•) As to costs, see now E. S. C. 1883, 753 ; Lucas v. Tarleton, 3 H. & N. 116 ; Order LX v., and Masker v. JFood, 54 37 L. J., Ex. 246; Whiticorth y. Smith, L. J., Q. B. 419. 5 C. & P. 250 ; Carter v. Carter, 5 Bing. (5) Masters v. Farris, 1 C. B. 715. 406 ; 7 L. J. C. P. 141 ; 30 R. R. 677. {t) Moir V. Mundatj, cited in 1 Burr. all Claims. e558 Chap. XIL- — Remedies for Wrongful Distress. Ch. XII. K. 2 Recovery of Damages for IFrotif/ful Distress. Against whom Actimi should be lirouglit. Damages. Double Value. Action of Trover, &c. form of indorsement of writ provided for all claims for damages arising from wrongful distress, whether illegal, excessive, or only irregular (x). The statements of claim and defence must set out the facts so far as they are necessary to show that the plaintiff has a good cause of action and that the defendant has a good defence respective!}', care being taken to set out such circumstances as will make the distress wrongful in some of the ways pointed out in the earlier part of this chapter. There is, however, no technical distinction between the forms of action. There is no specimen statement given in the Appendix to the Rules of the Supreme Court. It is, however, still material to distinguish the various kinds of wrongful distress in relation to the question against what persons a tenant can proceed. In the case of an illegal distress, the action should be brought against the person actually committing the illegal act, and not against the landlord, unless it can be shown that he expressly authorized the act or adopted and ratified it afterwards (//), of wliich his presence on the premises immediately after the com- mittal of the wrongful act is evidence {z), though the mere receijit of the proceeds without proof of knowledge of the illegal act is not so {a). When the distress is illegal and therefore void from the com- mencement, the tenant is entitled to recover the full value of the goods distrained (or of such part of them as were not subject to dis- tress (/>)), and any damages sustained by him, nor need any deduction be made for the rent due from him {c). If, however, the landlord seize, among others, things not liable to distress, and on payment of rent and costs withdraws, the tenant can onl}' recover the actual damage sustained by him by the seizure of the particular privileged goods (r?). If no rent be in arrear and the goods have been sold, the tenant ma}' recover double the value of the goods and full costs of suit {(') . In addition to proceeding for damages for the illegal distress, the tenant may, if he prefer it, proceed in what may still be called an action of trover or detinue against the person who has by purchase or otherwise come into possession of the goods ; for which cases forms {x) R. S. C. App. A., Part II., s. 4; post, App. D. {y) Lewis V. Bead, 13 M. & W. 834 ; Freeman v. Roshcr. 13 Q. B. 780 ; 6 D. & L. 517 ; Gmintlett v. King, 3 C. B., N. S. 59 ; Hascler v. Lcmoync, 5 C. B., N. S. 530 ; but see Hurry v. Rickmnn, 1 Mood. & Rob. 126. (z) Moore v. Drinkicater, 1 F. & F. 134. (a) Green v. Wise, W. N. 1877, p. 130. (//) Keen v. Priest, 4 H. & N. 236 ; 28 L. J., Ex. 157 ; Swire v. Leech, 18 C. B., N. S. 479 ; 34 L. J., C. P. 150. (c) Attack V. Bramwell, 3 B. & S. 520 ; 32 L. J., Q. B. 156 ; Edmondson v. Nuttall, 17 C. B., N. S. 280. See, too, Tutto)i v. Darke and Nixon v. Freeman, 5 H. & X. 647. (d) Hurry v. Pocock, 11 M. & W. 740 ; 12 L. J., Ex. 434. (c) Supra, 557. Sect. 2. — Eecovery of Damages (Action Proper). 559 of indorsement of writs are provided ( /'). The tenant will have the Ch. XII. s. 2. same rights as to the amount of damaa;es he may recover as in the Recovery of *^ o ^ Damages for former mode of action {g) . irrougfui Similar actions may be maintained by others whose goods are taken '^jess^ — who are not tenants of the landlord purporting to distrain, but those cases would not be properly noticed here, as, in regard to them, there could be no relation of landlord and tenant. Where the only complaint against the landlord is that the sale has Action for ^ X 1 Overplus. produced more than the amount due, and the overplus has not been left in the hands of the sheriff, under-sheriff or constable, as directed by 2 Will. & Mary, sess. 1, c. 5, the tenant should sue in tort, as for a breach of the statute, and not for a return of the balance as money received to his use {h). Prior to 11 Geo. 2, c. 19, any irregularity in a distress made the Exces.sive or distress unlawful, so that the full value of the rent for which the Distress, distress was taken might be recovered b,y action (i). But this hard- n Geo. 2, ship upon landlords was remedied by sect. 19 of that statute, which ^- •^'^' ^' ^^' enacts that, " where any distress shall be made for any kind of rent justly due, and any irregularity or unlawful act shall be afterwards done by the party or parties distraining, or by his, her or their agents, the distress itself shall not be deemed to be unlawful, nor the party or parties so making it be therefore deemed a trespasser or trespassers ab initio ; but the party or parties aggrieved by such unlawful act or irregularity shall or may recover full satisfaction for the special damage he, she or they shall have sustained thereby, and no more, in an}'' action of trespass, or on the case at the election of the plaintiff or plaintiffs ; provided always, that where the plaintiff or plaintiffs shall recover in such action, he, she or they shall be paid his or their full costs of suit, and shall have all the like remedies for the same as in other cases of costs." By sect. 20 of the same statute, "no tenant," kc. "shall recover in any action for any such unlawful act or irregularity, if tender of amends hath been made by the party distraining, or his agent, before action brought." If amends be tendered under this section, the landlord need not in the case of action pay the money into court (A;)- Nor can the person in possession of the goods be sued for a conversion of them (/). Whether the distress was excessive is for tlie jury (m). (/) R. S. C. App. A., Part II., s. 2. Carpenters' case, 1 Sm. L. C. {g) Supra, 558. (X") See Jones v. Gooday, 9 il. & W. 736 [h) Yates v. Eastwood, 6 Exch. 805 ; (decided on a local act). 20 L. J., Ex. 303 ; Evans v. Wriylit, {D Whitivorth v. Smith, 5 C. & T. 250 ; 2 H. & N. 527. 1 Moo. & R. 194 (i) See preamble of Distress for Rent (/») See Smith v. Ashforth, 29 L. J., Act, 3737, 11 Geo. 2, c. 19, s. 19; Six Ex. 259. 560 Chap. XII. — Remedies for Wrongful Distress. Ch. XII. s. 2. Reeovery of Damages for Wrongful Distress. A right of action for an excessive distress will not be defeated by a subsequent arrangement made by the tenant with the landlord to prevent a sale of the goods (n) ; but a recovery in replevin is a bar to any subsequent action for an excessive distress (o). Property of Plaintiff. Fell V. WMtalcer. The plaintift" must of course show that he has such a property in the goods as will allow him to maintain an action, and it has been held that the mere enjo3'ment of the use of the goods by a person who is neither legal nor equitable owner will entitle him to sue {p). " Not Guilty by Statute." DoiiWo costs for defeiulaiit on nonsuit or discontinu- ance. With regard to the defences to actions for illegal, excessive or irregular distresses, the statement of defence must contain such matters as will show the defendant's action to have been lawful, and the only matter to be particularly noticed is that by the Distress for Rent Act, 1737, 11 Geo. 2, c. 19, s. 21, the defendant was allowed to plead not guilty by statute, and give the special matter in evidence {q), a right in all cases in wdiich it existed, preserved under the Judicature Acts (r), subject only to the conditions that no other defence can be pleaded with it except by leave of the court or a judge, and that the defendant must state the statute in the margin of his pleading (;) ; and it may be as well to point out that in one case at least a plea of not guilty by statute, together with a special plea of justification, under a right to distrain, was, under the old practice, disallowed, as setting up matters which could be disposed of under the one defence of the general issue (.s). Section 21 of the Distress for Rent Act, 1737, 11 Geo. 2, c. 19, gives double costs to a defendant on nonsuit, as follows : — In all actions of trespass, or upon the case, to be brought against any person or persons entitled to rents or services of any kind, his, her or their bailitf or receiver, or other person, relating to any entry by virtue of this act, or otherwise, upon the premises chargeable with such rents or services,. or to any distress or seizure, sale or disposal, of any goods or chattels thereupon, it shall and may be lawful to and for the defendant or defendants in such actions to plead the general issue and give the special matter in evidence, or law or usage to the contrary notwithstanding : and in case the plaintiff or plaintiffs shall become nonsuited, discontinue his or their action, or have judgment against him, her or them, the defendant or defendants shall recover double costs of suit. {n) WiUoughhy v. Backhouse, 2 B & C. 821 ; Peles v. Hoarc, 1 Bing. 401 ; 1 C. & P. 28 ; and see this case commented on in Glynn v. TJtomns, 11 Excli. 870, 876. (o) Phillips V. Bcrryman, 3 i)oug. 286 ; White V. Willis, 2 Wils. 87 ; Feme v. Chaytor, 1 B. & S. 658, 602 ; 3 B. & S. 620 ; 32 L. J., M. C. 121. ip) Fell V. Whittaker, L. l\., 7 Q. B. 120 ; 41 L. J., Q. B. 73 ; 25 L. T. 880 ; 20 W. K. 317. iq) 11 Geo. 2, c. 19, s. 21. SeeA'ashv. Lucas, L. R., 2 Q. P.. 590. (/■) R. S. C. Order XIX., Rule 12 ; Order XXII., Rule 19. (s) Ncale v. Mackenzie, 1 C, M. & R. 61 ; 2 Dowl. 702. Sect. 2. — Eecovery of Damages (Action Proper). 561 This section is verv wide, but it would seem to include cases of Ch. XII. s. 2. Recovery of Damages for Wrongful Distress. irregular and excessive distress only, and not to apply to unlawful distress. The defendant is not bound to avail himself of the section, but may, it is conceived, without leave enter a defence in the ordinary form. If the defendant has not previously so tendered and pays money into court, the plaintiff is entitled only to his ordinar}' costs of suit, and not to the full costs, &c., which are given by the Limitations of Actions and Costs Act, 1842, 5 & 6 Vict. c. 97, s. 1, in lieu of the double costs given by the Distress for Rent Act, 1737, 11 Geo. 2, c. 19, s. 21 {t), the two statutes being unaffected by R. S. C. 1883, Order LXV. (»). Under the defence of " not guilty by statute "the tenanc}- and ownership of the goods, as well as other matter of justification, is put in issue (.r) . The measure of damages appears to be, in cases of excessive dis- Pleasure of tress, the fair value of the goods (not merely what they would have 'i™''^o<^^- fetched at a broker's sale), minus, however, the rent due and the cost of the distress {y) ; and although the plaintiff fail to prove that he has sustained actual damage, yet on proof only that the distress was excessive he is entitled to recover some damages {s). If, how- ever, the distress be merely irregular the defendant must succeed, unless actual damage be proved (a). Sect. 3. — liemedy hy Proceedings before Justices or County Court, under Agricultural Holdings Act. If a distress has been made upon a holding to which the Agri- Summary de- cultural Holdings Act applies (h), a special and summary mode of of\lispute determining any dispute arising out of such distress may, but need ^mder s. 46 of • n ■, -r. •• ■-,■,-, .. n Agricultural not 01 necessity, be resorted to. lor it is provided b}' sect. 4b oi HoMhigs Act. that act that " where an}- dispute arises," either (a) as to a distress having been levied contrary to the act (c), or (b) as to the ownership of live stock distrained or as to the price for feeding (d), or (c) as to any other matter or thing relating to a holding to which the act appHes, " such dispute may be heard and determined by the county (t) Handcod: v. Foulkes, 9 M. & W. 431 ; 1 Dowl. N. S. 658. (h) See Haskcr v. JFood, 54 L. J., Q. B. 419 ; 33 W. R. 697— C. A. ; Eeeve v. Gibson, [1891] 60 L. J., Q. B. 451 ; 39 W. R. 420— C. A. (x) Williams Y. Jones, 11 A. & E. 643 ; Boss V. Clifton, Id. 631. (*/) See Biggins v. Goode, 2 C. & J. 364 ; Knight v. Egerton, 7 Excli. 407 ; Piggott V. Dirties, 1 M. & W. 441 ; aud at nisi L.T. prius, Knoits v. Curtis, 5 C. & P. 322 ; Wells V. Moody, 7 C. & P. 59 ; Whiticorth V. Madden. 2 C. & K. 517. [z] Chandler v. Doulton, 3 H. & C. 553 ; 34 L. J., Ex. 89. («) Lucas V. Tarleton, 3 H. & X. 116 ; 27 L. J., Ex. 246 ; Dodgers v. Parker, 18 C. B. 112 ; 25 L. J., C. P. 220. ih) See Chap. XL, Sect. 5, ante. (c) See s. 44 of the act, ante, 490. ((/) See s. 45 of the act, ante, 486. 36 562 Chap. XII. — Eejiedies for Wrongful Distress. Cir. XII. s. 3 Remedy hy Proceedings under Agri- cultural Holdings Act. Appeal. Application of s. 46 of Agricultnral Holdings Act, court {e), or a court of summar}' jurisdiction" (/), either of which courts may make an order for restoration, &c., " or may make any other order which justice requires." By the same section there is an express appeal from the court of summary jurisdiction, but none from the county court. It has been held, however, that there was an appeal from the county court to the High Court by virtue of sect. 13 of the County Courts Act, 1867 (f/), and the 120th section of the County Courts Act, 1888, 51 & 52 Yict. c. 43, appears to have the same effect. It is further provided by sect. 49 that no order of the county court or a court of summary jurisdiction shall be removed by certiorari. This section appears to be open to any party, whether landlord, tenant or other, to a dispute within its meaning. It gives a cumula- tive remedy, and no party is bound to have recourse to it. By having recourse to it, a party would not be legally bound to carry his complaint through up to decision, but would, it is conceived, be bound by any decision arrived at. The words " may be heard and determined " would seem to have a compulsory force, so as not to admit of the courts named declining jurisdiction {h). (c) That is by s. 61 the county court within the district within which the larger part thereof is situate. (/) Tliat is by justices of the peace, presumably of the petty sessional division, but the act is silent as to this. (cj) Hanmer v. King, 57 L. T. 367. (/() See Maxwell on Statutes, 3rd ed., citing Ficg. v. Aclamson, 1 Q. B. D. 201, and other cases. ( 563 ) CHAPTER XIII. EECOVERY OF RENT BY ACTION. Sect. page 1. Eecovery of Rent on Covenant 563 2. Kecovery of Rent on Simple Contract 568 3. Implied Contract for Rent 569 "We have now fully considered the landlord's peculiar remedy to Tecover rent by distress ; but rent, like other debts, can be recovered b}' ordinary process of law, if the landlord prefer that to a distress. Formerly the process was distinguished according as it was based upon covenant or simple contract, express or implied, but these dis- tinctions, weakened b}" the Common Law Procedure Acts, have (as technicalities) ceased to exist since the Judicature Acts have come into operation. It will, however, be convenient to maintain the dis- tinctions (as regards terminology), as the terms may still be popularly used, and also because they are necessary to some extent when con- sidering who are tlie persons who can sue and be sued, and how the right of action is affected b}" the Statute of Limitations. Rent, then, may be recovered by proceedings based on — (1) Some express covenant in the instrument of demise, if under seal ; (2) Some express agreement contained in an instrument not under seal, or made by parol only ; (3) An agreement which the law will impl}' from the conduct of the parties. Sect. 1. — llccovery of Rent on the Covenant to pcuj it. Previous to the year 1845, no one could sue on a covenant unless Early Law. lie was a party thereto, or, at furthest, a legal representative or assign of a party (a) ; but by the Real Property Act, 1845, 8 & 9 Vict. c. 106, s. 5, it was enacted, that "under an indenture executed after the 1st day of October, 1845, an immediate estate or interest in any tenements or hereditaments, and the benefit of a condition or {a) Green V. Home, 1 Salk. 197 ; Berkeley Brown, 6 B. & C. 718 ; 5 L. J., K. B. 2.52 ; TT. Hardy, 5 B. & C. 355 ; 4 L. J., K. B. 30 R. R. 511 ; Bushcll v. Beavan, 1 Bing. 184; 29 E. R. 261 ; Lcl. Southampton y. K C. 103, 120. 36—2 564 Chap. XIII. — Eecoyery of Eent by Action. Ch. XIII.s. 1. covenant respecting any tenements or hereditaments, may be taken,. Action on Core- although the taker thereof be not named a party to the same oiantjor Eent. . ^ . indenture " ())). The law, however, remams the same as before with regard to a deed poll (c). Early Law. And even before the act an action might have been (and still may be) maintained by a party to an indenture against one who was not a party, but executed the deed {cl) ; and where B. assigned the lease of a house to A. by deed subject to certain covenants, and A. took possession, it was doubted whether B.'s remedy for a breach of the covenants was not b}' an action of covenant, although A. never executed the deed {e). On Covenants Where a deed is void, any covenant therein contained is void also, voidable ^^^ ^^^ action can be maintained for its infraction (/) ; but if the Deed. deed be merely voidahle, an action may be maintained for any breaches of covenant which happened before the deed was avoided (//). And we have already seen that the rule for construing leases is, that a proviso that the lease shall be void on breach of the covenants means that the lease shall be void at the election of the lessor (li). We have also seen that if the right to take legal proceedings on a covenant depends on the performance of a condition precedent, such condition must be shown to have been i3erformed (i). By or against An action for breach of covenant may be maintained by or against Action may the parties to the contract or their personal rejiresentatives, whether be maintained i\^q covenant be one which runs with the land or be merely a generally. . . . . ' personal covenant. With regard to the position of assignees, we have alread}' seen to what extent they have privity of contract or estate such as will enable them to sue {k). And it is oxAy necessary to note this, that when there is a right of action against both the lessee and his assignee, he can proceed to execution only against Proper Parties one (/). When there are two or more persons binding or bound by "^^T^tfn^+'r'"^ the covenant it must not be forgotten that where the words of a covenant are clearly joint, and not several, it will be so construed, although tlie interest may be several : and so vice versa {m) ; but where the words admit of two constructions, they will be construed to be joint or several, according to the interest («) ; and joinder or non-joinder of parties to any proceeding must be regulated accord- {b) Beeves v. Watts, 7 B. & S. 523 ; 178 ; Selbij v. Browne, 7 Q. B. 620 ; Load' L. R., 1 Q. B. 412 ; 35 L. J., Q. B. 171. v. Green, 15 M. k W. 216, 223. (c) Green v. Rome, supra. (/?,) See ante, Chap. V., Sect. 18. (d) Salter v. Kidglcy, Cartli. 76 ; Holt, [i) Ante, Chap. V., Sect. 8 (c). R. 211 ; Shower, 58; 2 Prest. Conv. 396. (li) Ante, Chap. VII., Seer. 3. (c) Hawkins v. Sherman, 3 C. & P. 459 ; {I) Cro. Jac. 423. but see Burnett \. Lynch, 5 B. & C. 589, (m) Ante, 169 ; Kos. Ev. 683 (16th ed.) ;; 602 ; 4 L. J., K. B. 274 ; 29 R. R. 343. and see Levy v. SaJc, 37 L. T. 709. (f) Smith V. White, L. R., 1 Eq. 626 ; {n) Ante, 169, 170; Bac. Abr. tit. Cove- 35 L. J., Ch. 454. nant (D) ; 1 Lush. Prae. 29 (3rd ed.). (gr) Hartshorne v. Watson, 4 Bing. N. C. Covenants. Sect. 1. — Action on Covenant for Eent. 565 ingi}'. Tims tenants in common and their representatives ought to Ch. XIII. s. l. ioin in an action for a covenant to pav rent (o), and to be so sued (o). Action on Cove- . „ , "...,,,, nant for Bent. "Where the interest of the covenantees is joint, although the cove- ;— nant is in terms joint and several, the action follows the nature —contd. of the contract, and must he brought in the names of all the covenantees (^). For example, in a lease of a colliery the two lessees covenanted "jointly and severally in manner following," viz. that, &c. ; then followed several covenants, after which was a covenant that monies due should be accounted for and paid by the lessees, their executors, &c. (not saying and each of them) : this and the former covenants were held to be several as well as joint (q). But the legal niceties to be found in the decisions are now of little importance, as b}' the Rules of the Supreme Court, Order XVI., Faile 13, ample means are provided for amendments in regard to j)arties. And the same remark will apply to the representatives in case •of decease, unless, of course, the covenant be specially made as a several covenant also (r). As to the persons who may sue or be sued if the landlord or Proper Partief5 tenant die, the matter has been sufficiently discussed already (s) ; ppath of and it mav suffice to notice that when the landlord has died, if the Landlord or . Tenant. rent was due before his death, his legal personal representative, and not his heir or devisee, has a right to sue on a covenant to pay rent, although such personal representative is not named in the ■covenant (0 ; but if the rent became due after the landlord's death the action must be brought b}' his heir or devisee (ii), that is, if the landlord was seised in fee ; for if he had only a chattel interest, of •course in all cases the rent must be recovered by his personal representative. And it must also be remembered that where the breach is after the death of landlord or tenant, the executor or administrator may be sued either as representative or assignee upon any covenant which runs with the land (x). The subject of the right of parties to sue on a covenant in the •case of assignment has been fully treated already (i/). The plaintiff in an action for rent based upon a covenant may Indorsement indorse his writ specially under Order III., Rule 6, of the Rules of ^ " " the Supreme Court, with the benefit of the various advantages in (o) Thohijjson V. Hahewill, 19 C. B., (a) Ante, Cliaii. YIL, Sect. 10. N. S. 713 ; 35 L. J., C. P. 18. (0 Esp. K P." 295 ; Liiaj v. Levincjton, (p) Pughv. Stringfidd, 3 C. B., N. S. 2 ; Ventr. 175 ; 2 Lev. 26 ; Dollen v. Batt, ^7 L. J., C. P. 34. 4 C. B., N. S. 760 ; 27 L. J., C. P. 281. [q) Luke of Nortliumheiicmd v. Erring- (u) Bac. Abr. tit. Covenant (E. 2). ioii, 5 T K. 524 ; 2 R. R. 666 ; Copland v. {x) See ante. Chap. Y., Sect. 8 ; Chap. Laportc, 3 A. & E. 517. VII., Sect. 10; and see Gorton v. Gregory, (r) Thomjmm v. EakxidU, 19 C. B., 3 B. & S. 90; 31 L. .J., Q. B. 302. N. S. 713 ; 35 L. J., C. P. 18 ; Foley v. (y) Ante, Chap. YIL, Sects. 2, 3. Addenbrooke, 4 Q. B. 107 ; Bullen, 49. 566 Chap. XIII. — Eecoyeey of Eent by Action. Ch. XIII. s. 1. Action on Cove- nant for Rent . Pleadings. Setting out Lessor's Title. Statement of derivative Title of Defendant. regard to speedy judgment on such a form of writ giYen b}' Order XIV. of those Rules : if that is not done, the indorsement " the plaintiff's claim if for i' for arrears of rent " will probably cover all claims for rent, strictly so called, however reserved or payable {£). The statements of claim and other pleadings will be subject to the same rules as in other actions, and must, to speak generally, set out such facts as will give the plaintiff a clear right of action. The action will be tried where the plaintiff proposes or where the preponderance of convenience suggests, as all local venues are abolished b}' the Rules of the Supreme Court under the Judicature Acts (a). By the Common Law Procedure Act of 1852 (15 &. 16 Vict, c. 76), Sched. B, No. 23, a short form .of declaration was provided for actions on covenants in a lease. The Rules of the Supreme Court under the Judicature Act provide a specimen statement of claim applicable to a simple case of non-repair, to which a claim for rent may be added (/_>). It is sufficient to "state the effect" of the covenant " as briefly as possible, without setting out the whole or an}' part thereof,^ unless the precise words " of the covenant " or an}- part thereof are material " (c). The defendant may easily obtain inspection of the whole lease if he choose {d). The lessor need not set out his title, for the lessee cannot deny it if he set it out ((?), although if the plaintiff's title be a derivative one only, he must show how he derives his title and from whom (/)^ and in the case of an executor or administrator suing those arrears of rent only which accrued due during the lifetime of the deceased can be recovered without showing the plaintiff's title (f/). If the statement of claim omits to state the lessor's title where that ought to be stated, the defendant may get it struck out or amended under R. S. C, Order XXVIII., Rule 1 (/() ; otherwise it will be sufficient, at least after verdict (/). AVhere the action is against an assignee of the lessee, it has never been necessary for the plaintiff to set out the several mesne assign- ments to the defendant, for they do not lie Avithin his knowledge, provided that he state the original demise, and that all the estate and interest of the lessee came to and vested in him (the defendant) (s) R. S. C. App. A., Part III., sect. 2. («) R. S. C. Order XXXVI., Rule 1. \h) See Appendix C, No. 9. (c) R. S. C. Order XIX., Rule 24. {d) R. S. C. Order XXXI., Rule 14. (e) Beckett v. Bradley, 7 iM. & G. 994 2 D. & L. 586 ; 4 Doug. 213. (/) SceBullen &L. PI. (4th ed.), Parti., p. 246. {g) Dollen v. Batt, 4 C. B., N. S. 760, 771. (7^) See Cuthhcrtson v. Irviiuj, 4 H. & N. 742 ; 6 Id. 135. (i) Hartis V, Bcavan, 4 Bing. 646. Sect. 1. — Action on Covenant foe Eent. 567 bv assignment (A'). It must, howeA-er, be shown tliat the defendant Ch. XIII. s. l. is the assiffuee of the term us well as of the premises, for otherwise ^ct^onon Cove- *^ IP nantjor Rent. it might be an assignment of another estate than the term of the lessee. And if the defendant be assignee of part onl}- of the demised premises he shoukl be charged accordingly, and not as assignee of the whole {I). With regard to any defence which the tenant may set up, it must Defences of be borne in mind that he cannot deny that his landlord had a good ^"'^^^t- title at the time of the demise (?»)» ^i^it he may show that his land- lord's title has ceased since the demise (w), and may dispute the title of a plaintiff whose claim is derivative onlv, as in such a case there is no estoj^pel operating against the tenant (o). Any set-off or counterclaim may be pleaded as in ordinary actions. Entry and e\dction may be set up in answer to an action for rent due under a covenant ( ^j) ; provided there be reall}- an eviction (r/), for which (it may be remarked) no physical expulsion is required (r), and eviction by a stranger, if lawful, may also be set up as a defence (s). Any tender of the rent must, to be an answer to the action, be made on the day when it is due {t). It appears to have been formerly held that a plea that the demand had been satisfied by distress was a bad plea when the action was on a covenant {u), but it would now be in any case probably upheld under the equitable jurisdiction possessed b}' all courts (.r). By the Civil Procedure Act, 1833, 3 & 4 AVill. 4, c. 42, s. 3, ''all Statute of actions of debt for rent upon an indenture of demise, all actions of 11 11 1 -1 1 n 1 Paqdw Fulcy. covenant or debt upon any bond or other specialtv, shall be com- menced and sued within twent}' years after the cause of such actions or suits, but not after." The Real Propert}- Limitation Act, 1833, 3 L^ 4 Will. 4, c. 27, s. 42, takes awa}' from an incumbrancer upon land in all cases the right of recovery as against the land for more than six years' arrears of rent or interest. The Civil Pro- cedure Act, 1833, 3 & 4 Will. 4, c. 42, s. 3, however, restores the [k) Bulleu k L. PI. (4tli ed.), Part I., {q) Dunn v. Di Xuovo, 3 M. & W. 105 ; p. 250. 3 Sc. N. K. 487. (Z) Grattan v. JFcdl, 2 I. R. Com. L. (r) Upton v. Townend, 17 C B. 30, 64 ; 484, Excli. 25 L. J., C. P. 44. {m) See Chap. \., Sect. 22, ante. (s) CtUhbcrtson v. Irving, supra; Jordan [n) Delancy v. Fox, 2 C. B., K. S. 768, v. Ticclls, Cas. temp. Hard. 172 ; see, too, and other cases. Chap. Y., Sect. 22, ante. 1 AYms. Saund. (ed. 1871)208, n. (2) ; Hill (o) Carrkk v. Blaarovc, 1 B. & B. 531 ; v. Saunders, 4 B. & C. 529 ; 28 R. R. Weld V. Baxter, 11 Exch. 816 ; 1 H. & X. 375. 568 ; 26 L. J., Ex. 112 ; Dollcn v. Batt, {t) Brownloiv v. Hcidcii, 1 Ld. Raym. 4 0. B., N. S. 76 ; Cuthbcrtson v. Irvincj, 83 ; Hume v. Pe2}loc, 8 East, 168 ; 9 4 H. & X. 742 ; 6 Id. 135 ; 1 Wms. R. R. 399 ; Poole v. Txmbridge, 2 M. & Saund. 233 a ; 2 Bing. N. C. 420, n. (2). AV. 223 : Dohic v. LaiMn, 10 Exch. 776. {p) Dalston v. Reeve, 1 Ld. Raym. 77 ; {u) Aldridgc v. Howard, 4 il. & G. Walker's case, 3 Co. R. 22 b ; Morrison v. 921. Chudwick, 7 C. B. 266 ; 13 L. J., C. P. {x) Judicature Act, 1873, sect. 24. 189. 568 Chap. XIII. — Eecovery of Eent by Action. Ch. XIII. s.l. Action on Cove- nant for Rent. Defence of Statute of Limitations — coutd. Defence of ille.^ality. Interest. Specialty Debt ranks with Sinijile Contract Debts. Limitation of Time. Defence of Satisfaction by Distress. personal remedy against the debtor on the covenant (y). Therefore, an action on a covenant for rent may be brought within twenty years, and is not limited to six years {z). It is now well established that so long as the relation of landlord and tenant subsists as a legal relation the landlord's right to rent is not barred by non-payment of rent for any length of time (a), although there be a limit on the amount of arrears recoverable. Any illegality in the contract will be an answer to the action, as, for instance, that the premises were knowingly let contrary to the Public Health Act, or for the purpose of carrying on a trade prohibited by statute (h), or for a brothel (c), or for purposes of prostitution (d), or for blasphemous lectures (e). Interest may be recovered on rent due on a fixed day as damages (/). The importance formerlv attaching to debts due under covenant, by reason of their priority over simple contract debts, in ranking against the assets of deceased persons, has been put an end to as regards the estates of all persons dying after the 1st of January, 1870, by the Administration of Estates Act, 1869, 32 l*v: 33 Vict. c. 46, popularl}' called '•' Hinde Palmer's Act." Sect. 2. — Action on Simple Contract for llent. Where the rent is payable under an express contract to pay it, but not under seal, the principles governing ordinary actions for the recover}' of money under a simple contract will apply, as will most of the rules already noticed in reference to covenants to pay rent, except in so far as the}- are peculiar to matters of specialty. But it must be particularly noticed that by the effect of the Limi- tation Act, 1623, 21 Jac. 1, c. 16, no rent under a simple contract promise to pay it can be recovered except within six years next after it has become due or has been acknowledged in writing. It is undoubtedly a good defence that the landlord has distrained, and from the distress has satisfied his claim for rent {g). A mere oral agreement to reduce the rent reserved will not create a new demise, and the full rent will still be recoverable {h). (y) Hunter v. Noc.kold, 1 iLic. k Gord. 640 ; 1 Hall & T\v. 644 ; Humfrcy v. Gery, 7 C. B. 567. (z) Pacjet V. Foley, 2 Ring. N. C. 679 ; Strachnn v. Thomas, 12 A. & E. 536 ; Manning v. Phelps, 10 Exch. 59. («) Archlwld v. Scully, 9 H. L. Cas. 360; 7 Jur., N. S. 1169; see, too, Jic Turner, 11 Irish Ch. Rep. 304. (6) Gaslifjht Co. v. Turner, 6 Bing. N. C. 324 ; Fliglit v. Clarke, 13 M. & \y. 155. (c) Sinilhv. White, L. R., 1 E(i. 626. (d) Pearcc v. Brooks, L. R., 1 Ex. 213 ; 4 H. & C. 358 ; 35 L. J., Ex. 134. (e) Cou-an v. Milbourn, L. R., 2 Ex. 230 ; 36 L. J., Ex. 124. (/) See Skerry v. Preston, 2 Chit. R. 245 ; 23 R. R. 747 ; 3 & 4 Will. 4, c. 42, s. 28. {g) Lear v. Edmonds, 1 B. & Aid. 157 ; 18 R. R. 448; ices V. JVright, 1 D. & R. 391 ; see also Ep'ord v. Bure/ess, 1 iloo. & R. 23. (h) 'Crowley v. Vitly, 7 Exch. 319 ; 21 L. J., Ex. 135 ; see Kelly v. Pattcrsan, L. R., 9 C. P. 681. I Sect. 3. — Implied Contract for Eent. 569 Sect. 3. — Implied Contract for Rent. Ch. XIII. s. 3. An action may also be maintained for the recovery of rent where ^^.^"^ ^L. ^^It there is no express contract to pay it, but the law will imply such a contract from some privity either of contract or of estate between the parties in relation to the subject-matter of the demise (i), and it is immaterial whether, if there be a demise, it be by deed, written contract not under seal, or parol only. It will be convenient in treating of this implied contract to distinguish between that which arises where there has been an actual demise in some form, and that which arises from use and occupation only, as in tlie latter case it is not strictly rent which is recovered, and the subject therefore is best treated separatel}'. Any words in a demise which are sufficient to create a privity of contract between the parties will enable the landlord to maintain an action on an implied contract to par the rent named, as, for example, where the words "yielding and paying" so much occur (A), and as between lessor and lessee an action can be maintained before any entry (/). The rules with regard to the necessity of setting out the titles of the parties {m) and other matters in the pleadings will be the same as in an action for rent due under a covenant. The limitation on actions on a contract implied from the demise will be twenty or six years according as the demise is under seal or not {n). (i) Ward v. Lumleij, 5 H. i X. 87, 327 ; and per Willes, J., in Smith v. ScoU. 656 ; 29 L. J., Ex. 322. 6 C. B., X. S. 781. (/;) See Boweii v. Hacjhes, 13 C. B. 765 ; (/«) Ante, 566. find see ante, Chap. lY., Sect. 5, and {ii) Civil Procedure Act, 1833, 3 & 4 Chap. IX., Sect. 2. Will. 4, c. 42. s. 3 ; Limitation Act, 1623, [I) Bellasis v. Burhrick, 1 Salk. 209 ; 21 Jac. 1, c. 16. 1 Ld. Rayni. 170 ; Bull v. Sihbs, S T. R. ( 570 ) CHAPTER XIY. COMPENSATION FOR USE AXD OCCUPATION. Sect. i'age 1. What it is, and when it ai'ises ... 570 2. By Avhom an Action is main- tainable 573 3. Against whom an Action is main- tainable 576 Sect. page 4. For wliat kind of Property an Action is maintainable 581 5. "Writ and Pleadings 5S1 6. Evidence 583 7. "What Amount can be recovered 585 Sect. 1. — IVIiat it is, and irJien it arises. We have now to consider the case of a relation of landlord and tenant existing without any arrangement at all for the payment of rent properly so called, and the case in which the law implies from the conduct of the jiarties a promise to compensate the landlord for his loss hy reason of the tenant's occupation of his ijremises. The action which can in such case be maintained is not to recover rent, but for damages due on an implied agreement to pay for the use of the landlord's property {a), and arises rather out of what may be called a quasi-tenancy than from the strict relation of landlord and tenant. To quote the words of Lord Ellenborough in The Dean and Chapter of lloehcsier v. Pierce {h), " The action for use and occupa- tion does not necessarily supjiose any demise ; it is enough that the defendant used and occupied the premises by the permission of the plaintiff." This form of action is at common law admissible where there has been an actual demise (c), but by virtue of the Distress for lieiit Act, 1737, 11 Geo. 2, c. 19, s. 14, the proof at the trial of a demise does not nonsuit the plaintiff, unless it be by deed (d), the rent reserved being used as a measure of the quantum of damages l^ayable to the plaintiff {e) ; and now the form of action is of little importance, especially as tlie powers of amendment at all stages of an action are now very large ( /'). It is, however, of importance to consider in what cases this compensation is payable when there is no contract of demise. It has been not uncommonly said that an action for use and occui^ation is always founded on some contract or {a) See Smith v. Eldridgc, 15 C. B. 236 ; Smith v. Ticuart, 2 M. & O. 841. {h) llochcstir {Dean) v. Pierce, 1 Camp. 466. (c) See per Bramwell, B., in Church- ward V. Ford, 2 H. & N. 446 ; see, too, Iteadc V. Johnson, Cro. Eliz. 242 ; Clerk v. Polady, Id. 809. {d) See also Dinujay v. Angovc, 2 Yes. 307 ; 2 K. K. 217. (e) See 6 A. cV: E. 839, n. (a). (/) R. S. C. Ord. XXVIII. See ion; Hanmer v. Flight, 24 "\V. K. 346 (C. P.). Sect. 1. — What it is, and when it arises. 571 promise, express or implied (//), but this is not strictly correct, as all Ch. XIY. -s. l. that the law savs is, that the proof of an express contract of demise t^«'^««'^ Ocm- _ '- _ pation (wliat is not to put an end to an action for use and occupation. It may be it is, and ivhcn more correct to sa^' that the defendant must have held or occupied ' the premises as tenant thereof to the plaintitf, or bv his permission ^°^ stiKtly ■■■ X . i louiiaed on or sufferance {li). In the absence of an express lease or agreement Contract for a lease at a fixed rent, where the premises have been used or P^^r*-'^' occupied by the defendant by the permission or sufferance of the plaintiff, the law will imply a contract or promise by the defendant to pay to the i^laintiff a reasonable sum for such use and occupa- tion (/). This is so notwithstanding there is a lease in writing containing a condition precedent which has not been performed by the plaintiff (A). Although not properly based on a demise, the claim for this com- pensation may be based on a mere agreement for a lease, coupled with proof of possession thereunder (/), notwithstanding such agree- ment be under seal; for, as was pointed out in Elliott \. Rogers (m), the tenanc}' is created by the entry with the plaintiff's permission, and not bv the deed(;»). The Distress for Eent Act, 1737, ii Geo. 2, . . c. 19, s. 14. 11 (ieo. 2, c. 19, s. 14, already referred to, is at first sight somewhat piain'titi' not ambiguous. The Avords of the section are as follows : "To obviate to be non- . , . . . . suited some difficulties that many times occur in the recovery of rents although where the demises are not hy deed, be it enacted that it shall and ^jli^'^^^'^ippeai. may be lawful to and for the landlord or landlords, where the agree- ment is not hy deed, to recover rt reasonable satisfaction for the lands, tenements or hereditaments licld or occupied by the defendant or defendants, in an action on the case, for the use and occupation of what was so lield or enjoyed ; and if in evidence on the trial of such action any parol demise or an}- agreement (not being by deed) whereon a certain rent was reserved shall appear, the plaintiff in such action shall not therefore be nonsuited, but may make use thereof as an evidence of the quantum of the damages to be recovered." It is clear after the decision in Elliott v. Ilogers, that "agreement" here must be read as equivalent to "instrument of demise," and not to an agreement for a demise as the term would (g) See Birch \. WricjTit, IT. K. 378, 295, explained in Churchivard \ . Ford, 2 387 ; 1 R. R. 223 ; see, too, the judgment H. & N. 416, 449, 450 ; see also Holfordv. in Beverley v. Lincoln Gaslight and Coke Hatch, 1 Dougl. 183 : Marwood v. Waters, Co., 6 A. k E. 829, p. 839, n. ; and 13 C. ^. 2SQ ; Hall v. Burgess, b 'Q. k C. Gibson V. Kirk, 1 Q. B. 850. 855 ; Church- 332. wardx. Ford, 2 H. & K. 446 ; 26 L. J., (k) Smith v. Eldridgc, 15 C. B. 236 ; Ex. 354. Smith v. Tivoart, 2 M. & G. 841. (h) Hee 3Iarquis of Camden v. Batter- [l) See,(ovexiiini)\e,Hick7aanv.Machin, bury, 5 C. B., N. S. 808 ; 7 M. 864 ; 4 H. & N. 716. 28 L. J., C. P. 335 ; Levi v. Leicis, 6 (m) Elliott v. Bogers, 4 Esp. 59 ; see, C. B., N. S. 766; 9 Id. 872. too. Bannister v. Ushorne, i'eake Ev. (0 Ilellicr V. Sillcox, 19 L. J., Q. B. 242. 572 Chap. XIV. — Use and Occupation. Ch. XIV. s. 1. Use and Occu- pation (what it is, and tvheii it arises). Action not maintainable where Defen- dant occupied as Tenant to another Per- son, or as Wrongdoer. ISTor before Entry liy the Lessee or Assignee. When the Title is in dispute. now be used. A landlord will also be entitled to sue for compensa- tion for the use and occupation of his property where a lease is not executed by the lessor, but the lessee enters and enjoys the property during the terra, as there is in such a case in truth no demise {n). Even a lease under seal, delivered formally as a deed but not intended to operate as such until the tenant pays 100^. for fixtures, &c., or performs some other condition, will be considered only as an escrow, and will not prevent an action for use and occupation (o). To entitle a man to this compensation there must have been some tenancy, express or implied, between the plaintiff and the defendant during the period in respect whereof the compensation is claimed, and it is not enough that the plaintiff was reall}' entitled to the propert}^ {p). For example, where the defendant occupied as tenant to another person, from whom he obtained the possession {q), or as a mere wrongdoer or wilful trespasser (/•), no such action could be maintained. A lessee who has never entered to take possession as tenant (.s), or an assignee of the term who has never entered to take possession as such, will not be liable to an action for use and occupation {i), as the tenant in such cases has a mere interesse termini. Entry, however, by one of several persons jointly entitled will suffice to render all liable (»). So a husband is not liable to an action for use and occupation to pay for the enjoyment of a house b}'^ his wife dum sola ; such occupation not having been by him, nor at his request {x). It has once been held, that an action for use and occupation will not lie where the title is in dispute, ejectment being the proper remedy. This was decided in a case before the Court of King's Bench by Lord Kenyon, C.J., wherein the action was brought against the tenant for rent, while the heir at law and a devisee were contesting their right to the premises {y). But it is to be observed that the ejectment could not be maintained in such case, either by the heir or the devisee, because the outstanding term in the defendant would afford a complete defence to such action, and it mav be now («) See PtY?na?i V. Woodbury, 3Exch. 4 ; Swaiman v. Ambler, 8 Exch. 72 ; Hoiv v. Greek, 3 H. & C. 391 ; Si L. J., Ex. 4. (o) Gudgeon v. JScsseft, 6 E. & B. 986 ; MiUership v. Brookes, 5 H. & N. 797. (2}) Marquis of Camden v. Batterbury, supra {h) and infra (q). (q) Cripps v. BkmL 9 D. & R. 480 ; Marquis of Camden v. Battcrburv, 5 C. B., N. S. 808 ; Id. 864 ; 28 L. J., C. V. 335 ; ChurcJncard v. Ford, 2 H. & N. 446. {?•) Teiv V. Jones, 13 M. & W. 12 ; Turner V. Cameron's Coalbrook Steam Coal Co., 5 Exch. 932 ; Churchtcard v. Fvrd, .supra. See, too, Levi v. Leicis, 6 C. B., X. S. 706 ; 9 Id. 872. (s) Edcje V. Strafford, 1 C. & J. 391, 398 ; Lowe v. Ross, 5 Exch. 553. See, also, Toime v. UHeinrich, 13 C. B. 892 ; 22 L. J., C. P. 219 ; Woolley v. Watliny, 7 C. & P. 610 ; Jones v. Reynolds, Id. 335 4 A. & E. 805. [t) How V. Kcnnett, 3 A. & E. 659 Loii:e V. Ross, 5 Exch. 556 ; Jones v. Reynolds, 7 C. & P. 335. (k) Electric Tcleyrajjh Co. v. Moore, 2 F. & F. 363. See, too, Glen v, Dangey and Another, 4 Ex. 61. (.r) Richardson v. Hall, 1 Brod. & B. 50. {y) MS. Hil. T. 27 Geo. 3. Sect. 1. — "What it is, and when it arises. 573 taken to be the law that the proper remedy is by distress (z), or by Ch. XIY. s. l. action for rent, or for use and occupation (according to the nature l^se and Ocm- 2)ation {ivliat it of the demise) lor the rent {a). Indeed it not unirequently happens is, andivhen in actions for use and occupation that the phiintiff's title to the << arises). rent, as reversioner or otherwise, is the very point to be decided {h). Sect. 2. — By ivhom an Action is maintainahle. The Distress for Rent Act, 1737, 11 Geo. 2, c. 19, s. 14, By "the authorized "the landlord or landlords" to maintain an action on Laudloids." the case for use and occupation (c), and this agrees with the common law in actions of debt, and now applies to all actions for use and occupation. In order, therefore, to recover this compensation the plaintiff must show that he is landlord of the defendant in respect of the premises held or occupied by him. It is not sufficient that the plaintiff has a good legal title to the property Avhich would enable him to maintain ejectment ; but some possession or enjoyment, such as to amount to a letting at least by implication, must be proved (d). Therefore the owner of land cannot recover this compensation against a mere wrongful trespasser (c), nor against a j^erson who occupied as tenant to another person from whom he obtained the possession (;) Remnant v. Bremridge, 8 Taunt. (r) Fhip2^s v. Sculthorjoc, 1 B. & A. 50 ; 191 ; 19 R. R. 495 ; Kcarsley v. Oxlcy, 2 Dawsony. Lamb, 3 C. & K, 269. But not H. & C. 896. the original tenant : Laurancc v. Faux, 2 {y) Nixon v. Quinn, 2 Ir. Com. L. R. r. & F. 435. 248. (s) H7jde V. iMoal-es, 5 C. & P. 42. (2) Nation v. Tozcr, 1 C, M. & R. 172 ; (0 Dawson v. Lamb, 3 C. & K. 269. cited 3 A. & E. 667. {u) Beak v. Sanders, 3 Bing. N. C. (a) Patten v. Jieid, 6 L. T. 281, Q. B. 850. ■ (b) Ante Chap. VII., sect. 7, p. 286. 37—2 580 Chap. XIV. — Use and Occupation. Ch. XIV. s. 3. Use and Occu- pation {agaitist whom main- tainaMc). Church- wardens and Overseers. Intended Lessee. Intended Purchaser liable for tlie same as tenants (c), where they have actuall}^ used and occupied land, for a corporate purpose, by the permission of the owner ((?). But as they cannot bind themselves by an executory contract, not under their common seal, they will be liable for use and occupation during such period as they actually occupy, and not afterwards under any implied tenancy from year to year (e). Churchwardens and overseers, if in occupation of land not rented for parochial purposes alone (and therefore not protected by 59 Geo. 8, c. 12, s. 12), will be liable personally to pay for the same (/). We have seen that a person who has entered into jJossession under a mere agreement for a lease, which has never been granted, is liable to be sued for use and occupation (g) ; therefore, where the defendant in expectation of a lease by indenture, which he had agreed to take from the plaintiff, procured attornments from some of the tenants and received rents from others, it was held, that he was liable for use and occupation (//). Where the defendant was let into possession of premises provisionally, with a view to an agreement for occupying them, which he afterwards refused to sign, he was held liable to pay for the period of the occupation (?'). But where the defendant entered under an agreement for a future lease, which it afterwards appeared the plaintiff was unable or unwilling to grant, the defendant was relieved from liability to an action for use and occupation, although he had received some of the rents from the sub-tenants (k). Wliere the vendee of an estate sold by auction or otherwise has been suffered to enter upon and hold the premises while the title was under investigation, and the contract has afterwards been determined for want of title, the vendor cannot, on these grounds only, recover for use and occupation, although the jury find that the occupation has been beneficial (l) : or that he has received rent from the sub-tenants {in). But if the vendee retain possession after the contract for purchase has gone off, he will be liable for the subsequent use and occupation {n). (c) Beverley v. Lincoln Gaslight and Coke Co., 6 A. k E. 839, 843 ; and the 1 ight seems to have been assumed in Green V. London Cemcteri^ Co., 9 C. & P. 6. [d) Louie V. London and North Western R. Co., 18 Q. B. 632 ; 21 L. J., Q. B. 361 ; MarkJiam v. Stanford, 14 C, B., N. S, 380 ; Willes, J. (c) Fiiilay V. Bristol and Exeter R. Co., 7 Exch. 40y ; see, too, Copper Miners Co. v.Foa-, 16 Q. B 229. (/) Uthwatt V. Elkviis, 13 M. &W, 772: and see Furnival v. Coombcs, 5 M. & G. 736. {a) Smith v. Eldridge, 15 C. B. 236 ; Dowes V. Bowling, 31 L. T. 65. {h) Neale v. Swind, 2 C. & J. 377. (i) Coggan v. Warwicker, 3 C. & K. 40. {k) Rumlall v. Wright. 1 C. & P. 589. (/) Winterhoitom v. Ingham, 7 Q. B. 611 ; Kirtlnnd v. Pounseit, 2 Taunt. 146 ; Hcarn v. Tomlin, Peakc, N. P. C. 192, 253 ; 3 R. R. 684 ; Corriaan v. Woods, 1 Ir. Com. ].. R. 73 ; 15 "\V. R. 318. (m) Rumhall v. Wright, 1 C. & P. 589. (7i) Ilovard v. Shau; 8 M. & W. 118. Sect. 3. — Against whom Action maintainable. 581 The fact that the vendor remains in possession of part of the Ch. XIV. s. 3. i^vopertv after the execution of the conveyance, does not thereby ^^^<^ /^^d Omi- J- '■ ^ '' , '' pation [against malie him a tenant to the purchaser (even at sufferance), nor in any u-hom main- way liable to him in action for use and occupation. The purchaser's ^"'^ ' ^'' remedy in such a case is by an action to recover possession of the ^^n'^^oi' re- •' ' '- maining m land and mesne profits (o). Possession not liable. Sect. 4. — For what kind of Property the Action is maintainable. This right to recover compensation for use and occupation is not Compensation confined to land and houses, or the like, but will extend to any foi-'use^nd hereditament, corporeal or incorporeal : such, for example, as a Occupation of fishery (j)) ; a right of fishing with rod and line (q) ; a right of Property, shooting (r) ; and of hunting (s) ; a mine with liberty to dig (t) ; a coal pit (») ; a watercourse and weir (x) ; a way (y) ; tithes ; a pew ; seats in a Jewish synagogue (z) ; a seat in a house to view a procession ; the saloon of a theatre with a right to supply refresh- ments (a) ; and furnished or unfurnished lodgings {h). Sect. 5. — Writ and Pleadings. Much of the learning with regard to actions for use and occupa- Form of tions, which under the former system of pleading was of great of Writ™^° importance, has become obsolete since the Judicature Acts came into force in 1875. The old form of words is to some extent still preserved in the indorsement of writs ; the Schedule to the Eules of the Supreme Court (c) giving the form, "the plaintiff's claim is £ for the use and occupation of a house." There is also a form given (c), "The plaintiff's claim is for £ for arrears of rent " ; and the former will be the more correct indorsement where the money claimed is not strictly rent — i.e. is not due under any actual demise : but the writ may be amended by leave at an}' stage of the proceedings (d). As far, however, as the pleadings are Pleadings, concerned the law now requires them to be a statement of facts, and therefore the technical forms are no longer of importance, and it is (o) Tew V. Jones, 1-3 M. & AV. 12. (x) Davis v. Morgan, 4 B. & C. 8 ; 28 ill) See the repealed C. L. P. Act, E. R. 193. 1852, 15 & 16 Vict. c. 76, Schedule (B), (y) 2 Chit. PL (7th ed.), 39, 40, 41, Form 10. (s) Israel v. Simmons, 2 Stark. 356. [q] Holford v. Pritchard, 3 Exch. 793. («) Drury Lane Theatre Co. y. Chapman, (r) Thomas v. Fredericks, 10 Q. B. 775. 1 C. & K. 14. (s) Bird V. Higijinson, 2 A. & E. 696 ; [b) 2 Chit. PI. 41. 42 ; Cook v. Moylan, 6 A. & E. 834. 1 Exch. 67 ; 5 D. & L. 101 ; Izon v. Gor- (0 Jones V. Reynolds, 4 A. & E. 805 ; ton, 5 Bing. N. C. 501. 7 C. & P. 335. (c) R. S. C. App. A., Part II., s. 2. [u) Lees V. Wright, 1 D. & R. 391. {d) R. S. C. Order XXVIL, Rule II. 582 Chap. XIV. — Use and Occupation. Ch. XIV. s. 5. Use and Occu- pation ( Writ and Flead- ings). Estoppel. enougli if tlie statement of claim allege facts which show an entry and occupation and a relation of landlord and tenant between the parties. The defendant will be in the same position as if there had been an actual demise as regards an}^ right to set up that the i^laintiff had no title when he the defendant entered, a defence which, as we have seen, is not open to him (e), though he may show that it has since come to an end (/). Thus if the defendant obtained possession of the premises from the plaintiff as tenant thereof to him, he is thereby estopped from disputing the plaintiff's right to dispose of such possession {g). The principle is, that the defendant, having had the use, occupation and enjoyment of the premises by the permission of the plaintiff, cannot deny the plaintiff's title to dispose of the possession during the j)eriod of such occupation as an answer to the claim for com- pensation {h). If the steward of a person not named says to another, "I let you into possession in the name of the landlord" (not mentioning the name) ; parol evidence is admissible to show who such landlord is, and the tenant who so obtained possession is estopped from denying such landlord's title (i). But in any such cases the defendant may show that after the demise, and before any part of the rent claimed became due, the plaintiff assigned his reversion (A) ; or that the plaintiff's title was defeasible, and was legally defeated after the demise and before the rent claimed became due (/). If the defendant obtained possession from A. B. as his. tenant, and the plaintiff derives his title from A. B., the defendant is estopped from disputing the right of A. B. to dispose of such possession {m), and also from disputing A. B.'s right to assign the reversion {n) ; but the assignment itself may be disputed (o). If the defendant has expressly attorned to the plaintiff, he will thereby be* estopped from disputing the plaintiff's title, unless such attornment be proved to have been obtained by fraud, or through some mistake of facts {p). Where a tenant was let into possession by A. and paid him rent, and afterwards A. agreed to grant a lease to B., who then received one quarter's rent from the tenant, but afterwards the {c) Lcicis V. Willis, 1 AVils. 314 ; Curtis V. Spittij, 1 Bing. N. C. 15. (/) Newport v. Hardy, 2 D. & L. 921 ; see, too, Boodle v. Cam2Jhcll, 7 M. & G. 386 ; Sclby v. Browne, 7 Q. B. 620 ; Hartsliorne v. JVatsou, 4 Bing. N. C. 178. ig) Fleming v. Gooding, 10 Bing. 549 ; Cooper V. Blandy, 1 Bing. N. C. 45 ; Cooke V. Loxlcy, 5 T. R.. 4 ; 2 R. R. 521. (/i) See Agar v. Young, Car. & M. 78. (z) Fleming v. Gooding, 10 Bing. 549. (k) Harmer v. Bean, 3 C. & K. 307. {I) Mountncy v. Collier, 1 E. & B. 630 ; 22 L. J., Q. B. 124 ; Poiocll v. Hihhert, 15 Q. B. 129 ; 19 L J., Q. B. 347. {m) Palmer v. Ekins, 2 Ld. Raym. 1550 ; 2 Stra. 817 ; Bringloc v. Goodson,. 4 Bing. K C. 726. (m) Rennicw. liohinson, 1 Bing. 147; 1 L. J., C. P. 30 ; 25 R. R. 604 •" Sturgeon V. Wingficld, 15 M. & W. 224 ; Doe d. Marriott v. Fdwards, 5 B. & Adol. 1065. (o) Phillips V. Pearee, 5 B. & C. 433 ; 29 R. R. 284, ( ;;) Fliijjps v. Sculthorpe, 1 B. & A. 50 ; 18 R. R. 428 ; Doe d. Murloio v. WigginSy 4 Q. B. 367 ; ante. Sect. 5. — Writ and Pleadings. 583 agreement between A. and B. was rescinded : it was held that, in an Ch. XIY. s. 5. action by B. for use and occupation for the next quarter's rent, the ^^se and Occii- •' ^ , ' , patton ( TFrtt tenant was not estopped from showing these facts, whereby the parties and Flead- were remitted to their original rights (^2). "^^ It is a good defence to plead the Statute of Limitations where the The Statute of defendant was formerly tenant from year to 3'ear, and quitted with- '"^^ ^ ^*^^^' out due notice, but has not, within six years before the action, occupied the premises, or paid any rent, or done any act from which a tenancy can be inferred (r). It is also a good defence as to any rent which became due and payable more than six j^ears before the commencement of the action. The defendant ma}" also show that the plaintiff's title to the reversion has been barred and extinguished under 3 & 4 Will. 4, c. 27 (s). But so long as the relation of land- lord and tenant subsists, the right of the landlord to rent is not barred by non-payment, except that under sect. 42 the amount to be recovered is limited to six years {t). Sect. 6. — Evidence. We have seen that to entitle a plaintiff to recover compensation Relation of for the use and occupation of his property it must appear that there Tenaut^*^ ^^ was a relation of landlord and tenant between the parties ; there may, however, be various modes in which this may be proved for the purposes of an action ; an admission of the tenancy by the defendant, b}' submission to a distress, advertisement of himself as tenant or otherwise, is prima facie evidence against him (»), but may be rebutted by sufficient evidence to the contrary (.r). Evidence Occupation, that the defendant has actually occupied the premises, will be prima facie sufficient {y). Payment of rent is a sufficient recognition of Payment of the landlord's title to support the action, although it appear upon the evidence on the part of the plaintiff that the defendant originally came in under another person, or that the plaintiff has only an equitable estate {z). In one case the defendant and his predecessors in estate had paid to the plaintiffs and their predecessors, overseers of the poor of the township of S., an annual sum of Ql. 14s. Sd., expressed to be for rent for common lands, and it was admitted that the defendant was in possession of the lands out of which the rent issued, but they were not identified, and there was no evidence given of their extent or value, and the defendant would not produce (?) Brook V. Biggs, 2 Bin;,'. IST. C. 572. R. R. 757 ; Cooper v. Blandy, 1 Bing. (r) Leigh v. Thornton, 1 B. & A. 625 ; N. C. 45 ; Sullivan v. Jones, 3 C. & P. 19 R. R. 407. 570 ; Hill v. Ramm, 5 M. & G. 789. (s) Fursdonv. Clogg, 10 M. & W. 572. (x) Cox v. Knight, 18 C. B. 645; 25 (0 Archhold v. Sculhj, 9 H. L. Cas. L. J., C. P. 314. 360 ; 7 Jur., N. S. 1169. (?/) Harland v. Bromley, 1 Stark. 455. (m) Panton v. Jones, 3 Camp. 372 ; 14 [z) Dolby v. lies, 11 A. & E. 335. 584 Chap, XIV. — Use and Occupation. Ch. XIV. s. 6. Z^se and Occu- pation {Evi- dence). Judgment in previous Action for Use and Occupa- tion. Notice to quit given by Defendant. Evidence of Entry of Defendant as Tenant. Surrender. his deeds pursuant to notice : it was, however, held, that there was evidence on which a jury mic^ht find that a relation existed between the parties such as to entitle the plaintiffs to recover for use and occupation (a). A judgment in a previous action for use and occupation between the same parties is prima facie evidence that the defendant occupied by the sufferance of the plaintiff : but it is not conclusive, and the jury ought to take into their consideration all the circumstances under which that judgment was obtained (h). The correctness or validity of such judgment can be questioned only in a court of appeal (c) : and parol evidence will probably always be admissible to show in respect of what premises, and for what rent such judg- ment was recovered (d). But a previous judgment against two persons is no evidence in another action against one of them only for subsequent use and occupation (e). A notice to quit given b}^ the defendant is admissible evidence that the defendant held the premises therein mentioned as tenant thereof to plaintiff (/). We have also seen that there must be an cntri/ as tenant ; for example, if a party to whom a mining lease is granted enter and dig holes merely to ascertain what sort of a bargain he has made, or is about to make, and has them filled up again immediately^ that does not amount to an entry to take possession as tenant (g). But where a party who had agreed to rent a house sent in a woman to clean it, and workmen to paper one of the rooms, that was held sufficient evidence to go to the jury of a taking possession as tenant (h). So where, after an agreement for a lease, the intended lessee entered and put up a board stating " tbis house to let, inquire, &c. ; " this was held to be sufficient evidence to go to the jurj- of a taking possession as tenant (?'). If the landlord prove that a tenancy commenced and entry was had, the burden is then on the defendant to show that it has been determined before the time for which compensation is claimed (A). Tlie defendant may prove a surrender of his term to the plaintiff before any of the rent claimed became due ; such surrender may be by deed, or by the acceptance of a new lease, or by other act and operation of law (?) . (a) Hardon v. Hcskcth, 4 H. & N. 175 ; 28 L. J., Ex. 137 ; compare this case with Alt. -Gen. V. Stephens, 6 De Gex, M. & G. Ill ; 2.5 L. J., Ch. 888. (6) Per Coleridge, J., Jones v. Reynolds, 7 C. & r. 3.35. (c) 9 C. B. 333 ; Dick v. Tolhausen, 4 H. & N. 695. {d) See, as to the right to reopen a verdict, Seddon v. Tutoj), 6 T. K. 607; 3 R. E. 274 ; Preston v. Peeke, E., B. & E. 336 ; 28 L. J,, Q. B. 424,427. (c) Christy v. Tancrcd, 9 M. & W. 438 ; 12 M. & W.' 316. (/) Marston v. Dean, 7 C. & P. 13. ((/) Jones V. Beynolds, 7 C. & P. 335. (A) Smith V. Ticoart, 2 M. & G. 841. (0 Sullivan v. Jones, 3 C. & P. 579. (k) Ward v. Mason, 9 Price, 291. (/) See ante, Chap. YIIL, Sect. 3. Sect. 6. — Evidence. 585 The defendant may prove that he gave due notice to quit and Ch. XIV. s. 6. quitted accordingly before the commencement of the period in respect ^^'^ ""^ ,^^^"" . . rr . . pat ion [Evi- whereof the rent is claimed (;«)• Whether the notice to quit was dence). sufficient and served in due time is sometimes the real question to j^otice to be decided in this form of action {n). Such notice is sufficient if ^i^"^^' ^^■ given to the plaintiff's authorized agent, or sent to him by post in due time (o). Where a tenant from j'ear to year, at a rent payable half- yeai'ly, quitted at the end of a current year without giving notice, and the landlord before the end of the next half-year re-let the premises to another tenant : held, that such re-letting amounted to an eviction of the first tenant, and that the landlord could not maintain use and occupation against him for any rent subsequent to the period when he quitted (_/>). But the entry by the landlord must be for the i^urpose of a profitable occupation, and therefore if he enters and puts a bill in the window for the purpose of re-letting the premises, but not to retake possession, that will not be sufficient to prevent him recovering subsequent rent from a tenant who quitted without notice (q). Sect. 7. — What Amount can be recovered. As the presumption, when a landlord proceeds to recover com- What can be rccovcrG(i« pensation of this kind, is, that no specific rent has been agreed on, he may recover in this form of action a reasonable satisfaction for the use and occupation of the lands, tenements, or hereditaments held or occupied b}' the defendant as his tenant, or by his permission or sufferance (r). No inquiry is made as to the profit resulting from the cultivation, or as to the property being cultivated at all (s). He who holds another's premises with his permission, but without an express bargain as to the rent, agrees to pay what a jury may find the occupation to be worth. This is a principle resulting from the nature of an action for "use and occupation "(t). Such "reasonable satisfaction" accrues, like interest, de die in diem according to the time of the actual occupation (»). Where it turns out that a si)ecific rent has been agreed on, payable Where a quarterly, half-3'early or yearly, such rent is the proper measure of agreed on. damages ; and the lease (if not under seal) or the written agreement, (m) Bird v. Dcfonvillc, 2 C. & K. 415. (r) Tnmlinson v. Day, 2 Brod. ct B. In) Bcssell v. Landsbcrg, 7 Q. B. 638 ; 68U ; 23 R. K. 541. Papillon V. Brunton, 5 H. & N. 518. (v) 1 Man. & Gr. 312, n. {a). (o) Papillon v. Brunton, supra. (0 Mmior of Thdford v. Tyler, 8 Q. B. (;j) Hall V. Burgess, 5 B. & C. 332. 100 ; 15 L. J., Q. B. 33. (>/) Ikdpath V. Boberts, 3 Esp. 225, («) Slack v. Sharpe, 8 A. & E. 373 ; Kenvon, C.J. ; Biirl v. Drfonville, 2 Kirkman v. Jervis, 7 Dowl. 678 ; Backer C. &K. 415, Erie, J. v. Gibbins, 1 Q. B. 421. 586 Chap. XIV. — Use and Occupation. Ch. XIV. s. 7. Use and Occu- pation {what Amotmt can be recovered). After an Eviction from Part. Where Plain- tiff has not performed a Condition precedent. Where the Tenant agrees to pay Rent pro Rata. Where the Tenant has ceased to occupy. if duly stamped, may, as we have seen, by the Distress for Rent Act, 1737, 11 Geo. 2, c. 19, s. 14, be used as evidence of the quantum of damages to be recovered {x), and of the time at which such rent became paj'able. It makes no difference in this respect that the agreement is void as to the duration of the term therein mentioned, either by the Statute of Frauds or the Real Propert}^ Act, 1845, 8 & 9 Vict. c. 106, s. 3 {y) ; nor that the defendant was and is a lunatic {z). But if the defendant has not had the use and occupation of all the premises agreed to be demised, or if there had been an eviction from part, by reason of a defect in the plaintiff's title, the jury may ascertain the value of the occupation of the land actually enjoyed, without regarding the amount of rent reserved by the agree- ment {a). So where the plaintiff has not performed a condition jire- cedent on his part, ex. gr, to do certain repairs (6), to furnish the house or apartments in a specified manner (c), or the like, the jury may find how much the actual occupation by the defendant, in the then state and condition of the premises, was reasonably worth. The landlord in such case could not recover or distrain for the agreed rent (d). Where there was an agreement to pay rent quarterly, and there was an effective sui'render before the quarter day, it Avas held that the landlord could not recover for use and occupation during the broken period subsequent to the quarter da}' (c), but it is conceived that aright to recover has been given by the Apportionment Act (/). If, however, it be mutually agreed to put an end to a tenancy during a current quarter, the tenant to pay pro rata at that time, and the land- lord accordingly retakes possession, the amount so agreed to be paid may be recovered in an action for use and occupation (g). So where the tenant holds over for a week after such an agreement has been come to, and then quits possession, and the landlord then accepts possession, the rent to the end of the week may be recovered, together with an}- previous arrears of rent pro rata (/() : but the landlord cannot recover as for any subsequent use and occupation (O- If the term or tenancy as agreed on has commenced (the tenant having entered), the lessee or tenant will be liable to all the rent as (,r) Ante, Sect. 1. (V) -De Medina v. Poison, Holt, N. P. C. 47 ; CollcU V. Curlinci, 10 Q. B. 785 ; 5 D. &L. 605 ; Viscount Duivne v. Thompson, 9 Q. B. 1044. (s) Bane v. Viscountess Kirkwall, 8 C. & P. 675. (a) Tomlinson v. Day, 2 Brod. & B. 680 ; 23 R. R. 541. {h) Smith V. Eldridgc, 15 C. B. 236 ; Smith V. Twoccrt, 2 M. '& G. 841. (c) Mechelen v. Wallace, 6 N. & M, 316 ; 7 A. & E. 54, n. {d) Mechelen v. Wallace, supra. (c) Grimman v. Legge, 8 B. & C. 324 ; 2 M. & R. 438 ; 6 L. J., K. B. 318 ; 32 R. R. 398. (/) See32R. R.398, n.,andp. 434, ante. (g) Thomas v, Williams, 1 A. & E. 478. (A) Kirkman v. Jervis, 7 Dowl. 678. (0 Whitehead V. Clifford, 5 Taunt. 518 ; 15 R. R. 579. Sect. 7. — What Amount can be recovered. 587 agreed, notwithstanding he has ceased to occui^y (k) : unless indeed Ch. XIV. s. 7. something has since happened to put an end to the term or tenanc}', ^*^ '^"'^ (^^^'*- ex. gr. a surrender by deed or by act and operation of law (1). Amount ccm be It is clear ujjon the authorities, that even if the premises be recovered). destroyed by fire, the whole rent will, if a rent has been agreed on, After a Fire, be paj'-able ; unless indeed it has also been agreed that if a fii-e ^~'^''^^'- Gorton. destroy the premises the rent shall cease (in), in which case a pro- portionate part may be recovered for the time the premises are actually in use {n). If, however, there is no contract for rent, and the landlord is left to recover compensation for use and occupation, he is (as we have seen {n)) only entitled to such sum as a jury shall find to be a reasonable compensation, and the loss of the buildings by fire might, it is presumed, be taken into consideration by the jury in fixing the sum to be paid ; and the same principles will apply if a part only be destroyed by fire (o). AVhere a tenancy is continued beyond the time for which the pre- When mises were originally taken, and nothing is arranged resj^ecting the i^gld over. amount to be paid on the new holding, that new holding is not of necessity to be on the same terms as the former, but the jury may give the landlord a larger sum for the continued occupation, if there be circumstances to show that such increased rent was expected by him in the event of the tenant holding over, and that such expecta- tion was known to and not repudiated by the tenant {p). For instance, where a 3'early tenant at 47/. per annum continued in pos- session after the determination of his tenanc}' and during negotiations for a new lease at 80/. per annum, which ultimatel}' went off, it was held, that it was a question for the jury what rent was fairly payable for the continued holding {q). In such a case the land- lord should not distrain, but may maintain an action for use and occupation (?■)• The defendant will not be entitled to any reduction of rent in N'o reduction respect of acts done by a third person which reduced the value of his reason of Acts occupation, but which were done without the authoritv of the plain- of Third tiff (s) : as where the demised premises are "injuriously affected ' (but no part thereof taken) by a railwaj' or other company pursuant to their special act or any act incorporated therein {t). (k) Ante, Sect. 3. {p) Elgarx. Watson, Car. & M. 494. (I) Whiteheads. Clifford, sn-^^vn.; Grim- (q) Mayor, d-c, of Thetford v. Tyler, 8 TTMn V. Lcgge, 8 B. & C. 824 and (c) ; Hall v. Q. B. 95. Burgess, 5 B. & C. 332 ; Ward v. Mason, (r) Alford v. Viccry, Car. & M. 280 ; 9 Price, 291. Jcnncr v. Clegg, 1 Moo. & R. 213. (m) Baker v. Holtpzaffcll, 4 Tannt. 45 ; (s) Drury Lcmc Theatre Co. v. Cliap- 13 R. R. 556 ; Izon v. Gorton, 5 Bing. man, 1 C. & K. 14. N. C. 501. {t) As to the compensation recoverable (n) Ante, 587. hy the tenant from tlie company in such (o) Bennet v. Ireland, E., B. & E. 326 ; case, see Lands Clauses Consolidation Act, 28 L. J., Q. B. 48. 1845 (8 & 9 Vict. c. 18), ss. 119—121. 588 Chap. XIV. — Use and Occupation. Ch. XIV. s. 7. Use and Occu- pation (what Amount can he recovered) . Effect of Judgment by Default. Prior to the Judicature Act, where the defendant suftered judgment by default in an action for use and occupation, a writ of inquiry appears to have been necessary {u). And as, if the action is strictly one for use and occupation, it is properl}^ for such a sum as shall be found to be a reasonable compensation, a writ of inquir}-^ or other mode of trial would seem to be still necessary {x). {n) Ardcn v. Council, 5 B. &: A. 885 ; Coote, L. & T. 504. (a-) R. S. C. Order XIII., Rule 6 ; Order XXIX., Rule 4. By the former of these rule.s, "where the defendant fails to appear to the writ of summons, and the plaintiff's claim is not for a debt or liqui- dated damages only, but for detention of goods, and pecuniary damages, or either of them, no statement of claim need be delivered, but interlocutory judgment may be entered, and a writ of inquiry shall issue to assess the value of the goods and the damages, or the damages only, as the ease may be, in respect of the causes of action disclosed by the indorsement on the writ of summons." The rule proceeds to provide that the damages may by order be ascertained "in any way in which any question arising in an action may be tried." Order XXIX., Rule 4, provides a similar process in case of default of pleading. ( 589 ) CHAPTER XY KATES, TAXES, AND ASSESSMENTS. Sect. page 1. Contracts as to Eates and Taxes 589 2. Rating of Landlord instead of Tenant, by Statute 597 3. Property Tax 599 4. Land Tax 601 5. Sewers Rates 604 6. Poor Eates 606 7. House Tax 610 8. County Rates 610 9. Borough Rates 611 Sect. page 10. Highway Rates 611 11. " District " Rates, &e 612 12. Ligliting and Watching Rates... 616 13. Water Rates 616 14. Gas Rates 619 15. The Rating Act. 1874 620 16. Tithe Rent-charge 620 17. Half-rating of "Agricultural" Land 624 Sect. 1. — Contracts as to Rates, Taxes, dx. The ordinaiy rule is, that rates and taxes fall upon the tenant, in the absence of express agreement. In addition to this, the ordinary express agreement is that the tenant pay all rates, taxes and assessments. Sometimes, however, they are thrown partly upon the landlord and partly upon the tenant, the agreement being construed according to the real intention of the parties (a). Such stipulations are seldom interfered with by the legislature, which usually provides that "nothing in this act con- tained shall be construed to alter, change, determine, or make void any contracts, covenants, or agreements whatsoever between land- lord and tenant, or any other persons, touching the payment of taxes and assessments," or to that effect {h). But the property tax always formed an exception to the general rule {c) ; and more than one recent statute has either imposed a burden wholly on the landlord, or shared it between the landlord and the tenant ((^0- Generally Avhere a tenant covenants to pay a rent without deducting taxes, a subsequent statute authorizing tenants to deduct will not repeal the («) See Watson v. Atkins, 3 B. & A. 647. {b) See e.g. 38 Geo. 3, c. 5, s. 35 (Land Tax) ; 18 & 19 Vict. c. 120, s. 219 (Metro- polis Management Act) ; 25 & 26 Vict. c. 102, ss. 96, 97 (Amendment of the Metropolis Management Acts) ; 88 & 39 Vict. c. 55, s. 226 (The Public Health Act, 1875) ; 54 & 55 Vict. c. 76 (Public Health (Lon- don) Act, 1891), s. 121 (b). (c) 5 & 6 Vict. c. 35, ss. 60, 103 ; post. Sect. 2 of this chapter. [d) See 32 & 33 Vict. c. 41, as to rating to poor rates any rateable hereditament let lor three months or less (post. Appen- dix (A), Sect. 6, where the act is set out verbatim) ; and the Rating Act, 1874, post, Sect. 15. Tiie Contagious Diseases (Animals) Act, 1869 (32 k 33 V^ict. c. 70), s. 89, was to a like effect ; but that act lias Ijeen repealed, aiul the act of 1878 which replaced it contained no such pro- vision, nor does the Act of 1894, which now takes the place of the Act of 1878. Ordinary Rule. Express Agreement. Knt usually interfered with by Statute. Exceptions. Property Tax. 590 Chap. XV. — Rates, Taxes and Assessments. Cir. XY. s. 1. Contracts as to Rates, Taxes, cjr. Land Tax and Sewers Rates, Tithe Rent- charge. Generally Construction of Covenants to pay Rates, &c. covenant. It does not compel the tenant to make such deduction, and therefore leaves the covenant in full force (e). So a tenant may covenant to pay all rates, &c., including those which, under a previous local act, he would have heen entitled to deduct from his rent (/). But the Property Tax Act makes all such contracts, covenants, and agreements, "utterly void"(^), so far only as they relate to the property or income tax (h). The land tax usually falls upon the landlord in the absence of an express covenant or stipulation to the contrary (/). So do sewers rates, except perhaps those made for ordinary annual expenses (k). But the tenant ma}^ expressl}' take upon himself the payment of land tax and sewers rates (/) ; and a general covenant or promise to pay all rates, taxes, &c., will include the land tax and sewers rates 0^) . An oral agreement to pay all taxes includes the land tax (n). Under an agreement for a lease at a yearly rent of 401., payable quarterly " free of all outgoings," the tenant ought to pay the land tax and commutation rent-charge ; and the landlord is entitled to have a covenant to that effect inserted in the lease (o). The tithe rent-charge must be paid under a covenant to pay " any taxes, rates, assessments or charges whatsoever" (^j), but not, if the words be only " all taxes and assessments " (g). Where a contract for an assignment of the lease of a public house described the public house as held at a certain "net" annual rent under usual and common covenants, it was held, that these words included a covenant b}' the tenant to j)ay land tax and sewers rates (r). A covenant in a sub-lease to perform all the covenants in the original lease (except to pay rent and insure) will in effect com- prise a covenant, contained in the lease, to pay all rates and taxes whatsoever ; and may render the sub-lessee liable to rates for extraordinary drainage and other works of a permanent nature (s). A covenant by a lessee to pay taxes generally, includes parliamentary taxes, and consequently the land tax ; for when taxes are generally (e) Brewster v. Kitcliell, 1 Ld. Rayni. 320, 321 ; Carthew, 438, 439 ; 12 Mod. 169 ; Holt, R. 175, 669. (/) Payne v. Burridge, 12 ]M. & W. 727 ; Thompson v. Layworth, L. R., 3 C. P. 149 ; 37 L. J., C. P. 74. (f/) 5 & 6 Vict. c. 35, s. 103. (h) Tinckler v. Prentice, 4 Taunt. 549 ; 13 R. R. 684 ; Fcsting v. Taylor, 3 B. & S. 217, 231. See Sect. 3, post. (i) Post, Sect. 3. [k) Post, Sect. 4 ; Callis on Sewers, 140. {l) Sec Bennett v. Womack, 7 B. & C. 627 ; 1 M. & R. 644 ; 6 L. J., K. B. 175 ; 31 R. R. 270 ; 3 C. & P. 96 ; Payne v, Burridge, 12 M. & W. 730. (m) Arnfield v. White, Ry. & Moo. 246 ; 27 R. R. 745 ; Marming v. Lunn, 2 C. & K. 13. ill) Amficld V. White, Ry. & Moo. 246 ; 27 R. R. 745. (o) Parish v. Slecman, 1 De G., F. & J. 326; 29 L. J., Ch. 96. See Form of Covenant, post, Appendix B., Sect. 15; and see further post, Sect. 16, "Tithe Rent-charge." (f7) Lockwood V. Wilson, 43 L. J., C. P. 179 ; 30 L. T. 761. {q) Jejffrcy v, Neale, L. R., 6 C. P. 240 ; 40 L. J., C. P. 191. (r) Bennett v. Womack, 7 B. & C. 627 ; 31 R. R. 270 ; 3 C. & P. 96. (s) Sivcct, app., Seagcr, resp., 2 C. B. N. S. 119 ; Tlwmpson v. Lapicorth, L. R., 3 C. P. 149 ; 37 L. J., C. P. 74. Sect. 1.— Contracts as to Eates, Taxes, etc. 591 spoken of, if the subject-matter will bear it, paiiiamentaiy taxes Ch. XY. s. 1. given to the crown are included. If, therefore, a lease be made for Contracts as to Mates Taxes years, at a rent " free and clear from all manner of taxes, charges, l-c. and impositions whatsoever," the lessee is bound to pay the whole rent without any manner of deduction for any old or new tax, charge or imposition whatsoever : thus on a grant of a fee-farm rent, " with- out any deduction, defalcation or abatement for or in any respect whatsoever," the grantee was held to be entitled to receive the full rent without deducting the land tax(0. An agreement that " all taxes, parochial and parliamentary," shall Parliamentary ftTld r 11*00 lT19,l be paid by the tenant, will not comprise a sewers rate, for that is Taxes,' neither parochial nor parliamentarj^ («) : so an improvement rate made by commissioners under a local act is not parochial or parliamentary {x) : but the land tax is a parliamentary tax, being imposed directly by parliament (?/). A covenant by the lessee to pay all parliamentary taxes, assessments, kc, will extend to the land tax which has been redeemed or purchased by a former lessee, and is payable to him under the Land Tax Act {z). A county rate is not a parliamentary tax, but it is a parochial rate, because levied and paid with and out of the j)oor's rate (a). By certain acts of pai-liament provision was made for making rates on certain lands which were before liable ratione tenurte to repair a bridge, for raising a fund for such repaii's ; a lessee of part of those lands covenanted to pay his rent free and clear of and from any land tax and all other taxes and deductions whatsoever, either parliamentary or parochial, imposed upon the premises or upon the lessor ; it was held that the rate for the repair of the bridge was not a parliamentary tax within this covenant {h). Where a local act imposed upon owners the duty of paving, kc, and, in case of their default authorized the commissioners to do the work themselves, and to charge the owners with the expenses proportionally, and to \&vj the amount by distress on the premises ; held, that the sum paid by an owner was for his breach of duty, and not for a rate or tax which the tenant was liable to repay (c). A covenant to discharge from taxes extends to subsequent taxes New Taxes, of the same nature as those in being at the time the covenant was {t) Bradbury v, JFright, 2 Doug. 624 ; Giles V. Hooper, Carth. 135. (it) Palmer v. Earith, 14 M. & W. 428. {x) Guardians of Bedford Union v. Bedford Improvement Commrs., 7 Exch. 777 ; but general words may include it 50 as to render the tenant liable ; Payne V. Burridrje, 12 M. & W. 727 ; Sweet, app., Seager, resp., 2 C. B., N. S. 119. ly) Manning v. Lunn, 2 C. & K. 13. (:;) Governors of Christ's Hospital v. Harrild, 2 M. k G. 707. (a) Reg. v. Inhabts. of Aylesbury, 9 Q. B. 261. (b) Baker v. Grecnhill, 3 Q. B. 148. (c) Tidswell y. JFhitworih, L. K., 2 C. P. 326 ; 36 L. J., C. P. 103. Compare this case with Thompson v. Lapicorlh, L. R., 3 C. P. 149 ; 37 L. J., C. P. 74 ; and see Bird v. Elwes, L. P., 3 Ex. 225 ; 37 L. J., Ex. 91. 592 Chap. XV.^Eates, Taxes and Assessments. Ch. XV. s. 1. Contracts as to Hates, Taxes, 4-c. New Taxes — C07ltd, Extraordinary Assessments. Crosse v. Eaw. made, but not to those of a different nature (d). Where a lessee covenanted that he would pay all taxes, charges, rates, tithes or rent-charge in lieu of tithe, dues and duties whatsoever as then were or should at any time thereafter during that demise be taxed, charged, assessed or imposed u2)on the said demised premises ; it was held that the covenant was not confined to rates payable by the landlord, but meant all rates then imposed on the lessee in resj^ect of his occupation, and all future rates which might be imposed on the land itself (e). Where a person took a part of certain premises, the whole of which were rated at a certain annual value, and the lessor covenanted to pay all taxes then chargeable thereon, and the lessee covenanted to pay all fresh taxes which might thereafter be charged on the premises, or any part' thereof : it was held that the true construction of these covenants was, that the lessor should pay such taxes as were charged on the premises at the time of making the lease, at the then annual value, and that the lessee should pay all fresh taxes, and all such additions to those formerl}' chargeable as were occasioned by the improved value of the premises (/). A tenant of marsh lands, who agreed to pay all outgoings whatso- ever, rates, taxes, scots, whether parochial or parliamentary, that then were or should thereafter be chargeable upon the lands, the present land tax excepted, is liable to pay an extraordinary assess- ment made by the commissioners of sewers for a work of permanent benefit to the land (r/). A covenant by the tenant to pay all taxes, rates, duties, levies, assessments and payments will extend to the cost for i:)aving footways, which b}' a local act passed before the lease was made, were made payable by the tenants of the adjoining houses, and which they were allowed to deduct from their rents, in the absence of any express stipulation to the contrary (Ji). A covenant by a lessor to pay all taxes on the demised premises has been held not to extend to the removal of a nuisance caused by an accumulation of mud in ornamental water, which the tenant ought to have cleared out, and Avhich was removed under the Nuisances Eemoval Act, 1855 (/) ; but a covenant to " bear, pay and discharge " the sewers rate, " and all other taxes, rates, assessments and out- goings whatsoever," was held, in Crosse \. Raw (A), to throw upon the (d) Brewster v. Kitclwll, 1 Salk. 198 ; 1 Ld. Rayni. 317 ; Cartliew, 438 ; 12 Mod. 166 ; Holt, R. 175, 669. {(') Hurst V. Hurst, 4 Exch. 571. ( f) Watson V. Atkins, 3 B. & A. 647 ; Graham \. Wade, 16 East, 29. {g) Waller v. Andrews, 3 M. & W. 315 ; Palmer v. Earith, 14 M. & W. 431 ; Sweet, app., Scager, resp., 2 C. B., N. S. 119. (A) Pa%jnc V. Burridge, 12 M. & W. 727 ; Sweet, app., Seager, resp., 2 C. B., N. S. 119 ; Thompson v. Lapicorth, L. R., 3 C. P. 149 ;37 L. J., C. P. 74. {i) Bird V. Elwes, L. R., 3 Ex. 225 ; 37 L. J., Ex. 91. (k) L. R., 9 Ex. 209 ; 43 L. J., Ex. 144. See Budd v. Marshall, and other cases, ]iost, Sect. 10 ; and as to water rate, see Direct Spanish Telegraph Co. v. Shepherd, L. R., 13 Q. B. D. 202; and Sect. 12, post. Sect. 1. — Contracts as to Eates, Taxes, etc. 593 tenant the obligation to pa}- for the makmg of a drain which, under the 10th section of the repealed Sanitary Act, 1866 (/), the landlord as "owner " might have been required by the sewer authority to make, but Avhich the tenant had made under an arrangement with the land- lord by which the expense was to be borne b}^ the party liable. Under the Public Health Act, 1875, sect. 23, the local authority has an option to give notice to the owner or occupier to make an improve- ment of this character, and to recover the expenses from the owner, or to declare them to be " private improvement expenses." A bishop not being able to bind his successors unless certain conditions and formalities are observed by him, a covenant by him to 25ay ^11 charges, ordinary and extraordinar}', does not include land tax {m). When a lessee agrees to pay all rates, taxes, &c., he must pay the full amount thereof, notwithstanding any subsequent increase occa- sioned by additions and new buildings, of Avhich he has the use and benefit during the term («). But when a lessor covenants to pay any rate or tax, or it is specifically excepted from the lessee's covenant, and the annual value of the premises is afterwards increased by alterations and new buildings, the landlord is liable to pay, not the whole rate or tax as paid from time to time by the tenant, but only so much thereof as his rent or the annual value of the premises when demised bears to the improved annual value (o). Thus a land- lord who covenants to pay the land tax, and save the tenant harm- less, will discharge his covenant, if he pay the tax according to the rent he receives, although the premises may be taxed at a higher rate (]:)). If the tenant be under-rated, he can only deduct pro rata (q). Where the tenant of a piece of ground, at a fixed annual rent, covenanted not to build without the licence of the lessor, and the lessor covenanted to pay all taxes charged or to be charged during the term, and at the time of executing the lease the lessor gave the lessee a licence to build, which he did, and thereby much increased the annual value of the premises ; it was held, that the lessor was liable to pay taxes in proportion to the rent received, and not according to the improved annual value (r). Where A. granted a building lease to B. at a yearly rent of 7/., who covenanted to pay (Z) See now Public Health Act, 1875, ss. 23, 214, 226, 251. (m) B]). of Oxford v. JFise, cited in JilaMfonl V. Marlborough, 2 Atk. 544 ; Davenant v. Bp. of Salisbury, 1 Veutr. 223 ; 2 Lev. 68. (n) Hurst v. Hurst, 4 Exch. 571. (o) Smith V. Humble, 15 C. B. 321 ; Watson V. Home, 7 B. & C. 285, and (r) 5nfra; Hi/de v. Hill, 3 T. K. 377 ; I'co v. Zeman, 2 Str. 1190 ; 1 Wils. 21. L.T. (p) Whitfield V. Brandtoood, 2 Stark. 440 ; 20 E. R. 712; Yeo v. Leman, 2 Str. 1191; 1 Wils. 21 ; Bramston v. Robins, 4 Bing. 11 ; 29 R. R. 493. {q) Sherrington \. Aiulrews, Comb. 483 ; but see IFcrdon v. Pickering there cited ; Watson V. Home, 7 B. & C. 285, and (?■) infra, 2nd point. (r) Watson v. Home, 7 B. & C. 235 ; 6 L. J., K. B. 73 ; 31 R. R. 200. 38 Ch. XV. s. 1. Contracts as to Rates, Taxes, Extraordinaiy Assessments — contd. Land Tax of Bishop. In what Pro- portion Rates and Taxes are to be jiaid. 594 Chap. XV. — Eates, Taxes and Assessments. Ch. XV. s. 1. Contracts as to Eates, Taxes, Landlord's Eemedy. Tenant's Eemedy by Deduction from Kent. all taxes except the land tax, and afterwards improved the estate, and sub-let it at 54Z. per annum ; it was held, that A. was liable only to jmy the land tax in proportion to the old rent (s). Under a covenant by a tenant for the pa3aiient of 80/. yearly rent, all taxes thereon being to him allowed ; and also that he would pay all further'- or additional rates on the premises, or on any additional buildings or improvements made by him ; and a covenant by the landlord to pay all rates on the premises or on the tenant, in resj)ect of the said yearlj' rent of 801., except such further or additional taxes as may be assessed on the demised premises ; the tenant was held bound to defray all increase of the old as well as the new rates, beyond the proportion at which the premises were rated at the time of the deed, which was 20Z. in respect of the 801. rent (t). Where the owner of a house, in consideration of a premium, demised it at one-third of its annual value, and afterwards redeemed the land tax, it was held, that he was entitled to receive from the tenant an annual payment equal to two-thirds of the land tax so redeemed («)• When a tenant neglects to pay any rates, taxes, &c., pursuant to his covenant or promise in that behalf, the lessor may sue him for the breach of such covenant or promise (x), or he may maintain ejectment if the lease contain a proviso for re-entrj' applicable to such covenant or promise (jj), but not otherwise. Where a landlord is liable to any rate or tax, wdiich the tenant has paid, under actual or implied compulsion, the latter may deduct the amount from his rent, unless there is an express covenant or stipulation to the contrary (z). He is not entitled to make such deduction until he has actuall}' paid the rate or tax (a). The deduc- tion should be made from the rent of the current year; and the tenant cannot claim it from his landlord at any subsequent period (b). On this ground, a plea in bar to a cognizance for a distress for rent, which stated that " divers sums, amounting to a certain sum, had been from time to time duly assessed and rated for the premises for land tax, and from time to time paid by the plaintiff, wherefore he deducted the said sum, being the amount of the tax which the defendant, as landlord, was liable to bear in respect of the rent," was held bad, for not stating the specific periods for which the respective sums were assessed or paid ; and in not showing that the payment claimed to be deducted was made after the rent distrained (s) Barnfathcr v. Lee, cited 3 T. R. 379. [t) Graham v. Wa,dc, 16 East, 29 ; Watson V. Atkins, 3 B. & A. 647. (%) Ward V. CoTist, 10 B. & C. 635. \x) Hurst V. Hurst, 4 Exch. 571 ; Thompson v. Lapioorth, L. 11., 3 C. P. 149 ; 37 L. J., C. P. 74. (?/) Davis V. Burrcll, 10 C. B. 821. {£) Payne v. Burridcje, 12 M. & W. 727 ; Sweet, app., Seager, resp., 2 C. B., N. S. 119 ; Hurst v. Hurst, 4 Exch. 571. (a) Ryan v. Thomjjson, L. R. . 3 C. P. 144 ; 37 L. J., C. P. 134. (6) Andrew v. Hancock, 1 B. & B. 37 ; 21 R. R. 569 ; Gumming v. Beiborowjk, 15 M. & W. 438. Sect. 1. — Contracts as to Bates, Taxes, etc, 595 for had accrued, or was then accruing (c). Where the hmdlord Ch. XV, s, 1, covenants to pay the land tax, the lessee is not entitled to deduct Contracts as to 1111 ni • Rates, Taxes, for more than would be assessed on the amount of his rent, although ^-c. he may have actually paid more {d). AVhere by lease rent is to be Deduction paid without deduction, except for land tax and sewers rate, and the from Rent— ... . contd. annual value of the premises is afterwards increased by alterations and new buildings, the deduction is to be made not of the whole tax as paid, but only in proportion to the rent reserved as compared with the improved annual value of the premises (c). In one case, a succeeding tenant, who came in at Michaelmas (at which time a quarter's rent was due), and received from the former tenant a receipt for a year's property tax also due at Michaelmas, was held to be entitled to deduct the amount upon the landlord's distraining for half a year's rent at Christmas (/). A broker, who, when receiving rent under a distress, deducts a sum purporting to be for land tax, is not to be considered as allowing the land tax, so as to affect the landlord's right, but as merely, from not knowing how to act, consenting to receive the money without the sum deducted (g). Sums allowed by way of deduction from rent in respect of rates and taxes paid (although so allowed erroneously) operate as payment, and will support a defence of payment of so much of the rent (Ii). Where a tenant has paid a tax, which his landlord is bound to Remedy by pay, he may recover the amount paid by action (r). A tenant who had been compelled b}' the " building owner " to jiay the proportion of the expenses of a party-wall or structure which was payable under the Metropolitan Building Act, 1855 (18 & 19 Yict. c. 122), repealed by the London Building Act, 1894, by his landlord, the *' adjoining owner " could maintain an action against the latter to recover the sum so paid, and was not bound (though entitled) to deduct it from the rent due or accruing due (k). Where the tenant has paid his full rent, without deduction, wider Mode of protest, because of a threat of distress, he maj' recover by action r» i°^ d°n the amount of rates and taxes which he has paid for the landlord, and which the latter has improperly refused to allow (0 ; but where a tenant has omitted to deduct a landlord's tax (;?<), or voluntarily paid his full rent without deducting a landlord's tax for a consider- able time, he cannot recover it back. Thus, where the tenant of (c) Stubhsv. Parsons, 3 B. & A. 516. (i) Graham v, Tate, 1 M. & S. 609 j {d) Whitfield V. Brandwood, 2 Stark. Watson v. Hoim, 7 B. & C. 285 ; 6 L. J., 440 ; 20 R. R. 712. K. B. 73 ; 31 R. R. 200. (c) SmitJi V. Humble, 15 C, B. 321, {k) Earlc v. Maugham, 14 C. B., N. S. (/) Olcnnel v. Read, 7 Taunt. 50. 626, applicable apparently to s. 173 (5) of {(j) Saunderson v, Hanson, 3 C. & P. the London Building Act, 1894. 314. {I) Baker v. Greenhill, 3 q. B. 148. {h) Waller Y. Andrews, Z'M.kV^.m ; {m) Gumminc/ v. Bedborough, 15 Jil.&W. Bramston v. Robins, 4 Bing. 11, 42S (Property Tax). 38—2 596 Chap. XV. — Eates, Taxes and Assessments. ^■c. Deductions mider Local Acts, Ch. XV. s. 1. premises under a lease, which contained no reservation as to the Contracts as to payment of land tax, claimed a deduction for such tax, which was refused by the landlord, who afterwards distrained, and was paid the whole rent, and the tenant afterwards paid his full rent for five successive years, without claiming to deduct such tax ; it was held, that such acquiescence was equivalent to a dereliction of his claim in the first instance ; and that he could not recover back any of the sums so paid by him for land tax, in an action of assumpsit for money paid, on the ground of their being involuntary payments («) ; and where an occupier of lands had, during a course of twelve 3^ears, paid to the collector of taxes the landlord's jDroperty tax, and the full rent as it became due to the landlord, without claiming any deduction on account of the tax so paid ; it was held, that the occupier could not recover back from the landlord any part of the property tax so paid (o) . But where a local act provided that a drainage tax of one shilling per acre should be paid by the tenants of the land charged with the same, and that the tenants might deduct the same out of the rents payable to their landlords ; it was held, that a tenant who on the determination of his tenancy paid the full rent then due, without deducting the tax falling due on the determination of the tenancy, but not then called for, might recover from the landlord the amount of tax which he (the tenant) was afterwards compelled to pay, and would never have any opportunity to deduct from rent (j)). Where a plaintiff demised a house to the defendant, who by the agreement was to pa}^ a rent clear of all deductions for taxes and parochial rates ; and after occupying the premises for some time, the defen- dant quitted them, leaving claims for land tax and poor rates, which latter the landlord was obliged by a local act of parliament to pay, and he did pay them ; it was held, that he could not recover the amount from the defendant in the action for mone}^ paid, but should have declared specially on the agreement, because as there was no original liability on the defendant to pay, it could not be said to be money paid to his use (q). In an action for rent, the tenant may plead as to part, that he has paid a landlord's tax to that amount, in respect of the rent due to the plaintiff claimed by the declaration, after he has in fact paid the tax (?•). In such action the validity of the rate or tax, or the Remedy bj' Defence to Action for Rent. (n) Spragg v. Hammond, 2 B. & B. r)9 ; 4 Moo. J 31 ; Andrew v. Hancock, 1 B. & B. 37 ; 3 Moo. 278 ; 21 R. R. 569 ; Fuller V. AhhoU, 4 Taunt. 105 ; Waller y. Andreics, 3 M. & W. 312 ; Stuhbs v. Parsons, 3 B. & A. 516 ; Brisbane v. Dacres, 5 Taunt. 143 ; 14 R. R. 718. (o) Denhy v. iloorc, 1 B. & A. 123 ; 18 R. R. 444. {}}) Dawson v. Lintcn, 5 B. & A. 521. ((/) Spencer v. Parry, 3 A. & E. 331. (r) Tinckler v. Prentice, 4 Taunt. 549 ; 13 R. R. 684 ; Baker v. Davis, 3 Camp. 474 ; 14 R. 814 ; Poccck V. Eustace, 2 Camp. 181 ; 13 R. R. CQl. Sect. 1. — Contracts as to Rates, Taxes, etc. 597 plaintiff's liability to pay all or any part of it, may be disputed (s); Ch. XV. s. 1. or tlie plaintiff may reply that by the lease or agreement the Co^iraHsas to defendant expressly agreed to pay all rates and taxes (0- In sap- ^s. port of a plea of payment of a landlord's tax, the tenant should call the collector, and produce the assessment (ii) ; but the latter has been held unnecessary {x). Sect. 2. — Rating of Landlord instead of Tenant, hij Statute. Provision has in some cases been made by the Legislature, where the tenant's holding is of small value, for collecting rates from the landlord instead of the tenant, thus reversing the ordinary rule of the incidence of the rate upon the occupier. The principal statute upon this head. The Poor Rate Assessment and Collection Act, 1869, 32 & 33 Vict. c. 41, is set out at length in the Appendix (.?/); but it will be well to say a few words in this place on the general subject. The earliest statute seems to be " Sturges Bourne's Act," 59 Stm-ges Geo. 3, c. 12. This by sect. 19 empowers the vestry of any parish to pass a resolution that " the owner or owners of all houses, apart- ments, or dwellings " in the parish " being the immediate lessor or lessors of the actual occupier or occupiers, which shall respectively be let to the occupiers thereof at any rent or rate not exceeding 201. nor less than 61. by the year or on any agreement b}' which the rent shall be reserved or made payable at any shorter period than 3 months," shall be assessed to the rates in respect of such houses instead of the actual occupiers. Tliis section has no application to houses let at a weekly rent amounting to more than 20/. by the year (z). The same section provides that the resolution of the vestry may be rescinded from time to time, and that the sums assessed may upon non-payment be levied upon, and the iDayment thereof enforced against the owner and his goods. But the 20th section provides tluit the goods of the occupier " shall be liable to be distrained and sold for raising so much of any such rate or assessment being in arrear, as shall have become due during the occupancy of the person whose goods shall be so dis- trained," providing also, however, that any occupier paying the rate or suffering a distress for it may deduct out of the rent payable b}' him the amount so paid or levied upon him. (s) Lobban v. Cool; 3 H. & N. 238. {z) West Ham Union v. lies, L. R.. 8 (t) Frnjiie V, Burridge, 12 M. & W. 727. App. Cas. 386 ; 52 L. J., Q. B. 650 ; 49 {u) Gabell v. Shevell, 5 Taunt. 81. L. T. 205 ; 31 AV. R. 928 ; affirming {x) Phillips V. Beer, 4 Camp. 266. decision of C. A. [y) Appendix A. 598 Chap. XV. — Bates, Taxes and Assessments. Ch. XV. s. 2. Sating of Landlord by Statute. Poor Eate Assessment and Collection Act, 1869. Ambassadors, Attaches, &c. Proposed division of Rates between Landlord and Tenant. The next act, 13 & 14 Vict. c. 99, commonl}^ called the Small Tenements Act, hemg now repealed (a), it need only be stated that it empowered vestries to rate owners instead of occupiers in cases where the yearly rateable value did not exceed 6'. " The Poor Eate Assessment and Collection Act, 1869," 32 & 33 Vict. c. 41, is the principal act upon the subject. This statute by s. 1 provides that the occupier of any rateable hereditament let to him for a less period than three months may deduct the amount paid by him for a poor rate from rent, and " that every such pay- ment shall be a valid discharge of the rent to the extent of the rate so paid." The 3rd section provides that owners may agree in v^riting with overseers to become liable for the poor rates assessed on here- ditaments the rateable value of which does not exceed 20Z. in the metropolis, or IM. in Liverpool, or lOZ. in Manchester or Birming- ham, or 8^. elsewhere ; and the 4th section empowers a vestry to order owners to be rated instead of occupiers in all cases to which section 3 extends, except that a dwelling-house must be included in the rateable hereditament for the order to appl}-. In the peculiar case of Parkinson v. Potter (b), a local act relating to the parish of Marylebone, 35 Geo. 3, c. Ixxiii, s. 190, provided that any rate made on a house which an ambassador, or his servant, &c., or other person not liable by law to rates should inhabit, should be recoverable from the landlord. A house in the parish was let to the defendant under a covenant to pay all rates, &c., imposed on the premises or on the landlord in respect thereof. The defendant assigned the house to an attache who claimed exemption from rates both at common law and by virtue of the Diplomatic Privileges Act, 1708, 7 Ann. c. 12, whereupon the landlord paid the rates and sued the defendant to recover the money paid. It was held that an attache came within the exemption and the local act, and that the defendant was liable to recoup his landlord. The deduction of part of certain rates from rent under the Bating Act, 1874, and the rating of owners instead of occupiers under the Public Health Act, 1875, is treated hereafter (see Sects. 11, 15). It may be well to mention here that the Boyal Commission on Agriculture, which reported in 1882, was of opinion "that, without disturbing existing contracts of tenancy, all rates should in future be borne equally by owners and ocuipiers." («) By 32 & 33 Viet. c. 41, s. 6, and by the Statute Law Eevision Act, 1875. (b) Parkinson v. Potter, 16 Q. B. D. 152 ; 55 L. J., Q. B. 153 ; 53 L. T. 818 ; 34 W. E. 215. Sect. 3. — Property Tax. 599 Sect. 3. — Propertii 2'ax. , . , . n • Ch. XV. s. 3. The Acts relating to property tax and income tax are very mime- p^-oaertu Tax rous (c). The principal act, passed in 1842, is 5 & 6 Yict. c. 35, and the amount of the landlord's tax is no\v (Fel)., 1898), eightpence (d). The property tax, like most others, is a tenant's tax as between Tenant to de- him and the public (c). But the Income Tax Act, 1842, 5 & 6 ^uct Property Vict. c. 35, s. 60 (Sched. (A.), No. TV., ninth Rule), directs the h.L 7iext lient. tenant, on paying the tax, to deduct it from his rent, and directs Income Tax the landlord to allow the deduction, in the following terms : — g ^^'q ' The occupier of any lands, tenements, hereditaments, or heritages, Sched. (A.), being tenant of the same, and paying the said duties, shall deduct so much thereof in respect of the rent payable to the landlord for the time being (all sums allowed by the commissioners being iirst deducted) as a rate of [seve^i (/) pence] for every twenty shilhngs tliereof would by a just proportion amount .unto, which deduction shall be made out of the first payment thereafter to be made on account of rent ; and the receivers -r di j.^ f of her Majesty, and all landlords, both mediate and immediate, their allow such respective heirs, executors, administrators, and assigns, according to their Deduction, respective interests, and their respective receivers or agents, shall allow such deduction upon receipt of the residue of the rent, under tlie penalty herein (g) contained ; and the tenant paying the said assessment tenant shall be acquitted and discharged of so much money as if the same had paying, actually been paid unto the person to or for whom his rent shall have discharged, been due and payable; and the occupier of lands charged on the amount of any composition, rent, or payment for tithes arising therefrom, and paying the said duties, shall be entitled to make the like deduction from such composition, rent, or payment on paj'ing the same. So mesne landlords, by whom any such deductions shall have been allowed as aforesaid, may deduct and retain a just proportion thereof from the rent, &c. payable by them to their superior landlord (li). The 73rd section of the same act provides that no agreement between landlord and tenant as to payment of taxes shall be deemed to extend to the duties charged under the act. The 103rd section adds, penalty 50l that if any person shall refuse to allow any deduction authorized by ^i" letusing , „ , . „ , Deduction. the act out of any rent he shall forfeit the sum of fift}^ pounds, and s. 10.3. that all contracts, covenants and agr(;eraents made or entered Contract into, or to he made or entered into{i), for payment of any rent in j;ucdon wik full, without allowing the deduction, " shall be utterly void," — which g. 103. means that the particular stipulation for payment in full shall be void, and not the whole contract of tenanc_y {k). (c) See Chit. Stat. tit. " Property Tax." all prior Income Acts in force. (d) Finance Act, 1897, 60 & 61 Vict. (g) See sect. 103, intVa. c. 24, .s. 4, (h) Id. Kule "Tenth." (e) Cv.mming y. Bcdborough, 15 'M. ky\^, {i) As to the neccs-^itv of these words, 438. see Re Knight, 1 Exch. 80-2. (/) The effect of each annual Finance {k) Gaskell v. King, 11 East, 165; 10 Act is to read into tlie section six])ence R. R. 462 ; Tincklcr v. Prentice, 4 Taunt, or eightpence, or other current rate fur tlie 549 ; 13 R. R. 684. original sevenpence, andalso toincorporiate 600 Chap. XV. — Eates, Taxes and Assessments. Ch. XY. s. 3, Property Tax, Larger Rent, Subject to Ke- 'luction, good. Repayment b}' Lrindlorcl. Lamb v. Brewster. When the De- duction may be made. Cumming v. Bcdhorough. Revenue Act, 1864. Penalty on Landlord not allowing Deduction. Income Tax pa\'al)le on Royalties reserved in Demise. A larger rent, hoAvever, ma}^ be reserved, subject to a reduction on the repeal or diminution of the property tax (0- It has been held by the Court of Appeal that an agreement, that if the tenant will continue to pay his rent in full, without any deduction in respect of landlord's property paid by him, the land- lord will repay to the tenant all sums which he has paid, or shall pay for the landlord's property tax, is not invalid as being contrary to this section {in). A tenant is not entitled to make any deduction in respect of property tax until he has actually i')aid the amount {ii). Such pay- ment operates as a payment pro tanto of the rent then due, or then accruing (o). It was held in Cumming v. Bedborough that where the tenant omitted to deduct the tax on his next payment of rent, he could not afterwards recover the amount as " money paid " to the use of the landlord {p). By the Ilevenue (No. 1) Act, 1864, 27 & 28 Vict. c. 18, s. 15, however, the tenant has the right to deduct the tax from subsequent rent " during the period through which the same was accruing due." If the landlord or his agent wrongfully refuse to allow the deduction, he will be liable to a penalty of 50L on each occasion (f/). Such jDenalty may be recovered, either by her Majesty's attorney- general on behalf of the crown, or in a qui tarn action or information commenced in the Queen's Bench Division {r) of the High Court within two years from the time of the penalty being incurred (s). But the attorney-general may stay an}' such qui tam action or information by entering a nolle prosequi, or otherwise, in case it shall api)ear to his satisfaction that an}^ penalty or forfeiture was incurred without intention of fraud it). Income tax is pa^-able upon royalties in the case of a demise, but not of a sale. In Edmonds v. Eastwood a piece of land ^\ us demised ^ with power to the lessee to get from the land clay, brick earth and other materials for making bricks, and to make the same into bricks (Z) Colbron v. Travers, 12 C. B., N. S. 181 ; 31 L. J., C. P. 257 ; Beadel v. Pitt, 13 W. R. 287 ; 11 Jur., N. S. J 52. As to annuity, seeAbadamy. Ahadam, 33 Beav. 475 ; 33 L. J., Ch. 693 ; and as to rent- charge (which may be devised free of pio- perty tax), see Fcsting v. 'Taylor, 32 L. J., Q. h. 41, Ex. Ch. (711) Lamb v. Brewster, L. R., 4 Q. B. D. 607 ; 48 L. J., Q. B. 421 ; 40 L. T. 537 ; 27 W. R. 478 — aftivming decision below. (n) Ante, p. 599. (o) Baker v. Davis, 3 Camp. 474; 14 R. R. 814 ; FranJdm v. Carter, 1 C. B. 750 ; 3 D. & L. 213, cited 15 M. & W. 551. (fj) Cummii/gy. Bedborough, 15 M. & W. 438; Denby v. Moore, 1 B. & A. 123; Spencer v. Parry, 3 A. & E. 331. (^) 5 & 6 Vict. c. 35, s. 103, ante ; 18 R.R. 444 ; Reg. v. Sheil, 1 F. & F. 204 ; Att.-Gen. V. Shield, 3 H. & N. 834 ; 28 L. J., Ex 49. (r) Judicature Act, 1873, s. 34, as amended by Order in Council. (.s) This seems to be the effect of the 22ntl section of the Inland Revenue Regu- lation Act, 1890, 53 & 54 Vict. c. 21. [t) lb. s. 62. The 185th section gives costs ; and this seems not to be impliedly rei)ealed by Rules of the Sujireme Court, Order LXV. , which ])laces costs in the discretion of the court. See Easier v. JFood, 54 L. J., Q. B. 419, and ante, 561 {u). Sect. 3.— Propekty Tax. GOl upon the premises foi' a term of fourteen years, paying to the lessor Ch. XV. s. 3. the yearly sum of 17/. lO.s. for surface rent, by quarterh' payments ; ^^'^P^'i'^'J Tax. also paying to the lessor for roj'alty or brick rent the yearl_y sum of 100/., by four equal quarterly payments on the same days ; and also paying in respect of every thousand bricks over and above the first million which should be made on the premises in any one year, an additional royalty or brick rent of 2s., to be paid on the last da}- of every year. It was held, that both the royalties or brick rents were chargeable with income tax, and that it was payable in the first instance by the lessee, who was entitled to deduct it from the amount due to the lessor (»)• In such a case the ro3"alties would go to the heir rather than to the executor of the lessor (a:), although where a mine is sold and the purchase -money is made payable by fifty annual instalments, such instalments constitute capital (not income), and no income tax ought to be paid or deducted in respect thereof (//). In estimating the value of a succession to land under the ^"o deduction Succession Duty Act, 1853, 16 & 17 Vict. c. 51, the successor is sion Dutv iii not entitled to a deduction for income tax, or the agent's charges respect of for collecting rents (^). Sect. 4. — Land Ta.r. The principal Land Tax and Land Tax Redemption enactments, Land Tax are the Land Tax Act, 1797, 38 Geo. 3, c. 5, made perpetual by the Land Tax Land Tax Perpetuation Act, 1798, 38 Geo. 3, c. 60 ; the Land Tax Redemption A.cts. Redemption Act, 1802, 42 Geo. 3 (a), c. 116 ; the Land Tax Redemp- tion Act, 1813, 53 Geo. 3, c. 123 ; and sections 31 to 36 inclusive of the Finance Act, 1896, the latter act reducing the maximum limit of Finance Act, the tax from four shillings to one shilling in the pound, simplifying and cheapening the terms of redemption, and repealing large por- tions of the prior acts. By the Land Tax Act, 1797, 38 Geo. 3, c. 5, s. 4, the land tax Land Tax- was directed to be rated and charged in manner therein mentioned ^° ^ ' " upon all hereditaments in England, Wales, and Berwick-upon-'Ticecd, and upon all persons "having or holding " any such hereditaments " in respect thereof;" and by s. 180 of the Land Tax Redemption Act, 1802, 42 Geo. 3, c. 116, it is raised by an equal rate according to the annual value of the hereditaments in each parish. Neither (u) Edmonds v. Eastwood, 2 H. & X. Fletcher, Z'H.. k^.lQ^ ; 28L. ,L, Ex. 100. 811 ; 27 L. J., Ex. 209. (2) In re Elwes, 3 H. & K. 719 ; 28 (x) Barrs v. Lea, 33 L. J., Ch. 437 ; 10 L. J., Ex. 46. Jur., N. S. 996. («) See the whole series of Land Tax For effect of Land Transfer Act, 1897, and Laud Tax Kedeniption Acts in see p. 303, ante. Chittj-'s Statutes, .oth ed., tit. "Land [y) Taylor v. Evans, 1 H. & N". 101 ; Tax," and for the Finance Act, 1896, see 25 L. J., Ex. 269 ; Lady Emily Foley v. Lely's Annual Statutes of that year. 602 Chap. XY, — Eates, Taxes and Assessments. Cn. XV. s. 4. Laoid Tax. • ' Annual Value." May be levied by Distress and Sale, or by Coniniit- ment. Power to Tenant to deduct a pro- portionate Part from the Rent. Acquittance from Eent, pro tanto. Commis- sioners to settle Disputes as to Land Tax. Express Con- tracts as to Rates and Taxes not in- terfered with. Tenant liable to the Public for the Laud Tax. that act nor any other provided a definition of " annual vakie." A definition is now provided by the Finance Act, 1896, which by s. 35 enacts that "annual value" means annual value by determination of the Income Tax Commissioners for the purpose of Schedule A. in the Income Tax Act, 1842. By sect. 17, it is to be levied and raised, when necessary, by dis- tress and sale, with power to break open outer doors, &c., in the presence of a constable ; and with power to the commissioners of land tax to commit defaulters to prison, there to remain until the arrears of land tax, with costs, are paid. But a distress may not be made immediately after the tax is demanded ; there must be a refusal, or a neglect and default to pa}^ the tax, and a reasonable time after demand made should be allowed, otherwise the distress will be illegal [h). An outer door, &c., cannot be broken open to levy land tax, except in the ijresence of a constable (c). By the same sect. 17, the tenant rated by virtue of the act is required and authorized to pay such sum or sums of money as shall be rated, and to deduct out of the rent so much of the said rate as, in respect of the said rents of anj' such houses, &c. the landlord should and ought to pay and bear ; and the said landlords, both mediate and immediate, according to their respective interests, are required to allow such deductions and payments upon the receipt of the residue of the rents. By sect. 18, " ever}- tenant paying the said assessment or assess- ments last mentioned shall be acquitted and discharged of so much money as the said assessment or assessments shall amount unto, as if the same had actuall}^ been paid unto such i)erson or persons to whom his rent shall have been due and pa^-able ; " with power to the commissioners of land tax, or uny two of them, to settle, as they shall think fit, any differences between landlord and tenant, or any other, concerning the said rates. When they have decided any such difference the court will not re-examine it (d). Sect. 35 provides, " that nothing in this act contained shall be construed to alter, change, or determine, or make void any contracts, covenants, or agreements whatsoever between landlord and tenant, or any other persons, touching the payment of taxes and assessments in England, Wales, and Berwick-upon-Tweed; anything herein con- tained to the contrary notwithstanding." The land tax is to be rated and charged upon the person " having or holding" the property "in respect thereof" (e). It is a tenant's tax, as between him and tlie public (/). But, in the absence of any (b) Gihbs V. Slcad, 8 B. & C. 528. (c) Foss V. Eacine, 8 C. & P. 699 ; 4 M. & W. 419 ; 7 Dowl. 53. {d) Brockman v. Honywood, 1 P. AVms. 328. (e) 38 Geo. 3, c. 5, s. 4, supra, 601. (/) li. V. 3Iitcham, Oald. 276 (a); Doug. 226, Duller, J. ; Watson v. Home, I Sect. 4.— Land Tax. 603 express stipulation to tlie contrary, the tenant is entitled to deduct Ch. XV. s. 4. out of the current or accruing rent, when paid h}' him {g), not the Lmid Tax. whole rate as paid, hut only so much thereof as the rent paid to his With Power immediate landlord hears to the assessed annual value of the demised propm-tiouate premises ; and such landlord may deduct out of the next rent paid I'ait thereof by him to his superior landlord so much of the rate as such last- Payment of mentioned rent bears to the assessed annual value of the propert}-, ^*"*- and so on, toties quoties (Ji). When an outgoing tenant who has paid the land tax hands over the receipt to the succeeding tenant, it seems that the latter may have the allowance of it (/). Any contract by a tenant to pa}' the land tax, or to pa)- " all rates Express and taxes," will render him liable to pay the whole land tax, without Tenants to^^ making any deduction from his rent in respect thereof (A). Even an V^y Land oral agreement to pay " all taxes" (not specifically mentioning the land tax) Avill be sufficient for this purpose Q). Under an agreement for a lease at the yearly rent of 40Z., pa^'able quarterly, " free of all outgoings," the tenant ought to pay the land tax and tithe commuta- tion rent-charge, and the landlord is entitled to have a covenant to that effect inserted in the lease {m). The land tax is a "j)arlia- mentary tax " within the meaning of an agreement to pa}- rent " and all taxes parliamentary and parochial " (ji), but not a parochial tax(o). "When the tenant covenants or agrees to pa}' all rates, taxes and Express impositions, except land tax, or when the landlord covenants or agrees Landlord to to pay the land tax, or "all rates and taxes" (which would include pay the Land '■ •' ' ^ 'Pax New the land tax), and new buildings are subsequently erected, or other BuikUngs. improvements made, during the term, whereby the amount of land tax is increased, the landlord is bound to allow the tenant to deduct from his rent only so much of the land tax as would have been pay- able for the premises in the state in which they were demised, and not such part of the land tax as is occasioned by the new buildings or other improvements, of which the tenant has the use or benefit {p). The result is, that the lessor is bound to pay such proportion only of the land tax as the reserved rent bears to the total annual value {q). 7 B. & C. 285 ; Ward v. Cond, 10 B. & C, Hoimvod v. Barefoot, 11 Mod. 237. ^49. (,H,) Parish v. 'Slccman, 1 De G., F. & J. {g) Andreiu v. Hancock, 1 Brod. & B. 326 ; 29 L. J., Ch. 96. 37 ; 3 Moo. 278 ; 21 R. R. 569 ; Bcnhy v. {n) Manning v. Lunn, 2 C. & K. 13 ; Moore, 1 B. & A. 123 ; Stubbs v. Farsons, Christ's Hospital v. Harrild, supra. 3 B. & A. 516 ; Carter v. Carter, 5 Bing. (o) Waterloo Bridge Co v. Cull, 1 406 ; 7 L. J., C. P. 141 ; 30 R. R. 677. E. &.: E. 213 ; 28 L. J., Q. B. 70 ; 29 {h) 38 Geo. 3, c. 5, s. 17, supra. Id. 10. (i) Clennel v. Bead, 7 Tannt. 50. (;j) Hyde v. HiU, 3 T. R. 377 ; Graham (k) 38 Geo. 3, c. 5, s. 35, supra, p. 602 ; v. IFade, 16 East, 29 ; Whitfield y. Brand- Gibs V. Hooper, Garth. 135 ; Breicster v. wood, 2 Stark. R. 441 ; 20 R. R. 712 ; Kitchell, 1 Ld. Raym. 317 ; Christ's Has- Watson v. Home, 7 B. &C. 285 and 593 (r) ^ital V. Harrild. 2 M. & G. 707. ante ; Smith v. Humble, 15 C. K 321. (l) Amfield v. White, Ry. & Moo. 216 ; (q) Const v. JFard, 10 B. & C. 649, 654. 604 Chap. XV. — Bates, Taxes and Assessments. Ch. XV. s. 4. Land Tax. Distress — no Breach of Covenant for quiet Enjoyment. Land Tax re- deemed may be recovered as Rent. Terms of Re- demption. Tenant at Rack-Rent may not. redeem. A distress for land tax is no breacli of a landlord's covenant for quiet enjoyment, without interruption by him or any other person claiming " by, from or under him" (r). Where a tenant is bound to pay the land tax, the amount of it, if redeemed by the person entitled to the rent, is payable and may be recovered as rent. For sect. 126 of the Land Tax Redemption Act, 1802, 42 Geo. 3, c. 116, provides that— Where anv tenant or lessee at a rack-rent for any term or number of years, or at will, of any manors, messuages, lands, tenements, or heredita- ments, shall be bound by agreement to pay the land tax charged thereon during the continuance of any demise, and such land tax shall have been or shall be redeemed by or on the behalf of the bodies politic or corporate, or companies, or other person or persons beneficially entitled to the rent reserved or made payable on such lease or demise, the amount of the land tax so redeemed shall daring the continuance of such lease or demise be considered as rent reserved or made payable thereon, and the same shall be payable on the same days, and the same powers shall be had, used, and enjoyed for the recovery thereof as for the recovery of such rent when in arrear. Where the owner of a house in consideration of a premium demised it at one-third of its annual value, and afterwards redeemed the land tax, it was held that he was entitled to recover from the tenant an annual payment equal to two-thirds of the land tax so redeemed (s) ; and where the owner of land subject to a fee-farm rent redeemed the land tax, that he was entitled to deduct a proportionate part of the land tax from such fee-farm rent {t). The Finance Act, 1896, 59 A: 60 Vict. c. 28, has improved and simplified the terms of redemption, sect. 32 enacting that the "owner ' of any land [which term by sect. 35 includes "any person entitled under the land tax acts to redeem the land tax assessed on that land "J may redeem the tax by payment to the Commissioners of Inland Revenue of a capital sum equal to thirty times the sum assessed on such land by the assessment last made and signed. By sect. 10 of the Land Tax Redemption Act, 1802, 42 Geo. 3, c. 116, redemption maybe effected by all persons having any interest in the land assessed, except tenants at rack-rent and crown tenants. Sect. 5. — Sewers Rates. Sewers Acts. The principal acts relating to sewers and sewers rates are 23 Hen. 8, c. 6 (made perpetual by 3 .^ 4 Edw. 6, c. 8) ; 13 Eliz. c. 9 ; 7 Ann. c. 10; 3 & 4 Will. 4, c. 22; 4 & 5 Vict. c. 45 ; 12 & 13 Vict. c. 50 ((f). (r) Stanley v. Hayes, 3 Q. B. 105. (s) JFard v. Const, 10 B. & C. 635. {t) Moody v. Dean and C. of Wells, 1 H. &N. 40 ; 25 L. J., Ex. 273. (u) See Chitty's Statutes, tit. "Sewers." Sect. 5. — Sewers Eates. 605 The Metropolitan Sewers Acts are mainly regulated by the Ch. XV. s. 5. Metropolis Management Act, 1855 ; 18 & 19 Vict. c. 120, as amended -gg^^'^'-s Jiates. by the Metropolis Management Act Amendment Act, 1862, 25 & 26 Metropolitan ^ ' ^ ^r^ , ^ !?c\vers Acts. Yict. e. 102 (.r). Sewers within the district of any urban authority are provided Sewers within for by the Public Health Act, 1875 iy). Real property within the Districts. district of a local board of health cannot be assessed to a district rate for the purpose of defraying the expenses of sewers for the benefit of the district, unless there be some person having such an occupation as would make him liable to the poor rate in respect thereof {z). Under the Statutes of Sewers, every person whose property derives A Landlord's benefit from the works of the commissioners is liable to be rated, although the benefit be not immediate (a). The sewers rate is not an annual tax, but a charge in respect of the improvement of the land {h). In the absence of any special stipulation to the contrary, a sewers rate for extraordinarj' repairs falls upon the landlord, but a rate for ordinary annual repairs falls on the tenant (c), and, if necessar}', the commissioners of sewers will, on appeal to them, decide by whom and in what proportion any particular rate shall be borne {d). The tenant or occupier pays the rate in the first instance {e), and Deduction afterwards is entitled to deduct from the next jjayment of his current p°?p,-,. °-!,„^^ rent so much of the rate as the landlord ought to bear ; in like Tenant. manner as with respect to land tax if). Where A. demised land to '^^^ Tenant /> 1 ™^^st pay any B. upon a building lease, at the yearly rent of 60Z., "clear of all increase of the parliamentar}', parochial, and other taxes, rates, assessments and V)vXewBiuld- deductions whatsoever (the sewers rate, land tax and landlord's iugs, &c. property or income tax only excepted)," with the usual covenant to pay the rent without any deduction or abatement whatsoever (except on account of the sewers rate, land tax and landlord's property or income tax) ; and B. having, by building on the land, increased its rateable value to 800/. per annum : it was held, that he was only entitled to deduct the sewers rate and land tax 'HjJo;i the original rent, and not in respect to the original value (r/). A sewers rate properly so called, not being imposed directly by act Not a " Par- of parliament, but by the authority and judgment of the commis- tJ^™'^" '^'^ {x) See Chitty's Statutes, tit. "Metro- (a) Brady \. Wilson, 3 A. & E. 248. polis," and particularly ss. 68—89, 145 — [b) Smith v. Humble, 15 C. B. 330. 148, 163, 164, 169, 181, 182 of this act ; (c) Callis on Sewers, 140. lleg. V. Great Western li. Co., E., B. & E. {d) Callis on Sewers, 143 ; Coote, L. & T. 600 ; Rcq. v. Head, 3 B. & S. 419 ; 32 278 ; Payne v. Btcrridc/e, 12 M. & W. 730. L. J.. j\l'. C. 115 ; Ee Pittiward. 19 C. B., (e) Gallic. 140 ; Soady v. Wilson, 3 N. S. 489 ; 34 L. J., C. P. 301.' A. & E. 248. (y) 38 & 39 Vict. c. 55, s. 13 et seq. (/) Ante, 602 ; Smith v. Humble, 15 (~) Hodfjson, app., Carlisle Local Board, C. B. 321. i-esp., 8 E. & B. 116 ; P^eg. v. Licensed (g) Smith v. Humble, 15 C. B. 321. Victuallers' Society, 1 B. & S. 71. 606 Chap. XV. — Kates, Taxes and Assessments. Cii. XV. s. 5. Sewers Safes. but it is a "Scot or Outgoing." sioners of sewers, is not a " parliamentary " tax (h) ; and therefore a tenant who has agreed to pay " all taxes, parochial and parlia- mentary," may, after paying a sewers rate, deduct the amount from his next rent (h) ; or such proportion thereof as the landlord ought to bear (/). But where a tenant of marsh lands agreed to pay all outgoings whatsoever, rates, taxes, scots, &c., whether parliamentary or parochial (the land tax only excepted) : it was held, that an extraordinary assessment made by commissioners of sewers upon the land, for a work of permanent benefit to the land, was a " scot and outgoing " within the meaning of the agreement (A). Origin and Nature of Poor Rates. Principal Statutes. The Occupier is rateable generally. Ptating of Owner in case of short Tenancies or low Rents. Title of Occupier, Sect. 6. — Poor Rates. The Poor Relief Act, 1601 (as it may be styled by the Short Titles Act, 1892), 43 Eliz. c. 2, which may be considered the origin and foundation of our poor laws, empowers the overseers of every parish to raise rates for the support of the poor " by taxation of every inhabitant, parson, vicar and other, and of every occujner of lands, houses, tithes impropriate, propriations of tithes, coal-mines or saleable underwoods in the said parish." Amongst the numerous statutes (l) relating to poor rates passed subsequently to the above statute, the more important are the Parochial Assessment Act (6 & 7 Will. 4, c. 96), the Union Assessment Committee Act (25 & 26 Vict. c. 103), and the Rating Act, 1874 (37 & 38 Vict. c. 54). The poor rate is not a tax on the land, but a personal charge in respect of the land : in general, therefore, the farmer or occupier, and not the landlord, is liable to this tax ; for the rate is a charge upon the occupier in respect of his possession, and not on the lessor in regard to the rent received {m). The Poor Rate Assessment and Collection Act, 1869 (ji), makes provision for the rating of the owner instead of the occupier (1) where the demise is for three months or less, at the option of the occupier who may deduct the rate from the rent or (2) where the rate- able value is not more than a certain small amount (o), by agreement between the owner with the vestry ; and in either of such cases the vestry may make an order for the rating of owners instead of occupiers. As the occupier of land is rateable, it is immaterial by what tenure he holds, or whether he has any title or not : thus if a disseisor obtain possession of land, he is rateable as the occupier of it {p). {h) Palmer v, Uarith, 14 M. & W. 428. (i) Smilh V. Humble, supra. {k) Waller v. Andrews, 3 M. & W. 312. [l) See Chit. Stat, tit. Poor [Rating). (m) Roxds V. Gclls, Cowp. 452 ; 1 Doug. 304. («) 32 & 33 Vict. c. 41, s. 1, see post, Appendix A., where the act is set out verbatim. (o) Not more than 20Z. in the Metro- polis, or 13Z. in Liverpool, or lOl. in Birmingham, or 8Z. elsewhere. ip) Ld. Bute V. GrindaU, 2 H. Blac. 260 : 1 T. R. 343 ; 1 R. R. 220. Sect. 6. — Poor Eates. 607 Any one of several joint occupiers is liable for the whole amount of Ch. XV. s. 6. their joint assessment to a poor rate ; and a warrant of distress ^''°^ Rates. against any one alone is good {q). A lessee for a term of years of a private box in a theatre is rateable under a local act, by which all persons are rateable who "inhabit, hold, occupy, possess or enjoy an}' land, house, shop, wharf, warehouse, or an}- other building, tenement, or hereditament, or other persons who by law are charge- able "(r). No deductions are now allowed for repairs done or agreed to be done by the tenant, nor for contingent or future renewal of buildings or machinery (s). Consequently the rateable value more nearly equals the rack-rent than it formerly used to do. The words "inhabitant" and "other," in the Poor Relief Act, Where there 1601, 43 Eliz. c. 2, mean r^s/c/t'^i inhabitants and other inhabitants, pancy by a If a man do not live within a j)arish he is to be assessed according servant only, to his land ; but if he live within the parish he is to be rated as dwelling there. The residence in a lighthouse by the servant of the owner, at an annual salary, to take care of the light, is the occupa- tion of the master, who alone can be rated in respect of such occupation of the .lighthouse it). A servant who engaged and occupied a house and garden, the rent and taxes of which were paid b}' his master, was held liable to be rated as occupier, and not the master (»)• The trustees of premises not demised to any one, but who meet occasionall}' on the premises for the purposes of the trust (the actual occupants being the servants and others who are emploj^ed in the objects of the trust), are the persons rateable (j:-). The proprietor of a toll traverse who demises it from j-ear to year hy parol i's, properly rateable, as the lessee is a mere bailiff for the collection of it {y). If the owner of a house occupy part of it, he is liable to be rated }Vhere there for the whole, unless there be a distinct occupation of the rest by cupancy onlj\ some other person {z). A sub-tenant of partis not liable to be rated for the whole of the premises ; the rate should be either upon the immediate landlord in respect of his entire interest, or upon each sub-tenant in respect of such portion of the premises as he occu- pies (a). Where a man went from home with his family for nearly a year, but left his assistant to carry on his business in his shop in one room of the house, which for this purpose was parted off by laths from the rest ; and he left the key of the house door with a friend, and had the garden cultivated for his own benefit as usual ; {q) Payntcr v. The Queen, 10 Q. B. 908. {x) Ecg. v. Sternj, 12 A. & E. 84. (r) Beg. v. St. Martin'' s, 3 Q. B. 204. (y) Reg. v. Alarquis of Salishury, 8 (s) Reg. V. Wells, 8 B. & S. 607 ; L. R., A. & E. 716. 2 Q. B. 542 ; 36 L. J., M. C. 109. [z) Rex v. St. Mary the Less, Durham, (0 Rex V. Tyncmouth, 12 East, 46 ; 11 4 T. E. 477 ; 16 R. R. 811. R. R. 328. . (a) Lohban v. Cook, 3 H. & N. 238. (m) Reg. V. Lynn, 8 A. & E,-377. 608 Chap. XV. — Eates, Taxes and Assessments. it was lield that he was liable to be rated to the relief of the poor as occupier of the whole house (h). By the Poor Rate Assessment and Collection Act, 1869, 32 & 33 Vict. c. 41, s. 1 (c), the occupier of a rateable hereditament let to him for not more than three months is entitled to deduct the amount paid by him, in respect of any poor rate assessed thereupon, from the rent due or accruing due to the owner. In the metropolis an owner or lessee who is liable to be assessed for any rate in the place of the occupier or tenant, or does in fact pa}^ any such rate in his place under any contract or arrangement with him, is, by sect. 2 of the Valuation Metropolis Amendment Act, 1884, 47 & 48 Vict. c. 5, deemed to be the ratepayer having the right of appeal against the assessment committee. Under the Poor Relief Act, 1601, 43 Eliz. c. 2, no other mines than coal mines were rateable, but now, by the Eating Act, 1874 (37 & 38 Vict. c. 54), s. 3, all the poor rate acts extend to mines of every kind, and the 8tli section of the Act of 1874 provides that — Where any poor or other local rate, which at the commencement of this act any lessee, licensee, or grantee of a mine is exempt from being rated to in respect of such mine, becomes payable by him in respect of such mine during the continuance of his lease, grant, or licence, or before the arrival of the period at which th eamount of the rent, royalty, or dues is liable to revision or readjustment, he may [unless he has specifically/ contracted ((/) to pay such rate in the event of the abolition of the said exemption) deduct from any rent, royalty, or dues payable by him one half of any such rate paid by him : Provided that he shall not deduct any sum exceeding what one half of the rate in the pound of such poor or other local rate would amount to if calculated upon the rent, royalty, or dues so payable by him. Eating of The Eating Act, 1874, s. 3, also extends the operation of the &c^"iuKier' poor rate acts to "land used for a plantation or a wood, or for Rating Act, the growth of saleable underwood, and not subject to any right of common," and b}' sect. 5 — Ch. XV. s. 6. Foor Hates. Rating of Heredita- ments demised for Three Months or less. Special pro- visions for Appeal by Landlord in Metropolis. Rating of Iron Mines, &c., under the Rating Act, 1874. Tenant may deduct one half from Rent. Deduction by Tenant. Where the rateable value of any land used for a plantation or a wood, or both for a plantation or wood and for the growth of saleable under- wood, is increased by reason of the same being estimated in accordance with this act, the occupier of that land under any lease or agreement made before the commencement of this act, may, during the continuance (b) Eex V. Ahcrystioilh, 10 East, 354. (c) See post, Appendix A. {d) A covenant to pay rent " free of all rates, taxes, and deductions whatsoever, parliamentary, parochial, or of any other nature" is not within this exception. Devonshire {Duke of) v. Barrow Hematite Steel Co., 2 Q. B. D. 286 (C. A.) ; nor is a covenant to "pay or cause to i)e paid all manner of taxes, rates, assessments. charges, and impositions wliatever, parlia- mentary or parochial, which now are or which shall at any time or times hereafter during the continuance of this demise be taxed, rated, charged, assessed, or imposed upon the said demised mines and premises, the landlord's property tax only excepted : " Chaloner v. Bolckow, 39 L. T. 134 ; 26 W. R. 541— H. L. Sect. 6. — Poor Eates. 609 of the lease or agreement, deduct from his rent any poor or othi^r local Ch. XV. s. 6. rate, or any portion thereof, which is paid by him in respect of such Poor Rates. inci'ease of rateable value, and every assessment committee, on the appli- ' cation of such occupier, shall certify in the valuation list, or otherwise, the fact and amount of such increase. The Rating Act, 1874, s. 3, also extends the operation of the poor R;itmg of rate acts to " riglits of fowling, of shooting, of taking or killing Sporting, &c., game or rabbits, and of fishing, when severed from the occu])ation of u"i^lei' Katmg ^ ^ ^ Act, 1874, the land ; " and by sect. 6- — • s. 6. (1.) Where any right of fowling, or of shooting, or of taking or killing game or rabbits, or of fishing, (hereinafter referred to as a right of sporting), is severed from the occvipation of the land, and is not let, and the owner of such right receives rent for the land, the said right shall not be separately valued or rated, but the gross and rateable vahie of the land shall be estimated as if the said right were not severed ; and in such case, if the rateable value is increased by reason of its being so estimated, but not otherwise, the occupier of the land may (unless he has specially contracted (e) to pay such rate in the event of an increase) deduct from his rent such portion of any poor or other local rate as is paid by him in respect of such increase ; and every assessment committee, on the application of the occupier, shall certify in the valuation list, or otherwise, the fact and amount of such increase. (2.) Where any right of sporting, when severed from the occupation of the land, is let, either the owner or the lessee thei-eof, according as the persons making the rate determine, may be rated as the superior thereof. (3.) Subject to the foregoing provisions of this section the owner of any right of sporting, when severed from the occupation of the land, may be rated as the occupier thereof. (4.) For the purpose of this section the person who, if the right of sporting is not let, is entitled to exercise the right, or who, if the right is let, is entitled to receive the rent for the same, shall be deemed to be the owner of the right. Local rate, by sect. 15, means any " county rate, borough rate. Local Rate. highway rate, and other local rate leviable upon property rateable to the relief of the poor." When a tenant becomes bankrupt, all parochial and other local In case of rates to which he is liable rank, with certain other liabilities, as of Tenant. preferential debts (/). (e) See note ((Z), supra. For cases prior (/) Preferential Payments in bank- to the act, see Chap. XVIII. , post. ruptcy Act, 1S88, ante, p. 53(3. L.T. 39 610 Chap. XV. — Eates, Taxes and Assessments. Ch. XV. s. 7. House Tax. Window Duties repealed. House Tax. Exemption of Trade Pre- Exemption fiom Duties of Trade Pre- misen under Care of Ser- vant only. Tenant's Taxes. Effect of Exemptions in Local Acts Sect. 7. — House Tax. The window duties under 48 Geo. 3, c. 55, were repealed by the House Tax Act, 1851, 14 ct 15 Vict. c. 36 (c)), which imposed the following house duties, viz. : — "For every inhabited dwelling-house which, with the household and other offices, yards and gardens therewith occupied and charged, is or shall be worth the re)it of 201. or U2)n-ards by the year : " If occupied as a shop, or by a person licensed to sell beer, &c., or by a tenant farmer or his servant, sixpence in the pound, and if other- wise used, ninepence in the jDOund. By the Customs and Inland Eevenue Act, 1867. 30 & 31 Vict. c. 90, s. 25, to entitle the occupier to exemption from inhabited house duties on the gi'ound of occupation for trade only, ikc, it is not necessary to prove that the occupier resides in a separate and distinct dwelling- house or part of a dwelling-house charged with the said duties. By the Customs and Inland Revenue Act, 1869, 32 & 33 Vict, c. 14, s. 11, any tenement or j)art of a tenement occupied as a house for trade only, i^c, is exempt from inhabited house duties, although a servant or other jierson may dwell in such tenement, or part of a tenement, for the protection thereof. In the absence of any special stipulation to the contrary the house tax falls upon the tenant, who has the use and enjoyment of it. A local act which exempts certain laud from all taxes and assess- ments whatsoever will not exonerate such land from house duty or other taxes imposed by subsequent public general acts(/0. Sect. 8. — County Rates. County Rate The assessment and collection of county rates are regulated by '^''*'- 15 & 16 Vict. c. 81, as altered by 21 & 22 Vict. c. 33 (i). By 15 & 16 Vict. c. 81, s. 6, "for the purpose of preparing 'the basis for the coimty rate as in the act mentioned,' the words ' full and fair annual value ' shall be taken to mean the net annual value of any property as the same is or may be required by law to be estimated for the purpose of assessing the rates for the relief of the poor." " A count}' rate is not a parliamentary tax, although it is in one sense made by parliament ; but the rate is not fixed or assessed b}' act of parliament " (A), but bj' the justices at quarter sessions, subject but Parochial, to an appeal (Q. It is not a tax or tollage within the meaning of the Not Parlia- mentary Taxes, {(/) See tliis and kindred enactments, Chitty's Statutes, tit. "House Tax." {h) Pcrchard v. Hcyioood, 8 T. R. 468. (J) See Cliit. Stat. tit. " County Rate." {k) 14 M. & W. 328, Alderson, B. {I) 15 & 16 Vict. c. 81, ss. 21, 22 ; 21 & 22 Vict. c. 33. Sect. 8. — County Rates. 611 privilege of tenants in ancient demesne as to exemption from taxes Ch. XV. s. 8. and tollage granted by a parliament, unless speciall}^ named (/»). It Coimt)/ Rates. seems, however, to be a parochial tax, being paid out of the poor rate (»). The count}' rate is collected together with the poor rate, and tall on and of course falls upon the tenant, who has no right to deduct any "^ ^""" ' part thereof from his rent, in the absence of anj'- special stipulation to the contrary. Unoccupied houses capable of beinsf rated ought Unoccupied • 111- 1 • /XT • • ■^-, Houses. to be nicluded m the valuation (o), but an inconnng tenant will have to pay only his proportion according to the time of his occupation {p). Sect. 9. — Borough Hates. By the Municipal Corporations Act, 1882, 45 .^ 46 Vict. c. 50, Boiou^'h s. 144, re-enacting s. 92 of the repealed Municipal Corporations Act, Municipal 1835, 5 & 6 AVill. 4, c. 76, if the borough fund of a municipal Boroughs. corporation be insufficient for all the purposes to which it is applic- able, the council "shall order" a borough rate, to make up the deficiency ; and by sect. 147 of the same act where the vestry of a parish has made or makes under sect. 4 of tbe Poor Kate Assess- ment and Collection Act, 1869 (q), an order that owners instead of occupiers shall be rated to the poor rate, every such order while in force "shall be deemed to apply to and include rating to the borough rate." Sect. 10. — HigJuraij Hates. By the Highways Act, 1835, 5 & 6 Will. 4, c. 50 (r), highway rates Highway are to be made by the surveyor of highways, and allowed by two ^-^^{[q and justices, and published and collected in the same way as poor rates (s). enforced They are to be made in a iirescribed form and manner upon tlie occu- ^ r> '^ -i On Occupiers. jjiers (t). Errors in highway rates may be corrected by the surveyor Correction of with the consent and approbation of the justices at a special session Errors, for the highways (»)• Persons rated who through poverty are unable p^^^^j^^^! ^™™ to pay may be excused b}' the justices at such session (.r). AYhen Exemptions. X>roperty, or the owner or occupier in respect thereof, was previous to the passing of this act legally exempt from the p-i p ^ i r» /> r» /> i charo-e" by Act, 1891 ; tor by suD-s. 2 01 s. 9 ol that act: — s. 9, sub-s. 2 of II jj-^ |-jjjg j^gf unless the context otherwise requires, — Act of lb91. ^ . . ^ _ " The expression ' tithe rent-charge ' means tithe rent-charge issuing out of lands and payable in pursuance of the Tithe Acts,, and includes any rent-charge into which a corn-rent has either before or after the passing of this act, been converted under the Tithe Act, 1860, and which is subject to the like incidents as such tithe rent- charge as aforesaid ; but does not include a rent-charge payable under the Extraordinary Tithe Redemption Act, 1886, nor a rent- charge payable under the Tithe Act, 1860, in respect of the tithes on any gated or stinted pasture, nor a sum or rate payable for each head of cattle or stock turned on land subject to common rights or held or enjoyed in common.". -4 Sect. 17. — Tcmpoyary Half-Rating of ^'Agricultural " Land. Half-rating, For five years after the 31st March, 1897, the occupier [including " Ao-ncultiu-al ^^^ that term the owner where the owner is rated in j^lace of the Land." occupier, as to which see p. 598] of " agricultural land " is liable in the case of ever}' rate to which the Agricultural Rates Act, 1896, 59 cl- 60 Vict. c. 16, applies, to pay one half only of the rate in the pound payable in respect of buildings and other hereditaments. Definition of " Agricultural Land " for the punioses of this act means, by s. 9 " Agricultural , ^, ^ , ^ ^ Laud."' ot the act — " Any land used as arable, meadow, or pasture ground only, cottage gardens exceeding one quarter of an acre, market gardens. Sect. 17.— Temporaky Half-Rating of "Agricultural" Land. 625 nursery grounds, orchards, or allotments, but does not include land Ch. XY. s. 17. occunied with a house as a park, gardens, other than as aforesaid. Temporary '■ J. o ^ ^ HaiJ-Katmq pleasure grounds, or any land kept or preserved manily or exclusively ofAgriciii- for j)urposes of sport or recreation or land used as a racecourse." ^'"'^ ^" " " Cottage " means a house occupied as a dwelling by a person of l^efinition of • 1 "Cottage." the labouring classes. Rate means "a rate made during the continuance of the act, the Definition of ^ . "Rate." proceeds of which are applicable to public local purposes, and which is leviable on the basis of an assessment in respect of the yearly value of property, and includes any sum which, though obtained in the first instance by a precept, certificate or other instrument requiring payment from some authority or officer, is or can be ultimately raised out of a rate as before defined," except — (a) Any rate which the occupier of agricultural land is specially liable (see e.g., p. 613) to pay in the proportion of one half or less ; or (b) All}' rate assessed under any commission of sewers (see ante, p. 604) or in respect of any drainage, wall, embankment, or other work for the benefit of the land. L.T. 40 ( 626 ) CHAPTER XVL OBLIGATIONS WITH RESPECT TO THE PRESERVATION OF THE DEMISED PREMISES. Sect. page 1. Express Contract to Eepair, &c... 626 (a) By Tenant 626 (b) By Landlord 634 2. Implied Contract to Repair, &c... 636 (a) By Tenant 636 (b) None by Landlord 638 3. Remedies for Breach of Contract 639 (a) Exercise of Riglit of Entry to Eepair 639 (b) Action for Damages 639 (c) Entry or Ejectment 642 4. Obligations to cultivate, &c 644 5. Waste 646 (a) AVhat is Waste 646 (b) Remedies for Waste 650 6. Fences and Party-Walls 655 Sect. page 7. Trees and Timber 657 (a) What is Timber 657 (b) Implied Rights as to Trees... 658 (c) Express Contracts as to Trees 659 (d) Waste as to Trees 660 8. Fixtures 661 (a) Generally 661 (b) For Purjjoses of Trade 667 (c) For Ornament and Con- venience 669 (d) For Agricultural Purposes .. . 671 (e) Contracts respecting 676 (f) Removal of 682 (g) Remedies respecting 685 9. Survey and Valuation of Dila])ida- tions and Fixtures 687 Sect. 1. — Express Contract to Itex>air, dec. (a) By Tenant. Leases of houses usualh' contain a covenant by the lessee to rejiair and keep in repair the demised premises during the term : also another distinct covenant to repair specific defects within a certain number of months (usuall}^ three) after written notice thereof {a): also to paint the outside and inside wood and ironwork in a certain manner at stated times : and a covenant to leave the ]3remises in proper repair at the end or other sooner determination of the term, besides other covenants as agreed : after which usuall}^ follows a proviso for re-entry on breach of any of the covenants Qj). Prior to the Conveyancing Act, 1881, especially where a premium is given, and in building leases, it was of importance to qualify this proviso for re-entr}^, and to limit it to breaches occasioning a specified amount of damage to the reversion and inheritance (c), or to breaches after a certain notice in writing {d), or to cases where damages in an action for the breach had not been paid : but it was (a) See Few v. Perkins, L. R., 2 Ex. 92 ; 36 L. J., Ex. 54. (&) See F'orms, post, Appendix B. (c) See Doe d. Earl of Darlington v. Bond, 5 B. & C. 855 ; 5 L. J., K. B. 68 ; 8 D. & R. 738 ; 29 R. R. 436. ((/) See Doc d. Eankin v. Brindlcy, 4 B. & Ad. 84. Sect. 1. — Expeess Contract to Eepair (by Tenant). 627 commonly made to apj^ly to any breach of covenant wliatever, with- Ch. XVI. s. 1. out due consideration on behalf of the lessee as to the possible very Express Con- '' tract to Repair serious consequences () ; the tenant should not rely upon any oral [by Landlord). promise made before the lease or agreement is executed (c). There is no implied duty in the owner of an unfarnislicd house which is in a ruinous and unsafe condition to iiiiform a proposed tenant that it is unfit for habitation : and no action will lie against him for an omission to do so, in the absence of express warranty or active deceit ((/). Where the lessor covenants to do repairs, the condition is implied Notice, that notice of want of repair must be given, and the lessee cannot ^{nlcmx. . „ , . , ^ . . Watkmson. proceed for a breach of such covenant, without first giving such notice. So it was held in Makiu v. Watkinson (c), which case was followed with approval by the Court of Appeal in Hiigall v. M'Lecm (/), in which the tenant sued the landlord for breach of an agreement to keep drains in repair (b}' reason of which breach the tenant's house had been flooded with sewage), and the jury found that neither party knew of the defective condition of the drains, but that the tenant had not, and the landlord had, the means of knowing. A covenant by lessor to repair the external parts of a demised house Construction comprises the partition wall between it and an adjoining house ; covenants for and where the adjoining house was pulled down by other persons repair by whereby the wall was damaged, and the lessor did nothing to prevent p' ' , it sinking, and suffered it to continue in a ruinous state, and refused to repair it, he was held liable for the expenses the lessee was put to in rebuilding the wall, and for glass broken by the sinking of it, but not for rent and the expenses of the lessee for other premises Excli. 233 ; 5 Id. 713; Coward-v. Gregory, M.R., doubting "whether the landlord L. R., 2 C. P. 153; 36 L. J., C. P. 1 ; if he had notice aliunde would be liable." Bird V. Ehces, L. E., 3 Ex. 225 ; 37 L. J., These decisions, which are supported by Ex. 91. a dictum in Moore v. Clark, 5 Taunt. 96, [a) Post, Sect. 2 (b) ; Arden v. Pullcn, are at variance with the ordinary rule that 10 M. & W. 321 ; Gott v. Gandy, 2 E. it B. where a man contracts to do a thing he 845; Loffty. Dennis, 1 £. & E. 474; 28 must either do it or pay damages, however L. J., Q. B. 168. unreasonable the contract may be. Neither {h) Tidey v. Mollett, 16 C. B., N. S. Vyse v. Wakefield, 6 M. & W. 442, nor 298 ; 33 L. J., C. P. 235. London and South-Wesiern Ji. Co. v. (c) Seago v. Beanc, 4 Bing. 459 ; 1 Flower, 1 C. P. D. 77, which were M. k, P. 227 ; 6 L. J., C. P. 66 ; 3 0. & P. relied on as authorities, are landlord and 170 ; 29 R. R. 599 ; Haldane v. Neiccomh, tenant cases, and it is submitted that 12 W. R. 135. Vyse v. IVakefield is distinguishable, on (d) Keates v. Earl Cadogan, 10 C. B. the ground that performance there would 591. j\s to furnished house, see ante, 184. have been impossible without notice. It (c) Makin v. JFcUkinson, L. R. , 6 Ex. is to be observed (1) that both in Makin 25; 40 L. J., Ex. 33; 19 W. R. 286; v. Watkinson an^^L Hugall \. M'LcaM, the. 23 L. T. 592 (per Bramwell and Channel), agreement was to do inside repairs, and BB., diss. Martin, B. ). (2) that in neither of them does it appear (/) Hugall v. McLean, 53 L. T. 568 ; tliat the landlord had power to enter to 33 W. R. 588 — C. A., per Brett, M.R., view the state of repair, and Baggallay and Bowen, L.JJ., Brett, 636 Chap. XVI. — The Preservation of the Premises. Ch. XVI. H. 1. Express Con- tract to Repair {by Landlord). Ornamental Water. Drains. Kebuildintr. Rejiudiatiou of Contrnct to Rclmild not constituted liy statement of inability to do so. Rights of Tenant on breacli of Landlord's contract to repair. during the progress of the repairs (r/). If a lessor covenant to keep the demised premises in repair, he is not bound to cleanse an orna- mental piece of water in the grounds {h). A covenant b}' lessor to keep drains in good and tenantable repair has been ruled by Wills, J., not to extend to the rectification of a structural defect (?). If a lessor covenant that he will, in case the demised premises be burnt down, rebuild and replace the same in the same state they were in before the fire, he is only bound to rebuild what he let, and not any addi- tional parts which ma}' have been erected by the lessee {k). If a lessor sell premises let under a lease not expired, and bind himself to do repairs " at the expiration of the tenancv," it appears that he is liable to do the rej^airs whenever and however the tenancy is determined (/). Where a lessor had covenanted after the expiration of the first four years of the lease upon 6 months' notice from the lessee, it was held that the lessor's statement that he would be unable to rebuild was not such a repudiation of his contract as to justify the lessee in" treating the contract as broken and suing the lessee for damages {m). Wliere the landlord expressly binds himself to do any repairs, there is no imi^lied condition that if such repairs be not done the tenant may quit (//) : but it was held in an old case that the tenant may do the repairs, and deduct the expense from t\ie rent(o), and such would still seem to be the law {li). At any rate the tenant could counter-claim for the expense, if sued for the rent. Sect. 2. — Implied Contract to Repair, &c. (a) By Tenant. Obligation to The Contract of tenancy usually contains some express stipulation Premise"1n ^^^ repair by the tenant, but if it contain no such stipulation, or "Tenant-like only contain a stipulation for rent, and whether it be b3'deed, writing without deed, or by parol only, a stipulation is implied by law — in the absence of an}- express stipulation, but not otherwise ((/) — that the tenant will use the demised premises in a tenant-like manner. If the tenancy be for years, this obligation is merged in the more definite and statutor}^ obligation not to commit or permit waste, {g) Green v. Ealcs, 2 Q. B. 225. [h) Bird v. Elivcs, L. R., 3 Ex. 225 ; 37 L. J., Ex. 91. {i) In Hugall v. McLean (reported as 3VKcan), C. & E. 391. {k) Loader v. Kemp, 2 C. & P. 375. (I) Goodson V. Goldsmith, 2 C. & P. 555. (m) Johnstone v. Milling, 54 L. T. 629. {n) Ante, 184. (o) Beale and Taylor's case, 1 Leon. 237. (p) Three cases cited contra in many former editions of this work appear to have been so cited by mistake. {q) If there be an express stipulation to repair, no imidied stipulation to use in a tenant-like manner arises. Standcn v. Christmas, 10 Q. 1>. 135. Sect. 2. — I^rLiED Contract to Eepair (by Tenant). 637 whicli will be presently considered, bnt if the tenancy be at will or from year to year, more difficult considerations arise. Sometimes a covenant as to repairs, cultivation, &c., may be implied from words used in other covenants in the lease (ante, p. 186), or from the recitals (ante, p. 188). But such covenants are implied and found as matter of fact, and are not covenants implied hy laic from the mere relation of the parties as landlord and tenant. We have already seen that a person let into possession under a roid lease, ex. gr. a lease for more than three years not made by deed, or holding over after the expiration of a lease and paying or agreeing to pay rent, becomes a tenant from year to year, U2)ou the terms of the lease, so far as the}- are applicable to and not incon- sistent with a yearly tenancv, so as to be liable as upon a covenant to repair (r). "What is the extent of the implied liability of a tenant at will or of a tenant from year to year for repair, it is not easy to sa3\ A tenant at will is clearly not liable for permissive waste (•?), nor is a tenant from year to year (t). It has been said twice at nisi prius that a tenant from year to year is bound to keep the demised premises " wind and water tight " (u) : but in one case Lord Kenyon appears to have confined the tenant's obligation to repairing the consequences of his own acts, such as putting in windows or doors that have been broken by him {x) ; and in another, Gibbs, C.J., declared that it had always been held that a tenant from year to year is not liable to general repairs {y) ; while in another it was said that the tenant is not bound to rebuild or replace (z). There is moreover no reported case, so far as the Editor is aware, in which a tenant from year to year has been successfully sued for non-repair orily, upon the implied agreement to keep premises " wind and water tight." But the two nisi prius dicta above adverted to appear to have been generally adopted (a), and the only question at the present day appears to be what meaning can be Ch. XYI. s. 2. Implied Con- tract to Repair {bij Tenant). Covenants to repair, &c., when implied as Matter of Fuct. On implied new Tenan- cies. Martin v. Smith. Liability of Tenant at Will, or from Year to Year. (r) Ante, Chap. "VI., Sect. 2. Anci see especially Martin v. Smith, L. R., 9 Ex. 50. As to agreement for lease, see Walsh V. Lonsdale, ante, p. 91. (s) Countess of Shreicsoury''s case, 5 Co. ), no covenant or promise implied hrj law on the part of the lessor of an unfurnished (c) house or land {d) that it is reasonably fit for habitation, occupation or cultivation : nor that the house will endure during the term : nor that the lessor will do any repairs whatever (c). Nor is there any implied covenant by the lessor of two adjoining houses, the occupiers of which are under covenant to repair, that he will keep either house in such state as to enable the covenants with respect to the other to be performed (/). Much less is there an implied covenant by the landlord to repair fences separating the demised land from his own (r/). Although in letting a furnished house the lessor impliedly promises that it is reasonably fit for occupation (//), in the absence of any agreement on the subject, a person who agrees to take a house unfurnished must take it as it stands, and cannot call on the lessor to put it into a condition which makes it fit for living in (t). Before a person takes, or agrees to take, a lease of a house for a long term, with the usual covenants to keep it in repair during the term, he should have the j^remises carefully examined and reported on by an experienced surveyor ; otherwise he may unwittingly incur very serious liabilities, especially if the foundations are defective, or the house is so slighth' and cheaply built as not to be likely to last during the whole term, without considerable repairs, which is not unfrequently the case. Even where the premises become in a dangerous state for want of substantial repairs, and the landlord has notice to that efi"ect, there is no implied obligation on his part to do any such rejiairs (A). (6) For exception in case of letting at certain low rents, see Housing of Working Classes Act, s. 14, and p. 185, ante. (c) Hart V. Windsor, 12 M. & W. 68. (f^) Sutton V. Temple, 12 M. & W. 52 ; Ershinc v. Adcane, 42 L. J., Ch. 835. (c) Ante, 184 ; Pomfret v. Ricroft, 1 Wms. Sannd. 321, 322, note (1) ; Pindar V. Ainsley, cited 1 T. R. 310, 312. As to fire, see Lofft v. Dennis, 1 E. & E. 474 ; 28 L. J., Q. B. 168. (/) Coleheck v. Girdlers' Co., 45 L. J., Q. B. 225. (rj) Erskine v. Adeanc, 42 L. J., Ch. 835. (/t) Smith V. Marrahle, 11 M. & W. 5 ; Wilson V. Finch-Hatton, 2 Ex. D. 336 ; 36 L. T. 373 ; ante, 184. (i) C'ha2}2)ell v. Gregory, 34 Beav. 250. {k) Gott V. Gandy, 2 E. & B. 845. Sect. 3. — Eemedy for Non-repair (by Entry to Eepair). 639 Sect. 3. — Remedies for Non-repair. t^n. XVI. s. 3. /• IT 7 /• Itemed ij for (a) By exercise of Bight of Entry to Bepair. Xon-rejmir {by Entry). A stipulation that the landlord may re-enter for the purpose of . . ,1 , , . . • 1 . , 1 • 1 1 Eight to enter Viewing the state oi repair is veiy common!}- inserted m leases, and to Repair. a further stipulation is not unfrequenth^ added, that the landlord may upon hreach of the tenant's covenant himself execute necessary repairs at the tenant's expense. "SVithout a distinct stipulation to that effect a landlord has no right to enter his tenant's premises to repair them (J) : although the hreach of the tenant be clear, although the landlord, be liable to a forfeiture under a superior lease, and. although the entry be by leave of sub-tenants, he commits a trespass which will be restrained by injunction {m). Where premises which were sub-let became out of repair, and the superior landlord gave notice to his immediate lessee to repair them at the peril of forfeiting his lease ; and the sub-lessee, after receiving notice to repair, neglected to do so, whereupon the lessee, in order to avoid a forfeiture of his whole estate, entered on the premises, and put them in tenantable , rejDair ; it was held that though he might be a trespasser for so doing, yet that he might recover against his sub-tenant the whole expense so incurred, notwithstanding that the premises were afterwards entirely rebuilt before the action for the recovery of such expense was brought («). Generally speaking, the tenant or occupier, and not the landlord, is Liability to liable to third persons for any accident or iniurv occasioned to them -B by the premises being in a dangerous condition from non-repair (o). (b) By Action for Damages. If the demise be under seal, the remedy for non-repair, &c. is by action on the covenant. In the case of reciprocal covenants cross- By Action for actions would have to be brought (jj) before the Judicature Act, but ' '° ' a counter-claim may not be set up b}' the defendant. If the demise be not under seal, the remed}- is b}- action on the simple contract. An action for non-repair maj' be maintained by the landlord during the continuance of the term (g), and in such action the proper measure Damages of damage is, not the amount that would be required to put the fn"u°"to^™' premises into repair, but the amount to which the reversion is Eeversion. {I) Barker \. Barker, 3 C. & P. 557 ; 2G R. R. 350. Ncale V. Wijllie, 3 B. & C. 533 ; 5 D. & R. (o) Gicinnell v. Earner, L. R., 10 C. P. 442 ; 27 R. R. 418 ; Worcester School 658. See this question fully discussed. Trustees \. Roiolands, 9 C. & P. 739. Chap. XIX., post. (m) Stacker v. Planet Building Society, {]}) Leeds v. Chectham. 1 Sim. 151 ; 5 27 W. R. 877— C. A., affirming decision of L. J., Cli. 105 ; 27 R. R. 'l81. Jessel, M.R. [q) Luxmorc v, Bobson, 1 B. & A. 584; (>i) Collcy V. Streeton, 2 B. & C, 273 ; 19 R. R. 396. 640 Chap. XYI. — The Preservation of the Premises. Cii. XVI. s. 3. Itenudij for Non-repair {by Action). Damages — contd. Second Action. Eight to Jury in County Court. Damages at End of Term. Substantial Damages, though Buildings abcut to be juilled down. depreciated in marketable value by the premises being out of repair (r) — an amount which might be practically equivalent to nominal damages in the case of a lease having many years to run, but which would be larger and larger, the shorter the residue of the term happened to be. The landlord is not bound to expend the damages recovered in repairing the premises (s), and yet continues to have the benefit of the covenant to repair, upon which he may sue again, if the tenant continue to break it ; and if he has accepted a payment into court in a first action for not repairing during the term, he is entitled in a second action at the end of the term for not leaving in repair to recover the amount required to put the premises into repair less the sum paid into court in the first action (t). If the case be tried in a county court, and the claim be for more than 51., either party has an absolute right to a jur}- by virtue of s. 101 of the County Courts Act, 1888, and rule 3 of the County Court Rules, 1889 (m). Upon the execution of a writ of inquiry in an action for dilapida- tions, two surveyors were called on each side. Those called by the plaintiff estimated the dilapidations, the one at 119^., the other at 124Z. Those called for the defendant estimated them, the one at 65L 15s., the other at 681. The jury returned a verdict for only 36L 10s. The court ordered the inquisition to be set aside without costs, unless the defendant would consent to the verdict being entered for 651. 15s. (x). In an action for non-repair, and leaving out of repair at the end of the term, the jury may give to the landlord not only the amount of the actual expense of the repairs, but also a compensation for the loss of the use of the premises whilst they are necessarily undergoing repair (?/). Although buildings are intended to be immediately pulled down and rebuilt either b}' or for an incoming tenant, the landlord may recover more than nominal damages against the outgoing tenant for not performing the covenant to leave in repair (z) ; and he may recover the exact amount at which the dilapidations may have been assessed at, on the ground that a right of action for such damages accrued at the end of the tenancv and that nothing done afterwards could affect (r) Smith v. Peat, 9 Ex. 161 ; 23 L. J., Ex. 84 ; Tnrner v. Lamb, 14 M. & AV. 412 ; Worccstei- School Trustees v. Rowlands, 9 C. & r. 734, 739 ; Coiuard v. Grecjory, L. 1?., 2 0. P. 153 ; Mills v. East London Union Guardians, L. R., 8 C. P. 79 ; 42 L. J., C. P. 46. (.«) Worcester School Trustees v. Row- lands, 9 C. & P. at p. 639. (t) Henderson V. Thome, [1893] 2 Q. B. 164 ; 62 L. J., Q. B. 586 ; 69 L. T. 430 ; 41 W. R. 509. (n) Metcalfy. Birtle, S. J., Feb loth, 1890. [x) Weeding \. Mason, 2 C. B., N. S. 382. (?/) Woods V. Pope, 6 C. & P. 782; 1 Bing. N. C. 467. (z) Raidings v. Morgan, 18 C. B., N. S. 776 ; 34 L. J., C. P. 185 ; 14 Jur., K S. 564 ; 12 L. T. 348 ; 13 W. R, 746 ; Morgan v. Hardy, L. R., 17 Q. B. D. 770. Sect. 3. — Eemedy for Non-repair (by Action). 641 such right (a). This rule applies to a case where the landlord has relet on a covenant b}' a new tenant to put the premises in repair and such covenant has been performed (h). In an action for breach of covenant in a sub-lease to repair, Avhereby the plaintiff's term in the premises was forfeited, the plaintiff cannot recover the value of his term if the superior landlord has brought his ejectment for the non-repair, as well as for breach of other covenants not contained in the sub-lease, if it is not proved that the forfeiture was caused by the acts of the defendant ; but he may recover the amount of dilapidations at the time of the ejectment, though his own term is determined (c). He may recover substantial damages for uon- perfoi'mance of the covenant to repair, &c. contained in the sub-lease, notwithstanding both he and the defendant have been ejected by the superior landlord for non-payment by himself of the rent reserved in the original lease (r/) ; but if he do repairs himself to save a forfeiture, he cannot recover the cost of such repairs from the sub-tenant ((;). Where the covenants differ from those in the original leases, and there is no covenant to indemnify the lessee against breach of cove- nants in the original lease, the lessee cannot recover the costs of an action brought against him by the original lessor for the mere dilapidations which he might have paid for before that action was commenced (/) ; or which he might have afterwards paid into court (g). A covenant to repair contained in a sub-lease, though in the same language as the covenant in the original lease, yet may be different in effect, owing to the sub-lease having been granted subse- quently to the original lease, and when the premises had become in a different condition (r/). But the measure of damages for breach of the covenant to repair is not the same in the case of a sub-lease as in that of a direct lease. AVhere the sub-lessee has notice that there is a superior landlord the mesne landlord's liability over to the superior landlord must be taken into account, and the cost of putting the property into repair at the end of the term may properly be considered for that purpose (li). If a lessee assign over, subject to the performance by the assignee of the covenants in the lease from the day of assignment, and one of the covenants is a general one to repair and keep in repau-, on which Ch. XVI. s. 3. Remedy for Non-repair {by Action). Breach of Covenant in Sub-lease. Measure of Damages. Conquest v. Ebbctts. Action by Lessee against Assignee. (ff) Inderwich v. LeMch, C. & E. 412 ; Joyner v. Weeks, infra. [b) Joyner v. IVeeks, [1891] 2 Q. B. 31 ; 60 L. J., Q. B. 510 ; 65 L. T. 16 ; 39 W. K. 583— C. A. (c) Cloiv V. Brogdcn., 2 M. & O. 39. {d) Davies v. Underwood, 2 H. & N. 570 ; 27 L. J., Ex. 113. (c) WiUiams v. JVillimns, 43 L. J., C. P. 382 ; L. R., 9 C. P. 659 ; 30 L. T. 638 ; 22 W. R. 706. L.T. (/) Pcnley v. Watts, 7 M. & W. 601 ; Loqan v. Hall, 4 C. B. 598. {rj) Walker v. Hatton, 10 M. & W. 249 ; 2 Dowl., N. S. 263. {h) EbbettsY. Conquest, [1895] 2 Ch. 377 ; 64 L. J., Ch. 702 ; 73 L. T. 69 ; 4i W. R. 56 ; 12 R. 430— C. A. aftirnicd by House of Lords iw Conquest V. Ebbctts, il?>^&'\ A.C. 490 ; 65 L. J., Ch. 808 ; 75 L. T. 36 ; 45 W. R. 50. 41 642 Chap. XYL— The Preservation of the Premises. Ch. XVI. s. 3. the lessor afterwards recovers against the lessee, the latter can Eemcdyfor Non-repair [by Action). Service out of jurisdiction. Entry or Ejectment for JSfon-repair, &c. Effect of Double Covenant to repair, and to repair after Notice. Baylis v. Lc Gros. recover over against his assignee for those dilapidations onl}'- which have taken place after the assignment (?'). Where an assignee covenanted to indemnify the lessee, and the lessee, being sued b}'' the lessor, paid money into com*t, but incurred extra costs, it was held that these extra costs were recoverable under the covenant of indemnity, as being the necessary result of the breach {k). Service on a defendant resident out of the jurisdiction, as in Scotland, may be ordered under Order XL, rule 6, of the Rules of the Supreme Court in an action on a breach of covenant to rejDair premises in England {I). (c) Remedy for Non-repair hy lie-entry. Unless there be a proviso for re-entry applicable to the covenants to repair, &c., a breach of such covenants will not warrant a re-entry for a forfeiture, but only an action for damages {ni). Where there is such a proviso, the lessor or his assigns may re-enter or maintain an ejectment for the whole of the demised premises, if an}' part thereof be out of repair, at an}' time during the term ; and might (at common law) without giving any previous notice to the lessee or his assignee, or sub-tenant, to repair {n), and the same rule applied at common law where there was merely an agreement for a lease, with a proviso for re-entry on non-performance of covenants (o). But this has been altered by sect. 14 of the Conveyancing Act, the effect of which has been alread}' considered (ante. Chap. VIII., Sect. 6, p. 348). Where a lease contained a general covenant to repair and keep in repair the demised premises during the term, and another covenant to repair specific defects within three months after notice, and a proviso for re-entry on breach of any covenant ; it was held that such cove- nants were perfectly distinct, and that the landlord might lawfully re-enter for a forfeiture created by the non-repair pursuant to the general covenant, without giving any previous notice to repair {p). And even where a notice is given, it will be taken to apply to the general and not to the specific covenant, if the words be general.] Therefore, where the landlord gave the tenant a notice requiring \\\n\ forthwith to put all the demised premises into repair, agreeable] to the covenant in that behalf, it was held, that such notice woulc not prevent an ejectment being brought within three months after- wards for breach of the general covenant to repair (5). But if the| (i) Hmvkins v. Sherman, 3 C. & P. 459. (k) Howard v. Lovcgrove, 23 L. T. 896. (l) Tassell v. Hallcn, [1892] 1 Q. B. 821 ; 61 L. J., Q. B. 159 ; 66 L. T. 196 ; 40 W. E. 221, approving Kayc v. Suther- land, 20 Q. B. D. 147, and Chap. XX., Sect. 4 (a), post. (m) Cole Ejec. 403, 422. {n) Baylis v. Lc Gros, 4 C. B., N. S. 587. (o) Haync v. Cumminys, 16 C. B., N. S^ 421. (j)) Baylis V. Lc Ctos, 4C. B.-IST. S. 587.: \q) Roc d. Goatley v. Paine, 2 Camp. 520; Few v. Perkins, L. R., 2 Ex. 92 ;| Sect. 3. — Eemedy for Non-repair (by Ee-entry). 643 words be specific, the notice will be taken to give the time specified, Ch. XVI. s. 3, and apply to the specific covenant to repair after notice. Therefore, Remedy for ^ ^ -> ^ -^ ... Non-repair {bij where the landlord gave the tenant notice to I'epair tvithin three months Re-entry). then next, it was held that such notice amounted to a waiver of any Covenant to forfeiture during the three months for breach of the general covenant S^^l^?"" ^^^^^ " , ... Notice — cont. to repair, and that no ejectment could be maintained until after the expiration of that period (?■) : and where a lease contained a general covenant to repair, &c., with a proviso for re-entry in case of non- repair for three months after notice, or on breach of any other covenant, that no ejectment could be maintained for non-repair until after the expiration of a three months' notice (.s). A lease from A. to B. contained a general covenant to repair ; also a covenant to repair specific defects within two months after notice, in failure whereof A. might re-enter and do such repairs at B.'s expense, with power to distrain for the amount as for rent in arrear ; also a proviso for re-entry on breach of any covenant. It was held, that a notice by A. to B. to do certain repairs, in default whereof A. would do them, and charge B. with the expense, pursuant to the lease, amounted to a waiver of any forfeiture for breach of the general covenant to repair committed prior to the expiration of the notice ; and that after expiration of notice, although A. might enter and do the repairs at B.'s expense, yet he could not main- tain ejectment for any previous breach of the general covenant to repair if) . Where there is a general covenant to repair and hcep in repair K"on-repair is ,., .. ..,,p I n ^ contiuuing durmg the term, non-repan* is a continuing breach oi covenant, lor Breach. which an ejectment ma}^ be maintained, if the lease contain a proviso for re-entry applicable to such covenant (»). But a covenant to imt in repair is not a covenant the breach of w^hich is continuing (a;). Acceptance of rent, which becomes due pending a notice to repair, is no w^aiver of a subsequent forfeiture occasioned by non-compliance with such notice {y). Acceptance of rent after the commencement of an ejectment is no waiver of the forfeiture for which such action was brought {z). 36 L. J., Ex. 62. Ill the latter ease, the : [1898] 1 Q. B. 276, and p. 344, ante, notice was to repair "in accordance with {u) Doc d. Heminings v. Durnford, 2 the covenants,^' in the plural. C. & J. 667 ; Doe d. Baker v. Jones, (r) Z)ocd. Morecraft v. Meux, 4 B. & C. 5 Exch. 498 ; Bennett v. Herring, 3 C. B., 606 ; 4 L. J., K. B. 4 ; 28 R. R. 426. N. S. 370. (s) Doc d. Eankin v. Brincllcy, 4 {x) Coivanl v. Gregory, L. R., 2 C. P. B. & Ad. 84. ' 153. {t) Doe d. Fiutzcn v. Lewis, 5 A. & E. {y) Doc d. • Eankin v. Brindlcy, 4 277 ; and see Doe d. Pittman v. Sutton, B. & Ad. 84. 9 C. & P. 706. [z) Doe d. Morecraft v. Mciix, 1 C. & P. As to notice under Conveyancing Act ill 346, and (r) supra; Jones v. Carter, 15 a case where there is a breach of covenant M. & W. 725. to repair after notice, see Pcnton v. Barnett, 41—2 644 Chap. XVl. — The Preseevation of the Premises. Ch, XVI. s. 4. Tenant's Obligation to Cultivate. Under what Circumstances the Liability arises. Four-course System. Contracts respecting Mode of Tillase. Sect. 4. — Obligations to Cultivate. The mere relation of landlord and tenant creates an implied obligation on the j^art of the tenant to manage and use a farm in a hiisbandlike manner according to the custom of the country where the premises are situated (a), which custom is incorporated in the lease or agreement unless it contains some express covenant or promise inconsistent with such custom and sufficient to exclude it (/>). A covenant to cultivate a farm according to the custom of the country on the four-course system, means only so far as such custom is universally obligator}^ in that part of the country (c). In order to constitute such a custom, or, more properly speaking, usage, as is binding on the tenant, it is not necessary that it should have been immemorially adopted ; it is sufficient if there be a general usage applicable to farms of a similar description (d). In an action against a tenant on a jiromise that he would occupy a farm in a good and husbandlike manner, according to the custom of the country ; an allegation that he had treated the estate contrary to good husbandry and the custom of the country, is j^roved by showing that he had treated it contrary to the prevalent course of good husbandry in that neighbourhood ; as by tilling half his farm at once when no other farmer tilled more than a third, though many tilled only a fourth ; and it is not necessary to show any precise definite custom or usage in respect to the quantity tilled (e). The implied obligation to manage a farm in a husbandlike manner was held to be broken, when evidence was given of dung and compost having been carried off the Ijremises, without any stipulation or agreement to that effect having been entered into {/). Covenants respecting the mode of tillage to be adopted by the tenant must necessarily vary so much in their terms, according to the agreement of the parties, that little can be said on the subject. They are generally framed in accordance with the custom of the country where the lands are situated, with such variations as the parties specially agree on. Such covenants are introduced, in nearly (a) Poiolcy V. Walker, 5 T. R. 373 ; 2 K. R. t)19 ; Legh v. Hewitt, 4 East, 154. These cases decide that there is an obligation to cultivate ^jroperly, not that there is an obligation to continue culti- vating in spite of losses certain to arise from low prices for agricultural ]iroduce and heavy expenses for agricultural labour. But it is submitted that such an obliga- tion exists, though (see per Parke, B., in Mutton V. Warren, infra) it is not waste for a tenant to leave land uncultivated. (6) Hatton v. Warren, 1 M. & W. 466 ; Wigcjlcsworth v. Dallison, 1 Doug. 201 ; 1 Smith, L. C. ; Senior v. Annytac/e, Holt, 197; 17 R. R. 627 ; Clarke v. Roystonc, 13 M. & W. 752 ; Wilkins v. Wood, 17 L. J., Q. B. 319; 12 Jur. 583. As to "custom of country," see Chap. XX., Sect. 5, post. (c) Neicson v. Smythies, 1 F. & F. 477 ; 3 H. & N. 840. {d) Dalhy v. Uirst, 1 B. & B. 224 ; 21 R. R. 577. (t) Lcijh v. Hcivitt, 4 East, 154. (/) loivley v. Walker, 5 T. R. 373; 2 R. R. 619. Sect. 4. — Tenant's Obligation to Cultivate. 645 every instance, for the protection and benefit of the landlord, and to Ch. XVI. s. 4. prevent the tenant from overcropping and deteriorating the property' Temmfs , . , , , . . . . . Obligation to during the term, and leaving it in an impoverished state at the CuUii-ate. expiration thereof. Those of most common occurrence are the covenant not to break up pasture (which might be done for the purpose of the heavy crops derivable at first from land so broken up) or to pa}' an increased rent for every acre broken up ; the covenant not to sell ha}', &c., but to consume it on the land by cattle ; and the covenant to leave all manure on quitting. Upon a covenant not to plough any ancient meadow, and, if done, Not to Plongli to pay an additional yearly rent per acre, the increased rent is not a "^ ^^ °^" penalty, but a liquidated satisfaction fixed and agreed upon by the parties (f/). A covenant not to sell or carry away from the demised premises Xot to Sell any hay, straw or manure which should be grown or produced ^^' thereon, under the increased rent of lOZ. for every ton so sold or carried away, and so in proportion for any greater or less quantity, but to consume the hay and straw by cattle, has been construed as a covenant giving the lessee the right to sell the hay and straw, ou payment of the increased rent, and that, therefore, the breach was not well assigned Qi). Where a lessee covenanted to leave fodder, *!V:c., on the determination of his lease, and he became bankrupt, and his assignees refused the lease, it was held that they were not entitled to take the fodder (/). AVliere a farm lease contained a covenant by the lessee that "he should not nor would, during the last year of the term thereby granted, sell or remove from the said farm and lands any of the hay, straw and fodder which should arise and grow on the said farm and lands : " it was held, that the prohibi- tion was not restricted to hay, straw and fodder which arose and grew on the farm in the last year of the term, but extended to that which had arisen and grown at any time during the term {k). Where the outgoing tenant covenants with his landlord to leave Coutracts the manure made by him on the farm, and sell it to the incoming ^^iamri-e"^ tenant at a valuation to be made by certain i:)ersons, the effect of such covenant is to give the outgoing tenant the right of on-stand for the manure upon the farm, and the possession of and property in it remains in him in the meantime. Therefore if the incoming tenant remove and use it before such valuation, he is answerable to the outgoing tenant in trespass (/) . A covenant by the lessee that he would sufficiently muck and manure the land demised with two {g) Rolfe V. Peterson, 2 Bra. P. C. 436 ; Ex parte Whittington, Buck, 8". 6 1(1. 470 ; Jones v. Green, 3 Y. & J. 298. {k) Gala v. Bates, 3 H. & C. 84 ; and see {h) Legh v. Lillie, 6 H. & K 165 ; 30 Massey v. Goodall, 17 Q. B. 310. L. J., Ex. 25. {I) Beatij \. Gibbons, 16 East, 116 ; {%) Ex parte Nixon, 1 Rose, 445 ; 14 R. R. 320. 646 Chap. XVI. — The Peeservation of the Premises. Ch. XVI. s. 4. Tenanfs Obligation to Cultivate. Conversion Farm into Market Garden. of sufficient sets of muck within the last six years of the term, the last set to be laid on the premises within three years of the expiration of the term, is satisfied with the tenant's laying on two sets of muck within the last three years of the term, if he should think proper sO' to do (»i). A condition not to sell, cart, or conve}^ away any dung, compost, or manure from a farm, is broken by the removal of the dung of two cows which had been sold by the tenant, but were permitted by him to remain on the premises, they being entirely provided by the buyer with provender from elsewhere {)i). The conversion into a market garden of, and the erection of glass- houses on, a farm demised by lease containing a covenant for management "in a good, proper and husbandlike manner according to the best rules of husbandry practised in the neighbourhood" has. been held no breach of such covenant, so as to be restrainable by injunction (o). Definition of Waste. Voluntary Waste. Permissive Waste. Meliorating Waste. Sect. 5. — Waste{'p). (a) What is Waste. Waste (vastum) is defined to be a spoil or destruction to houses, gardens, trees, or other corporeal hereditaments, to the injury of the reversion or inheritance, and it has two divisions of great practical importance, voluntary waste, and permissive waste. Voluntary waste is actual or commissive, as b}' pulling down houses, or altering their structure, — the kind of damage which is sometimes provided against by express stipulation not to convert a house into a shop, &c. Permissive waste is a matter of negligence and omis- sion only, as by suffering buildings to fall or rot for want of necessary rej)arations (q) ; the kind of damage which, where the contract of tenancy is in writing, is almost invariably provided against by express agreement to repair. It is not waste to omit to perform a covenant to put the demised premises into such repair as A. B. had previously put them into (r). The action for waste can only lie for that which would be waste, if there were no stipulation respecting it (s). In addition to these two great divisions of waste, it is desirable to say a word or two about "meliorating waste" and "equitable waste." Meliorating or ameliorating waste is such voluntary waste as improves the demised premises, as where a tenant puts a new front (m) Pownallv. Moorcs, 5 B. & A. 416. {n) Hindu v. Follitt, 6 M. & W. 5'29. (o) Mciix v. CoUni, [1892] 2 Cli. 253 ; 61 L. J.. Ch. 449 ; 66 L. T. 86. (/)) For the law of Waste, generally, see Yool on Waste, &c. (1863, Maxwell). {q) Co. Lit. 53 ; Wood's Inst. 521 ; Bac. Abr. tit. Waste {V>.). (r) Jones V. Hill, 7 Taunt. 393, 396 ; 18 R. K. 520. (s) Id. 396. Sect. 5. — Waste (Definition of). * 647 to liis house : in respect of such waste, it seems that unless sub- Ch. XVI. s. 5. stantial damages be proved, the tenant will not be interfered with ,„ Waste I A n n [Befimtionof). by injunction. In Dolierty v. Ailman (t), where a lease was for 999 years, of which about 900 were unexpired, an injunction to No Injunction restrain meliorating waste was refused. It appears too that if the ° landlord sue, and the jury give nominal damages only, the tenant is entitled to have judgment entered for himself, as was held in a No Damages. case where the tenant converted three closes into garden ground and built upon them, and the jury assessed the damages at a farthing for each close (u). Equitable waste consists in acts of gross damage, usually the Equitable cutting down ornamental timber b}' a tenant "without impeachment of waste," and is so termed because before the Judicature Act only a court of equity took cognizance of it. It is now, by s. 25, sub-s. 3, within the cognizance of an}^ branch of the Supreme Court; but as it can generally be committed by tenants for life only, contracts of tenancy between a landlord and tenant being never made without impeachment of waste, it is onl}' necessar}^ to mention it here for the purpose of pointing the distinction. Tenants for life, however (see p. 650), were made liable by the Statute of Gloucester, and cases in which the liability of a tenant for life for waste is concerned will sometimes throw light upon the liability of a tenant under a landlord. Voluntary waste chiefl}' consists in felling timber trees (x), pulling What Acts- down houses (y), opening mines or pits (z), or changing the course of Voluntarv husbandry (a). Whatever does a lasting damage to the freehold or Waste. inheritance is waste ; therefore, removing wainscots, floors or other things once fixed to the freehold of a house, is waste (h) ; and if the windows be broken or carried away it is waste, although the}^ were glazed by the tenant himself, for the glass is part of the house (c). If a house be destroyed by tempest, lightning, or the like, which is the act of God, it is not waste {d) ; but if the house be uncovered by tempest, it is said that a tenant for years must repair it, even though there be no timber growing upon the ground, for the tenant must at ]iis peril keep the house from wasting (^O- Waste may be done in houses b}- pulling them down, or suffering them to be (0 DohertijY. Ailman, 3App. Cas. 709 ; Channon v. Patch, 5 B. & C. 897. 39 L. T. 129, applied in the compensation (y) Bac. Abr. tit. fFaste (C. 5) ; Co. case of Pontypridd Imijrovements Co. and Lit. 53. Macintosh Arbitration, 61 L. J., Q. B. {z) Bac. Abr. tit. JFaste (C. 3). 164, to a rebuilding by a lessee having an («) Id. (C. 1). unexpired term of fifty years. See also (h) Id. (C. 6). Jones V. Chapiocll, L. R., 20 Eq. 539, and (c) Co. Lit. 53. Menx V. Cobley, supra, note (o). , {d) Bac. Abr. tit. JFaste (E.) ; Co. Lit. {u) Harrow Schoolv. Alderton, 1 B. & P. 53 a ; Smith, L. & T. 261 (2nd ed.). 86 ; 5 R. R. 546. («) Co. Lit. 53 a ; Bac. Abr. tit. Waste (.t) Bac. Abr. tit. Waste (C. 2). See (C. 5) ; Smith, L. & T. 262 (2nd ed.). Phillips V. Smith, 14 M. & W. 589 ; 648 Chap. XVI. — The Peeservation of the Premises. Oh. XVI. s. 5. Waste (Definition of). Waste in Warrens, Parks, &c. Waste by digging Mines, «S:c. By not repairing Sea- walls, &c. By changing the Natnre of the Property. uncovered, wliereb}' the rafters or other timber of the house become rotten (/) ; but merely suffermg them to be uncovered without rotting the timber, is not waste : or if the house be uncovered when the tenant comes in, it is no waste to suffer it to fall down (/), although it would be otherwise if the tenant were to pull it down, unless he re-erect it again forthwith (r/) ; but if a house built de novo was never covered in, it is not waste to abate it (/<■)• If a lessee permit the walls to deca}^ for default of daubing or plastering, that is waste (i), and if he suffer the houses to be wasted, and then fell down timber to repair the same, it is double waste {j ) : it is also waste not to repair fences (/b). If the tenant of a dovehouse, warren, park, fishpond, or the like, take so many that such sufficient store be not left as he found when he came in, it is waste (/) ; and to suffer the pale to decay, whereby the deer are dispersed, it is waste {I). If the lessee of a warren by charter or prescription plough the land, it is waste ; but it is other- wise if it be only land stored with conies, and not a legal warren ; and stopping and digging coney burrows is not waste in a warren {m). Digging for gravel, lime, clay, brick-eartli, stone or the like, or for mines of metal, coal, or the like, hidden in the earth, and not open when the tenant came in, is waste {n) : but the tenant may dig for gravel or clay for the reparation of the house (though no pit were open at the time of the lease), as well as he may take convenient timber trees (o). If the pit or mines were open before, it is no waste if the tenant continue to dig them for his own use ; for it has become the mere annual profit of the land (^j ). It is waste to suffer a wall of the sea to be in deca}^ so as by the flowing and reflowing of the sea the meadow or marsh be surrounded, whereby it becomes unprofitable {q) ; but if it be surrounded suddenly by the rage or violence of the sea, as by tempest, without any default of the tenant, it is not waste (r) : so if the tenant do not repair the bank or walls against rivers, or other waters, whereby the meadows or marshes are surrounded and become rushy and unprofitable, it is waste (s). If the tenant convert arable land into wood, or e converso, or meadow into arable, it is waste ; for it changes not only the course (/) See note (c) on p. 647. {g) Co. Lit. 53 a. (A) Co. Lit. 53 a [note 345]. (i) 2 Koll. Abr. 816, pi. 36, 37. 0') Co. Lit. 53 b. {k) Clicetliam v. Hanipson, 4 T. R. 318 ; 2 R. R. 397. (1) Co. Lit. 53 b. (vi) id. ; Moyle v. Moi/Je, Owen, 66 ; Lurting v. Conn, 1 Ir. Ch. Rep., N. S. 273. {a) Bac. Abr. tit. Waste (C. 3) ; Co. Lit. 53 b ; Viner v. Vaughan, 2 Beav. 466. (o) Co. Lit. 53 b. {]}) 1 Wood's Inst. b. 2, c. 5, s. 41 ; 2 Blac. Com. 282 ; Co. Lit. 53 b, 54 b ; (Jlavering v. Clavering, 2 P. Wms. 388. (q) Co. Lit. 53 a (/•) Id. 53 b; Bac. Abr. tit. Waste (C. 1). (s) Co. Lit. 53 b ; Callis on Sewers, 146. Sect. 5.- — Waste (Definition of). 649 of husbandly, but creates a difficult}' in the proof of the title (0 ; and this would appear to be the case even where the act is done accordinj^ to the custom of the countr}^ for the purpose of amelioration (u). If a tenant suffer arable land to lie fresh, and not manured, this is not waste, but ill-husbandiy (a:). If he pull down a malt-mill and build a corn-mill, it is waste (y) : so if he convert acorn-mill into a falling- mill, it is waste, though the conversion be to the lessor's advan- tage (z) : so the conversion of a brew-house worth 120/. per annum into other houses worth 200Z. per annum is waste (y). Converting two chambers into one, or e converso, or converting a hand-mill into a horse-mill, is waste (a). It was laid down by Lord Coke, that if the tenant build a new house, it is waste ; and if he suffer it to be wasted, it is new waste (h). But such is not the law at the present time. To build a new house on the demised land is not waste, unless it be an injury to the inheritance in the sense of destroying identity, " by what is called destroying evidence of the owner's title, and that is a very peculiar head of the law, which has not been extended in modern times " (c). Where a power of leasing was given, so that no clause should be contained in the lease, giving power to the lessee to commit waste, or exempting him from punishment for committing it ; it was held, that a lease was good, though it contained a stipulation that the lessee should erect a new dwelling-house, with liberty to pull down some outbuildings, and to use the materials in erecting the house {d). It was enacted by sect. 19 of the Agricultural Holdings Act, 1875, (38 & 39 Vict. c. 92), " where a tenant commits or permits waste," and claims compensation under that act in respect of an improve- ment, "then the landlord shall be entitled, by counter-claim, but not otherwise," to obtain compensation on his part, provided that the waste was not committed or permitted more than four j^ears before the determination of the tenancy. This act is repealed and replaced by the Agricultural Holdings Act, 1883, 46 & 47 Vict. c. 61, s. 6 of which provides that "in the ascer- tainment of the compensation" pa^-able to the tenant under that act ** there shall be taken into account, in reduction thereof, any sums due to the landlord in respect of" (amongst other things) "any waste Ch. XVI. s. 5. TTaste {Definition of ). (t) London {City) v. Greiime, Cro. Jac. 1S2 ; Bac. Abr. tit. Waste (C. 1) ; Co. Lit. 53 b ; Hob. 234 ; Murphy v. Daly, 13 Ir. Com. L. R. 239. (m) Simmons v. Norton, 7 Bing. 640. {x) 2 Roll. Abr. 8i4 ; Button v. Warren, 1 M. & W. 472. (2/) Cole V. Green, 1 Lev. 309 ; >S'. C, nom. Cole v. Forth, 1 Mod. 95. {z) Lorulon {City) v. Greymc, supra. («) Co. Lit. 53 a [note 344]. And see Young v. S^/cncer, 10 B. & C. 145 ; Queen's College, Oxford v. Hallett, 14 East, 489 ; 13 R. K. 293. {b) Co. Lit. 53 a. (c) Jones V. Chappell, L. R., 20 Eq. 539 ; 44 L. J., Ch. C58, per Jessel, M.R., citing Doe V. Earl of Burlington, 5 B. & Ad. 517. {d) Doe <\. Earlof Egremont Y. Stephens, 6 Q. B. 208 ; Cole Eject. 427. By building a House. Jones V. Chappell. Construction of Leasing Power against "Waste. Counter-claim in respect of Waste under Agricultural Holdings Act. 650 Chap. XVL — The Preservation of the Premises. Ch. XVI. s. 5. Waste {Definition of). At Common Law. Statutes of Marlebriclge. Statutes of Gloucester. Coiistrnction of Statutes. committed or permitted by the tenant." This section prescribes, similarly to s. 19 of the Act of 1875, the limit of four years, the words being that, " nothing in this section shall enable a landlord to obtain under this act compensation in respect of waste by the tenant or of breach by the tenant committed or permitted in relation to a matter of husbandry more than four years before the deter- mination of the tenancy ; " and s. 7 provides for the landlord's counter-claim. See Chap. XXI., post. (b) Remedies for Waste. At common law an action for waste lay only against tenants by the curtes}^ tenants in dower and guardians, whose estates were created by act of law (c). But tenants for life or years had an interest in the land by the act of the lessor, who might and ought to have provided against waste by some express covenant or condition ; and such tenants were not liable at common law either for voluntary or permissive waste (/). The Statute of Marlebridge (52 Hen. 3, c. 23), s. 2, enacts that — ■ Farmers during their terms shall not make ivaste, sale or exile (g) in houses, woods or men, nor of anything belonging to the tenements that they have to farm, without special licence had by writing of covenant, making mention that they may do it ; which thing if they do and thereof be convict, they shall yield full damage, and shall be punished by amerciament grievously. The Statutes of Gloucester (6 Edw. 1) by c. 5 enacted that a man should have a writ of waste against a tenant for term of life or years, and added that " he which shall be attainted of waste, shall lose the thing which he hath wasted, and moreover shall recompense thrice so much as the waste shall be taxed at." Read by itself the Statute of Gloucester plainly worked a forfeiture of the demised premises for waste, but the abolition of the Avrit of waste, along with real actions generally, by the Eeal Property Limitations Act, 1833, 3 & 4 Will. 4, c. 27, s. 36, was generally considered to carry with it the abolition of the special penalties of forfeiture and treble damages {h) ; and c. 5 of the Statutes of Gloucesterhas been expressly repealed by the Civil Procedure Acts Eepeal Act, 1879, 42 & 43 Vict. c. 59. Upon the two statutes two questions have from time to time arisen. The first question is whether permissive waste is within the statutes. It is laid down expressly by Lord Coke (?) that it is; and the considered judgment in Yellowly v. Gower {h), ^\\nc\\ {c) Greene v. Cole, 2 AVms. Saund. 252 ; Smith, L. & T. 259 (2nd ed.). (/) Ccmntess of Shreiushurys case, 5 Co. R. 13 a ; Cro. Eliz. 777, 784 ; 2 Inst. 145, 299 ; Smith, L. & T. 259 (2nd ed.). {(/) " Vastum, vendicionem sen exilium non faciant." (h) See Williams on Eeal Property, 31 ; 3 Steph. Com. 408. (?) 2 Inst. 145. {k) Yellowly V. Gower, 11 Ex. at p. 294. In Harnett v. Maitland, 16 M. k W. at p. 262, the point appears to have been treated as an open one. Sect. 5. — Waste (Eemedies foe). 651 has been said (/) to have stifled any doubt arising from three cases Ch. XVI.s. 5. in the Common Pleas (???), which are there reviewed, puts it that / 7?^^f jfL "there is no doubt of the liabihty of tenants for terms of years, for \ they are put on the same footing as tenants for life, both as to Tenants for voluntarv and permissive waste." And although the question has Years for • ^ . . rermissive been spoken of as an open one (n) there is express authorit}' that Waste. tenants for years are so liable (o). Lord Coke's view (|?) appears open Davics v. D Civics to question, on the grounds (1) that the Statute of Marlebridge b}" the words make " waste, sale or exile," points to positive acts only, (2) that the special licence spoken of in that statute points to such acts only, being inappropriate to a mere omission to repair, and (3) that it is unreasonable to suppose that the Statutes of Gloucester v/ould have prescribed so harsh a j^enalty as forfeiture for such mere omission. Yclloidy V. Goiccr however would now be probably followed in a Court of First Instance (q), and it is submitted that even in a Court of Appeal it would be considered as having been too long accepted to be now overruled, whatever might be the opinion of a court upon the correctness of that judgment. The almost universal insertion of the express covenant to repair in leases very greatly diminishes the practical importance of the question in the present day : but it should be added that the remedies upon the covenants in a lease have been construed as cumulative upon the remedies for voluntar}^ waste (r), and that if this construction and Yelloiiiy v. Gower be correct, they would be cumulative upon the remedies for permissive waste also. The second question, which is of greater practical importance, is AVh at Tenants what tenants come Avithin the statutes. The words of the Statute statutes. of Marlebridge are " farmers during their terms," and of c. 5 of the Statutes of Gloucester "him that holdeth for term of life or for term of years." (?) In the notes to Greene v. Cole, 2 Coke, in 2 Tnst. 14o, commenting on the Wms. Saunders, at p. 646. Statute of Marlebridge, " includes as well (m) Gibson v. Wells, 1 B. & P. (N. R.) permissive ■waste, which is waste by reason 290 ; 8 K. E. 801 ; Home v. Bcnboic. 4 of omission, or not doing, as for want of Taunt. 764 ; Jones v. Hill, 7 Taunt. 392 ; reparation, as waste by reason of com- 18 E. R. 508. mission, as to cut downe timber, trees, or (?i) In J Food house V. Walker, L. R. , 5 prostrate houses, or the like; and the same Q. B. D. at p. 407 ; per Lush and Field, word hath the Statute {sic) of Gloucester, JJ. ; and in Barnes v. Doivling, 44 L. T. cap. 5, que aver fait waste, and yet it is 809 ; in which latter case it was held that understood as well of passive as of active an equitable estate gave no right of action waste, for he that sutfereth a house to against a tenant for life for permissive decay, which he ought to repaire, doth the waste. In Avis v. Ncu-man, L. R., 41 waste." These words are said b}' Kay, J., Ch. D. 532, it was held by Kay, J., that in Avis v. Ncivman, L. R., 41 Ch. D. at the estate of a legal tenant for life is not p. 534, only to include permissive waste liable for permissive waste. where there is an obligation to repair. (o) Davies v. Davies, 36 W. R. 399, and {q) But see Avis v. Neivman, supra, p. 6, ante, per Kekewich, J. per Kay, J. i})) "To doe, or make waste, in legall (/•) Kecnlyside v. Thornton, 2 W. B. understanding in this place," says Lord 1111. 652 Chap. XYl. — The Preservation of the Premises. Ch. XVI. s. 5. Waste {Remedies). Tenant at Will not lialjle. Nor Tenant from Year to Year. Tenant in Common, &c. Joint Tenants. LiaLilities of Executor. A tenant at ■will is not within the statute, and therefore not liable to an action upon the statute for either kind of waste (s) ; although if he commit waste, he thereby in effect determines his tenanc}', and renders himself liable to an action of trespass at the sviit of the landlord (t). Tenants from year to year are not considered tenants for years, but only as tenants at will (subject and entitled to the usual or agreed notice to quit) ; consequentl}^ the}^ are not liable for either kind of waste under the statutes {it} ; although in the absence of any express stipulation as to repairs, Sec, they are said to be bound to use the premises in a tenantable and proper jnanner, and to keep them wind and water tight, and not to commit waste (ante, p. 646). An " action on the case in the nature of waste " was, under the old terminology, said to lie against a tenant misbehaving in this matter, and such action lies against a tenant holding over in respect of acts of waste committed after a notice to quit (x). A person who has a life interest by survivorship cannot sue for waste committed before his life interest vested (j/). One tenant in common cannot maintain an action on the case, in the nature of waste, against another tenant in common (in possession of the whole, having a demise of the moiety from the first), for cutting down trees of proper age and growth for being cut ; for it is no hurt to the inheritance. If, however, the trees were not fit to be cut, he might maintain such action (z). One tenant in common cannot maintain against another an action of trespass for cutting down in due season and carrying away the whole produce of the common propert}', viz. a crojD of hay (a). But one tenant in common of a close is not entitled to dig and carry away the turf, as such act amounts to a destruction of the propert}', and therefore constitutes an ouster (/>). Where a farm was demised to A. and B. jointly-, and A. sub-let to C, and gave receipts for rent and a notice to quit in his name alone, it was held that A. and B. could not maintain a joint action against C. for pulling down a shed which stood on part of the demised premises (c). An action for waste lies, by virtue of the Civil Procedure Act, 1833, 3 & 4 ^Y. 4, c. 42, s. 2, against an executor of a tenant for (s) Co. Lit. 57 a ; Countess of Shrews- fall v hury's case, 5 Co. li. 13 a ; Cro. Eliz. 777, 589. 784 ; Gibson \. Wells, 1 B. & P. (N. 11.) (x) 290 ; 8 K. R. 801 ; Harnett v. Maitland, (y) 16 M. & W. 254 ; 4 D. & L. 545. (z) {/.) Lit. s. 71 ; Countess of Shrewsbury'' s (a) case, supra. (b) (u) See Auiuorth v. Johnson, 5 C. & P. 837. 239 ; Torriano v. Young, 6 C. & P. 8 ; (c) Leach v. Thomas, 7 C. & P. 327 ; Horse- R. R. . Mather, Holt, K. P. C. 7 ; 17 R. R. Burchell v. Hornsby, 1 Camp. 360. Bacon v. Smith, 1 Q. B. 345. Martin v. Knowllys, 8 T. R. 145. Jacobs V. Seioard, L. R., 4 C. P. 328. Wilkinson v. Hay garth, 12 Q. B. Steel V. Western, 7 Moore, 29 ; 24 682. Sect. 5. — Waste (Remedies for). 653 •waste committed by his testator within six calendar months before ^^^' ^^^' ^- ^' liis death. ^ ^ jRZHdL). The measure of damages in an action for waste is the diminu- T^ p tion in the value of the reversion, less a discount for immediate Damages for payment (f/), but it seems that in a very gross case "vindictive , ,, , . "^ ° Whithamx. damages may be given (e). Kershmc. In an action for commissive, or voluntary, waste, the plaintiff Injunction may claim a writ of injunction against the repetition or continuance y'oluntary of the injury complained of. It will be desirable to indorse the "^^'a^te. writ of summons accordingly, if an injunction be wished for (/) : but the claim may be added afterwards by leave of the court or a judge {(j), and an injunction may be granted by an interlocutory order in " any case in which it shall appear just or convenient" (/<). Before the Judicature Act, sucli an application was usually made to the Court of Chancery {i). It seems that where a lessee commits acts of waste, for which damages merely nominal would be given, the High Court will not grant an injunction against him, if it appear that he does not contemplate committing any further waste, nor assert a right to commit it {h). The remedy by injunction is ordinarily the most efficient which can be adopted, as it prevents that injury whicli, by the other remedies, can only be compensated for after it is done. A lessee will be restrained from working mines b^' instroke from adjoining mines if he has covenanted to sink a pit, and work through that only; but not otherwise (0- He will also be restrained from Pulling down pulHng down a house, and building another which the landlord jjouse^"^" objects to (in), or from making material alterations in a dwelling- house, as by changing it into a shop or warehouse {n) ; or removing plate-glass windows from the shop or front of the house (o) ; or from throwing down inclosures, or pulling down houses (p); or from ploughing up meadow or pasture which has not been ploughed Ploughing up for twenty years {q), unless indeed a penal rent of so much per acre P^^*^^^- is reserved (r). So an injunction will be granted to restrain a tenant from year to 3'ear, under notice to quit, as in the case of a lessee {d) Whitham v. Kershaw, 16 Q. B. D. (m) Smyth v. Carter, 18 r>eav. 78. 613 ; 54 L. T. 124 ; 34 W. R. 340— C. A. (n) Douglas v. Wiggins, Johnson Ch. (f) lb. per Bowen, L.J. R. (American), 435; 2 Story Eq. Jur. (/) R. S. C, Ord. II., Rule 1 ; Appendix s. 913. (A.), Part II., Sect. 4. (o) Brocklesiury v. Mitnn, W. Notes, (f/) R. S. C, Ord. III., Rule 2. 1870, p. 42 (not further reported). [h) Judicature Act, 1873, s. 25, suh- {p) Com. Dig. tit. Chancery {D. 11); sect. 8. Mayor, ). It is well settled that no injunction will be granted against a tenant for life to restrain permissive waste {c) and no such injunction would be granted against a tenant under a landlord. Nor would the specific performance of a covenant to repair be enjoined (rf). It is suggested however that if trees were wrongly cut down by a tenant, a mandatory injunction to plant new ones might possibly be granted. (s) Onslow V. • , 16 Ves. 173. {t) Pratt V. Brett, 2 Madd. 62 ; 17 R. R. 187. (m) Dmry v. Molins, 6 Ves. ^28. {x) Ld. Grey de Wilton v. Saxon, 6 Ves. 106 ; 6 R. 11. 457 ; Kimpton v. Eve, 2 V. & B. 349 ; 13 R. R. 116. (y) Earl Bathurst v. Burden, 2 Bro. C. C. 64. {z) Kimpton v. Eve, 2 V. & B. 349 ; 13 R. R. 116. («) Rolleston v. Neiu, 4 K. & J. 640. {h) Bidder \. Trinidad Petroleum Co., 17 W. R. 53. (c) Poimjs V. Blagrave, 4 De G. M. & G. 448. {d) See Sect. 3 (d), ante. Sect. 6. — Fences and Party-walls. 655 Sect. 6. — Fences and P arty -iv alls. Ch. XVI. s. 6. AVhere there are two adjacent fields, separated by a hedge and Fences and ditch, the ditch prima facie beh^ngs to the owner of the fiekl in which the hedge is ; and if there are two ditches, one on each side .\.!Iricultural of the hedge, then the ownership of the hedge must be ascertained Fences. b}' proving acts of ownership {e). The rule about ditching is this — *' No man making a ditch can cut into his neighbour's soil, but usuall}^ he cuts it to the very extremity of his own land ; he is of course bound to throw the soil which he digs out upon his own land, and, often, if he likes it, he plants a hedge upon the top of it ; there- fore, if he cuts afterwards beyond the edge of the ditcli, which is the ^xtremit}' of his land, he cuts into his neighbour's land, and is a Yoy^i^s v trespasser " (/) : proof, therefore, of the ancient width of the ditch J-^i^^c'". is evidence that the owner's land did not extend beyond the outer edge thereof (/). One tenant in common of a hedge may maintain trespass against his co-tenant if the latter grub it up ; but not for a mere clipping of the hedge {(J). The common use of a wall separating adjoining lands belonging to Owuership of different owners (tbe origin of which wall is unknown), is prima facie '''^ ^'"^ ^* evidence that the wall and the land on which it stands belong to the owners of those adjoining lands, in equal moieties as tenants in common. Where such an ancient wall was pulled down by one of the two tenants in common, with the intention of rebuilding the same, and a new wall was built of greater height than the old one, it was held not to be such a total destruction of the wall as to entitle one of the two tenants in common to maintain an action of trespass against the other (/?). But where a tenant in common of a wall took off the coping-stones and heightened it, and built a washhouse against it, the roof of which occupied the whole width of the top of the wall, and also let a stone into the wall, with an inscription on it stating that the wall and the land on which it stood belonged to him, it was held, that on these facts the jury might find an actual ouster of the co-tenant (i). Where a party-wall was built at the joint expense of the two adjoining proprietors, and half its thickness stood on the land of each, the property in the wall follows the land on which it stands, and the two proprietors are not tenants in common of the wall(A-). In contemplation of lav/ such wall constitutes two (c) Gmj V. West, 2 Selw. N. P. 1244 v. jWDermott, 8 A. & E. 138. {13th ed.) ; Cole Ejec. 242, 243. {i) Stedman v. Smith, 8 E. & B. 1 ; 26 (/) Voivles V. 3imcr, 3 Taimt. 137. L. J., Q. B. 314 ; and see Doe d. JFaicn (g) Voyce v. Voyce, Gow, 201. v. Horn, 3 M. & W. 333 ; 5 Id. 564. (A) CxMtt V. Porter, 8 B. & C. 257 ; {k) Matts v. Hawkins, 5 Taunt. 20 ; 6 L. J., K. B. 306; 32 R. R. 374; 14 R. R. 695 ; Taijlor v. Stendali, 7 Q. B. Wiltshire v. Sidford, Id. 259, n. ; Murlcy 634 ; 3 D. & L. 161. 656 Chap. XVI. — The Preservation of the Premises. Ch. XVI.S.6. Fences and Party-walls. distinct walls, and had to be so described under the old s^'stem of pleading (0. If a house or office be separated from other premises by a wall, and that wall belongs to the owner of the house or office, he is of common right bound to repair it ; and an action will lie against him for nny damages occasioned by his not doing so. Action by Landlord against Tenant. Tenant nir.st preserve Boundaries of Land demised. An action for not rei:)airing fences, whereby another party is damaged, can, in ordinary' cases, only be maintained against the occupier, and not against the owner of the fee, who is not in possession (»i). It is so notoriously the duty of the actual occupier of lands to repair the fences, and so little the duty of the landlord, that without any agreement to that effect, the landlord may maintain an action against his tenant for not so doing, upon the ground of the injury done to his inheritance («). If two persons are possessed of adjoin- ing closes, neither being under any obligation to fence, each must take care that his cattle do not enter the land of the other ; but it may be doubted, if two persons have the concurrent possession of land, for the purpose that each may take profits of a sj^ecial nature, and distinct from, but not inconsistent with, the right of the other, whether either one is bound to guard against casual damage, which, during and by fair enjoyment of his right, may happen to the other (o). A person entitled to the minerals under the land of another, with licence to make a shaft opening into it, is, in the absence of an}' stipulation to the contrary, under a legal obligation to the owner of the surface soil to fence the shaft so as to prevent its being a source of danger to his cattle which may be upon it, and is liable to an action for injury occurring to those cattle for want of such fencing (j;). Where the owner of two adjoining closes (A. and B.) separated by a fence and gate, which had always been repaired by the occupier of B., sold A. to the plaintiff", and two years afterwards sold B. to the defendant ; it was held, that the latter was not bound to repair the gate, unless he or his vendor had made some specific bargain with the plaintiff to that effect ; and that the doing of occasional repairs was not evidence of such bargain {q). A tenant is obliged to preserve the boundaries of the land demised to him, and if he permit them to be destroyed, so that his land- lord's land cannot be distinguished from his own, he must either restore the land specifically, or give other land of equal value in (Z) Murlnj v. M'Dennott, 8 A. & E. 138, 143 ; Cole Ejec. 242. {ill) Chcctliam v. Hampson, 4 T. R. 318 ; 2 R. R. 397 ; Russell v. Shenion, 3 Q. B. 449. See post, Chap. XIX. {n) Chcctliam v. Havipson, 4 T. R. 319 : 2 R. R. 397 ; per Lord Kenyon, C.J. ; and see Whitfield v. Weedon, 2 Chit. R. 685. (o) Churchill v. Evans, 1 Taunt. 529 ; 10 R. R. 600. (}i) In re Williams v. Groucott, 4 B. & S. 149; 32 L. J., Q. B. 239. iq) Boiilc V. Tamlyn, 6 B. & C. 329 ; 5 L. J., k. B. 134 ; 30 R. R. 343. Sect. 6. — Fences and Party-walls. 657 lieu (r) ; and this obligation is not mereh' to leave the boundary Ch. XVI. s. 6. distinct at the end of the term, but to keep it distinct daring the Fences and ,...,..,., . , Farty-walls. term, the court havnig jurisdiction during tlie term to ascertain the boundary if the tenant has confused it (s), and the obligation extends to cases where there are several co-lessees {t). A person has no right to undermine a part^'-wall between his own Undermining house, which he has pulled down, and his neighbour's, unless it can '^ ^^'^ be done without injury to his neighbour's house ; even although it is doubtful whether the interests of the parties in the wall are several or whether they are tenants in common of it(»). To an action of covenant for non-repair of a messuage, the defendant may plead performance, except as to the repairs of a party-wall, and that those were rendered necessaiy and were done under 14 Geo. 3, c. 78, and did not become necessaiy b}' the defendant's default, and that the defendant was not the owner of the improved rent {x). Although a tenant from year to year is not bound to put the ^Vaste and premises into repair, he is not, on the other hand, at liberty to do of Fences. anything which amounts to waste, or to a breach of the rules of good husbandry ; he is not therefore, entitled to cut and sell hedgerows, or, at least, not without making up the hedges and fences according to the course of good husbandry. If there be a quickset fence of white thorn, and the tenant stub it up or sutler it to be destroyed, that is destruction ; but cutting quickset hedges is not waste, but " rather good husbandry, because they will grow the better " (?/). I Sect. 7. — Trees and Timber {z). (a) What is Timber. By the term timber is meant properly' such trees only as are fit to Definition of be used in building and repairing houses ; thus, oak, ash, and elm trees are considered timber in all places, and under whatsoever circumstances they are grown {a). But only trees of not less than six inches in diameter or tvv'o feet girth (allowing for irregularities of shape) appear to be reckoned or considered as ** timber " (b) Many descriptions of trees, which are not generally considered as % ^^^'^ ... . Ill ^1 1 • Custom of the timber, are so in some places by the custom ot the country, being Country. (r) Alt.-Gen. v. F^dlcrton, 2 V. & B. N. S. 164. 26:i ; 13 R. R. 76. {x) Moore v. Clark, 5 Taunt. 90. (6') Spike V. Hardimj, 7 Cli. U. 871 ; {y) Gage v. Smith, Godb. 209. 47 L. J., Ch. 323; 38 L. T. 385; 26 {z) As to the Law of Trees and Woods W. R. 420 ; in this case a reference was generally, see an excellent Treatise by directed to Chambers to ascertain the R. D. Craig, Q.C. (1866, ]\Iaxwell). boundaries. {a) Co. Lit. 53 a ; Craig on Trees and il^ JVillis V. Parkinson, 1 Swanst. 49. AVoods, 11. (w) Bradbee v. Governors of Christ's {h) JVhitty v. Ld. Dillon, 2 F. & F. 67. Eoqyital, 4 M, & G. 714 ; 2 Dowl., L.T. 42 658 Chap. XYI. — The Peeseryation of the Pkemises. Ch. XVI. s. 7. Trees and Timber ( What is Timber). Pollards. there used for the purpose of huikling ; thus it has been laid down that horse-chestnuts, limes, birch, beech, asp, walnut trees, and the like, may under such circumstances be deemed timber, and are therefore protected by the law as such (c). It has been determined that in the county of York birch trees are timber, because they are used in that county for building sheep-houses, cottages, and such mean buildings (d) : and it would seem that in Hampshire willows have been considered as timber by the custom of the country (g). Where beech is admitted to be timber by the custom of the country, the general rule of law applicable to timber trees in general attaches upon it, so as to give it the properties and privileges of timber at twenty years' growth ; and therefore upon an issue whether certain beech trees in the county of Bucks were or were not timber according to the custom of the country, the inquiry is confined to the nature of the wood and the period of its growth, whether of twenty years ; and no evidence can be received to qualify its character of timber by showing that it was not deemed to be such in the county unless the tree contained ten feet of solid wood(/). But beech trees of thirty years' growth might be cut and managed as " saleable underwood," so as to render them liable to poor rates under the Poor Belief Act, 1601, 43 Eliz. c. 2 (g). Although pollards have been said not to be timber (//), 3'et Lord King inclined to think them timber, provided their bodies were sound and good ; and in an action to recover the value of pollards under the description of timber and timberlike trees, the plaintiff recovered a verdict (/). Trees belong to Landlord, Bushes to Tenant. (b) Implied Rights as to Trees. The property in trees is vested in the owner of the inheritance of the land upon which they grow ; for the property in trees, or of that which is likely to become timber, is in the landlord, and the property in bushes in the tenant, even when they are cut down by a stranger (k). If the tree grow near the confines of the land of two parties, so that the roots extend into the soil of each, the property in the tree (c) JJiike of Chandcs v. Talbot, 2 P. Wnis. 606 ; Palmer's case, Co. Lit. 53 a, note (10). {d) Countess of C mnhcrlaiuV s case, Moore, 813. (c) Lay f eld v. CoKjicr, 1 Wood, Ex. R. 330 ; Gniffly v. Pindar, Hob. 219. (/) Aubrey v. Fisher, 10 East, 446 ; Duke of Chandos v. Talbot, 2 P. Wms. 606 ; Co. Lit. 53 ; Craig on Trees and Woods, 11. (a) Lord Fitzhardingc v. Pritchctt, B. '& S. 216; L. R., 2 Q. B. 135; 36 L. J., M. C. 49. The provisions of the Act of Elizabeth, as to saleable under- woods, are repealed by tlie Rating Act, 1874. As to the rateability of plantations under that act, see Chap. XV., Sect. 5, ante. (A) Plowd. 470 ; Craig on Trees and AVoods, 12, 13 ; PhillijJS v. S7nith, 14 M. & W. 589. (i) Eabbett v. Raikes, Suffolk Sum. Ass 1803, cor. Macdonald, C.B. ; Channon v. Patch, 5 B. & C. 893. {k) Berriman v. Peacock, 9 Bing. 384. Sect. 7. — Trees and Tdiber. 659 belongs to the owner of that land in which the tree was first sown or ' ^' '^' planted (/), but formerly the parties in such a case were held to be Timbe'i- tenants in common (z??)- A farmer who raises young fruit trees on [implied ' . . Rights as to). the demised land, for nlhng up the orchards, is not entitled to sell them; but it is otherwise of a nurseryman by trade {11). Therefore a nurser3aiian, who has planted fruit trees in the way of his trade, may remove them, if not of larger growth than could be dealt with in his trade, even though they are producing fruit (o). A tenant, not being a gardener, cannot remove a border of box planted on the demised premises by himself, unless by special agreement with his landlord (]:>). A tenant of a garden may not plough up and destroy the strawberry beds, although he paid the preceding tenant for them {q). Windfalls of sound timber trees belong to the landlord, but wind- Windfalls. falls of trees which are not timber, and of decayed timber trees, belong to the tenant (r). The same rule will apply to trees severed HcrlakendaCs b}^ the act of a trespasser. (c) Express Contracts as to Trees. The effect and construction of exceptions and reservations (in Exceptions a demise) of trees, &c., have been already considered (s). AVoods, timisor'^™" which were excepted out of the lease, but subsequent!}^ granted by Trees, &c. the lessor to the lessee, have been held not to pass by an assignment of the lease {t). A covenant not to remove or grub up trees is broken by removing Construction trees from one part of the premises to another : and so it is by taking °g to^T^ees ^ away trees, even if the lessee plant a greater quantity than he takes '^'^• away, unless those taken away were dead {u). A covenant to keej) all the trees standing in an orchard, whole and undefaced, "reasonable use and wear onl}' excepted," is not broken by cutting down trees Orchard. past bearing, provided the landlord is likely to get back the premises at the end of the term in an improved condition {x) ; but a covenant to leave all the timber which is growing on the land when the lessee (I) Holder v. Coates, Moo. & M. 112 ; And see Channon v. Patch, 5 B. & C. 897. 31 R. E. 224. In that case a lessor during the term cut (m) Waterman v. Sopcr, 1 Ld. Rayni. down some oak pollards which were unfit 737 ; ifastcrsv. Follie, 2 Roll. Rep. 141 ; for timber, and it was held that as a Anon., Id. 255. tenant for life or years would have been (n) Wyndham v. Way, 4 Taunt. 316 ; entitled to them, if they had been blown 13 R. R. 607 ; Penton v. Rohart, 2 East, down, the lessor could not, by wrongful 90 ; 6 R. R. 376. severance, actiuire any right to them. (o) Warden v. Uslier, 3 Scott, N. R. (s) Ante, 190 ; see also Smith L. & T. 508. 133—136 (2nd ed.). [p) Empson v. Sodcn, 4 B. & Adol. [t] Godb. 188. €55. («) Doc d. WcUicrell v. Bird, 6 C. & P. iq) Wctherell v. Howclls, 1 Camp. 227. 195 ; 2 N. & M, 285. (r) Herlalcenden' s case, 4 Coke, 62 ; [x) Doe d. Jones v. Crouch, 2 Camp. Countess of Shrewsbury's case, Moore, 812. 449. 42—2 660 Chap. XVI. — The Presekvation of the Premises. Gh. XVI. s. Trees and Timber {Express Contracts as to). Timber Sap- lings and Undenvood. 7. took it, is broken if, at the end of the term, he cut it down, hut leave it there, for that wouhl be defeating the intent of the covenant, although a literal performance of it. A lease was granted of a farm, and quarries of stone thereon, ^ with liberty to work the quarries ; out of this demise were reserved timber saplings and underwood growing on the premises : there was a covenant not to commit waste by cutting down saplings or under- wood : it was held that the cutting down saplings and underwood for the necessar}' purpose of working a quany on the premises was no breach of the covenant, there being no excess of the right that it was intended the tenant should exercise {z). Where tliere was a liberty in a lease, for the lessee to cut down and dispose of all timber and cojDpice, and also a proviso to give notice in writing to the lessor of his intention, that the latter might have the option of purchasing; and the lessee gave a bona fide notice, and the lessor disclaimed any intention of purchasing ; it was held that the lessee might afterwards proceed to cut down the whole, without giving a fresh notice, at such seasons as suited his convenience, even though the lessor had in the meantime parted with his interest to another (a). For wliat purpose Trees may be cut ■without Waste. What Acts amount to Waste. (d) Waste as to Trees. A tenant who is answerable for waste only, may cut down trees for the purposes of reparation witliout committing Avaste, either where the damage has accrued during the time of his being in possession, in the ordinary course of deca}', or where the premises were ruinous at the time he entered ; but if the decjiy happened by his default, to cut down trees to do the repair would be waste. And if a tenant having cut down trees for reparations, sell them, and afterwards buy them again and employ them about necessar}' reparations, it is waste by the sale (b) : so, although he cut for repairs, if upon turning out unfit they are exchanged for others which are so applied (c). But the tenant may not cut timber for repairs which his lessor has covenanted to do (d). It is not waste for a tenant to cut timber for necessary botes (c). Cutting down, destroying, or topping all trees which are timber either by the general law or by the particular custom of the country, is waste ; so is the doing of any act which has the effect of causing a decay of the wood ; and cutting down willows, beech, birch, ash, maple, or any trees of that description, which, though not timber, alibrd a defence or shelter for the house, has been considered destruc- (s) Doe d. Eogcrs v. Price, 8 C. B. 894. («) Goodtitlc d. Luxmore v. HaviUc, 16 East, 87 ; 14 R. R. 305. (b) Co. Lit. 53, 220. (c) Sivimons v. Norton, 7 Bing. C40. {d) Com. Dig. Pleader (3 0.), 14. {e) Com. Dig. Pleader (3 M.), 12; Co. Lit. 53 ; Hob. 234 ; Fitz. N. B. 59 (N.) ; Archdeacon v. Jcnncr, Cro. Eliz. 604. Sect. 7. — Trees and Timber. 661 tion. Upon the same principle, cutting clown or destroying fruit- Cn. XVI. s. 7. trees growing in the garden or orchard is waste : but if such trees Trees and . Timber grow upon any of the ground which the tenant holds out of the {Express garden or orchard, it is not waste ( /') : and it has been laid down, f-ontracts o ' ^ ■' ' ' as to). that suffering the germins, or young shoots springing from trees which have been felled, to be destroyed, is waste (g) ; and that if it Trees." be done after previous waste in felling the trees, is double waste {h). Cutting down willows and leaving the shoots to shoot afresh, has been held not to be waste, unless they are a shelter to the house or a support to the bank of a stream (0- In most places tenants may- cut all trees, whether timber or underwood, which have, under the denomination of seasonable wood or sylva csedua, been cut within twenty years, without being guilty of waste (/t). The cutting of hornbeams, hazels, Avillows, sallows, though of forty years' growth, is not waste, because they will never become timber (/). In some counties, especially in Kent, they are in the habit of cutting down wood as underwood, at twenty-six, twent^'-eight, or thirty years, and which, if allowed to grow, would become valuable timber. Waste can only be committed of the thing demised, and therefore No^yaste by if trees be excepted out of a demise, waste cannot be committed by Excepted cutting them down ; and ejectment cannot be maintained as for waste Trees. thereby committed in or upon the demised premises (/«). Sect. 8. — Fixtures (n). (a) Generally. The word "fixtures" is used by different writers to express Meaning of different meanings, but it is always applied to articles of a personal uature which have been affixed to land (o). It is a modern word, and is not to be found in the Termes de la Ley (j^)- ^^^ i^s most extensive sense it means anything annexed to the freehold in such a manner as to become parcel of it. But as between landlord and tenant it has generally a more confined meaning (g), and may {/) Co. Lit. 53 a ; Id. note (6). also as between other persons, is most ably Ig) 2 Roll. Abr. 825 ; Gage v. Smith, treated of in Amos & Ferard on Fixtures Godb. 210. (3rd ed., a.d. 1883). See also Brown on (h) Fitz. N. B. 59. Fixtures (3rd ed., A.D. 1875), Herbert on (i) FhiUips V. Smith, 14 M. & W. 589. the Law of Fixtures and Repairs as between ik) Godb. 4 ; 2 Roll. Abr. 815. Landlord and Tenant (a.d. 1898) ; and the (l) Godb. 4, pi. 6. notes to Ehces v. Maicr. (3 East, 38 ; G R. R. (hi) Goodright d. Peters v. Vivian, 8 523) iu 2 Sm. L. C. East, 190 ; see also Doe d. Rogers v. Price, (o) Amos & F. 1 ; Co. Lit. 53 a. 8 C. B. 894, in which it was held;uf>on (p) Wiltshire v. Coit.reU, 1 E.^ & __B. the construction of a lease of a farm with 674 : Sheen v. Fdckic, 5 M. & W. 175 ; (luan-ics, trees being excepted, and the Elliott v. Bishop, 10 Exch. 507. lessee covenanting not to commit waste by (q) llallcn v. Riindcr, 1 C, M. &; R. cutting them down, that the lessee might 266 ; Elliott v. Bishop, 10 Exch. 508 ; cut down reasonably for i|uarrying. Ec parte Barclay, 5 De Gex, M. & G. (n) The law of fixtures generally, not 403 ; 25 L. J., Bkt. 1. only as between landlord and tenant, but 662 Chap. XYI. — The Preservation of the Premises. Ch. XVI. s. 8. Fixtures {General Defi- nition of). "Tenant's Fixtures. " "Landlord's Fixtures." Examples. Barns, &c. Ban be divided into — 1. Tenant'.s fixtures ; 2. Landlord's fixtures. " Tenant's fixtures " are personal chattels annexed to the freehold by the tenant during the term, either for the i^urposes of his trade (p. 667) » or for mere ornament and convenience (p. 669), and which he has a right to sever and remove during the term, in the absence of any- express stipulation (s. 8 (6), or local custom to the contrarj-. "Land- lord's fixtures " are those put up by the landlord before or during the term or by any previous owner or tenant, or by any other person. The terra also includes such fixtures put up by the tenant during the term as the tenant has no right to remove. All these constitute part of the freehold, and also part of the premises demised. In a more confined sense "landlord's fixtures" mean those fixtures which are on the premises at the time of the lease, and are demised therewith, and are usually specified in a schedule to the lease or agreement, to which may be added such erections and fixtures subsequently added b}- the tenant which he is not entitled to remove during the term. Sometimes machinery and other articles, and even buildings, may be so erected as not to be let into the soil, or annexed to it or to an}" building in such a manner as to become part of the freehold, or to lose their chattel character. Barns, granaries, sheds, or mills erected upon blocks, rollers, pattens, pillars, or plates, resting on brickwork, but not affixed to the freehold by being let into it, or united to it by mortar, nails, or otherwise, are not considered as fixtures, but only as chattels, and may be removed by a tenant during his term, notwithstanding they have sunk into the ground by their own weight (?•). But a wooden windmill resting b}' its weight on a brick foundation does not constitute part of the free- hold (s). So a wooden barn erected by a tenant on a foundation of brick and stone let into the ground, but the barn resting upon it by weight alone, is a mere chattel removable by the tenant on the expiration of his term, and for which he maj^ afterwards maintain trover {t). So sheds or buildings called Dutch hams, having a foundation of brickwork in the ground, and uprights fixed in and rising from the brickwork, and supporting the roof which was com- posed of tiles, and the sides open, have been held removable («), and so has a varnish house having a brick foundation let into the ground, and a chimney belonging to it, upon which a superstructure of wood used as a varnish manufactory, but merely placed upon a wooden plate laid upon the brick foundation {x), and a wooden (r) Huntley v. Russell, 13 Q. B. 572. (s) Rex V. Otlcy, 1 B. & Ad. 161. {t) WoMsbrough v. Maton, 4 A. & E. 884. (?t) Dean V. Allallcij, 3 Esp. 11 ; cited in EhcKS v. Ilaice, 3 East. 47 ; 6 R. K. 523. (.r) Penton v. Rohart, 4 Esp. 33 ; 2 East, 88 : Amos & F. 50 ; 6 R. R. 376. Sect. 8. — Fixtures (General Definition of). 663 stable standing upon blocks and rollers, or a shed standing upon Ch. XVI. s, 8. brickwork let into the ground (i/). Stills set in brickwork have been Fixtures considered as fixed to the freehold, though vats supported by and nition of). ' resting on brickwork and timber, but not fixed in the ground, were Examples— not (-?). Iron salt-pans fixed with mortar to a brick floor, with '^°^^^^- furnaces under them, may be removed b}' the lessees of salt ^*^^^^- springs (a) ; but where a lessee of salt springs was to pay rent ^ -V^^^- according to the number of pans, and he covenanted to deliver up all ivorks erected or to be erected at the end of the term ; it was held that he could not remove iron salt-pans though merely resting on brickwork, and having iron rings in their sides, by which they were occasionally lifted up to be repaired {h). Where certain jibs, being parts of a machine, had been put \\\) by the tenant during his term, and were capable of being removed without either injuring the other parts of the machine or the building, and had been usually valued between the outgoing and incoming tenant ; it was held that these were the goods and chattels of the outgoing tenant, for which he might maintain trover (c). In all cases of this description, what- ever may be the magnitude, or however substantial the nature of the erection, still if it is so constructed as not to be actually fastened to or let into the freehold, the tenant may always remove it, because the law considers it as a mere loose and moveable chattel {d). But a conservatory erected on a brick foundation, Conservatory. affixed to and communicating w^th rooms in a dwelling-house by windows and doors, cannot be removed by a tenant for years who erected it during his tenancy {e). So a veranda, the lower part of which is attached to posts fixed in the ground, cannot be removed (/). Nor greenhouses built in a garden, and constructed of wooden frames fixed with mortar to foundation walls of brickwork {g). Nor a boiler built into the masonry of a greenhouse ; but it is otherwise with respect to the pipes of a heating apparatus connected with the boiler by screws {g). Gasaliers fixed to gas pipes cannot be removed; or, at all events, will pass by an assignment of the lease with all fixtures, &c. {h). It has been decided that an outgoing tenant has {y) Fitzlurhertv. SJmw, 1 H. Blac. 258. {d) Hellaivell y. Eastwood, 6 Exch. 312 ; In Martin v. Roc, 7 E. & B. 237, a rector Huntley v. Russell, 13 Q. B. 572 ; JFood was held entitled to remove hothouses v. Hcwett, 8 Q. B. 913 ; JFaiisbrough v. withoutincm-ringliabilit^'iordilapidations. Maton, 4 A. & E. 884; Martin v. A';c, (z) Horn v. Baker, 9 East, 215 ; 9 R. R. 7 E. & B. 237 ; Parsonsv. Hind, 14 W. R. 541 ; but see TrapiKS v. Harter, 2 C. & M. 860. 153 ; cited 6 Exch. 313. (c) Buckland v. Butlcrfield, 2 Brod. & («)Z«?<;toiv. &/i)Ho/i, 1 H. Blac. 259, n.; B. 54; 22 R. R. 649; and see West v. 2 R. K. 764. Blakeway, 2 M. & G. 729 ; 9 Dowl. 846. {h) Earl of Mansfield v. Blackburn, 6 ( f) Fcnry v. Brown, 2 Stark., 403 ; 20 Bing. N. C. 426. R. R. 705. (c) Davis V. Jones, 2 B. & A. 165 ; 20 (g) Jenkins v. Gething, 2 Johns, k H. R. R. 396 ; Sunderland v. Newton, 3 Sim. 520. 450 ; 30 R. R. 186. (/i) Sewellv. Angerstcin, 18 L. T. 300, 664 Chap. XVI. — The Preservation of the Premises. Ch. XVI. s. s. Fixhiyes {General Defi- nition of ). Examples — coiitd. ■"Mules." Jlellawdl V. Eastwood. no right to remove pillars of brick and mortar huilt on a dairy floor to hold pans, although such pillars are not let into the ground (/). It is necessary, in order to constitute a fixture, that the article in question should be let into or united to the land, or to some substance previously connected with the land. It is not enough that it has been laid upon the land, and brought into contact \i'\i\\ it; something more than mere juxtaposition is required; as, that the soil shall have been displaced for the purpose of receiving the article, or that the chattel should be cemented, or otherwise fastened to some fabric previously attached to the ground {k). The screwing of a stocking-frame to the floor to keep it steady will not make it a fixture (Z). Cotton spinning machines called "mules," some of which were fixed b}' screws to the w^ooden floor, and some by screws which had been sunk into holes in the stone flooring, and secured by molten lead, merely to steady them for more convenient use as machines, continue to be chattels, and as such are distrainable for rent {m). Whether a machine or any other article has been so fixed and attached to the freehold as to become parcel of it, is a question of fact depending on the circumstances of each case, and principally on two circumstances : first, the mode of annexation to the soil or fabric of the house, and the extent to which it is united to them, whether it can easily be removed integre, salve et commode, or not, without injury to itself or the fabric of the building ; secondl}', on the object and purpose of the annexation, whether it was for the permanent and substantial improvement of the dwelling, in the language of the Civil Law, perpetui usus causa, or in that of the Year Book, per un profit del inheritance («), or merel}- for a temporary puri)ose, or the more comi^lete enjoyment and use of it as a chattel (o). If machines be attached slightly, b}^ screws or otherwise, so as to be capable of removal without the least injury to the fabric of the building or to themselves, and the object and purpose of the annexation was, not to improve the inheritance, but merely to render the machines steadier and more capable of con- venient use as chattels, the}- do not become "fixtures" or part of the freehold, any more than a carj)et Avould be which is attached to the floor by nails for the purpose of keeping it stretched out, or curtains, looking-glasses, pictures and other matters of an orna- mental nature, which have been slightly attached to the walls of the dwelling-house as furniture, and which is probably the reason wh\' (i) Lcac7i V. Thomas, 7 C. & P. 327 ; ■and see Jenkins v. Gething, 2 Joliiis. & H. 520. . {]{) Wanshrough v. Malon, 4 A. & E. S84 ; Himtlcyx. RvsscU, 13 Q. B. 572. (I) Trapiics v. Harfr.r 2 Cr. & M. 177 ; cited 6 Exch. 313. {m) HellaiLcll v. Eastwood, 6 Exch. 295, 312. ill) 20 Hen. 7, c. 13. (o) Hcllaicdl V. Eastwood, 6 Exch. 295. I Sect. 8. — Fixtures (General Definition of). 665 they and similar articles have been held in different cases to be Ch. XVI. s. 8. removable (p). Machines so attached would pass to the executor , Fixtures ■ r> 1 ^ 1 1 1 \ {General Befi- as chattels rather than to tlie heir as part oi the freehold (g). nitionof). Fixtures which a tenant may sever from the freehold and take away during his term are not distrainable for rent (;•) : but machines which have not been sufficiently annexed to constitute them part of the freehold are considered as mere goods and chattels, and may be so distrained (s). Questions respecting the right to what are ordinarily'- called Between _ . . „ . , , ^T 1 p what Classes jixturcs, principally arise between three classes oi persons : — ^f pt-vsons 1st. Between different descriptions of representatives of the same '.Hiestionsas t . , . , to bixtures owner of the inheritance : viz., between his heir and executor. In arise. the first case, i.e. as between heir and executor, the rule obtains with the most rigour in favour of the inheritance, and against the right to disannex therefrom, and to consider as a personal chattel any- thing which has been aftixed thereto. '2ndly. Between the executors of tenant for life or in tail, and the remainderman or reversioner, in which case the right to fixtures is considered more favourably for executors than in the preceding case between heir and executor. The third case, and that in which the greatest latitude and in- dulgence has always been allowed in favour of the claim to have any particular articles considered as personal chattels as against the claim in respect of freehold or inheritance, is the case between land- lord and tenant (t). Hence it may be received as a rule, that the decisions in favour of the executors of tenants for life, in tail, or in fee, as against the remainderman, reversioner, or heir, may in general be applied to cases between landlord and tenant, and are to be considered as governing authorities in support of a tenant's rights (u). But of course the converse does not hold. The general rule of law respecting fixtures is, that whatever is fixed General to the freehold becomes part of it, and is subjected to the same rights pj" f^j^es ° of proj)erty as the land itself; the maxim being Quicquid solo plan- tatur, solo cedit{x). But the presumption that that which is annexed to the soil becomes part of the soil, may be rebutted by circum- stances showing the intention of the parties to the contrary (y). Thus, where a chattel has been annexed by its owner to another's freehold, and may without injury be severed, it is not necessarily to be inferred from the annexation that such chattel becomes the (p) Id.- (u) Amos & F. 50. (ry) Trcqjpcs v. Hartcr, 3 Cr. & M. 177 ; {x) Minshall v. Lloyd, 2 M. & W. 459 ; cited 6 Exch. 313. Ulliott v. Bishop, 10 Exch. 507, Martin, B. ; (r) Dalton v. Whittcm, 3 Q. B. 961; Lancaster v. Eve, 5 C. B., N. S. 717, 720 ; JDarby v. Harris, 1 Q. B. 895. 28 L. J., C. P. 235 ; Climie v. Wood, {.s) Hellaifcllx. Eastwood. Q E^ich. 295. L. R., 3 Ex. 257, 260; 4 Id. 328; 37 (0 Per cur. in Elwes v. Mavc, 3 East, L. J., Ex. 158 ; 38 Id. 223. 51 ; 2 Smith, L. C. ; 6 R. R. 523. {y) Lancaster v. Eve, supra. 666 Chap. XVI. — The Peeservation of the Premises. Ch. XVI. S.8. Fixtures {General Defi- nition of). General Rule as to Annexations by a Tenant. Ehves V. Maice. Exceptions to General Rule. property of the freeholder. Whether in a particular case it has become so or not, may be a question on the evidence : and the jury may infer, from user or other circumstances, an agreement, when the chattel was annexed, that the original owner should have liberty to take it away again at any time, and to use it in the meantime for the purposes of an easement {z). When the owner of the inheritance annexes thereto fixtures (which would in the ordinary case of land- lord and tenant be removable by the latter during his term), for a permanent purpose, and for the better enjoyment of his estate, they become part of the freehold (a). The principle upon which the rule of law, that fixtures pass with the soil, is relaxed in favour of trade, has no application where the parties who affix the machinery are themselves owners in fee of the soil {h). Nor where a conveyance or mortgage in fee is made of the building or land, to which trade or other fixtures are then or subsequenth' annexed (c). Even an assign- ment of a lease, with all fixtures, &c., will pass fixtures which the tenant might remove during the term {d). The general rule of law, Avith respect to annexations made by a tenant during the continuance of his term, has been established from a ver}' remote period (c). It is, that whenever the tenant has affixed anything to the demised premises during his term, he can never again sever it, Avithout the consent of his landlord. The property, by being annexed to the land, immediately belongs to the freeholder; the tenant, by making it part of the freehold, is considered to abandon all future right to it, so that it would be waste in him to remove it afterwards. It therefore falls in with his term, and comes to the reversioner as part of the land. This is the rule recognized in the leading case of Elites v. Mawe (/), in which case the tenancy was agricultural, and tlie tenant removed the fixtures which he had erected at his own expense, without doing damage to the freehold. But to this rule there are important exceptions with respect to fixtures erected by the tenant, (1) for mere ornament and convenience during his term (p. 669), (2) for the purposes of his trade (p. 667), and (3) b}' statute, under particular restrictions, for agricultural purposes {fj). Whether the tenancy be for life, or for years, or from {z) Wood V. Hewdt, 8 Q. B. 913 ; Lancaster \. Eve, 5 C. B., N. S. 717 ; 28 L. J.,C. P. 235. (a) Walmsley v. Milne, 7 C. B., jST. S, 115 ; 29 L. J., C. P. 97 ; Fisher v. Dixon, 12 CI. & F. 312. {b) Mather v. Eraser, 2 K. k J. 536. (c) Cullwick V. Swindell, L. R., 3 Eq. 249 ; 36 L. J., Ch. 173 ; Climic v. Wood, L. R., 3 Ex. 257 ; 37 L. J., Ex. 158; affirmed L. R., 4 Ex. 328 ; 38 L. J., Ex. 223 ; 20 L. T. 1012 ; llalexj v. Hamvurslcij, 3 Dc Gex, F. & J. 587 ; 30 L. J., Ch. 771. {d) Sewell v. Angcrstcin, 18 L. T. 300. (e) See Year Book, 17 E. 2, p. 518 ; Hcrlakendens rase, 4 Co. 64. (/) Eltccs V. Maive, 3 East, 51 ; 2 Smith, L. C. ; 6 R. W. 523. ((/) Landlord and Tenant Act, 1851, 14 '& 15 Vict. c. 25, s. 3 ; Agricultural Holdings Act, 1883, 46 & 47 Vict. c. 61, s. 34, p. 671. Sect. 8. — Fixtuees (General Definition of). 667 year to year, or only at will, makes no difference with respect to his Ch. XVI. s. 8. right to remove fixtures, nor whether he holds under a lease by parol, /^^-J^^^'zi/?- or by writing, or under seal (except as to any stipulations on the nitionof). subject therein contained). It is, however, to be observed, that every case, in which there is a right of severing a thing from the freehold by virtue of the law of fixtures, is considered as an exception to the general rule (h). Fixtures which may be removed by the tenant during his term constitute part of the freehold until severed therefrom (0- Until so severed they are not goods or chattels for which trover may be maintained {k). But sometimes a special action may be maintained for preventing- a tenant or any person claiming under him from exercising his right to sever and remove the fixtures (l). The exceptions to the general rule as to fixtures will be considered fully under the following heads, viz. : — 1. Fixtures for purposes of trade. 2. Fixtures for agricultural purposes. 3. Fixtures for ornament and convenience. (b) Fixtun'sfo)- Purposes of Trade. It is difficult to state the precise extent of the exception in favour Exception in of the removal of fixtures put up for the purposes of trade, so as to r^^g^^^^ afford a safe guide as between landlord and tenant. "The old Penfonv. cases upon this subject," it is said in Penton v. Ilohart, "leant to Iio^(^'>'f" consider as realty whatever was annexed to the freehold by the occupier ; but in modern times the leaning has always been the other way, in favour of the tenant, in support of the interests of trade, which is become the pillar of the state. AVhat tenant will lay out his money in costly improvements of the land, if he must leave every- thing behind him which can be said to be annexed to it ? Shall it be said that the great gardeners and nurserymen in the neighbour- hood of the metropolis, who expend thousands of pounds in the erection of greenhouses, hothouses, &c., are obliged to leave all these things upon the premises, when it is notorious that they are even permitted to remove trees, or such as are likely to become such, by the thousands, in the necessary course of their trade ? If it Avere otherwise, the very object of their holding would be defeated" {m). The reason which induced the courts to relax the strictness of the old rules of law, and to admit an innovation in this particular instance, {h) Buckland v. Buttcrficld, 2 ]5rod. & 3 M. & W. 184 ; lioffcij v. Henderson, 17 B. 54 ; 22 K. R. 649. Q. B. 574 ; Wilde v. Waters, 16 C. B. 637. {i) Lee v. Risdon, 7 Taunt. 188; 17 (') London and Westminster Loan and R. R. 484 : Ex parte Lloyd, 1 Mont. & Discount Co. {Limited) v. Brake, 6 C. B., Ayr. 508. N. S. 798, 811 ; 28 L. J., C. F. 297. {k) Green v. Cole, 2 AVms. Saund. 259, c, (wi) Fcnton v. Eobart, 2 East, 88 ; 6 note (r) (6th ed.) ; Mackintosh v. Trotter, R. R. 376. 668 Chap. XVI. — The Preservation of the Premises. Ch.XVI. s. 8. Fixtures [for Purposes of Trade). Decisions as to Trade Fixtures. was, that the commercial mterests of the countiy might be advanced, by the encouragement given to tenants to employ their capital in making improvements for carrying on trade, with the certainty of having the benefit of their expenditure secured them at the end of their terms : the benefit of the public may be regarded as the principal object of the law in bestowing this indulgence (;0- Whenever the following circumstances concur (and sometimes when they do not ail concur) the tenant may remove the article : viz., things which a tenant has fixed to the freehold for the purposes of trade or manufacture may be taken away by him during his term, whenever the removal is not contrary to any express or implied stipulation in his lease or agree- ment (sub-s. (e)), or the custom of the country (o), and the articles were of a perfect chattel nature before they were put up, or have in substance that character independently of their union with the soil, and may be removed without material injury to the freehold, and without losing their essential character or value d^). Thus if a lessee for years set up a furnace for his advantage, or a dyer make his vats and vessels to occupy his occupation {^' j^our occvpier son occupatio7i ") during the term, he may remove them : and so of a baker (g). So a soa2)-boiler, who for the convenience of his trade puts up vats, coppers, tables and partitions, may remove them during his term: or the}' may be taken under an execution against him (r). So a fire-engine or steam-engine set up b}' a tenant for the purpose of working a colliery ma}' be removed by him during the term (s). Salt-pans erected by a tenant for the purpose of working salt-works let to him may be removed during the term (although it would be otherwise as between the heir and executor of a tenant in fee (t)), unless there be an express covenant to leave the salt-works in good repair at the end of the term (»). " Coppers and all sorts of brewing vessels cannot possibly be used without being as much fixed as fire- engines ; and in brew-houses especially, pipes must be laid through the walls and supported by the walls ; and yet, notwithstanding this, as they are laid for the convenience of trade, landlords will not be allowed to retain them "(x) ; or rather, it should be said, the tenants may remove them during their tenancy. Though a building maybe raised on a brick foundation, and have a brick chimney, yet if the erection on such foundation is of wood, and the building used for the purpose of trade or manufacture, the tenant may remove it ■ {n) Lmvton v. Laicton, 3 Alk. 14, 16. (o) Culling v. Tuffnall, Bull. N. P. 34 ; Wcthcrcll V. Howells, 1 Camp. 227 ; Davis V. Jones, 2 B. & A. 165 ; 20 K. K. 396 ; Amos & F. 44. (,!}) Fisher v. Dixon, 12 CI. & Fin. 312. (q) Year Book, 20 Hen. 7, pi. 13. (?•) Foolcs case, 1 Salk. 368. (s) Laivton v. Lciwton, 3 Atk. 13 ; Ld. Dudlei/ V. Ld. JVarde, Ambler, 114. (t) LawtoiiY. Salmon,! U. Blac. 259,n. ; 3 Atk. 16, S. C. ; 2 R. R. 764. (h) Farl of Mansfield v. Blackburn, 6 Bing. N. C. 426. (x) Per Ld. Hardwicke, C, in Laidon V. Laicton, 3 Atk. 15. Sect. 8. — Fixtures (for Purposes of Trade). 669 before or at the end of his term (^). A steam-engine, to which Ch. XVI. s. 8. a chimney necessarily belonged, has been held to be removable (z). Fixtures {for -___•; . . Purposes of The principle in favom" of buildings erected for the pm"poses of Trade). trade has been extended to many buildings which come by no means Extension of strictly under the term : thus in the famous case of the cider-mill, E-emo^'iibility although the mill was put up in part for the enjoyment of the real Fixtures. estate, yet as the making of cider was a species of trade, the mill was considered to fall within the general exception in favour of trade fixtures ((() ; but that case has been disapproved of by the House of Lords, and is not to be relied on {h). In the case of fire-engines and steam-engines in collieries, it was held that the getting and vending the coals so far partook of the nature of a trade, that the engines employed in the collieries might be deemed trading erections (c). The distinction is between haildings of a permanent nature and machinery and fixtures erected for the purposes of trade, the latter being removable, but the former not {d). It seems that the Landlord and Tenant Act, 1851, 14 & 15 Vict. c. 25, s. 3 (p. 672), does not extend to buildings erected only for the purposes of trade. (c) Fixtures for Ornament and Convenience. Articles put up for ornament and convenience during the term What Erec- have been long allowed to be taken away by the tenant at the Ornament or expiration of his lease. They are considered rather as articles of Convenience. . . . . . ^'ly ^^ fixed furniture, or of utility and domestic convenience, than as removed. parts of the house or freehold (c) ; unless, indeed, the tenant leaves them annexed to the premises after the expiration of his term (/). Instances are to be found as far back as the Year Books irj) : but the relaxation of the general rule in these instances is an indulgence, which is an exception only, and, though to be fnirly considered, is not to be extended {h). It is a .privilege of a more limited nature than that in respect of trade fixtures (i), although such distinction does not appear to have been taken in many of the early cases (A:). The principle upon which this exception to the general rule is founded appears to be that, as annexations of this nature must be ()/) Pcnton V. Rohart, 2 East, 88 ; 4 Esp. 474 ; Foley v. Addcnhrookc, 13 il. & AV. 33 ; 6 R. R. 376. 174. [z] Ld. Dudley v. Ld. IFarde, Ambler, (e) Birch v. Dawson, 2 A. & E. 37. 114 ; Bull. N. P. 34. (/) Lyde v. Riissell, 1 \^. k Ad. 394. (a) Laicton v. Lairton, 3 Atk. 14. (g) 8 Hen. 7, 1-2 ; 21 Hen. 7, 26 ; Day [h] Fisher v. Dixon, 12 CI. & Fin. 312 ; v. Austin, Owen, 70 ; Cro. Eliz. 374. Walmsleyx. Milne, 7 C. B., N. S. 115; (h) Per Dallas, C.J., in Bu-Uand v. 29 L. J., 0. P. 97. BuUerfield, 2 Brod. & B. 54; 22 R. R. (c) Lawton v. Lavton, 3 Atk. 14 ; Ld. 64», Dualcy V. Ld. Warde, Ambl. 114; Bull. (i) Buckland v. Butterfield, supra; N. P. 34 ; MinshuU v. Lloyd, 2 M. & W. Leach v. Thomas, 7 C. & P. 327. 450. (k) Beck v. Rebou:, 1 P. Wnis. 94 ; {d) Whitthead v. Bennett, 27 L. J., Ch. Squier v. Mayer, 2 Freem. 249. 670 Chap. XVI. — The Preservation of the Premises. Ch. XVI. s. 8. Fixtures {for Ornament and Convenience). Conservatory. Window- sashes. Pump. Summary of what may be removed. generally designed for temporary purposes only, it would greatly incommode tenants in the enjoyment of their estates, if by every slight attachment to the freehold the property should be immediately changed, and pass over to the reversioner (^). Fixtures for orna- ment or convenience cannot be removed where the erection may be deemed a permanent improvement, and cannot be conveniently detached and removed without material injury or damage to the house or freehold ; thus a conservatory erected on a brick foundation, affixed to, and communicating with rooms in, a dwelling-house, by windows and doors, may not be removed by a tenant for years, who has erected it during his tenancy : although he has a reversion in fee after the death of his lessor {in). So a veranda, the lower part of which is attached to posts fixed in the ground, may not be removed {n). AVindow-sashes, which are neither hung nor beaded into the frames, but merely fastened b}^ laths, nailed across the frames to prevent their falling out, are not fixed to the freehold (o) : so a pump erected by a tenant during his term, and very slightly affixed to the freehold, is removable as a tenant's fixture (jj). Erections of the description above mentioned also cannot be removed, if the removal would be of such a nature as to constitute waste, or if the premises could not be left in the same state as before the removal ; at least the contrary of this was assigned by Lord Mansfield as a ground for removal, although the principle has not been adverted to in more modern decisions {q). The articles for ornament and convenience, which have been held to be removable, are : — hangings, tapestry and pier glasses, whether nailed to the walls or panels, or put up in lieu of panels (r) ; cornices (s) ; marble or other ornamented chimney-pieces {t) ; marble slabs {it) ; window blinds {x) ; wainscot fixed to the walls by screws {y) ; grates, ranges and stoves, although fixed in brick- work {z) ; iron backs to chimneys {a) ; beds fastened to the walls or (?) Amos k F. (2nd cd.) 83 ; (3rded.) 116. (wi) BucJcland v. Buttcrfidd, s\\\M-a, ; West v. Blakeway, 2 M. & G. 729 ; 9 Dowl. 846. {n) Penry v. Broim, 2 Stark. 403 ; 20 R. R. 705. Upon the same principle it has been held that ranges, ovens and set pots, affixed to a house built by the person against whom an execution has issued, cannot be taken by the sheriff under a writ of fi. fa. : Wynne v. Inglcby, 5 B. & A. 625 ; 24 R. R. 503. (o) Rex v. Hedges, 1 Leach, C. C. 201 ; 2 East, r. C. 590, n. ( ]]) Grymes v. Boweren, 6 Ring. 437. Iq) Latoion v. Salmon,! H. Blac.259, n. ; 3 Atk. 16, n. ; 2 R. R. 764. (r) Squier v. Mayer, 2 Freem. 249 ; 2 Eq. Cas. Abr. 430 ; Beck v. licboiu, 1 P. Wnis. 94 ; Buckland v. Buttcrfield, 2 Bred. & B. 54 ; 22 R. R. 649. (s) Avery v. Cheslyn, 3 A. & E. 75. [t) Latclony. Laivton, 3 Atk. 15 ; Allen V. Allen, Moseley, 113 ; Leaeh v. Thomas, 7 C. & P. 327 ; Bishop v. Elliott (in error), 11 Exch. 115, 120-122. {u) Allen V. Allen, Moseley, 112. (x) Amos& F. llu, 326, 371. {y) Lawton v. Laicton, 3 Atk. 15 ; Ex ■parte Quinccy, 1 Atk. 477 ; Ld, Dudley v. Ld. Wardc, Ambler, 113 ; Lee v. llisdon, 7 Taunt. 191. (s) Lee V, liisdon, 7 Taunt. 191 ; Bex v. St. Diinstan, 4 B. & C, 686. {a) Harvey v. Harvey, 2 Stra. 1141 ; Amos & F. 74. Sect. 8. — Fixtuees (for Ornament and Convenience). 671 ceiling (h) ; fixed tables (c) ; furnaces and coppers (d) ; pumps {e) ; Ch. XVI. s. 8. mash-tubs and fixed water-tubs (/) ; coffee and malt-mills (q) ; cup- Fixtures {for . ^ Ornament and boards fixed with hold-fasts Qi) ; book-cases standnig on brackets Convenience). and screwed to the walls (0 ; clock cases (A) ; iron ovens and the like (/). It must, however, be remarked, that things can be removed only Fixtures are wdien the separation will occasion but little or no damage to the only where freehold or to the articles removed (/»)• The question whether a no Damage , . , . . 1 to Freehold. fixture can be removed b}^ a tenant without substantial injury to the premises is a question of fact, upon an issue whether the fixture is removable or not by law. A plea to an action by a landlord against his tenant for removing a cornice, stated that it was the property of the defendant ; that it was fixed up by him with screws only, for the purpose of ornament ; that he carefully removed it during the term, doing no unnecessary damage ; and that he repaired all the damage done. The replication stated that it was affixed to the freehold of the house and was not removable by law. Issue on that question : — held that it was not a misdirection to leave it to the jury to sa}^ whether they were of opinion that the cornice was ornamental, and was so affixed to the freehold that it could be removed without substantial injury ; and that if they thought so, and that it had been so removed, the tenant had a right to remove it. The question whether removable by law or not is a mixed question of law and fact {n). If the damages caused by the removal would be insignificant, they would not prevent the removal. It appears, however, to have been generally understood in practice that where ornamental or other fixtures are taken down, the tenant is liable to repair the injury the premises may suffer by the act of removal ; and, in like manner, that where a fixture has been put up in substitution for an article which was attached to the premises at the time of the demise, the tenant, in taking down his own fixture, is bound to restore the former article, or to replace it by another erection of a similar description (o). (d) Fixtures for Agricultural Purposes. At common law there never was any right on the part of the No riglit of tenant to remove fixtures erected by him for merely agricultural Common Law {h) Ex parte Qrdncey, 1 Atk. 477. {k) Amos & F. 247, citing Burn's Eccle- (c) Amos & F. 246. siastical Law, vol. iv., p. 411, 9th ed. [d) Squier v. Ifmjcr, 2 Freem. 249. (l) Wynne v. Imjlchy, 5 B. k A. 625 ; (c) Grymes v. Bowercn, 6 Bing. 437 ; 8 24 R. R. 503. L. J..C. P. 140;31R. R.460;4M. &P.'143. (m) Avery y. Cheslyn, 3 A. & E. 75 ; (/) Amos & F. 61, 105. Leach v. Thomas', 7 C. & P. 327. (f/) R. V. Londonthorpc, 6 T. R. 379. (?i) Avery v. Cheshjn, 3 A. & E. 75. (h) Rcd: v. ^S";!. Buvstan, 4 B. & C. 686. (o) Martyr v. Bradley, 9 Bing. 24 ; (i) Birch v. Daicson, 2 A. & E. 37 ; 6 Sunderland v. Newton, 3 Sim. 450 ; 30 C. k P. 658. R. R. 186. 672 Chap. XVI. — The Preservation of the Premises. Ch. XVI. s. 8. Fixtures [AgrieulturaVj . Elwes V. Mawc. No right of removal at common law. Eemoval under Land- lord and Tenant Act, 1851. Agricultural Holdings Acts. Tenant's Right to Fixtures nnder Agricultural Act, 1875. purposes. So it was laid down in 1803 in the leading case of Elwes V. Mawe{p), in which it was held that a tenant, who had erected at his own expense, and for the more convenient occupation of his farm, a heast-house, carpenter's-shop, fuel-house, cart-house, and fold-yard, all built of brick, tiled, and let into the ground, was liable to an action for waste for (during his term) removing the same, even although he left the premises in the same state as when he entered. The court was of opinion that the extension to agriculture of the established privilege in favour of trade would be an innovation, and contrary to the current of legal authorities on the subject. This unjust rule was first sought to be remedied by the Landlord and Tenant Act, 1851, 14 & 15 Vict. c. 25, s. 3 {q), which enact- ment is confined to buildings, engines, and machiner^^ erected or put up by the tenant at his own cost either for agricultural purposes, or for the purposes of trade and agriculture ivith the previous consent in writing of the landlord, and with respect to which the tenant has given to the landlord or his agent one calendar month's iirevious notice in writing of his intention to remove them during the tenancy, and does not apply to buildings, engines, or machinery erected solely for the jiurposes of trade; nor to articles affixed for mere ornament and convenience during the term. The Agricultural Holdings Act of 1875 in theorj' went far beyond the above act, giving the tenant, subject to certain rights of pre-emp- tion on the part of the landlord, the property in fixtures whether erected with the consent of the landlord or not, but as that act could be and in most cases was "contracted out of " by landlords, the practical effect was very small. The Agricultural Holdings Act, 1883 (which repeals the Act of 1875), has conferred the same rights in nearly similar terms to those used in the Act of 1875. This act also (as regards fixtures) can be excluded (see p. 673, post) by landlords, but neither does the act itself make special provision for such exclusion, nor, it is believed, has there been an exclusion in any large number of cases. Both acts are prospective only, the Act of 1875 applying to tenancies created between 14th February, 1876, and 1st January, 1884, and the Act of 1883 to tenancies created on or after 1st January, 1883. Sect. 53 of the Act of 1875 [r) gave the tenant an absolute property in all engines, machinery, or other the 14th February, 1876], unless tlie land- lord and tenant agree in writing in the contract of tenancy, or otherwise," tliat the act, or any pai-t of it, " shall not apply to tlie contract." As to tenancies cun-ent at the commencement of the act, if they were tenancies from year to year or at will, the act (hy sect. 57) applied to them unless either party had excluded itsojiera- tion by notice in writing. [ji) Ehrcs V. Mawc, 3 East, 38 ; 2 Sm. L. C. ; 6 K. K. 523. iq) See the Act at length, post, App. A. {■)•) The Act of 1875, 38 & 39 Vict, c. 92, applied, by secf. 56, to " every con- tract of tenancy [i.e. by sect. 4, to " every letting of land for a term of years or for lives, or for lives and years, or from year to year, or at will "] beginning after the commencement of the act [i.e. by sect. 2, Sect. 8. — Fixtures (Agricultural). 673 fixtures "affixed" by him " to his holding," except steam-engines, Ch. XYI. s.8. for which he was not under the act or otherwise entitled to compensa- , , Fixtures (Agricultural). tion, and which were not so affixed in pursuance of some obligation ■ in that behalf, or instead of some fixture belonging to the landlord, provided (1) that rent, kc, were paid, (•2) that no avoidable damage w'as done by removal, (3) that damage done by removal were made good, (4) that the landlord had a month's notice of the intention to remove, and (5) that the landlord had an option of purchase. The Act of 1883, by sects. 1, 54, and 61, applies to the following Tenant's holdings only : ' ^'-^'^• "Holdings, either wholly agricultural or u-Jiollg pastoral, or jjartly Agricultural agricultural and partly pastoral, or wholly cultivated as market gardens, jggs. ° "' held under a landlord for a term of years or for lives, or for lives and years, or from year to year by a tenant holding no employment under such landlord " (s). To such tenants the 34th section of the Act of 1883, repeating with no very considerable alterations the repealed 53rd section of the Act of 1875, gives an absolute property in fixtures as follows : — Where, after the commencement of this act, a tenant affixes to his rtcmovaUUty. holding any engine, machinery, fencing, or other fixture, or erects any building for which he is not under this act or otherwise entitled to compensation, and which is not so affixed or erected in pursuance of some obligation in that behalf or instead of some fixture or building belonging to the landlord, then such fixture or building shall be the property of and be removable by the tenant before or within a reasonable time after the termination of the tenancy. Provided as follows : — Provisoes. 1. Before the removal of any fixture or building the tenant shall pay Rent, all rent owing by him, and shall perform or satisfy all other his obligations to the landlord in respect to the holding : 2. In the removal of any fixture or building the tenant shall not do any Care in avoidable damage to any other building or other jjart of the holdino- : Removal. 3. Immediately after the removal of any fixture or building the tenant i\[akiug good shall make good all damage occasioned to any other building or other Diimage. part of the holding by the removal : 4. The tenant shall not remove any fixture or building without giving Notice to one month's previous notice in writing to the landlord of the intention Landlord. of the tenant to remove it : -5. At any time before the expiration of the notice of removal, the land- Purchase by lord, by notice in writing given by him to the tenant, may elect to Landlord. purchase any fixture or building comprised in the notice of removal, and any fixture or building thus elected to ba purchased shall be left by the tenant, and shall become the property of the landlord, who shall pay the tenant the fair value thereof to an incoming tenant of the holding ; and any difterence as to the value shall be settled by a refer- ence under this act, as in case of compensation (but without appeal). (s) Lely & Pearce's Agricultural Holdings, p. 18. See the application of the act discussed, post, Chap. XXI. l.t. 43 674 Chap. XVI. — The Preservation of the Premises. Ch. XVI. s. 8. Fixtures {Agricultural). Distinction between Act of 1875, and Act of 1883. Can s. 34 of the Act of 1883 be ' ' contracted out of?" Difficulties of Construction arising on s. 34 of Act of 1883. Conditions of Removal. The only distinctions between this section and the repealed 53rd section of the Act of 1875 are, (1) that the Act of 1883 applies to buildings, whereas the Act of 1875 did not ; (2) that the Act of 1883 does not repeat the qualification as to steam-engines contained in the Act of 1875 ; and (3) that the Act of 1883 expressly provides that the fixtures may be removed before or within a reasonable time after the end of the tenancy. Can sect. 34 of the Act of 1883 be "contracted out of?" That is, can the landlord in the contract of tenanc}' or otherwise agree with the tenant that the tenant shall not have the benefit of it, or have the benefit of it subject only to further conditions than the section itself imposes? It is submitted that he can. CuiUbet licet renwiciare juri jivo se introducto. Any person may waive a remedial law introduced for his own benefit ; and this provision as to fixtures appears to have been introduced for the benefit of the tenant as against the landlord, and upon no ground of public policy such as would bring into eff"ect an exception to the general rule {t). Inas- much, too, as the 55th section of the act avoids only contracts depriving a tenant of his right to claim compensation, it appears that the question of contracting out of the act was present to the mind of the legislature, and that the legislature deliberately abstained from avoiding contracts depriving the tenant of his right to fixtures also {u). If the section be contracted out of in the contract of tenancy itself, no consideration will be necessar}', the tenancy itself being sufficient consideration; but if a contract of tenancy made after the commencement of the act already subsist, and it be desired to avoid the effect of section 34, this cannot be done without a consideration moving from the landlord to the tenant ; that is, the landlord must give the tenant something in return for the tenant's giving up his advantages under section 34. The 34th section of the Act of 1883 presents considerable difficulties of construction. It will be seen that the fixtures become the property of and removable by the tenant, iwovided that the tenant observes four conditions, and that the landlord does not exercise an option of purchase. If the conditions be not observed, do the fixtures revest in the landlord, so that he can sue the tenant or a purchaser from the tenant for them, or has he merely an action for damages against the tenant ? It is submitted that in this respect, notwithstanding the practical hardship upon a purchaser, the section must be construed strictly in favour of the landlord, and that he may sue an}^ person whatever in trover for fixtures severed in breach of the conditions. if.) See Maxwell on Statutes (3rd ed.), («) See a siuiilar opinion expressed in p. 548, citing Taylor v. Phillips,Z East, 155 ; Amos & Ferard on Fixtures (3rd ed. ), p. 93. 6 R. R. 575. Sect. 8. — Fixtures (Agricultural). 675 Another question is, whether the expression "other fixtures" includes ornamental or trade fixtures, or whether what is called the ejiisdem generis rule is to operate so as to confine the operation of the expression to fixtures of the same kind with those already- named, that is, agricultural fixtures. It is submitted that orna- mental, but not trade, fixtures are included on the ground that for an agricultural tenant to have a house and ornamental fixtures therein might be considered to be in contemplation of the parties, whereas with trade fixtures it would be otherwise. It will be observed, that by the first paragraph of the section, the fixtures are removable " before or within a reasonable time after the termination of the tenancy." The curious and uncertain period of removability at common law is spoken of hereafter (,r). The statute appears to substitute for it a still more uncertain period to be deter- mined by what may be deemed by a jury, or a judge if a case should be tried by a judge alone, to be reasonable in fact, and it seems that within such period a tenant who has quitted has by force of the statute a power of re-entry for the purpose of removing the fixtures. Independently of the above acts, the agricultural tenant is left to the operation of the rule in Elwes v. Maive above referred to, so as to have no power of removal of agricultural fixtures (?/). Although an agricultural tenant cannot remove articles which are strictly of an agricultural nature, yet, if the object and purpose of the erections relate partly to trade of any description, the tenant may remove them (z); thus cider mills (a), machinery for working mines and collieries (h), and salt pans (c), have been considered removable : nurserymen have been allowed to remove trees and shrubs which they have planted for the purjjoses of sale (d), but not to plough up strawberry beds out of the ordinary course of manage- ment of the nursery-ground (e): and it would seem that the tenant cannot remove hothouses, greenhouses, forcing-pits and erections of that description (/), otherwise than as allowed b}' the Landlord and Tenant Act, 1851, 14 & 15 Yict. c. 25, s. 3 (fj), or the Agri- cultural Holdings Act. In no case can private persons sell or remove fruit-trees, although planted by themselves (A); nor hedges, nor flowers, nor even a border of box (i). [d) Warden v. Usher, 3 Scott, N. R. 508 ; Amos & F. 68, 343. (c) Wc.thcrcll V. Hou-clh, 1 Camp. 227. (/) Amos & F. 70, 343 ; but see Sijme V. Harvey, 24 Sc. Sess. Cas. 202. ((/) Ante, 672. \h) Wyndham v. Way, 4 Taunt. 316 ; 13 R. R. 607, Heath, J. ; Com. Dig. tit. Waste (D. 3) ; Amos & F. 6D, 344. (i) Empsoti V. Sodcn, 4 B. & Ad. 655 ; Amos & F. 70. Ch. XVI. s. 8. Fixtures {Agricultural), "Other Fixtures." {x) Post, Sub-s. (f). [y) Elwcs V. Mawc, 3 East, 38 ; 2 Sm. L. C. ; 6 R. R. 523. iz) Amos & F. 64—70, 343. {a) 3 Atk. 40 ; disapproved of by the House of Lords in Fisher v. Dixon, 12 CI. & Fin. 312 ; Walmslcy v. Milne, 7 C. B., N. S. 115 ; 29 L. J., C. P. 97. (b) Lau-ton v. Lawton, 3 Atk. 13 ; Ld. Dudley v. Ld. Ward, Ambler, 113. (c) Lawton v. Salmon, 1 H. Blac. 260 ; 2 R. R. 764. Time of Removal, Summary of what may be removed at Common Law. 43—2 676 Chap. XVI. — The Presekvation of the Premises. Ch. XVI. s. 8. Fixtures ( Contracts respecinj). Construction of express Contracts respecting Fixtures, as to Removal. (e) Contracts respecting Fixtures. It is a principle of law applicable to fixtures, as well as other things, that individuals, on entering into a contract, may agree to vary the strict j)osition in which they would otherwise legally stand towards each other, where no absurdity or general inconvenience would result from the transaction {k). Modus et conventio vinciint legem (/). Therefore buildings erected for the purposes of trade, under leases containing covenants to yield up in repair, at the expiration of the term, all buildings which should be erected upon the demised jiremises, cannot be removed by the lessees, Avhen the words of the covenant are general, and contain no exception of any particular sort of buildings (;?0. Where a lease contained a general covenant to repair and leave in repair, and lime-kilns were erected by the lessee during the term, it was held, that he could not remove them at the end of the term without committing a breach of covenant (ii). So salt pans erected by a tenant during his term cannot be removed where the lease contains a covenant to leave the salt works in good repair at the end of the term (o). Where there was a covenant to keep in repair the premises, and all erections, buildings, and improvements erected on the same during the term, and to yield up the same at the end of the term, it was held to be broken by the removal of a veranda erected during the term, the lower part of which was affixed to the ground by means of posts (jj). "Where there is a covenant to yield up at the expiration of the term all erections and improvements made during the term, a greenhouse, the framework of which is laid on walls embedded in mortar, cannot be removed, although no damage is done to the walls by removing it (q). A lease contained covenants by the lessee to keep and leave in repair the demised premises, "together with all wain- scots, windows, shutters, fastenings, &.C., and other tilings which then were, or at any time thereafter should be, thereunto affixed or belonging (looking-glasses and furniture excepted), and together also with all sheds and other erections and improvements which should be erected, built or made upon the demised premises." An assignee of the lease during the term, removed an old shop window, and put up in its place a plate-glass front, but without in any manner {k) Amos & F. 108, 345 ; Dumergue v. Murnseij, 2 H. & C. 777 ; 33 L. J., Ex. 88 ; Staiisfeld v. Mayor, tkc. of Portsmouth. 4 C. B., N. S. 120; 27 L. J., C. P. 124; Bishop V. Elliott (in error), 11 Exch. 113, 122 ; 24 L. J., Ex. 229 ; Earl of Man^Jleld V. Blackhurve, 6 Biug. N. C. 426. (I) 2 Co. R. 73 ; Broom's Max.; Haslctt V. Burt, 18 C. B. 162, 893. (m) Naylor v. Collinje, 1 Taunt. 19 ; Thrcslier v. East Loiidon W. IF. Co. , 2 V>. & C. 608 ; 2 L. J., K. B. 100. (») 2'hrcsher v. East London J!'. JJ'. Co., supra. (o) Earl of Maiisficld v. Blackhiiriie, 6 Bing. N. C. 426. (p) Pcnrijv. Broivn, 2 Stark. R. 403. {q) West V. Blakeicay, 2 M. & G. 729 ; 9 Dowl. 846. Sect. 8. — Fixtures (Contracts respecting). 677 fastening it to the premises, except by means of wedges : held, that Ch. XVI. s. 8. this phite-glass front was either a "window" or an "improvement Fu-tw-es ^ . . {Contrmts within the true meaning of the covenant, and therefore irremovable respectmff). by the tenant at the end of the term, althoiujli erected for the imrpnses of trade" (r). Where by the terms of his lease or agree- Renounced ment the tenant renounces his ordinary right to remove any of his cannorbe fixtures during the term, the sheriff cannot take them under an taken in , . Execution. execution against him (s). A lease contained a covenant to yield up certain scheduled General articles, together with all doors, wainscots, shelves, presses, dressers, drawers, locks, keys, bolts, bars, staples, hinges, hearths, chimney- wimtdey. pieces, mantel-pieces, cliimne}' -jambs, foot-pans, slabs, covings, window-shutters, partitions, sinks, water-closets, cisterns, pumps and rails, water-tanks, and other additions, improvements, fixtures and things which were and should be anyways fixed or fastened upon the premises : held, that the general words could not be restricted (there being no assignable genus to which the enumerated articles belonged), and that the lessee could not make a marketable title even to articles in the nature of tenant's fixtures {t). So the lessee of an oil refinery who has covenanted to deliver up the premises at the end of the term, together with all doors, &c. (specifying numerous articles), and all other things which now are or at an}' time during the said term shall be fixed or fastened to the freehold, has no right to remove trade fixtures, and may be restrained from so doing (»)• Where a colliery, with machinery and implements for working it, was leased for years, with a proviso for re-entiy on non-payment of rent, and a covenant by the lessee, at the determination of the demise to deliver up the machinery and implements, conformably to an inventory annexed to the lease, of which a revaluation was to be made three months before the expiration of the demise ; and the landlord recovered judgment in ejectment in Trinity term for a forfeiture for non-pay- ment of the rent, but did not execute the writ of possession until the 8th of November, and the tenant committed an act of bank- ruptcy the next da}' ; it was held, that the landlord was entitled to take possession of all the machinery and implements (some of which had been brought on the premises by the tenant during the term), although no previous valuation had been made {x). A lease of mines contained a covenant for the lessee to erect furnaces, iron- works, &c., and to repair and yield up the furnaces, fire-engines, (r) Hasletl v. Burt, 18 C. B. 162, 893 ; 17 W. K. 153. 25 L. J., C. P. 201, 295. {x) Slorcr v. Hunter, 3 B. & C. 368 ; (s) Dumcrguc v. PMmaey, 2 H. & C. and see Clark v. Croiunshmu, 3 B. & Ad. 777 ; 33 L. J., Ex. 88. 804 ; Horn v. Baiter, 9 East, 215 ; 9 E. R, [t) Wilson V Whateley, 1 J. & H. 436 ; 541 ; 26 R. R. 486 ; Fairbimi v. Easticood, 7 Jur., N. S. 908. 6 M. & W. 679. [u) Bidder v. Trinidad Pclroleutn Co., 678 Chap. XVI. — The Preservation of the Premises. Ch. XVI. s. 8. Fixtures {Contracts respecting/). iron-works, dwelling-houses and all other erections, &c., to be erected, built or set up, except the iron-work, castings, railways, whimse^ys, gins, machines, and the movable implements and materials used in or about the said furnaces, fire-engines, iron- works, stone-pits and premises ; and there was a power given to the lessor to purchase the excepted articles ; it was held, that the lessee had a right to remove whatever was in the nature of a machine, or part of a machine, though fixed in brickwork, but not what was in the nature of a building or support of a building, although made of iron(?/). A covenant to leave a water-mill with all fixtures, fasten- ings and imjyrovements, was held to include a pair of new mill-stones, set up by the lessee during the term, although by custom they might have been removed (z). A covenant b}' a lessee that at the end of the term he would deliver up to the lessor the demised premises, " together with all locks, keys, bars, bolts, marble and other chimney -'pieces, foot-pans, slabs, and other fixtures and articles in the nature of fixtures, which shall at any time during the said term be fixed or fastened to the said demised premises, or be thereto l^elonging," is confined to "landlord's fixtures," and does not pre- vent the lessee from removing or selling trade and other tenant's fixtures erected by himself during the term (a). In Duck v. Braddyll a lease was made of a cotton factory and machinery in consideration of 1,250/. paid on execution of the lease, and of rent for the first year 1,600/., on the next day, and 350/. 3'early afterwards. There were provisoes that the lessor might distrain the machinery for rent, and that when the rents reserved to be payable for the first year should have been paid, and all other covenants, &c., therein contained on the lessee's part had been fulfilled, the lessee should become absolutely entitled to the machinery. There was also a covenant to use the machinery on the premises and not elsewhere. It was held, that the property in the machineiy passed to the lessee on the payment of the 1,600/., and that it did not continue in the lessor until the end of the term {h). In conclusion upon this part of the subject, — before a tenant removes an article v.hich he considers as a removable fixture, he should examine his right not only with reference to the general law of fixtures, but also as it may be affected by any express or implied contract by which he may be bound. Where a tenant renews or extends his term, he must be (w) Foley v. AddcnhrooJce, 13 M. & W. 174 ; Amos & F. 90. And see Ilex v. Top- ping, M'CJel. & Yoinige, 544; Diimergue V. linmsey, 2 H. & C. 777. {z) Martyr v. Bradley, 9 ]3iiig. 24. [a) Bishap V. Elliott (in error), 11 Exch. 113 ; 24 L. J., Ex. 229. The court below- decided that the lessee had the right to sell only the trade fixtures : Elliott v. Bishop, 10 Exch. 496, 622 ; 24 L. J., Ex. 33 ; but the judges were much divided in ojiinion. {b) Luck V. Braddyll, M'CIel. 217 ; 13 Price, 455. fl Sect. 8. — Fixtures (Contracts respecting). 679 careful to preserve Lis right to fixtures, for, without some express Ch. XVI. s. 8. stipulation on the subject, he ma}' lose his right at the expiration of -^'^',"''^* his first term (c). respecting). Accepting the demise of a house containing fixtures, does not Contracts raise an implied contract to pay for the fixtures {d). V>y the grant Ip.spectmg^ of a house with the appurtenances all the fixtures pass, unless what things some intention to the contrary be expressed {e). But it is otherwise ^^'^'^^ ^^" where, by an enumeration of particular fixtures in the conveyance, an intention is shown to exclude other: expressio iniiiis est cxdusio alterius (/). Upon the sale of a mill or factor^-, looms used in the mill are not within the words '' steam-engines, boilers, shafting, piping, mill-gearing, gasometer, gas-pipes, drums, wheels, and all and singular other the machinery, fixtures, and effects fixed up, in, attached or belonging to the mill or factor}' or premises" (^). So looms standing upon a loom-foot, from which they may be removed at pleasure, will not pass by the general term of machinery, though they are worked by steam-power which is attached to the mill and mortgaged with \t{g). A mortgage of a silk-mill was expressed to include " all those the steam-engines, boilers, steam-pipes, main- shafting, mill-gearing, millwrought work and other machinery and fixtures, whatsoever, then erected or set up or standing, &c., in or upon the mill or any part thereof: " — held, that all the machinery and fixtures used in the manufacturing of silk within the mill were included {h). Wherever, therefore, it is intended in contracts which concern Contracts the realty as well as the fixtures, that the latter should be paid Fixtures not for separately, a stipulation to that effect ought to be introduced, within Statute Contracts for the sale of fixtures are not within the Statute of ^Ta/Zcn v Frauds, as they are not goods and chattels within the meaning of Rimder. the statute, nor do they, although annexed to the freehold, con- stitute an interest in land(?). But a memorandum of the actual sale of fixtures requires a conveyance stamp, and it makes no difference that it is in the past tense (/j). A reversionary interest in trade fixtures will pass by an agreement in writing, though not under seal (/). \^'here a lessee, who had power to remove a green- house fixed to the freehold, agreed to sell the lease, together with (c) Post, Sect. 9 ; Fitzherhert v. Shaw, (g) Hutchinson v. Kmj, 23 Bear. 413 ; 1 H. Blac. 258 ; Thresher v. East London 26 L. J., Ch. 457. Watcrivorks Co., 2 B. & C. 608, 614 ; (A) Ilalcij v. Hammcrslcy, 3 De Gex, 2 L. J., K. B. 100 ; 26 K. R. 486. F. & J. 587 ; 30 L. J., Ch. 771 ; and see {d) Go^ff V. Harris, ^ M. & G. 573. Colcyravc v. Bias Santos, 2 B. & C. 76. (e) Co'legrave v. Bias Santos, 2 B. & C. {i) Hallen v. Eundcr, 1 C, M. & R. 76 ; Steward v. Lomhe, 1 Brod. & B. 506 ; 275 ; Lee v. Risdon, 7 Taunt. 191 ; 17R. R. 21 R. R. 700 ; BoijdcU v. McMichael, 1 484 ; Pinner v. Arnold, 1 Tyr. & Gr. 4 ; C, M. & R. 177 ; Longstaff v. Meayoe, Lce\. Gaskell, L. R., 1 Q. B. D. 700. 2 A. & E. 167. [l] Horsfall v. Heij, 2 Exch. 778. (/) Hare v. Eorton, 5 B. & Ad. 715. (/) Petrie v. Daicson, 2 C. & K. 138. 680 Chap, XVI. — The Preservation of the Premises. Ch. XVI. s. 8. the greenhouse and furniture, plants and crops for a certain sum^ Fixtures [Contracts respectitif/). Mortgage of Fixtures. Meux V. Jacobs. Separate JVIortgage of Fixtures. Bills of Sale Acts. Rights of Trustees in Bankruptcy. but was afterwards unable to obtain the lessor's consent to the assignment of the lease, which was necessary ; it was held, that the contract was an entire one, and that the lessee could not sue for the price of the greenhouse (m). It was held by the House of Lords, in Meitx v. Jacobs (n), that the mortgage of a lease Avas a mortgage by implication of tenant's fixtures, whether affixed b}' the tenant before or after the mortgage ; and it was pointed out that it did not require registration under the Bill of Sale Act, 1854, as against the holder of a bill of sale. As against such a person, the fixtures, although removable by the tenant as trade fixtures during the term, were held to continue chattels real, although as against trustees for creditors and execu- tion creditors the Bill of Sale Act made them chattels personal. And even as against trustees for creditors and execution creditors,, a mortgage of fixtures did not require registration under the Bill of Sale Act, 1854, unless it gave power to the mortgagee to sell or take possession of the fixtures separately (o). If such power were given,, the mortgage required registration, although there were no assign- ment of the fixtures in so many words (j))- Under the Bills of Sale Act, 1882 (45 & 46 Vict. c. 43), every bill of sale of " personal chattels " requires registration as therein mentioned, otherwise it is void. But by sect. 4 of the Bills of Sale Act, 1878, the term "personal chattels" (which included fixtures generally in the repealed Bill of Sale Act, 1854) means (inter alia) fixtures " icheu separately assigned or charged," " but shall not include fixtures (except 'trade machinery') when assigned together with a freehold or leasehold interest in an}- land or building to which they are affixed." The 5th section of the Act of 1878 contains an elaborate definition of "trade machinery" for the purpose of the Bills of Sale Acts. It has been held that a steam-engine, erected for the purpose of working a colliery, to be used by the lessee of such colliery during his term, but to be held as the j^i'operty of the landlord, subject to such use, did not pass to the assignees of the tenant on his bankruptcy (q) ; that fixtures which were by law removable as between landlord and tenant, part of which were erected before a mortgage, and part afterwards, passed to the mortgagee, and not (m) Slcddon v. C'ruikshanJc, 16 M. & W. 71. {11) Meux V. Jacobs, L. R., 7 H. L. 481 ; 44 L. J., Ch. 481 ; 32 L. T. 171 ; 23 W. R. 526. (0) Ex parte Barclay, Be Joyce, L. R., 9 Ch. 577 ; 43 L. J., Bank. 137 ; 30 L. T. 479 ; 22 W. R, 608, distinguishing Ex jmric Daglish, L. R., 8 Ch. 1072. {p) Ex parte Daglinh, ulii supra. See also Longbotlom v. Berry, L. R.. 5 Q. B. 123 ; Mather v. Eraser, 2 K, & J. 536. [q) Coombs V. Beaumont, 5 B. & Ad, 72. And see lurtherChap. VII., Sect. 1], ante. Sect. 8. — Fixtures (Contracts respecting). G81 to the assignees of the bankrupt mortgagor (r) : and that where Ch. XVI. s. 8. copper roller manufacturers, being seised in fee of a mill and land, J'ml7a7ts erected thereon steam-engines, machiner}^, &c. for the purposes of respecting). their trade, and then mortgaged in fee the mill and land, with all fixtures, &c., and afterwards became bankrupt, the mortgagees were entitled to all the machinery, &c. fixed to the freehold, and that the deed did not require to be registered as a bill of sale under the Bill Bill of Sale. of Sale Act, 1854 (.s). But a mortgage of trade fixtures without the mill or land to which they are annexed, was held to be a mortgage of personal chattels within the meaning of that act, as explained by sect. 7, which includes " fixtures and other articles capable of complete transfer by delivery " (f). And such fixtures will be deemed to be in the order and disposition of the mortgagor in the event of his bankruptcy whilst he remains in possession thereof («). The registration of the mortgage under the Bill of Sale Act, 1854, was held to make no difference in this respect [x). It may be added, that even before the decision of the House of "What passes Lords in Mcux v. Jacobs, above referred to, it had been held that by "^ ° "" a mortgage of a mill, the stones, tackling and implements pass to the mortgagee (?/) ; that an equitable mortgage of a leasehold public- house with the fixtures therein, consisting of ordinary house fixtures and trade fixtures, was sufticient to prevent any of them being in the order and disposition of the lessee on his becoming bankrupt (5;) ; and that under an equitable mortgage, by the simple deposit of a lease unaccompanied by an}- memorandum, the tenant's fixtures Avill be included (a). And it was distinctly laid down in Mcuxx. Jacobs, that the distinction, at one time {b) supposed to subsist between mortgages of freeholds and leaseholds, as regards registration, is not maintainable (c). Words which would, in a mortgage in fee, pass trade fixtures, will also pass them in a mortgage by sub-lease, but in a mortgage by sub-lease the property in the fixtures giving the right to remove will not pass to the mortgagee unless an intention to that effect be apparent from the deed(f/). The above cases, however, relate to the mortgagor's fixtures. The Tenant's fixtures of the tenant of a mortgagor, brought by him upon the ,j,;^ ^.^g^ ^, (r) Ex parte Reynel, 2 Mont., D. & De [y) Place v. Fagg, 4 Man. & R. 277 ; G. 443 ; Fletcher \. Manning,! C. & K. Ex parte Bentley, Ee West, 2 Mont., 350 ; Ex parte Coivell, 17 L. J., Baiik. 16. D. & De G. 591. {s) Mather v. Eraser, 2 K. & J. 536 ; {z) Ex parte Barclay, 5 De 0., M. & G. 25 L. J., Ch. 361; Boyd v. Shorrock, 403 ; 25 L. J., Bank. 1. L. R., 5 Eq. 72, 80; 37 L. J., Ch. (a) JFilliams v. Evans, 23 Beav. 239. 154. (/)) See Hau-trcy v. Biitlin, L. R., 8 (0 Waterfall v. Penistone, 6 E. & B. Q. B. 290, per Lu.sli, J. 876 ; 26 L. J., Q. B. 100. (f) And see Ex parte Ticecdy, Re (».) Whitmorc v. Empison, 23 Beav. 313 ; Trethowan, 46 L. J., Hank. 43. 26 L. J., Ch. 364. {d) Southimrt and IVcst Lancashire (x) Badger v. Shaw, 2 E. & E. 472 ; 29 Banking Cu. v. Thompson, 37 Ch. D. 64. L. J., Q. B. 73. Mortsage. 682 Chap. XYI. — The Peeseeyation of the Peemises. Ch.XVI. K.S. demised i^remises after the mortgage, do not pass to the mortgagee, [Contracts ^'^^ i^^^J ^6 removed by the tenant of the mortgagor {e). rcspedmg). Extent of Right of Tenant to remove Fixtures. When Removal may be. (f) Eemoval of Fixtures. The right of a tenant to remove tenant's fixtures is a power coupled with an interest (/), which follows his proj^ert}' in the fixtures as against the landlord {•) is strenuously argued by Mr. Amos (s) to form no exception to the general rule in favour of the landlord ; but it has been expressly dissented from in an Irish case (0, and more than {e) Sanders v. Davis, 15 Q. B. D. 218 ; 54 L. J., Q. B, 576 ; 33 W. R. 655. (/) Foole's case, 1 Salk. 368 ; Minshall v. Lloyd, 2 M. & W. 460. {g) See Cumberland Union Banking Co. v. Maryport Hematite, tLc. Co., [1891] 1 Ch. 415. [h) Hallen v. Rimder, 1 C, M. & R. 266 ; London and Westminster Loan and Discount Co. v. Drake, 6 C. B., N. S. 798, 811 ; 28 L. J., C. P. 297. (i) Ex parte Quinccy, 1 Atk. 477 ; Lee V. liisdon, 7 Taunt. 191 ; 17 R. K. 484 ; C'llegravc v. Dia^ Santos, 2 B. & C. 76 ; Minshall v. Lloyd, 2 M. & W. 450, 460. [k) Wceton v. Woodcock, 7 M. & W. 14. [l) See Lyde v. rMSScll, 1 B. & Ad. 394, iu which case the tenant had quitted 2)ossession, and failed to recover severed fixtures from the htndlord iu trover. (m) Leader v. Homeu-'ood, 5 C. B. , N. S. 546; 27 L. J., C. P. 316; and see the question discussed by Kiudersley, V.-C, in Gibson V. Hammersmith 11. Co. (32 L. J., Ch. 337), in which the defendants were hehl bound, under the Lands Chiuses Act, to give compensation for trade fixtures. («) Minshall v. Lloyd, 2 M. & W. 450 ; Mackintosh v. Trotter, 3 M. & W. 184. (o) Fugh V. Arton, L. R., 8 Eq. 626 ; 38 L. J., Ch. 619. ( p\ Minshall v. Lloijd, 2 M. & W. 450 ; Mackintosh v. Trotter, 3 M. & W. 184 ; but see Sumner v. Bromilow, infra [d). (q) 2 East, 88. (r) See Heap v. Barton, 12 C. B. 278 ; per jervis, C.J. (s) Amos & F. 102. [t) Dccble V. McMullen, 8 Ir. C. L. Rep. 355. Sect. 8. — Fixtuees (Removal of). 683 once questioned in England (ii), and appears to be bad law, as seems Ch. XVI. s. 8., to follow from the criticism of Charles, J., in Barf v. Prohynix). ,„^'^^"r^* . {Removal oj). In that case a tenant held over because an incoming tenant failed to pay him for fixtures as agreed for, and removed the fixtures while still in possession, but after having been sued in ejectment, Charles, J., held, in an action by the landlord for wrongful removal and conver- sion, that no inference of a subsisting tenancy could be drawn, and that the tenant was a trespasser at the time of removal, but that the landlord was entitled onl}- to recover the auction or breaking-up value of the fixtures. Removable fixtures not removed become part of the freehold, even No Action though they remain on the premises by the parol consent of the Moito-ao-ees of lessor ; and though such consent might give the tenant a right of -Lessor, action for the value of the fixtures against the lessor if he should subsequently refuse to permit their removal, it will give no such right as against mortgagees of the lessor who were no parties to it, in event of their refusal {y). On the whole it seems that, unless the landlord does some act to Riglit to „ . ,, , . , unsevered create what has been called an excrescence ot the term, tlie riglit Fixtures. to unsevered fixtures vests in the landlord on the determination of a term certain ; but that a court might possibly hold that abstaining from issuing a writ of ejectment is equivalent to an overt act by the landlord {z). If the term be an uncertain one, as if the lessor be a tenant for Removal by life, or if the tenancy be at will (a), it seems clear that the tenant Tenant for will be allowed a reasonable time, after the expiration of his estate, to ^^!^?: °^" ^"^ remove " tenant's fixtures." For no laches can be imputed to such a tenant in not having availed himself of the privilege of severance during the term ; neither can a gift to the landlord be implied ih). In Porter v. Drew (c) a sub-lease of a nursery ground contained a Head-lease covenant by the sub-lessee to deliver up all landlord's fixtures at the end lease. of the term. The head lease contained a covenant (unknown to the Porter v. sub-lessee) that the lessee would deliver up not only all landlord's fix- tures, but also all trade fixtures at the end of the term of the head-lease. It was said that a covenant in the sub-lease that the sub-lessee would be allowed by the mesne landlord, apart from the head-lease, to remove trade fixtures might not unreasonably be implied, but the court was clearly of opinion that there was no implied covenant in the sub-lease that the head-lease did not contain the covenant to deliver up the trade fixtures. {u) In IVecton v. JFoodcod; 7 M. & W. Hawkins, J. 14, by Alderson, B., and in Leader v. {;:) See per Charles, J., in Bm-ff v. Bonuivood, 27 L. J., C. P. 316. Frohyn, supra. [x) Barffy. Frohyn, 64 L. J., Q. B. 557 ; («) See as to Tenant at "Will, 242, ante. 73 L. T. 118— tried without a jury. {h) Amos & F. 107. {y) Thomas v. Jennings, 66 L. J., (c) Porter v. Drew, 5 C. P. D. 143 ; 49 Q. B. 5; 75 L. T. 274 ; 45 W. R. 93, per L. J.. C. P. 482 ;42L.T. 151 ;28 W.R. 672. 684 Chap. XVI. — The Preservation of the Premises. Ch.XVI. s. 8. Fixtures {Removal of). Special Agreement. Suirender. How the Removal must be effected. A reasonable time for removal after the expiration of the term will also be allowed in the case of a stipulation in the lease that the tenant may remove the fixtures " at the expiration of the term " {d). The surrender of a lease, it ma}' be added, will not prejudice the rights of a purchaser of fixtures before the surrender (e). Where the purchaser of lands brought an ejectment against a tenant from year to year, and the parties entered into an agreement that judg- ment should be signed for the plaintiff, with a sta_y of execution till a given period ; it was held, that the tenant could not in the interval remove buildings, kc. from the premises which he had himself erected during his term, and before the action was brought (/). Where the landlord during the term, by letter, declined to buy the tenant's fixtures, but added, " I have no objection to your leaving them on the premises and making the best terms you can with the incoming tenant," it was held that such letter did not operate as a valid licence (it not being under seal) ; and that if the new tenant refused to pay for the fixtures so left, or to permit them to be removed, no action of frore?* would lie for them, whilst they remained unsevered from the freehold (//). Where the tenant has a legal right to remove fixtures after the end of his term, and is prevented from doing so by the landlord or incoming tenant, the action should be for preventing the plaintiff from exercising his right to sever and remove the fixtures {h). But the value of fixtures severed during the tenancy, and of other goods left behind, ma}' (after a sufficient demand and refusal) be recovered in trover (/). But it is otherwise with respect to fixtures which were left unsevered on the expiration of the tenancy (A.). It appears to be generally understood in practice that where trading as well as ornamental fixtures ma}'' be removed, and are accordingly taken down, the tenant is liable to repair any injury the premises may sustain by the act of removal ; and in like manner, it would seem, that where a fixture has been put up in substitution for an article which was attached to the premises at the time of the demise, the tenant, on taking down his own fixture, is bound to restore the former article, or to replace it by another erection of a similar description (/). It has been held, that in removing engines, {d) Stansjicld v. Mayor of Portsmouth, 4 0. B., N. S. 120 ; 27 L. J., C. P. 124 ; and see SwMtcr v. Bromiloiv, 34 L. J., Q. B. 130 ; 11 Jur., N. S. 4S1 ; Piujh v. Avion, supra. (e) Saint v. Pillcy, L. R., 10 Ex. 137 ; London and Westminster Discount Co. v. Drake, 6 C. B., N. S. 798 ; 28 L. J., C. P. 297. (/) Fitzherbert v. Shaiv, 1 H. Blac. 258 ; Heap v. Barton, 12 C. B. 274. {(/) Roffey V. Henderson, 17 Q. B. 574 ; Leader \. Horncivood, 5 C. B., N. S. 546. (/t) London and Westminster Loan and Discount Co. V. Drake, 6 C. B., N. S. 800, 811. (i) Jjcadcr v. Homcwood, 5 C. B., N. S. 546, 548. (k) Wilde V. Waters, 16 C. B. 637. (/) Amos & F. 89. Sect. 8. — Fixtuees (Eemoval of). 685 . 686 Chap. XVI. — The Preseevation of the Premises. Ch. XVI. s. Fixtures [Remedies respecting) . Remedies to recover Damages for an improper Sale of Fixtures. way of mortgage, but continued in possession and became bankrujit, whereupon the assignees removed fixtures which b}- the lease were to be yiekled up at the end of the term to the lessor ; it was held, that the mortgagee might maintain trover against the assignees {y). If a lessee, who is possessed of tenant's fixtures, mortgage his term with the fixtures and afterwards becomes bankrupt, the mortgagee may recover in trover the value of the fixtures from the assignees, who have removed and converted them {2). Where the assignees of a bankrupt mortgagor who had vested in his mortgagee an immediate interest in fixtures, severed and sold them ; it was held, that the mortcfagee was entitled to recover from the assignees the value of the fixtures estimated as between outgoing and incoming tenant {a). A lessee of a house containing fixtures, executed an assignment of the premises by wa}' of mortgage, not mentioning the fixtures : he afterwards assigned the premises and all his estates and effects, to trustees ; the trustees being in treaty for a sale of the fixtures, the mortgagee, whose principal and interest were due, took forcible possession of the house, and refused, on demand, to deliver up the fixtures ; the trustees brought trover ; and it was held, that they could not recover for them {h). If an incoming tenant purchase as fixtures from the outgoing tenant property which in fact belongs to the landlord, he may recover back the money he paid for it, in an action against the out- going tenant for money had and received ; and in such action it will be no defence that the outgoing tenant Avas not aware that the articles belonged to the landlord, having bought them himself from a preceding tenant; he, however, has his remedy against such preceding tenant (e). But there is no imijlied Avarranty of title in the contract of sale of a i^ersoiial chattel, the maxim being caveat emptor ; and therefore, in the absence of fraud, a vendor is not liable for a defect of title, unless there be an express warranty, or an equivalent to it, by declaration or conduct («). AVhere the owner of the goodwill and fixtures of a public-house allowed another person to represent himself as such to the landlord, whereupon they let the house to him and he sold the house and fixtures to a bona fide purchaser ; it was held, that the real owner of the fixtures had estopped himself from recovering the fixtures of the purchaser (e). (-!/) Hitcliman v. Walton, 4 M. & W. 409. (z) Boydell v. M'Michacl, 1 C, I^I. & R. 177- Thomimn v. Pcttit, 10 Q. B. 101; Horsfall v. Hey, 2 Exch. 778. («) Thomi)son v. Pettit, supra. {h) Lvngstaff v. Meagoe, 2 A. & E. 167. (c) Euhinson v. Andcrton, Peake, 94. (rf) Morlcy v, Attcnborough, 3 Exch. 500 ; Ormrod v. Ifuth, 14 M. & W. 651, 664 ; Biornby v. JBollett, 16 M. & W. 644 ; Sivis V. Marryat, 17 Q. B. 281. (e) Gregg v. Wells, 10 A. & E. 90 ; and see Freeman v. Cooke, 2 Exch. 654 ; 6 D. & L. 187 ; Clarke v, Uart, 6 H. L. Cas. 633,644, 655. Sect. 9.- — Survey and Valuation of Dilapidations, etc. 687 Sect. 9. — Surrcij and Valuation of Dilajndations and Fixtures. Ch. XVI. s. 9. A landlord has no legal right during the term to enter upon the y'dnaMmof demised premises to view their condition, or the dilapidations, wants ^>^^P'(^(iiions, of repair, mode of cultivation, Sec, except in pm-suance of some — '- • power or authority in that behalf contained in the lease or agree- Landlord to ment, or the written or oral leave of the tenant (/). For an\^ such enter the X rcniisBs to unauthorized entry he would be liable to an action of trespass at the Survey, &c. suit of the tenant. When, as frequently is the case, there is a cove- nant or proviso in the lease or agreement that the landlord may enter so many times during the 3'ear to survey the premises, and to require the necessary repairs to be done, he ma}^ select any days in the year as he thinks fit^ whether they be the worst or the best time for doing repairs (g). But a covenant for a landlord to be allowed to come into a house to see the state of its repair " at convenient times" is not broken by his not being allowed to go into some of the rooms, if the tenant has had no previous notice of his coming (h). Towards the end of the term, some respectable and competent Estimate of surveyor or architect (to be mutually" agreed on) should be employed ^^V^'^^ ^°^^' on behalf of both landlord and tenant to ascertain what defects and wants of repairs exist contrary to the covenants or stijmlations in the lease or agreement, and the sum it will take to do what is necessary. He should, of course, be furnished with the lease or agreement, or a copy ; and he should be acquainted with the law as to the construc- tion of covenants to repair and leave in repair, &c. (i). He should decide fairly and impartiall}" between the parties, in like manner as an arbitrator. He should make a schedule of the repairs, &c., necessar.y to be done (stating them in detail), with an estimate of the sum it will take to do such repairs, &c. Such schedule and estimate should be written upon an appraisement stamp (k). When the appraisement is not made on behalf of both parties, but merely for the private information of the party procuring it to be made, it does not require any stamj) (/). The charges of and incident to such survey and appraisement should be expressly provided for by agreement between the parties and the person employed. In some cases the decision of the valuer may be reviewed by the court, in the same manner as ordinary arbitrations (m). (/) Ante, 639. ordinary covenant to leave in repair, in ((/) Hill V. Barclay, 16 Ves. 403 ; 11 Tarbuck's Handbook of House Property, R. R. 147. 2nded., p. 74. (70 Doe d. Wethcrdl v. Bird, 6 C. & P. (?) Atkitison v. Fell. 5 M. & S. 240 ; 195. Jackson v. Stopherd, 2 Cr. & M. 361, 367; (i) Ante, 626 et seq. Amos & F. 357 ; Stamp Act, 1891, and (^-) Stamp Act, 1891, and Sched. tit. Sched. tit. A2}2)raisement, Exemption 1. Appraisement, post. Appendix A. {m) See Re Hoi^per, L. R.. 2 Q. B. 367 ; See a very full form of specification illus- 36 L. J., Q. B. 97. tratiuL^ " a few matters arisina;" under the 688 Chap. XVI. — The Preservation of the Premises. Ch.XVI. s. 9. Survey and Valuation of Dilapidations, Amount of Damages. Valuation of Fixtures. Valuations between Outgoing and Incoming Tenants. It is usual and desirable that the tenant should, instead of executing the required repairs himself, pa}^ the estimated cost of them to the landlord. What this cost is to be must depend almost entirely on the judgment of the surveyor. For the modern practice of surveyors, the reader is referred to the useful " Handbook of House Property," by Mr. E. L. Tarbuck, architect and surveyor, of which a second edition was published in 1880. The valuation of any fixtures to be paid for by the landlord at the end of the term may be made in like manner. But, as a general rule, a landlord is not obliged to pay for any fixtures whatever, except such as he has expressly contracted to take and pay for at the end of the term, or for which he is liable according to the custom of the country. If, after such valuations have been made and paid for, the incoming tenant discover that he has paid for too much, or for things not included in the valuation, he cannot recover the over-payments in an action for money had and received, esj^ecially where he had not given any notice of the errors, and demanded back the money before action {n). Valuations between outgoing and incoming tenants of fixtures, &c., should be made in like manner as between landlord and tenant ; but the incoming tenant should take especial care to ascertain that he will have a good title as against the landlord, to any fixtures he purchases from the outgoing tenant (o) ; for it is to be remembered that an outgoing tenant, unless the holding be agricultural, has only a right to remove his men ^fixtures during his term (p) ; and even if the holding be agricultural, before or within a reasonable time after the termi- nation of the tenancy, and he cannot, by agreement or otherwise, convey to the incoming tenant (without the landlord's concurrence) a greater right or title than he himself possesses. Consequentl}', if the tenant's fixtures are permitted to remain affixed to the demised pre- mises when the old tenancy ends and the new one commences, they will belong to the landlord as parcel of the freehold, notwithstanding that the incoming tenant has paid for them to the outgoing tenant their full value as fixtures. To prevent this, the fixtures so pur- chased should be specified in a schedule to the new lease, and an express provision inserted therein that the tenant shall be at liberty at any time during the term to remove and dispose of them (inter alia) as tenant's fixtures. An outgoing tenant, who has quitted possession, has no right to re-enter on the incoming tenant to remove any fixtures whatever (r/). (n) Freeman v. Jeffries, L. R., 4 Ex. 189. (o) Elliott V. Bisfiop, 10 Excli. 496 ; 11 Excli. 113 ; 24 L. J., Ex. 33 ; Burt v. Hasleft, 18 C. B. 162, 893. (p) Ante, 682. iq) Leader v. Jfumcicood, o C. B. . N. S. 546 ; 27 L. J., C. P. 316. Sect. 9. — Survey and Valuation of Dilapidations, etc. 689 The surveyor is to be paid according to his hibour, and not accord- ing to the amount of bills he looks over, or the amount of money exj^ended, or to be expended (?') ; although a commission of 5 per cent, on the sum laid out, when such was proved to be the usage, has been allowed (s). If a surveyor make an estimate, which turns out to be incorrect to a considerable amount, and consequently entirely useless, through his omitting to take reasonable precaution in forming his judgment, he is not entitled to recover anything for his plans, specifications or estimates made for the work (t) ; but this is a dangerous ground of defence, it being a question for the jury whether the work done was of any use, or value to the defendant (»). It is frequently better to pay the sum demanded (as agreed) and afterwards bring a cross-action for the negligence and want of due care and skill. Where in making the valuation the surveyor acts as an appraiser within the meaning of 46 Geo. 3, c. 43, and 8 & 9 Vict, c. 76, by which latter an annual duty of two pounds is imposed, he cannot recover his charges unless duly licensed as an appraiser or as an auctioneer (j) or house agent {i/). " The customary fee for estimating dilapidations is five per cent. upon the estimate, but not less than two guineas, exclusive of travel- ling expenses, time in going to distant parts, and ultimate trouble. An umpire sometimes charges five guineas a day " (z). Ch. XVI.s. 9. Survey and Valuation of Dilapidations, Surveyor's Remunera- tion. Customary Fee. (7-) Upsdell V. Stewart, Peake, 193 ; 3 R. R. 685. (s) Chapman v. De Tastet, 2 Stark. 291 ; 19 R. R. 625 ; Malthj v. Vhristie, 1 Esp. 340. {t) iloncypenny v. Hartland, 1 C. & P. 352 ; 2 Id. 378 ; Wliitty v. Ld. Dillon, 2 F. & F. 67. {u) Farnsivortli v. Garrard, 1 Camp. 38 ; 10 R. R. 624 ; Braccy v. Carter, 12 A. & E. 373. {x) Palk Y. Force, 12 Q. B. 660. {y) 24 & 25 Vict. c. 21. {z) Tarbuck"s Handbook of House Pro- perty, 2nd ed., p. 85 (a.d. 1880). L.T. 44 ( 690 ) CHAPTEK XVII. OKDINAKY PARTICULAR COVENANTS. Sect. page 1. Insurance against Fire 690 (a) Liability in case of Fire 690 (b) Covenant to Insure 690 2. Notto Assign, &c.,withoutLicence 694 (a) Covenants against 694 (b) Licence to Assign or Sub-let 696 (c) Breach of Contract not to assign, etc 699 (d) Forfeiture and Waiver of Forfeiture 703 3. For Residence on the Premises... 703 Sect. page 4. Against Particular User 704 5. For Particular User 712 6. Sole dealing with Landlord of "Tied House" 715 7. Re-Delivery of Fixtures, Goods, part of the Land, &c 717 8. For Quiet Enjoyment 718 (a) Possession Essential 718 (b) Implied 718 (c) Express 720 9. Covenants in Leases of Flats 728 Accidental Fire. Building Act, s. 86. Usual Form of Covenant to Insure, &c. Sect. 1. — Insurance against Fire. (a) Liability in case of Fire. At common law tenants were not answerable to their land- lords for accidental or negligent burning, and b}' tlie Building Act, 14 Geo. 3, c. 78, s. 86, no action may be maintained against any person in whose house, any fire shall accidentally begin, nor shall any recompense be made by such person for any damage suffered thereby; provided "that no contract or agreement made between landlord and tenant shall be hereby defeated or made void." This enactment is not, like the greater part of the statute in which it is contained, of a local and personal nature, or confined to the metropolis, but extends to the whole kingdom (o). It does not apply where the fire is lighted intentionally, and mischief results to a neighbour: nor where the fire is produced by negligence (b), nor will it affect any express covenant or agreement to rei^air, &c., because of the proviso above mentioned. (b) Covenant to Insure. Leases of premises comprising houses or other buildings, fre- quentlv contain a covenant on the part of the lessee, to insure the demised buildings to the full value, or some proportion thereof, or to not less than a fixed amount, in an insurance office to be approved by the lessor, either in the joint names of the lessor and lessee, or in the name of the lessor or of the lessee ; and (rt) Ex parte Goreley, In re Barker, 34 L. J., Bkt. 1 ; 10 Jur., N. S. 1085. See also Filliter v. Phippard, 11 Q. B. 355. {h) Filliter v. Phippard, 11 Q. B. 355 ; Vaughan v. Taff Vale R. Co. (in error), 5 H. &N. 679. Sect. 1. — Insueance against Fiee. 691 to keep the same so insured during the term: and to produce Ch.XVII. s.l. the i3oliey and show the receipt for the premium for the current Covenant , to Insure. year to the lessor or his agent on request (c) ; and to hiy out and expend all insurance monies received in rebuilding or repairing the demised premises as may be necessary. Usually it is further stii)ulated that if the insurance monies received prove insufficient, the tenant is to make up the deficienc}' out of his own mone}' — a stipulation rather severe upon the tenant, especially in the cases where the landlord nominates the insurance office — and sometimes that if the tenant omit to insure, the landlord may do it, and recover the amount paid, by distress or otherwise, as for rent in arrear, a stipulation which, looking to the very great loss against which insurance is intended to provide, and the very slight amount of the premium for insurance, apj^ears quite reasonable. A polic}' of fire insurance is a contract of indemnity, and upon PoHcy of payment of the amount of loss, the insurer is entitled to be put into Insurance is the place of the assured. If, therefore, a landlord insure against a ludemnity. loss (such as bv explosion covered bj' a covenant of the tenant to Dan-ell v. • •" ■ n n 111-1 Tihhits. repair contammg an exception for fire only), and the demised premises being damaged by gas, the tenant reinstates them in pursuance of the covenant, the insurers can recover the insurance money back from the landlord {d). The 83rd section of the Building Act, 14 Geo. 3, c. 78, provides 14 Geo. 3, for the application of insurance money to rebuilding as follows : — ^' '°' ^' ^^' Laying out of In order to deter ill-minded persons from wilfully setting their house Insurance or houses or other buildings on fire, with a view of gaining to themselves p^°,"^T }}^ the insurance money, whereby the lives and fortunes of many families may °" be lost or endangered, Be it enacted that it shall and may be lawful to and for the respective governors or directors of the several insurance offices for insuring houses or other buildings against fire, and they are hereby authorized and required iqjoii the request of any 'person or j^o'sons interested in or entitled unto any house or houses or other building which may be burnt down, demolished or damaged by fire, or (without such request) upon any grounds of suspicion that the owner or owners, occupier or occupiers, or any person or persons who shall have insured such house or houses or other buildings, shall have been guilty of fraud, or of wilfully setting their house or houses or other buildings on fire, to cause the insurance money to be laid out and expended, as far as the same will go, towards rebuilding, reinstating or repairing such house or houses or other buildings so bui-nt down, demolished or damaged by fire ; unless the party or parties claiming sucli insurance money shall within sixty days next after his, her or their claim is adjusted, give a sufficient security to the governors or directors of such insurance office, that the same insurance money shall be laid out and expended as aforesaid ; or unless the said insurance money shall be, in that time, settled and disposed of, to and (c) Poiniall v. Harbornc, 11 Q. B. 368. 50 L. J., Q. B. 33 ; 42 L. T. 797 ; 29 (d) Darrell v. Tibhits, 5 Q. B. D. 560 ; W. R. 66— C. A. 44—2 692 Chap. XYIL — Ordinary Particular Covenants. Ch.XVII.s.I. Covenant to Insure. Laying out Insurance Money in Rebuilding. Covenant to Insure runs witli Land. l^reach of Covenant to Insure is committed Ijy failure to Insure for ever so sliort a Time. amongst all the contending parties, to the satisfaction and approbation of such governors or directors of such insurance office respectively. This enactment is still in force {e). It is not limited to the metropolitan district, but is applicable to the whole kingdom (/). To entitle a landlord or other owner to the benefit of it, he must make a distinct request to the insurance oflfice to apply the policy money in rebuilding, before they have settled with the tenant insuring ; and in no case is the landlord or owner entitled to rebuild himself and claim the policy money {g). His remed}^ appears to be by a mandamus, after a sufficient request and refusal {(j). A tenant seems to be clearly included in the words " person interested " {h). A tenant from year to year insuring is not limited in his claim on the insurance company to the extent of his interest in the propert}' insured (r/). Trade fixtures put up by a tenant and removable by him are not within the words " houses or other buildings," as used in this section (i). A purchaser of property insured for does not, by the mere fact of purchase, acquire a right to the insurance monies (A). And where a fire policy has been assigned, the insurers, in the absence of express contract to do so, are not bound upon the application of the assignee to jiay him upon the policy {I). The covenant to insure seems to be a covenant that runs with the land (ro- under a covenant to insure in such office as the lessor or his assigns should direct, an assignee of the reversion cannot take advantage of a direction given by the lessor before assignment, which had not been obeyed, so as to work a forfeiture after the assignment, the lessee not having had notice of the assignment nor any direction from the assignee {n). Where a lessee has covenanted to insure and keep insured the buildings demised, or any part thereof, it will be a breach of the covenant if he permit them to remain uninsured, although it be only for a sliort period of time, and no fire or damage happen. Thus^ where a lessee covenanted to keep premises insured, and omitted to pay the premium till after the expiration of fifteen da^'S beyond the year, but at the end of the month he paid the premium, which was accepted by the compan}', as reviving the insurance from the former year ; it was held, that the covenant was broken, the premises {k) Pouh V. Adams, 33 L. J., Ch. 639 ; 12 W. R. 683. {I) London Investment Co. v. Montcfiore, 9 L. T. 688. (m) See Vernon v. Smith, 5 B. & A. at p. 9, per Best, J. And see ante, 174 ; 24 R. R. 527. {n) Crane v. Batten, 2 Com. L. R. 1696 ; 23 L. J.. Q. B. 220. {c) 18 & 19 Vict. c. 122, s. 109. (/) £x parte Goreley, In re Barker, 34 L. J., Bkt. 1 ; 10 Jur., N. S. 1085. {g) Sinipsoii v. Scottish Union Insurance Co., 1 H. & M. 618 ; 32 L. J., Ch. 329. {h) See ante, 438, where the effect of the enactment upon the rule of Leeds v. Chcetham, 1 Sim. 146, is noticed. (i) Exiiartc Goreley, In re Barker, supra. Sect. 1. — Insurance against Fire. 693 having in fact remained uninsured from the expiration of the fifteen Ch.XVII.s.1. •da.ys to the time the premium was paid (o). But where a lessee, Covenant to having covenanted to keep 800L insured on the premises, effected ««<»^^ an insurance containing a memorandum, that in case of the death of the insured the polic}' might he continued to his personal repre- sentative, provided an indorsement to that effect was made upon it within three months after his death, and died, and an indorsement continuing the polic}- to his personal rej)resentative was made after the expiration of the three months, it was held to be no breach of the covenant to insure {p). Where a lessee covenants to insure and teep insured the buildings demised, and to deposit the policy with the lessor, the covenant does not mean that he is to effect one policy and keep that policy on foot, but that the premises shall alwaj'S be kept insured by one policy or another : and it is a breach if they are uninsured at any one time, and a continuing breach for any portion of the time they are uninsured {q). A purchaser of a leasehold may object to the vendor's title on the Objection to ground that he has incurred a forfeiture b}^ omitting for the space of iiismance a month to pa}^ the annual ijremium of insurance pursuant to his covenant, although it does not appear that the lessor has taken advantage of the forfeiture (/•)• But a defect of this sort may some- times be i^rovided against b}' a special condition of sale(s). The breach of a covenant to insure is a continuing breach. Coutimiing Where there was a covenant to insure and continue insured the ^^^^'^ • premises in the joint names of the lessor and the lessee, but the Giadwin. lessee effected an insurance in his own name alone, and showed the policy to the lessor, who approved of it, and afterwards accepted rent ; it was held, that there was a continuing breach of the covenant, and that the acceptance of rent waived the previous breaches only [t). A breach of covenant is committed if the lessee covenants to insure the buildings from time to time and at all times, and leaves a part uninsured for two months after the execution of the lease, or even less (m) ; although the greater part of the premises were already insured at the requisite amount by a policy expiring at the end of two months, and on its expiration a new policy was effected covering all the premises, which were then insured at the stipulated amount (r). So, where there was a covenant by the tenant to insure in the names (o) Doc d. put V. Shcicin, 3 Camp. 134 ; Palmer v. Goscn, 25 L. J., Cli. 841. Wilson V. Wilson, 14 C. B. 616 ; 23 L. J., (s) Howell v. Kiglitley, 8 De Gex, M. & €. P. 137 ; Doc d. Darlington v. Ulyh, 13 G. 325 ; 25 L. ,T., Ch. 864. Q. B. 204 ; 18 Id. 106. (0 Doe d. Muston v. Gladwin, 6 Q, B. (i>) hoe d. Pitt V. Laminij, 4 Camp. 73. 953 ; Cole Ejec. 429. {q) Doc d. Floivcr v. Peck, 1 B. & A. («) Pe7iniallv. RarhorncUQ. B. 368; 428 ; Hyde v. Watts, 12 M. & ^V. 254; Doc d. Darlington v. Ulph, 13 Q. B. 204 ; 1 D. & L. 479 ; Doc d. Baker v. Jones, 5 18 L. J., Q. B. 106. Exch. 498 ; Cole Ejec. 429. (y) Pcnniallv. Harhorne, supra. (/•) Wilson V. Wilson, 14 C. B. 616 ; 694 Chap. XVII. — Oedinary Particular Covenants. Ch.XVII.s.I. Covenant to Insure. Action against Sub-lessee. Relief against Forfeiture for Non- insurance. of three lessors and the insurance was made in their names jointly with the tenant, it was held a hreach of the covenant (.r). Where the lessee was to insure, with a proviso that if he did not the lessor might, it was held, that the lessor could not recover in ejectment for a forfeiture, if hy his conduct he had led the lessee to believe the premises were insured by himself (?/). Where the performance of a covenant to insure in a sub-lease did not necessarily include a performance of the corresponding covenant in the original lease, and the premises were uninsured, and the original lessor entered for breach of the covenant to insure, and there was no general covenant in the sub-lease to indemnify against the covenants in the original lease, the lessee failed to recover against the sub-lessee damages for the term which he had lost by the non-insurance {z). Relief against forfeiture for non-insurance, formerly j)rovided for by the Law of Property Amendment Act, 1859, 22 & 23 Vict. c. 35, sects. 4, 5, 6, and 9, and s. 2 of the Common Law Procedure Act, 1860, is now regulated by s. 14 of the Conveyancing Act, 1881 (set out ante, Chap. VIII., Sect. 6 (b)), which repeals the above sections, and also sects. 7 and 8 of the Act of 1859, by which the lessor obtained the benefit of an informal insurance, and the purchaser of a lease was protected from forfeiture for non-insurance. Such Covenants not common and usual. Church V. Brown. Whether Licence must be in writinji. Sect. 2. — Xot to Assign or Sith-let without Licence. (a) Covenants and Conditions against. It seems to be settled, although there were some early decisions to the contrary («), that under an agreement for a lease "with common and usual covenants " the lessor is not entitled to have a covenant inserted not to assign or sub-let Avithout his licence (h). Even an agreement for a lease to contain a covenant not to sub-let and to hold on other covenants of a ground lease which contained a proviso for re-entry on breach of covenants generally, but did not contain a covenant not to sub-let, has been held not to entitle the lessor to a proviso for re-entry on breach of the covenant not to sub-let (c) . A covenant or proviso that the lessee shall not set, let, or assign over the whole or part of the premises without leave in writing, will {x) See note (v) on p. 693. Co. v. Isaac, 3 Jur., N. S. 611, Wood, [y) Doe d. Pitman v. ,Sutton, 9 C. & P. 706 ; Cole Ejec. 430. (~) Logan \. Hall, 4 C. B. .598. (rt) Morgan v. Slaughter, 1 Esp. 8 ; 5 R. R. 715 ; Folkingham v. Croft, 3 Anst. 700 ; 4 R. R. 844 ; and see Haberdashers' Co. V. y.-c. {h) Hawjishire v. Wickens, 7 Ch. D. 555, and 129, ante ; Church v. Brown, 15 Yes. 258, 271 : 10 R. R. 74. (c) Graicleyx. I'ricc L. R., lOQ.B. 302; 33 L. T. 203 ; 23 W. R. 874. Sect. 2. — Not to Assign, etc., without Licence. 695 not be affected by an oral licence to let part(f?). But tbe licence need not be in writing, unless that be expressly required b}' the terms of the lease ; and if when a written licence is necessary, the lessor gives a parol licence on purpose to ensnare the lessee (and that can be proved), a court of equity will relieve on the ground of fraud (e), this being an exception to the general rule (/). Where lessees, holding with a covenant not to assign without written consent, sold their interest to a person who entered v/ith the consent of the lessor, but never took a formal assignment, it was held that no breach of the covenant had been committed {(/). If the vendor of a lease, in which there is a covenant not to assign without licence, contract to assign his interest, it is incum- bent on him, and not on the purchaser, to procure the lessor's licence for the assignment {h) ; although he seems not to be bound to take legal proceedings to obtain it (i). Where A. assigned to B. a lease of a farm from C, which contained a covenant not to assign without C.'s consent, and B. agreed to assign the lease to D.'s nominee, D. to pay the expenses of the assignment and 1801. on a certain day for the improvements and manure ; to take the crops at a valuation, and to have immediate possession ; it was held, that to support an action on this agreement, B. must show that he had obtained C.'s consent to the assignment, though D. had taken possession of the premises, had cut down the crops, and had paid part of the 180L to B. (A). Where in an agreement for a sub-lease it was provided that the sub-lease should contain the like conditions and stipulations as were contained in the original lease, and the original lease contained a covenant not to assign without the lessor's consent, it was held that the sub-lessor's consent was the consent to be required (/). The covenant not to assign or sub-let without licence seems to run with the land, so as to be binding on the assigns of the lessee (in). Ch.XVII. s.2. Cove)W)it not to Assign or Sub-let. A^endor must pi'ociire Licence. Agreement for Sub-lease. " Running with Laud, {d) Roc d. Gregson v. Harrison, 2 T. R. 425 ; 1 R. R. 513. (c) Richardson y. Evans, 3 Mad. 218. if) See Hill V. Barclay, 18 Ves. 56 ; 11 R. R. 147. (fj) West V. Dohh, L. R., 5 Q. B. 450 ; 39 L. J,, Q. B. 190 ; 23 L. T. 76 ; 18 W. R. 1167 (Ex. Ch.). (/t) Lloyd V. Crispe, 5 Taunt. 249 ; 14 R. R. 744 ; Mason v. Carder, 7 Taunt. 9 ; 17 R. R. 427 ; Barker v. Banks, 2 F. & F. 213 ; DavisY. Nisbctt, 10 C. B., N. S. 752 ; 31 L. J., C. P. 6. As to payment of rent upon an agree- ment for sub-lease, see Brook v. Flctclier, 37 L. T. 100. (i) Lchmann v. M^ Arthur, L. R., 3 Cb. 496 ; 16 L. T. 196 ; 15 W. R. 551. {k) Mason v. Cmxler, 7 Taunt. 9 ; 17 R. R. 427. {I) Williamsmi v. Williamson, L. R., 9 Ch. 729 ; 43 L. J., Ch. 738 ; 31 L. T. 291, C. A. ; approved and distinguished in lIa>iv:ood v. Silher, 80 Ch. D. 404 : 54 L. T. 108; 34 AV. R. 104, C. A., in wliich it was held that on a contract for a sub-lease, to contain all usual covenants, including a covenant not to assign without the consent of the sub-lessor, together with the covenants in the original lease (one of which was that the lessee would not assign witiiout the consent of the lessors), the sub-lessee was bound to submit to the insertion of a covenant not to assign without the head-lessor's consent, — so that two consents would have to be required. (hi) Williams v. Earlc, L. R., 3 Q. B. 739 ; 37 L. J., Q. B. 231. But see West 696 Chap. XVII. — Oedinaky Particular Covenants. Ch.XVII. S.2. Covenant not to Assign or Sub-let. Dumpor'scase. 22 & 23 Vict. c. 35, s. 1. Licence to Assign or Sub-let extends only to Pel-mission actually given. Licence as to part to one Co-lessee, is not Licence to other Co- lessees. (b) Licence to Assign or Suh-let. The unreasonable doctrine' of Diimpor's case, that a licence to assign or sub-let operated as a total waiver of the condition against assigning, or sub-letting, such condition being considered as an entire thing, not capable of being waived or released as to part only («), was never overruled. It was, however, abrogated b}" the Law of Property Amendment Act, 1859, 22 & 23 Vict. c. 35, which, it will be observed, applies to all kinds of licence. By sect. 1 of this act — Where any licence to do any act Avhich without such licence would create a forfeiture, or give a right to re-enter, under a condition or power reserved in any lease heretofore granted or to be hereafter granted, shall at any time after the passing of this act be given to any lessee or his assigns, every such licence shall, unless otherwise expressed, extend only to the permission actually given, or to any specific breach of any proviso or covenant made or to be made, or to the actvial assignment, underlease, or other matter thereby specifically authorized to be done, but not so as to prevent any proceeding for any subsequent breach (unless otherwise specified in such licence) ; and all rights imder covenants and powers of forfeiture and re-entry in the lease contained shall remain in full force and virtue, and shall be available as against any subsequent breach of covenant or condition, assignment, under-lease, or other matter not specifi- cally authorized or made dispunishable b}^ such licence, in the same manner as if no such licence had been given ; and the condition or right of re-entry shall be and remain in all respects as if such licence had not been given, except in respect of the particular matter authorized to be done. For the extension of the principle of this enactment to waiver, see Act of 1860, s. 6, p. 703, post. The 2nd section of the Act of 1859 provides that a licence given to one co-lessee to assign or under-let part only of the demised property is to operate as a licence to such co-lessee only, and is as follows : — Where in any lease heretofore granted or to be hereafter granted there is or shall be a power or condition of re-entry on assigning or under- letting or doing any other specified act without licence, and a licence at any time after the passing of this act shall be given to one of several lessees or co-owners to assign or under-let part only of the property, or to do any other such act as aforesaid in respect of part only of such property, such licence shall not operate to destroy or extinguish the right of re-entry in case of any breach of the covenant or condition by the co-lessee or co-lessees, or owner or owners, of the other shares or interests, in the property, or by the lessee or owner of the rest of the property (as the case may be), over or in respect of such shares or interests or remaining property, but such right of re-entry shall remain in full force over or in respect of the shares or interest or property not the subject of such licence. I v. Dohh, L. R., 4 Q. B. 634; and 175, ante, as to whether assigns are bound if not named. As to leases after Conv. Act, 1881, see s. 58 of that Act, p. 177, ante. (h) Dii,mpor''s case, 4 Co. R. 119 b ; 1 Smith, L. C. Sect. 2. — Not to Assign, etc, without Licence. 697 This section has not much operation in practice, severance of the term is stated at p. 275, ante. The effect of a In recent times the covenant frequently takes the qualified form that the lessees will not assign without the consent of the lessor, "such consent not to be unreasonahl}' withheld." Where the covenant was not to assign without consent, " such consent not being arbitrarily withheld," it was held, that the effect of these words was not to give the lessee a right of action for an arbitrary refusal of consent, but merely to allow him, in case of an arbitrar}' refusal, to assign without consent. And in the same case the majority of the court intimated that a refusal grounded on an expectation that the property would be required by a public body under the Lands Clauses Consolidation Act was not arbitrary (o). In a subsequent case, where the qualification was, that the consent was not to be " unreasonably refused, or refused to a person of responsibility and respectability," the court held that under the circumstances the lessors were justified in refusing consent to an assignment of a lease to a corporation for objects other than those for which the lease had been granted (p). It has been said too, that where, as it very commonly does, the lease stipulates that consent shall not be withheld from an assignment or under-lease to a respectable and responsible tenant, and an assignee orunder-lessee is in fact respectable and responsible, there isno breach by an assignment or under-lease without consent obtained (q), or even without consent asked (;■)• But the Court of Appeal was of the contrary opinion in the carefully considered case of Barrow v. Isaacs, in which a landlord ejected a tenant for forfeiture in sub-letting to a tenant of undeniable respectability' (s). The withholding of a licence which was " not to be unreasonably •withheld in the case of any respectable or responsible person who might be the i:>roposed assignee " was held in Bates v. Donaldson if) to be unreasonable where it was caused b}' the desire of the lessee to obtain possession of the premises for himself. AVhere the consent is not to be withheld, except on reasonable objection, it has been said, that if the rent be large, strong reason Ch.XVII.s. 2. Covenant not to Assign or Suh-lat. Qualified Form of Covenant not to Assign. " Arbitrary" refusal of Consent. Trcloar v. Bigge. Assignment to Corporation. Stipulation against with- holding con- sent to Assignment to responsible Tenant. Hyde v. Warden. Refusal because lessor desires possession. Bates V. Donaldson. (o) Trcloar v. Biggc, L. R., 9 Ex. 151 ; 43 L. J., Ex. 9.5 ; 22 \V. R. 843 ; followed with approval by Hall, Y.-C, in Scar v. House Pro2)crty and Investment Societii, 16 Ch. D. 387; 50 L. J., Ch. 77; 43 _ L. T. .')31 ; 29 W. R. 192, in wliich the "ivords were "but such con.sent not to be unreasonably withheld." (_/;) Harrisony. Barroi»in-FurnessCor- I)oration, 63 L. T. 834 ; 39 W. R. 250, per Romer, J. (g) Hyde v. Warden, 3 Ex. D. at p. 81— C. A. (r) Per Huddleston, B., in Burford v. Umi)in, C. & E. 494. (s) Barroio v. Isaacs. [1891] 1 Q. B. 417 ; 60 L. J., Q. B. 179 ; 64 L. T. 686 ; 39 W. R. 338— C. A. it) Bates V. Donaldson, [1896] 2 Q. B. 241 ; 65 L. J., Q. B. 578 ; 74 L. T. 651 ; 44 W. R. 659 ; 60 J. P. 596— C. A. 698 Chap. XVII. — Okdinary Particular Covenants. Ch.XVII.s. 2. Covenant not to Assign or Sub-let. Pecuniary Consideration for Licence. Prohibition of Fine for Licence, by Conv. Act, 1892, Sect. 3. Ls this Prohibition Retrospective? " Fine" does not include money required to be deposited as security. Cosh's Contract, In re. should be shown for the refusal, in view of the heavy burden of rent upon the lessee {u). The very serious question whether a pecuniary consideration can be required for tlie licence does not appear to have been considered by the courts, nor does the risk of such consideration being required appear to have been expressly guarded against in the precedents of conveyancers. It is believed that a consideration is ver}^ seldom required in practice, but the question whether it is to be requirable is not one which ought to be left in uncertainty when the lease is being settled. Upon the covenant as framed in the unqitalified form, it is conceived that the requirement of a pecuniary considera- tion for the licence is perfectly legal, although it might perhaps be argued that only a reasonable, and not a prohibitory, consideration can be required (r). Now, however, the requirement of a fine is in ordinar}^ cases practically prohibited by s. 3 of the Conveyancing, &c.. Act, 1892, 55 & 56 Vict. c. 13, which is as follows : — In all leases containing a covenant, condition, or agreement against assigning, under-letting, or parting with the possession, or disposing of the land or property leased without licence or consent, such covenant, condi- tion, or agreement shall, unless the lease coyitains an ej:2^ress 2irovision to the contrai-y, be deemed to be subject to a proviso to the effect that no fine or sum of money in the nature of a fine shall be payable for or in respect of such licence or consent ; but this proviso shall not preclude the right to require the payment of a reasonable sum in respect of any legal or other expense incurred in relation to such licence or consent. It is conceived that this section is not retrospective, so as to apply to leases made before the passing of the Act, i.e., before the 20th June, 1892. The general rule is that statutes have not a retrospective operation (.r) ; there appears to be nothing in the section to take it out of the general rule, and the analogy of ss. 10 — 12 of the Con- veyancing Act, 1881 (ante, p. 267), with which the Act of 1892 is to be read, points in favour of a prospective operation only. The words " fine, or sum of money in the nature of a fine," mean money which is to go irrevocably into the pocket of the lessor, and do not include money deposited as security for the performance of an agreement and repayable by the lessor on agreement performed. This was held by the Court of Appeal in Cosh's Contract, In re 0/), where the lease was a building one granted under a building contract relating also to other property than that demised, and containing an (w) Shephcard v. Hong Kong, . & C. 308. (Z) Doc d. Boscaicen v. Bliss, 4 Taunt. 735 ; Doc d. Bryan v. Bancks, 4 B. & A. at p. 408 ; 23 R. R. at p. 323. 704 Chap. XVII. — Ordinary Particular Covenants. Ch.XVII. S.3, becomes forfeited upon his ceasing to occupy (m). Such a covenant Covenant j^^g jjggj^ recoffnized as a fair and proper covenant (w) : but it for Residence . . '^ . . on the certainly is not a common covenant or condition, except in agri- Premises. cultural leases. It runs with the land into whosesoever hands it comes ; and is therefore binding upon assigns, although they be not mentioned (o). Object of Covenant against particular Trades. Covenants against Trade run with the Land. How far " usual cove- nants." Sect. 4. — Against Particular User. In leases of houses in towns a covenant is frequentl}' inserted, to restrain the lessee from carrying on or permitting or suffering the premises to be used for carrying on obnoxious trades. The real object in all these cases is to prevent the lowering of the tenement in the scale of houses, by the exercise, wliether whoU}^ or partially, of those trades which, in the judgment of the lessor, are likely to [be a nuisance to the neighbourhood, or to] prevent tenants from afterwards taking the premises, and consequently depreciate their value at a future period (j>). Such covenants affect the occupier of the demised premises and run with the land so as to bind " assigns " not therein mentioned {q), or at all events so as to bind in equit}' assigns who have actual or constructive notice of them(/'). But a covenant by the lessor not to build a public-house within half a mile of the demised premises does not run with the land, and cannot be sued on by assignees of the lease (s). Any such covenant must be fortified by a proviso for re-entr}', otherwise the breach of it will not support an ejectment, but only an action for damages (0, or claim for a writ of injunction {u). Covenants in restraint of trade in a trading locality are not generally considered usual covenants (.r) ; but whether the}' are so or not is a question of fact, and where the defendant agreed to purchase the lease of a public-house described as held " under common and usual covenants," and the lease Avas found to contain a proviso for re-entry upon any business but that of a publican being carried on, the plaintiff' succeeded in enforcing the agreement upon evidence that the proviso for re-entr}- was inserted in at least {m) Doc d. Lockwood v. Clarke. 8 East, 185 ; 3 R. E. 430 ; see also Doc i^'. Duke, of Norfolk V. Hmokc, 2 East, 481. {n) Fonsonhy v. Adams, 2 Bro. F. C. 431. (o) Tatcm v. Chaplin, 2 H. Blac. 133 ; 3 R. R. 360 -; Scwcll, app., Taylor, resp., 7 C. B., N. S. 160. See ante, 173. ( jo) See GaskcU v. Spry, 1 B. & A. 619 ; 19 R. R. 404. (q) Wilkinson v. Rogers, 2 De Gex, J. k S. 62 ; 12 \V. R. 119, 284. (»•) Jaij V. Richardson, 30 Beav. 563 ; Wilson v. Hart, L. R. . 1 Ch. App. 463 ; 13 \\. R. 988 ; Cati v. Tourlc, L. R., 4 Ch. App. 654 ; 38 L. J., Ch. 655. (•s) Thomas v. Ha^jxoard, L. R., 4 Ex. 311 ; 38 L. J., Ex. 175 ; 20 L. T. 814. if) Cole Ejec. 432. \%i) See Wilson v. JTart and Catt v. Tourlc. supra. (x) Wilbraham v. Livcsey, 18 Beav. 206 ; Frobcrt v. Parker, 3 Myl. & K. 280, and see 128, ante. Sect. 4. — Against Particular User. 705 six out of ten leases of public-liouses (ij). A person agreed to take Ch. XVII. s. 4. land for ninety years at a certain rent, and to build glass-houses, Covenant ■ " . o ' against and not to use the premises for an}' other purpose than a glass Fartkular manufactory; it \vas held, that this agreement did not warrant the ^^^' insertion of a covenant in the lease, compelling the tenant to cafry on the business of a glass manufacturer during the whole term (z). A promise cannot be implied, from the mere fact of a lessee having entered into an agreement for a sub-tenancy, that he had power to let " without restriction as to the purposes for which the premises should be used " (a). A lease made for the express purpose of using the premises to Illegal boil oil and tar, contrary to the provisions of the Building Act (25 Geo. 3, c. 77), was held void, though the intended use of the premises was not mentioned in the lease (b). So where a house is knowingly let or assigned for the purposes of a brothel, although it contains an express covenant not to use it as a brothel (c). Where A. procured B. to grant him a lease of premises, by means of a false rej)resentation that he intended to carry on a certain lawful trade therein, and having obtained possession, converted the premises into a common brothel, whereupon B. forcibly expelled him ; it was held, that A. might maintain ejectment : the fraudulent misrepresentation and the subsequent illegal use of the premises not being sufficient at law to avoid the lease (d). The erection of wooden hoardings for tbe purpose of advertise- Advertise- ment is a breach of a covenant not to " erect or make an}' building ™^^ ^' or erection on any part of the demised premises " (e) ; but the exhibition of a large advertisement across the front of the demised premises is not a breach of a covenant not to do anything which may grow to the injury, annoyance, disturbance or inconvenience of the landlord ( /) . The putting up of a blind in a window with tbe words " A. B. Coal Covenant Office," is a breach of a covenant to use the house as a private House, dwelling-house only (g), and putting up a similar blind or brass plate is a breach of covenant not "to affix any outward mark or show of business" (li). The covenant to use as a private dwelling-house only is also broken by the erection of a studio "with necessary (?/) Bennett v. Womack, 3 C. & P. 96 ; 7 [d) Fcrct v. Hill, 15 C. B. 207 ; and see B. & C. 627 ; 6 L. J., K. B. 175 ; 31 E. R. E., B. & E. 814, 815. 270. (c) Pocock V. Gilham, C. & E. 104, per [z] Doc d. Marquis of Bute v. Guest, 15 Mathew, J. M. & W. 160. (/) Our Boijs Clothing Co. v. Hottorn {a) Jackson v. Cobbin, 8 M. & W. 790 ; Viaduct Land Co., 12 T. Lr R. 344, per 1 Dowl., N. S. 96. Romer, J. (b) Gaslight Co. v. Turner, 5 Bing. {g) Wilkinson v. Rogers, 12 W. R. 119, N. C. 656 ; 6 Id. 324. per Romilly, M.R. ; and see post, 708. (c) Smith V. White, L. R., 1 Eq. 626 ; (A) Evans v. Davis, 10 Ch. D. 747 ; 48 35 L. J., Ch. 454. L. J., Ch. 223 ; 39 L. T. 391 ; 27 W. R. 285. L.T. 45 706 Chap. XVII. — Ordinary Particular Covenants. .Ch.XVII.s. 4. Covenant against Particular User. Occupation of Shop during business hours only. Lodging house. Lessee bound by restrictive Covenants of Lessor. Fieldcn v. , Slater, 'Sub-lessee bound by Restrictive Covenants of Head Landlord. rooms connected therewith " in the garden (/), but not by a sale by auction of the furniture of the house (Ji). A covenant that no buiklings except dwelling-houses shall be built on land, has been held broken by the erection of a wall(^), but not by the erection of a stable with a bedroom over it (;;;)• Though the letting be merely for a day-time occupation, there is no liabilitj^ upon the landlord to guard the premises dui'ing the night. This was ruled by Cave, J., in a case where a shop in an arcade was let for occupation during the business hours only, of a jeweller tenant, and thieves broke in during the night and stole jewellery («), and the principle of the ruling would seem to apply however unprotected the demised premises may be. We have seen (ante, 699) to what extent the letting of lodgings is a breach of a covenant not to sub-let ; it does not seem to be settled by an}' case how far such a letting is a breach of a covenant not to exercise a business, &c., but it is submitted that although much may often depend on the wording of a covenant and the particular facts, the majority of covenants against business, &c., would be so construed to bar the letting of lodgings as ordinarily ctirried on. " Constructive notice " may bind the lessee by the restrictive covenants of his lessor, although he has no actual knowledge of them. Thus, where a house w-as granted to B. in fee, and A. covenanted with the grantor that he would not use it " as an inn, public-house, or tap-room, or for the sale of spirituous liquors or beer," and afterwards demised the house to B., who sold Avine and spirits in bottle as a grocer, it w'as held, that though B. had no knowledge of A.'s covenant with the grantor he was put upon inquiry, was fixed with constructive notice of the covenant, and ■could be restrained by injunction from selling spirits {o). And in -one case Jessel, M.E., went so far as to sa}' that even an express representation by a lessor that there were no restrictive covenants affecting the demised property would not do away with the effect of " constructive notice " (^j). On similar principles, it has been held that a sub-lessee is bound by the restrictive covenants entered into by a head landlord when he purchased the freehold, although neither the mesne landlord nor the sub-lessee has actual notice of them {q); but the sub-lessee is (i) Patmanv. ffarland, 17 Ch. D. 353 ; 50 L. J,, Ch. 642 ; 44 L. T. 728 ; 29 "W. R. 707, per Jessel, M.R., who said how- ever that "a fair and reasonable adjunct" might be erected. (k) Reeves v. Cattcll, 24 W. R. 485. (/) Bowes V. Law, L. R., 9 Eq. 636 ; 39 L. J., Ch. 433 ; 22 L. T. 267 ; 18 W. R. 640. (Damages only awarded, as no sub- stantial injury.) (m) FmsscHy. Baher, 18 W. R. 1021. {n) Espir v. Todd, 1 C. & E. 154. (o) Fielden v. Slater, L. R. , 7 Eq. 523 ; 38 L. J., Ch. 379 ; 20 L. T. 112 ; 17 W. K. 485. {})) Patmanv. Harland, 17 Ch. D. at p. 356. See also Nicoll v. Jenning, 30 W. R. 95. {q) Thorncicell\. Johnson, 50 L. J., Ch. 641 ; 44 L. T. 768. II Sect. 4. — Against Particular User. 707 not bound to take active steps to compel the enforcement of a Ch. XYII.s. 4. restrictive covenant, as was held in Hallx. Ewi)i (r), which has been Covoumt - ,• 1 against alread,y noticed. Fartwular In Spiccr v. Martin (s), Spicer had acquired the fee of a block of ^^^''' houses in Cromwell Eoad from the Exhibition Commissioners by Restrictive ^ . . J 1 1 • , IT Covenant as conveyances contannng covenants by hmi to use the houses as to one of a private dwelling-houses onlv. He let one of the houses to Martin Wock of . . " . . . . houses. b}' a long lease containing a snnilar restrictive covenant, after spicerv. informing Martin that the other houses were let by leases containing -^^artin. (as the fact was) similar restrictive covenants. Martin, being informed that the other houses were about to be sold by Spicer for an hotel, sued Spicer and the intending purchasers, and the House of Lords held that he could restrain Spicer from authorizing an}^ of the houses being used for the purposes of trade (s). A covenant in a lease, that the lessee shall not exercise the trade Covenant of a butcher upon the premises, is broken by selling there raw meat of Butcher? ° by retail, although no beasts are slaughtered (t) . So a covenant not to cany on the business of a pork-butcher on the demised premises, nor to use them for the sale of pork, is broken by the exposure there of carcases of pigs for sale, although such carcases are cut up and contracts for the sale thereof completed elsewhere in the neighbourhood (no- where a lessee of a house and garden covenanted with the lessor School, not to use or exercise, or permit or suffer to be used or exercised, upon the demised premises, or any part thereof, any trade or business whatsoever, &c., without the licence of the lessor, &c., and afterwards, without the licence of the lessor, assigned the lease to a schoolmaster, who carried on his business in the house and premises ; it was hekl that such assignment was a breach of the covenant (i'). But a school has been held not to be a nuisance within the meaning of a general covenant against nuisances (?/). A covenant not to carry on " any public business " in a house, but that it should "be used solely as a private dwelling-house," is broken by using it as a day-school and dancing academj-, notwithstanding that the next-door neighbours make no complaints (z), and in German v. Chapman (a) it was held b}' the Court of Appeal that a German v. Chapman. (r) Hall V. Elfin, 37 Ch. D. 74, and 277, 95 ; 14 R. R. 405 ; Kcmj) v. Sober, 1 Sim., ante. X. S. 517. (s) Spiccr Y. Martin, 14 App. Cas. 12; {y) Harrison v. Good, L. R., 11 En. 58 L. J., Ch. 589 ; 60 L. T. 546 ; 37 W. R. 338 ; 40 L. J.. Ch. 294 ; 24 L. T. 263 ; 19 689, affirming 34 Ch. D. 1— C. A., and W. R. 346. approvingpriuciples defined by Hall, Y.-C, (c) JVickendcii v. Webster, Q E. & B. in Benalsv. Cowlishaiv, 9 Ch.'l). ati). 129 ; 387 ; Johnstone v. Hall, 3 K. & J. 414; and applied in Hudson v. Cripps, [1896] 25 L. J., Ch. 462. 1 Ch. 265, and p. 728, post. («) German v. Chapman, 7 Ch. D. 271 ; (t) Doe V. Sj^ry, 1 B. & A. 617. 47 L. J., Ch. 250 ; 37 L. T. 685 ; 26 W. R. (u) Doe V. Elsam, Moo. k M. 189. 149 — C. A., reversing decision of Bacon, (a;) Z'ocd. Bish v. Keeling, 1 M. & S. V.-C, 37 L. T. 265. 45 — 2 708 Chap. XYII. — Ordinary Particular Covenants. Cn.XVII.^.4. Covenant against Particular ■ User. Rolls V. Miller'. Hospital. User of Housi for Hospital. Shop. Wilkinson v. Pagers. covenant — of even date with a conveyance of sale — that no huilding to be erected on the four acre plot of land sold " should be used or occupied otherwise than as a private residence only, and not for any purpose of trade " was broken by the erection of a boarding-school large enough to accommodate 100 girls, but supported by voluntary contributions, being an " Institution for the Education of the Daughters of Missionaries." Hulls v. M\llcr {h),\\\ which the words were "trade or business," is to the like effect. A hospital, the patients of which make small payments according to their means, is a "business" within a covenant by lessee "not to carry on any trade, business or dealing whatsoever, or anything of the nature thereof" upon the demised premises (c). This was. held in a case where the hospital was a " throat and chest " hospital, and the covenant also contained the words, "or suffer any actor thing which may be or grow to the annoyance, damage, injury, prejudice, or inconvenience of the neighbouring premises," upon which words also there was held to have been a breach of the covenant, so that the case might be supported on another ground. In another case the covenant was not to carry on the business of a tallow-chandler and other special business, or any other noisome or offensive business, or suffer anything which should grow to the annoyance, nuisance, grievance, or damage of the lessor or the inhabitants of the neighbouring houses, and a hospital for the treat- ment of diseases of the nose, ear, skin, eye, fistula, and other diseases was held to come within these words {d), on the express ground that the question dej^ended on the construction of the latter part of the covenant, and that "annoyance" had a wider meaning than nuisance. In the same case it was held that pecuniary damage need not be made out, and that the words "neighbouring houses" were not confined to houses on the lessor's own estate {e). The user of a house for an hospital association, established with- out a view to profit, to provide accommodation for jjatients able and Avilling to pay for it, is an infringement of a covenant not to use the house for the exercise " or carrying on of any art, trade or business, occupation or calling" (/). In JJlllciiison v. Rotjcrs a lease of a house contained a covenant to use the house as a private dwelling-house only, provided that if any (&) llolls V. Miller, 27 Ch. D. 71 ; 53 L. J., Ch. 682 ; 50 L. T. 597 ; 32 W. K. 806— C. A. (Home for Workin£( Girls). And see Hobson v. TuUoch. ["1898] 1 Ch. ■ 424 : 67 L. J. , Ch. 205 ; 46 W. R. 331 (user as Ijoardiiig-hoase for scholars attending •bchool in neighbourhood kept by owner of house helil to convert house troui " private residence" to business of boarding-house), per Romer, J. (c) BramwcUv. Lacy, 10 Ch. D. 691 ; 48. L. J.. Ch. 339 ; 40 L. T. 361 ; 27 W. R. 463. id) Todhcatly v. Benham, 59 L. T. 28 ; 36 AV. R. 688, p?r Kekewich, J. (injunction not to be enforced for 6 months) ; atf. b}' C. A., 40 Ch. I). 88 ; (only 14 days further allowed). (e) lb. in C. A. If) Porimanx. Home HospiUds Associa- tion, 27 Ch. D. 81, n. ; 50 L. T. 599, per Jessel, M.R. d Sect. 4. — Against Particular .User'. 709 "Offeusive Trade." Business." adjoining house of the lessor should be " converted into a shop," the Ch. XVII.s.4. lessee might convert the demised premises to a similar use. The Covenant " '- p ^ against lessee used the house as a coal office and set up as a defence that an Particular adjoining house had been used for the exhibition of photographs, ^^^''' but without structural alteration. Romilly, M.R., granted an injunc- tion, being of opinion that structural alteration was essential to conversion into a shop so as to bring the proviso into force {g). The Court of Appeal dissolved it on the ground that no substantial injury was being done, but expressed the opinion that a house might without breach of covenant be converted into a shop by mere user as such without structural alteration {h). A lease containing a covenant not to carry on certain specified trades or businesses, or "any offensive trade," is not forfeited by using the premises as a private lunatic asylum (/) , or for the business of a licensed victualler (/i), or for the deposit of lucifer matches (/). Payment by inmates to the lessee is not essential to constitute a business ; nor does payment necessarily make that a business which without payment would not be a business {in). Carrying on the business of a " retail brewer " has been held to Eetailof Beer, he no breach of a covenant not to carry on the business of a common ' brewer or retailer of beer (n). More recently, a covenant made in 1854 not to use the trade or calling of a seller by retail of " wine, beer, spirits, or spirituous liquors," was held not to be broken — or at any rate broken so far as to justify an injunction {o) — by the sale of wine and spirits in bottle by a grocer, under an act passed in 1861 (24 & 25 Vict. c. 21), on the ground that, at the time the covenant was made, this would not have been a selling by retail ( j»). But in a still more recent case the lessee of a theatre at Stratford bought in 1880 land adjoining the theatre which was subject to a covenant that the trade of an inn-keeper, victualler, or retailer of wine, spirits, or beer should not be carried on there. On this land he erected a building which afforded convenient egress from the theatre, but on each floor of which he set up a counter for selling wine, spirits and beer. The counter could not be approached from the outside, but any person who paid for admittance to a play at the theatre could purchase relreshments thereat. The lessee of the theatre was restrained, at the suit of purchasers of other lots ((/) Wilkinson v. Rogers, 12 W. R. 119. (/() JFilkinson Y. Rogers, 2 De G., J. & S. 62 ; 12 W. R. 284. (0 Doe d. Wetherell v. Bird, 6 C. & P. 195 ; 2 A. & E. 101. [k) Jones v. Thome, 1 B. & C. 715. (I) Hickman v. Isaacs, 4 L. T. 285. Here the words were " noisome or offensive." (»i) Rolls V. Miller, 27 Cli. D. 71, ante, Farrcn, 1 Bins- N. C. note {b). (n) iiimons 126, 272. (o) See per Cotton, L.J., in Ruckle v. Fredericks, infra. (p) Jones V. Bone, L. R., 9 Eq. 674 ; 39 L. J., Ch. 405 ; 23 L. T. 304 ; 18 W. R. 489 ; distinguishing Fieldcn v. Slater, supra, 706. See also Pease v. Coats, L. R., 2 Eq. 688. 710 Chap. XVII. — Ordinaey Particulae Covenants. Ch. XVII. 8.4. Covenant against Particular User. Ketail of Beer, W and Spirits— cc/i<. Application of BeerActs,&c., to Licences prior thereto. " Yintner." Beer-slioji. Beer-liouse. Club. bought from the same vendors {q) ; and though the'] case is not strictly one on the relationship of landlord and tenant, it has a strong indirect bearing upon that relationship, and was followed in a landlord and tenant case in which the tenant covenanted not to use the demised premises as a coffee house, and carried on a business mainly consisting of the sale of tea and coft'ee in packets as groceries, but consisting also of the sale of cups of tea and coffee, with bread and butter, eggs, sandwiches, and pork pies, to be consumed on tbe premises (r) . It is expressly provided by statute that any covenant in a lease '' between any landlord and tenant " against the trade of a victualler or publican being carried on "in any house mentioned or com- prised " in the lease, or against the house being used as a "public- house or ale-house," shall apply to every person licensed to sell beer or cider under the Beer Act, 1830, 11 Geo. 4 & 1 W. 4, c. 64, s. 31, and likewise to every person licensed to sell wine to he con- sumed on the premises under the Refreshment Houses Act, 1860, 23 & 24 Vict. c. 27, s. 44. The expression "vintner" in such a covenant has been held to apply to a person selling wine not to be drunk on the premises (s). A covenant not to use a house as a heer-sltoji or public-house has been held to be broken b}^ the sale of beer not to he drunk on the jiremises (t), to which kind of sale, however, a covenant not to use a house as a heer-Jionse had previously been held not to extend (»), and has also subsequently been held not to extend (x). In construing a covenant not to carr}' on any offensive trade or business on premises demised, much will dej)end on the situation of the premises : and it is particularly worthy of consideration, whether such trade as that complained of Avas carried on there at the time of the demise ; for if it were, it could scarcely be thought to come within the covenant (?/). The sale of wines, Sec, in a working man's club to its members, where the rules provide for the purchase of liquor and its distribu- tion amongst members at fixed prices for consumption on the premises, is not a breach of a covenant that the premises shall not be used for the sale of wines, malt or spirituous liquors (z). The iq) BncMc v. Frederick.^ 44 Cli. D. 244 ; 62 L. T. 884 ; 38 W. E. 742— C. A. (r) Fitz V. lies, [1893] 1 Ch. 77 ; 62 L. J., Ch. 258 ; 68 L. T. 108 ; 2 R. 132— C. A. (s) Wells V. Atlenborouyh, 24 L. T. 312. (/,) St. Albans [Bishop of) v. Battcrshy, 3 Q. B. D. 359 : 47 L. j!. Q. B. 571 ; 38 L. r, 685 ; 26 W. 1!. 678 ; affirmed in London and Suburban Co. v. Field, C. A., 16 Ch. D. 645 ; 44 L. T. 444. («) London and North Western R. Co., V. Garnett, L. R., 9 Eq. 26 ; 39 L. J., Ch. 25 ; 21 L. T. 352 ; 18 W. E. 246. (r) Holt V. Collyer, 16 Ch. D. 718 ; 50 L. J., Ch. 311 ; 44 L. T. 211 ; 29 W. K. 502, per Fry, J. (V) Gutteridqe v. Maynard, 7 C. & P. 129, ]icr Tindal, C.J. (~) FMnkcn v. Hunt, 10 K. 249. Sect. 4. — Against Particular User. 711 playing of "cheiiiin de fer" in a club is a breach of an agreement by Ch. xyil.s.4. a lessee " not to permit games of baccarat, hazard, or roulette to be Covenant . '' . against played on the premises, but to use the same as a private club only. Particular and so to carry on the club as not to contravene an}^ laws of ^^^' the land for the time being in force {a). A covenant not to use otherwise than as a private club is broken b}' advertised boxing entertainments Qj). A covenant not to qqxvx on the business of a " ladies' outfitter" Business of would not be broken by carrying on a business in the course of fitting." which some of the articles the sale of which constitutes part of the business of a "ladies' outfitter" would be sold (c). If a lessee exercise a trade upon the demised premises, by which Waiver of his lease is forfeited, the landlord does not, by merely l3'ing by and witnessing the act for six j'ears, waive the forfeiture, some positive act of waiver being necessary ; but if he permit the tenant to expend money in improvements to adapt them to that trade, it would be evidence for the jur}' of his consent to their being so used(r/). If rent be received for twenty years, with full knowledge of the breach of covenant, and without any objection, a licence under seal may be presumed and found by the jury(c). Where there is a covenant against carrying on a particular trade without a written licence, the mere fact of the lessor's suffering the tenant to carry on one trade on the premises will not afterwards authorize his carrying on another without a written licence (/). A covenant not to carry on or suffer upon the demised premises Continuing during the term any specified trades or businesses, or any trade or business whatever, is a covenant of a continuing nature, and broken from day to da}^ so long as any prohibited trade or business is carried on (f/), but where a plumber was found to be in occupation of the demised premises, and the landlord had received two quarters' rent w^ith knowledge of the occupation, it was said that the waiver by receipt of rent must be taken to extend to some term, and that the plumber must be supposed to have had at least a tenanc}^ from year to 3'ear, so that an ejectment could not be sustained (/O- («) Fairtlough v. Whitmorc, 64 L. J., [c) Gibson v. Docg, 2 H. & IS^. 615 ; 27 Ch. 386 ; 72 L. T. 354 : 43 W. R. 421 ; 13 L. J., Ex. 37 ; Bridges v. Longman, 24 R. 402, per Stirling, J. Beav. 27. {h) Seaxvard v. Paterson, 13 T. L. R. (/) Macher v. Foundling Hospital, 1 525, per Xorth, J. V. & B. 188 : 23 & 24 Yict. c. 38, s. 6. (c) Stuart V. Diplock. 43 Ch. D. 343; [q] Doc A. Ambler v. Woodhridge,QB.k, 59 L. J., Ch. 142 ; 62 L. T. 333 ; 38 W. R. C. 376 ; Cole Ejec. 433. 223— C. A. {h) Griffin v. Tomkins, 42 L. T. 459 ; {d) Doe A. Shejopardr. Allen, 3 Taunt. see Walrond v. Hawkins, L. R., 10 C. P. 78 ; Doe d. Boscaicen v. Bliss, 4 Taunt. 42, ante, 345 [a), for the ratio decidendi of 735 ; Doe d. Bryan v. Bancks, 4 B, & A. this case. 401 ; 23 R. R. 318. 712 Chap. XVII. — Ordinary Particular Covenants. Ch.XVII.s.4. Covenant Farticular User. Covenant by- Landlord not to let Adjoin- ing House for similar Trade. Kemp V. Bird. Sale by Auction. Toleman v, Porthury. Erection of Screen. Stipulation in Farming Agi'eement to keep Farm . Stocked. Covenant to Work Mines. A covenant by a landlord of an eating-house not to let any house in the same street as the demised premises " for the purpose of carrying on the business of an eating-house " will not be construed to oblige the landlord to enforce a covenant by the lessee of an adjoining house not to carry on any business without the consent of the lessor, unless it be shown that the adjoining house was let with the intention of allowing the prohibited business to be carried on(i). A lease of a house in a town not unfrequently contains a covenant that, the lessee will not permit a sale by auction therein without the consent of the lessor. Such a covenant was held broken where the lessee gave a bill of sale on his goods, with power to the grantee to sell by auction in default of payment, although the lessee had mortgaged the house by a sub-lease, and executed a general assignment for the benefit of his creditors {k). A covenant to use a house as a private house only is not broken by a sale by auction of the furniture (/). The erection of a permanent ^vooden trellis-work screen is a breach of the lessee's covenant not to erect any building except a stable or coach-house, and also a breach of a covenant not to do anything which might be an annoyance to a tenant of the lessor {m). Sect. 5. — For Particular User. A stipulation by a tenant to keep on a farm a proper and sufficient stock of sheep, horses, and cattle will not be enforced by injunction (??), common covenants in husbandry not being the subject of equitable jurisdiction (o), unless some single act in violation of them be com- mitted, as if a tenant remove hay which he is bound to consume on the premises {p). An agreement to w^ork a mine as long as it is " fairl}^ workable," does not oblige the tenant to work it at a dead loss (g), nor does a covenant to "get the demised clay to the fullest practicable extent consistent with the means of sale of bricks and tiles to be derived therefrom," although a means of sale at an unremunerative rate might be found (r), but an agreement to work " in the most proper and effective manner " is broken by a cessation from working, although the dead rent be paid (s). '* Coal seams workable as coal (i) Kcm2) V. Bird, 5 Ch. D. 974 ; 46 L. J., Ch. 828 ; 37 L. T. 53 ; 25 W. R. 838 — C. A. (k) Toleman v. Porthury, L. E., 7 Q. B. 344 ; 41 L. J., Q. B. 98 ; 26 L. T. 292 ; 20 W. R. 441— Ex. Ch. {I) Reeves v. Galicll, 24 W. R. 485. {m) Wood V. Cooper, [1894] 3 Ch. 671 ; 63 L. J., Ch. 845; 71 L. T. 222; 43 "VV. R. 201 ; 8 R. 517, per Romer, J. (?i) -See PMyner v. Stone, 2 Eden, 128. (o) Phipjjn V. Jackson, 56 L. J., Ch. 550 ; 35 W. R. 378, per Stirling, J. (^j) See Phipps v. Jackson, supra. (q) Jones V. Shears, 7 C. & P. 346. (r) Newton v. Nock, 43 L. T. 197, per Denman, J. (s) Kinsman v. Jackson, 42 L. T. 80, affirmed lb. 558. The dictum of Malins, V.-C, in Wht-atley v. Brymbo Coed Co., L. R., 9 Eq. 538, that it is enough if the dead rent be paid, \voul(l seem not to be law. See per Jessel, M.R., 42 L. T. 558. Sect. 5. — For Particular User. 713 seams," means workable at a profit, including the coal and fire cla}-, Ch.XYII.s. 5. &c., to which the tenant is entitled (0- Where lessees of mines p^^Lto'' entered into an absolute unqualified covenant to get 2,000 tons of User. rock salt in each year during the continuance of the term, or pay Corenant to for the deficiency l held, that they were liable, whether the salt ^^°;,^;j^^™'' could be got easily or with difficulty, and that whether it existed at all was immaterial (w). So, where lessees of a mine had covenanted with all reasonable diligence to sink the shafts down to the salt : held, that they were bound to do so, although it might be an unreasonable application of time and labour (x). So, where the lessees of a mine covenanted to work it during the continuance of the term in a proper and workmanlike manner, it was held, that they must be taken to have covenanted to work the mine in some way, in as prudent and proper a manner as the}^ could under the circumstances, and therefore had no right to abandon the works altogether, notwithstanding that the mine was drowned by an influx of brine, which rendered it impossible to work the mine at a profit (x). A lessee of iron mines covenanted to work them, unless prevented by accident or want of materials, or unless the ironstone should be insufficient in quantity or quality, or would not by itself, or with a proper mixture or process, make good common pig-iron. It was held, that the mixture intended was not necessaril}'- of ingredients procurable on the demised premises (^). In another case, there was a demise of all mines which had been, or during the demise should be, discovered or open imder certain lands, and there was a covenant b}' the lessee that he would work the said mines in a proper and workmanlike manner ; and it was held, that no action lay on the covenant if the mines had never been worked either before or since the demise (^). On the construction of a proviso that the lease should be void if the tenant ceased working at any time for two j-ears, it was held, that a fraudulent working for a short time would not prevent a forfeiture (a). Where a lessee covenanted to use his utmost endeavours to con- Public-house tinue the house open as a public-house, and the licence was taken ^ , . ^ '■ • 1 1 (■ TokeepHous away by the magistrates on account of the disorderly conduct of a Open. sub-tenant, and was not renewed for six years, when the lease expired; it was held, that the covenant was broken, because the lessee had done no act to endeavour to get the licence renewed (?y). But there is no implied covenant by the lessee of a public-house {t) Carr v. Benson, L. R., 3 Ch. 524 ; (y) Foleijv.Addenhrool-c,lZ^Lk,'\\. I7i:. 18 L. T. 696 ; 16 W. E. 744. \z) Quarrington v. Arthur, 10 M. & AV, {u) Jcrvis V. Tomkinson, 1 H. & N. 335. 195 ; 26 L. J., Ex. 41. {a) Doe d. Bryan, v. Bmicks, 4 B. & A. {x) Jervis V. Tomkinson, 1 H. & X. 401; Gow, 220;"'23R. R. 318. 195 ; 26 L. J., Ex. 41. {h) Under r. Prior, 8 C. & P. 518. 714 Chap. XVII. — Ordinaey Particular Covenants. Ch.XVII.s. 5. Covenant for Farticular User. Not to affect Licence. Wooler V. Knott. Protection of Landlord under Licens- inji; Acts. that he Avill do no act whereh}' the licence shall hecome forfeited (c). Even an express covenant that the lessee would do no act which could or might "affect, lessen, or make void" the licence was held not to he broken by a conviction of the lessee which might have been but was not recorded on his licence under the Licensing Acts {d) ; and a covenant so to conduct business " as to afford no ground or pre- text whatever whereby the licence or licences should or might be suspended, discontinued, forfeited, or be in danger of being sus- pended, discontinued or forfeited " has been similarly construed under similar circumstances (ublic-house and express assignment of the benefit of a restrictive covenant by the lessee not to sell ale not bought from the lessors either alone or jointly with an}' future partners, it was held by the Court of Appeal that the covenant run with the reversion, and was not restricted either to assigns carrying on the same brewer's business as the lessors, or to assigns who themselves made beer; and an injunction was granted to restrain the lessee from selling beer other than such as should have been pur- chased from the assignees of the reversion either directl}' or through the original reversioners (x). Where, in the conditions of sale of a public-house, it was described as a free public-house, and the lease contained a clause of this nature, it was held, that the purchaser was not bound to complete his pur- {p) See Form, Davidson's Precedents, vol. 5. (q) Hanbury v. Cundy, 58 L. T. 155, per Stirling, J. (r) Edivick v. Hawkes, 18 Ch. D. 199 ; 50 L. J., Ch. 577; 45 L. T. 168; 29 W. R. 914. (s) Bourne v. Mayor, ' Q"^^^ ' ■ ■ T ^ 1 Enjoyment or other interruption or disturbance by the real owner, or by the [Express). part}' entitled to possession, or by any other person who does not claim " b}', li"om or under" the lessor, would be no breach of such qualified covenant (/), which covenant excludes the implied covenant for title, as well as the implied covenant for quiet enjoyment (V/). The wrongful acts of a tenant of the lessor, under a previous lease, who does things not authorized b\' such lease, do not amount to a breach of the usual qualified covenant for quiet enjoyment (li). So in conveyances containing the usual qualified covenants for title, &c. (i). Even a distress for previous arrears of land tax due from the lessor Distress foi- ls no breach of the usual qualified covenant, because the collector of ^^^^ Lessor. the tax does not claim by, from or under, but ar/ainst the lessor (k). This was held in Stanhy v. Hayes (k). Xor is even the ejectment by the head landlord of the lessor for Ejectment of non-payment by the lessor of the rent due on the head lease or for noiT-mvment breach of any covenant in the head lease a breach of the covenant, of Head Rent. as was held bv the Court of Appeal in Kelhj v. lloqers (I), in which ^'^^i/y. " ^ ^ '^ . . , . Iiogcrs. the words of the covenant were as nearly as possible with those in Stanley v. Hayes, which case was approved, but would have been followed on the ground of the time which had elapsed since it was decided, whether the court had approved of it or not (m). This is a case which is usually provided for by covenant of the mesne landlord icith the suh-tenant to pay the ground rent. A lessee is a purchaser j;ro tanto, to whom the maxim caveat emptor Lessee is put applies {n) if he does not take advantage of his fair opportunities (o). aTto Title Therefore, he must, at his peril, ascertain that the intended lessor and restrictive Covenants oi has sufficient title to demise for the proposed term(2)), and that Lessor. his conveyance does not restrict him from permitting the premises Parher v. to be used for any trade or business intended {q) : or the lessee should (if possible) obtain from the lessor an unqualified covenant for quiet enjoyment during the term, without any interruption or disturbance by the lessor, " or by anij other person or persons wJiom- soever; " i.e. against all persons having lawful title : or he must take (/) Line V. Stephenson. 7 Scott, 69, Ex. W. R. 516. Ch. ; Merrill v. Frame, 4 Taunt. 329 ; 13 (m) Per Lord Esher, M.R., ii). R. R. 61-2. (n) Besley v. Besleij, 9 Ch. D. 103 ; 38 {rj) Live V. Ste2-ihenson, ubi supra. L. T. 844 ; 27 W. R. 184. (h) Jeffryes v. Evans, 19 C. B., N. S. (o) Id. ; Hyde v. Warden, 3 Ex. D. 72 ; 246 ; 34 L. J., Q. B. 261. 47 L. J., Ex. D. 101— C. A. (i) Thackeray v. JFood, 5 B. & S. 325 ; (p) Spencer v. Marriott, 1 B. & C. 457 ; 34 L. J., Q. B. 226. 25 R. R. 453. {k) Stanley y. Hayes, 3 Q. B. 105. (?) See Dennett v. Athcrton, L. R., 7 [l) Kelly v. Rogers, [1892] 1 Q. B. 910 ; Q. B. 316, and 726, post. 61 L. J., Q. B. 604; 66 L. T. 582; 40 l.t. 46 Whyte. 722 Chap. XVII. — Ordinary Particular Covenants. Cn.XVII.s.8. For Quiet Enjoyment {Express). Payment of Kent, &c. , 110 condition of Performance, Edge v. Boilcau, Enjo3-ment during Ex- pressed Term, not during Estate of Lessor. his chance and run all risk as to the lessor's title. Where the lessee is to build upon or otherwise improve the demised premises, or pays a premium for the lease, he should take care either to investigate the lessor's title (or at all events to see the conveyance to him) : or he should obtain an unqualified covenant for quiet enjoyment during the term {r). The lessor ought not to refuse to enter into such a covenant where no investigation of his title takes place. It is much more reasonable that he, rather than the tenant, should run any risk as to his own title, when he does not allow it tO' be investigated by or on behalf of the tenant. But it often happens that an intended lessee fears to lose the proposed lease by asking either for an investigation of the lessor's title or for an unqualified covenant for quiet enjoyment; indeed he generally'' knows that nothing of the sort would be agreed to (s). And yet a sub-lessee, who neglects to inquire into the provisions of the original lease does so at his own risk, and may, at the instance of the original lessor, be restrained by injunction from breaking the covenants in such lease, although they are not repeated in the sub-lease {t) : or he may be ejected for a forfeiture and perhaps have no remedy over against his own lessor (?/). A tenant from year to year, equally with a tenant having a larger interest, is bound to make proper inquiries into his landlord's title, and he is afi;ected with the consequences of not doing so (x). In the covenant for quiet enjo^unent by the lessee, the usual qualification " he i:)ayiny the rent iherehy reserved and performing the covenants " does not make the payment of rent, ifcc, a condition precedent to the performance of the covenant by the lessor. So it was laid down more than 200 years ago in Hays v. Bickerstaff{y), and recently in Edge v. Boilcau (z). Tbe words " during the said term " mean during the whole term expressed to be granted, and not merel}" during the actual con- tinuance of the estate of the lessor (although it is otherwise where the covenant is implied by law) (a) ; as has been held in two cases of leases by tenants for life, in each of which the lease Avas for lives, 4 (r) See Onions v. Cohen, 2 H. & M. 354 ; 34 L. J., Ch. 338, for an instance in which an unqualified covenant was decreed. (s) And see the Vendor and Purchaser Act, 1874, ante, 102. {t) Herbert v. 31aclean, 12 Ir. Ch. R. M;Rohsony. Flight, 34 L. J., Ch. 101; 11 Jur., N. S. 147 ; Mitchell v. Steivard, L. E., 1 Eq. 541. {u) Spencer v. Marriott, 1 B. & C. 457 ; 1 L. J., K. B. 134 ; 25 R. R. 453 ; Hayicard v. Parke, 16 C. B. 295. {x) Wilson \. Hart, L. R., 1 Ch. 463; 12 Jur., N. S. 460 ; 14 L. T. 409. (y) Hays v. Bickerstaff, 2 Mod. 34 ; Yaugh. 118. See also Z^aifio/i V. Dyer, 5 B. & Ad. 584 ; Allen v. Babbington, Sid. 280. Anon., 4 Leon. 50, contra, would seem to be no longer law. Bastin v. Bid- u-cll, 18 Ch. D. 238, and the cases seem- ingly contra there collected by Ka)', J., are, it is submitted, distinguishable on the ground that the renewal of a lease is a privilege. (z) Edge v. Boileau, 16 Q. B. D. 117 ; 55 L. J., Q. B. 90 ; 53 L. T. 907 ; 34 W. R. 103. («) Ante, 719, Sect. 8. — For Quiet Enjoyment (Express). 723 the lessor held under a settlement not authorizing such a lease, and Ch. XVII. s,8. the lessee was evicted by the remainderman after the death of the For Quiet . p ^ T /7\ Enjoyment lessor, but durmg the contniuance of the lives {h) . {Express). The express covenant for quiet enjoyment without any interrup- Covenant for tion or disturbance by the lessor, his heirs or assigns, even though Quiet Enjoy- ■^ 1 ment does not followed b}^ the words " or by any other person or persons whomso- extend to ever," does not extend to the unlaivfid acts of third loersons liaving pgrsons^'"^^^ no title (c). The law will never adjudge that a lessor covenants having no against the ivrongfid acts of strangers, except his covenant is express to that purpose ; for the law itself does defend every man against wrong ; and therefore, though one warrants land to another ex- pressl}', [or covenants for quiet enjoyment generally,^ yet he does not defend against tortious entries ((/). It is, however, diflerent where an individual is named, for there Covenant the covenantor is presumed to know the person against whose acts rujDtion by he is content to covenant, and may therefore be reasonably expected 5.*"^'^ 1 Persons. to stipulate against any disturbance from him, whether by lawful title or otherwise (e). Therefore a covenant for quiet enjo3^ment, or for indemnity against all actions, suits, claims and demands whatsoever, both in law and equit}", of certain named persons, extends to their unlawful acts, claims and demands, without any lawful right or title (/), as well as to their lawful acts (r/). It has been held too By Persons that a covenant for quiet enjoyment against all persons claiming, or claim. ° pretending to claim, extended to all interruptions whether lawful or not except those of persons claiming under the lessee himself (/i). The covenant of course applies to all interruptions and dis- AVhat Acts tm"bances by the lessor himself (i), although it be framed against by Lessor " lawful " evictions {k), for in such a case the court will not consider liimself. the word "lawful " {I). Therefore if a lessor covenant that he will not interruj)t the lessee in the enjoyment of a close demise, the erection by him of a gate on a necessary way leading to it, so as to intercept it, is a breach of the covenant, although the lessor had a legal right to erect the gate there, but for his covenant {m). So if the lessor of a' mine excavates a stone quarry over it, in such a manner as thereby to interrupt the lessee in his occuijation of the mine, that is a breach of the covenant for quiet enjoyment, whether the lessor has or has not a legal right to excavate the quarry («)• (&) Evans v. Vaughan, 4 B. & C. 261 ; (/) Foivle v. Welsh, 1 B. & C. 29 ; 1 Williams v. Burrell, 1 C. B. 102. L. J., K. B. 17 ; 25 R. R. 291. (c) Year Bk. 22 Hen. 6, 62 b ; 32 Hen. {g) Foster v. Mapes, supra ; Perry v. 6, 32 b ; Tisdale v. Sir W. Essex, Hob. Edioards, 1 Stra. 400. 34, 35 ; Dudley v. FolUott, 3 T. R. 585 ; 1 {h) Chaplin v. Southgate, 10 Mod. 384. R. R. 772 ; Young v. liaincocJc, 7 C. B. (i) Corns v. , Cro. Eliz. 544. 310. {k) Lloyd V. Tomkies, 1 T. R. 671. {d) See ante, 718. (0 Crosse v. Young, 2 Show. 421. (c) Nash V. Palmer, 5 M. & S. 374. 379 ; [m) Andreivs v. Paradise, 8 ]\Iod. 318. Foster v. Mapes, Cro. Eliz, 213. ' {%) Shaiv v. Stenton, 2 H. & N. 858. 46—2 724 Chap. XVII. — Ordinary Particular Covenants. .Ch.XVII.s.8. For Quiet Enjoyment {Express). Acts of Person claiming through or under Lessor. By Settle- ment. By Prior Lease. By Mortgage. Breach by Act of Lessee of Adjacent Premises. It ma}'- sometimes be more difficult to decide whether persons causing an interruption chiim "through or under" the lessor. If the lessor covenant with the lessee that he has not done any act to prejudice the lease, but that the lessee shall enjo}^ it against all persons ; in this case, the words " against all persons " refer to the first branch of the covenant, and are limited and restrained to acts done by him (o). Where the lessors covenanted that the lessee of a mill should enjoy the mill and stream without interruption by them, or by persons claiming under them, or by their acts or procurement, a diminution of the water occasioned by supplies under contracts entered into by the lessors prior to making the lease, is not a breach of the covenant for quiet enjoyment ( j) ). But where the covenants for title are general and absolute against all persons they will not be qualified by reference to other covenants, unless there are words either in the absolute covenants themselves, or in the preceding or subsequent ones, to connect them ((/). Where A. B. covenanted with his lessee for quiet enjoyment as against any person "claiming by, from or under" him, it was held, that an eviction by a prior appointee of A. B. and C. D. was a breach of the covenant, and that the case was not altered by the grant to the lessee being " as far as in his power laj'^, or he lawfully might or could " (?•). So an eviction by the lessor's widow, claiming under a settlement executed by him before the lease, constitutes a breach (.s). So is an eviction by a tenant under a previous lease granted by the lessor if) ; and also an injury to the foundations, committed under a previous mining lease granted b}" an ancestor of the lessor, expressly named in the lessor's covenant for quiet enjoyment («). The usual qualified covenant for (piiet enjoyment is likewise broken bv fin eviction, molestation or disturbance of the lessee by persons claiming under a prior mortgage for a long term granted by the trustees of a settlement witU the con- currence of the defendant, who joined therein and covenanted for payment of the mortgage-mone}^ and for title, &c. [x). It is also broken by interruption of the enjoyment by the lessee of adjacent premises held under a common lessor, as was held in a case where the defendants demised a farm to the plaintiff having previously demised an adjoining farm to another lessee with the right to use the drains through plaintiff's land to carry away as much water as (o) Shep. Touch. 166. {p) Blatchford v. Mayor, Ac, of Ply- mouth, 3 Bing. N. C. 691 ; and see Thackeray v. IFood, 5 B. & S. 325 ; 33 L. J., Q. B. 275. (q) Smith v. Compton, 3 B. & Adol. 189. (r) Calvert v. Sebright, 15 Beav. 156. (s) Butler V. Swinnerton, Cro. Jac. 656 ; Palm. 339 : 2 Roll. 286. {t) Eolith V. Crouch, L. R., 3 Ex. 44 ; 37 L. J., Ex. 8. {u) Taylor v. Shafto, 16 L. T. 205. {x) Carpenter v. Parker, 3 C. B., N. S. 206; 27 L. J., C. P. 78. Sect. 8. — For Quiet Enjoyment (Express) . 725 they were adequate to carry, and the plaintiff's farm was damaged Ch.XVII. s.8, by the escape of water from drains imi^roperly constructed ((/). -^'''" C^"'^*^ '^ J. i ^ ;£,ljQyjjlgflf {E.r})ress). A breach of the covenant for quiet enjoyment may occur either by — , . . . » ,. „■ 1 • 1 1 .• J ,1 ' ilolestation a molestation arising irom an action oi any kind rehitmg to the by Action. title or possession, or b^^ any act by which the lessee is disturbed in the ijossession of the premises. Of the first sort is an ejectment by a person having a lawful title ; or any other suit \>\ which the peaceable occupation of the premises is jDrevented : thus, a covenant in a lease, that the lessee should quietly enjoy the estate discharged from tithes, was held broken by a suit for them, although commenced after the expiration of the term {z) : but where in covenant for quiet enjoyment the breach assigned was, " that the defendant had exhibited a bill in Chancery against him for ploughing meadow, and obtained an injunction, which had been dissolved with 20s. costs ; " it was held on demurrer to be no breach of covenant, for the covenant was for quiet enjoj'ment, and this was a suit for waste (a). On the other hand, any description of annoyance, on the part of Prevention of the lessor himself, to the occujiation of the premises, which prevents ^f Land, the lessee from enjoying his property in so ample a manner as he is entitled to do by the terms of the lease, amounts to a breach of the covenant for quiet enjoyment of a second sort : thus if a man cove- nant that he will not interruj)t the covenantee in the enjoyment of a close, the erection of a gate which intercepts it is a breach of the covenant, although he had a right to erect it {h). So if, after a demise of mines containing the usual covenant for quiet enjoyment, the lessor digs a quarry over the mines and makes holes, through which water percolates and escapes into the mines, although he had a legal right to work the quarry, his doing so in such a manner amounts to a breach of the covenant for quiet enjoyment of the mines (c). But the covenant is not a covenant of indemnity, and only ^o^ a extends to interruptions which might have been foreseen when the indemnity. lease was granted. Therefore where a "feeder" was struck in the course of working a mine with the result that a large body of under- ground water, the existence of which was unsuspected and the nature of which was uncertain, flooded the mine which adjoined a mine worked by the landlord, it was held that the lessee of the flooded mine could not maintain an action on the covenant {d). (y) Sanderson v. Mayor of Berwick:, (b) Andrews v. Paradise, 8 Slod. 318. 13 Q. B. D. 547 ; 53 L. J., Q. B. 554 ; (c) Shaw v. Stenton, 2 H. & N. 858. 51 L. T. 495; 33 AV. E. 67— C. A., vary- [d) Harrison, AinsUe & Co. v. Loi-d ing judgment of Denman, J. Muncaster, [1891] 2 Q. B. 680; 65 L. T. (z) Laming \. Laming, Cro. Eliz. 316. 481 ; 40 AV. R. 102— C. A. (a) Morgan v. Hunt, 2 Ventr. 215. 726 Chap. XVII. — Ordinary Particular Covenants. Ch.XVII.s.8. For Quiet Enjoyment {Express). Disturbance of way. Restriction of Particular Use of Land. Bennett v. Atherton. Notice to Sub- tenant to pay- Kent to Land- lord. Breach under Compulsion of Statute. Newhy v. Shar2)e. An action on the covenant for qniet enjoyment may be maintained for the disturbance of a way of necessity (c); or of a wa}' by grant from the covenantor (/), if the act done be in the assertion of title, and not a mere tortious act for which an action of trespass might be maintained (r/). The restriction of the particular use of the land must be the act of the lessor himself, otherwise the action cannot be supported. A decree restraining a particular use of the land by reason of a covenant with the lessor, but not otherwise interfering with the title, is not a breach of the covenant for quiet enjoyment. This was held by the Exchequer Chamber in Dennett v. Atherton (li). There the defendant covenanted with the grantor, upon a conveyance of the premises to him in fee, not to permit any part of the premises to be used for selling beer, and afterwards let part of the premises with a covenant for quiet enjoyment on his part, and a covenant not to carry on particular trades (of which beer-selling was not one) on the part of the lessee. The term was assigned to the plaintiff, who had no notice of the defendant's restrictive covenant, and having used the premises as a beer-shop was restrained b}' an injunction in Chancery from so doing. The court decided that there was no breach of covenant, express or implied. But it has been since laid down in the Court of Appeal that where the ordinary and lawful enjoyment of the demised land is substantially interfered with by the acts of the lessor or those claiming under him the covenant is broken, though neither the title to nor the possession of the land may be affected (i). A notice to a sub-tenant to pay the rent due to the landlord instead of to the tenant, appears to be a breach of the covenant if the notice be complied with (A), but otherwise not (l). Failure by a landlord under compulsion of a statute is no breach. Where a landlord covenanted to keep the demised premises available for storing cartridges, and for quiet enjoyment, and the Explosives Act, 1875, passed after the demise, made such storage illegal, it was held that the landlord might lawfully remove the cartridges, and committed no breach of the covenant for quiet enjoyment by so doing {)n). {e) Morris v. Edgington, 3 Taunt. 2i ; 12 K. R. 579. (/) Pomfrct V. Ricroft, 1 Taunt. 322. (fir) Seddcn v. Senate, 13 East, 72. {h) L. R., 7 Q. B. 316 ; 41 L. J., Q. B. 165 ; 20 W. R. 442 ; affiiming Spencer v. Marriott, 1 B. & C. 457. (t) Sanderson v. Mayor of Berwick- upon-Tweed, 13 Q. B. D. at ]). 551 ; and see liohinson v. Kilvert, 41 Ch. D. at p. 97— C. A. (/•) Edge V. Boilcau, 16 Q. B. D. 117, and 722, ante ; in thiscase the plaintiff recovered 100/. damages, and the Court refused anew trial for excess of damages. {I) Edge v. Boileau, supra ; Whichcot and Lindsey v. Nine, B. & G. 81. (?/i) Newhy v. Sharpe, 8 Ch. D. 39 ; 47 L. J., Ch. 617 ; 38 L. T. 583 ; 26 W. R. 685. Sect. 8. — For Quiet Enjoyment (Express). 727 A covenant for quiet enjoj'ment does not oblige the lessor to Ch.XVII. s.8. rebuild or repair, in case the buildings are destroyed or injured by ^°'' '^""'^ £..,!•/, ' Enjoyment tire, tempest or otherwise {n). [Express). In Anderson v. Oppcnlieimcr, it was held that the covenant for i^noTto quiet enjoyment was not broken by the bursting of a water-pipe 't'^uild. conveying water from a cistern belonging to the landlord of a house J?!"?*^"'^' ^^ ^ . Water-pipe. let in separate floors (o), but it seems that if there had been Anderson y. negligence on the part of the landlord in keeping and maintaining Oppenhcimcr. the pipe, or any act wilfully done or omitted to be done by the land- lord in connection with it after the demise, the decision would have been the other way. But for a breach of this kind, there must be Nuisance by a physical interference with the demised premises ; a mere nuisance Daiidn*o"ou is not enough. Therefore, where the landlord of two rooms let a ^'^oi' above. room above them for music and dancing, whereby the tenant of the '^^''^^"^■" ^'■ two rooms, who occupied them as offices in his business as an accountant, was much annoyed, it -was held that there had been no breach of the covenant for quiet enjoyment, although the court awarded 20Z. as damages for the noise and vibration {p). The covenant for quiet enjoyment runs with the land {q), and is Runs with therefore binding on the assignees of the reversion ; and may be ^" * rendered available by the assignees of the term. Where A. let to Lewis. B., who assigned to C, and C. assigned to D., and B. had covenanted for quiet enjoyment with 0. and his assigns, it was held by the Exchequer Chamber, that D. might maintain an action against B., on being ejected by A., for a forfeiture by B. before the assignment to CO"). When the covenant is general, the alleged breach must show an Particulars of interruj^tion or disturbance b}' some person having lairfid title and right of entry (s). Where the covenant applies to the acts of any particular person or persons therein named, an interruption or disturbance by any such person (whether lawful or not) amounts to a breach (0- Where the covenant is qualified and confined to interruptions and disturbances by the lessor, his heirs and assigns, *'or by any other person or persons claiming by, from or under him, them or any of them," the breach must show an interruption (n) BroiL-n v. Quiltcr, AmWcr, 620 ; ante, 8 Taunt. 715 ; 21 R. R. 516. Chap. XVI. (r) Id. (o) Anderson v. Oppenhcimcr, 5 Q. B. D. (s) Lucy v. Leviston, Freeni. 103 ; 3 Keb. 602 ; 49 L. J., Q. B. 708, affirming decision 163 ; Dudley v. FoUiotf, 3 T. R. oS.^i ; 1 of Field, J. R. R. 772; Young v. Kaincock, 7 C. B. (p) Jenkins v. Jackson, 40 Cli. D. 71 ; 310; Hall v. City of London Brciccry Cd., 58 L. J., Cii. 124 ; 60 L. T. 95 ; 37 W. R. 2 B. & S. 737 ; 31 L. J., Q. B. 257 ; 254; per Kekewich, J., distinguishing Jeffrycsx. Evans, 19 C. B., X. S. 246. Shaio V. Stcnton, 2 H. & N. 850, and (t) Foster v. Jlapes, Cro. Eliz. 212 ; p. 725, supra, on the gvound that there was Liccy v. Leviston, Freem. 103 ; 3 Keb. 163 ; physical interference in that case. Fowle v. Welsh, 1 B. & C. 29 ; 25 R. R. {q) Campbell v. Lewis, 3 B. & Aid. 392 ; 291 ; Nash v. Palmer, 5 II. & S. 374 ; 17 21 R. R. 520 ; affirming Zcwj's v. Campibell, R. R. 364. 728' Chap. XA^II. — Ordinary Particular Covenants. Ch.XVII. s. 8. or disturbance by the lessor (?(), bis heirs or assigns, or by some For Qutet other person lawfully claiminii" bv, from or under him, them or some Lnjoyment ^ * o . ' ' _ {Express). of them {x). One who claims under a deed of settlement made b}' A. is a person claiming under A. within the meaning of the usual qualified! covenant for quiet enjoyment (?/), as also is a person who claims- under a lease previously granted by the lessor {z), although such lease has expired (a). " Claiming Under " Lessor. Resident Porter. Staircase. Sect. 9. — Covenants in Leases of Flats. The cases bearing on covenants in leases of fiats will be found collected together in Mr. Clode's Book on Tenement Houses and Flats, and also in Mr. George Blackwell's book on the Law of Eesidential and Business Flats. In the present work the}' are dealt with separately, but reference may be made here to Ryan v. Miitaal Tontine Westminster Chambers Association (h), in which the Court of Appeal held that that had been no breach of a covenant by the defendant lessor to employ a resident porter to act as a servant of the tenants of the several rooms in each of seven distinct blocks ; to Miller v. Hancock (c), in which the same court held that the owner of a flat is liable for injuries caused to persons having business with the tenants by the staircase being out of repair ; to Allport v. Securities Corporation (d), in which North, J., granted a mandatory injunction to reinstate a staircase, the removal of which caused a tenant's access to his rooms to be by another staircase along a circuitous and Conversion of less convenient route; and to Hudson v. Cripps {e), in which the Club!" ° landlord of residential flats was restrained by North, J., from con- verting a large part of them into a club, at the instance of a tenant who held under an agreement in a common form binding the tenant to rules suitable only for residential purposes, although there was no express agreement by the landlord that the building should be used exclusivel}' for residential flats. (u) Corns V. , Cro. Eliz. 544 ; Andrcics v. Paradise, 8 Mod. 318 ; Lloyd V. Tomkics, 1 T. K. 671 ; Shaw v. Stenton, 2 H. & N. 858. {x) Ante, 720. (y) Hiird v. Fletcher, 1 Don;:;- 43 ; Evans V. Fauqhan, 4 B. & C. 261 ; Carpenier v. Farkcr', 3 C. B., N. S. 206 ; 27 L. J., C. P. 78. (z) llolph V. Crouch, L. R., 3 Ex. 44 ; 37 L. J., Ex. 8. (a) Ludtcell v. Newman, 6 T. R. 458 ; 3 R. R. 231 ; Coe v. Clay, f> Birg. 440 ; 7 L. J., C. P. 162 ; 30 R. R. 699 ; Jinks V. Edicards, 11 Exch. 775. {h) Ryan x. Mutual Tontine Association, [189.3] i Ch. 116 ; 62 L. J., Ch. 252 ; 67 L. T. 820; 41 W. K. 146; 2 R. 156— C. A., reversing judgment of Smith, J., [1891] 1 Oil. 427. (c) Miller V. Hancock, [1893] 2 Q. B. 177 ; 69 L. T. 214 ; 41 W. R. 578 ; 4 R. 478-C. A. {d) Allport V. The Securities Corporation, 64 L. J., Ch. 491 ; 72 L. T. 353 ; 14 K. 420, per North, J. (e) Hiuison v. Cripps, [1896] 1 Ch. 265 ; 65 L. J., Ch. 328 ; 73 L. T. 741 ; 44 W. R. 2(10, per North, .1., applying Spiccr v. Martin, 14 App. Cas. 12, and p. 707, ante. ( 729 ) CHAPTER XYIII. OF RIGHTS OF COMMON, WAY, LIGHTS, WATER, AND SPORTING, AND OF THE LONDON BUILDING ACT. Sect. page 1. Eights of Common 729 (a) Generall}' 729 (b) Common of Pasture 734 (c) Common of Turbary 737 (d) Common of Estovers 737 (e) Common of Piscary 738 (f) Api^rovement of Common 739 (g) Inclosure of Common 741 Sect. page 2. Rip;litofWay 741 3. Lights 746 4. Watercourses 750 5. Game 759 (a) Game generally 759 (b) " Gronnd Game " 7C5 6. London Building Act 768 Sect. 1. — liights of Common {a). (a) Generally. Common is a right or liberty to take or use some part or portion Nature of of that which another person's lands, woods, waters, &c., naturally Qq^^-^^q^ produce, without having any property in such lands, woods, waters, kc. (1)). The most usual riglits of common are — 1. Common of pasture— that is, a right of liberty which one or more ma}^ have to feed their cattle on another man's land. 2. Common of turbary — that is, the liberty to cut turves in another's soil to be burnt in a house (c). 3. Common of estovers — that is, a right to take trees, loppings, shrubs or underwood in another's wood, coppices, itc. (d). 4. Common of piscary — that is, a right to fish in another's pond, pool or river. A right of common is not a mere easement, but a profit a prendre Pvight of in the soil of another. So is a right to hunt, shoot, fowl or fish in another's land or water, and to carry away whatever is so taken (e): so is a right to dig clay in another's land for the purpose of making bricks (/). But a right to deposit and mix dung, &c. upon adjoining land, and to make the same into manure, and carry away the same, is a mere easement and not a profit a prendre {g). So a right in the occupier of an ancient messuage to water his cattle at a pond. Common not mere Ease- ment. (a) And see Hall on Eights of Common and Profits a Prendre, a.d. 187]. {h) Rac. Abr. tit. Common; Tudor's L. C. Real Prop. 108 (2nd ed.). (c) Noy, 145 ; 3 Lev. 165 ; 7 East, 121. {d) Cro. Jac. 25 ; Cro. Eliz. 820 ; 4 Co. R. 87 a ; 5 Id. 25 a. (c) JFickJiam v. HmcJccr, 7 il. k "\V. 63. (/) CJaiilon V. Corhy, 2 Q. B. 813. ((/) Pyc V. Mumford, 11 Q. B. 666, 668. 730 Chap. XYIII. — Rights of Common, Sporting, etc. Ch.XVIII.s.I. Rights of Common [GencraUy). Kiglit of Coirimon cannot exist by Custom. Prescriptive Rights at Common Law. The Prescrip- tion Act. Sect. 1. Rights of Common and other Profits a prendre, after Thirty Years' Enjoy- ment. After Sixty Years the Right to be absolute, unless, &c. and to take the water thereof for domestic purposes, for the more convenient use of his messuage, is a mere easement and not a profit a prendre (//). A right of way is a mere easement and not an interest in the land itself (i). A right of common or other profit a prendre can exist only by grant under seal, or by prescription from time immemorial (which is alwaj's supposed to be founded on an ancient grant) ; or by user for thirty or sixty years pursuant to the Prescrip- tion Act (li), but not b}" custom (L). "The reason why a profit a j)rendre cannot be supported by a custom in an indefinite number of people is, that the subject of the profit a prendre would, in tluit case, be liable to be entirely destroyed " (;»)• ^ right to carry away the soil of another without stint cannot be claimed even by prescrip- tion ; nor can the claim be sustained by evidence of a lost grant ()()• By the common law an enjo^-ment to confer a title to an easement or profit a prendre must have existed (or be bound by a jury to have existed), from time immemorial [a.d. 1189], and is presumed to have originated by a grant made before that time (o) ; and any easement or profit a prendre, which is reasonable and might have been so granted, may be claimed by wa}' of prescription at common law {j}). By the Prescription Act, 1833, 2 & 3 Will. 4, c. 71, it is enacted (s. 1), tliat no claim which may be lawfully made at the common law by custom (g), prescription or grant to any right of common or other profit or benefit to be taken and enjoyed from or upon any land, shall, where such right, profit or benefit shall have been actually taken and enjoyed by any person claiming right thereto without interruption for the full period of tliirty years, be defeated or destroyed by show- ing only (r) that such right, profit or benefit was first taken or enjoyed at anytime prior to such i^eriod of thirty years ; but that such claim may be defeated in an}'^ other wa}^ by which the same is now liable to be defeated (s) ; and when such right, &c., shall have been enjoyed for the sixty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was taken and enjoyed by some express consent in writing. (7i) Manninqy. Wasdalc, 5 A. & E. 758 ; Whalcy v. Laing, 2 H. & N. 476 ; 3 H. & N. 675, 901 ; 27 L. J., Ex. 422. {i) Godlci/ V. Frith, Yelv. 159. (k) 2&3 AVill. 4, c. 71, infra. (l) GateicanCs case, 6 Co. R. 60 : Cro. Jac. 152 ; Grimstead v. Marlow, 4 T. R. 717 ; 2 K. R. 512 : Jones v. Rohin, 10 Q. B. 581, 620. [m) Race v. Ward, 4 E. & P>. 705. [n) Att.-Geii. v. Mathias, 4 K. &: J. 579 ; 27 L. J., Ch. 761 ; Baileij v. Stephens, 12 C. B., N. S. 91. (o) Potter V. North, 1 A'entr. 387 ; 2 Blac. Com. 265. {p) Rogers v. Taylor, 1 H. & N. 706 ; 26 L. J., Ex. 203. {q) Mounsey v. Isrnay, 3 H. & C. 486 ; 24 L. J., Ex. 52. No claim to a profit a prendre can be made by custom, unless in the ca.se of a copyliold tenant against liis lord; Arlett v. Ullis, 9 B. &" C. 671; Beardsworth v. Torkington, 1 Q. P). 782. (r) See Rochdale Canal Co. v. Radcllffc, 18 Q. B. 287. {s) There are six modes by which i)re- scriptive rights may be extinguished, viz., 1. By unity of possession. 2. liy ridease. 3. By severance. 4. By tlie dissohiticiu of the corporation to which tliey btdoiig. 5. By enfranchiseraeut. 6. By inclosure. Sect. 1. — Eights of Common (Generally). 731 By sect. 4, each of the periods of j-ears hereinbefore mentioned is to be the period next before some suit or action (t) wherein the chiini or matter to which such period, may relate is brought into question ; and no act or other matter is an interruption, within the meaning of the statute, unless it be submitted to for one year after the party interrupted has had notice thereof, and of the person making the same. It is possible for an interruption not to be submitted to or acquiesced in for one year, although no action for it be brought within that period (?/). By sect. 6, no presumption is to be allowed or made in favour of any claim, upon proof of the exercise of the right claimed for any less period of time than for that mentioned in the act. Sect. 7 provides, that the time during which au}' person, otherwise capable of resisting any claim, shall have been an infant, idiot, non compos mentis, feme covert, or tenant for life (x), or during which any action shall have been pending and diligently prosecuted until abated by the death of any party thereto, shall be excluded in the comj)utation of the periods hereinbefore mentioned. A title under this act is always inchoate until the action is com- menced in which its validity is called in question, however long it may have been enjoyed {ij). On the other hand, a right which is inchoate at the time of the interruption or disturbance may become complete and support an action for such interruption commenced immediately after the expii'ation of the prescribed period and before the interruption has been submitted to for a year(^). So a defen- dant's right may become complete between the time w'hen, &c., and the commencement of the action (a). A title gained under this act by user for the prescribed period may exist concurrently with a common law title, and does not merge or extinguish it {h). A right claimed by user under this act can only be co-extensive with the user ; and an issue on a plea justifying under such a right is an issue not tqyon the right, but the user, and differs therefore from an issue on a right claimed by prescription from time immemorial (c). The words " enjoyed by an}^ person claiming right " (sect. 2), and *' enjoyment thereof as of right" (sect. 5), mean an enjoyment had, (0 See Ward v. Ilohins, 15 M. & W. 241, l'^^;- Cooper v. Hubbuck, 12 C. B., N. S. 456; 31 L. J., C. P. S23 ; Bennison v. CartivrigJit, 5 B. & S. 1 ; 33 L. J., Q. B. 137. (u) Bennison v. Ca,rtu-riqhf, supra. (■r) Pye v. Mumford, 11 Q. B. 667. Not a tenant for j'ears ; PaJk, Bart. v. Skinner, 18 Q. B. 568; 22 L. J., Q. B. 27. (y) WrigJd v. Williams, 1 M. & W. 77 ; Richards v. Fry, 7 A. & E. 698 ; 3 N. & P. 67. Ch.XYIII.s.1. Rights of Common {Generally). Sect. 4. Above Periods to be next before some Action. Sect. 6. No Presumption allowed on Proof of User for shorter Period. Sect. 7. Proviso for Disabilities. Title iucboate imtil Action commenced. " Enjoyment as of Right" means an open Enjoyment. {z) Flight V. Thomas, 11 A. & E. 688 ; 3 P. & D. 442 ; 7 Dowl. 741 ; S. C. (in error), 8 CI. & Fin. 231 ; 1 West. 671. (a) Ward v. Robins, 15 M. & W. 237. (b) Onley v. Gardiner, 4 M. & W. 496 ; Loive V. Carpenter, 6 Exch. 825. (c) Davies v. Williams, 16 Q. B. 546 ; Battishill v. Reed, 18 C. B. 696, 703 ; Rochdale Canal Co. v. RadcUffe, 18 Q. B. 303, 304. 732. Chap. XYIIl. — Eights of Common, Sporting, etc. Cn.XVIII.s.l. Mights of Common ( Generally). The Prescrip- tion Act — continued,. liemeJics for a Disturbance of Connnon. not secretly or by stealth, or by tacit sufferance, or by permission asked from time to time on each occasion or on many ; but an enjoyment had openly, notoriously, without particular leave at the time, by a person claiming to use without danger of being treated as. a trespasser, as a matter of right, wiiether the right so claimed shall be strictly legal as by prescription and adverse user, or by deed, or shall have been merely lawful so far as to excuse trespass (rf). The user must not be precarious (c), but as of right against all persons, so as to be evidence of a perfect right (/). The enjoyment must be continuous and as of right for the prescribed period next before the commencement of the suit, of the easement a.9 an easement (g), with- out interruption acquiesced in for a 3'ear {h) : and such right is defeated by unit}' of possession during all or part of the period of enjoyment, though such unit}' of possession has its inception after the completion of the prescribed period (/). Therefore Avhere the plaintiff had enjoyed a way as of right and without interruption from 1800 to 1855, when the action was brought, it was held, that his claim under the statute was defeated by unity of possession from lSi'6 to 1853 (k). The right or easement must be appurtenant to some dominant tenement, and not in gross ; otherwise the act does not apply (/). The remedies for disturbance of common may be considered as respects the lord, and as regards the connnoner. The former having the right to the soil may, when Avrongfully dispossessed thereof, maintain an action of ejectment {in) ; and if he be disturbed by a mere stranger, who puts in cattle, having no colour of right, or by a commoner who surcharges the common, he may maintain an action of trespass or case (n). In some cases, also, where the right of common is clearly stinted as to number, he may distrain the surplus number damage feasant {o). It has been held, tliat a commoner may maintain an action on the case for an injflry done to the common, by taking away from thence the manure which was dropped on it by the cattle, thougli his proportion of the damage be found only to the amount of a farthing : at least the smallness of the damage found is no ground for a nonsuit (j>). One commoner, who has surcharged, {(l) Tickle V. Brown, 4 A. & E. 369 ; Gavcd V. Martyti, 19 C. B., K. S. 732; 34 L. J., C. P. 353. (e) Gavcd v. Martyn, supra. (/) Winshipy. Hudspeth, 10 Exch. 5 ; 23 L. J., Ex. 268. ((/) Mounscy v. Ismay, 3 H. & C. 486 ; 34 L. J., Ex. 52. A man cannot have an " easement " over his own ku'l, but only upon or over the Land of another jierson. See Onley v. Gardiner, 4 M. & W. 496. (h) See Bcnnison v, Cartwriyht, 5 B. & S. 1;33L. J., Q. B. 137. (0 Onley v. Gardiner, 4 M. & W. 496 ; Battishill v. Reed, 11 C. B. 696 ; 25 L. J., C. P. 290. (/.) BaUishill v. Reed, supra. (/) Shuttlcrcorth v. Lc Flcmiaq, 19 C. B., N. S. 687 ; 34 L. J., C. P. 309. (??i) Cole F.jec. 611. (n) Arlett v. Ellis, 9 B. & C. 671. (0) 1 Roll. Abr. 665 ; Dixon v. James, 2 Lutw. 1241 ; 4 Burr. 2431. ( 2> ) Pindar v. Wadsworth, 2 East, 154 ; 6 R. R. 412. Sect. 1. — Eights of Common (Geneeally). 733 Rights of Common {Generally). Abatement of ISTuisances on Common. may maintain an action against another for surcharging the com- Ch.XYIII.s.1 mon {([). One commoner cannot generally distrain the cattle of another ; for the right of commonage, which every commoner has, rmis through the whole land i^r). Nor can one commoner distrain the cattle of another commoner pur cause de vicinage, inasmuch as the cattle come upon the common under some colour of right (-s). But in case of an absolutely stinted common, in j)oint of number, one commoner ma}" distrain the supernumerary cattle of another {€) ; hut not if an admeasurement be necessary, as where the stint has relation to the quantity of the commoner's land(?f). A freeman or burgess, entitled as such to common of pasture, ma}' distrain the cattle of a person wrongfully claiming to be so entitled {x) ; or he may sue for the disturbance [ij). Where a house obstructs the exercise of a right of common the commoner may, after notice and request to the party to remove the house, pull it down, though such party is actually inhabiting and present in the house {z) ; but he may not do so without such previous notice and request (a). Where the injury complained of arises from an act of the lord, the commoner may often proceed himself to abate the nuisance (h) ; thus, if the lord so plant trees as to destroy the common, such an act would be considered as a nuisance, and the commoner might abate it ; but he cannot justify cutting down trees planted by the lord on the waste, if it be not a total destruction of the common, though there be not a sufficiency of common left ; his remedy being by action on the case (c). The distinction seems to be this : if the lord of the manor make a hedge round the common, or ■do any other act that entirch/ excludes the commoner from exercising his right, the latter may do whatever is necessary to let himself into the common : but if the commoner can get at the common, and enjoy it to a certain extent, and his right be merely abridged by the act of the lord, in that case his remedy is by an action on the case, and he cannot assert his right by any act of his own (d) . The owner of a conmion may, under the stat. of 13 Edw. 1, stat. 1 (Westni. 2), c. 46, erect thereon a house necessary for a beast-keeper or for a "woodward (e). It seldom, if ever, happens that a commoner can iq) Hohson v. Todd, 4 T. R. 71 ; 2 R. E. 335. (r) Bac. Abr. tit. C'omjnon (C. 2) ; Hall -v. Harding, 4 Burr. 2426. (s) Ccq^e V. Scott, L. R., 9 Q. B. 269 ; 43 L. J., Q. B. 65 ; 30 L. T. 87 ; 22 W. R. ^26. (0 Year Book, 46 Edw. 3. 12 b ; 2 Lutw. 1241 ; Mary's case, 9 Co. R. 112 ; Freem. 273. («) Hall V. Harding, 1 W. Blac. 673 ; 4 Biirr. 2426. {x) Stubbs V. Escourt, 2 H. & C. 47. [y) Bradsvjorth v. Torkinqton, 1 Q. B. 782. {z) Davics V. Williams, 16 Q. B. 546. (a) Perry v. Fitzhowe, 8 Q. B. 757 ; Jones V. Jones, 1 H. & C. 1 ; 31 L. J., Ex. 506. {b) Bac. Abr. tit. Common (C). (c) Kirby v. Sadgrove (in error), 1 Bos. & P. 13 ; 3 Anst. 892 ; 6 T. R. 483. (d) Bac. Abr. tit. Common (C.) ; Cooper V. Marshall, 2 Wils. 51 ; 1 Burr. 259 ; Kirby v. Sadgrove (in error), 1 Bos. & P. 13. (c) Patrick v. Stubbs, 9 M. & W. 830. 734 Chap. XVIII. — Eights of Common, Sporting, etc. Ch.XVIII.s.I. Bights of Common {Generally). Ascertain- ment of Eights of Common. distrain the cattle of the lord as damage feasant, unless by special custom (/). But it seems that if cattle be agisted by the lord and improperly put on the common, the commoners may distrain them as the cattle of a stranger (g). An action will lie against the lord by one copyholder on behalf of himself and the other copyholders, being numerous, to have their rights of common ascertained ; but one copyholder, not suing on behalf of all, cannot maintain such action (h). Description and Kinds of Common of Pasture. Common appendant. (b) Common of Pasture. Common of pasture is a right or liberty to depasture cattle, &c. on another's land. It is generally restricted to commonable cattle, i.e. such as plough and manure the land — as horses, oxen, cows, and sheep — and seldom extends to swine, goats, geese and the like («'). It is usually stinted as to the number of cattle to be depastured, either by an express limitation of number, or by those only being allowed to depasture which are " levant and couchant " upon the land in respect of which the right of common is claimed ; i.e. such cattle as the winter eatage of the land, together with the produce of it in summer, and the food obtained from the common, is capable of maintaining (k). A right of common of pasture for cattle levant and couchant cannot be claimed by prescription as appurtenant to a house without any curtilage or land (/). A right of common of pasture wdthout stint, as annexed to an ancient messuage w'ithout land, cannot exist by law (?«) ; but common of pasture may exist in respect of land to which there is no house attached (»). Common of pasture is sometimes limited as to the times or periods of the year during which it may be exercised. But all such restrictions depend upon the terms of the grant (express or implied), or the extent of the user. Common of pasture is divided into — 1. Common appendant. 2. Common appurtenant. 3. Common in gross. 4. Common pur cause de vicinage. Common of pasture appendant is a common law right, and must have existed from time immemorial (o). It belongs of common right only to arable land, for commonable cattle : i.e. horses and oxen to plough the land, kine and sheep to compester it {p) : which cattle (/) Hodesdon v. Oresil, Yelv. 104 ; Ken- ricTc V. Pargiter, Cro. Jac. 208 ; Yelv. 129 ; Hoskins v. Robins, 2 Sauud. 324. {g) Year Book, 30 Edw, 3, 27 ; Bullen, 229. {li) Phillipps V. Hiidson, L. R., 2 Ch. 243 ; 36 L. J., Ch. 301 ; 15 W. R. 370. {i) Tudor L. C. Real Prop. 109 (2nd eil.). {k) Whitcloch v. Hutchinson, 2 Iiloo. & R. 205 ; Carr v. Lambert, 3 H. & C. 499 ; 34 L. J., Ex. 66. {I) Scholes V. Hargreaves, 5 T. R. 46. (»i) Benson v. Chester, 8 T. R. 396 ; 4 R. R. 708. {n) Ricketts v, Salwey, 2 B. & A. 360. (o) Tudor L. C. Real Prop. 109 (2nd ed.). (iJ ) Co. Lit. 122 a ; Bac. Abr. tit. Common (A. 1). Sect. 1.- — Rights of Co:mmon (Pasture). 735 must be " levant and eouchant." Therefore it can only be claimed for as many cattle as are necessary to plough and manure the tenant's arable land (q). Or, perhaps, more accvu'ately speaking, for such cattle as the land, or the produce thereof, will keep during the winter (r). Tenants of a manor have no general common law right of common appendant on the waste (s). Common of pasture appurtenant is a right or liberty annexed to land, of depasturing cattle, &c., on another's land. It is not (like common appendant) confined to arable land or to commonable cattle {t), but it may be annexed to meadow, pasture or other land, and may extend to swine, goats, geese, &c., according to the terms of the grant or the extent of the user. It ma}' be claimed b}' modern grant (?(), or b}' user under the statute {x), or b}' prescription at connnon law (y/). In a 2)lea prescribing for common of pasture appurtenant to land it was, even before the Judicature Act, essential to aver that the cattle were the party's own cattle levant and eouchant on his land ; and if the claim were for an unlimited number, without these qualifying words, it could not be sup- i:)orted {z). But a person might claim common appurtenant for a certain number, and in such case need not aver that the}^ were levant or eouchant («) . Common of pasture in gross is a right or liberty to depasture cattle, kc, in •another's land, indejDendently of being the owner or occupier of any other land ; and may be granted by deed to a man and Ids heirs, or for life {h). It is not an easement, because not annexed to any dominant tenement ; and there can be no easement, properly so called, unless there be both a servient and a dominant tenement (c). Neither a common appendant nor a common appurtenant for cattle levant and eouchant can be turned into a common in gross, because they cannot be severed from the land to which they appertain without extinguishment ; but a common appurtenant for a certain number of beasts may, for such a grant has no reference to connection of tenure {d). Common pur cause de vicinage, or common by reason of neigh- bourhood, is a libert}^ the tenants of one lord in a town have to [q) Bennett \. Reeve, Willes, 227 ; Tijr- ringhains case, 4 Co. E,. 36 a. (»•) Benson v. Chester, 8 T. R. 396 ; Checsman v. Ilardham, 1 B. & A. 711. (s) Earl of Dunraven v. Llewellyn, 15 Q. B. 791. {t.) Co. Lit. 122 a : 4 Co. R. 37 ; Plow. 161 ; Tudor L. C. Real Prop. Ill (2ik1 ed.). («) Sachcverill v. Porter, Cro. Car. 482 ; Cowlam y. Slack, 15 East, 108 : Fitz. N. B. ISO, N. ; Bac. Abr. tit. Common (A. 2). (x) 2 & 3 Will. 4, c. 71, s. 1. ly) Co. Lit. 122. (z) Benson v. Chester, 8 T. R. 396, 401 ; 4 R. R. 708. («) Tudor L. C. Real Prop. Ill (2nd ed.). (&) Co. Lit. 122 a ; Fitz. N". B. 37 ; 4 Co. R. 30 ; Tudor L. C. Real Prop. Ill, 112 (2nd ed.). (c) Ecmgeley y. Midland E. Co., L. R., 3 Ch. Ap. 306, 310, Lord Cairns, L.J. {d) Bimn v. Channcn, 5 Taunt. 244. Ch.XVIII.s.1. Eiffhts of Common {Fastwe). Common appurtenant. Common in gross. Common by Vicinage. 736 Chap. XVIII. — Eights of Common, Sporting, etc. RigJds of Common {Pasture). €h.XVIII.s.1. enjoy a common of pasture with the tenants of another lord in another town (e). It can only be claimed by grant, or by prescrip- tion from time immemorial, or by user for sixty or thirty years under 2 & 3 Will. 4, c. 71, but not by custom (/). This is not properly a right of common, but rather an excuse for a trespass, and at most but a permissive right, which was originally allowed for the prevention of suits in neighbourhoods where a boundary could not easily be established (r/). It exists where the tenants of two lords have used, time out of mind, to have common promiscuously in both lordships, lying together and open to one another {h) ; it is therefore necessary that these adjoining lands should both be com- monable {i). It seems that common pur cause de vicinage may also exist between the proprietors of neighbouring lands, though there are no commons on either side {k) ; and the lord of a manor may have, in respect of the waste or common land in his own manor, a right to turn his own cattle upon the common of an adjoining manor (/,). Every common pur cause de vicinage is a common appendant (m). Where one of two adjoining commons, with common of vicinage, was enclosed and fenced oft' by the owner of the soil, leaving open only a passage sufficient for the highway which led over the one to the other ; yet as the separation was not complete so as to prevent the cattle straying from one to the other by means of the highway, it was held, that the common by vicinage still continued (ii). There is frequenth' a mutual right of interconnnoning between the owners of the land in open common fields : the extent of this right and the mode of exercising it varies according to the custom which has prevailed among the occupiers of such land. Where, however, there is no custom which has become binding upon the parties, the common law rule appears to be, that those persons only who are owners of land within an open common field are entitled to enjoy the right of intercommoning ; and such right can be exercised at those times only when the corn is oft" the land, that is, after all tlie corn and grain have been reaped and gathered, and before any more has been sown (o). Common of Pasture in Common Fields. (e) Co. Lit. 122 a ; Jones v. Rohin, 10 Q. B. 620, 632. (/) Jones V. Robin, 10 Q. B. .587, 620 ; Clarke v. Tiiiker, Id. 604; Prichard v. Poivdl, Id. 589, 603. [g) Co. Lit. 122 ; R. 2a; Willes, 32 ; Bac. Abr. tit. Cominon (A. 4). [h) 8 Co. R. 78. (i) Heath v. Elliott, 4 Bing. IST. C. 838. {k) Jones V. Rohin, 10 Q. B. 581, 620. [l) Earl of Sefton v. Court, 5 B. & C. 917. (vi) 1 Danv. Abr. 799. (n) Giillett V. Lopes, Bart., 13 East, 348. As to distress, see Cajie v. Scott, L. R. 9 Q. B. 260, and 733 (5), ante. (0) Chcesman v. Hardham, 1 B. & A. 706 ; Musgrave v. Cave, Willes, 319. Sect. 1. — Eights of Common (Turbary and Estovers). 737 (c) Common of Turbary. Ch.XVIII.s.1. Rights of Common of turlirtiT is a right or liberty to dig turf upon the Common ground of another, or in the lord's waste : this common is appen- . ^ '" ^'^^' . dant or appurtenant to a house, but not to lands, for turves are ^"f^ture of ^ '■ . Common ot to be burnt in the house {p). It may also be in gross, or may be Turbary. p;ranted expressly with other land (g). It does not give any right to the land, trees or mines ; nor can it exclude the owner of the soil {r). A custom that all customary tenants of a manor having gardens, parcels of their customary tenements respectivel}^ have imme- niorially, b}' themselves, their tenants and occupiers, dug, taken and carried awa}' from a waste within the manor, to be used upon their f^aid customary tenements, for the purpose of making and repairing grass plots in the gardens, parcels of the same respectively, for the improvement thereof, such turf covered with grass, fit for the pasture of cattle, as hath been fit and proper to be so used at all times of the year, as often and in such quantity as occasion hath required, is bad in law, as being indefinite and uncertain, and destructive of the common (s) ; and so is a similar custom for taking and applying such turf for the purpose of making and repairing the banks and mounds in, of and for the hedges and fences of such customary tenements {t). An occupier of a messuage and lands, who has Rushes. common in the lord's waste, may set up a custom to cut rushes, as annexed to his rights of common. (d) Common of Estovers. Common of estovers is a right or liberty of taking necessary wood Xature and for the use and furniture of a house or farm, from off another's Estova's!°° ° land(?f). This right is generally considered as being divided into three distinct species, distinguished from each other by a different " House-bote,_ application of the Saxon word "bote," which is synonymous with J^^? ° ' ' the French " estovers : " thus there is a house-bote, plough-bote and hay-bote. House-bote is a sufficient allowance of wood to build or repair the house, or to burn in it, which latter is sometimes called fire-bote. Plough-bote and cart-bote are wood to be employed in making and repairing all instruments of husbandrv, as ploughs, carts, harrows, rakes, forks, &c. Hay-bote or liedge-bote is wood for repairing hedges or fences, as pales, stiles, and gates to secure enclosures (a:). These botes or estovers must be reasonable, and (j}) Tutlor L. C. Keal Prop. 116 (iud of tenant in common to dig turves, see €d.). Wilkinson y. Hai/garth, 12 q. B. 837. iq) O'Harcx. Faliij, 10 Ir. Com. L. Rep. (t) Beam v. Bloum, 3 Wils. 456 ; 2 W. 318, C. P. Blac. 926. (r) 4 Co. R. 37. {u) Co. Lit. 122 a; 2 Blac. Com. 35; {s) }Vilson \. JFillcs, 7 East, 121; 3 Tudor L. C. Real Prop. 114 (2ud ed.). Smith, 167 ; 8 R. R. 601. As to the right {.v) Wood's Inst. 344. L.T. 47 738 Ch.XVIII.s. Rights of Common {Estovers) ., Nature of Common of Piscary. Chap. XYIII. — PiIGHts of Common, Sporting, etc. ^' an}' tenant, except a strict tenant at will, may take them off the land demised to him without leave of the lessor, unless he be restrained _ by special covenant to the contrary (_?/). House-bote, hay-bote and fire-bote belong to a termor of common right, and he may take wood for the same ; but if he take more than is needful he may be punished for waste {z), as if he cut down wood to burn, when he has sufficient dead wood. Although the tenant may cut down and take sufficient wood to repair walls, palings, fences or hedges as he found them, yet he cannot do so to make new ones (a). If a man have common of estovers by grant, he cannot build new houses to have common of estovers for those houses {h). Common of estovers cannot be appendant to land, but it must necessarily be to a house to be spent there (c). (e) Common of Piscary. Common of piscary is a right or liberty of fishing in another man's w\ater {d). It can only exist in streams which are not navigable, for the sea and all navigable rivers are open to all the king's subjects {e). It is a profit a pl-endre and not a mere easement nor an interest in land (/). It may be either appendant, appurtenant or in gross (r/). It may exist by grant, or by prescription from time immemorial, or by user for thirty or sixty years under the Prescription Act (/<), but not by custom (?). So a custom for all the inhabitants in a parish to use a footpath for angling with rods and lines for fish in the daytime, for recreation only, and not profit, is bad, as setting up a custom to take a profit a prendre in alieno solo {k). Common of piscary, to the exclusion of the owner of the soil, is contrary to law ; though a person by prescription may have a separate right of fishing in such water, and the owner of the soil will be excluded Q) : for a man may grant the water without passing the soil. If one grant a separate fishery, neither the soil nor water pass, but only a right of fishery ((>n) . I (?/) Fitz. N". B. 59, M. ; Co. Lit. 41. (•:■) Termes de la Ley, 887, 396. («) Co. Lit. 53 ; Wood's Inst. 525 ; 9 Co. R. 113. {h) Fitz. N. B. 180, H. ; Arundel v. Stcere, Cro. Jac. 25. (c) Co. Lit. 121 b ; Fitz. K B. 180. C. b; Tudor L. C. Heal Prop. 115 (2nd ed.). {d) Tudor L. C. Real Prop. 114 (2nd ed.). (e) Warren v. Matthews, 6 Mod. 73 ; Bcgotl V. Orr, 2 Bos. & P. 472. (/) Herbert v. Daughluyn, Cro. Car. 492 ; Wickham v. Hawker, 7 U. & W. 63. (r/) Tudor L. C. Real Prop. 114 (2nd ed.). (h) 2 & 3 Will. 4, c. 71, s. 1 ; JFickJum V. Haivker, 7 M. & W. 63. [i) Lloyd V. Jones, 8 C. B. 81, 89 ; 5 D. & L. 784. {k) Bland v. Lipscombe, 4 E. & B. 713, n. (c). {I) Co. Lit. 122 a. {m) Bac. Abr. tit. Piscary. Sect. 1. — Eights of Common (Appkovement). 739 (f) Approvement of Common. Cn.XVIII.s.l. The lord of the manor or the owner of the soil and freehold, or Bights of Common {-dp- his grantee or any person seised in fee of part of the waste {n), may provement). inclose and approve part of a common against tenants having common Loj-^ ^^5- of ijasture, notwithstanding they have also some other right on the "iclose o ^ ™ . Common common, as a right to dig for sand, kc, if he leave siifncient common against of pasture (0) ; and this may be done by an owner pur autre vie of ^6"^^^^^- the common {p). There must be a sufficiency of common left for the commoners iq), Sufficiency of and the onus of proving that a sufficiency was left lies with the be left for lord (r). Besides the lord, an 3^ person who is seised in fee of part Commoners, of a waste within a manor may approve, leaving a sufficiency of ^^^^ ^' common. The lord, however, has not an unlimited right to inclose parts of a common without the consent of the homage ; for an un- limited custom for the lord to inclose parts of a common and grant them in severalty, without the consent of the homage, is bad, being inconsistent with the rights of the commoners (s) ; although a custom for the lord, with the consent of the homage, to grant parts of a common for building is good (t). even in exclusion of the com- moners (») ; but a custom for the lord to grant leases of the waste of a manor, without restriction, from time immemorial cannot be pre- sumed, and is bad in point of law (r). A custom for one commoner to inclose against another is good (y) ; and such a custom does not abridge the common law right of the lord to inclose (z). Where a part and not the whole of a common has been inclosed, a commoner, in asserting his right of common, may throw down the whole of the hedge erected on tlie common ; and a plaintiff in trespass cannot recover against him on a new assignment, because he had thrown down more than sufficient to admit his cattle (a). If there be a custom within a manor for a lord to grant parcels of the waste by copy of court roll, the premises granted in that mode are well described as copyhold premises, although the date of the grant be modern {b). In one case it api^ears to have been supposed that there can be no Against what approver in derogation of a right of common of turbary (c) : but that Common there may he (71) Glover v. Lane, 3 T. E. 445 ; 1 (s) Arlett v. Ellis, supra. Approver. R. R 737. (0 Folkard v. Hemmett, 5 T. R. 417, n. (0) 20 Hen. 3 (Statute of Merton), c. 4 ; («) Boulcot v. Winmill, 2 Camp. 261 ; 13 Edw. 1, Stat. 1 (Westm. 2), c. 46 ; 3 &|4 11 R. R. 710. Edw. 6, c. 3 ; 2 Inst, 87 ; Strickland v. [x] Badger v. Ford, 3 B. & A. 153 ; 22 Faiucett, Willes, 57 ; Shakespeare v. Fejjpin, R. R. 331. 6 T. R. 741 ; 3 R. R. 330. (y) Barber v. Bixo7i, 1 AVils. 44. (p ) Patrick V. Stjcbbs, 9 M. & W, 830, (;) Duhcrhj v. Farje, 2 T. R. 392, u. (?) Arlett V. Ellis, 7 B. & C, 346 ; 9 id (a) Arlettv. Ellis, 7 B. & C. 346 ; 9id. 764. 671 ; Lascelles v. Lord Onslow, 36 L. T, {b) Ld. Northivick v. Stanica^j, 3 Bos. 459. & P. 346. (r) Arlett v. Ellis, supra ; Lake v. (c) Grant v. Gunner, 1 Taunt. 435 ; 10 Plaxton, 10 Exch, 196. R, R. 562. 47—2 740 Chap. XVIII. — Eights of Common, Sporting, etc. Ch.XVIII.s.I. Rights of Common (Ap- provement). Encroach- ment on the Waste. For whose Benefit the Encroach- ment is made. case has been misunderstood ; it was lost by mispleading, and the above point was not decided. It has since been held that the lord may inclose parcels of a waste against a right of common of tm-bary, if he leave a sufficiency of common for turbary, kc. (d). A custom for the owner of a waste to set out to the owners of certain ancient messuages portions of the waste, to be by them held in severalt}' for getting turves therein, and when the portions set out are cleared of turves, for the owners of the waste to inclose and approve such por- tions, to hold at their pleasure in severalty for ever, freed of all common of turbary, and pasture, is good (e). The lord, however, has no right, under the Statute of Merton, to inclose and approve the waste of a manor, where the tenants of a manor have a right to dig gravel on the waste and to take estovers (/). If an encroachment upon the waste be suffered to remain for twelve years, it gives a title to the land to the part}' who has made the encroachment, who may dispose of it by will or otherwise (g) ; twelve years' adverse possession of a waste inclosed is a bar to the entry of a commoner ; the lord's right of entry for a forfeiture is barred after twelve years by the Heal Property Limitation Act, 1874(/0. If a licence be given bj' a commoner by parol to build a cottage on a common, which is accordingly executed, he cannot maintain an action for the encroachment, although no sufficient common remains (/). When a lessee encroaches on the waste during his term, and is suffered to remain in uninterrupted possession, it is now settled that it shall be considered prima facie that the encroachment was made for the benefit of the tenant during his term, and afterwards of his lessor, (except as against third persons (k),) unless it appears clearly by some act done at the time, that the tenant intended the encroach- ment for his own benefit, and not to hold it as he held the farm to which it was adjacent {!). He is, therefore, bound to deliver up the land taken from the waste of his lessor at the end of his term, with the rest of the premises demised (/;?) . id) Arlett v, Ellis, 7 B. & C. 336 ; 9 id. 671. {e) Clarkson v. IVoodhousc, 5 T. E. 412, n. ; 3 Dong. 189 ; Place v. Jackson, A I). & R. 318. (/) Duhcrhj v. Paqc, 2 T. R. 391. (V) Ashcr V. WhitclocTc, 35 L. J., Q. B. 17 ; 11 Jur., N. S. 925. (/i) See Doe d. Tarrant v. Hellicr, 3 T. R. 162 : 1 R. R. 680 : Whitton v. Peacock, 8 Myl. & K. 325. (i) Harvey v. Reynolds, 1 C. & P. 141 ; Perry v. Fitzhoice, 8 Q. B. 757. (k) Doe d. Raddeley v. Masscy, 17 Q. B, 373 ; Doc d. Croft v. Tidbury, 14 C. B. 304. [l) Post, Chap. XX. [m) Bryan d. Child v. Winicood, 1 Taunt. 208 ; Doc d. Watt v. Morris, 2 Bing. K. C. 189 ; post, Chap. XX. Sect. 1. — Eights of Common (Inclosure). 741 (g) Inclosure of Common. Ch.XVIII.s.1. mi -1 f ^ • ^ ^ cc )> Ttiqllts of IJie inclosure oi commons, otnerwise than by approvement Common can only be effected by the authority of parliament ; or b}" a special {l»dosure). agreement under seal between the lord and all the copyholders, Local Inclo- under which the allotments wdll become of freehold tenure {n). But it is generally impracticable to procure the consent of all copyholders, especiall}^ where there are trustees, or persons under the disability of infanc}' or coverture, or having any limited estates. Local inclosure acts are very numerous, and formerly were very long and special; but in 1801 a general act was passed (41 Geo. 3, c. 109), intituled "An Act for consolidating in one Act certain Provisions usually inserted in Acts of Inclosure, and for facilitating the Mode of Proving the several Facts usuall}^ required on the passing of such Acts." This was followed by very many others on the same subject (o). Sect. 2. — Rigid of Way. (a) Private Ways. "Nothing is more clearly established," it has been said by Bacon, V.-C, "than that a person to whom land is demised cannot by its use and enjoyment acquire an easement in it, distinct from the use and enjoyment of such land, against his landlord ; and it is further clearly established law that the tenant cannot acquire any such right while a unity of possession in the subject demised and in the easement claimed subsists in the same person" {p). A private right of way is a mere easement over the soil of another, and not an interest in the land itself {q). The presumption that the soil of a road usque ad medium filum rue belongs to the owners of the adjoining lands applies equall}^ to a private as to a public road (;•)• A private wa}' may be either a footwa}', a horseway, or a cartway is). It is susceptible of almost infinite variet}', according to the extent of the grant, express or implied, and of the user where no deed is j)ro- duced {t). Thus, it may exist for agricultural purposes only («) ; or for the carriage of coals only {x) ; or for the carriage of all articles except coals (?/). A right of way for carts and carriages does not Tenant cannot acquire an Easement against his Landlord. Outram v. Maude. Nature of Rights of way. Limited Right of Way. (?0 rainc y. Rijdcr, 24 Beav. 151. (o) See the whole series of Acts, Chitty's Statutes, tit. Inclosure. ip) Outram v. Maude, 17 Ch. D. 391; 50 L. J., Ch. 783 ; 29 W. R. 818. {q) Godley v. Frith, Yelv. 159 ; HcwUns V. Hhippam, 5 B. & C. 221. (r) Hohiics V. Bcllinqham, 7 C. B., N. S. 329 ; 29 L. J., M. C. 132 ; Smith v. Howden, 14 C. B., N. S. 398. (s) Co. Lit. 56 a ; Gale, 317 (4th ed.). (0 Gale, 316 (4th ed.). [u) Reignold v. Edicards, Willes, 282 ; Jackson v. Stacey, Holt, N. P. C. 455 ; England v. Wall, 10 M. & AV. 699. {x) Iveson v. Moore, 3 Ld. Rayrn. 291 ; 1 Salk. 15. (?/) Marquis of Stafford v. Coyney, 7 B. & C. 257 ; Jackson v. Stacey, Holt, N. r. C. 455 ; 17 R. R. 663. 742 Chap. XVIII. — Eights of Common, Sporting, etc. Ch.XVIII.s.2. Might of Way (Frivate). Eeasonable User of Right of Way. Claim of Right of "Way by User, or Prescription. necessarily include a right of way for horned cattle ; but the extent of the right is a question for the jury upon the evidence of user, &c. (z). So proof of user of a way for farming purposes does not necessarily prove a right of way for the purpose of conveying coal, the produce of a mine l3'ing under the defendant's land {a). So, proof of a right of way for the purpose of carting timber will not support a plea of right of way for all carts, carriages, horses, and on foot ; or even amount to proof of any one of those rights taken separately, so as to admit of the verdict being entered distribu- tively(6). So a reservation in a lease of a right of way on foot and for horses, oxen, cattle and sheep, does not include a right to lead manure (c). "Where premises are demised or conveyed " with a right of way thereto," it may be a question for the jury what is a reasonable use of such right (d). A., having a right of way to a close, demised the close to B. by a parol demise, not mentioning the right of way. B. being possessed of an adjoining close upon which he was erecting certain houses, used the way for carting building materials to A.'s close, for the purpose of using them upon his own adjoining land; — held, that it was properly left to the jury to say whether B.'s use of the road was a bona fide exercise of the right of way to A.'s close, or a mere colourable mode of getting to his own land (e). AVhere a right of way was expressed to be "through the gateway " of the plaintiff (which gateway led to other premises of the plaintiff), and, at the time of the lease, carts could come in to load and unload and turn round and go out again, but through alterations of the premises could not now do so without slightly trenching upon the plaintiff's premises : held, that in the reasonable use of the right of way the defendants had a right to do this, and that what was a reasonable user was for the jury {(• (Private). hmdlord, the tenant of one of the houses acqun-ed a right of way to ■ his vaults through the adjoining vaults. The landlord sokl both jsroperties at one sale, with a condition that they were to be subject to, and with the benefit, as the case might be, of all subsisting rights or easements of way or passage, so far as any lot might be affected thereby : lield, that the vendor being subject to no liability as to right of way, the purchaser of one tenement could not enforce a right of way as against the other (a). A right of way may also arise by act and operation of law : for if Private Ways a man grant a piece of ground in the middle of his field, he at the ° ^^^^^^^ y- same time tacitl}- and impliedly gives a way to come at it {h) ; and the grantee may cross the grantor's land for that purpose without being a trespasser. And it is the same though the close aliened be not totally inclosed by the grantor's land, but partly b}' a stranger's, for the grantee may not go over the stranger's land (c). The lessee of an inner close has by necessity a right of way, suitable to the business for which the lease was made, over an outer close which belongs to the same landlord ; but the lessee of one close cannot as such by user acquire an easement over another close which belongs to the same landlord {d). When the law gives anything it gives impliedl}^ whatsoever is necessaiy for enjoying the same {e) ; there- fore when one (even as trustee) conveys land to another, to which there is no access but over the grantor's land, a right of way passes of necessity, as incidental to the grant (/) ; so also, if the owner of two closes, having no way to one of them but over the other, part with the latter without reserving the way, it seems that it will be reserved for him by operation of law {g). A lessor demised a messuage, consisting of two parts, separated by intervening reserved land, subjected only to a specific right of way for the lessee to a third building, for a specific purpose, which reservation, strictl}' interpreted, would preclude him from all access to the one part, which was accessible only by crossing the reserve land in one of two directions, the one by entering it from the residue- of the demised premises, the other, and far the more convenient, by entering it from the public street : it was held that the lessee was entitled to a {z) Tomlin v. Fvller, 1 Ventr. 48. App. 133. (a) Daniel v. Anderson. 31 L. J., Ch. (e) Hobart, 234. 610 ; White v. Bass, 7 H. & N. 722 ; 31 (/') Hoicton v. Frcarson, 8 T. R. 50 ; 4 L. J., Ex. 283 ; Scott v. Sykcs, 2 F. & F. R. R. 581. 191 ; Dodd v. Burchell, 1 H. & C. 113 ; [g) Pomfret v. Ricroft, 1 Wins. Saund. Suffield V. Broicn, 33 L. J., Ch. 249. 321, n. (6) ; cited L. R., 4 Ch. App. 135 ; (6) OldfieUVs case, Koy, 123 ; 2 Roll. Clarke v. Coc/ge, Cro. Jac. 170 ; Owen, Abr. 60, pi. 17. 122 ; Staple v." Hcydon, 6 Mod. 1 ; Chichester (c) 2 Roll. Abr. 60. v. Lethhridge, Willes, 72, note ; Hoxcton v. (d) Gayford v. Moffatt, L. R., 4 Ch. Freurson. 8 T. R, 50 ; 4 R. R. 581. 746 Chap. XVIII. — Piights of Common, Spoeting, etc. Ch.XVIII.s.2. Right of Way {Private). Way of Necessity, limited by Necessity which created it. Ways under Leases made pursuant to Act of Parliament. way across the reserved land from the public street in that part (//). B}^ a lease of a house, with all appurtenances, a right of way necessary for the convenient occupation of such house and previously enjo^'ed by the tenant will pass (/). If a waj' granted by a lease cannot be used b}" reason of its passing over the land of a third person, and there is no other way to the lessee's house, he is entitled to a way of necessit}' to the nearest highwa}' by the shortest line across the grantor's land {k). A wa}' of necessity is limited by the necessity Avhich created it, and when such necessity ceases, the right of way also ceases (?), but it exists after unity of possession of the close to which and the close over which it runs, and after a subsequent severance {m). A private estate act, enabling tenants for life to grant building leases, empowered the lessors to lay out and appropriate any part of the land authorized to be leased as and for a way, street, square, passage, sewer, or other conveniences, for the general improvement of the estate, and the accommodation of the tenants and occupiers ; held, that exclusive private rights of way over land so appropriated for a wa}' might be granted to particular lessees, and that tenants under other leases granted in pursuance of the powers of the act, but containing no grant by deed of a right to use such ways, were not entitled by the provisions of the statute to use them {n). Nature of Rights to Light aud Air. 2 & 3 Will. 4, c. 71, s. 3 : The Prescrip- tion Act. Sect. 3. — Lights. The right to the reception of such light and air as fall perpcn- dicularhi on a man's land is a natural right of property incident to the land, and not a mere easement over the land of another : but a right to the reception of light and air, without obstruction, in a lateral direction over the land of another is an easement (o). By the Prescription Act, 1832, 2 & 3 Will. 4, c. 71, s. 3, " when the access and use of light to and for any dwelling-house, work- shop or other building shall have been actually- enjoyed therewith ( j>) {1i\ Morris v. Ed^ington, 3 Taunt. 24 ; 12 R. R. 579 ; Wilson v. Bagshaw, 5 ilan. & K. 448 ; Osborne v. IVise, 7 C. & P. 761. {i) Hinchdiffc v. Earl Kinnoul, 5 Bing. N. C. ] ; Fhci/saj v. Vicnri/, 16 U. ic W. 484 ; Kavantt(/h v. Coal Mining Co. of Ire- land, 14 Ir. Com. L. R. 82, Q. B. But it is otlierwise where the way is not mentioned and not absolutely necessary ; Dodd v. Burchall, 1 H. k Colt. 113 ; 31 L. J., Ex. 364 ; and see Djicr v. Carter, 1 H. & N. 916 ; Worth! nqlon v. Gimson, 2 E. & E. 618; 29 L. J., Q. B. 116; Pearson v. Spencer, 1 B. & S. 571 ; 3 B. & S. 761 ; Polden V. Bastard, 4 B. & S. 258 ; 11 W. R. 778 ; 14 Id. 199. (k) Osborne v. Wise, 7 C. & P. 761. (/) Holmes V. Goring, and Same v. Elliott, 2 Bing. 76. (m) Buckby v. Coles, 5 Taunt. 311 ; 1'. R. R. 508. (n) White v. Leaon, 5 II. & N. 53 ; 29 L. J., Ex. 105. (o) Gale, 300 (4th ed.) ; Tudor L. C. Real Prop. 168 (2nd ed.). (;;) The words " as of right" are here puri)osely omitted ; Flight v. Tliomas, 11 A. & E. 695. II Sect. 3. — Lights. 747 for the full period of twenty years, without interruption, the right Ch.XVIII.s.3. thereto shall be deemed absolute and indefeasible, an^"" local usage Lights. or custom {q) to the contrary notwithstanding, unless it shall appear that the same was enjoyed b}^ some consent or agreement expressly made or given for that purpose (/•) b}' deed or writing." This section puts the right on a simple foundation, and with the Decisions, simplest exception (s). The enjoyment for the requisite period may have been partly before the passing of the act, the enactment being retrospective {t). The enjoyment need not be adverse (u). The right may be gained by user for twenty years, although by permis- sion orally given {x); but not by user under a consent or agreement by deed or writing (^). The mere payment of rent for the use of light is not an "interruption" within the meaning of sect. 4 {z). A user for twent}' years will create a right, though interrupted by inteiwals of suspension, occasioned by a unity of jDossession, such intervals being excluded from the computation (a). But where the dominant and servient tenements were for sixty years in the occupa- tion of the same person as tenant thereof respectiyely ; it was held, that no right to light was acquired, the enjoyment of the light during that period not being as an casement {h). Where, by lease for 999 years of a jilot of building land, with a Building house erected by the lessee under a building agreement, the lessor demised the house and land "and all rights and appurtenances, except rights restricting the free use of any adjoining land, or the conversion or appropriation at any time of any land for building or other purposes, obstructive or otherwise," it was held by the Court of Appeal that the reservation was not an agreement within the proviso of sect. 3, and, therefore, did not prevent the lessee from acquiring a right to light under the act (e). Where two houses are held b}^ different tenants under the same Two Houses landlord for long terms granted and expiring at the same time, b}^ ^^^q same" twent}" years' user during such terms one tenant acquires as against -Landlord. the other an indefeasible right to the light (d) But whether such f/!ff^ ^- {q) This destroj's tlie custom of the city of London to buiM on ancient foundations to any height, notwithstanding the obstruc- tion of ancient liglits ; Crofts v. Haldane, 8 B. & S. 194 ; L. K., 2' Q. B. 194; 36 L. J., Q. B. 85. (r) lirulges v. Blanchard, 1 A. & E. 536 ; Blanchard v. Bridges, 4 A. & E. 176. (s) Per Coleridge, J., in Merchant Taylors' Co. v. Truscott, 11 Exch. 863. {t) Simper v. Foley, 2 Johns. & H. 555. (m) Tickle V. Broivn, 4 A. & E. 369. (x) Mayor, tLc, of London v. Pewtercrs' Co., 2 Moo. & R. 409. {y) Sect. 3, supra. (z) Plnstcrers'' Co. v. Parish Clerics' Co.. 8 Excii. 630 ; Ptocjers v. Taylor, 2 H. & N.' 828, 833. (a) Thomas v. Thomas, 2 C, M. & R. 34 ; Simper v. Foley, 2 Johns. & H. 555. (6) Harhridge v. Warwick, 3 Exch. 552. (c) Mitchell v. Cantrill, 37 Ch. D. 563; 58 L. T. 29 ; 36 W. R. 229— C. A. [d) Freiren v. Phillips, 11 C. B., N. S. 449 ; Mitchell v. Cantrill, 36 W. R. 229— C. A., and note (c), sujira. 748 Chap. XYIII. — Eights of Common, Sporting, etc. Ch.XV^III.s.3. right would continue as against the hmdlord or his assigns after the ^'^9'hts. expiration of the terms may be doubted if). Period of A user for nineteen years and a fraction gives an inchoate right, which cannot be defeated by any subsequent interruption within one year next before the action (/); but in such case the full period of twenty years shoukl be allowed to elapse before the commencement of an}' action for disturbance of the right ; and the action must be brought before the interruption lias continued for one year. "Where windows were shown to have existed twenty years, it was held that proof that they did not exist twenty-two years before the obstruction was insufficient to defeat the action (r/). AVhen a house is partly built and the windows put in, the twenty years begin to run, not- withstanding the house is not completed or made fit for habitation until several years afterwards (/i). Although the twenty years' user must be next before some suit or action wherein the claim to the right to light is brought in question, it need not be next before the pending suit or action (i). Amount of In order to establish the right to the access of an extraordinary ° ■ amount of light necessary for a particular purpose or business to an ancient window, open, uninterrupted and known enjoyment of such light in the manner in which it is at present enjoyed and claimed must be shown for a period of twenty years (A). The owner of ancient lights is entitled, not only to sufficient light for the purposes of his then business, but to all the light which he had enjoyed previously to the interruption complained of (/). There is no distinction between the right to light and air in regard to town houses and country houses (fo- llow lost— by Alterations in windows by merely enlarging them, without changing their character or position, do not destroy the right to light and air through that part of the aperture Avhich is old {n). Even opening new windows which cannot be obstructed without at the same time obstructing an ancient window will not justif}' or excuse any obstruction of such ancient window (o). (c) Daniel v. Anderson, 31 L. ,T., Cli. 14 L. T. 151 : 14 W. R. 618. 610 ; WUte v. Bass, 7 H. & N. 722 ; 31 (/«) Marlin v. Headon, L. R., 2E(i. 425 ; L. J., Ex. 283. Semble, that it would ; 35 L. J., Ch. 682. see Simper v. Foley, 2 Johns. & H. 555. (n) Tapling v. Jones, 11 H. L. Cas. (/) Fiight V. Thomas, 11 A. & E. 688. 29U ; 34 L. J., C. P. 342 ; Garrett v. Sharp, (g) Pcnwarden v. Ching, Moo. & M. 3 A. & E. 325 ; Blanchard v. Bridges, 4 400. A. k E. 191, 192. (h) C'oiirtauld v. Legh, L. R., 4 Ex. 126. (o) 'failing v. Jones, supra ; overruling {i) Cooper \. Huhhuck, 12 C. B., N. S. Renshaw v. Bean, 18 Q. B. 112, aud 456 ; 31 L. J., C. P. 323 ; Bcylugh v, Hutchinson v. Copcslake, 8 C. B., N. S. Cassidy, 16 W. R. 403, Ir. Exch. 102 ; 9 id. 863 ; and see Binckes v. Fash, {k) Lanfranchi v. Mackenzie, L. R., 4 11 C. B., N. S. 324, which may also be E(|. 421 ; 36 L. J., Ch. 518. considered as overruled on this point. (0 Yates V. Jack, L. R., 1 Ch. Ap. 295 ; Sect. 3. — Lights. 749 It was held in Barnes v. Loach (j)) — a case of the first impression — that the implication of a grant of lights upon the alienation to different persons of tenements previously in the ownership of the same person is not prevented hy the fact that the dominant tenement at the time of the alienation is in lease, and consequentlj' not in the possession of the alienor. In Master v. Hansard (q), the owner of an estate granted a lease of a plot of ground to A. (with a huilding upon it known as the Crystal Palace Hotel), who covenanted not to do anything on the demised premises which should be an annoyance to the neighbour- hood or to the lessor or his tenants. Some years afterwards the same owner granted a lease of an adjoining plot to 13., who entered into a similar restrictive covenant, but had no notice that such covenant was contained in A.'s lease also. Within twenty years A. commenced, by building operations, to darken the windows of B.'s house. It was held by the Court of Appeal, that B. could not prevent this being done, the restrictive covenants being for the benefit of the landlord, and not of the tenants. General words in a grant must be restricted to what the grantor had power to grant at the date of it. Therefore, where the defendant, having a term for four years in premises over which light came to the premises demised to plaintiff, "together with all lights," &c., for twenty-one years, bought the first-mentioned premises at the end of the four years, it was held that the defendant might destro}" the light (r). A right to light under the Prescription Act, 1833, 2 & 3 Will. 4, c. 71, s. 3, may be lost by blocking up the windows for one year, and discontinuing to use them during that period (s); but a connuon law right to light is not so readil}' determined. It may be lost by twenty j'ears' non-user (t). It ma}' also sometimes be lost by an abandonment of the right for less than twenty years, provided the jury find that the party thereby manifested an intention of per- manently abandoning his right to the light, or that the lights had been kept so closed as to lead the owner of the adjoining land to alter his position, in the reasonable belief that the lights had been permanently abandoned («). It seems doubtful whether the Cii.XVIII.s.3. Lights. Dominant Tenement under Lease at Time of Severance of Ownership. Barnes v. Loach. Disposition hy Owner of Two Tenements. Master v. Hansard. Restriction of General AVords. By Non-User, or Abandon- ment. [p) Barnes v. L.oa<:h, 4 Q. B. D. 494 ; 48 L. J., Q. B. 756 ; 41 L. T. 278 ; 28 W. R. 32. . {q) Master v. Hansard, 4 Cli. D. 718 ; 48 L. J., Ch. 505 ; 36 L. T. 535 ; 25 AV. R. 570, C. A. From a perusal of the judgments it does not seem that B. would have succeeded if he had had notice of A.'s covenant at the time of entering into his own. (r) Booth V. Alcock, L.' R., 8 Ch. 1663; 42 L. J., Ch. 557; 29 L. T. 231 ; 21 AV. R. 743. (s) Ante, Sect. 1 (a) ; but see Tapling v. Jon^s, 11 H. L. Cas. 290 ; 34 L. -J., C. V. 342, in which the right given by statute after twenty years' user is considered as secure and permanent as a right at common law. (0 Laicrencc v. Ohcc, 3 Camp. 514 ; 14 R. R. 830 ; Moorev. Rawson, 3 B. & C. 332. {u) Stokoe V. Singers, 8 E. & B. 31 ; 26 L. J., Q. B. 257. 750 Chap. XVIII. — Eights of Common, Sporting, etc. Ch.XVIII.s.3. Lights. Action by either Laud- lord or Tenant. Evidence. Injunction against Con- tinuance of Injury. manifestation of an intention to abandon the lights communicated to the owner of the adjoining land would destroy the right, until such owner altered his position, and incurred expense or loss in reliance thereon (r). But an abandonment is effectual when com- municated and acted on {x). Either the tenant in possession or the reversioner may sue for an obstruction to lights (?/). To prove a right under the statute there must be evidence of a continuous uninterrupted user in each year for twenty j^ears next before action {z), or at all events a user commencing more than twenty years before action, and continued without inteiTuption to within one year next before action {a). The issue is upon the user and not upon the right (Jb) ; but where a grant is pleaded the issue is upon the grant as alleged, and not upon the user or non-user during the last twenty years, which is merely matter of evidence (f) . There must also be evidence of some sensible and material obstruction of the light and of the damage thereb}^ occasioned to the plaintiff {d). In an action for obstructing lights, the plaintiff may claim an injunction against a continuance of the injury [e). Definition of a Watercourse. Sect. 4. — Watercowses. A watercourse means water flowing between banks more or less defined. To constitute a Avatercourse in which rights may exist, or may be acquired by user or otherwise, the flow of water must possess that unity of character by which the flow on one person's land can be identified with that on his neighbour's land. AVater wdiich squanders itself over an indefinite surface is not a watercourse, nor a proper subject-matter for the acquisition of a right by user (/). But the moment the water of a spring runs into a definite channel, it constitutes a watercourse (g). All accessions to such stream, from whatever source, form part of it (li). Where the question at the trial is whether there is a watercourse or not, the judge ought, before he leaves that question to the jury, to instruct them as to what constitutes a " watercourse " in law (i). {v) See note («) on p. 749. («) Heg. V. Chorlcy, 12 Q. B. 515, cited 8 E. & B. 37. iy) Jcffcr V. Gifford, 4 Bur. 2141 ; and see Chap. XIX., post. (s) Lowe V. Carpenter, 6 Exch. 825. (a) Flight v. Thomas, 8 CI. & F. 231. (b) Davics v. Williams, 16 Q. B. 546 ; Battishill v. Reed, 18 C. B. 698, 703. (c) Ward v. Ward, 7 Excli. 838 ; 21 L. J., Ex. 334. (d) Manning V, Grcsham Hotel Co., Ir, K., 1 Ch. 115. (e) See further as to injunctions, post. Chap. XIX. (/■) Briscoe v. Drought, 11 Ir. Com. L. R. 250 ; FMwstron v. Taylor, 11 Exch. 369 ; Broadbent v. Ramsbottom, id. 602, 615 ; 25 L. J., Ex. 115. (r/) Dudden v. Guardians of Glutton- Union, 1 H. & N. 627, (h) Wood V. Waud, 3 Exch. 748, (?■) Briscoe v. Drought, 11 Ir. Com. L. R. 250 ; and see Elliott v. South Devout R. Co., 2 Exch. 725 ; Cashell v. Wright, 6 E, & B, 891. Sect. 4. — Watercourses. 751 Flowing water is publici juris, not in the sense that it is a bonum Ch.XYIII.s.4. A^acans, to which the first occupant may acquire an exclusive right, Watercourses. but that it is public and common in this sense onl}^ that all may Nature of reasonahhj use it irho have a right of access to it : that none can have natural any property in the water itself, except in the j^articular portion Streams. which he may choose to abstract from the stream and take into his possession, and that during the term of his possession only (A). The right to the use of flowing water is clear. Prima facie the proprietor of each bank is the proprietor of half the land covered b}' the stream, ad medium, filnm aqucv, but there is no property in the water. Each proprietor of the land has a right to the advantage of the stream flowing in its naturcd course over his land, and to use the same as he j)leases for any purpose of his own, not inconsistent with a similar right in the proprietors of land above or below ; so that neither can an}' proprietor above diminish the quantit}'^ or injure the quality of the water which would otherwise naturally descend, nor can any proprietor throw back the water without the licence or the grant of the proprietor above (/) ; or a right to do so acquired by prescription from time immemorial, or b}^ user for [40 or 20] years, pursuant to the Prescription Act, 1833, 2 & 3 Will. 4, c. 71, s. 2 (ante, p. 743) {m). Every riparian proprietor has a right to the reasonable use of water flowing past his land, namel}', for his domestic purposes, and for his cattle. He has also the right to the use of the water for anj- other purpose, provided he does not thereby interfere with the rights of the proprietors either above or below him (»)• Subject to this condition a riparian proprietor may dam up the stream for the purpose of a mill, or divert the water for the purposes of irrigation ; but he has no right to interrupt the regular flow of the stream, if he thereby inter- feres with the lawful use of the water by other proprietors and inflicts upon them a sensible injury (o). He has a right by means of water- wheels and machinery, erected by him for that purpose, to pump up water from the stream to a reservoir, and to convey it thence b}- pipes to his dwelling-house upon another estate at a distance from the stream, and there to apply such water to his domestic and other necessarj^ purposes of utility ; provided he takes only a reasonable quantity with reference to the size of the stream and the rights of his {k) Emhrey v. Oiccn, 6 Excli. 369 ; Martyn, 19 C. B., IST. S. 732 ; 34 L. J., Mason v. Hill, 3 B. & Adol. 304 ; 5 C. P. 353. id- 1. {n) Miner Y. Gilmour, 12 Moore, P. C. [1) Mason v. Hill, 5 B. & A. 1, 24 ; 131 ; 7 W. Pu 328, cited L. R., 2 Ex. 9 ; Wrirjht V. Howard, 1 Sim. & Stu. 190, Sampson v. HodcUnott, 1 C. B., N. S. 203 ; 24 R. R. 169 ; Aden v. Blundcll (iu 590 ; 3 id. 596 ; 26 L. J., C. P. 148 ; Ld. error), 12 M. & W. 348, 349. Norhury v. KitcMn, 3 F. & F. 292 ; 9 Jur., (m) Sampson v. Hoddinott, 1 C. B., K S. 132. N. S. 596 ; 3 id. 590 ; 3 id. 596 ; Moore (o) Miner v. Gilmour and Ld. Norlury V. Wcbh, 1 C. B., ]Sr. S. 673 ; Murgatroyd v. Kitchin, supra. V. Hobinson, 7 E. & B. 391 ; Gaved v. 752 Chap, XYIII. — Eights of Common, Spoeting, etc. Ch.XVIII.s.4. neighbour ; but he has no right to take more water by means of the Watercourses, -^y-heels and machinery than he woukl have a right to take other- wise {jt). The proprietor of a watercourse has a right to avail him- self of its momentum as a power which may be turned to beneficial jDurposes ; and he may make a reasonable use of the water itself for domestic purposes, for watering cattle, or even for irrigation, pro- vided it is not unreasonably detained or essentially diminished (g). A riparian proprietor has a right to divert water to a reasonable extent for the purposes of irrigation ; but the extent of such user must depend upon the circumstances of each case. It must not be such as materially to prejudice any proprietor below (r). If a riparian proprietor unreasonably detain the water of a stream for purposes of irrigation, whereby another proprietor lower down the stream is deprived of the use of the water daily for several hours, until it is too late for him to use it for irrigating his land, or for any other laAvful and necessary purpose, he may maintain an action (s). A proprietor of land contiguous to a stream may, as soon as lie is injured by the diversion of the water from its natural course, main- tain an action against the party so diverting it : and it is no answer to the action that the defendant first appropriated the water to his own use, unless he has had twenty years' undisturbed enjoyment of it in its altered course (0- So where the water is improperly heightened and penned and forced back upon the plaintiff's land situate higher up the stream (w). So where the stream is heated or polluted witli the refuse of a mill or works higher up the stream (a). The right to have a stream flow in its natural state, without diminu- tion or alteration, is a natural ricjlit incident to the lyro-perty in the land .through which it passes, and not a mere easement {ij). The owner of such property has a right to have the stream come to him in its natural state in flow, quantity and quality, and to go from him without obstruction, upon the same principle that he is entitled to the support of his neighbour's soil for his own land in its natural state. Such a right in no way depends upon prescription, or the presumed gi-ant of his neighbour, nor from presumed acquiescence of the proprietors above and below {z). By grant, or by prescription (2) ) Ld. Norhimj v. Kitcldn, supra. (x) Wood v. Waud, B Exch. 748 ; (q) Blanchard v. Baker, 8 Greenleaf, Carlyon v. Lovcriiuj, 1 H. & N. 784 ; 258, cited 4 C. B., K. S. 604 ; 6 Exch. irhaleij v. Laing, 2 H. & N. 476 ; 3 id. 365. 675 ; 5 id. 480 ; 26 L. J., Ex. 327; 27 ul. (r) Emhrcy v. Owen, 6 Exch. 353, 372 ; 422; Magor v. Chadivick, 11 A. & E. 571; Ld. Norlmry v. Kitcldn, 3 F. & F. 292. Maso7i v. Hill, 3 B. & Adol. 304 ; 5 id. 1. (s) Sampson v. Uoddinott, 1 C. B., {y) Dickinson v. Grand Junction Canal N. S. 593, 612 ; 3 id. 596 ; 26 L. J., C. P. Co., 7 Exch. 282, 299 ; Chascmorc v. 148 Richards, 2 H. & N. 163 ; 7 H. L. Cas. (i) Mason v. IliU, 5 B. & A. 1 ; 2 N. & M. 349 ; 29 L. J., Ex. 81 ; llaivstron v. Taylor, 743 ; 3 B. & Adol. 304 ; 5 id. 1. 11 Exch. 381, 382. (ti) Saunders v. Newman, 1 B. & A. {z) Chascmorc v. Richards, supra. 258 ;Gale, 220 (4th ed.). I Sect. 4. — Watercourses. 753 from time immemorial, or by user for forty or twenty years, pm'suant Ch.XVIII.s.4 to 2 & 3 Will. 4, e. 71, s. 2 (a), a riparian proprietor may acquire a Watercourses. right to use the water in a manner not justified by his natural right ; but such acquired right is an easement, and has no operation against the natural rights of a landowner higher up the stream, unless the user by which it was acquired affects the use that he himself has made of the stream, or his power to use it, so as to raise the pre- sumption of a grant, and so render the tenement above a servient tenement (b). Nothing short of twenty j^ears' undisturbed possession of water diverted from the natural channel, or raised by a weir, can give a party an adverse right against those whose lands lie lower down tlie stream, and to whom it is injurious ; a possession of above nineteen years is not sufficient (c). A purchaser of land on the banks of a river takes, by his convey- The Alveus ance, the right of ownership of a moiety of the bed of the river ad pj^gj. medium filum aqufe (d). The soil of the alveus is not the common property of the respective owners on the opposite sides of a river ; the shore of each belongs to him as severalty, and extends usque ad medium filum aqute ; but neither is entitled to use it in such a manner as to interfere with the natural flow of the stream (e). A fence or bulwark on the bank is allowable, but the alveus is sacred (/). The mouth of a river comprehends the whole space between the lowest ebb and the highest flood mark (g). The evidence must be similar, mutatis mutandis, to that in actions Evidence. where a right of common is pleaded (/<). The plaintiff may prove his alleged right either by grant, express or implied, or by prescrip- tion from time immemorial ; or by user for forty or twenty 3'ears, pursuant to 2 & 3 Will. 4, c. 71, s. 2 (i) ; or as a natural incident to the ownership of his mill or land. No act of appropriation of the water of a natural stream to a beneficial purpose by means of a mill or otherwise is necessary to entitle the plaintiff to complain of a wrongful diversion of the water from its natural channel (A). Where the plaintiff claims a right to a flow of water " b}' reason of his possession of a mill," but proves a right by reason of his possession of the land on which the mill had been recently erected, he is entitled to the verdict (/). But the usual allegation that the (a) Ante, Sect. 1. (/) Id. (b) Sampso7i v. Hoddinott, 1 C. B., N. S. ((/) Home v. Mackenzie, 6 CI. & Fin. 628. 590; 3 id. 596; 26 L. J., C. P. 148; (h) See Ros. Ev. (13tli ed.), p. 776. Wright v. Williams, 1 M, & M. 77 ; [i) Hale v. Oldroijd, 14 M. k W. 789, Gfreat7-ex V. Hayicard,S 'Exdi. 291 •,CarhjoH 793 ; Northam v. Hurley, 1 E. .& B. 665 ; V. Lovering, 1 H. & Ji. 797. Whitehead v. Parks, 2 H. & N. 870 ; (c) Prescott v. Phillips, cited 6 East, Whaley v. Laijig, id. 476 ; 3 id. 675 ; 27 213. L. J., Ex. 422 ; Xuttall v. Bracewell, 4 (d) Crossley v. Lightoioler, L. R., 3 Eq. H. & C. 714 ; L. R., 2 Ex. 1. 279 ; 2 Ch. App. 478 ; 36 L. J., Ch. 584. {k) Gale, 299. (c) Pickett V. Morris, L. R., 1 H. L. [l) Ricketts v Salway, 2 B. & Adol. Cas. 47 ; 12 Jur., :N'. S. 802. 360 ; Wood v. Waud, 3 Exch. 748, 773 ; L.T. 48 754 Chap. XVIII. — Eights of Common, Sporting, etc. Ch.XVIII.s.4. Watercourses. User not of Right. Action main- tainable, although mode of Enjoyment changed. Saumlers v. Neivman. plaintiff was possessed of mines, lands, &c., is not proved by evidence showing that he was lessee, not of the surface or hanks, but only of mines, with liberty to use the streams for colliery purposes only (m). In case for the diversion of water the plaijitiff alleged in his declaration a reversionary interest in three closes of land — to wit, three ponds filled with water, one pond being upon each of the said closes — and a right to the flow of the water into the said closes for supplj'ing the said ponds in the said closes with water for the Avatering of cattle. The defendant traversed the right to the flow of the water as alleged. It appeared in evidence at the trial that the plaintiff had enjoyed an immemorial right to the flow of this water into an ancient pond in one of his closes, but that, above thirty years before, he made a new pond in each of the three closes, and turned the water so as to supply them, and thenceforth disused the old iiond, which was gradually filled with rubbish and overgrown with grass. The plaintift''s right in respect of the three ponds having been defeated by proof of an outstanding life estate, under 2 & 3 Will. 4, c. 71, s. 7 : held, that he was entitled under this declaration to recover in respect of his right to the flow of water to the old pond {n). Where it appeared in evidence that the channel had been dug about thirty years before action, it was held that a prescriptive right at common law was negatived (o). But in such case the plaintiff may prove a right by user for twenty years ; and if once a user as of right be proved to have commenced, it can be defeated only by subsequent interruptions not submitted to for one year. On the other hand, the defendant may pi'ove that the user was always contentious, and never as of right {p), or that it sprung out of a belief that it was authorized by an expired lease, or out of a " comity between landlord and tenant" {q). The occupier of a mill may maintain an action for any back water and injury to his mill, although he has not enjoyed it precisely in the same state for twenty years : and therefore it is no defence to such an action that the occupier has within a few years erected in his mill a wheel of different dimensions, but requiring less water than the old one (r). *' The owner is not bound to use the water in the same precise manner, or to apply it to the same mill : if he were, that would stop all improvements in machinery " (s). Proof in which Frankum v. Earl of Falmouth, 2 A. & E. 452 ; 6 C. & T. 529, is explained and distinguished. (m) Insole V. James, 1 H. & N. 243. {n) Hale v. Oldroyd, 14 JI. & W. 789 ; and see Brown v. Best, 2 Wils. 174 ; Payne V. Slicddcn, I Moo. & R. 382 ; Drewctl v. Hheard, 7 C. & P. 465 ; Ward v. Ward, 7 Exch. 838 ; 21 L. J., Ex. 334 ; Lo'vell v. Smith, 8 C. B., N. S. 120. (o) Eaton v. Swansea J J'. W. Co., 17 Q. B. 267, 269. (ji) Eaton V. Sivansca W. W. Co., supra. {q) Chamber Colliery Co. v. Hopicood, L. R., 32 Ch. D. 549— C. A. (?•) Saunders v. Newman, 1 B. & A. 258. (s) Id. 261. Sect. 4. — Watercoueses. 755 of a slif];lit alteration by the plaintiff in the course of a stream above Cii. XVIII. s.4, his land is not sufficient to destro}' his right (0- But proof that the ^Vatercourses. defendant, or the person through whom he claims, within twenty years enlarged certain weirs, &c., so as to abstract more icater from the river than he had previously been accustomed to do, whereby the plaintiff's mill was injured, is sufficient ; for although the defendant and his predecessors have on several occasions (long before the last twenty years) enlarged their weirs and deepened their channels, kc, so as to appropriate to themselves as much water from the ri\er as they from time to time wanted, yet that will not justify a further abstraction of water from the river (»). The right of a riparian proprietor, it was clearly established by Artificial Sampson v. Hoddinott, is limited to natural streams, and does not j^'JaiuT attach in the case of artificial cuts or drains (x). It is also settled Sampson r. that the flow of water from a drain made b}' a landowner in his own lioddimtt. land for the purposes of agricultural improvements for twenty years does not give a right to the neighbour, so as to preclude the land- owner from altering the level of his drain for the improvement of his land {y), and that no right can be acquired under 2^3 Will. 4, ■c. 71, s. 2 {z), to the use of an artificial watercourse made for a particular and temporary purpose {a). An artificial watercourse or ■drain, however, ma}' have been originall}' made for permanent purposes, and under such circumstances and have been since used for such a period as to give all the rights that the riparian proprietors would have had if it had been a natural stream {h). In Becston v. JVeate, the plaintiff and the defendant occupied •contiguous portions of lands. For more than forty years, and as far back as living memory went, the occupiers of the plaintiff's land had been in the habit of passing over the defendant's land to a brook which lay on the other side of that land, and of damming up the brook when necessary, so as to force the water into an old artificial watercourse which ran across the defendant's land to the plaintiff's land. They did this for the purpose of supplying their cattle with water, whenever thej'^ wanted the water, except when the owners of the defendant's land used the water, as they did at certain seasons of the3'ear, for irrigation. It was held, that upon this evidence the jury was warranted in inferring a user, as of right, by the occupiers (t) Hallv. Swift, 4 Bing. N. C. 381. 1 E. & E. 1058 ; 29 L. J., Q. B. 145; («) BeaUy v. Shaw, 6 East, 208 ; 8 R. R. Gale, 81 (4th ed.). 466, explained 5 B. k Adol. 19 ; Gale, 216 [y) Grcatrex v. Hayward, 8 Exch. 291 ; (4tli ed.); Mason v. Hill (in error), 5 TVood v. JFaud, 3 Excli. 778. B. & Adol. l; 19 ; Broicn v. Best, 1 Wils. (z) Ante, Sect. 1. 174 ; Moore v. Webb, 1 C. B., N. S. 673. [a) Arkwright v. Gell, 5 M. & W. 203 ; (3j) Sampson v. Hoddinott, 1 C. B., N. S. 11 Exch. 610 ; Gale, 279—287 (4th ed.). ■590 ; 3 id. 596 ; 26 L. J., C. P. 148 (over- (b) Sictdife v. Booth, 32 L. J., Q. B. ruling Magor v. Chadwick, 11 A. & E. 136. ■571) ; and see Wardle v. Brocklchurst, 48—2 756 Chap. XYIII. — Eights of Common, Sporting, etc. Ch.XVIII.s.4. Watercourses. Implied Grant or Reservation of Drains, &c. Licence to make or use Drains, &c. of the plaintiff's land, of the easement on the defendant's land ; and that, for the interruption of such easement, the plaintiff might maintain an action against the defendant (c). Where the owner of two or more adjoining houses sells and conveys one of them to a purchaser, such house is entitled to the benefit, and is subject to the burthen, of all existing drains communicating with the other house, without any express reserva- tion or grant for that purpose : an implied grant or reservation (as the case may require) will be presumed in the absence of express words to the contrary (rf). It makes no difference in this respect that the purchaser did not know of the drains under his house, if he might have ascertained their existence upon a careful inspection by a person ordinarily conversant with the subject, and it will be deemed his own fault if he did not do so at the time of his purchase {d). Two properties, which adjoined, were originally possessed by the same owner, in one of which was a cesspool and a drain to carry the water from the adjoining propert}', which was a tan-yard. The owner afterwards sold the property to different persons, and the conveyances contained no reference to the drain and cesspool : — held, that there was an implied grant of the easement of the cesspool in the conveyance of the tan-yard (c). Where the plaintiff excepts and reserves to himself the right to make and use a sewer in land conveyed by him to the defendant, whereb}' the exclusive use of such sewer is reserved to the plaintiff, he may maintain an action against the defendant for opening and using the sewer (/). So Avhere the defendant grants to the plaintiff the use of water, subject to a proviso for the use thereof by the defendant, the plaintiff may maintain an action on the deed for the abuse of such reservation by the defendant {g). A parol licence to make a drain or watercourse in the land of the licensor will not, even after it has been fully executed at the expense of the licensee, confer any right or title on him to have the use and benefit of the drain or watercourse free from obstruction ; nor enable him to maintain any action against the licensor for obstructing such drain or watercourse without notice (Jt), But a licence attached to (c) Bccston V. Weatc, 5 E. & B. 9SG ; 25 L. J., Q. B. 115. (d) Pycr V. Carter, 1 H. & N. 916, 921 ; 26 L. J., Ex. 258. But see contra, Sxif- field V. Broivn (on appeal), 33 L. J., Ch. 249, 259 ; Poldcn v. Bastard, 7 B. & S. 130, 131. (c) Eivart v. Cochrane, 4 Macq. H. L. Gas. 117; 7 Jur., N. S, 925; but see Sitffield V. Brown, supra. (/) Lee V. Stevenson, E., B. & E. 512 ; 27 L. J., Q. B. 263. (g) Raicstron v. Taylor, 11 Exch. 369, (h) Heiclins v. Shippam, 5 B. & C. 221 ; 7 D. & R. 783 ; Cocker v. Coivper, 1 C. M. & R. 418 ; Grcenslade v. Hallidaif, 6 Bing. 379 ; Mason v. Hill, 5 B. & Add. 1 ; JFood V. Leadbitter, 13 M. & ^V. 838 ; Adams v. Andreics, 15 Q. B, 284 ; Taplin V. Florence, 10 C. B. 744 ; Eoffey v. Hen- derson, 17 Q. B. 574 ; llohcrts v. Rose, 3 H. & C. 162 ; 33 L. J., Ex. 1 ; affirmed in error, 4 H. & C. 103 ; L. R., 1 Ex. 82 j 35 L. J., Ex. 62. Sect. 4. — Wateecourses. 757 a valid grant of real or personal property is irrevocable, it being a licence coupled with an interest (/"). No man can derogate from his own grant, nor can any person claiming through or under him. But a licence connected with an invalid grant is a mere licence ((whether under seal or not), and may be revoked at any time (A), either expressly or by implication (0- A parol licence to erect a «kylight, or a weir, or other easement on the land of the licensee ■cannot be revoked, after it has been executed at the licensee's ■exi^ense, so as to render it necessary for the licensee to incur farther expense in removing it {ni). Nothing of absolute necessiti) to a messuage or other building is ■extinguished by unity of ownership or possession ; as a gutter in alieno solo to carry off water, Arc, or a watercourse, or a Avay of necessity. They are merely suspended as easements during tlie joint ■ownership or possession, and will revive whenever the building or the land is conveyed to another (h). But it is otherwise with respect to ways not of necessity or other easements not of a ■continuous nature (o). The principles which regulate the rights of owners of land in respect to water flowing in known and defined channels, whether upon ■or below the surface of the ground, do not apply to underground water which merel}' percolates through the strata in no known ■channels (^j). The owner of land through which water flows in a subterranean course has no right or interest in it which will enable him to maintain an action against a landowner who, in carrying on mining operations on his own land in the usual manner, drains away the water from the land of the first-mentioned owner, and leaves his well dry {q). The owner of a mill on the banks of a stream cannot maintain an action against a landowner who sinks a deep well on his own land and by pumps and steam-engines diverts the underground water which would otherwise have percolated through the soil and flowed into the river, by which, for more than sixt}' years, the mill was worked (r). " If a man has the misfortune to lose his si)ring Ch.XVIII.s.4. JFntercourses. Extinguish- ment or Suspension of Drains, &c. Underground Water. (0 Wood V. Manlcy, 11 A. & E. 34 ; FdtlMm V. Cartw rigid, 5 Bing. N. C. 569. [k) Fentiman v. Smith, 4 East, 107 ; 7 R. R. 533 ; Wood v. LeadbiWrr, 13 M, & W. 838, 845; Taplin v. Florence, 10 €. B. 744, 764. (?) Roffey V. Henderson, 17 Q. B. 574. {m) Winter v. BrockweU, 8 East, 308 ; ■S R. R. ioi; Licjginsv. Inge, 7 Bing. 682 ; HarV'Cii v. licT/nolds, 12 Price, 724. (w) Pheyscy v. Vicary, 16 M. & W. 485, 489. (o) Pyer v. Carter, 1 H. & C. 916 ; Dodd V. Burchell, 1 H. & C. 113 ; 31 L. J., Ex. -364 ; Worthington v. Gimson, 2 E. & E. «618; 29 L. J., Q. B. 116; Pearson v. Spencer, 1 B. & S. 571, 583 ; 3 B. & S. 761 ; Poldcn v. Bastard, 4 B. & S. 258 ; 32 L. J., Q. B. 372 ; attirmed in error, L. R., 1 Q. B. 156; 7 B. & S. 130; 35 L. J., Q. B. 92. {'p) (Jlmsemore v. Pdelmrds (in error), 2 H. & N. 168 ; 7 H. L. Cas. 349 ; 29 L. J., Ex. 81 ; Ibbotson v. Peat, 3 H. & C. 644, 650. ((7) Acton V. Blundell, 12 M. & W. 324, 348 ; Neiv River Co. v. Johnson, 29 L. J., M. C. 93. (r) Chasemorc v. Pachards (in error), 2 H. & N. 168 ; 7 H. L. Cas. 349 ; 29 L. J., Ex. 81 ; Ibbotson v. Peat, 3 H. & C. 644, 650. 758 Chap. XVIII. — Eights of Common, Sporting, etc. Surface Water. Ch.XVIII.s.4. by his neighbour digging a well, he must dig his own well deeper " (s). Watercourses. ^ mine-owner may work his coal in the manner most advantageous to himself, and remove a bar of coal therein to obtain the coal in such bar, although in consequence of his so doing the water floods an adjoining mine {t). But he has no right to pollute the water flowing through swallets in his own mine which communicate with a stream running into an adjoining mine («)• And after a demise of certain closes and all streams of water therein, reserving to the lessor all mines and minerals, with power to win and work the same, the lessor, or his assigns, cannot work the mines so as to cut off the springs in the closes demised {x). A landowner has a right to appropriate surface water which flows over his land in no definite channel, although the water is thereby pre- vented from reaching a watercourse which is previously supplied {y). He has an unqualified right to drain his land for agricultural pur- poses in order to get rid of mere surface water, the supply of the water being casual audits flow following no regular or definite course ; and a neighbouring proprietor cannot complain that he is thereby deprived of such water, which otherwise would have come to his land {z). But where the water from a spring _//o/t't'(Z in a gully or natural channel to a stream on which was a mill, the spring having been cut o& at its source and the water received into a tank as it rose from the earth by the licence of the owner of the soil on which the spring rose, it was held, that an action lay by the mill-owner against the person so abstracting the water (a). The flow of water for twenty years from the eaves of a house cannot give a right to a neighbour to insist that the house should not be pulled down or altered so as to diminish the quantity of water flowing from the roof (i). On the other hand it seems that a man may by user acquire the easement or right to project his wall or eaves over the boundary line of his property, or to discharge the rain running from the roof of his house upon the adjoining land (c). Flow of Water from Eaves. (s) Per Bramwell, 1'., in Ibhotson v. Peat, 3 H. & C. 650. (t) Smith V. Kenrick, 7 C. B. 515 ; Fletcher V. Rylands, 4 H. & G. 263 ; L. R., 1 Ex. 265 ; L. K., 3 H. L. Cas. 330 : 37 L. J., Ex. 161. {u) Hodqkinson v. Ennor, 4 B. & S. 229 ; 32 L. J., Q. B. 231. (a') fFhitehead v. Parks, 2 H. & N. 870. (y) Broadhent v. Ramshottom, 11 Exch. 602; 25 L. J., Ex. 115 ; Gale, 251 (4th ed.). {z) FMivstron y. Taylor, 11 Exch. 369; 26 L. J. , Ex. 33. (o) Duddcn v. Chiardians of Clutton Union, 1 H. & N. 627 ; 26 L. J., Ex. 146. (b) Wood V. Waud, 3 Exch. 778. (c) Thomas v. Thomas, 2 C, U. & R. 34. I Sect. 5. — Game, etc. 759 Sect. 5. — Game, lOc. CH.XAaiI.s.5. (a) Game generaUij. Game, %c. By the Game Act, 1831 (1 & 2 Will. 4, c. 32) {d), s. 2, "the word What is ^ * game ' shall for all the purposes of this act be deemed to include hares, pheasants, partridges, grouse, heath or moor game, black game and bustards." Sect. 12 onl}' mentions " game," and therefore does not extend to rabbits (e). Sect. 30 gives a summary remedy Rabbits. against trespassers in search or pursuit of "game or woodcocks, snipes, quails, landrails or conies." The Game Licences Act, 1860, 23 ifc 24 Vict. c. 90, requires a game licence to be taken out for the purpose of taking or killing " any game whatever, or any woodcock, snipe, quail or landrail, or any conies, or any deer." Vty the Poaching Prevention Act, 1862, 25 .^- 26 Vict. c. 114, entitled "An Act for the Prevention of Poaching" ^sect. 1), "the word 'game' in this act shall for all the purposes of this act be deemed to include any one or more hares, pheasants, partridges, eggs of pheasants and partridges, woodcocks, snipes, rabbits, grouse, black or moor game, and eggs of grouse, black or moor game." The meaning of the word "game" must be collected from the above enactments. "It is a perfectly undefined word, and onewliich has been used at various times in different senses, sometimes narrower, sometimes more com- prehensive " (/). Game, whilst in confinement, may be the subject of larceny, and liable to a distress for rent (7). At common law the right to take and kill game (in which, as in Coimnon Law all animals feriB naturae, there is no property) belongs to the tenant, tenant to and not to the landlord, by virtue of the tenant's property in the Game. land(/i). It is and has long been very common however for the landlord to reserve the right to the game in the contract of tenancy, and the Game Act, 1831 (1 e*c 2 Will. 4, c. 32), which did away with the numerous restrictions and qualifications {i) whereby a tenant was almost invariably prevented, even in a case where the game did not happen to be resei'ved to the landlord, from enjoying his right to it, has specially' protected such reservations. Where a reservation of game is spoken of, this (although from its Eeseivation of common use in the Game Act and in leases it is more convenient {d) See this and other acts, Chitty's Act of 1831 the right was restricted to Statutes, tit. "Game.'" persons having freeholds to the amount of {c) i>iccr,app.,i.'araftrfZ,resp., IE. &E. 100/. a year, or ninety-nine years' leases 874 ; 28 L. J., M. C. 176. of 150/., &c. (/) Per Erie, C.J., in Jcffnjcs v. Evans, The 7th section of the Act of 1831 gave 19 C. B., N. S. 246, 264. the game to the hiudlord in cases where iff) Ante, 468 ; 18 R. R. 604. the occupation was under a lease (not (h) See Moore v. Earl of Plymouth, 7 being for more than twenty-one years) Taunt. 614. made previously to the passing of the act. {i) Under the statutes repealed by the 760 Chap. XVIIL — Eights of Common, Sporting, etc. Ch.XVIII.s.5. Game, %c. Parol Keser- vation. Terms of Reservation in "\VritinL^ Agreement to Preserve. to employ it) is not quite a correct term ; when the lease reserves the game, and the tenant executes the lease, he b}' so doing regrants the game to the landlord (A), granting to the landlord a profit a prendre. A profit a prendre, like other incoi'j^oreal hereditaments, can be granted by deed alone (0 ; but to a certain extent a landlord may " reserve " game by writing without seal, or even by words alone {m). The Game Act (1 & 2 Will. 4, c. 32), in sect. 8, expressly speaks of a right of entry for sporting purposes " b}' lease, or any written or parol demise or_ contract,'" and these words have been held to show by implication that a parol reservation is sufficient {n). Most agricultural leases will be found to contain a reservation of the game to the lessor. It has been held upon the construction of such reservations, that a reservation to the landlord of the exclusive right of " hunting, shooting, fishing, and sporting," debars the tenant from shooting rabbits (o), but that a grant of lease to hunt does not include a lease to shoot {ji). An agreement by the tenant not to destroy game is not a reservation of game to the landlord at all (q), but a covenant to preserve runs with the land, and may be sued on by an assignee of the reversion (r). Grant of Sporting Rights to Third Person. Farrcr v. Nelson. Quiet Enjoyment. Sporting rights are frequently granted by a landowner, either retaining the occupation of the land himself, or having let it with a reservation of the rights. Such a grant has been held not to prevent the grantor from cutting down timber in the ordinary course of management of his estate, although the cutting down will prejudice the shooting (s), or from oftering the estate in lots for building land {t), but not to allow the grantee to tread down the crops in an unreasonable manner (u), or to turn rabbits on the land {n), or game of any kind (.r). Where a farm had been demised to A. with a reservation of the exclusive right of shooting, fishing, and sporting, which right Avas afterwards Avith other laud and a house let to B. with the (Jc) Wickham v. Hav:lcr, 7 M. & W. 103. {I) See Bird v. Hi(jginson, 2 A. & E. 696, and ante, 88. {m) See Reg. v. Thurhtone, 28 L. J., M. C. 106 ; Jones v. Williams, 46 L. J., M. C. 270 ; 36 L. T. 559. {n) Jones v. Williams, 46 L. J., il. C. 270; 36 L. T. 559, per Grove, J.: "It may be taken as settled law that there may be a parol reservation of game on a parol demise." Per Lindley, J., ib. See also Ileg. v. Thurhtone, 28 L. J., M. C. 106. (o) Jeffrycs v. Evans, 34 L. J., C. P. 261, 264 ; 12 C. B., N. S. 246. {2)) Moore v. Earl of Plymouth, 7 Taunt. at p. 667 : IS E. R. 604. See also Pickering v. Ao?/fs, 4 B. & C. 639 : 4 L. J., K. B. 10 ; 28 R.'R. 430 ; Pannell v. 2^^ll, 3 C. B. 625. (q) Coleman v. Batlmrst, L. R., 6 Q. B. 366 : 40 L. J., M. C. 131 : 24 L. T. 426. (r) HooiKr v. Clark, L. E., 2 Q. B. 200 ; 36 L. J., Q. B. 79. (s) Gearnsy. Baker, L. R., 10 Ch. 355 ; 44 L. J., Ch. 334 ; 33 L. T. 86 ; 23 W. R. 543. (t) Pattison v. Gilford, L. R., 18 Eq. 259 ; 43 L. J., Ch. 524. (There was notice of the sporting rights having been let.) («) Hilton V. Green, 2 F. & F. 821. (.'■) Birkbeck v. Paget, 31 Beav. 403. Sect. 5. — Game, etc. 761 usual covenant for quiet enjoyment (see ante, p. 718), it was held Ch.xYIII.s.5. that this covenant was not broken by A. shooting rabbits and Ga me, jr. destroying furze, inasmuch as these acts were wrongful {y). In Damages for Farrer v. Nelson {z), where land was let with a reservation of sport- Oame^ ° ing rights to the landlord, it was held that the tenant might recover Farrer v. damages from the party to whom the landlord had assigned such ^'^^'^'^'^' sporting rights for injury to the tenant's crops by pheasants coming to the crops from a wood (reserved to the landlord) to which they had been brought by such party in excessive numbers. But if A. should demise twenty closes to B., with a right of shoot- User of Sport- ing over all of them, and B. should covenant not to permit rabbits to ^"^ Rights. become so numerous as to cause damage to A.'s tenants, it will be an answer to an action for breach of such a covenant that over some of the closes A. had not reserved the right of shooting because by such non-reservation A. rendered it impossible for B. to enter upon all the demised closes for the purpose of i)erforming the covenant {a). An exception of liberty for the tenants on the farms to kill rabbits with ferrets only extends to plantations let as farms subsequently to the demise of the right of shooting Qj), A grant to a person to come with servants or otherwise authorizes the grantee to hawk, kc, by his servants in his absence {c). A grant of the right of sporting to the lessee of the right in common with the lessor, his heirs and assigns, and any friend of him or them, confers a privilege not confined to a single friend at a time id). A power to demise lands or an}' part of them is not well exercised Construction by a demise of part, with libert3M:)f shooting over the whole {c). But '^ *^^^'^^' a lease under a power may except and reserve all game, &c., on the demised premises to the lessor, his heirs and assigns, if apt and sufficient words be used (/). The Rating Act, 1874, 37 & 38 Vict. c. 54, extends the operation Rating. of the poor rate acts to the right of sporting when severed from the occupation of the land, as has been already shown (ante, p. 609)^ The 8th and 11th sections of the Game Act, 1831 (1 & 2 Will. 4, i & 2 Will. 4, c. 32), protect express reservations of game as follows : — . -, . . 8. Nothing in this act contained shall authorize any person seised or Express Reser- possessed of or holding- anv land to kill or take the game, or to permit anv ^'ations of a_i 1 -n , , 111- 1 " t^anie not in- otlier person to kill or take the game upon such land, ui any case where terfered with. (//) Jeff ryes v. Evans, supra (o). See now of game which can reasonably and properly Ground Game Act, infra, p. 765. In Gcarns be kept on it." V. Baker and Patiison v. Gilford, sui)ra, {a) Cornewall v. Daicsun, 24 L. T. C64. there was no express covenant for quiet [b] Kcwton v. Wilmot, S M. & W. 711. enjoyment. (c) Eioart v. Graham, 7 H. L. Gas. 331. (z) Farrer V. Nelson, 15 Q. B. D. 258 ; 54 (d) Gardiner v. Colycr, 12 W. R. 979. L. J., Q. B. 385 ; 52 L. T. 766 ; 33 W. K. 100; {e) Dayrell v. Hoare, 12 A. & E. 356.^ Pollock, B., pointed out that "any person (/) Pannell x. Mill, Bart., 3 C. B. 625 ; is entitled to bring on his laud any quantity Jcffryes v. Evans, supra. 762 Chap. XVIII. — Piights of Common, Sporting,- etc. Ch.XVIII.s.5. Game, %c. 1 & 2 Will. 4, c. 2,1—ccntd. Landlord entitled to Game may authorize other Persons. by any deed, grant, lease or any written or parol demise or contract, a right of entry upon such land for the purpose of killing or taking the game hath been or hereafter shall be reserved or retained by or given or allowed to any grantor, lessor, landlord or other person whatsoever 11, Where the lessor or landlord shall have reserved to himself the right of killing the game upon any land, it shall be lawful for him to authorize any other person or persons Avho shall have obtained an annual game certifi- cate ((/), to enter upon such land, for the pui'pose of pursuing and killing- game thereon. By sect. 12, a maximum penalty of 2Z., and of 11. for every head of game taken, is imposed on the occupier of land taking or authorizing any other person to take the game in case of special reservation thereof to the landlord or anj' other person (/i). "Where Agreement to Preserve is not Reservation. Summary Proceedings against Trespassers. Licence of Occupier no Defence where Game Reserved to Landlord. Saving for Hunting, &c, An agreement by the tenant not to destroy game, but to do all he can to preserve it, and to forbid otlier persons sporting at the request of the landlord, is not a "reservation" within the meaning of this section, so as to support a conviction of the tenant (i). By sect. 30, after reciting that " after the commencement of this act game will become an article which ma}' be legally bought and sold, and it is therefore just and reasonable to provide some more summar}' means than now by law exist for protecting the same from trespassers," after imposing a j^enalty for trespassing in pursuit of game, woodcocks, snipes, quails, landrails or conies in the daytime, it is enacted that the leave and licence of the occujjier of the land so trespassed upon shall not be a sufficient defence in any case where the landlord, lessor or other person shall have the right of killing the game upon such land by virtue of an}' reservation or otherwise ; and by sect. 31 the occupier or any person authorized by him may require the person so found trespassing to quit the land, and also to tell his name and place of abode, and, in case of refusal, may apprehend such person. By sect. 35, the provisions against trespassers and persons found on any land do not extend to any person hunting or coursing with hounds or greyhounds, and being in fresh pursuit of any deer, hare or fox already started upon any other land, nor to any person bona fide claiming and exercising any right or reputed right of free warren or free chase, nor to any gamekeeper lawfully appointed within the limits of any free warren or free chase, nor to any lord or steward of any manor, nor to any gamekeeper lawfully appointed by such lord or steward within the limits of such manor. {g) Now a licence pursuant to 23 & 24 Vict. c. 90. {h) See Mordcn, app., Porter, resp., 7 C. >»., N. S. 641 ; Kcnijon, aiip., Hart, resp., 6 B. & S. 249 ; 34 L. J., M. C. 87 ; lieq. V. Cridland and others, 7 E. & B. 853 ; 27L. J., M. C. 28. (i) Coleman v. Baihurst, L. R., 6 Q. B. 366 ; 40 L. J., M. C. 131 ; 24 L. T. 426 ; 19 W. R. 848 (Lush, J., diss.). Sect. 5. — Ga:me, etc. 763 By sect. 42, it is not necessary, in any proceeding against any CH.xyill.s.5. person under the act, to negative b}' evidence an}- certificate, licence, . , , . Defendant to authority or other matter of exception or defence, is bound to prove rrove Licence, the same (A). &c., relied on. Any person trespassing in a highway, in search or pursuit of game, What is a may be convicted under sect. 30 {1} . But merel}' sending a dog into an adjoining cover in search or pursuit of game is not a sufficient "trespass by entering or being" in or upon such cover, the act requiring a personal trespass (I). A person who, in his own land, shoots a pheasant in the land of another, and goes on such other land to i^ick the bird up, commits a trespass of entering land in pursuit of game within the meaning of sect. 30, the shooting and picking up the bird being one transaction (m). But entering land for the purpose of picking up dead game is not a trespass in pursuit of game within the meaning of that section, Avhicli only a^iplies to lire game («). Proof of a mens rea is not necessary to support a conviction under Proof of Mens sect. 30. It is sufficient if there be evidence of a mere trespass in necessary. pursuit of game for which a civil action might be maintained (o) . A Monlea v. bona fide claim of title to the land as owner thereof, or as acting with ^°''^^^'- the authority of such owner, is sufficient to oust the jurisdiction of the justices under this section {p) : but not a claim of a prescriptive right in gross to kill game on the land, there being no colour for such claim : nor a claim of title in a third person under whom the defendant does not justify {q) ; nor a claim on behalf of the public generally {r). The bona fides of the claim is for the justices to determine (s). A tenant cannot be convicted under this section for killing rabbits on land in his own occupation ; nor can an}' person acting as his servant and un liis bcJialf with his authorit}' and not by way of sport (/). No leave or licence of the tenant or occui^ier to kill '* game " will be of any avail where the game has been expressly reserved to the landlord or lessor or to an}' other person. In cases where any such leave or licence is available, it must precede the act of ijc) See Reii. v. Wood, 25 L. J., M. C. 44 L. J., M. C. 164 ; 24 W. 1!. 164. 96 ; 1 Dears, k B. C. C. 1. (21 ) llrg. v. Cridlaad, 7 E. & B. So3 ; {D Jlrg. V. Fratt, 4 E. & B. 860; 24 27 L. J., J\l. C. 28; Lc^'<«. <^-«^-, , 1 • 1 / \ between Land- onl}' was demised (e). lord and Third If the reversion is severed, one tenant in common cannot join the Persons. others in an action without their consent in writing (/) ; but any Action by . , ... , , . ?, ; Tenant in tenant m common may sue without jommg the others it he pleases ((/) . Common. The plaintiff in his statement of claim should show that he had a Statement of reversionary interest at the time of the injury being committed Qi), ^^^""• but there is now a very large power of amendment vested in the judges. And even under the old system of procedure, where the plaintiff declared as for an injuiy to land in his possession, which turned out on the trial to have been in the possession of his tenant, the real controversy between the parties being whether the land was the plaintiff's property, and whether there was a right of way across it, it was held, that the judge had power to amend the declaration so as to adapt it to an injury to the plaintiff's reversionary interest (i). The nature of the reversion to which the plaintiff is entitled is only What Title so far material as to regulate the amount of damages to be recovered by him. A reversioner for a life estate, for instance, can only recover such damages for an injuiy to the estate during the term of the lease as are equivalent to the injury done to the life estate {j). Under the old practice, it was held to be fatal that the declaration alleged that the plaintiff had a reversion when the facts proved did not show any true relation of landlord and tenant (Jc). As the actual facts are now to be set out in pleadings this is no longer a danger, but at the same time it should always appear on the pleadings that the plaintiff has an interest entitUng him to sue and what that interest is. It may be remarked, however, that payment of rent to a person has been held sufficient prima facie evidence of a reversion being in him (/). A reversioner cannot sue for anything as an injury to his reversion, "What is a unless it permanently injures his estate, or operates in denial of his of Injury. right(;?05 even though he may have suffered a pecuniary injuiy thereby (??) : therefore a temjoorary fixing of barges and planks in a part of a river near certain premises, thereby obstructing the ie) Coxv. Glue, 5 C. B. 533. {k) See Martin v. Goble, 1 Camp. 320 ' (/) R. S. C, Ord. XVI., Rulell. Corbauld v. Leigh, L. R., 4 Ex. 126' ig) Roberts v. Holland, [1893] 1 Q. B. Partridge v. Berc, 1 D. & R. 272 ; Hitch- 665 ; 62 L. J., Q. B. 621 ; 41 W. R. 494 ; man v. Walton, 4 M. & W, 409. 5 R. 370. The action in this case was [I) Daintnj v. Brocklehurst, 3 Exoh. 207. against a tenant (being assignee of a lessee), (m) Hopicood v. Schofield, 2 Moo. & R, but the principle applies to an action 34 ; Bu.rtcr v. Taylor, 4 B. &; Adol. 72 ; against a stranger. Metropolitan Association v. Fetch, 5 C. B., (/t) See Hoskinq v. Phillips, 3 Exch. N. S. 504 ; Cooper v. Crabtrce, 20 Ch. D. 168 ; Vowles v. Miller, 3 Taunt. 137. 589 ; 45 L. T. 587. (i) May v. Footner, 5 E. & B. 505 ; 25 {n) Mumford v. Oxford, Worcester, <£c L. J., Q. B., 32. FmH. Co., 1 H. &N. 34. ij) Evelyn \. Faddish, Holt, 543, 49—2 772 Chap. XIX. — Landlord (or Tenant) and Third Persons. Ch. XIX.s. 1. Rights, ^-c, between Land- lord and Third Persons. For what Injuries Laiul- ]ovd may sue Third Person. Cause of Action accrues when Damage sustained. navigation of that part and hindering persons from passing to the premises and unloading boats thereon, is not an injury to the reversion (o). But a permanent obstruction of a way in denial of the right is an injury to the reversioner (j)). The reversioner may sue for any injury done to his house by the defendant's neglect to- scour a watercourse in a adjoining close, whereby the watercourse was obstructed, and the water thrown back from the course into the house, doing damage to it thereby {q) ; or for an injury done to it by mining under it (r), or by raising the pavement so much in front of it as to block up the entrance and the lower windows of it (s) : or the erection of a wall, Avhereby his lights are obstructed {t) : or for the erection on the defendant's house of eaves and a pipe overhang- ing and conducting water on land in the occupation of a tenant (;<). An action is maintainable by a reversioner against the surveyor of a highway for cutting away part of a bank adjoining a public road, though the premises are thereby in fact improved, as the removal of any part of the land is an injur^^to the reversion {x). Where a lease reserves a limited power to the lessors to make a way across the land for certain purposes ; in an action by the lessee as a reversioner for making a way across the land for other purposes it is not a ground of complaint that the intention of the defendants was to use the way for other purposes than they had a right to use it ; but the question is, whether at the time it was made it had become necessary or expedient for the defendants to make a waj* for the purposes for Avhich they were entitled, and whether the road made was a projier road for that purpose, in which case the action will only lie, if at all^ at the instance of the tenant in possession {y). The statement of claim should allege the injury to have been done to the damage of the reversion, or at least state an injur}^ of such a permanent nature as to be necessarily injurious to the reversion {z). The cause of action does not accrue, nor the Statute of Limitations- begin to run, until actual damage is sustained {a). {o) Dolson V. Blackiaorc, 9 Q. B. 991. {}!) Kidgill V. Muor, 9 C. B. D64 ; 1 L., M. k r. 131; Hopicoudv. Schoficld, su[)ra ; see, too, Bell v. Midland Bail. Co., 30 L. J., C. P. 273, and Falk v. Skinner, 18 Q. B. 568, in which the point in ques- tion was apparently assumed. {q) Bell V. Ticentyman, 1 Q. B. 766 ; Taylor v. Stendall, 7 Q. B. 63i ; 3 1). & L. 161. (;•) See Rainev. Alderson, 4 Bing. N. C. 702 ; JJackhotise v. Bonomi, 9 H. L. Cas. 503 ; 34 L. J., Q. B. 181. (i) Leader v. Moxon, 3 Wils. 461. \t) Jessrr V. Gifford, 4 Burr. 2141 ; Shad- well V. Hufchinson, 2 15. & Adol. 97 ; ]\Ioo. &i M. 350 ; 4 C. & P. 333 ; Turner v. Sheffield and Ruthcrham Real. Cc, \(y Al. k W . 425 ; 3Ietropolitan Association, d:c. V. Retch, 5 C. B., N. S. 504. [n) Tucker \. Neinnan, 11 A. &E. 40 ;r Fay V. Rrentice, 1 C. B. 828 ; Battishillw Reed, 18 C. B. 696 ; 25 L. J., C. P. 290. (,v) Alston V. Scales, 9 Bing. 3. (y) Durham and Snndcrhmd Rail. C'o.x. Walker, 2 Q. B. 940. [z) Jackson v. Pcshd, 1 SI. & S. 234 ; 14 R. P. 417 ; Dolson v. Blackmore, 9' Q. P>. 991 ; Kaigill v. Moor, 9 C. B. 364 ; 1 L., M. & P. 131. {a) Backhouse v. Bonomi, 9 H. L. Cas. 503 ; 34 L. J.,Q. B. 181 ; and see Darlcy^ iLc. Co. y. Mitchell, 11 App. Cas. 127. i Sect. 1. — Piights, etc., between Landlord and Third Persons. 773 A statement of claim in an action for an injuiy to the reversionary interest of the phiintiif by obstructino- ancient lights, is sufficient on demurrer if it show an obstruction Ayhich may operate injuriously to the reversion, either by its being of a permanent character, or' by its operating in denial of the right, and it will be assumed to have been so, after verdict (b). A nuisance from smoke or noise, although it may be an actionable injury to the tenant in possession, is not one to the reversioner (c), as it is only a temporary nuisance and one which may cease at nny moment (d). But where a nuisance is in its nature of a permanent character, and will continue after the expiration of the term unless removed, and speciall}" if it affect any easement, or the right and title to the demised premises, the rever- sioner may sue, the pleadings expressl}^ alleging injtiry to his rever- sionary interest. The measure of damage in an}' such action will be so much as the jury may think sufficient to compel the defendant to abate the nuisance ; not the amount of the diminution of the saleable value of the reversion (f). An injunction was granted at the suit of a lessee and lessor respectively of a public-house to restrain an electric lighting com- pany from carrying on their works so as by noise and vibration to interfere with the enjoyment of the lessee and to cause injury to the structure of the premises (/). As regards the liability of landlords to third persons, it may be taken as a general rule that the tenant and not the landlord is liable to third persons for any accident or injury occasioned to them by the i:)remises being in a dangerous condition, and the only exceptions to this rule appear to arise when the landlord has either (1) contracted with the tenant to repair, or ("2) when he has let the premises in a ruinous condition (^), or (3) when he has expressly licensed the tenant to do acts amounting to a nuisance [It). It is quite clear and well settled that apart from contract there is no duty upon the owner of an unfurnished house as between him and his tenant to see that the house is let to the tenant in a safe condition at the commence- ment of the term ; and if the tenant, or the customer or guest or employe of the tenant suffer injur}' from the unsafe state of the house, no action for negligence will lie against the owner (/). Ch. XIX. 8. ]. Rights, d-c., helween Land- lord and Third Persona. Eight of Action for Permanent Nuisiiuce. Pleasure of damage. Injunction Against Electric Lighting Co. Liability of Landlord to Third Persons. Nelson v. Liverpool Brewery Co. (b) Metropolitan Association, d:c. v. Fetch, 5 C. B., K S. 504. (c) Simpson v. Savage, 1 C. B., N. S. 347 ; Mumford v. Oxford, Worcester and Waiver hamjHon FmU. Co., 1 H. & oST. 34. id) See per Jesse), M.R., Jones v. Chap- pell, L. R., 20 Eq. 539. (e) Battishill v. Reed, 18 C. B. 695 ; 25 L. J., C. P. 290. (/) Shelf er v. City of London Electric Lighting Co., [1895] 1 Ch. 287 ; 64 L. J., Ch. 216 ; 72 L. T. 34 ; 43 Ay. R. 238 ; 12 R. 112— C. A. {g) Nelson v. Liverpool Brcweru Co., 2 C. P. D. 311 ; 46 L. J., C. P. 675 ; 25 W. R. 877. (/i) White V. Jameson, L. R., 18 E(|. 303 ; Chauntler \. Rohinson, 4 Exch. 1 63. (i) Lane v. Cox, [1897] 1 Q. B. 415 ; 66 L. J., Q. B. 193 ; 76 L. T. 135 ; 45 W. R. 261— C. A. In this case the tenancy ■was weeklj', the staircase was unsound, and 774 Chap. XIX. — Landlord (or Tenant) and Third Persons. Ch.XIX.s. 1. Rights, d-c, between Land- lord and Third Persons. Letting Premises with Nuisance. Todd V. Fliciht. Liability of Landlord in respect of Premises occxipied by Tenant from Year to Year. Weekly Tenant. When, however, the j^roioerty of the hmdlord is let hy him in a state which is a nuisance, and lie is himself responsible for its being in such a state, he is liable. Therefore where the defendant, v/ho was the owner of a building and a stack of chimney's near to a building of the plaintiff, demised tbem when the chimneys were known to him to be ruinous and in danger of falling upon the build- ing of the plaintiff, and kept and maintained them in such ruinous state until the}^ fell upon the plaintiff's building, which they did during the occupation of the tenant under such demise, from no default of such tenant, but b}' the laws of nature : — it was held, that an action for the injury the plaintiff had sustained from the fall of the chimneys would lie against the defendant, though he was not the occupier at the time of the fall(/i'). If the landlord remains liable for repairs to the demised premises, that is evidence of his continuing the nuisance (Z), the fact, on the other hand, of the tenant being bound to repair being almost conclusive evidence that the landlord is not liable {m). An action lies against the landlord of a house, who employs workmen and superintends repairs, though the lessee pays for them, for a nuisance occasioned by the negligence of the workmen (n). A person who lets premises with a nuisance upon them, and subsequently receives rent, is liable for the con- tinuance of the nuisance (o) ; and so if he re-lets them after the user of the buildings has created a nuisance, or if he has undertaken the cleansing and has not performed it {p). Where a nuisance of a permanent character is created on land in the occupation of a tenant from year to year, the reversioner is liable for damage caused by it, if it is shown that since the creation of the nuisance and before the damage he renewed the tenanc}'. It has indeed been held that when a landlord might have given notice to quit and did not, such continviing of the tenancy is equivalent to a re-letting (f/). Tliis, however, is distinctlj' dissented from in the undelivered judgment of the Exchequer Chamber in Gaudy v. Juhber (r), which would appear to be good law, although not techni- cally a decision of the Court of Error, and is ajiplicable to the case of a weekly tenancy (s) as well as to that of other tenancies, and the the person injured was a workman who came on the premises at the request of the tenant to move some furniture. Copp V. Aldrid(jc, 11 T. L. R. 411, per Lord Russell, C.J., is. to the same eH'ect. (^) Todd V. Flight, 9 C. B., N. S. 377 ; 80 L. J., C. P. 21 ; Gandv v. Jubbcr, 5 B. &S. 78; 33 L. J., Q. B. 151. (Z) rrettij V. Bickmore, L. R., 8 C. P. 401 ; 28 L. T. 704 ; 21 W. K. 733 ; Gwin- iiell V. Eavicr, L. R., 10 C. P. 658 ; 32 L. T. 835 ; see, too, Payne v Poacrs, 2 H. BI. 349. (m) Gwinncll v. Earner, .supra. (h) Leslie V. Pomids, 4 Taunt. 649 ; 13 R. R. 718. {o) Rosewell v. Prior, 2 Salk. 460 ; Todd V. Plight and Gaudy v. Jubher, sui)ra. {p) Jiich V. Pasterfield, 4 C. B. 80.0. (?) Gaudy v. Jabber, 5 B. & S. 78 ; 33 T>. J., Q. B. 151; Bartlett v. Baker, 3 H. & C. 153 ; 34 L. J., Ex. 11 ; ito v. Pcdlcy, 1 A. & E. 822. (/•) Gaudy v. Jabber, 9 B. & S. 15, n. (») Bowcn V. Anderson, [1894] 1 Q. B. 161 ; 42 W. R. 236 ; 10 R. 47, where see Sect. 1. — Eights, etc., between Landlord and Third Persons. 775 question is whether the accident was caused b}^ a structural defect Ch. XIX. s. i. existing at the time of the original lettina; — in which case the lii!/hts,d:c., IT 111 Til 11 1- n ^ hettvecn Land- landlord would be liable — or by the negligence oi the tenant, in lord and Third which case the tenant would be liable. _ Persons. Where a weekl}" tenant used a house as a brothel, and the landlord Conviction of received an additional rent b}" reason of its occupation for such userofPre- purpose, the latter, it was held, could not be convicted for keeping ^"ises as 11 11 1 • • ,• 1 11 Brothel, such a house merely because, having notice or the use the house was i)ut to, he abstained from giving his tenant notice to quit {t) ; but this state of the law is altered by the Criminal Law Amendment Act, 1885, by s. 13 of which the landlord is expressly made liable in such a case. A landlord may be liable for the continuance of a nuisance in Continuance OI rJ in s mi pp erecting a building, though he has no right to enter upon the land and remove it («) ; but he is not liable in respect of a new nuisance created by his tenant during the term if he bought the reversion during the tenancy {x). Although the owner of propert}- may, when he himself occupies. Liability of be responsible for injuries arising from acts done upon that propert}" Possession. by persons who are there by his permission, though not strictly liis agents or servants, such liabiht}' attaches only upon parties in actual possession {y). Where, therefore, an action was brought by an adjoining owner against A., the owner of premises, for a nuisance from the smoke of a chimney, on the ground that A., having erected the cliimne}', and let the premises with the chimney so erected, had impliedly authorized the lighting of a fire therein, it was held, that the action would not lie ; and it was further held, that as the premises were in the occupation of B., a tenant at the time the fires were lighted, A. was entitled to a verdict on a plea of " not possessed," the allegation as to possession having reference to the time when the nuisance complained of was committed, and not to the time at which the chimneys were erected {z). The fact of an assignment of the reversion will not necessarily Effect of relieve a landlord of his liability for the continuance of a nuisance Reversion. originally caused by him, for before the assignment he was answer- able for all the consequential damages : and it is not in his power explanation by Wills, J., of Sandford v. {x) Ecx v. Pcdlcy, 1 A. & E. 822 ; see, Clarke, 21 Q. B. D. 398 ; 59 L. T. 227 ; too, Saxhy v. Manchester, Sheffield and 37 W. R. 28, per Wills and Grantham, J.I., Lincolnshire Pail. (Jo., L. R., 4 C. P. 198 ; so far as proceeding on the assumption 38 L. J., C. P. 153. that no notice is necessary to determine a (y) Pich v. Bastei-ficld, 4 C. B. 783 ; weekly tenancy. Pccdie v. London and North JVcslern Rail. (t) Reg. V; Barrett, 32 L. J., M. C. 36 ; Co., 4 Exch. 244 ; Chauntler v. Pohinson, PiCg. V. Stannard, 33 L. J., M. C. 61 ; 1 Id. 163 ; Bishop v. Trustees of Bcdfm-d Leigh & Cave, C. C. 349, cited in 5 B. & S. Charity, 1 E. & E. 697 ; 28 L. J., Q. B. 83, per Compton, J, 215 ; 29 Id. 53. (h) Thompson v. Gihso7i, 7 M. & W. 456. (c) Pick v. L'astcrfcld, 4 C. B. 783. 776 Chap. XIX. — Landlord (oe Tenant) and Third Persons. Ch. XIX. s.l. Rights, /. Whether his claim to hold over be bona fide or a mere pretence is a question for the jury ; a claim to hold over by virtue of a custom of the country, which does not apply to the demised premises, will not protect the tenant from liability to double value (e). Where a tenant held over possession during a treaty for a further term, which went off, Lord Mansfield held that the penalty in the statute did not apply (/). Where one of several tenants wilfully holds over without the assent of his co-tenants, the latter will not be liable (g) ; nor is a tenant liable for the holding over by a sub-tenant without his assent (h). There must be a "demand made and notice in writing given" Demand and pursuant to the act (/). The notice and demand may be served -writifj" {ss) Extinct with mesne process. (l) Tingrey v. Brown, 1 Bos. k P. 310 ; (<) Lionel V. Roshce, 2 Camp. 453 ; H 4 K. R. 805. R. R. 764 ; Robimon v. Lcaroyd, 7M. k W. (c) Blatchford, app., Cole, resp., 5 C. B., 64. K S. 524. (m) See Lloifd v. Roshce, 2 Camp. 453 ; {d) Soulshy v. Neving, 9 East, 313 ; 9 11 R. R. 764. R. R. 567 ; Poole v. Warren, 8 A. & E. ix) Sullivan v. BisJiop, 2 C. & P. 359 ; 582 ; Swinfen v. Bacon, 6 H. & N. 184, Wilkinson v. Hall, 3 Bing. N. C. 508. 846 ; 30 L. J., Ex. 33. {y) Cutting v. Berbi/, 2 W. Blac. 1077 ; (c) Birst v. Horn, 6 M. k W. 393. Wilkinson V. Hall, supra. (/) Anon., 5 Esp. 215. (z) Wilkinson v. Hall, 1 Bing. N. C. (r/) Draper v. Crofts, 15 II. k \V. 166, 713 ; Cole Ejec. 647. (h) Rands v. Clark, 19 W. R. 48. (a) Harcourt v. Wyman, 3 Exch. 817. \i) See Form, App. C, No. 11, post. L.T. 50 786 Chap. XX. — Eights on Cesser of Tenancy. Ch. XX. s. 2. Holding over (Double Value — after Land- lord's Notice). Form of Notice — 4:ontd. Double Value cannot be Distrained for, before tlie expiration of the term requiring the tenant to deliver up possession on the expiration of his term (A) ; and in such case no further demand or notice is necessar}^ after the expiration of the term ; and the double value should be calculated from the expiration of the term for so long as the tenant holds over Q). Or the demand and notice ycl^j be given within a reasonable time after the expiration of the term (the sooner the better), provided the landlord has done no act in the meantime to acknowledge the continuance of the tenancv, or rather to create a new one : and he will thereupon be entitled to double value calculated from the time of such demand, and not from the expiration of the tenancy (»?). If the rent was before reserved quarterly" and such demand is made in the middle of a quarter, the landlord cannot recover any rent or compensation for use and occupation for the antecedent fraction of such quarter {m). The demand and notice should always be given before, or as soon as possible after, the expiration of the term. When the tenancy was only from year to year, the usual written notice to quit is a sufficient •demand and notice whereby to satisfy the statute, and no further •demand or notice need be made after the tenancy has ceased (»)• But the notice must amount to a valid and binding notice to quit (o). If it requires the tenant to quit on the wrong day, or on the right day at twelve o'clock at noon, that is not sufficient (p). A notice requiring the tenant to quit on the proper day " or I shall insist on double rent " (instead of double value) is sufficient, and does not give the tenant the option of holding o\er{q). A second notice, given after the expiration of the term, to quit on a subsequent day or to pay double rent, is no waiver of the first notice given before the expiration of the term, or of the double rent which had accrued under it (r). A notice to quit lands on a given day, " or at such time as j'our holding shall expire next after the expiration of half a year from the receipt of this notice," is sufficient in an action for double value (s). A receiver or agent authorized to let, and to sue or distrain for rent, has sufficient authority to give the notice {t), as also has a receiver appointed in the High Court, with the usual powers, who may give the notice in his own name (u). Double value cannot be distrained for, it not being in the nature of rent, but of unliquidated damages, recoverable only by action {k) Messenger v. Armstrong, 1 T. E. 53 ; 1 R. R. 148 ; Wilkinson v. Gollcrj, 5 Burr. 2694 ; Gutting \. Derby, 2 W. Blac. 1075. {I) Id. ; Soulshy v. Ncving, 9 East, 310 ; 9 R. R. 567 ; Booth v. Macfarlanc, 1 15. & Adol. 904. {m) Cobb V. Stokes, 8 East, 358 ; 9 R. R. 464. (n) Wilkinson v. Collcy, 5 Burr. 2694, 2698 ; Cutting v. Derby, 2 W. Blac. 1075 ; Hirst V. Horn, 6 M. &'\V. 393. (o) JolinstoncY. ffudlcstonc, 4 B.& C. 922. (;; ) Page v. More, 15 Q. B. 684. (q) Doe d. Matthews v. Jackson, 1 Doug. 175 ; Doe d. Lyster v. Goldvxin, 2 Q. B. 143 ; Cole Ejec. 646. (?•) Messenger v. Armstrong, 1 T. R. 53, 54 ; 1 R. R. 148. («) Hirst V. Horn, 6 M. & W. 393. (0 I'oole V. Warren, 8 A. & E. ri82. (m) Wilkinson v. Collcy, 5 Burr. 2694 ; and see Trent v. Hunt, 9 Exch. 14. Sect. 2. — Holding oyer (Double Value). 787 pursuant to the statute. After recovering the possession of demised Ch. XX, s. 2. premises bv an ejectment, the landlord may recover double value for SoUbuj over . " ' 1 1 T /• 1 • • n ^ • (Double Value the tnne the tenant held over alter the expiration ot the notice to after Land- quit until possession was obtained in the ejectment {x). The action ^'^''^'^ :Sotice). for double value "has no reference to an}- antecedent remedy which the landlord had to recover possession by ejectment, but is cumula- tive. The two actions are brought diverso intuitu ; the ejectment is in order to get possession of the premises wrongfully withheld ; the action of debt for the double value is in order to indemnify the land- lord for the wrong " (?/). No previous action of ejectment is necessary to entitle the landlord to recover double value(^'). The action " stands in the place of an ejectment, but is more beneficial and effectual (a) . "When the landlord gives notice the penalty is double the yearl}' value not double the yearly rent, which might not in some cases be an tidequate satisfaction (b). In estimating the double value, the value of power supplied by the owner of a mill by means of a revolving shaft, and let together with a room in the mill, cannot be included, such power not being " lands, tenements or hereditaments "(c). An action for double value not exceeding SOL may be brought in Action in the County Court ((Z), and the defendant cannot oust the jurisdiction Court.^ by alleging title to the premises in himself, if it be proved that he has admitted himself to have been tenant to the plaintiff at the times when the rent accrued, and from which the holding over commenced (e). It is not a dividing of the cause of action within the meaning of s. 81 of the County Courts Act, 1888, 51 Sc 52 Vict. c. 43, re-enacting s. 63 of the County Courts Act, 1816, to levy one plaint for rent of premises and another for double value for holding them over, the two demands constituting distinct causes of action (/). (c) Double Bent (after Tenant's Xotiee). By the Distress for Eent Act, 1737, 11 Geo. 2, c. 19, s. 18, a right Action for of action against any tenant holding over after his own notice to quit for"HoWiii:) Co. Lit. 56 a ; Hayling v. Olxy, 8 Excb. 531, 545 ; Smitli, L. & T. 349 (2ud ed.). (y) Shep. Touch. 244. {z) Plowdeu's Queries, No. 239 ; C'liamb. L. & T. 340. (a) That is, a rent of tlie full annual value, or near it. Ch. XX. s. 3. Emblements {Nature of). What are Emblements. Teazles. Rights incident to Emblements. Agricultural Tenant of Landlord having uncer- tain Interest may occujiy till' End of' current Year of Tenancy. 14 & 15 Vict, c. 25, s. 1. 790 Chap. XX. — Eights on Cesser of Tenancy. Ch. XX. s. 3. Emblements [Prolongation of Tenancy instead of). Occupation by Tenant Farmer till end of current Year of Tenancy. General Rule as to Persons entitled to Emblements. entitled for his life, or for any other uncertain interest, instead of claims to emhkvients, the tenant shall continue to hold and occupy such farm or lands until the exjyiration of the then mrrent year of his tenancy, and shall then quit, upon the terms of his lease or holding, in the same manner as if such lease or tenancy were then determined by effluxion of time or other lawful means during the continuance of his landlord's estate; and the succeeding landlord or owner shall be entitled to recover and receive of the tenant, in the same manner as his predecessor or such tenant's lessor could have done if he had been living or had continued the landloi'd or lessor, a fair proportion of the rent for the period which may have elapsed from the day of the death or cesser of the estate of such predecessor or lessor to the time of the tenant so quitting, and the succeeding landlord or owner and the tenant respectively shall, as between themselves and as against each other, be entitled to all the l.'cnefits and advantages, and be subject to the terms, conditions and restrictions to which the preceding landlord or lessor and such tenant respectively would have been entitled and subject in case the lease or tenanc}' had determined in manner aforesaid at the expiration of such current year : provided always, that no notice to quit shall be neces- sary or required by or from either party to determine any such holding and occupation as aforesaid. Tliis enactment applies onl>' to those tenants at rack-rent who before the statute woukl have been entitled to emblements (b) ; and seems to include all such persons except those who are tenants for their own lives, or the life of another — in which cases the executors of such persons have still a right to emblements. But it applies to all such tenancies in which there might have been a claim to emblements, ex. gr. a tenancy from year to year of a cottage Avith about an acre of land, cultivated as a garden, and partly sown with corn, and planted with potatoes (c). The succeeding owner may after the expiration of the current year of the tenancy distrain for his proportion of the rent (c). (c) Who entitled to Emblements. Those only are entitled to emblements Avho are not within the Landlord and Tenant Act, 1851, 14 & 15 Yict. c. 25, s. 1, above set forth, and have an uncertain estate or interest in land, which is deter- mined, either b}- tlie act of God or of the law, between the period of sowing and the severance of the crop (''* (^om-t , . . [itinJei- C. L. P. the hmdlord, where one half-year s rent is in arrear, and he has a Act). right to re-enter for non-payment, and proves that no sufficient special Pro- distress can be found on the premises, may recover iudoment and ceiuie if balf- n 1 ' IT- 1 year's Rent iu execution as if the rent had been legally demanded, in the manner Arrear, and pointed out by that section, which also bars the lessee from relief ^'g^i* of i "^ ' , . . Re-entry for against forfeilure, unless proceeded for " within 6 months after Non-payment. execution executed." The niceties that attend re-entries at common law which, as appears from the preamble to the repealed and sub- stantially reproduced 4 Geo. 2, c. 28, s. 11, this section is intended to relieve the landlord from, have been already noticed (ante, p. 340), as well as tlie cases upon the section and upon relief against for- feiture (ante, p. 338), except Hare v. Elms and other cases as to sub-lessees (post, p. 839). Sect. 210 is here subjoined (omitting words repealed by the Statute Law Revision Act, 1892), together with ss. 211 and 212 :— C. L. P. Act, 1852, s. 210.]— In all cases between landlord and tenant, If rent in as often as it shall happen that one half year's rent shall be in arrear, and ^P'^^^'j ^"^^ the landlord or lessor to whom the same is due hath right by law to entr}-, lecral re-enter for the non-payment thereof, such landlord or lessor shall and may, demand of without any formal demand or re-entry, serve a writ in ejectment for the rent dispensed recovery of the demised premises, or in case the same cannot be legally served, or no tenant be in actual possession of the premises, then such landlord or lessor may affix a copy thereof upon the door of any demised messuage (e), which service (e) shall stand in the jDlace and stead of a demand and re-entry ; and iu case of judgment against the defendant for non-appearance, if it shall be made appear to the court where the said action is depending, by affidavit, or be proved upon the trial in case the Judgment for defendant appears, that half a year's rent was due before the said Avrit ^'™'^^|P^'j!' *^.^ was served, and that no sufficient distress was to be found on the demised and that no ' premises, countervailing the arrears then due, and that the lessor had sutiicient power to re-enter, then and in every svich case the lessor shall recover unstress. judgment and execution, in the same manner as if the rent in arrear had been legally demanded, and a re-entry made ; and in case the lessee or his assignee, or other person claiming or deriving under the said lease, shall permit and suffer judgment to be had and recovered on such trial in ejectment, and execution to be executed thereon, without paying the rent and arrears, together with full costs, and without proceeding for relief in Tenant equity within six months after such execution executed, then and in such j^(^icr„^eut case the said lessee, his assignee, and all other persons claiming and without pro- deriving under the said lease, shall be barred and foreclosed from all relief ceedmg for or remedy in laAV or equity, other than by bringing error for reversal of* j^^qj^^^jj, such judgment, in case the same shall be erroneous, and the said land- barred from lord or lessor shall from thenceforth hold the said demised premises dis- relief. charged from such lease (e) ; provided that nothiiii*' herein contained shall Savhig for ^ \ / ^ i o mortgagee of (e) Here follow words repealed by the Statute Law Revision Act, 1S92. lease. ^Q"'a^ 838 Chap. XXIL — Eecoveey of the Premises by the Landloed. Ch.XXII.s.2. Recovery of Premises in High Court {under C. L. P. Act). If relief pro- ceeded for, rent to be paid. If rent paid before trial, proceedings on ejectment to cease. Relief against Forfeiture generally, and in Chambers, C. L. P. Act, 1860, s. 1. extend to bar the right of any mortgagee of such lease or any part thereof who shall not be in possession, so as such mortgagee shall and do, within six months after such judgment obtained and execution executed, pay all rent in arrear, and all costs and damages sustained by such lessor or person entitled to the remainder or reversion as aforesaid, and perform all the covenants and agreements which, on the part and behalf of the first lessee, are and ought to be performed. C. L. P. Act, 1852, s. 211.] — In case the said lessee, his assignee, or other person claiming any right, title, or interest, in law or equity, of, in, or to the said lease, shall, within the time aforesaid, proceed for relief in any Court of Equity, such person shall not have or continue any injunction against the proceedings at law on such ejectment, unless he does or shall, within forty days next after a full and perfect answer shall be made by the claimant in such ejectment, bring into court and lodge with the proper officer such sum and sums of money as the lessor or landlord shall in his answer swear to be due and in arrear over and above all just allowances, and also the costs taxed in the said suit, there to remain till the hearing of the cause, or to be paid out to the lessor or landlord on good security, subject to the decree of the court ; and in case such proceedings for relief in equity shall be taken within the time aforesaid, and after execution is executed, the lessor or landlord shall be accountable only for so much and no more as he shall really and bona fide, without fraud, deceit, or wilful neglect, make of the demised premises from the time of his entering into the actual possession thereof ; and if what shall be so made by the lessor or landlord happen to be less than the rent reserved on the said lease, then the said lessee or his assignee, before he shall be restored to his possession, shall pay such lessor or landlord what the money so by him made fell short of the reserved rent for the time such lessor or landlord held the said lands. C. L. P. Act. 1852, s. 212.] — If the tenant or his assignee do or shall, at any time before the trial in such ejectment, pay or tender to the lessor or landlord, his executors or administrators, or his or their attorney in that cause, or pay into the court where the same cause is depending, all the rent and arrears, together with the costs, then and in such case all further proceedings on the said ejectment shall cease and be discontinued; and. if such lessee, his executors, administrators, or assigns, shall, upon such proceedings as aforesaid, be relieved in equity, he and they shall have, hold, and enjoy the demised lands, according to the lease thereof made, without any new lease. As to relief against forfeiture more generallj'-, and by summons in chambers, it is further provided as follows by s. 1 of the Common Law Procedure Act, 1860, 23 & 24 Yict. c. 126 :— In the case of any ejectment for a forfeiture brought for non-payment of- rent, the court or a judge shall have power, upon rule or summons, to give relief in a summary manner, but subject to appeal ashereinafttr men- tioned (/), up to and within the like time after execution executed, and subject to the same terms and conditions in all respects as to payment of (/) Sects. 4 — 11, as to appeal, are, with others, repealed by the Statute Law Eevi- sion Act, 1892, as (it is presumed) having been superseded by s. 19 of the Judicature Act, 1873, and the Kules of the Supreme Court as to appeal. Sect. 2. — In High Couet under C. L. P. Act (Eent unpaid). 839 Recovery of Premises in High Court {under C. L. F. Act). Limitation of s. 210 of Act of 1852 to cases where no sufficient Distress. rent, costs and otherwise, as in the Court of Chancery ; and if the lessee Ch.XXII.s.2. his executors, administrators or assigns, shall upon such proceeding be relieved, he and they shall hold the demised lands according to the lease thereof made, without any new lease. It appears to have been generally considered that the limita- tion of time for relief imposed by sect. 210 of the Act of 1852 is universal {cj), and is not limited to cases where amongst other requirements no sufficient distress can be found. It is submitted, however, on the grounds (1) of the language of the section itself, and (2) of the very strong distinction between the cases where the landlord can realize the rent by distress and the case where he cannot so realize it, that the six months' restriction. of time has no operation unless no sufficient distress can be found, and that where such distress can be found the equitable jurisdiction to grant relief is unlimited in point of time, and limited only by the discretion of the court. In Hare v. Kims {li) the question was raised b}' original lessors, against whom an application by mortgagees of a sub-lessee had been made (within 6 months after execution) against forfeiture for non- payment of rent as to whether the applicants had any equity to such relief. The Court refused the relief on the ground that the lessees were not brought before the court, but appears to have considered, that if the}' had been so brought, or if the ajiplicants bad made adequate excuse for not so bringing them, the relief ought to have been granted (/). (c) Special Proceedings under Common Law Procedure Act, 1852, against Tenant holding over. The 213th section of the Common Law Procedure Act, 1852, Ejectment of provides a special i^rocedure for ejecting a tenant holding over [^"^(^ver °if " after the expiration of the tenancy, the contract for which was made contract of in writing, in the following terms (A) : — writing. " Where the term or interest of any tenant now or hereafter holding under a lease or agreement in writing any lands, tenements or heredita- ments for any term or number of years certain, or from year to year. Eelief refused to Sub-lessee not bringing Lessee before Court. Hca-c V. Elms. (g) See e.g. notes to Peachy v. Puke of Somerset, at p. 1263 of White & Tudor's Leading Cases in Equity ; Day's Common Law Procedure Act, 4tli ed., at pp. 204, 347, citing Doc d. Hutchings v. Lcicis, 1 Burr. 619, per Lord Mansfield ; also Hoc d. West V. Davis, 7 East, at p. 366, per Lord Ellenborough. (h) Hare v. Ebns, [1893] 1 Q. B. 604 ; 62 L. J., Q. B. 187 ; 68 L. T. 223 ; 41 AV. R. 297 ; 5 R. 189. (t) See further TVcbbcrv. Smith, 2 Yeru. 103 ; Berney v. Moore, 2 Ridge way, 310. From the oricriual decree in JFebber v. Smith, which was cited to the Court in ffa7-e V. Elms, it appears that, the lessors consenting, relief was given to such of the sub-lessees as agreed to stand in the shoes of the original lessee, and that the hill was dismissed as to such of the sub-lessees as refused to incur that liability. (/.•) This section is practically superseded by Order IIL, Rule 6, p. 843, and Order XIY., p. 844, infra, which provide a still more expeditious jn'ocedure, and are not confined to tenancies contracted for in writinjr. 840 Chap. XXII. — Eecoyery of the Premises by the Landlord. Ch.XXII.k.2. Recovery of Tranises in High Court [under C. L. P. Act). Defendant must not claim under Distinct Title. There must be a Lease or Agreement in Wi-iting, for a Term certain, or from Year to Tear. shall have expired, or been determined either by the landlord or tenant by a regular notice to quit, and such tenant, or any one holding or claiming by or inider him, shall refuse to deliver up possession accordingly, after lawful demand in writing made and signed by the landlord or his agent, and served personally upon, or left at the dwelling-house or usual place of abode of such tenant or person, and the landlord shall thereupon proceed by action [of ejectment] for the recovery of possession, it shall be lawful for him, at the foot of the writ [in ejectmenU, to address a notice to such tenant or person, requiring him to find bail, if ordered by the court or a judge, and for such purposes as are hereinafter next specified ; and upon the appearance of the party, or an affidavit of service of the writ and notice, it shall be lawful for the landlord, producing the lease or agreement, or some counterpart or duplicate thereof, and proving the execution of the same by affidavit, and upon affidavit that the premises have been actually enjoyed under such lease or agreement, and that the interest of the tenant has expired or been determined by regular notice to quit, as the case may be, and that possession has been lawfully demanded in manner aforesaid, to move the court, or apply by summons to a judge at chambers, for a rule or summons for such tenant or person to show cause within a time to be fixed by the court or judge on a consideration of the situation of the premises, why such tenant or pei'son should not enter into a recognizance by himself and two sufficient sureties in a reasonable sum, conditioned to pay the costs and damages which shall be recovered by the claimants in the action ; and it shall be lawful for the court or judge, upon cause shown, or upon affidavit of the service of the rule or summons, in case no cause should be shown, to make the same absolute in the Avhole or in part, and to order such tenant or person, within a time to be fixed upon a consideration of all the circumstances, to find such bail, with such conditions a:id in such manner as shall be specified in the said rule or summons, or such part of the same so made absolute ; and in case the party shall neglect or refuse so to do, and shall lay no ground to induce the court or jixdge to enlarge the time for obeying the same, then the lessor or landlord filing an affidavit that such rule or order has been made and served, and not complied Avith, shall be at liberty to sign judg- ment for recovery of possession and costs of suit [in the form contained in the schedule {A) to this Act annexed, marked 21, or to the like effect] " {I). This enactment does not apply Avliere the defendant bona fide claims to hold possession, not as tlie claimant's tenant, but under some distinct title, and makes an affidavit of such title in answer to the application im). It must be observed that to entitle a landlord to proceed under this section there must be a lease or agreement in writing under Avhich the defendant held till the term ended, or was duly deter- mined by a regular notice to quit ; and the tenancy must have been for a term or number of years certain, or from year to year. A quarterly tenancy is not sufficient (?<); nor a tenanc}'' for years (I) Tlie words in italics are repealed by the Statute Law Kevisidu Act, 1892. For forms of pioceedings under the section, see Cole Kjcc. 698, 702, 717—722. («i) Doc d. Sanders v. Roc, 1 Dowl. 4. (w) Doc <1. Carter v. Roc, 10 M. & W. G70 ; 2 Dowl., N. S. 449 ; 12 L. J., Ex. 27. 1 Sect. 2. — In High Court under C. L. P. Act (Holding over). 841 determinable on lives (o); nor a lease for fourteen years, determined Ch.XXII. s.2. at the end of the first seven vears bv a six months' previous notice Jiecorery of ' _ ^ Frcmiscs m pursuant to a proviso therein contained (j)). Further, the term High Court must have expired, or been determined by a regular notice to quit ; lif;l\ ' ' and it is not sufficient that the term has become forfeited and ' determined for non-performance of covenants or conditions. There Uemaml of must also have been a lawful demand in writing of possession made and signed by the landlord or his agent (q). But the usual notice to quit may of itself be a sufficient demand to satisfy the statute (r). It must be served as directed by the act, and if possible an express Refusal to refusal to deliver up possession should be obtained ; otherwise it may be difficult to satisfy the court or a judge that there has been such a refusal. After a sufficient refusal (express or to be implied) has been AVrit of obtained a Avrit in the ordinary form may be issued, but with a ^v|th Notice notice at the foot addressed to the defendant, requiring him, if for Bail. ordered by the court or a judge, to give bail by himself and two sufficient sureties, conditioned to pay the costs and damages which shall be recovered in action. Such writ must be served in the Service of , Writ. usual manner. If the defendnnt do not appear, final judgment may be signed Judgment by and execution issued in the usual manner. When the defendant appears, an application should be made to Application the court, or to a judge at chambers, founded upon a sufficient affidavit, to compel the defendant to enter into a recognizance with two sureties, pursuant to the statute. The notice of motion or summons must be served in the usual manner, and an affidavit of service made. Upon the hearing of such motion or summons, the On Hearing of court or judge will fix the sum and time "upon a consideration of su,naud°"' all the circumstances " (s). A sum equal to one year's value of the Time fixed, premises, with a reasonable sum for costs (about 40L) (t), is usually Usual Bail, required; but not a sum to cover the mesne profits (u). The amount will not be increased by reason of any dilapidations, or of any damage done to the business by shutting up the premises, or the like (x). After the time, or the enlarged time (if any), allowed by the order Judgment for for putting in bail has elapsed, "the lessor or landlord filing an affidavit that such [rule or] order has been made and served and not (o) Doe d. Pcmhcrlon v. Roe, 7 B. & {s) Doc ^l. Marquis of Amjlcscax. Brown, C. 2. 2 D. & R. 688 ; Cole Ejec. 384. (;j) See Doc d. Cardigan v. Roe, 1 {t) Doe d. Levy v. Roc, 6 C. B. 272. D. & E. 540, decided under the former («) Doe d. Hanij^son v. Roc, 6 Moo. act, 1 Geo. 4, c. 37. 54. {q) Form, Appendix C, No. 10. {x) Doe d. Marks v. Roe, 6 D. & L. 87 ; (r) Wilkinson v. Collerj, 5 Burr. 2694, Doc d. Lcvij v. Roe, 6 C. B. 272. 2698 ; Hirst v. Horn, 6 iM. k W. 393. 842 Chap. XXII. — Eecovery of the Premises by the Landlord. Ch.XXII.,s.2. complied with {y), shall be at liberty to sign judgment for recovery of possession and costs of suit in the form contained in {^schedule {A) to tills act annexed, marked No. 21, or to the like effect'] " (y). Hecovery of Premises in Sigh Court {under C. L. P. Act). 15 & 16 Vict. c. 76, s. 214. Recovery of Mesne Profits. Proof of Notice of Trial. Optional to Proceed imder Sect. 214, or otherwise. (d) Eecovery of Mesne Profits in any Action of Ejectment. By the Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76), s. 214, " Whenever it shall appear on the trial of any ejectment at the suit of a landlord against a tenant that such tenant or his attorney hath been served with due notice of trial, the judge before whom such cause shall come on to be tried shall, whether the defendant shall appear upon such trial or not, permit the claimant on the trial, after proof of Ids rigJit to recover possession of the whole or of any part of the premises mentioned in the writ in ejectment, to go into evidence of the mesne ixrofits thereof which shall or might have accrued from the day of the expiration or determina- tion of the tenant's interest in the same down to the time of the verdict given in the cause, or to some preceding day to be specially mentioned therein; and the jury on the trial finding for the claimant, shall in such case give their verdict upon the whole matter, both as to the recovery of the whole or any part of the premises, and also as to the amount of damages to be paid for such mesne profits; and in such case the landlord shall have judgment within the time hereinbefore provided, not onl}' for the recovery of possession and costs, but also for the mesne profits found by the jmy : provided always, that nothing hereinbefore contained shall be construed to bar any such landlord from bringing an}' action for the mesne profits which shall accrue from the verdict, or the daj- so specified therein, down to the day of the deliver}' of possession of the premises recovered in the ejectment." This section applies to all actions of ejectment as between landlord and tenant, and is not confined to cases in which security has been given, pursuant to sect. 213. Mesne profits may be recovered under sect. 214, although the writ and issue do not contain any claim in respect of them {z). If the tenant appear at the trial, that of itself amounts to sufficient proof that due notice of trial has been given, and no further evidence on that point is necessary {a). It is optional with the landlord to proceed for mesne profits under this section, or to bring a subsequent action of trespass for mesne profits, &c., or for double value, or double rent {h). But where bail has been put in, pursuant to sect. 213, the recognizance {y) Cole Ejec. 385 ; see form, Id. 719. (z) Smith V. Telt, 9 Exch. 307. {a) Doe d. Thomjjson v. Hodgson, 2 Moo. & R. 283 ; 12 A. & E. 13^ Ejec. 292, 388. {b) 15 & 16 Vict. c. 76, s. 218. Cole Sect. 2. — Peoceedings in High Court (Mesne Profits). 843 is conditioned "to pay the costs and damages which shall he Ch.XXII. s. 2. recovered h}' the claimant in the action;" and this will of course Recovery of , , , , . , . . „ Premises in mcluae an}- damages recovered m the ejectment in respect of mesne mgh Court profits, &c. (c) . ^""^'ah) ^' ^' B}' sect. 217, a special procedure was provided where the right of re-entry into any lands in any comity except Middlesex accrued in Procedure or after Hilarv or Trinity Terms. It would probably be held, since ^^'^^^^ ^'^!'* •^ accnied atter the decision in The Governors of Christ'' s College v. Martin (d), that certain Terms, the old terms subsist for the purposes of this enactment ; and that a landlord may avail himself of the j)rovisions of the section so far as they can be considered as still in force and of advantage to him, but an obligation imposed by the enactment on the tenant to appear i within ten days may be taken to be at an end, as in all cases now the appearance by a defendant must be in eight days (c). The object Object of of the enactment (/) (which was printed at length in former editions of this work) was to enable landlords to proceed to trial at the ensuing assizes, and to prevent tenants and persons claiming through or under them, from wrongfully holding over until the second assizes, which, but for this section, the}' might have done in many cases. (e) Special Proceedings, under Order XIV., against Tenai^t holding over. The Piules of the Supreme Court, 1883 (Order III., Rule 6, and Order XIV.), provide a summary and expeditious procedure, first introduced in 1883, and superseding the procedure under sect. 213 of the Common Law Procedure Act, 1883, above mentioned, for recover}' of the demised premises from a tenant holding over. B}' Order III., Eule 6, " lu actions for the recovery of land, with Special In- or without a claim for rent or mesne profits, by a landlord against -wl^it bv Laud- a tenant whose term has expired or has been duly determined by lorti against notice to quit, or against persons claiming under such tenant, the intf'over. writ of summons may, at the option of the plaintiff, be specially indorsed with a statement of his claim," and "such special indorse- ment shall be to the efi'ect of such of the forms in Appendix C, sect. 4, as shall be applicable to the case." The word "landlord" in this rule does not extend to the repre- Meaning of sentatives^ of a landlord, but only includes a landlord party to the contract of tenancy, or a landlord who is such by estoppel, as where the tenant has paid rent to him {g). (c) Cole Ejec. 388. (/) See Doc d. Antrolnts v. Jepson, [d) Christ's College Governors v. Martin, 3 B. it Adol. 402 ; Doe d. Puinkin v. 36 L. T. 537. Brindlcy, 4 B. & Adol. 84. {p.) R. S. C, Order II., r. 3; Appen- ((/) Casey v. Hcllycr, 17 Q. B. D. 97; dix A., Part I., No. 1. 55 L. J., Q. B. 207 ; 34 W. K. 337. 844 Chap. XXII. — Kecoveey of the Premises by the Landlord. Ch.XXII, S.2. Hecovery of Premises in High Court [under Order xir.). ^Application for Final Judgment. Lpave to Dell'iid. To wliat Cases the Procedure applies. Demise by way of Mortgage. By Order XIV., Rule 1, a judge at chambers is empowered tO' make an order for final judgment in the following terms : — AVliere the defendant appears to a writ of siimmons specially indorsed iinder Order III., Rule 6, the plaintifi" may on affidavit made hy himself or by any other person who can swear positively to the facts, verifying the cause of action and the amount claimed, if any, and swearing that in his behef there is no defence to the action, apply to a judge for liberty to enter final judgment for recovery of the land (with or without rent or mesne profits, as the case may be, and costs). The judge may thereupon, imless the defendant by affidavit or otherwise shall satisfy him that he has a good defence to the action on the merits, or disclose such facts as may be deemed sufficient to entitle him to defend, make an order empowering the plaintiff to enter judgment accordingly. By Order XIV., Kule 7 (Bule 5 of the " Rules of the Supreme Court, 1885,") " the court or a judge may with the consent of all parties, dispose of the action finally and without appeal in a summary manner, and on such terms as to costs or otherwise as the court or judge shall tliink just." By Rule 2 of Order XIV., the application for leave to sign final judgment must be made b}' summons returnable not less than four clear days after service, accompanied b}- a copy of the affidavit and exhibits referred to therein. By Rule 3, the defendant may show cause against the ai^plication by affidavit, stating whether the defence goes to the whole or to part only of the claim, and the judge may order the defendant to attend and to be examined upon oatli or to produce any leases or other documents. By Rule 4, judgment may be given for part of the claim, and by Rule 5, against one defendant only without prejudice to a right of action against others. B}- Rule 6, leave to defend may be given unconditionally or on terms as the judge may think fit. The procedure under Order XIV. applies only to cases where a tenancy has been determined either by effluxion of time or by notice to quit, which notice may have been given either by the landlord or the tenant. It does not apply to a determination by forfeiture (/i) or surrender (i), but it has been held to apply to a contract of tenancy created between mortgagor and mortgagee and determined by the mortgagee (k). This was held in Dauhuz v. Lavington, a case after- wards followed with approval in Hall v. Comfort (/), in which the mortgagor had attorned tenant to the mortgagee, and it Avas also provided that the mortgagee might at any time after a certain day (being six months from the date of the mortgage deed) enter upon the premises demised by wa}' of mortgage, and determine the tenancy thereb}^ created without giving notice to quit. (^)See CtmcUeyv.Sharpley,loM.k'W. 58. (i) See Doe d. Tindal v. live, 2 B. & Ad. 922. {k) Dav.buz v. Lavington, 13 il- B. D. 347 , 51 L. T. 206. {I) Hall V. Comfort, 18 Q. B. D. 11 ; 56 L. J., Q. B. 185; 55 L. T. 550; 35 W. K. 48. Sect. 2. — In High Couet under Ord. XIY. (Holding- over). 845 Recovery of Premises in H'ifjh Court {under Order xir.). Where a special indorsement of a writ as claiming mesne profits Ch.XXII. s.2. is good in itself it is not invalidated by a statement setting up a claim for double value to the same amount in the affidavit filed in support of an applici^tion for final judgment under Order XIV. (?») ; and inasmucdi as under section 214 of the Common Law Procedure Act, 1852 (ante, p. 842), the Court may give mesne profits down to verdict, and the landlord's right to sue for mesne profits from verdict down to delivery of possession is expressly reserved, there is jurisdiction on a writ specially indorsed with a ch\im for recovery of land and mesne profits, to make an order giving the landlord posses- sion of the land and mesne profits to be calculated up to the date of his obtaining possession {mm). (f) Proceeding hy Ordinary Action. If neither s. 210 of the C. L. P. Act, 1852 (ante, p. 837), nor s. 213 of that act (ante, p. 839), nor Order XIV. (supra) should apph', or if leave to defend should be given to the tenant under C)rder XIV., the landlord will have to proceed by ordinary action, before commencing which he should ascertain clearly that he has a right of entry, i.e. a legal right to actual possession of the property, and not merely a right to the reversion and its incidents, such as rent, &c. A mere breach of covenant is not sufficient to support an ejectment, unless the lease or agreement contains a proviso for re-entry applic- able to such covenant, but the remedy is onl}' b}' action for damages (?«). Sometimes a demand of possession is necessary before an eject- ment can be maintained (o), although the defendant is not entitled to the usual notice to quit. This happens when the defendant is, by construction of law or otherwise, a tenant at will to the plaintiff, and such tenancy has not been legally determined {p). If the action be intended to be brought upon a forfeiture for a breach of covenant other than the covenants to pay rent, or against alienation, or, in a viining lease, for inspection of books, or upon a forfeiture /or a bankruptcy or an execution, a notice must be served on the tenant and other persons interested before bringing it. This ver}'- important condition is imposed by sect. 14, sub-sect. (1), of the Conve}-- ancing Act, 1881, 44 & 45 Vict. c. 41 {q), in the following terms : — " A right of re-entry or forfeiture under any proviso or stipulation in a lease for a breach of any covenant or condition in the lease shall not be enforceable by action or otherwise, unless and until the lessor serves on the lessee a notice specifying the particular breach complained of, and if Ascertain clearly Right of Eutrv. Demand of Possession before Action. Notice, nnder Conveyancing Act, before proceeding for Forfeiture. (vi) Southport Traiiiicays Co. v. Gandi;, [1897] 2 Q. B. 66 ; 66 L. J., Q. B. 532 ; 76 L. T. 815 ; 45 W. R. 684— C. A. {mm) lb. {n) Lit. s. 325 ; Doe- d. JFilson v. Fhillips, 2 Bing. 13. (o) See form of such demand, jjost, Appen- dix, C, Sect. 9 ; but it need not be in writing. (^j) See ante, 240. ( q) See the section at length, ante, 349, Cliap. YIII., Sect. 6, sub-s. (b), and see it for the (letinitions of lessee, &c., the excep- tions for the covenant to pay rent, &c., the manner of the service of the notice, &c. 846 Chap. XXII. — Eecovery of the Premises by the Landlord. Ch.XXII. s.2. the breach is capable of remedy requiring the lessee to make compensation in money for the breach, and the lessee fails, within a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach." Recovery of Premises in High Court [by Ordinary Action). Procedure as in other Actions, With certain Exceptions. Writ to have Names of Defendants. Effect of Misnomer. Only Tenants and Sub- tenants in Possession to be named. Teiiants who have Sub-let. Vacant Possession. The procedure in an " action of ejectment," or, as it is now called, " an action for the recovery of land," is the same, for the most part, as that in use in ordinary actions. There are, however, some points in which this action is peculiar, and these will be duly noticed, and it may be well to call attention to some few details as to the writ under the old practice. The writ should be directed to the persons in possession b}' name (r). The christian and surname or title of dignit}' (.s) of each person in possession as tenant or suh-tenant of all or any part of the property claimed, should be correctly stated. But the court, even under the old practice, refused to set aside the writ, or the copy and service, when the writ was faulty by reason only of a misnomer (t) . Only persons in j)ossession as tenants or sub-tenants should be named as defendants in the writ. Generally speaking, the occupation of a servant is considered as the occupation of his master by his servant (ii). But the servant of a deceased tenant may so act as to render himself liable to be sued personally in an ejectment (r) ; and if he appear to the writ it will be no defence that he occupied merely as the servant of another person (x). If there be a tenant in possession who occupies by a sub-tenant, the former may be named in the writ as one of the defendants (?/) ; but it is sufficient to name the sub-tenant, leaving him to give notice of the writ to his immediate landlord, pursuant to 15 & 16 Vict, c. 76, s. 209. If the possession of the premises is vacant, the writ should be directed to the person who would have been tenant in possession if he had not abandoned the possession {z). If he be dead, the writ should be directed, not to him, but to his executors or administrators (a). If (r) See the repealed s. 168 of the C. L. P. '*Act, 1852. (s) Titles of dignity should be thus stated, viz. : The Most Noble A., Duke of B. ; The Most Honorable C, Marquis of D. ; The Riu;ht Honorable E., Earl of F. ; The Right Honorable G., Viscount H. ; The Eight Honorable J., Baron K. ; The Right Honorable L. M. [this is applicable to members of Her Majesty's Privy Council] ; The Honorable N. 0. [Sons o'f Peers] ; Sir P. Q., Baronet; Sir R. S., Knight ; and the like. The title or addi- tion of M.P., or Esquire, need not be given, but may sometimes be added by way of courtesy. (t) Doe d. Stanton v. Roe, 6 M. & S. 203 ; JVells v. Ld. Suffield, 4 C. B. 750 ; 5 D. & L. 177. (m) Becke v. Beaumont, 16 East, 33 ; Mayheio v. Suttle, -1 E. & B. 347, ((•) Doe d. Atkins v. Roc, 2 Chit. R. 179 ; Doe d. Cuf v. Stradling, 2 Stark. 537. {x) Doe d. James v. Stanton, 2 B. & A. 371 ; 1 Chit. R. 143. (?/) Roe V. Wiggs, 2 Bos. & P., N. R. 330. (z) Id. 85. {a) Doe d. Crouch v. Roe, 13 L. J., Q. B. 80 ; Doc d. FamjJhilon v. Roe, 1 Dowl., N. S. 186. Sect. 2. — In High Court (Ordinary Action). 847 there be no rightful executor or administrator, an executor de son tort, Ch.XXII.s.2 who has taken possession, mav be sued (h). JRecovenj of mi 1 • 11111 1 -1 1 • • -1 Premises in ihe propert}' claimed should be described in the writ with Bigh Court reasonable certaint}' (c), but a general description will usualh' be v>y Ordinary sufficient. r \ — \ The form of indorsement given in the Rules of the Supreme Court tlie Property. is as follows : — Indorsement of Writ. " The plaintiff's claim is to recover possession of a house, No. , in Street [or of a farm called Blackacre\ situate in the parish of , in the countv of " {d). The parish and county wherein the propert}' lies should be Parisli and correctly stated. The prescribed form above given says " in the ^^° ^" parish of , in the countv of ." If an}' mistake be made, an amendment will generall}' be permitted at the trial, unless it appear that the defendant has b.een actually misled or prejudiced by the misdescription (e). The writ should state correctly the names of all the persons in Names of whom the title is alleged to be: but the Rules of the Supreme Court Claimants. give " the court or a judge " ample powers for adding parties at au}^ stage of the proceedings (/), and for allowing one or more of many parties having the same interest to sue on behalf of all {« (a-) R. S. C, Ord. XIL, r. 21. -2. . /*© ly) Doc d. Bishtoii v. Hughes, 5 Tyr. 957 ; 4 Dowl. 412 ; Cole Ejec. 128. 54—2 852 Chap. XXII. — Eecoyery of the Premises by the Landlord. Ch.XXII. S.2. Recovery of Fremises in High Court {by Ordinary Action). Form of Notice for. Default of Appearance, Procedure upon Claim for Recovery of Land and also for Mesne Profits. Venue. Particulars. Defendant in Possession not to plead Title. l)roper notice in due time. Any defendant who defends for part only and fails, is liable, with the other defendants, to all the plaintiil's costs {z). A form of notice limiting a defence is given in the Appendix A. to the Rules of the Supreme Court («)• " In case no appearance shall he entered within the time limited for aiDpearance, or if an appearance be entered but the defence be limited to part onl}', the plaintiff shall be at liberty to enter a judgment that the person whose title is asserted in the writ shall recover posses- sion of the land or of the part thereof to which the defence does not appl}^ " {h), and affidavit of service of writ must be filed before judgment can be so entered (c). If the plaintiff has indorsed on his writ a claim for mesne profits, arrears of rent or damages for breach of contract, he may still enter judgment for possession as if that was the only subject-matter of his claim, and proceed for the rest of the claim as in ordinar}' cases {d). It was formerly the rule that, in such a case, no costs should be recovered under the judgment, but that they might be recovered in a subsequent action for mesne profits, &c. (e). And this would seem to be still the case, as the rule of court, unlike those relating to judgment for want of appearance, in money claims, is silent as to costs. But under Order LXY. of the Rules of the Supreme Court, a judge would have power to grant costs on a special application for that purpose. The venue in actions of ejectment was formerly local, but local venues are now abolished, the plaintiff being at liberty to propose any place at which the court sits for trial of the action, subject tO' alteration by order of a judge, which order may be discharged or varied b}' a divisional court (/). The statement of claim should contain such particulars as will avoid the necessit}' of the defendants making an}- special application for particulars. The defendant, if in j^ossession, need not plead his title, R. S. C.^ Order XXL, rule 21, prescribing that : — No defendant who is in possession by himself or his tenant need plead his title, vmless his defence depends upon an equitable estate or right, or he claims relief upon any equitable ground against any right or title asserted by the plaintiff. But except in the cases hereinbefore mentioned, it shall be sufficient to state by way of defence that he is so in possession, and it [z] Johnson V. Mills, L. R., 3 C. P. 22 ; 37 L. J., C. P. 57. (a) R. S. C, Ord. XII., r. 29. Appen- dix A., Part II.. Form No. 3. (&) R. S. C, Ord. XIII. , r. 8. (c) Id. r. 2. {d) R. S. C, Ord. XIII., r. 9. (e) Doc V. Daries, 1 Ksp. 358 ; 5 R. R. 745 ; Doc V. Huddart, 2 C, M. & R. 316 ; 4 Dowl. 437 ; Grace v. Morgan, 2 Bing.. N. C. 534. (/) K. S. C, Ord. XXXVI., r, 1. Sect. 2. — In High Court (Ordinary Action). 853 shall be taken to be im[)lied {g) in such statement that he denies or does Ch.XXII. s.2. not admit the allegations of fact contained in the plaintiff's statement of claim. Specimens of pleadings in an action for the recovery of land by a landlord from his tenant may be found in the Appendix to the Rules of the Supreme Court (li). The defendant may either in the plaintiff's action or in any action brought by himself apply to the court for relief against a forfeiture incurred otherwise than by non-payment of rent under s. 14 of the Conveyancing Act, which section has been alread}' set out and com- mented on (ante, p. 349). If the forfeiture be for non-payment of rent, relief may be granted under the Common Law Procedure Act, 1860, s. 1 (ante, p. 356), either before or after trial. The defendant may set up any counterclaim, but the court or a judge may order the claim and counterclaim to be separatel}^ tried (/). In Wallenx. Forrcstt (J:), a tenant holding over was not allowed, in an action of ejectment by the landlord, to interrogate him as to whether his title had expired. The defendant in an action for possession of demised premises on forfeiture for breach of covenant may be ordered to make an affidavit of documents, but may refuse to disclose any documents which would establish the case of forfeiture against him (l) . If a plaintiff who is bound to deliver a statement of claim fails to do so, the defendant may appl}' for judgment dismissing the action with costs for want of prosecution (/»). If a defendant is in default with his pleading, the plaintiff may enter a judgment, that the person whose title is asserted in the writ of sum- mons shall recover possession of the land with his costs (n). If a claim for mesne profits, &c. be 'added in the writ, the plaintiff ma}^ have judgment for them, and an inquiry, if required, as to the amount as in other actions for pecuniary debts or damages (o). Formerly in the event of the defendants not appearing at the trial, the plaintiff' was entitled to judgment in ejectment without proof ( jj), but had to prove his claim for mesne profits, &c. as in other imdefended actions. Under the present practice there is only one rule applying to all actions, viz. " If when an action is called on for trial, the plaintiff appears and the defendant does not appear, then the plaintiff may prove his claim, so far as the burden of proof lies upon (g) This implication is in affirmance of Dun/urcl v. McAmiUy, 8 App. Cas. 456 ; 52 L. J., Q. B. 652 ; 49 L. '1. 207. (li) R, S. C, Appendix C, Sect. vii. ; and see post, Appendix E., Sect. 2 (b). (i) R. S. C, Ord. XXL.r. 15. [k] Wallcn v. Forrcstt, L. R. , 7 Q. B. 239. {I) Seaward v. Donnington, 44 W. R. 696— C. A. (m) R. S. C, Ord. XXYIL, r. 1. (h) Id. r. 7. (o) Id. r. 8, and rr. 2—6. Ip) 15 & 16 Vict. c. 76, s. 183. Recovery of Fremises in High Court [bij Ordinary Action). Pleading. Application for Relief against Forfeiture. Counter- claim. Discovery. Want of Prosecution. Default in Pleading by Defendant. Ifon-appear- ance of a Partv at Trial. 854 Chap. XXII.- — Eecovery of the Premises by the Landlord. Ch.XXII. S.2. Recovery of Premises in High Court {by Ordinary Action). Number of Counsel heard. Right to begin. Evidence for Plaintiff, Proof of Title. What kind of Title may- be proved. him " (rj). If "the defendant appears and the plaintiff does not appear, the defendant, if he has no countercdaim, shall he entitled to judgment dismissing the action ; hut if he has a counterclaim, then he may prove such claim so far as the burden of proof lies upon him " (r). Onl}^ one counsel will be allowed to address the jur}' on behalf of the claimants, whether they claim under the same or distinct titles (s) : but, of course, one may open the case, and another sum up the evidence, as may be arranged between them. Only one counsel will be allowed to address the jury on behalf of the defen- dants except where they appear to the action and defend separately in respect of different parts of the property, or under distinct titles {t) : but the counsel for each defendant who defends separately may cross-examine the i)laintiff's witnesses, and may also ^jroduce and examine witnesses for his own client (t) ; and it seems that the counsel for one defendant may open the defence, and the counsel for another sum up the evidence, as ma}' be arranged between them. The claimant is generally entitled to begin, because the onus of proof lies on him to show his title : but the defendant will be allowed to begin upon admitting the whole of the plaintiff's case (i.e. each and ever}' link of liis title), and relying upon a totally distinct title (u) . Proof of a sufficient title in any one or more of the claimants will support the action, either for the whole or for part of the property, according to the evidence (x). But where a title is shown to less than the whole, the evidence for the claimants must show to what particular part or share they are entitled ; the onus of proof on this point lies on them (y), and the defendant is entitled to have a verdict entered for him as to such part, or the residue, to which no such title is shown (z). The claimants must either prove a title by estoppel (a), or a legal title to actual possession of the i^roiierty claimed, or some part or share thereof; and it must appear that such title was vested in them, or some or one of them (h), on the day mentioned in the writ (f), and from thence until the writ Avas served (d). (9) R. S. C, Ord. XXXVI., r. 31. {r) Id. r. 32. (s) Doe d. Fox v. Bromley, 6 D. & R. 292, 294. (t) Doe d. Ilogcf v. Tindall, 3 C. & P. 565 ; Moo. & M. 314. {it) Doc d. Bather x. Braync, 5 C. B. 655. {x) See, for example, Doe d. Eoidanson V. Wainwriqht, 5 A. & E. 520 : MjIUss v. miiss, E., B. & E. 81 ; 27 L. J., Q. B. 316 ; Lloyd V. Davis, 15 C. B. 76, 79. {y) Doe d. Hellyer v. King, 6 Exch. 791 ; 2 Low, M. k P. 493 ; Doe A. Bowman v. Lcicis, 13 jM. & W. 241 ; 2 D. & L. 667. (s) AJcock V. JFilsJiair, 2 E. & E. 633 ; 29 L. J., Q. B. 143; Owen v. Oiccn, 3 H. & C. 89. 95 ; 33 L. J., Ex. 237. {a) Doc d. Bordv. Burton, 16 Q. B. 807. {b) Supra (a-). (c) Cole Ejec. 94, 288. {d) Doc d. Gardner v. Ktnnard, 12 Q. B. 244 ; Neivby v. Jackson, 1 B. & C. 454. Sect. 2. — In High Court (Ordinary Action). 855 The claimant's evidence must show a legal right to actual posses- Ch.XXII. s. 2. sion. The claimant must generally recover ui)on the strength of his Recovery oj^ ^ " ^ . ° Premises in own title, and not upon an}' weakness or defect in the defendant's nigh Court title (e). But, as between landlord and tenant, the evidence is '^^ctlon)"^^ generally of a title by estoppel. ' The claimant's title to actual possession must be shown to have Connnence- accrued on or before the day on which possession is claimed in the writ. Therefore, where the defendant was tenant at will, it must appear that the will was determined on or before the day mentioned in the writ (/). It is, however, sufficient that the claimant's right of entry accrued on the very day on which possession is claimed in the writ, even in an action for a forfeiture {g). But the claimant's title must be shown to have continued down to and until the service of the writ {h). If the day be erroneously stated in the writ prior to that on which the claimant's title accrued, the judge at nisi prius may, if he thinks fit, allow the date to be amended, even in an action for a forfeiture (/). But this, of course, is in the discretion of the judge {k). In ejectment between landlord and tenant, or their respective Evidence of . , the Lease or representatives, the clannant must always prove the lease or agree- Agreement. ment in writing (if any), or the oral contract, under which the defendant, or the person through whom he claims, held possession. The claimant must prove that the lessee had possession of the premises sought to be recovered, or some part thereof, under or by virtue of the lease or agreement in writing, or of the oral letting, as the case may be. Encroachments may be recovered together with and as part of Encroach- the demised premises ; or if all the premises ox'iginally demised have been delivered up to the landlord, they may be recovered separately- {I) : and they may be so recovered at an}- time within the period limited for the recover^' of the demised premises, i.e. wdthin twelve years {m) after the expiration of the term. But an encroachment made by the tenant before the commencement of his tenancy cannot be recovered {n). If the defendant be not the lessee, it must be proved that he Assignment came into possession under or after the lessee. Such evidence (in ^^ ^^^^ the absence of proof to the contrary) will show that he entered Defendant. (c) See Cole on Ejec. 87. Hall, 5 M. & G. 795 ; 1 D. & L. 49. (/) Goodtitlc d. Galloway v. Herhert, 4 {k) See Loc d. Loscombc v, Clifford, 2 T. R. 680 ; Doe d. Jacobs v. Phillij^s, 10 C. & K. 448. Q, B. 130. (?) Andrews v. Hailcs, 2 E. & B. ((/) See Doe d. Graves v. JFclls, 10 349. A. & E. 427. {m) 37 & 38 Vict. c. 57. (h) See note (c), supra. {n) Dixon v. Baty, L. K., 1 Ex. 259 ; 14 (i) Doe d. Edicards v. Leach, 3 51. & G. W. K. 836. 229 ; 9 Dowl. 877 ; Doe d. Simpson y. 856 Chap. XXII. — Recovery of the Peemises by the Landlord. Ch.XXII. S.2. Eecovery of Fremises in Sigh Court {by Ordinary Action) . Assignment of the Reversion to the Claimant. The Right of Entry. Mesne Profits. into possession as assignee of the term(o). Proof that the defen- dant has on his own account paid some of the rent reserved by the lease or agreement, would be strong evidence of his being such assignee. If the claimant be not the lessor, his title to the reversion must be deduced and proved by the production of proper conveyances of the reversion. But if it be shown that the defendant has paid to the plaintiff some of the rent reserved by the lease or agreement, or that he has submitted to a distress made by the plaintiff' for such rent, and so in effect admitted his title, that will be sufficient, as he will be estopped from denying the title of a person whom he has treated as his landlord {p). Where a forfeiture is relied on, it must appear that the reversion was assigned to and became vested in the claimant before such for- feiture (g) ; and that the proviso for re-entry extends to the claimant as such assignee (r). Before the Conveyancing Act, if '' assigns '* were mentioned, but not heirs or executors, it seems that the assigns could take advantage of the condition only during the lessor's life, but not afterwards (s) ; but the Conveyancing Act appears to have altered the law in this respect {t). It must appear that on or before the day mentioned in the writ of ejectment the term or tenancy expired by effluxion of time, or that it was duly determined by notice, by an act causing a forfeiture, or otherwise, as the case maybe (»)• 1'be forfeiture (if any) must have accrued on or before the day mentioned in the writ of ejectment, and whilst the claimant was the owner of the reversion. If the claimant seek to recover mesne profits he must prove — 1. His right to recover possession of the whole or part of the pre- mises mentioned in the writ. No mesne profits are recoverable in an ejectment, except as between landlord and tenant. It is optional wdtli the landlord whether he will seek to recover in the ejectment any mesne profits. Such option may be exercised at the trial without any previous notice in that behalf {x) ; but the writ must have been indorsed with a claim for mesne profits (//). 2. The value of the mesne profits from the day of the expiration or determination of the defendant's interests in the same, down to the time of the verdict, or to some, preceding day to be specially mentioned therein, must be proved as in an action for mesne profits. (o) Doe d. Morris v, Williams, 6 B. & C. 41 ; Doe d. Hindley v. Fdckarby, 5 Esp. 4; Eees d. Mears v. Perrott, 4 C. & P. 230. {]}) See ante, 225 ; and Cooke v. Loxley, 5 T. R. 4 ; 2 R. R. 521. {q) See in Hunt v. BisJiop, S Exch. 675, 680 ; 9 Id. 635. (r) Cole Ejec. 404, 405. (s) Co. Litt. 215 b, n. (1). (t) See s. 10 of the act, p. 267. (ic) Ante, Chap. YIII. (a-) Smith v. TcU, 9 Exch. 307. (7/) See R. S. C, App. A., Part III., Sect. iv. Sect. 2. — In High Court (Ordinaey Action). 857 It is generally advisable for a landlord to take a verdict for the Ch.XXII. s.2. mesne profits where the defendant appears at the trial, and has Recovery of ■^ . . '- '- , Fremises in previousl}' given bail " to pay the costs and damages which shall be Sigh Court r-ecovered by the claimants in the action," pursuant to 15 & 16 Yict. ^ 'Action'^"^ c. 76, s. 213 (z). But where the defendant does not appear at the trial, the claimant seldom offers proof of his title, &c. for the mere purpose of recovering mesne profits. He ma}', however, do so, and sometimes with advantage, especially where bail has been given as above mentioned. The defendant may prove that his tenancy has not expired, or been Evidence for dul}'^ determined by notice to quit or otherwise ; or that a new tenanc}^ has since been created, either expressly or impliedly b}' the pajanent and acceptance of rent due at a later period (a). If a forfeiture be relied on, the defendant may not onl}' dispute the sufficiency of the claimant's evidence on that point, and also produce contradictory evidence, but he may also (if he can) prove a waiver of such forfeiture, with full knowledge thereof (^). But this evidence will not avail where there has been a continuing breach after such waiver (r). If the ejectment be for non-payment of rent the defendant may prove payment of such rent, or of all the arrears except less than one half- year's rent ; or that there was a sufficient distress on the demised premises, or some part thereof, to countervail all the arrears due, and that such distress might have been found with reasonable diligence {d). But such proof will not avail if a strict demand of the rent according to the rules of the common law be proved (e) ; or such formal demand be dispensed with by the terms of the proviso for re-entry contained in the lease (/). Generally speaking, as we have seen in discussing the modes of When Tenant estoppel (g), a tenant and an}^ person claiming througli or under him Landlord's is estopped from disputing the landlord's title to demise ; but he may Title. show by evidence that it has since expired or been legally determined, or parted with by wa}^ of mortgage, sale or otherwise (h). When the lessor himself does not sue, the derivative title of the claimant may be disputed, so far as that can be done without impugning the lessor's right to demise according to the terms of the lease ; unless, indeed, the defendant has admitted the claimant's title by payment of rent or otherwise, and such admission cannot be explained away by evidence (2) Ante, Sect. 2 (a). Doc d. Amhlcr v. IFoodbridge, 9 B. & C. 376. (a) Doe d. Hollingirortli v. Stcnnctt, 2 {d) As to when there is a sufficient dis- Esp. 717 ; 5 R. R. 769 ; Bishop v. Iloiuard, tress on the premises, see Doc d. Havcrsoii 2 B. & C. 100. V. Frcmks, 2 C. & K. 678. (6) Croft V. Lumhy, 5 E. & B. 64S ; 26 (c) Acocks v. Phillips, 5 H. & N. 183. L. J., Q. B. 223 ; 6 H. L. Cas. 672. (/) Doc d. Harris v. Masters, 2 B. & C. (c) Doc d. Baker v. Jones, 5 Exch. 498 ; 490 ; 4 D. & R. 45. Doe d. Mibston v. Gladwin, 6 Q. B. 953 ; (r/) Ante, 225. Doe d. Flower v. Peck, 1 B. & Adol. 428 ; (h) Longford v. Selmes, 3 Kay & J. 220. 858 Chap. XXII. — Eecoyery of the Premises by the Landlord. Ch.XXII.s.2. showing fraud or mistake (i). Sometimes the defendant may pro Ye a Eecovery of determination or suspension of the right of re-entry by an eviction Premises in ^ ^ i ■ i • /i\ High Court irom part 01 the demised premises {k). {by Ordinary j£ \^qyq jje a term Created by deed, and such term has not Action). ... Yet expired, the Statute of Limitations has no application. For Statute of ;* ^ ' . , , • 1 , -11 Limitations, however long a time rent may have been omitted to be paid, the landlord's right to re-enter subsists for the whole length of the term, however long. This is the effect of Grant v. Ellis (l), Doe d. Davey v. Oxenham {m) , and the House of Lords case of Arcliholcl\. Scully (n). Judgment A judgment for the plaintiff may be enforced by writ of posses- Writ^of ^ sioii (o) in the manner formerly used in actions of ejectment in the Possession. superior courts of common law (p), and the person prosecuting the judgment is entitled to sue out the writ of possession, without any order for the purpose, upon filing an affidavit showing due service of the judgment, and that the same has not been obeyed (g). There may be either one writ for possession and costs, or separate writs, at the election of the claimant (v). Issue of Writ A landlord whose own term has exj^ired after judgment recovered though Land- ^^.Y ^^ none the less entitled to a writ of possession, the burden of lord's own proof Ivine; upon the defendant to show that the issue of such a writ Term Expired. ^ -^ ^ '^ j^^ . ^, " would be unjust. This was held by the Court of Appeal in Knight Clarice. y. Clarke (s). In tliat case the j^laintiff was possessed of one day's residue of a term of 98 years, and the defendant's term by under- lease had expired two days before the plaintiff sued the defendant in ejectment. The action was tried and judgment recovered nine months after the expiration of the plaintiff's title, but Matthew, J., at the trial allowed a writ of possession to issue, and the Court of Appeal affirmed his decision, it not appearing that the freeholder objected to the possession of the plaintiff. At what Time Under the former practice, the judge had power by the statute Execution n q^^^ ^ ^^ ^Vill. 4, c. 70, s. 38 (which was, it may be observed, left may issue. ? j \ ? j ? untouched by the Common Law Procedure Acts), to grant imme- diate i^ossession. This section is, however, repealed by the Statute Law Eevision Act of 1873. There is no provision in the Bules of the Supreme Court as to the time at Avhich a writ of possession may issue, except that there is a general rule, that "As between the original parties to judgment, execution ma}- issue at aii}- time within (i) See Colo Ejec. 219. {p) R. S. C, Ord. XLVIL, r. 1. (k) Wheeler v. Stevenson, 6 H. & N. (7) Id. r. 2. For the mode of enforcing 155. writs of possession, see Chit. Arch. Pr. II. (l) Grant v. Ellis, 9 M. & W. 113. 1045. (m) Doe V. Oxenham, 7 M. & W. 131. (?■) R. S. C, Ord. XLVIL, r. 3. (n) Archbold v. Sculhj, 9 H. L. C. 360. (s) Knight v. Clarke, 15 Q. B. D. 294 ; (0) R. S. C, Ord. XLIL, r. 5. 54 L. J., Q. B. 509— C. A. Sect. 2. — In High Court (Ordinary Action), 859 six years from recovery of the judgment" (0 ; which would seem to Ch.XXII.s. 2. imph^ that execution b}' writ of possession may issue immediately S^covery of after judgment is entered. Execution for mesne profits, &c., or High Court costs, may always, unless it be speciall}' ordered otherwise, issue ^ '^Actfon)^^'^ immediatel}' on the entiy of judgment (»). ■ Sect. 3, — By Proceedings in the County Court. By the consolidating County Courts Act, 1888, 51 & 52 Vict. Recovery of c. 43, there are two methods provided for the recoveiy of real to'^soz?^ ^ property, which are sometimes distinguished as " recovery of pos- session " and "ejectment." The limit in both cases is the same where neither annual value nor rental exceeds 50?., but before the Act of 1888 the limit in the latter case was where neither annual value nor rental exceeded 20Z. The former method of recovering the demised jiremises is confined to the cases of wrong- ful holding over, and leaving rent unpaid. For these cases a special procedure is provided, analogous to that of the Common Law Procedure Act, 1852, sects. 213 and 210. The latter method, so far as the statute goes, is of general application ; but a County Court rule confines it to the cases to which the former method is not applicable {x). The special procedure was introduced in 1856, but it was not until 1867 that the general jurisdiction in " ejectment," as it was then termed, was given to County Courts. (a) Actions hy Landlords for Recovery of Small Tenements after Term expired, or determined hy Notice to Quit. By the County Courts Act, 1888, 51 & 52 Yict. c. 43, s. 138, Eecoyery of replacing, with one alteration only, sects. 50 and 51 of the Act of ^q^ xalue 1856, 19 & 20 Vict. c. 108 :— ' or less, where ■wrongful When the term and interest of the tenant of any corporeal heredita- liolding over, ment, ivhere neither the vahie of the j^remises nor the rent payable in respect thereof shall have exceeded 501. hy the year, and upon which no fine or C. C. Act, premium shall have been duly paid, shall have expired, or shall have been 1^*8, s. 138. determined either by the landlord or the tenant hy notice to quit (y), and such tenant, or any person holding or claiming by, through, or under him. Holding over shall neglect or refuse to deliver ujy jjossession accordingly, the landlord may 5o/"l!!i,!e° or enter a plaint, at his option either against such tenant or against such jess, under person so neglecting or refusing, in the Court of the district in ivhich the s. 138 of County Courts . „ ^, Act, 1888. {t) E. S. C, Ord. XLIl., r. 22. 1850 was "legal notice to quit." The ' (u) Id. r. 17. oniissionof the word " legal" was suggested {x) C. C. Eules, 1889, Ord. V., r. 3. by Friend v. Shaic, 20 Q. B. D. 374, and (y) The expression in s. 50 of the Act of p. 863 {g), post. 860 Chap, XXII. — Eecovery of the Premises by the Landlord. Cii.XXII. S.3. Recovery of Premises in County Court (Holding over). C. C. Act, s. 138 — contd. Order for Possession. Warrant. Claim for Kent or Mesne Profits. Restriction on Value. Conclusive- ness of Proceedings. C. C. Rules and Forms. Plaint. Jury. premises lie, for the recovery of the same, and thereupon a summons shall issue to such tenant or such person so neglecting or refusing ; and if the defendant shall not, at the time named in the summons, show good cause to the contrary, then, on proof of his still neglecting or refusing to deliver up possession of the premises, and of the yearly value and rent of the premises, and^ of the holding, and of the expiration or other determination of the tenancy, with the time and manner thereof, and of the title of the plaintiff, if sticli title has accrued since the letting of the premises, and of the service of the simimons, if the defendant shall not appear thereto, the judge may order that possession of the premises mentioned in the plaint be given by the defendant to the plaintiff, either forthwith or on or before such day as the judge shall think fit to name j and if such order be not obeyed, the registrar, whether such order can be proved to have been served or not, shall, at the instance of the plaintiff, issue a warrant authorizing and requiring the bailiff of the court to give possession of such premises to the plaintiff. In any such plaint against a tenant (z), the plaintiff may add a claim for rent or mesne profits, or both, down to the day appointed for the hearing, or to any preceding day named in the plaint, so as the same shall not exceed 501. (a). Under these words neither the rent paid between the litigant parties (b) nor the annual value of the premises to let to a tenant from year to year at a fair rack-rent (without deducting any ground- rent paid to a superior landlord) may exceed 50/. per annum (c). If any fme or premium was paid the remedy is b}' ejectment in the High Court ; unless, indeed, neither the annual value nor the rent exceed 201. ((/). A warrant obtained by a landlord proceeding against a lessee not in possession is not conclusive against the person actually in possession. The time and mode of proceeding under the above act are now regulated by certain consolidated rules of practice and forms which came into operation on 1st February, 1889, annulling the previous consolidating rules of 1886 (f). The action must be commenced by a plaint (/) entered in the County Court of the district wherein the tenements are situate ; and thereupon a summons {[/) shall issue. This must be served pursuant to section 141(//). The decision of the judge as to the sufficiency of the service is conclusive (?)• Either party can require (~) Not against any other person so neglecting or refusing, &c. {a) This part of the section cannot be made use of when the action is against a sub-tenant ; Campbell v. Loader, 3 H. & C. 520 ; 34 L. J., Ex. 50. {b) Broiun v. Cocking, L. R., 3 Q. B. 672 ; 37 L. J., Q. B. 250. (c) Elstun V. Rose, L. R., 4 Q. B. 4; Re Hclstonc, 38 L. J., Q. B. 6. {d) Post, Sect. 3 (c). (c) See the prefix and suffix to the Rules. (/) This is prepared by the Registrar and entered in the book kept for that pur- pose in his office. [g) See Form, post, Appendix E., Sect. 3 (c). (h) Post, sub-s. (c). (i) Robinson v. Lenaghaii, 2 Exch. 333. Sect. 3. — Proceedings in County Court (Holding over). 861 a jury to be summoned (/,). To maintain the action under the above Ch.XXII. s.S. section it is necessary tliat the pLiintiff should prove : Recovery of That the ordinary rehition of Landlord and tenant of the property Coimti/ Court claimed has existed between the plaintifi' and defendant ; or between (-^'^^<^'"^o^"g>')- the plaintiff and some other person bv, throu^b, or under whom Pr-'^ofof the defendant holds or claims (/)• It is not necessary to show that the plaintiff was the original lessor ; it is sufficient to prove that when the term expired, or was determined, he was the immediate reversioner of the tenements : or if such reversion then belonged to several persons, as joint tenants, coparceners or tenants in common, that the plaintiff was one of the persons so entitled (m). But if the title of the plaintiff accrued since the letting of the jDremises, such title must be deduced from the landlord and piovedin the usual manner. Thus under the repealed Act of 1846, where the plaintiff claimed as a mortgagee, and the defendant under a demise from the mortgagor subsequent to the mortgage, and the defendant had never attorned to the plaintiff or consented to hold under him : it was held, that the statute did not applv and consequentlv that the County Court had no jurisdiction (h). Again, where the defendant had been let into possession under an agreement to purcbase, one of the terms of which was that he should pay 8.s. a week rent, to be afterwards deducted from the purchase-money, and it appeared that he had paid sums wbich, together with the set-off, equalled the amount of the purchase-money : it was held, that the ordinary relation of landlord and tenant did not exist between the parties, and therefore tbat the County Court had no jurisdiction (o). The defendant must be proved to have been either the tenant Troofof to whom the demise was made, or a person "holding or claiming b}', f)^f'^'"i,'^ ? through, or under him." Any person who obtains the possession from the tenant by the tenant's voluntary act directly or indirectly, either as an assignee or a sub-tenant, or by fraud and collusion with the tenant, is within tbe statute, and estopped from denying the landlord's title {p). Proof tbat the defendant came into possession after the original tenant entered and during the continuance of the demise is prima facie evidence that he obtained possession as assignee of the term (q), or in some wa}' claims by, through, or under the tenant within the meaning of the statute. There must be no real dispute or question between the parties as j^o Real to the right and title of the plaintiff, or of the defendant, to the ^'^I'll^.f ''^ ^^ *= ^ ' ' the Title. (k) C. C. Rules, Ord. XXII., r. 3. (o) Banks v. Rchheck, 2 L., M. k P. {l) Jones V. Owen, 5 U. & L. 669 ; Banks 452. V. Eebbeck, 2 L., M. & P. 542. {p) In re Emery v. Barneit, 4 C. B., (to) See detinition of 'landlord" iu N. 8. 423 ; 27 L. J., C. P. 216. s. 186 of the County Courts Act, 1888. (r?) See Cole Ejec. 224. (u) Jonea v. Owen, 5 D. & L. 669. 862 Chap. XXII. — Eecovery of the Premises by the Landlord. CH.XXII. S..3. Recovery of Premises in County Court {Holdiny over) . Duty of the Judge to ascertain whether there really is a Question as to the Title. tenements ; otherwise the County Court will have no jurisdiction under this act (r), unless by the written consent of both parties, signed by them or their solicitors (s). Generally speaking, as we have seen, a tenant cannot dispute a landlord's title {t). And where and so far as that rule is applicable, no such dispute or question can legally arise between the parties {u). In some cases, however, a tenant may provel that since the demise his landlord's title has ceased, or been dulj- determined, or assigned over to some third person, who has made a fresh demise or conveyance to the defendant; or, if the plaintiff be not the original lessor, or the person from whom the defendant obtained possession of the demised premises, the ■latter may prove that he paid rent to the plaintiff, or submitted to a distress made b}^ him for rent, b}^ mistake and in ignorance of the real facts ; and that the plaintiff really has no title. In such cases, upon proof of facts of the above nature, the Count}- Court would have no jurisdiction to proceed further (a;). But it is the duty of the judge to inquire into the facts and to hear the evidence, so far as is necessary to ascertain that a real question as to the title legally ma}' and actually does exist between the parties ; and that it is not a mere pretence raised by the defendant for the sole purpose of ousting the jurisdiction of the County Court. If it appear to him that a bona fide question as to title does exist, he should decline to proceed further, or strike out the cause for want of jurisdiction {y), in which case he may (if he thinks fit) award costs against the plaintiff (^). If it appear that no question can legally be raised by the defendant, or that no such question does actually exist, and that the objection is a mere pretence of the defendant for the purpose above mentioned, the judge should overrule the objection and j)ro- ceed to hear and determine the action (o). If he decide erroneously upon the question whether certain facts do raise a question of title, the defendant may api^eal to the High Court of Justice {h) ; or a rule or order (in lieu of a mandamus) may be applied for to the court pursuant to s. 131 of the County Courts Act, 1888 {c) ; or a l^rohibition may be applied for under ss. 127, 128 of that Act ((?)• (?•) Pearson v. Glazeirook, L. R., 3 Ex. 27; 37 L. J., Ex. 15. In this case the defendant claimed the freehold, subject only to the payment of a quit rent. (s) County Courts Act, 1888, s. 64 ; see the form of such consent. No. 70, in the Scliedule to the C. C. Rules. {t) Ante, 225. ill) lie Eiiury v. Barnett, 4 C. B., KS. 423 ; 27 L. J., C, P. 216 ; Lloyd v. Jones, 6 C. B. 81 ; Bcirhour v. Barlow, 8th July, 1856, per Bramwell, B., at chambers. [x) County Courts Act, 1888, s. 56 ; Marwood v. Waters, 13 C. B. 820. (y) Pearson V. Glazcbrook, L. R., 3 Ex. 27 ; 37 L. J., Ex. 15 ; Sewcll v. Jones, 1 L., M. &P. 525. {z) County Courts Act, 1888, s. 114. {a) Fcaron v. Norvall, 5 D. & L. 439 ; Lilley v. Harvey, Id. 648 ; Oiccn v. Pearce, Id. 654, n. ; Re Emery v. Barnett, supra ; Lotkam V. Spedding, 17 Q. B. 440 ; Lloyd V. Jones, supra. (b) Monntncy v. Collier, 1 E. & B. 630. (c) In re Emery v. Barnett, supra. (d) Jones v. Owen, 5 D. & L. 669 ; Banks v. Rcbbcck, 2 L., M. & P. 452 ; Sect. 3. — Peoceedings in County Court (Holding over). 863 The plaintiff must prove that "neither the value of the premises Ch.XXII. .s.3. nor the rent pavable in respect thereof," has exceeded 50L bv the ^corery of , ' Jr^remises in year (ante, p. 860). Under the Act of 1846, 9 & 10 Yict. c. 95, County Court s. 122, if the rent reserved were mider 50/. per annum, and no ^^'^^'^'"no^^'-)- fine paid, the court had iurisdiction, notwithstandina; the annual ^either ^ ' . "^ . . . ° . Annual Value value of the ijremises had increased, by buildings or otherwise, to nor Rent must a much greater amount than 50/. (c). But under the Act of 1888, '"''^^^'^ ^^^• re-enacting the Act of 1856, neither the rent nor the annual value may exceed 50/., and this must be proved at the trial, whether the defendant appear there or not. He must show that " no fine or premium" was paid for the lease. There must This will sufficient!}^ appear by the lease, in the absence of express -Fiueor^ proof to the contrary. Premium. He must show that the term or tenancy has expired or been The Term determined either by the landlord or the tenant by a sufficient notice ™^^^t have to quit. The statute expressly requires proof at the trial of tlie been deter- holding, and of the expiration or other determination of the tenanc}', Notice to with the time and manner thereof, whether the defendant appear at '^^^^*'- the trial or not. AVe have already (ante, p. 357) fully considered the law as to notices to quit. When the landlord seeks to recover the premises by reason of a forfeiture committed by the tenant, and a condition or proviso for re-entry, the action is not maintainable under this section (/). It had been said that the term ^' legal notice to quit," in the Meauingof repealed sect. 50 of the Act of 1856, meant only the notice to quit, Quit°"''^'' ^ the natui-e and character of which followed as matter of law from the state of the facts, and that the jurisdiction under the section was confined to tenancies from year to year. This was in a case ((/) of a tenancy for three years, with a power of re-entry in pursuance of which the landlord had given a notice to quit, so that the action seems to have been in reality for a forfeiture, but whether this was so or not, it is hard to see how the Court construed " legal " notice to quit in any other sense than " legedly sufficient," and it is sub- mitted that at all events " notice to quit " in the present section includes a notice given in exercise of an option to determine a lease or any other notice expressly stipulated for. He must show that the defendant has neglected or refused, and Defendant still neglects or refuses, to deliver up possession of the premises. ^^ refuse'to For the purpose of showing this, a demand of possession should be ^eliver up Possession. Marivuod v. Waters, 13 C. B. 820 ; Ee 8 Exch. 879 ; 2 E. & B. 669. Chew V. Holroyd, 8 Exch. 249 ; Laivford {/) Doc d. Cundy v. Sharplcy, 15 M. & V. Partridqe, 1 H. & N. 621 ; 26 L. J., W. 558. Ex. 147. {g) Friend v. Skaio, 20 Q. B. D. 374 ; (e) In re Earl of Harrington v. Ramsey, 36 W. R. 236 ; 58 L. T. 89. 864 Chap. XXII. — Eecovery of the Premises by the Landlord. Ch.XXII. s.3. Hecovery of Premises in County Court [Holdinf/ over) . Service of Summons. Mesne Profits. Defendant may prove that there is no Tenancy between Plaintift" and Defendant. I'hiintilfs Title ceased. Title in Defendant. made, and, if possible, a refusal obtained in like manner as under the 15 & 16 Vict. c. 76, s. 213 {li). The act requires "proof of his still neglecting or refusing to deliver up possession of the premises." But proof that he retains possession of them after demand made, as above mentioned, will be prima facie evidence that he still refuses, or at all events neglects to deliver up possession (i). If the defendant do not appear at the trial, the service of the sum- mons must be proved {k). The judge's decision as to the sufficiency of the service is conclusive (Z). If the plaintiff seek to recover rent or mesne profits pursuant to sect. 138 (ante, p. 859), he must prove the amount in like manner as in an action of ejectment. But the other evidence as to the tenancy^ &c. will generally be sufficient to prove the amount or value of the mesne profits. When the landlord proceeds under this section, the defendant ma}^ l^roduce contradictory evidence, so far as he is not estopped from so doing by the relation of landlord and tenant. Tlius^ he may show that the ordinary relation of landlord and tenant never existed as between him and the plaintiff, or as between any persons under whom they respectively claim {m). But, generally speaking, if the defendant's tenancy to the phxintiff be sufficiently proved, or if it appear that the defendant obtained possession through or under the phxintiff or his tenant, the defendant will not be per- mitted to dispute the plaintiff''s title ; and where that is the case, no dispute or question as to the title can arise, so as to exclude the jurisdiction of the County Court {n). Sometimes, however, he may show tliat since the demise the plaintift"s title has expired or ceased, or been determined, or assigned to some person from whom the defendant has obtained a fresh demise or conveyance (o) ; or that the defendant has a title to the j)remises not inconsistent with his tenancy to the plaintiff during the term. When anything of this sort is proved, and a bond fide question as to title sufficiently appears, the judge should, as we have seen, abstain from deciding in favour of either party, for want of jurisdiction (j)). It Avas once- held to be no defence that an action of ejectment was pending in one of the superior courts for the same property upon the same title {<]) ; but a County Court Rule (see p. 875, post) now meets this difficulty. (/() Ante, Sect. 2(a). ((■) See Cole Ejec. 656. (A:) As to the mode of service, see sect. 141. (1.) llobinson v. Lcnaghan, 2 Exch. 333. {m) Jones V. Oiven, 5 D. & L. 699 ; Banks V. llebheck, 2 L., M. & P. 452. in) Barhour v. Barloiu, Cole Ejec, 655, n. (a). (o) See Cole Ejec. 217, 657. [p) County Courts Act, 1888, s. 56. [q] Bissill V. Williamson, 7 H. & N. 391 ; 31 L. J., Ex. 131. Sect. 3. — Proceedings in County Court (Holding over). 865 If a verdict and judgment be found for the plaintiff, the judge will Ch.XXII.s.3. order that possession of the premises mentioned be given bv the Recovery of ' Freimscs in defendant to the plaintiff, either forthwith or on or befoi'e such a Countij Court day as the judge shall think fit to name (r). {Hohr n,gover). An order of a Countv Court iudg-e under sect. 138 is not analoQ-ous ■J.V^lsment tor . . . Plamtitf. to a judgment in ejectment, so as to entitle the landlord to maintain Pioceedint^s a subsequent action of trespass for mesne profits, l^c. It creates not conclu- no estoppel is). Nor, wdiere the order is obtained bv the landlord ,-, ' , „ \ . , * . . Camphcll V. jiroceeding against his tenant, but not against a person in possession Loader. of a sub-lease, is the order conclusive against the sub-lessee, who may, notwithstanding the order, sue the landlord in trespass, if the landlord had not in fact a right to possession (0- The costs are in the discretion of the court bv virtue of s. 113 of Costs of Wit' the County Courts Act, 1888, under which, however, they abide the "^^^^■'' '''■ event " in default of any special direction." Even where the court decides that it has no jurisdiction, it mai) award costs against the plaintiff {u), who ought to have proceeded in the proper court. By Countv Court Rules, Order L a., Rule 10 (made in February, Taxation of 189'2, and replacing the corresponding and repealed rule 19 of Order L. of the Rules of 1889), it is provided that : — ■ The costs in actions under sections 138 and 139 of the Act (x) shall be taxed in the case of a plaintiff, on the scale applicable to the rent or value of the premises upon which the Court Fees are assessed, plus the amount of any rent and mesne profits recovered, and in the case of a defendant on that applicable to the said rent or value, plus the amount of the rent and mesne profits claimed. If the yearly rent or value of the premises exceeds 20/., the Appeal. unsuccessful part}' may appeal, as of right, pursuant to sect. 120 of the County Courts Act, 1888, and if the}' do not exceed that amount, there is an appeal by leave under the same section {y). If the order for the delivery of possession made at the hearing Warrant I^OSSGSSIO be not obeyed, the registrar, whether such order can be proved to have been served or not, is bound at the instance of the plaintiff to issue a warrant to the bailiff of the court to give possession to the plaintiff (^). For the effect of a warrant, and the protection (r) See Form, i^ost, Ajipendix E., an action of tre-spass for tlie eviction, l\y Sect. 3 (c). the decision of the County Court judge, (s) Camphcll v. Loader, 3 H. & C. 520 ; that the tenancy was not weekly, but 34 L. J., Ex. 50. yearly. {t) Hoclson V. Walker, L. R., 7 Ei|. 55 ; {it) County Courts Act, 1888, s. 114. 41 L. J., Ex. 51 ; 25 L. T. 537 ; 20 \V. R. [x) I.e. of the Act of 1SS8, asto recovery 489, diss. Martin, B. See, however, Flit- of small tenements, see p. 859, ante, and tersv. Allfrey, L. R., 10 C. P. 29, where j). 866, post, a landlord having evicted his tenant under {y) Post, Sect. 3 (c). a warrant as for a weekly tenancy, and [z) Ante, 860 ; see Form, post, Appen- having sued in a Countv Court for arrears dix E., Sect. 3 (c), Xo. 4. of a weekly rent, was held concluded, in L.T. 55 for ossession. 866 Chap. XXII. — Recovery of the Premises by the Landlord, Ch.XXII. s.3. Recovery of Premises in County Court {Holding over) . Recovery of Premises of .50?. value or less where Half- Year's Eent in Arrear. C. C. Act, 1888, s. 139. thereby afforded to the bailiff, &C., and also the protection of the plaintiff from any action of trespass, see sections 142 — 145 of the County Courts Act, 1888, post, p. 868. What Land- lord must prove. Order for Possession. Warrant for Possession. (b) Actions hy Landlords for Recovery of Small Tenements, for Non-jMymcnt of Rent. By sect. 139 of the County Courts Act, 1888, re-enacting with verbal alterations, sect. 52 of the Count}^ Courts Act, 1856, in cases where neither rent nor value exceeds 50L a year, where a half-year's rent is in arrear, and where the contract of tenancy contains a proviso for re-entry for non-payment legally applicable to the case, a summary procedure for recovery of the premises b}' the landlord is provided as follows : — When the rent of any corporeal hereditament, tvhere neither the value of the premises nor the rent payable in respect thereof exceeds 50^. by the year [see ante, p. 860], shall for one half-year be in arrear, and the land- lord shall have right hy law to re-enter for the non-payment thereof, he may, teithout any formal demand or re-entry, enter a plaint in the Court of the district m tvhich the premises lie for the recovery of the premises ; and thereupon a summons shall issue to the tenant, the service whereof shall stand in lieu of a demand and re-entry, and if the tenant shall, 5 clear days before the return day of such summons, pay into court all the rent in arrear and the costs, the action shall cease ; but if he shall not make such payment, and shall not at the time named in the summons show good cause why the premises should not be recovered, then, on p^'oof of the yearly value and rent of the premises, aiid of the fact that one half-yearns rent ivas in arrear before the plaint was entered, and that no sufficient distress rvas then to he found on the premises to countervail such arrear, and of the landlord's power to re-enter, and of the rent heing still in arrear, and of the title of the plaintiff, if such title has accrued since the letting of the premises, and of the service of the summons, if the defendant shall not appear thereto, the judge may order possession of the premises mentioned in the plaint to be given by the defendant to the plaintiff on or before such day, not being less than 4 weeks from the day of hearing, as the judge shall think fit to name, unless within that period all the rent in arrear and the costs ai'e paid into court, and if such order be not obeyed, and such rent and costs are not so paid, the registrar shall, whether such order can be proved to have been served or not, at the instance of the plaintiff, issue a warrant authorizing and requiring the bailiff of the court to give possession of such premises to the plaintiff, and the plaintiff shall, from the time of the execution of such zvarrant, hold the p)^emises discharged of the tenancy, and the defendant and all persons claiming by, through, or under him shall, so long as the order of the court remains unreversed, be barred from all relief. This section is very similar in substance and effect to sect. 210 of the Common Law Procedure Act, 1852, 15 & 16 Vict. c. 76 (ante, p. 837), save that it is restricted and confined to small cases, i.e. where neither the annual value nor the rent exceeds 50/. Any fine or Sect. 3. — Proceedings in County Court (Rent Unpaid). 867 premium paid for the lease will not deprive the Count}- Court of Ch.XXII. s.3. iurisdiction under this section, as it Avould under section 138 Recovery of ■^ Premises in (ante, p. 859). Coiody Conn The mode of proceeding under this section is similar (mutatis jj^^'aln mutandis) to that under section 138. ^;^ :, ' ^ • • IV ^ ^ ^ ^ ^ ■ Procedure. Before entering his plaint the plaintin should clear!}- ascertain pj.gijj-,^ijjj^j. that he has " a rir/Jit hi/ law to re-enter for the non-payment " of one Points- half-year's rent in arrear. He can have no such right except by 5'"^'* ^° , . , ' Re-enter. virtue of some condition or proviso tor re-entry contained m the lease or agreement (whether by deed, writing, or oral agreement, express or implied) under which the defendant holds ; nor until the time or period (if any) thereby allowed to save the forfeiture has elapsed (a) ; and he should further ascertain that there is no sufficient <[istvesH to he found on the premises to countervail such arrear (h). No sufficient Distress The distress need not be sufficient to countervail "all the arrears," if more than one half-year's rent be due ; but it is otherwise under 15 Ot 16 Vict. c. 76, s. 210, which is difterently worded in this respect. The plaintiff will be put to exactly the same proof as in an action Half-a- ^ ^ ' . • , I Years Rent under sect. 138, except that, in place ot proving that tlie tenancy lu Advance. was determined by notice or expired, and that the tenant has refused J'q ffj ^'f^j.*^ to give up possession, be must give evidence of the fact that one halt-year's rent was in arrear before the plaint was entered ; and that before and at the time that the plaint was entered, the landlord Jiad poicer to re-enter for non-payment of the said lialf-year's rent. This will appear by the lease or agreement under which the defendant holds, or by tlie parol evidence of the tenancy, including the express condition or proviso for re-entry on non-iniyment of rent. It must appear that the number of days (if any) allowed by such condition ■or proviso for payment of the rent to save the forfeiture elapsed before the plaint was entered (c). The procedure in case of the order for possession being disobeyed Warrant for •nil • 1 -i-.rv/i cff\\ Possession. Will be the same as in cases under sect. 138 (ante, p. 859), •(c) Provisions appUeaUe hotJi to '' JlohUjig over'' and"Iient Unpaid.'" There are certain provisions in the County Courts Act which, as Provisions of '■ \ . ,. n County Courts they apply equally to both the above forms ot action tor recovery ol Acts as to possession by landlords from their tenants, may be best noticed at one r^Ynemeiits.^ time in this place. They relate to the following matters : — (i.) Se]-vice of Simiinons. By sect. 141 of the County Courts Act, 1888, re-enacting s. 54 of How Sum- the County Courts Act, 1856, 19 e^ 20 Vict. c. 108, " a summons for {a) Doe d. Dixon v. Eoc, 7 C B. 134. ante, 338. {!') As to the mode of proving this, see (c) Doe d. Buon v. Hoc, 7 C. B. 134. 868 Chap. XXII. — Eecoveey of the Premises by the Landlord. Ch.XXII.s.3. the recovery of a tenement may be served like ordinary summonses Recover!/ of ^^ appear to plaints in the Court : and if the defendant cannot be Fremiscfi in . Cowiti/ Conrt found, and his place of dwelling shall either not be known, or " HohUnri admission thereto cannot be obtained for serving any such summons, over," or a coj)y of the summons shall be posted on some conspicuous part of Unpaid''), the premises sought to be recovered, and such posting shall be deemed good service on the defendant." 19 & 20 Vict. c. 108, s. 53. Notice of Summons by Tenant to his immediate Landlord. Penalty. (ii.) Notice by Suh-tenant to Jiis immediate Lessor of Summons for Recovery of Possession. By sect. 140 of the County Courts Act, 1888, 51 cl' 52 Vict. c. 43, exactly re-enacting 19 i^' 20 Vict. c. 108, s. 53, " where any summons for the recovery of a tenement as is hereinbefore specified shall be served on or come to the knowledge of any sub-tenant of the plaintiff's immediate tenant, such sub-tenant being an occupier of the whole or of a part of the premises sought to be recovered, he shall forthnith give notice thereof to his immediate landlord, under penalty of forfeitincf three years' rack-rent of the premises held by such sub-tenant to such landlord, to be recovered, whatever the amount thereof, by such landlord, by action in the court from nJiicJi sncli sionmotis shcdl hare issued; and such landlord on the receipt of such notice, if ]iot originally a defendant, may be added or substituted as a defendant to defend possession of the premises in question." This section is similar in substance and effect to sect. 209 of the Common Law Procedure Act, 1852. Warrant for Possession — how executed. Date and Duration of Warrant. Protection of Judge, Regis- trar, ISaiiiff, &c. (iii.) Warrant (f Possession. By sect. 142 of the County Courts Act, 1888, exact!}' re-enacting 19 & 20 Vict. c. 108, s. 55, " any warrant to a bailiff" to give posses- sion of a tenement shall justify the bailiff' named therein in entering ujjon the premises named therein, with such assistance as he shall deem necessary, and in giving ])ossession accordingly, but no entry upon any such warrant shall be made except between the hours of nine in the morning and four in the afternoon." By sect. 143, exactly re-enacting sect. 56, " every such warrant shall, on whatever day it may be issued, bear date on the day next after the last day named b}' the judge in his order for the delivery of possession of the premises in question, and shall continue in force from three months from such date and no longer, but no order for delivery of possession need be drawn up or served." By sect. 144, the judge or registrar issuing the warrant, and the bailiff' executing it, are protected from any action or prosecution brought by reason that the person suing out the warrant had not lawful right to the possession of the premises. Sect. 3. — In County Court ("Holding over," or "Rent Unpaid"). 869 And by sect. 145, re-enacting with amendments sect. 60, a land- Cii.XXII. s.3. lord having lawful title is protected as follows : — Recoveri/ of Premises in "Where the landlord at the time of applying for such Avarrant as aforesaid ^'oi(»ty Court had lawful right to the possession of the premises, or of the part thereof, so '■'■ Holdhui held over as aforesaid [see sect. 138, p. 859], neither the said landlord nor ofw," or his agent, nor any other person acting in his behalf, shall be deemed to be " -^^.'"f a trespasser by reason merely of any irregularity or informality in the mode i of proceeding for obtaining possession under the authority of this act, but Protection of the partv ao'orieved mav, if he think fit, bring an action for such irregularitv ^"' V'- "^ or informality, in which the damage alleged to be sustained thereby shall larity. be specially laid, and may recover full satisfaction for such special damage g. 145. with costs of the action : Provided that if the special damage so laid be not proved, the defendant shall be entitled to a verdict, and that if proved, but assessed at any sum not exceeding five shillings, the plaintiff shall recover Costs of no more costs than damages, unless the judge before whom the trial shall Landlord in have been held shall certify that in his opinion full costs ought to be ' allowed (c). (iv.) Costs, and Taxation of Costs. Costs are in the discretion of the Court by virtue of s. 113 of the Costs, and County Courts Act, 1888, and the taxation is on the same scale as that of proceedings for recovery of small tenements after terra or notice to quit expired, under Order L a., Piule 10, of the Count}' Court Iiules, set out ante, p. 865. (v.) Ap2)cal. By sect. 120 of the Countv Courts Act, 1888, 51 & 52 Vict. c. 43, Appeal by 1 ' • ^ r ^ '/-^ /^ i • / c 1 1 Leave up to there is an appeal irom the County Court on any point ot law, by oQL. and as of leave of the judge of the County Court ((7) if the rent or value of the \^S^^^ i" "*''^*^'^ premises does not exceed twenty pounds, and as of right in other cases. This section, which has the same elfect in the action under sect. 138, for "recovery of tenements" held over (see ante, p. 859) as it has in the action under sect. 139 for "recovery of tenements" for non-payment of rent (see ante, p. 866), hut which gives an appeal as of right in all ordinary actions of " ejectment " (see post, p. 871) is as follows : — "If anv partv in any action or matter shall be dissatisfied with County Courts ' Act 1*^88 the determination or direction of the judge in point of law or equit}^ ^i ^ 52 y'ict. or upon the admission or rejection of any evidence, the party ^- ^^> ^- ^'^^■ aggrieved by the judgment, direction, decision, or order of the judge may appeal from the same to the High Court, in such manner and subject to such conditions as may be for the time being provided by the Piules of the Supreme Court regulating the procedure on appeals Appeal to from inferior courts to the High Court (c) ; provided always, that under s. 120 (c) Compare s. 6 of Small Tenements (c) See R. S. C, Ord. LLX., rr. 10—17. Com^tTEt Recovery Act, 1838, p. 879, infra. added by 11. S. C.,Dec., 1885. By Rules 10 ^ggg ' * ' {d) SeeShreiusburij{-t\irlof)v.GarJield, and 12 the appeal must be by notice of 60 L. J., Q. B. 765. motion stating the grounds of the appeal, 870 Chap. XXII. — Eecoyery of the Premises by the Landlord. Ch.XXII. s.3. there shall he no appeal in any action of contract or tort, other than Recovery of ^^^ action of eiectment or an action in -which the title to any corporeal Fremtses in •' _ . . '' Comity Court or incorporeal hereditament shall have come in question, where the '' Boidinc/ ^Q^^ or damage claimed does not exceed twenty pounds .... nor over" or {yi any action for the recovery of tenements ichere the yearly rent or Unpaid''). valuc of the iwemises does not exceed twenty jiounds, nor in proceed- ings in interpleader where the money claimed or the value of the goods or chattels claimed, or of the proceeds thereof, does not exceed twenty pounds, unless the judge shall think it reasonable and proper that such appeal shall be allowed, and shall grant leave to appeal. At the trial or hearing of any action or matter, in which Jiidge's there is a right of appeal, the judge, at the request of either party, ° ®" shall make a note of any question of law raised at such trial or hearing, and of the facts in evidence in relation thereto, and of his decision thereon, and of his decision of the action or matter." Judge's By sect. 121 the judge is bound to furnish a copy of any note .'^■''■. . taken by him in pursuance of the above section, for use at the hear- High Court, ing of the appeal. By sect. 122 the High Court may on appeal draw inferences of fact, and may either order a new trial or order judg- ment to be entered for any party. By sect. 123 no appeal lies if before the decision of the judge is pronounced, the parties agree in writing, signed b}' themselves or their solicitors or agents, that his decision shall be final. By sect. 124 there is no appeal except as by the act provided ; and by sects. 126 — 132 provisions are made for removing actions by certiorari and for staying them by prohibition, in cases of excess of the County Court jurisdiction. (vi.) Fees. By the Treasury Order of 1st January, 1889, the following fees (amongst others) may be taken in the County Courts : For every plaint or petition, one shilling in the pound. Where the claim or demand exceeds forty shillings, and an ordinary summons is to be served by bailiff, an additional fee of one shilling. AVhere in any case the number of defendants shall exceed three, an additional fee of one shilling for each defendant above three. For every hearing, two shillings in the pound. To be charged once only in an action, unless a new trial ordered. In all cases where the defendant shall either personally, or by his solicitor or agent, admit the claim, one half of the fee paid by the plaintiff for the hearing of the plaint shall be the notice to be an S days' notice, and to within 21 days from the date of the judg- be served on every party directly affected nient complained of. Sect. 3. — Proceedings in County Court. 871 returned to the plaintiff by the registrar of the court, althouoh Ch.XXII. s.3. the court may have been required to decide upon the terms and conditions upon which the chiim is to be paid. An additional hearing fee shall be taken for every new trial. No fee shall be payable for hearing any application for a new trial, or to set aside proceedings. For issuing every warrant, eighteenpence in the pound. In plaints for the recovery of tenements when the term has expired or been determined by notice, all poundage, except as aforesaid, shall be estimated on the amount of the weekly, monthly, quarterly, half-yearly, or yearly rent of the tenement, as such tenement shall have been let by the week or by the month, or for any longer period ; and if no rent shall have been reserved, then on the amount of the half-yearly value of the tenement, to be fixed by the registrar. Where a claim for rent or mesne profits, or both, is added to a plaint for the recovery of a tenement, an additional poundage shall be taken on the amount or amounts so claimed, but where thereby the total amounts on which poundage would be taken shall exceed twenty pounds, the poundage shall be estimated on twenty pounds onl}-. In plaints for the recovery of tenements for non-payment of rent, all poundage, except as aforesaid, shall be estimated on the amount of the half-yearly rent of the tenement. In every case where the poundage cannot be estimated b}' any rule in this schedule, it shall be estimated on twenty pounds. All fractions of a pound, for the purpose of calculating poundage, shall be treated as an entire pound. No increase of fees shall be made b}' reason of there being more than one plaintiff or defendant, except as before directed, where the number of defendants exceeds three. Recovery of Premises in County Court. (d) Ordinary Action of " Ejectment" in County Courts. The right to bring an ordinary action of ejectment in a county court as distinguished from the action for recover}^ of tenements (1) where held over or (2) where rent unpaid was first given by the County Courts Act, 1867, s. 11, where neither the value of the lands sought to be recovered nor the rent payable in respect thereof exceeded 2,01. a year. The 59th section of the County Courts Act, 1888, 51 & 52 Vict. c. 43, raises the limit from 20/. to 50/. and enacts that — All actions of ejectment, where neither the A'alue of the lands, tene- ments, or hereditaments, nor the rent payable in respect thereof, shall Ejectment in County Court where neither Annual Value nor Rent exceeds 501. County Courts Act, 1888, 872 Chap. XXII. — Eecoveky of the Pre mises by the Landlord. Ch.XXII. s.3. Recovery of Premises in County Court [Ordinary Action). 501. limit- Remitter to High Court for excess of limit, or title in dispute. Notice, under Conveyancing Act, before jiroceeding for Forfeiture. Appeal in Ejectment. Meaning of "Kent Pay- able " and " Annual Value." County Court Rules. Count}' Court Rules, Ord. XXXVII. r. 25. exceed the sum of 50^. by the year (f), may be brought and prosecuted in the court of the district in which the lands, tenements, or heredita- ments are situate ; provided that the defendant in any such action of ejectment, or his landlord, may Avithin one month from the day of service of the summons, apply to a judge of the High Court at Chambers for a summons to the plaintiff to show cause why such action shovild not be tried in the High Court on the ground that the title to lands or hereditaments of greater annual value than 50^. would be affected by the decision in such action ; and on the hearing of such summons, the judge of the High Court, if satisfied that the title to other lands would be so affected, may order such action to be tried in the High Court, and there- upon all proceedings in the court in such action shall be discontinued. If the action be for a forfeiture caused otherwise than by non- pa^anent of rent, or certain other causes, it must be preceded b}^ the notice under sect. 14 of the Conveyancing Act alread}'' set out with the excepted cases (ante, p. 349), but the County Court has no power to grant relief against forfeiture under that act, and if the parties do not come to terms the tenant will not be able to obtain relief in the landlord's action in the County Court, but must bring an independent action of his own in the High Court. By sect. 120 of the County Courts Act, 1888 (ante, p. 869), there appears to be an appeal by right in all actions of ejectment. The " rent payable "' means as between the litigant parties, and not any rent that may be paid by a sub-lessee (g), though, if the latter rent exceeds 50/., that would be strong prima facie evidence that the aimual value exceeds 501. The " annual value " means the actual marketable value per annum ; and of this the rent at which the property would let from year to 3'ear to a suitable tenant is a fair criterion (//). The annual value means the annual value of the propert}^ itself, and not of the interest therein of either of the parties ; so that if a ground-rent be pa3'able thereout to a superior landlord, such ground-rent must not be taken into consideration, or deducted in estimating the annual value of the property (//). It is to be observed, that neither the annual value nor the annual rent may exceed 50/., otherwise the County Court will have no jurisdic- tion under this act. The Rules, Orders, and Forms, of proceedings in the County Courts which are now (1898) in force came into operation on the 1st of February, 1889. By C. C. Eules, Ord. V. r. 3, " Where an action can be brought to recover possession of a tenement under the provisions of sections 138 and 139 of the act [i.e. the County Courts Act, 1888, ( /■) Whether any tine or premium shall have been paid or not ; but any such fine or premium may tend to show that the annual value for the time being exceeds 201. {(/) Brown v. Cocking, L. R., 3 Q. B. 67-i ; 37 L. J., Q. B. 2f.O. {h) Ehton V. Rose, L. R., 4 Q. B. 4 ; Re Helstone, 38 L. J., Q. B. 6. Sect. 3. — In County Court (Ordinary Action). 87B ante, p. 859 and p. 866], no action shall be brought under sect. 59 Ch.XXIT. s.3. of the same act. Actions brought under the former sections shall Recoverii nf be distinguished as actions for the recovery of possession, and Coimty Court actions under the last section shall be distinguished as actions for {Ordinary ° A.ction). the recovery of land." This rule re-enacts Ord. XXXVII. r. 25 of In what the lormer County Court Kules. excepted Cases The eifect of the above rule seems to be, that the unliiiaru action °^'^^}^^^'y ' ^■' Actiou 01 of ejectment cannot be maintained in the County Court by a land- Ejectment lord against a tenant, except when the following circumstances brouf^ht in concur, viz.: — 1. Neither the value of the property nor the rent County Court, payable in^resi^ect thereof exceed 50Z. b}' the year (ante, p. 872). 2. It must not be a case of "holding over" after the term has expired, or been determined by a legal notice to quit, given b}' either party ; unless, indeed, there was a fine or premium paid for the lease (ante, p. 859). 3. It must not be for non-payment of rent (ante, p. 866), whether a fine or premium was paid for the lease or not. In these excepted cases, the landlord must follow the special 23rocedure marked out by sections 138 and 139 of the Act of 1888 {ante, pp. 859, 866). To return to the ordinaiy action under s. 59 of the Act of 1888. — Joinder of By Ord. Y. r. 10 of the c' C. Kules, it is provided that " all persons ^'"■*^''- in whom title is alleged must be joined as plaintifis, and the person or i^ersons alleged to be in possession or apparent possession must be defendants." Misjoinder of parties will not, however, defeat the action (Ord. XVII. r. 12). By Ord. IV. r. 1, " No cause of action shall, unless by leave of Of Causes of the judge or registrar, be joined with an action for the recovery of land, except claims in respect of mesne profits, or arrears of rent or double value in respect of the premises claimed or any part thereof, or damages for breach of an}'' contract under which the same or any part thereof are held, or for any wrong or injury to the premises claimed." And by Bule 7 of the same Order, "If at anv time it Joinder of appears, or is made to appear, to the judge that any causes of action of Action, united or claims joined in any action cannot be conveniently tried and disposed of together, he may order separate trials, or may exclude any such cause of action or claim, and may order the pro- ceedings to be amended accordingl}', and may make such order as to costs as may be just." By Ord. VI. r. 4, "In all actions for the recovery of land, the Description of particulars shall contain a full description of the property sought to be recovered and of the annual value thereof, and of the rent, if there be any, fixed or paid in respect thereof." By Ord. VII. r. 7, "The summons in an action brought under Dcliverv of sect. 59 of the Act to recover lands, shall be delivered to the bailifi" Bailiff. 874 Chap. XXII. — Eecovery of the Premises by the Landlord. I Ch.XXII.s.3. liccovery of Premises ui County Court [Ordinary Action). Service in case of Vacant Possession. Appearance by Person not Summoned. Limit of Defence to part of the Property. Form 218. Equitable Defence. Counter- claim. Discontinu- ance of Action by Pliiiiititr. forty (0 clear days at least before the return-day, and shall be served thirty-five clear days before the return-day thereof." This provision as to time is obligatory (/)• By liule 21 of the same Order, " Service of a summons in an action to recover land may, in case of vacant possession, be made b}' posting a copy of the summons upon the door of the dwelling- house or other consi^icuous part of the propertj"." By Ord. X. r. 4, " In actions for the recovery of land, any person not named as a defendant in the summons may, by leave of the judge or registrar, be allowed to ajjpear and defend on filing twelve clear days before the return-day an affidavit, together with as many copies thereof as there are plaintiffs and defendants, showing that he is in possession either by himselt' or his tenant of the property or some part thereof mentioned in the particulars (such part being described in the affidavit with reasonable certainty), and upon such affidavit being filed, the registrar shall enter the name, address, and description of the person filing the same in the plaint book as a defendant in addition to the name of ever}' person originally made defendant ; and shall ten clear days before the return-day give notice, according to the form in the Appendix, by post or otherwise, to the plaintiffs and the original defendants, that the person filing the affidavit has filed the same, and will appear and defend at the trial of the action, annexing to each notice a copy of the affidavit. In all subsequent proceedings in the action, the person filing the affidavit shall be named as a defendant." By liule 5 of the same Order, " In actions for the recoverv of land, any defendant may twelve clear days before the return-day file with the registrar a notice in writing, according to the form in the Appendix, signed by himself or his solicitor, that he intends to limit his defence to a part only of the property mentioned in the particulars, describing that part in such notice with reasonable certainty, and the registrar shall ten clear days before the return- day send the same by post to the plaintift'." A defendant may rely on any equitable ground of defence against the plaintiff"s claim, in which case he must, five clear days before the return-day, file a statement of the grounds he so relies on setting forth each of the grounds of equitable defence separately (J) ; or he may make any counterclaim against the plaintiff, in which case also he must file a coiicise statement of the counterclaim five clear days before the retuni-day (A^^). The discontinuance of the action by the plaintiff is provided for by Ord. IX. r. 1. (0 Barker v. Palmer, L. R., S (,). B. D, 9. [j) OrJ. X., rr. 10, 19. {k) Ord. X , r. 10. I Sect. 3, — In County Coi-rt (Ordinary Action). 875 It ^vrts held, in Bissill v. ]JlUia))ison (/), that the pendency of Ch.XXII. s.3. an ejectment in one of the superior courts was not a bar to the Recovery of , . . „, T • 1 / ■. /-I T Premises in planitin s proceeding m the County Court, under 19 & 20 \ ict. County Court c. 108, for recovery of possession. But now, by Ord. XXII. r. 9, ^!^^ " where at the trial it shall appear that an action for the same cause, . , , , . . „ . ... Discontinu- at tlie suit 01 the same planititi, is pendnig m any other court oi ance of Action record, the court shall order the trial to stand adjourned to a certain |!'^i"^^™'' '' Cause in other day, and unless before such day the action in such other court shall Court. have been discontinued, the action shall be struck out." By Rule 6 of Ord. IX., "Any defendant in an action to recover Confession of IT • ^ !• l^ i 1 <• 1 • Action bv lands may, at any time beiore the return-day, coniess the action, as to Defendant, the whole or any part of the lands, by signing, in the presence of any registrar or of one of his clerks or of a solicitor, and attested by the person in whose presence it is signed, an admission of the title of the plaintiff to the lands or to the said part thereof, and of his right to the possession thereof; and the registrar shall, upon the receipt of such admission, forthwith give notice thereof by post to the plaintiff, and the judge may, on the return- day, upon proof of the signature of the defendant to such admission by athdavit or otherwise, in case the same is not attested by the registrar or clerk, and without any further proof of the plaintiff's title (if no defendant other than the defendant signing such admission defends for the said lands or the said part thereof) give judgment for the plaintiff for the recovery of jiossession and for costs. Provided, that if the plaintiff receive notice of such admission before the return-day, he shall not be entitled as against any defendant signing to any costs incurred subsequently to the receipt of such notice, except the costs of attending the court on the return-day, unless the court shall otherwise order. Provided also, that where the admission is not signed by all the defendants defending for the said lands or the said part thereof the trial shall proceed against all the defendants who shall not have signed as if no admission had been signed." By Ord. XXII. r. 3, "Actions for the recoveiy of land or tene- Jury. ments may, at the instance of either j^arty, be tried by a jury." By C)rd. XXIII, r. 10, "Where in an action to recover land or Judgment, damages in respect of any right relating to land, the title of the plaintiff shall appear to have existed, as alleged in the summons, at the time of entiy of the plaint, but to have expired before the return-day, the plaintiff shall be entitled to judgment according to the fact that he was so entitled, and for his costs of the action, unless (Z) Bissill V. Jnilimnsoii, 31 L. J., Ex. County Courts is derived from the County 131; 7H. &X. 391. The power to make Courts Act, 18S8, s. l'(U. rules " for regulating the practice " of the 876 Chap. XXII. — Eecovery of the Premises by the Landlord. Ch.XXII. S.3. llccovcnj of I'lTiniscs III County Court [Ordinary Execution. Execution for Costs of Defendant. Warrant of Possession. Costs. Taxation of Costs. Special Allowances. Counsel's Fees. the judge shall otherwise order." B3" Eule 46 of Order XXV., where in a similar action "judgment is given for the plaintiff, execution may issue upon a day to he named in the judgment, and if no day he named then it may issue after the expiration of fourteen clear days from the day on which judgment shall have been given." By Eule 47, where "judgment has been obtained for the recovery of possession and costs, there maybe either one warrant or separate warrants of execution for the recovery of possession, and for the costs, at the election of the plaintiff." And by Eule 48, where "judgment is given for the defendants or any of them with costs, executions may issue for the costs upon a day to be named in the judgment, and if no day be named then it may issue after the expira- tion of fourteen clear days from the day on which judgment shall have been given." B3' Ord. XXV. r. 25, a judgment or order for the recovery of land or for the delivery of possession, whether made in an action of ejectment or in an}' other action or matter, may be enforced by warrant of possession, and by Eule 49 of the same Order, " when an order is made for the recovery or for the delivery of possession of land to an}' person, the warrant of possession shall not be issued by the registrar without evidence by affidavit of service of the ordei- and disobedience thereto." Costs are in the discretion of the court, but abide the event in default of any special direction, by virtue of s. 113 of the County Courts Act, 1888. Costs are taxed as in other actions where title comes in question. On this point reference should be made to Heywood's Annual County Court Practice, but it may be mentioned here that the judge may make si^ecial allowances in addition to or in substitution for those to which the party would be otherwise entitled for preparation of minutes of fact or argument when a solicitor conducts a case without counsel, for counsel's fees where there is no local bar in or within twenty miles of the court town (if the court be not within a radius of twenty-five ndles from Charing Cross), and for counsel's fee for interrogatories, kc.{m). Except in so far as is specially directed by the above rules, actions of ejectment in the County Courts will follow the ordinary rules in other actions in these courts. (wi) Heywood's Ainiiuil County Court Practice. Sect. 4. — Proceedings before Justices (Holding over). 877 Sect. 4. — Proceedings before Justices. (a) Recovery of Small Tenemexts ivronrifnlhi held over. The Small Tenements Recovery Act, 1838, 1 i*v: 2 Yict. c. 74, sect. 1, enacts, that if the term he for not more than seven years and the rent he not more than 20/., the tenant may he summoned before justices of the district in which the premises are situate, and if he fail to appear before them and show to their satisfaction why possession should not be given, he may he turned out of possession by their warrant issued to the constables of the district and executed within a period named therein, not being less than twenty-one nor more than thirty days from its date. The section is as follows : — [Whereas it is expedient to provide for the more speedy and effectual recovery of the possession of premises unlawfully held over after the termination of the tenancy : Be it therefore enacted that from and after the passing of this act (?/t»i),] when and as soon as the term or interest of the tenant of any house, land, or other corporeal hereditaments held by him at will, or for any term not exceeding seven years., either without being liable to the payment of any rent, or at a rent not exceeding the rate of twenty jiounds a year, and upon which no fine shall have been reserved or made pay- able, shall have ended, or shall have been duly determined by a legal notice to quit or otherwise, and such tenant, or (if such tenant do not actually occupy the premises, or only occupy a part thereof) any person by whom the same, or any part thereof, shall be then actually occupied, shall neglect or refuse to quit and deliver up possession of the premises, or of such part thereof respectively, it shall be lawful for the landlord {n) of the said premises, or his agent (o), to cause the person so neglecting or refusing to quit and deliver up possession to be served (in the manner hereinafter mentioned) with a written notice, in the form set forth in the schedule to this act (/)), signed by the said landlord or his agent, of his intention to proceed to recover possession under the authority and according to the mode prescribed in this act ; and if the tenant or occupier shall not thereupon appear at the time and place appointed, and show to the satisfaction of the justices hereinafter mentioned, reasonable cause why possession should not be given under the provisions of this act, and shall still neglect or refuse to deliver up possession of the premises, or of such part thereof of which he is then in possession, to the said landlord or his agent, it shall be lawful for such landlord or his agent to give to such justice (^'i^ ) proof of the holding and of the end or other determination of the tenancy, with the time or manner thereof, and where the title of the landlord has accrued since the letting of the premises, the right by which he claims the possession ; and upon Ch.XXIT. s.4. Recovery of Fremi-ses before Justices (Holding over). 1 & 2 Yict. 0. 74, s. 1. Where Term not more than 7 Years at no Kent, or at Rent not more than 20/., Tenant hold- ing over may be served with Notice. {mm) Words in brackets repealed, and omitted from the Statutes Revised. {n) I.e. by sect. 7, the person entitled to the immediate reversion of the premi.ses, or in the case of joint teuarits, tenants in common or coparceners, any one of them. (o) I.e. by sect. 7, " any person usually employed by the landlord in the letting of the premises or in the collection of the lents thereof or specially authorized to act in the particular matter by writing under the Proof of Landlord's Claim before Justices. hand of" the landlord. [])) See Form, Appendix C, Sect. 12 ; and note that by the fcrm of complaint (Appendix E., Sect. 4) a duplicate of the notice is to be annexed to the complaint. And see Dclancy v. Fox, 1 C. B., JST. S. 166 ; tild. 768 ; 26 L. J., C. P. 5, 248. (;y/)) "Justices" is printed "justice" in tlie Statutes Revised, apparently by a cleri3al error. 878 Chap. XXII. — Eecoveey of the Premises by the Landlord. Ch.XXII. s.4. RecGverij of Fremises before Justices {Holding over). Proof of Service of Notice, &c. Warrant of Justices. No entiy on Sunday, &c. Rent, contract to pay Rates and Taxes is not equiva- lent to. Landlord's common law right to re- enter un- affected. Jones y. Foley. Service on Tenant of Notice of Application to Justices. Sect. 2. proof of service of the notice, and of the neglect or refusal of the tenant or occiipier, as the case may be, it shall be lawful for the justices acting for the district, division or place within which the said premises, or any pai't thereof, shall be situate, in petty sessions assembled, or any two of them, to issue a warrant under their hands and seals to the constables and peace officers of the district {q), division, or place within which tlie said premises, or any part thereof, shall be situate, commanding them, within a period to be therein named, not less than 21 nor more than 30 clear days from the date of such warrant, to enter (by force if needful) into the premises, and give possession of the same to such landlord or agent : provided always, that entry upon any such warrant shall not be made on a Sunday, Good Friday, or Christmas day, or at any time except between the hours of nine in the morning and four in the afternoon : provided also, that nothing herein contained shall be deemed to protect any person, on whose application and to whom any such warrant shall be granted, from any action which may be brought against him by any such tenant or occupier, for or in respect of such entry and taking possession, where such person had not, at the time of granting the same, lawful right to the possession of the said premises ; provided also, that nothing herein contained shall affect any rights to which any person may be entitled as outgoing tenant, by the custom of the country or otherwise. A mere contract to pay rates and taxes in consideration of the occupation is not a contract for rent, so that where the tenant paid more than 20L in pursuance of such a contract, it was held that he was within the act(7'). The issue of the warrant does not cause the possession of the party holding over to be protected dtiring the twenty-one days or other period of its currency, and the landlord's right at common law to resume possession at the end of the tenancy (provided that no forcible entry is effected) is imaffected by the statute (s). The service on the tenant of the notice of application to the justices is regulated by sect. 2 as follows : — Such notice of aj^plication intended to be made under this act may be served either personally or by leaving the same with some person being in and apparently residing at the place of abode of the persons so holding over as aforesaid ; and the person serving the same shall read over the same to the person served, or with whom the same shall be left as afore- said, and explain the purport and intent thereof : provided, that if the person so holding over cannot be found, and the place of abode of such person shall either not be known, or admission thereto cannot be obtained for serving such summons, the posting up of the said summons on some conspicuous part of the premises so held over shall be deemed to be good service upon such person. B}' sect. 3, any person obtaining a warrant under the act without having, at the time of granting the same, lawful right to the possession of the premises, is to be deemed a trespasser, though no entr}^ be ( q) Junes V. Cluqmian, 14 M. & W. Vli ; 2 U. & L. 907. (r) Richmond Borowjh Justices, In re, 10 T. L. R. 68. (s) Jones V. Foley, [1891] 1 Q. B. 730 ; fin L. J., Q. B. 4(J4 ; 64 L. T. 538; 39 W. R. 510. Sect. 4. — Proceedings before Justices (Holding oa-er). 879 made, and execution of the warrant may be stayed upon the tenant Ch.XX[I. s.4. becoming bound with two sureties to sue for trespass the person to Recovery of 1 1 1-1-1 11111 Premises whom the warrant was granted until judgment shall have been given before Jusdees in such action of trespass. [Holding over). The protection of the iustices issuing the warrant, and of the ^''^tection of ^ ... Justices, constables executing it, in cases wliere the landlord had right to Constables, possession, and the protection of a landlord having right to posses- ^^"^ ^" °"^" sion but committing some irregularity in the course of the proceeding is provided for as follows, by sects. 5 and 6 : — 5. It shall not be lawful to bring any action or prosecution against the Action against said iustices by whom such warrant as aforesaid shall have been issued, J^'^tij^es or . 11 rr- 1 1 1 1 Lonstables or against any constable or peace otricer by whom such warrant may be barred. executed, for issuing such warrant or executing the same respectivelv, by reason that the person on whose application the same shall be granted had not lawful right to the possession of the premises. 6. Where the landlord at the time of applying for such warrant as Action against aforesaid had lawful right to the possession of the premises, or of the ["^ . "^^l part thereof so held over as aforesaid, neither the said landlord nor his for lrreo-u° atient, nor any other person acting in his behalf, shall be deemed to be a laritj'. trespasser by reason merely of any irregularity or informality in the mode of proceeding for obtaining possession under the authority of this act ; but the party aggrieved may, if he think fit, bring an action on the case for such irregularity or informality, in which the damage alleged to be sus- tained thereby shall be specially laid, and may recover full satisfaction for such special damage, with costs of suit : provided, that if the special Costs of damage so laid be not proved, the defendant shall be entitled to a verdict, Landloid. and that, if proved, but assessed by the jvxry at any sum not exceeding five shillings, the plaintiff shall recover no more costs than damages, unless the judge before whom the trial shall have been held shall certify upon the back of the record that in his opinion full costs ought to be allowed (ss). For the notice under the act, see Appendix C, Sect. 12, post, and Duplicate of for the complaint before justices — to ivlilch a duplicate of the notice annexed to is directed, by the form of complaint, to he annexed — and the Warrant Complaint. of Possession, see Appendix E., Sect. 4, post. The jurisdiction of justices under this act is not ousted by the defendant bona fide setting up the title of a third person (f). The justices should hear and determine ai\y such question. A similar summary remedy is given to the guardians of the poor Sununary of any union or parish with respect to lands vested in them or under aaahist"^ their management or control (u), and to the valuer under inclosure School- . . p , , . , r 1 1 uiasters, &c. acts. 111 respect or encroachments and recent mclosures ot land subject to the provisions of those acts (v). Also against school- masters, &c., who wrongfully hold over, after removal from their office Or); also, to the secretary of state for war(^), (ss) Compare s. 145 of County Courts (v) li> & 16 Vict. c. 79, s. 13 : see Act, 1838, p. 869, supra. ' Chitcutc v. Youldon, 29 L. J., M. C. 197. (0 Eccs V. Davics, 4 C. B., K S. o6. [x) 23 & 24 Vict. c. 136, s. 13. 00 5 & 6 Will. 4, c. 69, s. 5. {y) 22 Vict. c. 12, s. 5. 880 Chap. XXII. — Recovery of the Premises by the Landlord. Ch.XXII. 8.4. Rccorcnj of I'rem iscs before Justices {Parish Property) . 59 Geo. 3, c. 12, s. 24. Summons before Justices of permitted Occupier refusing to Quit P.arish Pioperty within One Month after Notice in AVritins. Warrant for Possession. 59 Geo. 3, c. 12, s. 25. Summons of Termor Holding over. Jurisdiction not ousted by claim of Title. (b) Recovery of Parish Property. The Poor Relief Act, 1819 {z), 59 Geo. 3, c. 12, s. 24, enacts that if any person, who shall have been permitted to occupy any dwelling belonging to or provided by or at the charge of any parish for the habitation of the poor thereof, or who shall have unlawfully intruded himself into any such dwelling, or in an}' house, tenement, or here- ditament belonging to such parish, shall not deliver up the possession thereof to the churchwardens and overseers of the poor of any such parish, within one month after demand in writing, delivered to him, or in his absence affixed on some notorious part of the premises, any two justices of the peace, upon complaint to them b}' one or more of the churchwardens and overseers, nmy summon him to appear before them, at a time and place to be appointed by them, and cause the summons to be delivered to him, or in his absence to be affixed on the premises, seven days at the least before the time apjDointed for hearing the complaint ; and such justices are required, upon appear- ance of the defendant, or jnoof that such summons has been delivered or affixed as is thereby directed, to hear the complaint, and if they shall find it to be true, then by warrant to cause possession of the premises to be delivered to the churchwardens and overseers or some of them. The recover}' of parish land let and held over is provided for by sect. 25 of the same act as follows : — If any per.son, to whom any land appropriated, purchased, or taken under the authority of this act, for the employment of the poor of any parish, or to whom any otlier lands belonging to such parish, or to the churchwardens and overseers thereof, or to cither of them, shall have been let for his or her own occupation, sliall refuse to quit and deliver up the possession thereof to the churchwardens and overseers of the poor of such pai'ish, at the expiration of the term for which the same shall have been demised or let to him or her; or if any person or persons shall imlawfully enter upon, or take or hold possession of any such land, or any other land or hereditaments belonging to such parish, or to the churchwardens or overseers, or to either of them ; it sliall be lawful for such churchwardens and overseers of the poor, or any of them, after such notice and demand of possession as is by this act directed in the case of parish houses, to exliibit a complaint against the person or persons in possession of such land before two of his Majesty's justices of the peace, who are hereby authorized and required to proceed thereon, and to hear and determine the matter thereof, and if they shall find and adjudge the same to be true, to cause possession of sucli land to be delivered to the churchwardens and overseers of the poor, or some of them, in such and the like course and manner as are by this act directed with regard to parish houses. Upon an information and complaint, under sect. 24, by parish officers, the justices ai-e not precluded from inquiring into the matter and determining thereon, by reason of the defendant claiming title {z) Sec this Act, Chitty's Statutes, tit. "Poor." Sect. 4. — Proceedings before Justices. 881 to the property on behalf of himself or the person by whom he was Cii.XXII. s.4. put into possession (a) . liecovenj of . ... I remises If a person " permitted to occupy " within the terms of the statute before Justices desert the premises, the parish officers may resume possession, as at PromrM connnon law, without anv notice to quit, or resort to in'ocedure under ~; * 111- . „ Character of the statute (/;) ; but where a person has been let into possession of a Ociupation. house belonging to the parish, by the parish officers, as an ordinary tenant, they cannot proceed against him to recover possession under the 24th section of this statute (c). Waste land of a parish, into the occupation of which a person has Waste Land. been let under licence of the majority of the parish freeholders, under an agreement to pay rent to churchwardens and overseers in aid of the poor rates, is parish land, which they may recover, under sect. 24 of the above act, after notice and demand of possession ; and indeed it appears possible that they might in such a case expel the tenant without resorting to the statutory procedure ((/). (c) Recovery of Cottage Allotments {e). By the Allotments Act, 1832, 2 & ?, Will. 4, c. 42, power is given ^ & 3 WiW. i, in parishes inclosed under acts of parliament, in which allotments have been made for the benefit of the poor, for the trustees of the allotments and parish officers in vestry assembled, to let them in small portions to industrious cottagers. By sect. 5, "if the rent is in arrear for four weeks, or, if, at the Notice to Quit •' ' ... ... Avhere Rent m end of any year of occupation, it is the opinion of the vestry that the Arrear for land has not been duly cultivated, the churchwardens or overseers, or ^^ '^' any or either of them, with the consent of the vestiy, may serve a notice to quit upon the occupier, who shall deliver up possession within one week after notice." Kecoveiy of possession is provided for by sect. 6 as follows : — Summons of Tenant in If any person to whom such portion of land as aforesaid shall have been default, and let, for his or her own occupation, shall refuse to quit and deliver up pos- i'" .\\.!VL^ |)„ session thereof when thereto required, according to the terms of this act, Warrant of or if any other person or persons shall unlawfully enter upon, or take or Justices, hold possession of any such land, it shall be lawful for the churchwardens and overseers of the poor, or any or either of them, to exhibit a complaint against the person so in possession of such land before two of his Majesty's justices of the peace, who are hereby authorized and required to issue a summons, under tiieir hands and seals, to the person against whom such complaint shall be made, to appear before them at a time and place appointed therein : and such justices are hereby required and empowered, («) Ex imrU Vaughan, L. R., 2 Q. B. i^d) See, per P)vles, J.. Apphtoii v. 114 ; 36 L. J., M. C. 17 ; 7 B. & S. 902. Morrey, 2 F. & F. "l67. {b) Wildborv.Puiinforth,8?,.kC.i. {e) See Cliitty's Statutes, tit. "Allot- ; (c) Eeg. V. Middlesex J J., 7 Dowl. 767 ; ments." Reg. V. Bolton, 1 Q. B. 66. L.T. 56 882 Chap. XXII.^ — Eecoveey of the Premises by the Landlord. Ch.XXII.s.4. Recovery of JPremi-ses hefore Justices {Cottage Allotments). 8 & 9 Vict. c. 118. Allotment Gardens under In clo- sure Acts. Notice to Tenant where Kent in Arrear. Recovery of Allotment Garden. upon the appearance of the defendant before them, or upon proof on oath that such summons has been duly served upon him, or left at his usual place of residence, or if there should have been any difficulty in finding such usual place of residence, then upon proof on oath of such difficulty, and that such summons has been affixed on the door of the parish church of the said parish in which such land is situated, and in any extra-parochial place on some public building or other conspicuous place therein, to proceed to hear and determine the matter of such complaint ; and if they shall find and adjiidge the same to be true, then, by warrant under their hands and seals, to cause possession of the land in question to be delivered to the churchwardens and overseers of the poor, or to some of them. By sect. 11, the powers and provisions of the act, so far as applicable, may be applied where inclosures are made under the Allotments Act, 1832, 1 & 2 Will. 4, c. 42, by which the powers of the Poor Eelief Act, 1819, 59 Geo. 3, c. 12, for taking land for the benefit of the poor are extended, or where land shall in any other manner be found ajipropriated for the general benefit of the poor of any parish. By the Inclosure Act, 1845 (8 »t 9 Vict. c. 118), power is given to the inclosure commissioners to appropriate a portion of lands inclosed for the purpose of letting it in gardens, not exceeding one quarter of an acre each, to the poor : and by sect. 110 : — If the rent reserved upon the letting of any garden by the allotment wardens shall at any time be in arrear for forty days, or if at any time during the tenanc}', being not less than three calendar months after the commencement thereof, it shall appear to the allotment wardens that the occupier of such garden shall not have duly observed the terms and conditions of liis tenancy, or shall have gone to reside more than one mile out of tlic parisl), then and in eveiy such case the allotment wardens shall serve a notice u|)on such occupier, or, in case he shall have gone to reside out of the parish, shall affix the same to the door of the cluu-ch of the parisii, determining the tenancy at the expiration of one month after such notice shall have been so served or affixed ; and thereupon such tenancy shall be determined accordingly : provided always, that in every such case the allotment wardens or their incoming tenant shall pay to the occupier, whose tenancy shall have been so determined, a fair recompense in money for any crops (not being crops prohibited by the terms of such tenancy) which may be growing on such garden at the time of such determination, and for any manin-e left on such garden, or any benefit accruing from the manuring of such garden to the wardens or their incoming tenant; and tlie justices, to whom application may be made for a warrant to give possession of such garden, shall settle the amount of such recompense, in case the ])arties diffi>r about the same, and stay the execution of sucli warrant until the same shall have been paid or tendered, or (in case such occupier be absent) until the payment thereof shall have been secured to the satisfaction of such justices. By sect. Ill, in case, upon the determination of an}^ such tenancy, the occupier of any such garden shall not deliver up possession thej'eof, or if any other person shall unlawfully hold possession of Sect. 4. — Proceedings before Justices. 883 any such garden, or of an}' part of such allotment, the allotment Ch.XXII.s.4. wardens may recover possession according to the mode prescribed Recovery of hx the Small Tenements Recovery Act, 1838, 1 & 2 Vict. c. 74 before^ Justices (ante, p. 877), in the same manner as if the said wardens were AiMments). landlords, and the overholding occupier or other person a tenant refusing to deliver up possession within the meaning of that act. Both the Allotments Act, 1832, and the Inclosure Act, 1845, were Poor amended by the Poor Allotments Management Act, 1873 (36 & 37 Managemeut Vict. c. 19), which provides that the allotment trustees and the Act, 1873. vestry may appoint a committee for the purpose of exercising their powers ; and sect. 110 of the Inclosure Act, 1845, is incorporated with the Allotments Extension Act, 1882, 44 .V- 45 Vict. c. 80, by sect. 12 of that Act (e). (d) Recovery of Deserted Pyemises. The recovery of deserted premises, where a half-year's rent is in arrear and tbere is no sufficient distress, is provided for by s. 16 of the Distress for Pent Act, 1737, 11 Geo. 2, c. 19, as amended by the Deserted Tenements Act, 1817, 57 Geo. 3, c. 52, as follows : — Whereas landlords are often great sufferers by tenants running away n Geo. 2, in arrear, and not only suffering the demised premises to Ije unculti- <^- 19, s- 16. vated without any distress thereon, whereby their landlords or lessors Where Half- might be satisfied for the rent-arrear, but also refusing to deliver up the in Arrear and possession of the demised premises, whereby landlords are put to the no sufficient expense and delay of recovering in ejectment : Be it enacted, that if Diwtress, any tenant holding any lands, tenements, or hereditaments, at a rack- enter Deserted rent, or, where the rent reserved shall be full three fourths of the yearly Premises. value of the demised premises, who shall be in arrear for one year's rent [extended by Deserted Tenements Act, 1817, to one half-years rent], shall desert the demised premises, and leave the same uncultivated or unoccujyied (/' ), so as no sufficient distress can be had to coimtervad tlie arrears of rent, it shall and may be lawful to and for two or more justices of the peace of the county, riding, division, or place (having no interest in the demised premises), at the request of the lessor or landlord, lessors or landlords, or his, her, or their bailiff' or receiver, to go upon and view the same, and to affix or cuuse to be affixed on the most notorious part of the premises, notice in writing what day (at the distance of 14 days at least (//)) they will return to take a second view thereof ; and if upon Second Yien-. such second view the tenant, or some person on his or her behalf, shall not apj)ear and pay the rent in arrear, or there shall not be sutticient distress upon the premises, then the said justices may put the landlord or landlords, lessor or lessors, into the possession of the said demised premises ; and the lease thereof to such tenant, as to any demise therein contained only, shall from thenceforward become void. (f) See also Allotments Act. 1887, (/") See £^ar parte PiZ^oji, 1 B. & A. 369 ; .')0 & 51 Vict. c. 48, s. 8 (2), and the 11 R. R. 342 ; and 886 (?•), post. wliole series of Allotment Acts, in (.(/) I.e., fourteen clear days ; Creak v. Ohitty's Statutes, tit. "Allotments." The Justices of Brighton, 1 F. & F. 110. 56—2 884 Chap. XXII. — Eecoveey of the Premises by the Landlord. Ch.XXII. S.4. Recovery iefore Justices {Deserted Fremises), Complaint need not be on Oath. Sect. 17. Appeal to Judges of Assize, &c. 57 Geo. 3, c. 52. Right of Re-entiy unnecessary. 3 & 4 Vict, c. 84, s. 13. Within the Metiopolitan Police District. This statute, which gives a summaiy remed.y to landlords, does not require the request or complaint to be made upon oatli : there- fore, where in trespass against two magistrates for turning a tenant out of possession under this act, a record of the proceedings, drawn up conformably to the statute, was given in evidence, it was held, that it was a complete defence to the action, though they did not appear to have acted on the oath of the landlord (Z/). In this and all other like cases the justices ought to make a record of the whole proceedings (/). Sect. 17 provides, that such proceedings of the said justices shall be examinable in a summaiy way by the next justice or justices of assize (Ji) of the respective counties in which such lands or premises lie ; and if they lie in the city of London or county of Middlesex, by the judges of the Courts of Queen's Bench or Com- mon Pleas, who are thereby empowered to oi'der restitution to he made to any such dispossessed tenant, together with his costs, to be paid by the landlord ; and, in case they affirm the act of the justices, to award costs not exceeding five pounds for the frivolous appeal. This section will still apply, but with such alterations as are required by the altered state of the courts, and the appeal in London or Middlesex will therefore lie to any judge of the Queen's Bench Division of the High Court of Justice (/). It having been decided that the Distress for Kent Act, 1737, 11 Geo. 2, c. 19, s. 16, did not appl}' to cases where the landlord had not, by the terms of the lease, a right of entry (/;(), the Deserted Tenements Act, 1817, 57 Geo. 3, c. 52, extended the powers thereby given to the case of tenants " who shall hold such lands and tene- ments or hereditaments under any demise or agreement either written or verbal, and although no right or power of re-entry be reserved or given to the landlord in case of non-payment of rent." Since this enactment a right of re-entry is clearly unnecessary (n). Where the premises are within the metropolitan police district, the Metropolitan Police Act, 3 & 4 Vict. c. 84, enacts (sect. 13), that, after the passing of that act, " none of the police magistrates within the metropolitan police district shall be required to go upon an}^ deserted lands, tenements or hereditaments, for the purpose of viewing the same, or affixing any notices thereon, or of putting the landlord or landlords, lessor or lessors, into the ])OSsession thereof," (h) Fasten v. C'areic, 3 B. & C. 649. (i) Ashcroft v. Bourne, 3 B. & Adol. 684 ; Haylock v. Sparkc, 1 E. & B. 471 ; Creak V. The Justices of Brighton, 1 F. & F. 110 ; Cole Ejec. 678, 844. [k) This appeal must be made to the judge or judges going the circuit, in their individual capacity ; not as justices of assize ; Recf. v. Sewell, 8 Q. B. 161. (1) Bv virtue of an Order in Council of letli December, 1880, under sect. 32 of the Judicature Act, 1S73. {vi) Easter T. 41 Geo. 3, MS.: Ex parte Pilton, 1 li. k A. 369 (n) Edwards v. Hodges, 15 C. B. 477. Sect. 4. — Proceedings before Justices (Deserted Premises). 885 under the provisions of 11 Geo. '2, c. 19, and 57 Geo. 3, c. o'i, "" but Ch.XXII. s.4. that in every case ^vithin the metropolitan police district in which Recovery - . , • 1 i> 1 • • 1 • T liefore Justices by the said acts, or either ot them, two justices are authorized to {Deserted put the landlord or lessor into the possession of such deserted Premises). premises, it shall be lawful for one of the police magistrates, upon the request of the lessor or landlord, or his or her bailiff or receiver, made in open court, and upon proof given to the satisfaction of such magistrate of the arrear of rent and desertion of the premises by the tenant as aforesaid, to issue his warrant, directed to one of "Wammt to the constables of the metropolitan police force, requiring him to go " ' upon and view the premises, and to affix thereon the like notices as under the said acts, or either of them, are required to be affixed by two justices of the peace; and upon the return of the warrant, and upon proof being given to the satisfaction of the magistrate before whom the warrant shall be returned that it has been duly executed, and that neither the tenant, nor any person on his or her behalf, has appeared and paid . the rent in arrear, and that there is not sufficient distress upon the premises, it shall be lawful for such magistrate to issue his warrant to a constable of the metropolitan police force, requiring him to put the landlord or lessor into the possession of the premises ; and eveiy constable to whom any such warrant shall be directed shall duly execute and return the same subject to the provisions contained" in 2 & 3 Yict. c. 47, " as to the execution of warrants directed to constables of the metropolitan police force ; and upon the execution of such second warrant, the lease of the premises to such tenant, as to an}' demise therein contained only, shall thenceforth be void." By the Summary Jurisdiction Act, 1848, 11 \- 1*2 Yict. c. 43, s. 34, n & 12 Vict, "it shall be lawful for the Lord Mayor of the city of London, or ' for any alderman of the said city, for the time being", sitting at the Mansion House or Guildhall Justice Ptooms in the said city, to do alone an}- act, at either of the said justice rooms, which by any law now in force, or by any law not containing an express enactment to the contrary hereafter to be made, is or shall be directed to be done by one or more justice." This applies to proceedings in the city of City of London under the before-mentioned acts (o). But although such mayor or alderman sitting as aforesaid has all the power of two justices, yet he has not the power of a metropolitan police magistrate acting under Metropolitan Police Act, 3 i*c 4 Vict. c. 84, s. 13 (o), and therefore he cannot send a constable to view the premises, and to affix notices, i^c, but he must proceed in like manner as two or more justices. {o) Edivurih V. Hodijes, 15 C. B. 477. 886 Chap. XXII. — Eecoyery of the Pre^iises by the Landlord. Ch. XXII. 8.4. Recover)/ before Justices [Deserted Premises). Stipendiary Magistrate.s. Jurisdiction of Justices. Determina- tion of question, whether Premises deserted or not. A stipendiaiT magistrate in any cit}-, town, liberty, borough or place (other than the city of London, or the metropolitan police district) should proceed in like manner as two or more justices (p ). The foregoing statutes do not contain any exception with respect to leases made in consideration of an^^ fine or premium. Therefore, any such fine or premium is immaterial except so far as it tends to show that the rent reserved is not a rack-rent, or not full three-fourths of the yearly value of the demised premises {q). The statutes api)ly to all demises, whether written or oral, however long ma}' be the term and however large may be the amount of rent reserved (r). It is no longer of any consequence that the lease or agreement contains no condition or proviso for re-entry for non-payment of rent (s) ; and therefore this mode of proceeding may sometimes be adopted where no action for recovery of land could be supported, either in the High Court or in the County Court. But the following circumstances must concur, viz. : — 1. The rent reserved must be a rack-rent, or full three-fourths of the yearly value of the demised premises. '2. One- half a year's rent at the least must be in arrear. 3. The premises must have been deserted and left uncultivated or unoccupied, so as no sufficient distress can be had to countervail the arrears of rent. No information or complaint on oath need be made before the justices ; a mere request is sufficient {{). But upon an application to a metropolitan police magistrate, proof must be made to his satisfaction of the rent in arrear and desertion of the premises by the tenant [n). The justices are uj)on their own view to determine whether the premises are deserted or not {x) ; also, whether they have been left uncultivated or unoccupied so as no sufficient distress can be had to countervail the arrears of rent : also, whether the rent reserved is a rack-rent or full three-fourths of the yearly value of the demised premises. Upon these points they may, if they think fit, receive the evidence or statement of any broker, surveyor, or other competent person, or of the landlord or his bailift' or receiver ; but the}' ought to form their own judgment or conclusion {ij). It has been decided, where a tenant ceased to reside on the premises for several months, and left them without any furniture or sufficient other property to answer the arrears of rent, that the landlord might properly j)roceed under the statute to recover the possession, although he knew where the tenant then was, and although the justices found a servant of the tenant on {'p) 21 &2'2Yict. c. 73; Chit. Stat, tit. (0 Bcifiten v. Carcw, 3 B. & C. 649. " Justices:' See also Be Perham, 5 H. k X. 30 ; 11 & 12 [q) See Cole Ejec. 676. Vict. c. 43, s. 10. {r) £.c parte 'Pilton, 1 B. & A. 369 ; («) 3 & 4 Vict. c. 84, s. 13 ; ante, 884. 11 R. R. 342. (x) Bastcii v. Careiu, supra. (s) 57 Geo. 3, c. 52 ; ante, 884 : Edirards [y] See Cole Ejec. 677. V. Hodcies, 15 C. 15. 477. I Sect. 4. — Proceedings before Justices (Deserted Premises). 887 Recovery before Jmtices {Deserted JPremiscs) . the premises wlien the.y first went to view the same (z). On the other Ch.XXII. s.l hand, in a case where the wife and children of the tenant remained on the j)remises, but there was no furniture in the house, except three or four chairs, which were stated b}' the wife to belong to a neighbour : held, b}' the justices of assize on appeal (reversing the decision of the justices), that the premises had not heen deserted within the meaning of the act (a). Where magistrates had given possession of a dwelling- house as f/t'.seyfc^? and unoccupied, and the judges of assize, on appeal, made an order for restitution with costs, and the tenant brought an action of trespass for the eviction against the magistrates, the constable, and the landlord : it was held, that the record of the pro- ceedings before the magistrate was an answer to the action on behalf of all the defendants (h). The proper remedy is to appeal against the decision of the justices pursuant to the Distress for Pent Act, 1737, 11 Geo. 2, c. 19, s. 17 (ej. The order of the judges of assize on appeal should be directed to OnUr ou the justices from whom the appeal comes, as the court have refused a mandamus to compel the justices of the peace to cause restitu- tion to be made, in conformity with an order of the justices of assize on appeal, where the order was not directed to any one {d). Formerly the court would not compel justices to act, who doubted their jurisdiction, though incorrectly (e). If the magistrates have a record of their proceedings under this act drawn up, it will be an answer to any action of trespass brought against them or the landlord or constable who took possession, notwithstanding there ma}' have been a successful appeal against the order (/). iz) Ex- jKirfx Pilton, 1 B. & A. 369. See also I'aylcrsun v. Peters, 7 A. & E. no ; decided under 8 Anne, c. 14, ss. 6, 7. [a] Ashcroft v. Bourne, 3 B. & Adol. 684. (6) Ashcroft v. Bourne, supra ; Bastcn V. Carew, 3 B. & C. 649 ; 3 L. J., Iv. B. Ill ; 5 D. & K. 558 ; 27 R. R. 453. (c) Ante, 884 ; Recj. v. Seivell, 8 Q. B. 161. {(l) Reg. V. Traill, 12 A. k E. 761. [c) Ex parte Fulder, 8 DoavI. 535 ; Ex parte Jlllliani Davy, 2 Dowl., N. S. 24. But now see Justices Brotection Act, 1848, 1] & 12 Vict. c. 44, s. 5 ; Rcej. v. Coftuu; 15 Q. B. 574, Coleridge, J. : Rc>j. v. Ingham, 17 Q. B. 884. (/) See Ashcroft v. Bourne, supra : Reg. V. SeiccU, supra; per Abbott, C.J., in Bastcn v. Carcic, su])ra. ( 888 ) CHAPTER XXIII. CRIMINAL LAW AFFECTINO LANDLORD OR TENANT. Sect. page 1. Letting Infected House or Lodgings 888 2. Ceasing to occiniy Lifected House witliout having it Disinfected, &c 889 Sect. page 3. Letting House as a Brothel 889 4. Larceny by Tenants or Lodgers ... 890 5. Lijuries to Buildings by Tenants... 890 6. Forcible Entry and Detainer 891 Public Health Act, 187.5. Penalty for letting House in which in- fected Persons have been Lodging. Lni. Penalty for making False Statements. London. Sect. 1. — Letting Infected Houses or Lodgings. The 128tli and 129th sections of the Public Health Act, 1875 (38 & 39 Viet. c. 55), impose penalties on persons letting houses or lodgings or rooms in an inn in which persons have been suli'ering from "any dangerous infectious disorder," and on persons making false answers to inquiries by intending tenants, as follows : — 128. Any person who knowingly lets for hire any house, room or part of a house in which any person has been suffering from any dangerous infectious disorder, without having such house, room, or part of a house, and all articles therein liable to retain infection, disinfected to the satis- faction of a legally-qualified medical practitioner, as testified by a certificate signed by him, such person shall be liable to a penalty not exceeding twenty pounds. For the purpose of this section the keeper of an inn shall be deemed to let for hire part of a house to any person admitted as a giiest into such inn. 129. Any person letting for hire or showing for the purpose of letting for hire any house or part of a house, who, on being questioned by any person negotiating for the hire of such house or part of a house as to the fact of there being, or within six weeks previously having been therein any person suffering from any dangerous infectious disorder, knowingly makes a false answer to such question, shall be liable, at the discretion of the court, to a penalty not exceeding twenty pounds, or to imprisonment, with or witho^it hard labour, for a jjcriod not exceeding one month. The Public Health (London) Act, 1891, 54 & 55 Vict. c. 70 (ss. 63, 64), contains provisions, veiy similar to the above, which apply (ss. 132, 141) only in the administrative county of London, and are supplemented (s. 55, sub-s. 8, and s. 58) b}^ definitions of "infectious disease" similar to that of the Act of 1890 mentioned in Sect. 2, infra. Sect. 2. — Ceasing to Occupy Infected House, etc. 889 Sect. 2. — Ceasing to occupy Infected House icitJiout having it Cu.XXIII.s.2. disinfected, djC. Ceasing to Occupy In- Bv s. 7 of the Infectious Diseases Prevention Act, 1890, 53 & 54 fected Rouse, Vict. c. 34 — an adoptive act which may be adopted wholly or in part '- by an urban or rural sanitary authority, but which does not come into infectious force unless and except so far as adopted — it is enacted that : — Diseases Prevention Every person who shall cease to occupy any house, room, or part of a Act. house in which any person has within six weeks previously been suffering Oblio-ation to from any infectious disease without having svich hoiise, room, or part of a Disinfect, and house, and all articles therein liable to retain infection, disinfected to the *.° ', ^*!; *^''° t'lCL Ot satisfaction of a registered medical practitioner, as testified by a certificate infection. signed by him, or without first giving to the owner of such house, room, or part of a house, notice of the previous existence of such disease, and eveiy person ceasing to occupy any house, room, or part of a house, and who on being cpiestioned by the owner thereof, or by any person negotiating for the hire of such house, room, or part of a house as to the fact of there having within six weeks joreviously been therein any person suffering from any PL-nnlty. infectious disease knowingly makes a false answer to such question shall be liable to a penalty not exceeding ten pounds. The term "infectious disease" in the above act has by s. 2 the Meaning of same meaning as in the Infectious Diseases Act, 1889, 52 & 53 Vict, i^i^ease in Act c. 72, i.e. by s. 6 of the latter act, it " means small pox, cholera, diph- "*" i^s^O. theria, membranous croup, erysiiJelas, the disease known as scarlatina or scarlet fever, and the fevers known by any of the following names, typhus, typhoid, enteric, relaj^sing, continued, or puerperal," and includes as respects any particular district, an}' other infectious disease to which the act has been extended by the authorities. The Act of 1890 has been very widely adopted. The Public Health (London) Act, 1891, 54 .1- 55 Vict. c. 76 London, (s. 65), contains provisions similar to the above, applicable to dangerous infectious diseases. Sect. 3. — Letting House as a Brotliel. The Criminal Law Amendment Act, 1885 (48 & 49 Vict. c. 69), Ciiminal Law . , f ^ Amendment contanis very strnigent provisions against the user of a house as a Act, 1885. brothel. By sect. 13, any person " who being the lessor or landlord ^M^® "^" ^"V ;' 7 ./ i. o pnsonnient of any premises, or the agent of such lessor or landlord, lets the same for letting or any j)art thereof with the knowledge that such premises or some i3°o[ifef'' part thereof are or is to be used as a brothel, or is wilfully a party to the continued use of such premises or any part thereof as a brothel," is liable on sumnuuy conviction to a fine not exceeding twent}' pounds, or to imprisonment for not more than three months with or without bard labour. The words "is wilfully a party to the continued use," kc, seem to render any landlord liable under the section who. 890 Chap. XXIII, — Crimes of Landlord or Tenant. Ch.XXIII.8.3. having the knowledge therein described, and having the power to give notice to quit, should abstain from giving such notice immediately on becoming possessed with reasonable certainty of such knowledge. A solicitor, convicted as a landlord under this enactment, may be struck otf the rolls in respect of the conviction, although the ofience has no relation to his character as solicitor {z). Letting House as a Brothel. Solicitor. 24 & 25 Yict. c. 96, s. 74. Stealing Chattels or Fixtirres. If above i)l. Value. Form of liidictment. Lodging- house Keeper not respon- sible for Good.s of Lodger Stolen. 24 & 25 Vict, c. 97, s. 13. Pulling down or demolish- ing all or Part of any Building or Fi.xture. Sect, 4. — Larceny hy TenanU or Lodgers. By the Larceny Act, 1861, 24 & 25 Vict, c, 96, s. 74, as printed in the 2nd edition of the Statutes llevised :— Whosoever shall steal any chattel or fixture let to be used by him or her in or with any house or lodging, whetlier the contract shall have been entered into by him or her or by her husband, or by any person on behalf of him or her or her husband, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the com-t, to be imprisoned for any term not exceeding two years, with or without hard labour .... and, if a male under the age of sixteen years, with or without whipping; and in case the ■value of such chattel or fixture shall exceed the sum of hi., shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding seven years .... or to be im[)risoned .... and, if a male u.nderthe age of sixteen years, wither without whipping; and in every ease of stealing any chattel in this section mentioned it shall be lawful to prefer an indictment in the common form as for larceny ; and in every case of stealing any fixture in this section mentioned, to prefer an indictment in the same form as if the offender were not a tenant or lodger, and in either case to lay the property in the owner or person letting to hire. The law implies no obligation upon a lodging-house keeper to take care of the goods of his lodger. Where property of lodger about to quit had been stolen hy a stranger in his absence permitted by the occupier to enter the rooms to view them : it was held that the lodging-house keeper was not responsible for the loss {a). 13:— Sect, 5. — Lijuries to Buildings hy Tenants. By the Malicious Damage Act, 1861, 24 &25 Vict, c, 97, s. Whosoever, being possessed of any dwelling house or other building, or part of any dwelling-house or other building, held for any term of years, or other less term, or at will, or held over after the determination of any tenancy, shall iinlawfully and maliciously pull down or demolish, or begin to pull down or demolish, the same or any part thereof, or shall unlawfully and maliciously pull down or sever from the freehold any fixture being fixed in or to such dwelling-house or building, or part of such dwelling-house or building, shall be guilty of a misdemeanor (6). (:;) IFcarr, In re, [1892] 2 Q. P>. 439 ; 62 L. J., Q. B. 596 ; 69 L. T. 522— C. A. (a) Holder v. SoiMi/, 8 C. B., N. S. 254 : 29 L. J., C. P. 246. {b) No punishment is specially provided by the Malicious Damage Act, 1861, or any other act, for this offence, which is therefore punislialjle on conviction, on indictment, as a misdemeanour at com- mon law, i.e., by fine or imprisonnieut (without hard labour) or both, and to be put luider recognizances at the discretion! of the Court. See Steph. Dig. of Grim. Law, arts. 22, 383, citing E. v. Dunn,. 12 Q. B. 1041. Sect. 6. — Forcible Entry and Detainer. 891 Sect. 6. — ForciJiIc Entry coid Detainer (h). The oftence of forcible entiy and detainer is defined to be the violent taking or keeping possession of land or tenements, with menaces, force and arms, and without the authority of the law (c). This was permitted at common law under certain circumstances, where a person had been disseised or put out of possession (d) ; but being found very prejudicial to the public peace, it was thought necessary, by various statutes (e), to restrain all persons whatever from the use of such violent methods to do themselves justice. The indictment for forcible entry into leasehold premises is founded on 21 Jac. 1, c. 15 ; for a forcible detainer, on 8 Hen. 6, c. 9, or 21 Jac. 1, c. 15. An indictment lies also at common law for a forcible entry, although it is generally brought on the acts of parliament (/'). No expulsion or detainer in this case need be proved, because no restitution can be awarded {(j). The tenement in which the force was made must be described with convenient certainty ; and the indictment must set forth, that the defendant actually entered, and ousted the party grieved, and continued his possession at the time of finding the indictment, otherwise he cannot have restitution, because it does not appear that he needs it {h). If, however, a man's wife, children or servants continue in the house, or upon the land, he is not ousted of his possession ; but his cattle being upon the ground do not preserve his possession (/). A repugnancy in setting forth the offence in an indictment upon any of the statutes is an incurable fault (/.) : an indictment for forcible entry was quashed, therefore, for not setting forth that the party was seised or disseised : or what estate he had in the tenement ; for if he had only a term for years, then the entr}' must be laid into the freehold of A., in the possession of B. il). Upon the finding by the grand jury of the indictment, the judge of assize has a discretion to refuse to award restitution {m). By 8 Hen. 6, c. 9, for a more speedy remedy, the party grieved ma}' complain to any one justice, or to a mayor, sheriff", or bailiff" CH.XXIII..S.6. Forcible Entry and Detainer. Nature and Punishment of tlic OH'enee by Indictment. Punishment of the OtTence bj' Justices. {h) SeeBeddall v. Maitlawl, 17 Ch. I). 174 ; ante, Chap. XX., Sect. 1. (c) 4 P>lac. Com. 148. {d) 1 Hawk. P. C. c. 64, s. 1 ; 1 Kuss. on Crimes, 404 (5th ed. ). The common law of this subject seems to be very obscure. See Russell at p. 404, citing II. V. Blake, 3 Burr. 1731 ; R. v. Wihon, 8 T. K. 361 ; 4 1!. E,. 694, and expressing the opinion "that it is the more usual and effectual way to proceed upon the statutes, which give restitution and damages to the i>arty grieved." (c) 5 Ric. 2, St. 1,0. 8 ; 15 Eic. 2, c. 2 : 8 Hen. 6, c. 9 ; 31 Eliz. c. 11 ; 21 Jac. 1, c. 15; Chit. Stat. tit. "Criminal Law" (Otlences against Peace, kc.) : 1 Russ. on Crimes, Ch. XXA'II.. p. 404 (5th ed.) ; 2 Burn's J. 592—595 (30th ed.). ( /■) Rcxx. Baker, 3 Burr. 1731. {(j) Bex v. Wilson, 8 T. R. 357; 4 R. R. 694. (/O Hawk. P. C. c. 64, ss. 37, 41. (i) Dalt. c. 132. (/.) 1 Hawk. P. C. c. 64, s. 39. (0 3 Salk. 169 ; 3 Bun. 1732 : Beif. v, Boicser, 8 Dowl. 128. [m) Beg. v. Harland, 8 A. .S: E. 826 ; 2 Moo. .>v: R. 141. 892 Chap. XXIIL- — Crimes of Landlord or Tenant. Ch.XXIII.s.6. within tlieir liberties. Concerning" which power of the justice, it is ^mid^BcM^er ^'^^'^^^^ ^^ follows :— After complaint made to such justice, by the party grieved, of a forcible entry made into lands, tenements or other 130ssessions, or forcibly holding thereof, he shall, within a convenient time, at the costs of the party grieved (without any examining or standing upon the right or title of either party), take sufficient j)ower of the county, and go to the place Avhere the force is made(H). All people of the county, as well the sheriff as others, shall be attendant on the justices, to arrest the offenders, on pain of imprison- ment and fine to the Queen ; and if the doors be shut, and they within the house shall deny the justice to enter, it seems he may break open the house to remove the force (o) : if, after the entry made, the justice " shall find such force, he shall cause the oftenders to be arrested : " and the offenders being arrested, they shall be put in the next gaol, there to abide convict- b}^ the record of the same justice, until they have made fine and ransom to the Queen {'p). The justice ought to " make a record of such force b}' him viewed:" which record shall be sufficient conviction of the offenders, and the parties shall not be alh)wed to traverse it. This record, being made out of the sessions, by a particular justice, may be kept by him ; or he may make it indented, and certify the one part into the Queen's Bench, or leave it with the clerk of the peace; and the other part he ma}' keep himself. For this view of the force by the jiistice, being a judge of record, makes his record thereof, in the judgment of the law, as strong and effectual as if the offenders had confessed the force before him ; and, as far as regards the restraining of traverse, }nore effectual than if the force had been found by a jury, upon the evidence of others. A conviction for a forcible detainer must show on the face of it an unlawful entry, as well as a forcible detainer ; a conviction on the view merely of the justices; without any evidence of an unlawful entry, is bad, even though information and complaint of an unlawful expulsion be stated ((/). An inquisition taken under the 8 Hen. 6, c. 9, should set forth the estate possessed by the party in the property (r). It is doubtful whether the holding over by a termor after the expiration of his term is constructively an unlawful entry (s). The court will not compel magistrates to hear a complaint and act summaril}' under the statutes (0- Restitution hy Although regularly the justices only who were present at the Bendr*^'^'"^ inquiry, and when the indictment was found, ought to award restitution ; yet if the record of the presentment or indictment be (71) Dak. e. 44 ; 1 Hawk. P. C. c. 66, 3 Id. 817. .s. 8. (>•) ilcq- V. Bowser, 8 Dowl. 128. (o) Dalt. c. 44. (s) Ilex v. Oahlcy, 4 B. & Adol. 307. i,p) 15 Ric. 2, c. 2. [t) Ex invrlc Davy, 2 Dowl., N. S. 24. (7) Hex V. Wihon, 1 A. & E. 627 ; I Sect. 6. — Forcible Entry and Detainer. 893 certified b}' the justice or justices into the Queen's Bench, or the Ch.XXTII.s.6. same presentment or indictment be removed or certified thither by Forcible Entry ■ ,^ • ,• /^.i, , 1 ■ n ■ ■ ««<^ Detainer. certiorari, the justices ot that court may award a writ of restitution to the sherift', to restore possession to the party expelled ; for the justices of the Queen's Bench have a supreme authority in all cases of the crown {u). Also where, upon removal of the proceedings into the Queen's Bench, the conviction shall be quashed, the coui't will order restitution to the part}^ injured. Where a conviction of forcible entry was quashed for the uncertainty of "messuage or tenement," but the restitution was opposed, on an affidavit that the party's title (which was by lease) was expired since the conviction ; the court said they had no discretionary power in this case, but were bound to award restitution on quashing the conviction (.r). If a forcible entry or detainer shall be made by three persons or Riot, more, it is also a riot, and may be proceeded against as such, if no inquiry has before been made of the force {y). In general, it seems clear, that to denominate the entiy forcible, it "What is ought to be accompanied with some circumstances of actual violence °^''^ ^ n j. or terror; and therefore that an entry, which has no other force than such as is imi^lied by the law in every tresjjass whatsoever, is not within these statutes (-?). With respect to violence, it seems to be agreed that an entry may be forcible, not onh' in respect of a violence actually done to the person of a man, — as by beating him if he refuse to relinquish his possession ; — but also in respect of any other kind of violence in the manner of the entry, — as by breaking open the doors of a house, whether any person be in it or not, especially if it be a dwelling-house ; and perhaps, also, by an act of outrage after the entry, — as by canning away the party's goods. It seems, how- ever, that an entry is not forcible, by the bare drawing up of a latch, or pulling back the bolt of the door, there being no appearance therein of being done by a strong hand or multitude of people : and it has been held, that an entry into a house through a window, or by opening a door with a key, is not forcible (a). With respect to the circumstances of terror, it is to be observed, that wherever a man, either by his behaviour or speech at the time of his entry, gives those who are in possession just cause to fear that he will do them some bodily hurt, if they will not give way to him, his entry is esteemed forcible. This is the case whether he cause such a terror, b}' carrying with him an unusual number of attendants : or by arming himself in such a manner as plainly intimates a design to (?() Dalt. c. 44. Moo. & K. 15.",; :> Bum's J. 597 (30tli (x) Rex Y. Jones, 1 Stra. 474. cd.). (V) Dalt. c. 44 ; 1 Russ. on Crimes, 380, ('0 1 Hawk. P. C. c. 64, s. 26 ; 1 Russ. 428 (4th ed.). on Crimes, 427 (4th ed.). (s) Mcx V. Smyth, 5 0. & P. 201; 1 894 Chap. XXIII. — Crimes of Landlord or Tenant, Ch. XXIII. S.6. kill, nuiim or beat those who shall conthuie in possession ; or Forcible Entry threatening; to do so, or usino' such expressions as plainlv imply and detainer. . " , .^ " . ' a purpose ol using force {h). It seems that it a person enter into another man's house or ground with apparent violence, though it be but to cut or take away liis corn, grass or other goods, or to fell or chop wood, or do any other like trespass, and though he do not put the party out of his possession, it is a forcible entry. If the entry were peaceable, and after such entry made, parties cut or take away any other man's corn, grass, wood or other goods, without apparent violence or force, such acts are not punishable as forcible entries (c); but if he enter peaceably, and then by force or violence cut or take away any corn, grass or wood, or forcibly (»r wrongfully carry away any other goods there being, it seems to be a forcible entry punishable by the statutes. But no entry is forcible from any threatening to spoil another's goods, or to destroy his cattle, or to do him any other such like damage, which is not personal (c). It is a forcible entry, if a man, having an estate in land, by a defeasible title, continue with force in the possession thereof, after a claim made by one wlio had a right of entry thereto {d). By whom a It is clear that a forcible entry may be committed by a single iorcible Eiitiy pgi-gon, as well as by twenty {c) ; but tliose who accompany a man, when he makes a forcible entry, shall be judged to enter with liini, whether they actually come upon the lands or not (/). He, how- ever, who barely agrees to a forcible entry made to his own use, without his knowledge or privity, shiill not be adjudged to make an entry within these statutes, because he noway concurred in or i:)romoted the force {(j). "Wliat is ;i The same circumstances of violence aiiti terror, whicli will make iMauer '^" entry forcible, will make a detainer forcible also: and a detainer may be forcible, whether the entry were forcil)le or not (//). {b) 1 Hawk. r. C. c. 64, s. •_>:. (/) 1.1. s 2-2. (c) Dalt. c. 126. (.'/) 1 Hawk. P. C. c. 64, s. 24. Id) 1 Hawk. P. C. e. 64, .s. 23. (A) U. -s. 30 ; 1 Ru.ss. on Crimes, 42/ (c) Kl s •-'M Mtli L'd.) ; 2 Burn's J. 598 (30th cI.). (895) APPENDIX STATUTES, PRECEDENTS AND FORMS. I 1^ I * B. A.— statutp:s and statutory rules For Index, see p. 897. PRECEDENTS OF LEASES, Arc. For Index, see p. 941. C._NOTICES TO QUIT AND OTHER NOTICES . For Index, see p. 980. D.— FORMS IN DISTRESS ... . . . . For Index, see p. 992. E.— FORMS OF PROCEEDINGS IN ACTIONS For Index, see p. 998. F._FORMS APPLICABLE TO AGRICULTURAL HOLDINGS ACT For Index, see p. 1016. I'AGE 897 941 980 992 998 1016 II ( 897 ) APPENDIX OF STATUTES, PRECEDENTS AND F0R3IS. APPENDIX A. STATUTES AND RULES (a). Sect. page 1. 2 W. & M. sess. 1, c. 5, Sale of Distress — Distress on Corn, &c. — Double Damat^es for Distress Avliere no Rent due 897 2. 56 Geo. 3, c. 50, Sale of Farming Stock Act, 1816, Sale of Hay, &c., by Trustees, &c. , of Bank- rupt Tenant 899 3. 8 & 9 Vict. c. 124, Leases Act, 1845, to facilitate the granting of certain Leases (with a concise form) 901 4. 14 & 15 Vict. c. 25, Landlord and Tenant Act, 1851, Emblements — Crops seized in Execution — Agricultural Tenants' Fixtures... 904 5. 15 & 16 A'ict. c. 76, Common Law Procedure Act, ' 1852, s. 209, Notice of "Writ of Ejectment by Tenant to Landlord 906 G. 32 k 33 Vict. c. 41, Poor Kate Assessment and Collection Act, 1869, Rating Occupiers fur Short Terms 906 Sec 10. 11. 12. 13. 14. 15. 16. T. PAGE 43 & 44 Viet. c. 47, Ground Game Act, 1880 909 Rules under Solicitors' Remunera- tion Order as to Charges for Leases, &c 911 46 & 47 Vict. c. 52 (Bankruptcy Act, 1883), ss. 42, 55, Distress for Rent ou Bankrupt Tenant — Disclaimer of Lease by Trustees in Bankruptcy — Bankruptcy Rule as to Leave to Disclaim 913 46 & 47 Vict. c. 61, Agricultural Holdings Act, 1883 915 County Court Order thereunder 928 51 & 52 Vict. c. 21, Law of Dis- tress Amendment Act, 1888 931 Distress for Rent Rules, 1888 933 Distress for Rent Fees 934 Distress for Rent Rules, 1895 ... 935 54 & 55 Vict. c. 39, Stamp Act, 1891 936 58 & 59 Vict. c. 24, Law of Dis- tress Amendment Act, 1895 940 Sect. 1.— 2 W. & M. Sess. 1, c. 5. [SeeChap. xt., Sect. 10 (h), An Ad for enabling the Sale of Goods distrained for Bent in case the R^nt he not P- ^O^d paid in a reasonable Time. Whereas the most ordinary and ready -way for recovery of arrears of rent is by distress, yet such, distresses not being to be sold, but only detained as pledges for enforcing the payment of such rent, the persons distraining have little benefit thereby : for the remedj-ing whereof be it enacted that where any goods or chattels shall be distrained for any rent reserved and due upon anj' demise, lease, or contract whatsoever, and the tenant or owner of the goods so distrained shall not within five days next after such distress taken, and notice thereof (with the cause of such taking) left at the chief mansion house or other most notorious place on the premises charged with the rent distrained for, (a) The statutes on the subject of laud- lord and tenant, up to 1894, are collected with notes in Chitty's Statutes (tits. ' ' Land- L.T. lord and Tenant," and " Landlord and Tenant (Ecclesia.stical, College and Hospital Leases)." 57 API'. A. s. 1. 2 W. & M. Sess. 1, c. 5. Where Goods, &c., distraiuetl, and no replevy in 5 Days ater Notice, Person distraining may cause Goods, (fee, to be sold, and proceeds applied in satis- faction of Rent and Charges of Distress. 898 Appendix A. (statutes). App. a. s. 1. 2 W. & M. Sess. 1, c. 5. Sheaves of Com or Corn loose or in the Straw, and Hay in the Barn or Stack, or njion tlie Land, may be secured in the Nature of a Distress (but not removed) ; and if not replevied in due Time may be apinaised and sold. Remedy for Pound Breach or Eescous of Goods, &e., distrained for Rent. Remedy for unlawful Distress and Sale of Goods, &c. replevy the same, witli sufficient security to be given to tlie slieriif according to law, that then in such case, after such distress and notice as aforesaid, and expiration of the said five days, the jierson distraining shall and may, with the sheriff or under-sheriff of the county, or with the constable of the hundred, parish, or place where such distress shall be taken (who are hereby required to be aiding and assisting therein) cause the goods and chattels so distrained to be appraised by two sworn appraisers (whom such sheriff, under-sheriff, or constable are hereby empowered to swear) to appraise the same truly according to the best of their understandings ; and after such appraisement shall and may lawfully sell the goods and chattels so distrained, for the best price can be gotten for the same, towards satisfaction of the rent for which the said goods and chattels shall be distrained, and of the charges of such distress, appraisement, and sale, leaving the overplus (if any) in the hands of the said sheriff, under-sheriff, or constable, for the owner's use (/>). 2. And whereas no sheaves or cocks of corn, loose or in the straw, or hay in any barn or granary, or on any hovel, stack, or rick, can by the law be distrained or otherwise seciu-ed for rent, Avhereby landlords are oftentimes cousened and deceived by their tenants, who sell their corn, grain, and hay to strangers, and remove the same from the premises chargeable with such rent, and thereby avoid the jiayment of the same : be it further enacted by the autliority afore- said, that for remedying the said practice and deceit it shall and may, from and after the said first day of June, be lawful to and for any person or persons having rent arrear and due ujDon any such demise, lease, or contract as afore- said, to seize and secui'e anj' sheaves or cocks of corn, or corn loose or in the straw, or hay Ij'ing or being in any barn or granary, or upon any hovel, stack, or rick, or otherwise upon any part of the land or pound charged with such rent, and to lock up or detain the same in the place where the same shall be found, for or in the nature of a distress, until the same shall be replevied, upon such security to bo given as aforesaid ; and in default of replevying the same as afore- said within the time aforesaid, to sell the same, after such appraisement thereof to be made ; so as nevertheless such corn, grain, or hay so distrained as afore- said be not removed by the person or persons distraining, to the damage of the owner thereof, out of the place where the same shall be found and seized, but be kept there as impoimded, until the same shall be replevied, or sold in default of rei)levying the same within the time aforesaid. 3. And be it further enacted by the aiithority aforesaid, that upon any pound breach or rcscous of goods or chattels distrained for rent, the person or persons gi'ieved thereby shall, in a special action upon the case for the wrong thereby sustained, recover his and their treble damages and costs of suit against the offender or offenders in any such rescous or poimd breach, any or either of them, or against the owners of the goods distrained, in case the same be after- wards found to have come to his use or possession. 4. Provided always, and be it further enacted, that in case any such distress and sale as aforesaid shall be m;ide, by virtue or coloiu' of this present act, for rent pretended to be arrear and due, where in truth no rent is aiTcar or due to the person or persons distraining, or to him or them in whose name or names or right such distress shall be taken as aforesaid ; that then the owner of such goods or chattels distrained and sold aforesaid, his executors or administrators, shall and may, by action of trespass, or upon the case, to be brought against the person or persons so distraining, any or either of thena, his or theii- executors or administrators, recover double of the value of the goods or chattels so distrained and sold, together with full costs of suit. (b) By the Parish Coustahlcs Act, 1872, 35 & 36 Vict. c. 92, s. 13, so much of this statute " as requires auy sheriff or under- sheriff or constable to be aidiu" at auv distress for rent, or to swear auy appraiser thereat, shall be repealed, and no oath shall be required from such appraiser." 56 Geo. 3, c. 50 (Sale of Farming Stock Act, 1816). 899 Sect. 2.-56 Geo. 3, c. 50. An Act to regulate the Sale of Far mine/ Stock taken in Execution. l2Qth June, 1816.] Whereas it is expedient that the execution of legal process should be so regulated as to be consistent with good husbandi-y and the effect and intent of covenants and agreements entered into between the owners and occupiers of land let to farm: be it enacted, &c. that no sheriff or other officer in England or Wales shall, by virtue of any process of any coiu-t of law, carry off, or sell, or dispose of, for 'the purpose of being carried off, from any lands let to farm any straw threshed or unthreshed, or any straw of crops growing, or any chaff, colder, or any turnips, or any manui-e, compost, ashes, or seaweed, in any case whatsoever; nor any hay, grass, or grasses, whether natural or artificial, nor any tares or vetches, nor 'any roots or vegetables, being i^roduce of such lands, in any case where, according to any covenant or written agreement entered into and made for the benefit of the owner or landlord of any farm, such hay, grass or grasses, tares and vetches, roots or vegetables, ought not to be taken off or withholden from such lands, or which by the tenor or effect of such covenants or agreements ought to be used or expended thereon, and of which covenants or agreements such sheriff or other officer shall have received a written notice before he shall have proceeded to sale. 2. And be it further enacted, that the tenant or occupier of any lands let to farm, against whose goods anv process of law shall issue, whereby such goods may be taken and sold, shall, on having knowledge of such process, give a written notice to the sheriff or other officer executing the same of such covenants or agi-eements whereof he or she shall have knowledge, and which may relate to and regulate, or are intended to regulate, the use and expenditui-e of the crops or produce grown or gi-owiug thereon, and also of the name and residence of the owner or landlord of such lands ; and such sheriff' or other officer shall forthwith on executing such process, and before any sale shall have been proceeded in, send a notice by the general post to the owner or landlord of such lands, in all cases where such owner or landlord shall be resident in any part of this United Kingdom, and shall have been made known to and ascertained by such sheriff or other officer, and also to the known steward or agent of such landlord or owner, in respect of such lands, stating to such owner, landlord, and agent the fact of possession having been taken of any crops or produce hereinbefore mentioned ; and such sheriff' or other officer shall, in all cases of the absence or silence- of such landlord or owner, or his or her agent, postpone and delay the sale of such crops or produce imtil the latest day he lawfully can or may appoint for such sale. 3. Provided always, and be it fiu'ther enacted, that such sheriff or other officer executing such process may dispose of any crops or produce hereinbefore mentioned to any person or persons who shall agree in writing with such sheriff or other officer, in cases where no covenant or written agreement shall be shown, to use and expend the same on such lands in such manner as shall accord with the custom of the country, and in cases where any covenant or written agree- ment shall be shown then according to such covenant or wi'itten agreement ; and after such sale or disposal so qualified it shall be lawful for such person or persons to use all such necessary barns, stables, buildings, outhouses, yards and fields, for the purpose of consuming such crops or produce, as such sheriff or other officer shall allot or assign to them for that pui-pose, and which such tenant or occupier would have been entitled to and ought to have used for the like purpose on such lands. 4. And be it further enacted, that such sheriff or other officer shall, on the request of any landlord or owner who shall be aggrieved by any brea_ch of such agreement, permit such landlord or owner to bring any action or actions in the name of such sheriff or other officer for the recovery of damages in respect of such breach ; such landlord or owner having nevei-theless fully indemnified such sheriff or other officer against all costs whatsoever, and all loss and damage, before any such action shall be commenced. 5. And' be it further enacted, that such sheriff or other officer shall, before any sale of any crops or produce of any lands let to farm shall be proceeded in, make by all ways and means due 'inquiry within the parish where such App. A. s. 2. 56 Geo. 3, c. 50. No Sheriff or other Officer shall sell or carry oft" from any Lands any Straw, Chaff, or Turnips, in any case, nor any Hay or other Produce contrary to the Covenant. Tenant to give Notice of the Existence of Covenants ; and Sheriff to give Notice to the Owner or Landlord. Sheriff may dispose of Produce, subject to an agreement to expend it on the Laud. Sheriff to assign Agreement to Landlord. Sheriff to inquire as to the Name and Residence of the Landlord. I 57- 900 Appendix A. (statutes). App. a. s. 2. 56 Geo. 3, c. 50. Landlords not to distrain for Rent on Purchasers of Crops severed from the Soil or other Things fiold subject to Agreement. Sheriff not to sell any Clover, &c., growing with Corn. Act not to affect Contracts. Sheriff not to ■be liable for Damages, unless for wilful Omission. Indemnity to Sheriff and others acting under the Provisions of this Act. Assignee of Bankrupt, &c., not to take any Crop iu any other Way than the Bankrupt would have been •entitled to do. lands shall be situate, as to the name and residence of the landlord or owner of .such lands. 6. And be it further enacted, that in all cases where any purchaser or pur- chasers of any crop or produce hereinbefore mentioned shall have entered into any agi^eement with such sheriff or other officer touching the use and expendi- ture thereof on lands let to farm, it shall not be lawful for the owner or landlord of such lands to distrain for any rent on any corn, hay, straw, or other produce thereof, which at the time of such sale, and the execution of such agreement entered into under the provisions of this act, shall have been severed from the soil and sold, subject to such agieement, by such sheriff or other officer, nor on any turnips whether drawn or growing, if sold according to the provisions of this act, nor on any horses, sheep, or other cattle, nor on any beasts whatsoever, nor on any waggons, carts, or other implements of husbandry which any person or persons shall employ, keep, or use on such lands, for the purpose of threshing out, carrying, or consuming any such corn, hay, straw, turnips, or other produce, under the provisions of the act, and the agreement or agreements directed to be entered into between the sheriff or other officer, and the purchaser or pirrchasers of such crops and produce as hereinbefore mentioned. 7. And be it further enacted, that no sheriff or other officer shall, by virtue of any process whatsoever, sell or dispose of any clover, rye-grass, or any artificial gi'ass or grasses whatsoever, which shall be newly sown and be growing luider any crop of standing corn. 8. Provided always, and be it enacted, that this act shall not extend to any straw, ttu'nips, or other articles which the tenant may remove from the farm consistently with some contract in writing. 9. And bo it further enacted, that in every case where any action shall be brought against such sheriff or other officer for any breach of or omission of comi)liancc with the provisions of this act, no plaintiff shall be entitled to recover any damages against such sheriff or other officer unless it shall be proved on the trial of such action that such breach or omission was wilful on the part of such sheriff or other officer. 10. And be it further enacted, that no .sheriff or under-sheriff, nor any or either of their deputies, agents, bailiffs, or servants, nor any person or persons who ,'aths, passages, wiiys, waters, water- courses, liberties, privileges, easements, profits, commodities, emoluments, here- ditaments, and appiu'tenauces whatsoever to the lands and tenements therein comprised belonging or in anywise appertaining. 3. In taxing any bill for preparing and executing any deed under this act, it shall be lawful for the taxing officer, and he is hereby required, in estimating the proper sum to be charged for such transaction, to consider not the length of such deed, but only the skill and labour employed, and responsibility' incurred in the preparation thereof. 4. Any deed or pai't of a deed, which shall fail to take effect by virtue of this act, shall nevertheless be as valid and effectual, and shall bind the parties thereto, as far as the rules of law and equity will permit, as if this act had not been made. 5. In the construction, and for the piirposes of this act, and the schedules hereto annexed, unless there be something in the subject or context repiignant to such construction, the word " lands" shall extend to all tenements and here- ditaments of freehold tenure, and to such customary lands as will pass by deed, or deed and surrender, and not by surrender alone, or any undivided part or share therein respectively ; and every word imjiorting the singular number only, shall extend and be applied to several persons or things, as well as one person or thing, and the converse ; and every word importing the masculine gender only, shall extend and be apj^lied to a female as well as a male ; and the word " party" shall mean and include any body politic or corporate, or collegiate, as well as an individual. 6. The schedules, and the directions and forms therein contained, shall be deemed and taken to be parts of this act. 7. This act shall commence and take effect from and after the first day of October [1845]. 8. That this act shall not extend to Scotland. App. a. s. 3. 8 & 9 YiCT. c. 124. Where the Words of Column 1 of the Second Schedule employed, the Deed to have the same Effect as if Words of Column 2 were inseited. Deed to include all Houses, &e. RemuiH'ration for Deed under the Act not to be by Length only. Deed failing to take effect by this Act to be valid. Construction- Clause. Schedules, &c., part of Act. Commencement of Act. Extent of Act. The First Schedule. This Ixdexture, made the day of , one thousand eight hundred and forty [or other year'], in pursixance of an act to facilitate the granting of certain leases, Between [here insert the names of the parties, and recitals if ant/'] : WITNESSETH, that the said [lessor] or [lessors] doth, or do, demise unto the said [lessee] or [lessees], his [or their] executors, administrators and assigns, AxL, &c. [parcels], From the day of for the term of thence ensuing : Yielding therefor during the said term the rent of [state the rent and mode of 2)ayment] [d). In witness whereof the said parties hereto have hereunto set their hands and seals. (fZ) Also the covenants — That, &c., as in columu 1 {selecting those intended). 902 Appendix A. (statutes and rules). pp. A. s. 3. 8 & 9 Vict. c, 124. The Second Schedule. Directions as to the Forms in this Schedule. 1. Parties wlio use any of the forms in the first column of this schedule, may- substitute for the words "lessee" or "lessor," any name or names ; and in every such case corresponding substitutions shall be taken to be made in the corresponding forms in the second column. 2. Such parties may substitute the feminine gender for the masculine, or the plui-al number for the singular, in the f oitqs m the first column of this schedule : and corresponding changes shall be taken to be made in the corresponding forms in the second column. 3. Such parties may fill up the blank spaces left in the forms 4 and 5 in the first column of this schedule so emiiloyed by them, with any words or figures, and the words or figui'es so introduced shall be taken to be inserted in the corresponding blank spaces left in the fonns embodied. 4. Such parties may introduce into or annex to any of the forms in the fii'st column any express excejjtions fi-om, or express qualifications thereof respec- tively ; and the like exceptions or qualifications shall be taken to be made from or in the corresponding fonns in the second column. 5. Where the premises demised shall be of freeh(jld tenure, the covenants 1 to 10 shall be taken to be made with, and the proviso 11 to apply to, the heirs and assigns of the lessor. And when." the premises demised shall be of leasehold tenm-e, the covenants and proviso shall be taken to be made with and apply to the lessor, his executors, administrators and assigns. Column 1. 1. That the said '[lessee^ covenants with the said \_Iessor'\ to pay rent. 2. And to pay taxes ; 3. And to repair- ; 4. And to paint outside every year ; Column 2. 1 . And the said [lesser'] doth hereby for himself, his heirs, executors, administrators and assigns, covenant with the said \_lcssor], that he, the said [/^ssrc], his exe- cutors, administrators and assigns, will during the said term, pay unto the said llcssorl the rent lierebj' reserved, in manner hereinbefore mentioned, without any deduc- tion whatsoever. 2. And also will pay all taxes, rates, duties, and assessments whatsoever, whether parochial, parlia- mentary or otherwise, now charged or hereaftei' to be charged upon the said demised premises, or upon the said [hssur] on account thereof (excepting land tax, and excepting, in Ireland, tithe rent-charge, and such portion of the poor rate as the [lessor] is or may be liable to pay ; and excepting also all taxes, rates, duties and assessments whatsoever, or any portion thereof which the [lessee'] is or may be by law exempted from (e) ). 3. And also will, dvuing the said term, well and sufficiently repair, maintain, pave, empty, cleanse, amend and keep the said demised premises, with the appurtenances, in good and substantial repair, together with all chimney-pieces, windows, doors, fastenings, water-closets, cisterns, partitions, fixed presses, shelves, pipes, jmmps, pales, rails, locks and keys, and all other fixtm-es and things, which at any time duiing the said temi shall be erected and made, when, where and so often as need shall be. 4. And also that the said [lessee'], his executors, administrators and assigns, will in eveiy year in the said term, paint all the outside wood-work and iron- (c) It is difficult to say from what taxes, rates, kc, a tenant is by law exempt ; ante Chap. XV. 8 & 9 Vict. c. 124 (The Leases Act, 1845). 903 Column 1. 5. And to paint and paper inside every year ; 6. And to insure from fire in the joint names of tlie said £/essor] and tlie said [lessee] ; To show receipts ; And to rebuild in case of fire. 7. And that the said [lessor] may enter and view state of repair, and that the said [lessee] will repair according to notice. S. That the said [lessee] will not use premises as a shop. 9. And will not as- eio-n without leave. 10. And that he will leave premises in good repaii-. Column 2. work belonging to the said premises, with two coats of proper oil colours, in a workmanlike manner. 5. And also that the said [lessee], his executors, administrators and assigns, will in every year, paint the inside wood, iron and other works, now or usually painted with two coats of proper oil-colours, in a workmanlike manner; and also re-paper with paper of a quality as at present, such parts of the premises as are now papered ; and also wash, stop, whiten or colour such parts of the said premises as are now plastered. G. And also that the said [lessee], his executors, administrators and assigns, will forthwith insure the said premises hereby demised to the full value thereof, in some respectable insurance office, in the joint names of the said [lessor], his executors, administrators and assigns, and the said \lessee], his executors, administra- tors or assigns, and keep the same so insured during the said term : And will upon the request of the said [lessor] or his agent, show the receipt for the last premium paid for such insiirance for every current year : And as often as the said premises hei'eby demised shall be burnt down or damaged by fire, all and every the sums or sum of money which shall be recovered or received by the said [lessee], his executors, administra- tors, or assigns, for or in respect of such insurance, shall be laid out and expended by him in building or repaiiing the said demised premises, or such parts thereof as shall be bui'nt down or damaged by fire as aforesaid. 7. And it is hereby agreed that it shall be lawful for the said \Jessor] and his agents, at all seasonable times during the said term, to enter the said demised premises, to take a schedule of the fixtures and things made and erected thereupon, and to examine the condition of the said premises ; and further, that all wants of repara- tion, which upon such views shall be found, and for the amendment of which notice in writing shall be left at the premises, the said [lessee], his executors, adminis- trators and assigns, will, within three calendar months next after every such notice, well and sufficiently repair and make good accordingly. 8. And also, that the said [lessee], his executors, administrators and assigns, will not convert, use or occupy the said prenxises, or any part thereof, into or as a shop, warehouse, or other place, for canying on any trade or business whatsoever, or suffer the said premises to be used for any such purpose or otherwise than as a private dwelling-house, without the consent in writing of the said [lessor]. 9. And also, that the said [lessee] shall not nor will during the said term assign, transfer or set over, or otherwise by any act or deed procui'e the said premises, or any of them, to be assigned, transferred or set over unto any person or persons whomsoever, without the consent in writing of the said [lessor], his executors, administrators or assigns, first had and obtained. 10. And further, that the said [lessee] will, at the expiration or other sooner determination of the said term, peaceably surrender and yield up unto the said [lessor] the said premises hereby demised, with the appurten- ances, together with all buildings, erections, and fixtures, App, a. s. 3. 8 & 9 Vict. c. 124. 904 Appendix A. (statutes and rules). App. a. s. 3 8 & 9 Vict. c. 124. Column 1, 1 1 . Proviso for re- entry by the said lessor on non-pay- ment of rent or non- performance of cove- nants. 12. The said [hs- sor] covenants with the said [_less€e] for qviiet enjoyment. Column 2. now or hereafter to be biiilt or erected thereon, in good and substantial repair and condition in all respects, reasonable wear and tear, and damage by fire only excepted. 11. Provided always, and it is expressly agreed, that if the rent hereby reserved, or any part thereof, shall be unpaid for fifteen days after any of the days on which the same ought to have been paid (although no foiTual demand shall have been made thereof), or in case of the breach or non-performance of any of the covenants and agreements herein contained on the part of the said [lessee], his executors, administrators and assigns, then and in either of such cases it shall be law- ful for the said [lessor'] at any time thereafter, into and upon the said demised premises, or any part thereof, in the name of the whole to re-enter, and the same to have again, repossess and enjoy as of his or their former estate, anything/K-mwa/^er (/) contained to the contrary notwithstandinjr. 12. x\nd the [lessor] doth hereby for himself, his heirs, executors, administrators and assigns, covenant with the said [/f «?(-<-], his executors, administrators and assigns, that he and they paying the rent hereby reserved, and performing the covenants hereinbefore on his and their part contained, shall and may peaceably possess and enjoy the said demised premises for the term hereby granted, without any interruption or dis- turbance from the said [lessor], his executors, adminis- trators or assigns, or any other person or person. •< lawfully claiming by, from or luider him, them or any of them. On Determina- tion of Leases or Ti'iiaiieies under Tenant for Life, &c.. instead of Emblements. Tenant to hold until expiration of Current Year. &c. Sect. 4. — 14 & \o Vict. c. 25 (Tue L.vndloed axd Tex.vkt Act, 1851 (.) The time at which each imjirovement, act, or thing was executed, done, committed, or permitted ; (c.) The sum awarded in respect of each improvement, act, matter, or thing ; and {(I.) "\^Tiere the landlord desires to charge his estate with the amoiuit of com- pensation found due to the tenant, the time at which, for the purposes of such charge, each imjjrovement, act, or thing in respect of which compensation is awarded is to be deemed to be exhausted. 20. The costs of and attending the reference, including the remuneration of the referee or referees and umpire, where the umpire has been requii'ed to act, and including other proper expenses, shall be borne and paid by the jiarties in such propoi-tion as to the referee or referees or umpires appears just, regard being had to the reasonableness or unreasonableness of the claim of either party in respect of amount, or otherwise, and to all the circumstances of the case. The award may direct the payment of the whole or any part of the costs aforesaid by the one party to the other. The costs aforesaid shall be subject to taxation by the registrar of the county court, on the application of either pai'ty, but that taxation shall be subject to review by the judge of the county court. 21. The award shall fix a day, not sooner than one month after the delivery of the award, for the payment of money awarded for compensation, costs, or otherwise. 22. A submission or award shall not be made a rule of any court, or be removable by any process into any court, and an award shall not be questioned otherwise than as provided by this Act. 23. ^"here the sum claimed for compensation exceeds one hundred pounds, either party maj', within seven days after deliveiy of the award, appeal against it to the judge of the county court on all or any of the following grounds. 1. That the award is invalid ; 2. That the award proceeds wholly or in part ujion an improper application of or upon the omission properly to apply the special provisions of sections three, four, or five of this Act ; 3. That compensation has been awarded for improvements, acts, or things, breaches of covenants or agreements, or for committing or permitting waste, in respect of which the party claiming was not entitled to com- pensation ; App. a. s. 10. 46 & 47 Vict. c. 61. Award in respect of Compensation under ss. 3, 4, and 5. Reference to and award by Umpire. Award to give Particulars. Costs of Reference. Submission not to be removable, &c. Appeal to County Court. 920 Appendix A. (statutes and rules). App. a. s. 10. 46 & 47 Vict. c. 61. Recovery of Compensation. Appointment of Guardian. Married Women . 45 & 46 Vict. c. 75. Costs in County Court. Service of Notice, &c. Power for Landlord on Paying Com- pensation to obtain Charge. 4. That compensation lias not been awarded for improvements, acts, or things, breaches of covenants or agreements, or for committing or per- mitting waste, in respect of which the party claiming was entitled to compensation ; and the judge shall hear and determine the appeal, and may, in his discretion, remit the case to be reheard as to the whole or any part thereof by the referee or referees or umpii-e, with such directions as he may think fit. If no ai)peal is so brought, the award shall be final. The decision of the judge of the county court on appeal shall be final, save that the judge shall, at the request of either party, state a special case on a question of law for the judgment of the High Court of Justice, and the decision of the High Court on the case, and respecting costs and anj- other matter connected therewith, shall be final, and the judge of the county court shall act thereon. 24. Where any money agreed or awarded or ordered on appeal to be paid for compensation, costs or otherwise, is not paid within fourteen days after the time when it is agreed or awarded or ordered to be paid it shall be recoverable, upon order made by the judge of the county court, as money ordered by a county court under its ordinary jui'isdiction to be paid is recoverable. 25. Where a landlord or tenant is an infant without a guardian, or is of unsound mind, not so found by inquisition, the county court, on the ai^jjlication of any person interested, may appoint a guardian of the infant or person of unsound mind for the purposes of this Act, and may change the guardian if and as occasion requires. 26. Where the appointment of a person to act as the next friend of a married woman is recjuired for the piu'poses of this Act, the county court may make such appointment, and may remove or change that next friend if and as occasion requires. A woman married before the commencement of the Married Women's Projierty Act, 1S82, entitled for her separate use to land, her title to which accrued before such commencement as aforesaid, and not restrained from anticipation, shall, for the purposes of this Act, be in respect of land as if she was unmarried. Where any other woman married before the commencement of the Married Women's Property Act, 1S82, is desirous of doing any act under this Act in respect of land, her title to which accrued before such commencement as afore- said, her husband's conciu-rence shall be requisite, and she shall be examined apart from him by the county court, or by the judge of the county court for the place where she for the time being is, touching her knowledge of the natui'e and effect of the intended act, and it shall be ascertained that she is acting freely and voluntarily. 27. The costs of proceedings in the county court under this Act shall be in the discretion of the court. The Lord Chancellor may from time to time prescribe a scale of costs for those proceedings, and of costs to be taxed by the registrar of the court. 28. Any notice, request, demand, or other instrument under this Act may be served on the j^erson to whom it is to be given, either personally or by leaving it for him at his last known place of abode in England, or by sending it through the post in a registered letter addressed to him there ; and if so sent by post it shall be deemed to have been served at the time when the letter con- taining it would be delivered in ordinary' course : and in order to prove service by letter it shall be sufficient to prove that the letter was i^roperly addressed and posted, and that it contained the notice, request, demand, or other instru- ment to be served. Charge of Tenanfs Compensation. 29. A landlord, on paying to the tenant the amount due to him in respect of comj^ensation under this Act, or in respect of compensation authorised by this Act to be substituted for compensation under this Act, or on expending such amount as may be necessary to execute an improvement under the second part of the First Schedule hereto, after notice given by the tenant of his intention to execute such improvement in accordance with this Act, shall be entitled to obtain from the county court a charge on the holding, or any jjart thereof, to the amount of the sum so paid or expended. Agricultueal Holdings Act, 1883 — Chauge. 921 The court shall, on proof of the imyment or expenditure, and on being satisfied of the observance in good faith by the parties of the conditions imijosed by this Act, make an order charging the holding, or any part thereof, with repajTnent of the amount paid or expended, with such interest, and by such instalments, and with such directions for giving effect to the charge, as the coui't thinks fit. But where . the landlord obtaining the charge is not absolute owner of the holding for his own benefit, no instalment or interest shall be made payable after the time when the improvement in respect whereof compensation is paid will, where an award has been made, be taken to have been exhausted according to the declaration of the award, and in any other case after the time when any such improvement will in the opinion of the court, after hearing such evidence (if any) as it thinks expedient, have become exhausted. The instalments and interest shall be charged in favour of the landlord, his executors, administrators and assigns. The estate or interest of any landlord holding for an estate or interest deter- minable or liable to forfeiture by reason of his creating or suffering any charge thereon shall not be determined or forfeited by reason of his obtaining a charge under this Act, anything in any deed, will, or other instrument to the contrary thereof notwithstanding. Capital money arising under the Settled Land Act, 1882, may be applied in payment of any monej^s expended and costs incurred by a landlord under or in pursuance of this Act in or about the execution of any improvement mentioned in the first or second parts of the Schedule hereto, as for an improvement authorised by the said Settled Land Act ; and such money may also be applied in discharge of any charge created on a holding under or in pursuance of this Act in respect of any such improvement as aforesaid, as in discharge of an incumbrance authorised by the said Settled Land Act to be discharged out of such capital money. 30. The sum charged by the order of the county court under this Act shall be a charge on the hokUng or the j^art thereof charged, for the landlord's interest therem, and for all interests therein subsequent to that of the landlord ; but 60 that the charge shall not extend beyond the interest of the landlord, his executors, administrators, and assigns, in the tenancy where the landlord is himself a tenant of the holding. 31. Where the landlord is a person entitled to receive the rents and profits of any holding as trustee, or in any character otherwise than for his own benefit, the amount due from such landlord in respect of compensation under this act, or in respect of compensation authorised by this act to be substituted for com- pensation under this Act, shaU be charged and recovered as follows and not otherwise; (that is to say,) (1.) The amount so due shall not be recoverable personally against such landlord, nor shall he be under any liability to pay such amount, but the same shall be a charge on and recoverable against the holding only. (2.) Such landlord shall, either before or after having paid to the tenant the amount due to him, be entitled to obtain from the county court a charge on the holding to the amount of the sum required to be paid or which has been j^aid, as the case may be, to the tenant. (3.) If such landlord neglect or fail within one month after the tenant has quitted his holding to pay to the tenant the amount due to him, then after the expiration of such one month the tenant shall be entitled to obtain from the county court in favour of himself, his executors, adminis- trators, and assigns, a charge on the holding to the amount of the sum due to him, and of all costs properly incurred by him in obtaining the charge or in raising the amount due thereunder. (4.) The coiu't shall on proof of the tenant's title to have a charge made in his favour make an order charging the holding with payment of the amount of the charge, including costs, in like manner and form as in case of a charge which a landlord is entitled to obtain. 32. Any company now or hereafter incorporated by Parliament, and having power to advance money for the improvement of land, may take an assignment of any charge made by a county court under the provisions of this act, upon such terms and conditions as may be agreed upon between such company and App. a. s. 10. 46 & 47 Vict. c. 61. -> & 46 Viet. 38. Incidence of Cliarge. Trustee Land- lord. Advance made by a Company. 922 Appendix A. (statutes and p.ules). Time of Notice to Quit. Teuant's property in Fixtures, Machinery, &c. Api', a. s. 10. the person entitled to such charge ; and such company may assign any charge so 46 & 47 Vict, acquired by them to any person or persons whomsoever, c. 61. Notice to Quit. 33. Where a half-year's notice, expiring with a year of tenancy is by law necessary and sufficient for determination of a tenancj^ from year to year, in the case of any such tenancy under a contract of tenancy made either before or after the commencement of this act, a year's notice so expiring shall by virtue of this act be necessary and sufficient for the same, unless the landlord and tenant of the holding, by wiiting under their hands, agree that this section shall not ajDply, in which case a half-year's notice shall continue to be sufficient ; but nothing in this section shall extend to a case where the tenant is adjudged bankrupt, or has filed a petition for a composition or arrangement with his creditors. Fixtures. 34. Where after the commencement of this act a tenant affixes to his holding any engine, machinery, fencing, or other fixture, or erects any building for which he is not under this act or otherwise entitled to compensation, and which is not so affixed or erected in pursuance of some obligation in that behalf, or instead of some fixture or building belonging to the landlord, then such fixtiu'e or building shall be the property of and be removable by the tenant before or within a reasonable time after the termination of the tenancy. Provided as follows : — 1. Before the removal of any fixture or building the tenant shall pay all rent owing by him, and shall perform or satisfy all other his obligations to the landlord in respect to the holding : 2. In the removal of any fixture or building the tenant shall not do any avoidable damage to any other building or other part of the holding : 3. Immediately after the removal of any tixtui'e or building the tenant shall make good all damage occasioned to any other building or other part of the holding by the removal : 4. The tenant shall not remove any fixture or building without giving one month's previous notice in writing to the landlord of the intention of the tenant to remove it : 5. At any time before the exjiiration of the notice of removal the landlord, by notice in writing given by hini to the tenant, may elect to pui'chase any fixture or building comprised in the notice of removal, and any fixture or building thus elected to be pui'chased shall be left by the tenant, and shall become the property of the landlord, who shall pay the tenant the fair value thereof to an incoming tenant of the holding ; and any difference as to the value shall be settled by a reference imder this act, as in case of compensation (but without appeal). Application of Act to Crown Lands. Croicn and Duchy Lands. 35. This act shall extend and apply to land belonging to Her Majesty the Queen, her heirs and successors, in right of the Crown. With respect to such land, for the jmrposes of this act, the Commissioners of Her Majesty's Woods, Forests, and Land Eevenues, or one of them, or other the proper officer or body having charge of such land for the time being, or in case there is no such officer or body, then such person as Her Majesty, her heirs or successors, may appoint in writing under the royal sign manual, shall represent Her Majesty, her heirs and successors, and shall be deemed to be the landlord. Any compensation payable under this act by the Commissioners of Her Majesty's Woods, Forests, and Land Eevenues, or either of them, in respect of an improvement mentioned in the first or second part of the First Schedule hereto, shall be deemed to bo payable in respect of an improvement of land within section one of the Crown Lands Act, 1886, and the amount thereof shall be charged and repaid as in that section provided with respect to the costs, charges, and expenses therein mentioned. Agricultural Holdings Act, 1883. 923 Any compensation payable under this act by tbose Commissioners, or either of them, in respect of an improvement mentioned in the third part of the Pirst Schedule hereto, shall be deemed to be part of the expenses of the management of the Land Revenues of the Cro\\m, and shall be payable to those Commissioners out of such money and in such manner as the last-mentioned exjjenses are by law payable. 36. This act shall extend and aj^ply to land belonging to Her Majesty, her heirs and successors, in right of the Duchy of Lancaster. With respect to such land for the purposes of this act, the Chancellor for the time being of the Duchy shall represent Her Majesty, her heirs and successors, and shall be deemed to be the landlord. The amount of any compensation payable imder this act by the Chancellor of the Duchy in respect of an improvement mentioned in the first or second part of the First Schedule to this act shall be deemed to be an expense incurred in improvement of land belonging to Her Majesty, her heirs or successors, in right of the Duchy, within section twenty-five of the act of the fifty-seventh year of King George the Third, chapter ninety-seven, and shall be raised and paid as in that section provided with respect to the expenses therein mentioned. The amount of any compensation payable under this act by the Chancellor of the Duchy in respect of an improvement mentioned in the third part of the First Schedule to this act shall be paid out of the annual revenues of the Duchy. 37. This act shall extend and apply to land- belonging to the Duchy of Cornwall. With respect to such land, for the purposes of this act, such person as the Duke of Cornwall for the time being, or other the personage for the time being entitled to the revenues and j^ossessions of the Duchy of Cornwall, from time to time, by sign manual, warrant, or otherwise, appoints, shall represent the Duke of Cornwall or other the personage aforesaid, and be deemed to be the landlord, and may do any act or thing under this act which a landlord is authorised or required to do thereunder. Any compensation payable under this act by the Duke of Cornwall, or other the laersonage aforesaid, in respect of an improvement mentioned in the first or second part of the First Schedule to this act shall be deemed to be j^ayable in respect of an improvement of land within section eight of the Duchy of Corn- wall Management Act, 1863, and the amount thereof may be advanced and paid from the money mentioned in that section, subject to the provision therein made for rej)ayment of sums advanced for improvements. Avi'. A. s. 10. 46 & 47 YiCT. c. 61. A]iplieation of Act to Laud of Diicliy of Lancaster. Application of Act to Land of Uucliy of Cornwall. Ecclesiastical and Charitij Lands. 38. A^Tiere lands are assigned or secured as the endowment of a see, the powers by this act conferred on a landlord shall not be exercised by the arch- bishop or bishop, in respect of those lands, except with the previous approval in writing of the Estates Committee of the Ecclesiastical Commissioners for England. 39. Where a landlord is incumbent of an ecclesiastical benefice, the powers by this act conferred on a landlord shall not be exercised by him in respect of the glebe land or other land belonging to the benefice, except with the previous approval in writing of the patron of the benefice, that is, the person, officer, or authority who, in case the benefice were vacant, would be entitled to present thereto, or of the Governors of Queen Anne's Bounty (that is, the Governors of the Bounty of Queen Anne for the Augmentation of the Maintenance of the Poor Clergy). In every case the Governors of Queen Anne's Bounty may, if they think fit, on behalf of the incumbent, out of any money in their hands, pay to the tenant the amount of compensation due to him under this act ; and thereupon they may, instead of the incimibent, obtain from the county coiu't a charge on the holding, in respect thereof, in favour of theiuselves. Every such charge shall be effectual, notwithstanding any change of the incumbent. 40. The powers by this act conferred on a landlord in respect of charging the land shall not be exercised by trustees for ecclesiastical or charitable purposes, Landlora, Arclibishop or Bishop. Landlord, Incumbent of Benelioe. Landlord, Charity Trustees, &c. 924 Appendix A. (statutes and rules). App. a. s. 10. 46 & 47 Vict. c. 61. Eesiimption of possession for Cottages, &c. Provision as to limited Owners. Provision in case of reservation of Eent. except with the previous approval in writing of the Charity Commissioners for England and Wales. Resumption for Improvements, and Miscellaneous. 41. Where on a tenancy from year to year a notice to quit is given by the landlord with a view to the use of land for any of the following j^urposes : The erection of farm labourers' cottages or other houses, with or without gardens ; The providing of gardens for existing fanu labourers' cottages or other houses; The allotment for laboiu'ers of land for gardens or other j)urposes ; The planting of trees ; The opening or working of any coal, ironstone, limestone, or other mineral, or of a stone quarry, clay, sand, or gravel pit, or the construction of any works or buildings to be used in connexion therewith ; The obtaining of brick earth, gravel or sand ; The making of a watercourse or reservoir ; The making of any road, railway, tramroad, siding, canal, or basin, or any wharf, pier, or other work connected therewith ; and the notice to quit so states, then it shall, by virtue of this act, be no objec- tion to the notice that it relates to part only of the holding. In every such case the provisions of this act resjiecting compensation shall apply as on determination of a tenancy in respect of an entire holding. The tenant shall also be entitled to a proportionate reduction of rent in respect of the land comprised in the notice to quit, and in resjiect of any depreciation of the value to him of the residue of the holding, caused hj the withdrawal of that land from the holding or by the use to be made thereof, and the amount of that reduction shall be ascertained by agreement or settled by a reference under this act, as in case of compensation (but without appeal). The tenant shall further be entitled, at any time within twenty-eight days after service of the notice to quit, to seive on the landlord a notice in writing to the effect that he (the tenant) accepts the same as a notice to quit the entire hold- ing, to take effect at the expiration of the then current year of tenancy ; and the notice to quit shall have effect accordinglj". 42. Subject to the provisions of this act in relation to Crown, duchj^ ecclesias- tical, and charity lands, a landlord, whatever may be his estate or interest in his holding, may give any consent, make any agreement, or do or have done to him any act in relation to improvements in respect of which compensation is payable under this act which he might give or make or do or have done to him if he were in the case of an estate of inheritance owner thereof in fee, and in the case of a leasehold possessed of the whole estate in the leasehold. 43. When, bj' any act of parliament, deed, or other instrument, a lease of a holding is authorised to be made, provided that the best rent, or reservation in the nature of rent, is by such lease reserved, then, whenever any lease of a holding is, imder such authority, made to the tenant of the same, it shall not be necessary, in estimating such rent or reservation, to take into account against the tenant the increase (if any) in the value of such holding arising from any improvements made or paid for by him on such holding. Limitation of Distress in respect of Amount and Time. Part II. Distress. 44. After the commencement of this act it shall not be lawful for any landlord entitled to the rent of any holding to which this act applies to distrain for rent, which became due in respect of such holding, more than one year before the making of such distress, except in the case of arrears of rent in respect of a holding to which this act applies existing at the time of the passing of this act, which arrears shall be recoverable by distress up to the first day of January one thousand eight hundred and eightj'-five to the same extent as if this act had not passed. Provided that where it appears that according to the ordinary course of dealing between the landlord and tenant of a holding the payment of the rent of such Agricultukal Holdings Act, 1883 — Disthes^ 925 holding lias been allowed to be deferred until the expiration of a quarter of a year or half a year after the date at which such rent legally became due, then for the purpose of this section the rent of such holding shall be deemed to have become due at the expiration of such quarter or half year as aforesaid, as the case may be, and not at the date at which it legally became due. 45. Where live stock belonging to another person has been taken in by the tenant of a holding to which this act applies to be fed at a fan- price agreed to be paid for such feeding by the owner of such stock to the tenant, such stock shall not be distrained by tlie landlord for rent where there is other sufficient distress to be found, and if so distramed by reason of other sufficient distress not being found, there shall not be recovered by such distress a sum exceeding the amount of the price so agreed to be paid for the feeding, or if any part of such price has been paid exceeding the amount remaining unpaid, and it shall be lawful for the owner of such stock, at any time before it is sold, to redeem such stock by i^aying to the distrainor a sum equal to such price as aforesaid, and any payment so made to the distrainor shall be in full discharge as against the tenant of any sum of the like amount which would be otherwise due from the owner of the stock to the tenant in i^esjiect of the price of feeding : Provided always, that so long as any portion of such live stock shall remain on the said holding the right to distrain such portion shall continue to the fall extent of the price originally agreed to be \ydid for the feeding of the whole of such live stock, or if i^art of such price has been bona fide })aid to the tenant under the agreement, then to the full extent of the price then remaining unpaid. Agricultiu'al or other machinery which is the bona tide property of a person other than the tenant, and is on the premises of the tenant under a bonS, tide agreement with him for the hire or use thereof in the conduct of his business, and live stock of all kinds which is the bona fide property of a person other than the tenant, and is on the premises of the tenant solely for breeding purposes, shall not be distrained for rent in arrear. 46. Where any dispute arises — [a.) in respect of any distress having been levied contrary to the provisions of this act ; or (b.) as to the ownership of any live stock distrained, or as to the price to be paid for the feeding of such stock ; or (c.) as to an}' other matter or thing relating to a distress on a holding to which this act applies : such dispute may be heard and determined by the Countj^ Court or by a coiu't of summary jurisdiction, and any such County Court or court of summary jurisdiction may make an order for restoration of any live stock or things unlawfully distrained, or may declare the price agreed to be paid in the case where the price of the feeding is required to be ascertained, or may make any other order which justice requires : any such dispute as mentioned in this section shall be deemed to be a matter in which a court of summary jurisdiction has authority by law to make an order on complaint in pursuance of the Summary Jurisdiction Acts ; but any person aggrieved by any decision of such court of summary jurisdiction under this section may, on giving such security to the other party as the court may think just, appeal to a court of general or quarter sessions. 47. Where the compensation due under this act, or under any custom or con- tract, to a tenant has been ascertained before the landlord distrains for rent due, the amount of such compensation may be set off against the rent due, and the landlord shall not be entitled to distrain for more than the balance. 48. An order of the County Court or of a coru't of summary jurisdiction under this act shall not be quashed for want of form, or be removed by certiorari or otherwise into any superior court. [49. Limitation of Costs. — Repealed by sect. 9 of Law of Distress Amend- ment Act, 1888, post, being replaced by sect. 8 of that act.] [50. Appraisement and tiule. — Eepealed by sect. 9 of Law of Distress Amend- ment Act, 1888, post, as being replaced by sect. 5 of that act.] [51. Extension of Time to replevy, from 5 days to 15 at request of Tenant.^ Eepealed by sect. 9 of Law of Distress Amendment Act, 1888, post, as being replaced by sect. 5 of that act.] [52. Certificated Bailiffs. — Eepealed by sect. 9 of Law of Distress Amendment Act, 1888, post, as being replaced by sect. 7 of that act.] Xvv. A. s. 10. 46 & 47 YiCT. c. 61. Limitation of Distress in respect of tilings to be Distrained. Renip'ly for wrongful Distress nnder this Act. Set-off of (;ompensatioa against Rent. Exclnsion of certiorari. 926 Appendix A. (statutes and rules). App. a. s. 10. 46 & 47 Vict. c. 61. Commencemeut of act. Holdings to ■which act aijplies. Avoidanre of Agreement inconsistent ■with act. Right of Tenant in respect of Improvement purchased from Outgoing Tenant. Compensation tinder this act to be exclusive. Provisicni as to Change of Tenancy. Restriction in respect of Improvements hj Tenant about to Quit. General saving of Riglits. Interpretation. Part III. General Provisions. 53. This act sliall come into force ou the first day of January one thousand eight hundi'ed and eighty-four, which day is in this act referred to as the commencement of this act. 54. Nothing in this act shall apply to a holding that is not either wholly agricultui'al or wholly pastoral, or in part agricultural, and as to the residue pastoral, or in whole or in part cultivated as a market garden, or to any holding let to the tenant during his continuance in any office, appointment, or emjjloy- ment held under the landlord. 55. Any contract, agreement, or covenant made by a tenant, by virtue of which he is deprived of his right to claim compensation under this act in respect of any improvement mentioned in the First Schedule hereto (except an agreement providing such comj^ensation as is by this act permitted to be substi- tuted for com]3ensation under this act), shall, so far as it deprives him of such right, be void both at law and in equitj'. 56. Where an incoming tenant has, with the consent in writing of his land- lord, paid to an outgoing tenant any compensation payable under or in pursuance of this act in respect of the whole or part of any improvement, such incoming tenant shall be entitled on quitting the holding to claim compensation in respect of such improvement or part in like manner, if at all, as the outgoing tenant would have been entitled if he had remained tenant of the holding, and quitted the holding at the time at which the incoming tenant quits the same. 57. A tenant shall not be entitled to claim compensation hj custom or other- wise than in manner authorised by this act in respect of any improvement for which he is entitled to compensation under or in pursuance of this act, but where he is not entitled to compensation under or in pursuance of this act he may recover compensation under any other act of parliament or any agreement or custom, in the same manner as if this act had not passed. 58. A tenant who has remained in his holding during a change or changes of tenancy shall not thereafter on quitting his holding at the determination of a tenancy be deprived of liis right to claim compensation in respect of improve- ments by reason only that such improvements were made during a former tenancy or tenancies, and not during the tenancy at the determination of which he is quitting. 59. Subject as in this section mentioned, a tenant shall not be entitled to compensation in respect of any imin-ovements, other than manui-es as defined by this act, begun by him, if he holds from year to year, within one year before he quits his holding, or at any time after he has given or received final notice to quit, and, if he holds as a lessee, within one year before the expiration of his lease. A final notice to quit means a notice to quit which has not been waived or withdrawn, but has resulted in the tenant quitting his holding. The foregoing provisions of this section shall not apply in the case of any such improvement as aforesaid — (1.) AVhere a tenant from year to year has begun such improvement during the last year of his tenancy, and, in pursuance of a notice to quit thereafter given by the landlord, has quitted his holdingatthe expiration of that year ; and (2.) Where a tenant, whether a tenant from year to year or a lessee, previously to beginning any such improvement, has served notice on his landlord of his intention to begin the same, and the landlord has either assented or has failed for a month after the receipt of the notice to object to the making of the improvement. 60. Except as in this act expressed, nothing in this act shall take away, abridge, or prejudicially affect any power, right, or remedy of a landlord, tenant, or other person vested in or exerciseable by him by virtue of any other act or law, or under any custom of the country, or otherwise, in respect of a contract of tenancy or other contract, or of any improvements, waste emblements, tillages, away-going crops, fixtures, tax, rate, tithe rent-charge, rent, or other thing. 61. In this act — *' Contract of tenancy" means a letting of or agreement for the letting land for a term of years, or for lives, or for lives and years, or from year to year. AcrracuLTUEAL Holdings Act, 1883 — -Interpretation Clause. 927 A tenancy from year to year under a contract of tenancy current at tlie com- App. A. s. 10. mencement of the act shall for the piu'poses of this act be deemed to 45 & 47 yicx. continue to be a tenancy under a contract of tenancy current at the c. 61. commencement of this act until the first day on which either the landlord or tenant of such tenancy could, the one by giving notice to the other immediately after the commencement of this act, cause such tenancy to deteradne, and on and after such day as aforesaid shall be deemed to be a tenancy under a contract of tenancy beginning after the commencement of this act. •"Determination of tenancy" means the cesser of a contract of tenancy by reason of effluxion of time, or from any other cause : "Landlord" in relation to a holding means any person for the time being entitled to receive the rents and profits of any holding : "Tenant" means the holder of land imder a landlord for a term of years, or for lives, or for lives and years, or from year to year : ■"Tenant" inckules the executors, administrators, assigns, legatee, devisee, or next-of-kin, husband, guardian, committee of the estate or trustees in banki'uptcy of a tenant, or any person deriving title from a tenant ; and the right to receive compensation in respect of any improvement made by a tenant shall enure to the benefit of such executors, administrators, assigns, and other persons as aforesaid : " Holding" means any j^arcel of hind held by a tenant : *' County court," in relation to a holding, means the county court within the district whereof the holding or the laiger part thereof is situate : " Person " includes a body of persons and a corporation aggregate or sole : " Live stock" includes any animal capable of being distrained : "Manures" means any of the improvements numbered twenty-two and twenty-three in the third jjart of the First Schedule hereto. The designations of landlord and tenant shall continue to apply to the parties ■until the conclusion of any proceediugs taken under or in pursuance of this act in respect of compensation for improvements, or under any agreement made in pursuance of this act. 62. On and after the commencement of this act, the Agricultural Holdings (England) Act, 1875, and the Agricultural Holdings (England) Act, 1875, Amendment Act, 1876, shall be repealed. Provided that such repeal shall not afEect — (a.) anything duly done or suffered, or any proceedings pending under or in pursuance of any enactment hereby repealed ; or (h.) any right to compensation in respect of improvements to which the Agri- cultm-al Holdings (England) Act, 1875, applies, and which were executed before the commencement of this act ; or (c.) any right to compensation in respect of any improvement to which the Agricultural Holdings (England) Act, 1875, applies, although executed by a tenant after the commencement of this act if made under a conti'act of tenancy current at the commencement of this act ; or {(I.) any right in respect of fixtures aflhxed to a holding before the commence- ment of this act : and any right reserved by this section maybe enforced after the commencement of this act in the same manner in all respects as if no such repeal had taken place. 63. This act mav be cited for all purposes as the Agricultui'al Holdings (Eng- land) Act, 1883. 64. This act shall not apply to Scotland or Ireland. Repeal of Acts of 1S75 and 1876. Short Title of Act. Limits of Act. EIEST SCHEDULE. Part I. Improvements to which consent of Landlord is required. (1.) Erection or enlargement of buildings. (2.) Formation of silos. (3.) Laj^ing down of permanent pastiu'e. (4.) Making and planting of osier beds. 928 Appendix A. (statutes and rules). App. a. s. 10, (5.) Making of water meadows or works of irrigation. 46 & 47 Vict. (6.) Making of gardens. c. 61. ("^O Making or improving of roads or bridges. (8.) Making or improving of watercoui'ses, ponds, wells, or reservoirs, or of works for the application of water power or for supply of water for agricultural or domestic piu'poses. (9.) Making of fences. (10.) Planting of hops. (11.) Planting of orchards or fruit bushes. (12.) Reclaiming of waste land. (13.) Warping of land. (14.) Embankment and sluices against floods. Part II. Improvement in respect of tvhich notice to Landlord is reijuired. (15.) Drainage. Part III. Improvements to u'ltich consent of Landlord is not re(iidred, (16.) Boning of land with undissolved bones. (17.) Chalking of land. (18.) Clay-burning. (19.) Claying of hmd. (20.) Liming of land. (21.) Marling of land. (22.) Ap})licati()n to land of purchased artificial or other purchased manure. (23.) Consumption on the holding by cattle, sheep, or pigs of cake or other feeding stuff not produced on the holding. SECOND SCHEDULE. Section 49. Levying distress. Three j)er centum on any sum exceeding £20 and not exceeding £50. Tivo and a half per centum, on any sum exceeding £50. To bailiff for levy, £1 Is. 'Toman in ^wssession, if hoarded, 3s. Qd. per day ; if not boarded, os. per day. For advertisements the sum actually ^)«/(^. To auctioneer. For sale five pounds per centum on the sum realised not exceeding £100, and four per centum on any additional sum realised not exceeding £100, and on any sum exceeding £200 three pjer centum. A fraction of £1 to he in all cases considered £1. Reasonable costs and charges irhere distress is ivithdraivn, or ichere no sale takes place, and for negotiations between landlord and tenant respecting the distress ; such costs and charges in case the parties differ to he taxed by the registrar of the county court of the district in wliich the distress is made.- — This schedule, though not expressly, is impliedly repealed, wuth sect. 49, by sect. 9 of the Law of Distress; Amendment Act, 1888. Interpretation. Statement of grounds of appeal to be tiled. COUNTY COUKT EULES, 1889. Order XL. — Agricultural Holdings (England) Act, 1883. 1. "S\lien an appeal is made to the judge against an award made under the- Agricultural Holdings (England) Act, 1883, the party prosecuting the appeal shall be called the appellant, and the party supporting the award the respon- dent. 2. The appellant shall, within seven days after the delivery of the award, file a copy thereof, together with the concise statement in writing of his grounds of appeal, which shall contain the following particulars : — Agricultukal Holdings Act, 1883 — Scheduled Improye:ments. 929 (1.) If the appeal shall be made on the ground mentioned in section twenty- three, sub-sections one and two, of the said Agricultural Holdings Act, a statement of the several objections to the validity of the award on which he relies : (2.) If the appeal is on any of the grounds mentioned in section twenty-three, sub-section three, of the said Agricultural Holdings Act, a statement showing in respect of what matters compensation is alleged to have been improperly awarded : (;}.) If the appeal is made on any of the grounds mentioned in section twenty- three, sub-section four, of the said Agricultui'al Holdings Act, a state- ment showing in respect of what matters compensation is alleged to have been improperly withheld : (4.) No groimd of appeal shall be allowed at the trial unless the foregoing provision of this rule shall in respect of such ground have been complied with : (o.) The full names and addresses of the respondent and of the appellant and his solicitor if the proceedings are commenced through a solicitor. 3. The registrar shall, within twenty-foiu' houi-s after the filing of the concise statement, transmit a copy thereof by post to every respondent at the addr-ess furnished to him, accompanied by a notice requiring the respondent to comply with the provisions of the next following rule, according to the form in the Appendix. 4. The respondent shall, within seven days after the transmission of the grounds of appeal to him, deliver to the registrar a statement in writing signed by himself or his solicitor disclosing the following matters : (1.) Whether he disputes the validity in law of all, or any, and which of the grounds of objection to the award : (2.) Whether he disputes the truth in fact of all, or any, and which of the grounds of appeal : (3.) Whether he admits the validity in law and truth in fact of all, or any, and which of the grounds of appeal : (4.) Whether he prays that the case may be remitted to be re-heard : (5.) His full name and address, and that of his solicitor if the statement be delivered through a solicitor. 5. Upon the receipt of the statement in the last preceding rule mentioned, the registrar shall transmit a copy thereof and of the award and grounds of appeal to the judge, who shall, as soon as conveniently may be, appoint a time and place for the hearing of the appeal and instruct "the registrar to give notice thereof forthwith to the parties. 6. The judge shall hear and determine the appeal, and the order thereupon may be enforced in the same manner as any other judgment of the court. [7. Procedure in applications for Referee or Umpire. — Annulled (s) by Eule 32 of the County Court Eules 1895, the following rule being directed to stand in lieu thereof : — ] App. a. s. 10. COUMTY CorpTs Oedek itnoer Agp.icul- TURAL Hold- ings Act. Copy uf statement to lie sent to respondent. Form 311. Respondent to deliver state- ment in rei-il}'. Copies of liotli statements to be sent to Jndge. Order. Form 312. County Court Eules, 1895, Order XL. Order XL., Eule 7, is hereby annulled and the following Eule shall stand in lieu thereof : 7-A.. — (1.) Where a party desires to make application to the Coru't for the appointment of a referee or umpire under sub- section 6 or sub- section 9 of section 9, or sub-section 2 of section 10 of the said Agricultural Holdings Act, 1883, he shall apply in writing to the registrar to fix a time and place for the hearing of such application. (2.) If the party so applying produces to the registrar proof that the parties consent to the registrar exercising the powers of the Court, the registrar shall fix a time for the hearing of the application before himself. Such time shall be within 14 days from the date of the application to the registrar, but shall not be less than seven days from the date of such application, unle8S the parties or theii" solicitors agree to the application being heard at an earlier date. (s) This Rule was held ultra vires, so far as it gave jurisdiction to the registrar to ayipoiut without consent. Griffiths L.T, and Morris, In re, [1895], 1 Q. B. ^QQ ; 64 L. J., Q. B. 386 ; 72 L. T. 290 ; 43 W. E. 652 ; 15 R. 301, per AVills, J. 59 Order XL., Rule 7a. Procednre on application for appointment of referee or umpire. 4(3 & 47 Vict, c. 61, s. 9 (sub-s. 6, 9), s. 10_(sub-s.'2). 930 Appendix A. (statutes and rules). App. a. s. 10. County Courts Order UNDER Agricul- tural Hold- ings Act. Form 312a. 46 & 47 Vict. c. 61, s. 28. 46 & 47 Vict. c. 61, s. 20, (3.) In any other case the registrar shall fix the hearing of the application before the Judge for any court appointed to be held within fourteen days from the date of the application to the registrar, but so that the registrar shall not, except by consent of the parties, fix the hearing for a day less than seven days from the date of such application. (4.) If there is no available Court, the registrar shall send notice of the intended apj^licatiou to the Judge, who shall, as soon as conveniently may be, fix a time and place for the hearing of the application. Such time shall be within fourteen days from the date of the application to the registrar, but shall not, except by consent of the parties, be less than seven days from such date. (o.) On the time and place for the hearing of the application being fixed, the registrar shall issue to the applicant a summons under the seal of the Court, according to the form 312a in the Appendix, addressed to the other party, and requiring him to attend on the hearing of the application. ((3.) Such .summons shall be served by the apjilicant or his solicitor on the other party in accordance with section 28 of the said Act not less than four clear days before the day fixed for the hearing, luiless such j^arty, or his solicitor on his behalf, agrees to accept shorter service ; and where the other party is acting by a solicitor, a copy of such summons shall be sent to such solicitor by the applicant or his soUcitor. (7.) On the day fixed for the hearing the Judge, or by consent of the parties the registrar, .shall dispose of the api:)lication, on hearing the parties, or on hear- ing the applicant, and on proof of .service of the summons on the other j^arty, if such other party does not appear ; but where any application is heard by the registrar he may, if he shall think fit, adjoiu-n the same for hearing by the Judge. (8.) Before appointing any person to serve as referee or umpire, the Judge or registrar shall ascertain that such person is willing to serve, if appointed. (9.) The appointment may be made by endorsement on the summons, or by a separate order. (10.) The costs of the application shall be in the discretion of the Judge or registrar, who may order the .same to he paid by one party to the other, or to be dealt with as costs attending the reference vmder section 20 of the Act. Such costs, if allowed, shall be taxed on such scale as the Judge or registrar shall direct, subject, in the case of any dii-ection by the registrar, to review by the Judge. 46 & 47 Viet. c. 61. Order XL., Rule 3. 311. Notice to a Respondent under the Ayricultural Holdings (England) Act, 1883. The Agricultural Holdings (England) Act, 1883. In the county court of holden at Between A. B., Appellant, and C. D., Eesjiondent. Take notice, that you are required within eight days of the delivery of this notice to you to file in Court a statement, signed by you or your solicitor, in reply to the grounds of apjjeal sent herewith, and that your statement must disclose the following matters : (1.) Whether you dispute the validity in law of all or any and which of the grounds of objection to the award : (2.) "WTiether you dispute the truth in fact of all or any and which of the grounds of ajipeal : (3.) Whether you admit the validity in law and truth in fact of all or any and which of the grounds of appeal : (4.) Whether you pray that the case may be remitted to be re-heard. (5.) Your name and address, and that of your solicitor, if the statement be delivered through a solicitor. Dated this day of 18 . Eegistrar of the court. To the above-named re.spondent. County Coukt Forms — Law of Distress Amendment Act, 1888. 931 312. Order on a a Appeal. The Agricultural Holdings (England) Act, 1SS3. App. a. s. 10. County Courts Order under Agricul- tural Hold- ings Act. In the coxmty court of holden at In the matter of the County Courts Act, 1888, and In the matter of the Agricultural Holdings (England) Act, 1883, and In the matter of an appeal bj' A. B. The day of 18 . Upon the hearing this day of an appeal by {jname and description of appellant] Order XL., against an award "dated [_state date'] given under the hand of ^referee's name] '^^^^^ ^' whereby \_state sJwrtJij the subdance of the award], and on reading the said award, and on hearing the said A. B. and C. D., the respondent. It is ordered that \_state order, e.g. — ] the said C. D., do within fourteen days of the date of this order pay to the said A. B., the sum of £ and for costs and in default of such payments at the time aforesaid the said A. B. may proceed to execution. 312a (t). Summons on Application for appointincnt of Referee or Umpire under the Agricultural Haldinys [England) Act, 1883. In the County Court of holden at In the matter of the Agricultural Holdings (England) Act, 1883, and In the matter of a reference for the settlement of a difference between A. B. of , tenant, and C. D. of , landlord. You are hereby summoned to attend before the Judge [or where the parties consent, the Eegistrar] in chambers at on the day of at the hour of in the noon, on the hearing of an application on the part of for the appointment by the Court of a referee imder sub-section six of section nine of the Agricultural Holdings (England) Act, 1883, by reason of your failure to appoint such referee. [or for the appointment of an umpire under sub-section nine of section nine of the Agricultural Holdings (England) Act, 1883, by reason of the failure of the referees to appoint such umpire.] [or for the appointment of an umpire under sub-section two of section ten of the Agricultui"al Holdings (England) Act, 1883.] And take notice, that in default of your attendance at the time and place above mentioned the Judge l^or where the parties consent, the Registrar] wiU, on proof of service of this summons, proceed to hear and dispose of the said application. Dated this day of To Arid to Ml'. , his solicitor. Eegistrar. Sect. 11. — 51 & 52 Yicx. e. 21 (Law of Distress Amendment Act, 1888). An Act to amend the Law of Distress for Rent. [Itii August, 1888.] 1. This act may be cited as the Law of Distress Amendment Act, 1888. Short Title. 2. This act shall not apply to Scotland or Ireland. _ Extent. 3. This act, except as in this act otherwise provided, shall come into operation Commeucement. from and immediately after the thirty-first day of October one thousand eight hundred and eighty- eight. 4. Erom and after the passing of this act the following goods and chattels Exemptions shall be exempt from distress for rent ; namely, any goods or chattels of the ^'^°'^ Distress. (0 Added by County Court Rules, 1895. 59- 932 Appendix A. (statutes and PtULEs). App. a. s. 11. 51 & 52 Vict. c. 21. Repeal of 2-W. & M. e. 0, s. 1, except where appraise- ment is required In writing. Extension of time to replevy at request of Tenant. Distress to be levied by certified Bailiffs. Power to make Rules. tenant or his family wliieh would be protected from seizure in execution under section ninety-six of the County Courts Act, 1846, or any enactment amending or substituted for the same(H). Provided that this enactment shall not extend to any case where the le:ise, term, or interest of the tenant has expired, and where possession of the premises in respect of which the rent is claimed has been demanded and where the distress is made not earlier than seven days after such demand. 5. So much of an act passed in the second year of the reign of their Majesties King William the Third and Mary, chaj^ter five, as requires appraisement before sale of goods distrained is hereby repealed, except in cases where the tenant or ovsTier of the goods and chattels by writing requires such appraisement to be made, and the landlord or other person levying a distress may, except as aforesaid, sell the goods and chattels distrained without causing them to be previously appraised ; and for the ])urposes of sale the goods and chattels distrained shall, at the request in writing of the tenant or owner of such goods and chattels, be i-emoved to a public auction room or to some other fit and proper place specified in such request, and be there sold. The costs and expenses of appraisement when recjuired by the tenant or owner shall be borne and paid by him; and the costs and expenses attending any such removal, and any damage to the goods and chattels aiising therefrom, shall be borne and paid by the person requesting the removal. 6. The period of five days provided in the said act of WilHam and Mary, chapter five, within which the tenant or owner of goods and chattels distrained may replevy the same, shall be extended to a period of not more than fifteen days if the tenant or such owner make a request in wiiting in that behalf to the landlord or other person levying the distress, and also give security for any additional cost that may be occasioned by such extension of time : Provided that the landloi-d or person le'vj'ing the distress may, at the written request, or with the written consent, of the tenant or such owner as aforesaid, sell the goods and chattels distrained, or part of them, at any time before the expiration of such extended period as aforesaid. 7. From and after the commencement of this act no person shall act as a bailiff to levy any distress for rent luiless he shall be authorised to act as a bailiff by a certificate in writing under the hand of a county court judge; and such certificate may be general or apply to a particular distress or distresses, and may be granted at any time after the passing of tliis act in such manner as may bo presciibed by rules under this act. If any person holding a certificate shall be proved to the satisfaction of the judge of a coiuity coui't to have been guilty of any extortion or other misconduct in the execution of his duty as a bailiff he shall bo liable to have his certificate summarily cancelled by the said judge. Nothing in this section shall be deemed to exempt such bailiff from any other penalty or j^roceeding to which he may be liable in respect of such extortion or misconduct. A county court registrar may exercise the power of gi-anting certificates hereby conferred upon a county court judge in cases in which he may be authorised to do so by I'ules made under this act. li' any pei-son not holdiiig a certificate under this section shall levy a distress contrary to the provisions of this act, the person so levying, and any person who has authorised him so to levy, shall be deemed to have committed a trespass. 8. After the passing of this act the Lord Chancellor may from time to time make, alter, and revoke rules — (l.) For regulating the secruity (if any) to be required from bailiffs ; (2.) For regulating the fees, charges, and expenses in and incidental to distresses ; and (3.) For carrying into effect the objects of this act. (tt) By s. 147 of the Countv Courts Act, 1888, 51 & 52 Vict. e. 43, siibstituted for s. 95 of the County Courts Act, 1846, 9 & ]0 Vict. c. 95, a bailiff executing any county court process of execution against the goods of any person may seize any of the goods of such person "excepting tlie wearing apparel and betiding of such person or hisfaniih^, and the tools and implements of his trade, to the vahie of o/., wliich sliall to tliat extent be protected from sudi seizure." d Law of Distress iVii. Act, 1888 — Distress for Rent Eules, 1888. 933 9. Sections forty-nine, fifty, fifty-one, and fifty-two of the Agricultural Holdings (England) Act, 1S83, are hereby rei^ealed from and after the com- mencement of this act, but this repeal shall not affect anything done or suffered before the commencement of this act under these sections. App. a. s. 12. Rules. Repeal of ss. 49- 52 of Agricul- tural Holdings Act. Sect. 12. — Eules made Puesuaxt to Sectiox Eight of the Law of Distress Amendmext Act, 1888. 1. These rules may be cited as the Distress for Eent Eides, 1888. 2. Certificates granted under the Law of Distress Amendment Act, 1888, hereinafter called the act, may be either general or special. A special certificate shall specify the particular distress or distresses to which it applies. Certificates shall be in the forms Nos. 1 & 2 in ajipendix I. to these rules, with such variations as cii'cumstances may require. 3. A special certificate may be granted by the judge or registrar, but a general certificate shall only be granted by the judge in person. 4. A general certificate shall authorise the bailiff named in it to levy at anj^ place in England or "Wales. .5. Any person (not being an officer of a county coiu't) holding a certificate under the Agricultural Holdings Act, 1883, shall on application be entitled to ■obtain, without fee, a general certificate. 6. Xo certificate shall be granted to any officer of a county court. 7. Any practising solicitor of the supreme coiu't shall, on application and on payment of the prescribed fee, be entitled to a general or special certificate. 8. A general or special certificate may, on j^ayment of the prescribed fee, be granted to any applicant who satisfies the authority granting the same that he is a fit and proper person to hold the certificate. 9. Where the applicant for a certificate is not a ratepayer, rated on a rateable value of not less than 25/. per annum, he may, if the authority applied to thinks fit, be required to give security for the due jjerformance of his duties. 10. The security shall be security to the satisfaction of_ the registrar. In the case of a general certificate the amormt shall be 20/. and in the case of a special certificate the amount shall be ol. 1 1 . The security shall be given to the registrar. It may be given by deposit, or by bond, or by guarantee, as the registrar may think fit. 12. On any application to cancel (.') a certificate the judge may, whether he cancels the certificate or not, order that the security shall be forfeited, either wholly or in part, and that the amount directed to be forfeited shall be paid to the party aggrieved. 13. A^Tiere the judge orders that the secmity shall be forfeited, either wholly or in jDart, but does not cancel the certificate, he may direct that the bailiff shall give fresh seciuity as a condition of retaining his certificate. 14. Subject to' rule 12, where a certificate is cancelled by the judge, the security shall also be cancelled, and the deposit (if any) retui-ned. 15. No person shall be entitled to any fees, cliarges, or expenses for levying a distress, or for doing any act or thing in relation thereto, other than those specified in, and authorised by, the table in appendix II. to these rules. 16. AMiere the rent due exceeds 20/. the fees, charges, and expenses specified in scale I. shall be allowed, and where the rent due does not exceed 20/. the fees, charges, and expenses .specified in scale II. shall be allowed. 17. In case of any difference as to fees, charges, and expenses between the parties, or any of them, the fees, charges, and expenses shall be taxed by the registrar of the district in which the distress is levied. The registrar may make such order as he thinks fit as to the costs of such taxation. IS. A copy of the table of fees, charges, and expenses authorised by these rules shall be posted up by the registrar in a conspicuous place in his office, and every bailiff levying a distress shall, on the request of the tenant, produce to him his certificate and a coj^y of the table. 19. " Judge " means a judge of countj' coiu'ts. " Certificate" means a certificate to act as a bailiff under section seven of the Act. {x) Add " or make void " : See Rule 7 of the Rules of 1895, infra. 934 ^ Appendix A. (statutes and rules). App. a. s. 12. " Registrar " means registrar of a county court, and each registrar where there -n , is more than one, and includes a dejiuty registrar. -"^^^'^- August 31, 188S. (Signed) IIai^sbury, C. APPENDIX I. Form 1. — General Certificate. [Date.] In the county court of , holden at Puisuaut to section seven of the Law of Distress Amendment Act, 1888, I hereby (;y) authorise A. B., of , to act as a bailiff to levy distresses for rent in England and "Wales. Signed {Seal.) Judge. FoBil 2. — Hppciaj Certifimte. [Date.] In the county court of , holden at Pursuant to section seven of the Law of Distress Amendment Act, 1888, I hereby authorise A. B. , of , to act as a bailiff to levy a distress on the premises of C. D. of , for rent alleged to be due to E. F. of Signed {Seal.) Judge. or Registrar. APPENDIX II. — Table of Fees, Charges, aj^d Expenses. SCx\.LE I. — Distresses for Rent where the Sum demanded and due shall exceed 20/. For levying distress. Three per cent, on any sum exceeding 20/. and not exceeding 50/. Two and a half per cent, on any sum exceeding 50/. and not exceeding 200/. ; and one per cent, on any additional sum. For man in possession, 5s. per day ; to provide his own board in every case. For advertisements the sum actually and necessarily paid. For commission to the auctioneer. On sale by auction seven and a half per cent, on the sum realized not exceeding 100/., hve per cent, on the next 200/., four per cent, on the next 200/. ; and on anj" sum exceeding 500/. three per cent, up to 1,000/., and two and a half per cent, on any sum exceeding 1,000/. A fraction of 1/. to be in all cases reckoned 1/. Reasonable fees, charges, and expenses (subject to rule 17) where distress is withdrawn or where no sale takes place, and for negotiations between landlord and tenant respecting the distress. For appraisement, on tenant's written request, whether by one broker or more, 6(/. in the j^ound on the value as apjiraised, in addition to the amount for the stamp. Scale II. — Distresses for Bent tvhere the Sum dimanded and due shall not exceed 201. For levying distress, 3s. For man in possession, 4s. 6r,/. per day ; to jn-ovide his own board in every ease. For appraisement, on the tenant's written request, whether by one broker or more, 6d. in the pound on the value as appraised, in addition to the amount for the stamp. For all exi^enses of advertisements, if any, 10s. Catalogues, sale and commission, and delivery. Is. in the poxmd on the net produce of the sale. For removal at tenant's request, the reasonable expenses (subject to rule 17) attending such removal. (?/) Substitute, in the case of a renewed certificate, "by this renewed certificate'' : Rule 5 of the Rules of 1895, infra. Distress for Eent PiUles, 1888. 935 EuLE MADE Pursuant to the Law of Distress Amendment Act, 1SS8. App. A. s. 12, The words "officer of a county court" in rules five and six of the Distress '. for Eent Eules, 1888, shall not apjily to any officer who was an officer of a county court before the date of those rules. (Signed) Halsbury, C. December 7th, 1888. Sect. 13. — Court Fees. Treasury Order reyidating Fees {Law of Distress Amendmerd Act, 1888). In piu'suance of the powers given by the county courts acts, and of all other powers enabling us in this behalf , we, the undersigned, two of the Commissioners of Her Majesty's treasury, whose names are hereunto subscribed, do hereby, with the consent of the Lord Chancellor, order that the several fees, or sums in the name of fees, specified in the schedule hereunder written, shall be taken on the proceedings therein mentioned, and that the fees so authorised to be taken shall be received by the registrars for the use of themselves. (Signed) Herbert Eustace Maxwell. 15th September, 1888. I approve of the annexed schedule of fees. Sidney Herbert. (Signed) Halsbury, C. Schedule. The Laiv of Distress Amendmerd Act, 1888, and the Bides made thereunder. Fees to be taken in the following matters : — • For every application for a general certificate For every application for a special certificate . . . . For approving of seciu'ity by bond ..... For receiving deposit in lieu of bond . . ... For taxation where required, if the rent exceeds 201. For taxation, where required, if the rent does not exceed 20/. £ s. d. o 2 6 10 6 4 10 5 Sect. 14. — Eules, dated November 29, 1895, under the Law of Distress [For the Act of (Amendment) Act, 1895. isf > f ^ p. 940, ^ ' ' infra.] 1. An applicant for a general certificate shall satisfy the Judge that he is resident or has his principal place of business in the district of the Coui't, and shall state whether he has ever been refused a certificate or had a former certificate cancelled. 2. A general certificate shall (unless previously determined) have effect until the 1st of February next after the expiration of twelve months from the granting thereof, provided that the Judge of the Court where the certificate was granted may renew the same from time to time for the like period. This Eule .shall apply to every certificate granted before the passing of these Eules as if it had been granted at the date of the commencement of the Act (z). 3. A certificate .shall have effect, notwithstanding cancellation or expiration by non-renewal, for the purpose of any distress where the bailiff has entered into possession before the date of cancellation or expiration. 4. On the renewal of a certificate the registrar shall be satisfied that the security required under Eules 9 and 10 of the Distress Eules, 1888, is subsisting. The fee on the application for renewal shall be two shillings and sixpence. 5. A renewed certificate shall be under the hand of the Judge in the Form No. 1 in the Distress Eules, 1888, except that mstead of the word "hereby" {z) I.e., by Kules of 1896, the 6th of July, 1895, the date of the Koyal Assent. 936 Appendix A. (statutes and rules). App. a. s. 14. the words " by this renewed certificate" shall be inserted, and that the date at Distress fop- which the renewed certificate shall become terminable shall be added at the foot ■Rent Rules, thereof. 1895. 6. There shall be made and signed by the registrar on the 1st of February in ■ every year, and exhibited in the office of every Court a list of the bailiffs holding certificates for the time being : and the fact of the subsequent cancellation of any such certificate shall be notified by the registrar on such list and published by him in some local newspaper. 7. Wherever "cancel" occtu-s in the Distress Eules, 1888, add "or make void." 8. The following form of cancellation shall be used : — Form 3. CunceUation of Certificate. Date. In the County Court of holden at In puisuance of section 1 of the Law of Distress Amendment Act, 1895, I hereby cancel and make void the certificate granted to ^ . 5. of , to act as bailiff to levy distress for rent in England and Wales, or (terms of special certificate) save and except as to any distress ivhereon the said A. B. has distrained and, is in possession of the goods. (Signed) Judge. The 29th of November, 1895. (Signed) Halsbury, C. [See Chap. V., Sect. 13, p. 195.] Cliarge of Duties ill Sciiedule. Impressed Stamps. Sect. 15. — 54 & 55 Vict. c. 39 (Stamp Act, 1891). An Act to consoiidate the Enucimevts granting and relating to the Stamp Duties upon Instruments and certain other enactments relating to Stamp Duties. [2lst July, 1891.] 1, From and after the commencement of this Act the stamp duties to be charged for the use of Her Majesty upon the several instruments specified in the first schedule to this Act shall be the several duties in the said schedule sjDecified, which duties shall be in substitution for the duties theretofore chargeable under the enactments repealed bj' this Act, and shall be subject to the exemptions contained in this Act and in any other Act for the time being in force. 2. All stamp duties for the time being chargeable by law upon any instru- ments are to be paid and denoted according to the regulations in this Act contained, and except where express provision is made to the contrary are to be denoted by impressed stamps only. Production of Instruments in Evidence. Te™isupoii 14. — ^1.) Upon the production of an instrument chargeable with any duty as ments not duly evidence in any court of civil judicatiu^e in any part of the United Kingdom, or Stamped may be before any arbitrator or referee, notice shall be taken by the judge, arbitrator, Evklen^'^ or referee of any omission or insufficiency of the stamji thereon, and if the instrument is one which may legally be stamped after the execution thereof, it may, on i)ayment to the officer of the court whose duty it is to read the instru- ment, or to the arbitrator or referee, of the amount of the tuipaid duty, and the penalty payable on stamj^ing the same, and of a further sum of one pound, be received in evidence, saving all just exceptions on other grounds. (2.) The officer, or arbitrator, or referee receiving the duty and penalty shall give a receipt for the same, and make an entry in a book kept for that purpose of the payment and of the amount thereof, and shall communicate to the com- missioners the name or title of the iiroceeding in which, and of the party from whom, he received the duty and iienalty, and the date and description of the Stamp Act, 1891. 987 instrument, and sliall pay over to siicli person as the commissioners may appoint App. A. s. 15. the money received by him for the duty and i^enalty. 54 ^ 55 yjcx. (3.) On production to the commissioners of any instrument in respect of which c. 39. any duty or penalty has been paid, together with the receipt, the payment of the duty and penalty shall be denoted on the instrument. (4.) Save as aforesaid, an instrument executed in an^^ part of the United Kingdom, or relating, wheresoever executed, to any property situate, or to any m.atter or thing done or to be done, in any part of the United Kingdom, shall not, excej^t in criminal proceedings, be given in evidence, or be available for any purpose whatever, ujiless it is duly stamped in accordance with the law in force at the time when it was first executed. Stampinff of Instrmaents after Execution. 15. — (1.) Save where other express provision is in this Act made, any un- Penalty upon stamped or insufficiently stamped instrument may be stamjied after the execu- ji^/stil^j'^^'f^ts tion thereof, on payment of the unpaid duty and a penalty of ten pounds, and after Execution. also by way of further penalty, where the unpaid duty exceeds ten jjounds, of interest on such duty, at the rate of five pounds per centum per annum, from the day upon which the instrument was first executed ujj to the time when the amount of interest is equal to the unpaid duty. (2.) In the case of such instruments hereinafter mentioned as are chargeable Special Penalty with ad valorem duty, the following provisions shall have effect: ™ Lessee not (a.) The instrument unless it is written upon duly stamped material, shall be ' ^"^P™^ duly stamped with the projaer ad valorem duty before the explication of thirty days after it is first executed, or after it has been first received in the United Iviugdom in case it is first executed at any place out of the United Kingdom, unless the opinion of the commissioners with respect to the amount of duty with which the instrument is chargeable, has, before such expiration, been required under the provisions of this Act: (Jj.) If the opinion of the commissioners with respect to any such instrument has been requii'ed, the instrument shall be stamped in accordance with the assessment of the commissioners within fourteen days after notice of the assessment : (r.) If any such instrument executed after the sixteenth day of May one thousand eight hundred and eighty-eight has not been or is not duly stamped in confoi-mity with the foregoing provisions of this sub-section, the person in that behalf hereinafter specified shall incur a fine of ten pounds, and in addition to the penalt,y payable on stamping the instru- ment there shall be paid a further penalty equivalent to the stamp duty thereon, unless a reasonable excuse for the delay in stamping, or the omission to stamp, or the insufficiency of stamp, be afforded to the satisfaction of the commissioners, or of the court, judge, arbitrator, or refei'ee before whom it is produced. {(1.) The instruments and jiersons to which the provisions of this sub-section are to aj)ply are as follows : — Title of Instrument as described in the First Schedule to this Act. Person liable to Penalty. Bond, covenant, or instrument of any kind whatsoever. ' Conveyance on sale. . . . . Lease" or Tack Mortgage, bond, debenture, covenant, and warrant of attorney to confess and enter up judgment. Settlement ...... The obligee, covenantee, or other person taking the security. The vendee or transferee. The Lessee. The mortgagee or obligee ; in the case of a transfer or reconveyance, the transferee, assignee, or disponee, or the person redeeming the security. The settlor. 938 Appendix A. (statutes and rules). App. a. s. 15. (3.) Provided that save where other express provision is made by this Act in 54 & 55 Vict. i"elation to any jjarticuhir instrument : c. 39. («.) Any unstamped or insufficiently stamped instrument which has been first ■ ■ executed at any place out of the United Kingdom, may be stamped, at any time within thirty days after it has been first received in the United Kingdom, on jiayment of the unpaid duty only : and (?).) The commissioners may, if they fit, at any time within three months after the first execution of any instrument, mitigate or remit any penalty I^ayable on stamping. (4.) The payment of any penalty payable on stamping is to be denoted on the instrument by a particular stamp. Counterparts. 72. The dujilicate or counterpart of an instrument chargeable with duty (excejit the counterpart of an instrument chargeable as a lease, such counter- part not being executed by or on behalf of any lessor or grantor), is not to be deemed didy stamped unless it is stamped as an original instrument, or unless it ai^pears by some stamp impressed thereon that the full and proper duty has been paid upon the original instrument of which it is the duplicate or counterpart. Leases. Agreements fur not more than Thirty-five Years to be charged as Leases. Leases how to be cliarged in respect of Produce, &c. No Duty in respect of Penal Rent or Sur- render of Exist- ing Lease. No duty in respect of Covenant for Improvements. Lease for Li\'es. Ecclesiastical Lease. Trinity Colley Dublin. 75. — (1.) An agreement for a lease or tack, or with respect to the letting of any lands, tenements, or heritable subjects for any term not exceeding thirty- five years, or for any indefinite term, is to be charged with the same dutj' as if it were an actual lease or tack made for the term and consideration mentioned in the agreement. (2.) A lease or tack made subsequentlj^ to, and in conformity with, such an agreement duly stamjied is to be charged with the duty of sixpence only. 76. — (1.) Where the consideration, or any part of the consideration, for which a lease or tack is granted or agreed to be granted, consists of anj^ produce or other goods, the value of the produce or goods is to be deemed a consideration in respect of which the lease or tack or agreement is chargeable with ad valorem duty. (2.) Where it is stipulated that the value of the produce or goods is to amount at least to, or is not to exceed, a given sum, or where the lessee is specially charged with, or has the option of paying after any permanent rate of con- version, the value of the produce or goods is, for the piirpose of assessing the ad valorem duty, to be estimated at the given sum, or according to the permanent rate. (3.) A lease or tack or agreement for a lease or tack made either wholly or partially for any such consideration, if it contains a statement of the value thereof, and is stamped in accordance with the statement, is, so far as regards the subject matter of the statement, to be deemed duly stamped, unless or until it is otherwise shown that the statement is incorrect, and that the lease or tack or agreement is in fact not duly stamped. 77. — (1-) A lease or tack, or agreement for a lease or tack, or with resjject to any letting, is not to be charged with any duty in resjject of any penal rent, or increased rent in the nature of a penal rent, thereby reserved or agreed to be reserved or made payable, or by reason of being made in consideration of the siUTender or abandonment of any existing lease, tack, or agreement, of or relating to the same subject matter. (2.) A lea.se made for any consideration in respect whereof it is chargeable with ad valorem duty, and in further consideration either of a covenant by the lessee to make, or of his having previously made, any substantial improvement of or addition to the property demised to him, or of any covenant relating to the matter of the lease, is not to be charged with anj' duty in resj)ect of such further consideration. (3.) No lease for a life or lives not exceeding three, or for a term of years determinable with a life or lives not exceeding three, and no lease for a temi absolute not exceeding twenty-one years, granted by an ecclesiastical cori^ora- tion aggregate or sole, is to be charged with any higher duty than thirty-five shillings. (4.) A lease for a definite term exceeding thirty-five years granted under the Trinity College (Dublin) Leasing and Perpetuity Act, 1851, is not to be charged Stamp Act, 1891. 939 •with any higher duty than would have been chargeable thereon if it had been a lease for a definite term not exceeding thirty-five years. (5.) An instrument whereby the rent reserved by any other instrument chargeable with duty and duly stamped as a lease or tack is increased is not to be charged with duty otherwise than as a lease or tack in consideration of the additional rent thereby made payable. 78. — (1.) The duty upon an instrument chargeable -ndth duty as a lease or tack of — (rt.) any dwelling-house, or j)art of a dwelling-house, for a definite term not exceeding a year at a rent not exceeding the rate of ten pounds per annum ; or (i.) any fui-nished dwelling-house or apartments for any definite term less than a year ; and upon the duplicate or counterpart of any such instrument, may be denoted by an adhesive stamp, which is to be cancelled by the person to whom the instrument is first executed. (2.) Every person who executes, or prepares or is employed in preparing, any such instrument (except letters or correspondence) which is not, at or before the execution thereof, duly stamped, shall incur a fine of five pounds. Apr. A. s. 15. 54 & 55 A'icT. c. 39. No duty except for Additional Rent. Adhesive Stamp wliere Lease for not more than Year at not more than 10?. . or of Furnished House for less than Year. Penalty for preparing any sucli Lease Unstamped. SCHEDULE. Agreement for a lease or tack, or for any letting. See Lease or Tack, and section 75. Counterpart. See Duplicate. Duplicate or Couxterpart of any instrument chargeable with any duty : Where such duty does not amount to os. . In any other case And see section 72. The same duty as tlie original instrument. , 5 Lease or Tack — (1.) For any definite term not exceeding a year : Of any dwelling-house or part of a dwelling-house at a rent not exceeding the rate of 101. per annum .... (2.) For any definite term less than a year : (a.) Of any furnished dwelling-house or apartments where the rent for such term exceeds 25/. .... (?>.) Of any lands, tenements, or heritable subjects except or otherwise than as aforesaid .... 1 2 6 The same duty as a lease for a year at the rent reserved for the definite term. (3.) For any other definite term or for any indefinite term: Of any lands, tenements, or heritable subjects — Where the consideration, or any part of the consideration, moving either to the lessor or to any other person, consists of any money, stock, or security : r The same duty I as a convey- \ ance on a salo f for the same ^ consideration. In respect of such consideration Where the consideration or any part of the consideration is any rent : In respect of such consideration : If the rent, whether reserved as a j'early rent or other- wise, is at a rate or average rate : L 940 Appendix A. (statutes and rules). App. a. s. 15. 54 & 55 Vict. c, 39. If the term does not exceed 35 years, or is indetluite. If the term exceeds 35 years, but does not exceed 100 years. If the term 100 years. £ s. d. £ s. d. £ s. d. Not exceeding 5/. per annum 6 3 6 Exceeding — 5/. and not exceeding 10/. 1 6 12 10/. ,, „ 15/. 1 6 9 18 15/. „ „ 20/. 2 12 1 4 20/. ,, „ 25/. 2 6 15 1 10 25/. „ „ 50/. 5 1 10 3 50/. ,, ,, 75/. 7 6 2 5 4 10 75/. ,, ,, 100/. 10 3 6 100/. For every full sum of 50/., and also for any fractional part of 50/. thereof .... 5 1 10 3 (4.) Of any other kind whatsoever not hereinbefore described And sec sections 75, 76, 77, and 78. 10 SUERENDEE — Of coi^yholds. »SVe Copyhold. Of any other kind whatsoever not chargeable with dutj'' as a conveyance on sale or a mortgage . . . . . . 10 Power to cancel bailiffs' certificates. Penalty for acting wthont certiticate. Duration of certiticates. Unlawful distress. Evidence by accused. Short title. Sect. 16. — 58 & 59 Yict. c. 24 (Law of Disteess Amendment Act, 1895). An Act to amend the Laiv of Distress Amendment Act, 1888. [6/7i July, 1895.] 1. A certificate granted to a bailiff by the judge of a county court under the Law of Distress Amendment Act. 1SS8, may at any time be cancelled or declared void by a judge of that count j' court, and so much of section seven of that Act as refers to the cancellation of certificates is hereby repealed. 2. If any person not holding a certificate for the time being in force under the Law of Distress Amendment Act, ISSS, levies a distress contrary to the provisions of that Act, he shall without prejudice to anj^ civil liability be liable on summary conviction to a fine not exceeding ten pounds. 3. The power to make rules under the Law of Distress Amendment Act, 1888, shall extend to making provision for fixing the duration of certificates granted, or to be hereafter granted, to bailiffs. 4. A court of summary jurisdiction, on complaint that goods or chattels exempt under section foui" of the Law of Distress Amendment Act, 1888, from distress for rent, have been taken und(>r such distress, may, by summary order, dii-ect that the goods and chattels so taken, if not sold, be restored ; or, if they have been sold, that such sum as the court may determine to be the value thereof shall be paid to the complainant by the person who levied the distress or du'ected it to be levied. 5. In any proceeding against any person for an offence under this Act such person shall be competent, but not compellable, to give evidence, and the wife of such jierson may be required to attend to give evidence as an ordinary witness in the case, and shall be competent, but not compellable, to give evidence. 6. This Act may be cited as the Law of Distress Amendment Act, 1895. I ( 941 ) APPENDIX B. PEECEDENTS OF LEASES, i^-C. Sect. page PkELIJIIXARY OCSERVATIOXS... 942| 1. Ajireement for Lease 943 2. Shorter form 944 3. Sub-lease of a Dwelling-house — In case of Fire, Lessor to re- build and rent to be suspended 945 4. Concise Agreement for letting Furnished House 946 5. Concise Agreement for letting Furnished Lodgings, with At- tendance, i^c 947 6. Letting of Furnished House for a few weeks 948 7. Sub-lease of a Shop unfurnished withFixtures — Lessor not to dis- train until he has paid his own Rent and produced the Receipt 949 8. Agreement for Sab-lease for 21 years determinable, &c. — Cove- nants as in Ground Lease — Option of Purchase 949 9. Outlines of Terms for letting Farm with reference to pre- vious Lease 950 10. Agreement for letting a Farm from year to year 950 11. Agreement for letting a Cottage from year to j^ear 953 12. Agreement for letting a Cottage on Tenancy at will, or from month to month, &c 954 13. Building Agreement 954 1 4. Concise Lease, pursuant to Leases Act, 1845, 8 & 9 Vict. c. 124... 956 15. Lease of a House, Tenant to pay Rates and 'J'axes, and to re- pair, paint, insure — Option for Tenant to purchase the Fee ... 957 16. Lease of aHouse by .Joint Tenants • — Power for Landlord to give orders to view jiremises to end of tenancy — Landlord to insure 960 17. Sub-lease subject to the Cove- nants and Conditions in origi- nal Lease 961 18. Agricultural Lease 963 19. Public House Lease 964 20. Lease by Tenant for Life, &c., pursuant to Settled Land Act. 965 21. Lease of Right of Shooting 966 22.) 23. -Parcels 967 24. Sect. page 25. Grant of Right of Road 967 26. Reservation of Roads 968 27. Reservation of Drains 968 28. Of Timber, Game, &c 968 29. Of Mines, &c 969 30. Of Timber and Minerals (concise Form) 969 31. Covenants not to Assign or I 969 32. Sublet I 970 33. Covenants for Notice of Assign- ments 970 34. Covenant to Insure 970 35. Covenant to produce Copies of Assignments 970 36. Proviso that Tenant may remove Fixtures 970 37. Proviso for Compensation for Tenant's Improvement of House 971 38. Proviso for inspection by intend- inir New Tenant during last 3 Months of Term 971 39. Proviso for Resumption of Land demised 971 40. Notice to take Land pursuant to above Proviso 972 41. Covejiant by Lessor for Renewal of Lease 972 42. Covenant by Lessor not to per- mit Nuisance in adjoining Houses 973 43. Covenant by Lessor to produce Title Deeds, &c 973 44. Agreement not to distrain 974 45. Proviso for Re-entr}' 974 46. Proviso for Re-entry — Compen- sation to Tenant for Improved Value 974 47. Arbitration Clause 974 48. Assignment of a lease (by In- dorsement) 974 49. The like (not by Indorsement)... 975 50. Licence to Assign 976 51. Surrender of Lease by Indenture (I n dorsed ) 977 52. By Deed Poll 977 53. Surrender of Lease by Indenture (not indorsed) 977 54. The like by Deed Poll 978 55. Renewal of Lease (indorsed) 978 56. Memorial of Lease 979 57. Memorial of Assignment 979 942 Appendix B. (preliminary observations) App. B. Conveyancing Act. *' Heirs, executors, assigns," kc, how included. Precedents in other Books. Preliminary Observations. In drawing and revising the following precedents, the Editor has endeavoured to frame precedents as fairly as possible for both parties, adding alternative forms in the customary manner. It is obvious that a lease wall vary greatly according as it is settled on behalf of the landlord or on behalf of the tenant, and the Editor is bound to point out that many of the precedents in use wear the appearance of leases settled on behalf of the landlord. The sections of the Conveyancing Act, 1881, which principally affect leases are these — ^y s. 2, sub-s. 5, the term " conveyance " in the Act {except in s. 7, respecting covenants for title) includes a lease by deed. B}' s. 6 (see ante, p. 152), certain " general words " are implied in all conveyances (and therefore in all leases by deed). By s. 7 in an assignment of a lease for value b}'' a person expressed to convey as beneficial owner there is an implied covenant that the lease assigned is valid. B}' ss. 10, 11, and 12 (see ante, p. 267), the rent and benefit and burden of covenants run with the reversion, and conditions are apportioned on severance of the reversion. By s. 13 (see ante, p. 2) on a contract to grant a lease the title to a leasehold reversion is not to be required. B}^ s. 14 (see ante, p, 349) elaborate provisions are made for pro- tecting the lessee against forfeiture. B}' s. 18 (see ante, p. 60) ample powers of leasing are conferred upon a mortgagor and mortgagee in possession. As to implied inclusion of heirs and assigns, or of executors, administrators and assigns, it is j)rovided by s. 58 of the Act as follows : — (1) A covenant relating to land of inheritance or devolving on the heir as special occupant shall be deemed to be made with the covenantee, his heirs and assigns, and shall have effect as if heirs and assigns were expressed. (2) A covenant relating to land not of inheritance or devolving on the heir as special occupant shall be deemed to be made with the covenantee, his executors, administrators, and assigns, and shall have effect as if executors, administrators, and assigns were expressed. (3) This section applies only to covenants made after the commencement of this Act. For more special precedents than those here collected, see the following works :■ — Bi/tlu'icood and JarniaiisVrecedents,, 4tli ed., 1886, b}' Bobbins, Vol. III., tit. "Leases." Davidson's Precedents, 3rd ed., 1876, Vol. V., Part I. Davidson's Concise Precedents, 16tli ed., 1894. Key and Elphinstone' s Precedents, 4th ed., 1897, Vol. I. Agreement for Lease. 943 Prideaux''s Precedents, 16tli ed., 1895, b}' Whitcombe and App. B. s. 1. Horsburgb, Vol. II. Sireefs Concise Precedents, 4th ed., 1886, by Tucker and Cave, pp. 434—537. Leli/ and Ed^icuinhes Agricultural Holdings, 2nd ed., 1885, App. I. Lely and Peck's " Precedents of Leases for Years and other Contracts of Tenancy and Contracts relating thereto, mainly selected or adapted from existing collections, with many additional Forms," 1889. Sect. 1. — Acjrcement for Lease of House. AoEEEiiENT made the day of , 18 — , Between A. B. of , in the coiiuty of (hereinafter called the landlord), of the one part, and C. D. of , in the [same] county (hereinafter called the tenant), of the other part; WITNESSETH, that [at any time after twenty-one days from the date hereof] the landlord agrees to grant and the tenant agrees to accept a lease of All. [describe housel, from the day of ["now last past," or "next," or "in the year 18 — "] for the term ((^) of years determinable as herein- after mentioned : At the yearly rent of £ , payable quarterly on the usual quarter days, without any deductions (except for propertj^tax), the first of such quarterly payments to be made on the day of ■ next. AxD subject to covenants by the tenant \_hert' state concistly the covenants as ayreed on, ex. gr.], to pay the said rent in manner aforesaid ; to pay all existing and future rates, taxes, and assessments ; to keep the said premises in good tenantable repair and condition (damage by fire and tenij^est only excepted) ; to paint all the outside wood and ironwork of or belonging to the said premises twice over in good oil colour and in a workmanlike manner in every [three] years of the said term, and the inside wood and ironwork in like manner in every [seven] years of the said term : and at the end or determination of the said term to leave the premises in good and tenantable repair [reasonable use and wear thereof, and damage by fire and tempest in the meantime only excepted]. The landlord and his agents and siu'veyors to have liberty to enter and view the said premises [twice or oftener] in every year of the said term. The tenant to keep the premises insured in the sum of £ at the least in the j oint names of the land- lord and tenant, and to produce the policies and receipts for premiums when required, and to expend all monies which may be received by virtue of any such insurance in rebuilding and reinstating the premises and to make good any deficiency : And not to convert the premises into a shop, or use the same for carrying on any trade or business : nor to assign or sub-let the premises or any part thereof (otherwise than by sub-letting furnished for six calendar months, or for any less term) without first obtaining on each occasion the licence in writing of the landlord. Provided always, and it is hereby exjaressly agreed that such licence shall be given free of charge, and not unreasonably withheld. The said lease also to contain the usual qualified covenant on the part of the landlord for quiet enjo^TQent. Also a power for re-entry on non-payment of any of the rent for [21] days (although no formal demand thereof shall have been made(Z)) ; or in case the tenant, his executors, administrators or assigns shall become bankrupt or on breach of any of the tenant's covenants. Also a proviso enabling the tenant [or either party] to determine the lease at the end of the first seven or fourteen years of the term on six months' previous notice in writing, and on pa^-ment by the tenant (if such notice be given by him) of all arrears of rent, to the end of such notice, and then quitting possession of the said premises. Date and Parties. Stamp (ft). Testatum. Parcels, &c. Reddendum. Lessee's Covenants. To pay Rent ; also Rates and Taxes. To Repair. To Paint. To leave in Rejiair. Power to Lessor to enter and view. Not to assign or sub -let without Licence. Covenant by Lessor for quiet enjoyment. Proviso for Re-entry. Proviso for determining Term at end of first Seven or Fourteen Years. {a) If the agreed term does not exceed 35 years, the agreement will require the same stamp as a lease. See s. 75 of the Stamp Act, 1891, p. 938, ante. {h) Or say (the same being lawfully demanded on any of the said days or at any time afterwards, and not paid when demanded). 944 Appendix B. (conveyancing precedents). App. B. s. 2. Power to rescind this agreement. Expenses. [Provided always, that if at any time within twenty-one days after date hereof the tenant shall signify in writing to the landlord his desire to rescind this agree- ment, and shall at the same time pay to the landlord the sum of ten poiinds, then and in such case this agreement shall cease to be binding on either party (c), the tenant to bear the cost of this agreement if he shall take advantage of this proviso, and one-half the said cost if he shall not.] Witness, (Signed) A. B. E. F.,of . CD. Parties and Premises. Stamp (d). Rent. Covenants by Tenant. Covenants by Landlord. Sect. 2. — Concise Agreement for u Lease. Agreement between A. B. \jiame in full of intended landlord'] oi and C. D. \name in full of intended tenanf], made this day of , 18 — , in which agreement the word "landlord" means the said A. B., his heirs and assigns, and the word " tenant " means the said C. D., his executors, adminis- trators and assigns. The landlord shall grant and the tenant shall accept a lease of All [describe jjarcelsl for 21 years, to commence from the day of , 18 — -, deteniiin- able at the end of the first 3, 7, or 14 years, at the option of the tenant, to be signified by not less than six calendar months' notice in writing to the landlord at the yearly rent of £ , clear of all existing and futme rates, taxes, and assessments. The said net rent shall be paid half-yearly, on the day of , and on the day of , the first of such half-vearly pajnnents to be made on the day of ,18—. The lease shall contain the following covenants by the tenant : — To pay net rent as aforesaid ; To pay rates and taxes ; To keep the jiremises with the fixtures [set forth in the schedule hereto] in good repair, damage by fire, tempest or external explosion excepted. And to paint with two coats of good oils the inside woodwork and ironwork every 7 yeai'S, and the outside woodwork and ii'onwoi'k every 3 years, And to allow the landlord to enter four times a year to view the state of repair, And to yield up the premises with the said fixtures in good rei)air at the end of the terai (reasonable wear and tear and such damage as aforesaid excepted). To use the premises as a ])rivato dwelling-house only. Xot to assign or sub-let the jiremises without the written consent of the landlord [provided always, and it is hereby expressly agreed that such consent shall be granted free of charge, and not be unreasonably withheld](e). The lease shall contain the following covenants by the landlord : — The usual qualified covenant for quiet enjoyment ; A covenant to insure and keep insured the premises against fire to the amount of £ at the least. And to rebuild within 6 months in case offire(/). The lease shall contain the following provisoes: — • A proviso for re-entry by the landlord in any of the following cases — On non-payment of rent within 2.S days after demand in wi'iting thereof; On the tenant bi^coming bankrupt ; On [here add other events, if any, to which it is intended that an ahsolvtc proviso for re-entry shall iipply]- And it is further agreed that the landloid shall forthwith put the premises into comjjleto tenantable repair, [iir shall forthwith execute upon the premises the works, repair's, and decorations si:iecified in the schedule hereto.] The Schedule above referred to. [Here specifi/ the repairs, &c., to he execided.'] (Signed) (c) As to this proviso, see p. 92, ante. (rf) See Sect. 1, note («), supra. (c) See Trcloar v. Bigge, L. R., 9 Ex. 151, and 697, ante. For other forms, see Sects. 34, 35, post, and as to pecimiary consideration for licence, see p. 695, ante. A. B. CD. (/) This is imusual, tlie tenant insuring in most cases. But it may save trouble that the landlord .should insure. The premium can be added to the rent if desired. Agreement for Sub-lease. 945 Sect. 3. — Suh-Iease of a House for 3 years or less. AGIlEEME^^T made tlie day of , 18 — , Between A. B. of &c., of the one part, and C. D. of &c., of the other part; The said A. B. lets, and the said C. l). takes, All [describe parcels, ex. gr., that messuage or dwelling-house situate and being No. 22, Harp Lane, Great Tower Street, in the city of London]. With the use of the fixtures belonging to the said A. B. now or at any time hereafter during the said term in or upon the said premises [the inincipal articles whereof are mentioned in the schedule hereunder written] ; For the term of years from the • day of last past {g) ; At the clear yearly rent of £ , jiayable by equal quarterly j^ayments, on the foiu" usual quarter days, the first of such quarterly payments to be made on the day of next. AxD the said C. D. hereby agrees to paj' the said rent at the times and in manner hereinbefore mentioned [with interest at the rent of 5/. per cent, on any of the rent when in arrear for more than one calendar month, calculated from the day it became due to the time of payment (/<)] : Also, to pay land tax, sewers rates, and all other rates, taxes, and impositions of every description in respect of the said premises during the said tenancy (landlord's property tax only excepted) ; Also, to paint, paper, and whitewash the said premises when, where and as often as shall be i-easonably necessary, and to keep the said premises in good tenantable repair, order and condition (damage by fire, tempest, explosion of gas or gunpowder, war or riot always exceiited) ; But if such premises or any part thereof shall be destroyed or damaged hj fire, tempest, exi^losion of gas or gunpowder, war or riot, in any of such cases the said C. D. shall not be liable to pay any rent whatever (except arrears previously due) luitil the said A. B., his executors, administrators, or assigns shall have caused such premises to be repaired or rebuilt, as the case may require ; and then only a fair and just proijortion of the rent during such repairs or rebuilding, the amount thereof to be settled by mutual consent, or by an arbitrator to be mutualty agreed on, or to be appointed pursuant to the Arbitration Act, 1889, and to be paid one week next after the amount thereof shall be so settled as aforesaid (/), the costs of any such reference and award to be in the discretion of the arbitrator (/.■), who shall direct by whom and to whom the same shall be paid and shall in other respects have all the usual powers of an arbitrator, and whose award and decision shall be final. [The exceptions hereinbefore contained not to be apjdicable to any case in which there shall have been negligence or wilful default on the part of the said C. D., his assigns or agents, or any of his family.] The said C. I), not to carry on or i^ermit to be carried on upon the said premises or any part thereof, any trade or business, but to use the premises hereby demised as and for a private dwelling-house only, nor to do or suffer or omit any act or thing whatsoever whereby or in consequence whereof the lease under which the said premises are now held, bearing date the • day of , 18 — , and made or expressed to be made between E. P. therein described of the one part, and the said A. B. of the other part, may be forfeited or become void- able : And the said C. D. at the end of the said tenancy, to leave, surrender and deliver up to the said A. B., his executors, administrators, or assigns, all the said premises, together with all the fixtures which now are, or wbich at any time hereafter during the said tenancy may be fixed or set i;p by the said A. B., in good condition (fair wear and tear thereof and damage by fire excepted), [here specify anything specially agreed to le done by the tenant on the expiration of the tenancy, ex.gr., the partitions dividing the attic story into four rooms, and the raised floor taken down by the said C. D., to be refixed and made good in a Apj'. B. s. 3. Date and Parties. Stami.. Parcels. General Words, Fixtures. Reddendum. Covenants by Lessee. To pay Rent. And interest on Arrears. Rates and Taxes. To paint, &c. To repair. Cesser of Rent in case of Fire until, &o. Against Trades. Not to avoid original Lease. To surrender at end of Term. With Fixtures. Other tilings to be done by Tenant at end of Term. [y) Or say " from tlie dny of [last or next] , to the day of 18 ." If the term be for more than 3 years, a deed is necessarv, bv virtue of 8 & 9 Vict. c. 106, s. 3, aiite, 135. {h) See form of such covenant, post, p. 9.58. (i) This will eflectually prevent any action being brouglit before the amount has been so ascertained ; Avery v. Scott, 8 Exch. 487 ; 5 H. L. Cas. 811. Without L.T. such a stipulation the landlord miglit sue for all the rent, and leave the tenant to pay into court a sufficient sum at liis peril ; Bennett v. Ireland, E., B. & E. 326 ; 28 L. J., Q. B. 48. (k) With a view to costs, &c., the arbi- trator should, at the commencement of the inquiry, ascertain how nuich the tenant ofiered to pay , and how much the landlord was willing to accept. 60 946 Appendix B. (conveyancing pkecedents). App. B. s. 3. Proviso for Ee-entiy. Certain Repairs to bo forthwith done by Landlord. Otherwise, &c. IJroper and workmanlike manner at or before the end of the tenancy] : Provided always [Jiere insert pro nso for re-entry, see p. 959:] \_If the landlord is to do any repairs or alterations here specify them, ex. (//-.] : The said A. B. shall, within [twenty- eight] days from the date of this agreement, make good and support the floor of the warehouse of the said premises, and repair and make good the frame and glass of the skylight, and fix the present partition of the same ware- house, or as the same may he agreed on {I), otherwise the said C. D. shall be entitled, within [seven] days after the expiration of the said [twenty-eight] days to quit possession of the said demised premises, and determine and make void these presents by a notice in writing signed by him, and delivered to the said A. B., or left for him at \_state his place of residence'] aforesaid, without pa^dng any rent or other compensation in respect thereof. As witness the hands of the said parties. Witness, (Signed) A. B. J. K, of [&c.] C. D. The [First] Schedule referred to in the above written agreement. [Here specify the fixtures. '\ The [Second] Schedule referred to in the above wi-itten agreement. [Here specify the repairs agreed to he done.'] Witness, (Signed) A. B. J. K. C. D. Sect. 4. — Concise Agreement for letting a Furnished House (?n). Stamp ()(). Agreement made the day of , 18 — , Between A. B. of &c. (herein- after called the landlord), of the one part, and C. D. of &c. (hereinafter called the tenant), of the other part ; The landlord lots, and the tenant takes. All that furnished dwelling-house [descrihe it], with the fixtiu'es and appiutenances ; Together with the furnitiu-e and eft'ects mentioned in the schedule to these presents ; For the term of [weeks or calendar months], to be computed from the day of — — [instant or next] ; At the rents of £ [per week or calendar month] for the jiremises and of £ for the furniture respectively, .such rents to bo jjayable, [state wlien pjuyahle as agreed, ex. gr., on Saturday in • each week, or on the fifleodh daj' of each month, or at the end of the said tenancy, or payable from month to month in advance on the day of each month, and to be suspended or reduced in case of damage by fire until such . damage be repaired by the landlord] : The tenant agrees at the end of his tenancy to leave the demised premises, including the said fixtures, appur- tenances, furnitiu'e and effects in as good state, condition and repair as they now are, reasonable wear and tear and damage by fire or tempest excepted : The landlord agrees to paj' all rates and taxes of every description (except the gas rate, which shall be paid by the tenant in accordance with his consumption of gas, and shall be apportioned if necessary), and to do all necessary repairs when ret^uired during the said tenancj' ; also to indemnify the tenant against all ground and other rent-charges, and incumbrances (if any) affecting the said premises, and from all distresses, claims and demands in respect thereof (o). As witness the hands of the said jiarties. The Schedule ahove referred to. [Here specify the furniture, &c. Be par- iicular to mention every crack or other defect.] The following windows wei'e cracked at the date of the above agreement, viz. [here specify each cracked tuindow], (Signed) A. B. Witness, 0. D. E. ¥., of [&c.] {I) If the repiiirs and alterations are jnimerons, saj' "do all the rejiairs, altera- tions and improvements mentioned in the .schedule to these presents ;" and at the «nd add a schedule, specifying the work to be done. (»i) There is an implied warranty by landlord of fitness for occupation ; Wilson v. Fincli-Eatton, L. R., 2 Ex. D. 336; ante, 184. (h) 2s. M. if rent more than 2^1. See Stamp Act, 1891, s. 78, and sched., tit, "Lease," ante, App. A. (o) Here insert any special clauses with regard to use of horses and carriages, garden produce, &c., [e.g., "And it is hereby agreed that the tenant shall have all the produce of the garden as it becomes ripe, the gardener's wages being paid by the landlord."] Letting of Furnished Lodgings. 947 Sect. 5. — Concise Agreement for letting Furnished Lodgings, with App, B. s. 5. Attendance, &c. Agreement made the day of , 18 — , Between" A. B. of &c. (iierein- stamp (p). after called tlie landlord), of tlie one part, and 0. 1). of &c. (hereinafter called the tenant), of the other part; The landlord hereby agrees to let, and the tenant agrees to take, Ael those the rooms or apartments following, (that is to say) [describe the rooms, ex. gr., the front parlour, and the back bed-room on the second floor, and the small coal-cellar in the front area,] being parts of the house and premises of the landlord, situate at aforesaid. Together T\'ith all easements and appurtenances [including gas-light, which is to be supplied by the landlord] ; And also the furniture, goods, chattels and effects in the said rooms or apartments, [the principal articles whereof are mentioned in the schedule to these presents] {q) ; And also such attendance as hereinafter mentioned ; To hold from the day of , from week to week [or from month to month], determinable by either party upon giving to the other [one week's or one calendar month's] previous notice in writing to quit, ending on [any Saturdai/, or on the day of any month], half such notice to be sufficient if given during the first [week or month] ; At the rent of £ • per week, pay- able on [Saturday] in each week during the said tenancy; [or at the rent of £ per calendar month, payable on the day of each month during the said tenancy] ; The tenant, at the end of his tenancy, to leave the said demised premises, together with the said furniture, goods, chattels and effects, in as good state, condition and repair as they now are, reasonable wear and tear and damage by fire and tempest excepted ; The landlord agrees to pay all rates and taxes of ■every description : The landlord agrees to do all nec9ssary repairs when required by tile tenant ; also to indemnify the tenant against all ground and other rent which is or may become due or payable to any superior landlord of the said premises during the said tenancy, and from all distresses, claims and demands in respect thereof : The landlord also agrees to find and provide the tenant with, the attendance of a respectable female servant, and with all other necessary and proper attendance, including cooking and boot and shoe cleaning ; also to find and provide him with proper and sufficient plate, linen, china, knives, silver or electro -plated forks and spoons, and other necessary household things, to enable him to reside comfortabl}' in the said rooms or apartments during the said tenancy ; The landlord not to do or suffer to be done anything in the said house of a noisy, noxious or offensive nature during the said tenancy : Pro- tided that if at any time during the said tenancy the tenant shall be annoyed, vexed or disturbed by anything of a noisy, noxious or offensive natirre, contrary to the stipulations in that behalf above contained ; or if the tenant shall find or discover anything that may give him reasonable cause to believe that there is any embarrassment on the part of the landlord, or any danger of a distress for rent, rates or taxes, or of an execution against the goods of the landlord, then and in any such case it shall be lawful for the tenant by notice in writing forthwith to determine the tenancy hereby created, and to quit possession of the said rooms or apartments without giving any i^revious notice to quit, anything hereinbefore contained to the contrary in anywise notwith- standing ; and thereupon the tenant shall be liable to pay rent pro rata to the time of quitting ; Provided nevertheless that the tenant shall not hereby be deprived of any of the protection afforded by the Lodgers' Goods Protection Act, 1871. As WITNESS the hands of the said parties. The Schedule above referred to. [Here specify the furniture, &c. _ Be par- ticular to mention every crack or other defect, also to mention the cracked windoius.'] (p) 2s. Qd. if rent more than 2U. See {q) The schedule of furniture, &c. moy Stamp Act, 1891, s. 78, and sched., tit. be omitted, if preferred. " Lease," ante, App. A. 60—2 948 Appendix B. (conveyancing precedents). App. B. s. 6 Sect. 6. — Lettinfj of Fiimished House far a few weeks. Agreement made this day of , 18 — , Between A. B. of ,. (hereinafter called the landladj-) of the one part, and C. D. of (hereinafter called the tenant) of the other part ; Whereby the said landlady agrees to let^ and the said tenant agrees to take and hire, All that house, garden, and pre- mises situate and known as -, [except the box-room, which is hereby reserved to the said landlady for storage purposes], as the same are now in her occupa- tion ; Together with the use of the furniture and jsiano, and of sufficient glass, crockery, kitchen utensils, and other effects, (but not including the use of plate- and linen) in and upon the said house and premises more particularly described in an inventory referring thereto, and forming part of this agreement, for a term of weeks, to commence from the day of next, until the day of • next, at the clear rent or sum of per week, payable- as follows : The sum of pounds, • ■ shillings on the day of next ; and the further sum of pounds, ■ shillings on the day of next, the expiration of the said tenancy, the said rent to cease and the tenant to have the option of quitting in case of substantial damage by accidental fire, storm, or tempest ; TuE said tenant hereby also agrees to pay the rent in manner aforesaid, to use the said house and premises for private occupatiort only, and at the expiration of the said tenancy to quit and deliver up quiet and peaceable possession of the same, together with the said furniture and effects, clean and in as good order, and condition, and in the same place and position as- the same shall be in at the commencement of the tenancy, reasonable use, wear, tear, and accidental damage by fire, storm or tempest onlj' excepted. And to- replace with others of a similar quality, pattern, or value, or pay for the same, at his option, all such articles of the said furniture and effects as shall be found to be missing, damaged, or destroyed during the said tenancy, and if any dispute shall arise the same shall be referred to and settled by two valuers or their umpire in the usual manner. The said tenant also further agrees not ta assign, underlet, lend, or otherwise part with the jjossession of the whole or any portion of the said house and premises, except to a respectable person giving^ two references in the usual manner ; and not to remove, or cause or suffer to be removed, the whole or any portion of the said furnitiu'O and effects ; The said landlady further agrees to forward to the tenant the aforesaid inventory within a fortnight from the date of this agreement, and to pay the unfurnished rent^ and all rates, taxes, and impositions that may become due in respect of the said premises during the said tenancy (except the charge for gas consumed on the s:iid premises during the said term, which the said tenant hereby agrees to pay), and to keep and maintain the walls, roof, and main timbers of the said i)remise8 in good condition, and if required in writing by the tenant to make good, with all convenient dispatch, any damage occurring through accident, by fire, storm, or tempest, and to pay all expenses of and incident to this agi'eenient and inventory; And it is hereby further agreed, that should the said tenant be desirous of continuing the occupation of the said premises after the expiration of the tenancy hereby created, he may do so for a further period of weeks at the rent of £ s. per week, on giving seven days' previous notice in writing to the said landlady or her agent of his intention so to do ; Provided ALWAYS, and it is hereby mutually agreed, that if the said rent, or any part- thereof shall remain due and unpaid for the space of seven days after either of the days on which the same shall become due and payable by virtue of this agreement, or in case of the breach or non-observance on the part of the said tenant of any of the conditions or stipulations hereinbefore referred to, then and in such case it shall be lawful for the said landlady or her duly authorized agents into and upon the said premises to re-enter, and thereout remove the said tenant, or any person or persons therein, without the necessity of bringing an action of ejectment, or taking any proceedings at law tor the recovery of such ])ossession, this right to be, nevertheless, without jirejudice to anj' remedy for enforcing payment of any rent then or thereafter due in respect of the said premises. As wiiXESS the hands of the said parties the day and year first above written. "Witness, (Signed^l A. B. E.F., of[&c.] ' CD. Letting of Shop — Sub-lease of House. 949 Sect. 7. — Suh-tenancy from, year to year of a Shop and Booms unfurnished, ivith App. B. s. 7. the Fixtures therein — Landlordito pay all Bates and Taxes — Proviso that the la)idlord shall heep upi a subsistiny Policy of Insurance {r). Ageeemext made'this day of , 18 — , Bet-w^eex A. B. of [&c.] (hereinafter called the landlord) of the one part, and C. D. of [&c.] (here- inafter called the tenant) of the other part ; The landlord hereby lets, and the tenant takes the shop and rooms following, that is to say [two rooms on the ground floor, and the shop at the back thereof, and also two rooms on the second floor, and the back kitchen and small coal-cellar, with the use of the yard and other conveniences, and the appurtenances thereto belonging, and also the fixtm-es in the said shoj) and rooms,] being part of a house and premises situate and being [Xo. 67, Seymour Street, Euston Square aforesaid], now in the occu- pation of the landlord from the daj- of [instant or last, or next], from year to year (s) ; At the yearly rent of £ sterling, payable by equal quarterly payments, on the day of , the day of , the • day of , and the day of ■, the first quarterly payment to be made on the day of • next ; And the landlord hereby agrees to pay all rates, taxes, and assessments, which now are or shall at any time during the continuance of the said tenancy be assessed or imposed upon the said premises, or upon the occupier in respect thereof; AxD further to pay all premiums at any time due in respect of the now subsisting or any futui'e policy of insurance of the said premises and whenever required to produce to the tenant such policy or policies, and the receipt for the last premium thereof ; AxD further in case of destruction of or damage to the said premises by fire with all convenient speed to lay out all moneys received in respect of such insurance in rebuilding or restoring the premises, and to make good any deficiency ; AxD it is further agreed that when the tenant shall quit the said premises he shall leave them in as good condition and repair as they now are in, reasonable wear and tear and damage by fire and tempest only excepted. As witness the hands of the said parties. Witness, (Signed) A. B. E. F., of [&c.] 0. D. Date aud Parties. Parcels. Fixtures. Reddendum. Lessor to pay all Rates and Taxes. Repairs. Proviso against Rent to superior ] landlord. Sect. 8. — Agreement for Sub-lease of House for Twenty-one Tears, determinable, &c. — Covenants as in Ground Lease — Lessee to have the Option of purchasing within two Years on certain Terms{f). Head of proposed lease from A. B. to C. D. of No. 24, Gardens, Maida Parties Hill, Paddington, in the county of Middlesex, with the actual and reputed Premises. rights, members, easements and appurtenances (except [Jiere state any exception or reservation to the landlord']) : Term twenty-one years from the 29th Sep- Term. tember, 18 — , determinable by [either party] at the end of the first seven or stamp («). foui'teen j-ears, upon twelve calendar months' previous notice in writing, and upon payment by lessee, his executors, administrators or assigns (if such notice be given by him or them) of all rent and arrears of rent to the expiration of the notice, and then giving up possession. Eent 200/. per annum [for the first Rent. seven years, and 220/. per annum afterwards during the remainder of the term], payable by equal quarterly payments on the usual days, the first payment to be made on the 2oth day of December next [and to be suspended in case of damage by fii-e, or explosion not caused or contributed to by the lessee, or tempest, &c.]. Lessee to pay the land tax (if any, sewers rates and all other Rates and rates, taxes and impositions whatsoever (except proj^erty tax). Covenants by Taxes. iessee to perform and observe all the covenants and conditions in the lease from Covenants. [the Bishop of London and liis trustees to the said A. B.] dated the day of , 18 — , so far as they are applicable to the jn^emises hereby agreed to be demised, excej)t the covenant to pay the rent reserved in and by such lease (?•) This form is taken (wiLh variations) from Giles v. Spencer, 3 0. B., jST. S. 244. It is more favourable for the tenant than nsual. (s) This tenancy may be determined by the usual notice to quit at the end of the first or any sulisequent j'ear thereof. {t) This form is taken (with variations) fi-om Tildcsley v. Clarkson, 31 L. J., Oh. 362 ; 30 Beav. 419. {u) Same as on lease for same term. 950 Appendix B. (conveyancing precedents). App. B. s. 8. Lessor to complete Premises before [15th] September next : otherwise, &c. Lease and Counterpart and Expense thereof. Option of Purchase. Date. [licre state (iny other exception^. Tlie lessor, at his own expense, to furnish and complete the jiremises in a proper and workmanlike manner, and to put them into good tenantable rej^air, order and condition in every respect fit for an incoming tenant, before the [loth day of September next (.t)], otherwise the- lessee to have the option of cancelling this agreement on or after that day and before the [29th day of September aforesaid], upon giving notice in writing under his hand to the lessor, or leaving such notice for him at his last known place of abode, or at No. 24, Gardens aforesaid. The lease and a counterpart thereof to be prepared by the lessor's solicitor at the lessee's- expense, and to contain a clause giving the lessee, his executors, adminis- trators and assigns the option of purchasing within two years from 29thi September, IS- — , the then residue of the lessoi''s term, for the sum of 3,300/. sterling, and 20/. per annum rent jiayable by equal [half-yearly] payments on the day of and the day of , with power to distrain for the same and to disi^ose of such disti'ess as for rent-service. Upon any such pur- chase no proof of the lessor's title is to be required. Such lease and counterpart to be executed and possession of the premises given on or before the 29th day of September, 18 — . Dated this day of , 18 — . Witness, (Signed) A. B. E. P.,of[&c.] CD. Sect. 9. — Concise outline of Agreement for lease of a Farm, ivitli reference to re previous Lease [y). Stamp. Teems for the lease of a faim at , containing [liere describe the land ttr.]; term twelve years and a half from Lady-day last; rent 350/. to be paid quarterly ; landlord to pay the tithe rent-charge and drainage taxes ; tenant to pay all other rates, taxes, and assessments whatsoever (except jiroperty tax) ; landlord to put buildings, gates and posts in repair, and tenant afterwards to keep them in repair, being allowed rough timber ; tenant to pay for the muck and straw upon the farm^ by valuation ; all the other covenants and conditions- to be the same as in the lease under which J. H. B. now holds the said farm, including a power of re-entry by the landlord on non-iiayment of rent or breach, of covenant by the tenant ; Landlord to allow tenant 25/. of the first half-year's rent : [Tenant to pay all expenses of this agreement and of the lease and counterpart] (z). We agi'ee to the above conditions this daj- of , 18 — . (Signed) Egbert Brown, xVgent to William Smith, esqmre. JoiLN Jones. Sect. 10. — Agreement for letting a Form from Year to Year. Parties. AGREEMENT made the day of , 18 — , BETWEEN A. B. of, &c. (herein- Stanip. after called the landlord) of the one part, and C. D. of, &c. (hereinafter called Demise. the tenant) of the other part. The landlord lets and the tenant takes the Parcels. dwelling-house, farm and farm buildings, cottages and appurtenances situate Term. [/«ere describe the premises^ (a) forthe tenn of one year commencing at Michaelmas next, and afterwards from year to year, but deteiToinable at the end of the first or of any other year by either party giving to the other one year's wiitten notice to quit \_or six mouths' written notice to qtiit (/)),* for the ptu'pose of (x) See Tidcrj v. 3ToUclt, 16 C. B., N. S. 298 ; 33 L. J., C. P. 235. {y) This form is token (with variations) from CoUcn v. JVrUjht, 7 E. & B. 301 ; 8 Id. 647 ; where it was held that the defen- dant, by his signature in the above form, inii)liedly promised that he had sutficient authority to sign. (c) See ante, 206, 9U. (a) It will often be found convenient t» give the particulars of the premises in a schedule. (b) The words between a.sterisks though surplusage (see ante, p. 361), may perhaps as well be inserted, if the six montlis* notice be desired, for the sake of greater clearness. Agreement for Letting a Farm from Year to Year. 951 wMch. notice tlie 33rd section of the Agiicultural Holdings Act, 18S3, shall not apply to this agreement*] at the yearly rent of £ clear of all tithe rent- charge and other deductions (except land tax and landlord's proj^erty tax), payable qviarterly on the usual quarter days in each year, the first payment to be made on the 25th of December next ; and at the additional rent of £ for every acre, and so in jH-oportion for any greater or less quantity than an acre of sward or permanent pasture or meadow land wliich, during the said tenancy, shall be cropped, tilled or cultivated contrary to the agreement hereinafter contained without the consent in writing of the landlord or his agent, and such additional rent to be paid quarterly on the days aforesaid, the first jiayment thereof in each case to become due and to be made on such of those quarter days as shall hajjpen next after such cropping or cultivation as aforesaid, and to continue payable on each succeeding quarter day dui'ing the tenancy. And it is fiu-ther agreed as follows : — All game, wild fowl, rabbits and fish (subject only to the concurrent rights of the tenant imder the Groimd Game Act, 1880) are excepted and reserved to the landlord with the exclusive right of hunting, coursing, shooting, fishing and sporting (subject only as aforesaid) ; and also all timber and other trees, pollards and saplings, and all mines and minerals with full liberty of access to the landlord's agents and all persons authorized by him to cut, lop, quarry, work, and carry away the same respectively. The landlord paying to the tenant reasonable compensation for damage done to his growing crops in so doing ; and also full liberty of access as afoi'csaid to the premises to view the state of repair of the buildings, gates and fences, and the management and cultivation of the land, and for any other reasonable purpose. And the tenant agrees as follows : — To pay the said yearly rent of £ and (if the same shall become payable) the said additional rent on the days and in manner aforesaid, and to j^ay all tithe rent -charge and all existing and futiu-e taxes, rates, assessments and outgoings whatsoever (excejit as aforesaid) ; and personally to reside in the said dwelling-house, and not to assign, underlet or jiart with jiossession of the premises or any part thereof excejit the cottages (which may be let to weekly tenants) without the consent in writing of the landlord or his agent ; and to keep, and at the end or sooner deteiTuination of the tenancy to leave, in thorough repair and order the said dwelling-house and cottages with all fixtures and additions thereto respectively, and all buildings for the time being on the said jn'emises (except the main timbers, tiled roofs and outside walls of the said dwelling-house, cottages and buildings), and also the thatched roofs, roads, doors, gates, stiles, fences, walls, rails, bars, culverts, gutters, ditches, drains, pumps, ponds, wells, banks, dams, floodgates, and bridges, and to do at all times what may be necessary to allow the surface-water to flow off ; and to paint all the outside wood and iron work in and upon the premises hitherto or usually painted with two coats of the best oil paint when necessary, and at least in everj- foiu'th year of the tenancy, and to tar and varnish all other wood and ii'on work, hitherto or usually tarred or varnished. \_If the tenant is to insure, insert, To insui-e the said messuage and cottages and all buildings for the time being on the said i^remises, &c.] To cultivate the farm according to the best system of husbandry [and particularly the arable land on the four-coui'se system, and not to have white straw crops in any two successive years]. To clean the land and keep it clean ; not to cross crop the land ; not to grow for seed, tares, mustard, rape or turnips or any unusual or exhausting crop excejit for his own use, and then not upon the whole to a greater extent than one acre without the written consent of the landlord or his agent, and [liere insert (an/ special stipulations as to crapping']. To consume or use upon the premises all artificial as well as meadow hay, clover, root, and green crops, straw, haulm and chaff, and the muck, dung, and manure into which the same shall be converted, and not to clean off the farm or sell the same respectivelj- under a penalty of 20/. for every ton so di-awn off or sold at any time. 'I'o piu'chase and lay out on the farm every year such lime, muck and other manure as shall be requisite for the proper cviltivation thereof. [Here insert umj other stipulations as to cultivation and management.'] To permit the landlord and all persons authorized by him at all reasonable times during the tenancy to have access to the premises to view the state of App. B. s. 10. Rents. Exceptions'and Reservations. Agreements by Tenant. To pay Rent and Taxes. To reside and not to assign or underlet. To repair Insurance. Cultivation and ilanageuient. Crops. To consume Hay &c., on the Premises. To purcliase Lime, &c. To permit Landlord to view Premises. 952 Appendix B. (conveyancing precedents). App. b. s. 10. To preserve Game. To prevent Trespass. Not to cut Timber, &c. Not to break up Pasture. Not to depasture. Agreements by- Landlord. Quiet enjoy- ment. To pay Land Tax, &c. To repair main Timbers, &c. To supply Materials for Repairs. Exclusion of Custom. Power of Re-entiy. Sale of Crops on distraint. repair of the buildings, gates and fences, and the cultivation and management of the farm, and for any other reasonable ptu'pose. To preserve all game, and the eggs and young of game, wild fowl and fish for the landlord and all persons authorized by him, subject only to the exercise by the tenant of his concurrent rights as aforesaid. To permit the landlord to bring actions or take any legal proceedings against trespassers or poachers in the tenant's name, to lay information and give evidence (he being indemnified by the landlord), and to sign and serve if required notices to trespassers and others to keep off the fami. Not to cause or suffer roads, footpaths or ways to be made over any part of the premises. Not to cut, lop or prune any timber or other trees or saplings. To jH-eserve and protect the fruit trees and to replace with young trees of the best quality any that may perish through decay or accident, and to have as well those now growing as any hereafter to be planted in good order and condition. To cut the underwood in regular seasons, none to be cut of less than twelve seasons' growth. To keej) in order, make and plash the hedges, none to be cut of less than six years' growth. To plant quicksets or hornbeam in the gaps or decayed places in the hedges, to weed and cleanse and jirotect the same from cattle. To scour and cleanse the ditches as often as necessary, and to cut and destroy at lea.st once in every year the weeds and rubbish growing on all the banks, hedges, ditches and wastes. Not to take or suffer to be taken any earth, clay soil, peat, marl, stone, minerals or gravel from the siirface of the land without the consent in writing of the landlord or his agent. Not to plough or break up any sward or permanent pasture or meadow land. Not to depasture any agistment stock of any kind upon the said farm in the last year of the tenancy under a jienalty of lOl. for every head of live stock that shall be so depastured thereon. [Here iiiacrt (iitij other itroliihitiuns.'] And the landlord agrees in manner following : — To permit the tenant pajnng the several rents or sums hereinbefore reserved or made i)ayable, and perfonnmg and observing the several agreements on his part therein contained ; peaceably to possess and enjoy the said premises during the tenancy without any inteiTuption or disturbance by the landlord or any jjerson claiming under him. To pay all land tax and landlord's property tax [and tithe rents -charge], payable in respect of the said premises. To kee]) in good and substantial repair" and order the main timbers, tiled roofs and outside walls of the said dwelling-house, cottages and all buildings for the time being on the said premises, the tenant giving timely notice that such repair has become necessary. To supi)ly to the tenant on demand for all repairs to be executed by him, bricks, tiles, slates, lime and rough timber (or at the landlord's option timber in scantling and feather-edged boards) to be used by the tenant in a proper and tradesniiuilike manner ; and the cartage of the same to a distance not exceeding six miles from the said premises to be performed by the tenant gratis. And it is further agi'eed as follows : — No customs of the country shall have any operation upon this contract of tenancy ; and the right of the tenant to allowances at the end of the tenancy shall depend only upon such contract and the Agricultural Holdings Act, 1883. If and whenever the said yearly rent of £ or the additional rent or any part thereof respectively'' shall be m arrear for days, whether legally demanded or not, or if and whenever there shall be a breach of any of the tenant's agreements herein contained, or if the tenant shall become bankrupt, or make any composition with his creditors, or suffer executicm upon his goods, then and in any of the said cases it shall be lawful for the landlord to enter upon any part of the premises in the name of the whole, and thereupon the tenancy shall detennine. In case the landlord shall distrain for rent it shall be lawful for him to sell by auction or otherwise all hay, straw, and other fodder, crops, corn or roots taken under such distress, and the same may be consumed (if the landlord so wishes) on any part of the said farm, and the cattle or stock of any purchaser f)f the said haj', straw, and other fodder, crops, corn or roots, may be put to consume the Agreement for Letting a Farm from Year to Year. 953 stipulations as to rights of Parties at end of Tenancy. same on the said fami for so long a period as the landlord may deem necessary App. B. s. 10. without any liability on the part of such purchaser, and without his being ' deemed a trespasser. The landlord {or incoming tenant) at the end of the tenancy shall take at a valuation all the Lent corn and other straw, chaff and fodder, and artificial as "well as meadow hay of the last year's crop, which shall not have been consumed before the end of the tenancy at consuming prices, and also all wheat straw of the crop which shall not have been consumed at the end of the tenancy at full price, with a deduction of s. per load upon the said wheat straw. But all the said straw, fodder, chaff, hay, and wheat straw shall be delivered up to the landlord {or incoming tenant) dry and in good condition, placed under cover in the homestall or thatched and secured from the weather, and the wheat straw to be in addition trussed and tied by the tenant, he being paid for the trussing, tying and thatching. The tenant is to quit the farm, house, cottages and 23remises at Michaelmas day, and to have the use of the barns and rick-yards if necessary, or as much thereof as may be necessary, but no more, to thresh and market his crop of corn of the last year, and stabling for horses to carry out his corn if required, and accommodation for one man to tend the horses up to the 25th of December after the end of the tenancy. [If any question or dispute (other than one the settlement of which is provided for by the Agricultural Holdings Act, 1S83) shall arise between the landlord and tenant as to these conditions, or any matter or thing connected with them, or with the occupation of the farm, such matter in difference shall Tje referred to two arbitrators and their umpire in accordance and confonnity with the provisions contained in the Arbitration Act. 1SS9, or any then existing statutory modification thereof; and if at the end of the tenancy there shall be, in addition to the reference to ascertain the matters hereinbefore particularly mentioned for valuation, a reference under the provisions of the Agricultural Holdings Act, 1883. to two referees appointed respectively by the landlord and tenant, the landlord and tenant shall each (excej^t in any case where it may be impracticable so to do) appoint the same referee for both references ; and so far as the landlord and tenant can control the appointment of an umpire, the same jierson shall be appointed to act as umpire in both references.] The word ''landlord" shall include his heirs and assigns, and the word *' tenant" shall include his executors, administrators, and assigns. As witness, &c. Arbitration. Clause. InteiiDretation Clause. Sect. 11. — Agreement for letting a Cottage from Year to Year. ActKEEment made the day of - — •, 18 — , Between A. B. of, «S:c. (hereinafter called the landlord) of the one part, and C. D. of, &c. (hereinafter called the tenant) of the other part. 1. The landlord hereby lets and the tenant hereby takes all that cottage situate in the parish of in the county of , formerly in the occupation of , together with the garden and apjDurtenances thereto belonging, which premises are described in the schedule hereto [for the term of one year from the day of , 18 — , and afterwards from year to year at the yearly Tent of £ payable quaiterly on the usual quarter days in each year, the first pajTnent to be made on the day of next, and the last payment to be made in advance one calendar month before the exj^iration of the tenancy. The said rent to be paid clear of all deductions excei^t for land tax and property tax]. 2. The tenant agrees to pay the said rent on the days and in manner afore- said, and also all existing or futiire taxes, rates, assessments and outgoings of every description (except as aforesaid) for the time being payable by the tenant in respect of the premises. 3. The tenant to whitewash the cottage when required, and to keep all cesspools and drains well cleansed, and to keep the premises (including fixtures but except the roof and outside walls) in good and tenantable repair reasonable wear and tear excepted. 4. The tenant to cultivate the garden [and orchard] in a proper manner [and to pi-une and jjreserve all fruit trees, and to replace any that may perish through Date and Parties. Parcels. Term. Rent. Tenant agrees to pay Rent and Taxes. To repair. To cultivate Garden and Orcliard. 954 App. B. s. 11. Not to assign, &c. To deliver up. To permit Landlord to enter. Determination of Tenancy. Power of Ee-entry. Appendix B. (conveyancing precedents). decay or accident, and to leave as well those now growing as any hereafter to be planted in good order and condition]. o. The tenant not to assign or sublet the premises or any part thereof, norto^ take or retain any lodgers or allow any married son or daughter to reside with him in the said cottage without the landlord's consent. 6. The tenant on the expiration or sooner determination of the tenancy to deliver up the premises in such good and tenantable repair, order and condition as aforesaid. 7. The landlord and his agents to have access to the premises at all reasonable times to view the condition of the same. 8. The tenancy shall be determined at any quarter day upon three months' previous notice in writing by either party. 9. Provided always, that if and whenever any part of the said rent shall be in arrear for days, whether legally demanded or not, or if and whenever there shall be a breach of any of the tenant's agreements, the landlord may enter upon any part of the premises in the name of the whole, and thereupori the tenancy shall determine. As WITNESS, »S:c. [The ScHEDVLE above referred to.] Date and Parties. Stamp. Testatum. Parcels. 1. On a strict Tenancy at Will. 2. From Week to Week. 3. From Month to Month. Reddendum. Agreements by Lessee. Sect. 12. — Agreement for letting a Cottage, Ac. on Tenancy at Will, or from Week to Week, or from Month to Month. Agreement made the day of , 18 — , Between A. B. of, &c. of the one part, and C. D. of, &c. of the other part ; the said A. B. doth demise tmto the said C. D., his executors, administrators and assigns, All [describe X>arrels] together with the [outbuildings, yard, garden, land and] appurtenances to the said cottage belonging or therewith usually held and enjoyed [except and always reserved ; here state any exceptiun ;] From the day of ■ [instant, or last or next], " so long as both parties shall please, upon a strict tenancy at will and not otherwise," or say " upon a weekly tenancy determinable by either party on any Saturday, upon one week's previous notice to quit in writing," or say " upon a monthly tenancy, determinable by either party, on the day of any month, l^pon one calendar month's previous notice to quit in writing," provided that three days' less notice than the above shall be sufficient, if given during the first [week or month] of the tenancy : Paying during the said tenancy the rent of shillings and pence per week, on day in each week [or the rent of pounds shillings and pence per month on the day of each month], the first of such pay- ments to be made on the day of . And the said lessee agrees with the said lessor to pay rent ; and to pay rates and taxes (c) ; that the said lessee will not use premise's as a shop ; and will not assign without leave [nor sublet the said premises or any part thereof without such leave;] and that he will leave premises in good repair. The said lessor may re-enter on non-payment of rent or non-observance of agreements. As witness, &c. Sect. 13. — Agreement for Building Lease. Parties. Agreement made the day of ■, 18—, Between A. B. of, &c. (herein- Stamp (el). after called the lessor), of the one part, and C. D. of, &c. (hereinafter called the lessee), of the other part. Parcels. The lessor agrees to demise and let, and the lessee agrees to take. All that piece or parcel of building land situate, &c. [jiarcels'], which piece of land hereby agreed to be demised is delineated with the abuttals on the plan drawn in the margin of these presents, and therein coloured red ; Excepting and reserving- (c) Omit this cnvenant, and such of those which follow, as are not actually agreed on. {d) See Stamp Act, . 938. 1891, s. 75, ante. Ageeement for Lease of Land for Building Purposes. 955 unto tlie lessor, &c. [rcscrrafionli, Together with all rights, members, and appurtenances belonging or appertaining to the premises for the term of ninety- nine years from the clay of •, IS — , At and under the several yearly rents following, that is to say, for the first year of the said term a peppercorn rent, if demanded ; for the second year thereof the rent of £ ; for the third year thereof the rent of £ ; and for the foiu'th, and for each and every sub- sequent year during the said term, the full yearly rent of £ , all such several rents to be paid quarterly on the usual quarter days, the first payment of rent to be made on the day of , 18 — , and such several rents to be clear of land tax, sewers, main drainage, [and Metropolitan] rates, tithe rents-charge, and all existing or future taxes, rates, charges, assessments, and deductions whatsoever, whether parliamentary, parochial, or otherwise, to which the pre- mises, or the lessor or lessee in respect of the premises, are or is, or hereafter shall be liable, except only the landlord's proj^erty tax in respect of the said rents. And such several rents (if required by the lessee) shall be apportioned and divided for or in respect of the messuages or buildings and land to be com- i:)rised in the leases (if more than one) to be granted pursuant to these presents, in such manner as the lessee and his nominees, and the lessor or his surveyor or agent for the time being, shall mutually agree uj^on, but so that the apportioned rent shall in no case exceed one-sixth of the rack-rent of the houses comprised in such leases respectively. And every such lease, and a counteri^art thereof, shall be prepared by the solicitors of the lessor at the costs and charges in all resisects of the lessee (e), and shall contain covenants to pay rents and all future and existing rates, taxes, assessments, and deductions whatsoever, except land- lord's property tax, and to repair, and insure, to show receipts, and rebuild, in case of fire ; and that the lessor shall have full liberty to enter and view the state of repair and condition of the premises comjirised in such lease ; and also a proviso for re-entry on non-payment of rent, &c. [_see ante, Sect. 1, suhstitutrng "lessee or his nominee," /or "tenant"] by the lessor (/) ; and all covenants and conditions which may be necessary in conformity with the terms of these presents, or which may be reasonably required by the lessor or his solicitor. And it is hereby agreed and declared that leases of the land and premises hereby agreed to be demised, may be required to be granted under these presents, upon the terms and in the events hereinafter mentioned (that is to say), that as soon as the lessee shall, to the satisfaction of the lessor or his surveyor for the time being, have erected, roofed, and covered in, or caused to be erected, roofed, and covered in, on the said land, any messuages or dwelling-houses, at the cost of £ at the least for each messuage or dwelling-house, with its appur- tenances, and according to such plans, elevations, and S2")ecifi cations as shall be pi'eviously approved by the svirveyor for the time being of the lessor, then he the lessor shall and will, when thereunto requested, grant unto the lessee or his nominee or nominees a lease or leases of siich messuages or dwelling-houses which shall have been so erected, roofed and covered in, and otherwise partially completed as aforesaid, at an apportioned annual rent to be fixed as hereinbefore m.entioned. Provided Always, &c. \_here insert any special stipulations ivith regard to the sites, frontage, or laijing out, (fv_'., of the intended houses and appurte- nant land']. And it is hereby agreed and declared that every lease to be granted under these presents shall contain a plan of the premises therein resj)ec- tively comprised, to be prepared by the surveyor for the time being of the lessors. And the lessee hereby agrees that he will accept every such lease as shall be granted under these presents, without requiring or investigating the lessor's title, and will execute a counterpart thereof, and pay the costs of every such lease and counteri^art, and also the costs, charges, and expenses of the surveyor for the time being of the lessor, which shall have been incurred with resjiect to the premises comprised in such lease. And that he will, within months from the date of these presents, at his own cost, sufficiently fence off the land hereby agreed to be demised, so as to protect the adjoining land from trespass App. B. s. 13. Terui. Rents. Apportionment ot Rents. Leases to be lii-anted. On completion of intended Houses. Special Stipniations. Conditions of Leases. Lessor's Title not to be required. Lessee to pay Costs of Leases, &c. To fence off Land. {c) The form of lease is often prepared at the same time as the agreement, ami appended as a schedule thereto ; in such a case say, "and sliall be in the fornr appended by way of schedule to these presents, or as near thereto as circum- stances will admit." (/) A qualification of the power of re- entry is essential for the protection of the lessee where buiklings liave been erected at his expense, or premium paid. 956 App. B. s. 13. To expend £ within 5 Years. Power on Default for Lessor to determine tliis Agreement. Operation of Agreement. Appendix B. (conveyancing precedents). and damage, and will, previously to requiring any lease to be granted under these presents, fence off the land from time to time required to be leased from the adjoining land, with a substantial wood paling, or with a brick wall of at least nine inches thick, to the satisfaction of the lessor or his surveyor or agent for the time being. And that he will, within the period of five years from the day of , 18 — ■, lay out and expend the sum of £ at the least, by an expendittu-e of not less than £ during the first two years ending the day of , 18 — , and the further sum of £ at the least dui-ingthe three next succeeding years ending the day of , 18 — , such sums of money to be laid out and expended in the erection and completion on the said land hereby agreed to be demised of good and substantial messuages or dwelling-houses at the cost of £ at the least for each messuage or dwelling-house with its appurtenances. [^Covenants as to the materials of the houses, as to laiiiiKj oat roads, and as to depositing plans are also usuaUy inserted.^ PiioviDED ALWAYS, and it is hereby agreed and declared, that notwithstanding anything hereinbefore contained in case the lessee shaU not in the manner and within the respective periods aforesaid expend in and about the erection of such messuages or dwelling-houses and buildings as aforesaid the sums hereinbefore agreed to be expended in the making and completing and rendering fit for habitation the same upon the ground hereby agreed to be demised, and shall not in all other respects carry out into complete effect the agreements hereinbefore contained and on his part to be performed and observed it shall be lawful for the lessor at any time after such default shall have been made as aforesaid by notice in writing under his hand to be delivered to the lessee or left at his last known place of abode in England, to determine and make void this present agreement and every matter and thing herein contained as to all and singular the land and premises hereby agreed to be demised except such part or jiarts thereof as shall have been before such notice actually demised : Provided also that nothing in these presents con- tained is intended to be or shall in any way be held or construed to be or operate as a present demise or to give or vest in the lessee any term of years in the said piece or parcel of land and premises hereby agreed to be demised until such lease or leases thereof shall be actually granted as aforesaid [insert i)iter- pretation rkiitse [suhstituting "lessor "/or "landlord"), see Sect. 10, ante, p. 953]. As WITNESS, &C. Date and Parties. Stamp. Testatum. Parcels — Land. Plan. Messuage. Exceptions. Habendum. Sect. 14. — Concise Lease pursuant to the Leases Act, 1845, 8 tfc 9 Vict. c. 124 (g). Tins IiiTDENTTJRE, made the day of , 18 — , in pursuance of an act to facilitate the granting of certain leases. Between A. B. of- , in the county of [esquire], of the one part, and 0. D. of , in the same county [tailor], of the other part ; WITNESSETH, that the said A. B. (//) Doth demise unto the said C. D., his executors, administrators, and assigns. All [here descrihs the parcels, ex. gr.'] : All that piece of land situate at , in the parish of — — , in the county of , containing [ square yards, or — — acres, roods, and perches, or thereabouts], now or late in the occupation of or his undertenants ; [which said piece of land is delineated in the plan drawn in the margin of these presents, or hereunto annexed, marked with the letter A, and with the initials of the said parties hereto, and therein edged with a red colour, or say, and therein coloured green, or as the case may he (the position, boundaries, and dimensions thereof appearing in the said plan) (?')]. Together with the [messuage or dwelling-house] and all other erections and buildings on the said land or any part thereof Except {!<) : From the day of [instant, or last, or next, or 18 — ], for the term of years [and one-half, or three-quarters of another year, wanting days] thence ensuing : (*/) This statutory form of lease has been little, if at all, used. The Conveyaueing Act, 1881, which contains other short forms, contains no short form of lease. (/i) ]f any premium paid hc7'e say, ''In consideration of the premium or sura of pounds sterling, now paid to him by the said C. D. (the receipt whereof is hereby acknowledged), and of the rent and lessee's covenants hereinafter reserved and contained." [i) A map or plan is not so necessary in a lease as in a conveyance ; it may be omitted when more convenient. (k) Here state any exceptions, as agreed on ; sec post, Sect. 26 ct seq. Concise Lease pursuant to 8 & 9 Vict. c. 124. 957 Reddendum. Covenants by Lessee. Yielding therefor during the said term the rent of [state the rent and mode of Apr. B, payment, ex. gr.'] £ per annum by equal [quarterly, or half-yearly] payments on the day of [the day of ■, the day of ], and the day of , in each year, the first of such payments to be made on the day of next. That the said C. D. covenants with the said A. B. to pay rent ; and to pay taxes ; and to repair ; and to paint outside every third year; [or sai/, " and in every three years of the said term to paint all the out- side woodwork and ironwork belonging to the said premises, with two coats of proper oil coloiu'S in a workmanlike manner; "] and to paint and paper inside every secenth year ; [or say, " and in every seven years of the said term to paiiit the inside wood, iron and other works now or usually painted with two coats of proper oil colours in a workmanlike manner, and also repaper with paper of a quality as at present, such parts of the premises as are now papered ; and also wash, stop, whiten or colour such parts of the said j^remises as are now plastered "] : and to insure from fire in the joi^t names of the said A. B. and the said C. D. ; to show receipts ; and to rebuild in case of fire : And that the said A. B. may enter and view state of repair, and that the said C. D. will repair according to notice : That the said C. D. will not use jjremises as a shop [if the premises may be used for other purposes than as a private dwell iny-house only, say according to the actual agreement of the parties, "That the said C. D., his executors, administrators or assigns, will not at any time duiing the said term, use or exercise, or permit or suffer to be used or exercised in or ujion the said premises or any part thereof, any noisome, noxious, offensive or dangerous trade or business whatsoever without the consent in writing of the said A. B., his heirs or assigns"] : And will not assign without leave [/'/" so agreed, add, "nor sublet the said premises or any part thereof without such leave"]: And that he will leave premises in good repair : Proviso for re-entry by the said A. B. on non-payment of rent or non-performance [or non-observance] (/) of covenants : The said A. B. covenants with the said C. D. for quiet enjoyment. In witness whereof the said parties hereto have hereunto set their hands and seals. Signed, sealed and delivered by the [above / or within] named , in the presence of I If any premium paid indorse a receipt as \ follows : " Eeceived of Mr. CD. the sum I of pounds, as within mentioned." j s. 14. Covenants bj" Lessor. Sect. 15. — Lease of a House, &c. : the Tenant to pay all Bates and Taxes {except as otherwise agreed), to pay Interest on Rent in arrear, and to Eepair, Faint, Insure, &c. : Option for Tenant to purchase the Fee. This Indenture, made the day of , 18 — , Between A. B. of, &c. (hereinafter called the lessor), of the one part, and C. D. of, &c. (hereinafter called the lessee), of the other jjart ; "Witnesseth, that in consideration of [the premium or sum of pounds sterling, now paid by the said C. I), to the said A. B. (the receipt whereof is hereby acknowledged) ; and also in consideration of the expense which the said C. D. has incurred and will incur in the erection and finishing of the messuage or tenement hereinafter mentioned, and also in consideration of] the rent and lessee's covenants hereinafter reserved and contained, the lessor doth demise unto the lessee, his executors, administrators and assigns All [state parcels and any exceptions or reser- vations'] : To hold the said premises hereinbefore expressed to be demised, with the appurtenances [except as before excepted (rn),] unto the lessee, his executors, administrators and assigns from the day of [last, or next, or instant, or IS — ], for the term of years (?i). Yielding and Paying therefor yearly during the said term the rent of £ sterling by equal quarterly payments on [state days of payment, ex. gr. the 25th day of' March, (I) See ante, p. 332. (m) Omit these words if there be no previous exception. (n) If the lease contiins a proviso for determining it at the end of the first [seven or fourteen] years, or at some other specified period, liere say, "determinable nevertheless as hereinafter mentioned," and add the proviso at the end of the deed. Date and Parties. Testatum. Consideration. Stamp. Operative Words. Parcels. General Words. Exceptions. Habendum. Reddendum. 958 Appendix B. (conveyancing precedents). A?p. B. s. 15. Covenants by Lessee. To pay Rent ; and Interest on Arrears of Rent ; and to pay Taxes ; and to repair and to paint Outside every Year ; and to paint Inside every Year : and to Insure to show Receipts : the 24tli day of June, the 29th day of September and the 25th day of December (o), the first of such jiayments to be made on the day of • next, and the last payment to be made in advance days before the expira- tion of the said term]. Aiv'D the lessee doth hereby for himself and his assigns, covenant with the lessor (^>) in manner following, that is to say, That he the lessee, his executors, administrators and assigns, will during the said term pay the rent hereby reserved at the times and in manner herein- before mentioned: [And further ( purchase the fee simple and inheritance of the said premises hereby demised at or for the sum or price of £ , and of such desii'e shall give to the lessor, his heirs or assigns, or leave at his usual or last known place or places of abode in England not less than six calendar months' previous notice in writing, then the lessor, his heirs or assigns, shall and will at the expiration of such notice, and on payment of the said sum of £ , and of all rent then accrued due, and at the cost in all respects of the lessee, his executors, administrators or assigns, well and effectually convey and assure the said premises and the inheritance thereof in fee simple unto such person or persons as the lessee, his executors, adminis- trators or assigns, shall direct. Ai\D the lessor doth hereby covenant with the lessee that he(/') may peaceably enjoy the said demised premises for the said term hereby granted, without any interruption or distiu'bance (except in accord- ance with the power of entry to view, or with the jiroviso for re-entry hereinbefore contained), from or by the lessor, his heirs or assigns, or any other person or persons lawfully claiming by, from or under him, them or any of them. Ix WITNESS whereof the said i)arties to these presents have hereunto set their hands and seals, the day and year first above written. Attestation. Covenant by Lessor for quiet Enjoyment. In witness, &c. Sect. 16. — Lmse of a House hij Jorut Tenants — Poicer fur Landlord to gioe Orders to view previous to determination of Tenancy — Landlord to Insure. This Indextuee, made the day of , 18 — , Between A. B. of &c., and C. D., of, &c. (hereinafter called the lessors), of the one part, and E. F. of, &c. (hereinafter called the lessee), of the other part: WITNESSETH that, in consideration of the rent and lessee's covenants hereinafter reserved and contained, the lessors do hereby demise unto the lessee, his executors, administrators and assigns, All \_state parcels {y), and any exceptions or reser- vations {t)exture, made the day of , IS — , Betweex A. B. of, &c. (hereinafter called the lessor), of the one part, and C. D. of, &c. (hereinafter called the lessee), of the other part ; AVitnesseth, that. He the lessor doth hereby demise unto the lessee, his executors, admmistrators and assigns. All \_state parcels, ex. (jr., that farm-house, situate in the jiarish of , in the county of called Farm, with all those three cottages, and all those several pieces or parcels of land particularised in the schedule hereto, containing by estimation eighty acres or thereabouts, and now or late in the occupation of ] : (Except and always reserved unto the lessor, his heirs and assigns, all timber and timberlike trees, pollards and saplings now or hereafter growing on the said demised premises, and also free liberty for him and them, with work- men and others, at all reasonable times, with horses, carts and carriages, to fell, cut down, square, saw and carry away the same, and to enter, pass and re-pass into, upon and from the said demised premises, compensation being paid for any damage done to the corn, grain or seeds growing on the same) (r) : To HOLD the said premises hereby demised unto the lessee, his executors, administrators and assigns, fi'om the day of next, for the term of [seven] years thence next ensuing : Yielding and paying therefor yearly during the said term the yearly rent or sum of £ , by equal half-yearly payments, on the day of and the day of in each year, clear of all deductions (excejit for land tax, property or income tax aiid quit- rent) : AxD the lessee, for himself and his assigns, doth hereby covenant with the lessor that he the lessee, his executors, administrators or assigns will pay the said rent of £ hereby reserved, on the days and in manner hereinbefore mentioned for payment thereof : AxD also will at all times during the said term pay and discharge all tithes, tithe comnnitatiou, rent-charge, and also all taxes, rates, duties and assessments, at any time during the said term imposed on the said premises (except land tax, property tax, and quit-rents) ; And also will from time to time and at all times during this demise well and sufficiently repair the premises hereby demised (damage by fire or tempest excepted) : and also fetch and bring to the said demised premises all such materials necessary for the repair of the premises, from any distance not exceeding five miles therefrom : And the said farm-house and premises hereby demised, and every part thereof, being so repaired, shall and will at the end or other sooner determination of the said term peaceably leave and yield up, damage by fire or tempest excepted : And ALSO shall and will purchase, bestow and bring upon the said lands_ one load of good maniire for every ton of hay or clover sold off the said premises : And also shall and will leave one-third of the arable laud hereby demised fallow, or in pea or bean stubble, at the end of the said term : AxD also shall and will at all times during the said term manage and cultivate the said lands in a good and husbandlike manner, except that the lessee, his executors, administrators or assigns, shall be at liberty to break up any of the pastm-e land hereby demised, without compensation or increased rent therefor : And also, that it shall be lawful for his lessor, his heii's or assigns, with or without workmen and others, to enter upon the said premises twice or oftener in every year of the said term, to view the state of repair and condition thereof, and to do all such painting and repairs as he or they may have occasion to do ; Provided always [liere insert proviso far re-entry, p. 959] : And the lessor hereby covenants with the lessee, his executors, administrators and assigns, that he the lessor will repair all the buildings, gates, fences and hedges, "and paint and tar the same whenever required, before the 11th day of October next : And also will grub in a proper manner all the hedgerows belonging to the said premises when required by the lessee, his executors, administrators or assigns: [And also, that he will pay and bear all tithes and rent-charge in lieu of tithes chargeable during the said term on the said land and premises (except the extra tithe rent-charge on hops)] : And also, that he will paint the external part of the said farm-house, with the buildings and cottages on the said farm, and all the gates and fences, twice App. B. s. 18. Date and Parties. Exceptions of Timber, &c. Habendum. Reddendum. Covenants by Lessee to pay Rent. Rates and Taxes ; to Repair ; to leave in Repair. Hay and Clover. To cultivate in husbaudlike manner. Liberty to break up Pasture. Liberty to Lessor to enter and view. Proviso for Re-entry. Covenants by Lessor. To do certain Repairs, &c. To grub Hedge- rows. To pav Tithes, &c. To paint. iq) Taken, with variations, from Beer v. Santer, 10 C. B., X. S. 435. It is in many resjiects more favourable for the tenant than ia usual. (r) For form.s of reservation of timber, minerals and sporting rights, see pp. 968, 969. 61- 964 Appendix B. (conveyancing precedents). App. B. s. 18. To drain part. Also Residue upon certain Tei-ms. To tinil Materials and Rough Timber for Repairs, &c. To purchase at end of Term the Growing Crops, Stock in Trade, &c. Proviso enabling Lessee to deter- mine Term as to part of the Land (0- Proviso enabling Lessee to deter- mine Term in 3 or 5 Years. during the said teiTU [or oftener] if required by tlie lessee, his executors, adminis- trators, or assigns : AJxD also, that he and they willdi-ain with proper drain-tiles, one rod apart, ten acres of the land now in rye grass, at his and their costs, except the carriage of the said drain pipes, which is to be borne and paid by the lessee : and will drain the remainder of the lands hereby demised in manner- aforesaid and except as aforesaid (s), upon being paid a further yearly rent of bl. for every 100/. so expended, and so in projjortion for any less sum expended, and which the lessee hereby agrees to pay accordingly from the time of such draining ; And also, that the lessor, his heirs or assigns, will find and provide all such materials as may be necessary for repairs, and all rough timber within five miles of the said premises, and will joay half-part of the labour on such timber and rejiairs, the lessee paying the other half-part : And also, that he the lessor, his heirs Or assigns, or the succeeding tenants, shall and will take and pay for, to the lessee, his executors, administrators or assigns, the growing crops, and all hay, clover, straw and manure, at sale prices, household furniture, live and dead stock, and all machinery necessary for carrying on a farm of eighty acres that shall be erected by the lessee on the said premises, and effects which shall be in, upon and about the said messuage, lands and premises at the expiration of the said term, at a fair valuation thereof to be made by two valuers, one to be chosen by each jiarty, or in the event of their differing, then by a third jierson to be chosen by such valuers : Provided also {t), that in the event of the lessor, his heirs or assigns, being desirous of putting an end to this demise, as far as it aft'ects part of the said lands called , containing about [ten acres], at the end of the first five years of the said term, it shall be lawful for him or them so to do, upon giving to the lessee, his executors, adminis- trators or assigns, notice of such desire at any time ; and thereupon a rediiction of [twenty shillings per aci'c, and so in proportion for less than an acre] shall be made from the said rent of ■ : Provided also, that if the lessee, his executors, administrators or assigns, shall be desirous of putting an end to this demise at the end of the first three or five years of the said term of seven years, it shall be lawful for him and them so to do, upon giving to the lessor, his heirs or assigns, six calendar months' notice in writing of such desire, where- upon this demise shall cease, determine and be at an end as if by effluxion of time, anything hereinbefore contained to the contrary notwithstanding. In WITNESS, &C. Testatum.] Parcels. Habendum. Reddendum. Covenants by Tenant. To apply for Licence. Sect. 19. — Public-Jwuse Lease — Lease for years — Covenant hy Tenant to reside and conduct Business— Proviso fur re-entry on Forfeiture of Licence, ih:. This Indenture, made the day of ■ , 18 — , Between A. B. of and C. I), of (in which indenture the term "landlord" means the said A. B., and includes the heii-s and assigns of the said A. B., and the term " tenant" means the said C. I), and includes the executors, administrators and permitted assigns of the said C. D.) ; Witnesseth, that the landlord doth demise unto the tenant All that public-house known as the Swan Inn, situate in Street, in the parish of , in the county of ; together with all easements and appurtenances whatsoever. To hold the said premises unto the tenant, from the day of , 18 — , for the term of years thence next ensuing, YIELDING AND PAYING [insert reddendum'] : And the tenant hereby covenants with the landlord as follows : That he will pay the' said net rent as aforesaid : And will [iuseii covenants to repair, keep in repair, <{-c., as agreed on. ISee ante, p. 958] : And will apply for and endeavour to obtain the licence or renewal of licences which niay for the time being be necessary for the opening and keeping open during the tenancy the said premises' as a house for the sale of ale, beer, wine and spirits to be consumed on or off the premises ; And will, so long as the necessary licences can be obtained for the purpose, use the said premises as a licensed inn or victualling house only : And will at all times diuing the said term reside on the premises hereby demised, and will personally conduct the business of the said public- (.'?) If the words "and except as afore- said " be omitted, the landlord must pay for the carriage of the drain pipes for the remainder of the land ; Beor v. Santrr. 10 C. B., N. S. 435. (0 See Ag. Hold. Act, s. 41, p. 361. Public-house Lease. 965 house in a proijer and orderly manner, not permitting drunkenness, disorder, Ai>p. B. s. 19. gaming or unlawful games therein : And will not do or suffer to be done upon the premises anything which may be or grow to be an annoyance or damage or disturbance to the lessors or their tenants, or whereby such licences as aforesaid, or any of them, may be forfeited or suspended or a renewal thereof withheld : AxD will not assign or sub-let (.') the premises herebj' demised or any part Not to Assign, thereof, without on each occasion first obtaining the consent in writing of the landlord : AxD the landlord covenants with the tenant as follows : That he will forthwith insure and during the said term keep insured the said premises against fire to the amount of £ at least in the Fire Office or some other respect- able fire office in the joint names of the landlord and tenant, and as often as the said premises shall be destroyed or damaged by fire, that the landlord will expend the moneys received from such insui-ance office in rebuilding or rein- stating the same, it being agreed that the landlord shall not be liable to rebuild or reinstate the premises out of his own moneys in any case whatever : AxD that {^insert covenant fur ijuiet enjoyment, p. 960] : PROVIDED ALWAYS, and these presents are iipon the express condition that, if the tenant fail to obtain a licence for the sale of intoxicating liquors to be consimied both on and off the premises, or if and whenever any part of the rent hereby reserved shall be in arrear for twenty-one days, whether having been legally demanded or not, or in case of breach or non-performance or non-observance of any or either of the covenants on the part of the tenant hereinbefore contained [except the covenants to apply for licences and to sell liquors so far as the same relate to spirits (//)], or if and whenever the tenant shall be adjudicated bankrupt, or if the licence of the tenant shall be forfeited, or if the tenant shall be convicted of any offence against the existing or future Licensing Acts [which shall be recorded on the licence of the tenant] (z) : then and in any of such cases the landlord may •enter upon the premises hereby demised or intended to be demised, and the same may have again, repossess, and enjoy as of his former estate. In "WITNESS, &c. Covenants by Landlord. To Insure. Quiet Enjojnnent. Proviso for Re-entry. Sect. 20. — Lease hi/ a Teiaint fur Life, &e., under Settled Land Act, 1882 {ante, p. 7). This Indenture, made the day of , 18 — , Between A. B. of , in the county of [esquire], of the one part, and C. D. of , in the county of • • [farmer], of the other part: Whereas the said A. B. is entitled to the receipt of the rents and profits of the hereditaments hereinafter described and intended to be hereby demised, as tenant thereof for his own life, by virtue of a settlement created [by the will of E. F., late of , esquire, deceased, bearing date on or about the day of , IS — , and proved at , on or about the day of , 18 — , or, by an indenture dated on or about the day of , 18 — , and made or expressed to be made between, &c., as the case may he'\ : "WITNESSETH, that He the said A. B. doth by these presents, made in ■exercise and execution of the power vested in him by the Settled Land Act, 1882, and of all other powers in anywise enabling him in this behalf, demise and lease unto the said C. I)., his executors, administrators and assigns, All [descrihe j^d^cels, EXCEPT, and always reserved unto the said A._ B. and his assigns, here state any exceptions as agreed on (n),] To HOLD the said \_short general description of pjrvperty, ex, gr., "farm and lands"] unto the said C. D., his executors, administrators and assigns, from the day of • last (b), for the term of years (c) thence next ensuing, Yielding and paying therefor yearly and every year dm-ing the said term((/) the rent of Date and Parties. Recital of Lessor's Title. Agreement for Lease. Operative Words. Parcels. Exceptions. Habendum. Reddendum. (.(•) For form of stipulation for leaving assignment or sub-lease with solicitor of ground landlord for registration, see Urooks V. Drysdale, 3 C. P. D. 53. (//) This is suggested by the increase of duties under tlie Inland Keveinie Act, 1880 (43 & 44 Vict. c. "20, ss. 40—43). (::) See JFooler v. Knott, 1 Ex. D. 625 ; and p. 714, ante. (a) See forms, post, pp. 968, 969. {h) As to date see ante, 7. {c) Not exceeding 21 years, ante, 7. \fl) If necessary, here say, " except such part thereof as elapsed on or before the day of last." Back rent may be considered as a benefit to the tenant for life in the nature of a fine or premium, that should be avoided. Condition of Be -entry. 966 Appendix B. (conveyancing precedents). App. B. s. 20. £ , by equal [quarterly or half-yearly] i^ayments, on the day of &c., state days of jKiyincnt, the first of such payments to be made on the Covenants by day of next : Akd the said C. D. doth hereby for himself, and his assigns covenant with the said A. B., in manner following, that is to say, that he the said C. D., his executors, administi-ators or assigns, will, during the said term, pay unto the said A. B. or his assigns, the rent hereby reserved, at the times and in manner hereinbefore mentioned and appointed for pajTuent thereof : And further [livrc insL-rt such usual and proper covenards as the lessor 'shall think fit, and also a condition of re-entry on non-payment for a period of 28 days, or some less period, of tlie rent reserved — All the covenarits should be made tvith the said A. B. "and his assigns" — And. after the usual qualified covenants for quiet enjoyment, add the folhnvincj proviso, viz.] : "Provided always, and it is hereby agreed and declared, that neither the heirs, executors nor adminis- trators of the said A. B. (but only his assigns) shall be liable for any breach of the above covenant happening after the death of the said A. B. : And it is hereby declared and agreed, that whenever the assigns of the said A. B. are- hereinbefore mentioned, such words ' assigns ' shall be construed and deemed and taken to include the persons or person for the time being entitled to the reversion of the said demised premises immediately expectant upon the deter- mination of the said term hereby granted, imless there be something in the In witness, &e. subject or context repugnant to such construction" ((•). In witness, &c. (Indorsement.) Received this day of , 18 — , of Mr. C. D., a counterpart of the within -written indenture duly executed by him. Witness, E. F. A. B. Sect. 21. — Lease of Right of Shooting. Tins Indenture made the day of , 18 — , Between A. B. of, &c. (hereinafter called the lessor) and C. D. of, &c. (hereinafter called the lessee) : WITNESSETH that in consideration of the rent and lessee's covenant hereinafter reserved and contained The said lessor doth herebj' demise unto the said lessee Parcels. All THAT the sole and exclusive right (subject only to the concuiTent rights of tenants under the Ground Game Act, 1880) of shooting, fowling, coursing, fishing and sporting in, over and upon the farms, lands, woods and plantations mentioned in the schedule hereimder written and situated in the several parishes mentioned in the same schedule, and containing altogether acres or thereabouts, and also all that keeper's lodge situate at , now in the occupation of E. F. : To hold the said i^remises unto the said lessee from the day of last past, for the term of years, if the said lessee shall so long live : Yielding ^\n^d paying therefor the yearly' rent of £ — — , by equal quarterly payments on the 2oth day of March, the 24th day of June, the 29th day of September, and the 2oth clay of December in each year, with a proportionate part of the said rent up to the day of the decease of the said lessee within the said term, the first payment to be made on the day of next : And the said lessee doth hereby covenant with the said lessor, in manner following, that is to say, that he the lessee will pay the said rent at the times hereinbefore mentioned, and will also pay all rates and taxes payable in respect of the said keeper's lodge : And will exercise the said rights and privileges hei'eby demised in a proper and sportsmanlike manner : And will during the said term at his own cost keep at least one effective gamekeeper Covenant to who shall live in the said keeper's lodge : And wiU at all times during the said keep up Game. term keep up a proper stock of game, and particularly of hen pheasants, and will to the best of his power jn-eserve the eggs and yoimg of game birds from being destroyed or injured; And will not at any time assign or underlet, or otherwise part with the said rights and privileges, and other the premises hereby demised, or any of them, without the consent in writing of the lessor, his heirs or assigns, first had and obtained for that purpose : And the said lessor doth hereby covenant with the said lessee that he paying the rent hereby reserved, and observing and performing the covenants hereinbefore (e) As to tliP necessity fortius proviso, see Williams v. Burrell, 1 C. B. 402. Lease of Right of Shooting. 967 on his part contciined, shall and may peaceably possess and enjoy the rights and Arp. B. s. 21. privileges and other the premises hereby demised without any interruption or disturbance from or by the lessor, his heirs or assigns, or any person or persons lawfully claiming through, under or in trust for him or them or any of them : Akd that if this lease shall determine by the death of the said lessee dui'ing the said teiTa, he the said lessor, his heirs or assigns, ■will pay or allow to the executors, administrators and assigns of the said lessee all expenses incurred by the said lessee in preserving and rearing the game from the end of the preceding season up to the day of the death of the said lessee. Lsr WITNESS, &c. [The Schedule above re/erred to.'] Sect. 22. — Parcels — House in a Town. AxL that messuage or dwelling-house [with the coach-house, stables, yard, garden, and outbuildings thereto belonging] situate and known as No. , Street in the parish of in the county of , and now in the occupa- tion of E. F. Sect. 23. — Parcels — Piece of Land. All that piece or parcel of land situate at in the parish of in the county of , and containing by admeasui'ement acres, roods^ and perches or thereabouts, as the same is delineated in the plan di-awn in the margin of these presents and therein coloured . And also the messuage or dwelling-house and outbuildings now standing on part of the same piece or parcel of land and also delineated in the said plan and therein coloui-ed . Sect. 24. — Parcels — Farm. All that messuage or farm-house and farm with the cottages (now let with the farm), barns, stables, sheds, buildings, and several closes and pieces or parcels of land thereto belonging, known as the farm, situate in the parish of in the county of and containing by admeasurement acres, — — roods, and perches or thereabouts, and late in the occupation of , and all which premises are more particularly described in the schedule hereunder written and delineated with the chattels in the map or jDlan drawn in the margin of these presents and therein coloiu-ed [such schedule and map being respectivelj' extracts from the apportionment of tithe commutation rent-charge for the parish of aforesaid and fi'om the map referred to in the same apportionment] . Sect. 25. — Grant of a Eight of Eoad {in a Lease). Tofjdher with full and fi'ee liberty, licence, power and authority for the lessee, Appurtenances, his executors, administrators and assigns, at all times during the continuance of Right of Road. this demise for him and them and his and then- agents, servants and workmen, and the tenants and occupiers for the time being of the land hereby demised, or of any buildings to be erected thereon, at his and their will and pleasiu'e, and whether by night or by day, and for all legitimate purposes whatsoever to go and return, pass and repass with or without horses, carts, waggons, wains with Horses, and carriages of any description laden or unladen, and also to drive all manner Carts, &c. of cattle and beasts whatsoever, in. along, over and through [ten] feet at least And with in breadth of certain closes of land of him the lessor, situate and adjoining the ^^ ^' "' [most easterly end and the south-easterly side] of the said plot of land herein- before described and hereby demised, in order to afford free egress and regress from and to the said plot of land hereby demised, and the high road leading from to , and which said intended right of road or way, together with 968 Appendix B. (conveyancing precedents). App. B. 6. 25. its coui'se or direction, is delineated and set forth in the said plan hereupon ; indorsed and therein coloured hmwn, the lessee, his executors, administrators i^^pfan^^"^'^**'"^ ^^^ assigns, nevertheless making good from time to time all damage done to the said land, the right of road over which is so granted as aforesaid. Sect. 26. — Exceiition and Beservation of Use of Roads. Except and always reserved unto the lessor [his heirs and assigns or executors, administrators and assigns], and his and their lessees and tenants in common with the lessee, the full and free use of all roads and ways which may at any time during the term hereby [agreed to be] granted, be made or set out upon or over any part or j^arts of the said land hereby [agreed to be] demised ; he the lessee, his executors, administrators and assigns, repairing, keeping and leaving the same in good repair so long as the same shall continue private roads or ways. Sect. 27. — Exception and Reservation of Use of Drains, <&c. Except and always reserved unto the lessor [his heirs and assigns or executors, administrators and assigns], and his and theii" lessees and tenants, free passage and running of water and soil coming or to come from any other lands or buildings of the lessor, his [heirs or assigns, or executors, adminis- trators or assigns], adjoining or near to the premises hereby demised, in and through the channels, drains, sewers and watercourses belonging or to be made thereto (/). Exceptions of Timber and Trees. Mines, Minerals and Quarries. Game. Sporting. Nests, Eggs and yonng Binls to be preserved. Sect. 28. — Exception and Resermtion to Landlord of all Timber and Trees, Mines, Minerals, Quarries and Game, &c. Except and always reserved unto the lessor, his heirs and assigns, all timber and timberliko trees and trees likely to become timber and all other trees whatsoever, whether now standing or being, or which hereafter during the said term shall be staiuling or being upon the said demised premises : And also aU mines, minerals and (|uarries : Ajsd also (subject only to the concui-rent rights of the lessee under the Ground Game Act, 1880 (ly)) all game and wild fowl, woodcock, snipes, quaUs, landrails [deer] and rabbits, and also the sole liberty of hunting, coursing and shooting in, iipon, through and over the said lands and premises, and at his and theii- free will and pleasure, and for that purpose it is hereby declared and agreed that the lessor, his heirs and assigns, and his and their friends (A), companions and servants, with dogs and horses, from time to time, at all seasonable times of the year during the term hereby granted, may enter into and upon the said demised premises or any part thereof, to hunt, course and shoot thereon, and the game and wild fowl, woodcocks, snipes, quails, landrails and rabbits there killed and taken to have and carry away to the use of the lessor, his heirs and assigns, he and they doing no more damage to the said lands and premises or the crops thereon growing and being than what necessarily happens in killing, taking and following such game and other animals : And also, that he the lessee, his executors, administrators and assigns, shall and will from time to time and at all times during the said term use his utmost endeavoiu's to preserve the nests and eggs of all partridges and pheasants, as well as the young of those bii'ds and of all manner of game, free from injui-y and from being taken and removed from the places where the same may be found, except for the necessary provision thereof, and when such removal "shall become necessaiy, then the lessee, his executors, administrators (/) This e.Keeptiou extends to water and soil coming through the adjoining premises but not to the refuse of tan pits. Chadicick V. Marsden, L. R., 2 Ex. 285 ; 36 L. J., Ex. 177. [g) In law, it is immaterial whether this saving is inserted, but it may be desirable to insert it to show that the statutory right of tlie tenant under the Act of 1880 lias not been forgotten. (A) The words "any friend" are_ not confined to a single friend at a time ; Gardner v. Colycr, 12 W. R. 979 : 10 L. T., N. S. 715, Q. B. Exceptions and Keseryations. 969 and assigns, shall and will take due and proi^er care of such eggs and young Arp. B. s. 28. tirds as aforesaid, and endeavoui* to rear them for the use of the lessor, his " heirs and assigns : AxD also reserving to the lessor, his heirs and assigns, free Right of Entry. liberty and power into, upon or over the said demised premises, upon or for any other reasonable jjurjiose or occasion whatsoever, doing thereby no wilful or unnecessary injury or damage to the corn, hay, grass or fences of the lessee, his executors, administrators or assigns. Sect. 29. — Excepiion and Reservation to Landlord of all Mines, &c. Except and always reserved unto the lessor, his heii's and assigns, all mines, veins, seams and beds of stones, coal and cannel, and all other mines, minerals, delphs and quarries whatsoever, which now are or hereafter diuing the said term hereby granted or created, shall be found to be within or under the said hereby demised land and premises, or any part thereof ; together with full and free liberty, power and authority to and for the lessor, his heirs and assigns, and his and theii' servants and workmen and others, by his and their authority, with or without horses, carts and other carriages and all necessary implements and materials, at all times during the said term to enter into and upon the land and premises hereby demised, or any part thereof other than any such part or parts of the surface thereof in or upon which there shall be any building, reservoir, di-ain, watercourse or stream in use for carrying on the business which may be carried on by the lessee, his executors, administrators or assigns in or upon the said premises or adjacent thereto : Axd to sink any pit or shaft therein, and to make anj^ way or ways therein or thereon for the purpose of caiTying and conveying coals, stone or minerals, and to bore, search for, dig, get, carry away and dispose of such coal, cannel, stone, slate and minerals respectively, without pajT.ng any compensation for any unavoidable or ordinary damage to be done or occasioned thereby, he and they making compensation to the lessee, his executors, administrators or assigns, for all damages to be done or occasioned in or by the making any pit or shaft in or under the said i:)remises, or by making any rail or other ways as aforesaid thereon, or by digging, getting and carr^-ing away such coals and cannel, stone, slate and other minerals in or after the rate and projoortion following (that is to say), at the rate of for every superficial square yard of land for a year, and so in proportion for any greater or less quantity than a yard, or a longer or a shorter space than a j-ear : AxD ALSO, excepting and reserving unto the lessor, his heirs and assigns, full and free liberty at all reasonable times duiing the said term hereby created, with or without surveyors and workmen, to enter into and upon all or any part of the said hereby demised premises, in order to inspect the condition thereof. Except all Mines, &c. With liberty to work them. And to sink Pits and Shafts and make Ways. And to dig and get Minerals, &c. Compensation. Right to enter and view State and Condition, &c. Sect. 30. — Reservation, of Timber and Minercds [Concise form). Except and always reserved unto the lessor, his heirs and assigns, all timber and other trees, j^oUards and saplings, and all mines and minerals, with full liberty of access to cut, work, and carry away the same respectively. Sect. 31. — Special form of Covenant not to Assiyn or Underlet. A^"^D that the tenant [the said C. D., his executors, administrators and assigns] will not assign or underlet the premises hereby demised or any part thereof, except to a resjiectable and solvent assignee or under-tenant, nor without having given two months' previous notice in writing to the landlord [the said A. B., his heirs and assigns] of the name and abode of such proposed assignee or under-tenant. 970 Appendix B. (conveyancing precedents). Apr. B. s. 32. Sect. 32. — Avothcr form fur a Du-dJinfj-honse. And tliat the tenant [the said C. D., his executors, administrators and assigns] will not assign or underlet the premises hereby demised or any part thereof except furnished for the period of months, without the leave in writing of the landlord [the said A. B., his heii's or assigns] first obtained: Provided always, and it is hereby agreed by and between the parties hereto that such leave shall not be withheld in the case of a proposed assignee or undertenant being respectable and solvent. Sect. 33. — Covenant fur Notice of Assignments,''' The Norfolk Clause." And upon every assignment of the said premises, or any part thereof not being by will or operation of law without deed, will, within one calendar month thereafter, give notice thereof in writing to the reversioner or reversioners, or his or their agent, stating in such notice the name, place, or residence, or busi- ness, and description of the party to whom such assignment shall be made, and will, within such jjcriod of one calendar mouth produce to the reversioner or reversioners, or his or their agent, such assignment or a duplicate or attested copy thereof, of which notice and production having been duly given and made a stamj) or memorandum on such assignment duplicate or attested copy, or on a duplicate of such notice, signed by the reversioner or reversioners, or by his or their agent on his or their behalf, shall be conclusive evidence. Sect. 34. — Covenant to Insure. And also will during every part of the said term other than the last twenty years thereof, insure and keep insured the buildings for the time being, on the ground hereby demised, in some respectable office for insurance against fire in England in the sum of ■ , and will, during the last twenty years of the said tenn, keep insured the buildings for the time being on the ground hereby demised, in some respectable office for insurance against fire in England, in such sum as the agent for the time being of the reversioner or reversioners shall at the commencement of, or diu'ing such twenty years, from time to time, fix and determine, and in default of any such fixing or determination in the sum of , and will, if required so to do, produce the receipts for the premium of such insurance for every cuiTent year to such agent as aforesaid. Sect. 35. — Covenant to produce Copies of Deeds of Assignment, &c. And will, if and whenever the said premises hereby demised, or any part thereof, shall be assigned, underlet or otherwise disposed of, deliver, at his [and their] own exjiense, an attested copj- of the deed of assignment, underletting or disjiosition, and of every plan thereon, to the landlord [the said C. D., his heirs or assigns], or his \_ur theii'] solicitors within — — days after the execution thereof. Sect. 36.- — Proviso that Tenant may remove Buildings or Fixtures (?'). Pkovided always, and it is hereby agreed and declared, that if the tenant shall affix to or erect on the premises any fixtiu-e or building which shall not be so affixed or erected, instead of some fixture or building affixed to or being on the premises at the date of the commencement of the lease hereby granted, then such fixture or bviilding shall belong to and be removable by the tenant at any time during the term herebj^ granted, or within twenty-one days after the (j) This clause is an adaptation to non-agricultuial tenancies of the 34tli section of the Agricultural Holdings Act, 1883. Removal of Fixtures — Compensation for Improvements. 971 detemiination thereof : Provided always, that tlie tenant shall make good all Api>. B. s. 36. damage to the said j^remises hereby demised or any part thereof by such removal, and shall give one month's previous notice in writing to the landlord of his inten- tion to remove such fixture, and at any time before the expiration of the notice of remo^•al the landlord by notice in writing to the tenant may elect to piu-chase such fixture at a fair value, and thereui)on the same shall be left by the tenant and become the property of the landlord : Provided also, and it is hereby agreed and declared, that the landlord shall, during the remainder of the said tenn, be entitled to additional rent equal to oL per cent, on the purchase-money of any fixtiu'e so pui'chased by him as aforesaid, to be enforceable in the same manner as the original rent herebv reserved. Sect. 3". — Proviso for Compensation for Tenaitfs Improvements of House. Pkovided -AiWAYS, and it is hereby agi-eed and declared that the tenant may execute, in a workmanlike manner, all such improvements of and additions to the said messuage and premises as he may think proper, keeping and delivering up in good rej^air all such improvements and additions, and that at the expira- tion of the term hereby' created the landlord shall pay to the tenant a sum equal to [ten] years' pui-chase of the additional rent, if any, which shall be obtained for the said messuage and premises by reason of such improvements and additions, such sum to be payable either immediately on a reletting of the said messuage and premises, or at the option of the landlord, by [ten] yearly instal- ments with interest upon unpaid instalments at the rate of five per cent, per annum. Sect. 38. — Proviso for allowing House to be inspectedhy intending Ntiu Tenant during last Three Months (f Term (/i). AxD that the tenant will at all reasonable times [at any time between the houi's of two and five in the afternoon] during the three calendar months preceding the tennination of the tenancy of the request of the landlord or his agent, permit the said demised premises to be inspected by any person or the agent authoiized in wiiting of any person bona fide desirous of becoming tenant to the landlord, and having given his name and address to the tenant or one of his servants. Sect. 39. — Proviso for Pesumption (f Lessor of all or any part of the Land demised, on giving Three Months' Native, and making Compensation for Improvements, tix. — Besidue of Rent to he reduced jxroportionately {I). Provided xevertheeess, and it is hereby lastly declared and agreed by and between the said jmrties hereto, that in case the lessor, his heii's or assigns, shall at any time, or from time to time ckiring the continuance of the said tenn hereby granted, be minded and desirous of having any part [or parts of the whole] of the said land hereby demised delivered up to him or theio, and of such his or their mind and desire, shall give three calendar months' notice in waiting to the lessee, his executors, administrators or assigns, or leave the same at his or their last or usual jilace of abode, or upon the said demised premises, such notice to expire at any time of the year, then at the expiration of such notice so given or left as aforesaid, he the lessee, for himself, his- executors, administrators and assigns, doth hereby covenant peaceably_ and quietly to yield and surrender up, and that the lessor, his heirs and assigns, shall and may take peaceable and quiet possession of such part or parts of the said land as shall be mentioned and included in such notice as aforesaid, he the lessor, his heirs or assigns, paj-ing to the lessee, his executors, administrators or assigns, a reasonable and fair compensation in respect of the monies which may {k) See another proviso, ante, Sect. 16. to year, see sect. 41 of the Agricultural {I) As to resumption for certain pur- Holdings Act, 1883. poses of land held on a tenancy from year 972 Appendix B. (conveyancing precedents). App. B, s. 39. have been laid out by tbe lessee, bis executors, administrators or assigns, in improving the condition of so mucb of tbe said land as sball be so given up to tbe lessor, bis beirs or assigns as berein before mentioned, and tben and from tbencefortb tbe rent reserved by tbis indenture sball be reduced at tbe rate of [2/. 2s.] for eacb and every acre, and so in proportion for a less quantity tban an acre, tbat may be given up to tbe lessor, bis beirs and assigns as aforesaid, and tbe remainder of tbe said land sball be beld by tbe lessee, bis executors, administrators or assigns, at sucb reduced rent, and tbe lessor, his beirs and assigns, sball have tbe same powers and remedies in all respects as if tbe lease had originally been granted at sucb reduced rent, and all and every the covenants, clauses, provisions, stipulations and agreements herein contained sball be as valid and effectual of and for so mucb of tbe land hereby demised as sball not be included in any sucb notice, and tbis indenture sball be read and construed in all respects, in reference thereto, as it sucb reduced rent bad been tlie original rent leserved therein and tbe land originally demised bad been tbe land not included in any sucb notice as aforesaid, and tbe covenants, clauses, provisoes, stii:)ulations and agreements berein contained bad only related to such last-mentioned land. Sect. 40. — Notice to take Land pursmint to the above Pron'so. To Mr. J. G., the executor of the will of C. D., deceased, and to all others whom it may concern : Pursuant to and by virtue of a certain indenture of lease, dated the day of , 18 — , and made between A. B. therein described of the one part, and the said C. D. of tbe other part, I hereby give you notice, tbat I am desirous of having delivered up to me at the expiration of three calendar months from the service of tbis notice upon you, tbe iJeaceable and quiet possession of all that piece of land situate, &c. [and which said piece of land contains bj' admeasure- ment 22a. 2u. 14p. or thereabouts, and is boiinded by tbe sea wall towards the river Thames, and on all other sides by a ditch which separates the same from ■other marsh land now belonging to me], together with all tbe appurtenances thereunto belonging : And I require you to deliver up possession of the same to me accordinglj', and to siuTender all yoiu* interest in the same to me, at the expiration of the said three calendar months ; and, in consideration thereof, I hereby offer and agree to allow you a reasonable and fair compensation in respect of any monies which may have been laid out by you in improving the condition of tbe said ]>iecc or parcel of land above described, and tf) release you from all liabilitj' to the i)ayment of rent, for the said piece of land with the -iippurtenances under the said indenture of lease from the time of my taking possession of the said piece of land : And I boreby further give you notice that tbe reversion in fee simi)leof and in all and singular tbe land and hereditaments comprised in the said indenture of lease with tbe appurtenances was conveyed to me by the said A. B. by indentiu-e dated the day of , IS — , and made between tbe said A. B. of tbe one part, and me the imdersigncd E. F. of the other part, and that I am now- the absolute owner of the said reversion. J )ated this day of , 18—. E. E. of, &c. Sect. 41. — Covenant hy Lessor for Bene ical of Lease. And tbe lessor doth hereby for himself and his assigns, covenant with the lessee, that if the lessee, his executors, administrators or assigns, sball be desirous of taking a renewed lease of the said premises for the further term of years from tbe expiration of the said term berebj- granted, and of such desire shall, prior to the expiration of tbe said last-mentioned term, give to the lessoi's, their beirs or assigns, or leave at the last known place of business or abode in England six calendar months' previous notice in writing, and sball pay the said rent hereby reserved, and observe and perform the several covenants iind agreements herein contained, and on tbe part of the lessee, his executors, administrators or assigns, to be observed and perfonned up to the expiration of tbe said term hereby granted, they the lessors, their heirs or assigns, will upon Covenant for Renewal — Nuisance — Title Deeds. 973 the request and at tlie expense of the lessee, his executors, administrators or App. B. s. 41. assigns (and upon payment by him or them of the sum of £ — — as a premium for such renewal), and upon his or their executing and delivering to the lessors, their heirs or assigns, a counterpart thereof, forthwith execute and deliver to the lessee, his executors, administrators or assigns, a renewed lease of the said premises for the further term of ■ years at the same yearly rent, and under and subject to the same covenants, pro\'isoes and agreements as are herein contained, other than this present covenant. Sect. 42. — Covemod hy Lessor agai'/ist Nuisance in adjoininrj Houses or Fluts[a). And further that he, the lessor, will not do or permit or suffer to be done in or upon any of the other houses and land appertaining thereto respectively, situate in • Square aforesaid \j>r on any of the other floors of the said Mansion], and of which the said lessor is in anywise owner, any act which may be or grow to be a nuisance to the lessee, and that the lessor will at all times upon the reasonable request of the lessee permit him to bring any action or proceeding, and prosecute the same at law or otherwise in the name of the lessor against any lessee or occupier of any such other houses [_or floors] causing a nuisance to the lessee, and that the lessor wUl not waive the breach of anj^ covenant by any such lessee with the lessor against nuisances. And will not convert or suffer to be converted any of the said houses [_or floors] into shops or in any way use them or suffer them to be used otherwise than as private dwelling-houses. And will within three months after request in writing thereto by any three of the said lessees proceed by action of ejectment against any other of the lessees of the said houses [or floors] for any breach of any covenant with him the lessor not to use or suffer to be used any of such houses \jir floors] otherwise than as a private dwelling-house. Sect. 43. — Covenant hy Lessor to produce to Lessee his Title Deeds, ci~c. After the usual qualified covenant for quiet enjoyment, say, "And ALSO shall and will at all times during the said term at the request and expense of the lessee, his executors, administrators and assigns (imless prevented by inevitable accident) produce and show forth to them or either of them, or to theii* or his attorney or agent in England, the several deeds, evidences and writings mentioned in the schedule hereunder written, and at the like request and costs (unless pre- vented as aforesaid) fiu'nish the lessee, his executors, administrators and assigns, with copies or extracts attested or unattested of or from the same deeds, evidence and writings of any of them, and shall and will permit any person or persons lawfully appointed by the lessee, his executors, administrators or assigns, to examine such copies and extracts respectively with the oiiginals : Provided always, and it is hereby agreed and declared between and by the said several parties hereto, that in case the lessor, his heirs or assigns, shall at any time hereafter dui-ing the said term deliver uj) or cause to be delivered up to any person or persons the said deeds, evidences and writings hereinbefore covenanted to be produced, and shall procure the person or persons to whom the same shall be so delivered, at his and their own cost, to enter into a covenant with the lessee, his executors, administrators or assigns, to the same purport and effect and of the same legal validity as the covenant lastly hereinbefore contained, then and in that case and upon dehvery to the lessee, his executors, adminis- trators or assigns of such new covenant, the said covenant lastly hereinbefore contained shall cease and be void. Add a schedule of the deeds, tfec, at the end of the deed. (a) See Spicer V. Martin, 14 App. Cas. of right to lessor to miild on adjacent 12, and p. 707, ante, and for application property notwithstanding injury to free of the doctrine of that case to flats, see access of light and air, see 3 Bythewood Hudson V. Crijjps, [1896] 1 Ch. 265, and & Jarman, 462, and for form of covenant by p. 728, ante. lessor of house not to build so as to obstruct For form of lease of flat, with reservation lights, see 1 Key & Elphinstone, 695. 974 Appendix B. (conveyancing precedents). App. B. s. 44. Sect. 44. — Cuoenant hij Landlord nut to Distrain. AxD the landlord hereby for himself, his heirs, executors, administrators and assigns, covenants with the tenant, his executors and administrators and assigns that except in the case of the bankruptcj^ of the tenant or his assigns, he the said landlord will not distrain for rent in arrear, if any, but will recover the said rent so in arrear by ordinary action at law only. Sect. 45. — Proviso for Re-entry [m). Provided always, and it is expressly agreed, that if the rent hereby reserved, or any part thereof shall be unpaid for fifteen days after any of the days on which the same ought to have been paid (although no formal demand shall have been made thereof), or in case of the breach of any of the covenants and agreements herein contained on the part of the said lessee, his executors, administrators and assigns, then and iii either of such cases it shall be lawful for the said lessor at any time thereafter into and upon the said demised premises, or any part thereof, in the name of the whole to re-enter, and the same to have again, repossess and enjoy as of his or their former estate, anything hereinafter contained to the contrary notwithstanding. Sect. 46. — Proviso fur Re-entry. [Compeiuation to Tenant for Improved Value.) Provided always, and these presents are on the express condition that if and whenever the rent hereby reserved, or any part thereof, shall be in arrear for days (althovxgh no formal demand shall have been made thereof), or if and whenever there shall be a breach of any of the lessee's covenants herein contained, then it shall be lawful for the landlord to re-enter the said premises and re-possess the same in the maniier and on the conditions following, that is to say : the tenant shall pay to the landlord all costs as between solicitor and client of and incident to such re-entry, and the landlord shall pay to the tenant such sum (if any) as shall be etiuivalent to nine-tenths of the premium or increased capital value of such premises accruing to the landlord by reason of such re-entry : saving always to the landlord his rights to damages for breaches of covenant. Sect. 47. — Arhitration Clause. Provided always, and it is hereby agreed and declared that if and whenever any dispute or question shall arise between the lessor and lessee, and their respective heii's, executors, administrators or assigns, touching these presents or anvthing herein contained, or the construction hereof, or the rights, duties or liabilities in relation to the premises, the matter iu difference shall be submitted and referred to two arbitrators or their umpire in all respects pursuant to " The Arbiti-ation Act, 1S89." Sect. 48. — Jsf!i(/nnient of a Lease (by Indorsement), Landlord In inr/ mnde a Party to give his Consent to the Assignment. Date and This Ixdextfre, made the day of , 18 — (»), Between the within- I'aities. named C. D. of the first part, the within-named A. B. of the second ]iart, and Testatum. j^_ p_ ^j^ i^^ ^ ^f ^^^ third part : Witnesseth, that in consideration of the sum stamp (o). ,-,f pounds sterling (o) now paid by the said E. F. to the said C. D. (the (in) As to notice before proceeding on tlie .assignor or tlie assignee is to pay the this proviso, sees. 14 of the Conveyancing quarter's rent. Act, ]881, and p. 353, ante. (o) As to tlie stamp, see Stamp Act, (?i) Tiie (late of assignment is frequently 1891, and sched. tit. "Conveyance." material : because on it depends whetlier Assignment of Lease. 975 receipt whereof the said C. D. cloth hereby acknowledge, and from the same doth release and discharge the said E. F., his executors, administrators and assigns). He the said C. I)., as beneficial owner (p) [with the consent in writing of the within-named A. B.. testified by his execution of these presents], Doth assign unto the said E. F., his executors, administrators and assigns. All [parcel's j, comprised in and expressed to be demised by the within-written indenture. Together with the appurtenances [except as within excepted (*/)]], And also the within-written indenture (;•) ; To hold the said [messuage and] premises hereinbefore expressed to be assigned unto the said E. F., his executors, administrators and assigns, henceforth for the residue now unexpired of the tei-m of j-ears expressed to be granted by the within-written indentui-e ; Subject nevertheless to the payment of the rent, and the performance and observance of the covenants and conditions in the within -written indenture reserved and contained, and on the lessee's part to be paid, performed and observed. ^Vnd the said E. F. doth hereby for himself and his assigns, covenant with the said C. D.. that he the said E. F., his executors, administrators or assigns, will henceforth pay the said yearly rent of £ , by the within-written indenture reserved and henceforth to become payable, and perform and observe all and every the covenants and conditions in the same indenture contained and on the part of the lessee, his executors, administrators or assigns, henceforth to be performed or observed : And also will from time to time and at all times here- after keep imlemnified the said C. D., his heirs, executors and administrators, and his and their estates and effects of, from and against all actions, suits, proceedings, costs, charges, damages, claims and demands whatsoever (including costs of any defence as between solicitor and client), which shall or may be incurred or sustained by reason or on account of the non-payment of the said rent or any part thereof, or the breach, non-])erfonnance or non-observance of the said covenants and conditions or any of them (s). In witness, &c. Attestatiuu. Btceipt for consideration. App. B. s. 48. Habendum. Subject, &c. Covenants by xVssignee to pay subse- tU-ieut Rent, and perfonn Lessee's Covenants, and indemnify Assignor therefrom, &c. Sect. 49. — Assiynmcut of Lease {not hy Indorsement). Date and Parties. Recital of Lease. This Inden-ture, made the day of . IS — , Between G. H. of the one part, and I. K. of, &c., of the other part. Whereas by an indenture of lease dated the day of , 18 — , and made or expressed to be made between A. B. therein described of the one part, and C. D. therein described of the other part, for the considerations therein mentioned the said A. B. did demise [and lease] unto the said C. D., his executors, administrators and assigns. All \_itarceh from ^rn.se] with the appurtenances, [except as therein is excepted] ; To hold the same unto the said 0. D., his executors, administrators and assigns, from the — — day of — — , 18 — , for the term of years, at the yeai'ly rent of , payable [quarterly], as in the said indentiu'e mentioned; and under and subject to the covenants and conditions therein contained, and on the part of the said C. D., his executors, administrators and assigns, to be performed and Mesne observed : And whereas [by divers mesne assignments and other acts in the -^^sigiiments. law, and ultimately] by an indenture dated the day of , 18 — , made or expressed to be made between ["the said C. D." or " E. F. therein described" of the one part, and the said Gr. H. of the other part]. All the [messuage, land and] premises comprised in and expressed to be demised by the said recited indenture of lease, with the appurtenances [except as in the same indenture is excepted], were assigned to and became vested in the said G. H. for the residue and remainder of the said term of years, subject to the payment of the rent, and the performance and observance of the covenants ( p) V>Y virtue of these words and s. 7 of the Conveyancing Act, 18S1, covenants on the part of the assignor are implied that the lease is valid, that the rent and cove- Bants have been paid and observed, that the assignor has right to convey, that the lease is free from incumbrances, and that the assignee shall qnietly enjoy ; al.-o for further assurance. iq) Omit these words, if there be no exception in the lease. (/•) If there be a fii'e policy, here insert an assignment thereof as in the next section, and alter the habendum as in that section. [s) See Mmdc v. Garrett, L. E., 5 Ex. 132 ; 39 L. .J., Ex. 69 ; ante, 272. 976 Appendix B. (conveyancing precedents). Testatum. Stamp ((). Operative Words. Fire Policy. App. B. s. 49. and conditions in the same indenture of lease reserved and contained, and ~ on the lessee's part to be paid, perfomied and observed : Ai^D "whereas the said I. Iv. has contracted with the said G. H. for the purchase of the said leasehold tenements and premises for the residue of the said term of years, subject as aforesaid, for the price or sum of £ ; Now this IjsDEXTURE WITNESSETH, that, in piu'suance of the said recited contract, and in consideration of the sum of pounds sterling; now paid by the said I. K. to the said G. H. (the receipt whereof the said Gr. H. doth hereby acknowledge, and from the same doth release and discharge the said I. K., his executors, administrators and assigns) : He the said G. H., as beneficial owner. Doth assign unto the said I. K., his executors, administrators and assigns. All [that messuage and land], and all and singular other the premises comprised in and expressed to be demised by the said recited indenture of lease, Together with the appurtenances [except as in the same indentiu-e is excepted] : [Axi> ALSO all that policy of insurance in the office. No. , whereby the said buildings, or some part thereof are insured against loss or damage hj lire as therein expressed, and the full benefit and advantage thereof, and all moneys insured and to become payable under or in respect thereof ; with power to the said I. K., his executors, administrators and assigns, at his or their own expense to sue and give receipts, releases and other discharges for the said moneys or any jsart thereof in the name or names of the said G. H., his executors or adminis- trators (x) : To HOLD the said [messuage, land and] j^remises hereinbefore expressed to be assigned (except the said policy) unto the said I. K., his executors, administrators and assigns, henceforth for the residue and remainder now to come and unexpired of the said term of years, expressed to be granted by the said recited indenture of lease ; Subject nevertheless to the payment of the rent, and the perfoiTQance and observance of the covenants and conditions in the same indenture reserved and contained, and on the lessee's part to be paid, porfoiTned and observed ; [And to hold the said policy, unto the said I. K., his executors, administrators and assigns, absolutely]. Add covenants hy assignee, correspond irn/ with those ante, p. 975, suhstitutin „' ,_<. i Parties to of Property , and Lease. ^^^^'^'^'l- > ^^''^- Date of Mort- gage. Names and Addresses of Parties to Mortsaae. Term cou- Amount veyed by secured Mort- by Mort- Particulars of any Transfer of Mortgage, with Dates and Names and Descriptions of Parties thereto. ( 992 ) APPENDIX D. FORMS OF PROCEEDINGS IX DISTRESS. NO. PAGE I NO. PAGE 1. Warrant to distrain in a House | 10. Request to sell before Expiration for Eent 992 2. Warrant to distrain on a Farm for Eent 992 3. Inventory of Goods distrained ... 992 4. Kotice of Distress for Rent 993 5. Notice of Distress of Growing Crops 993 6. Request to withdraw Distress ... 994 7. Requirement of Appraisement ... 994 8. Request of Removal to Auction Room 994 of Extended Time 995- 11. Consent to Possession for more than 5 days 995 12. Appraisement of Distress 995 13. Notice to Sheriff, Rent due 995 14. Notice from Sheriff to Execution Creditor 99& 15. Notice to High Bailiff of County Court .'. 996 16. Declaration by Lodger to save 9. Reque.st of Extension of Time to his Goods from Distress 997 replevy in 995 ' Prockedings on Distresses. (1.) Warrard to distrain in a House for Rent [ante, 495). To Mr. E. S. my baiUff. I hereby authorize ami require you to distrain the goods and chattels {a) in and upon the [house] and premises of C. D., situate and being [No. , street], in the pari.sh of , in the county of , for £ , being quarters' rent, due to mo for the same [at Lady-day, Midsummer-day, Michaelmas-day or Christmas-day last, us the case mat/ he; or "on the day of last"] ; and to proceed thereon for the recovery of the said rent as- the law directs, Biit you are hereby expressly prohibited from taking any property not legally liable to a distress for rent. Dated this day of 18 . (Signed) (b) A. B. of \^or A. B. of by P. Q,., his agent]. (2.) Warrant to distrain nn a Farr)i for Rent. To Mr. E. S. my bailiff. I hereby authorize and require you to disti'ain the goods and chattels [and also the cattle and growing crops], in and upon the farm, lands and premises of C. D., situate and being at in the parish, etc. [its in Xo. 1, to the e«d]. (3.) Inventory of Goods distrained {ante, 521). An inventory of the goods and chattels [cattle and growing crops] dis- trained by [E. S. of as bailiff of and for] A. B. of , esquire on the (i/) "Of C. D." maybe here introduced, agent having sufficient express or implied if wished for any special reason; but in authoritj^ ; Trent v. Hunt, 9 Exch. 14 ; ordinary cases the words would do more 22 L. J., Ex. 318. It does not require a harm than good. stamp ; Pi/lc v. Partridge, 15 M. & W. 20. {b) This warrant should be signed by the The bailiff' must be " certificated " ; see person entitled to receive the rent ; ^((W^r's ante, 493. case, 1 Leon. 50 ; 2 Leon. 215 ; or by his Appendix D. (fokms in distress). 993 clay of , 18 , in and upon the [house or farm, lands] and premises Arp. D. s. 3. of C. D., situate and being [No. , street], in the parish of , in the county of , for £ , being quarters' rent due to the said A. B., [at last; or " on the day of last""^. 1. In front room on (/round floor. — One dining-table, one side-board, twelve chairs [describe each article in this room ■intended to he distrained^. 2. In back room on ground floor. — \_Here describe each article in this room intended to be distrained.^ 3. 4, 5, &c. — \_Here describe in like manner each article intended to be distrained in the ^^ front room on first floor " — " back room on first floor" — ^^ front room on second floor " — " back room on second floor," &c. — ■^'' front attic " — " hack attic " — ^^ front kitchen " — " hack kitchen" — '' wash-house" — " scidlery" — " luine cellar " — '■^ coal cellar " — " yard " — " garden " — • " coach-house " — ■ " stables " — - " barns," &c. tfec] In the Fields. 1. In the field or close called or known as " Greenacre :" cows, calves, oxen, bulls, sheep, lambs, horses, mares, geldings, colts, fillies, pigs [«s the case may &e]. 2. In the field, or close called or knoivn as \_n(:ime'] : haystacks, stacks of [wheat] ; about acres (more or less) of growing crops of [wheat or barlej", oats, potatoes, peas, beans, as the case may 6e]. 3. Describe in like manner each close and the articles therein intended to he distrained. At the end of the list may [if wished) he added, the following words or to the like effect, viz. : " And all other goods, chattels and effects on the said premises," or " and any other goods that may be found in and about the said in'emises to pay the said I'ent and expenses of this distress " (e). But it would be too indefinite and incorrect to say, "And all other goods, chattels and effects on the said premises that may he required in order to satisfy the above rent, together with all necessary expenses " [d). Dated this day of , 18 . (Signed) E. S., bailiff of the said A. B. {_or A. B. of ]. (4.) Notice of Distress for Rent{e) {ante, 509). To Mr. C. D., and all others whom it may concern. Take notice that I [R. S., as bailiff of and for A. B., esq., jour landlord], have this day distrained on the premises in your occupation or possession, named in the inventory [above written or hereunto annexed], the [cattle], goods and chattels mentioned in the said inventory for £ being- quarter's rent due to [me, or the said A. B.], at last \_or on the day of last], for the said premises : And unless you pay the said rent, with the charges of distraining for the same, within five [or such other number of days not exceeding fifteen as you may name in a request in writing in that behalf] days from the service hereof, the said [cattle] goods and chattels will be sold according to law. [_If cattle or goods removed, mention the place thus, " And take notice that the said cattle have been removed to and are now in the common pound in and for the j^arish of , in the county of ."] Dated this day of , 18 . (Signed) E. S., of Bailiff of the above-named A. B.. [or A. B. of ]. (5.) Notice cf Distress of Growing Crops, tfcc. [ante, 471). To Mr. C. D., and all others whom it may concern. Take notice that I [E. S., as bailiff of and for A. B., esq., your landlord], have this day distrained on the [farm, lands and] premises in your occujiation (c) Wakeman v. Lindsey, 14 Q. B. 625 ; L. J., Ex. 162. 19 L. J., Q. B. 166. But these words may {r) To be written at the foot of a true •perhajis make the distress excessive. copy of tiie inventory, or such true copy to {d) Kirhy v. Harding, 6 Excli. 234 ; 20 be annexed to tliis notice. L.T. 63 994 Appendix D, (for:ms in distress). App. D. s. 5. or possession, mentioned in the inventory [above written or hereunto annexed], the [cattle, goods and chattels, and also the] growing crojjs mentioned in the said inventory for £ , being quarters' rent due to [me or the said A. B.], at last [or on the day of last] for the said [farm, lands and] premises : And unless you pay the said rent, with the charges of distraining for the same [within iive days from the date hereof, the said cattle, goods and chattels will be appraised and sold according to law, and] I shall [_or if signed by the bailiff say, " the said A. B. will "] proceed to cut, gather, make, cure, carry and lay up the said crops, when ripe, in the barn or other proper place on the said premises, and in convenient time sell and dispose of the same in or towards satisfaction of the said rent, and of the charges of such distress, api^raisement and sale, according to law. Dated this day of , 18 . (Signed) A. B. of \or R. S. of Bailiff of the above-mentioned A. B.] (6.) Bequest of a Tenant to his Landlord to withdraio a Distress for Rent, ivith Liberty to make a second Distress {f) {ante, 512). To A. B., esq. Sir, I hereby request you, for m.y accommodation, to withdi-aw the distress for rent made by you on the [farm, land and] premises, situate at , in the county of , now in my occupation as yoiu' tenant : And in consideration of your so doing, I do hereby consent, promise and agree that it shall and may be lawful for you at anj' time [afterwards, or after the day of next] to make a second distress for the said rent, of for so much thereof as shall for the time being remain unpaid, and for the exjienses of and incident to such second distress ; [And I will also pay you on demand all expenses incurred of and incident to the said first distress to the time of its being withdrawn for my accommodation as aforesaid]. Dated this day of , 18 . Yours, «S:c. Witness, E. F., of (y). C. D. (7.) Requirement by Tenant or Owner of Appraisement {ante, 513). To A. B., esq. Sir, I hereby require you to cause the [cattle], goods and chattels which you have distrained for rent to be appraised as required by the Act passed in the second year of the reign of their Majesties Kijig William and Mary, chapter five. Dated this day of , 18 . Yours, &c. C. D. (8.) Request by Tenant or Owner of Removal of Distress to Auction Room for Sale (ante, 513). To. A. B., esq. Sir, I hereby request you to remove the [cattle], goods and chattels which you have distrained for rent to a public auction room [or to the iiremises of Messrs. , Xo. , street] for sale. Dated this day of , 18 . Yours, &c. CD. (/) See other similar forms in Hill v. that no agreement stamp is necessaiy. Jlamm, 5 M. & G. 789 ; Fishicick v. {(j) An attesting Avituess is unnecessary. Milncs, 4 Exch. 825 ; which cases show Appendix J), (forms in disteess). 995 (9.) Bequest of Extension of Time to Ei'pJevy in [ante, 510). App. D. s. 9. To A. B., esq. Sir, I hereby request that the period of five days within which but for this request I am entitled to replevy the [cattle], goods and chattels which you have distrained for rent be extended to [_Stute number of dai/s not exceeding Jffteen'], from the date of your distress. And I beg to enclose my promissory note for £ [«?• the promissory note of CD. for £ ] as security for any additional cost. Dated this dav of , 18 . Tours, E. F. (10.) Bequest of Tenant to Sell before the Extended Time [ante, 510). To A. B., esq. Sir, I hereby request you to sell the [cattle], goods and chattels which you have distrained for rent at any time before the expiration of the extended time within which I should, but for this request, be entitled to replevy them. Dated this day of , 18 . Youi's, CD. i (ll-) Consent of Tenant to the Landlord or his Bailiff continuing in Possession under a Distress for more than Five Days. To A. B., esq. [or to Mr. E. S., baiHff of A. B., esq.] Sii-, I hereby request you not to remove the goods and chattels which you have distrained and impounded for rent on the premises, situate at , in the coiuity of , now in my occupation as [your tenant or tenant of the said A. B.] ; but to keej) the said goods and chattels in the place where they are now impounded, until the day of next inclusive, for my accom- modation, and to give me the opportunity of obtaining money to pay the said arrears of rent with expenses of the distress ; all extra expenses occasioned by keeping possession as aforesaid to form part of the expenses of and incident to the distress. Dated this day of , 18 . Youi's, &c. Witness E. F., of ' {h). C. D. (12.) Appraisement (») {ante, 512). "We, the above-named L. M. and N. 0., having viewed the [cattle], goods and chattels mentioned in [this or the within written] inventory, do appraise and value the same at the sum of pounds shillings and pence. As witness oirr hands the day of , IS . (Signed) L. M. 1 . ^ '^ ' N" o "-Appraisers. (13.) Notice to Sheriff under 8 Ann. c. 14, s. 1, of Bent due to Landlord of Execution Debtor [ante, 531). To the sheriff of the county of , and his under-sheriff and bailiffs, and aU others whom it may concern : Take notice that the sum of £ is now due and owing to [me or to I. K. of esq.] from C D., of , in the county of , for [one year's {h) Au attesting witness is luinecessary. {i) Not necessary unless required by tenant ; ante, 513. 63—2 996 Appendix D. (forms in distress). App. U. s. Id. ^j, Qj^g half-year's or one quarter's] rent, due on the day of last, of the premises in his occupation at aforesaid ; upon which premises, as I am inf oiTned, you have seized and taken in execution certain goods and chattels ; And you are hereby required not to remove any of the said goods and chattels from off the said i^remises until the said arrears of rent are paid, pursuant to the statute in such case made and provided. Dated this day of , 18 . Yours, &c. I. K. of ■ [or E. F. of Agent for I. K. of , esq. J (14.) Notice from Sheriff to Execution Creditor of Rent being due from the Defen- dant, mid rcquiriny Fayment thereof by such Creditor, 2)ursuant to 8 Ann. c. 14, s. 1 {ante, 623). In the High Court of Justice, Division. Between A. B., plaintiff, and CD., defendant. Take notice, that the sum of £ is due and owing from the above-named defendant to his landlord I. K., of [&c. esq.] for [one year's or one half-year's or one quarter's] rent, due on the day of last, for and in respect of the [hoiise or fanu, land and] premises situate at , in the county of , now in the occupation of the said defendant, and upon which certain goods and chattels have been seized by the sheriff of shire under the writ of fieri facias issued in this action [and the said sheriff has had notice of such arrears of rent, (A-)] : Now 1 do hereby, as the agent of the said sheriff and on his behalf, give you notice that ludess the above-named plaintiff do forthwith pay the arrears of rent due to the said landlord, either to him or his bailiff, pursuant to the statute in such case made and provided, the said sheriff will withdraw from possession of the said goods and chattels under the said writ. Dated this day of , 18 . Yours, &c. L. M. of , Agent for the sheriff of shire. To the above-named plaintiff : and to ) Mr. , his solicitor or agent. J (15.) Notice to tie Bailiff of a County Court, pursuant to County Courts Act, i888, s. 160 {ante, 534). To the high bailiff of the County Court of , holden at , and to his bailiff and officers, and all others whom it may concern : Take notice, that C. D., whose goods you have taken in execution under a ■warrant from the said County Court, holds the [house or apartments] in which the said goods were taken as tenant thereof to [me or to I. K. of esq-] under a lease for years [and three quarters of another year wanting five days] from the day of , 18 , or under a tenancy from year to year, from the day of last (/), or under a tenancy from month to month from the [frut) day of each month, or under a tenancy from week tO' week from each [Saturday'] at the yearly rent of £ payable [by equal half- (k) Omit this when inaccurate, Exjiress inspect the lease, and ohtain legal proof of notice to the sheriff appears to be inineces- the arrears due (ante, .532). sary ; it is sufficient if he knows of tlie (/) A tenancy from year to year rccom- arrears of rent (ante, 531). He should meuces annually (ante, 230). Appendix D. (forms in distress). 997 yearly, or quarterly, payments, on the day of , &c., state days of 2)ayment'], or at the monthly rent of £ payable [in advance (;;i)] on the day of each month, or at the weekly rent of £ payable [in advance (m)] on each [Saticrdai/^ : And I now [as the agent of and for the said I. K., and on his behalf,] claim the sum of £ for arrears of the said rent for(;i) one year [or two quarters] ending on the day of last ; or for two months [or foiu' weeks] ending on the day of last, as the case may he, which said rent or sum of £ now remains in arrear and unpaid. Dated this day of , 18 . (Signed) I. K. of [or C. D. of Agent for the above-named I. K.] App. D. S.15. (16.) Declaration by Lodyer (o) [ante, 480). To [name of superior Landlord, or his Bailiff, as the case may 6e]. Sir, I, John Smith, occupying as lodgings 5 rooms in No. 13 Brick Street, do hereby declare that [name of immediate landlord] my landlord has no right of property or beneficial interest in the furniture, goods and chattels, distrained [or threatened to be distrained] for rent alleged to be due to [name of superior landlord], and of which an inventory is hereto annexed, but that such fiu'niture, goods and chattels are my property [or in my lawful possession]. I owe [name of immediate landlord] £ on account of rent from to [orno rent]. The inventory referred to in this declaration is as follows : To Inventory. 1 Pianoforte, 4 Sofas, 2 Timepieces, &c., &c. [state articles with precision']. Yours, &c. J. S. {m) Omit these words if rent not payable in advance. (n) Here say "part of," if necessary, and add (just before the date), "tlie residue of the said [year's] rent having been paid." (o) This declaration need not state that no rent is due if such be the case, nor that the declarant is a lodger [Ex 2Mrtc Harris, 16 Q. 13. 1). 130 ; 34 W. K. 132), but it seems best to state the facts as they are, if accurately known. ( 998 ) APPENDIX E. FORMS OF PROCEEDINGS IN ACTIONS. Sect. page 1. Proceedings in Replevin (before Action) 998 (1.) Notice of Sureties 998 (2.) Ditto, another form 999 (3.) Affidavit of JustiJieation 999 (4.) Kotice of Goods intended to be replevied 999 (5,) Bond in Replevin (High Court) 1000 (6.) Bond in Replevin (County Court) '.. 1000 (7.) Warrant to High Bail iflf 1001 2. Proceedings in High Court 1002 (a.) Indorsement on Writs 1002 (1.) Rent 1002 (2.) Use and Occupation 1002 (3.) Replevin 1002 (4.) AVrongful Distress 1002 (5.) Ejectment 1002 (6.) To establish Title and for Rent 1002 (7.) Fire Insurance 1002 (8.) Repair 1002 (9.) Farming 1002 (10.) Breach of Contract to Let or Take 1003 (11.) Mesne Profits, &c 1003 (b.) Pleadings 1003 (1.) Breach of Covenant for Repair 1003 (2.) Recovery of Land and Mesne "Profits 1003 (3.) Wrongful Distress 1003 (4.) Recovery of Land, with Counterclaim 1004 (c.) Other Forms 1005 (1.) Judgment in Default of Appearance 1 005 (2.) Praecipe for Writ of Possession 1005 (3.) AVrit of Possession 1005 Sect. page 2. (c.) Other Forms — conlinucd. (4. ) Writ of Second Deliver- ance 1Q05 (5.) Return to do 1006 (6.) Do., do., where only part delivered 1006 3. Proceedings in County Court 1006 (a.) Reijlevin .' 1006 (1.) Particulars of Goods distrained 1006 (2.) Judgment for Plaintiff.. 1006 (3.) Judgment for Defendant 1007 (b.) In Rejjlevin removed to High Court 1007 (1.) Affidavit for Certiorari 1007 (2. ) Do. when Title in ques- tion 1008 (3.) Order for Certiorari 1008 (4.) Bond on Removal 1008 (5.) Memorandum of Deposit 1009 (6.) Writ of Certiorari 1009 (7.) lieturn of County Court Judge to do. ..' 1010 (8.) Notice of Certiorari 1010 (c.) Special Action for Recovery of Tenements 1011 (1.) Summons to Person holding over 1011 (2.) Summons to Person in Arrear for Rent 1011 (3.) Order for Possession (Rent Unpaid) 1012 (4.) Order for Possession (Premises held over) ... 1012 (5.) Warrant of Possession... 1013 (d.) Summons in Ejectment 1013 4. Forms under Small Tenements Recovery Act, 1838, 1 & 2 Vict. c. 74 1014 (1.) Complaint before Justices ... 1014 (2.) Warrant for Possession 1014 Order XXIX., Rule!, Sect. 1. — Forms of Proceedings on a Eeple\^ (before Action). (1.) Notice of Proposed Sureties {a). \_Form 120 in C. C. Eiiles, 1889.] Xo. of plaint . In tlie County Court of , holden at Between A. B., plaintiff, and C. D., defendant. Take notice, that the sureties whom I propose as my security in the above action [_here state the proceeding wliich has rendered the sureties necessary'] axQ [liere (a) This seems scarcely applicable to an the action is to be brought, but assumes it intended replevy : especially where the to be already begun in the County Court, action of replevin is to be brought in the (See next form.) High Court. It does not mention where Forms in Eepleyin (before action). 999 state the full names and additions of the sureties, luhether housekeepers or free- App, E. s. 1. hvhlers, and their residences for the last six months, therein mentioning the county or city, places, streets, and numbers, if any~\. Dated this clay of , 18 . To the \_Signature of person sending notice.'} (2.) Notice of Sureties [another suggested form). \TitIe of court and cause as in previous forms.} Take notice, that the sureties whom I pi'opose as my secui'ity for the due prosecution of an action of replevin against the above-named C. D. in her Majesty's High Covu^t of Justice are [see directions as in last form]. Dated this day of , 18 . To the above-named C. D. and\ to the Registrar of the said'. \_Signature of person sending notice.} County Court. ) (3.) Affidavit of Justification. \_Form 121 in C. C. Rules, 1889.] [Title of court and action as ante, No. 1 .] I, , of , one of the sureties for the defendant (i), make oath and Order XXIX., say, that I am a housekeeper [or freeholder, as the case may ie], residing ^^^^ ^' [describing particularly the county or city, the street or place, and the number of the house, if any}, that I am worth property to the amount of £ [the amount required by the practice of the Court} over and above what will pay my just debts [if security in any other action or for any other jjurpose, add, and every other sum for which I am. now security], that I am not bail or security in any other action or proceeding or for any other person [or if security in any other action or actions, add, except for C. D., at the suit of E. P., in the Court of in the sum of £ , for G. H., at the siiit of I. K., in the Coru't of in the sum of £ , specifying the severed actions luith the Courts in which they are brought and the sums in ivhich he has become bound} ; that this my property, to the amount of the said sum of £ [and if security in any other action, &c., over and above all other sums for which I am now security as aforesaid], con- sists of [here specify the nature and value of the property in respect of luhich the depjonent proposes to become bondsman as follows, stock in trade in my business of carried on by me at of the value of £ , of good book debts owing to me to the amount of £ , of furniture in my house at of the value of £ of a freehold [or leasehold] farm of the value of £ situate at occupied by or of a dwelling-house of the value of £ situate at occupied by or of other property, particidarizing each description (f property, with the value thereof}, and that I have for the last six months resided at [describing the place of such residence, or if he has had more than one residence during that period, state in the same manner as above directed}. (4.) Notice to Distrainer of Goods {or Ccdtle) intended to be replevied. [Form No. 243 in C. C. Mules, 1889.] In the County Court of , holden at Take notice, that A. B. of, &c., whose goods [or cattle] you have distrained, intends to rfejDlevy the same, and has proposed as liis sureties for the due {b) The prescribed form says "for the more proper to say "for the plaiutiff in defendant," but in replevin it would seem this action of replevin." 1000 Appendix E. (forms in actions). App. E. s. 1. prosecution of an action of replevin against you in tlie [Ziere mention the Court "^ in tuhich the action is to he brought^, E. F. of, &c., and Gr. H. of, &c., and that if you have any valid objection to make to the proposed sureties, or either of them, you must attend at [here insert place of office of Registrar'], on the day of , 18 , at the hour of , when the bond will be submitted to me for approval. J. K, Eegistrar of the Court. Houi's of attendance at the oflB.ce of the Eegistrar [ place of office] from ten tUl four o'clock except on [Jiere insert the day on ivhich the office will be closed] when the office will be closed at one o^ clock. * The distrainer. I approve of this bond. I. K., (l.s.) Registrar. This bond does not reqn ire a stamp (c). 51 & 52 Vict. c. 43, s. 109. (5.) Bond in Replevin tvhere Action to be commenced in High Court of Justice. IForm No. 244 in C. C. Rules, 1889.] Know all men by these presents, that we, A. B. of, &c., 0. D. of, &c., and E. F. of, &c., are held and firmly bound unto G. H. (*) of, &c., in £ to be paid to the said G. H. or his certain attorney, executors, administrators, or assigns, for which pajTnent to be made we bind ourselves and each and every of us, in the whole, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this day of, , one thousand hiuidred and Whereas the above-named C. D. and E. F., at the request of the said A. B., have agreed to enter into the above-wiitten obligation, and his security has been approved of by , the Eegistrar of the County Coiu't of holden at , as appears by his allowance in the margin hereof ; Now the condition of this obligation is such, that if the above-bounden A. B. do and shall within one week from the date of the said obligation commence an action of replevin against the above-named G. H. in the High Court of Justice, for taking and unjustly detaining of certain goods and chattels of the said , to wit, [_here insert the description of the goods and chattels], and prosecute such action with effect and without delay, and unless judgment be obtained thereon by default, do and shall prove before the said Court of that he the said had good ground for believing that the title to the here- ditament in resi)ect of which the distress was made was in question \_or, that the title to a toll was in question], [or, that the title to a market was in question], l_or, that the title to a fair was in question], [or, that the title to a franchise ■was in question], \_or, that the alleged rent or damage in respect of which the distress was made exceeded twenty poimds], and do and shall also make return of the said goods and chattels, if return thereof shall be awarded, then this obligation shall be \oid and of no effect, otherwise shall be and remain in full force. A. B. (l.s.) C. D. (L.s.) E. F. (l.s.) Signed, sealed, and delivered by the above bounden in the presence of Note. — If a deposit of money be made, the m,emorandum, thereof should folloio the terms of the conditions of the bond, and luill not require a stamp. (6.) Bond in Replevin luhere Action to be commenced in County Court. \_Form No. 245 in C. C. Rules, 1889.] Know all men by these presents, that we, A. B, of, &c., C. D. of, &c., and The distrainer. E. F. of, &c., are held and firmly bound unto G. H. (*) of, &c., in £ to (c) As to recpurement of stamp, see note (d), post, to Form (6). Forms in Eeplevin (before action). 1001 ■s. 1. This bond does not require a stamp (d). be paid to the said G. H., or his certain attorney, executors, administrators, or App. E. assigns, for which payment to be made we bind oiu'selves and each and every of us, in the whole, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this day of , one thousand eight hundred and "SMiereas the above-named C. C. and E. P., at the request of the said A. B., I approve of have agreed to enter into the above- written obligation, and this securitv has ^'"^ ''°"'^- ^ been approved of by , the Registrar of the County Coiu-t of holden (l.s.) Reoistrar. at , as appears by his allowance in the margin hereof : Now the condition of this obligation is such, that if the above-bounden A. B. do and shall within one month from the date of the said obligation commence an action of replevin against the above-named G. H. in the County Coiu-t of holden at for taking and unjustly detaining of certain goods and chattels of the said , to wit, \_here insert the description of the goods and chattels'], and prosecute such action with effect and without delay, and do and shall also make retiu-n of the said goods and chattels, if return thereof shall be awarded, then this obligation shall be void and of no effect, otherwise shall be and remain in full force. A. B. (L.s.) C. D. (L.s.) E. E. (L.s.) Signed, sealed, and delivered by the above bounden in the presence of Note. — If a deposit of money he made, the memorandum thereof should folloiu the terms of the conditions of the bond, and luill not require a stamp. (7.) Warrant to High Bailiff to RepJevy. {form No. 246 in C. C. Mules, 1889.] In the County Court of holden at Whereas hath given security as well to commence his action of replevin against for the taking and unjustly detaining of certain goods and chattels {or cattle] of the said that is to say ; and prosecute such action with effect and without delay, as also to retui'n the said goods and chattels if return thereof shall be adjudged by law : Now, as Eegistrar of the said County Court, and by virtue of the provisions of the Coimty Courts Act, 1888, I hereby autho- rise and direct you without delay to replevy and deliver the said goods and chattels {or cattle] to the said and forthwith to return to me this warrant and what you shall have done under the same. Dated the day of , 18 . Eegistrar of the Court. To the High BaiHff of the Court. In obedience to this warrant, I have replevied and caused to be delivered to the within-named the within-mentioned goods and chattels {or cattle]. Dated this day of , 18 . High BaiHff. {For Judgment for Plaintiff in Replevin, see Form 34.] (d) Note by Editor. — The marginal note *'This bond does not require a stamp," has, in Heywood's Annual County Court Practice for 1898, Vol. I., at p. 846 (as in many previous editions), been replaced by the marginal note, "[This bond, under the Stamp Act, 1891, requires a stamp — Ed.],'' and see note (k) at p. 438. The '' General Exemptions from all Stamp Duties " at the end of Schedule I. to the Stamp Act, 1891, exempts replevin bonds given to "sheriffs and other persons i/i Ireland," while the corresponding exemptions of the repealed Stamp Act, 1870, exempted replevin bonds given "to sheriffs and other persons " generally. The general imposition of duties under which replevin bonds, if not exempted, come (see Sched. I., tit. Bond), is subject, under s. 4, to exemp- tions under any other Act, but it is sub- mitted that Form 245 under the County Court Piules, 1 889, is not an Act within tlie meaning of such 4th section. 1002 Appendix E. (fokms in actions). Afp. E. s. 2. Sect. 2. — Proceedings in High Court of Justice. (a) Indorsement of Claims on Writ of Summons. E. S. C, App. A., Part III., Sects. II., III., IV. (1.) Bent. The plaintifi's claim is for £ for arrears of rent. (2.) Use and Occupation. The plaintiff's claim is for £ for the use and occupation of a house. (3.) Replevin. The plaintiff's claim is in replevin for goods vprongfuUy distrained. (4.) Distress. The ijlaintiff's claim is for damages for improperly distraining (e). (5.) Ejectment. The plaintiff's claim is to recover possession of a house, No. in Street, [or of a farm called Blavkacre,'] situate in the parish of , in the county of . (6.) To estahlish Title and recover Bents. The plaintiff's claim is to establish his title to [here describe propei'ty'] and to recover the rents thereof. (7.) Fire Insurance. The plaintiff's claim is for damages for breach of a covenant to insure a house. (8.) Bepair. The plaintiff's claim is for damages for breach of contract to keep a house in repair. (9.) Farming. The plaintiff's claim is for damages for breaches of covenants contained in a lease of a farm. (e) To this Form there is the following excessive or irregular, and whether the note : — chiim be for damages only, or for double "This form shall be sufficieut whether value." the distress complained of be wrongful or Peoceedings in High Court of Justice. 1003 (10.) Breach of Contract to Let or Take. App. E. s. 2. The plaintiff's claim is for damages for breach of contract to let [or take'] a house. (11.) Mesne Profits, &c. \_A(ld to Indorsement where Claim is to Land or to establish Title or both.] And for mesne profits. And for an account of rents or arrears of rent. And for breach of covenant for [_rej)airs']. (b) Pleadings. (1.) Breach of Covenant for Repair {B. S. C, App. C, Sect. V., No. 9). In the High Court of Justice, Division. 18 . B. No. . Writ issued _ _ 18 . Between A. B., plaintiff, and CD., defendant. Statement of Claim. 1. By a repairing covenant contained in a lease under seal from the plaintiff to the defendant, dated the 1st of January, 1876, of a house No. 401, Piccadilly, for seven years from the 25th day of December, 1878, the defendant covenanted to keep the premises in such repair and condition as therein mentioned. . 2. The premises were duiing the term out of such repair as was required by the covenant. 3. They were jdelded up out of such repaii' at the exjiiration of the term. 4. Particulars of dilapidations were delivered to the defendant's solicitor on the day of ,18, and exceed thi'ee folios. The plaintiff claims £ Place of trial, (Signed) Delivered (2.) Becovery of Land and Mesne Profits [B. S. C, Ax>p. C, Sect. 7). The plaintiff is entitled to the possession of a farm and premises called Church Parm, in the parish of St. James, in the county of Surrey, which was let by the plaintiff to the defendant for the term of three j-ears from the 29th of September, 1883, which term has exjoired [or as tenant from year to year from the 29th September, 1883, which said tenancy was diily determined by notice to quit expii'ing on the 29th September, 18 ]. The plaintiff claims possession and 50/. for mesne profits. Place of trial, Surrey. (Signed) Delivered (3.) Unlaivful, Excessive, and Irreyular Distress. 1. The plaintiff was tenant to the defendant of a farm and i:iremises called Church Farm at the rent of 100/, a year payable quarterly. 2. On the day of , 18 , the defendant wrongfully distrained and 1004 Appendix E. (forms in actions). App. E. s. 2. sold goods of the plaintiff to the value of 300/. for jiretended arrears of the said rent, whereas no rent was due to the defendant. 3. The said j^retended arrears, if due, amounted to lot. only. 4. The said goods were not removed to a public auction-room, for sale, nor were they sold for the best price which could have been realized for the same. The plaintiff claims : Double the value of the goods so sold, or, in the alternative, 200/. for excessive distress and 100/. for irregular distress. Place of trial, Shrewsbury. (4.) Recovery of Land and Mesne Profits, tuith Counter-claim, In the High Court of Justice, Division. 18 . B. No. . Writ issued of 18 . Between A. B., plaintiff, and C. D., defendant. Statement of Claim. 1. On the day of 18 , the plaintiff let to the defendant a house No. , street, in , as tenant for fourteen years at the yearly rent of £ , payable quarterly, by a lease containing a covenant not to convert the said house into a shop, with a proviso for re-entry on breach thereof, the tenancy to oonnnence on the day of 2. The defendant has converted the said house into a butcher's shop, and the said house is now so used. The plaintiff' claims : 1. Possession of the house. 2. £ for mesne profits from the day of The plaintiff proposes that this action should be tried in In the High Court of Justice, Division. 18 . B. No. . Between A. B., plaintiff, and CD., defendant. The Defence and Counter-claim cf the above named C. D. 1. The plaintiff, A. B., by writing dated the day of and signed by him, granted to the defendant C. D. leave to convert the said house mto a butcher's shop. 2. By the said writing the plaintiff further agreed to repay to the plaintiff one-half the cost of the said conversion, and also to extend the defendant's lease for a fiu'ther period of seven years. 3. By way of counter-claim the defendant claims to have the sum of 123/. 4s. 6(/., being one-half the said cost, repaid to him, and to have an extended lease granted to him accordingly. For Another Case. The plaintiff has given no notice to the defendant, in pui'suance of the 14th section of the Conveyancing and Law of Property Act, 1881, specifying the breach of covenant complained of. Th e Bcphj of ih c PJa in t iff A . B. The plaintiff joins issue upon the defendant's defence and counter-claim. Proceedings in High Court of Justice. 1005 (c) Other Forms. App. E. s. 2. 1.) Judgment in DefunU of Appearance in Action for Recovery of Land. {R. S. C, App. F., No. 3.) In the High Court of Justice, Division. 18 . B. Xo. . Between A. B., plaintiff, and C. D. and E. F., defendants. of . 18 . _ No appearance having? been entered to the wi-it of summons herein, it is this day adjudged that the plaintiff recover j)ossession of the land in the said writ mentioned. (2.) Praecipe for Writ of Possession. {R. S. a, App. G., No. 7.) In the High Court of Justice, Division. 18 . B. Xo. . Between A. B., plaintiff, and C. D. and others, defendants. Seal a writ of possession directed to the sheriff of to dehver possession to A. B. of Judgment dated day of (3.) Writ of Possession. {R. S. C, App. H., No. 8.) In the High Court of Justice, Division. 18 . B. Xo. . Between A. B., plaintiff, and C. D. and others, defendants. YiCTOEiA, to the sheriff of , greeting : A\Tiereas lately in oiu" High Coiu't of Justice, by a judgment of the division of the same court, A. B. recovered [en- E. F. was ordered to deliver to A. B.] possession of all that with the appurtenances in your bailiwick : Therefore we command you that you omit not by reason of any liberty of your county, but that you enter the same and without delay you cause the said A. B. to have i:)ossession of the said land and premises with the apiJiu'tenances ; and in what manner you have executed this oiu" writ make appear to the judges of the division of oiU" High Coru't of Justice immediately after the execution thereof, and have you there then, this writ. Witness, &c. (4.) Writ of Second Deliverance (/). YiCTOElA, by the grace of God of the United Ivingdom of Great Britain and Ireland Queen, Defender of the Faith, To the Sheriff of greeting : If A. B. shall make you secure of prosecuting his claim, and also of returning the [cattle, goods, and chattels, &c.] which were lately adjudged to C. D. in our High Court of Justice on account of the default of the said A. B., if a retiu'n thereof shall be adjudged : We command you that if by virtue of our WTit of (/) This and the two following forms are not iu the Rules of the Supreme Court. 1006 Appendix E. (forms in actions). App. E. s. 2. retorno habendo to you tliereupon before directed, you have caused the said [cattle, &c.] to be returned to the said C. D., then that you cause them to be re-delivered, to the said A. B., and put by gages and safe pledges the said C. D., that he be before our said High Court of Justice, at Westminster, on Ithe return day of the ivrit'\, to answer the said A. B. in an action of replevin for the taking and unjustly detaining the [cattle, goods and chattels] aforesaid, and have you there the names of the pledges and this writ : Witness ourself at Westminster, the day of , in the year of oui- reign. (5.) Return to Writ of Second Deliverance. By virtue of this writ to me directed, I have caused to be delivered to the within-named A. B. his [cattle, goods and chattels] within mentioned, as I am within commanded. The j)ledges within mentioned are , and The answer of , esq., sheriff. (6.) The like, tuhere ordij part of the Goods, cfcc. could he delivered. By virtue of this writ to me 'directed, I have caused to be delivered to the within-named A. B. [descrihe the c/oods re-delivered], part of the [cattle, goods and chattels] within mentioned, being all of the said [cattle, goods and chattels] which are to be formd in my bailiwick. The pledges within mentioned are and The answer of , esq., sheriff. Sect. 3. — Proceedings in the County Court. (a) Proceedings in Replevin. (1.) Particulars of the Goods distrained, required on entering a Plaint or Replevin. No. of plaint (when knotvn). In the county court of holden at Between A. B. , plaintiff, and C. D. and E. S., defendants. The following are the particulars of the [cattle, or goods and chattels, &c.] taken imder a distress for alleged arrears of rent by C. D. [and E. S., as his bailiff] at in county of , and within the district and jurisdic- tion of this court, and with respect to which I [cr the said A. B. doth] now enter my jilaint in replevin in the said coiirt and claim the siun of pounds shillings damages for their detention against sureties and pledges, until, &c. \_Here enumerate the cattle, &c., intended to he replevied.'] Dated this day of 18 . [^Signature of plaintiff or his solicitor.] The plaint notes are p7-epared and kept) p)rinted in the registrar's office. j (2.) Judgment for Plaintiff in Replevin for Rent. [_Title of court and cause as ante. No. 1.] rTpon hearing this action at a court holden this day, it is this day adjudged that the plaintiff do recover against the defendant the sum of £ for Forms — Eeplevin removed into High Court. 1007 damages for the taking of the plaintiff's goods and chattels [o?- cattle, stating the App. E. s. 3. jKirticuJars thereof] and £ for costs amounting together to the sum of £ , " And it is ordered that the defendant do pay the same to the registrar of the court on the day of IS . Given under the seal of the coiu-t this day of 18 . By the coui-t, I. K., Registrar of the Court. Hours of attendance, [tfcc. see ante, 1,000]. (3.) Judgment for Defendant in Replevin for Rent (g). Upon hearing this action at a court holden this day, it is adjudged that the plaintiff do return to the defendant the goods and chattels [or cattle, stating the particulars thereof], and pay to the registrar of the court forthwith [or on the day of ] the sum of £ for costs of suit. [Or, it is adjud"-ed that the amovmt due for rent in arrear from the plaintiff to the defendant is £ , and that the goods and chattels [or cattle] were of the value of £ ; and that the plaintiff do forthwith [or on the day of 1 pay to the registrar of the court, at his office, the said sum of £ and also the sum of £ for costs of suit]. (b) Forms in Action of Pieplevin removed from the Countij Court into the High Court. (1.) Affidavit for Certiorari. In the High Court of Justice {h). I, C. D., of , in the coujity of [trade or addition'], make oath and say as follows : — ■ 1. On the day of [instant or last] I was served with a summons issued out of the Comity Court of , holden at , with particulars of demand thereto annexed : and the paper writing hereto annexed, marked A, is a true copy of the said particulars of demand (/). 2. I am the defendant named in the said summons and j)articidars. 3. I have good grormd for believing, and do verily believe, that the rent [or " damage "] in respect of which the distress mentioned in the said summons and particulars was made exceeded twenty pounds. 4. [i?"i??-e state the fads, showing the ground of belief above mentioned, ex. gr. :] The plaintiff A. B. , in the said summons and particulars named, for quarters of a year next before and ending on the day of last, held a certain [dwelling-house or farm, lands] and premises, situate at , in the parish of in the county of , wherein the said distress was taken, as mj- tenant at the annual rent of pounds, payable [quarterly on the usual quarter days, or as the case may be], of which rent the sum of pounds, for [two] quarters ending on the day of last, became and was due to me from the said A. B., and [the sum of £ , parcel thereof (the residue havino- been paid)] continued in arrear and unpaid at the time of the making of the said distress [or state facts showing that the "damage done" exceeded tiuenty pounds], 5. I am desirous of having the said action removed by certiorari from the Coimty Coui-t of holden at , into Her Majesty's High Court of (g) Tbis form is No. 247 in schedide to {h) ISTot to be entitled in any cause. C. C. C. Rules, 1889. (i) Let A. and B. be marked as exhibits. 1008 Appendix E. (foems in actions). App. E. s. 3. JiisticG : And I am ready and willing to give such security as is required by tlie statute in such case made and provided. CD. Sworn, &c. (2.) The like, wlien some Title is in Question. [Connneuce as ante, No. 1, to the end of the second jmragraph.'] 3. \_Here state the facts specially, shoiving that the title of some particular here- ditament, toll, market, fair or franchise is in question.'] 4. I have good ground for believing, and do verily believe, that the title to the said was and is in question. I am desirous [&c. as in last form']. CD. Sworn, &c. (3.) Judge's Order for a Certiorari to remove an Action of Replevin (k). Upon reading the affidavit of , I do order that a writ of certiorari do issue to remove an action of replevin between A. B. and C. D., with all things touching the same, from the County Court of , holden at , into her Majesty's High Court of Justice, on the said C. D. giving secuiity as jjrovided for "by the 19 & 20 Yict. c. 108, s. 67. Dated the day of , 18 . [Judge's signature.] (4.) Bond on Removal. \_Form of hand hij the defendant and two sureties in apenalty not exceeding 1507. (/), as ante. Sect. 1, No. 6, p. 1,000, to the date inclusive: WllEREAS an action of rei^levin was on the day of , 18 , commenced in the County Court of , holden at , wherein A. B. was i)laintitf and the above-boimdeu C. D. was defendant : And whereas the Honourable Sir , Knight, one of the judges of Her Majesty's High Court of Justice [or, "And whereas, her Majesty's High Court of Justice"], on the application of the said C. D., did, on the day of , 18 , order that [recite order for certiorari in- the past tense, ex. gr.] "a wiit of certiorari shoidd issue to remove the said action of replevin between the said A. B. and C. D., with all things touching the sam^e, from the said County Court of , holden at , into Her Majesty's High Court of Justice, on the said C. D. giving secuiity as provided for by the I approve of this 19 & 20 Vict. c. 108, s. 07 ; " AxD WHEREAS the above-named E. F. and G.H., t*ond. at the request of the said C. D., have agreed to enter into the above-written '^^' jiuster. obligation as his sureties : Now the CO^'DITIOX of this obligation is such, that if the above-bounden C. D. do defend the said action in her Majesty's High Coiu't of Justice, with effect {m) ; And unless the said A. B. shall discontinue or shall not prosecute such action or become nonsuit therein if the said C. D. do prove before the said High Court that the said C. D. had good groimd for believing either that the title to some corporeal or incorporeal hereditament, or to some toll, market, fair or franchise was in question, or that the rent or damage in respect of which the distress in this behalf was taken, exceeded twenty pounds, then this obligation shall be void and of no effect, otherwise shall bo and remain in full foi'ce. Signed, sealed and delivered by^i C. D. (Seal.) the above-bounden in the,- E. F. (Seal.) presence of j G. H. (Seal.) (k) The order need not be entitled in [l) The amount of the penalty not any division or cause. The application is exceeding 150/. must be fixed by one of usually made to a Judge at Cliamljeis ; tlie masters, j)ursuant to s. 137 of the Boiccn v. Evans, 3 Exch. Ill ; 6 D. & L. County Courts Act, 1888. 193. But sometimes it may be made to {in) I.e., with .success ; Tummons v.. the court. The form of a rule of court 0 , esq., one of the masters of the Division of the said High w. B., ' Court of Justice, the sum of £ sterling (being the amoiuit fixed by Master, the said master pui'suant to the said act) : Xow the condition of the said deposit is such, that if the said C. D. do defend the said action in her Majesty's High Court of Jiistice with effect ; and unless the said A. B. shall discontinue or shall not prosecute such action, or become nonsuit therein, if the said C. D. do prove before the Division of the said High Coui't of Justice that the said C. D. had i:ood ground for believing either that the title to some corjioreal or incorporeal hereditament, or to some toll, market, fau" or franchise, was in question, or that the rent or damage in respect of which the distress in this behalf was taken exceeded twenty jjoiuids, then the said dejxjsit shall be void, and retru'ned to the said CD.; otherwise the same shall be applied and disposed of according to law. (Signed) C. D., [">■ CD., by G. H., his attorney.] (6.) Writ of Certiorari to remove Action (f Replevin. Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, To the judge of the county court , holden at , greeting : We being willing for certain causes to be certified of a plaint levied in our court before you against C D. at the suit of A. B. in an action of replevin, command you that you send to oiu" High Court of Justice at Westminster, on , the plaint aforesaid with all things touching the same, as fully and entirely as it remains in oiu- coiu-t before you, by whatsoever names the paities may be called therein, together with this writ, that we miiy fiu'ther cause to be done thereujion what of right we shall see fit to be done. Witness \_name of Lord ChanceJlor~\ (v/) at Westminster, the day of , in the year of oiu- Lord, 18 . [Indorsement.) " By order of Mr. [Justice or Baron] dated the day of , 18 ; " or " By ride of court, dated the day of ,18 ." Add solicitor's name and address. (n) See E. S. C, Ord. II., r. 8. L.T. 64 1010 Appendix E. (foems in actions). App. e. s. 3. (7.) Rdiirii of County Court Judge to Certiorari. [Indorsement on the Writ.) The execution of this writ appears in the schedule hereunto annexed. The answer of , esq., judge of the county coui't within mentioned. \_Annex a ScJteduJe written on Parchment as folloivs :~\ I , esq., the judge of the county court of , holden at , in the said county, do most humbly certify to our sovereign lady the queen, that at the date and suing forth of the wi'it of our said lady the queen to me directed and to this schedule annexed (to wit) on [teste of -writ of certiorari^ A. B. in the said writ named, entered in the office of the registrar of the said county court at , aforesaid, a plaint in writing against C. D. in the said wiit also named, for taking and unjustly detaining certain goods [and cattle] of the said A. B. : And that afterwards, on , a summons on the said plaint was issued under the seal of the said coru't, according to the fonn of the statutes in that tehalf, whereby the said C. D. was summoned to apj^ear at the said coui't to be holden at , in aforesaid, on , to answer the said A. B. to a claim, the particulars of which were thereunto annexed, and are as follows : — " In the county court of [&c. copy of particulars.'] " And this is the tenor and record of the process of the said plaint, with all things touching the same, as it remains before me. (8.) Notice of fling Certiorari, and Demand of Statement of Claim. In the High Coru-t of Justice. Between A. B., plaintiff, and C. D., defendant. The defendant having sued out of this honourable court a writ of certiorari directed to the judge of the count}- court of , holden at , for removing the above cause out of the said county covu't into this court, returnable on the day of last past, I do hereby give you notice, that the defendant has filed the said writ, and the return thereto, with the proper officer of this court, and has entered his appearance in the said action in this court : And the plaintiff is hereby required to declare in the said action in four days, otherwise a judgment of non pros, will be signed against him. "Dated this day of , 18 . Toiu's, &c. G. H. of Defendant's [solicitor or agent]. To Mr. E. F., the plaintiff's) [solicitor or agent]. ) Forms — Eecovery of Small Tenements in County Courts. 1011 (c) Forms in Actions for the Recovery of Small Tenements in the County Courts. App. E. s. 3. [l.) Summons for Recovery of Possession against a Tenant or other Person holding over{(i). In the county coiu't of holden at Between A. B., jilaintiff, [_Address, Description^ and C. D., defendant, \_Address, Description^ No. of Plaint. (Seal^ * [Issued " by leave of the coiu-t " or/' by leave of the registrai*."] You are hereby summoned to appear at a county court to be holden at •on the day of , IS , at the hour of in the noon, to answer the plaintiff, wherefore you neglect or refuse to deliver up to him possession of a certain \_inessuage, n-ith ajipurte nances, or j^^^rt of a hon.se, dx., or, as the case mag be,'\ situate at And take notice, that the plaintiff claims of you for rent [_or mesne profits] [_or for rent and mesne profits] the sum of for a joeriod from the day ■of , 18 , to the day of , 18 . And farther take notice, if you do not ajjpear at the said court, and show cause why you do not deliver up possession as aforesaid, the court may order that possession of the said premises be given by you to the plaintiff' forthwith, or on or before such day as it shall name, and that if such order be made and be not obeyed a warrant may issue to give possession to the plaintiff. Dated the day of , 18 . Eegistrar of the court. To the defendant. £ 6-. d. Costs of tliis summons ...... Claim for ........ * lusert this ^vhen necessary. Order v., Rule 3. At bottom of Summons. Take notice. — If the plaintiff in this action be not yoiu' immediate landlord, YOr MUST upon your being served with this summons, or if this summons sha ] come to yoru- knowledge, forthwith give notice thereof to your i:NniEt)iATE LANDLORD, and if you do NOT give such notice you will be liable, under section 140 of the County Courts Act, 1888, to forfeit to your immediate laud- lord three years' rack-rent of the premises held by you of him, in respect of which the summons shall have issued. ■A & 52 Vict. C. 43, s. 140. (2.) Sinnmoiis for liecoceri/ of Possession of a Tenement for Xonpuyment of Rent [p). [Title (fcunrt and action, asahoce, Xo. 1.] You are hereby summoned to appear at a court to be holden at on the Order v , day of , 18 . atthehoiu* of in the noon, to answer the Rules, plaintiff why possession of a certain , situate at , should not be given up to the plaintiff, by reason of the rent payable in respect thereof by j'ou being (o) This is Form No. 210 in schedule to {p) This is Form No. 211 in schedule to C. C. C. Kules, 1889. County Court Rules, 1889. 64—2 1012 Appendix E. (forms in actions). App. E. s. 3. lialf a year in arrear, and tlie i^laiutiff having- riglit by law to re-enter for the nonpayment thereof. If ^'011 shall i)ay to the Registrar the rent in arrear, and the costs of this action, as stated at the foot of the summons, five clear days before the day you are required to aj^pear to this summons, this action will cease. And take notice, that if you do not pay such rent in arrear and costs, or appear at the said Coui't, and show cause why possession of the said should not be recovered against you, you may be ordered by the Court to give possession of such premises to the plaintiff, and that if such order be not obeyed a warrant may issue to give possession to the plaintiff. Dated this day of , LS . Eegistrar of this Court. £ 6. d. Costs of this summons At hittom (if Sttmmons. 51 & 52 Vict. Take Notice fas in No. 1. tinfcl. C. 43, s. 140. '- -^ (3.) Order for Eccoreri/ (f Possession of Tenement for X())ip((t/ment of Bent (ij). Order v., U]ion the hearing of this action at a Court holden this day, it is ordered that " "^ ■ the defendant do give to the plaintiff possession of a certain situate at on or before the day of ,18 , unless the rent in arrear for the said jn-emises, amounting to £ , and the costs of this action be paid into Court before such day of , IS . And it is adjudged that the jilaintiff do recover against the defendant the sum of £ for costs of this action. And it is ordered that the defendant do pay the same to the Eegistrar of this Court on or before the day of , IS . To the defendant. Take notice. — That if you do not i)ay the said rent and costs, or give such possession, a warrant may issue requiring the bailiff' of the Court to give possession of the said to the plaintiff, and to levy the sum of £ above mentioned, together with further costs. Hours of attendance, &c. (4.) Order for .Rccuri'rt/ of Possession of Tenement against Person holding over {_r). Order v., Upon the hearing of this action at a Court holden this day, it is ordered that K^l® ^- the defendant do give to the plaintiff possession of a certain house [or messuages ivith appurtendnces. ov part of eertai)i house, or, (^s the case mag he'\, situate at forthwith [or on the day of ], and it is adjudged that the plaintiff do recover against the defendant the srun of £ for rent [('/■ mesne profits] [or for rent and mesne profits] and £ costs. And it is ordered, that the defendant do jiay to the Eegistrar of the Coiu't the sum [or sums] above mentioned on or before the day of , 18 . To the defendant. Take notice. — That if you do not give such ])ossession a warrant may issue requiring the bailiff of the Coui-t to give possession of the said to the plaintiff, and to levy the sum of £ above mentioned, together with further costs. {q) This is Form No. 212 in schedule to (r) This is Form No. 213 in schedule to County Court Rules, 1889. County Court Rules, 1889. Form of Summons in Ejectment. 1013 (j.) Wi(rraiit for RrcoirTi/ of Possession of Toicmcut (s). ^Tiereas at a Coiu't liolden at on tlie day of , 18 , it was ordered by the Court, that the defendant shouhl give the phiintiff possession of a certain \_as in sumtiKJits] situate at \^a)id that the Plaintiff slundd recocer (((/ainst the Defendant'] the siun of £ for rent [f(r mesne profits] [or rent and mesne profits] and costs : And whereas the defendant has not obeyed the said order : These are therefore to authorise and require you to forthwith give possession of the said hereinbefore mentioned iiremises to the i^laintiff : And these are therefore further to require and order you forthwith to make and levy by distress and sale of the goods and chattels of the defendant, where- soever they may be found within the district of this Court (excepting the wear- ing apparel and bedding of the defendant or his family, and the tools and implements of his trade, if any, to the value of five pounds), the said sum, and the costs of this warrant and execution ; and also to seize and take any money or bank-notes (whether of the Bank of England or any other bank), and any chec[ues, bills of exchange, promissory notes, bonds, specialties, or securities for money, of the defendant which may be there found, or such part or so much thereof as may be sufficient to satisfy this execution and the costs of making and executing the same and to pay the amount so levied to the Eegistrar of this Coiu't, and make return of what you have done under this warrant immediately ujion the execution thereof. Given luider the seal of the Coiu't, this App. E. s. 3. Order v., Rule 3. dav of , IS . By the court Eegistrar of the Couii. To the high bailiff of the said court. Rent [_or mesne profits], \_or rent and mesne jirofits] . Costs ...... Poundage for issuing tlus warrant Total amount to be levied . d. Notice. — The goods and chattels are not to be sold luitil after the end of five days next following the day on which they were seized, unless they be of a perishable nature, or at the request of the said defendant. Application was made to the registrar for this warrant at minutes j)ast the hour of , in the noon of the day of ,18 . (d) Form of Sididhoiis in Kjectmoit. Summiins in Action for Recoverij of Land [Ejectment) {t). [Title of Court as above, p. 1011.] You the above-named defendants, and all persons entitled to defend the possession of the property described in the statement hereunto annexed, situated in the parish within the district of this eoru't, to the possession whereof the above-named plaintiffs, some or one of them, claim to be \_or to have been on and since the day of 18 ] entitled, and to eject all other persons therefrom, are hereby summoned to appear at a county coiu't to be holden at on the ' day of , 18 , at the hoiu' of in the forenoon to defend the said property, or such part thereof as you may be advised. Order V., Rule 3. (s) This is Form Xo. 214 in schedule to County Court Rules, 1889. (/■) This is Form Xo. 215 in schedule to County Court Rules, 1889. 1014 Appendix E. (forms in actions). App. E. s. 3. And take notice that unless you appear judgment may be given, and you turned out of jjossession. Dated the day of 18 . Registrar of the court. To the defendants. Costs of this summons . Solicitor's costs Total . At hotiom of Summons. Take notice. — If you, the defendants, or any of you, be only tenants of the proj)erty or some part thereof, you must, upon being served with this summons, or if this summons shall come to your KNOWLEDGE, forthwith GIVE NOTICE thereof to your immediate landlord or his bailiff or receiver, and if you do not 15 & 16 Vict. give such notice you will be liable, under section 209 of 15 «S: 16 Vict. c. 76, to c. 76, s. 209. forfeit to your landlord theee years' rack-rent of the premises demised to you or holden in your jiossession of him, in resj^ect of which this summons has issued. £ s. d. Sect. 4. — Foiais under the Small Tenements Recovery Act, 1838, 1 c^- 2 Vict. c. 74 (ante, 877). (1.) Comjjloiitt before 2' wo Justices (u). The complaint of [owner or agent, c&c, as the case may tc], made before us, two of her Majesty's Justices of the Peace acting for the disti-ict of , in petty sessions assembled, who saith that the said did let to a tene- ment, consisting of , for under the rent of , and that the said tenancy expired [_or was determined by notice to quit, given by the said , as the case may he'], on the day of and that on the day of the said did serve on [tJie tenant oi'erho/din;/'] a notice in writing of his intention to apply to recover possession of the said tenement (a duplicate of which notice is hereto annexed), by giving, ct'c. [describiny the mode in which the service tvas effected~\ ; and that notwithstanding the said notice the said refused [or neglected] to deliver up possession of the said tenement, and still detains the same. (Signed) Taken the day of before us (Signed) A duplicate of the notice of inteidion to a/ipJy is to he annexed to this complaint. (2.) Warrant to Peace Officers to take and yive Possession. Whereas \_sef forth the complaint^, we two of her Majesty's Justices of the Peace, in petty sessions assembled, acting for the of , do authorize and command you, on any day within days from the date hereof [except on Sunday, Christmas Day, and Good Friday, to be added if necessary'], between (it) For notice to tenant to deliver up possession, see ante, App. C. Forms under 1 il- 2 Vict. c. 74. 1015 the hours of nine in the forenoon and four in the afternoon, to enter (by force if App. E. s. 4. needful), and with or without the aid of the owner or agent, as the case ■ may he, or any other jierson or persons whom you may think requisite to call to your assistance, into and uj^on the said tenement, and to eject thereout any person, and of the said tenement full and peaceable possession to deliver to the said the owner or agent]. Given under oiu- hands and seals this day of To and all other constables and jjeace officers acting for the district of ( lOK) ) APPENDIX F. FOEMS UNDER THE AGRICULTURAL HOLDINGS ACT (a). Sect. i'age 1. Notices of Impiovenients. Claims, &c 1016 (1.) Authority of Agent 1016 (2.) Applicntion for Landlord's Consent to Improvements in Part 1. of Sched I. ... 1016 (3.) Consent of Landlord to such ■ Improvement (s. 10) 1017 (4.) Notice of Intention to claim Compensation 1017 {o.) Additional Claim for Breach of Covenant by Land- lord 1017 (6.) Counter-notice by Landlord of Claim for Compensa- tion 1017 (7.) Notice to Quit part of Hold- ing lOlS (8.) Counter-noticH by Tenant to (juit entire Holding ... 1018 Sect. page (9.) Notice of Intention to re- move Fixtures 1018 (10.) Notice of Election to pur- chase Fixtures 1018 2. References, &c 1019 (1.) Joint Appointment of Re- feree 1019 (2.) Notice to single Referee to act 1019 (3.) Appointment of Referee by either Party 1019 (4. ) Aj)pointmeut of Substituted Referee 1019 (5.) Notice of Appointment of Referee 1020 (6.) Notice to other side to ap- point Referee 1020 (7.) Appointment of Umpire ... 1020 (8. ) Request to Referee to ap- point Umpire 1020 (9.) Award 1020 Sect. 1, — Notice of Improvements, Claims, etc. (I.) AutlKirity of Afjent to act under the Act. I, A. B., of \_)i(imi' (uid address of landlord or tenant as the case mat/ hel liereby appoint C. D., of , to act for me under the Agricultural Holdings Act, i883, generally [or] for the special purpose of [<-..'/] consenting on my behalf to the execution by mj tenants of improvements mentioned in the first part of the first schedule of the said act [or], to the execution of the improve- ment denominated [*'.,'/.] " Ifiying down of permanent pasture." Address -A-. B. Date (2.) Applkation for Landlord's Consent to Improvement in Ft. I. of Sched. I. {b). I beg to inform you that I propose to execute upon [describe holdimj'], in the parish of , the following improvement, that is to say : — "Laying down of permanent pastm'e" [or other improvement in Ft. I. of Sched. I., «s the case may he'] to the extent of acres: and I hereby request your consent in writing to such improvement. Address -^- ^• Date To C. D. [_namc and address of landlord']. (a) See the act discussed, ante, Chap. XXL, p. 812 ; and set out at length, ante, p. 915. For County Courts Orders and Forms, .see Appendix A., Sect. 10, pp. 928, 929. (6) This should, but need not, be in writing. I Forms under the Agricultural Holdings Act. 1017 (3.) Consent of Landlord to Improvement in Part I. of ScJied. I. Aw. F. s. 1. In reply to your application of the instant, I hereby [()/• I hereby on behalf of , of ] consent to the execution by you of the improvement therein specified, that is to say : — "Laying down of permanent pastui'e " [nr other rmprovement in. Ft. I. of Sched. J., as the case may he"]. Address A. B. Date To C. D. \jname and address of teimnt]. (4.) Notice of Intent i 071 to claim Compensation (sect. 7) (c). I hereby give you [or you as and being the agent of C. D. of ] notice of my intention to claim compensation, under the Agricultui-al Holdings Act, 1883, for certain improvements within the meaning of that act executed by me upon my holding called [describe holding]. The following are the jjarticulars of my intended claim : — ■ [State the site, class, date, and, extent in acreage of eacJi improvement, and the amount of the whole claim\ Address A. B. Date To C. D. [_name and address of landlord or his agent, as the case mug Z)e]. (5.) Notice of Iidention to claim Comjjensation for Breach of Covenant hg Landlord (sect. 6). ' Proceed as in Xo. 4, supra, and add, And I also hereby give you notice of my intention to claim compensation under the above act for the breach of an agreement on your part [or on the part of the said C. D.] to [here follow the words of the agreement if in writing, and add, such agreement being dated the day of ]. etc., &c. (6.) Counter-notice hg Landlord of Claim for Compensation (sect. 7) ((Z). With reference to your claim for compensation under the Agricultural Holdings Act dated the instant, I [or I on behalf of 0. D. of ] hereby give you notice of my intention to make a claim upon you for compen- sation under that act. The following are the particulars of my intended claim : — [Refer to Sect. 19, and describe art of waste or breach if agreement, as the case may be, with dates and. references to writiiajs, if any.'] Address " ' A. B. [or A. B. for the said C. D.] Date To E. F. [_name and address of tenant^. (c) B}' sect. 7 of the act this iioticemust (d) By sect. 7 this counter-notice must be (;iven two months before the deterniina- be given before the determination of the tiou of the tenancy. tenancy, or within 14 days thereafter. 1' 1018 Appendix F. (forms). App. F. s. 1. (7.) Xctice to Quit j'urt af HohliiKj in consequence of intended resumption for ~~~ Improvements (sect. 41). I {or I on behalf of C. D. of ] hereby give you notice to quit and deliver up on the day of , 18 , the possession of {describe accurately, with measurements, that part of the holdiny to ivhich the notice is intended to appii/l the said {repeat description of the part svffi.cieutJy for identification'] being part of the holding known as {describe eutire lioldincj'], situate in the parish of , in the county of , which said holding you now hold of me as tenant from year to year. And I hereby state, in pursuance of the Agricultural Holdings' Act, 1883, that the said {repeat description of part holding] is required to be resumed with a view to {state any of the purposes enumerated in section 41, e.y. the planting of trees]. Address A. B. Date To E. F. {name a ud address (f tenant']. (8.) Notice by Tenant that he accepts the above Notice to Quit t/s a Notice to Quit the entire Holding (sect. 41) (e). With reference to yoiu- notice to quit of the instant, I hereby beir to inform you that I accept the same as a notice to quit my entire holding, as 1 am entitled to do by virtue of the Agricultural Holdings Act, 1883, to take effect at the expii'atiou of the current year of my tenancy, that is to say, on the day of , 18 . Address A. B. Date To C". D. {name a)id address of landlord or his agent^. (9.) Notice of Intention to remove Fixtures (sect. 34, sub-sect. 4) ( /'). In pursuance of the Agricultural Holdings Act, 1883, I hereby give you [or you as and being the agent of C. D. of ] notice of my intention to remove ifrom my holding known as {describe holding], the following fixtui-es, that is to say : {Enumei^ate and describe fixtures.] Address A. B. Date To C. D. {uione and address of landlord or his agent]. (10.) Notice of Landlord's Election to purchase Fixtures (sect. 34, sub-sect. 5) (jr). With reference to your notice of the instant and by virtue of the Agricultural Holdings Act, 1883, I {or I as and being the agent of C. D. of (c) I5y sect. 41 this notice luust be c. 21, s. 4] month before the removal, given within 28 days after service of the {g) By sect. 35, sub-sect. 5, this notice notice to (piit. must be given before the expiration of the (/) By sc(:t. 34, sub-sect. 4, this notice notice of removal, must be given one [calendar, 13 & 14 Vict. FoRirS UNDER THE AGRICULTURAL HOLDINGS AcT. lOi^r ] hereby give you notice that I elect to purchase the following of the App. F. s. 1. fixtures comprised in such notice, that is to say : \_Kiiiiinnts mentioned in the First part of the First Schedule of the said act, we find that £ is due from A. B. to C. D. in respect of [the ■erection of buildings], and thnt £ is due from A. B. to C. D. in respect (t) Serve eacli referee with a copy. For:\is i;ndee the Agricultural Holdings Act. 1021 of [making of garden]. Such buildings, being [describe huildinys] were autho- rized by A. B. in the year 18 , and executed by C. D. in the year 18 , at the cost of £ . Such making of gardens was authorized by A. B. in the year 18 . and executed by C. D. in the year IS , at the cost of £ . The gardens made are situate \_d('scrihc situatioitl^ and cover acres roods and perches. As to im2")rovements mentioned in the third i)art of the First Schedidc of the said act, we [o/- I] find that £ is due from A. B. to C. D.- in respect of [liming of land]. This improvement was executed by C. D. in the year 18 . at the cost of £ . Such improvement extends over the lands called {_describe Jands'], consisting of acres or thereabouts. We [or I] further find that £ is due from A. B. to C. D. in resi:)ect of purchased manure, being guano, a])plied to land. This im})rovement was executed by CD. in the yeai' 18 , at the cost £ . Such improvement extends over the lands called [dr'scrihr Jaiids^, consisting of acres or there- abouts. And with respect to breaches of covenant, we find that the said C. D. com- mitted two breaches of covenant in this, that he underlet the farmhouse called to in the years IS , and IS , without having first obtained the leave of the said A. B., whereby the said farmhouse became and is in a bad state of repair. And we [or I] award and determine that the sum of £ is due from C. D. to A. B. in respect of such breaches of covenants. Wherefoke we award, adjudge and determine that there is due from A. B. to C. D. the sum of £ , and that the said sum of £ be paid by A. B. to C. D. on or before the day of IS . And we award that all costs of and incident to this reference be borne [by the said A. B., or by the said C. I)., or by the said A. B. and C. D. between them] or in the following proportions, that is to say [three-foiu'ths] by the said and [one-foiu'th] bv the said Date ■ E. F. Apr. F. s. 2. ( 1023 ) INDEX. [N.B. — All the Chapters have Tables of Contents prefixed to them.J ABANDONMENT of premises, recovery of, under justices' order, 883. And see Deserted Premises. of distress, 498. question for jury, 499. of easement, 749. ABATEMENT of rent in case of fire, 439. of nuisances on commons, 733. ACCEPTANCE of offer, concluding of contract for lease by, 101, llu. 111. of rent, under a void lease or agreement for lease, 231. by remainderman, 10, 234. from a tenant who holds over, 233. when a confirmation of an invalid lease under a power, 220. when a waiver of a forfeiture, 341. of a notice to quit, 382. of double rent, 788. of tenant, surrender by operation of law by, 321. ACCIDENTAL FIRE. See Fire. liability of tenant in case of, to rejjair, &c., 631. to pay rent, 437- abatement of rent, 439. ACCOUNT, action of, by one co-owner against another, 13. ACCUSTOMED EENT (in leases under powers), 415. ACKNOWLEDGMENT, of lease by married women, under Fines and Recoveries Act, 47. of title, in writing, effect of, 235. by agent, insuiEcient, 235. ACQUIESCENCE of landlord, in breach of covenant by tenant, 3 11. And see Waiver. ACT OF PARLIAMENT, History of Landlord and Tenant Acts, liii. list of Acts printed at length, 897. of short titles of Acts, ix. discharge of covenants by, 182. ACTION for rent, waiver of forfeiture by, 341. recovery of rent by, on covenant, 563. on simple contract, 568. use and occupation, 570. See Use and Occupation. by landlord against third party, 770. by third party against landlord, 773. by tenant against third party, 776. by third party against tenant, 777. for non-repair of cellar, 778. 1024 Index. ACTIO'N —continued. for waste, 650. And see Waste. of replevin, 539. -See Eeplevin. ■wrongful distress, 556. double damages where goods sold, 557. ejectment, 835 (where see a full Index). ADHESIVE STAMP. See Stamps. when it may be used tinder Stamp Act, 196. cancellation of, 190, 427. may not be used without express provision, 196. ADJOINING PREMISES, effect of acts of same landlord of two houses, 749. ADMINISTRATORS. See Executors. lease by, 52, not before letters of administration, 53. what property goes to, 303. effects of letters of administration, 304. personal liability of, on repairing covenant, 306. "real representatives " under Land Transfer Act, 1897.- -52. And see Real Representative. ADMIRALTY, lease by, 17. notice to sheriff of rent due in case of execution, 535. ADVANCE, RENT PAYABLE IN, 406. may be distrained for when so payable, 406. not recoverable as '"' for use and occupation," 406. notice thereof to sheriff where tenant's goods seized, 529. payment to mortgagor, no discharge, 266. ADVERTISEMENT, for sale or letting no breach of contract against alienation, 699. breach of covenant against trade, 705. right of lessee of fiat to restrain, 150. ADVOWSONS, leases of, 85. AGENT, agreement for lease by, 90. need not be authorized in writing, 90 (c). name of, must be stated, 94. lease by, 67. land agent, extent of authority of, 67. lease to, 85. how authorized, 67, 90. by deed, if lease by deed, 67. form, under Agricultural Holdings Act. 1016. form of signature, 68. subsequent ratification, 67. executing in own name, jiersonally liable, 68. implied warranty as to his authority, 68. parol evidence admissible, not to exonerate agent, but to charge or benefit principal, 68. misrepresentations by, 69. whether innocent principal liable for, 69. action for deceit by, 69. triistee agent, 69. distress by certificated bailiff, 493. And see Distress. house agents, liability of, to make inquiries, 69. authority of, to give possession, 70. right of, to commission, 70. ordinary comiuissioa charged, 70. to let furnished house must be licensed, 71. duration of licence, 71. penalty for acting without, 71- saving for land agent and auctioneer, 71. goods in hands of, not distrainable, 475. Index. 1025 AGISTED STOCK, exempted conditionally from distress on agricultural holding, 486. limit of amount recoverable, 486. power of owner to redeem, 486. AGREEMENT FOE LEASE, 90 et seq. forms of, 943. must be in signed writing under Statute of Frauds, 90. what is an " interest in land" within the statute, 92. contract for lodgings, 92. agreement for agreement, 92. contract itself need not be in writing, 93. what the writing must state, e.g. names, 94. description of property, 95. term to be granted, 96. effect of agi-eement '• not to disturb," 96. of " collateral agreement," 93. what is a sufficient signatui-e, 99. signatux'e by agent, 100. agent need not be authorized in writing, 100. effect of parol alterations after, 9S. stamp of, except where term exceeds 35 years, same as stamp of lease, 100. penalty for not stamping, 101. application of Conveyancing Act (relief against forfeiture) to, 351. whether lease or agreement, is question of intention, 103. legal tenancy from year to year by entry under, 231. equitable leasehold by (Walsh v. Lonsdale), 91. remedies for breach, damages or specific ^Performance, 101. in what division of court action may be brought, 102. action for damages in County Court, 102. breach by lease to another party, 102. defence of illegality of intended user, 102. specific performance assigned to Chancery Division, 103. action for, in County Court, 103. combination of damages with, 103, 104. for tenancy from year to year refused, 105. whether time essence of contract, 106. in case of mines, ecclesiastical leases, &c., 123. oral agi-eement, with a part performance, 106. what sufficient performance, 107. outlay by sub-lessee, 107. payment of increased rent, 108. continuance of possession taken before parol contract, 108. execution of repairs, 109. there must be a complete contract, 109. counter-proposal, correspondence after proposal, 110. signed proposal binding after oral acceptance. 111. where "further negotiations" stipulated for, 111. grounds for refusal or grant of specific performance, 113. indefiniteness of agreement, 113. inadeqiiacy of consideration, no ground, 113. misrepresentation, concealment, 114. pviblic nuisance affecting the property, 114. illegality of contract, 115. impossibility, 118. contract for longer lease than grantable, 118. engagement of personal services, ground of refusal, 113. insufficiency of title, 115. unreasonal)le hardship, 116. injiiry to property by fire, 116. failure to give possession, 117. breach of trust, 117. apprehended forfeiture, 117. fraud, surprise, mistake, 118. unexercised powers of third persons, 120. L.T. 65 1026 Index. AGREEMENT FOE LEAS^— continued. remedies for breach, damages or specific performance — continued. specific performance assigned to Chancery Division — continued. grounds for refusal, &c. — contimied of part of contract, usually no si^ecificperf ormance,121. unnecessary delay by plaintiff, 122. acts of forfeiture by plaintiff, 123. parties to action for specific pei-formance, 12-i. bankrupts, lunatics, felons, infants, &c., 125, 126. infant, one of two joint tenants, 125. decree for a lease, 126. appointment of party to execute lease, 126. what are " usual covenants," 127. whether re-entry for breach of covenants "usual," 130. solicitor's charges in connection with, 131. AGRICULTURE, obligation of tenant to ciJtivate, notwithstanding loss, 644. not waste to leave land uncultivated, 644 (a). prolongation of uncertain tenancy in lieu of emblements, 789. occupation till end of current year, 789. customs of country as to partial occupation, 794. table, 795. customs as to compensation for improvements, 805. half -rating of " agricultural land," temporarily, 624. Board of Agriculture, successors of Land Commissioners, 827. Agricultural Fixtures, not removable at common law, 671. how removable under Landlord and Tenant Act, 1851... 672. consent of landlord to erection, 672. notice to landlord of removal, 672. how removable under Agricultural Holdings Act, 1875. ..672. compensation for damage, &c., 672. how removable under Agricviltural Holdings Act, 1883. ..673. distinction between Acts of 1875 and 1883. ..674. contracting out of Act of 1883. ..674. difficulties of construction of the Act, 674. Agricultural Holdings, concise form of lease, 967. of farming agreement from year to year, 950. Ag. Hold. Act, 1875, operation and effect of, 813. commenced on 15tli February, 1876... 813. ; permissive clauses of, 814. j general exclusion of, 816. ' repeal of, by Agricultural Holdings Act, 1883. ..816'.. ] limited continued effect of, 817. j Agricultural Holdings Act, 1883, effect of, 812, 817. i te;it of act at length, 915. j of county court order as to appeal, 928. ] Fivefold provisions of, 812. ; compensation for improvements, 817. •, year's notice to quit, 360. See Notice to Quit. removability of fixtures, 673. See Agricultural Fixtures. \ alteration of law of distress, 463. resumption of land for improvements, 361. See Resumption. General a2)2^lication of act : to agricultural or pastoral holdings or market gardens, 819. interpretation clause of, 926, 927. imiDortance of, 833. effect of, on compensation by custom, 818. by agi-eement, 819. no compensation to sitting tenant, 819. exception for settled land, 819. as to compensation, cannot be excluded, 821. nor as to alteration of law of distress, 464. as to removability of fixtures, can be, 674. applies to crown and duchy lands, 922. Index. 1027 AGEICULTUEAL HOLDINGS— confinwed. Compensation to tenant for improvements scheduled : 1st part : buildings, gardens, &c., 819. wi-itten consent of landlord necessary, 819. " substituted compensation," 822. 2nd part : drainage, 820. written notice of landlord necessary, 820. landlord may do drainage himself, 820. 3rd part : boning, isurchased manure, and cake, 820. how far act retrospective, 821. " substituted compensation," 822. for boning, &c., miist be fair and reasonable, 822. mai'ket gai'deners, special compensation to, 823. amount of compensation, value to incoming tenant, 827. saving inherent capabilities of soil, 827, 828. deductions from compensation generally for rent, &c., 828. set-off of consideration for improvement, 828. counter-claim by landlord for waste, &c., 828. compensation for landlord's breach, of covenant, 828. Procedure for ascertaining compensation : tenant must give notice in writing, 825. within 2 months before end of tenancy, 825. when tenancy ends, where part jDOst-occupied, 825. The Portarlington case, 825; Blacky. Clay, 826. landlord and tenant may settle compensation by agreement, 826. if no agreement, reference compulsory, 826. submission irrevocable, 827. appointment of referees and timpire, 827. of iimpire by Board of Agricultiu'e, 827. of referees or umpire by county cotu-t, 827. decision of claims outside Act, 829. may be by arbitrators under Act, 829. awards should be separate, 829. or enforcement will be prohibited, 830. powers of referees, 828. time and form of award, 828. award cannot be to pay landlord anything, 829. costs of reference in discretion of referees, 830. appeal to county court where more than lOOL claimed, 830. limited grounds of appeal, 830. special case for High Court on question of law, 830. effect of s. 120 of County Courts Act, 1888. ..830. county coiirt may appoint guardian of infant, 922. next friend of married woman, 922. mode of serving notices, &c., 922. may be sent by registered letter, 922. Cormty Court Order as to appeal from award, 931.. filing of statement of grounds of aj)peal, 931.. sending to respondent, 931. respondent's reply, 931. application for referee or umpire, 932. Charge of tenant's compensation : county court may charge compensation money on holding, 831. in favoiir of the landlord, 831. provision in favour of limited owner, 831. executors of limited owner, 831. advance of charge by land company, 921. Forms of Notices, &c. &c. (where see List), 1016. AGRICULTUEAL EATES ACT, half rating " agricultural land " under, 624. definition of " agricttltural land," 624. ALIEN, under Alien Act, 1870, may let or take land, 77. act does not apply to alien enemies, 78. 65—2 1028 Index. ALIENATION, covenant against, without licence, construction of, 694. See Assignment, Licence, Sublease. ALLOTMENTS, letting of land for, 33. 40. obligation to let charity land for, 39. compensation to tenant quitting, 809. cottage^ recovery of, before justices, 881. ALLOWANCES of rates, &e., by mistake (effect of), 425. by way of "tenant right," 801. for straw, hay, and manure, 803. ALTEEATIONS, of agi-eement for lease, by parol, 98. indorsed on a lease before execution, 195. how attested, 195. after execution, 195. effect of, on the stamp, 197. rectification of erroneous lease, 227. AMBASSADOE, goods of, not liable to be taken in distress, 468. rates not payable by, 598. AMBIGUITY, in lease, parol evidence to explain, 144. AMENDMENT, action to correct an erroneous lease, etc., 227. must be brought in Chancery Division, 228. ANCIENT EENTS. reservation of, in leases under powers, 415. apportionment of ecclesiastical, 25. ANIMALS, leases of, 88 ferae naturae, not distrainable, 468, 473. distress on dogs, 473 ; on deer, 473. beasts of the plough and sheep, 469, 483. not distrainable, where other sufficient distress, 483. sheep of under-tenant, when privileged from distress, 484. cattle agisting may be distrained, 484. cattle trespassing through defect of fences, 484. food and water to be supplied to animals impounded, 506. power to third person to supply same, 506. expenses of, how recovered, 506. ANNUAL VALUE, meaning of, 860. ANNUITIES, distresses for, 458. leases of, 88. APAETMENTS, whether letting is breach of covenant not to sublet, 699. And see Lodgings. APPEAL, highway rates, 611. rates under Public Health Act, 612. from county court in action to recover tenements, 865. from justices as to deserted premises, 884. to judge of assize, 884. to county court, under Agricultural Holdings Act, 830. special case for High Court on question of law, 830, whether motion substituted for, 830. to quarter sessions under Eailway Eolling Stock Act, 482. under Agricultural Holdings Act (distress), 562, Index. 1029 APPEAEANCE, in ejectment, by defendants named in the writ, 849. by persons not named in the writ, 850. when and how entered, 849. limit of defence to part only, 851. defences as landlord, 851. notice of appearance, 851. judgment for want of appearance in ejectment, 852. at the trial of an ejectment, 853. APPENDANT (common), 734. APPLE TEEES, not included in exception of trees, 190. APPORTIONMENT OF CONDITIONS, on severance of reversion, 267. for re-enti'y on non-payment of rent, 267. on any condition, 268. in lease after 1882... 268. APPOETIONMENT OF EENT, Chap. X., Sect. 6, p. 430. In respect of estate : when it takes place by act of law, 430. on alienation of part by the lessor, 430. by the lessee, 430. on a surrender of part, 430. on an eviction from part, 430. where demise of more than lessor entitled to, 431. where i-ealty and personalty are let together', 431. where land is lost by overflowing of the sea, 432. under Lands Clauses Act, by justices, or a jury, 432. under various similar statutes, 432. In respect of time ; none, at common law (Clun's case), 433. under statutes prior to Apijortionment Act, 1870. ..433. under Apportionment Act, 1870. ..433. whether Act retrospective, 434. rent is apportionaVjle as interest on money lent, 434. whether act applies as between landlord and tenant, 435. tenant not to be resorted to for apportioned part, 435. APPEAISEMENT, on a distress for rent, 512. appraisers need not be sworn, 510. no appraisement, unless required by tenant, 513. stamp, 513. See Valuations. APPEOVEMENT (of common), 736. APPUETENANCES, meaning of, 149, 150. APPUETENANT (common), 732. AEBITEATION, reference to, of damage by ground game, 766. under Agricultural Holdings Act, 826, 919. between outgoing and incoming tenant, 795. distinction between, and valuation, 795. AECHBISHOPS, leases by, 22, 28. See Ecclesiastical Corporations. AEEA, fronting street, duty of occupier to fence, 779. AEEEAES OF EENT, rent in arrear after midnight of day when due, 422. go to executors or administrators, 305. recoverable against executors or administrators, 305. 1030 Index. AEEEAES OF 'RElihnue(?. obligation of tenant to cultivate according to, 186, 644. what trees are timber by, 657. right of outgoing- tenant to compensation under, 792. comijensation payable by landlord, 792. bj^ landlord's real rei^resentative, 793. custom to look to incomer, bad, 793. right to partial occupation under, 794. prolongation of term by, 794. distress during, 453. table of customs, 795 et seq. right to way-going crop by, 801. right to payment for hay, straw and manure, 802. for tillages, 804. not superseded by Agricultural Holdings Act, 1875... 814. claim not allowed under both the act and the custom, 814. superseded by Agricultural Holdings Act, 1883... 818. so far as applicable, 818. DAMAGE FEASANT, note on distress for, 526. DAMAGES, liquidated, distinction between, and penalty, 418. action for liquidated, 419. distress for liquidated, 446. in action by landlord for non-repair, 639. substantial, thoiigh building to be pulled down, 640. measure of, injui-y to reversion, 639. second action, 640. right to jury in County Coui't, 640. breach of covenant of sub-lease, 641. in action for waste, 653. vindictive damages, 653. for breach of agreement for lease, 102. combination of, with specific performance, 103, 104. in action by landlord against third party, 773. in use and occupation action, 585. See Use and Occupation. in actions for illegal distresses, 557. double, in case of sale whei'e no rent due, 557. full value, where distress illegal, 558. in actions for excessive or irregular distress, 561. in action for breach of covenant against alienation, 702. in replevin, 551. DANCING AND MUSIC on upper floor, no breach of covenant for quiet enjoyment, 727. DATE OF LEASE, 158. effect of an impossible date, 160. commencement of lease from, 159. commencement fi-om delivery, where no date, 160. construction of words relating to, 145. agreement for lease miist state, 96. DEAD EENT, stipulation for, construction of, 411. DEAN AND CHAPTER, leases by, when re-endowed, 31. DEAN FOREST, leases of, 17. DEATH, of parties to a lease, 52, 303. See Executors. effect of Land Transfer Act, 1897... 303. And see Real Representative. of cestui que vie, 157. how ascertained, 157. how far subsistence of life warranted, 156. 1046 Index. BBATIL— continued. when the term is limited conditionally, ] G6. of landlord having uncertain interest, 789. tenant entitled at common law to emblements, 789. by statute, if farmer, to prolongation of term, 789. DECEIT, by agent, action for, 69. refusal of specific performance where, 118. And -see Fraud. DECEEE FOE A LEASE, in action for sjiecific ijei'formance, 126. enforcement of, by appointing person to execute, 127. what are " usual " covenants, 127 ef s^'q. DEDUCTIONS, from rent for ground rent, rates, taxes, &c., 425. proiDerty tax (obligatory), 599. land tax (obligatory), 602. increased rates under Eating Act, 1874... 620. DEED, lease for more than three years must be by, 135. text of 8 & 9 Vict. c. 106, s. 3... 135. whether signature necessary, 200. lease by tenant for life by, 7. lease by corporation must be by, 17. when surrender of leases must be by, 315. all assignments must be by, 255. general rixles for construction of, 143. general words implied in lease by, 152. DEEE, distress on, 473. DEFAULT of appearance, in action for the recovery of land, 849. at trial, 849. of pleading, 849. DEFECTS IN LEASES, rectification of, 227, in Chancery Division, 228. compensation for acceptance of defective lease, 228 correction of clerical error, 228. under powers, how cured, 220. confirmation by remainderman of a defective lease, 221. DELIVEEY of Lease, by deed, essential, 201. whether lease must be signed as well as sealed, 201. delivery as escrow, 201. delivery by agent, 201. DEMAND OF POSSESSION, from tenant at will, before commencing ejectment, 241. at the end of a term, otherwise double value, 784. procedure under Common Law Procedui-e Act, on holding over, 840. notice to tenant to find bail, 840. DEMAND OF EENT, before proceeding for forfeiture, 340. according to the common law, 340. how dispensed with by agTcement, 337. imder Common Law Procedure Act, 338, 837. DEMISE, creates implied covenant for quiet enjoyment, 718. cesser of implied covenant, 719. any expi-ess covenant excludes an implied one, 718. (See Implied Covenants ; Licence. DENIZENS, leases to, 80. DEPENDENT or independent covenants, 177. in respect of repairs, 177, 179. See Title. Index. 1047 DEPOSIT, of lease as a security, 275. rights of equitable mortgagees, 275. whether breach of covenant not to assign, 700. with a memorandum (in lieu of a bond) on the replevy, 544. DEEIVATIVE TITLE, as heir, executor, assignee, &c., how pleaded in action for rent, 566, by defendants, 566. DEEOGATION FROM GEANT, implied covenant by lessor against, 186. DESCEIPTION, must be stated in agi-eement for lease, 95. mode of, in lease, 147. " appurtenances," 149. of property in writ of ejectment, 847. DESEETED PEEMISES, recovery of, before justices of the peace, 883. tenant must be in arrear for half-year's rent, 883. there must be no sufBcient distress, 883. view by justices, and second view, 883. api^eal to judges of assize, 884. in metropolis, magistrate need not view, 884. warrant to constable, 886. rating of, under Piiblic Health Act, 613. See Vacant Possession. DETEEMINATION OF TEiS^lNCY, the different modes of, 312. See Termination of Tenancy, DETINUE, action of, when maintainable for a wrongful distress, 558, DEVISE, of reversion, effect of before Land Transfer Act, 1897,.. 303, after that Act, 303, of term, effect of, 303, assent of executors, 304, term cannot be renounced, 304, And ■v'ee Executor. DILAPIDATIONS. See Eepairs. survey of at end of term, 687, no right of, during term, 687. except by agi-eement, 687 ; sijecimen agreement, ib. liability of lessee for, 626, 687. DISABLING STATUTES, 22, superseded by statutes of Victoria, 21, DISCLAIMEE, of landlord's title by tenant works forfeiture, 387. not parol disclaimer by lessee for years, 387. by tenant from year to year, 387. what amounts to, 388, renders notice to quit unnecessary, 388. effect of refusal to pay rent, 388. must be before ejectment, 389. waiver of disclaimer, 390, of leases, cf'c, by trustees in bankruiytcij, 290, history of the law, 290, effect of Acts of 1883 and 1890 and Eule, 291, text of enactments and Eule, leave of court required, 294. excepted cases, 292. forms in connection with disclaimer, 292, limit of time for disclaimer, 293. compensation to landlord, 294, 1048 Index. DISCLAIMER— conHnwed. of leases, tfc, by trustees in hanhruptnj — continued, general effect of disclainaer, 295. rights of mortgagees, sub-lessees, &c., 295. vesting order in favour of sub-lessee, 295. of lessor, 295. personal liability of non-disclaiming trustee, 295. And see Bankeuptct. DISCLOSUKE of defects in property aboxit to be let, 114, 229. of infectious disease to intending tenant, 888. See Concealment. DISEASE, power to quit furnished house for, 184. penalty for letting house after infectious, 888. for falsehoods on letting after, SSS. infectious, ceasing to occupy without disinfecting, 888. DISSENTING MINISTER, tenancy of, determinable at any time, 240. DISTRESS FOR DAMAGE FEASANT, note on, 526. DISTRESS FOR RENT, Chap. XI., p. 442. definition of a distress, 142. originally a pledge, and could not be sold, 442. history of law of, 442. to what rents distress incident, 442. on lands other than those demised, 443. with what restrictions as to mines, 443. on other goods than those of tenant, 444, 469 (s). right of may be postponed, 444. under agreement for lease, 445. for rent reserved in an assignment, no distress, 445. for rent of incorporeal hereditaments, 445. for rent of fiirnished apartments, 440. for rent for which judgment recovered, 465. whether debt for rent merges in judgment, 465. Law of Distress Amendment Act, 1888. ..493, 931. Rules of Ld. Chancellor under, 933. forms of certificate, 934. fees and charges, 935. amendment of, by Act of 1895... 493, 494. Rules of Ld. Chancellor under, 935. Restraining distress by injunction, 453. What may be restrained for : "rent-service," due from tenant, 443. commonly called rent, 443. rent payable in advance, 406. rent-charge, 443. rent-seek (Landlord and Tenant Act, 1730, s. 5), 443. rent due from a tenant at will, 445. not from tenant on sufferance, 445. rent reserved in an assignment of a term, 445. fee farm rents, 445. rent of incorporeal hereditaments, 445. furnished apartments, 446. liquidated damages for breaking up pasture, 446. double rent, 446. manual services, 446. Conditions precedent to distress : right to distrain until payment, 447. or allowance of deductions, 447. effect of taking security, 426. effect of tender before impounding, 447. after impounding, 447. what is impounding, 448. tender must be in full, 449. Index. 1049 DISTRESS FOE EENT— conhnuccl Conditions i)reccdent to distress— continued. there must be actual demise at fixed rent, 450. effect of acknowledgment of tenancy, 453. distress, where term prolonged by custom, 453. By whom a distress may or may not he made, 454. by reversioner generally, 454. joint tenants (including trustees), 454. tenants in common, 454. heirs in gavelkind, 456. coparceners, 456. tenants in tail, 456. tenants by the curtesy, 456. tenants in dower, 456. tenants under execution, 456. lords of manors and commoners, 457. mortgagees, 457. mortgagor, 458. annuitants, 458. guardians, 458. by persons not having the reversion, 458. exchanges and partitions, 458. jointures, 457. owner of a rent-charge, 459, 523. on one tenant's holding only, 523. rent-seek, 459. lords of manors, 459. tenants pur auti"e vie, 459. executors and administrators, 459. ss. 37, 38 of Civil Procedure Act, 1833... 459. distress before Probate, 460. husbands, 460. corporations, 460. churchwardens and overseers, 461. receivers, 461. agents, 462. sequestrators, 463. Distress in case of hanlcruptcy : for 6 months' arrears only, 297. proof for sixrplus, 297. whether distress barred by, 298. third party not protected by 6 months' limitation, 298. landlord may not follow the goods, 299. benefit of distress lost, if goods left with bankrupt, 299. effect of agreement to take stock for rent, 299. payment to avoid distress valid, 299. preferential charges or proceeds of distress for wages, kc, 300. Distress on liquidating company : leave of court required, 465. except where landlord stranger to company, 46/. preferential charges for salaries, &c., 536. Distress on agricultural holding : special provisions as to, 463. po / \ repetition of some of them in general Act of 1888. ..463 (r). can they be contracted out of ? 464. Things distrainable : all things on premises, 468 ; though of stranger, 469. except specially exempted, 469. money (if in sealed bag), 470. corn and crops, 470. partnership property, 470. Exemptions from distress, 468. Crown property, 469. things absolutely privileged, 468. fixtures, 472. railway, 472 ; keys, 473. 1050 Index. DISTEESS FOR EENT— corifwrnec^. Exemptions from distress — continued. things absohitely privileged — continued. animals ferse naturee, 473 ; but not dogs, 473. goods delivered to a man in the way of his trade, 474. farrier, weaver, pawnbroker, 474. butcher, agent, auctioneer, innkeepex-, 475. things in actual use, 476. clothes, 476. goods in custody of law, 476. satisfaction of rent by execvition creditor, 527. exception of growing corn seized nndev fi. fa., 478. clothes, bedding, and tools, up to 5L, 479. restoration of these by order of J. P., 479. lodgers' goods, 4S0. See Lodgers. railway rolling stock, 482. restoration of this by order of J.P., 482. hired machinery and breeding stock, 483. things conditionally privileged, 483. beasts of jjlough and sheep, 483. tools of trade, 485 ; scholar's or lawyer's books, 486. agisted stock on agricultural holding, 486. redemption of, by owner, 486. Proceedings in distress, 487 ; forms, 992. the Statute of AVilliam and Mary, 897. distress must be between sunrise and sunset, 487. distress may be on Sunday, 487. not till after rent day, 487. after lease determined (Landlord and Tenant Act, 1709, ss. 6, 7), 488. only six years arrears may be recovered, 489. on agricultural holding, one year's, 490. saving for " ordinary course of dealing," 490. right to distrain must have accrued within 12 years, 490. where to be made (52 Hen. 3, c. 15), 491. on land out of which rent issues, 491. on other land, by agreement, 443, 491. on any part of land, 491. on barge between high and low water mark, 492. on lands in different counties, 492. not on highway, l. on commons (Distress for Rent Act, 1737, s. 8), 493. how made in ordinai-y cases, 493. by landlord or his bailiff, or " broker," 493. See Broker. outer door may not generally be broken open, 497. entry by window, climbing fence, &c., 498. abandonment of distress, 498. in case of fraudulent removal,499. And see Fraudulent Removal. how distress impounded, 505. persons impoiinding animals to provide food and water, 506. power to thii-d persons to supply, 506. expenses — how recovered by distrainer, 506. liability of distrainer for injury, 506. of pound-keeper, 507. cattle may not be driven more than three miles, 507. fee on impounding (4(?.), 507. impounding on premises (Distress for Rent Act, 1737, s. 10), 508. remedy for pound-breach, 508. recovery of treble damages, 526. whether tenant may be excluded, 509. notice of distress in writing, 509 ; form, 993. five days' notice must be given to replevy, 509. fifteen, if tenant requires it, 510. what is a good notice, 510. time of removing and selling the distress, 511. time for sale, 511. "holding over" order, 512. crops may not be sold till ripe, 512. Index. 1051 DISTRESS FOE REl^iT— continued. Proceedings in distress — continued, appraisement and sale, 512. ajapraisers fox"merly reqiiired to be sworn, 510. oath dispensed with by Pai-ish Constables Act, 1872... 510. appraisement dispensed with, 513. unless required by tenant in writino-, 51.3. stamp on appraisement, 513. mode of selling' the goods distrained, 513. in auction room, at request of tenant, 513. landlord may not biiy, 513. overplus of sale to be paid to tenant, 515. action for not leaving, in hands of sheriff, 515. no action for rent till sale, 515. surplus unsold goods to be returned, 515. Expenses of distress, 516. scales of, under Distress for Rent Eules, 517, 935. treble damages for exceeding (distress for 20L), 516. taxation of, 517. charges for negotiation, 517. bailiff's right to percentage, 517. remedy for extortion before justices, 518. landloi'd liable for personal levy only, 518. copy of broker's charges to be delivered, 516. Second distress, 522. in case of insiifficiency of first, 522. otherwise vexatious and illegal, 518. for rent-charge on tenants of gTantor, 523. for successive gales all due at time of first distress, 523. action for goods taken on second distress, 523. in case of replevin, 524. Rescue and pound-breach, 524. what amounts to a rescue, 524. when a rescue may be made, 525. remedies for rescue and pound-breach, 525. indictment for pound-breach, 525. recent instance of, 526 (e). recovery of treble damages, 526. Satisfaction of arrears by execution creditor, no goods may be taken till one year's rent paid, 527. text of s. 1 of Landlord and Tenant Act, 1709... 527. saving for crown debts, 528. tenancy must be a subsisting one, 528. whether stattite applies to ground rents, 529. to rents in advance, 529. there must be an actual removal, 529. purchaser from sheriff must remove within reasonable time, 534. liability of sheriff, 530. whether notice to him necessary, 531. claim for rent in case of County Court process, 534. Aduiiralty pi'ocess, 535. text of s. 160 of County Courts Act, 1888... 534. distress by bailiff', 534. how much rent recoverable, 534. Charge of preferential claims in case of bankruptcy , 536. extracts from Act of 1888... 536. priority of rates, taxes, wages and salaries, 536. mode of enforcing charge, 537. questions arising on construction of statute, 538. Remedies for wrongful distresses, 539. recovery of goods by rei^levin, 539. See Eeplevix. recovery of damages by action, 557. summary remedy within metropolitan police district, 556. action for double damages, where goods sold, 557. 1052 Index. DISTRESS FOE EENT— cojiiinued. Remedies for wrongful distresses — continued, one foi'm of indorsement of writ, 557. pleadings in action, 558. illegal distress (where no rent due), 558. what recoverable, 558. double value of goods sold, 557. trover or detinue also will lie, 558. excessive distress, 559. rent to be deducted from damages, 561 . some damages always payable, 561. recovery in replevin is bar, 552. irregular distress, 559. special damages must be proved, 559. defences to actions, 560. not guilty by statute, 560. what it puts in issue, 560. determination of disputes under Ag. Hold. Act, 561. by justices or Coiinty Court, 561. appeal from justices to Quarter Sessions, 925. Distress for Rent Rules, 1888... 933. 1895. ..935. DISTRICT RATES, leviable on occupier under Public Health Act, 612. on owner, reduced rates, 612. quarter rating, 613. unoccupied premises, 613. outgoing and incoming tenants, 613. contracts between landlord and tenant saved, 613. DISTURBANCE, effect of agreement " not to disturb," 96, 165. action for disturbance of common, 729. of " quiet enjoyment" of tenant by landlord, 718. And see Quiet Enjoyment. DITCH and hedge, ditch belongs to him who owns hedge, 655. rule as to ditching, 655. DOGS not exempt from distress, 473. DOOR, outer, cannot be broken open to distrain, 497. review of cases by Bowen, L.J., 497. DOOR-BELL, use of, by lodger, 238. DOUBLE COSTS for successful defendant sued for wrongful distress, 560. substitution of " full costs" by Pollock's Act, 561. effect of Rules of Supreme Court, 561. DOUBLE RENT, action for, where any tenant holds over, 787. lies by s. 18 of Distress for Rent Act, 1737.. .787. after tenant's own notice to quit, 787. text of that enactment, 787. holding over need not be wilful, 788. statute applies to all kinds of tenancy, 788. notice need not be in writing, 788. proceedings for similar to those for single rent, 788. may be distrained for, 446. recoverable m County Court (50L), 788. waiver of, by landlord, 788. DOUBLE VALUE, 784. action for, against tenant /or years holding over, 784. lies by s. 1 of Landlord and Tenant Act, 1730, after land- lord's notice, 784. text of that enactment, 784. Index. 105^ DOUBLE YA'LTJ'E— continued. action for, against tenant /or years holding over— coniuuiec?. does not'lie Avliere tenancy weekly, &c., 785. tenant must hold over wilfidly, 785. demand and notice in writing, 785 ; form, 983. cannot be distrained for, 786. action in Connty Coxu-t, 787. action for double value of goods distrained, 557. lies by 2 AV. & M. c. 5, where sale and no rent due, oo/. action for, against tenant fraudulently removing goods, 499. recovery of, by proceedings before jiistices, 499. DOWER, leases by tenants in dower, 12. distresses by, 450. DEAFT LEASE, property of client, not solicitor, 911. effect of on acceptance of contract, 112. DRAINAGE, allowances for, at end of term, 806. under ciistom of country, 806. __ under repealed Agricultural Holdings Act, I8/0...8I0. "first class" improvement, 815. not exhausted for 20 years, 815. under Agricultural Holdings Act, 1883... 820. notice to landlord, 820. landlord and tenant may agree, 820. or landlord may do drainage, 820. and charge interest, 916. or tenant may, 820. and receive compensation, 820. under Allotments Compensation Act, 809. DRAINS, . ^ • 1 J v „ TCI defective, warranty against, in letting furnished house 184^ expenses of, under Sanitary Act, payable by tenant, o92, bl4 importance of term " out-gomgs m contract to pay rates, kc, 592. effect of agreement by landlord to repair, 631. artificial cut or drains, 755. ^ implied grant or reservation of drains, &c., /oo. licence to make or use drains, &c., 756. ^^ exting-uishment or suspension of drains, &c., /ob. DRUNKEN PERSON, lease by, invalidity of, 50. DUCHY OF CORNWALL AND LANCASTER, leases by, 17. application of Agricultural Holdings Act to, 833. ^^^U'owance for, at end of term, 802. And see Manure. DUPLICATE LEASE, 137. See Coitnterpaet. DURESS, meaning of, 50. leases by persons made under duress, oO. DURHAM UNIVERSITY, leases by, 32. DWELLING-HOUSE, covenant to use house as, 705. And see Trade. EASEMENTS, ways, 741. lights, 746. watercourses, 750. including of, or not, in lease, 151. under word appurtenances, 151. in or after 1882, by Conveyancing Act, lo2. 1054 Index. EATAGE OF GEASS, no implied stiinilation as to its quality, 184. EATING HOUSE, covenant by landlord of, not to let adjoining house as, 712. how construed, 71-. EAVES, flow of water from for 20 years, effect of, 758. ECCLESIASTICAL COMMISSIONEES, consent of, to certain ecclesiastical leases, 28, 29. may inspect repairs and give notice of dilapidations, 30. consent of, under Agricultural Holdings Act, 1883... 925. ECCLESIASTICAL LEASING ACT, 1842... 28. 1858. ..28. ECCLESIASTICS, leases by, 21, 26. leases to, 73 ; not more than 80 acres without Bishop's leave, ih. licence when required must specify length of term, 73. penalty for excessive holding, 401. an acre, 73. EDUCATIONAL SOCIETIES, sites for building, 74. EFFLUXION of time, expiration of lease by, 312. And see Holding Over. EJECTMENT, former proceedings in action of, 830. name no longer technical in High Court, 836. given in County Courts under Act of 1888... 871. termed, under Judicature Act, " recovery of land," 836. if for forfeiture, notice prior to, 349. except for non-payment of rent, 350. See Kecovebyof Premises by Landlord ; Forfeiture. ELEGIT, leases by tenants under an elegit, 62. writ of, does not extend to goods, 283. leasehold interest not " goods," 283. registration of, in Middlesex or Yorkshire, 283. must be executed within thi-ee months, 284. judgment not to affect land till delivered in execution, 284. EMBANKMENT against floods. compensation for, under Agricultural Holdings Act, 819. EMBLEMENTS, nature and derivation of, 789. anniial artificial profits, 789. right of entry for, 789. prolongation of tenancy of land in lieu of, by Landlord and Tenant Act, 1851... 789. tenant may hold till end of current year, 789. and then quit, 790. general rule as to persons entitled, 790. tenants for life and their undertenants, 790. clergyman and their undertenants, 790. tenants from year to year, 790. strict tenants at will, 790. tenants under execution, 790. EMPTY HOUSE, recovery of, by landlord before justices, 833. And see Deserted Premises. ENABLING and disabling statutes, 21, 22. Index. 1055 ENCLOSTJEE of common, 741. ENCEOACHMENT, by tenant, is for benefit of landlord, 781. same rnle applies although landlord consents, 781, 782. may be recovered in ejectment, 85.5. ENGINE, power of trader tenant to remove, 668. agricultural tenant may not remove, at common law, 671. may remove, under Ag. Hold. Act, 1883, s. .34... 673. text of that enactment, 673. And see Fixtures. ENJOYMENT, QUIET, 718 et seq. See Quiet Enjoyment. ENSILAGE, compensation for, under Agricultural Holdings Act, 819. ENTEY, rights of, may be disj^osed of by deed, 2. of lessee, 209 ; interesse termini, 209. necessary to change an interesse termini into a term, 209. tinder agreement for lease or void lease, 231. how tenancy from year to year created, 231. to avoid a lease, 328. And see Forfeiture. by executor, effect of, 306, 308. personal liability on, 306. qualified as to rent, 306. by landlord to do repairs, 639. to inspect fixtui'es, &c., 687. See Eepair. peaceable, withoiit action of ejectment, 836. forcible, criminal liability for, 891. And see Forcible Entry. EPISCOPAL AND CAPITULAE estates, leases of, 29. EQUITY, Doctrine as to Agreement for Lease, 91. effect and authority of Walsh v. Lonsdale, 91. of lease, mortgage of rights of mortgagee, 275. whether breach of covenant not to assign, 700. waste, definition of, 647. EEASUEE, in a deed, deed may be good in evidence, 212. avoidance of lease for, 211. EEEOE, erroneous lease, how corrected in equity, 228. correction of clerical by court, 143. ESCEOW, effect of delivery of lease as, 201. ESTIMATE of dilapidations, 687. valuation of fixtures, 688. as between outgoing and incoming tenants, 688. surveyor's remuneration, 689. ESTOPPEL, leases by, 2, 56, 224. leases by a mortgagoi*, 56, 224. nature and use of estoppels, 223. effect of, on lessor, 224. on lessee. 224. on validity of lease, 226. as to description of premises, 226. by demise, by tenant on suii'erance, 246. by an attornment, 280. surrender by, 319. a tenant is estopped from denying his landlord's title, 225. may show its subsequent cesser, 225. may show title in other than claiming assignee, 225. against reversioner by paying rent to life tenant, 225. 1056 Index. ESTOVEES, leases of, 86 ; common of, 737. ETON COLLEGE, leases by, 32, corn rent under, 409. EVICTION, for forfeiture for breach of covenant, notii.^e before, 349. except when breach is non-payment of rent, 350. law and practice of and in ejectment. Chap. XXIL, p. 835 apportionment of rent, in respect of estate, upon, 430. in respect of time, 436. suspension of rent by, if eviction by landlord, 430. And see Eecovert of Premises bt Landlord. EVIDENCE, parol, when admissible to explain lease, 145. receiving unstamped documents in, 199. of cvistom of country, 146. EXCEPTIONS and reservations, 188 ; forms, 968 etseg. construction of exception in favour of lessee, 188. trees, &c. 190. apple trees, 190. game, 191. water, 191. mines, 191. EXCESSIVE DISTRESS, 557. See Distress for Eent. EXCHANGES. Distress for rent reserved for equality, 458. EXECUTION, of lease for more than 3 years by deed, 135. of lease by deed, seal necessary, 200. whether signature necessary, 201. faiku-e of lessor to execute, 201. failure of intending party to execute, 127. appointment of person to execute for him, 127. of lease as an escrow, effect of, 201. of lease under a power, 220. EXECUTION (WEITS OF), fieri facias, sheriff's duty on executing, 282. seizure of equitable reversionary interest, 282. of term for years, 282. by landlord for rent unpaid, 328, note (Z). of tenancy from year to year, 282. elegit, 283. registration of, 284. judgment not to affect land till delivered in, 285. proviso for re-entry in case of, 333. no relief against forfeiture, 350. goods taken in, may not be distrained, 476. goods may not be taken in, till one year's rent paid, 527. text of s. 1 of Landlord and Tenant Act, 17U9...527. And see Distress. in action for recovery of land, 858. by writ of possession in High Court, 858. at what time such writ may issue, 858. issue, though landlord's term expired, 858. by warrant of possession in County Court (holding over), 858. in action for rent unpaid, 866, 868. in ordinary action, 876. EXECUTOES AND ADMINISTEATOES, leases by, 52. lease goes to, and not to heirs by law of England, 52. otherwise by law of Scotland, 52. reversion goes to, by Land Transfer Act, 1897.- -52, 303. in case only of death after 1897. ..52, 303. And see Eeal Eepeesentative. executor may demise before probate, 53. administrator may not before letters, 53. may not grant option of purchase, 52. Index. 1057 EXECUTORS AND ADMINTSTRATOES— conhnucd. assent of executor to bequest of lease, 53, 30-4. married woman executrix, lease by, 53, 305. effect of probate, 304. of letters of administration, 304. executor proving, cannot renounce term, 304. of tenants from year to year, 305. must give or receive notice to quit, 305. actions by them, 305. not personally liable for rent where premises valueless, 3CG. shape of defence in such case, 306. personally liable for repairs, 30G. for non-insurance, 309. for party-walls, 309. " entry " necessary to personal liability, 307. executor de son tort, 305. how ttey may get rid of personal liability, 309. may assign over to paiiper, 306. right of lessor to follow assets, 310. actions by, for breaches of contract in testator's lifetime, 305. distress by, under Civil Procedure Act, 1833, ss. 37, 38. ..459. text of those enactments, 459. how far liable for use and occupation, 579. action against, for specific performance, 124. EXPENSES of lease and counterpart, 206. scale of solicitor's charges, 207. text of " Eemuneration Order," 911. of distress for 20L or less, limit by Distress (Costs) Act, 516. for more than 201. iinder Distress for Kent Rules, 517. penalty for over-charges, 518. EXPIRED LEASE, custody of, lessor cannot obtain, 782. EXTENT, effect of, on a distress, 478. EXTRA RENT for hay or straw sold, &c., how recoverable, 472. FACTORS. Goods in possession of, privileged from distress. 475. EAIR AND MARKET, leases of, 87. FALLOWING, necessity for, 804. allowances for, at end of term, 804. FARM, what it comprises if let by deed, 152. tenant of landlord having uncertain interest, 789. common law right to emblements, 789. statutory right to remain till end of current year, 789. Sale of Farming Stock Act, 1816... 471 ; text of Act, 8C9. conversion of, into market garden, no injunction against, 646. obligation to cultivate, 614. four course system, 644. form of agreement for yearly letting of, 950. lease of, 967. And see Agriculture— Embleiie:jts- FlXTUBES. FARRIER, "horse being shod by, privileged from distress, 474. FEE FARM RENT, ordinarily no distress for, 445. FEE SIMPLE, enlargement into of residue of long term, 4C6. FEES payable in County Court on a replevy, 547. statutory, in levying distress, 516, 935. L.T. 67 1058. Index. FELONS, leases by, 50 ; to, 77. specific performance by or against, 125. ENCES, 655. ownership of agricultural fences, 655. obligations of tenant to repair, 656. rights as to fences, boundaries and party-walls, 655. waste and destruction of, 656. remedies for non-repair of, 655. by landlord against tenant, 655. by third party, against tenant, 777- tenant must preserve boundaries of land demised, 656. compensation for, under Agricultural Holdings Act, 819. removability of, 673. barbed wire, liability of tenant for damage by, 777. FEEiE NATURE, animals, absolutely privileged for distress, 468, 473. FERRY, lease of, 149. FEVER, criminal liability in letting premises infected by, 888. And see Infectious Disease. FIERI FACIAS. See Execution (Writs or), leases under, 62. sheriff's duty on executing, 282. seizure of equitable reversionary interest, 282. of tenancy from year to year, 282. of term, where no proviso for re-entry, 328 (l). FINE, prohibition of, for ecclesiastical lease, 30. may not be taken by tenant for life, iinder act of 1877... 5. See Premium or Fine. regard to be had to, under act of 1882... 7. for lessor's consent to underlet, not to be taken, 698. FIRE, lessee not liable for accidental, 690. subsequent liability of lessee to rent, 437. effect of stipulation for abatement of rent, 439. stipulation not " usual," 127 ; form of it, 945. effect of, on agreement for lease, 116. liability to repair or rebuild, 631. liability for use and occupation, 587. obligation under Building Act to expend insurance money, 632. whether this act applies to landlords, 438. covenant to insure, &c., 690 ; forms, 958, 960,977. See Insurance. FISHERY, how demised, 88. when the land is included, 149. action will lie for use and occupation of, 581. for right with rod and line, 581. common of piscary, 738. FIXTURES, meaning of, 661. description of, in schedule of lease, 194. exempt from distress for rent, 472. criminal liability of tenant stealing, 890. tenant's, 662, 681 ; maliciously severing, 890. landlord's, 662. examples : barns, 662 ; stills, 663 ; conservatory, 663 ; salt-pans, 663 ; mules (Hellawell v. £ashfood), 664. between what classes of persons questions arise, 665. Index. 1059' FlXTTJ'R'ES— continued. general rule as to fixtures, and their removability, 666. as to annexations by a tenant, 666. exceptions, 666. for the jnirposes of trade, 667. decisions, 668. extension of the removability, 669. for ornament aiid convenience, 669. conservatory, window sashes, pump, 670. summary of what may be removed, 670. for agricultural purposes, 671- tenant may not remove at common law, 671. removal by Landlord and Tenant Act, 1851... 672. buildings, engines, machinery, 672. consent of landlord, 672. removal by Agriciiltural Holdings Act, 1875.. .672. application of Act, 672 ; rejDeal of Act, 672. Act could be " contracted out of," 672 ; and was, 672. removal by Agricultural Holdings Act, 1883... 673. before end of tenancy, 673, 675. or within reasonable time after, 673, 675. conditions of removal, 673. payment of rent, &c., 673. avoidance of damage, 673. making damage good, 673. notice to landlord, 673. landlord's option to buy, 673. contracting out of the act, 674. Contracts as to removal, 676. renounced fixtiu-es cannot be taken in execution, 677. general words, 677 ; what passes under, 679. sale of, not within Statute of Frauds, 679. mortgage of, 680 ; separate mortgage of, 680. bill of sale of, 680, 681. rights of trustees in bankruptcy, 294, 295. of mortgagees, 295. Time for removal of, 682. during term or prolongation of it, 682. right lost by quitting and re-entry, 682. case of tenancy at will, 683. of head-lease and sub-lease, 683. of special agreement, 684. effect of surrender, 684. mode of removal, 684. Landlord's remedy for wrongful removal of, 685. action to recover value, 685. damages for improper sale, 686. survey and valuation of dilapidations and fixtures, 687. right of landlord to enter and inspect fixtures, &c., 687. estimate of dilapidations, 687. valuation of, between outgoing and incoming tenants, 688. surveyor's remuneration, 689. customary fee, 689. FLATS, construction of covenant to employ resident porter in, 728. owner liable for injury to stranger by defective staircase, 728. injunction to repair staircase, 728. club, conversion of part into, restrained, 728. though no independent covt. by owner for residentiality, 728. FLINTS, power of tenant to convert to own use, 191. FLOOD, apportionment of rent where land lost^by, 432. embankment against, compensation for, 819. FLOWEES, irremovability of, by tenant, 675. 67—2 1060 Index. FOOD AND WATEE, to be supplied by distrainer to animals impounded, 506. See Animals. FOECIBLE ENTRY, criminal liabilitj' generally for, 891. what is forcible entry, 893. committal of offence by one person, 891. if by three or more, a riot, 893. restitution by High Covirt after, 892. by landlord after term expired, 780. indictment for, 891. no right of action for, 780. action for independent wrong, e.g. assault, 780. proviso authorising, void, 783. by tenant, arrest of tenant, under Met. Police Act, 781. FOREHAND RENT, may be distrained for, 40G ; effect of payment of, 40G. satisfaction of, by execution creditor, 529. FOREIGN ATTACHMENT in London inapplicable to rent, 424. FORFEITURE, condition for, on breach of covenant for rent, "usual," 128, 130. on breach of other covenants, not " usual," 130. for bankruptcy of lessee, 280, 334. for execution, 333. for ceasing to work mines, 334. for non-production of cestui que vie, 335. for breach of negative covenant, 332. for breach of covenants, must be supported by condition, 328. by what acts incurred generally, 329. time and place of performance of condition, 330. effect of the Statute of Limitations, 330. estate of party entering, 330. construction of provisoes for re-entry, 330. insensible proviso, 332. who may avail themselves of a forfeiture, 335. not the lessee, 335. the lessor or his assigns, 335. equitable owners, 335. trustees, 33G. devisees, coparceners, &c., 336. assignee of reversion under 32 Hen. 8, c. 34. ..336. construftion of this act, 263. assignee of part, 266. fornon-payment of rent, proviso for, 337. formal demand at common law, 340. proviso dispensing vnth such demand, 337. when unnecessary by C. L. P. Act, s. 210... 338. under Settled Land Act, lease must contain, 7. waiver of, 341. See Waiver. notice before proceedings for, 349. excejDt for non-payment of rent, 350. relief against forfeiture for non-payment of rent, 356. not iiffected by Conveyancing Act, 350. for breach of covenants generally, 349. See Relief against Forfeiture. effect of, on specific performance of contract for lease, 117, 123. where the alleged forfeiture is disputed, 123. of right to renew a lease, 394. See Renewal. l)roceedings in ejectment on, 835. See Recovi:ry Oj' Pr-EMiSES BY Landlord. FORMAL CONTRACT, effect of agreement subject to preparation of, 111. Index. lOGl FOEMS, of precedents for leases and agreements, list of, 941. concise statutory form of lease, 901, 961. of notices to quit and other notices, 980. of notices of particulars of breaches under Conv. Act, 984. of proceedings in distress, 992. of certificates of certificated bailiffs, 934. of proceedings in actions, 998. in connection with disclaimer of bankrupt's lease, 293, 983. applicable to Agricultural Holdings Act, 1016. FOETHWITH, meaning of, in a covenant to repair, &c., 623. FOX-HUNTING, trespass for, not authorised, 764. barbed wire fences, liability of tenant for damage by, 777 (x). FRANCHISES, leases of, 87. FEAUD, of agent, rescinding for, 69. refusal of specific performance where, 114, 118. rescinding of lease for, 227. in Common Law Division, 229. FEAUDS (STATUTE OF), agreement for lease must be in writing signed, 90. signature, mode of, 99. oral agreement with part performance, 106. lease for more than thi-ee years must be in writing signed, 135. must be by deed, 135. contract for sale of fixtures not within, 679. FEAUDULENT EEMOVAL to avoid a distress, 499. goods may be seized within thirty days anywhere, 499. saving for bona fide sale, 500. power to break open, 500. seizure only when tenant in possession, 501. fraudulent though not clandestine removal, 501. presence of constable, 502. statute applies to goods of tenant only, 501. in metropolitan police district, 502. constable may stop carriages, 502. forfeiture of double value by tenant, 502. where goods less than 501., through justices, 502. otherwise by action, 503. FREE, meaning of free of out-goings, 592. demise of house rent-free, effect of, 239. devise rent-free during good behaviour, 313. FRIENDLY SOCIETIES, leases to trustees of, for meetings, 80. FEOM, meaning of (exclusive or inclusive), 159, 160. FEUIT TEEES, irremovability of by non-traders, 675. compensation for under Agricultural Holdings Act, 819. under Allotments Compensation Act, 609. under Market Gard. Compensation A ct, 824. removability of, 824. distress for rent on fruits, 470. FUENISHED APAETMENTS. See Lodgings. rent of, may be distrained for, 446. FUENISHED HOUSE, implied stipulation as to its fitness for habitation, 184. breach of, by bugs, 184. by measles, 184. whether bona fide belief in fitness or not, 185. 1062 Index. FUENISHED B.OTJSE— continued. no implied warranty of continuance of fitness, 185. rent issues out of the realty, 237. " collateral " agreement as to sending in furniture, 93. FURNITUEE, no action for injury to by landlord's removal of roof, 781. action for damage to by forcible entry, 780. distress on, for rent, 468. exception for fixtures and bedding, 479. comprised in debentures of company, 467. criminal liability of tenant or lodger stealrng, 690. FUETHEE ASSUEANCE, covenant for, runs with land, 173. implied in assignment of lease, 271. OALE, ekch periodical payment of rent so termed, 413. -GAME, 759 et se-q. demise of right to, by deed, 88. what it includes, 759. common law right of tenant to, 759. statutes relating to, 759. Ground Game Act, 1880... 766. concurrent right of occupier, though game reserved, 766. full text of Act, 9U9 ; and see Ground Game. exceptions and reservations of, 759. parol reservation, how far good, 60. construction of written reservation, 60. gi'ant of sporting right to third person, 60. right of grantee to turn on game, 60. grantor may fell timber, 60. rating of right of sporting, 609. deduction of rate from vent, 609. ■contracts not interfered with, except by Act of 1880... 761. text of ss. 8, 11, of Game Act, 1831.. .761. landlord entitled to, may authorize other persons, 762. penalty on tenant sporting where game reserved, 762. " reservation " not created by implication, 762. .summary pi-oceedings against trespassers, 762. saving for fox-hunting, coixrsing, &c., 762. defendant to jjrove any authority on which he relies, 763. arrest by tenant of trespassers and poachers, 764. actions lay tenants against trespassers, 764. no saving for fox-hvinting, 764. condition for re-entry on conviction against Game Acts, 765. does not rxin with reversion, 765. damage to crops by game, 766. GAEDENS, compensation for, under Agi-icultural Holdings Act, 819. requirement of landlord's consent, 819. compensation for crops of cottage under Allot. Comp. Act, 809. resumption of land for purpose of making, 361. notice to quit in case of, 361. recovery of allotment before justices, 881. market, application of Agricultural Holdings Act to, 819. conversion of farm into by tenant, not actionable, 646. compensation, under Market Garden Compensation Act, 824. GAS, rates payable by tenant, 619. obligation of company to supply incoming tenant with, 619. without requiring arrears of outgoer, 619. meter exempt from distress by statute, 468. also gas stoves, 468. gasalier, whether removable fixture, 663. Index. 1063 GAVELKIND, customary lease by infants aged 15... 41. distress by heirs, 456. GENEEAL WORDS, implied by Conveyancing Act in leases by deed, 152. only in leases after 1881... 153. GIVE. No covenant to be implied from tliis word, 718. GLASS, taking away, waste, 647. replacing broken by tenant from year to year, 637 (a). breach of repairing covenant by breaking, 629. GLEBE LAND, lease of, by parson, with certain consents, 26. saving tor 10 acres near parsonage, 26. GLOUCESTER, STATUTE OF, remedy for waste under, 650. application of, to permissive waste, 651. repeal of by Civ. Troc. Acts Eepeal Act, 1879... 650. GOOD BEHAVIOUR, devise of house rent free dirring, 313. GOODS, leases of, 88 ; distress on, 4SS. GRANARY, removability of, by tenant, nnder Ag. Hold. A-t, 673. GRANT, . no covenant to be implied from this word, / lo. lessor may not derogate from his own, 186. GRASS, plovighing, injimction against, 653. penal rent for, 421. laying down, compensation for, 819. consent of landlord condition preseleat, 819. distress for i-ent on, 470. eatage of, no guarantee of qviality of, 184. GROCER, sale of wine by, when not breach of covenant, /09. GROSS, covenant in, does not run with land, l7o. due payment in, cannot be distrained for, -115. GROUND GAME, agreement to keep down, effect of, 765. compensation for damage by, 766. right of occupier to, under Ground Game Act, 1880.../ 66. text of that Act at length, 909. concurrent with that of landlord, 766. if lease after 7th September, 1880... 766. lease before that date not interfered with, 7o6. sporting rights may be let by tenant, 767. limitations of concurrent right, 767. agreements in contravention of act void, 767. GROUND LEASE, notice to sublessee of covenants of, 706. See buBLSASE. GROUND RENT, payment of, is payment of rent pro-tanto, 418. distress for, whether sheriff must pay rent, 5l9. GROWING CROPS, distress on, for rent, 470. taken in execution, liable to a distress for rent, 471. mvist be delivered up at end of tenancy, 779. See EiiBLrMENTS — Outgoing and Incoming Tenants — Tillages. 1064 Index. GUANO, compensation for, by custom of country, 806. by Agi'icultural Holdings Act, 820. GUAEANTEE for rent, &c., 227. ceases on notice to quit, although notice waived, 227, 382. GUAKDIANS (of infants), different sorts of, 42. leases by, 42. distresses by, 458. GUAEDIANS OF UNIONS, may hire buildings for union workhouses, 79. temporarily, without seal, 79. GUN LICENCE, when not required by occupier, 765. HABENDUM, office and use of, 153; forms of, 957, 961, 964. terms for life or lives, 154, 155. commencement of, 155. how far subsistence of lives warranted, 156. commencement of term for years, 158. duration of term for years, 163. See Duration. what certainty is requisite generally, 163. certainty with reference to collateral matters, 164. determination of tenancy from year to year, 164. at end of first year, 164. until premises required to be pulled down, 164. so long as rent paid, &c., 165. where an optional number of years is fixed, 165. where there is a recuiring number of years, 166. where the term depends on a contingency, 166. where discrepancy with reddendum, habendum prevails, 154. exceptions where manifest mistake in habendum, 154. HAEES. See Ground Game, Game. are " game " within the Game Acts, 759. statutory power to shoot, without licence, 766. statutory right of occupier to kill, though game reserved, 766. c )ursing of, trespass by, no summary proceedings for, 762. HAY, restriction on' trustee in bankruptcy disposing of, 289, 295. right of tenant as to, at end of term, 802. construction of covenant not to sell, 645. penal rent for selling, 421. does not run with land, 176. distraining landlord may not sell too cheap, with condition for con- sumption on premises, 514. payment for, by purchasers of reversion, 256. HEAD LEASE, notice to sublessee of, 706. See Sublease. HEDGE AND DITCH, property in, 635. cutting hedge, when waste, 635. HEIES. of landlord, reservation of rent to, 414. apportionment of rent between, and executors, 434^ bound by covenant in lease after 1881, by Conv. Act, 177. HIGHWAY BATES, made on occupier, 611. HOLDING OVEE, consequences of, 780, 782. power of iandloi'd to break in, 780. after landlord's notice, double vahie, 784. after tenant's notice, double rent, 787. Index. 1065 HOLDIXG OVER— cojiiujuecL implied tenancy from year to year by, 233, 783. on terms ajiplicable to yearly tenancy, 233. what those are, 232. recovery of premises for, 83G. in High Coiu-t by siaecial proceeding, 839. under Order XIV., 844. by ordinary action, 84.5. in County Court up to 50Z. a year value, 859. before justices, where term of seven years or less, 877. if rent not more than 201. a year, 877. notice to tenant before proceedings, 877. duplicate of, to be annexed to complaint, 877. landlord's common law right of re-entry iinaffected, 878. parish property, 880. siunmons before justices in one month after notice, S80. when tenant liable for use and occupation, 577. of sub-tenant, when tenant liable for, 780. in action for use and occupation, 577. "holding over " order by tenant distrained on, 512. HOLDINGS, SMALL, letting of, by County Council, 40. HOP PLANTING, compensation for, under Agricultural Holdings Act, 819. HORSE, at livery may be distrained, 474. at farrier's may not, 474. HOSPITAL, lease to, prevented by covenant against " business," 704. lease by governors of, 38. HOUSE, what it comprises, 148. unfurnished, no warranty of fitness of, 18i. otherwise, if house furnished, 184. if let at certain low rent, 185. building of, is not waste, where no injury to inheritance, 649. covenant not to convert into shop, &c., 705. to use as dwelling-house only, 705. one of a block, held under restrictive covenants, 707. letting after infectious disease, penalty for, 888. And see Infectious Disease. report of, by tenant, 62G ; by landlord, 638. And see Repairs. HOUSE AGENTS, liability for neglect, &c., 69. must inquire as to solvency of intending tenant, 69. right of, to commission, 70. ordinary commission of, 70. must be licensed for letting of furnished house, 71. exceptions for auctioneer, land agent, &c., 71. HOUSE-BOTE, 737. HOUSE TAX, 610. exemption of trade premises from, 610. HUNTING, shooting and fishing, must be demised by deed, 88. on another man's land, a trespass, 764. no summary proceedings in respect of, 762. See Game. \ HUSBAND AND WIFE, leases by, at common law, 46. effect of Married Women's Property Act, 47. -See Married Woman. HUSBANDRY, obligation to cultivate farm, 644. And see Agriculture, Custom, Farm, Fixtures. 1066 Index. IDIOTS, leases by, prima facie binding', 48. but may be avoided, 48. And see Lunatic. ILLEGAL DISTEESS, 553. See Replevin— Distress for Eent. ILLEGALITY, void and nugatory covenants, 171. when lease void for, 171, 211. defence of, to action on agreement for a lease, 102. effect of, in action for specific performance, 115. IMPLIED COVENANT OE CONTEACT, 182. when it ceases, 182. no implied contract for title by intended lessor, 102. nor on contract for sale of an agreement for a lease, 260. nor as to condition or fitness for the intended purpose, 184. exception in case of furnished house, 184. for quiet enjoyment, 7i 8. from express words in other covenants, 186. implied contract by lessee to repair, &c., 636. none by lessor, 638. warranty by agent that he has sufficient authority, 68. IMPOSSIBLE covenants, 171. not enforced in equity, 118. IMPOUNDING a distress, 447, 505 et seq. And see Pound. what amounts to an impounding, 448. imjjounding on premises, 508. tenant may not be excluded, 509. corn may not be removed, 509. animals must be fed and watei-ed, 506. any of the public may supply food and water, 506. tender before, of rent with expenses makes distress illegal, 447. tender after, is too late to support, replevin, &c., 447. IMPEOVEMENTS, covenant to pay for, runs with land, 175. binds remainderman, 11. on agricultural holding, limited owner may allow for, 416. and need not exact " best rent," 416. order as to, on leave to trustees in bankruptcy to disclaim, 294. compensation for, under Agricultural Holdings Act, 812. See Agriculture. under Allotments, &c. Act, 809. under Market Gardeners' Compensation Act, 823. under custom of country, 805. See Custom OF Country. " pi-ivate improvement rate " and incidents of, 615. INCLOSUEE of commons, 741. INCOME TAX, covenant against deduction void, 599. See Property Tax. INCOMING TENANT. See Outgoing and Incoming Tenants. right of pi-e-entry by, under custom of country, 794. tables of various customs, 796. INCOEPOEEAL HEEEDITAMENTS (leases of), 84. definition of, 81. demise of, by deed only, 84, 88. advowsons, 85. tithes and tolls, 81. commons and estovers, 86. ways, 87. franchises and corrodies, 87. annuities, 88. right of sporting, 88. action for use and occupation of, 581, Index. 1067 INCEEASED EENT, no injunction for breach of covenant in case of, 419. in putilican's lease for not taking- lessor's beer, 422, 716. new tenancy not created by agreement for, 234. payment of, effect of as part performance, 108. for tillage, 421 ; for liay or straw sold, ib. distress for, 446. not for debt for goods siipplied, 416. INCUMBENTS, lease by, with consent of bishop and patron, 26. leases to, not more than eighty acres without leave, 73. actions by, for use and occupation, 575. exercise of powers vmder Agricultural Holdings Act by, 833. INDEMNITY, to broker on distraining, 496. for rent, &c., by surety for lessee, 227. of assignor by assignee, 271. effect of assignee's discharge as bankrupt, 272. of original lessee by successive assignees, 272. INDENTUEE, meaning of, 138 ; leases by, 138. INDEPENDENT or dependent covenants, 177. conditional covenant for rej^air, 177. INDICTMENT, of tenant for stealing fixtures, &c., 890. pulling down biiilding, 890. pound-breach, 525. of landlord for forcible entry, 891. INDOESEMENTS on lease, 194. omitted covenants, &c., 194. made before execution, 195. after, 195. memorandum of attestation, 195. INFANTS, leases by, not void but voidable, 41. confirmation of, when of age, 41. under order of court, 41. leases by guardian for, 42. leases by trustees of settled land for, 44. general management for, 45. leases to, not void, but voidable, 74. election to avoid, when to be made, 75. avoidance of for misrepresentation of age, 75. renewal of lease to, 75. where infant jointly interested with another, 75. no specific performance by or against, 125. case of infant being joint tenant, 125. production of infant cestui que vie (6 Ann. c. 18), 157. notice to quit by, 363. INFECTIOUS DISEASE, penalty for letting house or apartments after, 888. under Public Health Act, 888. in Metropolis, 888. false statements as to, on letting, penalty for, 888. definition of, 888. power to quit furnished house for, 185. INHABITANTS OF PAEISHES, cannot as such be lessees, 82. INJUNCTION, by landlord against tenant to restrain waste, 6o3. not permissive waste, 647, 654. cutting down trees, 654. to enforce replanting, 654. 1068 Index. mj'ONCTlO'N—continurd. to restrain ploughing up pasture, G.j3. writ of summons should be endorsed for, 653. grantable by interlocutory order, 653. usually refused where nominal damage, 653. except where intention to repeat it, 653. to restrain injuring fish-ponds, 654. to restrain removal of fixtures, 654. to restrain a distress, 453. to compel observance of restrictive covenants, 704. to restrain use of house as hospital, 708. against sub-lessee on covenants of head lease, 276, 706. by tenant against third person, 776. to restrain obstruction of lights, 7tO. INN, exemption of goods from distress at, 475. goods must be on the premises, 475. penalty for letting room in, after infectious disorder, 8S8. INQUIRY, WEIT OF, how far required in action for use andoccu;;:a- tion, 585. INEOLMENT, of leases by tenant in tail, 3. exception, 3. INSENSIBLE PROVISO, refusal of court to give effect to, 332. INSOLVENTS, no specific performance at their suit, 125. And sec Bankruptcy. INSPECTION, of lease referred to in pleading, 566. of premises as to state of repair, 639. INSURANCE. And sec Fire. policy is a contract of indemnity, 690. covenant to insiire runs with the land, 174. forms of covenant to insure, 958, 960, 977. laying out of insurance monej' in rebuilding, 438. tenant's duty to lay out money, 438. landlord's duty said not to exist, 438. by executors, 309. what amounts to a breach of covenant to insure, 692. continuing breach, 693. action against siib-lessee, 694. notice, before proceeding for forfeiture, 349. relief against forfeiture for not insuring, 349. under Conveyancing Act only, 349. repeal of prior statutes, 350 ; effect of them, 348. where premises burnt after option to purchase exercised, 402. INTEEESSE TERMINI, before entry lessee has only, 209. and cannot sue for damages. Sec, 210. but may maintain ejectment, 210. INTEREST, on rent, when recoverable, 568. agreement for, does not take away the right to distrain, 427. form of covenant to pay on rent in arrear, 958. INTERLINEATIONS in a deed, 195. See Alterations. INTERROGATORIES, ef usal of, as to expiry of landlord's title, 853. in action for fraudulent removal of distress, 504. INTOXICATED PERSONS, leases by, 50. INTOXICATING LIQUORS, contracts against sale of, 709 ; for sale of, 713. And see Public House. Index. 1069 INTEUDEES, not entitled to notice to quit, 366. demand of possession sometimes advisable, 366. not liable to action for use and occupation, 572. INVENTOEY on a distress, 158 ; of fixtures, &c., 194. lEON MINES. See Mines. rateability of, under Eating Act, 187-i...608. IREEGULAE DISTEESS, action for, 559. See Distress foe E::nt. special damage must be proved, 561. lERIGATION WOEKS, compensation for, under Agricultural Holdings Act, 819. JOINDEE OF CAUSES OF ACTION, any may be joined generally, 550. exception as to replevin in County Court, 547. what with action for recovery of land, 84-7. in High Court, mesne profits, damages, &c., 8-47. in Coanty Court similarly, 873. JOINDEE OF PAETIES, of plaintifi^s in action of covenant, 56 1. of defendants, 565. bringing in sub-lessee as third party, 278. JOINT AND SEVEEAL COVENANTS, 169. JOINT STOCK COMPANIES in liquidation, distress on, 465. And see Company. 7dINT TENANTS, leases by, 13 ; to each other, 14. distresses by, 454. renewed lease obtained by one of them in his own name, 3S7. effect of notice to qiiit by one of, 369. notice to quit to one of them, 370. where infant one, no specific performance against adult, 125 JOINTUEE, leases by tenants in, 12 ; distresses by, 459. JUDGMENT, registration of, 284. in action for use and occupation, when evld3n3e of tenancy in a subsequent action, 584. enforcement of, by writ of possession, 858. thovxgh landlord's own term expired, 853. for rent, distress made unlawful by, 445. JURY, in County Courts actions to recover small tenements, 860. JUSTICES, apportionment of rent by, under Lands Claus33 Act, 432. proceedings before, for recovery of deserted premises, 883. of small tenements wrongfully held over, 877. parish property, 880. cottage allotments, 881. proceedings before, for recovery of goods >f lodger, wrongfully distrained, 481. of railway rolling stock, 482. of doubleValue of goods fraudulently removed, 502, 534. where extortion by broker (201. or less), 518. if Agricultural Holdings Act applies, 561. appeal to quarter sessions, 562. 1070 Index. KEEP IN EEPAIR, means "pvit in repair," 628. KETS, effect of accepting, towards surrender, 320. not liable to distress for rent, 473. KNOCKED, use of, by lodger, 23S. LABOUREES' DWELLINGS, contract implied for fitness, where rent small, 185. And see Working Men's Dwellings. LADY-DAY (notice to quit on), 374, 379. LANCASTER (DIJCHY OF), leases by, 17. consent by, to acts under Agricultural Holdings Act, 925. LAND, includes arable, meadow, and pasture, 1 17. and houses and mines, 148. meaning of " rvmning witla," 172. binding of assignees by notice, 173. what covenants "run with," 173. to pay rent, repair, reside, 173. to leave land stocked with game, 173. for quiet enjoyment, renewal, &c., 173. to renew lease, 174. to insure, not to assign without licence, 174. to pay for improvements, 175. operation of Conveyancing Act, 177. heirs and assigns bound, though not named, 177. what covenants do not "riuiwith," 175. any personal covenant, 175. conditions for re-entry, what " run with," 176. recovery of, action and other proceedings for, 835. See Recovery OF Premises by Landlord. LAND COMMISSIONERS, appointment of umpire by, under Agricultural Holdings Act, 827. substitution of Board of Agi-iculture, 834. LANDLORD. See Lessor — Lessor's Title — Reversion. title of, tenant estopped from disputing, 225. LAND TAX, Chap. XV., Sect. 4, p. 601. the acts as amended by Finance Act, 1896. ..601. tax raised by eqiial. rate according to annual value, 601. meaning of " annual value," 602. included in general covenant to pay taxes, 590. may be levied by distress and sale, 602. acquittance of rent pro tanto, 602. commissioners to settle disputes, 602. express contracts as to, not interfered Avith, 602. tenant liable to the public, 602. with obligation to deduct a proportion from bis rent, 602, 603. express contract by tenant to pay land tax, &c., 603. by landlord, 603. distress for, no breach of covenant for quiet enjoyment, 604. Redemption of, 604. the acts, 604. by whom and upon what terms, 604. not by tenant at rack rent, 604. when redeemed may be recovered as rent, 604. LANDS CLAUSES ACTS, apportionment of rent, where land taken, 432. covenants, &c., remain in force as to land left, 432. compensation for loss of restrictive covenant, 716. covenant not to assign not broken by assignment undc^r, 700. Index. 1071 land teansfee act, establishment of real representative by, 303. See Eeal Eepre- SENTATIVE. LAECENY, by tenants oi- lodgers of fixtures or furniture, 890. of lodger's goods, lodginghouse-keeper not responsible, 238. LEASE, generally, 132 ; forms of, list of, 941. short form of, under Leases Act, 1815... 138. text of that Act, 901. definition of, 132 ; is a conveyance, ib. distinction between leasing and licensing, 133, 134. agreement for any, must be in Avriting, signed, 90, See Agreement for Lease. tenancy from year to year by entry under, 231. if for three years or less, may be by parol, 135. if for more than three years must be by deed, 135. usual words of, 138; must show intention to demise, 139. void, may operate as agreement for, 136. tenancy from year to year by entry imder, 136, 141, 231. effect of loss of, 138. general requisites of a good lease, 134, 138. construction of, 140. ambiguities and clerical errors, 143. parol evidence to vary, inadmissible, 144. exceptions for ambiguity, 144. custom of country, 144, 146. date, parties and premises, 144, 147. description of the property, 146. general words implied by Conveyancing Act, 152. term granted, 153 ; the habendum, 153. for life of lessee, 154. for lives of others, 154. See Life. commencement of term, 158. custody of expired lease, 782 ; lessor cannot obtain, ib. rectification of erroneous lease, 227; in Ch. D. 228. compensation for, 228. setting aside for fraud, &c., 229. vests in personal representative of deceased lessee, 52. LESSEE, who may be, 73 et seq. liability of, after assigning the term, 272. bound by restrictive covenants of lessor's head lease, 276, 706. LESSOE, what pai-ties may be, con^i leration of, 1-72. LETTEES OF ADMINISTEATION, 304. See Executors. in whom land vests, before grant of. See Eeal Eepresentative. LIBEAEIES AND MUSEUMS, leases for, 81. LICENCE, to occiTpy, how it differs from a lease, Ixxx., 133. does not amount to a demise, 133. to moor barge, no demise, 133. to take water, no demise, 133. to enter for a profit h prendre, 88. ^ of occupier, no defence to trespass for game reserved,'./ 62. from Inland Eevenue to kill game, 764. to carry a gun, 765. See Game. to demise, by lords of manors, 61. forfeiture of lease without licence of lord, 64. to assign or sublet, 699 ; form of, 983. operated as total waiver (Dumpor's case), 696. this rule never overruled, 696. 1072 Index. LICENCE — continued. to assign or sublet — continued. this rule never overruled — continued. but abrogated by Law of Prop. Act, 1859... 696. extends only to permission actually given, G96. to one of several is not licence to co-lessees, 696. effect of condition not to withhold arbitrarily, 697. refusal unreasonable because lessor desires possession, G97. refusal to corporation held reasonable, 697. by whom to be obtained on a sale of lease, 261. pecuniary consideration for, 261, 698. whether legally payable, 698. requirement of, prohibited by Conv. Act, 1892... 698. unless that act expressly excluded, 698. is this prohibition retrospective ? 698. covenant not to assign \^or sublet^ without licence, 699. not " usual " covenant, 129. forms of such covenant, 959, 969, 970. effect of, in agreement for sublease, 695. runs with land, 174. what is a breach of such covenant and what not, 699. an assignment, 699. an underlease, 699. letting lodgings, 699. advertisement to sublet, 699. assignment by one partner to another, 701. deposit of lease as a security, 700. lease taken in execution, 700. bankruptcy of lessee no breach, 70. nor marriage of lessee, 701. bequest of the term is not, 701. but contrary has been held, 701. measure of damages for breach of- 702 waiver of forfeiture extends only to one breach, 703. by deed to break a covenant, 182. LICENCE (OF PUBLICAN), no implied covenant by tenant against forfeiture, 714. effect of covenant not to do act to make void, 714. running of, with land, 174. relief against for forfeiture for breach of, 351. application of Beer Acts, &c., to covenants prior thereto, 710. provisions of Licensing Acts in favour of landlords, 714. LIEN, on lease will not prevent an assignment, 262= LIFE, of lessee, lease for, 154, 1C6. See Lives. of others than lessee, lease for, 155. tenant for life, leases by, at common law, 4. under Settled Estates Act, 5. under Settled Land Act, 6, 7, 8. form and duration of lease, 7. restriction on lease of mansion house, 9. farm-house, or small site, 9. building and mining leases, 9. confirmation of lease by remainderman, 10. effect of covenants by, 11. tenant for life agent for trustees to give notice to quit, CBS. LIGHTING RATES, 614. gas rates in the metropolis, 619. elsewhere, 619. watching and lighting rates, under adoptive act, 616. act sviperseded by Public Health Act, 616. LIGHTS. natm-e of right, r.nd of right to air, 746. under Prescription Act, 2 & 3 Will. 4, c. 71, s. 3... 7 16. Index. 1073 JAGBTS— continued. two houses under same landlord, 747. amount of, 7-iS ; how right lost, ib. dominant tenement under lease when ownership severed, 749. disposition by owner of two tenements, 749. how lost, by alterations, 749. by non-user or abandonment, 749. evidence in action by either landlord or tenant, 750. injunction, 750. LIMING, allowance for, at end of term, by custom, 806. under Agricultural Holdings Act, 820. LIMITATION OF TIME, within what time action on covenant (20 years), 567. on simple contract (6 years), 568. distress for arrears (6 years), 489. on agricultural holding (1 year), 490. re-entry, 858. for use and occupation, 583. acquisition of fee simple by tenant at will, 243, 440. by tenant from year to year, 235. with lease in writing, 440 ; without such lease, 440. by lessee after expiration of lease, 440. LIMITED OWNER, leases by tenant for life, 4. payment of compensation for improvements by, 793. under Agricultural Holdings Act, 831. right of tenant to emblements on death of, 789. substituted right to stay on till end of current year, 789. LIQUIDATED DAMAGES (or penalty), 418. difference Vjetween them, 420. no injunction to restrain breach of covenant, 419. increased rent for tillage or hay, 421. for not taking lessor's beer, 422, 716. And see Tied House. LIQUIDATION, restriction of distress on goods of company in, 465. payment of preferential debts, 300, 526. LIVERY, horses, &c., at, may be distrained, 474. LIVES, LEASE FOR, origin of lease for, 155. commencement of lease, 155. subsistence of lives not warranted, 156. devolution of estate on death of lessee, 156. proof of death of cestui que vie, 156. production of cestui que vie, 157. trespass by holding over after dropping of last life, 158. renewal of lease for lives, 394. effect of Land Transfer Act, 1897, on, 156. « LOCAL RATE," application of Rating Act, 1874, to, 620. LODGINGS, who is a lodger, 237 ; form of lettmg, 947. letting, when breach of covenant not to imderlet, 699. whether breach of covenant against business, 706. agreement for lease of must be in writing, 92. action for use and occupation, 581. use of knocker, door-bell, 237. condition implied as to habitableness of, 184. but not for continuance of, 185. what notice to quit necessary, 365. distress for rent of, 446. no distress on lodgers' goods by superior landlord, 480. L.T. 68 1074 Index. LODGINGS — continued. distress for rent of — continued. text of Lodgers' Goods Protection Act, 480. who a lodger, 481. lodger may sne for selling before five days, 481. declaration under Act need not state that no rent due, 482. reletting after infectious disorder, 888. penalty for, under Public Health Act, 888. penalty for not disinfecting, 889. penalty for trying to let and concealing infection, 888. larceny by lodgers, &c., of fixtures, &c., 890. of lodgers' goods, lodging-house keeper not liable, 238. LONDON, infectious disease, penalty for letting after, 888. And see Metkopolis. LOED OF MANOR, lease by, 63. See Manor. LOSS of lease, effect of, 138. And see Cancellation ov Lease. LUCIFER MATCHES, not "noisome or offensive," 709. LUNATICS, leases by them or their committees, 48. extent of committee's powers, 49. acceptance of surrender by, 48. mode of execution of lease, 49. leases to, 76. relief against forfeiture by committee of, 348. renewal of leases by, 396. specific performance at suit of or against, 125. MACHINERY, power of agricultural tenant to remove, 673. See Fixtures. hired, restriction on distress of, on agricultural holding, 483. standings for rent of, cannot be distrained for, 404. MAGISTRATE, remedy before, for wrongful distress in metropolis, 556. only in weekly, monthly, or loL yearly tenancies, 556. See. Justices. MANOR. See Copyholders — Lord of Manor. leases by lord of, 63 ; of waste, 63. distress by lord of, 457. licence of lord to demise, 65. Avhat general words implied in lease by deed of, 152. MANSION HOUSE, tenant for life may not let without trustees' consent, 8. exception for farm house, or site, not more than 25 acres, 9. MANUAL SERVICES, may be reserved as rent, 403. which may be distrained foi', ib. MANURE, contract by tenant of farm to leave, &c., 645. to lay annually, runs with land, 173. compensation for, at end of term, 802. bycustom of country, 802. by Allotments, &c.. Compensation Act, 809. by AgTicultural Holdings Act, 820 ; if purchased, 820. meaning of " manures," 927. MARKET GARDEN, conversion of farm into, not restrainable, 646. application of Agricultural Holdings Act to, 819. Market Gardeners' Compensation Act, 1895... 823. extraordinary tithe-rent-charge on, 623. Index. 1075 MARKETS AND FAIES, may be leased, 87. MAELEBEIDGE, STATUTE OF, remedy for waste under, 650 ; construction of, 650. MAELING, allowance for at end of term, by custom, 806. by Agricixltiiral Holdings Act, 820. MAREIAGE,. of female lessor, 301. of female lessee, 302. no breach, of covenant not to assign, 701. MAEEIED WOMEN'S PEOPEETY ACT, effect of on leases by married women, 46. on leases by married women executrixes, 54. on leases to married women, 76. MASTEE AND SEEVANT, legal effect of occupation by servant, 251. service franchise, 252. liability of servant in ejectment, 252. MATCHES (LUCIFEE), not " noisome or offensive," 709. MEADOW, increased rent for ploughing up, 421. injunction against ploughing up, 653. MEASLES, infection by, quitting of furnished house for, 184. criminal liability for letting hovise infected by, 888. And see Infectious Disease. MEASUEE OF DAMAGE. See Damages. in action by landlord for non-repair, 639. is injury to reversion, 639. substantial, though building about to be pulled down, 640. in action for damage to reversion by third party, 773. not merely damage to reversion, 773. MELIOEATING WASTE, not actionable, without substantial damages, 646. MEMOEANDUM, in writing of agreement for lease required, 90. MEMOEIALS of lease (more than 21 years) in Middlesex or York- shire, 202. how executed and attested, 203. MEEGEE, 326. in case of, next vested estate to be deemed reversion, 328. by Jud. Act none, except by force of equity, 328. of debt for rent in jiidgment for it, 445. so that distress bad, 445. MESNE LANDLOED, execution of repairs by, to save forfeiture, 641. And see Sub-lease. MESNE PEOFITS, &c., when recoverable in action for recovery of land, 856. claim for, may be joined with claim for recovery of land, 852. in actions for recovery of tenements in County Courts, 864. MESSUAGE, what it comprises, 148. See House. METEOPOLIS, detention in of goods fraudidently removed, 502. summary remedy for wrongful distresses within, 556. in case of weekly or monthly tenancy only, 556. or where i-ent not more than 15i. a year, 556. recovery of deserted premises in, 884. concealment of infectious disease in, 889. 68—2 1076 Index. MICHAELMAS-DAY, commencement of lease from, 145. when notice to quit at, sufficient, 374, 379. MIDDLESEX, registry of leases in, 202. if exceeding 21 years, 202. MIDNIGHT. See Noon. rent not in arrear till after midnight, 422. quitting by tenant at, 365. "MILK FOR MEAT," "fair price" within exemption from distress of agisted stock, 486. MILLWHEEL, repair of, 629. MINES AND MINING LEASE. Mines : pass in lease after 1881 in lease of manor, 152. payment of rent for, 407. covenants to work, construction of, 712. exceptions and reservations of, in a lease, 191 ; form of, 969. meaning of "mines and minerals," 191. distress upon lands other than lands demised, 444. rateahility of iron, &c., mines under Eating Act, 1874... 608. rate to be shared between landlord and tenant, 608. saving for specific contract otherwise, 608. specific performance of agreement for lease of, 123. refusal of, for mistake, 118. action will lie for use and occupation of, 581. Mining Lease : tenant for life may grant, 7. at sliding scale of rent, 9. in piu'suance of contract by absolute owner, 10. grant of by bishop, 38. by parson, 28. consent of Ecclesiastical Commissioners required, 28. MINISTER, DISSENTING, tenancy of, at wiU, 240. MINOR, leases by, 41 ; leases to, 74. And s?e Infant. MISDESCRIPTION, in contact for assignment, effect of, 258. in lease, effect of, 228. in contract for lease, effect of, 118. in notice to quit, when immaterial, 373. MISREPRESENTATIONS, by agents will })ind principals, 69. effect of, in avoiding contract for lease, 114. in obtaining cancellation for lease, 228. MISTAKE, as to parties in reservation of rent, 414. by payments of rent to wrong person, 424. in allowances of deductions from i-ent, 425. Tefusal of specific performance in case of, 118. in leases, rectification of, 228. compensation for, 228. MONEY, distress for rent, on, if in bag, 470 ; otherwise not, ib. MONTH, means lunar month, 236. monthly tenancies, 236. See Weekly Tenancies. what notice to quit required, 365. " MORE OR LESS," how construed, 147. Index. 1077 MORTGAGOR AND MORTGAGEE, nature of the relation of the parties, 246, 264. estoppel in case of mortgage, 224. mortgagor may sue for rent or possession, 54. where tenancy expressly agreed on, 246. the " attox'nment clause " in mortgage deed, 246. attornment to second mortgagee, 248. summary judgment under Order XIV., 251. notice of intention to treat mortgagor as tenant, 248. construction of mortgage deeds, 250. effect of covenant to j^ermit mortgagor to take rents, &c., 250. effect of BiUs of Sale Act on, 249.' fraiid on bankruptcy law, 249. leases by mortgagor before the mortgage, 54. mortgagee entitled to rent on notice of mortgage, 55. power of tenant to redeem, 58. leases by mortgagor after the mortgage, 55. mortgagee may at common law eject tenants of moi'tgagor, 55. effect of Conveyancing Act, 1881... 60. leases by mortgagor or mortgagee in possession, 60. validity of such leases, 60. delivery of counterpart to mortgagee, 61. act not retrospective, 62. avoidance of act by agreement, 61. adoption of act by agreement, 62. what leases may be made, 62. contracts for leases, 61. mortgagee has benefit of covenants with mortgagoi-, 62. prevention of interference with easements, 62. lease by mortgagor, effect of, as an estoppel, 56. by mortgagor of furnished house, 58. by mortgagee, 59. by mortgagor and mortgagee, 60. mortgage of reversion, 266. payment of rent to mortgagor, 266. without notice of mortgage, valid, 266. excejit rent in advance, 266. mortgage of term by way of assignment, 274. equitable assignment by deposit, 275. effect of disclaimer of lease in bankruptcy, 295. mortgage of term by way of sub-lease, 296. notice to quit to mortgagor, 366. to tenants of mortgagor, 366. after mortgage imnecessary, 306. notice to c^iiit by mortgagee, 368. distress by mortgagee, 457. by mortgagor, 458. when mortgagee may recover for use and occupation, 574. renewed lease obtained by mortgagee in his own name, 397. the like, by a mortgagor, 397. Tenants' Compensation Act, 810, 832. compensation payable by evicting mortgagee, 810. notice to tenant before eviction, 811. or fuller compensation, 811. MORTMAIN ACTS, exemption of art buildings from, 74. MUNICIPAL CORPORATIONS. See Cokpoeations. may lease, 19 ; and renew leases, 20. building leases for 75 years, 20. for working men's dwellings, 20. lease by for more than 31 years, consent of L. G. Ed. to, 19. MUSEUMS AND LIBRARIES, town council may rent land for, 81. MUSIC AND DANCING, on upper floor no breach of covenant for quiet enjoyment, /2/. 1078 Index. NEGATIVE COVENANT, how far proviso for re-entry applicable to breacli of, 332. NEGLIGENCE, in management of premises, tenant liable to third party, 777. NET RENT, includes land tax, &c., 128. NEW OR OLD STYLE, in regard to notice to quit, 374. NEW TAXES, covenant to pay taxes usually includes, 591. NEW TENANCY, not created by increase or reduction of rent, 234. NOON, notice to quit at, on the right day, bad, 365. NOTE, PEOMISSORY, payment of rent by, effect of, 426. NOT GUILTY (by statute), pleading, 560. under Distress for Rent Act, 1737... 560. effect of Rules of Court on, 561. NOTICE, forms of, general list of, 980. of intention to exercise option of determining lease, 384. See Option. to landlord having agreed to rejjair, of want of repair, 635. to tenant before proceeding for forfeitui-e, 349. except for non-payment of rent, 350. or forfeiture for bankruptcy, 350. limited relief within year, 354. or for assignment without licence, 350. or for non-inspection of books, 350. mode of serving notice, 355. by leaving it at house, 355. by registered letter through post, 355. by assignee of reversion to lessee, 265. condition precedent to suing for rent, 265. not condition precedent to other actions, 265. by landlord to tenant of distress, 509. to executing sheriff of rent due, 527. where admiralty process, 535. to bailiff of County Court, 534. to landlord in respect of fixtures under Ag. Hold. Act, 673. under Agricailtural Holdings Act, mode of service of, 922. of ejectment, by sub-tenant defendant, to liis landlord, 849. where ejectment in County Court, 868. NOTICE TO QUIT, 357 ; forms, 980. nature and operation of, 357. special stipulations as to, 357. stipulation against, when void, 357. insufficient notice, ineffective, 359. operation of a sufficient notice, 359. when necessary, 359. by express stipulation, 359. by local cvistom, 359. by common law or on implied tenancies, 360. half a year's notice, 360. vmder Agi-icultural Holdings Act, 360. a year's notice required, 361. unless s. 33 exchided, 361. or other express provision, 361. to what holdings act applies, 362. to quit part of holding, 361. mode of serving notice, 362. Index. 1079 NOTICE TO QJJlT—conthnied. when necessary — continued, by infant, 363. after death of lessor or lessee, 363. ■ after assignment of the term or reversion, 363. siibseqiient owners of reversion may avail themselves of previous notice, 363. when unnecessary, demise for a specific term, 364. agreement for lease for a specific term, 364. term limited till a specified event, 364. where notice expressly dispensed with, 364. to monthly or weekly tenant donbtftil, 365. proof of custom for notice, 365. to tenants at will, 366. to tenants at sufferance, not required, 366. to intruders, 366. to mortgagors, 366. to tenants of mortgagor, 366. otherwise under Tenants' Compensation Act, 367. to corporations, 367. implied tenancies, 367. when plaintiff claims by title paramount, 367. after a disclaimer, 367. by whom given, 367. landlord or tenant, 367. agents, 367. tenant for life agent for trustees, 368. assignees, devisees, heirs, &c., 368. subsequent mortgagee, 368. partners, 368. . joint tenants, 369. tenants in common, 369. receivers, 369. to ivhom given, 369. by landlord, 369. notice served but not delivered to tenant, 370. by tenant, 370. form, service and effect, 370. parol notice to quit generally sufiicient, 370. notice in writing usual, 370. forms, App. C, 980. what certainty of intent is sufficient, 371. may give option to enter into new tenancy, 371. " take notice that I intend to surrender," 372. " tell me when tenancy expires," 372. must extend to all demised premises, 373. notice to qiiit part, vmder Agricultural Holdings Act, 36 misdescription in notice, when immaterial, 373. when the notice must expire in ordinary cases, 373. customary half-year's notice, 374. one year's notice, under Agx-icultural Holdings Act, 361. application of that act, 362. new style or old style, 374. must expii-e on last day of some year of tenancy, 375. expiration on anniversary, 375. not " at noon," 375. tenant may stay till midnight, 365. need not mention the particular day, 375. when commencement of tenancy is unknown, 376. when tenant entered in the middle of a quarter, 376. when different parts at different times, 377. no effect by increase of rent, 377. where a tenant holds over, 378. when holding over after three years' agreement, 377. 1080 Index. NOTICE TO QJJlT—continved. form, service and effect — coutintiecl. where possession under void lease, 378. where three months' notice is snfficient by agreement, 378. date of notice, 379. to whom it should be directed and given, 379. attestation of, not necessary, 380. in case of monthly or weekly tenancy, 3G5. when and how served, 380. service on Sunday, good, 380. service on servant, &c., 380, 381. sending notice by post, 381. to agricultural tenants, 362. doubtful force of, 3G2 (»). service on joint tenants, 381. service on corporations, 381. indorsement of service, 382. proof of notice, 382. waiver of notice, 382. creates new tenancy, 382. guarantee for rent ceases, 382. consent of both parties necessary, 3S2. by acceptance of rent or distress, 382. by giving second notice to quit, 383. by other acts, 383. giving of, in pursuance of proviso in lease, 384. option with lessee, 385. notice by executors, 385. delivery of notice, when tenant absconds, 38o. NUISANCE. See Reversioner. right of landlord to stie for, 770. what title sufficient, 771. what sufficient act of injury, 771, 773. measure of damages, 773. injunction by landlord and tenant, 773. liability of landlord to be sued for, 773. letting premises with nuisance, 774. on yearly tenancy, 774. on weekly tenancy, 774. brothel, 775. effect of assignment of reversion, 775. right of tenant to sue for, 776. even where no property in soil, 776. but not before entry, 776. liability of tenant to be sued for, 777. defective fences, 777 ; barbed wire fences, 777. gratings, &c., 777. covenant by lessee against school not within, 707. whether hospital within, 708. expenses of abating under PuVjlic Health Act, 624. whether landlord or tenant liable for, 614. NUESEEY TEEES, &c., power of tenant to remove, 667. compensation under Market Gardeners' Compensation Act, 824. effect of covenant by life tenant to pay for, 11. under Settled Land Act, 11. OCCUPATION by defendant, proof of, in an action, for use and occupation, 583. See Use and Occupation. OCCUPIEE, action by or against, for torts, 776, 777. See Nuisance. rating of, 589. See Bates. Index. 1081 OCCUPIEK— confinuecZ. rating of owner instead of, 906. right of, to ground game, 7*36. txsvially the person rated, 589. rating of owner instead, 597, 906. "OFFENSIVE TRADE," covenant against, 258, 709. OFFER to grant or take a lease, 110. See Proposal. OFFICIAL TRUSTEE of charity lands, 37. ONSTAND, occupation of part of holding by fanner after tenancy ended, 794. customs of country as to, 796. effect of Agricultural Holdings Act on, 825. OPERATIVE WORDS, in a lease, 138. construction of leases, 140. OPTION, to determine lease before end of term, 165. where not specified with whom, is with lessee, 385. notice to determine lease accordingly, 385. notice by executors, 385. delivery of notice where absconding tenant, 386. to purchase lease, 401. " time of the essence of contract, 402. executor receives purchase money, 402. siib-lease with option, not grantable by executor, 52, 402. building lease, grantable by tenant for life, 9. OSIER BEDS, compensation for, under Agricvdtural Holdings Act, 819. OUTER DOOR may not be broken open for a distress, 497. OUTGOING TENANT, modes of determination of tenancy, Chap. VIII., p. 312. partial occupation after end of tenancy, 794. tables of customs of coimtry as to, 795. crops, &c. on the land nnist be given wp, 779. right to away-going crop, 801. compensation to, for straw, hay and dung, 802 ; tillages, 804. (Faviell v. Gaskoin). valuation of tillages, &c., 793, 805. remedy of, is against landlord, 792. custom to look to incoming tenant, bad, 793. remedy against landlord's representative, 793. right of landlord to rent out of valuation, 793. compensation for unexhausted improvements, 805. by ciistom of the country, 805. report of Agricultural Chambers as to, 806. customs continually changing, 807. And see Custom of Country. under Agricultural Holdings Act, Chap. XXI., p. 812. And see Agriculture. OUTGOINGS, covenant to pay, includes extraordinary expense, 592. OVERPLUS of proceeds of distress for rent, 515. to be left with sheriii for owner of goods, 515. ^ action for not leaving in hands of sheriff, &c., 515. no action for rent till sale, 515. surplus unsold goods, how to be disposed of, 515. OVERSEERS, leases by, 33. OWNER, rating of, instead of occupier, 597, 606, 906. OXFORD UNIVERSITY, leases by, 32. is a civil corporation, 32. 1082 Index, paint and papee, , - whether included in " repair," 630. ' Proudfoot V. Hart, effect of, 630. PARCELS (in a lease), how described, 1-46; forms, 967. in agreement for lease, 95. meaning of " appurtenances," 149. land, 147. house, 148. fishery, 149. ferry, 149. way, 149, 151. cellar, 150. staircase, 150. stable, 150. general words under Conveyancing Act, 152. PAEISH OFFICERS, leases to, for workhouses, 79. temporary hirings, without seal, 79. lease to, of not more than 20 acres, 79. lease to for parish offices, 79. PARISH PROPERTY, leases may be made of small pieces of, 33. cottage allotments, 33. recovery of, before justices, 880. PARLIAMENTARY OR PAROCHIAL TAXES, what are, 591. PAROL EVIDENCE, not admissible to exonerate agent signing in own name, 68. of lease for more than 3 years inadmissible, 135. inadmissible to vary lease in writing, 147. when admissible althovigh there is a writing, 147. PARSONS, leases may be made by, 26. lease of parsonage to contain condition for avoidance, 26. lease to, of not more than eighty acres, 73. PART, of reversion, assignment of, 266. reversion of, assignment of, 266. And see Severance. notice to quit, under Agricultural Holdings Act, 361. accei^tance of, as to entirety, 361. of holding, lease of by tenant in common, 13, 14. only, defence as to, in ejectment, 851. holding over part by agricultural tenant, by custom, 794. PART PERFORMANCE, of contract for lease, when specific performance upon, 106. in case of payment of increased rent, 108. of execution of repaii-s, 109. continuance of possession taken before oral contract, 108. oral agreement to support, must be definite, 109. PARTICULARS, and conditions of sale, 257. of breaches, in notice before proceeding for forfeiture, 351. meaning of " particular breach " {Penton v. Burnett), 352. PARTITION, distress for rent reserved for equality of partition, 458. apportionment of rent on severance, 267, 430. And see Severance. PARTNERS. See Joint Tenants. assignment between, when breach of covenant, 701. distress on goods of, 470. renewed lease obtained by one in his own name, 397. one of two lessees has no right of renewal, 393. PARTY''- WALLS, rights respecting, 657. See Fences. Index. 1083 PASTOEAL HOLDING, application of Agricultural Holdings Act to, 813. PASTURE, common of, 734. descriptions and kinds of, 734. appendant, 734. appurtenant, 735. in gross (not an easement), 735. by vicinage, 735. in common fields, 736. laying down, permanent compensation for, 819, 916, 928. consent of landlord required, 819, 916, 928. injunction against ploughing up, 421, 653. " boosey," retention of, by tenant after end of tenancy, 798. penal rent for ploughing up, 421, 653. PAUPEE, assignment over to, by assignee, 273. by executor, 306. by trustee of bankrupt, 289. PAYING, expense of, whether borne by landlord or tenant, 614. PAWNBEOKEE, pledges with, may not be distrained, 474. PAYMENT OP EENT, by mistake to wrong person, 424. to landlord, on land, where no covenant, 425. to landlord wherever he may be, on covenant, 425 to Crown, at Exchequer, 425. to assignee of Crown, on land, 425. effect of payment through post, 426. effect of payment by bills or notes, 426. landlord may distrain notwithstanding, 426. stamp duty on receipt for rent, 427. when payment of groiind rent is, 528. of taxes, 428. deduction of other payments, 428. under Apportionment Act, tenant not resoi'ted to, 435. And see Apportionment. in advance, effect of, 423. PENAL EENT, distress for rent nomine poenge, 418. injunction refused in case of penal rent, 419. whether penalty or liquidated damages recoverable, 418, 420. for selling hay or straw, 421. for ploughing up meadow, 421. in tied-house lease, for not buying lessor's beer, 422. PEPPEECOEN EENT, definition of, 405. lease by trustees at, 35. for first five years, or less, of term, 35. by tenant for life at, 9. enlargement of more than 200 years' lease at, into fee simple, 406. PEEMISSIVE WASTE, 646. See Waste. PEESONAL COYENANTS, not " running with the land," list of, 176. PEESONAL EEPEESENTATIYES, 52, 303. leasehold jn-operty vested in, 52, 303. reversion vested in by Land Transfer Act, 1897. ..303. when not personally liable for rent, 305. personally liable on repairing covenant, 306. And see Executors. PEW, action will lie for use and occupation of, 581. PICTUEE sent back to artist, may be distrained, 474. 1084 Index. PIGS, consumption of cake by, compensation for, 820. PISCARY, common of, 738. (See^FiSHEBT. PLANTATION, rating of, under Eating Act, 1874. . .G08. (^ deduction of rate from rent, 608. •• PLEADINGS, waiver of forfeiture by, 342. PLOUGHING, penal rent for, 421. exemption from distress of beasts of plough, 483. injunction against, 421, 653. POACHEES, arrest of, by tenant, 704. See Game. POLLAEDS, when timber, 654. removal of, by custom of country, 654. POOE EATE, Chap. XV., Sect. 6, p. 606. origin and nature of, 606. occupier rateable generally, 606. occupation by a servant, 607. partial occupation, 607. deduction by tenant under demise for three months or less, 606. Poor Eate Assessment and Collection Act, 1869. . .906. k occupier may deduct rate from rent, 606, 906. % owner may be rated instead of occupier, 606, 906. extension of poor rate acts by Eating Act, 1874... 608. to iron and other mmes, 608. to plantations, 608. to right of sporting, &c., 609. division of rate between landlord and tenant, 608. saving for specific contract otherwise, 608. payment by bankrupt tenant preferentially to rent, 536. POSSESSION, lease under Settled Land Act by limited owTier to take effect in, 7, demand of, before action for recovery of, 845. proceeding before justices, 877. constructive demand of, from tenant at will, 241. vacant, service of writ in case of, 848. defendant in, need not plead title, 852. issue of writ of, 858. though landlord's term expired, 858. execution of warrant of, in County Court action, 860, 865, 868. immunity of officer executing, 868. protection of landlord, if irregularity, 869. POST, remittance of rent through, effect of, 426. user of pi-emises for "post office" only, 715. giving notice to quit by, 381. service of notice before ejectment for forfeiture by, 355. of notice under Agricultural Holdings Act by, 362, 362 (x). POSTHUMOUS HEIE, not entitled to rent due before birth, 303. POUND, impounding a distress, 505 et seq. pound overt, and pound covert, 505. food and water to be supplied to animals impounded, 506. any of the public may supply, 503. recovery of expense by distrainer, 506. liability of distrainer, 506. of poundkeeper, 507. cattle may not be driven more than three miles, 507. fee on impounding (4c{.), 507. Index, . 1085 POUND — continued. impounding' on premises (Distress for Eent Act, 1737) 508 text of s. 10 of that Act, 508. what amounts to an impounding, 448, 508. tenant may not be excluded, 509. tender befoi-e or after impounding, 447. See Tender. corn, (tc, may not be removed, 509. indictment for pound-breach, 525. summary remedy (where distress damage feasant), 526. action for, and treble damages, 526. POWEES, construction of, 212. application of Settled Land Act, 213. lease by tenant for life, 7. power for twenty-one years good for less years, 214. rebuilding and repairing leases, 215. sporting rights, 215. in whom powers may vest, 216. usual covenants, 218. proviso for re-entry, 219. lands usually let, 219. whether lands not before in lease may be demised 219 mode of execution and attestation, 220. defects in leases under powers, how cured, 221. reddendum, 407; express unnecessary, 407. general restriction as to rent, 6, 416. allowance for improvements on agricultural holding, 416. less than best rent for working men's dwellino-s, 416. construction of "best rent," 415, 416. as to fines or premium, 417. effect of improvement of the estate, 418. PRECEDENTS, of lease, &c., 941 (where see a list), how far authority as to " usual covenants," 129. See FoEMS. PEEFEEENTIAL PAYMENTS, in bankruptcy, &c., for rates, wages, &c., 300, 536. charge upon proceeds of distress, 300, 536. PEEMISES, in a lease, what they are, 147. description of the property, 147. See Parcels. description untrue in part does not vitiate lease, 148. general words under Conveyancing Act, 152. act applies to lease by deed only, 152. made in or after 1882... 153. impounding distress on premises, 508. corn distrained may not be removed from, 509. PEEMIUM OE FINE, concise form of receipt (indorsed), 195. for licence to assign, 120, 698. not to be taken except where expressly stipulated for, 698. is this prohibition retrospective ? 698. taking of, by tenant for life, 7. PEESCEIPTION, at common law, 730. under 2 & 3 Will. 4, c. 71 (Prescription Act, 1833), 730. right of common, 730. of use of light, 746. of water, 750. of way, 743. "enjoyment" means continuous enjoyment, 743. PEINCIPAL. See Agent. ratification of unauthorized letting by, 67. 1086 Index. PEIVATE IMPEOVEMENT EATES, power of urban authority to levy, 615. tenant may deduct three-fourtlis from rent, 615. PEOBATE, evidence only of will, 304. execiitor may act before grant of, 304. PEOMISSOEY NOTE, taken for rent, effect of, 426. PEOPEETT TAX, 599. tenant to deduct from rent, 599. landlord to allow of such deduction, 599. penalty for refxisal, 50/., 599. contract not to make deductions void, 599. larger rent subject to reditction, good, 600. landlord may agree to repay (Lamh v. Brewster), 600. when the deduction may be made, 600. action or information for penalty and costs, 600. payable on royalties reserved in demise of brick earth, 600. not on instalments of purchase-money for mine sold, 601. no deduction from succession duty in respect of, 601. PEOPOSAL, for a lease, 110. an unaccepted proposal or offer is no contract, 110. what acceptance is sufficient, 110. revocation of proposal, 110. effect of acceptance of proposal, 110. counter-proposal, 110. no stamp necessary on, or counter-proposal, 101. written acceptance of an oral proposal must be stamped, 101. after counter-proposal original offer cannot be accepted. 111, correspondence after a proposal. 111. signed proj^osal binding after it has been accepted orally. 111. if terms agreed on only as a basis, or subject to further alterations or negotiations, there is no contract. 111. PEOSTITUTES, lodgings let to, rent irrecoverable, 238. penalty for letting house as brothel, 889. PEOTEST, acceptance of rent with protest against waiver, 342. PEOVISO, 192. See Conditions — Forfeitube. for re-entry, construction of, 330; enforcement of, 845. PUBLIC HEALTH ACT, sanitary authority may levy rates under, 612. rating of owner instead of occupier, 612. of outgoing and incoming tenants, 613. of unoccupied premises, 613. leases not interfered with by, 613. expenses of aVjating nuisance, 614. whether borne by landlord or tenant, 614. paying expenses under, 614. private improvement rates under, 615. penalty for letting after infectious disorder, 888. And see Infectious Disease. PUBLIC HOUSE, covenant not to siib-let, 129. proviso for re-entry in lease of, 130. limited to non-payment of rent, 130. relief against forfeiture on, 349. covenant not to use demised premises for, 709. covenant to keep up licences, &c., 713. And see Licence. to jjurchase beer of lessor, 715. And see Tiee House, purchase through agent, effect of, 716. increased rent for not taking lessor's beer, 422. decreased rent for taking it, 716. compensation under Lands Clauses Act for, 716. sale of house held undei*, 716. notice to landlord of convictions under Licensing Acts, 714. Index. 1087 PUBLIC IMPROVEMENTS, leases for (to ratepayers), 81. PURCHASE, option to, exercise of, 401. time of essence of contract, 402. executor receives purchase money, 402. cannot grant lease with option of purchase, 52. claim of insurance money, 402. form of covenant to allow, 949. payment for hay and straw on, 256. building lease with option to, by tenant for life, 9. contract for purchase of reversion, 255. notice of tenant's interest, 255. of term, 256. See Assignment. option of landlord to purchase agricultui-al fixtiu-es, 673. occiipation by intending piu-chaser, 253. See Vendor and Purchaser. QUARTER-DAY, meaning of in reference to payment of rent, 409. in reference to notice to quit, 374. effect of entry in middle of quarter, 376. effect of Apportionment Act on rent due, 434. QUARTER RATING, of occupier of arable land, under Public Health Act, 613. QUARTERLY TENANCIES, 236. what notice to quit necessary, 365. QUIET ENJOYMENT, Chap. XVII., Sect. 8, p. 718. meaning of imi^lied contract for, 718. is warranty against lawful entry only, 718. implied from parol demise, 718. implied from word " demise," 718. not from words "give" or "grant," 718. is excluded by express covenant, 718. which is usually more restricted, 718. implied contract for possession, 719. cesser of, when lessor's estate ceases, 719. breach of, by resignation of ecclesiastical lessor, 720. express covenant usually qualified, 720. usiial form of, 720. "usual" in respect of agreement for lease, 127 (l). distress for land tax no breach, 721. nor re-entry for non-payment of ground rent, 721. lessee put on inquiry as to title, &c. of lessor, 721. payment of rent by lessee no condition to performance of, 722. extends diiring expressed term, not estate of lessor, 722. does not extend to acts of third persons having no title, 723. extends to all acts of landlord himself, 723. to acts of persons claiming through him, 724. by settlement, 724. by prior lease, 724. by mortgage, 724. by lessee of adjacent premises from common lessor, 424. restriction of particular use of land, 725, 726. molestation by action, 725. notice to sub-tenant to pay rent, 726. does not oblige to rebuild after fire, 727. not broken by bursting of watei'-pipe, 727. nor by nuisance of music and dancing on upper floor, 727. runs with land, 727. particulars of breaches of, 727. QUIT, NOTICE TO, nature, time, form, and .service of, 357. See Notice to Quit. exercise of option to determine lease, 384. 1088 Index. QUIT EENT, so called becaiise tenant quit of other services, 405. whether small rent, for long time paid, is, 405. QUITTING POSSESSION, liability of lessee for subsequent rent, &c., 436. See Holding Over. right of lessee to compensation, &c., 791. under Agricultural Holdings Act, 812. EABBITS. See Game. not included in Game Act (1 & 2 Will. 4, c. 32), Y59. included in Poaching Act (25 & 26 Vict. c. 90), 759. damage to crops by rabbits, 766. effect of verbal promise by landlord to keep down, 765. game licence unnecessary to shoot rabbits, 766. statutory right of occupier to kill, 766. See Ground Game. KACK-RENT, means rent of full annual value, 406. RAILWAY, effect of leasehold premises being taken by, 432. apportionment of rent by justices, 432. covenants to remain in force, 432. is not distrainable for rent, 472. nor is its rolling stock, if marked, &c., 482. RATEPAYERS, leases to for public improvements, 81. RATES AND TAXES, Chap. XV., p. 589. covenants to pay, whether " usual," 127. ordinarily fall on tenant, 589. contracts as to, construction of, 589. not usually interfered with by statute, 589. except as to property tax, 589. and under Eating Act, 1874... 608, G20. property tax, 599. See Property Tax. land tax, 601. See Land Tax. sewers rates, 604. See Sewers Rates. poor rates, 606. See Poor's Rates. house tax, 610. county i-ates, 610. borough rates, 611. highway rates, 611. " district rate," &c., under Public Health Act, 612. private improvement rates, 615. expenses of st-ating nuisance, 614. watching and lighting rates, 616. water rates, 616. See Water Rates. gas rates, 619. operation of Eating Act, 1874... G20. deduction of rates from rent, 620. tithe rent-charge, 620. meaning of "parliamentary and iJarochial," 591. obligation to pay new taxes, 591. extraordinary assessments, 592. in what proportion rates and taxes are to be paid, 593. landlord's remedy, 594. tenant's remedy, by deduction from rent, 594. by action, 595. by defence to action for rent, 595. rating owner instead of occupier, 597. text of Poor Rate, &c.. Act, 1869... 906^ first charge of, on distress, if bankruptcy, 536. RATIFICATION of leases made by unauthorized agents, 67. by receipt of rent, &c., where lease under power, 221. of agent's distress, 495. Index. 1089 REAL OR PERSONAL COVENANTS, 172. real covenants run with land, and bind assignees, 172. list of such covenants, 173. personal covenants do not so run, 172, 175. list of such covenants, 176. REAL REPRESENTATIVE, establishment of by Land Transfer Act, 1897... 303. executor or administrator, real estate vested in, Lxxv., 303. in whom land of intestate vested between death and adminis- tration ?...lxxv. text of enactments, lxxv. decisions under Conv. Act, lxxv. question left open, Ixxvi. suggested solution, Ixxvi. REBUILDING, covenant for, construction of, 632. repairing includes in case of fire, &c., 631. RECEIPT, for premium or fine on a lease (concise form), 195. stamp, iDrovisions of Stamp Act, 1891, as to, 196. whether tender may be made in condition of giving, 449. for rent, stamp duty on, 427, penalty for not giving stamped receipt, 427. RECEIVER, leases by, 63. attornment to create tenancy by estoppel, 63. appointment of, pending ejectment action, 63. may determine tenancy by notice to quit, 369. may distrain if appointed by High Court, 462. RECITALS, covenant implied from, if such the intention, 188. RECOVERY OF PREMISES BY LANDLORD, Chap. XXIL, p. 835. by peaceable re-entry, 836. by proceeding in High Court of Justice, 836. substitution of " recovery of land " for " ejectment," 836. special under C. L. P. Act, 1852... 837. for non-payment of rent, 337, 837. for holding over, 839. And see Holding Over. xuider Order XIV. against tenant holding over, 844. on specially indorsed writ, 843. ordinary action, 844. notice before proceeding of breaches proceeded for, 349. relief against forfeiture, 346, 349. for non-payment of rent, 356, 837. By proceeding in County Court, 859. of premises of 50?. yearly value, 859. after expiration or determination of tenancy, 859. for non-payment of rent, 866. by ordinary action, 671. appeal on point of law, 869. By proceeding before justices, 877. tenements held over, 877. if term not more than 7 years, 877. or rent not more than 201., 877. landlord's common law right unaffected, 878. parish proj^erty, 880. cottage allotments, 881. of deserted premises, 883. RECTIFICATION of erroneous lease, 227. only for mutual mistake, 227. in Ch. Div. only, 228. compensation for ha\-ing accepted erroneous lease, 228. REDDENDUM, discrepancy between, and habendum, 154. habendum prevails, save where manifest error, 154. what things are requisite in, 168. formal reddendum unnecessary, 407. L.T. 69 1090 Index. EEDDENDUM— confiwwed. sufficient certainty reqixired, 407. by royalties {Daniel v. Grade), 407. rent may commence before enjoyment, 407. from what rent must issue, 408. entire or several reservations, 408. whole demise void if demise of part illegal, 408. partly obligatory by 18 Eliz. c. 6... 409. computation of corn rent, 409. reservation of rent on alternate days, 409. in advance, 409. corn rent, 407. under college, etc., leases, 409. sliding scale in mining leases, 410. in agricultural leases, 410. construction of reservation, 410. mining leases, " dead rent," and " net rent," 411 . supply of words in the construction, 412. team work, 412. to whom reservation of rent must be made generally, 413. effect of inaccurate reservation, 414. where a sura reserved may enure by way of contract, 415. in leases under power, 415. See Powers. EEDEMPTION OF MORTGAGE, may be effected by tenant, 58. REDUCTION OF RENT, no new term of tenancy by, 234. RE-ENTRY. See Forfeiture, Recovery of Premises. for breach of covenants generally, proviso for, 130. intending lessee has no implied right to as "usual," 130. notwithstanding power of relief against forfeiture, 130. instances of qualified proviso, 28. peaceable, 836 ; by action, 830 ; general index, 835. none for mere breach of covenant, 328. there must be a proviso for re-enti-y, 328. notice necessary before, 349. construction of proviso for, 330. for waste to fixed value, 333. in case of execution, 333. in case of bankruptcy, 286, 334. non-working of mines, 334. non-production of c. q. vie, 335. no sufficient distress, 335, 837. non-payment of rates, 335. REFERENCE. See Arbitration, Award. distinction between arbitration and valuation, 793. effect of Arbitration Act, 1889, upon 794. under Agricultural Holdings Act, 826. See Agriculture. REGISTRAR of County Court, replevy made by, 542. REGISTRATION, of judgments, &c., 28 1-. of writs of execution, 285. of lease in Middlesex, 202. only if for more than 21 years, 202. leases for 21 years or less do not require registration, 202. in Yorkshire, 203. effect of Yorkshire Registry Act. 1884. . .203. leases for 21 years or less need not be registered, 203. in Bedford Level, 203. cases decided under Registry Acts, 203. jDcrmissive under Land Transfer Act, 1587... 205. partially compulsory under Act of 1897... 205. RE-LETTING, after infectious disorder, 888, penalty for, under Public Health Act, 888. Index. 1091 RELIEF AGAINST FORFEITURE, for non-payment of rent, 356. not affected by the Conveyancing' Act, 350. siimmarily, either before or after trial, 356. within 6 months after execution, 356. relief refused within 6 months, 356. for non-insurance iinder repealed Acts, 348. for breaches of covenant generally (Conveyancing Act), 349. by Court on terms, 349. retrospective operation of the Act, 350. excepted cases where not grantable, 350. bankrviptcy, 350. modiiied relief, within year, 35 i. execution, 350. modified relief, within year, 354. agricultural, &c. leases excluded from modification, 355. assignment, without leave, 350. inspection of books in mining lease, 350. may not be excluded by contract, 350. may be gi-anted though proviso for re-entry statutory, 349. grantable in case of agreement for lease, 352. of sub-lessee, whether of whole or part, 353. REMAINDERMAN. tenant for life's lease binding on, 10. if made under Settled Land Act, 10. otherwise void, 10. confirmation of lease by, 10. covenant of, to pay for improvements, effect of, 11. tenancy from year to year to, 234. constituted by acceptance of rent;, 234. REMOVAL, of fixtures, 6S2. See Fixtures. of g oods to avoid distress for rent, 499. See Fraudulent Removal. RENEWAL OF LEASES, .391. et seq. covenant to renew, whether perpettial or not, 391. ordinai'ily not, 391. covenant for, runs with land, 173. what amou.nts to a breach of covenant to renew, 393. covenant in consid. of repair construed against tenant, 395. covenant to renew to two need not be performed to one, 393. forfeiture of right to renew, 394. by not applying- in time, 394. by non-performance of covenants, 395. by trustees, 396 ; to trustees, 82. by minors, lunatics, and married women, 396. without surrender of under-leases (4 Greo. 2, c. 28, s. 6), 399. substituted reversion on renewed leases, 400. tenant right of renewal, 400. by ecclesiastical persons, &c., 25. by miinieipal corporation, 19. remedy where trustees obtain in own name, 396. so by agents, 397, by tenants for life, 397. by a person jointly interested with others, 397. by a partner, 397. by a mortgagee, 397. Vjy a mortgagor, 397. by owner of lease subject to incumbrances, 398. against volunteers, 39S. or purchase with notice, 398. not against a quasi tenant in tail of leaseholds, 398. sale of right of renewal, 398. nature of relief in equity, and upon what terms, 398. nndesirability of renewable leases, 400. 69—2 1092 Index. EENT, Chap. X., p. 408. definition of, 403. reservation of, 407. See Reddendum. apportionment of, 430. Bee Apportionment. distress for, Chap. XI., p. 442. See Distress. satisfaction of , by execution creditor. See Execution {Writ of). waiver of forfeiture by acceptance, &c., of. See Waiver. attachment of rent due, 424. not of rent accruing, 424. no " foreign attachment " in London of, 424. need not be in money, 403. corn rent, 401, 409. special statutory provisions for, in college leases, 409. sliding scale rent in mining leases of settled land, 413. in agricultiu-al leases, by agreement, 410. Different kinds of rent : — rent by way of royalty, 402. rent-service, 404. fee farm rent, 404. rent-charge, 404. rent-seek, 405. quit-rent and chief-rent, 405. building land held at small-rent, 405. peppercorn-rent, 405. rack-rent, lOO. best-rent, 415. " net-rent," 411. dead-rent, 411. penal rent, for ploughing-up, &c., 418. having no money value, extinguishment of, 406. forehand rents and fines, 400. may commence before enjoyment, 407. from what rent must issue, 408. new tenancy not created by increase or reduction of, 234. rvhe7i rent clue : — due in morning, in arrear after midnight, 422. at what time of the day, 442. at what days in the year, 423. when due in advance, 400. Payment of rent : — voluntary, before rent-day, effect of, 423. no priority over other debts due by deceased persons, 424. by mistake to the wrong person, 425. allowance of deductions from rent operate as payment, 425. even where allowed by mistake, 425. payable on land, except where covenant, 425. Avherc covenant, landlord mvist be sought out, 425. remittance of, through post, 420. payment of, by bill or note, does not suspend right to distrain, 420. stamp duty on receipt, 427. when payment of ground rent or rates, taxes, &c., operates as payment pro tanto of the rent, 428. what other payments may be deducted from the rent, 428. set-off and counter-claim, 428. Non-payment of : — effect of, on landlord's title, by Statute of Limitations, 440. tenant at will, acquires freehold, 440, so, yearly tenant without writing, 440. to lessor, no effect of, on landlord's title, 440. except where payment to other than lessor, 440. very of possession, for non-payment of, 837. In County Coiu-t, 860. 501. limit, 860. continuance of lessee's liability after an assignment, 430. after quitting possession, 436. Index. 1093 'KE^T— continued. Non-payment of — continued. continuance of lessee's liability after an assignment— co/iii?iuecZ. where premises are destroyed by fire, 437. expenditure of insurance money on rebiiilding, 438. stipulation for abatement, 439. after eviction by lessor, rent is siispended, 438. but not after eviction by trespasser, 439. effect of non-payment of, on landlord's title, 440. where tenancy at will after 13 years, 440. where yearly tenancy without writing, 44-0. recovery of, by action, Chap. XIII., p. 563. when due by express covenant, 563. who may svie, 564. parties upon joint covenants, 564. on death of landlord or tenant, 565. on assignment of reversion, 262 ; of term, 268. Se e Assignment. writ, indorsement of, 565. pleadings, 566. short forms iinder Common Law Procedure Act, 566. under Eules of Supreme Com-t, 566. lessor, how far to plead title, 566. defences, 567. set-off or counter-claim, 567. Statute of Limitation, 567. illegality, 568. no priority over other debts, 568. See also Use and Occupation. when due on other express contract, 568. limitation, 568. defence of satisfaction by distress, 568. oral agreement to reduce rent, 568. when due on implied contract, 569. what words create a contract, 569. vrrit and pleadings, 569. limitation, 569. KENT-CHAEGE, distress for, 443. on one tenant only for whole rent-charge, 523. EENT FREE, letting of house, 239. devise of house dvu-ing good behaviour, 313. EEPAIES, Chap. XV., p. 626. express covenant to rei:>air by tenant, 626. is " usual," 128 ; but not proviso for re-entry for breach, 130. runs with land, 173. breaches before execution of lease, 627. covenant to repair " forthwith," 627. to repair and keep in repair " during the term," 627. to repair after notice, 633. suspension of notice by negotiations for sale, 633. general covenant to repair, how construed, 628. " tenantable repair," 630. " good tenantable repair " (Froudfoot v. Hart), 630. old premises, effect of, on, 628. to " keep " in good, means to " put " in good, 628. whether " paint " included, 630. in sub-lease, effect of (Walker v. Hatton), 628. making sub-lessee " third party," 278. measure of damages, for non-repair, injury to reversion, 639. where buildings about to be pulled down, 640. substantial damages though buildings pulled down, 640. though premises re-let with repairing covenant, 641. mesne landlorcf repairing to save forfeiture cannot recover from sub-lessee, 641. buildings erected during the term, 639. 1094 Index. EEPATES — continued. express covenant to repair hy teiiant^continued. in case of fire, tenant bound by covenant, 631. application of insurance money to, under Building Act, 632. covenant to rebuild, 632. conditional or qualified covenants to repair, &c., 633. liability of executor personally on, 306, 307. express covenants to repair hy landlord, 635. notice of want of repair condition precedent to suing on, 635. construction of particular covenants, 635. party- wall, 635. drains, 636. rebuilding, 636. statement of inability to rebuild not repudiation of contract, 636. rights of tenant on breach by landlord, 636. tenant may not qiiit, 636. may do repairs, and deduct cost from rent, 636. implied covenants to repair, ^'c. none by landlord, 638. adjoining houses, 638. by tenant to use in tenant-like manner, 636. implied from other covenants, 636. on implied new tenancy, 636. liability of tenant from year to year, 637. to keep wind and water-tight, 637. remedies for breaches of covenants to repair, 639. by exercise of right of entry to repair, 639. no right of entry without express agreement, 639. by action for damages, 639. mcasiu'e of daiuages (during tei-m), injury to reversion, 639. at end of term, 640. by entry or ejectment, 6i2. non-repair is continuing breach, 643. effect of covenant to repair after notice, 642. notice before proceeding, 349. relief against forfeiture, 349. REPLEVIN, nature of proceedings for, 539. when applicable, 539. an optional and iTnusiial remedy, 539. not when distress only for more than is due, 539. may be used until goods sold, 540. w^hen replevy made by mistake, 540. mode of proceeding , 540. preliminary considerations, 540. who may replevy, 540. whether all or part should be replevied, 541. against whom proceedings to be taken, 541. kind of security, 541. replevy made by registrar of County Coiirt, 541. security i-equired, 542. in County Court, 542. on removal by certiorari, 546. companies and infants may give security, 544. deposit may be made, 515. County Court rules as to security, 544. where action may be brought, 545. costs in CoxTuty Court, 545. when action may be in High Court, 546. replevisor cannot change from Coimty to High Court, 546. within what time to be brought, 547. fees in County Court, 547. action in County Court, 547. time of commencing action, 547. plaint and particulars, 547. Index. 1095 REPLEVIN— continued. actio7i in County Court — continued. no other causes of action to be joined, 547. mode of trial, 547. jiu-y may be had by either party, 548. evidence for plaintiff, 548. evidence for defendant, 548. evidence in reply, 549. judgment, 549. execution same as in other actions, 549. appeal to High Court on question of law, 550. action in High Court, 550. time for commencing action, 550. pleadings, 550. defence, 551. avowry and cognizance, 551. damages for plaintiff, 551. proof of special reason for suing in High Court, 552. when judgment a bar to new action, 552. costs, 552. execution, 553. writ de retorno habendo, 553. capias in withernam, 553. new trial, 554. action removed to High Court by certiorari, 554. defendant only may remove, 554. procedru'e to remove, 554. procedure in action, 555. EESCUE of a distress, 524. what amounts to, 524. when it naay be made, 525. not after impounding, 525. indictment for, at common law, 525. treble damages for, by Act of William & Mary, 526 ; text of Act, 898. summary remedy for (distress damage feasant), 526. not applicable to distress for rent, 526. EESEEYATION, of rent, 407. -See Eent, Chap. X., p. 403. construction of, 410. See Eeddendum. in leases under powers, 415. See Powers. of trees, &c., 190. See Exceptions. of game, construction of reservation of game, 759. See Game. EESIDENCE on the premises, covenant for, 703. runs with land, 174. covenant for, not " usual," 129. eesteaining statutes, limit leases by ecclesiastical corporations, 22. EESTEICTIVE COVENANT, in lease of "tied house," effect of, 715. See Tied House. of lessor, notice to lessee of, 173, 276, 706. sale of public-house held under, 716. sale under, generally, 258. affecting block of houses, effect of, 707. compensation in respect of, under Lands Clauses Act, 716. by landlord not to let adjoining house for similar trade, 712. by tenant, forms of, 969 ; by landlord, 973. EE SUMPTION of part of land by lessor, 377. tmder Agricultiiral Holdings Act, 361. EETOENO HABENDO, writ of, how executed, 553 ; capias in withernam, ib. 1096 Index. EEVEESION, as to lease in, 221. restriction on lease in, by limited owner, 7. assignment of i-eversion, 262. See Assignment. severance of reversion, 206. See Severance. distress incident to i-eversion, 454. by persons not having the reversion, 458. injury to, measure of damages in action for non-repair, 639. Action b]i Reversioner ; — against stranger, for damage to reversionary interest, 770. form of action, 770 ; statement of claim, 771. what title siifficient, 771. what is a sufficient act of injur j', 771. cause of action accrues, when damage sustained, 772. injunction against Electric Lighting Co., 773. measure of damages, 773. Action against Reversioner : — letting of premises with nuisance, 774. where yeai-ly tenancy, 774. where weekly tenancy, 774. continuance of nuisance, 774. effect of assignment of reversion, 775. liability for nuisance contemplated by lease, 776. RIGHT OF ENTRY, may be disposed of by deed, 2. but not a right to enter for a previous forfeitui-e, 2. See Re-entry. RIOT, forcible entry by three persons is, 893. RIVER. See Watercourses. right of lessee to, ad medium filum, 140. ROAD, right of, 738. compensation for, under Agricultural Holdings Act, 819. And see Wat. ROLLING STOCK, of railway, exempt from distress, 482. ROOTS, distress for rent on, 470. ROYALTY, is a rent, 403. and may be distrained for, if sufficiently certain, 407. property tax on, 600. RUN WITH LAND, what covenants so run, or not, 173. See Land. similar covenants rim or not with reversion, 263 . RYE-GRASS, growing under corn, sheriff may not sell under execution, 899. landlord may distrain on, 470. SALARIES, charge of, on distress in ease of bankruptcy, &c., 536. SALE, of reversion, must be in writing, 255. notice of tenant's interest, 255. of term, conti-act for, 256. And see Assignment. by auction, 258. particulars and conditions of sale, 258. title of vendor, 259. piirchaser to assume that covenants performed, 260. of goods under a distress, 509. double damages where no rent owing, 557. And see Distress. SALEABLE UNDERWOODS, operation of Rating Act, 1874, on, 608. Index. 1097 SANITARY AUTHORITIES, leases of allotments by, 33. SCHEDULE of fixtures, furniture, &c., 194. when not annexed by mistake, 194. how the articles should be described, 194. SCHOOL, whether keeping, is a " trade " within covenant, 707. not a nuisance, 707. apportionment of rent, where land taken for, 432. SEA, OVERFLOW OF, apportionment of rent where land lost by, 432. SEALING AND DELIVERY of a lease, 200. See Escrow. whether lease by deed should be signed, 201. SECOND DISTRESS, in case of insufficiency of first, legal, 522. illegal, if first sufficient, for same rent, 523. action for goods taken on, 523. where distress for rent-charge on more than one tenant of grantor, 523. request by tenant to landlord to withdraw distress, 523. with liberty to make a second distress, 524. SECURITY FOR RENT, effect of taking a bill or note, ic, 426. effect of bond for, 227. SECURITY IN REPLEVIN, 542. See Replevin. SEQUESTRATOR OF BENEFICE, distress by, 463. SERVANT, occupation by, is not a tenancy, 250. effect of " service franchise," 251. appearance by in ejectment, 849. SERVICE of notice to quit, 370, 380. sending notice to qiiit by post, 381. under Agricultural Holdings Act, 362. whether by registered letter through post, 362. of notice before proceeding for forfeiture, 349. by post in registered lettei-, 355. of writ in action for recovery of land, 847. in case of vacant possession, 848. of summons in County Court, 867. in case of vacant possession, 874. SERVICE FRANCHISE, effect of, 252. SET-OFF, against rent, 425. if rent against compensation money, imder Ag. Hold. Act, 925. SETTLED LAND, leases by trustees of, 34 ; rent under, 413. statutes relating to leases of, 4. consolidated by Act of 1877. ..5, 34 (t). how far superseded by Act of 1882... 34. lease of, by tenant for life, 6 ; rent under, 415. And see Life. SEVERANCE, of reversion, rights of assignee upon covenants in lease, 266. under Law of Property Amendment Act, 267. apportionment of condition for re-entry for rent unpaid, 267. under Conveyancing Act, 267. apportionment of conditions generally, 267. of term, rights of lessor and assignee upon, 275, 276. assignee may be sued for rent of part, 275. but may be distrained on for whole rent, 275. no contribution amongst assignees, 276. 1098 Index. SEWEES, 604. the acts, 604. Metropolitan Sewers Acts, 605. sewers within urban districts under Public Health Act, 605. rates, landlord liable for, 605. tenant may contract to pay them, 605. mvist pay any increase even where landlord agrees to pay all sewers rates, 605. not a " parliamentary tax," 605. but is a " scot or outgoing," 606. And see Drainage and Drains. SHEEP, distress of, illegal, where other sufiicient distress, 483. sheep of subtenant privileged, 484. consumption of cake by, compensation for, 820. SHERIFF, may not take goods till arrears of rent paid, 527. text of s. 1 of Landlord and Tenant Act, 1709 to that effect 527. arrears to be for not more than one year, 527. saving for crown debts, 528. provision for tenancies less than yearly, 528. text of s. 67 of Execution Act, 1844... 528. there must be an actual removal, 529. there must be a subsisting tenancy, 529. whether Act applies to ground rents, 529. it applies to forehand rents, 529. landlord entitled to full year's rent, 530. executors may claim arrears, 529. liability of sheriff, 530. non-liability of execution creditor, 530. sheriff' may prove value of goods to be less than rent, 530. crops seized by, liable to distress, 531. whether express notice to sheriff" necessary, 531. such notice should always be given, 532. sheriff's diity thereupon, 532. no duty to advance money for i-ent, 532. notice to execution creditor of rent due, 532. how sheriff should act if such notice not complied with, 528. summary application against, for not paying landlord, 533. piu'chaser from, must remove goods in reasonable time, 534. restriction on sale of hay, &.C., Ijy, 471, 899. on sale of clover growing under corn, 900. full text of Sale of Farming Stock Act, 1816. ..899. SHIP, in covirse of building, not exempt from distress, 470. embedded in soil, belongs to landlord, 149. SHOOTING, right of, must be let by deed, 88. And see Game. SHOP, covenant not to use premises as, 708. occupation of, in business hours only, 706. SIGNATURE, whether necessary to lease by deed, doubtful, 201. necessary to agreement for lease, 90. what signature sufficient, 99. signed proposal, binding after oral acceptance. 111. by agent, proper form of, 6S. SILOS, compensation for, under Agricultui-al Holdings Act, 819. SITTING TENANT, no compensation to, under Agricultural Holdings Act, 819. allowance to, by limited owner, 819. SLIDING SCALE OF RENT, in case of mining leases under Settled Land Act, 9, 410. in agricultural leases, 410. i Index. 1099 SMALL HOLDINGS, letting of, by Covmty Council, 40. SMALL TENEMENTS, n f s-q srr S71 See recovery of, by action m County Court, 8o9, 86G, 871. &ee Tenements. SOLICITOR, . preparation of lease and counterpart bj, 200. on whom costs fall, 20G. evidence of employment, 20G. ^^ charges of, under " Remuneration Order 207. election of to charge otherwise_^than by scale, 209. stamps and disbursements, 207. negotiations, 207. . text of Order so far as apphcable, 911. SPECIAL CASE, , tt n- A«f s-^in for High Court, under Agricultural Holdings Act 830. whether appeal by motion substitxited tor, 860. SPECIFIC PEEFOEMANCE, of contract for lease, action for, 103. assigned to Chancery Division, 103. combination of damages with, 103. ^ grantable by County Court, if value not more than oOOl., lOd. See Agreement for Lease. decree for lease, 126. " usual covenants," 127. SPOETING. See Game. rio-ht of, must be gi-anted by deed, 84, 88. rating of, under Eating Act, 1874... 609. reservation of right of, to landlord, 761. STABLE, case where it will not pass in lease, 150. STAIECASE, use of, right to, 150. of lodger, 238. of tenant of flat, 728. unsound damao-e by to tenant's workman, landlord not liable, 773. STAMPS, Stamp Act, 1870, was a consohdatmg act, 195. superseded by consolidating Act of 1891... 196. selected sections of Stamp Act, 1891.^.936. when stamp to be impressed, 196. when it may be adhesive, 196. amount of stamp duty, 196. stamp on counterpart, 196. stamping at trial, 199. ^. -,r>n stamp to be affixed is the stamp proper at execution, 199. schedule of duties, 939. in case of additional rent, 196. objection to staiui) at trial, 198. stamping after execution, for evidence, 199. express penalty for not stamping lease, 199. period for affixing stamp, 200. remission of penalty, 200. on agreement for leases, same as on lease, 100. except where term exceeds thirty-five years, 100. written proposal, accepted orally, 101. penalty for not stamping^ 101. receipts for rent, duty on, 427. STANDINGS, ^. ^ . ^ „ .^, for machinery, rent of, cannot be distrained tor, 404. STATUTE, discharge of covenants by, 182. STATUTE OF FEAUDS (29 Car. 2. c. 3), under s. 4, agreements for leases to be m writing, 90. bee Frauds, Statute of. 1100 Index. STATUTES OF LIMITATION, as to distress for arrears of rent, 489. See Limitation. STEAM ENGINE, power of trader tenant to i-emove, 069. agricultural tenant may not remove, at common law, 671. alteration of law by Agricultural Holdings Act, 1883... 673. And sec Fixtures. STEWARDS, &c., L ,,- power of, to grant leases, 67. See Agent. STRAW, &c., covenant not to remove, &c., 802. distress upon, where contract not to remove, 471, 899. restriction on removal of, in case of bankruptcy, 295. payment for, contract for, effect of on assignment of reversion, 256. STRAWBERRY BEDS, waste is committed by ploughing up, (!75. by nurserymen out of ordinai-y course of management, 675. compensation for to market gardener quitting, 824. STRAW, MAN OF, assignee may assign over to, 273. See Pauper. executor of assignee may and ought to assign to, 306. STREET, duty of tenant to fence area fronting, 777. expenses of paving, whether payable by landlord or tenant, 614. STYLE, old or new for purposes of notice to quit, 374. SUBLEASE, for whole term is assignment, 269, 276. o-encral power of lessee to sublet, 15, 276. of tenant for less than years, 15. precedent of, 965. rio"ht of lessor against sublessee, 276. may distrain, 276. may eject for forfeiture, 276. cannot sue for rent, 276. cannot compel to take active steps against nuisance, 277. registration of, with ground landlord, 129. condition for, not "usual," 129. sales of subleases, 277. covenant to perform covenants of head lease, 277. is contract of indemnity, 277. bringing in sublessee as third party, 278. of one of two houses held under one lease, 278. notice to sublessee of covenants of head lease, 706. restriction on, without licence, by covenant, 694. whether covenant " usual," 129. it runs with land, 174. licence extends to one permission only, 696. " arbitrary " refusal of licence, 697. breach of covenant by letting lodgings, &.C., 699. waiver of breach, 703. outlay by sublessee, when part performance, 107. rights of sublessee in case of bankruptcy, 296. rights of mesne landlord doing repairs to save forfeiture, 641. sifblessee not affected by surrender of mesne landlord, 278. by tenant at will, effect of, 241. relief against forfeiture of, 353. See Relief against Forfeiture. SUBSTITUTED COMPENSATION, under Agricultural Holdings Act, must be fair and reasonable, 819. SUBSTITUTED TENANT, use and occupation against, 579. vise and occupation by, 574. Index. 1101 SUFFERANCE, tenants on, 245. distinction between, and tenants at will, 245. tenant of empty house, 246. ejectment of, without notice, 246. demise by estoppel by, 246. not entitled to notice to quit, 366. SUNDAY, service of notice to quit on, good, 380. whether distress on good, 487. SUNEISE AND SUNSET, distress for rent must be between, 487. proof of time, strict against landlord, 487. SUPPORT, EIGHT TO, no implied covenant by landlord of adjoining houses, 638. SURETY FOR LESSEE, bond for performance of covenants, &c., 227. extent of his liability in case of bankruptcy, 289. SURRENDER, what is a surrender, 313. on condition, 315. not by cancellation, 314. when it may be made, 315. requisites of good surrender, 315. by deed or note in writing, 314. of more than three years' term, must be by deed, 314. particidar instances of, 316. by act and operation of law, 317. by acceptance of a new lease, 316. what is a sufficient new lease, 317. effect of invalid new lease, 318. by estoppel, 319. by consent and acceptance of possession, 319. by miitual agreement, 319. by acceptance of key, 320. substitution of another tenant, 321. not by acceptance of insufficient notice to quit, 320. operation of, 323. will not prejudice previoiis subleases, 323. assio'ned rents reserved on subleases amounts to assignment of reversion, 324. rent previously due, payable to original lessee, 324. accruing rent lost at common law, 324. saved by Apj)ortionment Act, 324. of part by lessee, 325. by assignee, 325. apportionment of rent, 325. after assignment of future rent, 326. by whom and to whom made, 325. surrenderee must be the immediate reversioner, 325. who are capable of surrendering, &c., 326. what estate may be surrendered, 326. renewal of lease without surrender of subleases, 399. SURVEY AND VALUATION, of dilapidations and fixtures, 687. landlord can only enter by agreement, 687. of fixtures, 688. as between outgoing and incoramg tenants, 688. remuneration to surveyor, 689. costs of consulting, recoverable by lessor, 3o4. SURVIVING LESSOR, action by him for use and occupation, 574. SUSPENSION of rent, in case of fire, 439. See Eviction. il 1102 Index. TAIL, tenants in, demises by, 1, 2. after possibility of issue extinct, &c., 4. distresses by, 456. TAXES. Chap. XV., p. 589, and see Ratks and Taxes, Property Tax, &c. covenants to jjay, construction of, 589. are usual covenants, 128. proj^erty tax, 599. land tax, 601. what are "parliamentary," or "parochial," 591. obligation of distraining landlord to pay tenant's taxes, 536. TEAM WOEK, payment of rent by, 403 (c). extension of, to hauling coals, 413. but not to finding cart or other vehicle, 413. TEAZLES, right of emblements in, 789. TECHNICAL TEEMS in lease, construction of, 145. TEMPEST, house destroyed by, not waste, 650. exiH'ess obligation to repair damage by, 631. exception in repairing covenant, 632. effect of damage by on covenant for rent, 432, 439. TENANT, on sufferance, 245. at wiU, 238. for less than a year, 236. from year to year, 230. under lease, Chap. V., p. 132. for life, or lives, 154, 155. And ■'iee Sufferance — Will, &e., &c. TENANT EIGHT of renewal, 400. to compensation for improvements, 801. under Bankruptcy Act, 287, 289. TENANTS COMPENSATION ACT, 1890, compensation by evicting mortgagee under, 810. if no notice, fuller compensation, 811. TENDEE, before distress for rent makes distress illegal, 447. after distress, but before impounding, 447. what amounts to an impounding, 448. after impounding too late to make distress illegal, 447. to whom a tender of rent may be made, 449. must be in full, with expenses, 449. TENEMENTS, smaU, i-ecovery of, in county courts, where holding over (50?. limit), 859. where half-year's rent unpaid, 866. exclusion of ordinary, where .special procedure applies, 873. before justices of the peace (20Z. limit), 877. cottage allotments, S81. rating of landlord instead of tenant of, 597, 906. implied warranty of landlord as to liabitableness of, 185. TEEM, meaning of, 153. office and use of habendum, 153. the lease for life or lives, 154, 155. commencement of terms for years, 158. determination of duration of term, 163. prolongation of, by custom of counti'y, 794. table of customs, 796. TEEMINATION OF TENANCY, in what ways, 312. at will,- by death, 240. Index. 1103 TEEMINATION OF TEl^A'NCY— continued. by demand of possession, 240. by effluxion of time, 312, 464:. when term limited conditionally, 313. by surrender in express terms, 313. by operation of law, 316. by merger, 316. by forfeiture, 328. relief against, 346. by notice to quit, 357. by exercise of option to determine lease, 384. by disclaimer, 387. by death, 390. not by cancellation of lease, 314. See Forfeiture — Merger — Surrender, &c. tenant's duty to deliver up possession, &c., 779. consequences of holding over, 782. See Double Eent — Double Value — Holding Over. THEATRE, no action against assignee for boxes of, 176. use and occupation for saloon of, 581. covenant to use premises for, effect of, 715. THIRD PAETT, bringing in sublessee as, 278. "TIED HOUSE," covenant by lessee of to buy beer, &c., of lessor only, 715. not favoured by Court, 715. good beer, &c., must be supplied, 715. runs with land, 174. binds assignees with notice, 716. satisfied by purchase through agent, 716. compensation for if taken under Lands Clauses Act, 71 6. TILLAGE, contracts resiDecting, 801. compensation for, 804. extent of obligation to till, 186, 644. penal rent for converting meadow, &c., into, 421. injunction against such conversion, 653. TIMBER. See Treus. exception of in lease, 190. meaning of, 653. allowance of, for repairs, 178. TIME, when essence of contract for lease, 106. in case of lease of mines and ecclesiastical leases, 123. in case of exercise of option to purchase, 402. determination of tenancy by effluxion of, 312. limitation of, in case of distress, 489. See Limitation, Distress. apportionment of rent in respect of, 433. See Apportionment. TITHE RENT-CHARGE, payable by landlord if contract of tenancy after Act of 1891. ..621. repayable to landlord if contract before Act of 1891... 621. and recoverable by distress, 621. notice to tithe-owner of occupier's liability, 622. in lieu of extraordinary chai-ge on hop-grounds, & c, 623. Act of 1891 does not apply to, 623. TITLE, effect of to right of way, 125. want of, in action for specific performance, 115. defendant in ejectment, if in possession, need not plead, 852. proof of, by plaintiff, 85 1. a tenant cannot deny his landlord's title, 225. but he may show that it has expired, 225. and that other person than claiming assignee has title, 225. interrogatories as to exj^iry refused, 853. 1104 Index. TITLE — continued. a lessor may not deny his own title to demise, 224. implied contract for, at common law, 259. altex'ation of law by Vendor and Purchaser Act, &c., 2, 259. only as to title to freehold, 259. application of Conveyancing Act to leasehold, 2, 259. effect of word " demise," 718. landlord need not set out, in suing for rent, 566. except where title derivative, 566. derivative title of defendant, 566. of claimants in action to recover land, 854. where claimant's title expires after service of the wTit, 858. effect of covenant for quiet enjoyment. Chap. XVII., s. 8, p. 718. TITLE DEEDS. See Deeds. right to, goes with right to land, 262. TOLLS, leases of, 86. TOOLS OF TEADE, if in actiial use, absolutely exempt from distress, 468. if not, conditionally exemjit, 4S5. up to ol. absolutely exempt, 479. whether scholars' or lawyers' books are exempt, 486. TORTS to property, actions for, by occiipier, 776. by reversioner, 770. TEADE or " business," covenants against particiilar trades, 704. not " usual covenants," 128. run with land, 174. illegal, effect of, 705. against trade of butcher, 707. against hoardings for advertisements, 705. for user as dwelling-house only, 705. occupation of shop in business hours, 706. against sale of beer, &c., 700. beer house, beer shop, 710. against "offensive " trades, what is breach, 709. whether keeping lodging-house is a trade, 706. whether keeping a school is, 707. whether user for hospital is, 708. waiver of forfeiture, 711. continuing breach, 711. covenants for particular trades, not " usual," 128. run with land and reversion in public-house leases, 174. to keep farm stocked, 712. to work mines, 712. to keep up theatre, 715. for exclusive user as post-office, 705. piiblic-hoixse covenants, 713. to keep house open, 713. not to endanger re-licence, 713. notice to landlords under Licensing Acts, 714. covenant not to use adjoining house for similar, 712. lessee bound by restrictive covenants of lessor, 706. contracts to deal with particular persons, 715. obligation to buy beer of lessor, 715. And see Tied House. purchase of coals, 716. compensation for, under Lands Clauses Act, 716. sale of house held under restrictive covenant, 716. exemption from disti-ess for purpose of, 474. See Distress. of tools of trade (conditional), 485. up to 51. (absolute), 479. fixtures for purposes of, removable, 667. See Fixtures. teees and TIMBEE, exceptions of, 190. what is timber generally, 657. by the custom of the country, 657. Index. 1105 TREES AND TUIBEU— continued. saleable underwood, rating of, 608. when pollards are timber, 658. windfalls of sound timber belong to landlord, 659. of decayed timber to tenants, 659. trees belong to landlord, but bushes to tenant, 658. construction of covenants as to, 659 waste by cutting down, 660. for what purposes trees may be cut withovit waste, 660. no waste by cutting down excepted trees, 661. injunction against eixtting down, 654. TRESPASS, action for, fov illegal distresses, 557. by tenant against landlord for an expulsion, &c., 780. against third persons, by landlord, 770. by tenant, 776. eviction by trespass does not svispend rent, 439. trespasser not liable to be sued for use and occupation, 572. in pursuit of game, arrest of, by tenant, 764. action against, by tenant, 764. TRUSTEES, of settled estates, leases by, 36. lease of mansion house, with consent of, 8. notice to, by leasing tenant for life, 7. bona fide lessee need not inquire as to, 7. powers of infant tenant for life, exerciseable by, 45. tenant for life agent for, to give notice to quit, 368. of charities, leases by, 37 ; to, 73. of banJvrupts, disclaimer of leases by, 291. And see Bankruptcy. of friendly societies, leases to, 80. of public baths, leases to, 80. of public libraries, museums, &c., leases to, 81. of renewable leaseholds, leases to, 82. generally, leases to, 82. obtaining renewed leases in their own names, 396. renewal of leases by, under Trustee Act, 397. payment for renewal out of trust funds, 397- actions by, for use and occupation, 575. disti-ess for rent by, as joint tenants, 454, 460. whether bound to proceed for forfeiture, 348. TURBARY, common of, 737. TURNIPS, taken in execution, restriction on distress of, 471. UMPIRE, appointment of, by Land Commissioners under Ag. Hold. Act, 918. by Board of Agriculture, 918. UNCERTAINTY as to commencement or diu-ation of term, 163. UNDER-LEASE, general power of lessee to grant, 15. And see Sub-lease. UNDERWOOD, rating of saleable, 608. UNION WORKHOUSES, leases for, 79. UNIVERSITIES, leases by, 32. at common law, 3. Universities and College Estates Acts, 32, 33. what kind of leases, 32. prohibition of fines, 33. UNOCCUPIED HOUSES, rating of, to general district rate, 613. recovei-y of, by justices' warrant, 883. And sec Deserted Premises. tenancy on sufferance by occupation of, 246. I..T, 70 1106 Index. USE AND OCCUPATION, Chap. XIV., p. 570. compensation for, what it is, 570. how far eonsisteut with express demise, 570. not strictly founded on conti'act, 571. not recoverable upon demise by deed, 571. entry of tenant required, 572. eli'ect of disputed title, 572. relation of landlord and tenant necessai'j^ 573. when recoverable by lessee who has sub-let, 574. fi'om lessee who has sub-let, 576. effect of prior or subsequent mortgage by landlord, 574. effect of ejectment by landlord, 574. corporations can recover, 575. are liable for, 579. when recoverable by cestui que trust, 575. by auctioneer, 570. when recoverable from tenant who has ceased to occupy, 57C. from lessee holding over, 577. whei'e sub-lessee holds over, 577. from tenant evicted from jjart of holding, 578. from substituted tenant, 579. from assignee, 579. from executors or administrators, 579. from trustee in bankruptcy, 579. from churchwardens and overseers, 579. from intended lessee, 580. from intended purchasers, 580. for incorporeal pi'operty, 581. writ in action for, 581. pleadings in action for, 581. defence of Statute of Limitations, 583. evidence in action for, 583. for plaintiff, 583. for defendant, 584, 585. what amount recoverable, 585. damages accriio de die in diem, 585. effect of destruction of premises by fire, 587. of eviction from part, 580. of tenant ceasing to occupy, 586. araoTint recoverable when premises are held over, 587. no reduction for acts of third party, 587. how far writ of inquiry required, 588. USER of premises in particular manner, contract for, 712. stocking of farm, 712. working of mines, 712. keeping up public-house, 709. covenant I'unning with land, 174. theatre, 715. post office, 715. contract against particular user : general object of, 704. runs with land, 174, 704. how far '" usual," 704. illegal trades, 705. advertisements. 705. trade of butcher, 707. trade or business, 707. school, 707. hospital, 708. shop, 708. public-house. &c., 709. waiver ot forfeiture, 711. continuing breach, 711. USUAL COVENANTS, contract for, will be implied, in contract for lease, 127. what are " usual covenants," 128, to pay rent, 128. Index. 1107 USUAL COVENANTS— conimwed. what are " usual covenants"— continurd. to repair, 128. exception for fire not " usual," 128. to pay taxes, &c., 128. covenant aj^ainst alienation not " usual," 128. nor not to trade, 128. nor to register sub-lease with ground landlord, 129. nor to reside in public-house, 129. whether "usual" to insert proviso for re-entry for breach of, 130. limitation of to covenant for rent, 130. even in public-house lease, 130. USUALLY LET, what lands considered (in leases under powers) as, 219. VACANT POSSESSION, meaning of, 846. . ^ o,- ou service of writ in ejectment where premises vacant, 84/, »-i». tenant must give, at end of term, 780. And sec Deserted Premises ; Recovert op Premises. VALUATIONS, ^ ^ ^ survey and valuations of dilapidations and fixtures, b&/. right of landlord to enter and view, 687. between outgoing and incoming tenants, 688. surveyor's remuneration, 689. straw, hay and dung (at end of term), 802. tillages, 804-. appraisement on a distress, 510. See Appraisement. distinction between, and arbitrations, 793. VALUE, ANNUAL, ^ . ^ , ^,.,-, of 501. tenement for purpose of County Coiu-t ejectment, 8bU. VENDOR AND PUECHASEE, occupation as intended purchaser, 252. „^^.„fpri when liable for use and occupation after conveyance executed, 252, 580. occupation by vendor, 253. not liable for use and occupation, 253. And see Sale. VENUE, formerly local in ejectment, 852. abolition of local, by Judicature Act, 852. VEEANDA, non-removal of, as fixture, 663. And see Fixtures. VESTINd OEDEE, in banki-uptcy. Court may make, 295. in favour of sub-lessee, restriction on, 296. may be made in favour of landlord, 295. VICINAGE, common by, 735. " VINTNEE," definition of, 710. VOID LEASE, entry makes tenancy from year to year on terms ot, i-io, -ii. distinction between, and voidable, 210. " void" means at election of lessor, 210. how a lease avoided, 211. on what grounds, fraud, illegality, &c., 211. not after forfeiture waived, 211. what matters ex post facto avoid a lease, 211. alterations, erasures, &c., 211. altered deed may be good as evidence, 212. not cancellation, 212. not breach of covenant, unless proviso for re-entry, 3L». WAGES, preferential payment of in bankruptcy, 536. charge of on proceeds of distress, 537. 1108 Index. WAINSCOT, removing, is waste, 6J.7. WAIVEE, of a forfeiture, 341. what amounts to a wairer generally, 341. lessor must know of the forfeiture, 343. no waiver by merely lying by, 341. by distress, receipt of rent, or other acts, 341. by distress, up to date of waiver, 342. by pleading, 342. not by receipt of rent, &c., after ejectment, 343. after continuing breach. 344. costs of, payable by tenant, 344, 316. of covenant not to sub-let, 345. not to trade, 345. to rejDair, 345. to build houses, 3 15. restriction on effect of waiver (Law of Prop. Act, 1860), 346. of notice to quit, 382 ; creation of new tenancy by, 382. of a disclaimer, 390. WARPING, compensation for, under Agricultural Holdings Act, 819. WALL, of part of building let, tenant may remove advertmt. from, 150. WARRANT, to distrain, 495. no stamp on, 495. usiially iiidemnifies broker, 496. outer door may not be broken open, 497. for possession, in county court action for holding over, 8G0, 865. for rent unimid, 866, 867. in ordinary cases, 876. mode of execution of, 868. date and duration of, 868. protection of bailiff, 868. of landlord if irregiilarity, 869. of justices of the peace (small holding held over), 878. trespass by wrongfid oVjtaining of, 878. stay of, by tenant sviing for trespass, 878. of justices for recovery of parish property, 880. for recovery of cottage allotment, 881. of London magistrate to constable to view deserted premises, 885. WARRANTY (IMPLIED^, that person acting as agent has sufficient authority, 68. of landlord that furnished house is fit for occupation, 184. no warranty of continuance of fitness, 185. no wari'anty in case of unfurnished house or land, 184. unless let at certain low rent, 185. action for damages, 185. WASTE, definition of, 646. avoidance of lease of settled land for non-impeachment of, 6. otherwise under Settled Land Act, 1882... 7. voluntary or commissive waste, 646. permissive waste, 646. liability of tenants for years for, 651. meliorating waste, 646. not restrainaVjle by injunction, 647. no damages for, 647. equitable waste, 647. what acts are voluntary, 647. in warrens, parks, &c., 648. as to trees, 660. by digging mines, &c., 648. not rejjairing sea walls, &c., 648. changing the nature of property, 648. by building a house, 649. Index. 1109 WASTE— continued. construction of leasinof power against, 649. counter-claim for, under Agricultural Holdings Act, 649. remedies for, 650. statutes against, and decisions on them, 650. Statute of Marlebi'idge, 650. Statute of Glouce.«ter, 650 ; repeal of, 650. constrviction of these statutes, 650. whether permissive waste within them, 651. what tenants within them, 651. liability of executor, 652. measure of damages, 653. injunction against voluntary, 653. by pulling down house, 653. by ploughing up jjasture, 653. by cutting down trees, 654. by injuring fixtures, 654. no injunction against permissive, 654. WASTES, leases of parcels, 64. encroachments on, are for benefit of landlord, 781. approvement, inclosui-e of, 740. WATCHING AND LIGHTING EATES, 616. WATEK, ^«* 'PiUC<'c fUiJi [lv*j(JU ) Ou^ fS?^ . exception of, construction of, 191. to be supplied to animals impounded, 506. watercourse, definition of, 750. WATER-CLOSET, use of, by lodger, 23S. WATEECOUESES, 750. definition of, 750. nature of rights in natural streams, 751. the alveus or bed of a river, 753. artificial cuts or drains, 735. implied grant or reservation of drains, &c., 756. licence for drains, 756. extinguishment or suspension of drains, itc, 757. undergi-ound water, 757. surface water, 758. compensation for, under Agricultural Holdings Act, 819. WATER MEADOWS, compensation for, under Agxicultural Holdings Act, 819. WATEE EATES, payable by tenant, 616. exception in case of small tenements, 617. whether included in " rates," 618. rate specially agreed for, not included, 618. cutting off water for non-payment of, restriction on, 617. text of s. 4 of Water Comp. Eeg. Act, 617. under Public Health Act, 617. WAY-GOING CEOP, right of tenant to, by custom {W\ggl(is.y-KOTth v. Dallison), 801. against whom it may be claimed, 801. WAYS, leases of, 87. whether they pass by lease, 151. under Conveyancing Act, by general words, 152. rights of, 741. tenant cannot acquire easement against landlord, 741. reasonable user of, 742. private ways, 745. 2&3 Will. 4, c. 71, s. 2... 743. limited right of, 744. of necessity, 745. made pursuant to private acts of parliament, 746. 1110 Index. WEARING APPAEEL, distress on, for rent, 476. exemption up to 5/., 470. or if actually in use, 476. WEAVER, materials sent to, privileged from disti-ess, 474. WEEKLY TENANCIES. See Lodgings notice to quit required, 365. what length of notice, fVyo. limit to landlord's claim against execution creditor-, 528. no action for double value on holding over, 785. action for double rent, 787. liability of landloi'd for nuisance of tenant, 774. WIFE, lease by, 46. y F. Stroud. 30s. 1890. Landlord and Tenant. — Woodfall'6 Law of Landlord ami Tenant. l»Jlh Kdit. I'.y J. M. Lelv. 38s. 1^98. 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